[Cite as State v. Keeton, 2019-Ohio-2039.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      CLARK COUNTY

 STATE OF OHIO                                     :
                                                   :
         Plaintiff-Appellee                        :   Appellate Case No. 2018-CA-89
                                                   :
 v.                                                :   Trial Court Case No. 2017-CR-351
                                                   :
 JASON BERNARD KEETON                              :
                                                   :   (Criminal Appeal from
         Defendant-Appellant                       :    Common Pleas Court)
                                                   :

                                              ...........

                                             OPINION

                              Rendered on the 24th day of May, 2019.

                                              ...........

JOHN M. LINTZ, Atty. Reg. No. 0097715, Clark County Prosecutor’s Office, Appellate
Division, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
       Attorney for Plaintiff-Appellee

JOHN A. FISCHER, Atty. Reg. No. 0068346, 70 Birch Alley, Suite 240, Dayton, Ohio
45440
      Attorney for Defendant-Appellant

                                             .............

HALL, J.
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       {¶ 1} Jason Bernard Keeton appeals from his conviction on one count of domestic

violence, a fourth-degree felony.

       {¶ 2} Keeton advances two assignments of error. First, he contends the State

failed to prove each element of domestic violence beyond a reasonable doubt. More

specifically, he challenges the legal sufficiency of the State’s evidence to prove that the

victim was a “family or household member.” Second, he claims his conviction was against

the manifest weight of the evidence.

       {¶ 3} The record reflects that Keeton was charged with domestic violence for

hitting his girlfriend in the face during an argument outside of a bowling alley. According

to the victim, the argument involved her refusal to give Keeton a set of car keys because

she believed he had drunk too much alcohol. At trial, Keeton did not dispute hitting his

girlfriend and causing her physical harm. The only disputed issue was whether she

qualified as a “family or household member” under the domestic-violence statute, R.C.

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

physical harm to a family or household member.” As relevant here, the statute defines

“family or household member” to mean “[t]he natural parent of any child of whom the

offender is the other natural parent or is the putative other natural parent.” R.C.

2919.25(F)(1)(b). The central issue at trial was whether Keeton’s girlfriend was the

biological (i.e., “natural” parent of a child of whom Keeton was either the other biological

parent or the putative other parent. Based on the evidence presented, the jury found

Keeton guilty of domestic violence. It also found he had a prior domestic-violence

conviction, making the present offense a fourth-degree felony. The trial court imposed a

sentence that included a 17-month prison term. This appeal followed.
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       {¶ 4} In his first assignment of error, Keeton challenges the legal sufficiency of the

State’s evidence to prove that the victim was a “family or household member.” He

contends the State failed to prove that he and the victim had a child together. In support,

he cites the victim’s trial testimony that he “possibly” was the father of one of her children.

He also stresses her testimony that no genetic testing was done to establish parentage,

that he is not listed on the child’s birth certificate, that no announcements were sent out

saying that she and Keeton had a child, and that Keeton never celebrated Father’s Day

with the child. Keeton also cites the victim’s testimony that “[t]here’s always been a

possibility” someone else is the father and that she was “more hoping” that Keeton was

the father.

       {¶ 5} Under his first assignment of error, Keeton also contends the trial court

should not have allowed a detective to testify that the victim identified Keeton as the father

of one of her children. Keeton claims the trial court improperly allowed this testimony,

over objection, as an excited utterance after disallowing essentially the same testimony

from a different investigating officer the prior day. Finally, Keeton challenges the legal

sufficiency of the State’s evidence to prove, alternatively, that he was the “putative other

natural parent” of the victim’s child. While acknowledging that “putative other natural

parent” is not defined in the domestic-violence statute, Keeton claims the trial court erred

in applying the definition of “putative father” found in R.C. 3107.01(H), which is part of

R.C. Chapter 3107 pertaining to adoptions.

       {¶ 6} When a defendant challenges the sufficiency of the evidence, he is arguing

that the State presented inadequate evidence on an element of the offense to sustain the

verdict as a matter of law. State v. Hawn, 138 Ohio App.3d 449, 471, 741 N.E.2d 594 (2d
                                                                                            -4-


Dist.2000). “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.” State v.

Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

       {¶ 7} With the foregoing standards in mind, we conclude that Keeton’s domestic-

violence conviction was supported by legally sufficient evidence. The victim testified that

she was in “a relationship” with Keeton when she had the child at issue and that she had

told him he was the father. (Tr. at 129, 151.) When asked whether she had been in a

sexual relationship with anyone else during the relevant time, she did not directly answer.

She stated: “We—there was a periods of times where we broke up. And there was . . . .”

(Id.) The victim did not finish her sentence. She subsequently claimed she was “not sure”

Keeton was her child’s father. (Id. at 151.) However, she admitted telling other family

members that Keeton was the father. (Id. at 151-152.)

       {¶ 8} The victim’s mother also testified as a prosecution witness. She testified that

Keeton himself had admitted to her that he was the father of one of the victim’s children.

(Id. at 155.) A third witness, Detective Ronnie Terry, testified that he arrived at the bowling

alley and overheard the victim speaking to another officer. Terry testified that the victim’s

speech was “broken up” and she seemed “upset.” (Tr. at 186.) Over a hearsay objection,

the trial court allowed Terry to testify that he overheard the victim say Keeton was her

child’s father. (Id. at 186-187.) Terry also testified that, in his experience, victims in
                                                                                            -5-


domestic-violence cases commonly change their statements after the fact and not

infrequently become reluctant witnesses. (Id. at 188.)

       {¶ 9} In our view, the foregoing evidence was legally sufficient to support a finding

that the victim was a “family or household member” because she and Keeton were the

biological parents of one of her children. The State presented evidence that the victim

had told Keeton and other family members that he was the father. The State also

presented evidence that Keeton told the victim’s mother that he was the child’s father.

Finally, the State presented evidence that the victim told a law-enforcement officer Keeton

was the father of one of her children. This testimony, if believed, was legally sufficient to

support a finding that Keeton in fact was the “natural parent” of one of the victim’s children.

       {¶ 10} The victim’s equivocation at trial perhaps raised a credibility issue for the

jury to resolve when assessing the weight of the evidence, but it did not negate the legal

sufficiency of the State’s evidence. State v. Sibole, 2d Dist. Clark No. 2017-CA-68, 2018-

Ohio-3203, ¶ 23 (recognizing that witness credibility is not a proper matter for review

when assessing legal sufficiency of the evidence). In reaching this conclusion, we are

unpersuaded by Keeton’s argument that the record would contain legally insufficient

evidence if we excluded Detective Terry’s purportedly improper hearsay testimony. We

reject this argument for at least two reasons. First, when considering a challenge to the

legal sufficiency of the evidence, we must consider all of the evidence presented at trial,

regardless of whether it was admitted erroneously. State v. Brewer, 121 Ohio St.3d 202,

2009-Ohio-593, 903 N.E.2d 284, ¶ 17-20. Therefore, contrary to Keeton’s argument, we

are entitled to consider Terry’s testimony when evaluating the legal sufficiency of the
                                                                                           -6-


evidence.1 Second, we would find legally sufficient evidence even if we excluded Terry’s

testimony. Keeton and the victim both told other people that they had a child together.

Even without Terry’s testimony, this evidence about Keeton and the victim telling people

they had a child together was legally sufficient to support a finding that they did. See

Sibole at ¶ 22-23 (finding legally sufficient evidence to support a domestic-violence

conviction where defendant’s father testified that the victim and defendant “have a child

and further that he knows that [defendant] is the child's father because [defendant] told

him so”); see also State v. Mills, 2d Dist. Montgomery No. 21146, 2005-Ohio-2128, ¶ 18

(finding the victim’s testimony that the defendant was the father of her child, alone, legally

sufficient to support his domestic-violence conviction even absent evidence about him

signing a birth certificate, establishing paternity, or maintaining a relationship with the

child).

          {¶ 11} Because the record contains legally sufficient evidence to support a finding

that Keeton was the biological parent of one of the victim’s children, we need not dwell

on whether the State alternatively proved that Keeton was the child’s “putative other

natural parent.”2 We do note that the trial court gave an instruction defining a “family or


1Notably, Keeton concedes that the record contains legally sufficient evidence to prove
he is the parent of one of the victim’s children if Detective Terry’s testimony is considered.
See Appellant’s reply at 4 (“The jury had before it improper evidence from which it could
have concluded that Mr. Keeton was the natural parent of the alleged victim’s child.”).
2 Keeton claims the trial court “ruled that the only way to convict [him] was if he was the
putative parent of the alleged victim’s child.” (Appellant’s brief at 7.) Upon review, it is
unclear to us whether the trial court believed this. When discussing the meaning of
“putative father,” the trial court stated: “And since the jury must find that beyond a
reasonable doubt he is the putative father in this case, I believe in order for that to go to
a jury without speculation, evidence regarding the definition of putative father must be
presented * * *.” (Emphasis added) (Tr. at 213.) The trial court appears to have been
discussing what was necessary for the putative-father issue to go to the jury, not for the
                                                                                         -7-


household member,” consistent with R.C. 2919.25(F)(1)(b), as “the natural parent of any

child of whom the offender is the other natural parent or is the putative other natural

parent.” The trial court also provided the jury with the statutory definition of a “putative

father” found in R.C. 3107.01(H). In its closing argument, however, the State never

addressed the “putative father” definition provided by the trial court. Nor did the State

argue that Keeton qualified as the putative father of one of the victim’s children. Instead,

the State maintained that Keeton was the actual father because he and the victim in fact

had a child together. (Tr. at 225-226, 231-233.) In any event, Keeton’s primary complaint

on appeal is with the trial court using the definition of “putative father” found in R.C.

3107.01(H), which is in the chapter of the Revised Code dealing with adoption. Although

our analysis above makes it unnecessary to resolve this argument, we too have used the

same definition in a domestic-violence case involving the victim’s status as a family or

household member. See State v. Hazel, 2d Dist. Clark No. 2018-CA-39, 2018-Ohio-5274,

¶ 19, fn. 2. Moreover, on appeal Keeton raises a variety of due process and equal-

protection challenges to the trial court using the “putative father” definition in R.C.

3107.01(H). He did not raise these arguments below (Tr. at 211-216), and we decline to

address them in the first instance on appeal. For the foregoing reasons, we overrule

Keeton’s first assignment of error.

       {¶ 12} In his second assignment of error, Keeton contends his conviction was

against the manifest weight of the evidence. In light of the victim’s equivocation about


case to go to the jury. Regardless, as set forth above, the trial court also instructed the
jury that the victim would qualify as a “family or household member” if Keeton was the
“natural parent” of one of her children. And in our analysis above, we found legally
sufficient evidence to support a finding that Keeton was the parent of one of the victim’s
children.
                                                                                          -8-


whether he was the father of her child, Keeton claims the jury “could not possibly have

concluded” that he was the father. To the extent that the jury did reach such a conclusion,

he contends it clearly lost its way.

       {¶ 13} When a conviction is challenged on appeal as being against the weight of

the evidence, an appellate court must review the entire record, weigh the evidence and

all reasonable inferences, consider witness credibility, 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, 678 N.E.2d 541 (1997). A

judgment should be reversed as being against the manifest weight of the evidence “only

in the exceptional case in which the evidence weighs heavily against the conviction.”

State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

       {¶ 14} With the foregoing standards in mind, we conclude that Keeton’s conviction

was not against the weight of the evidence. The victim’s professed uncertainty at trial

about whether Keeton was the father of her child raised a credibility issue for the jury to

resolve. As set forth above, the State presented evidence that the victim previously had

told Keeton, other family members, and an investigating officer, without any equivocation,

that Keeton was the father of her child.3 At trial, the victim admitted telling people that

Keeton was the father but she claimed she was not really sure. The jury could have


3 Keeton’s manifest-weight argument does not require us to ignore the testimony from
Detective Terry that Keeton believes was inadmissible hearsay. As with a challenge to
the legal sufficiency of the evidence, when considering a manifest-weight argument we
may consider all of the evidence admitted at trial, regardless of whether it was admitted
improperly. State v. Rich, 2d Dist. Montgomery No. 27356, 2018-Ohio-1225, ¶ 16, citing
State v. Renner, 2d Dist. Montgomery No. 25514, 2013-Ohio-5463, ¶ 20. Once again,
however, our conclusion would remain the same even if we excluded Terry’s testimony.
                                                                                            -9-

concluded, however, that the victim was sure and that her prior statements about Keeton

being the father were true. In short, the jury reasonably could have rejected as not credible

the victim’s trial testimony about Keeton possibly not being the father, electing instead to

believe her prior statements that he was the father. Although this court may assess

credibility in the context of a manifest-weight argument, we still give substantial deference

to the factfinder’s determinations of credibility. State v. Stanaford, 2d Dist. Montgomery

No. 27940, 2019-Ohio-1377, ¶ 32. “This court will not substitute its judgment for that of

the trier of fact on the issue of witness credibility unless it is patently apparent that the

trier of fact lost its way in arriving at its verdict.” Id. at ¶ 33.

       {¶ 15} Here the jury did not clearly lose its way in believing prior statements by

both Keeton and the victim that he was the father of the victim’s child and apparently

rejecting the victim’s trial testimony that she was unsure whether Keeton was the father.

In its closing argument, the State suggested that the victim was a reluctant witness whose

demeanor demonstrated that she “didn’t want to be here.” (Tr. at 225.) Because we are

unable to observe the victim’s demeanor, we will defer to the jury on that issue. The

implication of the State’s argument was that the victim was being untruthful insofar as she

expressed doubt about Keeton being the father. On the record before us, we do not find

that the jury clearly lost its way in arriving at such a conclusion. This is not an exceptional

case in which the evidence weighed heavily against Keeton’s conviction. His second

assignment of error is overruled.

       {¶ 16} The judgment of the Clark County Common Pleas Court is affirmed.

                                          .............

FROELICH, J. and TUCKER, J., concur.
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John M. Lintz
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