[Cite as State v. Marshall, 2017-Ohio-9269.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                               MADISON COUNTY




STATE OF OHIO,                                       :
                                                            CASE NO. CA2016-11-031
        Plaintiff-Appellee,                          :
                                                                 OPINION
                                                     :           12/28/2017
    - vs -
                                                     :

JEREMY J. MARSHALL,                                  :

        Defendant-Appellant.                         :



             CRIMINAL APPEAL FROM MADISON COUNTY MUNICIPAL COURT
                               Case No. CRB1600311



Stephen J. Pronai, Madison County Prosecuting Attorney, Kirsten Gross, 59 North Main
Street, London, Ohio 43140, for plaintiff-appellee

Shannon M. Treynor, 63 North Main Street, P.O. Box 735, London, Ohio 43140, for
defendant-appellant



        M. POWELL, J.

        {¶ 1} Defendant-appellant, Jeremy Marshall, appeals from his domestic violence

conviction in the Madison County Municipal Court. For the reasons discussed below, this

court affirms Marshall's conviction.

        {¶ 2} On April 29, 2016, the Madison County Sheriff's Office filed a complaint

charging Marshall with one count of domestic violence, a violation of R.C. 2919.25(C), a
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fourth-degree misdemeanor. The complaint arose after Marshall called 9-1-1 and alleged

that his mother kicked him during a fight. A responding deputy determined that Marshall was

the primary aggressor and arrested him.

       {¶ 3} The matter proceeded to a bench trial in October 2016. The state introduced

testimony from Kathleen Marshall (Marshall's mother), Beth Ann Marshall (Marshall's sister),

and the responding deputy. The court found Marshall guilty. Marshall appeals, raising four

assignments of error. For ease of analysis, we address certain assignments of error

collectively and out of order.

       {¶ 4} Assignment of Error No. 3:

       {¶ 5} THE PROSECUTION FAILED TO PRESENT SUFFICIENT EVIDENCE TO

SUPPORT A CONVICTION, BY FAILING TO MEET ALL THE ELEMENTS OF THE

OFFNESE BY PROOF BEYOND A REASONABLE DOUBT.

       {¶ 6} Assignment of Error No. 4:

       {¶ 7} THE DEFENDANT'S CONVICTION IS AGAINST THE MANIFEST WEIGHT OF

THE EVIDENCE.

       {¶ 8} In his third and fourth assignments of error Marshall challenges the sufficiency

and the weight of the evidence supporting his conviction. Marshall argues that the state

failed to submit sufficient evidence that he committed a threatening act towards Kathleen or

that Kathleen believed that Marshall would cause her physical harm. Marshall otherwise

argues that his conviction was not supported by the weight of the evidence because the court

found that Kathleen was not afraid of Marshall.

       {¶ 9} When reviewing the sufficiency of the evidence underlying a criminal conviction,

an appellate court examines the evidence to determine whether such evidence, if believed,

would convince the average mind of the defendant's guilt beyond a reasonable doubt. State

v. Bradbury, 12th Dist. Butler No. CA2015-06-111, 2016-Ohio-5091, ¶ 16. The "relevant
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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.

       {¶ 10} A manifest weight of the evidence challenge, on the other hand, examines the

"inclination of the greater amount of credible evidence, offered at a trial, to support one side

of the issue rather than the other." State v Barnett, 12th Dist. Butler No. CA2011-09-177,

2012-Ohio-2372, ¶ 14. To determine whether a conviction is against the manifest weight of

the evidence, the reviewing court must look at the entire record, weigh the evidence and all

reasonable inferences, consider the credibility of the witnesses, and determine whether in

resolving the 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.

Id. An appellate court will overturn a conviction due to the manifest weight of the evidence

only in extraordinary circumstances when the evidence presented at trial weighs heavily in

favor of acquittal. Id. at ¶ 18. A "determination that a conviction is supported by the manifest

weight of the evidence will also be dispositive of the issue of sufficiency." State v. Jones,

12th Dist. Butler No. CA2012-03-049, 2013-Ohio-150, ¶ 19.

       {¶ 11} The court convicted Marshall of domestic violence in violation of R.C.

2919.25(C), which provides that "[n]o person, by threat of force, shall knowingly cause a

family or household member to believe that the offender will cause imminent physical harm to

the family or household member." "Physical harm," as defined by R.C. 2901.01(A)(3),

"means any injury, illness, or other physiological impairment, regardless of its gravity or

duration." For a violation of R.C. 2919.25(C), the state must prove that the victim believed

the offender would cause him or her imminent physical harm at the time the incident took

place. State v. Hart, 12th Dist. Warren No. CA2008-06-079, 2009-Ohio-997, ¶ 21, citing

State v. Campbell, 12th Dist. Butler No. CA2007-12-313, 2008-Ohio-5542, ¶ 15, in turn citing
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Hamilton v. Cameron, 121 Ohio App.3d 445, 449 (12th Dist.1997). Thus, the victim's state of

the mind is an essential element of the crime. Hamilton at 449.

        {¶ 12} Kathleen testified that she was at her daughter Beth Ann's home on April 29,

2016. Marshall was her son and he lived with Beth Ann. Kathleen and Marshall did not get

along and when there were arguments, Kathleen always got the "brunt of it." That day,

Marshall and Beth Ann were quarrelling because Beth Ann asked him to move out of her

home. Marshall was irate and was outside of the home using scissors to destroy loose

gutters that were to be installed on the house.

        {¶ 13} Kathleen, Beth Ann, and Beth Ann's child went into a bedroom in the home and

locked the door. Kathleen explained that she wanted to separate herself from Marshall, even

though the argument did not involve her. Marshall came back inside. He then threatened

that he would commit suicide and that Beth Ann would come home to blood everywhere.

Kathleen responded by yelling that Marshall would never babysit Beth Ann's son alone again.

        {¶ 14} Marshall managed to unlock the bedroom door, possibly with the scissors he

had been using to destroy the gutters. He entered the room and approached Kathleen in

"attack mode." Kathleen, who had been sitting on the bed, stood up as he approached.

Marshall then put his forehead against Kathleen's forehead and forced her back on to the

bed. He was on top of her "on all fours." Kathleen testified that she was afraid because she

was not sure if Marshall would hit her.1 Kathleen pulled her knees up as a barrier between

she and her son, "[t]o keep him from crushing me, to keep him from whatever he was going

to do." Kathleen eventually pushed Marshall away using her feet, then she kicked him. Beth

Ann corroborated that Marshall was on top of Kathleen and that he "got into my mother's



1. Kathleen also testified that she was afraid that Marshall would use the scissors on her. The testimony at trial
was inconsistent as to whether Marshall was holding scissors during the physical altercation. Beth Ann recalled
seeing them sitting on a box. The court found that Marshall did not have scissors in his hands during the
altercation.
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space."

         {¶ 15} After thoroughly reviewing the record, this court concludes that the trial court did

not lose its way in finding Marshall guilty of domestic violence in violation of R.C. 2919.25(C).

The evidence, if believed, would allow a rational factfinder to conclude, beyond a reasonable

doubt, that the circumstances supported a finding that Marshall would know that aggressively

approaching his mother and forcing her onto the bed using his forehead would cause

Kathleen to believe that Marshall would cause her imminent physical harm.

         {¶ 16} We reject Marshall's argument that the evidence did not support the conclusion

that he committed a threatening act. Marshall's physical behavior was obviously intended to

intimidate his mother.

         {¶ 17} We also reject the contention that the state failed to prove that Kathleen

believed that Marshall would cause her physical harm because she was not afraid. R.C.

2919.25(C) has no element that the victim fear physical harm. Rather, the statute requires

only that the defendant's actions cause the victim to believe imminent physical harm will

occur. In this regard, Kathleen testified that she was not sure what her son would do to her

but she anticipated being physically struck. Kathleen's action of bringing her knees up and

creating a defensive barrier between her and Marshall bolsters the conclusion that she

anticipated a physical attack. Accordingly, neither argument has any merit. Our decision

with respect to the manifest weight of the evidence is also dispositive of the issue of the

sufficiency of the evidence. This court overrules Marshall's third and fourth assignments of

error.

         {¶ 18} Assignment of Error No. 1:

         {¶ 19} OHIO LAW DOES NOT RECOGNIZE NONVERBAL THREATS OF FORCE BY

DEFINITION.

         {¶ 20} In his first assignment of error, Marshall argues that his act of entering the
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locked room and then pushing Kathleen onto the bed with his forehead was insufficient to

establish a threat of force. Marshall argues, without citation to authority, that a threat of force

must be verbal and a nonverbal threat of force cannot sustain a conviction under R.C.

2919.25(C). The state argues that nonverbal conduct can constitute a threat of force and

cites a case from this district where nonverbal conduct constituted a threat of force. State v.

Rhoads, 12th Dist. Clermont No. CA2012-05-040, 2013-Ohio-152. Rhoads involved a

conviction under R.C. 2919.25(C) where the estranged boyfriend of the victim drove his truck

toward the victim at a high rate of speed before braking at the last second. Id. at ¶ 1 ,6, 12.

The victim and her companion saw the defendant grinning and glaring at them immediately

after the incident. Id. at ¶ 13, 15. The victim testified that she believed that the defendant

was threatening harm. Id. at ¶ 14.

       {¶ 21} The Revised Code does not define "threat" or "threat of force" as used in R.C.

2919.25(C). Any word left undefined by statute is to be accorded its common, everyday

meaning. State v. Dorso, 4 Ohio St.3d 60, 62 (1983). Webster's Dictionary's defines threat

as:

              an indication of something impending and [usually] undesirable
              or unpleasant * * * an expression of an intention to inflict evil,
              injury, or damage on another [usually] as retribution or
              punishment for something done or left undone * * * something
              that by its very nature or relation to another threatens the welfare
              of the latter.

Webster's Third New International Dictionary 2382 (1993). (Emphasis added.) Accordingly,

the common meaning of a threat is not limited to verbal communications to harm another.

       {¶ 22} As implied in Rhoads, this court agrees that nonverbal conduct can establish a

threat of force if the defendant acted knowingly and the conduct caused the victim to

anticipate imminent physical harm. There is no logical support for Marshall's claim that a

threat of force must be accompanied by a verbal statement. This court overrules Marshall's

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first assignment of error.

       {¶ 23} Assignment of Error No. 2:

       {¶ 24} THE DEFENDANT DOES NOT QUALIFY AS A "FAMILY OR HOUSEHOLD

MEMBER" AS THE RECEIPIENT OF THE "THREAT."

       {¶ 25} In his second assignment of error, Marshall presents an extension of his first

assignment of error, i.e., that Ohio does not recognize nonverbal conduct for purposes of

establishing a threat of force. Marshall argues that because the only verbal threat of force in

evidence was from Marshall himself (his threat to commit suicide), he cannot be a victim

because he cannot be related to himself. This argument has no merit. As discussed, the

underlying premise of Marshall's first assignment of error, that a threat of force must be

verbal, is erroneous. Furthermore, as detailed above, the threat of force involved in the

offense was directed at Kathleen. It was undisputed that Kathleen is Marshall's mother.

Therefore, Kathleen is a family member pursuant to the definition of "family or household

member" as set forth in R.C. 2919.25(F). This court overrules Marshall's second assignment

of error.

       {¶ 26} Judgment affirmed.


       HENDRICKSON, P.J., and RINGLAND, J., concur.




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