                                            [Cite as State v. Handyside, 2019-Ohio-2329.]

                         COURT OF APPEALS OF OHIO

                        EIGHTH APPELLATE DISTRICT
                           COUNTY OF CUYAHOGA

STATE OF OHIO,                              :

              Plaintiff-Appellee,           :
                                                                 No. 107586
              v.                            :

JOHN HANDYSIDE, III                         :

              Defendant-Appellant.          :



                          JOURNAL ENTRY AND OPINION

              JUDGMENT: AFFIRMED
              RELEASED AND JOURNALIZED: June 13, 2019


        Criminal Appeal from the Cuyahoga County Court of Common Pleas
                            Case No. CR-18-627283-A


                                    Appearances:

              Michael C. O’Malley, Cuyahoga County Prosecutor, and
              Michael Lisk and Erin Stone, Assistant County
              Prosecutors, for appellee.

              Patrick S. Lavelle, for appellant.


ANITA LASTER MAYS, J.:

               Appellant-defendant John Handyside, III (“Handyside”) appeals his

conviction and asks this court to reverse the judgment of the trial court. We affirm

the trial court’s decision.
              After a bench trial, Handyside was convicted of abduction, a third-

degree felony in violation of R.C. 2905.02(A)(2); and assault, a first-degree

misdemeanor in violation of R.C. 2903.13(A). Handyside was sentenced to a total

of 18 months imprisonment.

I.    Facts and Procedural History

              On March 26, 2018, Sarah Vidmar (“Vidmar”) went for a run. As she

was running, she noticed Handyside crossing the street towards her. Once Vidmar

realized that Handyside was running towards her, she tried to get out of his way and

tripped over an obstruction. When she fell, Handyside jumped on top of her and

held her down. Vidmar repeatedly told Handyside to stop, but he continued to hold

her down, grabbing, pushing, and hitting her in the face. Vidmar broke free, and

attempted to run, but Handyside grabbed her again and pushed her back down.

Vidmar began yelling for help. Justin Frankmann (“Frankmann”), who was out

walking his dog, heard Vidmar yelling for help, and ran to assist. Frankmann

pushed Handyside off of Vidmar. Without saying a word, Handyside walked away.

              Galen Fuller (“Fuller”) and Veronica Rose (“Rose”) witnessed the

attack from their car. Both saw Handyside dart across the street and punch Vidmar

in the face. Fuller, who was driving the car, turned around and drove to the location

of the attack. He jumped out of the vehicle and confronted Handyside along with

Frankmann. Rose called 911, and Fuller followed Handyside in his vehicle while

Rose was on the phone with 911, giving updates on Handyside’s location.
                Two police officers responded to the emergency call and interviewed

Vidmar. She told them that while on her daily run Handyside attacked her. The

officers were then notified of Handyside’s location and detained him upon their

arrival. Handyside told the officers that he saw a woman fall and tried to help her.

The officers brought Handyside back to the scene of the incident, where Vidmar was

waiting. Vidmar and the other witnesses identified Handyside as the man who

attacked her.

                Handyside was charged with kidnapping, with an attached sexual

motivation specification, abduction, gross sexual imposition, and assault.

Handyside, pursuant to Crim.R. 29, asked the trial court “to direct verdicts of

acquittal” as to the sexual motivation specification contained in Count 1, kidnapping,

as well as Count 3, the gross sexual imposition; the court granted the motion as to

both specifications. (Tr. 95-96.) The trial court found Handyside not guilty of

kidnapping, but guilty of abduction and assault.         The trial court sentenced

Handyside to 18 months imprisonment, and Handyside filed this appeal of his

conviction of the abduction charge only. He assigns two errors for our review:

     I.      The [trier of fact’s] determination in lower court was against the
             manifest weight of evidence; and

     II.     There was not sufficient evidence presented to the trier of fact in
             the lower court proceeding to convict the appellant of Count 2 of
             the indictment.
II.   Sufficiency of the Evidence

      A.      Standard of Review

              Claiming insufficient evidence,

      raises the question whether the evidence is legally sufficient to support
      the verdict as a matter of law. State v. Thompkins, 78 Ohio St.3d 380,
      386, 678 N.E.2d 541 (1997). In reviewing a sufficiency challenge, “[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, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph
      two of the syllabus.

State v. Herring, 2017-Ohio-743, 81 N.E.3d 133, ¶ 16 (8th Dist.).

      B.    Whether there was Sufficient Evidence Presented to
            Convict the Appellant of the Crime Charged in Count
            Two of the Indictment

              Handyside argues that there was not sufficient evidence to convict

him of abduction because he did not knowingly use force or made threats towards

Vidmar.

      “‘The test for sufficiency requires a determination of whether the
      prosecution met its burden of production at trial. State v. Bowden, 8th
      Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 13. An appellate court’s
      function when reviewing the sufficiency of the evidence to support a
      criminal conviction is to examine the evidence admitted at trial to
      determine whether such evidence, if believed, would convince the
      average mind of the defendant’s guilt beyond a reasonable doubt. Id.
      at ¶ 12. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),
      paragraph two of the syllabus.’”

State v. Carter, 2018-Ohio-2238, 114 N.E.3d 673, ¶ 12 (8th Dist.), quoting State v.

Pridgett, 8th Dist. Cuyahoga No. 101823, 2016-Ohio-687, ¶ 15.
               Handyside     was    convicted    of   abduction,    in   violation   of

R.C. 2905.02(A)(2). The statute reads as follows: “No person, without privilege to

do so, shall knowingly do any of the following: By force or threat, restrain the liberty

of another person under circumstances that create a risk of physical harm to the

victim or place the other person in fear.” R.C. 2905.02(A)(2). In State v. Barry, 145

Ohio St.3d 354, 2015-Ohio-5449, 49 N.E.3d 1248, ¶ 23, the Ohio Supreme Court

defined the term “knowingly” as follows:

      A person acts knowingly, 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 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.

               Handyside argues that he saw Vidmar fall to the ground and was only

trying to assist her. Handyside does not dispute that Vidmar’s liberty was restrained

or that she was in fear for her safety; however, Handyside argues that there is no

evidence that he knowingly used force or made threats toward Vidmar. Handyside’s

version of the events is completely different than the victim’s and witnesses’

accounts. Vidmar testified that Handyside held her down, punched her, grabbed

her, and when she broke free, pushed her down again.

               Additionally, three witnesses saw Handyside attack Vidmar and

punch her in the face. Vidmar testified, “[b]ut like I said, at that time once I was

down, I was trying to get back up and the individual was making it so that I either
couldn’t get back up or I couldn’t get away from him despite struggling.” (Tr. 33-

34.)

       Force is defined as: “any violence, compulsion, or constraint physically
       exerted by any means upon or against a person or thing.”
       R.C. 2901.01(A)(1). In State v. Gregg, 2d Dist. Champaign No.
       91-CA-15, 1992 Ohio App. LEXIS 5481 (Oct. 26, 1992), the court
       explained: “O.R.C. 2901.01(A) does not provide for any measure of the
       physical exertion that might constitute force, but instead looks to the
       purpose for which the physical exertion, however slight, has been
       employed. If that purpose is to overcome a barrier against the actor=s
       conduct, whether that barrier is in the will of a victim or the closed but
       unlocked door of a home, the physical exertion employed to overcome
       the barrier may constitute force.” See also, State v. Austin, 2d Dist.
       Montgomery No. 20445, 2005-Ohio-1035; State v. Johnson, 8th Dist.
       Cuyahoga Nos. 81692 and 81693, 2003-Ohio-3241. Furthermore,
       “force may properly be defined as ‘effort’ rather than ‘violence’ in a
       charge to the jury.”

Johnson, supra, citing State v. Lane, 50 Ohio App.2d 41, 45, 361 N.E.2d 535 (10th

Dist.1976).


               The evidence demonstrates that Handyside knowingly restrained the

liberty of Vidmar and placed her in fear.

       Under R.C. 2905.02(A)(2), a person commits abduction if he
       knowingly, “[b]y force or threat, restrain[s] the liberty of another
       person under circumstances that create a risk of physical harm to the
       victim or place the other person in fear.” The element of restraining
       another’s liberty may be proven by evidence that the defendant has
       “limit[ed] one’s freedom of movement in any fashion for any period of
       time.” State v. Wright, 8th Dist. No. 92344, 2009-Ohio-5229, at ¶ 23
       (citations omitted).

State v. Badgett, 8th Dist. Cuyahoga No. 95146, 2011-Ohio-1245, ¶ 12. The state

presented sufficient evidence that Handyside, regardless of his stated purpose of

assisting Vidmar, restrained her liberty by holding her down, hitting her about the
body and face, was aware that his conduct would cause a certain result: a risk of

physical harm and fear.

               If believed, the evidence and testimonies submitted to the trial court

would convince the average mind of the appellant=s guilt beyond a reasonable

doubt. We conclude that there was sufficient evidence to convict Handyside of

abduction. Therefore, Handyside=s second assignment of error is overruled.

III.   Manifest Weight of the Evidence

       A.    Standard of Review

               In State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d

1264, & 25, the Ohio Supreme Court addressed the standard of review for a criminal

manifest weight challenge, as follows:

       The criminal manifest-weight-of-the-evidence standard was explained
       in State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997). In
       Thompkins, the court distinguished between sufficiency of the
       evidence and manifest weight of the evidence, finding that these
       concepts differ both qualitatively and quantitatively. Id. at 386. The
       court held that sufficiency of the evidence is a test of adequacy as to
       whether the evidence is legally sufficient to support a verdict as a
       matter of law, but weight of the evidence addresses the evidence=s
       effect of inducing belief. Id. at 386-387. In other words, a reviewing
       court asks whose evidence is more persuasive C the state’s or the
       defendant’s? We went on to hold that although there may be sufficient
       evidence to support a judgment, it could nevertheless be against the
       manifest weight of the evidence. Id. at 387. “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.” Id. at 387, citing Tibbs v. Florida, 457 U.S. 31,
       42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).
               In our manifest weight review of a bench trial verdict, we recognize

that the trial court is serving as the factfinder, and not a jury:

      “‘Accordingly, to warrant reversal from a bench trial under a manifest
      weight of the evidence claim, this court must review the entire record,
      weigh the evidence and all reasonable inferences, consider the
      credibility of witnesses and determine whether in resolving conflicts in
      evidence, the trial court clearly lost its way and created such a manifest
      miscarriage of justice that the judgment must be reversed and a new
      trial ordered.’”

State v. Strickland, 183 Ohio App.3d 602, 2009-Ohio-3906, 918 N.E.2d 170, & 25

(8th Dist.), quoting Cleveland v. Welms, 169 Ohio App.3d 600, 2006-Ohio-6441,

863 N.E.2d 1125 (8th Dist.), citing Thompkins at 390. See also State v. Kessler, 8th

Dist. Cuyahoga No. 93340, 2010-Ohio-2094, & 13.

      B.     Whether the Trial Court’s Verdict was Against the
             Manifest Weight of Evidence

               Handyside argues that the same reasoning to determine that the

evidence was insufficient to sustain a guilty verdict can be used to determine that

the verdict was against the manifest weight of the evidence. We note that “[w]hen

reviewing the sufficiency of the evidence the court does not weigh the credibility of

the witnesses. State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d

216, & 79.” State v. Marrero, 10th Dist. Franklin No. 10AP-344, 2011-Ohio-1390,

& 10. When looking at the evidence and determining whether the state’s evidence

or Handyside’s evidence is more persuasive, we must weigh the evidence and

consider the credibility of the witnesses.

      Although, we review credibility when considering the manifest weight
      of the evidence, we are cognizant that determinations regarding the
      credibility of witnesses and the weight of the testimony are primarily
      for the trier of fact. The trier of fact is best able “‘to view the witnesses
      and observe their demeanor, gestures, and voice inflections, and use
      these observations in weighing the credibility of the proffered
      testimony.’” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865
      N.E.2d 1264, & 24, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio
      St.3d 77, 80, 461 N.E.2d 1273 (1984).

State v. Bridges, 8th Dist. Cuyahoga No. 105440, 2018-Ohio-1388, & 12.

               Vidmar=s testimony was corroborated by three different random

bystanders. All three witnesses saw Handyside attack Vidmar. There is no evidence

to support that Handyside was merely helping Vidmar up from the ground. Vidmar

testified that while she was running Handyside came right up to her. She stated, “I

saw the individual coming right at me and I noticed that they were getting down in

a crouch, almost getting ready to tackle me as if in a football stance, which I

recognized because I used to play football in a co-ed league.” (Tr. 32.) Vidmar also

testified about the force that Handyside exerted to keep her down on the ground.

She testified, “Initially I was pushing him off trying to break his grip at one point,

because I couldn’t get him to let me go, so I tried to turn my back and run. He

grabbed me by the back, as you see right there, to pull me back towards him. * * *

because every time I would try to stand, he would push me back down.” (Tr. 44.)

               We find that the trial court was in the best position to determine the

credibility of each witness. We do not find that the trial court clearly lost its way and

created such a manifest miscarriage of justice that the judgment must be reversed

and a new trial ordered.

               Handyside=s first assignment of error is overruled.
              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 appeal is terminated.

      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.


_____________________________
ANITA LASTER MAYS, JUDGE

MARY EILEEN KILBANE, A.J., and
LARRY A. JONES, SR., J., CONCUR
