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State v. Ellis

COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
Nov 13, 2020
2020 Ohio 5272 (Ohio Ct. App. 2020)

Opinion

Appellate Case No. 28638

11-13-2020

STATE OF OHIO Plaintiff-Appellee v. THERON H. ELLIS, SR. Defendant-Appellant

STEPHANIE L. COOK, Atty. Reg. No. 0067101 and ANDREW D. SEXTON, Atty. Reg. No. 0070892, Assistant Prosecuting Attorney, City of Dayton Prosecutor's Office, 335 West Third Street, Room 372, Dayton, Ohio 45402 Attorneys for Plaintiff-Appellee MICHAEL HALLOCK, JR., Atty. Reg. No. 0084630, P.O. Box 202017, Dayton, Ohio 45429 Attorney for Defendant-Appellant


Trial Court Case No. 2019-CRB-4809 (Criminal Appeal from Municipal Court)

OPINION

STEPHANIE L. COOK, Atty. Reg. No. 0067101 and ANDREW D. SEXTON, Atty. Reg. No. 0070892, Assistant Prosecuting Attorney, City of Dayton Prosecutor's Office, 335 West Third Street, Room 372, Dayton, Ohio 45402 Attorneys for Plaintiff-Appellee MICHAEL HALLOCK, JR., Atty. Reg. No. 0084630, P.O. Box 202017, Dayton, Ohio 45429 Attorney for Defendant-Appellant DONOVAN, J.

{¶ 1} Defendant-appellant Theron H. Ellis, Sr., appeals his conviction for one count of violating a civil stalking protection order (CSPO), in violation of R.C. 2919.27(A)(2), a misdemeanor of the first degree.

{¶ 2} The record establishes that Ellis resided next door to the victim, Phillip Brooks, in Dayton, Ohio. Brooks testified that he had known Ellis for approximately six years. In fact, Brooks described his relationship with Ellis as "sociable" until some point in 2018, when Brooks applied for a CSPO against Ellis. Tr. 23. After a hearing held on October 2, 2018, Brooks was granted a CSPO against Ellis on October 9, 2018. Brooks was served with the CSPO on October 10, 2018. The CSPO was scheduled to remain in effect until October 4, 2019.

{¶ 3} The incident which formed the basis for Ellis's conviction occurred on September 22, 2019, when Brooks returned from a shopping trip for another one of his neighbors, Laverne Turner, who lived next door to Ellis. When Brooks arrived at Turner's residence, Ellis was outside washing and/or waxing his vehicle. Brooks testified that, as he walked to the rear of his vehicle to retrieve Turner's supplies, Ellis walked over to where his (Ellis's) dog was laying, grabbed it by its collar, and approached Brooks; the dog weighed approximately 100 pounds,. At that point, Ellis ordered his dog to "get him," and "bite his a**." Brooks testified that Ellis also stated "[i]f he [Brooks] comes over here[,] bite his a**." Tr. 27. Brooks testified that Ellis was only 10 to 15 feet away when the threat was made.

{¶ 4} Brooks testified that, at that point, he asked Ellis, "You're gonna sick [sic] your dog on me?" and Ellis responded, "I'll f*** you up", "Come over here, and I'll f*** you up", and "I'll beat your f****** a**." Tr. 30-31. According to Brooks, there was no one else present at the time the threats were made, and Ellis was looking directly at him.

{¶ 5} Brooks testified that he did not say anything else to Ellis after being threatened. Rather, Brooks got back in his vehicle, drove to his residence, and contacted the Dayton Police Department. Shortly thereafter, the police arrived at Brooks's residence and an incident report was made. Dayton Police Officer Joshua Gundaker testified that he attempted to make contact with Ellis, but Ellis had left the scene immediately after the incident.

{¶ 6} Turner testified that he was in his garage at the time that the incident occurred and therefore did not directly witness the confrontation between Brooks and Ellis. Turner testified, however, that he heard Ellis tell his dog, "if he [Brooks] comes over here, * * * to bite him." Tr. 49. Turner also testified that he heard Brooks respond, "why would you want to sick [sic] your dog on me," to which Ellis replied, "if you come over here[,] I'll f*** you up." Tr. 50.

{¶ 7} Ellis testified on his own behalf, asserting that Brooks was the aggressor and initiated the incident when Ellis first exited his vehicle, telling Ellis, "get your dog before I fuck him up." Tr. 81. Ellis testified that he then simply asked Brooks to "leave my dog alone" and "don't even step on my property." Id. Ellis testified that after the incident occurred, he went inside his house and took a shower, after which he left his residence in order to comply with the CSPO. Tr. 87.

{¶ 8} A criminal complaint was filed against Ellis for violating the terms of the CSPO. At his arraignment on October 2, 2019, Ellis pled not guilty. A trial was held on November 19, 2019. At the close of the State's case, Ellis made a motion for acquittal pursuant to Crim.R. 29, which was overruled by the trial court. Ellis was found guilty of violating the CSPO, and the trial court imposed a sentence of 180 days in jail, with the entire sentence suspended. Ellis was placed on one year of basic supervised probation and ordered to complete an anger management program and to have no contact with Brooks.

{¶ 9} It is from this judgment that Ellis now appeals.

{¶ 10} Ellis's sole assignment of error is as follows:

THE TRIAL COURT ERRED IN OVERRULING ELLIS' MOTION FOR ACQUITTAL (CRIM.R. 29) WHERE THE STATE FAILED TO PROVE EACH ELEMENT OF R.C. 2919.27(A)(2).

{¶ 11} Ellis contends that the trial court erred when it overruled his Crim.R. 29 motion for acquittal because the State failed to adduce sufficient evidence to establish that he violated the terms of the CSPO. Ellis also argues that the State failed prove that he acted "recklessly" when he violated the CSPO.

{¶ 12} } Crim.R. 29(A) provides, in relevant part, that a trial court "on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal on one or more offenses charged in the * * * complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses." The standard of review for a denial of a Crim.R. 29 motion is the same as the standard of review for a sufficiency of the evidence claim. State v. Carter, 72 Ohio St.3d 545, 553, 651 N.E.2d 965 (1995).

{¶ 13} As this Court has previously noted:

"A sufficiency of the evidence argument disputes whether the State has presented adequate evidence on each element of the offense to allow
the case to go to the jury or sustain the verdict as a matter of law." State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). When reviewing whether the State has presented sufficient evidence to support a conviction, the relevant inquiry is whether any rational finder of fact, after viewing the evidence in a light most favorable to the State, could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997). A guilty verdict will not be disturbed on appeal unless "reasonable minds could not reach the conclusion reached by the trier-of-fact." Id.

In contrast, "a weight of the evidence argument challenges the believability of the evidence and asks which of the competing inferences suggested by the evidence is more believable or persuasive." Wilson at ¶ 12; see Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 19 (" 'manifest weight of the evidence' refers to a greater amount of credible evidence and relates to persuasion"). When evaluating whether a conviction is against the manifest weight of the evidence, the appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider witness credibility, 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." Thompkins at 387, citing State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
Because the trier of fact sees and hears the witnesses at trial, we must defer to the factfinder's decisions whether, and to what extent, to credit the testimony of particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684 (Aug. 22, 1997). The fact that the evidence is subject to different interpretations does not render the conviction against the manifest weight of the evidence. Wilson at ¶ 14. A judgment of conviction should be reversed as being against the manifest weight of the evidence only in exceptional circumstances. Martin at 175.
State v. Hill, 2d Dist. Montgomery No. 26581, 2015-Ohio-5166, ¶ 25-27.

{¶ 14} R.C. 2919.27(A)(2) provides that "[n]o person shall recklessly violate the terms of * * * [a] protection order issued pursuant to section 2151.34, 2903.213, or 2903.214 of the Revised Code[.]" Whoever recklessly violates the terms of such a protection order is guilty of violating a protection order, which is a misdemeanor of the first degree. R.C. 2919.27(B)(1)-(2). R.C. 2901.22(C) provides:

A person acts recklessly when, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that the person's conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that such circumstances are likely to exist.

{¶ 15} As previously stated, after a hearing held in October 2018, Brooks was granted a CSPO against Ellis. Brooks was served with the CSPO on October 10, 2018, and it was scheduled to remain in effect until October 4, 2019. The CSPO stated in pertinent part:

The CSPO against Ellis was admitted into evidence at trial as State's Exhibit 1. --------

THE COURT HEREBY ORDERS:

That the above named Respondent [Ellis] be restrained from committing acts of abuse or threats of abuse against the Petitioner [Brooks] and other protected persons named in this Order, as set forth below. Additional terms of this Order are set forth below.

* * *

RESPONDENT SHALL NOT ABUSE the protected persons named in this Order by harming, attempting to harm, threatening, following, stalking, harassing, forcing sexual relations upon them, or by committing sexually oriented offenses against them. * * *

{¶ 16} The evidence presented by the State established that on September 22, 2019, Brooks had just returned from a shopping trip for his neighbor, Turner, who lived next door to Ellis. When Brooks arrived at Turner's residence, Ellis was outside washing and/or waxing his vehicle. As Brooks walked to the rear of his vehicle to retrieve Turner's supplies, Ellis walked over to his dog, who weighed approximately 100 pounds, grabbed it by its collar, and approached Brooks. Ellis then ordered his dog to "get him," and "bite his a**." Brooks testified that Ellis also stated "[i]f he [Brooks] comes over here[,] bite his a**." Tr. 27. Ellis was only 10 to 15 feet away when the threat was made.

{¶ 17} Brooks testified that, at that point, he asked Ellis, "You're gonna sick [sic] your dog on me?" and Ellis responded, "I'll f*** you up", "Come over here, and I'll f*** you up", and "I'll beat your f****** a**." Tr. 30-31. Brooks testified that there was no one else present at the time the threats were made and the Ellis was looking directly at him.

{¶ 18} Turner did not directly witness the confrontation between Brooks and Ellis but testified that he heard Ellis tell his dog, "if he [Brooks] comes over here, *** to bite him." Tr. 49. Turner also testified that he heard Brooks respond, "why would you want to sick [sic] your dog on me," to which Ellis replied, "if you come over here[,] I'll f*** you up." Tr. 50.

{¶ 19} Brooks and Turner testified that Ellis first initiated threatening verbal contact with Brooks. Brooks's and Turner's testimony regarding Ellis's statements and conduct was consistent. Aside from Ellis's own testimony, the evidence adduced at trial established that Ellis acted in a threatening manner towards Brooks in clear violation of the language in the CSPO. The trial court "as finder of fact, may believe all, part, or none of a witness's testimony,' " and the trial court was entitled to disbelieve Ellis's testimony. State v. Flores-Lopez, 2017-Ohio-690, 85 N.E.3d 534, ¶ 63 (2d Dist.).

{¶ 20} For the foregoing reasons, we conclude that a rational finder of fact, after viewing the evidence in a light most favorable to the State, could have found that Ellis recklessly violated the CSPO by threatening and harassing Brooks. Additionally, having reviewed the entire record, we cannot conclude that the trier of fact clearly lost its way and created a manifest miscarriage of justice. The trial court clearly credited the testimony of the State's witnesses over Ellis, and we defer to the trial court's assessment of credibility. Having concluded that Ellis's conviction was supported by sufficient evidence and was not against the manifest weight of the evidence, his assignment of error is overruled,

{¶ 21} The judgment of the trial court is affirmed. TUCKER, P. J. and WELBAUM, J., concur. Copies sent to: Stephanie L. Cook
Andrew D. Sexton
Michael Hallock, Jr.
Hon. Daniel G. Gehres


Summaries of

State v. Ellis

COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
Nov 13, 2020
2020 Ohio 5272 (Ohio Ct. App. 2020)
Case details for

State v. Ellis

Case Details

Full title:STATE OF OHIO Plaintiff-Appellee v. THERON H. ELLIS, SR…

Court:COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

Date published: Nov 13, 2020

Citations

2020 Ohio 5272 (Ohio Ct. App. 2020)