[Cite as State v. Thoennes, 2014-Ohio-2524.]
                            STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT

STATE OF OHIO,                                 )
                                               )   CASE NO. 13 MA 52
        PLAINTIFF-APPELLEE,                    )
                                               )
        - VS -                                 )         OPINION
                                               )
MATTHEW J. THOENNES,                           )
                                               )
        DEFENDANT-APPELLANT.                   )


CHARACTER OF PROCEEDINGS:                          Criminal Appeal from County Court
                                                   #4, Case No. 12 CRB 1132.


JUDGMENT:                                          Conviction Affirmed. Reversed
                                                   and Remanded for Resentencing.


APPEARANCES:
For Plaintiff-Appellee:                            Attorney Paul J. Gains
                                                   Prosecuting Attorney
                                                   Attorney Ralph M. Rivera
                                                   Assistant Prosecuting Attorney
                                                   21 W. Boardman St., 6th Floor
                                                   Youngstown, OH 44503

For Defendant-Appellant:                           Attorney Albert Palombaro
                                                   4822 Market Street, Suite 301
                                                   Youngstown, OH 44512



JUDGES:
Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Cheryl L. Waite


                                                   Dated: June 4, 2014
[Cite as State v. Thoennes, 2014-Ohio-2524.]
DeGenaro, P.J.
        {¶1} Defendant-Appellant, Matthew J. Thoennes appeals the April 3, 2013
judgment of the Mahoning County Court #4 convicting him of assault. Thoennes asserts
that his conviction is against the manifest weight of the evidence and that he was
denied the right of allocution at sentencing.
        {¶2} Thoennes's arguments are meritorious in part.           Although there was
competent credible evidence to support his conviction, the trial court failed to afford
Thoennes his right to allocution. Accordingly, Thoennes's conviction is affirmed, but his
sentence is reversed, and this matter is remanded to the trial court for resentencing.
                                 Facts and Procedural History
        {¶3} On October 6, 2012, Thoennes was arrested by the Austintown Police
Department for Assault in violation of R.C. 2903.13, a first degree misdemeanor. The
matter proceeded to a bench trial on April 3, 2013.
        {¶4} The State’s first witness was Edward Riley, who testified that he resided in
Austintown Township with his girlfriend Tina Pastore and her son in a duplex apartment.
Johnathan Faircloth, Thoennes, and Thoennes's girlfriend resided in the adjoining duplex.
        {¶5} Riley worked on October 6, 2012, and returned home around 5:00 p.m. He
was drinking a beer when his neighbors, Thoennes and Faircloth, walked into his
apartment with his girlfriend's son. Riley stated both Thoennes and Faircloth were
intoxicated. After Faircloth accused him of pushing Pastore, Riley asked both men to
leave. Riley and Faircloth then began physically fighting at the bottom of the steps by the
living room within his apartment.
        {¶6} Riley further testified Thoennes then jumped on him, began choking and
hitting him in the head, and Faircloth rejoined the altercation. This was the first time the
police were called but they left after Riley informed them he did not want anything done,
believing the altercation was over. When asked if he was seriously injured or harmed at
that time, Riley stated that his face was swollen and his glasses were broken.
        {¶7} Later that evening, Thoennes returned and began verbally taunting Riley.
The police were called for a second time and Riley again stated he didn’t want anyone
                                                                                       -2-


arrested. The police indicated that if they were called back again someone would be
arrested.
       {¶8} Riley further testified that about an hour later, as Riley and Pastore were
going to bed, Riley heard Thoennes yelling outside. Riley went downstairs, opened the
door, exchanged profanities with Thoennes, then attempted to shut the door. Thoennes
broke the window to the screen door and dragged Riley outside onto the ground.
Thoennes then hit and kicked him in the face and ribs, and Riley lost consciousness,
although he could not remember how many times or how long he was unconscious. Riley
identified Thoennes as the man who assaulted him, and confirmed that they were both
under the influence of alcohol at the time. Riley identified State's Exhibit B, a photograph
taken by the police of his injuries.
       {¶9} On cross, Riley stated he did not want to be at court and he had contacted
the prosecutor's office and told them he wanted the case to be over. Defense counsel
had Riley read the statement he gave on the date of the incident, and counsel questioned
him on inconsistencies such as not mentioning that the parties were drinking, not knowing
how the door was damaged, and whether or not he was unconscious. Further, counsel
questioned whether Riley's girlfriend, Pastore, was having an affair with Faircloth, to
which Riley replied he had no idea. Riley clarified that Thoennes was not attempting to
break up a fight between Faircloth and Riley but actually joined in the fight.
       {¶10} Pastore testified that her neighbors, Faircloth and Thoennes followed her
son into their home. When they accused Riley of physically abusing her, she tried to tell
them it wasn't true, but Faircloth and Riley started fighting on the couch and Thoennes
came in and started choking Riley. The police arrived but no one was charged in that first
altercation.
       {¶11} Regarding the final altercation, Pastore testified that Thoennes was outside
calling Riley names, and that they went downstairs after hearing glass shatter. She saw
Riley being pulled through the door but was unable to see who it was. Pastore called the
police, and through the door saw Faircloth kicking Riley in the head and Thoennes
choking him. Afterwards she noticed Riley's face was swollen and red, his eye was red
                                                                                          -3-


and his glasses broken. She further identified State's Exhibit B, the photograph of Riley's
injuries.
       {¶12} On cross, Pastore stated Riley did not push, shove or physically abuse her,
but conceded that the night before Riley had witnessed her and Faircloth kissing. She
also reiterated that during the fight Thoennes was not trying to pull Riley and Faircloth
apart, he was choking Riley.
       {¶13} Faircloth was the only witness who testified for the defense and admitted
that he had pled guilty for his involvement in the altercation. Faircloth confirmed that he
and Riley got into an argument on the day in question, and that Thoennes was trying to
separate him and Riley. Faircloth stated that he later returned after he heard Riley
yelling at Pastore again. Faircloth continued that he was the one who banged on,
slammed, and smashed the door. He started fighting with Riley again and Thoennes
tried to separate them. When the police were called the third time Faircloth ran inside
his side of the duplex and hid; after Thoennes was taken to jail Faircloth turned himself
in.
       {¶14} The trial court convicted Thoennes of Assault and sentenced him to 180
days in jail, with 165 days suspended, a $250.00 fine, court costs and 12 months of
community control.
                                         Manifest Weight
       {¶15} In his second of two assignments of error, which we will address out of order
for clarity of analysis, Thoennes asserts:
       {¶16} "THE MANIFEST WEIGHT OF THE EVIDENCE DID NOT SUPPORT
APPELLANT'S CONVICTION FOR ASSAULT."
       {¶17} "Weight of the evidence concerns the inclination of the greater amount of
credible evidence, offered in a trial, to support one side of the issue rather than the other."
State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541.                    A
conviction will only be reversed as against the manifest weight of the evidence in
exceptional circumstances. Id. This is because the triers of fact are in a better position to
determine credibility issues since they personally viewed the demeanor, voice inflections
                                                                                          -4-


and gestures of the witnesses. State v. Hill, 75 Ohio St.3d 195, 204, 661 N.E.2d 1068
(1996); State v. DeHass, 10 Ohio St.2d 230, 231, 227 N.E.2d 212 (1967).
       {¶18} To determine whether a verdict is against the weight of the evidence, an
appellate court must review the entire record, weigh the evidence and all reasonable
inferences 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. Thompkins at 387.
       {¶19} Ultimately, "the reviewing court must determine whether the appellant or the
appellee provided the more believable evidence, but must not completely substitute its
judgment for that of the original trier of fact 'unless it is patently apparent that the
factfinder lost its way.' " State v. Pallai, 7th Dist. No. 07 MA 198, 2008-Ohio-6635, ¶31,
quoting State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964, ¶81
(2d Dist.). In other words, "[w]hen there exist two fairly reasonable views of the evidence
or two conflicting versions of events, neither of which is unbelievable, it is not our province
to choose which one we believe." State v. Dyke, 7th Dist. No. 99 CA 149, 2002-Ohio-
1152, *2, citing State v. Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d 125 (7th Dist.1999).
       {¶20} To convict Thoennes of assault in violation of R.C. 2903.13(A), the trial
court had to find that Thoennes knowingly caused or attempted to cause physical harm to
another. Physical harm includes "any injury, illness, or other physiological impairment,
regardless of its gravity or duration." R.C. 2901.01(A)(3). Under R.C. 2901.22(B),
someone 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."
       {¶21} Thoennes argues the State failed to prove that he knowingly caused or
attempted to cause physical harm to Riley, and further, that Riley wasn't actually harmed
as he did not go to the hospital or seek medical care. Regarding the second contention,
both Riley and Pastore testified consistently about Riley's facial injuries. Riley stated he
had a bloodied lip, facial abrasions, and swelling on his cheeks and nose. Pastore
testified that Riley's face was swollen, red, and that his eye was red. Both Riley and
Pastore identified the photograph taken by the police of Riley's injuries.
                                                                                        -5-


         {¶22} As for Thoennes knowingly causing those injuries, Riley and Pastore both
testified that Thoennes initiated three separate confrontations. In the first incident,
Thoennes choked Riley and hit him in the head. In the third incident Riley testified that
Thoennes dragged him outside and repeatedly hit and kicked him in the face and ribs.
Although Pastore could not see who pulled Riley through the door, she testified that
Faircloth and Thoennes initiated both the altercations, and that she saw Thoennes
choking Riley after he was pulled through the door.
         {¶23} Thoennes argues for the first time on appeal that the testimony of Faircloth
combined with that of Pastore establishes that Riley had a reason to be angry with
Faircloth prior to and on the date of the incident. Moreover, because Faircloth and
Thoennes lived together, Riley was also angry with Thoennes, providing a motive for
Riley to be untruthful at trial. However, a review of the record demonstrates this theory
was not explored at trial. Instead, trial counsel pursued the theory that Thoennes was
breaking up the altercations. Thoennes further contends that Faircloth’s testimony that
only he harmed Riley and that Thoennes tried to break up the fight constitutes reasonable
doubt.
         {¶24} The credibility of the witnesses is primarily for the trial court to determine
and deference must be given to same. DeHass, supra. When two reasonable views or
conflicting versions of the evidence exist, it is not the province of an appellate court to
choose which version it believes, but rather whether there is competent, credible
evidence in the record supporting the verdict. Here the essential elements of Theonnes's
assault charge meets this standard. Thus we cannot say that the verdict was against the
manifest weight of the evidence. Accordingly, Thoennes’s second assignment of error is
meritless.
                                             Allocution
         {¶25} In his first and final of two assignments of error, Thoennes asserts:
         {¶26} "THE TRIAL COURT COMMITTED PLAIN ERROR IN FAILING TO
PERMIT THE DEFENDANT THE RIGHT OF ALLOCUTION."
                                                                                      -6-


       {¶27} Ohio Crim.R. 32 (A)(1) provides that at the time of imposing sentence, the
trial court "shall afford counsel an opportunity to speak on behalf of the defendant and
address the defendant personally and ask if he or she wishes to make a statement in his
or her own behalf or present any information in mitigation of punishment." An absolute
right of allocution is conferred by Ohio Crim.R. 32(A)(1). State v. Green, 90 Ohio St.3d
352, 358, 738 N.E.2d 1208 (2000).
       {¶28} "The right of allocution applies to both the defendant and his attorney."
State v. Land, 7th Dist. 00-C.A.-261, 2002-Ohio-1531, ¶24 citing Defiance v. Cannon
(1990), 70 Ohio App.3d 821, 827-828, 592 N.E.2d 884; Crim.R. 32(A)(1). "A sentencing
court is required to ask the defendant personally if he wants to make a statement or
present information in mitigation." State v. Clunen, 7th Dist. 12 CO 30, 2013-Ohio-5525
¶18 citing Civ.R. 32(A)(1).    "Trial courts must painstakingly adhere to Crim.R. 32
guaranteeing the right of allocution. A Crim.R. 32 inquiry is much more than an empty
ritual: it represents a defendant's last opportunity to plead his case or express remorse."
Green, 90 Ohio St.3d, 359-360.
       {¶29} A review of the record demonstrates that the trial court did not address
Thoennes directly. The only inquiry from the bench was as follows: "Does the defense
wish to be heard on any sentencing issues?"          Counsel addressed the trial court.
However, nothing was said to or by Thoennes. As the trial court did not address
Theonnes directly, his first assignment of error is meritorious.
       {¶30} In sum, Thoennes's conviction is not against the manifest weight of the
evidence. However, the trial court failed to afford Thoennes the right of allocution.
Accordingly, Thoennes’s conviction is affirmed, but his sentence is reversed and this
matter is remanded to the trial court for resentencing.
Donofrio, J., concurs.
Waite, J., concurs.
