[Cite as State v. Clark, 2015-Ohio-2978.]


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

STATE OF OHIO                                       C.A. No.     14AP0002

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
MARK CLARK                                          WAYNE COUNTY MUNICIPAL COURT
                                                    COUNTY OF WAYNE, OHIO
        Appellant                                   CASE No.   CRB-13-07-01183

                                  DECISION AND JOURNAL ENTRY

Dated: July 27, 2015



        MOORE, Judge.

        {¶1}     Defendant, Mark Clark, appeals from the judgment of the Wayne County

Municipal Court. We affirm.

                                               I.

        {¶2}     In July of 2013, Officer Christopher Grabowski of the City of Wooster Police

Department responded to Freedlander Park in Wooster, Ohio, where Mr. Clark was reported to

have engaged in a physical altercation with his fifteen-year-old daughter, A.C.       Officer

Grabowski spoke to A.C. and witnesses, and the officer noted a red mark on A.C.’s chest that

was consistent with being struck. As a result of the witnesses’ statements and the mark on

A.C.’s chest, Mr. Clark was charged with domestic violence in violation of R.C. 2919.25(A),

which provides that “[n]o person shall knowingly cause or attempt to cause physical harm to a

family or household member.”
                                                 2


       {¶3}    Mr. Clark pleaded not guilty to the charge, and the case proceeded to a jury trial.

The jury found Mr. Clark guilty, and the trial court imposed sentence in an entry dated January

14, 2014.     Mr. Clark timely appealed from the sentencing entry, and he now raises one

assignment of error for our review.

                                                II.

                                  ASSIGNMENT OF ERROR

       THE JURY’S FINDING OF GUILT WAS NOT SUPPORTED BY
       SUFFICIENT EVIDENCE AND WAS AGAINST THE MANIFEST WEIGHT
       OF THE EVIDENCE.

       {¶4}    In his sole assignment of error, Mr. Clark argues that his conviction was not

supported by sufficient evidence and was against the manifest weight of the evidence. We

disagree.

       {¶5}    Initially, we note that R.C. 2919.25(A) does not prevent “a parent from properly

disciplining his or her child.” State v. Suchomski, 58 Ohio St.3d 74, 75 (1991). There is a split

of authority pertaining to whether the State must disprove proper parental discipline as an

element of domestic violence, or whether the exercise of proper parental discipline is an

affirmative defense to domestic violence. See State v. Rosa, 7th Dist. Mahoning No. 12 MA 60,

2013-Ohio-5867, ¶ 26, fns.1 and 2 (identifying the First, Fourth, Sixth, and Eighth Districts as

treating parental discipline as an element of the offense, and the Second, Third, Fifth, Tenth,

Eleventh, and Twelfth Districts as treating parental discipline as an affirmative defense). If it is

an element of the offense, on which the State bears the burden of proof, then it is properly

reviewed in a challenge to the sufficiency of the evidence, but if it is an affirmative defense, on

which the defendant bears the burden of proof, it is not properly reviewed in the context of the

sufficiency of the evidence. See R.C. 2901.05(A) (prosecution bears the burden of proof, beyond
                                                 3


a reasonable doubt, for all elements of the offense, and defendant bears the burden of proof, by a

preponderance of the evidence, for an affirmative defense) and State v. Hancock, 108 Ohio St.3d

57, 2006-Ohio-160, ¶ 37 (affirmative defenses are not properly argued in a challenge to the

sufficiency of the evidence).

       {¶6}    Although this Court has addressed the issue of parental discipline in the context of

domestic violence and assault, it does not appear that we have been squarely presented with an

argument on the issue of the burden of proof.            State v. Barker, 9th Dist. Lorain No.

04CA008439, 2004-Ohio-4329, ¶ 18 (noting that the jury was instructed as to the “affirmative

defense of corporal punishment”); see also Lorain v. Prudoff, 9th Dist. Lorain No. 93CA005684,

1994 WL 709667, *3-*4 (Dec. 21, 1994) (noting in analysis of the sufficiency of the evidence

that, assuming nonparent defendant was permitted to use proper and reasonable discipline on the

victim, the testimony at trial was sufficient to demonstrate that defendant exceeded proper and

reasonable parental discipline.)

       {¶7}    Here, the parties and the trial court treated reasonable and proper parental

discipline as an affirmative defense to the domestic violence charge, and the jury was instructed

accordingly. On appeal, because Mr. Clark has not challenged the determination that reasonable

and proper parental discipline is an affirmative defense, we decline to pass upon it. See In re

Hiltabidel, 9th Dist. Summit No. 21009, 2002-Ohio-3627, ¶ 58 (“An appellant bears the burden

of affirmatively demonstrating error on appeal”). Instead, we will confine our discussion of

parental discipline to our analysis of the manifest weight of the evidence, where we will address

it as an affirmative defense as the trial court did without challenge below or on appeal.

Sufficiency of the Evidence
                                                4


       {¶8}    The issue of whether a conviction is supported by sufficient evidence is a

question of law, which we review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).

When considering a challenge to the sufficiency of the evidence, the court must determine

whether the prosecution has met its burden of production. Id. at 390 (Cook, J. concurring). In

making this determination, an appellate court must view the evidence in the light most favorable

to the prosecution:

       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.

State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.

       {¶9}    As part of the State’s case-in-chief, it presented the testimony of A.C. A.C.

maintained that she was, at the time of hearing, fifteen years old. She explained that, on the date

at issue, she was living with her grandmother, and Mr. Clark came to pick her up with her two

brothers. She got into Mr. Clark’s car, and they drove around before heading to Freedlander’s

pool. In the car, A.C. and Mr. Clark were arguing about A.C.’s living arrangements, because

A.C. did not want to live with Mr. Clark and his girlfriend. When they got to the park, Mr. Clark

parked the car, and told A.C.’s two brothers to get out of the car and walk around. While he and

A.C. were still in the car, Mr. Clark smacked her with the back of his hand on her chest, and that

scared her because he had never hit her like that before. She got out of the car and ran up a hill,

until she had to stop because she was out of breath. Mr. Clark then came up behind A.C. and

grabbed her hair. A.C. described the harshness of the hair pull as a ten on a scale of one to ten.

She explained that she had never been hurt like that before, and it felt like someone was ripping
                                                 5


out her hair. He then started pulling her, and A.C. was screaming for help. One of her brothers

then told Mr. Clark to let go, which he did, and A.C. left with some lifeguards that had come to

help her.

       {¶10} A.C.’s testimony, when viewed in the light most favorable to the State, was

sufficient evidence to establish that Mr. Clark caused or attempted to cause physical harm to a

family or household member.        Accordingly, to the extent that Mr. Clark challenges the

sufficiency of the evidence, his assignment of error is overruled.

Manifest Weight of the Evidence

       {¶11} Mr. Clark further maintains that his conviction was against the weight of the

evidence. When a defendant asserts that his conviction is against the manifest weight of the

evidence:

       [A]n 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). In making this determination, this

Court is mindful that “[e]valuating the evidence and assessing credibility are primarily for the

trier of fact.” (Citations omitted.) State v. Shue, 97 Ohio App.3d 459, 466 (9th Dist.1994).

       {¶12} Here, Mr. Clark maintains that the testimony of the witnesses was inconsistent,

and that his testimony, along with that of his sons, established that he acted appropriately under

the circumstances.

       {¶13} In regard to parental discipline, the Ohio Supreme Court has held that R.C.

2919.25(A) does not preclude a parent from disciplining his child, but does prohibit a parent

from causing “‘physical harm’ as that term is defined in [former] R.C. 2901.01(C).” Suchomski,
                                                6


58 Ohio St.3d at 75. “‘Physical harm’ is defined as ‘any injury[.]’” Id., quoting former R.C.

2901.01(C), now R.C. 2901.01(A)(3) (“‘Physical harm to persons’ means any injury, illness, or

other physiological impairment, regardless of its gravity or duration.”).      An injury is “the

invasion of any legally protected interest of another.” (Emphasis sic.) (Quotation and citation

omitted.) Suchomski at 75. “A child does not have any legally protected interest which is

invaded by proper and reasonable parental discipline.” Id.

       {¶14} Here, as set forth in our discussion of the sufficiency of the evidence, A.C.

testified that her father hit her while they were in the car, and then pulled her hair with great

force as she was running away from him. On cross-examination, A.C. maintained that she was

not leaning over the center console or yelling in her father’s face when he hit her in the chest.

However, A.C. acknowledged that she does not like her father.

       {¶15} Along with the testimony of A.C., the State presented the testimony of Officer

Grabowski and three individuals who were in the park during the incident: Sarah Davis, Stacy

Marlar, and Heidi Wise. Officer Grabowski testified that on the date at issue he was dispatched

to Freedlander Park. When he arrived he spoke with A.C. and witnesses to the altercation.

Based upon the statements made by those individuals along with a visible mark on A.C.’s chest,

which she claimed was the result of being struck by Mr. Clark, Officer Grabowski arrested Mr.

Clark for domestic violence. Officer Grabowski identified a picture of A.C. showing the area of

her chest where she claimed her father had struck her, which was admitted into evidence.

Officer Grabowski maintained that, based upon his experience, the mark on A.C.’s chest was

consistent with being struck. The picture displays redness on the area of A.C.’s upper chest.

       {¶16} Ms. Davis testified that she was at the park on the date at issue and heard a girl

yell. She turned to see a frantic girl running in her direction, yelling for help. A man then came
                                                7


up behind the girl, and pulled her down by her hair. After she and others intervened, Ms. Davis

called the police.

       {¶17} Ms. Marlar testified that she was at the park on the day at issue and witnessed a

man punch a girl in the neck/chest area with a closed hand and then pull her by her hair. She

opined that the man used much more force than was necessary, and the girl was crying and

screaming. During the altercation, Ms. Marlar saw two boys trying to separate the man and girl.

On cross-examination, Ms. Marlar maintained that the man and girl were facing each other when

the man punched her. The girl then turned away, and the man pulled her by the hair toward him,

but did not pull her to the ground.

       {¶18} Ms. Wise testified that she was at the park with her family on the date at issue,

and she heard a “shrill scream.” After walking halfway across the parking lot, she saw a man

“pull a woman’s hair so hard” that she thought he had either “broken * * * or hyper-extended”

the woman’s neck. Ms. Wise informed lifeguards at the park’s pool that they needed to call 9-1-

1. Ms. Wise found the amount of force used by the man to be “astounding,” and would not

categorize the man’s action toward the woman as “discipline” but instead it appeared to be “a

beating.” On cross-examination, Ms. Wise stated that she did not see A.C. on the ground at all

during the altercation, and she was not sure if Mr. Clark had hit her, but she had seen his hand go

up by her neck area. Ms. Wise verified that two boys were yelling at them to stop.

       {¶19} The defense provided the testimony of Mr. Clark and his two sons who were

present during the incident. Mr. Clark testified that, after he picked up A.C., she was screaming

at him regarding issues pertaining to coming to live with him or going into foster care. She was

leaning over the center console, yelling, “What you gonna do, what you gonna do,” at him, while

her hands were in the air. He took her to the park to talk. She was still leaned over the center
                                                 8


console when he went to park his car, and he pushed her back in her seat. His push was

somewhat forceful because she was a larger girl. Thereafter, she said he would be in trouble for

hitting her, and she took off out of the car and started running up a hill. He chased after her, and

his sons followed them. Mr. Clark got in front of A.C. on a sidewalk, and she “smacked” into

him, causing him to fall to the ground and roll three times. Afterward, he got back up, and called

his fiancé to see if she could calm A.C. down. He then went over to A.C. and grabbed her by her

hair clip to get control of her, and he said they were going back to her grandmother’s, and he

pointed to the car. At that point, lifeguards came over to them and took A.C. with them to

another area. Mr. Clark maintained that he was not trying to hurt A.C. He loves his daughter

and believed that he used proper means of dealing with the situation. On cross-examination, Mr.

Clark maintained that he did not make a statement to police officers.

       {¶20} Mr. Clark’s fourteen-year-old son testified that, on the date at issue, A.C. was

sitting in the front seat when their father was driving them to the park. She was leaning over the

center console, screaming in her father’s face to hit her. When they got to the park, A.C. was

still yelling at Mr. Clark, and he took his hand and pushed her back into her seat and told her to

calm down, but he did not push her hard. Mr. Clark’s sons then got out of the car, and A.C. got

out and started running up a hill, crying and screaming for help. His father ran after her, and the

sons followed. When their father caught up with A.C., he pulled her hair clip and pointed to the

car, saying they were going back to A.C.’s grandmother’s house. She refused, and then went

onto the playground and screamed for help. A.C.’s brother believed she was overreacting and

acting “unruly” during the incident. On cross-examination, A.C.’s brother acknowledged that he

lives with his father and had spoken with his father once or twice about the incident, but he had

not spoken with his sister or grandmother since the day following the incident, which was about
                                                   9


five months prior to the trial. However, on redirect examination, he confirmed that his testimony

reflected what he saw and heard on the date at issue, and no one told him what to say during his

testimony.

        {¶21} A.C.’s twelve-year-old brother also testified as to the incident. He maintained

that, on the date at issue, he was sitting in the back seat of the car with his brother, after his father

picked up A.C. to go to Freedlander’s Park. On the way to the park, A.C. was leaning over the

center console yelling at her father, about two inches from his face, saying “What are you going

to do? You can’t do nothing to me. Hit me, hit me.” When they got to the park, Mr. Clark

could not put the car into park, and he pushed A.C. back in her seat so that he could put the car

into park. When they got out of the car, A.C. started running, and her father and brothers

followed her. The younger brother saw A.C. run over their father, and their father tried to grab

A.C.’s hair clip. The younger brother believed his sister was acting “unruly” that day. On cross-

examination, the younger brother acknowledged that he had spoken with his father about the

incident, and he had not spoken with A.C. or his grandmother since the incident. He further

acknowledged that he was scared that his father was going to go to jail.

        {¶22} The State called Officer Brandon Heim as a rebuttal witness. Officer Heim

testified that he responded to the call at the park. Mr. Clark had given him a statement after the

incident, in which he said that his daughter’s mouth was “just going” and he demonstrated to the

officer that he hit her with the back of his hand on her shoulder, and he told her to knock it off.

The officer maintained that Mr. Clark stated that, at some point, A.C. got out of the car and ran

off in the park. Mr. Clark chased after her, fell to the ground, got back up and continued chasing

her until he grabbed her by the hair to catch her. The officer maintained that Mr. Clark never

had told him that A.C. had run him over; instead, he indicated that he fell while chasing her.
                                                10


       {¶23} Mr. Clark maintains that his conviction was against the weight of the evidence

because the testimony of the witnesses at the park was inconsistent with A.C.’s testimony and

because Mr. Clark and his sons all testified that the Mr. Clark took necessary measures in the car

to safely put A.C. back in her seat.

       {¶24} Although there were discrepancies in the testimony of the witnesses “the jury is

free to believe all, part, or none of the testimony of each witness.” Prince v. Jordan, 9th Dist.

Lorain No. 04CA008423, 2004-Ohio-7184, ¶ 35, citing State v. Jackson, 86 Ohio App.3d 29, 33

(4th Dist.1993). This is because the jury “is best able to view witnesses and observe their

demeanor, gestures and voice inflections, and use these observations in weighing the credibility

of the proffered testimony.” State v. Cook, 9th Dist. Summit No. 21185, 2003-Ohio-727, ¶ 30

quoting Giurbino v. Giurbino, 89 Ohio App.3d 646, 659 (8th Dist.1993). Based upon the

testimony elicited at trial, we cannot say the jury’s resolution of the testimonial inconsistencies

was unreasonable. See State v. Peasley, 9th Dist. Summit No. 25062, 2010-Ohio-4333, ¶ 18,

citing State v. Morgan, 9th Dist. Summit No. 22848, 2006-Ohio-3921, ¶ 35 (“A conviction is not

against the manifest weight because the [trier of fact] chose to credit the State’s version of

events.”).

       {¶25} Further, A.C. testified that she was not leaning over the center console in the car,

and thus her father did not push her back in the seat, but instead struck her. Also, on appeal, Mr.

Clark disregards the evidence of the hair pull, which A.C. testified as the worst pain she had ever

experienced. See State v. Felder, 9th Dist. Lorain No. 91CA005230, 1992 WL 181016, *1 (July

29, 1992) (The jury “has the right to place considerable weight on the testimony of the victim.”).

Ms. Davis, Ms. Marlar, and Ms. Wise all witnessed the hair pull, which they believed was
                                                 11


excessive. Ms. Wise expressed the severity of the hair pull by concluding that it amounted to a

“beating” and that Mr. Clark had either broken or hyperextended A.C.’s neck.

       {¶26} After reviewing the entire record, weighing the inferences, and examining the

credibility of witnesses, we cannot say that the jury clearly lost its way and created a manifest

miscarriage of justice in determining that Mr. Clark knowingly caused physical harm to A.C. and

that his actions did not constitute reasonable and proper parental discipline.

       {¶27} Accordingly, Mr. Clark’s sole assignment of error is overruled.

                                                III.

       {¶28} Mr. Clark’s assignment of error is overruled. The judgment of the Wayne County

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 Wayne County

Municipal Court, County of Wayne, 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.
                                         12


      Costs taxed to Appellant.




                                              CARLA MOORE
                                              FOR THE COURT



HENSAL, P. J.
CARR, J.
CONCUR.


APPEARANCES:

JENNIFER A. ROBERTS, Attorney at Law, for Appellant.

DANIEL R. LUTZ, Prosecuting Attorney, and OLIVIA A. BOYER, Assistant Prosecuting
Attorney, for Appellee.
