State v. Kinsworthy , 2014 Ohio 1584 ( 2014 )

[Cite as State v. Kinsworthy, 2014-Ohio-1584.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2013-06-053
: OPINION
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:
JOSEPH D. KINSWORTHY, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
Case No. 2012 CR 28221
David P. Fornshell, Warren County Prosecuting Attorney, Michael Greer, 500 Justice Drive,
Lebanon, Ohio 45036, for plaintiff-appellee
James S. Arnold, 9737 Loveland-Madeira Road, Loveland, Ohio 45140 and The Farrish Law
Firm, Michaela M. Stagnaro, 810 Sycamore Street, 6th Floor, Cincinnati, Ohio 45202, for
defendant-appellant
HENDRICKSON, P.J.
{¶ 1} Defendant-appellant, Joseph D. Kinsworthy, appeals from his conviction and
sentence in the Warren County Court of Common Pleas for menacing by stalking and
burglary.
{¶ 2} On May 25, 2012, a Warren County grand jury indicted Kinsworthy on the
following four counts: (1) domestic violence, in violation of R.C. 2919.25(A); (2) menacing by
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stalking, in violation of R.C. 2903.211(A)(1); (3) burglary, in violation of R.C. 2911.12(A)(2);
and (4) criminal damaging, in violation of R.C. 2906.06(A)(1). These charges arose out of a
series of events involving Kinsworthy and Katy Wall, Kinsworthy's former girlfriend and the
mother of his son. The events took place over a period of three months in March and May
2012.
{¶ 3} Kinsworthy, an Iraq veteran who suffers from Post-Traumatic Stress Disorder
(PTSD) and has a traumatic brain injury, began his relationship with Wall in June 2009. One
child was born out of the relationship. Kinsworthy and Wall lived together on and off again
over the years. Kinsworthy first moved into Walls' condominium in December 2009 and
stayed for three to four months. On March 28, 2010, Kinsworthy committed an act of
domestic violence against Wall, and he ultimately pled guilty to that offense. After this
incident, Kinsworthy moved out. However, in January 2011, just a few months after the birth
of their son, Kinsworthy returned and again resided with Wall. Kinsworthy stayed for
approximately three months until March 2011, when the relationship once again ended. After
the relationship ended, Wall had the locks changed at her condominium. Although the
relationship was over, the two remained in contact for their "son's sake." In November 2011,
Kinsworthy began coming around more often and the two spoke about resuming their
relationship. In March 2012, Kinsworthy began staying overnight with Wall and their son.
{¶ 4} On March 24, 2012, Kinsworthy and Wall got into an argument which increased
in intensity as the day progressed. When Kinsworthy left the condominium, he punched a
hole in the wall and threw open the front door with such force that it also put a hole in the wall
behind the door. On that same day, the two also exchanged text messages, and in one of
these messages Kinsworthy threatened to kill himself.
{¶ 5} The next day, March 25, 2012, Wall and her son went to see Kinsworthy at a
friend's house. Wall brought Kinsworthy's belongings with her as she decided he could no
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longer stay with them at the condominium. According to Wall, when Kinsworthy saw his
belongings, he became extremely angry, and began yelling and cursing at her. While Wall
attempted to leave, Kinsworthy kicked the rear, side quarter panel of her car. Their son was
inside the car at the time and he started screaming. Ultimately, Wall was able to leave her
friend's house and return to her condominium. Later that day, the two again exchanged text
messages describing the events that had taken place that day. In one message, Kinsworthy
stated: "I can promise you one thing though, NO MAN is going to be happy with you as long
as im [sic] still breathing[.]" After receiving this message, Wall became scared and did not
feel safe to stay at her condominium. She took her son and stayed with her parents.
{¶ 6} Based on this incident, Wall filed an application for a civil protection order
(CPO) against Kinsworthy. At the preliminary hearing on April 11, 2012, Kinsworthy's
visitation rights were temporarily suspended until the day of the full hearing. On May 24,
2012, the court held a full hearing and a CPO was issued against Kinsworthy, protecting Wall
and her son for five years.
{¶ 7} Wall also filed a police report with the Hamilton Township Police Department
regarding the damage to her car that resulted from Kinsworthy kicking the side panel of the
vehicle. Photographs were taken of the damage.
{¶ 8} On the morning of April 12, 2012, just one day after Kinsworthy's visitation
rights were temporarily suspended, Wall discovered that someone had smashed her car's
windshield. Wall reported the incident to police. When interviewed by the police, Wall stated
she believed that it was Kinsworthy who had damaged the vehicle.
{¶ 9} Just days later, on April 20, 2012, Wall returned to her condominium around
3:00 p.m. and discovered someone had broken into her residence. A key had been broken
off in the door's lock, the door frame was broken, and parts of the lock were on the floor.
Wall contacted the Hamilton Township Police Department and reported a burglary. Two
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officers, including Officer Darcy Workmen, responded to the scene. The officers entered the
condominium first and discovered Wall's dog was dead. Wall then entered the residence to
inspect the damage. After surveying the damage, Wall informed the officers that three pairs
of sunglasses were missing, the straps of a purse had been removed, the sheets, pillow, and
clothing on her bed were wet and smelled like urine, there were small drops of blood on the
sheet, and jewelry given to her by Kinsworthy was missing. Other expensive jewelry had not
been taken. In addition, a photograph of her son was missing and the screen of a television
that she and Kinsworthy purchased had been smashed. Wall indicated to the officers that
she believed it was Kinsworthy who was the perpetrator.
{¶ 10} Thereafter, Kinworthy was indicted on the above four charges. A jury trial was
held in September 2012. The jury convicted Kinsworthy of criminal damaging and found him
not guilty of domestic violence and second-degree burglary. The jury indicated it was hung
as to the lesser-included burglary with the purpose to commit any criminal offense, a third-
degree felony, and the menacing by stalking offense.
{¶ 11} A second jury trial was held as to these two offenses on March 1, 2013. After
hearing the evidence, the jury found Kinsworthy guilty on both offenses. The trial court
sentenced Kinsowrthy to serve nine months in prison for menacing by stalking, a fourth-
degree felony and 18 months in prison for burglary, a third-degree felony. The two prison
terms were ordered to be served consecutively, for a total prison term of 27 months.
{¶ 12} Kinsworthy appeals both his convictions and sentence, raising five assignments
1
of error for our review.
{¶ 13} Assignment of Error No. 1:
{¶ 14} THE TRIAL COURT ERRED AS A MATTER OF LAW BY PERMITTING
1. The present appeal is limited only to the second trial and the resulting convictions for menacing by stalking
and burglary. Kinsworthy did not appeal his conviction for criminal damaging.
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OTHER ACTS TESTIMONY INTO EVIDENCE THUS PREJUDICING APPELLANT'S RIGHT
TO A FAIR TRIAL.
{¶ 15} In his first assignment of error, Kinsworthy argues he was denied a fair trial due
to the admission of improper character evidence and improper prior bad acts evidence.
Kinsworthy asserts the trial court erred in admitting the testimony regarding: (1) his prior
incarceration; (2) his threats to commit suicide; (3) threats he made to kill his mother, Marcia
Kinsworthy, and a correctional officer; (4) his behavior of breaking Wall's possessions and
punching holes in her walls during arguments; and (5) his alcohol use and alcohol-related
convictions. Kinsworthy contends this evidence did not prove that he had a history of
violence towards Wall, as required for a menacing by stalking conviction. Rather, he asserts
that such testimony was elicited as improper character evidence to show he was an "unstable
alcoholic, with a propensity for violence."
{¶ 16} The testimony Kinsworthy now challenges on appeal was provided by several
witnesses, including Wall, Marcia Kinsworthy, and Kinsworthy himself.2 No objection was
ever raised as to any of the testimony in question. Generally, this court will not reverse a trial
court's decision regarding the admission of evidence absent an abuse of discretion. State v.
Freeze, 12th Dist. Butler No. CA2011-11-209, 2012-Ohio-5840, ¶ 43, citing State v. Perez,
124 Ohio St.3d 122, 2009-Ohio-6179, ¶ 96. However, when a party fails to object to the
issue now appealed, we review for plain error. Crim.R. 52(B); State v. Lang, 129 Ohio St.3d
512, 2011-Ohio-4215, ¶ 108. An alleged error constitutes plain error only if the error is
obvious and but for the error, the outcome of the trial clearly would have been different.
State v. Blankenburg, 197 Ohio App.3d 201, 2012-Ohio-1289, ¶ 53 (12th Dist.), citing Lang at
2. In fact, Kinsworthy testified to much of the disputed evidence, including his alcohol use, his prior threats to
commit suicide, threats against his mother, his prior incarceration, and that he had broken items during
arguments in the past.
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¶ 108. Notice of plain error is to be taken with utmost caution and should be invoked only to
prevent a clear miscarriage of justice. Id. A finding of harmless error, however, is
appropriate where there is "overwhelming evidence of guilt" or "some other indicia that the
error did not contribute to the conviction." State v. Sims, 12th Dist. Butler No. CA2007-11-
300, 2009-Ohio-550, ¶ 34, quoting State v. Ferguson, 5 Ohio St.3d 160, 166 (1983), fn. 5.
{¶ 17} Pursuant to Evid.R. 404(B), evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show that a person acted in
conformity therewith on a particular occasion. Evid.R. 404(B); State v. Hart, 12th Dist.
Warren No. CA2008-06-079, 2009-Ohio-997, ¶ 11. Such evidence, often called "other acts"
evidence, is permitted for other purposes, however, including proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake or accident. Evid.R.
404(B); Hart at ¶ 11; State v. Walker, 12th Dist. Butler No. CA2006-04-085, 2007-Ohio-911, ¶
11. In addition, other acts evidence may also be permissible where the other acts "form part
of the immediate background of the alleged act which forms the foundation of the crime
charged in the indictment." State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, ¶ 13,
quoting State v. Curry, 43 Ohio St.2d 66, 73 (1975). "Evidence of other crimes may be
presented when 'they are so blended or connected with the one on trial as that proof of one
incidentally involves the other; or explains the circumstances thereof; or tends to logically
prove any element of the crime alleged.'" State v. Waters, 12th Dist. Butler No. CA2002-11-
266, 2003-Ohio-5871, ¶ 15.
{¶ 18} Even if the evidence meets the prerequisites of Evid.R. 404(B) it may still be
excluded under Evid.R. 403(A) if its probative value is substantially outweighed by the danger
of unfair prejudice, confusing the issues, or misleading the jury. State v. Thomas, 12th Dist.
Butler No. CA2012-11-223, 2013-Ohio-4327, ¶ 22. Logically, all evidence which the
prosecutor presents is prejudicial to the defendant; it is only the evidence which unfairly
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prejudices the defendant that is prohibited by Evid.R. 403(A). Thomas at ¶ 23. "Unfairly
prejudicial evidence is that which might result in an improper basis for a jury decision." Id.{¶ 19} In prosecutions for menacing by stalking, the victim's belief that the defendant
will cause physical harm is an element of the offense and such belief is often intertwined with
their past interactions. Hart at ¶ 12. Accordingly, prior acts of violence between the victim
and defendant are "relevant and highly probative in establishing the victim's belief of
impending serious harm," and are particularly important in proving the crime of menacing by
stalking. Id., quoting State v. Skeens, 2d Dist. Montgomery No. 17528, 1999 WL 1082658, *
4 (Dec. 3, 1999). Furthermore, this court has noted, "[o]ther acts evidence can be
particularly useful in prosecutions for menacing by stalking because it can assist the jury in
understanding that a defendant's otherwise innocent appearing acts, when put into the
context of previous contacts he has had with the victim, may be knowing attempts to cause
mental distress." Hart at ¶ 12.
{¶ 20} In the present case, the record indicates the state sought to prove Kinsworthy
committed felony menacing by stalking. In order to prove menacing by stalking, the state
was required to show that Kinsworthy, by engaging in a pattern of conduct knowingly caused
Wall to believe that he would cause her physical harm or cause her mental distress. See
R.C. 2903.211(A)(1). To elevate the offense to a fourth-degree felony, the state was
required to prove there was a "history of violence" against Wall or any other person. See
R.C. 2903.211(B)(2)(e) ("Menacing by stalking is a felony in the fourth degree if * * * the
offender has a history of violence toward the victim or any other person or a history of violent
acts toward the victim or any other person").
{¶ 21} The record indicates that Wall was aware Kinsworthy had threatened to kill a
correctional officer and had threatened to commit suicide in the past. Accordingly, the
testimony regarding Kinsworthy's frequent threats to commit suicide as well as his threats to
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kill a correctional officer were relevant and probative in proving the essential elements of the
menacing by stalking charge. In particular, this evidence was relevant in proving Wall
believed Kinsworthy would cause her physical harm, or in the alternative, that Kinsworthy
knew he caused Wall mental distress.
{¶ 22} We similarly find the trial court did not err in admitting into evidence testimony
regarding Kinsworthy's 2010 domestic violence conviction and his resulting incarceration. As
the state was required to prove there was a "history of violence" against Wall, the fact that
Kinsworthy committed an act of domestic violence against Wall just two years prior was
relevant and probative in proving an essential element of the felony offense.3
{¶ 23} We also find Wall's testimony that Kinsworthy had broken some of her
belongings and punched holes in her wall during prior arguments relevant and probative in
proving the menacing by stalking charge, namely Wall's belief of impending serious harm.
This testimony also put the past interactions between Wall and Kinsworthy into context for
the jury. See Hart at ¶ 12. Based on the foregoing, the trial court did not err, let alone
committed plain error, in admitting evidence as to Kinsworthy's prior incarceration, threats of
suicide, threats against a correctional officer, and prior instances where he broke items and
bunched holes in the walls of Wall's condominium.
{¶ 24} We also note that this character evidence and "other acts" evidence Kinsworthy
asserts the trial court erred in admitting at trial was the same evidence and testimony that he
himself participated in eliciting from the witnesses. For instance, during cross-examination of
Wall, defense counsel asked: "I want to direct your attention to the 2010 domestic violence
incident. Do you recall being present for the sentencing at Warren County Court?" Later, he
3. Further, we find no error in the trial court's failure to provide the jury with a limiting instruction that the
evidence could only be used to find a "history of violence" against Wall and not to prove that Kinsworthy acted in
conformity with his prior bad acts. Kinsworthy did not object to the testimony and did not ask for such a limiting
instruction. Therefore, he has waived all but plain error. Because we cannot say that, but for the claimed error,
the outcome of the trial clearly would have been otherwise, we find no plain error.
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also asked: "All right, [sic] so following his release from incarceration you drove him to that
program?" In addition, defense counsel asked Wall to explain the contents of the letter in
which Kinsworthy threatened to kill a correctional officer. Kinsworthy also confirmed during
direct examination that he would "break things" during arguments between himself and Wall.
Kinsworthy cannot, on appeal, complain that the trial court erred in permitting the admission
of prejudicial testimony which he elicited from the witnesses. See State v. Williams, 12th
Dist. Butler No. CA2006-03-067, 2007-Ohio-2699, ¶ 27.
{¶ 25} The remaining evidence Kinsworthy challenges as being improper character
evidence, including evidence regarding Kinsworthy's prior threats to kill his mother, his
alcohol use, and related alcohol convictions, present a different issue as arguably none of
this evidence was relevant in proving either of the two offenses at the second trial. As to
Kinsworthy's alcohol use, there is no indication in the record that Kinsworthy was intoxicated
at the time of any of the events which gave rise to these charges. See Morris at ¶ 13.
Although Wall and Marcia each testified he was more violent and unstable when he was
under the influence of alcohol, because there was no testimony that he was intoxicated at the
time of the offenses, evidence of Kinsworthy's alcohol use was not relevant in proving any of
the offenses. Similarly, any prior alcohol-related convictions would also not be relevant. In
addition, the fact that Kinsworthy previously threatened his mother was not relevant in
proving menacing by stalking as there is no indication that the victim, Wall, was aware of this
threat, and therefore it could not have contributed to Wall's belief that Kinsworthy would
cause her physical harm.
{¶ 26} Although the foregoing evidence had questionable relevancy to the case at bar,
a review of the record indicates Kinsworthy did not object this evidence when first introduced
by the state. Moreover, Kinsworthy repeatedly participated in eliciting this same evidence.
For example, after the state questioned Marcia regarding Kinsworthy's prior threats to kill her,
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Kinsworthy on re-direct examination, questioned her further regarding these threats:
Q. Did you actually believe that [Kinsworthy] was going to kill
you?
A. Heavens no.
Q. And has Joe ever raised his hand to you or struck you or
hit you?
A. Never.
Q. Whether [sic] he made these statements to you about
killing you when were those relative to when he returned
home from Iraq?
A. It started probably after he came out of his coma and
came home * * *[his sergeants told me] that's how they
pump them up. They teach them that.
{¶ 27} On direct examination, Kinsworthy also repeatedly referred to his struggles with
alcohol. For instance, counsel asked: "Since your return from active duty have you struggled
with alcohol?" Kinsworthy explained:
Yes, that's part of my disability. When I came home * * *, I had
gone so untreated that I was medicating myself with alcohol and
the diagnosis that the VA in the military gave me was
posttraumatic stress disorder with alcohol dependence because *
* * that was my medication. I'd use that to kind of get away.
Additionally, the record indicates that Kinsworthy offered the evidence of his alcohol-related
convictions. During direct examination, Kinsworthy referred to a prior driving under the
influence conviction that had not been previously mentioned by the state's witnesses.
{¶ 28} From this court's review of the record, it appears Kinsworthy's defense centered
on his PTSD diagnosis and his resulting alcohol dependence. Kinsworthy sought to paint a
picture that he often threatened those around him with violence, but that they knew these
threats were empty and were just a result of his alcohol use and PTSD. In so doing, he put
his character squarely at issue and repeatedly elicited testimony regarding his problems with
alcohol and his prior threats of violence towards other people. It is apparent that presenting
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this evidence was used to bolster his defense. Accordingly, we fail to see any prejudice that
he suffered in procuring such testimony. As Kinsworthy provided much of this testimony and
also participated in eliciting the same evidence from other witnesses, any error in the
admission of this evidence was invited error, and he may not now take advantage of such
error on appeal. See Williams, 2007-Ohio-2699 at ¶ 27 ("The rule of invited error prohibits a
party who induces error in the trial court from taking advantage of such error on appeal").
{¶ 29} Even if this court assumed the trial court erred in admitting evidence of
Kinsworthy's alcohol use, related alcohol convictions, and his threats to kill his mother, such
error would be harmless. In light of the overwhelming amount of other evidence supporting
his conviction for menacing by stalking, the outcome of the trial would not have been different
absent this evidence. As discussed more fully below, Wall testified regarding the couple's
tumultuous and often violent history towards one another. In March 2012, Kinsworthy's
pattern of conduct, which included threats via text messages indicating Kinsworthy would kill
Wall and destroy many of her personal belongings, along with his later conduct of damaging
her vehicle, all culminated in Wall believing Kinsworthy would harm her. Furthermore, based
on the history of their relationship, Kinsworthy was aware that his actions would cause her
such fear or mental distress.
{¶ 30} For the reasons discussed above, Kinsworthy's first assignment of error is
overruled.
{¶ 31} Assignment of Error No. 2:
{¶ 32} THE TRIAL COURT ERRED BY ALLOWING IMPROPER REBUTTAL
TESTIMONY WHICH VIOLATED [KINSWORTHY'S] RIGHT TO A FAIR TRIAL.
{¶ 33} In his second assignment of error, Kinsworthy asserts the trial court erred in
allowing Officer Downs to testify as a rebuttal witness for the state. Kinsworthy maintains
Downs' testimony was inadmissible as his testimony constituted hearsay under Evid.R. 801,
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and furthermore, the testimony violated Evid.R. 404(B) as impermissible character evidence.
{¶ 34} At trial, Kinsworthy called Marcia Kinsworthy, to the stand. During her
testimony, Marcia testified she had been contacted by the police "a couple of times" in
regards to her son. On cross-examination, the state engaged in a series of questions
regarding statements Marcia made about her son to police in May 2012. The state asked
whether she had told officers that Kinsworthy "had changed tremendously since returning
home [from deployment] and that his temper was so short he was unable to carry on a
normal life." Marcia denied making that specific statement, but testified she told the officers
she wanted Kinsworthy to get help and live a normal life. The state also asked Marcia
whether she had told officers that Kinsworthy was "unpredictable and very capable of causing
great harm to others." Marcia denied making that statement.
{¶ 35} On rebuttal, the state attempted to refute Marcia's testimony by presenting the
testimony of Officer Downs, who had been present during this conversation. Downs testified
Marcia stated Kinsworthy's "temper was so short he's unable to carry on a normal life." He
further testified that Marcia indicated that she was worried Kinsworthy "may harm somebody
else as well or possibly kill them."
{¶ 36} As an initial matter, we note that Kinsworthy failed to object to Officer Downs'
rebuttal testimony. Thus, he has waived all but plain error. See State v. Gray, 12th Dist.
Butler No. CA2010-03-064, 2011-Ohio-666, ¶ 56; Lang, 2011-Ohio-4215 at ¶ 108.
{¶ 37} Even if this court assumed Downs' testimony was inadmissible under Evid.R.
801 and Evid.R. 404(B), we find that any error in admitting such evidence does not rise to the
level of plain error. The substance of Downs' testimony, i.e. that Kinsworthy had a short
temper and had been unable to resume his normal life upon returning from Iraq, had already
been presented to the jury. Kinsworthy himself provided similar testimony. During direct
examination, Kinsworthy testified that upon returning from Iraq he suffered from PTSD which
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led to his dependence on alcohol. He further stated that he had shared his PTSD and
alcohol dependence diagnosis with Wall as they often talked about how he could "get this
under control and live a normal life." He also admitted he had an "anger" issue. The only
new matter that was potentially damaging to Kinsworthy was Downs' testimony that
Kinsworthy's mother had concerns that he may harm other people. However, the admission
of such evidence was not prejudicial given the overwhelming evidence adduced at trial which
supported his convictions for menacing by stalking and burglary. Accordingly, we cannot say
Downs' testimony contributed to his convictions.
{¶ 38} Kinsworthy's second assignment of error is, therefore, overruled.
{¶ 39} Assignment of Error No. 3:
{¶ 40} APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN
VIOLATION OF [HIS] CONSTITUTIONAL RIGHTS THUS PREJUDICING [HIS] RIGHT TO A
FAIR TRIAL.
{¶ 41} In his third assignment of error, Kinsworthy asserts he received ineffective
assistance of trial counsel. Kinsworthy asserts his trial counsel committed an array of errors
which "significantly prejudiced" him. Specifically, Kinsworthy claims counsel was ineffective
in the following ways: (1) counsel failed to mention he had an alibi during opening
statements; (2) in his opening statements, counsel stated, Kinsworthy "appeared guilty"; (3)
counsel failed to object to certain testimony, including "other acts" evidence, rebuttal
testimony of Officer Downs, Wall's testimony comparing Kinsworthy to a serial killer, and
Officer Workmen and Wall's belief that he was the perpetrator of the burglary; and (4)
counsel asked Wall and Kinsworthy "damaging" questions. Kinsworthy asserts the following
questions were "damaging": (1) asking Kinsworthy whether he threatened to kill Wall; (2)
asking Wall about the letter Kinsworthy wrote in which he threatened a correctional officer;
(3) confirming there was no footprint on Wall's car door when she left her home the day of
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the burglary; (4) confirming Kinsworthy threatened to damage Wall's personal property; and
(5) confirming Kinsworthy tended to urinate on things when he was intoxicated. Kinsworthy
contends that the culmination of all of these errors by trial counsel significantly prejudiced
him.
{¶ 42} To prevail on an ineffective assistance of counsel claim, Kinsworthy must show
trial counsel's performance fell below an objective standard of reasonableness and he was
prejudiced as a result. State v. Ward-Douglas, 12th Dist. Warren No. CA2011-05-042, 2012-
Ohio-4023, ¶ 96, citing Strickland v. Washington, 466 U.S. 668, 687-688, 693, 104 S.Ct.
2052 (1984); State v. Burke, 97 Ohio St.3d 55, 2002-Ohio-5310, ¶ 6. In order to demonstrate
prejudice, Kinsworthy must establish that, but for counsel's errors, there is a reasonable
probability that the result of trial would have been different; a "reasonable probability" is a
probability sufficient to undermine confidence in the outcome. Burke at ¶ 6. The failure to
make an adequate showing on either prong is fatal to an ineffective assistance of counsel
claim. State v. Zielinski, 12th Dist. Warren No. CA2010-12-121, 2011-Ohio-6535, ¶ 50.
{¶ 43} Counsel is strongly presumed to have rendered adequate assistance and made
all significant decisions in the exercise of reasonable professional judgment. State v.
Hendrix, 12th Dist. Butler No. CA2012-05-109, 2012-Ohio-5610, ¶ 14. It is not the role of the
appellate court to second guess the strategic decisions of trial counsel. State v. Lloyd, 12th
Dist. Warren Nos. CA2007-04-052, CA2007-04-053, 2008-Ohio-3383, ¶ 61. The decision
regarding which defense to pursue at trial is a matter of trial strategy, and trial strategy
decisions are not the basis of a finding of ineffective assistance of counsel. State v. Murphy,
91 Ohio St.3d 516, 524 (2001); State v. Murphy, 12th Dist. Butler No. CA2009-05-128, 2009-
Ohio-6745, ¶ 24. "[T]he scope of cross-examination falls within the ambit of trial strategy,
and debatable trial tactics do not establish ineffective assistance of counsel." Murphy, 2009-
Ohio-6745 at ¶ 32, quoting State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶ 101.
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{¶ 44} From our review of the record, many of the actions Kinsworthy now challenges
as deficient performance by trial counsel related to counsel's trial strategy and the defense
presented in this case. In particular, each of the alleged errors with regard to the "damaging"
questions counsel asked Kinsworthy and those asked during the cross-examination of Wall
fall under the ambit of trial strategy and do not establish ineffective assistance of counsel.
See Murphy, 2009-Ohio-6745 at ¶ 32.
{¶ 45} The trial transcript indicates part of Kinsworthy's defense was that Wall
fabricated the crimes to get him "in trouble." Accordingly, as stated during opening
statements, even though it "appeared" Kinsworthy was the perpetrator, counsel asserted he
did not commit these criminal acts. As part of this strategy, defense counsel intentionally
presented evidence regarding Kinsworthy and Wall's volatile relationship. It was the
defense's intent to paint Wall as a vindictive and vengeful person such that she had a motive
to make it appear as though Kinsworthy damaged her vehicle on two occasions and later
broke into her home. Simply because the jury chose to reject this version of the events
cannot be the basis for an ineffective assistance of counsel claim. State v. Davis, 12th Dist.
Butler No. CA2012-12-258, 2013-Ohio-3878, ¶ 25 ("The fact that trial strategy was ultimately
unsuccessful * * * does not amount to ineffective assistance of counsel"). Moreover, as
stated above, the decision regarding which defense to pursue at trial is a matter of trial
strategy, and trial strategy decisions are not the basis of a finding of ineffective assistance of
counsel. Murphy, 91 Ohio St.3d at 524.
{¶ 46} As to trial counsel's failure to mention Kinsworthy's alibi during opening
statements, there is nothing in the record which suggests that Kinsworthy suffered any
prejudice as a result of the opening statement made by counsel. It is well-settled that
opening statements are not evidence. See State v. Frazier, 73 Ohio St.3d 323, 338 (1995).
In addition, it is clear from the record that trial counsel did present alibi evidence through the
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testimony of both Marcia Kinsworthy and Robert Evans and referenced Kinsworthy's alibi
during closing arguments. Accordingly, counsel's failure to mention the alibi during opening
statements is not enough to rise to the level of ineffective assistance of counsel.
{¶ 47} Based on our resolution of the first and second assignments of error, we also
do not find that counsel's failure to object to the admission of "other acts" evidence or to the
admission of Officer Down's rebuttal testimony amounted to ineffective assistance of
counsel. As to the remaining instances of alleged ineffective assistance of counsel,
Kinsworthy has failed to offer any argument as to how he was prejudiced by the alleged
errors of counsel. He fails to show how he was prejudiced by Wall's testimony comparing
him to a serial killer or Officer Workmen's belief that he was the perpetrator of the burglary.
In addition, the alleged errors by counsel, even when viewed cumulatively, do not show that
there is a reasonable probability that, but for these alleged errors, the result of trial would
have been different. Accordingly, Kinsworthy has failed to make an adequate showing of
prejudice.
{¶ 48} Kinsworthy's third assignment of error is therefore overruled.
{¶ 49} Assignment of Error No. 4:
{¶ 50} THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW AND/OR
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE TO SUSTAIN APPELLANT'S
CONVICTIONS.
{¶ 51} In his fourth assignment of error, Kinsworthy asserts that his convictions for
menacing by stalking and burglary were not supported by sufficient evidence and were also
against the manifest weight of the evidence.
{¶ 52} Whether the evidence presented at trial is legally sufficient to sustain a verdict
is a question of law. State v. Hoskins, 12th Dist. Warren No. CA2013-02-013, 2013-Ohio-
3580, ¶ 16, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). When reviewing the
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sufficiency of the evidence underlying a criminal conviction, an appellate court examines the
evidence in order to determine whether such evidence, if believed, would convince the
average mind of the defendant's guilt beyond a reasonable doubt. Hoskins at ¶ 16.
Therefore, "[t]he relevant inquiry is whether, after viewing the evidence in a light most
favorable to the prosecution, any rational trier of fact could have found the essential elements
of the crime proven beyond a reasonable doubt." State v. Smith, 12th Dist. Warren Nos.
CA2012-02-017 and CA2012-02-018, 2012-Ohio-4644, ¶ 25, quoting State v. Jenks, 61 Ohio
St.3d 259 (1991), paragraph two of the syllabus.
{¶ 53} On the other hand, a manifest weight of the evidence challenge examines the
"inclination of the greater amount of credible evidence, offered at a trial, to support one side
of the issue rather than the other." State v. Williams, 12th Dist. Warren No. CA2012-08-080,
2013-Ohio-3410, ¶ 30. To determine whether a conviction is against the manifest weight of
the evidence, the reviewing court must look at the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of the witnesses, and determine whether in
resolving the conflicts in the evidence, the trier of fact clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.
Id. In weighing the evidence, circumstantial evidence and direct evidence inherently possess
the same probative value and are subjected to the same standard of proof. State v.
Williams, 12th Dist. Butler Nos. CA91-04-060 and CA92-06-110, 1992 WL 317025, * 6 (Nov.
2, 1992), citing Jenks at paragraph one of the syllabus. A conviction based purely on
circumstantial evidence is no less sound than a conviction based upon direct evidence.
Williams at * 6. "While appellate review includes the responsibility to consider the credibility
of witnesses and weight given to the evidence, 'these issues are primarily matters for the trier
of fact to decide[.]'" State v. Barnes, 12th Dist. Brown No. CA2010-06-009, 2011-Ohio-5226,
¶ 81, quoting State v. Walker, 12th Dist. Butler No. CA2006-04-085, 2007-Ohio-911, ¶ 26.
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An appellate court, therefore, will overturn a conviction due to the manifest weight of the
evidence only in extraordinary circumstances when the evidence presented at trial weighs
heavily in favor of acquittal. Williams at ¶ 30.
{¶ 54} "Because sufficiency is required to take a case to the jury, a finding that a
conviction is supported by the weight of the evidence must necessarily include a finding of
sufficiency." Smith, 2012-Ohio-4644 at ¶ 34. Accordingly, a determination that a conviction
is supported by the weight of the evidence will also be dispositive of the issue of sufficiency.
Id.Menacing by Stalking
{¶ 55} Kinsworthy was convicted of menacing by stalking in violation of R.C.
2903.211(A)(1) which provides: "No person by engaging in a pattern of conduct shall
knowingly cause another person to believe that the offender will cause physical harm to the
other person or cause mental distress to the other person." R.C. 2903.211(A)(1). "Mental
distress" is defined, in part, by R.C. 2903.211(D)(2) as: "Any mental illness or condition that
involves some temporary substantial incapacity." R.C. 2903.211(D)(2)(a). Kinsworthy
challenges whether the state proved "harm" to Wall or that he caused her "mental distress."
Kinsworthy also contends the state failed to prove beyond a reasonable doubt that he
engaged in a "pattern of conduct." He argues the incidents the state relied upon in proving
this element of the offense, namely the damage to Wall's car and the burglary, were
insufficient because the state did not prove he was the person who committed these acts as
no "independent evidence" was presented.
{¶ 56} In a prosecution for menacing by stalking, this court has previously held the
"state need only show that a defendant knowingly caused the victim to believe that he would
cause her mental distress or physical harm." (Emphasis sic.) State v. Bradford, 12th Dist.
Warren No. CA2010-04-032, 2010-Ohio-6429, ¶ 23; State v. Hart, 12th Dist. Warren No.
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CA2008-06-079, 2009-Ohio-997, ¶ 31. Therefore, "neither actual physical harm nor actual
mental distress is required." Id.{¶ 57} Upon a review of the record, the state provided substantial evidence which
indicated not only did Kinsworthy knowingly cause Wall to believe that he would cause her
mental distress or physical harm, but that he in fact caused her mental distress. In addition,
the state presented significant circumstantial evidence to prove Kinsworthy engaged in a
"pattern of conduct" including damaging Wall's vehicle on two occasions and burglarizing her
home on April 20, 2012.
{¶ 58} The state presented evidence which showed that Kinsworthy and Wall had a
tumultuous relationship and often argued with one another. Both testified that objects were
often thrown and broken during these arguments. On March 24, 2012, the two were involved
in a particularly intense argument that lasted much of the day. Wall testified that when
Kinsworthy left her condominium, he punched a hole in the wall and opened the door with
such force that it put a hole in the wall behind the door. The state also presented the text
messages between Wall and Kinsworthy from that day. At one point, Kinsworthy threatened
to break several of Wall's belongings, including her video game system, television, and iPad.
The messages also indicated that Kinsworthy threatened to kill Wall and he also threatened
to kill himself. On March 25, 2012, the two met at a friend's house. When Kinsworthy saw
his belongings in the back of her car he "got really mad," and "he started cussing at [Wall]."
Wall observed Kinsworthy kicking the "side quarter panel" of her car. At this time, their son
was in the back seat screaming. Wall testified that it was after this event that she became
scared of him.
{¶ 59} Wall testified that although she often did not take Kinsworthy's threats that he
would kill her seriously, after the events of March 25, 2012, she became scared of him. Wall
further testified that after seeing Kinsworthy kick her car while their son was inside, "I was
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scared to death. I was afraid he was going to hurt me." The state also presented text
messages between Kinsworthy and Wall from that day. In one of these messages,
Kinsworthy stated: "I can promise you one thing though, NO MAN is going to be happy with
you as long as im [sic] still breathing[.]" During this exchange, Wall specifically told
Kinsworthy, "[I] am scared of you now."
{¶ 60} Wall further testified that the day after Kinsworthy's visitation rights with his son
were temporarily suspended, following the issuance of a temporary civil protection order, she
discovered the windshield of her vehicle shattered. Wall contacted the police and indicated
she believed Kinsworthy broke the windshield. Although there was no direct testimony
presented regarding the damage to the windshield, given the timing of the vandalism and that
only Wall's vehicle was damaged, there was certainly circumstantial evidence which
permitted the jury to conclude that Kinsworthy was the person who broke the windshield.
There was also testimony regarding the burglary of Walls' home that occurred on April 20,
2012. Wall again testified that based on previous threats by Kinsworthy, she believed he
was the perpetrator. Officer Workmen also testified that she believed, based upon the items
damaged and the items that were stolen, that the "burglary seemed very personal."
{¶ 61} Based on the foregoing, the jury did not clearly lose its way and create a
manifest miscarriage of justice requiring a reversal of Kinsworthy's conviction for menacing
by stalking. Accordingly, we find Kinsworthy's menacing by stalking conviction is not against
the manifest weight of the evidence.
Burglary
{¶ 62} Kinsworthy was also convicted of burglary in violation of R.C. 2911.12(A)(3),
which states: "No person, by force, stealth, or deception, shall * * * [t]respass in an occupied
structure or in a separately secured or separately occupied portion of an occupied structure,
with purpose to commit in the structure or separately secured or separately occupied portion
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of the structure any criminal offense." Kinsworthy asserts the state failed to prove this
offense because he presented an alibi, and furthermore that "there was no physical evidence
linking him to the burglary."
{¶ 63} Once again, contrary to Kinsworthy's arguments, the state is not required to
present direct evidence which links him to the crime. See Williams, 1992 WL 317025 at * 6.
However, Kinsworthy is correct that the physical evidence presented by the state was
inconclusive at best. Although Amy Dalliard, a forensic scientist with the Miami Valley
Regional Crime Lab, testified that Kinsworthy's DNA evidence was found on Wall's bed
sheets, given the fact that Kinsworthy often stayed at the condominium, this evidence was of
4
little value. However, the state presented significant circumstantial evidence to support his
conviction.
{¶ 64} Specifically, the state presented testimony that on April 20, 2012, when Wall
returned to her condominium, she noticed her door frame had been damaged, there was
broken wood and parts of the door lock on the floor in her entryway, and the door was ajar.
The jury heard testimony that Kinsworthy had significant experience in breaking down doors
due to his experience in the army. The jury also heard testimony from Wall and Kinsworthy
that he previously threatened to kill her dog and also threatened to break her video game
system, televisions, and iPad. When the police arrived at the scene, they found Wall's dog,
dead in the laundry room. A veterinarian that treated the dog during its life testified he
believed the dog did not die of natural causes, but rather that the dog was suffocated. During
the burglary, the television in Wall's bedroom, which the couple purchased together, was
broken. Yet, the television in her family room was left untouched. In addition, only jewelry
which Kinsworthy had given Wall was taken during the burglary. Other, more expensive
4. We note the record is inconsistent with regards to the spelling of Ms. Dalliard's name. At times it is spelled
Dalliard, and others, it is spelled Dalliare. For ease of discussion, we will refer to her as Dalliard.
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jewelry was left undisturbed.
{¶ 65} Officer Workmen explained the damage to the condominium was not typical for
a burglary where the goal is to "steal." One of the items taken during the burglary was a
framed picture of the couple's newborn son. In addition, "the entire condo wasn't ransacked.
Most of the time if there was a TV you'd find the TV missing instead of damaged."
{¶ 66} Finally, Kinsworthy asserts the testimony regarding his alibi is sufficient to show
his conviction for burglary is against the weight of the evidence. During trial, Kinsworthy
presented the testimony of his friend Robert Evans. Both Evans and Kinsworthy testified that
Kinsworthy was in North Carolina visiting Evans on the weekend of April 20, 2012. Both men
also testified that the drive to North Carolina is approximately ten hours and that Kinsworthy
arrived at approximately 10:00 p.m. on April 20, 2012. Kinsworthy testified that he left his
home in Ohio at approximately 12:00 p.m. As to Kinsworthy's whereabouts the morning of
April 20, 2012, a transaction log from Kinsworthy's debit card was entered into evidence.
The transaction log indicated that from 8:26 a.m. to 8:43 a.m., Kinsworthy stopped at a
RedBox, Kroger, and McDonalds. The next entry was at 11:59 a.m. when Kinsworthy
stopped at a local bank.
{¶ 67} Although the jury could have found Evans' and Kinsworthy's testimony about
Kinsworthy's whereabouts on April 20, 2012 credible, the jury was not required to do so. See
State v. Widmer, 12th Dist. Warren No. CA2011-03-027, 2012-Ohio-4342, ¶ 107 (finding jury
was permitted to reject those portions of testimony that it did not find credible). From the
time he purportedly returned home after 8:43 a.m. until he went to his bank at 11:59 a.m. on
April 20, 2012, Kinsworthy was unable to "account for where [he] was at all times." Although
he testified he was at home preparing for his trip to North Carolina, there was no evidence
presented which corroborated this testimony. Wall testified that she left home at
approximately 7:00 a.m. that morning and did not return until sometime after 3:00 p.m.
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Accordingly, even accepting Kinsworthy and Evans' testimony, the jury could have found
Kinsworthy had enough time from 8:43 a.m. and 11:59 a.m. to commit the burglary.
{¶ 68} Based on the record, the jury did not clearly lose its way and create a manifest
miscarriage of justice requiring a reversal of Kinsworthy's conviction for burglary.
Accordingly, we find Kinsworthy's conviction is not against the manifest weight of the
evidence.
{¶ 69} As Kinsworthy's convictions for menacing by stalking and burglary were not
against the manifest weight of the evidence, we necessarily conclude that his convictions
were also supported by sufficient evidence. See Smith, 2012-Ohio-4644 at ¶ 34.
Accordingly, Kinsworthy's fourth assignment of error is overruled.
{¶ 70} Assignment of Error No. 5:
{¶ 71} THE TRIAL COURT ERRED AS A MATTER OF LAW BY IMPROPERLY
SENTENCING APPELLANT.
{¶ 72} Kinsworthy asserts in his fifth assignment of error that the trial court committed
several errors in imposing his sentence. He contends the trial court should have merged his
convictions for burglary and menacing by stalking as they are allied offenses of similar
import. In addition, Kinsworthy argues the trial court failed to comply with several statutory
provisions in imposing an aggregate sentence of 27 months.
Allied Offenses of Similar Import
{¶ 73} Kinsworthy argues his convictions for menacing by stalking and burglary should
have merged at sentencing because the state "relied upon [a]ppellant's 'violent' behavior
towards Ms. Wall, including the burglary, in convicting him of the [m]enacing count."
{¶ 74} An appellate court applies a de novo standard of review in reviewing a trial
court's R.C. 2941.25 merger determination. State v. Tannreuther, 12th Dist. Butler No.
CA2013-04-062, 2014-Ohio-74, ¶ 12, citing State v. Williams, 134 Ohio St.3d 482, 2012-
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Ohio-5699, ¶ 28. "The defendant bears the burden of establishing his entitlement to the
protection provided by R.C. 2941.25 against multiple punishments for a single criminal act."
Tannreuther at ¶ 12.
{¶ 75} The Ohio Supreme Court has set forth a test to determine whether offenses are
allied offenses of similar import under R.C. 2941.25.5 State v. Johnson, 128 Ohio St.3d 153,
2010-Ohio-6314. Pursuant to the Johnson test, the court must first determine "whether it is
possible to commit one offense and commit the other with the same conduct." (Emphasis
sic.) State v. Lane, 12th Dist. Butler No. CA2013-05-074, 2014-Ohio-562, ¶ 10, citing
Johnson at ¶ 48. It is not necessary that the commission of one offense will always result in
the commission of the other. Id. Rather, the question is simply whether it is possible for both
offenses to be committed by the same conduct. Id. "If the offenses correspond to such a
degree that the conduct of the defendant constituting one offense constitutes the commission
of the other, then the offenses are of similar import." State v. Snyder, 12th Dist. Butler No.
CA2011-02-018, 2011-Ohio-6346, ¶ 15, quoting Johnson at ¶ 48.
{¶ 76} If it is possible to commit both offenses with the same conduct, the court must
next determine whether the offenses were in fact committed by the same conduct, that is, by
a single act, performed with a single state of mind. Lane at ¶ 11, citing Johnson at ¶ 49. If
so, the offenses are allied offenses of similar import and must be merged. Lane at ¶ 11,
5. {¶ a} R.C. 2941.25 provides:
{¶ b} (A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the indictment
or information may contain counts for all such offenses, but the
defendant may be convicted of only one.
{¶ c} (B) Where the defendant's conduct constitutes two or more offenses of
dissimilar import, or where his conduct results in two or more offenses
of the same or similar kind committed separately or with a separate
animus as to each, the indictment or information may contain counts
for all such offenses, and the defendant may be convicted of all of
them.
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citing Johnson at ¶ 50. On the other hand, if the offenses are committed separately or with a
separate animus, the offenses will not merge. Lane at ¶ 11, citing Johnson at ¶ 51.
{¶ 77} In the present case, Kinsworthy was convicted of menacing by stalking which
states: "No person by engaging in a pattern of conduct shall knowingly cause another person
to believe that the offender will cause physical harm to the other person or cause mental
distress to the other person." R.C. 2903.211(A)(1). He was also convicted of burglary which
provides in pertinent part: "No person by force, stealth, or deception, shall * * * [t]respass in
an occupied structure * * *with purpose to commit in the structure * * * any criminal offense."
R.C. 2911.12(A)(3).
{¶ 78} Applying Johnson to the facts of this case, we find Kinsworthy's menacing by
stalking and burglary convictions are not allied offenses of similar import because, by the
very nature of these two offenses, it is not possible to commit both offenses with the same
conduct. As menacing by stalking requires a pattern of conduct and burglary only requires
that the offender trespass an occupied structure with the purpose to commit a criminal
offense, a burglary alone could not be the basis for a menacing by stalking conviction.
Rather, the offender must have committed a series of actions which caused another person
to believe that the offender will cause physical harm to the other person or cause mental
distress to the other person. The offenses of burglary and menacing by stalking simply do
not correspond to such a degree that Kinsworthy's conduct constitutes the commission of
both offenses. Johnson at ¶ 48.
{¶ 79} Kinsworthy committed burglary when he forced his way into Wall's residence by
breaking down the door with the intent to commit any criminal offense once inside.
Therefore, once he crossed the threshold and was inside the residence, the burglary was
complete. The menacing by stalking offense, however, required a pattern of conduct. One
act, such as breaking into Wall's home, would have been insufficient to establish menacing
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by stalking. Although Kinsworthy is correct that the state provided testimony regarding the
burglary to further establish Kinsworthy's pattern of conduct, this is not to say that the state
relied upon the same conduct to prove both the burglary and menacing by stalking offenses.
Rather, the state presented numerous other instances of Kinsworthy's conduct during March
and April 2012 to establish a "pattern of conduct," including Kinsworthy's prior threatening
text messages, his threats to kill Wall, and his acts of punching holes in her walls, breaking
various personal items, kicking her car, and breaking the windshield of her car.
{¶ 80} As menacing by stalking and burglary are not allied offenses of similar import,
we find the trial court did not err by not merging the two convictions at sentencing.
Imposition of an Aggregate 27-Month Prison Term
{¶ 81} Kinsworthy asserts the trial court abused its discretion when it imposed his
sentence without considering the purposes and principles of sentencing. Furthermore, he
argues the trial court erred in imposing consecutive sentences as it did not make the requisite
findings under R.C. 2929.14(C)(4). Finally, Kinsworthy asserts the trial court's imposition of a
prison sentence for menacing by stalking, a fourth-degree felony violated R.C.
2929.13(B)(1)(b)(i)-(iv).
{¶ 82} As an initial matter, this court once again notes that "the standard of review set
forth in R.C. 2953.08(G)(2) shall govern all felony sentences." State v. Crawford, 12th Dist.
Clermont No. CA2012-12-088, 2013-Ohio-3315, ¶ 6. Pursuant to R.C. 2953.08(G)(2), when
hearing an appeal of a trial court's felony sentencing decision, such as the case here, "[t]he
appellate court may increase, reduce, or otherwise modify a sentence that is appealed under
this section or may vacate the sentence and remand the matter to the sentencing court for
resentencing." R.C. 2953.08(G)(2). However, as explicitly stated in R.C. 2953.08(G)(2),
"[t]he appellate court's standard of review is not whether the sentencing court abused its
discretion."
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{¶ 83} Instead, an appellate court may take any action authorized by R.C.
2953.08(G)(2) only if the court "clearly and convincingly finds" that either (1) "the record does
not support the sentencing court's findings under division (B) or (D) of section 2929.13
division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised
Code, whichever, if any, is relevant;" or (2) "[t]hat the sentence is otherwise contrary to law."
In making such a determination, it is "important to understand that the clear and convincing
standard used by R.C. 2953.08(G)(2) is written in the negative." Crawford at ¶ 8, quoting
State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891, ¶ 21. "It does not say that
the trial court judge must have clear and convincing evidence to support its findings." Quite
the contrary, "it is the court of appeals that must clearly and convincingly find that the record
does not support the trial court's findings." Id. Simply stated, the language in R.C.
2953.08(G)(2) establishes an "extremely deferential standard of review" as the restriction is
on the appellate court, rather than the trial court. Id.{¶ 84} A sentence is not clearly and convincingly contrary to law where the trial court
considers the purposes and principles of R.C. 2929.11, as well as the factors listed in R.C.
2929.12, properly applies postrelease control, and sentences the accused within the
permissible statutory range. State v. Lane, 12th Dist. Butler No. CA2013-05-074, 2014-Ohio-
562, ¶ 22, citing Crawford at ¶ 9.
{¶ 85} With these principles in mind, we first note the trial court properly complied with
R.C. 2929.13(B) in imposing a prison term for Kinsworthy's menacing by stalking conviction.
R.C. 2929.13(B)(1)(a) provides, in certain conditions, a presumption of community control for
some fourth-degree felonies. R.C. 2929.13(B)(1)(a). However, where R.C. 2929.13(B)(1)(b)
applies, the trial court is permitted to impose a prison sentence. R.C. 2929.13(B)(1)(b); see
also State v. Glowka, 12th Dist. Butler No. CA2012-10-203, 2013-Ohio-3080, ¶ 18. Since
Kinsworthy had previously served a prison term, the presumption did not apply and it was
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within the trial court's discretion to impose a prison sentence. R.C. 2929.13(B)(1)(b)(x).
{¶ 86} Kinsworthy next argues that the trial court erred in imposing consecutive
sentences. A sentence is contrary to law where the trial court fails to make the consecutive
sentencing findings as required by R.C. 2929.14(C)(4). State v. Marshall, 12th Dist. Warren
No. CA2013-05-042, 2013-Ohio-5092, ¶ 8.
{¶ 87} Pursuant to R.C. 2929.14(C), in order to impose a consecutive sentence, the
trial court must engage in a three-step analysis and make certain findings before imposing
consecutive sentences. Lane, 2014-Ohio-562 at ¶ 24, citing State v. Dillon, 12th Dist.
Madison No. CA2012-06-012, 2013-Ohio-335, ¶ 9. First, the trial court must find that the
consecutive sentence is necessary to protect the public from future crime or to punish the
offender. Lane at ¶ 24. Second, the trial court must find that consecutive sentences are not
disproportionate to the seriousness of the offender's conduct and to the danger the offender
poses to the public. Id. Third, the trial court must find that one of the following applies:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a
sanction imposed pursuant to section 2929.16, 2929.17, or
2929.18 of the Revised Code, or was under post-release control
for a prior offense.
(b) At least two of the multiple offenses were committed as part
of one or more courses of conduct, and the harm caused by two
or more of the multiple offenses so committed was so great or
unusual that no single prison term for any of the offenses
committed as part of any of the courses of conduct adequately
reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from
future crime by the offender.
R.C. 2929.14(C)(4).
{¶ 88} The trial court is not required to give reasons explaining these findings, nor is
the court required to recite any "magic" or talismanic" words when imposing consecutive
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sentences. State v. Williams, 12th Dist. Warren No. CA2012-08-080, 2013-Ohio-3410, ¶ 45.
However, it must be clear from the record that the trial court actually made the required
statutory findings. Id.{¶ 89} Prior to sentencing Kinsworthy to consecutive sentences, the trial court noted
that it had reviewed a presentence report, and numerous letters from Kinsworthy's family, as
well as a victim impact statement from Wall. The trial court took notice of Kinsworthy's
military experience and the fact that such experience may have exacerbated his problems
with controlling his anger and alcohol, but explained to Kinsworthy that he still must be
responsible for his actions. In addition, the trial court discussed the seriousness of
Kinsworthy's conduct, stating: "You terrorized a young woman without any justification
whatsoever" and further noted its concern for the public: "I worry about you being amongst
us. You are a dangerous person. You're a violent person. You're a person that cannot
completely control his anger." Finally, the trial court also noted that even though he had
previously served a prison term that "didn't stop this behavior."
{¶ 90} In light of these facts, the court determined that Kinsworthy's sentences for
menacing by stalking and burglary should be served consecutively. Specifically, the court
stated:
I find that there was a continuing course of conduct that you had
already been to prison before you committed these crimes, that
no one single sentence would adequately punish you for your
behavior that was exhibited here, that it would demean the
seriousness of both offenses to not impose consecutive
sentences.
From the trial court's statements at the sentencing hearing, we find the trial court properly
complied with the dictates of R.C. 2929.14(C)(4). Therefore, the trial court did not err in
imposing consecutive sentences.
{¶ 91} We also disagree with Kinsworthy's contention that his sentence was in error
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because the trial court did not consider the principles and purposes of felony sentencing
under R.C. 2929.11 or weigh the seriousness and recidivism factors under R.C. 2929.12.
The sentencing entry specifically states that the trial court considered "the principles and
purposes of sentencing under R.C. 2929.11, and has balanced the seriousness and
recidivism factors under R.C. 2929.12." Furthermore, the record from Kinsworthy's
sentencing hearing reveals the trial court considered the necessary sentencing provisions
before imposing sentence. In fact, the trial court referenced the purpose of sentencing, and
further noted the serious nature of Kinsworthy's offenses, his criminal history, and his
repeated failure to change his behavior and "turn his life around."
{¶ 92} In light of the foregoing, we find the trial court did not err in sentencing
Kinsworthy to an aggregate 27-month prison term for menacing by stalking and burglary.
Kinsworthy's fifth and final assignment of error is overruled.
{¶ 93} Judgment affirmed.
PIPER and M. POWELL, JJ., concur.
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