[Cite as State v. Barr, 2010-Ohio-1258.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 14-09-40

        v.

NICOLE BARR,                                              OPINION

        DEFENDANT-APPELLANT.




                        Appeal from Marysville Municipal Court
                            Trial Court No. CRB 0900829

                                      Judgment Affirmed

                             Date of Decision: March 29, 2010




APPEARANCES:

        Alison Boggs for Appellant

        Victoria Stone Moledor for Appellee
Case No. 14-09-40


SHAW, J.

       {¶1} Defendant-Appellant Nicole R. Barr (“Barr”) appeals the September

30, 2009 Judgment Entry of the Marysville Municipal Court finding her guilty of

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

       {¶2} This appeal arises out of the following set of circumstances. On July

19, 2009, at 1:35 a.m., two Union County Sheriff’s Deputies, Deputy Phipps and

Deputy Underwood, responded to a 9-1-1 call reporting a domestic altercation.

Upon arriving to the scene, the Deputies completed a short investigation which

revealed that the participants in the dispute were Barr and her longtime boyfriend,

Ronald Little (“Little”). The argument between Barr and Little was sparked by the

presence of a pet rabbit cage in the kitchen. Little wanted the animal to remain

outside, while Barr insisted that the animal be kept in the garage.

       {¶3} The disagreement escalated into a physical altercation which ended

with Little receiving scratches across his chest as well as on the right side and the

back of his neck. Deputy Phipps testified that Barr admitted, at the scene, to

grabbing Little by the neck. However, she remained silent when asked about the

cause of the abrasions on Little’s chest. Barr was subsequently arrested and

charged with domestic violence in violation of R.C. 2919.25(A) which states:

“[n]o person shall knowingly cause or attempt to cause physical harm to a family

or household member.”



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       {¶4} Barr retained counsel and the cause was set for a bench trial on

September 21, 2009. On August 24, 2009, Barr’s attorney, Mr. Gunner, filed a

demand for a jury trial with the court. However, a week prior to the trial, Mr.

Gunner signed and filed a waiver of a jury trial on behalf of Barr. The same week,

Mr. Gunner also filed a motion to withdraw as Barr’s counsel citing that Barr “did

not honor her contract of employment” as the reason for requesting permission to

withdrawal.

       {¶5} On September 21, 2009, Barr appeared in court pro se. The trial

court discussed the jury trial waiver filed by Mr. Gunner. The court then asked

Barr if she still wanted to waive her right to a jury trial. Barr responded by stating

“yes.” The court then read the relevant language from the waiver of trial by jury

form in open court and told Barr that she needed to sign the form in order for it to

take effect. Barr subsequently signed the form. The court also approved Mr.

Gunner’s motion to withdrawal and then appointed Barr new counsel to further

represent her in the matter. A bench trial was reset for September 30, 2009.

       {¶6} Barr appeared in court for the trial represented by her new counsel.

The prosecution offered the testimonies of Deputy Phipps and Deputy Underwood

in support of its case. Barr testified as the sole witness on her behalf. At the close

of the evidence, the trial court found Barr guilty stating that the evidence




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Case No. 14-09-40


supported beyond a reasonable doubt that Barr knowingly attempted to cause

physical harm to a family or household member.

       {¶7} Barr now appeals to this Court, asserting four assignments of error.

                 ASSIGNMENT OF ERROR NO. 1
       THERE WAS INSUFFICIENT EVIDENCE FOR THE TRIAL
       COURT TO FIND [APPELLANT] GUILTY OF DOMESTIC
       VIOLENCE

                 ASSIGNMENT OF ERROR NO. II
       THE TRIAL COURT’S DECISION WAS AGAINST THE
       MANIFEST WEIGHT OF THE EVIDENCE

                ASSIGNMENT OF ERROR NO. III
       THE TRIAL COURT ERRED WHEN IT OVERRULED
       APPELLANT’S   CRIMINAL    RULE   29  MOTION
       REGARDING THE LACK OF EVIDENCE

                 ASSIGNMENT OF ERROR NO. IV
       APPELLANT WAS DEPRIVED HER CONSTITUTIONAL
       RIGHT TO A TRIAL BY JURY AFTER PROPERLY FILING
       A JURY DEMAND

       {¶8} For ease of discussion, we elect to discuss Barr’s assignments of

error out of order.

                          The Fourth Assignment of Error

       {¶9} In her fourth assignment of error, Barr asserts that she was denied

her constitutional right to a trial by jury. Specifically, Barr argues that her waiver

of a jury trial did not comply with the statutory requirements set forth in R.C.

2945.05 and that she did not knowingly and voluntarily make the waiver.




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           {¶10} Initially, we acknowledge that Barr, via her counsel, Mr. Gunner,

properly demanded a jury trial pursuant to Crim. R. 23(A).1 However, the record

indicates that Mr. Gunner subsequently filed a waiver of jury trial which Barr later

affirmed in open court at a pre-trial hearing. R.C. 2945.05 governs a defendant’s

waiver of a jury trial and states, in its entirety:

           In all criminal cases pending in courts of record in this state, the
           defendant may waive a trial by jury and be tried by the court
           without a jury. Such waiver by a defendant, shall be in writing,
           signed by the defendant, and filed in said cause and made a part
           of the record thereof. It shall be entitled in the court and cause,
           and in substance as follows: “I __________, defendant in the
           above cause, hereby voluntarily waive and relinquish my right to
           a trial by jury, and elect to be tried by a Judge of the Court in
           which the said cause may be pending. I fully understand that
           under the laws of this state, I have a constitutional right to a trial
           by jury.”

           Such waiver of trial by jury must be made in open court after
           the defendant has been arraigned and has had opportunity to
           consult with counsel. Such waiver may be withdrawn by the
           defendant at any time before the commencement of the trial.

The Supreme Court of Ohio has construed R.C. 2945.05 to require five conditions

to be met in order for a waiver to be validly imposed. The waiver must be (1) in

writing, (2) signed by the defendant, (3) filed, (4) made part of the record, and (5)



1
    Crim R. 23(A) states, in relevant part:
          In petty offense cases, where there is a right of jury trial, the defendant shall be
          tried by the court unless he demands a jury trial. Such demand must be in writing
          and filed with the clerk of court not less than ten days prior to the date set for trial,
          or on or before the third day following receipt of notice of the date set for trial,
          whichever is later. Failure to demand a jury trial as provided in this subdivision is a
          complete waiver of the right thereto.


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Case No. 14-09-40


made in open court. See State v. Lomax, 114 Ohio St.3d 350, 353, 2007-Ohio-

4277, 872 N.E. 2d 279.

       {¶11} On September 21, 2009, the following dialogue transpired between

the trial court and Barr at a hearing in open court:

       PROSECUTION: * * *Your Honor, I’m not certain what the
       status is of the—there was a jury demand, your Honor. I’m not
       sure what the status of that—

       THE COURT: The jury demand was withdrawn, I believe. Let
       me look here.

       PROSECUTION: Your Honor, is there a jury waiver in the
       court’s file?

       THE COURT: That’s what I’m looking for. Yes. There is a
       waiver of trial by jury filed September the 16th. It was signed
       by Mr. Gunner. Is that what you want to do this morning—Ms.
       Barr? Do you want to give up your right to a trial by jury?

       BARR: Yes.

       THE COURT: [Bailiff], would you give me one of those forms.
       I’m going to have you sign a waiver of trial by jury this morning,
       Ms. Barr. And what this says is, I the undersigned defendant
       charged with one or more misdemeanor criminal and/or traffic
       offense, and having been—been advised of my right to have a
       trial by jury of eight person in this matter, do hereby knowingly,
       voluntarily—and voluntarily waive my right to such jury trial
       and consent to submit my case to the court without a jury. No
       promises or threats have induced me to waive this right. I wish
       this case to be heard at 8:30 a.m. It says on the date previously
       set for trial. But I’ll need to have you sign off on that where I’ve
       placed the X, Ms. Barr. Your attorney has already entered a
       waiver of trial by jury in this case. And I’m going to allow Mr.
       Gunner to withdraw as you attorney.



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       {¶12} While Barr concedes that she signed a written waiver in open court,

she contends that the waiver was invalid because it was not filed and made part of

the record. In State v. Pless, the Supreme Court of Ohio held that a trial court

must strictly comply with the requirements set forth in R.C. 2945.05. State v.

Pless, 74 Ohio St.3d 333, 337, 1996-Ohio-102, 658 N.E.2d 766.               The Court

further held that the statutory requirement that a jury waiver form be “filed in said

cause and made part of the record thereof” means that the form must be time-

stamped and included in the record. State v. Thomas, 97 Ohio St.3d 309, 314,

2002-Ohio-6624, 779 N.E.2d 1017.

       {¶13} However, as noted by the Thomas Court, a trial court has been held

to have retained jurisdiction to hold a bench trial where a jury waiver was

physically located in the case file but had not been file-stamped. Thomas, 97 Ohio

St.3d at 314 citing State v. Otte, 94 Ohio St.3d 167, 169, 2002-Ohio-343, 761

N.E.2d 34.

       {¶14} In State v. Otte, the Court held that no Pless issue arose where there

was evidence in the record that the signed waiver was included in the court’s case

file even though the waiver appeared to lack a contemporaneous file stamp. Otte,

94 Ohio St.3d at 169 citing State ex rel. Larkins v. Baker, 73 Ohio St.3d 658, 661,

1995-Ohio-144, 653 N.E.2d 701 (where the signed waiver was placed in the file

but lacked a file-stamp, the court held that the trial court’s failure to file-stamp the



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Case No. 14-09-40


waiver was not a jurisdictional defect). In Otte, the defendant signed the written

waiver in open court. The waiver was then physically placed in the trial court’s

case file but did not receive a contemporaneous file-stamp. The Otte Court held

that the lack of a file-stamp on the waiver did not divest the trial court jurisdiction

to hold a bench trial because there was other evidence that the waiver was

included in the trial court’s case file. Specifically, the Otte Court was persuaded

by the certification of the clerk of courts that the original waiver was physically

included in the file.

       {¶15} The facts of the instant case are identical to those in Otte and

Larkins, supra. The original waiver of jury trial signed by Barr was physically

placed in the trial court’s case file but does not bear a contemporaneous file-stamp.

Moreover, as in Otte, there is evidence before us that Barr’s signed waiver was

included in the trial court’s case file. The Clerk for the Marysville Municipal

Court prepared and submitted a certified “List of Documents Comprising Record”

which identifies and enumerates Barr’s signed waiver as document “34.

Defendant’s waiver of jury trial signed by defendant.” The List of Documents

bears the appropriate case caption and the corresponding case number which

appears on the trial court’s case file, 09 CRB 00829. In addition, the document

also evinces the following certification:




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Case No. 14-09-40


       I hereby certify that the above List of Documents Comprising
       the Record is, to the best of my knowledge and belief, an
       accurate summary of the documents in the case file.

                                      Charles E. Crowley
                                      Clerk, Marysville Municipal Court
                                      /s/

       {¶16} Based on the foregoing authority of Otte and Larkins, we cannot say

that the lack of a contemporaneous file-stamp on Barr’s signed waiver divested the

trial court jurisdiction to conduct a bench trial when the record indicates that

waiver was physically included in the trial court’s case file. Thus, the record

provides sufficient evidence that Barr signed a written waiver in open court which

was filed and made part of the record thereof. Therefore, based on the record

before us, the trial court complied with the statutory requisites set forth in R.C.

2945.05 and as such it was appropriate for the court to proceed with a bench trial

to adjudicate Barr’s case.

       {¶17} Alternatively, Barr also asserts that the waiver was ineffective

because she did not knowingly or voluntarily sign the waiver. As the basis for this

contention, Barr argues that she was unrepresented when she made the waiver and

thus, did not have an adequate opportunity to confer with counsel immediately

prior to making the waiver. The Supreme Court of Ohio has held that strict

compliance with R.C. 2945.05 “is accomplished by establishing that a pro se

defendant has an opportunity to consult with counsel at any time prior to waiving



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Case No. 14-09-40


her right to a jury trial.” State v. Reese, 106 Ohio St.3d 65, 2005-Ohio-3806, 831

N.E.2d 983. Further, the Reese Court noted that “the reference to timing in the

statute required only that the waiver is made after arraignment and after the

opportunity to consult with counsel.” Reese, 106 Ohio St.3d at 67 (emphasis in

original).

         {¶18} Our review of the record reveals that Barr was represented by

counsel, Mr. Gunner, for almost a month prior to her signing the jury waiver.

Moreover, Barr’s case was set for a bench trial for three weeks until she retained

Mr. Gunner to represent her. On August 24, 2009, Mr. Gunner signed and filed a

jury demand on Barr’s behalf. Three weeks later, Mr. Gunner filed a notice to

withdraw the jury demand which the trial court subsequently asked Barr to affirm

in open court. Moreover, the trial court appointed Barr new counsel at the hearing

where she made her waiver of a jury trial. Barr’s new counsel chose not to make

another jury demand despite the option of withdrawing the waiver and/or

renewing the demand at any time. Thus, the record demonstrates that Barr made

her waiver after ample opportunity to consult with counsel. As such, we find that

the record supports that Barr knowingly and voluntarily made her waiver of a jury

trial.




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Case No. 14-09-40


                The First, Second and Third Assignments of Error

       {¶19} Initially, we note that the analysis required for Barr’s remaining

assignments is interrelated. As such, we elect to discuss the first, second and third

assignments of error together.

       {¶20} In her remaining assignments of error Barr argues that the trial court

erred in overruling her Crim. R. 29(A) motion for acquittal. Specifically, Barr

asserts that there was insufficient evidence presented at trial to find her guilty of

domestic violence and that the trial court’s decision was against the manifest

weight of the evidence. Therefore, we must examine whether there was sufficient

evidence presented at trial for the court to have found Barr guilty of domestic

violence and based on the evidence presented we must determine whether the trial

court’s decision was against the manifest weight of the evidence.

       {¶21} The Supreme Court of Ohio has set forth a test to determine whether

the evidence submitted in a trial was sufficient for the trier of fact to determine a

crime had been proven beyond a reasonable doubt. See State v. Jenks (1991), 61

Ohio St.3d 259, 574 N.E.2d 492. In Jenks, the Court outlined the sufficiency of the

evidence test as follows:

       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


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Case No. 14-09-40


       the prosecution, any rational trier of fact could have found the
       essential elements of the crime proven beyond a reasonable
       doubt.

Id. at paragraph two of the syllabus.

       {¶22} In contrast, when reviewing whether the trial court’s judgment was

against the manifest weight of the evidence, the appellate court sits as a “thirteenth

juror” and examines the conflicting testimony. State v. Thompkins (1997), 78 Ohio

St.3d 380, 387, 678 N.E.2d 541. In doing so, this Court must review the entire

record, weigh the evidence and all reasonable inferences, consider the credibility

of witnesses, and determine whether “the [factfinder] 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. Adkins (Sept. 24, 1999), Hancock App. No. 5-

97-31, 1999 WL 797144, unreported, citing State v. Martin (1983), 20 Ohio

App.3d 172, 175, 485 N.E.2d 717; Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d

541.

       {¶23} In making this determination, the Supreme Court of Ohio has

outlined eight factors for consideration, which include “whether the evidence was

uncontradicted, whether a witness was impeached, what was not proved, that the

reviewing court is not required to accept the incredible as true, the certainty of the

evidence, the reliability of the evidence, whether a witness’ testimony is self-

serving, and whether the evidence is vague, uncertain, conflicting, or



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Case No. 14-09-40


fragmentary.” State v. Apanovitch (1987), 33 Ohio St.3d 19, 23-24, 514 N.E.2d

394, citing State v. Mattison (1985), 23 Ohio App.3d 10, 490 N.E.2d 926,

syllabus. Ultimately, however, “[t]he discretionary power to grant a new trial

should be exercised only in the exceptional case in which the evidence weighs

heavily against the conviction.” Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717.

      {¶24} In the present case, the trial court convicted Barr of domestic

violence under R.C. 2919.25(A), which provides in pertinent part:

      (A) No person shall knowingly cause or attempt to cause
      physical harm to a family or household member.
      ...
      (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;
      ...
      (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.

      {¶25} The burden is on the prosecution to establish beyond a reasonable

doubt both elements of the offense: that Barr caused or attempted to cause

physical harm to Little, and that Little was a family or household member.




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Case No. 14-09-40


       {¶26} It is undisputed by the parties that Barr and Little cohabitated within

the purview of the statute. Barr and Little maintained a long-term relationship of

several years. The couple resided together in the same household with their three

children. Therefore, Little clearly satisfies the requisite definition of being a

family or household member under the statute.

       {¶27} However, Barr argues that the prosecution presented insufficient

evidence that she knowingly caused or attempted to cause physical harm to Little.

Physical harm includes “any injury, illness, or other physiological impairment,

regardless of its gravity or duration.” R.C. 2901.01(A)(3). Further, under R.C.

2901.22(B), someone 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.” The accused does not have to commence a series of actions with

the intent to act knowingly: if he was aware that the result from his actions was

probable, then the person has acted knowingly. Id.; State v. Wenger (1979), 58

Ohio St.2d 336, 339, 390 N.E.2d 801. When a person acts knowingly, “[m]otive,

purpose, or mistake of fact is [of] no significance.” Wenger at 339, 390 N.E.2d

801.

       {¶28} Here, there is sufficient evidence that Barr knowingly caused

physical harm to Little. At trial, the prosecution offered the testimony of the two

Deputies who responded to the initial 9-1-1 call. Deputy Phipps testified that upon



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Case No. 14-09-40


arriving to the home that Barr and Little shared with their children, he noticed

abrasions across Little’s chest and neck. As part of his investigation, the Deputy

took Barr aside to inquire about what events had occurred prior to the arrival of

law enforcement. Deputy Phipps testified that Barr admitted to engaging in a

struggle with Mr. Little over the rabbit cage, and that Barr further admitted that

she grabbed Little by the neck causing the scratch marks. In addition, photographs

taken from the scene by Deputy Phipps were admitted into evidence which clearly

depicted scratches across Little’s neck and chest.

       {¶29} Barr testified on her own behalf. She stated that her youngest son

brought the rabbit cage into the kitchen which sparked an argument with Little.

Barr further testified that when she saw Little begin to pick up the rabbit cage to

place it outside, she immediately grabbed the other end of the cage. A struggle

ensued between Barr and Little with each one holding onto the rabbit cage. Barr

testified that the rabbit cage caused the abrasions across Little’s mid-section, but

she denied causing the marks on Little’s neck.

       {¶30} Clearly, there was evidence to support that Barr knowingly engaged

in the physical struggle with Little over the rabbit cage—the conduct which

resulted in Little receiving his injuries. Thus, a reasonable trier of fact could find

that Barr was aware that by engaging in a heated tug-of-war with a rabbit cage, she

was about to make some physical contact with Little, and that doing so would



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Case No. 14-09-40


probably cause him physical harm. Accordingly, there was sufficient evidence for

the trial court to find that the essential elements of domestic violence were proven

beyond a reasonable doubt.

       {¶31} Moreover, we cannot conclude that the trial court clearly lost its way

or created such a manifest miscarriage of justice that Barr’s conviction must be

reversed.   Here, the trial court, as finder of fact, was best able to view the

witnesses and judge their credibility. Although Barr maintained at trial that she

did not cause injury to Little, there was no other evidence in the record to

contradict the testimony and physical evidence presented by the prosecution.

Furthermore, the trial court specifically stated at trial that Barr’s “credibility is

somewhat suspect.” Based on the foregoing, the conclusion that Barr caused

physical harm to Little was not against the manifest weight of the evidence.

       {¶32} Accordingly, Barr’s first, second and third assignments of error are

also overruled.   And for all these reasons, the Judgment of the Marysville

Municipal Court of is affirmed.

                                                                Judgment Affirmed

WILLAMOWSKI, P.J. and PRESTON, J., concur.

/jlr




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