[Cite as State v. McDonald, 2018-Ohio-3845.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                    ASHTABULA COUNTY, OHIO


 STATE OF OHIO,                                 :        OPINION

                  Plaintiff-Appellee,           :
                                                         CASE NO. 2018-A-0008
         - vs -                                 :

 MARK R. MCDONALD,                              :

                  Defendant-Appellant.          :


 Criminal Appeal from the Ashtabula Municipal Court, Case No. 2017 CRB 00864.

 Judgment: Affirmed.


 Michael Franklin, Ashtabula City Solicitor, and Lori B. Lamer, Assistant Ashtabula City
 Solicitor, Ashtabula Municipal Court, 110 West 44th Street, Ashtabula, OH 44004 (For
 Plaintiff-Appellee).

 Wesley A. Johnston, P.O. Box 6041, Youngstown, OH 44501 (For Defendant-Appellant).



TIMOTHY P. CANNON, J.

        {¶1}      Appellant, Mark R. McDonald, appeals the January 9, 2018 judgment entry

of the Ashtabula Municipal Court, convicting him of aggravated menacing and criminal

trespass. The trial court’s judgment is affirmed.

        {¶2}      On May 30, 2017, a complaint, affidavit, and summons were filed in the

Ashtabula Municipal Court, charging appellant with aggravated menacing, a first-degree

misdemeanor in violation of Ashtabula Codified Ordinance 537.05, and criminal trespass,
a fourth-degree misdemeanor in violation of Ashtabula Codified Ordinance 541.05.

Appellant entered a plea of not guilty.

       {¶3}   A bench trial was held on January 9, 2018. Appellant was represented by

counsel and testified on his own behalf. Ashtabula City Police Lieutenant Jason Erwin

testified on behalf of the city of Ashtabula. The following is a summary of the testimony

from trial.

       {¶4}   Lt. Erwin testified that on May 30, 2017, he was driving his patrol car and

observed appellant walking on the railroad tracks on West 30th Street in Ashtabula.

Appellant matched the description of a suspect involved in a theft that occurred earlier

that day, so Lt. Erwin attempted to stop appellant to identify him.

       {¶5}   Lt. Erwin also explained that the railroad does not permit anyone to walk on

its property, and he had been called to the railroad property in the past to take

enforcement action.

       {¶6}   After making unsuccessful efforts to stop appellant from his patrol car, Lt.

Erwin exited his vehicle and attempted to catch up to appellant on foot. Lt. Erwin testified

he gave several commands for appellant to stop, but appellant ignored them.

       {¶7}   When Lt. Erwin reached appellant, he put his hand on appellant’s shoulder

and told him to stop. Lt. Erwin testified appellant “flung” the duffle bag he was carrying

off his shoulder, “spun around in an aggressive fashion, and I believe his exact words

were ‘don’t f---ing run up on me like that.’” Lt. Erwin attempted to explain his reason for

stopping appellant, and in response, appellant threatened him. Lt. Erwin explained that

“[appellant] would have no conversation with me, other than to threaten me that he was

going to assault me, he was going to fight with me; that I had no reason to stop him and




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that I was simply harassing him.” Lt. Erwin further testified that appellant stated “multiple

times and in multiple phrases, that he was going to ‘beat my ass and f--- me.’”

       {¶8}    Lt. Erwin ordered appellant several times to turn around because he was

under arrest, but appellant refused and began walking away. Lt. Erwin warned appellant

that if he walked away or made an aggressive move, he would be tased. Lt. Erwin drew

his taser and ordered appellant to turn around and put his hands behind his back.

Appellant complied, and Lt. Erwin handcuffed him. After being handcuffed, appellant

“continued with his tirade, continued to threaten me, continued to say * * * that when the

handcuffs came off, that he was going to fight.” Lt. Erwin testified he believed appellant

when he said he was going to fight him.

       {¶9}    Lt. Erwin activated his lapel microphone and recorded part of appellant’s

threats at him. The recording was played for the judge. On the recording, appellant is

heard yelling. Much of the yelling is unintelligible; however, appellant is heard saying: “I’ll

snap your f-----’ little neck [and] see how you f-----’ like it[.]”

       {¶10} Appellant was ultimately ruled out as a suspect of the theft. Lt. Erwin,

however, issued appellant a citation for aggravated menacing and trespassing.

       {¶11} Lt. Erwin testified he felt threatened even when appellant attempted to walk

away from him. He affirmed that he was in fear for his personal safety during his

interaction with appellant.

       {¶12} Following Lt. Erwin’s testimony, defense counsel made a Crim.R. 29 motion

for acquittal, which the trial court denied.

       {¶13} Appellant testified that on May 30, 2017, he was cutting across the railroad

tracks on his way home from the gym. He was listening to music on his earphones while




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walking. Appellant testified that suddenly he was “spun around” by his elbow. He testified

to the following regarding the encounter: “I told him, for his own safety - - that’s now [sic]

how you conduct yourself when wanting to stop somebody. And then - - and then I told

him, yeah, okay, you have no reason to stop me. I didn’t do nothing wrong. I’m - - I’m -

- I’m literally trying to get away from him, walking away. He’s just following me, stop, blah,

blah, blah, blah. Then he pulls his Taser on me.”

       {¶14} Appellant testified he felt threatened when Lt. Erwin came up behind him.

Appellant admitted he made threats to Lt. Erwin after being handcuffed and continued

repeating those threats “[a]ll the way up till - - till they booked me * * *.” Appellant affirmed

he made the statements he was going to “f--- him up” and “beat his ass.” Appellant denied

making any threats prior to being handcuffed. Appellant further denied making any

threatening motions toward Lt. Erwin. Appellant affirmed that he did not have permission

to be on railroad property.

       {¶15} After hearing the testimony of Lt. Erwin and appellant, the trial court made

a finding of guilt based on the evidence presented and immediately proceeded to

sentencing. The city solicitor indicated appellant had multiple prior convictions from the

municipal court. The judge ordered appellant to submit to a drug screen.

       {¶16} Appellant was sentenced to 90 days in jail on the aggravated menacing

charge and 15 days in jail on the criminal trespass charge, to be served concurrently, and

was awarded 7 days of jail-time credit. The judgment entry was filed on January 9, 2018.

       {¶17} On January 16, 2018, appellant wrote a letter to the trial judge, requesting

he be released from jail.      Appellant’s request was granted, and his sentence was

suspended on the condition appellant remains law abiding for two years.




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       {¶18} Appellant noticed a timely appeal from the January 9, 2018 entry. He

asserts two assignments of error on appeal.

       {¶19} The assignments of error state:

              [1.] The trial court erred when it sentenced Appellant without
              considering the purposes and principles of misdemeanor sentencing
              contained in R.C. 2929.21 and the sentencing factors in R.C.
              2929.22.

              [2.] The evidence was insufficient to support the trial court’s verdict
              of ‘guilty’ and the Appellant’s convictions were against the manifest
              weight of the evidence.

       {¶20} Under his first assignment of error, appellant maintains the trial court failed

to make any reference to the purposes and principles of misdemeanor sentencing

contained in R.C. 2929.21 and the sentencing factors contained in R.C. 2929.22 prior to

imposing his sentence. Appellant argues the trial court erred when it sentenced him to

serve 90 days in jail because his offenses were non-violent, as he had caused no injury.

       {¶21} “‘Misdemeanor sentencing is within the discretion of the trial court and a

sentence will not be disturbed absent an abuse of discretion.’” State v. Corbissero, 11th

Dist. Ashtabula No. 2011-A-0028, 2012-Ohio-1449, ¶53, quoting Conneaut v.

Peaspanen, 11th Dist. Ashtabula No. 2004-A-0053, 2005-Ohio-4658, ¶18 (citation

omitted). An abuse of discretion is the trial court’s “failure to exercise sound, reasonable,

and legal decision-making.” State v. Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-

1900, ¶62, quoting Black’s Law Dictionary 11 (8th Ed.2004).

       {¶22} R.C. 2929.21(A) provides that a court sentencing a misdemeanor offender

“shall be guided by the overriding purposes of misdemeanor sentencing,” i.e., “to protect

the public from future crime by the offender and others and to punish the offender.” A

sentence imposed for a misdemeanor “shall be reasonably calculated to achieve the two


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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).

       {¶23} To achieve the two overriding purposes and principles of misdemeanor

sentencing, the sentencing court must consider the criteria set out in R.C. 2929.22(B).

State v. Cooper, 11th Dist. Ashtabula Nos. 2015-A-0042, 2015-A-0043, 2015-A-0044, &

2015-A-0045, 2016-Ohio-4730, ¶9. R.C. 2929.22 does not, however, mandate that the

trial court state on the record that it considered the applicable statutory factors. State v.

Kish, 11th Dist. Lake No. 2010-L-138, 2011-Ohio-4172, ¶8, citing Peaspanen, supra, at

¶29. “‘A silent record raises the presumption that the trial court considered all of the

factors[.]’” State v. Peppeard, 11th Dist. Portage No. 2008-P-0058, 2009-Ohio-1648, ¶75,

quoting Peaspanen, supra, at ¶26 (citation omitted).             Consequently, when the

misdemeanor offender’s sentence is within the statutory limits and there is no affirmative

indication on the record that the trial court failed to consider the factors set forth in R.C.

2929.22, the reviewing court is to presume the trial court considered the applicable

statutory factors when it imposed the sentence. Peaspanen, supra, at ¶18 (citation

omitted).

       {¶24} Appellant’s sentence falls within the statutory limits.              See R.C.

2929.24(A)(1) & (4) and Ashtabula Codified Ordinance 501.99(b)(2) & (5). Although the

trial court did not specifically reference R.C. 2929.21 and R.C. 2929.22 when sentencing

appellant, appellant has failed to demonstrate the record contains an affirmative showing

the trial court did not consider the factors. Consequently, the trial court is presumed to




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have considered the appropriate factors. Therefore, the trial court did not abuse its

discretion in sentencing appellant.

      {¶25} Appellant’s first assignment of error is without merit.

      {¶26} Under his second assignment of error, appellant raises issues pertaining to

both the sufficiency and manifest weight of the evidence.

      {¶27} When measuring the sufficiency of the evidence, an appellate court must

consider whether the state has presented adequate evidence on each element of the

offense to sustain the verdict as a matter of law. Kent v. Kinsey, 11th Dist. Portage No.

2003-P-0056, 2004-Ohio-4699, ¶11, citing State v. Thompkins, 78 Ohio St.3d 380, 386

(1997). “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. Jenks, 61 Ohio St.3d

259, (1991), paragraph two of the syllabus.

      {¶28} To determine whether a verdict is against the manifest weight of the

evidence, a reviewing court must consider the weight of the evidence, including the

credibility of the witnesses and all reasonable inferences, to determine whether 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, supra, at 387, quoting

State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A judgment of a trial court

should be reversed as being against the manifest weight of the evidence “‘only in the

exceptional case in which the evidence weighs heavily against the conviction.’” Id. at

387, quoting Martin, supra, at 175.




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       {¶29} We are mindful that the trier of fact is entitled to believe all, part, or none of

a witness’s testimony. State v. Williams, 11th Dist. Lake No. 2012-L-078, 2013-Ohio-

2040, ¶21 (citation omitted).     “The trier of fact is in the best position to evaluate

inconsistencies in testimony by observing the witness’s manner and demeanor on the

witness stand—attributes impossible to glean through a printed record.” Id. Therefore,

in weighing the evidence submitted at a criminal trial, an appellate court must give

substantial deference to the factfinder’s determinations of credibility. State v. Tribble, 2d

Dist. Montgomery No. 24231, 2011-Ohio-3618, ¶30.

       {¶30} Appellant was convicted of aggravated menacing, in violation of Ashtabula

Codified Ordinance 537.05, and criminal trespass, in violation of Ashtabula Codified

Ordinance 541.05.

       {¶31} Ashtabula Codified Ordinance 537.05, Aggravated Menacing, provides, in

pertinent part: “(a) No person shall knowingly cause another to believe that the offender

will cause serious physical harm to the person or property of the other person * * *.”

“‘Serious physical harm to persons’ means any of the following:

              (1) Any mental illness or condition of such gravity as would normally
              require hospitalization or prolonged psychiatric treatment;

              (2) Any physical harm that carries a substantial risk of death;

              (3) Any physical harm that involves some permanent incapacity,
              whether partial or total, or that involves some temporary, substantial
              incapacity;

              (4) Any physical harm that involves some permanent disfigurement,
              or that involves some temporary, serious disfigurement;

              (5) Any physical harm that involves acute pain of such duration as to
              result in substantial suffering, or that involves any degree of
              prolonged or intractable pain.



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Ashtabula Codified Ordinance 501.01(e).

       {¶32} Ashtabula Codified Ordinance 541.05, Criminal Trespass, provides, in

pertinent part: “(a) No person, without privilege to do so, shall do any of the following: (1)

Knowingly enter or remain on the land or premises of another[.]”

       {¶33} Appellant contends the city failed to prove the elements of aggravated

menacing beyond a reasonable doubt because the city failed to establish that Lt. Erwin

“had a reasonable belief” that appellant would cause him serious physical harm.

Appellant argues Lt. Erwin’s belief was not reasonable because appellant could not have

harmed Lt. Erwin, as he was handcuffed when he made the threats.

       {¶34} Aggravated menacing does not, however, require proof that the offender is

able to carry out his threat or that he intends to carry it out or believes himself capable of

carrying it out. State v. Charlton, 11th Dist. Trumbull No. 2006-T-0079, 2007-Ohio-2051,

¶11-12, quoting 1973 Legislative Comment, R.C. 2903.21.             Further, an aggravated

menacing conviction does not require proof that the offender threatened imminent serious

physical harm. State v. Lewis, 11th Dist. Portage No. 96-P-0272, 1997 WL 589914, *3

(Aug. 22, 1997); see also Portsmouth v. Wrage, 4th Dist. Scioto No. 08CA3237, 2009-

Ohio-3390, ¶16. “‘What is necessary to establish the crime of aggravated menacing is

the victim’s subjective belief that the defendant will cause serious physical harm. * * * [A]

person can be convicted of aggravated menacing even though the person has not made

any movement toward carrying out the threat.’” State v. Gardner, 8th Dist. Cuyahoga No.

104677, 2017-Ohio-7241, ¶21; see also, supra, at ¶21, quoting State v. Perkins, 8th Dist.

Cuyahoga No. 86685, 2006-Ohio-3678, ¶14. It is sufficient for the defendant to knowingly

cause the victim to believe he will carry his threat into execution. Id. A person acts




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knowingly when “the person is aware that the person’s conduct will probably cause a

certain result or will probably be of a certain nature.” R.C. 2901.22(B); see also Charlton,

supra, at ¶14.

       {¶35} Viewing the testimony presented at trial in a light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of

aggravated menacing proven beyond a reasonable doubt.

       {¶36} Furthermore, Lt. Erwin testified that appellant threatened him before and

after he was handcuffed. Appellant maintains Lt. Erwin’s testimony in this regard was not

credible. Although appellant offered testimony that conflicted with Lt. Erwin’s testimony,

the trial judge was permitted to determine the credibility of the witnesses. We cannot

conclude that the trier of fact clearly lost its way in finding appellant guilty of aggravated

menacing.

       {¶37} Regarding criminal trespass, appellant argues the city “presented no

evidence that the property was owned by the railroad and/or that there was any prohibition

to being on the property at the time of appellant’s arrest.” Lt. Erwin and appellant both

testified, however, that appellant was walking on the railroad tracks on the night of the

incident. Lt. Erwin testified that in the past he was called to enforce the railroad’s

prohibition of people walking on their property. Appellant affirmed he was walking on the

tracks without permission from the railroad and explained he did so in order to reduce his

commute time. Viewing this evidence in the light most favorable to the prosecution, the

trier of fact could have found the elements of criminal trespass proven beyond a

reasonable doubt. Additionally, we cannot conclude the trier of fact lost its way in finding

appellant guilty of criminal trespass.




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       {¶38} Appellant’s second assignment of error is without merit.

       {¶39} For the foregoing reasons, the judgment of the Ashtabula Municipal Court

is affirmed.



THOMAS R. WRIGHT, P.J.,

CYNTHIA WESTCOTT RICE, J.,

concur.




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