[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
Stark County, Case No. 2016 CA 00133                                                      4


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
