[Cite as State v. Elkins, 2024-Ohio-1314.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

PREBLE COUNTY

STATE OF OHIO,

Appellee,

 - vs -

BILLY J. ELKINS,

Appellant.

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CASE NO. CA2023-02-001

O P I N I O N

4/8/2024

CRIMINAL APPEAL FROM EATON MUNICIPAL COURT

Case No. CRB2200168

Martin P. Votel, Preble County Prosecuting Attorney, and Kirsten Knight, Assistant 

Prosecuting Attorney, for appellee.

Repper-Pagan Law, Ltd., and Christopher J. Pagan, for appellant.

BYRNE, J.

{¶ 1} Billy Elkins appeals from his conviction for domestic violence in the Eaton 

Municipal Court. For the reasons described below, we affirm the municipal court's decision.

I. Factual and Procedural Background

{¶ 2} In April 2022, a Camden, Ohio police officer filed a complaint charging Elkins 

with domestic violence in violation of R.C. 2919.25(A). The complaint alleged that Elkins 
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forcefully grabbed the victim (his wife), leaving a bruise on her right arm.

The matter proceeded to a bench trial. We will summarize the key trial testimony below.

A. State's Case

1. Amanda Elkins' Testimony

{¶ 3} Amanda testified that she lived at 7089 North Main Street ("the home") in 

Camden, Ohio with Elkins, her husband. They had been married since 2019.

{¶ 4} On March 31, 2022, Amanda and Elkins were at the home in the early 

afternoon hours. Elkins was intoxicated. Amanda and Elkins had been arguing because 

she asked him to leave the home. Elkins refused to leave. He began following her around 

the home, cursing at her.

{¶ 5} Amanda went to the home's basement to do laundry. Elkins followed her and 

continued cursing at her and calling her names. While in the basement, Amanda began 

recording Elkins with her phone. He attempted to grab the phone from her and pushed her 

backwards, but she was able to catch her balance.

{¶ 6} Amanda then went upstairs and went into the bathroom. Elkins followed her 

into the bathroom, which Amanda described as very small. Amanda testified that while in 

the bathroom, Elkins grabbed her left arm and pushed her backwards. She fell into the 

bathtub. She got up, and Elkins grabbed her by her right hand and pushed her down again. 

Again, she got up. In total, Elkins pushed her down into the bathtub three times.

{¶ 7} Amanda stated that she suffered injuries resulting from this incident. 

Specifically, she suffered bruising on both arms.

{¶ 8} After the altercation, Amanda called the police, who quickly arrived on scene. 

The responding officer took photographs of her arms while on scene. Amanda identified 

two photographs, admitted at trial, each depicting one of her arms. The photographs depict 

areas of slight redness on the upper side of Amanda's forearms, near her elbow. Amanda 
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estimated that these photographs were taken ten minutes after the altercation. Amanda 

testified that these areas of redness darkened over time into bruises. The bruises lasted 

approximately one month.

2. Lieutenant David Stemp's Testimony

{¶ 9} Lieutenant David Stemp testified that he was an officer of the Camden Police 

Department. On March 31, 2022, he responded to the home in response to a 9-1-1 call. 

When Lieutenant Stemp arrived on scene, he found Amanda very upset and crying. She 

told him that she had been injured. He looked at her injuries and photographed her arms. 

B. Defense Case

1. Billy Elkins' Testimony

{¶ 10} Elkins agreed that he and Amanda were arguing over her desire for him to 

leave the home and his refusal to leave. He agreed that he followed Amanda around the 

basement and continued arguing in the basement, and that he attempted to knock 

Amanda's phone from her hand.

{¶ 11} Elkins confirmed that he followed Amanda as she went into the bathroom, but 

stated that he simply stood in the doorway. Elkins claimed that Amanda then pushed him 

and he pushed her back and she "went back up against the wall."

{¶ 12} Elkins clarified that the only physical contact he initiated was his pushing 

Amanda against the wall. "She pushed me, and then I⎯I pushed back * * *. " He denied 

that Amanda ever fell into the bathtub or entered the bathtub. And he denied grabbing 

Amanda by her arms.

{¶ 13} Elkins agreed he saw redness depicted in the photographs of Amanda's arms, 

but explained its presence by stating that Amanda always had "marks" and "bruises," which 

were the result of her work.

C. Trial Court Decision
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{¶ 14} At the conclusion of the trial, the municipal court indicated it would take the 

matter under advisement and issue a written decision. The court later issued a written 

decision finding Elkins guilty and stating the following relevant findings of fact:

The alleged victim testified that she attempted to leave the 

bathroom but was stopped by the Defendant who grabbed her 

forearms and pushed her three (3) times into the bathtub. Two 

(2) pictures, Plaintiff's Exhibit 1 and 2 were offered as evidence 

which the alleged victim testified reflected the injuries on her 

forearms from being grabbed by the Defendant. The alleged 

victim was able to leave the bathroom and call the police. 

The Defendant testified that as the alleged victim was 

attempting to leave the bathroom, while he was blocking the 

doorway, he pushed her against the wall once. The Defendant 

testified that the alleged victim never fell into the bathtub. The 

Defendant testified that he told the responding Officer that the 

alleged victim had hit him, but then admitted during the trial that 

statement was false.

It is clear to the Court that both the alleged victim and the 

Defendant have embellished their respective stories. The 

alleged victim claims to have been pushed into the bathtub three 

(3) times, yet her injuries are inconsistent with her testimony as 

they are not severe as would be expected. The Defendant 

testified that he only pushed the alleged victim up against the 

wall as she attempted to exit the bathroom, yet she has red 

marks on her arms.

Therefore, the Court finds the Defendant, Billy J. Elkins guilty of 

Domestic Violence, a violation of 2919.25(A), a first-degree 

misdemeanor. In doing so, the Court focused on the totality of 

the circumstances to-wit: the Defendant being intoxicated, 

following the victim around the residence in an attempt to 

continue with their argument, attempting to knock the victim’s 

cell phone from her hand, blocking her in the bathroom, and 

most notably that he pushed the victim against the wall as she 

attempted to exit the bathroom. The Court finds the victim’s 

testimony to be credible as it relates to the Defendant grabbing 

her forearms and causing the red marks reflected in the 

pictures.

{¶ 15} Following the court's decision but before sentencing, Elkins filed a written 

motion for acquittal on the domestic violence charge and asked the court to instead find him 

guilty of disorderly conduct, as a lesser-included offense. The court denied Elkins' motion.
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{¶ 16} The court subsequently issued its sentence, consisting of a 90-day 

suspended jail sentence, a fine, and court costs. The court placed Elkins on one year of 

probation. 

{¶ 17} The record also contains the following form, which appears to be signed by 

Elkins:
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{¶ 18} Elkins appealed, raising two assignments of error, which we will address in 

turn.

II. Law and Analysis

A. Sufficiency of the Evidence

{¶ 19} Elkins' first assignment of error states:

THE TRIAL COURT ERRED BY CONVICTING [ELKINS] OF 

DOMESTIC VIOLENCE UNDER R.C. 2919.25(A).

{¶ 20} In his first assignment of error, Elkins argued that the state submitted 

insufficient evidence as a matter of law to allow a reasonable factfinder to find him guilty of 

the offense of domestic violence. Specifically, Elkins argues that there was insufficient 

evidence presented that he knowingly caused physical harm to Amanda because the 

evidence presented was that he merely grabbed and pushed Amanda.

{¶ 21} 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, 

12th Dist. Butler Nos. CA2010-06-150, CA2010-07-163 thru CA2010-07-167, and CA2010-

07-180, 2011-Ohio-3018, ¶ 10. When reviewing the sufficiency of the evidence underlying 

a conviction, an appellate court examines the evidence to determine whether such 

evidence, if believed, would convince the average mind of the defendant's guilt beyond a 

reasonable doubt. State v. Paul, 12th Dist. Fayette No. CA2011-10-026, 2012-Ohio-3205, 

¶ 9. 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.

{¶ 22} The municipal court found Elkins guilty of domestic violence under R.C. 

2919.25(A), which provides, "No person shall knowingly cause or attempt to cause physical 
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harm to a family or household member."

{¶ 23} Elkins does not dispute that Amanda was a family or household member. We 

therefore confine our review to his argument that the state presented evidence insufficient 

to establish that he had knowledge of causing or attempting to cause physical harm to 

Amanda.

{¶ 24} Regarding the mental state of "knowingly," the Revised Code provides that,

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. A person 

has knowledge of circumstances when the person is aware that 

such circumstances probably exist. When knowledge of the 

existence of a particular fact is an element of an offense, such 

knowledge is established if a person subjectively believes that 

there is a high probability of its existence and fails to make 

inquiry or acts with a conscious purpose to avoid learning the 

fact.

R.C. 2901.22(B). Stated otherwise, to demonstrate knowledge, the evidence must show 

that the defendant was "subjectively aware that a specified result is probable." State v. 

Berry, 12th Dist. Warren No. CA2006-11-133, 2007-Ohio-7082, ¶ 12. That is, it is the 

defendant's mind and perception that are measured, not an objective reasonable 

expectation. Id. "This flows from the theme in Ohio law in which a person is presumed to 

intend the probable consequences of his voluntary acts." Id.

{¶ 25} In this case, the "specified result" the state must have demonstrated that 

Elkins had knowledge of was "physical harm." As used in the Revised Code, "physical harm 

to persons" means "any injury, illness, or other physiological impairment, regardless of its 

gravity or duration." R.C. 2901.01(A)(3).

{¶ 26} Amanda testified that Elkins grabbed her left arm and her right hand and 

pushed her down three times, causing her to fall into the bathtub each time. She stated 

that she suffered injuries from this contact with Elkins and identified those injuries as the 
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red marks on her arms, which were depicted in the state's photographs. Amanda stated 

that the red marks eventually darkened and bruised and took approximately one month to 

fade. 

{¶ 27} In addition, the court heard testimony that Elkins was acting belligerently 

before the physical altercation, cursing his wife and calling her names. The court also heard 

that he attempted to physically knock a phone out of Amanda's hands.

{¶ 28} The court stated it found some of Amanda's testimony to be "embellished," 

including her testimony that Elkins pushed her into the bathtub three times. However, the 

court concluded that Elkins did push Amanda against the wall and specifically found 

Amanda's testimony to be credible "as it relates to [Elkins] grabbing [Amanda's] forearms 

and causing the red marks reflected in the pictures." The court had evidence before it that 

Elkins grabbed Amanda with sufficient force to leave visible marks on her arms, and which 

were significant enough to bruise. The evidence suggested that Elkins grabbed and pushed 

Amanda when he was intoxicated, and in an agitated state, which had been ongoing for 

some time. Under these circumstances, the evidence indicated that Elkins would be 

subjectively aware that if he grabbed and pushed Amanda with such force, his actions would 

probably result in injury, including potentially bruising to Amanda's arms. Redness and 

bruising resulting from a grab is sufficient to demonstrate physical harm for purposes of 

R.C. 2901.01(A)(3). State v. Torman, 3d Dist. Putnam No. 12-15-10, 2016-Ohio-748, ¶ 31-

32 (physical harm found where defendant grabbed and squeezed the victim's jaw, resulting 

in "a slight red mark" and "a little bruising"); State v. Reese, 8th Dist. Cuyahoga No. 85902, 

2005-Ohio-5724, ¶ 12 ("Bruising constitutes 'physical harm'"). See State v. Ford, 6th Dist. 

Lucas Nos. {48}L-20-1054 and {48}L-20-1112, 2021-Ohio-3058, ¶ 47. Elkins' sufficiency 

argument is without merit.

{¶ 29} Elkins alternatively contends that if the evidence was insufficient to find him 
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guilty of domestic violence, then the court erred by not finding him guilty of the lesserincluded offense of disorderly conduct, as he had requested post-trial.1

 However, because 

we have found that the evidence was sufficient to find Elkins guilty of domestic violence, 

Elkins' disorderly conduct argument is moot. 

{¶ 30} We overrule Elkins' first assignment of error.

B. Constitutionality of 18 U.S.C. 922(g)(9)

{¶ 31} Elkins second assignment of error states:

THE BRADY FIREARM DISQUALIFICATION IS 

UNCONSTITUTIONAL AS APPLIED HERE.

{¶ 32} Elkins asks this court to find that a federal statute, 18 U.S.C. 922(g)(9), 

unconstitutionally infringes upon his constitutional rights under the Second and the 

Fourteenth Amendments to the United States Constitution. The statute states:

It shall be unlawful for any person * * * who has been convicted in any court 

of a misdemeanor crime of domestic violence * * * to ship or transport in 

interstate or foreign commerce, or possess in or affecting commerce, any 

firearm or ammunition; or to receive any firearm or ammunition which has 

been shipped or transported in interstate or foreign commerce.

Elkins argues that this federal statute unconstitutionally burdens his right to own and 

possess firearms because the statute is presumptively invalid under the United States 

Supreme Court's current firearms jurisprudence. Elkins primarily rests this argument on 

New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1, 24, 142 S.Ct. 2111 (2022), 

in which the United States Supreme Court held that, "[w]hen the Second Amendment's plain 

text covers an individual's conduct, the Constitution presumptively protects that conduct. 

The government must then justify its regulation by demonstrating that it is consistent with 

the Nation's historical tradition of firearm regulation." Id. at 24. Elkins argues that the state 

has failed to overcome the presumption referenced in Bruen with respect to 18 U.S.C. 

1. Elkins did not assign a separate error concerning this argument.
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922(g)(9).

{¶ 33} Elkins characterizes his argument as an as-applied challenge to the 

constitutionality of the federal statute. In an as-applied challenge, the challenger contends 

that application of the statute in the particular context in which he has acted, or in which he 

proposes to act, is unconstitutional. State v. Carrick, 131 Ohio St.3d 340, 2012-Ohio-608, 

¶ 16. An as-applied challenge contends that the statute is unconstitutional as applied to the 

challenger's activity, even though the statute may be capable of valid application to others. 

State v. Worst, 12th Dist. Butler No. CA2004-10-270, 2005-Ohio-6550, ¶ 42. Thus, an asapplied challenge focuses on the particular application of the statute. Carrick at ¶ 16.

{¶ 34} However, prior to considering Elkins' argument, we must note that before the 

trial court, Elkins only referenced 18 U.S.C. 922(g)(9) once, without citation, when his 

counsel wrote in his motion for acquittal that "the conviction of the lesser offense [of 

disorderly conduct] would not constitute a Brady disqualification of Elkins' gun rights." But 

Elkins only made this statement regarding the law as a matter of fact; Elkins failed to object 

in any way or to make any argument on constitutional or any other grounds regarding 18 

U.S.C. 922(g)(9) before the trial court. It is well established that "the constitutionality of a 

statute must generally be raised at the first opportunity and, in a criminal prosecution, this 

means in the trial court." State v. Awan, 22 Ohio St.3d 120, 122 (1986). Therefore, an 

appellant's "'[f]ailure to raise the issue of the constitutionality of a statute or its application 

at the trial court level generally constitutes waiver of that issue and need not be heard for 

the first time on appeal.'" State v. Myers, 12th Dist. Madison No. CA2012-12-027, 2014-

Ohio-3384, ¶ 12, quoting State v. Golden, 10th Dist. Franklin No. 13AP-927, 2014-Ohio2148, ¶ 11. Accord Awan at 122.

{¶ 35} However, "[t]he waiver doctrine stated in Awan is discretionary, and an 

appellate court may review claims of defects affecting substantial rights for plain error, 
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despite an appellant's failure to bring such claims to the attention of the trial court." State 

v. Fuell, 12th Dist. Clermont No. CA2020-02-008, 2021-Ohio-1627, ¶ 70, citing In re M.D., 

38 Ohio St.3d 149 (1988); Crim.R. 52(B). In Fuell we explained:

"Plain errors or defects affecting substantial rights may be 

noticed although they were not brought to the attention of the 

court." Crim.R. 52(B). Crim.R. 52(B) places three limitations on 

a reviewing court's decision to correct an error not raised before 

the trial court. State v. Barnes, 94 Ohio St.3d 21, 27 (2002). 

First, an error, "i.e., a deviation from a legal rule," must have 

occurred. Id., citing State v. Hill, 92 Ohio St.3d 191, 200 (2001), 

in turn citing United States v. Olano, 507 U.S. 725, 732, 113 

S.Ct. 1770 (1993). Second, the error complained of must be 

plain, i.e., it must be "an 'obvious' defect in the * * * 

proceedings." Id., quoting State v. Sanders, 92 Ohio St.3d 245, 

257 (2001), in turn citing State v. Keith, 79 Ohio St.3d 514, 518 

(1997). Third, the error must have affected "substantial rights." 

State v. Martin,154 Ohio St.3d 513, 2018-Ohio-3226, ¶ 28.

As just stated, plain error must be "plain." Barnes at 28 ("The 

lack of a definitive pronouncement from this court and the 

disagreement among the lower courts preclude us from finding 

plain error"). "[I]f a forfeited error is not plain, a reviewing court 

need not examine whether the defect affects a defendant's 

substantial rights; the lack of a 'plain' error within the meaning 

of Crim.R. 52(B) ends the inquiry and prevents recognition of 

the defect." Id. In Barnes, the Ohio Supreme Court held that a 

court of appeals erred when it applied plain error analysis when 

the putative error was not actually "plain." Id.

Fuell at ¶ 70-71.

{¶ 36} Elkins has not demonstrated plain error on the part of the trial court in 

conjunction with the alleged "application" of 18 U.S.C. 922(g)(9). While Elkins argues that 

18 U.S.C. 922(g)(9) is unconstitutional, the trial court in this case did not bar Elkins from 

possessing or owning firearms pursuant to 18 U.S.C. 922(g)(9) and did not otherwise 

impose any firearms prohibition associated with 18 U.SC. 922(g)(9). At most, the trial court 

followed the requirements of R.C. 2943.033, which provides that prior to accepting a guilty 

plea or plea of no contest to a misdemeanor offense of violence, the court shall inform the 

defendant personally or in writing that under 18 U.S.C. 922(g)(9) "it may be unlawful for the 
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person to ship, transport, purchase, or possess a firearm or ammunition as a result of any 

conviction for a misdemeanor offense of violence." (Emphasis added.) R.C. 2943.033(C). 

That is, the purpose of the form is to inform the defendant of the potential effect of 18 U.S.C. 

922(g)(9) if the defendant enters a plea of guilty or no contest to a misdemeanor offense of 

violence.2

{¶ 37} Elkins does not argue that the court violated his constitutional rights by 

providing him with this notice. The notice was an accurate statement of the law at the time 

it was provided to him, as 18 U.S.C. 922(g)(9) had not then been found unconstitutional,

and upon our review has still not been held unconstitutional by any court. And our record 

does not indicate one way or the other whether Elkins has had any rights deprived based 

on the application of 18 U.S.C. 922(g)(9) to his individual case. Again, all the municipal 

court did in this case was provide the notice; the court did not actually apply 18 U.S.C. 

922(g)(9) or impose any restriction on Elkins pursuant to that statute.

{¶ 38} In essence, Elkins is asking this court for a prospective ruling that if 18 U.S.C. 

922(g)(9) is applied to him in the future, as a result of this conviction, and if that application 

results in a deprivation of his constitutional rights, that such action will be unconstitutional 

as-applied. But because there are no facts that suggest 18 U.S.C. 922(g)(9) has been 

applied to him, this issue it not ripe for appellate review in the context of this direct appeal 

from Elkins' conviction. See State v. Nutter, 12th Dist. Brown No. CA2008-10-009, 2009-

Ohio-2964, ¶ 12 ("Such events have not occurred, and might not occur. As a result, we find 

appellant's arguments as to this issue are not ripe for review at this time"). This is 

particularly true here where Elkins made no argument whatsoever regarding the 

constitutionality of 18 U.S.C. 922(g)(9) before the trial court. Perhaps Elkins could pursue 

2. We note that Elkins did not enter a plea of guilty or no contest in this case.
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his arguments regarding the constitutionality of 18 U.S.C. 922(g)(9) in some other 

proceeding, but he did not do so in this case. In these circumstances we find Elkins waived 

his constitutional arguments and we do not find plain error. See United States v. Freeman,

5th Cir. No. 23-10647, 2024 WL 885124 (Mar. 1, 2024) (finding defendant waived his 

argument that 18 U.S.C. 922[g][1] is unconstitutional pursuant to Bruen by failing to raise 

that argument before the trial court, and declining to find plain error). 

{¶ 39} We overrule Elkins' second assignment of error.

{¶ 40} Judgment affirmed.

S. POWELL, P.J., and M. POWELL, J., concur.