STATE OF OHIO, PLAINTIFF-APPELLEE, v. JOSEPH SEAUNIER, DEFENDANT-APPELLANT.
CASE NO. 14-10-12
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY
February 14, 2011
[Cite as State v. Seaunier, 2011-Ohio-658.]
Appeal from Marysville Municipal Court, Trial Court No. CRB 0901301. Judgment Affirmed.
Alison Boggs for Appellant
Victoria Stone-Moledor for Appellee
SHAW, J.
{¶1} Defendant-appellant, Joseph Seaunier (Seaunier), appeals the March 5, 2010, judgment of the Marysville Municipal Court, finding him guilty of one count of aggravated menacing in violation of
{¶2} On November 20, 2009, officers with the Marysville Police Department responded to a call at a residence on East Fourth Street regarding a woman being threatened by a man with a knife. While en route, Officer Dennis Flanagan was advised that the man had discarded the knife but was now chasing a woman around a parked car. When officers arrived, they found Seaunier‘s sister, Brandi Greer, outside of the home. Greer, who was crying and upset, informed the officers that she had been attacked by Seaunier, who was now inside his home. Officers approached the home, and Seaunier came out onto the front porch. After speaking with some of the people on the scene, including Seaunier, who appeared to be under the influence of alcohol and/or drugs, the officers arrested Seaunier and removed him from the scene. Once Seaunier was removed from the scene, Greer stated that she now felt safe and the officers re-interviewed her as well as a number of other witnesses. Greer also provided a written statement to Off. Flanagan, reaffirming the verbal statement she had given him.
{¶3} Seaunier was subsequently charged with aggravated menacing, a misdemeanor of the first degree, in violation of
For example, where a Defendant owes fines of $600.00 and court costs of $210.00, and a $600.00 payment is made before Defendant has served out twenty-four hour days in jail, $210.00
of the $600.00 payment would be applied to pay court costs and the remaining $390.00 would be applied to the $600.00 fine. A fine of $210.00 remains. Defendant would have to serve out the remaining $210.00 fine at $50.00 per day, i.e., serve an additional five, twenty-four hour days. (There is no credit for a partial day - a time less than twenty-four hours.)
The return filed on Seaunier‘s commitment paper for his ninety-day sentence reflects that he was incarcerated at the jail from March 5, 2010, until May 15, 2010, seventy-one days, and that he received work days credit1 for nineteen days for a total of ninety days. The return filed on Seaunier‘s commitment paper for his fines reflects that he was incarcerated at the jail from May 15, 2010, until May 27, 2010, a total of twelve days with a credit of $50.00 per day, for a total of $600.00.
{¶4} During his incarceration, Seaunier sent two letters to the court in March and April, respectively, requesting that he be released early. On May 7, 2010, an attorney from the Union County Public Defender‘s Office entered her appearance on behalf of Seaunier and subsequently filed a notice of appeal of Seaunier‘s conviction and a request to file a delayed appeal due to the trial court‘s failure to inform Seaunier at the time of his sentencing that he had a right to a direct appeal. This Court granted the request to file a delayed appeal, and Seaunier now asserts four assignments of error for our review.
ASSIGNMENT OF ERROR I
THERE WAS INSUFFICIENT EVIDENCE FOR THE TRIAL COURT TO FIND DEFENDANT GUILTY OF AGGRAVATED MENACING.
ASSIGNMENT OF ERROR II
THE TRIAL COURT‘S DECISION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED WHEN IT FAILED TO ADVISE DEFENDANT OF HIS RIGHT TO APPEAL THE OUTCOME OF THE BENCH TRIAL AND REMAINING PROCEEDINGS AFTER HE WAS SENTENCED.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT‘S POLICY OF INCREASING DEFENDANT‘S JAIL SENTENCE THROUGH THE COMMITMENT PAPERWORK FOR THE NON-PAYMENT OF FINES VIOLATED DEFENDANT‘S DUE PROCESS RIGHTS AND IS A VIOLATION OF OHIO REVISED CODE SECTION 2947.14.
{¶5} This Court‘s analysis of the issues before it begins by noting that the appellee, the State of Ohio, failed to file an appellate brief in this matter. Appellate Rule 18(C) outlines the consequences of the failure of an appellee to file a brief:
If an appellee fails to file the appellee‘s brief within the time provided by this rule, or within the time as extended, * * * the court may accept the appellant‘s statement of the facts and issues as correct and reverse the judgment if appellant‘s brief reasonably appears to sustain such action.
First and Second Assignments of Error
{¶6} Seaunier asserts in his first assignment of error that the trial court erred in finding him guilty of aggravated menacing because the evidence was insufficient to support such a finding. In his second assignment of error, Seaunier maintains that his conviction was against the manifest weight of the evidence.
{¶7} Reviewing a challenge to the sufficiency of the evidence requires this Court to examine the evidence in the light most favorable to the prosecution. The Ohio Supreme Court has set forth the sufficiency of the evidence test as follows:
[A]n appellate court‘s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial and 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} Unlike our review of the sufficiency of the evidence, an appellate court‘s function when reviewing the weight of the evidence is to determine whether the greater amount of credible evidence supports the verdict. State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541. In reviewing whether the trial court‘s judgment was against the weight of the evidence, the appellate court sits as a thirteenth juror and examines the conflicting testimony. Id. In doing so, this Court must review the entire record, weigh the evidence and all of the reasonable inferences, consider the credibility of witnesses, and determine whether in resolving conflicts in the evidence, the factfinder 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. Andrews, 3rd Dist. No. 1-05-70, 2006-Ohio-3764, citing State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717; Thompkins, 78 Ohio St.3d at 387.
{¶9} Here, the State had to prove that Seaunier knowingly caused another to believe that he would cause serious physical harm to the person or property of the other person, the other person‘s unborn, or a member of the other person‘s immediate family. See
{¶10} Greer was also called to testify on behalf of the State. During her testimony, she stated that she went to Seaunier‘s home that night because he had called and told her that he was going to kill himself. She further testified that when she walked into Seaunier‘s home, he was seated on the couch with a knife in his hand. She began screaming at him and crying, and he stood up and threatened to kill himself. Greer testified that she grabbed Seaunier‘s wrists and yanked him and that during this interaction, Seaunier‘s hand smacked [her] up side [her] face[.] (Trial Tr., 3/5/10, at p. 16.) Greer also testified that the only threat that Seaunier made was that he was going to kill himself and that she called 9-1-1 because she was scared for his life. (id. at 17.) However, Greer also admitted that she told the officers who responded that night that Seaunier had pulled a knife on [her]. (Emphasis added.) (id. at 18.)
{¶11} The State also introduced a recording of the 9-1-1 call that Greer placed that night. This recording reveals that Greer was clearly upset during much
{¶12} After playing the recording, the State asked further questions of Greer regarding the 9-1-1 call. However, a portion of this examination is absent from the transcript because the recording equipment in the courtroom was turned off for an unknown amount of time and for unknown reasons.2 Nevertheless, the
{¶13} In light of all this evidence and construing it in a light most favorable to the prosecution, we find that there was sufficient evidence before the trial court to find that Seaunier knowingly caused another to believe that he would cause serious physical harm to the person. Further, we do not conclude that Seaunier‘s conviction was against the manifest weight of the evidence. Although Greer‘s testimony at trial was that the only concern she had was for her brother‘s life because he was threatening to kill himself and that he never threatened her that night, the testimony of Off. Flanagan and, more importantly, the 9-1-1 recording of Greer‘s call for police assistance on that night reflect that Greer was attacked by her brother and believed that he would cause serious physical harm to her when he came after her with a butcher knife. Moreover, even Greer‘s testimony at trial establishes that Seaunier knowingly caused her to believe that he would cause serious physical harm to a member of her family, namely himself, as he is her brother. For all of these reasons, the first and second assignments of error are overruled.
Third Assignment of Error
{¶14} In Seaunier‘s third assignment of error, he maintains that the trial court erred in failing to advise him of his right to appeal pursuant to Criminal Rule
Fourth Assignment of Error
{¶15} Seaunier asserts in his fourth assignment of error that the trial court erred when it issued commitment papers to the jail ordering Seaunier‘s confinement for the non-payment of fines without first affording him the due
{¶16} More specifically, the court must determine that the offender is able, at that time, to pay the fine but refuses to do so.
{¶17} In the case sub judice, the trial court failed to follow any of these mandates before ordering Seaunier‘s commitment for the non-payment of fines. Instead, the trial court found Seaunier guilty and proceeded to sentencing, which included ordering him to pay a fine of $600.00. The judgment entry of the court, which is clearly a form entry, contains an x next to the following choice: After trial the Court finds Defendant GUILTY and able to pay fines and costs[.] However, there are no findings of fact to support the court‘s determination that Seaunier was able to pay, and, in fact, the record is completely devoid of any information regarding Seaunier‘s income, assets, debts, or ability to pay. Nothing regarding any of this information was discussed or even mentioned at the time of sentencing. Notably, the only information contained in the record regarding Seaunier‘s financial status at the time the trial court ordered his confinement for fines was an entry of appearance by the Union County Public Defender‘s Office on November 25, 2009, wherein that office noted that Seaunier was currently indigent pursuant to the laws of the State of Ohio and eligible for indigent representation. In addition to a lack of evidence as to Seaunier‘s ability to pay, the record is devoid of any evidence that Seaunier had the ability to pay his fine at that time but refused to do so.
{¶18} It is axiomatic that ‘[i]n Ohio a court speaks through its journal.’ State v. King, 70 Ohio St.3d 158, 162, 1994-Ohio-412, 637 N.E.2d 903, quoting State ex rel. Worcester v. Donnellon (1990), 49 Ohio St.3d 117, 118, 551 N.E.2d 183. Not only did the trial court fail to conduct the requisite hearing, to afford Seaunier the opportunity to present evidence regarding his ability to pay the fine, and to issue findings of fact that indicated Seaunier‘s income, assets, debts, and ability to pay, the trial court also failed to journalize its decision to confine Seaunier for his fines. Rather, the trial court issued commitment papers to the jail to inform the jail officials that Seaunier was to remain in their custody until his fine of $600.00 was paid or otherwise legally discharged. Further, the notification provided by the trial court to Seaunier, the prosecutor, the jail and others concerning serving out of fines in jail contained an explanation that any amount of money deposited on Seaunier‘s behalf would first be applied toward court costs and actually provided an example that, in essence, informed Seaunier that he would remain in jail until his fines and court costs were paid at a rate of credit of $50.00 for each day spent in jail. Unfortunately, none of this was set forth in the actual judgment entry of sentence.
{¶19} More importantly, however, a court cannot incarcerate a person for non-payment of court costs, either directly or indirectly. See Strattman v. Studt (1969), 20 Ohio St.2d 95, paragraphs six and seven of the syllabus, 253 N.E.2d 749 (holding that the obligation to pay court costs, in both civil and criminal
{¶20} Nevertheless, despite these concerns, the record demonstrates that Seaunier has already completed his term of incarceration for the non-payment of fines. Thus, as applied to this case, the assignment of error is moot as there is no judgment to reverse and no remedy to otherwise provide in these proceedings. Accordingly, for this reason only, the fourth assignment of error is overruled, and the judgment of the Marysville Municipal Court is affirmed.
Judgment Affirmed
PRESTON and WILLAMOWSKI, J.J., concur.