[Cite as State v. Daniels, 2011-Ohio-5603.]

 IN THE COURT OF APPEALS OF OHIO 

 FOURTH APPELLATE DISTRICT 

 SCIOTO COUNTY 

STATE OF OHIO, : 

Plaintiff-Appellee, : Case No. 11CA3423 

 

vs. : 

JON DANIELS, : DECISION AND JUDGMENT ENTRY 

 

 

Defendant-Appellant. : 

_________________________________________________________________ 

 APPEARANCES: 

COUNSEL FOR APPELLANT: Richard M. Nash, Jr., 602 Chillicothe Street, Ste. 700, 

Portsmouth, Ohio 45662 

COUNSEL FOR APPELLEE: Mark Kuhn, Scioto County Prosecuting Attorney, and Pat 

Apel, Scioto County Assistant Prosecuting Attorney, 602 

Seventh Street, Room 310, Portsmouth, Ohio 45662 

_________________________________________________________________ 

CRIMINAL APPEAL FROM COMMON PLEAS COURT 

DATE JOURNALIZED: 10-24-11 

ABELE, J. 

{¶ 1} This is an appeal from a Scioto County Common Pleas Court judgment of 

conviction and sentence. A jury found Jon Daniels, defendant below and appellant herein, guilty 

of (1) assault in violation of R.C. 2903.13(A)&(C)(3), and (2) obstructing official business in 

violation of R.C. 2921.31(A)&(B). 

{¶ 2} Appellant assigns the following errors for review: 

FIRST ASSIGNMENT OF ERROR: 

“THE TRIAL COURT ERRED IN DENYING APPELLANT’S 

MOTION FOR MISTRIAL.” 
Scioto App. No. 11CA3423 2

SECOND ASSIGNMENT OF ERROR: 

“THE TRIAL COURT ERRED WHEN IT ENTERED 

JUDGMENT AGAINST THE APPELLANT WHEN THE 

EVIDENCE WAS INSUFFICIENT TO SUSTAIN A 

CONVICTION AND THE CONVICTION WAS AGAINST THE 

MANIFEST WEIGHT OF THE EVIDENCE.” 

THIRD ASSIGNMENT OF ERROR: 

“THE TRIAL COURT ABUSED ITS DISCRETION WHEN THE 

SENTENCE IT IMPOSED WAS BASED ON FACTORS WHICH 

WERE UNDISCLOSED, AND ON ALLEGATIONS WHICH 

WERE NEITHER CHARGED NOR TRIED.” 

FOURTH ASSIGNMENT OF ERROR: 

“THE TRIAL COURT ERRED IN IMPOSING A SENTENCE 

CONTRARY TO LAW.” 

{¶ 3} On the afternoon of July 17, 2009, the Scioto County Sheriff's Department 

dispatched Deputy Kevin Metzler to meet Jessica Daniels, appellant’s wife, and several of her 

family members. The purpose of this contact involved serving appellant with a civil protection 

order and taking custody of the couple’s children. At the couple’s home, an altercation occurred 

between Daniels and appellant’s mother. As soon as Deputy Metzler got that situation under 

control, appellant came to the scene and all “chaos” broke loose, with appellant shouting and 

swearing that he was “not fucking doing this again.” 

{¶ 4} After Deputy Metzler ordered Daniels and her family to return to their cars, he 

focused his attention on calming appellant and his family. Although Deputy Metzler and 

appellant's own mother advised appellant to calm down, appellant insisted that there “aint [sic] 

no one taking his fucking kids.” When Deputy Metzler stepped onto to the porch to serve the 

court order, appellant shoved him down the stairs. Although not injured from the shove, Deputy 

Metzler dropped both his flashlight and the papers that he intended to serve on appellant. 
Scioto App. No. 11CA3423 3

{¶ 5} On August 19, 2009, the Scioto County Grand Jury returned an indictment that 

charged appellant with (1) assault on a peace officer in violation of R.C. 2903.13(A)&(C)(3), and 

(2) obstructing official business in violation of R.C. 2921.31(A)&(B). Appellant pled not guilty 

and the matter came on for a two day jury trial. 

{¶ 6} At trial, Deputy Metzler, Jessica Daniels and Faith Pennington (Daniels' mother) 

recounted their version of the events. The defense, however, offered a diametrically different 

theory and portrayed Deputy Metzler and Faith Pennington as the aggressors in this incident. 

Linda Williams, appellant’s mother, described how their vehicles came speeding onto the 

property. Williams also agreed with counsel that the event was similar to the 1993 Alcohol, 

Tobacco and Firearm (ATF) assault in Waco, Texas. Both Williams and appellant characterized 

Metzler and Pennington as the aggressors. Appellant also denied shoving Metzler, and his 

denial was corroborated by Matthew Richendollar, a friend, who claimed that he observed the 

incident. 

{¶ 7} After hearing the evidence and counsels' arguments, the jury returned guilty 

verdicts on both charges. The trial court sentenced appellant to serve thirty days in jail, with 

credit for twenty-nine days already served, together with a five year community control sanction. 

 This appeal followed. 

 I 

{¶ 8} Appellant’s first assignment of error involves the trial court's denial of a motion 

for a mistrial. Deputy Metzler, on direct examination, was questioned about the petition for the 

Civil Protection Order that he was directed to serve on appellant. Jessica Daniels, on cross 

examination, was also asked about that document. On re-direct, the prosecutor played an audio 

tape of a telephone message that appellant had left for Daniels. That tape contained swearing, 
Scioto App. No. 11CA3423 4

as well as appellant's threat to take a sledge hammer to his wife’s cell phone. After only a few 

sentences, however, the trial court ordered the tape be shut off and directed the jury to disregard 

it. Appellant requested a mistrial, but the court denied the motion. 

{¶ 9} On appeal, appellant argues that the trial court erred by denying his motion. The 

prosecution asserts that this evidence is relevant and admissible, and, thus, no grounds existed for 

a mistrial. For purposes of our review, we will assume, arguendo, that the evidence was 

improper and inadmissible. That said, we are not persuaded that the trial court should have 

granted the request for a mistrial. 

{¶ 10} Our analysis begins with the well-settled premise that the decision whether to 

grant a mistrial rests within a trial court's sound discretion, and its decision will not be reversed 

absent an abuse of that discretion. State v. Murphy, Scioto App. No. 09CA3311, 

2010-Ohio-5031, at ¶83; State v. Wharton, Ross App. No. 09CA3132, 2010-Ohio-4775, at ¶25. 

An abuse of discretion is more than an error of law or judgment; rather, it implies that a court's 

attitude is unreasonable, arbitrary or unconscionable. State v. Clark (1994), 71 Ohio St.3d 466, 

470, 644 N.E.2d 331; State v. Moreland (1990), 50 Ohio St.3d 58, 61, 552 N.E.2d 894. When 

reviewing a matter under the abuse of discretion standard of review, appellate courts must not 

substitute their judgment for that of the trial court. State ex rel. Duncan v. Chippewa Twp. 

Trustees (1995), 73 Ohio St.3d 728, 732, 654 N.E.2d 1254; In re Jane Doe 1 (1991), 57 Ohio 

St.3d 135, 137-138, 566 N.E.2d 1181. 

{¶ 11} Generally, a mistrial should not be granted due to some error or irregularity unless 

an accused's substantial rights are adversely affected. Wharton, supra at ¶25; State v. 

Thompson, Ross App. No. 08CA3032, 2009-Ohio-1115, at ¶ 8; State v. Nichols (1993), 85 Ohio 

App.3d 65, 69, 619 N.E.2d 80. In the case sub judice, appellant asserts that the evidence did 
Scioto App. No. 11CA3423 5

adversely affect his substantial rights because it involved evidence of other bad acts that may 

have prejudiced the jury into thinking he is a violent person. 

{¶ 12} Appellant’s argument would arguably have greater weight if he was charged with 

domestic violence perpetrated against his wife. He was not. Rather, appellant was charged 

with assault and obstructing official business. As an exasperated trial court noted on more than 

one occasion, each side attempted to turn “this thing into a domestic violence case.” However, 

the central question was whether appellant assaulted Deputy Metzler. Although the audio tape 

may have arguably prejudiced a jury considering an act of domestic violence against his wife, 

that is not quite the same thing as a propensity to assault a peace officer. 

{¶ 13} We further note that the trial court instructed the jury to disregard the audio tape. 

 A jury is presumed to follow all of a court's curative instructions. Wharton, supra at ¶26; State 

v. Murphy, Scioto App. No. 09CA3311, 2010-Ohio-5031, at ¶81; State v. Dixon, Scioto App. 

No. 09CA3312, 2010-Ohio-5032, at ¶43. This presumption is rebuttable, but, again, because 

appellant was charged with assaulting Deputy Metzler, we are not persuaded it has been rebutted 

here and we are not persuaded that appellant has been unduly prejudiced in his trial for assaulting 

a peace officer. 

{¶ 14} Finally, in view of the testimony from Deputy Metzler and Jessica Daniels that 

appellant shoved Metzler down the stairs, we are not persuaded that the outcome of trial would 

have been otherwise but for the playing of the audio tape for the jury. See State v. Baird (Jul. 

21, 1985), Clermont App. No. CA84-12-092; State v. Houston (Nov. 28, 1979), Hamilton App. 

No. 317. Considerable evidence was adduced to establish the elements of the offenses and we 

do not believe that the jury would have returned a different verdict if the tape had not been 

played. 
Scioto App. No. 11CA3423 6

{¶ 15} Therefore, for these reasons, we do not believe that the trial court's decision to 

overrule the motion for mistrial constitutes an abuse of discretion. Thus, we hereby overrule 

appellant’s first assignment of error. 

 II 

{¶ 16} In his second assignment of error, appellant asserts that insufficient evidence 

supports his convictions. Appellant further asserts that his convictions are against the manifest 

weight of the evidence.1

 We disagree with appellant. 

{¶ 17} When reviewing the sufficiency of the evidence, appellate courts look to the 

adequacy of the evidence and whether that evidence, if believed by the trier of fact, supports a 

finding of guilt beyond a reasonable doubt. State v. Thompkins (1997), 78 Ohio St.3d 380, 386, 

678 N.E.2d 541; State v. Jenks (1991), 61 Ohio St.3d 259, 273, 574 N.E.2d 492. In other words, 

after viewing the evidence, and each inference that can reasonably drawn therefrom, in a light 

most favorable to the prosecution, could any rational trier of fact have found all essential 

elements of the offense beyond a reasonable doubt? See State v. Were, 118 Ohio St.3d 448, 890 

N.E.2d 263, 2008-Ohio-2762; at ¶132; State v. Hancock, 108 Ohio St.3d 57, 840 N.E.2d 1032, 

2006-Ohio-160, at ¶34; State v. Jones (2000), 90 Ohio St.3d 403, 417, 739 N.E.2d 300. 

{¶ 18} R.C. 2903.13(A)&(C)(3) proscribes a knowing attempt to cause physical harm to 

a peace officer in the performance of his duty. At trial, Deputy Metzler testified that in the 

process of serving a court order to remove the children from appellant’s home, appellant “lunged 

forward and hit [him] with both hands” and knocked him three feet back down the stairs of the 

porch. This testimony is sufficient to prove the elements of that offense. 

 1 Appellant correctly notes in his brief that a sufficiency of the evidence argument is fundamentally different from a 
Scioto App. No. 11CA3423 7

{¶ 19} R.C. 2921.31(A)&(B) proscribes impeding a public official in the performance of 

his lawful duty and, in doing so, creating a risk of physical harm. Again, Deputy Metzler 

testified that he almost fell when appellant pushed him down the stairs. The documents he 

intended to serve, and his flashlight, fell to the ground. When asked if he was able to serve the 

documents on appellant that evening, Deputy Metzer replied “No.” This testimony constitutes 

sufficient evidence to prove the elements of the offense. 

{¶ 20} The gist of appellant’s argument in this assignment of error appears to be that the 

jury should not have believed Metzler. Appellant cites his own trial testimony where he 

explained he did not shove Metzler at all, and that the only contact he had with the deputy was 

putting his “arm to the side” to get around Metzler so that he could prevent Faith Pennington (his 

mother-in-law) from entering the house and taking his son. Appellant explained “I didn’t even 

mean to touch the deputy.” Appellant argues that this not only negates all the evidence adduced 

against him, but renders it impossible to show the requisite mens rea. 

{¶ 21} We readily concede that the parties presented to the jury entirely different versions 

of the events. However, those conflicts in the evidence involve the weight and credibility of the 

evidence, not the sufficiency of the evidence. It is the duty of the trier of fact to resolve any 

conflicts in the evidence presented at trial. Deputy Metzler’s testimony, if the trier of fact so 

believed, constitutes sufficient evidence to support a conviction for both offenses. Thus, we 

reject the first part of his argument. 

{¶ 22} As to appellant’s claim that his conviction is against the manifest weight of the 

evidence, we note that reviewing courts will not reverse convictions on manifest weight of the 

 

weight of the evidence argument. See State v. Thompkins (1997), 78 Ohio St.3d 380, 386, 678 N.E.2d 541. 
Scioto App. No. 11CA3423 8

evidence grounds unless it is obvious that the jury lost its way and created such a manifest 

miscarriage of justice that reversal and a new trial are required. See State v. Earle (1997), 120 

Ohio App.3d 457, 473, 698 N.E.2d 440; State v. Garrow (1995), 103 Ohio App.3d 368, 370-371, 

659 N.E.2d 814. 

{¶ 23} Here again, appellant’s argument rests on the premise that his testimony was more 

credible than Deputy Metzler. However, we point out that the weight and credibility of the 

evidence are issues that the trier of fact must determine. See State v. Frazier, 115 Ohio St.3d 

139, 873 N.E.2d 1263, 2007-Ohio-5048, at ¶106; State v. Dye (1998), 82 Ohio St.3d 323, 329, 

695 N.E.2d 763. The jury, sitting as the trier of fact, is free to believe all, part or none of the 

testimony of any witness who appears before it. State v. Colquitt, 188 Ohio App.3d 509, 936 

N.E.2d 76, 2010-Ohio-2210, at ¶10, fn. 1; State v. Nichols (1993), 85 Ohio App.3d 65, 76, 619 

N.E.2d 80. Of course, the underlying rationale for deference to the trier of fact on evidence 

weight and witness credibility issues is that the trier of fact is best positioned to view the 

witnesses, to observe their demeanor, gestures and voice inflections and to use those 

observations to weigh witness credibility. See Myers v. Garson (1993), 66 Ohio St.3d 610, 615, 

614 N.E.2d 742; Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 461 N.E.2d 1273. 

{¶ 24} In the case sub judice, the jury obviously found the prosecution's evidence more 

compelling than appellant’s evidence. This is well within the scope of the trier of fact's duty, 

and we find nothing in the record to persuade us that we should second-guess those findings. 

{¶ 25} To the extent that appellant claims that no risk of physical harm existed from 

shoving Deputy Metzler backwards, we disagree with appellant. Had the deputy fallen down the 

stairs or off the porch, it is conceivable that he could have sustained injury. 

{¶ 26} For these reasons, we find that (1) sufficient evidence supports appellant's 
Scioto App. No. 11CA3423 9

convictions, and (2) appellant's convictions are not against the manifest weight of the evidence. 

Thus, we hereby overrule appellant's second assignment of error. 

 III 

{¶ 27} We next proceed to appellant's fourth assignment of error wherein he asserts that 

the trial court erred by imposing sentences without specifying the underlying offenses for which 

they were imposed. On this point, the appellee concedes the error. The original and nunc pro 

tunc judgment entries both sentenced appellant to five years community control, thirty days in 

jail, counseling and a $500 fine. However, nowhere does the court specify which sentence 

corresponds to a particular offense. 

{¶ 28} If a defendant is convicted of multiple offenses, Ohio law requires the trial court 

to sentence on each individual offense. See, generally, State v. Saxon, 109 Ohio St.3d 176, 846 

N.E.2d 824, 2006-Ohio-1245, at ¶8; also see State v. Tooley, Medina App. Nos. 09CA0098–M, 

09CA0099–M & 09CA0100–M, 2011-Ohio-2449, at ¶¶ 12-13; State v. Parker, Clark App. No. 

10CA0074, 2011-Ohio-1418, at ¶87. Here, the judgment entries do not state which sentence 

apply for each crime. We also note that this is not a single, procedural technicality. Appellate 

review of a sentence requires us to engage in a two-step process. See State v. Kalish, 120 Ohio 

St.3d 23, 896 N.E.2d 124, 2008-Ohio-4912, at ¶ 4. In the first step, we must ascertain if the 

court complied with all applicable statues and rules. Id; State v. Ritchie, Pickaway App. No. 

10CA20, 2011-Ohio-164, at ¶6; State v. Lansing, Highland App. No. 09CA27, 2010-Ohio-6352, 

at ¶18. If it did, the next step is to determine whether the court's imposition of those sentences 

constitutes an abuse of discretion. Kalish, supra at ¶4. 

{¶ 29} If a trial court does not designate what punishment is attributable to a particular 

offense, an appellate court cannot review whether the trial court's sentence exceeded the 
Scioto App. No. 11CA3423 10

permissible statutory range and, thus, cannot carry out an appropriate appellate review. 

{¶ 30} Thus, we hereby sustain appellant's fourth assignment of error. 

 IV 

{¶ 31} In his third assignment of error, appellant asserts that the sentences the trial court 

handed down constitute an abuse of discretion. However, in view of our ruling under appellant's 

fourth assignment of error, and considering that this will be remanded for re-sentencing, we 

disregard this assignment of error as moot. See App.R. 12(A)(1)(c). 

{¶ 32} Having sustained appellant’s fourth assignment of error, we hereby affirm the trial 

court's judgment in part and reverse the judgment in part, vacate appellant's sentences and 

remand the matter for re-sentencing pursuant to this opinion. 

JUDGMENT AFFIRMED IN PART, REVERSED 

IN PART AND CASE REMANDED FOR 

FURTHER PROCEEDINGS CONSISTENT WITH 

THIS OPINION. 

Harsha, P.J., Concurring: 

{¶ 33} Rather than merely assuming the audio tape was inadmissible, I would expressly 

find it to be so. However, in light of the testimony of Metzler and Ms. Daniels, I conclude its 

admission was harmless beyond a reasonable doubt. I concur in judgment and opinion in all 

other regards. 

 JUDGMENT ENTRY

It is ordered that the judgment be affirmed in part, reversed in part and the case be 

remanded for further proceedings consistent with this opinion. Appellant to recover of appellee 

costs herein taxed. 

The Court finds there were reasonable grounds for this appeal. 
Scioto App. No. 11CA3423 11

It is ordered that a special mandate issue out of this Court directing Scioto County 

Common Pleas Court to carry this judgment into execution. 

If a stay of execution of sentence and release upon bail has been previously granted, it is 

continued for a period of sixty days upon the bail previously posted. The purpose of said stay is 

to allow appellant to file with the Ohio Supreme Court an application for a stay during the 

pendency of the proceedings in that court. The stay as herein continued will terminate at the 

expiration of the sixty day period. 

The stay will also terminate if appellant fails to file a notice of appeal with the Ohio 

Supreme Court in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of 

the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to 

the expiration of said sixty days, the stay will terminate as of the date of such dismissal. 

A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the 

Rules of Appellate Procedure. 

Harsha, P.J.: Concurs with Concurring Opinion 

McFarland, J.: Concurs in Judgment & Opinion 

For the Court 

BY: 

 Peter B. Abele, Judge 

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the 

time period for further appeal commences from the date of filing with the clerk.