[Cite as State v. Scott, 2015-Ohio-5397.]


                                         COURT OF APPEALS
                                      FAIRFIELD COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT


STATE OF OHIO                                   :   JUDGES:
                                                :
                                                :   Hon. William B. Hoffman, P.J.
       Plaintiff-Appellee                       :   Hon. Patricia A. Delaney, J.
                                                :   Hon. Craig R. Baldwin, J.
-vs-                                            :
                                                :   Case No. 15-CA-7
                                                :
JAMES E. SCOTT                                  :
                                                :
                                                :
       Defendant-Appellant                      :   OPINION


CHARACTER OF PROCEEDING:                            Appeal from the Fairfield County Court
                                                    of Common Pleas, Case No. 2014 CR
                                                    437



JUDGMENT:                                           AFFIRMED




DATE OF JUDGMENT ENTRY:                             December 21, 2015




APPEARANCES:

For Plaintiff-Appellee:                             For Defendant-Appellant:

GREGG MARX                                          AARON CONRAD
FAIRFIELD CO. PROSECUTOR                            120½ E. Main St.
ANDREA K. GREEN                                     Lancaster, OH 43130
239 W. Main St.
Lancaster, OH 43130
Fairfield County, Case No. 15-CA-7                                                     2

Delaney, J.

        {¶1} Appellant James E. Scott appeals from the January 30, 2015 Judgment

Entry of Sentence of the Fairfield County Court of Common Pleas. Appellee is the state

of Ohio.

                        FACTS AND PROCEDURAL HISTORY

        {¶2} Appellant is married to Lacy Scott and the couple have a child together.

They live in an up-and-down duplex in the city of Lancaster with the child, along with

two of appellant’s other stepchildren including T.A., age 16 at the time of these events.

Lacy’s son Dakota Anderson, an adult, lives in the bottom half of the duplex with friends

including Michael Callahan.     On October 25, 2014, around 1:00 a.m., Lacy and

appellant were in their home and Dakota and friends were in the garage. T.A. heard the

sounds of arguing, screaming, and dishes being thrown coming from the upper floor of

the duplex and went upstairs. She entered the kitchen and found Lacy on her back on

the floor with appellant crouched beside her, choking her with his hands around her

neck.

        {¶3} T.A. ran for help and Dakota and Callahan responded.          By this point

appellant and Lacy were arguing in the living room and Dakota attempted to step

between them. Appellant repeatedly struck Dakota about the head and face. In the

meantime, T.A. called 911. When she said police were coming, appellant ran out of the

house and hid in a neighbor’s yard.

        {¶4} Responding police officers observed red marks to Lacy’s neck and bumps

and bruises on Dakota’s face and head. They looked for appellant but were unable to

find him at that point. After police left, appellant returned to the residence to demand
Fairfield County, Case No. 15-CA-7                                                      3


his belongings and Lacy called 911. Appellant fled again but police found him hiding in

undergrowth in a yard nearby.

         {¶5} Appellant had a cut to his right shoulder which was caused by Lacy

stabbing him once with a steak knife. Lacy later testified this act was in self-defense in

the midst of appellant’s assault upon her; appellant testified the stabbing was the act

that initiated the chain of events.

         {¶6} Appellant was charged by indictment with two counts of domestic violence

pursuant to R.C. 2919.25(A), both felonies of the third degree pursuant to R.C.

2919.25(D)(4). The indictment notes Lacy is the victim of Count I and Dakota is the

victim of Count II. Both counts of the indictment further specify:

                     Furthermore, [appellant] was previously convicted of or

               pleaded guilty to two offenses of domestic violence or violations of

               section 2903.14, 2909.06, 2909.07, 2911.12, 2911.211, or 2919.22

               of the Revised Code or any offense of violence involving victims

               who were family or household members at the time of the

               commission of the offenses, to wit: June 18, 2004 in Akron

               Municipal Court, Summit County, Ohio, of R.C. section 2919.25(A),

               Domestic Violence, in Case No.: 04CRB06455 and October 3,

               2013 in Fairfield County Common Pleas Court, Fairfield County,

               Ohio, of R.C. Section 2919.25(A), (D)(3), Domestic Violence, in

               Case No.: 13-CR-0392.

         {¶7} Appellant entered pleas of not guilty and the case proceeded to bench

trial.
Fairfield County, Case No. 15-CA-7                                                     4


       {¶8} At trial, appellant did not challenge the second of the cited prior domestic

violence convictions. Appellee entered a certified copy of appellant’s conviction in the

Fairfield County Court of Common Pleas of domestic violence as a felony of the fourth

degree in case number 2013-CR-0392 [State’s Ex. 24]. Officer William Dotson of the

Lancaster Police Department testified on behalf of appellee that he was the arresting

officer in that case and that he charged appellant with domestic violence as a felony of

the fourth degree because he found a prior domestic violence conviction upon

appellant’s criminal history.

       {¶9} Appellant did challenge appellee’s evidence regarding the first domestic

violence conviction in Akron Municipal Court.     Appellee entered a certified copy of

documents from the Akron Municipal Court in case number 04 CRB 06455 [State’s Ex.

23]. The documents include the affidavit for complaint signed by Officer V. Tassiello

stating appellant grabbed the victim around the neck and pushed her against a door

after a verbal argument. The victim is described as a person living as a spouse and the

affidavit notes appellant was charged with one count of domestic violence pursuant to

Akron Codified Ordinance 135.16. Also attached is a “Plea of Guilty to Charge and

Waiver of Rights” signed by appellant indicating he entered a plea of guilty and his plea

was accepted by the trial court. The final document is an Akron Municipal Court journal

entry dated June 18, 2004 noting the case was disposed of by plea; 180 days of jail

were imposed with 166 suspended and credit given for 14 days served on the condition

appellant have no contact with the victim. The line of the judgment entry for “Count

One,” however, is blank—the judgment entry alone does not indicate what offense

appellant was convicted of.
Fairfield County, Case No. 15-CA-7                                                           5


       {¶10} Appellee also called Officer Tassiello as a witness at trial.         Tassiello

testified he took the report regarding the domestic violence incident and sought a

warrant for appellant’s arrest. He was not present when the case was disposed of by

plea but he personally obtained the certified copy of the case disposition from the Akron

Municipal Court. Tassiello acknowledged the judgment entry of conviction does not

state what charge appellant was found guilty of.

       {¶11} Appellant testified on his own behalf and acknowledged he has a number

of felony convictions. On cross examination, the prosecutor asked appellant whether he

was convicted of domestic violence in Akron Municipal Court and he responded “I

believe so.” The prosecutor clarified whether the offense was a misdemeanor of the

first degree and appellant responded, “I don’t recall for sure. Yeah, sure.” (T. II, 556.)

       {¶12} Appellant then acknowledged a March 12, 2009 felony domestic violence

conviction in Franklin County. At first appellant said he did not recall what the offense

was, but the prosecutor confronted him with a judgment entry and the following

testimony was presented:

              * * * *.

              [PROSECUTOR]:        On March 12, 2009, you don’t recall being

              convicted of domestic violence, a felony of the fifth degree, in

              Franklin County?

              [APPELLANT]: I’m not sure, ma’am.

              [PROSECUTOR]:        Would seeing a judgment entry refresh your

              recollection with regard to that?

              [APPELLANT]: That it could.
Fairfield County, Case No. 15-CA-7                                                    6


             * * * *. [Prosecutor presents appellant with document.]

             [PROSECUTOR]: I’ll repeat the question now that you’ve had a

             chance to review that.

                        Is it true that on March 12, 2009, you were convicted of

             domestic violence in the Franklin County Court of Common Pleas?

             [APPELLANT]: Yes.

             [PROSECUTOR]: And is it true that that was a felony of the fifth

             degree?

             [APPELLANT]: That’s what it states, yes.

             [PROSECUTOR]: And is it also true that on October 3, 2013, that

             you were convicted of domestic violence here in Fairfield County?

             [APPELLANT]: Yes.

             [PROSECUTOR]: And that was a felony of the fourth degree?

             [APPELLANT]: Correct.

             [PROSECUTOR]:          So you have a total of three prior domestic

             violence convictions; right?

             [APPELLANT]: I believe that’s what it is, yes.

             * * * *.

             T. II, 557-558.

      {¶13} The copy of the Franklin County conviction is not evidence.

      {¶14} At the close of appellee’s evidence and at the close of all of the evidence,

appellant moved for a judgment of acquittal pursuant to Crim.R. 29(A) on the basis that
Fairfield County, Case No. 15-CA-7                                                      7


appellee had not offered sufficient proof of the prior domestic violence conviction in

Akron. The trial court overruled the motions and appellant was found guilty as charged.

       {¶15} Appellant now appeals from the judgment entry of conviction and

sentence of the trial court.

       {¶16} Appellant raises one assignment of error:

                               ASSIGNMENT OF ERROR

       {¶17} “THE COURT ERRED IN FINDING THERE WAS SUFFICIENT

EVIDENCE TO PROVE DEFENDANT HAD TWO OR MORE PRIOR CONVICTIONS

FOR DOMESTIC VIOLENCE, AND THUS ERRED IN CONVICTING DEFENDANT

FOR DOMESTIC VIOLENCE AS A THIRD DEGREE FELONY.”

                                       ANALYSIS

       {¶18} In his sole assignment of error, appellant argues appellee presented

insufficient evidence of two or more prior convictions of domestic violence.          We

disagree.

       {¶19} The standard of review for a challenge to the sufficiency of the evidence is

set forth in State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two

of the syllabus, in which the Ohio Supreme Court held, “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.”
Fairfield County, Case No. 15-CA-7                                                         8


       {¶20} In this case, appellant was found guilty upon two counts of domestic

violence, both felonies of the fourth degree.         R.C. 2919.25(A) and (D)(4) state in

pertinent part:

              (A) No person shall knowingly cause or attempt to cause physical

                   harm to a family or household member.

              * * * *.

              (D)(1) Whoever violates this section is guilty of domestic violence,

              and the court shall sentence the offender as provided in divisions

              (D)(2) to (6) of this section.

              * * * *.

              (4) If the offender previously has pleaded guilty to or been

              convicted of two or more offenses of domestic violence or two or

              more violations or offenses of the type described in division (D)(3)

              of this section involving a person who was a family or household

              member at the time of the violations or offenses, a violation of

              division (A) or (B) of this section is a felony of the third degree * * *.

              * * * *.

       {¶21} In this appeal, appellant challenges only appellee’s evidence as to the

prior domestic violence conviction in the Akron Municipal Court. Having viewed the

evidence in the light most favorable to appellee, we find the trial court could rationally

find sufficient evidence of this prior conviction.

       {¶22} If the existence of a prior offense is an element of a subsequent crime, the

state must prove the prior conviction beyond a reasonable doubt and the factfinder must
Fairfield County, Case No. 15-CA-7                                                       9


find the previous conviction has been established in order to find the defendant guilty on

the subsequent offense. State v. Day, 99 Ohio App.3d 514, 517, 651 N.E.2d 52 (12th

Dist.1994). “Whenever in any case it is necessary to prove a prior conviction, a certified

copy of the entry of judgment in such prior conviction together with evidence sufficient to

identify the defendant named in the entry as the offender in the case at bar, is sufficient

to prove such prior conviction.” R.C. 2945.75(B)(1).      Additional evidence beyond a

certified copy of a conviction must be offered. State v. King, 5th Dist. Stark No.

1999CA0064, unreported, 2000 WL 530048, *4 (Mar. 13, 2000), citing State v. Blonski,

125 Ohio App.3d 103, 109, 707 N.E.2d 1168 (9th Dist.1997). R.C. 2945.75 sets forth

one way, but not the exclusive way, of proving prior convictions. State v. Chaney, 128

Ohio App.3d 100, 105, 713 N.E.2d 1118 (12th Dist.1998).

       {¶23} Despite a technical error in a judgment entry or in absence of one, the

state can prove existence of a prior conviction through testimony at trial that links the

defendant to a prior conviction. State v. Harrington, 3rd Dist. Logan No. 8-01-20, 2002-

Ohio-2190, ¶ 11.

       {¶24} In the instant case, a technical error exists in the certified copy of the

judgment entry entered as appellee’s Ex. 23: the charge appellant pleaded to is omitted

from the finding of guilt and sentence. The judgment entry alone establishes appellant

was convicted of a first degree misdemeanor and his sentence included a no-contact

order with the victim. The affidavit in support of the criminal complaint in the case

establishes the charge was domestic violence, as signed by Officer Tassiello and as

testified to by Tassiello.
Fairfield County, Case No. 15-CA-7                                                       10


       {¶25} Moreover, appellant was subsequently convicted of not one but two felony

domestic violence charges in two separate instances, both predicated upon the Akron

conviction: the Franklin County case and the Fairfield County case.

       {¶26} Finally, appellant admitted to having three prior domestic violence

convictions. This case is thus distinguishable from appellant’s cited authority, State v.

Gwen, in which the Ninth District Court of Appeals found the state’s evidence of a prior

conviction to be insufficient where the evidence only established the initial charge and

not the case disposition. 9th Dist. Summit No. 25218, 2011-Ohio-1512, ¶ 28 aff'd, 134

Ohio St.3d 284, 2012-Ohio-5046, 982 N.E.2d 626. As the appellate court remarked,

“there was no direct testimony that the defendant was convicted of or pled guilty to

domestic violence.” Id. at ¶ 28, citing State v. Ferguson, 3rd Dist. Union No. 14-02-14,

2003-Ohio-866 [arresting officer’s testimony provides sufficient evidence for factfinder

that defendant was previously convicted of the offense even though the journal entry

does not provide a finding of guilt.]

       {¶27} In affirming the judgment of the lower court, the Ohio Supreme Court

found that when, pursuant to R.C. 2945.75(B)(1), the state chooses to offer judgment

entries to prove the element of prior domestic-violence convictions in order to increase

the offense level of a later domestic-violence charge under R.C. 2919.25(D)(4), the

judgments must comply with Crim.R. 32(C). In that event, the judgment entry must set

forth (1) the fact of a conviction, (2) the sentence, (3) the judge's signature, and (4) the

time stamp indicating the entry upon the journal by the clerk. State v. Gwen, 134 Ohio

St.3d 284, 290, 2012-Ohio-5046, 982 N.E.2d 626, 632, ¶ 23, citing State v. Lester, 130

Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, paragraph one of the syllabus,
Fairfield County, Case No. 15-CA-7                                                 11

explaining Crim.R. 32(C), and modifying State v. Baker, 119 Ohio St.3d 197, 2008-

Ohio-3330, 893 N.E.2d 163.

       {¶28} The Court noted, though, that the state may opt to use other methods to

establish the prior conviction. In fact, “[t]he defendant’s own admission that he had

been convicted of domestic violence in the case to which that entry referred proves at

least one prior offense.” Gwen, supra, 2012-Ohio-5046 at ¶ 21.

       {¶29} We conclude that despite the flaw in the Akron Municipal Court judgment

entry, appellee presented sufficient evidence of at least two prior domestic violence

convictions. Having examined the evidence admitted at trial to determine whether such

evidence, if believed, would convince the average mind of appellant’s guilt beyond a

reasonable doubt, we find his conviction upon two counts of domestic violence as

felonies of the third degree are supported by sufficient evidence .

       {¶30} Appellant’s sole assignment of error is overruled.
Fairfield County, Case No. 15-CA-7                                            12


                                     CONCLUSION

       {¶31} Appellant’s assignment of error is overruled and the judgment of the

Fairfield County Court of Common Pleas is affirmed.

By: Delaney, J. and

Hoffman, P.J.

Baldwin, J., concur.
