State v. Sherman

2025 Ohio 5792

Opinion

[Cite as State v. Sherman, 2025-Ohio-5792.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO, Case No. 25CA00036

Plaintiff - Appellee Opinion & Judgment Entry

-vs- Appeal from the Licking County Municipal Court, Case No. 25 CRB 00116 MISTY M. SHERMAN, Judgment: Affirmed Defendant - Appellant Date of Judgment: December 29, 2025

BEFORE: William B. Hoffman; Kevin W. Popham; David M. Gormley, Judges

APPEARANCES: Tricia M. Moore, Law Director for the City of Newark, Ohio, for Plaintiff-Appellee; Todd W. Barstow, Newark, Ohio, for Defendant-Appellant.

Gormley, J.

{¶1} Defendant Misty Sherman appeals her conviction at a jury trial on one

misdemeanor charge of violating a protection order. Sherman argues that her conviction

was not supported by sufficient evidence, that her conviction was against the manifest

weight of the evidence, and that the trial court erred by incorrectly instructing the jury on

the term “recklessly.” For the reasons explained below, we affirm the trial court’s

judgment.

The Key Facts

{¶2} Misty Sherman was ordered in 2023 to refrain from any contact with her

cousin, Aimee Watson. The court that issued that civil protection order directed Sherman

to remain at least 500 feet from Watson and to immediately leave any area where she

inadvertently encountered Watson. {¶3} The protection order was still in effect in January 2025, when Watson —

while working as a housing specialist for a behavioral-health company — went to Licking

Memorial Hospital to pick up a client. She waited in the parking lot in her personal vehicle

— a red pickup truck — which she had owned for about five months. While waiting,

Watson noticed Sherman drive into the parking lot and park less than 500 feet from her.

Watson testified at Sherman’s trial that Sherman saw her and that a passenger exited

Sherman’s vehicle and waved to her.

{¶4} Watson called 911 and, while waiting for the police to arrive, used her cell

phone to take photographs and video footage of Sherman’s vehicle. Watson then left the

hospital parking lot in her vehicle. Sherman, in her own vehicle, followed Watson for a

short distance before turning onto a side street.

{¶5} Later that day, Watson filed a report at the offices of the Newark Division of

Police. Officer Fumi then came to Watson’s home to interview her and collect the

photographs and videos. Fumi also spoke with Sherman by telephone that evening.

Sherman told Fumi that she had gone to the hospital to visit a sick relative. Sherman said

that she saw a truck in the parking lot that looked like Watson’s, but she was not certain

it was Watson’s vehicle. Sherman told the officer that she confirmed that Watson was

the driver of the red pickup truck only when Watson began taking videos and photographs.

Sherman said that she then decided to leave and ended up behind Watson on the

roadway, after which she turned onto a side street.

{¶6} Officer Rubio also came to Watson’s home to discuss the encounter.

Watson showed Rubio screenshots from Sherman’s Facebook account that Watson had

received from her aunt. In those Facebook posts by Sherman, she admitted to being in the hospital parking lot and seeing Watson there. Sherman said on Facebook that she

was at the hospital to visit an ailing relative and that she remained in her car once she

saw Watson filming and photographing her. Sherman’s online posts were not sent

directly to Watson, and Sherman did not ask anyone to share them with Watson.

{¶7} Sherman was charged with one misdemeanor count of violating a protection

order. A jury found her guilty on that charge, and Sherman now appeals.

Sherman’s Conviction Was Supported by Sufficient Evidence

{¶8} In her first assignment of error, Sherman contends that the jury’s verdict

was not supported by sufficient evidence.

{¶9} “When reviewing the sufficiency of the evidence, an appellate court does

not ask whether the evidence should be believed but, rather, whether the evidence, ‘if

believed, would convince the average mind of the defendant’s guilt beyond a reasonable

doubt.’” State v. Pountney, 2018-Ohio-22, ¶ 19, quoting State v. Jenks, 61 Ohio St.3d

259 (1991), paragraph two of the syllabus. “‘The relevant inquiry is whether, after viewing

the evidence in the 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.’”

State v. Howell, 2020-Ohio-174, ¶ 28 (5th Dist.), quoting Pountney at ¶ 19. A “verdict will

not be disturbed unless the appellate court finds that reasonable minds could not reach

the conclusion reached by the trier-of-fact.” State v. Dennis, 79 Ohio St.3d 421, 430

(1997).

{¶10} The R.C. 2919.27(A)(1) charge in this case required the State to prove that

Sherman recklessly violated the terms of a protection order. And to prove that mental

state of recklessness, the State, according to R.C. 2901.22(C), had to show that Sherman, with heedless indifference to the consequences, disregarded a substantial and

unjustifiable risk that her conduct was likely to cause a certain result or was likely to be of

a certain nature.

{¶11} The terms of the protection order required Sherman to remain at least 500

feet from Watson and to immediately leave any area where she inadvertently encountered

Watson. The State presented evidence indicating that Sherman parked near Watson in

the hospital parking lot. Even if Sherman initially did not realize that the red truck

belonged to Watson, her statement to Officer Fumi supported the State’s view that

Sherman knew that Watson was the truck’s driver when Sherman chose to follow

Watson’s vehicle out of the parking lot. Officer Fumi also testified that there were multiple

ways to leave the parking lot and that Sherman could have turned in three different

directions at an intersection nearby. Instead, Sherman continued to follow Watson

through that intersection before turning onto a side street.

{¶12} Viewing the evidence in a light most favorable to the prosecution, we

conclude that a rational trier of fact could have found that the State proved each element

of the offense beyond a reasonable doubt. Sherman’s awareness of Watson’s presence

and her decision to pull directly behind Watson’s vehicle at the intersection — despite

having other options available — provided sufficient evidence for the jury to conclude that

Sherman recklessly violated the terms of the protection order. Sherman’s first

assignment of error is overruled.

Sherman’s Conviction Was Not Against the Manifest Weight of the Evidence

{¶13} In her second assignment of error, Sherman contends that the trial court’s

verdict was against the manifest weight of the evidence. {¶14} “In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the ‘thirteenth juror,’ and after ‘reviewing the

entire record, weighs the evidence and all reasonable inferences, considers the credibility

of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly

lost its way and created such a manifest miscarriage of justice that the conviction must

be overturned and a new trial ordered.’” State v. Hane, 2025-Ohio-120, ¶ 20 (5th Dist.),

quoting State v. Thompkins, 78 Ohio St.3d 380, 387 (1997).

{¶15} “In weighing the evidence, the court of appeals must always be mindful of

the presumption in favor of the finder of fact.” State v. Butler, 2024-Ohio-4651, ¶ 75 (5th

Dist.). “‘The underlying rationale of giving deference to the findings of the trial court rests

with the knowledge that the [trier of fact] is best able to view the witnesses and observe

their demeanor, gestures and voice inflections, and use these observations in weighing

the credibility of the proffered testimony.’” State v. Williams, 2024-Ohio-5578, ¶ 61 (5th

Dist.) (Bracketed text in original.), quoting Seasons Coal Co., Inc. v. City of Cleveland, 10

Ohio St.3d 77, 80 (1984). “[A]n appellate court will leave the issues of weight and

credibility of the evidence to the factfinder, as long as a rational basis exists in the record

for its decision.” State v. Sheppard, 2025-Ohio-161, ¶ 66 (5th Dist.).

{¶16} Sherman’s conviction was not against the manifest weight of the evidence.

The evidentiary conflict that Sherman points to arises from her statement to Officer Fumi

that she was unsure whether the red pickup truck in the parking lot belonged to Watson

until Watson began taking photos with a cell phone.

{¶17} The additional evidence presented at trial, however, weighs in favor of the

prosecution. Even if Sherman was at first unsure about the identity of the person in the red truck, once Sherman realized that Watson was in fact that person, Sherman chose to

leave at the same time and chose not to take an alternative exit route. Sherman had —

as Fumi testified — multiple exit options available to her. Despite this, Sherman followed

Watson from the parking lot to a traffic light and then continued from there to drive behind

Watson before turning onto a side street. Further, Sherman’s Facebook posts bolster the

State’s view that she chose to remain in the parking lot even after she realized that she

was within 500 feet of Watson.

{¶18} In reaching a guilty verdict, the jury did not lose its way or bring about a

manifest miscarriage of justice. A rational basis exists in the record to support the jury’s

resolution of any conflicts in the evidence. Sherman’s conviction, therefore, was not

against the manifest weight of the evidence. Sherman’s second assignment of error is

overruled.

The Trial Court’s Mistaken Use of an Outdated Jury Instruction Did Not Affect the Outcome of the Trial

{¶19} In her third assignment of error, Sherman contends that the trial court

committed plain error by failing to correctly instruct the jury on the mental state of

recklessness.

{¶20} Ohio law recognizes a distinction between alleged errors to which a

defendant objects at trial and those that he or she fails to raise then. State v. Jones,

2020-Ohio-3051, ¶ 17. “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.”

Crim.R. 30(A). {¶21} “When the defendant forfeits the right to assert an error on appeal by failing

to bring it to the trial court’s attention in the first instance, an appellate court applies plain-

error review.” Jones at ¶ 17, citing State v. Rogers, 2015-Ohio-2459, ¶ 21-22; see also

Crim.R. 52(B). Under a plain-error review, the defendant bears the burden of “‘showing

that but for a plain or obvious error, the outcome of the proceeding would have been

otherwise, and reversal must be necessary to correct a manifest miscarriage of justice.’”

Id., quoting State v. Quarterman, 2014-Ohio-4034, ¶ 16. A reviewing court should “notice

plain error ‘with the utmost caution, under exceptional circumstances and only to prevent

a manifest miscarriage of justice.’” State v. Barnes, 94 Ohio St.3d 21, 27 (2002), quoting

State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the syllabus.

{¶22} Because Sherman did not object to the jury instructions, we review them

solely for plain error.

{¶23} The trial judge instructed the jury as follows:

[A] person acts recklessly when, with heedless indifference to the

consequences, she perversely disregards a known risk that her conduct is

likely to cause a certain result or be of a certain nature. A person is reckless

with respect to circumstances when, with heedless indifference to the

consequences, she perversely disregards a known risk that such

circumstances are likely to exist.

{¶24} That instruction, employing language that was removed from R.C.

2901.22(C)’s definition of recklessness in 2015, was outdated. Under the current version

of the statute that took effect 10 years ago, a person is reckless when he or she “disregards a substantial and unjustifiable risk.” Gone from the current statutory definition

of recklessness is any reference to “perversely disregard[ing] a known risk.”

{¶25} Of course, the trial court should have instructed the jury on the current

definition of recklessness rather than using the outdated version. Yet, Sherman has failed

to demonstrate that the outcome of her trial clearly would have been different had the

correct instruction been given.

{¶26} In our view, the evidence supported Sherman’s conviction under both the

former and current definitions of recklessness. Sherman was aware of Watson’s

presence and made a conscious decision to remain in the parking lot when she thought

that the red truck might have belonged to Watson. Even after that, Sherman followed

Watson to a traffic light and beyond despite knowing that Watson was in fact in that truck.

This conduct demonstrated — at minimum — a disregard of a risk, whether that risk was

a known risk or a substantial and unjustifiable one. See State v. Pulley, 2023-Ohio-3277,

¶ 120 (2d Dist.) (finding no prejudice where the trial court gave the same outdated jury

instruction for recklessness).

{¶27} Sherman has not shown that the erroneous jury instruction affected her

substantial rights or that the error created a manifest miscarriage of justice. The evidence

supporting Sherman’s conviction was substantial, and the record demonstrates that the

jury’s verdict would not have been different had the trial court used the correct definition

from R.C. 2901.22(C). Sherman’s third assignment of error is overruled. {¶28} For the reasons explained above, the judgment of the Licking County

Municipal Court is affirmed. Costs are to be paid by Appellant Misty M. Sherman.

By: Gormley, J.;

Hoffman, P.J. and

Popham, J. concur.