[Cite as State v. Snider, 2012-Ohio-2183.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. Sheila G. Farmer, J.
                          Plaintiff-Appellee   :       Hon. Julie A. Edwards, J.
                                               :
-vs-                                           :
                                               :       Case No. 2011-CA-00132
TROY SNIDER                                    :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Licking County
                                                   Municipal Court, Case No. 11CRB893




JUDGMENT:                                          Affirmed



DATE OF JUDGMENT ENTRY:                            May 15, 2012




APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

JONATHAN C. DIERNBACH                              RICHARD L. INNIS
Prosecuting Attorney                               Innis & Barker Co., L.P.A.
40 West Main Street                                8415 Pulsar Place, Suite 380
Newark, OH 43055                                   Columbus, OH 43240
[Cite as State v. Snider, 2012-Ohio-2183.]


Gwin, P.J.

        {¶1}     On December 14, 2011, appellant Troy Snider (“Snider”) was found guilty

after a bench trial of one count of domestic violence, a first-degree misdemeanor. The

Court sentenced him, in part, to 180 days in jail with 150 days suspended, with

requirements to complete alcohol and domestic violence counseling. The court imposed

a fine of $250.00 plus court cost. Snider was further ordered to comply with conditions

set by the probation department.

                                             Facts and Procedural History

        {¶2}     Brianna Snider is the thirteen-year-old daughter of Snider and his wife

Samantha. Snider and Samantha have been married thirteen years and have three

children. On May 8, 2011, Brianna was at home with two friends, her parents, her

younger brother, sister, and her twenty-year-old cousin.

        {¶3}     During the morning Brianna’s friend called 9-1-1 then handed the

telephone to Brianna. An emotional Brianna informed the dispatcher that Snider and

Samantha had been upstairs talking when Snider began yelling at Samantha, pushed

her to the ground and started to choke her. (State’s Exhibit 2). Brianna told the

dispatcher that her younger sister and brother as well as Brianna’s two friend’s had

been inside the home when the incident began. Brianna could be heard explaining to

her younger sister “dad was beating mom that’s not what guys are suppose to do to

people.” The younger sister was extremely upset and “freaking out.” Brianna can also

be heard explaining to her sister “he started choking her when you weren’t looking.”

Brianna further informed the dispatcher that she had tried to get Snider off Samantha
Licking County, Case No. 2011-CA-00132                                                   3


but got scared and ran outside. The dispatcher told Briana to walk toward the Sheriff’s

cruiser that was approaching her mother as they spoke.

       {¶4}   When Deputy Shannon Day of the Licking County Sherriff’s Office arrived,

Samantha was walking down the street. He approached Samantha as Brianna and the

others were walking toward him. He described Samantha as upset and crying. Deputy

Day observed bruising on Samantha’s face and redness around the throat area. He

described Brianna as upset and crying. Her younger sister was extremely upset to the

point that she could not speak to the deputy. Deputy Day obtained written statements

from Samantha and Brianna. Samantha told the deputy that she did not want to file

charges against Snider.

       {¶5}   At trial, Samantha testified on Snider’s behalf. She testified that the

evening before the incident she was very intoxicated by a combination of drugs and

alcohol. She testified that she had not slept, and was still intoxicated the morning of the

incident. Samantha testified further that an argument erupted over her wanting to take

Brianna and Brianna’s friends in the car. Snider and Samantha began yelling at each

other. Samantha testified that she struck Snider. She further admitted that she had

written in her statement to Deputy Day that Snider “threw or pushed” her to the floor.

Samantha further testified that Brianna had tried to come to her assistance. At trial,

Samantha claimed that the bruises on her face were a result of striking a table as she

fell to the floor. She contended at trial that Snider was trying to restrain her as she

violently fought against him.

       {¶6}   At trial, Brianna testified that her opinion of what occurred on the night in

question changed because of hearing stories from Snider and Samantha. She now
Licking County, Case No. 2011-CA-00132                                                  4


claimed that she did not have a clear view and that Snider was holding Samantha down

rather than choking her. She described injuries to Samantha face, chin and throat area.

      {¶7}   Both the written statements of Brianna and Samantha as well as the audio

recording of the 9-1-1 call were admitted into evidence without objection. The trial court

recessed. When court re-convened, the trial court announced its decision,

             The Court has considered the exhibits, "Plaintiffs Exhibit One, Two,

      and Three" and the Court has also, has re-read the written exhibits, the

      statements of Brianna as well as the alleged victim in this case, Mrs.

      Snider. Court has also re-listen to the 9-1-1 call...if you listen to the

      explanation of the alleged victim Mrs. Snider she claims that she

      manipulated the situation in order to punish her husband um, and uh,

      therefore, fabricated portions of her written statement uh, and claims that

      in fact is not what happened. The Court also heard Brianna Snider testify

      here today that she was mistaken about what it is that she thought she

      saw and that after um, reconsideration on her own as well as discussion

      with her mother and father she has since come to the conclusion she did

      not see what she believed she saw. The Court finds both of the claims to

      be dubious at best...the Court finds much more creditable the excited

      utterances and present sense impressions that young Brianna Snider uh,

      conveyed to the dispatcher. uh, and they were recorded during the 9-1-1

      call and the Court feels if there is any manipulation going on here, it's on

      behalf of the Defendant... that uh, in fact uh, these things did happen. Uh,

      and the Court believes beyond a reasonable doubt that in fact Mr. Snider
Licking County, Case No. 2011-CA-00132                                                5


       did cause or attempt to cause physical harm to Samantha Snider and for

       that reason the Court's going to enter a Guilty finding.

(T. at 40-41).

                                        Assignments of Error

       {¶8}      Snider raises one assignment of error,

       {¶9}      “I. THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE

DEFENDANT-APPELLANT'S CONVICTION FOR DOMESTIC VIOLENCE.”

                                              Analysis

       {¶10} Our review of the constitutional sufficiency of evidence to support a

criminal conviction is governed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979), which requires a court of appeals to determine 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 beyond a reasonable

doubt.” Id.; see also McDaniel v. Brown, _U.S._, 130 S.Ct. 665, 673, 175 L.Ed.2d

582(2010) (reaffirming this standard); State v. Fry, 125 Ohio St.3d 163, 926 N.E.2d

1239, 2010–Ohio–1017, ¶ 146; State v. Clay, 187 Ohio App.3d 633, 933 N.E.2d 296,

2010–Ohio–2720, ¶ 68.

       {¶11} Weight of the evidence addresses the evidence's effect of inducing belief.

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. When a court of appeals reverses a

judgment of a trial court on the basis that the verdict is against the weight of the

evidence, the appellate court sits as a “’thirteenth juror’” and disagrees with the fact
Licking County, Case No. 2011-CA-00132                                                   6

finder’s resolution of the conflicting testimony. Id. at 387, 678 N.E.2d 541, quoting Tibbs

v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). However, 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.

       {¶12} To find Snider guilty of domestic violence the trier of fact would have to

find that appellant knowingly caused or attempt to cause physical harm to a family or

household member. R.C. 2919.25(A). Physical harm to persons is defined as “any

injury, illness, or other physiological impairment, regardless of its gravity or duration.”

R.C. 2901.01(A) (3).

       {¶13} R.C. 2901.22 defines “knowingly” as follows:

              (B) 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.

       {¶14} “Whether a person acts knowingly can only be determined, absent

a defendant's admission, from all the surrounding facts and circumstances,

including the doing of the act itself.” State v. Huff, 145 Ohio App. 3d 555, 563,

763 N.E.2d 695(2001). (Footnote omitted.) Thus, “[t]he test for whether a
Licking County, Case No. 2011-CA-00132                                                7


defendant acted knowingly is a subjective one, but it is decided on objective

criteria.” State v. McDaniel, 2nd Dist. No. 16221, 1998 WL 214606 (May 1,

1998), (citing State v. Elliott (1995), 104 Ohio App.3d 812, 663 N.E.2d

412(1995).

       {¶15} R.C. 2923.02(A) provides a definition of attempt, "[n]o person, purposely

or knowingly, and when purpose or knowledge is sufficient culpability for the

commission of an offense, shall engage in conduct that, if successful, would constitute

or result in the offense."

       {¶16} The Ohio Supreme Court has held that a criminal attempt occurs when the

offender commits an act constituting a substantial step towards the commission of an

offense. State v. Woods, 48 Ohio St.2d 127, 357 N.E.2d 1059(1976), paragraph one of

the syllabus, overruled in part by State v. Downs, 51 Ohio St.2d 47, 364 N.E.2d

1140(1977); See also, State v. Ashbrook, 5th Dist. No.2004-CA-00109, 2005-Ohio-740,

reversed on other grounds and remanded for re-sentencing pursuant to State v. Foster,

109 Ohio St.3d 1, 2006-Ohio-856, In re: Ohio Criminal Sentencing Statutes Cases, 109

Ohio St.3d 313, 2006-Ohio-2109.

       {¶17} In defining a substantial step, the Woods Court indicated that the act need

not be the last proximate act prior to the commission of the offense. Woods at 131-32,

357 N.E.2d 1059. However, the act "must be strongly corroborative of the actor's

criminal purpose." Id. at paragraph one of the syllabus. This test “properly directs

attention to overt acts of the defendant which convincingly demonstrate a firm purpose

to commit a crime, while allowing police intervention, based upon observation of such

incriminating conduct, in order to prevent the crime when the criminal intent becomes
Licking County, Case No. 2011-CA-00132                                                    8

apparent.” Woods, supra at 132, 357 N.E.2d at 1063. In other words, a substantive

crime would have been committed had it not been interrupted. Precisely what conduct

will be held to be a substantial step must be determined by evaluating the facts and

circumstances of each particular case. State v. Group, 98 Ohio St.3d 248, 262, 2002-

Ohio-7247, 781 N.E.2d 980(2002), ¶100.

       {¶18} Snider does not dispute that Samantha was a ““family or household

member.” Further, Samantha, Brianna and Deputy Day each testified to the injuries

visible on Samantha after the incident. Accordingly, Snider takes issue with the trial

court’s reliance upon the statements made in Brianna’s 9-1-1 call rather than the

statements she and Samantha made at trial.

       {¶19} Snider relies exclusively on the First District's decision in State v. Attaway,

111 Ohio App. 3d 488, 676 N.E. 2d 600(1996) in support of his argument against

sufficiency of the evidence. The court in Attaway held that a domestic violence

conviction was based on insufficient evidence because the victim's original and

subsequently recanted statement was “so inherently suspect that the statement [was]

insufficient as a matter of law.” Attaway at 491.

       {¶20} However, the First District subsequently explained the decision in Attaway

       was limited to the facts of that case,

              [we held] that the credibility of a statement made to the arresting

       officer by the victim, which was uncorroborated and completely

       contradicted by the victim's testimony at trial, was so inherently suspect

       that it was legally insufficient to establish Attaway's guilt beyond a
Licking County, Case No. 2011-CA-00132                                                    9


         reasonable doubt. Obviously, our holding was limited to the facts of that

         case.

State v. Pettit, 1st Dist. No. C-980261, 1999 WL 12759 (Jan 15, 1999). In Attaway, the

court found that the record did not contain any corroborating evidence to support the

crime.

         {¶21} In Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d

224(2006), the United States Supreme Court considered the meaning of the term

“testimonial.” The Court found the Confrontation Clause applies only to testimonial

hearsay and not to statements made “to enable police assistance to meet an ongoing

emergency.” Id. at 2277. In Davis, the victim had made a 911 emergency call, and in the

course of that call incriminated the defendant. The Supreme Court, in affirming the

lower court's admission of the statements, held:

                 Statements are non-testimonial when made in the course of police

         interrogation under circumstances objectively indicating that the primary

         purpose of the interrogation is to enable police assistance to meet an

         ongoing emergency. They are testimonial when the circumstances

         objectively indicate that there is no such ongoing emergency, and that the

         primary purpose of the interrogation is to establish or prove past events

         potentially relevant to later prosecution.

         {¶22} Id. at 2273–2274. In the case of 9-1-1 calls, the Davis Court reasoned, the

declarants are generally “speaking about events as they [are] actually happening * * *.”

(Emphasis        sic.) Id. at   2276.   9-1-1   callers   are   typically   facing   ongoing
Licking County, Case No. 2011-CA-00132                                                   10

emergencies. Id. Under these exigent circumstances, the callers are not testifying as

witnesses, and their statements do not qualify as testimonial in nature.

       {¶23} In the case at bar, Brianna’s telephone call also fits within the excited

utterance hearsay exception and is admissible. 9-1-1 calls are generally admissible as

excited utterances or present sense impressions. See State v. Banks, 10th Dist. No.

03AP-1286, 2004-Ohio-6522; State v. Holloway, 10th Dist. No. 02AP-984, 2003-Ohio-

3298. Thus, the trial court could rely upon the statements Brianna made during the 9-1-

1 call to the police.

       {¶24} Ultimately, “the reviewing court must determine whether the appellant or

the appellee provided the more believable evidence, but must not completely substitute

its judgment for that of the original trier of fact ‘unless it is patently apparent that the

factfinder lost its way.’” State v. Pallai, 7th Dist. No. 07 MA 198, 2008-Ohio-6635, ¶31,

quoting State v. Woullard, 158 Ohio App.3d 31, 2004–Ohio–3395, 813 N.E.2d 964, ¶

81. In other words, “[w]hen there exist two fairly reasonable views of the evidence or

two 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. No. 99 CA 149, 2002–Ohio–

1152, at ¶ 13, citing State v. Gore (1999), 131 Ohio App.3d 197, 201, 722 N.E.2d 125.

       {¶25} The weight to be given to the evidence and the credibility of the witnesses

are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d

212(1967), paragraph one of the syllabus; State v. Hunter, 131 Ohio St.3d 67, 2011-

Ohio-6524, 960 N.E.2d 955, ¶118. Accord, Glasser v. United States, 315 U.S. 60, 80,

62 S.Ct. 457, 86 L.Ed. 680 (1942); Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct.

843, 74 L.Ed.2d 646 (1983).
Licking County, Case No. 2011-CA-00132                                                11


             A fundamental premise of our criminal trial system is that ‘the [trier

      of fact] is the lie detector.’ United States v. Barnard, 490 F.2d 907, 912

      (9th Cir. 1973), cert. denied, 416 U.S. 959, 94 S.Ct. 1976, 40 L.Ed.2d 310

      (1974). Determining the weight and credibility of witness testimony,

      therefore, has long been held to be the ‘part of every case [that] belongs

      to the [trier of fact], who [is] presumed to be fitted for it by [his or her]

      natural intelligence and... practical knowledge of men and the ways of

      men.’ Aetna Life Ins. Co. v. Ward, 140 U.S. 76, 88, 11 S.Ct. 720, 724-725,

      35 L.Ed. 371 (1891).

United States v. Scheffer (1997), 523 U.S. 303, 313, 118 S.Ct. 1261, 1266-1267(1997).

      {¶26} Although Snider cross-examined the witnesses and argued that Samantha

was as much at fault for the melee as Snider, and further that there was a lack of

evidence that Snider had choked Samantha or caused her physical harm, 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).

      {¶27} The judge was free to accept or reject any and all of the evidence offered

by the parties and assess the witness’s credibility. "While the [judge] may take note of

the inconsistencies and resolve or discount them accordingly * * * such inconsistencies

do not render defendant's conviction against the manifest weight or sufficiency of the

evidence". State v. Craig, 10th Dist. No. 99AP-739, 1999 WL 29752 (Mar 23, 2000)

citing State v. Nivens, 10th Dist. No. 95APA09-1236, 1996 WL 284714 (May 28, 1996).

Indeed, the [judge] need not believe all of a witness' testimony, but may accept only

portions of it as true. State v. Raver, Franklin App. No. 02AP-604, 2003- Ohio-958, ¶ 21,
Licking County, Case No. 2011-CA-00132                                                  12

citing State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964); State v. Burke, 10th

Dist. No. 02AP-1238, 2003-Ohio-2889, citing State v. Caldwell (1992), 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, supra.

      {¶28} In Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E. 2d 118 (1954), the

      Supreme Court further cautioned,

             The mere number of witnesses, who may support a claim of one or

      the other of the parties to an action, is not to be taken as a basis for

      resolving disputed facts. The degree of proof required is determined by

      the impression which the testimony of the witnesses makes upon the trier

      of facts, and the character of the testimony itself. Credibility, intelligence,

      freedom from bias or prejudice, opportunity to be informed, the disposition

      to tell the truth or otherwise, and the probability or improbability of the

      statements made, are all tests of testimonial value. Where the evidence is

      in conflict, the trier of facts may determine what should be accepted as the

      truth and what should be rejected as false. See Rice v. City of Cleveland,

      114 Ohio St. 299, 58 N.E.2d 768.

161 Ohio St. at 477-478. (Emphasis added).

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

heavily against the conviction.’” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d

541, quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. The judge neither lost his

way nor created a miscarriage of justice in convicting Snider of domestic violence.
Licking County, Case No. 2011-CA-00132                                                  13


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

Snider's conviction was not against the manifest weight of the evidence. To the

contrary, the judge appears to have fairly and impartially decided the matters before it.

The judge as a trier of fact can reach different conclusions concerning the credibility of

the testimony of Brianna and Samantha at trial, and concerning the evidence presented

by the parties; this court will not disturb that finding so long as competent evidence was

present to support it. State v. Walker, 55 Ohio St.2d 208, 378 N.E.2d 1049 (1978). The

judge heard the witnesses, evaluated the evidence, and was convinced of Snider's guilt.

      {¶31} 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

crime of domestic violence beyond a reasonable doubt.

      {¶32} Snider’s sole assignment of error is overruled in its entirety and the

judgment of the Licking County Municipal Court is affirmed.

By Gwin, P.J.,

Farmer, J., and

Edwards, J., concur

                                             _________________________________
                                             HON. W. SCOTT GWIN


                                             _________________________________
                                             HON. SHEILA G. FARMER


                                             _________________________________
                                             HON. JULIE A. EDWARDS


WSG:clw 0426
[Cite as State v. Snider, 2012-Ohio-2183.]


                IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
TROY SNIDER                                       :
                                                  :
                                                  :
                        Defendant-Appellant       :       CASE NO. 2011-CA-00132




       For the reasons stated in our accompanying Memorandum-Opinion, Snider’s sole

assignment of error is overruled in its entirety and the judgment of the Licking County

Municipal Court is affirmed. Costs to appellant.




                                                      _________________________________
                                                      HON. W. SCOTT GWIN


                                                      _________________________________
                                                      HON. SHEILA G. FARMER


                                                      _________________________________
                                                      HON. JULIE A. EDWARDS
