[Cite as State v. Swisher, 2023-Ohio-3327.]

STATE OF OHIO ) IN THE COURT OF APPEALS

)ss: NINTH JUDICIAL DISTRICT

COUNTY OF SUMMIT )

STATE OF OHIO

Appellee

v.

JAMES EARL SWISHER

Appellant

C.A. No. 30169

APPEAL FROM JUDGMENT

ENTERED IN THE

COURT OF COMMON PLEAS

COUNTY OF SUMMIT, OHIO

CASE No. CR 20 07 1697

DECISION AND JOURNAL ENTRY

Dated: September 20, 2023

HENSAL, Judge.

{¶1} Defendant-Appellant, James Swisher, appeals his conviction in the Summit County 

Court of Common Pleas. This Court affirms.

I.

{¶2} A grand jury indicted Mr. Swisher on one count of domestic violence. The State 

originally charged him with a fourth-degree felony based on a prior conviction, but Mr. Swisher 

successfully challenged the State’s proof in support of that enhancement. A jury ultimately 

convicted him of first-degree misdemeanor domestic violence. The trial court sentenced him to 

jail time, waived any fines, and ordered him to pay court costs. Mr. Swisher did not move to stay 

the execution of his judgment for purposes of filing an appeal.

{¶3} Mr. Swisher now appeals from his judgment of conviction and raises two 

assignments of error for review. Because this Court must overrule both assignments of error for 

the same reason, we consolidate them for purposes of our discussion. 
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II.

ASSIGNMENT OF ERROR I

THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT 

APPELLANT SWISHER KNOWINGLY CAUSED OR ATTEMPTED TO 

CAUSE PHYSICAL HARM AND THUS THERE IS INSUFFICIENT 

EVIDENCE FOR THE JURY VERDICT AND THE COURT ERRED IN 

DENYING THE DEFENDANT’S RULE 29 MOTION.

ASSIGNMENT OF ERROR II

THE VERDICT AND CONVICTION IS AGAINST THE MANIFEST WEIGHT 

OF THE EVIDENCE AS THE JURY CLEARLY LOST ITS WAY AND THUS 

CREATED A MANIFEST MISCARRIAGE OF JUSTICE.

{¶4} In his assignments of error, Mr. Swisher challenges the sufficiency and weight of 

the evidence underlying his conviction. Because his assignments of error are moot, this Court 

declines to address their merits.

{¶5} “As a general rule, courts will not resolve issues which are moot.” Boncek v. 

Stewart, 9th Dist. Summit No. 21054, 2002-Ohio-5778, ¶ 10. “A case is moot if it involves ‘no 

actual genuine controversy which can definitely affect the parties’ existing legal relationship.’” 

State v. Ross, 9th Dist. Lorain No. 18CA011284, 2019-Ohio-323, ¶ 6, quoting Harris v. Akron, 

9th Dist. Summit No. 24499, 2009-Ohio-3865, ¶ 7. 

“Where a defendant, convicted of a criminal [misdemeanor] offense, has 

voluntarily paid the fine or completed the sentence for that offense, an appeal is 

moot when no evidence is offered from which an inference can be drawn that the 

defendant will suffer some collateral disability or loss of civil rights from such 

judgment or conviction.”

(Alteration sic.) State v. Carnahan, 9th Dist. Wayne No. 18AP0029, 2019-Ohio-3217, ¶ 6, quoting 

State v. Wilson, 41 Ohio St.2d 236 (1975), syllabus. A misdemeanant must request a stay pending 

appeal or otherwise “offer evidence from which this Court could infer that [he] would suffer 

collateral disability or loss of civil rights stemming from the misdemeanor conviction * * *.” State 

v. Boone, 9th Dist. Summit No. 26104, 2013-Ohio-2664, ¶ 7. The burden of presenting evidence 
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or argument that an appeal is not moot falls on the defendant. State v. Golston, 71 Ohio St.3d 224, 

226 (1994).

{¶6} The trial court only sentenced Mr. Swisher to ninety days in jail and waived the 

imposition of any fine. Mr. Swisher never asked the court to stay the execution of his sentence so 

that he might appeal. Compare State v. Higby, 9th Dist. Wayne No. 10CA0054, 2011-Ohio-4996, 

¶ 2. Nor did he leave his court costs unpaid.1 Compare Carnahan at ¶ 8. Although the State 

argued mootness in its appellate brief, Mr. Swisher did not file a reply brief or otherwise respond 

to the State’s argument. He also has not set forth any evidence or argument to establish the 

existence of a collateral disability or loss of civil rights stemming from his conviction. Compare 

State v. Fletcher, 9th Dist. Summit No. 23838, 2008-Ohio-3105, ¶ 11 (appeal from misdemeanor 

domestic violence conviction not moot where defendant alleged collateral disability). It was Mr. 

Swisher’s burden to establish his appeal was not moot. See Golston at 226.

{¶7} The record reflects Mr. Swisher voluntarily completed his sentence without seeking 

a stay and paid his court costs. Because he has not offered any argument that his misdemeanor 

conviction will subject him to a collateral disability or loss of civil rights, this Court must conclude 

his appeal is moot. See State v. Miller, 9th Dist. Summit No. 23240, 2007-Ohio-370, ¶ 19. 

Accordingly, Mr. Swisher’s assignments of error are overruled on that basis.

III.

{¶8} Mr. Swisher’s assignments of error are overruled as moot. The judgment of the 

Summit County Court of Common Pleas is affirmed.

1 The clerk of courts confirmed Mr. Swisher has already paid his court costs. See State v. Kotowski, 

9th Dist. Wayne Nos. 20AP0026, 20AP0029, 2021-Ohio-3068, ¶ 12 (court may look outside 

appellate record to determine mootness). 
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Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common 

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy 

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period 

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to 

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the 

docket, pursuant to App.R. 30.

Costs taxed to Appellant.

JENNIFER HENSAL

FOR THE COURT

SUTTON, P. J.

STEVENSON, J.

CONCUR.

APPEARANCES:

RICHARD P. KUTUCHIEF, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant 

Prosecuting Attorney, for Appellee.