[Cite as State v. Rodriguez,
2024-Ohio-5632.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2024-03-038
: OPINION
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:
JONATHAN RODRIGUEZ, :
Appellant. :
CRIMINAL APPEAL FROM HAMILTON MUNICIPAL COURT
Case No. CRB 23 03303
Brian Harrison, Prosecuting Attorney, City of Hamilton, and Antoinette M. Dillard,
Assistant Law Director, City of Hamilton, for appellee.
Christopher P. Frederick, for appellant.
M. POWELL, J.
{¶ 1} Appellant, Jonathan Rodriguez, appeals his conviction in the Hamilton
Municipal Court for domestic violence.
{¶ 2} On November 1, 2023, appellant was charged by complaint with two counts
of domestic violence, both fourth-degree misdemeanors, in two separate cases.
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Appellant entered a not guilty plea to the charges and a bench trial was held on February
7, 2024. Trial testimony revealed the following facts.
{¶ 3} Appellant's mother ("Mother") is married to Luis Rodriguez Leiva ("Leiva").
Leiva and Mother reside in Hamilton, Ohio. During the late evening hours of September
11, 2023, while Leiva and Mother were in bed, appellant called them about 30 times
regarding borrowing a car. Mother eventually passed the phone to Leiva. Leiva told
appellant that they were not lending him the car and that appellant needed to stop
bothering them. Appellant then threatened to kill Leiva, made other violent threats, told
Leiva he was going to come to their house, and stated, "they're going to need to lock me
up because I'm going to do something bad." After being told by Mother that he was not
welcome there, appellant stated he could come to their home whenever he felt like it.
Concerned, Leiva called 9-1-1 and went to the Hamilton Police Department to report the
incident. The following day, November 12, 2023, appellant called Leiva and made several
threats. He subsequently drove to Leiva's home. However, Leiva was not home.
{¶ 4} Appellant moved the trial court for acquittal at the close of the state's case-
in-chief. The trial court granted appellant's motion for acquittal regarding the November
12, 2023 incident (Case No. CRB2303302) and denied the motion regarding the
November 11, 2023 incident (Case No. CRB2303303). Appellant then testified on his
own behalf. Appellant admitted repeatedly calling Leiva and Mother late at night on
November 11, 2023, to borrow a car and being angry that he could not borrow the car.
Appellant admitted he told Leiva that he would kill him but denied he intended to go to
their house that night. Appellant explained that while he and Leiva have had several
heated arguments in the past, this was their ugliest and most serious argument. Appellant
described his demeanor that evening as being the most angry and forceful that he had
ever been with Leiva. The recording of Leiva's 9-1-1 call on November 11, 2023, and
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some of appellant's calls were played and admitted into evidence.
{¶ 5} Based upon the foregoing, the trial court found appellant guilty of fourth-
degree misdemeanor domestic violence and sentenced him to a suspended 30-day jail
sentence, two years of community control, and no contact with Leiva.
{¶ 6} Appellant appeals his conviction, raising two assignments of error.
{¶ 7} Assignment of Error No. 1:
{¶ 8} THE TRIAL COURT ERRED IN OVERRULING MR. RODRIGUEZ'S
MOTION FOR ACQUITTAL PURSUANT TO CRIM.R. 29.
{¶ 9} Appellant argues that his domestic violence conviction is not supported by
sufficient evidence because the state failed to prove that his threat to kill Leiva was
imminent.
{¶ 10} "The review of a court's denial of a motion for acquittal under Crim.R. 29 is
governed by the same standard as that used for determining whether a verdict is
supported by sufficient evidence." State v. Listo, 2010-Ohio-4408, ¶ 10 (12th Dist.).
When reviewing the sufficiency of the evidence underlying a criminal conviction, an
appellate court examines the evidence to determine whether such evidence, if believed,
would support a conviction. State v. Peyton,
2017-Ohio-243, ¶ 41 (12th Dist.). 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. In other words, the test for sufficiency requires
a determination as to whether the state has met its burden of production at trial. Id.
{¶ 11} Appellant was convicted of domestic violence in violation of R.C.
2919.25(C), which provides, "No 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." For a violation of R.C. 2919.25(C), the state must
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prove that the victim believed the offender would cause him or her imminent physical
harm at the time the incident took place. State v. Casey, 2024-Ohio-689, ¶ 11 (12th Dist.).
The state of mind of the victim is an essential element of the crime.
Id. "Thus, there must
be some evidence that a victim either stated, or from other evidence it could be inferred,
that the victim thought the accused would cause imminent physical harm."
Id.
{¶ 12} Appellant argues that his physical harm threat was not imminent because
the threat was conveyed through a phone call and not in person and Leiva was aware
that appellant placed the call from his home in Covington, Kentucky. Appellant further
argues that the threat was conditional because it depended on Leiva and Mother allowing
appellant to borrow the car.
{¶ 13} Threat "represents a range of statements or conduct intended to impart a
feeling of apprehension in the victim." State v. Cress, 2006-Ohio-6501, ¶ 39. Imminent
has been defined as "ready to take place," "near at hand," "impending," "hanging
threateningly over one's head," or "menacingly near." State v. Tackett,
2005-Ohio-1437,
¶ 14 (4th Dist.). Imminent "does not mean that the offender [will] carry out the threat
immediately or be in the process of carrying it out." State v. McKinney,
2009-Ohio-2225,
¶ 16 (9th Dist.). Rather, the critical inquiry is "whether a reasonable person would be
placed in fear of imminent (in the sense of unconditional, non-contingent), serious
physical harm."
Tackett at ¶ 14. A threat is conditional where a prerequisite must occur
before the actor intends or is empowered to carry out the threat. State v. Diroll, 2007-
Ohio-6930, ¶ 56 (11th Dist.).
{¶ 14} We find that appellant's domestic violence was supported by sufficient
evidence. Leiva testified he believed that appellant was going to harm him because
appellant not only threatened to kill him, he also warned Leiva, "they're going to need to
lock me up because I'm going to do something bad." While Leiva lived in Hamilton, Ohio
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and told the 9-1-1 dispatcher that appellant lived in Covington, Kentucky, there is no
evidence in the record that Leiva knew appellant was in Kentucky when he threatened to
kill Leiva. Leiva did not know where appellant was when he placed the call. The fact that
Leiva went to the police station to report the incident is evidence of Leiva's belief that
physical harm was imminent. Tackett, 2005-Ohio-1437 at ¶ 15-16. Moreover, the
evidence does not support appellant's assertion that the threat was conditional. Leiva
told appellant he could not borrow the car and appellant responded by threatening to kill
Leiva. While the threat may have been prompted by Leiva's refusal to let appellant borrow
the car, it was not contingent upon appellant borrowing the car such as, "loan me the car
or I'll kill you," or "if you don't let me borrow the car, I'll kill you." Construing the evidence
in the light most favorable to the state, we find that a rational trier of fact could have found
that appellant's threat caused Leiva to believe he would suffer imminent physical harm.
{¶ 15} Appellant's first assignment of error is overruled.
{¶ 16} Assignment of Error No. 2:
{¶ 17} MR. RODRIGUEZ'S CONVICTION WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
{¶ 18} Appellant argues that his domestic violence conviction is against the
manifest weight of the evidence because the state failed to prove he knowingly caused
Leiva to believe he would cause him imminent physical harm. In support of his argument,
appellant asserts that (1) it was unlikely he would go to Mother's house without her
consent and at that late hour in the night, (2) the parties were in two separate locations,
20-30 minutes away from one another, (3) appellant's threat was conditional, and (4)
despite prior heated discussions, there had never been a history of physical violence
between appellant and Leiva. "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
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probably be of a certain nature. A person has knowledge of circumstances when the
person is aware that such circumstances probably exist." R.C. 2901.22(B).
{¶ 19} To determine whether a conviction is against the manifest weight of the
evidence, this court must look at the entire record, weigh the evidence and all reasonable
inferences, consider the credibility of the witnesses, and determine whether in resolving
the 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. Peyton, 2017-Ohio-243 at, ¶ 42. While a manifest weight of the evidence
review requires this court to evaluate credibility, the determination of witness credibility is
primarily for the trier of fact to decide. State v. Ward,
2020-Ohio-5054, ¶ 9 (12th Dist.).
Therefore, this court will overturn a conviction due to the manifest weight of the evidence
only in extraordinary circumstances when the evidence presented at trial weighs heavily
in favor of acquittal.
Id.
{¶ 20} Upon reviewing the record, we find that appellant's domestic violence
conviction is not against the manifest weight of the evidence. The state of mind of the
victim is an essential element of the crime. Casey, 2024-Ohio-689 at ¶ 11. Although
Leiva and appellant lived in two separate states 20-30 minutes away from one another,
there is no evidence in the record that appellant was in Kentucky or that Leiva knew
appellant was in Kentucky when he threatened to kill Leiva. Leiva did not know where
appellant was when he placed the call. The fact that Leiva went to the police station to
report the incident is evidence of Leiva's belief that physical harm was imminent. Tackett,
2005-Ohio-1437 at ¶ 15-16. Moreover, as we stated above, the evidence does not
support appellant's assertion that the threat was conditional. While the threat may have
been prompted by Leiva's refusal to let appellant borrow the car, it was not contingent
upon appellant borrowing the car. Finally, while there had never been a history of physical
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violence between appellant and Leiva, appellant admitted he threatened to kill Leiva, his
demeanor that evening was the most angry and forceful he had ever been with Leiva,
and this was their ugliest and most serious argument.
{¶ 21} The trial court found that Leiva's testimony was credible. A conviction is not
against the manifest weight of the evidence simply because the trier of fact believed the
testimony and evidence presented by the state. State v. Lunsford, 2011-Ohio-6529, ¶ 17
(12th Dist.). As the trier of fact, the trial court was best able to view the witnesses and
observe their demeanor, gestures, and voice inflections, and use these observations to
judge the credibility of witnesses and the weight to be given the evidence. State v.
Clemmons,
2020-Ohio-5394, ¶ 24 (12th Dist.). Even though this court may consider the
credibility of the witnesses in conducting our manifest-weight analysis, on this record, we
do not perceive any justifiable reason to second-guess the credibility determinations
made by the trial court.
Id. The trial court did not lose its way and create a manifest
miscarriage of justice in believing the state witnesses' testimony such that appellant's
domestic violence conviction must be reversed and a new trial ordered.
{¶ 22} Appellant's second assignment of error is overruled.
{¶ 23} Having reviewed the record in the present case, we notice and raise, sua
sponte, an error in the trial court's Judgment Entry of Conviction for Case No.
CRB2303303. The sentencing entry mistakenly indicates that appellant pled guilty to
domestic violence, even though the trial court found appellant guilty of the offense
following a bench trial. Under Crim.R. 36, "[c]lerical mistakes in judgments, orders, or
other parts of the record, and errors in the record arising from oversight or omission, may
be corrected by the court at any time." "'The purpose of a nunc pro tunc entry under
Crim.R. 36 is to record actions that actually were taken but not correctly recorded.'" State
v. Baker, 2023-Ohio-1699, ¶ 32 (12th Dist.), quoting State v. Glover,
2021-Ohio-2533, ¶
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11 (2d Dist.). Because the judgment entry of conviction contains a mistake as to the
manner of conviction, we remand this case and direct the trial court to issue a nunc pro
tunc sentencing entry reflecting that appellant was found guilty following a bench trial. Id.;
State v. Chasteen, 2013-Ohio-3573, ¶ 17 (12th Dist.). We note that the Hamilton
Municipal Court made the same mistake in its sentencing entry in Baker. See also State
v. Redden,
2024-Ohio-1088 (12th Dist.).
{¶ 24} Judgment is reversed and the matter is remanded to the Hamilton Municipal
Court for the limited purpose of issuing a nunc pro tunc sentencing entry in Case No.
CRB2303303 to correct the manner of conviction. Baker at ¶ 32. In all other respects,
the judgment of the trial court is affirmed.
BYRNE, P.J., and HENDRICKSON, J., concur.
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