[Cite as State v. Nichols, 2013-Ohio-3898.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. Sheila G. Farmer, P. J.
        Plaintiff-Appellee                        Hon. John W. Wise, J.
                                                  Hon. Patricia A. Delaney, J.
-vs-
                                                  Case No. 12 CA 102
WILLIAM NICHOLS

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 12 CR 308H


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         September 9, 2013



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

JAMES J. MAYER, JR.                            KRISTIN BROWN
PROSECUTING ATTORNEY                           CALHOUN, KADEMENOS & CHILDRESS
JOHN C. NIEFT                                  Suite 200
ASSISTANT PROSECUTOR                           Six West Third Street
38 South Park Street                           Mansfield, Ohio 44901
Mansfield, Ohio 44902
Richland County, Case No. 12 CA 102                                                    2

Wise, J.

       {¶1}   Appellant William Nichols appeals his conviction and sentence for

domestic violence in the Court of Common Pleas, Richland County. The relevant facts

leading to this appeal are as follows.

       {¶2}   Appellant’s mother, Lisa Lutz, owns a house on Third Avenue in

Mansfield, Ohio. Lisa’s other son, Ronnie, has previously used that house as his

residence. On April 29, 2012, appellant insisted that Lisa give him a ride in her vehicle

to the Third Avenue location, so that appellant could look for a portable heater another

relative wanted to use. At that time, Ronnie apparently was not living in the house,

although some of his personal possessions were there.

       {¶3}   Lisa proceeded to give appellant a ride as requested. Appellant’s teenage

son, N.N., accompanied them. Appellant went in the house via a basement door and

kicked in an interior door to the upstairs. After everyone had entered, appellant became

increasingly frustrated because of the missing heater, while Lisa was upset about the

state of Ronnie’s belongings. After everyone had finally exited, an altercation ensued

near the house between appellant and Lisa. A neighbor called 911, and, as further

discussed infra, Lisa reported that appellant had struck her in the head, knocked her to

the ground, and repeatedly punched her.

       {¶4}   Appellant was subsequently indicted for one count of domestic violence,

charged as a felony of the third degree based on appellant’s two prior convictions of

related offenses as listed in the statute. See R.C. 2919.25(D)(4). The case proceeded to

a jury trial on September 17 and 18, 2012. Appellant was found guilty of domestic

violence as charged in the indictment.
Richland County, Case No. 12 CA 102                                                      3


      {¶5}   On September 19, 2012, the trial court sentenced appellant to two years in

prison and three years of post-release control.

      {¶6}   Appellant filed a notice of appeal on October 8, 2012. He herein raises the

following three Assignments of Error:

      {¶7}   “I. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S RULE

29 MOTION.

      {¶8}   “II.    APPELLANT'S CONVICTIONS ARE NOT SUPPORTED BY

LEGALLY SUFFICIENT EVIDENCE AND ARE AGAINST THE MANIFEST WEIGHT OF

THE EVIDENCE.

      {¶9}   “III. THE TRIAL COURT ERRED IN SENTENCING APPELLANT BY NOT

ADHERING TO OHIO REVISED CODE 2929.11 AND 2929.12, AND THE SENTENCE

IS NOT SUPPORTED BY THE RECORD.”

                                              I.

      {¶10} In his First Assignment of Error, appellant contends the trial court erred in

denying his motion for acquittal under Crim.R. 29. We disagree.

      {¶11} An appellate court reviews a trial court's denial of a Crim.R. 29 motion for

acquittal using the same standard used for reviewing a sufficiency of the evidence

claim. State v. Barron, 5th Dist. Perry No. 05 CA 4, 2005-Ohio-6108, ¶ 38. In reviewing

a claim based on the sufficiency of the evidence, “[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 (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the

syllabus.
Richland County, Case No. 12 CA 102                                                       4


       {¶12} Appellant in the case sub judice was convicted of domestic violence. R.C.

2919.25(A) states as follows: “No person shall knowingly cause or attempt to cause

physical harm to a family or household member.” Pursuant to R.C. 2919.25(D)(4), if a

person has two or more prior domestic violence convictions or convictions of related

offenses involving a household or family member, the offense of domestic violence

becomes a felony of the third degree. Physical harm to a person means "any injury,

illness, or other physiological impairment, regardless of its gravity or duration." See R.C.

2901.01(A)(3).

       {¶13} Appellant first maintains that there were “vast inconsistencies in the

testimony of the witnesses, and most importantly, in the testimony of the victim herself.”

Appellant’s Brief at 7. However, “[a] defendant is not entitled to reversal on the grounds

of sufficiency of the evidence and manifest weight of the evidence merely because

inconsistent testimony was offered at trial.” State v. Garner, 10th Dist. Franklin No.

07AP-474, 2008-Ohio-944, ¶ 19, citing State v. Raver, 10th Dist. Franklin No. 02AP-604,

2003-Ohio-958. Challenges to the sufficiency of the evidence based upon instances of

inconsistent testimony, memory defects, and the like are witness credibility issues which

are properly resolved by the trier of fact. See State v. Daniel, 10th Dist. Franklin No.

95APA05-657, 1996 WL 11268 (additional citations omitted).

       {¶14} In the case sub judice, the State presented, inter alia, the testimony of the

victim, Lisa Lutz, concerning the incidents at the house on Third Avenue on April 29,

2012. Lisa recounted that appellant had first kicked in an interior door while he was

going through the house. Lisa stated that appellant and N.N. left the house first and

started heading down the street, but then returned while she was putting some things in
Richland County, Case No. 12 CA 102                                                       5


her car. Appellant then came up and struck her in the head from behind while Lisa was

attempting to call her husband on her cell phone to see if he could help fix the door. Tr.

at 90-93. After falling to the ground, Lisa looked up and saw appellant standing over her

and yelling. Tr. at 93. According to Lisa, appellant then grabbed her by the neck and

dragged her out of the alley; he then threw her over the hood of her car. Id. Lisa also

saw N.N. start to kick her vehicle. After she yelled at the child to stop, appellant grabbed

her again. Lisa testified that appellant hit her with a closed fist about six or seven times

during the incident. Tr. at 98. Lisa noted that she tried to hit back with her purse, but

appellant grabbed it and threw it into the yard. She also recalled appellant kicking her

cell phone, causing it to break into pieces. Tr. at 95. Lisa summed up that appellant

“struck me several times.” Tr. at 97. She recalled: “ *** [H]e’s dragging me and throwing

me and striking me. I mean, it was just a big whirlwind of hitting and throwing.” Id.

Appellant thereafter left the scene, saying that he would not go to jail because his son

would not testify against him. Tr. at 95-96. Lisa stated at trial that she was embarrassed

to seek medical treatment, as she is employed at a Mansfield area hospital. Tr. at 110.

          {¶15} The State also presented the testimony of Joyce Thornton, a neighbor.

Although she was not close enough to the altercation to see faces, she saw a man

come across the street and “hit a woman”. Tr. at 115. After hitting the woman, she saw

the man stand over the woman and appear to kick at her. Thornton then called the

police.

          {¶16} The record also indicates that when officers arrived shortly after appellant

left the scene, Lisa was crying and her face was red. She also complained of back and
Richland County, Case No. 12 CA 102                                                    6


leg pain from the incident. Tr. at 96, 111, 124, 130. The officers took photographs of a

cut on Lisa's finger and some red markings in the skin around her neck. Tr. at 124, 138.

      {¶17} Upon review of the record, even in the absence of more extensive visible

injuries to Lisa Lutz, we hold rational triers of fact could have found, beyond a

reasonable doubt, that appellant knowingly caused or attempted to cause physical harm

to a family member for purposes of R.C. 2919.25(A). We therefore hold appellant's

conviction for domestic violence was supported by sufficient evidence, and the motion

for acquittal under Crim.R. 29 was properly denied.

      {¶18} Appellant's First Assignment of Error is therefore overruled.

                                              II.

      {¶19} In his Second Assignment of Error, appellant contends his conviction for

domestic violence is not supported by sufficient evidence and is against the manifest

weight of the evidence. We disagree.

      {¶20} In regard to the sufficiency of the evidence, we find further review of this

issue would be redundant based on our analysis under appellant’s First Assignment of

Error. We would note at this juncture that appellant's “sufficiency of the evidence”

argument also goes to the issue of whether appellant established self defense.

However, the Ohio Supreme Court has recognized: “[T]he due process ‘sufficient

evidence’ guarantee does not implicate affirmative defenses, because proof supportive

of an affirmative defense cannot detract from proof beyond a reasonable doubt that the

accused had committed the requisite elements of the crime.” State v. Hancock, 108

Ohio St.3d 57, 2006–Ohio–160, ¶ 37, quoting Caldwell v. Russell (C.A.6, 1999), 181

F.3d 731, 740, abrogated on other grounds (internal quotations omitted). In light of
Richland County, Case No. 12 CA 102                                                        7

Hancock, we will address the self-defense issue as part of our review of appellant's

“manifest weight” claim.

       {¶21} Our standard of review on a manifest weight challenge to a criminal

conviction is stated as follows: “The court, 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 reversed

and a new trial ordered.” State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d

717. See also, State v. Thompkins (1997), 78 Ohio St.3d 380, 678 N.E.2d 541. The

granting of a new trial “should be exercised only in the exceptional case in which the

evidence weighs heavily against the conviction.” Martin at 175, 485 N.E.2d 717.

       {¶22} Appellant maintains the trial record reveals several inconsistencies in the

overall testimony. For example, despite neighbor Joyce Thornton’s recollection that Lisa

and appellant yelled at each other for ten to fifteen minutes (see Tr. at 117), Lisa

maintained in her testimony that she didn't yell. See Tr. at 101. Lisa also stated at trial

that she was concerned that N.N. was going to kick her car, and she clarified that she

had never said appellant kicked her car. Tr. at 104. When questioned on cross

examination concerning her statement to police, Lisa was then confronted with her

statement to police that "[h]e started to kick my car." See Tr. at 105. When questioned

further about this by defense counsel, Lisa then stated "that was supposed to be [N.N.]."

Tr. at 111. Lisa also stated in her trial testimony that she had "never" hit appellant at any

point. Tr. at 108. However, when again confronted with her police statement on cross
Richland County, Case No. 12 CA 102                                                        8


examination, she admitted that she had hit appellant with her purse “after several

punches” from him. See Tr. at 109.

       {¶23} Appellant also urges that the testimony of his son N.N., age thirteen at the

time of trial, should have led the jury to conclude that appellant acted in self-defense.

The affirmative defense of self-defense places the burden of proof on a defendant by a

preponderance of the evidence. In re Collier, 5th Dist. Richland No. 01 CA 5 (Aug. 30,

2001), citing State v. Caldwell, 79 Ohio App.3d 667, 679, 607 N.E.2d 1096. According

to N.N., he had waited on the porch at the house on Third Avenue and heard Lisa and

appellant argue for some time, and as he and appellant started to walk away, “my

grandma kept yelling at my dad for no apparent reason." Tr. at 151. N.N. then asserted

that when he and appellant got to the end of the street, Lisa and appellant continued to

argue about getting a ride home. N.N. testified that it was at this point that Lisa went

after appellant first by striking him in the head with her purse. Id. N.N. observed

appellant reacting by throwing Lisa’s purse and pushing her down; Lisa purportedly

continued to scream at appellant and "kept punching him." Id. According to N.N.,

appellant “didn't want to really hit her so he tried to ... walk away, but she kept going

back to him." Id. N.N. did not believe Lisa had any injuries; he further charged that “my

grandma is a liar." Tr. at 152-154. N.N. added that Lisa had slapped him on the hand for

trying to take batteries from the Third Avenue residence. Tr. at 150. But he also

explained that appellant “got an attitude because [Lisa] was calling him stupid ***.” Tr. at

154.

       {¶24} We have frequently recognized that the jurors in a criminal trial “as the

firsthand triers of fact, [are] patently in the best position to gauge the truth.” See, e.g.,
Richland County, Case No. 12 CA 102                                                    9

State v. Frazier, 5th Dist. Stark No. 2010CA00042, 2011-Ohio-434, ¶ 23. Furthermore,

“[w]hile the jury may take note of the inconsistencies and resolve or discount them

accordingly * * * such inconsistencies do not render [a] defendant's conviction against

the manifest weight * * *.” State v. Craig (Mar. 23, 2000), Franklin App. No. 99AP–739,

citing State v. Nivens (May 28, 1996), Franklin App. No. 95APA09–1236.

       {¶25} Upon review of the record, we find the jury could have properly rejected

the defense of self-defense and decided that appellant was the instigator of the assault

on Lisa, and we hold that the jurors, in resolving any conflicts in the evidence, did not

create a manifest miscarriage of justice requiring a new trial.

       {¶26} Accordingly, appellant's Second Assignment of Error is overruled.

                                                III.

       {¶27} In his Third Assignment of Error, appellant contends the trial court

erroneously failed to consider the R.C. 2929.11 and 2929.12 purpose and seriousness

factors in its analysis. We disagree.

       {¶28} R.C. 2929.11 and 2929.12 require consideration of the purposes and

principles of felony sentencing, as well as the factors of seriousness and recidivism.

See State v. Mathis, 109 Ohio St.3d 54, 846 N.E.2d 1, 2006–Ohio–855, ¶ 38. However,

“in exercising its discretion, a court is merely required to ‘consider’ the purposes of

sentencing in R.C. 2929.11 and the statutory * * * factors set forth in R.C. 2929.12.”

State v. Sutton, Cuyahoga App.No. 97132, 2012–Ohio–1054, ¶ 11, citing State v. Lloyd,

Lake App.No.2006–L–185, 2007–Ohio–3013, ¶ 44. The findings of the trial court in

regard to R.C. 2929.11 and 2929.12 need not be in the sentencing transcript if the
Richland County, Case No. 12 CA 102                                                   10

findings are contained in the journal entry. See State v. O'Donnell, Summit App.No.

23525, 2007–Ohio–1943, ¶ 7 (additional citations omitted).

      {¶29} In the case sub judice, the trial court patently stated in the sentencing

entry that it had “ *** considered ... the principles and purposes of sentencing in R.C.

2929.11, and the seriousness and recidivism factors in R.C. 2929.12.” See Sentencing

Entry, September 19, 2012, at 1. Thus, it is not clear to us why appellant presently

asserts that the court did not “ *** even reference the purposes and principles set forth

in R.C. 2929.11 and R.C. 2929.12.” See Appellant’s Brief at 12, emphasis sic.

Furthermore, at the sentencing hearing, the trial judge stated: "This is not the worst

case of domestic violence we've had. Of course, if it were, we wouldn't be talking about

domestic violence. We'd be talking about felonious assault. What exacerbates this

situation as much as it does is that it's your mother who is the victim. I know it hasn't

been a very familial relationship of any real sort between you and your mother and your

son. I know that. Because the woman that's been here in court, she considers you her

son and you consider her your momma, essentially. But it's still an awful thing. *** My

mother is now long deceased, but I just can't even imagine * * * what I would do if I had

somebody hit my mother, push my mother around. I imagine I'd be out of control." Tr. at

197-198.

      {¶30} Upon review of the sentencing entry and transcript, we find the trial court

properly considered the purposes and principles of felony sentencing, and the factors of

seriousness and recidivism.

      {¶31} Appellant finally contends his sentence is inconsistent with sentences for

similar crimes committed by similar offenders. See R.C. 2929.11(B). Ohio courts have
Richland County, Case No. 12 CA 102                                                        11

recognized that consistency in sentencing “does not necessarily mean uniformity.” See

State v. Ryan, 1st Dist. Hamilton No. C-020283, 2003-Ohio-1188, ¶ 10. As an appellate

court, we may decline to compare a particular defendant's sentences with similar crimes

in this or other jurisdictions unless there is an inference of gross disproportionality. State

v. King, 5th Dist. Muskingum No. CT06-0020, 2006 -Ohio- 6566, ¶ 26, citing State v.

Vlahopoulos, 8th Dist. Cuyahoga No. 80427, 2002-Ohio-3244. Appellant herein chiefly

relies on a single case from another appellate district wherein the defendant was

sentenced to twelve months on a fourth-degree domestic violence conviction involving a

five-year-old victim. See State v. Cantrell, 2nd Dist. Montgomery No. 22916, 2009-Ohio-

3011. Upon review, we find appellant's arguments under R.C. 2929.11(B) are

unpersuasive under the facts and circumstances of this matter.

       {¶32} Appellant's Third Assignment of Error is overruled.

       {¶33} For the foregoing reasons, the judgment of the Court of Common Pleas,

Richland County, Ohio, is hereby affirmed.

By: Wise, J.

Farmer, P. J., and

Delaney, J., concur.


                                              /s/ John W. Wise_________________
                                              HON. JOHN W. WISE


                                              /s/ Sheila G. Farmer______________
                                              HON. SHEILA G. FARMER


                                              /s/ Patricia A. Delaney____________
                                              HON. PATRICIA A. DELANEY
JWW/d 0819
Richland County, Case No. 12 CA 102                                             12


           IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT




STATE OF OHIO                             :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
WILLIAM NICHOLS                           :
                                          :
       Defendant-Appellant                :         Case No. 12 CA 102




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Richland County, Ohio, is affirmed.

       Costs assessed to appellant.




                                          /s/ John W. Wise_________________
                                          HON. JOHN W. WISE


                                          /s/ Sheila G. Farmer______________
                                          HON. SHEILA G. FARMER


                                          /s/ Patricia A. Delaney____________
                                          HON. PATRICIA A. DELANEY
