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State v. Some

Court of Appeals of Ohio, Second District, Montgomery

August 23, 2019

STATE OF OHIO Plaintiff-Appellee
v.
BAPONKOUN SOME Defendant-Appellant

          Criminal Appeal from Municipal Court Trial Court Case No. 2017-CRB-8302

          TROY B. DANIELS, Atty. Reg. No. 0084957, Assistant City of Dayton Prosecuting Attorney, Attorney for Plaintiff-Appellee

          CHRISTOPHER C. GREEN, Atty. Reg. No. 0077072, Attorney for Defendant-Appellant

          OPINION

          TUCKER, J.

         {¶ 1} Defendant-appellant Baponkoun Some appeals from his conviction for domestic violence. Some contends that the conviction was against the manifest weight of the evidence.

         {¶ 2} We conclude that there was competent, credible evidence upon which the trial court could have relied in finding that Some committed the offense of domestic violence. We further conclude that the trial court, as the trier of fact, did not clearly lose its way in convicting Some. Accordingly, the judgment of the trial court is affirmed.

         I. Facts and Procedural History

         {¶ 3} Some was charged with domestic violence and assault following an altercation with his wife, Benewende Zombre. The matter proceeded to a bench trial during which Zombre testified[1] that she and Some were married in Africa in 2012, and had two children at the time of the trial. She testified that on December 26, 2017, at her home, she entered the bathroom and discovered her husband masturbating while on a video cellular telephone call with another woman. The next day, the family went out to eat and returned home around 3:00 p.m. At that time, Zombre had not spoken to her husband since the incident the previous day. Some asked Zombre to go into the bedroom in order to speak. While in the bedroom, Zombre told Some that she felt he did not love or respect her and that he was committing infidelity. She stated that she wanted to leave him. According to Zombre, Some responded by stating that he had spent a large sum of money to bring her to the United States from Africa and that she could not leave him. He also told her that she belonged to him and that if she tried to leave him "what [she] will see will be [her] corpse." Tr. p. 10.

         {¶ 4} Zombre testified that she attempted to leave the bedroom, but Some began to slap and hit her. Some also used his head to strike Zombre on the forehead. Zombre testified that she was knocked to the floor. She testified that she stayed on the floor the remainder of the night and that Some continued to hit her.

         {¶ 5} Zombre testified that, on the following day, Some ordered a pizza. When the delivery driver arrived, Zombre rushed to the door and indicated to the delivery driver that she was "in distress." Tr. p. 14. She testified that when Some put the pizza down, she was able to run out of the home. The driver let Zombre into the delivery car and took her to the pizza restaurant.

         {¶ 6} Dayton Police Officer David Lane testified that on December 28, 2017, he was dispatched to Happy's Pizza on Salem Avenue for a domestic violence call. Upon arriving at the restaurant, Lane met with Zombre. Lane used "Google Translate" on his cellular telephone in order to communicate with Zombre. Lane was able to ascertain that Zombre was married and that she had been involved in an argument with her husband regarding Some's phone call with another woman. Lane noticed, and photographed, a knot on the left side of Zombre's forehead.

         {¶ 7} Some also testified at trial. He testified that on December 27, Zombre had his cellular telephone when a woman called him. He claimed that the call made Zombre extremely angry. Some testified that Zombre stated that she wanted to end the marriage and that she threatened to call the police to report an argument in order to get Some in trouble. He testified that when the pizza arrived on December 28, Zombre tried to push him. He testified that he resisted and held the door because there was "snow at the door [and he] didn't want to fall in the snow." Tr. p. 54. Some testified that, when he signed for the pizza, he went into the house and Zombre walked out. During cross-examination, Some testified that no violent acts occurred and that no one had been injured on the dates in question.

         {¶ 8} The trial court found Some guilty as charged. During sentencing, the court merged the assault and domestic violence charges, and the State elected to proceed on the domestic violence conviction for purposes of sentencing. The trial court sentenced Some to 180 days in jail. The court credited Some for six days previously served and suspended the balance of the jail term. The court placed Some on supervised probation for a term of one year with the requirements that Some undergo a drug and alcohol assessment with attendant treatment and complete the Stop the Violence program. The court assessed a fine of $50 and ordered Some to pay court costs.

         {ΒΆ ...


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