[Cite as State v. Wynn, 2017-Ohio-8045.]

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

STATE OF OHIO, 

 Plaintiff-Appellee, 

 vs. 

SHAUN WYNN, 

 Defendant-Appellant. 

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APPEAL NO. C-160782 

TRIAL NO. C-16CRB-22762 

 

 O P I N I O N.

 

 

Criminal Appeal From: Hamilton County Municipal Court 

 

Judgment Appealed From Is: Affirmed 

Date of Judgment Entry on Appeal: October 4, 2017 

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex Scott Havlin, 

Assistant Prosecuting Attorney, for Plaintiff-Appellee, 

Raymond T. Faller, Hamilton County Public Defender, and David Hoffman, 

Assistant Public Defender, for Defendant-Appellant. 
OHIO FIRST DISTRICT COURT OF APPEALS 

2

MYERS, Judge.

{¶1} Following a bench trial, defendant-appellant Shaun Wynn was 

convicted of domestic violence for assaulting his wife, Jennifer Wynn. He now 

appeals. 

{¶2} At trial, Jennifer testified that Shaun Wynn was her husband and that 

they had been married nearly seven years. Jennifer and Wynn had no children 

together, but she had four children from another relationship. 

{¶3} Jennifer had left her two youngest children with Wynn at his sister’s 

house so that she could take her older children to Kings Island. When Jennifer 

arrived to pick up the younger children, Wynn got into the passenger seat of her car 

and began choking and punching her. 

{¶4} On cross-examination, defense counsel asked Jennifer whether she 

and Wynn had been separated on the date of the offense. Jennifer responded, “No. 

We were not living together, but we were still together.” Jennifer testified that she 

was living at her mother’s house. When defense counsel asked Jennifer, “And Shaun 

was staying with his sister?,” Jennifer responded, “Yes.” At the close of the state’s 

case, the trial court denied Wynn’s Crim.R. 29 motion for a judgment of acquittal. 

{¶5} In the defense case, Wynn testified that he and Jennifer had lived 

together until they lost their home. After that, the two lived separately. He admitted 

that he and Jennifer had argued on the date of the offense, but he denied that he had 

put his hands on her. 

{¶6} The trial court found Wynn guilty of domestic violence and sentenced 

him to 180 days’ incarceration. 
OHIO FIRST DISTRICT COURT OF APPEALS 

3 

{¶7} In his first assignment of error, Wynn challenges the trial court’s 

denial of his Crim.R. 29 motion for a judgment of acquittal. The standard of review 

for the denial of a Crim.R. 29 motion is the same as the standard for a challenge to 

the sufficiency of the evidence. See State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio2417, 847 N.E.2d 386, ¶ 37. In reviewing a challenge to the sufficiency of the 

evidence, this court must determine whether, after construing all reasonable 

inferences in favor of the state, any reasonable trier of fact could find that the state 

presented evidence to prove each of the essential elements of the offense beyond a 

reasonable doubt. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 

(1997); State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of 

the syllabus; State v. Martin, 20 Ohio App.3d 172, 485 N.E.2d 717 (1st Dist.1983), 

paragraph two of the syllabus. 

{¶8} Wynn was convicted of domestic violence pursuant to R.C. 2919.25(A), 

which prohibits knowingly causing or attempting to cause physical harm to a family 

or household member. The term “family or household member” is defined to include 

a spouse “who is residing or has resided with the offender.” R.C. 2919.25(F)(1)(a)(i). 

Wynn argues that the state failed to prove in its case-in-chief that his wife was a 

“family or household member” for purposes of R.C. 2919.25(A). 

{¶9} In denying Wynn’s Crim.R. 29 motion, the trial court stated that it 

interpreted Jennifer’s testimony to mean that she and her husband “are not legally 

separated; they just weren’t living together at that moment.” We find the trial court’s 

interpretation of Jennifer’s testimony is reasonable and that her testimony gives rise 

to a reasonable inference that they resided together previously. Construing all 

reasonable inferences in favor of the state, we hold that the state presented sufficient 
OHIO FIRST DISTRICT COURT OF APPEALS 

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evidence in its case-in-chief that Wynn and his wife had lived together at some point 

during their seven-year marriage. See Jenks, 61 Ohio St.3d at 273, 574 N.E.2d 492. 

Therefore, we overrule the first assignment of error. 

{¶10} In his second assignment of error, Wynn argues that his conviction 

was based upon insufficient evidence and was against the manifest weight of the 

evidence. In reviewing a challenge to the weight of the evidence, we must review the 

entire record, weigh the evidence and all reasonable inferences, consider the 

credibility of the 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. Thompkins, 

79 Ohio St.3d at 387, 678 N.E.2d 541. 

{¶11} Wynn contends that his testimony that he and Jennifer had lived 

together “at one point in time” was insufficient to establish that she was a “family or 

household member.” We disagree. As we have concluded, the state presented 

sufficient evidence to establish that element of the offense. Wynn’s testimony 

further supported this element. 

{¶12} Wynn also argues that Jennifer’s testimony regarding what occurred 

and the physical injuries she sustained was not credible. The determination of 

credibility was for the trial court. See State v. DeHass, 10 Ohio St.2d 230, 227 

N.E.2d 212 (1967), paragraph one of the syllabus. Our review of the record does not 

persuade us that the trial court lost its way and created a manifest miscarriage of 

justice in finding Wynn guilty of the offense. See Thompkins at 387. We overrule the 

second assignment of error and affirm the trial court’s judgment. 

Judgment affirmed. 
OHIO FIRST DISTRICT COURT OF APPEALS 

5

MILLER, J., concurs. 

CUNNINGHAM, P.J., concurs separately. 

CUNNINGHAM, P.J., concurring separately. 

{¶13} I concur in the judgment only, because I disagree with the majority’s 

analysis under the first assignment of error. A motion for a judgment of acquittal 

should not be granted when reasonable minds can reach different conclusions as to 

whether each element of the crime charged has been proved beyond a reasonable 

doubt. See State v. Bridgeman, 55 Ohio St.2d 261, 381 N.E.2d 184 (1978), syllabus. 

I cannot conclude that the evidence at the close of the state’s case-in-chief met the 

beyond a reasonable doubt standard with respect to the “family or household 

member” element of the domestic-violence offense. But because Wynn waived his 

right to challenge the sufficiency of the evidence at the close of the state’s case by 

presenting a defense, and his testimony filled the gap in the state’s evidence, he has 

failed to demonstrate reversible error. 

{¶14} As relevant to this case, a “family or household member” is defined as 

a “spouse” who “is residing or has resided with the offender.” R.C. 

2919.25(F)(1)(a)(i). The domestic-violence statute thus required proof that the 

spouse had resided with the offender at some point, see State v. Sims, 169 Ohio 

App.3d 579, 2006-Ohio-6285, 863 N.E.2d 1110, ¶ 13 (1st Dist.), and that proof could 

be by direct or circumstantial evidence. See State v. Jenks, 61 Ohio St.3d 259, 574 

N.E.2d 492 (1991), paragraph one of the syllabus. Reasonable inferences are allowed 

to fill in any gaps in the evidence. See State v. Guidugli, 157 Ohio App.3d 383, 2004-

Ohio-2871, 811 N.E.2d 567, ¶ 17 (1st Dist.). An inference is “ ‘a conclusion which, by 

means of data founded upon common experience, natural reason draws from facts 
OHIO FIRST DISTRICT COURT OF APPEALS 

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which are proven.’ ” Id., quoting State v. Nevius, 147 Ohio St. 263, 71 N.E.2d 258 

(1947). 

{¶15} The majority holds that Jennifer’s testimony was sufficient to establish 

the “is residing or has resided” requirement because one could reasonably infer from 

her testimony that she and Wynn had resided together previously. But I do not 

agree that one could reasonably infer this from her testimony. Jennifer clearly 

testified that she and Wynn were not living together at the time of the offense. And 

she was never asked if she had ever lived with Wynn. 

{¶16} The trial court inferred that Jennifer and Wynn had lived together at 

some point because when Jennifer was asked on cross-examination whether she and 

Wynn had been separated on the date of the offense, she replied, “No. We were not 

living together, but we were still together.” The court “interpreted” this testimony to 

mean that they were “not legally separated; they just weren’t living together at that 

moment” and, based on this interpretation, inferred that Jennifer and Wynn had 

previously lived together. The majority finds to be reasonable the trial court’s 

interpretation of this testimony and its inference. But the fact that the parties were 

“legally separated” does not support an inference or a determination that they had 

ever resided together. Jennifer’s testimony, even when viewed in the light most 

favorable to the state, is too ambivalent to reasonably suggest that they had once 

lived together. Moreover, as the domestic-violence statute emphasizes by requiring 

evidence that the victim was not just a spouse, but a spouse who had once resided 

with the offender, one cannot infer from the mere fact that Jennifer and Wynn were 

married and not legally separated that they had resided together at one point. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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{¶17} Nonetheless, I would affirm Wynn’s conviction because Wynn 

presented a defense, and he testified that he and Jennifer had lived together. This 

court adheres to the rule “that a defendant who presents evidence and testifies in his 

defense waives his right to challenge the sufficiency of the evidence at the close of the 

state’s case.” Guidugli, 157 Ohio App.3d 383, 2004-Ohio-2871, 811 N.E.2d 567, at ¶ 

14.1 See United States v. Black, 525 F.2d 668, 669 (6th Cir.1975) (“The rule is 

settled that when a defendant introduces evidence, he waives any objection to the 

denial of his motion to acquit at the close of the government’s case. The defendant 

may renew his motion at the close of all the proof * * * but the court will then 

consider the sufficiency of the evidence on the record as a whole and not the 

sufficiency of the government’s case in chief.”)(Citations omitted.) See also Smith v. 

Massachusetts, 543 U.S. 462, 472, 125 S.Ct. 1129, 160 L.Ed.2d 914 (2005) (“Many 

jurisdictions still follow the traditional rule that after a trial or on appeal, the 

sufficiency-of-the-evidence challenges are reviewed on the basis of the entire record, 

 

1 In Guidugli, we noted that the Second Appellate District in State v. Parks, 56 Ohio App.3d 8, 9-

10, 564 N.E.2d 747 (2d Dist.1990) no longer adhered to this rule. The Parks court reasoned that 

the Ohio Supreme Court’s holding in Helmick v. Republic-Franklin Ins. Co., 39 Ohio St.3d 71, 529 

N.E.2d 464 (1988), that a defendant in a civil case does not waive a claim of error by presenting 

evidence after the denial of a motion for a directed verdict pursuant to Civ.R. 50(A)(2), should 

apply equally in the criminal forum when a defendant presents evidence after the denial of his 

Crim.R. 29(A) motion at the conclusion of the state’s case and renews his motion at the close of all 

evidence. Other districts have similarly held that a criminal defendant may present evidence 

without waiving his right to challenge on appeal the sufficiency of the evidence at the close of the 

state case, if the motion is renewed, also relying primarily on Helmick. See, e.g., State v. 

Whiteaker, 188 Ohio App.3d 489, 2010-Ohio-3502, 935 N.E.2d 934, ¶ 15 (8th Dist.); State v. 

Brown, 90 Ohio App.3d 674, 685, 630 N.E.2d 397 (11th Dist.1993). 

 This court in Guidugli rejected Parks, emphasizing that the Ohio Supreme Court’s holding in 

Helmick was based in part on language found in Civ.R. 50(A)(2) that is absent from Crim.R. 29, 

and that the reasoning of Helmick did not apply to a criminal case. We explained, “Unlike a civil 

case, the state may not depose the defendant or call the defendant as a witness on crossexamination in its case-in-chief. The Fifth Amendment to the United States Constitution 

guarantees that a defendant charged with a crime may refuse to testify or otherwise present a 

defense. But if, as here, the criminal defendant does take the stand to assert a defense such as 

self-defense, in which he essentially admits his guilt absent a finding of justification, there is 

absolutely no logic or justice in a rule that would require an appellate court to reverse his 

conviction because of the insufficiency of the evidence before he testified. Such a rule could 

theoretically allow murders to go free on records that conclusively established their guilt.” 

Guidugli at ¶ 16. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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even if the defendant moved for acquittal when the prosecution rested and the court 

erroneously denied that motion.”). 

{¶18} Accordingly, upon review of the entire record in this case, the evidence 

was adequate to withstand Wynn’s sufficiency- and weight-of-the-evidence 

challenges. Therefore, I would overrule the assignments of error and affirm the trial 

court’s judgment. 

Please note: 

 The court has recorded its own entry on the date of the release of this opinion.