State v. Breneman , 2012 Ohio 3632 ( 2012 )

[Cite as State v. Breneman, 2012-Ohio-3632.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE )
STATE OF OHIO C.A. No. 11CA0039
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
ANN M. BRENEMAN WAYNE COUNTY MUNICIPAL COURT
COUNTY OF WAYNE, OHIO
Appellant CASE No. CRB-11-04-00483
DECISION AND JOURNAL ENTRY
Dated: August 13, 2012
MOORE, Presiding Judge.
{¶1} Defendant, Ann Breneman, appeals from the judgment of the Wayne County
Municipal Court. We affirm.
I.
{¶2} On March 9, 2011, Bryyton Love contacted police officers alleging that
Breneman had assaulted his girlfriend, Angela Nicholas. Breneman was charged with assault in
violation of R.C. 2903.13. Breneman was also charged with petty theft in violation of R.C.
2913.02(A)(2) for allegedly stealing a can of beer from a store on the same date. Breneman pled
guilty to the petty theft charge, and, after a bench trial, the court found her guilty of the assault
charge. The trial court sentenced her to thirty days of incarceration on each charge, to be served
consecutively. Breneman appealed from the sentencing entry and raises one assignment of error
for our review.
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II.
ASSIGNMENT OF ERROR
[]BRENEMAN’S CONVICTION OF ASS[AU]LT IS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
{¶3} In her sole assignment of error, Breneman argues that her conviction for assault is
against the manifest weight of the evidence. We disagree.
{¶4} When a defendant asserts that her conviction is against 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 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). Here, Breneman was convicted of
assault in violation of R.C. 2903.13(A), which provides, “No person shall knowingly cause or
attempt to cause physical harm to another * * *.”
{¶5} At trial, Love, Nicholas and Sargent Howard Funk testified for the State. Love
testified that on March 9, 2011, he and Nicholas were at home. Just after midnight, while
Nicholas was sleeping on the couch, Breneman, her brother, and her boyfriend, Kyle Bolen,
arrived at the apartment intoxicated and carrying beer bottles. Love was aware that a friend of
his owed money to Bolen for drugs, which Love had agreed to pay. When they entered the
apartment, Bolen said that he was going to take their television. Love thought they were joking,
and he began to look for $40 to pay his friend’s debt. While he was looking for the correct
change, Breneman approached Nicholas, and told her several times not to look at her brother and
then hit her in the head with a beer bottle. Breneman dropped the bottle and then began striking
Nicholas with her hands. Love asked Bolen to intervene, and he said that he could not. Love
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then approached Breneman, and was threatened to back away by her brother. When the tussle
ended, and the women were “locked up,” Love and Bolen left to go to a store to get correct
change to pay the debt, and Breneman and her brother stayed in the apartment. After leaving the
apartment, Love called the police and reported the assault. He then called the individuals at the
apartment to tell them that the police were coming. When Love and Bolen returned to the
apartment, Breneman and her brother had already left.
{¶6} Nicholas testified that, on the night at issue, she was asleep on her couch and was
awakened by knocking at the door. She saw Breneman, Bolen, and another male enter the
apartment. Nicholas heard Breneman screaming about money and threatening to take Nicholas’
television. While she was lying on the couch, Nicholas heard Breneman tell her not to look at
her brother. Nicholas tried to go back to sleep, but Breneman suddenly attacked her, causing a
sharp pain in her head. After a brief struggle, they reached a stalemate. Love and Bolen then left
the apartment to go to a store to get money. As a result of the attack, Nicholas suffered an injury
to her head which required medical attention.
{¶7} Sergeant Howard Funk of the Orrville Police Department testified that he was
dispatched to Nicholas’ apartment in response to a report made by Love. When he arrived,
Nicholas emerged from the apartment, appearing disheveled and overwrought. She told the
officer that individuals who were in her apartment had fled out the back door. Unable to locate
the suspects, the officer returned to speak with Nicholas. While outside, she pointed out a car
that was pulling into the parking lot that she claimed belonged to one of the individuals who was
in her apartment. Another officer blocked the car, and Sergeant Funk went inside the apartment
with Nicholas. There were beer bottles on the floor of the living room, although neither Nicholas
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nor Love appeared intoxicated. Nicholas parted her hair, and the sergeant observed that Nicholas
was bleeding from her head.
{¶8} Bolen testified for the defense. On the night at issue, Love called Bolen and
asked Bolen to take him to the gas station. Bolen arrived alone at Nicholas’ apartment to pick up
Love, who was waiting for him outside. They went to the gas station, and Love was unusually
quiet. Bolen observed Love speaking on his cell phone while he was at the cashier’s counter in
the gas station. When Bolen returned Love to his apartment, Love quickly exited the car and ran
toward the apartment building. Bolen was then stopped by an officer. Bolen maintained that he
went alone to Nicholas’ apartment that night, that he never entered the apartment, and that no
one owed him any money.
{¶9} On appeal, Breneman argues that the testimony of Love and Nicholas was not
credible. In support, she argues that their testimony as to the events of March 9, 2011 was
unbelievable, biased and in contradiction to the testimony of Bolen. However, this Court is
mindful that “[e]valuating the evidence and assessing credibility are primarily for the trier of
fact.” State v. Shue, 97 Ohio App.3d 459, 466 (9th Dist.1994), citing Ostendorf-Morris Co. v.
Slyman, 6 Ohio App.3d 46, 47 (8th Dist.1982) and Crull v. Maple Park Body Shop, 36 Ohio
App.3d 153, 154 (12th Dist.1987). This is because the trier of fact “is best able to view
witnesses and observe their demeanor, gestures and voice inflections, and use these observations
in weighing the credibility of the proffered testimony.” State v. Cook, 9th Dist. No. 21185,
2003-Ohio-727, ¶ 30 quoting Giurbino v. Giurbino, 89 Ohio App.3d 646, 659 (8th Dist.1993).
Further, although the testimony of the witnesses on behalf of the State and the defense present
conflicting versions of events, “[a] conviction is not against the manifest weight because the jury
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chose to credit the State’s version of events.” State v. Peasley, 9th Dist. No. 25062, 2010-Ohio-
4333, ¶ 18.
{¶10} After reviewing the entire record, weighing the inferences and examining the
credibility of witnesses, we cannot say that the trial court clearly lost its way and created a
manifest miscarriage of justice in finding Breneman guilty of assault.
III.
{¶11} Accordingly, Breneman’s sole assignment of error is overruled, and the judgment
of the Wayne County Municipal Court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Wayne County
Municipal Court, County of Wayne, 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.
CARLA MOORE
FOR THE COURT
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DICKINSON, J.
BAIRD, J.
CONCUR.
(Baird, J., retired, of the Ninth District Court of Appeals, sitting by assignment pursuant to
§6(C), Article IV, Constitution.)
APPEARANCES:
MICHAEL J. ASH, Attorney at Law, for Appellant.
DANIEL R. LUTZ, Prosecuting Attorney, for Appellee.