[Cite as State v. Browning, 2013-Ohio-2787.]


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

STATE OF OHIO                                       C.A. No.       26687

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
KENNETH R. BROWNING                                 COURT OF COMMON PLEAS
                                                    COUNTY OF SUMMIT, OHIO
        Appellant                                   CASE No.   CR 12 05 1525

                                 DECISION AND JOURNAL ENTRY

Dated: June 28, 2013



        WHITMORE, Judge.

        {¶1}    Defendant-Appellant, Kenneth Browning, appeals from his conviction in the

Summit County Court of Common Pleas. This Court affirms in part and reverses in part.

                                                I

        {¶2}    Shortly after 10:30 p.m. on March 23, 2002, the police responded to a call that a

man was attacking a woman on South Portage Path. The police identified the man as Browning

and the victim as his fiancée, Lisa Collins. Two eyewitnesses later testified that they observed

Browning assault Collins. Specifically, one saw Browning hitting Collins with his fists and the

other saw Browning knock Collins to the ground and kick her. Although Collins initially told

the police that Browning had thrown her to the ground and had kicked her, she later recanted and

insisted that Browning never hurt her.

        {¶3}    A grand jury indicted Browning on one count of domestic violence, in violation of

R.C. 2919.25(A). The matter proceeded to a jury trial, and the jury found Browning guilty of
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domestic violence. Additionally, the jury found that Browning previously had been convicted of

domestic violence. The court sentenced Browning to 18 months in prison.

       {¶4}    Browning now appeals and raises five assignments of error for our review. For

ease of analysis, we consolidate several of the assignments of error.

                                                II

                                Assignment of Error Number One

       THE TRIAL COURT ERRED BY DENYING MR. BROWNING’S CRIMINAL
       RULE 29 MOTION FOR ACQUITTAL AS THE STATE FAILED TO
       PRESENT SUFFICIENT EVIDENCE TO SUSTAIN THE CONVICTIONS.

       {¶5}    In his first assignment of error, Browning argues that the trial court erred by

denying his Crim.R. 29 motion because the State failed to produce sufficient evidence in support

of his conviction. We disagree.

       {¶6}    “We review a denial of a defendant’s Crim.R. 29 motion for acquittal by

assessing the sufficiency of the State’s evidence.” State v. Slevin, 9th Dist. No. 25956, 2012-

Ohio-2043, ¶ 15. In order to determine whether the evidence before the trial court was sufficient

to sustain a conviction, this Court must review the evidence in a light most favorable to the

prosecution. State v. Jenks, 61 Ohio St.3d 259, 273 (1991).

       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.

Id. at paragraph two of the syllabus; see also State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).

“In essence, sufficiency is a test of adequacy.” Thompkins at 386.
                                                3


       {¶7}    “No person shall knowingly cause or attempt to cause physical harm to a family

or household member.” R.C. 2919.25(A). “A person acts knowingly, regardless of his purpose,

when he is aware that his conduct will probably cause a certain result or will probably be of a

certain nature.   A person has knowledge of circumstances when he is aware that such

circumstances probably exist.” R.C. 2901.22(B). Whoever commits the foregoing offense is

guilty of domestic violence. R.C. 2919.25(D)(1).

       {¶8}    Browning argues that his conviction is based on insufficient evidence because

there was no evidence that he knowingly caused physical harm to Collins. Browning’s argument

largely sounds in weight, as he challenges the evidence based on the reliability and credibility of

the witnesses. See State v. Johnson, 9th Dist. No. 06CA008911, 2007-Ohio-1480, ¶ 4-10

(discussing the differences between a sufficiency and a manifest weight challenge).

Nevertheless, we briefly address Browning’s assertion that his conviction is based on insufficient

evidence.

       {¶9}    Two separate eyewitnesses testified at trial. Delissa Fleetwood testified that she

and her husband were walking their dog when she observed a man hitting a woman with his fists

while the woman “was saying she was sorry and hollering and screaming.” Fleetwood testified

that the man continued to hit the woman until her husband pulled the man away. Fleetwood

identified Browning as the man she saw attacking the woman.

       {¶10} Sandra Safko testified that she was driving home from work when a woman ran

toward her truck screaming for help. Safko stopped her truck and then saw a man grab the

woman, knock her to the ground, and drag her across the street. Safko heard the man screaming

at the woman and saw the man kick her. Safko then drove to a nearby parking lot and called

911. Safko testified that she drove back to the scene of the attack while on the phone with 911
                                                 4


and that the man continued to assault the woman until another man pulled him off of her. Safko

identified Browning as the man she saw attacking the woman.

       {¶11} Officer Patrick Didyk testified that he responded to a 911 call about an attack in

progress on South Portage Path. Another officer was already on scene when Officer Didyk

arrived, but Officer Didyk testified that he spoke directly with the victim, Lisa Collins. Officer

Didyk described Collins as “visibly upset” and crying when he spoke with her. Collins told

Officer Didyk that Browning, her live-in boyfriend, had thrown her to the ground and had kicked

her in the head. Officer Didyk testified that he observed a small amount of swelling to Collins’

head as well as a scrape to her elbow.

       {¶12} Viewing the evidence in a light most favorable to the prosecution, a rational trier

of fact could have concluded that the State set forth sufficient evidence to prove that Browning

committed domestic violence against Collins. Two separate eyewitnesses testified that they saw

Browning either kick or punch Collins after knocking her to the ground. Moreover, Officer

Didyk testified that Collins admitted to him that Browning had thrown her to the ground and

kicked her. He also observed several injuries on Collins. Browning’s argument that there is

insufficient evidence that he knowingly caused physical harm to Collins lacks merit.

Consequently, his first assignment of error is overruled.

                                Assignment of Error Number Two

       THE JURY VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE
       EVIDENCE.

       {¶13} In his second assignment of error, Browning argues that his conviction is against

the manifest weight of the evidence. We disagree.

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

evidence an appellate court:
                                                 5


       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). A weight of the evidence challenge

indicates that a greater amount of credible evidence supports one side of the issue than supports

the other. Thompkins, 78 Ohio St.3d at 387. Further, when reversing a conviction on the basis

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

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

Therefore, this Court’s “discretionary power to grant a new trial should be exercised only in the

exceptional case in which the evidence weighs heavily against the conviction.” State v. Martin,

20 Ohio App.3d 172, 175 (1st Dist.1983). See also Otten, 33 Ohio App.3d at 340.

       {¶15} Browning argues that his conviction is against the manifest weight of the evidence

because the State’s witnesses offered inconsistent and unreliable testimony. He further argues

that his conviction is against the manifest weight of the evidence because Collins testified that he

never harmed her.

       {¶16} As to Fleetwood, Browning argues that she was not a reliable witness because,

unlike her husband, she stayed some distance back from Browning and Collins and might have

misinterpreted what she saw. He further argues that she gave inconsistent testimony because at

one point she claimed she was near her husband the entire time, but then later she stated that she

left the area for a while to take their dog back home. As to Safko, Fleetwood argues that she was

not a reliable witness because she admitted that she was very tired when the incident occurred, it

was dark outside, and that at certain points she might have been viewing the incident from up to

three blocks away. He further argues that she gave inconsistent testimony because: (1) while she
                                                6


described the clothing Collins was wearing that evening at trial, she admitted that she had not

been able to describe the clothing on the 911 call; and (2) while she claimed that Collins tried to

approach her at the scene to thank her for helping, Collins adamantly denied ever trying to speak

with Safko.

       {¶17} Collins testified that Browning was her fiancée and that the two still planned to

marry. According to Collins, she and Browning were on their way home from a bar on the night

of the incident and were “playing and horsing around” when she tripped on the sidewalk and fell

down. Collins insisted that Browning never harmed her and that all of the State’s witnesses were

lying. Indeed, Collins described herself as the aggressor in her and Browning’s relationship and

testified that she previously had a protection order issued against her because she had stabbed

Browning in the face with a screwdriver. Collins denied ever telling the police that Browning

had harmed her and insisted that the police frequently harassed her and Browning. According to

Collins, the entire incident that occurred amounted to a misunderstanding.

       {¶18} The inconsistencies that Browning identifies in the testimonies of the State’s

witnesses are minor, at best. Moreover, credibility determinations are primarily for the trier of

fact. State v. Wingate, 9th Dist. No. 26433, 2013-Ohio-2079, ¶ 18, quoting State v. Shue, 97

Ohio App.3d 459, 466 (9th Dist.1994). “[T]his Court will not overturn [a jury’s] verdict on a

manifest weight of the evidence challenge simply because the [jury] chose to believe certain

witnesses’ testimony over the testimony of others.” State v. Ross, 9th Dist. No. 12CA0007,

2013-Ohio-522, ¶ 16. The jury heard two different versions of the events here; one from the

independent witnesses the State produced and one from Collins. Collins admitted that she was in

love with Browning and still planned to marry him. Consequently, the jury could have chosen to

believe that Collins refused to tell the truth about the attack in order to protect Browning.
                                                7


Having reviewed the entire record, this is not the exceptional case where the jury lost its way by

convicting Browning. Browning’s argument that his conviction is against the manifest weight of

the evidence lacks merit. Consequently, his second assignment of error is overruled.

                              Assignment of Error Number Three

       THE TRIAL COURT ERRED IN PERMITTING THE STATE TO
       INTRODUCE OUT-OF-COURT STATEMENTS OF AN ALLEGED
       EYEWITNESS THROUGH THE PLAYING OF A 911 CALL WHICH DID
       NOT MEET THE ADMISSIBILITY REQUIREMENTS OF EVIDENCE RULE
       804.

                               Assignment of Error Number Four

       THE TRIAL COURT VIOLATED MR. BROWNING’S RIGHT TO A FAIR
       TRIAL UNDER THE FOURTEENTH AMENDMENT AND THE SIXTH
       AMENDMENT’S RIGHT TO CONFRONT WITNESSES BY THE IMPROPER
       ADMISSION INTO EVIDENCE OF HEARSAY STATEMENTS OF MR.
       FLEETWOOD[.]

       {¶19} In his third and fourth assignments of error, Browning argues that the court erred

by allowing the State to play a 911 call from Fleetwood’s husband, as he did not testify at trial.

Specifically, Browning argues that the call amounted to inadmissible hearsay and violated his

rights under the Confrontation Clause.

       {¶20} Crim.R. 52(A) provides that “[a]ny error, defect, irregularity, or variance which

does not affect substantial rights shall be disregarded.” “Before constitutional error can be

considered harmless, we must be able to ‘declare a belief that it was harmless beyond a

reasonable doubt.’” State v. Brown, 65 Ohio St.3d 483, 485 (1992), quoting Chapman v.

California, 386 U.S. 18, 24 (1967).

       {¶21} Assuming without deciding that the trial court erred by admitting the 911 call

from Fleetwood’s husband, we must conclude that the error was harmless beyond a reasonable

doubt. In the 911 call, Fleetwood’s husband provides the 911 dispatcher with his location in the
                                                 8


event the police want to talk to him. Fleetwood’s husband also conveys to the dispatcher that he

witnessed a man “beating this girl up” and “had to pull [the man] off of her.” Browning has not

explained how the introduction of the call prejudiced him in light of the other testimony at trial.

See App.R. 16(A)(7).      The contents of the call merely reiterate Fleetwood’s and Safko’s

description of the events at trial. Therefore, at most, the introduction of the call would amount to

harmless error and would not warrant reversal. See State v. Reives-Bey, 9th Dist. No. 25138,

2011-Ohio-1778, ¶ 14 (harmless error applied to hearsay challenge); State v. Hartney, 9th Dist.

No. 25078, 2010-Ohio-4331, ¶ 25-27 (harmless error applied to Confrontation Clause challenge).

Browning’s third and fourth assignments of error are overruled.

                                Assignment of Error Number Five

       THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN
       ASSESSING COURT COSTS AGAINST DEFENDANT WITHOUT
       COMPLYING WITH R.C. 2947.23(A)[.]

       {¶22} In his fifth assignment of error, Browning argues that the trial court failed to

comply with R.C. 2947.23 when it assessed court costs against him in the absence of the

community service notifications set forth in the statute. We agree.

       {¶23} Former R.C. 2947.23(A)1 provides, in relevant part:

       (A)(1) In all criminal cases, * * *, the judge or magistrate shall include in the
       sentence the costs of prosecution, including any costs under section 2947.231 of
       the Revised Code, and render a judgment against the defendant for such costs. At
       the time the judge or magistrate imposes sentence, the judge or magistrate shall
       notify the defendant of both of the following:

       (a) If the defendant fails to pay that judgment or fails to timely make payments
       towards that judgment under a payment schedule approved by the court, the court
       may order the defendant to perform community service in an amount of not more
       than forty hours per month until the judgment is paid or until the court is satisfied
       that the defendant is in compliance with the approved payment schedule.

1
 R.C. 2947.23(A) was amended effective May 22, 2013, and no longer requires notification to
defendants that are sentenced to incarceration.
                                                9


        (b) If the court orders the defendant to perform the community service, the
        defendant will receive credit upon the judgment at the specified hourly credit rate
        per hour of community service performed, and each hour of community service
        performed will reduce the judgment by that amount.

A trial court must advise a defendant of the foregoing community service notifications at the

sentencing hearing. State v. Ibn-Ford, 9th Dist. No. 26386, 2013-Ohio-2172, ¶ 77-78. “[I]t is

reversible error for a trial court to fail to comply with the community service notifications of

R.C. 2947.23(A)(1)(a) & (A)(1)(b) * * *.” State v. Ross, 9th Dist. No. 25778, 2012-Ohio-1389,

¶ 28.

        {¶24} The record reflects that the trial court imposed costs upon Browning, but did not

inform him at his sentencing hearing that his failure to pay them could result in the imposition of

community service or that he would receive credit toward the costs from any community service

so imposed. As such, the trial court did not comply with the community service notifications set

forth in former R.C. 2947.23. Ibn-Ford at ¶ 78. The “proper remedy” for a trial court’s failure

to comply with the notification provisions of R.C. 2947.23 “is to reverse the trial court’s

imposition of court costs and remand for the proper imposition of court costs in accordance with

the requirements set forth in [the statute].” State v. Debruce, 9th Dist. No. 25574, 2012-Ohio-

454, ¶ 38. Accordingly, Browning’s fifth assignment of error is sustained and, upon remand, the

trial court must comply with the notice requirements of former R.C. 2947.23.

                                                III

        {¶25} Browning’s fifth assignment of error is sustained. His remaining assignments of

error are overruled. The judgment of the Summit County Court of Common Pleas is affirmed in

part, reversed in part, and the cause is remanded for further proceedings consistent with the

foregoing opinion.
                                                10


                                                                        Judgment affirmed in part,
                                                                                 reversed in part,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

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

Pleas, County of Summit, 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 equally to both parties.




                                                     BETH WHITMORE
                                                     FOR THE COURT



MOORE, P. J.
BELFANCE, J.
CONCUR.


APPEARANCES:

LEE A. SCHAFFER, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
