State v. Culbreth , 2019 Ohio 138 ( 2019 )

[Cite as State v. Culbreth, 2019-Ohio-138.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HIGHLAND COUNTY
STATE OF OHIO, : Case No. 18CA8
Plaintiff-Appellee, :
v. : DECISION AND
JUDGMENT ENTRY
STEVEN RAY CULBRETH, :
Defendant-Appellant. : RELEASED 01/09/2019
APPEARANCES:
Eric J. Allen, The Law Office of Eric J. Allen, Ltd., Gahanna, Ohio, for appellant.
Anneka P. Collins, Highland County Prosecuting Attorney, Hillsboro, Ohio, for appellee.
Hoover, J.
{¶1} Following trial, a jury found Steven R. Culbreth (“Culbreth”) guilty of burglary;
and the Highland County Court of Common Pleas convicted him upon the jury verdict. The trial
court sentenced Culbreth to a five-year prison term with a three-year mandatory term of post-
release control.
{¶2} On appeal, Culbreth asserts that the trial court erred in using a dismissed
domestic-violence charge as a factor in sentencing him to prison. However, the trial court noted
that it did not credit the dismissed charge; instead, it emphasized that the charge was dismissed
and did not result in a criminal conviction. The court merely cited it with his convictions and his
threats made in this case as evidence of some history of violence, temper, and threatening
behavior. We have consistently held that evidence of other crimes, including crimes that do not
result in formal criminal charges, or criminal charges that are dismissed as part of a plea bargain,
Highland App. No. 18CA8 2
may be considered at sentencing. The evidence at sentencing included the presentence
investigation report, which the trial court considered, but is not included in the record on appeal.
Because Culbreth failed to supplement the record on appeal with the report, we must presume
that it included evidence of his history of violence, temper, and threatening behavior. Finally, the
record includes the evidence introduced during the jury trial, which includes evidence of
Culbreth’s history of violence, temper, and threatening behavior. We reject Culbreth’s first
assignment of error.
{¶3} Culbreth next contends that the record does not support his five-year prison
sentence. He argues that his two prior convictions were not related to burglary and were tied to
his history of alcohol abuse. He also contends that it has been six years since those prior
convictions. Therefore, his recidivism risk was much lower than the average defendant convicted
of burglary. But, the trial court emphasized Culbreth’s lack of genuine remorse and his express
intent of his home invasion to threaten to commit violence as evidence supporting more than the
minimum two-year prison sentence. Culbreth fails to establish by the requisite clear and
convincing evidence that his sentence is either contrary to law or not supported by the record.
We overrule Culbreth’s second assignment of error.
{¶4} Having overruled both assignments of error, we affirm Culbreth’s sentence.
I. Facts and Procedural Background
{¶5} In November 2017, a Highland County Grand Jury indicted Culbreth with one
count of burglary in violation of R.C. 2911.12(A)(2), a felony of the second degree, and one
count of menacing in violation of R.C. 2903.22, a misdemeanor of the fourth degree. Culbreth
entered a plea of not guilty to the charges; and the case proceeded to a jury trial.
Highland App. No. 18CA8 3
{¶6} Kathryn Parry testified that she has lived at her home in Mount Orab, Highland
County, Ohio, since 2016, and that Culbreth was her ex-boyfriend, who had lived in that home
with her until their break-up in April 2017. Their relationship had been marked by violence,
including Culbreth harming her and breaking a chain lock off the front door when he was mad.
When they broke up, Kathryn asked Culbreth to give her back the keys to the home; and he gave
her what she thought was the only set of keys to the home he had.
{¶7} After the break-up, Kathryn married David Parry and he lived with her and her
two sons at the Mount Orab home. On the morning of October 16, 2017, after her husband had
left for work, Kathryn received a call from Culbreth complaining about her calling his boss.
Culbreth threatened to kill her and her husband and stated that he was coming over to kick
David’s ass. He then proceeded to send her several text messages, threatening to harm her
husband. Culbreth then drove to Kathryn’s home and texted her that he was on the road the
house was on and urged her to tell her husband to “[g]et his ass to the road.” When she saw
Culbreth’s car parked at the end of the driveway and him standing outside of it with his arms
crossed, she shut the front door and locked it and called her husband and then called 911. She
believed that Culbreth was going to harm her.
{¶8} When Kathryn then heard the front door opening, she ran out sliding doors
through the back yard, eventually stopping a passing motorist, who called 911 and drove her to a
store away from the home. Sandra Chase, the driver of the vehicle who picked Kathryn up when
she fled her home, corroborated Kathryn’s account and further testified that Kathryn was
“hysterical, screaming, crying” and “had tears down her face” when she picked her up and that
they observed Culbreth look in his car before he went towards the home. She received a text
shortly thereafter from Culbreth stating that he could not believe that she had changed the toilets
Highland App. No. 18CA8 4
in the home that he had installed when he lived with her, indicating that he had been inside her
home.
{¶9} Sgt. Dan Croy of the Highland County Sheriff’s Office testified that on that
morning, he received a dispatch about the situation and met Kathryn at the store to which she had
been diverted. When he arrived at the home, he noticed that the screen door was ajar and the
front door was open. He returned Kathryn to her home and met her husband there. When her cell
phone rang with Culbreth calling her, her husband answered it on speakerphone upon Sgt. Croy’s
direction; and Culbreth threatened to beat him up. Then, upon Sgt. Croy’s instructions, David
told Culbreth to come back to their home and “get some.” Culbreth then drove back to Kathryn’s
home at a high rate of speed, and Sgt. Croy arrested him. David corroborated his wife’s and Sgt.
Croy’s testimony and testified that he was never scared of Culbreth’s threats.
{¶10} When Sgt. Croy questioned him, Culbreth first told him that he had not been at
Kathryn’s home earlier that day. Eventually, he admitted that he had knocked on the front door
and then claimed that he had unlocked the front door to let the dog in, but never said that he had
entered the home. Sgt. Croy also found a masonry hammer inside Culbreth’s car.
{¶11} At the conclusion of the state’s evidence, the court granted Culbreth’s Crim.R. 29
motion for judgment of acquittal in part, dismissing the menacing charge because David Parry
had testified that Culbreth’s threats against him did not cause him to fear physical harm.
{¶12} Culbreth testified in his own defense, claiming that he had kept a set of keys to
Kathryn’s home after they broke up because it was with one of his vehicles. He admitted
threatening Kathryn’s husband in the texts on October 16, 2017, but denied threatening to kill or
harm her. When Culbreth arrived at the home to beat up her husband, he honked his horn to get
them to come out; but when they did not, he thought they were gone. According to Culbreth, he
Highland App. No. 18CA8 5
then decided to go into their home because he was “curious” about whether they had kept all of
the remodeling he had done to the home when he lived there with Kathryn. He testified that
when he left the home, he locked the front door and he shut it. Culbreth further testified under
oath that other than a traffic offense, he had never been convicted of a criminal offense.
{¶13} The jury returned a verdict finding Culbreth guilty of burglary as charged; and the
trial court convicted him upon the guilty verdict and ordered a presentence investigation.
{¶14} At the sentencing hearing, the trial court first noted that it had reviewed a
presentence investigation report, which is not included in the record on appeal. The state
recommended that the court sentence Culbreth to a prison term because he entered Kathryn’s
home to cause either her and/or David harm, Kathryn had testified that he had an anger problem
and had hurt her in the past, and his anger was reflected by his many threats on the day of the
offense. Culbreth’s counsel requested community control rather than a prison term. The
justification for the request included: (1) recidivism was less likely given Culbreth’s minimal
criminal history; (2) the lack of any damage done to the home after Culbreth illegally entered it;
and (3) his remorse for the burglary. Culbreth told the court that he was sorry for what he did,
but then claimed he did not know Kathryn was in the house when he entered it.
{¶15} The trial court sentenced Culbreth to a term of five years in prison with a three-
year mandatory term of post-release control. In both the sentencing hearing and its sentencing
entry, the trial court noted that (1) Kathryn suffered serious psychological harm; (2) Culbreth’s
relationship with her facilitated the offense; and (3) Culbreth showed no genuine remorse for the
burglary. At the sentencing hearing, the court additionally noted that Culbreth had a history of
violence, that he entered the home to cause physical harm, and that the only reason he did not
was because Kathryn and David were not home when he illegally invaded it:
Highland App. No. 18CA8 6
This Court takes any home invasion seriously; but, when the express intent of the
home invasion is the threat to commit violence, that ratchets it up even more. The
only factors that I find in your favor is the fact that you weren’t able to commit
any physical violence against anyone, and that wasn’t because of lack of trying, it
was simply that she fled out the back door, and he wasn’t there. And had he been
there, there would have been a confrontation.
II. Assignments of Error
{¶16} Culbreth assigns the following errors for our review:
I. THE TRIAL COURT ERRED BY USING DISMISSED CHARGES AS AN
INFLUENCING FACTOR IN SENTENCING.
II. THE RECORD DOES NOT SUPPORT THE NEED FOR A FIVE-YEAR
PRISON SENTENCE.
III. Standard of Review
{¶17} In his assignments of error, Culbreth contests his sentence for burglary, a felony
of the second degree. When reviewing felony sentences appellate courts must apply the standard
of review set forth in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-
1002, 59 N.E.3d 1231, ¶ 1, 22-23. Under R.C. 2953.08(G)(2), “[t]he appellate court’s standard
for review is not whether the sentencing court abused its discretion.” Instead, R.C. 2953.08(G)(2)
provides that an appellate court may increase, reduce, modify, or vacate and remand a challenged
felony sentence if the court clearly and convincingly finds either:
(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.
Highland App. No. 18CA8 7
{¶18} Although R.C. 2953.08(G)(2)(a) does not mention R.C. 2929.11 and 2929.12, the
Supreme Court of Ohio has determined that the same standard of review applies to those statutes.
Marcum at ¶ 23 (although “some sentences do not require the findings that R.C.
2953.08(G)[2][a] specifically addresses[,] * * * it is fully consistent for appellate courts to
review those sentences that are imposed solely after consideration of the factors in R.C. 2929.11
and 2929.12 under a standard that is equally deferential to the sentencing court”); State v.
Butcher, 4th Dist. Athens No. 15CA33, 2017-Ohio-1544, ¶ 84.
{¶19} The defendant bears the burden of establishing by clear and convincing evidence
that the sentence is either contrary to law or not supported by the record. See, e.g., State v.
Fisher, 4th Dist. Jackson No. 17CA5, 2018-Ohio-2718, ¶ 20, citing State v. O’Neill, 3d Dist.
Allen No. 1-09-27, 2009-Ohio-6156, fn. 1. Clear and convincing evidence is more than a mere
“preponderance of the evidence,” but allows less certainty than is required “beyond a reasonable
doubt. It requires only “a firm belief or conviction as to the facts sought to be established. ” State
ex rel. Husted v. Brunner, 123 Ohio St.3d 288, 2009-Ohio-5327, 915 N.E.2d 1215, ¶ 18.
IV. Law and Analysis
A. The Trial Court Did Not Erroneously Consider a Dismissed
Domestic-violence Charge in Sentencing.
{¶20} In his first assignment of error Culbreth asserts that the trial court erred in using a
dismissed domestic-violence charge against him in sentencing. He cites to the following
emphasized portion of the trial court’s discussion at the sentencing hearing:
So, looking at the various factors: You do have some history of violence. – Well,
let me back up. – In looking at your record, your conviction for the mishandling
of weapons while intoxicated, and disorderly conduct back on 9-20-12 in
Highland App. No. 18CA8 8
Clermont County, when read in conjunction with the charge that was
dismissed, which was domestic violence, you know, certainly suggests that
you’ve had some problems in the past with your temperament, your temper,
and threatening. And the casual way in which you were throwing out threats on
your text, about that you were coming there to take care of him, you know, and
it’s clear that violen[ce] is not something that’s strange to you when it comes to
dealing with personal situations, even though it hasn’t resulted in any criminal
convictions for that particularly. (Emphasis added.)
{¶21} For the following reasons, we reject Culbreth’s assertion. First, the premise of his
assignment of error is incorrect. The trial court noted that it did not credit the dismissed charge;
instead, it emphasized that the charge was dismissed and did not result in a criminal conviction.
The court merely cited it with his convictions and his threats made in this case as evidence of
some history of violence, temper, and threatening behavior.
{¶22} Second, “courts, including this one, have consistently held that evidence of other
crimes, including crimes that do not result in formal criminal charges, or criminal charges that
are dismissed as a result of a plea bargain, may be considered at sentencing.” Fisher, supra, at ¶
23. The record of Culbreth’s prior charges and criminal convictions were apparently contained in
the presentence investigation report, but that report is not part of the record on appeal because
Culbreth failed to request its inclusion. When the contents of a presentence investigation report
are necessary to review the appropriateness of a sentence, an appellant must move to supplement
the record on appeal with the report to permit our review; otherwise, we must presume the
regularity of the sentence and affirm it. See, e.g., State v. McGowan, 9th Dist. Summit No.
27092, 2014-Ohio-2630, ¶ 6-7; State v. Daniels, 5th Dist. Muskingum Nos. CT2016-0021 and
Highland App. No. 18CA8 9
CT2016-0022, 2017-Ohio-1045, ¶ 18. In fact, Culbreth lied under oath at trial and evidently to
his counsel about even having any criminal convictions.
{¶23} Third, the record includes the evidence introduced during the jury trial, which
includes Culbreth’s history of violence, temper, and threatening behavior. Kathryn testified that
Culbreth had harmed her in the past and that he had been so mad one time that he broke the chain
lock off the front door. He threatened to kill Kathryn and her husband on the day of the burglary,
repeatedly threatened to beat up her husband, and was seen looking in his car where he kept a
hammer when he committed the burglary.
{¶24} Finally, the cases cited by Culbreth in support of his first assignment of error are
distinguishable. In State v. Blake, 3d Dist. Union No. 14-03-33, 2004-Ohio-1952, the appellate
court reversed a sentence because the trial court expressly stated its belief that the defendant had
committed the offenses that the state dismissed as part of the plea agreement, no evidence was
entered to support the trial court’s conclusion that the defendant committed the dismissed
offenses, and this was the court’s sole basis for imposing the maximum sentence. Conversely,
the trial court here did not expressly conclude that Culbreth committed the dismissed domestic-
violence charge. The record does not include the presentence investigation report, which may
have provided evidence that Culbreth had committed the domestic violence offense. In addition,
the trial court did not use the dismissed charge as the sole basis for its sentencing; instead it
relied on many sentencing factors. See State v. Park, 3d Dist. Crawford No. 3-06-14, 2007-Ohio-
1084, ¶ 8 (same court that issued Blake distinguished it where trial court had many other reasons
besides its belief that the defendant committed uncharged conduct to support its sentence).
{¶25} Similarly, the other case that Culbreth cites, State v. Fisher, 11th Dist. Lake No.
2002-L-020, 2003-Ohio-3499, ¶ 25, is distinguishable because in that case, the trial court
Highland App. No. 18CA8 10
“manufacture[d] extra evidence [relating to a higher dismissed charge] as a basis for a higher
sentence.” The record does not establish that the trial court made up evidence to support its
sentence here.
{¶26} We overrule Culbreth’s first assignment of error.
B. Culbreth Did Not Establish that His Sentence is Clearly and Convincingly Contrary
to Law or Not Supported by the Record.
{¶27} In his second assignment of error, Culbreth contends that the record does not
support his five-year prison sentence. He does not claim that his sentence is contrary to law.
After review, it is clear that the sentence was not contrary to law because his sentence was within
the statutory range; the trial court stated that it considered the factors in 2929.11 and 2929.12;
and it was not obligated to make specific findings concerning these factors. See State v. Douglas,
4th Dist. Athens Nos. 17CA6 and 17CA8, 2018-Ohio-732, ¶ 42, citing State v. Mullins, 4th Dist.
Scioto No. 15CA3716, 2016-Ohio-5486, ¶ 26-27; R.C. 2929.14(A)(2) (“For a felony of the
second degree, the prison term shall be two, three, four, five, six, seven, or eight years”).
Culbreth’s five-year prison sentence was more than the two-year minimum sentence, but less
than the eight-year maximum sentence.
{¶28} Therefore, Culbreth must establish by clear and convincing evidence that the
record does not support his sentence. He argues that his two prior convictions were not related to
burglary and were tied to his history of alcohol abuse. He also contends that it has been six years
since those prior convictions; and his recidivism risk was much lower than the average defendant
convicted of burglary. He claims that the record did not support his five-year prison term. But,
the court could appropriately determine that his lack of genuine remorse at trial, including his
incredible claim that he entered his ex-girlfriend’s home only because he was curious about
Highland App. No. 18CA8 11
whether she and her husband had kept his remodeling, coupled with his past evidence of
violence, temper, and threatening behavior made his conviction for burglary serious enough to
warrant more than the minimum prison sentence. As the trial court emphasized, home invasions
where violence is threatened are particularly egregious; and it appeared that the only reason
physical violence did not occur when Culbreth illegally entered his ex-girlfriend’s home was the
fortuitous occurrence that they had vacated the premises. Simply because the court did not
balance or credit certain factors in the manner that Culbreth desires does not mean that the court
failed to consider them, or that clear and convincing evidence shows that the court’s findings are
not supported by the record. State v. Yost, 4th Dist. Meigs No. 17CA10, 2018-Ohio-2719, ¶ 20;
State v. Graham, 4th Dist. Adams No. 17CA1046, 2018-Ohio-1277, ¶ 26.
{¶29} We overrule Culbreth’s second assignment of error.
V. Conclusion
{¶30} Culbreth has not established that the trial court erred in imposing a five-year
prison sentence for his burglary conviction. Having overruled both of Culbreth’s assignments of
error, we affirm his sentence.
JUDGMENT AFFIRMED.
Highland App. No. 18CA8 12
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that 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 Highland County
Court of Common Pleas 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 sixty 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 sixty day period, or the failure of
the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five 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 sixty 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.
Abele, J. and McFarland, J.: Concur in Judgment and Opinion.
For the Court
By: ____________________________
Marie Hoover, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and
the time period for further appeal commences from the date of filing with the clerk.