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City of Warren v. Chipps

Court of Appeals of Ohio, Eleventh District, Trumbull

August 21, 2017

CITY OF WARREN, Plaintiff-Appellee,
v.
DANIEL CHIPPS, Defendant-Appellant.

         Criminal Appeal from the Warren Municipal Court, Case No. 2016 CRB 000957.

          Gregory V. Hicks, Warren City Law Director, (For Plaintiff-Appellee).

          Michael A. Partlow, (For Defendant-Appellant).

          OPINION

          TIMOTHY P. CANNON, J.

         {¶1} Appellant, Daniel Chipps, appeals from the December 6, 2016 judgment of the Warren Municipal Court, convicting him on one count of misdemeanor assault following a bench trial. At issue is whether the conviction was against the manifest weight of the evidence. For the reasons that follow, the judgment of the trial court is affirmed.

         {¶2} On May 9, 2016, appellant was charged in the municipal court, by way of a complaint, with one count of assault, a first-degree misdemeanor, in violation of Warren Codified Ordinance 537.03(a). The charge stems from an altercation that occurred between appellant and Thomas Trunick around 8:00 a.m. on May 8, 2016. The incident occurred at the residence of Tiffany Pirivatric, Mr. Trunick's step-granddaughter, in Warren, Ohio. Appellant was Tiffany's boyfriend and often stayed at her residence.

         {¶3} The case was tried to the court on November 29, 2016. Appellee, the city of Warren, presented the testimony of Mr. Trunick. The defense presented the testimony of two witnesses: Tiffany and her neighbor, Ms. Trevonne Davis.

         {¶4} The municipal court issued findings of fact and conclusions of law on December 6, 2016. Based on those findings and conclusions, the trial judge found appellant guilty of assault. Appellant was sentenced to serve 180 days in jail, with 170 days suspended, and fined $100.00. Appellant was also ordered to serve a five-year probationary period with conditions, including having no contact with Mr. Trunick.

         {¶5} Appellant timely appealed his conviction and assigns one error for our review:

         {¶6} "The appellant's conviction for assault is against the manifest weight of the evidence."

         {¶7} To determine whether a verdict is against the manifest weight of the evidence, a reviewing court must consider the weight of the evidence, including the credibility of the witnesses and all reasonable inferences, to determine whether 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. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).

         {¶8} "This court [is] not in a position to view the witnesses who testified below and observe their demeanor, gestures and voice inflections, and use those observations in weighing the credibility of the proffered testimony." State v. Long, 127 Ohio App.3d 328, 335 (4th Dist.1998) (citations omitted). Therefore, in weighing the evidence submitted at a criminal trial, an appellate court must give substantial deference to the factfinder's determinations of credibility. State v. Tribble, 2d Dist. Montgomery No. 24231, 2011-Ohio-3618, ¶30, citing State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus.

         {¶9} To convict appellant of assault, the city of Warren was required to prove, beyond a reasonable doubt, that appellant violated Warren Codified Ordinance 537.03(a) by knowingly causing or attempting to cause physical harm to Mr. Trunick.

         {¶10} The evidence established Mr. Trunick arrived at Tiffany's home, unannounced and uninvited, around 8:00 a.m. on May 8, 2016. His intention was to speak to Tiffany regarding a $1700 loan she owed her grandmother, Mr. Trunick's wife. Mr. Trunick held the screen door open and knocked on the interior door. Although Mr. Trunick denied being angry or loud, the trial court found the other testimony more credible in that regard, which was that Mr. Trunick was yelling and pounding loudly on the door. The noise awoke appellant and Tiffany; it ...


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