[Cite as State v. Lisius, 2016-Ohio-27.]


                                         COURT OF APPEALS
                                      ASHLAND COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT



STATE OF OHIO                                 :       JUDGES:
                                              :       Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                    :       Hon. Sheila G. Farmer, J.
                                              :       Hon. John W. Wise, J.
-vs-                                          :
                                              :
KARA J. LISIUS                                :       Case No. 15-COA-015
                                              :
        Defendant-Appellant                   :       OPINION




CHARACTER OF PROCEEDING:                              Appeal from the Court of Common
                                                      Pleas, Juvenile Division, Case No.
                                                      20144091



JUDGMENT:                                             Affirmed/Reversed in Part &
                                                      Remanded




DATE OF JUDGMENT:                                     January 6, 2016




APPEARANCES:

For Plaintiff-Appellee                                For Defendant-Appellant

EMILY M. BATES                                        CHRISTINA I. REIHELD
110 Cottage Street                                    P.O. Box 532
3rd Floor                                             Danville, OH 43014
Ashland, OH 44805
Ashland County, Case No. 15-COA-015                                                    2

Farmer, J.

      {¶1}   On August 26, 2014, a complaint was filed in the Juvenile Court, charging

appellant, Kara Lisius, with one count of domestic violence in violation of R.C.

2919.25(A), one count of endangering children in violation of R.C. 2919.22(A), and one

count of aggravated menacing in violation of R.C. 2903.21(A). Said charges arose from

an incident between appellant and her son, D.M., on July 17, 2014.

      {¶2}   A bench trial commenced on March 6, 2015. By judgment entry filed

same date, the trial court found appellant guilty of the domestic violence and

endangering children counts, and not guilty of the aggravated menacing count. By

judgment entry filed April 1, 2015, the trial court sentenced appellant to ninety days in

jail on each charge, to be served concurrently, suspended in lieu of probation.

      {¶3}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                            I

      {¶4}   "KARA'S CONVICTIONS FOR DOMESTIC VIOLENCE AND CHILD

ENDANGERING ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."

                                            II

      {¶5}   "THE    TRIAL     COURT     COMMITTED        REVERSIBLE       ERROR     BY

REFUSING TO ADMIT EVIDENCE OF PRIOR ACTS OF AGGRESSION BY THE

ALLEGED VICTIM TOWARD KARA, EVIDENCE OF THE ALLEGED VICTIM'S

REPUTATION FOR VIOLENCE BEHAVIOR, AND EVIDENCE OF PRIOR FALSE

CLAIMS MADE BY THE ALLEGED VICTIM."
Ashland County, Case No. 15-COA-015                                                    3


                                           III

      {¶6}   "KARA WAS PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL AS

COUNSEL FAILED TO PRESENT ANY EVIDENCE RELATED TO THE ALLEGED

VICTIM'S MENTAL HEALTH OR CORRECT MISCHARACTERIZATION OF MEDICAL

EVIDENCE AND COMMITTED VARIOUS OTHER DEFICIENCIES WHICH AFFECTED

THE OUTCOME OF THE TRIAL."

                                           IV

      {¶7}   "THE TRIAL COURT ERRED WHEN IT FAILED TO MERGE THE

ENDANGERING CHILDREN AND DOMESTIC VIOLENCE COUNTS FOR PURPOSES

OF SENTENCING."

                                            I

      {¶8}   Appellant claims her convictions were against the manifest weight of the

evidence, as the only substantive evidence presented supports her defense that she

was merely attempting to restrain her son. We disagree.

      {¶9}   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 (1st

Dist.1983). See also, State v. Thompkins, 78 Ohio St.3d 380, 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. We note the weight to

be given to the evidence and the credibility of the witnesses are issues for the trier of
Ashland County, Case No. 15-COA-015                                                       4

fact. State v. Jamison, 49 Ohio St.3d 182 (1990). The trier of fact "has the best

opportunity to view the demeanor, attitude, and credibility of each witness, something

that does not translate well on the written page." Davis v. Flickinger, 77 Ohio St.3d 415,

418, 1997-Ohio-260.

       {¶10} Appellant was convicted of domestic violence in violation of R.C.

2919.25(A) which states: "No person shall knowingly cause or attempt to cause physical

harm to a family or household member," and endangering children in violation of R.C.

2919.22(A) which states: "No person, who is the parent, guardian, custodian, person

having custody or control, or person in loco parentis of a child under eighteen years of

age or a mentally or physically handicapped child under twenty-one years of age, shall

create a substantial risk to the health or safety of the child, by violating a duty of care,

protection, or support."

       {¶11} Two versions of the events of July 17, 2014 were presented to the trial

court. Appellant claimed she was attempting to defuse the aggressive behavior of her

son, D.M., and any harm caused by her defensive actions was unintentional. T. at 105-

109, 116. She explained the following (T. at 107):



              He was getting aggressive and so I did as I have been trained by

       the counselors and the case manager at Appleseed, and I attempted to

       restrain him without causing any harm to him or myself. In the position

       that we were in facing each other, it wasn't really possible, so I tried to get

       him by the shoulders and gain control of his upper arms and hug him to
Ashland County, Case No. 15-COA-015                                                        5


       me is what I was initially trying to do, is to get him with his back to my

       chest and hug him so he could not harm myself or himself.

              At which point he started kicking and punching and we both fell to

       the ground, and he was screaming at me and I yelled back at him and that

       was at the point where my - - when I was yelling I inadvertently - - saliva

       came out of my mouth and onto him, which, you know, he was in my face,

       I couldn't you know, it was not intentional, but accidental.



       {¶12} The defensive actions were consistent with how she was instructed to

handle her son's outbursts. T. at 108-109. Unfortunately, it developed into a "scrabble

to get control of his trunk" and "it was kind of a mess." T. at 115, 116. D.M. testified

and substantiated his mother's testimony, that he was the aggressor, he tried to kick

her, and she attempted to hold him back. T. at 127-128. He denied that appellant

choked him or was trying to kill him. T. at 129. He claimed he told the police and his

neighbor, Judy Clark, that his mother tried to kill him to get his mother into trouble. T. at

47, 129-130, 132. Appellant's other son testified to D.M.'s violent acts toward their

mother when he did not get his way, and gave examples of other incidents. T. at 87-89.

Appellant's daughter testified she witnessed five to ten minutes of the incident and D.M.

was the attacker and appellant was attempting to restrain him. T. at 94-95. Appellant

held him so he would not hit her. Id. An intake investigator with the Ashland County

Department of Job and Family Services, Roland Flick, stated appellant told him D.M.

lunged at her and hit her in the face area. T. at 156.
Ashland County, Case No. 15-COA-015                                                       6


       {¶13} In sharp contrast to the above testimony, Ashland Police Officer Kim

Mager testified to the demeanor and visible marks on D.M. consistent with choking. T.

at 29-30. She noticed his voice was hoarse which is "indicative of strangulation." T. at

29. Photographs of the injuries were marked into evidence and were described in detail

by Officer Mager. T. at 31-36; State's Exhibits 1-6.

       {¶14} Donald Ballard, a physician's assistant who treated D.M. at the hospital,

testified to the injuries and found them to be consistent with choking. T. at 54-55. He

opined the injuries were fresh. T. at 56-58.

       {¶15} It is not our position to second guess the trier of fact who has the ability to

observe the demeanor and believability of the various witnesses. With two dramatically

different views of the events, the issue becomes "Whom Do You Trust?" It is obvious

appellant's children, including her son, circled the wagon to protect their mother.

       {¶16} Upon review, given the choice of who to trust versus D.M.'s recanted

testimony, we find the trial court did not err in finding the responding officer, the

unbiased neighbor, and the medical professional to be more credible. We find the trial

court did not lose its way.

       {¶17} Assignment of Error I is denied.

                                               II

       {¶18} Appellant claims the trial court erred in denying the admission of the

victim's reputation for violent behavior and false claims which was necessary to

establish her claim of self-defense. We disagree.

       {¶19} First, although the state objected to evidence concerning D.M.'s violent

behavior, the trial court permitted testimony on the issue. T. at 81-87. D.M.'s brother
Ashland County, Case No. 15-COA-015                                                      7


testified to numerous incidents of D.M.'s violent behavior when denied something and

then acting out against appellant. T. at 87-89. Appellant also testified to D.M.'s violent

history and the training she received to protect her son and herself. T. at 107, 108-109.

Appellant testified to D.M. having a counselor, a case manager, a psychiatrist, and a

school counselor. T. at 109. There is no other proffer or argument as to any other

testimony that appellant wished to present but was denied.

         {¶20} An error not raised in the trial court must be plain error for an appellate

court to reverse. State v. Long, 53 Ohio St.2d 91 (1978); Crim.R. 52(B). In order to

prevail under a plain error analysis, appellant bears the burden of demonstrating that

the outcome of the trial clearly would have been different but for the error. Long. Notice

of plain error "is to be taken with the utmost caution, under exceptional circumstances

and only to prevent a manifest miscarriage of justice." Id. at paragraph three of the

syllabus.

         {¶21} Appellant testified to being afraid of being harmed by D.M., as he had

been violent with her for many years. T. at 106. The last time prior to the incident sub

judice was two days. T. at 106-107. Within the record is the physical size difference of

appellant and D.M. D.M. was taller and stronger than his mother. T. at 109.

         {¶22} Upon review, we find no actual denial of any relevant testimony by the trial

court.

         {¶23} Assignment of Error II is denied.

                                             III

         {¶24} Appellant claims she was denied effective assistance of trial counsel by

counsel's failure to introduce evidence of D.M.'s mental health, to object and correct
Ashland County, Case No. 15-COA-015                                                    8


mischaracterized evidence, to properly prepare her claim of self-defense, to inform her

of the consequences of a conviction to her state license, to present evidence contra to

the state's witnesses, and to argue Evid.R. 404 in a self-defense case. We disagree.

      {¶25} The standard this issue must be measured against is set out in State v.

Bradley, 42 Ohio St.3d 136 (1989), paragraphs two and three of the syllabus. Appellant

must establish the following:



             2. Counsel's performance will not be deemed ineffective unless and

      until counsel's performance is proved to have fallen below an objective

      standard of reasonable representation and, in addition, prejudice arises

      from counsel's performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2

      O.O.3d 495, 358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S.

      668, 104 S.Ct. 2052, 80 L.Ed.2d 674, followed.)

             3. To show that a defendant has been prejudiced by counsel's

      deficient performance, the defendant must prove that there exists a

      reasonable probability that, were it not for counsel's errors, the result of

      the trial would have been different.



      {¶26} As to evidence of D.M.'s mental health status, the record discloses that

D.M. saw numerous mental health professionals and had recurrent incidents of

violence. T. at 89, 109.

      {¶27} Appellant argues her trial counsel failed to effectively cross-examine the

physician's assistant, Donald Ballard. Mr. Ballard's testimony was cumulative to Officer
Ashland County, Case No. 15-COA-015                                                   9


Mager's testimony and the photographs of D.M. immediately after the incident. There

were no determinative findings, only Mr. Ballard's observations of redness and swelling.

T. at 54-57.

       {¶28} Appellant also argues her trial counsel failed to properly prepare her, to

inform her of the consequences of a conviction, and to present further evidence on her

defense. None of these claims are supported by the record. Appellant testified and

defended herself on the issue of self-defense. T. at 107-109. There is no proof of any

other evidence. At the time of the incident, only three persons were present, appellant,

D.M., and his sister.

       {¶29} Upon review, we do not find any ineffective assistance of counsel.

       {¶30} Assignment of Error III is denied.

                                           IV

       {¶31} Appellant claims the trial court erred in not following R.C. 2941.25(B) and

not merging the offenses of domestic violence and endangering children. We agree.

       {¶32} R.C. 2941.25 governs multiple counts and states the following:



               (A) Where the same conduct by defendant can be construed to

       constitute two or more allied offenses of similar import, the indictment or

       information may contain counts for all such offenses, but the defendant

       may be convicted of only one.

               (B) Where the defendant's conduct constitutes two or more

       offenses of dissimilar import, or where his conduct results in two or more

       offenses of the same or similar kind committed separately or with a
Ashland County, Case No. 15-COA-015                                                 10


      separate animus as to each, the indictment or information may contain

      counts for all such offenses, and the defendant may be convicted of all of

      them.



      {¶33} The Supreme Court of Ohio once again redefined "separate animus"

in State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, paragraph two of the syllabus and

¶ 30-31, respectively:



              Two or more offenses of dissimilar import exist within the meaning

      of R.C. 2941.25(B) when the defendant's conduct constitutes offenses

      involving separate victims or if the harm that results from each offense

      is separate and identifiable.

              ***

              Rather than compare the elements of two offenses to determine

      whether they are allied offenses of similar import, the analysis must focus

      on the defendant's conduct to determine whether one or more convictions

      may result because an offense may be committed in a variety of ways and

      the offenses committed may have different import. No bright-line rule can

      govern every situation.

              As a practical matter, when determining whether offenses are allied

      offenses of similar import within the meaning of R.C. 2941.25, courts must

      ask three questions when defendant's conduct supports multiple offenses:

      (1) Were the offenses dissimilar in import or significance? (2) Were they
Ashland County, Case No. 15-COA-015                                                11


      committed separately? and (3) Were they committed with separate animus

      or motivation?    An affirmative answer to any of the above will permit

      separate convictions. The conduct, the animus, and the import must all be

      considered.



      {¶34} In reviewing the evidence, there is but one single act of conduct of which

appellant was convicted. Appellant knowingly caused physical harm to D.M. No other

separate conduct was alleged. Further, there was no separate identifiable harm, nor

was there a separate animus.

      {¶35} Therefore, the state must elect which of the two offenses it wishes to

pursue in sentencing.

      {¶36} Assignment of Error IV is granted.
Ashland County, Case No. 15-COA-015                                              12


      {¶37} The judgment of the Court of Common Pleas of Ashland County, Ohio,

Juvenile Division is hereby affirmed in part and reversed in part, and the matter is

remanded to said court for further proceedings consistent with this opinion.

By Farmer, J.

Gwin, P.J. and

Wise, J. concur.




SGF/sg
