[Cite as State v. Norman, 2012-Ohio-4145.]


                                       COURT OF APPEALS
                                   DELAWARE COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                    JUDGES:
                                                 Hon. Patricia A. Delaney, P. J.
        Plaintiff-Appellee                       Hon. W. Scott Gwin, J.
                                                 Hon. John W. Wise, J.
-vs-
                                                 Case No. 11 CAA 12 0115
CHRISTOPHER M. NORMAN

        Defendant-Appellant                      OPINION




CHARACTER OF PROCEEDING:                      Criminal Appeal from the Court of Common
                                              Pleas, Case No. 11 CR I 08 0421


JUDGMENT:                                     Affirmed



DATE OF JUDGMENT ENTRY:                        September 11, 2012



APPEARANCES:

For Plaintiff-Appellee                        For Defendant-Appellant

CAROL HAMILTON O'BRIEN                        WILLIAM T. CRAMER
PROSECUTING ATTORNEY                          470 Olde Worthington Road
GREGORY A. TAPOCSI                            Suite 200
ASSISTANT PROSECUTOR                          Westerville, Ohio 43082
140 North Sandusky Street, 3rd Floor
Delaware, Ohio 43015
Delaware County, Case No. 11 CAA 12 0115                                             2

Wise, J.

       {¶1}   Appellant Christopher M. Norman appeals his conviction, in the Delaware

County Court of Common Pleas, on one count of felony domestic violence. Appellee is

the State of Ohio. The relevant facts leading to this appeal are as follows.

       {¶2}   Appellant and Deanna Norman, the victim in this case, were married in

2002 and divorced in 2008. They have no children together. According to Deanna,

appellant often drank and got violent during their marriage. Deanna had contacted law

enforcement as a result of some of these incidents. It is undisputed that appellant has

had a prior domestic violence conviction and a conviction for violating a protection

order. See Tr. 108-109; 111-112; 10/19/11 Stipulation.

       {¶3}   While the divorce was pending, Deanna obtained a protection order

against appellant. But in April 2011, subsequent to the final divorce decree, appellant

and Deanna moved back in together. They began renting a house in exchange for

refurbishing it. They lived there with her two dogs. Appellant worked as a glass

repairman; Deanna did not work, but she was receiving social security payments for

borderline bipolar and dyslexia issues.

       {¶4}   On July 27, 2011, after Christopher finished work, they went to a co-

worker’s house to drink beer and play foosball. Appellant and Deanna formed a team

against appellant’s boss and the boss's son. Appellant was upset that they were losing,

and they eventually quit playing. Appellant and Deanna left around 11:00 P.M., having

each consumed three twenty-four ounce cans of beer. Tr. at 60. When they got home,

they continued drinking beer from a 30-pack in the refrigerator. At some point, they

began arguing about the remodeling work around the house. Appellant called Deanna
Delaware County, Case No. 11 CAA 12 0115                                               3


"a fat, fucking, lazy bitch," told her that her "dogs were useless fucking commodities."

Tr. at 61. Appellant at some point started throwing beer cans at Deanna’s dogs, and she

yelled at him to leave the dogs alone. Tr. at 62. Appellant told her to get out, so she

called her nephew to come and get her. Tr. at 64.

       {¶5}   The next day, Deanna got up around 11:00 a.m. and called her daughter

to take her back to the house to get the dog food, her clothes, and her truck. She waited

until the afternoon, but when she got there, she saw appellant’s car. Deanna went to the

back door and used her key to get into the house, even though appellant had stacked

some remodeled kitchen cabinets in front of the back door. Appellant noticed the words

"fuck you" written on the door just above the lock. She also subsequently observed that

all the remaining beer from the night before was gone.

       {¶6}   As Deanna entered the back of the house, appellant came towards her

from the front room. She told him she was not there to start anything, she just wanted to

get her things. Appellant accused her of breaking into the house and told her to leave.

Tr. at 66-68. Deanna ignored him and went about gathering her clothes and the dog

food. Appellant again told her to get out of the house and pushed her “full force” from

behind, causing her to fall onto the bed. Tr. at 69-71. Deanna went back to the front

room and observed that appellant’s laptop computer was on the coffee table and was

plugged into the wall. She then accused him of communicating with other women

online; appellant replied it was none of her business. Tr. at 69-72.

       {¶7}   According to Deanna, as she walked away from the area, she tripped over

the computer wires and almost knocked the laptop off the table. Appellant caught the

laptop and responded by kicking her stereo. Deanna retaliated by grabbing the laptop
Delaware County, Case No. 11 CAA 12 0115                                                   4


and trying to throw it at the wall. Appellant grabbed her by the arms to stop her and they

fell back onto the couch. Appellant told her he would “stomp [her] f---ing face in." Tr. at

74. Appellant’s glasses came off during the fracas; at that point appellant got off of her.

       {¶8}   Deanna then telephoned the police. Tr. at 74. Deanna later testified that

as she made the call, appellant took the coffee table and rammed it into her knees,

pinning her between the table and a loveseat. Tr. at 77. According to Deanna, appellant

was “between myself and any exit other than the windows and he wouldn’t let me pass.”

Tr. at 77.

       {¶9}   Eventually, appellant grabbed some of his belongings and left the

premises before police officers arrived. Tr. at 79.

       {¶10} Two deputies from the Delaware County Sheriff’s Office responded to the

call, one of whom, Deputy Stephanie Shine, later testified at trial. Deputy Shine recalled

that Deanna was upset, afraid, and crying. Tr. at 40-41. Based on the disarray in the

home, the deputy thought there had been a physical altercation. Tr. at 42. The deputy

found a remote control that had been smashed and an ashtray on the floor that

appeared to have been thrown. Tr. at 46. Deanna described her version of events to the

deputy, including her allegation that appellant had pushed a coffee table under her legs.

Tr. at 49. Deputy Shine did not notice any physical injuries at first, but later that day she

noticed a bruise on Deanna’s arm. Tr. at 41. Deanna told the deputy she did not know

the cause of the arm bruise. Tr. at 47.

       {¶11} In the meantime, another deputy called appellant, but he did not come

back home to talk to them. Tr. at 43. Later that afternoon, deputies got a tip that

appellant had returned home, so they returned and arrested him. Tr. at 44. Appellant
Delaware County, Case No. 11 CAA 12 0115                                              5


purportedly told the officers that Deanna had kicked his glasses off of his face, but he

did not mention pushing her or threatening her. Tr. at 50-51.

      {¶12} On August 5, 2011, appellant was charged with two counts of domestic

violence, one for causing or attempting to cause physical harm in violation of R.C.

2919.25(A), and one for threatening physical harm in violation of R.C. 2919.25(C). Both

charges were elevated based on a prior conviction under R.C. 2919.25(D)(3), so that

Count I charged a fourth-degree felony and Count II a second-degree misdemeanor.

      {¶13} The case proceeded to a jury trial on October 28, 2011. Following the jury

trial, appellant was found guilty of the felony charge (Count I), but not guilty of the

misdemeanor charge (Count II). Via a judgment entry filed November 29, 2011, the trial

court sentenced appellant to three years of community control with various additional

conditions.

      {¶14} On December 14, 2011, appellant filed a notice of appeal. He herein

raises the following two Assignments of Error:

      {¶15} “I. APPELLANT WAS DEPRIVED OF HIS RIGHTS TO DUE PROCESS

AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S.

CONSTITUTION AND ARTICLE I, SECTION 16, OHIO CONSTITUTION BECAUSE

THE PROSECUTION FAILED TO PRESENT SUFFICIENT EVIDENCE THAT

APPELLANT COMMITTED DOMESTIC VIOLENCE.

      {¶16} “II. THE JURY’S FINDING THAT APPELLANT COMMITTED DOMESTIC

VIOLENCE AGAINST HIS EX-WIFE WAS NOT SUPPORTED BY THE WEIGHT OF

[THE] EVIDENCE.”
Delaware County, Case No. 11 CAA 12 0115                                                6


                                                 I.

       {¶17} In his First Assignment of Error, appellant argues his domestic violence

conviction was not supported by sufficient evidence. We disagree.

       {¶18} In reviewing a claim of insufficient evidence, “[t]he 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 (1991), 61 Ohio St.3d 259, 574 N.E.2d 492,

paragraph two of the syllabus.

       {¶19} In the case sub judice, appellant was convicted of domestic violence in

violation of R.C. 2919.25(A), a felony of the fourth degree. Said statute states as

follows: “No person shall knowingly cause or attempt to cause physical harm to a family

or household member.”

       {¶20} Appellant’s first challenge to the sufficiency of the evidence concerning his

conviction is that “[t]he entire case rested on the testimony of Deanna” that “was of

dubious validity.” Appellant’s Brief at 12. However, when reviewing the sufficiency of the

evidence, an appellate court generally does not weigh the credibility of the witnesses.

See State v. Marrero, Franklin App.No. 10AP–344, 2011-Ohio-1390, ¶ 10, citing State

v. Yarbrough, 95 Ohio St.3d 227, 767 N.E.2d 216, 2002–Ohio–2126, ¶ 79. See, also,

State v. Harrier, Morgan App.No. CA 94-8, 1995 WL 495889, (distinguishing between a

“weight and/or credibility question” and a “sufficiency of the evidence” question). We

thus find no merit in appellant’s sufficiency challenge in this regard.
Delaware County, Case No. 11 CAA 12 0115                                                  7


      {¶21} Appellant’s second sufficiency argument goes to the “knowing” element of

the offense of domestic violence. “Knowingly” is defined in R.C. 2901.22(B) as follows:

      {¶22} “A person acts knowingly, regardless of his purpose, when he is aware

that his conduct will probably cause a certain result or will probably be of a certain

nature. A person has knowledge of circumstances when he is aware that such

circumstances probably exist.”

      {¶23} The record in the case sub judice reveals Deanna’s trial testimony that

appellant, after earlier grabbing her and forcing her onto the couch, subsequently

“rammed” the coffee table into Deanna’s legs, pinning her against the loveseat, having

shortly beforehand stating he would “stomp her face in.” See Tr. at 74, 77-78. Upon

review of the record, we hold rational triers of fact could have found, beyond a

reasonable doubt, that appellant knowingly caused or attempted to cause physical harm

to a household member for purposes of R.C. 2919.25(A). We therefore hold appellant's

conviction for domestic violence was supported by sufficient evidence.

      {¶24} Accordingly, appellant's First Assignment of Error is overruled.

                                              II.

      {¶25} In his Second Assignment of Error, appellant contends his domestic

violence conviction was against the manifest weight of the evidence. We disagree.

      {¶26} Our standard of review on a manifest weight challenge to a criminal

conviction is stated as follows: “The court, reviewing the entire record, weighs the

evidence and all reasonable inferences, considers the credibility of witnesses and

determines whether in resolving conflicts in the evidence, the jury clearly lost its way

and created such a manifest miscarriage of justice that the conviction must be reversed
Delaware County, Case No. 11 CAA 12 0115                                                  8

and a new trial ordered.” State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d

717. See also, State v. Thompkins (1997), 78 Ohio St.3d 380, 678 N.E.2d 541. The

granting of a new trial “should be exercised only in the exceptional case in which the

evidence weighs heavily against the conviction.” Martin at 175, 485 N.E.2d 717.

Furthermore, “[w]hile the jury may take note of the inconsistencies and resolve or

discount them accordingly * * * such inconsistencies do not render [a] defendant's

conviction against the manifest weight * * *.” State v. Craig (Mar. 23, 2000), Franklin

App. No. 99AP–739, citing State v. Nivens (May 28, 1996), Franklin App. No.

95APA09–1236.

       {¶27} Appellant in the case sub judice essentially maintains that the evidence

merely demonstrated that accidental physical contact occurred as he and Deanna

struggled over the laptop and other items in the house. We note the record additionally

indicates that appellant took the stand at trial and described a history of volatility and

jealousy in his relationship with Deanna. He asserted that Deanna was “severely”

bipolar and had a history of angry outbursts. Tr. at 125. Appellant testified that had to go

to work the day after the foosball party, and he was worried that Deanna would come

back and start breaking things while he was gone. Appellant testified that Deanna had

broken computers and televisions before, broken his glasses twice, and smashed his

car windows. Tr. at 118.      Before Deanna came back on July 28, 2011, appellant

attempted to barricade the back doors to the house and decided to call off going to

work. Tr. at 118-119. In his recollection, when he grabbed for his laptop during the

ensuing events, Deanna fell back on the couch, at which time she kicked at the side of

his body. Tr. at 120-122. During her cross-examination, Deanna admitted that she
Delaware County, Case No. 11 CAA 12 0115                                               9


smashed the television remote control on the coffee table during their argument. She

also admitted that she knew appellant prized his television and laptop computer. Tr. at

88-90.

         {¶28} Nonetheless, while it appears to us that either appellant or Deanna could

have probably avoided the confrontation of July 28, 2011 in the first place by requesting

in advance the assistance of law enforcement in removing Deanna’s belongings, we

find the jury could have properly decided that appellant’s violent and verbally abusive

response to her return to the house was not defensible, and we hold upon review that

the jurors, in resolving any conflicts in the evidence, did not create a manifest

miscarriage of justice requiring a new trial.

         {¶29} Appellant’s Second Assignment of Error is therefore overruled.

         {¶30} For the reasons stated in the foregoing opinion, the decision of the Court

of Common Pleas, Delaware County, Ohio, is hereby affirmed.


By: Wise, J.

Delaney, P. J., and

Gwin, J., concur.



                                                ___________________________________


                                                ___________________________________


                                                ___________________________________

                                                                JUDGES
JWW/d 0813
Delaware County, Case No. 11 CAA 12 0115                                       10


           IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT




STATE OF OHIO                             :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
CHRISTOPHER M. NORMAN                     :
                                          :
       Defendant-Appellant                :         Case No. 11 CAA 12 0115




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Delaware County, Ohio, is affirmed.

       Costs assessed to appellant.




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                                          ___________________________________


                                          ___________________________________

                                                             JUDGES
