[Cite as State v. Fry , 2017-Ohio-9077.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF MEDINA )

STATE OF OHIO Appellee

v. BARBARA FRY Appellant C.A. No. 16CA0057-M

APPEAL FROM JUDGMENT ENTERED IN THE WADSWORTH MUNICIPAL COURT COUNTY OF MEDINA, OHIO CASE No. 15CRB00885

DECISION AND JOURNAL ENTRY Dated: December 18, 2017

TEODOSIO, Judge. {¶1} Barbara Fry appeals her conviction by th e Wadsworth Municipal Court, finding her guilty of the offense of domestic violence. This Court affirms.

I. {¶2} In October 2015, a complaint was filed by the State of Ohio against Ms. Fry charging her with the crime of domestic violence in violation of R.C. 2929.25(A). The alleged

incident involved an altercati on between Ms. Fry and her son th at took place outside of their home on the night of October 17, 2015. A trial by jury was held in March 2016, with the jury returning a verdict of guilty, and on April 20, 2016, th e trial court filed its se ntencing entry. Ms. Fry now appeals, raising two assignments of error.2

II.

ASSIGNMENT OF ERROR ONE

THE EVIDENCE AT TRIAL WAS INSUFFICIENT TO SUPPORT THE JURY’S GUILTY VERDICT AND THE CONVICTIONS THEREFORE WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. {¶3} In her first assignment of error, Ms. Fry argues the evidence presented at trial was insufficient as a matter of law to support her co nviction and that her conviction was against the manifest weight of the evidence. We disagree. Sufficiency of the Evidence {¶4} Whether the evidence in a case is legally sufficient to sustain a conviction is a question of law. State v. Thompkins , 78 Ohio St.3d 380, 386 (1997). “In essence, sufficiency is a test of adequacy.” Id . This Court reviews questions of law under a de novo standard. State v. Trifari, 9th Dist. Medina No. 08CA0043–M, 2009–Ohio–667, ¶ 12. {¶5} “An appellate court’s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant’s guilt beyond a

reasonable doubt.” State v. Jenks , 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. “The relevant inquiry 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 crime proven beyond a reasonable doubt.” Id

. {¶6} The offense of domestic violence has been committed when a defendant knowingly caused or attempted to cause physical harm to family or household member. R.C. 2919.25(A). As defined by R.C. 2901.01(A)(3), “‘[p]h ysical harm to persons’ means any injury, illness, or other physiological impairment, regard less of its gravity or duration.” We note that3

the family relationship between Ms. Fry and the victim is not in question, and that the victim is

her son. {¶7} The testimony of one of Ms. Fry’s neighbors indicated that on the night of the incident, he heard a young man screaming and yelling for help, and that he therefore called the police. He testified that when he looked out of his window, he saw a young man on the ground being attacked, that one of the attackers was Ms. Fry, and that she did not stop hitting him until the police arrived. The neighbor identified Ms. Fr y in the courtroom. He could not identify the

victim. {¶8} A friend of the victim testified that she wa s at Ms. Fry’s house on the night of the incident, and that Ms. Fry and the victim started to argue. She testified that she and the victim had gone outside and that Ms. Fry began yelling his name and subsequently ran towards them. She further testified that Ms. Fry was on top of him and that they were fighting and screaming. {¶9} The victim testified that he , a friend, and his mother were socializing in the home where he lived with his mother on the night of the incident. He testified that he got into an argument with his mother because she didn’t wa nt him to leave the house to walk his friend home. He further testified that he remembered his mother throwing him to the ground and that she was on top of him, with her hands around his neck, choking him “very hard.” {¶10} Based upon the testimony as recounted above, a rational trier of fact, viewing the evidence in a light most favorable to the pr osecution, could reasonably have found, beyond a reasonable doubt, that Ms. Fry committed the offe nse of domestic violence. We therefore conclude there was sufficient evidence to suppor t a finding that Ms. Fry committed the crime of

domestic violence.4

Manifest Weight of the Evidence {¶11} “In determining whether a conviction is against 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 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. Otten , 33 Ohio App.3d 339, 340 (9th Dist.1986). Weight of the evid ence concerns whether a greater amount of credible evidence supports one side of the issue than supports the other. State v. Thompkins , 78 Ohio St.3d 380, 387 (1997). Further, when re versing a conviction on the basis that the conviction was against the manife st weight of the evidence, “the appellate court sits as a ‘thirteenth juror’ and disagrees with the factfinder’s resolution of the conflicting testimony.” Id ., quoting Tibbs v. Florida , 457 U.S. 31, 42 (1982). An appellate court should only exercise its power to reverse a judgment as ag ainst the manifest weight of the evidence in exceptional cases in which the evidence weighs heavily against the conviction. Otten at 340. {¶12} “A conviction is not against the manifest weight of the evidence merely because there is conflicting evidence before the trier of fact.” State v. Haydon , 9th Dist. Summit No. 19094, 1999 Ohio App. LEXIS 6174, *19 (Dec. 22, 1999). An appellate cour t will not overturn a judgment on this basis alone, and may not merely substitute its judgment for that of the

factfinder. State v. Serva , 9th Dist. Summit No. 23323, 2007–Ohio–3060, ¶ 8. {¶13} This Court recognizes that “the trier of fact is in the best position to determine the credibility of witnesses and evaluate their testimony accordingly.” State v. Johnson , 9th Dist. Summit No. 25161, 2010–Ohio–3296, ¶ 15. We will not ove rturn a conviction as being against the manifest weight of the evidence simply because the trier of fact chose to believe the State’s5

version of events over another version. State v. Tabassum , 9th Dist. Summit No. 25568, 2011– Ohio–6790, ¶ 27. {¶14} In support of her argument that her convic tion was against the manifest weight of the evidence, Ms. Fry points to conflicting testimony by the neighbor as to how many people were involved in the incident and conflicting te stimony about whether the altercation broke up before or after the police arrive d. Ms. Fry contends that the fri end never testified that Ms. Fry “attacked” the victim; only that she came towards him, was on top of him, and that they were fighting. Ms. Fry further points to testimony that the friend didn’t know how the fight started. With regard to the victim’s testimony, Ms. Fry recounts that he had ad mitted to drinking and being intoxicated, that he had issues with anxiety, that he could not remember some events from the night in question, and that he admitted to hitting her with a closed fist. {¶15} Ms. Fry also directs us to the testimony of the responding police officer indicating the victim had told him that he had struck Ms. Fry because he was concerned she was going to become aggressive with his frie nd, and that after he did so, his mother grabbed him, forced him to the ground, and began choking him. Finally, Ms. Fry points to her own testimony that her son started to wrestle with her as she was attempting to guide him back into the house. She stated that he had punched her in the face, but she didn’ t tell the police because she wanted to protect

her son. She also testified that she never h it her son, and that she put a hand around his neck while she was on top of him because he had grabbed her by the throat. {¶16} As we have noted, a conviction is not agai nst the manifest weight of the evidence merely because there is conflicting evidence before a jury. Haydon at *19. Having reviewed the record, we cannot say that the jury clearly lost its way or created a manifest miscarriage of justice in choosing the State’s version of the ev ents. “[W]hen conflicting evidence is presented6

at trial, a conviction is not against the manifest weight of the evidence simply because the jury believed the prosecution testimony.” State v. Gilliam , 9th Dist. Lorain No. 97CA006757, 1998 Ohio App. LEXIS 3668, *5 (Aug. 12, 1998). We conc lude the conviction for domestic violence was not against the manifest weight of the evidence. {¶17} Ms. Fry’s first assignment of error is overruled.

ASSIGNMENT OF ERROR TWO

THE COURT TAINTED THE JURY’S DELIBERATIONS AND IMPROPERLY INFLUENCED THE JURY’S DELIBERATIONS WHEN IT GAVE AN ERRONEOUS JURY INSTRUCTION ON SELF-DEFENSE. {¶18} In her second assignment of error, Ms. Fry argues the court erred in the instruction of self-defense that was given to the jury. We disagree. {¶19} “An appellate court reviews a trial court’s refusal to give a requested jury

instruction for abuse of discretion.” State v. Adams , 144 Ohio St.3d 429, 2015-Ohio-3954, ¶

240. An abuse of discretion is more than an erro r of judgment; it means that the trial court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219 (1983). {¶20} Failure to object to a jury instruction limits review of the alleged error to the plain

error standard. State v. Bushner , 9th Dist. Summit No. 26532, 2012 Ohio 5996, ¶ 13. Crim.R. 52(B) provides that “[p]lain errors or defects affe cting substantial rights may be noticed although they were not brought to the attention of the court.” “To constitute plain error, the error must be

obvious and have a substantia l adverse impact on both the integrity of, and the public's confidence in, the judicial proceedings.” State v. Hoang , 9th Dist. Medina No. 11CA0013-M, 2012-Ohio-3741, ¶ 21. This Court “must take noti ce of plain error only with the utmost caution, and only then to prevent a manifest miscarriage of justice.” Id

.7

{¶21} Ms. Fry did not object to jury instructions provided to the jury and we are therefore limited to plain error review. As part of the instruction for self-defense, the Ohio Jury Instructions provide that a “defendant must prove by the greater weight of the evidence that * * * [she] was not at fault in creating the situation” and “[she] had reasonabl e grounds to believe and an honest belief, even if mistaken, that [she] was in [immin ent] danger of bodily harm.” (Emphasis added.) Ohio Jury Instructions , CR Section 421.21 (Rev. Aug. 16, 2006). The instruction given by the trial court, however, refl ects a pre-2006 version of the self-defense jury instruction, stating that a defendant must prove “[she] was not at fault in creating the situation” and “[she had] reasonable grounds to believe and an honest belief, even though mistaken, that [she] was in imminent danger of bodily harm * * *.” (Emphasis added.) See Ohio Jury

Instructions , Former CR Section 411.33. {¶22} Ms. Fry argues: [I]nstead of having the opportunity to d ecide if the defendant had a reasonable belief of imminent danger they were instructed that, in this case, the belief was mistaken. The instruction from the Judge, which the jury promised earlier they would follow, precluded the jury from determining for themselves whether or not Barbara Fry had acted in self-defense. As a result of this plain error Barbara Fry’s substantial rights to a fair, impartial interpretation of the law and the administration of justice [were] denied. Ms. Fry’s assertion that the instruction precluded the jury from determining for themselves

whether she had acted in self-defense is incorrec t. For the purposes of self-defense, it matters

not whether a defendant’s honest belief that sh e was in imminent danger of bodily harm was a mistaken belief or an accurate one. Even if the jury were to presume Ms. Fry was mistaken in a belief of imminent danger, the instruction given by the court makes clear that such a mistaken belief shall have no bearing so long as it was an honest belief. We conc lude there is no plain error in the instruction given by the trial court.8

{¶23} Ms. Fry’s second assignment of error is overruled.

III. {¶24} Ms. Fry’s assignments of error are overr uled. The judgment of the Wadsworth Municipal Court is affirmed. Judgment affirmed.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Wadsworth Municipal Court, County of Medina, State of Oh io, to carry this judgment into execution. A certified copy of this journa l entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this docum ent shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the 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 parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant.

THOMAS A. TEODOSIO FOR THE COURT

SCHAFER, P. J. CALLAHAN, J. CONCUR.9

APPEARANCES: DAVID V. GEDROCK, Attorney at Law, for Appellant. J. R. RUSSELL, Attorney at Law, for Appellee.