State v. Brown

[Cite as State v. Brown, 2018-Ohio-253.]

STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO, ) CASE NO. 16 MA 0161

)

PLAINTIFF-APPELLEE, )

)

VS. ) OPINION

)

DARRELL BROWN, )

)

DEFENDANT-APPELLANT. )

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of

Common Pleas of Mahoning County,

Ohio

Case No. 16 CR 883

JUDGMENT: Affirmed.

APPEARANCES:

For Plaintiff-Appellee: Atty. Paul J. Gains

Mahoning County Prosecutor

Atty. Ralph M. Rivera

Assistant Prosecuting Attorney

21 West Boardman St., 6th Floor

Youngstown, Ohio 44503

For Defendant-Appellant: Atty. Michael Kivlighan

3685 Stutz Drive

Suite 100

Canfield, Ohio 44406

JUDGES:

Hon. Carol Ann Robb

Hon. Cheryl L. Waite

Hon. Mary DeGenaro

Dated: January 22, 2018

[Cite as State v. Brown, 2018-Ohio-253.]

ROBB, P.J.

{¶1} Defendant-Appellant Darrell Brown appeals from his conviction entered

in Mahoning County Common Pleas Court for felonious assault, menacing by

stalking, and assault.

{¶2} Three issues are raised in this appeal. First, Appellant argues he was

denied effective assistance of counsel when the trial court denied his request for

appointment of new counsel. He argues appointment of new counsel was required

because there was a complete breakdown in communication with his appointed

counsel. Alternatively, he requested a continuance to prepare for trial. The trial court

denied this request also. Appellant contends the trial court’s denial of the motion was

an abuse of discretion. Second, Appellant asserts the conviction for menacing by

stalking is not supported by sufficient evidence. Lastly, he argues the imposition of a

consecutive sentence is contrary to law because the record does not support the trial

court’s findings.

{¶3} For the reasons expressed below, all arguments lack merit. Appellant’s

conviction is affirmed.

Statement of the Facts and Case

{¶4} At approximately 12:30 a.m. on July 31, 2016 an argument occurred

between Jeronica Wolfe and Appellant at Jeronica’s house located 3948 Sunset

Boulevard in Boardman Township, Ohio. Trial Tr. 180-181. The argument was about

the use of a car. Trial Tr. 181-184. Jeronica and Appellant had known each other for

ten years and at some point were in a relationship. Trial Tr. 179-180. Celeste Wolfe,

Jericona’s adult daughter who resided with her, was upstairs getting ready to go out

while the argument was occurring. Trial Tr. 208. Celeste came downstairs to tell

Appellant to leave the residence. Trial Tr. 208. He allegedly attacked her while she

was coming down the stairs and punched her multiple times and then ran out of the

house with the keys to Celeste’s car. Trial Tr. 181-182, 208. Appellant admitted to

hitting Celeste four to eight times, but claims Celeste swung at him first and initiated

the fight. Trial Tr. 273. The altercation resulted in Celeste sustaining injuries; she

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lost consciousness, her nose was broken, and she had a facial laceration. Trial Tr.

213, 221-222.

{¶5} After regaining consciousness, Celeste, Jeronica, and a few other

people went in two separate cars to look for Appellant to get Celeste’s keys. Trial Tr.

185, 209. They drove to Judson Avenue and found Appellant. Trial Tr. 185, 209.

Appellant had a gun on his person, ran in the middle of the street, and yelled he

would kill them. Trial Tr. 186, 209. Appellant admitted he had a gun in the middle of

the street and used it to get them to leave. Trial Tr. 276. Celeste and Jeronica

immediately left and returned to the residence on Sunset Boulevard. Trial Tr. 186,

209.

{¶6} While Jeronica and Celeste were looking for Appellant, Boardman

police officers arrived at the residence on Sunset Boulevard. Trial Tr. 244-245. The

officers had been dispatched to the house after receiving an “open ended” 911 call

with screaming and fighting heard in the background. Trial Tr. 244. When the

officers arrived at the residence the front door was ajar and no one was home. Trial

Tr. 244. Jeronica and Celeste arrived at the house after the officers determined the

house was clear. Trial Tr. 245.

{¶7} Photographs were taken of Celeste and the stairs, and statements were

taken. Celeste was then taken to the hospital in an ambulance. Trial Tr. 187. The

emergency room doctor treated her for a closed head injury, nasal bone fracture, and

facial laceration. Trial Tr. 236.

{¶8} At around 8:30 a.m. on July 31, Appellant returned to the Sunset

Boulevard residence. Trial Tr. 188, 226-227. Jeronica’s other adult daughter,

Krystal, was sleeping on the living room floor and was awakened to the sound of

Appellant saying “yo-yo-yo” at the window. Trial Tr. 226. Jeronica and Krystal

testified they called the police. Trial Tr. 189, 227. Appellant used a key and tried to

push his way into the house, but Krystal pushed back and tried to keep him out of the

house. Trial Tr. 189-190, 227. An altercation ensued between Appellant and Krystal

in the driveway and backyard. Trial Tr. 190, 227. Appellant admitted to hitting and

kicking Krystal in the face during this altercation. Trial Tr. 279.

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{¶9} When the police arrived, Appellant fled on foot. Trial Tr. 252. He was

apprehended in Youngstown by a Youngstown police officer. Trial Tr. 254.

{¶10} Complaints were filed against Appellant in Mahoning County Court

Number 2, Boardman, for resisting arrest, burglary, assault, and obstructing official

business. 8/2/16 Complaint. At the initial appearance, Appellant was held in direct

contempt for statements he made to the court while walking away from the bench.

8/2/16 J.E. A preliminary hearing was held on August 9, 2016 and Appellant was

bound over to the Mahoning County Common Pleas Court. 8/9/16 J.E.

{¶11} Thereafter, Appellant was indicted for felonious assault in violation of

R.C. 2903.11(A)(1)(D), a second-degree felony; menacing by stalking in violation of

R.C. 2903.211(A)(1), a fourth-degree felony; burglary in violation of R.C.

2911.12(A)(2)(D), a second-degree felony; and assault in violation of R.C.

2903.13(A), a first-degree misdemeanor. 9/1/16 Indictment.

{¶12} Defense counsel made requests for discovery, moved for Appellant to

wear civilian clothes at trial, and filed a motion in limine. 9/14/16 and 9/23/16

Motions. A pretrial was held on September 21, 2016, the Wednesday before trial. At

that pretrial, Appellant asked for new counsel. 9/27/16 J.E. The trial court denied the

motion. 9/27/16 J.E. On the day of trial, Appellant through counsel renewed the

motion for new counsel or, in the alternative, moved for a continuance. 10/5/16 J.E.;

Trial Tr. 7-20. The trial court denied the requests. 10/5/16 J.E; Trial Tr. 7-20.

{¶13} The case proceeded to trial. The state’s case consisted of testimony

from the victims Jeronica, Celeste, and Krystal; two officers from the Boardman

Police Department; and the Emergency Room Doctor. Appellant testified on his own

behalf. The jury found Appellant guilty of felonious assault, menacing by stalking, and

assault. The jury found him not guilty of burglary. 10/5/16 J.E.

{¶14} Appellant was sentenced to an aggregate term of nine and a half years.

10/7/16 J.E.; Sentencing Tr. 15. He received eight years for felonious assault,

eighteen months for menacing by stalking, and six months for assault. 10/7/16 J.E.;

Sentencing Tr. 15-16. The six month assault sentence was ordered to be served

concurrently with the other sentences. 10/7/16 J.E.; Sentencing Tr. 16. The

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felonious assault and menacing by stalking sentences were ordered to be served

consecutively. 10/7/16 J.E.; Sentencing Tr.16. The trial court made consecutive

sentence findings at the sentencing hearing and in the judgment entry. 10/7/16 J.E.;

Sentencing Tr. 16.

{¶15} Appellant timely appealed his conviction.

First Assignment of Error

“Darrell Brown was denied his right to the effective assistance of counsel as

guaranteed by the Sixth and Fourteenth Amendments to the United States

Constitution and Section 10, Article I of the Ohio Constitution.”

{¶16} Appellant asserts he was denied his right to effective assistance of

counsel because the trial court did not grant his request for substitute counsel. He

contends there was a complete breakdown in communication between himself and

his counsel and thus, substitute counsel was warranted. Alternatively, he argues the

trial court abused its discretion when it denied his motion for a continuance.

Appellant argues since the trial court denied his request for alternative counsel, it

should have granted his request for a continuance so that he and his attorney could

prepare for trial.

{¶17} The decision whether to remove court-appointed counsel and allow

substitution of new counsel is within to the sound discretion of the trial court; its

decision will not be reversed on appeal absent an abuse of discretion. State v.

Murphy, 91 Ohio St.3d 516, 523, 747 N.E.2d 765 (2001); State v. Brown, 7th Dist.

No. 12 MA 198, 2014-Ohio-4420, ¶ 7. An “abuse of discretion” implies an arbitrary,

unreasonable, or unconscionable attitude on the part of the court. State v. Adams,

62 Ohio St.2d 151, 404 N.E.2d 144 (1980).

{¶18} An indigent defendant does not have a right to choose a particular

attorney; rather, such a defendant “has the right to professionally competent,

effective representation.” State v. Evans, 153 Ohio App.3d 226, 2003–Ohio–3475,

792 N.E.2d 757, ¶ 30 (7th Dist.), citing State v. Murphy, 91 Ohio St.3d 516, 523, 747

N.E.2d 765 (2001). “Competent representation does not include the right to develop

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and share a ‘meaningful attorney-client relationship’ with one's attorney.” State v.

Gordon, 149 Ohio App.3d 237, 2002-Ohio-2761, 776 N.E.2d 1135, ¶ 12 (1st Dist.).

{¶19} In order for the court to discharge a court-appointed attorney, “the

defendant must show a breakdown in the attorney-client relationship of such

magnitude as to jeopardize the defendant's right to effective assistance of counsel.”

State v. Henness, 79 Ohio St.3d 53, 65, 679 N.E.2d 686 (1997), quoting State v.

Coleman, 37 Ohio St.3d 286, 525 N.E.2d 792 (1988), paragraph four of the syllabus.

That said, the right to counsel must be balanced against the court's authority to

control its docket, as well as its awareness that a “demand for counsel may be

utilized as a way to delay the proceedings or trifle with the court.” United States v.

Krzyske, 836 F.2d 1013, 1017 (C.A.6 1988); see, also, State v. Murphy, 91 Ohio

St.3d 516, 523, 747 N.E.2d 765 (2001).

{¶20} On the day of trial, September 26, 2016, counsel for Appellant renewed

Appellant’s motion for appointment of new counsel. The original motion had been

made one week prior to trial at the September 21, 2016 pretrial hearing. The pretrial

hearing was not transcribed for our review. However, on the day of trial the events

that transpired at the September 21, 2016 pretrial were discussed in conjunction with

the renewed request to appoint new counsel. Trial Tr. 8-18. The basis for the

original motion and the renewed motion was a complete breakdown of

communication between trial counsel and Appellant. Trial Tr. 8-9. Trial counsel

indicated that since the indictment Appellant had refused to communicate with

counsel. Trial Tr. 9. The trial court overruled the motion because Appellant was

causing counsel to be ineffective:

He’s entitled to the effective assistance of counsel but he cannot cause

the ineffectiveness by his refusal to cooperate. He can’t make you

ineffective and then argue that counsel is ineffective. So his refusal to

converse with you is not a grounds for removing you.

Trial Tr. 13.

{¶21} Appellant argues the above demonstrates there was a complete

breakdown of communication that warranted the appointment of new counsel.

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Furthermore, he contends the trial court abused its discretion when it did not permit

him to address the court about his complaint with his attorney.

{¶22} The Tenth Appellate District has stated, “when a defendant expresses

concerns or complaints regarding appointed counsel, the trial court has a duty to

inquire into the nature of the complaint, make such inquiry a part of the record, and

make a decision on the record.” State v. Bowman, 10th Dist. No. 06AP-149, 2006-

Ohio-6146, ¶ 35. When the motion was renewed on the day of trial, the trial court did

instruct Appellant not to answer or say anything unless he was called upon. Trial Tr.

8. A reading of the trial transcript reveals this instruction was given because at the

September 21, 2016 pretrial, when the motion for new counsel was made Appellant

did not act appropriately:

THE COURT: The pretrial was last Thursday?

MR. MASZCZAK [the prosecutor]: Wednesday.

THE COURT: Wednesday. Mr. Brown, you are not to answer or to say

anything unless you’re called upon. I’m talking to your lawyer. So I

don’t want you answering anything.

If you do, if you act inappropriately at trial – the only reason that

I’m mentioning this to you, normally I don’t have to do this, is because

of your conduct the other day at the pretrial.

When we’re in trial and I have a jury sitting here, any type of

misconduct by you at any time, you blurting something out, you

laughing, you shaking your head, you disagreeing, you showing

anything but sitting there like a perfect gentleman is going to result in a

contempt of court charge. So I want you to be aware of that. I’m not

somebody to mess around with.

The rules by this court are going to be followed by everybody.

So you are not permitted to respond, react, show disappointment or

approval or disapproval, or whatever. You just – your place is to watch

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this; let this thing go on. If you choose to participate, that would be by

testifying. It’s not by anything else. So I don’t want to hear your voice

again while I’m talking to these lawyers. Okay. Go ahead.

Trial Tr. 8-9.

{¶23} The trial court also noted at the sentencing hearing the inappropriate

behavior at the pretrial:

During the course of the trial the court – let me say this first: To listen

to you today and to listen to you at your pretrial last week is like you’re

two different people. You’re a whole lot different today than you were

last week. It kind of fascinates me. I don’t really understand why. I

don’t really care to know why. But two completely different people.

Sentencing Tr. 12.

{¶24} Furthermore, the statement given before the start of trial was not the

only time in this case a court had to admonish Appellant. At the initial appearance,

Judge Houser found Appellant in direct contempt of court:

Defendant found in direct contempt of court for statements made

to the court while walking away from the bench. The court had him

returned to the bench and gave the defendant the opportunity to clarify

his comments or recant them. The defendant did neither.

The defendant was found in direct contempt and sentenced to 5

days in jail to commence immediately.

8/2/16 J.E.

{¶25} Thus, the record in this case indicates the trial court was warranted in

directing Appellant to remain quiet when the motion to appoint new counsel was

renewed by counsel; Appellant’s past behavior warranted such instruction.

{¶26} That said, the trial court did permit to Appellant to express his concerns

about counsel on the record and the court inquired about those concerns on the

record. This occurred at the September 21, 2016 pretrial. Although the transcript of

the pretrial was not made a part of the record, the trial transcript and the judgment

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entry following the September 21, 2016 pretrial indicate at the pretrial the trial court

heard from Appellant, inquired about his concerns, and ruled on the motion to appoint

new counsel. When the motion was renewed, the trial court indicated the same

argument was made at the pretrial and overruled. Trial Tr. 12. Counsel indicated

Appellant wanted him to reraise the issue because Appellant did not believe he was

allowed to make motions. Trial Tr. 12-13. In response the court stated, “Well, he’s

wrong about that. Because the record will bear out that I did go through all of the so-

called motions that he wanted to present to the court, one of which was dismissing

you.” Trial Tr. 12-13. The judgment entry following the September 21, 2016 pretrial

also indicates all of Appellant’s motions, including the one requesting new counsel,

were addressed by the court:

The Court is in receipt of a letter sent from Defendant, an inmate

at the Mahoning County Justice Center. Said letter was opened by the

Court this date and reviewed by the Court in open Court during this

proceeding. This letter requested that counsel for Defendant, Attorney

Edward Hartwig, be removed as counsel of record for Defendant and

requested that a bond be set in this matter.

The State of Ohio addressed the Court regarding the letter, as

did Defendant and his counsel.

9/27/16 J.E.

{¶27} The judgment entry further stated Appellant addressed the court

regarding issues related to the case without consulting defense counsel. The court

considered those arguments and gave Appellant the choice to proceed pro se or with

counsel. Appellant did not want to speak to his attorney, but did not want to proceed

pro se. The court then addressed and overruled three pro se requests made by

Appellant. The judgment entry indicated the case would proceed to trial on

September 26, 2016. 9/27/16 J.E.

{¶28} Consequently, the record does indicate the trial court heard from

Appellant, inquired into his concerns about counsel, and ruled on the request.

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Therefore, Appellant’s argument that the trial court did not let him air his concerns

about trial counsel fails.

{¶29} Defense counsel does state on the record that since Appellant was

indicted he refused to communicate with him to assist in the defense. Trial Tr. 9-10.

This statement does show there was a lack of communication between Appellant and

defense counsel. However, as the trial court noted, this lack of communication was

caused by Appellant. In some instances, the failure to cooperate and communicate

with counsel is nothing more than “stalling” and “playing games with the court.” State

v. Hollingsworth, 10th Dist. Nos. 07AP-863, 07AP-864, 07AP-865, 2008-Ohio-2424,

¶7.

{¶30} In addition to noting Appellant was the cause for the lack of

communication with defense counsel, the trial court discussed the complexity of this

case. The trial court noted this is a simple case; it’s a he said/she said type of case,

there is no issue of identity, and there is no scientific evidence, such as fingerprinting,

forensics, or DNA. Trial Tr. 10-12. Defense counsel noted, at most, there is a

potential self-defense claim. Trial Tr. 11. This is an accurate statement of the

complexity of the case.

{¶31} Given the trial court’s reasoning for both Appellant’s actions and the

complexity of the case, we conclude the trial court did not abuse its discretion in

denying the motion to appoint new counsel.

{¶32} Appellant’s next argument under this assignment of error is the trial

court abused its discretion when it denied his request for a continuance. Appellant

requested a continuance after the trial court denied the renewed motion to appoint

new counsel. Trial Tr. 13-14. Appellant wanted additional time to prepare for trial

since the motion to appoint new counsel was denied. The trial court overruled the

continuance request. Appellant contends the trial court’s denial of the continuance

was based on its blanket policy to not grant any continuances after the final pretrial

hearing.

{¶33} “The grant or denial of a continuance is a matter which is entrusted to

the broad, sound discretion of the trial judge. An appellate court must not reverse the

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denial of a continuance unless there has been an abuse of discretion.” State v.

Unger, 67 Ohio St.2d 65, 67, 423 N.E.2d 1078 (1981).

{¶34} In assessing whether the trial court abused its discretion in denying

appellant's request for a continuance, we consider: (1) the length of the delay

requested; (2) whether other continuances have been requested and received; (3)

the inconvenience to litigants, witnesses, opposing counsel and the court; (4)

whether the requested delay is for legitimate reasons or whether it is dilatory,

purposeful, or contrived; (5) whether appellant contributed to the circumstance which

gives rise to the request for a continuance; and (6) other relevant factors, depending

on the unique facts of each case. Id. at 67–68.

{¶35} The United States Supreme Court has stated, “There are no

mechanical tests for deciding when a denial of a continuance is so arbitrary as to

violate due process. The answer must be found in the circumstances present in every

case, particularly in the reasons presented to the trial judge at the time the request is

denied.” Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, (1964).

{¶36} In considering both Ungar and Unger, we conclude the trial court did

not abuse its discretion in denying the motion to continue. Although this was the first

continuance requested and there would not be too much inconvenience to the

witnesses and state, the request was made moments before the trial was scheduled

to start. Appellant’s failure to communicate was the reason for the request; the

reason for the request was dilatory and contrived. Although the trial court did indicate

continuances are granted at pretrial and insinuated it was the policy of the court to

not grant one after the final pretrial, the trial court’s primary reason for denying this

continuance motion was because it believed Appellant was “manipulating the

process” of the court. Trial Tr. 14. The motion for new counsel was made at the

pretrial and was denied. Appellant did not ask for a continuance at the pretrial, but

instead waited until moments before trial to move for a continuance to allow him and

his counsel to prepare a defense. Appellant had refused to communicate with his

counsel following his indictment up until the renewed motion for new counsel. He

refused to communicate with his counsel even after he was told at the pretrial hearing

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that new counsel would not be appointed and trial was scheduled for the following

week:

THE COURT: But see, he’s manipulating the process of this court. * * *

He is one of defiance and rejection of anything and everything rather

than to listening. That’s what it appears to be.

The court went through great lengths to explain the process to

him. And nonetheless, there was nothing but rejection of anything that I

had to say; and apparently whatever you had to say. But last

Wednesday we discussed the fact that this case was going forward

today. * * *

So I don’t see where more time would provide any particular

advances. I explained to the defendant last week that you were

appointed counsel. And I’m not going to grant him some other lawyer

that he wouldn’t talk to either. He just doesn’t want to talk to anybody.

And he hasn’t hired one. So that’s the end of that story I guess. What

else?

Trial Tr. 14-17.

{¶37} Given the trial court’s reasoning and the circumstances in this case, the

trial court did not abuse its discretion in denying the motion for continuance.

{¶38} For the reasons expressed above, this assignment of error is meritless.

Second Assignment of Error

“The conviction for menacing by stalking was based on insufficient evidence

as a matter of law.”

{¶39} Sufficiency of the evidence is a question of law dealing with legal

adequacy of the evidence. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d

541 (1997). It is the legal standard applied to determine whether the case may go to

the jury or whether the evidence is legally sufficient as a matter of law to support the

verdict. State v. Smith, 80 Ohio St.3d 89, 113, 684 N.E.2d 668 (1997). In viewing a

sufficiency of the evidence argument, the evidence and all rational inferences are

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evaluated in the light most favorable to the prosecution. State v. Goff, 82 Ohio St.3d

123, 138, 694 N.E.2d 916 (1998). A conviction cannot be reversed on grounds of

sufficiency unless the reviewing court determines no rational juror could have found

the elements of the offense proven beyond a reasonable doubt. Id.

{¶40} Menacing by stalking is defined as:

No person by engaging in a pattern of conduct shall knowingly cause

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

the other person or a family or household member of the other person

or cause mental distress to the other person or a family or household

member of the other person. In addition to any other basis for the other

person's belief that the offender will cause physical harm to the other

person or the other person's family or household member or mental

distress to the other person or the other person's family or household

member, the other person's belief or mental distress may be based on

words or conduct of the offender that are directed at or identify a

corporation, association, or other organization that employs the other

person or to which the other person belongs.

R.C. 2903.211(A)(1).

{¶41} The indictment names Celeste Wolfe as the victim of the menacing by

stalking charge. Menacing by stalking requires a “pattern of conduct.” Appellant

states there was no evidence of a “pattern of conduct” regarding Celeste. He argues

the only event was the waving of the gun in the street. The state contends the

“pattern of conduct” included the punching of Celeste in the face, which resulted in

the felonious assault conviction, and the waving of the gun in the street incident that

happened shortly after the felonious assault. Appellant does not explain why the

assault is not considered part of menacing by stalking.

{¶42} “Pattern of conduct” is defined by statute as, “two or more actions or

incidents closely related in time, whether or not there has been a prior conviction

based on any of those actions or incidents.” R.C. 2903.211(D)(1). Given this

definition the felonious assault of Celeste can be considered part of the “pattern of

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conduct.” Therefore, if the felonious assault meets the other requirements in the

statute, such as being close in time and Celeste believing Appellant would harm her,

then the state provided sufficient evidence of a “pattern of conduct.”

{¶43} We conclude the state provided sufficient evidence the felonious

assault was close in time to the gun waving incident. The evidence at trial was the

two incidents occurred on the same night and probably within an hour time span. Two

appellate districts have stated there is “no requirement that the pattern of conduct be

proved by events from two different days.” State v. Chandler, 1st Dist. No. C–030008,

2004–Ohio–248, ¶ 10, citing State v. Scruggs, 136 Ohio App.3d 631, 634, 737

N.E.2d 574 (2d Dist.2000). Since “closely related in time” is not defined by the

statute, the trier of fact is permitted to determine what is “closely related in time” on a-

case-by-case basis. State v. Thomas, 1st Dist. Nos. C-130620, C-130623, C-

130621, C-130624, C-130622, 2014-Ohio-2803, ¶ 9, citing Ellet v. Falk, 6th Dist. No.

L–09–1313, 2010–Ohio–6219, ¶ 22.

{¶44} The state presented evidence the punching incident occurred at the

house. Appellant left and then Celeste, Jeronica, and a few other people went to find

Appellant because he took Celeste’s car keys. They found him on Judson Avenue

where he waved a gun at them and said he would kill them. This is sufficient

evidence the events were close in time and not just one event. The jury could

determine the separate locations and separate times established a “pattern of

conduct.”

{¶45} Menacing by stalking also requires the offender to cause the other

person to believe the offender will cause physical harm to the other person or a

family member. Celeste Wolfe testified that when the gun incident occurred she

believed Appellant would cause her additional physical harm; she was concerned he

would shoot her. Trial Tr. 210. As to the felonious assault, Celeste did not testify she

believed Appellant would cause her physical harm or mental distress. However, that

specific testimony was not the only means to provide evidence of belief of harm.

State v. Boden, 7th Dist. No. 01 JE 9, 2002-Ohio-5043, ¶ 19 (indicating prior assault,

offender being bigger than victim, and repeated contacts with offender could support

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the conclusion offender caused the victim to be in fear of physical harm). Belief of

harm can be evinced by past events, size differences between the perpetrator and

victim, and other factors. Id.

{¶46} Celeste indicated there was a loud argument between her mother and

Appellant; she was upstairs while they were downstairs and she could easily hear the

argument. Trial Tr. 208. She went down stairs to try to “move” her mother away from

Appellant. Trial Tr. 221. She knew because of her size and his size she would not be

able to “remove” him from the house, so she just asked him to leave and that is when

he “charged” her on the steps. Trial Tr. 220. In comparing the assaults on Celeste

and Krystal, Jeronica testified because of the size differences Appellant injured

Celeste, but “he couldn’t do nothing to Krystal.” Trial Tr. 195. Since Celeste testified

at trial, the jury was able to see Celeste’s size compared to Appellant’s size. Both

Jeronica and Celeste also testified Appellant kept hitting Celeste and then

immediately left. Trial Tr. 182, 208. Celeste had to be taken to the emergency room

because of the assault; she lost consciousness, suffered a broken nose, and had a

facial laceration. Trial Tr. 187, 213, 236.

{¶47} The above evidence is sufficient to show Appellant was bigger and

stronger than Celeste, there was a loud argument between her mother and Appellant,

Celeste wanted to move her mother away from Appellant, and the assault happened

quickly. This was sufficient evidence to establish Appellant caused Celeste to be

afraid for her physical safety and for her mother’s.

{¶48} This assignment of error is meritless; the state met its burden of

production for the menacing by stalking charge.

Third Assignment of Error

“The trial court below committed error prejudicial to defendant by failing to

properly follow the sentencing criteria set forth in O.R.C. Section 2929 resulting in Mr.

Brown receiving a sentence which is contrary to law.”

{¶49} Appellate courts review felony sentences under the standard set forth in

R.C. 2953.08(G)(2). State v Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002, 59

N.E.3d 1231, ¶ 1. Under R.C. 2953.08(G)(2) an “appellate court may vacate or

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modify a felony sentence on appeal only if it determines by clear and convincing

evidence that the record does not support the trial court's findings under relevant

statutes or that the sentence is otherwise contrary to law.” Id.

{¶50} When a trial court imposes consecutive sentences it must make the

required R.C. 2929.14(C)(4) findings at the sentencing hearing, and it must

incorporate those findings into the sentencing entry. State v. Bonnell, 140 Ohio St.3d

209, 2014–Ohio–3177, 16 N.E.3d 654, ¶ 29. We have previously explained R.C.

2929.14(C)(4) requires a sentencing court to find: “(1) consecutive sentences are

necessary to protect the public from future crime or to punish the offender, (2) that

consecutive sentences are not disproportionate to the seriousness of the defendant's

conduct and to the danger he poses to the public, and (3) one of the findings

described in subsections (a), (b) or (c).” State v. Jackson, 7th Dist. No. 15 MA 93,

2016–Ohio–1063, ¶ 13. Subsections (a), (b), and (c) provide:

(a) The offender committed one or more of the multiple offenses while

the offender was awaiting trial or sentencing, was under a sanction

imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the

Revised Code, or was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of one

or more courses of conduct, and the harm caused by two or more of the

multiple offenses so committed was so great or unusual that no single

prison term for any of the offenses committed as part of any of the

courses of conduct adequately reflects the seriousness of the offender's

conduct.

(c) The offender's history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future

crime by the offender.

R.C. 2929.14(C)(4)(a)–(c).

{¶51} Appellant does not dispute the trial court made the first two required

findings. His argument instead focuses on the third required finding – a finding of

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either (a), (b), or (c). Appellant asserts the trial court made no division (a) finding and

the record does not support the trial court’s division (b) finding. As such, he contends

the sentence is contrary to law.

{¶52} Appellant is correct the trial court did not make a division (a) finding.

However, the trial court did make a division (b) and (c) finding. At the sentencing

hearing, it stated, “The court further finds that the harm in this case was so great or

unusual that a single term does not adequately reflect the seriousness of the

offender’s conduct, and that his criminal history shows that consecutive terms are

needed to protect the public." Sentencing Tr. 16. In the judgment entry it stated:

The Court further finds that pursuant to O.R.C. 2929.14(C)(4)(b) at least

two of the multiple offense were committed as part of one or more

courses of conduct, and the harm caused by the two or more of the

multiple offenses so committed was so great or unusual that no single

prison term for any of the offenses committed as part of any of the

courses of conduct adequately reflects the seriousness of the offender’s

conduct; and finds pursuant to O.R.C. 2929.14(C)(4)(c) that the

offender’s history of criminal conduct demonstrates that consecutive

sentences are necessary to protect the public from future crime by the

offender.

10/7/16 J.E.

{¶53} The trial court was only required to make one finding, either (b) or (c).

Appellant does not argue the (c) finding was not supported by the record. As such,

his argument fails because even if we could conclude the (b) finding was not

supported by the record, the (c) finding was made and it was supported by the

record.

{¶54} That said, it is noted that both findings are easily supported by the

record. The trial court discussed Appellant’s criminal record at the sentencing

hearing. Sentencing Tr. 7. He has a 1999 juvenile adjudication for aggravated

robbery, a 2000 attempted drug abuse conviction, a 2003 carrying a concealed

weapon conviction, a 2006 misdemeanor obstructing conviction, a 2007

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misdemeanor assault conviction, a 2008 felony for unauthorized use of a motor

vehicle conviction, a 2013 weapons under disability conviction, and a 2016 fleeing

and alluding conviction. The court also indicated Appellant is a convicted felon and

was not permitted to have a firearm on his person. However, in committing the crime

of menacing by stalking he used a gun; Appellant admitted he had a gun and waved

it in the street. Sentencing Tr. 14-15. The court further noted Appellant has

previously served time in the penitentiary but continues to commit crimes.

Sentencing Tr. 15. Thus, the division (c) finding is supported by the record and was

not contrary to law.

{¶55} The division (b) finding is also supported by the record. The undisputed

facts of this case are Appellant punched Celeste multiple times breaking her nose,

lacerating her face, and causing her to lose consciousness. Appellant left the house

and when Celeste and Jeronica found him a little while later, Appellant waved a gun

at them in the middle of Judson Avenue and told them he would kill them. These

facts support a division (b) finding; the finding was not contrary to law.

{¶56} For those reasons, this assignment of error is meritless.

Conclusion

{¶57} All three assignments of error lack merit. The conviction is affirmed.

Waite, J., concurs.

DeGenaro, J., concurs.