[Cite as State v. Black,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT VAN WERT COUNTY

STATE OF OHIO, CASE NO. 15-20-07 PLAINTIFF-APPELLEE,

v.

COLBY BLACK, OPINION

DEFENDANT-APPELLANT.

Appeal from Van Wert Municipal Court Trial Court No. CRB 2000124

Judgment Affirmed

Date of Decision: February 1, 2021

APPEARANCES:

Gregory W. Unterbrink for Appellant

John E. Hatcher for Appellee Case No. 15-20-07

WILLAMOWSKI, P.J.

{¶1} Defendant-appellant Colby Black (“Black”) brings this appeal from the

judgment of the Van Wert Municipal Court finding him guilty of one charge of

Domestic Violence and ordering him to pay a fine of $500.00 and sentencing him

to 180 days in jail. On appeal, Black challenges the judgment claiming that 1)

counsel was ineffective for failing to inform him of his right to a jury trial and that

2) the judgment was not supported by sufficient evidence. For the reasons set forth

below, the judgment is affirmed.

{¶2} On the morning of March 16, 2020, Black and his girlfriend, the victim,

were arguing. Doc. 2. While the victim was putting the dog in the laundry room

and closing the gate, Black kicked the gate causing it to strike the victim in the face.

The impact broke the victim’s nose and caused bruising and swelling around her

nose.

A complaint was filed in the trial court alleging that Black had committed

Domestic Violence in violation of R.C. 2919.25(A), a misdemeanor of the first

degree. Doc. 1. The trial court arraigned Black on April 6, 2020. Doc. 4. Black

entered a plea of not guilty and he was released on bond. Doc. 9. A bench trial was

held on June 10, 2020, and the trial court found Black guilty as charged. Doc. 34.

The trial court sentenced Black to 180 days in jail and ordered him to pay a fine of

$500 as well as court costs.

Black appeals from this judgment and on appeal

raises the following assignments of error.

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First Assignment of Error

Whether appellant was denied adequate counsel by failure to inform him of his right [to a] jury trial, and cursory review of discovery? [sic]

Second Assignment of Error

The trial court erred in not determining whether the State had sufficient evidence to convict after testimony of Sheriff’s Deputy and alleged victim appeared to be conflicted and contradictory.

{¶3} In the first assignment of error, Black claims that he was denied the

effective assistance of counsel. However, no argument is presented in the brief to

support this claim. An appellate court “may disregard an assignment of error

presented for review if the party raising it fails to identify in the record the error on

which the assignment of error is based or fails to argue the assignment separately in

the brief, as required under App.R. 16(A).” App.R. 12(A)2). Black failed to argue

this assignment of error in the brief. Thus, this Court will not consider it. This

Court does note, however, that the matter is not resolved as it regards the

effectiveness of trial counsel and trial counsel and appellate counsel are the same.

“[S]ince ‘counsel cannot realistically be expected to argue his own

incompetence, res judicata does not act to bar a defendant represented by the same

counsel at trial and upon direct appeal from raising a claim of ineffective assistance

of counsel in a petition for postconviction relief.’” State v. Lentz,

,

(1994) quoting State v. Cole,

,

(1982). The first assignment of error is dismissed.

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{¶4} In the second assignment of error, Black claims that the evidence was

not sufficient to support the conviction. Although, the second assignment of error

alleges that the conviction was not supported by sufficient evidence, Black appears

to actually be arguing that the convictions are against the manifest weight of the

evidence. In the interest of justice, we will address both the assignment of error and

the arguments presented. “Under the sufficiency of the evidence standard, ‘[t]he

relevant inquiry is whether, after viewing the evidence in a light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of

the crime proven beyond a reasonable doubt.’” State v. Sullivan, 3d Dist. Hancock

No. 5-17-09,

,

quoting State v. Potts, 2016-

Ohio-5555,

, ¶ 12 (3d Dist.).

{¶5} Black was charged with a violation of R.C. 2919.25(A), domestic

violence. The statute provides that no person shall “knowingly cause or attempt to

cause physical harm to a family or household member.” R.C. 2919.25(A). The

statute defines a family or household member in relevant part as follows.

(a) Any of the following who is residing or has resided with the offender:

(i) A spouse, a person living as a spouse, or a former spouse of the offender;

***

(2) “Person living as a spouse” means a person who is living or has lived with the offender in a common law marital relationship, who otherwise is cohabiting with the offender, or who otherwise

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has cohabited with the offender within five years prior to the date of the alleged commission of the act in question.

R.C. 2919.25(F)(1-2). Thus, the State had to prove that Black knowing caused

physical harm and that the victim was a household member.

{¶6} A review of the record shows that there is no question that the victim

suffered physical harm as her nose was broken. The victim testified that Black

kicked her in the face and caused the damage. Thus, viewing the evidence in a light

most favorable to the State, that element has been shown.

{¶7} During the case in chief, no evidence was presented that the victim, who

was not a spouse of Black, and Black were cohabitating. In fact, the State in its

brief states that the “parties do not contend that they were cohabitating together at

the time of the alleged incident.” Appellee’s Brief at 6. However, during the trial,

Black testified that he was “staying” at the residence. Tr. 54. He later testified that

he packed all his stuff and left. Tr. 56. He also testified that the victim did not press

charges “until she knew that I sent a picture of my clothes and everything packed

and said I’m going.” Tr. 57. The trial court took this as an admission that Black

was living with the victim. Tr. 75. Viewing this evidence in a light most favorable

to the State, a reasonable person could determine that Black and the victim were

cohabitating, at least for a short time. As the State presented evidence as to the

elements of the offense, this Court finds that the evidence was sufficient to support

the conviction.

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{¶8} When reviewing a judgment to determine if it is against

the manifest weight of the evidence, an appellate court “review[s] 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.” State v. Mendoza,

,

(3d Dist. 2000). See, also, State v. Thompkins,

,

(1997). A new trial should be granted only in

the exceptional case in which the evidence weighs heavily against

conviction.

. Although the appellate court acts

as a “thirteenth juror,” due deference to the findings made by the fact-finder must

still be given. State v. Moorer, 3d Dist. Seneca No. 13–12–22,

.

{¶9} Black argues that because there was conflicting testimony as to the

severity of the injuries and how exactly they occurred, he should not have been

convicted. However, the mere fact that there is conflicting testimony does not mean

that the evidence weighs heavily against conviction. “The choice between credible

witnesses and their conflicting testimony rests solely with the finder of fact and an

appellate court may not substitute its own judgment for that of the finder of

fact.” State v. Kruse, 3d Dist. Union No. 14-16-15,

, ¶

66 quoting State v. Awan,

,

(1986). As

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discussed above, there was testimony provided that indicated that Black caused the

injuries to the victim. Photographs of the injuries were presented to the trial court.

Thus, the trial court was free to evaluate which testimony to find credible and what

to believe. A review of the record does not show that the trial court, as the finder of

fact in this case, lost its way and that a manifest injustice occurred. The second

assignment of error is overruled.

{¶10} Having found no error prejudicial to the appellee in the particulars

assigned and argued, the judgment of the Van Wert Municipal Court is affirmed.

Judgment Affirmed

ZIMMERMAN and SHAW, J.J., concur.

/hls

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