[Cite as State v. Kinsworthy, 2014-Ohio-2238.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                            WARREN COUNTY




STATE OF OHIO,                                    :

        Plaintiff-Appellee,                       :     CASE NO. CA2013-06-060

                                                  :            OPINION
   - vs -                                                       5/27/2014
                                                  :

JOSEPH DANIEL KINSWORTHY,                         :

        Defendant-Appellant.                      :



                    CRIMINAL APPEAL FROM WARREN COUNTY COURT
                               Case No. 2012 CRB 01036



David P. Fornshell, Warren County Prosecuting Attorney, Michael Greer, 500 Justice Drive,
Lebanon, Ohio 45036, for plaintiff-appellee

James S. Arnold, 9737 Loveland-Madeira Road, Loveland, Ohio 45140 and The Farrish Law
Firm, Michaela M. Stagnaro, 810 Sycamore Street, 6th Floor, Cincinnati, Ohio 45202, for
defendant-appellant



        RINGLAND, P.J.

        {¶ 1} Defendant-appellant, Joseph D. Kinsworthy, appeals his conviction and

sentence in the Warren County Court for violating a protection order.

        {¶ 2} Kinsworthy was charged with violating a protection order in violation of R.C.

2919.27(A)(1), a misdemeanor of the first degree. On May 24, 2013, Kinsworthy's case

proceeded to a jury trial.
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       {¶ 3} The victim, Katy Wall, testified first. She testified that she had previously been

in a romantic relationship with Kinsworthy, but she eventually came to fear him and was

afraid for both her and her son's safety. On May 24, 2012, she obtained a five-year civil

protection order ("CPO") against Kinsworthy that covered herself and her son. Pursuant to

the terms of the CPO, Kinsworthy was specifically forbidden from entering or interfering with

Wall's "residence, school, business, or place of employment" and from initiating or having

any contact with Wall's "residence, businesses, [and] places of employment * * *." At the

time of trial, Wall was a teacher at Little Miami Junior High School and had taught there for

ten years.

       {¶ 4} Wall testified that on September 15, 2012, a complaint was made against her

through PublicSchoolWORKS, an anonymous email service intended to allow students and

parents of Little Miami School District to report incidents of bullying. The complaint made

against Wall was sent to her school's principal, assistant principal, guidance counselor and

district superintendent. Wall testified that neither she nor Kinsworthy had children that

attended Little Miami. Wall acknowledged that she did not know who sent the complaint.

However, she testified that she believed Kinsworthy was the source of the complaint because

of the CPO, other proceedings between the two that where ongoing, and because he was

"the only person I could think of who would want to attempt to harm me professionally at my

job, or harm me in any sort of way."

       {¶ 5} The principal of the Little Miami Junior High School, Ryan Michael Cherry,

testified next. Cherry testified that the complaint made on PublicSchoolWORKS read as

follows:

              A 7th Grade English Teacher Katy Wall was overheard by my
              daughter discussing the events that led to her receiving two black
              eyes and scratches on her face. She was telling the other
              person that she got drunk and slept with someones [sic] husband
              and the wife attacked her at a bar in South Lebanon. This isnt
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                [sic] the first time I've heard about Ms. Wall, she's been the
                center of many topics of my daughters [sic] discussions.

                My daughter said she humiliated a girl in the middle of class for
                having her period, she pulled the girl out of her other class and
                made her clean up the mess in front of all of the other students,
                humiliating her.

                This is coming from the same woman that is on Cincinnait.com
                [sic] for being a headline topic of "How Schools Cheat" regarding
                her cheating on the State Examinations.

                My husband personally knows her as being a lush at all the bars
                and desperate to get on any man that is willing. You need to
                investigate this woman and her behaviors.

        {¶ 6} Cherry testified that he was aware of the CPO against Kinsworthy and of a

similar complaint made against Wall on another website. Cherry testified that the complaint

contained the IP address from which it was sent: 71.67.241.70. After discussing the matter

with his supervisor, Cherry contacted the police.

        {¶ 7} Officer Tim Rector testified next. Officer Rector had been dispatched to

investigate the email Cherry received. Based upon Officer Rector's knowledge of the CPO

against Kinsworthy, and his review of the email, he drafted a subpoena to request

information relating to the IP address.

        {¶ 8} Detective Richard Smith testified next. Detective Smith testified that based on

a report from Time Warner Cable that the IP address from which the complaint was sent

matched the IP address of Kinsworthy's home on the date in question, a search warrant was
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issued to retrieve the devices from which the complaint could have been sent. Among the

devices seized was a Dell laptop computer containing the name "Erica Radcliffe."

        {¶ 9} A forensic computer examiner for the Warren County Technical Crimes Unit,




1. A security manager for Tim Warner Cable, Adam Lawrence Huxell, testified that the IP address,
71.67.241.70, was assigned to the cable modem that was associated with Kinsworthy's account during the time
that the complaint was sent on September 15, 2012.
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Office Mark Bedwell, testified that he received the Dell laptop computer that was seized from

Kinsworthy's residence. Using a Forensic Recovery Evidence Device, Officer Bedwell was

able to determine that the Dell laptop had been used to search the internet for information

regarding Wall. He further learned that the laptop had been used to access the Ohio

Department of Education website in order to print a letter of admonishment against Wall.

Officer Bedwell also discovered that, on the same day the complaint was filed, the computer

had been used to search for complaints about teachers involved in posting nude photographs

on dating websites. Finally, Officer Bedwell testified that, on September 15, 2012, the Dell

laptop had been used to access the PublicSchoolWORKS website.

       {¶ 10} Finally, Erica Evans testified.    Erica testified that her maiden name was

Radcliffe. Evans is the sister of Kinsworthy's fiancé. She testified that the Dell laptop

belonged to her, but that she had lent it to her sister who lives at the same address as

Kinsworthy. Evans testified that she was aware Wall was Kinsworthy's ex-girlfriend and had

"a little bit" of knowledge of the negative interactions between the two. Finally, Evans

testified that she did not have any motivation to contact Little Miami School District in regard

to Wall.

       {¶ 11} On May 24, 2013, after hearing all of the evidence, the jury found Kinsworthy

guilty of violating the CPO. On the same date, the trial court sentenced Kinsworthy to five

months in jail and a $1,000 fine.        The court ordered that the sentence be served

consecutively with Kinsworthy's felony sentence in Warren County Common Pleas Court

Case No. 12CR28221.

       {¶ 12} Kinsworthy appeals from that conviction and sentence, raising two assignments

of error for our review.

       {¶ 13} Assignment of Error No. 1:

       {¶ 14} THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW AND/OR
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AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE TO SUSTAIN [KINSWORTHY'S]

CONVICTION.

       {¶ 15} The legal concepts of sufficiency of the evidence and weight of the evidence

are separate and distinct. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). "In reviewing

the sufficiency of the evidence underlying a criminal conviction, an appellate court examines

the evidence in order to determine whether such evidence, if believed, would support a

conviction." State v. Boles, 12th Dist. Brown No. CA2012-06-012, 2013-Ohio-5202, ¶ 34.

"The 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." State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417,

¶ 37, quoting State v. Jenks, 61 Ohio St .3d 259 (1991), paragraph two of the syllabus.

       {¶ 16} On the other hand, "a manifest weight challenge concerns the inclination of the

greater amount of credible evidence, offered in a trial, to support one side of the issue rather

than the other." State v. Cummings, 12th Dist. Butler No. CA2006-09-224, 2007-Ohio-4970,

¶ 12. In determining whether a conviction is against the manifest weight of the evidence, the

court, reviewing the entire record, weighs the evidence and all reasonable inferences,

considers the credibility of witnesses, and determines whether in resolving conflicts in the

evidence, the trier of fact 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. Hibbard, 12th

Dist. Butler Nos. CA2001-12-276, CA2001-12-286, 2003-Ohio-707, ¶ 10. A unanimous

concurrence of all three judges on the court of appeals panel reviewing the case is required

to reverse a judgment on the weight of the evidence in a jury trial. Thompkins at 389.

       {¶ 17} "Because sufficiency is required to take a case to the jury, a finding that a

conviction is supported by the weight of the evidence must necessarily include a finding of

sufficiency. Thus, a determination that a conviction is supported by the weight of the
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evidence will also be dispositive of the issue of sufficiency." State v. Malott, 12th Dist. Butler

Nos. CA2007-02-006, CA2007-02-007, CA2007-02-008, 2008-Ohio-2114, ¶ 18; State v.

Wilson, 12th Dist. Warren No. CA2006-01-007, 2007-Ohio-2298, ¶ 35. Therefore, we will

first examine whether Kinsworthy's convictions are supported by the manifest weight of the

evidence.

       {¶ 18} R.C. 2919.27(A)(1) provides that "[n]o person shall recklessly violate the terms

of * * * [a] protection order issued * * * pursuant to section * * * 3113.31 of the Revised

Code." In the present case, the CPO issued against Kinsworthy and in favor of Wall and her

son was introduced into evidence as state's exhibit 1. That CPO included a provision which

prohibited Kinsworthy from interfering with or having any contact with Wall's place of

employment.

       {¶ 19} The     evidence     established     that    the    complaint     made     through

PublicSchoolWORKS regarding Wall came from the IP address which corresponds with

Kinsworthy's modem. Evidence established that a Dell laptop which was seized from

Kinsworthy's residence had been used to perform internet searches regarding Wall, and had

accessed the PublicSchoolWorks website.

       {¶ 20} While there was no direct evidence that Kinsworthy was the person who used

the computer to access the website and send the complaint, there is circumstantial evidence

to support that inference. As stated above, Wall testified that she believed Kinsworthy was

the source of the complaint because of (1) the CPO, (2) other proceedings between the two

that where ongoing, and (3) his being "the only person I could think of who would want to

attempt to harm me professionally at my job, or harm me in any sort of way." That testimony

was offered to show that Kinsworthy had motive to submit the complaint. "Motive is a mental

state which induces an act; it is a circumstantial fact used to strengthen an inference, drawn

from other evidence, that an act was done." State v. Nichols, 7 Ohio App.2d 194, 196 (10th
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Dist.1996). There was no evidence introduced to suggest that any other person possessed

both the opportunity and motive to submit the complaint from the Dell laptop retrieved from

Kinsworthy's residence.

       {¶ 21} In sum, the evidence established that Kinsworthy had access to the device from

which the complaint was sent as well as the motive to send the complaint to harm his ex-

girlfriend who had obtained a protection order against him. We do not find that 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.             Accordingly, Kinsworthy's conviction was

supported by the manifest weight of the evidence. In turn, Kinsworthy's convictions were also

supported by sufficient evidence.

       {¶ 22} In light of the foregoing, having held that Kinsworthy's conviction was supported

by the manifest weight of the evidence, Kinsworthy's first assignment of error is overruled.

       {¶ 23} Assignment of Error No. 2:

       {¶ 24} THE TRIAL COURT ERRED AS A MATTER OF LAW BY IMPROPERLY

SENTENCING [KINSWORTHY].

       {¶ 25} Within this assignment of error, Kinsworthy raises three issues for or review: (1)

"[t]he trial court erred by ordering [Kinsworthy's] sentence in this case to run consecutive to

the prison sentence he received under trial case number 2012 CR 28221," (2) "[t]he trial

court did not consider the purposes and principles of misdemeanor sentencing before

imposing a jail term for [Kinsworthy's] conviction," and (3) "[t]he trial court erred by ordering

[Kinsworthy] to pay financial sanctions without a hearing and/or determining [Kinsworthy's]

ability to pay."

                                  1. Consecutive Sentences

       {¶ 26} R.C. 2929.41(A) provides as follows:

               (A) * * * Except as provided in division (B)(3) of this section, a jail
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              term or sentence of imprisonment for misdemeanor shall be
              served concurrently with a prison term or sentence of
              imprisonment for felony served in a state or federal correctional
              institution.

       {¶ 27} Division (B)(3) of R.C. 2929.41 does not apply to the case at bar. Although

R.C. 2929.41(A) was excised by State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, the

identical language of R.C. 2929.41(A) was reenacted in full by the legislature in 2011

Am.Sub.H.B. No. 86, effective September 30, 2011.

       {¶ 28} In the present case, Kinsworthy was convicted of a first degree misdemeanor

and sentenced to a five-month jail term, to be served consecutively with his prior, unrelated

felony sentence. Pursuant to R.C. 2929.41(A), the state concedes that the trial court erred in

ordering that Kinsworthy's sentence be run consecutively with his felony prison sentence.

We agree. Accordingly, Kinsworthy's second assignment of error is sustained insofar as it

pertains to his argument that the trial court erred in ordering that his sentence in the present

case be served consecutively with his sentence in a prior, unrelated felony sentence.

                                2. R.C. 2929.21 and 2929.22

       {¶ 29} Kinsworthy next argues that the trial court erred when it failed to address the

purposes and principles of misdemeanor sentencing pursuant to R.C. 2929.21 and make

findings regarding the factors found in 2929.22.

       {¶ 30} Pursuant to R.C. 2929.21 and 2929.22, trial courts have broad discretion when

determining what sentence is appropriate for each given misdemeanor case.                When

determining the appropriate sentence, the trial court must be guided by the purposes of

misdemeanor sentencing, are "to protect the public from future crime by the offender and

others and to punish the offender." R.C. 2929.21(A). The trial court must also consider the

factors listed in R.C. 2929.22(B)(1), including the nature and circumstances of the offense,

and may consider any other factors that are relevant to achieving the purposes and principles


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of misdemeanor sentencing. R.C. 2929.22(B)(2). Although it is preferable that the trial court

affirmatively state on the record that it has considered the criteria set forth in R.C. 2929.21

and R.C. 2929.22, the statute does not mandate that the record state that the trial court

considered the applicable statutory factors. A trial court is presumed to have considered the

statutory factors when the sentence is "within the statutory limits and there is no affirmative

showing that the trial court failed to do so." State v. Collins, 3d Dist. Allen Nos. 1-05-15, 1-

05-21, 2005-Ohio-4755, ¶ 12.

       {¶ 31} We review a trial court's sentence on a misdemeanor violation under an abuse

of discretion standard. State v. Lunsford, 12th Dist. Brown No. CA2010-10-021, 2011-Ohio-

6529, ¶ 25. An abuse of discretion connotes more than an error in law or judgment; it implies

that the court's attitude is unreasonable, arbitrary, or unconscionable. State v. Barnes, 94

Ohio St.3d 21, 23 (2002).

       {¶ 32} The sentence imposed on Kinsworthy falls within the statutory limits, and there

is no affirmative indication that the trial court failed to consider the factors contained in R.C.

2929.21 and R.C. 2929.22. Consequently, the trial court is presumed to have complied with

R.C. 2929.21 and R.C. 2929.22. Therefore, we find that the trial court did not abuse its

discretion in sentencing Kinsworthy.

                                   3. Financial Sanctions

       {¶ 33} Finally, Kinsworthy argues that the trial court erred when it imposed financial

sanctions without holding a hearing to determine his ability to pay.

       {¶ 34} R.C. 2929.28(B) provides, "the court may hold a hearing to determine whether

the offender is able to pay the financial sanction imposed pursuant to this section or court

costs or is likely in the future to be able to pay the sanction or costs." (Emphasis added.)

"Ohio courts have interpreted R.C. 2929.28(B) to mean that a hearing to determine ability to

pay is not required; however, there must, at minimum, 'be some evidence in the record that
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the court considered the defendant's present and future ability to pay the sanction imposed.'"

State v. Rhoda, 6th Dist. No. F-06-007, 2006-Ohio-6291, ¶ 15, quoting State v. Reigsecker,

6th Dist. Fulton No. F-03-022, 2004-Ohio-3808, ¶ 11.

       {¶ 35} In the present case, the trial court did not hold a separate hearing to determine

Kinsworthy's present and future ability to pay the fine. However, the trial court was made

aware at the sentencing hearing that Kinsworthy is 100 percent disabled and therefore would

receive benefits. Accordingly, we find that there was evidence in the record that the court

considered Kinsworthy's present and future ability to pay the fine.

       {¶ 36} In light of the foregoing, having found that (1) the trial court erred in ordering

that Kinsworthy's misdemeanor sentence run consecutive with his prior, unrelated felony

sentence, (2) the trial court did not err in failing to make findings under R.C. 2929.21 and

R.C. 2929.22 where Kinsworthy's sentence fell within the statutory range, and (3) the trial

court did not err in imposing a fine without holding a hearing where there was some evidence

of Kinsworthy's present and future ability to pay the fine, Kinsworthy's second assignment of

error is sustained in part and overruled in part.

       {¶ 37} The trial court's sentence is modified to order that Kinsworthy's five-month jail

sentence in the present case be served concurrently with his unrelated felony sentence in

Warren County Common Pleas Court Case No. 12CR28221. The judgment of the trial court

is affirmed in all other respects.


       S. POWELL and HENDRICKSON, JJ., concur.




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