Court of Appeals of Ohio, Eleventh District, Trumbull
Appeal from the Warren Municipal Court, Case No. 2016 CRB
Gregory V. Hicks, Warren City Law Director, (For
Michael A. Partlow, (For Defendant-Appellant).
TIMOTHY P. CANNON, J.
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.
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.
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.
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.
Appellant timely appealed his conviction and assigns one
error for our review:
"The appellant's conviction for assault is against
the manifest weight of the evidence."
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
"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.
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.
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