Court of Appeals of Ohio, Eleventh District, Portage
Criminal Appeal from the Portage County Case No. 2018 CR
00343. Court of Common Pleas
V. Vigluicci, Portage County Prosecutor, and Theresa M.
Scahill, Assistant Prosecutor, (For Plaintiff-Appellee).
Shubhra N. Agarwal, (For Defendant-Appellant).
R. WRIGHT, P.J.
Appellant, Zachary Fulton, appeals his domestic violence
conviction following a jury trial. We affirm in part, reverse
in part, and remand for resentencing.
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.
He raises five assigned errors:
"[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
"[2.] Mr. Fulton's conviction for domestic violence
was against the manifest weight of the evidence.
"[3.] The trial court committed reversible and plain
error when it sentenced Mr. Fulton without properly giving
him the notifications concerning post-release control.
"[4.] The trial court committed reversible and plain
error by ordering the defendant to pay an 'assessment and
"[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."
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.
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
"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.
"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.
"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.
"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.
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.
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."
"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).
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