[Cite as State v. Hill, 2015-Ohio-5166.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                   :
                                                 :
          Plaintiff-Appellee                     :   C.A. CASE NO. 26581
                                                 :
 v.                                              :   T.C. NO. 14CRB920
                                                 :
 SCHUANTE M. HILL                                :   (Criminal Appeal from
                                                 :    Municipal Court)
          Defendant-Appellant                    :
                                                 :

                                            ...........

                                           OPINION

                Rendered on the ___11th___ day of ____December___, 2015.

                                            ...........

CHRISTINE L. BURK, Atty. Reg. No. 0050559, 10 North First Street, Miamisburg, Ohio
45342
      Attorney for Plaintiff-Appellee

MARIA L. RABOLD, Atty. Reg. No. 0089080, 443 E. Central Avenue, Miamisburg, Ohio
45342
      Attorney for Defendant-Appellant

                                           .............

FROELICH, P.J.

        {¶ 1} Shuante M. Hill was convicted after a bench trial in the Miamisburg Municipal

Court of assault, a first-degree misdemeanor, and disorderly conduct, a fourth-degree

misdemeanor.         Hill appeals from her convictions, claiming that they were based on

insufficient evidence and against the manifest weight of the evidence. For the following
                                                                                         -2-


reasons, the trial court’s judgment will be affirmed in part, reversed in part, and remanded

for further proceedings.

                            I. Factual and Procedural History

        {¶ 2} The State’s evidence at trial revealed the following facts.

        {¶ 3} On May 20, 2014, Hill and Reniquia Hughes were neighbors in an apartment

complex in Miami Township.        At some point during the day, Tonya Green, another

resident at the complex, saw Hill outside of Hughes’s apartment. Hill was screaming,

“Bitch, come outside. You have kids just like I do.” Green testified that Hughes was not

home.

        {¶ 4} Later that same day, in the late afternoon, the complex’s clubhouse hosted

an event for families with children starting kindergarten during which the children could

meet their principal and kindergarten teachers. Hughes attended the event with her

kindergarten-age daughter and a teenaged daughter.            At approximately 6:00 p.m.,

Hughes and her children walked back toward their apartment. Along the way, Hughes

talked with Deborah Borrero and her family, who had also attended the event. Borrero

and her children stopped at the playground, and Hughes and her children kept going.

        {¶ 5} As Hughes was in the parking lot near her apartment, Hill approached her

and asked if Hughes had complained to the office about her (Hill’s) children’s toys.

Hughes responded that she had not, but Hill “kept walking up on me.” Hughes stated

that she repeatedly stepped back and asked Hill to back up, but Hill “was aggressive.”

Hughes testified, “The more I asked her to back up, the more aggressive she got.”

Hughes asked someone to call the police.

        {¶ 6} Hughes testified that Hill struck her (Hughes’s) hand, knocking a cup out of
                                                                                              -3-


it. Hughes then struck Hill in the face, and a fight ensued. During the altercation, Hill

tripped on the curb, and she fell to the ground. Hughes fell on top of Hill, and Hughes

was unable to get up because Hill was holding onto Hughes’s hair. Hughes testified that

Hill bit her right hand, struck her, pulled her hair, and caused her earring to come out.

Several people, including Hughes’s teenaged daughter, tried to get the women apart.

Eventually, the fight was broken up. Hill went back to her apartment after the fight.

Hughes waited for the police to arrive.

       {¶ 7} At approximately 6:15 p.m., Miami Township Police Officer Scott Miller was

dispatched to the apartment complex on a report of a fight in progress. When Officer

Miller arrived, people were “just milling around.” Hughes approached him and reported

that she had been assaulted. At that point, Officers Hesler and Hupp also arrived, and

Officer Hupp took a statement from Hughes.1 Officers Miller and Hesler went to Hill’s

apartment to get a statement from her.

       {¶ 8} Officer Miller testified that he knocked on Hill’s door, and she answered it.

He could tell from scratches on her face that she had recently been in a fight. Miller had

one foot across the threshold, and he used his hip to keep the door open. Miller asked

Hill if she could get her identification. Hill responded, “Yes, I can. Step out of my

entryway and I will shut the door and go get it.” Officer Miller replied, “I will just stay right

here, just go grab your ID real quick and we will get this going.”

       {¶ 9} Hill attempted to close the door on Officer Miller and said that he could not

come into her house without a warrant. Officer Miller tried to explain that he was just


1
  The transcript spells the officers’ names as Hessler and Huff. These appear to be
typographical errors. For correctness, we will use the spellings from the police report
prepared by Officer Hesler.
                                                                                           -4-


there to investigate the fight, but Hill talked over him and yelled at him, using obscenities.

Miller stated that he “could not get a word in edgewise.” Officer Hesler then stepped in

and tried to speak with Hill; Hill “continued to scream and yell” loudly. Officer Miller

testified that there were several children in the house and behind him, and that he and

Officer Hesler had asked Hill to calm down six or seven times. Miller decided to arrest

Hill for obstructing official business and disorderly conduct. Approximately one to two

minutes elapsed between the time Officer Miller first asked for Hill’s identification and her

arrest.

          {¶ 10} Officer Miller placed Hill into his cruiser.   Hill continued to yell at the

officers, complaining that she had been arrested for getting beaten up. While in the

cruiser, she stated, “The bitch came up on me and I hit her.”

          {¶ 11} Hill was charged by complaint with assault, obstructing official business,

and disorderly conduct. Following a trial to the court, she was found guilty of assault and

disorderly conduct, but acquitted of obstructing official business. On January 29, 2015,

after a presentence investigation, the trial court orally sentenced her for the assault to (1)

180 days in jail, with 170 days suspended, conditioned on Hill’s successful completion of

one year of probation; the 10 days were to be served in two five-day increments; (2) a

$180 fine, plus court costs; (3) completion of a one-day anger management class, and

(4) one year of reporting probation. As for the disorderly conduct, the court further stated

that it was “going to impose the exact sentence I already have, and just run them

concurrent.”

          {¶ 12} The same day as sentencing, the trial court filed three signed “docket

entries” for the three charged offenses, which indicated that Hill had been found guilty of
                                                                                          -5-


assault and disorderly conduct and acquitted of obstructing official business, respectively.

The docket entry for the assault charge reflected the sentence that had been orally

imposed by the trial court. The docket entry for the disorderly conduct charge indicated

the suspended jail sentence and the imposition of a fine and court costs.

       {¶ 13} On February 2, 2015, the trial court filed an “entry and order of conviction

and sentence,” which the trial court labeled a “final appealable order.” The entry stated

that Hill had pled guilty to assault and that the trial court had dismissed the charges of

obstructing official business and disorderly conduct. The entry reflected the sentence

that had been orally imposed for the assault.

       {¶ 14} In a subsequent nunc pro tunc entry, filed May 28, 2015, the trial court

indicated that Hill had pled guilty to disorderly conduct and that the court had imposed a

$180 fine, plus court costs, and had sentenced her to 180 days in jail, with 170 days

suspended, to be served concurrently with the jail term for assault. The entry further

ordered that the jail term for disorderly conduct be corrected to 30 days in jail, with 20

days suspended.

       {¶ 15} Upon Hill’s motion, the trial court stayed Hill’s jail sentence pending appeal.

       {¶ 16} Hill appeals, raising four assignments of error.

                               II. Final Appealable Orders

       {¶ 17} Before addressing Hill’s assignments of error, it is necessary to address the

entries filed by the trial court subsequent to Hill’s sentencing hearing.

       {¶ 18} Crim.R. 32(C) provides:

       A judgment of conviction shall set forth the fact of conviction and the

       sentence.    Multiple judgments of conviction may be addressed in one
                                                                                                -6-


       judgment entry. If the defendant is found not guilty or for any other reason

       is entitled to be discharged, the court shall render judgment accordingly.

       The judge shall sign the judgment and the clerk shall enter it on the journal.

       A judgment is effective only when entered on the journal by the clerk.

In State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, the Supreme

Court of Ohio determined that a “judgment of conviction is a final order subject to appeal

under R.C. 2505.02 when it sets forth (1) the fact of the conviction, (2) the sentence, (3)

the judge’s signature, and (4) the time stamp indicating the entry upon the journal by the

clerk.” Lester, paragraph one of the syllabus.

       {¶ 19} The trial court filed three docket entries on January 29, the day of Hill’s

sentencing.    The docket entries consisted of a completed form on which the judge

indicated Hill’s initial plea, the trial court’s finding of guilty or not guilty, and the sentence,

if applicable. A caption at the top of each document indicated the case name, case

number, charge, statutory section for the charge, degree of the offense, offense date, the

complainant, and the police agency involved. The entries were signed by the trial judge

and filed with the clerk. A statement above the judge’s signature stated, “The court has

entered a finding in this matter and the defendant has been sentenced appropriately.

This has been journalized in the Miamisburg Municipal Court docket;” a handwritten date

was provided.     These docket entries satisfy Crim.R. 32(C) and are final appealable

orders.

       {¶ 20} The trial court issued a purported final judgment entry on February 2, 2015.

Because the January 29 docket entries were final appealable orders, the February 2 entry

was a legal nullity.
                                                                                       -7-


      {¶ 21} The February 2 entry erroneously stated that the disorderly conduct charge

had been dismissed, and the trial court attempted to remedy this omission in its May 28

nunc pro tunc entry. Because the February 2 entry was a legal nullity, that portion of the

May 28 entry was also a legal nullity.

      {¶ 22} The May 28 entry also attempted to correct the trial court’s unlawful

sentence (180 days) for disorderly conduct, which was a fourth-degree misdemeanor.

See R.C. 2929.24(A)(4) (maximum jail term for a misdemeanor of the fourth degree is 30

days). However, nunc pro tunc entries are used only to correct clerical errors so that the

record reflects what the court actually decided, not what it might or should have decided.

State v. Winston, 182 Ohio App.3d 306, 2009-Ohio-2171, 912 N.E.2d 655, ¶ 13-14 (2d

Dist.); Crim.R. 36. A court may not use a nunc pro tunc entry to impose a sanction

that the court did not impose as part of the sentence at sentencing. State v. Miller,

127 Ohio St.3d 407, 2010-Ohio-5705, 940 N.E.2d 924, syllabus. Assuming that the

trial court could resentence Hill while her appeal was pending, a nunc pro tunc entry was

not the proper vehicle to resentence her. See Crim.R. 43(A) (1) (requiring defendant’s

physical presence at every stage of the criminal proceeding, including the imposition of

sentence).

      {¶ 23} The final appealable orders before us are the docket entries filed on January

29, 2015.

                 III. Sufficiency and Manifest Weight of the Evidence

      {¶ 24} Hill’s first and second assignments of error claim that her conviction for

disorderly conduct was against the manifest weight of the evidence and was based on

insufficient evidence. Her third and fourth assignments of error claim that her conviction
                                                                                          -8-


for assault was against the manifest weight of the evidence and based on insufficient

evidence.

       {¶ 25} “A sufficiency of the evidence argument disputes whether the State has

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

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

No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678

N.E.2d 541 (1997). When reviewing whether the State has presented sufficient evidence

to support a conviction, the relevant inquiry is whether any rational finder of fact, after

viewing the evidence in a light most favorable to the State, could have found the essential

elements of the crime proven beyond a reasonable doubt. State v. Dennis, 79 Ohio

St.3d 421, 430, 683 N.E.2d 1096 (1997). A guilty verdict will not be disturbed on appeal

unless “reasonable minds could not reach the conclusion reached by the trier-of-fact.”

Id.

       {¶ 26} In contrast, “a weight of the evidence argument challenges the believability

of the evidence and asks which of the competing inferences suggested by the evidence

is more believable or persuasive.” Wilson at ¶ 12; see Eastley v. Volkman, 132 Ohio

St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 19 (“ ‘manifest weight of the evidence’

refers to a greater amount of credible evidence and relates to persuasion”). When

evaluating whether a conviction is against the manifest weight of the evidence, the

appellate court must review the entire record, weigh the evidence and all reasonable

inferences, consider witness credibility, and determine whether, in resolving conflicts in

the evidence, 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 at
                                                                                          -9-

387, citing State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

        {¶ 27} Because the trier of fact sees and hears the witnesses at trial, we must defer

to the factfinder’s decisions whether, and to what extent, to credit the testimony of

particular witnesses.    State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL

476684 (Aug. 22, 1997). The fact that the evidence is subject to different interpretations

does not render the conviction against the manifest weight of the evidence. Wilson at ¶

14. A judgment of conviction should be reversed as being against the manifest weight

of the evidence only in exceptional circumstances. Martin at 175.

                                         A. Assault

        {¶ 28} In her third and fourth assignments of error, Hill claims that her convictions

for assault were against the manifest weight of the evidence and based on insufficient

evidence. Hill asserts that Hughes threw the first punch and that Hill did not throw a

punch until Hughes waved her hands in Hill’s face and hit Hill’s eye. Hill further claims

that she established that she acted in self-defense.

        {¶ 29} Hughes testified that Hill approached her in an aggressive manner,

accusing Hughes of complaining to apartment management about her (Hill’s) children’s

toys. Hughes stated that she kept backing up and asking Hill to step back, but Hill “kept

walking up on me.” Hughes testified that the fight began after Hill struck Hughes’s hand,

knocking a cup out of it. According to Hughes, Hill hit her in the face, bit her, pulled her

hair, and scratched her during the fight. Hill fell down, pulling Hughes on top of her;

Hughes could not get up because Hill had Hughes’s hair. Hughes’s daughter testified

similarly at trial.

        {¶ 30} Several individuals at the complex wtinessed the verbal and physical
                                                                                          -10-


altercation between Hill and Hughes. Borrero testified that she “heard this massive

commotion” with cursing and yelling, and then she saw Hill “swing at Mrs. Hughes.”

Borrero specifically testified that Hill swung first; prior to that, it was only a verbal

altercation. Borrero further testified that every time the fight broke up, Hill went after

Hughes.

       {¶ 31} Green heard screaming and yelling from inside her apartment. When she

came outside, she saw Hughes on top of Hill and that Hill had Hughes’s hair. Green

stated that she and Hughes’s daughter tried to separate Hill and Hughes.

       {¶ 32} Hill presented two witnesses on her behalf. Angela Harrison testified that

she knew Hill from high school. On May 20, 2014, Harrison was visiting another friend

at the apartment complex where Hill lived. Harrison heard arguing in the parking lot near

her friend’s apartment and came outside. Hughes and Hill were using profanity and had

their fingers pointed at each other’s faces; Harrison believed they were about to fight.

Harrison stated that it looked like Hughes might have poked Hill in the face, and the fight

ensued. Harrison testified that she did not know who took the first swing. She stated,

“I saw them arguing and then like it was just fightin[g].”

       {¶ 33} Gerald Jernigan, a family friend of Hill, testified that he was at Hill’s

apartment on May 20, 2014, and he went outside with Hill and her daughter to confront a

neighbor. Jernigan testified that the neighbor started getting loud and putting her hands

in Hill’s face, and “then they just starting fightin[g].” Jernigan stated that the neighbor’s

daughter jumped into the fight to help her mother. Jernigan got Hill’s “male friend,” who

broke up the fight.

       {¶ 34} Hill also testified that she talked with Hughes about something that Hughes
                                                                                          -11-


supposedly did to Hill’s daughter. The conversation turned into an argument, with a lot

of gesturing by both women. Hill stated that Hughes hit her (Hill) in the face close to

Hill’s eye with her (Hughes’s) finger. After that, the women fought. Hill testified, “I pulled

her hair, she pulled mine, I hit her, she hit me.” Hill denied that Hughes ever asked her

to let go of Hughes’s hair. Hill testified that Hughes’s daughter joined the fight, and it

was eventually broken up by Hill’s friend.

       {¶ 35} Considering all of the evidence at trial, the State presented sufficient

evidence to support Hill’s conviction for assault, and Hill’s conviction was not against the

manifest weight of the evidence. The credibility of the witnesses and the weight to be

given to their testimony were matters for the judge, as the trier of fact, to determine. The

State’s evidence, if believed, supported a reasonable conclusion that Hill initiated both

the verbal and physical altercation between her and Hughes.               Although there was

conflicting evidence regarding who had started the physical altercation, we cannot say

that the trial court lost its way when it found Hill guilty of assault.

       {¶ 36} Hill’s third and fourth assignments of error are overruled.

                                       B. Disorderly Conduct

       {¶ 37} Hill’s first and second assignments of error claim that her conviction for

disorderly conduct was against the manifest weight of the evidence and based on

insufficient evidence. She argues that there was insufficient evidence to support her

conviction, because the State failed to establish that she was intoxicated. The State

responds that it was not required to prove intoxication, because Hill was charged under

R.C. 2917.11(A), which does not require proof of intoxication, and not R.C. 2917.11(B),

which does.
                                                                                        -12-


      {¶ 38} The complaint, prepared by Officer Miller, alleged that Hill violated “R.C.

2917.11” by “making unreasonable noise and offensively course utterance after being

warned to cease and desist the behavior.”          That allegation coincides with R.C.

2917.11(A)(2), which states:

      (A) No person shall recklessly cause inconvenience, annoyance, or alarm

      to another by doing any of the following: * * * (2) Making unreasonable noise

      or an offensively coarse utterance, gesture, or display or communicating

      unwarranted and grossly abusive language to any person.

In contrast, R.C. 2917.11(B)(1) provides:

      No person, while voluntarily intoxicated, shall do either of the following: (1)

      In a public place or in the presence of two or more persons, engage in

      conduct likely to be offensive or to cause inconvenience, annoyance, or

      alarm to persons of ordinary sensibilities, which conduct the offender, if the

      offender were not intoxicated, should know is likely to have that effect on

      others[.]

      {¶ 39} R.C. 2917.11(E) defines when disorderly conduct is a fourth-degree

misdemeanor, as opposed to a minor misdemeanor. Disorderly conduct is a fourth-

degree misdemeanor when the “offender persists in disorderly conduct after reasonable

warning or request to desist.” R.C. 2917.11(E)(3)(a).

      {¶ 40} Two police reports were attached to the complaint. Officer Miller’s police

report identified the disorderly conduct offense as a violation of “R.C. 2917.11A2;” the

report made no mention of intoxication.       Officer Hesler’s report indicated that Hill

appeared to be under the influence of either drugs or alcohol or both when Officer Miller
                                                                                         -13-


asked Hill for her identification. He wrote that Hill’s eyes were bloodshot and watery and

that there was “a moderate odor of an alcoholic beverage coming from her person.”

However, Officer Hesler did not file the criminal complaint, and his report did not cite the

charge against Hill.

       {¶ 41} At trial, the State did not assert that Hill had been intoxicated, and it

presented no evidence on intoxication. Officer Miller testified at trial that he knocked on

Hill’s apartment door to investigate the report of a fight. Hill answered the door, and the

scratches on her face made it obvious to the officer that Hill had been involved in an

altercation. Miller stated that he asked Hill to get her identification, and Hill became

upset when Miller would not allow her to shut the door. Officer Miller testified that Hill

claimed that he could not enter her house without a warrant and that Hill “kept yelling at

me, talking over me, so I could not get a word in edgewise.” Officer Miller stated that

Officer Hesler stepped in and tried to speak with Hill, but Hill “refused to listen to him,

continued to yell and scream.”

       {¶ 42} Officer Miller testified that Hill was loud and was yelling obscenities. He

stated that there were children “all around the place,” both in Hill’s residence and “out

behind us,” and that Hill could be heard by the children. Both Officers Miller and Hesler

asked Hill to calm down, but she would not. About one to two minutes elapsed from the

time that Miller first asked for Hill’s identification and Hill’s arrest.

       {¶ 43} Hill testified on her own behalf that, after the fight, police officers “just

walked right in my apartment” while she was changing her clothes. Hill stated that they

did not knock, and she did not answer the door. Hill stated that she asked the officers to

step outside and allow her to shut the door, but the officers refused. Hill testified that
                                                                                              -14-


she was never asked for her identification.

       {¶ 44} In closing arguments, the prosecutor argued:

       As to the disorderly conduct, there is uncontroverted evidence that the

       defendant was yelling obscenities repeatedly no less than six requests from

       the officers to stop and there were children in ear range of this and we know

       from all the witnesses of course there were children out there, there was a

       playground nearby and a kindergarten event had just out [sic].

       Understandably, they don’t deserve to be listening to that.

At the conclusion of the trial, the trial court orally found Hill guilty of disorderly conduct.

       {¶ 45} The trial court ordered and reviewed a presentence investigation report

before sentencing. The report did not indicate the statutory section under which Hill was

convicted of disorderly conduct. In fact, it indicated that Hill had been convicted of

assault and obstructing official business, not assault and disorderly conduct.              The

report’s summary of the underlying events for obstructing official business stated, in part:

“Police reported a moderate odor of an alcoholic beverage coming from the defendant’s

person when she spoke in their direction. The defendant reported[ly] kept screaming

and would not retrieve her identification.”          The presentence investigation report

referenced Officer Hesler’s police report.

       {¶ 46} The trial court’s January 29, 2015 docket entry (the final appealable

judgment entry) identified the disorderly conduct charge as “disorderly conduct M4/Intox,”

in violation of R.C. 2917.11(B)(1)(E), the voluntary intoxication subsection.               The

February 2 entry (albeit void) also identified that charge as disorderly conduct, in violation

of “R.C. 2917.11(B)(1)(e).”
                                                                                         -15-


       {¶ 47} Our review of the record reveals that Hill was charged by complaint with

disorderly conduct, in violation of R.C. 2917.11(A)(2), which does not require proof of

intoxication. The State tried her for a violation of R.C. 2917.11(A)(2), and presented

evidence to support a conviction under that provision.          Officer Miller’s testimony

constituted sufficient evidence to support a conviction under R.C. 2917.11(A)(2); the State

was not required to present proof of intoxication to support a disorderly conduct charge

under that provision.     Accordingly, we conclude that the State presented sufficient

evidence of disorderly conduct, as charged. In addition, we cannot conclude that the

trial court lost its way when it found, at the conclusion of trial, that Hill was guilty of

disorderly conduct; the trial court’s verdict was not against the manifest weight of the

evidence. Hill’s first and second assignments of error are overruled.

       {¶ 48} Despite the trial court’s oral verdict, the judgment entry indicated that Hill

was convicted of violating R.C. 2917.11(B)(1), the voluntary intoxication subsection. A

trial court speaks through its journal entries. E.g., State v. Boles, 2d Dist. Montgomery

No. 23037, 2011-Ohio-3720, ¶ 34, citing Hairston v. Seidner, 88 Ohio St.3d 57, 58, 723

N.E.2d 575 (2000). Thus, while the complaint charged a violation of R.C. 2917.11(A)(2)

and Hill was found guilty of that charge, Hill was convicted of violating R.C. 2917.11(B)(1)

in the trial court’s judgment entry.

       {¶ 49} In general, absent a negotiated plea agreement or evidence of a lesser

included offense, a defendant cannot be convicted of an offense for which he or she has

not been charged. If a judgment entry misidentifies the offense due to a clerical error,

that error may be corrected pursuant to Crim.R. 36. See, e.g., State v. Burton, 12th Dist.

Clermont No. CA2013-09-071, 2014-Ohio-1692, ¶ 14-15 (allowing correction of the
                                                                                          -16-


judgment entry where it was “apparent on the record that the reference to R.C.

2907.02(A)(1)(2) in the judgment entry on verdict was a clerical mistake”); State v. Evans,

10th Dist. Franklin No. 13AP-939, 2014-Ohio-2081, ¶ 14 (analyzing case as one for

attempted patient abuse, the offense to which defendant pled, and encouraging trial court

to “correct the clerical mistakes in the record to reflect the proper offense of which

[defendant] was convicted.”); State v. Kirk, 1st Dist. Hamilton No. C-130223, 2014-Ohio-

891 (case remanded for a nunc pro tunc entry correcting the judgment entry to reflect that

defendant pled guilty to the offense of burglary, not robbery).

       {¶ 50} Crim.R. 36 provides that “[c]lerical mistakes in judgments, orders, or other

parts of the record, and errors in the record arising from oversight or omission, may be

corrected by the court at any time.” As we stated in our discussion of nunc pro tunc

entries, “[c]lerical errors subject to correction by the court include a mistake or omission

that is mechanical in nature and apparent on the record that does not involve a legal

decision or judgment. Corrections are proper to make the record reflect what the court

actually decided and not what the court might or should have decided or what the court

intended to decide.” (Citations omitted.) Burton at ¶ 14.

       {¶ 51} In this case, it is obvious that the trial court’s judgment of conviction under

R.C. 2917.11(B)(1) was erroneous, but it is not obvious that the trial court’s statutory

reference in the judgment entry was a clerical error. The presentence investigation

report mentions Hill’s having an odor of an alcoholic beverage, and it cited Officer Hesler’s

police report (attached to the complaint), which included facts indicating that Hill was

intoxicated when Officers Hill and Hesler attempted to get identification from her at her

apartment.    It is not apparent from the record whether the trial court believed, at
                                                                                       -17-


sentencing, that Hill had been found guilty under R.C. 2917.11(A)(2) or R.C.

2917.11(B)(1).

       {¶ 52} Accordingly, Hill’s conviction for disorderly conduct in violation of R.C.

2917.11(B)(1) must be reversed, and the matter must be remanded for sentencing on

disorderly conduct, in violation of R.C. 2917.11(A)(2).

                                     III. Conclusion

       {¶ 53} The trial court’s judgment will be affirmed in part, reversed in part, and

remanded for further proceedings.      Specifically, Hill’s conviction for assault will be

affirmed, her conviction for disorderly conduct in violation of R.C. 2917.11(B)(1) will be

reversed, and the matter will be remanded for sentencing on disorderly conduct in

violation of R.C. 2917.11(A)(2).

                                        .............

FAIN, J. and HALL, J., concur.

Copies mailed to:

Christine L. Burk
Maria L. Rabold
Hon. Robert W. Rettich, III
