[Cite as State v. Stiver,
2021-Ohio-3713.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-210228
C-210229
Plaintiff-Appellee, : TRIAL NOS. C-21CRB-3357 A-B
vs. :
O P I N I O N.
:
MATTHEW STIVER,
Defendant-Appellant. :
Criminal Appeals From: Hamilton County Municipal Court
Judgments Appealed From Are: Affirmed
Date of Judgment Entry on Appeal: October 20, 2021
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Keith Sauter, Assistant
Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and David Hoffmann, Assistant
Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Presiding Judge.
{¶1} A spat between defendant-appellant Matthew Stiver and his then-girlfriend,
Amber Ramsey, escalated to the precipice of violence, and resulted in Mr. Stiver’s
convictions for domestic violence and unauthorized use of a vehicle. Mr. Stiver now
appeals, challenging the weight and sufficiency of the evidence supporting these
convictions. We, however, see nothing in the record that would raise serious doubt as to the
weight or sufficiency of the evidence supporting his convictions and, accordingly, affirm the
trial court’s judgment.
I.
{¶2} This case stems from an altercation at a local fast food restaurant between two
significant others who worked there together—Mr. Stiver and Ms. Ramsey. On the date in
question, for unknown reasons, Mr. Stiver and Ms. Ramsey feuded throughout the duration
of their shifts, with the acrimony slowly simmering. Mr. Stiver persistently demanded that
Ms. Ramsey relinquish her cell phone, but she kept it from him by passing it between other
employees and hiding it in various nooks and crannies around the restaurant. Without
access to the phone, Mr. Stiver’s suspicions deepened, and his mood darkened as he grew
more and more agitated.
{¶3} Eventually, Mr. Stiver’s frustrations boiled over, and he lunged at Ms.
Ramsey. Fortunately, another employee intercepted him, restraining Mr. Stiver before he
could assault her. Ms. Ramsey testified that, during this fracas, Mr. Stiver uttered
something along the lines of “if I was not being held back, you would be sorry.” He
attempted to overpower the employee and advance towards Ms. Ramsey, but when those
efforts failed, he stormed out of the building.
{¶4} Earlier during her shift, concerned based on Mr. Stiver’s volatility, Ms.
Ramsey contacted her father and alerted him to the situation. This prompted her father to
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OHIO FIRST DISTRICT COURT OF APPEALS
drive over to the restaurant, arriving just in time to see Mr. Stiver drive away. Undisputed
testimony established that Ms. Ramsey’s father owned the vehicle in which Mr. Stiver drove
away. Ms. Ramsey’s father claims that he gave his daughter permission to drive the vehicle,
but says that he forbid Mr. Stiver from driving the vehicle on multiple occasions.
{¶5} At a bench trial, Mr. Stiver was convicted of domestic violence and
unauthorized use of a vehicle on these facts. On appeal, he challenges the weight and
sufficiency of the evidence.
II.
{¶6} Mr. Stiver’s sole assignment of error challenges the weight and sufficiency of
the evidence supporting his convictions for domestic violence and unauthorized use of a
vehicle.
{¶7} In reviewing whether the conviction runs counter to the manifest weight of
the evidence, we sit as a “thirteenth juror.” State v. Thompkins, 78 Ohio St.3d 380, 387,
678 N.E.2d 541 (1997). We will reverse the trial court’s decision to convict and grant a new
trial only in “ ‘exceptional cases in which the evidence weighs heavily against the
conviction.’ ” State v. Sipple,
2021-Ohio-1319,
170 N.E.3d 1273, ¶ 7 (1st Dist.), quoting State
v. Martin,
20 Ohio App.3d 172, 175,
485 N.E.2d 717 (1st Dist.1983).
{¶8} On the other hand, “[t]o determine whether a conviction is supported by
sufficient evidence, ‘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. Walker, 150 Ohio St.3d
409,
2016-Ohio-8295,
82 N.E.3d 1124, ¶ 12, quoting State v. Jenks,
61 Ohio St.3d 259,
574
N.E.2d 492 (1991), paragraph two of the syllabus.
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OHIO FIRST DISTRICT COURT OF APPEALS
A.
{¶9} The trial court convicted Mr. Stiver under R.C. 2919.25(C), which reads “[n]o
person, by threat of force, shall knowingly cause a family or household member to believe
that the offender will cause imminent physical harm to the family or household member.”
(Emphasis added.)
{¶10} For Mr. Stiver’s manifest weight challenge, he features minor inconsistencies
between the witnesses’ testimony on the time the altercation occurred, the distance between
the couple during the altercation, and the position of other employees at the time. We do
not believe that any of these inconsistencies rise to a level requiring reversal. Although the
position of other employees in the restaurant and distance between the couple might have
some bearing on the trial court’s finding that the “imminent physical harm” requirement
was met, these inconsistencies merely raise peripheral credibility determinations that the
trial court could resolve based on the totality of the evidence. See State v. Ham, 1st Dist.
Hamilton No. C-170043, 2017-Ohio-9189, ¶ 21 (“[I]t is well settled law that matters as to the
credibility of witnesses are for the trier of fact to resolve.”). Mr. Stiver fails to demonstrate
that any inconsistencies between the witnesses’ testimony weigh heavily against a
conviction and we, therefore, overrule the manifest weight challenge to his domestic
violence conviction.
{¶11} Mr. Stiver also attacks the sufficiency of the evidence regarding the imminent
physical harm requirement because his threat was conditional—“if I were not being held
back, you would be sorry.” In light of the conditional nature of the threat, his reasoning
goes, Ms. Ramsey could not have believed that she would imminently suffer physical harm.
{¶12} As a threshold matter, Ms. Ramsey did not testify that Mr. Stiver used the
conditional words “would be sorry” verbatim. Instead, Ms. Ramsey testified on cross-
examination that Mr. Stiver “pretty much” said the “same thing.” But on direct
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OHIO FIRST DISTRICT COURT OF APPEALS
examination, Ms. Ramsey answered affirmatively when asked whether Mr. Stiver said “will
be sorry.” The state maintains that whether Mr. Stiver threatened “would be sorry” or “will
be sorry,” the imminent physical harm requirement would be met based on the factual
backdrop at hand. We agree.
{¶13} It is true that a conditional threat alone may not suffice to meet the imminent
physical harm requirement. See State v. Collie, 108 Ohio App.3d 580, 582-583,
671 N.E.2d
338 (1st Dist.1996) (“Unlike the menacing laws, this provision of the domestic violence
statute contains the element of ‘imminence.’ ‘Imminent’ means ‘threatening to occur
immediately.’ ”), quoting Webster’s Second International Dictionary 1245 (1959). But a
conditional threat that coincides with an overt physical act may satisfy the imminent
physical harm requirement. City of Cincinnati v. Baarlaer,
115 Ohio App.3d 521, 527,
685
N.E.2d 836 (1st Dist.1996). In Baarlaer, the defendant shoved the victim against a door
and said “if [the victim] opened [her] mouth that [the defendant would] kill [her].”
Id. at
525. We held that “the combination of the threat and the violence caused [the victim] to
believe that [defendant] would do what he threatened to do, viz., that [defendant] would
cause her imminent physical harm.”
Id. at 527. We distinguished Baarlaer from Collie, a
case where the defendant remarked “if I had a gun, I would shoot you.”
Id., citing
Collie at
582. Since the defendant did not perform an overt act or have access to a firearm, the Collie
court held that the state failed to establish that the victim believed she would suffer
imminent physical harm.
Collie at 582-583. Unlike in Collie, the Baarlaer court recognized
that pushing the victim against a door combined with defendant’s threat to kill supported
the belief that defendant “could do at that moment what he said he intended to do.”
Baarlaer at 527.
{¶14} This case strikes us as much closer to Baarlaer than Collie. Given that Mr.
Stiver’s threat roughly coincided with his lunge towards Ms. Ramsey and attempts to move
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OHIO FIRST DISTRICT COURT OF APPEALS
towards her as he struggled to escape the clutches of the restraining employee, a rational
trier of fact could conclude that Ms. Ramsey believed that he would imminently carry out
his threat. Testimony showed that Mr. Stiver was using all of his strength to break free from
this restraint, and that Ms. Ramsey appeared afraid during the midst of all of this. We hold
that, under these circumstances and viewing the evidence in the light most favorable to the
state, a rational trier of fact could conclude that Ms. Ramsey believed Mr. Stiver would
imminently carry out his threat, even though this act would be conditional on Mr. Stiver
breaking free from the employee’s grasp. Accordingly, we overrule Mr. Stiver’s challenge to
the sufficiency of the evidence for his domestic violence conviction.
B.
{¶15} Mr. Stiver also claims that the prosecution presented insufficient evidence of
his prior conviction for domestic violence in elevating the seriousness of the offense under
R.C. 2919.25(D). Generally, “a violation of [R.C. 2919.25(C)] is a misdemeanor of the fourth
degree.” R.C. 2919.25(D)(2). However, “if the offender previously has pleaded guilty to or
been convicted of domestic violence … a violation of division (C) of this section is a
misdemeanor of the second degree.” R.C. 2919.25(D)(3). The Supreme Court explains that
“[b]y using the phrase ‘pleaded guilty to’ as an alternative to ‘convicted of’ ” the legislature
“has allowed the state to offer evidence of a defendant’s guilty plea as proof of a prior
offense of domestic violence. And no matter how the state chooses to prove this element, it
must be proven beyond a reasonable doubt before the level of the offense may be increased.”
State v. Gwen, 134 Ohio St.3d 284,
2012-Ohio-5046,
982 N.E.2d 626, ¶ 11, quoting R.C.
2919.25(D)(4) (elevating the severity to first degree for two or more offenses of domestic
violence). However, “[w]hen the state chooses to prove a prior offense not through a guilty
plea, but via a conviction, and the defendant does not stipulate to the fact of the conviction,
the judgment entry of conviction offered must contain the four elements described
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OHIO FIRST DISTRICT COURT OF APPEALS
in Crim.R. 32(C) … (1) the fact of the conviction, (2) the sentence, (3) the judge’s
signature, and (4) the time stamp indicating the entry upon the journal by the clerk.” Id. at
¶ 19-20, citing Crim.R. 32(C).
{¶16} The state does not suggest that the judgment entry complies with Crim.R.
32(C) nor that Mr. Stiver stipulated to the conviction. Instead, it points to the judgment
entry as proving beyond a reasonable doubt that Mr. Stiver “has pleaded guilty to” domestic
violence in a prior case. We agree that the state produced sufficient evidence to prove
beyond a reasonable doubt that Mr. Stiver previously pled guilty to domestic violence. The
entry reflects that Mr. Stiver was charged in 2019 under R.C. 2919.25. It identifies Mr.
Stiver by his full name and date of birth. It also includes Mr. Stiver’s plea of guilty along
with the judge’s signature. Although the entry does not include Mr. Stiver’s sentence, which
is required for proof of a prior conviction, no sentence is required to prove a prior guilty plea
and, therefore, this entry suffices for a rational trier of fact to find that he previously pled
guilty to domestic violence. See id. at ¶ 11. Accordingly, we overrule Mr. Stiver’s challenge
to his domestic violence conviction.
C.
{¶17} Finally, the trial court convicted Mr. Stiver of unauthorized use of a vehicle
under R.C. 2913.03, which provides “[n]o person shall knowingly use or operate an aircraft,
motor vehicle, motorcycle, motorboat, or other motor-propelled vehicle without the consent
of the owner or person authorized to give consent.” Mr. Stiver’s challenge to this conviction
does not dispute the weight of the evidence. Instead, he protests the sufficiency of the
evidence based on the notion that an operator of a motor vehicle has “the consent of the
owner” to operate said motor vehicle whenever the operator merely exceeds the scope of the
owner’s consent.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶18} Mr. Stiver acknowledges, as he must, that the Supreme Court foreclosed this
argument nearly thirty years ago. State v. Rose, 63 Ohio St.3d 585, 589,
589 N.E.2d 1315
(1992) (“Clearly, where an individual uses a motor vehicle beyond the scope of the owner’s
consent, he or she has violated R.C. 2913.03 because no consent has been given for the
particular use.”). Nevertheless, he insists that Rose was wrongly decided, suggesting that
this court ought to ignore binding Supreme Court precedent. We, however, do not have the
luxury of disregarding Supreme Court precedent that squarely decides the matter at hand,
and Mr. Stiver marshals no additional authority (such as an intervening statutory change)
that would point to a different result. His theory also would create numerous problems, as
someone who offered their car to a friend to run down the street to a convenience store
could thus be said to have condoned that friend embarking on a cross-country trek to
California. Accordingly, we overrule Mr. Stiver’s challenge to his conviction for
unauthorized use of a motor vehicle.
…
{¶19} For all of the foregoing reasons, we overrule Mr. Stiver’s sole assignment of
error and affirm the judgments of the trial court.
Judgments affirmed.
CROUSE and WINKLER, J.J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion
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