[Cite as State v. Fry, 2017-Ohio-9077.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

STATE OF OHIO                                         C.A. No.        16CA0057-M

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
BARBARA FRY                                           WADSWORTH MUNICIPAL COURT
                                                      COUNTY OF MEDINA, OHIO
        Appellant                                     CASE No.   15CRB00885

                                  DECISION AND JOURNAL ENTRY

Dated: December 18, 2017



        TEODOSIO, Judge.

        {¶1}     Barbara Fry appeals her conviction by the Wadsworth Municipal Court, finding

her guilty of the offense of domestic violence. This Court affirms.

                                                 I.

        {¶2}     In October 2015, a complaint was filed by the State of Ohio against Ms. Fry

charging her with the crime of domestic violence in violation of R.C. 2929.25(A). The alleged

incident involved an altercation between Ms. Fry and her son that took place outside of their

home on the night of October 17, 2015. A trial by jury was held in March 2016, with the jury

returning a verdict of guilty, and on April 20, 2016, the trial court filed its sentencing entry. Ms.

Fry now appeals, raising two assignments of error.
                                                2


                                                II.

                               ASSIGNMENT OF ERROR ONE

       THE EVIDENCE AT TRIAL WAS INSUFFICIENT TO SUPPORT THE
       JURY’S GUILTY VERDICT AND THE CONVICTIONS THEREFORE WERE
       AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

       {¶3}    In her first assignment of error, Ms. Fry argues the evidence presented at trial was

insufficient as a matter of law to support her conviction and that her conviction was against the

manifest weight of the evidence. We disagree.

                                   Sufficiency of the Evidence

       {¶4}    Whether the evidence in a case is legally sufficient to sustain a conviction is a

question of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). “In essence, sufficiency is

a test of adequacy.” Id. This Court reviews questions of law under a de novo standard. State v.

Trifari, 9th Dist. Medina No. 08CA0043–M, 2009–Ohio–667, ¶ 12.

       {¶5}    “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 (1991), paragraph two of the syllabus.

“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.” Id.

       {¶6}    The offense of domestic violence has been committed when a defendant

knowingly caused or attempted to cause physical harm to family or household member. R.C.

2919.25(A). As defined by R.C. 2901.01(A)(3), “‘[p]hysical harm to persons’ means any injury,

illness, or other physiological impairment, regardless of its gravity or duration.” We note that
                                                  3


the family relationship between Ms. Fry and the victim is not in question, and that the victim is

her son.

          {¶7}   The testimony of one of Ms. Fry’s neighbors indicated that on the night of the

incident, he heard a young man screaming and yelling for help, and that he therefore called the

police. He testified that when he looked out of his window, he saw a young man on the ground

being attacked, that one of the attackers was Ms. Fry, and that she did not stop hitting him until

the police arrived. The neighbor identified Ms. Fry in the courtroom. He could not identify the

victim.

          {¶8}   A friend of the victim testified that she was at Ms. Fry’s house on the night of the

incident, and that Ms. Fry and the victim started to argue. She testified that she and the victim

had gone outside and that Ms. Fry began yelling his name and subsequently ran towards them.

She further testified that Ms. Fry was on top of him and that they were fighting and screaming.

          {¶9}   The victim testified that he, a friend, and his mother were socializing in the home

where he lived with his mother on the night of the incident. He testified that he got into an

argument with his mother because she didn’t want him to leave the house to walk his friend

home. He further testified that he remembered his mother throwing him to the ground and that

she was on top of him, with her hands around his neck, choking him “very hard.”

          {¶10} Based upon the testimony as recounted above, a rational trier of fact, viewing the

evidence in a light most favorable to the prosecution, could reasonably have found, beyond a

reasonable doubt, that Ms. Fry committed the offense of domestic violence. We therefore

conclude there was sufficient evidence to support a finding that Ms. Fry committed the crime of

domestic violence.
                                                 4


                                 Manifest Weight of the Evidence

       {¶11} “In determining whether a conviction is against the manifest weight of the

evidence, an appellate court must review 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 trier of fact 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. Otten, 33 Ohio

App.3d 339, 340 (9th Dist.1986). Weight of the evidence concerns whether a greater amount of

credible evidence supports one side of the issue than supports the other. State v. Thompkins, 78

Ohio St.3d 380, 387 (1997).       Further, when reversing a conviction on the basis that the

conviction was against the manifest weight of the evidence, “the appellate court sits as a

‘thirteenth juror’ and disagrees with the factfinder’s resolution of the conflicting testimony.” Id.,

quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982). An appellate court should only exercise its

power to reverse a judgment as against the manifest weight of the evidence in exceptional cases

in which the evidence weighs heavily against the conviction. Otten at 340.

       {¶12} “A conviction is not against the manifest weight of the evidence merely because

there is conflicting evidence before the trier of fact.” State v. Haydon, 9th Dist. Summit No.

19094, 1999 Ohio App. LEXIS 6174, *19 (Dec. 22, 1999). An appellate court will not overturn

a judgment on this basis alone, and may not merely substitute its judgment for that of the

factfinder. State v. Serva, 9th Dist. Summit No. 23323, 2007–Ohio–3060, ¶ 8.

       {¶13} This Court recognizes that “the trier of fact is in the best position to determine the

credibility of witnesses and evaluate their testimony accordingly.” State v. Johnson, 9th Dist.

Summit No. 25161, 2010–Ohio–3296, ¶ 15. We will not overturn a conviction as being against

the manifest weight of the evidence simply because the trier of fact chose to believe the State’s
                                                  5


version of events over another version. State v. Tabassum, 9th Dist. Summit No. 25568, 2011–

Ohio–6790, ¶ 27.

       {¶14} In support of her argument that her conviction was against the manifest weight of

the evidence, Ms. Fry points to conflicting testimony by the neighbor as to how many people

were involved in the incident and conflicting testimony about whether the altercation broke up

before or after the police arrived. Ms. Fry contends that the friend never testified that Ms. Fry

“attacked” the victim; only that she came towards him, was on top of him, and that they were

fighting. Ms. Fry further points to testimony that the friend didn’t know how the fight started.

With regard to the victim’s testimony, Ms. Fry recounts that he had admitted to drinking and

being intoxicated, that he had issues with anxiety, that he could not remember some events from

the night in question, and that he admitted to hitting her with a closed fist.

       {¶15} Ms. Fry also directs us to the testimony of the responding police officer indicating

the victim had told him that he had struck Ms. Fry because he was concerned she was going to

become aggressive with his friend, and that after he did so, his mother grabbed him, forced him

to the ground, and began choking him. Finally, Ms. Fry points to her own testimony that her son

started to wrestle with her as she was attempting to guide him back into the house. She stated

that he had punched her in the face, but she didn’t tell the police because she wanted to protect

her son. She also testified that she never hit her son, and that she put a hand around his neck

while she was on top of him because he had grabbed her by the throat.

       {¶16} As we have noted, a conviction is not against the manifest weight of the evidence

merely because there is conflicting evidence before a jury. Haydon at *19. Having reviewed the

record, we cannot say that the jury clearly lost its way or created a manifest miscarriage of

justice in choosing the State’s version of the events. “[W]hen conflicting evidence is presented
                                                6


at trial, a conviction is not against the manifest weight of the evidence simply because the jury

believed the prosecution testimony.” State v. Gilliam, 9th Dist. Lorain No. 97CA006757, 1998

Ohio App. LEXIS 3668, *5 (Aug. 12, 1998). We conclude the conviction for domestic violence

was not against the manifest weight of the evidence.

       {¶17} Ms. Fry’s first assignment of error is overruled.

                               ASSIGNMENT OF ERROR TWO

       THE COURT TAINTED THE JURY’S DELIBERATIONS AND
       IMPROPERLY INFLUENCED THE JURY’S DELIBERATIONS WHEN IT
       GAVE AN ERRONEOUS JURY INSTRUCTION ON SELF-DEFENSE.

       {¶18} In her second assignment of error, Ms. Fry argues the court erred in the

instruction of self-defense that was given to the jury. We disagree.

       {¶19} “An appellate court reviews a trial court’s refusal to give a requested jury

instruction for abuse of discretion.” State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, ¶

240. An abuse of discretion is more than an error of judgment; it means that the trial court was

unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore, 5 Ohio St.3d

217, 219 (1983).

       {¶20} Failure to object to a jury instruction limits review of the alleged error to the plain

error standard. State v. Bushner, 9th Dist. Summit No. 26532, 2012 Ohio 5996, ¶ 13. Crim.R.

52(B) provides that “[p]lain errors or defects affecting substantial rights may be noticed although

they were not brought to the attention of the court.” “To constitute plain error, the error must be

obvious and have a substantial adverse impact on both the integrity of, and the public's

confidence in, the judicial proceedings.” State v. Hoang, 9th Dist. Medina No. 11CA0013-M,

2012-Ohio-3741, ¶ 21. This Court “must take notice of plain error only with the utmost caution,

and only then to prevent a manifest miscarriage of justice.” Id.
                                                     7


        {¶21} Ms. Fry did not object to jury instructions provided to the jury and we are

therefore limited to plain error review. As part of the instruction for self-defense, the Ohio Jury

Instructions provide that a “defendant must prove by the greater weight of the evidence that * * *

[she] was not at fault in creating the situation” and “[she] had reasonable grounds to believe and

an honest belief, even if mistaken, that [she] was in [imminent] danger of bodily harm.”

(Emphasis added.) Ohio Jury Instructions, CR Section 421.21 (Rev. Aug. 16, 2006). The

instruction given by the trial court, however, reflects a pre-2006 version of the self-defense jury

instruction, stating that a defendant must prove “[she] was not at fault in creating the situation”

and “[she had] reasonable grounds to believe and an honest belief, even though mistaken, that

[she] was in imminent danger of bodily harm * * *.” (Emphasis added.) See Ohio Jury

Instructions, Former CR Section 411.33.

        {¶22} Ms. Fry argues:

        [I]nstead of having the opportunity to decide if the defendant had a reasonable
        belief of imminent danger they were instructed that, in this case, the belief was
        mistaken. The instruction from the Judge, which the jury promised earlier they
        would follow, precluded the jury from determining for themselves whether or not
        Barbara Fry had acted in self-defense. As a result of this plain error Barbara Fry’s
        substantial rights to a fair, impartial interpretation of the law and the
        administration of justice [were] denied.

Ms. Fry’s assertion that the instruction precluded the jury from determining for themselves

whether she had acted in self-defense is incorrect. For the purposes of self-defense, it matters

not whether a defendant’s honest belief that she was in imminent danger of bodily harm was a

mistaken belief or an accurate one. Even if the jury were to presume Ms. Fry was mistaken in a

belief of imminent danger, the instruction given by the court makes clear that such a mistaken

belief shall have no bearing so long as it was an honest belief. We conclude there is no plain

error in the instruction given by the trial court.
                                                 8


       {¶23} Ms. Fry’s second assignment of error is overruled.

                                                III.

       {¶24} Ms. Fry’s assignments of error are overruled. The judgment of the Wadsworth

Municipal Court is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Wadsworth

Municipal Court, County of Medina, State of Ohio, to carry this judgment into execution. A

certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       THOMAS A. TEODOSIO
                                                       FOR THE COURT



SCHAFER, P. J.
CALLAHAN, J.
CONCUR.
                                                9


APPEARANCES:

DAVID V. GEDROCK, Attorney at Law, for Appellant.

J. R. RUSSELL, Attorney at Law, for Appellee.
