[Cite as State v. Merillat, 2020-Ohio-3825.]




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


State of Ohio/City of Bryan                        Court of Appeals Nos. WM-19-014
                                                                         WM-19-015
        Appellee
                                                   Trial Court Nos. CRB1900416
v.                                                                  CRB1900254

Daniel G. Merillat                                 DECISION AND JUDGMENT

        Appellant                                  Decided: July 24, 2020

                                               *****

        Rhonda L. Fisher, Bryan City Attorney, for appellee.

        Anthony J. Richardson II, for appellant.

                                               *****

        PIETRYKOWSKI, J.

        {¶ 1} In this consolidated appeal, appellant, Daniel Merillat, appeals the August 7,

2019, and August 19, 2019 judgment entries of the Bryan Municipal Court, finding him

guilty in case No. CRB1900254 of criminal trespass in violation of R.C. 2911.21(A)(1), a

misdemeanor of the fourth degree, and guilty in case No. CRB1900416 of disorderly
conduct in violation of R.C. 2917.11(A)(2) and (E)(3), a misdemeanor of the fourth

degree. For the reasons that follow, we affirm, in part, and reverse, in part.

                          I. Facts and Procedural Background

       {¶ 2} The two cases in this consolidated appeal involve different facts and will be

described separately.

                    A. Case No. CRB1900254—Criminal Trespass

       {¶ 3} On April 11, 2019, appellant was charged with criminal trespass in violation

of R.C. 2911.21(A)(1) for entering his ex-girlfriend’s rental property. On May 2, 2019,

the arraignment was held, and appellant pleaded not guilty. At his arraignment, appellant

requested counsel due to his indigency, and counsel was appointed. Thereafter, a bench

trial was held on July 23, 2019.

       {¶ 4} At trial, the testimony revealed that on December 27, 2018, appellant’s ex-

girlfriend, Joni Snow, made a claim to her landlord that appellant kicked in and damaged

the door to her rental property. Following this incident, the landlord told Snow that due

to the alleged damage, appellant was no longer allowed back on the property. The

landlord also requested that the police notify appellant of his prohibition on entering

Snow’s property, which the police relayed to appellant.

       {¶ 5} Appellant and Snow have a daughter together. On April 9, 2019, appellant

had visitation with his daughter from 5:00 p.m. to 7:00 p.m., and Snow requested that the

exchange for this visitation occur at the local police station. Around the scheduled time

for the exchange, Snow sent a text to appellant explaining that she was late to drop off




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their daughter at the police station because their daughter needed to use the restroom.

Appellant then sent a text back to Snow asking if he should head over to her house, which

was only a few blocks away. Although he never got a response, appellant drove to her

house. Despite appellant being aware of the landlord not wanting appellant on the rental

property, appellant testified that he and Snow have exchanged their daughter at each

other’s houses since the incident on December 27, 2018.

       {¶ 6} In regards to the criminal trespass charge, appellant testified he only

exchanged his daughter in the street in front of the rental property. However, Snow

testified that when she came out of the restroom with their daughter, appellant was in the

home. After appellant left with their daughter, Snow reported the trespass to the police.

When appellant returned with his daughter to the police station at 7:00 p.m. for the

exchange, Officer Phillips questioned him about going to Snow’s residence. Appellant

argues that the officer was unclear in his question, and while he admitted to going to her

residence, he did not know that the officer was referring to actually going onto the

property.

       {¶ 7} After the trial, appellant was found guilty of criminal trespass. The final

judgment entry was entered on August 18, 2019, sentencing appellant to 30 days in jail,

with 25 of those days suspended, and imposing a $150 fine.

                   B. Case No. CRB1900416—Disorderly Conduct

       {¶ 8} Meanwhile, on June 11, 2019, appellant was charged with disorderly

conduct in violation of R.C. 2917.11(A)(2) and (E)(3), for “flipping off” his daughter’s




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babysitter after being warned to have no communication with her. Arraignment was held

on July 3, 2019, at which appellant pleaded not guilty. Also at the arraignment, appellant

requested appointed counsel, volunteering that counsel had been appointed in the

criminal trespass case, but that appellant now had a small job earning $12 per hour. The

court inquired where appellant was working at, and how many hours a week. When

appellant responded that he was working 40 hours per week, the trial court declared that

appellant would need to retain his own counsel. Appellant was not afforded an

opportunity to file an affidavit of indigency or list expenses.

       {¶ 9} Consequently, appellant proceeded to trial without a lawyer. Notably, the

trial court never engaged appellant in a colloquy or asked appellant to formally waive his

right to counsel. At the August 6, 2019 trial, the testimony revealed the following.

       {¶ 10} On May 23, 2019, Sheriff’s Deputy Jason Randall investigated a

harassment claim made against appellant by Charley Jaggers, Snow’s friend and the

babysitter of Snow’s and appellant’s daughter. The claim alleged that appellant had sent

“threatening” Facebook messages to her and her boyfriend, Jeffrey Sines, followed them,

and stopped at their home. As a result, appellant was warned by the sheriff’s department

to have no further contact with Jaggers.

       {¶ 11} Concerning the June 11, 2019 “flipping off” incident, Jaggers testified that

she was driving home with her daughters when she saw appellant driving in front of her.

Jaggers testified that as she parked and got her children out of the car, she saw appellant

driving back the opposite way. Jaggers used her cell phone to videotape appellant as he




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drove past, gesturing at her with his middle finger. The cell phone video was admitted as

evidence in the trial. Sines, who was standing on the porch at the time, also testified that

appellant drove past the home and flipped off Jaggers.

       {¶ 12} Finally, Sheriff’s Deputy Douglas Moser testified that on June 11, 2019, he

received a complaint regarding appellant flipping off Jaggers. Upon searching through

previous reports, Moser found that appellant previously had been warned to have no

further contact with Jaggers. Moser then reviewed the video captured by Jaggers, and

testified that it appeared as though appellant stuck his middle finger up as he passed by.

       {¶ 13} Following the state’s evidence, appellant was asked if he wished to testify

under oath and be subject to cross-examination. Appellant then took the stand. During

his rambling and disjointed testimony, appellant explained that he had not seen his

daughter for the entire month of May, and that Snow was violating court orders by

keeping his daughter from him, and now was trying to get criminal convictions on his

record for custody purposes. Appellant testified that on June 11, 2019, he was driving by

to catch a glimpse of his daughter, but he did not know that Jaggers lived there. Rather,

he only knew that he had seen Snow’s car there previously. Appellant admitted he drove

by the house for a second time, but does not recall flipping Jaggers off, explaining that

his hand was up blocking her from his sight, but further claiming that Jaggers was

flipping him off while she was yelling that she was going to call the cops.

       {¶ 14} Appellant then called Sines back to the stand. Appellant questioned Sines

about a previous encounter between himself, Sines, Jaggers, and Snow. He then briefly




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questioned Sines regarding the circumstances on June 11, 2019, such as the distance to

the road, and whether Jaggers was wearing anything that would change her appearance.

Concluding his questioning, appellant admitted that he could not afford to hire a lawyer

and did not know what he was doing, so he had no further questions.

       {¶ 15} After the presentation of the evidence, the trial court found appellant guilty,

explaining that it had no doubt that appellant flipped off Jaggers. The court sentenced

appellant to a suspended jail sentence of 30 days, and imposed costs and a $150 fine.

The court further forbade appellant from driving on the road on which Jaggers lives.

                                II. Assignments of Error

       {¶ 16} On September 4, 2019, appellant filed a pro se notice of appeal. On

October 31, 2019, this court sua sponte appointed appellate counsel and granted ten days

for an amended notice of appeal to be filed. In this consolidated appeal, appellant now

raises four assignments of error for our review:

              1. THE TRIAL COURT COMMITTED ERROR BY FAILING TO

       APPOINT COUNSEL WHERE APPELLANT, AMONG OTHERS, WAS

       UNABLE TO PAY, DID NOT WAIVE HIS RIGHT TO COUNSEL, AND

       WAS FACING IMPRISONMENT AS A SENTENCE.

              2. THE TRIAL COURT COMMITTED ERROR BECAUSE

       THERE WAS INSUFFICIENT EVIDENCE TO CONVICT APPELLANT

       OF DISORDERLY CONDUCT OR CRIMINAL TRESPASS.




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              3. THE TRIAL COURT COMMITTED ERROR BECAUSE

       APPELLANT’S CONVICTIONS FOR DISORDERLY CONDUCT AND

       CRIMINAL TRESPASS WERE AGAINST THE MANIFEST WEIGHT

       OF THE EVIDENCE.

              4. THE TRIAL COURT COMMITTED ERROR BY IMPOSING

       FINES ON APPELLANT WITHOUT FINDING HE HAD THE

       CURRENT OR FUTURE ABILITY TO PAY.

                                       III. Analysis

       {¶ 17} Because this consolidated appeal involves assignments of error that apply

to two different convictions, for ease of discussion, we will analyze each conviction and

its attendant assignments of error separately.

                    A. Case No. CRB1900254—Criminal Trespass

       {¶ 18} In appellant’s second assignment of error, he argues that his conviction for

criminal trespass is based upon insufficient evidence. “Sufficiency of the evidence is a

determination of adequacy and a court must consider whether the evidence was sufficient

to support the conviction as a matter of law.” State v. Moore, 6th Dist. Lucas No.

L-15-1211, 2016-Ohio-3506, ¶ 8, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678

N.E.2d 541 (1997). The proper analysis 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. Williams, 74 Ohio




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St.3d 569, 576, 660 N.E.2d 724 (1996), quoting State v. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492 (1991), paragraph two of the syllabus.

       {¶ 19} Here, appellant was convicted of criminal trespass in violation of R.C.

2911.21(A)(1), which provides, “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.”

Appellant argues that the evidence in this case was insufficient to establish criminal

trespass because even assuming that he entered Snow’s residence, the evidence shows

that he had frequently picked up his daughter from Snow’s residence, and that Snow

often invited him into the residence, even after the landlord expressed his desire that

appellant not be on the property. We disagree, and we find that the evidence was

sufficient to support appellant’s conviction.

       {¶ 20} In this case, Snow testified that she did not want appellant to be in her

residence, and that he had not been invited into the home. Snow also testified that she

had arranged for the drop off to occur at the police station because of previous fights and

arguments between the two. Further, appellant previously had been warned not to come

onto the property by the sheriff’s department. When viewing this evidence in a light

most favorable to the prosecution, we hold that a rational trier of fact could have found

beyond a reasonable doubt that appellant knowingly entered the premises of another

without the privilege to do so. Therefore, appellant’s conviction for criminal trespass is

not based upon insufficient evidence.




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       {¶ 21} Accordingly, appellant’s second assignment of error is not well-taken as to

case No. CRB1900254.

       {¶ 22} In his third assignment of error, appellant argues that his conviction for

criminal trespass was against the manifest weight of the evidence. “A claim that a jury

verdict is against the manifest weight of the evidence requires an appellate court to act as

a ‘thirteenth juror.’” State v. Prescott, 190 Ohio App.3d 702, 2010-Ohio-6048, 943

N.E.2d 1092, ¶ 48 (6th Dist.), citing Thompkins at 387. When reviewing a manifest

weight claim,

       [t]he court, reviewing the entire record, weighs the evidence and all

       reasonable inferences, considers the credibility of witnesses and determines

       whether in resolving conflicts in the evidence, the jury clearly lost its way

       and created such a manifest miscarriage of justice that the conviction must

       be reversed and a new trial ordered. The discretionary power to grant a

       new trial should be exercised only in the exceptional case in which the

       evidence weighs heavily against the conviction.

State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 220, quoting

Thompkins at 387.

       {¶ 23} In support of his assignment of error, appellant contends that Snow is

conspiring to remove appellant from his daughter’s life, and that she falsely testified that

he entered her residence on April 9, 2019. Appellant claims that, to the contrary, he did

not enter the residence, but remained in the roadway. Furthermore, appellant argues that




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the evidence shows that he did not knowingly enter without privilege because the parties

had historically exchanged their daughter at each other’s houses.

       {¶ 24} Ultimately, this case presents a “he said,” “she said” dispute. Snow

testified that she requested that the exchange occur at the police station because of

previous fights and arguments, that she did not invite appellant into her home on April 9,

2019, and yet appellant nonetheless did enter her home on that day. Appellant, on the

other hand, testified that he had previously been invited into the home for exchanges, that

Snow had not told him that he could not come onto the property, and that he did not even

enter the property on April 9, 2019. Upon our review of the record, we do not find either

party to be so credible, and the other so un-credible, that we can say that the trier of fact

clearly lost its way and committed a manifest miscarriage of justice. This is not the

exceptional case where the evidence weighs heavily against the conviction. Therefore,

we hold that appellant’s conviction for criminal trespass is not against the manifest

weight of the evidence.

       {¶ 25} Accordingly, appellant’s third assignment of error is not well-taken as to

case No. CRB1900254.

       {¶ 26} Finally, in his fourth assignment of error, appellant argues that the trial

court erred when it imposed fines upon him without determining that he had the current

or future ability to pay those fines. R.C. 2929.28(A)(2)(iv) authorizes the trial court to

impose a fine of not more than $250 for a misdemeanor of the fourth degree. Relevant

here, R.C. 2929.28(B) provides, “If the court determines a hearing is necessary, the court




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may hold a hearing to determine whether the offender is able to pay the financial sanction

imposed pursuant to this section or court costs or is likely in the future to be able to pay

the sanction or costs.” If the offender is determined to be unable to pay, the trial court

shall consider whether to impose community service in lieu of the fine or court costs. Id.

“Ohio courts have interpreted R.C. 2929.28(B) to mean that a hearing to determine ability

to pay is not required; however, there must, at minimum, ‘be some evidence in the record

that the court considered the defendant’s present and future ability to pay the sanction

imposed.’” State v. Rohda, 6th Dist. Fulton No. F-06-007, 2006-Ohio-6291, ¶ 15,

quoting State v. Riegsecker, 6th Dist. Fulton No. F-03-022, 2004-Ohio-3808, ¶ 11.

       {¶ 27} The docket reflects that a sentencing hearing was held in this case at 2:00

p.m. on August 14, 2019. However, a transcript of the sentencing hearing was not made

part of the record on appeal. Thus, we have no way to determine whether the trial court

inquired into appellant’s present and future ability to pay the $150 fine. “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 v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384

(1980).

       {¶ 28} Accordingly, appellant’s fourth assignment of error is not well-taken as to

case No. CRB1900254.




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                   B. Case No. CRB1900416—Disorderly Conduct

       {¶ 29} Turning to appellant’s conviction for disorderly conduct in case No.

CRB1900416, because we find the second assignment of error dispositive, we will begin

and end our analysis there.

       {¶ 30} In his second assignment of error, appellant argues that his conviction for

disorderly conduct was based upon insufficient evidence. R.C. 2917.11(A)(2) provides,

“No person shall recklessly cause inconvenience, annoyance, or alarm to another by

doing any of the following: * * * (2) Making unreasonable noise or an offensively course

utterance, gesture, or display or communicating unwarranted and grossly abusive

language to any person.”

       {¶ 31} In State v. Hoffman, 57 Ohio St.2d 129, 133, 387 N.E.2d 239 (1979), the

Ohio Supreme Court stated that “a person may not be punished under R.C. 2917.11(A)(2)

for ‘recklessly caus(ing) inconvenience, annoyance, or alarm to another,’ by making an

‘offensively coarse utterance,’ or ‘communicating unwarranted and grossly abusive

language to any person,’ unless the words spoken are likely, by their very utterance, to

inflict injury or provoke the average person to an immediate retaliatory breach of the

peace.” In reaching this conclusion, the court relied on free speech principles articulated

by the United States Supreme Court that “no matter how rude, abusive, offensive,

derisive, vulgar, insulting, crude, profane, or opprobrious spoken words may seem to be

their utterance may not be made a crime unless they are ‘fighting words.’” Id. at 131.




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       {¶ 32} In Ohio, in cases where the defendant has been convicted of disorderly

conduct for raising his or her middle finger at another, that conduct has invariably

included accompanying abusive and obscene language. See, e.g., State v. Wood, 112

Ohio App.3d 621, 628, 679 N.E.2d 735 (11th Dist.1996) (defendant “approached the

officers, provided officers the gesture of the middle finger, told the officers ‘fuck you’

and continued loud and abusive language for several minutes and the language continued

upon several requests to [desist]”); In re T.W., 3d Dist. Allen No. 1-12-16, 2012-Ohio-

5938, ¶ 24-28 (juvenile held up two middle fingers towards either the police officer or

another group of children, then “directed a stream of profane and abusive language

towards the officers, made racially charged statements such as calling them ‘white

racists,’ and made violent threats to the officers and their families”); Akron v. Lorenzo,

9th Dist. Summit No. 20475, 2001 WL 1142802, *4 (Sept. 26, 2001) (defendant

screamed “Fuck you” and “Fuck Akron police,” six or seven times, then when told to

move along “looked [the officer] in the eye, gestured with his middle finger, and yelled

‘Fuck you’”); Brook Park v. Sewell, 8th Dist. Cuyahoga No. 51449, 1987 WL 5661, *1

(Jan. 22, 1987) (defendant called officer “a mother fuckin prick and an asshole,” “used

his middle finger in an illustrative gesture,” yelled “I will stick that ticket up your ass,”

and berated the officer with obscene language approximately 20 times).

       {¶ 33} Here, in contrast, appellant’s conduct consisted solely of driving past

Jaggers’ residence and raising his middle finger towards her, or “flipping her off.” It is

not alleged that appellant yelled, cursed, shouted obscenities, or uttered any offensive




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language towards Jaggers. We find that the act of driving past someone and “flipping

him or her off” from the roadway, by itself, is insufficient to provoke the average person

to an immediate retaliatory breach of the peace. Therefore, we hold that the evidence of

appellant’s conduct in this case is insufficient to support a conviction for disorderly

conduct under R.C. 2917.11(A)(2).

       {¶ 34} Accordingly, appellant’s second assignment of error is well-taken as it

relates to case No. CRB1900416.

       {¶ 35} Furthermore, because we hold that appellant’s conviction for disorderly

conduct is based upon insufficient evidence, appellant’s remaining assignments of error

as they relate to case No. CRB1900416 are moot.

                                      IV. Conclusion

       {¶ 36} For the foregoing reasons, we find that substantial justice has not been done

the party complaining, and the judgments of the Bryan Municipal Court are affirmed, in

part, and reversed, in part. Specifically, the trial court’s judgment convicting appellant of

criminal trespass in case No. CRB1900254 is affirmed. The trial court’s judgment

convicting appellant of disorderly conduct in case No. CRB1900416 is reversed and

vacated, and the case is ordered to be dismissed. The parties are ordered to share the

costs of this appeal evenly pursuant to App.R. 24.


                                                                Judgments affirmed, in part,
                                                                      and reversed, in part.




14.
                                                               State v. Merillat
                                                               C.A. Nos. WM-19-014
                                                                         WM-19-015




       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
Christine E. Mayle, J.
                                               _______________________________
Gene A. Zmuda, P.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.supremecourt.ohio.gov/ROD/docs/.




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