[Cite as State v. Gerdes, 2019-Ohio-913.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                            BUTLER COUNTY




STATE OF OHIO/CITY OF HAMILTON,                   :

        Appellee,                                 :       CASE NO. CA2018-03-056

                                                  :             OPINION
    - vs -                                                       3/18/2019
                                                  :

ANNE M. GERDES,                                   :

        Appellant.                                :



                  CRIMINAL APPEAL FROM HAMILTON MUNICIPAL COURT
                                Case No. 17CRB04234



Thomas A. Dierling, Hamilton City Prosecutor, 345 High Street, Hamilton, Ohio, 45011, for
appellee

Herdman, Summers, Revelson & Cesta, LLP, Joseph A. Cesta, 1160 East Main Street, P.O.
Box 36, Lebanon, Ohio, 45036, for appellant



        RINGLAND, P.J.

        {¶ 1} Appellant, Anne Gerdes, appeals her conviction in the Hamilton Municipal Court

for domestic violence.          For the reasons discussed below, this court affirms Gerdes'

conviction.

        {¶ 2} Gerdes and her husband, Martin, were having marital difficulties. One evening,

Gerdes was sleeping in the bedroom that she shared with Martin. Because their marital
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problems had recently escalated, Gerdes locked the door while she slept. Although Martin

knew that Gerdes was asleep and that their bedroom door was locked, he used a screwdriver

to unlock the door and retrieve a blanket for the couple's son. While getting the blanket,

Martin noticed his alarm clock was unplugged. Because Martin intended to sleep in the bed

with Gerdes and needed to set an alarm for the following morning, Martin reached over the

bed's headboard to plug in the alarm clock. At that time, an altercation ensued between

Martin and Gerdes.     Eventually, Martin left the bedroom and called the police.      The

responding officer arrived at the couple's home and spoke with Gerdes and Martin.

       {¶ 3} As a result, Gerdes was arrested and charged with one count of domestic

violence in violation of R.C. 2919.25(A), a misdemeanor of the first degree. The matter

proceeded to a jury trial. During trial, the state presented testimony from Martin. Gerdes

testified in her own defense and presented testimony from the responding officer. After

considering the evidence presented, the jury found Gerdes guilty of domestic violence.

Gerdes now appeals, raising two assignments of error. For the ease of analysis, we address

the assignments of error collectively.

       {¶ 4} Assignment of Error No. 1:

       {¶ 5} THE COURT OF COMMON PLEAS [sic] ERRED BECAUSE THE EVIDENCE

PRESENTED AT TRIAL IS LEGALLY INSUFFICIENT TO SUSTAIN A VERDICT OF

GUILTY.

       {¶ 6} Assignment of Error No. 2:

       {¶ 7} THE COURT OF COMMON PLEAS [sic] ERRED BECAUSE A VERDICT OF

GUILTY IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE PRESENTED AT

TRIAL.

       {¶ 8} Gerdes challenges the sufficiency and the weight of the evidence supporting

her conviction. Gerdes argues that the state failed to present sufficient evidence that her
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actions resulted in sufficient physical harm to Martin. Gerdes further contends that her

conviction was not supported by the weight of the evidence because Martin suffered no

physical harm or injury, and any physical contact by Gerdes was an act of self-defense.

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

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

believed, would convince the average mind of the defendant's guilt beyond a reasonable

doubt.     State v. Paul, 12th Dist. Fayette No. CA2011-10-026, 2012-Ohio-3205, ¶ 9.

Therefore, "[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, 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.

State v. Graham, 12th Dist. Warren No. CA2008-07-095, 2009-Ohio-2814, ¶ 66. "While

appellate review includes the responsibility to consider the credibility of witnesses and weight

given to the evidence, 'these issues are primarily matters for the [jury] to decide.'" State v.

Barnes, 12th Dist. Brown No. CA2010-06-009, 2011-Ohio-5226, ¶ 81, quoting State v.

Walker, 12th Dist. Butler No. CA2006-04-085, 2007-Ohio-911, ¶ 26.



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        {¶ 11} An appellate court, therefore, 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., citing State v. Thompkins, 78 Ohio St.3d 380,

387 (1997). Furthermore, "[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.

        {¶ 12} Gerdes was convicted of domestic violence. Pursuant to R.C. 2919.25(A), "No

person shall knowingly cause or attempt to cause physical harm to a family or household

member." Physical harm means "any injury, illness, or other physiological impairment

regardless of its gravity or duration." R.C. 2901.01(A)(3). In general, "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. Kellum, 12th Dist. Butler No. CA2009-03-081, 2009-Ohio-6743, ¶ 16.

Accordingly, any harm is sufficient to support a conviction for domestic violence as long as

the "state presents evidence that the offender caused physical harm to the victim through

[her] actions." Id. The gravity or duration of the injury is not a factor for consideration. Id. at

¶ 15.

        {¶ 13} Martin testified at trial regarding the altercation between himself and Gerdes.

According to Martin's testimony, when he entered the bedroom to find their son's blanket,

Gerdes began screaming at him. At that time, he retrieved the blanket and noticed that his

alarm clock was unplugged. While Martin was reaching over the bed's headboard to plug in

the alarm clock, Gerdes hit him in the face with a pillow. After being struck with the pillow,

Martin told Gerdes to stop and proceeded to reach behind the headboard to plug in his alarm

clock. While he was reaching behind the headboard the second time, Martin testified Gerdes

kicked him in his side and continued yelling at him. Gerdes then grabbed the headboard and



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began pushing and pulling, crushing Martin's arm between the headboard and the wall.

Martin testified he "kept telling [Gerdes] stop * * * you're crushing my arm, just stop."

          {¶ 14} After pushing the headboard six or seven times, Gerdes stopped and Martin

successfully plugged in his alarm clock. Martin then briefly left the bedroom to get blankets

for himself. When he returned to the room and got into bed, Gerdes started kicking Martin in

the side and yelling at him to leave.

          {¶ 15} According to Martin's testimony, Gerdes hit him in the face with a pillow, kicked

him in the side seven or nine times, and smashed his arm between the headboard and the

wall six or seven times. Martin further indicated that although he did not sustain any

outwardly observable injury because of the incident or notice any injuries that evening, his

elbow and side were sore the following day.

          {¶ 16} Gerdes testified in her own defense and offered an alternate version of the

altercation. Notably, Gerdes denied hitting Martin in the face with the pillow, using the

headboard to smash Martin's arm, and kicking Martin. According to Gerdes, she locked the

bedroom door and went to sleep because she "was afraid of what [Martin] was going to do"

and "could tell something was brewing." Martin later entered the room and began "shuffling

around" and "shoving in the bed next to" her. At that time, Gerdes asked Martin to "be a

gentleman and sleep on the couch" and to "get out, get out, get out, get out[.]" Gerdes

indicated Martin continued shoving himself into the bed but ultimately gave up because

Gerdes reached her foot over to "hold and to anchor [Martin]" and he "couldn't out-shove

[her]."

          {¶ 17} After a thorough review of the record, we find Gerdes' conviction was not

against the manifest weight of the evidence. The state presented evidence that, if believed,

established Gerdes caused or attempted to cause Martin physical harm by hitting him with

the pillow, crushing his arm with the headboard, and kicking him. Additionally, Martin testified
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that he felt sore the day after the incident, which we find is indicative of an injury, regardless

of its gravity. As such, Martin's testimony supported all elements of the crime of domestic

violence, and "a conviction is not against the manifest weight of the evidence simply because

the jury believed the prosecution testimony." State v. Erickson, 12th Dist. Warren No.

CA2014-10-131, 2015-Ohio-2086, ¶ 42. It is apparent that the jury found the testimony of

Martin to be more credible than that of Gerdes.           "The credibility of the witnesses is

paramount in cases such as this where the evidence amounts to little more than a matter of

'he said, she said.'" State v. Chasteen, 12th Dist. Butler No. CA2013-12-223, 2014-Ohio-

4622, ¶14. Here, we do not find that the trial court clearly lost its way and created a manifest

miscarriage of justice when it found Martin more credible than Gerdes and convicted Gerdes

of domestic violence.

       {¶ 18} Because Gerdes' conviction for domestic violence is not against the manifest

weight of the evidence, it is also supported by sufficient evidence. Therefore, Gerdes' two

assignments of error are overruled.

       {¶ 19} Judgment affirmed.


       PIPER and M. POWELL, JJ., concur.




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