[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. Na sh, Jr., 602 Chillicothe Street, Ste. 700, Portsmouth, Ohio 45662 COUNSEL FOR APPELLEE: Mark Kuhn, Scio to 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 C ounty Common Pleas Court judgment of conviction and sentence. A jury found Jon Daniels, defendant below and a ppellant 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 Sc ioto County Sheriff's Department dispatched Deputy Kevin Metzler to meet Jessica Daniels, appella nt’s wife, and several of her family members. The purpose of this contact i nvolved 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 Me tzler got that situation under control, appellant came to the scene and all “ch aos” 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 calmin g appellant and his family. Although Deputy Metzler and appellant's own mother a dvised appellant to calm dow n, 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 flashlig ht 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 offi cer 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 ev ents. The defense, however, o ffered a diametri cally different theory and portrayed Deputy Metzle r 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, Texa s. Both Williams and appellant characterized Metzler and Pennington as the a ggressors. Appellant also deni ed shoving Metzler, and his denial was corroborated by Matthew Richendolla r, 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, togeth er with a five year co mmunity 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 exa mination, was questioned a bout the petition for the

Civil Protection Order that he was directed to serve on appella nt. Jessica Daniels, on cross examination, was also asked about that document. On re-direct, the prosecutor played an audio tape of a telephone me ssage that appellant had le ft for Daniels. That ta pe contained swearing,Scioto App. No. 11CA3423 4

as well as appellant's threat to take a sledge hammer to his wi fe’s cell phone. After only a few sentences, however, the trial court or dered 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 tria l 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 tr ial court's sound discre tion, 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 revi ew, appellate c ourts 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 e rror 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 didScioto App. No. 11CA3423 5

adversely affect his substantial rights because it involved evidence of other bad acts that may have prejudiced the jury into th inking he is a violent person. {¶ 12} Appellant’s argument would ar guably have greater weight if he was charged with domestic violence perpetrated agai nst his wife. He was not. Rather, appellant was charged with assault and obstructing offici al business. As an exasperate d trial court noted on more than one occasion, each side attempted to turn “this thing into a domestic vi olence case.” However, the central question was whether appellant assaulted De puty Metzler. Although the audio tape may have arguably prejudiced a jury considerin g an act of domestic vi olence 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 instruct ed 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 presum ption 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 th at appellant has been unduly prejudi ced 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 persuade d that the outcome of trial would have been otherwise but for the playing of th e 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 es tablish 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 be lieve that the trial court's decision to

overrule the motion for mistrial c onstitutes an abuse of discreti on. Thus, we hereby overrule appellant’s first assign ment of error.

II {¶ 16} In his second assignment of error, appe llant asserts that insufficient evidence supports his convictions. Appellant further asserts that his c onvictions 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 whet her that evidence, if believed by the trier of fact, supports a finding of guilt beyond a reas onable 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 ra tional trier of fact ha ve 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 appe llant’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 aScioto 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 ri sk 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 a ssignment of error appears to be that the jury should not have believed Me tzler. Appellant cites his own trial testimony where he explained he did not shove Metzle r at all, and that the only cont act 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 th at 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 presente d 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 suppor t 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 th e manifest weight of the evidence, we note that reviewing courts will not reverse convictions on ma nifest weight of the

weight of the evidence argu ment. 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 argu ment 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 app ears 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 underlyi ng 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 in flections 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 obvious ly 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 th at no risk of physical harm existed from shoving Deputy Metzler backwards, we disagree with appellant. Had th e deputy fallen down the stairs or off the porch, it is conceivabl e that he could have sustained injury. {¶ 26} For these reasons, we find that (1) su fficient evidence supports appellant'sScioto App. No. 11CA3423 9

convictions, and (2) appellant's c onvictions are not against the mani fest weight of the evidence. Thus, we hereby overrule appellant's second a ssignment of error.

III {¶ 27} We next proceed to appellant's fourth assi gnment of error wherein he asserts that the trial court erred by imposin g sentences without specifying th e underlying offenses for which they were imposed. On this point, the appellee concedes the error. The original and nunc pro tunc judgment entries both senten ced appellant to five years comm unity 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 o ffenses, Ohio law requi res 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 judg ment 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 th e 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 determin e whether the court's impos ition of those sentences

constitutes an abuse of discretion. Kalish , supra at ¶4. {¶ 29} If a trial court does not designate what puni shment is attributab le to a particular offense, an appellate court cannot review whether the tria l court's sentence exceeded theScioto App. No. 11CA3423 10

permissible statutory range and, thus, cannot carry out an appr opriate appellate review. {¶ 30} Thus, we hereby sustai n appellant's fourth a ssignment of error.

IV {¶ 31} In his third assignment of e rror, 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 erro r as moot. See App.R. 12(A)(1)(c). {¶ 32} Having sustained appellant’s f ourth assignment of error, we hereby affirm the trial court's judgment in part and reverse the judg ment in part, vacate appellant's sentences and

remand the matter for re-sentenc ing 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 ta pe was inadmissible, I would expressly find it to be so. However, in light of the tes timony of Metzler and Ms. Daniels, I conclude its admission was harmless beyond a r easonable 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 c onsistent with this opinion. A ppellant to recover of appellee costs herein taxed.

The Court finds there were reas onable 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 releas e upon bail has been previously granted, it is continued for a period of sixty days upon the bail pr eviously 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 da y period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Oh io Supreme Court dismisse s 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 Appella te 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 documen t constitutes a final j udgment entry and the time period for further appeal commences from the date of filing with the clerk.