[Cite as State v. Sherman, 2015-Ohio-3514.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. Sheila G. Farmer, J.
Hon. John W. Wise, J.
-vs-
Case No. 14-CA-105
AUBREY SHERMAN
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Municipal
Court, Case No. 14CRB00263
JUDGMENT: Affirmed in part, Reversed in part, and
Remanded for resentencing
DATE OF JUDGMENT ENTRY: August 27, 2015
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
AMY S. DAVISON WILLIAM T. CRAMER
40 West Main Street 470 Olde Worthington Road, Suite 200
Newark, Ohio 43055 Westerville, Ohio 43082
Licking County, Case No. 14-CA-105 2
Hoffman, P.J.
{¶1} Defendant-appellant Aubrey Sherman appeals his conviction and
sentence for assault entered by the Licking County Municipal Court. Plaintiff-appellee is
the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On February 10, 2015, Sierra Clark was working at Aspen Fitness. She
noticed a black SUV parked in the middle of the parking lot. The car was parked in a
diagonal position, which Clark thought strange due to the small number of cars in the
parking lot. Clark recognized the car as belonging to Jessica Boley, a regular customer
of Aspen Fitness.
{¶3} As Clark observed the car, she noticed Appellant exit the driver's side of
the vehicle, and walk around to the passenger side of the vehicle. Clark then saw
Appellant hit Boley in the face and body with his fist. After Appellant stuck her a few
times, Boley fell to the ground. Appellant then kicked Boley in the stomach and legs.
When Boley tried to stand, Appellant grabbed her by the hair, pulled her up and pushed
her against the car.
{¶4} Valerie Keaser, who was exercising at Aspen Fitness, also observed
Appellant and Boley struggling in the parking lot. She noted Appellant appeared to be
beating Boley, so Keaser yelled to Clark to call 9-1-1. Keaser saw Boley on the ground
next to the passenger door of the car, and Sherman was pulling her by the hair with
both hands. Keaser observed Appellant kick Boley once and could hear her screaming.
{¶5} Boley attempted to seek help from a driver in a nearby car, but the
individual would not assist her. Clark and Keaser then yelled for her to come into Aspen
Licking County, Case No. 14-CA-105 3
Fitness. Boley went into Aspen Fitness hysterical, with a bloody nose and mouth. Clark
locked the door behind her. Appellant did not try to come into Aspen Fitness and did
not make any threats.
{¶6} When the police responded, Boley told the investigating officers she had
fallen on the ice in the parking lot. She stated she did not know what happened after
she was pulled out of the car. She did not want to pursue charges and refused to write
a statement. Additionally, she refused to seek medical treatment.
{¶7} As a result of the incident, Appellant was charged with misdemeanor
assault, in violation of R.C. 2903.13(A). The matter proceeded to a jury trial, wherein
Boley testified for the defense. The jury found Appellant guilty of the charge, and the
trial court sentenced him to 90 days in jail, with 33 days of jail credit, imposing a fine of
$300 and court costs.
{¶8} Appellant appeals, assigning as error:
{¶9} "I. APPELLANT'S RIGHTS TO DUE PROCESS UNDER THE STATE
AND FEDERAL CONSTITUTIONS WERE VIOLATED BECAUSE HIS CONVICTION
FOR ASSAULT WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE.
{¶10} "II. THE CONVICTION FOR ASSAULT WAS NOT SUPPORTED BY THE
WEIGHT OF THE EVIDENCE.
{¶11} "III. THE TRIAL COURT VIOLATED R.C. 2947.14 BY INCLUDING A
PROVISION IN THE SENTENCING ENTRY INDICATING THAT APPELLANT WOULD
BE JAILED FOR NON-PAYMENT OF A FINE WITHOUT DETERMINING AT
SENTENCING THAT APPELLANT HAD THE ABILITY TO PAY THE FINE AND
INCLUDING THE STATUTORY FINDINGS IN A WRITTEN JUDGMENT ENTRY.
Licking County, Case No. 14-CA-105 4
{¶12} "IV. THE TRIAL COURT VIOLATED R.C. 2947.14 BY AUTHORIZING
CREDIT OF $30 PER DAY FOR JAIL TIME IMPOSED FOR NON-PAYMENT OF
FINES WHEN THE STATUTE PROVIDES FOR $50 PER DAY."
I. and II.
{¶13} In the first assignment of error, Appellant maintains his conviction for
misdemeanor assault is not supported by the manifest weight or sufficiency of the
evidence.
{¶14} R.C. 2903.13(A) reads, "No person shall knowingly cause or attempt to
cause physical harm to another."
{¶15} Appellant relies upon the testimony of Boley who stated she slipped and
fell on the ice in the parking lot, and does not remember sustaining injuries.
{¶16} In either a criminal or civil case, the weight to be given the evidence and
the credibility of the witnesses are primarily for the trier of fact. By the verdict rendered
herein, it is apparent the jury believed the testimony of the prosecuting witnesses and
the corroborating evidence presented by the state. State v. DeHass, 10 Ohio St. 2d
230, 231, 227 N.E.2d 212, 213, (1967)
{¶17} A review of the sufficiency of the evidence and a review of the manifest
weight of the evidence are separate and legally distinct determinations. State v. Gulley
(Mar.15, 2000), 9th Dist. No. 19600, at 3. “While the test for sufficiency requires a
determination of whether the State has met its burden of production at trial, a manifest
weight challenge questions whether the State has met its burden of persuasion.” State
v. Thompkins (1997), 78 Ohio St.3d 380, 390.
Licking County, Case No. 14-CA-105 5
{¶18} In order to determine whether the evidence before the trial court was
sufficient to sustain a conviction, this Court must review the evidence in a light most
favorable to the prosecution. State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two
of the syllabus, superseded by State constitutional amendment on other grounds in
State v. Smith (1997), 80 Ohio St.3d 89.
{¶19} Specifically, 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, supra. This test
raises a question of law and does not allow the court to weigh the evidence. State v.
Martin (1983), 20 Ohio App.3d 172, 175. 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.”
State v. Thompkins, 78 Ohio St.3d at 386.
{¶20} A weight of the evidence challenge indicates that a greater amount of
credible evidence supports one side of the issue than supports the other. State v.
Thompkins, 78 Ohio St.3d at 387. Further, when reversing a conviction on the basis that
the conviction was against the manifest weight of the evidence, the appellate court sits
as the “thirteenth juror” and disagrees with the fact finder's resolution of the conflicting
testimony. Id. at 388. An appellate court must make every reasonable presumption in
favor of the judgment and Findings of Fact of the trial court. Karches v. Cincinnati
(1988), 38 Ohio St.3d 12, 19. “The verdict will not be disturbed unless the appellate
court finds that reasonable minds could not reach the conclusion reached by the trier of
Licking County, Case No. 14-CA-105 6
fact.” State v. Clemons (1998), 82 Ohio St.3d 438, 444, citing State v. Jenks, 61 Ohio
St.3d at 273. Therefore, this Court's “discretionary power * * * should be exercised only
in the exceptional case in which the evidence weighs heavily against the conviction.”
State v. Martin (1983), 20 Ohio App.3d 172, 175.
{¶21} Here, Sierra Clark testified at trial as to her observations of Appellant
pulling Boley out of the car and hitting her in the face and body with his fist. She
testified he then kicked her and grabbed her by the hair, pulling her up and pushing her
against the car.
{¶22} Valerie Keaser also testified as to witnessing Appellant and Boley
struggling near the car. She testified Appellant appeared to be beating Boley. She
stated she witnessed Appellant pull Boley by the hair with both hands, and then yelled
for Clark to call 911. She saw Boley running away from Appellant.
{¶23} Both Clark and Keaser testified Boley was hysterical, and her nose and
mouth were bloody. Once inside Aspen Fitness, Clark locked the door of the
establishment. Keaser testified Boley was red, shaking and hyperventilating.
{¶24} Based upon the testimony of the witnesses, we find the jury did not lose its
way in finding Appellant guilty of the charge of misdemeanor assault, and Appellant's
conviction was based upon credible and competent testimony.
{¶25} The first and second assignments of error are overruled.
III. & IV.
{¶26} In the third assignment of error, Appellant argues the trial court erred in
including a provision in the sentencing entry indicating Appellant would be jailed for the
non-payment of a fine without determining at sentencing Appellant had the ability to pay
Licking County, Case No. 14-CA-105 7
the fine and including the statutory findings in a written judgment entry. In his fourth
assignment of error, Appellant maintains the trial court violated R.C. 2947.14 by
authorizing credit of $30 per day for jail time imposed for non-payment of fines when the
statute authorizes $50 per day.
{¶27} The trial court's sentencing entry states,
Judgment is hereby rendered this court for the amount of the fine
and costs imposed, and upon failure of the defendant to pay same, he
may be given a reasonable time in which to make payment. But, if the
same is not paid within the time give, the defendant is to be incarcerated
in the city/county jail until the fine is paid, receiving credit of $30 per day
for each day incarcerated toward the balance remaining on the fine. The
Clerk shall then proceed to collect the cost according to appropriate civil
procedure.
{¶28} This Court previously held in State v. Ramsey, 5th Dist. No. 13-CA-119,
2014-Ohio-4232,
Here, the trial court did not address Appellant's ability to pay at
sentencing, nor did the trial court file an entry containing findings of fact
upon which the court based its determination Appellant was able to pay
the fine.
This Court has followed the line of Ohio case law holding the
hearing requirement is not triggered until the trial court decides to
incarcerate the offender for failure to pay the fine. See, State v. Meyer 124
Ohio App.3d 373 (1997). In State v. Chaney, 5th Dist.2004CAC07057,
Licking County, Case No. 14-CA-105 8
2004–Ohio–6712, this Court held the defendant was entitled to a hearing
at the time he was brought before the court for enforcement of the fine. In
Chaney, this Court held,
“R.C. 2929.18 makes a hearing discretionary when the court initially
imposes a fine, but R.C. 2947.14 mandates a hearing held to determine
an offender's ability to pay in the event he faces incarceration due to non-
payment, see State v. Meyer (1997), 124 Ohio App.3d 373, 706 N.E.2d
378.
“In the event appellant is at some later time brought before the trial
court for failure to pay his fine and costs, he would be entitled to a hearing
as to his ability to pay. Appellant has not demonstrated any attempt to
enforce the fine and costs. An attempt to enforce a fine, costs, or any
other financial sanction will trigger due process and hearing requirements,
see, e.g. Williams v. Illinois (1970), 399 U.S. 235, 90 S.Ct. 2018, 26
L.Ed.2d 586, and Tate v. Short (1971), 401 U.S. 395, 91 S.Ct. 668, 28
L.Ed.2d 130.”
We find a trial court can impose a fine at sentencing without
conducting a hearing to determine the Appellant's ability to pay, but cannot
order the Appellant incarcerated for failure to pay the fine without
conducting the hearing required under R.C. 2947.14. As such, we reaffirm
our holding in Chaney.
Appellant was not given a hearing on his ability to pay. While the
trial court's order allows Appellant a reasonable time to make payment, it
Licking County, Case No. 14-CA-105 9
includes language ordering Appellant incarcerated if the fine is not paid.
We find this portion of the sentencing entry does not comport with the
statute. Nor does giving only $30 credit per day comport with the statue
which provides for a credit of $50 per day. Accordingly, we sustain both of
Appellant's assignments of error.
{¶29} Pursuant to this Court's previous holding in Ramsey and in State v.
Chaney, 5th Dist. 2004CAC07057, 2004-Ohio-6712, Appellant's third and fourth
assignments of error are sustained.
{¶30} Appellant's conviction is affirmed but his sentence is reversed, and the
matter remanded to the trial court for resentencing.
By: Hoffman, P.J.
Farmer, J. and
Wise, J. concur