[Cite as State v. Cunningham, 2026-Ohio-1643.]
IN THE OHIO COURT OF APPEALS FIFTH APPELLATE DISTRICT MUSKINGUM COUNTY, OHIO
STATE OF OHIO Case No. CT2025-0099
Plaintiff – Appellee Opinion And Judgment Entry
-vs- Appeal from the Muskingum County Court of Common Pleas, Case No. CR2025-0391 DONALD L. CUNNINGHAM Judgment: Affirmed
Defendant - Appellant Date of Judgment Entry: May 6, 2026
BEFORE: William B. Hoffman, Robert G. Montgomery, and Kevin W. Popham, Judges
APPEARANCES: Joseph A. Palmer for Plaintiff-Appellee; Christopher Bazeley, for Defendant-Appellant
OPINION
Popham, J.,
{¶1} Appellant Donald Cunninhgam appeals the judgment entered by the
Muskingum County Court of Common Pleas following a jury trial. Appellee is the State
of Ohio. For the reasons below, we affirm.
Facts & Procedural History
{¶2} Cunningham was indicted on the following counts: strangulation, in
violation of R.C. 2903.18(B)(2), a felony of the third degree, kidnapping, in violation of
R.C. 2905.01(A)(2), a felony of the first degree, abduction, a violation of R.C.
2905.02(A)(2), a felony of the third degree, tampering with evidence, in violation of R.C. 2921.12(A)(1), a felony of the third degree, and obstructing official business, in violation
of R.C. 2921.31(A), a felony of the fifth degree.
{¶3} On July 29, 2025, a jury trial commenced from which the following facts are
adduced.
{¶4} Cunninghan and T.M. lived together for approximately three years but were
not romantically involved. T.M. testified that the occupants of the home used
methamphetamines several times per week. She stated that, during a verbal argument,
Cunningham complained that she would not have sex with him. T.M. testified that, as the
argument escalated, Cunningham grabbed her, covered her mouth and nose, punched her
in the head, and chased her downstairs after she had broken free. He then allegedly
prevented her from leaving by engaging the deadbolt and threatening to kill her. T.M. ran
upstairs, escaped through a window, fled to a neighbor’s house, and called 911.
{¶5} Police attempted to locate Cunningham, who testified that, although he was
not hiding from the police, he knew police were looking for him, and he was “trying to
avoid” them. When police apprehended Cunningham, they asked to see his phone to
obtain video footage from cameras in the home. Before handing the phone over to police,
Cunningham performed a factory reset - deleting all data off the phone.
{¶6} Unbeknownst to police, the phone, which was a new, different phone than
Cunnigham possessed at the time of the assault, Cunningham provided never contained
the relevant video. Cunningham had obtained a new phone after learning police were
looking for him, fearing the police would “ping” his old phone. Cunningham admitted he
knew police were seeking the videos and acknowledged that he lied to a detective by
stating the (new) phone, which he reset, did not contain the videos. He also failed to
disclose the existence of a second phone. {¶7} Cunningham further testified that he attempted to provoke police into
shooting him because he “wanted to die,” and he did not comply with officers’ instructions
during his arrest. He admitted that his conduct delayed the officers and delayed his
arrest. Defense counsel asked Cunningham - “and so if you were to learn that delaying an
officer in the performance of their duties without privilege to do so and creating a risk of
physical harm to somebody was a felony called obstructing official business, you would
agree that you committed that felony, right” – to which Cunningham responded, “right.”
{¶8} The jury found Cunningham not guilty of strangulation, kidnapping, and
abduction but guilty of tampering with evidence and obstruction of official business. The
jury also found that the obstruction offense created a risk of physical harm to
Cunningham.
{¶9} With the parties’ consent, the trial court proceeded immediately to
sentencing. The State requested an aggregate prison term of four years, citing
Cunningham’s criminal history, including aggravated burglary (1993), misdemeanor
assault (2023), violation of a protection order (2022), and misdemeanor domestic
violence (2021). Defense counsel requested a sentence of eighteen to twenty-four months
in prison.
{¶10} At the sentencing hearing, the trial court emphasized that Cunningham
worsened the situation by lying to police and deleting or concealing evidence. The court
also specifically noted that Cunningham’s attempt to provoke police into shooting him
was serious, and created a dangerous situation for himself and others in the
neighborhood.
{¶11} In an August 1, 2025, judgment entry, the trial court stated it considered the
record, all statements, the principles and purposes of sentencing contained in R.C. 2929.11, and the balance of seriousness and recidivism factors under R.C. 2929.12. The
trial court sentenced Cunningham to a stated prison term of 36 months in prison on the
tampering with evidence count, and a stated prison term of 12 months in prison on the
obstructing official business count, to be served consecutively, for a total aggregate prison
term of forty-eight months.
{¶12} Cunningham appeals from the August 1, 2025, judgment entry of the
Muskingum County Court of Common Pleas, and assigns the following as error:
{¶13} “I. CUNNINGHAM’S SENTENCE ON HIS TAMPERING WITH EVIDENCE
CONVICTION IS CONTRARY TO LAW BECAUSE THE TRIAL COURT MISAPPLIED
THE R.C. 2929.11 FACTORS.”
I.
{¶14} We review felony sentences using the standard of review set forth in R.C.
2953.08. State v. Marcum, 2016-Ohio-1002. R.C. 2953.08 provides we may either
increase, reduce, modify, or vacate a sentence and remand for sentencing where we clearly
and convincingly find either the record does not support the sentencing court’s findings
under R.C. 2929.13(B) or (D), R.C. 2929.14(B)(2)(e) or (C)(4), or R.C. 2929.20(I), or the
sentence is otherwise contrary to law. Id.
{¶15} Nothing in R.C. 2953.08 permits this Court to independently weigh the
evidence in the record and substitute our own judgment for that of the trial court to
determine a sentence that best reflects compliance with R.C. 2929.11 and R.C. 2929.12.
State v. Jones, 2020-Ohio-6729. Instead, we may only determine if the sentence is
contrary to law. A sentence is not clearly and convincingly contrary to law where the trial
court “considers the principles and purposes of R.C. 2929.11, as well as the factors listed
in R.C. 2929.12, properly imposes post-release control, and sentences the defendant within the permissible statutory range.” State v. Pettorini, 2021-Ohio-1512, ¶ 16 (5th
Dist.).
{¶16} When sentencing a defendant, the trial court must consider the purposes
and principles of felony sentencing set forth in R.C. 2929.11, and the seriousness and
recidivism factors in R.C. 2929.12. State v. Taylor, 2024-Ohio-238 (5th Dist.).
{¶17} “The overriding purposes of felony sentencing are to protect the public from
future crime by the offender and others, to punish the offender, and to promote the
effective rehabilitation of the offender using the minimum sanctions that the court
determines accomplish those purposes without imposing an unnecessary burden on state
or local government resources.” R.C. 2929.11(A). In order to achieve these purposes, “the
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as State v. Cunningham, 2026-Ohio-1643.]
IN THE OHIO COURT OF APPEALS FIFTH APPELLATE DISTRICT MUSKINGUM COUNTY, OHIO
STATE OF OHIO Case No. CT2025-0099
Plaintiff – Appellee Opinion And Judgment Entry
-vs- Appeal from the Muskingum County Court of Common Pleas, Case No. CR2025-0391 DONALD L. CUNNINGHAM Judgment: Affirmed
Defendant - Appellant Date of Judgment Entry: May 6, 2026
BEFORE: William B. Hoffman, Robert G. Montgomery, and Kevin W. Popham, Judges
APPEARANCES: Joseph A. Palmer for Plaintiff-Appellee; Christopher Bazeley, for Defendant-Appellant
OPINION
Popham, J.,
{¶1} Appellant Donald Cunninhgam appeals the judgment entered by the
Muskingum County Court of Common Pleas following a jury trial. Appellee is the State
of Ohio. For the reasons below, we affirm.
Facts & Procedural History
{¶2} Cunningham was indicted on the following counts: strangulation, in
violation of R.C. 2903.18(B)(2), a felony of the third degree, kidnapping, in violation of
R.C. 2905.01(A)(2), a felony of the first degree, abduction, a violation of R.C.
2905.02(A)(2), a felony of the third degree, tampering with evidence, in violation of R.C. 2921.12(A)(1), a felony of the third degree, and obstructing official business, in violation
of R.C. 2921.31(A), a felony of the fifth degree.
{¶3} On July 29, 2025, a jury trial commenced from which the following facts are
adduced.
{¶4} Cunninghan and T.M. lived together for approximately three years but were
not romantically involved. T.M. testified that the occupants of the home used
methamphetamines several times per week. She stated that, during a verbal argument,
Cunningham complained that she would not have sex with him. T.M. testified that, as the
argument escalated, Cunningham grabbed her, covered her mouth and nose, punched her
in the head, and chased her downstairs after she had broken free. He then allegedly
prevented her from leaving by engaging the deadbolt and threatening to kill her. T.M. ran
upstairs, escaped through a window, fled to a neighbor’s house, and called 911.
{¶5} Police attempted to locate Cunningham, who testified that, although he was
not hiding from the police, he knew police were looking for him, and he was “trying to
avoid” them. When police apprehended Cunningham, they asked to see his phone to
obtain video footage from cameras in the home. Before handing the phone over to police,
Cunningham performed a factory reset - deleting all data off the phone.
{¶6} Unbeknownst to police, the phone, which was a new, different phone than
Cunnigham possessed at the time of the assault, Cunningham provided never contained
the relevant video. Cunningham had obtained a new phone after learning police were
looking for him, fearing the police would “ping” his old phone. Cunningham admitted he
knew police were seeking the videos and acknowledged that he lied to a detective by
stating the (new) phone, which he reset, did not contain the videos. He also failed to
disclose the existence of a second phone. {¶7} Cunningham further testified that he attempted to provoke police into
shooting him because he “wanted to die,” and he did not comply with officers’ instructions
during his arrest. He admitted that his conduct delayed the officers and delayed his
arrest. Defense counsel asked Cunningham - “and so if you were to learn that delaying an
officer in the performance of their duties without privilege to do so and creating a risk of
physical harm to somebody was a felony called obstructing official business, you would
agree that you committed that felony, right” – to which Cunningham responded, “right.”
{¶8} The jury found Cunningham not guilty of strangulation, kidnapping, and
abduction but guilty of tampering with evidence and obstruction of official business. The
jury also found that the obstruction offense created a risk of physical harm to
Cunningham.
{¶9} With the parties’ consent, the trial court proceeded immediately to
sentencing. The State requested an aggregate prison term of four years, citing
Cunningham’s criminal history, including aggravated burglary (1993), misdemeanor
assault (2023), violation of a protection order (2022), and misdemeanor domestic
violence (2021). Defense counsel requested a sentence of eighteen to twenty-four months
in prison.
{¶10} At the sentencing hearing, the trial court emphasized that Cunningham
worsened the situation by lying to police and deleting or concealing evidence. The court
also specifically noted that Cunningham’s attempt to provoke police into shooting him
was serious, and created a dangerous situation for himself and others in the
neighborhood.
{¶11} In an August 1, 2025, judgment entry, the trial court stated it considered the
record, all statements, the principles and purposes of sentencing contained in R.C. 2929.11, and the balance of seriousness and recidivism factors under R.C. 2929.12. The
trial court sentenced Cunningham to a stated prison term of 36 months in prison on the
tampering with evidence count, and a stated prison term of 12 months in prison on the
obstructing official business count, to be served consecutively, for a total aggregate prison
term of forty-eight months.
{¶12} Cunningham appeals from the August 1, 2025, judgment entry of the
Muskingum County Court of Common Pleas, and assigns the following as error:
{¶13} “I. CUNNINGHAM’S SENTENCE ON HIS TAMPERING WITH EVIDENCE
CONVICTION IS CONTRARY TO LAW BECAUSE THE TRIAL COURT MISAPPLIED
THE R.C. 2929.11 FACTORS.”
I.
{¶14} We review felony sentences using the standard of review set forth in R.C.
2953.08. State v. Marcum, 2016-Ohio-1002. R.C. 2953.08 provides we may either
increase, reduce, modify, or vacate a sentence and remand for sentencing where we clearly
and convincingly find either the record does not support the sentencing court’s findings
under R.C. 2929.13(B) or (D), R.C. 2929.14(B)(2)(e) or (C)(4), or R.C. 2929.20(I), or the
sentence is otherwise contrary to law. Id.
{¶15} Nothing in R.C. 2953.08 permits this Court to independently weigh the
evidence in the record and substitute our own judgment for that of the trial court to
determine a sentence that best reflects compliance with R.C. 2929.11 and R.C. 2929.12.
State v. Jones, 2020-Ohio-6729. Instead, we may only determine if the sentence is
contrary to law. A sentence is not clearly and convincingly contrary to law where the trial
court “considers the principles and purposes of R.C. 2929.11, as well as the factors listed
in R.C. 2929.12, properly imposes post-release control, and sentences the defendant within the permissible statutory range.” State v. Pettorini, 2021-Ohio-1512, ¶ 16 (5th
Dist.).
{¶16} When sentencing a defendant, the trial court must consider the purposes
and principles of felony sentencing set forth in R.C. 2929.11, and the seriousness and
recidivism factors in R.C. 2929.12. State v. Taylor, 2024-Ohio-238 (5th Dist.).
{¶17} “The overriding purposes of felony sentencing are to protect the public from
future crime by the offender and others, to punish the offender, and to promote the
effective rehabilitation of the offender using the minimum sanctions that the court
determines accomplish those purposes without imposing an unnecessary burden on state
or local government resources.” R.C. 2929.11(A). In order to achieve these purposes, “the
sentencing court shall consider the need for incapacitating the offender, deterring the
offender and others from future crime, rehabilitating the offender, and making restitution
to the victim of the offense, the public, or both.” Id. Further, the sentence imposed shall
be “commensurate with and not demeaning to the seriousness of the offender’s conduct
and its impact on the victim, and consistent with sentences imposed for similar crimes by
similar offenders.” R.C. 2929.11(B).
{¶18} R.C. 2929.12 lists general factors which must be considered by the trial
court in determining the sentence to be imposed for a felony, and gives detailed criteria,
which do not control the court’s discretion, but which must be considered for or against
severity or leniency in a particular case. The trial court retains discretion to determine
the most effective way to comply with the purposes and principles of sentencing as set
forth in R.C. 2929.11. R.C. 2929.12.
{¶19} In this case, the judgment entry states the trial court considered the
principles and purposes of sentencing under R.C. 2929.11 and balanced the seriousness and recidivism factors under R.C. 2929.12. The sentence imposed by the trial court is
within the statutory guidelines.
{¶20} Cunningham argues that the trial court, in imposing the maximum sentence
on the tampering with evidence count, improperly relied on speculation that access to the
deleted video might have avoided trial. Further, that the statements by the trial court
during the sentencing hearing “improperly presumes that Cunningham has a burden to
prove he is innocent.” We find Cunningham’s arguments unpersuasive.
{¶21} The trial court specifically acknowledged Cunningham’s acquittal on the
other charges. The court did not shift the burden of proof but instead emphasized that
Cunningham’s actions – deleting potential evidence and misleading police – exacerbated
the situation. The court also noted that the deleted video might have been beneficial to
Cunningham’s defense. Additionally, the trial court properly considered Cunningham’s
conduct in attempting to provoke police into shooting him, which created a serious risk
to himself and others.
{¶22} While Cunningham may disagree with the weight given to the R.C. 2929.11
and R.C. 2929.12 factors by the trial judge, we have no basis for concluding the sentence
in the instant case is clearly and convincingly contrary to law. The record demonstrates
the trial court heard statements from the prosecutor and defense counsel.
{¶23} We conclude the trial court did not commit error when it sentenced
Cunningham. Upon review, we find the trial court’s sentencing complies with applicable
rules and sentencing statutes. Cunningham’s assignment of error is overruled. For the reasons stated in our Opinion, the judgment of the Muskingum County
Court of Common Pleas is affirmed.
Costs to Appellant Donald Cunningham.
By: Popham, J.
Hoffman, P.J. and
Montgomery, J., concur