[Cite as State v. Bolling, 2011-Ohio-2790.]


          Court of Appeals of Ohio
                                  EIGHTH APPELLATE DISTRICT
                                     COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                      No. 95568



                                      STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                        ROYCHEMERE A. BOLLING
                                                       DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED



                                Criminal Appeal from the
                          Cuyahoga County Court of Common Pleas
                                   Case No. CR-536940

        BEFORE: Celebrezze, P.J., Cooney, J., and Rocco, J.

        RELEASED AND JOURNALIZED:                         June 9, 2011
ATTORNEY FOR APPELLANT

Iverson M. Jackson
420 Lakeside Place
323 West Lakeside Avenue
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: Oscar E. Albores
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




FRANK D. CELEBREZZE, JR., P.J.:

      {¶ 1} Appellant, Roychmere Bolling, appeals his conviction for domestic

violence. For the reasons outlined below, we affirm appellant’s conviction.

      {¶ 2} On May 19, 2010, appellant was indicted on charges of kidnapping

in violation of R.C. 2905.01(A)(3), a felony of the first degree; domestic violence

in violation of R.C. 2919.25(A)(1), a misdemeanor of the first degree;

intimidation of a crime victim or witness in violation of R.C. 2921.04(B), a

felony of the third degree; and assault in violation of R.C. 2903.13(A), a

misdemeanor of the first degree. On June 3, 2010, appellant entered a plea of

not guilty and trial was set for August 9, 2010.
      {¶ 3} Subsequently, appellant waived his right to a jury trial.    At the

close of all evidence, appellant moved for acquittal, which was granted as to

Counts 1, 3, and 4, and denied as to Count 2, domestic violence. On August

10, 2010, the trial court found appellant guilty on the only remaining charge of

domestic violence. Appellant was sentenced to three months of community

control, ten hours of community service, a $200 fine, and anger management

classes.

      {¶ 4} Appellant and the alleged victim, Tiffany Crosby, had dated and

lived together in Cleveland, Ohio.     On November 5, 2009, appellant met

Crosby at the Early Childhood Development Center, where Crosby was

picking up her son from school. At that time, appellant confronted Crosby

about an encounter she had with a previous boyfriend at a local bar. When

Crosby attempted to disengage from appellant, he grabbed her scarf to prevent

her from walking away.      Appellant continued to hold Crosby by her scarf

throughout the parties’ argument.      A teenage girl from the neighborhood

witnessed the argument. Crosby saw the girl and asked her to take Crosby’s

son home from the school. Appellant then yelled at the girl, “If you go get her

mother I’m going to kill her.”

      {¶ 5} On November 11, 2009, Crosby gave a voluntary statement

regarding the November 5, 2009 incident to Detective Castillo of the domestic

violence unit of the Cleveland police department. Based on this statement,
Det. Castillo conferred with the city prosecutor, and a warrant was issued for

appellant’s arrest.

                                 Law and Analysis

      {¶ 6} Appellant appeals, citing two assignments of error:

      {¶ 7} “I.    “The trial court erred in denying appellant’s motion for

acquittal on the domestic violence charge when the state failed to present

sufficient evidence to sustain the conviction.”

      {¶ 8} “II.   “Appellant’s conviction is against the manifest weight of the

evidence.”

      {¶ 9} For the purposes of clarity and judicial economy, appellant’s first

and second assignment of errors will be discussed together.

      {¶ 10} Appellant argues that there was insufficient evidence to support

his conviction for domestic violence and that the conviction was against the

manifest weight of the evidence. He specifically contends that the state failed

to present any evidence that he knowingly caused or attempted to cause

physical harm to Crosby.

      {¶ 11} “The legal concepts of sufficiency of the evidence and weight of the

evidence are both quantitatively and qualitatively different.” State v.

Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541, paragraph two

of the syllabus. Sufficiency is a test of adequacy. Whether the evidence is

legally sufficient to sustain a verdict is a question of law. Id. at 386. Weight
of the evidence concerns “the inclination of the greater amount of credible

evidence, offered in a trial, to support one side of the issue rather than the

other.”   (Emphasis deleted.)     Id. at 387.    Weight is not a question of

mathematics, but depends on its effect in inducing belief. Id.

      {¶ 12} When reviewing the sufficiency of the evidence to support a

criminal conviction, an appellate court examines 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. State v. Jenks (1991), 61 Ohio

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

      {¶ 13} A challenge to the manifest weight of the evidence attacks the

verdict in light of the state’s burden of proof beyond a reasonable doubt.

Thompkins at 386–387.       When inquiring into the manifest weight of the

evidence, the reviewing court sits as the “thirteenth juror and makes an

independent review of the record.” Id. at 387; Tibbs v. Florida (1982), 457

U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652. The appellate court reviews the

entire record, weighs the evidence and all reasonable inferences, considers the

credibility of all witnesses and determines 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 judgment must be reversed and a new

proceeding ordered. State v. Martin (1983), 20 Ohio App.3d 172, 175, 485

N.E.2d 717.

      {¶ 14} Where a judgment is supported by competent, credible evidence

going to all essential elements to be proven, the judgment will not be reversed

as being against the manifest weight of the evidence.         State v. Mattison

(1985), 23 Ohio App.3d 10, 14, 490 N.E.2d 926.         Accordingly, reversal on

manifest weight grounds is reserved for “the exceptional case in which the

evidence weighs heavily against the conviction.” Martin at 175.

      {¶ 15} To sustain appellant’s conviction for domestic violence in violation

of R.C. 2919.25(A), the state was required to prove that appellant knowingly

caused or attempted to cause physical harm to Crosby.

      {¶ 16} The definition of “knowingly” found in R.C. 2901.22(B) provides

that “[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.”

      {¶ 17} “‘Physical harm to persons’ means any injury, illness, or other

physiological impairment, regardless of its gravity or duration.”           R.C.

2901.01(A)(3).   “The foregoing definition clearly mandates that any injury

may constitute physical harm and that the gravity or duration of the injury is
not a factor for consideration.” State v. Bowens (Aug. 3, 1998), Clermont App.

No. CA98-01-009, citing State v. Goble (1982), 5 Ohio App.3d 197, 199, 450

N.E.2d 722.

      {¶ 18} Generally, “[o]ne does not have to cause serious injury to be guilty

of domestic violence.” State v. Blonski (1997), 125 Ohio App.3d 103, 114, 707

N.E.2d 1168. Indeed, “[a] defendant may be found guilty of domestic violence

even if the victim sustains only minor injuries, or sustains no injury at all.”

Id., citing State v. Nielsen (1990), 66 Ohio App.3d 609, 612, 585 N.E.2d 906.

      {¶ 19} While we recognize that Crosby testified that she was not injured

by the appellant and was “fine” when the police arrived at the scene, a

violation of R.C. 2919.25(A) can also be demonstrated by a showing that

appellant attempted to commit physical harm. Hamilton v. Cameron (1997),

121 Ohio App.3d 445, 700 N.E.2d 336. A criminal “attempt” is defined as an

act that is a substantial step in a course of conduct planned to culminate in

the commission of a crime. R.C. 2923.02(A).

      {¶ 20} In the case at bar, the evidence demonstrates that in the midst of

a heated argument, appellant intentionally and consciously grabbed Crosby by

her scarf and prevented her from walking away. In fact, Crosby testified that

appellant grabbed her in such a manner that she had to place her hands

between her neck and the scarf in order to prevent herself from choking.
Appellant himself demonstrated his mindset at the time of the argument when

he told the nearby teenage girl, “If you go get her mother I will kill her.”

      {¶ 21} Taking this information into consideration, we find that the

totality of the circumstances indicate that appellant, in the least, knowingly

attempted to cause physical harm to Crosby.             Accordingly, appellant’s

conviction was supported by sufficient evidence.

      {¶ 22} Additionally, we are unable to conclude that this is the exceptional

case in which the evidence weighs heavily against the conviction. The state

presented competent, credible evidence to support each element of the offense

of which appellant was convicted. As stated, Crosby testified under oath that

appellant abruptly grabbed her by her scarf to prevent her from walking away

from him. She testified that the scarf was wrapped tightly around her neck

due to the cold weather and that she kept her hand between her neck and

scarf to prevent appellant from choking her.         Further, a passerby heard

appellant threaten to kill Crosby if her mother was summoned.

      {¶ 23} In weighing the credibility of witnesses and the totality of

evidence presented, appellant’s conviction for domestic violence was not

against the manifest weight of the evidence.

      {¶ 24} Appellant’s first and second assignments of error are without

merit and are overruled.

      Judgment affirmed.
      It is ordered that appellee recover of appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. Case remanded to

the trial court for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., PRESIDING JUDGE

COLLEEN CONWAY COONEY, J., and
KENNETH A. ROCCO, J., CONCUR
