State v. Kreischer

[Cite as State v. Kreischer, 2021-Ohio-1235.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
VAN WERT COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 15-20-09
v.
MARISSA E. KREISCHER,
OPINION
DEFENDANT-APPELLANT.
Appeal from Van Wert County Common Pleas Court
Trial Court No. CR-20-03-056
Judgment Affirmed
Date of Decision: April 12, 2021
APPEARANCES:
Carly M. Edelstein for Appellant
Kelly J. Rauch for Appellee
Case No. 15-20-09
ZIMMERMAN, J.
{¶1} Defendant-appellant, Marissa E. Kreischer (“Kreischer”), appeals the
August 12, 2020 judgment entry of sentence of the Van Wert County Court of
Common Pleas. For the reasons that follow, we affirm.
{¶2} This case stems from a March 9, 2020 incident during which Kreischer
attempted to assist Ashley McKee (“McKee”) in escaping from the Van Wert
Municipal Court. McKee’s escape began after she was informed by Calvin
Mengerink (“Mengerink”), a security officer at the Van Wert Municipal Court, that
she could not leave the Van Wert Municipal Court due to her failure to pass a drug
screen. When McKee saw that Sergeant Kurt Conn (“Sergeant Conn”) of the Van
Wert City Police Department had arrived to the courthouse “to transport her to the
Van Wert Correctional Facility,” she fled the courthouse. (Aug. 3, 2020 Tr., Vol. I,
at 79, 94, 151). Importantly, minutes prior to McKee’s escape, Kreischer was
observed speaking with McKee in the courthouse lobby. (Aug. 4, 2020 Tr., Vol. II,
at 214-215).
{¶3} After McKee fled the courthouse, Mengerink, Sergeant Conn, and two
other court personnel gave chase. (Id. at 95, 133, 156). Simultaneous with McKee’s
exit from the courthouse, a white Mustang (identified as Kreischer’s vehicle) “had
pulled up and it stopped” in the lane of travel. (Id. at 95, 157); (Aug. 4, 2020 Tr.,
Vol. II at 216).
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{¶4} Of the four men chasing McKee, Sergeant Conn was closest in pursuit
and arrived at Kreischer’s vehicle just after McKee. He testified that he “went to
go around the front of the car but [he] didn’t think [he] was going to be fast enough
and [he] didn’t want [McKee] to get into the car and [him] to get ran over so [he]
stopped right there at the passenger front light area, front bumper area and * * *
started pounding on the car.” (Aug. 3, 2020 Tr., Vol. I, at 159). Because McKee
was not heeding his order to stop, he “focused on the driver, “[l]ooked at her and
identified Ms. Kreischer as being in the driver’s seat and * * * told her stop, don’t
do this, stop what you’re doing.” (Id.). (See also id. at 160). Sergeant Conn testified
that he made eye contact with Kreischer when he “was banging on the hood” and
ordering her to stop. (Id. at 162). He clarified that he “slapped the top of the car a
couple times” and that Kreischer “had to have seen [him] there.” (Id. at 166).
{¶5} Thereafter, McKee entered the vehicle through the driver’s side and
“[t]he car went forward” striking Sergeant Conn. (Id. at 162). Within seconds of
Sergeant Conn’s call for assistance, the vehicle operated by Kreischer was stopped
by Lieutenant James Haggerty (“Lieutenant Haggerty”) of the Van Wert City Police
Department after he activated his overhead lights to initiate a traffic stop. (Id. at
195). Kreischer stopped the vehicle “within a block” after turning the corner onto
Race Street. (Id. at 196).
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{¶6} On April 2, 2020, the Van Wert County Grand Jury indicted Kreischer
on Count One of failure to comply with an order or signal of a police officer in
violation of R.C. 2921.331(B), (C)(5)(a)(ii), a third-degree felony, and Count Two
of assault in violation of R.C. 2903.13(A), (C)(5), a fourth-degree felony. (Doc.
No. 4). On April 8, 2020, Kreischer appeared for arraignment and entered pleas of
not guilty. (Doc. No. 13).
{¶7} The case proceeded to a jury trial on August 3-4, 2020, after which the
jury found Kreischer guilty of both counts in the indictment. (Doc. No. 51); (Aug.
3, 2020 Tr., Vol I, at 48); (Aug. 4, 2020 Tr., Vol. II, at 205, 318). On August 12,
2020, the trial court sentenced Kreischer to 24 months in prison on Count One and
18 months in prison on Count Two, and ordered Kreischer to serve the sentences
consecutively for an aggregate term of 42 months in prison. (Doc. No. 54). The
trial court further ordered that the sentence imposed in this case run consecutively
to Kreischer’s sentence imposed in her federal-court case. (Id.).
{¶8} Kreischer filed her notice of appeal on August 28, 2020, and raises four
assignments of error for our review. (Doc. No. 217). For ease of our discussion,
we will begin by addressing Kreischer’s first and second assignment of errors
together, followed by her third and fourth assignments of error.
Assignment of Error No. I
The trial court violated Marissa Kreischer’s rights to due process
and a fair trial when it entered judgment of conviction for assault
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and operating a vehicle to willfully elude or flee a police officer
against the manifest weight of the evidence. Fifth and Fourteenth
Amendments, United States Constitution; Article I, Section 16,
Ohio Constitution; State v. Thompkins, 78 Ohio St.3d 380, 387, 678
N.#.23 541 (1997). (Aug. 12, 2020 Entry; Jury Trial Day 2, p. 317-
318).
Assignment of Error No. II
Marissa Kreischer’s conviction for assault was supported
insufficient evidence in violation of her rights to due process of
law. Fifth and Fourteenth Amendments, United States
Constitution; Article I, Section 10, Ohio Constitution. (Aug 12,
2020 Entry; Transcript, Jury Trial Day 2, p. 317-318).
{¶9} In her first and second assignments of error, Kreischer argues that her
assault and failure-to-comply-with-an-order-or-signal-of-police-officer convictions
are based on insufficient evidence and are against the manifest weight of the
evidence. In particular, Kreischer argues in her second assignment of error that
(only) her assault conviction is based on insufficient evidence as to whether she
acted knowingly. Kreischer specifically argues in her first assignment of error that
her assault and failure-to-comply-with-an-order-or-signal-of-police-officer
convictions are against the manifest weight of the evidence because she contends
that the evidence belies that she acted with purpose or knowledge. She further
argues under her first assignment of error that the jury lost its way in concluding
that she was in control of the vehicle.
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Standard of Review
{¶10} Manifest “weight of the evidence and sufficiency of the evidence are
clearly different legal concepts.” State v. Thompkins, 78 Ohio St.3d 380, 389
(1997). Therefore, we address each legal concept individually.
{¶11} “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.” State v. Jenks, 61 Ohio
St.3d 259 (1981), paragraph two of the syllabus, superseded by state constitutional
amendment on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997). Accordingly,
“[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.” Id. “In deciding if the
evidence was sufficient, we neither resolve evidentiary conflicts nor assess the
credibility of witnesses, as both are functions reserved for the trier of fact.” State v.
Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-4775, ¶ 33,
citing State v. Williams, 197 Ohio App.3d 505, 2011-Ohio-6267, ¶ 25 (1st Dist.).
See also State v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19
(“Sufficiency of the evidence is a test of adequacy rather than credibility or weight
of the evidence.”), citing Thompkins at 386.
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{¶12} On the other hand, in determining whether a conviction is against the
manifest weight of the evidence, a reviewing court must examine the entire record,
“‘weigh[ ] the evidence and all reasonable inferences, consider[ ] the credibility of
witnesses and determine[ ] whether in resolving 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.’” Thompkins at 387,
quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A reviewing
court must, however, allow the trier of fact appropriate discretion on matters relating
to the weight of the evidence and the credibility of the witnesses. State v. DeHass,
10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight standard,
“[o]nly in exceptional cases, where the evidence ‘weighs heavily against the
conviction,’ should an appellate court overturn the trial court’s judgment.” State v.
Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v.
Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.
Sufficiency of the Evidence Analysis
{¶13} We will begin by addressing Kreischer’s sufficiency-of-the-evidence
argument as it relates to her assault conviction. See State v. Velez, 3d Dist. Putnam
No. 12-13-10, 2014-Ohio-1788, ¶ 68, citing State v. Wimmer, 3d Dist. Marion No.
9-98-46, 1999 WL 355190, *1 (Mar. 26, 1999). Kreischer was convicted of assault
in violation of R.C. 2903.13(A), which provides, in relevant part, “No person shall
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knowingly cause or attempt to cause physical harm to another * * * .” R.C.
2903.13(A). The requisite culpable mental state for assault is “knowingly.” “A
person acts knowingly, regardless of his purpose, when he is aware that his conduct
will probably cause a certain result or will probably be of a certain nature. A person
has knowledge of circumstances when he is aware that such circumstances probably
exist.” R.C. 2901.22(B). “‘Physical harm to persons’ means any injury, illness, or
other physiological impairment, regardless of its gravity or duration.” R.C.
2901.01(A)(3).
{¶14} On appeal, Kreischer argues only that a rational trier of fact could not
have found that she acted knowingly. Rather, Kreischer argues that the evidence
that the State presented at trial demonstrates, at best, that she acted recklessly.
Because it is the only element that Kreischer challenges on appeal, we will review
the sufficiency of the evidence supporting only whether she acted knowingly.
{¶15} “Knowledge is a state of mind that must be proved from the
surrounding facts and circumstances.” In re F.D., 8th Dist. Cuyahoga No. 102135,
2015-Ohio-2405, ¶ 16, citing State v. Anderson, 10th Dist. Franklin No. 06AP-174,
2006-Ohio-6152, ¶ 42, citing State v. Dotson, 2d Dist. Clark No. 97-CA-0071, 1997
WL 822694, *2 (Nov. 21, 1997). “The mental element of knowledge does not
require an inquiry into the purpose for an act, but, involves the question of whether
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an individual is aware that his or her conduct will probably cause a certain result or
will probably be of a certain nature.” Id., citing Anderson at ¶ 43.
{¶16} Reckless-mental culpability is defined under R.C. 2901.22, which
provides as follows:
A person acts recklessly when, with heedless indifference to the
consequences, the person disregards a substantial and unjustifiable
risk that the person’s conduct is likely to cause a certain result or is
likely to be of a certain nature. A person is reckless with respect to
circumstances when, with heedless indifference to the consequences,
the person disregards a substantial and unjustifiable risk that such
circumstances are likely to exist.
R.C. 2901.22(C).
{¶17} The definitions of “‘knowingly’ and ‘recklessly’ are separated by
degrees of awareness.” State v. Stevens, 6th Dist. Lucas No. L-19-1219, 2020-Ohio-
6981, ¶ 26. “The perception of the likely result, therefore, controls in distinguishing
between knowing and reckless conduct. ‘If the result is probable, the person acts
“knowingly”; if it is not probable but only possible, the person acts “recklessly” if
he chooses to ignore the risk.’” Id., quoting State v. Edwards, 83 Ohio App.3d 357,
361 (10th Dist.1992).
{¶18} On appeal, Kreischer contends that the State did not present sufficient
evidence that she acted knowingly because “[n]one of the State’s witnesses testified
regarding the probability of the car hitting Sergeant Conn.” (Appellant’s Brief at
20). Rather, Kreischer contends that she cannot be convicted of assault because the
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State’s witnesses described merely a “likelihood” of physical harm to Sergeant
Conn from by the acceleration of the vehicle. Kreischer’s argument is misplaced.
{¶19} “Generally, the intent of a person cannot be proven by direct evidence,
thus proof of intent may be shown from circumstantial evidence.” State v. Cole, 3d
Dist. Seneca No. 13-10-30, 2011-Ohio-409, ¶ 23, citing State v. Lott, 51 Ohio St.3d
160, 168 (1990) and State v. O’Black, 3d Dist. Allen No. 1-10-25, 2010-Ohio-4812,
¶ 18. “Circumstantial evidence is ‘“the proof of certain facts and circumstances in
a given case, from which the jury may infer other connected facts which usually and
reasonably follow according to the common experience of mankind.”’” Id., quoting
State v. Fisher, 3d Dist. Auglaize No. 2-10-09, 2010-Ohio-5192, ¶ 26, quoting State
v. Duganitz (1991), 76 Ohio App.3d 363, 367 (8th Dist.1991), citing Black’s Law
Dictionary 221 (5th Ed.1979).
{¶20} Circumstantial evidence has no less probative value than direct
evidence. State v. Griesheimer, 10th Dist. Franklin No. 05AP-1039, 2007-Ohio-
837, ¶ 26, citing Jenks, 61 Ohio St.3d at paragraph one of the syllabus. See also
State v. Heinish, 50 Ohio St.3d 231, 238 (1990) (“This court has long held that
circumstantial evidence is sufficient to sustain a conviction if that evidence would
convince the average mind of the defendant’s guilt beyond a reasonable doubt.”).
“‘[A]ll that is required of the jury is that it weigh all of the evidence, direct and
circumstantial, against the standard of proof beyond a reasonable doubt.’” State v.
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Miller, 8th Dist. Cuyahoga No. 103591, 2016-Ohio-7606, ¶ 61, quoting Jenks at
272. “‘“Circumstantial evidence is not only sufficient, but may also be more certain,
satisfying, and persuasive than direct evidence.”’” Id., quoting State v. Hawthorne,
8th Dist. Cuyahoga No. 96496, 2011-Ohio-6078, ¶ 9, quoting Michalic v. Cleveland
Tankers, Inc., 364 U.S. 325, 330, 81 S.Ct. 6 (1960).
{¶21} Viewing the evidence in a light most favorable to the prosecution, we
conclude that Kreischer’s assault conviction is based on sufficient evidence. That
is, the State presented sufficient evidence at trial from which the trier of fact could
reasonably infer that Kreischer acted knowingly. Specifically, the State presented
the testimony of Sergeant Conn who testified that he “pound[ed]” on Kreischer’s
vehicle from the area of the front bumper near the headlamp on the passenger’s side.
(Aug. 3, 2020 Tr., Vol. I, at 159). Sergeant Conn testified that, because McKee did
not heed his order to stop, he “focused” on Kreischer “as being in the driver’s seat
and” “told her stop.” (Id.). (See also id. at 162). He testified that Kreischer “had
to have seen” him because he made eye contact with her and “slapped the top of the
car a couple times.” (Id. at 166). Sergeant Conn testified that, once McKee entered
the vehicle through the driver’s side, “[t]he car went forward,” striking his left arm
and thumb and causing his back to twist and his body to spin away from the vehicle.
(Id. at 162-163). According to Sergeant Conn, Kreischer was “[t]he only person
[he] saw in the driver’s seat * * * .” (Id. at 165). Based on that evidence, a rational
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trier of fact could have found beyond a reasonable doubt that Kreischer acted
knowingly—that is the jury could infer from the evidence presented by the State at
trial that Kreischer was aware that her conduct—accelerating the vehicle while
Sergeant Conn was positioned where he was positioned—would probably cause (or
attempt to cause) Sergeant Conn physical harm. See Stevens, 2020-Ohio-6981, at ¶
27-28. Consequently, Kreischer’s assault conviction is based on sufficient
evidence.
{¶22} Having concluded that Kreischer’s assault conviction is based on
sufficient evidence, we next address Kreischer’s arguments that her assault and
failure-to-comply-with-an-order-or-signal-of-police-officer convictions are against
the manifest weight of the evidence. Velez, 2014-Ohio-1788, at ¶ 76.
Manifest Weight of the Evidence
{¶23} Kreischer contends that her assault and failure-to-comply-with-an-
order-or-signal-of-police-officer convictions are against the manifest weight of the
evidence because the weight of the evidence presented at trial suggests that she did
not act with the requisite mental-culpability standard required for each offense. In
other words, Kreischer argues that the jury lost its way in concluding that she acted
knowingly and purposely.
{¶24} We will begin by addressing the weight the weight of the evidence
supporting Kreischer’s assault conviction. Here, similar to her challenging the
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sufficiency-of-the-evidence argument, Kreischer contends that her assault
conviction is against the manifest weight of the evidence because the weight of the
evidence reflects that she did not act knowingly. Specifically, Kreischer’s argues
that the weight of the evidence demonstrates that she did not act knowingly because
“[e]ach of the State’s witnesses who were present during the incident testified
regarding a likelihood, not a probability, that Sergeant Conn would be injured” since
Sergeant Conn was not standing directly in front of her vehicle when she
accelerated. (Appellant’s Brief at 15).
{¶25} However, that evidence does not outweigh the evidence that we
summarized in our sufficiency-of-the-evidence argument that Kreischer acted
knowingly. Notably, Kreischer overlooks the substantial evidence presented by the
State from which the jury could infer that Kreischer was aware that her conduct (i.e.,
accelerating the vehicle while Sergeant Conn was positioned where he was
positioned) would probably cause (or attempt to cause) Sergeant Conn physical
harm. See Stevens, 2020-Ohio-6981, at ¶ 32; State v. Cash, 6th Dist. Lucas No. L-
03-1198, 2005-Ohio-1382, ¶ 7. See also Stevens at ¶ 31 (reaffirming that “intent
may be inferred from the totality of the circumstances” in addressing Stevens’s
manifest-weight-of-the-evidence argument), citing State v. Rodriquez, 6th Dist.
Wood No. WD-02-046, 2003-Ohio-3453, ¶ 36. Therefore, we cannot conclude that
the jury clearly lost its way in concluding that Kreischer acted knowingly.
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{¶26} Turning to Kreischer’s failure-to-comply-with-an-order-or-signal-of-
police-officer conviction, Kreischer challenges the weight of the evidence
supporting that she acted with purpose. Specifically, Kreischer contends that the
weight of the evidence presented at trial suggests that she was not “a willful
participant in [McKee’s] police evasion.” (Appellant’s Brief at 11).
{¶27} The criminal offense of the failure to comply with an order or signal
of a police officer is codified under R.C. 2921.331, which provides, in its pertinent
part, “No person shall operate a motor vehicle so as willfully to elude or flee a police
officer after receiving a visible or audible signal from a police officer to bring the
person’s motor vehicle to a stop.” Although “the term ‘willfully’ is not defined in
R.C. 2901.22, which is the statutory provision that covers culpable mental states for
criminal liability,” “the 1974 committee comments to R.C. 2901.22” indicate that
“‘[p]urpose is defined in terms of a specific intention either to cause a certain result,
or to engage in conduct of a certain nature regardless of what the offender intends
to accomplish through that conduct. “Purposely” in the new code equates with
“purposely,” “intentionally,” “willfully,” or “deliberately” in the former law.’”
State v. Cole, 3d Dist. Seneca No. 13-10-30, 2011-Ohio-409, ¶ 22, quoting R.C.
2901.22. See also State v. McDonald, 137 Ohio St.3d 517, 2013-Ohio-5042, ¶ 21.
{¶28} In support of her argument (that her failure-to-comply-with-an-order-
or-signal-of-police-officer conviction is against the manifest weight of the
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evidence), Kreischer argues that (1) the absence of evidence of a coordinated plan
with McKee; (2) the evidence that McKee entered the vehicle on the driver’s side
instead of through the passenger side of the vehicle; (3) the evidence that “Kreischer
was in shock and unable to control the car because she was pinned down under Ms.
McKee’s body”; and (4) that evidence that she “was tremendously distraught as she
exited the car” weighs against the State’s evidence that she acted with purpose.
(Appellant’s Brief at 11). However, based on our review of the record, we conclude
that Kreischer’s evidence does not outweigh the conclusion that she willfully eluded
or fled a police officer after receiving a visible or audible signal to bring her vehicle
to a stop.
{¶29} “Although we review credibility when considering the manifest
weight of the evidence, the credibility of witnesses is primarily a determination for
the trier of fact.” State v. Banks, 8th Dist. Cuyahoga No. 96535, 2011-Ohio-5671,
¶ 13, citing DeHass, 10 Ohio St.2d 230, at paragraph one of the syllabus. “The trier
of fact is best able ‘to view the witnesses and observe their demeanor, gestures[,]
and voice inflections, and use these observations in weighing the credibility of the
proffered testimony.’” Id., quoting State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-
2202, ¶ 24, citing Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80-81
(1984). “When examining witness credibility, ‘the choice between credible
witnesses and their conflicting testimony rests solely with the finder of fact and an
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appellate court may not substitute its own judgment for that of the finder of fact.’”
In re N.Z., 11th Dist. Lake Nos. 2010-L-023, 2010-L-035, and 2010-L-041, 2011-
Ohio-6845, ¶ 79, quoting State v. Awan, 22 Ohio St.3d 120, 123 (1986). “‘“A
verdict is not against the manifest weight of the evidence because the [jury] chose
to believe the State’s witnesses rather than the defendant’s version of the events.”’”
State v. Missler, 3d Dist. Hardin No. 6-14-06, 2015-Ohio-1076, ¶ 44, quoting State
v. Bean, 9th Dist. Summit No. 26852, 2014-Ohio-908, ¶ 15, quoting State v.
Martinez, 9th Dist. Wayne No. 12CA0054, 2013-Ohio-3189, ¶ 16.
{¶30} In addition to Sergeant Conn’s testimony, the jury also heard the
testimony of other witnesses describing Sergeant Conn’s efforts to stop the vehicle
operated by Kreischer. Specifically, Mengerink testified that Sergeant Conn was
“standing near the passenger side, right front tire area, fender area, yelling at the
people in the car to stop, turn the engine off, get out of the car. Nobody complied.
[H]e probably yelled that maybe two, three times.” (Aug. 3, 2020 Tr., Vol. I, at
105). He further testified that Sergeant Conn was “touching the car. His hands were
on the car, yelling at them to get out and the car took off at a high rate of speed.”
(Id.). Likewise, Andrew Munshower (“Munshower”), a probation officer at the Van
Wert Municipal Court testified that “Sergeant Conn ordered the vehicle * * * to
stop. Also, several occasions, Sergeant Conn did place his hand on the vehicle and
somewhat smack or pound on the hood to get, try to gain whoever [sic] the driver
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was attention to stop the vehicle * * * .” (Id. at 135). Also, Austin Speice
(“Speice”), a parole officer with the Van Wert Adult Parole Authority, testified that
“Sergeant Conn then got in front of the car and was telling the car to stop. He was
holding his hands up and at one time, * * * he kind of rested his hand on the front
end of the car and was telling them to stop. And then, * * * more yelling was going
on for them to stop. The car then continued to roll where Sergeant Conn was * * *
bumped * * * .” (Aug. 4, 2020 Tr., Vol. II, at 217).
{¶31} The jury was able to compare Sergeant Conn’s, Mengerink’s,
Munshower’s, and Speice’s testimony against Kreischer’s testimony that she did
not see or hear Sergeant Conn (in addition to any suggestion that she did not act
willfully), and it is well within the province of the trier of fact to determine
Kreischer’s credibility in making those statements including the prerogative to find
Kreischer not to be truthful. See State v. Voll, 3d Dist. Union No. 14-12-04, 2012-
Ohio-3900, ¶ 27. For instance, the jury was able to compare Kreischer’s testimony
that McKee “pinned [her] arm * * * [a]nd as she got in, [Kreischer’s] foot fell off
the brake and [McKee] put her foot on the accelerator, and she made that car leave
that scene” against Sergeant Conn’s testimony that “[t]he only person [he] saw in
the driver’s seat was Ms. Kreischer.” (Aug. 3, 2020 Tr., Vol. I, at 165); (Aug. 4,
2020 Tr., Vol. II, at 253). The jury was also able to compare Kreischer’s and
Sergeant Conn’s testimony against Lieutenant Haggerty’s testimony that he
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encountered the vehicle operated by Kreischer (within seconds of Sergeant Conn’s
call for assistance) and that he identified Kreischer as operating the vehicle and
noted that there was a passenger in the passenger’s seat. (Aug. 3, 2020, Tr., Vol. I,
at 192-195). Consequently, the jury was free to weigh that evidence and infer that
Kreischer acted with purpose. Thus, we cannot conclude that the trier of fact clearly
lost its way in concluding that Kreischer acted willfully.
{¶32} Finally, Kreischer contends that her assault and failure-to-comply-
with-an-order-or-signal-of-police-officer convictions are against the manifest
weight of the evidence because the trier of fact lost its way in concluding that “she
was in control of the car when it accelerated away from the courthouse.”
(Appellant’s Brief at 16). In other words, Kreischer is challenging the weight of the
evidence supporting the issue of identity as to her convictions. See State v.
Littlejohn, 8th Dist. Cuyahoga No. 101549, 2015-Ohio-875, ¶ 30. See also Missler,
2015-Ohio-1076, at ¶ 13. “‘It is well settled that in order to support a conviction,
the evidence must establish beyond a reasonable doubt the identity of the defendant
as the person who actually committed the crime at issue.’” Missler at ¶ 13, quoting
State v. Johnson, 7th Dist. Jefferson No. 13 JE 5, 2014-Ohio-1226, ¶ 27, citing State
v. Collins, 8th Dist. Cuyahoga No. 98350, 2013-Ohio-488, ¶ 19, and State v.
Lawwill, 12th Dist. Butler No. CA2007-01-014, 2008-Ohio-3592, ¶ 11.
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{¶33} On appeal, Kreischer argues that the evidence identifying her as the
person “in control of the car when it accelerated from the courthouse” is outweighed
by the evidence “that she was unable to control the car once Ms. McKee jumped
inside the car and landed on top of her.” (Appellant’s Brief at 16). More
specifically, Kreischer argues that her convictions are against the manifest weight
of the evidence because the trier of fact lost its way in failing to account for her
version of the incident. However, based on our review of the evidence summarized
above, we cannot conclude that the trier of fact clearly lost its way in choosing to
believe the State’s witnesses rather than Kreischer’s own version of the events. See
Missler at ¶ 44. Indeed, the evidence identifying Kreischer as the operator of the
vehicle outweighs any evidence to the contrary. See State v. Leach, 9th Dist.
Summit No. 22369, 2005-Ohio-2569, ¶ 19-21. Accordingly, we cannot conclude
that the jury clearly lost its way and created such a manifest miscarriage of justice
that Kreischer’s assault and failure-to-comply-with-an-order-or-signal-of-police-
officer convictions must be reversed and a new trial ordered.
{¶34} For these reasons, Kreischer’s first and second assignments of error
are overruled.
Assignment of Error No. III
Trial counsel provided ineffective assistance of counsel, in
violation of the Sixth Amendment to the United States
Constitution and Article I, Section 10 of the Ohio Constitution.
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
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674 (1984). (Aug. 12, 2020 Entry, Transcript, Jury Trial Day 2,
p. 317-318).
{¶35} In her third assignment of error, Kreischer argues that her trial counsel
was ineffective. In particular, she argues that her trial counsel was ineffective for
failing to move for a Crim.R. 29 judgment of acquittal “with respect to the mental
state requirement of the assault charge.” (Appellant’s Brief at 21). However, based
on our resolution of her second assignment of error, Kreischer’s third assignment of
error is moot and we decline to address it. App.R. 12(A)(1)(c); State v. Williams,
9th Dist. Summit No. 26014, 2012-Ohio-5873, ¶ 21.
Assignment of Error No. IV
Marissa Kreischer’s maximum sentence for her fourth-degree
felony assault conviction is not supported by competent, credible
evidence in the record. Fifth, Sixth and Fourteenth Amendments,
United States Constitution. R.C. 2953.08; R.C. 2929.11; R.C.
2929.12. (Aug. 12, 2020 Entry; Transcript, Sentencing Hearing,
p. 325-327).
{¶36} In her fourth assignment of error, Kreischer argues that the trial court
erred by imposing a maximum sentence. Specifically, Kreischer argues that the trial
court erred by imposing a maximum sentence as to her assault conviction because
“the record reveals that [her] conduct did not constitute the most serious form of
assault.” (Appellant’s Brief at 23).
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Standard of Review
{¶37} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence
“only if it determines by clear and convincing evidence that the record does not
support the trial court’s findings under relevant statutes or that the sentence is
otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,
¶ 1. Clear and convincing evidence is that “‘which will produce in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be established.’” Id.
at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the
syllabus.
Analysis
{¶38} “It is well-established that the statutes governing felony sentencing no
longer require the trial court to make certain findings before imposing a maximum
sentence.” State v. Maggette, 3d Dist. Seneca No. 13-16-06, 2016-Ohio-5554, ¶ 29,
citing State v. Dixon, 2d Dist. Clark No. 2015-CA-67, 2016-Ohio-2882, ¶ 14
(“Unlike consecutive sentences, the trial court was not required to make any
particular ‘findings’ to justify maximum prison sentences.”) and State v. Hinton, 8th
Dist. Cuyahoga No. 102710, 2015-Ohio-4907, ¶ 9 (“The law no longer requires the
trial court to make certain findings before imposing a maximum sentence.”).
Rather, “‘trial courts have full discretion to impose any sentence within the statutory
range.’” State v. Smith, 3d Dist. Seneca No. 13-15-17, 2015-Ohio-4225, ¶ 10,
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quoting State v. Noble, 3d Dist. Logan No. 8-14-06, 2014-Ohio-5485, ¶ 9, citing
State v. Saldana, 3d Dist. Putnam No. 12-12-09, 2013-Ohio-1122, ¶ 20.
{¶39} In this case, as a fourth-degree felony, assault carries a sanction of 6-
months to 18-months of imprisonment. R.C. 2903.13(A), (C)(5), 2929.14(A)(4).
Because the trial court sentenced Kreischer to 18 months in prison, the trial court’s
sentence falls within the statutory range. “[A] sentence imposed within the statutory
range is ‘presumptively valid’ if the [trial] court considered applicable sentencing
factors.” Maggette at ¶ 31, quoting State v. Collier, 8th Dist. Cuyahoga No. 95572,
2011-Ohio-2791, ¶ 15.
{¶40} “R.C. 2929.11 provides, in pertinent part, that the ‘overriding purposes
of felony sentencing are to protect the public from future crime and to punish the
offender.’” Smith at ¶ 10, quoting R.C. 2929.11(A). “In advancing these purposes,
sentencing courts are instructed to ‘consider the need for incapacitating the offender,
deterring the offender and others from future crime, rehabilitating the offender, and
making restitution to the victim of the offense, the public, or both.’” Id., quoting
R.C. 2929.11(A). “Meanwhile, R.C. 2929.11(B) states that felony sentences must
be ‘commensurate with and not demeaning to the seriousness of the offender’s
conduct and its impact upon the victim’ and also be consistent with sentences
imposed in similar cases.” Id., quoting R.C. 2929.11(B). “In accordance with these
principles, the trial court must consider the factors set forth in R.C. 2929.12(B)-(E)
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relating to the seriousness of the offender’s conduct and the likelihood of the
offender’s recidivism.” Id., citing R.C. 2929.12(A). “‘A sentencing court has broad
discretion to determine the relative weight to assign the sentencing factors in R.C.
2929.12.” Id. at ¶ 15, quoting State v. Brimacombe, 195 Ohio App.3d 524, 2011-
Ohio-5032, ¶ 18 (6th Dist.), citing State v. Arnett, 88 Ohio St.3d 208, 215 (2000).
{¶41} “Although the trial court must consider the purposes and principles of
felony sentencing set forth in R.C. 2929.11 and the sentencing factors listed in R.C.
2929.12, the sentencing court is not required to ‘state on the record that it considered
the statutory criteria or discuss[ed] them.’” Maggette at ¶ 32, quoting State v.
Polick, 101 Ohio App.3d 428, 431 (4th Dist.1995). “A trial court’s statement that
it considered the required statutory factors, without more, is sufficient to fulfill its
obligations under the sentencing statutes.” Id., citing State v. Abrams, 8th Dist.
Cuyahoga No. 103786, 2016-Ohio-4570, citing State v. Payne, 114 Ohio St.3d 502,
2007-Ohio-4642, ¶ 18.
{¶42} At Kreischer’s sentencing hearing and in its sentencing entry, the trial
court considered the R.C. 2929.11 and 2929.12 factors. (Aug. 12, 2020 Tr. at 324-
325); (Doc. No. 54). In particular, in assessing whether Kreischer was likely to
commit future crimes, the trial court found that she “committed this offense while
on a bond awaiting imposition of sentence in the United States District Court for the
Northern District of Ohio, Western Division, Toledo, Ohio, case number 3:82-
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CR00728-JZ.” (Aug. 12, 2020 Tr. at 325). See R.C. 2929.12(D)(1). As a result,
the trial court found that Kreischer “is not amenable to Community Control, and
that prison is consistent with the purposes and principles of sentencing set forth in
2929.11.” (Id.). The trial court did not indicate that it found applicable any factors
under R.C. 2929.12(E) indicating that Kreischer is not likely to commit future
crimes. Likewise, the trial court did not indicate that it found applicable any factors
under R.C. 2929.12(B) or (C) reflecting the seriousness of Kreischer’s conduct.
{¶43} Nevertheless, Kreischer argues on appeal that the trial court erred by
sentencing her to a maximum term of imprisonment without finding that she
committed “the worst form of the offense.” Kreischer’s argument is misplaced.
“R.C. 2929.14(C) previously provided that a maximum sentence could be imposed
only upon offenders who committed the worst form of the offense, offenders who
pose the greatest likelihood of committing future crimes, and certain repeat violent
offenders.” State v. Cole, 6th Dist. Erie No. E-18-061, 2019-Ohio-5425, ¶ 34. “This
language was deleted from the statute in 2011. Sentencing courts are no longer
required to explain its reasons for imposing a maximum sentence.” Id., citing State
v. Pippin, 6th Dist. Lucas No. L-18-1023, 2019-Ohio-1387, ¶ 17.
{¶44} Because the trial court considered the applicable sentencing criteria
under R.C. 2929.12, the trial court did not err by imposing a maximum-prison
sentence. Furthermore, our review of the record reveals that it clearly and
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convincingly supports the trial court’s findings. Specifically, after weighing the
seriousness and recidivism factors, the trial court concluded that Kreischer failed to
overcome the presumption in favor of prison and that she is likely to commit future
crimes. Importantly, in concluding that Kreischer is likely to commit future crimes,
the trial court found that Kreischer committed the offenses in this case while
awaiting sentencing in another case. Furthermore, the trial court indicated that it
reviewed and considered the presentence-investigation report (“PSI”). In particular,
the PSI reflects that Kreischer has a significant history of criminal convictions,
including a demonstrated pattern of drug and alcohol abuse.
{¶45} Accordingly, we will not reverse Kreischer’s sentence because it is
within the permissible statutory range, the trial court properly considered the criteria
found in R.C. 2929.11 and 2929.12, and Kreischer has not demonstrated clearly and
convincingly that the record does not support the trial court’s findings under R.C.
2929.11 and 2929.12 or that the sentence is otherwise contrary to law. See
Maggette, 2016-Ohio-5554, at ¶ 36.
{¶46} Therefore, Kreischer’s fourth assignment of error is overruled.
{¶47} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI, P.J. and SHAW, J., concur.
/jlr
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