[Cite as State v. Monfort,
2023-Ohio-1024.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 30343
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
STEPHEN MONFORT STOW MUNICIPAL COURT
COUNTY OF SUMMIT, OHIO
Appellant CASE No. 2022 CRB 01068
DECISION AND JOURNAL ENTRY
Dated: March 29, 2023
STEVENSON, Judge.
{¶1} Defendant-Appellant Stephen Monfort (“Mr. Monfort”) appeals from the judgment
of the Stow Municipal Court finding him guilty of domestic violence in violation of R.C.
2919.25(C). This Court affirms the trial court’s judgment.
I.
{¶2} Father was in his bedroom on the evening of April 14, 2022 when his adult son,
Mr. Monfort, knocked on the door. An argument arose over marijuana. According to Father, Mr.
Monfort’s rage was showing through again and Mr. Monfort became aggressive, combative, and
loud. Mr. Monfort punched the wall near his mother’s head.
{¶3} Father testified that he called the police because he was afraid, fearful, and
concerned that his son would cause physical harm. He felt afraid because Mr. Monfort’s rage was
increasing in frequency and severity. Father testified at trial that his son could cause physical harm
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as his son is a lot younger and does not have the ailments he suffers with. He also expressed
concerns about his son’s mental health.
{¶4} Sergeant James Curtin and Officer Paul Ondecker were the responding officers.
Sergeant Curtin, who prepared the complaint, testified that Father appeared very fearful of Mr.
Monfort and he believed that Father was in fear of his life. Officer Ondecker testified that, before
any discussion of a pink slip, Father appeared fearful of Mr. Monfort.
{¶5} A pink slip orders someone to be committed involuntarily for a mental health
evaluation. Father expressed a desire to the officers that Mr. Monfort be pink slipped, but the
officers did not feel that Mr. Monfort met pink slip criteria.
{¶6} Mr. Monfort was charged with domestic violence in violation of R.C. 2919.25(C),
a misdemeanor of the fourth degree. Mr. Monfort was arraigned and a bench trial was held. Mr.
Monfort never filed a jury demand. A public defender represented Mr. Monfort at trial. Mr.
Monfort was found guilty and sentenced according to law. Mr. Monfort’s jail sentence was
suspended on the condition he obey all laws and there are no further disturbances for two years.
{¶7} Mr. Monfort appeals from that judgment of conviction, citing three assignments of
error for review.
II.
ASSIGNMENT OF ERROR I
THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO
PROVE EACH AND EVERY ELEMENT OF THE OFFENSE BEYOND A
REASONABLE DOUBT.
{¶8} Mr. Monfort argues in his first assignment of error that his domestic violence
conviction was not supported by sufficient evidence and must be vacated. We disagree.
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{¶9} Whether a conviction is supported by sufficient evidence is a question of law. State
v. Thompkins, 78 Ohio St.3d 380, 386 (1997). Questions of law are subject to a de novo review
on appeal. Ohio Bell Tel. Co. v. Pub. Util. Comm.,
64 Ohio St.3d 145, 147 (1992). In conducting
a de novo review, this Court “is to examine the evidence admitted at trial to determine whether
such evidence, if believed, would convince the average mind of the defendant's guilt beyond a
reasonable doubt.” State v. Jenks,
61 Ohio St.3d 259 (1991), paragraph two of the syllabus. “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.”
Id. “If the evidence is found to be insufficient to prove every element beyond
a reasonable doubt, the Double Jeopardy Clauses of the United States and Ohio Constitutions bar
retrial.” State v. Troisi,
124 Ohio St.3d 404,
2010-Ohio-275, ¶ 7, citing State v. Brewer,
121 Ohio
St.3d 202,
2009-Ohio-593, ¶ 15.
{¶10} Domestic violence is “to cause or attempt to cause physical harm to a family or
household member.” R.C. 2919.25(A). Mr. Monfort was found guilty of domestic violence in
violation of R.C. 2919.25(C). It is a crime under R.C. 2919.25(C) to, “by threat of force, …
knowingly cause a family or household member to believe that the offender will cause imminent
physical harm to the family or household member.”
{¶11} The Revised Code does not define “threat” or “threat of force” as used in R.C.
2929.25(C). The Ohio Supreme Court established the following definition of threat:
The term ‘threat’ represents a range of statements or conduct intended to impart a
feeling of apprehension in the victim, whether of bodily harm, property destruction,
or lawful harm, such as exposing the victim’s own misconduct.
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State v. Cress, 112 Ohio St.3d 72,
2006-Ohio-6501, at ¶ 39. This definition of “threat” was
recognized by this Court in State v. Simcox, 9th Dist. Wayne No. 06CA0031,
2007-Ohio-1217, ¶
7.
{¶12} Mr. Monfort first argues that the state failed to prove his identity at trial. We
disagree. “Every criminal prosecution requires proof that the person accused of the crime is the
person who committed the crime.” State v. Tate, 140 Ohio St.3d 442,
2014-Ohio-3667, ¶ 15.
Father testified that he lives with his wife and Mr. Monfort. When asked who Mr. Monfort is,
Father responded that Mr. Monfort is his son and he identified his son as the defendant. The trial
court reflected that identification on the record.
{¶13} Mr. Monfort next argues that the state failed to prove that he engaged in conduct
that constitutes a threat of force and that made Father believe that he would cause imminent
physical harm. We disagree.
{¶14} Father testified that he called the police because Mr. Monfort’s rage was showing
through; Mr. Monfort was aggressive; Mr. Monfort punched the wall close to his mother; and
Father was afraid that Mr. Monfort was going to hurt him. Other courts have addressed the issue
of whether similar conduct constitutes a threat of force. In a case where the defendant’s demeanor
included yelling and banging on windows, the court held that such conduct was sufficient to cause
the victim to believe the defendant was going to cause the victim imminent physical harm. State
v. Cooper, 11th Dist. Ashtabula No. 2019-A-0090, 2020-Ohio-3559, ¶ 25-26. The domestic
violence statute is not limited to specific verbal threats; it includes action that amounts to a threat
of force.
Id. Punching a wall in rage is an implied threat of force and was sufficient to cause
Father to believe that Mr. Monfort was going to cause imminent physical harm.
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{¶15} Father also testified that Mr. Monfort became “aggressive” by leaning forward and
taking an aggressive posture which is another potential threat of force as it imparted “a feeling of
apprehension in the victim.” Cress, 2006-Ohio-6501, at ¶ 39. When asked whether he was afraid
Mr. Monfort was going to cause him physical harm, Father responded “yeah.” This Court noted
in Simcox that the standard is whether, because of the defendant’s conduct, “a reasonable person
would have been placed in fear of imminent physical harm.” State v. Simcox, 9th Dist. Wayne No.
06CA0031,
2007-Ohio-1217 at ¶ 11. Sergeant Curtin testified that Father appeared very fearful
of Mr. Monfort and he believed that Father was in fear of his life that night. Sergeant Curtin
prepared the complaint because Father seemed to be in fear of Mr. Monfort. Officer Ondecker
testified that Father seemed fearful of Mr. Monfort. Father talked about the threats and his fear of
Mr. Monfort before the pink slip discussion occurred.
{¶16} Viewing the evidence in a light most favorable to the state, a rational trier of fact
could have found the essential elements of domestic violence proven beyond a reasonable doubt.
Appellant’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
APPELLANT’S CONVICTION WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
{¶17} Mr. Monfort next argues that his conviction was against the manifest weight of the
evidence. We disagree.
{¶18} When deciding whether a criminal conviction is against the manifest weight of the
evidence, this Court must consider the entire record and “weigh the evidence and all reasonable
inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in
the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice
that the conviction must be reversed and a trial ordered.” State v. Otten, 33 Ohio App.3d 339, 340
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(9th Dist.1986). A reversal on a manifest weight of the evidence challenge is reserved for
exceptional causes where the evidence weighs heavily against the conviction. Thompkins, 78 Ohio
St.3d at 387.
{¶19} Mr. Monfort argues that his conviction was against the manifest weight of the
evidence as there was a conflict in Father’s testimony. The alleged conflict was whether Father
was fearful of imminent physical harm or whether Father’s fear was based on past events. The
weight of the evidence presented by the state, however, supports the trial court’s guilty finding.
{¶20} Father testified that he called the police because Mr. Monfort’s rage was showing
through again; Mr. Monfort was behaving aggressively; Mr. Monfort punched the wall near his
mother’s head; and because he was afraid of Mr. Monfort. Father told the police that he was afraid
of Mr. Monfort that evening. Sergeant Curtin prepared the complaint in this case because Father
appeared to be in fear of his life that night. Officer Ondecker testified that Father seemed fearful
of Mr. Monfort that evening.
{¶21} The weight of the evidence presented by the state at trial supports the trial court’s
guilty finding. Mr. Monfort’s second assignment of error is overruled.
THIRD ASSIGNMENT OF ERROR
WHETHER TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO
FILE A JURY DEMAND AND BY FAILING TO MOVE FOR ACQUITAL
PURSUANT TO CRIMINAL RULE 29.
{¶22} Mr. Monfort argues in his third assignment of error that his trial counsel was
ineffective. We disagree.
{¶23} To prove ineffective assistance of counsel, Mr. Monfort must establish that: (1) his
counsel's performance was deficient, and (2) the deficient performance prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984). Counsel’s performance is deficient if it fell
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“below an objective standard of reasonable representation.” State v. Bradley, 42 Ohio St.3d 136
(1989), paragraph two of the syllabus. “This requires showing that counsel made errors so serious
that counsel was not functioning as ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Strickland,
466 U.S. at 687. To establish resulting prejudice, Mr. Monfort must prove that “there
exists a reasonable probability that, were it not for counsel's errors, the result of the trial would
have been different.” Bradley, 42 Ohio St.3d at paragraph three of the syllabus. Both prongs
under Strickland must be established to support an ineffective assistance of counsel claim.
Strickland at 687. “An error by counsel, even if professionally unreasonable, does not warrant
setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.”
Id.
at 691.
{¶24} Mr. Monfort’s suggestion that a jury would have rendered a different verdict is
speculative and does not support a reversal of the conviction. First, the record is devoid of
evidence that Mr. Monfort sought a jury or did not agree with the decision to try the case to the
trial court. Assuming arguendo that the failure to file a jury demand was the result of professional
negligence on counsel’s part, Mr. Monfort has not demonstrated prejudice as a result thereof.
Merely suggesting that a jury may have rendered a different decision does not establish prejudice.
Like the appellant in State v. Bullard, 9th Dist. Wayne No. 20AP0032, 2021-Ohio-4044, Mr.
Monfort “merely argues that the outcome could have been different instead of arguing how the
outcome would have been different if he received a jury trial.” Id. at ¶ 22. Mr. Monfort cannot
point to evidence in the record to establish that the trial court was biased or prejudiced against him
or that he was prejudiced by proceeding with a bench trial. Simply arguing that he could have had
a jury trial, had counsel filed a demand, does not establish prejudice. Akron v. Fitzgerald, 9th Dist.
Summit No. 22381,
2005-Ohio-2411, ¶13.
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{¶25} Mr. Monfort also argues that, because the evidence was insufficient to sustain a
domestic violence conviction, his trial counsel should have moved for an acquittal pursuant to
Crim.R. 29. In resolving Mr. Monfort’s first and second assignments of error, this Court concludes
that the domestic violence conviction was sustained by sufficient evidence and that the weight of
the evidence presented at trial supports the trial court’s guilty finding. The record establishes that
Mr. Monfort, by threat of force, caused Father to believe that Mr. Monfort would cause imminent
physical harm to Father. Among other actions, Mr. Monfort punched a wall near his mother; was
aggressive in his stance; and was loud. Father reasonably believed that Mr. Monfort would cause
imminent physical harm. The record supports a domestic violence conviction. Because the state
presented sufficient evidence to sustain a conviction, a Crim.R. 29 motion would have been
meritless. See State v. Worthy, 9th Dist. Summit No. 23791, 2008-Ohio-1448, ¶ 17. “[C]ounsel’s
failure to make a Crim.R. 29 motion for acquittal is not ineffective assistance of counsel where
such a motion would have been fruitless.” State v. McCroskey, 9th Dist. Wayne No. 96CA0026,
1997 WL 164322, *5 (Apr. 2, 1997).
{¶26} Mr. Monfort has failed to demonstrate that trial counsel’s actions were deficient
and that he was prejudiced by trial counsel’s performance. Strickland, 466 U.S. at 687. The record
does not indicate that a Crim.R. 29 motion for acquittal had any merit. Counsel’s failure to file
such a motion “can be attributed to sound trial strategy as well as to ethical considerations of filing
potentially frivolous motions.” Defiance v. Cannon,
70 Ohio App.3d 821, 826 (3d Dist.1990).
{¶27} Accordingly, for the reasons set forth above, Mr. Monfort’s third assignment of
error is overruled.
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III.
{¶28} The judgment of the Stow Municipal Court finding Mr. Monfort guilty of domestic
violence in violation of R.C. 2919.25(C) is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Stow Municipal Court,
County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this
journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
SCOT STEVENSON
FOR THE COURT
SUTTON, P. J.
FLAGG LANZINGER, J.
CONCUR.
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APPEARANCES:
CATHERINE MEEHAN, Attorney at Law, for Appellant.
SARA FAGNILLA, Prosecuting Attorney, for Appellee.
