[Cite as State v. Kunzer, 2019-Ohio-1042.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                             CRAWFORD COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 3-18-17

        v.

MATTHEW KUNZER,                                           OPINION

        DEFENDANT-APPELLANT.




                Appeal from Crawford County Common Pleas Court
                           Trial Court No. 18-CR-0092

                                      Judgment Affirmed

                            Date of Decision: March 25, 2019




APPEARANCES:

        Howard A. Elliott for Appellant

        Micah R. Ault for Appellee
Case No. 3-18-17


ZIMMERMAN, P.J.

      {¶1} Defendant-appellant, Matthew Kunzer (“Kunzer”), appeals the August

30, 2018 judgment entry of sentence of the Crawford County Court of Common

Pleas. We affirm.

      {¶2} This case stems from an altercation on March 2, 2018 between Kunzer

and Deputy Mark Landis (“Deputy Landis”) and Sergeant Tyson Estrada (“Sergeant

Estrada”) of the Crawford County Sheriff’s Department that occurred while Kunzer

was an inmate at the Crawford County jail. On April 17, 2018, the Crawford County

Grand Jury indicted Kunzer on two counts of assault in violation of R.C.

2903.13(A), (C)(5), both being fourth-degree felonies. (Doc. No. 1). Kunzer

appeared for arraignment on April 25, 2018 and entered pleas of not guilty. (Doc.

No. 5).

      {¶3} After a jury trial on July 19, 2018, Kunzer was found guilty of both

counts in the indictment. (Doc. Nos. 13, 14); (July 19, 2018 Tr. at 1, 298). On

August 29, 2018, the trial court sentenced Kunzer to 18 months in prison on each

count, respectively, and ordered its sentences to run consecutively for an aggregate

term of 36 months in prison. (Doc. No. 19). The trial court further ordered Kunzer

to serve its consecutive sentences consecutively to Kunzer’s sentence in another

Crawford County case. (Id.).




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        {¶4} On September 24, 2018, Kunzer filed a notice of appeal and he raises

three assignments of error for our review. (Doc. No. 28). For ease of our discussion,

we will discuss Kunzer’s first assignment of error, then his second and third

assignments of error together.

                                   Assignment of Error No. I

        The trial court errored in convicting the defendant-appellant of
        assault where the record did not support a finding as to all
        essential elements of the offense

        {¶5} In his first assignment of error, Kunzer argues that his assault

conviction as to Deputy Landis is based on insufficient evidence.1 Specifically,

Kunzer argues that there is insufficient evidence that he knowingly caused Deputy

Landis physical harm.

                                        Standard of Review

        {¶6} “An appellate court’s function when reviewing the sufficiency of the

evidence to support a criminal conviction 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 (1981), paragraph two of the syllabus, superseded by state constitutional

amendment on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997). Accordingly,



1
 Kunzer does not challenge the sufficiency of the evidence as to his assault conviction related to Sergeant
Estrada. (See Appellant’s Brief at 7-8). Thus, we will not address whether that conviction is based on
sufficient evidence.

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“[t]he 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. “In deciding if the

evidence was sufficient, we neither resolve evidentiary conflicts nor assess the

credibility of witnesses, as both are functions reserved for the trier of fact.” State v.

Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-4775, ¶ 33,

citing State v. Williams, 197 Ohio App.3d 505, 2011-Ohio-6267, ¶ 25 (1st Dist.).

See also State v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19

(“Sufficiency of the evidence is a test of adequacy rather than credibility or weight

of the evidence.”), citing Thompkins at 386.

                                       Analysis

       {¶7} As an initial matter, the record reveals that Kunzer failed to renew his

Crim.R. 29(A) motion at the conclusion of his case-in-chief or at the conclusion of

all the evidence. (See July 19, 2018 Tr. at 244-254).

       In order to preserve the issue of sufficiency on appeal, this court has
       held that “[w]hen a defendant moves for acquittal at the close of the
       state’s evidence and that motion is denied, the defendant waives any
       error which might have occurred in overruling the motion by
       proceeding to introduce evidence in his or her defense. In order to
       preserve a sufficiency of the evidence challenge on appeal once a
       defendant elects to present evidence on his behalf, the defendant must
       renew his Crim.R. 29 motion at the close of all the evidence.”

State v. Hurley, 3d Dist. Hardin No. 6-13-02, 2014-Ohio-2716, ¶ 37, quoting State

v. Edwards, 3d Dist. Marion No. 9-03-63, 2004-Ohio-4015, ¶ 6. Based on this

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court’s precedent, Kunzer’s failure to renew his Crim.R. 29(A) motion at the

conclusion of his case-in-chief or at the conclusion of all evidence waived all but

plain error on appeal. Id. at ¶ 37, citing State v. Flory, 3d Dist. Van Wert No. 15-

04-18, 2005-Ohio-2251, ¶ 4, citing Edwards at ¶ 6.

         {¶8} “However, ‘[w]hether a sufficiency of the evidence argument is

reviewed under a prejudicial error standard or under a plain error standard is

academic.’” Id. at ¶ 38, citing Perrysburg v. Miller, 153 Ohio App.3d 665, 2003-

Ohio-4221, ¶ 57 (6th Dist.), quoting State v. Brown, 2d Dist. Montgomery No.

17891, 2000 WL 966161, *8 (July 14, 2000). “Regardless of the standard used, ‘a

conviction based on legally insufficient evidence constitutes a denial of due process,

and constitutes a manifest injustice.’” Id., quoting Thompkins, 78 Ohio St.3d at 386-

387. Accordingly, we will proceed to determine whether the State presented

sufficient evidence to support Kunzer’s conviction. See id. See also State v. Velez,

3d Dist. Putnam No. 12-13-10, 2014-Ohio-1788, ¶ 68, citing State v. Wimmer, 3d

Dist. Marion No. 9-98-46, 1999 WL 355190, *1 (Mar. 26, 1999).

         {¶9} Kunzer was convicted of assault under R.C. 2903.13, which provides,

in its relevant part, “No person shall knowingly cause or attempt to cause physical

harm to another * * *.” R.C. 2903.13(A).2 The requisite culpable mental state for


2
  Kunzer was convicted of assault under R.C. 2903.13(A), (C)(5). However, Kunzer does not challenge the
sufficiency of the evidence supporting his conviction as to subsection (C)(5)—that “the victim of the offense
is a peace officer * * * while in the performance of their official duties * * *.” R.C. 2903.13(C)(5). Therefore,
we will not address it.

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Case No. 3-18-17


assault is “knowingly.”

       A person acts knowingly, regardless of his purpose, when he is aware
       that his conduct will probably cause a certain result or will probably
       be of a certain nature. A person has knowledge of circumstances
       when he is aware that such circumstances probably exist.

R.C. 2901.22(B). Physical harm to persons is defined in R.C. 2901.01(A)(3) as,

“any injury, illness, or other physiological impairment, regardless of its gravity or

duration.”

       {¶10} On appeal, Kunzer argues that there is insufficient evidence that he

knowingly caused Deputy Landis physical harm. That is, he contends that the

evidence reflects that Deputy Landis was injured by accident or as an incident of

Kunzer and Sergeant Estrada’s altercation. (See Appellant’s Brief at 8, citing In re

Mark M., 6th Dist. Erie Nos. E-99-028 and E-99-046, 2000 WL 125800 (Feb. 4,

2000), In re Freeborn, 5th Dist. Morgan No. 98CA08, 2000 WL 1533 (Dec. 15,

2000), and In re A.C.T., 158 Ohio App.3d 473, 2004-Ohio-4935 (2d Dist.)).

       {¶11} We disagree.     In reaching this conclusion, “we are mindful that

‘[k]nowledge, like all kinds of intent, can be inferred from circumstantial evidence.”

In re D.S., 4th Dist. Adams No. 10CA893, 2010-Ohio-5694, ¶ 32, quoting State v.

Terry, 186 Ohio App.3d 670, 2010-Ohio-1604, ¶ 22 (4th Dist.), citing State v.

Seiber, 56 Ohio St.3d 4, 13-14 (1990). See also State v. Garrard, 170 Ohio App.3d

487, 2007-Ohio-1244, ¶ 31 (10th Dist.) (stating that “[p]roof of intent may be

derived from circumstantial evidence, as direct evidence will seldom be available”),

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citing State v. Lott, 51 Ohio St.3d 160, 168 (1990) and State v. Tarver, 9th Dist.

Summit No. 22057, 2004-Ohio-6748, ¶ 10. “Circumstantial evidence is the ‘proof

of facts by direct evidence from which the trier of fact may infer or derive by

reasoning other facts in accordance with the common experience of mankind.’”

Garrard at ¶ 31, quoting State v. Bentz, 2 Ohio App.3d 352, 355, (1st Dist.1981),

fn. 6, citing Ohio Jury Instructions, Section 5.10(d) (1968). “Circumstantial

evidence has probative value equal to direct evidence.” Id., citing State v. Nicely,

39 Ohio St.3d 147, 151 (1988).

       {¶12} After reviewing all of the evidence in the record, we conclude that the

requisite-mental intent of knowingly can be inferred from the circumstantial

evidence presented at trial. In contrast to the cases to which Kunzer directs us to in

support of his argument, the evidence in the record reveals that Kunzer was involved

in a struggle with Sergeant Estrada and Deputy Landis prior to the actions that led

to Deputy Landis’s injuries. Compare In re D.S. at ¶ 33 (distinguishing In re Mark

M. in concluding that the requisite-mental intent could be inferred from

circumstantial evidence because “there was a verbal confrontation that included

profanities and ‘very belligerent’ behavior” prior to the actions that formed the basis

for the assault offense). Indeed, Kunzer was acting belligerently in his cell by being

uncooperative when Sergeant Estrada tried to “serve him his Lockdown Form”

(from a prior incident with another inmate); by calling Sergeant Estrada profane


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names; by “going off verbally about [wanting] commissary”; and by refusing to

obey Sergeant Estrada’s order to sit on his bed. (July 19, 2018 Tr. at 135-137).

Further, Sergeant Estrada described Kunzer’s behavior as “[v]ery aggressive, very

upset * * *.” (Id. at 194).

       {¶13} As a result of Kunzer’s “aggressive” behavior, Sergeant Estrada had

to physically move Kunzer “to the back of his cell” to “restrain him and get him out

of that area.” (Id. at 137-138). While Deputy Landis (who was assisting Sergeant

Estrada restrain Kunzer) was cuffing him, Kunzer “blew up” and began resisting,

which resulted in Deputy Landis and Sergeant Estrada being “knocked back.” (Id.

at 139). At that point, Kunzer intentionally grabbed Sergeant Estrada and put him

in a choke hold, with his arm held tightly about his neck. So, to free Sergeant

Estrada, Deputy Landis “jumped on [Kunzer’s] back” and “grabbed him around the

neck and shoulder area and [he] pulled him off” Sergeant Estrada. (Id. at 139-140).

After Sergeant Estrada was freed from the choke hold, Kunzer “threw [Deputy

Landis] off” and began exchanging punches with Sergeant Estrada. (Id. at 140-

141). Deputy Landis further described that Kunzer is “quite a bit taller than [him],

so [he] was up off the ground” at the time Kunzer “threw” him off. (Id.). Deputy

Landis testified that he sustained “minor bumps and bruises,” including bruising to

his left calf; that he “was hobbling around for a weekend; and that had the “wind []

knocked out of [him].” (Id. at 140-141).


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       {¶14} Consequently, based on the totality of the evidence, we conclude that

Deputy Landis was not injured by accident or by incident. Rather, a rational trier

of fact could infer from the totality of the evidence presented at trial that Kunzer

engaged Sergeant Estrada and Deputy Landis in the altercation to resist their efforts

to restrain him. See In re D.S. at ¶ 33; In re Pollitt, 4th Dist. Adams, No. 00CA687,

2000 WL 1528663, *3 (Oct. 10, 2000). Stated differently, Deputy Landis did not

intervene in an altercation between Sergeant Estrada and Kunzer and become

injured by accident or incident of the intervention.

       {¶15} Moreover, the State was not required to prove that Kunzer “threw”

Deputy Landis off of his back with the intent to cause him physical harm; rather,

the State was required to prove that Kunzer was aware that his conduct would

probably cause Deputy Landis physical harm. See State v. Kleekamp, 2d Dist.

Montgomery No. 23533, 2010-Ohio-1906, ¶ 27. In other words, the jury could infer

that, since Kunzer was in the midst of an altercation with Sergeant Estrada and

Deputy Landis, he was aware that his continued efforts in resisting Deputy Landis’s

struggle to restrain him would probably cause Deputy Landis physical harm. See

State v. Booker, 2d Dist. Montgomery No. 22990, 2009-Ohio-1039, ¶ 60, 62

(concluding that “throw[ing] a victim against a wall,” even with a purpose “to rid

himself of [the victim] while they were mutual combatants,” is sufficient evidence




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Case No. 3-18-17


that Booker acted knowingly because a rational trier of fact could infer that he was

aware that his conduct would probably cause the victim physical harm).

        {¶16} Therefore, viewing this evidence in a light most favorable to the

prosecution, a rational trier of fact could find beyond a reasonable doubt that Kunzer

knowingly caused Deputy Landis physical harm, and therefore, committed assault.

Thus, Kunzer’s first assignment of error is overruled.

                                  Assignment of Error No. II

        The trial court committed error in imposing consecutive
        sentences of imprisonment by failing to announce at the
        sentencing hearing the necessary findings of R.C. Section
        2929.14(C)(4) in imposing such sentence.

                                 Assignment of Error No. III

        The trial court errored in imposing upon the defendant-appellant
        a sentence that was consecutive to a previously imposed prison
        term when it failed to announce it at the sentencing hearing in
        contravention of R.C. 2929.19(B)(2)(c) and R.C. 2929.41.3

        {¶17} In his second assignment of error, Kunzer argues that the trial court

erred by imposing consecutive sentences in this case without making the required

findings under R.C. 2929.14(C)(4). In his third assignment of error, Kunzer

challenges the trial court’s order that he serve the consecutive sentences imposed in

this case consecutive to a sentence imposed in another Crawford County case.




3
 It appears that Kunzer is directing us to a prior version of R.C. 2929.19. Compare R.C. 2929.19(B)(2)(c)
(2009) with 2929.19(B) (2012).

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                                  Standard of Review

       {¶18} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence

“only if it determines by clear and convincing evidence that the record does not

support the trial court’s findings under relevant statutes or that the sentence is

otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,

¶ 1. Clear and convincing evidence is that “‘which will produce in the mind of the

trier of facts a firm belief or conviction as to the facts sought to be established.’” Id.

at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the

syllabus.

                                        Analysis

       {¶19} “Except as provided in * * * division (C) of section 2929.14, * * * a

prison term, jail term, or sentence of imprisonment shall be served concurrently with

any other prison term, jail term, or sentence of imprisonment imposed by a court of

this state, another state, or the United States.” R.C. 2929.41(A). R.C. 2929.14(C)

provides:

       (4) * * * [T]he court may require the offender to serve the prison terms
       consecutively if the court finds that the consecutive service is
       necessary to protect the public from future crime or to punish the
       offender and that consecutive sentences are not disproportionate to the
       seriousness of the offender’s conduct and to the danger the offender
       poses to the public, and if the court also finds any of the following:

       (a) The offender committed one or more of the multiple offenses
       while the offender was awaiting trial or sentencing, was under a
       sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of

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       the Revised Code, or was under post-release control for a prior
       offense.

       (b) At least two of the multiple offenses were committed as part of
       one or more courses of conduct, and the harm caused by two or more
       of the multiple offenses so committed was so great or unusual that no
       single prison term for any of the offenses committed as part of any of
       the courses of conduct adequately reflects the seriousness of the
       offender’s conduct.

       (c) The offender’s history of criminal conduct demonstrates that
       consecutive sentences are necessary to protect the public from future
       crime by the offender.

       {¶20} R.C. 2929.14(C)(4) requires a trial court to make specific findings on

the record before imposing consecutive sentences. State v. Hites, 3d Dist. Hardin

No. 6-11-07, 2012-Ohio-1892, ¶ 11; State v. Peddicord, 3d Dist. Henry No. 7-12-

24, 2013-Ohio-3398, ¶ 33. Specifically, the trial court must find: (1) consecutive

sentences are necessary to either protect the public or punish the offender; (2) the

sentences would not be disproportionate to the offense committed; and (3) one of

the factors in R.C. 2929.14(C)(4)(a), (b), or (c) applies. Id.; Id.

       {¶21} The trial court must state the required findings at the sentencing

hearing prior to imposing consecutive sentences and incorporate those findings into

its sentencing entry. State v. Sharp, 3d Dist. Putnam No. 12-13-01, 2014-Ohio-

4140, ¶ 50, citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, ¶ 29. A

trial court “has no obligation to state reasons to support its findings” and is not

“required to give a talismanic incantation of the words of the statute, provided that


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Case No. 3-18-17


the necessary findings can be found in the record and are incorporated into the

sentencing entry.” Bonnell at ¶ 37.

        {¶22} As to his sentences imposed in this case, Kunzer concedes that the trial

court    made     the   required    protect-the-public-or-punish-the-offender     and

disproportionately findings. Rather, he contends that the trial court failed to state

whether one of the factors in R.C. 2929.14(C)(4)(a), (b), or (c) applies. This

argument is meritless. The trial court made the statutorily required finding before

imposing consecutive sentences at the sentencing hearing and incorporated that

finding into its sentencing entry. (See Doc No. 19) Specifically, at the sentencing

hearing, the trial court discussed, at length, Kunzer’s history of violent criminal

conduct and the need to protect the public from future violent conduct by Kunzer.

(See Aug. 29, 2018 Tr. at 38-41). Compare State v. Mauder, 6th Dist. Lucas Nos.

L-15-1171 and L-15-1172, 2016-Ohio-7114, ¶ 41 (concluding that the trial court’s

discussion of Mauder’s “propensity for violence and criminal record” satisfies R.C.

2929.14(C)(4)(c)).

        {¶23} Kunzer also argues that the trial court erred by ordering the

consecutive sentences imposed in this case be served consecutively to the sentence

imposed in another Crawford County case. In particular, he contends that the trial

court did not state at the sentencing hearing that it was ordering the consecutive




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Case No. 3-18-17


sentences imposed in this case be served consecutively to the sentence in the other

case.

        {¶24} As an initial matter, we note that there is no requirement that a trial

court make a second set of R.C. 2929.14(C)(4) findings before ordering that a

consecutive sentence be served consecutively to a sentence previously imposed in

another case. See State v. Jarmon, 8th Dist. Cuyahoga No. 1006727, 2018-Ohio-

4710, ¶ 12, quoting State v. Akerman, 3d Dist. Hancock No. 5-99-32, 1999 WL

1022127, *3 (Nov. 10, 1999) (“‘The defendant’s proposed rule, which would

require the trial court to make that finding twice in the same hearing, is not mandated

by the sentencing statutes and serves no legitimate sentencing purpose.’”). See also

id. at ¶ 13. Accordingly, because we already concluded that the trial court made the

appropriate R.C. 2929.14(C)(4) findings, we need not resolve that issue again.

        {¶25} Moreover, although the trial court (as a matter of practice) should

more clearly state its orders, we conclude that (based on the specific facts and

circumstances of this case) the trial court properly ordered that Kunzer serve the

consecutive sentences in this case consecutive to the sentence in the other Crawford

County case. Based on our review of the record, keeping in mind that the trial court

was not required to use any particular talismanic language, we conclude that the trial

court’s remarks were directed to all of the sentences imposed on Kunzer. Compare

Jarmon at ¶ 16 (“Bearing in mind that the trial court was not required to use any


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particular talismanic language, the record demonstrates that the court’s remarks

were directed to all the offenses * * *.”). See R.C. 2929.19(B). Indeed, when

announcing Kunzer’s sentence, the trial court stated, without reservation, “I’ve also

considered and paid particular attention to 2929.14 that pertains with consecutive

sentences.” (Aug. 29, 2018 Tr. at 38). In addressing the statutorily required findings

under R.C. 2929.14(C)(4), the trial court acknowledged that Kunzer was “currently

in prison, he’s serving a prison sentence on an unrelated matter.” (Id. at 39).

Further, after conducting a lengthy discussion about the need to protect the public

from future violent conduct by Kunzer (of which included the trial court’s

acknowledgement that Kunzer was serving a sentence in another case), the trial

court stated, “[B]ecause of that, I’m forced to give a lengthy, consecutive sentence

in this particular matter.” (Id. at 40). In addition, the trial court explicitly stated in

its sentencing entry that the consecutive sentences in this case are to be served

consecutive to Kunzer’s other Crawford County case.

       {¶26} For these reasons, we conclude that Kunzer’s sentence is not contrary

to law and his assignments of error are overruled.

       {¶27} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                    Judgment Affirmed

SHAW and PRESTON, J.J., concur.


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