[Cite as State v. Garrison, 2018-Ohio-1048.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                         Hon. William B. Hoffman, J.
                                                   Hon. Earle E. Wise, Jr., J.
-vs-
                                                   Case No. CT2017-0034
STEPHEN M. GARRISON

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Muskingum County Court
                                               of Common Pleas, Case No. CR2017-0018


JUDGMENT:                                      Affirmed

DATE OF JUDGMENT ENTRY:                         March 22, 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 Street, PO Box 189
Zanesville, Ohio 43702-0189
Muskingum County, Case No. CT2017-0034                                                    2

Hoffman, J.



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

Muskingum County Common Pleas Court convicting him of aggravated burglary (R.C.

2911.11(A)(1)) and sentencing him to eleven years incarceration. Appellee is the state

of Ohio.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   In November of 2016, Appellant was arrested, indicted, and released on

bond for the offense of domestic violence against his then-girlfriend, Nikki Dickinson. As

a condition of his bond, he was to have no contact, direct or indirect, with Dickinson.

       {¶3}   On January 2, 2017, Appellant appeared at Dickinson’s apartment after

learning she was dating Ryan Wilt.     When Appellant went to the apartment, Dickinson

asked him to leave. Appellant walked around her, without making physical contact, and

went to a bedroom where Wilt was located. Dickinson got between the two men, pushing

Appellant away. According to Dickinson, Appellant picked up a wooden box of marbles

and used the box to strike her in the face. Dickinson pushed Appellant out and locked

the door behind him. Appellant kicked the door, damaging the frame.

       {¶4}   Deputies Brandon Hamilton and Shawn Williams of the Muskingum County

Sheriff’s Department were dispatched to the scene. Hamilton spoke to Dickinson, while

Williams spoke to another witness, Brian Hohnwald, in a separate room.

       {¶5}   Dickinson is hearing impaired, but from past experience Hamilton was able

to successfully communicate with her by picking up on her gestures. While Hamilton

interviewed Dickinson, Hohnwald told Williams he witnessed an altercation between
Muskingum County, Case No. CT2017-0034                                                   3


Dickinson and Appellant. He saw the box of marbles fall to the floor, but he was not sure

if the box was used by Appellant to strike Dickinson. Hohnwald further told Williams

Appellant kicked the apartment door. The officers noted pieces of the door frame laying

on the ground and a footprint on the door. They further observed marbles on the tile floor,

along with a broken wooden box.

      {¶6}   Hamilton and Williams arrested Appellant for domestic violence. At the jail,

after being read his Miranda rights, Appellant indicated he wished to speak to Hamilton.

Appellant initially stated he went to the apartment to see his children. He then admitted

he found out Wilt and Dickinson were together, and he wanted Wilt to leave with him to

speak one-on-one, man-to-man. Appellant stated he and Wilt were friends, and he

wanted to speak to him for “peacekeeping.” Tr. 123. Appellant admitted Dickinson tried

to stop him from going inside. He denied knowing how the box was damaged and denied

kicking the door. However, he mentioned helping Nikki pick up marbles.

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

of aggravated burglary (R.C. 2911.11(A)(1)) and one count of domestic violence (R.C.

2919.25(A)). The case proceeded to jury trial. At trial, Appellee presented only the

testimony of Deputies Hamilton and Williams. Appellant was found not guilty of domestic

violence, but guilty of aggravated burglary. The trial court sentenced him to eleven years

incarceration, to be served consecutively with the three-year domestic violence sentence

in the case for which he had been released on bond during the commission of the instant

offense.

      {¶8}   It is from the May 10, 2017 judgment of conviction and sentence Appellant

prosecutes his appeal, assigning as error:
Muskingum County, Case No. CT2017-0034                                              4




             I. THE TRIAL COURT’S ADMISSION OF TESTIMONIAL HEARSAY

      AGAINST APPELLANT VIOLATED HIS CONSTITUTIONAL RIGHT TO BE

      CONFRONTED WITH THE WITNESSES AGAINST HIM AS PROVIDED

      IN THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION

      AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.

             II. THE APPELLANT WAS DEPRIVED OF THE EFFECTIVE

      ASSISTANCE OF COUNSEL CONTRARY TO THE STATE AND

      FEDERAL CONSTITUTIONS.

             III.   THE GUILTY VERDICT FOR AGGRAVATED BURGLARY

      AGAINST APPELLANT WAS AGAINST THE MANIFEST WEIGHT OF THE

      EVIDENCE AND CONTRARY TO LAW.

             IV.    THE TRIAL COURT PLAINLY ERRED IN IMPOSING THE

      MAXIMUM         CONSECUTIVE       SENTENCE        FOR     APPELLANT’S

      CONVICTION RENDERING THE SENTENCE CONTRARY TO LAW.




                                             I.

      {¶9}   Appellant argues his Sixth Amendment right to confront witnesses against

him was violated by the admission into evidence of statements made by Nikki Dickinson

and Brian Hohnwald through the testimony of Deputies Hamilton and Williams.

      {¶10} Deputy Hamilton testified Dickinson told him Appellant arrived at the

residence, and she asked him to leave. He walked around her and entered the apartment.

He went to the bedroom where Ryan Wilt was located. Dickinson got between them,
Muskingum County, Case No. CT2017-0034                                                   5


pushing Appellant back. Appellant struck her with a wooden box containing marbles.

After she pushed him out the door, Appellant kicked it, damaging the door frame.

Appellant objected at the time of this testimony on the basis of hearsay, but not on the

basis of a violation of the Confrontation Clause. The trial court overruled the objection

and allowed the testimony.

      {¶11} On direct examination, Deputy Williams did not testify to any statements

made by Hohnwald. On cross-examination, Williams testified Hohnwald said the box of

marbles fell to the floor. On re-direct, Williams testified Hohnwald explained he witnessed

the altercation between Dickinson and Appellant, but was not sure if Appellant hit

Dickinson with the box. Williams further testified Hohnwald told him Appellant kicked the

door in. Again, Appellant objected only on the basis of hearsay, and the objection was

overruled.

      {¶12} After the State rested its case and just prior to making a Crim. R. 29 motion

for a directed verdict of acquittal, Appellant objected to the statements made by Dickinson

and Hohnwald on the basis of violation of the Confrontation Clause.

      {¶13} The Confrontation Clause of the Sixth Amendment to the U.S. Constitution

guarantees “[i]n all criminal prosecutions, the accused shall enjoy the right * * * to be

confronted with the witnesses against him * * *.” In Crawford v. Washington, 541 U.S. 36,

124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States Supreme Court held

testimonial statements of a witness who does not appear at trial may not be admitted or

used against a criminal defendant unless the declarant is unavailable to testify, and the

defendant had a prior opportunity for cross-examination.
Muskingum County, Case No. CT2017-0034                                                     6


       {¶14} Confrontation Clause claims not preserved by objection are reviewed for

plain error. State v. Hartman, 2nd Dist. No. 26609, 2016-Ohio-2883, 64 N.E.3d 519, ¶

83, appeal not allowed, 146 Ohio St.3d 1515, 2016-Ohio-7199, 60 N.E.3d 7, ¶ 83 (2016).

Although Appellant objected on the basis of a Confrontation Clause violation, he failed to

do so until after the State had rested its case. Evid. R. 103(A) states:




              (A) Effect of Erroneous Ruling. Error may not be predicated upon a

       ruling which admits or excludes evidence unless a substantial right of the

       party is affected; and

              (1) Objection. In case the ruling is one admitting evidence, a timely

       objection or motion to strike appears of record, stating the specific ground

       of objection, if the specific ground was not apparent from the context[.]




       {¶15} In State v. Bahns, 2nd Dist. No. 22922, 185 Ohio App.3d 805, 2009-Ohio-

5525, 925 N.E.2d 1025, the defendant failed to object to the introduction of hearsay

evidence included in reports until the day after the witness testified, when the state had

already presented its entire case. The motion was found to be untimely, and therefore

insufficient to preserve the issue for appeal. Id. at ¶ 24.

       {¶16} Likewise, in the instant case, we find the Confrontation Clause objection to

be untimely and insufficient to preserve the issue for appeal. Having presented its case

through the testimony of the two deputies without objection, the State was free to release

Dickinson and Hohnwald if, in fact, the State had intended to call either witness, or to rest
Muskingum County, Case No. CT2017-0034                                                      7


its case without securing the in-court testimony of either witness. Had counsel raised a

timely Confrontation Clause objection, and such objection been sustained, the State

would have had the opportunity to attempt to present the testimony of the witnesses in

order to give Appellant an opportunity to confront them.         We find the objection in the

instant case which was made after the State rested to be untimely. Accordingly, Appellant

has waived all but plain error.

       {¶17} The Ohio Supreme Court has recently clarified the standard of review for

plain error:




               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
Muskingum County, Case No. CT2017-0034                                                8


      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

      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} Appellant has not demonstrated a reasonable probability the error affected

the outcome of the trial. Had Appellant timely objected, the State would have had the

opportunity to present the testimony of Dickinson and Hohnwald. Because we do not

know what these witnesses would have testified to had Appellant been given the

opportunity to confront them, we are unable conclude on this record the result of the

proceeding would have been different had a timely Confrontation Clause objection been

raised. Possibly both witnesses would have testified in accordance with their statements

as presented through the testimony of Deputies Hamilton and Williams, and the outcome

of the trial would have been the same. We find no plain error in the admission of the

statements of Dickinson and Hohnwald through the testimony of the deputies.

      {¶19} The first assignment of error is overruled.
Muskingum County, Case No. CT2017-0034                                                   9


                                                II.

       {¶20} In his second assignment of error, Appellant argues his trial counsel was

ineffective.

       {¶21} 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

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

produced a just result. Id.

       {¶22} Appellant first argues in conclusory fashion counsel did not file a motion in

limine seeking to limit “statements of witnesses as well as prior bad act evidence known

to counsel.” Brief of Appellant, p. 19. Appellant does not point to specific evidence

counsel should have sought to exclude, nor does he argue a legal basis for the exclusion

of such evidence. Accordingly, he has not demonstrated ineffective assistance of counsel

in failing to file a motion in limine.

       {¶23} Next Appellant argues counsel was ineffective in failing to file a motion to

suppress statements he made to law enforcement officials. Deputy Hamilton testified

Appellant was advised of his Miranda rights, and then indicated he wished to speak to the

deputy. The record does not establish a legal basis for a motion to suppress, and

Appellant has not demonstrated counsel was ineffective in failing to file same.
Muskingum County, Case No. CT2017-0034                                                    10


        {¶24} Appellant argues counsel never attempted to focus the jury pool’s attention

on the State’s burden of proof and waived opening statement where she could have

focused the jury on the State’s burden of proof. During jury selection, the prosecutor

explained to the jury the State had the burden of proof. Tr. 20. The court instructed the

jury regarding the State’s burden of proving the offense beyond a reasonable doubt. Tr.

208-209. 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.              Appellant has not

demonstrated counsel was ineffective in failing to further emphasize the burden of proof

at the start of the trial.

        {¶25} Appellant argues counsel failed to use peremptory challenges to excuse

several jurors who may have been biased. Appellant does not specify which jurors should

have been challenged and has therefore not demonstrated ineffective assistance of

counsel.

        {¶26} Appellant argues counsel failed to object to out of court statements on the

basis of violation of the Confrontation Clause. For the reasons stated in our discussion

of Assignment of Error One earlier in this opinion, Appellant has not demonstrated the

result of the proceeding would have been different had counsel objected.

        {¶27} Appellant argues counsel asked a series of questions on cross-examination

of Deputy Hamilton which allowed him to continue to testify concerning out of court

statements. At this point in the trial, the objection to the admission of the statements on

the basis of hearsay had been overruled.      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
Muskingum County, Case No. CT2017-0034                                                11


cross-examination cannot form the basis for a claim of ineffective assistance of counsel.

Id. Appellant has not demonstrated counsel was ineffective in the cross-examination of

Deputy Hamilton.

      {¶28} Appellant argues counsel should have objected when deputy Hamilton was

asked about Appellant “fleeing” the scene, as there was no evidence to suggest he fled

the scene. On redirect examination, the following colloquy occurred:




             Q. Okay. You were asked if Mr. Garrison was at the scene when

      you arrived. Do you remember that question?

             A. Yes.

             Q. Do you have past experience with perpetrators of a crime fleeing

      the scene?

             A. Yes, it’s common for individuals, or I should say suspects to leave

      prior to our arrival.

      Tr. 142.




      {¶29} The evidence is undisputed Appellant was not at the scene when the

deputies arrived, and we find counsel was not ineffective for failing to object to this

testimony.

      {¶30} Next Appellant argues counsel was ineffective in opening the door to

admission of the statements of Brian Hohnwald by asking Deputy Williams if anyone he

spoke to told him they witnessed physical interaction between Garrison and Dickinson.
Muskingum County, Case No. CT2017-0034                                                   12


Tr. 156.   However, from this line of questioning, counsel procured testimony which

demonstrated no one told the officer they saw Appellant strike Dickinson with a box, nor

did they see Appellant throwing the box or holding the box in his hands. Tr. 157. Although

Hohnwald’s statement indicated he witnessed a physical altercation between Garrison

and Dickinson, his statement to Williams was the box fell to the floor, contradicting

Dickinson’s statement Garrison struck her with the box. Tr. 158. Appellant has not

demonstrated ineffective assistance of counsel in opening the door to the statement of

Hohnwald, which in large part aided the defense.

       {¶31} Appellant argues counsel should have objected to Williams’s testimony

Hohnwald told him Appellant kicked the door in. This testimony was cumulative of

Dickinson’s statement to Hamilton.      Further, the deputies personally witnessed the

damage to the door. Appellant has not demonstrated the outcome of the trial would have

been different in the absence of this statement by Hohnwald.

       {¶32} Appellant argues counsel should have continued to object to the

prosecutor’s characterization of the evidence regarding “fleeing” and Appellant’s intent to

“confront” Wilt at the residence.    As discussed earlier, the evidence is undisputed

Appellant left the scene after the incident. Further, although Appellant told police his

intent was to talk to Wilt “man-to-man” for purposes of “peacekeeping,” the jury could infer

from all the evidence in the case and the circumstances surrounding Appellant’s decision

to go to Dickinson’s apartment that his intent was in fact to confront Wilt concerning his

relationship with Dickinson.

       {¶33} Appellant argues counsel erred in failing to object to the court instructing

the jury they could consider fleeing as evidence of guilt. Again, as discussed throughout
Muskingum County, Case No. CT2017-0034                                                    13


this opinion, the evidence was undisputed Appellant left the scene after the confrontation

with Dickinson. Appellant has not demonstrated a reasonable probability that in the

absence of this instruction he would have been acquitted.

       {¶34} Finally, Appellant argues counsel was ineffective in failing to request lesser-

included offense instructions. 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. Appellant has failed to specify which lesser-

included offenses he believes were demonstrated by the evidence, and has therefore not

demonstrated ineffective assistance of counsel.

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

                                                III.

       {¶36} In his third assignment of error, Appellant argues his conviction of

aggravated burglary is against the manifest weight of the evidence.

       {¶37} 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).

       {¶38} Appellant was convicted of aggravated burglary in violation of R.C.

2911.11(A)(1):
Muskingum County, Case No. CT2017-0034                                                  14




              “(A) No person, by force, stealth, or deception, shall trespass in an

       occupied structure or in a separately secured or separately occupied portion

       of an occupied structure, when another person other than an accomplice of

       the offender is present, with purpose to commit in the structure or in the

       separately secured or separately occupied portion of the structure any

       criminal offense, if any of the following apply:

              (1) The offender inflicts, or attempts or threatens to inflict physical

       harm on another[.]”




       {¶39} Appellant argues the evidence does not demonstrate he entered the

apartment with purpose to commit a criminal offense, and further does not demonstrate

he inflicted physical harm, or attempted or threatened to inflict physical harm.

       {¶40} While Appellant argues he went to the apartment to see Wilt for

peacekeeping purposes, from all the other evidence presented the jury could infer his

intention when he entered the apartment was to commit a criminal offense against Wilt,

the new boyfriend of Appellant’s former girlfriend. While he told Deputy Hamilton he

simply wanted to talk man-to-man with Wilt, who was a friend, he also commented to

Hamilton Dickinson’s “vagina was a revolving door,” from which the jury might infer

Appellant was angry about her relationship with Wilt despite his claim of peacekeeping.

Tr. 125.   Appellant was free on bond after an arrest for domestic violence against

Dickinson, and a condition of his bond was he was to not have contact with her. Appellant

admitted Dickinson did not want him to enter the apartment.          There was evidence
Muskingum County, Case No. CT2017-0034                                                  15


presented he pushed past Dickinson to get to Wilt, with Dickinson ultimately pushing him

out of the apartment, locking the door behind him. The State presented evidence he

kicked the door, damaging the door frame. From all of this evidence, we do not find the

jury lost its way in concluding Appellant entered the apartment with purpose to commit a

criminal offense.

      {¶41} Appellant also argues because the jury found him not guilty of domestic

violence, they rejected the testimony he struck Dickinson with the box of marbles, and

therefore the finding he inflicted, or attempted or threatened to inflict, physical harm is

against the manifest weight of the evidence.1

      {¶42} R.C.2929.25(A) defines the offense of domestic violence, “No person shall

knowingly cause or attempt to cause physical harm to a family or household member.”

Household member is defined by R.C.2929.25(F):




             (F) As used in this section and sections 2919.251 and 2919.26 of the

      Revised Code:

             (1) “Family or household member” means any of the following:

             (a) Any of the following who is residing or has resided with the

      offender:

             (i) A spouse, a person living as a spouse, or a former spouse of the

      offender;




1Seeming   inconsistency between verdicts on two different charges is not a basis for
reversal. State v. Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548, 819 N.E. 2d 1047, ¶138.
Muskingum County, Case No. CT2017-0034                                                 16


             (ii) A parent, a foster parent, or a child of the offender, or another

      person related by consanguinity or affinity to the offender;

             (iii) A parent or a child of a spouse, person living as a spouse, or

      former spouse of the offender, or another person related by consanguinity

      or affinity to a spouse, person living as a spouse, or former spouse of the

      offender.

             (b) The natural parent of any child of whom the offender is the other

      natural parent or is the putative other natural parent.

             (2) “Person living as a spouse” means a person who is living or has

      lived with the offender in a common law marital relationship, who otherwise

      is cohabiting with the offender, or who otherwise has cohabited with the

      offender within five years prior to the date of the alleged commission of the

      act in question.




      {¶43} Appellant argued in his Crim. R. 29 motion for a directed verdict of acquittal

and in closing argument the evidence was insufficient to establish Dickinson was a

household or family member, as the only evidence with regard to the issue was Hamilton’s

testimony the last name of Dickinson’s two children is Garrison, nor was there evidence

Appellant previously resided with Dickinson. Tr. 169-170, 196-197. Therefore, the record

does not affirmatively demonstrate the jury did not believe Dickinson’s statement

Appellant struck her in the face with a box of marbles. Further, Hamilton testified after

denying knowing how the box was damaged, Appellant mentioned helping Dickinson pick

up the marbles, which Hamilton found odd. Tr. 126. Based on the evidence Appellant
Muskingum County, Case No. CT2017-0034                                                    17


struck Dickinson with a box of marbles while inside the evidence, the jury’s finding

Appellant inflicted or attempted to inflict physical harm on Dickinson while inside the

residence is not against the manifest weight of the evidence.

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

                                                IV.

       {¶45} Appellant argues the court erred in sentencing him to the maximum

sentence of eleven years incarceration.2

       {¶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




2 While Appellant’s assignment of error is framed to include error in consecutive
sentencing, in the body of his argument he makes no argument regarding the imposition
of the sentence consecutive to his separate conviction, and we therefore do not address
the propriety of consecutive sentences in the instant case.
Muskingum County, Case No. CT2017-0034                                                     18


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

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
Muskingum County, Case No. CT2017-0034                                                  19


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} In the judgment of sentence, the trial court recited it had considered the

principles and purposes of felony sentencing under R.C. 2929.11, and the balance of

seriousness and recidivism factors under R.C. 2929.12. At the sentencing hearing, the

court stated:




                The Court would note for the record that you are currently serving a

       sentence on a domestic violence where you were convicted in November

       of last year. You were out on bond on that case at the time you committed

       this case, and you committed that case while you were on community

       control out of another county.

                The Court would also note that in 2011, you had a criminal conviction

       for nonsupport which is the one that you were still – hadn’t reported. There

       were several times that you were jailed during that case. There was also a

       2001 case for two counts of domestic violence. Everything else you were

       found not guilty which was the intimidation of a witness, the burglary, and

       the child endangering. You were found not guilty. The PSI reflects it now

       and reflected it back then as that way.
Muskingum County, Case No. CT2017-0034                                                   20


             The Court would also note, in that particular case, you were – had a

      number of probation violations and eventually were revoked and sent to

      prison.

             Back in ’95, you had a trafficking case which ended up in three

      probation violations and eventually revoked and sent to prison. You also

      have had numerous misdemeanors over the years, and you’ve gone to trial

      on one domestic violence which was a misdemeanor and was found not

      guilty. You have a history of being able to do that. And another one

      dismissed. Another one dismissed. Criminal mischief, not guilty at trial.

      Public intox, criminal damaging, assault, not guilty at trial. Assault, criminal

      damaging, assault – two counts of assault and another assault.

             Upon reviewing all that and the fact that you were out on bond at the

      time you committed this offense, the Court finds that you should have known

      better than even being close to there. You’ve been through this so many

      times you would think you would learn something along the way.

      Sent. Tr. 6-7.




      {¶53} Appellant argues the court erred in considering offenses on which he had

been acquitted. However, Appellant’s assertion is not supported by Ohio law:




             [I]t is well established in Ohio law that the court may consider

      information beyond that strictly related to the conviction offense. For
Muskingum County, Case No. CT2017-0034                                                21


     example, the statute governing the contents of a PSI report simply says,

     “[T]he officer making the report shall inquire into the circumstances of the

     offense and the criminal record, social history, and present condition of the

     defendant.” R.C. 2951.03(A). The statutory directive no doubt results in the

     sentencing court considering evidence that would be inadmissible at trial,

     State v. Davis (1978), 56 Ohio St.2d 51, 10 O.O.3d 87, 381 N.E.2d 641—

     like hearsay—and results in the court considering evidence entirely

     unrelated to the conviction offense. See Gregg v. United States (1969), 394

     U.S. 489, 492, 89 S.Ct. 1134, 22 L.Ed.2d 442. So, the court may consider

     the offender's prior arrests, even if none yields prosecution. Burton at 23, 6

     O.O.3d 84, 368 N.E.2d 297 (“it is well-established that a sentencing court

     may weigh such factors as arrests for other crimes”). The court may also

     consider facts that support a charge of which the offender is ultimately

     acquitted. State v. Wiles (1991), 59 Ohio St.3d 71, 78, 571 N.E.2d 97,

     quoting United States v. Donelson (C.A.D.C.1982), 695 F.2d 583, 590 (“ ‘It

     is well established that a sentencing judge may take into account facts

     introduced at trial relating to other charges, even ones of which the

     defendant has been acquitted’ ”).

            The court may even consider mere allegations of crimes for which

     the offender is never prosecuted. State v. Cooey (1989), 46 Ohio St.3d 20,

     35, 544 N.E.2d 895 (allegations of uncharged criminal conduct found in a

     PSI report may be considered as part of the offender's social history).
Muskingum County, Case No. CT2017-0034                                                22

      State v. Riggleman, 5th Dist. Licking No. 14-CA-17, 2014-Ohio-5369, ¶ 17, quoting

      State v. Bowser, 186 Ohio App.3d 162, 2010–Ohio–951, 926 N.E.2d 714(2nd Dist

      Montgomery), ¶ 15.




      {¶54} The record reflects Appellant has an extensive criminal history, and has not

responded favorably to criminal sanctions in the past as demonstrated by his history of

probation violations. Further, he was on bond for a separate offense involving the same

victim at the time he committed the instant offense, and he was on community control at

the time of the commission of that offense.    We do not find by clear and convincing

evidence “that the record does not support the sentencing court's findings,” or “that the

sentence is otherwise contrary to law.” R.C. 2953.08(G)(2)(a)-(b).

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

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



By: Hoffman, J.

Gwin, P.J. and

Wise, Earle, J. concur
