[Cite as State v. Dobbins, 2013-Ohio-3800.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :   JUDGES:
                                               :
                                               :   Hon. William B. Hoffman, P.J.
       Plaintiff-Appellee                      :   Hon. Sheila G. Farmer, J.
                                               :   Hon. Patricia A. Delaney, J.
-vs-                                           :
                                               :   Case No. 2012CA00203
                                               :
MICHAEL GLENN DOBBINS                          :
                                               :
                                               :
       Defendant-Appellant                     :   OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Massillon Municipal
                                                   Court, Case No. 2012-CRB-01461



JUDGMENT:                                          AFFIRMED




DATE OF JUDGMENT ENTRY:                            August 26, 2013




APPEARANCES:

For Plaintiff-Appellee:                            For Defendant-Appellant:

ROBERT ZEDELL                                      MICHAEL THOMPSON
MASSILLON LAW DEPARTMENT                           4774 Munson St. NW
Two James Duncan Plaza                             Suite 400
Massillon, Ohio 44646                              Canton, OH 44718
Stark County, Case No. 2012CA00203                                                     2



Delaney, J.

      {¶1} Appellant Michael Glenn Dobbins appeals from the September 11, 2012

and October 9, 2012 judgment entries of the Massillon Municipal Court finding him guilty

upon bench trial of one count of domestic violence. Appellee is the state of Ohio.

                        FACTS AND PROCEDURAL HISTORY

      {¶2} At the time of these events, appellant had been married to Rosza Dobbins

for six years and the couple had three children together, ages five, three, and one. The

family lived at 5753 Oak Drive, Jackson Township, Stark County, Ohio. Mrs. Dobbins is

originally from Hungary but is a recently naturalized U.S. citizen who speaks and

understands English.

      {¶3} On June 5, 2012, Ptl. McDannold of the Jackson Township Police

Department reported to the domestic violence shelter in downtown Canton to speak with

Mrs. Dobbins in reference to an incident which occurred on May 18, 2012.             Mrs.

Dobbins described an incident of physical violence and completed a sworn affidavit. A

few hours after meeting with officers, Mrs. Dobbins e-mailed photos to the Jackson

Township Police Department which she said were related to the incident.

      {¶4} Mrs. Dobbins stated around 8:00 p.m. on May 18, 2012, she put her

youngest child to bed and the other two children were downstairs with appellant

watching television.   Mrs. Dobbins went downstairs and found her daughter with

appellant on the couch, playing with appellant’s iPhone. Mrs. Dobbins grabbed the

phone from her daughter. She told police and later testified appellant jumped up and

wrestled her down, grabbed her by the arm and sweater, and pushed her to the floor.
Stark County, Case No. 2012CA00203                                                         3


       {¶5} After the incident, appellant and Mrs. Dobbins both went upstairs and

appellant made a call on his phone. Mrs. Dobbins testified appellant started recording

her on his phone and called his attorney. He also told her his parents were coming over

to the house. She was afraid that if she called the police that evening, she might go to

jail and lose her children.

       {¶6} Mrs. Dobbins told police and later testified she took photos of herself with

her own phone after the May 18 incident. On May 21, she showed the photos to her

mother-in-law in an attempt to prove to her husband’s family that he hurt her.

       {¶7} Events came to a head on June 4, 2012. Appellant attended a graduation

ceremony and while he was gone, Mrs. Dobbins moved out of the residence. When

appellant returned, he found the house empty and called police. No one was arrested

that evening. The next day, appellant’s parents came over to the house for the 3-year-

old’s birthday.   On the pretext of going to McDonald’s, Mrs. Dobbins put the three

children in her car and drove off, followed by appellant and his parents. Mrs. Dobbins

drove to the Crisis Center and was directed to the domestic violence shelter. During her

stay at the shelter, Mrs. Dobbins was urged to contact police about the May 18 incident.

       {¶8} A number of witnesses testified on appellant’s behalf.          Two friends of

appellant’s spoke to Mrs. Dobbins about why she wanted to end the marriage; they

testified she never told them about any physical violence.          Appellant’s sister and

brother-in-law testified that Mrs. Dobbins had asked to meet with them privately in late

March or early April, 2011, and told them she wanted a divorce. We note appellant’s

sister testified, “The first thing I asked her was has [appellant] ever hit her or the kids,”
Stark County, Case No. 2012CA00203                                                     4


and Mrs. Dobbins said no. Appellant’s brother-in-law also testified as a photography

expert and opined that the photos presented by Mrs. Dobbins had been altered.

       {¶9} Appellant testified on his own behalf. In reference to the May 18 incident,

he stated he had the iPhone, not his daughter, and Mrs. Dobbins tried to grab it from

him. She kept pulling on his arm and hand but he did not let go; she let go and fell

back, sitting down on a small bed beside the couch. He denied leaping over the couch,

grabbing her, pushing her down, getting on top of her, or tearing her sweater. After the

incident appellant’s friend called on the phone and Mrs. Dobbins told him she wanted a

“quickie divorce.” Appellant stated Mrs. Dobbins was upset with him that night because

he had questioned her earlier about $242,000 she had spent.

       {¶10} Appellant was charged with one count of domestic violence pursuant to

R.C. 2919.25(A), a misdemeanor of the first degree. Appellant entered a plea of not

guilty and waived his right to a trial by jury. The case proceeded to bench trial and

appellant was found guilty as charged. The trial court sentenced appellant to a jail term

of 180 days with 147 days suspended, to be served as 3 days in a domestic violence

intervention program and 30 days on electronically monitored house arrest. Appellant

was further ordered to have no contact with the victim and to pay a fine of $500 plus

court costs.

       {¶11} Appellant now appeals from the judgment entries of his conviction and

sentence.

       {¶12} Appellant raises one assignment of error:
Stark County, Case No. 2012CA00203                                                        5


                               ASSIGNMENT OF ERROR

       {¶13} “I.   THE TRIAL COURT’S FINDING OF GUILTY WAS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE AND WAS NOT SUPPORTED BY

SUFFICIENT EVIDENCE.”

                                        ANALYSIS

                                             I.

       {¶14} In his sole assignment of error, appellant contends the judgment of the

trial court is against the manifest weight and sufficiency of the evidence.

       {¶15} The legal concepts of sufficiency of the evidence and weight of the

evidence are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio

St.3d 380, 1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard

of review for a challenge to the sufficiency of the evidence is set forth in State v. Jenks,

61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which

the Ohio Supreme Court held, “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.”

       {¶16} In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing

the entire record, weighs the evidence and all reasonable inferences, considers the
Stark County, Case No. 2012CA00203                                                       6


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 overturned and a new trial ordered.” State v. Thompkins, supra, 78

Ohio St.3d at 387. Reversing a conviction as being against the manifest weight of the

evidence and ordering a new trial should be reserved for only the “exceptional case in

which the evidence weighs heavily against the conviction.” Id.

       {¶17} Appellant was convicted of one count of domestic violence pursuant to

R.C. 2919.24(A), which states, “No person shall knowingly cause or attempt to cause

physical harm to a family or household member.”           Appellant does not challenge

appellee’s evidence on any specific element of the offense; instead, his arguments are

premised upon Mrs. Dobbins’ credibility. It is axiomatic, however, that the weight of the

evidence and the credibility of the witnesses are determined by the trier of fact. State v.

Yarbrough, 95 Ohio St.3d 227, 231, 2002-Ohio-2126, 767 N.E.2d 216. The trier of fact

is in a better position to observe the witnesses’ demeanor and weigh their credibility.

State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the

syllabus. This case was tried to the court; in a bench trial, the court is presumed to

know the law and properly apply it. State v. Sarver, 7th Dist. No. 05-CO-53, 2007-Ohio-

601, ¶ 23.

       {¶18} We have reviewed the record, including the trial transcript of the

witnesses’ testimony and the photos. Viewing this evidence in a light most favorable to

appellee, we conclude that a reasonable person could have found beyond a reasonable

doubt appellant committed the offense of domestic violence. We find, therefore, that

appellee met its burden of production regarding each element of the crime of domestic
Stark County, Case No. 2012CA00203                                                      7


violence and, accordingly, there was sufficient evidence to support appellant's

conviction.   Although appellant’s witnesses testified Mrs. Dobbins did not mention

physical violence, she spoke with several of these witnesses before May 18, which she

testified was the first incident of physical violence. As the trial court pointed out, the

photos corroborate a physical incident, and even appellant’s mother agreed she was

shown at least one of the photos on May 21 (although she insisted it was not indicative

of violence). The trier of fact was free to accept or reject any and all of the evidence

offered by the appellant and assess the witnesses’ credibility. We conclude the trier of

fact, in resolving the conflicts in the evidence, did not create a manifest miscarriage of

justice so as to require a new trial.

                                        CONCLUSION

       {¶19} Appellant’s sole assignment of error is overruled and the judgment of the

Massillon Municipal Court is affirmed.

By: Delaney, J. and

Hoffman, P.J.

Farmer, J., concur.



                                          HON. PATRICIA A. DELANEY




                                          HON. WILLIAM B. HOFFMAN



                                          HON. SHEILA G. FARMER
