[Cite as State v. Zappa , 2022-Ohio-243.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF WAYNE )

STATE OF OHIO Appellee

v. GERARD ZAPPA Appellant C.A. No. 20AP0025

APPEAL FROM JUDGMENT ENTERED IN THE WAYNE COUNTY MUNICIPAL COURT COUNTY OF WAYNE, OHIO CASE No. 2020 CR-B 000032

DECISION AND JOURNAL ENTRY Dated: January 31, 2022

CALLAHAN, Judge. {¶1} Appellant, Gerard Zappa, appeal s his conviction by the Wayne Co unty Municipal

Court. This Court affirms i n part and reverses in part.

I. {¶2} Mr. Zappa made an appointment f or a ninety-minute massage at Na il Spa and Salon in Wooster. M.E., who provi ded the massage to Mr. Zappa, terminated the massage near the end of the appointment because she believed Mr. Zappa’s beh avior to be inappropriate. The spa owner called the Wooster Police Department after Mr. Zappa left the premises, and M.E. informed the police that Mr. Z appa exposed himself to her and e ngaged in inappr opriate sexual movements during the massage. A n officer spoke with Mr. Zappa by telephone after the incident, but Mr. Zappa decline d to meet with him to provide a statement. {¶3} Mr. Zappa was charged with two counts of public indecency in vi olation of R.C. 2907.09(A)(1) and (A)(2), respectiv ely. The State filed a moti on in limine requesting that the2

trial court prohibit the defense from introducing evidence rega rding M.E.’s licensure level with respect to massage, arguing that it was irrelevant to the proce edings and could risk “a trial regarding the legitimacy of [M.E.’s] professional licensing as opposed to the relevant facts relating to the public indecency charges.” The trial court con cluded that the defense could inquire on cross-examination in to M.E.’s “training, experience, education, and other relevant factors” but prohibited the de fense from eliciting testimony ab out her licensure. {¶4} Mr. Zappa waived his right to a jury trial. The trial court fo und him guilty of each charge, imposed fines, sentenced him to community control for t wenty-four months, and imposed a jail term of sixty days . Mr. Zappa appealed. His fo ur assignments of error are rearranged for purposes of discussion.

II.

ASSIGNMENT OF ERROR NO. 2

THE STATE LACKED SUFFICIENT EVIDENCE TO SUPPORT BOTH OF MR. ZAPPA’S CONVICTIONS FOR PUBLIC INDECENCY AND CONSEQUENTLY, THOSE CONVICTIONS MUST BE REVERSED. {¶5} In his second assignment of error, Mr. Zappa has argued that hi s convictions for public indecency are not supported by sufficient evidence. Thi s Court does not agree. {¶6} As an initial matter, this Court notes Mr. Zappa has not separa tely argued his assignments of error with respect to sufficiency and manifest w eight. Contrary to his argument, sufficiency and manifest weight are separate and distinct quest ions, and this Court has repeatedly noted that it is not appropriate to combine sufficiency and man ifest weight arguments within a single discussion. See , e.g. , State v. Seibert , 9th Dist. Wayne Nos. 20AP0013, 20AP0014, 2021- Ohio-3069, ¶ 13, quoting State v. Vicente-Colon , 9th Dist. Lorain No. 09CA009705, 2010-Ohio6242, ¶ 18, and State v. Mukha , 9th Dist. Wayne No. 18AP0019, 2018-Ohio-4918, ¶ 11. See3

also State v. Perkins , 9th Dist. Wayne No. 20AP0031, 2021-Ohio-2630, ¶ 9; App.R. 12( A)(2); Loc.R. 7(B)(7). 1 Moreover, “these concepts differ both qualitatively and quant itatively.” State

v. Wilson , 113 Ohio St.3d 382, 2007-Ohio-2202, ¶ 25, citing State v. Thompkins , 78 Ohio St.3d 380, 386-387 (1997). {¶7} “Whether a conviction is supported by sufficient evidence is a question of law

that this Court reviews de novo.” State v. Williams , 9th Dist. Summit No. 24731, 2009-Ohio6955, ¶ 18, citing Thompkins at 386 (1997). The relevant inquiry is whether the prosecution has met its burden of production by pr esenting sufficient evidence to sustain a conviction. Thompkins at 390 (Cook, J., concurring). For purposes of a sufficiency analysis, this Court must view the evidence in the light most favorable to the State. Jackson v. Virginia , 443 U.S. 307, 319 (1979). We do not evaluate credibility, and we make all re asonable inferences in favor of

the State. State v. Jenks , 61 Ohio St.3d 259, 273 (1991). The evidence is sufficient if it allows the trier of fact to reasonably c onclude that the essential ele ments of the crime were proven beyond a reasonable doubt. Id

. {¶8} R.C. 2907.09(A)(1)/(2) prohibits any person from “recklessly * * * under circumstances in which the person’s conduct is likely to be vie wed by and affront others who are in the person’s physical proximity and who are not members of t he person’s household * * * [e]xpos[ing] the person’s private parts [or] * * * [e]ngag[ing] in sexual conduct or masturbation[.]” Although not def ined by statute, courts have determined that “private parts,” as used in R.C. 2907.09(A)(1), refers to genitals. See State v. Jetter , 74 Ohio App.3d 535, 536 (1st Dist.1991) fn. 1. The term “masturbation” is likewise undefined by the Re vised Code, but, looking to the plain and ordinary meaning of the term, this Cou rt has explained that the term

1 As of January 1, 2022, this pr ovision is now found in Loc.R. 1 6(A)(7).4

includes both “the stimulation or the manipulation of one’s g enital organs.” (Emphasis in original.) State v. Marrero , 9th Dist. Lorain No. 08CA009467, 2009-Ohio-2430, ¶ 24-25, cit ing

Columbus v. Heck , 10th Dist. Franklin No. 98AP-1384, 1999 WL 1009734, *5 (Nov. 9, 1999). Consequently, this Court has not ed that “masturbation” can be d efined as: “‘the manipulation of genital orga ns for sexual gratification b y means other than sexual intercourse.’ Neither tha t definition nor the common, o rdinary meaning of the term masturbation requires a ny expressed or observed sexual gratification that indicates the individual is findi ng pleasure. Rather, sexual g ratification is the motivation for engaging in that behavior. That motive reasonab ly can be inferred whenever a person engages in that conduct * * *.”

Marrero at ¶ 24, quoting State v. Johnson , 2d Dist. Montgomery No. 21335, 2006-Ohio-4935, ¶ 20, quoting Heck at *5. “A person acts recklessly when, with heedless indiffer ence to the consequences, the person disrega rds a substantial and unjustifi able risk that the person’s conduct is likely to cause a certain r esult or is likely to be of a cer tain nature.” R.C. 2901.22(C). {¶9} Mr. Zappa argues that his conviction is not supported by suffic ient evidence that he “recklessly * * * [e]xpos[ed] [his] private parts” to M.E in violation of R.C. 2907.09(A)(1). He also argues that there is no evidence that he engaged in mas turbation in violation of R.C. 2907.09(A)(2). The record demonstrates otherwise. {¶10} M.E. testified that, as was her practice prior to a massage ses sion, she greeted Mr. Zappa and instructed him before leaving the room for him to rem ove his clothing except for his undergarments. She recalled that M r. Zappa told her he was wea ring boxer shorts and asked for a towel, which she assumed that he wanted for extra covering. When she returned to the massage room, Mr. Zappa was face- down on the massage table cove red by the sheet, but she did not see the towel. M.E. explained that although Mr. Zappa told her that he had “trouble issues with his groin area[,]” she di d not normally massage that area and focused on the back of his thigh instead.5

{¶11} M.E. testified that as she did so, Mr. Zappa was “groaning and moaning[.]” She recalled that she asked Mr. Zappa whether he was in pain and no ted that he was making a sexual motion on the bed that included raising his buttocks, which cau sed the draping to come off of his body. M.E. testified that as he d id so, Mr. Zappa said, “‘Oh t his feels so f’ing good[.]’” She explained that Mr. Zappa made these motions for approximately t hree to five minutes and that she had to redrape him three or four times. She testified that she also realized at that point that Mr. Zappa was not wearing undergar ments. She explained that th e situation made her uncomfortable, but that she c ontinued with the massage. {¶12} M.E. testified that Mr. Zappa flipped to his back halfway throu gh the massage, leaving his genital area cove red but his thigh, legs, and body uncovered. She recalled that Mr. Zappa instructed her to continue massaging the same area of his thigh. Although she remained uncomfortable, M.E. decided that she could “get through the las t fifteen minutes[.]” M.E. testified that at that point, however, she noticed that Mr. Zap pa’s left hand, which had previously been lying next to him on the table, moved to his genital area. She recalled that as Mr. Zappa continued to express that the m assage “just kept feeling good[, ]” he began to touch his penis in a pulling motion, moving side to side and up and down. M.E. test ified that as he did so, the top of his penis was exposed. At that time, according to her testimon y, M.E. attempted to end the massage because she was uncomfort able. In response, Mr. Zappa implored her to continue massaging the same area. M.E. testified that although she star ted to do so, she noticed that Mr. Zappa “was starting to caress hi s penis again” and twice stated that he “could take care of [her].”

M.E. did not continue because she “ just knew it wasn’t right[.] ” {¶13} Viewing this evidence in the li ght most favorable to the State, as we must, this

Court concludes that a trier of fact could reasonably conclude beyond a reasonable doubt that6

Mr. Zappa acted at least with “heedless indifference to the con sequences” and “disregard[ed] a substantial and unjustifiable ri sk” that his actions would expo se himself to M.E. in violation of R.C. 2907.09(A)(1). See R.C. 2901.22(C). Similarly, a trie r of fact could reasonably c onclude beyond a reasonable doubt that Mr . Zappa manipulated his genita ls for the purpose of sexual gratification. See Marrero , 2009-Ohio-2430, at ¶ 24, quoting Johnson , 2006-Ohio-4935, at ¶ 20, quoting Heck , 1999 WL 1009734, at *5. {¶14} Mr. Zappa has also argued that the State did not produce suffic ient evidence that his conduct was “likely to be vi ewed by and affront others who [were] in [his] physical proximity[.]” See R.C. 2907.09(A). Specifically, Mr. Zappa urges this Court to conclude that R.C. 2907.09(A) requires the conduct of an accused to be measur ed by a reasonable person in circumstances specific to the victim. In this case, then, he a rgues that this Court should conclude that a reasonable massage provider would not be affronted in th ese circumstances. Whether viewed from that prospective or not, however, this Court conclu des that there was sufficient evidence at trial from which the trier of fact could reasonably conclude that Mr. Zappa’s conduct was likely to cause affront to M.E. {¶15} Mr. Zappa’s convictions for pub lic indecency were supported by sufficient evidence, and his second assignm ent of error is overruled.

ASSIGNMENT OF ERROR NO. 1

MR. ZAPPA’S PUBLIC INDECENCY CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND AS A RESULT, HIS RIGHTS UNDER THE 14TH AMENDMENT OF THE U.S. CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION WERE VIOLATED. {¶16} In his first assignment of error, Mr. Zappa argues that his con victions for public indecency are against the manif est weight of the evidence. Thi s Court does not agree.7

{¶17} When considering whether a convic tion is against the manifest w eight of the evidence, this Court applies a different standard than in a suf ficiency analysis. See State v.

Martinez-Castro , 9th Dist. Lorain No. 18CA011361, 2019-Ohio-1155, ¶ 14, citing Eastley v.

Volkman , 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 11-13. To evaluate the weight of the evidence, this Court must: review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and cre ated such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.

State v. Otten , 33 Ohio App.3d 339, 340 (9th Dist.1986). A reversal on this basis is reserved for the exceptional case in which the evidence weighs heavily again st the conviction. Id. , citing

State v. Martin , 20 Ohio App.3d 172, 175 (1st Dist.1983). {¶18} In support of his argument that his convictions are against the manifest weight of the evidence, Mr. Zappa has argued that M.E.’s testimony was un persuasive, that the

circumstances demonstrated that he was not reckless, that there are alternative explanations for his conduct, and that the evidenc e does not demonstrate that a person in M.E.’s position was likely to be affronted by his conduct. Undergirding these argu ments is the more fundamental proposition that Mr. Zappa’s testimony regarding the events in question was more credible than M.E.’s testimony. {¶19} Mr. Zappa testified that M.E. told him to leave his underwear o n, but according to his testimony, he told her that t he boxers he was wearing would interfere with the massage. He explained that he requested a t owel as an additional layer betw een his body and the sheet with his underwear removed, and he expr essed that he was surprised w hen she brought him a small towel. Mr. Zappa testified that M.E. would have immediately kn own that he was not wearing8

underwear once she began the massage. He denied that he made m ovements of a sexual nature while lying prone on the massage t able but testified that there may have been “a couple of times where [he] would adjust a little bit.” He denied that he expos ed himself to M.E. or masturbated during the massage, speculating that the draping may have slipp ed. Mr. Zappa also testified that when he said that he would “take care of” M.E., his intention w as to compensate her financially

for an extended m assage session. {¶20} Mr. Zappa suggests that M.E.’s te stimony is unbelievable becaus e she testified that she completed almost the e ntire ninety-minute massage and acknowledged that, at the time,

she believed that some of his ac tions had innocent explanations . Considering her entire testimony in context, however, th is argument is unpersuasive. M.E. did testify that when Mr. Zappa made moaning sounds during the massage, she assumed that he was in pain or that he was repositioning himself. She also explained, however, that she w as uncomfortable but assumed that because “since he was like an older gentlem[a]n that it wa s like normal and it was fine[.]” The balance of her testimony indi cated that when she considered his earlier actions in light of everything that happened during the massage, she came to a diff erent conclusion. At that point,

she testified that she ended t he massage session, left the room , and asked the salon owner to deal with Mr. Zappa. She recalled that after terminating the massag e, she “felt uncomfortable and scared.” M.E. testified that she informed a colleague and then informed the salon owner about ninety minutes later. She explai ned that while doing so, she w as “shaking * * * hyperventilating and like crying[.]” With respect to her written statement to p olice, M.E. testified that she described her state of mind during the massage and the fact tha t as events were unfolding, she perceived them, individually, to be normal. She also noted tha t she omitted the reference to Mr.9

Zappa’s comments during the massage because she was unsure abou t using profanity in the

document. {¶21} The police officer who responded to the salon confirmed many of the details in M.E.’s testimony. He recalled that M.E. was “upset” and noted that “[s]he had mascara running down her face a little bit like she had been crying, very shaky , just genuinely upset.” While in this state, the officer explained, M.E. informed him that a cus tomer had made inappropriate gestures during a massage “and he eventually pulled his penis o ut and then began stroking it[.]” He testified that M.E. had ques tions about whether she could us e profanity in her written statement. The officer also testified that he spoke with Mr. Z appa after meeting with M.E., who “mentioned that he did have an erection[]” and “was a bit embar rassed about it. He said that it just felt so good how she was rubbing his inner thigh, and * * * he said that’s why he didn’t want to meet in person. He refused to meet in person because he [wa s] embarrassed about what happened.” The office r testified that Mr. Z appa also denied th at he exposed himself to M.E. {¶22} To be sure, M.E.’s and Mr. Zappa’s testimony regarding the even ts in question differ in significant respects. M.E.’s testimony, however, was consistent with the information that she provided to the officer, and her explanation that her perception of Mr. Zappa’s conduct evolved during the course of th e massage is also consistent wit h the officer’s description of her

mental state when he a rrived at the salon. {¶23} Mr. Zappa also questions M.E.’s credibility based on his assess ment that she was inexperienced and inadequately trained in providing the massage that he desired. According to his argument, someone with adequa te training would have draped him in such a way that the exposure—which he denied or, in the alternative, asserted to ha ve been inadvertent—would not have occurred. Similarly, he argues that a more experienced in dividual would have recognized10

that it was “not uncommon and certainly not indecent exposure” for a massage client to remove his undergarments. {¶24} In support of his argument, Mr. Zappa directs this Court’s atte ntion to State v.

Roberts , 2d Dist. Montgomery No. 19035, 2002 WL 857775 (May 3, 2002). In Roberts , the Second District Court of Appeals considered whether the conduct of a defendant who exposed himself and masturbated openly i n a theater that showed adult m ovies was “likely to * * * affront others” for purposes of the version of R.C. 2907.09(A) in effec t at the time. 2 Roberts at *2, quoting former R.C. 2907.09(A)(1). The Court noted that the co mment to R.C. 2907.09 explains that the statute would not prohibit nudist colonies because “pe rsons who frequent a nudist camp are not likely to be offended by the nudity of others around th em.” Roberts at *3. Consequently, the Court reasoned, the use of the term “others” in R.C. 2907.0 9(A) “would consist of persons who patronize the type of business establishment that [the defe ndant] was in” rather than the public at large. Roberts at *3. {¶25} Notably, the Second District Cour t of Appeals has since retreat ed from the breadth of its analysis in Roberts. See State v. Johnson , 2d Dist. Montgomery No. 21335, 2006- Ohio-4935, ¶ 17-19; State v. Morman , 2d Dist. Montgomery No. 19335, 2003-Ohio-1048, ¶ 16- 18. Even if this Court were to apply that analysis to this cas e, however, we cannot conclude based upon the evidence at trial that a reasonable massage prov ider would not be affronted by Mr. Zappa’s conduct, regardless of the level of training posses sed by the individual. Although the language of R.C. 2907.09(A) “mu st be interpreted in such a manner as to recognize the legality, even the pr opriety, of nudity under certain circumsta nces[,]” resort to this principle is

2 That version of R.C. 2907.09(A) did not include the qualifying language “who are in the person’s physical proximity[,]” w hich is now part of the statut e.11

also unavailing in Mr. Zappa’s case. See State v. Emsuer , 12th Dist. Preble No. CA89-12-019, 1990 WL 116928, *3 (Aug. 13, 1990). Both his conduct and the s urrounding circumstances are qualitatively different from circ umstances in which “[e]xpos[in g] [a] person’s private parts” could be a legally protected activity. Compare Roberts at *3. Moreover, the question of whether

M.E. was actually affronted is irrelevant. See Cleveland v. Carson , 8th Dist. Cuyahoga Nos. 66084, 68193, 68194, 1995 WL 396346, *3 (July 6, 1995). {¶26} This Court must “‘consider[] the credibility of witnesses’” as part of our manifest weight review. Thompkins , 78 Ohio St.3d at 387, quoting Martin , 20 Ohio App.3d at 175. Nonetheless, this Court is mindf ul of the well-established prin ciple that a trier of fact enjoys the best position to assess the credibility of witnesses. State v. Rivera , 9th Dist. Lorain No. 18CA011263, 2019-Ohio-62, ¶ 39, quoting State v. Johnson , 9th Dist. Summit No. 25161, 2010- Ohio-3296, ¶ 15. Given the evidence in this case, this Court c annot conclude that the differences in M.E.’s and Mr. Zappa’s testim ony make this the exceptional c ase in which the evidence weighs heavily against the convictions. {¶27} Mr. Zappa’s first assignm ent of error is overruled.

ASSIGNMENT OF ERROR NO. 3

THE TRIAL COURT ERRED IN REFUSING TO ALLOW MR. ZAPPA TO CROSS EXAMINE [M.E.] AND ELICIT TESTIMONY REGARDING HER CREDENTIALS AND LICENSURE IN VIOLATION OF MR. ZAPPA’S RIGHT TO PRESENT A DEFENSE AND GET A FAIR TRIAL AS PROTECTED BY THE 5TH, 6TH AND 14TH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE 1, SECTION 10 OF THE OHIO CONSTITUTION. {¶28} Mr. Zappa’s third assignment of e rror argues that the trial cou rt abused its discretion by granting the State’s motion in limine and prohibi ting him from inquiring on crossexamination about M.E.’s level of licensure. This Court does n ot agree.12

{¶29} The question of M.E.’s licensure focused on her credibility as a witness. Mr. Zappa maintained that the licensu re question “[went] directly t o [M.E.’s] credibility[]” because a licensed massage therapist would have training and experience “ that would certainly suggest that that person would be able to di fferentiate between someone who is receiving a massage and who is inadvertently exposed or not inadvertently exposed.” The St ate, on the other hand, argued that Mr. Zappa could adequately inquire into her perceptions of his conduct by asking questions about her education, training, a nd experience, but that inquiri ng about the level of her licensure

would lead to a “trial within a t rial” regarding whether M.E. p rovided services beyond the scope

of her license. The State ar gued that doing so would inevitabl y lead to unfair prejudice and

confusion of the issues for purposes of Evid.R. 403(A). {¶30} Under Evid.R. 403(A), otherwise relevant evidence “is not admis sible if its probative value is substantially outweighed by the danger of un fair prejudice, of confusion of the issues, or of misleading the jury.” The exclusion of relevant evidence under Evid.R. 403(A)

rests within the discre tion of the trial court. State v. Skatzes , 104 Ohio St.3d 195, 2004-Ohio6391, ¶ 107, citing State v. Sage , 31 Ohio St.3d 173 (1987), para graph two of the syllabus. When considering a trial court’s decision to exclude evidence u nder Evid.R. 403(A), this Court

is “mindful that ‘the exclusion of evidence under Evid.R. 403(A ) is even more of a judgment call than determining whether the evidence has logical relevance in the first place.’” State v. Thompson , 9th Dist. Wayne No. 15AP0016, 2016-Ohio-4689, ¶ 25, quoting State v. Yarbrough , 95 Ohio St.3d 227, 2002-Ohio-2126, ¶ 40. {¶31} This Court notes that after the trial court granted the motion in limine, Mr. Zappa waived his right to a jury trial and was tried to the bench. D uring trial, the trial court permitted Mr. Zappa to inquire fully regarding M.E.’s education, training , and experience—the very topics13

that he sought to address by cro ss-examining her regarding the level of her licensure. Indeed, it appears that in his arguments addressing the motion in limine, Mr. Zappa used M.E.’s level of licensure as a proxy for her education, training, and experienc e. Further, as noted in the discussion of Mr. Zappa’s first and second assignments of error , the evidence in this case is such that a reasonable massage provi der of any education, training, and experience could be affronted for purposes of R.C. 2907.09(A). {¶32} The Court cannot conclude that th e exclusion of M.E.’s licensur e was an abuse of

the trial court’s discretion under these circumstances. Mr. Za ppa’s third assignment of error is

overruled.

ASSIGNMENT OF ERROR NO. 4

THE TRIAL COURT ERRED TO THE PREJUDICE OF MR. ZAPPA BY SENTENCING HIM TO THE MAXIMUM 60 DAYS IN JAIL, UNSUSPENDED, AFTER SENTENCING HIM TO TWENTY-FOUR MONTHS COMMUNITY CONTROL, IN VIOLATION OF OHIO LAW AND MR. ZAPPA’S RIGHT TO DUE PROCESS OF LAW, AND HIS RIGHT AGAINST IMPOSITION OF EXCESSIVE SENTENCES SET FORTH IN THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION AND ARTICLE I, SECTION 9 OF THE OHIO CONSTITUTION. {¶33} In his fourth assignment of error, Mr. Zappa argues that the tr ial court erred by sentencing him to sixty days in jail and imposing twenty-four m onths of community control.

The State has conceded error i n this regard, and this Court agr ees that the trial court erred. {¶34} A trial court has discretion when imposing sentence for misdeme anors. R.C. 2929.22(A). See also State v. Senz , 9th Dist. Medina No. 17CA0001-M, 2018-Ohio-628, ¶ 34, quoting State v. Woody , 9th Dist. Lorain No. 14CA010679, 2016-Ohio-631, ¶ 15, citing State v.

Schneider , 9th Dist. Wayne No. 09CA0026, 2009-Ohio-6025, ¶ 6. Consequen tly, we review14

misdemeanor sentences for an abus e of discretion unless the sen tence is contrary to law. Senz at ¶ 34, quoting Woody at ¶ 15, quoting Schneider at ¶ 6. {¶35} R.C. 2929.22(A) provides that unless another sentence is prohib ited or mandatory, “a court that imposes a sentence upon an offender for a misdeme anor may impose on the offender any sanction or combina tion of sanctions under section s 2929.24 to 2929.28 of the

Revised Code.” A violation of R.C. 2907.09(A)(1) is a fourth-d egree misdemeanor, while a violation of R.C. 2907.09(A)(2) is a third-degree misdemeanor. Thus, Mr. Zappa could be sentenced to jail for a maximum of thirty days for violating R .C. 2907.09(A)(1) and sixty days for violating R.C. 2907.09(A)(2). See R.C. 2929.24(A)(3)/(4). {¶36} A trial court also has the discretion to “substitute one or mor e community control sanctions under [R.C. 2929.26] o r [R.C. 2929.27] for any jail d ays that are not mandatory jail days.” R.C. 2929.24(H). Under R. C. 2929.25(A)(1)(a), a trial court may directly impose a community control sanction upon an offender, which may include a residential community control sanction under R.C. 2929.26( A)(1). In the alternative, a trial court may impose a jail term authorized by R.C. 2929.24, “suspend all or a portion of t he jail term im posed,” and place the offender on community control. R.C. 2929.25(A)(1)(b). See , e.g. , State v. Henry , 9th Dist. Summit No. 27758, 2016-Ohio-680, ¶ 32; State v. Pope , 9th Dist. Medina No. 13CA0031-M, 2014-Ohio-2864, ¶ 10. {¶37} In reviewing Mr. Zappa’s sentence, this Court is cognizant of t he Supreme Court of Ohio’s admonition that judges “‘must consider each offense i ndividually and impose a separate sentence for each offense.’” State v. Pari , 9th Dist. Summit No. 28098, 2017-Ohio4165, ¶ 35, quoting State v. Saxon , 109 Ohio St.3d 176, 2006-Ohio-1245, ¶ 9. With that principle in mind, it appears that the trial court imposed a fi ne of $200 for the violation of R.C.15

2907.09(A)(1). With respect to the violation of R.C. 2907.09(A )(2), it appears that the trial court fined Mr. Zappa $500, sentenced him to sixty days in jail, and placed him on community control for twenty-four months. 3 In other words, the trial court sentenced Mr. Zappa under R.C

. 2929.25(A)(1)(b) but failed to “su spend all or a portion of the jail term imposed” in conjunction with placing him under a community control sanction. See R.C. 2929.25(A)(1)(b). A trial court is not authorized to impose comm unity control in this manner. See Pope at ¶ 11. {¶38} Mr. Zappa’s argument that the trial court erred by imposing the maximum jail

sentence available for a viol ation of R.C. 2907.09(A)(2) and pl acing him under community control without suspending any of his jail term is well taken, and his fourth assignment of error is

sustained on that basis. His rem aining arguments are premature

. {¶39} Mr. Zappa’s fourth assignme nt of error is sustained.

III. {¶40} Mr. Zappa’s first, second, and thi rd assignments of error are o verruled. His fourth assignment of error is sustaine d. The judgment of the Wayne Co unty Municipal Court is affirmed in part and reversed in part, and this matter is reman ded to the trial court for proceedings consistent with this opinion. Judgment affirmed in part, reversed in part, and cause remanded.

3 The form journal entry used by the trial court is somewhat amb iguous in this regard. It indicates that Mr. Zappa was placed on community control and th at a “Residentia l Sanction” of “60 days” was imposed. The trial court explicitly informed Mr. Zappa, “You are going to be sentenced to sixty days in the Wayne County Jail to begin immed iately.” The parties do not dispute that the trial court sentenced Mr. Zappa to jail.16

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Wayne County Municipal Court, County of Wayne , State of Ohio, to carry this judgment into execution. A certified copy of this journal en try shall constitu te the manda te, pursuant to App.R. 27. Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file stamped by the Clerk of the Cour t of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the pa rties and to make a notation of the mailing in the docket , pursuant to App.R. 30. Costs taxed equa lly to both parties.

L YNNE S. CALLAHAN FOR THE COURT

CARR, P. J. TEODOSIO, J. CONCUR.

APPEARANCES: NATALIE M. NIESE, Attorney at Law, for Appellant. JOHN E. JOHNSON, JR., Attorne y at Law, for Appellant. DANIEL R. LUTZ, Prosecuting Attorney, and FREELAND OLIVERIO, As sistant Prosecuting Attorney, for Appellee.