[Cite as State v. Wiggers, 2026-Ohio-1410.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY
STATE OF OHIO, : : Case Nos. 25CA5 & 25CA10 Plaintiff-Appellee, : : v. : : DAVID S. WIGGERS, SR., : DECISION AND JUDGMENT : ENTRY Defendant-Appellant. : : RELEASED: 04/08/2026 ________________________________________________________________ APPEARANCES:
Brian T. Goldberg, Cincinnati, Ohio, for appellant.
Nicole Coil, Washington County Prosecuting Attorney, and Kelsey R. Riffle, Washington County Assistant Prosecuting Attorney, Marietta, Ohio, for appellee.
Wilkin, J.
{¶1} This is a consolidated appeal from two Washington County Court of
Common Pleas judgment entries. In Case No. 23CA5, David S. Wiggers, Sr.
(“appellant”) was convicted of domestic violence, a fourth-degree felony, under
R.C. 2929.25(A). In this case, appellant presents two assignments of error,
challenging both the sufficiency and manifest weight of his conviction. In Case
No. 23CA10, appellant was found to have violated his community control, and, as
a result, the trial court revoked his community control and imposed a 15-month
prison sentence. Appellant argues on appeal that the revocation of community
control and imposition of a prison sentence was not supported by the record
because he wanted to discuss the probation rules with his attorney before
signing. Washington App. Nos. 25CA5 and 25CA10 2
{¶2} After reviewing the parties’ arguments, the record, and the
applicable law, we find no merit to appellant’s assignments of error in either case.
Therefore, we affirm the judgment of the trial court in both cases.
BACKGROUND
{¶3} On October 25, 2023, appellant was indicted on a single count of
domestic violence, a fourth-degree felony under R.C. 2919.25(A). He waived his
right to a jury trial, and the case proceeded to a bench trial on November 19,
2024. At the trial, the State called the following witnesses: Phillip J. Wiggers
(“Phillip”) his son Phillip N. Wiggers (“Phillip N.”), and Deputy Thornberry. The
defense called appellant to testify.
{¶4} Phillip was the first to testify. He indicated that he is appellant’s
brother. He testified that on October 1, 2023, he went to 35 Ridgewood
Boulevard, in Belpre, Ohio, to retrieve a trailer frame left to him by his father. He
stated that the property is jointly owned by his mother, sister, appellant, and
himself, with appellant residing in the house on the property. Phillip was
accompanied by his youngest son, Ethan, and his oldest son, Phillip N., who
arrived later. Upon arrival, they went directly to the trailer to prepare the frame
for removal, but found it secured with cables and blocks. Thus, Phillip told his
son to grab a pair of bolt cutters to cut the cable. Phillip testified that as they
were preparing to cut the cable, appellant came out of the house swinging an axe
handle and threatening to “kill a couple assholes.” Phillip indicated that this got
his attention because appellant was “dangerous.” Phillip stated that appellant Washington App. Nos. 25CA5 and 25CA10 3
swung the axe handle at him but missed, allowing Phillip to grab the handle and
strike appellant with his fist.
{¶5} Phillip further testified that after the initial confrontation, he pushed
appellant against a building to prevent him from recovering and retaliating.
Appellant’s back was up against the building, causing them to be face-to-face.
Phillip stated that appellant's “body weight had come down on me[,]” preventing
him from getting up, causing injury to his hamstring. Phillip started hollering for
help. His son Ethan intervened and wrestled appellant to the ground. Phillip
stated that he told Ethan to let appellant up, and when he did, appellant lunged at
Phillip again. As they fought, Ethan intervened again and was able to get
appellant on the ground. Phillip stated that appellant then left the scene and did
not return.
{¶6} Phillip confirmed that neither he, nor his sons, used the axe handle
or any other weapon against appellant. He also mentioned that he sought
medical treatment for his hamstring injury, which required surgery and resulted in
an infection, necessitating further medical care.
{¶7} During the cross-examination, Phillip acknowledged that he did not
inform appellant of his visit and hoped he would not be home to avoid any
confrontation. Phillip also had asked his mother to be at the property as a
peacekeeper, but she did not arrive until after the altercation. Phillip further
indicated that he did not believe the trailer was titled, but it was “in [his] father’s
name at the time.” Washington App. Nos. 25CA5 and 25CA10 4
{¶8} Phillip admitted to grabbing the axe handle with his left hand and
punching appellant with his right hand in an attempt to stop him. He confirmed
that appellant did not hit him with the axe handle, nor kick or punch him during
the altercation. Phillip stated that he hit appellant at least six to eight times. He
did not recall appellant losing consciousness but mentioned that his son Ethan
might have restrained appellant, possibly causing his rib injury.
{¶9} Further, Phillip denied taking appellant ’s keys or phone, stating
they were on the ground and were given to the sheriff. However, he
acknowledged that he might have stated that he took the keys to unlock the
trailer but did not remember the exact details. Phillip admitted to causing
appellant’s orbital bone and nose injuries but was unsure about the rib injury.
{¶10} Next to testify was Phillip N., Phillip’s son. On October 1, 2023,
Phillip N. went to 35 Ridgewood Boulevard in Belpre, Ohio, to meet his brother
and father to acquire a trailer. Upon arrival, he observed appellant approaching
his father and brother with what appeared to be a club or axe handle and heard
appellant shouting threats. Phillip N. stated that appellant swung the club at
Phillip and missed, and then Phillip struck appellant. The altercation moved
towards a shed, where Phillip pinned appellant against the building. Phillip N.
noted that his father appeared injured, grabbing his leg and going to the ground,
which led to his brother (Ethan) intervening to control the situation. He did not
see his father or brother pick up any weapons or strike appellant.
{¶11} Phillip N. stated that law enforcement arrived at the scene, and he
spoke to them about the incident. Phillip N. acknowledged that he was there to Washington App. Nos. 25CA5 and 25CA10 5
be a peacekeeper and had previously been a corrections officer. He confirmed
that his father pushed appellant against the shed and that his father's hamstring
injury ended his physical involvement in the altercation.
{¶12} Deputy Thornberry was next to testify. Thornberry is employed by
the Washington County Sheriff's Office and has been working there for two
years, with a total of five years of law enforcement experience. On October 1,
2023, Thornberry responded to a domestic call at 35 Ridgewood Boulevard in
Belpre, Washington County, Ohio. Upon arrival, he observed Phillip lying on the
ground and inquired if he needed medical attention, to which Phillip responded
that he would drive himself later if necessary. Thornberry was not wearing a
bodycam during the incident, so there is no recording of his investigation. Phillip
showed him an axe handle allegedly used during the incident, but Thornberry did
not collect it as evidence. After leaving the 35 Ridgewood Boulevard address,
Thornberry went to another location where appellant was believed to be,
intending to obtain a statement from him. Appellant was in the back of an EMS
vehicle but declined to make a statement because rib pain made it difficult to talk.
However, Thornberry indicated that appellant agreed to provide a statement at a
later date, but he never did. Thornberry observed that appellant appeared dazed
and in pain during their interaction. The Deputy claimed that his decision to
arrest appellant was based on the statements of Phillip and witnesses present at
the scene.
{¶13} However, during cross-examination, Thornberry admitted that he
did not separate the witnesses during the investigation, which is typically Washington App. Nos. 25CA5 and 25CA10 6
recommended in an assault case. Thornberry admitted that he was unaware of
Ethan Wiggers' involvement in the case until the day of the testimony. He also
acknowledged that he did not obtain medical records related to the
incident. Finally, Thornberry confirmed that Phillip, the alleged victim, stated in a
report that he punched and kicked his brother multiple times during the
altercation.
{¶14} Appellant testified that he grew up at 35 Ridgewood Boulevard,
Belpre, Ohio, and has lived there continuously since March 2020. He confirmed
that the property's title includes his mother, himself, his sister, and his brother, all
of whom were in the courtroom. Appellant stated he was retired, but previously
worked as a carpenter and is a United States Navy veteran, having served from
1981 to 1984 at Pearl Harbor, Hawaii. His father passed away in March 2022.
Appellant stated he has one brother (Phillip) and two sisters (Tia and Valissa).
{¶15} Regarding the incident on October 1, 2023, appellant explained the
property situation, referencing a trailer that was once a camper, which he and
others stripped down; he planned on selling the tongue and using beams from it
to repair his house. He told his mother about these intentions the day before the
incident.
{¶16} On the day of the incident, appellant claimed he was sitting in his
living room watching the Browns football game when he noticed Phillip arriving in
a red truck. He claimed that Phillip had a five-or six-foot wooden post. Appellant
grabbed an axe handle from his house and went out to meet his brother, but
purposely did not yell or escalate the situation even though he was irritated. Washington App. Nos. 25CA5 and 25CA10 7
{¶17} Appellant testified that as he approached Phillip, he attempted to
tell him to leave, but before he could say anything, Phillip lunged at him with the
post, striking him in the middle of the chest. Simultaneously, appellant claimed
Phillip’s son (Phillip N.) came from behind, placed an arm around his neck, and
held him. Appellant stated he recognized Phillip N. by his size.
{¶18} Appellant asserted that after Phillip tossed the post aside and while
being held by Phillip N., Phillip punched him in the face, breaking his nose.
Appellant indicated he lost consciousness. Upon regaining consciousness, he
claimed he was lying beside the building with Phillip striking and threatening him.
Appellant said Phillip N. then drove his head back into the ground, likely
fracturing his orbital bone and he again lost consciousness.
{¶19} Appellant described awakening to his dog licking him and sees
Phillip instructing Phillip N. to remove cables from the trailer. Appellant
recounted rolling down a hill into a wooded area, crossing a creek to a neighbor’s
house, where he called for help and collapsed. The homeowner and his son
came to assist him and called 911.
{¶20} Appellant explained that Phillip demanded his phone and keys but
he threw them over Phillip’s head in hopes of creating a distraction to escape.
While at the neighbor’s house, he informed the EMTs, who were treating him,
that he had been hit with a post in the chest, kicked, suffered a broken nose, and
had rib pain.
{¶21} Certified copies of appellant’s medical records were admitted into
evidence as Defendant’s Exhibit D. Appellant read the records which stated that Washington App. Nos. 25CA5 and 25CA10 8
he had been “assaulted by three other men, and he was able to escape them.”
He was “hit multiple times on the left side of his chest and ribs and was knocked
to the ground.” He stated that “he did lose consciousness when he was kicked in
the head and face.”
{¶22} On cross-examination, appellant was questioned about his
statements to EMTs and hospital staff concerning his alcohol and marijuana use
on the day of the incident. On direct examination, appellant testified that he only
had two mixed drinks that contained two shots of alcohol. However, on cross-
examination it was established that his medical records indicated he told the
EMT he had four shots and smoked some marijuana, and that he told the
hospital staff that he had consumed seven to eight shots. Appellant admitted
smoking marijuana and having four shots, but denied telling the hospital staff that
he had seven or eight shots.
{¶23} Upon the completion of appellant ’s testimony, the defense rested,
and the State had no rebuttal witnesses. Closing arguments were then
conducted and the trial judge found appellant guilty as charged. The trial court
sentenced appellant to 5 years of community control, restitution of $19,526.85,
and 120 days in jail. Appellant filed a notice of appeal from this conviction on
February 12, 2025.
{¶24} Subsequent to sentencing, the State filed a complaint charging
appellant with violating his community control because “he failed or refused to
sign his terms and conditions of community control.” On January 28, 2025, the
court held a probable cause hearing on the alleged violation. Appellant waived Washington App. Nos. 25CA5 and 25CA10 9
probable cause and the court set a hearing on February 26, 2025, to resolve the
complaint. The trial court then asked appellant if he understood that “[i]f you
refuse to sign terms and conditions of community control, I have no option but to
send you to prison because I can’t put you on community control.” Appellant
indicated that he understood.
{¶25} On February 26, 2025, the trial court held the community control
violation hearing. The court stated: “All right. So my understanding is [appellant]
wants to admit to the motion and complaint charging a violation of community
control and then argue sentencing?” Appellant’s counsel responded
affirmatively. The court also asked appellant if he admitted to the violation and
appellant responded: “Yes sir.” The court asked appellant if he understood by
admitting to the violation the State no longer had to prove by clear and
convincing evidence that appellant had violated his community control because
“you’re admitting it.” Again, the appellant responded affirmatively. After the court
confirmed that the parties had stipulated that there was a “factual basis for the
violation[,]” it accepted appellant’s admission.
{¶26} The court then proceeded with resentencing appellant. The
prosecutor argued that a prison sentence was appropriate while defense counsel
sought community control. In determining appellant’s sentence, the court
indicated that it “considered the record, the written reports, all oral statements
made, and Ohio laws relating to the sentencing for a felony.” The court further
stated that
it weighed the seriousness and recidivism factors, has considered the overriding purposes of felony sentencing, and that is Washington App. Nos. 25CA5 and 25CA10 10
[necessary] to protect the public from future crime by the [appellant] and others, and to punish [appellant], using the minimum sanctions and that the court determines accomplishes those purposes, without imposing an unnecessary burden on state or local government, and having considered the need for incapacitating the [appellant] deterring the [appellant] from other future crime, rehabilitating the [appellant] and making restitution.
The court also found that appellant had been dishonest after trial and again at
this hearing.
{¶27} The court then expressly revoked appellant’s community control
and found appellant was not amenable to community control. Instead, the court
found that a prison term was consistent with the purposes and principles of
sentencing, and imposed a definite prison term of 15 months with 102 days of
jail-time credit plus transport time, and notified him of optional post-release
control up to 2 years. Appellant filed a notice of appeal from this sentence on
March 13, 2025.
{¶28} We sua sponte consolidated the appeals of his conviction in Case
No. 25CA5 and of his re-sentencing in Case No. 25CA10 for purposes of this
decision.
ASSIGNMENT OF ERROR ONE CASE NO. 25CA5
APPELLANT’S CONVICTION WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE AND WAS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE
{¶29} Appellant argues in his sole assignment of error in Case No. 25CA5
that his conviction for domestic violence was not supported by sufficient evidence
and was contrary to the manifest weight of the evidence. He contends that the Washington App. Nos. 25CA5 and 25CA10 11
State failed to present adequate evidence to prove he committed the offense, as
the trial court did not establish that he caused or attempted to cause physical
harm to his brother, Phillip, a necessary element under R.C. 2919.25(A).
Appellant emphasizes that the trial court's reasoning was based on an alleged
swing at his brother, which he argues was not substantiated. Appellant highlights
that his brother and nephew arrived uninvited to remove a trailer, and his actions
were in response to their unexpected and aggressive behavior.
{¶30} Furthermore, appellant claims that the testimony from the State's
witnesses was inconsistent and did not credibly establish his guilt. He points out
that both witnesses testified he swung an axe handle but missed, while he
testified he did not swing the handle because he was assaulted first and never
had the chance. Appellant argues that he was the victim, suffering significant
injuries, including a broken nose and fractured orbital bone, while his brother,
who initiated the confrontation, was unharmed by any physical act of appellant.
He concludes that the evidence showed his brother was a trespasser looking for
a fight, and thus, the conviction should be vacated.
{¶31} Finally, appellant notes that his neighbor called the police.
Appellant argues that logically, if his brother, Phillip was truly the victim, he would
have called the police.
{¶32} The State argues that appellant's conviction for domestic violence
was supported by sufficient evidence. The State highlights that appellant did not
deny swinging an axe handle at the victim, which was corroborated by both the
victim and an eyewitness. It argues that appellant's claim that he lacked intent to Washington App. Nos. 25CA5 and 25CA10 12
cause harm is “preposterous,” because swinging an axe handle at someone's
head clearly implies an awareness of probable harm. Additionally, the State
notes that appellant’s actions during the altercation, such as putting his weight on
the victim, resulted in injury, further supporting the sufficiency of the evidence.
{¶33} The State also argues that appellant’s conviction is not against the
manifest weight of the evidence. The State maintains that it introduced
substantial evidence for all elements of the offense, and the jury did not lose its
way. The State points out that two witnesses testified consistently that appellant
was the only one with a weapon and that he swung it at the victim's head. The
State disputes appellant's claim that he caused the victim no physical harm,
stating that the victim's injury was a direct result of the appellant's actions.
{¶35} Regarding appellant’s argument that logically Phillip would have
called the police if he were the victim, the State maintains the use of logic rarely
comes into play during a domestic violence situation, nor is it something that the
State must prove. The State also emphasizes that the trial court's ability to
observe witness testimony and note inconsistencies in the appellant's
statements, contrasting them with the consistent testimony of the victim and
eyewitness.
{¶36} Thus, the State concludes that there was both sufficient and
substantial evidence to support the conviction, and the trial court did not err in its
judgment.
A. Law Washington App. Nos. 25CA5 and 25CA10 13
{¶37} Sufficiency of the evidence and manifest weight of the evidence are
distinct concepts and are “ ‘both quantitatively and qualitatively different.’ ”
Eastley v. Volkman, 2012-Ohio-2179, ¶ 10, quoting State v. Thompkins, 78 Ohio
St.3d 380, (1997), paragraph two of the syllabus. “We have stated that
‘sufficiency [of the evidence] is a test of adequacy,’ . . . while weight of the
evidence ‘ “ ‘ . . . depends on its effect in inducing belief.’ ” ’ ” (Second italics
original). In re A.K., 2025-Ohio-2935, ¶ 13 (4th Dist.), quoting Thompkins, at
387, quoting Black's Law Dictionary 1594 (6th Ed.1990). “A determination that a
conviction is supported by the manifest weight of the evidence will also be
dispositive of the issue of sufficiency.” State v. Gonz, 2024-Ohio-5885, ¶ 12 (4th
Dist.), citing State v. Jones, 2013-Ohio-150, ¶ 19 (12th Dist.).
{¶38} “ ‘In determining whether a criminal conviction is against the
manifest weight of the evidence, an appellate court reviews the entire record,
weighs the evidence and all reasonable inferences, considers the credibility of
witnesses, and determines whether in resolving conflicts in the evidence, the jury
clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed.’ ” State v. Coleman, 2026-Ohio-666, ¶ 19 (4th
Dist.), quoting Thompkins at 387, citing State v. Martin, 20 Ohio App.3d 172, 175
(1st Dist. 1983). “ ‘Judgments supported by some competent, credible evidence
going to all the essential elements of the case will not be reversed by a reviewing
court as being against the manifest weight of the evidence.’ ” Id, quoting C.E.
Morris Co. v. Foley Const. Co., 54 Ohio St.2d 279 (1978), syllabus. Washington App. Nos. 25CA5 and 25CA10 14
{¶39} The weight and credibility of evidence are to be determined by the
trier of fact. State v. Kirkland, 2014-Ohio-1966, ¶ 132. The trier of fact “is free to
believe all, part or none of the testimony of any witness,” and we “defer to the
trier of fact on these evidentiary weight and credibility issues because it is in the
best position to gauge the witnesses’ demeanor, gestures, and voice inflections,
and to use these observations to weigh their credibility.” State v. Dillard, 2014-
Ohio-4974, ¶ 28 (4th Dist.), citing State v. West, 2014-Ohio-1941, ¶ 23 (4th
Dist.).
{¶40} In addition, “[a] verdict is not against the manifest weight of the
evidence because the finder of fact chose to believe the State's witnesses.” State
v. Chancey, 2015-Ohio-5585, ¶ 36 (4th Dist.), citing State v. Wilson, 2014-Ohio-
3182, ¶ 24 (9th Dist.), citing State v. Martinez, 2013-Ohio-3189, ¶ 16 (9th Dist.).
“ ‘While the [trier of fact] may take note of inconsistencies and resolve or discount
them accordingly, * * * such inconsistences “sic” do not render defendant's
conviction against the manifest weight or sufficiency of the evidence.’ ” State v.
Corson, 2015-Ohio-5332, ¶ 31 (4th Dist.), quoting State v. Proby, 2015-Ohio-
3364, ¶ 42 (10th Dist.), citing State v. Gullick, 2014-Ohio-1642, ¶ 10 (10th Dist.).
“Accordingly, if the prosecution presented substantial credible evidence
upon which the trier of fact reasonably could conclude, beyond a reasonable
doubt, that the essential elements of the offense had been established, the
judgment of conviction is not against the manifest weight of the evidence.” State
v. Nickell, 2025-Ohio-1232, ¶ 44 (4th Dist.), citing State v. Picklesimer, 2012-
Ohio-1282, ¶ 24 (4th Dist.), citing Volkman, 2012-Ohio-2179, at ¶ 12, quoting Washington App. Nos. 25CA5 and 25CA10 15
Thompkins, 78 Ohio St.3d at 387, quoting Black's Law Dictionary 1594 (6th
Ed.1990). “[A] reviewing court should find a conviction against the manifest
weight of the evidence only in the “ ‘ “exceptional case in which the evidence
weighs heavily against the conviction.” ’ ” Id. at ¶ 45, quoting Thompkins, at 387,
quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist. 1983).
B. Analysis
{¶41} Appellant was convicted of domestic violence in violation of R.C.
2919.25(A), which provides, “No person shall knowingly cause or attempt to
cause physical harm to a family or household member.” Appellant contests that
he knowingly caused or attempted to cause physical harm to his brother; thus,
we will focus on those elements of the offense.
{¶42} “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 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.” R.C. R.C. 2901.22(B).
{¶43} “ ‘When determining whether a defendant acted knowingly, his state
of mind must be determined from the totality of the circumstances surrounding
the alleged crime.’ ” State v. Valladares, 2018-Ohio-1250, ¶ 20 (3rd Dist.),
quoting State v. Ingram, 2012-Ohio-4075, ¶ 22 (10th Dist.). Culpable mental
states are frequently established through circumstantial evidence. Id., citing
Ingram at ¶ 22. “ ‘ “[W]hether a person acts knowingly can only be determined,
absent a defendant's admission, from all the surrounding facts and Washington App. Nos. 25CA5 and 25CA10 16
circumstances, including the doing of the act itself.” ’ ” State v. Jackson, 2019-
Ohio-170, ¶12 (3rd Dist.), quoting State v. Miller 2013-Ohio-3194, ¶ 30 (3rd
Dist.), quoting State v. Huff, 145 Ohio App.3d 555, 563 (1st Dist. 2001), citing
State v. Adams, 1995 WL 360247, *4 (4th Dist. June 8, 1995). “ ‘Physical harm
to persons’ means any injury, illness, or other physiological impairment,
regardless of its gravity or duration.’ ” Id., quoting R.C. 2901.01(A)(3).
{¶44} Appellant argues it is against the manifest weight of the evidence
that he knowingly caused or attempted to cause physical harm to the victim. We
disagree.
{¶45} Appellant admitted after he saw Phillip pulling into his yard, he
exited his house with an axe handle in hand. Phillip testified that the appellant
approached him swinging the axe handle, threatening to kill someone. Phillip
further claimed that appellant swung the axe handle at his head but missed, and
then he managed to wrestle the axe handle away from appellant. Appellant
denied swinging the axe handle at Phillip, but Phillip N. corroborated Phillip’s
testimony. Phillip authenticated the photo of the axe handle admitted into
evidence as the State’s Exhibit 7, and Deputy Thornberry confirmed that State’s
Exhibit 7 was the axe handle shown to him at the scene.
{¶46} Appellant claimed in his testimony that Phillip used an object against
him, but both Phillip and Phillip N. consistently denied appellant’s assertion.
Further, appellant’s credibility was called into question as he gave conflicting
accounts of alcohol consumption. He testified he consumed one-and-a-half
mixed drinks and rejected a medical record indicating he consumed seven to Washington App. Nos. 25CA5 and 25CA10 17
eight shots but then admitted telling EMTs he drank four shots. Finally, appellant
testified that he lost consciousness two times, yet his medical records failed to
diagnose him with a concussion, casting doubt on appellant’s memory and
reliability.
{¶47} Merely because the court, which is the tier of fact in this case,
believed the State’s testimony does not make its verdict against the manifest
weight of the evidence. Chancey, 2015-Ohio-5585 at ¶ 36 (4th Dist.). Moreover,
we find it is reasonable for a factfinder to infer that a person, who is swinging an
axe handle at someone’s head, is aware that their conduct will probably cause
that person physical harm. Therefore, we conclude that the State presented
substantial evidence to support that appellant knowingly attempted to harm
Phillip, thereby committing domestic violence. This is not the rare case where
the fact finder lost its way and created a manifest injustice. Accordingly, we
overrule appellant's assignment of error in case number 25CA5 and affirm the
trial court’s judgment of conviction.
ASSIGNMENT OF ERROR CASE NO. 25CA10
THE TRIAL RECORD DOES NOT SUPPORT THE DECISION TO REVOKE APPELLANT’S COMMUNITY CONTROL AND IMPOSE A PRISON SENTENCE
{¶48} Appellant argues in his sole assignment of error in Case No.
25CA10 that the record does not support the trial court’s decision revoking his
community control and imposing a prison sentence. He contends that the
violation was based solely on his refusal to sign the terms and conditions of Washington App. Nos. 25CA5 and 25CA10 18
probation. He wanted to review the rules with counsel before signing and said he
would comply after consulting his attorney. He explained confusion about his
sentence, which improved after seeing it on paper, and he reiterated his desire to
comply. Appellant admitted to the violation, but he characterizes the violation as
minor and asserts he should not be punished for ignorance and lack of
understanding. Further, appellant emphasizes that he was never released from
custody to demonstrate compliance with community control sanctions.
Therefore, appellant requests this court to vacate his revocation of community
control and remand the matter to the trial court for resentencing.
{¶49} The State argues that the record supports revocation because
appellant refused to sign community control terms and conditions, which
undermines enforcement and shows he is not amenable to supervision. The
State asserts the standard under R.C. 2953.08(G)(2) limits reversal to findings
specified in subsection (a) or sentences otherwise contrary to law, and none of
the enumerated findings apply to this fourth-degree domestic violence case. The
State contends appellant does not argue the sentence is contrary to law and
cites no legal authority, so he provides no valid basis for reversal. The State
notes appellant admitted the violation, the trial court found him dishonest based
on trial and violation proceedings, and the sentencing colloquy shows he
understood the terms. The State also points to appellant’s criminal history,
including contempt and prior probation violations shows unwillingness to comply,
rather than ignorance. Washington App. Nos. 25CA5 and 25CA10 19
{¶50} The State further rejects appellant’s claim that custody prevented
compliance, arguing he had an immediate opportunity to demonstrate
compliance by signing the terms while still in custody. The State concludes the
trial court was not required to make findings under R.C. 2953.08(G)(2)(a),
appellant did not argue the sentence was contrary to law. Therefore, the State
argues that assignment of error should be overruled.
A. Law
{¶51} Appellant maintains that “the trial court’s record does not support
the trial court’s decision to revoke appellant’s community control and impose a
prison term.” We note that the revocation of community control and the
subsequent resentencing imposed involve separate standards of review.
1. Community Control
{¶52} The proper standard when reviewing decisions revoking community
control is an abuse of discretion. State v. Stricklett, 2025-Ohio-1247, ¶ 7 (4th
Dist.), citing State v. Mehl, 2022-Ohio-1154, ¶ 7 (4th Dist.). An abuse of
discretion suggests that a decision is unreasonable, arbitrary, or unconscionable.
State v. Cihon, 2023-Ohio-3108, ¶ 19 (4th Dist.), citing State v. Adams, 62 Ohio
St.2d 151, 157-158 (1980). “Once a court determines that community control
should be revoked and a prison term imposed, the trial court's sentencing
decision is reviewed under the standard set forth in R.C. 2953.08(G)(2).”
Stricklett at ¶ 8, citing Mehl at ¶ 15; State v. Marcum, 2016-Ohio-1992, ¶10.
2. Prison Sentence
{¶53} R.C. 2953.08(G)(2) provides that Washington App. Nos. 25CA5 and 25CA10 20
[t]he court hearing an appeal under division (A), (B), or (C) of this section shall review the record, including the findings underlying the sentence or modification given by the sentencing court. The 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. The appellate court's standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following: (a) That 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; (b) That the sentence is otherwise contrary to law.
(Emphasis added.) B. Analysis
{¶54} In his appeal, appellant vaguely claims that he “did not fully
understand everything” regarding his community control. The requirement to
obey his community control, which included signing its terms and conditions, was
not a complicated obligation. Further, as noted by the trial court during the
appellant’s initial sentencing, he has a criminal history that includes a probation
violation in an OVI case. Thus, it seems unlikely that appellant was unfamiliar
with the obligations of community control.
{¶55} After his conviction for domestic violence, appellant requested a
community control sentence. The court agreed but warned him that he must
obey the terms and conditions provided by the probation department. The court
specifically instructed appellant that he would have to “sign off on [the term and
conditions of his community control].” The court informed appellant that if he Washington App. Nos. 25CA5 and 25CA10 21
violated his community control, he could be subject to a prison term. Appellant
ensured the court that he would comply with the terms and conditions of
community control. Despite the court’s admonitions and appellant’s promises,
appellant refused to sign the document that acknowledged the terms and
conditions of his community control.
{¶56} At his probable cause hearing on his community control violation,
appellant waived probable cause and agreed to proceed directly on the State’s
complaint. The court informed appellant that refusing the terms and conditions of
community control left the court no option but to send him to prison. Appellant
{¶57} Finally, and perhaps most important to our analysis, several weeks
after his probable cause hearing at his community control revocation hearing,
appellant admitted that he violated his community control sentence.
{¶58} Appellant was aware from the date of his initial sentencing and was
reminded numerous times by the court in subsequent proceedings that he had to
comply with his community control or he would likely be sentenced to prison. Yet
he failed to do so even though, as divulged at his initial sentencing hearing,
appellant had a criminal history including a parole violation. Thus, appellant’s
argument that he did not understand his obligation under community control rings
hollow.1
{¶59} Under these facts, we find that the trial court’s revocation of
appellant’s community control sentence was not unreasonable, arbitrary, or
1 In State v. Talty, the Supreme Court recognized that “community control is the functional equivalent of probation[.]” 2004-Ohio-4888, ¶ 16. Washington App. Nos. 25CA5 and 25CA10 22
unconscionable. Therefore, we find that the trial court did not abuse its discretion
in doing so.
2. The Prison Term
{¶60} Similar to Stricklett, because appellant admitted to a violation of his
community control that resulted in resentencing to a prison term, appellant’s
resentencing to an 15-month prison term is reviewed under R.C. 2953.08(G)(2).
Stricklett, 2025-Ohio-1247, ¶ 7 (4th Dist.). In part, R.C. 2953.08(G)(2), permits
this court to vacate a sentence if the record does not clearly and convincingly
support certain specified findings, or if the sentence is “otherwise contrary to
law.” See State v. Burnett, 2025-Ohio-5307, 32-33 (4th Dist.). Appellant does
not assert that his sentence is contrary to law. Instead, appellant’s assignment of
error asserts only that the trial court’s record does not support the decision to
impose a prison term. In pertinent part, R.C. 2953.08(G)(2) provides that:
The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following: (a) That 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.
(Emphasis added.)
{¶61} This language permits an appellant to challenge the trial court’s
findings under R.C. 2923.13(B) or (D), R.C. 2929.14(B)(2)(e) or (C)(4), or R.C.
2929.20(I) arguing that the record does not support the appellant’s sentence.
See State v. Huges, 2021-Ohio-3127, ¶40-41 (4th Dist.). “However, R.C.
2953.08(G)(2) does not give appellate courts broad authority to review sentences Washington App. Nos. 25CA5 and 25CA10 23
to determine if they are supported by the record.” State v. Jones, 2020-Ohio-
6729, ¶ 27.
{¶62} In the instant case, appellant does not identify R.C. 2929.13(B) or
(D), R.C. 2929.14(B)(2)(e) or (C)(4), or R.C. 2929.20(I) as applying in his case,
let alone whether the court made any findings regarding their application.
Consequently, he was also unable to argue that any required findings were
unsupported by the trial court’s record. “[I]t is not the role of an appellate court to
cobble together an argument for an appellant.” State v. Clark, 2025-Ohio-4410,
¶ 23, citing State ex rel. McKenney v. Jones, 2022-Ohio-583, ¶ 28, quoting State
v. Quarterman, 2014-Ohio-4034, ¶ 19 (“It is not the role of this court to ‘search
the record or formulate legal arguments on behalf of the parties.’ ”).
{¶63} For the aforementioned reasons, in Case No. 25CA10, we find that
appellant’s assignment of error that the trial court’s record does not support the
trial court’s decision to revoke appellant’s community control and impose a prison
term lacks merit. Therefore, we affirm the trial court’s revocation of appellant’s
community control and his resentencing to a 15-month prison term.
CONCLUSION
{¶64} Pursuant to the analyses infra, we affirm appellant’s conviction in
Case No. 25CA5 and the trial court’s revocation of appellant's community control
and imposition of a 15-month prison term in Case No. 25CA10.
JUDGMENTS AFFIRMED. Washington App. Nos. 25CA5 and 25CA10 24
JUDGMENT ENTRY
It is ordered that the JUDGMENTS ARE AFFIRMED. Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Washington County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed 60 days upon the bail previously posted. The purpose of a continued stay is to allow appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the 60-day period, or the failure of the appellant to file a notice of appeal with the Supreme Court of Ohio in the 45-day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of 60 days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. and Hess, J.: Concur in Judgment and Opinion.
For the Court,
BY: ____________________________ Kristy S. Wilkin, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 22, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.