[Cite as State v. Davis, 2024-Ohio-3053.]

IN THE COURT OF APPEALS OF OHIO

THIRD APPELLATE DISTRICT

ALLEN COUNTY

STATE OF OHIO,

CASE NO. 1-24-13

 PLAINTIFF-APPELLEE,

v.

GLORIA J. DAVIS, O P I N I O N

 DEFENDANT-APPELLANT.

Appeal from Lima Municipal Court

Trial Court No. 23CRB02312

Judgment Affirmed

Date of Decision: August 12, 2024

APPEARANCES:

Chima R. Ekeh for Appellant

Joseph C. Snyder for Appellee
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WALDICK, J.

{¶1} Defendant-appellant, Gloria Davis (“Davis”), brings this appeal from 

the January 8, 2024 judgment of the Lima Municipal Court sentencing her to 10 

days in jail after she was convicted in a bench trial of Assault. On appeal, Davis 

argues that there was insufficient evidence presented to convict her, that her 

conviction was against the manifest weight of the evidence, and that she received 

ineffective assistance of counsel. For the reasons that follow, we affirm the 

judgment of the trial court.

Background

{¶2} On November 8, 2023, Davis was charged with Assault in violation of 

R.C. 2903.13(A), a first degree misdemeanor. It was alleged that she slapped a 

Domino’s employee after her order was incorrect. 

{¶3} Davis pled not guilty to the charge and proceeded to a bench trial. The 

victim testified at trial and surveillance footage of the incident at Domino’s was 

introduced into evidence. Ultimately the trial court found Davis guilty as charged. 

{¶4} As a result of her actions, Davis was sentenced to serve 10 days in jail. 

A judgment entry memorializing her conviction and sentence was filed January 8, 

2024. It is from this judgment that Davis appeals, asserting the following 

assignments of error for our review.
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First Assignment of Error

Appellant’s conviction for Assault was not supported by legally 

sufficient evidence.

Second Assignment of Error

Appellant’s conviction for Assault was against the manifest 

weight of the evidence.

Third Assignment of Error

Appellant was denied the effective assistance of counsel.

First Assignment of Error

{¶5} In her first assignment of error, Davis argues that there was insufficient 

evidence presented to convict her.

Standard of Review

{¶6} “Whether the evidence is legally sufficient to sustain a verdict is a 

question of law.” State v. Thompkins, 1997-Ohio-52; State v. Groce, 2020-Ohio6671, ¶ 6. Therefore, our review is de novo. In re J.V., 2012-Ohio-4961, ¶ 3. In a 

sufficiency-of-the-evidence inquiry, the question is whether the evidence presented, 

when viewed in a light most favorable to the prosecution, would allow any rational 

trier of fact to find the essential elements of the crime beyond a reasonable doubt. 

State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus (superseded 

by constitutional amendment on other grounds as stated in State v. Smith, 80 Ohio 

St.3d 89, 102, (1997), fn. 4) following Jackson v. Virginia, 443 U.S. 307 (1979). 

“In essence, sufficiency is a test of adequacy.” Thompkins at 386.
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Controlling Statute

{¶7} Davis was convicted of Assault in violation of R.C. 2903.13(A), which 

reads: “No person shall knowingly cause or attempt to cause physical harm to 

another[.]”

Evidence Presented

{¶8} On November 1, 2023, Jonathan T. (“Jonathan”) was working four p.m. 

to midnight at Domino’s Pizza in Lima. While Jonathan was working, Davis called 

and placed an order. Davis attempted to order “specialty wings,” meaning that the 

wings would have special toppings on them, but she wanted the wings to be bonein. Jonathan told Davis that Domino’s did not serve specialty bone-in wings, and 

Davis said “that was fine.” (Tr. at 4). Davis’s order was prepared and delivered to 

her residence.

{¶9} After Davis’s order was delivered, she called Domino’s to state that the 

order was wrong because she wanted specialty bone-in wings. Jonathan asked his 

manager if they should remake Davis’s order and the manager said yes. The order 

was remade and again delivered to Davis. Once she received the new order, Davis 

called Domino’s again and stated her order was wrong. Jonathan had Davis talk to 

his manager, and the decision was made not to remake Davis’s order again. Davis 

called back multiple times and was put on hold once and ignored other times.

{¶10} Shortly thereafter, Davis drove to Domino’s and parked directly in 

front of the store’s entrance. Davis entered Domino’s holding the box of wings and 
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a cell phone. She placed the box of wings on the counter. Davis complained to 

Jonathan about her food and Jonathan informed her that she wanted something that 

Domino’s did not offer. Jonathan told Davis that she would get a refund, but 

Domino’s was not going to remake her order a third time. 

{¶11} Davis became aggressive, gesturing as she talked and pounding on the 

counter. Davis slapped the box of wings she had placed on the counter, overturning 

the food inside it. Then she extended her arm with her phone in her hand and slapped 

Jonathan. Davis’s hand also hit the monitor attached to the register. Jonathan stated 

that he was hit under his left breast, and that it hurt, but he was able to continue his 

shift.

{¶12} Davis dropped her phone when she slapped Jonathan and it fell in the 

area behind the register. She attempted to get her phone but she was blocked from 

going behind the register by Jonathan because Jonathan did not know she had 

dropped her phone. Around this time, a Domino’s delivery driver came inside, 

retrieved Davis’s phone for her, and Davis was told to leave the store.

{¶13} Law enforcement officers responded to the scene and spoke with 

Jonathan and Davis. When an officer spoke with Davis, she claimed that Jonathan 

had smacked the phone out of her hand and that was the reason she hit him. The 

officer watched Domino’s surveillance footage and determined that Davis was lying

as it was clear that Jonathan never hit or attempted to hit Davis. The surveillance 

footage from multiple angles was introduced into evidence.
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Analysis

{¶14} Davis contends that the evidence was insufficient to establish beyond 

a reasonable doubt that she knowingly caused or attempted to cause physical harm 

to Jonathan. More specifically, she argues that there was no physical manifestation 

of harm to Jonathan such as a bruise. She also contends that there was no evidence 

that she was attempting to cause physical harm to Jonathan when she swung at him.

{¶15} In support of her argument, Davis cites State v. Kemper, 2012-Ohio5958 (12th Dist.). In Kemper, a divided panel reversed a misdemeanor assault 

conviction where the defendant shoved past the victim to enter a bedroom. The 

Twelfth District Court of Appeals reasoned that while a shove could satisfy the 

physical harm element of assault, the shove had to be paired with the intent to cause 

physical harm. The Twelfth District determined that “there is insufficient evidence 

to establish that Kemper was aware that placing his hands on [the victim’s] shoulder 

to move her aside would probably cause a certain result, mainly physical harm.” 

Kemper at ¶ 17.

{¶16} Kemper is readily distinguishable from the case sub judice. The crucial 

difference between this case and the divided Kemper opinion is that Jonathan 

testified that he was hit in the chest by Davis’s hand with her phone in it, and that it 

“hurt a little bit.” (Tr. at 10). Courts have repeatedly held that “the slightest injury 

is enough proof of physical harm.” E.G. State v. Bailey, 2023-Ohio-1267, ¶ 20. 
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Further, a physical manifestation of injury is specifically not necessary for finding 

that the offender caused physical harm. Id.

{¶17} Moreover, Davis deliberately swung her arm at Jonathan with her cell 

phone in her hand. A person acts “knowingly” when she is aware that her conduct 

will probably cause a certain result. R.C. 2901.22(B). When viewing the evidence 

in the light most favorable to the State, we can only determine that swinging directly 

at another individual is likely to cause physical harm such that a reasonable 

factfinder could determine beyond a reasonable doubt that Davis acted knowingly.

{¶18} Finally, the trial court noted that even if it did not find physical harm 

here, Davis still swung at Jonathan and this could be considered an attempt to cause 

physical harm under R.C. 2903.13(A). When viewing the evidence in the light most 

favorable to the State as directed, we agree.

{¶19} Having reviewed the record in its entirety, we find that there was not 

insufficient evidence presented to convict Davis of Assault. Therefore her first 

assignment of error is overruled.

Second Assignment of Error

{¶20} In her second assignment of error, Davis argues that even if there was 

sufficient evidence presented to convict her of Assault, her conviction was against 

the manifest weight of the evidence.

Standard of Review
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{¶21} In reviewing whether a verdict was against the manifest weight of the 

evidence, the appellate court sits as a “thirteenth juror” and examines the conflicting 

testimony. State v. Thompkins, 1997-Ohio-52. In doing so, this court must review 

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

the credibility of witnesses and determine whether in resolving conflicts in the 

evidence, the factfinder “clearly lost its way and created such a manifest miscarriage 

of justice that the conviction must be reversed and a new trial ordered.” Id. 

{¶22} Nevertheless, a reviewing court must allow the trier-of-fact 

appropriate discretion on matters relating to the credibility of the witnesses. State v. 

DeHass, 10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight 

standard, “[o]nly in exceptional cases, where the evidence ‘weighs heavily against 

the conviction,’ should an appellate court overturn the trial court’s judgment.” State 

v. Haller, 2012-Ohio-5233, ¶ 9 (3d Dist.), quoting State v. Hunter, 2011-Ohio-6524, 

¶ 119.
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Analysis

{¶23} Davis argues that even if there was sufficient evidence presented to 

convict her of Assault, her conviction was against the manifest weight of the 

evidence. She argues that the State’s version of the event was full of inconsistencies. 

In addition, she argues that there was no evidence that Jonathan suffered any 

injuries.

{¶24} First, as stated in the prior assignment of error, no physical 

manifestation of an injury is required to sustain a conviction under R.C. 2903.13(A). 

Regardless, Jonathan testified that Davis hit him and it hurt. There is no 

contravening evidence in the record, thus we do not find that the trial court clearly 

lost its way by accepting Jonathan’s testimony.

{¶25} Second, while Davis may claim that the State’s case was “full of 

inconsistences,” the actual testimony was simple and straightforward and 

corroborated by the surveillance footage. A trial court’s finding of guilt is not 

against the manifest weight of the evidence because the trial court elected to believe 

the State’s witnesses. State v. Green, 2023-Ohio-4360, ¶ 136 (3d Dist.).

{¶26} After reviewing the record, we do not find that this is one of the 

exceptional cases where the evidence weighs heavily against the conviction. 

Therefore, Davis’s second assignment of error is overruled.
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Third Assignment of Error

{¶27} In her third assignment of error, Davis argues that she received 

ineffective assistance of trial counsel.

Standard of Review

{¶28} A defendant asserting a claim of ineffective assistance of counsel must

establish: (1) the counsel’s performance was deficient or unreasonable under the 

circumstances; and (2) the deficient performance prejudiced the defendant. State v. 

Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668, 

687, 104 S.Ct. 2052 (1984). The failure to prove either prong is fatal. State v. 

Madrigal, 87 Ohio St.3d 378, 389, 2000–Ohio–448. In the event of deficient or 

unreasonable performance, prejudice results when “‘there is a reasonable 

probability that, but for counsel’s unprofessional errors, the result of the proceeding 

would have been different.’” State v. Bradley, 42 Ohio St.3d 136, 142 (1989), 

quoting Strickland at 694; see also, State v. Davis, 159 Ohio St.3d 31, 2020-Ohio309. 

Analysis

{¶29} Davis argues that her trial counsel was ineffective because she was not 

aware that she had the opportunity to testify at trial. She also contends that when 

she attempted to speak at trial, defense counsel “shushed” her.
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{¶30} There is simply no basis in the record for either of Davis’s claims. The 

trial transcript does not reflect any misunderstanding of Davis regarding her ability 

to testify. There is also no indication that Davis was ever “shushed” by her attorney.

{¶31} When allegations of ineffective assistance of counsel hinge on facts 

not in the record, the proper remedy is a petition for postconviction relief. State v. 

Sowell, 2020-Ohio-2938 (8th Dist.). Here, there is nothing for us to review that 

would support Davis's claims that her trial counsel was ineffective. Therefore, her 

third assignment of error is overruled.

Conclusion

{¶32} Having found no error prejudicial to Davis in the particulars assigned 

and argued, her assignments of error are overruled and the judgment of the Lima 

Municipal Court is affirmed.

Judgment Affirmed

WILLAMOWSKI, P.J. and ZIMMERMAN, J., concur.

/jlm