State v. Williams

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[Cite as State v. Williams, 2010-Ohio-5536.] COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT Plaintiff-Appellee JUDGES: Hon. W. Scott Gwin, P.J. Hon. Sheila G. Farmer, J. Hon. John W. Wise, J. AUBREY J. WILLIAMS Case Nos. 2010CA0009 2010CA0025 2010CA0060 STATE OF OHIO -vs- Defendant-Appellant OPINION CHARACTER OF PROCEEDING: Appeal from the Massillon Municipal Court, Case Nos. 2009CRB2319, 2008CRB02368, and 2009TRD9058 JUDGMENT: Affirmed DATE OF JUDGMENT ENTRY: November 15, 2010 APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant ROBERT A. ZEDELL Two James Duncan Plaza Massillon, OH 44646 GEORGE URBAN 111 Second Street, NW Suite 302 Canton, OH 44702 Stark County, Case Nos. 2010CA0009, 2010CA0025 and 2010CA0060 2 Farmer, J. {¶1} On October 13, 2008, appellant, Aubrey Williams, was charged with one count of theft in violation of R.C. 2913.02 and one count of criminal trespass in violation of R.C. 2911.21 (Case No. 2008CRB02368). On December 4, 2008, appellant pled no contest to the charges. The trial court found appellant guilty and sentenced him to an aggregate term of one hundred eighty days in jail, all but 60 days suspended. Appellant was ordered to have no related offenses for five years. {¶2} On November 2, 2009, appellant was charged with one count of theft in violation of R.C. 2913.02 (Case No. 2009CRB02319). On November 3, 2009, appellant was charged with one count of driving on a suspended operator's license in violation of R.C. 4510.16 (Case No. 2009TRD09058). {¶3} On November 20, 2009 in Case No. 2008CRB02368, the trial court found appellant had violated his probation as he had been charged with theft in Case No. 2009CRB02319, and sentenced him to one hundred twenty days in jail. {¶4} A jury trial on Case Nos. 2009CRB02319 and 2009TRD09058 commenced on December 16, 2009. The jury found appellant guilty as charged. By judgment entry filed same date, the trial court sentenced appellant to one hundred eighty days in jail on each count. {¶5} All of the sentences in all three cases were to be served consecutively. {¶6} Appellant filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows: Stark County, Case Nos. 2010CA0009, 2010CA0025 and 2010CA0060 3 I {¶7} "THE TRIAL COURT'S FINDING OF GUILT IS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE." II {¶8} "THE TRIAL COURT ERRED BY FAILING TO CONDUCT A PROPER COLLOQY (SIC) WHEN THE APPELLANT WAIVED OF (SIC) HIS RIGHT TO COUNSEL." III {¶9} "THE TRIAL COURT COMMITTED ERROR BY IMPROPERLY CHARGING THE JURY." IV {¶10} "THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO MAINTAIN TO THE APPEARANCE OF IMPARTIALITY." V {¶11} "THE APPELLANT WAS DEPRIVED OF DUE PROCESS OF (SIC) BY THE MISCONDUCT OF THE PROSECUTOR." VI {¶12} "THE TRIAL COURT ERRED IN IMPOSING A JAIL TERM WHICH WAS CONTRARY TO LAW." VII {¶13} "THE TRIAL COURT ERRED IN DISCLOSING TO THE JURY THAT THE APPELLANT HAD A PRIOR CRIMINAL RECORD." Stark County, Case Nos. 2010CA0009, 2010CA0025 and 2010CA0060 4 I {¶14} Appellant claims his convictions for theft and driving on a suspended operator's license were against the sufficiency and manifest weight of the evidence. We disagree. {¶15} On review for sufficiency, a reviewing court is to examine the evidence at trial to determine whether such evidence, if believed, would support a conviction. State v. Jenks (1991), 61 Ohio St.3d 259. "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." Jenks at paragraph two of the syllabus, following Jackson v. Virginia (1979), 443 U.S. 307. On review for manifest weight, a reviewing court is to examine 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 jury 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. Martin (1983), 20 Ohio App.3d 172, 175. See also, State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52. The granting of a new trial "should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction." Martin at 175. We note circumstantial evidence is that which can be "inferred from reasonably and justifiably connected facts." State v. Fairbanks (1972), 32 Ohio St.2d 34, paragraph five of the syllabus. "[C]ircumstantial evidence may be more certain, satisfying and persuasive than direct evidence." State v. Richey, 64 Ohio St.3d 353, 1992-Ohio-44. It is to be given the same weight and deference as direct evidence. State v. Jenks (1991), 61 Ohio St.3d 259. Stark County, Case Nos. 2010CA0009, 2010CA0025 and 2010CA0060 5 {¶16} Appellant was convicted of theft in violation of R.C. 2913.02 which states the following: {¶17} "(A) No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services in any of the following ways: {¶18} "(1) Without the consent of the owner or person authorized to give consent; {¶19} "(2) Beyond the scope of the express or implied consent of the owner or person authorized to give consent; {¶20} "(3) By deception; {¶21} "(4) By threat; {¶22} "(5) By intimidation. {¶23} Appellant argues his conviction for theft is deficient because no one saw him take the ribs. {¶24} At trial, it was appellant's position that (1) the ribs were in his possession prior to going into Marc's, (2) he purchased the ribs from an unknown person he met at Scheetz's gas station right by Marc's, and (3) no one saw him take the ribs from the rib cooler, secure them, and leave the store. T. at 32, 93. {¶25} Dan Ehret, a meat department employee at Marc's, testified at 6:50 p.m. on the day in question, there were fifteen packages of ribs in the cooler and five minutes later, a significant number of packages were gone. T. at 37. Mr. Ehret observed appellant at a cash register and he appeared to be nervous. Id. Appellant was wearing baggy sweatpants, and he did not purchase anything. T. at 37-38, 39. Appellant left Stark County, Case Nos. 2010CA0009, 2010CA0025 and 2010CA0060 6 the store and Mr. Ehret gave his manager a description of appellant's vehicle and his license plate number. T. at 38. As soon as appellant pulled out of the parking lot, he was stopped by the police. Id. {¶26} Perry Township Police Patrolman Gary Fabynick was dispatched to the Marc's location where he stopped a vehicle with the reported license plate number. T. at 69. Appellant was the driver of the vehicle. T. at 71. The stop occurred "close to an eighth of a mile" from Marc's. Id. Upon approaching the vehicle, Patrolman Fabynick observed packages of ribs on the passenger side floor of the vehicle. T. at 71, 74. When asked if he had been in Marc's that evening, appellant replied "no I haven't been there for a long time." T. at 71. The packages of ribs were cold to the touch and the price tags had been partially ripped off. T. at 75-76. The ribs found in appellant's vehicle were photographed. T. at 75; Plaintiff's Exhibits 1-7, and 11-13. {¶27} Thomas Shade, assistant manager at Marc's, identified appellant as being in the store on that evening. T. at 52-53. Mr. Shade corroborated Mr. Ehret's testimony that appellant was wearing loose fitting sweatpants, spoke with a cashier, and left the store without buying anything. T. at 53-54. Mr. Shade reviewed the photographs and identified the packages of ribs as those that the police had returned to Marc's that evening. T. at 56. He identified the ribs as being from Marc's by the stickers in the upper right hand corners of the packages. T. at 57. The stickers were partially torn off to remove the sensors from the packages. Id. The ribs were still cool some forty minutes after leaving the store. T. at 59. During the time when the ribs went missing, no customers had purchased ribs. T. at 59-60. Stark County, Case Nos. 2010CA0009, 2010CA0025 and 2010CA0060 7 {¶28} Clearly the jury chose to accept the account given by the store employees as opposed to appellant's claims. There was the positive identification of appellant as being in the store at the time of the disappearance of the rib packages, rib packages with sensors ripped off were discovered in appellant's vehicle, and those rib packages were from Marc's. {¶29} Upon review, we find sufficient credible evidence to substantiate the theft conviction and no manifest miscarriage of justice. {¶30} Appellant was also convicted of driving on a suspended operator's license in violation of R.C. 4510.16(A) which states the following: {¶31} "No person, whose driver's or commercial driver's license or temporary instruction permit or nonresident's operating privilege has been suspended or canceled pursuant to Chapter 4509. of the Revised Code, shall operate any motor vehicle within this state, or knowingly permit any motor vehicle owned by the person to be operated by another person in the state, during the period of the suspension or cancellation, except as specifically authorized by Chapter 4509. of the Revised Code." {¶32} Appellant argues his conviction for driving on a suspended operator's license is deficient because the prosecutor failed to prove via an authenticated record the status of his driving privileges. We note during his opening statement, appellant admitted "I was driving the car under suspension, suspended license." T. at 31. Patrolman Fabynick identified Plaintiff's Exhibit 10 as appellant's Bureau of Motor Vehicle's driving record reflecting that his driving privileges were suspended. T. at 7273. Patrolman Fabynick testified the exhibit was a "certified copy." T. at 72. Stark County, Case Nos. 2010CA0009, 2010CA0025 and 2010CA0060 8 {¶33} Upon review, we find sufficient credible evidence to substantiate the driving on a suspended operator's license conviction and no manifest miscarriage of justice. {¶34} Assignment of Error I is denied. II {¶35} Appellant claims the trial court failed to properly advise him when he waived his right to counsel. We disagree. {¶36} Crim.R. 44 governs assignment of counsel. Subsections (B) and (C) state the following: {¶37} "(B) Counsel in petty offenses {¶38} "Where a defendant charged with a petty offense is unable to obtain counsel, the court may assign counsel to represent him. When a defendant charged with a petty offense is unable to obtain counsel, no sentence of confinement may be imposed upon him, unless after being fully advised by the court, he knowingly, intelligently, and voluntarily waives assignment of counsel. {¶39} "(C) Waiver of counsel {¶40} "Waiver of counsel shall be in open court and the advice and waiver shall be recorded as provided in Rule 22. In addition, in serious offense cases the waiver shall be in writing." {¶41} The issue of counsel for appellant commenced at the November 20, 2009 probation violation hearing: {¶42} "COURT: ***On Mr. Williams pretrial on Nov.17, 2009, the Court advised the defendant at the pretrial of his right to counsel and either advised him to retain Stark County, Case Nos. 2010CA0009, 2010CA0025 and 2010CA0060 counsel or be represented by the Stark County Public Defender. 9 I found that the defendant is indigent and does not have funds to employ a lawyer. I appointed the Stark County Public Defender to represent the defendant at today's hearing which is a show cause/probation hearing and I want to appreciate Mr. Kuhn for coming over. {¶43} "ATTY. KUHN: No problem your honor. {¶44} "COURT: I also will appoint the public defender for the jury trial that is scheduled for Dec. 16, 2009. The defendant did state in open court that he does not want to be represented by the Stark County Public Defender and I found that the defendant make a voluntarily and intelligent waiver of counsel pursuant to Gibson and I want to again fully advise the defendant of his sixth amendment right to counsel and make a full inquiry set forth in Gibson of his waiver of right to counsel. Today's probation violation hearing on these matters involving the 2008-CRB-2368, 2009-CRB1613, defendant has been put on notice that he violated the probationary provision no related offenses for five years and no driving without a valid license and failure to provide Marc's the no shoplifting order. Mr. Williams I'm going to address you and ask you do you still wish to represent yourself? {¶45} "NO RESPONSE HEARD {¶46} "COURT: That is either yes of no. {¶47} "DEFT.: No. {¶48} "COURT: You don't want to represent yourself? {¶49} "DEFT.: No. {¶50} "COURT: Do you want the services of the Stark County Public Defender to represent you? Stark County, Case Nos. 2010CA0009, 2010CA0025 and 2010CA0060 10 {¶51} "DEFT.: Yeah. {¶52} "COURT: Okay so at this time um I'm going to state that I informed you in open court of your right to a lawyer and your right to be represented by a lawyer at today's hearing and the jury trial scheduled on November or Dec. 16, 2009. I advised Mr. Williams of the nature and extent of the charges against him at his pretrial, the penalties involving for the jury trial would six months in jail on each charge and a $1,000 fine. The defendant on Friday, Nov. 20, 2009, has indicated he does not now wish to waive his right to counsel and that I will appoint Mr. Kuhn to represent Mr. Williams at his probation hearing today and at the jury trial on Dec.*** {¶53} "*** {¶54} "COURT: Thank you. Do you wish to have Mr. Kuhn represent you at this probation violation hearing today? {¶55} "DEFT.: Yes." November 20, 2009 T. at 3-5. {¶56} During the December 16, 2009 jury trial, the trial court explained the following to the jurors: {¶57} "COURT: ***The lawyer, and we only have one lawyer today and that will be Mr. LaPenna, will present the evidence according to the rules and Mr. Williams has decided to act as his own lawyer however the Court has appointed Ms. Mary Warlop (sic) from the Stark County Public Defender's Office to act as Mr. Williams legal advisor in the event Mr. Williams needs to consult with a lawyer.*** The procedure for today's trial will be as follows: first Mr. LaPenna representing the State of Ohio will outline what they expect his evidence will be. These opening statements are not evidence but they are a preview of the position of each party. Mr. Williams will also give you an opening Stark County, Case Nos. 2010CA0009, 2010CA0025 and 2010CA0060 11 statement and give you a position of what he expects his evidence will be if he wishes to present any. He does not need to do any of that. Then the State of Ohio through Mr. LaPenna will offer its evidence through witnesses and exhibits. The defendant Mr. Williams may but need not offer any evidence. If the defendant presents evidence then the State may present rebuttal evidence. The trial concludes with the closing arguments of both Mr. LaPenna and Mr. Williams and the instructions of law by this Court.***The case is entitled State of Ohio -vs- Aubrey James Williams. The defendant is Mr. Williams. Mr. Williams will you please stand. Okay, thank you very much Mr. Williams. Mr. Williams has decided to waive his right to counsel and to act as his own lawyer in today's jury trial. As I stated to you I have appointed Mary Warlock from the Stark County Public Defender's Office, Mary would you please stand. Okay, thank you Mary." December 16, 2009 T. at 3-5. {¶58} Journalized on November 20, 2009 in Case No. 2009TRD09058 is an entry memorializing the trial court's advice to appellant of his right to counsel. The trial court noted appellant stated he did not want to be represented by the Stark County Public Defender's Office and wished to represent himself at his jury trial. A second entry journalized on same date in Case No. 2009CRB02319 was a written waiver of counsel by appellant, wherein he acknowledged the trial court informed him of his right to counsel and he was waiving that right as he was making an informed and knowing decision to represent himself at the jury trial. {¶59} Upon review, we find Crim.R. 44 (B) and (C) have been complied with sub judice. {¶60} Assignment of Error II is denied. Stark County, Case Nos. 2010CA0009, 2010CA0025 and 2010CA0060 12 III {¶61} Appellant claims the trial court erred by failing to completely instruct the jury on the definition of circumstantial evidence by leaving out an instruction on inferences, and using the words "theft" and "shoplifting" interchangeably during the jury instructions. We disagree. {¶62} Crim.R. 30 governs instructions and states the following in pertinent part: {¶63} "On appeal, a party may not assign as error the giving or the failure to give any instructions unless the party objects before the jury retires to consider its verdict, stating specifically the matter objected to and the grounds of the objection. Opportunity shall be given to make the objection out of the hearing of the jury." {¶64} Appellant concedes no objections were made, but argues plain and structural error. In order to prevail under a plain error analysis, appellant bears the burden of demonstrating that the outcome of the trial clearly would have been different but for the error. State v. Long (1978), 53 Ohio St.2d 91; Crim.R. 52(B). Notice of plain error "is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." Long, at paragraph three of the syllabus. Structural error is an error which affects "the framework within which the trial proceeds, rather than simply an error in the trial process itself." Arizona v. Fulminante (1991), 499 U.S. 279, 310. Examples of structural error are total deprivation of right to counsel, non-impartial judge, the right to self-representation at trial, and the right to a public trial. Id. " 'Without these basic protections, a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be Stark County, Case Nos. 2010CA0009, 2010CA0025 and 2010CA0060 13 regarded as fundamentally fair.' " Id., quoting Rose v. Clark (1986), 478 U.S. 570, 577578. {¶65} The trial court instructed on circumstantial evidence as, "proof of facts by direct evidence from which you may infer other reasonable facts or conclusions. In the absence of direct evidence circumstantial evidence by itself will justify a finding of guilty if the circumstances are so convincing and exclude a reasonable doubt of the defendant's guilt." T. at 99. The trial court did not offer an instruction on inferences. Although the instruction may have been helpful, there is no evidence to suggest that the jury did not understand the term "infer" which resulted in prejudice to appellant. {¶66} The trial court instructed on the definition of theft, but in further instructing the jury, used the words "theft" and "shoplifting" interchangeably. T. at 98, 100-101. We note when the trial court read the verdict forms to the jury, the theft statute and the elements of theft were properly included. T. at 101. {¶67} Upon review, we find appellant's complained of errors do not rise to the level of plain or structural error. IV, VII {¶68} Appellant claims the trial court erred in endorsing a specific witness, permitting appellant to address the jurors in a monologue to inform the jurors why he had chosen to represent himself, indicating to the jury that appellant had been in court on prior occasions, and improperly informing the jury that appellant had a criminal record. {¶69} Under Evid.R. 611(A), "[t]he court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) Stark County, Case Nos. 2010CA0009, 2010CA0025 and 2010CA0060 14 make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment." Furthermore, pursuant to Evid.R. 614(B), trial courts are permitted to call and interrogate witnesses. Within this framework, we will address appellant's complained of errors. {¶70} During voir dire, the trial court corrected the prosecutor's mispronunciation of the name of a witness, Mr. Ehret, and informed the jury that he went to school with him. T. at 9. During Mr. Ehret's entire testimony, the trial court did not interject himself nor endorse his credibility. T. at 34-49. The fact that a judge may have gone to school with a witness does not in any way vouch for the witness's credibility. {¶71} Also during voir dire, appellant asked the trial court if he could tell the jurors why he chose to represent himself. T. at 20. The trial court acquiesced, and as appellant started to tell the jury why he was proceeding pro se, he informed them by inference of his prior criminal record: {¶72} "DEFT.: Okay uhm the reason I choose to represent myself is because I had some public defenders in the past that represented me like for instance uhm there was a public defender that represented me, his name was Sean Burns, uhm the first thing I asked him as ¦ {¶73} "STATE: Your honor ¦ {¶74} "COURT: Well that we're getting into othercases. I don't want you to prejudice uhm Mr. Williams ¦ {¶75} "STATE: ¦this is improper, yeah. {¶76} "DEFT.: I mean but that's the reason I'm explaining." T. at 20-21. Stark County, Case Nos. 2010CA0009, 2010CA0025 and 2010CA0060 15 {¶77} The trial court sought to negate or mitigate against any prejudice by informing the prospective jurors of appellant's right to proceed pro se: {¶78} "COURT: ¦well, yes and no, Mr. Williams was given an opportunity for other public defenders to represent him and the Court found at a previous hearing that the people did not represent to Mr. Williams. Mr. Williams feels he has ¦ nothing that I can change but you have a constitutional right to a lawyer and the Court was going to appoint a lawyer for Mr. Williams and he refused. You have a constitutional right to a lawyer but you don't have a constitutional right to a specific lawyer so at this point and time Aubrey I'm going to have you ¦ that a position you hold but I did provide you with a lawyer and a legal advisor Mary Warlock who is right behind you." T. at 21. {¶79} We note appellant was the "architect of his own demise." Under the doctrine of "invited error," it is well-settled that "a party will not be permitted to take advantage of an error which he himself invited or induced the trial court to make." State ex rel. Smith v. O'Connor (1995), 71 Ohio St.3d 660, 663, citing State ex rel. Fowler v. Smith (1994), 68 Ohio St.3d 357, 359. See, also, Lester v. Leuck (1943), 142 Ohio St. 91, paragraph one of the syllabus. As the Supreme Court of Ohio has stated: {¶80} "The law imposes upon every litigant the duty of vigilance in the trial of a case, and even where the trial court commits an error to his prejudice, he is required then and there to challenge the attention of the court to that error, by excepting thereto, and upon failure of the court to correct the same to cause his exceptions to be noted. It follows, therefore, that, for much graver reasons, a litigant cannot be permitted, either intentionally or unintentionally, to induce or mislead a court into the commission of an Stark County, Case Nos. 2010CA0009, 2010CA0025 and 2010CA0060 16 error and then procure a reversal of the judgment for an error for which he was actively responsible." Lester at 92-93, quoting State v. Kollar (1915), 142 Ohio St. 89, 91. {¶81} As cited in Assignment of Error II, at the commencement of the trial, the trial court explained why appellant was unrepresented. T. at 3-5. {¶82} Upon review, we find no error in the trial court explaining the obvious to the prospective jurors. {¶83} Lastly, appellant argues the trial court improperly informed the jurors of appellant's criminal record. As noted supra, appellant brought up his previous experiences and so to speak, "let the cat out of the bag." The trial court endeavored to mitigate the affect of appellant's own statements. We do not find any undo prejudice. {¶84} Assignments of Error IV and VII are denied. V {¶85} Appellant claims he was denied a fair trial because of prosecutorial misconduct. We disagree. {¶86} The test for prosecutorial misconduct is whether the prosecutor's comments and remarks were improper and if so, whether those comments and remarks prejudicially affected the substantial rights of the accused. State v. Lott (1990), 51 Ohio St.3d 160, certiorari denied (1990), 112 L.Ed.2d 596. In reviewing allegations of prosecutorial misconduct, it is our duty to consider the complained of conduct in the contest of the entire trial. Darden v. Wainwright (1986), 477 U.S. 168. {¶87} Appellant argues during rebuttal closing argument, the prosecutor stated not all the elements of an offense need to be proven to support a conviction. The prosecutor stated the following: Stark County, Case Nos. 2010CA0009, 2010CA0025 and 2010CA0060 17 {¶88} "STATE: Just real uhm as I said before the only evidence you're allowed to consider is the evidence taken from the witness stand. Now as far as the question for the possible hypothesize that the defendant just put to you, perhaps I could of gotten those ribs just before that. When you look at the jury instructions or when you look at the verdict forms you'll see that it says knowingly take or exerted control over property from another. In this case there's no doubt that those are the ribs that were just stolen from that store and its on his person. He was seen by somebody the entire time. The officer didn't see him when he left the store. We don't know how he got the ribs from his pants but those ribs were from Marc's and were stolen from Marc's. Defendant knew they were stolen from Marc's so even if what he tried to hypothesize that someone else gave them to him which is not evidence of course its just a mere hypothesizes, even if that's true he still guilty because when you look, listen to the jury instructions, look at the jury form he exerted control over stolen property." T. at 94. {¶89} Contrary to appellant's assertion, the prosecutor's statements do not instruct the jury to disregard the elements of the offense. The statements were made in the context of rebutting appellant's argument that because no one observed him taking the ribs, the ribs found in his possession were not the stolen ribs. T. at 93. {¶90} Upon review, we fail to find any prosecutorial misconduct. {¶91} Assignment of Error V is denied. VI {¶92} Appellant claims his twenty month aggregate jail sentence on four misdemeanors was contrary to law. We disagree. Stark County, Case Nos. 2010CA0009, 2010CA0025 and 2010CA0060 18 {¶93} R.C. 2929.41 governs multiple sentences. Subsection (B)(1) states the following: {¶94} "A jail term or sentence of imprisonment for a misdemeanor shall be served consecutively to any other prison term, jail term, or sentence of imprisonment when the trial court specifies that it is to be served consecutively or when it is imposed for a misdemeanor violation of section 2907.322, 2921.34, or 2923.131 of the Revised Code. {¶95} "When consecutive sentences are imposed for misdemeanor under this division, the term to be served is the aggregate of the consecutive terms imposed, except that the aggregate term to be served shall not exceed eighteen months." {¶96} We note there are only three cases before this court, Case No. 2010CA0009 which is the appeal of Case No. 2009TRD09058 wherein appellant was sentenced to one hundred eighty days in jail, Case No. 2010CA0025 which is the appeal of Case No. 2009CRB02319 wherein appellant was sentenced to one hundred eighty days in jail, and Case No. 2010CA0060 which is the appeal of Case No. 2008CRB02368 wherein appellant was sentenced to one hundred twenty days on a probation violation.1 The three sentences add up to an aggregate jail sentence of sixteen months in jail, within the dictates of R.C. 2929.41(B)(1). {¶97} Assignment of Error VI is denied. 1 We note there is a fourth case, Case No. 2009CRB01613 wherein appellant was sentenced to one hundred twenty days in jail on a probation violation; however, that case has not been appealed and is not before this court. Stark County, Case Nos. 2010CA0009, 2010CA0025 and 2010CA0060 19 {¶98} The judgments of the Massillon Municipal Court of Stark County, Ohio are hereby affirmed. By Farmer, J. Gwin, P.J. and Wise, J. concur. _s/ Sheila G. Farmer_________________ _s/ W. Scott Gwin____________________ _s/ John W. Wise_____________________ JUDGES SGF/sg 1025 Stark County, Case Nos. 2010CA0009, 2010CA0025 and 2010CA0060 20 IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO Plaintiff-Appellee -vsAUBREY J. WILLIAMS Defendant-Appellant : : : : : : : : : : JUDGMENT ENTRY CASE NOS. 2010CA0009 2010CA0025 2010CA0060 For the reasons stated in our accompanying Memorandum-Opinion, the judgments of the Massillon Municipal Court of Stark County, Ohio are affirmed. Costs to appellant. _s/ Sheila G. Farmer_________________ _s/ W. Scott Gwin____________________ _s/ John W. Wise_____________________ JUDGES Stark County, Case Nos. 2010CA0009, 2010CA0025 and 2010CA0060 21

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