[Cite as State v. Poole, 2018-Ohio-1905.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. John W. Wise, P. J.
        Plaintiff-Appellee                        Hon. W. Scott Gwin, J.
                                                  Hon. Craig R. Baldwin, J.
-vs-
                                                  Case No. 2017 CA 00076
RICHARD A. POOLE

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 2016 CR 02108


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         May 14, 2018



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

JOHN D. FERRERO                                MATTHEW A. PETIT
PROSECUTING ATTORNEY                           116 Cleveland Avenue, NW
RONALD MARK CALDWELL                           808 Courtyard Square
ASSISTANT PROSECUTOR                           Canton, Ohio 44702
110 Central Plaza South, Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2017 CA 00076                                                         2

Wise, P. J.

      {¶1}    Defendant-Appellant Richard A. Poole appeals his conviction for felony

domestic violence in the Court of Common Pleas, Stark County. Appellee is the State of

Ohio. The relevant facts leading to this appeal are as follows.

      {¶2}    On November 4, 2016, officers from the Canton City Police Department

were dispatched to a reported disturbance at a residence in the 1200 block of 10th Street

N.W. The two responding officers, upon arrival, observed visible injuries on the person

of Jennifer Z., appellant’s former girlfriend and the mother of four of his children. Jennifer

told the officers that appellant had physically assaulted her, as further discussed infra.

      {¶3}    Annie Poole, appellant’s mother, lived at the aforesaid residence. She told

the officers that she had to physically intervene during the struggle between Jennifer and

appellant.

      {¶4}    Appellant had an odor of alcoholic beverage about his person, but when he

came upon the officers, he was generally cooperative with them and did not try to flee.

Tr. at 156-157. However, appellant made no admissions to hitting or harming Jennifer.

      {¶5}    On December 12, 2016, Appellant Poole was indicted on one count of

domestic violence (R.C. 2919.25(A)/(D)(4)), a felony of the third degree (based on an

allegation of appellant having two or more prior domestic violence convictions). He

subsequently entered a plea of not guilty.

      {¶6}    Appellant filed for discovery and a bill of particulars on December 23, 2016.

Counsel for appellant filed a request for a competency evaluation on January 9, 2017.
Stark County, Case No. 2017 CA 00076                                                   3


      {¶7}   At a hearing on March 27, 2017, appellant and the State stipulated to a

competency report that had been finalized on February 23, 2017. The trial court adopted

same, and appellant was thus found competent to stand trial.

      {¶8}   The matter proceeded to a jury trial on April 18, 2017. Although Jennifer,

the victim, and Annie, appellant’s mother, both testified to versions of events varying

from what they had initially told the police, the jury found appellant guilty of domestic

violence as charged after hearing the evidence.

      {¶9}   On April 25, 2017, appellant was sentenced inter alia to thirty months in

prison.

      {¶10} On May 4, 2017, appellant filed a notice of appeal. He herein raises the

following sole Assignment of Error:

      {¶11} “I. THE APPELLANT’S CONVICTION WAS AGAINST THE SUFFICIENCY

AND MANIFEST WEIGHT OF THE EVIDENCE.”

                                              I.

      {¶12} In his sole Assignment of Error, appellant argues his conviction for felony

domestic violence was against the sufficiency and manifest weight of the evidence. We

disagree.

                                 Sufficiency of the Evidence

      {¶13} In reviewing a claim of insufficient evidence, “[t]he 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. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492,

paragraph two of the syllabus. It is well-established that the State bears the burden of
Stark County, Case No. 2017 CA 00076                                                      4


establishing each and every element of a charged crime and must do so with proof

beyond a reasonable doubt. See In re L.R., 8th Dist. Cuyahoga No. 93356, 2010-Ohio-

15, 2010 WL 27862, ¶ 11.

      {¶14} R.C. 2919.25(A) states as follows: “No person shall knowingly cause or

attempt to cause physical harm to a family or household member.”

      {¶15} The record in the case sub judice reveals Officer Brandon Schmidt saw

Jennifer, the victim, standing outside when he arrived. He observed a facial contusion

on Jennifer and “some kind of a hand marks around her neck.” Tr. at 153. The officer

also described her as cooperative and sober, with no indicators of substance use. Id.

Officer Schmidt’s partner, Officer Eric Lee, added that he observed fresh “bruising and

swelling” around Jennifer’s right eye. Tr. at 162-163. Officer Lee also testified that

although Jennifer did not seek treatment at the hospital on the evening in question, she

wrote out a written witness statement and a domestic violence form for the officers. She

therein reported that appellant had choked her and punched her in the eye, and that

Annie Poole, appellant’s mother, had intervened and grabbed appellant. Other than

appellant and Annie, Jennifer did not report the involvement of any other adult in the

incident at that time.

      {¶16} The officers also testified to the presence of Annie Poole, who was inside

the residence. Although Officer Lee did not have direct interaction with Annie at that time,

Officer Schmidt also described her as cooperative and sober. Tr. at 155, 165.

      {¶17} Furthermore, the jury viewed footage from Officer Schmidt’s POV on-person

camera, showing Jennifer stating to the officers at the scene that appellant had punched

and choked her, and also that Annie, appellant’s mother, had tried to break up the
Stark County, Case No. 2017 CA 00076                                                       5


struggle. The footage additionally showed Annie telling the officers that she had to pull

her son off of Jennifer.

      {¶18} The jurors also heard a recording of Jennifer’s 911 call made on the night

in question, during which appellant is identified as the person engaging in the assault.

      {¶19} In the case sub judice, there appears no dispute that Jennifer was a family

or household member under the statute or that she was physically harmed. As

summarized above, upon review of the record and transcript in a light most favorable to

the prosecution, we find that reasonable jurors could have found appellant guilty beyond

a reasonable doubt of the offense of domestic violence as charged.

                                Manifest Weight of the Evidence

      {¶20} Our standard of review on a manifest weight challenge to a criminal

conviction is stated as follows: “The court, reviewing 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 reversed and

a new trial ordered.” State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717.

See, also, State v. Thompkins (1997), 78 Ohio St.3d 380, 678 N.E.2d 541. The granting

of a new trial “should be exercised only in the exceptional case in which the evidence

weighs heavily against the conviction.” Martin at 175, 485 N.E.2d 717.

      {¶21} Even though a manifest weight analysis may involve an appellate court's

consideration of credibility (see State v. Sanders, 76 N.E.3d 468, 2016–Ohio–7204 (5th

Dist.), ¶ 38), the weight to be given to the evidence and the credibility of the witnesses

are primarily issues for the trier of fact (see, e.g., State v. Jamison (1990), 49 Ohio St.3d
Stark County, Case No. 2017 CA 00076                                                         6


182, 552 N.E.2d 180). Furthermore, this Court has previously expressed its awareness

“of the troubling phenomenon of recantation of testimony by persons involved in

domestic violence situations.” See State v. Manzell, 5th Dist. Stark No. 2006CA00258,

2007-Ohio-4076, ¶ 22.

      {¶22} During the trial, both Jennifer and Annie were declared to be court’s

witnesses. See Tr. at 177, 215. Although never mentioned in her verbal and written

reports to the police, Jennifer testified at trial that on the night in question, she became

upset that appellant had left the house and returned in the company of another female.

Jennifer did not provide a name, but she claimed this person was a white female with

curly hair, in her late twenties or early thirties, and she disparagingly described her as

“fat and ugly.” Tr. at 177-178. Jennifer told the jury that “ *** at one point I had got up and

walked like towards him, and me and her started like tussling around and he tried to

break us up.” Tr. at 175-176. She stated that the unnamed female had hit her, “but at the

time I thought it was [appellant] that hit me.” Tr. at 176.

      {¶23} Jennifer also testified that she had been drinking “quite a lot” starting in the

afternoon on November 4, 2016, consuming beer and liquor. Tr. at 175. When shown

portions of the POV video and asked why she wasn’t slurring her words at the scene,

Jennifer replied: “I guess I am a good drunk.” Tr. at 186.

      {¶24} Jennifer also denied on the witness stand having any contact with appellant

after the incident in question. The State nonetheless presented four recorded telephone

jail calls between appellant and Jennifer. She attempted to explain these calls by

asserting it was her teenage daughter, and not her, on the phone recordings, even

though a frequent subject of the conversations was the assault incident. Jennifer had no
Stark County, Case No. 2017 CA 00076                                                      7


explanation for the similarities between a version of events appellant appeared to be

suggesting in one of the calls and her trial testimony. See Tr. at 187, 189-194; State’s

Exhibits 8 & 9.

      {¶25} Annie Poole's trial testimony also differed from her statements to police on

November 4, 2016. Annie testified that appellant, her son, had come to the house with a

woman she didn’t know. Annie stated she could not describe this woman because she

hadn’t paid attention, other than recalling she may have been white. Annie made no

mention of intervening in the argument that ensued, stating that she instead went

upstairs to the bathroom. She told the jury she didn't remember telling the police that she

had to pull her son off of Jennifer, as she was very intoxicated at the time. See Tr. at

212-220.

      {¶26} Upon review, we find the jury, in implicitly rejecting the recantation testimony

by Jennifer and Annie on the witness stand vis-à-vis the officers’ recollections and the

audio/video evidence, did not clearly lose its way and create a manifest miscarriage of

justice requiring that appellant's conviction for domestic violence be reversed and a new

trial ordered.
Stark County, Case No. 2017 CA 00076                                                8


      {¶27} Appellant's sole Assignment of Error is therefore overruled.

      {¶28} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Stark County, Ohio, is hereby affirmed.



By: Wise, P. J.

Gwin, J., and

Baldwin, J., concur.



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