[Cite as State v. Rybak, 2011-Ohio-2070.]




                           IN THE COURT OF APPEALS OF OHIO
                              SECOND APPELLATE DISTRICT
                                 MONTGOMERY COUNTY

STATE OF OHIO                                      :
                                                   :     Appellate Case No. 23938
        Plaintiff-Appellee                         :
                                                   :     Trial Court Case No. 09-CRB-2167
v.                                                 :
                                                   :     (Criminal Appeal from Montgomery
DUSTIN RYBAK                                       :     (County Municipal Court)
                                                   :
        Defendant-Appellant                 :
                                                   :

                                                ...........

                                                OPINION

                              Rendered on the 29th day of April, 2011.

                                                ...........

ROBERT B. COUGHLIN, Atty. Reg. #0003449, 130 West Second Street, Suite 800, Dayton,
Ohio 45402
       Attorney for Plaintiff-Appellee

JESSICA MOSS, Atty. Reg. #0085437, 2233 Miamisburg Centerville Road, Dayton, Ohio
45459
      Attorney for Defendant-Appellant

                                                        .............

HALL, J.

        {¶ 1} Dustin Rybak appeals from his conviction and sentence following a bench trial

on one count of domestic violence, a first-degree misdemeanor.
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       {¶ 2} In two related assignments of error, Rybak contends his conviction is based on

legally insufficient evidence and is against the manifest weight of the evidence.

       {¶ 3} The present appeal stems from a December 2009 altercation between Rybak

and his then-girlfriend, Emily Cook. At that time, Rybak and Cook shared an apartment. After

a night out drinking, they became involved in an argument in the apartment. Cook testified

that the argument continued into their bedroom, where Rybak “ends up getting on top of [her]

and choking [her]” and hitting her in the face. According to Cook, she eventually pushed him

off. Rybak responded by “throwing her” up against a mirror and shattering it. Cook testified

that she picked up a shard of glass and cut Rybak several times in self defense. Rybak bit her

finger to force her to drop the glass.

       {¶ 4} For his part, Rybak testified and admitted that he and Cook were intoxicated on

the night in question. He also admitted arguing with Cook. According to Rybak, the argument

concerned the fact that he had been “cheating” on her. He testified that Cook started “flipping

out,” grabbed a shard of glass, and began stabbing him. Rybak denied choking or hitting her

and claimed that the mirror had broken a week or two before the argument. He testified that

after Cook began stabbing him, he threw several dining room chairs to slow her down and

went outside.

       {¶ 5} Police officer Cory Siegrist also testified at trial. He arrived at the scene with

another officer and observed broken dining room chairs and a broken bedroom mirror inside

the apartment. He also noticed that the bed covers were disheveled. Officer Siegrist

additionally saw a bite mark on Cook’s finger, noticed red marks around her neck, and

observed a “slight yellow like a bruise-type red mark” on her chin. The other officer at the
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scene testified that he did not recall seeing any injuries to Cook. He added that he was not

looking for injuries.

           {¶ 6} Based on the evidence presented, the trial court found Rybak guilty of domestic

violence, sentenced him to 180 days in jail, and imposed a $1,000 fine. The trial court

ultimately stayed execution of the sentence after Rybak had served approximately two months

in jail.

           {¶ 7} As set forth above, Rybak’s two assignments of error challenge the legal

sufficiency and manifest weight of the evidence to support his conviction. When a defendant

challenges the sufficiency of the evidence, he is arguing that the state presented inadequate

evidence on each element of the offense to sustain the verdict as a matter of law. State v.

Hawn (2000), 138 Ohio App.3d 449, 471. “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. 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 (1991), 61 Ohio St.3d 259, paragraph two of the syllabus.

           {¶ 8} Our analysis is different when reviewing a manifest-weight argument. When a

conviction is challenged on appeal as being against the weight of the evidence, an appellate

court must review the entire record, weigh the evidence and all reasonable inferences, consider

witness credibility, and determine whether, in resolving conflicts in the evidence, the trier of

fact “‘clearly lost its way and created such a manifest miscarriage of justice that the conviction
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must be reversed and a new trial ordered.’” State v. Thompkins, 78 Ohio St.3d 380, 387,

1997-Ohio-52. A judgment should be reversed as being against the manifest weight of the

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

conviction.” State v. Martin (1983), 20 Ohio App.3d 172, 175.

       {¶ 9} With the foregoing standards in mind, we conclude that Rybak’s conviction is

based on legally sufficient evidence and is not against the manifest weight of the evidence. In

support of his insufficiency argument, Rybak claims the trial court erred in finding him guilty

because Cook’s testimony was not credible. He concedes that a victim’s testimony, if

believed, is legally sufficient to support a conviction. He stresses, however, that the trial court

stated during trial that it found Cook not credible. As a result, he asserts that the record lacks

sufficient credible evidence to support his conviction.

       {¶ 10} Upon review, we find Rybak’s argument to be unpersuasive. In determining

whether the prosecution presented legally sufficient evidence, the issue is not whether Cook’s

testimony was unbelievable or whether the trial court should have believed it. Rather, the issue

is whether Cook’s testimony, if it is accepted as true, is sufficient to support his conviction.

See, e.g, State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, ¶79 (recognizing that an

evaluation of witness credibility “is not proper on review for evidentiary sufficiency”).

Rybak’s argument that the trial court erred in convicting him despite Cook’s alleged lack of

credibility really raises a manifest-weight issue. See, e.g., In re C.M., Montgomery App. No.

21363, 2006-Ohio-3741, ¶64 (noting that a manifest-weight argument obligates a reviewing

court to consider the “believability of the evidence”). Accepting Cook’s testimony as true, the

record contains legally sufficient evidence to support Rybak’s conviction. His first assignment
                                                                                             5


of error is overruled.

        {¶ 11} Rybak’s manifest-weight argument requires a more detailed analysis. After

Cook testified as to her version of events, defense counsel cross examined her about the cause

of her argument with Rybak. In response, she initially denied recalling why they had been

arguing. When asked about telling police that the argument had stemmed from Rybak’s

“cheating,” Cook denied that was the cause. When pressed further, she admitted knowing

what had caused the argument but testified that “it’s kind of embarrassing.” Defense counsel

then suggested Cook was not telling the whole truth. Shortly after her testimony, the trial court

interrupted the proceedings and expressed concern that it had not “heard anything about who

started this.” Specifically, the trial court found Cook “not very credible” because she had

“withheld testimony.” The trial court indicated concern about “how in the hell this thing

started[.]” (Trial transcript at 30).

        {¶ 12} The trial court reiterated its concern minutes later, adding:

        {¶ 13} “Here’s my problem[.] * * * [W]e’ve got two people in a building. There’s

something occurs. There’s some fight. He’s at least at some point told the officers that —that

it was—she was mad because he was sleeping around. She takes the stand. She leaves out

certain credible testimony I think pertinent to what was going on. * * * [T]he question is do

we have anything other than her statement as to what took place that proves who did what?

        {¶ 14} “Because I don’t have—I don’t find her to be a credible witness. I just want to

be honest with the prosecution.

        {¶ 15} “ * * *

        {¶ 16} “* * * [B]ut, my point is I was not really impressed with her testimony and I
                                                                                              6


didn’t find her to be a credible person because she didn’t want to tell us what was going on

because she decided she was going to leave it out because it was too embarrassing. Not too

embarrassing for her to come in here in court, drag everybody in here and have us do a trial.

But, it was too embarrassing for her to come in here and tell us what was going on with the

case.

        {¶ 17} “So, that ‘s my problem with where we’re at, at this juncture of this situation.

And, I don’t know that there’s anybody else that’s going to come in and testify as—as to what

took place. It’s a he said, she said. And, we’ve got a witness who doesn’t come to court ready

to testify is my problem.” (Id. at 33-34).

        {¶ 18} Following the trial court’s remarks, the prosecutor pointed out that the

existence of a physical altercation was undisputed. Although Cook had been evasive about

what had caused the incident, the prosecutor asserted that “the reason it occurred is not totally

determinative of whether a domestic violence happened.” (Id. at 35). The prosecutor also

pointed out that Cook’s claims about being bitten, choked, and hit were corroborated by an

officer’s testimony that he had observed a bite mark, redness around her neck, and a bruise on

her chin. The trial court responded by acknowledging that the prosecutor may have made “a

good point” and denied a Crim.R. 29 motion. (Id. at 35, 37). Rybak then took the stand. On

cross examination, the prosecutor pointed out various improbabilities and inconsistencies in

his own testimony. Thereafter, the trial court filed an entry in which it found Rybak guilty. In

its ruling, the trial court found Cook’s testimony credible and Rybak’s testimony not credible.

        {¶ 19} On appeal, Rybak contends his conviction is against the weight of the evidence

because the trial court’s journal entry, and later statements at sentencing, are inconsistent with
                                                                                         7


the remarks it made about Cook’s lack of credibility at trial. We disagree for at least three

reasons. First, a trial court speaks through its journal, not through oral remarks. State v.

Peterson (July 7, 1995), Montgomery App. No. 14733. In its written entry, the trial court

found Cook’s testimony more credible than Rybak’s. Second, the trial court orally had

expressed concerns about Cook’s credibility before hearing Rybak’s own testimony. Having

had the opportunity to review an audio-video recording of Rybak’s trial, we agree with the

trial court’s written assessment that, on the whole, Rybak’s testimony was less credible than

Cook’s. Third, the only evasiveness in Cook’s testimony concerned what had prompted her

argument with Rybak. As the prosecutor correctly noted, the cause of the argument was not

particularly important. Regardless of why it started, the critical issue was whether Cook had

acted in self defense to keep Rybak from assaulting her or whether she had attacked him with

the piece of glass. The evidence does not weigh heavily against a finding that Cook provided

the most credible testimony on that issue.

       {¶ 20} Based on the reasoning set forth above, we overrule Rybak’s two assignments

of error and affirm the judgment of the Montgomery County Court, Area Two.

                                                 .............

FAIN and BROGAN, JJ., concur.

(Hon. James A. Brogan, retired from the Second District Court of Appeals, sitting by
assignment of the Chief Justice of the Supreme Court of Ohio).

Copies mailed to:

Robert Coughlin
Jessica Moss
Hon. James D. Pergies
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