[Cite as Cleveland v. Wiley, 2019-Ohio-2324.]
                               COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

CITY OF CLEVELAND,                                :

                 Plaintiff-Appellee,              :
                                                              No. 107437
                 v.                               :

DEANDREY P. WILEY,                                :

                 Defendant-Appellant.             :


                               JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: June 13, 2019


                      Criminal Appeal from the Cleveland Municipal Court
                                 Case No. 2017 CRB 022395


                                            Appearances:

                 Barbara A. Langhenry, Cleveland Director of Law, Karrie
                 Howard, Chief Prosecutor, and Verlinda L. Powell,
                 Assistant City Prosecutor, for appellee.

                 Mark A. Stanton, Cuyahoga County Public Defender, and
                 Robert McCaleb, Assistant Public Defender, for appellant.



PATRICIA ANN BLACKMON, J.:

                   Defendant-appellant, Deandrey P. Wiley, appeals from his conviction

for domestic violence. He assigns the following errors for our review:
      I. [Wiley’s] conviction was obtained on insufficient evidence.

      II. [Wiley’s] conviction was against the manifest weight of the
      evidence.

      III. Trial counsel rendered constitutionally ineffective assistance of
      counsel when he failed to impeach the alleged victim [with her prior
      inconsistent statement and the police body camera evidence].

               Having reviewed the record and pertinent law, we affirm.          The

apposite facts follow.

               On October 2017, Wiley was charged with domestic violence in

violation of R.C. 2919.25, following a confrontation with D.T., the mother of his

eight-year-old child.

               D.T. testified that she and Wiley lived together until 2012.      On

October 7, 2017, Wiley telephoned D.T. to ask about taking their child for an

overnight visit. D.T. refused to allow the overnight visit because Wiley would not

provide her with his address, and D.T. believed that Wiley’s current girlfriend “has

an issue with her.” A short time later, Wiley and his girlfriend drove to D.T.’s home

to get the child while D.T. was not there. Wiley telephoned D.T., and she stated that

Wiley could not take the child and that they would discuss the matter when she

returned home.

               While en route home, D.T., who was a passenger in her friend Aisha

Baylor’s (“Baylor”) car, spotted Wiley driving away with the child. Both drivers

stopped their vehicles, and D.T. removed the child from Wiley’s car. According to

D.T., Wiley got out of the car and said, “I should beat your ass.” He was “in [her]

face,” shook her, and “bumped [her] up against the car.” He then attempted to
remove the child from Baylor’s car, and banged on the car after Baylor locked the

doors. Baylor drove off with the child, and D.T. called the police. At that point

according to D.T., Wiley pushed her. She “remember[s] her hands touching the

ground.”

              On cross-examination, D.T. admitted that in her statement to police

after the incident, she did not indicate that Wiley had pushed her to the ground, or

that he had bumped her up against the car. She also told officers who responded to

her home later that day that Wiley had scratched her and given her bruises, but this

was not included in her written statement.

              Baylor testified that she stood between Wiley and D.T. as they argued

outside her car, but Wiley pushed her away. As Baylor drove away with the child,

she observed Wiley slap D.T. and push her to the ground. On cross-examination,

Baylor acknowledged that D.T. never reported being slapped.

              Proceeding to the defense, Wiley testified that he waited over an hour

for D.T. to return home, so he took the child to the park in order to pass the time.

While en route back to D.T.’s home, he observed D.T. in Baylor’s car travelling

behind him. When he stopped at a light on East 103rd Street, D.T. suddenly jumped

out of Baylor’s car and ran toward him. Wiley pulled over to talk to her, and she

abruptly removed the child from his car. Wiley testified that he and D.T. were

involved in a verbal altercation, but he denied pushing, striking, or threatening her.

However, he acknowledged that he was convicted of domestic violence in 2012 in

connection with a separate incident involving D.T.
               Wiley’s girlfriend, Tamia Johnson (“Johnson”), testified that Wiley

and D.T. shouted at each other, but Wiley did not put his hands on D.T. during the

incident.

               The defense next moved to submit police body camera video as

evidence of D.T.’s interaction with the police at her home after the incident, and to

refute her claim that she sustained bruises and scratches. The court denied the

motion because there had been no testimony from the officer who was wearing the

body camera and no prior evidence referring to such video evidence. However, the

court stated that it would entertain further briefs on the issue.

               The court subsequently convicted Wiley of domestic violence. The

court imposed a no-contact order and sentenced him to 180 days in jail, with 165

days suspended, $1,000 fine with $800 suspended, and three years of community

control sanctions.

             Sufficiency of the Evidence of Domestic Violence

               In the first assigned error, Wiley argues that the city’s evidence that

he shook and pushed D.T. during a verbal altercation is insufficient to establish

domestic violence. In opposition, the prosecuting attorney asserts that the evidence

is sufficient because Wiley threatened D.T., grabbed her, shook her, pushed her

against Baylor’s car, and pushed her to the ground.

               On review for sufficiency, courts are to assess not whether the

prosecution’s evidence is to be believed, but whether, if believed, the evidence

against a defendant would support a conviction. State v. Thompkins, 78 Ohio St.3d
380, 386, 678 N.E.2d 541 (1997). 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.

State v. Vickers, 8th Dist. Cuyahoga No. 97365, 2013-Ohio-1337, ¶ 17, citing State v.

Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

               As is relevant herein, R.C. 2919.25(A) provides that “[n]o person shall

knowingly cause or attempt to cause physical harm to a family or household

member.” 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).     “Physical harm” is “any injury, illness, or other

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

An offender does not have to cause a tangible injury to his victim in order to be

convicted of domestic violence in violation of R.C. 2919.25(A). Cleveland v. Mincy,

8th Dist. Cuyahoga No. 106224, 2018-Ohio-3565, ¶ 18; Strongsville v. Beall, 8th

Dist. Cuyahoga No. 103051, 2016-Ohio-1222, ¶ 7. R.C. 2919.25 does not require the

state to prove that a victim has sustained actual injury since a defendant can be

convicted of domestic violence for merely attempting to cause physical harm to a

family member. State v. Nielsen, 66 Ohio App.3d 609, 612, 585 N.E.2d 906 (6th

Dist.1990) (grabbing the victim and throwing her to the floor was sufficient to

establish the offense).

               Wiley relies upon State v. Dotson, 7th Dist. Columbiana No. 05 CO

28, 2006-Ohio-1093, for the proposition that pushing is insufficient to establish
domestic violence. In Dotson, the state presented the testimony of the investigating

officer, who did not witness the offense, but instead recited the victim’s allegations

from her written statement. In the written statement, the victim reported that

Dotson pushed her, dragged her out of the house, and threatened the children. The

court of appeals concluded that the conviction was not supported by sufficient

evidence because there was no evidence that the defendant caused or attempted to

cause physical harm. Id. at ¶ 13. The court held that “pushing or pulling a person,

without evidence of anything more, is simply not enough to justify a conviction for

domestic violence[.]” Id. Similarly, in Cleveland v. Calhoun, 8th Dist. Cuyahoga

No. 105520, 2018-Ohio- 1758, this court found insufficient evidence to support a

conviction for domestic violence where the defendant simply pushed the victim out

of the way, “there was no evidence that he pushed her down,” and the victim testified

that she was not harmed. Id. at ¶ 10-11.

              However, sufficient evidence to support a domestic violence

conviction has been established where the defendant pushed a victim to the ground.

See Nielsen; Cleveland Hts. v. Kleinhenz, 8th Dist. Cuyahoga No. 101618, 2015-

Ohio-1540, ¶ 14-15; State v. Young, 8th Dist. Cuyahoga No. 91007, 2008-Ohio-6158,

¶ 25; State v. Wolfe, 5th Dist. Tuscarawas No. 2015 AP 0012, 2015-Ohio-3455, ¶ 17;

State v. Grabe, 7th Dist. Mahoning No. 16 MA 0061, 2017-Ohio-1017, ¶ 11-12; State

v. Williams, 2nd Dist. Clark No. 2015-CA-113, 2016-Ohio-5356, ¶ 13. Similarly, in

Beall, sufficient evidence was presented where the defendant tackled the victim to

the ground. Id., 8th Dist. Cuyahoga No. 103051, 2016-Ohio-1222, ¶ 7.
               In this matter, the evidence demonstrates that Wiley said that he

should “beat” D.T., and he grabbed and shook her. He then pushed her into the car

and pushed her to the ground. This constitutes sufficient evidence from which a

rational trier of fact could find the offense of domestic violence.

               The first assigned error lacks merit.

                       Manifest Weight of the Evidence

               In the second assigned error, Wiley asserts that his conviction for

domestic violence is against the manifest weight of the evidence. He maintains that

the victim provided multiple versions of the events that occurred outside Baylor’s

car, and Baylor’s testimony that Wiley slapped D.T. was inconsistent with D.T.’s own

testimony.

               To determine whether a conviction is against the manifest weight of

the evidence, the reviewing court must look at the entire record, weigh the evidence

and all reasonable inferences, consider the credibility of the 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. Thompkins, 78 Ohio St.3d 380, 388, 678

N.E.2d 541.

               An appellate court may not merely substitute its view for that of the

jury, but must find that “‘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 reversed and a new trial ordered.’” Id. at 387, quoting State v. Martin, 20 Ohio
App.3d 172, 175, 485 N.E.2d 717 (1st Dist. 1983). Accordingly, reversal on manifest

weight grounds is reserved for “the exceptional case in which the evidence weighs

heavily against the conviction.” Id.

               After reviewing the record in this matter, weighing the evidence,

considering the credibility of witnesses, and resolving conflicts in the evidence, we

cannot say that the trial court clearly lost its way and created a manifest miscarriage

of justice in convicting Wiley of domestic violence. The record clearly demonstrates

that more than a simple verbal altercation occurred, and that Wiley grabbed and

pushed D.T. before pushing her to the ground. The conviction is not against the

manifest weight of the evidence.

               The second assigned error lacks merit.

                       Ineffective Assistance of Counsel

               Wiley next claims that his trial attorney was ineffective for failing to

impeach D.T. with her prior inconsistent statement and the police body camera

evidence.

               The Sixth Amendment to the United States Constitution guarantees a

criminal defendant the effective assistance of counsel. Courts employ a two-step

process to determine whether the right to effective assistance of counsel has been

violated. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984).    First, the defendant must show that counsel’s performance was

deficient. This requires showing that counsel made errors so serious that counsel

was not functioning as the “counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient performance

prejudiced the defense. This requires showing that counsel’s errors were serious

enough to deprive the defendant a fair trial, a trial whose result is reliable. Id.

                With regard to Wiley’s claim that his trial attorney was ineffective in

connection with his cross-examination of the victim, we note that his counsel

thoroughly cross-examined D.T. about all of her statements in this matter and all

omissions and contradictions. Therefore, this argument is not supported in the

record.

                With regard to Wiley’s claim that his attorney was ineffective for

failing to cross-examine the victim with information from the body camera video,

we note that this evidence is not in evidence. However, police arrived after the

confrontation, and based upon our review of the transcript, Wiley’s counsel

effectively cross-examined the city’s witnesses. Accordingly, we cannot say that

Wiley’s trial attorney was ineffective for failing to use the body camera video in this

case.

                 Judgment affirmed.

        It is ordered that appellee recover from appellant costs herein taxed.

        The court finds there were reasonable grounds for this appeal.

        It is ordered that a special mandate issue of this court directing the Cleveland

Municipal Court to carry this judgment into execution. The defendant’s conviction

having been affirmed, any bail pending is terminated. Case remanded to the trial

court for execution of sentence.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.


                                 _____
PATRICIA ANN BLACKMON, PRESIDING JUDGE

KATHLEEN ANN KEOUGH, J., and
EILEEN A. GALLAGHER, J., CONCUR
