State v. Zachery

2021-Ohio-2176

STATE OF OHIO, Plaintiff-Appellee, v. ANTHONY ZACHERY, SR., Defendant-Appellant.

No. 2019-T-0082

Court of Appeals of Ohio, Eleventh District, Trumbull

June 28, 2021

Criminal Appeal from the Court of Common Pleas Trial Court No. 2019 CR 00412

Judgment Affirmed

Dennis Watkins, Trumbull County Prosecutor, and Ashleigh Musick Assistant Prosecutor, Administration Building, Fourth Floor (For Plaintiff-Appellee).

Lynn Maro, Maro & Schoenike, Co., (For Defendant-Appellant).

OPINION

MATT LYNCH, J.

{¶1} Defendant-appellant, Anthony Zachery, Sr., appeals from his convictions for Felonious Assault, Domestic Violence, and Resisting Arrest in the Trumbull County Court of Common Pleas. For the following reasons, we affirm the judgment of the lower court.

{¶2} On June 10, 2019, Zachery was indicted by the Trumbull County Grand Jury for the following: Domestic Violence, a felony of the third degree, in violation of R.C. 2919.25(A) and (D)(1) and (4); Felonious Assault, a felony of the second degree, in violation of R.C. 2903.11(A)(2) and (D)(1)(a); and Resisting Arrest, a misdemeanor of the second degree, in violation of R.C. 2921.33(A) and (D).

{¶3} A jury trial was held on September 16 and 17, 2019. The following pertinent testimony was presented:

{¶4} Christina Oller, Zachery's girlfriend for three and a half years, testified that the two lived together and had an intimate relationship. On April 30, 2019, Oller had just returned to their home after being released from the "psych ward" following an incident in which she had been raped and became suicidal. On April 30, Zachery and Oller argued about whether she was being truthful about the rape. According to Oller, he yanked her by her hair and dragged her through a few rooms, ripping her shirt and pants. He said he wanted to "show [her] what rape really looks like." He punched or slapped her in the chest, stomach, and head. In the kitchen, he put a knife up to her throat and had her pinned on the floor. When he put the knife down, she ran to the bathroom where Zachery busted the door open. He took her to the kitchen and made her answer questions about the rape, continuing to hit her, placing a chair on her, and lunging at her.

{¶5} According to Oller, following the incident, Zachery purchased alcohol, which he made her drink and had her text message people to obtain crack. During that time, she messaged a friend, Catherine Morton, stating: "Call the cops now. He beat me to death" and "He hurt me and I'm scared he's going to kill me." When the police arrived, she hid pursuant to Zachery's instruction but then peeked out and waved until the police saw her. She refused to go to the hospital but suffered bruises to her face and breast and had black eyes. After Zachery was arrested, she moved into a battered women's shelter called Someplace Safe. She testified that he had been physical with her in the past. Oller testified that she sent Zachery a message in jail saying she was not telling the police anything happened and that she wanted to know he was ok. She explained she sent this message because she still loved him.

{¶6} Catherine Morton received the aforementioned text messages from Oller on April 30 around 7:30 p.m. and called the police. She did not know the address but conveyed to them the general vicinity of the house. She subsequently received a call from Oller who said the police were at her house. Oller was whispering and said she was hiding.

{¶7} Officer Justin Fenstermaker of the Warren City Police Department was dispatched to the incident following the 911 call. He testified that, from the physical description provided of the house and its location across from a Rite Aid on Parkman Road, as well as prior calls to that location, he responded to Zachery's residence. He also knew Oller to be associated with that location. He indicated past calls had related to domestic violence as well as "disturbances." He also testified that he was familiar with Zachery, had personally arrested Zachery for domestic violence in that residence with Oller as the victim and that in his past dealing with Zachery, he had resisted arrest.

{¶8} Upon arriving at the home, Zachery told Fenstermaker his girlfriend was not there. Fenstermaker saw Oller inside the house wave and then return back to where he believed she had been hiding, which he took as a sign she was in danger. He informed Zachery he was being detained and there was a struggle between Zachery, Fenstermaker, and another officer, Joseph Wilson. Zachery did not listen to commands or put his hands behind his back. A dash cam video was played which showed discussion between the two officers and Zachery. Fenstermaker stated that he saw "her inside. The officers grabbed Zachery's arm, he struggled, and they advised he was being "detained." He continued to pull away from them for a period of time until they stated they would use a taser.

{¶9} After Zachery was handcuffed, Fenstermaker went inside and observed bruises on Oller's face and redness and bruises on her chest and neck area, as well as a cut on her neck. She was crying and breathing fast and heavy. He observed the door to the bathroom was broken. He did not recall seeing any marks on Zachery's hands and did not recover a knife from the residence. After speaking with Oller, he exited the residence and took Zachery from the front porch to a police car.

{¶10} The State presented judgment entries of prior convictions and questioned Fenstermaker about these entries. Zachery's counsel did not object to the admission of the entries except to challenge whether the State had demonstrated they pertained to his client. Fenstermaker confirmed that Zachery had a Domestic Violence conviction in 2000 and an accompanying charge for Violating a Protection Order. Fenstermaker confirmed that there was a second Domestic Violence conviction in 2001 accompanied by a charge for resisting arrest. The judgment entries also showed a companion case in which Zachery was convicted of Endangering Children. Fenstermaker confirmed entries showing Domestic Violence convictions in 2007, 2012, two in 2015, and in 2018. Fenstermaker testified that the victim in 2018, as indicated by the complaint attached to the judgment of conviction, was Oller. Fenstermaker testified that the paperwork showed Zachery's name, address and identifying information that enabled him to know it related to the present defendant.

{¶11} Officer Wilson backed up Fenstermaker on the April 30 call. While speaking with Zachery, who said his girlfriend was not there, Fenstermaker stated that he saw Oller "around the corner." They then told Zachery he was being detained, and he "fought us. He backed us into the screen door, and I believe the window might have popped out from us slamming into it." The two officers discussed using a taser, Wilson drew his taser and Zachery stopped fighting, sat down and was handcuffed. When Wilson subsequently observed Oller, he believed she had been assaulted and "it was pretty bad." He advised Oller to go to the hospital for x-rays because her face was so swollen he believed she may have a fracture. Oller said she was afraid of retaliation and did not want Zachery charged. The State inquired: "Based on your training, education, and experience, did Mr. Zachery resist his arrest on that night?" to which Wilson responded affirmatively.

{¶12} Linda Baer, a program manager at Someplace Safe which provides services to domestic violence victims and emergency shelter, testified that Oller came to stay on May 4, 2019, and had two black eyes and her breast had very bad bruising. According to Baer, Oller had been there about six times over the past two years.

{¶13} Zachery testified that on April 30, he was speaking with Oller about her stealing his mother's identity and inconsistencies in her statement about being raped. He testified that she pulled her own hair, stood up, said she was going to kill herself, and ran toward the bathroom. He chased her, she shut the door, and he charged through it. The door broke and hit her in the eye. He helped her get into bed, the chair was on the bed, and it rolled over on her. Afterward, he obtained alcohol, which she had asked for, and she began drinking. Twenty minutes later, she fell down, he tried to catch her, and his hand hit her chest. He testified she had also taken some prescription pain pills and appeared as though she was passing out. After they sat on the couch for awhile, she communicated with someone trying to get crack and then about a half an hour later, the police pulled in and she went to the back room and said "I'm not here." He testified that police had previously been called to the residence approximately four times, often when nothing had happened. He admitted he had been convicted of Domestic Violence before, a couple of times when he was a drug addict and could not control himself. He denied punching or kicking Oller or holding a knife to her throat on April 30.

{¶14} On cross-examination, the State inquired whether Zachery was a convicted felon, specifically for drug charges, to which he responded affirmatively. He denied being responsible for that offense. He was asked if he comm itted the various Domestic Violence offenses previously described. He explained that he "had to take the charge" in 2000. When asked if he disputed the 2001 conviction, he testified that he was a drug addict then. He was asked if he disputed the 2007 conviction to which he said no. As to the 2012 conviction, he stated "I had no choice but to take some of these cases." He agreed that he was the defendant in all of the domestic violence cases addressed and was convicted.

{¶15} The jury found Zachery guilty of the three charges as contained in the indictment.

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