[Cite as State v. Morris, 2017-Ohio-1514.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     TRUMBULL COUNTY, OHIO


STATE OF OHIO,                                  :       OPINION

                 Plaintiff-Appellee,            :
                                                        CASE NO. 2016-T-0026
        - vs -                                  :

ROBERT J. MORRIS, II,                           :

                 Defendant-Appellant.           :


Criminal Appeal from the Warren Municipal Court, Case No. 2015 CRB 002518.

Judgment: Affirmed.


Gregory V. Hicks, Warren City Law Director, and David G. Lake, Assistant Law
Director, 391 Mahoning Avenue, N.W., Warren, OH 44483 (For Plaintiff-Appellee).

Michael A. Partlow, 112 South Water Street, Suite C. Kent, OH 44240 (For Defendant-
Appellant).



THOMAS R. WRIGHT, J.


        {¶1}     Appellant, Robert J. Morris, II, appeals his conviction for misdemeanor

domestic violence as being against the manifest weight of the evidence. We affirm.

        {¶2}     Appellant was charged with one count of domestic violence, a first-degree

misdemeanor in violation of R.C. 2919.25(A). The complaint alleges that he knowingly

caused, or attempted to cause, physical harm to his mother, Mary Lee Morris. A bench

trial ensued. Appellant’s mother, appellant, and Sergeant Peterson testified. Appellant
was found guilty and sentenced.

       {¶3}   Appellant raises one assignment of error:

       {¶4}   “The appellant’s conviction is against the manifest weight of the evidence.”

       {¶5}   A transcript of the trial cannot be provided because the trial court’s

electronic taping system malfunctioned. The record, therefore, consists of a statement

of the evidence submitted at trial as approved by the trial court in accordance with

App.R. 9(C). The statement of evidence provides:

       {¶6}   “Mary Morris, the alleged victim and mother of Defendant, was the first

witness to testify on behalf of the State of Ohio. She stated that the incident which gave

rise to the charges occurred at her home in Warren Township, Trumbull County, State

of Ohio. On September 25, 2015, at around 2:00 AM, she was watching television in

her home. The Defendant then came into the home and began discussing a dog owned

by the witness which had fatally injured a cat that also lived on the property. The

Defendant resides in a trailer located on the same property as the alleged victim. When

the alleged victim got up and attempted to go into the kitchen, the Defendant hit her in

the head and she fell to the ground. The witness testified that the Defendant hit her with

a ‘heavy hand.’ The witness believed that she had been hit two times. When the

witness tried [to] get up, she fell and struck her nose on the table and it began to bleed.

The witness testified that she began crying and felt like a ‘sissy.’

       {¶7}   “On cross-examination, the alleged victim, after some hedging, testified

that she did have an infection in her foot that had occasionally caused her to fall. When

confronted with a variety of photographs depicting the victim lying on the ground that

were taken sometime in June and July, she did admit that she had fallen on various




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occasions but could not remember the dates.        Ultimately, the Court precluded the

Defendant from continuing to question this witness concerning certain * * * photographs

that were taken months ago in which she had fallen and prohibited the Defendant from

introducing further photographs as they had no bearing in the case at bar. At that

juncture, the Defendant discontinued questioning the witness and the Plaintiff did no

redirect.

       {¶8}   “The Plaintiff next called Sergeant Daniel Peterson of the Warren

Township Police Department to testify. This witness indicated that on September 25,

2015 at 12:44 AM, he was dispatched to 3341 Palmyra Road in Warren Township. He

identified the Defendant as being at the premises when he arrived.         Dispatch had

informed [the] officer that the individual calling the department had indicated she was

being assaulted by her son. When the officer first arrived on the scene, the Defendant

was the first to speak with [him]. The Defendant indicated to the officer that he was

upset because his mother had permitted our dogs to run around the premises

unchained and, as a result, a cat had been killed. The officer then came into contact

with the alleged victim. The officer testified that the victim had marks on her face and

neck and that he saw blood on her. The officer testified that he saw the area of the

house where the alleged incident had occurred and there was blood on the kitchen

table, a burner from the stove on the floor or table, and a broken dish was present. The

officer also indicated that the alleged victim did have an injury to her foot and had a

plastic bag wrapped around it. Over objections, the officer was permitted to testify that

the injuries he observed on the alleged victim were consistent with someone who had

been punched or hit. He also indicated that the Defendant admitted to him that he had




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hit the stove, but denied hitting his mother.

       {¶9}   “On cross-examination, the officer readily admitted that he was not aware

that the alleged victim had fallen on numerous occasions in the past and did not

consider that as a source of her injuries.

       {¶10} “* * *

       {¶11} “The Defendant then testified on his own behalf. The Defendant agreed

that he had confronted his mother concerning the situation with dogs and a cat. He also

indicated that he had on numerous occasions in the past requested that his mother

chain up her dogs. He had knowledge that when he had slammed his fist on the stove

a dish had broken. However, he flatly denied hitting or assaulting his mother. He

testified that her injuries were likely the result of numerous falls she experienced due to

a damaged foot. He also indicated that on numerous occasions in the past, when she

had fallen and he tried to help her up, she became very aggressive. He also clarified

that the pictures that he had attempted to employ to impeach his mother and attempted

to introduce into evidence, accurately depicted various occasions where his mother had

fallen and he had found her on the ground. He always attempted to help her get up,

despite the fact that she would sometimes be hostile in that regard.”

       {¶12} In claiming that his conviction is against the manifest weight of the

evidence, appellant argues that the trial court erred in believing his mother as opposed

to him. While admitting that he was upset with his mother over the death of the cat,

appellant asserts that the trial court should have believed his testimony that he did not

strike his mother.

       {¶13} As part of her trial testimony, appellant’s mother stated that appellant hit




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her on the head with a heavy hand as she was walking to the kitchen, causing her to fall

to the floor. Although, on cross-examination, mother hesitated to admit that she had an

infected foot which has caused her to fall in the past, she did not recant or alter her

testimony that appellant struck her in the head.

      {¶14} Appellant notes that his mother said that when she initially tried to get up,

she again fell hitting her nose on a table, causing it to bleed. Appellant maintains that

this testimony supports his assertion that her original fall was due her infected foot, not

from physical contact with him. Although mother did not attribute her second fall to

appellant, she likewise did not attribute it to her injured foot or any other cause. More

importantly, that appellant’s mother fell a second time does not lend any credibility to

appellant’s contention that the first fall was due solely to her injured foot. Furthermore,

even if the evidence were that the second fall was caused by her injured foot, this still

would not render her testimony that appellant’s punch caused the first fall incredulous.

      {¶15} Taken as a whole, mother’s testimony did not have any inherent

inconsistencies. Moreover, other evidence supports her version. Sergeant Peterson

testified that appellant admitted to him that he was upset with his mother over the death

of the cat when he confronted her. Appellant also admitted this at the trial. There is,

likewise, no dispute that appellant broke a dish during the confrontation. Last, Sergeant

Peterson testified that appellant’s mother looked like she had just been hit or punched.

      {¶16} Appellant also takes issue that his mother’s testimony conflicts with that of

Sergeant Peterson as to when the incident occurred. Sergeant Peterson testified that

he was dispatched to mother’s residence at 12:44 a.m., while she stated that the

confrontation took place around 2:00 a.m. Given that the mother was hit in the head by




                                            5
her son, fell to the floor, and then hit her nose on the kitchen table so hard that she bled,

confusion as to the exact time of the incident is understandable. Furthermore, the exact

time of the incident is not crucial.

       {¶17} “To determine whether a verdict is against the manifest weight of the

evidence, a reviewing court must consider the weight of the evidence, including the

credibility of the witnesses and all reasonable inferences, to determine whether the trier

of fact ‘“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, 78 Ohio

St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v. Martin, 20 Ohio App.3d 172,

175, 485 N.E.2d 717 (1st Dist.1983). ‘This Court [is] not in a position to view witnesses

who testified below and observe their demeanor, gestures and voice inflections, and

use those observations in weighing the credibility of the proffered testimony.’ State v.

Long, 127 Ohio App.3d 328, 335, 713 N.E.2d 1 (4th Dist.1998) (citations omitted).

Therefore, in weighing the evidence submitted at a criminal trial, an appellate court must

give substantial deference to the factfinder’s determinations of credibility.       State v.

Tribble, 2d Dist. Montgomery No. 24231, 2011-Ohio-3618, 2011 WL 2976890, ¶30,

citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the

syllabus.” State v. Thompson, 11th Dist. Trumbull No. 2015-T-0087, 2016-Ohio-7154,

¶7.

       {¶18} Appellant has failed to establish that the trial court lost its way in believing

mother’s version over his.       Moreover, if believed, mother’s testimony satisfies all

elements of domestic violence. A person is guilty of domestic violence if he knowingly

causes, or attempts to cause, physical harm to a family or household member. R.C.




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2919.25(A).

      {¶19} Appellant’s conviction is not against the manifest weight of the evidence.

As such, his sole assignment of error is without merit and the judgment of the Warren

Municipal Court is affirmed.



DIANE V. GRENDELL, J.,

COLLEEN MARY O’TOOLE, J.,

concur.




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