[Cite as State v. Bowling,
2024-Ohio-6060.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2023-10-078
: OPINION
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:
WALTER TERRY BOWLING, :
Appellant. :
CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
Case No. 23CR40179
David P. Fornshell, Warren County Prosecuting Attorney, and Kirsten A. Brandt, Assistant
Prosecuting Attorney, for appellee.
Anne Harvey Law LLC, and Anne Harvey, for appellant.
HENDRICKSON, P.J.
{¶ 1} Appellant, Walter Terry Bowling, appeals from his convictions in the Warren
County Court of Common Pleas for aggravated possession of drugs and domestic
violence. For the reasons discussed below, we affirm his convictions.
{¶ 2} On March 13, 2023, Bowling was indicted on two counts of aggravated
possession of drugs in violation of R.C. 2925.11(A), felonies of the fifth degree, one count
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of domestic violence in violation of R.C. 2919.25(A), a misdemeanor of the first degree,
and one count of aggravated menacing in violation of R.C. 2903.21(A), a misdemeanor
of the first degree. The charges arose following an altercation Bowling had with his
daughter, Rebecca Slusher, on October 24, 2022 in their shared rental home. Slusher
discovered Bowling in possession of drugs, namely methamphetamine and psilocyn.
When she attempted to flush the drugs in the bathroom, Bowling grabbed her, twisted her
arm, and began to strike her. He later threatened to shoot her when she tried to exit the
bathroom with the drugs.
{¶ 3} Bowling pled not guilty to the charges. He waived his right to a jury trial and
a bench trial commenced on August 23, 2023. Slusher and Officer Greg Stallard from the
city of Lebanon Police Department testified on behalf of the state. Slusher testified that
in 2022, she had been caring for Bowling after a series of unfortunate events. Bowling
had been in an ATV accident and suffered multiple broken bones. He was later bitten by
a dog and required surgery to repair the damage. Finally, he had to have knee
replacement surgery. Slusher initially cared for Bowling by traveling to Bowling's home in
Kentucky. However, after Bowling's Kentucky home burnt down in a fire, Bowling moved
to Ohio with Slusher. In August 2022, Slusher leased a condo in Lebanon, Warren
County, Ohio where she, her two children, and Bowling all resided. Bowling gave Slusher
financial power of attorney over his affairs, and the two shared a bank account where
insurance proceeds from the burnt down Kentucky home were deposited.
{¶ 4} In October 2022, Bowling started getting agitated and argumentative with
Slusher. On October 24, 2022, he was especially agitated because he wanted his
boarded dog moved from his daughter Mary's home to a friend's home. When Slusher
advised Bowling that the dog could not be moved in the timeframe Bowling desired,
Slusher described Bowling as becoming "extremely argumentative," "really aggressive,"
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and "just not acting like a normal person."
{¶ 5} Between 11:00 p.m. on October 24, 2022 and 1:00 a.m. on October 25,
2022, Bowling was in the downstairs of Slusher's rental home yelling. Frustrated by the
noise Bowling was making, Slusher went downstairs to confront him. Bowling's bedroom
door was open and Slusher saw Bowling standing near the head of the bed, rolling what
she believed to be a marijuana cigarette. Slusher saw other drugs lying on the bed and
a handgun sitting on Bowling's nightstand. Slusher grabbed the drugs Bowling had on
his bed and told him, "[W]e're not having this stuff in the house." Slusher observed that
the drugs looked like "some sort of dried mushrooms" and "marijuana . . . like liquid
marijuana." Slusher took the drugs to the bathroom next to Bowling's bedroom. As she
did, she noticed that Bowling had more drugs in an open safe in his bedroom.
{¶ 6} Bowling followed Slusher into the bathroom. As Slusher tried to flush the
drugs down the toilet, Bowling attempted to grab the drugs away from Slusher. A struggle
ensued. Slusher called 9-1-1, stating that there were guns in Bowling's room and "all
kinds of drugs" and asking for an officer to respond immediately. At that point, because
Bowling knew the police were on the way to the home, Bowling's efforts went from trying
to save the drugs to trying to flush the drugs. In his attempt to get the drugs, Bowling
grabbed Slusher's arm and twisted it. Slusher testified that while she was on the phone
with 9-1-1, she was bent over trying to shield the drugs from Bowling when he got on her
back and started hitting her with a closed fist. The 9-1-1 phone call was admitted into
evidence, and on the call Slusher can be heard shouting for Bowling to "get off of [her]."
{¶ 7} Slusher took the drugs from the bathroom and went towards the front door
of the home. Bowling told her that she "wouldn't make it to the front door" because "he
would shoot [her]." Slusher opened the front door of the home, threw the drugs outside
on the driveway, and then went back into the house to wake up her son and get him out
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of the house. Slusher then waited for law enforcement to arrive.
{¶ 8} Three city of Lebanon police officers responded to her home, including
Officer Stallard. Slusher gave a statement to the officers about what had transpired with
Bowling. Slusher denied needing medical attention but noted that her arm was red and
swollen from Bowling grabbing it. She also indicated that "it hurt" when Bowling had
grabbed her and when he had hit her.
{¶ 9} On cross-examination, Slusher admitted that after the altercation with
Bowling occurred, she transferred money from the account she shared with Bowling into
her personal bank account. Slusher testified that she transferred the funds to pay for
personal property that she and her children had lost when Bowling's Kentucky home burnt
down, to pay for milage expenses, and to pay for nursing services she had been
performing for Bowling. According to Slusher, she had a contract with Bowling that she
was to be paid for those items, though she did not produce that contract at trial. Slusher
also claimed that Bowling had been texting her "all day" on October 24, 2022 to harass
and threaten her into moving his dog. However, those text messages were never
provided to the state or introduced at trial.
{¶ 10} Officer Stallard testified that he was dispatched to Slusher's home on a
report of a domestic violence dispute. Upon arriving at the residence, he encountered
Slusher, who was waiting for law enforcement on the home's porch. Officer Stallard
described Slusher as "upset," "emotional," and "distraught." Slusher advised the officer
that her arm was "kind of sore," and the officer "observe[d] what appeared to be a fairly
fresh injury" to her arm. The officer noted that Slusher's arm "looked like it was a little bit
swollen" and "[t]here was some redness as well." He testified that it "looked like kind of
a pressure – almost like a pressure injury or possibly like a squeeze or pull potentially."
{¶ 11} Officer Stallard recovered the drugs that Slusher had thrown outside on the
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driveway. Subsequent testing of the drugs revealed that the mushroom-like substance
was 20.72 grams of psilocybin and the other substance was 1.38 grams of
methamphetamine.
{¶ 12} Officer Stallard and the other officers on scene spoke with Bowling about
the drugs and the incident with Slusher. Though Bowling admitted to having an argument
with Slusher, he did not admit to any kind of physical altercation. He also did not admit
that the drugs found on the driveway were his. He did, however, admit that if he were
drug tested, he would "test dirty for weed." Bowling allowed Officer Stallard to look
through his text messages with Slusher and the officer did not find any threatening texts
exchanged between the two. Bowling was placed under arrest. While in route to the jail,
Bowling made statements to Officer Stallard indicating that he believed Slusher was trying
to get him out of the house and take his money.
{¶ 13} Following the state's presentation of its case-in-chief, Bowling moved for
acquittal pursuant to Crim.R. 29. The trial court denied the motion and Bowling called his
daughter Lisa Von Stein as his only witness. Von Stein testified that she had visited with
Bowling for nearly an hour on October 24, 2022. She indicated Bowling was still
recovering from his knee surgery and had a drain on his knee. She testified Bowling had
been walking with the assistance of a walker. She also testified that at the time Bowling's
Kentucky home burnt down, Slusher was not living with Bowling at the home and did not
have any personal belongings in the home. On cross-examination, Von Stein admitted
that she and Slusher were not on "good terms" and had not been on "good terms" since
October 23, 2022.
{¶ 14} After considering the foregoing testimony, the trial court found Bowling not
guilty of aggravated menacing but guilty of the two aggravated possession of drugs
offenses and the domestic violence offense. In reaching this verdict, the court stated, in
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relevant part, the following:
THE COURT: Here's where I'm at with this. You know, I agree
with [the prosecutor] that probably some of the most credible
evidence that a Court will ever see or consider is a 9-1-1 tape
that captures what happened in the moment. I also agree with
[defense counsel]. I think he called this a terrible family
dynamic and a convoluted mess. That seems to sum up the
case right there in its essence.
But, there are a couple of things that I know to be true, Mr.
Bowling. And, the first thing that I know to be true is that the
State of Ohio has proven that you are guilty of the aggravated
possession of drugs charges. It does not make sense to me
that Ms. Slusher would make all of this up in order to get your
money. That just doesn't make sense to me. I also find that
you are guilty of the domestic violence because I do think that
they have met all the elements of the charge involving the
family member and you causing or attempting to cause
physical harm. The aggravated menacing, I got a little bit lost
in the testimony on it, and I think I have some issues about
that. So, I am going to find you not guilty of the aggravated
menacing.
{¶ 15} On September 21, 2023, the trial court sentenced Bowling to three years of
community control. Bowling was ordered to complete drug and alcohol treatment and to
have no contact with Slusher.
{¶ 16} Bowling initially appealed his conviction in October 2023. This court
dismissed his appeal for failure to comply with App.R. 12(A)(2) and 16(A)(7). See State
v. Bowling, 2024-Ohio-1638 (12th Dist.). Bowling subsequently filed a request to re-open
his appeal, and this court granted his motion. See State v. Bowling, 12th Dist. Warren
CA2023-10-078 (June 21, 2024) (Entry Construing Letter as Application to Reopen
Appeal, Granting Application and Appointing Counsel). Bowling now raises the following
two assignments of error.
{¶ 17} Assignment of Error No. 1:
{¶ 18} MR. BOWLING'S CONVICTION FOR AGGRAVATED POSSESSION OF
DRUGS IS AGAINST BOTH THE MANIFEST WEIGHT AND THE SUFFICIENCY OF
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THE EVIDENCE PRESENTED AT TRIAL
{¶ 19} Assignment of Error No. 2:
{¶ 20} MR. BOWLING'S CONVICTION FOR DOMESTIC VIOLENCE IS AGAINST
BOTH THE MANIFEST WEIGHT AND THE SUFFICIENCY OF EVIDENCE PRESENTED
AT TRIAL.
{¶ 21} Bowling argues on appeal that his convictions for aggravated possession of
drugs and domestic violence are not supported by sufficient evidence and are against the
manifest weight of the evidence.
{¶ 22} Whether the evidence presented at trial is legally sufficient to sustain a
verdict is a question of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997); State v.
Grinstead,
2011-Ohio-3018, ¶ 10 (12th Dist.). When reviewing the sufficiency of the
evidence underlying a criminal conviction, an appellate court examines the evidence in
order to determine whether such evidence, if believed, would convince the average mind
of the defendant's guilt beyond a reasonable doubt. State v. Paul,
2012-Ohio-3205, ¶ 9
(12th Dist.). Therefore, "[t]he 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. Jenks,
61
Ohio St.3d 259 (1991), paragraph two of the syllabus.
{¶ 23} A manifest weight of the evidence challenge, on the other hand, examines
the "inclination of the greater amount of credible evidence, offered at a trial, to support
one side of the issue rather than the other." State v. Barnett, 2012-Ohio-2372, ¶ 14 (12th
Dist.). To determine whether a conviction is against the manifest weight of the evidence,
the reviewing court must look at the entire trial 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
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such a manifest miscarriage of justice that the conviction must be reversed and a new
trial ordered. State v. Graham, 2009-Ohio-2814, ¶ 66 (12th Dist.). "While appellate
review includes the responsibility to consider the credibility of witnesses and weight given
to the evidence, 'these issues are primarily matters for the trier of fact to decide.'" State
v. Barnes,
2011-Ohio-5226, ¶ 81 (12th Dist.), quoting State v. Walker,
2007-Ohio-911, ¶
26 (12th Dist.). An appellate court, therefore, will overturn a conviction due to the manifest
weight of the evidence only in extraordinary circumstances to correct a manifest injustice
when the evidence presented at trial weighs heavily in favor of acquittal.
Id., citing
Thompkins,
78 Ohio St.3d at 387. Furthermore, although the legal concepts of sufficiency
of the evidence and weight of the evidence are both quantitatively and qualitatively
different, "[a] determination that a conviction is supported by the manifest weight of the
evidence will also be dispositive of the issue of sufficiency." State v. Jones, 2013-Ohio-
150, ¶ 19 (12th Dist.).
Aggravated Possession of Drugs
{¶ 24} Bowling was convicted of two counts of aggravated possession of drugs in
violation of R.C. 2925.11(A), which provides that "[n]o person shall knowingly obtain,
possess, or use a controlled substance or a controlled substance analog." A person acts
knowingly when, regardless of purpose, "the person is aware that the person's conduct
will probably cause a certain result or will probably be of a certain nature." R.C.
2901.22(B).
{¶ 25} To "possess" means "having control over a thing or substance, but may not
be inferred solely from mere access to the thing or substance through ownership or
occupation of the premises upon which the thing or substance is found." R.C. 2925.01(K).
Possession may be actual or constructive. State v. Lee, 2021-Ohio-2544, ¶ 21 (12th
Dist.). "Constructive possession exists when one is conscious of the presence of the
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object and able to exercise dominion and control over it, even if it is not within one's
immediate physical possession." Id., citing State v. Graves,
2015-Ohio-3936, ¶ 22 (12th
Dist.). "Constructive possession may be proven by circumstantial evidence alone." State
v. Fultz,
2016-Ohio-1486, ¶ 12 (12th Dist.). "Absent a defendant's admission, the
surrounding facts and circumstances, including the defendant's actions, are evidence that
the trier of fact can consider in determining whether the defendant had constructive
possession."
Id. "The discovery of readily accessible drugs in close proximity to the
accused constitutes circumstantial evidence that the accused was in constructive
possession of the drugs." Id. at ¶ 13.
{¶ 26} Bowling argues that the state failed to prove both the knowledge and
possession elements. He contends that the evidence at trial indicates he "experienced a
mental breakdown" and therefore "his behavior does not meet the definition of knowing."
He further contends that the state failed to show he actually or constructively possessed
the drugs as there was no evidence that his fingerprints were found on the bag holding
the drugs and the drugs had been placed outside by Slusher.
{¶ 27} After reviewing the record, we find that Bowling's convictions for aggravated
possession of drugs were supported by sufficient evidence and were not against the
manifest weight of the evidence. The state presented testimony establishing all the
essential elements of aggravated possession of drugs beyond a reasonable doubt,
including the disputed "knowledge" and "possession" elements. Slusher testified she
found drugs sitting on Bowling's bed—the "dried mushrooms" which testing revealed to
be 20.72 grams of psilocybin and what she believed was "liquid marijuana" but testing
revealed to be 1.38 grams of methamphetamine. Bowling was aware of the drugs and
was able to exercise dominion and control over them. When Slusher attempted to remove
the drugs from Bowling's possession, first by flushing the drugs and then by throwing the
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drugs outside the home, Bowling got into a physical altercation with Slusher and fought
to retain his possession of the drugs. Contrary to Bowling's claim, fingerprint evidence
tying him to the drugs recovered from the driveway was not necessary. Slusher's
testimony, as believed by the trier of fact, established that Bowling possessed psilocybin
and methamphetamine. Further, Bowling's actions in trying to keep possession of the
drugs also demonstrates that he acted "knowingly" in his possession of the drugs.
{¶ 28} Bowling claims he was in a "deranged mental state," and suffering from a
mental breakdown such that his behavior does not meet the definition of knowing. We
disagree. Not only did his actions demonstrate that he sought to knowingly retain
possession of his drugs, but his conduct when the officers arrived on scene indicated he
was aware of what was occurring. Bowling's statements to the officers were grounded in
reality. He had sufficient mental awareness to admit to certain actions, like having an
argument with Slusher and to "test[ing] dirty for weed," and to deny other, more
consequential actions, like engaging in a physical altercation with Slusher and claiming
ownership over the drugs found in the driveway. Bowling's mental state did not prevent
him from knowingly possessing psilocybin and methamphetamine.
{¶ 29} Finally, Bowling argues Slusher's testimony was not credible as she was
financially motivated to get him out of her home to lie about the events that occurred on
October 24, 2022. He contends the trial court lost its way when it decided to believe
Slusher's testimony. However, "the trial court, as the trier of fact, is best able to view
witnesses and observe their demeanor, gestures, and voice inflictions in weighing witness
credibility . . . ." State v. Burkhead, 2009-Ohio-4466, ¶ 19 (12th Dist.). The trier of fact
"considers any inconsistencies in the witnesses' testimony and resolves them
accordingly, believing all, part, or none of each witnesses' testimony." State v. Singh,
2022-Ohio-3385, ¶ 67 (12th Dist.). "A conviction is not against the manifest weight of the
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evidence merely because the trier of fact believed the testimony of the state's witnesses."
State v. Marshall, 2024-Ohio-4445, ¶ 52 (12th Dist.). Here, the trial court considered "the
terrible family dynamic" and "convoluted mess" the state and defense witnesses testified
about. The court assessed the witnesses' credibility and considered the 9-1-1 recording.
In doing so, the court found Slusher's testimony credible, stating that "[i]t does not make
sense . . . that Ms. Slusher would make all of this up in order to get [Bowling's] money."
{¶ 30} Based on the evidence presented at trial, the trier of fact was entitled to find
that Bowling knowingly possessed the controlled substances psilocybin and
methamphetamine. Bowling's convictions for aggravated possession of drugs were not
against the manifest weight of the evidence and were supported by sufficient evidence.
Bowling's first assignment of error is, therefore, overruled.
Domestic Violence
{¶ 31} Bowling was also convicted of domestic violence 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." A "family or household member"
includes a "child of the offender" who is residing with the offender. R.C.
2919.25(F)(1)(a)(ii). "Physical harm" means "any injury, illness, or other physiological
impairment, regardless of its gravity or duration." R.C. 2901.01(A)(3).
{¶ 32} Bowling argues the state failed to present evidence that he knowingly
caused or attempted to cause harm to Slusher. Referencing his acquittal on the
aggravated menacing charge, Bowling argues that it "simply makes no sense that the trial
judge could disbelieve . . . part of [Slusher's] testimony [relating to the gun threat] but then
rely upon the remaining portions of the 9-1-1 tape as proof beyond a reasonable doubt of
the other elements of domestic violence."
{¶ 33} As we noted above, a trier of fact is entitled to believe "all, part, or none of
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each witnesses' testimony." Singh, 2022-Ohio-3385 at ¶ 67. Slusher's testimony, as
believed by the trier of fact, was evidence establishing beyond a reasonable doubt that
Bowling knowingly caused physical harm to his daughter when he grabbed her, twisted
her arm, and struck her after she removed the drugs from his bedroom and attempted to
flush the drugs. Slusher indicated that as she was bent over, trying to shield the drugs
from Bowling, he got on her back and started hitting her with a closed fist. Slusher's
testimony was corroborated by the 9-1-1 recording, on which a distraught Slusher can be
heard shouting for Bowling to "get off of [her]." Slusher's testimony that Bowling caused
her physical pain and harm to her arm was also corroborated by Officer Stallard's visual
inspection of Slusher's arm. He testified that he observed "what appeared to be a fairly
fresh injury" to Slusher's arm. He indicated the arm was red, "a little bit swollen," and
"looked like kind of a pressure – almost like a pressure injury or possibly like a squeeze
or pull potentially."
{¶ 34} In finding Bowling guilty of domestic violence, the trial court was entitled to
reject Bowling's defense that he was physically incapable of assaulting his daughter in
the manner she described due to his health problems and recent surgeries. Slusher
testified that Bowling had been walking around without a walker at the time of the incident.
Officer Stallard had observed that Bowling was able to walk on his own. The court was
entitled to credit Slusher's and Officer Stallard's testimony regarding Bowling's physical
abilities.
{¶ 35} Finally, contrary to Bowling's assertions, the fact that the trial court found
that the state had not met its burden of proving aggravated menacing beyond a
reasonable doubt has no bearing on the court's guilty finding for the domestic violence
offense. "Each count in an indictment charges a distinct offense and is independent of
all other counts." State v. Davis, 2011-Ohio-2207, ¶ 37 (12th Dist.). A trier of fact's finding
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on one count is independent of its findings on another count. Here, the trial court found
that the state "met all the elements" of the charge of domestic violence and the record
supports the trial court's finding, beyond a reasonable doubt, that Bowling committed the
offense against Slusher when he grabbed her, twisted her arm, and struck her in the
bathroom of their shared home. Bowling's conviction for domestic violence was not
against the manifest weight of the evidence and was supported by sufficient evidence.
Bowling's second assignment of error is, therefore, overruled.
{¶ 36} Judgment affirmed.
PIPER and M. POWELL, JJ, concur.
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