[Cite as State v. Gilmore, 2024-Ohio-2095.]
COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff - Appellee : Hon. Craig R. Baldwin, J. : Hon. Andrew J. King, J. -vs- : : ERIC S. GILMORE, : Case No. 2023 CA 00031 : Defendant - Appellant : OPINION
NUNC PRO TUNC
CHARACTER OF PROCEEDING: Appeal from the Fairfield County Municipal Court, Case No. 22 CRB 1219
JUDGMENT: Affirmed
DATE OF JUDGMENT: May 30, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
DAVID R. KLEMP ERIC S. GILMORE, Pro Se City of Lancaster Law Director 1030 Chenonceaux Dr. & Prosecutor's Office Marion, Ohio 43302 Assistant Prosecutor 136 West Main Street P.O. Box 1008 Lancaster, Ohio 43130 Fairfield County, Case No. 2023 CA 00031 2
Baldwin, J.
{¶1} The appellant appeals his conviction and sentence on charges of
telecommunications harassment and nonconsensual dissemination of private sexual
images of another. Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND THE CASE
{¶2} On August 17, 2022, the Fairfield County Sheriff's Department received a
report of threats and harassment involving unwanted pornographic images that had been
emailed to the caller. Deputy Daniel Kaltenegger responded to the scene and spoke with
the caller, R.S.
{¶3} On August 16, 2022, R.S. had received two separate emails from the
appellant, each containing a photograph of R.S.’s sister-in-law, J.M., nude and engaged
in sexual activity. The emails read “[w]hat do you think?”, and “[c]an your wife do what
her sister can?” R.S. further stated that the emails came from the address
“gilmoredash@outlook.com,” which he believed to belong to the appellant.
{¶4} Deputy Kaltenegger thereafter spoke with J.M., who stated that she had
been in a relationship with appellant, but that they had broken up. J.M. further stated that
the photographs in question were taken with her consent while she and the appellant
were in a relationship; however, she stated that at no time did she given the appellant
consent to distribute the photos to anyone else. Finally, J.M. stated that she believed the
appellant sent the emails to R.S. because he was angry with her for refusing to reconcile
with him, and he was trying to hurt her.
{¶5} Deputy Kaltenegger then spoke with the appellant regarding the images,
and the conversation was recorded. During said conversation, Deputy Kaltenegger asked Fairfield County, Case No. 2023 CA 00031 3
the appellant about the emails. The appellant admitted that the email address in question
was his, and admitted to composing the emails, but said that “those emails shouldn’t have
gone through,” stating that he had “cancelled” them.
{¶6} On August 26, 2022, the appellant was charged with one count of
Telecommunications Harassment in violation of R.C. 2917.21, a misdemeanor of the first
degree; and, one count of Nonconsensual Dissemination of Private Sexual Images of
Another in violation of R.C. 2917.211, a misdemeanor of the third degree. The appellant
entered a “not guilty” plea to both counts on September 27, 2022, and waived his right to
a speedy trial. The trial court appointed counsel for the appellant.
{¶7} A bench trial took place on July 14, 2023, at which the court heard testimony
from R.S., J.M., Deputy Kaltenegger, and the appellant. The appellant was found guilty
on both counts. He was sentenced to 170 days in jail with 140 days suspended on the
telecommunications offense, and 50 days in jail with 20 suspended on the dissemination
offense, for a total of 60 days in jail; two years’ probation; and, a fine of $25.00 on each
count, for a total fine of $50.00. With regard to the appellant’s jail sentence, the trial court
took into consideration that the appellant had a full-time job, a new wife, and sole custody
of a special needs child, and therefore held that the appellant could break the 60-day jail
sentence into sets of 10 days, 30 days of which needed to be served by November 1,
2023, and the remaining 30 days of which needed to be served by March 1, 2024. In
addition, the trial court allowed the appellant to pay the fines over time.
{¶8} The appellant filed an appeal pro se, and sets forth the following
assignments of error: Fairfield County, Case No. 2023 CA 00031 4
{¶9} “I. INEFFECTIVE ASSISTANCE OF COUNSEL (REFERENCED IN BRIEF,
SECTION I): THE DEFENSE COUNSEL, MR. JEFF BLOSSER, PROVIDED
INEFFECTIVE ASSISTANCE IN VIOLATION OF THE SIXTH AMENDMENT AS
ARTICULATED IN STRICKLAND V. WASHINGTON, 466 U.S. 668 (1984). THE
COUNSEL'S PERFORMANCE FELL BELOW AN OBJECTIVE STANDARD OF
REASONABLENESS, AND THIS DEFICIENT PERFORMANCE PREJUDICED THE
DEFENSE. SPECIFIC INSTANCES ARE DETAILED IN THE TRIAL TRANSCRIPTS
(PAGE 15, LINES 3-11; PAGE 21, LINES 11-17; PAGE 23, LINE 9; PAGE 33-34; PAGE
36, LINES 8-12; PAGE 38, LINES 11-18; PAGE 39, LINES 1-7).”
{¶10} “II. INSUFFICIENT EVIDENCE TO PROVE GUILT BEYOND A
REASONABLE DOUBT (REFERENCED IN BRIEF, SECTION II): THE PROSECUTION
FAILED TO MEET ITS BURDEN OF PROVING GUILT BEYOND A REASONABLE
DOUBT, AS REQUIRED BY THE STANDARD SET FORTH IN STATE V. JENKS (1991),
61 OHIO ST.3D 259. THE EVIDENCE PRESENTED WAS INSUFFICIENT, LEAVING
SIGNIFICANT GAPS AND CONTRADICTIONS THAT UNDERMINE THE
PROSECUTION'S CASE. KEY POINTS ARE HIGHLIGHTED IN THE TRIAL
TRANSCRIPTS (PAGE 13, LINES 15-17; PAGE 24, LINES 9-16; PAGE 28-32; PAGE
32, LINES 18,19; PAGE 33, LINES 1-4).”
{¶11} “III. SENTENCING ERRORS (REFERENCED IN BRIEF, SECTION III):
THE SENTENCE IMPOSED BY THE TRIAL COURT IS DISPROPORTIONATE,
CONSTITUTING CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION OF THE
EIGHTH AMENDMENT TO THE U.S. CONSTITUTION AND FAILING TO ALIGN WITH
OHIO STATE STATUTES O.R.C 2929.21 AND 2929.22 ON MISDEMEANOR Fairfield County, Case No. 2023 CA 00031 5
SENTENCING. THE SENTENCING REMARKS AND IMPLICATIONS ARE FOUND IN
THE TRIAL TRANSCRIPTS (PAGE 56, LINES 9-20; PAGE 59, LINES 20-23 PAGE 60,
LINES 1-5).”
{¶12} “IV. JUDICIAL BIAS VIOLATING DUE PROCESS AND FAIR TRIAL
RIGHTS (REFERENCED IN BRIEF, SECTION IV): THE TRIAL PROCEEDINGS WERE
MARRED BY CLEAR INDICATIONS OF JUDICIAL BIAS, PARTICULARLY FAVORING
ONE OF THE VICTIMS, MR. SUMMERS. THIS BIAS UNDERMINED THE FAIRNESS
AND IMPARTIALITY OF THE TRIAL, CONSTITUTING A VIOLATION OF THE
APPELLANT'S CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL AS
GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS. INSTANCES OF
BIAS ARE EVIDENT IN THE TRIAL TRANSCRIPTS (PAGE 10, LINES 4-17; PAGE 11,
LINES 1-4; PAGE 38, LINES 11-18; PAGE 39, LINES 1-7; PAGE 57, LINES 6-7; PAGE
59, LINES 2-4; PAGE 57, LINES 3-5; LINES 8-9).”
ASSIGNMENT OF ERROR NUMBER ONE
{¶13} The appellant argues in his first assignment of error that his trial counsel
was ineffective. We disagree.
Standard Of Review
{¶14} The standard of review for ineffective assistance of counsel was set forth in
the seminal case of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984), and was discussed by this court in Mansfield v. Studer, 5th Dist. Richland
Nos. 2011-CA-93 and 2011-CA-94, 2012-Ohio-4840:
A claim of ineffective assistance of counsel requires a two-prong
analysis. The first inquiry is whether counsel's performance fell below an Fairfield County, Case No. 2023 CA 00031 6
objective standard of reasonable representation involving a substantial
violation of any of defense counsel's essential duties to appellant. The
second prong is whether the appellant was prejudiced by counsel's
ineffectiveness. Lockhart v. Fretwell (1993), 506 U.S. 364, 113 S.Ct. 838
(1993); Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct.
2052(1984); State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d
373(1989).
In order to warrant a finding that trial counsel was ineffective, the
petitioner must meet both the deficient performance and prejudice prongs
of Strickland and Bradley. Knowles v. Mirzayance, 556 U.S. 111, 129 S.Ct.
1411, 1419, 173 L.Ed.2d 251(2009).
To show deficient performance, appellant must establish that
“counsel's representation fell below an objective standard of
reasonableness.” Strickland v. Washington, 466 U.S. at 688, 104 S.Ct. at
2064. This requires showing that counsel made errors so serious that
counsel was not functioning as the “counsel” guaranteed the defendant by
the Sixth Amendment. Strickland v. Washington 466 U.S. at 687, 104 S.Ct.
at 2064. Counsel also has a duty to bring to bear such skill and knowledge
as will render the trial a reliable adversarial testing process. Strickland v.
Washington 466 U.S. at 688, 104 S.Ct. 2052 at 2065.
Thus, a court deciding an actual ineffectiveness claim must
judge the reasonableness of counsel's challenged conduct on
the facts of the particular case, viewed as of the time of counsel's Fairfield County, Case No. 2023 CA 00031 7
conduct. A convicted defendant making a claim of ineffective
assistance must identify the acts or omissions of counsel that are
alleged not to have been the result of reasonable professional
judgment. The court must then determine whether, in light of all
the circumstances, the identified acts or omissions were outside
the wide range of professionally competent assistance. In
making that determination, the court should keep in mind that
counsel's function, as elaborated in prevailing professional
norms, is to make the adversarial testing process work in the
particular case. At the same time, the court should recognize that
counsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of
reasonable professional judgment.
Strickland v. Washington, 466 U.S. 668 at 689,104 S.Ct. at 2064.
In light of “the variety of circumstances faced by defense counsel
[and] the range of legitimate decisions regarding how best to represent a
criminal defendant,” the performance inquiry necessarily turns on “whether
counsel's assistance was reasonable considering all the circumstances.”
Strickland v. Washington, 466 U.S. 668 at 689,104 S.Ct. at 2064. At all
points, “[j]udicial scrutiny of counsel's performance must be highly
deferential.” Strickland v. Washington, 466 U.S. 668 at 689,104 S.Ct. at
2064. Fairfield County, Case No. 2023 CA 00031 8
Studer, supra, at ¶¶ 58-61. Thus, in order to prevail on an ineffective assistance of counsel
argument the appellant must establish two prongs: first, that his trial counsel’s
performance fell below an objective standard of reasonable representation involving a
substantial violation of an essential duty to the appellant; and second, that the appellant
was prejudiced by such the alleged ineffectiveness.
Analysis
{¶15} The appellant was accused of sending R.S. two emails, each with a
suggestive message together with an attached photograph depicting his sister-in-law J.M.
nude and engaged in a sexual act. R.S. called law enforcement upon receipt of the emails
and filed a report.
{¶16} The investigating officer spoke with R.S. He also spoke with J.M., who
stated that while she consented to the taking of the photographs in the private context of
her relationship with the appellant, she did not consent to them being disseminated to any
other individuals. When questioned by law enforcement, the appellant acknowledged that
the email address in question was his, and acknowledged that he created the email
message in question. He asserted, however, that he did not send the email, but rather,
“cancelled” it.
{¶17} The appellant submits that his trial counsel was ineffective based upon the
following: he failed to communicate with the appellant sufficiently in preparation for the
development of the case and trial; he engaged in insufficient defense strategy which was
not tailored to the complexities of the case; he neglected to challenge the appellee’s
narrative effectively; and, he was unprofessional during trial, “as illustrated by the fact that
he asked the appellant for questions to ask during trial.” Fairfield County, Case No. 2023 CA 00031 9
{¶18} The evidence does not support the proposition that the appellant’s trial
counsel failed to communicate with him sufficiently to prepare for trial. The appellant’s
trial counsel personally met with him, and engaged in two telephone calls with him. In
addition, the appellant’s trial counsel appeared with him at pretrials and/or status
conferences, and therefore had an opportunity to converse with him regarding the case
before, during, and after those proceedings.
{¶19} The appellant further argues that his trial counsel failed to engage in
sufficient lines of questioning, failed to object, and failed to raise alleged forensic issues.
However, these are strategic assessments, and cannot provide the bases for reversal,
particularly without a showing of prejudice. As set forth in Strickland, supra,
“[r]epresentation is an art, and an act or omission that is unprofessional in one case may
be sound or even brilliant in another.” Id. at 693.
{¶20} In addition, the appellant’s trial counsel argued, during both cross-
examination of the appellee’s witnesses and direct examination of the appellant, that
there was a distinction between creating a message and sending a message. The trier of
fact, in this case the trial court, simply did not find the appellant’s argument in this regard
to be credible. This does not render the appellant’s counsel ineffective; rather, it means
the trial court found that the appellant lacked veracity.
{¶21} Finally, the appellant argues that his trial counsel ineffectively argued for
acquittal. It is axiomatic that when reviewing a Crim.R. 29 motion the evidence is viewed
in the light most favorable to the State. In this case, the appellant admitted that he was in
possession of the obscene photographs of the victim, admitted that the email address in
question was his email address, and admitted that he composed the email messages. He Fairfield County, Case No. 2023 CA 00031 10
testified that he “cancelled” the emails, and therefore was not guilty of the offenses. The
trier of fact simply did not believe him. This does not rise to the level of ineffective
assistance of counsel.
{¶22} The appellant cannot overcome the first prong of the Strickland test, let
alone show prejudice as required by the second. As such, his first assignment of error is
without merit.
ASSIGNMENT OF ERROR NUMBER TWO
{¶23} The appellant argues in his second assignment of error that the decision of
the trial court was not supported by sufficient evidence. We disagree.
{¶24} Sufficiency of the evidence was addressed by the Ohio Supreme Court in
State v. Worley, 164 Ohio St.3d. 589, 2021-Ohio-2207, 174 N.E.3d 754:
The test for sufficiency of the evidence 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. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492
(1991), paragraph two of the syllabus, superseded by constitutional
amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89,
102, 684 N.E.2d 668 (1997), fn. 4, and following Jackson v. Virginia, 443
U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “ ‘Proof beyond a
reasonable doubt’ is proof of such character that an ordinary person would
be willing to rely and act upon it in the most important of the person's own
affairs.” R.C. 2901.05(E). A sufficiency-of-the-evidence challenge asks Fairfield County, Case No. 2023 CA 00031 11
whether the evidence adduced at trial “is legally sufficient to support the jury
verdict as a matter of law.” State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-
4215, 954 N.E.2d 596, ¶ 219.
Id. at ¶57.
{¶25} Thus, a review of the constitutional sufficiency of evidence to support a
criminal conviction requires a court of appeals to determine whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.
{¶26} R.C. 2917.21 addresses Telecommunications Harassment, and provides in
pertinent part:
(A) No person shall knowingly make or cause to be made a
telecommunication, or knowingly permit a telecommunication to be made
from a telecommunications device under the person's control, to another, if
the caller does any of the following:
(1) Makes the telecommunication with purpose to harass,
intimidate, or abuse any person at the premises to which the
telecommunication is made, whether or not actual communication takes
place between the caller and a recipient;
(2) Describes, suggests, requests, or proposes that the caller, the
recipient of the telecommunication, or any other person engage in sexual
activity, and the recipient or another person at the premises to which the
telecommunication is made has requested, in a previous Fairfield County, Case No. 2023 CA 00031 12
telecommunication or in the immediate telecommunication, that the caller
not make a telecommunication to the recipient or to the premises to which
the telecommunication is made;
* * *
(6) Knowingly makes any comment, request, suggestion, or
proposal to the recipient of the telecommunication that is threatening,
intimidating, menacing, coercive, or obscene with the intent to abuse,
threaten, or harass the recipient;
(B)(1) No person shall make or cause to be made a
telecommunication, or permit a telecommunication to be made from a
telecommunications device under the person's control, with purpose to
abuse, threaten, or harass another person.
(2) No person shall knowingly post a text or audio statement or an
image on an internet web site or web page for the purpose of abusing,
threatening, or harassing another person.
(C)(1) Whoever violates this section is guilty of telecommunications
harassment.
(2) A violation of division (A)(1), (2), (3), (5), (6), (7), (8), (9), (10), or
(11) or (B) of this section is a misdemeanor of the first degree on a first
offense and a felony of the fifth degree on each subsequent offense.
(3) Except as otherwise provided in division (C)(3) of this section, a
violation of division (A)(4) of this section is a misdemeanor of the first degree Fairfield County, Case No. 2023 CA 00031 13
on a first offense and a felony of the fifth degree on each subsequent
offense. If a violation of division (A)(4) of this section results in economic
harm of one thousand dollars or more but less than seven thousand five
hundred dollars, telecommunications harassment is a felony of the fifth
degree. If a violation of division (A)(4) of this section results in economic
harm of seven thousand five hundred dollars or more but less than one
hundred fifty thousand dollars, telecommunications harassment is a felony
of the fourth degree. If a violation of division (A)(4) of this section results in
economic harm of one hundred fifty thousand dollars or more,
telecommunications harassment is a felony of the third degree.
(G) As used in this section:
(2) “Caller” means the person described in division (A) of this
section who makes or causes to be made a telecommunication or who
permits a telecommunication to be made from a telecommunications device
under that person's control.
(3) “Telecommunication” and “telecommunications device” have
the same meanings as in section 2913.01 of the Revised Code.1
1 R.C. 2913.01 provides the following definitions: “ ‘Telecommunication’ means the origination, emission,
dissemination, transmission, or reception of data, images, signals, sounds, or other intelligence or equivalence of intelligence of any nature over any communications system by any method, including, but not limited to, a fiber optic, electronic, magnetic, optical, digital, or analog method.” “ ‘Telecommunications device’ means any instrument, equipment, machine, or other device that facilitates telecommunication, including, but not limited to, a computer, computer network, computer chip, computer circuit, scanner, telephone, cellular telephone, pager, personal communications device, transponder, receiver, radio, modem, or device that enables the use of a modem.” Fairfield County, Case No. 2023 CA 00031 14
(4) “Sexual activity” has the same meaning as in section 2907.01
of the Revised Code.
(5) “Family or household member” means any of the following:
(a) Any of the following who is residing or has resided with the
recipient of the telecommunication against whom the act prohibited in
division (A)(9) of this section is committed:
(i) A spouse, a person living as a spouse, or a former spouse of
the recipient;
(ii) A parent, a foster parent, or a child of the recipient, or another
person related by consanguinity or affinity to the recipient;
(iii) A parent or a child of a spouse, person living as a spouse, or
former spouse of the recipient, or another person related by consanguinity
or affinity to a spouse, person living as a spouse, or former spouse of the
recipient.
(6) “Person living as a spouse” means a person who is living or has
lived with the recipient of the telecommunication against whom the act
prohibited in division (A)(9) of this section is committed in a common law
marital relationship, who otherwise is cohabiting with the recipient, or who
otherwise has cohabited with the recipient within five years prior to the date
of the alleged commission of the act in question.
(7) “Cable operator” has the same meaning as in section 1332.21 of
the Revised Code. Fairfield County, Case No. 2023 CA 00031 15
{¶27} R.C. 2917.211 addresses the Nonconsensual Dissemination of Private
Sexual Images of Another, and provides in pertinent part:
(A) As used in this section:
(1) “Disseminate” means to post, distribute, or publish on a
computer device, computer network, web site, or other electronic device or
medium of communication.
(2) “Image” means a photograph, film, videotape, digital
recording, or other depiction or portrayal of a person.
(3) “Interactive computer service” has the meaning defined in the
“Telecommunications Act of 1996,” 47 U.S.C. 230, as amended.
(4) “Internet provider” means a provider of internet service,
including all of the following:
(a) Broadband service, however defined or classified by the
federal communications commission;
(b) Information service or telecommunications service, both as
defined in the “Telecommunications Act of 1996,” 47 U.S.C.
153, as amended;
(c) Internet protocol-enabled services, as defined in section
4927.01 of the Revised Code.
(5) “Mobile service” and “telecommunications carrier” have the
meanings defined in 47 U.S.C. 153, as amended. Fairfield County, Case No. 2023 CA 00031 16
(6) “Cable service provider” has the same meaning as in section
1332.01 of the Revised Code.
(7) “Direct-to-home satellite service” has the meaning defined in
47 U.S.C. 303, as amended.
(8) “Video service provider” has the same meaning as in section
1332.21 of the Revised Code.
(9) “Sexual act” means any of the following:
(a) Sexual activity;
(b) Masturbation;
(c) An act involving a bodily substance that is performed
for the purpose of sexual arousal or gratification;
(d) Sado-masochistic abuse.
(B) No person shall knowingly disseminate an image of another
person if all of the following apply:
(1) The person in the image is eighteen years of age or older.
(2) The person in the image can be identified from the image itself
or from information displayed in connection with the image and the offender
supplied the identifying information.
(3) The person in the image is in a state of nudity or is engaged
in a sexual act.
(4) The image is disseminated without consent from the person
in the image. Fairfield County, Case No. 2023 CA 00031 17
(5) The image is disseminated with intent to harm the person in
the image.
(E) Any conduct that is a violation of this section and any other
section of the Revised Code may be prosecuted under this section, the
other section, or both sections.
(F)(1)(a) Except as otherwise provided in division (F)(1)(b), (c), or (d)
of this section, whoever violates this section is guilty of nonconsensual
dissemination of private sexual images, a misdemeanor of the third
degree….
{¶28} The culpable mental state for both offenses is “knowingly”, which is defined
by R.C. 2901.22 as follows:
(B) A person acts knowingly, regardless of purpose, when the person
is aware that the person's conduct will probably cause a certain result or will
probably be of a certain nature. A person has knowledge of circumstances
when the person is aware that such circumstances probably exist. When
knowledge of the existence of a particular fact is an element of an offense,
such knowledge is established if a person subjectively believes that there is
a high probability of its existence and fails to make inquiry or acts with a
conscious purpose to avoid learning the fact.
{¶29} The appellee presented at trial the testimony of the complaining witness,
R.S., who identified the emails and the photographs that were attached thereto, and
testified that he felt harassed by the obscene photos; and, the appellant’s ex-girlfriend, Fairfield County, Case No. 2023 CA 00031 18
J.M., who was over the age of eighteen, who was depicted in the photographs nude and
engaged in sexual activity, and who testified that she did not consent to dissemination of
the photographs. The appellee also cross-examined the appellant, who conceded that
the email address from which the photographs were sent was his email address, and
conceded that he composed the messages. The trial court did not find his testimony that
he “cancelled” the email messages to be credible.
{¶30} We find that, after viewing the evidence in the light most favorable to the
appellee, any rational trier of fact could have found that the essential elements of the
crimes of Telecommunications Harassment and Nonconsensual Dissemination of Private
Sexual Images of Another beyond a reasonable doubt. As such, we find that the
appellant’s guilty verdict on said charges is supported by sufficient evidence, and his
second assignment of error is without merit.
ASSIGNMENT OF ERROR NUMBER THREE
{¶31} The appellant argues in his third assignment of error that the trial court erred
in imposing sentencing. We disagree.
{¶32} “Generally, misdemeanor sentencing is within the sound discretion of the
trial court and will not by disturbed upon review if the sentence is within the limits of the
applicable statute. State v. Schreiber, 5th Dist. Licking No. 2022 CA 000098, 2023-Ohio-
1864, ¶11, citing State v. Thadur, 5th Dist. Ashland No. 15 COA 018, 2016-Ohio-417, 59
N.E.3d 602, ¶11, internal citations omitted. An abuse of discretion connotes more than
an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary
or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 Fairfield County, Case No. 2023 CA 00031 19
(1983). There is no requirement that a trial court, in sentencing on misdemeanor offenses,
specifically state its reasons on the record. State v. Harpster, 5th Dist. Ashland No.
04COA061, 2005-Ohio-1046, ¶20.
{¶33} R.C. § 2929.22 governs misdemeanor sentencing, and states in pertinent
part:
(B)(1) In determining the appropriate sentence for a misdemeanor,
the court shall consider all of the following factors:
(a) The nature and circumstances of the offense or offenses;
(b) Whether the circumstances regarding the offender and the
offense or offenses indicate that the offender has a history of persistent
criminal activity and that the offender's character and condition reveal a
substantial risk that the offender will commit another offense;
(c) Whether the circumstances regarding the offender and the
offense and offenses indicate that the offender's history, character, and
condition reveal a substantial risk that the offender will be a danger to others
and that the offender's conduct has been characterized by a pattern of
repetitive, compulsive, or aggressive behavior with heedless indifference to
the consequences;
(d) Whether the victim's youth, age, disability, or other factor
made the victim particularly vulnerable to the offense or made the impact of
the offense more serious; Fairfield County, Case No. 2023 CA 00031 20
(e) Whether the offender is likely to commit future crimes in
general, in addition to the circumstances described in divisions (B)(1)(b) and
(c) of this section.
(2) In determining the appropriate sentence for a misdemeanor, in
addition to complying with division (B)(1) of this section, the court may
consider any other factors that are relevant to achieving the purposes and
principles of sentencing set forth in section 2929.21 of the Revised Code.
(C) Before imposing a jail term as a sentence for a misdemeanor, a
court shall consider the appropriateness of imposing a community control
sanction or a combination of community control sanctions under sections
2929.25, 2929.26, 2929.27, and 2929.28 of the Revised Code. A court may
impose the longest jail term authorized under section 2929.24 of the
Revised Code only upon offenders who commit the worst forms of the
offense or upon offenders whose conduct and response to prior sanctions
for prior offenses demonstrate that the imposition of the longest jail term is
necessary to deter the offender from committing a future criminal offense.
{¶34} R.C. § 2929.21 is referenced in R.C. § 2929.22(B)(2), and states in pertinent
(A) A court that sentences an offender for a misdemeanor or
minor misdemeanor violation of any provision of the Revised Code, or of
any municipal ordinance that is substantially similar to a misdemeanor or
minor misdemeanor violation of a provision of the Revised Code, shall be Fairfield County, Case No. 2023 CA 00031 21
guided by the overriding purposes of misdemeanor sentencing. The
overriding purposes of misdemeanor sentencing are to protect the public
from future crime by the offender and others and to punish the offender. To
achieve those purposes, the sentencing court shall consider the impact of
the offense upon the victim and the need for changing the offender's
behavior, rehabilitating the offender, and making restitution to the victim of
the offense, the public, or the victim and the public.
{¶35} There is nothing in the misdemeanor sentencing statutes that require the
trial court to set forth its analysis regarding the purposes and principles of sentencing.
Rather, we presume that the trial court considered the factors unless the record
affirmatively shows that the court failed to consider the purposes of sentencing, or the
sentence is strikingly inconsistent with the relevant considerations. State v. James, 7th
Dist. Columbiana No. 07CO47, 2009-Ohio-4392, ¶50 (in a felony case), relying on State
v. Adams, 37 Ohio St.3d 295, 525 N.E.2d 1361 (1988). In this case, however, the trial
court discussed its reasoning behind the sentence it imposed.
{¶36} The appellant contends that the record does not support the imposition of
his sentence. During sentencing the trial court noted that the victim, J.M.’s brother-in-
law, was simply minding his own business in his own home, and “next thing he knows,
he’s got naked pictures of his sister-in-law.” The trial court reviewed on the record the
purposes behind the misdemeanor sentencing statutes, noting inter alia that “the
overriding purposes of misdemeanor sentencing are to protect the public and future crime
by the offender, and others, and to punish the offender.” The sentence imposed upon the
appellant – a total of 60 days in jail to be served in 10-day increments over a seven and Fairfield County, Case No. 2023 CA 00031 22
one-half month time period - is within the statutory parameters and achieves the
overriding purposes of misdemeanor sentencing.
{¶37} Further, R.C. 2929.28 allows for the imposition of financial sanctions for
misdemeanor offenses, stating in pertinent part that “[i]n addition to imposing court costs
pursuant to section 2947.23 of the Revised Code, the court imposing a sentence upon an
offender for a misdemeanor, including a minor misdemeanor, may sentence the offender
to any financial sanction or combination of financial sanctions authorized under this
section.” The fines imposed upon the appellant – totaling $50.00 to be paid over time – is
also within the statutory parameters, and achieves the overriding purposes of
misdemeanor sentencing.
{¶38} Upon review of the entire record, we find that the trial court did not abuse
its discretion in sentencing the appellant. The sentence imposed was reasonable and
within statutory parameters. The trial court's decision was neither arbitrary,
unconscionable, nor unreasonable. Accordingly, the appellant's assignment of error
number three is without merit.
ASSIGNMENT OF ERROR NUMBER FOUR
{¶39} The appellant argues in his fourth assignment of error that the trial court
engaged in judicial bias which undermined his right to a fair and impartial trial. We
disagree.
{¶40} The appellant argues that the trial court exhibited judicial bias against him
by actively encouraging R.S. to express negative opinions about the appellant, and by
admonishing the appellant when he audibly responded during R.S.’s testimony, thus
creating a double standard; that the trial court inappropriately excluded evidence of a well- Fairfield County, Case No. 2023 CA 00031 23
check on J.M. as irrelevant; and, that the trial court expressed undue concern for victim
R.S. and not enough concern for victim J.M. He submits that the cumulative effect of
these actions of judicial bias rise to the level of a violation of his “due process and fair trial
rights.”
{¶41} The issue of judicial bias was recently discussed by this Court in State v.
Baker, 5th Dist. Muskingum No. CT2023-0019, 2024-Ohio-906:
“The inquiry [for judicial bias] is an objective one. The court asks not
whether the judge is actually, subjectively biased, but whether the average
judge in his position is ‘likely’ to be neutral, or whether there is an
unconstitutional ‘potential for bias.’ ” Caperton v. A.T. Massey Coal Co.,
Inc., 556 U.S. 868, 881, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009).
Moreover, “judicial rulings alone almost never constitute a valid basis for a
bias or partiality motion,” but instead, “[a]lmost invariably are proper
grounds for appeal, not recusal.” Liteky v. United States, 510 U.S. 540, 555,
114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). Likewise, “opinions formed by the
judge on the basis of facts introduced or events occurring in the course of
the current proceedings, or of prior proceedings, do not constitute a basis
for a bias or partiality motion unless they display a deep-seated favoritism
or antagonism that would make fair judgment impossible.” Id. at 555, 114
S.Ct. 1147. See, State v. Morrow, 5th Dist. Muskingum No. CT2021-0053,
2022-Ohio-1089, ¶43.
Judicial bias is demonstrated by “a hostile feeling or spirit of ill will or
undue friendship or favoritism toward one of the litigants or his attorney, Fairfield County, Case No. 2023 CA 00031 24
with the formation of a fixed anticipatory judgment on the part of the judge,
as contradistinguished from an open state of mind which will be governed
by the law and [the] facts.” State v. Jackson, 149 Ohio St.3d 55, 2016-Ohio-
5488, ¶ 33, 73 N.E.3d 414, quoting State ex rel. Pratt v. Weygandt, 164
Ohio St. 463, 132 N.E.2d 191 (1956), paragraph four of the syllabus.
“A judge is presumed to follow the law and not to be biased, and the
appearance of bias or prejudice must be compelling to overcome these
presumptions.” In re Disqualification of George, 100 Ohio St.3d 1241, 2003-
Ohio-5489, ¶ 5, 798 N.E.2d 23. Moreover, a party that seeks to establish
bias bears the burden of overcoming that presumption. Coley v. Bagley, 706
F.3d 741, 751 (6th Cir. 2013).
Baker does not cite to any statement made by the trial judge during
the sentencing hearing or the hearing on her petition for postconviction relief
to demonstrate bias. Mere evidence of distain for the defendant is not
enough,
The judge who presides at a trial may, upon completion of the
evidence, be exceedingly ill disposed towards the defendant, who
has been shown to be a thoroughly reprehensible person. But the
judge is not thereby recusable for bias or prejudice, since his
knowledge and the opinion it produced were properly and
necessarily acquired in the course of the proceedings, and are
indeed sometimes (as in a bench trial) necessary to completion of Fairfield County, Case No. 2023 CA 00031 25
the judge's task. As Judge Jerome Frank pithily put it: “Impartiality is
not gullibility. Disinterestedness does not mean child-like innocence.
If the judge did not form judgments of the actors in those court-house
dramas called trials, he could never render decisions.” In re J.P.
Linahan, Inc., 138 F.2d 650, 654 (C.A. 2 1943).
Liteky v. United States, 510 U.S. at 550-551, 114 S.Ct. 1147, 127 L.Ed.2d
474 (1994).
As we have found in our disposition of Baker's First Assignment of
Error, the trial judge did listen to and consider Dr. Stinson's testimony. We
do not find evidence in the record which would overcome the strong
presumption that the trial judge was free of bias or prejudice against Baker
or that establishes the trial judge's conduct denied Baker her right to due
process.
Id. at ¶¶ 73-76. The Baker Court found that the appellant had failed to point to compelling
evidence in the record that the trial judge was biased or “that there was an unconstitutional
“potential for bias” that seriously affected the fairness, integrity, or public reputation of the
sentencing hearing or the hearing on her petition for postconviction relief.” Id. at ¶77.
{¶42} So, too, has the appellant herein failed to make such a showing. The record
does not reflect that the trial court actively encouraged R.S. to express negative opinions
about the appellant. While the trial court did admonish the appellant at one point during
the proceedings when he audibly responded during R.S.’s testimony, a trial judge
possesses the authority to exercise control over proceedings. Further, because the matter Fairfield County, Case No. 2023 CA 00031 26
was tried to the bench there is no concern that a jury might misconstrue the
admonishment.
{¶43} In addition, it is well within the trial court’s discretion to exclude evidence
that finds to be irrelevant, and so long as the trial court does not abuse its discretion in
this regard its decision will not be reversed. There was no abuse of discretion in this case,
as the issues herein surrounded the harassing emails and obscene photographs that the
appellant sent to R.S., and not the impact of a well check that may have been made which
was unrelated to the emails and photos.
{¶44} Finally, the record simply does not reflect that the trial court showed
“disproportionate concern for” R.S. and a lack of concern for J.M. such that judicial bias
is established. Accordingly, the appellant’s fourth assignment of error is without merit.
CONCLUSION Fairfield County, Case No. 2023 CA 00031 27
{¶45} Based upon the foregoing, we find the appellant’s four assignments of error
are without merit and are therefore overruled. The judgment of the Fairfield County
Municipal Court is hereby affirmed.
By: Baldwin, J.
Gwin, P.J. and
King, J. concur.