[Cite as State v. Garrison, 2018-Ohio-463.]

COURT OF APPEALS 

MUSKINGUM COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsSTEPHEN M. GARRISON 

 Defendant-Appellant 

JUDGES: 

Hon. John W. Wise, P.J. 

Hon. William B. Hoffman, J. 

Hon. Craig R. Baldwin, J. 

Case No. CT2017-0018 

O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court 

of Common Pleas, Case No. CR2016-0373 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: February 2, 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 St., P.O. Box 189 

Zanesville, Ohio 43702-0189 
Muskingum County, Case No. CT2017-0018 2

Hoffman, J. 

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

Muskingum County Common Pleas Court convicting him of domestic violence (R.C. 

2919.25(A)) and sentencing him to thirty-six months incarceration. Appellee is the state 

of Ohio. 

STATEMENT OF THE FACTS AND CASE 

{¶2} On November 8, 2016, Appellant and his girlfriend of twelve years, N.D., 

were watching The Walking Dead on television at their neighbor’s apartment. N.D. 

walked back to the apartment she shared with Appellant and their two children to get 

something to drink. Her friend Miranda Hardy came to the apartment and showed N.D. 

a conversation on her phone between Hardy and Appellant in which they were sexting. 

{¶3} N.D. confronted Appellant about the phone messages. Appellant denied it, 

became upset, and spit in N.D.’s face. He grabbed the phone from N.D. and grabbed her 

left arm, leaving a bruise. He shoved her against a wall and scratched her, and also threw 

tea on her shirt. After Appellant spit in her face, N.D. grabbed Appellant’s genitalia and 

punched him. 

{¶4} Hardy witnessed Appellant grabbing N.D.’s arm and pushing her down the 

hallway. N.D. asked Hardy to call 911. 

{¶5} Deputy Brandon Hamilton responded to the 911 call. When he arrived on 

the scene, N.D. was frantic and pacing. He noticed bruising on the inside of N.D.’s arm. 

He took photographs of her arm, a scratch on her stomach, and the tea on her shirt. 
Muskingum County, Case No. CT2017-0018 3

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

of domestic violence with two prior offenses, a felony of the third degree. The case 

proceeded to jury trial. 

{¶7} Appellant testified at trial did not hit, push, or attack N.D. He denied spitting 

in her face, claiming due to a partial plate, he cannot spit without his tooth coming out. 

He testified he contacted Hardy about N.D.’s allegations Hardy and her boyfriend stole 

something from N.D. and Appellant. When N.D. became upset with him for contacting 

Hardy, he went to the neighbor’s apartment to stop the argument. Eventually he went 

back to the apartment to get cigarette money from N.D. N.D. met him in the hallway, 

where she called him a liar and a cheat, punched him in the throat, and grabbed his 

genitals and squeezed. 

{¶8} Appellant was convicted as charged and sentenced to thirty-six months 

incarceration. From the March 9, 2017 judgment of conviction and sentence Appellant 

prosecutes his appeal, assigning as error: 

 I. THE TRIAL COURT ERRED BY ADMITTING STATE’S EXHIBITS 

ONE THROUGH FIVE SINCE THE PHOTOGRAPHS DID NOT 

ACCURATELY DEPICT THE CONTENTS IN VIOLATION OF 

APPELLANT’S RIGHT TO A FAIR AND IMPARTIAL TRIAL. 

 II. THE TRIAL COURT VIOLATED APPELLANT’S RIGHTS TO DUE 

PROCESS AND A FAIR TRIAL WHEN IT FAILED TO GIVE A JURY 

INSTRUCTION AS TO THE LESSER-INCLUDED OFFENSE OF 
Muskingum County, Case No. CT2017-0018 4

DISORDERLY CONDUCT OR A JURY INSTRUCTION OF SELFDEFENSE WHEN THE EVIDENCE AT TRIAL WARRANTED BOTH. 

 III. THE APPELLANT WAS DEPRIVED OF THE EFFECTIVE 

ASSISTANCE OF COUNSEL CONTRARY TO THE STATE AND 

FEDERAL CONSTITUTIONS. 

 IV. THE GUILTY VERDICT FOR DOMESTIC VIOLENCE AGAINST 

APPELLANT WAS AGAINST THE MANIFEST WEIGHT OF THE 

EVIDENCE AND CONTRARY TO LAW. 

 V. THE TRIAL COURT PLAINLY ERRED IN IMPOSING THE 

MAXIMUM SENTENCE FOR APPELLANT’S CONVICTION RENDERING 

THE SENTENCE CONTRARY TO LAW. 

 VI. THE TRIAL COURT PLAINLY ERRED IN ASSESSING COURT 

COSTS AGAINST APPELLANT WITHOUT INQUIRING ABOUT 

APPELLANT’S PRESENT OR FUTURE ABILITY TO MAKE THE 

PAYMENTS AND SINCE THE IMPOSITION OF COURT COSTS MAY 

NOT BE IMPOSED UPON DEFENDANTS AS CRIMINALLY 

ENFORCEABLE SANCTIONS BUT MUST BE PURSUED IN CIVIL 

COLLECTION PROCEEDINGS. 

I. 

{¶9} Appellant argues the court erred in admitting the photographs of N.D. taken 

at the scene by Deputy Brandon Hamilton because the testimony established they did not 

accurately depict N.D.’s injuries. 
Muskingum County, Case No. CT2017-0018 5

{¶10} Evid. R. 901(A) provides, “The requirement of authentication or 

identification as a condition precedent to admissibility is satisfied by evidence sufficient 

to support a finding that the matter in question is what its proponent claims.” Accordingly, 

a photograph is admissible in evidence if it is shown to be an accurate representation of 

what or whom it purports to represent. State v. Hannah, 54 Ohio St.2d 84, 88, 374 N.E.2d 

1359, 1362–63 (1978). “A duplicate is admissible to the same extent as an original unless 

(1) a genuine question is raised as to the authenticity of the original or (2) in the 

circumstances it would be unfair to admit the duplicate in lieu of the original.” Evid. R. 

1003. 

{¶11} The photographs admitted into evidence were copies of the original 

photographs taken by Deputy Hamilton. Dep. Hamilton initially testified the photographs 

were a fair and accurate depiction of N.D. on the night in question. Tr. 193. However, he 

later noted the photographs did not show the tea he observed on her shirt, and did not 

depict the scratch. Tr. 194,195. 

{¶12} On cross-examination, the deputy testified the copies were not as clear as 

the photographs he took because they were missing the stains on her shirt and the 

scratch on her stomach, and the bruise on her arm appeared darker in real life than on 

the copy of the photograph. Tr. 204, 207. He testified the pictures were accurate, but 

the quality was not good. Tr. 205. However, on further questioning, he testified the 

photos were not an accurate depiction of what she looked like on the night in question. 

Tr. 206. Finally, on redirect examination, he testified the photographs were not as clear 

as what they should be. Tr. 219. 
Muskingum County, Case No. CT2017-0018 6

{¶13} Appellant objected to admission of the photographs on the basis they were 

not accurate. The court admitted the photographs, stating, “The accuracy will have to be 

argued.” Tr. 237. 

{¶14} Unless the defendant has been materially prejudiced by the improper 

admission of evidence, an appellate court should not disturb the decision of the trial court. 

State v. Barnes, 94 Ohio St.3d 21, 2002-Ohio-68, 759 N.E.2d 1240 (2002). Assuming 

arguendo admission of the photographs was error, Appellant has not demonstrated 

prejudice from their admission. The deputy testified the photographs did not accurately 

depict the extent of her bruising, nor the existence of tea on her shirt and a scratch on her 

stomach. Admission of photographs depicting less serious and fewer injuries than those 

testified to by N.D. was not prejudicial to Appellant’s case, and Appellant has not 

demonstrated prejudicial error. 

{¶15} The first assignment of error is overruled. 

II. 

{¶16} In his second assignment of error, Appellant argues the trial court 

committed plain error in failing to instruct the jury on the lesser-included offense of 

disorderly conduct and the defense of self-defense. 

{¶17} Appellant concedes he did not request an instruction on the lesser-included 

offense of disorderly conduct or on self-defense. Failure to object before the jury retires, 

absent plain error, constitutes waiver. State v. Williford, 49 Ohio St.3d 247, 551 N.E.2d 

1279 (1990). The Ohio Supreme Court has recently clarified the standard of review for 

plain error: 
Muskingum County, Case No. CT2017-0018 7

 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 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 
Muskingum County, Case No. CT2017-0018 8

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} 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. 

{¶19} Appellant argues he was entitled to an instruction on the lesser-included 

offense of disorderly conduct as defined by R.C. 2917.11(A)(1), “No person shall 

recklessly cause inconvenience, annoyance, or alarm to another by...[e]ngaging in 

fighting, in threatening harm to persons or property, or in violent or turbulent behavior[.]” 

He was convicted of domestic violence in violation of R.C. 2919.25(A), which provides, 

“No person shall knowingly cause or attempt to cause physical harm to a family or 

household member.” 

{¶20} Appellant argues it is uncontroverted N.D. punched him in the throat and 

grabbed his groin, which fits in the definition of fighting. However, he testified he did not 

engage in fighting, and simply withstood her attack. Therefore, the evidence does not 

reasonably support an acquittal of domestic violence and a conviction upon the lesser 

included offense of domestic violence. Appellant has not demonstrated plain error in the 

court’s failure to sua sponte instruct the jury on disorderly conduct. 

{¶21} Appellant also argues the court committed plain error in failing to instruct 

the jury on self-defense. In order to establish the affirmative defense of self-defense, the 
Muskingum County, Case No. CT2017-0018 9

Appellant generally has to show three elements: (1) the defendant was not at fault in 

creating the violent situation; (2) the defendant has a bona fide belief that he was in 

imminent danger of death or great bodily harm and that his only means of escape was 

the use of force; and (3) the defendant did not violate any duty to retreat. State v. Robbins, 

58 Ohio St.2d 74, 388 N.E.2d 755 (1979). 

{¶22} In State v. Perry, 5th Dist. Richland No. 02-CA-77, 2003-Ohio-6097, the 

defendant argued the court erred in failing to instruct the jury on self-defense in his 

domestic violence prosecution. However, he testified at trial he never hit her. We 

accordingly found no error in refusing to give the self-defense instruction. Id. at ¶27. 

Likewise, we find no plain error here in the court’s failure to instruct the jury on selfdefense as Appellant testified he did not touch N.D. 

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

III. 

{¶24} In his third assignment of error, Appellant argues his trial counsel was 

ineffective. 

{¶25} 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 
Muskingum County, Case No. CT2017-0018 10

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

having produced a just result. Id. 

{¶26} Appellant first argues counsel was ineffective in failing to tell the jury during 

voir dire or opening statement they must acquit if the State failed to prove any element of 

the offense. The trial court instructed the jury, “The Defendant must be acquitted unless 

the State produces evidence which convinces you beyond a reasonable doubt of every 

essential element of the offense charged in the indictment.” Tr. 347. 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. Therefore, Appellant has not demonstrated if counsel 

had raised this issue to the jury during voir dire or opening statement, the result of the 

proceeding would have been different. 

{¶27} Appellant next argues counsel was ineffective in failing to follow up 

regarding witness Phil Smith’s testimony he was confused as to how the victim would 

have a bruise so quickly after the incident. Appellant argues instead of giving up after the 

court sustained objections on the basis of foundation and speculation, counsel should 

have attempted to lay a proper foundation regarding Smith’s knowledge of bruising. He 

argues the error became more prejudicial when counsel failed to object to testimony from 

Deputy Hamilton regarding his opinion the bruise appeared to be fresh. The record does 

not demonstrate had counsel questioned Smith further, she would have been able to lay 

a foundation for Smith to express an opinion the bruise did not appear fresh. Appellant 

has not demonstrated prejudice. 

{¶28} Appellant argues counsel failed to file a motion for appointment of a medical 

expert to review the photographs. Appellant concedes we have no way of knowing if the 
Muskingum County, Case No. CT2017-0018 11

opinion of an appointed medical expert would be favorable to him or prejudicial to him, 

and therefore he has not demonstrated a reasonable probability of a change in the 

outcome had counsel sought appointment of an expert. 

{¶29} Next Appellant argues counsel erred in continuing to cross-examine Deputy 

Hamilton regarding the accuracy of the photographs after eliciting testimony the pictures 

did not accurately depict the injuries. He specifically argues the following question was 

ineffective: 

 Q: Are you asking the jury to believe your testimony over what is 

depicted in those photographs in your hand? 

 A: I would just like to see better quality photographs, is all I’m saying. 

Tr. 208. 

{¶30} The question followed counsel’s cross-examination of the officer concerning 

whether he could recall independently what N.D.’s bruises looked like when he had 

responded to about 150 calls after this incident. Appellant further argues counsel engaged 

in unnecessary cross-examination of Deputy Hamilton regarding his experience with 

bruising and his memory of the appearance of the scratch on her stomach. He argues 

this allowed the jury to hear cumulative evidence which bolstered the State’s case. 

{¶31} 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 cross-examination cannot form the 
Muskingum County, Case No. CT2017-0018 12

basis for a claim of ineffective assistance of counsel. Id. Appellant has not demonstrated 

counsel was ineffective in the cross-examination of Deputy Hamilton. 

{¶32} Appellant argues counsel was ineffective by stipulating to his two prior 

convictions rather than requiring the State to call witnesses from Logan County to 

authenticate the judgments. The decision to stipulate to prior convictions may be sound 

trial strategy, avoiding testimony which further emphasized Appellant’s prior record. See 

State v. Blackburn, 11th Dist. Trumbull No. 2001-T-0052, 2003-Ohio-605, ¶ 39. Further, 

Appellant has not demonstrated had counsel not entered the stipulation, the State would 

have been unable to prove the prior convictions and the result of the proceeding would 

have been different. 

{¶33} Appellant argues counsel was ineffective for calling Detective Steve Welker 

as a witness and questioning him regarding his failure to obtain an interpreter before 

talking to N.D., who is hearing impaired. It appears counsel called Welker to attempt to 

demonstrate the police investigation and reports of the incident were incomplete. We 

have reviewed the testimony of Detective Welker and the entire transcript, and although 

Welker’s testimony was not particularly helpful to Appellant’s case, Appellant has not 

demonstrated in the absence of Welker’s testimony, the result of the proceeding would 

have been different. 

{¶34} Appellant argues during the cross-examination of Detective Welker, 

counsel failed to object to speculative testimony. He argues without objection, Welker 

testified N.D. knew someone in another apartment heard Appellant yelling at her, but 

because the physical contact would not have been audible in another apartment, this 

witness would not have added anything the police did not already know. Tr. 252-253. 
Muskingum County, Case No. CT2017-0018 13

Competent counsel may reasonably hesitate to object to potential errors in the jury's 

presence because objections may be considered bothersome by the jury and may tend 

to interrupt the flow of a trial. State v. Howell, 5th Dist. Delaware No. 15 CAA 12 0098, 

2016-Ohio-7749, ¶ 39, appeal not allowed, 150 Ohio St.3d 1409, 2017-Ohio-6964, 78 

N.E.3d 909. Thus counsel’s failure to object may have been sound trial strategy. Further, 

Appellant has not demonstrated in the absence of this testimony concerning an unknown 

possible witness, the result of the trial would have been different. 

{¶35} Appellant argues counsel was ineffective in putting him on the witness 

stand. He argues his testimony allowed the prosecutor to cross-examine him concerning 

his prior convictions, as well as allegations in a pending case against Appellant involving 

N.D., and a prior case in which he was charged but not convicted. 

{¶36} The advice provided by counsel to his or her client regarding the decision 

to testify is “a paradigm of the type of tactical decision that cannot be challenged as 

evidence of ineffective assistance.” State v. Winchester, 8th Dist. Cuyahoga No. 79739, 

2002-Ohio-2130, ¶ 12, citing Hutchins v. Garrison, 724 F.2d 1425, 1436 (C.A.4, 1983), 

cert. denied, 464 U.S. 1065, 104 S.Ct. 750, 79 L.Ed.2d 207 (1984). See, also, Jones v. 

Murray (C.A.4, 1991), 947 F.2d 1106, 1116, fn. 6. Nonetheless, a claim for ineffective 

assistance of counsel may be successful if the record demonstrates the defendant's 

decision whether or not to testify was the result of coercion. Id., citing Lema v. United 

States, 987 F.2d 48, 52-53 (C.A.1, 1993). Nothing in the record suggests Appellant’s 

decision to testify was the result of coercion. A defendant in a criminal case has the due 

process right to take the witness stand and to testify in his or her own defense. Rock v. 

Arkansas, 483 U.S. 44, 51, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987). The record does not 
Muskingum County, Case No. CT2017-0018 14

demonstrate Appellant did not choose to testify of his own free will, and he therefore 

cannot challenge his decision to testify as ineffective assistance of counsel. 

{¶37} Finally, Appellant argues counsel was ineffective for failing to request jury 

instructions for the lesser-included offense of disorderly conduct or self-defense. As 

discussed in Appellant’s second assignment of error earlier in this opinion, the evidence 

in the case did not support either instruction. Appellant has not demonstrated had counsel 

requested either instruction, the result of the proceeding would have been different. 

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

IV. 

{¶39} In his fourth assignment of error, Appellant argues the conviction is against 

the manifest weight of the evidence. 

{¶40} 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). 

{¶41} Appellant was convicted of domestic violence in violation of R.C. 

2929.25(A), which provides, “No person shall knowingly cause or attempt to cause 

physical harm to a family or household member.” 
Muskingum County, Case No. CT2017-0018 15

{¶42} Appellant argues the photographs were not good quality, and questions 

were raised concerning the freshness of the bruise on N.D.’s arm. He notes N.D. had 

prior convictions for domestic violence and falsification, and admitted to punching 

Appellant in the throat and grabbing his genitals. He takes issue with the lack of a deaf 

interpreter when police arrived on the scene and spoke to N.D., and with the failure of the 

police to also charge N.D. with domestic violence. He argues Hardy’s testimony is not 

credible because she did not see N.D. punch or grab him, and the number of times he 

spit on N.D. was unclear from the testimony. 

{¶43} N.D. and Hardy both testified Appellant spit on N.D., grabbed her arm, 

pushed her, and threw tea on her. N.D. testified the bruise on her arm was caused by 

Appellant. Hardy testified she saw Appellant grab N.D.’s arm in the same location as the 

bruise. Deputy Hamilton testified that in his recollection, the bruise was darker than it 

appeared in the photograph, and it appeared to be fresh. While Phil Smith testified he 

did not see the physical altercation between Appellant and N.D., Hardy testified he was 

not there when Appellant put his hands on N.D. Based on the testimony presented at 

trial, we do not find the jury lost its way in convicting Appellant of domestic violence, and 

the judgment is not against the manifest weight of the evidence. 

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

V. 

{¶45} In his fifth assignment of error, Appellant argues the court erred in 

sentencing him to the maximum sentence of thirty-six months. 
Muskingum County, Case No. CT2017-0018 16

{¶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 

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 
Muskingum County, Case No. CT2017-0018 17

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 

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} Appellant argues the victim induced or facilitated the offense, he acted 

under strong provocation from the victim and Miranda Hardy, he did not expect to cause 

physical harm to N.D. by grabbing her arm, and there were substantial grounds to mitigate 

his conduct, including the court’s failure to instruct the jury on the lesser-included offense 

of disorderly conduct. 
Muskingum County, Case No. CT2017-0018 18

{¶53} The judgment entry of sentencing recites the trial judge considered the 

principles and purposes of sentencing under R.C. 2929.11 and balanced the seriousness 

and recidivism factors under R.C. 2929.12. The court further noted in the judgment 

Appellant was on community control at the time of the offense, he has three prior felony 

convictions, there were minor children present at the time of the commission of the 

offense, and Appellant was charged with two new felony offenses while on bond in the 

instant case. 

{¶54} At the sentencing hearing, the trial court noted on the record: 

 First, you were on community control out of Logan County at the time 

this occurred, for criminal nonsupport. And at that point in time, for a period 

of time from 3-3-15 through sometime in 2016, they didn’t know your 

whereabouts. They suspended your community control. They scheduled 

four hearings between August – between January of ’16 and August of ’16, 

which were never – were always continued. They did, on August the 24th

of ’16, indicate that your community control was continued. Therefore, you 

were not being very cooperative on community control. 

 You have three prior felonies; convictions. These include 

intimidation of a witness, as well as a felony domestic violence, as well as 

trafficking in marijuana. 

 You had attended the CBCF at one point in time. Though, you do 

not mention that at the presentence investigation in this case. 
Muskingum County, Case No. CT2017-0018 19

 Court also finds that at the time you were out on bond you resulted 

in new charges being filed against you and the revocation of your bond for 

aggravated burglary and domestic violence involving the same victim. 

 Therefore, the Court finds that due to the relationship and the fact 

there were children present, your prior history, and your propensity to 

commit crimes, that the maximum sentence would be appropriate in this 

case. 

Sent. Tr. 9-10. 

{¶55} Based on the findings of the court, we find no error in imposition of the 

maximum sentence in this case. The fifth assignment of error is overruled. 

VI. 

{¶56} Appellant argues the court erred in ordering him to pay court costs. 

{¶57} Appellant first argues the court erred in failing to inquire about his current 

and future ability to pay costs, as he was represented by court-appointed counsel and 

therefore clearly indigent. The record demonstrates Appellant filed an affidavit of 

indigency and counsel was appointed on December 2, 2016. However, retained counsel 

entered an appearance on January 19, 2017. 

{¶58} Appellant relies on this Court’s opinion in State v. Walker, 5th Dist. Richland 

No. 09CA88, 2016-Ohio-8615, ¶ 58, appeal not allowed, 149 Ohio St.3d 1420, 2017-

Ohio-4038, 75 N.E.3d 237, reconsideration denied, 150 Ohio St.3d 1412, 2017-Ohio6964, 78 N.E.3d 911, in which we held as follows: 
Muskingum County, Case No. CT2017-0018 20

 In State v. Joseph, 125 Ohio St.3d 76, 2010–Ohio–954, 926 N.E.2d 

278, the Supreme Court held that it is reversible error under Crim.R. 43(A) 

for a trial court to impose costs in its sentencing entry when it did not impose 

those costs in open court at the sentencing hearing. Id. at ¶ 22. The Court 

reasoned that the defendant was denied the opportunity to claim indigence 

and to seek a waiver of the payment of court costs before the trial court 

because the trial court did not mention costs at the sentencing hearing. Id. 

The same is true in the instant case. Here, appellant was not given an 

opportunity at the sentencing hearing to seek a waiver of the payment of 

costs because the trial court did not mention costs at the sentencing 

hearing. Joseph, 2010–Ohio–954 at ¶ 13. We thus vacate the order to pay 

costs and remand the matter to the trial court to permit appellant to argue 

for waiver of court costs. 

{¶59} Likewise, in State v. Pennington, 5th Dist. Guernsey No. 16CA14, 2017-

Ohio-1423, we found the trial court erred in failing to mention court costs in open court, 

thus denying the defendant and opportunity to seek a waiver of court costs. Id. at ¶¶26-

27. 

{¶60} In the instant case, the trial court informed Appellant in open court at the 

sentencing hearing, “You will also be ordered to pay the court costs in this matter.” Sent. 

Tr. 10. Therefore, the instant case is distinguishable from Walker and Pennington as 
Muskingum County, Case No. CT2017-0018 21

Appellant was informed he would be ordered to pay costs, and was given an opportunity 

to seek a waiver of payment of costs based on indigency. 

{¶61} Appellant further argues the imposition of court costs was error because 

they must be pursued in civil collection proceedings, citing State v. Eubanks, 2nd Dist. 

Champaign No. 2015-CA-39, 2017-Ohio-2681, and State v. Ragland, 2nd Dist. 

Champaign No. 2015-CA-36, 2017-Ohio-2783. The cited cases from the Second District 

found error in the inclusion of costs and court-appointed counsel fees in a postconfinement repayment plan, but did not prohibit the inclusion of court costs in the 

sentencing entry. In fact, Ragland recognized court costs would be included in the 

sentencing entry as a part of the sentence: 

 We review a trial court's imposition of a repayment schedule for court 

costs under an abuse of discretion standard. See State v. Gullett, 4th Dist. 

Gallia No. 09CA4, 2010–Ohio–2785, ¶ 10. Pursuant to R.C. 2947.23, the 

trial court was required to “include in the sentence the costs of prosecution 

* * * and render a judgment against the defendant for such costs.” However, 

court costs are distinct from criminal punishment. This is because “although 

costs in criminal cases are assessed at sentencing and are included in the 

sentencing entry, costs are not punishment, but are more akin to a civil 

judgment for money.” State v. Threatt, 108 Ohio St.3d 277, 2006–Ohio–

905, 843 N.E.2d 164, ¶ 15. An order to pay court costs is essentially a 

judgment on a contractual debt where the court is the creditor and the party 

ordered to pay court costs is the debtor. State v. Lamb, 163 Ohio App.3d 
Muskingum County, Case No. CT2017-0018 22

290, 2005–Ohio–4741, 837 N.E.2d 833, ¶ 13 (2d Dist.). As such, the 

creditor, i.e., the court, can collect only the money it is due by the methods 

provided for the collection of civil judgments. Id. 

Ragland, supra, ¶ 13. 

{¶62} In the instant case, the court costs were not included in a post confinement 

repayment schedule and the concerns addressed by the Second District in the cited 

cases are not applicable. 

{¶63} The sixth assignment of error is overruled. 

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

By: Hoffman, J. 

Wise, John, P.J. and 

Baldwin, J. concur