Garfield Hts. v. Martin

[Cite as Garfield Hts. v. Martin, 2021-Ohio-2310.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

S/O CITY OF GARFIELD HEIGHTS, :

Plaintiff-Appellee, :
No. 109694
v. :

MALCOLM MARTIN, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: July 8, 2021

Criminal Appeal from the Garfield Heights Municipal Court
Case No. CRB-1902407

Appearances:

Jeffrey M. Jerome, Garfield Heights Prosecuting
Attorney, and Joseph P. Morse, Assistant Prosecuting
Attorney, for appellee.

Myron P. Watson, for appellant.

MARY J. BOYLE, A.J.:

Defendant-appellant Malcolm Martin brings this appeal challenging his

convictions for assault and aggravated menacing. Appellant argues that his

convictions are against the manifest weight of the evidence. After a thorough review

of the record and law, this court affirms.
 I. Factual and Procedural History

The instant matter arose from an August 25, 2019 incident involving

appellant and victim J.R. Appellant and the victim got into an argument in the

victim’s home. According to the victim, appellant slapped and choked her during

the argument. The victim further alleged that appellant drew a handgun, pointed it

at her, and threatened to kill her.

Garfield Heights police officers were dispatched to the scene. After

speaking with appellant and the victim, officers placed appellant under arrest.

On August 26, 2019, a complaint was filed charging appellant with

(1) assault, a first-degree misdemeanor in violation of R.C. 2903.12(A)(2), and

(2) aggravated menacing, a first-degree misdemeanor in violation of R.C. 2903.21.1

Appellant pled not guilty to the complaint.

A bench trial commenced on February 28, 2020. The victim and

Garfield Heights Police Officer Spence Sabelli testified on behalf of the city.

Appellant testified on behalf of the defense.

The victim testified at trial that she arrived home and encountered

appellant inside the home. She testified that appellant put a gun to her head and

asserted that he was going to kill her. (Tr. 6.) The victim explained that appellant

also slapped and choked her during the encounter. (Tr. 6-7.)

1 The assault charge pertains to CRB-1902407-A, and the aggravated menacing
charge pertains to CRB-1902407-B.
 The victim feared for her life. She contacted her cousin and advised her

cousin to call the police. Garfield Heights police arrived at the scene, and the victim

informed officers what transpired with appellant.

On cross-examination, the victim acknowledged that she texted

appellant that the charges would go away if appellant paid her money. (Tr. 9.) She

also conceded that she frequently argued with appellant about other women.

(Tr. 11.)

Officer Sabelli testified that he responded to the scene of the altercation.

Upon arrival, appellant and the victim were outside of the home. The victim was

visibly shaken. The victim informed him that appellant physically assaulted her and

that she sustained injuries to her head and neck. (Tr. 14.) The victim also alleged

that appellant threatened her at gunpoint.

Officers recovered a loaded 9 mm handgun from appellant’s person at

the scene. (Tr. 15.) Subsequent testing confirmed that the gun recovered from

appellant was operable.

Appellant testified in his own defense at trial. Appellant acknowledged

that he and the victim had an argument before police arrived at the scene. Appellant

explained that when the victim returned to the residence, she confronted him about

text messages and phone calls with other women that the victim observed on

appellant’s phone. (Tr. 27.)
 Appellant also conceded that he was in possession of a firearm, that he

retrieved the gun before leaving the residence, and that he turned the gun over to

police. Appellant denied, however, assaulting or threatening the victim. (Tr. 21-24.)

Appellant alleged that the victim told him she would not appear in

court if he paid her money. (Tr. 24.) Specifically, he testified that after the

August 25, 2019 incident, he received text messages and phone calls from the victim

and from other phone numbers with which he was not familiar. Appellant testified

about the nature of these communications with the victim:

Well, [the communications involved] a number of things. One
obviously about the female that I was down entertaining. Two, [the
victim], she stated that if I paid her a certain amount of money, that she
would not show up in court [for] the first court date. I forgot the date.
I’m sorry.

I didn’t, I didn’t do what she asked me to do. I didn’t pay her and the
first court date, she showed up and I asked her when she text me —
after the first court date she text me and I said I thought you wasn’t
going to show up if I paid you? And she said well, you didn’t pay me so
that’s why I showed up to court. So I took that as, excuse me. I took
that as a bribe like she was trying to extort me and have something over
my head to keep control of the situation.

(Tr. 23-24.) The text messages were admitted into evidence at trial. See defense

exhibits A, B, and C.

At the close of trial, the trial court found appellant guilty of both

charges. The trial court explained that the credibility of the witnesses was a central

issue in the case and the court’s verdict. (Tr. 35.) The trial court determined that

the victim had been “more than honest.” (Tr. 35.) On the other hand, the trial court

found appellant’s testimony “not to be very credible.” (Tr. 35.)
 The trial court sentenced appellant on the assault offense to 180 days

in jail, with 90 suspended, and a $100 fine.2 The trial court sentenced appellant on

the aggravated menacing offense to a suspended 180-day jail sentence and a $100

fine. The trial court placed appellant on inactive community control sanctions for

three years. The trial court ordered appellant to have no contact with the victim.

The trial court issued a judgment entry on February 28, 2020, setting

forth its verdict and appellant’s sentence. It is from this judgment that appellant

filed the instant appeal challenging his convictions on April 15, 2020. Appellant

assigns one error for review:

I. The trial court finding [appellant] guilty of the charges of assault and
aggravated menacing was against the manifest weight of the evidence.

II. Law and Analysis

In his sole assignment of error, appellant argues that his assault and

aggravated menacing convictions are against the manifest weight of the evidence.

A manifest weight challenge questions whether the prosecution met

its burden of persuasion. State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-

Ohio-3598, ¶ 12. A reviewing court “‘weighs the evidence and all reasonable

inferences, considers the credibility of witnesses and determines whether in

resolving conflicts in the evidence, the jury clearly lost its way and created such a

manifest miscarriage of justice that the conviction must be reversed and a new trial

ordered.’” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997),

2 On December 21, 2020, the trial court granted appellant’s motion to stay
execution of his sentence pending the outcome of this appeal.
quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). A

conviction should be reversed as against the manifest weight of the evidence only in

the most “exceptional case in which the evidence weighs heavily against the

conviction.” Id.

In support of his manifest weight challenge, appellant argues that “the

credibility issues weighed heavily in his favor” and, as a result, “[he] was entitled to

a not guilty verdict.” Appellant’s brief at 3. Specifically, appellant contends the trial

court erred in finding the victim to be credible, and “more than honest,” based on

“[the victim’s] admission that she committed a crime.” Appellant argues that an

“evaluation of [the victim’s] criminal conduct is critical in analyzing and evaluating

her credibility.” Appellant’s brief at 4. Appellant appears to argue that the victim

committed the offense of soliciting a bribe.

As an initial matter, we note that appellant mischaracterizes the

victim’s trial testimony. Appellant suggests that the victim admitted at trial that she

committed or attempted to commit the offenses of bribery or extortion. Appellant’s

argument is unsupported by the record. The victim admitted to sending the text

messages to appellant after the incident. She did not, as appellant suggests, admit

to committing or attempting to commit a crime.

After reviewing the record, we cannot conclude that appellant’s

convictions are against the manifest weight of the evidence. The record reflects that

the victim’s statements to police at the time of the incident were consistent with her

trial testimony regarding the critical questions in this case — whether appellant
physically assaulted her during the argument and whether he threatened her at

gunpoint. Officer Sabelli confirmed that the victim’s statements at the scene were

consistent with her testimony at trial. (Tr. 16.)

Both the victim and appellant testified at trial about the text messages

that were exchanged after the August 25, 2019 incident. Defense counsel cross-

examined the victim regarding these text messages and prior arguments between

her and appellant about other women. As noted above, appellant opined that the

victim was attempting to bribe or extort him. Furthermore, the text messages were

admitted into evidence at trial. Assuming, arguendo, that the victim was attempting

to bribe or extort appellant in the after-the-fact text messages, this would not negate

appellant’s criminal conduct during the altercation.

Accordingly, the trial court, as the trier of fact, had sufficient

information about the text messages, the victim’s purported financial motives, and

the victim’s purported history of jealousy to assess the credibility of the victim and

her testimony. See State v. Solomon, 8th Dist. Cuyahoga No. 109535, 2021-Ohio-

940, ¶ 59. The trial court also had sufficient information to assess the credibility of

appellant. See State v. Davis, 8th Dist. Cuyahoga No. 107925, 2019-Ohio-4672,

¶ 66; State v. Sumlin, 8th Dist. Cuyahoga No. 108000, 2020-Ohio-1600, ¶ 58.

As noted above, the trial court ultimately determined that the victim

was more truthful and credible than appellant. The trial court concluded,

this case comes down to credibility. Actually, the alleged victim has
been more than honest. She admitted to [sending the text messages].
I find [appellant] not to be very credible. Very arrogant. I can’t imagine
 what he was doing at [the victim’s] house to begin with. Obviously he
didn’t live there. [The victim] was gone. Obviously, and she may have
instigated the fight, but I don’t think that she would have lied about it.
I think that she would have just kept fighting. I don’t think she would
have called the police unless she was threatened, so I find [appellant]
guilty of both charges[.]

(Tr. 35.)

Appellant argues that his version of the events and theory of the case

were “far more persuasive” than the victim’s. The defense’s theory at trial was that

the victim, not appellant, was the instigator of the argument, and that she fabricated

the allegations against appellant in order to bribe him and profit financially, or out

of jealousy. The city’s theory, on the other hand, was that the argument between

appellant and the victim escalated, appellant physically assaulted the victim, and

appellant threatened the victim at gunpoint.

“‘[A] conviction is not against the manifest weight of the evidence

simply because the [finder of fact] rejected the defendant’s version of the facts and

believed the testimony presented by the [prosecution].’” State v. Jallah, 8th Dist.

Cuyahoga No. 101773, 2015-Ohio-1950, ¶ 71, quoting State v. Hall, 4th Dist. Ross

No. 13CA3391, 2014-Ohio-2959, ¶ 28. The trial court, as the finder of fact, did not

lose its way in resolving the conflicting theories based on the evidence presented at

trial.

Finally, appellant appears to argue that the victim’s testimony was not

believable based on the fact that she was standing outside of the residence with

appellant when the police arrived on scene. He appears to suggest that the victim
would not have been standing with appellant had he physically assaulted her and

threatened her with a gun. Appellant’s argument is misplaced.

The record reflects that appellant and the victim were not actively

arguing or fighting when officers arrived on scene. There was certainly no evidence

that appellant continued to assault or threaten the victim outside of the residence,

or in the presence of the responding officers. Accordingly, we cannot say that

appellant’s convictions are against the manifest weight of the evidence based on the

victim’s presence with appellant outside of the residence at the time police arrived.

After reviewing the record, we find appellant’s convictions are not

against the manifest weight of the evidence. We do not find that in resolving

conflicts in the evidence, the trial court, as the trier of fact, clearly lost its way in

finding appellant guilty of assault and aggravated menacing. Furthermore, this is

not the exceptional case in which the evidence weighs heavily against appellant’s

convictions.

For all of the foregoing reasons, appellant’s sole assignment of error

is overruled. Appellant’s convictions are not against the manifest weight of the

evidence.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

Garfield Heights Municipal Court to carry this judgment into execution. The
defendant’s convictions having been affirmed, any bail pending appeal is

terminated. Case remanded to the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

MARY J. BOYLE, ADMINISTRATIVE JUDGE

LARRY A. JONES, SR., J., and
MARY EILEEN KILBANE, J., CONCUR