[Cite as State v. Peterson,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 29061 : v. : Trial Court Case No. 2020-CRB-2367 : RICHARD PETERSON : (Criminal Appeal from : Municipal Court) Defendant-Appellant : :

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OPINION

Rendered on the 5th day of November, 2021.

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STEPHANIE L. COOK, Atty. Reg. No. 0067101 by AMY B. MUSTO, Atty. Reg. No. 0071514, Assistant Prosecuting Attorney, City of Dayton Prosecutor’s Office, 335 West Third Street, Room 372, Dayton, Ohio 45402 Attorney for Plaintiff-Appellee

GLENDA A. SMITH, Atty. Reg. No. 0070738, P.O. Box 15353, Wyoming, Ohio 45215 Attorney for Defendant-Appellant

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EPLEY, J.

{¶ 1} Defendant-Appellant Richard Peterson was convicted after a bench trial in

the Dayton Municipal Court of one count of menacing and two counts of domestic

violence. On appeal, Peterson claims that the trial court erred in denying his Crim.R. 29

motion regarding the menacing charge, that his convictions were based on insufficient

evidence and against the manifest weight of the evidence, that certain offenses should

have merged as allied offenses of similar import, and that his counsel rendered ineffective

assistance by failing to raise allied offenses at sentencing.

{¶ 2} For the following reasons, the trial court’s judgment will be affirmed in part

and reversed in part, and the matter will be remanded for merger of the menacing and

domestic violence (R.C. 2919.25(C)) charges.

I. Facts and Procedural History

{¶ 3} Peterson was charged with five offenses following an incident with his ex-

fiancée on August 1, 2020: (1) domestic violence, in violation of R.C. 2919.25(A), a

misdemeanor of the first degree, (2) domestic violence, in violation of R.C. 2919.25(C), a

misdemeanor of the fourth degree, (3) assault, in violation of R.C. 2903.13(A), a

misdemeanor of the first degree, (4) aggravated menacing, in violation of R.C.

2903.21(A), a misdemeanor of the first degree, and (5) menacing, a violation of R.C.

2903.22, a misdemeanor of the fourth degree.

{¶ 4} The matter proceeded to a bench trial, during which the State presented the

testimony of the complainant, T.O., and Officer Michael Pena, who responded to the

residence following the incident. Their testimony established the following facts.

{¶ 5} Peterson and T.O. were romantically involved for 15 years and have two -3-

children. The couple resided together throughout their relationship, and in 2020, they

lived at a residence on Kenwood Avenue in Dayton.

{¶ 6} In July 2020, the relationship was ending – the two were sleeping separately

in the house, and as of August 1, T.O. had not spoken to Peterson for approximately two

and a half weeks. Peterson had packed his belongings and was preparing to move from

the home.

{¶ 7} On August 1, 2020, Peterson left the house “pretty early” and returned in the

afternoon. When he came home, he told the couple’s daughter, age 11, that she would

need to stay with her sister (Peterson’s child from another relationship) because he was

having the power turned off at the house. T.O. testified that Peterson previously had

threatened to shut off power to the home and, in response, she had contacted the gas

and power companies a couple weeks before to have the accounts switched to her name.

{¶ 8} Peterson went downstairs to the basement and turned the breaker off. After

he came back upstairs, T.O. went into the basement and turned it back on. Peterson

returned to the basement to turn the breaker off again, telling T.O., “You’re not gonna

have power in this house in my name.” T.O. responded, “It’s not in your name. I had

everything taken care of.” The two went back and forth with the breaker.

{¶ 9} As T.O. and Peterson went back upstairs, Peterson accused her of lying

about the power account. When they reached the dining room, Peterson walked in front

of T.O. and punched her once in the stomach. T.O. held her stomach and doubled over

from the impact. Peterson then lifted a wooden dining room chair and said, “I’ll hit you

again. I’ll hit you again.” T.O. testified that she believed Peterson was going to hit her

with the chair and feared he would cause her serious harm. Peterson, however, put the -4-

chair back down. At that point, T.O. called the police. (T.O. testified that, throughout

the encounter with Peterson, she was on the phone with her then long-time friend, now

boyfriend, and she ended her call with him to contact the police.)

{¶ 10} Peterson and T.O. were in the living room as T.O. spoke with the dispatcher.

A neighbor, who had come over at their 15-year-old child’s request, tried to calm Peterson

down. When the neighbor left, T.O. followed her onto the porch and waited there for the

police.

{¶ 11} Officer Pena responded to the Kenwood residence on a report of a domestic

incident and found T.O. sitting on front porch of the residence; Peterson was inside the

house. The officer described T.O. as “highly upset and a little bit agitated and wanted to

inform me as to what had happened almost immediately as I arrived on scene.” T.O.

reported to Officer Pena that Peterson had struck her in the stomach during an argument

that they had over the power and had threatened her with a chair. Pena did not notice

any injuries and did not recall hearing T.O. complain of pain. T.O. did not seek medical

attention as a result of being punched, but she testified the punch was painful.

{¶ 12} Officer Pena then spoke with Peterson, who also was upset. The officer

testified that Peterson “was explaining to me the situation why he was upset. And it was

all about the power situation.”

{¶ 13} The police placed Peterson under arrest for domestic violence. T.O.

testified that when Peterson was being placed in a cruiser, he threatened her in front of

the police officers, saying “That’s okay. Because when I get out, she’s gonna die.” T.O.

acknowledged that no one else, including the police officers, heard that statement.

Officer Pena testified that Peterson was very upset to be arrested in front of his neighbors, -5-

and he (the officer) would have noted in his report if he had heard Peterson threaten to

kill T.O.

{¶ 14} After the trial court denied Peterson’s Crim.R. 29(A) motion for an acquittal,

Peterson testified on his own behalf. He denied punching T.O., “putting [his] hands on

her,” threatening her, or threatening to hit her with a chair. On cross-examination,

Peterson admitted that he had grabbed a chair, but stated that it never left the ground.

Peterson indicated that he heard T.O.’s conversation with the police dispatcher and that

the dispatcher should have heard him screaming that she was lying.

{¶ 15} The trial court found Peterson guilty of assault, menacing, and both counts

of domestic violence, but not guilty of aggravated menacing. At sentencing, the trial

court merged the assault with a domestic violence offense and sentenced Peterson to an

aggregate term of 180 days in jail, with 174 days suspended and credit for six days

served, a $100 fine, and seven months of basic supervision with completion of the Stop

the Violence program. The trial court stayed the sentence pending appeal.

{¶ 16} Peterson appeals from his convictions, raising three assignments of error.

II. Sufficiency and Manifest Weight of the Evidence

{¶ 17} In his first assignment of error, Peterson claims that the trial court erred in

overruling his Crim.R. 29 motion on the menacing charge and in convicting him of all

charges. Peterson appears to challenge his convictions as based on insufficient

evidence and as against the manifest weight of the evidence.

{¶ 18} Crim.R. 29(A) requires the trial court “on motion of a defendant or on its own

motion, after the evidence on either side is closed, [to] order the entry of a judgment of

acquittal of one or more offenses charged in the indictment, information, or complaint, if -6-

the evidence is insufficient to sustain a conviction of such offense or offenses.” When

reviewing the denial of a Crim.R. 29(A) motion, an appellate court applies the same

standard as is used to review a sufficiency of the evidence claim. E.g., State v. Powell,

2d Dist. Montgomery No. 27951,

. In conducting our review, we

may consider only the evidence available to the trial court when the motion was made.

citing State v. Sheppeard, 2d Dist. Clark No. 2012 CA 27,

.

{¶ 19} “A sufficiency of the evidence argument disputes whether the State has

presented adequate evidence on each element of the offense to allow the case to go to

the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery

No. 22581,

, citing State v. Thompkins,

,

(1997). The relevant inquiry is whether any rational finder of fact, viewing

the evidence in a light most favorable to the State, could have found the essential

elements of the crime proven beyond a reasonable doubt. State v. Dennis,

,

(1997). A guilty verdict will not be disturbed on appeal

unless “reasonable minds could not reach the conclusion reached by the trier-of-fact.”

{¶ 20} In contrast, “[a] weight of the evidence argument challenges the believability

of the evidence and asks which of the competing inferences suggested by the evidence

is more believable or persuasive.” (Citation omitted.) Wilson at ¶ 12; see Eastley v.

Volkman,

,

,

, ¶ 19. When reviewing

an argument challenging the weight of the evidence, an appellate court may not substitute

its view for that of the trier of fact. Rather, we 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 factfinder clearly lost its way -7-

and created such a manifest miscarriage of justice that the conviction must be reversed

and a new trial ordered.

, quoting State v. Martin,

,

(1st Dist. 1983).

{¶ 21} Because the trier of fact sees and hears the witnesses at trial, we must defer

to the factfinder’s decisions whether, and to what extent, to credit the testimony of

particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288,

,

*4 (Aug. 22, 1997). The fact that the evidence is subject to different interpretations does

not render the conviction against the manifest weight of the evidence. Wilson at ¶ 14. A

judgment of conviction should be reversed as being against the manifest weight of the

evidence only in exceptional circumstances.

.

{¶ 22} “The legal concepts of sufficiency of the evidence and weight of the

evidence are both quantitatively and qualitatively different.”

.

However, where an appellate court determines that a conviction is not against the

manifest weight of the evidence, the conviction is necessarily based on legally sufficient

evidence. State v. McLoughlin, 2d Dist. Champaign No. 2017-CA-22,

; State v. Million, 2d Dist. Montgomery No. 24744,

.

{¶ 23} Peterson was found guilty of four charges: two counts of domestic violence,

menacing, and assault. The domestic violence statute provides, in relevant part:

(A) No person shall knowingly cause or attempt to cause physical harm to

a family or household member.

***

(C) No person, by threat of force, shall knowingly cause a family or

household member to believe that the offender will cause imminent physical -8-

harm to the family or household member.

R.C. 2919.25. The relevant assault statute, R.C. 2903.13(A), states: “No person shall

knowingly cause or attempt to cause physical harm to another or to another’s unborn.”

Finally, the menacing statute provides, in relevant part: “(A) No person shall knowingly

cause another to believe that the offender will cause physical harm to the person * * *.”

R.C. 2903.22(A).

{¶ 24} “Physical harm to persons” is defined as “any injury, illness, or other

physiological impairment, regardless of its gravity or duration.” R.C. 2901.01(A)(3). We

have noted that there is “no requirement that pain must be demonstrated by an outward

physical manifestation in order to constitute physical harm.” State v. Karns, 2d Dist.

Greene No. 2020-CA-35,

, quoting State v. Holloman, 10th Dist.

Franklin No. 06AP-01,

, ¶ 22 and State v. Lohr, 9th Dist. Lorain No.

03CA008265,

. Rather, “pain of sufficient intensity” can constitute

“physical harm” for purposes of R.C. 2901.01(A)(3). State v. Taylor, 2d Dist. Montgomery

No. 27731,

, citing State v. Hill, 2d Dist. Montgomery No. 20678,

(painful “punch to the gut” was sufficient to satisfy the “physical

harm” element of assault).

{¶ 25} A person acts “knowingly” when he or she is aware that his or her conduct

will probably cause a certain result or will probably be of a certain nature. R.C.

2901.22(B); State v. Hemming, 2d Dist. Montgomery No. 28738,

.

{¶ 26} Construing the State’s evidence in the light most favorable to it, the trial

court did not err in denying Peterson’s Crim.R. 29(A) motion on the menacing charge.

T.O. testified that, immediately after punching her in the stomach, Peterson picked up a -9-

dining room chair and threatened to hit her with it. T.O. expressly stated that she

believed that Peterson would hit her with the chair and that she was fearful that he would

cause her physical harm. T.O.’s testimony, if believed, was sufficient to prove that

Peterson knowingly caused T.O. to believe that he would cause her physical harm.

{¶ 27} Peterson’s conviction for menacing also was not against the manifest

weight of the evidence. Although Peterson denied raising a dining room chair,

threatening T.O., or threatening to hit her, it was the province of the trial court, as the trier

of fact, to evaluate Peterson’s and the other witnesses’ credibility. In reaching its verdict,

the court was free to believe all, part, or none of Peterson’s testimony. On the record

before us, we cannot conclude that the trial court lost its way when it credited T.O.’s

version of events and found Peterson guilty of menacing.

{¶ 28} The trial court’s verdicts on the domestic violence and assault charges

similarly were based on sufficient evidence and were not against the manifest weight of

the evidence. T.O. testified that Peterson punched her in the stomach, causing her to

grab her stomach and double over. Although T.O. did not seek medical attention due to

the punch, she testified that the punch was painful. T.O.’s testimony supported a

conclusion that Peterson caused her physical harm, within the meaning of R.C.

2901.01(A)(3). Although Peterson denied any physical contact with T.O., the trial court

was free to credit T.O.’s testimony and reasonably found him guilty of assault.

{¶ 29} Both T.O.’s and Peterson’s testimony established that the two had been a

couple for 15 years, had two children together, and shared a household throughout their

relationship. T.O., therefore, was a “family or household member” for purposes of the

domestic violence statute. See R.C. 2919.25(F)(1)(a) (defining “family or household -10-

member” as “a person living as a spouse”); R.C. 2919.25(F)(b) (defining “family or

household member” as the natural parent of the offender’s child). With this additional

element, the trial court did not lose its way in finding Peterson guilty of domestic violence,

in violation of R.C. 2919.25(A).

{¶ 30} In addition, as with the menacing charge, the trial court reasonably found

Peterson guilty of domestic violence, in violation of R.C. 2919.25(C). Again, T.O.

testified that, immediately after punching her, Peterson threatened to hit her with a

wooden dining room chair. T.O. testified that she believed that Peterson would hit her

with the chair and would cause her physical harm. This evidence, if believed, was

sufficient to show that, by threat of force, Peterson knowingly caused T.O. to believe that

he would cause imminent physical harm to her, a “family or household member.” The

trial court was free to credit T.O.’s testimony over Peterson’s and to find him guilty.

{¶ 31} Peterson’s first assignment of error is overruled.

III. Allied Offenses of Similar Import

{¶ 32} In his second assignment of error, Peterson claims that the trial court erred

in failing to merge allied offenses of similar import. Specifically, Peterson asserts that

the trial court should have merged (1) assault with domestic violence (R.C. 2919.25(A)),

and (2) menacing with domestic violence (R.C. 2919.25(C)).

{¶ 33} The record reflects that the assault charge was, in fact, merged with

domestic violence. At sentencing, the trial court asked the prosecutor if she was “going

to make an election,” to which the prosecutor responded, “Uh, Your Honor, the D.V.” The

court then proceeded to sentence Peterson on the two domestic violence charges and

the menacing charge only. In its written judgment entry, the court noted for the assault -11-

charge that the State had elected to proceed on the domestic violence charge.

Peterson’s claim that the trial court should have merged assault with domestic violence

lacks merit.

{¶ 34} With respect to the menacing charge, the State “agrees and concedes” that

the menacing charge and domestic violence charge (R.C. 2919.25(C)) are allied offenses

and should have been merged for sentencing “with the [State] electing the Domestic

Violence 2919.25C charge.” We likewise agree. Peterson’s claim that the trial court

should have merged menacing and domestic violence, in violation of R.C. 2919.25(C), is

sustained.

IV. Ineffective Assistance of Counsel

{¶ 35} In his third assignment of error, Peterson claims that her counsel rendered

ineffective assistance by failing to raise allied offenses of similar import in the trial court.

Because the trial court merged the assault charge with the domestic violence under R.C.

2919.25(A) and the State has conceded that the menacing charge should be merged with

the domestic violence under R.C. 2919.25(C), we conclude that any alleged deficiency in

counsel’s failure to address allied offenses at sentencing is now moot.

V. Conclusion

{¶ 36} The trial court’s judgment will be affirmed in part and reversed in part, and

the matter will be remanded for merger of the menacing and domestic violence (R.C.

2919.25(C)) charges.

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TUCKER, P. J. and WELBAUM, J., concur. -12-

Copies sent to:

Stephanie L. Cook Amy B. Musto Andrew D. Sexton Glenda A. Smith Hon. Mia Wortham Spells