[Cite as State v. Riter, 2014-Ohio-1465.]


                                         COURT OF APPEALS
                                        STARK COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT


STATE OF OHIO                                   :   JUDGES:
                                                :
                                                :   Hon. W. Scott Gwin, P.J.
       Plaintiff-Appellee                       :   Hon. Sheila G. Farmer, J.
                                                :   Hon. Patricia A. Delaney, J.
-vs-                                            :
                                                :   Case No. 2013CA00117
                                                :
ZACHARAY ALLEN RITER                            :
                                                :
                                                :
       Defendant-Appellant                      :   OPINION


CHARACTER OF PROCEEDING:                            Appeal from the Stark County Court of
                                                    Common Pleas, Case No. 2013CR0305



JUDGMENT:                                           AFFIRMED




DATE OF JUDGMENT ENTRY:                             March 31, 2014




APPEARANCES:

For Plaintiff-Appellee:                             For Defendant-Appellant:

JOHN D. FERRERO, JR.                                EARLE E. WISE, JR.
STARK CO. PROSECUTOR                                122 Central Plaza, North
RENEE M. WATSON                                     Canton, OH 44702
110 Central Plaza S., Ste. 510
Canton, OH 44702-1413
Stark County, Case No. 2013CA00117                                                    2

Delaney, J.

       {¶1} Appellant Zacharay Allen Riter appeals from the judgment entry of

conviction and sentence entered in the Stark County Court of Common Pleas on May

15, 2013. Appellee is the state of Ohio.

                          FACTS AND PROCEDURAL HISTORY

       {¶2} Appellant and Tanya Riter (“Riter”) are married and as of February 17,

2013 were living together in an apartment located at 1447 Rachel Street, Canton, Ohio.

Appellant has a prior domestic violence conviction in Canton Municipal Court case

number 2011-CRB-005126.

       {¶3} On February 17, 2013, Riter and appellant spent the day cleaning a new

apartment. They came home to the Rachel Street address and Riter made dinner. The

couple drank some vodka and appellant started playing video games. When a friend of

appellant’s came over, Riter went to bed.

       {¶4} Rider awoke shortly after midnight due to noise; appellant’s friend was

leaving. They had finished the bottle of vodka and were highly intoxicated, by Riter’s

account.       Riter came out from the bedroom and yelled at appellant, calling him

irresponsible. At trial she testified she was angry because he gave away the dinner she

put aside for herself. The couple argued but it was “not physical.” Both went to bed and

fell asleep.

       {¶5} Riter testified she awoke soon after to appellant saying “get off me.” She

said “what are you talking about, I was asleep,” and appellant responded, “oh yeah, you

want to yell at me” and “smacked” her in the face, hard. The strike busted Riter’s mouth

open and it started to bleed. When she started yelling, appellant got up on all fours on
Stark County, Case No. 2013CA00117                                                   3


the bed and punched her repeatedly. He grabbed her hair and pulled some out of her

head, choked her, stood on the bed and stomped on her, and bit her several times.

Riter testified she could not get away and was bleeding from her ears, mouth, and nose.

         {¶6} Eventually appellant got up and ran out of the apartment, naked. Riter

locked the door, found a cell phone, and called 911. Police responded and took a

statement from Riter and photographed her injuries. They also bagged into evidence

some hair that had been pulled from her scalp.

         {¶7} Riter directed police in the area appellant fled and they observed bare

footprints in the snow.   A K-9 officer tracked appellant to a neighboring apartment

building where he was found crouched in a stairwell, still naked. Police handcuffed him

and escorted him back toward his own apartment; as they approached the apartment,

appellant took off running into the apartment and tried to slam the door.      He was

subdued again and taken back into custody but police described his demeanor as

extremely belligerent; he was angry and screaming threats and profanity at officers and

Riter.

         {¶8} Police observed visible injury to Riter which they photographed. Her t-

shirt was stretched, she had blood on her lip and she had marks and scratches on her;

it was apparent “she had been in a fight.”       Appellant had no apparent injuries but

claimed he was the victim.

         {¶9} Riter went to the hospital on her own and received two stitches to the

injury to her lip.
Stark County, Case No. 2013CA00117                                                        4


       {¶10} On February 29, 2013, Riter obtained a temporary protection order in

Canton Municipal Court. Her developing injuries were photographed again that day by

Canton police.

       {¶11} Riter testified appellant continued to contact her despite the T.P.O.; he

has called her many times, sent messages to her through friends, and sent family

members to her house to give her messages.

       {¶12} Appellant was the only defense witness at trial. He claimed Riter stole a

gallon bottle of vodka from a drugstore which they both consumed to the point of

intoxication. She went to bed when his friend came over. After the friend left, Riter was

mad because they had finished the bottle of vodka.

       {¶13} Appellant then claimed he got into bed with Riter, naked, and approached

her for sex. She said “you’re crazy” and he said he would have sex with the neighbor

girl instead. Riter then started slapping him in the face, hitting him, and biting him

repeatedly. He ran out of the apartment naked, screaming for help, and hid in the

apartment two buildings over waiting for police. When police arrived, they didn’t want to

listen to his story and told him, “This is a felony, bitch. You’re going to jail.” Appellant

further claimed the police continued to struggle with him while he was naked and he

feared for his life.

       {¶14} Appellant denied hitting, punching, stomping, or biting Riter on the night of

the incident; he said he only asked her for sex. He readily admitted to violating the

protection order and contacting her many times, on the telephone and through third

parties, because they have learned she is pregnant.
Stark County, Case No. 2013CA00117                                                    5


      {¶15} Appellant acknowledged his criminal history includes felony convictions for

burglary and breaking and entering. Appellant testified he received a community control

sanction which he violated and was sent to prison for two years on those offenses.

      {¶16} In the instant case appellant was charged by indictment with one count of

felonious assault, a felony of the first degree, pursuant to R.C. 2903.11(A)(1) [serious

physical harm]; one count of domestic violence, a felony of the fourth degree, pursuant

to R.C. 2919.25(A); and one count of violation of temporary protection order, a

misdemeanor of the first degree, pursuant to R.C. 2919.27(A)(1). Appellant entered

pleas of not guilty and waived his right to trial by jury. The case proceeded to bench

trial and appellant was found not guilty of felonious assault but guilty of domestic

violence and violation of a temporary protection order. He was sentenced to a prison

term of 18 months.

      {¶17} Appellant now appeals from the judgment entry of his conviction and

sentence.

      {¶18} Appellant raises two assignments of error:

                             ASSIGNMENTS OF ERROR

      {¶19} “I. THE TRIAL COURT ERRED WHEN IT SENTENCED DEFENDANT

TO THE MAXIMUM TERM OF EIGHTEEN MONTHS FOR A VIOLATION OF OHIO

REVISED CODE SECTION 2919.25(A).”

      {¶20} “II.     THE EVIDENCE PRESENTED AT TRIAL IS INSUFFICIENT TO

SUSTAIN THE CONVICTIONS AND THE VERDICTS ARE AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.”
Stark County, Case No. 2013CA00117                                                      6


                                       ANALYSIS

                                            I.

       {¶21} In his first assignment of error, appellant argues the record does not

support the trial court’s imposition of a maximum sentence because the victim’s injuries

were not found to constitute serious physical harm; he further impliedly argues he was

punished with a maximum sentence for exercising his right to trial. We disagree.

       {¶22} In State v. Kalish, 120 Ohio St.3d 23, 896 N.E.2d 124, 2008–Ohio–4912,

the Ohio Supreme Court established a two-step procedure for reviewing a felony

sentence. The first step is to “examine the sentencing court's compliance with all

applicable rules and statutes in imposing the sentence to determine whether the

sentence is clearly and convincingly contrary to law.” Kalish at ¶ 4. If the first step is

satisfied, the second step requires the trial court's decision be reviewed under an

abuse-of-discretion standard. Id.

       {¶23} We first note that subsequent to the Ohio Supreme Court's Foster

decision, “[t]he decision to impose the maximum sentence is simply part of the trial

court's overall discretion in issuing a felony sentence and is no longer tied to mandatory

fact-finding provisions.” State v. Parsons, 7th Dist. Belmont No. 12 BE 11, 2013–Ohio -

1281, ¶ 14.

       {¶24} The trial court noted appellant’s prior felony record at sentencing,

including the fact that appellant had once been granted a term of community control but

it was revoked. The term of 18 months in the instant case is within the statutory range

for a fourth-degree felony offense pursuant to R.C. 2929.14(A)(4).          We find the

sentence is in accordance with law.
Stark County, Case No. 2013CA00117                                                           7


       {¶25} Further, the sentence does not constitute an abuse of the trial court’s

discretion. On this point, appellant implies he was punished for trying his case, but we

find this argument unsupported by the record. It is axiomatic that a defendant should

never be punished for exercising his right to trial or refusing to enter into a plea

agreement. State v. O'Dell, 45 Ohio St.3d 140, 147, 543 N.E.2d 1220 (1989). The

imposition of a harsher punishment on a defendant for exercising his rights would impair

the constitutional right to a trial by creating a chilling effect upon a defendant's ability to

exercise his constitutional right. State v. Scalf, 126 Ohio App.3d 614, 621, 710 N.E.2d

1206 (8th Dist.1998). Accordingly, a trial court may not augment a sentence because a

defendant chooses to force the government to prove his guilt, “no matter how

overwhelming the evidence of [defendant's] guilt.” Id.

       {¶26} The trial court must avoid the appearance of penalizing a defendant for

going to trial. In State v. Morris, 159 Ohio App.3d 775, 2005–Ohio–962, 825 N.E.2d

637 (8th Dist.2005), the court observed, “[If] the court makes statements that ‘give rise

to the inference that [the] defendant may have been punished more severely because of

his assertion of the right to trial by jury,’ we must vacate the sentence * * * unless the

record also contains an unequivocal statement that the defendant's decision to go to

trial was not considered in imposing the sentence.”Id. at ¶ 13, quoting State v. Hobbs,

8th Dist. Cuyahoga No. 81533, 2003–Ohio–4338, ¶ 71. “‘Absent such an unequivocal

statement, the sentence will be reversed and the matter remanded for resentencing.’”

Morris, 2005-Ohio-962 at ¶ 13, quoting Scalf, supra, 126 Ohio App.3d at 621.

       {¶27} Appellant here points to no evidence in the record that might indicate his

sentence is retaliation for trying his case. His sentence of 18 months is within the
Stark County, Case No. 2013CA00117                                                        8


statutory range and thus in accordance to law. R.C. 2929.14(A)(4). The sentence does

not constitute an abuse of discretion by the trial court.

       {¶28} Appellant’s first assignment of error is overruled.

                                                 II.

       {¶29} In his second assignment of error, appellant argues his convictions are

against the manifest weight and sufficiency of the evidence. We disagree.

       {¶30} 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.”

       {¶31} 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

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
Stark County, Case No. 2013CA00117                                                       9

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.

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

R.C. 2919.25(A), which states, “No person shall knowingly cause or attempt to cause

physical harm to a family or household member.” He was also convicted of one count

of violation of temporary protection order pursuant to R.C. 2919.27(A)(1), which states,

“No person shall recklessly violate the terms of any of the following: [a] protection order

issued or consent agreement approved pursuant to section 2919.26 or 3113.31 of the

Revised Code.”

       {¶33} Appellant’s challenges to the manifest weight and sufficiency of the

evidence are based upon his assertions that Riter’s testimony was unreliable and the

police investigation was flawed. We have reviewed the entire record and disagree with

these characterizations; moreover, it is well established determining the credibility of

witnesses in within the province of the trier of fact. See State v. DeHass, 10 Ohio St.2d

230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. The evidence in this case

supports the judgment of the trial court. We also note appellant admitted to violating the

temporary protection order repeatedly.

       {¶34} Appellant’s convictions are supported by sufficient evidence and are not

against the manifest weight of the evidence. Appellant’s second assignment of error is

overruled.
Stark County, Case No. 2013CA00117                                             10


                                  CONCLUSION

      {¶35} Appellant’s two assignments of error are overruled and the judgment of

the Stark County Court of Common Pleas is affirmed.

By: Delaney, J. and

Gwin, P.J.

Farmer, J., concur.
