[Cite as State v. Moore, 2020-Ohio-342.]


                                       COURT OF APPEALS
                                   MUSKINGUM COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                               :       JUDGES:
                                            :       Hon. John W. Wise, P.J.
        Plaintiff-Appellee                  :       Hon. Patricia A. Delaney, J.
                                            :       Hon. Earle E. Wise, Jr., J.
-vs-                                        :
                                            :
GREGORY A. MOORE                            :       Case No. CT2019-0030
                                            :
        Defendant-Appellant                 :       OPINION




CHARACTER OF PROCEEDING:                            Appeal from the Court of Common
                                                    Pleas, Case No. CR2018-0755




JUDGMENT:                                           Affirmed




DATE OF JUDGMENT:                                   January 30, 2020




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

TAYLOR P. BENNINGTON                                JAMES A. ANZELMO
27 North Fifth Street                               446 Howland Drive
P.O. Box 189                                        Gahanna, OH 43230
Zanesville, OH 43701
Muskingum County, Case No. CT2019-0030                                                   2



Wise, Earle, J.

       {¶ 1} Defendant-Appellant, Gregory A. Moore, appeals his March 26, 2019

conviction in the Court of Common Pleas of Richland County, Ohio. Plaintiff-Appellee is

state of Ohio.

                        FACTS AND PROCEDURAL HISTORY

       {¶ 2} On December 19, 2018, the Muskingum County Grand Jury indicted

appellant on one count of domestic violence with a prior offense in violation of R.C.

2919.25(A). Said charge arose from an incident involving appellant and his girlfriend.

       {¶ 3} A jury trial commenced on February 26, 2019. The jury found appellant

guilty of the charge. By entry filed March 26, 2019, the trial court sentenced appellant to

seventeen months in prison.

       {¶ 4} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                             I

       {¶ 5} "THE TRIAL COURT IMPROPERLY REQUIRED MOORE TO PROVE

SELF-DEFENSE, IN VIOLATION OF THE SECOND, FIFTH AND FOURTEENTH

AMENDMENTS TO THE UNITES STATES CONSTITUTION."

                                            II

       {¶ 6} "MOORE'S CONVICTION IS BASED ON INSUFFICIENT EVIDENCE, IN

VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 10 & 16,

ARTICLE I OF THE OHIO CONSTITUTION."
Muskingum County, Case No. CT2019-0030                                                  3




                                             III

       {¶ 7} "MOORE'S CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND

SECTIONS 10 & 16, ARTICLE I OF THE OHIO CONSTITUTION."

                                              I

       {¶ 8} In his first assignment of error, appellant claims the trial court improperly

required him to prove self-defense. We disagree.

       {¶ 9} In support of his argument, appellant cites the new version of R.C. 2901.05

which does not shift to a defendant the burden of proving self-defense. Now, it is the

state's burden to "prove beyond a reasonable doubt that the accused person did not use

the force in self-defense, defense of another, or defense of that person's residence, as

the case may be." R.C. 2901.05(B)(1). The new version took effect on March 28, 2019,

after appellant's conviction and sentence.

       {¶ 10} "A statute is presumed to be prospective in its operation unless expressly

made retrospective." R.C. 1.48. See Van Fossen v. Babcock Wilcox Co., 36 Ohio St.3d

100, 105, 522 N.E.2d 489 (1988). The statute does not state that the new version is to

be applied retroactively.

       {¶ 11} In State v. Koch, 2d Dist. Montgomery No. 28000, 2019-Ohio-4099, our

colleagues from Second District analyzed whether R.C. 2901.05 was to be applied

retroactively, and concluded it was not.
Muskingum County, Case No. CT2019-0030                                                   4


      {¶ 12} Upon review, we find the trial court did not improperly require appellant to

prove self-defense.

      {¶ 13} Assignment of Error I is denied.

                                           II, III

      {¶ 14} In his second and third assignments of error, appellant claims his conviction

was against the sufficiency and manifest weight of the evidence. We disagree.

      {¶ 15} On review for sufficiency, a reviewing court is to examine the evidence at

trial to determine whether such evidence, if believed, would support a conviction. State

v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). "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." Jenks at paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S.

307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

      {¶ 16} On review for manifest weight, a reviewing court is to examine the entire

record, weigh the evidence and all reasonable inferences, consider the credibility of

witnesses and determine "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, 20 Ohio App.3d 172, 175, 485

N.E.2d 717 (1st Dist.1983). See also, State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d

541 (1997). 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.

      {¶ 17} Appellant was convicted on one count of domestic violence with a prior

offense in violation of R.C. 2919.25(A) which states: "No person shall knowingly cause or
Muskingum County, Case No. CT2019-0030                                                   5


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

2919.25(F)(1)(a)(i), a "family or household member" includes "[a]ny of the following who

is residing or has resided with the offender: [a] spouse, a person living as a spouse, or a

former spouse of the offender." " 'Person living as a spouse' means 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."            R.C.

2919.25(F)(2).

      {¶ 18} The responding officer, Muskingum County Sheriff's Deputy Ryan

Patterson, testified he first made contact with appellant and did not observe any injuries

to his person. T. at 170. Deputy Patterson then spoke with the complaining witness,

appellant's girlfriend. She was crying, physically upset, and shaking. T. at 171. She

stated appellant had struck her in the head and she fled to the neighbor's house. Id.

Deputy Patterson observed a large goose egg/knot on the left side of her forehead. T. at

172-174. Photographs of the complaining witness taken by Deputy Patterson during the

investigation support this observation. T. at 174; State's Exhibits 2-4. She told Deputy

Patterson she lived with appellant off and on, and she did not want to press charges. T.

at 172, 175-176. Deputy Patterson testified it was common for domestic violence victims

to not want to press charges. T. at 175.

      {¶ 19} Deputy Donnie Yester, Jr. testified he went over a domestic violence

worksheet and a uniform statement with the complaining witness and she signed both

forms. T. at 193, 195-196; State's Exhibits 5 and 6. He stated she was crying, shaking,

and nervous, and she told him she was scared and nervous of appellant. T. at 197.
Muskingum County, Case No. CT2019-0030                                                    6


Deputy Yester also observed a large bump on the left side of her forehead. T. at 198;

State's Exhibits 2-4.

       {¶ 20} The complaining witness testified she and appellant lived together on and

off for seven years. T. at 209, 224. They had a sexual relationship and shared household

expenses and duties. Id. On the day of the incident, they were living together again and

they went to a McDonalds and argued because the complaining witness "was sick and I

didn't feel well and I didn't want to eat." T. at 210-211. She was "dope sick." T. at 212.

After they returned to their home, she asked appellant for $20 so she could go buy heroin

to "get myself feeling better." T. at 213. Appellant told her she needed hit, she said "then

hit me," and he hit her multiple times with his fist in the nose, eye, forehead, and top of

the head. T. at 216-217. She did not expect appellant to hit her. T. at 216. Eventually

she was able to flee to the neighbor's house. T. at 218. She testified the next day, she

had a huge black eye, the knot on her forehead, and had bruises across her head. T. at

223. She stated she told the deputies she did not want to press charges because she

was scared of retaliation. T. at 221.

       {¶ 21} Appellant testified he and the complaining witness had an approximate

three year relationship and he had evicted her from his home in June 2018. T. at 236-

238. He denied that they shared household expenses and duties, but agreed they had a

sexual relationship. T. at 236-237, 248, 249-250. Appellant stated on the day of the

incident, December 15, 2018, the complaining witness was at his home and started

"tearing" things up. T. at 239. She wanted money and a ride to go buy heroin. Id.

Appellant complied. Id. Once they arrived at an apartment, the person she was to meet

was not there and she refused to get out of appellant's car. T. at 239-240. Appellant told
Muskingum County, Case No. CT2019-0030                                                    7


her he was going to take her to the Sheriff's Office. T. at 240. As he started to drive, the

complaining witness grabbed the steering wheel and jerked.           T. at 240, 254-255.

Appellant regained control of the steering wheel and she then grabbed his left arm. T. at

240, 255. Appellant jerked his arm away, striking her in the head. T. at 240, 255. He

denied punching her. T. at 255-256. Appellant claimed self-defense. T. at 244, 255.

       {¶ 22} We note the weight to be given to the evidence and the credibility of the

witnesses are issues for the trier of fact. State v. Jamison, 49 Ohio St.3d 182, 552 N.E.2d

180 (1990). The trier of fact "has the best opportunity to view the demeanor, attitude, and

credibility of each witness, something that does not translate well on the written page."

Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997).

       {¶ 23} Evidence was presented that the two cohabitated together and the

complaining witness sustained physical harm. Whose version of the incident to believe

was up to the jury.

       {¶ 24} Upon review, based on the testimony and exhibits presented, we find

sufficient evidence, if believed, to support the jury's verdict. We do not find any manifest

miscarriage of justice.

       {¶ 25} Assignments of Error II and III are denied.
Muskingum County, Case No. CT2019-0030                                        8


      {¶ 26} The judgment of the Court of Common Pleas of Muskingum County, Ohio

is hereby affirmed.

By Wise, Earle, J.

Wise, John, P.J. and

Delaney, J. concur.

EEW/db
