[Cite as State v. Terry, 2023-Ohio-3131.]

Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: September 6, 2023

Emily Smart Woerner, City Solicitor, William T. Horsley, Chief Prosecuting 

Attorney, and Joseph Otero, Assistant Prosecuting Attorney, for PlaintiffAppellee,

Raymond T. Faller, Hamilton County Public Defender, and Krista Gieske, 

Assistant Public Defender, for Defendant-Appellant.

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

STATE OF OHIO,

Plaintiff-Appellee,

vs.

TREVON TERRY,

Defendant-Appellant.

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APPEAL NO. C-230049

TRIAL NO. 22CRB-20250

O P I N I O N.
OHIO FIRST DISTRICT COURT OF APPEALS

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WINKLER, Judge.

{¶1} Following a bench trial in municipal court, defendant-appellant 

Trevon Terry was convicted of one misdemeanor count of domestic violence in 

violation of R.C. 2919.25(A). He has appealed that conviction, arguing that a 

cell-phone video recorded immediately after the incident, which depicts Terry 

holding a knife, was improperly admitted, that his conviction was based on 

insufficient evidence and that his conviction was against the manifest weight of 

the evidence. For the reasons set forth below, we affirm Terry’s conviction.

Facts and Procedural History

{¶2} On November 27, 2022, Trevon Terry and Kiara Winfield were 

arguing over the end of their two-year romantic relationship, where they shared 

a three-year-old boy. The couple had been exchanging heated text messages 

earlier that day, and Winfield asked Terry to leave their shared apartment. 

Around 5:00 p.m., Winfield returned from work to their apartment and found 

Terry still packing his belongings. The text-message argument quickly 

restarted in person. The argument escalated when Terry took the only 

television, which originally belonged to Terry’s mother. While arguing, the two 

“got in one another’s faces.”

{¶3} As the argument escalated, Terry put one hand around 

Winfield’s throat and pushed her away. The force of the push on Winfield’s 

neck choked her. In response, Winfield pushed back at Terry, scratched his 

face, and threatened to call the police. At the time, Terry was on probation for 

an earlier assault conviction. Terry then retrieved a knife, either from the 

kitchen or a nearby desk, and briefly pointed it at Winfield. Terry placed his 

hand on Winfield’s neck a second time, but Terry did not push or choke her.
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{¶4} Winfield then took out her cell phone and began recording a 

video of the dispute. Terry then put the knife down on a table, but it fell to the 

floor. Winfield lunged to secure it. The dispute deescalated and Winfield went 

to check on their son in the next room while Terry collected his belongings and 

left. Winfield called her family, who arrived around 10:00 p.m. At the behest 

of her family, Winfield reported the incident to the police. The responding 

officer arrived that night and took pictures of Winfield’s neck.

{¶5} Terry was charged with one count of domestic violence in 

violation of R.C. 2919.25(A), a misdemeanor of the first degree. The matter 

was tried to the bench. There the state sought to introduce Winfield’s video 

taken after Terry removed his hand from Winfield’s neck, which the court 

admitted over objection with little discussion. At the close of trial, the judge 

found Terry guilty and imposed a suspended sentence with two years’

community control. Terry timely appealed.

Admission of Evidence

{¶6} In his first assignment of error, Terry contends that the trial 

court improperly admitted Winfield’s cell-phone video into evidence. A trial 

court’s decision to admit or exclude evidence is reviewed for an abuse of 

discretion. State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 

972 N.E.2d 528, ¶ 19. An abuse of discretion connotes a judgment that is 

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 

5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). “[A]s the [Ohio] Supreme Court 

recently clarified, ‘courts lack the discretion to make errors of law.’ ” State v. 

Austin, 1st Dist. Hamilton Nos. C-210140 and C-210141, 2021-Ohio-3608, ¶ 5, 

quoting Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, 
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187 N.E.3d 463, ¶ 39. But an error in an evidentiary ruling does not warrant 

reversal of the trial court’s judgment unless the ruling affected the substantial 

rights of the complaining party. Evid.R. 103(A); State v. Griffin, 1st Dist. 

Hamilton No. C-020084, 2003-Ohio-3196, ¶ 13.

{¶7} Terry objected to the admission of the cell-phone video under 

Evid.R. 403, arguing that the video was not probative of whether Terry 

knowingly harmed Winfield and that the danger of unfair prejudice 

substantially outweighed any potential probative value. Under Evid.R. 402, 

“[t]he general principle that guides admission of evidence is that ‘[a]ll relevant 

evidence is admissible * * * .’ ” State v. Morris, 132 Ohio St.3d 337, 

2012-Ohio-2407, 972 N.E.2d 528, ¶ 11, quoting Evid.R. 402. Evid.R. 403 

provides “exceptions to this general principle and provides circumstances for 

the exclusion of relevant evidence.” Id., citing Evid.R. 403. One such exception 

is that relevant evidence is not admissible when “its probative value is 

substantially outweighed by the danger of unfair prejudice,” among other 

things. State v. Brown, 2d Dist. Montgomery No. 24541, 2012-Ohio-1848, ¶ 31, 

citing Evid.R. 402 and 403(A).

{¶8} The cell-phone video taken by Winfield is probative of multiple 

facts of consequence. First, it goes to whether Terry knowingly harmed

Winfield because the video depicts Terry’s anger after Winfield threatened to 

call the police as well as Terry’s confrontational demeanor. Terry’s statements 

contained in the video are also probative of whether Terry knowingly grabbed

and pushed Winfield. Had Terry unintentionally grabbed and pushed 

Winfield, presumably the video would show surprise or a pause instead of the 

continuation of the argument.
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{¶9} The cell-phone video is also relevant because it reinforces

Winfield’s credibility. The state presented its case with Winfield as the sole 

witness. Thus, her credibility was at issue. The video supports Winfield’s 

credibility because Winfield testified that Terry had a knife during part of the 

dispute and a knife can be seen in Terry’s right hand in the video. By 

corroborating this part of Winfield’s testimony, the video suggests Winfield’s 

other testimony about being grabbed and choked is more likely to be true.

{¶10} The cell-phone video is also not unfairly prejudicial. Terry 

argues the video is unfairly prejudicial because it invites the judge to convict 

Terry of first-degree domestic violence for knowingly harming a family 

member under R.C. 2919.25(A) based on evidence for the distinct offense of 

second-degree domestic violence for using threats of force on a family member 

under R.C. 2919.25(C). Terry was tried in a bench trial. Thus, “we presume 

that ‘the court considered only the relevant, material, and competent evidence 

in arriving at its judgment unless it affirmatively appears to the contrary.’ ” 

State v. Robbins, 1st Dist. Hamilton No. C-120107, 2013-Ohio-612, ¶ 14,

quoting State v. White, 15 Ohio St.2d 146, 151, 239 N.E.2d 65 (1968). There is 

no indication that the judge abandoned her duty and integrity and convicted 

Terry of first-degree domestic violence because of a video showing evidence of 

second-degree domestic violence. Rather, to the contrary, the judge stated at 

the close of the state’s case that “I’m going to admit [the cell-phone video] for 

what it’s worth.” This statement suggests that the trial court declined any 

possible invitation to decide the case on an impermissible basis and only 

considered the video in light of its relevance to the elements of R.C. 2919.25(A).
OHIO FIRST DISTRICT COURT OF APPEALS

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{¶11} Because the cell-phone video was relevant and its probative 

value was not substantially outweighed by the danger of unfair prejudice, we 

overrule Terry’s first assignment of error.

Sufficiency of the Evidence

{¶12} In his second assignment of error, Terry argues that his 

conviction was not supported by legally sufficient evidence. A challenge to the 

sufficiency of evidence supporting a conviction requires a court to determine 

whether the state has met its burden of production at trial. State v. Thompkins, 

78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997) (Cook, J., concurring). The 

relevant inquiry, when reviewing the sufficiency of the evidence, is whether, 

after viewing the evidence in a light most favorable to the prosecution, any 

rational trier of fact could have found the essential elements of the offense 

proved beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 

574 N.E.2d 492 (1991), paragraph two of the syllabus; State v. Ojile, 1st Dist. 

Hamilton Nos. C-110677 and C-110678, 2012-Ohio-6015, ¶ 48. In deciding if 

the evidence was sufficient, we neither resolve evidentiary conflicts nor assess 

the credibility of the witnesses. State v. Thomas, 1st Dist. Hamilton 

No. C-120561, 2013-Ohio-5386, ¶ 45. It is a question of law for the court to 

determine and a court is not to weigh the evidence unless, after viewing the 

evidence, it weighs heavily against conviction. Id.

{¶13} To sustain a conviction for domestic violence under 

R.C. 2919.25(A), a person must (1) knowingly (2) cause or attempt to cause 

(3) physical harm (4) to a family or household member. Terry’s sufficiency 

argument contests only the element of physical harm. R.C. 2901.01(A)(3) 

defines “physical harm” to mean an “injury, illness, or other physiological 
OHIO FIRST DISTRICT COURT OF APPEALS

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impairment, regardless of its gravity or duration.” This court has consistently 

applied this broad statutory definition, explaining that “[t]he slightest injury is 

sufficient to prove physical harm.” State v. Jackson, 1st Dist. Hamilton 

No. C-210634, 2023-Ohio-785, ¶ 21, quoting State v. Thornton, 1st 

Dist. Hamilton Nos. C-210629, C-210630, C-210631 and C-210632, 

2022-Ohio-3452, ¶ 30, citing State v. Daniels, 2018-Ohio-1701, 

111 N.E.3d 708, ¶ 35 (1st Dist.).

{¶14} There is sufficient evidence, when viewed in the light most 

favorable to the state, that Terry caused Winfield “physical harm” within the 

meaning of the domestic-violence statute. A victim’s testimony, if found 

credible, can provide sufficient evidence to sustain a conviction. City of 

Cleveland v. Watson, 8th Dist. Cuyahoga No. 108746, 2020-Ohio-3284, ¶ 38. 

Though the photographs taken that night do not show any physical marks or 

bruises, Winfield’s testimony that Terry put his hands on her neck twice during 

the argument and that Terry choked her the first time Terry grabbed Winfield’s 

throat is sufficient evidence to meet the broad statutory definition of “physical 

harm.” See Daniels at ¶ 35 (grab of face causing pain is sufficient injury to 

constitute “physical harm”); Watson at ¶ 35 (pain from pulling hair extensions 

is sufficient injury to constitute “physical harm,” though victim suffered no 

lasting or serious physical harm); State v. Hustead, 83 Ohio App.3d 809, 615 

N.E.2d 1081 (4th Dist.1992) (slap to the face, which causes no redness, bruising 

or head movement, is sufficient proof of “physical harm” under patient-abuse 

statute that uses the same definition for the term).

{¶15} Viewing the testimony in this case in the light most favorable to 

the prosecution, a rational finder of fact can reasonably conclude that choking 
OHIO FIRST DISTRICT COURT OF APPEALS

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is an injury, illness, or other physiological impairment that constitutes physical 

harm. Because Terry does not contest the sufficiency of the evidence as to any 

other element of his conviction, we find that there was sufficient evidence to 

support Terry’s conviction.

Manifest Weight of the Evidence

{¶16} Additionally, Terry argues in his second assignment of error 

that his conviction is against the manifest weight of the evidence. In contrast 

to a challenge to the sufficiency of the evidence, an appellate court, in deciding 

whether a conviction is against the manifest weight of the evidence, determines 

whether the state has appropriately carried its burden of persuasion. 

Thompkins, 78 Ohio St. 3d at 390, 678 N.E.2d 541 (Cook, J., concurring). In 

reviewing the manifest weight of the evidence, an appellate court 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.” State v. Bailey, 1st Dist. Hamilton No. C-140129, 2015-Ohio-2997, 

¶ 59, quoting Thompkins at 387.

{¶17} In reviewing a challenge to the weight of the evidence, this court 

sits as a “thirteenth juror.” State v. Curry, 1st Dist. Hamilton No. C-180493, 

2020-Ohio-1230, ¶ 17, quoting Thompkins at 387. However, the trier of fact is 

in the best position to judge the credibility of the witnesses. See State v. 

DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the 

syllabus; State v. Jackson, 1st Dist. Hamilton No. C-210634, 2023-Ohio-785, 

¶ 17. Accordingly, a reviewing court will not substitute its judgment for that of 
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the trier of fact on the issue of witness credibility unless it is patently apparent 

that the trier of fact lost its way in arriving at its verdict. State v. Porter, 1st 

Dist. Hamilton No. C-200459, 2021-Ohio-3232, ¶ 25.

{¶18} The trial court was entitled to believe Winfield’s testimony that 

Terry put one hand around Winfield’s throat and pushed her away, choking 

her, and that Terry put his hand on Winfield’s neck a second time, but did not 

choke her. See State v. McDaniel, 2021-Ohio-724, 168 N.E.3d 910, ¶ 25 (1st 

Dist.), quoting State v. Robinson, 12th Dist. Butler No. CA2018-08-163, 

2019-Ohio-3144, ¶ 29 (holding a conviction is not against the manifest weight 

of the evidence simply because the trier of fact accepts one explanation over 

another). The fact that the video corroborated Winfield’s testimony that Terry 

had a knife supports the trial court’s credibility determination. Based on a 

careful review of the entire record, we hold that the trier of fact did not clearly 

lose its way and create a manifest miscarriage of justice in convicting Terry of 

domestic violence. This is not an exceptional case where the evidence weighs 

heavily against conviction.

{¶19} Because we hold that Terry’s conviction was supported by 

sufficient evidence and was not contrary to the manifest weight of the evidence, 

we overrule the second assignment of error.
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Conclusion

{¶20} Having overruled both assignments of error, we affirm the 

judgment of the trial court.

Judgment affirmed.

CROUSE, P.J., and KINSLEY, J., concur.

Please note:

The court has recorded its own entry on this date.