[Cite as Toledo v. Cook, 2016-Ohio-2975.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


State of Ohio/City of Toledo                     Court of Appeals No. L-15-1178

        Appellee                                 Trial Court No. CRB-15-04951

v.

Demonte Anthony Cook                             DECISION AND JUDGMENT

        Appellant                                Decided: May 13, 2016

                                            *****

        Kati E. Tharp, for appellant.

                                            *****

        SINGER, J.

        {¶ 1} Appellant, Demonte Cook, appeals from the judgment of the Toledo

Municipal Court convicting him of disorderly conduct and imposing a fine of $100 and

costs. For the reasons set forth below, we affirm the judgment of the trial court.

        {¶ 2} On April 6, 2015, two Toledo police officers, Officer Sprott and Officer

Babcock, were dispatched and responded to a 911 hang-up call at a house on Balfe Street,

Toledo, Lucas County, Ohio. Appellant’s girlfriend resided at the house along with her
adult daughter, adult son and appellant. Appellant’s girlfriend’s daughter and son

allowed the officers into the residence. The officers were told that appellant and his

girlfriend’s son had an argument. The officers found appellant in the bedroom sitting on

the bed, crying.

       {¶ 3} Two additional police officers arrived and entered the residence while the

first two officers talked with appellant and his girlfriend in the bedroom. Appellant

eventually started to pace in the bedroom and grabbed a lamp from the nightstand. The

additional police officers went into the bedroom. Appellant “became very aggressive and

[was] not listening to the commands” to be seated and remove his hands from the lamp,

according to Officer Babcock. Three of the officers pulled out their Tasers and used

them on appellant after appellant did not follow the officers’ directives. Appellant was

then arrested. Appellant was charged with disorderly conduct, a violation of R.C.

2917.11(A)(3).

       {¶ 4} On June 3, 2015, a bench trial was held and two of the officers who

responded on April 6, 2015 testified, as did appellant’s girlfriend. The trial court

concluded appellant was intoxicated on April 6, 2015, and persistently refused to listen to

the officers’ commands. The trial court found appellant guilty of disorderly conduct, a

fourth degree misdemeanor, pursuant to R.C. 2917.11(A)(3) and 2917.11(E)(3). The trial

court ordered appellant to pay a $100 fine and costs. Appellant appealed.

       {¶ 5} Appellant’s appointed counsel filed her request to withdraw pursuant to

Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel




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asserted she thoroughly examined the trial court’s transcript of proceedings and relevant

case law and found no meritorious assignments of error. Nevertheless, counsel has

submitted three possible assignments of error:

               1. Appellant’s conviction was based upon insufficient evidence as a

         matter of law and was against the manifest weight of the evidence.

               2. The Trial Court abused its discretion in sentencing Appellant to a

         $100 fine.

               3. Appellant received ineffective assistance of counsel.

         {¶ 6} The City of Toledo has not filed a response to appointed counsel’s Anders

brief.

         {¶ 7} The procedure to be followed by appointed counsel who desires to withdraw

for want of a meritorious, appealable issue is set forth in Anders, as well as State v.

Duncan, 57 Ohio App.2d 93, 385 N.E.2d 323 (8th Dist.1978) and State v. Stigall, 6th

Dist. Lucas No. L-14-1653, 2015-Ohio-137.

         {¶ 8} In Anders, the United States Supreme Court found if counsel, after a

conscientious examination of the case, determines it to be wholly frivolous, counsel

should so advise the court and request permission to withdraw. Anders at 744. This

request must be accompanied by a brief identifying anything in the record which could

arguably support the appeal. Id. In addition, counsel must furnish the client with a copy

of the brief and request to withdraw and allow the client sufficient time to raise any

matters the client so chooses. Id. Once these requirements have been fulfilled, the




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appellate court must conduct a full examination of the proceedings held below to decide

if the appeal is indeed frivolous. Id. If the appellate court determines the appeal is

frivolous, it may grant counsel’s request to withdraw and dismiss the appeal without

violating constitutional requirements, or it may proceed to a decision on the merits if

required by state law. Id.

       {¶ 9} Here, appointed appellant’s counsel meets the Anders requirements.

Appellant has not submitted a pro se brief and has not provided a response to counsel’s

request to withdraw. Therefore, we will evaluate the possible assignments of error that

appellant’s counsel has presented as well as the trial court record to determine whether

this appeal has any merit or is wholly frivolous.

       {¶ 10} In the first proposed assignment of error, appellant contends his conviction

was based upon insufficient evidence as a matter of law and was against the manifest of

weight of the evidence.

       {¶ 11} The standard of review for manifest weight is the same in a criminal case

as in a civil case, and an appellate court’s function is to determine whether the greater

amount of credible evidence supports the verdict. Eastley v. Volkman, 132 Ohio St.3d

328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 12; State v. Thompkins, 78 Ohio St.3d 380, 387,

678 N.E.2d 541 (1997). “A manifest weight of the evidence challenge contests the

believability of the evidence presented.” (Citation omitted.) State v. Wynder, 11th Dist.

Ashtabula No. 2001-A-0063, 2003-Ohio-5978, ¶ 23. When determining whether a

conviction is against the manifest weight, the appellate court must review the record,




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weigh the evidence and all reasonable inferences drawn from it, consider the witnesses’

credibility and decide, in resolving any conflicts in the evidence, 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.” State v. Prescott, 190 Ohio App.3d 702,

2010-Ohio-6048, 943 N.E.2d 1092, ¶ 48 (6th Dist.), citing Thompkins at 387. It has long

been held that the weight to be given to the evidence and the credibility of the witnesses

is primarily for the trier of fact to decide. State v. Thomas, 70 Ohio St.2d 79, 80, 434

N.E.2d 1356 (1992). When reviewing a manifest weight of the evidence challenge, an

appellate court sits as the “thirteenth juror.” Prescott at ¶ 48, citing Thompkins at 387.

       {¶ 12} “A sufficiency of the evidence argument challenges whether the State has

presented adequate evidence on each element of the offense to allow the case to go to the

jury or to sustain the verdict as a matter of law.” State v. Shaw, 2d Dist. Montgomery

No. 21880, 2008-Ohio-1317, ¶ 28, citing State v. Thompkins, 78 Ohio St.3d 380, 387,

678 N.E.2d 541 (1997). During a sufficiency of the evidence review, an appellate court’s

function 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, 574 N.E.2d 492 (1991), paragraph

two of the syllabus, superseded by state constitutional amendment on other grounds as

stated in State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668 (1997), fn. 4. “The relevant

inquiry is whether, after viewing the evidence in a light most favorable to the




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

proven beyond a reasonable doubt.” Jenks at paragraph two of the syllabus.

       {¶ 13} Here, appellant submits the sufficiency of the evidence and the manifest

weight of the evidence do not support the trial court’s conviction of disorderly conduct

under R.C. 2917.11(A)(3) and 2917.11(E)(3).

       {¶ 14} R.C. 2917.11(A)(3) provides that a person commits the offense of

disorderly conduct when the person “recklessly causes inconvenience, annoyance, or

alarm” towards another by “[i]nsulting, taunting, or challenging another, under

circumstances in which that conduct is likely to provoke a violent response[.]”

       {¶ 15} Pursuant to R.C. 2917.11(E)(3), a person has committed disorderly

conduct as a fourth degree misdemeanor when:

              (a) The offender persists in disorderly conduct after reasonable

       warning or request to desist.

              ***

              (c) The offense is committed in the presence of any law enforcement

       officer * * * who is engaged in the person’s duties at the scene of a fire,

       accident, disaster, riot, or emergency of any kind.

       {¶ 16} In the instant case, a review of the record reveals that on April 6, 2015,

appellant was intoxicated and engaged in disorderly conduct after the police officers who

responded to the 911 hang-up emergency call provided reasonable warnings and requests

to appellant to desist. Appellant only calmed down and listened to the police officers




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after three officers pulled out their Tasers and used them on appellant. Therefore, we

find there was sufficient evidence to support appellant’s conviction, and the conviction

was not contrary to the manifest weight of the evidence. The first possible assignment of

error is not well-taken.

       {¶ 17} In the second potential assignment of error, appellant argues the trial court

abused its discretion in sentencing appellant to pay a $100 fine.

       {¶ 18} We examine misdemeanor sentences under the abuse of discretion standard

of review. State v. Ostrander, 6th Dist. Fulton No. F-10-011, 2011-Ohio-3495, ¶ 28.

When a trial court imposes a sentence pursuant to a misdemeanor conviction, the trial

court shall examine the “purposes and principles” of R.C. 2929.21 and “sentencing

factors” under R.C. 2929.22. Id. When a misdemeanor sentence is imposed within the

statutory limits, a reviewing court will presume the trial judge followed the statutes,

unless there is evidence to the contrary. Toledo v. Reasonover, 5 Ohio St.2d 22, 213

N.E.2d 179 (1965), paragraph one of the syllabus; State v. Townsend, 6th Dist. Lucas No.

L-01-1441, 2002-Ohio-4077, ¶ 6.

       {¶ 19} Here, the record shows when the trial court imposed sentence, the court

examined appellant’s past record of non-serious offenses and considered the two

responding police officers’ and appellant’s girlfriend’s testimony about the incident,

appellant’s mental health, appellant’s girlfriend’s safety and appellant’s church

attendance. Thus, the trial court satisfied the factors pursuant to R.C. 2929.21 and

2929.22. In addition, the court’s imposition of a $100 fine is within the statutory limits,




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as a fourth-degree misdemeanor is punishable by up to thirty days incarceration and a

$250 fine. See R.C. 2929.21. Thus, the trial court did not abuse its discretion in ordering

appellant to pay a fine of $100. Accordingly, the second possible assignment of error is

not well-taken.

       {¶ 20} In the third potential assignment of error, appellant contends his appointed

trial counsel was ineffective.

       {¶ 21} Appellant bears the burden of proving his counsel was ineffective since an

attorney is presumed competent. Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984), and State v. Lott, 51 Ohio St.3d 160, 174, 555 N.E.2d 293

(1990). To meet this burden, appellant must show: (1) there was a substantial violation

of the attorney’s duty to his client, and (2) the defense was prejudiced by the attorney’s

actions or breach of duty. Strickland, supra, at 687-689, and State v. Smith, 17 Ohio

St.3d 98, 100, 477 N.E.2d 1128 (1985). Prejudice is shown where there is a reasonable

probability that a different result would have occurred if the attorney had not erred. State

v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88, ¶ 108, quoting State v.

Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph three of the syllabus.

       {¶ 22} Here, a review of the record shows appellant’s trial counsel cross-examined

the state’s witnesses and called a witness on appellant’s behalf, appellant’s girlfriend.

Trial counsel advocated for appellant in front of the trial court. There is no evidence in

the record that counsel’s representation of appellant was inadequate or ineffective. The

third proposed assignment of error is not well-taken.




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       {¶ 23} We have an obligation to fully examine the record to determine whether an

appeal would be frivolous. Anders, 386 U.S. at 744, 87 S.Ct. 1396, 18 L.Ed.2d 493. Our

review of the record, including the transcript of appellant’s bench trial and sentencing,

does not disclose any errors by the trial court which would justify a reversal of the

judgment. We therefore find this appeal to be wholly frivolous, and counsel’s request to

withdraw is found well-taken and is granted.

       {¶ 24} The judgment of the Toledo Municipal Court is affirmed. Costs of the

appeal are assessed to appellant pursuant to App.R. 24. The clerk is ordered to serve all

parties with notice of this decision.

                                                                        Judgment affirmed.



       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                        _______________________________
                                                            JUDGE
Arlene Singer, J.
                                                _______________________________
Stephen A. Yarbrough, J.                                    JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.



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