State v. Rosenberger ( 2021 )

[Cite as State v. Rosenberger, 2021-Ohio-3695.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 29010
:
v. : Trial Court Case No. 2020-CRB-2585
:
RALPH RICHARD ROSENBERGER : (Criminal Appeal from Municipal Court)
:
Defendant-Appellant :
:
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OPINION
Rendered on the 15th day of October, 2021.
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STEPHANIE COOK, Atty. Reg. No. 0067101 and ANDREW D. SEXTON, Atty. Reg. No.
0070892, Assistant Prosecuting Attorneys, City of Dayton Prosecutor’s Office, 335 West
Third Street, Dayton, Ohio 45402
Attorneys for Plaintiff-Appellee
KAREN S. MILLER, Atty. Reg. No. 0071853, P.O. Box 341274, Beavercreek, Ohio 45434
Attorney for Defendant-Appellant
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TUCKER, P.J.
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{¶ 1} Ralph Richard Rosenberger appeals from his conviction on one count of
assault in violation of R.C. 2903.13(A), a first-degree misdemeanor.
{¶ 2} Rosenberger’s appointed appellate counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting the
absence of any non-frivolous issues for review and requesting permission to withdraw
from representation. Counsel raises one potential assignment of error challenging the
credibility of the prosecution’s witnesses but concludes that it lacks arguable merit. After
independently reviewing the record, we agree with counsel’s assessment. Accordingly,
the trial court’s judgment will be affirmed.
Facts and Procedural History
{¶ 3} Rosenberger was charged by complaint for allegedly punching Dennis Esken
in the face during an altercation. Rosenberger waived speedy-trial time, and the case
proceeded to a November 2020 bench trial. The State presented four witnesses. The first
was Zachary Boone, a Dayton police officer. Boone arrived on the scene after the
incident, which occurred outside of a triplex apartment building on August 14, 2020.
Boone spoke to Esken, who reported having been assaulted by Rosenberger. The officer
obtained witness statements and observed dried blood on one of Esken’s ears as well as
blood on his knuckles.
{¶ 4} The second prosecution witness was Stephanie Engle, who lived in one of
the three units. She testified that she had known Rosenberger for about 20 years and had
been involved with him romantically. She ended the relationship in February 2020 but
remained friendly with him until sometime that summer. Since then, she had been trying
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to get him to “leave [her] alone.” On the day at issue, Rosenberger arrived outside her
apartment on his motorcycle and hit her car window with his fist as she was leaving to go
to dinner with Esken, who she described as a friend. According to Engle, Rosenberger
followed her car until she approached a police officer in a parking lot. Rosenberger left
when she made contact with the officer.
{¶ 5} Engle testified that she and Esken returned to her residence after dinner.
They sat outside and talked with friends from the same building. While doing so, she saw
Rosenberger arrive on a motorcycle and proceed to run toward Esken, who was sitting in
a lawn chair. Engle testified that Rosenberger shoved Esken’s chair, and the two men
tumbled down a small hill. While they were on the ground, Engle saw Rosenberger punch
Esken in the ear with a closed fist. The two men regained their footing, and Rosenberger
shoved Esken to the ground a second time as Esken was attempting to back away. Engle
testified that she then stepped inside her apartment and retrieved a baseball bat; she
stated that Rosenberger left when she threatened him with it. According to Engle, Esken
did not harm or attempt to assault Rosenberger.
{¶ 6} The third witness was Danielle Pittman. She had been outside with Engle,
Esken, and another apartment resident that evening. At some point, she went inside to
go to bed. Shortly thereafter, she heard shouting. She went back outside and saw
Rosenberger “going after” Esken. Pittman watched Rosenberger “attack” Esken by taking
him to the ground and punching him in the ear. According to Pittman, the two men
separated briefly before Esken fell and Rosenberger got on top of him again.
Rosenberger then removed himself from Esken, got on his motorcycle, and “sped off.”
Pittman never saw Esken slap, punch, or attempt to harm Rosenberger.
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{¶ 7} The final prosecution witness was Esken. He testified that he was sitting with
the others when he saw Rosenberger running toward him from the parking lot.
Rosenberger “charged” at him as he attempted to rise from the chair. The two men fell to
the ground with Rosenberger on top. Esken recalled that Rosenberger punched him in
the ear with a closed fist as he was falling. Esken elbowed and kicked at Rosenberger
while on the ground to extricate himself. After the two men got to their feet, Rosenberger
shoved Esken, causing him to fall again. The incident ended with Rosenberger getting up
and leaving on his motorcycle. Esken testified that no one displayed a baseball bat.
{¶ 8} After the prosecution rested, Rosenberger testified on his own behalf and
claimed to have acted in self-defense. He testified that he had broken up with Engle
around March 2020. According to Rosenberger, they continued to see each other,
however, and maintained a sexual relationship as recently as three weeks before trial.
Rosenberger testified that on the day in question he learned that Esken was at Engle’s
apartment. Rosenberger responded by riding his motorcycle over to confront Engle. He
was upset because he believed he and Engle were “still together.” Rosenberger saw
Engle and Esken drive away to go to dinner. He returned to Engle’s apartment later that
evening to see if Esken was there. He did so because he considered himself still in a
relationship with Engle and did not like her “cheating” on him.
{¶ 9} Rosenberger explained that he parked his motorcycle and walked over to
Esken. According to Rosenberger, Esken responded by standing up and “dancing” like a
boxer while throwing jabs. Rosenberger told Esken to stop. When Esken continued
dancing and jabbing, Rosenberger shoved him to the ground. After getting up, Esken
charged toward Rosenberger, who responded by “slapping” him with an open hand.
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Rosenberger testified that Esken grabbed his legs, causing him to fall. Both men went to
the ground, and Rosenberger grabbed Esken’s hair and restrained him to prevent being
assaulted. Rosenberger eventually released Esken, uttered a profanity to Engle as he
walked past her, and left on his motorcycle. Rosenberger denied that Engle threatened
him with a baseball bat. He explained that he shoved and restrained Esken because he
feared being assaulted. Finally, he testified that he had undergone two hip replacements
and could not run.
{¶ 10} On cross-examination, Rosenberger acknowledged that he went to Engle’s
apartment because he did not trust her and was angry about her involvement with Esken.
Rosenberger stated that he was not “scared” of Esken and that he would not “back down
from nobody.” On redirect examination, Rosenberger clarified that he did believe Esken
might hit him and cause physical harm. In that sense, he claimed he was in fear. In
response to questioning from the trial court, Rosenberger acknowledged that his intent
was to “confront” Esken about Engle.
{¶ 11} Based on the evidence presented, the trial court rejected Rosenberger’s
self-defense claim and found him guilty of assault in violation of R.C. 2903.13(A), which
provides that “[n]o person shall knowingly cause or attempt to cause physical harm to
another[.]” The trial court deemed self-defense inapplicable because Rosenberger
created the situation and lacked reasonable grounds to believe he would be harmed.
Assuming, arguendo, that Rosenberger’s testimony did support a self-defense claim, the
trial court also found that the prosecution had disproven it beyond a reasonable doubt.
{¶ 12} Following a presentence investigation, the trial court imposed and
suspended a 180-day jail sentence. It then imposed a community-control sanction that
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included 18 months of basic probation supervision. This appeal followed. Upon receiving
counsel’s Anders brief, we notified Rosenberger and granted him 60 days to file a pro se
brief. Rosenberger did not file a brief, and the matter is now before us for independent
review.
Anders Standard
{¶ 13} When counsel files an Anders brief, an appellate court must determine,
“after a full examination of the proceedings,” whether the appeal is “wholly frivolous.”
Anders, 386 U.S. at 744, 87 S.Ct. 1396, 18 L.Ed.2d 493; Penson v. Ohio, 488 U.S. 75,
80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). An issue is not frivolous simply because the
State has a strong responsive argument. State v. Pullen, 2d Dist. Montgomery No. 19232,
2002-Ohio-6788, ¶ 4. A frivolous issue is one about which “on the facts and law involved,
no responsible contention can be made that offers a basis for reversal.” State v. Marbury,
2d Dist. Montgomery No. 19226, 2003-Ohio-3242, ¶ 8. If we find any issue that is not
wholly frivolous, we must reject the Anders brief and appoint new counsel to represent
Rosenberger.
Anders Review
A. Witness Credibility
{¶ 14} Appointed counsel’s Anders brief challenges the credibility of the
prosecution’s witnesses. Counsel argues that Engle was not credible because she
claimed to have brandished a baseball bat whereas Esken contradicted her and said no
one had a bat. Counsel also notes that Esken and Engle both claimed Rosenberger ran
or charged toward Esken while Rosenberger claimed he cannot run due to hip
replacements. Finally, counsel contends Engle lacked credibility because she testified
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that she did not hear Rosenberger’s motorcycle whereas Rosenberger testified that his
motorcycle is loud. Based on these contradictions, appointed counsel maintains that the
prosecution failed to meet its burden of proof.
{¶ 15} Counsel’s argument about witness credibility raises an issue regarding the
manifest weight of the evidence to sustain Rosenberger’s conviction. Counsel in effect
argues that Rosenberger’s conviction was against the weight of the evidence because
the prosecution’s witnesses were not believable.
{¶ 16} “A weight of the evidence argument challenges the believability of the
evidence and asks which of the competing inferences suggested by the evidence is more
believable or persuasive.” State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-
525, ¶ 12. “ ‘The court, reviewing the entire record, weighs the evidence and all
reasonable inferences, considers the credibility of witnesses and determines whether in
resolving conflicts in the evidence, the [factfinder] clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be reversed and a new trial
ordered. The discretionary power to grant a new trial should be exercised only in the
exceptional case in which the evidence weighs heavily against the conviction.’ ” State v.
Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v. Martin, 20
Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). “Typically, in manifest weight
review, we defer to trial court decisions on credibility issues, as those courts are in the
best position to make that determination.” State v. Curtis, 2020-Ohio-4152, 157 N.E.3d
879, ¶ 20 (2d Dist.), citing State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL
476684, *4 (Aug. 22, 1997).
{¶ 17} With the foregoing standards in mind, we see no non-frivolous issue
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regarding witness credibility and the weight of the evidence. The prosecution witnesses
testified consistently with regard to key facts underlying the assault charge. They each
testified about Rosenberger rushing Esken, knocking him to the ground, and punching
him in the ear. The fact that the prosecution witnesses’ testimony conflicted with
Rosenberger’s own testimony does not establish that the prosecution witnesses lacked
credibility. Moreover, relatively minor disputes—such as whether Engle should have
heard Rosenberger’s motorcycle or whether Rosenberger walked or ran toward Esken—
do not make the assault conviction contrary to the weight of the evidence. The lone
example Rosenberger cites where prosecution witnesses potentially contradicted each
other involved the baseball bat. Engle claimed to have brandished a bat to scare
Rosenberger away. Esken testified that no one had a bat. We note, however, that Esken
had just been tackled and punched in the ear when Engle purportedly brandished the bat.
Under these circumstances, Esken simply may not have noticed Engle with the bat. In
any event, the baseball bat’s presence or absence after the punch was not central to
Rosenberger’s conviction.
{¶ 18} In finding Rosenberger guilty, the trial court evaluated the evidence,
assessed witness credibility, and found credible the prosecution witnesses’ testimony that
Rosenberger initiated an altercation and punched Esken in the ear. We see no non-
frivolous issue with regard to the trial court’s resolution of the issue or whether the weight
of the evidence supported Rosenberger’s conviction.
B. Independent Review
{¶ 19} We independently have examined the entire record and have not found any
non-frivolous issues for review. The evidence supports Rosenberger’s conviction, and we
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see no potential sentencing errors. After reviewing a presentence investigation report, the
trial court allowed Rosenberger and his attorney to speak at sentencing. The trial court
then imposed and suspended a jail sentence within the range authorized by R.C.
2929.24(A)(1) for a first-degree misdemeanor. It also suspended Rosenberger’s fine and
waived costs due to indigence.
{¶ 20} We note too that R.C. 2929.25 and R.C. 2929.27(A)(6) authorized the trial
court impose and suspend the jail sentence and impose a community-control sanction
that included a term of basic probation supervision. Because the trial court imposed and
suspended a jail sentence before imposing community control, it had no obligation to
inform Rosenberger at sentencing of the potential consequences of a future violation.
{¶ 21} Under R.C. 2929.25(A)(3), a trial court must notify a misdemeanor
defendant of the consequences of a community-control violation if it “directly imposes a
community control sanction or combination of community control sanctions pursuant to
division (A)(1)(a) or (B) of this section.” Here the trial court did not “directly” impose
community control under R.C. 2929.25(A)(1)(a) or R.C. 2929.25(B). It imposed and
suspended a jail sentence and then imposed community control under R.C.
2929.25(A)(1)(b). As a result, the trial court was not obligated to inform Rosenberger at
sentencing of the potential consequences of violating community control. See State v.
Fankle, 2015-Ohio-1581, 31 N.E.3d 1290, ¶ 10 (2d Dist.) (observing that “[i]f a trial court
elects to sentence [a misdemeanor] offender directly to community control, it must notify
the offender of certain things”); State v. Snell, 2d Dist. Clark No. 2018-CA-99, 2019-Ohio-
2251, ¶ 9 (“There is an explicit requirement in R.C. 2929.25(A)(3) for the sentencing court
to state the duration of the community control sanctions imposed. However, that
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requirement only applies when the trial court directly imposes community control
sanctions, not where, as here, the trial court imposed a suspended jail sentence with
community control sanctions.”); State v. Drake, 2d Dist. Montgomery No. 21939, 2007-
Ohio-6586, ¶ 22 (“By its own terms, R.C. 2929.25(A)(3) does not apply to situations where
the court has chosen to impose a definite jail term under R.C. 2929.25(A)(1)(b). This is
logical, because if the court has already chosen the alternative in R.C. 2929.25(A)(1)(b)
of imposing a definite term and suspending all or part of the term, the court would not
need to impose a definite term if the offender violates the community control sanctions ̶
a definite term has already been imposed. As a sanction for the violation, the court could
simply require the offender to serve all or part of the definite term that had been
suspended.”)
{¶ 22} Finally, we see no non-frivolous issue regarding self-defense. For self-
defense to apply, there must be evidence that Rosenberger was not at fault in creating
the situation, that he had a bona fide belief he was in imminent danger of bodily harm,
and that he did not violate any duty to retreat or avoid the danger. (Citations omitted.)
State v. James, 2d Dist. Montgomery No. 28892, 2021-Ohio-1112, ¶ 20. Here,
Rosenberger effectively admitted creating the situation by going to the scene while angry
to confront Esken about his relationship with Engle. As the trier of fact, the trial court also
explicitly rejected Rosenberger’s claim about fearing bodily harm. We note too that
Rosenberger could have avoided any danger by leaving when Esken purportedly started
“dancing” and jabbing the air. But even if the evidence did support a self-defense theory,
the trial court held that the prosecution had disproven it beyond a reasonable doubt. It is
apparent that the trial court credited the prosecution witnesses’ testimony in reaching this
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conclusion, and we see no non-frivolous argument to the contrary.
Conclusion
{¶ 23} Having reviewed the entire record and found no non-frivolous issues for
appeal, we sustain appointed counsel’s motion to withdraw and affirm the trial court’s
judgment.
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WELBAUM, J. and EPLEY, J., concur.
Copies sent to:
Stephanie Cook
Andrew D. Sexton
Karen S. Miller
Ralph Richard Rosenberger
Hon. Deirdre E. Logan