[Cite as State v. Black,
2021-Ohio-268.]
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.
Id. The impact broke the victim’s nose and caused bruising and swelling around her
nose.
Id. 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.
Id. 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, 70 Ohio St.3d 527,
529-30,
639 N.E.2d 784 (1994) quoting State v. Cole,
2 Ohio St.3d 112, 114,
443
N.E.2d 169, fn. 1 (1982). The first assignment of error is dismissed.
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Case No. 15-20-07
{¶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, 2017-Ohio-8937, ¶ 28,
102 N.E.3d 86 quoting State v. Potts, 2016-
Ohio-5555,
69 N.E.3d 1227, ¶ 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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Case No. 15-20-07
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, 137 Ohio
App.3d 336,
738 N.E.2d 822 (3d Dist. 2000). See, also, State v. Thompkins,
78
Ohio St.3d 380, 387,
678 N.E.2d 541 (1997). A new trial should be granted only in
the exceptional case in which the evidence weighs heavily against
conviction.
Thompkins at 387, 678 N.E.2d 541. 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,
2013-Ohio-650, ¶
29.
{¶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, 2017-Ohio-5667, ¶
66 quoting State v. Awan,
22 Ohio St.3d 120, 123,
489 N.E.2d 277 (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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