[Cite as State v. Ecenbarger, 2017-Ohio-165.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Sheila G. Farmer, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 2016 CA 00133
JOHN FOSTER ECENBARGER
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Massillon
Municipal Court, Case No. 2015 CRB 02124
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: January 17, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
BETH LIGGETT DONALD GALLICK
ASSISTANT PROSECUTOR THE LAW OFFICE OF
City of Massillon Law Dept. DONALD GALLICK LLC
2 James Duncan Plaza 190 North Union Street, #102
Massillon, Ohio 44646 Akron, Ohio 44304
Stark County, Case No. 2016 CA 00133 2
Wise, J.
{¶1} Appellant John Foster Ecenbarger appeals his conviction and sentence
entered in the Massillon Municipal Court on one count of misdemeanor assault following
a jury trial.
{¶2} Appellee is the State of Ohio.
STATEMENT OF THE FACTS
{¶3} On September 21, 2015, the City of Massillon charged Appellant John
Foster Ecenbarger with one count of assault, a first-degree misdemeanor. This charge
arose out of an altercation between Appellant Ecenbarger and his neighbor Scott Hill. The
relevant facts are as follows:
{¶4} Hill was building a home at 1071 Manchester Ave., SW, adjacent to the
Appellant. (T. at 19). Prior to this incident he had never met his neighbor, the Appellant,
and did not know him. (T. at 19). Hill had a drainage pipe solely on his property that did
not reach Appellant's property. (T. at 22). On the date in question, Hill heard Appellant
mowing that area and observed that his drainage pipe had been moved. (T. at 22). Hill
went outside and repositioned the drainage pipe to where the contractor had placed it. (T.
at 24, 38). Appellant then came down the hill on his mower, jumped off, grabbed the pipe,
pulled it off of the duct tape and struck Hill in the head with it. (T. at 24). Appellant then
threw the pipe at Hill and came at him with his fists clenched. (T. at 24). Hill kept backing
up while telling Appellant to get off his property. (T. at 24). Hill then tripped over a piece
of plywood and fell backward. (T. at 24). Appellant was then on top of Hill punching and
kicking him. (T. at 24). Hill defended himself by hitting Appellant in the face while Appellant
was assaulting him. (T. at 24, 28, 34). Hill grabbed Appellant's shirt to keep from taking
Stark County, Case No. 2016 CA 00133 3
full punches. (T. at 24). A neighbor and Hill's wife intervened and ended the fight. (T. 25).
During this incident, Hill never went on Appellant's property and never made any threats
to him. (T. at 34).
{¶5} Hill sustained lumps all over the back of his head, a bruise to his chest, and
injuries on his back from where he was kicked. (T. at 29). Hill saw his doctor three days
after the incident due to having chest pain from being hit so hard. (T. at 31). Photographs
and medical records corroborated Hill's testimony. (T. at 31).
{¶6} Joan Schaefer, a neighbor of both the Appellant and victim, Scott Hill,
testified. (T. at 4). Schaefer indicated that she was looking out her glass storm door and
she saw Appellant stop mowing his yard, get off of his lawn mower, pick up a black pipe
and swing it, hitting Hill and then pushing Hill. (T. at 9-10, 15). She stated that Appellant
acted aggressively when he moved the pipe, "... the way he picked up the pipe and threw
it." (T. at 11). Schaefer testified that Hill did not make any aggressive movements towards
Appellant. (T. at 10).
{¶7} Appellant was arrested for one count of Assault against Hill.
{¶8} On September 18, 2015, the Stark County Sheriff Department arrested and
charged Appellant with one count of Assault against victim Scott Hill. Appellant entered a
not guilty plea. The parties attempted to mediate the case, but such mediation was
unsuccessful.
{¶9} The matter was set for a jury trial in Massillon Municipal Court.
{¶10} At trial, the prosecution called several witnesses in the case, including the
alleged victim, Scott Hill, and a neighbor/independent witness named Joan Schaefer
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whose testimony is set forth above. The prosecution also called a Stark County Sheriff
deputy to testify.
{¶11} Appellant also testified in his own defense.
{¶12} After considering all of the evidence, the jury convicted Appellant on the one
count of Assault. The matter was scheduled for a sentencing hearing. The Court made
certain findings on the record and sentenced Appellant to a jail term of 30 days, imposed
a fine, court costs and psychological counseling sessions.
{¶13} Appellant now appeals, raising the following errors for review:
ASSIGNMENTS OF ERROR
{¶14} “I. APPELLANT SUFFERED FROM INEFFECTIVE ASSISTANCE OF
COUNSEL AS THE AFFIRMATIVE DEFENSE OF SELF-DEFENSE WAS NOT
ASSERTED AND A CRIMINAL RULE 29 MOTION WAS NOT MADE.
{¶15} “II. THE TRIAL COURT'S MISDEMEANOR SENTENCE WAS AN ABUSE
OF DISCRETION AND RETALIATION FOR NOT RESOLVING THE CASE PRIOR TO
TRIAL.”
I.
{¶16} In his First Assignment of Error, Appellant argues that he was denied the
effective assistance of counsel. We disagree.
{¶17} In order to substantiate a claim of ineffective assistance of counsel, the
appellant must show (1) counsel's performance was deficient, and (2) the deficient
performance prejudiced the defendant so as to deprive him of a fair trial. State v. Trimble,
122 Ohio St.3d 297, 2009–Ohio–2961, 911 N.E.2d 242, ¶ 98, citing Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). When a
Stark County, Case No. 2016 CA 00133 5
convicted defendant complains of the ineffectiveness of counsel's assistance, the
defendant must show that counsel's representation fell below an objective standard of
reasonableness. Strickland at 688. Judicial scrutiny of defense counsel's performance
must be highly deferential. Id. at 689. In Ohio, there is a presumption that a properly
licensed attorney is competent. State v. Calhoun, 86 Ohio St.3d 279, 714 N.E.2d 905
(1999).
{¶18} Even assuming that counsel's performance was ineffective, the defendant
must still show that the error had an effect on the judgment. State v. Bell, 8th Dist.
Cuyahoga No. 102141, 2015–Ohio–4178, ¶ 60, citing State v. Bradley, 42 Ohio St.3d
136, 142, 538 N.E.2d 373 (1989). Reversal is warranted only where the defendant
demonstrates that there is a reasonable probability that, but for counsel's errors, the result
of the proceeding would have been different. Id.
{¶19} In the case sub judice, Appellant argues that his trial counsel was ineffective
for 1) failing to strongly assert a self-defense argument, and 2) failing to make a Crim.R.
29 motion to preserve the issue of sufficiency of the evidence.
{¶20} Initially we note that Appellant has only provided this Court with a partial
transcript.
“(B) The transcript of proceedings; duty of appellant to order;
notice to appellee if partial transcript is ordered
At the time of filing the notice of appeal the appellant, in writing, shall
order from the reporter a complete transcript or a transcript of the parts of
the proceedings not already on file as the appellant considers necessary for
inclusion in the record and file a copy of the order with the clerk. The reporter
Stark County, Case No. 2016 CA 00133 6
is the person appointed by the court to transcribe the proceedings for the
trial court whether by stenographic, phonogramic, or photographic means,
by the use of audio electronic recording devices, or by the use of video
recording systems. If there is no officially appointed reporter, App.R. 9(C)
or 9(D) may be utilized. If the appellant intends to urge on appeal that a
finding or conclusion is unsupported by the evidence or is contrary to the
weight of the evidence, the appellant shall include in the record a transcript
of all evidence relevant to the findings or conclusion.
{¶21} Appellant bears the burden of showing error by reference to matters in the
record. Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197; State v. Prince (1991),
71 Ohio App.3d 694. An appellate court can reach its decision only upon facts which are
adduced in the trial court's proceeding and cannot base its decision on allegations
founded upon facts from outside of the record. Merillat v. Fulton Cty. Bd. Of Commrs.
(1991), 73 Ohio App.3d 459.
{¶22} When portions of the transcript necessary for resolution of assigned errors
are omitted from the record, the reviewing court has nothing to pass upon and thus, as to
those assigned errors, the court has no choice but to presume the validity of the lower
court's proceedings, and affirm.” Knapp, supra.
Self-Defense
{¶23} To establish the legal defense of self-defense in Ohio, the following
elements must be shown: (1) The defendant was not at fault in creating the situation
giving rise to the affray; (2) the defendant has a bona fide belief that he was in imminent
danger of death or great bodily harm and that his only means of escape from such danger
Stark County, Case No. 2016 CA 00133 7
was in the use of such force; and (3) the defendant must not have violated any duty to
retreat or avoid the danger. State v. Jones, Stark App.Nos. 2007–CA–00041, 2007–CA–
00077, 2008–Ohio–1068, ¶ 32, citing State v. Robbins (1979), 58 Ohio St.2d 74, 388
N.E.2d 755, paragraph two of the syllabus. If the defendant fails to prove any one of these
elements by a preponderance of the evidence, then the defendant has failed to
demonstrate that he acted in self-defense. State v. Cassano (1996), Ohio St.3d 94, 107.
Crim.R. 29
{¶24} An appellate court reviews a denial of a Crim.R. 29 motion for acquittal
using the same standard used to review a sufficiency of the evidence claim. State v. Larry,
5th Dist. Holmes No. 15CA011, 2016–Ohio–829, ¶ 20 citing State v. Carter, 72 Ohio St.3d
545, 553, 651 N.E.2d 965, 1995–Ohio–104.
{¶25} The standard of review for a challenge to the sufficiency of the evidence is
set forth in State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two
of the syllabus, in which the Ohio Supreme Court held, “[a]n 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 Appellant'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.” See State v. Dowdle, 5th Dist. Stark No.
2015CA00119, 2016–Ohio–485, ¶ 16.
{¶26} Here, Appellant has only provided this Court with a partial transcript which
includes only the testimony of two witnesses: Scott Hill and Joan Schaefer.
Stark County, Case No. 2016 CA 00133 8
{¶27} As Appellant has failed to include those portions of the transcript that
include Appellant’s testimony as to what transpired or the officer’s testimony as to his
investigation, we find that Appellant cannot meet his burden as to his claim that his
counsel was ineffective for failing to more strongly argue self-defense.
{¶28} As to counsel’s alleged failure to raise a Crim.R. 29 motion, we again find
that without a complete transcript including that portion of the record where a Crim.R. 29
motion would be made, Appellant cannot show that his trial counsel was ineffective for
failing to raise same.
{¶29} We further find, even with only a partial transcript, the testimony of the
independent witness Joan Schaefer supports the conviction in this matter.
{¶30} Upon review of the partial transcript and the testimony as set forth above,
we find Appellant's First Assignment of Error not well-taken and overrule same.
II.
{¶31} In his Second Assignment of Error, appellant argues that the trial court
abused its discretion in imposing the sentence in this matter. We disagree.
{¶32} Generally, misdemeanor sentencing is within the sound discretion of the
trial court and will not be disturbed upon review if the sentence is within the limits of the
applicable statute. State v. Smith, 9th Dist. Wayne No. 05CA0006, 2006–Ohio–1558, ¶
21, citing State v. Pass, 6th Dist. Lucas No. L–92–017, 1992 WL 386011. See, also, State
v. Chadwick, 5th Dist. Knox No. 08CA15, 2009–Ohio–2472, ¶ 30. An abuse of discretion
implies the court's attitude is unreasonable, arbitrary or unconscionable. State v. Adams,
62 Ohio St.2d 151, 404 N.E.2d 144 (1980). Furthermore, there is no requirement that a
Stark County, Case No. 2016 CA 00133 9
trial court, in sentencing on misdemeanor offenses, specifically state its reasons on the
record. State v. Harpster, 5th Dist. Ashland No. 04COA061, 2005–Ohio–1046, ¶ 20.
{¶33} 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.” 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, ¶
21. In addition, R.C. 2929.21(B) states in pertinent part as follows: “A sentence imposed
for a misdemeanor * * * shall be reasonably calculated to achieve the two overriding
purposes of misdemeanor sentencing set forth in division (A) of this section,
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.”
{¶34} R.C. §2929.22 governs sentencing on misdemeanors and states as follows:
{¶35} (B)(1) In determining the appropriate sentence for a misdemeanor, the court
shall consider all of the following factors:
{¶36} (a) The nature and circumstances of the offense or offenses;
{¶37} (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
Stark County, Case No. 2016 CA 00133 10
offender's character and condition reveal a substantial risk that the offender will commit
another offense;
{¶38} (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;
{¶39} (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;
{¶40} (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;
{¶41} (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;
{¶42} (g) The offender's military service record.
{¶43} (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.
{¶44} (C) 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,
Stark County, Case No. 2016 CA 00133 11
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.
{¶45} Appellant herein cites this Court to the following statement made by the trial
court:
{¶46} “You put yourself in the position you are in now, it’s unfortunate because
the Court did everything it could to try and resolve this matter, okay, and it just didn’t
work.” (T. at 53).
{¶47} Appellant argues that his sentence imposed upon him was a result of
retaliation for not accepting a plea deal and choosing to go to trial.
{¶48} Upon review, we find no support that Appellant’s sentence was the result of
retaliation. The maximum allowable sentence for a first-degree misdemeanor is 180
days. Here, Appellant was only sentenced to 30 days in jail.
{¶49} With regard to the aforesaid statutory "overriding purposes" of
misdemeanor sentencing, the record before us demonstrates that the sentence was
designed to punish the Appellant. The trial court found that Appellant was not forthcoming
about his prior criminal convictions. (T. at 51). "You don't lie in Court ... your prior
convictions which you forgot about ... resisting arrest, disorderly conduct and domestic
violence, those aren't things you forget, okay, and you testified right from here that you
forgot about them. You were given 15 days ... it turned out the 15 days were house arrest
... Back in 2000 you were convicted of obstructing official business ... all those things you
Stark County, Case No. 2016 CA 00133 12
forgot about and you said that you never were charged with anything, never had any
crime in your life. You didn't forget, you just didn't tell the truth." (T. at 51). The trial court
also noted the long-standing problems caused in the neighborhood by this offense. (T. at
9). Additionally, the trial court considered the statements from victim advocate Ms. Jones
that Appellant was not taking responsibility for his actions and was blaming the victim for
what happened. (T. at 50).
{¶50} Based upon the Court's sentence of jail time and psychological counseling,
it appears that the trial court considered the overriding purposes by considering the
offender's conduct, and the impact of his conduct on the victim.
{¶51} Based on the foregoing, we find that the trial court did not abuse its
discretion in sentencing Appellant. The trial court's decision was not arbitrary,
unconscionable or unreasonable in view of the facts of Appellant's case.
{¶52} Appellant’s Second Assignment of Error is overruled.
{¶53} For the reasons stated in the foregoing opinion, the judgment of the
Massillon Municipal Court, Stark County, Ohio, is affirmed.
By: Wise, J.
Farmer, P. J., and
Baldwin, J., concur.
JWW/d 0106