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

COURT OF APPEALS 

LICKING COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsAUBREY SHERMAN 

 Defendant-Appellant 

JUDGES: 

Hon. William B. Hoffman, P.J. 

Hon. Sheila G. Farmer, J. 

Hon. John W. Wise, J. 

Case No. 14-CA-105 

O P I N I O N 

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 nonpayment, 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