[Cite as State v. Roberson, 2013-Ohio-3449.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

STATE OF OF OHIO                                  JUDGES:
                                                  Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                        Hon. Sheila G. Farmer, J.
                                                  Hon. Patricia A. Delaney, J.
-vs-
                                                  Case No. 2012CA00215
JOHNNIE E. ROBERSON

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Stark County Court of
                                               Common Pleas, Case No. 2012CR1245


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                        August 5, 2013


APPEARANCES:


For Defendant-Appellant                        For Plaintiff-Appellee


MARY G. WARLOP                                 JOHN D. FERRERO,
Abney Law Office, LLC                          PROSECUTING ATTORNEY,
116 Cleveland Ave., N.W., Suite 500            STARK COUNTY, OHIO
Canton, Ohio 44702
                                               BY: KATHLEEN O. TATARSKY
                                               Assistant Prosecuting Attorney
                                               Appellate Section
                                               110 Central Plaza, South – Suite 510
                                               Canton, Ohio 44702-1413
Stark County, Case No. 2012CA00215                                                      2

Hoffman, P.J.


       {¶1}   Defendant-appellant Johnnie E. Roberson appeals his conviction entered

by the Stark County Court of Common Pleas, on one count of domestic violence,

following a jury trial. Plaintiff-appellee is the state of Ohio.

                            STATEMENT OF THE CASE AND FACTS

       {¶2}   On September 17, 2012, the Stark County Grand Jury indicted Appellant

on one count of domestic violence, in violation of R.C. 2919.25(A), a felony of the fourth

degree. Appellant appeared before the trial court for arraignment on September 21,

2012, and entered a plea of not guilty to the charge. The matter proceeded to jury trial

on October 30, 2012. As a preliminary matter, the State and defense counsel stipulated

Appellant had previously been convicted of domestic violence on May 31, 2012, in

Canton Municipal Case No.2012-CRB-2035.

       {¶3}   Melissa Wilson testified she lived with Appellant in an apartment on

Cleveland Ave., Canton, Ohio, and the two had lived together for two years. Wilson

admitted she loved Appellant “to death” and told “everyone he’s my husband.” On

August 11, 2012, at approximately 5:30 pm, Wilson traveled by bus to the Save-A-Lot

grocery store on Tuscarawas Street. According to Wilson, when she exited the bus,

Appellant approached her, took her by the arm and said something about going home.

Wilson denied Appellant being rough with her or grabbing at her backpack. Wilson

stated the next thing she remembered was Officer Nixon running out of the store, three

additional officers arriving, and Appellant being slammed to the ground.        A female

officer questioned Wilson about whether Appellant had punched her, but Wilson denied

such happening. Wilson did not go to the hospital.
Stark County, Case No. 2012CA00215                                                     3


       {¶4}    Tosha Miner, a co-assistant manager at the Tuscarawas Street Save-A-

Lot, testified she was driving to the store with her step-daughter on August 11, 2012.

Miner was not working that day. While waiting to turn into the parking lot, Miner noticed

a man, who was later identified as Appellant, and a woman, who was later identified as

Melissa Wilson, at the bus stop, "going at it". Appellant was trying to take Wilson's

purse away from her. Miner heard Appellant demand, "I want my keys. Give me my

keys." Wilson was pulling away from Appellant.       Appellant lifted his hand to strike

Wilson on her face. Then, Officer Nixon ran out of the store.

       {¶5}    Miner acknowledged she did not see Appellant strike Wilson, but it

appeared to her as if Appellant was about to do so. After parking her vehicle, Miner

observed Wilson walking away. Miner told Wilson to stay in order to speak with police.

Miner recalled Wilson did not seem concerned, but "just wanted to get away."

       {¶6}    Jim Nixon, a Canton City police officer, testified he was working his off

duty job as a security officer at the Tuscarawas Street Save-A-Lot on August 11, 2012,

when a customer entered the store and informed him there was a fight happening in the

parking lot.   Nixon looked out the store window and observed two individuals who

appeared to be fighting. Nixon called dispatch as he ran out of the store.

       {¶7}    Nixon observed Wilson, whom he recognized from previous calls, holding

onto a pink backpack purse and being thrown around by Appellant, with whom Nixon

was also familiar. Wilson pulled her backpack toward her as Appellant pulled in the

opposite direction, causing the two to twirl around in circles. At one point, Nixon saw

Appellant place an upper cut jab to Wilson's abdomen area. Nixon commanded the two

to stop. Appellant released Wilson and dropped to the ground.
Stark County, Case No. 2012CA00215                                                    4


       {¶8}   Canton City Police responded to the scene, and Appellant was taken into

custody. Officers checked Wilson for injuries. She had a bandage on her arm from a

previous injury as well as an injury to her wrist. Wilson had no redness or bruising on

her abdomen. Wilson did not give a statement to police and refused medical treatment.

       {¶9}   At the close of the State's case, Appellant made an oral Crim. R. 29

motion for acquittal which the trial court denied.

       {¶10} Jeffrey Freeman, Jr. testified on Appellant's behalf. Freeman was at the

Towne Manor Hotel, which is adjacent to the Tuscarawas Street Save-A-Lot on August

11, 2012. He was standing outside on a second floor balcony and had a view of the

entire Save-A-Lot parking lot. Freeman observed Appellant run toward the bus stop,

and grab Wilson as she exited the bus. Appellant repeatedly asked Wilson about his

key, but she indicated she did not have it. Freeman observed a police officer pull his

firearm as he sprinted out of the store. The officer ordered Appellant to the ground and

slammed him down. Freeman stated he saw Appellant reach toward Wilson's backpack

but did not see him touch her. He added Appellant did not act violently toward Wilson at

any time. Freeman never spoke with police because he "didn't want to get involved".

On cross-examination, Freeman acknowledged he and Appellant are related.

       {¶11} Theodore Dent also testified on Appellant's behalf. Dent recalled he was

walking from his sister's house through the alley between the Save-A-Lot and Towne

Manor on his way to the bus stop on August 11, 2012.          Dent observed Appellant

"yanking" on Wilson's arm, but assumed Appellant was joking or playing around. Dent

heard Appellant mention something about a key.        He did not see Appellant strike

Wilson. Dent did not think anything about the situation until he saw a "black man
Stark County, Case No. 2012CA00215                                                       5


messing with that white woman and the police." He "knew what was happening" so he

boarded the bus and left.

      {¶12} After hearing all the evidence and deliberations, the jury found Appellant

guilty as charged. The trial court sentenced Appellant to a prison term of eighteen

months.

      {¶13} It is from this conviction and sentence Appellant appeals, raising as his

sole assignment of error:

      {¶14} “I. THE JURY’S FINDING OF GUILT WAS NOT SUPPORTED BY

SUFFICIENT EVIDENCE AND WAS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE.”

                                                I

      {¶15} On review for sufficiency, a reviewing court is to examine the evidence at

trial to determine whether such evidence, if believed, would support a conviction. State

v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). “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.” Jenks at paragraph two of the syllabus, following Jackson v.

Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). On review for manifest

weight, a reviewing court is to examine the entire record, weigh the evidence and all

reasonable inferences, consider the credibility of witnesses and determine “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 and a new trial

ordered.” State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1983). See also,
Stark County, Case No. 2012CA00215                                                       6

State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541, 1997–Ohio–52. 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. We note

“circumstantial evidence may be more certain, satisfying and persuasive than direct

evidence.” State v. Richey, 64 Ohio St.3d 353, 595 N.E.2d 915, 1992–Ohio–44. It is to

be given the same weight and deference as direct evidence. Jenks, supra.

      {¶16} Appellant contends the jury’s finding him guilty of domestic violence was

not supported by sufficient evidence and was against the manifest weight of the

evidence as Wilson did not sustain any physical injury. Appellant refers to Wilson’s

cross-examination during which she testified Appellant “never laid a hand” on her.

Appellant also notes the evidence established Wilson was not injured in any way. She

did not have any marks, bruises, or redness on her face or abdomen. Wilson testified

Appellant “simply grabbed [her] arm” and did so “without much force”.

      {¶17} Appellant was convicted on one count of domestic violence, in violation of

R.C. 2919.25(A), which provides: “(A) No person shall knowingly cause or attempt to

cause physical harm to a family or household member.”

      {¶18} We find Appellant’s argument lacks merit. A defendant does not have to

cause injury to his victim to be guilty of domestic violence. A defendant may be found

guilty of domestic violence even if the victim sustains only minor injuries, or sustains no

injury at all. State v. Blonski, 125 Ohio App.3d 103, 114 (1997) at para. 18, citing State

v. Nielsen, 66 Ohio App.3d 609, 612, 585 N.E.2d 906 (1990). Any harm is sufficient.

      {¶19} Upon review of the entire record, we find Appellant’s conviction was

neither against the manifest weight of the evidence nor based upon insufficient
Stark County, Case No. 2012CA00215                                                      7


evidence. Office Jim Nixon observed Appellant pulling on Wilson’s backpack as Wilson

tried to pull it away, causing the two to move in circles. Nixon also saw Appellant place

an upper cut to Wilson’s abdomen, and it appeared to Nixon Appellant had struck her.

Tosha Miner testified she saw Appellant raise his hand as if to strike Wilson in the face.

This evidence establishes Appellant attempted to cause physical harm to Wilson

despite her claim she was not injured and the fact she did not show any sign of injury.

The jury was free to accept or reject any or all of the testimony. The jury obviously

chose to believe the accounts of Nixon and Miner.

      {¶20} Appellant’s sole assignment of error is overruled.

      {¶21} The judgment of the Stark County Court of Common Pleas is affirmed.

By: Hoffman, P.J.

Farmer, J. and

Delaney, J. concur

                                            ___________________________________
                                            HON. WILLIAM B. HOFFMAN


                                            ___________________________________
                                            HON. SHEILA G. FARMER


                                            ___________________________________
                                            HON. PATRICIA A. DELANEY
Stark County, Case No. 2012CA00215                                                8


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


STATE OF OF OHIO                          :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :        JUDGMENT ENTRY
                                          :
JOHNNIE E. ROBERSON                       :
                                          :
       Defendant-Appellant                :        Case No. 2012CA00215


       For the reasons stated in our accompanying Opinion, the judgment of the Stark

County Court of Common Pleas is affirmed. Costs to Appellant.




                                          ___________________________________
                                          HON. WILLIAM B. HOFFMAN


                                          ___________________________________
                                          HON. SHEILA G. FARMER


                                          ___________________________________
                                          HON. PATRICIA A. DELANEY
