[Cite as State v. Bagwell, 2019-Ohio-3187.]


                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                      :

                 Plaintiff-Appellee,                :
                                                             No. 107922
                 v.                                 :

CHARLES BAGWELL,                                    :

                 Defendant-Appellant.               :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: August 8, 2019


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                             Case No. CR-18-629368-A


                                              Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Andrew T. Gatti and Callista Plemel,
                 Assistant Prosecuting Attorneys, for appellee.

                 Michael H. Murphy, for appellant.



MARY J. BOYLE, P.J.:

                   Defendant-appellant, Charles Bagwell, appeals his convictions. He

raises three assignments of error for our review:
        1. There was insufficient evidence presented to convict the defendant
           of the charges.

        2. The defendant’s conviction was against the manifest weight of the
           evidence.

        3. The trial court erred in denying appellant’s motion for acquittal
           pursuant to Ohio Criminal Rule 29, where evidence is not sufficient
           to support a conviction.

               Finding no merit to his assignments of error, we affirm.

   I.      Procedural History and Factual Background

               On June 5, 2018, a Cuyahoga County Grand Jury indicted Bagwell for

one count of domestic violence in violation of R.C. 2919.25(A), a felony of the third

degree; one count of obstructing official business in violation of R.C. 2921.31(A), a

felony of the fifth degree; and one count of harassment by an inmate in violation of

R.C. 2921.38(B), a felony of the fifth degree. Bagwell pleaded not guilty to the

charges.

               Bagwell waived his right to a trial by jury, and the following evidence

was presented to the bench.

               T.N. testified that she dated Bagwell for approximately four years and

had lived with him and her mother in a duplex on Bunts Road in Lakewood, Ohio

for approximately two and a-half years. She testified that the police came to her

home numerous times over the years for arguments between her and Bagwell.

               T.N. stated that on June 1, 2018, Bagwell and she were in their

bedroom when they began arguing. She testified that Bagwell had used cocaine

earlier that evening. She said the argument escalated and that Bagwell slapped her
across the face. She said that she “saw stars” and put ice on her face because it was

“extremely red.” T.N. called 911 and told the officer that her boyfriend hit her “so

hard that it amplified [her] ear” and that her head was “swelling up.” The police

arrived, took pictures of T.N. and Bagwell, and arrested Bagwell.

               On cross-examination, when T.N. was asked about a picture taken of

her face shortly after she called police, T.N. agreed that she did not see any red

marks, scratching, or bruising.

               Lakewood Police Officer Michael Patton testified that he was working

on June 1, 2018, when he received an assignment to transfer Bagwell from

Lakewood Hospital and book him into the jail. He testified that Bagwell was sitting

in the common area of the jail as a corrections officer placed a mat into Bagwell’s

individual holding cell. Officer Patton testified that Bagwell, who was cooperative

with officers up until that point, became defiant and refused to go into his cell.

Officer Patton said he tried talking to Bagwell and help him to his feet, but that

Bagwell refused to move and “lock[ed] his body in an affixed fashion.” Officer

Patton yelled for other officers to assist in moving Bagwell into the cell. While trying

to move Bagwell, Officer Patton testified that Bagwell “locked his legs around the

fixed table” and that officers pried his legs off the table. He testified that once they

got Bagwell into his cell, Bagwell jumped to his feet, yelled profanities at the officers,

and spit at Officer Patton. Officer Patton said that the spit landed on his vest.

               The state played two videos showing different camera angles of the

jail incident and submitted a picture that was taken of Officer Patton’s “carrier”
showing where the spit landed. The state also submitted journal entries from four

prior criminal cases in which Bagwell was convicted of one count of menacing by

stalking (Cuyahoga C.P. No. CR-04-459361) and three counts of domestic violence

(Cuyahoga C.P. Nos. CR-10-543966, CR-09-529859, and CR-08-514751).

               The state rested, and Bagwell moved for an acquittal under Crim.R.

29, which the trial court denied.

               Bagwell was the only witness to testify in his defense. He stated that

on June 1, 2018, he was high on crack and that T.N. attacked him in the bedroom in

an attempt to grab a crack pipe from Bagwell. He said that T.N. scratched and

smacked him, and he identified pictures taken of his hand and face that showed

scratches allegedly from T.N. He said that T.N.’s mother called the police, not T.N.,

and he denied smacking T.N. Bagwell testified that as he was being led out of the

duplex by police, he head-butted two different windows, cracking one and

completely shattering the other, but maintained that the scratches on his body were

from T.N. and not from the windows.

               Bagwell explained that he was taken to the Lakewood Police

Department, but subsequently transferred to Lakewood Hospital due to medical

complications he suffered from a car accident.

               As to the incident in the jail, Bagwell testified that he asked the

corrections officer for an additional mat to be placed in his cell, but that the officer

refused. Bagwell said that he was pushed to the ground and that officers began

choking and punching him. He said that he asked the officers to help him up but
that they decided to drag him into the cell instead. He said that he wrapped his legs

around the table because he did not want to be dragged into the cell due to his

medical issues. He stated that he did not resist the officers, and he denied spitting

on Officer Patton.

                On cross-examination, Bagwell admitted that he told a different

officer that he spit on Officer Patton.

                Bagwell then renewed his Crim.R. 29 motion, which the trial court,

again denied.

                The trial court found Bagwell guilty of domestic violence and

harassment by an inmate, but not guilty of obstructing official business. The trial

court sentenced Bagwell to an 18-month prison term for domestic violence1 and a

12-month prison term for harassment by an inmate and ran the sentences

concurrent to one another. The trial court advised Bagwell that he was subject to a

three-year mandatory term of postrelease control for his domestic violence

conviction and a three-year discretionary term of postrelease control for his

harassment by an inmate conviction. The trial court waived costs and fines based

on Bagwell’s indigence.

                It is from this judgment that Bagwell now appeals.




      1  Bagwell’s conviction for domestic violence was enhanced because he was
previously convicted of domestic violence in 1997, 2007, 2008, 2009, and 2010, which
was included in his presentence investigation report.
   II.     Law and Analysis

         A. Sufficiency

               In his first and third assignments of error, Bagwell argues that there

was insufficient evidence to support his convictions for domestic violence and

harassment by an inmate.

               Crim.R. 29(A) provides for an acquittal “if the evidence is insufficient

to sustain a conviction of such offense or offenses.”        A sufficiency challenge

essentially argues that the evidence presented was inadequate to support the jury

verdict as a matter of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d

541 (1997). “‘The relevant question is whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.’” State v. Getsy, 84 Ohio

St.3d 180, 193, 702 N.E.2d 866 (1998), quoting Jackson v. Virginia, 443 U.S. 307,

99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “[A] conviction based on legally insufficient

evidence constitutes a denial of due process.” Thompkins at 386, citing Tibbs v.

Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed. 652 (1982). When reviewing a

sufficiency of the evidence claim, we review the evidence in a light most favorable to

the prosecution. State v. Hill, 75 Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996).
      1. Domestic Violence

               Bagwell was convicted of 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.”

               Bagwell argues that there was insufficient evidence to show that T.N.

suffered physical harm because the picture of her face did not show any bruising,

red marks, or scratches. However, under R.C. 2901.01(A)(3), “physical harm”

encompasses any injury, “regardless of its gravity or duration.”

               Further, “R.C. 2919.25(A) 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 [household] member.”

State v. Spade, 5th Dist. Delaware No. 08 CAC 04 0017, 2009-Ohio-2004, ¶ 26,

citing State v. Nielsen, 66 Ohio App.3d 609, 585 N.E.2d 906 (6th Dist.1990). We

have recognized that principle on a number of occasions. See State v. Stover, 8th

Dist. Cuyahoga No. 104388, 2017-Ohio-291, ¶ 15, citing Cleveland v. Amoroso, 8th

Dist. Cuyahoga No. 100983, 2015-Ohio-95 (“[A]n 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).”); Strongsville v. Beall, 8th Dist. Cuyahoga No. 103051, 2016-

Ohio-1222, ¶ 7 (A defendant can be convicted of domestic violence under R.C.

2919.25(A) “even without a tangible injury * * * [if there is evidence that the

defendant] was attempting to cause physical harm[.]”).
               Here, T.N. testified that Bagwell smacked her face and that she “saw

stars.” While T.N. did not suffer a visible injury, the above case law establishes that

there was still sufficient evidence to convict Bagwell of domestic violence because

T.N.’s testimony established that Bagwell attempted to cause her physical harm.

               Bagwell correctly points out that T.N., the victim, was the only witness

to testify; however, we have consistently held that a victim’s testimony can constitute

sufficient evidence for a conviction. See State v. Bacho, 8th Dist. Cuyahoga No.

93828, 2010-Ohio-4885, ¶ 13 (“S.W.’s testimony provides ample support for

appellant’s conviction of these charges.”); State v. Wring, 8th Dist. Cuyahoga No.

85711, 2005-Ohio-5443, ¶ 11 (The state “presented sufficient evidence to support the

theft conviction through the victim’s testimony.”); State v. Williams, 8th Dist.

Cuyahoga No. 57464, 1990 Ohio App. LEXIS 5221, 5 (Nov. 29, 1990) (“A victim’s

testimony * * * is sufficient to obtain and sustain a rape conviction.”).

               In fact, in Amoroso, 8th Dist. Cuyahoga No. 100983, 2015-Ohio-95,

we stated:

       Amoroso contends that his conviction was not supported by sufficient
       evidence because it was based solely upon Patricia’s testimony. He
       maintains that there was no physical evidence of her injuries. Looking
       at the evidence in a light most favorable to the state, however, Patricia’s
       testimony was sufficient to establish that Amoroso committed
       domestic violence against her beyond a reasonable doubt.

Id. at ¶ 30.

               As a result, we find T.N.’s testimony constituted sufficient evidence to

convict Bagwell of domestic violence.
       2. Harassment by an Inmate

               Bagwell was also convicted of harassment by an inmate under R.C.

2921.38(B), which states,

       No person, with intent to harass, annoy, threaten, or alarm a law
       enforcement officer, shall cause or attempt to cause the law
       enforcement officer to come into contact with blood, semen, urine,
       feces, or another bodily substance by throwing the bodily substance at
       the law enforcement officer, expelling the bodily substance upon the
       law enforcement officer, or in any other manner.

               Bagwell argues that there was insufficient evidence to show that he

spit on Officer Patton because the video footage from the jail “seems unclear” and

because Officer Patton failed to preserve his vest and take a sample of the spit. We

disagree.

               An officer’s testimony that the defendant spit on him is sufficient

evidence to convict the defendant under R.C. 2921.38(B). See State v. Pierce, 2017-

Ohio-8578, 100 N.E.3d 860, ¶ 52 (8th Dist.) (“The testimony of Officers Davis,

Petitt, and Hoover, if believed, is sufficient to establish that Pierce caused the officers

to come into contact with his blood by expelling the spit and blood in his mouth

upon the officers. Accordingly, Pierce’s convictions for harassment by an inmate are

supported by sufficient evidence.”); State v. Hammock, 2d Dist. Montgomery No.

24664, 2012-Ohio-419, ¶ 13 (“The State presented sufficient evidence to support a

finding that Hammock, acting with intent to harass or annoy officer Drerup, caused

Drerup to come into contact with a bodily substance, saliva, by expelling it upon the

officer. This finding is supported by the testimony of Drerup and two other officers
who watched the spitting incident.”). Officer Patton testified that Bagwell spit on

him and took a picture of his vest showing a wet mark next to his name tag.

Therefore, we find that there was sufficient evidence to support Bagwell’s conviction

for harassment by an inmate.

               Accordingly, we overrule Bagwell’s first and third assignments of

error.

         B. Manifest Weight

               In his second assignment of error, Bagwell argues that his convictions

were against the manifest weight of the evidence.

               A challenge to the manifest weight of the evidence tests whether the

prosecution has met its burden of persuasion. Thompkins, 78 Ohio St.3d at 390,

678 N.E.2d 541. On review from a manifest weight challenge, the appellate court is

tasked with reviewing all of the evidence in the record and in resolving the conflicts

therein, determining whether 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.” Id. at 387. “The discretionary power to grant a new trial should be

exercised only in the exceptional case in which the evidence weighs heavily against

the conviction.” Id. Moreover, this court recognizes that the “weight to be given the

evidence and the credibility of the witnesses are primarily for the trier of fact[.]”

State v. Peterson, 8th Dist. Cuyahoga Nos. 100897 and 100899, 2015-Ohio-1013,

¶ 73, citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967).
               Bagwell argues that his convictions were against the manifest weight

of the evidence because (1) T.N. lacked credibility, he denied smacking T.N., and the

photographic evidence does not show that T.N. suffered an injury, and (2) Officer

Patton failed to preserve his vest for testing the spit.

               Here, the trial court heard testimony from T.N. and Bagwell

concerning the domestic-violence incident and testimony from Officer Patton and

Bagwell concerning the jail incident. It also heard testimony and reviewed exhibits

showing no visible injuries on T.N.’s face and heard Officer Patton testify that he did

not preserve his vest on which Bagwell spit. Additionally, the state submitted T.N.’s

911 call in which she testified that she saw stars.

               Despite, as Bagwell puts it, the lack of corroborating evidence and

issue of preservation, the trial court found T.N. and Officer Patton to be more

credible than Bagwell. Given that credibility determinations are primarily for the

trier of fact, we will not disturb the trial court’s determination on appeal. After a

review of the evidence, we cannot say that the trier of fact “clearly lost its way” and

created a manifest miscarriage of justice warranting reversal.

               Accordingly, we overrule Bagwell’s second assignment of error.

               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 out of this court directing the

common pleas 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.



MARY J. BOYLE, PRESIDING JUDGE

PATRICIA ANN BLACKMON, J., and
EILEEN A. GALLAGHER, J., CONCUR
