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State v. Bilyk

Court of Appeals of Ohio, Fifth District, Licking

May 7, 2018

STATE OF OHIO Plaintiff - Appellee
v.
JOSEPH BILYK Defendant-Appellant

          Appeal from the Licking County Municipal Court, Case No. No. 17 CRB 00369

          For Plaintiff-Appellee J. MICHAEL KING Assistant Law Director

          For Defendant-Appellant KEVIN J. GALL Burkett & Sanderson, Inc.

          Hon. William B. Hoffman, P.J., Hon. Patricia A. Delaney, J., Hon. Craig R. Baldwin, J.

          OPINION

          BALDWIN, J.

         {¶1} Appellant, Joseph Bilyk, appeals his conviction for domestic violence, a violation of R.C. 2919.25(C) and a fourth degree misdemeanor, in the Licking County Municipal Court. Appellee is the State of Ohio.

         FACTS AND PROCEDURAL POSTURE

         {¶2} Appellant and Jill Herrington-Bilyk have been married for 2 years, have an 18-month-old daughter and, at the time of the incident that forms the basis of the charges, they resided together in Licking County. Ms. Herrington-Bilyk had planned to go to appellant's parents' home with her daughter on February 24, 2017 after she finished work. She was preparing to leave for work and to take her daughter to the babysitter when appellant asked her for money. She refused and the appellant became angry. She testified that appellant grabbed her by the upper body, threw her to the bed, and started shaking her violently while she was on the bed. He started screaming wordlessly, putting his face close enough to his wife's face that she felt as if he were spitting on her while yelling. The child was on the same bed and was crying during the confrontation.

         {¶3} When appellant released Ms. Herrington-Bilyk, she grabbed her daughter and fled in fear without putting shoes or a coat on the child. She delivered the child to the babysitter and went to the Johnstown Police Department where she discovered that she lived outside the Village, so the Licking County Sheriff's Office had jurisdiction. She contacted the Sheriff's office and Deputy Brill responded and spoke with her. During his testimony, Deputy Brill recalled that Ms. Herrington-Bilyk was disheveled, upset and clearly had been crying.

         {¶4} Appellant denies any argument took place, that he was screaming or that he shook his wife. He contends there was some discussion about whether the parties' daughter should be taken to the babysitter that day, or whether he should watch their daughter and deliver her to Ms. Herrington-Bilyk at her place of work. Appellant testified that he was aware that his wife and daughter were going to Youngstown after his wife finished work. However, in a handwritten statement made by appellant after he was arrested he stated that "my wife mentioned that she was leaving town with my 19 month old daughter but would not give further details about the trip." (Defendant's Exhibit A). Within the same statement he contended "we raised our voices, " but during his testimony when asked whether his voice was elevated he responded "barely we were more condescending may be a little irritated towards each other but there was no yelling or I mean it just it did not happen." (Transcript, P. 100, lines 6-8).

         {¶5} Mr. Bilyk was charged with one count of domestic violence in violation of R.C. 2919.25(C) a misdemeanor of the fourth degree. He was arraigned on February 27, 2017 and, on July 31, 2017, the case was presented to a jury. He was found guilty and sentenced to 17 days in jail, with credit for 3 days served, and fined $250.00.

         {¶6} On September 19, 2017 appellant requested leave to file an untimely notice of appeal and on November 2, 2017 we granted his motion. Appellant filed his notice of appeal and submitted two assignments of error:

         {¶7} I. THE DEFENDANT-APPELLANT'S CONVICTION FOR DOMESTIC VIOLENCE BY THREATS WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE.

         {¶8} II. THE CONVICTION OF THE DEFENDANT-APPELLANT FOR DOMESTIC VIOLENCE BY THREATS WAS AGAINST THE ...


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