[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 the 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 altercation between Ms. Fry and her son that 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, the trial court filed its sentencing 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 conviction 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]hysical harm to persons’ means any injury, 

illness, or other physiological impairment, regardless of its gravity or duration.” We note that 
3 

 

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. Fry in the courtroom. He could not identify the 

victim. 

{¶8} A friend of the victim testified that she was 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 want 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 prosecution, could reasonably have found, beyond a 

reasonable doubt, that Ms. Fry committed the offense of domestic violence. We therefore 

conclude there was sufficient evidence to support 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 evidence 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 reversing a conviction on the basis that the 

conviction was against the manifest 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 against 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 court 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 overturn a conviction as being against 

the manifest weight of the evidence simply because the trier of fact chose to believe the State’s 
5 

 

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 conviction 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 testimony about whether the altercation broke up 

before or after the police arrived. Ms. Fry contends that the friend 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 admitted 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 friend, 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 hit 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 against 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 events. “[W]hen conflicting evidence is presented 
6 

 

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 conclude 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 error 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 affecting 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 substantial 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 notice 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 reasonable grounds to believe and 

an honest belief, even if mistaken, that [she] was in [imminent] 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, reflects 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 decide 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 incorrect. For the purposes of self-defense, it matters 

not whether a defendant’s honest belief that she 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 conclude 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 overruled. 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 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 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.