[Cite as State v. Miller, 2012-Ohio-6115.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                HENRY COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 7-12-07

        v.

GREGORY DAVID VESTLE MILLER,                               OPINION

        DEFENDANT-APPELLANT.




                         Appeal from Napoleon Municipal Court
                              Trial Court No. 11CRB681

                                       Judgment Affirmed

                           Date of Decision: December 26, 2012




APPEARANCES:

        Keith H. Schierloh for Appellant

        Trevor M. Hayberger for Appellee
Case No. 7-13-07


PRESTON, J.

          {¶1} Defendant-appellant, Gregory David Vestle Miller, appeals the

Napoleon Municipal Court’s judgment entry of conviction and sentence. We

affirm.

          {¶2} On November 10, 2011, Miller had an argument with Candy Myers,

his girlfriend with whom he cohabitated from August 18, 2011 to November 10,

2011, while the two were driving to Wal-Mart. (Dec. 8, 2011 Tr. at 9, 13-15, 42).

During the argument, Miller struck Myers in the stomach with a closed fist. (Id. at

9, 15).

          {¶3} On November 11, 2011, a complaint was filed in the Napoleon

Municipal Court of Henry County, Ohio charging Miller with one count of

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

(Doc. No. 1).      On that same day, the trial court issued Myers a temporary

protection order (“TPO”) and Miller entered a plea of not guilty to the charge.

(Doc. No. 5).

          {¶4} On December 8, 2011, the matter proceeded to a bench trial, and the

trial court found Miller guilty. (Doc. No. 20). On January 5, 2012, the trial court

sentenced Miller to 30 days in jail but suspended 29 days and placed Miller on

community control for one year. (Doc. No. 22).




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       {¶5} On January 19, 2012, Miller filed a notice of appeal. (Doc. No. 25).

This first appeal was assigned appellate case no. 7-12-02; however, the case was

dismissed for lack of a final, appealable order.

       {¶6} On May 3, 2012, the trial court resentenced Miller to 30 days at

CCNO, with 29 days suspended and credit for one day served. (Doc. No. 30).

The 29 days were suspended upon conditions that Miller have no other offenses of

violence for two years and complete an assessment through AJA Behavioral and

comply with the treatment plan. (Id.). The trial court also placed him on one year

of community control under the supervision of the court. (Id.).

       {¶7} On May 21, 2012, Miller filed a notice of appeal. (Doc. No. 31).

Miller now appeals raising two assignments of error for our review. Since his

assignments of error raise similar issues, we elect to combine them for review,

though we will address them out of the order presented in his brief.

                            Assignment of Error No. II

       The trial court erred when it overruled the defefendant’s [sic]
       request for Criminal Rule 29 Motion to dismiss regarding lack
       of evidence and the failure to prove the elements beyond a
       reasonable doubt.

                            Assignment of Error No. I

       The trial court erred to the prejudice of appellant, when it
       entered a judgment of conviction, where such judgment was
       against the manifest weight of the evidence.



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       {¶8} In his second assignment of error, Miller argues that the trial court

erred by failing to grant his Crim.R. 29 motion to dismiss for a lack of venue and

evidence to prove that the victim and he were household members. In his first

assignment of error, Miller argues that the judgment of conviction was against the

manifest weight of the evidence.

       {¶9} Crim.R. 29(A) provides:

       The court on motion of a defendant or on its own motion, after the

       evidence on either side is closed, shall order the entry of a judgment

       of acquittal of one or more offenses charged in the indictment,

       information, or complaint, if the evidence is insufficient to sustain a

       conviction for such offense or offenses.

“Pursuant to Crim. R. 29(A), a court shall not order an entry of judgment of

acquittal if the evidence is such that reasonable minds can reach different

conclusions as to whether each material element of a crime has been proved

beyond a reasonable doubt.” State v. Bridgeman, 55 Ohio St.2d 261 (1978),

syllabus.

       {¶10} This court has previously found that the Bridgeman standard “must

be viewed in light of the sufficiency of evidence test * * *.” State v. Foster, 3d

Dist. No. 13-97-09, *2 (Sept. 17, 1997). When reviewing the sufficiency of the

evidence, “[t]he relevant inquiry is whether, after viewing the evidence in a light


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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, (1981), paragraph two of the syllabus.

       {¶11} On the other hand, to determine whether a conviction is against the

manifest weight of the evidence, a reviewing court must 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 [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. Thompkins, 78

Ohio St.3d 380, 387 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175

(1st Dist.1983).   A reviewing court must, however, allow the trier of fact

appropriate discretion on matters relating to the weight of the evidence and the

credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230, 231 (1967).

       {¶12} The criminal offense of domestic violence is codified in R.C.

2919.25, which provides that: “[n]o person shall knowingly cause or attempt to

cause physical harm to a family or household member.” R.C. 2919.25(A). As

used in this section, “family or household member” includes “a person living as a

spouse.” R.C. 2919.25(F)(1)(a)(i). “‘Person living as a spouse’ means a person *

* * who otherwise is cohabiting with the offender, or who otherwise has cohabited




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with the offender within five years prior to the date of the alleged commission of

the act in question.” R.C. 2919.25(F)(2).

       {¶13} Candy R. Myers testified that, on November 10, 2011, her father

dropped her off at the Napoleon Library where she waited for Miller to pick her up

after he was finished working for the day. (Dec. 8, 2011 Tr. at 6). Myers testified

that, around 4:00 to 4:30 p.m. that day while she was waiting for Miller to pick her

up, Miller telephoned her, and they began an argument about Miller using an

internet dating site to find other women. (Id. at 6-7). During the argument, Miller

told Myers that he was not going to return her car, which he had, and Myers told

Miller that if he did not return her car immediately, she would call the police. (Id.

at 7). Myers testified that, about 20 to 25 minutes later, Miller came with her

vehicle and was very angry with her. (Id. at 7-8). Myers testified that Miller

wanted to drive the car to Wal-Mart to cash his check, but she insisted that she

drive the vehicle since it belonged to her. (Id. at 8). Myers testified that, as she

was driving Miller to Wal-Mart, Miller was yelling and cussing at her, because she

asked him whether he intended to give her the money he owed to her niece and her

daughter. (Id.). According to Myers, at this point Miller starting calling her

“April,” the name of Miller’s ex-wife, and stated that she, Myers, was keeping him

from his children. (Id. at 9). Myers told Miller that she was not April and was not




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trying to keep him from seeing his children, and, in fact, that she had been helping

him try to see his children since he moved to Ohio from Alabama. (Id.).

       {¶14} Myers testified that, as they turned left towards Wal-Mart, Miller

struck her in the abdomen causing her to vomit in her mouth. (Id.); (Id. a 15).

Myers testified that she went into the Wal-Mart parking lot, parked the car, and

exited the vehicle toward the building, walking at a “very fast pace.” (Id. at 9-10).

According to Myers, Miller continued yelling and screaming at her as they entered

Wal-Mart, and Miller said “that he was going to hit me again and that he was

going to run my ass over.” (Id. at 10, 11). Myers testified that a Wal-Mart

customer service representative called the police. (Id.). Myers testified that the

Wal-Mart customer service representative escorted her to the back of the store,

where they waited for the police to arrive.       (Id. at 11).   She testified that,

subsequent to talking with the police, she went to the hospital since she was in a

lot of pain. (Id. at 12). Myers testified that she has several stomach issues,

including GERD, acid reflux, and gastritis. (Id.). Myers testified that the doctor

told her she had internal bruising, and Myers identified State’s Exhibit A as a copy

of the emergency room report with a final diagnosis of “abdominal pain, headache,

anxiety attack.” (Id. at 12-13).

       {¶15} Myers testified that, at the time of the incident, she was Miller’s

girlfriend, and she lived with Miller from August 18, 2011 until November 10,


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2011 either at her residence or Miller’s cousin’s residence. (Id. at 13-14). Myer

testified that Miller spent several nights with her during that time, and they had a

sexual relationship together. (Id. at 14). She testified that they prepared meals for

each other, bought food for one another, and she washed both their clothes. (Id. at

14-15). Myers testified that they lived together essentially every night between

the dates mentioned above. (Id. at 15).

       {¶16} On cross-examination, Myers testified that Miller struck her with his

right hand left of the center of her abdomen as she was turning the vehicle to the

left. (Id. at 20). Myers testified that the vehicle is a stick-shift, and the clutch is

“down in the center.” (Id. at 20-21, 8). Myers testified that she passed by the

Wal-Mart clerks and customers, without mentioning that Miller had hit her,

heading for the customer service counter because she wanted someone to help her.

(Id. at 22-23). Myers testified that the second sentence from the emergency room

reports states “[t]here’s no acute change when compared with February 2, 2000

study.” (Id. at 25). Myers testified that Miller helped to pay her car payment

while they lived together, and she was asking him about money for the car the day

of the incident, though she did not believe they were going to continue their

relationship. (Id. at 26). Myers testified that she was wearing her seatbelt the day

of the incident, but Miller was not wearing his seatbelt. (Id.).




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       {¶17} Terina Losey, the customer service manager at the Wal-Mart in

Napoleon, testified that she was working at the front-end customer service station

on November 10, 2011. (Id. at 28). Losey testified that, on that particular day,

that she witnessed a loud disturbance in the front of the store after a couple entered

the store. (Id. at 29). Losey testified that, as the couple was standing in line at the

customer service center, the man was verbally abusive, and she overheard the

woman say to the man that she should tell them that he hit her. (Id. at 30). Losey

testified that she asked the woman if she could help her, and the woman asked her

to call the police. (Id.). Losey testified that she called the police, came around the

counter and hugged the woman, and escorted her to the back office where she

could have privacy while they waited for the police. (Id.). Losey testified that she

indicated in her police statement that she overheard the man state to the woman “I

will run your ass down.” (Id. at 31). On cross-examination, Losey testified that

she did not witness any physical violence between the couple in the store, but that

Myers was on her phone trying to call someone and crying while they were

standing in line. (Id. at 32). Losey also overheard Miller tell Myers that he did

not owe her any money, and he owed money to someone else. (Id. at 33). Losey

testified that she did not witness any physical injuries on Myers, though she was

not looking for them, either. (Id.).




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       {¶18} Napoleon Police Department Patrolman Nicholas Evanoff testified

that, on November 10, 2011, he investigated a reported domestic violence incident

at the Wal-Mart in Napoleon, Henry County, Ohio.            (Id. at 35).   Patrolman

Evanoff testified that he contacted Miller, and Miller informed him that he told

Myers that he was breaking up with her and moving out of her residence while on

his way to pick her up at the library. (Id. at 35-36). Miller also informed

Patrolman Evanoff that Myers threatened to call the police and report that he hit

her if he did not give her $175 that he allegedly owed her. (Id. at 35-36). On

cross-examination, Patrolman Evanoff testified that he did not document any

injuries upon the victim in this case. (Id. at 37). On redirect, Patrolman Evanoff

testified that it is hard to get a bruise or any photograph of injuries on the stomach

area due to the soft tissue. (Id. at 38). Patrolman Evanoff testified that he asked

Myers if she had any visible injuries, and she stated she had none. (Id. at 39).

       {¶19} At this point, the State rested, and Miller moved for an acquittal

under Crim.R. 29(A), which the trial court denied. (Id. at 39-41). Thereafter, the

defense presented the testimony of the defendant. (Id. at 41).

       {¶20} Miller testified that he was currently residing between two addresses,

103 Mervin Street and 9398 County Road N., both located in Antwerp, Ohio. (Id.

at 42). Miller testified that Myers’ grandmother lives at the County Road N

address, and Myers would not allow him to legally reside with her since it would


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negatively impact her ability to obtain food stamps. (Id.). Miller testified that his

Uncle Ed Miller and Aunt Donna Miller live at the Mervin Street address, and

between the dates of August 18, 2011 to November 10, 2011, he spent nights at

this address.    (Id.).   Miller testified that he never resided with Myers’

grandmother, but he did stay with Myers at her home, which is located at 9396

County Road N. (Id.). Miller testified that Myers was his girlfriend. (Id. at 43).

Miller testified that his ex-wife, April, and he lost custody of their children to the

State of Alabama in February 2009, and he was trying to regain custody of his

children. (Id. at 43-44). Miller testified that, three weeks prior to the incident in

this case, he informed Myers that he needed to leave her residence to obtain a

larger residence to accommodate his children. (Id. at 44). Miller testified that

Myers made multiple trips to the emergency room from September to October,

and he believed that these medical trips negatively impacted his ability to regain

custody of his children since his previous wife had prescription drug problems.

(Id. at 45).

       {¶21} Miller testified that, prior to picking up Myers at the library, he

called her and informed her could not live with her anymore since he wanted to

regain custody of his children. (Id. at 46). Miller testified that Myers told him

that if he did not stay with her, she would report her car stolen. (Id.). Miller

testified that, when he arrived at the library, he exited the vehicle and attempted to


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walk away from her and the car when Myers informed him that she had his check

in her possession. (Id. at 46). According to Miller, Myers told him that he owed

her $175, but he only owed her just over $70 for money he owed her child and her

niece for band boosters and money he borrowed to get family pictures for Myers.

(Id. at 46-47). Miller testified that Myers wanted the extra money for her car

payment, which he normally paid because she was unemployed due to

absenteeism and her failure to fill out work forms. (Id. at 47). Miller testified that

he did not strike Myers while riding to Wal-Mart, and he was wearing his seatbelt

during the ride. (Id.). Miller testified that, when they parked the car at Wal-Mart,

Myers told him that if he did not pay her the $175, something bad was going to

happen to him. (Id. at 48). Miller testified that Myers then threatened to make

sure that he never sees his children again, and Myers still had his check in her

right pocket during this conversation. (Id.). Miller testified that they exited the

vehicle and walked toward Wal-Mart while she was verbally berating him, and

they went directly to the customer service center. (Id.). According to Miller,

about the time they reached the customer service center, Myers stated that she

should call the cops and report that he hit her. (Id. at 49). Miller testified that he

told Myers he would give her the money, and Myers then handed him the check, at

which point Miller called Myers’ father to ask him if Myers damaged any of his

property. (Id.). Miller testified that Myers’ father indicated that the property was


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not destroyed and he would return his property. (Id.). Miller then hung up the

phone and told Myers that he was not going to give her the money, and Myers

stated she was going to call the police, which is when the customer service woman

at Wal-Mart asked if Myers needed assistance. (Id.). Miller testified that, after the

police were called, he walked directly to the sheriff’s department to have a third

party collect his property. (Id.).

       {¶22} Miller testified that he was not checked for any physical injuries.

(Id. at 50). He further testified that, because of her short stature, Myers sits with

the drivers’ seat all the way forward so that there is no room between her and the

steering wheel. (Id.). Miller testified that there is a center console with a gear

shift between the two front seats of the car. (Id.). He further testified that it is

physically impossible to strike someone in the left abdomen with the right hand

when belted in the passenger seat of the vehicle with the steering wheel, center

console, and gear shift in the way. (Id. at 50-51). Miller testified that Myers has

stomach issues, and she needs a portion of her stomach removed, which were the

probable cause of her reported stomach pain. (Id. at 51).

       {¶23} On cross-examination, Miller testified that he helped Myers with her

car payment as a courtesy and since he was using the car on occasion. (Id. at 52).

Miller testified that he had sex with Myers when he lived with her, and they

helped each other prepare meals “[t]o an extent.” (Id.). Miller testified that he


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washed his own laundry, and his mail was sent to Myers’ grandmother’s

residence. (Id. at 53). Miller testified that he purchased his own food, and he

lived with Myers for two months. (Id. at 53-54). Miller denied threatening to run

Myers down as Losey testified. (Id. at 55).

      {¶24} Miller first argues that the State failed to present sufficient evidence

of venue. However, Miller failed to raise venue as an issue in his Crim.R. 29

motion before the trial court, and therefore, has waived it for appeal purposes.

(Dec. 8, 2011 Tr. at 40); State v. Kremer, 3d Dist. No. 15-05-05, 2006-Ohio-736, ¶

6. Regardless, the testimony at trial sufficiently demonstrated that the domestic

violence incident occurred within Henry County, Ohio, the jurisdiction of the

Napoleon Municipal Court. (Dec. 8, 2011 Tr. at 6, 16, 29, 35); R.C. 1901.02(B).

      {¶25} Miller next argues that the State failed to present sufficient evidence

that Myers was a “household member” under R.C. 2919.25. We disagree. The

State presented sufficient evidence to demonstrate that Myers was a “household

member” under R.C. 2929.25(A), because she qualified as a “person living as a

spouse.” R.C. 2919.25(F)(1)(a)(i), (F)(2). The testimony at trial demonstrated

that Miller and Myers were “boyfriend and girlfriend,” lived together for almost

three months just prior to the incident, had a sexual relationship, and shared

expenses and meals together.       Consequently, we reject Miller’s sufficiency

argument with respect to this element of the offense.


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       {¶26} We also cannot conclude that Miller’s domestic violence conviction

was against the manifest weight of the evidence. Myers testified that Miller struck

her with his right fist left of the center of her abdomen while she was driving him

to Wal-Mart. While Miller denied this allegation, Losey, an independent witness,

testified concerning events subsequent to the physical altercation, and Losey’s

testimony supported Myers’ version of the events.           Although there was no

photographic evidence of an injury, Patrolman Evanoff testified that the lack of

any physical evidence in this case was not surprising given that the injury was to

the soft tissue of the victim’s abdomen. The emergency room report admitted into

evidence indicated a final diagnosis of “abdominal pain, headache, anxiety

attack,” all consistent with Myers’ version of the events.         Both Miller’s and

Myers’ credibility was questioned at trial—Miller’s due to the State removal of his

children and his previous driving infraction and Myers’ due to her alleged

involvement in defrauding the government in obtaining food stamps. It appears

that the trial court ultimately believed Myers’ testimony over Miller’s testimony,

and credibility is primarily for the trier of fact, who is in a better position to view

the demeanor of the witness. DeHass, 10 Ohio St.2d 230, paragraph one of the

syllabus. Viewing the evidence presented at trial, we cannot conclude as a matter

of law that Miller’s conviction was against the manifest weight of the evidence.




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       {¶27} Miller’s first and second assignments of error are, therefore,

overruled.

       {¶28} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

SHAW, P.J. and WILLAMOWSKI, J., concur.

/jlr




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