[Cite as State v. Terry,
2023-Ohio-3131.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-230049
TRIAL NO. 22CRB-20250
Plaintiff-Appellee, :
O P I N I O N.
vs. :
TREVON TERRY, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: September 6, 2023
Emily Smart Woerner, City Solicitor, William T. Horsley, Chief Prosecuting
Attorney, and Joseph Otero, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Krista Gieske,
Assistant Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
W INKLER , Judge.
{¶1} Following a bench trial in municipal court, defendant-appellant
Trevon Terry was convicted of one misdemeanor count of domestic violence in
violation of R.C. 2919.25(A). He has appealed that conviction, arguing that a
cell-phone video recorded immediately after the incident, which depicts Terry
holding a knife, was improperly admitted, that his conviction was based on
insufficient evidence and that his conviction was against the manifest weight of
the evidence. For the reasons set forth below, we affirm Terry’s conviction.
Facts and Procedural History
{¶2} On November 27, 2022, Trevon Terry and Kiara Winfield were
arguing over the end of their two-year romantic relationship, where they shared
a three-year-old boy. The couple had been exchanging heated text messages
earlier that day, and Winfield asked Terry to leave their shared apartment.
Around 5:00 p.m., Winfield returned from work to their apartment and found
Terry still packing his belongings. The text-message argument quickly
restarted in person. The argument escalated when Terry took the only
television, which originally belonged to Terry’s mother. While arguing, the two
“got in one another’s faces.”
{¶3} As the argument escalated, Terry put one hand around
Winfield’s throat and pushed her away. The force of the push on Winfield’s
neck choked her. In response, Winfield pushed back at Terry, scratched his
face, and threatened to call the police. At the time, Terry was on probation for
an earlier assault conviction. Terry then retrieved a knife, either from the
kitchen or a nearby desk, and briefly pointed it at Winfield. Terry placed his
hand on Winfield’s neck a second time, but Terry did not push or choke her.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} Winfield then took out her cell phone and began recording a
video of the dispute. Terry then put the knife down on a table, but it fell to the
floor. Winfield lunged to secure it. The dispute deescalated and Winfield went
to check on their son in the next room while Terry collected his belongings and
left. Winfield called her family, who arrived around 10:00 p.m. At the behest
of her family, Winfield reported the incident to the police. The responding
officer arrived that night and took pictures of Winfield’s neck.
{¶5} Terry was charged with one count of domestic violence in
violation of R.C. 2919.25(A), a misdemeanor of the first degree. The matter
was tried to the bench. There the state sought to introduce Winfield’s video
taken after Terry removed his hand from Winfield’s neck, which the court
admitted over objection with little discussion. At the close of trial, the judge
found Terry guilty and imposed a suspended sentence with two years’
community control. Terry timely appealed.
Admission of Evidence
{¶6} In his first assignment of error, Terry contends that the trial
court improperly admitted Winfield’s cell-phone video into evidence. A trial
court’s decision to admit or exclude evidence is reviewed for an abuse of
discretion. State v. Morris, 132 Ohio St.3d 337,
2012-Ohio-2407,
972 N.E.2d 528, ¶ 19. An abuse of discretion connotes a judgment that is
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore,
5 Ohio St.3d 217, 219,
450 N.E.2d 1140 (1983). “[A]s the [Ohio] Supreme Court
recently clarified, ‘courts lack the discretion to make errors of law.’ ” State v.
Austin, 1st Dist. Hamilton Nos. C-210140 and C-210141,
2021-Ohio-3608, ¶ 5,
quoting Johnson v. Abdullah,
166 Ohio St.3d 427,
2021-Ohio-3304,
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OHIO FIRST DISTRICT COURT OF APPEALS
187 N.E.3d 463, ¶ 39. But an error in an evidentiary ruling does not warrant
reversal of the trial court’s judgment unless the ruling affected the substantial
rights of the complaining party. Evid.R. 103(A); State v. Griffin, 1st Dist.
Hamilton No. C-020084,
2003-Ohio-3196, ¶ 13.
{¶7} Terry objected to the admission of the cell-phone video under
Evid.R. 403, arguing that the video was not probative of whether Terry
knowingly harmed Winfield and that the danger of unfair prejudice
substantially outweighed any potential probative value. Under Evid.R. 402,
“[t]he general principle that guides admission of evidence is that ‘[a]ll relevant
evidence is admissible … .’ ” State v. Morris, 132 Ohio St.3d 337,
2012-Ohio-2407,
972 N.E.2d 528, ¶ 11, quoting Evid.R. 402. Evid.R. 403
provides “exceptions to this general principle and provides circumstances for
the exclusion of relevant evidence.”
Id., citing Evid.R. 403. One such exception
is that relevant evidence is not admissible when “its probative value is
substantially outweighed by the danger of unfair prejudice,” among other
things. State v. Brown, 2d Dist. Montgomery No. 24541,
2012-Ohio-1848, ¶ 31,
citing Evid.R. 402 and 403(A).
{¶8} The cell-phone video taken by Winfield is probative of multiple
facts of consequence. First, it goes to whether Terry knowingly harmed
Winfield because the video depicts Terry’s anger after Winfield threatened to
call the police as well as Terry’s confrontational demeanor. Terry’s statements
contained in the video are also probative of whether Terry knowingly grabbed
and pushed Winfield. Had Terry unintentionally grabbed and pushed
Winfield, presumably the video would show surprise or a pause instead of the
continuation of the argument.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶9} The cell-phone video is also relevant because it reinforces
Winfield’s credibility. The state presented its case with Winfield as the sole
witness. Thus, her credibility was at issue. The video supports Winfield’s
credibility because Winfield testified that Terry had a knife during part of the
dispute and a knife can be seen in Terry’s right hand in the video. By
corroborating this part of Winfield’s testimony, the video suggests Winfield’s
other testimony about being grabbed and choked is more likely to be true.
{¶10} The cell-phone video is also not unfairly prejudicial. Terry
argues the video is unfairly prejudicial because it invites the judge to convict
Terry of first-degree domestic violence for knowingly harming a family
member under R.C. 2919.25(A) based on evidence for the distinct offense of
second-degree domestic violence for using threats of force on a family member
under R.C. 2919.25(C). Terry was tried in a bench trial. Thus, “we presume
that ‘the court considered only the relevant, material, and competent evidence
in arriving at its judgment unless it affirmatively appears to the contrary.’ ”
State v. Robbins, 1st Dist. Hamilton No. C-120107, 2013-Ohio-612, ¶ 14,
quoting State v. White,
15 Ohio St.2d 146, 151,
239 N.E.2d 65 (1968). There is
no indication that the judge abandoned her duty and integrity and convicted
Terry of first-degree domestic violence because of a video showing evidence of
second-degree domestic violence. Rather, to the contrary, the judge stated at
the close of the state’s case that “I’m going to admit [the cell-phone video] for
what it’s worth.” This statement suggests that the trial court declined any
possible invitation to decide the case on an impermissible basis and only
considered the video in light of its relevance to the elements of R.C. 2919.25(A).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶11} Because the cell-phone video was relevant and its probative
value was not substantially outweighed by the danger of unfair prejudice, we
overrule Terry’s first assignment of error.
Sufficiency of the Evidence
{¶12} In his second assignment of error, Terry argues that his
conviction was not supported by legally sufficient evidence. A challenge to the
sufficiency of evidence supporting a conviction requires a court to determine
whether the state has met its burden of production at trial. State v. Thompkins,
78 Ohio St.3d 380, 390,
678 N.E.2d 541 (1997) (Cook, J., concurring). The
relevant inquiry, when reviewing the sufficiency of the evidence, 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 offense
proved beyond a reasonable doubt. State v. Jenks,
61 Ohio St.3d 259,
574 N.E.2d 492 (1991), paragraph two of the syllabus; State v. Ojile, 1st Dist.
Hamilton Nos. C-110677 and C-110678,
2012-Ohio-6015, ¶ 48. In deciding if
the evidence was sufficient, we neither resolve evidentiary conflicts nor assess
the credibility of the witnesses. State v. Thomas, 1st Dist. Hamilton
No. C-120561,
2013-Ohio-5386, ¶ 45. It is a question of law for the court to
determine and a court is not to weigh the evidence unless, after viewing the
evidence, it weighs heavily against conviction.
Id.
{¶13} To sustain a conviction for domestic violence under
R.C. 2919.25(A), a person must (1) knowingly (2) cause or attempt to cause
(3) physical harm (4) to a family or household member. Terry’s sufficiency
argument contests only the element of physical harm. R.C. 2901.01(A)(3)
defines “physical harm” to mean an “injury, illness, or other physiological
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OHIO FIRST DISTRICT COURT OF APPEALS
impairment, regardless of its gravity or duration.” This court has consistently
applied this broad statutory definition, explaining that “[t]he slightest injury is
sufficient to prove physical harm.” State v. Jackson, 1st Dist. Hamilton
No. C-210634, 2023-Ohio-785, ¶ 21, quoting State v. Thornton, 1st
Dist. Hamilton Nos. C-210629, C-210630, C-210631 and C-210632,
2022-Ohio-3452, ¶ 30, citing State v. Daniels,
2018-Ohio-1701,
111 N.E.3d 708, ¶ 35 (1st Dist.).
{¶14} There is sufficient evidence, when viewed in the light most
favorable to the state, that Terry caused Winfield “physical harm” within the
meaning of the domestic-violence statute. A victim’s testimony, if found
credible, can provide sufficient evidence to sustain a conviction. City of
Cleveland v. Watson, 8th Dist. Cuyahoga No. 108746, 2020-Ohio-3284, ¶ 38.
Though the photographs taken that night do not show any physical marks or
bruises, Winfield’s testimony that Terry put his hands on her neck twice during
the argument and that Terry choked her the first time Terry grabbed Winfield’s
throat is sufficient evidence to meet the broad statutory definition of “physical
harm.” See
Daniels at ¶ 35 (grab of face causing pain is sufficient injury to
constitute “physical harm”); Watson at ¶ 35 (pain from pulling hair extensions
is sufficient injury to constitute “physical harm,” though victim suffered no
lasting or serious physical harm); State v. Hustead,
83 Ohio App.3d 809,
615
N.E.2d 1081 (4th Dist.1992) (slap to the face, which causes no redness, bruising
or head movement, is sufficient proof of “physical harm” under patient-abuse
statute that uses the same definition for the term).
{¶15} Viewing the testimony in this case in the light most favorable to
the prosecution, a rational finder of fact can reasonably conclude that choking
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OHIO FIRST DISTRICT COURT OF APPEALS
is an injury, illness, or other physiological impairment that constitutes physical
harm. Because Terry does not contest the sufficiency of the evidence as to any
other element of his conviction, we find that there was sufficient evidence to
support Terry’s conviction.
Manifest Weight of the Evidence
{¶16} Additionally, Terry argues in his second assignment of error
that his conviction is against the manifest weight of the evidence. In contrast
to a challenge to the sufficiency of the evidence, an appellate court, in deciding
whether a conviction is against the manifest weight of the evidence, determines
whether the state has appropriately carried its burden of persuasion.
Thompkins, 78 Ohio St. 3d at 390,
678 N.E.2d 541 (Cook, J., concurring). In
reviewing the manifest weight of the evidence, an appellate court must review
“the entire record, weigh the evidence and all reasonable inferences, consider
the credibility of the 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 new trial
ordered.” State v. Bailey, 1st Dist. Hamilton No. C-140129,
2015-Ohio-2997,
¶ 59, quoting
Thompkins at 387.
{¶17} In reviewing a challenge to the weight of the evidence, this court
sits as a “thirteenth juror.” State v. Curry, 1st Dist. Hamilton No. C-180493,
2020-Ohio-1230, ¶ 17, quoting Thompkins at 387. However, the trier of fact is
in the best position to judge the credibility of the witnesses. See State v.
DeHass,
10 Ohio St.2d 230,
227 N.E.2d 212 (1967), paragraph one of the
syllabus; State v. Jackson, 1st Dist. Hamilton No. C-210634,
2023-Ohio-785,
¶ 17. Accordingly, a reviewing court will not substitute its judgment for that of
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OHIO FIRST DISTRICT COURT OF APPEALS
the trier of fact on the issue of witness credibility unless it is patently apparent
that the trier of fact lost its way in arriving at its verdict. State v. Porter, 1st
Dist. Hamilton No. C-200459, 2021-Ohio-3232, ¶ 25.
{¶18} The trial court was entitled to believe Winfield’s testimony that
Terry put one hand around Winfield’s throat and pushed her away, choking
her, and that Terry put his hand on Winfield’s neck a second time, but did not
choke her. See State v. McDaniel, 2021-Ohio-724,
168 N.E.3d 910, ¶ 25 (1st
Dist.), quoting State v. Robinson, 12th Dist. Butler No. CA2018-08-163,
2019-Ohio-3144, ¶ 29 (holding a conviction is not against the manifest weight
of the evidence simply because the trier of fact accepts one explanation over
another). The fact that the video corroborated Winfield’s testimony that Terry
had a knife supports the trial court’s credibility determination. Based on a
careful review of the entire record, we hold that the trier of fact did not clearly
lose its way and create a manifest miscarriage of justice in convicting Terry of
domestic violence. This is not an exceptional case where the evidence weighs
heavily against conviction.
{¶19} Because we hold that Terry’s conviction was supported by
sufficient evidence and was not contrary to the manifest weight of the evidence,
we overrule the second assignment of error.
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OHIO FIRST DISTRICT COURT OF APPEALS
Conclusion
{¶20} Having overruled both assignments of error, we affirm the
judgment of the trial court.
Judgment affirmed.
C ROUSE , P.J., and K INSLEY , J., concur.
Please note:
The court has recorded its own entry on this date.
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