[Cite as State v. Belt, 2016-Ohio-8069.]


                                         COURT OF APPEALS
                                     MUSKINGUM COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                   :   JUDGES:
                                                 :
                                                 :   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                       :   Hon. John W. Wise, J.
                                                 :   Hon. Patricia A. Delaney, J.
 -vs-                                            :
                                                 :   Case No. CT2016-0012
                                                 :
 BARBARA J. BELT                                 :
                                                 :
                                                 :
        Defendant-Appellant                      :   OPINION


CHARACTER OF PROCEEDING:                             Appeal from the Muskingum County
                                                     Court, Case No. CRB 1500657



JUDGMENT:                                            AFFIRMED




DATE OF JUDGMENT ENTRY:                              November 30, 2016




APPEARANCES:

 For Plaintiff-Appellee:                             For Defendant-Appellant:

 D. MICHAEL HADDOX                                   FREDERICK A. SEALOVER
 MUSKINGUM CO. PROSECUTOR                            45 N. Fourth St.
 GERALD V. ANDERSON II                               P.O. Box 2910
 27 North Fifth St., P.O. Box 189                    Zanesville, OH 43702-2910
 Zanesville, OH 43702-0189
Muskingum County, Case No. CT2016-0012
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Delaney, J.

       {¶1} Defendant-appellant Barbara J. Belt appeals from the January 19 and

February 1, 2016 judgment entries of the Muskingum County Court. Appellee is the state

of Ohio.

                         FACTS AND PROCEDURAL HISTORY

       {¶2} Appellant and Lawrence “Marty” Tobias are neighbors in a Zanesville trailer

court. Marty’s wife, Lisa, is the aunt of appellant’s daughter-in-law, Lindsey Richards.

Kenneth Richards is appellant’s son and Lindsey’s husband. Kenneth and Lindsey

admittedly struggle with substance abuse and homelessness. Prior to August 2015, the

pair were frequent visitors to the trailers of appellant and the Tobiases.

       {¶3} On August 3, 2015, appellant and Kenneth argued inside appellant’s trailer

because Kenneth wanted her to give him a coin collection. Kenneth left and went next

door to the Tobiases’ trailer. Marty and Lisa were inside the trailer when he arrived, and

as the evening progressed, Kenneth and Lindsey came and went between the

neighboring trailers.

       {¶4} According to the Tobiases, appellant came to their trailer three times after

her initial argument with Kenneth. The first time, Lisa and/or Lindsey let her in to talk to

Kenneth; the two argued and appellant left voluntarily. Appellant then came back a

second time and argued again with Kenneth. Children were allegedly present during

some of the argument. This time, Marty told appellant to leave and not come back

because she was using profanity. Marty escorted appellant out the door and locked it

behind her. Both Tobiases testified that a short time later, they heard a “snap” or a “pop”

and observed appellant force open the door and come in for a third time. Marty argued
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with appellant; she again swore at him; and he threatened to call the sheriff. Appellant

left, slamming the door so hard that knickknacks fell off a shelf. The Tobiases said the

door and the knickknacks were damaged.

           {¶5} Deputy Spawn of the Muskingum County Sheriff’s Department testified on

behalf of appellee. He was called to the scene of the criminal trespass and spoke to the

Tobiases. He observed “minimal” damage to the door consistent with the door being

forced or slammed. Spawn testified the Tobiases told him appellant came to their trailer

twice; they did not tell him about damaged knickknacks; and no one told him the Tobiases

have surveillance cameras. (The surveillance cameras ultimately played no role at trial.)

           {¶6} Kenneth and Lindsey Richards testified on behalf of appellant; both

admitted they were high on Xanax the day of the incident and could recall only “bits and

pieces” of the day’s events. They said appellant did not damage the door of the Tobiases’

trailer.

           {¶7} Appellant testified on her own behalf and said she came to the neighbors’

trailer only once that day and left voluntarily. She denied entering uninvited and denied

damaging the door.

           {¶8} Appellant was charged by criminal complaint with one count of criminal

trespass pursuant to R.C. 2911.21(A)(1), a misdemeanor of the fourth degree [Count I]

and one count of criminal damaging pursuant to R.C. 2909.06(A)(1), a misdemeanor of

the second degree [Count II]. Appellant entered pleas of not guilty and the matter

proceeded to bench trial. Appellant was found guilty as charged and sentencing was

deferred pending a restitution hearing. At the subsequent hearing, Marty Tobias testified

he had to replace the entire inner door, screen door, and door frame of the trailer at a
Muskingum County, Case No. CT2016-0012
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cost of over $1600. Marty requested restitution in the amount of $529, which represented

his out-of-pocket expenses including an insurance deductible and the cost of some “trim.”

The trial court imposed a jail term of 7 days and suspended the balance on the conditions

that, e.g., appellant pay restitution in the amount of $529.58 and have no criminal offenses

for a period of two years.

       {¶9} Appellant now appeals from the judgment entries of conviction and

sentence of the Muskingum County Court.

       {¶10} Appellant raises two assignments of error:

                              ASSIGNMENTS OF ERROR

       {¶11} “I.   THE TRIAL COURT ERRED BY FINDING THE DEFENDANT-

APPELLANT GUILTY AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE

EVIDENCE.”

       {¶12} “II. THE TRIAL COURT ERRED BY IMPOSING UPON THE DEFENDANT-

APPELLANT A MAXIMUM INDIRECT JAIL SENTENCE, CONTRARY TO LAW.”

                                        ANALYSIS

                                             I.

       {¶13} In her first assignment of error, appellant argues her convictions upon one

count of criminal trespass and one count of criminal damaging are against the manifest

weight and sufficiency of the evidence. We disagree.

       {¶14} The legal concepts of sufficiency of the evidence and weight of the evidence

are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380,

1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review

for a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio
Muskingum County, Case No. CT2016-0012
                                                                                           5

St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio

Supreme Court held, “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. 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.”

       {¶15} In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the “thirteenth juror,” and after “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 overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387.

Reversing a conviction as being against the manifest weight of the evidence and ordering

a new trial should be reserved for only the “exceptional case in which the evidence weighs

heavily against the conviction.” Id.

       {¶16} Appellant was found guilty of trespassing in the Tobiases’ trailer and

damaging their door. R.C. 2911.21(A)(1), criminal trespass, states, “No person, without

privilege to do so, shall * * * [k]nowingly enter or remain on the land or premises of

another.” R.C. 2909.06(A)(1), criminal damaging, states, “No person shall cause, or

create a substantial risk of physical harm to any property of another without the other

person's consent [k]nowingly, by any means.”
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       {¶17} Appellant argues the evidence is insufficient to support her convictions and

the trial court lost its way in considering the evidence because the witnesses’ testimony

is inconsistent. The weight of the evidence and the credibility of the witnesses are

determined by the trier of fact. State v. Yarbrough, 95 Ohio St.3d 227, 231, 2002-Ohio-

2126, 767 N.E.2d 216, ¶ 79. The factfinder, in this case the trial court, was free to accept

or reject any and all of the evidence offered by the parties and assess the witnesses’

credibility. “While the [factfinder] may take note of the inconsistencies and resolve or

discount them accordingly * * * such inconsistencies do not render defendant's conviction

against the manifest weight or sufficiency of the evidence.” State v. McGregor, 5th Dist.

Ashland No. 15-COA-023, 2016-Ohio-3082, ¶ 10, citing State v. Craig, 10th Dist. Franklin

No. 99AP–739 (Mar. 23, 2000). Indeed, the factfinder need not believe all of a witness'

testimony, but may accept only portions of it as true. Id.

       {¶18} Our review of the entire record reveals no significant inconsistencies or

other conflicts in appellee’s evidence that would demonstrate a lack of credibility of

appellee’s witnesses. Although the Tobiases were inconsistent in some of the details,

appellee’s theory that appellant entered the neighbors’ trailer uninvited and damaged the

door was corroborated by the deputy’s testimony of his immediate observations of the

scene and the witnesses.

       {¶19} Appellant also argues she may not have had the requisite intent of

“knowingly” in regard to Count II, criminal damaging, and she may have negligently or

recklessly damaged the trailer door. Appellant apparently concedes damaging the door,

although she claims not to have done so intentionally. Appellee’s evidence showed
Muskingum County, Case No. CT2016-0012
                                                                                          7

appellant may have damaged the door when she forced her way in or when she slammed

it on her way out. R.C. 2901.22(B) defines “knowingly” as follows:

                       A person acts knowingly, regardless of purpose, when the

              person is aware that the person's conduct will probably cause a

              certain result or will probably be of a certain nature. A person has

              knowledge of circumstances when the person is aware that such

              circumstances probably exist. When knowledge of the existence of a

              particular fact is an element of an offense, such knowledge is

              established if a person subjectively believes that there is a high

              probability of its existence and fails to make inquiry or acts with a

              conscious purpose to avoid learning the fact.

       {¶20} The Tobiases’ testimony, corroborated by the deputy’s observation of

damage to the door, establishes sufficient evidence appellant acted knowingly.

Appellant’s witnesses, and her own testimony, further confirmed the chaos and fighting

that day. The trial court could reasonably find appellant acted knowingly. In a bench trial,

the court is presumed to know the law and properly apply it. State v. Sarver, 7th Dist. No.

05-CO-53, 2007-Ohio-601, ¶ 23. The trial court found appellant guilty from the bench

immediately after trial and specifically noted it did not find appellant credible, nor her

witnesses Kenneth and Lindsey Richards. The trial court did find the Tobiases’ testimony

credible. We have reviewed the record and find appellant’s convictions are supported by

sufficient evidence.

       {¶21} We further find the trial court did not clearly lose its way and create a

manifest miscarriage of justice requiring that appellant's convictions be reversed and a
Muskingum County, Case No. CT2016-0012
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new trial ordered. Appellant's convictions are not against the manifest weight of the

evidence.

       {¶22} Appellant’s first assignment of error is overruled.

                                                II.

       {¶23} In her second assignment of error, appellant argues the trial court erred in

sentencing her to a “maximum indirect jail term.” We disagree.

       {¶24} Appellant was convicted upon a misdemeanor of the fourth degree in Count

I, criminal trespass, for which the maximum jail term is 30 days. R.C. 2929.24(A)(4). She

was also convicted upon a misdemeanor of the second degree in Count II, criminal

damaging, in which the maximum jail term is 90 days. R.C. 2929.24(A)(2). The trial court

sentenced appellant to a jail term of 7 days with the balance of 113 suspended on

conditions.   The sentences imposed in the instant case are thus within the statutory

ranges for a misdemeanors of the second and fourth degrees.

       {¶25} Misdemeanor sentences are reviewed for an abuse of discretion. State v.

Thadur, 5th Dist. Ashland No. 15 COA 018, 2016-Ohio-417, ¶ 11, appeal not allowed,

145 Ohio St.3d 1473, 2016-Ohio-3028, 49 N.E.3d 1314. In order to find an abuse of

discretion, the reviewing court must determine that the trial court’s decision was

unreasonable, arbitrary, or unconscionable and not merely an error of law or judgment.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶26} When sentencing for a misdemeanor offense, a trial court is guided by the

“overriding purposes of misdemeanor sentencing,” which are to protect the public from

future crime by the offender and others and to punish the offender. R.C. 2929.21(A); State

v. Collins, 2nd Dist. Greene No. 2012-CA-2, 2012-Ohio-4969, ¶ 9. “To achieve those
Muskingum County, Case No. CT2016-0012
                                                                                          9

purposes, the sentencing court [must] consider the impact of the offense upon the victim

and the need for changing the offender's behavior, rehabilitating the offender, and making

restitution to the victim of the offense, the public, or the victim and the public.” Id. The

sentence imposed must be “reasonably calculated to achieve the two overriding purposes

of misdemeanor sentencing * * *, commensurate with and not demeaning to the

seriousness of the offender's conduct and its impact upon the victim, and consistent with

sentences imposed for similar offenses committed by similar offenders.” R.C. 2929.21(B);

Collins at ¶ 9.

       {¶27} R.C. 2929.22 states in pertinent part as follows:

                      (A) Unless a mandatory jail term is required to be imposed * *

              * a court that imposes a sentence under this chapter upon an

              offender for a misdemeanor or minor misdemeanor has discretion to

              determine the most effective way to achieve the purposes and

              principles of sentencing set forth in section 2929.21 of the Revised

              Code.

                      Unless a specific sanction is required to be imposed or is

              precluded from being imposed by the section setting forth an offense

              or the penalty for an offense or by any provision of sections 2929.23

              to 2929.28 of the Revised Code, a court that imposes a sentence

              upon an offender for a misdemeanor may impose on the offender

              any sanction or combination of sanctions under sections 2929.24 to

              2929.28 of the Revised Code. The court shall not impose a sentence
Muskingum County, Case No. CT2016-0012
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           that imposes an unnecessary burden on local government

           resources.

                  (B)(1) In determining the appropriate sentence for a

           misdemeanor, the court shall consider all of the following factors:

                  (a) The nature and circumstances of the offense or offenses;

                  (b) Whether the circumstances regarding the offender and the

           offense or offenses indicate that the offender has a history of

           persistent criminal activity and that the offender's character and

           condition reveal a substantial risk that the offender will commit

           another offense;

                  (c) Whether the circumstances regarding the offender and the

           offense or offenses indicate that the offender's history, character,

           and condition reveal a substantial risk that the offender will be a

           danger to others and that the offender's conduct has been

           characterized by a pattern of repetitive, compulsive, or aggressive

           behavior with heedless indifference to the consequences;

                  (d) Whether the victim's youth, age, disability, or other factor

           made the victim particularly vulnerable to the offense or made the

           impact of the offense more serious;

                  (e) Whether the offender is likely to commit future crimes in

           general, in addition to the circumstances described in divisions

           (B)(1)(b) and (c) of this section;
Muskingum County, Case No. CT2016-0012
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                     (f) Whether the offender has an emotional, mental, or physical

              condition that is traceable to the offender's service in the armed

              forces of the United States and that was a contributing factor in the

              offender's commission of the offense or offenses;

                     (g) The offender's military service record.

                     (2)   In   determining   the   appropriate    sentence    for   a

              misdemeanor, in addition to complying with division (B)(1) of this

              section, the court may consider any other factors that are relevant to

              achieving the purposes and principles of sentencing set forth in

              section 2929.21 of the Revised Code.

                     * * * *.

       {¶28} R.C. 2929.21(A) states that “[a] court that sentences an offender for a

misdemeanor * * * shall be guided by the overriding purposes of misdemeanor

sentencing. * * *.” The overriding purposes of misdemeanor sentencing are to protect the

public from future crime by the offender and others and to punish the offender. Id. In order

to achieve those purposes, a sentencing court must consider “the impact of the offense

upon the victim and the need for changing the offender's behavior, rehabilitating the

offender, and making restitution to the victim of the offense, the public, or the victim and

the public.” Id.; State v. Coleman, 4th Dist. Scioto No. 05CA3037, 2006-Ohio-3200, 2006

WL 1719348, ¶ 21. In the instant case, the trial court suspended the balance of the jail

term on a number of conditions, including payment of restitution in the substantial amount

of $529.58. The trial court did not impose a fine to enable appellant to pay the restitution.
Muskingum County, Case No. CT2016-0012
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       {¶29} Appellant argues the sentence is too harsh because she did not commit the

worst form of the offense pursuant to R.C. 2929.22(C), which states:

                     Before imposing a jail term as a sentence for a

              misdemeanor, a court shall consider the appropriateness of

              imposing a community control sanction or a combination of

              community control sanctions under sections 2929.25, 2929.26,

              2929.27, and 2929.28 of the Revised Code. A court may impose the

              longest jail term authorized under section 2929.24 of the Revised

              Code only upon offenders who commit the worst forms of the offense

              or upon offenders whose conduct and response to prior sanctions for

              prior offenses demonstrate that the imposition of the longest jail term

              is necessary to deter the offender from committing a future crime.

              (Emphasis added.)

       {¶30} At the conclusion of the trial, it is evident from the record the trial court was

unimpressed with the testimony of appellant, her son, and her daughter-in-law.              At

sentencing, it is evident the trial court took issue with appellant’s lack of remorse. There

is no requirement that a trial court specifically state its reasons on the record in sentencing

on misdemeanor offenses. State v. Harpster, 5th Dist. Ashland No. 04COA061, 2005-

Ohio-1046, 2005 WL 567319, ¶ 20. Even where a record is silent, we must presume the

trial court considered the proper factors enumerated in R.C. 2929.22. State v. Kandel, 5th

Dist. Ashland No. 04COA011, 2004-Ohio-6987, 2004 WL 2955228, ¶ 25. In the instant

case, however, the trial court stated the sentence was premised upon appellant’s lack of

remorse, her failure to accept responsibility for her actions, and her record of two prior
Muskingum County, Case No. CT2016-0012
                                                                                       13

theft offenses. (The trial court did note the theft offenses occurred in 1984 and took

appellant’s lack of criminal record in the meantime into account.)

       {¶31} We find the trial court properly considered the factors of R.C. 2929.22 and

did not abuse its discretion in imposing a jail term of 7 days and suspending the balance.

       {¶32} Appellant’s second assignment of error is overruled.


                                     CONCLUSION

       {¶33} Appellant’s two assignments of error are overruled and the judgment of the

Muskingum County Court is affirmed.

By: Delaney, J. and

Wise, J., concur;

Hoffman, P.J., concurs in part
and dissents in part.
Muskingum County, Case No. CT2016-0012
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Hoffman, P.J., concurring in part and dissenting in part.

       {¶34} I concur in the majority’s analysis and disposition of Appellant’s first

assignment of error.

       {¶35} I respectfully dissent from part of the majority’s decision in Appellant’s

second assignment of error. While Appellant’s lack of remorse and her failure to accept

responsibility for her actions are appropriate considerations in sentencing, they have little

bearing, if any, on the issue of whether Appellant committed the “worst form” of the

offense. While it is arguable Appellant committed the worst form of the offense of criminal

trespass in light of the clear directive given by Mr. Tobias not to return, I find the facts

surrounding the “minimal” damage to the door consistent with it being forced or slammed

and the seemingly unintentional damage to the knick knacks insufficient to constitute the

worst form of the offense of criminal damaging.1




                                          __________________________________
                                             HON. WILLIAM B. HOFFMAN




1
 While Appellant had a prior record of committing two theft offenses in 1984, the trial court
seemed to discount them taking Appellant’s lack of a criminal record [for over 30 years]
into account. Accordingly, I conclude the trial court did not consider Appellant’s conduct
and response to prior sanctions for prior offenses demonstrated the need to impose the
maximum sentence. Nor would I.
