[Cite as State v. Williams, 2020-Ohio-3359.]

IN THE COURT OF APPEALS OF OHIO 

SEVENTH APPELLATE DISTRICT 

COLUMBIANA COUNTY

STATE OF OHIO, 

Plaintiff-Appellee, 

v. 

HOMER E. WILLIAMS, JR., 

Defendant-Appellant.

 

OPINION AND JUDGMENT ENTRY 

Case No. 19 CO 0001 

 

 Criminal Appeal from the 

Court of Common Pleas of Columbiana County, Ohio 

Case No. 2018-CR-393 

BEFORE: 

Gene Donofrio, Carol Ann Robb, David A. D’Apolito, Judges. 

JUDGMENT: 

Affirmed. 

Atty. Robert Herron, Prosecutor and Atty. Tammie Jones, Assistant Prosecutor, 

Columbiana County Prosecutor’s Office, 105 South Market Street, Lisbon, Ohio 

44432, for Plaintiff-Appellee, and 

Atty. Brian Smith, Brian A. Smith Law Firm, LLC., 755 White Pond Drive, Suite 403, 

Akron, Ohio 44320, for Defendant-Appellant. 
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Case No. 19 CO 0001

 

Dated: 

June 12, 2020 

 

Donofrio, J. 

{¶1} Defendant-appellant, Homer Williams, appeals his convictions in the 

Columbiana County Common Pleas Court following a bench trial for one count of 

domestic violence and one count of possession of cocaine. 

{¶2} On September 7, 2018, Officers Steven Adkins and Justin Watkins of the 

East Liverpool Police Department were dispatched to 440 East Avenue in East Liverpool, 

Ohio to respond to a domestic violence situation. Appellant resided in this home with the 

victim, Jackie Hayes (Hayes), and Hayes’ 15 year-old granddaughter J.D. When Officers 

Adkins and Watkins arrived at the home, they saw four people on the front porch: 

appellant, Hayes, J.D., and J.D.’s friend Indya Spann (Spann). 

{¶3} Officer Adkins interviewed Hayes separately from the other three people. 

Officer Adkins noted that she was originally calm when he arrived at the house. But when 

Officer Adkins pulled her aside to interview her, Hayes “seemed visibly shaken, started 

crying, almost, like hyperventilating.” (Tr. 33). The collar on Hayes’ shirt was stretched 

out and torn on the left side. After Officer Adkins interviewed Hayes, he instructed Officer 

Watkins to place appellant under arrest for domestic violence. 

{¶4} Officer Watkins then searched appellant for weapons. Officer Watkins’ 

search did not reveal anything illegal at this time. At the time of his arrest, appellant’s 

shoes were on and properly tied. Upon placing appellant in the squad car, Officer Watkins 

noticed a burnt spoon on the passenger side floor. Officer Watkins instructed appellant 

to exit the vehicle and Officer Watkins removed the spoon. Officer Watkins did not notice 

any other items in the rear of the cruiser. 

{¶5} When Officer Watkins arrived at the East Liverpool Police Department, he 

noticed that appellant’s “left foot [came] out, and his shoe to be halfway on with his heel 

of the shoe smashed down, and his foot not to be all the way inside the shoe.” (Tr. 61). 

Officer Watkins conducted another search of appellant inside the police station. This 

search revealed a small white rock in appellant’s left shoe that was later determined to 

be cocaine. 
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Case No. 19 CO 0001

{¶6} A Columbiana County Grand Jury indicted appellant for one count of 

domestic violence in violation of R.C. 2919.25(D)(4), a third-degree felony, and one count 

of possession of cocaine in violation of R.C. 2925.11(A)(C)(4)(a), a fifth-degree felony. 

The domestic violence charge was elevated to a third-degree felony based on appellant’s 

prior convictions for involuntary manslaughter and witness intimidation where the victim 

at the time of the offenses was his wife. 

{¶7} On December 5, 2018, the trial court held a bench trial. In addition to 

Officers Adkins and Watkins, plaintiff-appellee, the State of Ohio, called Spann. At the 

time of trial, Spann was 18 years-old. Spann was spending the night at Hayes’ home on 

the night of September 7, 2018. 

{¶8} At some point during the night, Spann and J.D. walked to a gas station to 

purchase food and drinks. When they returned to the house but before they entered, 

Spann heard Hayes screaming “help me.” (Tr. 84). When Spann and J.D. entered the 

house, “nothing was happening, but, like, [Hayes’] shirt was ripped and she had 

scratches.” (Tr. 86). 

{¶9} Spann also testified about Hayes’ statements concerning the incident. 

She testified that Hayes said appellant was trying to take her money and then choked 

her. Appellant objected to this line of questioning on the basis that it constituted hearsay 

but the trial court overruled his objection. 

{¶10} After the state called six witnesses, it moved to continue the trial because 

Hayes and J.D. had failed to appear after being subpoenaed. The state indicated that 

J.D. was now residing with her biological mother in the Columbus, Ohio area and J.D.’s 

mother was willing to bring J.D. to court in order to testify. The trial court granted the 

state’s continuance over appellant’s objection. 

{¶11} On December 11, 2018, appellant’s trial continued. J.D. and Officer 

Watkins were the only witnesses to testify on this date. J.D. testified that appellant and 

Hayes were fighting at first because appellant wanted Hayes to give him some money. 

Once appellant and Hayes stopped fighting, J.D. and Spann walked to the store. When 

J.D. and Spann returned, J.D. saw appellant choking Hayes and grabbing her by the shirt 

in the living room. Appellant was on top of Hayes when J.D. and Spann returned. Spann 

was behind J.D. when the two entered the living room. 
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Case No. 19 CO 0001

{¶12} The trial court found appellant guilty on both counts. The court sentenced 

appellant to 30 months incarceration for domestic violence and 10 months incarceration 

for drug possession to be served consecutively for a total of 40 months incarceration. 

Appellant timely filed his notice of appeal on January 14, 2019. Appellant now raises five 

assignments of error. 

{¶13} Appellant’s first assignment of error states: 

 THE TRIAL COURT’S DECISION TO ALLOW HEARSAY 

STATEMENTS FROM JACKIE HAYES MADE TO INDYA SPANN WAS AN 

ABUSE OF DISCRETION. 

{¶14} Appellant argues that Spann’s testimony about Hayes’ statements 

amounted to inadmissible hearsay that should have been excluded. 

{¶15} The admission of evidence is within the discretion of the trial court and the 

court's decision will only be reversed upon a showing of abuse of discretion. State ex rel. 

Sartini v. Yost, 96 Ohio St. 3d 37, 2002-Ohio-3317, 770 N.E.2d 584. This includes rulings 

on hearsay issues. State v. Rupp, 7th Dist. Mahoning No. 05 MA 0166, 2007-Ohio-1561, 

¶ 78 citing State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151. Abuse of 

discretion implies that the court acted in an unreasonable, arbitrary, or unconscionable 

manner. Sartini at ¶ 21. 

{¶16} Hearsay is a statement, other than one made by the declarant while 

testifying at the trial or hearing, offered in evidence to prove the truth of the matter 

asserted. Evid.R. 801(C). Hearsay is generally not admissible at trial. Evid.R. 802. 

{¶17} Spann’s testimony about Hayes’ statements is hearsay. Spann testified 

that Hayes said appellant choked her. Hayes’ statements were made out of court and 

were offered to prove the truth of the matter asserted. Namely, Hayes’ out-of-court 

statements were offered to prove that appellant choked her. 

{¶18} But Spann’s testimony was still admissible under the excited utterance 

exception to the hearsay rule. An excited utterance is defined as “[a] statement relating 

to a startling event or condition made while the declarant was under the stress of 

excitement caused by the event or condition.” Evid.R. 803(2). An excited utterance is an 

exception to the hearsay rule. Evid.R. 803(2). 
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Case No. 19 CO 0001

{¶19} In this case, Hayes’ statement to Spann that appellant choked her relate 

to the startling event of appellant choking her. Spann also laid a proper foundation that 

Hayes was under the stress of excitement when she made the statements. Spann 

testified that Hayes was crying, upset, had scratches on her chest, and her shirt was 

ripped through the middle. Additionally, Spann testified that she was outside of the house 

when she heard Hayes screaming “help me,” walked into the house, saw Hayes, and 

Hayes began to tell her what had happened. The short time frame between when Spann 

heard Hayes scream and when Hayes told Spann what happened indicates that Hayes 

was under the stress of excitement of being choked when Hayes said appellant choked 

her. Because Spann’s testimony about Hayes’ statements qualify as an excited 

utterance, the trial court did not abuse its discretion by permitting this testimony. 

{¶20} Accordingly, appellant’s first assignment of error is without merit and is 

overruled. 

{¶21} Appellant’s second assignment of error states: 

 THE TRIAL COURT’S DECISION TO CONTINUE THE TRIAL TO 

ALLOW THE STATE TO OBTAIN THE ATTENDANCE OF ITS 

WITNESSES WAS AN ABUSE OF DISCRETION. 

{¶22} Appellant argues that the state’s basis to continue the trial, to permit the 

attendance of Hayes and J.D., was the result of the state’s own negligence and the trial 

court abused its discretion by continuing the trial. 

{¶23} “The standard of review for the decision to grant or deny a continuance is 

abuse of discretion.” State v. Barnes, 7th Dist. Columbiana No. 98 CO 86, 2000 WL 

748127 (May 19, 2000) citing State v. Hook, 33 Ohio App.3d 101, 514 N.E.2d 721 (10th 

Dist.1986). 

{¶24} On November 19, 2018, the trial court scheduled appellant’s trial for 

December 5, 2018. On November 27, 2018, eight days prior to trial, the subpoenas for 

both Hayes and J.D. were filed. Hayes and J.D. were served with their subpoenas on 

November 30, 2018. 

{¶25} Appellant argues that because the state waited until eight days before trial 

to file the subpoenas for Hayes and J.D., the trial court’s decision to continue the trial 
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Case No. 19 CO 0001

constituted an abuse of discretion. Appellant argues that he was prejudiced by the 

granting of the continuance because the continuance permitted J.D. to testify and she 

was the only witness to testify that she saw appellant choke Hayes. Appellant cites no 

case law to support his argument that the granting of a continuance mid-trial in the state’s 

favor in order to secure witness attendance constitutes an abuse of discretion. 

{¶26} Hayes ultimately did not appear for trial, even after the continuance was 

granted. Therefore, the trial court granting the state’s motion to continue as it pertains to 

Hayes is moot and this assignment of error will focus on whether the trial court abused 

its discretion to continue the trial in order to secure J.D.’s attendance. 

{¶27} The state argued during its oral motion that, over the lunch hour on the 

first day of trial, counsel for the state received a phone call from J.D.’s mother. J.D.’s 

mother informed counsel for the state that J.D. now resided with her in the Columbus, 

Ohio area. The fact that J.D. is a minor who lived several hours away made her 

attendance at trial dependent on her mother. 

{¶28} Additionally, as the state points out, appellant’s counsel stated twice on 

the record that he would have preferred to have more time before trial in order to better 

review the evidence. 

{¶29} Moreover, the trial court continued the trial for only six days. This is a 

reasonably short continuance under the circumstances. Based on the above, the trial 

court did not abuse its discretion by granting the state’s motion to continue. 

{¶30} Accordingly, appellant’s second assignment of error is without merit and 

is overruled. 

{¶31} Appellant’s third assignment of error states: 

 THE TRIAL COURT’S DECISION TO ALLOW TESTIMONY AS TO 

APPELLANT’S PRIOR BAD ACTS WAS AN ABUSE OF DISCRETION. 

{¶32} Appellant argues that the state elicited evidence prohibited by Evid.R. 

404(B) and the trial court abused its discretion by permitting such evidence. 

{¶33} As this assignment of error challenges the admission of evidence 

submitted at trial, it is subject to the same abuse of discretion standard of review set forth 

in appellant’s first assignment of error. 
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Case No. 19 CO 0001

{¶34} During the first day of trial, the state called Detective Darin Morgan of the 

East Liverpool Police Department. Detective Morgan was involved in a criminal 

investigation that led to appellant’s arrest in 1998. A grand jury then indicted appellant 

on three charges: aggravated murder, intimidation of a victim or witness, and trafficking 

in drugs (the prior criminal case). 

{¶35} Detective Morgan began testifying about his knowledge concerning the 

prior criminal case. Appellant objected arguing that the testimony was about other bad 

acts evidence and was inadmissible. The state argued that because appellant was 

charged with third-degree felony domestic violence, it had to show that appellant had two 

prior convictions for violent offenses where appellant was related to the victim. The state 

also argued that the testimony regarding appellant’s convictions in the prior criminal case 

was not being offered for propensity purposes but to show plan, scheme, or design. The 

trial court overruled the objection. 

{¶36} Detective Morgan testified that the victim in the aggravated murder and 

intimidation charges was Angela Williams. At the time, Angela Williams was appellant’s 

wife. Appellant was then convicted of involuntary manslaughter and intimidation in the 

prior criminal case. The state introduced into evidence certified copies of the indictment 

and judgment entry of conviction in the prior criminal case. 

{¶37} Detective Morgan also testified about a conversation appellant had with a 

man named “Cakey” Hayes during the events of the prior criminal case. Appellant went 

to speak with Cakey Hayes after Angela’s death. Cakey Hayes gave an official police 

statement during the prior criminal case. Detective Morgan testified about this statement: 

Q: Was it conversation about what [appellant] had done? 

A: Yes, ma’am. 

Q: He, [appellant]? 

A: Yes, ma’am. 

Q: And what was the nature of the statement [appellant] made to Cakey 

Hayes? 

Mr. Wise: Objection. 
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Case No. 19 CO 0001

The Court: Overruled. 

A: That [appellant] had choked the victim and - - I believe that he had 

choked the victim and - - 

Mr. Wise: Objection, Your Honor. Now, he’s saying what he believed. I 

mean this is, again, a statement of which - - 

The Court: Sustained. 

Q: Do you know what the nature of the statement was that [appellant] made 

to Cakey Hayes? 

A: Part of the statement was that he choked her. I don’t remember the rest 

of the involvement there. 

(Tr. 119-120). 

{¶38} The state argues that the trial court excluded the testimony regarding 

appellant choking Angela Williams. But the above portion of the transcript shows 

otherwise. After the trial court sustained appellant’s objection, Detective Morgan testified 

appellant told Cakey Hayes that he choked Angela Williams. 

{¶39} Pursuant to Evid.R. 404(B), “[e]vidence of other crimes, wrongs, or acts is 

not admissible to prove the character of a person in order to show action in conformity 

therewith. It may, however, be admissible for other purposes, such as proof of motive, 

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or 

accident.” Evid.R. 404(B). 

{¶40} The state argues that this evidence was admissible pursuant to Evid.R. 

404(B) in order to show appellant’s plan, scheme, or design. But there was no other 

evidence to indicate how appellant choking Angela Williams approximately 20 years 

before his trial in this case constitutes a plan, scheme, or design. 

{¶41} But the admission of appellant’s statement that he choked Angela Williams 

was harmless error. Harmless error is defined as “[a]ny error, defect, irregularity, or 

variance which does not affect substantial rights[.]” State v. Morris, 141 Ohio St.3d 399, 
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Case No. 19 CO 0001

2014-Ohio-5052, 24 N.E.3d 1153, ¶ 23 quoting Crim.R. 52(A). Harmless error shall be 

disregarded. Id.

{¶42} First, appellant elected to have a bench trial in this matter. Any prejudicial 

effect of Detective Morgan’s testimony about appellant choking Angela Williams was 

minimized by the lack of a jury in this trial. When the trial court is the trier of fact, there is 

a presumption that the court disregards improper hearsay. State v. Crawford, 8th Dist. 

Cuyahoga No. 98605, 2013-Ohio-1659, ¶ 61. 

{¶43} Second, assuming Detective Morgan’s testimony about appellant choking 

Angela Williams was excluded, the state introduced into evidence certified copies of the 

indictment and the judgment entry of appellant’s convictions for involuntary manslaughter 

and intimidation of a crime victim or witness in the prior criminal case. The state also 

elicited testimony that Angela Williams was appellant’s wife during the prior criminal case. 

Prior bad acts are admissible if they are relevant to proving guilt of the offense in question. 

State v. Craig, 4th Dist. Gallia No. 01CA8, 2002-Ohio-1433, ¶ 11 citing State v. Gardner, 

59 Ohio St.2d 14, 391 N.E.2d 337 (1979). 

{¶44} Pursuant to R.C. 2919.25(D)(4), the state had to admit evidence that 

appellant had two prior convictions for domestic violence or offenses substantially similar 

to domestic violence. The judgment entry of conviction and testimony that Angela 

Williams was appellant’s wife satisfies this element. Assuming the testimony about 

appellant choking Angela Williams was excluded, Detective Morgan still testified that the 

victim in the prior criminal case was appellant’s wife and the judgment entry of conviction 

shows appellant was convicted of two offenses substantially similar to domestic violence. 

{¶45} Accordingly, appellant’s third assignment of error is without merit and is 

overruled. 

{¶46} Appellant’s fourth assignment of error states: 

 APPELLANT’S CONVICTION FOR DOMESTIC VIOLENCE WAS 

NOT SUPPORTED BY SUFFICIENT EVIDENCE. 

{¶47} Appellant argues that his prior convictions for involuntary manslaughter 

and intimidation of a crime victim do not meet the revised code definition of two or more 

violations or offenses under R.C. 2919.25(D)(4) because the convictions were part of a 
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Case No. 19 CO 0001

single judgment entry. Therefore, he argues that his third-degree felony domestic 

violence conviction is not supported by sufficient evidence. 

{¶48} Sufficiency of the evidence is the legal standard applied to determine 

whether the case may go to the jury or whether the evidence is legally sufficient as a 

matter of law to support the verdict. State v. Dickson, 7th Dist. Columbiana No. 12 CO 

50, 2013-Ohio-5293, ¶ 10 citing State v. Thompkins, 80 Ohio St.3d 89, 113, 684 N.E.2d 

668 (1997). Sufficiency is a test of adequacy. Id. Whether the evidence is legally 

sufficient to sustain a verdict is a question of law. Id. In reviewing the record for 

sufficiency, the relevant inquiry is whether, after viewing the evidence in the light most 

favorable to the prosecution, any rational trier of fact could have found the essential 

elements proven beyond a reasonable doubt. Id. Citing State v. Goff, 82 Ohio St.3d 123, 

138, 694 N.E.2d 916 (1998). When evaluating the sufficiency of the evidence to prove 

the elements, it must be remembered that circumstantial evidence has the same 

probative value as direct evidence. Id. Citing State v. Jenks, 61 Ohio St.3d 259, 272-

273, 574 N.E.2d 492 (1991) (superseded by state constitutional amendment on other 

grounds). 

{¶49} This assignment of error is limited to appellant’s conviction for domestic 

violence. The relevant domestic violence offense, R.C. 2919.25(D)(4), states, in part: 

If the offender previously has pleaded guilty to or been convicted of two or 

more offenses of domestic violence or two or more violations or offenses of 

the type described in division (D)(3) of this section involving a person who 

was a family or household member at the time of the violations or offenses, 

a violation of division (A) or (B) of this section is a felony of the third degree[.] 

{¶50} R.C. 2919.25(D)(3), relevant to this appeal, pertains to a defendant who 

previously pled guilty to or was convicted of domestic violence or a violation of law that is 

substantially similar to domestic violence. 

{¶51} Appellant only challenges the element of two or more violations or 

offenses pursuant to R.C. 2919.25(D)(4). He argues that, because the convictions in the 

prior criminal case are contained in a single judgment entry, they should be counted as 

only one violation or offense. 
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Case No. 19 CO 0001

{¶52} Appellant cites no case law in support of this argument. But appellant 

argues that the expungement statute, codified at R.C. 2953.31, treats multiple convictions 

contained in a single judgment entry as one conviction. The expungement statute states, 

in relevant part: 

When two or more convictions result from or are connected with the same 

act or result from offenses committed at the same time, they shall be 

counted as one conviction. When two or three convictions result from the 

same indictment, information, or complaint, from the same plea of guilty, or 

from the same official proceeding, and result from related criminal acts that 

were committed within a three-month period but do not result from the same 

act or from offenses committed at the same time, they shall be counted as 

one conviction[.] 

R.C. 2953.31(A)(1)(b). 

{¶53} Appellant’s reliance on the expungement statute lacks merit. As appellant 

points out, this statute applies to expunging criminal records. It does not apply to the 

issue appellant raises in this assignment of error. Viewing the evidence in the light most 

favorable to the prosecution, a grand jury indicted appellant in the prior criminal case with 

aggravated murder and intimidation of a witness or victim where the alleged victim in both 

offenses was appellant’s wife. Appellant was later convicted of involuntary manslaughter 

and intimidation of a witness or victim, with the victim being appellant’s wife. Because 

appellant has two prior violations or offenses where he was related to the victim and the 

prior violations or offenses are substantially similar to domestic violence, his conviction 

for domestic violence is supported by sufficient evidence. 

{¶54} Accordingly, appellant’s fourth assignment of error is without merit and is 

overruled. 

{¶55} Appellant’s fifth assignment of error states: 

 APPELLANT’S CONVICTIONS WERE AGAINST THE MANIFEST 

WEIGHT OF THE EVIDENCE. 
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Case No. 19 CO 0001

{¶56} Appellant argues that discrepancies in witnesses’ testimony, Hayes’ 

failure to appear for trial, the lack of trustworthiness regarding Hayes’ statements admitted 

at trial, and the inconclusiveness of Hayes’ injuries in the photographs submitted at trial 

render his domestic violence conviction as against the manifest weight of the evidence. 

Appellant also argues that the majority of evidence submitted at trial indicates that he did 

not knowingly possess cocaine. 

{¶57} 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 

jury 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, 386, 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, 678 N.E.2d 541. 

{¶58} Thompkins addressed a manifest weight argument in the context of a jury 

trial. But the standard of review is equally applicable when reviewing a manifest weight 

challenge from a bench trial. State v. Layne, 7th Dist. Mahoning No. 97 CA 172, 2000 

WL 246589, at *5 (Mar. 1, 2000). A reviewing court will not reverse a judgment as being 

against the manifest weight of the evidence in a bench trial where the trial court could 

reasonably conclude from substantial evidence that the state has proved the offense 

beyond a reasonable doubt. State v. Hill, 7th Dist. Mahoning No. 09-MA-202, 2011-Ohio6217, ¶ 49, citing State v. Eskridge, 38 Ohio St.3d 56, 59, 526 N.E.2d 304 (1988). 

{¶59} 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 (1st Dist.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. Belmont No. 04-BE-53, 2005-Ohio-6328, ¶ 49, citing State v. Hill, 75 Ohio St.3d 
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Case No. 19 CO 0001

195, 205, 661 N.E.2d 1068 (1996); State v. DeHass, 10 Ohio St.2d 230, 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. Mahoning No. 99-CA-149, 2002-Ohio-1152. 

{¶60} Beginning with appellant’s domestic violence conviction, he points to 

potential discrepancies in the trial testimony. First, appellant points out that Spann 

testified she did not see appellant choking Hayes. (Tr. 86, 96-97). But J.D., who walked 

into the house at the same time as Spann, testified that she did see appellant choking 

Hayes. (Tr. 132-134). 

{¶61} A review of the transcript shows that this is not a discrepancy. J.D. testified 

that she walked into the house first and Spann was behind her. (Tr. 135). Once Hayes 

moved to the couch, Spann then moved beside J.D. (Tr. 135). This accounts for why 

Spann did not see appellant choke Hayes but J.D. did. 

{¶62} Next, appellant argues that there is a discrepancy between J.D.’s trial 

testimony and a prior written statement from J.D. J.D.’s prior written statement was not 

admitted into evidence at trial and J.D.’s testimony about her prior written statement was 

limited: 

Q: All right. And, I believe, when you wrote your statement - - do you recall 

what you said in your statement? 

A: Yes. 

Q: Did you say that [appellant] was on top of [Hayes], pulling her hair, trying 

to take her money? 

A: Yes. 

Q: “Then she told me.” So you didn’t see anything else except him trying 

to get her money? 

A: Yes, I did. 

Q: So the statement is wrong? 
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Case No. 19 CO 0001

A: I seen his arm on her chest, on her throat. 

(Tr. 148-149). 

{¶63} The limited testimony about J.D.’s prior written statement is not sufficient 

to create a discrepancy with J.D.’s trial testimony. Moreover, to the extent there is a 

discrepancy, the trier of fact is in the best position to determine the credibility of the 

witnesses. Hill, 75 Ohio St.3d 195, 205. 

{¶64} Next, appellant argues that because Hayes did not testify at trial, his 

conviction is against the manifest weight of the evidence. The Eighth District decided a 

similar issue in State v. Smith, 8th Dist. Cuyahoga No. 107773, 2019-Ohio-2574. In 

Smith, Smith argued that his convictions for attempted murder, felonious assault, and 

domestic violence were against the manifest weight of the evidence, in part, because the 

victim did not testify at trial. Id. at ¶ 16-17. The Eighth District held that because the state 

presented other evidence, including eyewitness testimony, upon which the jury could find 

appellant guilty, his convictions were not against the manifest weight of the evidence. Id.

at ¶ 17. 

{¶65} In this case, several pieces of evidence were admitted at trial which 

indicates appellant attacked Hayes, including: Spann’s testimony that Hayes said 

appellant had choked her; J.D.’s testimony that she saw appellant choking Hayes; three 

photographs of Hayes’ injuries that were taken on the night of the offense; Officer Adkin’s, 

Spann’s and J.D.’s testimony that Hayes’ shirt had been stretched by the neck and ripped; 

and Officer Adkins’ testimony that he witnessed newer injuries on Hayes. Because the 

trial court had evidence that appellant committed domestic violence against Hayes, the 

lack of Hayes’ testimony does not render appellant’s conviction as against the manifest 

weight of the evidence. 

{¶66} Next, appellant argues that the inconclusiveness regarding Hayes’ injuries 

renders his conviction as against the manifest weight of the evidence. Appellant points 

to Officer Adkins’ testimony to support this argument. Officer Adkins testified that Hayes 

had some bruises on left side of her face and on the upper part of her chest. But Officer 

Adkins concluded that those bruises “were in the later stages of healing. [They] weren’t 

from that incident.” (Tr. 42). 
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Case No. 19 CO 0001

{¶67} Appellant argues that the only injury Officer Adkins attributed to a recent 

assault against Hayes was a red line or mark that was on the back of her neck. But this 

is not entirely accurate. Officer Adkins did notice newer bruises on Hayes. While Officer 

Adkins did not testify about how Hayes sustained the newer bruises, Hayes informed 

Officer Adkins about how she received the newer bruises, and that information caused 

“additional concern regarding the incident”. (Tr. 45). 

{¶68} Moreover, the new red line combined with the newer bruises, as well as 

testimony from Spann and J.D. that appellant choked Hayes, is sufficient to allow the trier 

of fact to reasonably conclude that appellant assaulted Hayes. 

{¶69} Appellant also argues that his possession of cocaine conviction was 

against the manifest weight of the evidence. After Officer Adkins instructed Officer 

Watkins to place appellant under arrest, Officer Watkins placed appellant in handcuffs 

and searched him. Officer Watkins searched appellant’s pockets, the area around his 

waist, and legs for “weapons or anything illegal.” (Tr. 59). At this time, Officer Watkins 

observed that appellant’s shoes were on properly and tied. 

{¶70} Officer Watkins then instructed appellant to enter the squad car through 

the rear passenger side door. When appellant placed his left foot inside the squad car, 

Officer Watkins noticed a burnt spoon on the passenger side floorboard. Officer Watkins 

then removed appellant from the squad car, removed the spoon, and searched the back 

of the squad car. Officer Watkins detected no other items inside the rear of the car and 

instructed appellant to enter the car. Officer Watkins transported appellant directly to the 

East Liverpool Police Department. 

{¶71} When they arrived at the East Liverpool Police Department, Officer 

Watkins instructed appellant to exit the car. Upon appellant exiting, Officer Watkins 

noticed appellant’s “left foot come out, and his shoe to be halfway on with his heel of the 

shoe smashed down, and his foot not to be all the way inside the shoe.” (Tr. 61). Officer 

Watkins transported appellant to a secure area inside the police department to conduct a 

secondary search. The secondary search revealed a white rock in appellant’s left shoe 

that was later determined to be cocaine. 

{¶72} Appellant argues that this conviction is against the manifest weight of the 

evidence because Officer Watkins did not inspect the back of his cruiser prior to 
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Case No. 19 CO 0001

appellant’s arrest. Officer Watkins testified that the East Liverpool police officers do not 

have dedicated or assigned squad cars. Officers typically have the opportunity to inspect 

the vehicles they use prior to beginning their shifts. Officer Watkins routinely inspects the 

vehicle he uses prior to beginning his shift but he did not do so on the night of appellant’s 

arrest. Appellant argues that this indicates a possibility that the cocaine was in Officer 

Watkins’ squad car prior to him entering the car and that is how the cocaine ended up in 

his shoe. 

{¶73} In this case, the officer searched the back seat prior to placing appellant 

in the squad car. Also, the observation that appellant’s shoes were on and tied 

appropriately when he was placed in the squad car combined with the fact that cocaine 

was found in his shoe reasonably supports the conclusion that appellant knew about the 

cocaine in his shoe. The argument that there may have been cocaine in the back of 

Officer Watkins’ squad car prior to him arresting appellant and said cocaine may have 

fallen into appellant’s shoe is not reasonable. Based on the foregoing, appellant’s 

convictions are not against the manifest weight of the evidence. 

{¶74} Accordingly, appellant’s fifth assignment of error is without merit and is 

overruled. 

{¶75} For the reasons stated above, the trial court’s judgment is hereby affirmed. 

Robb, J., concurs. 

D’Apolito, J., concurs.
[Cite as State v. Williams, 2020-Ohio-3359.]

 

 

For the reasons stated in the Opinion rendered herein, the assignments of error 

are overruled and it is the final judgment and order of this Court that the judgment of 

the Court of Common Pleas of Columbiana County, Ohio, is affirmed. Costs to be 

waived. 

A certified copy of this opinion and judgment entry shall constitute the mandate 

in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that 

a certified copy be sent by the clerk to the trial court to carry this judgment into 

execution. 

NOTICE TO COUNSEL 

This document constitutes a final judgment entry.