[Cite as State v. Cole , 2020-Ohio-1589.]

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

STATE OF OHIO Appellee

v. ANTHONY COLE Appellant C.A. No. 29362

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 18 05 1634

DECISION AND JOURNAL ENTRY Dated: April 22, 2020

TEODOSIO, Presiding Judge. {¶1} Appellant, Anthony Cole, appeals from his conviction for domest ic violence in the Summit County Court of Common Pleas. This Court affirms.

I. {¶2} Mr. Cole was in a long-term, off-and-on relationship with his l ive-in girlfriend (“G.S.”). According to G.S., Mr. Cole accused her of cheating on him one morning and began choking her in bed. When she pushed him away, he bit her on th e hand and said he would kill her. After Mr. Cole left for work and G.S. went through her typical morning routine with her son, daughter, and granddaughter, she went to the police station and reported the incident. {¶3} Mr. Cole was charged with both felony-three domestic violence a nd domestic violence menacing. After a jury trial, he was found guilty of domestic violence, but not guilty of domestic violence menacing. The t rial court sentenced him to e ighteen months in prison.2

{¶4} Mr. Cole now appeals from his c onviction and raises three assig nments of error for

our review.

II.

ASSIGNMENT OF ERROR ONE

APPELLANT’S CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION OF ARTICLE IV, SECTION 3 OF THE OHIO CONSTITUTION * * *. {¶5} In his first assignment of error, Mr. Cole argues that his conv iction was against the manifest weight of the e vidence. We disagree. {¶6} “[A] challenge to the manifest wei ght of the evidence concerns the State’s burden of persuasion.” In re R.H. , 9th Dist. Summit No. 28319, 2017-Ohio-7852, ¶ 25, citing State v. Thompkins , 78 Ohio St.3d 380, 390 (1997) (Cook, J ., concurring). This C ourt has stated: In determining whether a criminal conviction is against the man ifest weight of the evidence, an appellate court must review the entire record, wei gh the evidence and all reasonable inferences, consider the credibility of witnesse s and determine whether, in resolving conflicts in the evidence, the trier of f act clearly lost its way and created such a manifest miscarriage of justice that the con viction must be reversed and a new trial ordered.

State v. Otten , 33 Ohio App.3d 339, 340 (9th Dist.1986). “[W]hen reversing a conviction on the basis that it was against the manifest weight of the evidence, an appellate court sits as a ‘thirteenth juror,’ and disagrees with the factfinder’s resolution of the c onflicting testimony.” State v. Tucker , 9th Dist. Medina No. 06CA0035-M, 2006-Ohio-6914, ¶ 5. This dis cretionary power “should be exercised only in the exceptional case in which the evidence we ighs heavily against the

conviction.” Thompkins at 387, quoting State v. Martin , 20 Ohio App.3d 172, 175 (1st Dist.1983).

See also Otten at 340. {¶7} Mr. Cole was convicted of domestic violence under R.C. 2919.25( A), which states: “No person shall knowingly cause or attempt to cause physical h arm to a family or household3

member.” The parties stipulated at trial that Mr. Cole was pre viously convicted of two other domestic violence offenses, so t he offense in this matter was e nhanced to a felony of the third degree. R.C. 2919.25(D)(4). “A person acts knowingly, regardl ess of purpose, when the person is aware that the person’s conduc t will probably cause a certai n result or will probably be of a certain nature.” R.C. 2901.22(B). “ ‘Physical harm to persons’ means any injury, illness, or other physiological impairment, regardless of its gravity or duration .” R.C. 2901.01(A)(3). A “family or household member” includes a person living as a spouse, who is residing or has resided with the offender. R.C. 2919.25(F)(1)(a)(i). A “person living as a spouse” is “a person who is living

or has lived with the offender in a common law marital relation ship, who otherwise is cohabiting with the offender, or who otherwise has cohabited with the offe nder within five years prior to the date of the alleged c ommission of the act in question.” R.C. 2 919.25(F)(2). {¶8} G.S. testified that she was living with Mr. Cole in Akron in Ma y of 2018. Although they were never married, she was in an intimate relationship wi th Mr. Cole off-and-on for twentysome years, basically living as husband and wife. They have on e teenage son together. She testified that she was engaged in sexual intercourse with Mr. C ole sometime between 3:00 A.M. and 4:00 A.M. on May 11, 2018, when Mr. Cole accused her of che ating on him and started choking her around her neck. She clarified that this was not s imply “rough sex” because she does not do “stuff like that.” According to G.S., she could not bre athe while Mr. Cole was choking her. She pushed Mr. Cole back at one point, but he bit her finger an d said, “Well, I’ll kill you” and “I (sic) go up to your job and shoot you and him.” G.S. testified that she never screamed because her son was in the next room and she did not want to get him involv ed. She testified that she suffered scratches on her neck and hand, but did not seek medical attent ion. After Mr. Cole left for work,4

G.S. sent her son to school, visited her daughter down the stre et to help send her granddaughter to school, and then went to the police station to report the incid ent. {¶9} Sergeant Darletta Rubin of the A kron Police Department testifie d that G.S. came into the police department around 11:50 A.M. on May 11, 2018, t o file a domestic violence report. The sergeant has investigated hundreds of domestic violence cas es in her twenty-seven years of experience, and testified that it is not unusual for victims to physically come to the police station to report domestic violence instead of calling on the phone. M oreover, she claimed some people report domestic violence immediately, while others report it da ys later. Sergeant Rubin described G.S. as appearing rushed, a little disheveled, shaken, scared, frightened, and apprehensive that day. G.S. was talking low, but a little fast, so the sergeant asked her to speak up and slow down. G.S. then told the sergeant that Mr. Cole had choked her, bitten her , and threatened to kill her. The sergeant observed what appeared to be recent scratches and a li ttle bruising on G.S.’ neck as well as an abrasion on her left thumb. She took pictures of the inj uries, which were entered into

evidence at trial. She testifie d that the injuries were consis tent with G.S.’ explanation that Mr.

Cole choked and bit he r that morning. {¶10} Mr. Cole testified on his own behalf at trial. He admitted to living with G.S. in her

home for twelve-to-fifteen years, including in May of 2018. He testified that he bought groceries and furnishings for the home and thought he paid the rent most of the time. He acknowledged that G.S. received food stamps, but claimed that she would sell them . Mr. Cole testified that he has accused G.S. of cheating on multiple occasions, and that she ad mitted she was cheating on him with his cousin “probably days” before May 11, 2018. He agreed on cross-examination that everything G.S. testified to earlier was true, except he denied assaulting her. He testified that the5

couple engaged in sexual interc ourse and talked about whether h e should move out, but he did not

bite or choke her. {¶11} Mr. Cole now argues on appeal that the jury lost its way and cr eated a manifest miscarriage of justice because the evidence of G.S.’ injuries w as inconclusive and inconsistent with the alleged assault that occurred. He asserts that scratc hes, an abrasion, and “a little bruising” around the neck are inconsistent with the severe injuries one w ould most likely sustain when choked around the neck by someone the size and stature of Mr. C ole. He further notes that G.S.’ thumb was not bleeding and her skin was not broken from the all eged bite. He claims that the time gap between the alleged incident and when G.S. reported it to p olice was suspect, and may mean that her injuries were sustained after he had already left for work. He directs us to his own testimony that he did not bite G .S. and argues that no DNA evid ence, forensic evidence, or eyewitness testimony was present ed to corroborate G.S.’ allegat ion that he bit her. He claims that G.S. sought revenge after Mr. Col e ended their relationship by making these false allegations against him. {¶12} Mr. Cole explicitly agreed with most of G.S.’ testimony at tria l, and only disputed

her claims that he choked and b it her. The jury was therefore presented with conflicting testimony in addition to photographic evide nce of the injuries sustained, and “‘the weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts.’” State v. Haydon , 9th Dist. Summit No. 27737, 2016-Ohio-4683, ¶ 28, quoting State v. DeHass , 10 Ohio St.2d 230 (1967), paragraph one of the syllabus. The jury was best able to view the witnesses and observe their demeanor, gestures , and voice inflections, and us e those observations in weighing the credibility of the proffered testimony. See State v. Cook , 9th Dist. Summit No. 21185, 2003- Ohio-727, ¶ 30. G.S. testified th at Mr. Cole choked and bit he r, while Mr. Cole testified that he6

did not. Sergeant Rubin testified that the injuries she observ ed on G.S. that day were consistent with her story of being choked a nd bitten. The actual severity of those injuries is inconsequential, as the requisite physical harm for domestic violence may consis t of any injury regardless of its gravity or duration. See R.C. 2901.01(A)(3). The sergeant’s testimony also established that victims of domestic violence do not always report such incident s immediately, but sometimes delay contacting the police for days. Although Mr. Cole’s defe nse at trial was that G.S. fabricated the allegations in this case fo r personal and financial reasons , the jury was not required to believe that theory, and we cannot say that it erred in choosing to bel ieve G.S.’ version of events instead. This Court has consistently held that “[w]e will not overturn a conviction as being against the manifest weight of the evidence simply because the trier of fac t chose to believe the State’s version

of events over another version.” State v. Fry , 9th Dist. Medina No. 16CA0057-M, 2017-Ohio9077, ¶ 13. {¶13} In reviewing the entire record, weighing the evidence and all r easonable inferences, and considering the credibility of witnesses, we cannot say tha t the trial court, in resolving any conflicts in the evidence, clearly lost its way and created a m anifest miscarriage of justice. See

Otten at 340. Mr. Cole has also not demonstrated how this is an exc eptional case where the evidence presented weighs heavil y in his favor and against conv iction. See Thompkins at 387. {¶14} Mr. Cole’s first assignme nt of error is overruled.

ASSIGNMENT OF ERROR TWO

THE TRIAL COURT’S SENTENCE OF APPELLANT WAS CONTRARY TO LAW * * *.7

ASSIGNMENT OF ERROR THREE

THE RECORD DOES NOT SUPPORT THE TRIAL COURT’S SENTENCE OF APPELLANT * * *. {¶15} In his second assignment of error, Mr. Cole argues that the tri al court erred in imposing a sentence that was contrary to law for a variety of r easons. In his third assignment of error, he argues that the trial court erred in imposing a sente nce that was not supported by the

record. {¶16} In the State’s brief, it argues that Mr. Cole’s second and thir d assignments of error will be moot if he has completed his sentence by the time this Court issues its decision. “A case is moot if it involves ‘no actual genuine controversy which can definitely affect the parties’ existing legal relationship.’” State v. Ross , 9th Dist. Lorain No. 18CA011284, 2019-Ohio-323, ¶ 6, quoting Harris v. Akron , 9th Dist. Summit No. 24499, 2009-Ohio-3865, ¶ 7. “As a gener al rule,

courts will not resolve issues which are moot.” Boncek v. Stewart , 9th Dist. Summit No. 21054, 2002-Ohio-5778, ¶ 10. See also Cleveland Hts. v. Lewis , 129 Ohio St.3d 389, 2011-Ohio-2673, ¶

18. {¶17} Mr. Cole was released from prison on February 10, 2020. Accord ing to the Supreme Court of Ohio, “‘[n]eith er this court’s jurisprudence n or Ohio’s criminal-sentencing

statutes allow a trial court to resentence a defendant for an o ffense when the defendant has already completed the prison sancti on for that offense.’” State v. Trice , 9th Dist. Summit Nos. 29258 and 29283, 2019-Ohio-5098, ¶ 26, quoting State v. Holdcroft , 137 Ohio St.3d 526, 2013-Ohio-5014, ¶ 19. Thus, even assuming arguendo that these two assignments of error have merit, we cannot reverse the trial court’s judgme nt with respect to his sentence and then remand for resentencing.

See id.8

{¶18} Accordingly, because Mr. Cole’s second and third assignments of error are moot, they are therefore overruled on that basis.

III. {¶19} Mr. Cole’s first assignment of error is overruled. His second and third assignments of error are moot, and are therefore overruled. The judgment o f the Summit County Court of

Common Pleas is affirmed. Judgment affirmed.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Court of Common Pleas, County of Summit, 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 consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t 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 m ake a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant.

THOMAS A. TE ODOSIO FOR THE COURT9

CARR, J. SCHAFER, J. CONCUR.

APPEARANCES: BRIAN A. SMITH, Attorney a t Law, for Appellant. SHERRI BEVAN WALSH, Prosecuti ng Attorney, and JACQUENETTE S. CO RGAN, Assistant Prosecuting Attorney, for Appellee.