[Cite as State v. Wynn, 2017-Ohio-8045.]



                          IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                           HAMILTON COUNTY, OHIO




STATE OF OHIO,                             :   APPEAL NO. C-160782
                                               TRIAL NO. C-16CRB-22762
     Plaintiff-Appellee,                   :

  vs.                                      :        O P I N I O N.

SHAUN WYNN,                                :

     Defendant-Appellant.                  :




Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: October 4, 2017



Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex Scott Havlin,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and David Hoffman,
Assistant Public Defender, for Defendant-Appellant.
                 OHIO FIRST DISTRICT COURT OF APPEALS



MYERS, Judge.

       {¶1}   Following a bench trial, defendant-appellant Shaun Wynn was

convicted of domestic violence for assaulting his wife, Jennifer Wynn. He now

appeals.

       {¶2}   At trial, Jennifer testified that Shaun Wynn was her husband and that

they had been married nearly seven years. Jennifer and Wynn had no children

together, but she had four children from another relationship.

       {¶3}   Jennifer had left her two youngest children with Wynn at his sister’s

house so that she could take her older children to Kings Island. When Jennifer

arrived to pick up the younger children, Wynn got into the passenger seat of her car

and began choking and punching her.

       {¶4}   On cross-examination, defense counsel asked Jennifer whether she

and Wynn had been separated on the date of the offense. Jennifer responded, “No.

We were not living together, but we were still together.” Jennifer testified that she

was living at her mother’s house. When defense counsel asked Jennifer, “And Shaun

was staying with his sister?,” Jennifer responded, “Yes.” At the close of the state’s

case, the trial court denied Wynn’s Crim.R. 29 motion for a judgment of acquittal.

       {¶5}   In the defense case, Wynn testified that he and Jennifer had lived

together until they lost their home. After that, the two lived separately. He admitted

that he and Jennifer had argued on the date of the offense, but he denied that he had

put his hands on her.

       {¶6}   The trial court found Wynn guilty of domestic violence and sentenced

him to 180 days’ incarceration.




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       {¶7}   In his first assignment of error, Wynn challenges the trial court’s

denial of his Crim.R. 29 motion for a judgment of acquittal. The standard of review

for the denial of a Crim.R. 29 motion is the same as the standard for a challenge to

the sufficiency of the evidence. See State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-

2417, 847 N.E.2d 386, ¶ 37. In reviewing a challenge to the sufficiency of the

evidence, this court must determine whether, after construing all reasonable

inferences in favor of the state, any reasonable trier of fact could find that the state

presented evidence to prove each of the essential elements of the offense beyond a

reasonable doubt. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541

(1997); State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of

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

paragraph two of the syllabus.

       {¶8}   Wynn was convicted of domestic violence pursuant to R.C. 2919.25(A),

which prohibits knowingly causing or attempting to cause physical harm to a family

or household member. The term “family or household member” is defined to include

a spouse “who is residing or has resided with the offender.” R.C. 2919.25(F)(1)(a)(i).

Wynn argues that the state failed to prove in its case-in-chief that his wife was a

“family or household member” for purposes of R.C. 2919.25(A).

       {¶9}   In denying Wynn’s Crim.R. 29 motion, the trial court stated that it

interpreted Jennifer’s testimony to mean that she and her husband “are not legally

separated; they just weren’t living together at that moment.” We find the trial court’s

interpretation of Jennifer’s testimony is reasonable and that her testimony gives rise

to a reasonable inference that they resided together previously.        Construing all

reasonable inferences in favor of the state, we hold that the state presented sufficient


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                  OHIO FIRST DISTRICT COURT OF APPEALS



evidence in its case-in-chief that Wynn and his wife had lived together at some point

during their seven-year marriage. See Jenks, 61 Ohio St.3d at 273, 574 N.E.2d 492.

Therefore, we overrule the first assignment of error.

       {¶10} In his second assignment of error, Wynn argues that his conviction

was based upon insufficient evidence and was against the manifest weight of the

evidence. In reviewing a challenge to the weight of the evidence, we must review the

entire record, weigh the evidence and all reasonable inferences, consider the

credibility of the 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. Thompkins,

79 Ohio St.3d at 387, 678 N.E.2d 541.

       {¶11} Wynn contends that his testimony that he and Jennifer had lived

together “at one point in time” was insufficient to establish that she was a “family or

household member.”      We disagree.    As we have concluded, the state presented

sufficient evidence to establish that element of the offense.        Wynn’s testimony

further supported this element.

       {¶12} Wynn also argues that Jennifer’s testimony regarding what occurred

and the physical injuries she sustained was not credible. The determination of

credibility was for the trial court. See State v. DeHass, 10 Ohio St.2d 230, 227

N.E.2d 212 (1967), paragraph one of the syllabus. Our review of the record does not

persuade us that the trial court lost its way and created a manifest miscarriage of

justice in finding Wynn guilty of the offense. See Thompkins at 387. We overrule the

second assignment of error and affirm the trial court’s judgment.

                                                                    Judgment affirmed.


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                  OHIO FIRST DISTRICT COURT OF APPEALS


MILLER, J., concurs.
CUNNINGHAM, P.J., concurs separately.

CUNNINGHAM, P.J., concurring separately.

       {¶13} I concur in the judgment only, because I disagree with the majority’s

analysis under the first assignment of error. A motion for a judgment of acquittal

should not be granted when reasonable minds can reach different conclusions as to

whether each element of the crime charged has been proved beyond a reasonable

doubt. See State v. Bridgeman, 55 Ohio St.2d 261, 381 N.E.2d 184 (1978), syllabus.

I cannot conclude that the evidence at the close of the state’s case-in-chief met the

beyond a reasonable doubt standard with respect to the “family or household

member” element of the domestic-violence offense. But because Wynn waived his

right to challenge the sufficiency of the evidence at the close of the state’s case by

presenting a defense, and his testimony filled the gap in the state’s evidence, he has

failed to demonstrate reversible error.

       {¶14} As relevant to this case, a “family or household member” is defined as

a “spouse” who “is residing or has resided with the offender.”                   R.C.

2919.25(F)(1)(a)(i).   The domestic-violence statute thus required proof that the

spouse had resided with the offender at some point, see State v. Sims, 169 Ohio

App.3d 579, 2006-Ohio-6285, 863 N.E.2d 1110, ¶ 13 (1st Dist.), and that proof could

be by direct or circumstantial evidence. See State v. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492 (1991), paragraph one of the syllabus. Reasonable inferences are allowed

to fill in any gaps in the evidence. See State v. Guidugli, 157 Ohio App.3d 383, 2004-

Ohio-2871, 811 N.E.2d 567, ¶ 17 (1st Dist.). An inference is “ ‘a conclusion which, by

means of data founded upon common experience, natural reason draws from facts




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which are proven.’ ” Id., quoting State v. Nevius, 147 Ohio St. 263, 71 N.E.2d 258

(1947).

          {¶15} The majority holds that Jennifer’s testimony was sufficient to establish

the “is residing or has resided” requirement because one could reasonably infer from

her testimony that she and Wynn had resided together previously.          But I do not

agree that one could reasonably infer this from her testimony. Jennifer clearly

testified that she and Wynn were not living together at the time of the offense. And

she was never asked if she had ever lived with Wynn.

          {¶16} The trial court inferred that Jennifer and Wynn had lived together at

some point because when Jennifer was asked on cross-examination whether she and

Wynn had been separated on the date of the offense, she replied, “No. We were not

living together, but we were still together.” The court “interpreted” this testimony to

mean that they were “not legally separated; they just weren’t living together at that

moment” and, based on this interpretation, inferred that Jennifer and Wynn had

previously lived together.     The majority finds to be reasonable the trial court’s

interpretation of this testimony and its inference. But the fact that the parties were

“legally separated” does not support an inference or a determination that they had

ever resided together. Jennifer’s testimony, even when viewed in the light most

favorable to the state, is too ambivalent to reasonably suggest that they had once

lived together. Moreover, as the domestic-violence statute emphasizes by requiring

evidence that the victim was not just a spouse, but a spouse who had once resided

with the offender, one cannot infer from the mere fact that Jennifer and Wynn were

married and not legally separated that they had resided together at one point.




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                    OHIO FIRST DISTRICT COURT OF APPEALS



        {¶17} Nonetheless, I would affirm Wynn’s conviction because Wynn

presented a defense, and he testified that he and Jennifer had lived together. This

court adheres to the rule “that a defendant who presents evidence and testifies in his

defense waives his right to challenge the sufficiency of the evidence at the close of the

state’s case.” Guidugli, 157 Ohio App.3d 383, 2004-Ohio-2871, 811 N.E.2d 567, at ¶

14.1   See United States v. Black, 525 F.2d 668, 669 (6th Cir.1975) (“The rule is

settled that when a defendant introduces evidence, he waives any objection to the

denial of his motion to acquit at the close of the government’s case. The defendant

may renew his motion at the close of all the proof * * * but the court will then

consider the sufficiency of the evidence on the record as a whole and not the

sufficiency of the government’s case in chief.”)(Citations omitted.) See also Smith v.

Massachusetts, 543 U.S. 462, 472, 125 S.Ct. 1129, 160 L.Ed.2d 914 (2005) (“Many

jurisdictions still follow the traditional rule that after a trial or on appeal, the

sufficiency-of-the-evidence challenges are reviewed on the basis of the entire record,


1 In Guidugli, we noted that the Second Appellate District in State v. Parks, 56 Ohio App.3d 8, 9-
10, 564 N.E.2d 747 (2d Dist.1990) no longer adhered to this rule. The Parks court reasoned that
the Ohio Supreme Court’s holding in Helmick v. Republic-Franklin Ins. Co., 39 Ohio St.3d 71, 529
N.E.2d 464 (1988), that a defendant in a civil case does not waive a claim of error by presenting
evidence after the denial of a motion for a directed verdict pursuant to Civ.R. 50(A)(2), should
apply equally in the criminal forum when a defendant presents evidence after the denial of his
Crim.R. 29(A) motion at the conclusion of the state’s case and renews his motion at the close of all
evidence. Other districts have similarly held that a criminal defendant may present evidence
without waiving his right to challenge on appeal the sufficiency of the evidence at the close of the
state case, if the motion is renewed, also relying primarily on Helmick. See, e.g., State v.
Whiteaker, 188 Ohio App.3d 489, 2010-Ohio-3502, 935 N.E.2d 934, ¶ 15 (8th Dist.); State v.
Brown, 90 Ohio App.3d 674, 685, 630 N.E.2d 397 (11th Dist.1993).
    This court in Guidugli rejected Parks, emphasizing that the Ohio Supreme Court’s holding in
Helmick was based in part on language found in Civ.R. 50(A)(2) that is absent from Crim.R. 29,
and that the reasoning of Helmick did not apply to a criminal case. We explained, “Unlike a civil
case, the state may not depose the defendant or call the defendant as a witness on cross-
examination in its case-in-chief. The Fifth Amendment to the United States Constitution
guarantees that a defendant charged with a crime may refuse to testify or otherwise present a
defense. But if, as here, the criminal defendant does take the stand to assert a defense such as
self-defense, in which he essentially admits his guilt absent a finding of justification, there is
absolutely no logic or justice in a rule that would require an appellate court to reverse his
conviction because of the insufficiency of the evidence before he testified. Such a rule could
theoretically allow murders to go free on records that conclusively established their guilt.”
Guidugli at ¶ 16.


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                  OHIO FIRST DISTRICT COURT OF APPEALS



even if the defendant moved for acquittal when the prosecution rested and the court

erroneously denied that motion.”).

       {¶18} Accordingly, upon review of the entire record in this case, the evidence

was adequate to withstand Wynn’s sufficiency- and weight-of-the-evidence

challenges. Therefore, I would overrule the assignments of error and affirm the trial

court’s judgment.



Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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