State v. Armstrong, Unpublished Decision (6-16-2006)
State v. Armstrong, Unpublished Decision (6-16-2006)
Opinion of the Court
{¶ 2} On appeal, Armstrong contends in his two assignments of error that the verdict was not supported by sufficient evidence and was against the manifest weight of the evidence.
{¶ 4} Parts of Moyer's story were corroborated. Allen Enochs, the couple's next-door neighbor, said that after the dinner hour on March 23, he heard thumps and screams in the couple's apartment. Cathy Bond, the waitress at Trish's, testified that in the early afternoon of March 24, she observed Moyer looking sick and unable to eat the food or drink the beer she had ordered, and that an ambulance was called to take Moyer to the hospital. Juda Moyer, Moyer's mother, testified that she was summoned to the couple's residence March 29, that Moyer couldn't move her right arm, that she wanted a police report documenting her daughter's injuries for disability purposes, that she wrote the police report which Moyer dictated because Moyer couldn't write herself, and that she observed the bruising on her daughter's left side. Kevin Kern of the Union Police Department also testified that Moyer was favoring her right arm, that her mother wrote the police report for her, and that he observed bruises on Moyer's left hip.
{¶ 5} Armstrong testified on his own behalf. He testified that Moyer's kicking his shin and the alleged assault on Moyer (which he denied) were part of the same incident, rather than two discrete incidents separated by two days, as Moyer had testified. Essentially, he testified that the couple was engaged in some playful roughhousing when Moyer kicked him in the shin and that his startled reaction was to push her, causing her to fall, which may have caused the bruising. He helped Moyer get back up "right away."
{¶ 7} In contrast, when a conviction is challenged on appeal as being against the manifest weight of the evidence, we 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." Thompkins,
{¶ 9} In arguing that the State's evidence of his causing or attempting to cause physical harm to Moyer was insufficient, Armstrong points to the fact that Moyer waited six days to report the alleged assault to the police, and that she could have sustained her injuries during her six-day stay in the hospital. Again, the flaw in this argument is that it ignores Moyer's testimony.
{¶ 10} The first assignment is overruled.
{¶ 11} In arguing that the guilty verdict was against the manifest weight of the evidence, Armstrong points to his own testimony that there was a single incident of playful roughhousing in the midst of which Moyer kicked him and, in response to which, he merely pushed Moyer away. Armstrong concedes, however, that Moyer testified that her kicking Armstrong and his assaulting her were two distinct incidents two days apart. Determining which version to credit was the province of the trial court and its crediting of Moyer's partly corroborated version was not against the manifest weight of the evidence.
{¶ 12} Armstrong next argues that the judgment was against the weight of the evidence because the State introduced no medical reports or pictures of Moyer's injuries, the neighbor with whom Moyer said she took refuge was not revealed, Moyer was drinking and taking prescription drugs after her return from the hospital March 29, the "only report" showing injury was Officer Kern's "domestic violence chart" prepared March 29, and Armstrong and Moyer gave conflicting accounts of what happened.
{¶ 13} While the State's case might have been stronger had there been none of these alleged evidentiary deficiencies, we are not persuaded that the verdict is against the manifest weight of the evidence because of them. Moyer told a coherent story that was corroborated in significant parts by her mother and by three impartial witnesses: Allen Enochs, Cathy Bond, and Officer Kern. We find no fault in the trial court's crediting Moyer's testimony and the second assignment is overruled.
{¶ 14} The judgment will be affirmed.
GRADY, P.J. and WALTERS, J., concur.
(Hon. Sumner E. Walters retired from the Third District Court of Appeals sitting by assignment of the Chief Justice of the Supreme Court of Ohio).
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