State v. Grabe

[Cite as State v. Grabe, 2017-Ohio-1017.]

STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO, ) CASE NO. 16 MA 0061

)

PLAINTIFF-APPELLEE, )

)

VS. ) OPINION

)

KYREE GRABE, )

)

DEFENDANT-APPELLANT. )

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Youngstown

Municipal Court of Mahoning County,

Ohio

Case No. 2016 CRB 222

JUDGMENT: Affirmed.

APPEARANCES:

For Plaintiff-Appellee: Atty. Shelli Ellen Freeze

Assistant Prosecutor

26 South Phelps Street, 4th floor

Youngstown, Ohio 44503

For Defendant-Appellant: Atty. John A. Ams

134 Westchester Drive

Youngstown, Ohio 44515

JUDGES:

Hon. Carol Ann Robb

Hon. Gene Donofrio

Hon. Cheryl L. Waite

Dated: March 20, 2017

[Cite as State v. Grabe, 2017-Ohio-1017.]

ROBB, P.J.

{¶1} Defendant-Appellant Kyree Grabe appeals his domestic violence

conviction which was entered after a bench trial in the Youngstown Municipal Court.

Appellant contends the state failed to present sufficient evidence to establish the

elements of the offense if we eliminate the victim’s statements, which he says were

introduced in violation of the Confrontation Clause of the Sixth Amendment to the

United States Constitution. He alternatively contends the trial court’s decision was

contrary to the manifest weight of the evidence. For the following reasons,

Appellant’s arguments are overruled, and the trial court’s judgment is affirmed.

STATEMENT OF THE CASE

{¶2} On February 1, 2016, Appellant was arrested for domestic violence for

knowingly causing or attempting to cause physical harm to a family or household

member, a first degree misdemeanor. A complaint was filed in the Youngstown

Municipal Court. Although the victim was subpoenaed, she failed to appear for trial

on April 24, 2016. The trial was reset for May 11, 2016, and a capias was issued

which ordered the victim’s arrest for failing to appear on the subpoena. The victim

could not be located, and she failed to appear for the rescheduled trial. The case

proceeded without her.

{¶3} A police officer testified he responded to a call reporting a fight at a

store in Youngstown. (Tr. 9). He entered the store and found the victim “very irate,

upset, loud voice.” He explained: “As I was trying to get the story from her, she

wouldn’t really calm down for me, so it was difficult to get the story from her.” When

asked if the victim was very upset, the officer answered in the affirmative. (Tr. 10).

The trial court allowed the officer to testify to what the victim said, over the objection

of defense counsel. (Tr. 10-11).

{¶4} The victim told the officer she and her boyfriend got in a fight in front of

the store and he pushed her to the ground by striking her chest. (Tr. 11). She

informed the officer she and Appellant had a child together. (Tr. 15). The officer

brought the victim outside of the store. (Tr. 11). He testified he noticed a red mark in

the victim’s chest area. (Tr. 11, 19). He considered it a small amount of redness and

did not mention it in his report. (Tr. 16-19). The victim filled out a domestic violence

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form. (Tr. 12). The officer then arrested Appellant who had “pulled up” in front of the

store in a car while the officer was speaking to the victim. (Tr. 11-13). The officer

identified the defendant. (Tr. 13).1

{¶5} The defense offered as an exhibit the birth certificate of the victim’s

child who was born three months prior to the incident. The defense emphasized

Appellant was not listed as the father on the birth certificate. The state pointed out

that no father was listed and the child was given Appellant’s last name.

{¶6} The trial court found Appellant guilty of domestic violence. Appellant

was sentenced to 100 days in jail with credit for 100 days of time served. He was

placed on basic probation for one year. The within timely appeal followed.

ASSIGNMENT OF ERROR ONE: CONFRONTATION CLAUSE

{¶7} Appellant sets forth two assignments of error, the first of which

contends:

“APPELLANT’S DOMESTIC VIOLENCE CONVICTION IS NOT SUPPORTED

BY LEGALLY SUFFICIENT EVIDENCE BECAUSE THE CONVICTION IS

ENTIRELY BASED UPON EVIDENCE IN VIOLATION OF THE CONFRONTATION

CLAUSE OF THE UNITED STATES CONSTITUTION.”

{¶8} Whether the evidence is sufficient to sustain a conviction is a question

of law dealing with the adequacy of the evidence. State v. Thompkins, 78 Ohio St.3d

380, 386, 678 N.E.2d 541 (1997). The Double Jeopardy Clause bars retrial after a

reversal on grounds of sufficiency. Id. at 387, citing Tibbs v. Florida, 457 U.S. 31, 41,

102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).

1 The state tried to introduce phone recordings from the police station when Appellant was

booked and phone recordings from the jail to show Appellant convinced the victim not to appear in

court. However, the court refused to admit the recordings, concluding there was no proof it was

Appellant who was speaking on the calls (even though the jail recordings were placed with Appellant’s

inmate PIN). The court would not allow the state to recall the first police officer to the stand because

he stayed in the courtroom after testifying and there had been a separation of witnesses. The state

tried to call another witness, apparently to identify voices, but the court would not allow her to testify

because she was not on the witness list.

Notably, the United States Supreme Court has “explicitly preserved the principle that an

accused has forfeited his confrontation right where the accused's own misconduct is responsible for a

witness's unavailability.” State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, ¶ 105.

Besides submitting the recording as a declaration against interest due to Appellant’s apologies, the

state was also attempting to introduce the recordings to show he waived his Confrontation Clause

rights with regards to the victim’s absence. (Tr. 8).

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{¶9} In viewing a sufficiency of the evidence argument, the evidence and all

rational inferences are evaluated in the light most favorable to the prosecution. See

State v. Filiaggi, 86 Ohio St.3d 230, 247, 714 N.E.2d 867 (1999). See also State v.

Goff, 82 Ohio St.3d 123, 138, 694 N.E.2d 916 (1998). Circumstantial evidence

inherently has the same probative value as direct evidence. State v. Treesh, 90 Ohio

St.3d 460, 485, 739 N.E.2d 749 (2001). A conviction cannot be reversed on grounds

of sufficiency unless the reviewing court determines reasonable minds could not have

found the elements of the offense proven beyond a reasonable doubt. Id. at 485.

{¶10} Appellant was convicted of domestic violence under R.C. 2919.25(A),

which has the following elements: knowingly causing or attempting to cause physical

harm to a family or household member. A family or household member includes,

“[t]he natural parent of any child of whom the offender is the other natural parent or is

the putative other natural parent.” R.C. 2919.25(F)(1)(b).

{¶11} On these elements, the state presented the testimony of the responding

officer. The officer testified to his observations, such as: the victim was very irate,

upset, and loud when he arrived; she “wouldn’t calm down” while attempting to speak

to the officer; the officer observed a red mark on the victim’s chest; and Appellant

was in a car in front of the store while the officer was speaking to the victim. The

officer also testified the victim said: she and her boyfriend got in a fight in front of a

store; Appellant pushed her to the ground by striking her in the chest; and Appellant

is the father of her child.

{¶12} Viewing this evidence and the rational inferences in the light most

favorable to the prosecution, the state presented sufficient evidence to satisfy the

elements of domestic violence. Whether the officer’s testimony on what the victim

told him was admissible presents a different question. Appellant does not dispute

this evidence was legally sufficient if the officer’s testimony (on what the victim told

him) is considered. Rather, he contends we must determine whether the evidence

was admissible prior to reviewing the question of sufficiency. In other words, he

believes we are to evaluate the trial court’s evidentiary rulings and then review only

the evidence that was properly admitted by the trial court. However, this suggestion

is incorrect.

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{¶13} As aforementioned, a reversal on sufficiency grounds bars retrial of the

defendant. Thompkins, 78 Ohio St.3d at 387, citing Tibbs, 457 U.S. at 41. However,

retrial is not barred by Double Jeopardy principles if the reversal is based upon a trial

court’s evidentiary ruling. Lockhart v. Nelson, 488 U.S. 33, 38, 109 S.Ct. 285, 102

L.Ed.2d 265 (1988). “When evidence admitted at trial is sufficient to support a

conviction, but on appeal, some of that evidence is determined to have been

improperly admitted, the Double Jeopardy Clauses of the United States and Ohio

Constitutions will not bar retrial. (Lockhart v. Nelson (1988), 488 U.S. 33, 109 S.Ct.

285, 102 L.Ed.2d 265, followed.)” State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-

593, 903 N.E.2d 284, syllabus.

{¶14} Consequently, when the trial court in Brewer was found to have erred in

admitting hearsay, the reviewing court was still required to review all of the evidence

(including the erroneously admitted evidence) in conducting the sufficiency review.

See id. If the totality of this evidence was sufficient to prove the elements of the

offense, then the reviewing court must remand for a new trial (as opposed to entering

an acquittal as required where there was insufficient evidence). Id.

{¶15} In summary, when reviewing the sufficiency of the evidence, the

appellate court must consider whether “the evidence offered by the State and

admitted by the trial court—whether erroneously or not—would have been sufficient

to sustain a guilty verdict * * *.” Id. at ¶ 17, quoting Lockhart, 488 U.S. at 35. See

also State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 80

(“on a claim of insufficient evidence, the reviewing court considers all the evidence

admitted against the appellant at trial”), citing Lockhart, 488 U.S. at 40-42.

{¶16} This leaves Appellant’s argument that the victim’s statements to the

officer were improperly admitted. The state initially responds by arguing the

statements qualified as excited utterances under Evid.R. 803(2). Pursuant to this

evidentiary rule, “[a] statement relating to a startling event or condition made while

the declarant was under the stress of excitement caused by the event or condition” is

not excluded by the hearsay rule (regardless of whether the declarant is available as

a witness). Evid.R. 803(2). The state points to the foundational testimony presented

by the officer: he responded to a call about a fight; the victim was found in the store;

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the victim was very irate, upset, and loud; and she would not calm down while telling

the story. (Tr. 9-10). The officer subsequently added that he observed a red mark on

the victim’s chest and the defendant approached when they exited the store. (Tr. 11-

12).

{¶17} The state concludes the trial court properly exercised its discretion in

permitting the officer to testify as to the victim’s excited utterances, noting we do not

substitute our judgment for that of the trial court on such evidentiary matters if the

decision was not unreasonable. Citing, e.g., Potter v. Baker, 162 Ohio St. 488, 124

N.E.2d 140 (1955) (“the decision of the trial judge, in determining whether or not a

declaration should be admissible under the spontaneous exclamations exception to

the hearsay rule, should be sustained where such decision appears to be a

reasonable one, even though the reviewing court, if sitting as a trial court, would have

made a different decision”).

{¶18} In apparent recognition of this discretion, Appellant does not challenge

the trial court’s decision under Evid.R. 803(2). Instead, he emphasizes: “Although a

hearsay statement may fall within an Evid.R. 803 exception to hearsay, it may

nonetheless be inadmissible as a violation of the Confrontation Clause.” The crux of

Appellant’s argument is the victim’s statements to the police officer were “testimonial”

in nature and therefore the officer’s testimony as to those statements was barred by

the Confrontation Clause since the victim did not testify. The state counters this by

asserting the officer’s “primary purpose” was to respond to an ongoing emergency,

not to obtain testimonial evidence against the defendant.

{¶19} The Confrontation Clause provides: “In all criminal prosecutions, the

accused shall enjoy the right * * * to be confronted with the witnesses against him.”

Sixth Amendment to the U.S Const. See also Fourteenth Amendment to the U.S.

Const. (binding the states). In the past, an out-of-court declaration by an unavailable

witness did not run afoul of the Confrontation Clause if it was accompanied by

adequate “indicia of reliability.” See, e.g., Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct.

2531, 65 L.Ed.2d 597 (1980) (if the declaration “falls within a firmly rooted hearsay

exception” or exhibits “particularized guarantees of trustworthiness”).

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{¶20} In 2004, the United States Supreme Court changed this test and held

the Confrontation Clause prohibits the introduction of “testimonial” statements by a

non-testifying witness (unless the witness is unavailable to testify and the defendant

had a prior opportunity for cross-examination). Crawford v. Washington, 541 U.S. 36,

54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Non-testimonial hearsay was left to the

hearsay law of the states. Id. at 68. The definition of “testimonial” was said to apply

“at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a

former trial; and to police interrogations.” Id. The Crawford Court found a police

interrogation of the defendant’s wife at a station house (after she and her husband

were arrested and Mirandized) produced testimonial (as opposed to non-testimonial)

statements, which were ruled inadmissible. Id. at 38, 52-53.

{¶21} In the consolidated cases of Davis and Hammon, the Court addressed

statements to law enforcement officers by domestic violence victims. Davis v.

Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) (consolidated

with Hammon v. Indiana). The Court pointed out how Crawford was concerned only

with the type of police interrogation in that particular case and did not define

“precisely which police interrogations produce testimony” so as to implicate the

Confrontation Clause. Id. at 822, 826.

{¶22} The Court created the “primary purpose” test to determine whether

statements were testimonial or non-testimonial. “Statements are nontestimonial

when made in the course of police interrogation under circumstances objectively

indicating that the primary purpose of the interrogation is to enable police assistance

to meet an ongoing emergency.” Id. at 822. “They are testimonial when the

circumstances objectively indicate that there is no such ongoing emergency, and that

the primary purpose of the interrogation is to establish or prove past events

potentially relevant to later criminal prosecution.” Id.

{¶23} In Davis, the Court found statements to a 911 operator during and soon

after a domestic incident were not formal and were elicited in order to “resolve the

present emergency.” Id. at 827. In Hammon, statements were made by the victim

under the following circumstances: the victim was sitting on the front porch when

police arrived; she told the police nothing happened; they asked to enter her house;

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they saw glass shattered on the floor from a broken heater; they separated the victim

from her husband; they questioned the victim; and they obtained an affidavit from the

victim. The Court found there was “no emergency in progress” and it was “clear from

the circumstances that the interrogation was part of an investigation into possibly

criminal past conduct.” Id. at 829. The officer questioning the victim was seeking to

determine “what happened” rather than “what is happening.” Id.

{¶24} In 2011, the Court clarified that reviewing courts should consider all

relevant circumstances. Michigan v. Bryant, 562 U.S. 344, 131 S.Ct. 1143, 179

L.Ed.2d 93 (2011). In Bryant, the victim of a shooting drove to another location

where police responded; he told police the identity of the shooter and the location of

the shooting. The Michigan Supreme Court found this testimony inadmissible under

Crawford and Hammon and reversed the defendant’s conviction. The United States

Supreme Court reversed, concluding the circumstances of the interaction between

the victim and the police objectively indicated the primary purpose of the interrogation

was to enable police to meet an ongoing emergency. Id. at 349, 376. It was also

concluded the victim’s primary purpose was not to prove past events for a

subsequent criminal prosecution. Id. at 375.

{¶25} The Bryant Court held, “not all those questioned by the police are

witnesses and not all ‘interrogations by law enforcement officers’ are subject to the

Confrontation Clause.” (Citations omitted.) Id. at 355. If a statement is not procured

with a primary purpose of creating an out-of-court substitute for trial testimony, it falls

outside of the protection of the Confrontation Clause. See id. at 358, 369. “Where

no such primary purpose exists, the admissibility of a statement is the concern of

state and federal rules of evidence, not the Confrontation Clause.” Id. at 359.

{¶26} The Court reiterated: if the primary purpose of an interrogation is to

respond to an ongoing emergency, then the purpose is not to create a record for trial

and not within the scope of the Confrontation Clause. Id. at 358. “But there may be

other circumstances, aside from ongoing emergencies, when a statement is not

procured with a primary purpose of creating an out-of-court substitute for trial

testimony.” Id. “[W]hether an ongoing emergency exists is simply one factor” in

determining the primary purpose of the interrogation. Id. at 366. The Court opined,

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“standard rules of hearsay, designed to identify some statements as reliable, will be

relevant.” Id. at 358-359.

{¶27} The most accurate assessment of the primary purpose of an

interrogation is ascertained through an objective analysis of the circumstances of the

encounter and the statements and actions of the interrogators and those making the

declaration. Id. at 360. The subjective or actual purpose of the participants is not the

question. Id. Rather, the question is what purpose would have been possessed by

reasonable participants, as determined from the totality of the circumstances. Id.

Some relevant considerations in determining the primary purpose of the interrogation

include: the informality of the encounter with the declarant (at or near the scene

versus at a police station); the nature of what was asked/answered; the actions of the

parties; the disorganization of the scene; the severity of the victim's injuries; the use

of a gun; the absence of an identification of the suspect; the danger to the public; the

danger to the victim; and the presence of an on-going emergency. See id. at 360,

364-367.

{¶28} Statements can start out non-testimonial (falling outside of the

Confrontation Clause) and evolve into testimonial statements (protected by the

Confrontation Clause). Id. at 365 (stating the trial court should determine this

transition point in the first instance). The dual responsibilities of the responding

officer were recognized: first responder and criminal investigator. Id. at 366. Finally,

it should be noted the Bryant Court mentioned how the case of a gunshot victim

found in a public place with an unidentified shooter running at large presented “a new

context” differed from the case of a domestic abuse victim where there is a “narrower

zone of potential victims than cases involving threats to public safety.” Id. at 359,

363.

{¶29} Recently, the United States Supreme Court reversed the Ohio Supreme

Court’s exclusion of evidence under the Confrontation Clause where a three-year-old

told his preschool teachers his mother’s boyfriend caused his injuries. The Court was

presented with the issue of whether statements to persons other than law

enforcement officers are subject to the Confrontation Clause. Ohio v. Clark, __ U.S.

__, 135 S.Ct. 2173, 2181, 192 L.Ed.2d 306 (2015). The Court declined to

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categorically exclude statements to non-law enforcement from the Confrontation

Clause’s protection. Id. In setting forth the basic law, the Court reiterated: “under

our precedents, a statement cannot fall within the Confrontation Clause unless its

primary purpose was testimonial.” Id. at 2180. (if no such primary purpose exists,

admissibility is left to the rules of evidence). The Court then added:

But that does not mean that the Confrontation Clause bars every

statement that satisfies the “primary purpose” test. We have

recognized that the Confrontation Clause does not prohibit the

introduction of out-of-court statements that would have been admissible

in a criminal case at the time of the founding. Thus, the primary

purpose test is a necessary, but not always sufficient, condition for the

exclusion of out-of-court statements under the Confrontation Clause.

(Citations omitted.)

Id. at 2180-2181. The Court also stated: “Neither Crawford nor any of the cases that

it has produced has mounted evidence that the adoption of the Confrontation Clause

was understood to require the exclusion of evidence that was regularly admitted in

criminal cases at the time of the founding.” Id. at 2182.

{¶30} In writing a separate concurrence, Justice Scalia (joined by Justice

Ginsberg) agreed with employing the usual test applicable to informal police

interrogations and the result in the case. Id. at 2183-2184 (Scalia, J., concurring).

Justice Scalia then expressed: “I write separately, however, to protest the Court's

shoveling of fresh dirt upon the Sixth Amendment right of confrontation so recently

rescued from the grave in Crawford * * *.” Id. at 2184. He said a statement by the

six-justice-majority (that the primary purpose test is merely one “necessary, but not

always sufficient” condition for the Confrontation Clause's protections to apply) was

“absolutely false, and has no support in our opinions.” Id. at 2184-2185. He saw this

“aggressive hostility to precedent” as dicta. Id. at 2185. We note Justice

Thomas wrote his own concurrence to express his standard view that the

Confrontation Clause only protects statements bearing “sufficient indicia of solemnity

to qualify as testimonial.” Id. at 2186 (Thomas, J., concurring) (focusing on

“formalized” statements).

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{¶31} Appellant contends the victim’s statements to the police officer were

testimonial, claiming there was no immediate threat to the victim and no emergency

in progress. Appellant says he and the victim were located in separate physical

spaces when police arrived at the store. He concludes the primary purpose of the

interrogation was to prove past events relevant to a later prosecution, alleging the

officer was ascertaining “what happened?” as opposed to “what is happening?”

{¶32} The state asserts the primary purpose of the investigation was not to

obtain testimony but to respond to an emergency call about a fight at a store. The

state notes the presence of an ongoing emergency is not the sole test and asks us to

consider the entirety of the circumstances, including the victim’s state of mind and the

lack of formal interrogation on arrival.

{¶33} The officer was responding to an emergency call reporting a fight at a

store on the East Side of Youngstown. He entered the store and heard the victim

who was using a loud voice. She was “very irate” and “very upset.” The officer

noted, “she wouldn’t really calm down for me so it was difficult to get the story from

her.” (Tr. 10). The trial court ruled the standard for admitting an excited utterance

was established.

{¶34} Even if not dispositive, “standard rules of hearsay, designed to identify

some statements as reliable, will be relevant.” Bryant, 562 U.S. at 358-359. We also

note: “The excited utterance exception, which is at least two centuries old and may

in fact have its origins in late 17th century English common law, is without question a

firmly rooted hearsay exception.” United States v. Hadley, 431 F.3d 484 (6th

Cir.2005). Although Justice Scalia characterized it as dicta, the Clark majority did

recently observe: “the Confrontation Clause does not prohibit the introduction of out-

of-court statements that would have been admissible in a criminal case at the time of

the founding.” Clark, 135 S.Ct. at 2180.

{¶35} In any event, the officer could not be certain there was no ongoing

emergency, threat to the victim, or threat to others at the store. Objectively, the

victim could still be seen as in danger. In order to assess the situation, the officer

tried to listen to the victim and then elicited clarification while calming down the

victim. The incident did not occur at a private home. The officer did not know who

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the perpetrator was when he first responded. Nor did he initially know where the

perpetrator was located. The “circumstances were not entirely clear.” See Clark,

135 S.Ct. at 2181.

{¶36} Objectively, the officer’s role as first responder could still be seen as his

primary function. We also note, as the officer brought the victim outside of the store,

a car (occupied by Appellant) pulled up to the front of the store; the officer testified, “I

don’t know where they came from.” (Tr. 12). The victim completed a domestic

violence form after she made statements to the officer. The form was not admitted

as evidence. The officer testified to what the victim verbally told him, when the scene

was disorganized and the questioning lacked formality.

{¶37} Under the totality of the circumstances, a reasonable person could

conclude the primary purpose of the informal questioning by the first-responding

police officer and the responsive excited utterances of the victim were not to prove

past events for a subsequent criminal prosecution, i.e., the primary purpose was not

to create an out-of-court substitute for testimony. This court concludes the testimony

was not presented in violation of the Confrontation Clause. In accordance, this

assignment of error is overruled.

ASSIGNMENT OF ERROR TWO: WEIGHT OF THE EVIDENCE

{¶38} Appellant’s second assignment of error provides:

“APPELLANT’S DOMESTIC VIOLENCE CONVICTION IS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE.”

{¶39} Weight of the evidence deals with the inclination of the greater amount

of credible evidence to support one side of the issue over the other. State v.

Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). It depends on the effect

in inducing belief and relates to persuasion. Eastley v. Volkman, 132 Ohio St.3d 328,

2012-Ohio-2179, 972 N.E.2d 517, ¶ 12, 19. In evaluating a manifest weight of the

evidence argument, the reviewing court examines the entire record, weighs the

evidence and all reasonable inferences, considers the credibility of witnesses, and

determines whether in resolving conflicts in the evidence, the trial court clearly lost its

way and created such a manifest miscarriage of justice that a new trial must be

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ordered. Thompkins, 78 Ohio St.3d at 387. A reversal on weight of the evidence is

ordered only in exceptional circumstances. Id.

{¶40} We are guided by the principle that the fact-finder is best able to weigh

the evidence and judge the credibility of witnesses by viewing the demeanor, voice

inflections, and gestures of the witnesses testifying before it. See, e.g., State v. Hill,

75 Ohio St.3d 195, 661 N.E.2d 1068 (1996); Seasons Coal Co. v. Cleveland, 10 Ohio

St.3d 77, 80, 461 N.E.2d 1273 (1994). We generally proceed under the theory that

when there are two conflicting versions of events, neither of which is unbelievable,

we refrain from choosing which version we believe is most credible. See State v.

Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d 125 (7th Dist.1999).

{¶41} In support of his weight of the evidence argument, Appellant points to

the birth certificate of the victim’s child and notes there was no father listed.

Appellant offered the child’s birth certificate as an exhibit at trial. As the state pointed

out to the trial court, the child was given Appellant’s last name. (The first name is

also similar to that of Appellant.) Regardless, the victim told the officer Appellant was

the father of her child. (Tr. 15).

{¶42} Appellant also criticizes the officer’s failure to include in his report the

alleged red mark on the victim’s chest. The victim said Appellant struck her in the

chest, knocking her to the ground. The officer testified he observed a red mark in the

victim’s chest area. (Tr. 11). The officer attributed the redness to a physical

altercation but admitted he could not say the redness was due to an attack by any

person. (Tr. 19).

{¶43} Defense counsel asked why the officer left the observation of redness

out of his report. The officer responded, “I don’t know.” (Tr. 16). He was asked: “Is

there a chance that there wasn’t any redness because if there was it would have

been in the report?” The officer replied, “Could have been, I am not sure what you

mean.” (Tr. 17). Counsel added, “So what I am asking you is the absence of that

notation, the absence of some type of description in the report, does that mean that

perhaps your memory is confused today and the report is more accurate, there was

no redness as opposed to you sitting here today saying there was?” The officer

replied, “Could be.” (Tr. 18).

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{¶44} On redirect, the officer explained he did not mention the redness in his

report because “I didn’t find it very serious to begin with.” (Tr. 18-19). The state

inquired, “So in essence, you saw just a little redness and didn’t think it was, didn’t

think much of it?” The officer answered, “Correct.” The officer then reaffirmed his

testimony that he recalled seeing the redness on the victim’s chest. (Tr. 19).

{¶45} The officer’s statement that he observed redness on the victim’s chest

area could be reasonably believed by the fact-finder. The officer’s demeanor, voice

inflections, eye movements, and gestures could have contributed to the trial court’s

weighing of his testimony on this topic and as a whole. He recounted the victim’s

excited utterances made to him as he responded to an emergency call. The trial

court did not clearly lose its way in believing the officer’s testimony and weighing the

evidence. In accordance, this assignment of error is overruled.

{¶46} For the foregoing reasons, the trial court’s judgment is affirmed.

Donofrio, J., concurs.

Waite, J., concurs.