[Cite as State v. Potts, 2014-Ohio-2517.]


                                         COURT OF APPEALS
                                        STARK COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT


STATE OF OHIO                                   :   JUDGES:
                                                :
                                                :   Hon. William B. Hoffman, P.J.
       Plaintiff-Appellee                       :   Hon. John W. Wise, J.
                                                :   Hon. Patricia A. Delaney, J.
-vs-                                            :
                                                :   Case No. 2013CA00168
                                                :
TODD A. POTTS                                   :
                                                :
                                                :
       Defendant-Appellant                      :   OPINION


CHARACTER OF PROCEEDING:                            Appeal from the Stark County Court of
                                                    Common Pleas, Case No. 2013-CR-
                                                    0085



JUDGMENT:                                           AFFIRMED




DATE OF JUDGMENT ENTRY:                             June 9, 2014




APPEARANCES:

For Plaintiff-Appellee:                             For Defendant-Appellant:

JOHN D. FERRERO                                     RODNEY A. BACA
STARK COUNTY PROSECUTOR                             610 Market Ave. N.
                                                    Canton, OH 44702
RONALD MARK CALDWELL
110 Central Plaza South, # 510
Canton, OH 44702-1413
Stark County, Case No. 2013CA00168                                                      2

Delaney, J.

       {¶1} Defendant-Appellant Todd A. Potts appeals his conviction and sentence

on one count of Domestic Violence in violation of R.C. 2919.25(A) by the Stark County

Court of Common Pleas. Plaintiff-Appellee is the State of Ohio.

                        FACTS AND PROCEDURAL HISTORY

       {¶2} On January 18, 2013, Defendant-Appellant Todd A. Potts was indicted by

the Stark County Grand Jury on one count of Domestic Violence, a third degree felony

in violation of R.C. 2919.25(A).

       {¶3} A jury trial was held on April 23, 2013, but the jury could not reach a

unanimous verdict. The trial court declared a mistrial.

       {¶4} The case came on for a second jury trial on July 9, 2013. The following

evidence was adduced at trial.

       {¶5} Michelle Potts (“Michelle”) and Todd Potts (“Potts”) were married on May

11, 2007. The relationship between Michelle and Potts was difficult. Potts was on post-

release control and he was being supervised by the Adult Parole Authority. The Parole

Board hearing officer had imposed a no-contact order between Potts and Michelle. In

September 2012, the State of Ohio entered into an agreement with Potts for a

reunification plan with Michelle. Potts was required to complete individual counseling

and the couple was to attend joint marriage counseling.

       {¶6} On Friday, December 21, 2012, Potts and Michelle met with the Adult

Parole Authority and their mental health treatment providers. Michelle and Potts were

hoping for a reunification at Christmas. Richard Baxter, Potts’s parole officer, testified

the meeting went badly. Baxter described Michelle and Potts as agitated and irate when
Stark County, Case No. 2013CA00168                                                            3


it was made clear that Michelle and Potts would not be allowed to reside together. They

reached a compromise that Michelle and Potts were allowed telephone contact and a

two-hour visit on Christmas at Potts’s sister’s house to be supervised by Potts’s sister.

       {¶7} In contravention of the orders from the Adult Parole Authority, Potts and

Michelle remained together after the Friday meeting. Michelle and Potts spent Saturday

together shopping for Christmas presents. On Sunday, Michelle and Potts attended a

Christmas party together held in Tuscarawas County. Michelle and Potts spent the night

together at Michelle’s duplex apartment located in Massillon, Ohio.

       {¶8} The morning of Monday, December 24, 2012, Potts and Michelle read the

Bible and prayed together before breakfast. Potts then went downstairs to prepare

breakfast. After this point, Michelle and Potts testified to a different version of events.

       {¶9} Michelle testified she went into the kitchen to make hot tea. Potts asked

her how she would like her eggs prepared. Michelle usually had her eggs prepared

over-easy, but she asked Potts to scramble her eggs. Michelle stated Potts became

very upset with her and yelled at her, asking why she could not stay consistent. Michelle

then tried to stay out Potts’s way in the kitchen, but Potts asked for her help. Potts was

making waffles and Michelle got the waffles out of the waffle iron. Michelle testified as

she did so, Potts yelled at her to get out of his way. Michelle walked out of the kitchen.

       {¶10} Michelle heard Potts throw the pan back on the stove. She walked back

into the kitchen and removed heated strawberries and syrup from the microwave. She

apologized to Potts, trying to deescalate the tension she felt in Potts. They sat down at

the table and Michelle could tell Potts was not happy. They started talking and Michelle

said she told Potts that he did not need to ruin another holiday. Michelle testified Potts
Stark County, Case No. 2013CA00168                                                         4


became upset and stood up. He lifted the table and the plates slid, but did not fall off the

table. Potts then poured the heated strawberries on Michelle’s head. He next poured the

heated syrup and hot tea over her head. She yelled at him to stop. Michelle pushed

away from the table. Michelle testified Potts started throwing things off the table.

Michelle backed up to the door of the kitchen and Potts pushed her against the door. He

picked up a kitchen chair, hit the kitchen ceiling with the chair, and brought the chair

down in front of her, cracking it. Potts was swearing and screaming. Michelle testified

Potts started repeatedly hitting her in the head with an empty plastic milk jug that was in

the kitchen. She could feel his fist through the empty milk jug. He eventually stopped

hitting her and dropped the milk jug. Michelle testified she was crying and he continued

to yell and scream at her. He then left the kitchen, walked into the living room, and sat

down. He told Michelle she needed to pick up the mess in the kitchen, which Michelle

immediately started cleaning.

       {¶11} As Michelle was cleaning, she put her keys near her purse. Potts gave her

a towel to clean herself. Potts sat in the living room and watched her clean, telling her

she needed to fix this. As Potts had his head down, Michelle grabbed her purse and

keys and left the duplex apartment to go to her car. Potts followed her out of the house

and reached her at the car. Michelle testified Potts shoved her against the console and

took her keys. He held the keys to her throat and threatened to slit her throat and kill

her. Potts dragged her from the car by her hair and pushed her into the apartment.

       {¶12} Potts and Michelle were back in the house and Potts pushed her onto the

couch. Michelle testified he started hitting her in the head with the milk jug again. She

tried to use a pillow to protect her face. She then testified that Potts stopped hitting her.
Stark County, Case No. 2013CA00168                                                       5


That evening, after she had showered and they cleaned the kitchen, they went to get a

movie. While she was taking a shower, Michelle stated that Potts called his sister to tell

her what he did.

       {¶13} Potts testified that he was making eggs when Michelle was attempting to

flip the waffles. The handle of the waffle maker was broken and when Michelle turned it,

the handle fell to the floor. Michelle bumped Potts when she picked up the handle,

causing grease to splatter on Potts. He said he yelled in pain and let Michelle know she

caused him to suffer a burn. She asked why he was yelling at her and he told her that

he was not yelling at her. Potts testified it started to escalate from there. He stated he

walked out of the kitchen. Potts walked back into the kitchen and apologized.

       {¶14} They put the prepared food on the table and sat down at the table. Potts

testified they began to argue after Michelle told him she hoped there was not going to

be any drama at Christmas. During the argument, Potts told Michelle he was going to

get a divorce. Michelle stated she would not let him divorce her and she wiped the table

of the syrup and plates, causing everything to fall to the floor. Potts testified there was

no physical altercation on December 24, 2012.

       {¶15} In the evening of December 24, 2012, Potts’s sister and father visited

Michelle and Potts at the apartment. Potts’s family tried to convince Potts to leave with

them, but he would not.

       {¶16} The next day, Michelle and Potts visited Potts’s family. Michelle testified

she told Potts’s family about the assault and showed them the bruises that Potts

caused. Michelle left the house and went to a safe location.
Stark County, Case No. 2013CA00168                                                       6


       {¶17} Potts called and texted Michelle, but Michelle did not respond. Alice Barr,

one of Potts’s parole officers, contacted Michelle and asked about Christmas. Michelle

told her nothing happened.

       {¶18} Baxter received a call from one of Potts’s family members on December

27, 2012 stating that Baxter that Michelle and Potts were attempting to leave the state

and there was an allegation that an assault occurred. The Adult Parole Authority

determined to arrest Potts due to his extensive violation history. Baxter contacted Potts

and Potts turned himself into the Tuscarawas County Jail.

       {¶19} Baxter contacted Michelle on December 28, 2012 and she stated she did

not want to press charges against Potts. On January 2, 2013, Michelle contacted Baxter

and stated she wanted to press charges against Potts. She gave an 11-page written

statement and Baxter took photographs of the bruises she stated were caused by Potts.

       {¶20} Baxter went to the Tuscarawas County Jail to serve Potts with papers

concerning revocation of his parole. Baxter testified Potts threatened to kill Michelle and

her family. Potts testified he made no threatening statement about Michelle to Baxter.

       {¶21} The jury found Potts guilty of domestic violence. The trial court sentenced

Potts to a prison term of 36 months for his conviction for domestic violence. At the time

of his conviction, Potts was on post-release control for a conviction in Carroll County.

The trial court ordered Potts to serve a 6-month sentence for the time Potts had

remaining on his post-release control to run consecutive with the domestic violence

conviction, for a total prison term of 42 months.

       {¶22} Potts now appeals his conviction and sentence.
Stark County, Case No. 2013CA00168                                                        7


                               ASSIGNMENT OF ERROR

       {¶23} Potts raises one Assignment of Error:

       {¶24} “THE CONVICTIONS OF THE TRIAL COURT ARE AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE AND THE EVIDENCE WAS INSUFFICIENT

AS A MATTER OF LAW TO PROVE THE CONVICTION BEYOND A REASONABLE

DOUBT.”

                                        ANALYSIS

       {¶25} Potts argues in his sole Assignment of Error that his conviction is against

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

       {¶26} 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.”

       {¶27} 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
Stark County, Case No. 2013CA00168                                                         8


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

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.

       {¶28} Potts was convicted of one count of domestic violence in violation of R.C.

2919.25(A). The statute states, “[n]o person shall knowingly cause or attempt to cause

physical harm to a family or household member.”

       {¶29} In challenging the manifest weight and sufficiency of the evidence, Potts

argues Michelle’s testimony of the events was not credible. He testified that she was a

vindictive person and made up the story. He refers to Alice Barr’s testimony when she

stated that Michelle had been dishonest with her previously. He further argues there

was no physical evidence of the alleged assault. Michelle testified she showed Potts’s

sister the bruises allegedly caused by Potts, but his sister testified she did not see any

bruises, scratches, or burns on Michelle. Baxter, however, took photographs of the

bruises on Michelle’s arm and shoulder.

       {¶30} We have reviewed the entire record and we find the evidence in this case

supports the determination of the jury. The jury in this case found the testimony of

Michelle to be more credible than Potts. A review of Potts’s testimony shows that it

conflicted not only with Michelle, but also with Richard Baxter, his parole officer. In

reviewing the legal sufficiency of the evidence to support a verdict by the trier of fact, it
Stark County, Case No. 2013CA00168                                                        9


is the mind of the trier of fact, rather than the reviewing court, that must be convinced.

State v. Thomas, 70 Ohio St.2d 79, 434 N.E.2d 1356 (1982). In applying this standard

of review, the question of credibility of conflicting testimony and the weight to be

accorded certain evidence are matters left primarily to the trier of fact. State v. Fox, 5th

Dist. Licking No. 13-CA-71, 2014-Ohio-1652, ¶ 18 citing State v. DeHass, 10 Ohio St.2d

230, 227 N.E.2d 212 (1967). The trier of fact is in a better position to observe the

witnesses' demeanor and weigh their credibility. Id. at ¶ 36.

       {¶31} Potts’s conviction is supported by sufficient evidence and is not against

the manifest weight of the evidence. Potts’s sole Assignment of Error is overruled.

                                      CONCLUSION

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

By: Delaney, J.,

Hoffman, P.J. and

Wise, J., concur.
