[Cite as State v. Green, 2016-Ohio-8251.]


                                       COURT OF APPEALS
                                  TUSCARAWAS COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                    JUDGES:
                                                 Hon. William B. Hoffman, P. J.
        Plaintiff-Appellee                       Hon. John W. Wise, J.
                                                 Hon. Patricia A. Delaney, J.
-vs-
                                                 Case No. 2016 AP 04 0025
KIP GREEN

        Defendant-Appellant                      OPINION




CHARACTER OF PROCEEDING:                      Criminal Appeal from the County Court,
                                              Case No. 2015CRB690


JUDGMENT:                                     Affirmed



DATE OF JUDGMENT ENTRY:                       December 16, 2016



APPEARANCES:

For Plaintiff-Appellee                        For Defendant-Appellant

JAMES J. ONG                                  GERALD A. LATANICH
PROSECUTING ATTORNEY                          PUBLIC DEFENDER OFFICE
201 North Main Street, P.O. Box 272           153 North Broadway
Uhrichsville, Ohio 44683                      New Philadelphia, Ohio 44663
Tuscarawas County, Case No. 2016 AP 04 0025                                              2

Wise, J.

      {¶1}   Appellant Kip D. Green appeals his conviction on one count of domestic

violence following a bench trial in the Tuscarawas County Court, Uhrichsville, Ohio.

      {¶2}   Appellee is the state of Ohio.

                          STATEMENT OF THE FACTS AND CASE

      {¶3}   On November 15, 2015, an incident occurred between Appellant Kip D.

Green and his live-in girlfriend A.W. at the Fraternal Order of Eagles establishment

located in Dennison, Ohio. As a result of this incident, Appellant was charged with one

count of domestic violence.

      {¶4}   On April 6, 2016, a bench trial proceeded in this matter.

      {¶5}   Initially, we note that no transcript could be provided to this Court as no

transcript of the proceedings exists. Appellant filed an Appellate Rule 9 statement, and

the State filed objections to same. As a result, the trial court submitted the following as

the record, pursuant to Appellate Rule 9(c):

             The witness testimony was as follows:

             1. Kristin Willis- she was the barmaid at the club on the night in

      question.

             2. She did not see [A.W.] hit Kip Green nor did she see Kip Green hit

      [A.W.]. Kristin Willis did not hear any argumentative conversations between

      Kip Green and [A.W.]. She did not see any violent behavior between [A.W.]

      and Kip Green. She testified as to the bodily injuries suffered by [A.W.] on

      the date of the incident between the Appellee and [A.W.].
Tuscarawas County, Case No. 2016 AP 04 0025                                               3


           3. Kayla Amore's testimony was as follows: She was employed at

     the club but was not working that day. She was at the bar and was talking

     to [A.W.] and Kip Green as they all sat at the bar. Ms. Amore bought shots

     for Kip Green and [A.W.]. [A.W.] became upset due to Ms. Amore buying

     Kip Green shots and she left. Ms. Amore testified there was no violent

     behavior or argumentative words between Kip Green and [A.W.] before she

     left. Approximately one half hour later [A.W.] came back, she appeared

     drunk and upset. [A.W.] called Ms. Amore a slut. Ms. Amore testified Mr.

     Green was sitting at the bar and [A.W.] came up to him from the rear. [A.W.]

     hit Mr. Green with a slap to the back of the head and then hit Mr. Green in

     the face. Mr. Green did not respond. [A.W.] then walked away from Mr.

     Green and walked to the exit. [A.W.] came back to Mr. Green. There were

     no words exchanged between the parties that she remembered. Mr. Green

     got off his bar stool and stood up when [A.W.] came back at him. Mr. Green

     punched her in the face and left the bar. Ms. Amore state what [A.W.] did to

     Mr. Green was wrong, but that the actions of Mr. Green were wrong and

     unnecessary.

           4. Officer Boitnott testified. Officer Boitnott did not see the altercation.

     He saw [A.W.] and testified as to her injuries. He testified that Mr. Green

     requested no charges be filed against [A.W.].

           5. [A.W.] testified to the injuries she sustained due to the action of

     Mr. Green. She further testified that she and Mr. Green have a child together

     and that she and Mr. Green resided together on the date of the incident.
Tuscarawas County, Case No. 2016 AP 04 0025                                                 4


             The State rested and the Defense raised the affirmative defense of

     self-defense on a Criminal Rule 29 Motion. The affirmative defense of self-

     defense was [only] met in [part] that:

             1. There was no conduct verbal or physical by the Defendant that

     started the affray.

             2. The witness stated [A.W.] hit Mr. Green two times. [A.W.] walked

     away and returned immediately at a fast pace towards the Defendant.

             3. Mr. Green stood up and hit [A.W.] in the face one time and then

     left.

             4. The defense raised the issue of there was no duty to retreat.

     {¶6}    At trial, the State also played the security camera footage of the incident.

     {¶7}    At the conclusion of trial, the trial court found Appellant guilty of domestic

violence.

     {¶8}    Appellant now appeals, assigning the following error for review:

                                  ASSIGNMENT OF ERROR

     {¶9}    “I. THE CONVICTION FOR DOMESTIC VIOLENCE WAS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE DUE TO THE APPELLANT HAVING SHOWN

BY A PREPONDERANCE OF THE EVIDENCE THE AFFIRMATIVE DEFENSE OF

SELF-DEFENSE.”

                                               I.

     {¶10} In his sole Assignment of Error, Appellant argues that his conviction was

against the manifest weight of the evidence. We disagree.
Tuscarawas County, Case No. 2016 AP 04 0025                                                5


      {¶11} To find Appellant guilty of domestic violence, the trier of fact would have to

find beyond a reasonable doubt that he knowingly caused or attempted 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.” “Family or household member” includes “A spouse, a person living as a

spouse, or a former spouse of the offender” R.C. §2919.25(F)(1)(a)(i). A “person living

as a spouse” includes “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).

      {¶12} Appellant argues that he acted in self-defense. Self-defense is a

“confession and avoidance” affirmative defense in which Appellant admits the elements

of the crime but seeks to prove some additional element that absolves him of guilt. State

v. White, 4th Dist. Ross No. 97 CA 2282, 1998 WL 2282 (Jan. 14, 1998). The affirmative

defense of self-defense places the burden of proof on a defendant by a preponderance

of the evidence. In re Collier, 5th Dist. Richland No. 01 CA 5, 2001 WL 1011457 (Aug.

30, 2001), citing State v. Caldwell, 79 Ohio App.3d 667, 679, 607 N.E.2d 1096 (4th

Dist.1992). The proper standard for determining whether a criminal defendant has

successfully raised an affirmative defense is to inquire whether the defendant has

introduced sufficient evidence, which, if believed, would raise a question in the minds of

reasonable persons concerning the existence of the issue. State v. Melchior, 56 Ohio

St.2d 15, 381 N.E.2d 195 (1978), paragraph one of the syllabus.
Tuscarawas County, Case No. 2016 AP 04 0025                                                6


      {¶13} To establish self-defense in the use of non-deadly force, the accused must

show: 1) he was not at fault in creating the situation giving rise to the altercation; 2) the

accused had reasonable grounds to believe and an honest belief, even though mistaken,

that some force was necessary to defend himself against the imminent use of unlawful

force; and 3) the force used was not likely to cause death or great bodily harm. State v.

Hoopingarner, 5th Dist. Tuscarawas No. 2010AP 07 00022, 2010–Ohio–6490, ¶ 31,

citing State v. Vance, 5th Dist. Ashland No. 2007–COA–035, 2008–Ohio–4763, ¶ 77

(citations omitted). If any one of these elements is not proven by a preponderance of the

evidence, the theory of self-defense does not apply. State v. Williford, 49 Ohio St.3d 247,

249, 551 N.E.2d 1279 (1990).

      {¶14} Here, the witness testimony together with the video established the

necessary elements of the charge of domestic violence. Appellant and the victim have a

child together and lived together. Further, Appellant caused physical harm to the victim.

      {¶15} As to Appellant’s affirmative defense of self-defense, we find that Appellant

failed to prove that he had reasonable grounds to believe that force was necessary to

defend himself. Further, the force he used against the victim was likely to cause her great

bodily harm.

      {¶16} As an appellate court, we are not fact finders; we neither weigh the evidence

nor judge the credibility of witnesses. Our role is to determine whether there is relevant,

competent and credible evidence, upon which the fact finder could base his or her

judgment. Cross Truck v. Jeffries, 5th Dist. Stark No. CA–5758, 1982 WL 2911 (Feb. 10,

1982). Accordingly, judgments supported by some competent, credible evidence going

to all the essential elements of the case will not be reversed as being against the manifest
Tuscarawas County, Case No. 2016 AP 04 0025                                                7

weight of the evidence. C.E. Morris Co. v. Foley Construction, 54 Ohio St.2d 279, 376

N.E.2d 578(1978). The Ohio Supreme Court has emphasized: “ ‘[I]n determining whether

the judgment below is manifestly against the weight of the evidence, every reasonable

intendment and every reasonable presumption must be made in favor of the judgment

and the finding of facts. * * *.’ ” Eastley v. Volkman, 132 Ohio St.3d 328, 334, 972 N.E.2d

517, 2012–Ohio–2179, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77,

80, 461 N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review,

Section 603, at 191–192 (1978). Furthermore, it is well established that the trial court is

in the best position to determine the credibility of witnesses. See, e.g., In re Brown, 9th

Dist. No. 21004, 2002–Ohio–3405, ¶ 9, citing State v. DeHass, 10 Ohio St .2d 230, 227

N.E.2d 212 (1967).

      {¶17} 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 fact

finder lost its way.’ ” State v. Pallai, 7th Dist. Mahoning 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 (2nd Dist.2004), ¶ 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. Mahoning No. 99 CA 149, 2002–Ohio–1152, at ¶ 13, citing State v. Gore, 131

Ohio App.3d 197, 201, 722 N.E.2d 125(7th Dist.1999).

      {¶18} 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
Tuscarawas County, Case No. 2016 AP 04 0025                                              8

(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).

      {¶19} The judge as the trier of fact was free to accept or reject any and all of the

evidence offered by the parties and assess the witness's credibility. “While the [trier of

fact] 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. Franklin No. 99AP–739, 1999

WL 29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09–1236,

1996 WL 284714 (May 28, 1996). Indeed, the [trier of fact] need not believe all of a

witness' testimony, but may accept only portions of it as true. State v. Raver, 10th Dist.

Franklin No. 02AP–604, 2003–Ohio–958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67,

197 N.E.2d 548 (1964); State v. Burke, 10th Dist. Franklin No. 02AP–1238, 2003–Ohio–

2889, citing State v. Caldwell, 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.

      {¶20} 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 Appellant of the charges.

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

Appellant's conviction is not against the manifest weight of the evidence. To the contrary,
Tuscarawas County, Case No. 2016 AP 04 0025                                                 9


the judge appears to have fairly and impartially decided the matters before him. The

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

testimony of the witnesses. This Court will not disturb the trier of fact’s 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 Appellant's guilt.

      {¶22} Finally, upon careful consideration of the record as set forth in the trial

court’s App.R. 9(c) statement and the video, 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.

      {¶23} Appellant’s sole Assignment of Error is overruled.

      {¶24} For the foregoing reasons, the judgment of the County Court, Tuscarawas

County, Ohio, is affirmed.


By: Wise, J.

Hoffman, P. J., and

Delaney, J., concur.




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