[Cite as State v. Kinsworthy, 2014-Ohio-1584.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

WARREN COUNTY 

STATE OF OHIO, : 

 Plaintiff-Appellee, : CASE NO. CA2013-06-053 

 

 : O P I N I O N

 - vs - 4/14/2014 

 : 

JOSEPH D. KINSWORTHY, : 

 Defendant-Appellant. : 

CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS 

Case No. 2012 CR 28221 

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 

 HENDRICKSON, P.J. 

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

sentence in the Warren County Court of Common Pleas for menacing by stalking and 

burglary. 

{¶ 2} On May 25, 2012, a Warren County grand jury indicted Kinsworthy on the 

following four counts: (1) domestic violence, in violation of R.C. 2919.25(A); (2) menacing by 
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stalking, in violation of R.C. 2903.211(A)(1); (3) burglary, in violation of R.C. 2911.12(A)(2); 

and (4) criminal damaging, in violation of R.C. 2906.06(A)(1). These charges arose out of a 

series of events involving Kinsworthy and Katy Wall, Kinsworthy's former girlfriend and the 

mother of his son. The events took place over a period of three months in March and May 

2012. 

{¶ 3} Kinsworthy, an Iraq veteran who suffers from Post-Traumatic Stress Disorder 

(PTSD) and has a traumatic brain injury, began his relationship with Wall in June 2009. One 

child was born out of the relationship. Kinsworthy and Wall lived together on and off again 

over the years. Kinsworthy first moved into Walls' condominium in December 2009 and 

stayed for three to four months. On March 28, 2010, Kinsworthy committed an act of 

domestic violence against Wall, and he ultimately pled guilty to that offense. After this 

incident, Kinsworthy moved out. However, in January 2011, just a few months after the birth 

of their son, Kinsworthy returned and again resided with Wall. Kinsworthy stayed for 

approximately three months until March 2011, when the relationship once again ended. After 

the relationship ended, Wall had the locks changed at her condominium. Although the 

relationship was over, the two remained in contact for their "son's sake." In November 2011, 

Kinsworthy began coming around more often and the two spoke about resuming their 

relationship. In March 2012, Kinsworthy began staying overnight with Wall and their son. 

{¶ 4} On March 24, 2012, Kinsworthy and Wall got into an argument which increased 

in intensity as the day progressed. When Kinsworthy left the condominium, he punched a 

hole in the wall and threw open the front door with such force that it also put a hole in the wall 

behind the door. On that same day, the two also exchanged text messages, and in one of 

these messages Kinsworthy threatened to kill himself. 

{¶ 5} The next day, March 25, 2012, Wall and her son went to see Kinsworthy at a 

friend's house. Wall brought Kinsworthy's belongings with her as she decided he could no 
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longer stay with them at the condominium. According to Wall, when Kinsworthy saw his 

belongings, he became extremely angry, and began yelling and cursing at her. While Wall 

attempted to leave, Kinsworthy kicked the rear, side quarter panel of her car. Their son was 

inside the car at the time and he started screaming. Ultimately, Wall was able to leave her 

friend's house and return to her condominium. Later that day, the two again exchanged text 

messages describing the events that had taken place that day. In one message, Kinsworthy 

stated: "I can promise you one thing though, NO MAN is going to be happy with you as long 

as im [sic] still breathing[.]" After receiving this message, Wall became scared and did not 

feel safe to stay at her condominium. She took her son and stayed with her parents. 

{¶ 6} Based on this incident, Wall filed an application for a civil protection order 

(CPO) against Kinsworthy. At the preliminary hearing on April 11, 2012, Kinsworthy's 

visitation rights were temporarily suspended until the day of the full hearing. On May 24, 

2012, the court held a full hearing and a CPO was issued against Kinsworthy, protecting Wall 

and her son for five years. 

{¶ 7} Wall also filed a police report with the Hamilton Township Police Department 

regarding the damage to her car that resulted from Kinsworthy kicking the side panel of the 

vehicle. Photographs were taken of the damage. 

{¶ 8} On the morning of April 12, 2012, just one day after Kinsworthy's visitation 

rights were temporarily suspended, Wall discovered that someone had smashed her car's 

windshield. Wall reported the incident to police. When interviewed by the police, Wall stated 

she believed that it was Kinsworthy who had damaged the vehicle. 

{¶ 9} Just days later, on April 20, 2012, Wall returned to her condominium around 

3:00 p.m. and discovered someone had broken into her residence. A key had been broken 

off in the door's lock, the door frame was broken, and parts of the lock were on the floor. 

Wall contacted the Hamilton Township Police Department and reported a burglary. Two 
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officers, including Officer Darcy Workmen, responded to the scene. The officers entered the 

condominium first and discovered Wall's dog was dead. Wall then entered the residence to 

inspect the damage. After surveying the damage, Wall informed the officers that three pairs 

of sunglasses were missing, the straps of a purse had been removed, the sheets, pillow, and 

clothing on her bed were wet and smelled like urine, there were small drops of blood on the 

sheet, and jewelry given to her by Kinsworthy was missing. Other expensive jewelry had not 

been taken. In addition, a photograph of her son was missing and the screen of a television 

that she and Kinsworthy purchased had been smashed. Wall indicated to the officers that 

she believed it was Kinsworthy who was the perpetrator. 

{¶ 10} Thereafter, Kinworthy was indicted on the above four charges. A jury trial was 

held in September 2012. The jury convicted Kinsworthy of criminal damaging and found him 

not guilty of domestic violence and second-degree burglary. The jury indicated it was hung 

as to the lesser-included burglary with the purpose to commit any criminal offense, a thirddegree felony, and the menacing by stalking offense. 

{¶ 11} A second jury trial was held as to these two offenses on March 1, 2013. After 

hearing the evidence, the jury found Kinsworthy guilty on both offenses. The trial court 

sentenced Kinsowrthy to serve nine months in prison for menacing by stalking, a fourthdegree felony and 18 months in prison for burglary, a third-degree felony. The two prison 

terms were ordered to be served consecutively, for a total prison term of 27 months. 

{¶ 12} Kinsworthy appeals both his convictions and sentence, raising five assignments 

of error for our review.1

 

{¶ 13} Assignment of Error No. 1: 

{¶ 14} THE TRIAL COURT ERRED AS A MATTER OF LAW BY PERMITTING 

 

1. The present appeal is limited only to the second trial and the resulting convictions for menacing by stalking 

and burglary. Kinsworthy did not appeal his conviction for criminal damaging. 
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OTHER ACTS TESTIMONY INTO EVIDENCE THUS PREJUDICING APPELLANT'S RIGHT 

TO A FAIR TRIAL. 

{¶ 15} In his first assignment of error, Kinsworthy argues he was denied a fair trial due 

to the admission of improper character evidence and improper prior bad acts evidence. 

Kinsworthy asserts the trial court erred in admitting the testimony regarding: (1) his prior 

incarceration; (2) his threats to commit suicide; (3) threats he made to kill his mother, Marcia 

Kinsworthy, and a correctional officer; (4) his behavior of breaking Wall's possessions and 

punching holes in her walls during arguments; and (5) his alcohol use and alcohol-related 

convictions. Kinsworthy contends this evidence did not prove that he had a history of 

violence towards Wall, as required for a menacing by stalking conviction. Rather, he asserts 

that such testimony was elicited as improper character evidence to show he was an "unstable 

alcoholic, with a propensity for violence." 

{¶ 16} The testimony Kinsworthy now challenges on appeal was provided by several 

witnesses, including Wall, Marcia Kinsworthy, and Kinsworthy himself.2

 No objection was 

ever raised as to any of the testimony in question. Generally, this court will not reverse a trial 

court's decision regarding the admission of evidence absent an abuse of discretion. State v. 

Freeze, 12th Dist. Butler No. CA2011-11-209, 2012-Ohio-5840, ¶ 43, citing State v. Perez, 

124 Ohio St.3d 122, 2009-Ohio-6179, ¶ 96. However, when a party fails to object to the 

issue now appealed, we review for plain error. Crim.R. 52(B); State v. Lang, 129 Ohio St.3d 

512, 2011-Ohio-4215, ¶ 108. An alleged error constitutes plain error only if the error is 

obvious and but for the error, the outcome of the trial clearly would have been different. 

State v. Blankenburg, 197 Ohio App.3d 201, 2012-Ohio-1289, ¶ 53 (12th Dist.), citing Lang at 

 

2. In fact, Kinsworthy testified to much of the disputed evidence, including his alcohol use, his prior threats to 

commit suicide, threats against his mother, his prior incarceration, and that he had broken items during 

arguments in the past. 
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¶ 108. Notice of plain error is to be taken with utmost caution and should be invoked only to 

prevent a clear miscarriage of justice. Id. A finding of harmless error, however, is 

appropriate where there is "overwhelming evidence of guilt" or "some other indicia that the 

error did not contribute to the conviction." State v. Sims, 12th Dist. Butler No. CA2007-11-

300, 2009-Ohio-550, ¶ 34, quoting State v. Ferguson, 5 Ohio St.3d 160, 166 (1983), fn. 5. 

{¶ 17} Pursuant to Evid.R. 404(B), evidence of other crimes, wrongs, or acts is not 

admissible to prove the character of a person in order to show that a person acted in 

conformity therewith on a particular occasion. Evid.R. 404(B); State v. Hart, 12th Dist. 

Warren No. CA2008-06-079, 2009-Ohio-997, ¶ 11. Such evidence, often called "other acts" 

evidence, is permitted for other purposes, however, including proof of motive, opportunity, 

intent, preparation, plan, knowledge, identity, absence of mistake or accident. Evid.R. 

404(B); Hart at ¶ 11; State v. Walker, 12th Dist. Butler No. CA2006-04-085, 2007-Ohio-911, ¶ 

11. In addition, other acts evidence may also be permissible where the other acts "form part 

of the immediate background of the alleged act which forms the foundation of the crime 

charged in the indictment." State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, ¶ 13, 

quoting State v. Curry, 43 Ohio St.2d 66, 73 (1975). "Evidence of other crimes may be 

presented when 'they are so blended or connected with the one on trial as that proof of one 

incidentally involves the other; or explains the circumstances thereof; or tends to logically 

prove any element of the crime alleged.'" State v. Waters, 12th Dist. Butler No. CA2002-11-

266, 2003-Ohio-5871, ¶ 15.

{¶ 18} Even if the evidence meets the prerequisites of Evid.R. 404(B) it may still be 

excluded under Evid.R. 403(A) if its probative value is substantially outweighed by the danger 

of unfair prejudice, confusing the issues, or misleading the jury. State v. Thomas, 12th Dist. 

Butler No. CA2012-11-223, 2013-Ohio-4327, ¶ 22. Logically, all evidence which the 

prosecutor presents is prejudicial to the defendant; it is only the evidence which unfairly 
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prejudices the defendant that is prohibited by Evid.R. 403(A). Thomas at ¶ 23. "Unfairly 

prejudicial evidence is that which might result in an improper basis for a jury decision." Id. 

{¶ 19} In prosecutions for menacing by stalking, the victim's belief that the defendant 

will cause physical harm is an element of the offense and such belief is often intertwined with 

their past interactions. Hart at ¶ 12. Accordingly, prior acts of violence between the victim 

and defendant are "relevant and highly probative in establishing the victim's belief of 

impending serious harm," and are particularly important in proving the crime of menacing by 

stalking. Id., quoting State v. Skeens, 2d Dist. Montgomery No. 17528, 1999 WL 1082658, * 

4 (Dec. 3, 1999). Furthermore, this court has noted, "[o]ther acts evidence can be 

particularly useful in prosecutions for menacing by stalking because it can assist the jury in 

understanding that a defendant's otherwise innocent appearing acts, when put into the 

context of previous contacts he has had with the victim, may be knowing attempts to cause 

mental distress." Hart at ¶ 12. 

{¶ 20} In the present case, the record indicates the state sought to prove Kinsworthy 

committed felony menacing by stalking. In order to prove menacing by stalking, the state 

was required to show that Kinsworthy, by engaging in a pattern of conduct knowingly caused 

Wall to believe that he would cause her physical harm or cause her mental distress. See 

R.C. 2903.211(A)(1). To elevate the offense to a fourth-degree felony, the state was 

required to prove there was a "history of violence" against Wall or any other person. See 

R.C. 2903.211(B)(2)(e) ("Menacing by stalking is a felony in the fourth degree if * * * the 

offender has a history of violence toward the victim or any other person or a history of violent 

acts toward the victim or any other person"). 

{¶ 21} The record indicates that Wall was aware Kinsworthy had threatened to kill a 

correctional officer and had threatened to commit suicide in the past. Accordingly, the 

testimony regarding Kinsworthy's frequent threats to commit suicide as well as his threats to 
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kill a correctional officer were relevant and probative in proving the essential elements of the 

menacing by stalking charge. In particular, this evidence was relevant in proving Wall 

believed Kinsworthy would cause her physical harm, or in the alternative, that Kinsworthy 

knew he caused Wall mental distress. 

{¶ 22} We similarly find the trial court did not err in admitting into evidence testimony 

regarding Kinsworthy's 2010 domestic violence conviction and his resulting incarceration. As 

the state was required to prove there was a "history of violence" against Wall, the fact that 

Kinsworthy committed an act of domestic violence against Wall just two years prior was 

relevant and probative in proving an essential element of the felony offense.3 

{¶ 23} We also find Wall's testimony that Kinsworthy had broken some of her 

belongings and punched holes in her wall during prior arguments relevant and probative in 

proving the menacing by stalking charge, namely Wall's belief of impending serious harm. 

This testimony also put the past interactions between Wall and Kinsworthy into context for 

the jury. See Hart at ¶ 12. Based on the foregoing, the trial court did not err, let alone 

committed plain error, in admitting evidence as to Kinsworthy's prior incarceration, threats of 

suicide, threats against a correctional officer, and prior instances where he broke items and 

bunched holes in the walls of Wall's condominium. 

{¶ 24} We also note that this character evidence and "other acts" evidence Kinsworthy 

asserts the trial court erred in admitting at trial was the same evidence and testimony that he 

himself participated in eliciting from the witnesses. For instance, during cross-examination of 

Wall, defense counsel asked: "I want to direct your attention to the 2010 domestic violence 

incident. Do you recall being present for the sentencing at Warren County Court?" Later, he 

 

3. Further, we find no error in the trial court's failure to provide the jury with a limiting instruction that the 

evidence could only be used to find a "history of violence" against Wall and not to prove that Kinsworthy acted in 

conformity with his prior bad acts. Kinsworthy did not object to the testimony and did not ask for such a limiting 

instruction. Therefore, he has waived all but plain error. Because we cannot say that, but for the claimed error, 

the outcome of the trial clearly would have been otherwise, we find no plain error. 
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also asked: "All right, [sic] so following his release from incarceration you drove him to that 

program?" In addition, defense counsel asked Wall to explain the contents of the letter in 

which Kinsworthy threatened to kill a correctional officer. Kinsworthy also confirmed during 

direct examination that he would "break things" during arguments between himself and Wall. 

Kinsworthy cannot, on appeal, complain that the trial court erred in permitting the admission 

of prejudicial testimony which he elicited from the witnesses. See State v. Williams, 12th 

Dist. Butler No. CA2006-03-067, 2007-Ohio-2699, ¶ 27. 

{¶ 25} The remaining evidence Kinsworthy challenges as being improper character 

evidence, including evidence regarding Kinsworthy's prior threats to kill his mother, his 

alcohol use, and related alcohol convictions, present a different issue as arguably none of 

this evidence was relevant in proving either of the two offenses at the second trial. As to 

Kinsworthy's alcohol use, there is no indication in the record that Kinsworthy was intoxicated 

at the time of any of the events which gave rise to these charges. See Morris at ¶ 13. 

Although Wall and Marcia each testified he was more violent and unstable when he was 

under the influence of alcohol, because there was no testimony that he was intoxicated at the 

time of the offenses, evidence of Kinsworthy's alcohol use was not relevant in proving any of 

the offenses. Similarly, any prior alcohol-related convictions would also not be relevant. In 

addition, the fact that Kinsworthy previously threatened his mother was not relevant in 

proving menacing by stalking as there is no indication that the victim, Wall, was aware of this 

threat, and therefore it could not have contributed to Wall's belief that Kinsworthy would 

cause her physical harm. 

{¶ 26} Although the foregoing evidence had questionable relevancy to the case at bar, 

a review of the record indicates Kinsworthy did not object this evidence when first introduced 

by the state. Moreover, Kinsworthy repeatedly participated in eliciting this same evidence. 

For example, after the state questioned Marcia regarding Kinsworthy's prior threats to kill her, 
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Kinsworthy on re-direct examination, questioned her further regarding these threats: 

Q. Did you actually believe that [Kinsworthy] was going to kill 

you? 

 A. Heavens no. 

Q. And has Joe ever raised his hand to you or struck you or 

hit you? 

 A. Never. 

Q. Whether [sic] he made these statements to you about 

killing you when were those relative to when he returned 

home from Iraq? 

A. It started probably after he came out of his coma and 

came home * * *[his sergeants told me] that's how they 

pump them up. They teach them that. 

{¶ 27} On direct examination, Kinsworthy also repeatedly referred to his struggles with 

alcohol. For instance, counsel asked: "Since your return from active duty have you struggled 

with alcohol?" Kinsworthy explained: 

Yes, that's part of my disability. When I came home * * *, I had 

gone so untreated that I was medicating myself with alcohol and 

the diagnosis that the VA in the military gave me was 

posttraumatic stress disorder with alcohol dependence because * 

* * that was my medication. I'd use that to kind of get away. 

Additionally, the record indicates that Kinsworthy offered the evidence of his alcohol-related 

convictions. During direct examination, Kinsworthy referred to a prior driving under the 

influence conviction that had not been previously mentioned by the state's witnesses. 

{¶ 28} From this court's review of the record, it appears Kinsworthy's defense centered 

on his PTSD diagnosis and his resulting alcohol dependence. Kinsworthy sought to paint a 

picture that he often threatened those around him with violence, but that they knew these 

threats were empty and were just a result of his alcohol use and PTSD. In so doing, he put 

his character squarely at issue and repeatedly elicited testimony regarding his problems with 

alcohol and his prior threats of violence towards other people. It is apparent that presenting 
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this evidence was used to bolster his defense. Accordingly, we fail to see any prejudice that 

he suffered in procuring such testimony. As Kinsworthy provided much of this testimony and 

also participated in eliciting the same evidence from other witnesses, any error in the 

admission of this evidence was invited error, and he may not now take advantage of such 

error on appeal. See Williams, 2007-Ohio-2699 at ¶ 27 ("The rule of invited error prohibits a 

party who induces error in the trial court from taking advantage of such error on appeal"). 

{¶ 29} Even if this court assumed the trial court erred in admitting evidence of 

Kinsworthy's alcohol use, related alcohol convictions, and his threats to kill his mother, such 

error would be harmless. In light of the overwhelming amount of other evidence supporting 

his conviction for menacing by stalking, the outcome of the trial would not have been different 

absent this evidence. As discussed more fully below, Wall testified regarding the couple's 

tumultuous and often violent history towards one another. In March 2012, Kinsworthy's 

pattern of conduct, which included threats via text messages indicating Kinsworthy would kill 

Wall and destroy many of her personal belongings, along with his later conduct of damaging 

her vehicle, all culminated in Wall believing Kinsworthy would harm her. Furthermore, based 

on the history of their relationship, Kinsworthy was aware that his actions would cause her 

such fear or mental distress. 

{¶ 30} For the reasons discussed above, Kinsworthy's first assignment of error is 

overruled. 

{¶ 31} Assignment of Error No. 2: 

{¶ 32} THE TRIAL COURT ERRED BY ALLOWING IMPROPER REBUTTAL 

TESTIMONY WHICH VIOLATED [KINSWORTHY'S] RIGHT TO A FAIR TRIAL. 

{¶ 33} In his second assignment of error, Kinsworthy asserts the trial court erred in 

allowing Officer Downs to testify as a rebuttal witness for the state. Kinsworthy maintains 

Downs' testimony was inadmissible as his testimony constituted hearsay under Evid.R. 801, 
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and furthermore, the testimony violated Evid.R. 404(B) as impermissible character evidence. 

{¶ 34} At trial, Kinsworthy called Marcia Kinsworthy, to the stand. During her 

testimony, Marcia testified she had been contacted by the police "a couple of times" in 

regards to her son. On cross-examination, the state engaged in a series of questions 

regarding statements Marcia made about her son to police in May 2012. The state asked 

whether she had told officers that Kinsworthy "had changed tremendously since returning 

home [from deployment] and that his temper was so short he was unable to carry on a 

normal life." Marcia denied making that specific statement, but testified she told the officers 

she wanted Kinsworthy to get help and live a normal life. The state also asked Marcia 

whether she had told officers that Kinsworthy was "unpredictable and very capable of causing 

great harm to others." Marcia denied making that statement. 

{¶ 35} On rebuttal, the state attempted to refute Marcia's testimony by presenting the 

testimony of Officer Downs, who had been present during this conversation. Downs testified 

Marcia stated Kinsworthy's "temper was so short he's unable to carry on a normal life." He 

further testified that Marcia indicated that she was worried Kinsworthy "may harm somebody 

else as well or possibly kill them." 

{¶ 36} As an initial matter, we note that Kinsworthy failed to object to Officer Downs' 

rebuttal testimony. Thus, he has waived all but plain error. See State v. Gray, 12th Dist. 

Butler No. CA2010-03-064, 2011-Ohio-666, ¶ 56; Lang, 2011-Ohio-4215 at ¶ 108. 

{¶ 37} Even if this court assumed Downs' testimony was inadmissible under Evid.R. 

801 and Evid.R. 404(B), we find that any error in admitting such evidence does not rise to the 

level of plain error. The substance of Downs' testimony, i.e. that Kinsworthy had a short 

temper and had been unable to resume his normal life upon returning from Iraq, had already 

been presented to the jury. Kinsworthy himself provided similar testimony. During direct 

examination, Kinsworthy testified that upon returning from Iraq he suffered from PTSD which 
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led to his dependence on alcohol. He further stated that he had shared his PTSD and 

alcohol dependence diagnosis with Wall as they often talked about how he could "get this 

under control and live a normal life." He also admitted he had an "anger" issue. The only 

new matter that was potentially damaging to Kinsworthy was Downs' testimony that 

Kinsworthy's mother had concerns that he may harm other people. However, the admission 

of such evidence was not prejudicial given the overwhelming evidence adduced at trial which 

supported his convictions for menacing by stalking and burglary. Accordingly, we cannot say 

Downs' testimony contributed to his convictions. 

{¶ 38} Kinsworthy's second assignment of error is, therefore, overruled. 

{¶ 39} Assignment of Error No. 3: 

{¶ 40} APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN 

VIOLATION OF [HIS] CONSTITUTIONAL RIGHTS THUS PREJUDICING [HIS] RIGHT TO A 

FAIR TRIAL. 

{¶ 41} In his third assignment of error, Kinsworthy asserts he received ineffective 

assistance of trial counsel. Kinsworthy asserts his trial counsel committed an array of errors 

which "significantly prejudiced" him. Specifically, Kinsworthy claims counsel was ineffective 

in the following ways: (1) counsel failed to mention he had an alibi during opening 

statements; (2) in his opening statements, counsel stated, Kinsworthy "appeared guilty"; (3) 

counsel failed to object to certain testimony, including "other acts" evidence, rebuttal 

testimony of Officer Downs, Wall's testimony comparing Kinsworthy to a serial killer, and 

Officer Workmen and Wall's belief that he was the perpetrator of the burglary; and (4) 

counsel asked Wall and Kinsworthy "damaging" questions. Kinsworthy asserts the following 

questions were "damaging": (1) asking Kinsworthy whether he threatened to kill Wall; (2) 

asking Wall about the letter Kinsworthy wrote in which he threatened a correctional officer; 

(3) confirming there was no footprint on Wall's car door when she left her home the day of 
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the burglary; (4) confirming Kinsworthy threatened to damage Wall's personal property; and 

(5) confirming Kinsworthy tended to urinate on things when he was intoxicated. Kinsworthy 

contends that the culmination of all of these errors by trial counsel significantly prejudiced 

him. 

{¶ 42} To prevail on an ineffective assistance of counsel claim, Kinsworthy must show 

trial counsel's performance fell below an objective standard of reasonableness and he was 

prejudiced as a result. State v. Ward-Douglas, 12th Dist. Warren No. CA2011-05-042, 2012-

Ohio-4023, ¶ 96, citing Strickland v. Washington, 466 U.S. 668, 687-688, 693, 104 S.Ct. 

2052 (1984); State v. Burke, 97 Ohio St.3d 55, 2002-Ohio-5310, ¶ 6. In order to demonstrate 

prejudice, Kinsworthy must establish that, but for counsel's errors, there is a reasonable 

probability that the result of trial would have been different; a "reasonable probability" is a 

probability sufficient to undermine confidence in the outcome. Burke at ¶ 6. The failure to 

make an adequate showing on either prong is fatal to an ineffective assistance of counsel 

claim. State v. Zielinski, 12th Dist. Warren No. CA2010-12-121, 2011-Ohio-6535, ¶ 50. 

{¶ 43} Counsel is strongly presumed to have rendered adequate assistance and made 

all significant decisions in the exercise of reasonable professional judgment. State v. 

Hendrix, 12th Dist. Butler No. CA2012-05-109, 2012-Ohio-5610, ¶ 14. It is not the role of the 

appellate court to second guess the strategic decisions of trial counsel. State v. Lloyd, 12th 

Dist. Warren Nos. CA2007-04-052, CA2007-04-053, 2008-Ohio-3383, ¶ 61. The decision 

regarding which defense to pursue at trial is a matter of trial strategy, and trial strategy 

decisions are not the basis of a finding of ineffective assistance of counsel. State v. Murphy, 

91 Ohio St.3d 516, 524 (2001); State v. Murphy, 12th Dist. Butler No. CA2009-05-128, 2009-

Ohio-6745, ¶ 24. "[T]he scope of cross-examination falls within the ambit of trial strategy, 

and debatable trial tactics do not establish ineffective assistance of counsel." Murphy, 2009-

Ohio-6745 at ¶ 32, quoting State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶ 101. 
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{¶ 44} From our review of the record, many of the actions Kinsworthy now challenges 

as deficient performance by trial counsel related to counsel's trial strategy and the defense 

presented in this case. In particular, each of the alleged errors with regard to the "damaging" 

questions counsel asked Kinsworthy and those asked during the cross-examination of Wall 

fall under the ambit of trial strategy and do not establish ineffective assistance of counsel. 

See Murphy, 2009-Ohio-6745 at ¶ 32. 

{¶ 45} The trial transcript indicates part of Kinsworthy's defense was that Wall 

fabricated the crimes to get him "in trouble." Accordingly, as stated during opening 

statements, even though it "appeared" Kinsworthy was the perpetrator, counsel asserted he 

did not commit these criminal acts. As part of this strategy, defense counsel intentionally 

presented evidence regarding Kinsworthy and Wall's volatile relationship. It was the 

defense's intent to paint Wall as a vindictive and vengeful person such that she had a motive 

to make it appear as though Kinsworthy damaged her vehicle on two occasions and later 

broke into her home. Simply because the jury chose to reject this version of the events 

cannot be the basis for an ineffective assistance of counsel claim. State v. Davis, 12th Dist. 

Butler No. CA2012-12-258, 2013-Ohio-3878, ¶ 25 ("The fact that trial strategy was ultimately 

unsuccessful * * * does not amount to ineffective assistance of counsel"). Moreover, as 

stated above, the decision regarding which defense to pursue at trial is a matter of trial 

strategy, and trial strategy decisions are not the basis of a finding of ineffective assistance of 

counsel. Murphy, 91 Ohio St.3d at 524. 

{¶ 46} As to trial counsel's failure to mention Kinsworthy's alibi during opening 

statements, there is nothing in the record which suggests that Kinsworthy suffered any 

prejudice as a result of the opening statement made by counsel. It is well-settled that 

opening statements are not evidence. See State v. Frazier, 73 Ohio St.3d 323, 338 (1995). 

In addition, it is clear from the record that trial counsel did present alibi evidence through the 
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testimony of both Marcia Kinsworthy and Robert Evans and referenced Kinsworthy's alibi 

during closing arguments. Accordingly, counsel's failure to mention the alibi during opening 

statements is not enough to rise to the level of ineffective assistance of counsel. 

{¶ 47} Based on our resolution of the first and second assignments of error, we also 

do not find that counsel's failure to object to the admission of "other acts" evidence or to the 

admission of Officer Down's rebuttal testimony amounted to ineffective assistance of 

counsel. As to the remaining instances of alleged ineffective assistance of counsel, 

Kinsworthy has failed to offer any argument as to how he was prejudiced by the alleged 

errors of counsel. He fails to show how he was prejudiced by Wall's testimony comparing 

him to a serial killer or Officer Workmen's belief that he was the perpetrator of the burglary. 

In addition, the alleged errors by counsel, even when viewed cumulatively, do not show that 

there is a reasonable probability that, but for these alleged errors, the result of trial would 

have been different. Accordingly, Kinsworthy has failed to make an adequate showing of 

prejudice. 

{¶ 48} Kinsworthy's third assignment of error is therefore overruled. 

{¶ 49} Assignment of Error No. 4: 

{¶ 50} THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW AND/OR 

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE TO SUSTAIN APPELLANT'S 

CONVICTIONS. 

{¶ 51} In his fourth assignment of error, Kinsworthy asserts that his convictions for 

menacing by stalking and burglary were not supported by sufficient evidence and were also 

against the manifest weight of the evidence. 

{¶ 52} Whether the evidence presented at trial is legally sufficient to sustain a verdict 

is a question of law. State v. Hoskins, 12th Dist. Warren No. CA2013-02-013, 2013-Ohio3580, ¶ 16, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). When reviewing the 
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sufficiency of the evidence underlying a criminal conviction, an appellate court examines the 

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

average mind of the defendant's guilt beyond a reasonable doubt. Hoskins at ¶ 16. 

Therefore, "[t]he 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. Smith, 12th Dist. Warren Nos. 

CA2012-02-017 and CA2012-02-018, 2012-Ohio-4644, ¶ 25, quoting State v. Jenks, 61 Ohio 

St.3d 259 (1991), paragraph two of the syllabus. 

{¶ 53} On the other hand, a manifest weight of the evidence challenge examines the 

"inclination of the greater amount of credible evidence, offered at a trial, to support one side 

of the issue rather than the other." State v. Williams, 12th Dist. Warren No. CA2012-08-080, 

2013-Ohio-3410, ¶ 30. To determine whether a conviction is against the manifest weight of 

the evidence, the reviewing court must look at the entire record, weigh the evidence and all 

reasonable inferences, consider the credibility of the witnesses, and determine whether in 

resolving the 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. 

Id. In weighing the evidence, circumstantial evidence and direct evidence inherently possess 

the same probative value and are subjected to the same standard of proof. State v. 

Williams, 12th Dist. Butler Nos. CA91-04-060 and CA92-06-110, 1992 WL 317025, * 6 (Nov. 

2, 1992), citing Jenks at paragraph one of the syllabus. A conviction based purely on 

circumstantial evidence is no less sound than a conviction based upon direct evidence. 

Williams at * 6. "While appellate review includes the responsibility to consider the credibility 

of witnesses and weight given to the evidence, 'these issues are primarily matters for the trier 

of fact to decide[.]'" State v. Barnes, 12th Dist. Brown No. CA2010-06-009, 2011-Ohio-5226, 

¶ 81, quoting State v. Walker, 12th Dist. Butler No. CA2006-04-085, 2007-Ohio-911, ¶ 26. 
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An appellate court, therefore, will overturn a conviction due to the manifest weight of the 

evidence only in extraordinary circumstances when the evidence presented at trial weighs 

heavily in favor of acquittal. Williams at ¶ 30. 

{¶ 54} "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." Smith, 2012-Ohio-4644 at ¶ 34. Accordingly, a determination that a conviction 

is supported by the weight of the evidence will also be dispositive of the issue of sufficiency. 

Id. 

Menacing by Stalking

{¶ 55} Kinsworthy was convicted of menacing by stalking in violation of R.C. 

2903.211(A)(1) which provides: "No person by engaging in a pattern of conduct shall 

knowingly cause another person to believe that the offender will cause physical harm to the 

other person or cause mental distress to the other person." R.C. 2903.211(A)(1). "Mental 

distress" is defined, in part, by R.C. 2903.211(D)(2) as: "Any mental illness or condition that 

involves some temporary substantial incapacity." R.C. 2903.211(D)(2)(a). Kinsworthy 

challenges whether the state proved "harm" to Wall or that he caused her "mental distress." 

Kinsworthy also contends the state failed to prove beyond a reasonable doubt that he 

engaged in a "pattern of conduct." He argues the incidents the state relied upon in proving 

this element of the offense, namely the damage to Wall's car and the burglary, were 

insufficient because the state did not prove he was the person who committed these acts as 

no "independent evidence" was presented. 

{¶ 56} In a prosecution for menacing by stalking, this court has previously held the 

"state need only show that a defendant knowingly caused the victim to believe that he would 

cause her mental distress or physical harm." (Emphasis sic.) State v. Bradford, 12th Dist. 

Warren No. CA2010-04-032, 2010-Ohio-6429, ¶ 23; State v. Hart, 12th Dist. Warren No. 
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CA2008-06-079, 2009-Ohio-997, ¶ 31. Therefore, "neither actual physical harm nor actual 

mental distress is required." Id. 

{¶ 57} Upon a review of the record, the state provided substantial evidence which 

indicated not only did Kinsworthy knowingly cause Wall to believe that he would cause her 

mental distress or physical harm, but that he in fact caused her mental distress. In addition, 

the state presented significant circumstantial evidence to prove Kinsworthy engaged in a 

"pattern of conduct" including damaging Wall's vehicle on two occasions and burglarizing her 

home on April 20, 2012. 

{¶ 58} The state presented evidence which showed that Kinsworthy and Wall had a 

tumultuous relationship and often argued with one another. Both testified that objects were 

often thrown and broken during these arguments. On March 24, 2012, the two were involved 

in a particularly intense argument that lasted much of the day. Wall testified that when 

Kinsworthy left her condominium, he punched a hole in the wall and opened the door with 

such force that it put a hole in the wall behind the door. The state also presented the text 

messages between Wall and Kinsworthy from that day. At one point, Kinsworthy threatened 

to break several of Wall's belongings, including her video game system, television, and iPad. 

The messages also indicated that Kinsworthy threatened to kill Wall and he also threatened 

to kill himself. On March 25, 2012, the two met at a friend's house. When Kinsworthy saw 

his belongings in the back of her car he "got really mad," and "he started cussing at [Wall]." 

Wall observed Kinsworthy kicking the "side quarter panel" of her car. At this time, their son 

was in the back seat screaming. Wall testified that it was after this event that she became 

scared of him. 

{¶ 59} Wall testified that although she often did not take Kinsworthy's threats that he 

would kill her seriously, after the events of March 25, 2012, she became scared of him. Wall 

further testified that after seeing Kinsworthy kick her car while their son was inside, "I was 
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scared to death. I was afraid he was going to hurt me." The state also presented text 

messages between Kinsworthy and Wall from that day. In one of these messages, 

Kinsworthy stated: "I can promise you one thing though, NO MAN is going to be happy with 

you as long as im [sic] still breathing[.]" During this exchange, Wall specifically told 

Kinsworthy, "[I] am scared of you now." 

{¶ 60} Wall further testified that the day after Kinsworthy's visitation rights with his son 

were temporarily suspended, following the issuance of a temporary civil protection order, she 

discovered the windshield of her vehicle shattered. Wall contacted the police and indicated 

she believed Kinsworthy broke the windshield. Although there was no direct testimony 

presented regarding the damage to the windshield, given the timing of the vandalism and that 

only Wall's vehicle was damaged, there was certainly circumstantial evidence which 

permitted the jury to conclude that Kinsworthy was the person who broke the windshield. 

There was also testimony regarding the burglary of Walls' home that occurred on April 20, 

2012. Wall again testified that based on previous threats by Kinsworthy, she believed he 

was the perpetrator. Officer Workmen also testified that she believed, based upon the items 

damaged and the items that were stolen, that the "burglary seemed very personal." 

{¶ 61} Based on the foregoing, the jury did not clearly lose its way and create a 

manifest miscarriage of justice requiring a reversal of Kinsworthy's conviction for menacing 

by stalking. Accordingly, we find Kinsworthy's menacing by stalking conviction is not against 

the manifest weight of the evidence. 

Burglary

{¶ 62} Kinsworthy was also convicted of burglary in violation of R.C. 2911.12(A)(3), 

which states: "No person, by force, stealth, or deception, shall * * * [t]respass in an occupied 

structure or in a separately secured or separately occupied portion of an occupied structure, 

with purpose to commit in the structure or separately secured or separately occupied portion 
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of the structure any criminal offense." Kinsworthy asserts the state failed to prove this 

offense because he presented an alibi, and furthermore that "there was no physical evidence 

linking him to the burglary." 

{¶ 63} Once again, contrary to Kinsworthy's arguments, the state is not required to 

present direct evidence which links him to the crime. See Williams, 1992 WL 317025 at * 6. 

However, Kinsworthy is correct that the physical evidence presented by the state was 

inconclusive at best. Although Amy Dalliard, a forensic scientist with the Miami Valley 

Regional Crime Lab, testified that Kinsworthy's DNA evidence was found on Wall's bed 

sheets, given the fact that Kinsworthy often stayed at the condominium, this evidence was of 

little value.4

 However, the state presented significant circumstantial evidence to support his 

conviction. 

{¶ 64} Specifically, the state presented testimony that on April 20, 2012, when Wall 

returned to her condominium, she noticed her door frame had been damaged, there was 

broken wood and parts of the door lock on the floor in her entryway, and the door was ajar. 

The jury heard testimony that Kinsworthy had significant experience in breaking down doors 

due to his experience in the army. The jury also heard testimony from Wall and Kinsworthy 

that he previously threatened to kill her dog and also threatened to break her video game 

system, televisions, and iPad. When the police arrived at the scene, they found Wall's dog, 

dead in the laundry room. A veterinarian that treated the dog during its life testified he 

believed the dog did not die of natural causes, but rather that the dog was suffocated. During 

the burglary, the television in Wall's bedroom, which the couple purchased together, was 

broken. Yet, the television in her family room was left untouched. In addition, only jewelry 

which Kinsworthy had given Wall was taken during the burglary. Other, more expensive 

 

4. We note the record is inconsistent with regards to the spelling of Ms. Dalliard's name. At times it is spelled 

Dalliard, and others, it is spelled Dalliare. For ease of discussion, we will refer to her as Dalliard. 
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jewelry was left undisturbed. 

{¶ 65} Officer Workmen explained the damage to the condominium was not typical for 

a burglary where the goal is to "steal." One of the items taken during the burglary was a 

framed picture of the couple's newborn son. In addition, "the entire condo wasn't ransacked. 

Most of the time if there was a TV you'd find the TV missing instead of damaged." 

{¶ 66} Finally, Kinsworthy asserts the testimony regarding his alibi is sufficient to show 

his conviction for burglary is against the weight of the evidence. During trial, Kinsworthy 

presented the testimony of his friend Robert Evans. Both Evans and Kinsworthy testified that 

Kinsworthy was in North Carolina visiting Evans on the weekend of April 20, 2012. Both men 

also testified that the drive to North Carolina is approximately ten hours and that Kinsworthy 

arrived at approximately 10:00 p.m. on April 20, 2012. Kinsworthy testified that he left his 

home in Ohio at approximately 12:00 p.m. As to Kinsworthy's whereabouts the morning of 

April 20, 2012, a transaction log from Kinsworthy's debit card was entered into evidence. 

The transaction log indicated that from 8:26 a.m. to 8:43 a.m., Kinsworthy stopped at a 

RedBox, Kroger, and McDonalds. The next entry was at 11:59 a.m. when Kinsworthy 

stopped at a local bank. 

{¶ 67} Although the jury could have found Evans' and Kinsworthy's testimony about 

Kinsworthy's whereabouts on April 20, 2012 credible, the jury was not required to do so. See 

State v. Widmer, 12th Dist. Warren No. CA2011-03-027, 2012-Ohio-4342, ¶ 107 (finding jury 

was permitted to reject those portions of testimony that it did not find credible). From the 

time he purportedly returned home after 8:43 a.m. until he went to his bank at 11:59 a.m. on 

April 20, 2012, Kinsworthy was unable to "account for where [he] was at all times." Although 

he testified he was at home preparing for his trip to North Carolina, there was no evidence 

presented which corroborated this testimony. Wall testified that she left home at 

approximately 7:00 a.m. that morning and did not return until sometime after 3:00 p.m. 
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Accordingly, even accepting Kinsworthy and Evans' testimony, the jury could have found 

Kinsworthy had enough time from 8:43 a.m. and 11:59 a.m. to commit the burglary. 

{¶ 68} Based on the record, the jury did not clearly lose its way and create a manifest 

miscarriage of justice requiring a reversal of Kinsworthy's conviction for burglary. 

Accordingly, we find Kinsworthy's conviction is not against the manifest weight of the 

evidence. 

{¶ 69} As Kinsworthy's convictions for menacing by stalking and burglary were not 

against the manifest weight of the evidence, we necessarily conclude that his convictions 

were also supported by sufficient evidence. See Smith, 2012-Ohio-4644 at ¶ 34. 

Accordingly, Kinsworthy's fourth assignment of error is overruled. 

{¶ 70} Assignment of Error No. 5: 

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

SENTENCING APPELLANT. 

{¶ 72} Kinsworthy asserts in his fifth assignment of error that the trial court committed 

several errors in imposing his sentence. He contends the trial court should have merged his 

convictions for burglary and menacing by stalking as they are allied offenses of similar 

import. In addition, Kinsworthy argues the trial court failed to comply with several statutory 

provisions in imposing an aggregate sentence of 27 months. 

Allied Offenses of Similar Import

{¶ 73} Kinsworthy argues his convictions for menacing by stalking and burglary should 

have merged at sentencing because the state "relied upon [a]ppellant's 'violent' behavior 

towards Ms. Wall, including the burglary, in convicting him of the [m]enacing count." 

{¶ 74} An appellate court applies a de novo standard of review in reviewing a trial 

court's R.C. 2941.25 merger determination. State v. Tannreuther, 12th Dist. Butler No. 

CA2013-04-062, 2014-Ohio-74, ¶ 12, citing State v. Williams, 134 Ohio St.3d 482, 2012-
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Ohio-5699, ¶ 28. "The defendant bears the burden of establishing his entitlement to the 

protection provided by R.C. 2941.25 against multiple punishments for a single criminal act." 

Tannreuther at ¶ 12.

{¶ 75} The Ohio Supreme Court has set forth a test to determine whether offenses are 

allied offenses of similar import under R.C. 2941.25.5 State v. Johnson, 128 Ohio St.3d 153, 

2010-Ohio-6314. Pursuant to the Johnson test, the court must first determine "whether it is 

possible to commit one offense and commit the other with the same conduct." (Emphasis 

sic.) State v. Lane, 12th Dist. Butler No. CA2013-05-074, 2014-Ohio-562, ¶ 10, citing 

Johnson at ¶ 48. It is not necessary that the commission of one offense will always result in 

the commission of the other. Id. Rather, the question is simply whether it is possible for both 

offenses to be committed by the same conduct. Id. "If the offenses correspond to such a 

degree that the conduct of the defendant constituting one offense constitutes the commission 

of the other, then the offenses are of similar import." State v. Snyder, 12th Dist. Butler No. 

CA2011-02-018, 2011-Ohio-6346, ¶ 15, quoting Johnson at ¶ 48. 

{¶ 76} If it is possible to commit both offenses with the same conduct, the court must 

next determine whether the offenses were in fact committed by the same conduct, that is, by 

a single act, performed with a single state of mind. Lane at ¶ 11, citing Johnson at ¶ 49. If 

so, the offenses are allied offenses of similar import and must be merged. Lane at ¶ 11, 

 

5. {¶ a} R.C. 2941.25 provides: 

{¶ b} (A) Where the same conduct by defendant can be construed to 

constitute two or more allied offenses of similar import, the indictment 

or information may contain counts for all such offenses, but the 

defendant may be convicted of only one. 

{¶ c} (B) Where the defendant's conduct constitutes two or more offenses of 

dissimilar import, or where his conduct results in two or more offenses 

of the same or similar kind committed separately or with a separate 

animus as to each, the indictment or information may contain counts 

for all such offenses, and the defendant may be convicted of all of 

them. 
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citing Johnson at ¶ 50. On the other hand, if the offenses are committed separately or with a 

separate animus, the offenses will not merge. Lane at ¶ 11, citing Johnson at ¶ 51.

{¶ 77} In the present case, Kinsworthy was convicted of menacing by stalking which 

states: "No person by engaging in a pattern of conduct shall knowingly cause another person 

to believe that the offender will cause physical harm to the other person or cause mental 

distress to the other person." R.C. 2903.211(A)(1). He was also convicted of burglary which 

provides in pertinent part: "No person by force, stealth, or deception, shall * * * [t]respass in 

an occupied structure * * *with purpose to commit in the structure * * * any criminal offense." 

R.C. 2911.12(A)(3). 

{¶ 78} Applying Johnson to the facts of this case, we find Kinsworthy's menacing by 

stalking and burglary convictions are not allied offenses of similar import because, by the 

very nature of these two offenses, it is not possible to commit both offenses with the same 

conduct. As menacing by stalking requires a pattern of conduct and burglary only requires 

that the offender trespass an occupied structure with the purpose to commit a criminal 

offense, a burglary alone could not be the basis for a menacing by stalking conviction. 

Rather, the offender must have committed a series of actions which caused another person 

to believe that the offender will cause physical harm to the other person or cause mental 

distress to the other person. The offenses of burglary and menacing by stalking simply do 

not correspond to such a degree that Kinsworthy's conduct constitutes the commission of 

both offenses. Johnson at ¶ 48. 

{¶ 79} Kinsworthy committed burglary when he forced his way into Wall's residence by 

breaking down the door with the intent to commit any criminal offense once inside. 

Therefore, once he crossed the threshold and was inside the residence, the burglary was 

complete. The menacing by stalking offense, however, required a pattern of conduct. One 

act, such as breaking into Wall's home, would have been insufficient to establish menacing 
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by stalking. Although Kinsworthy is correct that the state provided testimony regarding the 

burglary to further establish Kinsworthy's pattern of conduct, this is not to say that the state 

relied upon the same conduct to prove both the burglary and menacing by stalking offenses. 

Rather, the state presented numerous other instances of Kinsworthy's conduct during March 

and April 2012 to establish a "pattern of conduct," including Kinsworthy's prior threatening 

text messages, his threats to kill Wall, and his acts of punching holes in her walls, breaking 

various personal items, kicking her car, and breaking the windshield of her car. 

{¶ 80} As menacing by stalking and burglary are not allied offenses of similar import, 

we find the trial court did not err by not merging the two convictions at sentencing. 

Imposition of an Aggregate 27-Month Prison Term

{¶ 81} Kinsworthy asserts the trial court abused its discretion when it imposed his 

sentence without considering the purposes and principles of sentencing. Furthermore, he 

argues the trial court erred in imposing consecutive sentences as it did not make the requisite 

findings under R.C. 2929.14(C)(4). Finally, Kinsworthy asserts the trial court's imposition of a 

prison sentence for menacing by stalking, a fourth-degree felony violated R.C. 

2929.13(B)(1)(b)(i)-(iv). 

{¶ 82} As an initial matter, this court once again notes that "the standard of review set 

forth in R.C. 2953.08(G)(2) shall govern all felony sentences." State v. Crawford, 12th Dist. 

Clermont No. CA2012-12-088, 2013-Ohio-3315, ¶ 6. Pursuant to R.C. 2953.08(G)(2), when 

hearing an appeal of a trial court's felony sentencing decision, such as the case here, "[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). However, as explicitly stated in R.C. 2953.08(G)(2), 

"[t]he appellate court's standard of review is not whether the sentencing court abused its 

discretion." 
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{¶ 83} Instead, an appellate court may take any action authorized by R.C. 

2953.08(G)(2) only if the court "clearly and convincingly finds" that either (1) "the record does 

not support the sentencing court's findings under division (B) or (D) of section 2929.13 

division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised 

Code, whichever, if any, is relevant;" or (2) "[t]hat the sentence is otherwise contrary to law." 

In making such a determination, it is "important to understand that the clear and convincing 

standard used by R.C. 2953.08(G)(2) is written in the negative." Crawford at ¶ 8, quoting 

State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891, ¶ 21. "It does not say that 

the trial court judge must have clear and convincing evidence to support its findings." Quite 

the contrary, "it is the court of appeals that must clearly and convincingly find that the record 

does not support the trial court's findings." Id. Simply stated, the language in R.C. 

2953.08(G)(2) establishes an "extremely deferential standard of review" as the restriction is 

on the appellate court, rather than the trial court. Id. 

{¶ 84} A sentence is not clearly and convincingly contrary to law where the trial court 

considers the purposes and principles of R.C. 2929.11, as well as the factors listed in R.C. 

2929.12, properly applies postrelease control, and sentences the accused within the 

permissible statutory range. State v. Lane, 12th Dist. Butler No. CA2013-05-074, 2014-Ohio562, ¶ 22, citing Crawford at ¶ 9. 

{¶ 85} With these principles in mind, we first note the trial court properly complied with 

R.C. 2929.13(B) in imposing a prison term for Kinsworthy's menacing by stalking conviction. 

R.C. 2929.13(B)(1)(a) provides, in certain conditions, a presumption of community control for 

some fourth-degree felonies. R.C. 2929.13(B)(1)(a). However, where R.C. 2929.13(B)(1)(b) 

applies, the trial court is permitted to impose a prison sentence. R.C. 2929.13(B)(1)(b); see 

also State v. Glowka, 12th Dist. Butler No. CA2012-10-203, 2013-Ohio-3080, ¶ 18. Since 

Kinsworthy had previously served a prison term, the presumption did not apply and it was 
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within the trial court's discretion to impose a prison sentence. R.C. 2929.13(B)(1)(b)(x). 

{¶ 86} Kinsworthy next argues that the trial court erred in imposing consecutive 

sentences. A sentence is contrary to law where the trial court fails to make the consecutive 

sentencing findings as required by R.C. 2929.14(C)(4). State v. Marshall, 12th Dist. Warren 

No. CA2013-05-042, 2013-Ohio-5092, ¶ 8. 

{¶ 87} Pursuant to R.C. 2929.14(C), in order to impose a consecutive sentence, the 

trial court must engage in a three-step analysis and make certain findings before imposing 

consecutive sentences. Lane, 2014-Ohio-562 at ¶ 24, citing State v. Dillon, 12th Dist. 

Madison No. CA2012-06-012, 2013-Ohio-335, ¶ 9. First, the trial court must find that the 

consecutive sentence is necessary to protect the public from future crime or to punish the 

offender. Lane at ¶ 24. Second, the trial court must find that consecutive sentences are not 

disproportionate to the seriousness of the offender's conduct and to the danger the offender 

poses to the public. Id. Third, the trial court must find that one of the following applies:

(a) The offender committed one or more of the multiple offenses 

while the offender was awaiting trial or sentencing, was under a 

sanction imposed pursuant to section 2929.16, 2929.17, or 

2929.18 of the Revised Code, or was under post-release control 

for a prior offense. 

(b) At least two of the multiple offenses were committed as part 

of one or more courses of conduct, and the harm caused by two 

or more of the multiple offenses so committed was so great or 

unusual that no single prison term for any of the offenses 

committed as part of any of the courses of conduct adequately 

reflects the seriousness of the offender's conduct. 

(c) The offender's history of criminal conduct demonstrates that 

consecutive sentences are necessary to protect the public from 

future crime by the offender. 

R.C. 2929.14(C)(4). 

{¶ 88} The trial court is not required to give reasons explaining these findings, nor is 

the court required to recite any "magic" or talismanic" words when imposing consecutive 
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sentences. State v. Williams, 12th Dist. Warren No. CA2012-08-080, 2013-Ohio-3410, ¶ 45. 

However, it must be clear from the record that the trial court actually made the required 

statutory findings. Id. 

{¶ 89} Prior to sentencing Kinsworthy to consecutive sentences, the trial court noted 

that it had reviewed a presentence report, and numerous letters from Kinsworthy's family, as 

well as a victim impact statement from Wall. The trial court took notice of Kinsworthy's 

military experience and the fact that such experience may have exacerbated his problems 

with controlling his anger and alcohol, but explained to Kinsworthy that he still must be 

responsible for his actions. In addition, the trial court discussed the seriousness of 

Kinsworthy's conduct, stating: "You terrorized a young woman without any justification 

whatsoever" and further noted its concern for the public: "I worry about you being amongst 

us. You are a dangerous person. You're a violent person. You're a person that cannot 

completely control his anger." Finally, the trial court also noted that even though he had 

previously served a prison term that "didn't stop this behavior." 

{¶ 90} In light of these facts, the court determined that Kinsworthy's sentences for 

menacing by stalking and burglary should be served consecutively. Specifically, the court 

stated: 

I find that there was a continuing course of conduct that you had 

already been to prison before you committed these crimes, that 

no one single sentence would adequately punish you for your 

behavior that was exhibited here, that it would demean the 

seriousness of both offenses to not impose consecutive 

sentences. 

From the trial court's statements at the sentencing hearing, we find the trial court properly 

complied with the dictates of R.C. 2929.14(C)(4). Therefore, the trial court did not err in 

imposing consecutive sentences. 

{¶ 91} We also disagree with Kinsworthy's contention that his sentence was in error 
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because the trial court did not consider the principles and purposes of felony sentencing 

under R.C. 2929.11 or weigh the seriousness and recidivism factors under R.C. 2929.12. 

The sentencing entry specifically states that the trial court considered "the principles and 

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

recidivism factors under R.C. 2929.12." Furthermore, the record from Kinsworthy's 

sentencing hearing reveals the trial court considered the necessary sentencing provisions 

before imposing sentence. In fact, the trial court referenced the purpose of sentencing, and 

further noted the serious nature of Kinsworthy's offenses, his criminal history, and his 

repeated failure to change his behavior and "turn his life around." 

{¶ 92} In light of the foregoing, we find the trial court did not err in sentencing 

Kinsworthy to an aggregate 27-month prison term for menacing by stalking and burglary. 

Kinsworthy's fifth and final assignment of error is overruled. 

{¶ 93} Judgment affirmed. 

PIPER and M. POWELL, JJ., concur.