[Cite as State v. Stark, 2017-Ohio-873.]


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

STATE OF OHIO                                         C.A. No.      14AP0050

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
DAVID L. STARK                                        WAYNE COUNTY MUNICIPAL COURT
                                                      COUNTY OF WAYNE, OHIO
        Appellant                                     CASE No.   2014 CR-B 000193

                                  DECISION AND JOURNAL ENTRY

Dated: March 13, 2017



        CARR, Presiding Judge.

        {¶1}     Defendant-Appellant, David Stark, appeals from his conviction in the Wayne

County Municipal Court. This Court affirms.

                                                 I.

        {¶2}     On an evening in February 2014, the victim in this matter, the mother of Stark’s

young daughter, brought her daughter to Stark’s apartment to celebrate his birthday. The victim

only stayed for a short while, and Stark became upset when she attempted to leave with his

daughter. According to Stark, the two shouted while he held his daughter and tried to persuade

the victim to stay, but he eventually relented and allowed her to leave. According to the victim,

Stark stopped her from leaving, choked her around the neck, and threatened to kill her.

Following the incident, the victim drove directly to the police station and reported that Stark had

attacked her.
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       {¶3}    As a result of the foregoing incident, Stark was charged with one count of

domestic violence. Stark elected to try the matter to a jury, and, following a trial, the jury found

him guilty. The court sentenced him to jail time and two years of community control.

       {¶4}    Stark now appeals from his conviction and raises three assignments of error for

our review.

                                                 II.

                                 ASSIGNMENT OF ERROR I

       MR. STARK’S CONVICTION IS NOT SUPPORTED BY SUFFICIENT
       EVIDENCE TO SHOW THAT HE KNOWINGLY CAUSED OR ATTEMPTED
       TO CAUSE PHYSICAL HARM TO [THE VICTIM.]

       {¶5}    In his first assignment of error, Stark argues that his domestic violence conviction

is based on insufficient evidence.      Specifically, he argues that there was no evidence he

knowingly caused or attempted to cause the victim physical harm. We disagree.

       {¶6}    A review of the sufficiency of the State’s evidence and the manifest weight of the

evidence adduced at trial are separate and legally distinct determinations. State v. Gulley, 9th

Dist. Summit No. 19600, 2000 WL 277908, *1 (Mar. 15, 2000). When reviewing the sufficiency

of the evidence, this Court must review the evidence in a light most favorable to the prosecution

to determine whether the evidence before the trial court was sufficient to sustain a conviction.

State v. Jenks, 61 Ohio St.3d 259, 279 (1991).

       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.
                                                3


       {¶7}    “No person shall knowingly cause or attempt to cause physical harm to a family

or household member.” R.C. 2919.25(A). “‘Physical harm to persons’ means any injury, illness,

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

“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.” Former R.C. 2901.22(B).

Whoever commits the foregoing crime is guilty of domestic violence. R.C. 2919.25(D)(1).

       {¶8}    The victim in this matter shares a child with Stark and testified that, on a certain

evening near Stark’s birthday, she brought their young daughter to his apartment. Although the

two had discussed the possibility that the victim and her daughter might spend the night there,

the victim ultimately decided not to do so. There was a significant amount of snow on the

driveway when she arrived, and the victim was concerned about where to park her car.

According to the victim, Stark became upset when she indicated that she intended to leave. Not

long after, Stark’s mother called to say that the victim needed to move her car so she could pull

into the driveway. The victim then decided to gather her daughter, her things, and leave.

       {¶9}    The victim testified that she took her young daughter in her arms, covered her

with a blanket, and attempted to leave, but Stark blocked her path. Stark stood between her and

the doorway and told the victim that she was not leaving. He then placed both of his hands

around her neck and squeezed as he pushed her backwards onto the couch. The victim testified

that she could not breathe or scream because of the pressure that Stark was exerting and that she

could not defend herself because she was holding onto their daughter. As Stark was choking her,

his pit bull entered the fray and began trying to jump on the two of them. The victim then heard

Stark say that he would kill her and leave the state with their daughter. According to the victim,

Stark released her shortly after that, and she fled the apartment with her daughter. She then
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drove directly to the police station where she reported what Stark had done and allowed a deputy

to take pictures of her neck.

       {¶10} Deputy Joseph Copenhaver met with the victim at the police station, observed her

neck, and took pictures of her injuries approximately an hour after first meeting her. He

described the marks on the her neck as “abrasion marks” that, in his 18 years of experience as a

police officer, were “consistent with * * * some type of grabbing or choking of the neck.” He

confirmed that the marks were still visible when he photographed the victim an hour after

meeting her.

       {¶11} Stark argues that his conviction is based on insufficient evidence because the

evidence was that he simply attempted to stop the victim from leaving his apartment. It was his

testimony that he never choked the victim.       As such, he argues that the evidence does not

support the conclusion that he knowingly caused or attempted to cause harm to the victim. In

reviewing the sufficiency of the evidence, however, we must consider the evidence in a light

most favorable to the prosecution. See Jenks, 61 Ohio St.3d 259 at paragraph two of the

syllabus. The issue is strictly whether the State satisfied its burden of production, not its burden

of persuasion.    State v. Lee, 158 Ohio App.3d 129, 2004-Ohio-3946, ¶ 17 (9th Dist.)

(“Sufficiency tests whether the prosecution has met its burden of production at trial, whereas a

manifest-weight challenge questions whether the prosecution has met its burden of persuasion.”).

       {¶12} Viewing the evidence in a light most favorable to the prosecution, we must

conclude that the State set forth evidence from which a rational trier of fact could have found

that Stark knowingly caused or attempted to cause physical harm to the victim here. See Jenks at

paragraph two of the syllabus. The victim testified that Stark became upset with her before

choking her with both hands and threatening to kill her.          Moreover, Deputy Copenhaver
                                                 5


observed marks on the victim’s neck that he believed were consistent with someone having

grabbed her neck or choked her. The jury could reasonably conclude, based on the foregoing,

that Stark knowingly inflicted physical harm on the victim.            Consequently, Stark’s first

assignment of error is overruled.

                                 ASSIGNMENT OF ERROR II

       MR. STARK’S CONVICTION IS AGAINST THE MANIFEST WEIGHT OF
       THE EVIDENCE DUE TO THE FAILURE OF THE STATE TO PROVE THAT
       DAVID KNOWINGLY CAUSED OR ATTEMPTED TO CAUSE PHYSICAL
       HARM TO [THE VICTIM].

       {¶13} In his second assignment of error, Stark argues that his domestic violence

conviction is against the manifest weight of the evidence. We disagree.

       {¶14} A conviction that is supported by sufficient evidence may still be found to be

against the manifest weight of the evidence. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997).

       In determining whether a criminal conviction is against the manifest weight of the
       evidence, an appellate court must 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). “When a court of appeals reverses a

judgment of a trial court on the basis that the verdict is against the weight of the evidence, the

appellate court sits as a ‘thirteenth juror’ and disagrees with the fact[-]finder’s resolution of the

conflicting testimony.” Thompkins at 387, quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982). An

appellate court should exercise the power to reverse a judgment as against the manifest weight of

the evidence only in exceptional cases. Otten at 340.

       {¶15} Stark’s mother testified that she had raised foster children for years and that her

son routinely helped her with the children when they were difficult. She stated that, when Stark
                                                 6


did become angry, he was inclined to yell. She denied that he ever became physically aggressive

when something angered him.

       {¶16} Stark testified in his own defense. According to Stark, the victim often kept him

from seeing their daughter, so he was excited when she agreed to bring their daughter to his

apartment for his birthday and spend the night. He admitted that he became upset when the

victim changed her mind and decided to leave, but denied that he attacked her. He claimed that

he picked up his daughter and held her while the two fought and his dog ran around “jumping

everywhere.” When he eventually realized that he could not convince the victim to stay, he

handed over their daughter and allowed her to leave. He denied that he ever pushed the victim,

choked her, or threatened to kill her.

       {¶17} Deputy Copenhaver testified that he went to Stark’s apartment to speak with him

after he talked with the victim at the police station. When he initially spoke with Stark, Stark

denied that any sort of altercation had taken place and indicated that the two had only exchanged

words. Deputy Copenhaver then noticed, however, that Stark appeared to have a scratch or dried

blood on his ear. When he asked Stark what had happened to his ear, Stark then claimed that a

physical altercation had occurred and that he had to defend himself from the victim. Because of

the inconsistencies in Stark’s statement and the victim’s injuries, the deputy arrested Stark.

       {¶18} According to Stark, he never told Deputy Copenhaver that he and the victim had

engaged in an altercation. He testified that, when the deputy asked about the cut on his ear, he

said there must have been some “physical contact” between him and the victim. He clarified that

he “figured she scratched [him] or something with her hand or whatever trying to get [their

daughter] from [him].”
                                                7


       {¶19} Stark theorized at trial that the red marks on the victim’s neck were blotchy

patches that appeared when she cried. Deputy Copenhaver admitted that the victim had blotchy

marks on her body that appeared to be from crying, but maintained that the marks on her neck

were consistent with abrasions from having been grabbed or choked. Likewise, while the victim

admitted that she became red and blotchy when she cried, she maintained that she had marks on

her neck from Stark choking her.

       {¶20} Having reviewed the record, we cannot conclude that this is the exceptional case

where the evidence weighs heavily against Stark’s conviction. See Otten, 33 Ohio App.3d at

340. Stark and the victim gave conflicting testimony, and the jury was in the best position to

evaluate their credibility and resolve any factual disputes. See State v. Bardos, 9th Dist. Medina

No. 15CA0082-M, 2016-Ohio-8091, ¶ 16. Stark’s convictions are not against the manifest

weight of the evidence simply because the jury chose to believe the victim’s version of the

events. See State v. Barger, 9th Dist. Medina No. 14CA0074-M, 2016-Ohio-443, ¶ 29 (“This

Court will not overturn a conviction as being against the manifest weight of the evidence simply

because the trier of fact chose to believe the State’s version of events over another version.”).

Because Stark has not shown that the jury lost its way by convicting him, we reject his argument

to the contrary. His second assignment of error is overruled.

                               ASSIGNMENT OF ERROR III

       THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY EXCLUDING
       EVIDENCE WITH REGARD TO THE CHARACTER OF THE VICTIM
       PURSUANT TO EVID. R. 404(A)(2).

       {¶21} In his third assignment of error, Stark argues that the trial court erred when it

excluded evidence that the victim had a tendency to “fly off the handle” and “become very
                                                8


aggressive” in situations similar to the one at issue here. He argues that the foregoing evidence

was relevant and admissible under Evid.R. 404(A)(2) as a pertinent character trait of the victim.

       {¶22} The decision to admit or exclude evidence lies in the sound discretion of the trial

court. State v. Sage, 31 Ohio St.3d 173, 180 (1987). “Absent an issue of law, this Court,

therefore, reviews the trial court’s decision regarding evidentiary matters under an abuse of

discretion standard of review.” State v. Aguirre, 9th Dist. Lorain No. 13CA010418, 2015-Ohio-

922, ¶ 6. An abuse of discretion indicates that the trial court’s attitude was unreasonable,

arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When

applying the abuse of discretion standard, this Court may not substitute its judgment for that of

the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).

       {¶23} While character evidence is generally inadmissible if offered to prove a person’s

propensity, an accused may offer “[e]vidence of a pertinent trait of character of the victim of the

crime * * *.” Evid.R. 404(A)(2). The evidence the accused intends to introduce, however, still

must meet the requirements for relevancy.        See State v. Kordeleski, 9th Dist. Lorain No.

02CA008046, 2003-Ohio-641, ¶ 10, citing Evid.R. 402. “[C]haracter of the victim is seldom

relevant evidence in a criminal prosecution.” State v. Ingram, 9th Dist. Summit No. 18661, 1998

WL 646632, *5 (Sept. 16, 1998). “The violent character of a victim is not relevant unless the

accused shows he acted in self-defense or out of extreme emotional distress from reasonable

provocation.” State v. Stringfield, 82 Ohio App.3d 705, 712 (9th Dist.1992).

       {¶24} It is Stark’s contention that the trial court erred by not allowing him to introduce

evidence, through the testimony of his mother, that the victim tended to become very aggressive

and violent when arguments occurred. The record, however, does not contain any attempt by

Stark to question his mother about the victim’s character. Rather, after the defense rested,
                                               9


defense counsel asked to renew his objection to the court’s ruling that Stark’s mother not be

permitted to testify about the victim’s character. The State then argued that the court had

properly excluded that evidence.     This Court, therefore, surmises that an off the record

discussion occurred regarding the admissibility of the foregoing testimony. The trial court

permitted defense counsel to proffer, at the conclusion of trial, that Stark’s mother would have

opined that the victim “tend[ed] to fly off the handle,” had “drastic mood swings,” and had “a

violent tendency.”

       {¶25} Even assuming that Stark properly preserved this issue for appeal, he has not

shown that the court abused its discretion by excluding the evidence that the victim had

aggressive tendencies. Stark never argued self-defense or claimed that he acted “out of extreme

emotional distress from reasonable provocation.” Id. To the contrary, he denied that he and the

victim had engaged in any altercation. Defense counsel advanced the theory that the red marks

the victim had on her neck were simply blotchy patches from crying. Because Stark claimed that

no altercation took place, evidence about the victim’s allegedly aggressive behavior was not

pertinent to the proceedings. See Evid.R. 404(A)(2). See also Kordeleski at ¶ 10-16 (evidence of

victim’s character inadmissible under Evid.R. 404(A)(2) where irrelevant to the defendant’s

charge). Thus, the court did not err by excluding it. Stark’s third assignment of error is

overruled.

                                              III.

       {¶26} Stark’s assignments of error are overruled. The judgment of the Wayne County

Municipal Court is affirmed.

                                                                            Judgment affirmed.
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       There were reasonable grounds for this appeal.

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

Municipal Court, County of Wayne, 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.




                                                     DONNA J. CARR
                                                     FOR THE COURT



HENSAL, J.
SCHAFER, J.
CONCUR.


APPEARANCES:

BRADLEY R. HARP, Attorney at Law, for Appellant.

DANIEL R. LUTZ, Prosecuting Attorney, and NATHAN R. SHAKER, Assistant Prosecuting
Attorney, for Appellee.
