[Cite as State v. Breneman,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF WAYNE )

STATE OF OHIO C.A. No. 11CA0039

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE ANN M. BRENEMAN WAYNE COUNTY MUNICIPAL COURT COUNTY OF WAYNE, OHIO Appellant CASE No. CRB-11-04-00483

DECISION AND JOURNAL ENTRY

Dated: August 13, 2012

MOORE, Presiding Judge.

{¶1} Defendant, Ann Breneman, appeals from the judgment of the Wayne County

Municipal Court. We affirm.

I.

{¶2} On March 9, 2011, Bryyton Love contacted police officers alleging that

Breneman had assaulted his girlfriend, Angela Nicholas. Breneman was charged with assault in

violation of R.C. 2903.13. Breneman was also charged with petty theft in violation of R.C.

2913.02(A)(2) for allegedly stealing a can of beer from a store on the same date. Breneman pled

guilty to the petty theft charge, and, after a bench trial, the court found her guilty of the assault

charge. The trial court sentenced her to thirty days of incarceration on each charge, to be served

consecutively. Breneman appealed from the sentencing entry and raises one assignment of error

for our review. 2

II.

ASSIGNMENT OF ERROR

[]BRENEMAN’S CONVICTION OF ASS[AU]LT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶3} In her sole assignment of error, Breneman argues that her conviction for assault is

against the manifest weight of the evidence. We disagree.

{¶4} When a defendant asserts that her conviction is against the manifest weight of the

evidence,

an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses 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. Otten,

(9th Dist. 1986). Here, Breneman was convicted of

assault in violation of R.C. 2903.13(A), which provides, “No person shall knowingly cause or

attempt to cause physical harm to another * * *.”

{¶5} At trial, Love, Nicholas and Sargent Howard Funk testified for the State. Love

testified that on March 9, 2011, he and Nicholas were at home. Just after midnight, while

Nicholas was sleeping on the couch, Breneman, her brother, and her boyfriend, Kyle Bolen,

arrived at the apartment intoxicated and carrying beer bottles. Love was aware that a friend of

his owed money to Bolen for drugs, which Love had agreed to pay. When they entered the

apartment, Bolen said that he was going to take their television. Love thought they were joking,

and he began to look for $40 to pay his friend’s debt. While he was looking for the correct

change, Breneman approached Nicholas, and told her several times not to look at her brother and

then hit her in the head with a beer bottle. Breneman dropped the bottle and then began striking

Nicholas with her hands. Love asked Bolen to intervene, and he said that he could not. Love 3

then approached Breneman, and was threatened to back away by her brother. When the tussle

ended, and the women were “locked up,” Love and Bolen left to go to a store to get correct

change to pay the debt, and Breneman and her brother stayed in the apartment. After leaving the

apartment, Love called the police and reported the assault. He then called the individuals at the

apartment to tell them that the police were coming. When Love and Bolen returned to the

apartment, Breneman and her brother had already left.

{¶6} Nicholas testified that, on the night at issue, she was asleep on her couch and was

awakened by knocking at the door. She saw Breneman, Bolen, and another male enter the

apartment. Nicholas heard Breneman screaming about money and threatening to take Nicholas’

television. While she was lying on the couch, Nicholas heard Breneman tell her not to look at

her brother. Nicholas tried to go back to sleep, but Breneman suddenly attacked her, causing a

sharp pain in her head. After a brief struggle, they reached a stalemate. Love and Bolen then left

the apartment to go to a store to get money. As a result of the attack, Nicholas suffered an injury

to her head which required medical attention.

{¶7} Sergeant Howard Funk of the Orrville Police Department testified that he was

dispatched to Nicholas’ apartment in response to a report made by Love. When he arrived,

Nicholas emerged from the apartment, appearing disheveled and overwrought. She told the

officer that individuals who were in her apartment had fled out the back door. Unable to locate

the suspects, the officer returned to speak with Nicholas. While outside, she pointed out a car

that was pulling into the parking lot that she claimed belonged to one of the individuals who was

in her apartment. Another officer blocked the car, and Sergeant Funk went inside the apartment

with Nicholas. There were beer bottles on the floor of the living room, although neither Nicholas 4

nor Love appeared intoxicated. Nicholas parted her hair, and the sergeant observed that Nicholas

was bleeding from her head.

{¶8} Bolen testified for the defense. On the night at issue, Love called Bolen and

asked Bolen to take him to the gas station. Bolen arrived alone at Nicholas’ apartment to pick up

Love, who was waiting for him outside. They went to the gas station, and Love was unusually

quiet. Bolen observed Love speaking on his cell phone while he was at the cashier’s counter in

the gas station. When Bolen returned Love to his apartment, Love quickly exited the car and ran

toward the apartment building. Bolen was then stopped by an officer. Bolen maintained that he

went alone to Nicholas’ apartment that night, that he never entered the apartment, and that no

one owed him any money.

{¶9} On appeal, Breneman argues that the testimony of Love and Nicholas was not

credible. In support, she argues that their testimony as to the events of March 9, 2011 was

unbelievable, biased and in contradiction to the testimony of Bolen. However, this Court is

mindful that “[e]valuating the evidence and assessing credibility are primarily for the trier of

fact.” State v. Shue,

(9th Dist. 1994), citing Ostendorf-Morris Co. v.

Slyman,

(8th Dist. 1982) and Crull v. Maple Park Body Shop,

(12th Dist. 1987). This is because the trier of fact “is best able to view

witnesses and observe their demeanor, gestures and voice inflections, and use these observations

in weighing the credibility of the proffered testimony.” State v. Cook, 9th Dist. No. 21185,

, ¶ 30 quoting Giurbino v. Giurbino,

(8th Dist. 1993).

Further, although the testimony of the witnesses on behalf of the State and the defense present

conflicting versions of events, “[a] conviction is not against the manifest weight because the jury 5

chose to credit the State’s version of events.” State v. Peasley, 9th Dist. No. 25062, 2010-Ohio-

4333, ¶ 18.

{¶10} After reviewing the entire record, weighing the inferences and examining the

credibility of witnesses, we cannot say that the trial court clearly lost its way and created a

manifest miscarriage of justice in finding Breneman guilty of assault.

III.

{¶11} Accordingly, Breneman’s sole assignment of error is overruled, and the judgment

of the Wayne County Municipal Court is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Wayne County

Municipal Court, County of Wayne, State of Ohio, to carry this judgment into execution. A

certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

CARLA MOORE FOR THE COURT 6

DICKINSON, J. BAIRD, J. CONCUR.

(Baird, J., retired, of the Ninth District Court of Appeals, sitting by assignment pursuant to §6(C), Article IV, Constitution.)

APPEARANCES:

MICHAEL J. ASH, Attorney at Law, for Appellant.

DANIEL R. LUTZ, Prosecuting Attorney, for Appellee.