[Cite as State v. Irvin, 2012-Ohio-2279.]


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

STATE OF OHIO                                        C.A. No.       25887

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
ANTHONY D. IRVIN                                     COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 10 08 2280

                                  DECISION AND JOURNAL ENTRY

Dated: May 23, 2012



        MOORE, Judge.

        {¶1}     Appellant, Anthony Irvin, appeals the judgment of the Summit County Court of

Common Pleas. We affirm.

                                                I.

        {¶2}     Kristin Colvin and Anthony Irvin have two children in common. In 2007, Colvin

obtained a civil protection order against Irvin, which prohibited him from coming within 100

yards of Colvin or their children. The civil protection order was effective for five years from the

date of issuance. However, on August 4, 2010, the children were visiting with Irvin and his

relatives at Irvin’s mother’s home. On that date, Colvin arrived at the paternal grandmother’s

home to pick up the children, and an altercation between Irvin and Colvin ensued.

        {¶3}     As a result of these events, the Summit County Grand Jury indicted Irvin on

charges of violating a protection order in violation of R.C. 2919.27, a fifth degree felony,
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domestic violence in violation of R.C. 2919.25(A), a fourth degree felony, and domestic violence

in violation of R.C. 2919.25(C), a second degree misdemeanor.

          {¶4}   On March 10, 2011, a bench trial commenced. The trial court found Irvin guilty

of the two felony charges and not guilty of the misdemeanor charge. The court sentenced Irvin

to 24 months of community control.

          {¶5}   Irvin timely filed a notice of appeal and raises one assignment of error for our

review.

                                                    II.

                                     ASSIGNMENT OF ERROR

          [IRVIN]’S CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF
          THE EVIDENCE.

          {¶6}   In his sole assignment of error, Irvin argues that his convictions were against the

manifest weight of the evidence. We do not agree.

          {¶7}   When a defendant asserts that his 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).

          {¶8}   Here, Irvin was convicted of violating a protection order in violation of R.C.

2919.27 and domestic violence in violation of R.C. 2919.25(A). R.C. 2919.27 provides that no

person shall recklessly violate the terms of a protection order, and violation of this section

constitutes a fifth degree felony where the offender has previously violated this section. R.C.

2919.25(A) provides that “[n]o person shall knowingly cause or attempt to cause physical harm
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to a family or household member.” A “family or household member” includes “[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). Where the offender “previously has pleaded guilty to or

been convicted of domestic violence,” a violation of R.C. 2919.25(A) is a felony of the fourth

degree. R.C. 2919.25(D)(3).

       {¶9}      At trial, the parties stipulated to the accuracy of the State’s exhibits, which

included the trial court docket of a 2006 conviction for domestic violence, a copy of the civil

protection order that Colvin obtained against Irvin in 2007, and the trial court docket of a 2007

conviction for violating the terms of this protection order. Irvin makes no argument as to the

weight of the evidence in regard to the civil protection order or to the two prior convictions, and,

accordingly, we will confine our discussion to the evidence of the remaining elements of the

above charges.

       {¶10} At trial, Colvin, two witnesses, and the responding officer testified on behalf of

the State. Colvin testified that she had agreed to allow Irvin’s brother to visit with the children

from August 1, 2011 until August 4, 2011. On August 4, 2011, Colvin received a telephone call

from Irvin’s brother requesting that she pick up the children from Irvin’s mother’s house. She

and three of her friends went to the paternal grandmother’s house, and, when they arrived, Irvin

emerged from the residence followed by the children. As she was packing the children’s

belongings into the trunk of her friend’s car, Irvin began to walk toward the street, but then

turned and punched Colvin in her face. Irvin then continued to strike her, and she fell and lost

consciousness for a moment. Her friends then attempted to intervene, but Irvin “started reaching

like he had a gun and said, ‘Don’t be dumb,’” at which point two of her friends returned to the

vehicle. However, one of her friends was able to successfully intervene.           Colvin left the
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residence and drove her children and friends to her home, and then left to go to her mother’s

home to contact the police. As a result of the attack, Colvin was unable to eat for a few days,

suffered from a headache, suffered pain in her mouth, and sustained injuries to her elbow.

       {¶11} On cross-examination, Colvin acknowledged inconsistencies with her prior

statement, where she had reported to police officers that her son emerged from the home prior to

Irvin and that Irvin’s mother had called her to pick up the children. However, Colvin posited

that she might have incorrectly written these statements because she was upset over the incident.

Colvin also confirmed that there was a delay between the incident and her report to the police.

However, Colvin explained that her landlord had performed a background check on her which

revealed her past legal issues with Irvin, and she was concerned about having the police arrive at

her residence. Therefore, the delay between the incident and the report was due to her driving

the children to her home before driving to her mother’s home to telephone the police. In

addition, Colvin acknowledged that she had told the police that she would seek medical

assistance at the hospital, but she ultimately did not go to the hospital. However, Colvin

explained that she wanted to go home to be with her children because they had been gone for

several days and had witnessed the altercation between their parents. Colvin further explained

that she did not go to the hospital because she was scheduled to work early the next morning;

however, her injuries prevented her from attending work as scheduled.

       {¶12} Colvin’s friends Rashae Greer and Assia Brown testified that they rode with

Colvin to pick up the children on the date at issue. Brown testified that she witnessed Irvin and

Colvin arguing when Colvin was packing the children’s belongings into the trunk, and although

she was unable to see Irvin’s initial punch to Colvin’s face, she was able to see other physical

movements of the two that were consistent with Irvin striking Colvin in the face. Greer testified
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that, although she did not witness Irvin strike Colvin, she heard Colvin yell that he had struck

her. Greer and Brown testified that they then exited the vehicle to intervene, but Irvin continued

to attack Colvin. Brown testified that Irvin knocked Colvin to the ground, and while Brown was

assisting her to her feet, she heard Irvin say words to the effect of, “Don’t be dumb,” or “[D]on’t

be stupid,” which she interpreted as implying that Irvin had a gun. Brown was able to assist

Colvin into the vehicle, and, Brown and Greer accompanied Colvin to her home and stayed with

the children while Colvin went to her mother’s home.

       {¶13} Officer Jeffrey Kubasek of the City of Akron Police Department testified that he

responded to Colvin’s call on the date at issue. When he arrived at her mother’s house, the

officer noticed swelling on the right side of Colvin’s face and a scratch on her elbow. The

officer told Colvin that she should seek medical treatment, and Colvin responded that she would

go to the hospital.

       {¶14} As part of the defense, Irvin testified that Colvin assaulted him on the date at

issue, but he did not retaliate against her. Instead, he left the residence after providing Colvin

with the children’s belongings.

       {¶15} In his merit brief, Irvin argues that Colvin’s testimony was inconsistent with, and

contained facts absent from the initial police report, and argues that Colvin lacked credibility.

Irvin further argues that Colvin’s decision to wait one-and-a-half hours before calling the police

and her failure to seek medical treatment after the incident indicate that her testimony is

unreliable, and the testimony of Greer and Brown was unreliable due to their friendship with

Colvin. However, this Court is mindful that “[e]valuating the evidence and assessing credibility

are primarily for the trier of fact.” State v. Shue, 97 Ohio App.3d 459, 466 (9th Dist.1994),

citing Ostendorf-Morris Co. v. Slyman, 6 Ohio App.3d 46, 47 (8th Dist.1982) and Crull v. Maple
                                                 6


Park Body Shop, 36 Ohio App.3d 153, 154 (12th Dist.1987). This is because the trier of fact “is

best able to view witnesses and observe their demeanor, gestures and voice inflections, and use

these observations in weighing the credibility of the proffered testimony.” State v. Cook, 9th

Dist. No. 21185, 2003-Ohio-727, ¶ 30 quoting Giurbino v. Giurbino, 89 Ohio App.3d 646, 659

(8th Dist.1993).

       {¶16} After reviewing the entire record, weighing the inferences and examining the

credibility of witnesses, we cannot say that the trial court clearly lost its way and created a

manifest miscarriage of justice in finding Irvin guilty of violating a protection order and

domestic violence. Accordingly, Irvin’s sole assignment of error is overruled, and the judgment

of the Summit 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 Summit, 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.

       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.
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      Costs taxed to Appellant.




                                             CARLA MOORE
                                             FOR THE COURT



WHITMORE, P. J.
DICKINSON, J.
CONCUR.


APPEARANCES:

KRISTEN KOWALSKI, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
