[Cite as State v. Cruzbaez, 2019-Ohio-2452.]

                               IN THE COURT OF APPEALS
                       FIRST APPELLATE DISTRICT OF OHIO
                               HAMILTON COUNTY, OHIO




STATE OF OHIO,                                 :   APPEAL NO. C-180263
                                                   TRIAL NO. C-18CRB-5231
          Plaintiff-Appellee,                  :   1

        vs.                                          O P I N I O N.
                                               :
DAVID CRUZBAEZ,

        Defendant-Appellant.                   :




Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: June 21, 2019




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald Springman,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Sarah E. Nelson,
Assistant Public Defender, for Defendant-Appellant.
                     OHIO FIRST DISTRICT COURT OF APPEALS



CROUSE, Judge.

       {¶1}    Appellant David Cruzbaez appeals from the municipal court’s

judgment finding him guilty of aggravated menacing and sentencing him to 180 days

of community control suspended for 1 year, treatment if eligible, and a $2000 fine.

       {¶2}   In two assignments of error, Cruzbaez argues the trial court erred in

denying his motion for a judgment of acquittal because the state’s evidence was

insufficient to sustain a conviction and his conviction under R.C. 2903.21(A) was

contrary to the manifest weight of the evidence. For the following reasons, we

overrule Cruzbaez’s assignments of error and affirm the judgment of the trial court.

                               Factual Background

       {¶3}   One night, while Cruzbaez and his girlfriend, Cierra Waddell, were out

on a date, Waddell complained to Cruzbaez that her roommate, Amber Tucker, was

behind on her portion of the rent and the electric bill. Waddell, Tucker, and Tucker’s

16-month-old daughter recently had moved into a townhouse together, and within

two months, Tucker was unable to afford the rent and wanted to break the lease.

       {¶4}   When the couple arrived at the townhouse around 10:30 p.m., Waddell

collected the mail, which included the electric bill. She learned that the electric bill

was two-months overdue and the electric would be cut off the next month if not paid.

Waddell testified that this made her upset because she was struggling financially.

Cruzbaez testified that he felt like this was the last straw and that Tucker was just

using Waddell for money.

       {¶5}   Cruzbaez and Waddell decided to wake up Tucker to talk about the

situation, despite the fact that Tucker was already asleep in her bedroom. Tucker

testified that Cruzbaez, “Came into my room, pulled me out of bed, kept yelling that

                                               2
                       OHIO FIRST DISTRICT COURT OF APPEALS



we need to talk about the electric bill.” After Cruzbaez left the room, Tucker got out

of bed and walked next door to Waddell’s room, where the couple was waiting.

       {¶6}   According to Tucker, Cruzbaez “started screaming about the bills, how

I needed to get out.” During his testimony, Cruzbaez agreed that they did have raised

voices back and forth.

       {¶7}   Tucker left Waddell’s room and walked past her own room to her

daughter’s room with Cruzbaez following her continuing to yell and scream. Tucker

started packing to leave. She testified that she intended to leave so Cruzbaez would

have time to sober up and they could resolve the situation when he was no longer

intoxicated. Cruzbaez denied that he was intoxicated and testified that he only had

one beer that night.

       {¶8}   Cruzbaez returned to Waddell’s room, which shared a wall with

Tucker’s room. It is unclear from the testimony whether he shut the door. Tucker

testified, “While I was packing and that is when he made the statement that he had a

9mm gun in his car and I can call who I wanted. He’d shoot me and the baby,

whoever I brought, and that’s when I got my belongings and took them to the car.”

Tucker left with her daughter and called the police. She testified that she was scared

and took Cruzbaez’s statement as a threat because she did not know what he was

capable of.

       {¶9}   Cruzbaez and Waddell testified that Cruzbaez never threatened Tucker

and he did not even own a gun. An officer who arrived on the scene testified that a

gun was never located, but Cruzbaez appeared intoxicated and agitated.




                                             3
                     OHIO FIRST DISTRICT COURT OF APPEALS



                              Sufficiency of the Evidence

       {¶10} When reviewing a challenge to the sufficiency of the evidence, we must

determine, after viewing the evidence in a light most favorable to the prosecution,

whether any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492

(1991), paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307,

99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

       {¶11} Cruzbaez was convicted under R.C. 2903.21(A), which provides, “No

person shall knowingly cause another to believe that the offender will cause serious

physical harm to the person or property of the other person, the other person’s

unborn, or a member of the other person’s immediate family.” Cruzbaez argues that

the state failed to meet its burden in proving beyond a reasonable doubt that

Cruzbaez knowingly caused Tucker to believe he would cause her or her child serious

physical harm. Cruzbaez argues that at most he acted recklessly because the threat

was made in a conversation overheard through a wall. At trial, Cruzbaez’s defense

was that the threat was never made. Now, on appeal, he contends that he was talking

to Waddell and Tucker overheard his threatening statement from another room.

       {¶12} Under Ohio law knowingly is defined as:

       Regardless of purpose, when the person is aware that the person’s

       conduct will probably cause a certain result or will probably be of a

       certain nature. A person has knowledge of circumstances when the

       person is aware that such circumstances probably exist.          When

       knowledge of the existence of a particular fact is an element of an

       offense, such knowledge is established if a person subjectively believes

                                             4
                     OHIO FIRST DISTRICT COURT OF APPEALS



       that there is a high probability of its existence and fails to make inquiry

       or acts with a conscious purpose to avoid learning the fact.

R.C. 2901.22(B).

       {¶13} While Ohio law defines recklessly as:

       When with heedless indifference to the consequences, the person

       disregards a substantial and unjustifiable risk that the person’s

       conduct is likely to cause a certain result or is likely to be of a certain

       nature. A person is reckless with respect to circumstances when, with

       heedless indifference to the consequences, the person disregards a

       substantial and unjustifiable risk that such circumstances are likely to

       exist.

R.C. 2901.22(C).

       {¶14} With regard to the threat, Tucker testified, “While I was packing and

that is when he made the statement that he had a 9mm gun in his car and I can call

who I wanted. He’d shoot me and the baby, whoever I brought, and that’s when I got

my belongings and took them to the car.” Tucker testified in the first person, as

though the threat were made directly to her, using the word “I.” The record does not

support Cruzbaez’s argument that he was only talking to Waddell. The testimony

does not indicate where Tucker was when she heard the threat. It only indicates that

Cruzbaez was somewhere in Waddell’s room when he made the threat. What is

undisputed in the record is that this is a very small house, Tucker’s and Waddell’s

rooms share a wall, and Cruzbaez had been yelling.           It is unclear how loudly

Cruzbaez made the threat. Nevertheless, Tucker testified that she heard the threat.




                                               5
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶15} The record contains sufficient evidence, when viewed in the light most

favorable to the prosecution, that Cruzbaez acted knowingly. A rational trier of fact

could have found beyond a reasonable doubt that Cruzbaez was aware that Tucker

probably would hear him when he made the threatening statement.

       {¶16} Next, Cruzbaez argues that the evidence failed to establish a subjective

belief on Tucker’s part that Cruzbaez would cause her serious physical harm. “In

order to prove aggravated menacing, the state must show that the victim had a

subjective belief of fear of serious physical harm.”      State v. Landrum, 1st Dist.

Hamilton No. C-150718, 2016-Ohio-5666, ¶ 9. As to Tucker’s subjective belief of

physical harm, the state questioned her as follows:

       Q: Did you take that threat seriously?

       A: I didn’t know what he was capable of, so yes.

       Q: So you were scared?

       A: Yes.

       {¶17} Serious physical harm, as pertinent to this case, is defined in R.C.

2901.01(A)(5) as:

       (b) Any physical harm that carries a substantial risk of death;

       (c) Any physical harm that involves some permanent incapacity,

       whether partial or total, or that involves some temporary substantial

       incapacity;

                                         ***

       (e) Any physical harm that involves acute pain of such duration as to

       result in substantial suffering or that involves any degree of prolonged

       or intractable pain.

                                                6
                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶18} By its very nature, being shot can cause serious physical harm or

death. Tucker testified that she took the threat seriously and she was scared because

she did not know what Cruzbaez was capable of. She also left the house with her

small child late at night and called the police.

       {¶19} Viewing this evidence in a light most favorable to the prosecution, a

rational trier of fact could have found that Tucker believed Cruzbaez was going to

cause her serious physical harm.

       {¶20} Appellant’s first assignment of error is overruled.

                                   Manifest Weight

       {¶21} Cruzbaez’s second assignment of error is that his conviction for

aggravated menacing is contrary to the manifest weight of the evidence. To reverse a

conviction on the manifest weight of the evidence, this court must review the entire

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

the witnesses, and determine whether, in resolving the conflicts in the evidence, the

trier of fact clearly lost its way and created a manifest miscarriage of justice in

finding the defendant guilty. State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678

N.E.2d 541 (1997). When a court of appeals reverses a judgment of a trial court on

the basis that the verdict is against the weight of the evidence, the appellate court sits

as a “thirteenth juror” and disagrees with the factfinder’s resolution of the conflicting

testimony. Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).

       {¶22} The issue for the trier of fact in this case was whether to believe

Tucker’s version of the events or Cruzbaez and Waddell’s version. Because the trier

of fact is in a better position to observe the witnesses’ demeanor and weigh their

credibility, the weight of the evidence and the credibility of the witnesses are

                                                   7
                      OHIO FIRST DISTRICT COURT OF APPEALS



primarily for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212

(1967), paragraph one of the syllabus.

       {¶23} In this case, the trial court believed Tucker’s testimony beyond a

reasonable doubt. Cruzbaez was impeached in his testimony about an “other than

honorable discharge” from the Army when he admitted to lying on direct

examination by testifying it was an “honorable discharge.” After finding Cruzbaez

guilty, the trial court stated, “I believed her [Tucker]. And you’re a liar. I don’t know,

you know. You’re just a liar. And there’s really nothing worse than that.” There was

no mention by the trial court of Waddell’s testimony or credibility as noted in

Cruzbaez’s brief. Where there were conflicting accounts, the trier of fact was free to

reject that testimony. State v. Railey, 2012-Ohio-4233, 977 N.E.2d 703, ¶ 14 (1st

Dist.). The trial court is in the best position to weigh the witnesses’ demeanor and

credibility, and in doing so found Tucker’s testimony credible. Based on our review

of the record, we cannot conclude that the trial court lost its way and created such a

manifest miscarriage of justice that we must reverse Cruzbaez’s conviction and order

a new trial.

       {¶24} Cruzbaez alternatively asks this court to reduce his conviction from

aggravated menacing to menacing under R.C. 2903.22.               Menacing is a lesser

included offense of aggravated menacing, and the sole difference between the

offenses is the degree of harm threatened. State v. Britton, 181 Ohio App.3d 415,

2009-Ohio-1282, 909 N.E.2d 176, ¶ 52, 58 (2nd Dist.) (“Menacing, a fourth-degree

misdemeanor described in R.C. 2903.22, is identical to aggravated menacing, except

that the element of serious physical harm is missing.”). We have already found that a

rational trier of fact could have found that Tucker believed Cruzbaez was going to

                                                8
                      OHIO FIRST DISTRICT COURT OF APPEALS



cause her serious physical harm. Thus a conviction for aggravated menacing, not

menacing, was correct.

       {¶25} Appellant’s second assignment of error is overruled.

                                      Conclusion


       {¶26} Viewing the evidence in the light most favorable to the prosecution,

which we are required to do in reviewing sufficiency of the evidence, we conclude

that a rational trier of fact could have found that Cruzbaez knowingly caused Tucker

to believe that he would cause serious physical harm to her or her child. The trial

court as the trier of fact did not clearly lose its way and create a manifest miscarriage

of justice in finding Cruzbaez guilty of aggravated menacing.              Therefore, the

judgment of the trial court is affirmed.

                                                                      Judgment affirmed.



MYERS, P.J., and WINKLER, J., concur.



Please note:
       The court has recorded its own entry on the date of the release of this opinion.




                                                9
