Court of Appeals of Ohio, Second District, Montgomery
Criminal Appeal from Municipal Court Trial Court Case No.
D. SEXTON, Atty. Reg. No. 0070892, Attorney for
DAVID TURNER, Atty. Reg. No. 0017456, Attorney for
1} Atayvia Matthews appeals from her conviction and
sentence on misdemeanor charges of menacing and aggravated
2} In her sole assignment of error, Matthews
challenges the legal sufficiency and manifest weight of the
evidence to sustain her aggravated menacing conviction.
3} The present appeal stems from a dispute that
occurred at the manager's office in a Dayton-area
apartment complex. A resident, Tameka Hines, went to the
office to complain about children writing on her car.
Matthews and her brother followed Hines to the office because
they believed Hines was going to accuse Matthews's
children. The complex manager, Dwanna Tory, testified at
trial that she refused to speak to Matthews's brother
because he was not a resident. According to Tory, Matthews
became enraged and threatened her. Specifically, Tory
testified that Matthews told her, "B**ch, I will f***
you up. I will bash your head in the m***** f******
wall." (Tr. at 15). Tory testified that Matthews
"balled up" her fist and got nose to nose with Tory
while "yelling, cursing, spitting in my face telling me
how she would bash my m***** f****** head in. She would beat
my a**" (Id. at 16). Tory responded by calling
911. She testified that she was afraid and feared for her
life. (Id. at 18). Hines, the complaining tenant,
observed the incident. She recalled that Matthews had her
fists "balled up" and was "moving back and
forth like she wanted some type of altercation."
(Id. at 76). Hines testified that Matthews was
"very confrontational" and was "breathing real
heavy." (Id.). Hines stated that she heard
Matthews threaten to "bash [Tory's] head in"
and call her "all types of b**ches." (Id.
at 74). Based on Matthews's demeanor, Hines perceived her
as very threatening. (Id. at 77). Hines never heard
Tory threaten Matthews. (Id. at 75).
4} Matthews's brother, Kevin, testified as a
defense witness. He testified that Tory and Matthews were
yelling and cursing at each other, but he did not recall
Matthews threatening Tory. (Id. at 100-102). Kevin
stated that Tory actually grabbed Matthews's arm.
(Id. at 101). He then intervened to defuse the
situation. (Id. at 101). Kevin also confirmed that
Matthews recently had undergone a cesarean-section birth,
implying that she would have been incapable of fighting.
(Id. at 125). The final witness was Matthews's
mother, Michelle Matlock. She testified that she was visiting
Matthews, who recently had given birth. (Id. at
127). Matlock stated that she spoke with Matthews on the
telephone while Matthews and Tory were arguing. (Id.
at 128). Matlock advised Matthews to stop arguing and to call
the police. (Id.). Matlock testified that she did
not overhear any threats from anyone while she was on the
telephone with Matthews. (Id. at 130). Specifically,
she never heard Matthews threaten to do anything to Tory.
(Id. at 131-132).
5} Based on the evidence presented, the trial court
found Matthews guilty of menacing and aggravated menacing. It
imposed suspended jail sentences for both offenses and
credited her for time already served. The trial court also
imposed and suspended two fines, placed Matthews on probation
for eighteen months, and imposed other conditions. (Tr. at
169-170; Doc. # 78). This appeal followed.
6} In her assignment of error, Matthews challenges
the legal sufficiency and manifest weight of the evidence to
sustain her aggravated menacing conviction. Matthews contends
the prosecution failed to prove that Tory believed Matthews
was going to cause Tory serious physical harm.
Matthews makes two arguments in support. First, she cites
portions of Tory's trial testimony to suggest that Tory
feared some physical harm on the day in question but not
serious physical harm. Second, she asserts that Tory's
testimony about fearing for her life is belied by a recording
of the 911 call to police, which does not reflect such fear.
7} When a defendant challenges the sufficiency of
the evidence, she is arguing that the State presented
inadequate evidence on an element of the offense to sustain
the verdict as a matter of law. State v. Hawn, 138
Ohio App.3d 449, 471, 741 N.E.2d 594 (2d Dist. 2000).
"An appellate court's function when reviewing the
sufficiency of the evidence to support a criminal conviction
is to examine the evidence admitted at trial to determine
whether such evidence, if believed, would convince the
average mind of the defendant's guilt beyond a reasonable
doubt. The relevant inquiry is whether, after viewing the
evidence in a light most favorable to the prosecution, any
rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt."
State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492
(1991), paragraph two of the syllabus.
8} Our analysis is different when reviewing a
manifest-weight argument. When a conviction is challenged on
appeal as being against the weight of the evidence, an
appellate court must review the entire record, weigh the
evidence and all reasonable inferences, consider witness
credibility, and determine whether, in resolving conflicts in
the evidence, 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, 678
N.E.2d 541 (1997). A judgment should be reversed as being
against the manifest weight of the evidence "only in the
exceptional case in which the evidence weighs heavily against
the conviction." State v. Martin, 20 Ohio
App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
9} With the foregoing standards in mind, we conclude
that Matthews's aggravated menacing conviction is
supported by legally sufficient evidence and is not against
the weight of the evidence. The prosecution's evidence
supports a finding that Matthews threatened to
"bash" Tory's head into a wall and to
"f*** her up." While making these threats, Matthews
was enraged, standing nose to nose with Tory with her fists
balled as if she wanted to fight. Tory testified that she was
afraid and feared for her life. This evidence, if believed,
is legally sufficient to establish that Matthews knowingly
caused Tory to believe that Matthews would cause serious
physical harm in violation of R.C. 2903.21(A), the aggravated
10} For purposes of aggravated menacing,
"serious physical harm" includes, inter alia, (1)
physical harm that involves temporary, substantial
incapacity, (2) physical harm that involves some permanent
disfigurement or some temporary serious disfigurement, and
(3) "physical harm that involves acute pain of such
duration as to result in substantial suffering or that
involves any degree of prolonged or intractable pain."
R.C. 2901.01(A)(5). Matthews's threat to "bash"
Tory's head into a ...