[Cite as State v. Rosumenko, 2014-Ohio-127.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :   JUDGES:
                                               :
                                               :   Hon. W. Scott Gwin, P.J.
       Plaintiff-Appellee                      :   Hon. William B. Hoffman, J.
                                               :   Hon. Patricia A. Delaney, J.
-vs-                                           :
                                               :   Case No. 13-CA-49
                                               :
PAUL C. ROSUMENKO                              :
                                               :
                                               :
       Defendant-Appellant                     :   OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Licking County Court of
                                                   Common Pleas, Case No. 12 CR 00605



JUDGMENT:                                          AFFIRMED




DATE OF JUDGMENT ENTRY:                            January 14, 2014




APPEARANCES:

For Plaintiff-Appellee:                            For Defendant-Appellant:

KENNETH W. OSWALT                                  BRYAN BOWEN
LICKING CO. PROSECUTOR                             BOWEN & KECK LAW, LLC
Paula M. Sawyers                                   338 South High St.
20 S. Second St., Fourth Floor                     Columbus, OH 43215
Newark, OH 43055
Licking County, Case No.13-CA-49                                                       2

Delaney, J.

       {¶1} Appellant Paul C. Rosumenko appeals from the May 17, 2013 Judgment

Entry of the Licking County Court of Common Pleas convicting him of one count of

aggravated burglary and one count of domestic violence and sentencing him to a prison

term of six years. Appellee is the state of Ohio.

                        FACTS AND PROCEDURAL HISTORY

       {¶2} Appellant and Crystal Rosumenko have been married for over a year and

have one child together. As of November 10, 2012, Crystal considered appellant her

“ex” although the two were still married. That evening, she went to the Budget Inn

located at 176 West Church Street, Newark, in Licking County, Ohio, to “get away from

the drama” with appellant.

       {¶3} Crystal stayed in Room 111 with her friend Shawn Fry, Fry’s girlfriend

Suzayn Henry, Crystal’s friend Chasity Palmer, and Palmer’s boyfriend Brian Hess.

Crystal’s car was parked directly in front of the door to the room. The group watched

T.V. and settled down to sleep but was awakened by the sound of Crystal’s car alarm.

       {¶4} Chasity Palmer went to the door of the room to look out. She opened the

door and saw a “figure” in the parking lot running toward the door. Palmer tried to shut

the door quickly but was not able to do so. The person entered the room and began to

fight with Crystal. Palmer could not see clearly because she didn’t have her glasses on.

       {¶5} Shawn Fry was in the motel room bathroom when the car alarm went off.

He came out and saw Crystal looking out the blinds, and Palmer trying to push

someone out the door. Someone said “Paul, it’s Paul.” Fry observed appellant burst

into the room by kicking the door in. Appellant immediately began to argue with Crystal
Licking County, Case No.13-CA-49                                                            3


and the others in the room tried to push him out. Fry observed appellant strike Crystal

on her right cheek with his hand.

       {¶6} Suzayn Henry was pregnant during this incident and hid in the bathroom

until the others said appellant was gone. When she came out, she asked Crystal if she

was O.K. and Crystal replied “No, he hit me.” Henry observed the door frame of the

room was “destroyed” and urged the group to call police.

       {¶7} Crystal testified she was asleep when she heard a “boom” and her car

alarm went off. She jumped out of bed as Palmer was opening the door which appellant

then kicked in. Crystal testified appellant screamed at her and “accused her of sleeping

with everyone in the room” before grabbing her, shaking her, and striking her on the

arm. Crystal observed a dent in the front of her car but was not certain appellant did it.

She testified her only resulting injury from appellant’s assault was a bruise on her arm.

       {¶8} Newark police responded to the Budget Inn and took statements from the

witnesses. They also photographed the broken door. Police were unable to locate

appellant that night.

       {¶9} Appellant was charged by indictment with one count of aggravated

burglary pursuant to R.C. 2911.11(A)(1), a felony of the first degree, one count of

domestic violence pursuant to R.C. 2919.25(A), a felony of the third degree, and one

count of criminal damaging pursuant to R.C. 2909.06(A), a misdemeanor of the second

degree. Appellant entered pleas of not guilty and the case proceeded to jury trial.

Appellant stipulated to two prior domestic violence convictions. He moved for judgment

of acquittal pursuant to Crim.R. 29(A) at the close of appellee’s evidence and at the

close of all of the evidence, and the motions were overruled. Appellant did not present
Licking County, Case No.13-CA-49                                                          4


evidence or testify on his own behalf. The jury found him guilty of aggravated burglary

and domestic violence but not guilty of criminal damaging.

       {¶10} The parties agreed the aggravated burglary and domestic violence

offenses merged for sentencing purposes and appellee elected to sentence on Count I,

aggravated burglary. The trial court imposed a prison term of six years.

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

sentence.

       {¶12} Appellant raises one assignment of error:

                               ASSIGNMENT OF ERROR

       {¶13} “I.    THE       DEFENDANT-APPELLANT’S               CONVICTIONS          FOR

AGGRAVATED BURGLARY, IN VIOLATION OF OHIO REVISED CODE 2911.01; AND

DOMESTIC VIOLENCE, IN VIOLATION OF OHIO REVISED CODE 2919.25, WERE

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”

                                        ANALYSIS

       {¶14} In his sole assignment of error, appellant argues his convictions are

against the manifest weight and sufficiency1 of the evidence. We disagree.

       {¶15} The legal concepts of sufficiency of the evidence and weight of the

evidence are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio

St.3d 380, 1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. 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

1
  Appellant does not assign the sufficiency of the evidence in his statement of his
assignment of error, but does argue sufficiency throughout his brief, supported by
reference to the record and authority. In the interest of justice, therefore, we will
address his sufficiency argument as well as manifest weight.
Licking County, Case No.13-CA-49                                                          5


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.”

       {¶16} In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the “thirteenth juror,” and after “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 overturned and a new trial ordered.” State v. Thompkins, supra, 78

Ohio St.3d at 387. Reversing a conviction as being against the manifest weight of the

evidence and ordering a new trial should be reserved for only the “exceptional case in

which the evidence weighs heavily against the conviction.” Id.

       {¶17} Appellant was convicted of one count of aggravated burglary pursuant to

R.C. 2911.11(A)(1), which states in pertinent part, “No person, by force, stealth, or

deception, shall trespass in an occupied structure * * * when another person other than

an accomplice of the offender is present, with purpose to commit * * * any criminal

offense, if any of the following apply: [t]he offender inflicts, or attempts or threatens to

inflict physical harm on another.” He was also convicted of one count of domestic
Licking County, Case No.13-CA-49                                                      6


violence pursuant to R.C. 2919.25(A), which states, “No person shall knowingly cause

or attempt to cause physical harm to a family or household member.”

       {¶18} In challenging the manifest weight and sufficiency of the evidence,

appellant does not challenge appellee’s evidence as to any specific element of the

offenses but instead points to various discrepancies in the testimony of appellee’s

witnesses. We note, however, the weight of the evidence and the credibility of the

witnesses are determined by the trier of fact. State v. Yarbrough, 95 Ohio St.3d 227,

231, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 79.

       {¶19} We have thoroughly reviewed the record of this case and the exhibits.

Appellee’s evidence established appellant trespassed into the motel room and

assaulted his wife. The witnesses’ testimony is buttressed by the physical evidence of

the broken door frame. Viewing the evidence in the light most favorable to appellee, the

evidence supports appellant’s convictions for aggravated burglary and domestic

violence. We further note the jury evidently did not lose its way in considering the

evidence and create a manifest miscarriage of justice; in fact, the jury found appellant

guilty of two offenses and not guilty of another (criminal damaging).     The jury was

evidently able to reject some of appellee’s evidence, to wit, Crystal’s somewhat

equivocal testimony about the damage to her car.

       {¶20} We conclude appellant’s convictions are supported by sufficient evidence

and are not against the manifest weight of the evidence. Appellant’s sole assignment of

error is overruled.
Licking County, Case No.13-CA-49                                                   7


                                   CONCLUSION

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

Licking County Court of Common Pleas is affirmed.

By: Delaney, J. and

Gwin, P.J. and

Hoffman, J., concur.
