[Cite as State v. Seibert, 2021-Ohio-3069.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF WAYNE )
STATE OF OHIO C.A. Nos. 20AP0013 20AP0014 Appellee
v. APPEAL FROM JUDGMENT DREW SEIBERT ENTERED IN THE WAYNE COUNTY MUNICIPAL COURT Appellant COUNTY OF WAYNE, OHIO CASE Nos. 2019 CR-B 1418 2019 CR-B 1495
DECISION AND JOURNAL ENTRY
Dated: September 7, 2021
CARR, Presiding Judge.
{¶1} Drew Seibert appeals from the judgment of the Wayne County Municipal Court.
This Court affirms.
I.
{¶2} This is a consolidated appeal of two separate criminal cases: 2019 CR-B 001418
(“First Case”) and 2019 CR-B 001495 (“Second Case”). In the First Case, Seibert was charged
with one count of aggravated menacing in violation of R.C. 2903.21(A), and one count of
domestic violence in violation of R.C. 2919.25(C). The First Case arose from events that
occurred on October 20, 2019, between Seibert and his father (“Father”). The First Case
proceeded to a jury trial.
{¶3} During the jury trial, Father testified that Seibert had been living with him for a
few weeks in his studio apartment. According to Father, he came home from work one evening 2
and Seibert started an argument “out of the blue[.]” Seibert accused Father of impregnating a
13-year-old girl, and threatened to kill him. Father testified that he did not want anything to
happen, so he left the apartment, walked to his neighbor Jeffrey’s apartment, and asked Jeffery to
call the police. Father explained that he asked Jeffrey to call the police because he did not have
his phone on him.
{¶4} Jeffrey called the police, and they arrived shortly thereafter. Father told the
police, and then testified at trial, that he believed Seibert when Seibert told him he was going to
kill him. Father described Seibert’s behavior as erratic and crazy, and indicated that he was
afraid Seibert “was going to do something.” On cross-examination, Father acknowledged that he
was also afraid Seibert would hurt himself.
{¶5} Jeffrey also testified at trial, stating that Father called him and asked him to call
the police on Seibert. He explained that Father called him first, then Father walked over to his
apartment, and then he (Jeffrey) called the police. Jeffrey described Father as distraught and
upset, and explained that Father asked him to call the police on Seibert because Father did not
have “the heart to call” the police on his son.
{¶6} Two responding officers also testified. One officer testified that Father seemed
fearful, and the other officer testified that Father indicated that he thought Seibert’s threat to kill
him was credible. The jury ultimately found Seibert guilty of aggravated menacing, but not
guilty of domestic violence.
{¶7} In the Second Case, Seibert was charged with the following five counts: (1)
assault in violation of R.C. 2903.13(A); (2) aggravated menacing in violation of R.C. 2903.21;
(3) obstructing official business in violation of Section 2921.31(A); (4) domestic violence in
violation of R.C. 2919.25(C); and (5) disorderly conduct in violation of R.C. 2917.11(A)(1). 3
The Second Case arose from events that occurred on November 3, 2019, between Seibert, Father,
and Jeffrey. The Second Case proceeded to a bench trial.
{¶8} During the bench trial, Father again testified that Seibert was living with him in
his studio apartment. According to Father, when he got out of the shower, Seibert told him he
still smelled. Seibert then acted aggressively toward him, telling him he was “in [his] bubble[,]”
and instructed him to get out of his way, otherwise he would hurt him. Seibert had a metal water
bottle in his hand and threatened to use it against Father. Father testified that he tried to stay
away from Seibert, but they ended up wrestling, and Father eventually fell partially under the
bed. Seibert then got up and went to the bathroom, and Father called Jeffrey, asking him to
come over and help him up. Father testified that Seibert was acting like he was on drugs and was
“acting out of his head.”
{¶9} Jeffrey arrived at Father’s apartment and started to help Father get up off the
floor. According to Jeffrey, Seibert was in the bathroom when he arrived, but then came out of
the bathroom in a “violent state” and told Jeffrey he was “in [his] bubble[.]” Jeffrey explained to
Seibert that he was just there to help Father. Seibert then told Jeffrey he would kill him with one
punch, so Jeffrey responded: “okay take the first punch, make it the first punch because after the
first punch is throw[n] then you are going to see me go off.” Seibert then “slugged [him.]”
Jeffrey explained that by “slugged” he meant Seibert pushed him. Jeffrey fell backward and hit
his head on the TV stand, causing a scratch. Another neighbor called the police, and they arrived
shortly thereafter.
{¶10} Two responding officers testified at trial. The first officer testified that when he
arrived at the apartment, Seibert told him nothing was going on. Within a few minutes of their
arrival, the police told Seibert he was under arrest. Seibert then told the officers they were not 4
real police officers and refused to put his hands behind his back and comply with the arrest. The
officers reiterated that he was under arrest, and eventually persuaded Seibert to walk from the
door of the apartment to their cruisers in the parking lot. The officer explained that Seibert
continued to refuse to comply with the arrest and was being verbally aggressive. After about 30
minutes of non-compliance, the officers forcibly arrested Seibert.
{¶11} The other officer testified similarly, adding that Seibert indicated he would
physically resist them if they tried to arrest him. That officer also testified that it took four police
officers and two deputy sheriffs to arrest Seibert, and that Seibert’s behavior delayed the arrest
and impeded his ability to perform his job. He testified that, had Seibert complied with their
requests, he would have been arrested as much as thirty minutes earlier.
{¶12} The trial court found Seibert guilty of all five charges. Seibert separately
appealed both cases, and this Court consolidated his appeals. He now raises two assignments of
error for this Court’s review.
II.
ASSIGNMENT OF ERROR I
SEIBERT’S CONVICTION WAS BASED ON INSUFFICIENT EVIDENCE AS A MATTER OF LAW AND WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶13} In his first assignment of error, Seibert challenges the sufficiency and the weight
of the evidence presented in both cases. It is well-established, however, that “a review of the
sufficiency of the evidence and a review of the manifest weight of the evidence are separate and
legally distinct determinations.” State v. Vicente-Colon, 9th Dist. Lorain No. 09CA009705,
2010-Ohio-6242, ¶ 18. Accordingly, “it is not appropriate to combine a sufficiency argument
and a manifest weight argument within a single assignment of error.” State v. Mukha, 9th Dist. 5
Wayne No. 18AP0019, 2018-Ohio-4918, ¶ 11; see Loc.R. 7(B)(7) (“Each assignment of error
shall be separately discussed * * *.”); App.R. 12(A)(2) (“The court may disregard an assignment
of error presented for review if the party raising it fails to * * * argue the assignment separately
in the brief[.]”). Nonetheless, we exercise our discretion to consider the merits of Seibert’s
combined assignment of error.
{¶14} Whether a conviction is supported by sufficient evidence is a question of law,
which we review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). In carrying out
this review, our “function * * * 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.” State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.
“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.” Id.
{¶15} On the other hand, when considering a challenge to the manifest weight of the
evidence, this Court is required to consider 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 (9th Dist.1986). “A reversal on this basis is reserved for the
exceptional case in which the evidence weighs heavily against the conviction.” State v.
Croghan, 9th Dist. Summit No. 29290, 2019-Ohio-3970, ¶ 26. 6
{¶16} We will first address Seibert’s arguments relative to the First Case, beginning
with his challenge to the sufficiency of the evidence presented in support of his conviction for
aggravated menacing.
{¶17} R.C. 2903.21(A) governs aggravated menacing and provides, in relevant part, that
“[n]o person shall knowingly cause another to believe that the offender will cause serious
physical harm to the person or property of the other person[.]” “A person acts knowingly,
regardless of purpose, when the person is aware that the person’s conduct will probably cause a
certain result or will probably be of a certain nature.” R.C. 2901.22(B). R.C. 2901.01(A)(5)(b)
defines “[s]erious physical harm to persons” as “[a]ny physical harm that carries a substantial
risk of death[.]”
{¶18} Seibert argues that the State failed to prove beyond a reasonable doubt that Father
believed he would cause him serious physical harm. In support of his argument, Seibert points to
Father’s testimony wherein Father acknowledged that he was concerned for Seibert’s safety.
Seibert concludes that the evidence demonstrated that Father was more concerned for his
(Seibert’s) safety than his own.
{¶19} As previously noted, Father testified that Seibert told him he was going to kill
him, and that he believed Seibert’s threat was credible. The fact that Father was also concerned
for his son’s safety does not impact the sufficiency analysis. Viewing the evidence in a light
most favorable to the State, a rational trier of fact could have found the essential elements of
aggravated menacing proven beyond a reasonable doubt. See State v. Parker, 9th Dist. Summit
No. 23303, 2007-Ohio-960, ¶ 9, quoting R.C. 2903.21(A) (noting that threatening to kill
someone satisfies the belief “that the offender will cause serious physical harm” element of 7
aggravated menacing). We, therefore, reject Seibert’s sufficiency argument relative to the First
Case. We now turn to Seibert’s manifest-weight argument relative to the First Case.
{¶20} Seibert argues that his conviction for aggravated menacing was against the
manifest weight of the evidence because Father and Jeffrey’s testimonies were contradictory and
unreliable. Seibert points to the fact that Father testified that he left the apartment, walked to
Jeffrey’s apartment, and asked Jeffrey to call the police because he did not have his phone on
him. Jeffrey, on the other hand, testified that Father called him and asked him to call the police
because Father did not want to call the police on his son. Jeffrey testified that, after Father called
him, Father walked over to his apartment, and then he (Jeffrey) called the police. Seibert
surmises that Father’s version of the events suggests that Father left the apartment because he
was afraid for his own safety, while Jeffrey’s version of the events suggests that Father stayed in
the apartment because he was concerned for Seibert’s safety, not his own safety. He concludes
that these testimonies were contradictory and not credible.
{¶21} While the above testimony was conflicting as to whether Father called Jeffrey
before walking over to Jeffrey’s apartment, the jury was in the best position to evaluate the
witnesses’ credibility, and we cannot say that this conflicting testimony rendered Seibert’s
conviction for aggravated menacing against the manifest weight of the evidence. State v. Ross,
9th Dist. Wayne No. 12CA0007, 2013-Ohio-522, ¶ 16 (“While there was conflicting testimony
at trial, we note that the trier of fact was in the best position to evaluate the credibility of
witnesses, and this Court will not overturn the trial court’s verdict on a manifest weight of the
evidence challenge simply because the trial court chose to believe certain witnesses’ testimony
over the testimony of others.”). 8
{¶22} Seibert also argues that the verdicts in the First Case were inconsistent because he
was found not guilty of domestic violence, yet guilty of aggravated menacing. He argues that
this demonstrates that the jury clearly lost its way, rendering his conviction against the manifest
weight of the evidence. Seibert, however, “has not separately argued that the trial court erred by
accepting inconsistent jury verdicts, so our consideration of this argument is limited to whether it
bears on the weight of the evidence. It does not.” State v. Phillips, 9th Dist. Summit No. 27552,
2017-Ohio-1186, ¶ 20. “Even assuming arguendo that the issue was separately argued on
appeal, ‘juries are not required to reach consistent verdicts between separate counts.’” State v.
Hamilton, 9th Dist. Lorain No. 17CA011238, 2019-Ohio-1829, ¶ 23, quoting State v. Singh, 9th
Dist. Summit No. 28819, 2018-Ohio-3473, ¶ 15. “Moreover, [Seibert] never objected or raised
any argument regarding inconsistent verdicts at the trial court level and has thus forfeited all but
plain error, which we will not sua sponte raise on his behalf.” Hamilton at ¶ 23, citing Singh at
¶ 15.
{¶23} In light of the foregoing, we conclude that Seibert has not established that his
conviction for aggravated menacing in the First Case was against the manifest weight of the
evidence. We now turn to Seibert’s sufficiency and manifest-weight arguments relative to the
Second Case.
{¶24} Seibert argues that his convictions for assault, aggravated menacing, and
obstructing official business in the Second Case were not supported by sufficient evidence,
and/or that they were against the manifest weight of the evidence. We will address each of
Seibert’s convictions from the Second Case in turn, beginning with his conviction for assault.
{¶25} R.C. 2903.13(A) governs assault and provides, in relevant part, that “[n]o person
shall knowingly cause or attempt to cause physical harm to another[.]” As previously noted, “[a] 9
person acts knowingly, regardless of purpose, when the person is aware that the person’s conduct
will probably cause a certain result or will probably be of a certain nature.” R.C. 2901.22(B).
“Physical harm” to a person means “any injury, illness, or other physiological impairment,
regardless of its gravity or duration.” R.C. 2901.01(A)(3).
{¶26} Seibert argues that his conviction for assault was not supported by sufficient
evidence because the State failed to prove that he knowingly caused or attempted to cause
physical harm to Jeffrey, as opposed to accidentally pushing him. We reject that argument.
Jeffrey testified that Seibert pushed him in the chest, causing him to fall backwards and hit his
head on the corner of the TV stand. Jeffrey testified that this resulted in a scratch on his head.
Viewing this evidence in a light most favorable to the State, a rational trier of fact could have
found the essential elements of assault proven beyond a reasonable doubt.
{¶27} Seibert also argues that his conviction for assault was against the manifest weight
of the evidence. He argues that Jeffrey provided inconsistent testimony and was otherwise not
credible. Seibert points to Jeffrey’s testimony wherein Jeffrey indicated that Seibert told him he
would kill him with one punch. Seibert asserts that it is not consistent that, after telling Jeffrey
he would kill him with one punch, he would simply push Jeffrey in the chest. Seibert also asserts
that the evidence was unclear as to whether he knowingly pushed Jeffrey, or whether he
accidentally pushed him as he (Seibert) was leaving the apartment. Additionally, Seibert asserts
that Jeffrey was not credible because he initially testified that he was “slugged[,]” but then later
testified that he was pushed.
{¶28} Seibert’s arguments are unpersuasive. The jury was free to believe Jeffrey’s
testimony that Seibert pushed him in the chest after Seibert threatened to punch him.
Additionally, there was no evidence to indicate that Seibert accidentally pushed Jeffrey. 10
Regarding the fact that Jeffrey initially testified that Seibert “slugged” him, Jeffrey explained
that by “slugged[,]” he meant that Seibert pushed him. Thus, contrary to Seibert’s argument,
there was no inconsistency between Jeffrey’s initial testimony that he was slugged, and his later
testimony that he was pushed. Having reviewed the record, this Court cannot say that Seibert’s
conviction for assault in the Second Case was against the manifest weight of the evidence. We
now turn to his conviction for aggravated menacing.
{¶29} As previously noted in our discussion of the First Case, R.C. 2903.21(A) governs
aggravated menacing and provides, in relevant part, that “[n]o person shall knowingly cause
another to believe that the offender will cause serious physical harm to the person or property of
the other person[.]” The definitions for “knowingly” and “serious physical harm” set forth above
also apply here.
{¶30} Seibert argues that his conviction for aggravated menacing in the Second Case
was not supported by sufficient evidence because the State failed to establish that Jeffrey
believed he (Seibert) was going to cause him serious physical harm. We disagree.
{¶31} Jeffrey testified that Seibert was in a “violent state” and that Seibert told him he
would kill him with one punch. Jeffrey testified that Seibert seemed to be on drugs, and that he
believed Seibert could act upon his threat. Viewing this evidence in a light most favorable to the
State, a rational trier of fact could have found the essential elements of aggravated menacing
proven beyond a reasonable doubt. See Parker, 2007-Ohio-960, at ¶ 9, quoting R.C. 2903.21(A)
(noting that threatening to kill someone satisfies the belief “that the offender will cause serious
physical harm” element of aggravated menacing).
{¶32} Seibert also argues that his conviction for aggravated menacing was against the
manifest weight of the evidence because Jeffrey did not believe that he (Seibert) would cause 11
him serious physical harm. Seibert supports his position by citing Jeffrey’s testimony wherein
Jeffrey admitted telling Seibert: “okay take the first punch, make it the first punch because after
the first punch is throw[n] then you are going to see me go off.” Seibert concludes that this
statement demonstrates that Jeffrey did not believe that he (Seibert) would cause him serious
physical harm.
{¶33} Despite Seibert’s arguments, the jury was free to believe Jeffrey’s testimony that
he believed Seibert’s threat to kill him with one punch was credible. The fact that Jeffrey
responded by threatening to hit him back does not change that fact. We, therefore, conclude that
Seibert has not established that his conviction for aggravated menacing in the Second Case was
against the manifest weight of the evidence. We now turn to Seibert’s argument relative to his
conviction for obstructing official business.
{¶34} R.C. 2921.31(A) governs obstructing official business and provides that:
No person, without privilege to do so and with purpose to prevent, obstruct, or delay the performance by a public official of any authorized act within the public official’s official capacity, shall do any act that hampers or impedes a public official in the performance of the public official’s lawful duties.
Seibert argues that this statute requires an affirmative act, and that his non-compliance with the
arrest was insufficient to support his conviction for obstructing official business. Based upon
this Court’s precedent discussed below, we reject Seibert’s argument.
{¶35} “An affirmative act is required in order to support a finding that an individual was
guilty of obstructing official business.” State v. Harris, 9th Dist. Summit No. 27639, 2015-Ohio-
5378, ¶ 7, quoting North Ridgeville v. Reichbaum, 112 Ohio App.3d 79, 84 (9th Dist.1996).
“The ‘mere failure to obey a law enforcement officer’s request may not amount to obstruction.’”
Harris, quoting State v. Griffin, 9th Dist. Summit No. 19278, 1999 WL 334781, *2 (May 26,
1999). That said, this Court has stated that “failing to comply with an officer’s order may 12
constitute obstruction under some circumstances.” State v. Keagle, 9th Dist. Summit Nos. 29045
29056, 2019-Ohio-3975, ¶ 21. “[A] suspect may indeed obstruct official business when he
creates a significant delay by ignoring an officer’s repeated orders, thereby impeding the
officer’s ability to perform his lawful duties.” Id., quoting State v. Moss, 9th Dist. Summit No.
28986, 2018-Ohio-4747, ¶ 12.
{¶36} Here, the officers testified that they told Seibert he was under arrest more than
once, but he refused to comply with the arrest. They testified that they eventually convinced him
to walk from the apartment door to the parking lot, but that he was verbally aggressive and
continued to refuse to comply with the arrest. An officer testified that this delayed the arrest by
as much as 30 minutes, and that Seibert’s actions impeded their ability to perform their lawful
duties. Viewing this evidence in a light most favorable to the State, a rational trier of fact could
have found the essential elements of obstructing official business proven beyond a reasonable
doubt. See Keagle at ¶ 22. Seibert’s argument, therefore, lacks merit.
{¶37} In light of the foregoing, Seibert’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED IN DENYING SEIBERT’S ORAL MOTION FOR A MISTRIAL.
{¶38} In his second assignment of error, Seibert argues that the trial court erred by
denying his motion for a mistrial in the First Case. He argues that, during their testimony in the
First Case, Father and Jeffrey referred to facts from the Second Case. He also argues that the
State referred to facts from the Second Case during its closing argument in the First Case.
Seibert concludes that these improper references warranted a mistrial because they may have
given the jury the impression that he and Father argued in the past. For the reasons that follow, 13
we conclude that the trial court did not abuse its discretion by denying Seibert’s motion for
mistrial.
{¶39} This Court has explained our standard of review on a motion for a mistrial as
follows:
We review a trial court’s decision denying a motion for a mistrial for an abuse of discretion. State v. Horne, 9th Dist. Summit No. 25238, 2011-Ohio- 1901, ¶ 18. “Mistrials need be declared only when the ends of justice so require and a fair trial is no longer possible. The essential inquiry on a motion for mistrial is whether the substantial rights of the accused are adversely affected.” (Internal quotations and citations omitted.) State v. Edwards, 9th Dist. Summit No. 28164, 2017-Ohio-7231, ¶ 13. “In determining whether a defendant was deprived of a fair trial, a court must determine whether, absent the error or irregularity, the jury would have found the appellant guilty beyond a reasonable doubt.” (Internal quotations omitted.) Id. “To determine whether the alleged misconduct resulted in prejudice, a court must consider (1) the nature of the error, (2) whether an objection was made, (3) whether the trial court provided corrective instructions, and (4) the strength of the evidence against the defendant.” Id.
State v. Grether, 9th Dist. Summit No. 28977, 2019-Ohio-4243, ¶ 25.
{¶40} Regarding Father’s testimony, Seibert asserts that Father testified in the First Case
that he and Seibert got into an argument after he (Father) got out of the shower. Seibert asserts
that this was a reference to the Second Case. The record reflects that defense counsel objected at
trial, and the trial court called for a recess. After the recess, the trial court instructed the jury to
disregard Father’s testimony about his interactions with Seibert after he (Father) got out of the
shower. It further instructed the jury to not consider that testimony for any purpose. When
Seibert’s defense counsel moved for a mistrial, the trial court acknowledged that it has already
instructed the jury to disregard that testimony.
{¶41} While Seibert argues that Father’s testimony was highly prejudicial and may have
given the jury the impression that he and Father argued in the past, we conclude that the trial
court did not abuse its discretion by denying his motion for a mistrial relative to Father’s 14
testimony. Father’s reference to facts from the Second Case was brief, and the trial court
instructed the jury to disregard that testimony and to not consider it for any purpose. “It is
presumed that the jury followed the court’s instructions.” State v. Mammone, 139 Ohio St.3d
467, 2014-Ohio-1942, ¶ 147. Moreover, given the strength of the remaining testimony
presented, we cannot say that Seibert suffered prejudice. Grether at ¶ 25.
{¶42} Regarding Jeffrey’s testimony, Seibert asserts that Jeffrey testified that Father
“came over to his apartment and told him to call the police.” He then concludes that “[t]hese are
the facts of [the Second Case], not of this case.” In the Second Case, however, Father testified
that he called Jeffrey and asked him to come help him up off the floor. Jeffrey testified similarly.
This Court fails to see how Jeffrey’s testimony as cited in Seibert’s merit brief was a reference to
the Second Case. We note, however, that Seibert’s argument to the trial court on this issue was
different than his argument on appeal.
{¶43} When Seibert’s defense counsel moved for a mistrial, the trial court clarified that
defense counsel’s challenge to Jeffrey’s testimony was that Jeffrey testified that Father called
him and asked him to call the police, yet Father testified that he (Father) walked to Jeffrey’s
apartment and asked him to call the police because he (Father) did not have his phone. While
not entirely clear from the discussion on the record, the inference was that Jeffrey was testifying
about the Second Case because Father testified that he called Jeffrey in the Second Case. The
trial court noted that this was not “brought to the direct attention of the jury for the specific
reason of not drawing attention to the fact that a second circumstance exists where [Seibert] is
charged with another crime for another incident.” The trial court then indicated that it did not
believe the jury had been tainted or would be unable to reach a fair verdict in light of the other
testimony presented. It then offered to give the jury a limiting instruction, which Seibert’s 15
defense counsel declined, reasoning that a limiting instruction would simply draw attention to the
improper testimony.
{¶44} We conclude that Seibert has not established that the trial court erred by denying
his motion for a mistrial relative to Jeffrey’s testimony. Seibert’s argument on appeal is more
limited than his defense counsel’s argument at trial. His limited argument on appeal does not
support a conclusion that Jeffrey’s testimony was a reference to the Second Case. Even
assuming Jeffrey’s testimony as cited in Seibert’s merit brief was a reference to the Second Case,
we conclude that it did not warrant a mistrial under these facts. The reference was brief, and
defense counsel did not object during trial. Moreover, defense counsel declined a limiting
instruction, reasoning that it would only draw attention to the allegedly improper reference to
facts from the Second Case. Given the strength of the remaining testimony presented, we cannot
say that Seibert suffered prejudice as a result of this alleged irregularity. Grether, 2019-Ohio-
4243, at ¶ 25.
{¶45} Lastly, regarding the prosecutor’s alleged references to facts from the Second
Case during her closing argument, Seibert has not explained what those references were, nor has
he provided a citation to the record. See App.R. 16(A)(7) (requiring an appellant’s brief to
include “[a]n argument containing the contentions of the appellant with respect to each
assignment of error presented for review and the reasons in support of the contentions, with
citations to the authorities, statutes, and parts of the record on which appellant relies.”). When
Seibert’s defense counsel moved for a mistrial, the prosecutor indicated that, per a discussion in
chamber, any reference to the Second Case during her closing argument was inadvertent.
{¶46} We conclude that Seibert has not established that the trial court erred by denying
his motion for a mistrial relative to the prosecutor’s alleged references to facts from the Second 16
Case during her closing argument. As previously noted, Seibert has not identified what those
references were, nor has he provided a citation to the record in support of his position. The trial
transcript indicates that the parties discussed this issue in chambers, but that discussion is not a
part on the record on appeal. This Court will not identify, and then evaluate, those allegedly
improper references on Seibert’s behalf. State v. Dawson, 9th Dist. Summit No. 28311, 2017-
Ohio-2833, ¶ 15, citing App.R. 16(A)(7) (“This Court will not construct an argument on [the
appellant’s] behalf.”).
{¶47} In light of the foregoing, Seibert’s second assignment of error is overruled.
III.
{¶48} Seibert’s assignments of error are overruled. The judgment of the Wayne County
Municipal Court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Wayne County
Municipal Court, County of Wayne, State of Ohio, to carry this judgment into execution. A
certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30. 17
Costs taxed to Appellant.
DONNA J. CARR FOR THE COURT
TEODOSIO, J. SUTTON, J. CONCUR.
APPEARANCES:
WESLEY A. JOHNSTON, Attorney at Law, for Appellant.
DANIEL R. LUTZ, Prosecuting Attorney, and ANDREA D. UHLER, Assistant Prosecuting Attorney, for Appellee.