State v. Belt

[Cite as State v. Belt, 2016-Ohio-8069.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. CT2016-0012
:
BARBARA J. BELT :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County
Court, Case No. CRB 1500657
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: November 30, 2016
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
D. MICHAEL HADDOX FREDERICK A. SEALOVER
MUSKINGUM CO. PROSECUTOR 45 N. Fourth St.
GERALD V. ANDERSON II P.O. Box 2910
27 North Fifth St., P.O. Box 189 Zanesville, OH 43702-2910
Zanesville, OH 43702-0189
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Delaney, J.
{¶1} Defendant-appellant Barbara J. Belt appeals from the January 19 and
February 1, 2016 judgment entries of the Muskingum County Court. Appellee is the state
of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} Appellant and Lawrence “Marty” Tobias are neighbors in a Zanesville trailer
court. Marty’s wife, Lisa, is the aunt of appellant’s daughter-in-law, Lindsey Richards.
Kenneth Richards is appellant’s son and Lindsey’s husband. Kenneth and Lindsey
admittedly struggle with substance abuse and homelessness. Prior to August 2015, the
pair were frequent visitors to the trailers of appellant and the Tobiases.
{¶3} On August 3, 2015, appellant and Kenneth argued inside appellant’s trailer
because Kenneth wanted her to give him a coin collection. Kenneth left and went next
door to the Tobiases’ trailer. Marty and Lisa were inside the trailer when he arrived, and
as the evening progressed, Kenneth and Lindsey came and went between the
neighboring trailers.
{¶4} According to the Tobiases, appellant came to their trailer three times after
her initial argument with Kenneth. The first time, Lisa and/or Lindsey let her in to talk to
Kenneth; the two argued and appellant left voluntarily. Appellant then came back a
second time and argued again with Kenneth. Children were allegedly present during
some of the argument. This time, Marty told appellant to leave and not come back
because she was using profanity. Marty escorted appellant out the door and locked it
behind her. Both Tobiases testified that a short time later, they heard a “snap” or a “pop”
and observed appellant force open the door and come in for a third time. Marty argued
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with appellant; she again swore at him; and he threatened to call the sheriff. Appellant
left, slamming the door so hard that knickknacks fell off a shelf. The Tobiases said the
door and the knickknacks were damaged.
{¶5} Deputy Spawn of the Muskingum County Sheriff’s Department testified on
behalf of appellee. He was called to the scene of the criminal trespass and spoke to the
Tobiases. He observed “minimal” damage to the door consistent with the door being
forced or slammed. Spawn testified the Tobiases told him appellant came to their trailer
twice; they did not tell him about damaged knickknacks; and no one told him the Tobiases
have surveillance cameras. (The surveillance cameras ultimately played no role at trial.)
{¶6} Kenneth and Lindsey Richards testified on behalf of appellant; both
admitted they were high on Xanax the day of the incident and could recall only “bits and
pieces” of the day’s events. They said appellant did not damage the door of the Tobiases’
trailer.
{¶7} Appellant testified on her own behalf and said she came to the neighbors’
trailer only once that day and left voluntarily. She denied entering uninvited and denied
damaging the door.
{¶8} Appellant was charged by criminal complaint with one count of criminal
trespass pursuant to R.C. 2911.21(A)(1), a misdemeanor of the fourth degree [Count I]
and one count of criminal damaging pursuant to R.C. 2909.06(A)(1), a misdemeanor of
the second degree [Count II]. Appellant entered pleas of not guilty and the matter
proceeded to bench trial. Appellant was found guilty as charged and sentencing was
deferred pending a restitution hearing. At the subsequent hearing, Marty Tobias testified
he had to replace the entire inner door, screen door, and door frame of the trailer at a
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cost of over $1600. Marty requested restitution in the amount of $529, which represented
his out-of-pocket expenses including an insurance deductible and the cost of some “trim.”
The trial court imposed a jail term of 7 days and suspended the balance on the conditions
that, e.g., appellant pay restitution in the amount of $529.58 and have no criminal offenses
for a period of two years.
{¶9} Appellant now appeals from the judgment entries of conviction and
sentence of the Muskingum County Court.
{¶10} Appellant raises two assignments of error:
ASSIGNMENTS OF ERROR
{¶11} “I. THE TRIAL COURT ERRED BY FINDING THE DEFENDANT-
APPELLANT GUILTY AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE
EVIDENCE.”
{¶12} “II. THE TRIAL COURT ERRED BY IMPOSING UPON THE DEFENDANT-
APPELLANT A MAXIMUM INDIRECT JAIL SENTENCE, CONTRARY TO LAW.”
ANALYSIS
I.
{¶13} In her first assignment of error, appellant argues her convictions upon one
count of criminal trespass and one count of criminal damaging are against the manifest
weight and sufficiency of the evidence. We disagree.
{¶14} The legal concepts of sufficiency of the evidence and weight of the evidence
are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380,
1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review
for a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio
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St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio
Supreme Court held, “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, would convince the average mind of the
defendant’s guilt beyond a reasonable doubt. The 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.”
{¶15} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeals functions as the “thirteenth juror,” and after “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 jury clearly
lost its way and created such a manifest miscarriage of justice that the conviction must
be overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387.
Reversing a conviction as being against the manifest weight of the evidence and ordering
a new trial should be reserved for only the “exceptional case in which the evidence weighs
heavily against the conviction.” Id.
{¶16} Appellant was found guilty of trespassing in the Tobiases’ trailer and
damaging their door. R.C. 2911.21(A)(1), criminal trespass, states, “No person, without
privilege to do so, shall * * * [k]nowingly enter or remain on the land or premises of
another.” R.C. 2909.06(A)(1), criminal damaging, states, “No person shall cause, or
create a substantial risk of physical harm to any property of another without the other
person's consent [k]nowingly, by any means.”
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{¶17} Appellant argues the evidence is insufficient to support her convictions and
the trial court lost its way in considering the evidence because the witnesses’ testimony
is inconsistent. The weight of the evidence and the credibility of the witnesses are
determined by the trier of fact. State v. Yarbrough, 95 Ohio St.3d 227, 231, 2002-Ohio-
2126, 767 N.E.2d 216, ¶ 79. The factfinder, in this case the trial court, was free to accept
or reject any and all of the evidence offered by the parties and assess the witnesses’
credibility. “While the [factfinder] may take note of the inconsistencies and resolve or
discount them accordingly * * * such inconsistencies do not render defendant's conviction
against the manifest weight or sufficiency of the evidence.” State v. McGregor, 5th Dist.
Ashland No. 15-COA-023, 2016-Ohio-3082, ¶ 10, citing State v. Craig, 10th Dist. Franklin
No. 99AP–739 (Mar. 23, 2000). Indeed, the factfinder need not believe all of a witness'
testimony, but may accept only portions of it as true. Id.{¶18} Our review of the entire record reveals no significant inconsistencies or
other conflicts in appellee’s evidence that would demonstrate a lack of credibility of
appellee’s witnesses. Although the Tobiases were inconsistent in some of the details,
appellee’s theory that appellant entered the neighbors’ trailer uninvited and damaged the
door was corroborated by the deputy’s testimony of his immediate observations of the
scene and the witnesses.
{¶19} Appellant also argues she may not have had the requisite intent of
“knowingly” in regard to Count II, criminal damaging, and she may have negligently or
recklessly damaged the trailer door. Appellant apparently concedes damaging the door,
although she claims not to have done so intentionally. Appellee’s evidence showed
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appellant may have damaged the door when she forced her way in or when she slammed
it on her way out. R.C. 2901.22(B) defines “knowingly” as follows:
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. When knowledge of the existence of a
particular fact is an element of an offense, such knowledge is
established if a person subjectively believes that there is a high
probability of its existence and fails to make inquiry or acts with a
conscious purpose to avoid learning the fact.
{¶20} The Tobiases’ testimony, corroborated by the deputy’s observation of
damage to the door, establishes sufficient evidence appellant acted knowingly.
Appellant’s witnesses, and her own testimony, further confirmed the chaos and fighting
that day. The trial court could reasonably find appellant acted knowingly. In a bench trial,
the court is presumed to know the law and properly apply it. State v. Sarver, 7th Dist. No.
05-CO-53, 2007-Ohio-601, ¶ 23. The trial court found appellant guilty from the bench
immediately after trial and specifically noted it did not find appellant credible, nor her
witnesses Kenneth and Lindsey Richards. The trial court did find the Tobiases’ testimony
credible. We have reviewed the record and find appellant’s convictions are supported by
sufficient evidence.
{¶21} We further find the trial court did not clearly lose its way and create a
manifest miscarriage of justice requiring that appellant's convictions be reversed and a
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new trial ordered. Appellant's convictions are not against the manifest weight of the
evidence.
{¶22} Appellant’s first assignment of error is overruled.
II.
{¶23} In her second assignment of error, appellant argues the trial court erred in
sentencing her to a “maximum indirect jail term.” We disagree.
{¶24} Appellant was convicted upon a misdemeanor of the fourth degree in Count
I, criminal trespass, for which the maximum jail term is 30 days. R.C. 2929.24(A)(4). She
was also convicted upon a misdemeanor of the second degree in Count II, criminal
damaging, in which the maximum jail term is 90 days. R.C. 2929.24(A)(2). The trial court
sentenced appellant to a jail term of 7 days with the balance of 113 suspended on
conditions. The sentences imposed in the instant case are thus within the statutory
ranges for a misdemeanors of the second and fourth degrees.
{¶25} Misdemeanor sentences are reviewed for an abuse of discretion. State v.
Thadur, 5th Dist. Ashland No. 15 COA 018, 2016-Ohio-417, ¶ 11, appeal not allowed,
145 Ohio St.3d 1473, 2016-Ohio-3028, 49 N.E.3d 1314. In order to find an abuse of
discretion, the reviewing court must determine that the trial court’s decision was
unreasonable, arbitrary, or unconscionable and not merely an error of law or judgment.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶26} When sentencing for a misdemeanor offense, a trial court is guided by the
“overriding purposes of misdemeanor sentencing,” which are to protect the public from
future crime by the offender and others and to punish the offender. R.C. 2929.21(A); State
v. Collins, 2nd Dist. Greene No. 2012-CA-2, 2012-Ohio-4969, ¶ 9. “To achieve those
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purposes, the sentencing court [must] consider the impact of the offense upon the victim
and the need for changing the offender's behavior, rehabilitating the offender, and making
restitution to the victim of the offense, the public, or the victim and the public.” Id. The
sentence imposed must be “reasonably calculated to achieve the two overriding purposes
of misdemeanor sentencing * * *, commensurate with and not demeaning to the
seriousness of the offender's conduct and its impact upon the victim, and consistent with
sentences imposed for similar offenses committed by similar offenders.” R.C. 2929.21(B);
Collins at ¶ 9.
{¶27} R.C. 2929.22 states in pertinent part as follows:
(A) Unless a mandatory jail term is required to be imposed * *
* a court that imposes a sentence under this chapter upon an
offender for a misdemeanor or minor misdemeanor has discretion to
determine the most effective way to achieve the purposes and
principles of sentencing set forth in section 2929.21 of the Revised
Code.
Unless a specific sanction is required to be imposed or is
precluded from being imposed by the section setting forth an offense
or the penalty for an offense or by any provision of sections 2929.23
to 2929.28 of the Revised Code, a court that imposes a sentence
upon an offender for a misdemeanor may impose on the offender
any sanction or combination of sanctions under sections 2929.24 to
2929.28 of the Revised Code. The court shall not impose a sentence
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that imposes an unnecessary burden on local government
resources.
(B)(1) In determining the appropriate sentence for a
misdemeanor, the court shall consider all of the following factors:
(a) The nature and circumstances of the offense or offenses;
(b) Whether the circumstances regarding the offender and the
offense or offenses indicate that the offender has a history of
persistent criminal activity and that the offender's character and
condition reveal a substantial risk that the offender will commit
another offense;
(c) Whether the circumstances regarding the offender and the
offense or offenses indicate that the offender's history, character,
and condition reveal a substantial risk that the offender will be a
danger to others and that the offender's conduct has been
characterized by a pattern of repetitive, compulsive, or aggressive
behavior with heedless indifference to the consequences;
(d) Whether the victim's youth, age, disability, or other factor
made the victim particularly vulnerable to the offense or made the
impact of the offense more serious;
(e) Whether the offender is likely to commit future crimes in
general, in addition to the circumstances described in divisions
(B)(1)(b) and (c) of this section;
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(f) Whether the offender has an emotional, mental, or physical
condition that is traceable to the offender's service in the armed
forces of the United States and that was a contributing factor in the
offender's commission of the offense or offenses;
(g) The offender's military service record.
(2) In determining the appropriate sentence for a
misdemeanor, in addition to complying with division (B)(1) of this
section, the court may consider any other factors that are relevant to
achieving the purposes and principles of sentencing set forth in
section 2929.21 of the Revised Code.
* * * *.
{¶28} R.C. 2929.21(A) states that “[a] court that sentences an offender for a
misdemeanor * * * shall be guided by the overriding purposes of misdemeanor
sentencing. * * *.” The overriding purposes of misdemeanor sentencing are to protect the
public from future crime by the offender and others and to punish the offender. Id. In order
to achieve those purposes, a sentencing court must consider “the impact of the offense
upon the victim and the need for changing the offender's behavior, rehabilitating the
offender, and making restitution to the victim of the offense, the public, or the victim and
the public.” Id.; State v. Coleman, 4th Dist. Scioto No. 05CA3037, 2006-Ohio-3200, 2006
WL 1719348, ¶ 21. In the instant case, the trial court suspended the balance of the jail
term on a number of conditions, including payment of restitution in the substantial amount
of $529.58. The trial court did not impose a fine to enable appellant to pay the restitution.
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{¶29} Appellant argues the sentence is too harsh because she did not commit the
worst form of the offense pursuant to R.C. 2929.22(C), which states:
Before imposing a jail term as a sentence for a
misdemeanor, a court shall consider the appropriateness of
imposing a community control sanction or a combination of
community control sanctions under sections 2929.25, 2929.26,
2929.27, and 2929.28 of the Revised Code. A court may impose the
longest jail term authorized under section 2929.24 of the Revised
Code only upon offenders who commit the worst forms of the offense
or upon offenders whose conduct and response to prior sanctions for
prior offenses demonstrate that the imposition of the longest jail term
is necessary to deter the offender from committing a future crime.
(Emphasis added.)
{¶30} At the conclusion of the trial, it is evident from the record the trial court was
unimpressed with the testimony of appellant, her son, and her daughter-in-law. At
sentencing, it is evident the trial court took issue with appellant’s lack of remorse. There
is no requirement that a trial court specifically state its reasons on the record in sentencing
on misdemeanor offenses. State v. Harpster, 5th Dist. Ashland No. 04COA061, 2005-
Ohio-1046, 2005 WL 567319, ¶ 20. Even where a record is silent, we must presume the
trial court considered the proper factors enumerated in R.C. 2929.22. State v. Kandel, 5th
Dist. Ashland No. 04COA011, 2004-Ohio-6987, 2004 WL 2955228, ¶ 25. In the instant
case, however, the trial court stated the sentence was premised upon appellant’s lack of
remorse, her failure to accept responsibility for her actions, and her record of two prior
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theft offenses. (The trial court did note the theft offenses occurred in 1984 and took
appellant’s lack of criminal record in the meantime into account.)
{¶31} We find the trial court properly considered the factors of R.C. 2929.22 and
did not abuse its discretion in imposing a jail term of 7 days and suspending the balance.
{¶32} Appellant’s second assignment of error is overruled.
CONCLUSION
{¶33} Appellant’s two assignments of error are overruled and the judgment of the
Muskingum County Court is affirmed.
By: Delaney, J. and
Wise, J., concur;
Hoffman, P.J., concurs in part
and dissents in part.
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Hoffman, P.J., concurring in part and dissenting in part.
{¶34} I concur in the majority’s analysis and disposition of Appellant’s first
assignment of error.
{¶35} I respectfully dissent from part of the majority’s decision in Appellant’s
second assignment of error. While Appellant’s lack of remorse and her failure to accept
responsibility for her actions are appropriate considerations in sentencing, they have little
bearing, if any, on the issue of whether Appellant committed the “worst form” of the
offense. While it is arguable Appellant committed the worst form of the offense of criminal
trespass in light of the clear directive given by Mr. Tobias not to return, I find the facts
surrounding the “minimal” damage to the door consistent with it being forced or slammed
and the seemingly unintentional damage to the knick knacks insufficient to constitute the
worst form of the offense of criminal damaging.1
__________________________________
HON. WILLIAM B. HOFFMAN
1
While Appellant had a prior record of committing two theft offenses in 1984, the trial court
seemed to discount them taking Appellant’s lack of a criminal record [for over 30 years]
into account. Accordingly, I conclude the trial court did not consider Appellant’s conduct
and response to prior sanctions for prior offenses demonstrated the need to impose the
maximum sentence. Nor would I.