[Cite as State v. Cabrera,
2023-Ohio-770.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY
STATE OF OHIO, CASE NOS. 2022-A-0083
CITY OF ASHTABULA, 2022-A-0084
2022-A-0085
Plaintiff-Appellee, 2022-A-0086
- vs -
Criminal Appeals from the
ELISEO CABRERA, Municipal Court
Defendant-Appellant.
Trial Court Nos. 2021 CRB 01555 C
2021 CRB 01555 A
2021 CRB 01555 B
2021 CRB 01555 D
OPINION
Decided: March 13, 2023
Judgment: Affirmed
Cecilia M. Cooper, Ashtabula City Solicitor, and Lori B. Lamer, Special Assistant
Solicitor, 110 West 44th Street, Ashtabula, OH 44004 (For Plaintiff-Appellee).
Margaret Brunarski, Ashtabula County Public Defender, and Michael J. Ledenko,
Assistant Public Defender, 22 East Jefferson Street, Jefferson, OH 44047 (For
Defendant-Appellant).
EUGENE A. LUCCI, J.
{¶1} Appellant, Eliseo Cabrera, appeals his conviction for domestic violence
following a bench trial.
{¶2} In 2021, complaints were filed in four separate cases charging Cabrera with
the following first-degree misdemeanors: criminal damaging in violation of R.C.
2909.06(A)(2), endangering children in violation of R.C. 2912.22(C)(1), domestic violence
(naming Cabrera’s daughter as the victim) in violation of R.C. 2919.25(A), and domestic
violence (naming Cabrera’s girlfriend as the victim) in violation of R.C. 2919.25(C).1 The
complaints stemmed from a dispute between Cabrera and his girlfriend that occurred at
the home where they resided with their three children on the evening of December 6,
2021.
{¶3} Cabrera pleaded not guilty, and the cases proceeded to a consolidated
bench trial. The state presented the testimony of Cabrera’s girlfriend and the responding
police officer. After the close of the state’s case, the court dismissed all of the complaints
except the complaint charging Carbrera with domestic violence against his daughter.
Cabrera then testified on his own behalf, and the defense rested.
{¶4} Thereafter, the trial court found Cabrera guilty of domestic violence as
charged in the sole remaining complaint and proceeded directly to sentencing. The court
sentenced Cabrera to 60 days of confinement, with 50 days suspended, six months of
probation with conditions, and a $150.00 fine. Upon Cabrera’s motion, the court stayed
the sentence pending appeal.
{¶5} In his sole assigned error, Cabrera argues:
The trial court committed prejudicial error and deprived Eliseo
Cabrera of due process of law as guaranteed by the
Fourteenth Amendment to the United States Constitution and
Article One, Section Ten of the Ohio Constitution by finding
Mr. Cabrera guilty of domestic violence because the
conviction was not supported by sufficient evidence and is
against the manifest weight of the evidence.
1. With respect to the case alleging domestic violence against Cabrera’s girlfriend, absent circumstances
not alleged here, a violation of R.C. 2919.25(C) is a misdemeanor of the fourth degree. At trial, the state
acknowledged that this complaint was incorrectly worded. As this complaint was ultimately dismissed, we
merely note the discrepancy for clarification.
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{¶6} “Whether the evidence is legally sufficient to sustain a verdict is a question
of law.” State v. Thompkins, 78 Ohio St.3d 380, 386,
678 N.E.2d 541 (1997). “In essence,
sufficiency is a test of adequacy.”
Id. “In a sufficiency-of-the-evidence inquiry, the
question is whether the evidence presented, when viewed in a light most favorable to the
prosecution, would allow any rational trier of fact to find the essential elements of the
crime beyond a reasonable doubt.” State v. Dent,
163 Ohio St.3d 390,
2020-Ohio-6670,
170 N.E.3d 816, ¶ 15, citing State v. Jenks,
61 Ohio St.3d 259, 259-60,
574 N.E.2d 492
(1991), paragraph two of the syllabus.
{¶7} Unlike sufficiency of the evidence, “[w]eight of the evidence concerns ‘the
inclination of the greater amount of credible evidence … to support one side of the issue
rather than the other.’” (Emphasis sic.) Thompkins at 387, quoting Black’s Law Dictionary
1594 (6th Ed.1990). “When a court of appeals reverses a judgment of a trial court on the
basis that the verdict is against the weight of the evidence, the appellate court sits as a
‘“‘thirteenth juror’”’ and disagrees with the factfinder’s resolution of the conflicting
testimony.”
Thompkins at 387, quoting Tibbs v. Florida,
457 U.S. 31, 42,
72 L.Ed.2d 652,
102 S.Ct. 2211, 2218 (1982). When considering challenges to the weight of the evidence,
the appellate court reviews “‘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.’”
Thompkins at 387, quoting State v. Martin,
20 Ohio App.3d 172, 175,
485 N.E.2d 717 (1st
Dist.1983). “‘The discretionary power to grant a new trial should be exercised only in the
exceptional case in which the evidence weighs heavily against the conviction.’”
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Thompkins at 387, quoting
Martin at 175; accord State v. Masters, 11th Dist. Lake No.
2019-L-037,
2020-Ohio-864, ¶ 18-19.
{¶8} Here, Cabrera was convicted of domestic violence against his daughter in
violation of R.C. 2919.25(A), which provides that “[n]o person shall knowingly cause or
attempt to cause physical harm to a family or household member.”
{¶9} At trial, the state first presented the testimony of Cabrera’s girlfriend. The
girlfriend testified that she and Cabrera have been in a relationship intermittently for 11
years, and they lived together with their three children. She maintained that, on the date
of the incident, she and Cabrera were engaged in a verbal altercation. Ultimately, the
girlfriend went upstairs to lie down with the children. Subsequently, Cabrera grabbed a
telephone which he brought to the girlfriend, telling her that she could call the police. The
couple then began to argue about who was going to call the police, at which point Cabrera
“just tossed the phone,” which hit the couple’s then eight-year-old daughter on the lip.
The daughter was upset, and the girlfriend attempted to calm her. The girlfriend then took
the children to a neighbor’s house for a short time. When the girlfriend returned home,
the house was in disarray, and Cabrera was sleeping. At that point, the girlfriend called
the police.
{¶10} The responding officer testified that when he arrived, household items and
clothing were strewn about the home. The officer woke Cabrera, who smelled strongly
of alcohol, and his eyes were red and glassy, appearing intoxicated. Cabrera denied the
allegations that he had thrown a phone and struck his daughter. The officer observed the
daughter and noticed some redness and possible swelling on her lips.
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{¶11} Following the officer’s testimony, the state rested and moved to amend the
endangering children and criminal damaging charges. The trial court denied the motion.
Cabrera moved to dismiss the complaints charging endangering children and domestic
violence against the girlfriend pursuant to Crim.R. 29. The trial court then dismissed the
complaints charging endangering children, criminal damaging, and domestic violence
involving the girlfriend, concluding that these offenses “were not properly charged in the
complaints.”
{¶12} Cabrera then testified in his own defense. Cabrera maintained that, on the
evening at issue, he and his girlfriend were rearranging items in their home to make room
for a large Christmas tree. While they were moving the items, they consumed alcohol.
The couple had been arguing regarding the girlfriend purportedly being unfaithful.
Thereafter, the couple began to argue regarding whether the girlfriend would leave with
the children, and Cabrera insisted that the girlfriend would not leave in the car because
the car was titled to Cabrera, the girlfriend had not yet obtained her license, and the
girlfriend had been drinking. At this point in the argument, the girlfriend and the couple’s
daughters were in the living room, close to the door. Cabrera obtained the house
telephone to call the police, and the girlfriend tried to take it from him. While they were
“tussling” over the telephone, it “flew” from their hands, and a large portion of the phone
landed by the stairs, and a smaller portion of it became dislodged. Cabrera was unaware
of where the smaller portion of the telephone ultimately landed. Cabrera maintained that
he did not throw the phone and did not see it hit the daughter. Cabrera acknowledged
that the phone was a house telephone, “not a little phone.” After the struggle over the
telephone, the girlfriend left. Cabrera started to tidy the house and then fell asleep.
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{¶13} After the defense rested, defense counsel renewed the Crim.R. 29 motion,
although counsel acknowledged it “may be moot” due to the trial court’s previous ruling.
The trial court overruled the motion and thereafter found Cabrera guilty.
{¶14} On appeal, Cabrera maintains that the evidence was insufficient to establish
that he “knowingly” caused harm to his daughter. R.C. 2901.22(B) provides, in relevant
part, “A person acts knowingly, regardless of purpose, when the person is aware that the
person’s conduct will probably cause a certain result or will probably be of a certain
nature.” “This court has held that the legal concept of ‘knowingly’ incorporates the
scienter requirement that one ought to know one’s actions will ‘probably cause certain
results.’” State v. Krause, 11th Dist. Lake No. 2021-L-019, 2021-Ohio-3657, ¶ 39, quoting
State v. Magnusson, 11th Dist. Lake No. 2006-L-263,
2007-Ohio-6010, ¶ 51.
{¶15} Cabrera maintains that the evidence failed to demonstrate that he acted
knowingly because (1) the state’s evidence was insufficient to establish that he knowingly
caused the daughter physical harm, and (2) Cabrera testified that he did not throw the
phone. The former argument pertains to the sufficiency of the evidence, while the latter
argument pertains to the credibility of the witnesses, and thus the weight of the evidence.
{¶16} As to sufficiency, viewing the evidence in a light most favorable to the State,
the evidence indicates that, after Cabrera and his girlfriend fought over the telephone,
Cabrera threw the telephone with enough force as to cause visible injury to the daughter’s
face. See Dent, 2020-Ohio-6670, at ¶ 15. A rational trier of fact could reasonably infer
that Cabrera acted “knowingly,” i.e., with awareness that his conduct of throwing a
telephone toward his daughter would probably cause physical harm to her. See R.C.
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2901.22(B). Accordingly, sufficient evidence supports the culpable mental state of
“knowingly.”
{¶17} As to the weight of the evidence, the trial court, as trier of fact, was free to
believe or disbelieve the testimony of the witnesses. State v. Bennett, 11th Dist. Lake
No. 2022-L-007, 2022-Ohio-4471, ¶ 15, quoting State v. Haney, 11th Dist. Lake No. 2012-
L-098,
2013-Ohio-2823, ¶ 43 (“‘[t]he trier of fact is free to believe or disbelieve all or any
of the testimony’ and ‘is in the best position to take into account inconsistencies, along
with the witnesses’ manner and demeanor, and determine whether the witnesses’
testimony is credible’”). Accordingly, it was within the trial court’s province to discredit
Cabrera’s testimony pertaining to the incident. We cannot say this is the extraordinary
case where the trial court “clearly lost its way and created such a manifest miscarriage of
justice that the conviction must be reversed and a new trial ordered.” See Martin,
20 Ohio
App.3d at 175.
{¶18} Accordingly, Cabrera’s assigned error lacks merit.
{¶19} The judgment is affirmed.
MARY JANE TRAPP, J.,
MATT LYNCH, J.,
concur.
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