[Cite as State v. Daylong, 2021-Ohio-4192.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 Plaintiff-Appellee, : No. 19AP-279 (C.P.C. No. 19CR-410)

v. : 

 (REGULAR CALENDAR) 

Donald A. Daylong, : 

 Defendant-Appellant. : 

 

D E C I S I O N 

Rendered on November 30, 2021 

 

On brief: [G. Gary Tyack], Prosecuting Attorney, and 

Seth L. Gilbert, for appellee. Argued: Seth L. Gilbert.

On brief: Carpenter Lipps & Leland LLP, Kort Gatterdam, 

and Erik P. Henry, for appellant. Argued: Kort Gatterdam.

 

APPEAL from the Franklin County Court of Common Pleas 

LUPER SCHUSTER, J. 

{¶ 1} Defendant-appellant, Donald A. Daylong, appeals from a judgment entry of 

the Franklin County Court of Common Pleas finding him guilty, pursuant to jury verdict, of 

assault, attempted burglary, attempted trespass in a habitation, disrupting public services, 

menacing by stalking, and violating a protection order. For the following reasons, we 

affirm.

I. Facts and Procedural History 

{¶ 2} By indictment filed January 25, 2019, plaintiff-appellee, State of Ohio, 

charged Daylong with one count of assault in violation of R.C. 2903.13, a first-degree 

misdemeanor; one count of attempted burglary in violation of R.C. 2923.02 and 2911.12, a 

third-degree felony; one count of attempted trespass in a habitation in violation of R.C. 
No. 19AP-279 2 

2923.02 and 2911.12, a fifth-degree felony; one count of disrupting public services in 

violation of R.C. 2909.04, a fourth-degree felony; one count of menacing by stalking in 

violation of R.C. 2903.211, a fourth-degree felony; and one count of violating a protection 

order in violation of R.C. 2919.27, a fifth-degree felony. The indictment related to 

interactions Daylong had with his former girlfriend, A.M., between September 17 and 

October 1, 2018. Daylong entered a plea of not guilty. 

{¶ 3} Prior to trial, on February 5, 2019, the state filed a notice of its intention to 

use evidence, pursuant to Evid.R. 404(B) and R.C. 2945.59, of events from 2016 involving 

Daylong and another former girlfriend. Daylong filed a motion to exclude the other-acts 

evidence. Following a hearing, the trial court issued a February 6, 2019 decision and entry 

granting the state's request to use other-acts evidence at trial. 

{¶ 4} At a jury trial beginning March 4, 2019, A.M. testified that she began a 

romantic relationship with Daylong in July 2018 after meeting him at their place of 

employment. A.M. said the relationship moved quickly and that Daylong spent a lot of time 

at her apartment while they were dating. After they started dating, A.M. said Daylong left 

their mutual employer for a new job with a different company. During their relationship, 

A.M. said Daylong offered to give her some money since he spent so much time at her 

apartment, and he asked her for a voided check. A.M. said she thought Daylong would just 

put "a little bit of money" in her account as a one-time occurrence. (Tr. Vol. 2 at 91.) 

Instead, A.M. said she was surprised to learn that Daylong used the voided check to arrange 

for his paycheck to be deposited directly into her account. 

{¶ 5} A.M. testified that on September 14, 2018, which was a Friday, Daylong told 

her that "he had been convicted of Breaking and Entering against an ex-girlfriend." (Tr. 

Vol. 2 at 86.) After learning of Daylong's past, A.M. said she informed him that she wanted 

to end their relationship. She said she thought about the situation some more over the 

weekend and then, after Daylong returned to her apartment inebriated and the two had 

another "falling out" on Sunday, A.M. knew she needed the relationship to be over. (Tr. 

Vol. 2 at 88.) 

{¶ 6} The next morning, September 17, 2018, A.M. said she told Daylong he needed 

to remove his belongings from her apartment. When Daylong arrived that evening, A.M. 

testified she asked him to return his copy of the key to her apartment. According to A.M.'s 
No. 19AP-279 3 

testimony, Daylong told her he would only return the key if she gave him $1,000. When 

A.M. told Daylong she was not going to give him the money, she said she moved to take the 

key from Daylong's hand, but Daylong grabbed her hand and squeezed it hard enough that 

she thought her bones would break. When A.M. told Daylong he was hurting her, she said 

Daylong grabbed her other arm and pushed her up against the door, causing the doorknob 

to hit her back. A.M. testified she then ordered Daylong to leave, and as soon as he left her 

apartment, she immediately called her apartment's property manager to change her lock. 

{¶ 7} A.M. said that the maintenance staff arrived within 30 minutes to change her 

locks but that Daylong remained in her apartment parking lot near his work van during this 

time. A.M testified she then received a text message from Daylong saying "hum, that's 

strange. Your garage door is wide open." (Tr. Vol. 2 at 95.) A.M. said she always kept her 

garage door closed and locked. A.M. said Daylong continued to send her text messages, 

writing that he would return to collect his belongings. In response, A.M. said she first asked 

for her key but then sent him another text telling him not to come over because she was 

getting her locks changed. 

{¶ 8} A.M. called 911 to report the incident, and the state played an audio recording 

of the 911 call during the trial. During the call, A.M. told the dispatcher that Daylong was 

trying to get into her apartment, harassing her, and continuing to send her text messages 

indicating he would "track [me] down" and that he knew how to find her when she was with 

her kids. (Tr. Vol. 2 at 100.) A.M. said she did not feel safe even after she changed the locks. 

A.M. also told the dispatcher that she gave Daylong $200 that evening but that he was 

continuing to refuse to give her the key until she paid him $1,000. 

{¶ 9} When police responded to the scene, A.M. said she went with the officer to 

inspect her garage, and she said the door was open and the lock on the garage door was 

"busted." (Tr. Vol. 2 at 96.) The responding officer testified A.M. was "nervous and scared." 

(Tr. Vol. 3 at 350.) Police did not note any injuries on A.M. at the time. Throughout the 

evening, A.M. said Daylong continued to send her threatening text messages, including 

listing various establishments where he knew he could find her. Additionally, A.M. said 

Daylong left her several voicemail messages that night asking for another chance. In 

between those voicemails, A.M. said she spoke to Daylong on the phone and he told her he 

was having an "episode," that he was "just going to keep on driving," and that he had already 
No. 19AP-279 4 

informed his employer he would not be in to work the next day. (Tr. Vol. 2 at 115.) The 

state introduced GPS records from Daylong's employer confirming that Daylong's work van 

was at A.M.'s apartment complex the night of September 17, 2018 and that the van was near 

the apartment at the time he left one of the voicemails. 

{¶ 10} A.M. testified that the next day, September 18, 2018, she noticed she had two 

bruises and a scrape on her arm from the altercation. Nonetheless, A.M. said she allowed 

Daylong to come over that evening because she was afraid he would hurt himself. A.M. 

testified that Daylong spent the night with her that evening. 

{¶ 11} The next day, September 19, 2018, A.M. said she went to work and that 

Daylong wanted to come back to her apartment when she got home. She told him, however, 

that she was going to dinner with her children and that he was not invited, that he was not 

to be around the restaurant, and that he was not to be at her apartment. A.M. did not see 

Daylong that day, but she testified he left her another voicemail that day indicating he 

would call her son if she refused to talk to Daylong. 

{¶ 12} On September 20, 2018, A.M. said she agreed to let Daylong come to her 

apartment so they could talk about everything that had transpired. A.M. said Daylong 

ended up spending the night with her that night. The next morning, September 21, 2018, 

A.M. determined the relationship was over for good, and she testified that she told Daylong 

to remove all of his belongings from the apartment. A.M. said she waited to go to work until 

Daylong left her apartment. 

{¶ 13} During the day of September 21, 2018, A.M. said Daylong repeatedly called 

her and sent her several text messages, including asking her where his bottle of prescription 

Adderall was, but A.M. said she ignored him. While she was at work, A.M. said Daylong 

showed up uninvited and asked for her apartment keys. A.M. testified her boss intervened 

and ordered Daylong to leave the property, and A.M. said her boss instructed her to go 

home and search for Daylong's medication. A.M. said she drove home and found the 

medication, but she admitted to emptying some of the Adderall capsules and replacing the 

medication with sugar. She then drove to a nearby restaurant where she knew Daylong 

was, rolled down her window, and threw the bottle of pills at him. Daylong filed a police 

report for the missing pills. A.M. testified she told police that she had returned the pills to 
No. 19AP-279 5 

Daylong and, although she initially did not tell police she had altered some of the pills, she 

testified that she later admitted as much to a detective. 

{¶ 14} During the early morning hours of September 22, 2018, A.M. said she awoke 

to the sound of her doorknob rattling and she could see the lock "wiggling." (Tr. Vol. 2 at 

166.) A.M. said she had been sleeping on her couch with a knife and had wedged an end 

table between her door and the staircase because she was so scared of Daylong. A.M. 

testified she looked out her window and saw the silhouette of a person with a very 

distinctive gait and wearing a hat, both characteristics leading her to conclude it was 

Daylong. A.M. called 911 and police responded, though police did not observe any damage 

to the door or signs of forced entry, nor did police locate Daylong in the area. 

{¶ 15} The next day, September 23, 2018, A.M. said her friend, Dennis Brodbeck, 

found a letter from Daylong in A.M.'s doorknocker. GPS records showed Daylong's work 

van was at the apartment complex that morning around 1:00 a.m. A.M. said she spent the 

rest of the day with Brodbeck and, when she returned home, she found a second letter from 

Daylong in her doorknocker. Brodbeck came in the apartment with A.M. and the two were 

watching football when A.M. said her power went out. A.M. testified she looked around at 

the other apartments and saw that it was only her apartment without power. While she was 

outside, A.M. said she saw Daylong looking at Brodbeck's car in A.M.'s assigned parking 

spot. A.M. said Brodbeck chased after Daylong, but Daylong ran away. At that point, A.M. 

called 911 again. When police arrived, the responding officers examined the apartment 

building's electrical box and noted that the power had been switched off to A.M.'s 

apartment. Police eventually located Daylong nearby, and they questioned him but did not 

detain him. 

{¶ 16} On September 24, 2018, A.M. said she noticed she had missed a phone call 

from the City of Columbus. When she returned the phone call, A.M. said the person told 

her that no one had called her. Later that day, A.M. said she received another phone call 

that appeared to be from the City of Columbus. A.M. said she answered the phone but that 

it was Daylong impersonating a police officer. After that phone call, A.M. said Daylong 

called her three more times under the guise of phone calls from the City of Columbus. That 

day, A.M. left work and obtained an ex parte civil protection order against Daylong. A.M. 

said she had informed Daylong's employer that she was going to seek a protection order 
No. 19AP-279 6 

and that, shortly after that phone call, Daylong showed up at the courthouse while she was 

there. The protection order required Daylong to stay at least 500 feet away from A.M. 

{¶ 17} After obtaining the protection order, A.M. testified she did not encounter 

Daylong again until October 1, 2018. After work that day, A.M. said she went to the 

Rooster's restaurant in Hilliard but when she arrived, she saw Daylong's work van in the 

parking lot. When she entered the restaurant, A.M. said she saw Brodbeck. A.M. testified 

that shortly after entering the restaurant, Daylong left the parking lot. However, A.M. said 

about 20 minutes later she noticed Daylong's vehicle pull in the parking lot again, 

approximately 300 feet away from where A.M. was sitting in the restaurant, and Daylong 

exited his vehicle and began pacing in the parking lot. A.M. said Brodbeck then went 

outside to confront Daylong, and Daylong then left the area. 

{¶ 18} The state also presented the testimony of A.B., who dated Daylong from 2014 

to 2016. A.B. testified that after her relationship with Daylong ended in May 2016, he 

repeatedly called her after she blocked his phone number, sent her hundreds of emails, left 

beer cans by her porch, drove by her home, parked near her backyard, contacted her 

employer, made phone calls impersonating the police department's non-emergency line, 

removed light bulbs from her home's exterior light fixtures, disturbed her home's circuit 

breaker, removed one of the windows to her basement, broke into her home and poured 

water on her bed, removed and disabled her security camera, attempted to drill the locks 

out of her front door, and violated the terms of a protection order she had obtained against 

him. The trial court provided the following limiting instruction related to A.B.'s testimony:

Evidence was received about the commission of crimes, 

wrongs, and acts other than the offenses with which the 

Defendant is charged in this trial. That evidence was received 

only for a limited purpose. It was not received and you may not 

consider it to prove the character of the Defendant in order to 

show that he acted in conformity with that character. 

If you find that the evidence of other crimes, wrongs, and acts 

is true and that the Defendant committed them, you may 

consider that evidence only for the purpose of deciding whether 

it proves the Defendant's motive, opportunity, intent, 

preparation, and/or plan to commit the offenses charged in 

this trial, the identity of the person who committed the offenses 
No. 19AP-279 7 

in this trial, and the absence of mistake or accident. That 

evidence cannot be considered for any other purpose. 

Let me caution you that the evidence of the scheme, plan, or 

system is only one of the things you are to consider in 

determining identity. The State must prove identity beyond a 

reasonable doubt. If you find that the Defendant committed 

the other act, you may not presume that he committed the acts 

charged. You may, however, consider the other acts along with 

all other evidence in deciding whether the State has proved 

beyond a reasonable doubt that the Defendant, rather than 

some other person, committed the offense charged. You may 

also decide that the State has failed to prove that a crime 

occurred at all. 

(Tr. Vol. 4 at 701-02.) 

{¶ 19} Following deliberations, the jury found Daylong guilty of all six counts. The 

trial court conducted a sentencing hearing on March 28, 2019 and, after merging the 

attempted trespassing count into the attempted burglary count, sentenced Daylong to an 

aggregate prison term of three years. The trial court journalized Daylong's convictions and 

sentence in an April 1, 2019 judgment entry. Daylong timely appeals. 

II. Assignments of Error 

{¶ 20} Daylong assigns the following errors for our review: 

[1.] The admission of other-acts testimony and evidence 

involving an ex-girlfriend violated appellant's rights to due 

process and to a fair trial as guaranteed by the United States 

and Ohio Constitutions. 

[2.] The trial court violated appellant's rights to due process 

and a fair trial when it entered a judgment of conviction based 

on insufficient evidence and against the manifest weight of the 

evidence in violation of appellant's rights under the United 

States and Ohio Constitutions. 

[3.] The trial court improperly instructed the jury on disrupting 

public services and in not allowing defense counsel to argue the 

definition of "public" to the jury in violation of appellant's due 

process rights guaranteed by the United States and Ohio 

Constitutions. 

[4.] The admission of other-acts testimony involving a prior 

conviction violated appellant's rights to due process and to a 
No. 19AP-279 8 

fair trial as guaranteed by the United States and Ohio 

Constitutions. 

III. First Assignment of Error – Other-Acts Evidence 

{¶ 21} In his first assignment of error, Daylong argues the trial court erred in 

admitting other-acts evidence from the testimony of Daylong's former girlfriend. Daylong 

asserts the state offered this testimony to prove he acted in conformity with his bad 

character, an impermissible basis to admit evidence of other acts under Evid.R. 404(B).

{¶ 22} Evid.R. 404(B) states "[e]vidence of other crimes, wrongs, or acts is not 

admissible to prove the character of a person in order to show action in conformity 

therewith." Such evidence "may, however, be admissible for other purposes, such as proof 

of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of 

mistake or accident." Evid.R. 404(B). Generally, the admission or exclusion of evidence 

lies within the sound discretion of the trial court, and we will not disturb that decision 

absent an abuse of discretion. State v. Darazim, 10th Dist. No. 14AP-203, 2014-Ohio-5304, 

¶ 16, citing State v. Issa, 93 Ohio St.3d 49, 64 (2001). An abuse of discretion implies that 

the court's attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. 

Blakemore, 5 Ohio St.3d 217, 219 (1983). However, whether other-acts evidence is 

admissible pursuant to Evid.R. 404(B) is a question of law that we review de novo. State v. 

Hartman, 161 Ohio St.3d 214, 2020-Ohio-4440, ¶ 22. If other-acts evidence is admissible 

for permissible purposes under Evid.R. 404(B), a trial court then has discretion whether to 

allow the other-acts evidence. Id., citing State v. Williams, 134 Ohio St.3d 521, 2012-Ohio5695, ¶ 17.

{¶ 23} Prior to trial, the state filed a notice of intention to present evidence relating 

to A.B., Daylong's former girlfriend, pursuant to Evid.R. 404(B) and R.C. 2945.59. The trial 

court initially ruled it would admit A.B.'s testimony with an appropriate limiting 

instruction. During trial, Daylong raised more specific objections to A.B.'s testimony 

causing the trial court to revise its ruling and exclude some of A.B.'s testimony. Daylong 

argues on appeal that the trial court erred in admitting the remaining portions of A.B.'s 

testimony, summarized above, asserting the state impermissibly used A.B.'s testimony to 

establish he acted in accordance with his bad character during his interactions with A.M.
No. 19AP-279 9 

{¶ 24} In two recent decisions, the Supreme Court of Ohio explained the proper 

framework for determining the admissibility of other-acts evidence under Evid.R. 404(B). 

See State v. Smith, 162 Ohio St.3d 353, 2020-Ohio-4441; Hartman, supra. In Smith, the 

Supreme Court stated:

Evid.R. 404(B) categorically prohibits evidence of a 

defendant's other acts when its only value is to show that the 

defendant has the character or propensity to commit a crime. 

Other-acts evidence may, however, be admissible for another 

non-character-based purpose, such as "motive, opportunity, 

intent, preparation, plan, knowledge, identity, or absence of 

mistake or accident." Id. "The key is that the evidence must 

prove something other than the defendant's disposition to 

commit certain acts." [Hartman at] ¶ 22. 

In Hartman, we provided a guide for courts to evaluate 

proposed other-acts evidence to determine whether the 

evidence connects to a permissible purpose without relying on 

any improper character inferences. The threshold question is 

whether the evidence is relevant. Id. at ¶ 24; Evid.R. 401; see 

also [Williams at] ¶ 20. As we explained in Hartman, the 

problem with other-acts evidence is rarely that it is irrelevant; 

often, it is too relevant. Hartman at ¶ 25; see 1A Wigmore, 

Evidence, Section 58.2, at 1212 (Tillers Rev.1983). In the 

Evid.R. 404(B) context, the relevance examination asks 

whether the proffered evidence is relevant to the particular 

purpose for which it is offered, as well as whether it is relevant 

to an issue that is actually in dispute. Hartman at ¶ 26-27; see 

also Huddleston v. United States, 485 U.S. 681, 686 (1988). 

Thus, courts should begin by evaluating whether the evidence 

is relevant to a non-character-based issue that is material to the 

case. If the evidence is not premised on improper character 

inferences and is probative of an issue in the case, the court 

must then consider whether the evidence's value "is 

substantially outweighed by the danger of unfair prejudice, of 

confusion of the issues, or of misleading the jury." Evid.R. 

403(A); Hartman at ¶ 29. Because other-acts evidence 

" 'almost always carries some risk that the jury will draw the 

forbidden propensity inference,' " courts should be vigilant in 

balancing the prejudicial impact of the evidence against its 

probative value. Id. at ¶ 33, quoting United States v. Gomez, 

763 F.3d 845, 857 (7th Cir.2014) (en banc). 

Smith at ¶ 36-38.
No. 19AP-279 10 

{¶ 25} Daylong argues the other-acts evidence here was not offered for any 

legitimate, non-propensity purposes. The state responds, however, that A.B.'s testimony 

provided evidence of Daylong's modus operandi, and, as such, the trial court properly 

admitted the evidence as proof of Daylong's identity as the perpetrator. As the Supreme 

Court explained in Hartman, evidence of the defendant's modus operandi or "behavioral 

fingerprint" is inadmissible unless the question of the perpetrator's identity is an issue at 

trial. Hartman at ¶ 36-39. " 'Modus operandi' literally means method of working," and "is 

evidence of signature, fingerprint-like characteristics unique enough 'to show that the 

crimes were committed by the same person.' " Hartman at ¶ 37, citing People v. Barbour, 

106 Ill.App.3d 993, 1982 Ill. App. LEXIS 1933, 999 (May 25, 1982), and quoting 

Weissenberger, Federal Evidence, Section 404.17 (7th Ed.2019). Where identity is an issue, 

modus operandi evidence "is relevant to prove identity," as " '[e]vidence that the defendant 

had committed uncharged crimes with the same peculiar modus tends to identify the 

defendant as the perpetrator of the charged crime.' " Hartman at ¶ 37, quoting 1 

Imwinkelried et al., Courtroom Criminal Evidence, at Section 907. Thus, for other-acts 

evidence to be admissible on the question of identity, "both the other-acts evidence and the 

charged crime must involve the same distinctive, one-of-a-kind modus." (Internal 

quotations omitted.) Hartman at ¶ 37. Moreover, "[s]light differences between the current 

and other acts will not affect the admissibility of the other-acts evidence as long as it 

establishes 'a modus operandi identifiable with the defendant.' " State v. Worley, 164 Ohio 

St.3d 589, 2021-Ohio-2207, ¶ 119, quoting State v. Lowe, 69 Ohio St.3d 527, 531 (1994).

{¶ 26} Here, the state charged Daylong with assault, attempted burglary, attempted 

trespass into a habitation, disrupting public services, menacing by stalking, and violating a 

protection order. Daylong asserts his identity as the perpetrator was not at issue; instead, 

Daylong maintains his defense at trial was that A.M. was not credible and that none of the 

events happened. Though Daylong did present an argument that the events did not actually 

happen, a review of the record indicates Daylong did not present that defense at the 

exclusion of all others. Rather, Daylong made more nuanced arguments throughout trial 

and on appeal related to each of the six specific charges. 

{¶ 27} A.M. testified at trial that she did not see Daylong attempting to get into her 

residence or physically tampering with her electrical box. Daylong, in turn, argued at trial 
No. 19AP-279 11 

and on appeal that there were no eyewitnesses linking him to those incidents and that the 

state's GPS evidence did not sufficiently place him near the victim's residence during the 

pertinent time frame. We construe these circumstances as raising a legitimate dispute 

about the perpetrator's identity for the charges of attempted burglary, attempted trespass, 

and disrupting public services. Moreover, A.B.'s testimony tended to show Daylong utilized 

"the same peculiar modus" in his conduct with A.B. and with the charged conduct here, 

establishing the unique methods Daylong used to harass a former girlfriend when the 

relationship terminates. Hartman at ¶ 37. Accordingly, we conclude the trial court did not 

err in finding A.B.'s testimony was admissible as other-acts evidence of modus operandi on 

the issue of identity.

{¶ 28} Because there was a legitimate dispute about the perpetrator's identity and 

the evidence was admissible for that purpose, the court must then weigh the probative value 

of the other-acts evidence against the dangers of unfair prejudice and jury confusion. Smith

at ¶ 50; Evid.R. 403(A). Thus, the issue resolves to whether the trial court abused its 

discretion in making its Evid.R. 403(A) determination. Smith at ¶ 50, citing Hartman at 

¶ 30. In order for evidence to be deemed inadmissible pursuant to Evid.R. 403(A), the 

probative value must be minimal and the prejudicial effect must be great. State v. Hicks, 

10th Dist. No. 18AP-883, 2020-Ohio-548, ¶ 21, citing State v. Shipley, 10th Dist. No. 12AP948, 2013-Ohio-4055, ¶ 61, citing State v. Morales, 32 Ohio St.3d 252, 258 (1987).

{¶ 29} Here, Daylong argued there was neither eyewitness nor physical evidence 

connecting him to three of the six charges. The other-acts evidence, therefore, was highly 

probative of Daylong's identity. See Smith at ¶ 50 (" '[a]s the importance of the factual 

dispute for which the evidence is offered to the resolution of the case increases, the 

probative value of the evidence also increases and the risk of unfair prejudice decreases' ") 

(emphasis sic), quoting Hartman at ¶ 31. Though we are mindful that the same factual 

dispute of the question of identity did not apply to the charges of assault, menacing by 

stalking, and violating a protection order, it was for the trial court to consider the overall 

probative value of the evidence in light of the potential for any such unfair prejudice. 

Daylong did not argue that the evidence should be admissible to prove identity only for 

certain charges but instead sought exclusion of the evidence in its entirety. See State v. 

Ferguson, 10th Dist. No. 07AP-999, 2008-Ohio-6677, ¶ 60 (noting Evid.R. 105 requires a 
No. 19AP-279 12 

party to request a limiting instruction when evidence is admissible for one purpose but not 

another, and a trial court does not err in failing to provide a limiting instruction sua sponte); 

Hicks at ¶ 22 ("[a]ppellant did not object to the limiting instructions given by the trial court, 

and he has not alleged error in regard to the substance of [the limiting instructions] in this 

appeal"). 

{¶ 30} Moreover, we note that the trial court did provide a limiting instruction 

admonishing the jury not to consider the other-acts evidence as proof of Daylong's 

character. A jury is presumed to follow the instructions of the court, including limiting 

instructions. Hicks at ¶ 23, citing Shipley at ¶ 62. The limiting instruction provided here 

prevented any danger that the jury would unfairly consider the other-acts evidence as proof 

of Daylong's bad character or that he acted in accordance therewith. Hicks at ¶ 22-23. 

Nothing in the record supports a conclusion that the jury's verdict resulted from improper 

consideration of the other-acts evidence. Given the relevance and probative nature of the 

other-acts evidence here, and in consideration of the trial court's limiting instruction, we 

find no unfair prejudice arising from A.B.'s testimony. Accordingly, the trial court did not 

abuse its discretion in admitting the other-acts evidence. 

{¶ 31} For these reasons, we overrule Daylong's first assignment of error. 

IV. Second Assignment of Error – Sufficiency and Manifest Weight of the 

 Evidence 

{¶ 32} In his second assignment of error, Daylong argues there was insufficient 

evidence to support his convictions and that his convictions are against the manifest weight 

of the evidence.

A. Sufficiency of the Evidence 

{¶ 33} Whether there is legally sufficient evidence to sustain a verdict is a question 

of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). Sufficiency is a test of adequacy. 

Id. The relevant inquiry for an appellate court is whether the evidence presented, when 

viewed in a light most favorable to the prosecution, would allow any rational trier of fact to 

find the essential elements of the crime proven beyond a reasonable doubt. State v. 

Mahone, 10th Dist. No. 12AP-545, 2014-Ohio-1251, ¶ 38, citing State v. Tenace, 109 Ohio 

St.3d 255, 2006-Ohio-2417, ¶ 37.
No. 19AP-279 13 

{¶ 34} The jury convicted Daylong of one count each of assault, attempted burglary, 

attempted trespass into a habitation, disrupting public services, menacing by stalking, and 

violating a protection order. We must examine each count to determine whether the state 

presented sufficient evidence to prove the essential elements of each count beyond a 

reasonable doubt.

1. Assault 

{¶ 35} The jury found Daylong guilty of assault in violation of R.C. 2903.13. 

Pursuant to R.C. 2903.13(A), "[n]o person shall knowingly cause or attempt to cause 

physical harm to another." " 'Physical harm to persons' means any injury, illness, or other 

physiological impairment, regardless of its gravity or duration.' " R.C. 2901.01(A)(3). "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." R.C. 

2901.22(B). When determining whether a defendant acted knowingly, his state of mind 

must be determined from the totality of the circumstances surrounding the alleged crime. 

State v. Ingram, 10th Dist. No. 11AP-1124, 2012-Ohio-4075, ¶ 22. Culpable mental states 

are frequently demonstrated through circumstantial evidence. Id. 

{¶ 36} The assault charge related to Daylong's interaction with A.M. on 

September 17, 2018 at her apartment. A.M. testified that Daylong grabbed her hand and 

squeezed it with such force that she feared her bones would break. When A.M. told Daylong 

that he was hurting her, she said he grabbed her other arm and pushed her against the door. 

She additionally testified that, the next day, she noticed bruises on her arm and a scrape on 

her back from the altercation. Though Daylong asserts A.M.'s testimony was not credible, 

" 'in a sufficiency of the evidence review, an appellate court does not engage in a 

determination of witness credibility; rather, it essentially assumes the state's witnesses 

testified truthfully and determines if that testimony satisfies each element of the crime.' " 

State v. Connally, 10th Dist. No. 16AP-53, 2016-Ohio-7573, ¶ 38, quoting State v. 

Bankston, 10th Dist. No. 08AP-668, 2009-Ohio-754, ¶ 4. Construing A.M.'s testimony in 

a light most favorable to the state, a rational jury could find Daylong knowingly caused A.M. 

physical harm. Thus, sufficient evidence supports Daylong's conviction of assault. 
No. 19AP-279 14 

2. Attempted Burglary and Attempted Trespass in a Habitation 

{¶ 37} The jury found Daylong guilty of attempted burglary, in violation of R.C. 

2923.02 as it relates to R.C. 2911.12. Additionally, the jury found Daylong guilty of 

attempted trespass in a habitation, in violation of R.C. 2923.02 as it relates to R.C. 2911.12. 

R.C. 2911.12(A)(2) states "[n]o person, by force, stealth, or deception, shall * * * [t]respass 

in an occupied structure or in a separately secured or separately occupied portion of an 

occupied structure that is a permanent or temporary habitation of any person when any 

person other than an accomplice of the offender is present or likely to be present, with 

purpose to commit in the habitation any criminal offense." Further, pursuant to R.C. 

2911.12(B), "[n]o person, by force, stealth, or deception, shall trespass in a permanent or 

temporary habitation of any person when any person other than an accomplice of the 

offender is present or likely to be present." A person criminally trespasses when he or she 

"knowingly enter[s] or remain[s] on the land or premises of another * * * without privilege 

to do so." R.C. 2911.21(A)(1). Privilege is "an immunity, license, or right conferred by law, 

bestowed by express or implied grant, arising out of * * * [a] relationship." R.C. 

2901.01(A)(12).

{¶ 38} R.C. 2923.02(A) defines attempt as "[n]o person, purposely or knowingly, 

and when purpose or knowledge is sufficient culpability for the commission of an offense, 

shall engage in conduct that, if successful, would constitute or result in the offense." 

Further, the Supreme Court of Ohio has defined "criminal attempt" as " 'an act or omission 

constituting a substantial step in a course of conduct planned to culminate in [the actor's] 

commission of the crime.' A 'substantial step' requires conduct that is 'strongly 

corroborative of the actor's criminal purpose.' " State v. Group, 98 Ohio St.3d 248, 2002-

Ohio-7247, ¶ 101, quoting State v. Woods, 48 Ohio St.2d 127 (1976), paragraph one of the 

syllabus.

{¶ 39} Thus, under the pertinent statutes, the state was not required to prove 

Daylong was successful in entering A.M.'s home in order to establish attempted burglary 

and attempted trespass in a habitation. Instead, the state was required to prove Daylong 

knowingly engaged in conduct that, if successful, would have constituted burglary pursuant 

to R.C. 2911.12(A)(2) and trespass in a habitation pursuant to R.C. 2911.12(B).
No. 19AP-279 15 

{¶ 40} Daylong argues the state failed to prove he was at A.M.'s apartment during 

the pertinent time frame such that he could have committed the offenses of attempted 

burglary and attempted trespass in a habitation. At trial, A.M. testified that during the early 

morning hours of September 22, 2018, she awoke to the sound of her doorknob wiggling 

and saw her deadbolt rattling. When she looked outside, A.M. said she saw the silhouette 

of a person with a distinctive gait and wearing a hat, and the person was pacing back and 

forth. A.M. further testified the distinctive gait led her to conclude the person was Daylong. 

Though Daylong argues this evidence was insufficient because neither another witness nor 

the state's GPS evidence corroborated A.M.'s version of events, we are mindful that, in a 

sufficiency of the evidence review, "[a] victim's testimony, alone, is sufficient to support a 

conviction." State v. Abdullahi, 10th Dist. No. 18AP-222, 2018-Ohio-5146, ¶ 34, citing 

State v. W.J., 10th Dist. No. 14AP-457, 2015-Ohio-2353, ¶ 35, citing State v. Johnson, 112 

Ohio St.3d 210, 2006-Ohio-6404, ¶ 53. Instead, from A.M.'s testimony, a jury could 

reasonably conclude that it was Daylong who attempted, through force, to trespass into 

A.M.'s apartment with the purpose to commit a criminal offense. See State v. Szykulski, 

10th Dist. No. 19AP-639, 2021-Ohio-2733, ¶ 20 (victim's testimony was sufficient evidence 

to identify the defendant as the perpetrator through circumstantial evidence even where 

the victim did not personally witness the defendant commit the offenses). Accordingly, 

sufficient evidence supported Daylong's convictions of attempted burglary and attempted 

trespass in a habitation. 

3. Disrupting Public Services 

{¶ 41} The jury found Daylong guilty of disrupting public services. Pursuant to R.C. 

2909.04(A)(2), "[n]o person, purposely by any means or knowingly by damaging or 

tampering with any property, shall * * * [i]nterrupt or impair * * * power, or other utility 

service to the public." Daylong argues the state presented insufficient evidence that he 

committed the offense because no one witnessed him tampering with the electrical box for 

A.M.'s apartment. Stated another way, Daylong's argument is that there was insufficient 

evidence to support this conviction because the state relied on circumstantial, rather than 

direct, evidence.

{¶ 42} "Circumstantial evidence is the 'proof of facts by direct evidence from which 

the trier of fact may infer or derive by reasoning other facts in accordance with the common 
No. 19AP-279 16 

experience of mankind.' " (Internal quotations omitted.) State v. Robinson, 10th Dist. No. 

17AP-5, 2018-Ohio-1809, ¶ 20, quoting State v. Griesheimer, 10th Dist. No. 05AP-1039, 

2007-Ohio-837, ¶ 26. Circumstantial evidence has the same probative value as direct 

evidence. Robinson at ¶ 20; State v. Teitelbaum, 10th Dist. No. 14AP-310, 2016-Ohio-3524, 

¶ 120. " '[C]ircumstantial evidence is sufficient to sustain a conviction if that evidence 

would convince the average mind of the defendant's guilt beyond a reasonable doubt.' " 

Robinson at ¶ 20, quoting State v. Heinish, 50 Ohio St.3d 231, 238 (1990). 

{¶ 43} At trial, both A.M. and Brodbeck testified that the power to A.M.'s apartment 

went out on September 23, 2018. A.M. said that when she looked outside, all other 

apartments in the complex still had power. When A.M. and Brodbeck went outside the 

apartment, they saw Daylong looking at Brodbeck's car, and both A.M. and Brodbeck 

testified that Daylong ran away when Brodbeck confronted him. The police officers 

responding to the scene saw Daylong walking near the apartment but said he walked away 

"aggressively" when they first yelled for him to stop (Tr. Vol. 3 at 391.) When the officers 

eventually caught up with him, the officers said Daylong was sweating profusely and had 

defecated in his pants. See, e.g., State v. Henry, 10th Dist. No. 04AP-1061, 2005-Ohio3931, ¶ 39-44 (a defendant's flight from the scene and nervous behavior are admissible as 

evidence of consciousness of guilt). Additionally, the officers testified that the electrical box 

to A.M.'s apartment showed signs of tampering. Construing this evidence in a light most 

favorable to the state, a rational jury could find Daylong knowingly tampered with the 

electrical box to A.M.'s apartment with the purpose of interrupting or impairing the power 

to her apartment. Thus, the state presented sufficient evidence to support Daylong's 

conviction of disrupting public services.1 

4. Menacing by Stalking 

{¶ 44} The jury found Daylong guilty of menacing by stalking. R.C. 2903.211 defines 

"menacing by stalking" as "engaging in a pattern of conduct" which will "knowingly cause 

another person to believe that the offender will cause physical harm to the other person 

1 We note that Daylong additionally argues under this assignment of error that the state failed to prove the 

"public" element of R.C. 2909.04(A)(2), arguing disrupting power to only a single residence is insufficient 

to prove disruption of public services. This argument is the subject of Daylong's third assignment of error, 

and we address it in full in Section V, infra. 
No. 19AP-279 17 

* * * or cause mental distress to the other person." R.C. 2903.211(A)(1). A "pattern of 

conduct" is "two or more actions or incidents closely related in time." R.C. 2903.211(D)(1). 

{¶ 45} A.M. testified that between September 21 and September 24, 2018, Daylong 

repeatedly called her and sent her text messages, appeared at her workplace, appeared at 

restaurants where he knew she would be, attempted to break into her apartment while she 

slept, left letters at her apartment door, cut off her electricity, and appeared at the 

courthouse while A.M. was there seeking a protection order against Daylong. Further, A.M. 

testified she was in anguish over Daylong's behavior and feared he would harm her. 

Daylong argues these incidents were not menacing behavior and, thus, could not constitute 

a pattern of conduct sufficient to find him guilty of menacing by stalking. However, in 

determining whether a defendant's conduct constitutes a pattern of conduct, a court must 

take everything into consideration, "even if some of the person's actions may not, in 

isolation, seem particularly threatening." (Internal quotations omitted.) State v. Dillard, 

10th Dist. No. 18AP-178, 2018-Ohio-4842, ¶ 17. The evidence here is sufficient for a 

rational jury to conclude Daylong engaged in a pattern of conduct that would knowingly 

cause A.M. to believe he would cause physical harm or mental distress to her. Thus, 

sufficient evidence supports Daylong's conviction of menacing by stalking.

5. Violating a Protection Order 

{¶ 46} The jury found Daylong guilty of violating a protection order. Pursuant to 

R.C. 2919.27, "[n]o person shall recklessly violate the terms of * * * [a] protection order 

issued or consent agreement approved pursuant to section 2919.26 or 3113.31 of the 

Revised Code." R.C. 2919.27(A)(1). See also State v. Partlow, 10th Dist. No. 12AP-459, 

2013-Ohio-2771, ¶ 19. Further, "[a] person acts recklessly when, with heedless indifference 

to the consequences, the person disregards a substantial and unjustifiable risk that the 

person's conduct is likely to cause a certain result or is likely to be of a certain nature. A 

person is reckless with respect to circumstances when, with heedless indifference to the 

consequences, the person disregards a substantial and unjustifiable risk that such 

circumstances are likely to exist." R.C. 2901.22(C).

{¶ 47} A.M. had a valid protection order issued pursuant to R.C. 3113.31. The terms 

of the protection order against Daylong prohibited him from being within 500 feet of A.M. 

A.M. testified that on October 1, 2018, after Daylong had been served with the protection 
No. 19AP-279 18 

order, she was at a Rooster's restaurant and saw Daylong in the parking lot. She said 

Daylong appeared to leave the parking lot only to return a short time later, and she further 

testified she saw Daylong get out of his van and walk toward the restaurant. Brodbeck, who 

was with A.M. at the restaurant, testified that Daylong did not return to his van until 

Brodbeck walked outside to confront him. The distance between Daylong's van and where 

A.M. was seated inside the restaurant was less than 300 feet. Daylong also admitted to a 

detective that he knew A.M. would be at the restaurant from a text message meant for her 

children that A.M. unintentionally sent to Daylong. From this evidence, a rational jury 

could conclude Daylong recklessly violated the terms of the protection order by coming 

within 500 feet of her. Therefore, sufficient evidence supports Daylong's conviction of 

violating a protection order.

B. Manifest Weight of the Evidence 

{¶ 48} When presented with a manifest weight argument, an appellate court 

engages in a limited weighing of the evidence to determine whether sufficient competent, 

credible evidence supports the jury's verdict. State v. Salinas, 10th Dist. No. 09AP-1201, 

2010-Ohio-4738, ¶ 32, citing Thompkins at 387. "When a court of appeals reverses a 

judgment of a trial court on the basis that the verdict is against the weight of the evidence, 

the appellate court sits as a 'thirteenth juror' and disagrees with the factfinder's resolution 

of the conflicting testimony." Thompkins at 387, quoting Tibbs v. Florida, 457 U.S. 31, 42 

(1982). Determinations of credibility and weight of the testimony are primarily for the trier 

of fact. State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus. Thus, 

the jury may take note of the inconsistencies and resolve them accordingly, "believ[ing] all, 

part, or none of a witness's testimony." State v. Raver, 10th Dist. No. 02AP-604, 2003-

Ohio-958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67 (1964).

{¶ 49} An appellate court considering a manifest weight challenge "may not merely 

substitute its view for that of the trier of fact, but 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 

created such a manifest miscarriage of justice that the conviction must be reversed and a 

new trial ordered." State v. Harris, 10th Dist. No. 13AP-770, 2014-Ohio-2501, ¶ 22, citing 

Thompkins at 387. Appellate courts should reverse a conviction as being against the 
No. 19AP-279 19 

manifest weight of the evidence only in the most " 'exceptional case in which the evidence 

weighs heavily against the conviction.' " Thompkins at 387, quoting State v. Martin, 20 

Ohio App.3d 172, 175 (1st Dist.1983).

{¶ 50} Daylong argues his convictions are against the manifest weight of the 

evidence because the jury clearly lost its way in believing A.M.'s testimony. However, a 

conviction is not against the manifest weight of the evidence because the trier of fact 

believed the state's version of events over the defendant's version of events. Szykulski at 

¶ 25, citing State v. Lindsey, 10th Dist. No. 14AP-751, 2015-Ohio-2169, ¶ 43, citing State v. 

Gale, 10th Dist. No. 05AP-708, 2006-Ohio-1523, ¶ 19. As noted above, the trier of fact 

remains free to believe "all, part, or none of a witness's testimony." Raver at ¶ 21. 

{¶ 51} Daylong first argues A.M.'s testimony lacks credibility because she admitted 

to tampering with his prescription Adderall and received immunity from the state related 

to any criminal charges that could stem from that conduct. It is within the province of the 

jury, however, to believe a witness's testimony in spite of admitted involvement with 

criminal conduct, plea agreements, and/or immunity agreements with the state. State v. 

Webster, 10th Dist. No. 20AP-171, 2021-Ohio-3218, ¶ 74, citing State v. Connally, 16AP53, 2016-Ohio-7573, ¶ 41, citing State v. Berry, 10th Dist. No. 10AP-1187, 2011-Ohio-6452, 

¶ 18. Defense counsel had ample opportunity on cross-examination to highlight A.M.'s 

immunity agreement and admission to tampering with Daylong's medication. Her 

testimony was not "so incredible as to render appellant's convictions against the manifest 

weight of the evidence." Berry at ¶ 18, citing State v. Thompson, 10th Dist. No. 07AP-491, 

2008-Ohio-2017, ¶ 35. 

{¶ 52} Additionally, Daylong asserts A.M. had reason to fabricate stories about him, 

attempting to depict A.M. as upset that the relationship ended and seeking to punish 

Daylong by providing false testimony about his conduct. Again, however, defense counsel 

was able to cross-examine A.M. about her attempted reconciliations with Daylong, and 

A.M. testified that despite prior attempts to make the relationship work, she unequivocally 

ended the relationship on September 21, 2018. Despite Daylong's suggestion that A.M. had 

a motive to concoct a false story, we find, after reviewing the record in its entirety, that the 

jury did not clearly lose its way in finding A.M.'s testimony to be credible. 
No. 19AP-279 20 

{¶ 53} Moreover, to the extent Daylong argues his convictions are against the 

manifest weight of the evidence due to the lack of physical or forensic evidence connecting 

him to the offenses, this court has repeatedly stated that " '[a] lack of physical evidence, 

standing alone, does not render [a defendant's] conviction against the manifest weight of 

the evidence.' " State v. Murray, 10th Dist. No. 16AP-16, 2017-Ohio-949, ¶ 38, quoting 

State v. Peeples, 10th Dist. No. 13AP-1026, 2014-Ohio-4064, ¶ 21, citing State v. Conner, 

10th Dist. No. 12AP-698, 2013-Ohio-2773, ¶ 12. " 'If [witness] testimony is believed then 

the lack of fingerprints, DNA, footprints or any other [type of] physical evidence does not 

render the conviction against the manifest weight of the evidence.' " Peeples at ¶ 21, quoting 

State v. Jackson, 7th Dist. No. 09 JE 13, 2009-Ohio-6407, ¶ 16 (concluding a conviction 

based on victim's testimony identifying the defendant was not against the manifest weight 

of the evidence). As we stated above, A.M. provided credible testimony about Daylong's 

conduct from September 17 to October 1, 2018.

{¶ 54} Thus, in light of the evidence discussed above, as well as the record in its 

entirety we do not find the jury clearly lost its way in concluding the state proved Daylong 

committed each of the six offenses. We conclude, therefore, that the manifest weight of the 

evidence supports Daylong's convictions of assault, attempted burglary, attempted trespass 

in a habitation, disrupting public services, menacing by stalking, and violating a protection 

order. Having additionally concluded there was sufficient evidence to sustain these 

convictions, we overrule Daylong's second assignment of error.

V. Third Assignment of Error – Limitations on Closing Arguments and Jury 

 Instructions 

{¶ 55} In his third assignment of error, Daylong argues the trial court erred in 

limiting his counsel's closing arguments related to disrupting public services and in 

refusing to provide the jury with his requested instruction on disrupting public services.

A. Jury Instructions 

{¶ 56} In instructing the jury, a trial court "must give all instructions that are 

relevant and necessary for the jury to weigh the evidence and discharge its duty as the 

factfinder." State v. Joy, 74 Ohio St.3d 178, 181 (1995), citing State v. Comen, 50 Ohio St.3d 

206 (1990), paragraph two of the syllabus. A criminal defendant is entitled only to have 

the law stated correctly by the trial court but "not to have his proposed jury instructions 
No. 19AP-279 21 

presented to the jury." State v. Shine-Johnson, 10th Dist. No. 17AP-194, 2018-Ohio-3347, 

¶ 25, citing State v. Hubbard, 10th Dist. No. 11AP-945, 2013-Ohio-2735, ¶ 48. Where a 

requested jury instruction contains a correct statement of the law as applied to the facts of 

the case, the trial court should generally give such an instruction. Id., citing Hubbard at 

¶ 48. 

{¶ 57} "The trial court has broad discretion in fashioning the jury instructions as 

long as it presents 'a correct, pertinent statement of the law that is appropriate to the facts.' " 

State v. Stevenson, 10th Dist. No. 17AP-512, 2018-Ohio-5140, ¶ 16, quoting State v. White, 

142 Ohio St.3d 277, 2015-Ohio-492, ¶ 46. Generally, an appellate court reviews a trial 

court's jury instructions for an abuse of discretion. State v. Mankin, 10th Dist. No. 19AP650, 2020-Ohio-5317, ¶ 33, citing State v. Grover, 10th Dist. No. 05AP-1034, 2006-Ohio4338, ¶ 22, citing State v. Wolons, 44 Ohio St.3d 64, 68 (1989). However, when a jury 

instruction contains an incorrect statement of the law, a reviewing court applies a mixed de 

novo and abuse of discretion standard of review. State v. Morris, 132 Ohio St.3d 337, 2012-

Ohio-2407, ¶ 21. "Thus, [i]n examining errors in a jury instruction, a reviewing court must 

consider the jury charge as a whole and must determine whether the jury charge probably 

misled the jury in a matter materially affecting the complaining party's substantial rights." 

(Internal quotations omitted.) State v. Rutledge, 10th Dist. No. 17AP-590, 2019-Ohio3460, ¶ 31. 

{¶ 58} Daylong argues the trial court erred in instructing the jury on the charge of 

disrupting public services. At trial, the court instructed the jury as follows:

Before you can find the Defendant guilty of Disrupting Public 

Services, you must find beyond a reasonable doubt that on or 

about the 23rd day of September, 2018, in Franklin County, 

Ohio, the Defendant did knowingly, by damaging or tampering 

with any property, interrupt or impair electrical power to the 

public, to-wit: [A.M.'s] residence. 

(Tr. Vol. 4 at 711.) Daylong asserts the trial court's instruction was erroneous because a 

single residence cannot constitute "the public" within the meaning of R.C. 2909.04. 

{¶ 59} Daylong's argument presents a question of statutory interpretation, a 

question of law subject to de novo review on appeal. State v. Banks, 10th Dist. No. 11AP69, 2011-Ohio-4252, ¶ 13. A court's duty is to give effect to the words used in a statute, not 
No. 19AP-279 22 

to delete or insert words. State v. Maxwell, 95 Ohio St.3d 254, 2002-Ohio-2121, ¶ 10. 

"Where the language of a statute is plain and unambiguous and conveys a clear and definite 

meaning there is no occasion for resorting to rules of statutory interpretation. An 

unambiguous statute is to be applied, not interpreted." Sears v. Weimer, 143 Ohio St. 312 

(1944), paragraph five of the syllabus. "Only when a definitive meaning proves elusive 

should rules for construing ambiguous language be employed. Otherwise, allegations of 

ambiguity become self-fulfilling." State v. Porterfield, 106 Ohio St.3d 5, 2005-Ohio-3095, 

¶ 11. 

{¶ 60} Ambiguity exists only if the language of a statute is susceptible to more than 

one reasonable interpretation. See, e.g., State ex rel. Toledo Edison Co. v. Clyde, 76 Ohio 

St.3d 508, 513 (1996). If a statute is ambiguous, R.C. 1.49 provides that a court may 

consider "other matters," such as the object sought to be attained and the consequences of 

a particular construction, to determine the intent of the legislature. See State v. Polus, 145 

Ohio St.3d 266, 2016-Ohio-655, ¶ 7. In the criminal context, the rule of lenity provides that 

statutes defining offenses or penalties shall be strictly construed against the state and 

liberally construed in favor of the accused. See R.C. 2901.04(A). The "touchstone" of the 

rule of lenity is "statutory ambiguity." Lewis v. United States, 445 U.S. 55, 65 (1980). If a 

statute is not ambiguous, the rule of lenity does not apply. United States v. Johnson, 529 

U.S. 53, 59 (2000).

{¶ 61} As noted above, R.C. 2909.04(A)(2) provides "[n]o person, purposely by any 

means or knowingly by damaging or tampering with any property, shall * * * [i]nterrupt or 

impair * * * water supply, gas, power, or other utility service to the public." Daylong asserts 

that because R.C. 2909.04 does not define the term "public," the statute is ambiguous and 

thus subject to the rule of lenity. Thus, Daylong would have us interpret the statute to mean 

an offender cannot be guilty of disrupting public services unless his conduct causes an 

interruption of utility services to the public at large. 

{¶ 62} We note, as Daylong does, that R.C. 2909.04 does not define the term 

"public." However, in looking at the plain language of the statute, the phrase "to the public" 

is a prepositional phrase modifying "utility service." Thus, the use of the word public in the 

statute describes the type of service the statute protects rather than, as Daylong asserts, the 

number of victims it must impact. Accordingly, Daylong's interpretation of R.C. 
No. 19AP-279 23 

2909.04(A)(2) is inconsistent with the plain language of the statute. See State v. Glass,

10th Dist. No. 11AP-890, 2012-Ohio-2993, ¶ 35 (finding sufficient evidence to support a 

conviction for disrupting public services where the defendant removed the electric meter 

from a single residence, causing the electrical services to the victim's home to be 

interrupted); see also State v. Brown, 97 Ohio App.3d 293, 301-02 (8th Dist.1994) (holding 

R.C. 2909.04(A)(2) does not require a showing that the defendant "completely deprived 

each and every member of the entire community" of the utility service; rather, interrupting 

or impairing service "at a single location" is sufficient to show a violation of R.C. 

2909.04(A)(2)). As there is no ambiguity, neither the rule of lenity nor any other rule of 

statutory construction applies. Columbus v. Mitchell, 10th Dist. No. 16AP-322, 2016-Ohio7873, ¶ 9. 

{¶ 63} Having determined Daylong's proposed interpretation of R.C. 2909.04(A)(2) 

is inconsistent with the plain language of the statute, we find the trial court's jury 

instruction on the charge of disrupting public services contained a correct statement of law, 

and thus the trial court did not err in instructing the jury.

B. Limitations on Closing Arguments 

{¶ 64} Daylong additionally argues under this assignment of error that the trial 

court erred in refusing to allow him to argue, during closing arguments, that the state could 

not prove a violation of disrupting public services where the interference with electrical 

power occurred at only one residence.

{¶ 65} During the trial, Daylong filed a motion to dismiss pursuant to Crim.R. 29 

arguing the state could not prove he disrupted electric service "to the public." (Mar. 5, 2019 

Mot. to Dismiss.) Daylong renewed this argument at trial. After considering the motion, 

the trial court denied Daylong's motion and, over Daylong's objection, refused to allow 

Daylong's counsel to argue to the jury during closing arguments whether A.M.'s single 

residence constituted "the public" within the meaning of the statute. Daylong argues the 

trial court erred in both its denial of his Crim.R. 29 motion and its ruling that Daylong could 

not argue the issue to the jury.

{¶ 66} As we noted in our discussion of the jury instructions, Daylong's argument 

about the meaning of the phrase "to the public" presents a question of statutory 

interpretation that this court reviews de novo. Banks at ¶ 13. Having concluded that 
No. 19AP-279 24 

Daylong's proposed interpretation of the statute is inconsistent with the plain language of 

the statute, the trial court did not err in denying Daylong's Crim.R. 29 motion or in 

preventing him from arguing the statute's meaning to the jury during closing arguments. 

We overrule Daylong's third assignment of error. 

VI. Fourth Assignment of Error – Evidence of Prior Conviction 

{¶ 67} In his fourth and final assignment of error, Daylong argues the trial court 

erred in admitting evidence of his prior criminal conviction. More specifically, Daylong 

asserts the trial court erred when it allowed A.M. to testify that Daylong had told her he was 

convicted of breaking and entering against an ex-girlfriend and when it allowed the state to 

play one of A.M.'s 911 calls mentioning the prior conviction. Daylong argues the state used 

this evidence as improper propensity evidence under Evid.R. 404(B), thereby depriving 

him of a fair trial. 

{¶ 68} In our resolution of Daylong's first assignment of error, we noted that, when 

admissible, a trial court has discretion whether to admit other-acts evidence. Hartman at 

¶ 22. Here, Daylong concedes his counsel did not object to the evidence of his prior 

conviction at trial. Thus, Daylong has waived all but plain error. State v. C.W., 10th Dist. 

No. 15AP-1024, 2018-Ohio-1479, ¶ 27 (failure to object to other-acts evidence waives all but 

plain error), citing State v. Hanna, 95 Ohio St.3d 285, 2002-Ohio-2221, ¶ 84. An appellate 

court recognizes plain error with the utmost caution, under exceptional circumstances, and 

only to prevent a miscarriage of justice. State v. Pilgrim, 184 Ohio App.3d 675, 2009-Ohio5357, ¶ 58 (10th Dist.), citing State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, ¶ 139.

{¶ 69} For an error to be a "plain error" under Crim.R. 52(B), it must satisfy three 

prongs: (1) there must be an error, meaning a deviation from a legal rule, (2) the error must 

be "plain," meaning an "obvious" defect in the trial proceedings, and (3) the error must have 

affected "substantial rights," meaning the error must have affected the outcome of the trial. 

State v. Barnes, 94 Ohio St.3d 21, 27 (2002). A court will reverse on plain error only upon 

a showing that the outcome " 'clearly would have been different absent the error.' " State 

v. Petty, 10th Dist. No. 11AP-716, 2012-Ohio-2989, ¶ 15, quoting State v. Zachery, 10th 

Dist. No. 08AP-451, 2009-Ohio-1180, ¶ 8.

{¶ 70} Here, Daylong is unable to demonstrate plain error from the admission of the 

evidence of his prior criminal conviction. As the state notes, the evidence related to A.M.'s 
No. 19AP-279 25 

state of mind during her 911 call and the degree to which A.M. feared Daylong. The evidence 

was not admitted to show that Daylong acted in conformity with his bad character. 

Furthermore, even if we were to conclude the evidence was not admissible under Evid.R. 

404(B), Daylong does not demonstrate that the outcome of the trial clearly would have been 

different without this testimony. We are mindful that the trial court provided a limiting 

instruction related to the other-acts evidence from A.B.'s testimony, and A.B. testified about 

the same breaking-and-entering that A.M. referred to as Daylong's prior criminal conduct. 

See State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, ¶ 24 (noting a limiting 

instruction lessens the prejudicial effect of other-acts evidence). Furthermore, as we noted 

in our resolution of Daylong's first assignment of error, there was ample other evidence at 

trial overwhelmingly supporting Daylong's convictions. Thus, the admission of the 

evidence of Daylong's prior criminal conviction did not affect the outcome of the trial and, 

therefore, does not constitute plain error. See Columbus v. Burgess, 10th Dist. No. 19AP392, 2021 Ohio App. LEXIS 2154 (June 29, 2021) (no plain error in admitting police 

officer's testimony concerning appellant's prior arrest as it did not affect the outcome of the 

trial), citing State v. Tench, 156 Ohio St.3d 85, 2018-Ohio-5205, ¶ 245 (no plain error in 

admission of other-acts evidence due to overwhelming evidence of guilt). 

{¶ 71} Because the admission of the other-acts evidence of Daylong's prior criminal 

conviction was not plain error, we overrule Daylong's fourth and final assignment of error.

VII. Disposition 

{¶ 72} Based on the foregoing reasons, the trial court did not err in the admission of 

other-acts evidence, sufficient evidence and the manifest weight of the evidence supports 

Daylong's convictions, the trial court did not err in instructing the jury or in preventing 

Daylong from arguing to the jury the meaning of the term "public" as used in R.C. 

2909.04(A)(2), and the admission of the evidence of Daylong's prior criminal conviction 

did not constitute plain error. Having overruled Daylong's four assignments of error, we 

affirm the judgment of the Franklin County Court of Common Pleas.

Judgment affirmed. 

BROWN, J., concurs. 

BEATTY BLUNT, J., dissents. 
No. 19AP-279 26 

BEATTY BLUNT, J., dissenting. 

{¶ 73} Because I would sustain Daylong's first assignment of error and remand the 

case for a new trial in compliance with the requirements of Evid.R. 404, I respectfully 

dissent. 

{¶ 74} The majority has not fully considered the effect that State v. Hartman, 161 

Ohio St.3d 214, 2020-Ohio-4440, and State v. Smith, 162 Ohio St.3d 353, 2020-Ohio-4441, 

have on the rule, and therefore on this case. Among other holdings, Hartman and Smith

"clarified" the use of other-acts evidence under Evid.R. 404(B), and both limited the 

number of cases in which such evidence may be admitted and restricted the use of such 

evidence in cases where it is admitted. The Supreme Court of Ohio concluded that otheracts evidence of the defendant's modus operandi (or "behavioral fingerprint") is 

inadmissible unless the identity of the defendant was material to the dispute before the 

court. Hartman at ¶ 36-39 ("[E]ven if B.T.'s testimony could have been labeled modus 

operandi evidence, it still would not have been admissible because identity evidence was 

not an issue in the case.") See also Smith at ¶ 42 (Testimony regarding defendant's 

molestation of his daughter 30 years earlier was not admissible in prosecution for 

molestation of his granddaughter because defendant's identity was not a fact in dispute.). 

{¶ 75} The majority holds that A.B.'s testimony was admissible because there was a 

"legitimate dispute about the perpetrator's identity for the charges of attempted burglary, 

attempted trespass, and disrupting public services." Majority Decision at ¶ 27. It is true that 

in past cases, the concept of "identity" has been construed broadly enough to cover the 

admission of A.B.'s testimony. But under Hartman and Smith, the facts of the criminal acts 

being tried must first present a legitimate question as to the identity of the person who 

committed the alleged offenses, and second, the facts of both the prior act and the act must 

contain a "behavioral fingerprint" or specific modus operandi that suggests that both acts 

were committed by the same perpetrator. See Hartman at ¶ 36-39 and Smith at ¶ 42. 

{¶ 76} But Daylong's identity was never truly at issue in this case—if these offenses 

occurred, Daylong was the only suspect. He did not present any evidence or make any 

suggestion at any point that the crimes were committed by someone else. Instead, he 

consistently argued at trial that A.M. was lying and that those crimes did not occur at all. 

For example, A.M. testified that during the incident that formed the basis of the attempted 
No. 19AP-279 27 

trespass and attempted burglary charges, she did not see Daylong's face but identified him 

by his hat and his unusual gait. And while it is true that a small part of A.B.'s testimony 

confirmed Daylong had an unusual walk, Daylong's defense was not that he did not have 

an odd way of walking and therefore it was someone else who tried to get into A.M.'s house. 

{¶ 77} Cross-examination of A.M. barely addressed the facts of the alleged incidents 

and instead focused on attacking A.M.'s credibility—by confronting her with her text 

messages to Daylong and others and her admissions that she had tampered with Daylong's 

prescription pills before returning them to him, something she did not reveal to the police 

when they questioned her about it. See March 5, 2019 Tr. Vol. II. at 230-92 (crossexamination of A.M.). Daylong's counsel specifically argued to the jury that "the evidence 

has demonstrated that [A.M.] is a liar," (Mar. 7, 2019 Tr. Vol IV. at 664) and argued that 

while the state had argued "that I'm trying to argue with you about identity. I suggest to you 

that no one else did the things we're talking about. What I suggest to you based on [A.M.'s] 

testimony is that they didn't happen." (Emphasis added.) Id. at 665. Throughout, counsel 

consistently argued that "it's not identity. Didn't happen. The State cannot prove to you 

beyond a reasonable doubt that it happened." (Emphasis added.) Id. at 668. 

{¶ 78} The state argued that A.B.'s testimony "shows [Daylong's] identity, which is 

something we have to prove in each offense. It shows that this was committed by him 

versus somebody else." (Emphasis added.) Id. at 686. But this argument—adopted by the 

majority in its holding—proves far too much. Given that no other possible suspect was ever 

identified nor put forward by either the state or the defense, the conclusion that identity is 

at issue on these facts has the effect of making identity a disputed issue in every case, a 

position that Hartman and Smith directly reject. The majority suggests that Daylong "made 

more nuanced" arguments throughout trial and on appeal about the identity of the 

perpetrator of the alleged offenses. Majority Decision at ¶ 26. The majority points to the 

fact that Daylong argued that there were "no eyewitnesses" to the alleged tampering with 

A.M.'s electrical box or the alleged attempted forced entry into her home. Id. at ¶ 27. But 

Daylong did not testify—his consistent position at trial and on appeal was that A.M.'s 

allegations and testimony were false. The arguments that the majority cites are completely 

consistent with that defense, and the majority cannot point to any specific statements from 

the trial transcript to support its view.
No. 19AP-279 28 

{¶ 79} Moreover, the state made no effort to restrict the use of A.B.'s testimony to 

the asserted permissible purpose of identifying Daylong as the perpetrator. Indeed, in its 

brief to this court, the state described commonalities between the acts committed against 

A.B. and those for which Daylong was on trial and argued: "[c]all it a modus operandi. Call 

it a behavioral fingerprint. Or call it a scheme, plan, or system. What matters is that [A.M.]'s 

break-up with Daylong shares many of the same identifiable characteristics as those 

employed to stalk [A.B.]." (Appellee's Brief at 32-33.) Clearly, the state did not present the 

"other-act" evidence challenged under Evid.R. 404(B) to demonstrate Daylong's style of 

walking and therefore his identity. Rather, it candidly admits, it presented A.B.'s testimony 

because it showed that "Daylong has a distinct, identifiable method of stalking exgirlfriends * * *." (Emphasis added.) Id. at 32. As the Supreme Court has already 

determined in Hartman and Smith, on facts where identity is not truly in question this is a 

forbidden "propensity" argument. See Smith at ¶ 36-38 (quoting Evid.R. 403(A) and 

Hartman at ¶ 29-33). Insofar as Daylong's actions against A.B. are related to the crimes 

against A.M., they do not establish Daylong's identity as the perpetrator—they only support 

the forbidden logical chain that Daylong has a propensity to commit stalking crimes and 

therefore actually committed those crimes against A.M. The majority opinion wholly fails 

to address this problem.

{¶ 80} The majority also relies heavily upon the fact that the court provided a pattern 

limiting instruction to the jury regarding the use of A.B.'s testimony. Majority Decision at 

¶ 30. But the majority ignores the Hartman court's observation that the standard limiting 

instruction for the use of other-act evidence is "only of limited value to the jury * * * 

[because] the analytical distinctions between the different types of evidence that may be 

admitted under Evid.R. 404(B) can be difficult." Hartman at ¶ 69. The Hartman court held 

that the standard instruction "imparts nothing meaningful and is akin to telling the jurors 

that the evidence may be considered for any purpose." Id. Accordingly, "the instruction 

should be tailored to the facts of the case": 

[I]t is not realistic to simply list all the permissible uses and 

expect jurors to go through each one and determine the use for 

which the evidence is properly considered * * * the instruction 

should be tailored to the facts of the case. The boilerplate 

language contained in the Ohio Jury Instructions addressing 
No. 19AP-279 29 

other-acts evidence is merely a template * * *. Rather than 

recounting to the jury every purpose listed in Evid.R. 404(B), 

our pattern jury instructions direct trial courts to state the 

specific purpose for which the other-acts evidence is being 

admitted in that case." 

Hartman at ¶ 69-70. The Hartman court specifically held that "[g]oing forward, courts 

should explain, in plain language, the purposes for which the other acts may and may not 

be considered." Id. at ¶ 71. The limiting instruction provided in this case is completely 

insufficient under these standards, as it merely recapitulates the pattern jury instruction 

criticized in Hartman.2

{¶ 81} In order to overrule Daylong's first assignment of error, the majority 

concludes that (1) identity was really at issue in this case; (2) A.B.'s testimony establishes a 

"behavioral fingerprint" that is clearly present in the case for which Daylong was on trial; 

and (3) A.B.'s evidence was more than simply a justification for concluding that Daylong 

had a propensity to commit the offenses with which he was charged and so he must 

therefore have committed those offenses. See generally Hartman and Smith. Even 

assuming for argument that the court's boilerplate limiting instruction was sufficient, and 

2 In conjunction with the admission of A.B's testimony, the trial court gave the standard limiting instructions 

to the jury regarding the use of "other acts" testimony and the limited purposes for which it can be used: 

Evidence was received about the commission of crimes, wrongs, and acts other than the 

offenses with which the Defendant is charged in this trial. That evidence was received only 

for a limited purpose. It was not received and you may not consider it to prove the character 

of the defendant in order to show that he acted in conformity with that character. 

If you find that the evidence of other crimes, wrongs, and acts is true and that the Defendant 

committed them, you may consider that evidence only for the purpose of deciding whether it 

proves the Defendant's motive, opportunity, intent, preparation, and/or plan to commit the 

offenses charged in this trial, his knowledge of circumstances surrounding the offenses 

charged in this trial, the identity of the person who committed the offenses in this trial, and 

the absence of mistake or accident. That evidence cannot be considered for any other 

purpose. 

Let me caution you that the evidence of the scheme, plan, or system is only one of the things 

you are to consider in determining identity. The state must prove identity beyond a 

reasonable doubt. If you find that the Defendant committed the other act, you may not 

presume that he committed the acts charged. You may, however, consider the other act along 

with all other evidence in deciding whether the State has proved beyond a reasonable doubt 

that the Defendant, rather than some other person, committed the offense charged. You may 

also decide that the State has failed to prove that a crime occurred at all. 

(Mar. 7, 2019 Tr. Vol IV at 701-02.) 
No. 19AP-279 30 

even assuming that Daylong's crimes against A.B. share a modus operandi with the actions 

for which he was tried in this case, none of the permissible purposes of other-acts evidence 

as described in Evid.R. 404 (B) were material to the state's case against Daylong. 

{¶ 82} The majority's holding that Daylong's identity was a material issue at trial is 

at odds with Hartman and Smith, and the lack of material connection between A.B.'s 

testimony and the state's allegations in this case created the situation that Evid.R. 404(B) 

was crafted to avoid—the jury was left with the impermissible logical chain that Daylong 

had a propensity to commit the type of acts with which he was charged, and therefore did 

commit those acts. I accordingly dissent.