[Cite as State v. Wolfe, 2015-Ohio-3455.]


                                        COURT OF APPEALS
                                   TUSCARAWAS COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                      JUDGES:
STATE OF OHIO                                 :       Hon. W. Scott Gwin, P.J.
                                              :       Hon. Sheila G. Farmer, J.
                         Plaintiff-Appellee   :       Hon. Craig R. Baldwin, J.
                                              :
-vs-                                          :
                                              :       Case No. 2015 AP 0012
JOSHUA WOLFE                                  :
                                              :
                     Defendant-Appellant      :       OPINION




CHARACTER OF PROCEEDING:                          Criminal appeal from the New Philadelphia
                                                  Municipal Court, Case No. CRB1401335A-
                                                  B




JUDGMENT:                                         Affirmed


DATE OF JUDGMENT ENTRY:                           August 25, 2015

APPEARANCES:

For Plaintiff-Appellee                            For Defendant-Appellant

DOUGLAS JACKSON                                   NICOLE STEPHAN
Dover Prosecuting Attorney                        Assistant Public Defender
339 Oxford St.                                    153 N. Broadway
Dover, OH 44622                                   New Philadelphia, OH 44663
Tuscarawas County, Case No. 2015 AP 0012                                                  2

Gwin, P.J.

       {¶1}   Appellant Joshua Wolfe ["Wolfe"] appeals his conviction and sentence for

one count of domestic violence, a misdemeanor of the first degree in violation of R.C.

2903.13(A) after a bench trial in New Philadelphia Municipal Court.

                                  Facts and Procedural History

       {¶2}   Wolfe and Stephanie Chambers have a child. On November 28, 2014,

Wolfe went to Chambers' home to retrieve clothing for the child. Wolfe testified he had

their son with him and that he was suppose to keep him through the night, as Ms.

Chambers had to work. The couple had been arguing that day.

       {¶3}   Wolfe went inside while the child remained in the vehicle. While inside

Wolfe took a cell phone from Chambers. Wolfe testified that the phone was on his plan

and he paid for the service. As the couple continued to argue, Wolfe left the house.

Chambers followed Wolfe to his truck. Chambers was attempting to open the door and

remove the child from the vehicle. Wolfe's hand went on Chambers' chest and pushed

her on the ground. He then threatened to punch Chambers. Chambers testified that

Wolfe pushed her out of the way hard enough that she fell on the ground. She then

testified that after he said he was going to punch her she told him to do it and kept

telling him to do it and that he would go to jail and that she knew he would go to jail. Ms.

Chambers agreed that Mr. Wolfe was just trying to leave and once he pushed her out of

the way he closed the door of his truck and then left.

       {¶4}   Wolfe admitted that he pushed Chambers back out of the way so he could

get the door of the vehicle shut and lock it so he could leave. Wolfe was sitting in the

truck when he pushed Chambers. He was able to get the door shut and locked so he
Tuscarawas County, Case No. 2015 AP 0012                                            3


could leave. When questioned about the threat of punching, Wolfe testified he told Ms.

Chambers she could make a saint want to punch her in the face because she does not

stop. It just keeps going and going and going. Wolfe testified that Ms. Chambers had

another phone, other than the one he took, and that within minutes of him leaving the

house after the altercation, she began to text him.

      {¶5}    On November 28, 2014, Wolfe was charged with Domestic Violence, a

violation of Ohio Revised Code 2919.25, and Assault, a violation of Ohio Revised Code

2903.13(A).

      {¶6}    At the conclusion of the evidence, the court found Wolfe guilty of the

domestic violence charge, and dismissed the assault charge. The Court sentenced

Wolfe to serve 180 days in jail, suspended all 180 days, for a 24-month term of

community control sanctions and to have no contact with Stephanie Chambers.

                                     Assignments of Error

      {¶7}    Wolfe raises two assignments of error,

      {¶8}    "I. THE CONVICTION FOR DOMESTIC VIOLENCE, A VIOLATION OF

OHIO REVISED CODE SECTION 2919.25(A), WAS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.

      {¶9}    "II. II. THE   CONVICTION     FOR       DOMESTIC    VIOLENCE   IS   NOT

SUPPORTED BY SUFFICIENT EVIDENCE."

                                            Analysis

      {¶10} Wolfe's first and second assignments of error raise common and

interrelated issues; therefore, we will address the arguments together.
Tuscarawas County, Case No. 2015 AP 0012                                                   4


       {¶11} In his first assignment of error, Wolfe contends his conviction is against

the manifest weight of the evidence produced by the state at trial. In his second

assignment of error, Wolfe challenges the sufficiency of the evidence.

       {¶12} 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, 558 U.S. 120, 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 (5th Dist.), ¶68.

       {¶13} 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. Weight of the evidence concerns “the

inclination of the greater amount of credible evidence, offered in a trial, to support one

side of the issue rather than the other. It indicates clearly to the jury that the party

having the burden of proof will be entitled to their verdict, if, on weighing the evidence in

their minds, they shall find the greater amount of credible evidence sustains the issue,

which is to be established before them. Weight is not a question of mathematics, but

depends on its effect in inducing belief.” (Emphasis sic.) Id. at 387, 678 N.E.2d 541,

quoting Black's Law Dictionary (6th Ed. 1990) at 1594.
Tuscarawas County, Case No. 2015 AP 0012                                                      5


       {¶14} 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 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.

              “[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.

                                             ***

              “If the evidence is susceptible of more than one construction, the

       reviewing court is bound to give it that interpretation which is consistent

       with the verdict and judgment, most favorable to sustaining the verdict and

       judgment.”

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 60, at 191–192 (1978).
Tuscarawas County, Case No. 2015 AP 0012                                                   6


       {¶15} To find Wolfe 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). R.C. 2901.22 Culpable mental

states, provides:

              A person acts knowingly, regardless of purpose, when the person is

       aware that the person’s conduct will probably cause a certain result or will

       probably be of a certain nature. A person has knowledge of circumstances

       when the person is aware that such circumstances probably exist. When

       knowledge of the existence of a particular fact is an element of an offense,

       such knowledge is established if a person subjectively believes that there

       is a high probability of its existence and fails to make inquiry or acts with a

       conscious purpose to avoid learning the fact.

       Wolfe does not dispute that at all relevant times Chambers was a family or

household member, or a person living as a spouse.
Tuscarawas County, Case No. 2015 AP 0012                                                  7


       {¶16} In the case art bar, Chambers testified that Wolfe pushed her and she fell

to the ground. Chambers further testified that it hurt and that she had marks on her

hands and legs.

       {¶17} Viewing the evidence in a light most favorable to the prosecution, we

conclude that a reasonable person could have found beyond a reasonable doubt that

Wolfe committed the crime of domestic violence. We hold, therefore, that the state met

its burden of production regarding each element of the crime of domestic violence and,

accordingly, there was sufficient evidence to support Wolfe’s conviction.

       {¶18} Wolfe argues that he acted in self-defense. Self-defense is a “confession

and avoidance” affirmative dense 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.

       {¶19} 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
Tuscarawas County, Case No. 2015 AP 0012                                                 8


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).

      {¶20} In the case at bar, the trial court found,

             Okay, I think there's been a lot of different stories told here and a lot

      of different reasons and a lot of different explanations and I agree with

      Miss Stephan that Stephanie's probably not the most credible witness in

      the world, but I can't sit here and say, we just had a similar case last week,

      very similar. In fact they were fighting over trying to get in the car. There

      wasn't a baby in the car but, and I found the defendant not guilty based on

      self-defense because I felt like he really had not created the situation at

      all, which is one of the elements of self-defense is you cannot have

      created the situation, and that isn't the case here. I don't think that's the

      case here and I do think that he did shove her and he did threaten her and

      so I'm going to find you guilty, Josh, of domestic violence.

             You know, there's about a million things you could have done to

      avoid this. First of all, I asked you the questions about why you went back

      over there because I just, I wanted to know why did you have to go back
Tuscarawas County, Case No. 2015 AP 0012                                                9


       over there? You didn't. You guys were arguing, I'm sure you knew better,

       in hindsight.

                                           ***

               Okay, and yet even though I ordered you not to have any contact

       with her in this case as a condition of your bond that you could have went

       and sat in jail? You still can't, you just, you know, at some point you got to

       just tell yourself it's too crazy, it's not good for the kid. So he needs to

       come in for sentencing.

               I mean I'm not blind to what's going on here, but you — she's not

       the only responsible one as far as creating these situations. There was no

       reason for you to go over to that house that day. You didn't need clothes,

       you didn't need diapers, you didn't need nothing. You just went over there

       to make trouble with her and take her phone and she was just pushing

       your buttons, and you guys had the bad idea to bring a baby into the midst

       of this craziness.

T. at 29-30.

       {¶21} 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 weight of the evidence. C.E. Morris Co. v. Foley Construction, 54 Ohio St.2d
Tuscarawas County, Case No. 2015 AP 0012                                                      10


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).

       {¶22} 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).

       {¶23} 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-
Tuscarawas County, Case No. 2015 AP 0012                                               11

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).

      {¶24} 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.

      {¶25} 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 Wolfe of the charges.

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

Wolfe's conviction is not against the sufficiency or the manifest weight of the evidence.

To the contrary, the judge appears to have fairly and impartially decided the matters
Tuscarawas County, Case No. 2015 AP 0012                                                 12


before him. The judge as a trier of fact can reach different conclusions concerning the

credibility of the testimony of the state’s witnesses and Wolfe. This court will not disturb

the trier of facts 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 Wolfe's guilt.

       {¶27} 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.

       {¶28} Wolfe's first and second assignments of error are overruled.

       {¶29} For the foregoing reasons, the judgment of the New Philadelphia

Municipal Court, Tuscarawas County, Ohio is affirmed.

By Gwin, P.J.,

Farmer, J., and

Baldwin, J., concur
