[Cite as State v. Dalton, 2012-Ohio-3716.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                        :

        Plaintiff-Appellee                           :        C.A. CASE NO.    24670

v.                                                   :        T.C. NO.   10CRB908

CYNTHIA E. DALTON                                    :        (Criminal appeal from
                                                               Municipal Court)
        Defendant-Appellant                          :

                                                     :

                                             ..........

                                             OPINION

                         Rendered on the      17th   day of     August     , 2012.

                                             ..........

THOMAS SCHIFF, Atty. Reg. No. 0039881, Prosecuting Attorney, 500 Lincoln Park Blvd.,
Suite 216, Kettering, Ohio 45429
       Attorney for Plaintiff-Appellee

J.C. SHEW, Atty. Reg. No. 0001688 and MATTHEW T. DIXON, Atty. Reg. No. 0084484,
46 E. Market Street, Germantown, Ohio 45327
       Attorneys for Defendant-Appellant

                                             ..........

FROELICH, J.

        {¶ 1}      Cynthia E. Dalton was convicted of assault, a first degree misdemeanor,
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after a bench trial in the Miamisburg Municipal Court. The trial court sentenced her to 180

days in jail, which was suspended on the condition that she be placed on house arrest with

work release. Dalton was barred from Laff’s Bar and Grille (the location of the assault) for

one year and was placed on one year of probation, during which she was to have no contact

with the complainant.

       {¶ 2}     Dalton appeals from her conviction, claiming that her conviction was based

on insufficient evidence and was against the manifest weight of the evidence.

       {¶ 3}     An argument based on the sufficiency of the evidence challenges whether

the State presented adequate evidence on each element of the offense to allow the case to go

to the jury or to sustain the verdict as a matter of law. State v. Thompkins, 78 Ohio St.3d

380, 386, 678 N.E.2d 541 (1999). “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.” State v. Jenks, 61 Ohio

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

       {¶ 4}     In contrast, “a weight of the evidence argument challenges the believability

of the evidence and asks which of the competing inferences suggested by the evidence is

more believable or persuasive.”       State v. Wilson, 2d Dist. Montgomery No. 22581,

2009-Ohio-525, ¶ 12. When evaluating whether a conviction is contrary to the manifest

weight of the evidence, the 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
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manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.”

 State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v.

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983); State v. Elmore, 111

Ohio St.3d 515, 2006-Ohio-6207, 857 N.E.2d 547, ¶ 44.

       {¶ 5}       Because the trier of fact sees and hears the witnesses at trial, we must defer

to the factfinder’s decisions whether, and to what extent, to credit the testimony of particular

witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684, *4 (Aug.

22, 1997). However, we may determine which of several competing inferences suggested

by the evidence should be preferred. Id.

       {¶ 6}       The fact that the evidence is subject to different interpretations does not

render the conviction against the manifest weight of the evidence. Wilson at ¶ 14. A

judgment of conviction should be reversed as being against the manifest weight of the

evidence only in exceptional circumstances. Martin at 175.

       {¶ 7}       Ellen and Mike Sizemore and Germantown Police Officer John Rieder

testified for the State in its case-in-chief. Their testimony established the following facts:

       {¶ 8}       At approximately 11:30 p.m. on February 27, 2010, Ellen and Mike

Sizemore1 met a neighbor at Laff’s Bar and Grille in Germantown. The three sat at the bar,

near the middle. The neighbor left, and around midnight, Chaz Sizemore, Ellen’s biological

son and Mike’s adopted son, arrived and sat with down with them. Chaz’s biological father

is Rick Boyer.

       {¶ 9}       Dalton, who was Boyer’s sister and Chaz’s biological aunt, approached


          1
           For sake of clarity, we will refer to the Sizemores by their first names.
                                                                                          4

Chaz and began to talk to him at the bar. When Ellen asked Dalton to leave them alone,

Dalton got “real loud with” Ellen and called her “a bitch” and “piece of shit.” Dalton

complained that Ellen had told Chaz untrue stories about her (Dalton) and Boyer. Mike

described Dalton as “very belligerent, slurring, seemed to be very intoxicated.” Ellen told

Mike, “Let’s leave,” and Dalton continued to curse at them as they paid their tab. Tracy

Lindsey, who was Boyer’s girlfriend and was sitting at the end of the bar, also asked the

Sizemores to leave.

        {¶ 10}    When the Sizemores neared the front door, Dalton grabbed Ellen’s hair and

pulled it back. In doing so, Dalton ripped Ellen’s earring out of her right ear. Mike pushed

Dalton away and the couple went outside.

        {¶ 11} While the Sizemores stood outside, Dalton came out of Laff’s, went around

Mike, and attacked the left side of Ellen’s face. Photographs of Ellen’s face showed

scratches above and below her left eye; Ellen also testified that the vision in her left eye

worsened from 20/40 to 20/400 as a result of Dalton’s actions. Mike pushed Dalton away

again. At that point, another woman, Courtney Morales, ran up behind Ellen and grabbed

her hair. Michael pushed Courtney backward, and Dalton tried to hit Ellen again. Dalton

was yelling, “I will kill you, bitch.”

        {¶ 12}    Chaz came over and yelled at Dalton and Morales to get off of his mother.

Mike was then able to get Ellen to their car. Ellen told Mike that Dalton had taken her

purse, and Mike went into Laff’s to try to find it. Ellen then saw a police cruiser, and she

flagged down Officer Rieder and Detective Kirk Bell. Officer Rieder described Ellen as

“very animated and upset.”
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       {¶ 13}    Ellen told Officer Rieder that she wanted to press charges against Dalton

for assault, and Rieder could see that Ellen had injuries to her left cheek. Rieder observed

Dalton walking very angrily toward Ellen, yelling insults. Rieder ordered Dalton several

times to stop and stay on the sidewalk, however Dalton kept trying to get around the officer

and get to Ellen. Detective Bell testified in rebuttal that Dalton was “wild” and “cursing.”

       {¶ 14}    Rieder eventually tried to arrest Dalton, but Dalton “would just not listen to

me [Rieder] at all.” Dalton was eventually taken to the police station. Officer Rieder

testified that Dalton had slurred speech, bloodshot eyes, and a strong odor of an alcoholic

beverage on her breath; he believed that she was heavily intoxicated.

       {¶ 15}    During his rebuttal testimony, Rieder testified that Dalton was

uncooperative when the officer tried to take her fingerprints and mug shot at the police

station. He stated that Dalton refused to allow him to roll her fingerprints and intentionally

smeared the ink around the desk. Dalton also refused to open her eyes and look at the

camera for her mug shot.

       {¶ 16}    Dalton testified on her own behalf and offered the testimony of six

additional witnesses in her defense. According to Dalton, on February 27, 2010, she met

several members of her family for dinner at El Rancho Grande to celebrate Boyer’s birthday,

and then the group went to Eagles to hear a band and finally to Laff’s Bar and Grille,

arriving at the bar around 12:30 a.m. Dalton stated that she drank two rum and cokes at

Eagles, but did not otherwise drink that night; she denied that she was intoxicated.

       {¶ 17} After Dalton’s nieces (Chaz’s biological sisters) pointed out that Chaz was

there, Dalton went over to the bar to say hello. Ellen came up and said to Mike, “I guess we
                                                                                            6

will have to leave.” Dalton responded that they should not leave on her account. Ellen

then told Dalton to leave her family alone. The women began to argue about Dalton’s

talking with Chaz, and the bartender told them to “shut up or get out.” After the bartender

repeated that they needed to leave, the Sizemores left and, while at the door, Ellen

challenged Dalton to come outside. Lindsey told Dalton that she needed to leave, too, and

Dalton told her that she was getting her coat first. Dalton denied that there was any physical

contact between Ellen and her while they were inside Laff’s.

       {¶ 18} Dalton testified that Ellen was yelling at Lindsey when she got outside.

Dalton told Ellen that she was not the only one who had been kicked out, and Ellen

responded that Dalton was “always causing f***ing trouble.” The women began to argue

again. When someone told Dalton that she needed to “shut up,” Dalton turned and Ellen

grabbed Dalton’s hair. Dalton tried to grabbed Ellen’s hand and press it toward her head in

order to protect her (Dalton’s) hair. As she yelled at Ellen to get off, Dalton was hit by

Mike and shoved into the street; Ellen landed on her hands and knees. Someone helped

Dalton up and walked her back into Laff’s.

       {¶ 19} While Dalton sat at an empty table, someone came into the bar and reported

that Ellen was going to call the police because Dalton had stolen her purse. Dalton went

back outside and heard Ellen screaming and yelling. When Ellen saw her, Ellen started

yelling at Dalton, “Where’s my f***ing purse?” Dalton repeatedly told Ellen that she did

not have her purse, and Dalton began to walk away toward El Rancho Grande, which was

next door. At that point, the police pulled up, and Ellen told the officers that Dalton had

stolen her purse and hit her.
                                                                                            7

       {¶ 20} Dalton testified that she kept trying to talk to Detective Bell, who was near

Ellen, so that she could tell him what had happened. Dalton denied that she was trying to

assault Ellen when she failed to follow Officer Rieder’s instruction.

       {¶ 21} Several of Dalton’s witnesses corroborated that Ellen and Dalton had argued

inside Laff’s and that they had been asked to leave by Sierra Wright (the bartender) and

again by Lindsey, who was a part-time employee at Laff’s (as well as Boyer’s girlfriend).

Wright, Lindsey, and Audrey Blankenship testified that they did not see a physical

altercation between Ellen and Dalton inside Laff’s. However, Morales, whose mother was a

friend of Dalton, testified that Dalton had grabbed Ellen from behind as they were leaving

Laff’s and that she (Morales) had tried to stop Dalton.

       {¶ 22} Several witnesses also testified that Ellen and Dalton had argued outside of

Laff’s and that there was a physical altercation between them. Defense witnesses described

Ellen as yelling and screaming, and Lindsay and Morales both indicated that Dalton had

been shoved onto her hands and knees. Morales further testified that, after she saw Dalton

get thrown to the ground, she ran up and hit Ellen in the back of her head; Morales later pled

no contest to assault based on this incident. Morales denied causing Ellen’s injuries.

       {¶ 23} In its May 6, 2011 judgment entry, the trial court made the following

findings:

               The State of Ohio presented Officers Bell and Reeder [sic]. Both

       testified they arrived on the scene at Laff’s Bar and Grille pursuant to

       dispatch. When they arrived they saw the Defendant, Cynthia Dalton, was

       attempting to attack the victim in this case, Ellen Sizemore. The officers
                                                                                   8

testified that the Defendant had to be restrained on two occasions from

assaulting the victim. The officers further testified that in their opinion, the

Defendant was highly intoxicated. She had bloodshot eyes, slurred speech,

she was unsteady on her feet, called the officers names and created problems

at the police department by not cooperating and by smearing ink on the desk.

The officers further testified that she was very angry and was yelling

obscenities.

       The Court finds that Officer Bell’s and Officer Reeder’s testimony

were credible with respect to the conditions and actions of the Defendant

once they arrived.

       The victim, Ellen Sizemore, testified that she had been assaulted by

the Defendant, Cynthia Dalton, and that she had a permanent eye injury.

However, the victim in this case presented no medical testimony or medical

evidence that she had a permanent eye injury and therefore the Court cannot

determine the severity of the injuries that were actually caused by the incident

that arose at Laff’s Bar and Grille. However, the victim was injured.

       The Court finds the basic testimony of Ellen Sizemore to be credible

although it must be said that it is clear that both the Defendant and Mrs.

Sizemore were egging each other on while in the bar and were in a slight

verbal confrontation before Ellen Sizemore attempted to leave the bar.

       Ellen Sizemore and her husband were ordered to leave the bar by one

of the bartenders. The most credible witness in this case was Cindy Morales
                                                                                              9

       who had previously pled guilty to Assault for striking Ellen Sizemore outside

       the bar. Ms. Morales, who was a witness for the Defendant, testified that

       there was a verbal altercation inside and when Ellen Sizemore attempted to

       leave through the door, the Defendant, Cythnia Dalton, attempted to grab

       hold of Mrs. Dalton and held her back the best she could but lost her grip.

       When she lost her grip, the Defendant reached Ellen Sizemore and a fight

       began.

                It is clear from the testimony that the Defendant precipitated an

       assault upon the victim which caused physical harm to Ellen Sizemore. The

       State has proven the assault beyond a reasonable doubt. Had the Defendant

       not gone after the victim as she was leaving, there never would have been a

       fight and there would have been no injuries to the victim. The Defendant is

       found guilty of Assault.

       {¶ 24}    Upon review of the record, the State presented sufficient evidence to

support Dalton’s conviction. The Sizemores’ testimony, if believed, established that Dalton

grabbed Ellen from behind and tore out Ellen’s earring as the Sizemores were trying to leave

the bar, causing injury to Ellen’s right ear. Their testimony, if believed, also supported a

reasonable conclusion that Dalton again attacked Ellen outside of Laff’s, causing injuries to

Ellen’s left eye and the left side of her face. The injuries to Ellen’s right ear and left cheek

were corroborated by photographs.       Dalton’s conviction for assault was not based on

insufficient evidence.

       {¶ 25} Dalton also claims that her conviction was against the manifest weight of the
                                                                                             10

evidence. The trial court was presented with two conflicting versions of events – one which

identified Dalton as the aggressor and one which identified Ellen as such. The Sizemores’

testimony that Dalton had attacked Ellen from behind as they were leaving Laff’s was

corroborated by Morales. On the other hand, other defense witnesses testified that there

was no physical altercation inside Laff’s or that Dalton was not near the Sizemores as they

left. Similarly, there was conflicting testimony as to which individual initiated the fight

outside, whether Dalton had remained outside after being asked by Wright and Lindsey to

leave Laff’s Bar and Grille, and the nature of Dalton’s behavior before and after the police

arrived. As stated above, it was the province of the trial court, as the trier of fact, to weigh

the evidence and assess the credibility of the witnesses. Although the trial court could have

reasonably believed Dalton’s version of events, the trial court’s decision to credit testimony

that Dalton had attacked Ellen and started the fight, which caused Ellen’s injuries, was not

against the manifest weight of the evidence.

       {¶ 26} Dalton’s assignments of error are overruled.

       {¶ 27} The trial court’s judgment will be affirmed.

                                         ..........

FAIN, J. and DONOVAN, J., concur.

Copies mailed to:

Thomas Schiff
J.C. Shew
Matthew T. Dixon
Hon. Robert W. Rettich, III
Hon. Rupert E. Ruppert, Visiting Judge
