[Cite as State v. Harris, 2018-Ohio-2338.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio                                    Court of Appeals No. L-17-1070

        Appellee                                 Trial Court No. CR0201402985

v.

Randall W. Harris                                DECISION AND JUDGMENT

        Appellant                                Decided: June 15, 2018

                                             *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Lauren Carpenter, Assistant Prosecuting Attorney, for appellee.

        Laurel A. Kendall, for appellant.

                                             *****

        OSOWIK, J.

        {¶ 1} This is an appeal from a June 9, 2015 judgment of the Lucas County Court

of Common Pleas, finding appellant guilty of one count of domestic violence, in violation

of R.C. 2919.25(A), and one count of felonious assault, in violation of R.C.

2903.11(A)(1).
         {¶ 2} On June 29, 2015, appellant was sentenced to a 14-month term of

incarceration for the domestic violence conviction, and a four-year term of incarceration

for the felonious assault conviction, ordered to be served consecutively. For the reasons

set forth below, this court affirms the judgment of the trial court.

         {¶ 3} Appellant, Randall W. Harris, sets forth the following two assignments of

error:

                I. The trial court erred when it denied defendant-appellant’s motion

         for acquittal pursuant to Criminal Rule 29.

                II. Appellant’s conviction for domestic violence was against the

         manifest weight of the evidence.

         {¶ 4} The following undisputed facts are relevant to this appeal. This case arises

from appellant’s physical attack of his wife at their marital home following appellant’s

perception that the victim had been unfaithful.

         {¶ 5} On June 8, 2015, a two-day jury trial commenced. At trial, the victim

testified that she was married to appellant at the time of the incident and they resided in

the upper level of a Toledo duplex owned by the victim’s parents. The parents lived in

the lower level unit. On December 7, 2014, appellant accused the victim of wearing a t-

shirt that, “came from another guy.” Appellant grew highly agitated, and accused the

victim of infidelity.

         {¶ 6} On December 8, 2014, the morning after the above-described incident, the

victim awoke to find appellant, “slapping me and he told me that he knew I still had a




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Myspace account and that I had been cheating on him our whole marriage and that I lied

to him the whole time.”

       {¶ 7} The victim testified that when she attempted to get up, appellant violently

pushed her back down onto the bed. In response, the victim picked up her phone to seek

help but appellant, “smacked it out of her hand.” The victim then testified that, “[the]

next thing I know [appellant] punched me so hard in the face. It took my breath away

and I [saw] black.” The victim described the balance of the incident as:

              And then we–we tussled and we fell on the bed. He then got on top

       of me and he started to strangle me, and he told hi[m]self, he said, “Randall

       kill this bitch.” He said, “You put this bitch down, man, put her down.”

       And in my head I said, oh, my God. I said, Lord please give me the

       strength to get out of this bed. He is really going to hurt me.

              ***

              And he is still on the bed, and he stood above me and he was like,

       “You kicked me.” I said, “You tried to kill me.” And next thing I know his

       boot went right in my face.

              I felt like I was going to pass out, and I asked God in my head to not

       let me because if I passed out I was afraid he was going to kill me. And

       my–finally I made my way off the bed and I ran to the front room, and he

       grabbed me by my hair and threw me on the couch. And he slapped me.




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              And this happened three times. Me going to the door and at the

       same time I am screaming trying to yell for my mom. And he was like,

       “Ain’t nobody going to hear you.”

       {¶ 8} Due to concerns about appellant, the victim and her mother previously

established a protocol that if there was an emergency situation, the victim would stomp

on the floor forcefully three times to alert her mother in the apartment below to seek help.

During the attack by appellant, the victim did stomp on the floor three times.

       {¶ 9} The victim’s mother next testified. She confirmed that on December 8,

2014, she heard, “some commotion going on upstairs above me” and immediately knew

something was wrong. When she went to see what was going on, the victim had already

made her way downstairs to her mother’s door. The victim looked, “frightened, scared,

and very pale.” The victim screamed to her mother that appellant had just tried to kill her

and then she called 9-1-1.

       {¶ 10} Shortly thereafter, the police responded to the victim’s residence. The

responding officer found the victim crying and upset. He testified that the victim was,

“rubbing her left eye,” which appeared to be, “pinkish in color with a little bit of

swelling.” The officer next went upstairs to locate appellant. Appellant was arrested for

domestic violence and violating a protection order.

       {¶ 11} In addition, a squad of firefighters arrived at the residence to provide any

necessary medical attention. One of the responding firefighters testified that the victim,

“had pain and swelling to the left eye.” He encouraged the victim go to the hospital for




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medical evaluation. She declined to go at that time but stated that her mother could take

her later on if it was necessary.

          {¶ 12} After the emergency responders left, the victim continued to experience

constant sharp pain in her left eye. Accordingly, the victim’s mother transported her to

Bay Park Hospital where she received two CAT scans. The first revealed, “left eye

orbital fractures involving the orbital floor and a nose fracture.” The second scan

revealed that the victim had suffered, “blowout fractures left orbit.” The victim’s severe

injuries resulted in chronic pain prompting her to seek a pain specialist for continued

localized pain and headaches.

          {¶ 13} Notably, the victim testified that prior to trial appellant sent her letters

encouraging her to recant and give false statements to the prosecutor on appellant’s

behalf.

          {¶ 14} After the prosecution rested, appellant testified on his own behalf. Despite

overwhelming evidence to the contrary, appellant denied causing the victim’s injuries.

Appellant unilaterally implied, without supporting evidence, that some unknown

intervening event and/or person had occurred causing the victim’s injuries.

          {¶ 15} Ultimately, the jury was not persuaded by appellant’s unsupported

testimony. Appellant was found guilty on both counts. This timely appeal ensued.

          {¶ 16} In the first assignment of error, appellant argues that his motion for

acquittal was improperly denied by the trial court. We do not concur.




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       {¶ 17} A Crim.R. 29 motion for acquittal challenge is reviewed on a sufficiency of

the evidence basis. State v. Brinkley, 105 Ohio St.3d 231, 2005-Ohio-1507, 824 N.E.2d

959, ¶ 39. As such, we review this assignment of error under the same standard used in

determining if a verdict is supported by sufficient evidence. State v. Tenace, 109 Ohio

St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37.

       {¶ 18} Whether there is sufficient evidence to support a conviction is a matter of

law. State v. Thompkins, 78 Ohio St.3d, 380, 386, 678 N.E.2d 541 (1997). In evaluating

a sufficiency of the evidence claim, “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.

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

appellate court’s function is to examine the evidence admitted at trial such that, if it is

believed, it would reasonably convince the average mind of the defendant’s guilt. Id.

       {¶ 19} We now consider whether the evidence presented at trial was sufficient to

convict appellant. R.C. 2919.25(A) establishes that domestic violence is, “knowingly

causing or attempting to cause physical harm to a family or household member.” R.C.

2903.11(A)(1) establishes that felonious assault occurs when one, “causes serious

physical harm to another or another’s unborn.”

       {¶ 20} Here, the victim furnished persuasive, detailed testimony demonstrating

that appellant inflicted the serious physical injuries sustained by the victim. The




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testimony was corroborated repeatedly by the testimony of the victim’s mother, the

emergency responders, the 9-1-1 recording, and the medical records.

       {¶ 21} Based upon the foregoing, we find that the record encompassed ample

evidence from which a rational trier of fact could find the elements of the offenses proven

beyond a reasonable doubt. Accordingly, the evidence presented was sufficient. The

trial court properly denied appellant’s motion for acquittal. Wherefore, we find

appellant’s first assignment of error not well-taken.

       {¶ 22} In the second assignment of error, appellant asserts that the convictions

were against the manifest weight of the evidence. We do not concur.

       {¶ 23} When reviewing a manifest weight of the evidence challenge, the appellate

court sits as a “thirteenth juror.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d

541 (1997). Accordingly, we make a factual determination regarding the evidence in the

case by reviewing the entirety of the record and inferences drawn therefrom, weighing

the evidence and considering the credibility of the witnesses. State v. Prescott, 190 Ohio

App.3d 702, 2010-Ohio-6048, 943 N.E.2d 1092, ¶ 48 (6th Dist.), citing Thompkins at

387.

       {¶ 24} Ultimately, the court must decide, in resolving any conflicts in the

evidence, 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.

In this capacity, we reverse a conviction on manifest weight grounds for only the most




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“exceptional case in which the evidence weighs heavily against the conviction.”

Thompkins at 387.

       {¶ 25} In the manifest weight challenge, appellant contends that the prosecution

failed to proffer enough evidence to eliminate a reasonable doubt of his innocence. The

record of evidence does not bear out appellant’s position.

       {¶ 26} Despite appellant’s arguments to the contrary, the unrefuted evidence

supporting the verdict includes the victim’s testimony, the victim’s mother’s

corroborating testimony, the 9-1-1 recording, the consistent testimony of the first

responders, the medical records, and the exhibits of injuries.

       {¶ 27} In contrast, appellant has suggested, without supporting evidence, that the

victim’s injuries occurred later and were caused by an unknown, intervening party.

There is no evidentiary support for this claim. It constitutes nothing beyond a speculative

theory and cannot contravene the opposing weight of the evidence.

       {¶ 28} Appellant has failed to demonstrate that the trier of fact clearly lost its way

and created a manifest miscarriage of justice. Wherefore, we find appellant’s second

assignment of error not well-taken.

       {¶ 29} Based upon the foregoing, the judgment of the Lucas County Court of

Common Pleas is hereby affirmed. Appellant is ordered to pay the costs of this appeal

pursuant to App.R. 24.


                                                                         Judgment affirmed.




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                                                                      State v. Harris
                                                                      C.A. No. L-17-1070




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
James D. Jensen, J.                                        JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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