State v. Cunningham

[Cite as State v. Cunningham, 2017-Ohio-4363.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :
CASE NO. CA2016-04-083
Plaintiff-Appellee, :
OPINION
: 6/19/2017
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:

PHILLIP CUNNINGHAM, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2015-08-1217

Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Scott N. Blauvelt, 315 S. Monument Avenue, Hamilton, Ohio 45011, for defendant-appellant

S. POWELL, J.

{¶ 1} Defendant-appellant, Phillip Cunningham, appeals his convictions in the Butler

County Court of Common Pleas for one count of murder and one count of endangering

children. For the reasons outlined below, we affirm in part, reverse in part, and remand for

further proceedings.

{¶ 2} On September 2, 2015, a Butler County grand jury indicted Cunningham with

one count of endangering children in violation of R.C. 2919.22(B)(1), a second-degree felony
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under R.C. 2919.22(E)(2)(d), and one count of murder in violation of R.C. 2903.02(B), an

unclassified felony. The charges stemmed from allegations that Cunningham shook his two-

month-old daughter ("the victim"), causing her to suffer traumatic and fatal brain injuries. The

endangering children charge was the predicate offense of the murder charge.

{¶ 3} At Cunningham's jury trial, the state's evidence showed that on July 20, 2015,

Cunningham was watching his son and the victim at Cunningham's parents' home in

Hamilton, Ohio. Cunningham's wife was away at work. Cunningham's parents were at the

home.

{¶ 4} At approximately 4:30 p.m., emergency responders arrived at the home in

response to Cunningham's mother's 9-1-1 call reporting that the victim was not breathing.

Responders took the victim to a nearby hospital where she was then transported to

Cincinnati Children's Hospital by helicopter.

{¶ 5} The victim never resumed breathing on her own. Medical staff intubated her to

provide oxygen. A CT scan revealed significant brain injuries. The victim passed away from

her injuries. Medical professionals pronounced her dead on July 22, 2015.

{¶ 6} Cunningham's wife testified that Cunningham called her at work and, without

providing context, said that the victim "just died in the swing."1 On the car ride to the hospital,

Cunningham told his wife he did not know what happened to the victim. Cunningham denied

knowledge of accidents, falls, or head trauma to the treating pediatrician at the children's

hospital.

{¶ 7} A Hamilton police detective spoke with Cunningham at the hospital.

Cunningham denied any knowledge of what caused the victim's injuries. The detective spoke

with Cunningham again the next day. Again, Cunningham denied any knowledge of how the

1. The "swing" referred to the victim's baby swing.
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victim was injured. The following day, Cunningham told detectives that he thought his mother

may have caused the victim's injuries.

{¶ 8} Detectives spoke with Cunningham again several days later. Cunningham said

that his mother told him a babysitter dropped the victim a week before the incident.

Cunningham also said that his mother admitted that she dropped the victim earlier on the day

of the incident while he was away from the home.

{¶ 9} Eventually, Cunningham admitted to detectives that he dropped the victim.

Cunningham said he was holding the victim and she went backwards and fell out of his arms

and onto the crown of her head. Cunningham denied shaking or throwing the victim.

{¶ 10} Two days later, detectives interviewed Cunningham once more. The detectives

videotaped the interview, which was later played for the jury. In the video, Cunningham

admitted to detectives that he would get frustrated sometimes and would "snap." He

confessed to dropping the victim and then becoming frustrated when she would not stop

crying. He shook her "to the point where she shut up." Cunningham estimated he shook the

victim with about half his strength for ninety seconds. He demonstrated on a stuffed animal

how he shook the victim. Cunningham acknowledged that the victim's injuries were caused

by shaking.

{¶ 11} The state introduced factual and expert opinion testimony from several medical

doctors involved in the victim's care and the post-mortem investigation. Their testimony

revealed that the victim suffered blunt impacts to her head, which caused fractures in her

skull. The doctors could not opine when the fractures occurred and there was some

indication that one of the fractures may have been from an earlier injury. There was also

bleeding deep within the victim's brain. Doctors opined that this was caused by significant

acceleration and deceleration of the victim's head relative to her neck. The brain injuries

were so traumatic that they caused the victim to die.
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{¶ 12} The doctors agreed that the victim's injuries were the result of non-accidental

trauma. The doctors further agreed that substantial force would be required to cause the

victim's fatal brain injuries and that the injuries were not consistent with a fall from chest

height onto the crown of the victim's head. The pathologist who performed the autopsy

opined that the manner of death was homicide.

{¶ 13} A jury returned guilty verdicts on both counts of the indictment. The trial court

merged the endangering children count with the murder count. The court sentenced

Cunningham on the murder count to fifteen years to life in prison. Cunningham assigns five

errors for our review.

{¶ 14} Assignment of Error No. 1:

{¶ 15} THE EVIDENCE WAS INSUFFICIENT TO SUPPORT A CONVICTION FOR

ENDANGERING CHILDREN, AND THE VERDICT ON THIS COUNT WAS CONTRARY TO

THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶ 16} Assignment of Error No. 2:

{¶ 17} THE EVIDENCE WAS INSUFFICIENT TO SUPPORT A CONVICTION FOR

MURDER, AND THE VERDICT ON THIS COUNT WAS CONTRARY TO THE MANIFEST

WEIGHT OF THE EVIDENCE.

{¶ 18} In his first and second assignments of error, Cunningham argues his

convictions for murder and the predicate offense of endangering children were not supported

by sufficient evidence and were otherwise against the manifest weight of the evidence.

Specifically, Cunningham argues that the evidence was insufficient to establish that his

conduct resulted in the injuries suffered by the victim. Cunningham also argues that the

evidence failed to establish that he acted recklessly.

{¶ 19} When reviewing the sufficiency of the evidence underlying a criminal conviction,

an appellate court examines the evidence to determine whether such evidence, if believed,
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would convince the average mind of the defendant's guilt beyond a reasonable doubt. State

v. Intihar, 12th Dist. Warren No. CA2015-05-046, 2015-Ohio-5507, ¶ 9. The 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." State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.

In other words, "the test for sufficiency requires a determination as to whether the state has

met its burden of production at trial." State v. Boles, 12th Dist. Brown No. CA2012-06-012,

2013-Ohio-5202, ¶ 34, citing State v. Wilson, 12th Dist. Warren No. CA2006-01-007, 2007-

Ohio-2298, ¶ 33. When evaluating the sufficiency of the evidence, this court must view all

evidence in the light most favorable to the state and "defer to the trier of fact on questions of

credibility and the weight assigned to the evidence." State v. Kirkland, 140 Ohio St.3d 73,

2014-Ohio-1966, ¶ 132.

{¶ 20} On the other hand, a manifest weight of the evidence challenge examines the

"inclination of the greater amount of credible evidence, offered at a trial, to support one side

of the issue rather than the other." State v. Barnett, 12th Dist. Butler No. CA2011-09-177,

2012-Ohio-2372, ¶ 14. To determine whether a conviction is against the manifest weight of

the evidence, the reviewing court must look at the entire record, weigh the evidence and all

reasonable inferences, consider the credibility of the witnesses, and determine whether in

resolving the 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.

State v. Morgan, 12th Dist. Butler Nos. CA2013-08-146 and CA2013-08-147, 2014-Ohio-

2472, ¶ 34. An appellate court will overturn a conviction due to the manifest weight of the

evidence only in extraordinary circumstances when the evidence presented at trial weighs

heavily in favor of acquittal. State v. Blair, 12th Dist. Butler No. CA2014-01-023, 2015-Ohio-

818, ¶ 43.
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{¶ 21} "The legal concepts of sufficiency of the evidence and weight of the evidence

are both quantitatively and qualitatively different." State v. Thompkins, 78 Ohio St.3d 380

(1997), paragraph two of the syllabus. Nevertheless, although the two concepts are different,

a finding that a conviction is supported by the manifest weight of the evidence is also

dispositive of the issue of sufficiency. State v. Jones, 12th Dist. Butler No. CA2012-03-049,

2013-Ohio-150, ¶ 19. Therefore, "[b]ecause sufficiency is required to take a case to the jury,

a finding that a conviction is supported by the weight of the evidence must necessarily

include a finding of sufficiency." State v. Hart, 12th Dist. Brown No. CA2011-03-008, 2012-

Ohio-1896, ¶ 43.

Murder in Violation of R.C. 2903.02(B)

{¶ 22} The jury convicted Cunningham of murder in violation of R.C. 2903.02(B), an

unclassified felony. Under that statute, no person shall cause the death of another "as a

proximate result of the offender's committing or attempting to commit an offense of violence

that is a felony of the first or second degree and that is not a violation of section 2903.03

[voluntary manslaughter] or 2903.04 [involuntary manslaughter] of the Revised Code."

Pursuant to R.C.2919.22(E)(2)(d) and R.C. 2901.01(A)(9)(a), endangering children in

violation of R.C. 2919.22(B)(1) is a second-degree felony and is considered an "offense of

violence" that may serve as a predicate offense for murder in violation of R.C. 2903.02(B).

The predicate offense for Cunningham's murder charge was the offense of second-degree

felony endangering children. Therefore, the state was required to prove beyond a

reasonable doubt that Cunningham committed the offense of second-degree felony

endangering children.

Endangering Children in Violation of R.C. 2919.22(B)(1)

{¶ 23} Endangering children in violation of R.C. 2919.22(B)(1) as charged as a

second-degree felony under R.C. 2919.22(E)(2)(d), provides that no person shall "abuse" a
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child, thereby causing the child to suffer "serious physical harm." The word "abuse" is not

defined by the criminal statutes. State v. Litton, 12th Dist. Preble No. CA2016-04-005, 2016-

Ohio-7913, ¶ 22, citing State v. Hickman, 8th Dist. Cuyahoga No. 99442, 2013-Ohio-4192, ¶

19. However, as relevant here, the term "child abuse" has been defined as "'an act which

inflicts serious physical harm or creates a substantial risk of serious harm to the physical

health or safety of the child.'" State v. Haley, 12th Dist. Butler No. CA2012-10-211, 2013-

Ohio-4123, ¶ 10, quoting State v. Burdine-Justice, 125 Ohio App.3d 707, 714 (12th

Dist.1998). The term "child abuse" has also been described as "'any form of cruelty to a

child's physical, moral or mental well-being.'" State v. Cooper, 147 Ohio App.3d 116, 122,

2002-Ohio-617 (12th Dist.), quoting State v. Ivey, 98 Ohio App.3d 249, 258 (8th Dist.1994).

Serious physical harm includes "[a]ny physical harm that carries a substantial risk of death."

R.C. 2901.01(A)(5)(b).

{¶ 24} The victim's mother testified that on July 19, 2015 – the day before the shaking

incident – the victim was healthy and "acting fine." She was making noises, eating, and filling

her diaper. The victim had a bruise on her eyebrow from where her cousin had hit her with a

"sweeper." Cunningham's mother testified that she saw no injuries or anything unusual in her

interactions with the victim at her home earlier on July 20.

{¶ 25} In his videotaped interview, Cunningham admitted that he dropped the victim.

Angered because she would not stop crying, Cunningham picked her up, held her up in front

of him, and then shook her with half his strength for 90 seconds until she stopped crying. He

demonstrated the force with which he shook the baby and it was clear that the force was

significant.

{¶ 26} Having suffered a traumatic and complete brain injury from being shook, the

victim stopped breathing. She never resumed breathing on her own. The victim suffered

hemorrhaging deep within her brain, which doctors opined was consistent with a significant
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event of acceleration and deceleration of the head relative to the neck. This event led to a

complete injury of the brain and, ultimately, death. This evidence demonstrates that

Cunningham's convictions for child endangering under R.C. 2919.22(B)(1) and murder under

R.C. 2903.02(B) were supported by the manifest weight of the evidence and that the jury did

not lose its way in convicting him.

{¶ 27} With respect to Cunningham's argument alleging that the state failed to prove

he acted recklessly, the culpable mental state for endangering children in violation of R.C.

2919.22(B)(1) is that of recklessness. State v. Tompkins, 12th Dist. Butler No. CA2014-07-

159, 2015-Ohio-2316, ¶ 13; State v. Adams, 62 Ohio St.2d 151 (1980), paragraph one of the

syllabus. R.C. 2901.22(C) defines the culpable mental state of recklessness:

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.

{¶ 28} Cunningham admitted that he would get angry and "snap" and agreed with

investigators that the sound of a baby crying is one of the "most annoying sounds in the

world." He said the victim was crying and would not stop so he shook the victim with half his

strength for at least ninety seconds until "the point where she shut up." Cunningham

conceded that shaking the victim caused her injuries. Finally, Cunningham immediately

began to lie to his wife, the treating physician, and police about whether he was aware of

what happened to his child. This was evidence upon which the jurors could readily conclude

that Cunningham acted with heedless indifference towards the victim's well-being in shaking

her so that she would be quiet. The jury did not lose its way in this regard.

{¶ 29} Cunningham also argues there was some evidence at trial indicating that the

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victim suffered earlier injuries, including a skull fracture that may have been in the healing

stages at the time of the victim's death. Doctors could not opine as to when that fracture

occurred. Nonetheless, the doctors' expert opinions were clear that the deep hemorrhaging

and complete brain injury suffered by the victim were not caused by a blunt impact, such as a

fall. Instead, the injuries were the result of significant acceleration and deceleration of the

victim's head. Cunningham's admission as to the way he shook the victim was consistent

with the injuries she suffered. Accordingly, the jury did not lose its way in convicting

Cunningham of murder or the predicate offense of endangering children. Our conclusion that

the manifest weight of the evidence supports Cunningham's conviction is dispositive as to the

issue of sufficiency on both counts. Hart, 2012-Ohio-1896 at ¶ 43. Cunningham's first and

second assignments of error are overruled.

{¶ 30} Assignment of Error No. 3:

{¶ 31} THE TRIAL COURT ERRED IN PROVIDING JURY INSTRUCTIONS WHICH

WERE INCORRECT AS A MATTER OF LAW.

{¶ 32} Cunningham argues that the court erred by improperly instructing jurors on the

culpable mental state for the endangering children offense. During trial, and after the close

of the state's case-in-chief, the parties discussed jury instructions. Defense counsel

indicated concerns with the court's draft instruction on the endangering children offense, and

specifically with respect to the instruction on the culpable mental state of "recklessly."

Defense counsel asked the court to include an additional instruction defining the word "risk."

"Risk" appears within the statutory definition of recklessly. And counsel noted that "risk" was

defined in the comments to the Ohio Jury Instructions on "recklessly." See Ohio Jury

Instructions, CR 417.17. The state had no objection to defense counsel's request and so

the court added the requested language.

{¶ 33} The final jury instruction regarding endangering children stated:
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Under Count Two of the indictment, the Defendant Phillip
Cunningham is charged with endangering children. Before you
can find the Defendant guilty of endangering children you must
first find beyond a reasonable doubt that on or about July 20,
2015, in Butler County, Ohio, the Defendant recklessly abused a
child under the age of eighteen, resulting in serious physical
harm to the child involved.

The essential elements of the offense of endangering children
are:

(1) That the Defendant Phillip Cunningham did;

(2) Recklessly;

(3) Abuse a child;

(4) When the child is less than eighteen (18) years
of age;

(5) The abuse resulted in serious physical harm to
the child;

(6) In Butler County, Ohio

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 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. Risk means a significant possibility, as contrasted
with a remote possibility, that a certain result may occur or that
certain circumstances may exist. 2

2. {¶ a} Prior to March 23, 2015, the Revised Code defined recklessly as follows:

{¶ b} (C) A person acts recklessly when, with heedless indifference to the
consequences, he perversely disregards a known risk that his 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, he perversely disregards a known risk that such
circumstances are likely to exist. R.C. 2901.22(C) (1974). (Emphasis
added.)

{¶ c} Accordingly, before the 2015 amendment, there had to be more than just a failure to perceive a dangerous
risk, one had to recognize the risk. Therefore, the 2015 amendment lowered the standard of proof with respect
to the culpable mental state of recklessness.
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(Emphasis added.)

{¶ 34} Chapter 29 of the Revised Code defines "risk" as set forth in the instruction

above. R.C. 2901.01(A)(7). "Substantial risk," however, is defined as "a strong possibility, as

contrasted with a remote or significant possibility, that a certain result may occur or that

certain circumstances may exist." R.C. 2901.01(A)(8). Accordingly, Cunningham's argument

in this assignment of error is that the statutory definition of recklessly refers to a "substantial

and unjustifiable risk" and as such the jury should have been instructed on "substantial risk,"

not "risk." Cunningham argues that the jury instruction prejudiced him because the state was

required to prove that he disregarded a danger that had a "strong" possibility of occurring,

which the legislature made clear was distinct from the lesser "significant" possibility

associated with a mere "risk." Thus, Cunningham contends that the jury was permitted to

convict him based on a lower standard of proof as to his mental state than the state was

required to prove.

{¶ 35} The state argues that the court did not err by providing the statutory definition of

risk. The state contends that the legislature was aware that it had defined the phrase

"substantial risk" and purposefully chose to employ the phrase "substantial and unjustifiable

risk," intentionally separating the words "substantial" and "risk." The legislature intended for

the adjectives "substantial" and "unjustifiable" to modify the statutorily defined term, "risk."

"Substantial" and "unjustifiable" are not defined within Revised Code Chapter 29. Therefore,

the jury would use its understanding of the ordinary meaning of those adjectives to determine

how they modify the statutory definition of "risk."

{¶ 36} Cunningham concedes that he failed to object to the claimed erroneous jury

instruction and is limited to a review for plain error. "Notice of plain error under Crim.R. 52(B)

is to be taken with the utmost caution, under exceptional circumstances and only to prevent a

manifest miscarriage of justice." State v. Adams, 62 Ohio St.2d 151, 153 (1980). Generally,
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a defendant is entitled to have the court instruct the jury "on all elements that must be proved

to establish the crime with which he is charged, and, where specific intent or culpability is an

essential element of the offense, a trial court's failure to instruct on that mental element

constitutes error." Id. at 153. However, the court's failure to give a jury instruction does not

always amount to plain error: "[o]nly by reviewing the record in each case can the probable

impact of such a failure be determined, and a decision reached as to whether substantial

prejudice may have been visited on the defendant, thereby resulting in a manifest

miscarriage of justice." Id. at 154; see also State v. Wamsley, 117 Ohio St.3d 388, 2008-

Ohio-1195.

{¶ 37} The Ohio Supreme Court has also held that plain error did not exist where a

trial court gave an allegedly incorrect instruction on criminal purpose and confusing

instructions as to causation and foreseeability. State v. Campbell, 69 Ohio St.3d 38, 48-49

(1994). The court noted that the defendant failed to object to these instructions and thus was

required to demonstrate that the trial's outcome "clearly would have been different but for the

alleged errors." Id. at 49. In its view, the court found that the challenged instructions did not

"demonstrably determine" the outcome. The court noted that in addition to the allegedly

incorrect or confusing instructions, the trial court gave one instruction that was a correct

statement of the law. Therefore, the court concluded that it was impossible to say whether

the jurors applied the correct instruction or the incorrect instructions and thus the court could

not say the jury clearly would have acquitted the defendant. Finally, the court noted that

there was strong evidence in the case of a specific intent to commit the crime. Id.

{¶ 38} This court has also applied a plain error standard of review to a claimed

erroneous jury instruction. State v. Cope, 12th Dist. Butler No. CA2009-11-285, 2010-Ohio-

6430, ¶ 61-62. In Cope, we concluded that the failure to include the language "against her

will" in jury instructions on kidnapping did not amount to plain error. We observed that the
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instructions contained a reference to the element of force used in restraint and that it would

necessarily be implied that that the victim was held against her will. Id. at ¶ 61. Accordingly,

this court concluded that the outcome of the trial would not clearly have been different but for

the alleged error. Id. at ¶ 62.

{¶ 39} Based on the plain error standard of review, we conclude that it is unnecessary

to resolve the question of whether the court erred in instructing the jury on "risk" instead of

"substantial risk." To demonstrate plain error, Cunningham must clearly demonstrate that the

jury would have concluded that the state did not prove beyond a reasonable doubt that he

acted recklessly because they received this instruction:

{¶ 40} "Risk" means a significant possibility, as contrasted with a remote possibility,

that a certain result may occur or that certain circumstances may exist. R.C. 2901.01(A)(7).

{¶ 41} Instead of this instruction:

{¶ 42} "Substantial risk" means a strong possibility, as contrasted with a remote or

significant possibility, that a certain result may occur or that certain circumstances may exist.

R.C. 2901.01(A)(8).

{¶ 43} As was discussed in response to Cunningham's first and second assignments

of error, the evidence overwhelmingly demonstrated that Cunningham acted recklessly in the

way he chose to stop his daughter from crying. Cunningham admitted he would often get

angry and frustrated and sometimes he would "snap." He became frustrated with his

daughter because she would not stop crying after he dropped her on her head. In response,

he shook her with half his strength for ninety second until "the point where she shut up." In

addition to this evidence, it is undisputed the court properly instructed the jury on the

statutory definition of "recklessly."

{¶ 44} Given these facts and the seemingly slight variations between the definitions of

"risk" and "substantial risk," we cannot say the jury clearly would have acquitted Cunningham
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had it been instructed on "substantial risk." Having thoroughly reviewed the record in this

case, we conclude that Cunningham did not suffer any injustice because of the jury

instruction. Consequently, Cunningham has not demonstrated plain error and this

assignment of error is overruled.

{¶ 45} Assignment of Error No. 4:

{¶ 46} APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AT

TRIAL.

{¶ 47} In his fourth assignment of error, Cunningham argues he received ineffective

assistance of counsel when his trial counsel requested the definition of the term "risk" be

added to the jury instructions as opposed to the definition of "substantial risk." Considering

our resolution of Cunningham's third assignment of error, we find no merit to Cunningham's

ineffective assistance of counsel claim. Therefore, Cunningham's fourth assignment of error

is overruled.

{¶ 48} Assignment of Error No. 5:

{¶ 49} APPELLANT'S SENTENCE WAS CONTRARY TO LAW.

{¶ 50} In his fifth assignment of error, Cunningham argues the trial court erred by

imposing court costs in its sentencing entry when it failed to notify him that it was imposing

court costs during his sentencing hearing. The state concedes that the trial court erred.

{¶ 51} In State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, the Ohio Supreme Court

held that a trial court errs by imposing court costs in its sentencing entry when it failed to

impose those costs in open court at the defendant's sentencing hearing. Id. at ¶ 22. When

such an error occurs, the remedy is to remand for the limited purpose to allow the defendant

to move the trial court for a waiver of payment of court costs. Id. at ¶ 22-23.

{¶ 52} Upon review of the record, the trial court did not impose court costs during

Cunningham's sentencing hearing. Thus, as the Ohio Supreme Court stated in Joseph,
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Cunningham suffered harm in that he was denied the opportunity to claim indigency and

seek a waiver of those costs before the trial court. Id. This court has consistently held the

same in addressing this exact issue. See, e.g., State v. Rigsby, 12th Dist. Butler No.

CA2016-06-121, 2017-Ohio-329, ¶ 5-6; State v. Howard, 12th Dist. Butler No. CA2014-04-

091, 2015-Ohio-158, ¶ 9; State v. Simmonds, 12th Dist. Clermont No. CA2011-05-038, 2012-

Ohio-1479, ¶ 37. Therefore, Cunningham's fifth assignment of error is sustained and his

sentence is reversed and remanded for the limited purpose of imposing court costs in

accordance with the Ohio Supreme Court's holding in Joseph.

{¶ 53} Judgment affirmed in part, reversed in part, and remanded for further

proceedings.

HENDRICKSON, P.J., and PIPER, J., concur.

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