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State v. Boldin

December 5, 2008

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
STEVEN W. BOLDIN, DEFENDANT-APPELLANT.



Criminal Appeal from the Chardon Municipal Court, Case No. 2007 CRB 00659. Judgment: Affirmed.

The opinion of the court was delivered by: Mary Jane Trapp, J.

OPINION

{¶1} Appellant, Steven W. Boldin ("Mr. Boldin"), appeals from a judgment of the Chardon Municipal Court convicting him of domestic violence and disorderly conduct following a bench trial. For the following reasons, we affirm.

{¶2} Substantive Facts and Procedural History

{¶3} On June 24, 2007, Mr. Boldin was arrested for domestic violence after a neighbor called 911 to report that Mr. Boldin punched Deborah Lipstreu ("Ms. Lipstreu") on the patio of the house shared by Mr. Boldin and Ms. Lipstreu. Mr. Boldin was subsequently charged with domestic violence, in violation of R.C. 2919.25(A), a misdemeanor of the first degree, and disorderly conduct, in violation of R.C. 2917.11(A)(1), a minor misdemeanor.

{¶4} At the bench trial, Ms. Lipstreu testified that she began living with Mr. Boldin on December 9, 2006. She testified about a series of domestic altercations between the couple, the first occurring on December 10, 2007, when he was upset about a friend who drove her home that day. Mr. Boldin stabbed the wall with a knife and "slapped and hit [her] a few times."

{¶5} Ms. Lipstreu testified that during the evening of January 3, 2007, he struck her again, and she had to jump out of the bedroom window to get away. Her kids called 911. After the police officers left and she returned to the house, he said "[f]amily don't do that to family," and "shoved [her], pushed [her] into the table, and threw [her] into a bathtub, choked [her], [and] broke a dresser [while] pushing [her] into the dresser."

{¶6} Ms. Lipstreu testified that on February 21, 2007, she was "hit, punched, shoved, choked again" with her "[h]ead banged against the wall." On March 10, 2007, she got "punched, hit, choked, [and her] nose [was] bit." On both of these occasions, Mr. Boldin told her he loved her so much that he was going to hurt her before she hurt him. In April of 2007, he again "punched, hit, [and] slapped" her.

{¶7} Ms. Lipstreu testified that on May 25, 2007, Mr. Boldin was unhappy with her because she had been out with friends. He threw her and she "flew across the living room on to the mattress on the floor that [they] slept on, and [her] head was repeatedly banged off the wall and [she] was choked so badly that [she] couldn't swallow for quite a while." She also suffered a black eye. She testified on that occasion she was also punched in her ovaries. When she asked Mr. Boldin later why he was punching her ovaries, he said that "the reason [a woman's ovaries are] on the inside of [her] body is that they're more sensitive than a man's ball sac, that's why there are on the inside."

{¶8} None of these incidents were reported to the police, other than the January 3, 2007 call to 911.

{¶9} On June 24, 2007, Mr. Boldin and Ms. Lipstreu argued about whether he should move in with her to her new apartment. They were both consuming alcohol. A friend of Ms. Lipstreu's was also in the house. When Ms. Lipstreu wanted to leave, Mr. Boldin would not let her leave, and would not give her friend the keys to the car either. After her friend left, Ms. Lipstreu again attempted to leave, but Mr. Boldin would not let her. She threw a bag of Doritos at him, and tried to get out through the sliding door. Mr. Boldin threw her to the patio and, while she was on the ground, Mr. Boldin punched her "with a closed fist to the head, [and] to the chest" between ten or twenty times.

{¶10} Mr. Boldin then pulled her back to the house. As he pulled her by her waist back into the kitchen, she saw a knife on the kitchen counter. She took it and stabbed Mr. Boldin in the back of his right arm and then ran out of the house.

{¶11} An ambulance later arrived and took Ms. Lipstreu to the hospital. She was examined but refused treatment for "insurance reasons." She testified that she suffered black eyes and her nose was cracked as a result of this assault.

{¶12} Alan Grysho ("Mr. Grysho"), who had been a part-time police officer for two years, next testified for the state. He testified that he lived next door to the house where the incident occurred, but he did not know either Mr. Boldin or Ms. Lipstreu well.

On June 24, 2007, he received a phone call and sat down in a chair next to a window looking right across to his neighbors' patio, twenty-five feet away. While he talked over the phone, he heard a thud and then heard Mr. Boldin saying "I need your phone." He turned to look out the window and saw Ms. Lipstreu falling backwards on her back. He then observed that Mr. Boldin "bent over and started to punch her in the facial area and chest area," "with a closed fist."

{¶13} Mr. Grysho testified that while Ms. Lipstreu was on her back, with her hands and feet in the air trying to block him from hitting her, Mr. Boldin was "swiping her hands and feet away and punching down on her," and "her head was actually bouncing off the concrete." Mr. Grysho stated that he was in shock to see that happening.

{¶14} Mr. Grysho testified he only saw Mr. Boldin hitting Ms. Lipstreu three or four times because he went to another part of the house to get off the phone so that he could call 911. He testified the person he was on the phone with heard screaming in the background and said, "Wow, you must have your kid there, because I can hear screaming." After he called 911, Mr. Grysho went back to the window and saw Mr. Boldin pulling Ms. Lipstreu back into the house. "It looked like she was trying to stay outside and he was pulling her back in."

{¶15} On cross-examination, the defense counsel asked Mr. Grysho, "Do you think it is possible, from what you witnessed, that Mr. Boldin really wasn't hitting Miss Lipstreu, but pushing, or attempting to push her or shove her away?" To this Mr. Grysho replied, "Absolutely not."

{¶16} Ana Erbeznik ("Ms. Erbeznik") next testified. Ms. Erbeznik knew Mr. Boldin since 2001 when he was dating her sister and she still sees him daily because he shares a loft for pigeons with her mom. In the past she saw Mr. Boldin with scratches and "road burn" on his face. Mr. Boldin told her that Ms. Lipstreu "ran over him with a car". She further testified that she never saw Ms. Lipstreu with any injuries and that she did not see Ms. Lipstreu after this incident.

{¶17} Mr. Boldin testified in his own behalf and gave a very different account of the altercation. He testified that he and Ms. Lipstreu moved in together six months before the incident. He also testified that he had training as a boxer. Relating the nature of their personal relationship, Mr. Boldin said that Mrs. Lipstreu was the sole provider in their household - she controlled finances and kept tabs on his comings and goings and associations. The day before this incident, she was angry because he did not want to move in with her to her new apartment. On June 24, 2007, they were both consuming alcohol and Ms. Lipstreu became very angry and started to throw things all over the house, most of which were directed at him, including an unopened beer can and an ashtray.

{¶18} Mr. Boldin testified that Ms. Lipstreu also ripped his shirt off and threw a pair of scissors at him, striking him in his arm. He tried to call a friend to pick him up, but Ms. Lipstreu jumped on him, hanging from his neck. He testified that both of them ended up in the patio, and she was hanging on to him, pulling on his shirt and hanging from his neck and scratching it.

{¶19} Mr. Boldin testified at that time he had her purse in his left hand and a phone in his right hand. He tried to keep his shirt from ripping and also tried to knock Ms. Lipstreu off him by using her purse in his hand. He testified that when he went back to the house, Ms. Lipstreu was still hanging onto him. When he tried to dial the phone, she grabbed a knife and stabbed him in the back of his arm, causing profuse bleeding. Ms. Lipstreu ran away from the house before a police officer arrived. Mr. Boldin testified that because Ms. Lipstreu was already in trouble involving the custody of her children, he wanted to protect her and therefore told the officer he was injured while falling down. The officer arrested him for domestic violence.

{¶20} Erica O'Shay ("Ms. O'Shay") also testified for the defense. She described herself as Mr. Boldin's best friend. She testified that she saw Ms. Lipstreu the day after the incident. Ms. Lipstreu wore a miniskirt and a spaghetti strap tank top with her hair pulled back in a ponytail, and thus she could observe "there was not a mark on her."

{¶21} Also testifying for the defense was Mary Elizabeth Greene ("Ms. Green"), who testified that Mr. Boldin was her loft manager for raising pigeons. She received a telephone call from Ms. Lipstreu at 10:00 on the night of the incident. Ms. Lipstreu told her she stabbed Mr. Boldin, saying, "I had to, *** he beats me all the time. You should see the bumps on my face and the blood, and my house is full of blood." Ms. Greene stated that she found the statement odd, because she saw Ms. Lipstreu almost daily when she drove Mr. Boldin to the loft, and she never saw any marks on her.

{¶22} The final two witnesses for the defense were Angela Kosie ("Nurse Kosie"), a nurse practitioner offered as an expert in the area of the musculoskeletal system and wounds, and Mr. Boldin's sister, Dawn Baynes.

{¶23} Nurse Kosie testified as to the types of injuries she would expect to see on one hit by a boxer. When shown pictures of Mr. Boldin taken by Ms. O'Shay after the altercation and asked whether the injuries depicted were consistent with being struck by a beer can, she answered, "could be". When asked by the prosecutor whether a boxer knows how to punch without causing visible injuries, her answer was, "sure".

{¶24} Ms. Baynes offered testimony about Mr. Boldin's relationship with his ex-wife, Gretchen. She said that Gretchen was not afraid of Mr. Boldin and that Gretchen controlled everything in their married life.

{¶25} Following trial, the court found Mr. Boldin guilty of domestic violence and disorderly conduct. For his domestic violence conviction, the court sentenced him to a one hundred eighty day jail term, with one hundred fifty days suspended, and also imposed a fine of $1,000, with $500 suspended. For his disorderly conduct conviction, the court imposed a fine of $150. The court stayed the execution of his sentence pending appeal.

{¶26} Mr. Boldin timely appealed, raising the following assignments of error*fn1 :

{¶27} "[1.] The trial court erred to the prejudice of defendant-appellant in denying defendant's motion for acquittal on the charges of domestic violence and disorderly conduct when the state failed to present sufficient evidence to sustain a conviction.

{¶28} "[2.] The trial court erred to the prejudice of defendant-appellant when it rejected defendant's claim of self-defense on the charges of domestic violence and disorderly conduct. T.d. 19.

{¶29} "[3.] The court erred to the prejudice of defendant-appellant in finding the defendant guilty of domestic violence and disorderly conduct when he was not the primary aggressor in the dispute and, thus should not have been arrested.

{¶30} "[4.] The trial court erred to the prejudice of defendant-appellant finding the defendant guilty of domestic violence and disturbing the peace when the verdict is against the manifest weight of the evidence.*fn2 "

{¶31} These four assignments of error relate to his conviction of both domestic violence and disorderly conduct. We address the assignments of error as they relate to his conviction of domestic violence first.

{¶32} Sufficiency of the Evidence

{ΒΆ33} In his first assignment of error, Mr. Boldin contends the trial court erred in denying his Crim.R. 29(A) motion for acquittal because the state produced insufficient evidence to support a conviction for domestic violence. Specifically, he argues that the state failed to produce sufficient evidence to prove that (1) he caused or attempted ...


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