[Cite as State v. Fluker , 2023
- Ohio
- 1295.] COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA STATE OF OHIO, :

Plaintiff

- Appell ee , : No. 1 11 678 v. : CECIL FLUKER, :

Defendant

- Appell ant

. :

JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: April 20, 2023

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR

- 21
- 665403

- A
Appearances: Michael C. O ’ Malley, Cuyahoga County Prosecut ing Attorney, and Eric Collins, A ssist ant Prosecuting Attorney, for a

ppell ee . Susan J. Moran, for a

ppell ant

.
ANITA LASTER MAYS, A

. J.:

D efendant

- appellant Cecil Fluker ( “ Fluker ” ) appeals his bench trial
conviction and sentenc e for two counts of menacing by stalking in violation of
R.C. 2903.211(A)(1), fourth

- degree felonies.

We affirm the trial court ’ s judgment.I. Facts and Procedural History Fluker was convicted of menacing by stalking D.W. ( “ Mother ” ) and her family, more particularly daughter Jane Doe (“Doe”) , who was 17 years of age at
the time of the indictments. Count 1 of Fluker ’ s indictment charged that on or about August 1, 2021, to October 30, 2021 : Cecil Flu c

ker [sic], by engaging in a patt ern of conduct, did knowingly cause [Mother] to believe that Cecil Flucker [sic] will cause physical harm to [Mother] or a family member of Mother or cause mental distress to [Mother] or a family member of [Mother ’ s]

. Furthermore, the offender made a thre at of physical harm to or against the victim. Count 2 of the indictment mirrored Count 1 except for the furthermore clause that provided “ the offender trespassed on the land or premises where the victim lives, is employed, or attends school. ”

The case was placed on the mental health docket and proceeded to a bench trial that began on May 24, 2022. Mother and two members of the Cleveland Police Department ( “ CPD ” ) testified for the state. Fluker testified in his defense.

Mother sta ted that in February 2020 , Doe became very angry with
Mother , “ busted ” Mother ’ s windows, and left the residence

. ( Tr. 39. ) Doe later
informed Mother that she was residing at the home of a w oman named Belinda Massey (“Massey”)

.

Mother said that Doe would sometimes r eturn to the house “ to eat, get food, get money, you know, stuff like that. So I would make sure she was okay. But I never knew the exact whereabouts of where she was because she wouldn ’ t tell

me. ” ( Tr. 40. ) Doe would approach th r ough the field that w as adjacent to Mother ’ shouse. Mother suspected that “ somebody dropped her off on the next street. ”

( Tr. 40. ) During calls with Doe, Mother often heard an unknown male speaking loudly in the background

. She learned that the male was Fluker in August or September 2021.

Doe was away for over a year

. Mother explained , to establish that Doe was a member of the household during the relevant period , that Doe graduated from high school in August or September 2021 , “ a couple of days * * * prior to her coming
back hom e . ” ( Tr. 42. ) Mother said that Doe returned home because Fluker was abusing her and that she ob se rved fingerprints on Doe ’ s neck and face. Two to three
weeks after Doe ’ s return, Mother found Doe a nother place to stay because Mother observed a male driving by the house and taking photographs of Mother and the family. The male was driving a silver car that Doe said belonged to Fluker ’ s brother.
Mother contacted police but did not go to t he station as the police advised.

The sta te introduced copies of several screen shots of threatening text
messages purportedly sent by Fluker to Doe who sent the screen shots to Mother

. The messages included threats to kill Doe and her family , burn the house down , and have people shoot into the house if Doe did not return to him

. Fluker ’ s cell phone number is listed at the top of one of the screen shots.

Mother said Fluker knew Doe was staying with Mother and that
Fluker called Doe one night and said, “‘ I ’ m in y our house. ’ When I got up to go [sic] the stairs, he was going back out the window, upstairs window. ” ( Tr. 50. ) Mother
said she did not see Fluker but heard sounds in the house and arrived downstairs intime to see “ the van that [Fluker] drives with ‘ sc hool transportation ’ on it

. It was pulling off. ” 1 ( Tr. 51. ) Mother did not state whether Doe was at the residence at the
time. On approximately Se ptember 12, 202 1 , Mother was standing on the porch when she observed a tall male , who she later determined to be Fluker , walking back and forth in front of the house

. The ma le stopped and asked whether Mother
knew who “ Mary ” was and said Mary had taken a gun from him. Mother walked into the house to get her phone to call Doe whose middle name was M ary . She
returned to see the male running through the adjacent field.

Mother testified that someone shot into the home later that day and

p olice were summoned

. In addition to the report of a shot being fired, Mother showed police a first

- floor windowpane that had been broken two days earlier

. Doe was not home when the window was broken but Mother s aid that D oe texted Mother
that “ [Fluker] was threatening t o break the window . * * * Y ou — all need to get out
of there. ” ( Tr. 60

. )

Mo ther showed police the screen shots of text messages reportedly sent to Doe by Fluker. Doe was not in the house the day o f the September 12, 2021 incident , but she communicated with police by phone

. Mother confirmed that the only time Fluker came to the house and talked with her was on September 12, 2021 , when she was standing on the porch

.

1 Fluker drove the van at the high school that Doe attended.Mother called police whenever she saw Fluker ’ s van in the ar ea and

said that additional threatening texts were sent to Doe after the September 12, 2021 incident

. Mother did not think that Doe wanted to be involved with the investigation
and stated that Doe no longer resided with Mother and if Doe was with Fluker again
Doe would not tell Mother

. Mother also said the family had relocated because she
did not feel safe.

CPD Officer Michael Deighan (“Officer Deighan”) responded to the scene on September 12, 2021. Mother told Officer Deighan that a male that was known to her who was, I believe, a teacher or security

— I can ’ t recall

— but worked at * * * her daughter ’ s school

— texted her daughter, came over to the house and shot one round into the house and sent her daughter a picture of him inside the house. ( Tr. 73. )
No bullet casing was recovered but O fficer Deighan observed “ a bullet
hole [that entered] through the north side of the house into the son ’ s room, and I do believe it lodged in his back wall. ” ( Tr. 74. ) A second bullet hole was not related to the current complaint

. Doe was not at the resi dence at the time the officer arrived, but the officer talked with Doe telephonically to confirm the content and source of
the text message screenshots

. The officer verified that the screenshots presented for
his review at trial were the ones he viewed at Mother ’ s home.

CPD D etective Sean Coleman (“Detective Coleman) talked with Mother several times beginning a few days after the incident. Mother forwarded f ivescreen shots to Coleman. One of the screenshots contained a telephone number

publi cly listed to Fluker.

Detective Coleman first interviewed Fluker during a recorded phone
call

. Excerpts were played for the jury. Fluker admitted that he went to Mother ’ s house around September 9 th or September 12 th and he knew Mother ’ s address.
Fluker did not take responsibility for breaking the window or the gunshot. The cell phone that Fluker used to communicate with the detective was the same number depicted in the text message screen shot. Fluker turned himself in a few weeks after
the interview.
Detective Coleman also monitored jail calls after Fluker ’ s arrest, several of which were played for the jury. During the jail calls, Fluker mentioned going to Mother ’ s house during the September 9 th to September 12 th , 2021 time period, that a gun was kept at the house where he resided, and that he lived in the city of Garfield Heights. Fluker also asked Doe what her “ people ” planned to do and offered to pay for the broken window.

Detective Coleman confirmed that ot her than a bullet hole, there was no ballistic evidence to indicate a shooting occurred contemporaneous to the report.
Detective Coleman was unable to speak directly with Doe , who stopped responding

to his texts and failed to show up for appointments . The state rested , and Fluker ’ s Crim.R. 29 motion for judgment of acquittal was denied

.

Fluker took the stand and corroborated that he has been in a relationship with Doe. Fluker did not meet Doe at school but met her at East 152dand St. Clair Avenue “ at a bus stop beat up real bad. And I jumped out and said,

‘ What is wrong with you? Where ’ s your parents, or who are you? ’” ( Tr. 113. ) Doe responded with a “ bunch of lies ” but gave Fluker her phone number. Fluker was not driving the school vehicle at the time. Fluker did not know that Doe was 17 but realized as time passed that Doe was young because she did “ young things and want[ed] to fight. ” ( Tr. 113
- 114. )

F luker res ided in Garfield Heights with Massey who had taken him in
because he was homeless. Doe later moved in to the home and Fluker took care of
Doe. “ [A]ll of us was trying to help each other. ” ( Tr. 115. ) Fluker stated Doe ha d
been living at his house the entire time, was still living there at the time of trial, and

was “ pregnant, like, right now again. ” ( Tr. 101. )

Fluker denied breaking the window, shooting into the house, and sending the threatening text messages. Fluker said that he, Doe , and P ( “ P ” ) , a female acquaintance of Doe who lived near Doe ’ s school, were involved in a three

way relationship. Fluker had an encounter with P without Doe , and P told him she
wanted a one - on - one relationship

. Fluker refused , and P angrily responded that her

“ people s were coming. ” ( Tr. 102. ) Fluker ran from P ’ s house and left some of his belongings, including his phone. P connected Fluker ’ s cell phone to an internet application that provided cell phone location tracking, camera views and access , and the ability to send texts and make call s that appeared to come from Fluker ’ s phone.

Fluker said that P ’ s family members lived on Mother ’ s street and

r eportedly sent photographs of Mother and the family and the threatening textmessa ges. Fluker explained that there w as a lot of fighting and gunfire on Mother ’ s

street and that P and her friends often rode by Mother ’ s house and urged Doe to come out to fight.

Fluker admitted that he talked with Mother the day that Mother was standing on her p orch : I told her, your daughter stole some stuff. I think she stole a gun. And she said, m y daughter don ’ t steal

. I said, w ell, I ’ m the one taking care of your daughter. I ’ m just trying to tell you, I ’ m not trying to hurt you. ( Tr. 108. )
Fluker clarified that the gun Doe took from the house w as a bb gun that appeared to be authentic and was kept at Fluker ’ s residence for security

purposes. Fluker a lso wanted Mother to know that he was not the one cau sing trouble: In my mind, because I do have mental issues

— you get it. And I ’ ve been through stuff before. So in my mind when I seen [sic] [Mother] I wanted to tell her it ’ s not me, and I was trying to show her. And she didn ’ t want to hear it. Like, she just looked at me like an older guy with her young daughter. And I ’ ll k ill you. Like, you know what I ’ m s aying? Like it was no trying to talk to her. ( Tr. 119. ) Fluker said that Mother went into the house and returned with a real gun.
Fluker ran through the next

- door field to the adjacent block. That was the only time
that Fluker encountered Mother.

Fluker accused Mother of attempting to run him off the road with her
children in the ca r and said the poli ce told her to stop, though police testified therewere no reports of the event. 2 Fluker confirmed that he called Detective Coleman

multiple times to say the allegations were not true and to turn himself in.

As to the jail calls, Fluker asked Doe what M other was going to do regarding the charges because Doe knew that Fluker w as innocent and had tried to
tell her Mother. Fluker offered to pay for the window to let Mother know he was trying to help her so Mother would feel secure that he was not the perpe trator. Fluker added that he had recently had a nervous breakdown and was taking
medication. The trial court found Fluker guilty on both counts and continued the sentencing hearing due to Mother ’ s desire to attend. Mother failed to appear at the June 6, 2022 sentencing

. T he state informed the trial court that Mother wanted a restraining order against Fluke r and that Mother had become alienated from Doe.

Defense counsel explained that Fluker ’ s mental health issues were complicated by a traumatic brain injury and skull fracture suffered years earlier
when Fluker was accidentally shot in the head by a friend playing with a gun. Fluker

was “ scared his mother would worry about [his] getting shot in the head ” so he told
her that he jumped off a buildi ng . (Tr. 141).

Fluker admitted he had a history of making poor choices, particularly with relationships , and had also been homeless , which impeded his ability to receive proper mental health care. Fluker was tearful and apologetic about the situation

2 Detective Coleman did state that officers may have been dispatched in response to a call but if no report was made there would be no record.w ith Mother, to the prosecutor because he did not understand the prosecutor was

trying to help him, to his lawyer , and to his mother who was present at the hearing.

The trial court admonished Fluker for being involved in an

“ inappropriate ” relationship as a 44
- year - old man that began when Doe was 17 and

was now 19 years of age at the time of trial :
I ’ m not

— I’m not agreeing to that. You are a 44

- year - old man. You ’ re not

— I ’ m not agreeing to this living situation. I don ’ t agree with it. So where are you going to live ? * * * And you ’ re not having

— you’re not going to be on my probation and have a relationship with a 19

- year - old girl

. * * * T hat started when she was basically 17. * * * You are 44 years old. * * * She ’ s a troubled girl, and you ’ re around young girls. ( Tr. 143

- 1 44. )
The trial court and defense counsel told Fluker that Doe was not good
for h im and she was a troubled girl and that working around young girls with his lack of boundaries and developmental issues was not good.

The trial court then admonished:
Court: It just burns me up. You ’ re not here on that kind of case, so I

can ’ t punish you like you are. But I can te ll you this, I ’ m not going to stand for it. If I put you on probation, you ’ re not living with Belinda [Massey ]. P eriod. And you ’ re not

— you ’ re not having these relationships. Are you still driving that van? Fluker: The van is broke [n]

. I was working for the school.
Court: I know. You shouldn ’ t be working for the school. You don ’ t

know boundaries. Do you know what boundaries are? If you don ’ t know when to stop your behavior. Your record is all about that. Your record is all about you not knowing what the boundaries are in personal relationships.I think a lot of it is because of your developmental issues. I get it. But you ’ re — you ’ re really

— you are this close to being charged with a rape of some girl you pick ed up in the van that you were trying to do this. Depending on the age. Maybe he should go to the CBCF. I don ’ t know.
* * * You know what, I ’ m going to remand him for the CBCF. I ’ m not comfortable with the situation. The living situation is terrible.
* * * Working around young girls with his lack of boundaries and understanding that. ( Tr. 144

- 146. )
The trial court decided that Fluker “ really needs programming on boundaries and decision

- making and appropriate relationships. ” ( Tr. 146. ) Counsel agreed to inquire about pot ential programs.
Court: Your fines, fees, and costs are waived. You ’ re going to be on

probation for two years starting at the CBCF. Failure to comply with the terms and conditions of probation, you ’ re facing 18 months on Count [1] and 18 months on Coun t [2] for a total of 36 months in prison. If you go to prison, you ’ re looking at up to two years of postrelease control. If you violate, you go back to prison for up to one half of the sentence that you were given, be charged with a felony called escape

. They can make your supervision harder for you or longer. ( Tr. 146

- 14 7. ) Fluker became visibly shaken and unable to sit up. The trial court

summon ed medical assistance. While waiting for their arrival , the trial courtreassured Fluker that he was not going to prison, that he would go to CBCF in

Cleveland where he could engage in programming, and that his children could visit. The jail medical unit arrived and the hearing ended.

On July 8, 2022, a nother hearing was he ld

. Fluker was housed in the psych iatric exclusion jail unit and receiv ed medication. Fluker told the trial court that the jail officers h ad threatened him and were trying to kill him. The trial court
informed Fluker that CBCF denied placement due to h is mental health issues, but
the trial court could inquire again

. Fluker was also advised that the Cincinnati
Volunteers of America could also provide services and if those options did not work out, prison would be the remaining route. The trial court wa s not willing to release
him into the community unless he had different housing.

Fluker asked why people wanted him to be incarcerated. Defense counsel responded that it was because his living situation was not appropriate. The
trial court clarified : That ’ s not the only reason. Your record is terrible. If you really want me to be harsh about it, your record is bad, mor e than bad, and the facts of this case are disturbing, so I don ’ t think that a straight release into the community is the appropriate thing. If you don ’ t like what I ’ m doing, your other c

hoice can be prison, but right now I ’ m willing to give you probation with treatment. ( Tr. 168. ) The sentencing entry provides in part: The court finds that a community control sanction will adequately protect the public and will not demean the seriousnes s of the offense. It is therefore ordered that the defendant is sentenced to two years of community control on Count 1, Count 2, under the supervision of theAdult Probation Department ’ s Mental Health/Developmental

Disabilities Unit with the following cond itions: 1.) defendant to abide by all rules and regulations of the probation department. 2.) report as directed by probation officer. 3.) follow recommendations of treatment team. 4.) attend all mental health appointments as scheduled. 5.) take all me dication as prescribed. 6.) attend programming as indicated in case plan. 7.) defendant is ordered to pay a monthly supervision fee of $20. 8.) random drug testing. 9.) conditions and terms of probation are subject to modification by the probation offic er and approval of the court. * * * Defendant is not to live with Belinda upon release from CBCF. Probation ordered to find housing for defendant upon release from CBCF and court must approve of defendant ’ s housing. Journal entry No. 124355986 , p. 1, 2 (June 1, 2022)

.

Fluker appeals.
II. Assignments of Error

Fluker presents three assignments of error:
I. The trial court erred in denying appellant ’ s motion for acquittal pursuant to Crim.R. 29 when the state failed to submit sufficient evidence of the cri mes charged, denying the appellant due process.
II. Appellant ’ s convictions are against the manifest weight of the evidence.
III. The trial court erred by imposing community control sanctions which unnecessarily impinged on appellant ’ s liberty.
III. Discus sion
A. Sufficiency and Manifest Weight

1. Standard of Review

“ Because a Crim.R. 29 motion for acquittal q uestions the sufficiency
of the evidence , ‘ [ w ] e apply the same standard of review to Crim.R. 29 motions as we use in reviewing the sufficiency of the e vidence. ’” Fairview Park v. Peah , 8thDist. Cuyahoga No. 110128, 2021

- Ohio

- 2685, ¶ 37, quoting State v. Tenace , 109

Ohio St.3d 255, 2006

- Ohio

- 2417, 847 N.E.2d 386, ¶ 37.

“ Whether the evidence is legally sufficient to sustain a verdict is a question of l aw. ” Id . at ¶ 38, citing State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). “ Sufficiency is a test of adequacy. ” Id

. “ We construe the evidence in a light most favorable to the prosecution and determine whether a rational trier
of fact could have found the essential elements of the offense proven beyond a
reasonable doubt. ” Id. , citing State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

While sufficiency tests the adequacy of the evidence to support t he verdict as a matter of law, a manifest weight inquiry asks whose evidence is more persuasive at inducing belief , “ t he state ’ s or the defendant ’ s? ” State v. Ryan , 8th Dist. Cuyahoga No. 108143, 2019

- Ohio

- 5339, ¶ 21, citing State v. Wilson , 113 Ohio
St. 3d 382, 2007

- Ohio

- 2202, 865 N.E.2d 1264, ¶ 25

. “ Although there may be legally sufficient evidence to support a judgment, it may nevertheless be against the manifest weight of the evidence. ” Id ., citing Thompkins at 387 ; State v. Johnson, 88 Ohio St.3d 95, 723 N.E.2d 1054 (2000).

We also recognize that the trial court and not a jury is serving as the
factfinder in our manifest

- weight review of a bench trial verdict.

“ Accordingly, to warrant reversal from a bench trial under a manifest weight of the evidence claim, this court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether in re solving conflicts in evidence, the trial court clearly lost its way and created such a manifestmiscarriage of justice that the judgment must be reversed, and a new

trial ordered. ” State v. Strickland , 183 Ohio App.3d 602, 2009

- Ohio

- 3906, 918 N.E.2d 170 , ¶ 25 (8th Dist.) , quoting Cleveland v. Welms , 169 Ohio App.3d 600, 2006

- Ohio

- 6441, 863 N.E.2d 1125 (8th Dist.), citing Thompkins at 390. See also State v. Kessler , 8th Dist. Cuyahoga No. 93340, 2010

- Ohio

- 2094, ¶ 13. Only in the most “‘ exceptional
cases in which the evidence weigh s heavily against the conviction, should a conviction be reversed as against the manifest weight of the evidence. ’” Thompkins

at 387, quoting State v. Martin , 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 ( 1st Dist. 1983).

2. Analysis Fluker argues that not only is the evidence insufficient to support the
elements of the convictions , but the evidence is not competent and credible. We disagree. Fluker was convicted of two counts of menacing by stalking under
R.C. 2903.211 (A)(1 ) which provides in pertinent part: (1) 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 a family or household member of the other person or cause mental distress to the other person or a family or household member of the other person.

“‘ Pattern of conduct ’ means two or more actions or incidents closely related in time. ”
R.C. 2903.211(D)(1). T he second count adds that Fluker trespa ssed on the land or premises where the victim lives, is employed, or attends school to commit the act

.R.C. 2903.211( D)(2) defines “ mental distress ” to mean any of the

following: (a) Any mental illness or condition that involves some temporary substanti al incapacity; (b) Any mental illness or condition that would normally require psychiatric treatment, psychological treatment, or other mental health services, whether or not any person requested or received psychiatric treatment, psychological treatment, or other mental health services. R.C. 2903.211(D)(11) defines a “ family or house hold member ” as any of the following: (a) Any of the following who is residing or has resided with the person against whom the act prohibited in division (A)(1) of this secti on is committed: * * * (ii) A parent, a foster parent, or a child of the person, or another person related by consanguinity or affinity to the person

. R.C. 2901.22(B) defines “ knowingly ” : A person acts knowingly, regardless of purpose, when the person is aware that the person ’ s conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when the person is aware that such circumstances probably exist

. In a ben ch trial under Ohio law, “ the trial court is entitled to the presumption of regularity, that is, the trial court is presumed to know and follow the law in arriving at its judgment unless it affirmatively appears to the contrary. ”
State v. Shropshire , 8th Dist. Cuyahoga No. 103808, 2016

- Ohio

- 7224, ¶ 37, citing State v. Eley , 77 Ohio St.3d 174, 180, 672 N.E.2d 640 (1996), citing State v. Post , 32 Ohio St.3d 380, 513 N.E.2d 754 (1987). “ [ I ] n an appeal from a bench trial, wepresume that a trial court relies only on relevant, material, and competent evidence

in arriving at its judgment. ” Id ., citing id . at 180

.

Mother provided testimony as well as exhibits of the threatening text messages that contained threats to the safety of Mother and her family. Police
testified that Doe confirmed the source of the texts. Mother also testified that she observed Fluker driving by the house to photograph the family. Both Mother and
Fluker testified that Fluker went to Mother ’ s house and spoke with Mother on or about Sep tember 12, 2021, though the ir descriptions of the interaction differed.

The testimony and evidence further support that a first

- floor window
had been broken and that Mother saw a tall male who m she later determined was Fluker running from the house. Just a few days after the broken window and later on the day that Fluker visited Mother, a bullet was fired into the house. Fluker testified on his behalf

, denied the allegations , and provided his explanation of the

events. This court find s that, if believed, the evidence and testimon y submitted to the trial court would convince the average mind of Fluker ’ s guilt beyond a reasonable doubt. Thus, we conclude t hat there was sufficient evidence to

co nvict Fluker of menacing by stalking

.

As to the manifest weight of the evidence, “ [d]eterminations of credibility and weight of the testimony remain within the province of the trier of
fact. ” State v. Newman , 8th Dist. Cuyahoga No. 109182, 2020

- Ohio

- 5087 , ¶ 27 , citing State v. DeHass , 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one ofthe syllabus. “ [T] he factfinder may take note of the inconsistencies and resolve them

accordingly, ‘ believ[ing] all, part or none of a witness ’ s testimony. ’” Id ., q uoting
State v. Raver , 10th Dist. Franklin No. 02AP

- 604, 2003

- Ohio

- 958, ¶ 21, citing
State v. Antill , 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964). Coupled with the bench trial presumption that the trial court knows and follows the law , this court finds that
the record does not support that this is the exceptional case where the evidence weighs heavily against conviction.

The first and second assignments of error are overruled.
B. Community Control Sanctions

1. Standard of review An appellate court reviews a trial court ’ s imposition of community

control sanctions for an abuse of discretion. State v. Cintron , 8th Dist. Cuyahoga No. 110600, 2022

- Ohio

- 305, ¶ 18, citing State v. Talty , 103 Ohio St.3d 177, 2004

- Ohio

- 4888, 814 N.E.2d 1201, ¶ 10. An “ abuse of discretion ” occurs where “ a court exercise[s] its judgment, in an unwarranted way, in regard to a matter over which it has discretionary authority. ” Johnson v. Abdullah , 166 Ohio St.3d 427, 2021

- Ohio

3304, 187 N.E.3d 463, ¶ 35.

“ [A] court will not be found to have abused its discretion in fashioning a community

- control sanction as long as the condition is reasonably related to the probationary goals of doing justice, rehabilitating the offender, and insuring good behavior

. ” State v. Chapman , 163 Ohio St.3d 290, 2020

- Ohio

- 6730, 170 N.E.3d 6, ¶ 8 , citing State v. Talty , 103 Ohio St. 3d 177, 2004

- Ohio

- 4888, 814 N.E.2d 1201,¶ 12. “ Further, a condition “‘ cannot be overly broad so as to unnecessarily impinge

upon the probationer ’ s libert y. ” ’” Id ., quoting i d . at ¶ 13, quoting State v. Jones , 49 Ohio St.3d 51, 52, 5 50 N.E.2d 469 (1990)

.

2. Analysis

“ R .C. 2929.15(A)(1) governs the authority of the trial court to impose conditions of community control. ” Talty at ¶ 10. Th e section provides that “ the trial court may impose one or more community sanctions, including residential, nonresidential, and financial sanctions, and any other conditions that it considers

‘ appropriate ’

. ” Id

. “ The General Assembly has thus granted broad discret ion to trial courts in imposing community

- control sanctions. ” Id

.

The trial court informed Fluker that the option s were CBCF, a similar facility or prison and cited, among other factors, its disapproval of Fluker ’ s relationship with then 19

- year - old and expect ant Doe , who resided at Massey ’ s home. The sentencing entry does not specifically forbid the relationship or ban contact with Doe, but states that Fluker is not to return to Massey ’ s home upon
release from CBCF. The entry also provided that the pro bation d epartment is to find housing for Fluker upon release and the trial court must approve the housing.

Fluker argues that the trial court improperly restricted Fluker from continuing his relationship with a female over the age of 18 and does not meet the
test set forth in Jones , 49 Ohio St.3d at 52
- 53, 550 N.E.2d 469. The restriction, states Fluker, impinges on his constitutional liberty interest s .“ [A] trial court can impose community

- control sancti ons that limit

the offender ’ s fundamental rights, provided that such limitations further the statutory goals of community control and are not overbroad. ” State v. Chapman , 163 Ohio St.3d 290, 2020

- Ohio

- 6730, 170 N.E.3d 6 , ¶ 16. This is true “ b ecause

conv icted criminals serving their sentences enjoy diminished liberty interests when compared with the general population

. ” Id

.

Chapman declared that the three

- part test in Jones applies to
determine whether the condition is reasonably related to the community control goals.
A court must “ consider whether the condition (1) is reasonably related to rehabilitating the offender, (2) has some relationship to the crime of which the offender was convicted, and (3) relates to c onduct which is criminal or reasonably related to future criminality and serves the statutory ends of probation. ” Jones , 49 Ohio St.3d at 53, 550 N.E.2d 469. Chapman at ¶ 23.

Fluker ’ s sole focus on the trial court ’ s somewhat strenuous objection
to Fluker ’ s relationship with Doe is misplaced because the trial court ’ s sentence and substantiation therefor must be considered in toto

. The trial court explained that
what Fluker “ really needs [is] p rogramming on boundaries and decision

- making and appropriate re lationships. ” ( Tr. 146. ) “ You don ’ t know boundaries. Do you know what boundaries are? If you don ’ t know when to stop your behavior. Your record is all about that. Your record is all about you not knowing what the boundaries are in personal relationsh ips. ” ( Tr. 145. ) The trial court did not orderthat Fluker have no contact with Doe but crafted a sentence that would allow him to

receive proper medication and counseling, a ssist him with decision

- making and help him to maintain appropriate boundaries while honing coping skills. The trial
court was also concerned with Fluker ’ s criminal history of violating protection orders, domestic violence , and telecommunications harassment over the prior ten

years.
T he record supports that the sentence m eets the Jones elements. CBCF was a reasonable alternative to imprisonment under the circumstances.
Fluker ’ s case was placed on the mental health docket due to his challenges. The trial
court formulated a sentence that would allow Fluker to receive the co unseling and
medication that he needed to assist him with making reasonable decisions. The trial

court also directed that Fluker ’ s CBCF placement be supervised by the mental health and development disabilities unit of the adult probation department. In c rafting the sentence, the trial court took i nto consideration Fluker ’ s history of similar criminal
behavior

. Thus, CBCF placement allowed Fluker to receive counseling for behavioral modification.

The trial court also explained to Fluker that in addition to his poor reasoning: Your record is terrible. If you really want me to be harsh about it, your record is bad, more than bad, and the facts of this case are disturbing, so I don ’ t think that a straight release into the community is the appropriate thing . If you don ’ t like what I ’ m doing, your other choice can be prison, but right now I ’ m willing to give you probation with treatment.( Tr. 168. ) The record supports that the trial court worked within its discretion

to craft a sentence that was reasonably r elated to Fluker ’ s convictions. T his court
does not find that the nonstandard community

- control conditions in this case impinges on Fluker ’ s liberty interests. The trial court opined that Fluker should not be directly released into the community without boundaries and counseling. We reiterate that the trial court did not bar Fluker from contact with Doe. To the extent Fluker complains that the condition that he not return to Belinda Massey ’ s home,
is not necessarily intrinsic to community contr ol, that condition and the others “ are tailored to the rehabilitation of the offender, ” and “ are appropriately crafted to meet a proper rehabilitative purpose. ” Chapman , 163 Ohio St.3d 290, 2020

- Ohio

- 6730, 170 N.E.3d 6, ¶ 18, 19.

The third assignment of error lacks merit.
IV. Conclusion

The trial court ’ s judgment is affirmed. It is ordered that appellee recover from appellant costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mand ate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant ’ s conviction having been affirmed, any bail pending appeal is terminated.A certified copy of this entry shall constitute the mandate pursua nt to Rule 27

of the Rules of Appellate Procedure.

______ ANITA LASTER MAYS, ADMINISTRATIVE JUDGE
MICHELLE J. SHEEHAN , J., and EILEEN T. GALLAGHER, J., CONCUR