[Cite as State v. Dull, 2013-Ohio-1395.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                SENECA COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 13-12-33

        v.

RONALD E. DULL, JR.,                                       OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Seneca County Common Pleas Court
                            Trial Court No. 11-CR-0280

      Judgment Affirmed in Part, Reversed in Part and Cause Remanded

                               Date of Decision: April 8, 2013




APPEARANCES:

        Scott B. Johnson for Appellant

        Derek W. DeVine and Heather N. Jans for Appellee
Case No. 13-12-33



WILLAMOWSKI, J.

       {¶1} Defendant-appellant Ronald E. Dull Jr. (“Dull”) brings this appeal

from the judgment of the Court of Common Pleas of Seneca County finding him

guilty of domestic violence. For the reasons set forth below, the judgment is

affirmed in part and reversed in part.

       {¶2} On November 26, 2011, Dull and his live-in girlfriend Heather Shobe

(“Shobe”) went to a bar and had a few beers each. They then returned home.

When they arrived at the home, Dull told Shobe that he had struck her dog when it

tried to take his food. He also made a derogatory comment about one of her

children. Shobe then grabbed the front of his shirt and he tried to push her away.

The situation deteriorated into a physical scuffle in which Shobe was injured. Part

of the scuffle was witnessed by neighbors who called the police. On January 25,

2012, the Seneca County Grand Jury indicted Dull on one count of domestic

violence with a specification that Dull had previously been convicted of two or

more offenses of domestic violence. The alleged acts were a violation of R.C.

2919.25(A),(D)(4) making the charge a felony of the third degree. Dull was

arraigned on February 6, 2012, and entered a plea of not guilty.

       {¶3} A jury trial was held on June 28, 2012. At the trial, Dull admitted that

he had two prior convictions for domestic violence as claimed in the specification.

However, Dull argued that he was not guilty of the current charge of domestic

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violence because he was acting in self-defense. The jury returned a verdict of

guilty.     On August 7, 2012, a sentencing hearing was held. The trial court

sentenced Dull to serve twenty-four months in prison. Dull brings this appeal

from that judgment and raises the following assignment of error.

          [Dull’s] conviction with respect to his affirmative defense of self-
          defense was not supported by the manifest weight of the
          evidence.

          {¶4} Unlike sufficiency of the evidence, the question of manifest weight of

the evidence does not view the evidence in a light most favorable to the

prosecution.

          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.”

State v. Thompkins (1997), 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (citing Black’s

Law Dictionary (6 Ed.1990) 1594). A new trial should be granted only in the

exceptional case in which the evidence weighs heavily against conviction. Id.

Although the appellate court acts as a thirteenth juror, it still must give due

deference to the findings made by the jury.

          The fact-finder, being the jury, occupies a superior position in
          determining credibility. The fact-finder can hear and see as well

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       as observe the body language, evaluate voice inflections, observe
       hand gestures, perceive the interplay between the witness and
       the examiner, and watch the witness’ reaction to exhibits and the
       like. Determining credibility from a sterile transcript is a
       Herculean endeavor. A reviewing court must, therefore, accord
       due deference to the credibility determinations made by the fact-
       finder.

State v. Thompson (1998), 127 Ohio App.3d 511, 529, 713 N.E.2d 456.

       {¶5} A review of the evidence in this case indicates that there is no doubt

that Shobe was the first person to turn the argument physical when she grabbed

Dull’s shirt. Tr. 151. Shobe admitted that Dull attempted to get her to let go of

him at that point. Tr. 151-152. However, she then testified that after that Dull “got

[her] down on the porch and started kicking [her] and stepped on [her] throat.” Tr.

143. Shobe testified that prior to that happening she had made no threats of

physical harm to Dull. Tr. 144. She further testified that Dull had kicked her a

couple of times before he walked away. Tr. 144. A second altercation occurred a

few minutes after the first. Shobe testified that when she went into the house, she

struck Dull. Tr. 155. After that Dull pushed Shobe down. Tr. 155.

       {¶6} Two neighbors witnessed part of the first altercation. Benjamin Shank

is the thirteen year old boy who called the police. Tr. 162. He testified that he

heard Shobe and Dull arguing and then saw Dull on top of Shobe. Tr. 162. Tina

Shank, who is Benjamin’s mother, also observed part of the altercation. She

testified that she heard a loud thud and saw Shobe and Dull scuffling. Tr. 171. She

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further testified that Shobe was lying on the porch and it looked like Dull was

choking her. Tr. 171. She also observed Dull kick her while Shobe was lying on

the porch in a fetal position and telling Dull to stop. Tr. 171.

       {¶7} In contrast, Dull testified that he never kicked or struck Shobe and that

he did not stand on her throat. Tr. 25. Dull testified that Shobe had reached around

him and was pulling his hair and hitting him in the back of the head. Tr. 252. To

get away from her he performed a “hip toss” maneuver that he had learned in the

marines which resulted in her landing on the porch. Tr. 253. He then claimed that

he had used his foot as a “stop signal” so that she would not hit him anymore. Tr.

253.

       {¶8} Following this testimony, the trial court instructed the jury on the

affirmative defense of self-defense as follows.

       The defendant claims to have acted in self-defense. To establish
       that he was justified in using force not likely to cause death or
       great bodily harm, the defendant must prove by the greater
       weight of the evidence that: a) he was not at fault in creating the
       situation given (sic) rise to the domestic violence; and b) he had
       reasonable grounds to believe and an honest belief, even if
       mistaken, that he was in imminent and/or immediate danger of
       bodily harm.

       Words alone do not justify the use of force. Resort to force is
       not justified by abusive language, verbal threats, or other words
       no matter how provocative.

       In deciding whether the defendant has reasonable grounds to
       believe and an honest belief that he was in imminent and/or

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       immediate danger of bodily harm, you must put yourself in the
       position of the defendant with his characteristics, his knowledge
       or lack of knowledge, and under the circumstances and
       conditions that surrounded him at the time. You must consider
       the conduct of [Shobe] and decide whether her actions and
       words caused the defendant reasonably and honestly to believe
       that he was about to receive bodily harm.

       If the defendant used more force than reasonably necessary, and
       if the force used is greatly disproportionate to the apparent
       danger, then the defense of self-defense is not available.

Tr. 299-300.

       {¶9} Given all of the evidence before them, the jury members could

reasonably conclude that although Shobe had started the physical confrontation,

the response by Dull was excessive. Even if she pulled his hair and hit the back of

his head as he claimed, the jury heard testimony that once Shobe was lying on the

porch, Dull continued to kick her and put pressure on her throat. This could be

seen as excessive force. The jury was properly instructed that if the amount of

force was greatly disproportionate, self-defense is inapplicable. The evidence in

this case does not weigh heavily against conviction and the jury verdict is not

against the manifest weight of the evidence. Therefore, the assignment of error is

overruled.

       {¶10} Although this court has found the assignment of error to not be

prejudicial, this court sua sponte is choosing to raise the issue of restitution. The

trial court ordered Dull to pay restitution in the amount of $1,125.00 to Associated

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Anesth of Toledo, Inc. and in the amount of $875.41 to Mercy St. Charles

Hospital. This order is contrary to law. Restitution orders are permitted by R.C.

2929.18(A)(1).

       (A) Except as otherwise provided in this division and in
       addition to imposing court costs pursuant to [R.C. 2947.23], the
       court imposing a sentence upon an offender for a felony may
       sentence the offender to any financial sanction or combination of
       financial sanctions authorized under this section, or, in the
       circumstances specified in [R.C. 2929.32], may impose upon the
       offender a fine in accordance with that section. Financial
       sanctions that may be imposed pursuant to this section include,
       but are not limited to, the following:

       (1) Restitution by the offender to the victim of the offender’s
       crime or any survivor of the victim, in an amount based on the
       victim’s economic loss. If the court imposes restitution, the
       court shall order that the restitution be made to the victim in
       open court, to the adult probation department that serves the
       county on behalf of the victim, to the clerk of courts, or to
       another agency designated by the court. If the court imposes
       restitution, at sentencing, the court shall determine the amount
       of restitution to be made by the offender. If the court imposes
       restitution, the court may base the amount of restitution it
       orders on an amount recommended by the victim, the offender,
       a presentence investigation report, estimates or receipts
       indicating the cost of repairing or replacing property, and other
       information, provided that the amount the court orders as
       restitution shall not exceed the amount of the economic loss
       suffered by the victim as a direct and proximate result of the
       commission of the offense.

R.C. 2929.18(A)(1). This court has previously addressed the issue of whether a

trial court may order restitution be paid to a third party in the Seneca County case



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State v. Didion, 173 Ohio App.3d 130, 2007-Ohio-4494, 877 N.E.2d 725 (3d.

Dist). In Didion, this court held as follows.

        The version of R.C. 2929.18 in effect until June 1, 2004,
        specifically provided for restitution to the victim or to third
        parties. See State v. Kreischer, 109 Ohio St.3d 391, 2006-Ohio-
        2706, 848 N.E.2d 496. However, in 125 Am.Sub.H.B. No. 52, the
        General Assembly deleted the provision allowing trial courts to
        award restitution to third parties.1 In the General Assembly’s
        final analysis of 125 Sub.H.B. No. 52, it noted that the bill
        “repeals all of the language that pertains to the restitution order
        requiring that reimbursement be made to third parties,
        including governmental agencies or persons other than
        governmental agencies, for amounts paid to or on behalf of the
        victim or any survivor of the victim for economic loss.”
        (Emphasis added). In Kreischer, the Ohio Supreme Court was
        clear that its holding applied only to those versions of R.C.
        2929.18(A)(1) effective prior to June 1, 2004. There are many
        cases from this district affirming trial courts’ restitution orders
        to third parties under the prior version of R.C. 2929.18(A)(1).
        See State v. Christy, 3d Dist. No. 16–06–01, 2006-Ohio-4319,
        2006 WL 2390273; State v. Rose, 3d Dist. No. 9–05–43, 2006-
        Ohio-3071, 2006 WL 1669135; State v. Eggeman, 3d Dist. No.
        15–04–07, 2004-Ohio-6495, 2004 WL 2785951.

        One could argue that the statute, as amended in 125
        Am.Sub.H.B. No. 52, provides trial courts broad discretion in
        ordering financial sanctions and that the courts’ discretion
        includes ordering restitution to third parties. However, in
        reading R.C. 2929.18(A)(1), (2), and (3) together, we find it clear
        that such an interpretation was not the intent of the General
        Assembly. The statute authorizes the courts to order restitution,
        fines, court costs, and/or other types of financial sanctions.
1
  The relevant deleted language stated: “The order may include a requirement that reimbursement be made
to third parties for amounts paid to or on behalf of the victim or any survivor of the victim for economic
loss resulting from the offense. If reimbursement to third parties is required, the reimbursement shall be
made to any governmental agency to repay any amounts paid by the agency to or on behalf of the victim or
any survivor of the victim for economic loss resulting from the offense before any reimbursement is made
to any person other than a governmental agency.” R.C. 2929.18(A)(1) (effective Jan. 1, 2004).

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      Other forms of financial sanctions would not include variations
      of the restitution, fines, or court costs provided for in the statute.
      R.C. 2929.18(A)(1), (2), and (3) clearly apply if the court decides
      to order the financial sanctions allowed in those sections. So if
      the trial court wishes to impose restitution as part of a
      defendant’s sentence, it is constrained by the provisions found in
      R.C. 2929.18(A)(1). Likewise, if the court wishes to impose a
      fine, it is bound by R.C. 2929.18(A)(2), and if it wishes to impose
      court costs, it is bound by R.C. 2929.18(A)(3). A court’s
      discretion is not so broad as to allow it to exceed the provisions
      of R.C. 2929.18(A)(1), (2), or (3) when ordering restitution, fines,
      or court costs.

      The General Assembly removed the third-party language from
      the statute for a reason in 2004, and it has never put the
      language back. The judiciary has the duty to interpret the
      words provided by the General Assembly, not to rewrite the
      statute by deleting or inserting words. Erb v. Erb (2001), 91
      Ohio St.3d 503, 507, 747 N.E.2d 230, citing Cleveland Elec.
      Illum. Co. v. Cleveland (1988), 37 Ohio St.3d 50, 524 N.E.2d 441,
      paragraph three of the syllabus. The General Assembly’s
      amendment of a statute is “presumed to have been made to
      effect some purpose.” Canton Malleable Iron Co. v. Porterfield
      (1972), 30 Ohio St.2d 163, 175, 59 O.O.2d 178, 283 N.E.2d 434,
      citing State ex rel. Carmean v. Bd. of Edn. (1960), 170 Ohio St.
      415, 11 O.O.2d 162, 165 N.E.2d 918; Columbus–Suburban
      Coach Lines v. Pub. Util. Comm. (1969), 20 Ohio St.2d 125, 49
      O.O.2d 445, 254 N.E.2d 8; Fyr–Fyter Co. v. Glander (1948), 150
      Ohio St. 118, 37 O.O. 432, 80 N.E.2d 776; Leader v. Glander
      (1948), 149 Ohio St. 1, 36 O.O. 326, 77 N.E.2d 69. R.C.
      2929.18(A)(1) used to allow restitution to third parties, but it no
      longer does. Therefore, we hold that R.C. 2929.18(A)(1)
      authorizes trial courts to order the payment of restitution to
      crime victims but not to third parties.

Didion, supra at ¶¶27-29.




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       {¶11} In this case, the trial court did not order restitution be paid to the

victim. Instead, the trial court ordered payment to two third parties. Pursuant to

the plain language of R.C. 2929.18(A)(1), restitution may not be ordered payable

to a third party. The trial court’s judgment concerning restitution is thus contrary

to law and must be reversed.

       {¶12} In addition to the issue of restitution, the trial court also ordered that

Dull have no contact with Shobe. This occurred despite the fact that the trial court

sentenced Dull to a prison term. This court has previously held that a trial court

may impose either a prison term or community control sanctions.               State v.

Hartman, 3d Dist. No. 15-10-11, 2012-Ohio-874. “Pursuant to R.C. 2929.19(B),

community control sanctions and prison terms are mutually exclusive and cannot

be imposed at the same time on the same count of conviction.” Id. at ¶7. Trial

courts must decide whether it is more appropriate to impose prison or community

control sanctions and impose whichever option is more appropriate. State v. Vlad,

153 Ohio App.3d 74, 2003-Ohio-2930 (7th Dist.). A no contact order is a form of

community control. State v. Miller, 12th Dist. No. CA2010-12-336, 2011-Ohio-

3909. Thus, a trial court cannot impose both a prison term and a no contact order.

Id. Since the trial court in this case imposed both a prison term and a no contact

order, it erred by imposing both a prison term and a community control sanction.



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       {¶13} Having found error prejudicial to the defendant, the judgment of the

Court of Common Pleas of Seneca County is affirmed in part and reversed in part.

The matter is remanded for further proceedings in accord with this opinion.

                                                      Judgment Affirmed in Part,
                                                           Reversed in Part and
                                                               Cause Remanded

ROGERS and SHAW, J.J., concur.

/jlr




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