[Cite as State v. Risner,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HARDIN COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 6-21-12

v.

GREGORY LEE RISNER, OPINION

DEFENDANT-APPELLANT.

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 6-21-13

v.

GREGORY LEE RISNER, OPINION

DEFENDANT-APPELLANT.

Appeals from Hardin County Common Pleas Court Trial Court Nos. CRI 20202053 and CRI 20212080

Appeal Dismissed in Case No. 6-21-12 and Judgment Affirmed in Case No. 6-21-13

Date of Decision: October 31, 2022

APPEARANCES:

Michael B. Kelley for Appellant

Andrew R. Tudor for Appellee Case Nos. 6-21-12, 6-21-13

MILLER, J.

{¶1} Defendant-appellant, Gregory L. Risner, appeals the November 4, 2021

judgment of sentence of the Hardin County Court of Common Pleas. For the

reasons that follow, we affirm.

Facts & Procedural History

{¶2} On June 16, 2021, the Hardin County Grand Jury indicted Risner in case

number CRI 20212080 on 17 counts: Counts One, Four, Five, Six, Eight, Ten,

Twelve, Fourteen, Fifteen, Sixteen, and Seventeen of violating a protection order in

violation of R.C. 2919.27(A)(1), (B)(3)(a), fifth-degree felonies; Counts Three,

Nine, and Thirteen of violating a protection order in violation of R.C.

2919.27(A)(1), (B)(4), third-degree felonies; and Counts Two, Seven, and Eleven

of identity fraud in violation of R.C. 2913.49(B)(1), fifth-degree felonies.

{¶3} At his initial appearance on June 22, 2021, the trial court appointed trial

counsel for Risner. On June 29, 2021, Risner pleaded not guilty to the counts of the

indictment.

{¶4} A jury trial was held on October 14-15, 2021. On October 15, 2021,

the trial court found Risner guilty of all 17 counts. The trial court accepted the jury’s

verdicts and found Risner guilty. The trial court filed its judgment entry of

conviction on October 20, 2021.

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{¶5} At the sentencing hearing held on November 1, 2021, the trial court

determined that Counts Two, Three, and Four; Counts Seven, Eight, and Nine;

Counts Ten, Eleven, and Twelve; and Counts Fourteen, Fifteen, Sixteen, and

Seventeen were allied offenses of similar import. The State opted for the trial court

to sentence Risner on Count Three, Count Nine, Count Ten, and Count Seventeen,

respectively. The trial court sentenced Risner to the following terms of

imprisonment: 8 months on Count One, 12 months on Count Three, 8 Months on

Count Five, 8 months on Count Six, 12 months on Count Nine, 8 months on Count

Ten, 12 months on Count Thirteen, and 8 months on Count Seventeen. The trial

court ordered the prison terms for all the counts to run consecutively to each other

for a non-mandatory aggregate prison term of 76 months. The trial court further

ordered the 76-month prison term in case number CRI 20212080 to run

consecutively to the 41-month prison term imposed in Hardin County Common

Pleas Case number CRI 20202053, for an aggregate term of 117 months in prison.

The trial court filed its judgment entry of conviction on November 4, 2021.

{¶6} Risner filed his notice of appeal on November 5, 2021. He raises two

assignments of error for our review.

Assignment of Error No. I

Appellant’s conviction was against the manifest weight of the evidence and the evidence was insufficient to support a conviction.

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{¶7} In his first assignment of error, Risner argues the evidence supporting

his convictions was insufficient and that his convictions are against the manifest

weight of the evidence.

Standards for Sufficiency-of-the-Evidence and Manifest-Weight Review

{¶8} Manifest “weight of the evidence and sufficiency of the evidence are

clearly different legal concepts.” State v. Thompkins,

(1997). Accordingly, we address each legal concept individually.1

{¶9} “An appellate court’s function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at

trial to determine whether such evidence, if believed, would convince the average

mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks,

(1991), paragraph two of the syllabus, superseded by state constitutional

amendment on other grounds, State v. Smith,

(1997).

Consequently, “[t]he relevant inquiry is whether, after viewing the evidence in a

light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the crime proven beyond a reasonable doubt.”

“In

deciding if the evidence was sufficient, we neither resolve evidentiary conflicts nor

assess the credibility of witnesses, as both are functions reserved for the trier of

1 In his appellate brief, Risner combines his sufficiency-of-evidence and manifest-weight arguments. However, after reviewing his arguments in light of the record, we elect to address his claims separately.

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fact.” State v. Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-

4775, ¶ 33.

{¶10} On the other hand, in determining whether a conviction is against the

manifest weight of the evidence, a reviewing court must examine the entire record,

“‘weigh[ ] the evidence and all reasonable inferences, consider[ ] the credibility of

witnesses and determine[ ] whether in resolving conflicts in the evidence, the [trier

of fact] clearly lost its way and created such a manifest miscarriage of justice that

the conviction must be reversed and a new trial ordered.’”

,

quoting State v. Martin,

(1st Dist. 1983). A reviewing

court must, however, allow the trier of fact appropriate discretion on matters relating

to the weight of the evidence and the credibility of the witnesses. State v. DeHass,

(1967). When applying the manifest weight standard,

“[o]nly in exceptional cases, where the evidence ‘weighs heavily against the

conviction,’ should an appellate court overturn the trial court’s judgment.” State v.

Haller, 3d Dist. Allen No. 1-11-34,

, quoting State v. Hunter,

,

.

Risner’s Offenses

{¶11} As an initial matter, to the extent Risner challenges the sufficiency and

weight of the evidence supporting the jury’s findings of guilt as to Counts Two,

Four, Seven, Eight, Eleven, Twelve, Fourteen, Fifteen, and Sixteen, we need not

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address those arguments. See State v. Sheldon, 3d Dist. Hardin No. 6-18-07, 2019-

Ohio-4123, ¶ 11, citing State v. Turner, 2d Dist. Clark No. 2017-CA-78, 2019-Ohio-

144, ¶ 22. R.C. 2941.25 provides that “[w]here the same conduct by defendant can

be construed to constitute two or more allied offenses of similar import, the

indictment or information may contain counts for all such offenses, but the

defendant may be convicted of only one.” Indeed, the Supreme Court of Ohio has

explicitly stated that a ‘conviction’ requires both a finding of guilt and a sentence.”

State v. Miller, 3d Dist. Logan No. 8-19-02,

. “Specifically,

‘[w]hen counts in an indictment are allied offenses, and there is sufficient evidence

to support the offense on which the state elects to have the defendant sentenced, the

appellate court need not consider the sufficiency [or weight] of the evidence on the

count that is subject to merger because any error would be harmless’ beyond a

reasonable doubt.” Sheldon at ¶ 11, quoting State v. Ramos, 8th Dist. Cuyahoga

No. 103596,

. Here, error, if any, with respect to the

sufficiency or weight of the evidence as to Risner’s charges under Counts Two,

Four, Seven, Eight, Eleven, Twelve, Fourteen, Fifteen, and Sixteen is harmless

beyond a reasonable doubt because those counts were merged with other counts.

See State v. Powell,

(1990), superseded by state

constitutional amendment on other grounds, State v. Smith,

, 102

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(1997), fn. 4. Accordingly, our analysis will focus only on the counts for which

Risner was convicted and sentenced.

{¶12} R.C. 2919.27(A)(1) provides that “[n]o person shall recklessly violate

the terms of * * * [a] protection order issued or consent agreement approved

pursuant to R.C. 2919.26 or 3113.31 of the Revised Code.” R.C. 2901.22(C)

provides that “[a] person acts recklessly when, with heedless indifference to the

consequences, the person disregards a substantial and unjustifiable risk that the

person’s conduct is likely to cause a certain result or is likely to be of a certain

nature.” “A person is reckless with respect to circumstances when, with heedless

indifference to the consequences, the person disregards a substantial and

unjustifiable risk that such circumstances are likely to exist.” R.C. 2901.22(C).

{¶13} R.C. 2919.27(B)(3)(a), which relates to Counts One, Five, Six, Ten,

and Seventeen, provides that “[v]iolating a protection order is a felony of the fifth

degree if the offender previously has been convicted of, pleaded guilty to, or been

adjudicated a delinquent child for * * * [a] violation of a protection order issued or

a consent agreement approved pursuant to section 2151.34, 2903.213, 2903.214,

2919.26, or 3113.31 of the Revised Code.” The parties stipulated that Risner

previously violated a protection order pursuant to the statute. (Oct. 14-15, 2021 Tr.

at 577-578).

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{¶14} R.C. 2919.27(B)(4), which corresponds to Counts Three, Nine, and

Thirteen, provides, “If the offender violates a protection order or consent agreement

while committing a felony offense, violating a protection order is a felony of the

third degree.” Specifically, the counts reference identity fraud, which the parties

stipulated is a felony offense. (Oct. 14-15, 2021 Tr. at 580).

{¶15} R.R., the victim of the offenses and Risner’s ex-wife, testified at the

trial. (Oct. 14-15, 2021 Tr. at 82-84). R.R. stated that she and Risner started living

apart in April 2019, around the time that R.R. filed for divorce from Risner.2 (Id. at

83). On June 12, 2019, the Hardin County Common Pleas Court granted R.R. a

domestic violence civil protection order (“CPO”) against Risner pursuant to R.C.

3113.31. (Id. at 85-89); (State’s Ex. 1). The CPO ordered Risner to stay 500 feet

away from R.R. at all times and ordered Risner not to have any direct or indirect

contact with R.R. for a period of one year. (State’s Ex. 1). The CPO also granted

R.R. the exclusive use of 59 Grape Street in Kenton, Ohio. (State’s Ex. 1); (Oct.

14-15, 2021 Tr. at 89-90). On August 26, 2019, the Hardin County Court of

Common Pleas issued an amendment to the CPO issued on June 12, 2019, to allow

Risner to the attend the athletic events of Risner and R.R.’s sons under certain

conditions. (State’s Ex. 2); (Oct. 14-15, 2021 Tr. at 85-86). All other provisions of

the June 12, 2019 protection order remained in effect and the CPO was effective

2 Risner and R.R.’s divorce was finalized in July 2021. (Oct. 14-15, 2021 Tr. at 83).

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through August 26, 2020. (State’s Ex. 2). On June 2, 2020, the trial court issued a

judgment entry extending the terms of CPO issued on August 26, 2019 through June

2, 2022. (State’s Ex. 3); (Oct. 14-15, 2021 Tr. at 86-91).

{¶16} On August 12, 2019, R.R. received a message through Facebook

Messenger from C.R., a man who stated that he was chatting with her on FetLife, a

sexually-oriented social-networking website that caters to fetish interests. (State’s

Ex. 61); (Oct. 14-15, 2021 Tr. at 92-108). R.R. informed C.R. that she did not have

a profile on FetLife and that he was likely speaking to her ex-husband. (State’s Ex.

61). C.R. sent R.R. screenshots of a FetLife profile for a user called

“b[***]lovehoe” which included numerous nude and sexually-explicit photographs

of R.R. (State’s Ex. 61); (Oct. 14-15, 2021 Tr. at 95-96). R.R. then requested that

C.R. cease contacting her. (State’s Ex. 61). Despite R.R.’s request, on December

11, 2020, C.R. messaged R.R. again to inform her that “[her] ex” was still posting

her images on FetLife and messaging C.R. on the website. (State’s Ex. 61); (Oct.

14-15, 2021 Tr. at 108-111). R.R. testified that C.R.’s messages made her feel

embarrassed, frustrated, angry, harassed, and hurt. (Oct. 14-15, 2021 Tr. at 111).

R.R. stated that she has never visited FetLife and has never had a profile on that

platform. (Oct. 14-15, 2021 Tr. at 94-96). Furthermore, she denied giving anyone

permission to use her name or image on the website. (Id. at 96).

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{¶17} State’s Exhibit 27 is a printout out of the FetLife profile for the user

“b[***]lovehoe” and includes approximately 56 pictures. (Id. at 96-97). R.R.

identified some of the images posted on the FetLife profile as intimate photographs

of herself that Risner took in approximately 2008 or 2009, during the course of their

marriage. (Id. at 100-101); (State’s Ex. 27). Also included on the “b[***]lovehoe”

profile were photographs that that were not of R.R. and photographs of R.R.’s face

superimposed on the body of another woman engaging in sexual intercourse with

an unknown male. (State’s Exs. 27, 28); (Oct. 14-15, 2021 Tr. at 104-107, 112).

Additionally, the FetLife profile contained personal information including R.R.’s

name, age, gender, and city. (State’s Ex. 27); (Oct. 14-15, 2021 Tr. at 98-99). R.R.

again confirmed that she did not create the profile on FetLife and did not give

anyone permission to create the profile or use her photographs or personal

information on the website. (Oct. 14-15, 2021 Tr. at 98-99).

{¶18} On November 25, 2020, R.R. informed law enforcement that she had

been receiving text messages from various unknown numbers. (Id. at 119); (State’s

Ex. 6). R.R. identified State’s Exhibit 7 as a printout of the aforementioned

messages that she provided to law enforcement. (Oct. 14-15, 2021 Tr. at 119-120);

(State’s Ex. 7). Some of the text messages are sexual in nature and reference R.R.

engaging in sex acts with the sender and reference intimate photographs and videos

of R.R. apparently shared with the sender. (Oct. 14-15, 2021 Tr. at 124-127, 130-

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133); (State’s Ex. 7). Several of the messages warn R.R. to stay away from the

sender’s husband. (State’s Ex. 7); (Oct. 14-15, 2021 Tr. at 120-121). Additionally,

many of the messages reference R.R.’s personal information, such as the names of

her employer, co-workers, and pastor. (State’s Ex. 7); (Oct. 14-15, 2021 Tr. at 121-

124, 128-132). Furthermore, several of the messages use insulting and degrading

language toward R.R. (State’s Ex. 7); (Oct. 14-15, 2021 Tr. at 123-124, 128-129,

131).

{¶19} While reviewing State’s Exhibit 7, R.R. stated that she was especially

concerned by several messages that referenced a white pick-up truck. (State’s Ex.

7); (Oct. 14-15, 2021 Tr. at 132-134). Specifically, on November 17, 2020, she

received a message from an unknown number which said, “Hi, [R.R.] thanks for the

chat and the invite[.] I’m here[.] [Y]ou want me to park in front of the white

truck[?]” (State’s Ex. 7). R.R. was particularly troubled by the message because

there actually was a white pick-up truck belonging to R.R.’s boyfriend that was

parked outside her residence at the time she received the messages. (Oct. 14-15,

2021 Tr. at 116-118, 133-134). Furthermore, R.R. confirmed that she did not invite

anyone to her home that night. (Oct. 14-15, 2021 Tr. at 134).

{¶20} Additionally, D. Robyn Thacker, Risner’s friend, confirmed that in a

Facebook Messenger conversation on November 15, 2020, Risner stated, “[R.R.]

moved her bf in and [her niece] both* * *. [W]e seen [sic] her and her boyfriend[.]

-11- Case Nos. 6-21-12, 6-21-13

[H]e’s shorter then [sic] her[.]” (Oct. 14-15, 2021 Tr. at 247); (State’s Ex. 54). In

the messages, Risner explained to Thacker that R.R.’s boyfriend had been at R.R.’s

house “all week.” (Oct. 14-15, 2021 Tr. at 244-246);(State’s Ex. 54). Risner also

told Thacker that “[R.R.’s boyfriend] has a white truck that’s been at [R.R.’s

residence].” (Oct. 14-15, 2021 Tr. at 246-247); (State’s Ex. 54).

{¶21} Detective Terry Sneary, a digital forensic examiner with the Hardin

County Sheriff’s Department, was certified as an expert in forensic digital analysis.

(Oct. 14-15, 2021 Tr. at 307-308). Detective Sneary identified State’s Exhibit 73

as Risner’s iPhone, on which Detective Sneary performed a digital analysis using

Cellebrite software. (Id. at 309-310); (State’s Ex. 73). Detective Sneary identified

State’s Exhibit 12 as a portion of the extraction report for State’s Exhibit 73. (Oct.

14-15, 2021 Tr. at 311-312); (State’s Ex. 12). Detective Sneary also identified

State’s Exhibit 13 as his written report detailing his findings. (Oct. 14-15, 2021 Tr.

at 314); (State’s Ex. 13).

{¶22} Detective Sneary’s extraction report also contained four GPS

coordinates for Risner’s iPhone on November 18, 2020. (State’s Ex. 12). All four

of the GPS coordinates corresponded to 59 Grape Street, R.R.’s address. (Id.); (Oct.

14-15, 2021 Tr. at 314-319). Investigator Scott, the primary investigator in the

instant case, testified that she provided the coordinates from the extraction report to

Nathan Saylor, the GIS coordinator for Hardin County. (Oct. 14-15, 2021 Tr. at

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205, 451). Saylor plotted the coordinates and a 500-foot buffer around 59 Grape

Street. (State’s Ex. 18); (Oct. 14-15, 2021 Tr. at 201-203). State’s Exhibit 18, which

is a copy of Saylor’s report with respect to the coordinates, reveals that the

coordinates are within the 500-foot buffer plotted on the map. (State’s Ex. 18); (Oct.

14-15, 2021 Tr. at 202-204). Although Saylor acknowledged there is a small margin

of error inherently associated with mapping coordinates, the margin of error is only

about 16 feet. (Oct. 14-15, 2021 Tr. at 203-204). Saylor confirmed that, even

factoring in a 16-foot margin of error, the coordinates provided are still within the

500-foot buffer around 59 Grape Street, Kenton, Ohio. (Id. at 204); (State’s Ex. 12,

18).

{¶23} According to Detective Sneary, the extraction report also revealed the

presence of an application called “TextNow,” which is a free application that allows

the user to send text messages over Wi-Fi rather than by utilizing cellular data.

(State’s Ex. 13); (Oct. 14-15, 2021 Tr. at 330, 333). The TextNow application

assigns random phone numbers to the user allowing the user to send text messages

through the application which appear to the receiver to be coming from different

telephone numbers. (Oct. 14-15, 2021 Tr. at 330-331). The user identification

associated with the TextNow application found on Risner’s phone was

gangbanga[***]@juno.com3. (Id. at 329); (State’s Ex. 13). Detective Sneary stated

3 The username associated with the TextNow application on State’s Exhibit 73 includes the name of R.R.’s relative who was living with R.R. during the relevant time. (State’s Ex. 13); (Oct. 14-15, 2021 Tr. at 115-

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that his extraction report of Risner’s phone included four outgoing messages to

R.R.’s phone number on December 15, 2020. (State’s Exs. 13, 14). The TextNow

messages sent to R.R. from Risner’s phone number reference R.R. by her first name

and describe an alleged recent sexual encounter with R.R. (State’s Ex. 14).

Moreover, when Detective Sneary performed an extraction on R.R.’s phone, he

found the aforementioned messages classified as incoming messages. (State’s Ex.

15); (Oct. 14-15, 2021 Tr. at 341-342, 346).

{¶24} On January 1, 2021, Investigator Scott received subpoenaed

information from TextNow phone numbers associated with the TextNow account

that was detailed in the extraction report of Risner’s phone. (Oct. 14-15, 2021 Tr.

at 404). State’s Exhibit 43, a document Investigator Scott prepared from

information she subpoenaed from Text Now and Detective Sneary’s extraction

report, details the messages, usernames, email addresses, internet provider (“IP”)

addresses, and registration dates of the TextNow account associated with Risner’s

phone. (Id. at 403-404); (State’s Ex. 43). The information Investigator Scott

received in response to a subpoena to TextNow confirmed the username, phone

number, and email address associated with the TextNow account located on

Risner’s phone. (State’s Ex. 43); (Oct. 14-15, 2021 Tr. at 404, 407). Additionally,

TextNow verified that four messages were sent from the TextNow account found

116). Because the family member may be a minor, in accordance with this court’s policy, we will only use her first initial.

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on Risner’s phone to R.R.’s phone number. (State’s Ex. 43); (Oct. 14-15, 2021 Tr.

at 403-404). Furthermore, when Investigator Scott reviewed subpoenaed

information for the TextNow number that sent the messages to R.R., she observed

that several of the usernames and emails associated with the account referenced

R.R.’s name, many in a derogatory manner. (State’s Ex. 43); (Oct. 14-15, 2021 Tr.

at 410-411).

{¶25} Detective Sneary stated the extraction report of Risner’s phone

revealed the presence of the application X-VPN, which is a VPN. (State’s Ex. 13);

(Oct. 14-15, 2021 Tr. at 324-326). Detective Sneary described a VPN as an

application used to conceal the user’s identity by masking the user’s true IP address

and location. (Oct. 14-15, 2021 Tr. at 324-326); (State’s Ex. 13).

{¶26} Detective Sneary further testified that the extraction report of Risner’s

phone revealed the presence of the Kik Messenger application, a messaging

application which can be used over Wi-Fi. (State’s Ex. 13); (Oct. 14-15, 2021 Tr.

at 333-334). The user account associated with Risner’s phone had the username

“b[***]lovehoe,” which matches the username associated with the FetLife profile,

and R.R.’s name as the display name. (Oct. 14-15, 2021 Tr. at 387, 478-480);

(State’s Ex. 26).

{¶27} Investigator Scott testified that she subpoenaed the basic subscriber

information for the “b[***]lovehoe” account from Kik Messenger. (State’s Ex. 41);

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(Oct. 14-15, 2021 Tr. at 391-392). The Kik Messenger basic subscriber data

revealed that the account for “b[***]lovehoe” was created on August 27, 2020.

(State’s Ex. 41); (Oct. 14-15, 2021 Tr. at 391-394). Investigator Scott testified that

the IP address associated with the device registering the “b[***]lovehoe” Kik

Messenger account was 192.180.83.114. (State’s Ex. 41); (Oct. 14-15, 2021 Tr. at

398-401, 454-455). Investigator Scott testified that when she traced that IP address,

it came back to a location where Risner was living in 2020. (Oct. 14-15, 2021 Tr.

at 452-453).

{¶28} Investigator Scott then sent a court order to Charter Communications

seeking information associated with the account holder relating to the IP address

192.180.83.114. (State’s Ex. 49); (Oct. 14-15, 2021 Tr. at 454-455). According to

the information provided by Charter Communications, on August 27, 2020 the IP

address belonged to Daniel Murphy residing at 421 W. Columbus St., Kenton, Ohio.

(State’s Ex. 49); (Oct. 14-15, 2021 Tr. at 455-456). However, Investigator Scott

was familiar with Murphy and knew that he was incarcerated during the time the

Kik Messenger account was created. (Oct. 14-15, 2021 Tr. at 457). Indeed,

Murphy’s former landlord, Ryan Atchley, testified that he evicted Murphy from 421

W. Columbus Street in on June 24, 2020. (Id. at 274-275); (State’s Ex. 51).

Following Murphy’s eviction from the property in June 2020, Atchley agreed to rent

421 W. Columbus Street to Risner. (Oct. 14-15, 2021 Tr. at 276).

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{¶29} Furthermore, when Investigator Scott compared the IP addresses she

received from TextNow and Kik Messenger, she was able to connect the IP

addresses to the same device, namely Risner’s phone, on the same date. (Oct. 14-

15, 2021 Tr. at 417-419); (State’s Ex. 43).

{¶30} Additionally, the Cellebrite extraction of Risner’s phone revealed the

presence of a number of screenshots taken from FetLife. (State’s Exs. 13, 29, 30,

31, 32, 33, 34, 35, 36, 37, 38, 39); (Oct. 14-15, 2021 Tr. at 328-329, 336-337).

Moreover, the screen shots extracted from Risner’s phone included the user’s profile

photo as a thumbnail in the upper-right corner of the screen shot. (State’s Exs. 29,

30, 31, 32, 33, 34, 35, 36, 37, 38, 39); (Oct. 14-15, 2021 Tr. at 337-340).

Investigator Scott testified that the screenshots from the FetLife were significant

because the profile picture located in the upper-right corner was a nude photograph

of R.R. that was the profile picture of the “b[***]lovehoe” account. (State’s Exs.

29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39); (Oct. 14-15, 2021 Tr. at 337-338).

According to Investigator Scott, this indicates that whoever accessed FetLife on

Risner’s phone was logged into the “b[***]lovehoe” user account. (Oct. 14-15,

2021 Tr. at 338-340).

{¶31} Moreover, when Detective Scott reviewed the images Detective

Sneary extracted from Risner’s phone, she located multiple images that were

consistent with the images uploaded to the “b[***]lovehoe” FetLife account,

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including intimate images of R.R. (State’s Ex. 59); (Oct. 14-15, 2021 Tr. at 470-

471). Furthermore, Detective Scott was able to determine that the first photograph

was uploaded to the “b[***]lovehoe” FetLife account on August 2, 2020. (Oct. 14-

15, 2020 Tr. at 471);(State’s Ex. 59).

{¶32} Investigator Scott described State’s Exhibit 71 as a summary of all

incoming and outgoing messages sent and received from Risner’s phone on

December 13, 2020 to December 15, 2020. (State’s Ex. 71); (Oct. 14-15, 2021 Tr.

at 360). The document includes multiple platforms including Kik Messenger,

TextNow, FetLife, instant messages, and standard text messages which was

compiled from Detective Sneary’s extraction of Risner’s phone and court-ordered

data Investigator Scott received from the relevant messaging and application

services. (State’s Ex. 71); (Oct. 14-15, 2021 Tr. at 475). A review of State’s Exhibit

71 reveals that Risner’s phone was accessing multiple services and applications

within minutes of sending sexually-suggestive messages via Kik Messenger to other

Kik Messenger users under the “b[***]lovehoe” account. (State’s Ex. 71).

{¶33} After reviewing the record, we find sufficient evidence to support each

of Risner’s convictions. We note that, with respect to his arguments relating to the

sufficiency of the evidence supporting his convictions, Risner’s arguments are

general and do not reference the specific convictions. For instance, Risner argues

that a CPO pursuant to R.C. 3113.31 was not in effect during the dates of the

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offenses. Specifically, Risner argues that the protection order filed on June 2, 2020,

was not a protection order pursuant to R.C. 3113.31. We disagree.

{¶34} The State introduced three CPOs requiring Risner to stay at least 500

feet from R.R. and forbidding him from having direct or indirect contact with her.

As detailed above, State’s Exhibit 1, a CPO issued on June 12, 2019 in Hardin

County Common Pleas Court case number 2019-3051-DRH explicitly states that it

was issued pursuant to R.C. 3113.31. The CPO specified that it was in effect until

June 12, 2020. State’s Exhibit 2, a CPO issued on August 26, 2019, served as an

amendment to the original CPO (State’s Exhibit 1) and allowed for Risner to attend

some of his minor children’s athletic events. The document specified that the

protection order expired on August 26, 2020. State’s Exhibit 2 also explicitly states

that it was issued pursuant to R.C. 3113.31.

{¶35} On June 2, 2020, the Hardin County Court of Common Pleas issued a

third protection order in Hardin County case number 2019-3051-DRH. The filing

states that Risner has “failed to comply with the terms and conditions of the original

civil protection order” specifically by “mov[ing] to a residence a few houses from

[R.R.’s residence] which supports the continued mind games and mental abuse.”

(State’s Ex. 3). Accordingly, the document states that “[t]he civil protection order

* * * remains in full force and effect and is extended to June 2, 2022.”

-19- Case Nos. 6-21-12, 6-21-13

{¶36} Risner argues that the third protection order, which was in effect at the

time of the offenses, was not issued pursuant to R.C. 3113.31. We disagree.

Although State’s Exhibit 3 does not explicitly reference R.C. 3113.31, the express

purpose of the document is to extend the protection order issued pursuant to R.C.

3113.31 on August 26, 2019 for an additional two years. Accordingly, a review of

the relevant documents indicates that a protection order issued pursuant to R.C.

3113.31 was in effect at the time of the offenses.

{¶37} Next, Risner argues that his convictions are supported by insufficient

evidence because the evidence produced at trial “failed to prove that it was [Risner]

that initiated the events in question.” (Appellant’s Brief at 6). Risner alleges that

because there was no eyewitness testimony establishing that he was the one making

the contacts with R.R., the evidence is insufficient to support his convictions. We

disagree.

{¶38} Here, Risner essentially argues that his convictions are not supported

by sufficient evidence because some of the elements of the offenses are supported

by circumstantial rather than direct evidence. However, “circumstantial evidence

and direct evidence inherently possess the same probative value and therefore

should be subjected to the same standard of proof.” State v. Jenks,

(1991), paragraph one of the syllabus, superseded by state constitutional

amendment on other grounds, State v. Smith,

(1997). “A

-20- Case Nos. 6-21-12, 6-21-13

conviction may be sustained based on circumstantial evidence alone.” State v.

Franklin,

(1991). “[I]n some instances, certain facts may

be established by circumstantial evidence” and a conviction based thereon is “no

less sound than one based on direct evidence.” State v. Smith, 12th Dist. Butler No.

CA2008-03-064,

, ¶ 80. “If the state ‘relies on circumstantial

evidence to prove an [essential] element of the offense charged, there is no

[requirement that the evidence must be] irreconcilable with any reasonable theory

of innocence in order to support a conviction[,]’ so long as the jury is properly

instructed as to the burden of proof, i.e., beyond a reasonable doubt.” State v. Bates,

6th Dist. Williams No. WM-12-002,

, ¶ 50, quoting Jenks at

paragraph one of the syllabus.

{¶39} Accordingly, we are not persuaded by Risner’s arguments that the

evidence was insufficient to support his convictions because certain facts were

established by circumstantial rather than direct evidence. Rather, an overwhelming

amount of circumstantial evidence was presented at trial that, if believed, could

establish that Risner was the perpetrator of the offenses.

Manifest Weight

{¶40} We next address Risner’s arguments that his convictions are against

the manifest weight of the evidence. In support of his position, Risner makes three

arguments, which we address in turn.

-21- Case Nos. 6-21-12, 6-21-13

{¶41} First, Risner argues that his convictions are against the manifest

weight of the evidence due to alleged “errors” by the detectives who investigated

the case. Risner alleges that the alleged errors present in the State’s evidence rise

to the level of being “unacceptable.” (Appellant’s Brief at 8-9).

{¶42} Specifically, Risner points to State’s Exhibit 13, Detective Sneary’s

report relating to the extraction of Risner’s phone. During his testimony, Detective

Sneary admitted that his original report, filed on December 24, 2020 contained a

typographical error relating to some of the GPS coordinates. The record indicates

Detective Sneary erroneously copied and pasted the GPS coordinates for one time

point into several different timepoints. Accordingly, on September 30, 2021,

Detective Sneary submitted a supplemental update to his report wherein he

acknowledged, explained, and corrected the error. (State’s Ex. 13). Detective

Sneary explained for the jury the error in his original report and his correction via a

supplemental report. (Oct. 14-15, 2021 Tr. at 314-316); (State’s Ex. 13).

Accordingly, there was no incorrect evidence presented to the jury that could have

misled them.

{¶43} Next, Risner argues that R.R. was not a credible witness and that the

jury committed reversible error by believing her testimony. Specifically, Risner

alleges that R.R. posted nude photographs of herself on the internet approximately

three years ago, and that she lied by denying the same during her testimony. Risner

-22- Case Nos. 6-21-12, 6-21-13

contends that because R.R. was allegedly not forthcoming about posting intimate

photographs of herself online several years before the relevant offenses, the jury

abused its discretion by considering her unrefuted testimony.

{¶44} We reject Risner’s argument. “‘Although we review credibility when

considering the manifest weight of the evidence, the credibility of witnesses is

primarily a determination for the trier of fact.’” State v. Chute, 3d Dist. Union No.

14-22-02,

, quoting State v. Banks, 8th Dist. Cuyahoga No.

96535,

, citing State v. DeHass,

(1967),

paragraph one of the syllabus.

{¶45} Here, the jury had the opportunity to observe R.R. and the State’s

witnesses and, as such, “is best able ‘to view the witnesses and observe their

demeanor, gestures[,] and voice inflections, and use these observations in weighing

the credibility of the proffered testimony.’” Banks at ¶ 31, quoting State v. Wilson,

,

, ¶ 24, citing Seasons Coal Co., Inc. v.

Cleveland,

(1984). Furthermore, the jury “was in the best

position to weigh the evidence, and was free to believe all, some or none of [R.R.’s]

testimony.” State v. Muhleka, Montgomery No. 19827,

,

citing State v. Jackson,

(4th Dist. 1993). Additionally, Risner

had the opportunity to present evidence impeaching R.R.’s testimony regarding

whether or not she posted intimate photographs of herself several years prior, but

-23- Case Nos. 6-21-12, 6-21-13

he failed to present such evidence, if it exists. Regardless, upon review of the

record, we do not conclude that the jury’s witness-credibility determinations were

unreasonable in light of the evidence presented at trial.

{¶46} Finally, Risner argues that his convictions were against the manifest

weight of the evidence because a “multitude of inadmissible evidence, testimony,

and exhibits * ** were erroneously admitted [over] objection.” (Appellant’s Brief

at 9). In support of his argument, Risner alleges that the trial court erred by

admitting several pieces of evidence over Risner’s objection. Risner summarily

argues that the admission of several exhibits and pieces of testimony rendered his

convictions against the manifest weight of the evidence. However, this claim is not

a proper manifest-weight or sufficiency-of-evidence argument. Furthermore,

Risner fails to properly develop any argument he may have relating to the

admissibility of the evidence. Moreover, we decline to adopt Risner’s presumption

that the trial court erred by admitting every piece of evidence that he objected to at

trial.

{¶47} Notwithstanding Risner’s arguments, we have little difficulty

concluding that his convictions are not against the manifest weight of the evidence.

As previously discussed, the State presented overwhelming evidence demonstrating

Risner’s guilt. “A verdict is not against the manifest weight of the evidence because

the finder of fact chose to believe the State’s [evidence] rather than the defendant’s

-24- Case Nos. 6-21-12, 6-21-13

version of the events.” State v. Martinez, 9th Dist. Wayne No. 12CA0054, 2013-

Ohio-3189, ¶ 16. Thus, Risner’s convictions are not against the manifest weight of

the evidence.

{¶48} Risner’s first assignment of error is overruled.

Assignment of Error No. II

Appellant received ineffective assistance of counsel due to counsel’s serious errors so deficient that it deprived Appellant of a fair trial because counsel failed to subpoena a significant witness, and because the cumulative effects of counsel’s errors resulted in ineffective assistance of counsel as a whole.

{¶49} In his second assignment of error, Risner argues that he received

ineffective assistance of trial counsel. Risner claims his trial counsel was ineffective

for failing to subpoena an exculpatory witness Risner claims is material to his

defense.

{¶50} “In criminal proceedings, a defendant has the right to effective

assistance of counsel under both the United States and Ohio Constitutions.” State

v. Evick, 12th Dist. Clinton No. CA2019-05-010,

. A

defendant asserting a claim of ineffective assistance of counsel must establish: (1)

counsel’s performance was deficient or unreasonable under the circumstances; and

(2) the deficient performance prejudiced the defendant. State v. Kole,

, 306 (2001), citing Strickland v. Washington,

,

(1984). In order to show counsel’s conduct was deficient or unreasonable, the

-25- Case Nos. 6-21-12, 6-21-13

defendant must overcome the presumption that counsel provided competent

representation and must show that counsel’s actions were not trial strategies

prompted by reasonable professional judgment.

. Counsel is

entitled to a strong presumption that all decisions fall within the wide range of

reasonable professional assistance. State v. Sallie,

(1998).

Tactical or strategic decisions, even if unsuccessful, do not generally constitute

ineffective assistance of counsel. State v. Frazier,

(1991).

Rather, the errors complained of must amount to a substantial violation of counsel’s

essential duties to his client. See State v. Bradley,

(1989).

{¶51} Prejudice results when “‘there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.’”

, quoting

. “‘A reasonable probability

is a probability sufficient to undermine confidence in the outcome.’”

quoting

.

{¶52} The record indicates that after the State rested, Risner’s trial counsel

requested a continuance so she could subpoena a witness, namely Risner and R.R.’s

19-year-old son, Riley. According to the record, Riley was at the courthouse during

the first and second days of trial; however, he apparently voluntarily left the building

-26- Case Nos. 6-21-12, 6-21-13

prior to the defense’s case-in-chief. The trial court denied Risner’s trial counsel’s

motion for a continuance.

{¶53} Risner claims that Riley had access to Risner’s cellular phone and

“may have testified he or his brother had made the contacts” with the victim.

(Appellant’s Brief at 12). Risner further postulates that Riley may have testified

that R.R. posted intimate photographs of herself on the internet in 2017, thereby

impeaching some of R.R.’s testimony.

{¶54} “The decision whether or not to call witnesses is generally a matter of

trial strategy and, absent a showing of prejudice, does not deprive a defendant of

effective assistance of counsel.” State v. Bofia, 3d Dist. Henry No. 7-03-12, 2004-

Ohio-3018, quoting State v. Utz, 3d Dist. Crawford No. 3-03-38,

.

{¶55} Here, Risner invites us to indulge his assumption that Riley would

have testified that either Riley or his younger brother, who is a minor, used Risner’s

phone to send sexually-explicit messages to their mother and created an account

with their mother’s name and likeness on a sexually-oriented social-networking

website and had contact with other members of the website while posing as their

mother, all without Risner’s knowledge or consent. “Inviting an appellate court to

speculate about hypothetical material is not proper grounds for reversal under

ineffective assistance of counsel.” State v. Manley, 3d Dist. Allen No. 1-17-06,

-27- Case Nos. 6-21-12, 6-21-13

. Moreover, not only is Risner’s assumption based entirely

on speculation, it defies logic and is inconsistent with the evidence presented at trial.

Furthermore, it is perfectly reasonable for Risner’s trial counsel to conclude that

Riley’s testimony could lead to damaging evidence against Risner. Accordingly,

we are unwilling to speculate that the outcome of the trial would have been different

if trial counsel had subpoenaed Riley. See State v. Norville, 3d Dist. Seneca No. 13-

18-14,

.

{¶56} Risner’s second assignment of error is overruled.

Appellate Case Number 6-21-12

{¶57} In his appellate brief, Risner assigns error only with respect to case

number CRI 20212080. None of Risner’s arguments on appeal relate to his

convictions and sentences in case number CRI 20202053. App.R. 16 requires that

the appellant’s brief contain “[a] statement of the assignments of error presented for

review” as well as “[a]n argument containing the contentions of the appellant with

respect to each assignment of error presented for review and the reasons in support

of the contentions.” App.R. 16(A)(3), (7). Here, Risner’s brief does not contain a

statement of the assignments of error specific to case number CRI 20202053.

Therefore, appellate case number 6-21-12, Risner’s appeal from the trial court’s

judgment in case number CRI 20202053, is dismissed. See State v. Boedicker, 3d

-28- Case Nos. 6-21-12, 6-21-13

Dist. Allen Nos. 1-22-03 and 1-22-04,

; State v. Kilgour, 3d

Dist. Marion Nos. 9-16-04 and 9-16-05,

.

Conclusion

{¶58} For the foregoing reasons, Risner’s assignments of error are overruled.

Having found no error prejudicial to the appellant herein in the particulars assigned

and argued, we affirm the judgment of the Hardin County Court of Common Pleas

in case number CRI 20212080, appellate case number 6-21-13. The appeal in case

number CRI 20202053, appellate case number 6-21-12, is dismissed.

Appeal Dismissed in Case No. 6-21-12

Judgment Affirmed in Case No. 6-21-13

SHAW and WILLAMOWSKI, J.J., concur.

/jlr

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