State v. Dendinger , 2019 Ohio 2158 ( 2019 )

[Cite as State v. Dendinger, 2019-Ohio-2158.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
STATE OF OHIO,
CASE NO. 13-18-38
PLAINTIFF-APPELLEE,
v.
RHONDA M. DENDINGER, OPINION
DEFENDANT-APPELLANT.
Appeal from Tiffin-Fostoria Municipal Court
Trial Court No. CRB 1800979
Judgment Affirmed
Date of Decision: June 3, 2019
APPEARANCES:
Edwin M. Bibler for Appellant
Richard H. Palau for Appellee
Case No. 13-18-38
WILLAMOWSKI, J.
{¶1} Defendant-appellant Rhonda M. Dendinger (“Dendinger”) appeals the
judgment of the Tiffin-Fostoria Municipal Court, alleging that her conviction was
not supported by sufficient evidence and was against the manifest weight of the
evidence. Further, Dendinger claims that trial judge was biased against her attorney.
For the reasons set forth below, the judgment of the trial court is affirmed.
Facts and Procedural History
{¶2} Nathan Miller (“Miller”) is married to Dendinger’s daughter, Kelsey
Dendinger (“Kelsey”). Tr. 11, 24. At the time of the incident forming the basis of
this case, Miller and Kelsey were in the midst of a divorce proceeding, but both of
them still lived in their marital residence. Tr. 12-13, 25. During this time, Kelsey
would sleep in a bedroom while Miller would sleep on the couch. Tr. 13. Kelsey
had been locking her bedroom door, alleging that Miller had been recording her
while she slept. Tr. 13. Miller stated, at trial, that he needed access to the bedroom
to shower, obtain his clothes, and care for his infant son. Tr. 14, 16-17. At some
point, Kelsey left the key to the bedroom in the door. Tr. 14. Miller took the key
and kept it, “so that nobody could be locked out of the bedroom.” Tr. 9.
{¶3} On July 31, 2018, Kelsey called Dendinger and asked her to come to
the house, saying, at trial, that she wanted her mother’s “support.” Tr. 25-26.
Dendinger then drove to her daughter’s house. Tr. 31. When she arrived, Dendinger
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went inside the house, spoke to her daughter about the key, and then approached
Miller. Tr. 31. Dendinger said, “Nate, just give her back the key.” Tr. 32. After
Miller denied having the key, Dendinger testified that she “reached to the outer edge
of the lower pocket [of Miller’s shorts] * * * to see if the key was in there.” Tr. 32.
Miller told Dendinger not to touch him. Tr. 10, 33. At this point, Miller and Kelsey
began to have an argument, and Dendinger left the room to get Miller and Kelsey’s
infant son. Tr. 33.
{¶4} Miller testified that Dendinger returned and “started * * * patting [his]
pockets, trying to get in [his] pockets again.” Tr. 11. Miller then went outside and
called the police. Tr. 11. Deputy Troy Callahan (“Deputy Callahan”) responded to
this call. Tr. 19. After speaking with Miller, Kelsey, and Dendinger, he issued a
citation to Dendinger for disorderly conduct in violation of R.C. 2917.11(A)(5).
Doc. 1. Tr. 19. This offense is a minor misdemeanor. Doc. 1.
{¶5} A bench trial was held on October 29, 2018. Tr. 1. Miller, Kelsey,
Dendinger, and Deputy Callahan testified before the trial court. At the close of the
State’s case-in-chief, the Defense made a Crim.R. 29 motion, alleging that the State
did not produce sufficient evidence to support a conviction. Tr. 22. The trial court
denied this motion. Tr. 24. During closing arguments, the Defense argued that
Dendinger’s actions were not physically offensive. Tr. 40-41. In rebuttal, the
prosecutor stated, “I’ll keep it short Your Honor. Just the fact that the man’s house
is not his castle, surely his pants are his castle.” Tr. 41. The trial court then found
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Dendinger guilty and ordered her to pay a fine of $100.00 plus court costs. Tr. 43-
44.
{¶6} Appellant filed her notice of appeal on November 26, 2018. Doc. 18.
On appeal, appellant raises the following assignments of error:
First Assignment of Error
There was insufficient evidence to convict the defendant-
appellant of Disorderly Conduct pursuant to R.C. 2917.11(A)(5),
as the State of Ohio failed to prove beyond a reasonable doubt
that the defendant-appellant acted recklessly, that her conduct
was physically offensive and that she had no lawful reasonable
purpose.
Second Assignment of Error
The trial court erred and the defendant-appellant’s conviction of
disorderly conduct was against the manifest weight of the
evidence as the State of Ohio failed to prove beyond a reasonable
doubt that the defendant-appellant acted recklessly, that her
conduct was physically offensive and that she had no lawful and
reasonable purpose.
Third Assignment of Error
The court clearly showed bias toward Defendant-Appellant’s
attorney by (1) inappropriate comments made during trial and (2)
directing the court’s closing colloquy directly to the Attorney for
the defendant, showing the Defendant-Appellant received an
unfair trial.
First Assignment of Error
{¶7} Dendinger argues that her conviction for disorderly conduct is not
supported by sufficient evidence because (1) her actions did not “recklessly cause
inconvenience, annoyance, or alarm to another” and (2) her actions did not “create
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a condition that is physically offensive to persons or that presents a risk of physical
harm.” R.C. 2917.11(A)(5).
Legal Standard
{¶8} A challenge to the sufficiency of the evidence supporting a conviction
“is a question of law and a ‘test of adequacy rather than credibility or weight of the
evidence.’” State v. Beaver, 3d Dist. Marion No. 9-17-37, 2018-Ohio-2438, ¶ 40,
quoting State v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19. “The
sufficiency-of-the-evidence analysis addresses the question of whether adequate
evidence was produced for the case to be considered by the trier of fact and, thus,
whether the evidence was ‘legally sufficient to support the verdict * * *.’” State v.
Luebrecht, 3d Dist. Putnam No. 12-18-02, 2019-Ohio-1573, ¶ 36, quoting State v.
Worthington, 3d Dist. Hardin No. 6-15-04, 2016-Ohio-530, ¶ 12. On appeal, the
applicable standard
is whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found that
the essential elements of the crime were proven beyond a
reasonable doubt.
State v. Brown, 3d Dist. Hancock No. 5-17-19, 2018-Ohio-899, ¶ 8, quoting State
v. Plott, 2017-Ohio-38, 80 N.E.3d 1108, ¶ 73 (3d Dist.).
{¶9} In order to prove a defendant committed the offense of disorderly
conduct in violation of R.C. 2917.11(A)(5), the State must establish that the
defendant “[1] recklessly [2] cause[d] inconvenience, annoyance, or alarm to
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another by * * * [3] [c]reating a condition that is physically offensive to persons or
that presents a risk of physical harm to persons or property, by any act that serves
no lawful and reasonable purpose of the offender. R.C. 2917.11(A)(5). “A person
acts recklessly when, with heedless indifference to the consequences, the person
disregards a substantial and unjustifiable risk that the person’s conduct is likely to
cause a certain result or is likely to be of a certain nature.” R.C. 2901.22(C).
Legal Analysis
{¶10} As to the first element, Miller’s testimony provides some evidence that
Dendinger acted with the requisite mental state. On appeal, Dendinger argues that
the trial court erred by applying an objective, reasonable person standard to her
conduct and asserts that she “had no advanced inkling that her conduct could
possibly cause Mr. Miller inconvenience, annoyance or alarm.” Appellant’s Brief,
7-8. For two reasons, we find this argument to be without merit. First, Ohio case
law indicates that an objective, reasonable person standard is applicable in this
analysis. See State v. Glenn, 1st Dist. Hamilton No. C-030356, 2004-Ohio-1489, ¶
25; State v. Blair, 2d Dist. Montgomery No. 24784, 2012-Ohio-1847, ¶ 9; State v.
Lamm, 80 Ohio App. 3d 510, 609 N.E.2d 1286 (4th Dist.); Warrensville Heights v.
Brown, 8th Dist. Cuyahoga No. 89346, 2008-Ohio-126, ¶ 14; State v. Wiley, 11th
Dist. Portage No. 2013-P-0067, 2014-Ohio-5766, ¶ 19-20.1 Second, the evidence
1
In Glenn, Blair, Brown, and Wiley, the defendant was charged with a violation of R.C. 2917.11(A)(2).
Glenn, supra, at ¶ 24. However, the element of recklessly causing inconvenience, annoyance, or alarm is
common to all of the offenses listed under R.C. 2917.11(A). Id.
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in the record indicates that Dendinger was aware that her actions were likely to
cause Miller to be inconvenienced or annoyed.
{¶11} At trial, Miller testified that Dendinger reached into his pockets two
times. Tr. 10-11. He told her to stop the first time she reached inside his pockets,
but, five minutes later, she reached inside his pockets again. Tr. 10-11. Thus,
regardless of whether Dendinger should have been aware that reaching into her son-
in-law’s pockets was inappropriate before she did so the first time, she was aware
that such conduct was inappropriate before she reached into his pockets the second
time because Miller had previously told her not to do this. Tr. 10-11. Based on this
testimony, there was some evidence that Dendinger reached into Miller’s pockets
with “heedless indifference to the consequences” of this action. R.C. 2901.22(C).
See State v. Bailey, 1st Dist. Hamilton No. C-010641, 2002-Ohio-3133, ¶ 31.2
{¶12} As to the second element, Miller’s testimony also indicates that
Dendinger engaged in behavior that could cause a reasonable person to be
inconvenienced or annoyed. Miller testified that, in addition to having sensitive
areas of his body touched, Dendinger was also pushing down in his pockets so hard
that his shorts were sliding down his legs so that his boxers were visible. Tr. 10-11.
He also stated that he had told Dendinger to stop reaching into his pockets more
2
In this case, the defendant was charged with persistent disorderly conduct. Bailey, supra, at ¶ 38. However,
Bailey remains instructive as the elements of recklessness, inconvenience and annoyance, and physical
offensiveness are the same.
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than once and “tried to get away from her.” Tr. 10. He testified that he then left his
house to avoid Dendinger and called the police. Tr. 10-11.
{¶13} As to the third element, his statements also indicate that these actions
were “physically offensive” as his mother-in-law was, according to his testimony,
reaching into his pockets and feeling around sensitive areas. He further said that
this gave him an “[e]xtremely uncomfortable feeling,” explaining that “she was
reaching in my pockets on the side. She was touching me where I don’t want to be
touched. And she felt right by my crotch area * * *.” Tr. 10. See Village of New
Lebanon v. Cobb, 2d Dist. Montgomery No. 11026, 1989 WL 52887, *3 (May 19,
1989).
{¶14} Further, Miller’s testimony also indicates that Dendinger was reaching
into his pockets while he was standing in his own house to obtain a key that went to
a bedroom door in his house. Kelsey’s invitation authorized Dendinger to be in
Miller and Kelsey’s house. See State v. Berry, 3d Dist. Hancock No. 5-16-16, 2017-
Ohio-1490, ¶ 22-23. However, the fact that Kelsey invited her mother to intervene
in a marital dispute did not give Dendinger the right to reach into Miller’s pockets.
Under these circumstances, a reasonable trier of fact could determine that
Dendinger’s actions did not further a lawful or reasonable purpose.
{¶15} Thus, Miller’s testimony, if believed, sufficiently substantiates the
essential elements for the offense of disorderly conduct in violation of R.C.
2917.11(A)(5). After reviewing the evidence in a light most favorable to the
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prosecution, we conclude that the State introduced sufficient evidence from which
a reasonable trier of fact could find the defendant to be guilty of the minor
misdemeanor of disorderly conduct. For this reason, Dendinger’s first assignment
of error is overruled.
Second Assignment of Error
{¶16} Dendinger reiterates her arguments from her first assignment of error
to assert that her conviction is against the manifest weight of the evidence.
Legal Standard
{¶17} In a manifest weight analysis, “an appellate court’s function * * * is to
determine whether the greater amount of credible evidence supports the verdict.”
Plott, supra, at ¶ 73. Thus, “the appellate court sits as a ‘thirteenth juror’ * * *.”
State v. Davis, 3d Dist. Seneca No. 13-16-30, 2017-Ohio-2916, ¶ 17, quoting State
v. Thompkins, 78 Ohio St. 3d 380, 387, 678 N.E.2d 541 (1997). Appellate courts
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. Brentlinger, 2017-Ohio-2588, 90 N.E.3d 200, ¶ 36 (3d Dist.), quoting
Thompkins at 387.
{¶18} “A reviewing court must, however, allow the trier of fact appropriate
discretion on matters relating to the weight of the evidence and the credibility of the
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witnesses.” State v. Sullivan, 2017-Ohio-8937, 102 N.E.3d 86, ¶ 38 (3d Dist.),
quoting State v. Coleman, 3d Dist. Allen No. 1-13-53, 2014-Ohio-5320, ¶ 7. “[I]t
is well established that the * * * credibility of the witnesses [is] primarily a matter
for the trier of fact.” State v. Gervin, 2016-Ohio-8399, 79 N.E.3d 59, ¶ 142 (3d
Dist.), quoting State v. Clark, 101 Ohio App. 3d 389, 409, 655 N.E.2d 795 (8th Dist.
1995). “Only in exceptional cases, where the evidence ‘weighs heavily against the
conviction,’ should an appellate court overturn the trial court’s judgment.” State v.
Little, 2016-Ohio-8398, 78 N.E.3d 323, ¶ 27 (3d Dist.), quoting State v. Hunter, 131
Ohio St. 3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 119.
Legal Analysis
{¶19} We herein reincorporate the evidence examined under the first
assignment of error and proceed to consider the evidence presented by the Defense.
In this case, Dendinger testified about the incident, saying:
I’m standing beside him, and all I did was reach over to the
bottom part of the pant to—and like felt like this to see if I could
feel for the key. It was supposed to be in the short pocket, in the
outer pocket. At that time he’s like—don’t touch my pocket,
don’t touch my pocket, and pulled away.
Tr. 33. However, she stated that she “did not at any time put [her] hand inside his
pocket.” Tr. 34. She then added that she “never, at any time, got near [Miller’s]
crotch area or anything.” Tr. 35. On cross-examination, the prosecutor asked
Dendinger what gave her the right to try to take this key. She stated: “I was trying
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to prevent further problems with [Kelsey] and her husband.” Tr. 37. She further
admitted that she did not live at Miller’s house. Tr. 36.
{¶20} Deputy Callahan testified that Dendinger, on the day of the incident,
indicated that “[s]he didn’t hurt him * * *. She was just trying to get the key.”
Dendinger also told Callahan that “she had grabbed [Miller’s] pants pockets.”
When asked whether Miller had indicated that Dendinger had reached into his
pockets, Callahan stated: “I didn’t write it in my report, so therefore I’d say no.” Tr.
21. Kelsey testified that she had invited her mother to come to the house because
she “wanted her to be there for support and witness.” Tr. 25. Kelsey, however, did
not see her mother patting Miller’s pants as Kelsey stated that she was in the
bedroom at the time of the incident. Tr. 26, 28-29.
{¶21} In this case, the testimony of Dendinger and Miller are in conflict.
However, “[t]he choice between credible witnesses and their conflicting testimony
rests solely with the finder of fact and an appellate court may not substitute its own
judgment for that of the finder of fact.” State v. Awan, 22 Ohio St. 3d 120, 124, 489
N.E.2d 277 (1986). After reviewing the record, we conclude that this is not the
exceptional case where the evidence weighs heavily against Dendinger’s
conviction. Thus, this conviction is not against the manifest weight of the evidence.
For this reason, Dendinger’s second assignment of error is overruled.
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Third Assignment of Error
{¶22} Dendinger argues that the trial judge was biased against the Defense
and that she did not, therefore, receive a fair trial.
Legal Standard
{¶23} “[A] criminal trial before a biased judge is fundamentally unfair and
denies a defendant due process of law.” In re Disqualification of Zmuda, 149 Ohio
St.3d 1241, 2017-Ohio-317, 75 N.E.3d 1255, ¶ 11, quoting State v. LaMar, 95 Ohio
St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 34.
Judicial bias has been described by the Supreme Court of Ohio as
“a hostile feeling or spirit of ill will or undue friendship or
favoritism toward one of the litigants or his attorney, with the
formation of a fixed anticipatory judgment on the part of the
judge, as contradistinguished from an open state of mind which
will be governed by the law and the facts.” State ex rel. Pratt v.
Weygandt, 164 Ohio St. 463 [132 N.E.2d 191] (1956), paragraph
four of the syllabus. However, “[a] judge is presumed to follow the
law and not to be biased, and the appearance of bias or prejudice
must be compelling to overcome these presumptions.” In re
Disqualification of George, 100 Ohio St. 3d 1241, 2003-Ohio-5489,
[798 N.E.2d 23] ¶ 5. (Citations omitted.)
State v. Wieser, 3d Dist. Allen No. 1-18-15, 2018-Ohio-3619, ¶ 23. “Judicial bias
exists if it is directed toward counsel. Indeed, ‘the judge who is so hostile to a
lawyer as to doom the client to defeat deprives the client of the right to an impartial
tribunal.’” State v. Dean, 127 Ohio St. 3d 140, 2010-Ohio-5070, 937 N.E.2d 97, ¶
65, quoting Walberg v. Israel, 766 F.2d 1071, 1077 (C.A.7, 1985).
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{¶24} However, “[s]harp words spoken by a trial court to counsel do not by
themselves establish impermissible bias. There is a ‘modicum of quick temper that
must be allowed even judges.’” State v. Sanders, 92 Ohio St. 3d 245, 278, 750
N.E.2d 90 (2001), quoting United States v. Donato, 99 F.3d 426, 434 (C.A.D.C.
1996), quoting Offutt v. United States, 348 U.S. 11, 17, 75 S. Ct. 11, 99 L. Ed. 11
(1954). Even a “rebuke” issued by a trial judge from the bench is not necessarily
evidence of judicial bias. Id.
Legal Analysis
{¶25} On appeal, Dendinger identifies two instances that allegedly indicate
that the trial judge was biased against her attorney, Rocky Ratliff (“Ratliff”). First,
Dendinger points to the following colloquy:
[Prosecutor]: I’m gonna object as to leading again.
[Trial Judge]: Is this like Marion County direct examination?
Just kind of curious—
[Ratliff]: I don’t see the problem as to asking her—
[Trial Judge]: Objection Sustained.
Tr. 26-27. During the course of the trial, the prosecution objected to the Defense’s
use of leading questions at least four times. Tr. 26, 27, 33. After one of these
objections, the trial judge advised defense counsel to “be careful about your
examination.” Tr. 33. In these comments, the trial court seems to be addressing
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defense counsel’s repeated use of leading questions. However, these statements do
not indicate that the trial judge was hostile to the interests of the Defense.
{¶26} Second, the trial judge, at the beginning of issuing his ruling, made the
following statement:
All right. Mr. Ratliff, I’m gonna address most of my comments
to you, because I think you’re the one that I want to make sure
that I get the point across to.
When we have this series of events that we’ve dealt with in the
past, I try to be very sensitive when couples are going through
divorce proceedings, because I realize over the years that there
can be a lot of shenanigans that go on with people doing all kinds
of things. In the 16 years that I’ve been a Judge, and in the 15
years as a prosecutor before that, I’ve seen a lot of—what I would
consider to be reasonable people doing unreasonable things * * *.
Tr. 41-42. In context, the trial judge, in these comments, appears to be explaining
his rationale to the defense counsel, who was not from the county and was possibly
unfamiliar with the trial judge’s practices. Defense counsel would be the person
who would need to understand this rationale in order to clarify any of his client’s
points of confusion with the trial court’s decision. Further, Dendinger has not
demonstrated how this comment amounts to evidence of bias or hostility.
{¶27} The two comments identified on appeal do not indicate that the trial
judge had “a hostile feeling or spirit of ill will or undue friendship * * * toward”
Dendinger or her attorney. Wieser, supra, at ¶ 23, quoting Pratt, supra, at paragraph
four of the syllabus. Further, we also note that this was a bench trial and that no
jurors, therefore, could have been influenced by these statements. See State v. Sayre,
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3d Dist. Marion No. 9-12-25, 2013-Ohio-4108, ¶ 16 (holding that a “trial court must
be careful as to any comments it makes that may have an effect upon the jury.”).
Dendinger has not carried the burden of establishing that the trial judge was biased
against her or her attorney in this particular case. For this reason, her third
assignment of error is overruled.
Conclusion
{¶28} Having found no error prejudicial to the appellant in the particulars
assigned and argued, the judgment of Tiffin-Fostoria Municipal Court is affirmed.
Judgment Affirmed
ZIMMERMAN, P.J. and PRESTON, J., concur.
/hls
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