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State v. Howell

Court of Appeals of Ohio, Seventh District, Mahoning

February 28, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
ANTHONY HOWELL DEFENDANT-APPELLANT

         Criminal Appeal from the Youngstown Municipal Court of Mahoning County, Ohio Case No. 15 CRB 28

          For Plaintiff-Appellee: Atty. Dana Lantz Youngstown City Prosecutor Atty. Jeffrey Moliterno Assistant City Prosecutor

          For Defendant-Appellant: Atty. John A. Ams

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

          OPINION

          WAITE, J.

         {¶1} Appellant Anthony Howell appeals a February 24, 2015 Youngstown Municipal Court judgment entry in which he was found guilty of domestic violence and criminal damaging. Appellant solely appeals his domestic violence conviction. Appellant contends that his conviction is not supported by sufficient evidence and is against the manifest weight of the evidence. For the reasons provided, Appellant's arguments are without merit and the judgment of the trial court is affirmed.

         Factual and Procedural History

         {¶2} On January 10, 2015, the victim drove her two children to their uncle's house. Shortly after she parked her car, Appellant, who is the father of the children, arrived at the house. Appellant saw the victim and confronted her. They began to argue and, at some point, the victim retrieved a baseball bat from her trunk to "scare" Appellant. They struggled over control of the bat. During the struggle, Appellant let go of the bat and it struck the victim in the face, causing an injury to her lip. The victim dropped the bat and walked back to her car, which was still running.

         {¶3} Because the driver's side door was broken, she entered through the passenger side door, intending to slide to the driver's seat. The two children remained in the backseat of the vehicle. While the victim was inside the car and in the process of heading to the driver's side seat, Appellant picked up the bat and smashed the driver's side window. The glass shattered and fell on the seat and on one of the children, but did not reach the victim. Appellant was charged with domestic violence, a misdemeanor of the first degree in violation of R.C. 2919.25(A) and criminal damaging, a misdemeanor in the second degree, in violation of R.C. 2909.06(A)(1).

         {¶4} On January 12, 2015, Appellant was arraigned and pleaded not guilty to both charges. On February 24, 2015, a bench trial was held. Appellant was found guilty of both charges. We note that the trial court determined that insufficient evidence was present to find Appellant guilty of domestic violence for the injury to the victim's lip, but found there was sufficient evidence that he smashed the window while she was inside the car to sustain a conviction. The trial court imposed the following sentence: 80 hours of community service, anger management counseling, financial sanctions, and three years of intensive probation. Appellant timely appeals only his domestic violence conviction.

         ASSIGNMENT OF ERROR NO. 1

         APPELLANT'S DOMESTIC VIOLENCE CONVICTION IS NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE.

         {¶5} Sufficiency of the evidence is a legal question dealing with adequacy. State v. Pepin-McCaffrey, 186 Ohio App.3d 548, 2010-Ohio-617, 929 N.E.2d 476, ¶ 49 (7th Dist.), citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). "Sufficiency is a term of art meaning that legal standard which is applied to determine whether a case may go to the jury or whether evidence is legally sufficient to support the jury verdict as a matter of law." State v. Draper, 7th Dist. No. 07 JE 45, 2009-Ohio-1023, ¶ 14, citing State v. Robinson, 162 Ohio St. 486, 124 N.E.2d 148 (1955). To discharge the state's burden when prosecuting a criminal offence, "probative evidence must be offered" on "every material element which is necessary to constitute the crime." State v. Billman, 7th Dist. Nos. 12 MO 3, 12 MO 5, 2013-Ohio-5774, ¶ 8, citing State v. Martin, 164 Ohio St. 54, 57, 128 N.E.2d 7 (1955). In a sufficiency review, a reviewing court does not determine "whether the state's evidence is to be believed, but whether, if believed, the evidence against a defendant would support a conviction." State v. Rucci, 7th Dist. No. 13 MA 34, 2015-Ohio-1882, ¶ 14, citing State v. Merritt, 7th Dist. No. 09 JE 26, 2011-Ohio-1468, ¶ 34.

         {¶6} Appellant argues that the victim initiated the incident when she retrieved a baseball bat from her trunk and swung it at him. While he concedes that he struck the driver's side window of the victim's car with the bat, he argues that since none of the shattered glass actually struck her, she ...


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