[Cite as State v. Lewis, 2014-Ohio-642.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

STATE OF OHIO                                         C.A. No.      13CA0032-M

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
PHILLIP A. LEWIS                                      COURT OF COMMON PLEAS
                                                      COUNTY OF MEDINA, OHIO
        Appellant                                     CASE No.   12-CR-0669

                                  DECISION AND JOURNAL ENTRY

Dated: February 24, 2014



        CARR, Presiding Judge.

        {¶1}     Appellant, Phillip Lewis, appeals the judgment of the Medina County Court of

Common Pleas. This Court affirms.

                                                 I.

        {¶2}     On November 28, 2012, the Medina County Grand Jury returned an indictment

charging Lewis with one count of domestic violence in violation of R.C. 2919.25(A), a felony of

the fourth degree. On December 10, 2012, Lewis appeared for arraignment and entered a plea of

not guilty. After a two-day trial, the jury found Lewis guilty of the only count in the indictment.

On March 18, 2013, Lewis appeared for a sentencing hearing and was sentenced to a ten-month

term of incarceration. The trial court issued its sentencing entry on March 26, 2013.

        {¶3}     On appeal, Lewis raises one assignment of error.
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                                                II.

                                  ASSIGNMENT OF ERROR

       THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE JURY’S
       VERDICT OF “GUILTY” AS TO THE SOLE COUNT OF DOMESTIC
       VIOLENCE, AND THE CONVICTION WAS AGAINST THE MANIFEST
       WEIGHT OF THE EVIDENCE, WHERE THE DEFENDANT-APPELLANT
       DID NOT “KNOWINGLY CAUSE OR ATTEMPTED TO CAUSE PHYSICAL
       HARM” TO THE ALLEGED VICTIM.

       {¶4}    In his assignment of error, Lewis argues that his domestic violence conviction

was not supported by sufficient evidence and was against the manifest weight of the evidence.

Both of Lewis’ challenges stem from the premise that the State failed to adequately demonstrate

that Lewis caused physical harm to his girlfriend, Amber Powell. This Court disagrees.

Sufficiency Challenge

       {¶5}    A review of the sufficiency of the State’s evidence and the manifest weight of the

evidence adduced at trial are separate and legally distinct determinations. State v. Gulley, 9th

Dist. Summit No. 19600, 2000 WL 277908 (Mar. 15, 2000). When reviewing the sufficiency of

the evidence, this Court must review the evidence in a light most favorable to the prosecution to

determine whether the evidence before the trial court was sufficient to sustain a conviction. State

v. Jenks, 61 Ohio St.3d 259, 279 (1991).

       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.

Id. at paragraph two of the syllabus.

       {¶6}    Lewis was convicted under R.C. 2919.25(A), which states, “No person shall

knowingly cause or attempt to cause physical harm to a family or household member.” Pursuant
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to R.C. 2919.25(D)(3), a violation of R.C. 2919.25(A) is a felony of the fourth degree if the

offender has a prior domestic violence conviction. At trial, the State introduced certified journal

entries demonstrating that Lewis had been previously been convicted of domestic violence.

       {¶7}     “A person acts knowingly, regardless of his purpose, when he is aware that his

conduct will probably cause a certain result or will probably be of a certain nature. A person has

knowledge of circumstances when he is aware that such circumstances probably exists.” R.C.

2901.22(B). “Physical harm to persons” is defined as “any injury, illness, or other physiological

impairment, regardless of its gravity or duration.” R.C. 2919.25(F)(1)(a)(i) defines “Family or

household member” as “[a]ny *** spouse, a person living as a spouse, or a former spouse of the

offender.” A “‘[p]erson living as a spouse’ means a person who is living or has lived with the

offender in a common law marital relationship, who otherwise is cohabiting with the offender, or

who otherwise has cohabited 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).

       {¶8}     Six witnesses testified on behalf of the State at trial, including several eye

witnesses to the incident. On the evening of November 11, 2012, Lewis and his girlfriend

Amber Powell hosted a party at their apartment in Medina, Ohio. Lewis and Powell lived

together with Powell’s infant daughter. The testimony at trial revealed that during the early

morning hours of November 12, 2013, Lewis and Powell got into a heated argument that

escalated into a physical altercation.

       {¶9}     Noelle Boulton and Sara Holler were guests of Lewis and Powell on the night of

the incident.   Boulton described the event as a “little party” where people were drinking.

Boulton testified that during the party, an altercation broke out between Lewis and Powell.

Boulton saw Powell outside on the ground and heard Powell screaming, “Help me, help me[.]”
                                                 4


Boulton further testified, “I ran over and jumped on top of [Lewis], tried to get him in a choke

hold, get him off her.” After Boulton was able to get Lewis off Powell, Lewis pushed Boulton to

the ground. Holler also attended the gathering. Holler testified that she saw Lewis throw Powell

into a table. Holler also heard Powell screaming for help. Like Boulton, Holler attempted to

grab Lewis and pull him away from Powell. When Holler attempted to intervene, Lewis grabbed

Holler by the neck and threw her to the ground. Holler further testified that after she and

Boulton separately attempted to restrain Lewis, Lewis did not continue the altercation with

Powell.

       {¶10} Jessica Turpin is a neighbor of Lewis and Powell who testified at trial. Turpin

testified that in the early morning of November 12, 2013, she heard a commotion outside her

window. When she looked out the window to see what was going on, Turpin noticed that her

patio table had been knocked over into her sliding glass door. Turpin also saw Lewis and Powell

engaged in a verbal dispute that escalated into a shoving match. Turpin testified, “at one point,

Amber was leaning up against the back of my grill, which eventually had gotten knocked over by

the shoving, and then she was on the ground. And at that point, Phillip [Lewis] was hitting her.”

Turpin continued that both individuals were attempting to hit each other, but that Lewis had

Powell pinned down.      Turpin testified that Lewis hit Powell at least three times.       After

witnessing the altercation, Turpin called 911.

       {¶11} Sergeant Nathan Simpson and Officer Brandon Grimm of the Medina police

responded to the scene. Officer Grimm testified that when they encountered Lewis, he was

pointing at Powell and “just yelling at her hysterically.” Officer Grimm testified that Lewis kept

screaming, “See what you did,” and “I’m not going to jail.”
                                                 5


       {¶12} The evidence presented at trial, when construed in the light most favorable to the

State, was sufficient to demonstrate that Lewis caused physical harm to Powell. Holler testified

that she watched Lewis throw Powell into a table, and Boulton testified that she saw Powell on

the ground crying for help. Both Holler and Boulton testified that they were thrown to the

ground by Lewis when they attempted to intervene on Powell’s behalf. Turpin testified that she

witnessed Lewis hit Powell at least three times. In light of the aforementioned evidence, Lewis

cannot prevail on his argument that the State failed to demonstrate that he knowingly caused

physical harm to Powell. Jenks, 61 Ohio St.3d at 279.

Manifest Weight Challenge

       {¶13} A conviction that is supported by sufficient evidence may still be found to be

against the manifest weight of the evidence. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997);

Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 12.

       In determining whether a criminal conviction is against the manifest weight of the
       evidence, an appellate court must review 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). “When a court of appeals reverses a

judgment of a trial court on the basis that the verdict is against the weight of the evidence, the

appellate court sits as a ‘thirteenth juror’ and disagrees with the fact[-]finder’s resolution of the

conflicting testimony.” Thompkins at 387, quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982). An

appellate court should exercise the power to reverse a judgment as against the manifest weight of

the evidence only in exceptional cases. Otten at 340.

       {¶14} In support of his manifest weight argument, Lewis emphasizes that his own

testimony at trial, as well as the testimony of Powell, demonstrates that he never struck Powell
                                                   6


on the night in question. Lewis further contends that several of the State’s witnesses mistakenly

perceived the argument between Lewis and Powell as a physical confrontation.

       {¶15} At trial, Lewis and Powell testified that two unidentified men got into an

altercation during the gathering at their apartment. Both Lewis and Powell testified that Powell

approached the two men and attempted to break up the fight before Lewis ultimately pulled her

away from the skirmish. Lewis testified that there were two primary reasons that he and Powell

proceeded to get into a heated argument. First, Lewis testified that he was upset that Powell had

not locked the front door to the apartment. Second, Lewis was angry because he gleaned from

Powell’s eating habits that she might be pregnant, and Lewis did not want Powell getting

involved in a fight if she was pregnant.1 Lewis testified that as their argument continued, Powell

backed up and inadvertently knocked over the grill. As the grill fell, Powell also fell to the

ground. When Lewis went to help Powell up, both Boulton and Holler charged him and

attempted to restrain him. Lewis testified that he did not understand why the women were

touching him given that he was just trying to help Powell.

       {¶16} Powell offered a slightly different version of the incident than Lewis. According

to Powell, Lewis grabbed her by the shoulders and pulled her back when she attempted to break

up the fight between the two unidentified men. As Lewis pulled Powell back, Powell “fell into

the grill” but she never fell to the ground. Lewis, on the other hand, fell to the ground as the grill

collided with the patio table. Powell also testified that while she and Lewis tend to speak loudly,

Lewis was not yelling at her when the police arrived. Both Lewis and Powell testified that Lewis

did not strike Powell.




       1
           Lewis learned later that Powell was not, in fact, pregnant at the time of the incident.
                                                 7


       {¶17} After a review of the entire record, we cannot conclude that this is the rare and

exceptional case where the jury clearly lost its way. As discussed above, the State provided

testimony from two witnesses who observed Lewis physically assault Powell, and a third witness

who saw Powell on the ground screaming for help. While Lewis challenges the credibility of

those witnesses by stressing that both he and Powell testified that no physical altercation took

place, we note that “[t]his Court will not overturn the trial court’s verdict on a manifest weight of

the evidence challenge only because the trier of fact chose to believe certain witnesses’

testimony over the testimony of others.” State v. Brown, 9th Dist. Wayne No. 11CA0054, 2013-

Ohio-2945, ¶ 42, citing State v. Crowe, 9th Dist. Medina No. 04CA0098-M, 2005-Ohio-4082, ¶

22. In light of the ample evidence presented by the State which demonstrated that Lewis

physically assaulted Powell, this Court cannot conclude that Lewis’ domestic violence

conviction resulted in a manifest miscarriage of justice.

       {¶18} Lewis’ sole assignment of error is overruled.

                                                III.

       {¶19} Lewis’ assignment of error is overruled. The judgment of the Medina County

Court of Common Pleas is affirmed.

                                                                                Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.
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       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                    DONNA J. CARR
                                                    FOR THE COURT



WHITMORE, J.
HENSAL, J.
CONCUR.


APPEARANCES:

JOSEPH F. SALZGEBER, Attorney at Law, for Appellant.

DEAN HOLMAN, Prosecuting Attorney, and MATTHEW A. KERN, Assistant Prosecuting
Attorney, for Appellee.
