[Cite as State v. Kuhar, 2012-Ohio-1622.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                        C.A. No.     25928

          Appellee

          v.                                         APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
TIMOTHY E. KUHAR                                     COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
          Appellant                                  CASE No.   CR 11 01 0013

                                 DECISION AND JOURNAL ENTRY

Dated: April 11, 2012



          BELFANCE, Judge.

          {¶1}   Defendant-Appellant Timothy Kuhar appeals from his convictions in the Summit

County Court of Common Pleas. For the reasons set forth below, we affirm.

                                                I.

          {¶2}   Mr. Kuhar was indicted in January 2011, on one count of domestic violence in

violation of R.C. 2919.25(A), a felony of the third degree and one count of domestic violence in

violation of R.C. 2919.25(C), a misdemeanor of the first degree. In March 2011, a supplemental

indictment was filed charging Mr. Kuhar with one count of violating a protection order in

violation of R.C. 2919.27, a misdemeanor of the first degree.

          {¶3}   The matter proceeded to a jury trial and a jury found Mr. Kuhar guilty of the

charges. Mr. Kuhar was sentenced to a total of three years in prison. Mr. Kuhar has appealed,

raising two assignments of error for our review, which we have rearranged to facilitate our

review.
                                                2


                                                II.

                                  ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED WHEN IT OVERRULED A TIMELY DEFENSE
       MOTION FOR ACQUITTAL PURSUANT TO CRIMINAL RULE 29 AS
       THERE WAS NOT SUFFICIENT EVIDENCE PRESENTED BY THE STATE
       OF OHIO TO ESTABLISH A PRIMA FACIE CASE OF DOMESTIC
       VIOLENCE TO WARRANT THE CASE BEING SUBMITTED TO THE JURY.

       {¶4}    Mr. Kuhar asserts in his second assignment of error that his conviction for

domestic violence was based upon insufficient evidence as the State failed to prove that Mr.

Kuhar “‘knowingly cause[d] or attempt[ed] to cause physical harm[,]’” thus requiring the trial

court to grant Mr. Kuhar’s Crim.R. 29 motion.

       {¶5}    “We review a denial of a defendant’s Crim.R. 29 motion for acquittal by

assessing the sufficiency of the State’s evidence.” State v. Frashuer, 9th Dist. No. 24769, 2010-

Ohio-634, ¶ 33. See also State v. Morris, 9th Dist. No. 25519, 2011–Ohio–6594, ¶ 12. In

determining whether the evidence presented was sufficient to sustain a conviction, this Court

reviews the evidence in the light most favorable to the prosecution. State v. Jenks, 61 Ohio St.3d

259, 274 (1991). Furthermore:

       An appellate court’s function when reviewing the sufficiency of the evidence to
       support a criminal conviction is to examine the evidence admitted at trial to
       determine whether such evidence, if believed, would convince the average mind
       of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is
       whether, after viewing the evidence in a light most favorable to the prosecution,
       any rational trier of fact could have found the essential elements of the crime
       proven beyond a reasonable doubt.

Id. at paragraph two of the syllabus.

       {¶6}    We note that Mr. Kuhar was convicted of two counts of domestic violence, only

one of which contains the element that the defendant knowingly cause or attempt to cause

physical harm. See R.C. 2919.25(A). Thus, we focus on Mr. Kuhar’s conviction for violating
                                                   3


R.C. 2919.25(A). R.C. 2919.25(A) states that “[n]o person shall knowingly cause or attempt to

cause physical harm to a family or household member.” Mr. Kuhar concedes that the victim was

a “family or household member[;]” in addition, Mr. Kuhar stipulated to his prior domestic

violence convictions. “A person acts knowingly, regardless of his purpose, when he is aware

that his conduct will probably cause a certain result or will probably be of a certain nature. A

person has knowledge of circumstances when he is aware that such circumstances probably

exist.” R.C. 2901.22(B). “‘Physical harm to persons’ means any injury, illness, or other

physiological impairment, regardless of its gravity or duration.” R.C. 2901.01(A)(3).

       {¶7}    Mr. Kuhar and the victim had a longstanding, tumultuous relationship and had

been living together as a couple for several years. At the time Mr. Kuhar and the victim lived in

a house with Brian Nemchev, who subleased space to them. Mr. Kuhar’s charges stem from an

incident that took place on January 2, 2011.

       {¶8}     Officer Charles Artis, an officer with the Akron Police Department, testified that

he responded to a domestic violence call on January 2, 2011, at approximately 11 pm. Officer

Artis spoke with the victim. He testified that the victim was “scared[]” and “appeared shaken

up.” She relayed the following to Officer Artis:

       She said that she and her live-in boyfriend, Mr. Kuhar, had gotten in an argument
       over her medication. She told me she had several prescription medications that
       she just got filled that day and he’d been arguing with her all day asking her if he
       could have some of her prescription medications.

       She said at that time right before the argument she had been in her bedroom
       where she locked herself in and hid her medications from him. She had to use the
       restroom. She thought he was leaving, so when she came back, he was in her
       room looking for her medication. She said they got into an argument. He got
       upset when she wouldn’t let him have any and he grabbed her and threw her
       down. At that point she said that’s when she began screaming for help. * * *

       She said they continued to argue a little bit more, but then said he threatened to
       kill her, he spit in her face.
                                                4


       {¶9}    Officer Artis further testified that, while the victim did not have any visible

injuries, she did complain that her back hurt. The victim signed charges against Mr. Kuhar,

stating that she “was tired of being [Mr. Kuhar’s] punching bag.” In addition, she completed a

statement in which she asserted that Mr. Kuhar picked her up by her neck and threw her across

the room and that he slapped her and spit on her.

       {¶10} Based on the foregoing testimony, we conclude that the trial court did not err in

overruling Mr. Kuhar’s Crim.R. 29 motion. The State presented sufficient evidence that, at the

very least, Mr. Kuhar knowingly attempted to cause the victim physical harm. Accordingly, we

overrule Mr. Kuhar’s second assignment of error.

                                 ASSIGNMENT OF ERROR I

       THE VERDICT OF THE TRIAL COURT WAS AGAINST THE MANIFEST
       WEIGHT OF THE EVIDENCE SINCE THE STATE OF OHIO FAILED TO
       PROVE EACH AND EVERY ELEMENT OF THE CRIME OF DOMESTIC
       VIOLENCE BEYOND A REASONABLE DOUBT.

       {¶11} Mr. Kuhar asserts in his first assignment of error that his conviction for domestic

violence is against the manifest weight of the evidence. Again, Mr. Kuhar only appears to

challenge his conviction for violating R.C. 2919.25(A), which was discussed above. Essentially,

Mr. Kuhar asserts that the victim is not credible and, therefore, his conviction for domestic

violence is against the manifest weight of the evidence. We do not agree.

       {¶12} In reviewing a challenge to the weight of the evidence, the appellate court:

       [m]ust review the entire record, weigh the evidence and all reasonable inferences,
       consider the credibility of witnesses and determine whether, in resolving conflicts
       in the evidence, the trier of fact 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986).
                                                  5


       {¶13} In light of all the evidence, we cannot say the jury was unreasonable in believing

the victim’s statements to police, her 911 call, and various voice mails she left, as opposed to her

testimony at trial.   The victim, who was ultimately called as a court’s witness, was very

uncooperative and argumentative at trial, sometimes refusing to answer questions and once

stating that she hated the prosecuting attorney. It is clear from her testimony that she still loved

Mr. Kuhar and did not want him to go to prison. During most of the prosecutor’s questions the

victim stated that she did not remember the events of that day. She claimed that she was heavily

medicated when she wrote her statement to police as she suffers from seizures, multiple

sclerosis, and dementia and takes approximately ten different medications a day. She further

claimed that Mr. Kuhar was only trying to keep her from overmedicating herself, that he did not

harm her, and that she did not want him prosecuted. However, the victim’s 911 call to police,

her oral and written statements to the police, and several voice mails she left, paint a different

picture; cumulatively those evidentiary materials indicate that Mr. Kuhar did throw, slap,

threaten, and spit on the victim, that he had assaulted her in the past, and that the victim was tired

of Mr. Kuhar’ physical assaults against her.

       {¶14} We note that, in voice mails the victim left following the incident in question, the

victim continued to maintain that Mr. Kuhar assaulted her and that he had done so in the past. In

addition, she expressed both her desire that Mr. Kuhar remain in jail and her unhappiness with

the punishments Mr. Kuhar had received in the past. Thus, despite the victim’s assertions at trial

that she did not remember the events and had difficulty with her short-term memory, the voice

mails indicate otherwise, and are consistent with the statements the victim made to the police.

Moreover, Officer Artis who has special training in dealing with people with mental illnesses

testified that there was nothing about his interactions with the victim that indicated to him that
                                                 6


the victim suffered from dementia. Officer Artis testified that, the night of the incident, the

victim did not appear to have any trouble remembering the details of what occurred.

       {¶15} Mr. Kuhar testified in his own defense. He stated that he met the victim at a time

prior to the development of her health issues when she was working as a nurse. The victim

stopped working as a nurse after she began having seizures. Mr. Kuhar testified that the victim’s

memory began deteriorating and he began dispensing her medication for her. He agreed that he

and the victim have had a tumultuous relationship and admitted to prior incidents of domestic

violence. He indicated that the victim’s memory problems have worsened over time and that she

would sometimes forget whether she had taken her medication or not. On the day in question,

Mr. Kuhar testified that he was watching TV and went to check on the victim and found her

asleep in an odd position. He was concerned and woke her up. She then began asking for her

medications.   Mr. Kuhar explained that she had already taken them and went downstairs.

According to Mr. Kuhar, the victim came downstairs, demanded her medication and hit Mr.

Kuhar with a tray when he failed to comply. She went back upstairs and continued to demand

her medication. Mr. Kuhar followed the victim upstairs, put the medications back in her purse

and told her he was not going to give the medications to her. Mr. Kuhar then proceeded back

downstairs. Mr. Kuhar testified the victim came downstairs and hit him with the tray again, then

went back upstairs and called police. Mr. Kuhar denied assaulting the victim. While it is true

that Mr. Kuhar had a few injuries to his face that he asserts were from the victim hitting him with

the tray, the officers who responded to the call testified that the injuries appeared to be older and

did not appear to be from the incident at issue. Moreover, there is at least a suggestion in one of

Mr. Kuhar’s jailhouse phone calls with the victim that he wanted the victim to blame Mr.

Nemchev for the incident as opposed to himself.
                                                7


       {¶16} Thus, the jury was confronted with conflicting testimony.         After a thorough

review of the record, we cannot say that its resolution and credibility determinations were

unreasonable or created a manifest miscarriage of justice. It was not unreasonable for the jury to

conclude that the victim’s statements to police on the day of the incident were accurate and

truthful and that her testimony at trial was not. It was obvious that the victim did not want to

testify and that she did not want to see Mr. Kuhar go to prison; thus, the jury’s reluctance to

believe either that the victim did not remember the events of January 2, 2011, or that Mr. Kuhar

did not harm her or try to harm her is not unreasonable. Moreover, we cannot say the jury was

unreasonable in disbelieving Mr. Kuhar’s version of events. We note that Mr. Nemchev testified

that he heard “some indistinctive arguing, yelling, and a couple loud thumps on the floor,” and at

some point the victim yelled for help. The jury could have reasonably concluded that Mr.

Nemchev’s testimony supported the victim’s statement to the police, at least more so than Mr.

Kuhar’s version of events in which he asserts a complete lack of physical violence on his part.

In addition, it would not be unreasonable for the jury to have questioned Mr. Kuhar’s credibility

given the number of jailhouse calls between himself and the victim; between January 12, 2011,

to February 23, 2011, Mr. Kuhar spoke with the victim from jail 26 times. Given the number of

times the two spoke, and the fact that Mr. Kuhar attempted to conceal the calls through the use of

another inmate’s pin number, the jury could have reasonably inferred that Mr. Kuhar was

attempting to influence the victim and her testimony.       Accordingly, we conclude that Mr.

Kuhar’s conviction for domestic violence is not against the manifest weight of the evidence.

                                               III.

       {¶17} In light of the foregoing, we overrule Mr. Kuhar’s assignments of error and affirm

the judgment of the Summit County Court of Common Pleas.
                                                 8


                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     EVE V. BELFANCE
                                                     FOR THE COURT



CARR, P. J.
DICKINSON, J.
CONCUR.


APPEARANCES:

ANGELA M. KILLE, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
