[Cite as State v. Buchar, 2017-Ohio-7601.]


                                   COURT OF APPEALS
                              TUSCARAWAS COUNTY, OHIO
                               FIFTH APPELLATE DISTRICT


 STATE OF OHIO                               :   JUDGES:
                                             :
                                             :   Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                   :   Hon. William B. Hoffman, J.
                                             :   Hon. Craig R. Baldwin, J.
 -vs-                                        :
                                             :   Case No. 2017AP010003
                                             :
 BRADLEY D. BUCHAR                           :
                                             :
                                             :
        Defendant-Appellant                  :   OPINION


CHARACTER OF PROCEEDING:                         Appeal from the Tuscarawas
                                                 County Court, Case No. 16 CRB
                                                 0038



JUDGMENT:                                        AFFIRMED




DATE OF JUDGMENT ENTRY:                          September 11, 2017




APPEARANCES:

 For Plaintiff-Appellee:                         For Defendant-Appellant:

 ROBERT R. STEPHENSON II                         DAN GUINN
 206 West High Ave.                              P.O. Box 804
 New Philadelphia, OH 44663                      New Philadelphia, OH 44663
Tuscarawas County, Case No. 2017AP010003
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Delaney, P.J.

       {¶1} Appellant Bradley D. Buchar appeals from the judgment entries of

conviction and sentence entered in the Tuscarawas County Court on July 27, 2016

and November 15, 2016. Appellee is the state of Ohio.

                     FACTS AND PROCEDURAL HISTORY

       {¶2} This case arose on January 21, 2016, around 3:00 p.m., when

appellant confronted Joshua L. Smith about Smith’s alleged taunts of “revving” an

engine at him and “giving [him] the finger” as Smith drove past appellant.

       {¶3} Appellant and Smith have a purported history of “bad blood” between

their families but until this incident no police intervention was required. Smith was

employed as a laborer by the Newcomerstown Water Department and drove a

department truck, accompanied by his coworker Allen Davis in the passenger seat.

The two were en route to an address on Ray Street to shut off a resident’s water.

       {¶4} Appellant, in the meantime, was in the parking lot of the Duke Gas

Station putting air in his tires. “The Duke” is at the corner of Ray Street and State

Street. Appellant observed Smith and Davis drive by, and heard the engine of the

water truck “rev” as it went around the corner. Appellant perceived the “revving”

to be a threat directed at him. Appellant also said Smith “gave [him] the finger.”

       {¶5} Moments later Smith was at work at the residence on Ray Street with

a “water key,” a large tool placed in a hole in the ground. Davis was seated inside

the truck with the passenger door open.        Appellant quickly pulled up in his

Suburban, onto the resident’s grass, jumped out, and yelled profanities at Smith.

He threatened to break Smith’s jaw. Appellant raised his elbow at Smith as if to
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strike him and Smith moved back. According to Smith and Davis, appellant then

“chest bumped” Smith, got back into his Suburban, and took off.

      {¶6} At trial, Smith admitted he “revved” the engine as he went around the

corner by the Duke to provoke appellant, but denied giving him the finger. Smith

and Davis said appellant “stormed” down the road toward them and pulled onto

the customer’s grass. When confronted by appellant, Smith said he “just stood

there” with the water key in his hands. Appellant swung at Smith but didn’t make

contact because Smith moved back. He described the only actual physical contact

between the two as a chest bump.

      {¶7} Davis confirmed appellant was “in Smith’s face,” calling him names

and using profanity, and Smith backed away when appellant swung at him. Davis

also witnessed the “chest bump.”

      {¶8} Ptl. John Gray reported to the Ray Street address to investigate. He

took statements from Smith and Davis and learned a possible assault occurred.

The next day he went to appellant’s house to get his side of the story. When asked

if he knew why Gray was there, appellant responded, “Because of [Smith]?” Gray

advised appellant of Smith’s assault complaint and appellant responded he “wasn’t

going to deny anything.” Appellant admitted he swung his elbow at Smith and

threatened to break his jaw, although he claimed this was a conditional threat “if

Smith came to his house.”

      {¶9} Gray went to a business across Ray Street from the residence and

obtained a video of the incident, entered as appellee’s Exhibit A.      In Gray’s

estimation, the video confirmed Smith’s story and clearly depicted appellant
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swinging at Smith, which Gray determined to be an assault.               Some of the

interaction on the video is blocked by the water truck and the chest bump is not

apparent on the video.

        {¶10} At trial, two witnesses testified on appellant’s behalf about the

“history” between appellant and Smith, and claimed Smith and Davis have

threatened appellant at times. The witnesses were not present during the incident

on January 21, and one witness acknowledged threats were made by appellant as

well.

        {¶11} Appellant testified on his own behalf. He stated he was filling his tire

when he heard “revving” and looked up to see Smith giving him the “evil eye” and

a “hand gesture.” Appellant finished filling his tire and then “decided to talk to these

guys,” acknowledging he went to the house where they were working and pulled

onto the curb.

        {¶12} Appellant testified as follows in pertinent part:

                      * * * *.

                      [Appellant]: When I looked up to see what the [revving] was

               [Smith] was staring at me and giving me the evil eye and had his

               hand gestured toward me.         I just shook my head and thought

               seriously, more of this? I finished filling up the air in my tires and as

               I was proceeding to leave I was facing the direction where they were

               sitting so instead of backing out onto State Street I just proceeded

               down there and I thought well, you know what, I’m going to stop and

               talk to these guys.
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                    [Defense counsel:] What did you do?

                    [Appellant]: I pulled up on the curb so I wouldn’t impede

             traffic. [Smith] was in front of the truck as he stated, as [Davis] stated,

             with a tool in the ground turning on the water. [Davis] was sitting in

             the truck with the door open which means [Smith] was here in front

             of the truck, [Davis] was sitting in the truck and I was behind the truck.

             I asked him, I said, “Listen, you fat motherfucker. Do you want some

             of me? Don’t fuck around with me on the job. I will bust your fucking

             jaw if you come to my house and pull this shit.” And he says, “You

             better get out of here,” and I did. I did make a motion. I stood in front

             of him.

                    [Defense counsel]: Show the Court what you did.

                    [Appellant]: And I went like this. I said “I will break your jaw

             for you if you come to my house and pull this shit.” I did not make

             any motion to harm him then or there. I told him if they continue this

             come to my house and I will do something about it.

                    * * * *.

                    T. 52-53.

      {¶13} Appellant was charged by criminal complaint with one count of

assault pursuant to R.C. 2903.13(A), a misdemeanor of the first degree, and

appellant entered a plea of not guilty. A criminal protection order was issued on

behalf Smith and against appellant pursuant to R.C. 2903.213.
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       {¶14} The matter proceeded to bench trial before a magistrate on July 13,

2016, and the magistrate found appellant guilty as charged by judgment entry

dated July 27, 2016. Appellant objected to the magistrate’s decision on October

17, 2016 but the trial court adopted the magistrate’s findings and conclusions

pursuant to a judgment entry dated November 16, 2016. On December 16, 2016,

the trial court imposed sentence upon appellant as follows: a fine of $250 and court

costs in addition to 30 days in jail with all 30 suspended on certain conditions.

       {¶15} Appellant now appeals from the judgment entries of his conviction

and sentence.

       {¶16} Appellant raises one assignment of error:

                            ASSIGNMENT OF ERROR

       {¶17} “APPELLANT’S CONVICTION FOR ASSAULT PURSUANT TO

R.C. 2903.13(A) WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”

                                    ANALYSIS

       {¶18} In his sole assignment of error, appellant asserts his conviction upon

one count of assault is against the manifest weight of the evidence. We disagree.

       {¶19} In determining whether a conviction is against the manifest weight of

the evidence, the court of appeals functions as the “thirteenth juror,” and after

“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 overturned and a new trial

ordered.” State v. Thompkins, 78 Ohio St.3d 380, 387, 1997–Ohio–52, 678 N.E.2d
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541. Reversing a conviction as being against the manifest weight of the evidence

and ordering a new trial should be reserved for only the “exceptional case in which

the evidence weighs heavily against the conviction.” Id. A manifest-weight

challenge “concerns ‘the inclination of the greater amount of credible evidence * *

* to support one side of the issue rather than the other.’” (Emphasis sic.) State v.

Montgomery, 148 Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180, ¶ 75,

reconsideration granted in part, 147 Ohio St.3d 1438, 2016-Ohio-7677, 63 N.E.3d

157, citing Thompkins, supra, 78 Ohio St.3d at 387, 678 N.E.2d 541, quoting

Black's Law Dictionary 1594 (6th Ed.1990).

       {¶20} R.C. 2903.13(A), assault, states, “No person shall knowingly cause

or attempt to cause physical harm to another * * *.” Appellant argues his conviction

is against the manifest weight of the evidence for three reasons: the testimony of

Smith and Davis was “inconsistent;” appellant did not knowingly attempt to cause

physical harm; and the distance between appellant and Smith established the “arm

swing” could not have been an attempt to cause physical harm.

       {¶21} Appellant cites several minor examples of inconsistencies in the

testimony of Smith and Davis.       As to any perceived inconsistencies in the

testimony of Smith and Davis, the weight of the evidence and the credibility of the

witnesses are determined by the trier of fact. State v. Yarbrough, 95 Ohio St.3d

227, 231, 2002–Ohio–2126, 767 N.E.2d 216, ¶ 79. None of these inconsistencies

go to the manifest weight of the evidence, however, especially in light of the

corroboration of the basic facts by Ptl. Gray, the video of the incident, and

appellant’s own testimony. The factfinder, in this case the magistrate, was free to
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accept or reject any and all of the evidence offered by the parties and assess the

witnesses' credibility. “While the [factfinder] may take note of the inconsistencies

and resolve or discount them accordingly * * * such inconsistencies do not render

defendant's conviction against the manifest weight or sufficiency of the evidence.”

State v. McGregor, 5th Dist. Ashland No. 15–COA–023, 2016–Ohio–3082, ¶ 10,

citing State v. Craig, 10th Dist. Franklin No. 99AP–739, unreported, 2000 WL

297252 (Mar. 23, 2000). The factfinder need not believe all of a witness' testimony,

but may accept only portions of it as true. Id. Our review of the entire record

reveals no significant inconsistencies or other conflicts in appellee's evidence that

would demonstrate a lack of credibility of appellee's witnesses. State v. Sanders,

5th Dist. Ashland No. 15–COA–33, 2016–Ohio–7204, 76 N.E.3d 468, ¶ 41.

       {¶22} As the trial court pointed out, the video is not definitive but we find it

to be compelling: a figure is seen at work near a white truck when a Suburban pulls

up abruptly, into the yard, and a second figure in a light-colored shirt quickly

emerges from the truck. The second figure, appellant, is visibly agitated and

gesticulating; the raised-arm gesture described as a “swing” is apparent. It is true

the video does not establish how close the assailant was to the victim.

Nevertheless, the video is an additional piece of credible evidence supporting the

testimony of Smith and Davis. We also note when Ptl. Gray questioned appellant

about the assault, appellant acknowledged that he knew why Gray sought him out,

and appellant admitted swinging at Smith.          Appellant has not shown that “a

miscarriage of justice” occurred or that the finder of fact “lost its way” in finding him

guilty of assault due to any inconsistencies in the evidence.
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       {¶23} Appellant also argues the “swing” was effectively a verbal warning to

Smith and not a knowing attempt to cause physical harm. Gray determined,

however, that the swing was an assault because it was an attempt to cause

physical harm; Smith and Davis testified it did not connect only because Smith

moved out of the way. R.C. 2903.13(A) does not require that a defendant cause

physical harm; it also prohibits individuals from attempting to cause physical harm

to another. State v. Belcher, 2nd Dist. Montgomery No. 24968, 2013-Ohio-1234, ¶

57 [testimony of victim that defendant attempted to hit her and swung at her

satisfies requirements for assault conviction]. See also, State v. Varner, 11th Dist.

Ashtabula No. 2002–A–0083, 2004-Ohio-2790, ¶ 31; State v. Barnes, 8th Dist.

Cuyahoga No. 87392, 2006-Ohio-5436, ¶ 11.

       {¶24} Appellant also contends he did not intend to injure Smith with the

swing, thus he did not have the requisite culpable mental state to sustain a

conviction for assault. A person acts knowingly, regardless of purpose, when he is

aware that his conduct will probably cause a certain result or will probably be of a

certain nature. State v. Miller, 96 Ohio St.3d 384, 2002-Ohio-4931, at ¶ 31.

“‘Probably’ is defined as ‘more likely than not’ or a greater than fifty percent

chance.” Miller v. Paulson, 97 Ohio App.3d 217, 222, 646 N.E.2d 521(10th

Dist.1994). The probable result of appellant swinging at Smith in the manner

shown on the video was that Smith would sustain physical harm, regardless of

whether such harm occurred.

       {¶25} Smith and Davis testified appellant “swung” at Smith; appellant

admitted as much to Gray and at trial; and the video shows the “swing.” We find
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the evidence, if believed, sufficient to demonstrate appellant knowingly attempted

to cause physical harm to Smith. We note the swing was accompanied by a threat

to “break [his] fucking jaw,” which appellant also admitted. Smith and Davis

testified the swing did not connect because Smith moved back. Appellant’s actions

indicate knowledge, or even desire, that injury will occur. State v. Fussell, 8th Dist.

Cuyahoga No. 87739, 2006-Ohio-6438, ¶ 44. The evidence adequately supported

a reasonable inference that appellant acted knowingly. Id. at ¶ 46.

       {¶26} In reaching this conclusion, we note that appellant’s testimony at

trial, and his insistence here, that he only threatened Smith conditionally is

completely belied by the video. Although portions of the incident are shielded from

view, it is apparent appellant rushed up to the scene of the men working, pulled

into the grass of someone’s yard, jumped from his vehicle, and swung at Smith.

His rage and agitation are palpable. The suggestion in his testimony that he

decided almost as an afterthought to “go talk to these guys” is belied by the manner

in which he did so, which is more consistent with Smith and Davis’ version of

events.

       {¶27} We conclude the greater amount of credible evidence supports

appellee’s version of events. Appellant’s assault conviction is not against the

manifest weight of the evidence and his sole assignment of error is overruled.
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                                CONCLUSION

       {¶28} Appellant’s sole assignment of error is overruled and the judgment

of the Tuscarawas County Court is affirmed.

By: Delaney, P.J.,

Hoffman, J. and

Baldwin, J., concur.
