[Cite as State v. Roden, 2018-Ohio-1269.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                      JUDGES:
STATE OF OHIO                                 :       Hon. John W. Wise, P.J.
                                              :       Hon. W. Scott Gwin, J.
                         Plaintiff-Appellee   :       Hon. William B. Hoffman, J.
                                              :
-vs-                                          :
                                              :       Case No. 2017CA00150
MICHAEL JAY RODEN                             :
                                              :
                     Defendant-Appellant      :       OPINION




CHARACTER OF PROCEEDING:                          Criminal appeal from the Stark County
                                                  Court of Common Pleas, Case No.
                                                  2017CR0312

JUDGMENT:                                         Affirmed



DATE OF JUDGMENT ENTRY:                           March 30, 2018



APPEARANCES:

For Plaintiff-Appellee                            For Defendant-Appellant

JOHN D FERRERO                                    MARY G. WARLOP
BY RONALD MARK CALDWELL                           116 Cleveland Avenue N.W.
110 Central Plaza South                           500 Courtyard Centre
Canton, OH                                        Canton, OH 44702
[Cite as State v. Roden, 2018-Ohio-1269.]


Gwin, J.

        {¶1}     Appellant Michael Jay Roden [“Roden”] appeals his convictions and

sentence after a jury trial in the Stark County Court of Common Pleas.

                                            Facts and Procedural History

        {¶2}     On the night of September 5, 2016, R.P. drove in search of her former

boyfriend, Roden, who had broken up with her and was apparently seeing another

woman. The pair broke up six to twelve months earlier. (T. at 187). The two had dated

and had last lived together in 2015. T. at 185. R.P. drove to the home of Roden’s brother.

As R.P. walked up onto the front porch, Roden opened the door and punched her three

times in the right eye, knocking her off the porch.

        {¶3}     R.P. picked herself up and went to a neighbor's door crying. This neighbor

called 9-1-1, and the police quickly responded. Canton Police Officer Michael Lombardi

approached the porch with his body camera activated and found R.P. yelling and

screaming. Lombardi noticed that her right eye was badly swollen, that there was a fresh

mark on her forehead, and that R.P.'s mouth was bloody. The officer noted that R.P. was

intoxicated. Lombardi asked R.P. what had happened, and she told him that Roden came

outside as she was on the porch and hit her three times in the face, knocking her off the porch.

T. at 232. Lombardi then tended to R.P., who declined any medical treatment. Footage

from Officer Lombardi’s body camera was admitted into evidence. State’s Exhibit 1. In

the video R.P. stated that Roden punched her three times and pushed her down the stairs.

        {¶4}     The next day, R.P. went to the Aultman Hospital emergency room for

treatment. While there, R.P. told medical staff that her injuries were caused by Roden

punching her in the eye three times. T. at 203. The examination revealed that her right
Stark County, Case No. 2017CA00150                                                         3


eye socket had sustained a fracture that would require surgery. T. at 204. The prosecutor

introduced photographs of R.P. and her medical records from that night. T. 196. State’s

Exhibits 2A-2D; 3.

       {¶5}   R.P. was subpoenaed to testify before the Grand Jury. However, R.P.

testified that her injuries were caused not by Roden punching her, but by her falling off

the cement porch and striking her head. R.P. testified that she told a different story to the

grand jury because it was the truth, not because anyone had asked her or offered to pay

her to tell a different story. T. at 220-221. R.P. acknowledged that although she and Roden

had been broken up for six to twelve months, she still had feelings for him and they were

still having sexual relations. T. 217-218. R.P. testified that she was angry on the night in

question because she was hoping that they would reunite. T. 218. However, on the night

in question she learned that Roden had started seeing someone else. T. 218. R.P.

testified that after she learned of this she had become very intoxicated. T. 219. She went

over to confront Roden. T. 219. She acknowledged that she felt that that night was an

opportunity to get back at Roden. R.P. testified that that she was hurt and angry because

Roden was seeing someone else. That is why she had told the story to the police officers

and the hospital staff. T. 220.

       {¶6}   The Grand Jury returned an Indictment charging Roden with Felonious

Assault in violation of R.C. 2903.11(A)(1), a felony of the second degree and one count

of Domestic Violence in violation of R.C. 2929.25(A) a felony of the fourth degree.

       {¶7}   R.P. then repeated the story that her injuries were caused by a fall in an

affidavit that was prepared by Roden's lawyer, as well as during her trial testimony. She

claimed that she was angry with Roden and just wanted to get back at him. T. 190-192,
Stark County, Case No. 2017CA00150                                                        4


198-199, 211-215,220, 221-223. R.P. admitted that she remained close with Roden's

family, talking consistently with them. In addition, she testified that she blamed herself

for even going to where Roden was in the first place. Finally, R.P. explained at trial that

her memory of events that night did not come back to her until several days later. T. 205-

206, 209-210, 215-216, 224.

       {¶8}   The jury found Roden guilty of both counts.        The trial court thereafter

imposed a two-year prison term for both convictions, but merged the offenses for

sentencing.

                                       Assignment of Error

       {¶9}   Roden raises one assignment of error,

       {¶10} “I. THE JURY'S FINDING OF GUILT WAS NOT SUPPORTED BY

SUFFICIENT EVIDENCE AND WAS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE.”

                                          Law and Analyses.

       {¶11} In his sole assignment of error, Roden argues that there was insufficient

evidence to convict him of felonious assault and domestic violence.          Roden further

contends that the jury’s findings are against the manifest weight of the evidence.

       STANDARD OF APPELLATE REVIEW.

       1). Sufficiency of the Evidence.

       {¶12} The Sixth Amendment provides: “In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public trial, by an impartial jury....” This right, in

conjunction with the Due Process Clause, requires that each of the material elements of

a crime be proved to a jury beyond a reasonable doubt. Alleyne v. United States, 570
Stark County, Case No. 2017CA00150                                                       5

U.S. __, 133 S.Ct. 2151, 2156, 186 L.Ed.2d 314 (2013); Hurst v. Florida, 136 S.Ct. 616,

621, 193 L.Ed.2d 504 (2016). The test for the sufficiency of the evidence involves a

question of law for resolution by the appellate court. State v. Walker, 150 Ohio St.3d 409,

2016-Ohio-8295, 82 N.E.3d 1124, ¶30. “This naturally entails a review of the elements

of the charged offense and a review of the state's evidence.” State v. Richardson, 150

Ohio St.3d 554, 2016-Ohio-8448, 84 N.E.3d 993, ¶13.

      {¶13} When reviewing the sufficiency of the evidence, an appellate court does not

ask whether the evidence should be believed. State v. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492 (1991), paragraph two of the syllabus: Walker, at ¶30. “The relevant inquiry

is whether, after viewing the evidence in the 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.” Jenks at paragraph two of the syllabus. State v. Poutney, Oh. Sup.

Ct. No. 2016-1255, 2018-Ohio-22, 2018 WL 328882 (Jan. 4, 2018), ¶19. Thus, “on review

for evidentiary sufficiency we do not second-guess the jury's credibility determinations;

rather, we ask whether, ‘if believed, [the evidence] would convince the average mind of

the defendant's guilt beyond a reasonable doubt.’” State v. Murphy, 91 Ohio St.3d 516,

543, 747 N.E.2d 765 (2001), quoting Jenks at paragraph two of the syllabus (emphasis

added); Walker at ¶31. We will not “disturb a verdict on appeal on sufficiency grounds

unless ‘reasonable minds could not reach the conclusion reached by the trier-of-fact.’”

State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 94, quoting State

v. Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997); State v. Montgomery, 148

Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180, ¶74.

      ISSUE FOR APPEAL
Stark County, Case No. 2017CA00150                                                       6


      {¶14} A. Whether, after viewing the evidence in the light most favorable to the

prosecution, the evidence, “if believed, would convince the average mind of the

defendant's guilt on each element of the crimes beyond a reasonable doubt.”

      {¶15} Roden was convicted of felonious assault and domestic violence. R.C.

2903.11(A) defines felonious assault as, "No person shall knowingly… (1) Cause serious

physical harm to another or to another's unborn.” Under R.C. 2901.01(A)(5), “serious

physical harm to persons” means:

             (a) Any mental illness or condition of such gravity as would normally

      require hospitalization or prolonged psychiatric treatment;

             (b) Any physical harm that carries a substantial risk of death;

             (c) Any physical harm that involves some permanent incapacity,

      whether partial or total, or that involves some temporary, substantial

      incapacity;

             (d) Any physical harm that involves some permanent disfigurement

      or that involves some temporary, serious disfigurement;

             (e) Any physical harm that involves acute pain of such duration as to

      result in substantial suffering or that involves any degree of prolonged or

      intractable pain.

      {¶16} R.C. 2919.25 (A), domestic violence states: "No person shall knowingly

cause or attempt to cause physical harm to a family or household member."

      {¶17} In the case at bar, R.P. testified that she received a fracture to her eye

socket that would necessitate surgery to repair. Court’s have noted that, “[t]he degree of

harm that rises to level of ‘serious’ physical harm is not an exact science” given that the
Stark County, Case No. 2017CA00150                                                        7

definition uses terms such as “substantial,” “temporary,” “acute” and “prolonged.” State

v. Miller, 8th Dist. Cuyahoga No. 98574, 2013–Ohio–1651, ¶18, quoting State v. Irwin,

7th Dist. Mahoning No. 06MA20, 2007–Ohio–4996, ¶ 37; Accord, State v. Clark, 8th Dist.

Cuyahoga No. 104076, 2016-Ohio-5143, ¶ 20 . The extent or degree of a victim’s injuries

is “normally a matter of the weight rather than the sufficiency of the evidence.” Irwin at ¶

37, citing State v. Salemi, 8th Dist. Cuyahoga No. 81091, 2002–Ohio–7064, ¶ 34.

Fractures to the facial bones requiring surgery are sufficient to establish both “serious

physical harm” and “physical harm.” See, State v. Roy, 10th Dist. Franklin No. 14AP 986,

2015-Ohio-4959, ¶25; State v. Chambers, 8th Dist. Cuyahoga No. 99864, 2014-Ohio-

390, ¶24.

       {¶18} Viewing the evidence in the case at bar in a light most favorable to the

prosecution, we conclude that a reasonable person could have found beyond a

reasonable doubt that Roden knowingly caused “serious harm” and “physical harm” to

R.P.

       {¶19} The term “family or household member”' is defined in R.C. 21919.25 (F)

which states, in pertinent part,

       (1) The term "family or household member" means any of the following:

       (a) Any of the following who is residing or has resided with the offender:

       (i)    A spouse, a person living as a spouse, or a former spouse of the

       offender;

       (ii)   A parent, a foster parent, or a child of the offender or another person

       related by consanguinity or affinity to the offender;
Stark County, Case No. 2017CA00150                                                        8


       (iii)   A parent or a child of a spouse, person living as a spouse, or former

       spouse of the offender, or another person related by consanguinity or

       affinity to a spouse, person living as a spouse, or former spouse of the

       offender.

       (iv)    The natural parent of any child of whom the offender is the other

       natural parent or is the putative other natural parent.

       {¶20} R.C. 2919.25 (F)(2) defines a "person living as a spouse" as: "a person who

is living or has lived with the offender in a common law marital relationship, who otherwise

is cohabiting with the offender, or who otherwise has cohabited with the offender within

five years prior to the date of the alleged commission of the act in question."

       {¶21} In the case at bar, the incident occurred on September 5, 2016. Evidence

was unrefuted that the couple resided together in 2015.

       {¶22} Viewing the evidence in the case at bar in a light most favorable to the

prosecution, we conclude that a reasonable person could have found beyond a

reasonable doubt that R.P. was a person who had cohabited with Roden within five years

prior to the date of the alleged commission of the crimes of felonious assault and domestic

violence.

       {¶23} We hold therefore that the state met its burden of production

regarding felonious assault and domestic violence and, accordingly, there was

sufficient evidence to support Roden’s convictions.

       2). Manifest weight of the evidence.

       {¶24} As to the weight of the evidence, the issue is whether the jury created a

manifest miscarriage of justice in resolving conflicting evidence, even though the
Stark County, Case No. 2017CA00150                                                       9

evidence of guilt was legally sufficient. State v. Thompkins, 78 Ohio St.3d 380, 386–387,

678 N.E.2d 541 (1997), superseded by constitutional amendment on other grounds as

stated by State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668, 1997–Ohio–355; State v.

Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001).

             “[I]n determining whether the judgment below is manifestly against

      the weight of the evidence, every reasonable intendment and every

      reasonable presumption must be made in favor of the judgment and the

      finding of facts.

      ***

              “If the evidence is susceptible of more than one construction, the

      reviewing court is bound to give it that interpretation which is consistent with

      the verdict and judgment, most favorable to sustaining the verdict and

      judgment.”

Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.

3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).

      {¶25} The reviewing court must bear in mind, however, that credibility generally is

an issue for the trier of fact to resolve. State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d

904 (2001); State v. Murphy, 4th Dist. Ross No. 07CA2953, 2008–Ohio–1744, ¶ 31.

Because the trier of fact sees and hears the witnesses and is particularly competent to

decide whether, and to what extent, to credit the testimony of particular witnesses, the

appellate court must afford substantial deference to its determinations of credibility.

Barberton v. Jenney, 126 Ohio St.3d 5, 2010–Ohio–2420, 929 N.E.2d 1047, ¶ 20. In

other words, “[w]hen there exist two fairly reasonable views of the evidence or two
Stark County, Case No. 2017CA00150                                                           10


conflicting versions of events, neither of which is unbelievable, it is not our province to

choose which one we believe.” State v. Dyke, 7th Dist. Mahoning No. 99 CA 149, 2002–

Ohio–1152, at ¶ 13, citing State v. Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d 125(7th

Dist. 1999). Thus, an appellate court will leave the issues of weight and credibility of the

evidence to the fact finder, as long as a rational basis exists in the record for its decision.

State v. Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012–Ohio–1282, ¶ 24.

       {¶26} Once the reviewing court finishes its examination, an appellate court may

not merely substitute its view for that of the jury, but must find that “ ‘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. Thompkins, supra, 78 Ohio St.3d at 387,

quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist.

1983). Accordingly, reversal on manifest weight grounds is reserved for “the exceptional

case in which the evidence weighs heavily against the conviction.” Id.

       ISSUE FOR APPEAL.

       {¶27} B. Whether the jury court clearly lost their way and created such a manifest

miscarriage of justice that the convictions must be reversed and a new trial ordered.

       {¶28} In the case at bar, Roden’s defense centered upon the credibility of R.P.

Roden argues that the statements made by R.P. days after the incident are credible;

however R.P. statement’s to Officer Lombardi and to the hospital personnel are not

credible.

       {¶29} The jury as the trier of fact was free to accept or reject any and all of the

evidence offered by the parties and assess the witness’s credibility. “While the trier of

fact may take note of the inconsistencies and resolve or discount them accordingly * * *
Stark County, Case No. 2017CA00150                                                     11


such inconsistencies do not render defendant’s conviction against the manifest weight or

sufficiency of the evidence.” State v. Craig, 10th Dist. Franklin No. 99AP–739, 1999 WL

29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09–1236, 1996

WL 284714 (May 28, 1996). Indeed, the trier of fact need not believe all of a witness’

testimony, but may accept only portions of it as true. State v. Raver, 10th Dist. Franklin

No. 02AP–604, 2003–Ohio–958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197

N.E.2d 548 (1964); State v. Burke, 10th Dist. Franklin No. 02AP–1238, 2003–Ohio–2889,

citing State v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992). Although

the evidence may have been circumstantial, we note that circumstantial evidence has the

same probative value as direct evidence. State v. Jenks, 61 Ohio St.3d 259, 272, 574

N.E.2d 492 (1991), paragraph one of the syllabus, superseded by State constitutional

amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n.4,

684 N.E.2d 668 (1997).

       {¶30} In the case at bar, the jury heard the witnesses, viewed the evidence and

heard Roden’s attorney’s arguments and explanations about Roden and R.P.’s actions.

The jury also viewed a video that showed in real time R.P.’s statements, demeanor and

injuries. Thus, a rational basis exists in the record for the jury’s decision.

       {¶31} We find that this is not an “‘exceptional case in which the evidence weighs

heavily against the conviction.’” State v. Thompkins, 78 Ohio St.3d 380, 386–387, 678

N.E.2d 541 (1997), quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. The jury

neither lost his way nor created a miscarriage of justice in convicting Roden of felonious

assault and domestic violence.
Stark County, Case No. 2017CA00150                                                       12


       {¶32} Based upon the foregoing and the entire record in this matter we find

Roden’s convictions are not against the sufficiency or the manifest weight of the evidence.

To the contrary, the jury appears to have fairly and impartially decided the matters before

them. The jury heard the witnesses, evaluated the evidence, and was convinced of

Roden’s guilt.

       {¶33} Finally, upon careful consideration of the record in its entirety, we find that

there is substantial evidence presented which if believed, proves all the elements of the

crimes for which Roden was convicted.

       CONCLUSION.

       {¶34} Roden’s sole assignment of error is overruled.

       {¶35} The judgment of the Stark County Court of Common Pleas is affirmed.

By Gwin, J.,

Wise, P.J., and

Hoffman, J., concur
