[Cite as State v. Dendinger, 2019-Ohio-2158.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               SENECA COUNTY




STATE OF OHIO,
                                                          CASE NO. 13-18-38
       PLAINTIFF-APPELLEE,

       v.

RHONDA M. DENDINGER,                                      OPINION

       DEFENDANT-APPELLANT.



                     Appeal from Tiffin-Fostoria Municipal Court
                            Trial Court No. CRB 1800979

                                      Judgment Affirmed

                              Date of Decision: June 3, 2019



APPEARANCES:

        Edwin M. Bibler for Appellant

        Richard H. Palau for Appellee
Case No. 13-18-38



WILLAMOWSKI, J.

       {¶1} Defendant-appellant Rhonda M. Dendinger (“Dendinger”) appeals the

judgment of the Tiffin-Fostoria Municipal Court, alleging that her conviction was

not supported by sufficient evidence and was against the manifest weight of the

evidence. Further, Dendinger claims that trial judge was biased against her attorney.

For the reasons set forth below, the judgment of the trial court is affirmed.

                           Facts and Procedural History

       {¶2} Nathan Miller (“Miller”) is married to Dendinger’s daughter, Kelsey

Dendinger (“Kelsey”). Tr. 11, 24. At the time of the incident forming the basis of

this case, Miller and Kelsey were in the midst of a divorce proceeding, but both of

them still lived in their marital residence. Tr. 12-13, 25. During this time, Kelsey

would sleep in a bedroom while Miller would sleep on the couch. Tr. 13. Kelsey

had been locking her bedroom door, alleging that Miller had been recording her

while she slept. Tr. 13. Miller stated, at trial, that he needed access to the bedroom

to shower, obtain his clothes, and care for his infant son. Tr. 14, 16-17. At some

point, Kelsey left the key to the bedroom in the door. Tr. 14. Miller took the key

and kept it, “so that nobody could be locked out of the bedroom.” Tr. 9.

       {¶3} On July 31, 2018, Kelsey called Dendinger and asked her to come to

the house, saying, at trial, that she wanted her mother’s “support.” Tr. 25-26.

Dendinger then drove to her daughter’s house. Tr. 31. When she arrived, Dendinger


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went inside the house, spoke to her daughter about the key, and then approached

Miller. Tr. 31. Dendinger said, “Nate, just give her back the key.” Tr. 32. After

Miller denied having the key, Dendinger testified that she “reached to the outer edge

of the lower pocket [of Miller’s shorts] * * * to see if the key was in there.” Tr. 32.

Miller told Dendinger not to touch him. Tr. 10, 33. At this point, Miller and Kelsey

began to have an argument, and Dendinger left the room to get Miller and Kelsey’s

infant son. Tr. 33.

       {¶4} Miller testified that Dendinger returned and “started * * * patting [his]

pockets, trying to get in [his] pockets again.” Tr. 11. Miller then went outside and

called the police. Tr. 11. Deputy Troy Callahan (“Deputy Callahan”) responded to

this call. Tr. 19. After speaking with Miller, Kelsey, and Dendinger, he issued a

citation to Dendinger for disorderly conduct in violation of R.C. 2917.11(A)(5).

Doc. 1. Tr. 19. This offense is a minor misdemeanor. Doc. 1.

       {¶5} A bench trial was held on October 29, 2018. Tr. 1. Miller, Kelsey,

Dendinger, and Deputy Callahan testified before the trial court. At the close of the

State’s case-in-chief, the Defense made a Crim.R. 29 motion, alleging that the State

did not produce sufficient evidence to support a conviction. Tr. 22. The trial court

denied this motion. Tr. 24. During closing arguments, the Defense argued that

Dendinger’s actions were not physically offensive. Tr. 40-41. In rebuttal, the

prosecutor stated, “I’ll keep it short Your Honor. Just the fact that the man’s house

is not his castle, surely his pants are his castle.” Tr. 41. The trial court then found

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Dendinger guilty and ordered her to pay a fine of $100.00 plus court costs. Tr. 43-

44.

      {¶6} Appellant filed her notice of appeal on November 26, 2018. Doc. 18.

On appeal, appellant raises the following assignments of error:

                           First Assignment of Error

      There was insufficient evidence to convict the defendant-
      appellant of Disorderly Conduct pursuant to R.C. 2917.11(A)(5),
      as the State of Ohio failed to prove beyond a reasonable doubt
      that the defendant-appellant acted recklessly, that her conduct
      was physically offensive and that she had no lawful reasonable
      purpose.

                          Second Assignment of Error

      The trial court erred and the defendant-appellant’s conviction of
      disorderly conduct was against the manifest weight of the
      evidence as the State of Ohio failed to prove beyond a reasonable
      doubt that the defendant-appellant acted recklessly, that her
      conduct was physically offensive and that she had no lawful and
      reasonable purpose.

                           Third Assignment of Error

      The court clearly showed bias toward Defendant-Appellant’s
      attorney by (1) inappropriate comments made during trial and (2)
      directing the court’s closing colloquy directly to the Attorney for
      the defendant, showing the Defendant-Appellant received an
      unfair trial.

                            First Assignment of Error

      {¶7} Dendinger argues that her conviction for disorderly conduct is not

supported by sufficient evidence because (1) her actions did not “recklessly cause

inconvenience, annoyance, or alarm to another” and (2) her actions did not “create

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a condition that is physically offensive to persons or that presents a risk of physical

harm.” R.C. 2917.11(A)(5).

                                   Legal Standard

       {¶8} A challenge to the sufficiency of the evidence supporting a conviction

“is a question of law and a ‘test of adequacy rather than credibility or weight of the

evidence.’” State v. Beaver, 3d Dist. Marion No. 9-17-37, 2018-Ohio-2438, ¶ 40,

quoting State v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19. “The

sufficiency-of-the-evidence analysis addresses the question of whether adequate

evidence was produced for the case to be considered by the trier of fact and, thus,

whether the evidence was ‘legally sufficient to support the verdict * * *.’” State v.

Luebrecht, 3d Dist. Putnam No. 12-18-02, 2019-Ohio-1573, ¶ 36, quoting State v.

Worthington, 3d Dist. Hardin No. 6-15-04, 2016-Ohio-530, ¶ 12. On appeal, the

applicable standard

       is whether, after viewing the evidence in the light most favorable
       to the prosecution, any rational trier of fact could have found that
       the essential elements of the crime were proven beyond a
       reasonable doubt.

State v. Brown, 3d Dist. Hancock No. 5-17-19, 2018-Ohio-899, ¶ 8, quoting State

v. Plott, 2017-Ohio-38, 80 N.E.3d 1108, ¶ 73 (3d Dist.).

       {¶9} In order to prove a defendant committed the offense of disorderly

conduct in violation of R.C. 2917.11(A)(5), the State must establish that the

defendant “[1] recklessly [2] cause[d] inconvenience, annoyance, or alarm to


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another by * * * [3] [c]reating a condition that is physically offensive to persons or

that presents a risk of physical harm to persons or property, by any act that serves

no lawful and reasonable purpose of the offender. R.C. 2917.11(A)(5). “A person

acts recklessly when, with heedless indifference to the consequences, the person

disregards a substantial and unjustifiable risk that the person’s conduct is likely to

cause a certain result or is likely to be of a certain nature.” R.C. 2901.22(C).

                                          Legal Analysis

        {¶10} As to the first element, Miller’s testimony provides some evidence that

Dendinger acted with the requisite mental state. On appeal, Dendinger argues that

the trial court erred by applying an objective, reasonable person standard to her

conduct and asserts that she “had no advanced inkling that her conduct could

possibly cause Mr. Miller inconvenience, annoyance or alarm.” Appellant’s Brief,

7-8. For two reasons, we find this argument to be without merit. First, Ohio case

law indicates that an objective, reasonable person standard is applicable in this

analysis. See State v. Glenn, 1st Dist. Hamilton No. C-030356, 2004-Ohio-1489, ¶

25; State v. Blair, 2d Dist. Montgomery No. 24784, 2012-Ohio-1847, ¶ 9; State v.

Lamm, 80 Ohio App.3d 510, 609 N.E.2d 1286 (4th Dist.); Warrensville Heights v.

Brown, 8th Dist. Cuyahoga No. 89346, 2008-Ohio-126, ¶ 14; State v. Wiley, 11th

Dist. Portage No. 2013-P-0067, 2014-Ohio-5766, ¶ 19-20.1 Second, the evidence


1
 In Glenn, Blair, Brown, and Wiley, the defendant was charged with a violation of R.C. 2917.11(A)(2).
Glenn, supra, at ¶ 24. However, the element of recklessly causing inconvenience, annoyance, or alarm is
common to all of the offenses listed under R.C. 2917.11(A). Id.

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in the record indicates that Dendinger was aware that her actions were likely to

cause Miller to be inconvenienced or annoyed.

         {¶11} At trial, Miller testified that Dendinger reached into his pockets two

times. Tr. 10-11. He told her to stop the first time she reached inside his pockets,

but, five minutes later, she reached inside his pockets again. Tr. 10-11. Thus,

regardless of whether Dendinger should have been aware that reaching into her son-

in-law’s pockets was inappropriate before she did so the first time, she was aware

that such conduct was inappropriate before she reached into his pockets the second

time because Miller had previously told her not to do this. Tr. 10-11. Based on this

testimony, there was some evidence that Dendinger reached into Miller’s pockets

with “heedless indifference to the consequences” of this action. R.C. 2901.22(C).

See State v. Bailey, 1st Dist. Hamilton No. C-010641, 2002-Ohio-3133, ¶ 31.2

         {¶12} As to the second element, Miller’s testimony also indicates that

Dendinger engaged in behavior that could cause a reasonable person to be

inconvenienced or annoyed. Miller testified that, in addition to having sensitive

areas of his body touched, Dendinger was also pushing down in his pockets so hard

that his shorts were sliding down his legs so that his boxers were visible. Tr. 10-11.

He also stated that he had told Dendinger to stop reaching into his pockets more




2
 In this case, the defendant was charged with persistent disorderly conduct. Bailey, supra, at ¶ 38. However,
Bailey remains instructive as the elements of recklessness, inconvenience and annoyance, and physical
offensiveness are the same.

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than once and “tried to get away from her.” Tr. 10. He testified that he then left his

house to avoid Dendinger and called the police. Tr. 10-11.

         {¶13} As to the third element, his statements also indicate that these actions

were “physically offensive” as his mother-in-law was, according to his testimony,

reaching into his pockets and feeling around sensitive areas. He further said that

this gave him an “[e]xtremely uncomfortable feeling,” explaining that “she was

reaching in my pockets on the side. She was touching me where I don’t want to be

touched. And she felt right by my crotch area * * *.” Tr. 10. See Village of New

Lebanon v. Cobb, 2d Dist. Montgomery No. 11026, 1989 WL 52887, *3 (May 19,

1989).

         {¶14} Further, Miller’s testimony also indicates that Dendinger was reaching

into his pockets while he was standing in his own house to obtain a key that went to

a bedroom door in his house. Kelsey’s invitation authorized Dendinger to be in

Miller and Kelsey’s house. See State v. Berry, 3d Dist. Hancock No. 5-16-16, 2017-

Ohio-1490, ¶ 22-23. However, the fact that Kelsey invited her mother to intervene

in a marital dispute did not give Dendinger the right to reach into Miller’s pockets.

Under these circumstances, a reasonable trier of fact could determine that

Dendinger’s actions did not further a lawful or reasonable purpose.

         {¶15} Thus, Miller’s testimony, if believed, sufficiently substantiates the

essential elements for the offense of disorderly conduct in violation of R.C.

2917.11(A)(5). After reviewing the evidence in a light most favorable to the

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prosecution, we conclude that the State introduced sufficient evidence from which

a reasonable trier of fact could find the defendant to be guilty of the minor

misdemeanor of disorderly conduct. For this reason, Dendinger’s first assignment

of error is overruled.

                            Second Assignment of Error

       {¶16} Dendinger reiterates her arguments from her first assignment of error

to assert that her conviction is against the manifest weight of the evidence.

                                   Legal Standard

       {¶17} In a manifest weight analysis, “an appellate court’s function * * * is to

determine whether the greater amount of credible evidence supports the verdict.”

Plott, supra, at ¶ 73. Thus, “the appellate court sits as a ‘thirteenth juror’ * * *.”

State v. Davis, 3d Dist. Seneca No. 13-16-30, 2017-Ohio-2916, ¶ 17, quoting State

v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). Appellate courts

       must review the entire record, weigh the evidence and all of the
       reasonable inferences, consider the credibility of witnesses, and
       determine whether in resolving conflicts in the evidence, the
       factfinder ‘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. Brentlinger, 2017-Ohio-2588, 90 N.E.3d 200, ¶ 36 (3d Dist.), quoting

Thompkins at 387.

       {¶18} “A reviewing court must, however, allow the trier of fact appropriate

discretion on matters relating to the weight of the evidence and the credibility of the


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witnesses.” State v. Sullivan, 2017-Ohio-8937, 102 N.E.3d 86, ¶ 38 (3d Dist.),

quoting State v. Coleman, 3d Dist. Allen No. 1-13-53, 2014-Ohio-5320, ¶ 7. “[I]t

is well established that the * * * credibility of the witnesses [is] primarily a matter

for the trier of fact.” State v. Gervin, 2016-Ohio-8399, 79 N.E.3d 59, ¶ 142 (3d

Dist.), quoting State v. Clark, 101 Ohio App.3d 389, 409, 655 N.E.2d 795 (8th Dist.

1995). “Only in exceptional cases, where the evidence ‘weighs heavily against the

conviction,’ should an appellate court overturn the trial court’s judgment.” State v.

Little, 2016-Ohio-8398, 78 N.E.3d 323, ¶ 27 (3d Dist.), quoting State v. Hunter, 131

Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 119.

                                   Legal Analysis

       {¶19} We herein reincorporate the evidence examined under the first

assignment of error and proceed to consider the evidence presented by the Defense.

In this case, Dendinger testified about the incident, saying:

       I’m standing beside him, and all I did was reach over to the
       bottom part of the pant to—and like felt like this to see if I could
       feel for the key. It was supposed to be in the short pocket, in the
       outer pocket. At that time he’s like—don’t touch my pocket,
       don’t touch my pocket, and pulled away.

Tr. 33. However, she stated that she “did not at any time put [her] hand inside his

pocket.” Tr. 34. She then added that she “never, at any time, got near [Miller’s]

crotch area or anything.” Tr. 35. On cross-examination, the prosecutor asked

Dendinger what gave her the right to try to take this key. She stated: “I was trying



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to prevent further problems with [Kelsey] and her husband.” Tr. 37. She further

admitted that she did not live at Miller’s house. Tr. 36.

       {¶20} Deputy Callahan testified that Dendinger, on the day of the incident,

indicated that “[s]he didn’t hurt him * * *. She was just trying to get the key.”

Dendinger also told Callahan that “she had grabbed [Miller’s] pants pockets.”

When asked whether Miller had indicated that Dendinger had reached into his

pockets, Callahan stated: “I didn’t write it in my report, so therefore I’d say no.” Tr.

21. Kelsey testified that she had invited her mother to come to the house because

she “wanted her to be there for support and witness.” Tr. 25. Kelsey, however, did

not see her mother patting Miller’s pants as Kelsey stated that she was in the

bedroom at the time of the incident. Tr. 26, 28-29.

       {¶21} In this case, the testimony of Dendinger and Miller are in conflict.

However, “[t]he choice between credible witnesses and their conflicting testimony

rests solely with the finder of fact and an appellate court may not substitute its own

judgment for that of the finder of fact.” State v. Awan, 22 Ohio St.3d 120, 124, 489

N.E.2d 277 (1986). After reviewing the record, we conclude that this is not the

exceptional case where the evidence weighs heavily against Dendinger’s

conviction. Thus, this conviction is not against the manifest weight of the evidence.

For this reason, Dendinger’s second assignment of error is overruled.




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                              Third Assignment of Error

       {¶22} Dendinger argues that the trial judge was biased against the Defense

and that she did not, therefore, receive a fair trial.

                                     Legal Standard

       {¶23} “[A] criminal trial before a biased judge is fundamentally unfair and

denies a defendant due process of law.” In re Disqualification of Zmuda, 149 Ohio

St.3d 1241, 2017-Ohio-317, 75 N.E.3d 1255, ¶ 11, quoting State v. LaMar, 95 Ohio

St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 34.

       Judicial bias has been described by the Supreme Court of Ohio as
       “a hostile feeling or spirit of ill will or undue friendship or
       favoritism toward one of the litigants or his attorney, with the
       formation of a fixed anticipatory judgment on the part of the
       judge, as contradistinguished from an open state of mind which
       will be governed by the law and the facts.” State ex rel. Pratt v.
       Weygandt, 164 Ohio St. 463 [132 N.E.2d 191] (1956), paragraph
       four of the syllabus. However, “[a] judge is presumed to follow the
       law and not to be biased, and the appearance of bias or prejudice
       must be compelling to overcome these presumptions.” In re
       Disqualification of George, 100 Ohio St.3d 1241, 2003-Ohio-5489,
       [798 N.E.2d 23] ¶ 5. (Citations omitted.)

State v. Wieser, 3d Dist. Allen No. 1-18-15, 2018-Ohio-3619, ¶ 23. “Judicial bias

exists if it is directed toward counsel. Indeed, ‘the judge who is so hostile to a

lawyer as to doom the client to defeat deprives the client of the right to an impartial

tribunal.’” State v. Dean, 127 Ohio St.3d 140, 2010-Ohio-5070, 937 N.E.2d 97, ¶

65, quoting Walberg v. Israel, 766 F.2d 1071, 1077 (C.A.7, 1985).




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       {¶24} However, “[s]harp words spoken by a trial court to counsel do not by

themselves establish impermissible bias. There is a ‘modicum of quick temper that

must be allowed even judges.’” State v. Sanders, 92 Ohio St.3d 245, 278, 750

N.E.2d 90 (2001), quoting United States v. Donato, 99 F.3d 426, 434 (C.A.D.C.

1996), quoting Offutt v. United States, 348 U.S. 11, 17, 75 S.Ct. 11, 99 L.Ed. 11

(1954). Even a “rebuke” issued by a trial judge from the bench is not necessarily

evidence of judicial bias. Id.

                                   Legal Analysis

       {¶25} On appeal, Dendinger identifies two instances that allegedly indicate

that the trial judge was biased against her attorney, Rocky Ratliff (“Ratliff”). First,

Dendinger points to the following colloquy:

       [Prosecutor]: I’m gonna object as to leading again.

       [Trial Judge]: Is this like Marion County direct examination?
       Just kind of curious—

       [Ratliff]: I don’t see the problem as to asking her—

       [Trial Judge]: Objection Sustained.

Tr. 26-27. During the course of the trial, the prosecution objected to the Defense’s

use of leading questions at least four times. Tr. 26, 27, 33. After one of these

objections, the trial judge advised defense counsel to “be careful about your

examination.” Tr. 33. In these comments, the trial court seems to be addressing




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defense counsel’s repeated use of leading questions. However, these statements do

not indicate that the trial judge was hostile to the interests of the Defense.

       {¶26} Second, the trial judge, at the beginning of issuing his ruling, made the

following statement:

       All right. Mr. Ratliff, I’m gonna address most of my comments
       to you, because I think you’re the one that I want to make sure
       that I get the point across to.

       When we have this series of events that we’ve dealt with in the
       past, I try to be very sensitive when couples are going through
       divorce proceedings, because I realize over the years that there
       can be a lot of shenanigans that go on with people doing all kinds
       of things. In the 16 years that I’ve been a Judge, and in the 15
       years as a prosecutor before that, I’ve seen a lot of—what I would
       consider to be reasonable people doing unreasonable things * * *.

Tr. 41-42. In context, the trial judge, in these comments, appears to be explaining

his rationale to the defense counsel, who was not from the county and was possibly

unfamiliar with the trial judge’s practices. Defense counsel would be the person

who would need to understand this rationale in order to clarify any of his client’s

points of confusion with the trial court’s decision. Further, Dendinger has not

demonstrated how this comment amounts to evidence of bias or hostility.

       {¶27} The two comments identified on appeal do not indicate that the trial

judge had “a hostile feeling or spirit of ill will or undue friendship * * * toward”

Dendinger or her attorney. Wieser, supra, at ¶ 23, quoting Pratt, supra, at paragraph

four of the syllabus. Further, we also note that this was a bench trial and that no

jurors, therefore, could have been influenced by these statements. See State v. Sayre,

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3d Dist. Marion No. 9-12-25, 2013-Ohio-4108, ¶ 16 (holding that a “trial court must

be careful as to any comments it makes that may have an effect upon the jury.”).

Dendinger has not carried the burden of establishing that the trial judge was biased

against her or her attorney in this particular case. For this reason, her third

assignment of error is overruled.

                                    Conclusion

       {¶28} Having found no error prejudicial to the appellant in the particulars

assigned and argued, the judgment of Tiffin-Fostoria Municipal Court is affirmed.

                                                               Judgment Affirmed

ZIMMERMAN, P.J. and PRESTON, J., concur.

/hls




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