author: HENDRICKSON, P.J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Andrew BINKS a.k.a. Hannah Binks, Defendant-Appellant.
    NO. CA2017-08-118
    Court of Appeals of Ohio, Twelfth District, Butler County.
    April 23, 2018
    Michael T. Gmoser, Butler County Prosecuting Attorney, Willa Concannon, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee
    John D. Hill, Jr., 125 East Court Street, Suite 1000, Cincinnati, Ohio 45202, for defendant-appellant
   HENDRICKSON, P.J.

{¶ 1} Defendant-appellant, Andrew Binks a.k.a. Hannah Binks, appeals from his conviction in the Butler County Area II Court for domestic violence. For the reasons set forth below, we affirm appellant's conviction.

{¶ 2} On November 7, 2015, two deputies from the Butler County Sheriff's Office responded to a domestic dispute at a home in Liberty Township, Butler County, Ohio. Upon arriving on the scene, Deputy Arlen Johnson and Deputy Marquis Givens spoke with appellant and his wife, Karen Binks, about the respective 9-1-1 phone calls each spouse had placed. The deputies were advised that an argument over a dating website Karen joined had started the evening of November 6, 2015, and had escalated the following morning. While angrily cursing and screaming at Karen, appellant grabbed the hood of Karen's sweatshirt and "choked [her] backwards." Appellant then took Karen's phone from her and threw it down the stairs into a wall, thereby destroying it. Appellant was arrested and charged with domestic violence in violation of R.C. 2919.25(C), a misdemeanor of the fourth degree. He was released on his own recognizance on November 9, 2015.

{¶ 3} On May 26, 2016, appellant appeared before the court for a bench trial to a magistrate. Prior to trial commencing, appellant moved to dismiss the charge against him on the basis that his statutory speedy-trial rights had been violated as the state failed to bring him to trial within the 45-days provided for by R.C. 2945.71(B)(1). The magistrate stated he would defer ruling on the motion until a later date and the trial commenced, with the state presenting testimony from Karen, Deputy Johnson, and Deputy Givens.

{¶ 4} Karen testified that at the time of the November 7, 2015 incident, she and appellant had been married for more than 20 years and were living together with their two children at their home in Liberty Township. On the evening of November 6, 2015, appellant discovered Karen had created an account for an online dating website. Karen stated that in response to this discovery, appellant "got violent," "kicked in a door," "threw things," and took her phone away from her. Karen ended up sleeping in her daughter's room that evening.

{¶ 5} Karen testified that the following morning, appellant handed over her cellphone and told her that if she deleted her dating account, he would let her keep her phone. Karen refused and appellant came up behind her, grabbed her by the hood of her sweatshirt, and "choked [her] backwards." Appellant then grabbed Karen's arms and took the cellphone out of her hand before throwing the phone down the stairs and into a wall, thereby destroying the phone.

{¶ 6} When appellant grabbed Karen by the hood of her sweatshirt, Karen felt pressure on her neck. Karen felt "very scared" as appellant was cursing and screaming at her and "yelling things, like he was going to hurt [her]." Appellant told Karen to get out of the house and to give him the phone. Karen felt appellant would harm her as he had been physically aggressive with her in the past. She recalled a recent occasion where appellant had "punched [her] in the chest." She believed appellant would cause her physical harm as he was "very irrational, very angry. He was up most of the night turning on and off lights, trying to keep me awake. * * * He was violent toward my daughter-just screaming at her." As a result of appellant's behavior, Karen used her daughter's cellphone to call 9-1-1.

{¶ 7} Karen denied that she struck appellant or caused him any injuries. On cross-examination, she admitted that she was not treated for any injuries caused by appellant on November 7, 2015.

{¶ 8} Deputy Johnson testified that after he and Deputy Givens responded to Karen's and appellant's home on November 7, 2015, he spoke with Karen inside the residence while Givens spoke with appellant on the porch of the residence. Johnson observed redness around Karen's neck, stating that "the whole front side was redness." He also observed an upstairs door in the residence that looked like it had been kicked and a "smashed" cellphone laying broken on the floor at the bottom of the stairs. Johnson did not take any pictures of Karen's neck or of the broken cellphone.

{¶ 9} After speaking to Karen, Johnson spoke with appellant. Appellant admitted there had been an altercation over the dating website Karen had joined, but stated Karen was the aggressor. Appellant claimed Karen pushed him in the chest when they were "tussling" over the cellphone. However, appellant admitted he grabbed the hood of Karen's sweatshirt and pulled her backwards before taking the phone and throwing it down the stairs. Johnson did not observe any injuries or marks on appellant, and when he asked appellant whether he was injured, appellant told him "No, I'm not injured." However, after appellant was arrested, placed in handcuffs, and was being transported to jail, appellant began to loudly complain of chest pain. Appellant was worried that one of his breast implants may have ruptured. Pursuant to a departmental policy requiring deputies to obtain medical attention when a prisoner complains of injury or pain, appellant was examined by paramedics at the jail before being transported to an emergency room as a precautionary measure.

{¶ 10} Deputy Givens testified appellant admitted to "tussling" with Karen over her cellphone after they got into an argument. Although appellant claimed Karen shoved him in the chest, Givens did not see any injuries to appellant's person and appellant did not initially complain of any injury. It was only after appellant was being transported to jail that he began to complain he was in such pain that he required medical attention.

{¶ 11} Following Givens' testimony, appellant moved for acquittal pursuant to Crim.R. 29(A). His motion was denied, and he took the stand in his own defense. Appellant testified about a version of events that differed from Karen's version. Appellant stated that on November 6, 2015, after learning that Karen had joined an online dating website, he and Karen got into an argument and he remotely deleted "everything" from her cellphone. The following morning, Karen asked appellant to restore her cellphone in exchange for her quitting the dating website. However, when appellant went to restore the phone, he discovered Karen had been using the website for longer than he originally knew about and had been dating a number of people. Appellant refused to restore the phone and both he and Karen started yelling at one another.

{¶ 12} Appellant denied that he threatened to harm Karen, but stated their argument became physical when he refused to return the cellphone to Karen. Appellant testified Karen began to hit him in his chest, and he responded by grabbing the hood of Karen's sweatshirt to pull her off of him. Appellant claimed Karen had been hitting him on the right side of his upper chest, near his breast implant, and that she caused him harm. After moving Karen away from him, appellant threw Karen's cellphone down the stairs before calling 9-1-1.

{¶ 13} Appellant testified that when he spoke with Deputy Givens, he told Givens that his chest hurt "but didn't really go into a discussion" of the injuries with the deputy. He also did not show his injuries to Deputy Givens or Deputy Johnson because he was uncomfortable taking off his shirt and showing his chest to male deputies.

{¶ 14} Appellant explained that when he was transported to the jail, he was placed in handcuffs that were secured behind his back and this strained his chest muscles, causing the muscles to painfully spasm. Appellant claimed that when he was examined at the emergency room, he noticed he had bruises on his chest. He denied that the bruises existed prior to Karen hitting him in the chest. Although appellant claimed he took photographs of the bruises, he did not introduce the photographs into evidence. Appellant did, however, introduce into evidence Karen's police statement to the deputies and documents from the sheriff's office indicating appellant had complained of chest pain upon his November 7, 2015 arrest and had "bruising noted to upper part of right breast" when examined by a nurse and paramedic two days later, on November 9, 2015.

{¶ 15} After hearing the foregoing testimony, the magistrate took the matter under advisement. On June 6, 2016, the magistrate found appellant guilty of domestic violence. Appellant renewed his motion to dismiss based on a violation of his speedy-trial rights, and the magistrate indicated he would rule on the motion at sentencing.

{¶ 16} On July 20, 2016, appellant filed a motion for findings of fact and conclusions of law. He also filed a written motion to dismiss for violation of his speedy-trial rights. The magistrate filed his findings of fact and conclusions of law on August 22, 2016. Appellant appeared before the court for sentencing on September 15, 2016. At this time, the court denied appellant's motion to dismiss, and sentenced appellant to 15 days in jail (with 3 days of jail-time credit), six months of probation, a $100 fine, court costs, and $800 in restitution.

{¶ 17} Appellant filed objections to the magistrate's decision, arguing the trial court erred in denying his motion to dismiss and that the state failed to present sufficient evidence to support his conviction for domestic violence as "[n]o * * * threat (verbal or otherwise) was made" against Karen. The trial court overruled appellant's objections, finding appellant was tried within the 45 days prescribed by R.C. 2945.71(B)(1) after taking into consideration tolling events and appellant's waiver of time. The court also determined that "there was more than sufficient evidence to prove a violation of R.C. 2919.25(C)."

{¶ 18} Appellant appealed his conviction, raising four assignments of error. For ease of discussion, we will address his third and fourth assignments of error together.

{¶ 19} Assignment of Error No. 1:

{¶ 20} THE TRIAL COURT ERRED IN OVERRULING [APPELLANT'S] MOTION TO DISMISS FOR VIOLATION OF HIS RIGHT TO A SPEEDY TRIAL.

{¶ 21} In his first assignment of error, appellant argues the trial court erred in denying his motion to dismiss for violation of his speedy-trial rights. He contends the trial court erred when it found certain periods of time, namely the time between November 12, 2015 and November 19, 2015 and the time between May 19, 2016 and May 26, 2016, tolled and chargeable to him, rather than the state.

{¶ 22} The right to a speedy trial is guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by Section 10, Article I the Ohio Constitution. State v. Taylor , 98 Ohio St.3d 27, 2002-Ohio-7017, 781 N.E.2d 72, ¶ 32 ; State v. Miller , 12th Dist. Warren No. CA2009-01-008, 2009-Ohio-4831, 2009 WL 2936279, ¶ 8. "[T]he General Assembly * * * enacted Ohio's speedy-trial statutes to preserve this right." Id. , citing R.C. 2945.71, et seq. Compliance with these statutes is mandatory and the statutes "must be strictly construed against the state." Id. , citing State v. Cox , 12th Dist. Clermont No. CA2008-03-028, 2009-Ohio-928, 2009 WL 501564, ¶ 12.

{¶ 23} R.C. 2945.73(B) provides that "[u]pon motion made at or prior to the commencement of trial, a person charged with an offense shall be discharged if he is not brought to trial within the time required by sections 2945.71 and 2945.72 of the Revised Code." Pursuant to R.C. 2945.71(B)(1), a person facing a criminal charge for a fourth-degree misdemeanor must be brought to trial within 45 days after the person's arrest or the service of summons.

{¶ 24} Once a defendant demonstrates he was not brought to trial within the permissible time period, the accused presents a prima facie case for dismissal based on a speedy-trial violation. Miller , 2009-Ohio-4831 at ¶ 9, citing State v. Masters , 172 Ohio App.3d 666, 2007-Ohio-4229, ¶ 10, 876 N.E.2d 1007 (3d Dist.). The burden then shifts to the state to prove that time was sufficiently tolled and the speedy-trial time period extended. Id.

{¶ 25} "Upon review of a speedy-trial issue, a court is required to count the days of delay chargeable to either side and determine whether the case was tried within the applicable time limits." State v. Sanchez , 110 Ohio St.3d 274, 2006-Ohio-4478, ¶ 8, 853 N.E.2d 283. R.C. 2945.72 enumerates specific instances in which the time period that a defendant must be brought to trial in is extended and includes periods of delay caused by an accused's lack of counsel, periods of continuance caused by an accused's own motion, and "the period of any reasonable continuance granted other than upon the accused's own motion." R.C. 2945.72(C) and (H). Additionally, the state may show that the defendant has waived his speedy-trial rights. State v. Schuster , 12th Dist. Clermont Nos. CA2015-05-040 and CA201505041, 2015-Ohio-4818, 2015 WL 7430215, ¶17. "To be effective, an accused's waiver of his or her constitutional and statutory rights to a speedy trial must be expressed in writing or made in open court on the record." State v. King , 70 Ohio St.3d 158, 637 N.E.2d 903 (1994), syllabus.

{¶ 26} Appellate review of speedy-trial issues involves a mixed question of law and fact. State v. Messer , 12th Dist. Clermont No. CA2006-10-084, 2007-Ohio-5899, 2007 WL 3243535, ¶ 7. An appellate court must give due deference to the trial court's findings of fact if they are supported by competent, credible evidence, but will independently review whether the trial court correctly applied the law to the facts of the case. Id.

{¶ 27} Appellant was arrested on November 7, 2015. He was not brought to trial until May 26, 2016-201 days after his arrest, which is well outside the 45-day time period provided by R.C. 2945.71(B)(1). However, as discussed below, certain portions of this time were tolled and the time chargeable to appellant.

{¶ 28} The time period appellant remained jailed, from November 7, 2015 to November 9, 2015, is chargeable to the state. Pursuant to the triple-count provision set forth in R.C. 2945.71(E), "each day during which the accused is held in jail in lieu of bail on the pending charge shall be counted as three days." However, though time starts to run from the date of a defendant's arrest, the first day itself is not counted when computing the statutory time period. See State v. Halcomb , 12th Dist. Warren No. CA94-06-055, 1994 WL 663479, at *1, 1994 Ohio App. LEXIS 5314, *3 (Nov. 28, 1994), citing State v. Steiner , 71 Ohio App.3d 249, 250-51, 593 N.E.2d 368 (9th Dist. 1991) ; Crim.R. 45(A). Therefore, appellant was held in jail for two days, and gets credit for a total of six days. These six days are charged to the state-as are the two days (November 10 and 11, 2015) that passed before appellant's scheduled arraignment, for a total of 8 days.

{¶ 29} At appellant's November 12, 2015 arraignment, appellant stated he would be hiring an attorney to represent him. After the trial court indicated it would continue the matter until December 10, 2015 to allow appellant to obtain representation, appellant questioned whether he could "self-represent, enter a plea, and then hire an attorney at a later date" as he did not "want to add additional time to this * * * case." Following a discussion, the trial court ultimately continued the matter until December 10, 2015, and noted in its entry that the continuance was "at [appellant's] request" as appellant was hiring his own attorney. On November 19, 2015, appellant appeared before the court and waived his speedy-trial rights. Appellant expressed a willingness to sign a waiver of time, telling the court that "once I spoke with my attorney, I can sign the time waiver with no problem. * * * I've come prepared to sign it."

{¶ 30} Appellant contends the seven days that passed between November 12, 2015 and November 19, 2015 should be charged to the state as he did not expressly waive his statutory speedy-trial rights. We disagree and find that the time was properly charged to appellant pursuant to R.C. 2945.72(C), which provides that the time in which an accused must be brought to trial may be extended by "[a]ny period of delay necessitated by the accused's lack of counsel, provided that such delay is not occasioned by any lack of diligence in providing counsel to an indigent accused upon his request as required by law." Appellant indicated he was hiring counsel, and the court continued the proceedings to allow appellant to obtain an attorney. The seven days was, therefore, properly determined by the trial court to be tolled and chargeable to appellant. See, e.g., State v. Seward , 4th Dist. Ross No. 04CA2784, 2005-Ohio-934, 2005 WL 503973, ¶ 16 (finding time tolled between the date the defendant advised the court he was retaining counsel and the date counsel entered an appearance); State v. Allen , 8th Dist. Cuyahoga No. 90552, 2008-Ohio-5251, 2008 WL 4516665, ¶ 15-17.

{¶ 31} After waiving time on November 19, 2015, appellant appeared before the court on December 10, 2015 and signed a written waiver of time until January 21, 2016. The 63 days that passed between November 19, 2015 and January 21, 2016 were therefore properly charged to appellant.

{¶ 32} On January 21, 2016, appellant appeared before the court and requested the matter be set for trial. Although the case was set to go to trial on February 18, 2016, defense counsel appeared before the court on that date and requested a continuance until May 19, 2016. The 28 days that passed between January 21, 2016 and February 18, 2016 were properly charged to the state. However, the speedy-trial clock was tolled from February 18, 2016 to May 19, 2016, and the 91 days that passed properly charged to appellant pursuant to R.C. 2945.72(H), as he requested the continuance.

{¶ 33} When the case was called on May 19, 2016, the state requested a continuance, indicating that Karen faced contempt charges in another court if she testified against appellant in the criminal case. Apparently, while the criminal case was pending against appellant, appellant and Karen sought to divorce one another. Less than 24 hours before the criminal trial was set to commence on May 19, 2016, the divorce court placed Karen under a contempt order and threatened her with a 30-day jail sentence if she did not cooperate in getting the domestic violence charge appellant faced dismissed. The state asked for a continuance to investigate the contempt charges Karen faced. Over appellant's objection, the court granted a one-week continuance and set the matter for trial on May 26, 2016.

{¶ 34} Appellant argues this seven-day period of time should count against the state as it "does not fall within the 'reasonable continuance' exception of R.C. 2954.72(H)." Appellant contends that because the divorce court's contempt order was "plainly and patently illegal as against public policy" and the divorce court "had no legal grounds upon which to insinuate itself into the criminal proceedings," the continuance was unnecessary and unreasonable. He also argues that because Karen indicated she would cooperate with the prosecutor to dismiss the domestic violence charge in accordance with the divorce court's order, and the prosecutor "opted of [her] own initiative to disregard Karen's wishes and request the continuance so [the state] could continue to prosecute [appellant]," the delay caused by the continuance should be charged against the state. We disagree.

{¶ 35} R.C. 2945.72(H) specifically provides that the time within which an accused must be brought to trial may be extended by "the period of any reasonable continuance granted other than upon the accused's own motion." With respect to this provision, the Ohio Supreme Court has held that "it is difficult, if not unwise, to establish a per se rule of what constitutes 'reasonableness' beyond the [time periods set forth in] R.C. 2945.71. Invariably, resolution of such a question depends on the peculiar facts and circumstances of a particular case." (Emphasis sic.) State v. Saffell , 35 Ohio St.3d 90, 91, 518 N.E.2d 934 (1988). The supreme court found a continuance to accommodate an arresting officer's appearance as a witness at trial was reasonable and tolled the speedy-trial clock pursuant to R.C. 2945.71(H). Id. at 91-92, 518 N.E.2d 934.

{¶ 36} Similarly, in State v. Nelson , 12th Dist. Clinton No. CA2007-11-046, 2009-Ohio-555, 2009 WL 295400, ¶ 13-28, we found it was reasonable for a court to continue a trial date by more than a month to ensure an expert witness's appearance at trial. In doing so, we noted that in accordance with R.C. 2945.72(H), "an extension initiated by the state's motion does not necessarily run afoul of the speedy trial time limit." Id. at ¶ 25. "[It is] well-settled that the availability of a key prosecution witness is a reasonable ground for granting a continuance pursuant to R.C. 2945.72(H)." Id. , citing State v. Mitchell , 7th Dist. Mahoning No. 06-MA-169, 2008-Ohio-645, 2008 WL 435009, ¶ 34.

{¶ 37} Further, in State v. Adkins , 144 Ohio App.3d 633, 641, 761 N.E.2d 94 (12th Dist. 2001), this court held that

[w]hen a witness fails to appear, a court does not abuse its discretion by extending the trial date beyond a prescribed time period of the prosecutor has used 'due diligence' to insure the attendance of the witness. State v. Reeser , 63 Ohio St.2d 189, 407 N.E.2d 25 (1980). The period within which a defendant must be tried is extended when a trial court grants a continuance under these circumstances.

We determined that a delay of 14 days to secure the witness's presence was reasonable. Id.

{¶ 38} Although the present situation is somewhat different from those in Saffell , Nelson , and Adkins , in that Karen was not physically absent or unavailable on May 19, 2016, the divorce court's unexpected order threatening Karen with contempt for acting as a witness in the criminal proceedings meant Karen was, in essence, unavailable to testify. The trial court's decision to delay trial by seven days to allow the state to investigate the matter and to resolve the issue so that Karen could testify was reasonable under the circumstances. Therefore, pursuant to R.C. 2945.72(E), the time to bring appellant to trial was tolled by seven days, and these days are not chargeable to the state.

{¶ 39} Accordingly, taking into consideration the tolling events and appellant's waiver of time, we find that appellant was brought to trial within the 45-day limit prescribed by R.C. 2945.71(B)(1). Between the date of his arrest and the date his trial commenced, only 36 days chargeable to the state had elapsed. Therefore, the trial court did not err in denying appellant's motion to dismiss as his statutory speedy-trial rights were not violated.

{¶ 40} Appellant's first assignment of error is overruled.

{¶ 41} Assignment of Error No. 2:

{¶ 42} THE TRIAL COURT ABUSED ITS DISCRETION IN IMPROPERLY CONSIDERING RULE 404(B) "OTHER ACTS" EVIDENCE OF PRIOR INSTANCES OF ALLEGED DOMESTIC VIOLENCE PERPETRATED BY [APPELLANT] AGAINST KAREN BINKS.

{¶ 43} In his second assignment of error, appellant argues the trial court erred in allowing Karen to testify, over defense counsel's objection, about past incidents in which appellant physically abused her. At trial, after Karen described appellant breaking her phone and grabbing the hood of her sweatshirt, the following testimony and discussion occurred:

[Prosecutor]: How did this incident make you feel?
[Karen]: I was very scared. It's not the first time it's happened .
[Defense Counsel]: Objection. Move to strike.
[Prosecutor]: Judge, that type of testimony is allowed to * * * show the defendant-or, I'm sorry-the victim's feelings. It's not being asserted for the truth of whether these incidents occurred, but it's explaining her thought process.
THE COURT: I'm going to let it stand and give it the weight that I think it-it should have. Ask another question.
[Prosecutor]: Did you believe that he would harm you?
[Karen]: Yes.
[Prosecutor]: Why is that?
[Karen]: Because he has in the past .
[Defense Counsel]: Objection. Move to strike.
THE COURT: I'm going to grant that on the idea of timeframe.
[Prosecutor]: You want us to lay a foundation for that?
THE COURT: Yes, I do, if you're going to ask it again.
[Prosecutor]: When I asked you why did you believe that he would hurt you again, you stated that he had before.
[Karen]: Yes.
[Prosecutor]: Is that recent in time to November 7th of 2015?
[Karen]: Yes.
[Prosecutor]: Can you tell me what occurred on times only right around November 7th of 2015?
[Karen]: He has punched me in the chest .
[Defense Counsel]: Judge, I'm going to object. These prior bad acts are not admissible. No notice was provided as to what specifically they are under Rule 404, and there has been no paperwork or anything to corroborate that. And I respectfully ask the Court to exclude any testimony of that effect.
THE COURT: Was discovery asked for and granted and given?
* * *
[Defense counsel]: Judge, I don't believe I filed a motion * * *.
* * *
THE COURT: I don't see one in the file. I'm going to overrule your motion on the strength that there's been no formal request for discovery by the defendant through any one of his counsel, and the acceptance of what was given, by way of discovery by the prosecution, has been accepted as to what would normally be given, unless there was a specific sort of situation wherein specifically evidence [sic]-asking for evidence of any 404(B)-type statement-and I say "type statement," not specifically by the rule.

(Emphasis added.) The court therefore overruled defense counsel's objection to the lack of notice and allowed Karen's testimony on the basis that there had been no formal request for discovery filed by the defense.

{¶ 44} Appellant contends Karen's testimony was inadmissible under Evid.R. 404(B) as the state neglected to give advance notice of its intent to introduce the "other acts" evidence. Appellant asserts that defense counsel's failure to request discovery has no bearing on the state's duty under Evid.R. 404 to give advance notice of its intent to use the "other acts" evidence. He further argues that Karen's testimony about the "other acts" of abuse should have been excluded as the probative value of the evidence was outweighed by the danger of unfair prejudice.

{¶ 45} "A trial court has broad discretion in the admission and exclusion of evidence and unless it clearly abused its discretion and appellant is materially prejudiced thereby, an appellate court should not disturb the decision of the trial court." State v. Martin , 12th Dist. Butler No. CA2007-01-022, 2007-Ohio-7073, 2007 WL 4555784, ¶ 9. An abuse-of-discretion standard of review is a deferential review. State v. Morris , 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 14. An abuse of discretion is more than an error of law or judgment; it implies that the trial court's decision was unreasonable, arbitrary, or unconscionable. State v. Perkins , 12th Dist. Clinton No. CA2005-01-002, 2005-Ohio-6557, 2005 WL 3359153, ¶ 8.

{¶ 46} "Evidence that an accused committed a crime other than the one for which he is on trial is not admissible when its sole purpose is to show the accused's propensity or inclination to commit crime or that he acted in conformity with bad character." State v. Williams , 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 15. Pursuant to Evid.R. 404(B),

[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. In criminal cases, the proponent of evidence to be offered under this rule shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial .

(Emphasis added.)

{¶ 47} It is uncontested that the state did not provide appellant with notice in advance of trial of its intent to introduce appellant's prior abusive acts towards the victim. The trial court's determination that appellant's failure to make a formal discovery request somehow waived the notice provision of Evid.R. 404(B) is incorrect. The obligation of the state to provide notice of its intent to use the "other acts" evidence pursuant to Evid.R. 404(B) is completely independent of a request for discovery under Crim.R. 16. "If providing discovery alone were sufficient to satisfy the notice requirements of Evid.R. 404(B) the rule would be superfluous." State v. Plevyak , 11th Dist. Trumbull No. 2013-T-0051, 2014-Ohio-2889, 2014 WL 2968530, ¶ 18.

{¶ 48} While the state should have provided advance notice of its intent to introduce the "other acts" evidence, its failure to do so does not automatically mean the trial court erred by admitting the evidence or that appellant was prejudiced by the admission of the evidence. As the Staff Notes accompanying Evid.R. 404(B) indicate, "[t]he rule should not be construed to exclude otherwise relevant and admissible evidence solely because of a lack of notice, absent a showing of bad faith." 2012 Staff Note, Evid.R. 404. There is no evidence that the prosecutor acted in bad faith-that is, withholding notice of the "other acts" in order to gain a tactical advantage at trial. Appellant does not claim in his brief that the state acted in bad faith or that the lack of notice caught him by surprise. Instead, he argues the evidence should not have been admitted and was prejudicial as it was inflammatory in that it tended to show he had a propensity to commit the offense.

{¶ 49} In Williams , 2012-Ohio-5695, 134 Ohio St.3d 521, 983 N.E.2d 1278, the supreme court outlined a three-part test for courts to use when determining the admissibility of "other acts" evidence. First, the court should "consider whether the other acts evidence is relevant to making any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence." Id. at ¶ 20, citing Evid.R. 401. Second, the court should determine "whether evidence of the other crimes, wrongs, or acts is presented to prove the character of the accused in order to show activity in conformity therewith or whether the other acts evidence is presented for a legitimate purpose, such as those stated in Evid.R. 404(B)." Id. Third, the court should "consider whether the probative value of the other acts evidence is substantially outweighed by the danger of unfair prejudice." Id. , citing Evid.R. 403.

{¶ 50} With respect to the first and second parts of the test, this court has previously recognized that within the context of a trial for domestic violence, "prior acts of violence between a defendant and the victim are highly probative in establishing the victim's belief of impending harm." State v. Rhoads , 12th Dist. Clermont No. CA2012-05-040, 2013-Ohio-152, 2013 WL 221512, ¶ 29. In the prosecution of domestic violence under R.C. 2919.25(C), "the state of mind of the victim is an essential element of [the] crime." State v. Drake , 135 Ohio App.3d 507, 510, 734 N.E.2d 865 (12th Dist. 1999). As such, evidence of a defendant's prior abuse of the victim is admissible under Evid.R. 404(B) to prove the victim's state of mind at the time of the offense. See id. at 511, 734 N.E.2d 865 ; State v. Collie , 108 Ohio App.3d 580, 584, 671 N.E.2d 338 (1st Dist. 1996) (holding that "[e]vidence of specific past acts toward the same victim * * * can be used to establish the basis of the victim's belief that the offender is about to cause imminent physical harm, an element of [the] crime"). The "other acts" evidence was therefore presented for a legitimate purpose.

{¶ 51} As for the third part of the test, appellant claims Karen's testimony was highly prejudicial as it was "so inflammatory that it may just as well have been offered to show that [appellant] had a propensity to commit spousal abuse." In evaluating appellant's claim of prejudice, it is important to note that appellant was tried to the bench. The Ohio Supreme Court has recognized that in bench trials, the trial judge is "presumed to consider only the relevant material and competent evidence in arriving at a judgment unless the contrary affirmatively appears from the record." State v. Eubank , 60 Ohio St.2d 183, 187, 398 N.E.2d 567 (1979). See also State v. Flores , 12th Dist. Warren No. CA2014-03-037, 2014-Ohio-5751, 2014 WL 7390588, ¶ 29. We must therefore presume that the trial court considered the "other acts" evidence only for its proper limited purpose and not to show appellant's propensity or inclination to commit crime or that he acted in conformity with bad character. See State v. Pettaway , 3d Dist. Seneca No. 13-14-18, 2015-Ohio-1597, 2015 WL 1881082, ¶ 31 (noting that "a judge is presumed to use evidence for its proper limited purposes and therefore, concern that other acts evidence will be improperly considered by the trier of fact does not exist in a bench trial").

{¶ 52} Accordingly, although we find the trial court erred in overruling appellant's objection to Karen's "other acts" testimony on the basis that defense counsel failed to make a formal request for discovery, we find that the error was harmless. Karen's testimony was properly admitted at trial as the "other acts" evidence was relevant, offered for a legitimate purpose, and its probative value was not outweighed by the danger of unfair prejudice. Appellant's second assignment of error is, therefore, overruled.

{¶ 53} Assignment of Error No. 3:

{¶ 54} [APPELLANT'S] CONVICTION WAS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶ 55} Assignment of Error No 4:

{¶ 56} [APPELLANT'S] CONVICTION WAS NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE.

{¶ 57} In his third and fourth assignments of error, appellant argues his domestic violence conviction is against the manifest weight of the evidence and is not supported by sufficient evidence.

{¶ 58} Whether the evidence presented at trial is legally sufficient to sustain a verdict is a question of law. State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997) ; State v. Grinstead , 194 Ohio App.3d 755, 2011-Ohio-3018, ¶ 10, 958 N.E.2d 177 (12th Dist.). When reviewing the sufficiency of the evidence underlying a criminal conviction, an appellate court examines the evidence in order to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Paul , 12th Dist. Fayette No. CA2011-10-026, 2012-Ohio-3205, 2012 WL 2877754, ¶ 9. Therefore, "[t]he 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." State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

{¶ 59} On the other hand, a manifest weight of the evidence challenge examines the "inclination of the greater amount of credible evidence, offered at a trial, to support one side of the issue rather than the other." State v. Barnett , 12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, 2012 WL 1940800, ¶ 14. To determine whether a conviction is against the manifest weight of the evidence, the reviewing court must look at the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether in resolving the 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. Graham , 12th Dist. Warren No. CA2008-07-095, 2009-Ohio-2814, 2009 WL 1659049, ¶ 66. An appellate court will overturn a conviction due to the manifest weight of the evidence "only in the exceptional case in which the evidence weighs heavily against the conviction." Id. , citing State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).

{¶ 60} Further, although the legal concepts of sufficiency of the evidence and weight of the evidence are quantitatively and qualitatively different, "[a] determination that a conviction is supported by the manifest weight of the evidence will also be dispositive of the issue of sufficiency." State v. Jones , 12th Dist. Butler No. CA2012-03-049, 2013-Ohio-150, 2013 WL 226898, ¶ 19.

{¶ 61} Appellant was convicted of domestic violence in violation of R.C. 2919.25(C), which provides that "[n]o person, by threat of force, shall knowingly cause a family or household member to believe that the offender will cause imminent physical harm to the family or household member." Appellant argues that the state failed to prove every element of the offense, as it did not demonstrate that he "knowingly" caused Karen to believe that he would cause her imminent physical harm by means of a "threat of force."

{¶ 62} "A person acts knowingly, regardless of purpose, when the person is aware that the person's conduct will probably cause a certain result or will probably be of a certain nature." R.C. 2901.22(B). "Force" is defined as "any violence, compulsion, or constraint physically exerted by any means upon or against a person or thing." R.C. 2901.01(A)(1). While the term "threat" is not defined by statute, the Ohio Supreme Court has stated that the term "represents a range of statements or conduct intended to impart a feeling of apprehension in the victim." (Emphasis added.) State v. Cress , 112 Ohio St.3d 72, 2006-Ohio-6501, 858 N.E.2d 341, ¶ 39. "[A] threat need not be verbalized; rather, the threat can be implied by the offender's actions." State v. Terzo , 12th Dist. Butler No. CA2002-08-194, 2003-Ohio-5983, 2003 WL 22532890, ¶ 18.

{¶ 63} After reviewing the record, weighing inferences and examining the credibility of the witnesses, we find that appellant's conviction for domestic violence was supported by sufficient evidence and was not against the weight of the evidence. The state presented testimony and evidence from which the trier of fact could have found all the essential elements of the offense proven beyond a reasonable doubt. The state presented evidence that appellant's actions knowingly caused Karen to believe appellant would physically harm her. Appellant's actions in physically grabbing Karen and angrily shouting and cursing at her constituted a threat of force. Karen testified appellant grabbed the hood of her sweatshirt and "choked [her] backwards" while cursing, screaming, "yelling things, like he was going to hurt [her]," and telling her to "get out" of the house. Appellant also grabbed Karen's arms before taking her cellphone and throwing the cellphone down the stairs. Appellant's conduct, coupled with his actions from the night before where he kicked in a door and threw things, as well as a recent incident where he punched Karen in the chest, caused Karen to believe that appellant would cause her imminent physical harm.

{¶ 64} Appellant argues the trial court "credited the wrong witness' testimony" as Karen was a proven liar whose "story made very little sense." As proof that Karen lied in her testimony, appellant points to conflicting evidence about whether he yelled at Karen after the deputies arrived on the scene and whether Karen caused him physical injury. At trial, Karen testified appellant continued to shout at her, yelling at her "not [to] have him arrested" after the deputies arrived. Karen also denied that she hit appellant or caused him injury. In contrast, Deputy Johnson testified that appellant did not yell at Karen after the deputies' arrival on scene and appellant testified he was injured when Karen hit him in the chest, an injury appellant contends was corroborated by records obtained from the sheriff's office.

{¶ 65} As an initial matter, we note that "[i]t is well-established that when conflicting evidence is presented at trial, a conviction is not against the manifest weight of the evidence simply because the trier of fact believed the prosecution testimony." State v. Lunsford , 12th Dist. Brown No. CA2010-10-021, 2011-Ohio-6529, 2011 WL 6382534, ¶ 17. When there is a conflict in the testimony of witnesses, it is for the trier of fact to determine the weight and credibility to be given to such evidence. State v. Marcum , 12th Dist. Butler No. CA2017-05-057, 2018-Ohio-1009, 2018 WL 1377846, ¶ 31, citing State v. DeHass , 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. "Credibility determinations are based not only on the substance of the testimony, but from all facts and circumstances surrounding the testimony, particularly the manner and demeanor of the witnesses, which only the trier of fact can observe." Id. As the trier of fact, the magistrate was free to believe all, part, or none of the witnesses' testimony. State v. Coleman , 12th Dist. Fayette No. CA2011-09-020, 2012-Ohio-3630, 2012 WL 3264258, ¶ 19. Here, the magistrate clearly found Karen's testimony credible, stating, "This Magistrate believed the victim was telling the truth and she was not lying. This Magistrate believes [the] victim was more believable than the Defendant." The court was entitled to discredit appellant's testimony that Karen was the aggressor in the incident, especially in light of the fact that appellant's testimony largely corroborated Karen's version of events-he admitted to arguing with Karen, pulling on the hood of her sweatshirt, taking her phone from her, and throwing the phone down the stairs.

{¶ 66} Accordingly, having thoroughly reviewed the record in the present case, we find that the trial court did not lose its way and create such a manifest miscarriage of justice that appellant's conviction for domestic violence must be reversed. Appellant's conviction was not against the manifest weight of the evidence and was, therefore, necessarily supported by sufficient evidence. See Jones , 2013-Ohio-150 at ¶ 19.

{¶ 67} Appellant's third and fourth assignments of error are overruled.

{¶ 68} Judgment affirmed.

RINGLAND and M. POWELL, JJ., concur.

      At the time of appellant's arrest and during the trial court proceedings, appellant was in the process of transitioning from male to female. The record refers to appellant as both "Andrew" and "Hannah" and uses both male and female pronouns. At trial, appellant suggested that for clarity the court should use the name "Andrew" and male pronouns when referring to him. In his appellate brief, appellant refers to himself as "Andrew" and uses male pronouns. For consistency and clarity, we will also refer to appellant as "Andrew" and will use male pronouns.

      Although appellant expressed in open court that he was waiving his speedy-trial rights, no written waiver of time was filed with the court on November 19, 2015. This is not significant, as an accused may waive his constitutional and statutory rights to a speedy trial in open court on the record. See State v. King , 70 Ohio St.3d 158, 637 N.E.2d 903 (1994), syllabus.


source: Caselaw Access Project

author: CALLAHAN, Judge.

license: Public Domain

text:
    IN RE: ADOPTION OF L.R.B.
    No. 28678
    Court of Appeals of Ohio, Ninth District, Summit County.
    Dated: April 18, 2018
    DUSTIN E.J. MEIER, pro se, Appellant.
    JOHN M. DOHNER, Attorney at Law, Akron, for Appellee.
    DECISION AND JOURNAL ENTRY
   CALLAHAN, Judge.

{¶ 1} Dustin Meier appeals from a judgment of the Summit County Common Pleas Court, Probate Division, determining that his consent was not necessary for the adoption of his biological child ("Child"). This Court affirms.

I.

{¶ 2} Child was born to Mr. Meier ("Biological Father") and Larami Ball, fka Larami McLean, ("Mother") in California in 2005. Biological Father and Mother were never married, but Biological Father was listed on Child's birth certificate. According to a 2006 paternity test filed by Biological Father, "the probability of [his] paternity [of Child] is 99.99%."

{¶ 3} Biological Father filed an action in California to establish his parentage. By entry dated May 8, 2006, the court found that Mother and Biological Father are the parents of Child. The court further incorporated into that entry the parents' stipulation and agreement concerning child custody and visitation which specified that "[t]he parents shall share joint legal custody" of Child whose "[p]rimary [r]esidence shall be with [M]other."

{¶ 4} Mother subsequently married Christopher Ball ("Stepfather"). In 2008, the California court granted Mother permission to move to Ohio. Thereafter, Mother and Biological Father instituted multiple actions concerning Child. Biological Father commenced actions in Wayne County, Ohio and Macon County, Illinois. Mother commenced actions in Summit County, Ohio.

{¶ 5} A more complete history of Biological Father's and Mother's various actions can be found in Ball v. Meier , 9th Dist. Summit Nos. 26079, 26109, 2012-Ohio-5864, 2012 WL 6206659, ¶ 2-4, and Meier v. Ball , Ill.App. 4th Dist. No. 4-13-0153, 2013 WL 3148935, at *2 (June 18, 2013). As it relates to the arguments raised by the parties in the current appeal, this Court previously "conclude[d] that Ohio ha[d] jurisdiction to modify the California orders." Ball at ¶ 11. The Illinois court, on the other hand, found it "was devoid of jurisdiction" and recognized this Court's determination "that Ohio-not Illinois-had jurisdiction." Meier at *6 ; see Ball at ¶ 12-13 (noting that parties could not by agreement confer jurisdiction upon an Illinois court).

{¶ 6} On September 12, 2016, Stepfather filed a petition to adopt Child in the Summit County Common Pleas Court, Probate Division. The petition alleged that Biological Father's consent was not required because he had "failed without justifiable cause to provide more than de minimis contact with the minor for a period of at least one year immediately preceding the filing of the adoption petition * * *." The petition listed Biological Father's address as 4840 Forest Parkway, Decatur, Illinois 62521.

{¶ 7} Counsel for Stepfather filed an affidavit for service by publication. He averred that he had represented Mother in the various Ohio and Illinois court actions involving Biological Father. He represented that the last address any of those courts had for Biological Father was 4840 Forest Parkway, Decatur, Illinois 62521, but mail had been returned in the most recent court action from that address. He continued that an internet search for Biological Father's address also referred to the Decatur, Illinois address. He further averred that neither he, Mother, nor Stepfather knew Biological Father's whereabouts or residence, and that Biological Father's address could not be ascertained with reasonable diligence. Upon review of the affidavit, the court ordered service of notice by publication. Proof of publication was filed with the court stating that the notice was published in the Akron Legal News on September 29, October 6, and October 13, 2016.

{¶ 8} On September 21, 2016, the court sent a "Notice of Consent Hearing" and a "Notice of Hearing on Petition for Adoption" to Biological Father at 4840 Forest Parkway, Decatur, Illinois 62521. The notices informed Biological Father that Stepfather had filed a petition to adopt Child and that a hearing was scheduled for October 27, 2016 to determine whether Biological Father's consent was necessary for the adoption. The notices further informed Biological Father that, to contest the adoption, he was required to file an objection "within fourteen days after proof of service of [the] notice[s]" and "[he] must also appear at the hearing." (Emphasis deleted.)

{¶ 9} The hearing went forward as scheduled before the magistrate. Biological Father did not appear at the hearing. Mother testified at the hearing. In addition, orders from the California court and the Summit County Common Pleas Court, Domestic Relations Division, were entered into evidence. That same day the magistrate issued a decision concluding that the consent of Biological Father was unnecessary for Stepfather to adopt Child.

{¶ 10} The magistrate's decision was sent to Biological Father at 4840 Forest Parkway, Decatur, Illinois. On November 10, 2016, Biological Father entered a limited appearance objecting to the court's exercise of subject matter and personal jurisdiction over him. He requested that "the following service address [be used] from this point forward: Dustin Eugene Johan Meier[,] 752 North Main Street, # 421[,] Mansfield, Texas 76063.[ ]" (Emphasis deleted.) Biological Father further requested leave to object stating that he became aware of the present action "via a telephone call" on November 4, 2016 informing him that he had received mail from a Summit County, Ohio court at the Decatur, Illinois address. The court granted Biological Father an extension of time to properly request a copy of its records, to have a transcript of the hearing prepared, and to file supplemental objections to the magistrate's decision.

{¶ 11} In his supplemental objections, Biological Father contended, inter alia, that California had exclusive subject matter jurisdiction, he had not been properly served the petition for adoption, and that his failure to provide more than de minimis contact with Child for a period of at least one year was justified. The court overruled Biological Father's objections. Biological Father appeals, raising four assignments of error.

{¶ 12} Prior to addressing Biological Father's assignments of error, this Court pauses to note that a probate court's determination that a parent's consent to an adoption is not required is a final appealable order. See In re adoption of Greer , 70 Ohio St.3d 293, 298, 638 N.E.2d 999 (1994). Therefore, this Court has jurisdiction to decide this appeal at this time.

II.

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT ERRED BY EXERCISING CONCURRENT JURISDICTION WITH THE SUPERIOR COURT OF CALIFORNIA, SAN DIEGO, CALIFORNIA, EAST COUNTY FAMILY LAW DIVISION WHILE THE PETITION TO ESTABLISH PARENTAGE REMAINS PENDING THERE, OFFENDING THE PURPOSE OF THE UNIFORM PARENTAGE ACT.

{¶ 13} In his first assignment of error, Biological Father argues that Ohio courts lack jurisdiction to take any action regarding Child while his action remained pending in California.

{¶ 14} Initially, this Court notes that Biological Father attempts to use this assignment of error to challenge "all Ohio actions." This Court's jurisdiction is limited to the order appealed from in this case; it does not extend to reviewing orders from other cases. See State v. Mason , 9th Dist. Summit No. 27715, 2016-Ohio-7081, 2016 WL 5723972, ¶ 11-15. The current appeal is from the Summit County Court of Common Pleas, Probate Division. No other Ohio actions are before this Court in this appeal.

{¶ 15} Similarly, Stepfather argues that, because this Court concluded that Ohio had jurisdiction in Ball , 2012-Ohio-5864, 2012 WL 6206659, Biological Father is barred by the law-of-the-case doctrine from challenging jurisdiction in the current case. The law-of-the-case doctrine, however, does not require a court to follow a superior court's decision in a prior appeal involving one of the parties in the context of a different case. Reid v. Cleveland Police Dept. , 151 Ohio St.3d 243, 2017-Ohio-7527, 87 N.E.3d 1231, ¶ 1. In Ball , Biological Father appealed from a judgment of the Summit County Common Pleas Court, Domestic Relations Division, and this Court addressed "the subject matter jurisdiction of Ohio courts to resolve custody disputes pertaining to [Child]." 2012-Ohio-5864, 2012 WL 6206659, at ¶ 1, 6. Although Biological Father was a party to both actions, the law of the case in the domestic relations action does not bar his current arguments concerning the jurisdiction of the probate court.

{¶ 16} Turning to the merits of the jurisdictional issue, "[t]here is a distinction between a court that lacks subject-matter jurisdiction over a case and a court that improperly exercises that subject-matter jurisdiction once conferred upon it." Pratts v. Hurley , 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992, ¶ 10. Accord Bank of Am., N.A. v. Kuchta , 141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 1040, ¶ 18-19. Subject-matter jurisdiction concerns the power of a court to "adjudicate a particular class of cases." Kuchta at ¶ 19. When a court has subject-matter jurisdiction over a particular class of cases, but lacks the authority to exercise it in a particular case, its action is voidable. Id. , citing Pratts at ¶ 12.

{¶ 17} "It is well established that the original and exclusive jurisdiction over adoption proceedings is vested in the probate court." In re Adoption of Pushcar , 110 Ohio St.3d 332, 2006-Ohio-4572, 853 N.E.2d 647, ¶ 9. In the present matter, Stepfather brought a petition to adopt Child, which is a matter within the probate court's "original and exclusive jurisdiction." See id. Hence, Biological Father's challenge concerns not subject-matter jurisdiction itself, but the exercise of that jurisdiction in this particular case.

{¶ 18} In Pushcar , the Ohio Supreme Court held that, despite having subject-matter jurisdiction, a probate court must refrain from proceeding on an adoption petition when the parentage of that child is pending in another court. Id. at ¶ 9-10. But, the Court also reaffirmed that " '[a] [p]robate [c]ourt has jurisdiction to hear and determine an adoption proceeding relating to a minor child notwithstanding the fact that the custody of such child is at the time within the continuing jurisdiction of [another] court.' " Id. at ¶ 9, quoting In re Adoption of Biddle , 168 Ohio St. 209, 152 N.E.2d 105 (1958), paragraph two of the syllabus.

{¶ 19} Consequently, the central issue is whether the pending action in California involved paternity or custody. Biological Father phrases much of his argument in terms of the "parentage action" that he asserts "remains pending" in California.

Yet, in the fact section of his brief, he characterized the California, Wayne County, and Summit County actions as "simultaneous custody proceedings." Regardless of the phrasing chosen by Biological Father, this Court must examine the substance of the matters decided and the matters alleged to be pending in California.

{¶ 20} At the magistrate's hearing, a number of certified entries from the California court were entered into evidence. These included a May 8, 2006 judgment entry wherein it states: "THE COURT FINDS Larami McLean [and] Dustin Meier are the parents of [Child]." (Emphasis sic.) Biological Father attached a copy of this same entry to his supplemental objections. Biological Father also included a number of other items from the California court. He did not provide any evidence that the 2006 paternity finding was ever vacated, or even challenged.

{¶ 21} The only entry that Biological Father claims was vacated by the California court was a July 21, 2008 entry regarding Mother's relocation to Ohio. Biological Father challenges whether Child's "primary residence" was to be with Mother or Biological Father when Mother moved to Ohio. The items that Biological Father contends are pending pertain to custody, visitation, and contempt. Those items do not relate to paternity and, therefore, do not affect the probate court's exercise of its jurisdiction. The facts in the present case are unlike those in Pushcar wherein a juvenile court was awaiting genetic testing to establish paternity when the adoption petition was filed in probate court. 110 Ohio St.3d 332, 2006-Ohio-4572, 853 N.E.2d 647, at ¶ 4, 14.

{¶ 22} In his reply brief, Biological Father contends that the May 8, 2006 entry could not be relied upon because it states that it was " 'pending further order of court on a temporary basis' " and that " '[t]his visitation and custody schedule shall be incorporated into any judgment of paternity.' " Biological Father cannot use his reply brief to raise new issues. See Schmitt v. Ward , 9th Dist. Summit No. 28324, 2017-Ohio-4171, 2017 WL 2467147, ¶ 8. Moreover, Biological Father takes these quotes out of context and, in so doing, distorts their meaning. The May 8, 2006 entry consists of two pages and a four page attachment. The court's finding of paternity appears on the first page of the entry. The quotes referenced by Biological Father are contained in the attachment, which concerns "CHILD CUSTODY AND VISITATION." (Emphasis sic.) The attachment begins by stating, "The parties made the following stipulations in open court on 4/25/2006." The court incorporated the April 25, 2006 stipulations regarding custody and visitation into its May 8, 2006 judgment of paternity by referencing and attaching it thereto. As to what remained "pending further order," the complete quote states: "The parties agree the court order for custody and visitation of [Child] shall be as follows, pending further order of the court on a temporary basis." Thus, what remained "pending" was not paternity, but custody and visitation.

{¶ 23} Biological Father's first assignment of error is overruled.

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT ERRED BY ACCEPTING THE STATEMENTS OF [ ] COUNSEL FOR [STEPFATHER] AS "TESTIMONY" FOR THE PURPOSE OF EVIDENCE OVER THE OBJECTIONS OF [BIOLOGICAL FATHER].

{¶ 24} In his second assignment of error, Biological Father contends that "the trial court relied solely on [Stepfather's] counsel's unsworn testimony re[garding]

establishment of paternity to determine its continued exercise of subject matter jurisdiction." This assertion is not supported by the record, which also contains certified copies of the California court's May 8, 2006 entry establishing paternity. Biological Father's second assignment of error is overruled.

ASSIGNMENT OF ERROR NO. 3

THE TRIAL COURT ERRED BY DENYING [BIOLOGICAL FATHER] DUE PROCESS OF LAW, WHEREIN THE TRIAL COURT FAILED TO ENSURE THAT [STEPFATHER] SERVED ACTUAL[ ] NOTICE ON [BIOLOGICAL FATHER] PRIOR TO EXERCISING JURISDICTION.

{¶ 25} In his third assignment of error, Biological Father argues that he was not served in accordance with the Ohio Rules of Civil Procedure, and more particularly, Civ.R. 4 to 4.6 and Civ.R. 73.

{¶ 26} Preliminarily, this Court notes that Civ.R. 4 to 4.6 apply to some, but not all, proceedings in the probate division of a common pleas court. " Civ.R. 4 through 4.6 shall apply in any proceeding in the probate division of the court of common pleas requiring service of summons." Civ.R. 73(C). But, "[i]n any proceeding where any type of notice other than summons is required[,]" notice shall be given in accordance with Civ.R. 73(E).

{¶ 27} When a petition for adoption is filed, the probate court is required to provide "notice of the filing of the petition and of the time and place of [the] hearing * * * to * * * [a] person whose consent is not required as provided in division (A) * * * of section 3107.07 of the Revised Code and has not consented." (Emphasis added.) R.C. 3107.11(A)(2). Thus, R.C. 3107.11"requires service of notice rather than issuance of summons." Askew v. Taylor , 5th Dist. Stark No. 2004CA00184, 2004-Ohio-5504, 2004 WL 2315190, ¶ 18, citing In re Burdette , 83 Ohio App. 368, 374, 83 N.E.2d 813 (9th Dist.1948). Consequently, Biological Father's reliance on Civ.R. 4 to 4.6 governing service of summons is misplaced.

{¶ 28} Civ.R. 73(E) lists seven methods by which notice of a probate proceeding may be served. These include personal delivery, leaving a copy at the person's residence, certified or express mail return receipt requested, commercial carrier service, ordinary mail, publication, or "other method as the court may direct." Civ.R. 73(E)(1)-(7). The rule permits service of notice by any of the listed methods. See Civ.R. 73(E).

{¶ 29} According to Biological Father, "the only means of attempted service in this present action was service by publication." This assertion ignores the "Notice of Consent Hearing" and "Notice of Hearing on Petition for Adoption" that the court sent to Biological Father at 4840 Forest Parkway, Decatur, Illinois 62521. Biological Father does not argue that these notices were insufficient for service under Civ.R. 73(E). "An appellant bears the burden of formulating an argument on appeal and supporting that argument with citations to the record and legal authority."

State v. Watson , 9th Dist. Summit No. 24232, 2009-Ohio-330, 2009 WL 187885, ¶ 5, citing App.R. 16(A)(7). "This Court will not create an argument on the behalf of an appellant." Id. , citing Cardone v. Cardone , 9th Dist. Summit Nos. 18349, 18673, 1998 WL 224934, at *8-9 (May 6, 1998).

{¶ 30} Because the record reflects that service by publication was not the only method used to provide the required notice, and Biological Father fails to argue that the other method used by the court was insufficient, his third assignment of error is overruled.

ASSIGNMENT OF ERROR NO. 4

THE TRIAL COURT ERRED IN FINDING CONSENT OF [BIOLOGICAL FATHER] IS NOT REQUIRED WHEN [STEPFATHER] FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT: (1) [BIOLOGICAL FATHER] WAS NOT JUSTIFIED IN FAILING TO COMMUNICATE WITH [ ] CHILD; AND (2) THAT SUCH FAILURE OCCURRED BOTH: (A) 12 MONTHS PRIOR TO SEPTEMBER 12, 2016, AND (B) AFTER PATERNITY WAS ESTABLISHED.

{¶ 31} In his fourth assignment of error, Biological Father argues that the trial court erred in finding that his consent was not required for the adoption of Child.

{¶ 32} Under R.C. 3107.07(A), "[c]onsent to adoption is not required of * * * [a] parent of a minor, when * * * the court * * * finds by clear and convincing evidence that the parent has failed without justifiable cause to provide more than de minimis contact with the minor * * * for a period of at least one year immediately preceding * * * the filing of the adoption petition."

{¶ 33} In the present matter, the adoption petition was filed on September 12, 2016, and Biological Father concedes that he "has not seen or talked to [C]hild since about June 2013." Nonetheless, he argues that (1) a consent finding could not be made because his parentage action remained pending in California and (2) Stepfather failed to prove that Biological Father acted without justifiable cause.

{¶ 34} In support of his argument that a consent finding could not be made until further action was taken by the California court, Biological Father references his first assignment of error and Pushcar , 110 Ohio St.3d 332, 2006-Ohio-4572, 853 N.E.2d 647. In Pushcar , the Ohio Supreme Court found that "[t]he requisite one-year period set forth in [ R.C. 3107.07(A) ] could not begin to run until a judicial ascertainment of paternity." Id. at ¶ 14. As stated under the first assignment of error, Biological Father's paternity of Child was established by the California court in 2006. Thus, the judicial determination of paternity was well before the one-year look back period from the filing of the adoption petition.

{¶ 35} Biological Father further contends that Stepfather failed "to prove by clear and convincing evidence that [Biological Father] lacked justification for his absence from [C]hild's life." This Court has previously addressed the parties' respective burdens under R.C. 3107.07(A). "The burden of proving, clearly and convincingly, that a parent has failed to communicate with a child for the requisite one-year period and that such failure was without justifiable cause rests with the petitioner." In re Kr. E. , 9th Dist. Lorain No. 06CA008891, 2006-Ohio-4815, 2006 WL 2661053, ¶ 11, citing In re Adoption of Holcomb , 18 Ohio St.3d 361, 481 N.E.2d 613 (1985), paragraph four of the syllabus. But, "[o]nce the petitioner has established that the parent has failed to communicate with the child for the one-year period, the burden of going forward to show some facially justifiable cause for the failure shifts to the parent." In re Kr. E. at ¶ 11, citing In re Adoption of Bovett , 33 Ohio St.3d 102, 515 N.E.2d 919 (1987), paragraph two of the syllabus. "[T]he burden of proof remains with the petitioner." Id.

{¶ 36} As explained by the Ohio Supreme Court, "a natural parent may not simply remain mute" and force an adopting parent to demonstrate why the natural parent's failure was unjustified. In re Adoption of Bovett at 104, 515 N.E.2d 919. "[T ]he adopting parent has no legal duty to prove a negative. " (Emphasis sic.) Id., quoting In re Adoption of Masa , 23 Ohio St.3d 163, 167, 492 N.E.2d 140 (1986). Thus, once a petitioner meets his initial burden, "the burden of going forward with the evidence is on the natural parent" although "[t]he burden of proof [ ] remains with the petitioner." (Emphasis sic.) In re Adoption of Bovett at 104, 515 N.E.2d 919.

{¶ 37} In the present matter, Mother testified that the domestic relations court granted Biological Father supervised visitation with Child in June 2013. She further testified that Biological Father had no contact with Child since that time. She indicated that she had been in contact with the visitation center to provide necessary paperwork, including her address and phone number, but she had not been contacted by the visitation center to schedule a visit. She continued that, since June of 2013, Biological Father had not contacted her by phone or email, nor had he attempted to contact Child or sent him any cards or gifts. Although she testified that she had moved once, she continued that her phone number remained the same. Thus, Stepfather met his initial burden to prove with clear and convincing evidence that Biological Father had failed to have more than de minimis contact with Child during the relevant one-year period.

{¶ 38} The "burden of going forward with the evidence " demonstrating justifiable cause for the lack of contact, thus, shifted to Biological Father. (Emphasis sic.) See In re Adoption of Bovett at 104, 515 N.E.2d 919 ; see also In re Kr. E. at ¶ 11. Biological Father did not appear at the magistrate's hearing to present any evidence. Nonetheless, the trial court permitted him to introduce evidence along with his supplemental objections to the magistrate's decision. Biological Father's supplemental objections contain a number of bald assertions alleging generally that Mother interfered with his ability to contact Child. He did not, however, provide any evidence to support any alleged interference during the relevant one-year period. Because Biological Father did not provide any evidence regarding his alleged justification, Stepfather's only obligation was to prove the lack of contact. See In re Adoption of Bovett at 104, 515 N.E.2d 919, quoting In re Adoption of Masa at 167, 492 N.E.2d 140.

{¶ 39} Biological Father's fourth assignment of error is overruled.

III.

{¶ 40} Biological Father's assignments of error are overruled. The judgment of the Summit County Common Pleas Court, Probate Division, is affirmed.

Judgment affirmed.

HENSAL, P.J.

TEODOSIO, J.

CONCUR.

      In his brief to this Court, Biological Father states that he "relocated to the Dallas/Fort Worth, Texas area" in November of 2014 and "secured a post office box in Mansfield, Texas."

      Although Biological Father claims in his stated assignment of error that he was entitled to "actual notice," within the body of his argument he clarifies that the issue is "actual attempts that are reasonably calculated to provide actual notice."

      The court used this same address when sending the magistrate's decision, which Biological Father states he "clearly received." Additionally, in his reply brief, Biological Father states that he "maintains a residence in Decatur, Illinois" although his current "domicile " is Texas. (Emphasis sic.).

      On appeal, the parties do not address the propriety of the trial court's action in this regard, and this Court expresses no opinion regarding it.


author: MARY J. BOYLE, P.J.:

text:
    STATE of Ohio, Plaintiff-Appellee v. Cynthia D. MAY, Defendant-Appellant
    No. 106003
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: April 19, 2018
    Russell S. Bensing, 600 IMG Building, 1360 East Ninth Street, Cleveland, Ohio 44114, ATTORNEY FOR APPELLANT
    Michael C. O'Malley, Cuyahoga County Prosecutor, BY: Brandon Piteo, Assistant County Prosecutor, Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE
    BEFORE: Boyle, P.J., Blackmon, J., and Laster Mays, J.
    JOURNAL ENTRY AND OPINION
   MARY J. BOYLE, P.J.:

{¶ 1} Defendant-appellant, Cynthia May, appeals her convictions and raises one assignment of error for our review:

The Trial Court erred in entering convictions for Aggravated Vehicular Assault under R.C. 2903.08(A)(1)(a) and R.C. 4511.19(A)(1)(a), because the evidence was insufficient to support the convictions.

{¶ 2} Finding no merit to her assignment of error, we affirm.

I. Procedural History and Factual Background

{¶ 3} On February 14, 2017, a Cuyahoga County Grand Jury indicted May for seven counts of felonious assault in violation of R.C. 2903.11(A)(1) and (2), two counts of aggravated vehicular assault in violation of R.C. 2903.08(A)(2)(b), and one count of driving while under the influence in violation of R.C. 4511.19(A)(1)(a).

{¶ 4} May waived her right to a jury trial, and the following facts were presented to the bench.

{¶ 5} On June 30, 2016, Carla Ruffin, Phyllis Patterson-Brown ("Brown"), and Nicole Patterson went to Your Place and Mine, a bar on East 55th Street in Cleveland. Patterson's husband worked there as a security guard. Ruffin drove the women in her car, a 2002 white Chevy Malibu, and they arrived at the bar around 9:00 p.m.

{¶ 6} After the women ordered drinks, Patterson began talking to May, who was also drinking at the bar that night. While witnesses for the state and May gave different answers when asked how many and what type of drinks May had that night, May testified that she had two drinks. According to some of the state's witnesses, May was very emotional while at the bar with Brown and Patterson. Brown testified that May had a number of drinks, including Long Island iced teas and wine and was intoxicated.

{¶ 7} At some point, Patterson and May began arguing inside the bar. The argument escalated as others became involved. Eventually, a number of patrons, including Patterson, Brown, May, and Ruffin, walked outside toward May's vehicle and continued to argue.

{¶ 8} According to the state's witnesses, May began threatening Ruffin and swung her fist at her. Ruffin dodged the swing and responded by punching May with her keys and knocking her to the ground. Contrary to the state's witnesses, May testified that Ruffin attacked her first and that a number of people assaulted her after she was knocked to the ground. During the fight, May bit Ruffin's finger, causing it to bleed. May was also bleeding from cuts on her head and elbow as a result of the fight. The physical altercation was eventually broken up, and the women went their separate ways. The other patrons who were watching the fight also dispersed, some heading back toward the bar.

{¶ 9} Ruffin, Patterson, and Brown returned to Ruffin's vehicle. Ruffin, who wanted to go to the hospital to get her finger looked at, sat in the backseat, while Patterson sat in the front passenger seat and Brown sat in the driver's seat. May returned to her own vehicle, a white Mitsubishi Galant, and started the ignition. Video surveillance from Your Place and Mine shows that a few moments later, May's car sped toward and collided with Ruffin's car as well as other vehicles nearby. May's car flipped onto its roof after colliding with the cars.

{¶ 10} Witnesses testified that, despite her car being upside down, May immediately exited her vehicle and began walking away from the scene. Two individuals who witnessed the accident, however, ran after her to check on her well-being and brought her back to the bar's parking lot.

{¶ 11} May testified that she lost consciousness after she turned on the ignition to her vehicle and began to pull out of her parking spot. She testified that the next thing she could remember was dangling from her driver's seat, strapped in by her seat belt.

{¶ 12} As a result of the crash, Ruffin, Patterson, and Brown suffered minor injuries. The collision left another man who was in the parking lot, Barry Tingle, pinned between two cars. Tingle suffered a fractured tibia and a "gash" on one of his legs.

{¶ 13} After receiving a 911 call, EMS personnel arrived and placed May inside an ambulance and began treating some of the wounds she suffered as a result of the fight and crash. Police officers, who showed up after the EMS, interviewed witnesses and victims on the scene, including May, and obtained video surveillance showing the crash. Officers testified that during their interview with May, she refused to take a breathalyzer test, had glassy eyes, and smelled of alcohol. The officers testified that they did not perform field sobriety tests because of May's injuries. EMS subsequently transported May to MetroHealth hospital for further treatment. At the hospital, officers interviewed May further and requested that she submit to a blood draw, which she refused.

{¶ 14} The next day, May spoke to Detective Garner, who videotaped the interview and obtained her version of the events. May told the detective that she was unconscious during the time that her vehicle came into contact with Ruffin's vehicle.

{¶ 15} At trial, May moved the court for an acquittal pursuant to Crim.R. 29 after the state rested its case. The court granted May's motion with respect to one of the counts for felonious assault, but denied the motion with respect to the remaining counts. After May took the stand in her defense, she again moved the court for an acquittal under Crim.R. 29, which the court denied again.

{¶ 16} The court found May guilty of six counts of felonious assault, two counts of aggravated vehicular assault, and one count of driving while under the influence. The court merged a number of the counts. As a result, the court sentenced May to six months for driving under the influence, one year for aggravated vehicular assault, and two years each for the three felonious assault counts. The court ran all of those sentences concurrent to one another, resulting in a two-year sentence. Further, as related to her conviction for aggravated vehicular assault, the court suspended May's driver's license for five years and mandated that she receive an alcohol/drug assessment and treatment and pay a fine for her conviction for driving under the influence. Finally, the court imposed mandatory postrelease control for three years after May completed her prison sentence.

{¶ 17} It is from this judgment that May appeals.

II. Law and Analysis

{¶ 18} In her sole assignment of error, May challenges the sufficiency of evidence underlying her convictions for aggravated vehicular assault under R.C. 2903.08(A)(1)(a) and operating a vehicle while under the influence of alcohol under R.C. 4511.19(A)(1)(a).

{¶ 19} A sufficiency challenge essentially argues that the evidence presented was inadequate to support the verdict as a matter of law. State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). "The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Emphasis sic.) State v. Getsy , 84 Ohio St.3d 180, 193, 702 N.E.2d 866 (1998), quoting Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). "[A] conviction based on legally insufficient evidence constitutes a denial of due process." Thompkins at 386, 678 N.E.2d 541, citing Tibbs v. Florida , 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).

{¶ 20} The court convicted May of two counts of aggravated vehicular assault in violation of R.C. 2903.08(A)(1)(a), which supports a conviction for aggravated vehicular assault if the person causes serious physical injury as a proximate result of operating a motor vehicle while impaired under R.C. 4511.19. The court also convicted May of operating a vehicle while under the influence of alcohol in violation of R.C. 4511.19(A)(1)(a).

{¶ 21} In her brief, May argues that there was insufficient evidence to convict her under R.C. 2903.08(A)(1)(a) and 4511.19(A)(1)(a) because the only evidence supporting a finding that she was impaired was testimony that she had glassy eyes and smelled of alcohol after the accident. She also points to statements made by some of the state's witnesses who believed that May was not intoxicated, but only upset.

{¶ 22} Foremost, "an evaluation of the witness's credibility * * * is not proper on review for evidentiary sufficiency." State v. Yarbrough , 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 79. Therefore, while May is correct that some of the state's witnesses testified that they did not believe that she was impaired, that testimony goes to the credibility of the witnesses and weight, not sufficiency, of the evidence.

{¶ 23} Further, a trier of fact may rely on direct and circumstantial evidence in evaluating a defendant's guilt because both types of evidence carry the same weight and possess the same probative value. State v. Lash , 8th Dist. Cuyahoga No. 104310, 2017-Ohio-4065, 2017 WL 2378118, ¶ 31. In fact, "[a] conviction can be sustained based on circumstantial evidence alone." State v. Franklin , 62 Ohio St.3d 118, 124, 580 N.E.2d 1 (1991).

{¶ 24} Under R.C. 4511.19(A)(1), "No person shall operate any vehicle * * * if, at the time of the operation, * * * [t]he person is under the influence of alcohol[.]" "The term 'under the influence' means that 'the defendant consumed some [alcohol], * * * in such a quantity, whether small or great, that it adversely affected and appreciably impaired the defendant's actions, reactions, or mental processes under the circumstances then existing[.]' " State v. Clark , 8th Dist. Cuyahoga No. 88731, 2007-Ohio-3777, 2007 WL 2135118, ¶ 12, quoting 4 Ohio Jury Instructions 6, Section 545.25. "[T]he state can rely on physiological factors (e.g., odor of alcohol, glossy or bloodshot eyes, slurred speech, confused appearance) to demonstrate that a person's physical and mental ability to drive was impaired." State v. Kilbane , 8th Dist. Cuyahoga No. 99485, 2014-Ohio-1228, 2014 WL 1327963, ¶ 23, citing Clark . The state may also submit evidence that a person refused to submit to a chemical test to determine alcohol consumption, and use lay-witness testimony to establish that an individual is intoxicated. Maumee v. Anistik , 69 Ohio St.3d 339, 344, 632 N.E.2d 497 (1994) ; State v. Zetner, 9th Dist. Wayne No. 02CA0040, 2003-Ohio-2352, 2003 WL 21040664, ¶ 19, citing State v. DeLong , 5th Dist. Fairfield No. 02CA35, 2002-Ohio-5289, 2002 WL 31185809.

{¶ 25} Viewing the evidence in a light most favorable to the prosecution, we find the state presented sufficient evidence that a reasonable trier of fact could conclude that May was driving under the influence under R.C. 4511.19(A)(1) and, thus, committed aggravated vehicular assault under R.C. 2903.08(A)(1)(a). Here, May admitted that she consumed alcohol at Your Place and Mine that night. A number of witnesses, including May herself, testified that she had more than one alcoholic beverage while inside the bar. Brown, who testified that she had a number of drinks with May, stated that when she and May walked outside the bar, May was "staggering."

{¶ 26} Further, Officers Calhoun and Porter, who were on the scene immediately following the accident, testified that May had glassy eyes and detected an odor of alcohol coming from May's person. The officers also testified that May refused to submit to a breathalyzer test and a blood draw. See Westerville v. Cunningham , 15 Ohio St.2d 121, 239 N.E.2d 40 (1968), paragraph one of the syllabus ("The refusal of one accused of intoxication to take a reasonably reliable chemical test for intoxication may have probative value on the question as to whether he was intoxicated at the time of such refusal.").

{¶ 27} Finally, the state admitted a number of exhibits, including video surveillance from the bar's parking lot. The footage shows May's car traveling at a high rate of speed, swerving, and directly hitting the vehicle containing the women with whom May was arguing with moments earlier. A trier of fact could certainly relate that dangerous and erratic driving to alcohol impairment.

{¶ 28} While there was no direct evidence of the level of alcohol content in May's blood, we find that the state presented sufficient direct and circumstantial evidence to allow a trier of fact to determine that May operated a vehicle while impaired, thereby supporting her convictions for aggravated vehicular assault under R.C. 2903.08(A)(1)(a) and operating a motor vehicle while under the influence of alcohol under R.C. 4511.19(A)(1)(a).

{¶ 29} May also argues that the fact that the trier of fact convicted her of multiple counts of felonious assault establishes that she was not impaired because that offense requires an intentional act. Specifically, in her brief, May states, "Any evidence of impaired driving runs contrary to the State's theory" "that the collision was not an accident, but that Ms. May intentionally drove her car into" the victims' vehicle. In other words, she argues that she could not commit an intentional act if she was impaired and, thus, cannot be convicted of both felonious assault under R.C. 2903.11(A)(1) and (2) and aggravated vehicular assault under R.C. 2903.08(A)(1)(a).

{¶ 30} When determining whether a defendant was under the influence for purposes of R.C. 4511.19, the defendant's criminal intent is irrelevant. State v. Andera , 8th Dist. Cuyahoga No. 92306, 2010-Ohio-3304, 2010 WL 2783688, ¶ 19. On the other hand, under R.C. 2903.11(A), the mental state for felonious assault is "knowingly." "A person acts knowingly, regardless of purpose, when the person is aware that the person's conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when the person is aware that such circumstances probably exist." R.C. 2901.22(B).

{¶ 31} Here, the facts and circumstances presented at trial showed that May and the victims were arguing in the parking lot and engaged in a physical altercation before May got into her vehicle. A few moments later, May's vehicle ran into the victims' vehicle. That evidence tends to show that May was impaired, but still knew what she was doing and whose car she was driving toward.

{¶ 32} In conclusion, we reject May's argument that it is legally impossible to be impaired and to commit an intentional act. Impaired individuals commit intentional acts all of the time. Accordingly, we overrule May's sole assignment of error.

{¶ 33} Judgment affirmed.

PATRICIA ANN BLACKMON, J., and ANITA LASTER MAYS, J., CONCUR