[Cite as State v. Williams, 2017-Ohio-803.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. W. Scott Gwin, P J.
        Plaintiff-Appellee                        Hon. William B. Hoffman, J.
                                                  Hon. John W. Wise, J.
-vs-
                                                  Case No. 2016 CA 00074
ANTHONY L. WILLIAMS

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 2015 CR 02055


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                        March 6, 2017



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

JOHN D. FERRERO                                 GEORGE URBAN
PROSECUTING ATTORNEY                            116 Cleveland Avenue NW
RENEE M. WATSON                                 Suite 808
ASSISTANT PROSECUTOR                            Canton, Ohio 44702
110 Central Plaza South, Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2016 CA 00074                                                   2

Wise, John, J.

       {¶1}    Appellant Anthony Lamar Williams appeals his convictions on one count of

Domestic Violence and one count of Assault entered in the Stark County Common Pleas

Court following a jury trial.

       {¶2}    Appellee is the State of Ohio.

                                   STATEMENT OF THE FACTS

       {¶3}    Appellant Anthony Williams was charged with and convicted of one count

of Domestic Violence, in violation of R.C. §2919.25, a third degree felony, one count of

Assault, in violation of R.C. §2903.13, a first-degree misdemeanor, and one count of

Resisting Arrest, in violation of R.C. §2921.33 a second-degree misdemeanor. The

charges arose from an incident which occurred on December 23, 2015. The relevant facts

as set forth at trial are as follows:

       {¶4}    On December 23, 2015, at approximately 8:00 p.m., “Victim 2” was living at

1000 16th Street NW in Canton, Ohio, when she answered a knock at her door and found

a panicked woman (Victim 1) standing outside whom she did not know. She noticed not

only that the woman was in a panic, but also that she had a scratch on her neck near her

collar bone. The woman asked her to go with her to her apartment because she needed

to get something inside. (T. at 147-149).

       {¶5}    Victim 2 followed Victim 1 a couple doors up the street to an upstairs

apartment at 1010 16th Street NW. Victim 1 walked into the apartment and, because she

seemed worried, Victim 2 followed. There was a black male inside the apartment, later

identified as Defendant-Appellant Anthony Williams. He and Victim 1 started arguing, and
Stark County, Case No. 2016 CA 00074                                                    3


the verbal argument quickly became physical when Appellant began pummeling Victim

1. (T. at 151-152).

        {¶6}   Victim 2 witnessed Appellant punch Victim 1 in the face, then swing a glass

bottle at her. Victim 2 called 911 but could not be heard over screaming from Appellant

and Victim 1. (T. at 152-153).

        {¶7}   Victim 2 then tried to break up the fight, but Appellant picked her up and

slammed her down on top of Victim 1. Victim 2 was eventually able to get Victim 1 away

from Appellant, and the two ran out of the apartment just as police arrived. (T. at 153-

154).

        {¶8}   Canton Police Officers Coates and Eckelberry were first on the scene and

heard screaming from inside the apartment. The officers activated their body cameras

and proceeded to the apartment. Officer Coates announced himself and opened the

apartment door. As he did, two women ran from the residence. (T. at 182-187).

        {¶9}   Officer Coates recalled that when he approached Victim 1, she was

hysterical, screaming, and her face was bleeding. She advised Officer Coates that

Appellant might have a gun. The officers called for backup and then called for Appellant

to come out of the apartment. Appellant initially challenged the officers to come and get

him but eventually came out on his own. (T. at 188-194).

        {¶10} Victim 1 and Victim 2 were standing outside the building when the officers

brought Appellant outside and as he walked past the women, Appellant kicked Victim 1

and then began fighting the officers. Appellant grabbed Officer Coates's pinky finger and

tried to twist and break it. After some struggle, the officers managed to secure Appellant

in the police cruiser. (T. at 194-197).
Stark County, Case No. 2016 CA 00074                                                       4


       {¶11} Three Canton police officers entered the apartment to make sure that no

one else was inside. Footage from their body cameras shows only one furnished room in

the apartment - a bedroom. The bedroom contained both male and female clothing items.

A second bedroom just had a mattress on the floor.

       {¶12} Officer Coates stated that he had had previous interactions with Appellant

and Victim 1 which led him to understand that the two lived together.

       {¶13} Victim 1 told Officer Coates that evening that she would not cooperate with

prosecution if Appellant was charged. This too was captured on the body camera video.

(T. at 197-198, 211-219, 231-232). Sergeant Garren arrived on the scene to photograph

the residence and Victim 1. There was some blood splatter in the bedroom and blood on

the walls. Victim 1 had bite marks on her shoulder and back, a bloody nose, and additional

injuries to her lip and the back of her neck. Victim 2 was sore for a few days after the

incident from being slammed down on top of Victim 1. (T. at 159, 198- 204).

       {¶14} As a result of these events, the Stark County Grand Jury later returned an

indictment charging Appellant with one count of domestic violence, a third degree felony

due to prior domestic violence convictions, one count of assault, and one count of

resisting arrest.

       {¶15} Appellant pled not guilty to the charges and rejected the state's offer of 18

months in exchange for his plea of guilty. Appellant elected to proceed to a jury trial which

began on March 14, 2016.

       {¶16} At trial, the state presented testimony from Victim 2 and Officer Coates, who

gave the above outlined information to the jury. A video containing body camera footage

from several officers was also played for the jury. Victim 1, as promised, failed to appear
Stark County, Case No. 2016 CA 00074                                                    5


at trial on the first day. She did, however, appear the following morning, dramatically

hysterical. Victim 1 claimed her brother had died the previous evening, that she was

"unstable," and that she had been drinking since 9:00 p.m. the evening before. The trial

court allowed Victim 1 to be called as a court's witness and further found her competent

to testify. (T. at 231-232, 253-255, 257).

        {¶17} Victim 1 denied that she and Appellant lived together or had any significant

relationship. According to Victim 1, she has many "everythings" and "husbands" because

she simply tells men what they want to hear. She also testified that she knows the

difference between a simple assault and domestic violence and that domestic violence

requires a "child or a relationship with that person" to support a conviction. (T. at 263-

268).

        {¶18} The jury deliberated for two hours and forty-two minutes and returned

verdicts of guilty as charged.

        {¶19} The trial court immediately proceeded to sentencing wherein it sentenced

Appellant to 36 months incarceration for domestic violence, 180 days for assault, and 90

days for resisting arrest. Appellant was ordered to serve the sentences concurrently.

        {¶20} Appellant now appeals, raising the following errors for review:

                                  ASSIGNMENTS OF ERROR

        {¶21} “I. APPELLANT'S CONVICTION OF DOMESTIC VIOLENCE WAS

AGAINST THE SUFFICIENCY AND MANIFEST WEIGHT OF THE EVIDENCE

BECAUSE THE STATE FAILED TO PROVE THAT [VICTIM 1] WAS APPELLANT'S

"FAMILY OR HOUSEHOLD MEMBER."
Stark County, Case No. 2016 CA 00074                                                     6


      {¶22} “II. APPELLANT'S CONVICTION OF ASSAULT AGAINST [VICTIM 2] WAS

AGAINST THE SUFFICIENCY AND MANIFEST WEIGHT OF THE EVIDENCE.”

                                              I., II.

      {¶23} In his two Assignments of Error, Appellant argues that his convictions for

domestic violence and assault were against the manifest weight and sufficiency of the

evidence. We disagree.

      {¶24} A review of the sufficiency of the evidence and a review of the manifest

weight of the evidence are separate and legally distinct determinations. State v. Gulley

(Mar. 15, 2000), 9th Dist. No. 19600, at 3. “While the test for sufficiency requires a

determination of whether the State has met its burden of production at trial, a manifest

weight challenge questions whether the State has met its burden of persuasion.” State v.

Thompkins (1997), 78 Ohio St.3d 380, 390, 678 N.E.2d 541.

      {¶25} In order to determine whether the evidence before the trial court was

sufficient to sustain a conviction, this Court must review the evidence in a light most

favorable to the prosecution. State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492,

paragraph two of the syllabus, superseded by State constitutional amendment on other

grounds in State v. Smith (1997), 80 Ohio St.3d 89, 684 N.E.2d 668.

      {¶26} Specifically, 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. State v. Jenks, supra. This test raises a

question of law and does not allow the court to weigh the evidence. State v. Martin (1983),

20 Ohio App.3d 172, 175, 485 N.E.2d 717. The relevant inquiry is whether, after viewing
Stark County, Case No. 2016 CA 00074                                                        7


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.” State

v. Thompkins, 78 Ohio St.3d at 386, 678 N.E.2d 541.

       {¶27} “Because sufficiency is required to take a case to the jury, a finding that a

conviction is supported by the weight of the evidence must necessarily include a finding

of sufficiency.” State v. Roberts (Sept. 17, 1997), 9th Dist. No. 96CA006462. Thus, a

determination that a conviction is supported by the weight of the evidence will also be

dispositive of the issue of sufficiency. Cuyahoga Falls v. Scupholm (Dec. 13, 2000), 9th

Dist. Nos. 19734 and 19735, unreported.

       {¶28} In determining whether a conviction is against the manifest weight of the

evidence, an appellate court: “[M]ust review the entire record, weigh the evidence and all

reasonable inferences, consider the credibility of witnesses and determine whether, in

resolving conflicts in the evidence, the trier of fact 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. Otten (1986), 33 Ohio App.3d 339, 340, 515 N.E.2d 1009.

       {¶29} A weight of the evidence challenge indicates that a greater amount of

credible evidence supports one side of the issue than supports the other. State v.

Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541. Further, when reversing a conviction

on the basis that the conviction was against the manifest weight of the evidence, the

appellate court sits as the “thirteenth juror” and disagrees with the fact finder's resolution

of the conflicting testimony. Id. at 388, 678 N.E.2d 541. An appellate court must make

every reasonable presumption in favor of the judgment and Findings of Fact of the trial

court. Karches v. Cincinnati (1988), 38 Ohio St.3d 12, 19, 526 N.E.2d 1350. “The verdict
Stark County, Case No. 2016 CA 00074                                                      8


will not be disturbed unless the appellate court finds that reasonable minds could not

reach the conclusion reached by the trier of fact.” State v. Clemons (1998), 82 Ohio St.3d

438, 444, 696 N.E.2d 1009, citing State v. Jenks, 61 Ohio St.3d at 273, 574 N.E.2d 492.

Therefore, this Court's “discretionary power * * * should be exercised only in the

exceptional case in which the evidence weighs heavily against the conviction.” State v.

Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717; See, also, Otten, 33 Ohio

App.3d at 340, 515 N.E.2d 1009.

       {¶30} In State v. Thompkins (1997), 78 Ohio St.3d 380, 678 N.E.2d 541, the Ohio

Supreme Court held “[t]o reverse a judgment of a trial court on the basis that the judgment

is not sustained by sufficient evidence, only a concurring majority of a panel of a court of

appeals reviewing the judgment is necessary.” Id. at paragraph three of the syllabus.

However, to “reverse a judgment of a trial court on the weight of the evidence, when the

judgment results from a trial by jury, a unanimous concurrence of all three judges on the

court of appeals panel reviewing the case is required.” Id. at paragraph four of the

syllabus; State v. Miller (2002), 96 Ohio St.3d 384, 2002-Ohio-4931 at ¶ 38, 775 N.E.2d

498.

       {¶31} In the case sub judice, Appellant was convicted of domestic violence in

violation of R.C. §2919.25, and assault, in violation of R.C. §2903.13 which state:

       {¶32} R.C. 2919.25(A) Domestic Violence

              (A) No person shall knowingly cause or attempt to cause physical

       harm to a family or household member.

              ***
Stark County, Case No. 2016 CA 00074                                                   9


             (F) As used in this section and sections 2919.251 and 2919.26 of the

      Revised Code:

             (1) “Family or household member” means any of the following:

             (a) Any of the following who is residing or has resided with the

      offender:

             (i) A spouse, a person living as a spouse, or a former spouse of the

      offender;

             (ii) A parent, a foster parent, or a child of the offender, or another

      person related by consanguinity or affinity to the offender;

             (iii) A parent or a child of a spouse, person living as a spouse, or

      former spouse of the offender, or another person related by consanguinity

      or affinity to a spouse, person living as a spouse, or former spouse of the

      offender.

             (b) The natural parent of any child of whom the offender is the other

      natural parent or is the putative other natural parent.

             (2) “Person living as a spouse” means a person who is living or has

      lived with the offender in a common law marital relationship, who otherwise

      is cohabiting with the 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.

      {¶33} A person acts knowingly, regardless of his purpose, when he is aware that

his conduct will probably cause a certain result or will probably be of a certain nature.

R.C. §2901.22(B).
Stark County, Case No. 2016 CA 00074                                                        10


       {¶34} “Physical harm” is “any injury, illness, or other physiological impairment,

regardless of its gravity or duration.” R.C. §2901.01(A)(3).

       {¶35} Appellant argues that the State failed to prove that Victim 1 was a family or

household member.

       {¶36} In State v. Williams, 79 Ohio St.3d 459, 465, 683 N.E.2d 1126., the Ohio

Supreme Court addressed the definition of “cohabitation” as follows:

              [W]e conclude that the essential elements of “cohabitation” are (1)

       sharing of familial or financial responsibilities and (2) consortium. R.C.

       2919.25(E)(2) and related statutes. Possible factors establishing shared

       familial or financial responsibilities might include provisions for shelter, food,

       clothing, utilities, and/or commingled assets. Factors that might establish

       consortium include mutual respect, fidelity, affection, society, cooperation,

       solace, comfort, aid of each other, friendship, and conjugal relations. These

       factors are unique to each case and how much weight, if any, to give to

       each of these factors must be decided on a case-by-case basis by the trier

       of fact.

       {¶37} The Court further defined cohabitation in State v. McGlothan, finding where

the state demonstrated the defendant was the victim's boyfriend and they had lived

together for about a year, the state had no obligation to demonstrate the sharing of familial

or financial responsibilities and consortium to prove cohabitation. 138 Ohio St.3d 146,

149, 2014-Ohio-85, 4 N.E.3d 1021, ¶15.

       {¶38} As set forth above, Victim 1, in her testimony, denied that she and Appellant

lived together. However, at trial, Officer Coates testified that he had prior dealing with
Stark County, Case No. 2016 CA 00074                                                     11


Appellant and Victim 1 and that in those prior interactions, he was given the impression

that the two lived together. He further stated that the only furnished room in the apartment

was one of the bedrooms and that bedroom contained a bedroom set and both male and

female clothing. Additionally, Victim 1 admitted that she had a sexual relationship with

Appellant, that she refers to him as her husband, and that the bedroom set was acquired

by Appellant at Rent-a-Center. The jury was also given the opportunity to view the

apartment via the video from the officer’s body camera.

       {¶39} 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

Victim 1 was a family or household member and that Appellant inflicted physical harm on

Victim 1. 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 Appellant's conviction.

       {¶40} 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 evidence, every reasonable

intendment and every reasonable presumption must be made in favor of the judgment
Stark County, Case No. 2016 CA 00074                                                      12

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 *420 of witnesses. See, e.g., In re Brown,

9th Dist. No. 21004, 2002-Ohio-3405, 2002 WL 1454025, ¶ 9, citing State v. DeHass, 10

Ohio St.2d 230, 227 N.E.2d 212 (1967).

       {¶41} 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,

2008 WL 5245576, ¶ 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 WL 407847, at ¶ 13, citing State v. Gore, 131 Ohio

App.3d 197, 201, 722 N.E.2d 125 (7th Dist.1999).

       {¶42} 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, 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).
Stark County, Case No. 2016 CA 00074                                                      13


         {¶43} 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, 2000 WL

297252 (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, 2003 WL 723225, ¶ 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, 2003 WL 21291042, 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.

         {¶44} 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 Appellant of the charge of domestic violence

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

Appellant'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 credibility

of the testimony of the state's witnesses and Appellant's testimony. This Court will not
Stark County, Case No. 2016 CA 00074                                                        14

disturb the jury's 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 Appellant's guilt.

         {¶46} 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.

                                              ASSAULT

         {¶47} Appellant was also charged with one count of assault as to Victim 2:

         {¶48} R.C. §2903.13 Assault

         {¶49} (A) No person shall knowingly cause or attempt to cause physical harm to

another or to another's unborn.

         {¶50} A person acts knowingly, regardless of his purpose, when he is aware that

his conduct will probably cause a certain result or will probably be of a certain nature.

R.C. §2901.22(B).

         {¶51} “Physical harm” is “any injury, illness, or other physiological impairment,

regardless of its gravity or duration.” R.C. §2901.01(A)(3).

         {¶52} Appellant specifically claims that because the only witness to the assault

charge was Victim 2 herself, that her testimony was not credible, the conviction cannot

stand.

         {¶53} At trial, Victim 2, testified that when she was attempting to break up the fight

between Appellant and Victim 1, Appellant picked her up and threw her down on top of

Victim 1. She also stated that she was sore for days after the altercation. (T. at 153-154,

159).
Stark County, Case No. 2016 CA 00074                                                         15


       {¶54} Ohio courts have held that the testimony of one witness, if believed by the

jury, is sufficient to support a conviction. The issue of witness credibility is a matter within

the province of the jury. State v. Jamison (1990), 49 Ohio St.3d 182, 552 N.E.2d 180.

       {¶55} Victim 2’s testimony alone, if believed, supports the conviction for assault.

There is no requirement for the State to produce corroborating evidence.

       {¶56} Here, the jury chose to believe Victim 2’s testimony and to find that the

evidence presented by the State met that burden of persuasion.

       {¶57} Accordingly, Appellant’s First and Second Assignments of Error are

overruled.

       {¶58} For the reasons stated in the foregoing opinion, the judgment of the Stark

County Court of Common Pleas is affirmed.



By: Wise, John, J.

Gwin, P. J., and

Hoffman, J., concur.




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