[Cite as State v. Varouh , 2020-Ohio-528.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )
STATE OF OHIO Appellee

v. CHRISTOPHER VAROUH Appellant C.A. No. 18CA011415

APPEAL FROM JUDGMENT ENTERED IN THE OBERLIN MUNICIPAL COURT COUNTY OF LORAIN, OHIO CASE No. 17CRB00784
DECISION AND JOURNAL ENTRY Dated: February 18, 2020

HENSAL, Judge. {¶1} Christopher Varouh appeals his c onvictions in the Oberlin Munic ipal Court. For the following reasons, this Court affirms.
I. {¶2} Mr. Varouh’s ex-wife called the Lorain County Sheriff’s Departm ent after she received a telephone call from Mr. Varouh’s then girlfriend and learned that the daughter she had with Mr. Varouh could be in dange r. A deputy who responded to Mr. Varouh’s address found that Mr. Varouh’s girlfriend had red marks and bruises on her f ace, neck, and arm. After talking to the girlfriend, the deputy charged Mr. Varouh with one count of domestic violence, one count of assault, and one count of aggra vated menacing, all of which were misdemeanors of the first degree. {¶3} The case proceeded to a bench trial. On the day of trial, Mr. Varouh’s girlfriend did not appear. After initially requesting a continuance, the State decided to go ahead with the2 trial, calling the deputy and Mr . Varouh’s ex-wife as witnesses . When the State rested, Mr. Varouh moved for a judgment o f acquittal under Criminal Rule 29 . After listening to the arguments of both sides, the municipal court requested written briefs. In its brief, the State conceded that it had not met its burden with respect to the dom estic violence and aggravated menacing offenses but requested a hearing on whether statements the girlfriend had made to the deputy and Mr. Varouh’s ex-wife should have been admissible wit h respect to the aggravatedmenacing charge. {¶4} The trial court construed the State’s request for a hearing as a motion to reopen its case, which it granted. Mr. Varouh subsequently moved for the trial judge to recuse himself and moved for a trial by jury. The court denied Mr. Varouh’s motio ns and scheduled a date for the reopening of the trial. Following the testimony of the girlfri end and additional testimony of the deputy and the ex-wife, the tri al court found Mr. Varouh guilty of the offenses. At sentencing, it merged the assault offense into the domestic violence offense a nd sentenced Mr. Varouh to 180 days in jail on both of the remai ning counts. Mr. Varouh has a ppealed, assigning six errors, which we have rearranged and com bined to facilitate their dispo sition.
II. ASSIGNMENT OF ERROR II
THE TRIAL COURT ABUSED ITS DISCRETION BY ALLOWING THE STATE TO REOPEN ITS CASE AFTER RESTING FOLLOWING THE MOTION FOR ACQUITTAL. {¶5} Mr. Varouh argues that the trial court abused its discretion wh en it allowed the State to reopen its case after he moved for a judgment of acqui ttal under Criminal Rule 29(A). Revised Code Section 2945.10 sets f orth the order of proceeding s for criminal trials but indicates that “[t]he court may deviate from the order of proceedings lis ted in this section.” R.C.3 2945.10(G). Construing that provision, the Ohio Supreme Court has held that “[a]ny decision to vary the order of proceedings at trial in R.C. 2945.10 is withi n the sound discretion of the trial court, and any claim that the trial court erred in following th e statutorily mandated order of proceedings must sustain a heavy burden to demonstrate the unfa irness and prejudice of following that order.” State v. Bayless , 48 Ohio St.2d 73 (1976), paragraph th ree of the syllabus. {¶6} One of the variations that a trial court may allow is for the S tate to reopen its case after the defendant has moved for a judgment of acquittal. State v. Pertee , 9th Dist. Wayne No. 95CA0033, 1995 WL 688800, *2 (Nov. 22, 1995). Consistent with Bayless , this Court has held that “[a] trial court’s decision to allow the State to reopen its ca se following a defendant’s Rule 29 motion for acquittal will not be reversed absent an abuse of discretion.” State v. Mathis , 9th Dist. Summit No. 23507, 2007-Ohio-2345, ¶ 5. “Under this stand ard, we must determine whether the trial court’s decision was arbitrary, unreasonable, or unconscionable.” State v.
Hilton , 9th Dist. Wayne No. 09CA0036, 2010-Ohio-1923, ¶ 7, citing Blakemore v. Blakemore , 5 Ohio St.3d 217, 219 (1983). {¶7} In its written response to Mr. V arouh’s motion to dismiss, the State noted that the evidence it had admitted on the aggravated menacing charge was “insufficient to prove the charge[.]” It explained that the victim’s out-of-court stateme nts were critical to proving the charge, and agreed with Mr. Varouh that those statements were p rohibited from being introduced under Crawford v. Washington , 541 U.S. 36, 53-54 (2004). Although noting that there were exceptions to Crawford , it explained that the victim’s statements could not be analyz ed to determine whether they fell within an exception because they we re not allowed into evidence. Instead of conceding that the victim’s statements could not fal l within an exception to Crawford ,4 however, the State “request[ed] that the Court hold a special h earing to determine if the statements meet the exception laid out in Ohio v. Clark .” {¶8} The trial court construed the State’s request for a hearing as a motion to re-open its case. Mr. Varouh does not arg ue that the court’s interpret ation of the request was unreasonable. The trial court wr ote in its entry that it was “ in the interest of justice” to re-open the case “for the limited purpose of recalling [Mr. Varouh’s ex -wife] to inquire of her any statements made to her by her daughter and by the alleged victi m and recalling the Deputy to inquire of statements made by the alleged victim.” When the ca se re-opened, however, the trial court did not proceed on that limi ted course. Instead, the tri al court essentially began the trial anew, allowing the State to ca ll Mr. Varouh’s girlfriend, even though the State had previously chosen to go forward without her testimony. It also imposed no limits on the scope of the State’s examination of the deputy and ex-wife. {¶9} Mr. Varouh argues that the tria l court incorrectly allowed the State to deviate from the limited purpose of its requested hearing and, instead, “permit[ted] the State to prove every element of each offense[.]” We note, however, that, afte r the State presented its additional evidence, Mr. Varouh’s counsel mad e a “point of reference” and noted that he had not objected to the State’s calling of Mr. V arouh’s girlfriend. When the co urt asked Mr. Varouh’s counsel what he meant, counsel reminded th e court that it “had said [th e State] could call the two witnesses [called at the original trial] * * * to establish whe ther or not Crawford was in fact applicable * * *[a]nd whether or not there was an excited utter ance issue.]” Defense counsel explained that he recognized tha t he could have objected to “[t ]he State calling [Mr. Varouh’s girlfriend]” because it was beyond the scope of the trial court ’s order. He specifically explained, however, that he had decided that he was “not going to object” because he knew that Mr.5 Varouh’s girlfriend had “recanted her story” before the hearing . Thus, in the estimation of Mr. Varouh’s counsel, the calling of Mr. Varouh’s girlfriend by the State “actually worked out to [Mr. Varouh’s] benefit.” {¶10} Because Mr. Varouh did not object to the trial c ourt’s deviatio n from its order regarding the scope of the reopene d trial, we conclude that he has forfeited his argument for purposes of appeal. State v. Payne , 114 Ohio St.3d 502, 2007-Ohio-4642, ¶ 23; Evid.R. 103(A)(1). While he made still argue plain error, “this court will not sua sponte undertake a plain-error analysis if a defendant fails to do so.” State v. Cross , 9th Dist. Summit No. 25487, 2011-Ohio-3250, ¶ 41. {¶11} Upon review of the record, and in light of our precedent, we are compelled to conclude that Mr. Varouh has not established that the trial cou rt exercised improper discretion when it allowed the State to re-open its case. Mr. Varouh’s se cond assignment of error is overruled.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED WHEN IT DENIED THE CRIMINAL RULE 29 MOTIONS AS VENUE/JURISDICTION AND THE ELEMENTS OF EACH CRIME WERE NOT PROVED BEYOND A REASONABLE DOUBT.
ASSIGNMENT OF ERROR III
APPELLANT’S CONVICTION WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE IN VIOLATION OF ARTICLE IV, SECTION 3 OF THE OHIO CONSTITUTION[.] {¶12} In his first assignment of error, Mr. Varouh argues that the St ate failed to prove that the alleged offenses occurred within the jurisdiction of t he municipal court. In his first and third assignments of error, he a lso argues that his convictions were not supported by sufficient evidence and that the court shoul d have granted his motion for judgment of acquittal under Rule6 29(A). Under Rule 29(A), a defendant is entitled to a judgment of acquittal on a charge against him “if the evidence is insufficient to sustain a conviction * * *.” Crim.R. 29(A). Whether a conviction is supported by sufficient evidence is a question of law, which we review de novo. State v. Thompkins , 78 Ohio St.3d 380, 386 (1997). In making this determination, we must view the evidence in the light mos t favorable to the prosecution: An appellate court’s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitt ed at trial to determine whether such evidence, if believed, would convince th e average mind of the defendant’s guilt beyond a reasonable doubt. The releva nt inquiry is whether, after viewing the evidence in a light most favorable t o the prosecution, any rational trier of fact could have found the essential eleme nts of the crime proven beyond a reasonable doubt.
State v. Jenks , 61 Ohio St.3d 259 (1991), paragrap h two of the syllabus. {¶13} Although venue is not a material element of a criminal offense, the State must prove it beyond a reasonable doubt unless it is waived by the d efendant. State v. Patterson , 9th Dist. Lorain No. 16CA011035, 2017-Ohio-8196, ¶ 17. We note, ho wever, that, if a defendant does not make a specific objection to venue before the trial co urt, he forfeits all but plain error.
Id . at ¶ 16. Mr. Varouh did not object in the trial court that t he municipal court was not the proper venue for the alleged offenses. He, therefore, has forf eited his argument for appellate review. Id . Mr. Varouh has not alleged that the error was plain, and we decline to develop an argument for him. Cross , 2011-Ohio-3250, at ¶ 41. {¶14} Regarding whether the trial court incorrectly denied his motion for judgment of acquittal, we note that, because the court allowed the State to reopen its case, it did not rule on Mr. Varouh’s motion until after the State presented all of its additional evidence. In order to convict Mr. Varouh of domestic vio lence, the State had to prove that he knowingly caused or attempted to cause physical harm to a family or household membe r. R.C. 2919.25(A). In order7
to convict him of assault, it ha d to prove that he knowingly ca used or attempted to cause physical harm to another. R.C. 2903.13(A). In order to convict him of aggravated menacing, it had to prove that Mr. Varouh “knowingly cause[d] another to believe th at the offender will cause serious physical harm to the pers on or property of the other pe rson * * * or a member of the other person’s immediat e family.” R.C. 2903.21(A). {¶15} Mr. Varouh’s girlfriend testified that she lived with Mr. Varou h at the time of the alleged offenses. The deputy te stified that, when he saw Mr. V arouh’s girlfriend, he immediately noticed that she had a bruise on her bicep. When h e asked where she had gotten it, she said that Mr. Varouh had grabbed her. The girlfriend went on to explain to him that a red mark on her cheek was from a slap by Mr. Varouh and that a mark on her temple was from when he slammed her into a kitchen cabinet. Mr. Varouh’s ex-wife te stified that, when his girlfriend initially called, she said that Mr . Varouh was high on cocaine, that he had beaten her up throughout the day, and that she d id not believe it was a safe place for the child because she suspected that Mr. Varouh was going to try to kill her. Mr. Va rouh’s girlfriend went on to explain that Mr. Varouh had alre ady beaten her with a broom, ch oked her, and put a gun to her head. She also said that she ha d locked herself in her bedroom away from Mr. Varouh. {¶16} Mr. Varouh argues that some of the testimony should not have be en admitted because it was hearsay that did not meet the requirements of an excited utterance. He also argues that some of the evidence that was admitted did not have an ade quate foundation to be authenticated. These arguments , however, fall outside the scop e of his stated assignments of error. Because Mr. Varouh has not separately assigned as error that the trial court incorrectly admitted evidence, we decline to a ddress Mr. Varouh’s arguments regarding whether evidence8 was improperly admitted. State v. Bennett , 9th Dist. Lorain No. 14CA010579, 2015-Ohio-2887, ¶ 13; App.R. 16(A)(7). {¶17} Viewing the testimony of the witnesses in a light most favorabl e to the State, we conclude that there was evidence that Mr. Varouh knowingly caus ed physical harm to a household member, which is sufficient to uphold his convictions for domestic violence and assault. There was also evidence that he knowingly caused anot her to believe that he would cause serious physical harm to her, which is sufficient to upho ld his conviction for aggravated menacing. The trial court, therefore, did not err when it deni ed his motion for judgment of acquittal under Rule 29(A). Mr. V arouh’s first and third assig nments of error are overruled.
ASSIGNMENT OF ERROR IV
APPELLANT’S CONVICTION WAS NOT SUPPORTED BY THE MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION OF ARTICLE IV, SECTION 3 OF THE OHIO CONSTITUTION. {¶18} Mr. Varouh next argues that his convictions are against the man ifest weight of the evidence. If a defendant asserts that his convictions are agai nst the manifest weight of the evidence, an appellate court must review the entire record, weigh the evi dence and all reasonable inferences, consider the credibility of witnesses an d determine whether, in resolving conflicts in the evidence, the trier of f act clearly lost its way and created such a manifest miscarriage of justice that the con viction[s] must be reversed and a new trial ordered.
State v. Otten , 33 Ohio App.3d 339, 340 (9th Dist.1986). Weight of the evide nce pertains to the greater amount of credible evidence produced in a trial to supp ort one side over the other side. Thompkins , 78 Ohio St.3d 380, at 387. An appellate court should only ex ercise its power to reverse a judgment as against th e manifest weight of the eviden ce in exceptional cases. State v.
Carson , 9th Dist. Summit No. 26900, 2013-Ohio-5785, ¶ 32, citing Otten at 340.9
{¶19} Mr. Varouh notes that his former girlfriend explained during he r testimony that she only said what she said to the deputy and Mr. Varouh’s ex-w ife because she found out he had been seeing an ex-girlfriend. She initially told Mr. Varou h’s ex-wife earlier in the day that it might not be the best day for the daughter to be in the home be cause Mr. Varouh and she had been arguing a lot. When Mr. Varouh returned from picking up h is daughter, she was unable to refrain from continuing the arg ument. She told Mr. Varouh that she was going to leave him, but he said that he did not care, so she decided to get him arreste d by saying that he had hit her. The girlfriend also explained that , although the marks on her body were caused by Mr. Varouh, it was from violent consensual sexual activity that they had engaged i n earlier that day. She admitted that her tear tracks were authentic because she had been crying because Mr. Varouh had cheated on her. The girlfriend further testified that Mr. Varouh’s ex- wife knew about her plan and agreed to it because she wanted f ull custody of her daughter. {¶20} Mr. Varouh argues that his former girlfriend did not have any m otive to lie at trial because she had long since broken up with him and moved on with her life and had not even seen him since the day of his arrest. She did not need him for emotional or financial support, and they did not share any children. He also notes that she risked a perjury charge if she lied under oath at trial. He argues that, if you look at the deputy’s tes timony about his conversation with the girlfriend, she was more focused on Mr. Varouh’s cheating t han any injuries she had suffered. She also refused medical treatment. He further argu es that, even though Mr. Varouh’s ex-wife admitted that the girlfriend called her and told her ab out the fighting at Mr. Varouh’s house before Mr. Varouh and she met her to exchange their daugh ter, she still allowed Mr. Varouh to take the daughter and merely told the girlfriend to c all her if they started fighting again.10
{¶21} Although Mr. Varouh’s ex-wife recounted a number of details of the fight that the girlfriend relayed to her, it is not clear from the ex-wife’s t estimony whether she learned those details during their first or s econd conversation. Regarding w hether Mr. Varouh’s girlfriend’s testimony was credible, we recognize that “the trial court was in the best position to observe the witnesses’ demeanor and to ‘use t h[o]se observations to weigh t he credibility [of the witnesses] and resolve the conflicts in the testimony.’” State v. Robinson , 9th Dist. Wayne No. 18AP0045, 2019-Ohio-3613, ¶ 10, quoting State v. Andrews , 9th Dist. Summit No. 25114, 2010-Ohio-6126, ¶ 28. Upon review of the record, we cannot say that the trial court lost its way when it chose to believe what Mr. Varouh’s former girlfriend told the deputy and his ex-wife on the day of the incident over what she testified to in court. We conclude that this is not the exceptional case where the evidence weighs heavily against Mr. Varouh’s convicti ons. Mr. Varouh’s fourth assignment of error is overruled.
ASSIGNMENT OF ERROR V
THE TRIAL COURT ERRED IN FAILING TO GIVE DEFENDANTAPPELLANT A TRIAL BY JURY. {¶22} Mr. Varouh next argues that the trial court incorrectly denied his right to a jury trial, which he demanded after the court allowed the State to r e-open its case. He argues that, because the trial court essentially allowed the State to start its case over, he should have been able to have the new case heard by a jury, especially because h e made his request approximately 60 days before the second trial date. {¶23} Criminal Rule 23(A) provides that, “[i]n petty offense cases, w here there is a right of jury trial, the defenda nt shall be tried by the court unless he demands a jury trial.” A demand for jury trial “must be in writing and filed with the cl erk of court not less than ten days11 prior to the date set for trial * * *.” Crim R. 23(A). “Failu re to demand a jury trial as provided in this subdivision is a complete waiver of the right thereto.” Id

. {¶24} At the time Mr. Varouh demanded a jury trial, the trial court h ad not ordered a complete restart of the trial. Instead, it had ordered the Sta te’s case re-opened “for the limited purpose of recalling [Mr. Varouh’s ex-wife] to inquire of her a ny statements made to her by her daughter and by the alleged victim and recalling the Deputy to inquire of statements made by the alleged victim.” Although the State ended up calling an additi onal witness, it was not until after the trial court denied Mr. Var ouh’s jury demand. As this Court explained earlier, Mr. Varouh’s counsel stated at trial that he d id not object to the expansion of the State’s re-opened case because it worked to Mr. Varouh’s benefit. {¶25} Upon review of the record, we c onclude that, because the court did not order a completely new trial following the State’s request for a hearin g, the court’s order did not renew Mr. Varouh’s right to demand a j ury trial under Rule 23(A). Th e trial court, therefore, did not err when it denied Mr. Varouh’s ju ry demand. Mr. Varouh’s fifth as signment of error is overruled.
ASSIGNMENT OF ERROR VI
THE TRIAL COURT ERRED WHEN IT DID NOT RECUSE ITSELF. {¶26} Mr. Varouh’s final argument is th at the trial court incorrectly failed to recuse itself after it allowed the State to re-open its case. He argu es that the trial court demonstrated its lack of independence by giving the novice prosecutor pages of i nstructions regarding hearsay instructions, confrontation cla use issues, eliciting testimony from witnesses, and avoiding objections. He contends that the court went so far as to give examples to the prosecutor of how she should have questione d the witnesses.12
{¶27} Section 2701.031 provides that, “[i] f a judge of a municipal * * * court * * * allegedly is related to or has a bias or prejudice for or again st a party to a proceeding pending before the judge * * * any party to the proceeding or the party ’s counsel may file an affidavit of disqualification with the clerk of the supreme court.” It is t he exclusive means by which a litigant may assert that a municipal court judge is biased or p rejudiced. State v. Hunter , 151 Ohio App.3d 276, 2002-Ohio-7326, ¶ 17 (9th Dist.) Interpreting the language of Section 2701.031, we have determined that th is Court has “no authority to render a decision with regard to disqualification * * * or to void a trial court’s judgment o n the basis of personal bias or prejudice on the part of the trial judge.” Id . at ¶ 18. Consequently, we conclude that we are unable to address the merits o f Mr. Varouh’s argument. State v. Polke , 9th Dist. Medina No. 18CA0061-M, 2019-Ohio-904, ¶ 7. Mr. V arouh’s sixth assignment of error is overruled.
III. {¶28} Mr. Varouh’s assignments of erro r are overruled. The judgment of the Oberlin Municipal Court is affirmed. Judgment affirmed.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Oberlin Municipal Court, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t of Appeals at which time the13 period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the pa rties and to make a notation of the mailing in the docket , pursuant to App.R. 30. Costs taxed to Appellant.

JENNIFER HENSAL FOR THE COURT

SCHAFER, J. CONCURS. CALLAHAN, P. J. DISSENTING. {¶29} I disagree with the majority’s conclusion that the trial court did not abuse its discretion by allowing the State to reopen its case after Mr. V arouh moved for a judgment of acquittal under Crim.R. 29(A). For that reason, I respectfully dissent. {¶30} I recognize that this Court and others have concluded that a tr ial court may exercise its discretion to regulate proceedings by permitting t he State to reopen its case after a defendant has moved for a judgment of acquittal. One court, fo r example, has concluded that the decision to do so is not an abuse of discretion when the trial court permits a witness who has already testified to clarify a point with reference to demonstr ative aids. State v. Salaam , 1st Dist. Hamilton No. C-020324, 2003-Ohio-1021, ¶ 9-10, 13-14. Ot hers have reached the same result when the trial court allowed the State to offer testimon y regarding the degree of an offense, when all of the element s of the offense were establish ed in the case-in-chief and the evidence is readily at hand. State v. Roberson, 8th Dist. Cuyahoga No. 88215, 2007-Ohio-1981,14
¶ 28-29; State v. Gaskins , 3d Dist. Seneca No. 13-04-12, 2004-Ohio-5427, ¶ 13-20. The d ecision to reopen the State’s case to permit an officer to accurately i dentify a photograph referenced during his testimony is not an abuse of discretion because “the circumstances causing the need for the further presentation of evidence * * * were nothing mor e than a tendency for human error during the process of reading letters, numbers, and symbols on the back of 26 consecutive images.” State v. Steele , 12th Dist. Butler No. CA2003-11-276, 2005-Ohio-943, ¶ 140. Similarly, this Court has concluded that a trial court does not abuse its discretion by permitting the State to reopen its case based on a misunderstanding about the scope of a stipulation. State v.
Austin , 9th Dist. Summit No. 16239, 1993 WL 525874, * 1-2 (Dec. 8, 19 93). {¶31} This case is different. The trial court’s decision to allow th e State to reopen its case did not accommodate correc tion of a misunderstanding, perm it the clarification of prior testimony, or assist in the identification of an exhibit. In t his case, the State simply did not frame the police officer’s direct examination in accord with Crawford v. Washington , 541 U.S. 36 (2004), Melendez–Diaz v. Massachusetts , 557 U.S. 305 (2009), and Davis v. Washington , 547 U.S. 813, 821 (2006). See generally State v. Doss , 9th Dist. Wayne No. 18AP0027, 2019-Ohio436, ¶ 4-12 (discussing the appli cation of the Confrontation Cl ause in the context of domestic violence cases). “Crim.R. 29 is a means by which a defendant i n a criminal case moves the court for a judgment of acquittal at the close of either the state’s evidence or at the close of the trial. It is not a vehicle by which the defense informs the State of fata l deficiencies in its case, so that it can have a second bite at the apple.” State v. Nerren , 9th Dist. Wayne No. 05CA0052, 2006- Ohio-2855, ¶ 28 (Moore, J., concurring)

. {¶32} Although I agree with the majority’s observation that defense c ounsel made a strategic decision not to object to the testimony of Mr. Varouh ’s girlfriend once the reopened15 proceeding commenced, I believe that it was error for the proce eding to have been reopened in the first place. For this reason, I do not agree that Mr. Varo uh has forfeited his argument for purposes of appeal, and I would s ustain his second assignment o f error. {¶33} I respectfully dissent.

APPEARANCES: JACK W. BRADLEY, Attorney at Law, for Appellant. FARAH EMEKA, Prosecuting Attorney, for Appellee.