State v. Fulton
| Decision Date | 24 June 2019 |
| Docket Number | CASE NO. 2018-P-0048 |
| Citation | 2019 Ohio 2509 |
| Parties | STATE OF OHIO, Plaintiff-Appellee, v. ZACHARY A. FULTON, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2018 CR 00343.
Judgment: Affirmed in part, reversed in part, and remanded.
Victor V. Vigluicci, Portage County Prosecutor, and Theresa M. Scahill, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, Ohio 44266 (For Plaintiff-Appellee).
Shubhra N. Agarwal, 3732 Fischreek Road, #288, Stow, Ohio 44224 (For Defendant-Appellant).
{¶1} Appellant, Zachary Fulton, appeals his domestic violence conviction following a jury trial. We affirm in part, reverse in part, and remand for resentencing.
{¶2} Fulton was charged with possession of marijuana, obstructing official business, and domestic violence. Following the close of evidence, the state dismissed the possession charge, and the court granted Fulton's motion for acquittal on obstructing official business. Fulton was convicted of the remaining count, domestic violence in violation of R.C. 2919.25, a fourth-degree felony.
{¶3} He raises five assigned errors:
{¶4} "[1.] The trial court committed reversible error when it overruled Mr. Fulton's Crim.R. 29(A) motion for acquittal because the evidence was insufficient to support a conviction.
{¶5} "[2.] Mr. Fulton's conviction for domestic violence was against the manifest weight of the evidence.
{¶6} "[3.] The trial court committed reversible and plain error when it sentenced Mr. Fulton without properly giving him the notifications concerning post-release control.
{¶7} "[4.] The trial court committed reversible and plain error by ordering the defendant to pay an 'assessment and recoupment fee.'
{¶8}
{¶9} We collectively address Fulton's first and second assigned errors challenging the sufficiency of the evidence and claiming that his conviction is against the manifest weight of the evidence.
{¶10} Upon reviewing the denial of a motion for acquittal, we use the same standard of review used for sufficiency of the evidence claims. State v. Wright, 11th Dist. Portage No. 2000-P-0128, 2002-Ohio-1432, *2; State v. Cassel, 2d Dist. Montgomery No. 26708, 2016-Ohio-3479, 66 N.E.3d 318, ¶ 16. In reviewing a challenge to the sufficiency of the evidence, an appellate court views the evidence in a light most favorable to theprosecution. State v. Smith, 80 Ohio St.3d 89, 113, 684 N.E.2d 668 (1997). Sufficiency is State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).
{¶11} State v. Carter, 7th Dist. Mahoning No. 15 MA 0225, 2017-Ohio-7501, 96 N.E.3d 1046, ¶95, appeal not allowed, 151 Ohio St.3d 1515, 2018-Ohio-365, 90 N.E.3d 952.
{¶12} "Although a court of appeals may determine that a judgment of a trial court is sustained by sufficient evidence, that court may nevertheless conclude that the judgment is against the weight of the evidence. * * * Weight of the evidence concerns (Emphasis added.) [Black's Law Dictionary (6 Ed.1990)], at 1594. {¶13} * * * See, also, State v. Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 219, 485 N.E.2d 717, 720-721 ( )." Thompkins, 78 Ohio St.3d 380, at 387.
{¶14} "The trier of fact is free to believe all, part, or none of the testimony of any witness, and we defer to the trier of fact on evidentiary weight and credibility issues because it is in the best position to gauge the witnesses' demeanor, gestures, and voice inflections, and to use these observations to weigh their credibility. * * *." State v. Miller, 4th Dist. Hocking No. 18CA3, 2019-Ohio-92, ¶ 28.
{¶15} A finding that a conviction is not against the manifest weight of the evidence necessarily encompasses a sufficiency finding as well. State v. Skeins, 11th Dist. Trumbull No. 2017-T-0018, 2018-Ohio-134, ¶ 10, citing State v. McGowan, 7th Dist. Jefferson No. 14JE37, 2016-Ohio-48, ¶ 4.
{¶16} Here, Fulton was convicted of domestic violence in violation of R.C. 2919.25(A), which states: "No person shall knowingly cause or attempt to cause physical harm to a family or household member."
{¶17} "Physical harm" includes "any injury, illness, or other physiological impairment, regardless of its gravity or duration." R.C. 2901.01(A)(3). And the domestic violence statute includes "[t]he natural parent of any child of whom the offender is the other natural parent" in the definition of a "family or household member." R.C. 2919.25(F)(1)(b).
{¶18} Fulton argues that the state failed to demonstrate that he caused physical harm to the mother of his two children, Allyson Prunty. He instead claims the evidence shows that the two only had a verbal altercation and she harmed herself. He also contends that her injuries were not fresh or recently inflicted.
{¶19} Prunty testified that she and Fulton have been in an on-again, off-again relationship for more than 10 years and have two children together. Prunty confirmed that Fulton does not permanently reside in her apartment but stays with her from time to time.
{¶20} Before the incident, Fulton had been staying with Prunty for a few days. When she asked him to leave, he became angry and they began arguing. The argument escalated, and Prunty recalls Fulton hitting her in the face with his fist. He hit her near her right eye more than once, but she does not recall the exact number of times he hit her. Prunty was crying and afraid. She recalls having a cut above her eye and two black eyes. Her nose and face were swollen, and her knee was hurting. She went to a neighbor's and knocked on the door for help, but there was no answer. She did not call the police.
{¶21} On cross-examination, Prunty denied these injuries were self-inflicted. She also confirmed that she had previously broken her nose several times and admitted tocutting herself in the past but had not done so in more than seven years. Prunty explained she was afraid of Fulton and feared what he will do to her for testifying against him. Fulton has a prior domestic violence conviction resulting from another time he hit her. She was reluctant to talk with the police, and she did not seek medical treatment for her injuries.
{¶22} Sean Canterbury, an individual doing construction work on the apartment below Prunty's unit heard the dispute above him. He heard yelling and stuff being thrown. He also described hearing slapping sounds and then heard a woman and child crying. Canterbury called the project manager, an ex-police officer, who called the police and reported the altercation.
{¶23} City of Kent Police Department Officer John Romanoski was dispatched to Prunty's apartment for a domestic disturbance. He had Officer Joshua Nelson go around the back of the unit in case someone fled. When Romanoski knocked on Prunty's door, a shoeless Fulton jumped out of a second-story window with Prunty's phone in hand.
{¶24} Romanoski explained that Fulton denied any physical altercation. Fulton told Romanoski that Prunty's injuries were self-inflicted, and he claimed that he jumped from the window to go jogging.
{¶25} Officer Nelson, who apprehended Fulton after he jumped from the window, also interviewed Prunty at the scene, and Nelson recalls that her "face was swollen from her nose up to her forehead, and her eyes were starting to turn black and blue." She was very timid and did not want to talk. The state introduced a photo of Prunty confirming Nelson's description of her injuries.
{¶26} Based on the foregoing, the evidence is more than sufficient to show that Fulton knowingly caused physical harm to Prunty, the mother of his two children, whenhe repeatedly punched her in the face. Moreover, the jury evidently believed Prunty's testimony over Fulton's. This is not an exceptional case in which the jury...
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