[Cite as State v. Vanvalkenburg, 2011-Ohio-3804.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


                                                    :   JUDGES:
STATE OF OHIO                                       :   W. Scott Gwin, P.J.
                                                    :   William B. Hoffman, J.
                         Plaintiff-Appellee         :   Julie A. Edwards, J.
                                                    :
-vs-                                                :   Case No. 10-CA-116
                                                    :
                                                    :
ROCKY VANVALKENBURG, II                             :   OPINION

                    Defendant-Appellant




CHARACTER OF PROCEEDING:                                 Criminal Appeal from Licking County
                                                         Court of Common Pleas Case No.
                                                         10 CR 300

JUDGMENT:                                                Affirmed

DATE OF JUDGMENT ENTRY:                                  July 25, 2011

APPEARANCES:

For Plaintiff-Appellee                                   For Defendant-Appellant

EARL L. FROST                                            HEATHER L. KECK
Assistant Prosecuting Attorney                           Bowen & Keck Law, LLC
Licking County Prosecutor’s Office                       338 South High Street
20 S. Second Street, 4th Floor                           Columbus, Ohio 43215
Newark, Ohio 43055
[Cite as State v. Vanvalkenburg, 2011-Ohio-3804.]


Edwards, J.

        {¶1}    Defendant-appellant, Rocky VanValkenburg, II, appeals his conviction and

sentence from the Licking County Court of Common Pleas on one count of domestic

violence. Plaintiff-appellee is the State of Ohio.

                                STATEMENT OF THE FACTS AND CASE

        {¶2}    On June 11, 2010, the Licking County Grand Jury indicted appellant on

two counts of domestic violence in violation of R.C. 2919.25(A), felonies of the fourth

degree.      The victim with respect to Count One was Savannah VanValkenburg,

appellant’s sister, and the victim with respect to Count Two was Amanda Ellis,

appellant’s cousin. At his arraignment on June 22, 2010, appellant entered a plea of not

guilty to the charges contained in the indictment.

        {¶3}    Pursuant to an Entry filed on August 9, 2010, Count Two was amended to

assault in violation of R.C. 2903.12(A).

        {¶4}    Subsequently, a jury trial commenced on August 23, 2010. The following

testimony was adduced at trial.

        {¶5}    Amanda Ellis is appellant’s cousin. On June 4, 2010, Ellis went to pick up

Savannah. Ellis testified that when she arrived at appellant’s home, appellant and

Savannah were having an argument about Savannah moving out. According to Ellis,

appellant had broken a fan of Savannah’s using a baseball bat.

        {¶6}    Ellis was questioned about a 911 call that she made to police that day.

The following is an excerpt from her trial testimony:

        {¶7}    “Q. On the 9-1-1 call you made reference to getting up into her face or

he’s hitting her. Did you see the defendant striking Savannah?
Licking County App. Case No. 10-CA-116                                                   3


       {¶8}   “A. They both were in each other’s faces.

       {¶9}   “Q. So do you recall him striking Savannah?

       {¶10} “A. I remember them striking each other, yes.” Trial Transcript at 89.

       {¶11} Ellis testified that at some point, a neighbor came over and pulled

appellant off of Savannah. Ellis testified that Savannah was bleeding that day from the

mouth and nose.

       {¶12} On cross-examination, Ellis testified that appellant and Savannah were

hitting each other and that she did not have an opportunity to see who hit who first.

       {¶13} At trial, Savannah VanValkenburg testified that appellant got upset about

her moving out and took her baseball bat and used it to break her fan. She testified that

they then “struggled with the bat and we got away from each other and then we just

attacked each other.” Trial Transcript at 119. Savannah was unable to recall whether

appellant hit her in the face, but testified that her nose was bleeding. Savannah testified

that there was blood on her jeans and that she got hit in the mouth when she and

appellant were fighting. She was unable to recall whether appellant struck her in the

mouth and testified that appellant was drinking that day.

       {¶14} Savannah testified that at some point, a neighbor came over and grabbed

appellant.

       {¶15} On cross-examination, Savannah testified that at the time she gave her

original statement to the police, she was angry. She testified that her trial testimony was

more accurate because it was not affected by anger. She testified that she did not

remember who went after the other first, but that she and appellant both went after each

other. Savannah testified that she hit appellant with a fist or open hand and that she
Licking County App. Case No. 10-CA-116                                                 4


pushed him and shoved him. Savannah also testified that she was prone to nosebleeds

when her adrenaline was up and it was hot outside and that, on the day in question, it

was hot. She also testified that she was as physically aggressive as appellant in the

fight.

         {¶16} The next witness to testify was Douglas Bowlby, appellant’s neighbor.

Bowlby testified that, on June 4, 2010, he was inside with his wife when he heard a

commotion outside. When Bowlby went outside, he saw appellant and Savannah

involved in an altercation and saw appellant hitting a fan with a baseball bat. Bowlby

testified that, at some point, appellant and Savannah got into a physical altercation and

were throwing punches. Bowlby was unable to say how the altercation started. Bowlby

testified that he intervened and moved appellant down to the sidewalk while Savannah

went up on the front porch. According to Bowlby, appellant then broke away and ran up

onto the porch and struck Savannah in the face with a closed fist. Savannah then

tackled appellant over the porch rail.

         {¶17} On cross-examination, Bowlby testified that when appellant ran up onto

the porch, appellant said something about getting a cell phone and calling the police.

He testified that before appellant hit her in the face, Savannah was “flailing around”

while waiting for appellant on the porch. Trial Transcript at 150. Bowlby was unable to

say whether, before appellant hit her, Savannah attempted to hit appellant.

         {¶18} Officer Brandy Huffman of the Newark Police Department testified that

Savannah was upset and crying and had blood on her pants and was holding a bloody

towel up to her nose when the police arrived on the scene. She testified that appellant
Licking County App. Case No. 10-CA-116                                                5


had some injuries to his knuckles, but did not have a black eye, bloody lip or bloody

nose. Appellant appeared to be intoxicated.

      {¶19} At the conclusion of the evidence and the end of deliberations, the jury, on

August 23, 2010, found appellant guilty of one count of domestic violence and not guilty

of assault.   The jury further found that appellant previously had been convicted of

domestic violence. Pursuant to a Judgment Entry filed on October 13, 2010, appellant

was placed on community control for a period of three (3) years.

      {¶20} Appellant now raises the following assignment of error on appeal:

      {¶21} “I. THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE      WHERE      THERE     WAS     CONFLICTING       AND    CONTRADICTORY

TESTIMONY REGARDING WHO CAUSED THE VICTIM’S INJURY.”

                                              I

      {¶22} Appellant, in his sole assignment of error, argues that his conviction for

domestic violence was against the manifest weight of the evidence. We disagree.

      {¶23} In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire

record, ‘weighs the evidence and all reasonable inferences, considers the credibility of

witnesses, and determines whether in resolving conflicts in 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,

1997-Ohio-52, 678 N.E.2d 541, quoting State v. Martin (1983), 20 Ohio App.3d 172,

175, 485 N.E.2d 717.
Licking County App. Case No. 10-CA-116                                                   6


      {¶24} Appellant was convicted of domestic violence in violation of R.C.

2919.25(A). Such section states as follows: (A) No person shall knowingly cause or

attempt to cause physical harm to a family or household member. Appellant specifically

contends that, reviewing the record as a whole, there was no evidence establishing

beyond a reasonable doubt that appellant caused physical harm to Savannah

VanValkenberg. Appellant notes that Savannah, when asked whether appellant struck

her in the mouth, testified at one point that she did not recall. Appellant also notes that

Savannah was unable to recall whether appellant had punched her and testified that

“we just attacked each other.” Trial Transcript at 130.

      {¶25} However, testimony was adduced at trial that appellant was angry with

Savannah because she was moving and had used a baseball bat to break her fan.

Amanda Ellis testified that she recalled appellant striking Savannah and that a neighbor

came over and pulled appellant off of Savannah. In addition, Douglas Bowlby, who is

not related to either appellant or Savannah, testified that, after he separated the two,

appellant ran up onto the porch and struck Savannah in the face. Officer Huffman

testified that Savannah was upset and crying and had blood on her pants and was

holding a bloody towel up to her nose when the police arrived. Based on the foregoing

we find that the jury did not clearly lose its way and create such a manifest miscarriage

of justice that the conviction for domestic violence must be reversed and a new trial

ordered.
Licking County App. Case No. 10-CA-116                                          7


       {¶26} Appellant’s sole assignment of error is, therefore, overruled.

       {¶27} Accordingly, the judgment of the Licking County Court of Common Pleas

is affirmed.




By: Edwards, J.

Gwin, P.J. and

Hoffman, J. concur

                                                   ______________________________



                                                   ______________________________



                                                   ______________________________

                                                                JUDGES

JAE/d0523
[Cite as State v. Vanvalkenburg, 2011-Ohio-3804.]


               IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                       :
                                                    :
                            Plaintiff-Appellee      :
                                                    :
                                                    :
-vs-                                                :       JUDGMENT ENTRY
                                                    :
ROCKY VANVALKENBURG, II                             :
                                                    :
                       Defendant-Appellant          :       CASE NO. 10-CA-116




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Licking County Court of Common Pleas is affirmed. Costs assessed to

appellant.




                                                        _________________________________


                                                        _________________________________


                                                        _________________________________

                                                                     JUDGES
