text:
    STATE of Ohio EX REL. Kenneth J. CAHILL, in his Individual Capacity and on Behalf of the Village of Madison, et al., Petitioners-Appellants, v. VILLAGE OF MADISON, et al., Respondents-Appellees.
    NOS. 2017-L-100 2017-L-101
    Court of Appeals of Ohio, Eleventh District, Lake County.
    Decided April 16, 2018
    Kenneth J. Cahill, pro se, Dworken & Bernstein Co., L.P.A., 60 South Park Place, Painesville, OH 44077 (Plaintiff-Appellant).
    Geoffrey W. Weaver, 8043 Chardon Road, Kirtland, OH 44094 (For Plaintiff-Appellant, John R. Hamercheck).
    Joseph P. Szeman, Madison Village Law Director, 10 West Erie Street, Suite 106, Painesville, OH 44077 (For Defendants-Appellees, Dan Donaldson, Duane Frager, Greg Mabe, Ken Takacs, Mark Vest, Sam Britton, and Village of Madison).
    Gary L. Pasqualone, Curry and Pasqualone, 302 South Broadway, Geneva, OH 44041 (For Defendant-Appellee, Madison Joint Fire District).
   DIANE V. GRENDELL, J.

{¶ 1} Petitioners-appellants, Kenneth J. Cahill and John R. Hamercheck, appeal the judgment of the Lake County Court of Common Pleas, dismissing their Amended Petition for Writ of Mandamus and Application for Injunctive Relief. The issues before this court are whether a village council's decision to compensate a fire district for its leasehold interest in property owned by the village, when the village is not contractually obligated to do so, constitutes an abuse of corporate power and/or misapplication of public funds; whether a conflict of interest prevented village council members who were also members of the fire district board of trustees as representatives of the village from participating in the decision to offer compensation to the fire district; and whether a party is entitled to the production of documents which are not relevant to the claims actually raised in the complaint. For the following reasons, we affirm the decision of the court below.

{¶ 2} On December 23, 2014, the petitioners filed a Petition for Writ of Mandamus and Application for Injunctive Relief in the Lake County Court of Common Pleas against respondent-appellees, the Village of Madison, Sam Britton (in his official capacity as Mayor of Madison Village), Don Donaldson, Duane Frager, Greg Mabe, Ken Takacs, and Mark Vest (in their official capacities as councilmen of Madison Village).

{¶ 3} On January 16, 2015, the respondents filed their Answer.

{¶ 4} On February 9, 2015, the petitioners filed, pursuant to court order, an Amended Petition adding the Madison Joint Fire District as a necessary party.

{¶ 5} On February 13, 2015, the respondents filed their Answer to the Amended Petition.

{¶ 6} On March 1, 2015, the Madison Joint Fire District filed a Separate Answer.

{¶ 7} On September 20, 2016, the petitioners filed a Motion to Compel the production of certain documents.

{¶ 8} On July 18, 2017, the trial court ruled on the merits of the Petition, "the parties hav[ing] agreed and stipulated that all materials have been submitted and that this matter may be decided based on the filings," and denied the petitioners relief. The court determined that the request for production had been answered and was not determinative of the matter before it. The court found as follows:

Petitioners are taxpayers in the Village of Madison. They are also two members of the Madison Village Council. This action is brought against various public officials of the Village and several public entities including the Village of Madison and the Madison Fire District. Three of the public officials named are also members of the Village Council. Petitioners bring the action seeking to "[P]revent misapplication of Village funds and abuse of corporate powers in connection with a proposed transaction between the Village of Madison and the Madison Fire District".
The Madison Fire District was formed by the Village and Madison Township in 1971. The Fire District has a Board of six Trustees, three of whom are members of the Madison Village Council. The other three trustees of the Fire District are from Madison Township. Madison Village Council members Frager, Takacs, and Vest sit on the Fire District Board of Trustees. They sit solely because they are Village Council members. The Village Council is required to name three of its members to the Fire District Board of Trustees. The three members sit as part of their official functions as members of the Village Council.
In 1982 the Village and the Fire District entered into a lease involving a parcel of real estate known as Fire Station No. 1. The property is owned by the Village and leased to the Fire District. The lease provides that upon termination of the lease, any and all improvements shall become the property of the Village. A memorandum of understanding with similar terms was entered into in 2009. This document provided that if Station No. 1 was not being used as a fire station, then the building and real estate would revert to the control of the Village. Numerous improvements were made to the real estate by the Fire District during the lease period. In 2013 the Fire District moved its headquarters from Station No. 1 and by the end of 2013 the premises was not being operated as a fire station.
In August 2014 Madison Village Council considered legislation to evict the Fire District. The legislation failed. The legislation failed as it had only two affirmative votes. The no votes included the three Council members who were also members of the Fire District Board. Shortly thereafter the Village Council approved legislation to pay $189,000.00 as a buyout of the Fire Districts interest along with any claims the Fire District might have to the improvements made during the lease of the property. There also was a small claim for some repair work on the premises. During this vote the three Council members, who also were Trustees of the Fire District, voted in favor of the buyout. The three voting in favor were Frager, Takacs, and Vest. Without the three votes the legislation approving the buyout and payment would have failed. Petitioners who are also members of the Village Council voted no on the buyout.
Petitioners thereafter requested the Village Law Director [to] commence an action for the misapplication of taxpayer funds with respect to the buyout payment to the Fire District. This request was denied.
Petitioners then commenced this action. Petitioners claim the payment of the $189,000.00 violates the lease and the Memorandum of Understanding between the Village of Madison and the Madison Fire District. Petitioners claim the payment is a misapplication of funds and an abuse of power in violation of Ohio Revised Code section 733.56. Petitioners claim the three Council members who also sat on the Fire District had a conflict of interest and thus could not participate in the vote to fund the buyout. Petitioners also claim the buyout itself is an illegal use of taxpayer funds.
The first issue before the Court deals with whether a conflict of interest existed involving the three members of the Village Council who also sat on the Fire District Board of Trustees. It should be noted that the Council members only sat on the Fire District because they were members of Council. Ohio law permits such dual positions as to joint fire districts. This is not contested by petitioners. Petitioners claim the conflict was in the three members of Village Council voting to use Madison Village funds to pay the Madison Fire District. The question of a conflict of interest was submitted to the Ohio Ethics Commission. The Ohio Ethics Commission issued an opinion dated February 16, 2016. In essence it finds no impermissible conflict of interest. This Court can find no conflict in the facts presented. Ohio law permits a Village council member to serve on a board of another entity in their official capacity as part of their official duties. Thus, the Village Council members serve on the Fire District solely because they are Village Council members. The Fire District was created pursuant to Ohio Revised Code Section 505.371. The Trustees of the Fire District are by its very terms made up from the Village Council and the Township Trustees. This arrangement has existed for almost fifty years since the inception of the Fire District. There is no prohibition from these members voting on issues that may also benefit the Fire District as in the instant issue. There is no violation of the Ohio Revised Code section 102.03. As a matter of law there is no prohibition for the Council Members to participate in the determination of the buyout with the Fire District.
Next this Court is charged with the determination as to whether the buyout passed by the Village Council was a misapplication of public funds? The question is straight forward. The question before the court is confined to * * * whether the buyout is a misapplication of public funds as a matter of law. The Court answers this issue in the negative. This court cannot make such a determination that the payment is beyond the power of the Village Council to legally make such a determination. This is a legislative function and by law it is a matter left to the Village Council to decide. The Court may not substitute its determination for that of the Village Council. Further it is not for this Court to decide whether any such buyout was a wise expenditure of taxpayer funds. As to whether the buyout was a wise use of funds; that is left for the voters of the Village of Madison to determine at the ballot box.

{¶ 9} On August 15, 2017, the petitioners filed Notices of Appeal. On appeal they raise the following assignments of error:

{¶ 10} "[1.] Whether the trial court abused its discretion when it found the court had no authority to determine if the payment by Madison Village was appropriate."

{¶ 11} "[2.] Whether the trial court abused its discretion by finding that there was no conflict of interest when three Madison Village councilmen who also served as Board Members of the Madison Fire District voted to pay $189,000.00 to the Fire District."

{¶ 12} "[3.] Whether the trial court abused its discretion when it found that the request for production of documents had been answered and further that it is not a determinative matter before the court."

{¶ 13} The Ohio Revised Code provides that a taxpayer, under certain conditions not in dispute herein, "may institute suit in his own name, on behalf of the municipal corporation." R.C. 733.59. The relief available in such suits includes: "an order of injunction to restrain the misapplication of funds of the municipal corporation, the abuse of its corporate powers, or the execution or performance of any contract made in behalf of the municipal corporation in contravention of the laws or ordinance governing it, or which was procured by fraud or corruption," and, "[i]n case an officer or board of a municipal corporation fails to perform any duty expressly enjoined by law or ordinance, * * * a writ of mandamus to compel the performance of the duty." R.C. 733.56 and 733.58 respectively.

{¶ 14} Here, the petitioners sought "[a]n injunction * * * prohibiting [respondents] from paying the Madison Fire District the $189,000 provided for in the Resolution [No. 15-2014]" and "[a] writ of mandamus requiring the Village of Madison to take control of the Fire Station No. 1 in accordance with the terms of the Lease and/or Memorandum of Understanding."

{¶ 15} Decisions regarding the issuance of a writ of mandamus or the granting of an injunction are generally reviewed under the abuse of discretion standard. Patton v. Springfield Bd. of Edn. , 40 Ohio St.3d 14, 15, 531 N.E.2d 310 (1988) ("[t]he writ of mandamus * * * is a high prerogative writ, and its issuance rests in the sound discretion of the court"); Perkins v. Quaker City , 165 Ohio St. 120, 125, 133 N.E.2d 595 (1956) ("unless there is a plain abuse of discretion on the part of trial courts, in granting or refusing injunctions, reviewing courts will not disturb such judgments").

{¶ 16} Under the first assignment of error, the petitioners argue that "[t]he payment of $189,000 to the Fire District in order to buyout the Leasehold interest and compensate the Fire District for * * * improvements is in direct contravention of the terms of the Lease and the Memorandum of Understanding." Appellants' brief at 7. As "there was no legal basis for the payment of this money," it was error for the trial court to defer to the Village Council regarding the expenditure.

{¶ 17} We agree with the trial court that the decision to compensate the Fire District for its leasehold interest in the premises was discretionary with the Village Council and did not constitute an abuse of corporate powers. The abuse of corporate powers has been described as "the unlawful exercise of powers possessed by the corporation, as well as the assumption of power not conferred." (Emphasis omitted.) (Citation omitted.) Porter v. Oberlin , 1 Ohio St.2d 143, 146, 205 N.E.2d 363 (1965). "Taxpayer actions, involving an abuse of corporate powers, are carefully restricted by court decisions." Columbus ex rel. Willits v. Cremean , 27 Ohio App.2d 137, 149, 273 N.E.2d 324 (10th Dist.1971). One such restriction establishes "that public officials who act in good faith, and cannot be accused of fraud or collusion, have a range of discretion which courts respect and such court will not substitute their judgment for that of the public official." Id. ; Cincinnati ex rel. Ritter v. Cincinnati Reds, L.L.C. , 150 Ohio App.3d 728, 2002-Ohio-7078, 782 N.E.2d 1225, ¶ 40 (1st Dist.) ("a taxpayer's suit cannot be 'used to control or interfere with the discretion of a municipal board,' absent fraud or a gross abuse of discretion") (citation omitted).

{¶ 18} The enactment of Resolution No. 15-2014 authorizing the Madison Village mayor to enter an agreement with the Fire District to buyout its leasehold interest was not an unlawful exercise of municipal power nor was it an assumption of power not conferred. Rather, the petitioners claim that the Resolution constitutes a gross abuse of legislative discretion in that it was wholly unnecessary to pay the Fire District anything to regain the premises. A review of the record demonstrates, however, that the decision to compensate the Fire District did not arise from improper motive or gross incompetence. The Council Minutes recording the discussion of Resolution No. 15-2014 frankly admit that there was no legal obligation to pay the money, but that it should be paid for the sake of maintaining the Village's relationship with the Fire District in light of certain misrepresentations/misunderstandings between the two entities:

Mr. Cahill asked Mr. Vest to explain the legal interests that the fire district has [in the premises]. * * * Mr. Vest stated that it is his understanding that they are the improvements made to the building. Mr. Frager added that it was for improvements valued at $250,000.00 * * * Mr. Cahill stated that the lease dated 1982 specifically states that any building improvements become property of the Village at the termination of the lease. He stated that this was again stated in the Memorandum of Understanding (M.O.U.) dated October, 2009. He asked for documentation that shows that the Village is obligated to pay the fire district. Mayor Britton stated that there is none and that is why he brought it before Council. * * * Mr. Cahill stated that we have the right to serve the fire district with notice to vacate and not pay them anything. He asked Mr. Vest for explanation. Mr. Vest replied that the Village has a good working relationship with the township working together as a fire district and he does not feel that a lot of good will would become of us [sic] not compensating them for the improvements. * * * Mr. Cahill stated that this money should be spent on other needs of the Village. He stated that the fire district was never charged any rent and he feels that this is far too much money to be spent for good will. * * * Mr. Cahill stated that he has not seen any documentation that was dually [sic] signed that states that the Village is required to compensate the fire district for the improvements made to fire station number one. Mr. Takacs stated that there is no legal obligation of the Village to pay anything for lease-hold interests for the improvements of that fire station. Mr. Takacs provided details of the decision to improve stations one and two. He added that the fire district made assurances to the community that they would not spend the dollars to improve station one and then 'hand it over' to the Village to be used for a road garage. He stated that there is a credibility issue at hand. He stated that he made a commitment to not 'give away' the cost of the improvements to the Village. He added that the responsible and moral obligation is that we assured people that we were not going to do this. Mr. Takacs stated that the fire district did not initiate this conversation. This conversation began with Mayor Britton and Mr. Takacs trying to address a situation with the police department garage. * * * [Mr. Cahill] stated that the Mayor and Mr. Takacs entered into conversations with the fire district without knowing all of the facts. He added that they made commitments to the fire district and then the lease surfaced. Mr. Cahill stated that mistakes are made, but the fact of the matter is that there is nothing in writing that states that there should be compensation to the fire district for the addition/improvements that they made.

{¶ 19} In legal terms, the Village Council was motivated by equitable considerations (somewhat akin to an estoppel claim) in its decision to authorize payment to the Fire District despite the lack of legal necessity. The strength of those considerations is certainly debatable, but the courts are not the proper forum in which to hold debate over such matters better suited to legislative and democratic processes. Lloyd v. Toledo , 31 Ohio C.D. 192, 197 (1912) ("courts have ever hesitated to arrogate to themselves the right to be the censor or guardian of public officers who act in good faith").

{¶ 20} The petitioners cite to Deluca v. Aurora , 144 Ohio App.3d 501, 760 N.E.2d 880 (11th Dist.2001), as an example of a successful taxpayer challenge to a municipal contract. Deluca is readily distinguishable in that the contract at issue therein was "to prevent performance of the alleged illegal employment contract." Id. at 507, 760 N.E.2d 880. The petitioner in Deluca prevailed because the challenged contract was in conflict with the municipal charter. Id. at 512, 760 N.E.2d 880 ("[p]aragraphs one and seven of the employment contract indisputably conflict with Section 6.01 of the Aurora Charter," thus rendering the contract "invalid").

{¶ 21} In the present case, there is no such conflict or claim of illegality. The Village Charter may impose a duty upon the mayor to "[s]ee that all terms and conditions imposed in favor of the Municipality * * * in any * * * contract to which the Municipality is a party are faithfully kept and performed." Charter of the Village of Madison, Article III, Section 3.6(a)(4). But this provision does not prevent the mayor and Village Council from modifying or abrogating such agreements in the exercise of their discretion on behalf of the municipality. Moreover, we note that the 1982 lease expressly contemplated modification with respect to compensation for improvements: "All additions and improvements made by Lessee, * * * shall become the property of Lessor on the termination of this Lease, unless otherwise provided in writing."

{¶ 22} The first assignment of error is without merit.

{¶ 23} In the second assignment of error, the petitioners maintain that Resolution No. 15-2014 was invalid due to three members of the Village Council who passed the Resolution (Frager, Takacs, and Vest) having a conflict of interest as they were also members of the Madison Fire District Board of Trustees.

{¶ 24} The Madison Fire District was created pursuant to R.C. 505.371(B), which provides that "[t]he governing body of the joint fire district shall be a board of fire district trustees, which shall include one representative from each board of township trustees and one representative from the legislative authority of each municipal corporation in the district." In creating the Madison Fire District, Madison Village and Madison Township determined that the board of trustees "shall be comprised of the three (3) Madison Township Trustees and * * * three (3) members of the Madison Village Council as the latter are appointed by said council from time to time." Council Working Groups Manual for the Village of Madison, Ohio.

{¶ 25} During the course of this litigation, the petitioners twice sought the opinion of the Ohio Ethics Commission as to whether Frager, Takacs, and Vest violated Ohio ethics law by participating in the negotiation and passage of the municipal resolution authorizing the payment of compensation to the Fire District by the Village.

{¶ 26} In a response given on November 12, 2015, the Commission noted (without the issuance of an advisory opinion) that "where a public official is serving with a second public agency in his 'official capacity,' the Ethics Law neither prohibits the official from serving both agencies nor prohibits the official from actively participating in all matters before each agency." See Advisory Opinion No. 84-001, 1984 WL 49990, *1 (where an official serves the second agency in his official capacity, "there would not be a dual interest in which private considerations would detract from his serving the public interest").

{¶ 27} In response to the petitioners' request for a "confidential investigation to determine whether the public officials in question have violated the ethics law," the Commission declined to do so by a response given on February 16, 2016: "the Ohio Ethics Commission has no authority to respond to the issues you raised because Village of Madison Council Members Duane Frager, Ken Takcas [sic], and Mark Vest are serving on the Madison Joint Fire District Board of Trustees in their official capacity as council members and no other conflict of interest exists."

{¶ 28} Despite the Ethics Commission's determination, the petitioners maintain that Frager, Takacs, and Vest do not satisfy the conditions for serving in an official capacity. According to the Commission, four criteria must be met for a public official to be deemed to serve on the board of a second public agency: "(1) the governmental entity must create or be a participant in the non-profit corporation; (2) any public official or employee connected with the jurisdiction, including a council member, may be designated to serve on the non-profit corporation, but the elected legislative authority or the appointed governing body must formally designate the office or position to represent the governmental entity; (3) the public official or employee must be formally instructed to represent the governmental entity and its interests; and (4) there must be no other conflict of interest on the part of the designated representative." Id. at *2; Advisory Opinion No. 99-004, 1999 WL 1335146, *4-5.

{¶ 29} The petitioners contend that Frager, Takacs, and Vest "were never formally instructed to represent the interests of the Village of Madison." Reply brief at 6. We disagree. Initially we note that the third criterion appears essentially duplicative of the second one. As a practical matter, Council members serving on the Fire District's Board of Trustees are advised by the Working Groups Manual adopted by motion of the Village Council that they are to work "for the good of government and residents of our Village" and "ensure that its operations are conducted in an ethical and legal manner so as to promote the Village's reputation as an efficient, progressive body in the community, county & state." Such language sufficiently instructs Council members that they are to represent the Village's interest by their membership on the Board of Trustees.

{¶ 30} We also knowledge the authority cited by the respondents holding that courts will defer to the Ethics Commission when municipal action is challenged on the grounds of conflict of interest. Warren ex rel. Bluedorn v. Hicks , 124 Ohio App.3d 621, 629, 707 N.E.2d 15 (11th Dist.1997) ("the trial court did not err by stating that the injunction proceeding was not the appropriate forum for [invalidating the city council's passage of compensation ordinances]," as "[t]he proper mechanism for challenging the propriety of the pre-term compensation increases is the filing of a complaint by the Ohio Ethics Commission"); State ex rel. Powers v. Curtis , 12th Dist. Clinton No. CA2002-10-039, 2003-Ohio-6104, 2003 WL 22700766, ¶ 29 (declining to remove a council member from office even if his election was the result of criminal conduct); Mather v. Springfield Twp. , 6th Dist. Lucas No. L-94-196, 1995 WL 302307, *3 (May 19, 1995) (where it was contended that "the Commission's approval of the zoning change application was illegal * * * because [the chairman] had a conflict of interest, * * * the remedy is to notify the Ethics Commission, who conducts an investigation") (citation omitted).

{¶ 31} The second assignment of error is without merit.

{¶ 32} In the third and final assignment of error, the petitioners contend that the trial court erred by not compelling the production of a document alleged to be in the possession of respondents. The document in question was described as follows in the petitioners' original Request for Production: "Madison Fire District Invoice # 14-001 and an itemized list of claimed damages relating to concrete." Petitioners assert the relevance of this document by reference to the following averment from the Amended Complaint:

Mayor Britton initially proposed the transaction reflected in the Resolution during an unrelated Executive Session, whereby Mayor Britton proposed Madison Village would pay the Fire District a total sum of One Hundred and Eighty-Nine Thousand Dollars ($189,000.00) with One Hundred and Eighty-Five Thousand Dollars ($185,000.00) for the "claimed leasehold interest" in Station One, and Four Thousand Dollars ($4,000.00) for the "claimed damages" to the Fire District for additional costs relating to concrete work at new Station No. 3 resulting from the Madison Village Southerly Waterline Improvement Project.

{¶ 33} Counsel for the Village respondents replied that "there's no such invoice in the Village's files or any list of damages related to concrete on Fire District property." Counsel for the Fire District did not respond. The trial court ruled that the production request was "not on a determinative matter before the Court."

{¶ 34} The petitioners maintain that the inability and/or unwillingness to produce the invoice "directly questions the credibility and competence" of the respondents and violates Ohio public records law (Open Meetings Act). Appellants' brief at 21 ("the application of the public record(s) in a formal action taken in executive session is invalid").

{¶ 35} We agree with the trial court that the production of the invoice was not relevant or necessary to determine the issues raised by the petitioners. Presuming that the invoice exists and that it was considered in determining the amount of money that was paid to the Fire District, our analysis of the prior assignments of error would not change. It has no bearing on whether the decision to compensate the Fire District was discretionary with the Village or whether Council members who authorized the payment had a conflict of interest. Where the requested discovery is not relevant to the subject matter and the failure to produce it has not prejudiced the party seeking discovery, it is within the trial court's discretion not to compel discovery. Brunstetter v. Keating , 11th Dist. Trumbull No. 2002-T-0057, 2003-Ohio-3270, 2003 WL 21437016, ¶ 30.

{¶ 36} We further note that the petitioners have not previously raised claims regarding the alleged violation of Ohio public records law. Such claim has no bearing on the trial court's decision not to compel production.

{¶ 37} The third assignment of error is without merit.

{¶ 38} For the foregoing reasons, the judgment of the Lake County Court of Common Pleas in favor of respondents is affirmed. Costs to be taxed against the appellants (petitioners).

CYNTHIA WESTCOTT RICE, J.,

TIMOTHY P. CANNON, J.,

concur.

      Hamercheck's appeal was given Court of Appeals No. 2017-L-100 and Cahill's Court of Appeals No. 2017-L-101. The appeals were consolidated on the petitioners' joint motion.

      In a Supplemental Brief, filed on May 10, 2017 (prior to the entry of final judgment), the respondents argued that the case should be dismissed as moot since the initial payment under the Agreement sought to be enjoined had already been made. Also, according to the Agreement, the Fire District was to have surrendered the premises to the Village of Madison as of September 17, 2014. The trial court did not expressly rule on the issue of mootness and the argument has not been raised on appeal.


source: Caselaw Access Project

author: S. POWELL, P.J.

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee, v. Michael Ray LEWIS II, Defendant-Appellant.
    NOS. CA2017-12-179 CA2017-12-180 CA2017-12-181
    Court of Appeals of Ohio, Twelfth District, Butler County.
    April 16, 2018
    Michael T. Gmoser, Butler County Prosecutor, Michael Greer, Government Services Center, 315 High St., 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee
    Teresa Cunningham, Cunningham & Associates, 312 Walnut St., Suite 1600, Cincinnati, Ohio 45202, for defendant-appellant
   S. POWELL, P.J.

{¶ 1} Defendant-appellant, Michael Ray Lewis II, appeals from his conviction and aggregate 12-year prison sentence he received in the Butler County Court of Common Pleas after he pled guilty in separate cases to burglary, illegal conveyance of weapons or prohibited items onto the grounds of a specified government facility, and aggravated arson, the latter of which resulted in him violating his community control sanctions imposed in the former. For the reasons outlined below, we affirm.

{¶ 2} On December 22, 2015, the Butler County Grand Jury returned an indictment charging Lewis with burglary in violation of R.C. 2911.12(A)(1), a second-degree felony, and assault in violation of R.C. 2903.13(A), a first-degree misdemeanor. These charges were brought under Butler C.P. Case No. CR2015-11-1768. Lewis agreed to plead guilty to burglary in violation of R.C. 2911.12(A)(3), a third-degree felony, in exchange for the assault charge being dismissed. Accepting Lewis' plea, the trial court found Lewis guilty and sentenced him to five years of community control, the conditions of which required Lewis to obey all federal, state, and local laws and ordinances.

{¶ 3} On August 4, 2016, Lewis was charged by a bill of information with illegal conveyance of weapons or prohibited items onto the grounds of a specified government facility in violation of R.C. 2921.36(A)(2), a third-degree felony. This charge was brought under Butler C.P. Case No. CR2016-06-0787. Lewis agreed to plead guilty as charged in exchange for the state not pursuing any additional charges against him. Accepting Lewis' plea, the trial court found Lewis guilty and again sentenced him to five years of community control, the conditions of which also required Lewis to obey all federal, state, and local laws and ordinances.

{¶ 4} On June 14, 2017, the Butler County Grand Jury returned an indictment charging Lewis with aggravated arson in violation of R.C. 2909.02(A)(2), a second-degree felony. This charge was brought under Butler C.P. Case No. CR2017-05-0820. According to the record, this charge arose after Lewis admitted setting fire to bedding material and a mattress located in a bedroom of a Middletown, Butler County, Ohio home on the afternoon of April 17, 2017, the same home where his father was found dead from a drug overdose earlier that day. Lewis claims to have no recollection of the incident having blacked out after consuming a significant amount of alcohol upon learning of his father's death.

{¶ 5} On August 21, 2017, Lewis moved for leave to file a plea of not guilty by reason of insanity. In support of this motion, Lewis' trial counsel stated, in pertinent part, the following:

Upon further discussion with the defendant after receiving discovery, counsel has been advised that the defendant has been diagnosed and treated as a juvenile for multiple psychological issues, including an impulse control disorder and was suffering from severe depression on the date of this incident. As such, it appears to counsel that the appropriate course of action in this matter is to request that a professional investigate the state of mind of the defendant at the time of the incident to determine whether he may qualify for a Not Guilty by Reason of Insanity defense.

{¶ 6} Lewis' trial counsel also moved the trial court for an assessment of Lewis' state of mind at the time of the offense and further suggested to the trial court that Lewis may not be competent to stand trial since he "was diagnosed and treated as a juvenile for multiple psychological issues, including an impulse control disorder, and was suffering from severe depression on the date of the incident."

{¶ 7} On August 28, 2017, the trial court ordered Lewis to undergo a forensic evaluation to assess Lewis' state of mind at the time of the offense, as well as to determine if Lewis was competent to stand trial. In compliance with the trial court's order, a forensic evaluation of Lewis was conducted by an examiner with the Forensic Evaluation Service Center. According to its website, the Forensic Evaluation Service Center is "a group of forensic psychologists and psychiatrists and mental health professionals working for the courts and criminal justice related agencies in southwestern Ohio." The matter was then scheduled for a competency hearing on September 25, 2017, a hearing that was then rescheduled for October 9, 2017 to allow the examiner to "collect collateral material essential to completing evaluations."

{¶ 8} As no transcript of the competency hearing was made part of the record, the record lacks any evidence of what transpired at the October 9, 2017 competency hearing. What is in the record, however, is a plea form indicating Lewis entered into a plea agreement on October 10, 2017, the day after the competency hearing took place, wherein Lewis agreed to plead guilty to aggravated arson as charged. The plea form indicates the trial court accepted Lewis' guilty plea and scheduled the matter for sentencing. According to the plea form, which Lewis, his trial counsel, and the state all signed, Lewis was satisfied with his trial counsel's advice and competence.

{¶ 9} On October 12, 2017, the trial court ordered an examiner with the Forensic Evaluation Service Center to conduct another forensic evaluation of Lewis for purposes of mitigation at sentencing. The following week, on October 18, 2017, a notice was filed with the trial court alleging Lewis had violated the terms of his community control sanctions imposed by the trial court in Butler C.P. Case Nos. CR2015-11-1768 (burglary) and CR2016-06-0787 (illegal conveyance of weapons or prohibited items onto the grounds of a specified government facility) by pleading guilty to aggravated arson in Butler C.P. Case No. CR2017-05-0820.

{¶ 10} On November 14, 2017, the parties reconvened for purposes of sentencing Lewis on the aggravated arson charge in Butler C.P. Case No. CR2017-05-0820, as well as to hold a disposition hearing on his alleged violations of community control sanctions in Butler C.P. Case Nos. CR2015-11-1768 and CR2016-06-0787. The record does not contain a transcript of this hearing. It is undisputed, however, that the trial found Lewis guilty of violating his community control sanctions in both cases, which resulted in the trial court ordering Lewis to serve three years in prison in Butler C.P. Case No. CR2015-11-1768 with an additional, consecutive three years in prison for violating his community control sanctions in Butler C.P. Case No. CR2016-06-0787. The trial court also ordered Lewis to serve another, consecutive six years in prison for aggravated arson in Butler C.P. Case No. CR2017-05-0820, thereby resulting in a total aggregate term of 12 years in prison.

{¶ 11} Shortly after the trial court issued its sentencing decision, on November 17, 2017, new counsel for Lewis filed a notice of appearance with the trial court. That same day, Lewis' newly obtained trial counsel moved the trial court for an order to stop Lewis from being transferred from the Butler County Jail to the Ohio Department of Corrections' Correctional Reception Center ("ODRC's CRC") in Orient, Ohio. In support of this motion, Lewis' newly obtained trial counsel claimed she was "in the process of preparing a motion to withdraw [Lewis'] guilty plea," which required her to schedule Lewis for an "independent competency evaluation." Continuing, Lewis' newly obtained trial counsel stated:

As part of that evaluation, [Lewis] must meet in person with a psychiatrist who is performing the evaluation. The psychiatrist is located in Cincinnati, Ohio and can easily travel to Butler County for the interview. Once [Lewis] is released to the Department of Corrections, he will likely be sent to the Orient facility located outside of Columbus, Ohio.

{¶ 12} On November 20, 2017, the trial court issued separate entries in all three cases, i.e., Butler C.P. Case Nos. CR2015-11-1768, CR2016-06-0787, and CR2017-05-0820, wherein the trial court reiterated its decision to sentence Lewis to serve a total aggregate term of 12 years in prison. As it relates to its decision to order these three sentences to be served consecutively, the trial court explicitly stated in each of the three entries at issue:

The Court finds that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public. The court also finds that:
• Consecutive Sentences are necessary to protect the public from future crime.
• The defendant's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the defendant.

The record, however, is devoid of any order or entry by the trial court as to Lewis' motion requesting he not be transported from the Butler County Jail to the ODRC's CRC in Orient, Ohio. The record is also devoid of a motion requesting leave for Lewis to withdraw his guilty plea.

{¶ 13} Lewis now appeals from his conviction and aggregate 12-year prison sentence, raising two assignments of error for review.

{¶ 14} Assignment of Error No. 1:

{¶ 15} THE TRIAL COURT ERRED BY NOT RULING ON THE MOTION NOT TO TRANSFER APPELLANT WHICH AFFECTED HIS SUBSTANTIAL RIGHTS AND MAY HAVE AFFECTED THE OUTCOME.

{¶ 16} In his first assignment of error, Lewis claims the trial court erred by not explicitly ruling on his motion to not transfer. In support, Lewis claims the trial court's failure to rule on his motion affected his substantial rights-none of which are specifically named-and may have affected the outcome of the case. It is well-established, however, that when a trial court does not specifically rule on a motion, such as Lewis' motion not to transfer, we presume the motion was not well taken, and therefore, overruled. State v. Dickess , 174 Ohio App.3d 658, 2008-Ohio-39, 884 N.E.2d 92, ¶ 18 (4th Dist.).

{¶ 17} Nevertheless, even if we were not guided by such a presumption, nothing in the record indicates the trial court would have erred had it specifically rendered such a decision. As a simple review of the record reveals, Lewis premised his motion to not transfer on the close proximity of his psychiatrist to the Butler County Jail. However, as aptly noted by the state, and with which we certainly agree, "[t]he convenience of [Lewis'] psychiatrist does not constitute a cogent factual or cogent legal justification for his motion." This is particularly true here when considering the record is absent any evidence that Lewis' psychiatrist could not travel the additional distance to ODRC's CRC in Orient, Ohio, nor any evidence indicating a different psychiatrist located more closely to the ODRC's CRC would not suffice. In so holding, we note that Lewis never actually moved the trial court for leave to withdraw his guilty plea, even though his newly obtained trial counsel indicated she was in the process of preparing such a motion. Lewis' first argument is therefore without merit.

{¶ 18} Next, although not contained as part of his assignment of error, Lewis makes a vague allegation that his original trial counsel "may have been ineffective for failure to make a motion for an independent evaluation, particularly due to [Lewis] and his family's mental health history." However, ignoring the fact that Lewis' claim refers to matters clearly outside the record, as Lewis readily admits, a defendant in a criminal case has no absolute right to an independent evaluation to determine his or her competency. State v. Hill , 177 Ohio App.3d 171, 2008-Ohio-3509, 894 N.E.2d 108, ¶ 106 (11th Dist.).

{¶ 19} Regardless, even if Lewis did have such a right, which he does not, it was Lewis who moved the trial court to order an assessment of his state of mind at the time of the alleged offense, as well as Lewis who suggested to the trial court that he may not be competent to stand trial. Lewis' trial counsel cannot be deemed to have rendered ineffective assistance of counsel under these circumstances. Lewis' second argument is therefore also without merit. According, having found no merit to either of the two arguments raised herein, Lewis' first assignment of error is overruled.

{¶ 20} Assignment of Error No. 2:

{¶ 21} THE TRIAL COURT ERRED BY IMPOSING CONSECUTIVE SENTENCES.

{¶ 22} In his second assignment of error, Lewis claims the trial court erred by imposing consecutive sentences in this case, a decision that resulted in him being sentenced to serve a total aggregate term of 12 years in prison. In support, Lewis claims the trial court's decision to impose consecutive sentences was disproportionate to the seriousness of his conduct, "particularly considering [Lewis'] family mental health history and his reaction to his father's death and seeing the body in a contorted position." However, again ignoring the fact that Lewis' claim refers to matters clearly outside the record, Lewis failed to provide this court with a transcript of the necessary trial court proceedings to review the merits of his claim.

{¶ 23} As this court has stated previously, "[w]here portions of the transcript necessary for resolution of assigned errors are omitted from the record, the reviewing court has nothing to pass upon and thus has no choice but to presume the regularity or validity of the lower court's proceedings and affirm." State v. Newman , 12th Dist. Fayette No. CA2012-08-024, 2013-Ohio-2053, 2013 WL 2152527, ¶ 16. Therefore, having no choice but to presume the regularity and validity of the trial court's proceedings, because the record properly before this court fully supports the trial court's consecutive sentence findings, see State v. Clark , 2d Dist. Montgomery No. 27365, 2017-Ohio-7633, 2017 WL 4082799, ¶ 34-36, Lewis' argument that the trial court erred by imposing consecutive sentences in this case is without merit and overruled.

{¶ 24} Judgment affirmed.

HENDRICKSON and PIPER, JJ., concur.

      Pursuant to Loc.R. 6(A), we hereby sua sponte remove this case from the accelerated calendar for purposes of issuing this opinion.


author: CYNTHIA WESTCOTT RICE, J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Jamie FIGUEROA, Defendant-Appellant.
    NO. 2016-A-0034
    Court of Appeals of Ohio, Eleventh District, Ashtabula County.
    Decided April 16, 2018
    Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-Appellee).
    Andrew R. Zellers, 3810 Starrs Centre Drive, Canfield, OH 44406 (For Defendant-Appellant).
   CYNTHIA WESTCOTT RICE, J.

{¶ 1} Appellant, Jamie Figueroa, appeals from the judgment of the Ashtabula County Court of Common Pleas, entered on a jury verdict, sentencing him to a total term of eight years imprisonment following his convictions on three counts of felonious assault, and one of petty theft. Appellant contends he was prejudiced by the trial court's failure to give certain cautionary instructions. He also contends two of his felonious assault convictions are premised on insufficient evidence. We affirm.

{¶ 2} On May 16, 2015, appellant entered the Speedway gas station located on State Route 20 in Ashtabula Township, and stole two six packs of beer and some snacks. An employee saw this on the security camera, and told the shift leader, Diana Higley. Ms. Higley went outside, and found appellant seated at the side of the store, drinking a beer. She told him to leave. He got up, pulled a steak knife out of his pocket, and pointed it at her, screaming abuse. Another employee, Melynn McCoy, had stopped by the Speedway to get ice for a party. Ms. Higley asked her to tell the clerk in the store to call the police. Ms. McCoy did so, then returned outside. Danyet Pinney, a third employee, drove into the parking lot shortly after the dispute between Ms. Higley and appellant commenced. A regular patron, Darrell Thompson, had stopped by the store to buy a cigar. He, too, observed the dispute.

{¶ 3} Appellant was standing about ten feet away from Ms. Higley. Suddenly, he turned the knife around so the blade was pointing out the back of his hand, turned, and leapt at Ms. Higley, striking her in the mouth with his fist. She fell down, covered with blood. Mr. Thompson went to her aid. Appellant took a few steps towards Mr. Thompson, and asked him if he wanted some, too. Appellant had the knife at his side. Mr. Thompson ran around the side of his car for protection. Appellant then fled down a side street.

{¶ 4} Deputy Sheriff Ted Barger, Jr., responded to the Speedway. He found Appellant in a parking lot approximately 300 yards from the gas station, drinking a beer. The deputy put him under arrest, and returned with him to the gas station, where the victims and witnesses identified him. Mr. Thompson found the knife in a ditch nearby.

{¶ 5} Ms. Higley required 12 stitches to her mouth. One of her teeth was knocked loose and suffered root damage.

{¶ 6} The Ashtabula County Grand Jury subsequently returned an indictment on four counts against appellant: count one, felonious assault against Ms. Higley with the knife, a second degree felony, in violation of R.C. 2903.11(A)(2) ; count two, felonious assault against Ms. Higley with his fist, a second degree felony, in violation of R.C. 2903.11(A)(1) ; count three, felonious assault against Mr. Thompson with the knife, a second degree felony, in violation of R.C. 2903.11(A)(2) ; and count four, petty theft, a first degree misdemeanor, in violation of R.C. 2913.02(A)(1). He pleaded not guilty to all counts. After appellant was deemed competent to stand trial, a jury trial commenced and concluded the following day. The jury quickly returned verdicts of guilty on all charges.

{¶ 7} The trial court proceeded to sentencing. It merged the felonious assault convictions regarding Ms. Higley, and imposed six years imprisonment. It sentenced him to two years on the felonious assault conviction regarding Mr. Thompson, the term to be served consecutively to that regarding Ms. Higley. It imposed six months for the petty theft, to be served concurrently to the felonious assault terms, for a total of eight years imprisonment, and informed appellant he was subject to three years post-release control.

{¶ 8} Appellant now appeals and assigns three errors. The first provides:

{¶ 9} "The trial court committed an error when it allowed inadmissible hearsay to be introduced into the record despite an objection from defense counsel and as a result was prejudicial to the appellant, thus affecting the outcome of the case."

{¶ 10} Appellant contends the trial court twice erred in failing to give a curative instruction. First, he objects to the following exchange:

{¶ 11} Assistant Prosecutor: "And beyond speaking with the witnesses and retrieving written statements from them, did you make-do anything else in your investigation to determine what had happened?"

{¶ 12} Deputy Barger. Yes, Darrell Thompson made a comment that he found the knife that was, in fact used."

{¶ 13} Defense Counsel: "Objection, Your Honor."

{¶ 14} Trial Court: "I'm going to sustain that."

{¶ 15} Appellant also objects to the following exchange between the assistant prosecutor and Deputy Barger:

{¶ 16} Assistant Prosecutor: "Based on your investigation, did you come to any conclusions?"

{¶ 17} Deputy Barger: "Yes."

{¶ 18} Assistant Prosecutor: "What did you conclude?"

{¶ 19} Deputy Barger: "That the Defendant assaulted the victim. And, unfortunately, there was no cameras on the west side of the building where you'd be able to see a lot more. But if you noticed in the video, when Mr. Thompson again in the blue T-shirt, he was running around the vehicles, that is when the Defendant obviously still had the knife in his hand, and he made the statement to him such as * * *"

{¶ 20} Defense Counsel: "Objection."

{¶ 21} Deputy Barger: "Do you want * * *"

{¶ 22} Trial Court: "Okay, you can't * * *"

{¶ 23} Deputy Barger: "Okay."

{¶ 24} Trial Court: "I'll sustain that."

{¶ 25} Defense counsel: "Thank you, Your Honor."

{¶ 26} A trial court's decision on whether to provide cautionary instructions is reviewed for abuse of discretion. State v. Frost , 14 Ohio App.3d 320, 322, 471 N.E.2d 171 (11th Dist. 1984). The phrase "abuse of discretion" is one of art, connoting judgment exercised by a court which neither comports with reason, nor the record. State v. Ferranto , 112 Ohio St. 667, 676-678, 148 N.E. 362 (1925). An abuse of discretion may be found when the trial court "applies the wrong legal standard, misapplies the correct legal standard, or relies on clearly erroneous findings of fact." Thomas v. Cleveland , 176 Ohio App.3d 401, 2008-Ohio-1720, ¶ 15, 892 N.E.2d 454 (8th Dist.) We discern no abuse of discretion on this issue.

{¶ 27} First, as the state notes, the trial court did, in fact, give the following instruction to the jury before the commencement of testimony: "If a question is asked and an objection to the question is sustained, you will not hear the answer. You must not speculate as to what the answer might have been or as to the reason for the objection." Perhaps it would have been best if the trial court had reiterated this at the time of the two objections in question, but it was not required to do so, as we must presume a jury follows the instructions given it by the trial court.

State v. Tackett , 11th Dist. Lake No. 2012-L-130, 2013-Ohio-4098, 2013 WL 5346467, ¶ 18. Further, it is difficult to see how appellant suffered prejudice because Mr. Thompson testified he discovered the knife, and additionally stated appellant asked him if he "wanted any."

{¶ 28} The first assignment of error lacks merit.

{¶ 29} Appellant's second assignment of error asserts:

{¶ 30} "The trial court erred when it failed to sustain the appellant's Crim.R. 29 motion and affirm the conviction by the jury as the evidence presented at trial was insufficient to support a determination that the appellant was guilty of felonious assault with respect to alleged victim number two, Darrell Thompson."

{¶ 31} Appellant argues that the state did not prove by sufficient evidence he intended to harm Mr. Thompson.

{¶ 32} A Crim.R. 29 motion challenges the sufficiency of the evidence introduced by the state to support a conviction. State v. Stefl , 11th Dist. Lake No. 2009-L-088, 2010-Ohio-591, 2010 WL 597112, ¶ 18. A "sufficiency" argument raises a question of law as to whether the prosecution offered some evidence concerning each element of the charged offense. State v. Windle, 11th Dist. Lake No.2010-L-0033, 2011-Ohio-4171, 2011 WL 3655243, ¶ 25. "[T]he proper inquiry is, after viewing the evidence most favorably to the prosecution, whether the jury could have found the essential elements of the crime proven beyond a reasonable doubt." State v. Troisi, 179 Ohio App.3d 326, 2008-Ohio-6062 ¶ 9, 901 N.E.2d 856 (11th Dist.)

{¶ 33} Appellant was convicted of felonious assault against Mr. Thompson pursuant to R.C. 2903.11(A)(2), which provides, in pertinent part:

{¶ 34} "(A) No person shall knowingly do either of the following:

{¶ 35} "* * *

{¶ 36} "(2) Cause or attempt to cause physical harm to another * * * by means of a deadly weapon or dangerous ordnance."

{¶ 37} A finder of fact may infer a defendant's intent to cause physical harm from his or her actions and the surrounding circumstances. See e.g. State v. Seiber , 56 Ohio St.3d 4, 15, 564 N.E.2d 408 (1990). "A 'criminal attempt' [occurs] when one purposely does or omits to do anything which is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime. To constitute a substantial step, the conduct must be strongly corroborative of the actor's criminal purpose. ( R.C. 2923.02(A) construed.)" State v. Woods , 48 Ohio St.2d 127, 357 N.E.2d 1059 (1976), paragraph one of the syllabus (vacated on other grounds). To constitute a substantial step, the offender's conduct need not be the last proximate act prior to the commission of the offense, but it "must be strongly corroborative of the actor's criminal purpose." Id. A defendant who steps toward a victim while holding a knife ready for use may be reasonably viewed as taking a substantial step toward the execution of an assault. State v. Workman , 84 Ohio App.3d 534, 537, 617 N.E.2d 723 (9th Dist. 1992). Additional evidence, such as verbal threats and violent behavior, may be considered in the determination of whether sufficient evidence supports a conviction for felonious assault. See e.g. State v. Brown , 97 Ohio App.3d 293, 299, 646 N.E.2d 838 (8th Dist. 1994).

{¶ 38} In support of his claim that the conviction was not supported by sufficient evidence, appellant cites State v. Smith , 9th Dist. Lorain No. 98CA007168, 2000 WL 110411 (Jan. 26, 2000). In that case, the alleged victim observed the defendant arguing with a third party. When the alleged victim tried to intervene, he noticed that the defendant was holding a knife with the blade open. The defendant then waved the knife and advised the alleged victim, "I'm going to cut you. I'm going to get you." The defendant began walking toward the alleged victim, still waving the knife and shouting vulgarities. The alleged victim advised the defendant that the police were present, and the defendant stopped approaching. At that point, the defendant fled on foot, throwing the knife in grass. The Ninth District held the defendant's actions were merely preparatory and insufficient to convey an intention to carry out his expressed threat of harm. Id. at *3. The court underscored the defendant never lunged at the alleged victim, he was not holding the knife in a manner that would permit him to carry out his stated intentions, and did not take any additional action beyond a continuation of his verbal tirade. Id.

{¶ 39} The facts and circumstances of the instant case demonstrate appellant took a substantial step in the commission of felonious assault. Mr. Thompson observed appellant charge Ms. Higley and punch her in the face. Appellant was holding a knife approximately six to eight inches in length. He held the knife forward and it remained in his hand as he struck Ms. Higley. As Mr. Thompson approached to help Ms. Higley, appellant stepped toward him and asked if he "wanted some too." Mr. Thompson then fled behind his car.

{¶ 40} Under the circumstances, appellant, who had just assaulted a third party and was brandishing a relatively large knife, threatened Mr. Thompson while moving toward him. Given the entirety of the circumstances, a reasonable juror could conclude appellant had taken a substantial step in knowingly attempting to cause physical harm to Mr. Thompson with a deadly weapon.

{¶ 41} The second assignment of error is without merit.

{¶ 42} The third assignment of error states:

{¶ 43} "The trial court erred when it failed to sustain the appellant's Crim.R. 29 motion and affirm the conviction of the jury as the evidence presented at trial was insufficient to support a determination that the appellant was guilty of felonious assault with respect to alleged victim number one, Diana Higley."

{¶ 44} Appellant challenges his conviction under R.C. 2903.11(A)(2) for assaulting Ms. Higley with his knife. Appellant notes he had turned the knife's blade backward when he punched Ms. Higley. Consequently, he asserts, again, that there is no overt act directed toward physically harming her with the knife. We do not agree.

{¶ 45} Appellant struck Ms. Higley in the face with a fist holding a knife. Having the knife in the hand with which he committed this first assault did more than cause Ms. Higley to believe that physical harm was imminent: it was an overt act, in and of itself, directed to causing her further physical harm.

{¶ 46} The third assignment of error lacks merit.

{¶ 47} The judgment of the Ashtabula County Court of Common Pleas is affirmed.

THOMAS R. WRIGHT, P.J., concurs,

COLLEEN MARY O'TOOLE, J., concurs in part and dissents in part, with a Concurring/Dissenting Opinion.

{¶ 48} I concur with the majority's well-reasoned disposition of appellant's first and second assignments of error. However, I find merit in his second assignment of error, and would reverse his felonious assault conviction regarding Mr. Thompson. Instead, I would apply the reasoning of the Ninth District in Smith , supra . The court observed:

{¶ 49} "In order to establish a knowing attempt to cause physical harm, the state was required to demonstrate that Smith had the criminal intent to harm George, and that his conduct represented a substantial step in carrying out that intent. See State v. Brooks (1989), 44 Ohio St.3d 185, 190-191, 542 N.E.2d 636, * * *, quoting State v. Farmer (1951), 156 Ohio St. 214, 216, 102 N.E.2d 11, * * *. Although Smith's actions 'need not be the last proximate act prior to the consummation of the felony(,)' id. at 190, 542 N.E.2d 636, 'there must (have been) some overt act directed toward physical harm which (was) beyond behavior that merely causes another to believe physical harm is imminent.' State v. Clark (June 27, 1991), Cuyahoga App. No. 58270, 1991 WL 127271, unreported.

{¶ 50} "* * *

{¶ 51} "Pointing a knife at an individual is different from pointing a gun, even though both are deadly weapons. Pointing a knife at someone is generally only one of several steps preparatory to using it to injure another, rather than the penultimate one. That act alone, or even when accompanied by verbal threats, is equivocal as to whether the assailant was trying to harm the victim, or merely intending to frighten him, one of the primary distinctions between felonious assault, R.C. 2903.11(A)(2), and aggravated menacing, R.C. 2903.21(A). See Brooks , 44 Ohio St.3d at 192, 542 N.E.2d 636, * * *." (Parallel citations omitted.) Smith , 2000 WL 11041, at *2-3.

{¶ 52} I find this argument persuasive. At the time appellant threatened Mr. Thompson, the two were about five feet apart according to the latter's testimony, and appellant had the knife pointed down, at his side. There was no overt act by appellant directed toward causing Mr. Thompson physical harm-merely action that might cause him to believe such harm was imminent. This is insufficient evidence to support a conviction for felonious assault under RC. 2903.11(A)(2). Smith at *2-3.

{¶ 53} I respectfully concur and dissent.


author: HENDRICKSON, J.

text:
    STATE of Ohio/CITY OF HAMILTON, Plaintiff-Appellee, v. MARFEL MOTORS, INC., Defendant-Appellant.
    NO. CA2017-06-089
    Court of Appeals of Ohio, Twelfth District, Butler County.
    April 16, 2018
    Thomas A. Dierling, Hamilton City Prosecutor, 345 High Street, 2nd Floor, Hamilton, Ohio 45011, for plaintiff-appellee
    Holcomb & Hyde LLC, Richard A. Hyde, 332 High Street, Hamilton, Ohio 45011, for defendant-appellant
   HENDRICKSON, J.

{¶ 1} Defendant-appellant, Marfel Motors, Inc., appeals from its conviction in the Hamilton Municipal Court for violating a zoning ordinance by operating a business without being issued a certificate of zoning compliance for the business' property. For the reasons set forth below, we affirm appellant's conviction.

{¶ 2} On January 9, 2017, a complaint was filed in the Hamilton Municipal Court charging appellant with a zoning violation for operating a business without being issued a certificate of zoning compliance, as required by Section 1150.40 of the Codified Ordinances of the city of Hamilton. The affidavit attached to the complaint stated that on October 20, 2016, Larry Bagford, a planning and zoning specialist for the city of Hamilton, observed appellant operating an auto sales business at 2050 South Erie Boulevard in Hamilton, Ohio. The affidavit further stated appellant continued to operate its business despite being ordered to cease all operations and remove all vehicles for sale from the property as the city's community development office had no record of a conditional use approval or the required certificate of zoning compliance being issued.

{¶ 3} Appellant entered a not guilty plea to the charge and a bench trial was held on May 25, 2017. The city called Bagford as its sole witness. Bagford testified that he has worked for the city of Hamilton for 20 years. In July 2016, he received a complaint about appellant's business, which was located at 2050 South Erie Boulevard in the city of Hamilton. Bagford went to the property to investigate the complaint and found a sign advertising "Marfel Motors, Incorporated" and several vehicles for sale. Bagford issued a notice of violation to the business, as it had not been issued a certificate of zoning compliance. Although appellant was ordered to cease its operations and remove all vehicles from the property, it failed to do so. It also failed to take steps to remedy its violation, as it failed to contact the community development office to seek conditional use approval for the operation of the auto sales business at the property. Bagford therefore filed a complaint charging appellant with violating Hamilton Codified Ordinances Section 1150.40, an ordinance that has been in effect since 1971.

{¶ 4} Bagford testified he took a number of steps in determining that appellant had not been issued a certificate of zoning compliance. He first checked the city of Hamilton's electronic "govern system," which keeps computerized records of permits and certificates issued whenever there is a change of use or change to a building. Bagford explained that such records can be searched by the property's address, the owner's name, or by a permit number. When he searched by the property's address, he found "nothing" for an auto business or auto repair business.

{¶ 5} Bagford then checked the city's paper files, which are kept in the construction services department. Bagford pulled the file for "2050 South Erie Boulevard," which contained information pertaining to a strip mall located between 2020 and 2050 South Erie Boulevard. The file did not, however, contain any paperwork pertaining to a certificate of zoning compliance for use of a car lot at the property's address. Finally, Bagford testified he checked the board of zoning appeals' minutes for the last several years to see if a certificate of zoning compliance had been issued. However, after "going back several years," he found "nothing in there for an auto repair or auto sales" business.

{¶ 6} On cross-examination, Bagford was questioned about other businesses that had operated at 2050 South Erie Boulevard over the years. When asked whether he was aware that an auto sales business, Big Valley Parts and Auto Sales ("Big Valley"), had operated at the property "twenty years ago," Bagford stated he was not familiar with that business or its operation. He further stated that he looked at everything in the computerized records and paper file regarding 2050 South Erie Boulevard, and there was no approval for conditional use of the property for an auto business or auto repair business.

{¶ 7} Defense counsel presented Bagford with copies of vendor's licenses issued by the state of Ohio to appellant in 2011 and 2013, as well as motor vehicle dealer licenses issued by the state of Ohio to appellant in 2012 and 2014. The address associated with these licenses was "2050 South Erie Boulevard." Bagford explained that the state's decision to issue these licenses has no effect on whether a certificate of zoning compliance has been issued by the city. Bagford testified that the city "[has] been trying for several years [to get] the state not to issue those licenses until they see a certificate of * * * use approval."

{¶ 8} Following Bagford's testimony, the trial court accepted into evidence photographs of appellant's business that were taken on October 20, 2016, which depicted appellant's business sign and various automobiles offered for sale. Thereafter, the city rested and appellant moved for acquittal pursuant to Crim.R. 29(A). After the trial court denied appellant's motion, appellant called Jerry Collins in its defense.

{¶ 9} Collins testified he owns the property at 2050 South Erie Boulevard. The property was built in 1955, and he became the owner in 1992. Collins rents the property to appellant, who began using the property for its auto sales business in 2011. Collins testified that prior to appellant's use of the property, the property had been used as a junk yard, a mechanic shop, an auto parts store, and an auto sales business. Collins specifically recalled Big Valley using the property to sell automobiles before he became the owner of the property in 1992.

{¶ 10} Collins explained that appellant had to get the city to turn the property's utilities on in 2011 so that appellant could operate its business. The city sent an inspector to "look over the electric, the plumbing, the heating and air, [and] everything." Collins believed a certificate of zoning compliance was issued to appellant around the time when the utilities had been turned on, but on cross-examination admitted that he had not actually seen the certificate and had "no knowledge" of whether the certificate ever existed.

{¶ 11} Collins testified that after appellant received notice that it was operating in violation of the city's zoning ordinances, he spoke with John Creech, an employee at the city's planning department. Collins observed Creech pull the paper file for 2050 South Erie Boulevard, but Creech was unable to locate an application for the auto sales business to operate on the property. Collins asked Creech whether the file had an application for the HVAC business Collins opened in 1992, but Creech was unable to locate that paperwork in the file. When Collins asked Creech if it was possible the city lost the paperwork, Creech "didn't have an answer to that." Collins believed the city "could have lost" appellant's certificate of zoning compliance.

{¶ 12} Following Collins' testimony, the defense rested. After denying appellant's renewed motion for acquittal, the court found appellant guilty of violating Hamilton Codified Ordinances Section 1150.40. The court imposed a $400 fine and court costs.

{¶ 13} Appellant timely appealed its conviction, raising the following as its sole assignment of error:

{¶ 14} A FINDING OF GUILTY ON A CHARGE OF CERTIFICATES OF ZONING COMPLIANCE (HAMILTON MUNICIPAL ORDINANCE SECTION 1150.40) IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND THE EVIDENCE IS INSUFFICIENT WHEN THE APPELLEE'S WITNESSES AT TRIAL CANNOT TESTIFY WITH CERTAINTY THAT AN APPLICATION FOR A CONDITIONAL USE PERMIT OR A CONDITIONAL USE PERMIT HAD [NOT] BEEN ISSUED FOR THE LOCATION IN QUESTION.

{¶ 15} In its sole assignment of error, appellant argues its conviction is not supported by sufficient evidence and is against the manifest weight of the evidence.

{¶ 16} Whether the evidence presented at trial is legally sufficient to sustain a verdict is a question of law. State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997) ; State v. Grinstead , 194 Ohio App.3d 755, 2011-Ohio-3018, 958 N.E.2d 177, ¶ 10 (12th Dist.). When reviewing the sufficiency of the evidence underlying a criminal conviction, an appellate court examines the evidence in order to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Paul , 12th Dist. Fayette No. CA2011-10-026, 2012-Ohio-3205, 2012 WL 2877754, ¶ 9. Therefore, "[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

{¶ 17} On the other hand, a manifest weight of the evidence challenge examines the "inclination of the greater amount of credible evidence, offered at a trial, to support one side of the issue rather than the other." State v. Barnett , 12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, 2012 WL 1940800, ¶ 14. To determine whether a conviction is against the manifest weight of the evidence, the reviewing court must look at the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether in resolving the 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. Graham , 12th Dist. Warren No. CA2008-07-095, 2009-Ohio-2814, 2009 WL 1659049, ¶ 66. An appellate court will overturn a conviction due to the manifest weight of the evidence "only in the exceptional case in which the evidence weighs heavily against the conviction." Id. , citing State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).

{¶ 18} Further, although the legal concepts of sufficiency of the evidence and weight of the evidence are quantitatively and qualitatively different, "[a] determination that a conviction is supported by the manifest weight of the evidence will also be dispositive of the issue of sufficiency." State v. Jones , 12th Dist. Butler No. CA2012-03-049, 2013-Ohio-150, 2013 WL 226898, ¶ 19.

{¶ 19} Appellant was found guilty of violating Section 1150.40 of the Codified Ordinances of the city of Hamilton, which provides, in relevant part, as follows:

Certificates of Zoning Compliance: It shall be unlawful to use or occupy or permit the use or occupancy of any building or premises, or both, or part thereof hereafter created, erected, changed, converted or wholly or partly altered or enlarged in its use or structure until a Certificate of Zoning Compliance shall have been issued therefore by the City Manager or Designee stating that the proposed use of the building or land conforms to the requirements of this Ordinance. The [sic] may be issued in conjunction with a building permit.
No non-conforming structure or use shall be maintained, renewed, changed or extended until a Certificate of Zoning Compliance shall have been issued by the City Manager or Designee. * * *
* * *
City Manager or Designee shall maintain a record of all Certificates of Zoning Compliance, and copies shall be furnished upon request to any person for a fee.
Failure to obtain a Certificate of Zoning Compliance shall be a violation of this Ordinance and punishable under Section 1186.00, violation and penalty, of this Ordinance.

Pursuant to Hamilton Codified Ordinances Section 1186.00, "[a]ny person, firm, or corporation who violates, disobeys, omits, neglects, or refuses to comply with, or who resists the enforcement of any of the provisions of the Zoning Ordinance[s] * * * and all amendments thereto, shall be guilty of an unclassified misdemeanor and shall be fined not less than $250.00 or more than five hundred ($500.00) dollars for each offense."

{¶ 20} Appellant contends the state impermissibly shifted the burden of proof at trial to appellant to demonstrate that it had, in fact, been issued a certificate of zoning compliance. Appellant also asserts that the city "tacitly admitted" it lost the certificate of zoning compliance and other paperwork relating to appellant's use of the property as an auto sales business when Creech, an employee in the city's planning department, failed to answer Collins' inquiry about whether it was possible the city lost the paperwork.

{¶ 21} We find no merit to appellant's arguments. The burden of proof remained on the state to demonstrate beyond a reasonable doubt that appellant was in violation of Hamilton Codified Ordinances Section 1150.40 for not having been issued a certificate of zoning compliance. After reviewing the record, weighing inferences and examining the credibility of the witnesses, we find that appellant's conviction is supported by sufficient evidence and is not against the weight of the evidence. The city presented testimony and evidence from which the trier of fact could have found all the essential elements of the offense proven beyond a reasonable doubt. Bagford's testimony demonstrated appellant occupied and used the property at 2050 South Erie Boulevard without being issued a certificate of zoning compliance by the city. Bagford testified that despite appellant being notified in October 2016 that it was operating in violation of the city's zoning ordinances, it refused to cease its operations and continued to use the property for its auto sales business. Bagford examined the records the city maintains to see if a certificate of zoning compliance for the property had been issued, but neither the electronic records nor paper files associated with the property contained a certificate of zoning compliance pertaining to the operation of a car lot or auto sales business. Bagford also examined the board of zoning appeals' minutes for the past several years, but found no reference to a certificate of zoning compliance being issued to an auto sales business at 2050 South Erie Boulevard.

{¶ 22} As for appellant's claim that the city "tacitly admitted" to losing the certificate of zoning compliance, we find that the record does not support this argument.

Bagford specifically testified that there was no record of the certificate ever being issued. Moreover, Collins' testimony at trial was not that the city admitted the certificate had been issued but then subsequently lost; rather, Collins testified the city's employee "didn't have an answer" to the question of whether paperwork from the file may have been lost.

{¶ 23} Appellant sought to demonstrate it had not violated the city's ordinance requiring the issuance of a certificate of zoning compliance by presenting evidence that (1) the state had issued vendor's licenses and motor vehicle dealer licenses to it, (2) the city turned on utilities to the property after inspecting the property in 2011, (3) it had been operating an auto sales business at the property since 2011, and (4) other auto businesses had operated at the property in the past. However, this evidence does not establish that a certificate of zoning compliance had been issued by the city. As the trial court stated when rendering its guilty finding,

Mr. Collins testified and I've listened to what he has said. I don't think he was making anything up, but what he said didn't address the question. Um-these documents that [appellant] presented or whether there's been a business there that the State of Ohio has recognized doesn't address the question. The question that the city presented here with this case was, was there a certificate of zoning compliance issued and I'm convinced beyond a reasonable doubt by them, that there wasn't.

{¶ 24} Given the evidence presented at trial, we find that the trial court did not lose its way and create such a manifest miscarriage of justice that appellant's conviction for violating Hamilton Codified Ordinances Section 1150.40 must be reversed. Appellant's conviction is not against the manifest weight of the evidence merely because the trier of fact believed the testimony of the city's witness. See State v. Burrell , 12th Dist. Fayette No. CA2016-04-005, 2016-Ohio-8454, 2016 WL 7626283, ¶ 22. As appellant's conviction was not against the manifest weight of the evidence, we necessarily conclude that the state presented sufficient evidence to support the trial court's finding of guilt. See Jones , 2013-Ohio-150 at ¶ 19.

{¶ 25} Appellant's sole assignment of error is, therefore, overruled.

{¶ 26} Judgment affirmed.

S. POWELL, P.J., and RINGLAND, J., concur.