[Cite as State v. Moore,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

FAYETTE COUNTY

STATE OF OHIO, :

Appellee, : CASE NO. CA2020-09-016

: OPINION - vs - 6/1/2021 :

JOHN W. MOORE, :

Appellant. :

CRIMINAL APPEAL FROM WASHINGTON COURT HOUSE MUNICIPAL COURT Case No. CRB1900950

Mark J. Pitstick, Washington Court House City Attorney, 224 N. Fayette Street, #1, Washington Court House, Ohio 43160, for appellee

Steven H. Eckstein, Fayette County Public Defender, 1208 Bramble Ave., Washington Court House, Ohio 43160, for appellant

S. POWELL, P.J.

{¶ 1} Appellant, John W. Moore, appeals his conviction in the Washington Court

House Municipal Court after a jury found him guilty of one count of domestic violence. For

the reasons outlined below, we affirm Moore's conviction.

{¶ 2} On August 28, 2019, Moore was arrested and charged with one count of

domestic violence in violation of 2919.25(A), a first-degree misdemeanor. The charge Fayette CA2020-09-016

arose after it was alleged Moore had struck the victim, H.M., the mother of his then two-

month-old son, causing H.M. to suffer physical harm. Moore pled not guilty and the matter

was tried to a jury on September 11, 2020. During trial, the jury heard testimony from four

witnesses, including both H.M. and Moore.

{¶ 3} H.M. testified that she and Moore, who H.M. identified as the father of her

infant son, got into an argument over ten dollars H.M. had stored in her vehicle's center

console. H.M. testified that this argument ultimately resulted in a physical altercation

between her and Moore. H.M. testified that during this altercation Moore choked her and

elbowed her in the face three or four times. H.M. testified that Moore also punched her in

the face at least four times after she bit him on the arm for a "millisecond" to "get him off of

[her]." H.M. testified that these blows caused her to slip "[i]n and out" of consciousness.

H.M. also testified that these blows caused her to suffer a "severe concussion" and a broken

nose. When asked if she had fully recovered from her injuries, H.M. testified that she had

not, that she was still seeing a doctor at least twice a year to "help fix the bridge of [her]

nose so [her] sinuses aren't collapsed," and that she has a "deviated septum from it all."

{¶ 4} Moore testified in his defense and denied H.M.'s claims. Moore instead

testified that it was H.M. who was upset with him because he "was having fun with [his]

family" and not "engaging any with her or the baby," a child Moore testified he "didn't even

know" was his, while he, H.M., and the baby were at his cousin's house. Moore testified

that this argument continued after they left his cousin's house and eventually morphed into

a dispute over "two tubes" of medical marijuana located in the center console of H.M.'s

vehicle. Moore testified that during this argument H.M. told him to "get this weed out of

[her] car." To this, Moore testified that he reached for the marijuana inside H.M.'s vehicle,

but that H.M. told him "no, you don't get both of them." Moore testified that H.M. then threw

the "two tubes" of marijuana onto the vehicle's floorboard by her feet.

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{¶ 5} After H.M. threw the of marijuana onto the floorboard, Moore testified that he

asked H.M., "what's the procedure with this?" To this, Moore testified that H.M. told him

that he was "not going to get it, you're not going to get them." Moore testified that he then

reached down to pick up the of marijuana, but that H.M. "close[d] [his] arm in." Moore

testified that he then looked up when H.M. scratched him on the head and bit him on the

arm. Once H.M. bit him on the arm, Moore testified that he "hit [H.M.] one time," which,

according to Moore, knocked H.M. off of him. Moore, who described this incident as "[b]ite,

strike, away," then testified that he wished it had never happened, but that he had acted in

self-defense by hitting H.M. in response to her scratching him in the head and biting him on

the arm "so hard."

{¶ 6} After both parties rested, the jury deliberated and returned a verdict finding

Moore guilty as charged. Following the jury's verdict, the trial court proceeded immediately

to sentencing and sentenced Moore to serve a 180-day jail term. The trial court also

ordered Moore to pay court costs. In issuing its sentencing decision, the trial court stated

that "we've all seen different types of [domestic violence]," but that "this is one of the worst."

The trial court also stated, "[H.M.] had a concussion, a broken nose. I wonder what had

happened * * * if the police hadn't arrived so quickly." Moore now appeals his conviction,

raising the following two assignments of error for review.

{¶ 7} Assignment of Error No. 1:

{¶ 8} THE TRIAL COURT ERRED WHEN IT ENTERED A JUDGMENT AGAINST

THE APPELLANT, WHICH WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE.

{¶ 9} Assignment of Error No. 2:

{¶ 10} THE TRIAL COURT ERRED WHEN IT ENTERED A JUDGMENT AGAINST

APPELLANT, WHICH WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶ 11} In his two assignments of error, Moore argues his conviction was not

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supported by sufficient evidence and was against the manifest weight of the evidence. We

disagree.

{¶ 12} Whether the evidence presented is legally sufficient to sustain a verdict is a

question of law. State v. Grinstead,

,

, ¶ 10 (12th

Dist.). "When reviewing the sufficiency of the evidence underlying a criminal conviction, an

appellate court examines the evidence to determine whether such evidence, if believed,

would convince the average mind of the defendant's guilt beyond a reasonable doubt."

State v. Tenbrook, 12th Dist. Butler No. CA2020-01-005,

, citing State

v. Intihar, 12th Dist. Warren No. CA2015-05-046,

. The 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. Jenks,

(1991), paragraph two of the

syllabus. This test "requires a determination as to whether the state has met its burden of

production at trial." State v. Boles, 12th Dist. Brown No. CA2012-06-012,

, citing State v. Wilson, 12th Dist. Warren No. CA2006-01-007,

.

"[A] reversal based on insufficient evidence leads to an acquittal that bars a retrial." State

v. Gideon, Slip Opinion No.

.

{¶ 13} Unlike a challenge to the sufficiency of the evidence, a manifest weight of the

evidence challenge examines the "inclination of the greater amount of credible evidence,

offered at a trial, to support one side of the issue rather than the other." State v. Barnett,

12th Dist. Butler No. CA2011-09-177,

, ¶ 14, citing State v. Wilson, 12th

Dist. Warren No. CA2006-01-007,

. "To determine whether a

conviction is against the manifest weight of the evidence, the reviewing court must look at

the entire record, weigh the evidence and all reasonable inferences, consider the credibility

of the witnesses, and determine whether in resolving the conflicts in the evidence, the trier

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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. Morgan, 12th Dist. Butler

Nos. CA2013-08-146 and CA2013-08-147,

, citing State v. Graham,

12th Dist. Warren No. CA2008-07-095,

, ¶ 66. But, even then, the

determination of witness credibility is primarily for the trier of fact to decide. State v. Baker,

12th Dist. Butler No. CA2019-08-146,

, citing State v. DeHass,

(1967), paragraph one of the syllabus. This court, therefore, "will overturn

a conviction due to the manifest weight of the evidence only in extraordinary circumstances

when the evidence presented at trial weighs heavily in favor of acquittal." State v. Kaufhold,

12th Dist. Butler No. CA2019-09-148,

, citing State v. Blair, 12th Dist.

Butler No. CA2014-01-023,

, ¶ 43.

{¶ 14} As noted above, Moore was convicted of domestic violence in violation of R.C.

2919.25(A). Pursuant to that statute, "[n]o person shall knowingly cause or attempt to cause

physical harm to a family or household member." A person acts knowingly when,

regardless of purpose, "the person is aware that the person's conduct will probably cause

a certain result or will probably be of a certain nature." R.C. 2901.22(B). The term "physical

harm" means "any injury, illness, or other physiological impairment regardless of its gravity

or duration." R.C. 2901.01(A)(3). R.C. 2919.25(F)(1)(b) defines a "family or household

member" to include "[t]he natural parent of any child of whom the offender is the other

natural parent or is the putative other natural parent." Given these elements, domestic

violence in violation of R.C. 2919.25(A) "'is essentially assault with the added element that

the person assaulted is a family or household member.'" (Internal quotation marks deleted.)

State v. Grimm, 12th Dist. Clermont No. CA2018-10-071,

, quoting

State v. Houston, 10th Dist. Franklin No. 16AP-157,

.

{¶ 15} Moore initially argues the jury's decision finding him to be a "family or

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household member" of H.M. was not supported by sufficient evidence and was against the

manifest weight of the evidence since he testified that he was not the father of H.M.'s infant

son. However, it is well established that, if believed, a victim's testimony that the defendant

is the natural parent of the victim's child is sufficient to prove the defendant is the victim's

"family or household member" as defined by R.C. 2919.25(F)(1)(b). See, e.g., State v.

Smith, 12th Dist. Warren No. CA2011-01-002,

, ¶ 13 (victim's testimony

that appellant was the biological father of her two-year-old son, if believed, was sufficient to

prove the victim was appellant's "family or household member" as defined by R.C.

2919.25[F][1][b]); State v. Femuels, 1st Dist. Hamilton No. C-190486,

("[victim's] testimony that [appellant] was the father of her child was sufficient to establish

that [the victim] was a family or household member pursuant to R.C. 2919.25[F][1][b]");

State v. Mills, 2d Dist. Montgomery No. 21146,

("[victim's] testimony

that Defendant is the father of her child, if believed, is sufficient to establish that fact and,

concomitantly, that [the victim] is a family or household member as defined by R.C.

2919.25[F][1][b]").

{¶ 16} Given its verdict, the jury clearly chose to believe H.M.'s testimony that Moore

was the father of her infant son rather than the testimony offered by Moore that he was not

the child's father. This was well within the jury's purview as the trier of fact and ultimate fact

finder. See State v. Thomin, 12th Dist. Butler Nos. CA2019-11-188 and CA2019-12-199,

("[b]y its verdict, the jury clearly choose [sic] to credit some, if not all,

of [the victim's] testimony regarding the assault and her resulting injuries," a decision which

"was well within the jury's purview as the trier of fact and ultimate fact finder"). This is

particularly true here when considering Moore specifically testified and acknowledged that

he was present with H.M. for the child's birth. Therefore, contrary to Moore's claim, the

jury's decision finding he was a "family or household member" of H.M. as defined by R.C.

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2919.25(F)(1)(b) by virtue of Moore being the father of H.M.'s infant son was supported by

sufficient evidence and was not against the manifest weight of the evidence. Moore's claim

otherwise lacks merit.

{¶ 17} Moore also argues his conviction was against the manifest weight of the

evidence because the state failed to prove that he did not act in self-defense given his

testimony that he caused H.M. physical harm only after she scratched him and bit him on

the arm "so hard." However, while it may be true that it was the state that had the burden

to prove Moore had not acted in self-defense, see R.C. 2901.05(B)(1), the jury was

presented with two conflicting versions of events: one from H.M. and one from Moore.

"[W]hen conflicting evidence is presented at trial, a conviction is not against the manifest

weight of the evidence simply because the trier of fact believed the prosecution testimony."

State v. Lunsford, 12th Dist. Brown No. CA2010-10-021,

, ¶ 17. This is

because, "[a]s the trier of fact in this case, the jury was in the best position to judge the

credibility of witnesses and the weight to be given the evidence." State v. Johnson, 12th

Dist. Warren Nos. CA2019-07-076 and CA2019-08-080,

, citing State

v. Jones, 12th Dist. Butler No. CA2015-02-020,

.

{¶ 18} Again, given its verdict, the jury clearly chose to believe H.M.'s testimony that

Moore was the initial aggressor who had caused H.M. physical harm, i.e., that it was Moore

who was at fault in creating the situation that gave rise to the affray between he and the

victim, H.M. Despite Moore's claims, the jury did not have to accept his claim of self-defense

simply because he asserted the defense at trial. See State v. Pittman, 9th Dist. Summit

No. 29705,

("[t]he jury was free to find [appellant's] testimony

regarding self-defense not credible, and instead believe the State's version of the events.

[Appellant's] conviction is not against the manifest weight of the evidence simply because

the jury chose to do so"); State v. Jones, 8th Dist. Cuyahoga No. 108371,

,

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¶ 85 ("[t]he fact that [appellant] testified concerning his affirmative defense of self-defense

does not mean that the jury had to believe him").

{¶ 19} Given the evidence presented at trial that Moore was not acting in self-

defense when he caused physical harm to H.M., Moore's domestic violence conviction was

not against the manifest weight of the evidence. This is because, as noted above, the state

proved beyond a reasonable doubt that Moore was the initial aggressor who knowingly

caused H.M., the mother of his then two-month-old son, physical harm by choking H.M.,

elbowing H.M. in the face three or four times, and punching H.M. in the face at least four

times. See, e.g., State v. Fritts, 12th Dist. Butler No. CA2019-10-173,

(appellant's conviction for domestic violence was not against the manifest weight of

the evidence where "the state proved beyond a reasonable doubt that appellant was the

initial aggressor and that he knowingly caused physical harm to his wife by shoving her to

the ground and choking her"). Therefore, finding no merit to any of the arguments raised

by Moore herein, Moore's two assignments of error lack merit and are overruled.

{¶ 20} Judgment affirmed.

HENDRICKSON and BYRNE, JJ., concur.

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