[Cite as State v. Sherman, 2015-Ohio-3514.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

STATE OF OHIO                                    JUDGES:
                                                 Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                       Hon. Sheila G. Farmer, J.
                                                 Hon. John W. Wise, J.
-vs-
                                                 Case No. 14-CA-105
AUBREY SHERMAN

        Defendant-Appellant                      OPINION




CHARACTER OF PROCEEDING:                      Appeal from the Licking County Municipal
                                              Court, Case No. 14CRB00263


JUDGMENT:                                     Affirmed in part, Reversed in part, and
                                              Remanded for resentencing


DATE OF JUDGMENT ENTRY:                       August 27, 2015


APPEARANCES:


For Plaintiff-Appellee                        For Defendant-Appellant


AMY S. DAVISON                                WILLIAM T. CRAMER
40 West Main Street                           470 Olde Worthington Road, Suite 200
Newark, Ohio 43055                            Westerville, Ohio 43082
Licking County, Case No. 14-CA-105                                                     2

Hoffman, P.J.


       {¶1}   Defendant-appellant Aubrey Sherman appeals his conviction and

sentence for assault entered by the Licking County Municipal Court. Plaintiff-appellee is

the state of Ohio.

                          STATEMENT OF THE FACTS AND CASE

       {¶2}   On February 10, 2015, Sierra Clark was working at Aspen Fitness. She

noticed a black SUV parked in the middle of the parking lot. The car was parked in a

diagonal position, which Clark thought strange due to the small number of cars in the

parking lot. Clark recognized the car as belonging to Jessica Boley, a regular customer

of Aspen Fitness.

       {¶3}   As Clark observed the car, she noticed Appellant exit the driver's side of

the vehicle, and walk around to the passenger side of the vehicle. Clark then saw

Appellant hit Boley in the face and body with his fist. After Appellant stuck her a few

times, Boley fell to the ground. Appellant then kicked Boley in the stomach and legs.

When Boley tried to stand, Appellant grabbed her by the hair, pulled her up and pushed

her against the car.

       {¶4}   Valerie Keaser, who was exercising at Aspen Fitness, also observed

Appellant and Boley struggling in the parking lot. She noted Appellant appeared to be

beating Boley, so Keaser yelled to Clark to call 9-1-1. Keaser saw Boley on the ground

next to the passenger door of the car, and Sherman was pulling her by the hair with

both hands. Keaser observed Appellant kick Boley once and could hear her screaming.

       {¶5}   Boley attempted to seek help from a driver in a nearby car, but the

individual would not assist her. Clark and Keaser then yelled for her to come into Aspen
Licking County, Case No. 14-CA-105                                                         3


Fitness. Boley went into Aspen Fitness hysterical, with a bloody nose and mouth. Clark

locked the door behind her. Appellant did not try to come into Aspen Fitness and did

not make any threats.

       {¶6}   When the police responded, Boley told the investigating officers she had

fallen on the ice in the parking lot. She stated she did not know what happened after

she was pulled out of the car. She did not want to pursue charges and refused to write

a statement. Additionally, she refused to seek medical treatment.

       {¶7}   As a result of the incident, Appellant was charged with misdemeanor

assault, in violation of R.C. 2903.13(A). The matter proceeded to a jury trial, wherein

Boley testified for the defense. The jury found Appellant guilty of the charge, and the

trial court sentenced him to 90 days in jail, with 33 days of jail credit, imposing a fine of

$300 and court costs.

       {¶8}   Appellant appeals, assigning as error:

       {¶9}   "I. APPELLANT'S RIGHTS TO DUE PROCESS UNDER THE STATE

AND FEDERAL CONSTITUTIONS WERE VIOLATED BECAUSE HIS CONVICTION

FOR ASSAULT WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE.

       {¶10} "II. THE CONVICTION FOR ASSAULT WAS NOT SUPPORTED BY THE

WEIGHT OF THE EVIDENCE.

       {¶11} "III. THE TRIAL COURT VIOLATED R.C. 2947.14 BY INCLUDING A

PROVISION IN THE SENTENCING ENTRY INDICATING THAT APPELLANT WOULD

BE JAILED FOR NON-PAYMENT OF A FINE WITHOUT DETERMINING AT

SENTENCING THAT APPELLANT HAD THE ABILITY TO PAY THE FINE AND

INCLUDING THE STATUTORY FINDINGS IN A WRITTEN JUDGMENT ENTRY.
Licking County, Case No. 14-CA-105                                                         4


       {¶12} "IV. THE TRIAL COURT VIOLATED R.C. 2947.14 BY AUTHORIZING

CREDIT OF $30 PER DAY FOR JAIL TIME IMPOSED FOR NON-PAYMENT OF

FINES WHEN THE STATUTE PROVIDES FOR $50 PER DAY."

                                             I. and II.

       {¶13} In the first assignment of error, Appellant maintains his conviction for

misdemeanor assault is not supported by the manifest weight or sufficiency of the

evidence.

       {¶14} R.C. 2903.13(A) reads, "No person shall knowingly cause or attempt to

cause physical harm to another."

       {¶15} Appellant relies upon the testimony of Boley who stated she slipped and

fell on the ice in the parking lot, and does not remember sustaining injuries.

       {¶16} In either a criminal or civil case, the weight to be given the evidence and

the credibility of the witnesses are primarily for the trier of fact. By the verdict rendered

herein, it is apparent the jury believed the testimony of the prosecuting witnesses and

the corroborating evidence presented by the state. State v. DeHass, 10 Ohio St. 2d

230, 231, 227 N.E.2d 212, 213, (1967)

       {¶17} A review of the sufficiency of the evidence and a review of the manifest

weight of the evidence are separate and legally distinct determinations. State v. Gulley

(Mar.15, 2000), 9th Dist. No. 19600, at 3. “While the test for sufficiency requires a

determination of whether the State has met its burden of production at trial, a manifest

weight challenge questions whether the State has met its burden of persuasion.” State

v. Thompkins (1997), 78 Ohio St.3d 380, 390.
Licking County, Case No. 14-CA-105                                                        5


       {¶18} In order to determine whether the evidence before the trial court was

sufficient to sustain a conviction, this Court must review the evidence in a light most

favorable to the prosecution. State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two

of the syllabus, superseded by State constitutional amendment on other grounds in

State v. Smith (1997), 80 Ohio St.3d 89.

       {¶19} Specifically, an appellate court's function, when reviewing the sufficiency

of the evidence to support a criminal conviction, is to examine the evidence admitted at

trial to determine whether such evidence, if believed, would convince the average mind

of the defendant's guilt beyond a reasonable doubt. State v. Jenks, supra. This test

raises a question of law and does not allow the court to weigh the evidence. State v.

Martin (1983), 20 Ohio App.3d 172, 175. The relevant inquiry is whether, after viewing

the evidence in a light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime proven beyond a reasonable doubt.”

State v. Thompkins, 78 Ohio St.3d at 386.

       {¶20} A weight of the evidence challenge indicates that a greater amount of

credible evidence supports one side of the issue than supports the other. State v.

Thompkins, 78 Ohio St.3d at 387. Further, when reversing a conviction on the basis that

the conviction was against the manifest weight of the evidence, the appellate court sits

as the “thirteenth juror” and disagrees with the fact finder's resolution of the conflicting

testimony. Id. at 388. An appellate court must make every reasonable presumption in

favor of the judgment and Findings of Fact of the trial court. Karches v. Cincinnati

(1988), 38 Ohio St.3d 12, 19. “The verdict will not be disturbed unless the appellate

court finds that reasonable minds could not reach the conclusion reached by the trier of
Licking County, Case No. 14-CA-105                                                      6

fact.” State v. Clemons (1998), 82 Ohio St.3d 438, 444, citing State v. Jenks, 61 Ohio

St.3d at 273. Therefore, this Court's “discretionary power * * * should be exercised only

in the exceptional case in which the evidence weighs heavily against the conviction.”

State v. Martin (1983), 20 Ohio App.3d 172, 175.

       {¶21} Here, Sierra Clark testified at trial as to her observations of Appellant

pulling Boley out of the car and hitting her in the face and body with his fist. She

testified he then kicked her and grabbed her by the hair, pulling her up and pushing her

against the car.

       {¶22} Valerie Keaser also testified as to witnessing Appellant and Boley

struggling near the car. She testified Appellant appeared to be beating Boley. She

stated she witnessed Appellant pull Boley by the hair with both hands, and then yelled

for Clark to call 911. She saw Boley running away from Appellant.

       {¶23} Both Clark and Keaser testified Boley was hysterical, and her nose and

mouth were bloody.      Once inside Aspen Fitness, Clark locked the door of the

establishment. Keaser testified Boley was red, shaking and hyperventilating.

       {¶24} Based upon the testimony of the witnesses, we find the jury did not lose its

way in finding Appellant guilty of the charge of misdemeanor assault, and Appellant's

conviction was based upon credible and competent testimony.

       {¶25} The first and second assignments of error are overruled.

                                            III. & IV.

       {¶26} In the third assignment of error, Appellant argues the trial court erred in

including a provision in the sentencing entry indicating Appellant would be jailed for the

non-payment of a fine without determining at sentencing Appellant had the ability to pay
Licking County, Case No. 14-CA-105                                                      7


the fine and including the statutory findings in a written judgment entry. In his fourth

assignment of error, Appellant maintains the trial court violated R.C. 2947.14 by

authorizing credit of $30 per day for jail time imposed for non-payment of fines when the

statute authorizes $50 per day.

      {¶27} The trial court's sentencing entry states,

             Judgment is hereby rendered this court for the amount of the fine

      and costs imposed, and upon failure of the defendant to pay same, he

      may be given a reasonable time in which to make payment. But, if the

      same is not paid within the time give, the defendant is to be incarcerated

      in the city/county jail until the fine is paid, receiving credit of $30 per day

      for each day incarcerated toward the balance remaining on the fine. The

      Clerk shall then proceed to collect the cost according to appropriate civil

      procedure.

      {¶28} This Court previously held in State v. Ramsey, 5th Dist. No. 13-CA-119,

2014-Ohio-4232,

             Here, the trial court did not address Appellant's ability to pay at

      sentencing, nor did the trial court file an entry containing findings of fact

      upon which the court based its determination Appellant was able to pay

      the fine.

             This Court has followed the line of Ohio case law holding the

      hearing requirement is not triggered until the trial court decides to

      incarcerate the offender for failure to pay the fine. See, State v. Meyer 124

      Ohio App.3d 373 (1997). In State v. Chaney, 5th Dist.2004CAC07057,
Licking County, Case No. 14-CA-105                                                     8


      2004–Ohio–6712, this Court held the defendant was entitled to a hearing

      at the time he was brought before the court for enforcement of the fine. In

      Chaney, this Court held,

             “R.C. 2929.18 makes a hearing discretionary when the court initially

      imposes a fine, but R.C. 2947.14 mandates a hearing held to determine

      an offender's ability to pay in the event he faces incarceration due to non-

      payment, see State v. Meyer (1997), 124 Ohio App.3d 373, 706 N.E.2d

      378.

             “In the event appellant is at some later time brought before the trial

      court for failure to pay his fine and costs, he would be entitled to a hearing

      as to his ability to pay. Appellant has not demonstrated any attempt to

      enforce the fine and costs. An attempt to enforce a fine, costs, or any

      other financial sanction will trigger due process and hearing requirements,

      see, e.g. Williams v. Illinois (1970), 399 U.S. 235, 90 S.Ct. 2018, 26

      L.Ed.2d 586, and Tate v. Short (1971), 401 U.S. 395, 91 S.Ct. 668, 28

      L.Ed.2d 130.”

             We find a trial court can impose a fine at sentencing without

      conducting a hearing to determine the Appellant's ability to pay, but cannot

      order the Appellant incarcerated for failure to pay the fine without

      conducting the hearing required under R.C. 2947.14. As such, we reaffirm

      our holding in Chaney.

             Appellant was not given a hearing on his ability to pay. While the

      trial court's order allows Appellant a reasonable time to make payment, it
Licking County, Case No. 14-CA-105                                                  9


      includes language ordering Appellant incarcerated if the fine is not paid.

      We find this portion of the sentencing entry does not comport with the

      statute. Nor does giving only $30 credit per day comport with the statue

      which provides for a credit of $50 per day. Accordingly, we sustain both of

      Appellant's assignments of error.

      {¶29} Pursuant to this Court's previous holding in Ramsey and in State v.

Chaney, 5th Dist. 2004CAC07057, 2004-Ohio-6712, Appellant's third and fourth

assignments of error are sustained.

      {¶30} Appellant's conviction is affirmed but his sentence is reversed, and the

matter remanded to the trial court for resentencing.

By: Hoffman, P.J.

Farmer, J. and

Wise, J. concur
