[Cite as State v. Adkins, 2020-Ohio-3296.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      CLARK COUNTY

 STATE OF OHIO                                    :
                                                  :
         Plaintiff-Appellee                       :   Appellate Case No. 2019-CA-45
                                                  :
 v.                                               :   Trial Court Case Nos. 2019-CRB-429
                                                  :   and 2019-CRB-583
 TIMOTHY J. ADKINS                                :
                                                  :   (Criminal Appeal from Municipal Court)
         Defendant-Appellant                      :
                                                  :

                                             ...........

                                             OPINION

                             Rendered on the 12th day of June, 2020.

                                             ...........

MARC T. ROSS, Atty. Reg. No. 0070446, Assistant Prosecuting Attorney, City of
Springfield Prosecutor’s Office, 50 East Columbia Street, Fourth Floor, Springfield, Ohio
45502
      Attorney for Plaintiff-Appellee

NICOLE RUTTER-HIRTH, Atty. Reg. No. 0081004, 2541 Shiloh Springs Road, Trotwood,
Ohio 45426
      Attorney for Defendant-Appellant

                                             .............




TUCKER, P.J.
                                                                                            -2-


       {¶ 1} Timothy J. Adkins appeals from a judgment of the Clark County Municipal

Court, which found him guilty of domestic violence, a fourth-degree misdemeanor,

menacing, a fourth-degree misdemeanor, and two counts of violating a protection order

or consent agreement, first-degree misdemeanors. The trial court merged the menacing

count into the domestic violence count and sentenced Adkins for the domestic violence

and two counts of violating a protection order.

       {¶ 2} Any error regarding the finding of guilt for menacing was harmless beyond

a reasonable doubt due to the merger. Adkins was not denied ineffective assistance of

trial counsel, and the trial court did not abuse its discretion regarding Adkins’s sentence.

The trial court’s judgment will be affirmed.

                              Facts and Procedural History

       {¶ 3} Adkins, while intoxicated, came home late at night and fought with his wife,

Christa.1 His children, who were two young adults and two younger children, were also

home during the incident. Evidently as a result of lingering animus concerning a previous

domestic violence conviction, Adkins made the following threat toward Christa:

        * * * [H]e told me that he had thought and thought about how to get rid of

       me. He said he had spent a lot of money and had been working on it for

       months * * * and had paid people to get rid of me. He said they, he had

       been in Kentucky and these people told him that it was all taken care of and

       he didn’t need to worry at this point and so this is why he was telling me and

       that he had his revenge and he said he was really excited and it was going



1
 For clarity, the appellant will be referred to as “Adkins” and his wife will be referred to as
“Christa.”
                                                                                          -3-


       to be great and he was clapping his hands and laughing.

       {¶ 4} Christa further testified that Adkins “threatened to kill [her] repeatedly that

night.” Christa testified that she took the threats “very seriously,” and that as a result of

the threats she “was afraid.” During the course of the fight, Adkins knocked a hole in a

wall, threw a microwave onto the floor, and destroyed Christa’s cell phone and glasses.

As a result of the threats, Adkins was charged with domestic violence in violation of R.C.

2919.25(C) and menacing in violation of R.C. 2903.22(A), both fourth-degree

misdemeanors. The Crim.R. 4 complaint as to each count stated the following: “[T]he

Defendant Timothy Adkins did knowingly make threats to his wife Christa Adkins saying

he was going to kill her and made her feel fearful for her life.”2

       {¶ 5} As a result of the described occurrence, Christa obtained an ex parte

domestic violence civil protection order under R.C. 3113.31. The order, introduced at

trial as Exhibit 14, required Adkins to vacate the marital home, to have no contact with

Christa, and not to cause or encourage another person to do any act prohibited by the

order. Adkins was served with the order the day after its issuance. A little over two

weeks later, Adkins’s mother delivered to Christa a letter written by Adkins. The letter

informed Christa that Adkins “would give [her] money” and it requested that Christa “drop

the charges.” After reading the letter, Christa responded by stating she had “heard it

before.” Adkins’s mother retrieved and retained the letter. A few hours later Adkins’s

mother returned with a second letter written by Adkins. This letter stated “he [did not

mean] to hurt his family * * * and he wanted to see [the] kids * * *.” After Christa read the


2
 Adkins’s 19-year-old daughter became involved in the fight, and Adkins was also
charged with domestic violence and assault against his daughter. Adkins was found not
guilty of those charges.
                                                                                            -4-


letter, Adkins’s mother once again retrieved and retained the letter. As a result of the

two letters, Adkins was charged with two counts of violating a protection order in violation

of R.C. 2919.27(A)(1), each count being a first-degree misdemeanor. The Crim.R. 4

complaint regarding the first letter stated “the defendant violated * * * [the] Order of

Protection by writing a letter to the victim and having his elderly mother deliver it.” The

complaint regarding the second letter stated “the defendant violated [the] Order of

Protection * * * by writing a second letter to the victim and having his elderly mother deliver

it three hours after the first letter was delivered.”

       {¶ 6} Following a bench trial, Adkins was found guilty of domestic violence,

menacing, and the two counts of violating a protection order.3 The trial court ordered the

merger of the domestic violence and menacing counts; the State elected to proceed on

the domestic violence count. Following receipt of a presentence investigation (PSI), the

trial court conducted a sentencing hearing.         The trial court found that each offense

constituted the worst form of the offense. With respect to the domestic violence, the

finding was based upon the nature of the threats, the contemporaneously committed

property damage, and the involvement of the children. With respect to menacing, the

worst-form-of-the-offense finding was based upon Adkins using his mother to deliver the

letters. Based upon these determinations, the trial court sentenced Adkins to 30 days

on the domestic violence conviction (into which the menacing had been merged) and to

180 days on each protection order violation. The sentences were ordered to be served



3
 Adkins and his mother testified that although Adkins wrote the letters, he did not know
his mother was going to deliver them to Christa. There was a text message introduced
at trial from Adkins to a brother-in-law which contradicted this assertion. The trial court
obviously concluded that Adkins caused his mother to deliver the letters.
                                                                                      -5-


consecutively, but 180 days were suspended, leaving a jail term of 210 days.

Additionally, fines and court costs were imposed and Adkins was placed on intensive

probation supervision upon his release from jail. This appeal followed.

                                       Analysis

      {¶ 7} Adkins asserts three assignments of error as follows:

             THERE WAS INSUFFICIENT EVIDENCE TO CONVICT ADKINS

      OF MENACING AS THE EVIDENCE SHOWED HIS WIFE DID NOT

      BELIEVE AND WAS NOT FEARFUL OF HIS COMMENT.

             ADKINS WAS DENIED THE EFFECTIVE ASSISTANCE OF

      COUNSEL GUARANTEED TO HIM UNDER THE CONSTITUTION DUE

      TO COUNSEL’S FAILURE TO CHALLENGE THE SUFFICIENCY OF THE

      EVIDENCE AND FAIL[URE] TO QUESTION A MATERIAL WITNESS AT

      TRIAL.

             A MAXIMUM, CONSECUTIVE SENTENCE WAS EXCESSIVE IN

      THIS CASE AND CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT.

                                Menacing Count

      {¶ 8} As noted, the trial court appropriately concluded that the domestic violence

and menacing counts were allied offenses of similar import, resulting in the counts being

merged. The State elected to have Adkins convicted on the domestic violence count,

with a conviction consisting of both a guilty finding and the imposition of a sentence.

State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 12. Adkins’s

assignment of error attacks the sufficiency and manifest weight of the evidence

supporting the menacing count. But “[u]nder Ohio law, ‘[w]hen a trial court dispatches
                                                                                       -6-


with a count through merger, any error in the verdict is rendered harmless beyond a

reasonable doubt.’ ” State v. Montgomery, 10th Dist. Franklin No. 13AP-512, 2014-Ohio-

4354, ¶ 39, quoting State v. Wolff, 7th Dist. Mahoning No. 2007 MA 166, 2009-Ohio-2897,

¶ 70, citing State v. Powell, 49 Ohio St.3d 255, 263, 552 N.E.2d 191 (1990). See also

State v. Stargell, 2016-Ohio-5653, 70 N.E.3d 1126, ¶ 57, 62 (2d Dist.). Given this, there

is no need to address Adkins’s sufficiency and manifest weight arguments with respect

to menacing.4 The first assignment of error is overruled.

                          Ineffective Assistance of Counsel

      {¶ 9} Succinctly stated, to succeed on an ineffective assistance of counsel claim,

a defendant must establish that his attorney performed deficiently and that the deficient

performance resulted in prejudice. 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).

When evaluating counsel’s performance, “a court must indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance; that

is, the defendant must overcome the presumption that, under the circumstances, the

challenged action ‘might be considered sound trial strategy.’ ” Strickland at 689, quoting

Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed.2d 83 (1955). Assuming

deficient performance, prejudice is gauged by whether “there is a reasonable probability

that but for counsel’s unprofessional errors the [trial’s outcome] would have been

different.” State v. Hudson, 2d Dist. Montgomery Nos. 27022, 27027, 27028, 2017-Ohio-


4
  R.C. 2903.22 states in pertinent part that “[n]o person shall knowingly cause another to
believe that the offender will cause physical harm to the person * * *.” Given this
language and Christa’s testimony, a menacing conviction would have been supported by
sufficient evidence. Further, our review of the record establishes that a menacing
conviction would Prejudice, not have been against the manifest weight of the evidence.
                                                                                           -7-


2608, ¶ 22, citing State v. Hale. 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶

204, citing Strickland at 687-688, 694 and Bradley at paragraph two of the syllabus. A

failure as to either prong is fatal to a claim of ineffective assistance. Strickland at 697.

       {¶ 10} Adkins’s first ineffective assistance argument is that counsel did not

effectively cross-examine Deputy Holly Risner.         Risner responded to Christa’s call

regarding the two letters. Risner’s brief testimony recounted her discussion with Christa,

the fact that she called Adkins’s mother, which conversation confirmed delivery of the

letters, and that a decision was made to charge Adkins with two counts of violating a

protection order. When he began the cross-examination, counsel seemed to believe that

Risner was also involved in the domestic violence investigation. When counsel realized

this was not so, the cross-examination was terminated.

       {¶ 11} Given Risner’s limited involvement, we cannot discern the strategic

rationale for the cross-examination suggested by Adkins.             Further, it cannot be

concluded that a rigorous cross-examination would have, in probability, changed the

trial’s outcome.

       {¶ 12} Adkins’s second ineffective assistance claim relates to counsel’s failure to

make a Crim.R. 29 motion for acquittal. A Crim.R. 29 motion tests whether the State

presented sufficient evidence to sustain a guilty verdict as a matter of law. State v.

Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins,

78 Ohio St.3d 380, 678 N.E.2d 541 (1997). However, Adkins does not raise a sufficiency

argument regarding the domestic relations or protection order charges. Upon our review

of the record, viewing the evidence in a light most favorable to the prosecution, the State

presented sufficient evidence that a rational trier of fact could have found the essential
                                                                                       -8-


elements of each charge proven beyond a reasonable doubt. See State v. Jenks, 61

Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. Given this,

Adkins’s Crim.R. 29 ineffective assistance argument fails. Adkins’s second assignment

of error is overruled.

                                       Sentencing

       {¶ 13} We outlined the standards pertaining to misdemeanor sentencing in State

v. Bakhshi, 2d Dist. Montgomery No. 25585, 2014-Ohio-1268, as follows:

              When sentencing for a misdemeanor offense, the trial court is guided

       by the "overriding purposes of misdemeanor sentencing," which are to

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

       the offender. R.C. 2929 .21(A); State v. Collins, 2d Dist. Greene No. 2012-

       CA-2, 2012-Ohio-4969, ¶ 9. “To achieve those purposes, the sentencing

       court [must] consider the impact of the offense upon the victim and the need

       for changing the offender's behavior, rehabilitating the offender, and making

       restitution to the victim of the offense, the public, or the victim and the

       public.” R.C. 2929.21(A). The sentence imposed must be “reasonably

       calculated to achieve the two overriding purposes of misdemeanor

       sentencing * * *, commensurate with and not demeaning to the seriousness

       of the offender's conduct and its impact upon the victim, and consistent with

       sentences imposed for similar offenses committed by similar offenders.”

       R.C. 2929.21(B); Collins at ¶ 9.

              “A trial court is also required to consider the nature and

       circumstances of the offense, whether there was a history of persistent
                                                                                       -9-


      criminal activity or character that reveals a substantial risk of the offender

      committing another offense, and numerous other factors related to the

      offender and the offense. R.C. 2929.22(B). However, in misdemeanor

      sentencing, there is no requirement that a trial court specifically state its

      reasons for imposing the sentence that it does on the record. State v.

      Jackson, 2d Dist. Montgomery No. 20819, 2005-Ohio-4521, ¶ 16, citing

      State v. Harpster, 5th Dist. Ashland No. 04COA061, 2005-Ohio-1046.”

      Collins at ¶ 10. “If the sentence imposed is within permissible statutory

      limits, a reviewing court will presume that the trial court considered the

      sentencing factors in R.C. 2929.22(B), absent a showing to the contrary.”

      State v. Johnson, 2d Dist. Greene No. 04-CA-126, 2005-Ohio-6826, ¶ 9.

Bakhshi at ¶ 47-48.     Misdemeanor sentences are reviewed under an abuse of

discretion standard. State v. Peagler, 2d Dist. Montgomery No. 24426, 2012-Ohio-

737, ¶ 3. It is also noted a maximum jail term may not be imposed unless the defendant

“commit[s] the worst form of the offense or upon [an] offender[ ] whose conduct and

response to prior sanctions for prior offenses demonstrate that the imposition of the

longest jail term is necessary to deter the offender from committing future crime.” R.C.

2929.22(C). However, a trial court is not required to make “ ‘on-the-record findings to

support the imposition of a maximum sentence’ for a misdemeanor.” State v. McClurg,

2d Dist. Darke No. 2019-CA-15, 2020-Ohio-1144, ¶ 7, quoting State v. Jackson, 2d Dist.

Montgomery No. 20819, 2005-Ohio-4521, ¶ 16.

      {¶ 14} Before imposing the sentences, the trial court stated that it had reviewed

the testimony and the PSI. The trial court, though not required to do so, explained its
                                                                                        -10-


sentencing rationale in some detail, including, as already discussed, the reasoning for the

worst form of the offense conclusions.        Though we may have reached different

conclusions, we cannot conclude that the imposed sentence reflects an abuse of

discretion. Adkins’s third assignment of error is overruled.

                                       Conclusion

       {¶ 15} The three assignments of error having been overruled, the judgment of the

Clark County Municipal Court is affirmed.



                                     .............



DONOVAN, J. and FROELICH, J., concur.




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Marc T. Ross
Nicole Rutter-Hirth
Hon. Stephen A. Schumaker
