[Cite as State v. Lunsford , 2020-Ohio-965.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO/VILLAGE OF NEW MIAMI, Appellee,

- vs -

TRACY W. LUNSFORD, Appellant. :

:

:

:

:

: CASE NO. CA2019-07-116

O P I N I O N

3/16/2020

CRIMINAL APPEAL FROM HAMILTON MUNICIPAL COURT Case No. 19CRB01900-A

Neal D. Schuett, City of Hamilton Prosecuting Attorney, 345 Hig h Street, 2nd Floor, Hamilton, Ohio 45011, for appellee Christopher Paul Frederick, 300 High Street, Suite 550, Hamilto n, Ohio 45011, for appellant

S. POWELL, J. {¶ 1} Appellant, Tracy W. Lunsford, appeals his conviction in the Ham ilton Municipal Court for one count of assault. For the reasons outl ined below, we affirm. {¶ 2} On May 15, 2019, Officer Moebius with the New Miami Police Depa rtment filed a complaint charging Lunsford with assault in violation o f R.C. 2903.13(A), a firstdegree misdemeanor. As Officer Moebius alleged in the complain t, the charge arose afterButler CA2019-07-116

- 2 - Lunsford struck the purported victim, G.M., in the back of the head as G.M. tried to "leave a building" located in New Miami, Butler County, Ohio on May 1, 2019. {¶ 3} On June 25, 2019, the matter was tried to the bench. During tr ial, the trial court heard testimony from three witnesses: G.M., Officer Moebi us, and Lunsford. {¶ 4} G.M. testified she had driven her daughter's car to work on the afternoon of May 1, 2019. Upon arriving at work, G.M. testified that she we nt inside where she made

contact with Lunsford while Lunsford was in his office. G.M. t estified that she and Lunsford were at that time in a "relationship." According to G.M., Luns ford was "angry" and "highly agitated" upon seeing her enter his office. G.M. testified tha t Lunsford then cussed her out, called her names, and told her to leave. G.M. testified that L unsford also "let it be known that he hadn't taken his psych meds in three days." G.M. testi fied that this "scared [her] to death" because Lunsford was "destroying everything" in his offi ce. When asked if she knew why Lunsford was upset with her, G.M. testified that she "wasn' t there when he wanted [her]

to be." {¶ 5} G.M. testified that after Lunsford told her to leave, she exite d Lunsford's office and went towards the building's main door. However, just prior to her exiting the building, G.M. testified that Lunsford "came after" her and punched her o ne time in the back of the head. According to G.M., Lunsford's punch to the head "hurt" a nd caused her to go down on her knees. After being punched, G.M. testified that she tol d Lunsford that she was going to call the police and press charges. G.M. testified that Luns ford then followed her outside. Once outside, G.M. testified that Lunsford picked up a "big roc k," threw it at her daughter's car, and told her that he was going to put her, her children, a nd her grandchildren "in a house, nailing the windows shut and the doors and set it on fir e." G.M. testified that she then drove across the street and called the police to report th e assault. {¶ 6} Officer Moebius testified that he was dispatched to the scene t o investigateButler CA2019-07-116

- 3 - the alleged assault. Upon his arrival, Officer Moebius testifi ed that he contacted Lunsford

and asked him if he had assaulted G.M. Officer M oebius testified that Lunsford responded by stating, "no, he did not assault her" and that "he doesn't h it women." Officer Moebius testified that he also made contact with G.M. later that day at the police station. According to Officer Moebius, although he did not observe any injury to G .M.'s person, G.M. was at that time still "very, very shaken" to the point where he "had to take her outside for her to smoke for her to * * * calm down enough to actually sit down an d finish [writing her] statement." The written statement G.M. provided to Officer Moe bius is consistent with G.M.'s trial testimony outlined above. 1 {¶ 7} Contrary to G.M.'s testimony, Lunsford testified that G.M. had come into his office red in the face and screaming profanity at him. Upon se eing G.M. so mad, Lunsford testified that he told G.M. "you need to go ahead and leave and get out of the building."

Lunsford also testified that he told G.M. that their relationsh ip was over. Lunsford testified that G.M. then "snatched a hand full of keys" off his desk, tol d him that she was "going to tell the cops [he] hit [her]," and exited the building. Lunsfo rd testified this entire incident lasted just a matter of "[s]econds. Long enough for [him] to t ell her to get out of the building and not come back. To get out of [his] life and not ever come back." When asked if he followed G.M. out the door as she left, Lunsford testified that he "might have went three foot out the door to make sure she was leaving the property." Lunsf ord, however, denied ever punching or even touching G.M. As Lunsford testified, "I didn' t touch her at all. I had no

reason to." {¶ 8} After both parties rested, the trial court issued its decision finding Lunsford

1. In her written statement, G.M. claimed that upon her arrival at work she went into Lunsford's office and sat down. G.M. claimed that Lunsford then came in and "started yel ling and threatening to kill [her]" before punching her in the back of the head. G.M. also claimed that L unsford "cleared the desk to try and scare [her]," followed her outside, and "threw a huge rock" that dama ged her daughter's car. G.M. further claimed that Lunsford had threatened to kill her if she went to the pol ice.Butler CA2019-07-116

- 4 - guilty as charged. In reaching this decision, the trial court noted that it had found G.M.'s testimony credible. As the trial court stated: I have to make a finding of [whose] version of what happened convinces me not only that's more accurate but it's proof beyon d a reasonable doubt of an offense. But, I'd have to tell you in this case, when we heard [G.M.] testify, I believe her. She – she was not shaken in her testimony. When she testified I felt lik e we were hearing the truth from a person having gone through something that was very bad to go through. And when she testified I believe that she was telling the truth and I still do. And not just that, but I believe it to the point that I think it es tablished proof beyond a reasonable doubt. {¶ 9} This was in contrast to what the trial court found in regard to Lunsford's testimony. As the trial court stated: I compare that to the testimony of Mr. Lunsford whose testimony did not ring true to me and I do not think that uh – he was tel ling the truth about what happened that day. And so I'm going to make a finding of Guilty and the record I guess should be clear , it's solely on [G.M.'s] testimony. {¶ 10} Upon finding Lunsford guilty, the trial court then sentenced Lu nsford to 180 days in jail, with 173 of those days suspended, placed Lunsford on two years of community control, and ordered Lunsford to pay a $300 fine plus court cos ts. Lunsford now appeals his conviction, raising a single assignment of error for review . In his single assignment of error, Lunsford argues his conviction was against the manifest weight of the evidence. We disagree. {¶ 11} A manifest weight of the evidence challenge examines the "incli nation of the greater amount of credible evidence, offered at a trial, to sup port one side of the issue rather

than the other." State v. Barnett , 12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, ¶ 14. To determine whether a conviction is against the manifest weight of the evidence, this court must look at the entire record, weigh the evidence and al l reasonable inferences, consider the credibility of the witnesses, and determine whethe r in resolving the conflicts inButler CA2019-07-116

- 5 - the evidence, the trier of fact clearly lost its way and create d such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. State v. Wilks , 154 Ohio St.3d 359, 2018-Ohio-1562, ¶ 168. This court will overtur n a conviction due to the manifest weight of the evidence only in extraordinary circumsta nces when the evidence presented at trial weighs heavily in favor of acquittal. State v. Morgan , 12th Dist. Butler Nos. CA2013-08-146 and CA2013-08-147, 2014-Ohio-2472, ¶ 34. {¶ 12} As noted above, Lunsford was convicted of assault in violation of R.C. 2903.13(A). Pursuant to that statute, "[n]o person shall knowi ngly cause or attempt to cause physical harm to another or to another's unborn." Lunsford arg ues his conviction must be reversed because the trial court "incorrectly weighed the evide nce" and failed to "properly execute its fact-finding responsibilities." This is because, a ccording to Lunsford, G.M. was not a credible witness. Lunsford supports this argument by not ing that there was no corroborating evidence from any other witness to support G.M.'s testimony that Lunsford punched her in the back of the head. Lunsford also supports th is claim by noting that the state did not submit any photographs or "eyewitness verificatio n" regarding any injury G.M. may have suffered as the result of being punched in the head. {¶ 13} However, contrary to Lunsford's claim, it is well established t hat corroborating evidence is not necessary in order to support a conviction for assault in violation of R.C. 2903.13(A). Coshocton v. Alexander , 5th Dist. Coshocton No. 77-CA-4, 1977 Ohio App. LEXIS 9148, *3 (Aug. 18, 1977) ("[t]here is no requirement of c orroboration" to support a conviction for assault in violation of R.C. 2903.13[A]); s ee, e.g., State v. Rainey , 6th Dist. Lucas No. L-18-1270, 2019-Ohio-4618, ¶ 6 (assault conviction in violation of R.C. 2903.13[A] affirmed based on victim's testimony since "[t]here was no need for her testimony to be corroborated"). A victim's testimony alone is sufficient to sustain a conviction for assault in violation of R.C. 2903.13(A) if the v ictim's testimony proves all theButler CA2019-07-116

- 6 - elements of the offense. Columbus v. McDaniel , 10th Dist. Franklin No. 09AP-879, 2010- Ohio-3744, ¶ 18. Such is the case here. That is to say G.M.'s testimony, if believed, was sufficient to establish each and every element of assault in vi olation of R.C. 2903.13(A) and convince the trial court of Lunsford's guilt beyond a reasonabl e doubt. State v. Channels , 2d Dist. Montgomery No. 19530, 2003-Ohio-3830, ¶ 14. {¶ 14} The fact that the trial court believed G.M.'s testimony over th at of Lunsford's does not render Lunsford's conviction against the manifest weig ht of the evidence. See, e.g., State v. Smith , 2d Dist. Montgomery No. 25462, 2013-Ohio-5345, ¶ 18 (assault conviction in violation of R.C. 2903.13[A] affirmed where victi m testified appellant punched her in the face and head despite t he victim's "admitted history of drug use, drug use on the day of the incident, lengthy criminal history, and conflicting details in her trial testimony"). A conviction is not against the manifest weight of the evidence simply because the trier of fact believed the testimony offered by the prosecution. State v. Crossty , 12th Dist. Nos. CA2017-01-003 thru CA2017-01-005, 2017-Ohio-8267, ¶ 68. This i s because it is the trier of fact and not this court on appeal that makes determinations of credibility and the weight to be given to the evidence presented at trial. State v. Erickson , 12th Dist. Warren No. CA2014-10-131, 2015-Ohio-2086, ¶ 42, citing State v. DeHass , 10 Ohio St.2d 230 (1967), paragraph one of the syllabus. Therefore, because Lunsford's c onviction was not against the manifest weight of the evidence, Lunsford's single assignme nt of error lacks merit and

is overruled. {¶ 15} Judgment affirmed.

HENDRICKSON, P.J., and RINGLAND, J., concur.