[Cite as State v. Garrison, 2018-Ohio-463.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. John W. Wise, P.J.
        Plaintiff-Appellee                         Hon. William B. Hoffman, J.
                                                   Hon. Craig R. Baldwin, J.
-vs-
                                                   Case No. CT2017-0018
STEPHEN M. GARRISON

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Muskingum County Court
                                               of Common Pleas, Case No. CR2016-0373


JUDGMENT:                                      Affirmed

DATE OF JUDGMENT ENTRY:                         February 2, 2018

APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

D. MICHAEL HADDOX                              TONY A. CLYMER
Prosecuting Attorney                           1420 Matthias Drive
Muskingum County, Ohio                         Columbus, Ohio 43224

By: GERALD V. ANDERSON II
Assistant Prosecuting Attorney
Muskingum County, Ohio
27 North Fifth St., P.O. Box 189
Zanesville, Ohio 43702-0189
Muskingum County, Case No. CT2017-0018                                                  2

Hoffman, J.


      {¶1}    Appellant Stephen M. Garrison appeals the judgment entered by the

Muskingum County Common Pleas Court convicting him of domestic violence (R.C.

2919.25(A)) and sentencing him to thirty-six months incarceration. Appellee is the state

of Ohio.

                          STATEMENT OF THE FACTS AND CASE

      {¶2}    On November 8, 2016, Appellant and his girlfriend of twelve years, N.D.,

were watching The Walking Dead on television at their neighbor’s apartment. N.D.

walked back to the apartment she shared with Appellant and their two children to get

something to drink. Her friend Miranda Hardy came to the apartment and showed N.D.

a conversation on her phone between Hardy and Appellant in which they were sexting.

      {¶3}    N.D. confronted Appellant about the phone messages. Appellant denied it,

became upset, and spit in N.D.’s face. He grabbed the phone from N.D. and grabbed her

left arm, leaving a bruise. He shoved her against a wall and scratched her, and also threw

tea on her shirt. After Appellant spit in her face, N.D. grabbed Appellant’s genitalia and

punched him.

      {¶4}    Hardy witnessed Appellant grabbing N.D.’s arm and pushing her down the

hallway. N.D. asked Hardy to call 911.

      {¶5}    Deputy Brandon Hamilton responded to the 911 call. When he arrived on

the scene, N.D. was frantic and pacing. He noticed bruising on the inside of N.D.’s arm.

He took photographs of her arm, a scratch on her stomach, and the tea on her shirt.
Muskingum County, Case No. CT2017-0018                                                       3


       {¶6}   Appellant was indicted by the Muskingum County Grand Jury with one count

of domestic violence with two prior offenses, a felony of the third degree. The case

proceeded to jury trial.

       {¶7}   Appellant testified at trial did not hit, push, or attack N.D. He denied spitting

in her face, claiming due to a partial plate, he cannot spit without his tooth coming out.

He testified he contacted Hardy about N.D.’s allegations Hardy and her boyfriend stole

something from N.D. and Appellant. When N.D. became upset with him for contacting

Hardy, he went to the neighbor’s apartment to stop the argument.          Eventually he went

back to the apartment to get cigarette money from N.D. N.D. met him in the hallway,

where she called him a liar and a cheat, punched him in the throat, and grabbed his

genitals and squeezed.

       {¶8}   Appellant was convicted as charged and sentenced to thirty-six months

incarceration. From the March 9, 2017 judgment of conviction and sentence Appellant

prosecutes his appeal, assigning as error:




              I. THE TRIAL COURT ERRED BY ADMITTING STATE’S EXHIBITS

       ONE THROUGH FIVE SINCE THE PHOTOGRAPHS DID NOT

       ACCURATELY          DEPICT     THE     CONTENTS        IN    VIOLATION       OF

       APPELLANT’S RIGHT TO A FAIR AND IMPARTIAL TRIAL.

              II. THE TRIAL COURT VIOLATED APPELLANT’S RIGHTS TO DUE

       PROCESS AND A FAIR TRIAL WHEN IT FAILED TO GIVE A JURY

       INSTRUCTION AS TO THE LESSER-INCLUDED OFFENSE OF
Muskingum County, Case No. CT2017-0018                                                 4


       DISORDERLY CONDUCT OR A JURY INSTRUCTION OF SELF-

       DEFENSE WHEN THE EVIDENCE AT TRIAL WARRANTED BOTH.

              III. THE APPELLANT WAS DEPRIVED OF THE EFFECTIVE

       ASSISTANCE OF COUNSEL CONTRARY TO THE STATE AND

       FEDERAL CONSTITUTIONS.

              IV. THE GUILTY VERDICT FOR DOMESTIC VIOLENCE AGAINST

       APPELLANT WAS AGAINST THE MANIFEST WEIGHT OF THE

       EVIDENCE AND CONTRARY TO LAW.

              V. THE TRIAL COURT PLAINLY ERRED IN IMPOSING THE

       MAXIMUM SENTENCE FOR APPELLANT’S CONVICTION RENDERING

       THE SENTENCE CONTRARY TO LAW.

              VI. THE TRIAL COURT PLAINLY ERRED IN ASSESSING COURT

       COSTS      AGAINST      APPELLANT      WITHOUT      INQUIRING      ABOUT

       APPELLANT’S PRESENT OR FUTURE ABILITY TO MAKE THE

       PAYMENTS AND SINCE THE IMPOSITION OF COURT COSTS MAY

       NOT     BE    IMPOSED         UPON   DEFENDANTS        AS    CRIMINALLY

       ENFORCEABLE SANCTIONS BUT MUST BE PURSUED IN CIVIL

       COLLECTION PROCEEDINGS.



                                               I.

       {¶9}   Appellant argues the court erred in admitting the photographs of N.D. taken

at the scene by Deputy Brandon Hamilton because the testimony established they did not

accurately depict N.D.’s injuries.
Muskingum County, Case No. CT2017-0018                                                    5


        {¶10} Evid. R. 901(A) provides, “The requirement of authentication or

identification as a condition precedent to admissibility is satisfied by evidence sufficient

to support a finding that the matter in question is what its proponent claims.” Accordingly,

a photograph is admissible in evidence if it is shown to be an accurate representation of

what or whom it purports to represent. State v. Hannah, 54 Ohio St.2d 84, 88, 374 N.E.2d

1359, 1362–63 (1978). “A duplicate is admissible to the same extent as an original unless

(1) a genuine question is raised as to the authenticity of the original or (2) in the

circumstances it would be unfair to admit the duplicate in lieu of the original.” Evid. R.

1003.

        {¶11} The photographs admitted into evidence were copies of the original

photographs taken by Deputy Hamilton. Dep. Hamilton initially testified the photographs

were a fair and accurate depiction of N.D. on the night in question. Tr. 193. However, he

later noted the photographs did not show the tea he observed on her shirt, and did not

depict the scratch. Tr. 194,195.

        {¶12} On cross-examination, the deputy testified the copies were not as clear as

the photographs he took because they were missing the stains on her shirt and the

scratch on her stomach, and the bruise on her arm appeared darker in real life than on

the copy of the photograph. Tr. 204, 207. He testified the pictures were accurate, but

the quality was not good. Tr. 205. However, on further questioning, he testified the

photos were not an accurate depiction of what she looked like on the night in question.

Tr. 206. Finally, on redirect examination, he testified the photographs were not as clear

as what they should be. Tr. 219.
Muskingum County, Case No. CT2017-0018                                                     6


       {¶13} Appellant objected to admission of the photographs on the basis they were

not accurate. The court admitted the photographs, stating, “The accuracy will have to be

argued.” Tr. 237.

       {¶14} Unless the defendant has been materially prejudiced by the improper

admission of evidence, an appellate court should not disturb the decision of the trial court.

State v. Barnes, 94 Ohio St.3d 21, 2002-Ohio-68, 759 N.E.2d 1240 (2002). Assuming

arguendo admission of the photographs was error, Appellant has not demonstrated

prejudice from their admission. The deputy testified the photographs did not accurately

depict the extent of her bruising, nor the existence of tea on her shirt and a scratch on her

stomach. Admission of photographs depicting less serious and fewer injuries than those

testified to by N.D. was not prejudicial to Appellant’s case, and Appellant has not

demonstrated prejudicial error.

       {¶15} The first assignment of error is overruled.



                                                 II.

       {¶16} In his second assignment of error, Appellant argues the trial court

committed plain error in failing to instruct the jury on the lesser-included offense of

disorderly conduct and the defense of self-defense.

       {¶17} Appellant concedes he did not request an instruction on the lesser-included

offense of disorderly conduct or on self-defense. Failure to object before the jury retires,

absent plain error, constitutes waiver. State v. Williford, 49 Ohio St.3d 247, 551 N.E.2d

1279 (1990). The Ohio Supreme Court has recently clarified the standard of review for

plain error:
Muskingum County, Case No. CT2017-0018                                                    7




            Crim.R. 52(B) affords appellate courts discretion to correct “[p]lain

     errors or defects affecting substantial rights” notwithstanding an accused's

     failure to meet his obligation to bring those errors to the attention of the trial

     court. However, the accused bears the burden to demonstrate plain error

     on the record, State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034,

     19 N.E.3d 900, ¶ 16, and must show “an error, i.e., a deviation from a legal

     rule” that constitutes “an ‘obvious' defect in the trial proceedings,” State v.

     Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).

            Even if the error is obvious, it must have affected substantial rights,

     and “[w]e have interpreted this aspect of the rule to mean that the trial

     court's error must have affected the outcome of the trial.” Id. We recently

     clarified in State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d

     860, that the accused is “required to demonstrate a reasonable probability

     that the error resulted in prejudice—the same deferential standard for

     reviewing ineffective assistance of counsel claims.” (Emphasis sic.) Id. at ¶

     22, citing United States v. Dominguez Benitez, 542 U.S. 74, 81–83, 124

     S.Ct. 2333, 159 L.Ed.2d 157 (2004).

            If the accused shows that the trial court committed plain error

     affecting the outcome of the proceeding, an appellate court is not required

     to correct it; we have “admonish[ed] courts to notice plain error ‘with the

     utmost caution, under exceptional circumstances and only to prevent a

     manifest miscarriage of justice.’ ” (Emphasis added.) Barnes at 27, 759
Muskingum County, Case No. CT2017-0018                                                     8

       N.E.2d 1240, quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804

       (1978), paragraph three of the syllabus.

       State v. Thomas, 2017-Ohio-8011, ¶¶ 32-34.



       {¶18} A trial court is required to instruct on a lesser-included offense only where

the evidence at trial would reasonably support both an acquittal on the crime charged and

a conviction upon the lesser-included offense. State v. Deanda, 136 Ohio St.3d 18, 2013–

Ohio–1722.

       {¶19} Appellant argues he was entitled to an instruction on the lesser-included

offense of disorderly conduct as defined by R.C. 2917.11(A)(1), “No person shall

recklessly cause inconvenience, annoyance, or alarm to another by…[e]ngaging in

fighting, in threatening harm to persons or property, or in violent or turbulent behavior[.]”

He was convicted of domestic violence in violation of R.C. 2919.25(A), which provides,

“No person shall knowingly cause or attempt to cause physical harm to a family or

household member.”

       {¶20} Appellant argues it is uncontroverted N.D. punched him in the throat and

grabbed his groin, which fits in the definition of fighting. However, he testified he did not

engage in fighting, and simply withstood her attack. Therefore, the evidence does not

reasonably support an acquittal of domestic violence and a conviction upon the lesser

included offense of domestic violence. Appellant has not demonstrated plain error in the

court’s failure to sua sponte instruct the jury on disorderly conduct.

       {¶21} Appellant also argues the court committed plain error in failing to instruct

the jury on self-defense. In order to establish the affirmative defense of self-defense, the
Muskingum County, Case No. CT2017-0018                                                      9


Appellant generally has to show three elements: (1) the defendant was not at fault in

creating the violent situation; (2) the defendant has a bona fide belief that he was in

imminent danger of death or great bodily harm and that his only means of escape was

the use of force; and (3) the defendant did not violate any duty to retreat. State v. Robbins,

58 Ohio St.2d 74, 388 N.E.2d 755 (1979).

       {¶22} In State v. Perry, 5th Dist. Richland No. 02-CA-77, 2003-Ohio-6097, the

defendant argued the court erred in failing to instruct the jury on self-defense in his

domestic violence prosecution. However, he testified at trial he never hit her. We

accordingly found no error in refusing to give the self-defense instruction. Id. at ¶27.

Likewise, we find no plain error here in the court’s failure to instruct the jury on self-

defense as Appellant testified he did not touch N.D.

       {¶23} The second assignment of error is overruled.



                                                 III.

       {¶24} In his third assignment of error, Appellant argues his trial counsel was

ineffective.

       {¶25} A properly licensed attorney is presumed competent. State v. Hamblin, 37

Ohio St.3d 153, 524 N.E.2d 476 (1988). Therefore, in order to prevail on a claim of

ineffective assistance of counsel, appellant must show counsel's performance fell below

an objective standard of reasonable representation and but for counsel’s error, the result

of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668,

104 S.Ct. 2052, 80 L.Ed.2d 674(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d

373 (1989). In other words, appellant must show that counsel’s conduct so undermined
Muskingum County, Case No. CT2017-0018                                                     10


the proper functioning of the adversarial process that the trial cannot be relied upon as

having produced a just result. Id.

       {¶26} Appellant first argues counsel was ineffective in failing to tell the jury during

voir dire or opening statement they must acquit if the State failed to prove any element of

the offense. The trial court instructed the jury, “The Defendant must be acquitted unless

the State produces evidence which convinces you beyond a reasonable doubt of every

essential element of the offense charged in the indictment.” Tr. 347. A jury is presumed

to follow the instructions given it by a trial judge. E.g., State v. Garner, 74 Ohio St.3d 49,

1995-Ohio-168, 656 N.E.2d 623. Therefore, Appellant has not demonstrated if counsel

had raised this issue to the jury during voir dire or opening statement, the result of the

proceeding would have been different.

       {¶27} Appellant next argues counsel was ineffective in failing to follow up

regarding witness Phil Smith’s testimony he was confused as to how the victim would

have a bruise so quickly after the incident. Appellant argues instead of giving up after the

court sustained objections on the basis of foundation and speculation, counsel should

have attempted to lay a proper foundation regarding Smith’s knowledge of bruising. He

argues the error became more prejudicial when counsel failed to object to testimony from

Deputy Hamilton regarding his opinion the bruise appeared to be fresh. The record does

not demonstrate had counsel questioned Smith further, she would have been able to lay

a foundation for Smith to express an opinion the bruise did not appear fresh. Appellant

has not demonstrated prejudice.

       {¶28} Appellant argues counsel failed to file a motion for appointment of a medical

expert to review the photographs. Appellant concedes we have no way of knowing if the
Muskingum County, Case No. CT2017-0018                                                      11


opinion of an appointed medical expert would be favorable to him or prejudicial to him,

and therefore he has not demonstrated a reasonable probability of a change in the

outcome had counsel sought appointment of an expert.

       {¶29} Next Appellant argues counsel erred in continuing to cross-examine Deputy

Hamilton regarding the accuracy of the photographs after eliciting testimony the pictures

did not accurately depict the injuries. He specifically argues the following question was

ineffective:



               Q: Are you asking the jury to believe your testimony over what is

       depicted in those photographs in your hand?

               A: I would just like to see better quality photographs, is all I’m saying.

       Tr. 208.



       {¶30} The question followed counsel’s cross-examination of the officer concerning

whether he could recall independently what N.D.’s bruises looked like when he had

responded to about 150 calls after this incident. Appellant further argues counsel engaged

in unnecessary cross-examination of Deputy Hamilton regarding his experience with

bruising and his memory of the appearance of the scratch on her stomach. He argues

this allowed the jury to hear cumulative evidence which bolstered the State’s case.

       {¶31} Trial counsel's decision to cross-examine a witness and the extent of such

cross-examination are tactical matters. State v. Diaz, 9th Dist. Lorain No. 04CA008573,

2005-Ohio-3108, ¶ 26. As such, decisions regarding cross-examination cannot form the
Muskingum County, Case No. CT2017-0018                                                 12

basis for a claim of ineffective assistance of counsel. Id. Appellant has not demonstrated

counsel was ineffective in the cross-examination of Deputy Hamilton.

      {¶32} Appellant argues counsel was ineffective by stipulating to his two prior

convictions rather than requiring the State to call witnesses from Logan County to

authenticate the judgments. The decision to stipulate to prior convictions may be sound

trial strategy, avoiding testimony which further emphasized Appellant’s prior record. See

State v. Blackburn, 11th Dist. Trumbull No. 2001-T-0052, 2003-Ohio-605, ¶ 39. Further,

Appellant has not demonstrated had counsel not entered the stipulation, the State would

have been unable to prove the prior convictions and the result of the proceeding would

have been different.

      {¶33} Appellant argues counsel was ineffective for calling Detective Steve Welker

as a witness and questioning him regarding his failure to obtain an interpreter before

talking to N.D., who is hearing impaired. It appears counsel called Welker to attempt to

demonstrate the police investigation and reports of the incident were incomplete. We

have reviewed the testimony of Detective Welker and the entire transcript, and although

Welker’s testimony was not particularly helpful to Appellant’s case, Appellant has not

demonstrated in the absence of Welker’s testimony, the result of the proceeding would

have been different.

      {¶34} Appellant argues during the cross-examination of Detective Welker,

counsel failed to object to speculative testimony. He argues without objection, Welker

testified N.D. knew someone in another apartment heard Appellant yelling at her, but

because the physical contact would not have been audible in another apartment, this

witness would not have added anything the police did not already know. Tr. 252-253.
Muskingum County, Case No. CT2017-0018                                                  13


Competent counsel may reasonably hesitate to object to potential errors in the jury's

presence because objections may be considered bothersome by the jury and may tend

to interrupt the flow of a trial. State v. Howell, 5th Dist. Delaware No. 15 CAA 12 0098,

2016-Ohio-7749, ¶ 39, appeal not allowed, 150 Ohio St.3d 1409, 2017-Ohio-6964, 78

N.E.3d 909. Thus counsel’s failure to object may have been sound trial strategy. Further,

Appellant has not demonstrated in the absence of this testimony concerning an unknown

possible witness, the result of the trial would have been different.

       {¶35} Appellant argues counsel was ineffective in putting him on the witness

stand. He argues his testimony allowed the prosecutor to cross-examine him concerning

his prior convictions, as well as allegations in a pending case against Appellant involving

N.D., and a prior case in which he was charged but not convicted.

       {¶36} The advice provided by counsel to his or her client regarding the decision

to testify is “a paradigm of the type of tactical decision that cannot be challenged as

evidence of ineffective assistance.” State v. Winchester, 8th Dist. Cuyahoga No. 79739,

2002-Ohio-2130, ¶ 12, citing Hutchins v. Garrison, 724 F.2d 1425, 1436 (C.A.4, 1983),

cert. denied, 464 U.S. 1065, 104 S.Ct. 750, 79 L.Ed.2d 207 (1984). See, also, Jones v.

Murray (C.A.4, 1991), 947 F.2d 1106, 1116, fn. 6. Nonetheless, a claim for ineffective

assistance of counsel may be successful if the record demonstrates the defendant's

decision whether or not to testify was the result of coercion. Id., citing Lema v. United

States, 987 F.2d 48, 52-53 (C.A.1, 1993).      Nothing in the record suggests Appellant’s

decision to testify was the result of coercion. A defendant in a criminal case has the due

process right to take the witness stand and to testify in his or her own defense. Rock v.

Arkansas, 483 U.S. 44, 51, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987). The record does not
Muskingum County, Case No. CT2017-0018                                                    14


demonstrate Appellant did not choose to testify of his own free will, and he therefore

cannot challenge his decision to testify as ineffective assistance of counsel.

       {¶37} Finally, Appellant argues counsel was ineffective for failing to request jury

instructions for the lesser-included offense of disorderly conduct or self-defense. As

discussed in Appellant’s second assignment of error earlier in this opinion, the evidence

in the case did not support either instruction. Appellant has not demonstrated had counsel

requested either instruction, the result of the proceeding would have been different.

       {¶38} The third assignment of error is overruled.



                                                IV.

       {¶39} In his fourth assignment of error, Appellant argues the conviction is against

the manifest weight of the evidence.

       {¶40} In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record,

weighs the evidence and all reasonable inferences, considers the credibility of witnesses,

and determines whether in resolving conflicts in 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. Thompkins, 78 Ohio St. 3d 380, 387, 1997-Ohio-52, 678

N.E.2d 541, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1983).

       {¶41} Appellant was convicted of domestic violence in violation of R.C.

2929.25(A), which provides, “No person shall knowingly cause or attempt to cause

physical harm to a family or household member.”
Muskingum County, Case No. CT2017-0018                                                    15


       {¶42} Appellant argues the photographs were not good quality, and questions

were raised concerning the freshness of the bruise on N.D.’s arm. He notes N.D. had

prior convictions for domestic violence and falsification, and admitted to punching

Appellant in the throat and grabbing his genitals. He takes issue with the lack of a deaf

interpreter when police arrived on the scene and spoke to N.D., and with the failure of the

police to also charge N.D. with domestic violence. He argues Hardy’s testimony is not

credible because she did not see N.D. punch or grab him, and the number of times he

spit on N.D. was unclear from the testimony.

       {¶43} N.D. and Hardy both testified Appellant spit on N.D., grabbed her arm,

pushed her, and threw tea on her. N.D. testified the bruise on her arm was caused by

Appellant. Hardy testified she saw Appellant grab N.D.’s arm in the same location as the

bruise.   Deputy Hamilton testified that in his recollection, the bruise was darker than it

appeared in the photograph, and it appeared to be fresh. While Phil Smith testified he

did not see the physical altercation between Appellant and N.D., Hardy testified he was

not there when Appellant put his hands on N.D. Based on the testimony presented at

trial, we do not find the jury lost its way in convicting Appellant of domestic violence, and

the judgment is not against the manifest weight of the evidence.

       {¶44} The fourth assignment of error is overruled.



                                                V.

       {¶45} In his fifth assignment of error, Appellant argues the court erred in

sentencing him to the maximum sentence of thirty-six months.
Muskingum County, Case No. CT2017-0018                                                    16


       {¶46} R.C. 2953.08(G)(2) sets forth the standard of review for all felony

sentences. State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002, ¶ 1. When hearing

an appeal of a trial court's felony sentencing decision, “[t]he appellate court may increase,

reduce, or otherwise modify a sentence that is appealed under this section or may vacate

the sentence and remand the matter to the sentencing court for resentencing.” R.C.

2953.08(G)(2).

       {¶47} Pursuant to R.C. 2953.08(G)(2), an appellate court may only “increase,

reduce, or otherwise modify a sentence * * * or may vacate the sentence and remand the

matter to the sentencing court for resentencing” if the court finds by clear and convincing

evidence “(a) [t]hat the record does not support the sentencing court's findings[,]” or “(b)

[t]hat the sentence is otherwise contrary to law.” R.C. 2953.08(G)(2)(a)-(b). “An appellate

court will not find a sentence clearly and convincingly contrary to law where the trial court

considers the principles and purposes of R.C. 2929.11, as well as the factors listed in

R.C. 2929.12, properly imposes postrelease control, and sentences the defendant within

the permissible statutory range.” State v. Ahlers, 12th Dist. Butler No. CA2015–06–100,

2016–Ohio–2890, ¶ 8, citing State v. Moore, 12th Dist. Clermont No. CA2014–02–016,

2014–Ohio–5191, ¶ 6.

       {¶48} Under R.C. 2929.11(A), the “overriding purposes” of felony sentencing are

to protect the public from future crime by the offender and others and to punish the

offender using the minimum sanctions the court determines accomplish those purposes

without imposing an unnecessary burden on state or local government resources. To

achieve these purposes, the sentencing court shall consider the need for incapacitating

the offender, deterring the offender and others from future crime, rehabilitating the
Muskingum County, Case No. CT2017-0018                                                     17


offender, and making restitution to the victim of the offense, the public, or both. R.C.

2929.11(A).

       {¶49} R.C. 2929.12 lists general factors which must be considered by the trial

court in determining the sentence to be imposed for a felony, and gives detailed criteria

which do not control the court's discretion but which must be considered for or against

severity or leniency in a particular case. The trial court retains discretion to determine the

most effective way to comply with the purpose and principles of sentencing as set forth in

R.C. 2929.11. R.C. 2929.12.

       {¶50} Among the various factors that the trial court must consider and balance

under R.C. 2929.12 are: (1) serious physical, psychological, or economic harm to the

victim as a result of the offense; (2) whether the offender has a history of criminal

convictions; (3) whether the offender has not responded favorably to sanctions previously

imposed by criminal convictions; and (4) whether the offender shows genuine remorse

for the offense. R.C. 2929.12.

       {¶51} R.C. 2929.11 and 2929.12 require consideration of the purposes of felony

sentencing, as well as the factors of seriousness and recidivism. See State v. Mathis, 109

Ohio St.3d 54, 846 N.E.2d 1, 2006–Ohio–855, ¶ 38.

       {¶52} Appellant argues the victim induced or facilitated the offense, he acted

under strong provocation from the victim and Miranda Hardy, he did not expect to cause

physical harm to N.D. by grabbing her arm, and there were substantial grounds to mitigate

his conduct, including the court’s failure to instruct the jury on the lesser-included offense

of disorderly conduct.
Muskingum County, Case No. CT2017-0018                                                  18


      {¶53} The judgment entry of sentencing recites the trial judge considered the

principles and purposes of sentencing under R.C. 2929.11 and balanced the seriousness

and recidivism factors under R.C. 2929.12. The court further noted in the judgment

Appellant was on community control at the time of the offense, he has three prior felony

convictions, there were minor children present at the time of the commission of the

offense, and Appellant was charged with two new felony offenses while on bond in the

instant case.

      {¶54} At the sentencing hearing, the trial court noted on the record:



                First, you were on community control out of Logan County at the time

      this occurred, for criminal nonsupport. And at that point in time, for a period

      of time from 3-3-15 through sometime in 2016, they didn’t know your

      whereabouts. They suspended your community control. They scheduled

      four hearings between August – between January of ’16 and August of ’16,

      which were never – were always continued. They did, on August the 24th

      of ’16, indicate that your community control was continued. Therefore, you

      were not being very cooperative on community control.

                You have three prior felonies; convictions.         These include

      intimidation of a witness, as well as a felony domestic violence, as well as

      trafficking in marijuana.

                You had attended the CBCF at one point in time. Though, you do

      not mention that at the presentence investigation in this case.
Muskingum County, Case No. CT2017-0018                                                  19


              Court also finds that at the time you were out on bond you resulted

      in new charges being filed against you and the revocation of your bond for

      aggravated burglary and domestic violence involving the same victim.

              Therefore, the Court finds that due to the relationship and the fact

      there were children present, your prior history, and your propensity to

      commit crimes, that the maximum sentence would be appropriate in this

      case.

      Sent. Tr. 9-10.



      {¶55} Based on the findings of the court, we find no error in imposition of the

maximum sentence in this case. The fifth assignment of error is overruled.




                                               VI.

      {¶56} Appellant argues the court erred in ordering him to pay court costs.

      {¶57} Appellant first argues the court erred in failing to inquire about his current

and future ability to pay costs, as he was represented by court-appointed counsel and

therefore clearly indigent.   The record demonstrates Appellant filed an affidavit of

indigency and counsel was appointed on December 2, 2016. However, retained counsel

entered an appearance on January 19, 2017.

      {¶58} Appellant relies on this Court’s opinion in State v. Walker, 5th Dist. Richland

No. 09CA88, 2016-Ohio-8615, ¶ 58, appeal not allowed, 149 Ohio St.3d 1420, 2017-

Ohio-4038, 75 N.E.3d 237, reconsideration denied, 150 Ohio St.3d 1412, 2017-Ohio-

6964, 78 N.E.3d 911, in which we held as follows:
Muskingum County, Case No. CT2017-0018                                                   20




             In State v. Joseph, 125 Ohio St.3d 76, 2010–Ohio–954, 926 N.E.2d

      278, the Supreme Court held that it is reversible error under Crim.R. 43(A)

      for a trial court to impose costs in its sentencing entry when it did not impose

      those costs in open court at the sentencing hearing. Id. at ¶ 22. The Court

      reasoned that the defendant was denied the opportunity to claim indigence

      and to seek a waiver of the payment of court costs before the trial court

      because the trial court did not mention costs at the sentencing hearing. Id.

      The same is true in the instant case. Here, appellant was not given an

      opportunity at the sentencing hearing to seek a waiver of the payment of

      costs because the trial court did not mention costs at the sentencing

      hearing. Joseph, 2010–Ohio–954 at ¶ 13. We thus vacate the order to pay

      costs and remand the matter to the trial court to permit appellant to argue

      for waiver of court costs.



      {¶59} Likewise, in State v. Pennington, 5th Dist. Guernsey No. 16CA14, 2017-

Ohio-1423, we found the trial court erred in failing to mention court costs in open court,

thus denying the defendant and opportunity to seek a waiver of court costs. Id. at ¶¶26-

27.

      {¶60} In the instant case, the trial court informed Appellant in open court at the

sentencing hearing, “You will also be ordered to pay the court costs in this matter.” Sent.

Tr. 10. Therefore, the instant case is distinguishable from Walker and Pennington as
Muskingum County, Case No. CT2017-0018                                                21


Appellant was informed he would be ordered to pay costs, and was given an opportunity

to seek a waiver of payment of costs based on indigency.

      {¶61} Appellant further argues the imposition of court costs was error because

they must be pursued in civil collection proceedings, citing State v. Eubanks, 2nd Dist.

Champaign No. 2015-CA-39, 2017-Ohio-2681, and State v. Ragland, 2nd Dist.

Champaign No. 2015-CA-36, 2017-Ohio-2783. The cited cases from the Second District

found error in the inclusion of costs and court-appointed counsel fees in a post-

confinement repayment plan, but did not prohibit the inclusion of court costs in the

sentencing entry. In fact, Ragland recognized court costs would be included in the

sentencing entry as a part of the sentence:



             We review a trial court's imposition of a repayment schedule for court

      costs under an abuse of discretion standard. See State v. Gullett, 4th Dist.

      Gallia No. 09CA4, 2010–Ohio–2785, ¶ 10. Pursuant to R.C. 2947.23, the

      trial court was required to “include in the sentence the costs of prosecution

      * * * and render a judgment against the defendant for such costs.” However,

      court costs are distinct from criminal punishment. This is because “although

      costs in criminal cases are assessed at sentencing and are included in the

      sentencing entry, costs are not punishment, but are more akin to a civil

      judgment for money.” State v. Threatt, 108 Ohio St.3d 277, 2006–Ohio–

      905, 843 N.E.2d 164, ¶ 15. An order to pay court costs is essentially a

      judgment on a contractual debt where the court is the creditor and the party

      ordered to pay court costs is the debtor. State v. Lamb, 163 Ohio App.3d
Muskingum County, Case No. CT2017-0018                                                 22


      290, 2005–Ohio–4741, 837 N.E.2d 833, ¶ 13 (2d Dist.). As such, the

      creditor, i.e., the court, can collect only the money it is due by the methods

      provided for the collection of civil judgments. Id.

      Ragland, supra, ¶ 13.



      {¶62} In the instant case, the court costs were not included in a post confinement

repayment schedule and the concerns addressed by the Second District in the cited

cases are not applicable.

      {¶63} The sixth assignment of error is overruled.

      {¶64} The judgment of the Muskingum County Common Pleas Court is affirmed.




By: Hoffman, J.

Wise, John, P.J. and

Baldwin, J. concur
