[Cite as State v. Napier, 2017-Ohio-246.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

CLERMONT COUNTY 

STATE OF OHIO, : 

 CASE NO. CA2016-04-022 

 Plaintiff-Appellee, : 

 O P I N I O N 

 : 1/23/2017 

 - vs - 

 : 

JOSHUA NAPIER, : 

 Defendant-Appellant. : 

APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS 

Case No. 2015 CR 374 

D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, 76 South 

Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee 

Gary A. Rosenhoffer, 313 East Main Street, Batavia, Ohio 45103, for defendant-appellant 

 S. POWELL, P.J.

{¶ 1} Defendant-appellant, Joshua Napier, appeals his conviction and sentence in 

the Clermont County Court of Common Pleas. For the reasons that follow, we affirm the 

judgment of the trial court.

{¶ 2} On June 30, 2015, the Clermont County Grand Jury returned a one-count 

indictment charging Napier with assault against a peace officer in violation of R.C. 

2903.13(A), a fourth-degree felony. The charge stemmed from an altercation that occurred 
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at Midtown Tavern in Felicity, Ohio. Napier entered pleas of not guilty and not guilty by 

reason of insanity based upon his affliction with post-traumatic stress disorder ("PTSD"). The 

trial court referred Napier to the Court Clinic, which verified Napier's diagnosis. However, the 

Court Clinic found that Napier did not meet the criteria to raise the defense of not guilty by 

reason of insanity. 

{¶ 3} Prior to trial, appellee filed a motion in limine seeking to preclude Napier from 

introducing evidence of his PTSD or prior military service. Following a hearing on the matter, 

the trial court granted appellee's motion. Shortly thereafter, the case was tried before a jury, 

which rendered a verdict of guilty to the charge. During trial, the court sustained an objection 

by the state when Napier attempted to elicit testimony regarding his PTSD. Further, the trial 

court declined Napier's request to give jury instructions regarding certain affirmative defenses 

and lesser included or inferior offenses. The record revealed the following facts. 

{¶ 4} The altercation between Napier and Officer Seng occurred in the morning hours 

of June 21, 2015; however, the two crossed paths earlier in the afternoon on June 20, 2015. 

The first interaction occurred when Officer Seng conducted a traffic stop on a vehicle in 

which Napier was a passenger. Napier's significant other, Falisha McCann, was the driver of 

the vehicle. After conducting routine traffic stop procedures, such as requesting identification 

from the occupants, Officer Seng released the occupants with a verbal warning. 

{¶ 5} Later that night, McCann and Napier accompanied some friends to Midtown 

Tavern, a local bar in Felicity, Ohio. Napier had been consuming alcohol throughout the 

evening and McCann was the designated driver. During the course of the evening at 

Midtown Tavern, Napier expressed his discontent and frustration with the traffic stop from 

earlier in the day, and more specifically, with Officer Seng. Napier communicated these 

feelings to two tavern patrons, Sydney Grant and Alexandria Mefford. Grant testified that 

Napier threatened to punch Officer Seng in the face. Following this discussion, Grant, an 
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acquaintance of Officer Seng, sent him a text message informing him of the interaction with 

Napier. Officer Seng took this information under advisement. 

{¶ 6} Approximately 30 minutes later, Napier was involved in an incident that caused 

physical damage to the trim of the bar top. In response, the bartender, Brandon Byus, 

informed Napier that he ought to finish his drink and head home. After finishing his drink, 

Napier, McCann, and Napier's friend, Michael Wehrum, exited the tavern and began to walk 

home. Shortly after the three exited, Officer Seng arrived at the Midtown Tavern to conduct a 

"bar check," a procedure typically executed to help handle any issues that may arise near 

closing time. At this time, Officer Seng was on duty, arrived in uniform, and parked his 

marked police cruiser outside of the tavern. Upon entering the tavern, Officer Seng was 

informed that Napier was asked to leave following the damage to the bar top trim. 

{¶ 7} Officer Seng observed the damage and began to further investigate. In the 

course of his investigation, Officer Seng noticed Napier and Wehrum walking down the 

sidewalk approximately three blocks from the tavern. Next, Officer Seng entered his police 

cruiser, activated its lights, and pulled behind McCann's vehicle, which was following along 

with Napier and Wehrum. Officer Seng began to discuss the bar incident with Napier. In 

response, Napier expressed his discontent with Officer Seng and threatened to harm him, as 

well as denied any wrongdoing with regard to the damage to the bar top. Following this 

interaction, Napier began to walk back towards the tavern, disregarding Officer Seng's 

warnings that Napier may be charged with various citations if he did not stop. Napier entered 

the tavern and began to discuss the events with Byus. 

{¶ 8} Next, Officer Seng entered the tavern and approached Napier, informing him 

that he was being removed from the tavern and placed him in the escort position. A struggle 

ensued, followed by a single punch thrown by Napier striking Officer Seng, resulting in a gash 

on Officer Seng's nose and loss of blood. The struggle continued after the punch until Officer 
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Seng was able to secure Napier with the assistance of a tavern patron. 

{¶ 9} In rendering its guilty verdict, the jury made two individual findings regarding the 

victim, Officer Seng. The jury found that at the time of the assault Officer Seng was both: (1) 

a peace officer, and (2) that he was carrying out his official duties. The trial court sentenced 

Napier to twelve months in prison. Napier now appeals. 

{¶ 10} Assignment of Error No. 1: 

{¶ 11} THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF 

NAPIER WHEN IT GRANTED THE STATE'S MOTION IN LIMINE AND PREVENTED 

NAPIER FROM PRESENTING RELEVANT AND ADMISSIBLE EVIDENCE AS A DEFENSE. 

{¶ 12} Assignment of Error No. 2: 

{¶ 13} THE TRIAL COURT COMMITTED PREJUDICAL ERROR WHEN IT REFUSED 

TO CHARGE THE JURY ON INFERIOR AND/OR LESSER INCLUDED OFFENSES. 

{¶ 14} Assignment of Error No. 3: 

{¶ 15} THE TRIAL COURT COMMITTED PREJUDICAL ERROR WHEN IT FAILED 

TO CHARGE THE JURY AS TO SUBSTANTIVE LAW RELEVANT TO THIS CASE. 

{¶ 16} Assignment of Error No. 4: 

{¶ 17} THE TRIAL COURT COMMITTED PREJUDICAL ERROR WHEN IT 

EXCLUDED RELEVANT AND MATERIAL EVIDENCE. 

{¶ 18} The purpose and effect of a motion in limine is distinct from that of a motion to 

suppress. "A 'motion to suppress' is defined as a '[d]evice used to eliminate from the trial of 

a criminal case evidence which has been secured illegally[;]'" thus, it "is the proper vehicle for 

raising constitutional challenges based on the exclusionary rule * * *." (Citations omitted.) 

State v. French, 72 Ohio St.3d 446, 449 (1995), quoting Black's Law Dictionary (6th Ed.1990) 

1014. "A 'motion in limine' is defined as '[a] pretrial motion requesting [the] court to prohibit 

opposing counsel from referring to or offering evidence on matters so highly prejudicial to 
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[the] moving party that curative instructions cannot prevent [a] predispositional effect on [the] 

jury.'" French at 449, citing Black's Law Dictionary, supra, at 1013. The purpose of a motion 

in limine "is to avoid injection into [the] trial of matters which are irrelevant, inadmissible and 

prejudicial * * *." Black's Law Dictionary, supra, at 1013-14. 

{¶ 19} "A motion in limine * * * is 'a tentative, interlocutory, precautionary ruling by the 

trial court reflecting its anticipatory treatment of [an] evidentiary issue.'" State v. Harris, 12th 

Dist. Butler No. CA2007-11-280, 2008-Ohio-4504, ¶ 27, quoting State v. Grubb, 28 Ohio 

St.3d 199, 201-02 (1986). "A motion in limine is directed to the inherent discretion of the trial 

judge, about an evidentiary issue that is anticipated, but has not yet been presented in full 

context." (Citation omitted.) State v. Harris, 12th Dist. Butler No. CA2007-11-280, 2008-

Ohio-4504, ¶ 27. It is important to note that not all motions in limine are alike. See State v. 

Shalash, 12th Dist. Warren No. CA2014-12-146, 2015-Ohio-3836, ¶ 30-31. 

{¶ 20} A definitive or exclusionary motion in limine is the functional equivalent of a 

motion to suppress, which determines the admissibility of evidence with finality. State v. 

Johnston, 2d Dist. Montgomery No. 26016, 2015-Ohio-450, at ¶ 16, citing French at 450. 

Specifically, granting a definitive or exclusionary motion in limine not only prevents evidence 

from being introduced, but also prevents any mentioning of the excluded evidence during 

trial. Johnston at ¶ 16, citing State v. Echard, 9th Dist. Summit No. 24643, 2009-Ohio-6616, 

¶ 20. A motion in limine may be used in this regard "to suppress evidence that is either not 

competent or improper due to some unusual circumstance not rising to the level of a 

constitutional violation." Johnston at ¶ 16, citing French at 450. "'The essential difference 

between a [motion to suppress] and a motion in limine is that the former is capable of 

resolution without a full trial, while the latter requires consideration of the issue in the context 

of the other evidence.'" (Emphasis deleted.) Johnston at ¶ 17, quoting State v. Hall, 57 Ohio 

App.3d 144, 146 (8th Dist.1989). 
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{¶ 21} We review a trial court's decision to admit or exclude evidence for an abuse of 

discretion. State v. Boles, 12th Dist. Brown No. CA2012-06-012, 2013-Ohio-5202, ¶ 14. "A 

reviewing court should not disturb evidentiary decisions in the absence of an abuse of 

discretion that has created material prejudice." Id., citing State v. Smith, 12th Dist. Fayette 

No. CA2007-10-035, 2008-Ohio-5931, ¶ 33. An abuse of discretion connotes more than an 

error of law or judgment; it implies that the trial court's decision was unreasonable, arbitrary, 

or unconscionable. Boles at ¶ 14. 

{¶ 22} In this case, the ruling was not the functional equivalent of a motion to 

suppress. It is clear from the trial court's decision and entry on the state's motion in limine 

that the trial court did not determine with finality the admission of evidence of Napier's PTSD 

or prior military service. Specifically, the trial court stated: 

[i]t is premature to rule that the PTSD evidence is to be 

precluded altogether. If it is used for some other recognized 

purpose, other than a diminished-capacity defense, it may be 

relevant. Presently, the Court has nothing before it at this point 

to rule on its admissibility for some other purpose. 

If the evidence regarding [Napier's] PTSD is determined to be 

relevant during the actual context of the trial in this matter, the 

Court will not exclude it * * *. 

Here, the trial court determined that evidence of Napier's PTSD diagnosis was inadmissible 

in regards to presenting a diminished-capacity defense. However, the trial court reserved 

ruling on the admissibility of the evidence for a different purpose until it could give 

consideration of the issue in the context of the other evidence presented at trial. With 

respect to Napier's prior military service, the trial court questioned the relevancy of the 

evidence. Nonetheless, the trial court specifically stated "permanent preclusion of this 

evidence is not warranted at this point" and that any ruling, "is anticipatory in nature and may 

be changed when the issue of admissibility of any evidence is presented in the actual context 

of the trial." Therefore, the trial court intended to prevent the injection of irrelevant and 
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inadmissible evidence into the trial, which is the precise purpose of a motion in limine, but did 

not prevent any mention of it at trial with finality. 

{¶ 23} The trial court found that Napier intended to present evidence of his PTSD 

diagnosis and prior military service as a defense to the intent element of his charge; 

therefore, Napier intended to present a diminished-capacity defense. The trial court did not 

abuse its discretion in preventing the admission of such evidence for this purpose because 

Ohio "jurisprudence definitively states that the partial defense of diminished capacity is not 

recognized in Ohio." State v. Fulmer, 117 Ohio St.3d 319, 2008-Ohio-936, ¶ 66. "Thus, 

when a defendant does not assert an insanity defense, it is well settled that he may not offer 

expert testimony in an effort to show that he lacked the mental capacity to form the specific 

mental state required for a particular crime." Id. at ¶ 67. 

{¶ 24} Napier argues that the intent element of his assault charge could have been 

negated because his conduct was a "simple reaction" due to his PTSD. However, the trial 

court correctly found this argument unconvincing because it demonstrates the exact limitation 

in offering such evidence as explained in Fulmer. Napier did not qualify for a not guilty by 

reason of insanity defense; therefore, he may not offer expert testimony to negate his 

capacity to form the specific mental state required for assault. 

{¶ 25} Napier further argues that Ohio recognizes PTSD as a standalone defense. In 

support of this argument, Napier relates PTSD to battered woman syndrome and asserts that 

the syndrome has been found to be a standalone defense. However, the Ohio Supreme 

Court case Napier cites to support this argument does not support this proposition. Rather, 

the case states that evidence of battered woman syndrome is relevant in the context of 

establishing the second element of self-defense, as discussed below. See State v. Koss, 49 

Ohio St.3d 213, 217-18 (1990). Moreover, the court in Koss definitively stated the 

"admission of expert testimony regarding the battered woman syndrome does not establish a 
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new defense or justification." Koss at 217. 

{¶ 26} Additionally, Napier asserts two instances where PTSD has been recognized as 

a standalone defense. See State v. Haines, 112 Ohio St.3d 393, 2006-Ohio-6711, ¶ 29;

State v. Rivera-Carrillo, 12th Dist. Butler No. CA2001-03-054, 2002 WL 371950, *14 (Mar.11, 

2002). However, neither case supports such proposition with respect to PTSD. Rather, 

Haines permitted presenting such evidence to prove a victim's state of mind upon a credibility 

challenge and Rivera-Carrillo found that it may be relevant as evidence demonstrating a 

defendant was "under the influence of sudden passion or sudden fit of rage," as it relates to 

voluntary manslaughter. Haines at ¶ 29; Rivera-Carrillo at *14. 

{¶ 27} Next, Napier requested the trial court give jury instructions on PTSD, selfdefense, a defendant's right to resist an unlawful arrest, and excessive force. However, "[a] 

trial court is not required to instruct the jury on [an affirmative defense] in every case where it 

is attempted to be presented. The defendant must first present sufficient evidence at trial to 

warrant such an instruction." State v. Evegan, 12th Dist. Warren No. CA97-08-091, 1999 WL 

559694, *2 (Aug. 2, 1999), citing City of Bucyrus v. Fawley, 50 Ohio App.3d 25, 26-27 (3d 

Dist.1988). "In reviewing the record to ascertain the presence of sufficient evidence to 

support the giving of a proposed jury instruction, an appellate court should determine whether 

the record contains evidence from which reasonable minds might reach the conclusion 

sought by the instruction." State v. Davis, 12th Dist. Madison No. CA2015-05-015, 2016-

Ohio-1166, ¶ 35, citing State v. Risner, 120 Ohio App.3d 571, 574 (3d Dist.1997). If the trial 

court finds that the evidence is legally insufficient to raise the issue, it will remove the issue 

from jury consideration. Evegan at *2. We review this decision for an abuse of discretion. 

Id.

{¶ 28} As discussed above, Ohio does not recognize PTSD as a standalone defense; 

therefore, the trial court did not abuse its discretion by not providing the jury with instructions 
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on it as a standalone defense. Next, to establish the affirmative defense of self-defense, a 

defendant must prove by a preponderance the following three elements: (1) that the 

defendant was not at fault in creating the situation giving rise to the affray, (2) that the 

defendant had a bona fide belief that he was in imminent danger of death or great bodily 

harm and that his only means of escape from such danger was in the use of such force, and 

(3) that the defendant did not violate any duty to retreat or avoid danger. State v. Ray, 12th 

Dist. Butler No. CA2012-10-213, 2013-Ohio-3671, ¶ 26, citing State v. Barnes, 94 Ohio St.3d 

21, 24 (2002). 

{¶ 29} Here, the trial court did not err by not instructing the jury on self-defense. Even 

assuming Napier had sufficiently proven the second element of self-defense by presenting 

evidence regarding his PTSD and prior military service, the trial court found that Napier would 

have failed to establish the first element of self-defense because Napier was clearly at fault in 

creating the situation giving rise to the affray in that he broke the bar top and was told to stay 

out of the tavern and not return. The record supports the trial court's finding as testimony 

revealed that Napier disregarded Officer Seng's instruction and returned to the tavern; 

thereby, creating the situation requiring Officer Seng to reenter the tavern. 

{¶ 30} In addition to jury instructions regarding his PTSD and self-defense, Napier 

argues the trial court erred by failing to give his requested instructions regarding excessive 

force by a police officer and a defendant's right to resist an unlawful arrest. Jury instructions 

in a criminal case "must be given when they are correct, pertinent, and timely presented." 

State v. Joy, 74 Ohio St.3d 178, 181 (1995). "A trial court must fully and completely give jury 

instructions which are relevant and necessary for the jury to weigh the evidence and 

discharge its duty as the fact-finder." Davis at ¶ 27, citing State v. Comen, 50 Ohio St.3d 

206, paragraph two of the syllabus (1990). A reviewing court may not reverse a criminal 

conviction based upon jury instructions unless "it is clear that the jury instructions constituted 
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prejudicial error." Davis at ¶ 28. "An appellate court's duty is to review the instructions as a 

whole, and, if taken in their entirety, the instructions fairly and correctly state the law 

applicable to the evidence presented at trial, reversible error will not be found merely on the 

possibility that the jury may have been misled." Id.

{¶ 31} Napier argues that since his arrest was unlawful, the jury should have been 

instructed that it may find Napier lawfully resisted arrest. However, as Napier was never 

charged with resisting arrest, the instruction was not relevant or necessary for the jury to 

discharge its duty as the fact-finder. (Emphasis sic.) State v. Corbin, 12th Dist. Fayette No. 

CA2010-01-001, 2010-Ohio-3819, ¶ 13, n.1 ("a lawful arrest is not an element of assault on a 

peace officer"), citing State v. Peer, 2d Dist. Montgomery No. 19104, 2002-Ohio-4198, ¶ 10. 

Even assuming arguendo Napier's arrest was unlawful, it would not justify assaulting Officer 

Seng. Thus, the trial court did not abuse its discretion by not giving an instruction on lawfully 

resisting arrest. 

{¶ 32} Next, Napier argues the trial court erred by not giving an instruction on 

excessive force because the jury should have been given an opportunity to find that Officer 

Seng's use of force was wholly unnecessary. Excessive force is an affirmative defense to a 

resisting arrest charge, and as discussed above, Napier was not charged with resisting 

arrest; therefore, the trial court did not abuse its discretion by not instructing the jury on the 

defense. See Village of Blanchester v. Newland, 12th Dist. Clinton No. CA83-07-008, 1984 

WL 3426, *3 (Sept. 17, 1984) (stating that excessive or unnecessary force is a judicially 

created defense to the crime of resisting arrest), citing City of Columbus v. Fraley, 41 Ohio 

St.2d 173, paragraph three of the syllabus (1975), certiorari denied, 423 U.S. 872, 96 S.Ct. 

138. Moreover, even viewing this argument as providing factual support for the second 

element of self-defense, it does not negate that Napier was still at fault in creating the 

situation giving rise to the affray. Therefore, the trial court did not abuse its discretion with 
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respect to not instructing the jury on PTSD, self-defense, a defendant's right to resist an 

unlawful arrest, and excessive force. 

{¶ 33} Finally, Napier argues that the trial court erred by not instructing the jury on the 

lesser included or inferior degree offenses of assault and disorderly conduct. "A jury 

instruction on a lesser included offense is required only where the evidence presented at trial 

would reasonably support both an acquittal of the crime charged and a conviction on the 

lesser included offense." State v. Tolle, 12th Dist. Clermont No. CA2014-06-042, 2015-Ohio1414, ¶ 11, citing State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, ¶ 192. There must 

be "sufficient evidence" to "allow a jury to reasonably reject the greater offense and find the 

defendant guilty on a lesser included (or inferior degree) offense." (Emphasis deleted.) 

Trimble at 192. In making its decision, the trial court must view the evidence in a light most 

favorable to the defendant. Id. We review this decision for an abuse of discretion. State v. 

Doby, 12th Dist. Butler No. CA2013-05-084, 2014-Ohio-2471, ¶ 17. 

{¶ 34} Napier requested a jury instruction on assault pursuant to R.C. 2903.13(A) and 

2903.13(B). R.C. 2903.13(A) provides that: "[n]o person shall knowingly cause or attempt to 

cause physical harm to another * * *." R.C. 2903.13(B) provides that: "[n]o person shall 

recklessly cause serious physical harm to another * * *." If convicted under either section, a 

defendant is guilty of assault; therefore, neither section is a lesser included or inferior degree 

offense of the other. See State v. Deem, 40 Ohio St.3d 205, 209 (1988) (defining lesser 

included offense as an offense having a penalty of lesser degree than the indicted offense 

and which, as statutorily defined, also being committed, and some element of the greater 

offense is not required to prove the commission of the lesser offense); see id. (defining an 

inferior degree offense as one with identical elements, except for one or more additional 

mitigating elements). 

{¶ 35} In this case, the jury verdict form required the jury to make separate findings as 
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to the charge of assault pursuant to R.C. 2903.13(A) and the enhancing factor that the victim 

was a peace officer pursuant to R.C. 2903.13(C)(5). The trial court also instructed the jury 

that "[i]f your verdict is guilty as to the charge of assault in this case you will also separately 

decide beyond a reasonable doubt the additional element of whether the victim in this matter 

was a peace officer at the time of the offense." The trial court further explained that the jury 

may find Napier guilty of assault pursuant to R.C. 2903.13(A), while finding that Officer Seng 

was not a peace officer in the performance of his official duties at the time of the offense. 

Therefore, contrary to Napier's claim otherwise, the trial court did instruct the jury on the 

inferior degree offense of assault pursuant to R.C. 2903.13(A) and did not abuse its 

discretion by not instructing the jury on assault pursuant to R.C. 2903.13(B). 

{¶ 36} Napier further argues that the trial court erred by not instructing the jury on the 

lesser included offense of disorderly conduct. In order to warrant an instruction on the lesser 

included offense of disorderly conduct, the trial court would have had to find that "(1) the jury 

could have reasonably concluded that [Napier] did not knowingly cause or attempt to cause 

physical harm to Officer [Seng] but instead (2) recklessly caused inconvenience, annoyance 

or alarm by engaging in violent or turbulent behavior." State v. Beard, 12th Dist. Butler No. 

CA98-02-019, 1998 WL 857856, *2 (Dec. 14, 1998). 

{¶ 37} Here, the evidence indicated that Napier punched Officer Seng in the nose 

followed by a struggle between the two until Napier was subdued with the assistance of a 

tavern patron. As a result of this punch, Officer Seng's nose sustained a large gash and loss 

of blood. Given these facts, the jury could not reasonably have found Napier not guilty of 

assault, but guilty of the lesser offense of disorderly conduct. See State v. Keith, 10th Dist. 

Franklin Nos. 08AP-28 and 08AP-29, 2008-Ohio-6122, ¶ 38 (finding lesser included jury 

instruction on disorderly conduct not warranted where defendant injured police officers by 

engaging and throwing them to the floor); State v. Thacker, 4th Dist. Lawrence No. 04CA18, 
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2005-Ohio-1227, ¶ 8-13 (finding lesser included jury instruction on disorderly conduct not 

warranted where defendant caused physical injuries to the victim). Therefore, the trial court 

did not abuse its discretion by not giving jury instructions on the aforementioned lesser 

included or inferior degree offenses. 

{¶ 38} Accordingly, Napier's first, second, third, and fourth assignments of error are 

overruled. 

{¶ 39} Assignment of Error No. 5: 

{¶ 40} THE TRIAL COURT COMMITTED PREJUDICAL ERROR WHEN IT 

SENTENCED NAPIER TO THE OHIO PENAL SYSTEM. 

{¶ 41} In his final assignment of error, Napier argues that his sentence is clearly and 

convincingly contrary to law because the trial court should have imposed community control 

and it did not consider Napier's prior military service and PTSD in determining his sentence. 

{¶ 42} R.C. 2953.08(G)(2) sets forth the standard of review for all felony sentences. 

State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1; accord 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, "[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." 

{¶ 43} As explained in Marcum, "[t]he appellate court's standard for review is not 

whether the sentencing court abused its discretion." Marcum at ¶ 9. Rather, pursuant to 

R.C. 2953.08(G)(2), an appellate court may only "increase, reduce, or otherwise modify a 

sentence * * * or may vacate the sentence and remand the matter to the sentencing court for 

resentencing" if the court finds by clear and convincing evidence "(a) [t]hat the record does 

not support the sentencing court's findings[,]" or "(b) [t]hat the sentence is otherwise contrary 

to law." R.C. 2953.08(G)(2)(a)-(b). A sentence is not "clearly and convincingly contrary to 
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law where the trial court considers the principles and purposes of R.C. 2929.11, as well as 

the factors listed in R.C. 2929.12, properly imposes postrelease control, and sentences the 

defendant within the permissible statutory range." State v. Ahlers, 12th Dist. Butler No. 

CA2015-06-100, 2016-Ohio-2890, ¶ 8, citing State v. Moore, 12th Dist. Clermont No. 

CA2014-02-016, 2014-Ohio-5191, ¶ 6. Furthermore, if a sentence imposed does not require 

any of the statutory findings identified in R.C. 2953.08(G)(2), an appellate court will 

nonetheless conduct a review of the sentence "under a standard that is equally deferential to 

the sentencing court." Marcum at ¶ 23. 

{¶ 44} In the present case, a jury found Napier guilty of assault of a peace officer, a 

fourth-degree felony. For a fourth-degree felony, a sentencing court may impose a prison 

term from six to eighteen months. R.C. 2929.14(A)(4). "R.C. 2929.13(B)(1)(a) sets forth a 

presumption for community control if an offender is convicted of or pleads guilty to a felony of 

the fourth or fifth degree that is not an offense of violence." State v. Hughes, 12th Dist. 

Butler No. CA2013-05-081, 2014-Ohio-1320, ¶ 11. R.C. 2929.13(B)(1)(A) provides: 

Except as provided in division (B)(1)(b) of this section, if an 

offender is convicted of or pleads guilty to a felony of the fourth 

or fifth degree that is not an offense of violence or that is a 

qualifying assault offense, the court shall sentence the offender 

to a community control sanction of at least one year's duration if 

all of the following apply: 

(i) The offender previously has not been convicted of or 

pleaded guilty to a felony offense. 

(ii) The most serious charge against the offender at the time of 

sentencing is a felony of the fourth or fifth degree. 

(iii) If the court made a request of the department of 

rehabilitation and correction pursuant to division (B)(1)(c) of this 

section, the department, within the forty-five-day period specified 

in that division, provided the court with the names of, contact 

information for, and program details of one or more community 

control sanctions of at least one year's duration that are available 

for persons sentenced by the court. 
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(iv) The offender previously has not been convicted of or 

pleaded guilty to a misdemeanor offense of violence that the 

offender committed within two years prior to the offense for which 

sentence is being imposed. 

{¶ 45} Here, the presumption of community control is inapplicable because Napier was 

convicted of an offense of violence as defined by the statute. R.C. 2901.01(A)(9)(a) (defining 

"offense of violence" as a violation of R.C. 2903.13). Furthermore, pursuant to R.C. 

2929.13(K)(4), a "qualifying assault offense" means a violation of R.C. 2903.13 for which the 

penalty provision in division (C)(8)(b) or (C)(9)(b) of that section applies. Neither apply in this 

case because Napier's assault offense was not against hospital personnel or a judge, 

magistrate, prosecutor, or court official or employee. See R.C. 2903.13(C)(8)(b); R.C. 

2903.13(C)(9)(b); R.C. 2903.13(D)(14). Therefore, contrary to Napier's assertion, R.C. 

2929.13(B)(1)(a) does not apply. However, R.C. 2929.13(B)(2) provides that "[i]f division 

(B)(1) of this section does not apply * * *, in determining whether to impose a prison term as a 

sanction for a felony of the fourth or fifth degree, the sentencing court shall comply with * * * 

[R.C. 2919.11] and [R.C. 2929.12]." 

{¶ 46} After a thorough review of the record, we find no error in the trial court’s 

decision to sentence Napier to a prison term. The record reflects that Napier's sentence is 

not clearly and convincingly contrary to law because the trial court properly considered the 

principles and purposes of R.C. 2929.11 and the factors listed in 2929.12, imposed the 

required optional three-year postrelease control term, and sentenced Napier within the 

permissible statutory range for a fourth-degree felony. Napier further argues that the trial 

court failed to consider his prior military service and any mental, emotional, or physical 

condition derived therefrom, as required by R.C. 2929.12(F). However, the record does not 

support Napier's argument because the trial court stated at sentencing that not only had it 

reviewed R.C. 2929.11 and R.C. 2919.12, but also that it considered Napier's PTSD 
Clermont CA2016-04-022 

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condition, and concluded that community control was not warranted at that time. Moreover, 

the record clearly demonstrates the trial court considered Napier's prior military service by 

thanking him for his service, while also stating that such service did not excuse the offense of 

violence that occurred. 

{¶ 47} Therefore, because we find Napier's sentence is not clearly and convincingly 

contrary to law, and because the record fully supports the trial court's sentencing decision, 

Napier's fifth assignment of error is overruled. 

{¶ 48} Judgment affirmed. 

 RINGLAND and HENDRICKSON, JJ., concur.