[Cite as State v. Howell, 2015-Ohio-4049.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. John W. Wise, J.
                      Plaintiff-Appellee       :       Hon. Craig R. Baldwin, J.
                                               :
-vs-                                           :
                                               :       Case No. 2015CA00004
JAMES TERRY HOWELL                             :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Stark County
                                                   Court of Common Pleas, Case No.
                                                   2014CR1635

JUDGMENT:                                          Affirmed



DATE OF JUDGMENT ENTRY:                            September 29, 2015




APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

JOHN FERRERO                                       JACOB WILL
STARK COUNTY PROSECUTOR                            116 Cleveland Avenue N.W.
BY: RONALD MARK CALDWELL                           Canton, OH 44702
110 Central Plaza South, Ste. 510
Canton, OH 44702
Stark County, Case No. 2015CA00004                                                         2

Gwin, P.J.

          {¶1}   James Terry Howell, Jr., ["Howell"], appeals his conviction and sentence

after a jury trial of one count of domestic violence a felony of the third degree.

                                    Facts and Procedural History

          {¶2}   Around 3:00 a.m. on September 30, 2014, Ryan Rider was awakened in his

home located on Nicholas Place in Canton by loud screaming outside his home. Upon

hearing this screaming, Rider looked outside of his bedroom window to see who was

screaming for help. He noticed a woman on a neighbor's porch doing the screaming.

Rider also saw a man pulling this woman, grabbing at her and the little child she was

holding in her arms. Rider noticed that the woman was scared and the man seemed

angry. Rider called 9-1-1 and waited for the police to arrive.

          {¶3}   The neighbor whose porch the man and woman were standing on was Sherry

Cornelius. The screaming on her porch and pounding on the front door awakened her.

Cornelius estimated that the screaming and pounding lasted some five minutes, and

she heard one of the people cry in a muffle voice, "Help me." Cornelius also made a 9-1-

1 call.

          {¶4}   Elishalin Robinson and Howell lived on Nicholas Place, along with

Robinson's three children, two of which she shared with Howell. Robinson testified that

she did not remember Howell punching her, and that she simply woke up from her

sleep bleeding. She testified that she could not understand why she was bleeding, and

had a panic attack. Howell was trying to calm her down, but she "spazzed out" and ran

out of the house and down the street. Robinson admitted that she might have told the police

and paramedics that Howell had punched her in the face, causing her facial injuries. Finally,
Stark County, Case No. 2015CA00004                                                      3


Robinson admitted that she continued to maintain contact with Howell since his arrest via

letters and phone calls from jail. Robinson admitted that Howell told her in these letters

and phone calls that she should blame her condition that night on her medication. She

also claimed to have no memory of banging on neighbors' doors and yelling for their help,

or of making a 9-1-1 call with her cell phone.

       {¶5}   Canton Police Officer Eric Lee responded to the several 9-1-1 calls to the

Nicholas Place location and found Robinson. The calls alerted him to the fact that a

black female had been running down the street with a black male chasing her, and that

the female had a young child with her and was bleeding about her face. Robinson fit this

description of the frightened and injured woman. Lee asked her what had happened to

her, and Robinson told him that she had been asleep on the sofa when Howell jumped on

top of her and started punching her in the face for no reason. Lee was unable to locate

Howell at this time.

       {¶6}   James Dull, a Canton fire fighter and paramedic, also responded to the 9-

1-1 calls. He found Robinson to be emotionally distraught and with obvious facial

injuries that had caused bleeding about the face. Dull determined that Robinson was not

intoxicated or under the influence, and was oriented as to person, place, and time. Dull

also checked Robinson's motor sensory impulses, which may reveal possible head

injuries, and determined that her impulses were fine. Dull asked Robinson as well what

had happened to her for purposes of treating her. Robinson told him that she had been

asleep on the couch when Howell began punching her in her face for no reason.

Robinson felt a pop in her nose while being punched, and started bleeding. After

stabilizing Robinson, Dull transported her to Aultman Hospital for treatment.
Stark County, Case No. 2015CA00004                                                      4


      {¶7}   Robinson admitted that she had recently been angry with Howell because

of an affair he was involved in with another woman. She admitted to having several

mental issues, including PTSD, ADHD, and being a manic-depressive. In addition to

being on four different medications, she was also consuming alcohol on the night of the

incident. Robinson testified that she had recently begun taking Paxil, and one of the

side effects she was experiencing was unexplained bleeding.

      {¶8}   After being found guilty of this offense, the trial court sentenced Howell to

a prison term of 36 months, and imposed this sentence consecutively with his sentence

in a separate criminal case.

                                      Assignments of Error

      {¶9}   Howell raises two assignments of error,

      {¶10} "I. THE APPELLANT'S CONVICTION FOR ONE COUNT OF DOMESTIC

VIOLENCE IN VIOLATION OF R.C. 2919.25 WAS AGAINST THE MANIFEST WEIGHT

AND SUFFICIENCY OF THE EVIDENCE.

      {¶11} "II. THE APPELLANT'S SENTENCE WAS CONTRARY TO LAW."

                                               I.

      {¶12} In his first assignment of error, Taylor challenges the sufficiency of the

evidence; he further contends his conviction is against the manifest weight of the

evidence produced by the state at trial.

      {¶13} Our review of the constitutional sufficiency of evidence to support a

criminal conviction is governed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979), which requires a court of appeals to determine whether

“after viewing the evidence in the light most favorable to the prosecution, any rational
Stark County, Case No. 2015CA00004                                                            5


trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Id.; see also McDaniel v. Brown, 558 U.S. 120, 130 S.Ct. 665, 673, 175 L.Ed.2d

582(2010) (reaffirming this standard); State v. Fry, 125 Ohio St.3d 163, 926 N.E.2d

1239, 2010–Ohio–1017, ¶146; State v. Clay, 187 Ohio App.3d 633, 933 N.E.2d 296,

2010–Ohio–2720, ¶68.

       {¶14} Weight of the evidence addresses the evidence's effect of inducing belief.

State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997), superseded

by constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio

St.3d 89, 684 N.E.2d 668, 1997-Ohio–355. Weight of the evidence concerns “the

inclination of the greater amount of credible evidence, offered in a trial, to support one

side of the issue rather than the other. It indicates clearly to the jury that the party

having the burden of proof will be entitled to their verdict, if, on weighing the evidence in

their minds, they shall find the greater amount of credible evidence sustains the issue,

which is to be established before them. Weight is not a question of mathematics, but

depends on its effect in inducing belief.” (Emphasis sic.) Id. at 387, 678 N.E.2d 541,

quoting Black's Law Dictionary (6th Ed. 1990) at 1594.

       {¶15} 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. Id. at 387, 678 N.E.2d 541, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102

S.Ct. 2211, 72 L.Ed.2d 652 (1982). However, an appellate court may not merely

substitute its view for that of the jury, but must find that “‘the jury clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed and
Stark County, Case No. 2015CA00004                                                     6

a new trial ordered.’” State v. Thompkins, supra, 78 Ohio St.3d at 387, quoting State v.

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721 (1st Dist. 1983).

Accordingly, reversal on manifest weight grounds is reserved for “‘the exceptional case

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

             “[I]n determining whether the judgment below is manifestly against

      the weight of the evidence, every reasonable intendment and every

      reasonable presumption must be made in favor of the judgment and the

      finding of facts.

                                           ***

             “If the evidence is susceptible of more than one construction, the

      reviewing court is bound to give it that interpretation which is consistent

      with the verdict and judgment, most favorable to sustaining the verdict and

      judgment.”

Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.

3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).

      {¶16} To find Howell guilty of domestic violence the trier of fact would have to

find beyond a reasonable doubt that he knowingly caused or attempted to cause

physical harm to a family or household member. R.C. 2919.25(A). Physical harm to

persons is defined as “any injury, illness, or other physiological impairment, regardless

of its gravity or duration.” “Family or household member” includes “A spouse, a person

living as a spouse, or a former spouse of the offender” R.C. 2919.25(F)(1)(a)(i). A

“person living as a spouse” includes “a person who is living or has lived with the

offender in a common law marital relationship, who otherwise is cohabiting with the
Stark County, Case No. 2015CA00004                                                      7


offender, or who otherwise has cohabited with the offender within five years prior to the

date of the alleged commission of the act in question.” R.C. 2919.25(F)(2). R.C.

2901.22 Culpable mental states, provides:

             A person acts knowingly, regardless of purpose, when the person is

      aware that the person’s conduct will probably cause a certain result or will

      probably be of a certain nature. A person has knowledge of circumstances

      when the person is aware that such circumstances probably exist. When

      knowledge of the existence of a particular fact is an element of an offense,

      such knowledge is established if a person subjectively believes that there

      is a high probability of its existence and fails to make inquiry or acts with a

      conscious purpose to avoid learning the fact.

      {¶17} Howell does not dispute that at all relevant times Robinson was a family or

household member, or a person living as a spouse.

      {¶18} Specifically, Howell contends that the state was unable to meet their

burden of showing that he caused or attempted to cause physical harm to Robinson.

Howell argues Robinson testified that he was not striking her, but was instead trying to

calm her down and help clean her up. During her testimony, Robinson stated that she

believed that she sustained the injuries because of a sleepwalking incident, in

conjunction with various medications she was taking that were causing her to easily

bruise. Further, Howell contends Robinson testified that she never saw him strike her,

and that upon her waking up he was calming her down and trying to help her.
Stark County, Case No. 2015CA00004                                                      8


      {¶19} In the case at bar, the neighbors testified that a scared and frightened

woman awakened them. One neighbor also noticed an angry man pulling at her. Both of

these neighbors were concerned enough to call 9-1-1.

      {¶20} In the case at bar, the jury heard the 9-1-1 call that Robinson made as she

was running down the street. (T. at 164). Robinson admitted that she was banging on

doors and yelling for help. (T. at 165). Robinson further admitted that she had told both

the police and the personnel at the hospital that Howell had punched her in the face. (T.

at 167; 170). Robinson was treated for contusions to the face. (T. at 168). The jury was

shown photographs of the bloody couch inside the home. (T. at 170).

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

conclude that a reasonable person could have found beyond a reasonable doubt that

Howell committed the crime of domestic violence. We hold, therefore, that the state met

its burden of production regarding each element of the crime of domestic violence and,

accordingly, there was sufficient evidence to support Howell’s conviction.

      {¶22} As an appellate court, we are not fact finders; we neither weigh the

evidence nor judge the credibility of witnesses. Our role is to determine whether there is

relevant, competent and credible evidence, upon which the fact finder could base his or

her judgment. Cross Truck v. Jeffries, 5th Dist. Stark No. CA–5758, 1982 WL 2911(Feb.

10, 1982). Accordingly, judgments supported by some competent, credible evidence

going to all the essential elements of the case will not be reversed as being against the

manifest weight of the evidence. C.E. Morris Co. v. Foley Construction, 54 Ohio St.2d

279, 376 N.E.2d 578(1978). The Ohio Supreme Court has emphasized: “‘[I]n

determining whether the judgment below is manifestly against the weight of the
Stark County, Case No. 2015CA00004                                                             9


evidence, every reasonable intendment and every reasonable presumption must be

made in favor of the judgment and the finding of facts. * * *.’” Eastley v. Volkman, 132

Ohio St.3d 328, 334, 972 N.E. 2d 517, 2012-Ohio-2179, quoting Seasons Coal Co., Inc.

v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio

Jurisprudence 3d, Appellate Review, Section 603, at 191–192 (1978). Furthermore, it is

well established that the trial court is in the best position to determine the credibility of

witnesses. See, e.g., In re Brown, 9th Dist. No. 21004, 2002–Ohio–3405, ¶ 9, citing

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

       {¶23} Ultimately, “the reviewing court must determine whether the appellant or

the appellee provided the more believable evidence, but must not completely substitute

its judgment for that of the original trier of fact ‘unless it is patently apparent that the fact

finder lost its way.’” State v. Pallai, 7th Dist. Mahoning No. 07 MA 198, 2008-Ohio-6635,

¶31, quoting State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964

(2nd Dist. 2004), ¶ 81. In other words, “[w]hen there exist two fairly reasonable views of

the evidence or two conflicting versions of events, neither of which is unbelievable, it is

not our province to choose which one we believe.” State v. Dyke, 7th Dist. Mahoning

No. 99 CA 149, 2002-Ohio-1152, at ¶ 13, citing State v. Gore, 131 Ohio App.3d 197,

201, 722 N.E.2d 125 (7th Dist. 1999).

       {¶24} The weight to be given to the evidence and the credibility of the witnesses

are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d

212(1967), paragraph one of the syllabus; State v. Hunter, 131 Ohio St.3d 67, 2011-

Ohio-6524, 960 N.E.2d 955, ¶118. Accord, Glasser v. United States, 315 U.S. 60, 80,
Stark County, Case No. 2015CA00004                                                     10

62 S.Ct. 457, 86 L.Ed. 680 (1942); Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct.

843, 74 L.Ed.2d 646 (1983).

      {¶25} The jury as the trier of fact was free to accept or reject any and all of the

evidence offered by the parties and assess the witness’s credibility. "While the jury may

take note of the inconsistencies and resolve or discount them accordingly * * * such

inconsistencies do not render defendant's conviction against the manifest weight or

sufficiency of the evidence." State v. Craig, 10th Dist. Franklin No. 99AP-739, 1999 WL

29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09-1236,

1996 WL 284714 (May 28, 1996). Indeed, the jury need not believe all of a witness'

testimony, but may accept only portions of it as true. State v. Raver, 10th Dist. Franklin

No. 02AP-604, 2003-Ohio-958, ¶21, citing State v. Antill, 176 Ohio St. 61, 67, 197

N.E.2d 548 (1964); State v. Burke, 10th Dist. Franklin No. 02AP-1238, 2003-Ohio-2889,

citing State v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992).

Although the evidence may have been circumstantial, we note that circumstantial

evidence has the same probative value as direct evidence. State v. Jenks, supra.

      {¶26} We find that this is not an “‘exceptional case in which the evidence weighs

heavily against the conviction.’” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541,

quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. The jury neither lost his way

nor created a miscarriage of justice in convicting Wolfe of the charges.

      {¶27} Based upon the foregoing and the entire record in this matter, we find

Howell's conviction is not against the sufficiency or the manifest weight of the evidence.

To the contrary, the jury appears to have fairly and impartially decided the matters

before them. The jury as a trier of fact can reach different conclusions concerning the
Stark County, Case No. 2015CA00004                                                                         11


credibility of the testimony of the state’s witnesses and Howell. This court will not disturb

the trier of facts finding so long as competent evidence was present to support it. State

v. Walker, 55 Ohio St.2d 208, 378 N.E.2d 1049 (1978). The jury heard the witnesses,

evaluated the evidence, and was convinced of Howell's guilt.

       {¶28} Finally, upon careful consideration of the record in its entirety, we find that

there is substantial evidence presented which if believed, proves all the elements of the

crime of domestic violence beyond a reasonable doubt.

       {¶29} Howell's first assignment of error is overruled.

                                                          II.

       {¶30} In his second assignment of error, Howell argues that the trial court

abused its discretion in imposing the maximum prison.1

       {¶31} The two-step approach set forth in State v. Kalish, 120 Ohio St.3d 23,

2008-Ohio-4912, 896 N.E.2d 124 no longer applies to appellate review of felony

sentences. State v. Tammerine, 6th Dist. Lucas No. L–13–1081, 2014–Ohio–425, ¶10.

We now review felony sentences using the standard of review set forth in R.C. 2953.08.

Id. at ¶11. R.C. 2953.08(G)(2) provides we may either increase, reduce, modify, or

vacate a sentence and remand for resentencing where we clearly and convincingly find

that either the record does not support the sentencing court’s findings under R.C.

2929.13(B) or (D), 2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is

otherwise contrary to law. Id. See, also, State v. Bonnell, 140 Ohio St.3d 209, 2014–

Ohio–3177, 16 N.E.2d 659, ¶28.

       {¶32} Recently, in State v. Bonnell, the Supreme Court of Ohio stated that:



       1   Howell does not specifically challenge the trial court's imposition of consecutive sentences.
Stark County, Case No. 2015CA00004                                                      12


             In order to impose consecutive terms of imprisonment, a trial court

      is required to make the findings mandated by R.C. 2929.14(C)(4) at the

      sentencing hearing and incorporate its findings into its sentencing entry,

      but it has no obligation to state reasons to support its findings. (Emphasis

      added.)

      {¶33} Furthermore, the sentencing court is not required to recite “a word-for-

word recitation of the language of the statute.” Bonnell, ¶ 29. “[A]s long as the reviewing

court can discern that the trial court engaged in the correct analysis and can determine

that the record contains evidence to support the findings, consecutive sentences should

be upheld.” Id. A failure to make the findings required by R.C. 2929.14(C)(4) renders a

consecutive sentence contrary to law. Bonnell, ¶ 34. The findings required by R.C.

2929.14(C)(4) must be made at the sentencing hearing and included in the sentencing

entry. Id. at the syllabus. However, a trial court’s inadvertent failure to incorporate the

statutory findings in the sentencing entry after properly making those findings at the

sentencing hearing does not render the sentence contrary to law; rather, such a clerical

mistake may be corrected by the court through a nunc pro tunc entry to reflect what

actually occurred in open court. Bonnell, ¶ 30.

      {¶34} We find the Supreme Court's analysis in Bonnell to be instructive when

analyzing whether a maximum sentence imposed by a trial court is contrary to law.

      {¶35} R.C. 2929.12 lists general factors that must be considered by the trial

court in determining the sentence to be imposed for a felony, and gives detailed criteria

which do not control the court's discretion but which must be considered for or against

severity or leniency in a particular case. The trial court retains discretion to determine
Stark County, Case No. 2015CA00004                                                        13


the most effective way to comply with the purpose and principles of sentencing as set

forth in R.C. 2929.11. R.C. 2929.12.

       {¶36} Under R.C. 2929.11(A), the “overriding purposes” of felony sentencing are

to protect the public from future crime by the offender and others and to punish the

offender using the minimum sanctions that the court determines accomplish those

purposes without imposing an unnecessary burden on state or local government

resources. To achieve these purposes, the sentencing court shall consider the need for

incapacitating the offender, deterring the offender and others from future crime,

rehabilitating the offender, and making restitution to the victim of the offense, the public,

or both. R.C. 2929.11(A).

       {¶37} Among the various factors that the trial court must consider and balance

under R.C. 2929.12 are: (1) serious physical, psychological, or economic harm to the

victim as a result of the offense; (2) whether the offender has a history of criminal

convictions; (3) whether the offender has not responded favorably to sanctions

previously imposed by criminal convictions; and (4) whether the offender shows genuine

remorse for the offense. R.C. 2929.12.

       {¶38} R.C. 2929.11 and 2929.12 require consideration of the purposes of felony

sentencing, as well as the factors of seriousness and recidivism. See State v. Mathis,

109 Ohio St.3d 54, 846 N.E.2d 1, 2006–Ohio–855, ¶ 38.

       {¶39} In the case at bar, the trial court noted that Howell was on community

control sanctions at the time he committed the offense in this case. (3T. at 319-320).

R.C. 2929.12(D)(1). The jury found that Howell had two prior domestic violence

convictions. (3T. at 314). R.C. 2929.12(D)(2). The trial court considered the victim
Stark County, Case No. 2015CA00004                                                      14


impact statement. (3T. at 318). The trial court also considered the violence used in

committing the offense.

       {¶40} Upon review, we find that the trial court's sentencing on the charge

complies with applicable rules and sentencing statutes. The sentence was within the

statutory sentencing range. Furthermore, the record reflects that the trial court

considered the purposes and principles of sentencing and the seriousness and

recidivism factors as required in Sections 2929.11 and 2929.12 of the Ohio Revised

Code and advised Howell regarding post release control. Therefore, the sentence is not

clearly and convincingly contrary to law.

       {¶41} Both on the record during the sentencing hearing and in the sentencing

entry filed December 12, 2014 the trial court noted specifically that it had considered the

principles and purposes of sentencing under R.C. 2929.11 and balanced the

seriousness and recidivism factors under R.C. 2929.12.

       {¶42} In the case at bar, the trial court stated "consecutive sentences are

necessary to protect the public from future crime, that consecutive sentences are

necessary to punish the defendant, and that they are not disproportionate to the

seriousness of the conduct and the danger that the defendant possesses [sic.]" (3T at

319). The record does support a conclusion that the trial court made all of the findings

required by R.C. 2929.14(C)(4) at the time it imposed consecutive sentences.

       {¶43} For the foregoing reasons, we find no error in the sentence imposed by

the trial court. Accordingly, Howell’s second assignment of error is overruled.
Stark County, Case No. 2015CA00004                                                15


      {¶44} The judgment of the Stark County Court of Common Pleas is affirmed.

By Gwin, P.J.,

Wise, J., and

Baldwin, J., concur
