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State v. Fulton

Court of Appeals of Ohio, Eleventh District, Portage

June 24, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
ZACHARY A. FULTON, Defendant-Appellant.

          Criminal Appeal from the Portage County Case No. 2018 CR 00343. Court of Common Pleas

          Victor V. Vigluicci, Portage County Prosecutor, and Theresa M. Scahill, Assistant Prosecutor, (For Plaintiff-Appellee).

          Shubhra N. Agarwal, (For Defendant-Appellant).

          OPINION

          THOMAS R. WRIGHT, P.J.

         {¶1} Appellant, Zachary Fulton, appeals his domestic violence conviction following a jury trial. We affirm in part, reverse in part, and remand for resentencing.

         {¶2} Fulton was charged with possession of marijuana, obstructing official business, and domestic violence. Following the close of evidence, the state dismissed the possession charge, and the court granted Fulton's motion for acquittal on obstructing official business. Fulton was convicted of the remaining count, domestic violence in violation of R.C. 2919.25, a fourth-degree felony.

         {¶3} He raises five assigned errors:

         {¶4} "[1.] The trial court committed reversible error when it overruled Mr. Fulton's Crim.R. 29(A) motion for acquittal because the evidence was insufficient to support a conviction.

         {¶5} "[2.] Mr. Fulton's conviction for domestic violence was against the manifest weight of the evidence.

         {¶6} "[3.] The trial court committed reversible and plain error when it sentenced Mr. Fulton without properly giving him the notifications concerning post-release control.

         {¶7} "[4.] The trial court committed reversible and plain error by ordering the defendant to pay an 'assessment and recoupment fee.'

         {¶8} "[5.] The trial court committed reversible error in assessing a fine and an 'assessment and recoupment fee' without making a finding that he had the ability to pay those amounts."

         {¶9} We collectively address Fulton's first and second assigned errors challenging the sufficiency of the evidence and claiming that his conviction is against the manifest weight of the evidence.

         {¶10} Upon reviewing the denial of a motion for acquittal, we use the same standard of review used for sufficiency of the evidence claims. State v. Wright, 11th Dist. Portage No. 2000-P-0128, 2002-Ohio-1432, *2; State v. Cassel, 2d Dist. Montgomery No. 26708, 2016-Ohio-3479, 66 N.E.3d 318, ¶ 16. In reviewing a challenge to the sufficiency of the evidence, an appellate court views the evidence in a light most favorable to the prosecution. State v. Smith, 80 Ohio St.3d 89, 113, 684 N.E.2d 668 (1997). Sufficiency is "a term of art meaning that legal standard which is applied to determine whether the case may go to the [finder of fact] or whether the evidence is legally sufficient to support the * * * verdict as a matter of law. * * * In essence, sufficiency is a test of adequacy. Whether the evidence is legally sufficient to sustain a verdict is a question of law." State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).

         {¶11} "In viewing a sufficiency of the evidence argument, the evidence and all rational inferences are evaluated in the light most favorable to the prosecution. See State v. Goff, 82 Ohio St.3d 123, 138, 694 N.E.2d 916 (1998). A conviction cannot be reversed on grounds of sufficiency unless the reviewing court determines that no rational juror could have found the elements of the offense proven beyond a reasonable doubt. Id." State v. Carter, 7th Dist. Mahoning No. 15 MA 0225, 2017-Ohio-7501, 96 N.E.3d 1046, ¶95, appeal not allowed, 151 Ohio St.3d 1515, 2018-Ohio-365, 90 N.E.3d 952.

         {¶12} "Although a court of appeals may determine that a judgment of a trial court is sustained by sufficient evidence, that court may nevertheless conclude that the judgment is against the weight of the evidence. * * * Weight of the evidence concerns 'the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief (Emphasis added.) [Black's Law Dictionary (6 Ed.1990)], at 1594.

         {¶13} "When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a '"thirteenth juror' and disagrees with the factfinder's resolution of the conflicting testimony. * * * See, also, State v. Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 219, 485 N.E.2d 717, 720-721 (The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.')." Thompkins, 78 Ohio St.3d 380, at 387.

         {¶14} "The trier of fact is free to believe all, part, or none of the testimony of any witness, and we defer to the trier of fact on evidentiary weight and credibility issues because it is in the best position to gauge the witnesses' demeanor, gestures, and voice inflections, and to use these observations to weigh their credibility. * * *." State v. Miller, 4th Dist. Hocking No. 18CA3, 2019-Ohio-92, ¶ 28.

         {¶15} A finding that a conviction is not against the manifest weight of the evidence necessarily encompasses a sufficiency finding as well. State v. Skeins, 11th Dist. Trumbull No. 2017-T-0018, 2018-Ohio-134, ¶ 10, citing State v. McGowan, 7th Dist. Jefferson No. 14JE37, 2016-Ohio-48, ¶ 4.

         {¶16} Here, Fulton was convicted of domestic violence in violation of R.C. 2919.25(A), which states: "No person shall knowingly cause or attempt to cause physical harm to a family or household member."

         {¶17} "Physical harm" includes "any injury, illness, or other physiological impairment, regardless of its gravity or duration." R.C. 2901.01 (A)(3). And the domestic violence statute includes "[t]he natural parent of any child of whom the offender is the other natural parent" in the definition of a "family or household member." R.C. 2919.25(F)(1)(b).

         {¶18} Fulton argues that the state failed to demonstrate that he caused physical harm to the mother of his two children, Allyson Prunty. He instead claims the evidence shows that the two only had a verbal altercation and she harmed herself. He ...


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