State v. GilreathState v. Gilreath
{¶ 1} Defendant, Gregory Gilreath, appeals from his conviction and sentence for disorderly conduct.
{¶ 2} As a result of allegedly “flipping off’ a seven-year-old neighbor boy by making an offensive gesture with his middle finger, defendant was cited by Tipp City police for disorderly cоnduct, in violation of
First Assignment of Error
{¶ 4} “The trial court erred in convicting appellant of disorderly conduct as such conviction was against the manifest weight of the evidence and not supported by sufficient evidеnce.”
{¶ 5} Defendant argues that his conviction for disorderly conduct is not supported by legally sufficient evidence and is against the manifest weight of the evidence because there is no evidence that defendant made an offensive gesture by sticking his middle finger uр at his seven-year-old neighbor, Nicholas Hoff.
{¶ 6} A sufficiency-of-the-evidence argument challenges whether the state has presented adequate evidence on each element of the offense to allow the case to go to the jury or sustain the verdict as a matter of law.
State v. Thompkins
(1997),
{¶ 7} “An appellate court’s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.”
{¶ 8} Defendant was convicted of violating
{¶ 9} Defendant’s seven-year-old neighbor, Nicholas Hoff, testified at trial that on April 13, 2006, while his grandfather was pushing him on the swing at Hoffs home located at 26 Apache Court in Tipp City, defendant stuck his middle finger up in the air and “flipped off’ Nicholas Hoff. Hoff put the middle finger of his right hand up to demonstrate for the court what he saw defendant do. Hoff was offended and upset by defendant’s gesture, and he immediately stopped swinging and told his grandfather what had happened.
{¶ 10} Hoffs grandfather, James Hardy, testified that Hoff suddenly stoрped swinging and with a startled look on his face said, “That man just stuck his middle finger up at me.” When Hardy moved to a location where he could observe defendant, he observed defendant starting to raise his fist up again, whereupon Hardy yelled at defendant not to stick his fingеr up or he would break
{¶ 11} Viewing this evidence in a light most favorable to the state, as we must, we conclude that a rational trier of facts could find beyond a reasonable that defendant recklessly caused annoyance or alarm to Nicholas Hoff by making an offensively coarse gesture. Defendant’s conviction is supported by legally sufficient evidence.
{¶ 12} A weight-of-the-evidence аrgument challenges the believability of the evidence and asks which of the competing inferences suggested by the evidence is more believable or persuasive.
State v. Hufnagel
(Sept. 6, 1996), Montgomery App. No. 15563,
{¶ 13} “The court, reviewing the entirе record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines 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.” Accord, State v. Thompkins, supra.
{¶ 14} The credibility of the witnesses and the weight to be given to their testimony are matters for the trier of facts to resolve.
State v. DeHass
(1967),
{¶ 15} “Because the factfinder * * * has the opportunity to see and hear the witnesses, the cautious exercise of the discretionary power of a court of appeals to find that a judgment is against the manifest weight of the evidence requires that substantial deference be extended to the factfinder’s determinations of credibility. The deсision whether, and to what extent, to credit the testimony of particular witnesses is within the peculiar competence of the factfinder, who has seen and heard the witness.” Id. at 4.
{¶ 16} This court will not substitute its judgment for that of the trier of facts on the issue of witness credibility unless it is patently apparent that the trier of facts lost its way in arriving at its verdict.
State v. Bradley
(Oct. 24, 1997), Champaign App. No. 97-CA-03,
{¶ 17} Defendant testified at trial that he did not raise his middle finger to Hoff and had not ever done that to any child. Defendant further testified that he was hanging up a bug zapper and some wind chimes and suggests that is what Nicholas Hoff actually saw. However, the trier of fact, the trial court here, did not lose its way simply because it chose to believe Hoff rather than defendant.
{¶ 19} The first assignment of error is overruled.
Second Assignment of Error
{¶ 20} “The trial court erred in not enforcing its order of separation of witnesses.”
{¶ 21} Defendant argues that the trial court abused its discretion by failing to enforce the separation of witnesses that the court had ordered per
{¶ 22} At thе outset, we note that defendant faded to raise this issue in the trial court by objecting to James Hardy’s testimony. Accordingly, for purposes of this appeal, defendant has waived all but plain error.
Cooper v. Dayton
(1997),
{¶ 23} The trial record shows that defendant requested a separation of witnesses and the trial court granted that request, stating that anyone who was there to testify who was not a representative of one the parties was to leave and go out into the hallway. However, the record does not reflect that James Hardy did, in fact, remain in the courtroom after he was ordered to leave, as defendant contends. Nevertheless, because the state has failed to file a brief on appeal, per App.R 18(C) we credit defendant’s contention that Hardy remained in the courtroom.
{¶ 24} Though defendant argues that he was prejudiced by Hardy’s disobedience of the separation order becаuse that allowed him to shape his testimony to support his grandson’s, defendant does not demonstrate how Hardy’s testimony,
{¶ 25} This assignment of error is overruled.
Third Assignment of Error
{¶ 26} “The trial court erred in sentencing the appellant without appellant being present.”
{¶ 27} The defendant’s trial before a magistrate was held on June 29, 2006. At the conclusion of the trial proceedings on that date, the magistrate announced that he would take the matter under advisement.
{¶ 28} On June 30, 2006, the magistrate filed a written decision. Upon the findings of fact that were made, the magistrate found defendant guilty of the offense of disorderly conduct and recommended a fine of $75, plus costs. The decision was adopted by the court on the same date.
{¶ 29}
{¶ 30}
{¶ 31} A defendant has a right to be present at every stage of a criminal trial, including the imposition of sentence. Section 10, Article I of the Ohio Constitution;
State v. Grisafulli
(1939),
{¶ 32} In the present case, the magistrate did not pronounce a recommended sentence when the defendant was before him on June 29, 2006. The recommended sentence was instead pronounced by the magistrate in the written decision that was filed and adopted by the court on June 30, 2006. Therefore, the court erred when it imposed the sentence as it did, the defendant not then being present before the court.
{¶ 33} The third assignment of error is sustained.
Fourth Assignment of Error
{¶ 34} “The trial court erred in not allowing appellant an opportunity to submit timely objections to the magistrate’s recommendations.”
{¶ 35} Defendant argues that he was not afforded an opportunity to timely file objections to the magistrate’s decision because neither he nor his counsel received that decision until more than 14 days after it was filed, when the period of time prescribed by
{¶ 36}
{¶ 37} An appellate court must presume the regularity and validity of the proceedings in the trial court below, absent a record that affirmatively demonstrates otherwise.
Knapp v. Edwards Laboratories
(1980),
{¶ 39} This assignment of error is overruled.
{¶ 40} Having sustained defendant’s third assignment of error, we now vacate the sentence imposed by the trial court and remand this cause to that court for resentencing. In all other respects, the trial court’s judgment is affirmed.
Judgment accordingly.