[Cite as State v. Vanover , 2021-Ohio-3172.]



### IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT GEAUG A COUNT Y

STATE OF OHIO, Plaintiff-Appellee,

- v - JOANNE SALVI VANOVER, Defendant-Appellant. CASE NO. 2020-G-0268

Criminal Appeal from the Chardon Municipal Court

Trial Court No. 2020 CRB 00090

O P I N I O N Decided: September 13, 2021 Jud g ment: Affirmed

Benjamin G. Chojnacki, City of Chardon Law Director, 1301 East Ninth Street, Suite 3500, Cleveland, OH 44114, and Steven E. Patton , Assistant Police Prosecutor, Chardon Municipal Court, 111 Water Street, Chardon, OH 44024 (F or PlaintiffAppellee )

. Jay F. Crook, Jay F. Crook, Attorney at Law, LLC, 30601 Euclid Avenue, Wickli ffe, OH 44092 ( For Defendant-Appellant )

.

MATT LYNCH, J. {¶1} Defendant-appellant, Joanne Salvi Vanover, appeals her convicti ons for Domestic Violence and Disorderly Conduct. For the following re asons, we affirm the

decision of the court below. {¶2} On February 10, 2020, Complaints were filed in the Chardon Muni cipal Court charging Joanne with Domestic Violence, a first-degree mi sdemeanor in violation of R.C. 2919.25(A), and Disorderly Conduct, a minor misdemeanor in violation of R.C.2

Case No. 2020-G-0268 2917.11(A)(1). {¶3} On July 2, 2020, a bench trial was held. {¶4} Michael Vanover testified for the prosecution that, on February 9, 2020, he was married to and residing with Joanne at 15215 Overture Drive in Newbury, Ohio. At about noon, Michael and Joanne began to argue and Joanne told h im to leave. For the next hour and a half Michael packed and did laundry. {¶5} At some point, Michael was in the kitchen putting on his shoes with his cell phone on the table. Joanne “rushed” into him, knocked chairs o ver, and tried to grab the phone. Michael tried leaving the residence but was blocked by Joanne. Michael called 911 while Joanne continued to demand the phone. Holding the ph one out of her reach, Michael moved toward a door leading to the garage. He testifie d: “At this point, she pushes me up against the door * * *. She then grabbed and rake d her nails on my arm. She also grabbed my arm and bit it. I yanked my arm out of her mouth, and also, while she had me pinned up, she was punching me in the ribs.” {¶6} Michael then left the residence and waited for a sheriff’s depu ty to arrive. {¶7} Michael described himself as 5’10” and weighing about 240 pound s and

Joanne as 5’2”. {¶8} Pictures of Michael’s arms were admitted into evidence showing red marks which Michael claimed were scratches, and of Joanne’s thigh sho wing a bruise. Mic hael denied doing anything to Joanne that would have caused bruising

. {¶9} Deputy Evan Reinhart of the Geauga County Sheriff’s Department was called as a witness for both the prosecution and the defense. He testified that he investigated the February 9 incident at the Vanover residence. Deputy Reinhart spoke3

Case No. 2020-G-0268 with the Vanovers and took the pictures of Michael’s arms. Joa nne told Deputy Reinhart that they had been having an argument about bills, that she wan ted the cell phone and

she wanted him to leave. He asked Joanne about the scratches o n Michael’s arm and “she said he would have been scratched while she was trying to get the phone out of his * * * pocket.” Joanne also told Deputy Reinhart that Michael h ad pushed her during the

incident. {¶10} Joanne testified on her own behalf. On the morning of February 9, 2020, she was doing laundry while Michael stayed in bed. They began to argue because Michael was not paying his shar e of the bills and she told him to leave the house which she owned. While she was gathering his clothes from the la undry room, Michael shoved her, causing her to fall and bruise her leg. {¶11} Joanne then followed Michael to the kitchen and tried to take t he cell phone from him since the phone had been purchased in her name. Micha el held the phone away from her and she was not able to grab it. {¶12} Joanne next called her sister and told her to come to the house because

Michael was “out of control” an d was “going to kill [her] with those damn guns of his.” She also called 911 and advised that Michael had guns in the house. {¶13} At the conclusion of trial, the municipal court found Joanne gu ilty of Domestic Violence and Disorderly Conduct. {¶14} On September 25, 2020, the municipal court issued a Sentencing Judgment Entry, ordering Joanne to pay a fine of $250 plus costs, to ser ve a 180-day jail sentence with 150 days suspended and 75 days of electronically monitored house arrest and to be placed on two years of probation for Domestic Violence, and a f ine of $0 for Disorderly4

Case No. 2020-G-0268 Conduct. {¶15} On October 9, 2020, Joanne filed a Notice of Appeal. On appeal , she raises the following assignments of error: {¶16} “[1.] The trial court committed reversible error by applying th e wrong standard in finding defendant-appellant guilty of domestic viol ence without finding that she knowingly caused or attempted to cause physical harm.” {¶17} “[2.] The finding of guilt on the counts of domestic violence a nd disorderly conduct was against the manifest weight of the evidence.” {¶18} Joanne was convicted of Domestic Violence and Disorderly Conduc t. The elements of Domestic Violence are: “No person shall knowingly c ause or attempt to cause physical harm to a family or household member.” R.C. 2919.25(A ). The elements of Disorderly Conduct are: “No person shall recklessly cause incon venience, annoyance, or alarm to another by * * * [e]ngaging in fighting, in threatenin g harm to persons or property, or in violent or turbulent behavior.” R.C. 2917.11(A)(1). {¶19} In the first assignment of error, Joanne argues the municipal c ourt applied the wrong legal standard in finding her guilty of Domestic Viol ence: “There is nothing in the [court’s] recitation where Ms. Vanover is found guilty of d omestic violence that indicates that the trial court found that she knowingly caused or attempted to cause physical harm.” Appellant’s brief at 7. In the recitation in question, the court stated: “Credibility certainly is at issue here. The Court finds that [in] the photos in State’s Exhibits 2 through 4 * * * there are red marks [on Michael’s arms]. Reg ardless of what or how they got there, the testimony was that again, by her own admiss ion, either that she, that she might have scratched him when she grabbed for the phone, an d it’s consistent with5 Case No. 2020-G-0268 Mr. Vanover’s testimony.” {¶20} “A reviewing court must presume that the trial court applied th e law correctly.” State v. Coombs , 18 Ohio St.3d 123, 125, 480 N.E.2d 414 (1985). “This presumption is violated when the record clearly demonstrates th at the trial court did not

understand the law.” Ashtabula v. Smith , 11th Dist. Ashtabula No. 2000-A-0029, 2001 WL 530466, *2. In the context of a bench trial, a reviewing co urt will “presume the [lower] court employed the correct standard of law, unless the record c learly demonstrates

otherwise.” State v. Amerson , 8th Dist. Cuyahoga No. 78235, 2001 WL 755902, *4. {¶21} Superficially, the municipal court’s statement “regardless of w hat or how [the red marks] got there” could indicate an indifference to th e element of the crime that Joanne knowingly caused the red marks. Such an interpretation of the court’s remarks, however, is unwarranted. {¶22} First of all, the municipal court, in pronouncing the finding o f guilt, correctly stated the elements of the offense: “No person shall knowingly cause or attempt to cause physical harm to a family or household member. The Court finds Miss Vanover guilty of Domestic Violence.” It would take a more unequivocal statement than the one cited by Joanne for this court to conclude that the municipal court conv icted her without regard to whether she was the actual cause of Michael’s injuries. {¶23} Secondly, the municipal court made this statement in the contex t of discussing the credibility of the witnesses. The court’s inten tion appeared to be that the red marks, the physical injury element of the offense, were con firmed by both Michael’s and Joanne’s testimony. The court referred to Joanne’s stateme nt to Deputy Reinhart that Michael “would have been scratched while she was trying to get the phone out of his6

Case No. 2020-G-0268 * * * pocket.” Joanne testified that she “was trying to take t he phone” but “[didn’t] know if [she] scratched him.” If the only evi dence on this issue was Joanne’s testimony, it would be arguable whether the knowingly element of the offense had be en satisfied. Significantly, however, the court did not credit Joanne’s testi mony. Rather, it found that “Miss Vanover was not credible.” As discussed below, Michael’s testimony did support a finding that Joanne knowingly caused the injury and it is on hi s testimony that the findings of guilt may be supported. {¶24} Contrary to Joanne’s position, the record before this court doe s not clearly demonstrate that the municipal court applied the wrong legal st andard in finding her guilty

of Domestic Violence. {¶25} Under this assignment of error, Joanne urges this court to appl y State v.

Hancock , 1st Dist. Hamilton No. C-030459, 2004-Ohio-1492, for the prop osition “that if there was any physical contact made [in the present case], it w as not intentional or knowingly, and that it was caused by the actions of Mr. Vanover in wrestling over the phone.” Reply brief at 3. We find the facts of Hancock to be distinguishable and without application herein. In Hancock , unlike the present case, both the putative victim and the defendant testified that “they had been struggling over the tel ephone when th e telephone struck [the putative victim].” Id. at ¶ 45. Neither party claimed that the defendant did anything specific to cause the phone to strike the putative vic tim (contrary to her original statement to police). Accordingly, there was no “substantive e vidence” that the defendant had knowingly caused the injuries. Id. at ¶ 47. {¶26} In the present case, Michael testified that she “raked her nail s on [his] arm,” “grabbed [his] arm and bit it.” This satisfies the element of the offense that Joanne acted7 Case No. 2020-G-0268 knowingly. {¶27} “A person acts knowingly, regardless of purpose, when the perso n 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). This standard of culpabilit y or mens rea “does not require the defendant to have a specific intent to cause a cert ain result.” State v. Stover , 8th Dist. Cuyahoga No. 104388, 2017-Ohio-291, ¶ 14 (cases cited ); State v. Virden , 7th Dist. Belmont No. 04 BE 39, 2005-Ohio-6446, ¶ 22 (“a defendant’ s motive and intent during an incident giving rise to a charge of domestic violence are irrelevant to a determination as to whether the defendant acted with knowledge” ); State v. Younker , 2d Dist. Darke No. 02CA1581, 2002-Ohio-5376, ¶ 23 (“[t]he fact tha t Defendant lacked a specific intent to cause physical harm is of no consequence, be cause R.C. 2919.25(A) only requires that the offender act ‘knowingly’”). {¶28} Accordingly, this court found that there was sufficient evidenc e to support a charge of Domestic Violence where the victim testified that the defendant “injured her eye by intentionally pushing her hand, resulting in her mascara wan d entering her eye” and “injured her knee by pulling her down the stairs.” Chardon v. Bulman , 11th Dist. Geauga No. 2007-G-2811, 2008-Ohio-6769, ¶ 87. The court in Stover found sufficient evidence existed where the defendant pushed his mother to the ground whi le trying to get to the

bathroom. Stover at ¶ 14. In Middleburg Heights v. Musa , 8th Dist. Cuyahoga No. 97914, 2013-Ohio-366, the court held that “it is reasonable to infer t hat [the defendant] was aware that by struggling with his wife to get the car keys and draggi ng her from their son’s room to the outside of the house, he would probably be causing her s ome injury, even if only a slight and fleeting injury.” Id. at ¶ 17. See also State v. Celli , 9th Dist. Summit No. 28226,8

Case No. 2020-G-0268 2017-Ohio-2746, ¶ 24 (injury sustained during a struggle over p ersonal belongings). {¶29} The first assignment of error is without merit. {¶30} In the second assignment of error, Vanover challenges her convi ctions as being against the manifest weight of the evidence. {¶31} “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 t han the other. It indicates clearly to the jury that the party having the burd en of proof will be entitled to their verdict, if, on weighing the evidence in their minds, the y shall find the greater amount of credible evidence sustains the issue which is to be established before them. We ight is not a question of mathematics, but depends on its effect in inducing belief .” (Citation omitted.) State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). {¶32} When considering whether a judgment is against the weight of th e evidence, “a reviewing court asks whose ev idence is more persuasive—the s tate’s or the

defendant’s?” State v. Wilson , 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25. The court must consider all the evidence in the record, the reasonable inferences, the credibility of the witnesses, and whether, “in resolving co nflicts in the evidence, the jury clearly lost its way and created such a manifest miscarria ge of justice that the conviction must be reversed and a new trial ordered.” (Citatio n omitted.) Thompkins at 387. “Since there must be sufficient evidence to take a case t o the jury, it follows that ‘a finding that a conviction is supported by the weight of the evi dence necessarily must include a finding of sufficiency.’” (Citation omitted.) State v. Howard , 11th Dist. Lake No. 2019-L-153, 2020-Ohio-5057, ¶ 47. {¶33} “When a court of appeals reverses a judgment of a trial court o n the basis9

Case No. 2020-G-0268 that the verdict is against the weight of the evidence, the app ellate court sits as a ‘“thirteenth juror”’ and disagrees with the factfinder’s resolu tion of conflicting testimony.” (Citation omitted.) Thompkins at 387. Nevertheless, “[t]he trier of fact is free to believe or disbelieve all or any of the testimony” and “is in the best position to take into account inconsistencies, along with the witnesses’ manner and demeanor, and determine whether the witnesses’ testimony is credible.” State v. Haney , 11th Dist. Lake No. 2012-L-098, 2013-Ohio-2823, ¶ 43. “Consequently, although an appellate cou rt must act as a ‘thirteenth juror’ when considering whether the manifest weight of the evidence requires reversal, it must also give great deference to the fact finder’ s determination of the witnesses’ credibility.” (Citation omitted.) Id. {¶34} Joanne’s argument on appeal is that her testimony was more cred ible than Michael’s testimony. Joanne makes the following specific claim s regarding Michael’s testimony: 1. Mr. Vanover testified that Mrs. Vanover repeatedly and consistently prevented him from leaving, but at different times reported that he could not reach an exit despite having his bac k against one, having Mrs. Vanover blocking one but not the other , and not being willing to leave without his shoes (which he alternat ively reported being in the kitchen and in the garage).

2. Mr. Vanover’s description of being pinned and repeatedly punched was inconsistent with his version of events on the date in question, as verified by the responding Deputy.

3. Mr. Vanover’s claim that his arm was physically restrained by a woman almost a foot shorter than him and held in place while sh e dragged her nails from his wrist to his elbow defies credibilit y by itself. Furthermore, the photographs of the sole abrasion on his arm sh ows the abrasion being made in a left to right manner, not up and d own, and did not show anything resembling individual nail marks.

4. Mr. Vanover admitted to using both hyperbole and exaggerati on10

Case No. 2020-G-0268 during his testimony when it came to describing Mrs. Vanover’s demeanor on the date in question as well as his substantial (15 -20) history of physical altercations.

5. Mr. Vanover admitted that he was not prepared to leave whe n Mrs. Vanover threw him out, and further admitted to having been engaged in an apartment search for months prior. Appellant’s brief at 11-12. {¶35} The points raised by Joanne could support the conclusion that M ichael’s testimony was lacking in credibility but do not compel that con clusion. Many of these points concern testimony on matters of little significance to J oanne’s guilt or innocence. In other respects, they are not inconsistent with other testimo ny in the record. Both

Joanne and Michael testified that she wanted him out of the hou se, she wanted the cell phone, and they struggled over the phone. Although Joanne deni ed preventing Michael from leaving the home, the struggle over the phone could have h ad that effect if she continued reaching for the phone while he tried to move past he r. Without more precise testimony regarding the layout of the residence, it is not poss ible to say that Michael’s description of the incident was inherently improbable. {¶36} Michael’s description of the altercation with Joanne at trial w as not inconsistent with the description given on the day of the incid ent. Deputy Reinhart testified that Michael’s trial testimony “was probably a little more in depth,” but he could not recall many of the details that either Michael or Joanne re lated on the date in question. {¶37} The photographs of Michael’s arms unquestionably show abrasions on the forearms but there is no conclusive testimony as to how they we re caused. Michael described them as scratch marks but not a bite mark. Deputy Re inhart believed the injury

resembled a bite mark. Joa nne speculated that they might have been caused during the11

Case No. 2020-G-0268 struggle over the phone, but did not know what caused the marks . The fact that the marks cut across the width of the arms rather than their length in th e photographs does not undermine Michael’s testimony that Joanne caused them in order to make him surrender the phone. {¶38} The fact that Michael used hyperbole and exaggeration with rega rd to certain aspects of his testimony on collateral matters has litt le bearing on his credibility, especially inasmuch as he freely admitted to using hyperbole an d exaggeration. {¶39} As a result of the altercation and Joanne’s arrest, Michael was able to remain in the residence for twelve days when he had not yet sec ured another place to live. Certainly, this could have been a motive for Michael to fabricate charges. Such a motive may be legitimately doubted, however, since he did not p rovoke the incident. Both parties testified that the altercation began when Joanne ordere d Michael to leave the residence and demanded the return of the cell phone. {¶40} Joanne also argues under this assignment of error that the muni cipal court’s stated reasons for crediting Michael’s testimony over Joanne’s were unsupported by the evidence. In assessing the part ies’ relative credibility, the court stated: I find again that on direct examination, Miss Vanover said she fell straight back, hit the door jam. On cross, she said she hit a shoe rack. The bruise appearing on Defendant’s Exhibit looked to be a side bruise that if she fell back on the door jam, I don’t know how that would result in that bruise. Again, never mentioned the shoe r ack on direct examination, only on cross. By her own admission, she m ight have scratched Mr. Vanover when attempting to grab the phone. * * * She was inconsistent when she told the deputy, or when * * * on direct she testified that she told the deputies about the guns. But yet on cross * * *, her response was that she had mentioned in her 911 call that there were guns. * * *12

Case No. 2020-G-0268 What the Court finds really problematic is that she started cry ing while testifying about this fight or some things that she alleg es Mr. Vanover said. She alleges she got pushed. She states there ar e guns in the house, but yet, she doesn’t call 911 at that point. She calls her sister first. And Mr. Vanover, by his own, or in his testimony stated, quote, he was truly scared. Again, the credibility iss ue finds [sic] that Miss Vanover was not credible.

{¶41} Joanne correctly notes that the municipal court was wrong about her testimony as to the cause of her bruise and advising the deputi es about the presence of guns. Joanne did state in her direct testimony that, when Mich ael pushed her, she fell against the door jam and then on the shoe rack when she went to the floor. Joanne also

testified on direct that it was the shoe rack that caused the b ruise. Furthermore, Joanne never testified that she advised the deputies on the scene abou t the presence of guns. The court’s mischaracterization of Joanne’s testimony on these points does not invalidate its finding of guilt. Joanne’s testimony regarding the bruise and the guns was only part of the court’s analysis of her credibility. When reviewing whethe r a conviction is against the weight of the evidence, the reviewing court must review all the evidence in the record and, sitting as a thirteenth juror, is not bound by the trial c ourt’s assessment of that

evidence. {¶42} More important in the municipal court’s estimation was that, wh ile claiming that Michael pushed her and that she was concerned about guns b eing in the house, she

contacted her sister before law enforcement. This is similar t o the argument made by

Joanne that Michael was not credible because his trial testimon y was more detailed than the statement given to Deputy Reinhart at the scene. Joanne di d not mention guns to the deputies at the scene or in her written statement. While she m entioned the guns to the 911 dispatcher, she testified it was because she was asked whet her there were guns in13

Case No. 2020-G-0268 the home. At trial, however, Joanne claimed that she was scare d of Michael killing her with those guns. While there is n o inconsistency in her statem ents, the trier of fact could determine that there was an inconsistency in her professed fear of the guns and her

behavior at the time of the incident. {¶43} The municipal court emphasized as “really problematic” the fact the Joanne began crying while testifying about certain intimate details of her relationship with Michael that had no direct bearing on the charges against her. While t he court did not elaborate on what it found problematic about Joanne’s testimony at this p oint, its comment underscores why a reviewing court is normally deferential to a lower court’s judgment regarding the credibility of witnesses although it may disagree with that judgment.

“Because the trier of fact sees and hears the witnesses and is particularly competent to decide ‘whether, and to what extent, to credit the testimony of particular witnesses,’ we

must afford substantial deference to its determinations of cred ibility.” (Citations omitted.) Barberton v. Jenney , 126 Ohio St.3d 5, 2010-Ohio-2420, 929 N.E.2d 1047, ¶ 20. Whi le the court’s finding of inconsistencies in Joanne’s testimony ca rries no weight, the court’s

consideration of her manner and demeanor is entitled to deferen ce. State v. Conklin , 11th Dist. Geauga No. 2020-G-0242, 2021-Ohio-417, ¶ 64 (“[t]he choice between the credibility of witnesses and their conflicting testimony rests solely with the finder of fact and an appellate court may not substitute its own judgment for that of the finder of fact”) (citation omitted); State v. Lavean , 11th Dist. Lake No. 2020-L-045, 2021-Ohio-1456, ¶ 37 (“[t]he trier of fact * * * is in the best position to gauge the witnesses’ demeanor, gestures, and voice inflections, and to use these observations to weigh their credibility”) (citation omitted).14

Case No. 2020-G-0268 {¶44} Here, we are unable to gauge what effect seeing and hearing the witnesses, Joanne in particular, had on the municipal court’s estimation o f their credibility. In the present case, that determination was critical to the ultimate i ssues in the case. Joanne and Michael presented conflicting testimony on what occurred du ring the incident, neither party materially contradicted herself or himself in their testi mony, and there was little other evidence to either corroborate or impeach their testimony. In these circumstances, which are not at all unusual or peculiar, we find no cause to overtur n the verdicts rendered. Despite the municipal court’s misstatements regarding Joanne’s testimony, we cannot say that the court lost its way and created such a manifest mis carriage of justice that her

convictions must be reversed and a new trial ordered. {¶45} The second assignment of error is without merit. {¶46} For the foregoing reasons, the judgment of the Chardon Municipa l Court finding Joanne guilty of Domestic Violence and Disorderly Condu ct is affirmed. Costs to be taxed against the appellant.

MARY JANE TRAPP, P.J., THOMAS R. WRIGHT, J.,

concur.