[Cite as State v. Deanda , 2021-Ohio-3774.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT FULTON COUNTY

State of Ohio Court of Appeals No. F-20-010 Appellee Trial Court No. CP NO 20CR000002

v. Aaron J. Deanda DECISION AND JUDGMENT Appellant Decided: October 22, 2021

* * * * * Scott A. Haselman, Fulton County Prosecuting Attorney, for appellee. Adam H. Houser, for appellant.

* * * * *

ZMUDA, P.J.

I. Introduction {¶ 1} Appellant, Aaron Deanda, appeals the September 11, 2020 judgmen t of the Fulton County Court of Common Pleas sentencing him to three yea rs of community2. control following his conviction for domestic violence. For th e following reasons, we affirm the trial court’s judgment. A. Facts and Procedural Background {¶ 2} On January 14, 2020, appellant was indicted on one count of dom estic violence in violation of R.C. 2919.25(A). Because appellant ha d previously been convicted of domestic violence in violation of R.C. 2919.25, th e current charge constituted a fourth-degree felony pursuant to R.C. 2919.25(D)( 3). Appellant was arraigned on January 24, 2020 and entered a not guilty plea. T he matter proceeded to a two day trial beginning on July 9, 2020. The testimony elicite d at trial and the relevant procedural history is summarized below: Testimony of J.D. {¶ 3} J.D. is appellant’s wife. At all times relevant to this appeal , she and appellant resided together in Wauseon, Fulton County, Ohio. On December 19, 2019, J.D. went to bed on the living room floor of their residence. She declined to sleep in the bedroom with appellant because he had been exhibiting “odd” beh avior. Twice prior to the underlying incident, appellant woke up and began screaming for J.D. She went to the bedroom to check on him and each time she found appellant claim ing that he needed assistance because he felt something was preventing him from ge tting up. {¶ 4} The third time appellant woke up he came down the hallway to th e living room where J.D. was sleeping. He then picked up a belt and beg an threatening to break

their television because J.D. would not have sex with him. As appellant got “more and3. more agitated,” J.D. began recording a video of him with her ph one. J.D. testified that while she was recording she focused on the screen rather than a ppellant. As the argument continued, appellant moved towards her. Through her phone, J.D . saw appellant’s foot strike the phone which then fell and struck her in the head. S he did not suffer any bruising or lacerations where the phone hit her but the area wa s “tender” for “just a short period of time.” {¶ 5} After the phone struck her, J.D. got “extremely upset.” Appell ant attempted to apologize. J.D. said “fuck that” just before the video ende d. J.D. testified she did not intentionally end the recording but that the stop button was in advertently pressed during the altercation. Appellant and J.D. then continued to argue wi th J.D. asking appellant to go back to bed. Eventually appellant went back to bed and fell asleep. Following this portion of J.D.’s testimony, the cell phone video of the incide nt was admitted into evidence and played for the jury. {¶ 6} The day after the incident, J.D. showed the video to appellant. Appellant initially denied that the video was of him. He then denied tha t it had happened the previous evening as he believed he had slept through the night. J.D. informed appellant that it was indeed him and that he had been waking up in the ni ght recently. Appellant said he did not recall waking up in the night at any time. App ellant then apologized to J.D. Despite his apology, J.D. testified that she remained “re ally angry.” {¶ 7} The following day, J.D. reported the incident to the Wauseon Po lice Department. She spoke with Officer Alan Donnett and showed him the video she had4. recorded. Officer Donnett then had J.D. prepare a written stat ement describing the

incident. J.D. testified that she told Officer Donnett that sh e wanted to stop writing the statement part of the way through it but was instructed that it had to be completed. J.D. then completed the statement and the meeting concluded. {¶ 8} When she went home, J.D. packed clothing and supplies for her a nd her children and went to stay with her mother. J.D. testified that she only reported the incident to the police so that appellant could get assistance w ith what she believed were mental health issues. She did not want appellant to be charged with a crime. {¶ 9} J.D. then testified that she had reviewed the video again durin g a meeting with the prosecutor approximately one month prior to the trial. Following that review, J.D. concluded that appellant had not intentionally kicked her but that he had stumbled while attempting to reach a remote control behind her and his f oot fell into the phone. She based this conclusion on the fact that during this later re view she heard appellant say “sorry” after the incident which she did not hear on prior view ings. She now believes that appellant merely fell because he is generally clumsy. Des pite reaching this conclusion approximately one month before trial, J.D. did not c ontact Officer Donnett or the Wauseon Police Department to revise her original written st atement. Testimony of Officer Alan Donnett, Wauseon Police Department {¶ 10} Officer Alan Donnett had been employed with the Wauseon Police Department for two years prior to appellant’s trial. During bo th his education to become5. a peace officer and his employment, he has completed training c ourses in investigating

domestic violence incidents. {¶ 11} Donnett was on duty on December 21, 2019, two days after the in cident. On that date, J.D. and her mother came into the police departme nt and requested to speak with an officer. Donnett responded to the request. During the ir discussion, J.D. prepared a written statement detailing how the incident occurred. Donne tt described J.D.’s demeanor as “extremely hesitant” and “scared because she was ma king a police report.” Donnett explained that it was common for those reporting domest ic violence to be hesitant because “it’s a big step” to report abuse to the polic e. Donnett recalled that J.D. stated that she did not want to take that step. He offered her encouragement stating that any continued violence would not stop unless she made the repor t. He denied, however, pressuring J.D. to complete the statement and testified that he is prohibited from forcing any victim of domestic violence to complete a report. {¶ 12} After completing the written statement, J.D. provided Donnett w ith a copy of the cell phone video of the incident. Donnett provided J.D. with information related to victim’s advocate services and discussed what arrangements she would need to make to move out of her residence and in with her mother. J.D. planned to move out of the residence that day while appellant was at work. Donnett instru cted J.D. to contact the police if appellant arrived home during that process so that th ey could ensure no further

incidents would occur.6. {¶ 13} Approximately three or four hours after their meeting, J.D. con tacted the police department to inform them that appellant had come home w hile she was packing. Donnett traveled to the residence where he found appellant stan ding outside. Donnett briefly explained to appellant that J.D. had reported the prior incident and asked appellant for his version of events. Appellant stated that he and J.D. h ad a verbal argument but that it did not turn physical. Appellant did not state that he had lost his balance and fell onto J.D. during the incident. Donnett advised appellant that it wo uld be best for him to leave while J.D. completed packing. Appellant agreed and left. Donn ett left a short time later. {¶ 14} On cross-examination, Donnett stated that he did not observe th at J.D. had suffered any physical injuries as a result of the incident. He also specified that when J.D. appeared hesitant to complete the written statement he told her that his mother had been a victim of domestic violence and that he appreciated that she ha d taken the step of reporting her abuser. He did not ask J.D. if her hesitation in filling out the written statement was related to her fear of reporting it or because sh e could not recall the details of the incident. He did, however, believe that her body langua ge indicated she was afraid of what appellant would do if he found out she had reported the incident. Crim.R. 29 Motion for Acquittal {¶ 15} The state rested its case-in-chief after Donnett’s testimony. In the trial court’s chambers, appellant made an oral Crim.R. 29 motion for acquittal arguing that the state failed to present sufficient evidence on each element of the offense. The trial court7. denied the motion. Appellant then rested its case-in-chief wit hout calling any witnesses and renewed his motion for acquittal. The trial court again de nied appellant’s motion. Jury Verdict and Sentencing {¶ 16} On July 10, 2020, the state and appellant presented their closi ng arguments. The trial court then read the jury its instructions and the mem bers of the jury proceeded to deliberations. The jury returned a guilty verdict the same day . The trial court ordered appellant to participate in a presentencing investigation and s et a sentencing hearing for September 9, 2020. At sentencing, the trial court imposed a th ree-year term of community control for appellant’s conviction. The trial court’ s judgment was memorialized in an entry dated September 11, 2020.

Crim.R. 33 Motion for New Trial {¶ 17} On July 15, 2020, appellant filed a Crim.R. 33 motion for new t rial alleging the jury’s verdict was based on insufficient evidence. The mot ion for new trial was still pending at the time of appellant’s sentencing. The trial court denied appellant’s motion on November 19, 2020. B. Assignments of Error {¶ 18} Appellant timely appealed the trial court’s September 11, 2020 judgment and asserts the following errors for our review: 1. The trial court abused its discretion when it denied appell ant’s motion for acquittal pursuant to Crim.R. 29 because the evidenc e presented was insufficient to support a conviction in this case.8. 2. Appellant’s conviction for domestic violence was against th e manifest weight of the evidence. 3. The denial of appellant’s motion for new trial and acquitta l should have been granted because there was not sufficient evide nce to

convict defendant. 4. The trial court committed plain error when it allowed the prosecutor to use facts that were not in evidence during closin g arguments and commit prosecutorial misconduct. II. Analysis A. The state introduced sufficient evidence to support appellant’s domestic violence conviction. {¶ 19} In his first assignment of error, appellant argues that the tri al court erred in denying his Crim.R. 29 motion for acquittal for domestic violen ce because the state failed to introduce sufficient evidence to support his conviction. In his third assignment of error, appellant argues that the trial court erred in denying h is Crim.R. 33 motion for a new trial which argued that the verdict was not supported by su fficient evidence. The parties agree that our review of the sufficiency of the evidenc e is the same for each of these assignments of error. Therefore, we address these assign ments together. 1

1 We note that prior to July 1, 2021, Crim.R. 33(A)(4) permitted an offender to file a motion for new trial alleging there was insufficient evidence t o support the verdict. In 1981, the United States Supreme Court held that a finding that the evidence was insufficient to support a verdict in the context of a new trial motion barred retrial of the defendant. Hudson v. Louisiana, 450 U.S.40, 101 S.Ct.970, 67L.E.2d 30 (1981). Despite this ruling, the language permitting the request for a new tria l based on insufficient9. {¶ 20} Domestic violence is a violation of R.C. 2919.25(A) which state s “[n]o person shall knowingly cause or attempt to cause physical harm to a family or household member.” Appellant argues that the state failed to show that h e acted knowingly or that his conduct resulted in injury to J.D. We disagree. {¶ 21} In reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the prosecution and deter mine whether “any rational

trier of fact could have found the essential elements of the cr ime proven beyond a

reasonable doubt.” State v. Smith , 80 Ohio St.3d 89, 113, 684 N.E.2d 668 (1997). In making that determination, the appellate court will not weigh t he evidence or assess the credibility of the witnesses. State v. Were , 118 Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, ¶ 132. Whether there is sufficient evidence to sup port a conviction is a question of law. State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). {¶ 22} At trial, J.D. testified that appellant awoke and came to the l iving room where she had been sleeping. He was upset because J.D. would n ot have sex with him and began arguing with her. He threatened to break the televis ion and then moved

evidence remained in Crim.R. 33(A)(4). In State v. Ramirez, 159 Ohio St.3d 426, 2020- Ohio-602, 151 N.E.3d 598, ¶ 13, the Ohio Supreme Court found th at this language in “[Crim.R. 33] has not been updated to reflect the current state of the law” in light of Hudson . As a result, this language was subsequently amended out of C rim.R. 33. It was, however, still in effect at the time appellant filed his motion for new trial. In light of Ramirez, this creates an issue of subject matter jurisdiction which neit her party raised as to whether this motion was properly before the trial court sinc e it could not grant the requested relief—a new trial. Because both the state and appel lant concede that our review of the sufficiency of the evidence under Crim.R. 29 and the former language of Crim.R. 33(A)(4) is identical, we do not need to address that i ssue as it does not impact our resolution of appellant’s sufficiency argument.10. toward her. Immediately thereafter, appellant raised his foot and struck J.D.’s phone. Importantly, the jury was shown the video that J.D. recorded of appellant’s conduct. The video shows appellant threatening J.D. The video also shows ap pellant move toward J.D., raise his foot and thrust it toward her cell phone. J.D. testified that her phone struck

her head which resulted in tenderness for a short time. Viewin g these facts in a light most favorable to the prosecution, we find that the state intro duced sufficient evidence to show that appellant acted knowingly and that J.D. suffered phys ical harm. {¶ 23} Appellant makes two arguments alleging that the state failed to introduce sufficient evidence. First, appellant argues that because J.D. testified that she believed appellant striking her phone was an accident that the state fai led to provide sufficient evidence that he acted knowingly. The video evidence belies su ch an argument. Appellant’s singular focus on J.D.’s testimony ignores the rema ining evidence which supports the required mental state element as described above. {¶ 24} Second, appellant argues that the state did not introduce suffi cient evidence at trial to satisfy the “physical harm” element of the offense. Pursuant to R.C. 2919.25(A), domestic violence occurs when an offender “knowingl y cause[s] or attempt[s] to cause physical harm to a family or household memb er.” Appellant argues that because J.D. allegedly did not suffer physical harm as a r esult of the incident that the state’s presentation of evidence insufficient. This argument i s without merit. {¶ 25} Review of the record shows that the state elicited testimony fr om J.D. that her head was tender at the site where the phone struck her. Wh ile the harm incurred11. appears to have been minimal, that testimony is sufficient to s how that J.D. did indeed suffer physical harm as a result of appellant’s conduct. See R.C. 2901.01(A)(3) (“Physical harm to persons” means any injury, illness, or other physiological impairment, regardless of its gravity or duration.). {¶ 26} Further, appellant’s argument that the alleged lack of physical harm warrants reversal of his conviction disregards the language of the statute. As the state correctly notes, a domestic violence conviction under R.C. 2919 .25(A) is supported by sufficient evidence if it shows that appellant knowingly caused or attempted to cause physical harm. R.C. 2919.25(A); See Oregon v. Snyder, 6th Dist. Lucas No. L-07-1424, 2008-Ohio-6537, ¶ 15, citing State v. Nielsen, 66 Ohio App.3d 609, 612, 585 N.E.2d 906 (6th Dist.1990) (“To be guilty of domestic violence under R.C. 2919.25(A), * * * [a] defendant may be found guilty of domestic violence even if the victim sustains only minor injuries, or sustains no injuries at all.”). The evidenc e introduced at trial shows that appellant attempted to cause J.D. physical harm. As a res ult, the state introduced

sufficient evidence as to this element of the offense. {¶ 27} In sum, viewing the evidence in a light most favorable to the p rosecution, we find that the video and related testimony was sufficient to show that appellant both caused and attempted to cause J.D. physical harm. For these re asons, appellant’s argument that the state failed to introduce sufficient evidence to support his domestic

violence conviction is without merit and his first and third as signments of error are found

not well-taken.12. B. Appellant’s conviction was not against the manifest weight of the evidence. {¶ 28} In his second assignment of error, appellant argues that his co nviction was against the manifest weight of the evidence presented at trial. Specifically, appellant argues that the jury gave insufficient weight to J.D.’s testimo ny that she believed appellant’s conduct was accidental—and, therefore, he did not a ct knowingly as required by the statute—which should have resulted in an acquittal. {¶ 29} “When examining whether a conviction was contrary to the manife st weight of the evidence, the appellate court serves as a ‘thirte enth juror’ to conclude whether the trial court lost its way so significantly as to res ult in a manifest miscarriage of justice, necessitating that the conviction be overturned.” State v. Butler , 6th Dist. Lucas No. L-08-1390, 2010-Ohio-178, ¶ 11. “In reaching this de termination, we grant substantial deference to the trial court's decision given its u nique opportunity to consider the evidence presented and to closely observe and assess the de meanor and credibility of

the witnesses.” Id. We note that questions regarding the “weight and credibility of evidence are primarily for the trier of fact.” State v. Teal , 6th Dist. Lucas Nos. L-15- 1280 and L-15-1281, 2017-Ohio-7202, ¶ 58, citing State v. Pena, 6th Dist. Lucas No. L12-1309, 2014-Ohio-423, ¶ 22. This court’s “discretionary powe r to grant a new trial should be exercised only in the exceptional case in which the e vidence weighs heavily against the conviction.” Thompkins , 78 Ohio St.3d at 386, 678 N.E.2d 541, quoting State

v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st. Dist.1983). Up on review of13. the record, we find that the jury’s verdict is not against the manifest weight of the evidence presented at trial. {¶ 30} Officer Donnett testified regarding J.D.’s reporting of the inc ident. When Donnett discussed the incident with J.D., she described appella nt as having kicked her phone out of her hands. She did not recant this statement upon subsequent viewing until the time of her testimony. Further, she provided the video of the incident to Officer Donnett which was played for the jury at trial. The video show s appellant raise his foot

and strike in J.D.’s direction amidst their verbal altercation. J.D. testified that the phone

then struck her head which resulted in tenderness at the affect ed area—that is, physical harm. While J.D.’s testimony stated her belief that the incide nt was an accident because appellant was clumsy, our review of the video did not reveal ap pellant stumbling in the way J.D. describes. {¶ 31} Having reviewed the record, including the video and related tes timony, we cannot say that the jury clearly lost its way and created a man ifest miscarriage of justice by finding appellant guilty of domestic violence. We find the state presented substantial evidence supporting each element of the charge. Appellant’s ar gument to the contrary is rooted in the jury’s determination of J.D.’s credibility. Esse ntially, appellant believes the jury should have found J.D.’s testimony more credible than Offi cer Donnett’s testimony or their own review of the video evidence, and found that appel lant did not act knowingly when he kicked J.D.’s phone. The credibility of J.D.’s testimo ny is an issue for the jury to determine and we may only disturb the jury’s assessment of h er credibility “in the14. exceptional case in which the evidence weighs heavily against t he conviction.” Thompkins at 386. In light of Officer Donnett’s testimony and our revie w of the video evidence, we find that this is not an “exceptional case” which warrants reversal. The jury’s verdict was not against the manifest weight of the evide nce and appellant’s second assignment of error is found not well-taken. C. The trial court did not commit plain error in allowing the state to draw conclusions from the evidence in its closing argu ment. {¶ 32} In his fourth assignment of error, appellant argues that the tr ial court erred in allowing the state to use facts which were not in evidence d uring its closing argument. Specifically, appellant argues that the state’s inference that appellant lied about the nature of the incident to Officer Donnett was not established by the e vidence and had a prejudicial effect on the jury. This, appellant argues, result ed in prosecutorial misconduct

and warrants reversal of his conviction. {¶ 33} Initially, we note that appellant did not object to the trial c ourt’s statement at trial. Therefore, the trial court did not have the opportun ity to address this issue which appellant now raises for the first time on appeal. “Arguments raised for the first time on appeal are generally barred.” State v. Talley , 6th Dist. Nos. L-20-1131, L-20-1132, 2021- Ohio-2558, ¶ 22, citing Cawley JV v. Wall Street Recycling, 35 N.E.3d 30, 2015-Ohio1846 (8th Dist.). Otherwise, a party could “hold their argumen ts in reserve for appeal, thus evading the trial court process.” Id. Crim.R. 52(B), however, carves out an exception to this general rule which permits review of an argum ent for “plain error” even though the argument was “not brought to the attention of the co urt.” As a result,15. appellant has waived all but plain error review of his fourth a ssignment of error. State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 89, citin g State v. Craig, 110 Ohio St.3d 306, 2006-Ohio-4571, 853 N.E.2d 621, ¶ 100. {¶ 34} “Plain error” is an error that affects an appellant’s substanti al rights. Crim.R. 52(B). “An error that affects substantial rights is on e that affected the outcome of the proceedings.” State v. Rink, 6th Dist. Lucas No. L-20-1049, 2021-Ohio-1068, ¶ 10, citing State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). “Plain error should be found only in exceptional circumstances and only to p revent a manifest miscarriage of justice.” Id. , citing State v. Hill, 92 Ohio St.3d 191, 203, 749 N.E.2d 274 (2001). A review of the pertinent record supports the conclusi on that the trial court did not commit plain error in allowing the state to infer that appe llant lied to Officer Donnett in its closing argument. {¶ 35} In closing arguments, “[p]rosecutors are entitled to latitude a s to what the

evidence has shown and what inferences can be drawn therefrom.” State v. Cunningham, 105 Ohio St.3d 197, 2004-Ohio-7007, 824 N.E.2d 504, ¶ 83, citin g State v. Richey, 64 Ohio St.3d 353, 595 N.E.2d 915. “The test for prosecutorial mi sconduct is whether the remarks were improper and, if so, whether they prejudicially af fected substantial rights of

the accused.” State v. Ortiz, 6th Dist. Wood No. WD-10-064, 2011-Ohio-4860, ¶ 21, citing State v. Eley, 77 Ohio St.3d 174, 187, 672 N.E.2d 640 (1996), 77 Ohio St.3d 17 4, 187, overruled on other grounds ; State v. Lott , 51 Ohio St.3d 160, 165, 555 N.E.2d 293 (1990)

.16. {¶ 36} During its closing argument, the state characterized appellant’ s conversation with Officer Donnett, which occurred while J.D. wa s moving out of the residence, as follows: When the officer questions [appellant] about what had happened that night between [he and J.D.], there was an opportunity to say, I lost my balance and I fell. I didn’t mean to kick her. You would expe ct that’s what he would have said. That’s what happened to her. But that’s n ot what he said. He lied. He said, oh, we just—we had a verbal argument. There was no physical altercation. He lied because he knew he was acting knowingly. This was no accident. This was not him losing his balance. Th is was him causing or attempting to cause physical harm to J.D. The evidence at trial, particularly the video, shows a physical confrontation between appellant and J.D. Appellant denied that there was any physica l contact. The state’s inference that appellant lied about the nature of the altercati on is fairly drawn from that evidence and falls within the latitude granted to the parties d uring closing arguments. See Cunningham at ¶ 83. The state’s inference that appellant lied based on th e evidence in the record does not constitute error—let alone plain error—and appellant’s fourth assignment of error is found not well-taken.17. III. Conclusion {¶ 37} We find each of appellant’s assignments of error not well-taken

. Therefore, we affirm the September 11, 2020 judgment of the Ful ton County Court of Common Pleas. Appellant is ordered to pay the costs of this ap peal pursuant to App.R.

24.

J udgment affirmed.

A certified copy of this entry shall constitute the mandate pur suant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. ________________________

_______ JUDGE Thomas J. Osowik, J.

_______________________________ Gene A. Zmuda, P.J. JUDGE CONCUR.

_______________________________ JUDGE

This decision is subject to further editing by the Supreme Cour t of Ohio’s Reporter of Decisions. Parties interested in viewing th e final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.