[Cite as State v. Hargraves, 2020-Ohio-3569.]

COURT OF APPEALS 

MUSKINGUM COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : JUDGES: 

 : 

 : Hon. William B. Hoffman, P.J. 

 Plaintiff-Appellee : Hon. W. Scott Gwin, J. 

 : Hon. Patricia A. Delaney, J. 

-vs- : 

 : Case No. CT2019-0045 

 : 

RICHARD HARGRAVES : 

 : 

 : 

 Defendant-Appellant : O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Muskingum County 

Court of Common Pleas, Case No. 

CR2019-20 

JUDGMENT: AFFIRMED 

DATE OF JUDGMENT ENTRY: June 30, 2020 

APPEARANCES: 

For Plaintiff-Appellee: For Defendant-Appellant: 

 

D. MICHAEL HADDOX JAMES A. ANZELMO 

MUSKINGUM CO. PROSECUTOR ANZELMO LAW 

TAYLOR P. BENNINGTON 446 Howland Drive 

27 North Fifth St., P.O. Box 189 Gahanna, OH 43230 

Zanesville, OH 43701 

 
Muskingum County, Case No. CT2019-0045 2 

Delaney, J. 

{¶1} Appellant Richard Hargraves appeals from the April 24, 2019 Entry of the 

Muskingum County Court of Common Pleas. Appellee is the state of Ohio. 

FACTS AND PROCEDURAL HISTORY 

{¶1} In October 2018, appellant was convicted of domestic violence against his 

mother in Zanesville Municipal Court Case Number CRB 1801372. Appellant stipulated 

to the prior conviction at trial. 

{¶2} The instant case involves appellant, his sister Kelly Hargraves (“Kelly”), his 

minor niece “Jane Doe,” and his father, Richard Hargraves, Jr. (“Rick”). Doe was age 3 

at the time of these events. In January 2019, appellant, Kelly, and Jane Doe lived 

together in their childhood home on Cliffwood Avenue in Zanesville. Appellant’s mother 

had moved out after the October incident. Kelly frequently complained that appellant had 

an alcohol problem and was belligerent when drunk. The siblings’ parents, although 

divorced, would intervene and offer Kelly and Jane Doe different places to stay when 

appellant caused problems. 

{¶3} On January 8, 2019, Kelly and Jane Doe spent the day together in 

Columbus, arriving home around 10:00 p.m. Kelly noted upon entering the house that 

appellant was “drinking and partying” alone, talking loudly to himself. Kelly asked 

appellant not to bother her and Doe because they were tired and wanted to go to bed. In 

the three-bedroom home, Kelly and Doe each had a bedroom to themselves. The third 

bedroom was used as a walk-in closet. Appellant slept on the couch in the living room. 

This evening, Kelly went into Doe’s room and laid down with her. 
Muskingum County, Case No. CT2019-0045 3 

{¶4} Kelly did not fall asleep because appellant continued to be loud and she 

heard the family’s dogs fighting in the living room. Usually the dogs were kept outside. 

Appellant let the dogs into the house and walked back and forth throughout the house, 

still talking loudly to himself. He threw bottle caps into the bedroom where Kelly and Doe 

were trying to sleep. He stood at the bedroom door, muttering and blowing cigarette 

smoke into the room. He threw chicken bones onto the bedroom floor to encourage the 

dogs to come into the room and disturb Kelly and Doe. Kelly laid with her eyes closed, 

ignoring appellant and telling him to leave them alone. Appellant repeatedly said “Fuck 

you, fuck your baby, I’m going to get rid of you.” 

{¶5} Kelly called her father Rick and told him appellant was drunk, belligerent, 

and bothering her and the baby. Rick said she and the baby were welcome to come to 

his house, but Kelly declined because it was now around 5:00 a.m. and she just wanted 

to sleep. Kelly heard the dogs again in the living room and got up to take one dog outside 

and put the other in the basement. As she did this, appellant stood in the bedroom 

doorway repeating “fuck you and fuck your baby.” Appellant then pushed over a shelf 

onto the bed where the baby lay, and items fell off the shelf onto the bed and floor. Jane 

Doe “yelped” but was not injured. 

{¶6} Kelly called Rick again and told him she intended to call police. She then 

called 911. Appellant overheard the calls and was enraged, calling Kelly a “snitch.” 

Appellant and Kelly fought in the living room. Appellant pushed Kelly and swung at her 

with his left hand, but she blocked the strike. He hit her on the arm with his fist as their 

father came into the house. 
Muskingum County, Case No. CT2019-0045 4 

{¶7} Rick grabbed appellant in a “bear hug” to attempt to stop the fight. At trial, 

Rick was reluctant to testify and minimized the events. Kelly testified appellant jumped 

on the couch and hit their father; Rick testified that he only intervened in the fight and was 

not struck by appellant. Rick had visible injuries to his face which Kelly testified were 

caused by appellant; Rick testified he was scratched by someone’s nail but asserted 

appellant did not cause his injuries. 

{¶8} As Zanesville police arrived, Kelly stood on the sidewalk, Rick on the porch, 

and appellant in the doorway of the residence. The police asked appellant to cooperate; 

when it appeared he wouldn’t, he was taken to the ground and cuffed. Kelly went to the 

Zanesville Police Department several hours later to complete a Domestic Violence 

Complaint Form. 

{¶9} Police officers who responded to the scene testified appellant was highly 

intoxicated and Kelly was very upset. She told them her brother knocked over a shelf 

and fought with their father. Police observed and photographed “fresh injuries” on Rick’s 

face. Appellant refused to voluntarily come away from the doorway of the residence and 

police were afraid he would barricade himself inside, so they took him to the ground and 

cuffed him. Appellant was so intoxicated he had to be physically helped to the police car; 

he was argumentative and it was difficult to understand his slurred speech. At the scene, 

Kelly provided a verbal statement that he stood outside her bedroom throwing items in, 

then came inside the room to pull down a shelf which fell onto Jane Doe. Police observed 

visible injury to Rick but not to Kelly or Jane Doe. They photographed the victims and the 

interior of the residence, including the shelf and disarray in the bedroom. 
Muskingum County, Case No. CT2019-0045 5 

{¶10} Appellant was charged by indictment with three counts of domestic violence 

pursuant to R.C. 2919.25(A), all felonies of the fourth degree. Each count of the 

indictment notes appellant has a prior conviction of domestic violence in October 2018 

and notes the victim of the pertinent offense. Count I relates to Jane Doe, Count II relates 

to Kelly, and Count III relates to Rick. Appellant entered pleas of not guilty. 

{¶11} Appellant orally requested new counsel and the trial court heard the matter 

on March 4, 2019. On March 5, 2019, the trial court overruled appellant’s oral motion and 

ruled that defense trial counsel would remain in place until further order of the court. Cocounsel was appointed on March 14, 2019. 

{¶12} The matter proceeded to trial by jury. Appellant moved for a judgment of 

acquittal pursuant to Crim.R. 29(A) upon the close of appellee’s evidence and at the close 

of all of the evidence; the motions were overruled. Appellant was found guilty upon 

Counts I and II, and not guilty upon Count III. Sentencing was deferred pending a presentence investigation. 

{¶13} A sentencing hearing was held on April 22, 2019 and appellant was 

sentenced to two consecutive prison terms of 18 months each, for a total aggregate 

sentence of 36 months. 

{¶14} Appellant now appeals from the judgment entries of conviction and 

sentence. 

{¶15} Appellant raises five assignments of error: 
Muskingum County, Case No. CT2019-0045 6 

ASSIGNMENTS OF ERROR 

{¶16} “I. HARGRAVES’ CONVICTIONS ARE BASED ON INSUFFICIENT 

EVIDENCE, IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AND 

FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND 

SECTIONS 10 & 16, ARTICLE I OF THE OHIO CONSTITUTION.” 

{¶17} “II. HARGRAVES’ CONVICTIONS ARE AGAINST THE MANIFEST 

WEIGHT OF THE EVIDENCE IN VIOLATION OF THE DUE PROCESS CLAUSE OF 

THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATE 

CONSTITUTION AND SECTIONS 10 & 16, ARTICLE I OF THE OHIO CONSTITUTION.” 

{¶18} “III. THE TRIAL COURT ERRED BY ADMITTING INTO EVIDENCE PRIOR 

BAD ACTS OF HARGRAVES, IN VIOLATION OF HIS DUE PROCESS RIGHTS UNDER 

THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES 

CONSTITUTION AND SECTION SIXTEEN, ARTICLE ONE OF THE OHIO 

CONSTITUTION.” 

{¶19} “IV. THE TRIAL COURT ERRED BY BARRING HARGRAVES FROM 

INTRODUCING EVIDENCE MATERIAL TO HIS DEFENSE, IN VIOLATION OF HIS 

RIGHTS TO DUE PROCESS, UNDER THE FIFTH AND FOURTEENTH AMENDMENTS 

TO THE UNITED STATES CONSTITUTION AND SECTIONS 1 & 16, ARTICLE I OF 

THE OHIO CONSTITUTION, AND HIS RIGHT TO A FAIR TRIAL, AS GUARANTEED 

BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND 

SECTION 16, ARTICLE I OF THE OHIO CONSTITUTION.” 

{¶20} “V. THE TRIAL COURT UNLAWFULLY ORDERED HARGRAVES TO 

SERVE CONSECUTIVE SENTENCES, IN VIOLATION OF HIS RIGHTS TO DUE 
Muskingum County, Case No. CT2019-0045 7 

PROCESS, GUARANTEED BY SECTION 10, ARTICLE I OF THE OHIO 

CONSTITUTION AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE 

UNITED STATES CONSTITUTION.” 

ANALYSIS 

I., II.

{¶21} Appellant’s first two assignments of error are related and will be considered 

together. Appellant argues his domestic violence convictions are not supported by 

sufficient evidence and are against the manifest weight of the evidence. We disagree. 

{¶22} The legal concepts of sufficiency of the evidence and weight of the evidence 

are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380, 

1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review for 

a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio St.3d 

259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio Supreme 

Court held, “An appellate court's function when reviewing the sufficiency of the evidence 

to support a criminal conviction is to examine the evidence admitted at trial to determine 

whether such evidence, if believed, would convince the average mind of the defendant's 

guilt beyond a reasonable doubt. The 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.” 

{¶23} In determining whether a conviction is against the manifest weight of the 

evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the 

entire record, weighs the evidence and all reasonable inferences, considers the credibility 

of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly 
Muskingum County, Case No. CT2019-0045 8 

lost its way and created such a manifest miscarriage of justice that the conviction must 

be overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387. 

Reversing a conviction as being against the manifest weight of the evidence and ordering 

a new trial should be reserved for only the “exceptional case in which the evidence weighs 

heavily against the conviction.” Id.

{¶24} Appellant was found guilty upon two counts of domestic violence pursuant 

to R.C. 2919.25(A), which states, “No person shall knowingly cause or attempt to cause 

physical harm to a family or household member.” Appellant’s conviction upon Count I 

relates to his offense against his niece, Jane Doe, and his conviction upon Count II relates 

to his offense against his sister, Kelly. Appellant was found not guilty upon Count III, 

domestic violence against his father, Rick. 

{¶25} Appellant argues the record is devoid of evidence that he caused or 

attempted to cause physical harm to Jane Doe, the minor child, acknowledging that “[a]t 

most, [appellant] knocked a shelf down on a bed where [Jane Doe] was.” Brief, 5. The 

record includes appellee’s Exhibits 5 and 6, photos of the bedroom including the toppled 

piece of furniture described by witnesses as a “shelf” or a “stand.” The item is a unit of 

three shelves, fallen across the bed, with numerous items scattered underneath. The 

uncontroverted evidence established Jane Doe was laying in the bed when appellant 

pushed the unit over as he repeated “fuck you and fuck your baby.” It is readily apparent 

from the photos that if the unit had fallen upon a 3-year-old on the bed, she could have 

been seriously injured. The jury could reasonably find that in pulling over the shelf, 

appellant attempted to cause physical harm to Jane Doe. 
Muskingum County, Case No. CT2019-0045 9 

{¶26} Appellant further argues there is no evidence he caused or attempted to 

cause physical harm to Kelly. Kelly testified that appellant attempted to strike her twice, 

once making contact with his fist against her arm. The weight of the evidence and the 

credibility of the witnesses are determined by the trier of fact. State v. Yarbrough, 95 Ohio 

St.3d 227, 2002–Ohio–2126, 767 N.E.2d 216, ¶ 79. Moreover, 

the testimony of a single witness, if believed by the trier of fact, is sufficient to support a 

conviction. State v. Cunningham, 105 Ohio St.3d 197, 2004–Ohio–7007, 824 N.E.2d 504, 

at ¶ 51–57. Here, appellee's evidence established appellant attempted to strike Kelly, and 

succeeded. See, State v. Mowls, 5th Dist. Stark No. 2017CA00019, 2017-Ohio-8712, ¶ 

42. 

{¶27} Appellant further points to minor discrepancies in Kelly’s statements in the 

911 call, to police at the scene, in her Domestic Violence Victim Statement, and at trial. 

As we observed in State v. Frank, 5th Dist. No. CT2017-0102, 2018-Ohio-5148, 127 

N.E.3d 363, at ¶ 47, any inconsistencies in the witnesses' accounts were for the trial court 

to resolve. Id., citing State v. Dotson, 5th Dist. Stark No. 2016CA00199, 2017-Ohio-5565, 

2017 WL 2815197, ¶ 49. Inconsistencies in the testimony do not establish appellant's 

conviction is against the manifest weight of the evidence. Dotson, supra, 2017-Ohio5565, at ¶ 50. “The weight of the evidence concerns the inclination of the greater amount 

of credible evidence offered in a trial to support one side of the issue rather than the 

other.” State v. Brindley, 10th Dist. Franklin No. 01AP-926, 2002-Ohio-2425, 2002 WL 

1013033, ¶ 16. We defer to the trier of fact as to the weight to be given the evidence and 

the credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 

(1967), at paragraph one of the syllabus. When assessing witness credibility, “[t]he choice 
Muskingum County, Case No. CT2019-0045 10 

between credible witnesses and their conflicting testimony rests solely with the finder of 

fact and an appellate court may not substitute its own judgment for that of the finder of 

fact.” State v. Awan, 22 Ohio St.3d 120, 123, 489 N.E.2d 277 (1986). “Indeed, the 

factfinder is free to believe all, part, or none of the testimony of each witness appearing 

before it.” State v. Pizzulo, 11th Dist. Trumbull No. 2009-T-0105, 2010-Ohio-2048, 2010 

WL 1839440, ¶ 11. Furthermore, if the evidence is susceptible to more than one 

interpretation, a reviewing court must interpret it in a manner consistent with the 

verdict. Id.

{¶28} Upon our review of the entire record, we conclude appellant’s domestic 

violence convictions are supported by sufficient evidence and are not against the manifest 

weight of the evidence. Appellant's first and second assignments of error are overruled. 

III. 

{¶29} In his third assignment of error, appellant argues the trial court erred in 

admitting other-acts evidence of his assaults upon two inmates at the jail. We disagree. 

{¶30} Ptl. William Baron was appellee’s first trial witness. Baron testified that due 

to appellant’s intoxication and argumentativeness, he was arrested and taken to jail within 

minutes of the arrival of police to the scene. The prosecutor then asked, “What happened 

at the jail,” and defense trial counsel objected. The trial court overruled the objection and 

Baron testified appellant was booked into jail. The prosecutor continued, “Then what?” 

and defense trial counsel objected again. The objection was overruled. Baron testified 

appellant was placed in a holding cell with two other inmates who were asleep due to the 

early-morning hour. Appellant entered the cell and began punching the two inmates with 

his fists almost immediately, unprovoked. 
Muskingum County, Case No. CT2019-0045 11 

{¶31} Appellant argues admission of this evidence violates Evid.R. 404(B), which 

states, “Evidence of other crimes, wrongs, or acts is not admissible to prove the character 

of a person in order to show action in conformity therewith. It may, however, be admissible 

for other purposes, such as proof of motive, opportunity, intent, preparation, plan, 

knowledge, identity, or absence of mistake or accident.” 

{¶32} As with any other type of evidence, admission of “other acts” testimony must 

not only meet the prerequisites of Evid.R. 404(B), but it must also meet the prerequisites 

of Evid.R. 403(A) which requires the exclusion of relevant evidence if its “probative value 

is substantially outweighed by the danger of unfair prejudice.” 

{¶33} “Trial court decisions regarding the admissibility of other-acts evidence 

under Evid.R. 404(B) are evidentiary determinations that rest within the sound discretion 

of the trial court. Appeals of such decisions are considered by an appellate court under 

an abuse-of-discretion standard of review.” State v. Morris, 132 Ohio St.3d 337, 2012-

Ohio-2407, 972 N.E.2d 528, syllabus. 

{¶34} The Ohio Supreme Court established a “three-step analysis” for trial courts 

considering the admission of other-acts evidence under Evidence Rule 404(B): 

 The first step is to consider whether the other acts evidence 

is relevant to making any fact that is of consequence to the 

determination of the action more or less probable than it would be 

without the evidence. Evid.R. 401. The next step is to consider

whether evidence of the other crimes, wrongs, or acts is presented 

to prove the character of the accused in order to show activity in 

conformity therewith or whether the other acts evidence is presented 
Muskingum County, Case No. CT2019-0045 12 

for a legitimate purpose, such as those stated in Evid.R. 404(B). The 

third step is to consider whether the probative value of the other acts 

evidence is substantially outweighed by the danger of unfair 

prejudice. See Evid.R 403. 

 State v. Williams, 2012-Ohio-5695, ¶ 19-20, 134 Ohio St.3d 

521, 983 N.E.2d 1278. 

{¶35} In the instant case, appellant argues evidence of his attack on inmates at 

the jail is irrelevant to the domestic violence offenses and tended to show he acted in 

conformity with a propensity to commit violence. Appellee argued at trial, and responds 

on appeal, that the evidence was relevant to appellant’s state of mind in the immediate 

aftermath of the domestic violence incident, demonstrating appellant was intoxicated and 

combative. While the jail evidence was superfluous in light of the witnesses’ consistent 

testimony about appellant’s level of intoxication, it rebutted appellant’s argument at trial 

that Kelly exaggerated the extent of appellant’s actions and belied appellant’s claims that 

he was merely “causing trouble” and a nuisance. 

{¶36} We further conclude that even if the challenged testimony about events at 

the jail violated Evid.R. 404(B), the error was harmless. The Supreme Court has stated 

that “the real issue when Evid.R. 404(B) evidence is improperly admitted at trial is whether 

a defendant has suffered any prejudice as a result. If not, the error may be disregarded 

as harmless error. And while courts may determine prejudice in a number of ways and 

use language that may differ, they focus on both the impact that the offending evidence 

had on the verdict and the strength of the remaining evidence.” State v. Morris, 141 Ohio 

St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, ¶ 25. In this case, appellee’s evidence of 
Muskingum County, Case No. CT2019-0045 13 

the domestic violence was overwhelming, including testimony of Kelly, her father, and 

responding officers, and photos of the damage and injuries inflicted by appellant. We find 

that any unduly prejudicial effect from the challenged testimony “would have been 

marginal” in light of the strength of appellee’s evidence. See, State v. Barnett, 10th Dist. 

Franklin No. 19AP-365, 2020-Ohio-1468, ¶ 42. 

{¶37} The trial court did not err in overruling appellant’s objection to the jail 

evidence. Appellant’s third assignment of error is overruled. 

IV. 

{¶38} In his fourth assignment of error, appellant argues the trial court erred in 

disallowing evidence pertinent to his defense. We disagree. 

{¶39} Decisions regarding the admissibility of evidence at trial are within the broad 

discretion of the trial court and will be upheld absent an abuse of discretion and material 

prejudice. State v. Lang, 129 Ohio St.3d 512, 2011–Ohio–4215, 954 N.E.2d 596, ¶ 86. 

{¶40} At trial, appellant sought to admit Defendant’s Exhibit E, the Ohio Uniform 

Incident Report (police report) about the incident. The exhibit does not contain any written 

statements. We have reviewed the exhibit and it is cursory at best. The report identifies 

the time, date, location, and persons involved, and the narrative simply states: “On the 

above, date, time and location a known person did: cause or attempt to cause physical 

harm to a family or household member. Resist the lawful arrest of his person.” (Sic

throughout). In the report’s description of Kelly, the box labeled “If injured; state injuries,” 

indicates “none.” Appellant sought to admit Exhibit E as evidence of Kelly’s alleged 

inconsistent statements, apparently that she did not tell police she was injured by 

appellant. The trial court declined to admit the report because there was no evidence 
Muskingum County, Case No. CT2019-0045 14 

Kelly reviewed the police report, to what extent she contributed to it, or that she ever saw 

it. T. 352-353. 

{¶41} On appeal, appellant argues the trial court’s decision interfered with his right 

to present a complete defense because Exhibit E “denotes that Kelly indicated no injuries 

from the incident with [appellant].” We agree with the trial court’s decision and find no 

indication in the record that Kelly wrote or reviewed the material contained in Defense 

Exhibit E, thus the exhibit is not properly evidence of any “inconsistent statement.” 

{¶42} Appellant’s fourth assignment of error is overruled. 

V. 

{¶43} In his fifth assignment of error, appellant argues the trial court erred in 

imposing consecutive sentences. We disagree. 

{¶44} Appellant was convicted upon two counts of domestic violence in Counts I 

and II, both felonies of the fourth degree. The trial court imposed consecutive prison 

terms of 18 months each. “[A]ppellate courts must adhere to the plain language of R.C. 

2953.08(G)(2).” State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002, 59 N.E.3d 1231, 

¶ 7. An appellate court may only modify or vacate a sentence if it finds by clear and 

convincing evidence that the record does not support the sentencing court's 

decision. Id. at ¶ 23. Clear and convincing evidence is that “‘which will produce in the 

mind of the trier of facts a firm belief or conviction as to the facts sought to be 

established.’” State v. Silknitter, 3rd Dist. Union No. 14–16–07, 2017–Ohio–327, ¶ 7, 

citing Marcum, supra. Clear and convincing evidence is that measure or degree of proof 

which is more than a mere “preponderance of the evidence,” but does not require the 
Muskingum County, Case No. CT2019-0045 15 

certainty of “beyond a reasonable doubt.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 

118 (1954), paragraph three of the syllabus. 

{¶45} In the instant case, appellant argues the trial court erred in imposing 

consecutive terms because the prison terms are disproportionate to the harm suffered by 

Kelly and Jane Doe. Appellant implicitly argues the victims were not injured, therefore he 

should not serve consecutive terms. We note appellant does not argue that the trial court 

failed to make the proper findings; instead, he disagrees with the weight afforded to those 

findings. “In order to impose consecutive terms of imprisonment, a trial court is required 

to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and 

incorporate its findings into its sentencing entry, but it has no obligation to state reasons 

to support its findings.” State v. Bonnell, 140 Ohio St.3d 209, 16 N.E.3d 659, 2014-Ohio3177, syllabus. 

{¶46} In Ohio, there is a statutory presumption in favor of concurrent sentences 

for most felony offenses. R.C. 2929.41(A). The trial court may overcome this presumption 

by making the statutory, enumerated findings set forth in R.C. 2929.14(C)(4). State v. 

Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 23. R.C. 2929.14(C)(4) 

concerns the imposition of consecutive sentences and provides: 

If multiple prison terms are imposed on an offender for 

convictions of multiple offenses, the court may require the offender 

to serve the prison terms consecutively if the court finds that the 

consecutive service is necessary to protect the public from future 

crime or to punish the offender and that consecutive sentences are 

not disproportionate to the seriousness of the offender's conduct and 
Muskingum County, Case No. CT2019-0045 16 

to the danger the offender poses to the public, and if the court also 

finds any of the following: 

(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. 

{¶47} In this case, the record does establish, and appellant admits, that the trial 

court made the findings required by R.C. 2929.14(C)(4) at the time it 

imposed consecutive sentences. 

{¶48} We also note that in the sentencing entry, the trial court found 

that consecutive sentences are necessary to protect the public from future crime or to 

punish the offender; are not disproportionate to appellant's conduct and to the danger he 

poses to the public; and at least two of the multiple offenses were committed as part of 
Muskingum County, Case No. CT2019-0045 17 

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

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 would adequately reflect the seriousness of 

appellant's conduct. 

{¶49} Upon imposing the consecutive terms, the trial court noted appellant has a 

prior felony conviction for which he served a prison term. The instant offenses occurred 

in January 2019, after appellant had very recently been convicted of domestic violence in 

October 2018 against his mother. The instant offenses were committed against 

appellant’s sister and his three-year-old niece. In the October case, appellant was put on 

probation but violated almost immediately and was sent to jail for 50 days. Appellant also 

had a lengthy history of misdemeanor convictions including resisting arrest, assault, and 

criminal damaging. 

{¶50} Based on our review, we find that the record demonstrates that the trial 

court made the requisite findings. The sentence was within the statutory range. Moreover, 

the record reveals that the trial court properly considered the statutory purposes and 

factors of felony sentencing, and the decision is supported by clear and convincing 

evidence. Accordingly, we find that the trial court did not err in the imposition of appellant's 

prison sentence, including imposition of consecutive terms, and did not fail to consider 

the statutory factors. 

{¶51} Appellant’s fifth assignment of error is overruled. 
Muskingum County, Case No. CT2019-0045 18 

CONCLUSION 

{¶52} Appellant’s five assignments of error are overruled and the judgment of the 

Muskingum County Court of Common Pleas is affirmed. 

By: Delaney, J., 

Hoffman, P.J. and 

Gwin, J., concur. 

 
Muskingum County, Case No. CT2019-0045 19 

Hoffman, P.J., concurring 

{¶53} I concur in the majority’s analysis and disposition of Appellant’s first, 

second, fourth, and fifth assignments of error. I further concur in the majority’s disposition 

of Appellant’s third assignment of error, but only partially concur with its analysis. 

{¶54} The majority apparently concludes the other acts evidence regarding 

Appellant’s assault of inmates at the jail was permissible to rebut Appellant’s argument 

Kelly exaggerated the extent of Appellant’s actions and his claim he was merely “causing 

trouble” and a nuisance. (See Maj. Op. at ¶35). Unlike the majority, I find this was 

impermissible other acts evidence. 

{¶55} However, I agree with the majority admission of the testimony about events 

at the jail constituted harmless error. Accordingly, I concur in its decision to overrule 

Appellant’s third assignment of error.