author: WELBAUM, P.J.

text:
    Amanda SOWERS, Plaintiff-Appellee v. Matthew SOWERS, Defendant-Appellant
    No. 2017-CA-19
    Court of Appeals of Ohio, Second District, Miami County.
    Rendered on March 23, 2018
    CRAIG M. SAMS, Atty. Reg. No. 0089716, 10532 Success Lane, Dayton, Ohio 45458, Attorney for Plaintiff-Appellee
    SCOTT D. RUDNICK, Atty. Reg. No. 0000853, 121 West Third Street, Greenville, Ohio 45331, Attorney for Defendant-Appellant
   WELBAUM, P.J.

{¶ 1} In this case, Defendant-Appellant, Matthew Sowers ("Matthew") appeals from a judgment denying his motion for an increase in child support to be paid by Plaintiff-Appellee, Amanda Sowers ("Amanda"). According to Matthew, the trial court erred in concluding that Amanda's child support obligation was not 10% greater than the obligation calculated at the time of the final decree.

{¶ 2} Matthew further contends that the trial court erred in finding that he failed to establish that Amanda was fully employed and was earning more than the current minimum wage in Ohio. And finally, Matthew contends that the trial court abused its discretion when it refused to make a child support award.

{¶ 3} We conclude that the trial court erred in requiring Matthew to establish a 10% deviation in the child support obligation and to also establish a substantial change of circumstances that was not contemplated at the time of the divorce decree, before the court would allow modification of child support. We further conclude that the trial court erred in finding that Amanda was not earning more than the current minimum wage in Ohio. In addition, the trial court erred by deviating from the calculated child support obligation without following the statutory requirements in R.C. 3119.22 and R.C. 3119.23.

{¶ 4} The court did not err in its conclusion about the amount of Matthew's gross income that was due to his wages from employment. However, the court did err in including mileage reimbursements in Matthew's gross income without considering whether the reimbursement caused Matthew, effectively, to have a higher income. Accordingly, the judgment of the trial court will be affirmed solely with respect to the calculation of Matthew's gross income from wages, will be reversed on all other grounds, and will be remanded for further proceedings.

I. Facts and Course of Proceedings

{¶ 5} In May 2015, Amanda filed a divorce complaint against Matthew. The complaint indicated that the parties had two children, R.S. and E.S., who were then, respectively, 10 and nine years old. Amanda was given temporary custody of the children, and Matthew was ordered to pay child support. However, in September 2015, the court granted Matthew emergency temporary custody based on a motion filed by a guardian ad litem that the court had appointed.

{¶ 6} A final divorce decree was filed on January 12, 2016, and was based on the parties' agreement. The decree designated Matthew as the residential parent and legal custodian of the children. Amanda was given reasonable visitation time, and was ordered to coordinate visitation with the administrator at the Family Health Center. Amanda was unemployed at the time of the divorce, and zero child support was ordered, per the parties' agreement. In addition, the decree granted the federal tax exemptions for the children to Matthew; however, the decree stated that Amanda would be entitled to claim E.S. as a dependent if her household income rose to a level allowing her to take advantage of a child dependence exemption.

{¶ 7} A document entitled "Form DR16" was also filed on January 12, 2016, and was incorporated into the divorce decree. The decree provided that if any conflict existed between the decree and the DR16, the DR16 would control.

{¶ 8} The DR16, itself, ordered Amanda to seek work. The court also attached a child support computation worksheet to the divorce decree, and for purposes of the worksheet, imputed $16,375 in income to Amanda. According to the worksheet, Amanda's annual child support obligation would have been $3,630.87, or $302.50 per month. However, as was noted, the decree ordered zero support.

{¶ 9} In April 2016, Matthew filed a motion to correct the judgment and a motion for relief from judgment, based on his overpayment of child support that was supposed to be returned to him. By mistake, this provision had not been included in the divorce decree. The parties then filed an agreed entry in July 2016, which awarded Matthew a judgment of $1,070 in overpaid child support. Amanda agreed to begin paying $30 per month beginning August 1, 2016, and Matthew agreed to accept a reduced sum of $800 if the amount was paid in full on or before June 30, 2017.

{¶ 10} Matthew then filed a motion for modification of child support in September 2016, and a hearing was held on January 4, 2017. Following the hearing, the magistrate filed a decision, recommending that Matthew's request be overruled, and that child support remain at zero dollars. Matthew filed objections and supplemental objections, which the trial court overruled in July 2017. This appeal followed.

II. Alleged Error Concerning Support Obligation

{¶ 11} Matthew's First Assignment of Error states that:

The Trial Court Erred In Finding that the Appellee's Support Obligation Is Not Ten Percent Greater Than the Support Obligation Actually Calculated at the Time of the Decree.

{¶ 12} Under this assignment of error, Matthew contends that because zero child support was ordered at the time of the decree, the amount calculated in connection with modification (about $299 per month) met the 10% requirement for a substantial change of circumstances in R.C. 3119.79(A). Matthew further contends that the trial court incorrectly created new law by finding that if an obligor is required to seek work, ultimately obtaining employment would not be a change of circumstances since it was contemplated by the decree.

{¶ 13} We review child support decisions for abuse of discretion. Booth v. Booth , 44 Ohio St.3d 142, 144, 541 N.E.2d 1028 (1989). " 'Abuse of discretion' has been defined as an attitude that is unreasonable, arbitrary, or unconscionable." (Citation omitted.) AAAA Enterprises, Inc. v. River Place Community Urban Redevelopment Corp. , 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). However, the Supreme Court of Ohio has stressed that "most instances of abuse of discretion will result in decisions that are simply unreasonable." Id. The court has also said that "[a] decision is unreasonable if there is no sound reasoning process that would support that decision." Id.

{¶ 14} R.C. 3119.79(A) provides that:

If an obligor or obligee under a child support order requests that the court modify the amount of support required to be paid pursuant to the child support order, the court shall recalculate the amount of support that would be required to be paid under the child support order in accordance with the schedule and the applicable worksheet through the line establishing the actual annual obligation. If that amount as recalculated is more than ten per cent greater than or more than ten per cent less than the amount of child support required to be paid pursuant to the existing child support order, the deviation from the recalculated amount that would be required to be paid under the schedule and the applicable worksheet shall be considered by the court as a change of circumstance substantial enough to require a modification of the child support amount.

{¶ 15} In finding that modification of support was not warranted, the trial court concluded that Matthew was required to establish that Amanda's support obligation was more than 10% greater due to her change in income, and was also required to establish that her change in circumstances was not contemplated at the time of the decree. Doc. # 70, Decision & Entry Adopting Magistrate's Decision and Order, p. 6. In this regard, the court compared Amanda's current support obligation of $299 with the $302 listed in the Child Support Computation Worksheet attached to the divorce decree, and found that her support obligation had not increased by more than 10%.

{¶ 16} The court also held that Matthew had not established the second requirement either, because when the divorce decree was filed, the parties contemplated that Amanda would obtain employment at some point. As a result, the court found no change in circumstances that would permit modification of child support. In reaching these conclusions, the trial court relied on our prior decision in Baire v. Baire , 102 Ohio App.3d 50, 656 N.E.2d 984 (2d Dist.1995). Doc. # 70, at p. 5.

{¶ 17} However, shortly before the trial court's decision, we had concluded that our decision in Baire was inconsistent with the decision of the Supreme Court of Ohio in DePalmo v. DePalmo , 78 Ohio St.3d 535, 679 N.E.2d 266 (1997). See Mossing-Landers v. Landers , 2016-Ohio-7625, 73 N.E.3d 1060, ¶ 51-52 (2d Dist.). We stressed, among other things, that DePalmo had not yet been decided when Baire was issued. Id. at ¶ 52.

{¶ 18} Like the case before us, DePalmo involved a situation where a father had waived child support when the parties' divorce decree was filed. Mossing-Landers at ¶ 56, citing DePalmo at 535-536, 679 N.E.2d 266. In DePalmo , the father subsequently moved for a support order, and the mother argued that the court should use what was called the "dual threshold test." This test restricted use of the 10% threshold test, and "allowed modification only where a change in circumstances had occurred so that the custodial parent could no longer provide the total amount of support that was reasonable, or where the non-custodial parent's circumstances had substantially changed so that the trial court could find, in its discretion, that support from the noncustodial parent was in the children's best interests." Mossing-Landers at ¶ 57, citing DePalmo at 538, 679 N.E.2d 266. The Supreme Court of Ohio rejected the use of this test, however. Id. at ¶ 58.

{¶ 19} We made the following observations about the court's rejection of the dual threshold test:

First, the court stated [in DePalmo ] that whether a support order is currently in existence "is a distinction without a difference and is immaterial to whether child support should be calculated according to the statutory guidelines." [ DePalmo , 78 Ohio St.3d] at 539, 679 N.E.2d 266. As was noted, the court then stated that "[i]f a support order already exists, the only test to determine whether child support shall be modified is set forth by R.C. 3113.215(B)(4) [now R.C. 3119.79 ] * * *." (Emphasis sic.) (Parenthetical material added.) Id.
The court went on to stress the requirement of strictly complying with the Child Support Guidelines, and stated that "[o]bviously, when the amount of child support provided by the noncustodial parent is zero, but the Child Support Guidelines clearly establish that the noncustodial parent owes support, then that ten percent difference is clearly met." DePalmo , 78 Ohio St.3d at 540, 679 N.E.2d 266. Notably, the court did not consider whether the change in circumstances was contemplated at the time of the original order, and did not agree with the obligor's argument that support (or rather the order of no support) should not be modified because "circumstances at the time of the hearing were substantially similar to those on * * * the date of the original agreement." Id. at 536-537, 679 N.E.2d 266.
Ultimately, the Supreme Court of Ohio stated that "[w]hen the court is modifying a preexisting order for the payment of child support, the court must apply the ten percent test established by R.C. 3113.215(B)(4) [now R.C. 3119.79(A) ] in the Child Support Guidelines and the standards set out in Marker [v. Grimm , 65 Ohio St.3d 139, 601 N.E.2d 496 (1992) ]." (Parenthetical material added.). DePalmo at 540-541, 679 N.E.2d 266.
As a result, the trial court was required to recalculate the support and, if the difference were more or less than 10 percent, that would constitute a substantial change in circumstances . This is not to say that the trial court has no discretion at all in the matter. R.C. 3119.22 specifically allows courts to deviate from the amount of support calculated if that amount "would be unjust or inappropriate and would not be in the best interest of the child." In this situation, however, the trial court must comply with Marker by including "findings of fact to support such determination." Marker , 65 Ohio St.3d 139, 601 N.E.2d 496, at paragraph three of the syllabus.

(Emphasis added; footnote omitted.) Mossing-Landers , 2016-Ohio-7625, 73 N.E.3d 1060, at ¶ 58-61.

{¶ 20} The facts in the case before us indicate that the decree and the order attached to the divorce decree ordered zero child support. In calculating the child support for purposes of the requested modification, the trial court attributed $16,925 to Amanda, which resulted in an actual annual support obligation of $3,589.09, or $299.09 per month. See Ex. A attached to Doc. # 70. This was clearly an increase of over 10% and the trial court, therefore, erred in concluding that modification was unwarranted under R.C. 3119.79. Mossing-Landers at ¶ 33-65. Accord Schilling v. Ball , 11th Dist. Lake No. 2016-L-072, 2017-Ohio-5511, 2017 WL 2735379, ¶ 16-18 (trial court was not required to find a substantial change in circumstances not contemplated by the prior decree when it ordered appellant to pay $356 per month in child support despite prior agreement to deviate support to zero; 10% deviation in support amount was sufficient under DePalmo ).

{¶ 21} A point we did not specifically mention in Mossing-Landers is the wording of R.C. 3119.79(A) itself, which finds a substantial modification sufficient to require modification if the recalculated amount "is more than ten per cent greater than or more than ten per cent less than the amount of child support required to be paid pursuant to the existing child support order ." (Emphasis added.) This statute does not refer to the amount of child support calculated as potentially payable in a prior child support computation worksheet; it refers to the amount required to be paid under the existing order. This statement is not ambiguous. Clearly, when the prior order requires zero dollars to be paid, a recalculated amount of $299.09 is more than a 10% increase.

{¶ 22} We further note that nothing in the divorce decree prohibited either party from seeking modification of child support. Mossing at ¶ 65. Accordingly, the trial court erred in requiring Matthew to show a substantial change of parental circumstances in addition to the 10% change in the amount of child support. The First Assignment of Error, therefore, is sustained.

III. Determination of Wages

{¶ 23} Matthew's Second Assignment of Error states that:

The Trial Court Erred in Determining that the Appellant Failed to Establish that the Appellee Is Fully Employed Earning More than $16,952.00 (the Current Minimum Wage in Ohio).

{¶ 24} Under this assignment of error, Matthew contends that the trial court erred in concluding that he failed to establish that Amanda was earning more than $16,952, or the current Ohio minimum wage. In this regard, Matthew notes that Amanda filed an affidavit of income and expenses, in which she stated that her gross annual wages were $22,048. He also notes that Amanda testified at the hearing that she was earning $10.60 per hour at Meijer, which would equate to $22,048 in gross income per year.

{¶ 25} Matthew has attached an affidavit to his brief, but there is no file-stamp on the affidavit, and it is not docketed in the trial court record. As a result, we will not consider it. Nonetheless, Amanda did testify during the hearing, which was held in early January 2017, that she was currently earning $10.60 per hour.

{¶ 26} Amanda claimed at the hearing that she was "part-time," but admitted that she had worked 40 hours per week at Meijer ever since she was hired in early June 2016. She also said that Meijer was currently scheduling her 40 hours per week. Transcript of Proceedings, pp. 23-24. According to Amanda, Meijer had threatened to cut hours in January and February and had said that it had to "cut so many hours every week out of each department." Id. at p. 24. Amanda then stated, "I don't know how that's going to work." Id.

{¶ 27} Although Amanda claimed she was part-time, she had also consistently worked 40 hours per week since she was hired, and her testimony about the probability of receiving less hours was mere speculation. This is not a credibility decision to which we would normally defer; the court's calculation of Amanda's gross income at a minimum wage level was based on speculation. However, even at the minimum wage level used by the trial court, a 10% change in the amount of support existed.

{¶ 28} Based on the preceding discussion, the Second Assignment of Error is sustained.

IV. Abuse of Discretion in Refusing to Order Child Support

{¶ 29} Matthew's Third Assignment of Error states that:

The Trial Court Erred and Abused Its Discretion in Refusing to Make an Award of Child Support.

{¶ 30} Under this assignment of error, Matthew contends that the trial court erred in failing to comply with requirements for ordering a deviation from the guidelines for child support, and, therefore, abused its discretion.

{¶ 31} As was noted, we review support orders for abuse of discretion, which most often occurs when a trial court's decision is based on unsound reasoning. Booth , 44 Ohio St.3d at 144, 541 N.E.2d 1028 ;

AAAA Enterprises, Inc. , 50 Ohio St.3d at 161, 553 N.E.2d 597.

{¶ 32} R.C. 3119.22 allows a court to deviate "from the amount of child support that would otherwise result from the use of the child support guidelines and the applicable worksheet if the court determines that the actual annual obligation would be unjust or inappropriate and would not be in the child's best interest." (Citations omitted). In re C.S.M. , 2d Dist. Greene No. 2015-CA-28, 2015-Ohio-4608, 2015 WL 6817899, ¶ 24.

{¶ 33} "If the court enters a child support order that deviates from the calculated amount, 'the court must enter in the journal the amount of child support calculated pursuant to the basic child support schedule and the applicable worksheet, through the line establishing the actual annual obligation, its determination that that amount would be unjust or inappropriate and would not be in the best interest of the child, and findings of fact supporting that determination.' " In re S.H. , 2d Dist. Montgomery No. 23382, 2009-Ohio-6592, 2009 WL 4829828, ¶ 46, quoting R.C. 3119.22. Accord C.S.M. at ¶ 24 ; Lenoir v. Paschal, 2d Dist. Montgomery No. 23732, 2010-Ohio-2922, 2010 WL 2546513, ¶ 7.

{¶ 34} We have stressed that under the decision of the Supreme Court of Ohio in Marker , "any court-ordered deviation from the applicable worksheet and the basic child support schedule must include findings of fact to support the determination." C.S.M. at ¶ 24, citing Marker , 65 Ohio St.3d at 143, 601 N.E.2d 496. R.C. 3119.23(A) - (O) lists 15 specific factors that courts may use in deciding whether to grant a deviation under R.C. 3119.22. Additionally, R.C. 3119.23(P) is non-specific and lets courts consider "[a]ny other relevant factor."

{¶ 35} In the case before us, the trial court concluded that the deviation issue was moot because Matthew failed to establish both a 10% deviation in the amount of support, and also failed to show a change of circumstances. The court then stated that:

In any event, the parties agreed that it was in the best interests of the minor children to deviate to no child support at the time of the Decree. The Court specifically finds that the reasons to deviate child support to $0.00 are as true today as they were when child support was set by the parties.

Doc. # 70, p. 7.

{¶ 36} Although the court indicated the issue of deviation was moot, it nonetheless considered it, while failing to either make findings under R.C. 3119.22 or refer to any factors listed in R.C. 3119.23. Furthermore, the trial court's remark that the reasons for deviating were as true in 2017 as they were in 2015 when the parties agreed to waive support, is simply not supported by the record. The divorce decree mentioned only that Amanda was unemployed. In contrast, at the time of the modification hearing, Amanda was employed and had been fully employed for several months. Accordingly, the trial court abused its discretion to the extent that it deviated from the appropriate amount of support without complying with R.C. 3119.22 and R.C. 3119.23.

{¶ 37} In his brief, Matthew also contends that the trial court erred in calculating his income. We disagree, in part. In the first place, Matthew's gross earnings were not $32,000 as he contends. The exhibit Matthew submitted indicates that his gross earnings in 2016 were $35,566.09, which is the figure the trial court used. See Defendant's Ex. 1 and Doc. # 70, pp. 2-3. Matthew's net earnings were $31,708.02, which is close to the figure he claims.

However, the statute and worksheet refer to "gross," not "net" income. See R.C. 3119.022. Thus, the trial court did not err in this regard.

{¶ 38} Furthermore, we do not completely agree that the court erred with respect to the healthcare premiums. Contrary to Matthew's assertion, these amounts were not included in his gross income; the court simply did not credit him with payments for healthcare. The trial court noted that Matthew's employer paid the premiums and stated that it was impossible to determine if Matthew had paid any money for the premiums. See Doc. # 70, p.3, citing Defendant's Ex. 1. At the hearing, Matthew indicated that Defendant's Ex. 3 showed the cost of his health insurance monthly; he claimed that he paid a total of $830.85 per month, and that $493.24 of this amount was for his children's health coverage. Transcript of Proceedings, p. 11. However, this is inconsistent with Ex. 1, which indicates a possible yearly deduction from his wages of around $3,131.16 for health and dental coverage, or about $260.93 per month. Since this matter is being reversed and remanded, the trial court can decide on remand what amount, if any, should be credited toward premiums, since it appears that Matthew did pay some amount for the children's healthcare.

{¶ 39} The trial court also added $8,544.96 in mileage reimbursements and other payments to arrive at a figure of $44,110 for Matthew's gross income. See Doc. # 70, p. 3 and Ex. A attached to Doc. # 70. This amount was taken from Matthew's pay statement. See Defendant's Ex. 1. As support for its decision, the trial court cited two cases: Neal v. Halsey , 2d Dist. Greene No. 95-CA-22, 1995 WL 765964 (Dec. 20, 1995), and Lyons v. Bachelder , 5th Dist. Morrow No. 2004AP0017, 2005-Ohio-4966, 2005 WL 2300226. Doc. # 70, p. 6.

{¶ 40} Neal involved a decision on the gross income of an independent insurance salesman who had claimed various business expenses on his tax return, including deductions for the standard mileage rate and specific expenses for maintenance and repair of his car. In calculating his income for purposes of child support, the trial court accepted all of his business expenses other than the deduction for the automobile expenses (including mileage). Neal at *1.

{¶ 41} After the opposing party appealed, we considered R.C. 3113.215(A)(2), which defined "gross income," R.C. 3113.215(A)(3), which defined "self-generated income," R.C. 3113.215(A)(4)(a), which defined "ordinary and business expenses incurred in generating gross receipts," and R.C. 3113.215(A)(4)(b), which defined items like depreciation and other noncash items that may be deducted under federal tax returns but not as ordinary and necessary business expenses incurred in generating gross receipts. Id. at *2.

{¶ 42} We also considered federal tax law, which allowed deduction of expenses incurred in carrying on a trade or business and traveling expenses while an individual is away from home in pursuit of a trade or business. Id. at *3, citing 26 U.S.C. 162(a). At the time, the standard business mileage rate was $.29 a mile, which included a depreciation amount of $.12 per mile. Id.

{¶ 43} After considering these matters, we concluded that the trial court erred by failing to deduct any of the business mileage expenses from the obligor's gross income. We allowed the amount of mileage the obligor claimed to have driven for business, using the standard mileage rate; however, we also held that "for purposes of child support calculation, a parent is not entitled to the type of depreciation included within the standard mileage deduction. R.C. 3113.215(A)(4)(b). Therefore, twelve cents per mile must be deducted from the twenty-nine cent standard rate." Id.

{¶ 44} Our comments in Neal do not support a requirement for inclusion of mileage reimbursements within gross income for purposes of calculating child support, nor do they eliminate a need for analysis. Under our decision in Neal , the following amounts may be added to an obligor's gross income: (1) the amount attributable to depreciation, using the standard mileage allowed by the Internal Revenue Service for business travel; and (2) any part of reimbursed mileage that was used for personal, rather than business travel. Consequently, including the total amount and also failing to use any analysis for including particular amounts would be incorrect.

{¶ 45} Lyons involved a doctor's assertion that he should receive a deduction from his calculated income for business mileage in the amount of $4,635 for two vehicles. The doctor drove one vehicle, and his wife drove the other. Lyons , 5th Dist. Morrow No. 2004AP0017, 2005-Ohio-4966, at ¶ 41 and 48-59. The doctor's medical corporation, which was titled in his name, had deducted expenses in the amount of $4,635.00 for the use of motor vehicles driven for business-related miles. Id. at ¶ 45. During trial, the doctor testified that the amount of his personal use of the auto had been factored into his W-2 form. However, he failed to testify as to any particular amount that had been included in his taxable income. Id. at ¶ 49. Based on the doctor's testimony, the court of appeals held that the trial court did not abuse its discretion by failing to deduct the business mileage expense from the doctor's income. The court of appeals noted that the doctor had not offered evidence to the contrary. Id. at ¶ 71. Again, this fact-based holding does not justify a blanket statement that mileage reimbursements from an employer are properly included in gross income for child support calculation purposes.

{¶ 46} Neal differs somewhat from the case before us in that it involved self-generated income, which is statutorily defined to include "expense reimbursements * * * if the reimbursements are significant and reduce personal living expenses." R.C. 3119.01(C)(13). Self-generated income is also limited to "gross receipts received by a parent from self-employment, proprietorship of a business, joint ownership of a partnership or closely held corporation, and rents minus ordinary and necessary expenses incurred by the parent in generating the gross receipts." Id.

{¶ 47} In contrast, "gross income" (which applies here) is defined by R.C. 3119.01(C)(7) as "the total of all earned and unearned income from all sources during a calendar year * * *." The statute does not include expense reimbursements within the listed examples of "income."

{¶ 48} Recently, in Morrow v. Becker , 138 Ohio St.3d 11, 2013-Ohio-4542, 3 N.E.3d 144, the Supreme Court of Ohio considered whether a trial court erred in including within gross income certain employer-paid benefits like the value of a car, car insurance, and a cellular telephone. Id. at ¶ 7. The obligor argued that these items should "be considered part of gross income only if the recipient is self-employed, a proprietor of a business, or a joint owner of a partnership or closely held corporation." Id. at ¶ 12. In support of this proposition, the obligor reasoned that because "the only statutory reference to company cars and other in-kind items is in the context of 'self-employment, proprietorship of a business, joint ownership of a partnership or closely held corporation,' the General Assembly meant to exclude such items from gross income when they are received outside that context." Id. at ¶ 12-13, referring to the definitions of "gross income" in R.C. 3119.01(C)(7) and "self-generated income" in R.C. 3119.01(C)(13).

{¶ 49} The Supreme Court of Ohio disagreed, however, commenting that:

We find nothing in the statutory scheme to support that conclusion. To be sure, R.C. 3119.01(C)(13) states that "self-generated income" includes company cars. That is a far stretch from stating that company cars cannot be part of gross income unless they are from self-generated income.
The record indicates that Morrow [the obligor] did not have a car, car insurance, or phone, other than the car, car insurance, and phone provided to him by his employer. Based on that understanding, the trial court, after reviewing case law, concluded that "it was reasonable to include the value of these benefits in the Plaintiff's gross income." We agree. If his employer did not provide a car, Morrow would have had to purchase or lease one on his own, using his own funds. Accordingly, it is sensible to conclude that the provision of a car is no different from the provision of funds to buy or lease a car. Either way, the person receiving the benefit effectively has a higher income.

Morrow , 138 Ohio St.3d 11, 2013-Ohio-4542, 3 N.E.3d 144, at ¶ 14-15.

{¶ 50} The issue, therefore, appears to be the same whether a parent is an employee or fits within the particular categories outlined in R.C. 3119.01(C)(13). Specifically, a court should consider whether a "reimbursement" or benefit caused a parent, effectively, to have a higher income. An example of this can be found in Parrick v. Parrick , 3d Dist. Hancock No. 5-12-12, 2013-Ohio-422, 2013 WL 500498. In that case, the court of appeals found no error in a trial court's decision to exclude an employee's income mileage reimbursements from her employer as part of her gross income for child support purposes. The court commented that the employee's "expense reimbursements from her employers were merely repaying her for the money that she had spent, as required by her job." Id. at ¶ 33.

{¶ 51} In the case before us, the record does not indicate whether Matthew's reimbursement caused him to effectively have a higher income, and the trial court did not consider this issue. Instead, the court included the total reimbursement within Matthew's gross income, while offering no reasoning and citing cases that do not support blanket inclusion. Accordingly, since this case is being reversed and remanded, the court should reconsider this issue in view of the above authority, and should allow the presentation of further evidence.

{¶ 52} Based on the preceding discussion, the Third Assignment of Error is sustained in part and overruled in part.

V. Conclusion

{¶ 53} Matthew's First and Second Assignments of Error having been sustained, and his Third Assignment of Error having been sustained in part and overruled in part, the judgment of the trial court is affirmed solely with respect to the court's decision on the amount of Matthew's gross income from wages. In all other respects, the judgment is reversed, and this cause is remanded for further proceedings consistent with this opinion.

DONOVAN, J. and TUCKER, J., concur.

      Matthew's counsel did question Amanda at the hearing about an affidavit that the court had ordered her to prepare, and that Amanda had sent to him. Transcript of Proceedings, pp. 24-29. We assume this may be the same affidavit, but it was not specifically identified at the hearing, nor was it made an exhibit.

      The magistrate used an incorrect hourly wage of $10.40 in its decision. See Magistrate's Decision, Doc. # 63, pp. 2-3. In contrast, Amanda testified at the hearing that she had received a raise to $10.60 per hour. Transcript of Proceedings, p. 23. Based on Amanda's testimony, there is no question that if Amanda worked 40 hours per week, her yearly gross income would be $22,048.

      We say "possible" because Matthew did not testify about these amounts on Ex.1 at trial, and the deductions on that exhibit merely state "Dent 125" and "H 125." For purposes of discussion, we assume these may be deductions for health and dental coverage, as it seems clear that is what the amounts represent.

      The actual total for the wages and reimbursements is $41,111.05, but this slight difference is irrelevant for purposes of our discussion.

      These sections were later re-codified, respectively, as R.C. 3119.01(C)(7), R.C. 3119.01(C)(13), R.C. 3119.01(C)(9)(a), and R.C. 3119.01(C)(9)(b). There was no pertinent change in the definitions.


source: Caselaw Access Project

author: CALLAHAN, Judge.

license: Public Domain

text:
    STATE of Ohio, Appellee v. John LEHMAN, Appellant
    No. 28724
    Court of Appeals of Ohio, Ninth District, Summit County.
    Dated: March 28, 2018
    KRISTEN KOWALSKI, Attorney at Law, for Appellant.
    SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.
    DECISION AND JOURNAL ENTRY
   CALLAHAN, Judge.

{¶ 1} Defendant-Appellant, John Lehman, appeals from his conviction in the Summit County Court of Common Pleas. This Court affirms.

I.

{¶ 2} The victims in this case are a married couple who reside in a single-family home in Richfield. On the morning of September 14, 2016, someone burglarized their home while they were at work. The wife homeowner discovered the break-in when she came home at lunchtime to care for their dogs. Video surveillance taken from the home, in conjunction with further investigation, led to the police identifying Mr. Lehman as the perpetrator.

{¶ 3} A grand jury indicted Mr. Lehman on a single count of burglary, in violation of R.C. 2911.12(A)(2). Mr. Lehman waived his right to a jury, and the matter proceeded to a bench trial. On the day of trial, Mr. Lehman stipulated to all of the essential elements of his charge, save for the one requiring the State to prove that someone was likely to be present in the home when he burglarized it. After hearing the evidence, the court found him guilty as charged and sentenced him to six years in prison.

{¶ 4} Mr. Lehman now appeals from his conviction and raises one assignment of error for this Court's review.

II.

ASSIGNMENT OF ERROR

[MR.] LEHMAN'S CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, MERITING REVERSAL.

{¶ 5} In his sole assignment of error, Mr. Lehman argues that his burglary conviction is against the manifest weight of the evidence. Specifically, he argues that the court lost its way when it found that someone was likely to be present at the time he burglarized the homeowners' residence. This Court disagrees.

{¶ 6} When a defendant argues that his conviction is against the weight of the evidence, this court must review all of the evidence before the trial court.

In determining whether a criminal conviction is against the manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.

State v. Otten , 33 Ohio App.3d 339, 340, 515 N.E.2d 1009 (9th Dist. 1986). "When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a 'thirteenth juror' and disagrees with the fact[-]finder's resolution of the conflicting testimony." State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting Tibbs v. Florida , 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). An appellate court should exercise the power to reverse a judgment as against the manifest weight of the evidence only in exceptional cases. Otten at 340, 515 N.E.2d 1009.

{¶ 7} A person commits burglary when he (1) uses force, (2) to trespass, (3) in an occupied structure, (4) where someone other than his accomplice temporarily or permanently resides, (5) for the purpose of committing a criminal offense, (6) "when [someone] other than an accomplice * * * is present or likely to be present * * *." R.C. 2911.12(A)(2). The law does not presume that someone is "likely to be present" simply because a structure is "occupied." See State v. Fowler , 4 Ohio St.3d 16, 18-19, 445 N.E.2d 1119 (1983), quoting State v. Wilson , 58 Ohio St.2d 52, 59, 388 N.E.2d 745 (1979). Instead, the State must separately prove each element. See Fowler at 18-19, 445 N.E.2d 1119, quoting Wilson at 59, 388 N.E.2d 745. The "likely to be present" element concerns "the probability or improbability of actual occupancy occurring during the time of the offense, determined by all the facts surrounding that occupancy." State v. Najeway , 9th Dist. Summit No. 13489, 1988 WL 114447, *2 (Oct. 26, 1988).

Where the [S]tate proves that an occupied structure is a permanent dwelling house which is regularly inhabited, that the occupying family was in and out on the day in question, and that such house was burglarized when the family was temporarily absent, the [S]tate has presented sufficient evidence to support a charge of [ ] burglary * * *.

State v. Treichel , 9th Dist. Lorain No. 95CA006296, 1996 WL 556909, *3 (Oct. 2, 1996), quoting Fowler at 19, 445 N.E.2d 1119, quoting State v. Kilby , 50 Ohio St.2d 21, 361 N.E.2d 1336 (1977), paragraph one of the syllabus. The trier of fact may infer "from the evidence presented [that] someone was likely to be present on the day in question." State v. Walters , 9th Dist. Medina No. 2775-M, 1998 WL 668378, *3 (Sept. 30, 1998).

{¶ 8} The wife homeowner testified that she habitually left her home for work between 6:30 and 7:00 a.m. and worked until 4:00 p.m. In between those times, however, she regularly returned home for a lunch hour to care for several dogs. Two of those dogs belonged to her and her husband, and the third belonged to their daughter and her fiancé. The wife homeowner testified that she did not always take her lunch hour at the same time and that she regularly returned home for forgotten items, to care for the dogs, or for various appointments because her office was located less than three miles away. On the day of the burglary, she left her office at approximately 11:45 a.m. to return home for lunch.

{¶ 9} The husband homeowner testified that he left for work around 6:30 a.m. the morning of the burglary and was scheduled to work until 4:00 p.m. He admitted that he seldom left work once he arrived there, but stated that his schedule could vary from day-to-day and week-to-week. Because he worked on weekends, he had two weekdays off instead and sometimes had to change shifts to cover for his co-workers. Further, he testified that it was common for him to take vacation days in September because summer was a busy time and he risked losing his accrued vacation time each year if he did not use it.

{¶ 10} There was testimony that the homeowners' daughter and her fiancé came to the homeowners' residence twice each weekday because, while they were working, their dog stayed with the homeowners' dogs. The fiancé testified that, around the time of the burglary, he dropped off their dog between 8:30 a.m. and 9:30 a.m. on Mondays, Tuesdays, and Thursdays, and his fiancée dropped off the dog before 8:00 a.m. on Wednesdays and Fridays. He also testified, however, that his schedule varied depending on his clients.

{¶ 11} A second homeowner testified that he was home at approximately 8:15 a.m. on the day of the burglary. While walking to his laundry room, he was startled to see a man standing outside his front door. He testified that a large portion of his front door was made of glass, so he could clearly see the man through the door. Noting that his presence also appeared to have startled the man, he approached the front door and spoke to the man without opening it. According to the second homeowner, when he asked the man what he was doing there, the man said "something about a lawn mower on Craigslist." The second homeowner then expressed that he had no knowledge of that item and watched as the man left, climbed into an SUV, and drove away. The defense stipulated that Mr. Lehman was the man at the second homeowner's residence that morning.

{¶ 12} Mr. Lehman testified in his own defense. He testified that he went to the homeowners' and the second homeowner's residences on the day of the burglary because he was trying to locate jewelry that had been stolen from his uncle. Believing that individuals who resided in the two households had purchased the jewelry on the internet, he went there intending to buy it back. Mr. Lehman claimed that he went to the homeowners' residence around 9:30 a.m. the day before the burglary and tried knocking on their door for 5-10 minutes. When no one answered, he decided to return the following day. Mr. Lehman testified that, on the day of the burglary, he went to the second homeowner's residence before driving to the homeowners' residence. He testified that he was "[p]ositive no one was home" at the homeowners' residence because he knocked for several minutes to no avail and a jogger he stopped told him the residents were at work. On cross-examination, he conceded that he lied to the police when they interviewed him about this matter.

{¶ 13} Mr. Lehman argues that the trier of fact lost its way by convicting him because the evidence weighs in favor of the conclusion that no one was likely to be present when he broke into the homeowners' residence. He notes that, at the time of the burglary, both of the homeowners were at work and there was evidence that their daughter had already left her dog at their house. According to Mr. Lehman, the homeowners and their daughter's fiancé purposely made it appear that there were frequent variations in their schedules when, in fact, there were not. He argues that they were well aware that the "likely to be present" element was the only contested issue in the case because they were present when the parties discussed that issue at the start of trial and, on cross-examination, admitted discussing that issue in advance of trial. Mr. Lehman claims that those discussions caused them to exaggerate their schedule variations. As such, he asserts that their testimony was not credible.

{¶ 14} Having reviewed the record, this Court cannot conclude that the trier of fact lost its way when it found that someone was "likely to be present" at the homeowners' residence at the time of the burglary. " 'People come home for many reasons-personal, sickness, lunch, etc.' " Treichel , 1996 WL 556909, at *3, quoting State v. Tucker , 9th Dist. Lorain No. 89CA004533, 1990 WL 108746, *2 (Aug. 1, 1990). The wife homeowner testified that she worked less than three miles from home, came home on a regular basis for lunch, and otherwise regularly returned home during the week for forgotten items or appointments. See State v. Wesemann , 9th Dist. Summit No. 25908, 2012-Ohio-247, 2012 WL 220498, ¶ 20. Compare State v. Durham , 49 Ohio App.2d 231, 360 N.E.2d 743 (1st Dist. 1976) (evidence on the "likely to be present" element lacking where the victim lived alone, usually worked during the time of the break in, and only testified to an occasional variance in his routine). Moreover, her husband and her daughter's fiancé both testified to a range of variation in their work schedules. There was evidence that either the homeowners' daughter or her fiancé came to the home each morning to drop off their dog and, when the fiancé brought the dog, he generally arrived during the timeframe in which the burglary occurred. Based on all of the foregoing testimony, the trier of fact reasonably could have inferred that someone was likely to be present at the time of the break in. See Wesemann at ¶ 20 ; Tucker at *2; Walters , 1998 WL 668378, at *3 ; Treichel at *3 ; State v. Cope , 9th Dist. Lorain No. 3690, 1984 WL 3946, *2 (Sept. 12, 1984).

{¶ 15} To the extent Mr. Lehman asserts that the State's witnesses exaggerated their testimony, "the trier of fact [was] in the best position to determine [their] credibility * * * and evaluate their testimony accordingly." State v. Johnson , 9th Dist. Summit No. 25161, 2010-Ohio-3296, 2010 WL 2767542, ¶ 15. "A verdict is not against the manifest weight of the evidence because the finder of fact chooses to believe the State's witnesses rather than the defendant's version of the events." State v. Martinez , 9th Dist. Wayne No. 12CA0054, 2013-Ohio-3189, 2013 WL 3864541, ¶ 16. Mr. Lehman has not shown that this is the exceptional case where the evidence weighs heavily against his conviction. See Otten , 33 Ohio App.3d at 340, 515 N.E.2d 1009. Consequently, this Court overrules his sole assignment of error.

III.

{¶ 16} Mr. Lehman's sole assignment of error is overruled. The judgment of the Summit County Court of Common Pleas is affirmed.

Judgment affirmed.

SCHAFER, P.J.

HENSAL, J.

CONCUR.


text:
    Patricia SCHAEFER, Plaintiff-Appellee v. Frank A. BOLOG, Defendant-Appellant
    NO. 17 MA 0085
    Court of Appeals of Ohio, Seventh District, Mahoning County.
    Dated: March 29, 2018
    Atty. Thomas W. Connors, Black McCuskey Souers & Arbaugh, 220 Market Avenue South, Suite 1000, Canton, Ohio 44702, For Plaintiff-Appellee
    Atty. Craig T. Conley, 604 Huntington Plaza, 220 Market Avenue South, Canton, Ohio 44702, For Defendant-Appellant
   JUDGES: Hon. Cheryl L. Waite, Hon. Gene Donofrio, Hon. Carol Ann Robb

OPINION

WAITE, J.

{¶ 1} Appellant, Frank A. Bolog, appeals the decision of the Mahoning County Court of Common Pleas, Probate Division, in favor of Appellee, Patricia Schaefer, following jury trial in a will contest action. On appeal, Appellant argues the trial court erred when it denied his motion for summary judgment and his motion for reconsideration after denial of summary judgment. Appellant contends the court also erred in denying his motion for a directed verdict and in entering judgment for Appellee after trial.

{¶ 2} The parties are brother and sister. Appellant proposed to probate a will signed by his father, Decedent. Appellee contested the validity of this will. Appellee based her challenge to the will on the testamentary capacity of Decedent, claiming he was under the undue influence of Appellant. Appellant contends this matter never should have gone to trial and that his motion for summary judgment and his subsequent motion for reconsideration of its denial should have been granted because Appellee failed to meet her burden to demonstrate that a genuine issue of material fact existed. Additionally, Appellant contends the trial court should have granted the motion for directed verdict he made after Appellee's opening statement at trial, because Appellee failed to argue that Decedent lacked testamentary capacity. Appellant also claims that the trial court erred in entering judgment consistent with the jury verdict, but does not provide any argument regarding that assignment. Appellant has failed to demonstrate the trial court erred in denying his motion for summary judgment or the subsequent reconsideration motion. Further, Appellant has failed to demonstrate the trial court erred in denying his motion for a directed verdict or that the trial court erred in entering judgment based on the jury verdict. Accordingly, Appellant's assignments of error are without merit and the judgment of the trial court is affirmed.

Factual and Procedural History

{¶ 3} Frank K. Bolog, ("Decedent") was married to Betty Bolog ("Betty"). Both were the parents of Appellant and Appellee. Decedent ran a bus transportation business for many years. The business was turned over to Appellant. The family home was transferred to Appellee. Decedent and Betty had executed a will in 1954 which was still valid in 2013 when Decedent, accompanied by Appellant, visited the family attorney, Stephen Stone. Decedent asked that the will be rewritten to remove Appellee as a beneficiary, allegedly because she was trying to take over the business. Stone advised against such action and instead recommended that Decedent open a bank account and name Appellant as the beneficiary payable on death. Rather than take that advice, on September 10, 2013 Decedent, again accompanied by Appellant, visited an attorney who handled the family business, Dennis Clunk. Decedent made the same request to remove Appellee as a beneficiary under the will. Clunk advised that Decedent "go to lunch" and think about it before executing the will. Decedent returned that day, again accompanied by Appellant, and executed the will as changed.

{¶ 4} Decedent and Betty were living with Appellee and she had been their primary caretaker for several years. Guardianship proceedings for Decedent and Betty were filed by Appellee in the Stark County Court of Common Pleas, Probate Division, the parties' county of residence. (Stark County Case No. 219089). Decedent had been evaluated for dementia on August 8, 2013, by Dr. Suzanne Beason-Hazen. He was found to have mild dementia and was determined to be incapable of managing his finances and property. Dr. Beason-Hazen's report was filed with Stark County Probate Court on October 11, 2013. Moreover, on October 18, 2013, just over a month from the date of the execution of the will at issue here, Appellant also filed an application for guardianship for Decedent, representing that Decedent was incompetent at that time. The record also contains evidence that on November 13 and 14, 2013, Appellant accompanied Decedent to a number of banks where several thousand dollars were transferred from an account in both parents' names to an account owned by Decedent and Appellant. At around the same time Decedent also executed a power of attorney in favor of Appellant. A guardian for Decedent was named by the Stark County Probate Court. The guardian was able to recover approximately half of the withdrawn funds. On November 18, 2013, Appellant brought Decedent in for an evaluation by Dr. Mark Hostetler at the behest of Attorney Clunk. Dr. Hostetler concluded that at the time, Decedent was experiencing mild dementia, but disagreed with Dr. Beason-Hazen's evaluation regarding Decedent's ability to manage his finances.

{¶ 5} Shortly afterward, Decedent moved out of Appellee's home and into Copeland Oaks Assisted Living. Betty continued to reside with Appellee. Decedent was evaluated at Copeland Oaks on February 3, 2014 by Dr. Mark Shivers, who concluded that Decedent's dementia was mild and that he was competent to make his own decisions and decisions on behalf of his spouse. However, on February 4, 2014, the Stark County Probate Court issued a judgment entry determining that Decedent was incompetent.

{¶ 6} A short time later Betty died. A guardian ad litem report was submitted in the Stark County matter on June 5, 2014. The guardian concluded that Decedent was in full possession of his mental capacities but that the issue of undue influence should be investigated or concluded as quickly as possible. Decedent was re-evaluated on July 24, 2014 by Dr. Robert DeVies. Dr. DeVies concurred with Dr. Beason-Hazen's prior evaluation that Decedent was incapable of managing his personal business.

{¶ 7} Despite conflicting medical evaluations and Appellant's own motion seeking guardianship of Decedent, Appellant filed a motion to terminate guardianship in the Stark County Probate Court on October 16, 2014. Decedent was evaluated again on March 3, 2015, by Dr. Jay Berke, who concluded that Decedent was suffering from moderately severe dementia.

{¶ 8} Decedent passed away on May 29, 2015. The disputed will was admitted to the Mahoning County Court of Common Pleas, Probate Division, on June 1, 2015. Appellee filed a complaint on June 17, 2015 alleging both that Decedent lacked testamentary capacity to execute the 2013 will and that Appellant exerted undue influence over him. An answer was filed on June 24, 2015. Appellee sought leave and filed an amended complaint on July 13, 2016, naming Appellant both individually and in his capacity as executor of the 2013 will. An answer was filed on July 18, 2016. Appellant filed a motion for summary judgment on July 21, 2016 and a supplemental memorandum and motion for leave to file a motion for summary judgment was filed on July 25, 2016. In his summary judgment motion Appellant contended that the Stark County Probate Court found Decedent incompetent but did not provide a reason. Thus, Appellee's assertion in her complaint that Decedent was incompetent by reason of dementia was not supported on summary judgment. Appellant also argued that the Mahoning County Probate Court, in an earlier entry denying a motion filed by Appellee seeking to transfer the matter from Mahoning to Stark County, held that Decedent was competent to form an intent to establish a new domicile. Therefore, Appellant asserted that the probate court had already ruled on Decedent's competency. Appellee opposed Appellant's request to file a motion for summary judgment, alleging only that it was untimely.

{¶ 9} In a judgment entry dated August 24, 2016, the trial court determined that the summary judgment motion was timely filed, but denied the motion, holding that Appellant failed to demonstrate that no genuine issues of material fact remained for trial. The court stated that its earlier ruling, that Decedent had the ability to form an intent to establish a new domicile, was based on a different standard than the standard required to show Decedent lacked testamentary capacity. The court also held that questions of fact remained regarding whether Appellant exerted any undue influence on Decedent.

{¶ 10} Appellant filed a motion for partial reconsideration of the denial of summary judgment on August 29, 2016. In it, he argued the same claims he posited in the underlying summary judgment motion. Appellee filed a motion in opposition, simply alleging that because Appellant failed to meet his initial burden in summary judgment to prove that no question of fact remained to try, she had no reciprocal evidentiary burden. The trial court denied the motion for reconsideration on September 13, 2016 and set the matter for a jury trial. After the conclusion of the jury trial, on April 5, 2017 the trial court held the proposed will dated September 10, 2013, did not constitute the last will and testament of Decedent. Appellant filed this timely appeal and raises four assignments of error.

ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED IN GRANTING JUDGMENT TO APPELLEE ON HER WILL CONTEST ACTION.

{¶ 11} Appellant provides no argument under the first assignment of error. Instead, he refers to it as an "omnibus" assignment of error that is dependent on the other three assignments. Pursuant to the appellate rules, as Appellant has failed to specifically argue this assignment of error or direct our attention to any portion of the record relative to this assignment, it will not be addressed by this Court. App.R. 16(A)(7).

{¶ 12} Turning to those assignments which are supported by argument, assignments of error three and four regarding summary judgment will be addressed first for purposes of clarity.

ASSIGNMENT OF ERROR NO. 3
THE TRIAL COURT, AS A MATTER OF LAW, ERRED IN DENYING APPELLANT'S UNOPPOSED MOTION FOR SUMMARY JUDGMENT.
ASSIGNMENT OF ERROR NO. 4
THE TRIAL COURT, AS A MATTER OF LAW, ERRED IN DENYING APPELLANT'S MOTION FOR RECONSIDERATION OF ITS DENIAL OF HIS UNOPPOSED MOTION FOR SUMMARY JUDGMENT.

{¶ 13} Appellant contends the trial court erred in denying his motion for summary judgment and his motion seeking reconsideration of this denial, claiming that, as a matter of law, there were no genuine issues of material fact left for trial concerning an essential element of Appellee's case.

{¶ 14} An appellate court conducts a de novo review of a trial court's decision to grant summary judgment, using the same standards as the trial court set forth in Civ.R. 56(C). Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Before summary judgment can be granted, the trial court must determine that: (1) no genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing the evidence most favorably in favor of the party against whom the motion for summary judgment is made, the conclusion is adverse to that party. Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977). Whether a fact is "material" depends on the substantive law of the claim being litigated. Hoyt, Inc. v. Gordon & Assoc., Inc. , 104 Ohio App.3d 598, 603, 662 N.E.2d 1088 (8th Dist.1995).

{¶ 15} "[T]he moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim." (Emphasis deleted.) Dresher v. Burt , 75 Ohio St.3d 280, 296, 662 N.E.2d 264 (1996). If the moving party carries its burden, the nonmoving party has a reciprocal burden of setting forth specific facts showing that there is a genuine issue for trial. Id. at 293, 662 N.E.2d 264. In other words, when presented with a properly supported motion for summary judgment, the nonmoving party must produce some evidence to suggest that a reasonable factfinder could rule in that party's favor. Brewer v. Cleveland Bd. of Edn., 122 Ohio App.3d 378, 386, 701 N.E.2d 1023 (8th Dist.1997).

{¶ 16} The evidentiary materials to support a motion for summary judgment are listed in Civ.R. 56(C) and include the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact that have been filed in the case. In resolving the motion, a court views the evidence in a light most favorable to the nonmoving party. Temple , 50 Ohio St.2d at 327, 364 N.E.2d 267.

{¶ 17} Appellant claims that his motion contained unrefuted evidence in the form of the sworn depositions of Attorney Clunk, who drafted the disputed will, and Appellee. Clunk testified that he believed Decedent was competent when he came to Clunk's office seeking to draft a new will. Appellant also relies on Appellee's deposition testimony, where she stated that she had no personal knowledge Appellant exerted undue influence on Decedent, but noticed manipulation of Decedent by Appellant. While Appellant discussed the Stark County probate finding of incompetency, he highlighted that the trial court never gave a reason for its finding. Appellant cited to his own motion to terminate Decedent's guardianship, although it was never adjudicated due to Decedent's death. Finally, Appellant referenced the findings of two separate physicians (Dr. Shivers and Dr. Hostettler) who found Decedent to be competent during the pendency of the guardianship proceeding. Appellant claims that Appellee presented no evidence at summary judgment contradicting this testimony and presented no additional evidence demonstrating Decedent lacked testamentary capacity.

{¶ 18} In the instant matter, Appellant's initial summary judgment motion was not opposed by Appellee. Once it was denied, Appellee's response to Appellant's reconsideration motion was that the record as provided by Appellant himself showed that genuine issues of material fact existed because two physicians had found Decedent incompetent, suffering from moderately severe dementia, and Stark County had ordered a guardianship for Decedent. Appellee argued that, as Appellant had not met his burden to demonstrate that there was no genuine issue of material fact, Appellee was not required to further respond to the motion.

{¶ 19} Summary judgment may be appropriate when the nonmoving party does not produce evidence on any issue for which that party bears the burden of production at trial. Abram v. Greater Cleveland Regional Transit Auth., 8th Dist. No. 80127, 2002-Ohio-2622, 2002 WL 1041737 at ¶ 43. However, even when a summary judgment motion is unopposed, the motion and supporting evidence must show that no material fact in the case is in dispute before the court can grant the motion. Charles Gruenspan Co. v. Thompson, 8th Dist. No. 80748, 2003-Ohio-3641, 2003 WL 21545134. Therefore, the only relevant argument under this assignment is whether at the time the motion for summary judgment was filed, no material fact remained outstanding and Appellant was entitled by law to judgment.

{¶ 20} Although Appellee failed to respond to Appellant's motion for summary judgment, Appellant himself included contradictory evidence within his summary judgment motion. Appellant directed the trial court to the medical evaluations of both Drs. Shivers and Hostettler, who both concluded Decedent possessed the competency required to manage his own affairs. However, Appellant also referred to the expert evaluation and findings of Dr. Beason-Hazen filed in the Stark County Probate Court. Dr. Beason-Hazen concluded that Decedent was not capable of managing his finances properly. Based on this expert opinion, the Stark County Probate Court issued an entry dated February 4, 2014, finding Decedent to be incompetent. Both of these evidentiary items contradict the assertions made by Appellant in his own motion, demonstrating that there were genuine issues of material fact precluding summary judgment. Based on this, the trial court did not err in denying Appellant's motion for summary judgment and the later request for reconsideration of that denial.

{¶ 21} Additionally, we must note that denial of a motion for summary judgment generally cannot be reversed on appeal if the matter has gone to trial on the identical factual issues raised in the summary judgment motion. Continental Ins. Co. v. Whittington , 71 Ohio St.3d 150, 156, 642 N.E.2d 615 (1994). This rule prevents the fundamental unfairness inherent in overturning a fully litigated jury verdict in favor of a judgment rendered on an abbreviated presentation of evidence. Id.

{¶ 22} The Continental case applies unless denial of summary judgment must be reversed on the application of law, even if the case went to trial and a verdict was rendered. Continental at 158, 642 N.E.2d 615 ; The Promotion Co., Inc./Special Events Div. v. Sweeney , 150 Ohio App.3d 471, 2002-Ohio-6711, 782 N.E.2d 117, ¶ 15. Additionally, an interlocutory denial of summary judgment may be reviewed and reversed on appeal if the issues involved at the summary judgment stage were never actually litigated at the subsequent trial. Continental at 159, 642 N.E.2d 615. Therefore, we review this record not to second-guess the jury's decisions on factual issues, but to determine whether either of the two Continental exceptions to the general rule that failure to grant summary judgment is harmless even in an appropriate case when the matter is eventually tried.

{¶ 23} Appellee raises two main arguments opposing Appellant's summary judgment argument: (1) that any error in denying summary judgment by the trial court is moot because trial on the merits was held on the issues; and (2) Appellant failed to file a trial transcript of the proceedings necessary to make a determination whether the trial court's ruling was proper.

{¶ 24} We note that Appellant filed a partial transcript containing only Appellee's opening statement. Appellant claims that a full transcript of the trial proceedings is not necessary here because none of Appellant's assignments of error rely on the transcript. Appellant also contends because the denial of summary judgment constituted an error of law, pursuant to Continental and Sweeney , supra, the denial of summary judgment is reviewable and reversible.

{¶ 25} Appellant's motion for summary judgment filed with the trial court was based on five pieces of evidence: (1) the earlier determination of incompetency by the Stark County Probate Court which failed to state the reason for that finding; (2) medical evaluations contradicting the expert evaluation submitted to the Stark County Probate Court concluding that Decedent was incompetent; (3) the deposition of Attorney Clunk which indicated that he believed Decedent to be competent at the time Decedent executed the will in Clunk's office; (4) Appellee's deposition testimony that she had no personal knowledge of undue influence exerted on Decedent by Appellant; and (5) the trial court's prior ruling that in early 2014 Decedent was competent enough to form an intent to establish a new domicile. Appellant characterizes this probate court decision as an adjudication of Decedent's capacity, and additionally posits that Appellee's claim was barred by res judicata.

{¶ 26} While Appellant contends no questions of fact existed and the summary judgment motion was filed based purely on a matter of law, law which the court erred in applying and which would enable our review even after jury trial, it is clear from the face of Appellant's motion (even though unopposed by Appellee) that genuine factual issues existed regarding Decedent's competency. Reference to competing medical evaluations as well as to the finding of incompetency by the Stark County Probate Court reveal that the facts were far from settled and that the matter did not involve merely a legal determination. For this reason, the exception found in Continental that the court erred in applying the law to the undisputed facts does not apply in the case sub judice. Continental at 158, 642 N.E.2d 615. This matter clearly involved a factual dispute.

{¶ 27} The second Continental exception is where the issues involved in summary judgment were not actually litigated at trial. Id. at 159, 642 N.E.2d 615. Again, Appellant has failed to file a trial transcript as part of the record in this appeal. This failure precludes any evaluation of whether the factual issues presented in summary judgment were actually litigated at trial. It is Appellant's duty to provide all transcripts necessary for a full review of the issues presented on appeal.

The duty to provide a transcript for appellate review falls upon the appellant. This is necessarily so because an appellant bears the burden of showing error by reference to matters in the record. See State v. Skaggs (1978), 53 Ohio St.2d 162 [372 N.E.2d 1355]. This principle is recognized in App.R. 9(B), which provides, in part, that "* * * the appellant shall in writing order from the reporter a complete transcript or a transcript of such parts of the proceedings not already on file as he deems necessary for inclusion in the record * * *." When 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, as to those assigned errors, the court has no choice but to presume the validity of the lower court's proceedings, and affirm.

Knapp v. Edwards Laboratories , 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980).

{¶ 28} Without a transcript of the jury trial, we must presume the regularity of the proceedings below, including the presumption that the factual issues involved in summary judgment were fairly and adequately addressed at trial. The record contains nothing to indicate otherwise. Hence, as in Continental , any possible error resulting from the denial of Appellant's motion for summary judgment must be viewed as harmless in light of the subsequent jury trial adjudicating the same factual issues.

{¶ 29} It appears from the record and from a review of Appellant's motion for summary judgment that there were factual disputes concerning Decedent's competency. When there are genuine issues of material fact in dispute, summary judgment is not appropriate. The trial court was correct in overruling Appellant's motion for summary judgment.

{¶ 30} Based on the existence of disputed factual issues and the presumption that those factual issues were addressed at trial, Appellant's third and fourth assignments of error are without merit and are overruled.

ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT, AS A MATTER OF LAW, ERRED IN DENYING APPELLANT'S MOTION FOR A DIRECTED VERDICT FOLLOWING APPELLEE'S OPENING STATEMENT.

{¶ 31} Turning to his second assignment of error, Appellant contends the trial court erred in denying his motion for directed verdict proffered at the end of Appellee's opening statement. In support, Appellant did submit a partial transcript of Appellee's opening statement and argues that there was no mention of the term "testamentary capacity" and no reference to Decedent's lack of testamentary capacity on the day the 2013 will was executed.

{¶ 32} "A trial court should exercise great caution in sustaining a motion for a directed verdict on the opening statement of counsel." Brinkmoeller v. Wilson, 41 Ohio St.2d 223, 325 N.E.2d 233 (1975), syllabus. A trial court may grant a motion for a directed verdict made at the end of a party's opening statement only when the opening statement shows that the party will be unable to sustain its cause of action at trial. Parrish v. Jones, 138 Ohio St.3d 23, 2013-Ohio-5224, 3 N.E.3d 155, paragraph three of the syllabus.

{¶ 33} Once a jury has been convened and trial has started, a party may file a motion for a directed verdict. Civ.R. 50 governs a directed verdict:

(1) When made. A motion for a directed verdict may be made on the opening statement of the opponent, at the close of the opponent's evidence or at the close of all the evidence.
(2) When not granted. A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts.
(3) Grounds. A motion for a directed verdict shall state the specific grounds therefor.
(4) When granted on the evidence. When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue.
(5) Jury assent unnecessary. The order of the court granting a motion for a directed verdict is effective without any assent of the jury.

{¶ 34} Hence, a motion for a directed verdict can be made after an opponent's opening statement, at the close of opponent's evidence, and at the close of all of the evidence. Civ.R. 50(A)(1). When ruling on a motion for a directed verdict made after an opponent's opening statement, while the trial court is not required to consider the allegations contained within the pleadings, the court is permitted to consider them. Parrish at ¶ 23-24. The trial court must also liberally construe the opening statement in favor of the party against whom the motion is made. Brinkmoeller, syllabus.

{¶ 35} A motion for directed verdict presents a question of law, rather than fact. Goodyear Tire & Rubber Co. v. Aetna Cas. & Sur. Co., 95 Ohio St.3d 512, 2002-Ohio-2842, 769 N.E.2d 835, ¶ 4. On a question of law, we apply a de novo standard of review on appeal. Id.

{¶ 36} It is axiomatic that opening statements are not evidence and serve merely to present a preview of the party's claims and to assist the jury in following the evidence as it will be presented later in the trial. Parrish at ¶ 29. Moreover, an opening statement need not discuss every element of a claim. Id. at ¶ 31. The Supreme Court of Ohio has stated that only when the opening statement demonstrates that the party is completely unable to sustain a cause of action should the court take the matter away from the jury and grant the motion for a directed verdict. Id. at ¶ 32.

{¶ 37} In the instant case, when Appellant moved for a directed verdict, he argued at trial that the opening statement only referred to dementia and "that ain't the same as a lack of testamentary capacity." (2/13/17 Tr., p. 21.) Appellant argued that there was no supporting evidence proffered to prove a lack of testamentary capacity. Appellant contends that Appellee was alleging a fraud claim and never spoke the word "fraud" or established proximate cause between Appellant and fraud in the opening statement. Appellee's counsel argued that he chose not to use legal terminology in his opening statement to the jury but that he referenced elements that needed to be proven without going into exhaustive detail, reserving that for trial.

{¶ 38} A review of the opening statement reveals that Appellee's counsel provided a chronological recitation of the facts surrounding Decedent's living situation and his relationship with his children, beginning with the execution of the initial will, to the conduct of Decedent and Appellant at the time the 2013 will was executed. Appellee spoke to the jury about the transfer of the business from father to son, the subsequent financial difficulties of the business, and the evidence of large monetary withdrawals from Decedent's accounts that he could not account for. The opening statement also discussed constant requests for money from Decedent by Appellant. Appellee's counsel spoke about the medical evaluations which had determined Decedent was not competent to make financial decisions, and doctors' concerns about Decedent's management of money and the possibility that someone (Appellant) might be trying to influence Decedent. (2/13/17 Tr., p. 11.) Appellee's counsel also referred to the filing of a request for guardianship of Decedent signed by Appellant around the time the 2013 will was executed, as well as evidence that Appellant took Decedent to several banks to make withdrawals during that same time. (2/13/17 Tr., p. 13.) Thus, during the opening statement, Appellee's counsel introduced and outlined the issues of testamentary capacity and undue influence.

{¶ 39} After Appellant moved for a directed verdict, the trial court recessed to research the matter. The court ultimately concluded that the complaint and the opening statement, when construed in favor of Appellee, did not warrant a directed verdict. Appellant complains that in opposing the motion, Appellee cited to a case that mistakenly caused the court to believe that it was mandated to take into consideration the pleadings in the matter, instead of merely permitted to consider the pleadings in the discretion of the court. The record does not support any error or confusion on the part of the judge in this regard. Again, while the court is not compelled to take into consideration the allegations contained in the pleadings, it may do so if it chooses.

{¶ 40} Considering the standard under which a trial court may grant a directed verdict made after a party's opening statement and the record of the opening statement and the pleadings, when these are liberally construed in favor of Appellee, the trial court correctly denied Appellant's motion for a directed verdict. The trial court's decision in this regard is affirmed.

{¶ 41} Based on the foregoing, Appellant's assignments of error are without merit and the judgment of the trial court is affirmed.

Robb, P.J., concurs.

Donofrio, J., concurs.


text:
    STATE of Ohio, Plaintiff-Appellee v. Keith L. BLACK, Defendant-Appellant
    NO. 16 MA 0085
    Court of Appeals of Ohio, Seventh District, Mahoning County.
    Dated: March 29, 2018
    Atty. Paul J. Gains, Mahoning County Prosecutor, Atty. Ralph M. Rivera, Assistant Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503, For Plaintiff-Appellee.
    Atty. David L. Engler, 181 Elm Road, N.E., Warren, Ohio 44483, For Defendant-Appellant.
   JUDGES: Hon. Cheryl L. Waite, Hon. Gene Donofrio, Hon. Carol Ann Robb

OPINION

WAITE, J.

{¶ 1} Appellant, Keith L. Black, challenges his convictions in the Mahoning County Common Pleas Court for felonious assault and having a weapon while under disability. Appellant cites two issues on appeal. First, whether the trial court abused its discretion in overruling Appellant's objection to the admission of a photograph from Appellant's Facebook account into evidence. Second, whether Appellant's convictions for felonious assault and having a weapon while under disability were against the manifest weight of the evidence. For the reasons expressed below, we conclude that the trial court did not abuse its discretion in permitting the Facebook photograph to be admitted into evidence, as Appellant's own testimony satisfied the requirement of authentication for the Facebook post pursuant Evid.R. 901(A). Moreover, we conclude Appellant's convictions for felonious assault and having a weapon while under disability were supported by the manifest weight of the evidence. Appellant's assignments of error are without merit and the judgment of the trial court is affirmed in part. We must, however, remand the matter to the trial court for the limited purpose of entering a nunc pro tunc entry addressing the consecutive sentencing findings made at the sentencing hearing.

Factual and Procedural History

{¶ 2} In the early morning of August 14, 2015, Nicholas Duecaster ("Duecaster") drove to the Shell gas station on the corner of Midlothian Boulevard and South Avenue in Youngstown. While there, Duecaster saw Appellant. He knew Appellant because they had previously been incarcerated together.

{¶ 3} Appellant purchased cigars from the gas station and the two proceeded to modify them in order to smoke marijuana while in the parking lot of the gas station. Appellant requested a ride from Duecaster to Charlotte Hubbert's ("Hubbert") house on Lucius Avenue. Appellant and Duecaster both testified at trial and gave substantially similar testimony up to this point, when their descriptions of the events that followed differed.

{¶ 4} According to Duecaster, he drove Appellant to Hubbert's home, where Appellant exchanged crack cocaine received from Duecaster for pain medication from Hubbert. Duecaster remained outside in the car and testified that he became increasingly concerned when Appellant did not return for several minutes. Duecaster was uneasy because he had heard rumors that he was perceived as a "snitch." (2/22/16 Tr., p. 339.) Duecaster sent a text message "Black, north side" to his friend Andre Laury ("Laury") to indicate who he was with and where Appellant was from. (2/22/16 Tr., p. 355.) Laury was a clerk at the gas station and testified at trial that he saw Duecaster and Appellant together that day and also witnessed them depart in Duecaster's car. Duecaster was considering leaving Hubbert's residence when Appellant emerged from the house. Appellant asked Duecaster to take him to a house on Ravenwood Avenue. Duecaster complied and, on arriving at the Ravenwood address, Appellant exited the vehicle and asked Duecaster if he had change for $50. Duecaster reached for money in the center console of the car when Appellant produced a gun and demanded that Duecaster give him all his money. Duecaster attempted to drive away but Appellant shot him in his chest or upper abdomen. Duecaster testified that Appellant jumped on the car while he was driving away and clung to the passenger side door frame before either jumping or falling off the car a short distance down the road. Duecaster continued to drive away, hitting street signs, before the car came to a stop and Duecaster was able to call 911.

{¶ 5} According to Appellant, prior to leaving Hubbert's house on Lucius, Duecaster pulled a gun on Appellant and attempted to rob him. Appellant testified at trial that, in order to protect himself, he lunged at Duecaster and the two struggled over the gun as the car began to move, the gun fired, and Appellant jumped out of the car.

{¶ 6} Following jury trial on February 22, 2016, Appellant was found guilty of felonious assault in violation of R.C. 2903.11(A)(2), (D), a felony of the second degree with an accompanying firearm specification pursuant to R.C. 2941.145(A). He was also found guilty of having a weapon while under disability in violation of R.C. 2923.13(A)(3), (B), a felony of the third degree.

{¶ 7} Appellant was sentenced to a term of eight years of incarceration on the felonious assault count; three years of incarceration for the accompanying firearm specification; and 36 months for having a weapon while under disability. The trial court ordered each count to run consecutively to one another, for a 14-year total prison term. Appellant filed this timely appeal.

ASSIGNMENT OF ERROR NO. 1
THE COURT ERRED WHEN IT OVERRULED APPELLANT'S OBJECTION TO THE INTRODUCTION OF AN UNAUTHENTICATED FACEBOOK PHOTO.

{¶ 8} In his first assignment of error, Appellant contends the trial court erred in permitting a photograph from his Facebook social media account to be entered into evidence. Specifically, Appellant alleges the photograph was not properly identified or authenticated and that its probative value was substantially outweighed by the danger of unfair prejudice. The photograph is from Appellant's Facebook page, and depicts Appellant at a rap concert on the same day the incident at issue occurred. Appellant's hand is bandaged in the photograph.

{¶ 9} The trial court admitted Appellant's Facebook photograph into evidence over his objection that it was not properly authenticated. Appellant's counsel argued that the state received the photograph from the victim's sister before trial. The trial court, in overruling the objection, stated:

The Court finds the Defendant opened the door through his testimony about his physical condition. The State had no idea ahead of time as to what the Defendant would say on the stand. Furthermore, the picture goes to the credibility of the witness. Therefore, the Court will allow the State to use the picture.

(2/22/16 Tr., p. 570.)

{¶ 10} The decision whether to exclude or admit evidence is within the sound discretion of the trial court. State v. McGuire , 80 Ohio St.3d 390, 400-401, 686 N.E.2d 1112 (1997). A reviewing court will not reverse the trial court's decision absent an abuse of discretion.

{¶ 11} Evid.R. 901 provides for a liberal standard regarding the authentication of evidence. State v. Teague , 8th Dist. No. 90801, 2009-Ohio-129, 2009 WL 94830. Pursuant to Evid.R. 901(A), the requirement of authentication for evidence to be admissible "is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Moreover, testimony by a witness with knowledge, "that a matter is what it is claimed to be," is an acceptable method of authentication. Evid.R. 901(B)(1). See State v. Smith, 7th Dist. No. 05 JE 1, 2006-Ohio-4684, 2006 WL 2590518, ¶ 8.

{¶ 12} In the case sub judice, Appellant authenticated the Facebook photograph by his own testimony on cross-examination. Appellant testified on cross-examination about the extent of his injuries after the incident. Again, he claimed that Duecaster had brandished the gun and that the two began wrestling over it when it fired and Appellant jumped from a moving vehicle. He testified that his hands were severely injured with skin removed and that he had injured his leg and had a "serious limp." (2/22/16 Tr., p. 553.) He testified on cross, "I really-I was handicapped. I was handicapped." (2/22/16 Tr., p. 553.) He also indicated that, although he was not bedridden, he left the house only on rare occasions.

{¶ 13} When presented with the photograph on cross-examination, which was admitted into evidence by the state, Appellant testified that it was a picture of him and his friend, and that he was familiar with the photograph. He testified that it was taken on the same day of the incident at a rap concert in Cleveland. (2/22/16 Tr., pp. 571-572.)

{¶ 14} In his brief, Appellant complains that the state received the photograph from Duecaster's sister but that she was not called as a witness to authenticate the photograph. Evid.R. 901(B)(1) has been interpreted by courts to allow "any competent witness who has knowledge that a matter is what its proponent claims may testify to such pertinent facts, thereby establishing, in whole or in part, the foundation for identification." TPI Asset Mgt. v. Conrad-Eiford, 193 Ohio App.3d 38, 2011-Ohio-1405, 950 N.E.2d 1018, ¶ 15. In response, the state asserts that Appellant himself authenticated the photograph when he acknowledged the time and location where it was taken and who he was with. In State v. Gibson, 8th Dist. Nos. L-13-1223, L-13-1222, 2015-Ohio-1679, 2015 WL 1962850, the Eighth District concluded that "a combination of both personal knowledge of the appearance and substance of the public Facebook profile pages, taken in conjunction with the following direct and circumstantial evidence was sufficient to meet the threshold admissibility requirement set forth in Evid.R. 901(B)(1)." Id. at ¶ 49.

{¶ 15} Regarding Appellant's argument that this evidence unfairly prejudiced the jury, Appellant contends that the photograph along with the state's closing statement were prejudicial. The state noted during closing that Appellant "was hurt badly. You saw the pictures; you'll see them more. * * * He's hurt. He has to go home. He has to convalesce. He has to go to the rap concert." (2/22/16 Tr., p. 587.)

{¶ 16} The record on appeal does not include the photograph at issue. However, from Appellant's testimony on cross-examination and from Appellant's brief, there is no indication that the contents of the photo were gruesome, inflammatory or otherwise so prejudicial that it would unreasonably inflame the jury against Appellant. See State v. Tingler, 31 Ohio St.2d 100, 285 N.E.2d 710 (1972). The photograph was properly introduced into evidence and authenticated by Appellant's own testimony on cross-examination.

{¶ 17} Considering all of the evidence cited by the state at trial, including, but not limited to: Appellant's DNA found on the magazine clip in Duecaster's car; no sign of a disturbance outside of Hubbert's house on Lucius but evidence of damage to the street signs as well as roadside evidence at the Ravenwood location that is consistent with Duecaster's version of the event; and Appellant's decision to flee from the scene and evade police for six days after the incident; we conclude that the Facebook photograph was properly authenticated by Appellant during his cross-examination and was not unreasonably prejudicial and the trial court did not abuse its discretion in admitting this evidence.

{¶ 18} Appellant's first assignment of error is without merit and is overruled.

ASSIGNMENT OF ERROR NO. 2
THE GUILTY CONVICTION ENTERED BY THE COURT IS AGAINST THE WEIGHT OF THE EVIDENCE.

{¶ 19} In his second assignment of error, Appellant contends his conviction was against the manifest weight of the evidence.

{¶ 20} "Weight of the evidence concerns the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other." (Emphasis deleted.) State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). "Weight is not a question of mathematics, but depends on its effect in inducing belief." (Emphasis deleted.) Id.

{¶ 21} When reviewing a manifest weight of the evidence argument, a reviewing court must examine the entire record, consider the credibility of the witnesses and determine whether, in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. Id. at 387, 389, 678 N.E.2d 541. Only in exceptional circumstances will a conviction be reversed as against the manifest weight of the evidence. Id. This strict test for manifest weight acknowledges that credibility is generally the province of the factfinder who sits in the best position to accurately assess the credibility of the witnesses. State v. Hill , 75 Ohio St.3d 195, 204, 661 N.E.2d 1068 (1996) ; State v. DeHass , 10 Ohio St.2d 230, 231, 227 N.E.2d 212 (1967).

{¶ 22} In the instant case, the jury was presented with evidence from which there was a rational basis to conclude that Appellant knowingly shot Duecaster during the incident in question rather than accidentally or in self-defense as Appellant claimed during his direct examination.

{¶ 23} Both Duecaster and Appellant testified regarding how the incident transpired. Both acknowledged that they knew each other from a previous incarceration. Both acknowledged that they smoked marijuana together at the gas station before Duecaster gave Appellant a ride to Hubbert's home on Lucius. The difference in their stories regarding when the gun altercation occurred and who instigated it was a credibility issue for the jury to determine. Hill, supra. The Youngstown police officers testified that no evidence of an altercation was found at the Lucius address, but that evidence of damaged street signs and tire marks off the road were found at the Ravenwood address. This evidence was consistent with Duecaster's testimony. Further, Duecaster testified that he remained hospitalized for a month due to his injuries. Appellant claimed he had been "handicapped" by the altercation but, by his own testimony, he acknowledged that he attended a rap concert in Cleveland later that same day. There was also evidence presented by the state that Appellant's DNA was found on a magazine clip for a gun, although the actual weapon involved was never recovered.

{¶ 24} In determining whether a judgment is against the manifest weight of the evidence, an appellate court must "be guided by a presumption that the findings of the trier-of-fact were indeed correct." Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). The finder of fact is best able to "view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony." Id.

{¶ 25} Given the evidence in the record, this verdict was not against the manifest weight of the evidence. Appellant's second assignment of error is also without merit and is overruled.

{¶ 26} Although not presented as assigned error by Appellant or raised by the parties, a review of the record, including the sentencing hearing and judgment entry of sentence, does reveal a sentencing error in this case.

{¶ 27} As the trial court imposed consecutive sentences, it was required to make the findings enumerated in R.C. 2929.14(C)(4) at the sentencing hearing and must also incorporate those findings into the judgment entry of sentence. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 29. R.C. 2929.14(C)(4) provides:

If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public, and if the court also finds any of the following:
(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).

{¶ 28} At the sentencing hearing the trial court ordered Appellant's sentence to run consecutively and made the following findings:

Court also finds that consecutive sentences are not disproportionate to the seriousness of the offense and that the effect of this crime affected the families of the victim and the defendant.
Court finds that the defendant was on probation at the time that this offense occurred.
Court finds that defendant's criminal history demonstrates that consecutive sentences are necessary to protect the public of future crimes by this defendant.

(6/1/16 Sentencing Hrg. Tr., pp. 9-10.)

{¶ 29} Consequently, the trial court found R.C. 2929.12(C)(4)(a) and (b) were applicable, rendering consecutive sentences necessary. The trial court's findings at the sentencing hearing did comply with R.C. 2929.12(C)(4) and the mandates set forth in Bonnell, supra.

{¶ 30} However, as has been noted by this Court in the past, this trial court has once again failed to appropriately incorporate those findings in the written judgment entry of sentence. In the sentencing entry the trial court stated:

If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require offender to serve prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offenders [sic] conduct and to the danger the offender poses to the public, and if the court finds the following:
(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. (Emphasis deleted.)

(6/16/16 J.E., p. 2.)

{¶ 31} As we have noted previously, "magic" or "talismanic" words in the judgment entry of sentence are not required. The entry must contain, however, at least an indication that the trial court made the necessary findings. State v. Bellard, 7th Dist. No. 12-MA-97, 2013-Ohio-2956, 2013 WL 3462485, ¶ 17. The court need not give reasons for its findings, but must actually make those findings. At the sentencing hearing in this matter the court engaged in the requisite analysis pursuant to R.C. 2929.14(C)(4). However, the court's judgment entry contains only a verbatim recitation of the language of the statute. There is no indication that the trial court engaged in any findings utilizing the language of the statute as a guide. As we have noted in multiple occasions, quoting the statute in its entirety does not satisfy the requirements of Bonnell. State v. Reinthaler, 7th Dist. No. 16 MA 0170, 2017-Ohio-9374, 2017 WL 6813286, ¶ 17.

{¶ 32} A trial court's failure to incorporate the statutory findings into the sentencing entry after properly making those findings at the sentencing hearing does not render the sentence contrary to law; such a clerical mistake may be corrected by the court through a nunc pro tunc entry to reflect what actually occurred in open court at the sentencing hearing. Id. at ¶ 18.

{¶ 33} The record reveals that the findings of the trial court, pronounced orally during the hearing, demonstrate the court engaged in the required statutory analysis prior to imposing consecutive sentences. The trial court's failure to incorporate those findings into the written judgment entry amounts to a clerical error necessitating a nunc pro tunc entry to correctly align the language of the entry with the findings made at the sentencing hearing and in accordance with Bonnell and its progeny.

{¶ 34} Based on the foregoing, the trial court did not err in admitting the Facebook photograph into evidence as it was properly authenticated by Appellant's own testimony. Moreover, Appellant's conviction is not against the manifest weight of the evidence. However, the matter is remanded solely so that the trial court can enter a nunc pro tunc entry setting forth the applicable consecutive sentencing findings made at the sentencing hearing. Appellant's first and second assignments of error are without merit and are overruled. The judgment of the trial court is affirmed in part but remanded for the limited purpose of entering a nunc pro tunc entry addressing the consecutive sentencing findings made at the sentencing hearing according to law.

Robb, P.J., concurs.

Donofrio, J., concurs.