State v. Pedro , 2012 Ohio 3674 ( 2012 )

[Cite as State v. Pedro, 2012-Ohio-3674.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
)
PLAINTIFF-APPELLEE, )
)
V. ) CASE NO. 11-MA-128
)
PAUL MICHAEL PEDRO, ) OPINION
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Mahoning County
Court #4, Mahoning County, Ohio
Case No. 11CRB410
JUDGMENT: Affirmed
APPEARANCES:
For Plaintiff-Appellee Paul Gains
Prosecutor
Ralph M. Rivera
Assistant Prosecutor
21 W. Boardman St., 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant Atty. Gregg A. Rossi
26 Market St, 8th Floor
Huntington Bank Building
P.O. Box 6045
Youngstown, Ohio 44501
JUDGES:
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Dated: July 30, 2012
[Cite as State v. Pedro, 2012-Ohio-3674.]
DONOFRIO, J.
{¶1} Defendant-appellant, Michael Pedro, appeals from a Mahoning County
Court #4 judgment convicting him of domestic violence following a bench trial.
{¶2} On May 13, 2011, Amanda Fincham had been living with appellant for
approximately two weeks at his parents’ home in North Jackson. The two stayed in a
separate part of the house from appellant’s parents, in what is commonly known as a
mother-in-law’s suite.
{¶3} According to Fincham, she was lying on the bed talking to a friend on
her cell phone. Appellant asked her whom she was talking to and when he did not
like her answer, he got on top of her chest and hit her in the face several times.
Appellant then picked her up by the shirt and the throat and threw her against the
wall.
{¶4} According to appellant, he became angry with Fincham because she
had been talking to other men. He confronted her about this when she was lying on
the bed talking on her cell phone. Appellant then told Fincham that she was to leave
his house and she refused. He then began to pack her things while she beat on his
back. Appellant then tried to forcefully remove Fincham from his house because she
would not leave.
{¶5} Appellant and Fincham both went outside. Fincham got into her car.
Appellant’s father and Fincham both called the police. Corporal John Lyons of the
Jackson Township Police Department responded to the calls. He listened to both
Fincham’s and appellant’s version of what had transpired and subsequently arrested
appellant.
{¶6} As a result of the incident, appellant was charged with domestic
violence, a first-degree misdemeanor in violation of R.C. 2919.25(A).
{¶7} The matter proceeded to a bench trial where the court found him guilty
as charged. The court then sentenced appellant to 180 days in jail, 175 suspended;
a $500 fine, plus costs; and 12 months of community control.
{¶8} Appellant filed a timely notice of appeal on August 24, 2011. Upon
appellant’s motion, the trial court stayed the execution of his sentence pending this
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appeal.
{¶9} Appellant now raises a single assignment of error that states:
THE TRIAL COURT’S FINDING THAT APPELLANT,
MICHAEL PEDRO, WAS GUILTY OF DOMESTIC
VIOLENCE IN VIOLATION OF REVISED CODE 2919.25
IS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE AND MUST BE REVERSED.
{¶10} Appellant argues that the court’s finding of guilty was against the
manifest weight of the evidence.
{¶11} In determining whether a verdict is against the manifest weight of the
evidence, an appellate court must review the entire record, weigh the evidence and
all reasonable inferences and determine whether, in resolving conflicts in the
evidence, the fact finder 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.
Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541(1997). “Weight of the evidence
concerns ‘the inclination of the greater amount of credible evidence, offered in a trial,
to support one side of the issue rather than the other.’” Id. (Emphasis sic.) In making
its determination, a reviewing court is not required to view the evidence in a light
most favorable to the prosecution but may consider and weigh all of the evidence
produced at trial. Id. at 390.
{¶12} Yet, granting a new trial is only appropriate in extraordinary cases
where the evidence weighs heavily against the conviction. State v. Martin, 20 Ohio
App.3d 172, 175, 485 N.E.2d 717 (1983). This is because determinations of witness
credibility, conflicting testimony, and evidence weight are primarily for the trier of the
facts who sits in the best position to judge the weight of the evidence and the
witnesses' credibility by observing their gestures, voice inflections, and demeanor.
State v. Rouse, 7th Dist. No. 04-BE-53, 2005-Ohio-6328, ¶49, citing State v. Hill, 75
Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996); State v. DeHass, 10 Ohio St.2d 230,
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227 N.E.2d 212 (1967), paragraph one of the syllabus. Thus, “[w]hen there exist two
fairly reasonable views of the evidence or two conflicting versions of events, neither
of which is unbelievable, it is not our province to choose which one we believe.”
State v. Dyke, 7th Dist. No. 99-CA-149, 2002-Ohio-1152.
{¶13} The court convicted appellant of violating R.C. 2919.25(A), which
provides: “No person shall knowingly cause or attempt to cause physical harm to a
family or household member.” A person acts knowingly if he is aware that his
conduct will probably cause a certain result or be of a certain nature, regardless of
his purpose. R.C. 2901.22(B). “Physical harm to persons” includes “any injury * * *
regardless of its gravity or duration.” R.C. 2901.01(A)(3). A “family or household
member” includes “a person living as a spouse” with the offender. R.C.
2919.25(F)(1)(a)(i). A “person living as a spouse” includes a person who is
cohabitating with the offender. R.C. 2919.25(F)(2).
{¶14} We must evaluate the testimony presented at trial to determine whether
the trial court’s finding of guilt was against the manifest weight of the evidence.
{¶15} Fincham testified first. She stated that on May 13, 2011, she had been
living with appellant at his residence for one to two weeks. (Tr. 4, 14). That day,
Fincham testified, they were in the living room watching NASCAR and the two got
into an argument because she did not like NASCAR. (Tr. 9). Fincham testified that
she then went to the bedroom and called her friend. (Tr. 9). She was talking on the
phone to her friend when appellant walked into the bedroom and asked who she was
talking to. (Tr. 5). Fincham stated that appellant did not like her answer so he got on
top of her chest and punched her in the face. (Tr. 5-6). She testified that her face
swelled and some of her teeth began to bleed. (Tr. 8). She stated that she asked
him to stop but that appellant then picked her up by her shirt and her throat and threw
her against the wall. (Tr. 7). This resulted in her shirt being torn. (Tr. 7). Fincham
stated that she went outside and called the police from her car. (Tr. 11, 20). She
also testified that appellant did not tell her that she had to leave his house during this
incident. (Tr. 17). It was not until later, she stated, that he told her to leave. (Tr. 17).
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{¶16} Cpl. Lyons testified next. He stated that he responded to the scene and
was met by Fincham. (Tr. 29). He stated that Fincham was distraught, crying, and
her shirt was ripped. (Tr. 29-30). Cpl. Lyons took several photographs of Fincham.
(Tr. 30-31; Ex. A). The photographs depicted a red mark and a scratch on Fincham’s
neck, a bruise on her thigh, and her ripped tee-shirt. (Tr. 30-33; Ex. A). Another
photograph was meant to show a hand mark that Cpl. Lyons observed on Fincham’s
arm. (Tr. 31). However, the mark was not visible in the photograph. (Tr. 31; Ex. A).
Cpl. Lyons testified that Fincham’s injuries were consistent with what she told him
appellant had done to her. (Tr. 34).
{¶17} Cpl. Lyons also testified that he spoke with appellant at the scene. (Tr.
39-40). Appellant told him that Fincham was hitting him and that he defended
himself. (Tr. 40-41). Cpl. Lyons did not observe any injuries on appellant. (Tr. 44).
Additionally, Cpl. Lyons stated that appellant’s father told him that he saw Fincham
hitting appellant. (Tr. 47).
{¶18} James Pedro, appellant’s father, testified in appellant’s defense. He
stated that on the day in question, he heard arguing coming from appellant’s side of
the house. (Tr. 51). Pedro stated that he went to that part of the house and saw
Fincham beating appellant on the back while appellant was picking things up from
the bed. (Tr. 51). Pedro heard appellant say that Fincham was leaving. (Tr. 53).
Pedro stated that he called the police because he “didn’t want anything to get
heated.” (Tr. 53). He further stated that he heard Fincham make a call from her car
where she stated, “he’s beating me now.” (Tr. 53). Pedro testified that he never saw
appellant strike Fincham. (Tr. 54).
{¶19} Finally, appellant testified. He stated that on the day in question, he
had just found out that Fincham had been talking to other men. (Tr. 65). Appellant
stated that he went into the bedroom to confront Fincham about this and told her that
she could no longer live with him “[a]nd that’s when just it all went loose.” (Tr. 65).
Appellant stated that he got a blanket and started throwing all of Fincham’s
belongings onto it to pack them up. (Tr. 66). In the meantime, he testified that she
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was pleading with him not to make her leave and hitting him on the back. (Tr. 66,
71). Appellant stated that Fincham crawled under the bed, went up in the attic, and
threatened to cut her wrists all in an attempt to not leave his house. (Tr. 67).
Appellant testified that he tried to pick Fincham up to get her out of the house. (Tr.
67). But he stated that he did not strike her, hit her, or throw her into the wall. (Tr.
69). Appellant further stated that he grabbed Fincham’s shirt at one point to stop her
from falling. (Tr. 69). Appellant stated that once he gathered Fincham’s belongings,
he took them out to her car. (Tr. 72).
{¶20} Appellant compares this case to that of State v. Kartman, 7th Dist. No.
01-BA-65, 2002-Ohio-5189, where this court reversed the appellant’s conviction for
domestic violence. In Kartman, a park security officer first testified that he witnessed
the appellant beating his girlfriend and that she had visible injuries. However, he
later changed his testimony stating that he assumed the appellant was beating his
girlfriend from their positions and that she did not have any visible injuries but was
only red in the face. Additionally, the victim testified that she was drunk, angry, and
violent and the appellant was trying to pull her out of his truck. She thought she was
kicking the appellant. We noted there were no witnesses to the alleged beating and
the alleged victim requested that the appellant not be charged. We further noted that
while the security guard stated he had been told by numerous witnesses that the
appellant was beating his girlfriend, he did not take statements from any of these
witnesses and none of these witnesses were called to testify. In light of these
considerations, we found the trial court clearly lost its way in finding the appellant
guilty of domestic violence.
{¶21} Appellant claims that like Kartman, the only evidence of physical injury
was photographs of red marks and alleged scratches on Fincham’s neck.
Additionally, appellant contends the evidence in this case, as in Kartman, was that he
was attempting to restrain the alleged victim to prevent her from hurting herself,
hurting him, or damaging his property.
{¶22} The present case is distinguishable from Kartman. Firstly, in Kartman,
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there was no witness who testified that the appellant hit the alleged victim. But in this
case, Fincham testified that appellant punched her in the face and threw her against
the wall. Secondly, the park security officer in Kartman, who was one of the main
witnesses, recanted his testimony that he saw the appellant beating the alleged
victim and that he observed visible injuries on the alleged victim. Thus, his testimony
could not have been very credible. But in this case, Cpl. Lyons testified as to
Fincham’s injuries and the state introduced photographs to further support the
testimony. Given these differences between the two cases, Kartman does not
mandate a finding in this case that appellant’s conviction is against the manifest
weight of the evidence.
{¶23} Appellant next argues that his testimony that he never struck Fincham
supports his position. And he points out that the red marks, scratches, and ripped
tee-shirt that Cpl. Lyons testified to were all consistent with his version of the events
on the day in question. Moreover, appellant asserts that Fincham’s testimony was
not credible. He notes that his father testified that he saw Fincham call the police
while she was locked in her car. Yet when Fincham called the police, she stated that
she was being beaten at that moment.
{¶24} Although an appellate court is permitted to independently weigh the
credibility of the witnesses when determining whether a conviction is against the
manifest weight of the evidence, great deference must be given to the fact finder's
determination of witnesses' credibility. State v. Wright, 10th Dist. No. 03AP-470,
2004-Ohio-677, ¶11. The policy underlying this presumption is that the trier of fact is
in the best position to view the witnesses and observe their demeanor, gestures, and
voice inflections, and use these observations in weighing the credibility of the
proffered testimony. Id.{¶25} This case, like many domestic violence cases, presented the trial court
with he-said, she-said testimony. The trial court simply found Fincham’s testimony
was more credible than appellant’s testimony. And while the red marks, scratches,
and ripped tee-shirt may have been consistent with appellant’s version of the events,
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it was also consistent with Fincham’s version of the events.
{¶26} Appellant next argues that once he told Fincham to move out, she was
required to leave the premises. He claims that he was entitled to use reasonable
force to eject Fincham, who was now a trespasser, from his home.
{¶27} A property owner may eject a trespasser by using reasonable force
after the trespasser has received notice to depart but fails to do so within a
reasonable time. State v. White, 2d Dist. No. 23816, 2010-Ohio-4537, ¶35, citing
State v. Childers, 133 Ohio St. 508, 516, 14 N.E.2d 767 (1938). What constitutes
reasonable force to eject is a question for the trier of fact. State v. Ashworth, 11th
Dist. No. 99-P-0094, 2001 WL 180225, *5, fn. 4 (Feb. 26, 2001), citing Childers, at
515. The right to use reasonable force to eject a trespasser can be a defense to
assault. State v. Preston, 12th Dist. No. CA 99-02-028, 1999 WL 740420, *2 (Sept.
20, 1999).
{¶28} Because the trial court found Fincham to be the more credible witness,
it likely believed Fincham’s testimony that appellant did not tell her to get out of the
house until after he assaulted her. Furthermore, the trial court also could have likely
found that punching someone and throwing them against a wall is not “reasonable”
force to use to eject that person.
{¶29} Finally, appellant argues that he did not “knowingly” cause physical
injury to Fincham, within the meaning of the domestic violence statute because his
conduct in grabbing Fincham’s arm and trying to restrain her was not conduct that he
was aware would cause her physical injury.
{¶30} As discussed above, the trial court found Fincham’s testimony to be
more credible than appellant’s testimony. And Fincham testified that appellant
punched her in the face and threw her against a wall. Appellant must have been
aware that punching a person and throwing that person against a wall would
probably cause that person physical injury, thus satisfying the element of knowingly.
{¶31} Accordingly, appellant’s sole assignment of error is without merit.
{¶32} For the reasons stated above, the trial court’s judgment is hereby
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affirmed.
Waite, P.J., concurs.
DeGenaro, J., concurs.