[Cite as State v. Wilson,
2025-Ohio-3038.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, Case No. CT2025-0011
Plaintiff - Appellee Opinion And Judgment Entry
-vs- Appeal from the Muskingum County Court of
Common Pleas, Case No. CR2024-0672
JEREMIAH WILSON
Judgment: Affirmed
Defendant - Appellant
Date of Judgment Entry: August 25, 2025
BEFORE: Craig R. Baldwin; Kevin W. Popham; David M. Gormley, Appellate Judges
APPEARANCES: JOSEPH A. PALMER, Assistant Prosecuting Attorney for Muskingum
County, Ohio, for Plaintiff-Appellee; CHRISTOPHER BAZELEY, for DefendantAppellant.
OPINION
Baldwin, P.J.
STATEMENT OF FACTS AND CASE
{¶1} The appellant lived with his elderly mother, victim D.W., who told the
appellant that he could stay with her on the condition that no drugs were permitted in her
home. In addition, D.W. allowed the appellant to use one of her two cellular telephones.
{¶2} On or about October 4, 2024, D.W. overheard the appellant talking on
D.W.’s cell phone and arranging a meeting with someone in an alley. D.W., who had
observed drug paraphernalia in the appellant’s bedroom, demanded the appellant return
her cell phone, and reiterated her condition that no drugs were permitted in her home.
The appellant became angry and began yelling at D.W. D.W. tried to grab for her phone,
and the argument escalated. The appellant went into his bedroom and slammed the door.
When D.W. opened the door and said, “no slamming the door,” the appellant got up from
his bed and came at D.W. D.W. became afraid for her physical safety and threw a spoon
rest in the appellant’s direction, which landed on his bed. When it appeared that the
appellant was going to slam the door again, D.W. grabbed a chair, and it hit the door. The
appellant exited his bedroom and grabbed D.W., slammed her against the stove, and
started choking her. D.W. told the appellant to get off her, and he released her. However,
he came back at D.W. and hit her again. As the appellant moved towards the kitchen
table, D.W. tried once more to grab her phone. The appellant hit D.W. “into the microwave
stand”, causing D.W. to land on the tile floor on her elbow and arm, resulting in injury. The
appellant fled with D.W.’s phone as she screamed for someone to “call the law.”
{¶3} On October 9, 2024, the appellant was indicted on the following charges:
• Count One, Disrupting Public Services in violation of R.C. 2909.04(A)(1), a
felony of the fourth degree;
• Count Two, Felonious Assault in violation of R.C. 2903.11(A)(1), a felony of
the second degree, with a Repeat Violent Offender specification pursuant
to R.C. 2941.149(A);
• Count Three, Aggravated Robbery in violation of R.C. 2911.01(A)(3), a
felony of the first degree, with a Repeat Violent Offender specification
pursuant to R.C. 2941.149(A);
• Count Four, Robbery in violation of R.C. 2911.02(A)(2), a felony of the
second degree, with a Repeat Violent Offender specification pursuant to
R.C. 2941.149(A);
• Count Five, Strangulation in violation of R.C. 2903.18(B)(1), a felony of the
second degree, with a Repeat Violent Offender specification pursuant to
R.C. 2941.149(A);
• Count Six, Strangulation in violation of R.C. 2903.18(B)(2), a felony of the
third degree; and,
• Count Seven, Domestic Violence in violation of R.C. 2919.25, a felony of
the third degree.
The appellant pleaded not guilty and was appointed counsel.
{¶4} The matter went to trial on December 17, 2024. The appellee presented the
testimony of the patrolman who responded to the call; the detective who investigated the
matter; the neighbor who heard the encounter and called 911; and, victim D.W. The jury
returned with a verdict of not guilty on the strangulation charges, and a verdict of guilty
on all remaining charges. The trial court ordered a presentence investigation, and ordered
both parties to submit sentencing memoranda.
{¶5} A sentencing hearing was held on January 29, 2025. The parties argued
their respective positions on sentencing, and the appellee noted that the appellant’s
Robbery and Aggravated Robbery convictions should merge for purposes of sentencing.
The trial court confirmed that the appellee wished to merge Counts Three and Four for
the purposes of sentencing, and further confirmed that the appellant had no objection to
said merger. Neither party brought up the merger of Count Two - Felonious Assault and
Count Seven - Domestic Violence for purposes of sentencing. The appellant was
sentenced as follows: on Count One, Disrupting Public Services, a stated prison term of
seventeen (17) months; on Count Two, Felonious Assault, a mandatory prison term of six
(6) years; on Count Three, Aggravated Robbery, a minimum mandatory prison term of
seven (7) years, and an indefinite prison term of ten and one half (10 ½) years; and, on
Count Seven, Domestic Violence, a stated prison term of thirty (30) months. The trial court
ordered further that the sentences be served concurrently, resulting in the imposition of
an aggregate indefinite sentence of seven (7) to ten and one half (10 ½) years.
{¶6} The appellant filed a timely appeal, and sets forth the following two
assignments of error:
{¶7} “I. WILSON’S TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO
ASSERT A SELF-DEFENSE DEFENSE WHEN ONE WAS JUSTIFIED BY THE
RECORD.”
{¶8} “II. THE TRIAL COURT ERRED WHEN IT FAILED TO MERGE WILSON’S
CONVICTIONS FOR FELONIOUS ASSAULT AND DOMESTIC VIOLENCE FOR
SENTENCING.”
{¶9} For the reasons set forth below, we overrule the appellant’s assignments of
error and affirm the decision of the trial court.
ASSIGNMENT OF ERROR NO. I
{¶10} The appellant argues in his first assignment of error that his trial counsel
was ineffective. We disagree.
Standard Of Review
{¶11} The standard of review for ineffective assistance of counsel was set forth in
the seminal case of Strickland v. Washington, 466 U.S. 668 (1984), and was discussed
by this court in Mansfield v. Studer,
2012-Ohio-4840 (5th Dist.):
A claim of ineffective assistance of counsel requires a two-prong
analysis. The first inquiry is whether counsel's performance fell below an
objective standard of reasonable representation involving a substantial
violation of any of defense counsel's essential duties to appellant. The
second prong is whether the appellant was prejudiced by counsel's
ineffectiveness. Lockhart v. Fretwell (1993), 506 U.S. 364,
113 S.Ct. 838
(1993); Strickland v. Washington (1984), 466 U.S. 668,
104 S.Ct.
2052(1984); State v. Bradley (1989),
42 Ohio St.3d 136,
538 N.E.2d
373(1989).
In order to warrant a finding that trial counsel was ineffective, the
petitioner must meet both the deficient performance and prejudice prongs
of Strickland and Bradley. Knowles v. Mirzayance, 556 U.S. 111,
129 S.Ct.
1411, 1419,
173 L.Ed.2d 251(2009).
To show deficient performance, appellant must establish that
“counsel's representation fell below an objective standard of
reasonableness.” Strickland v. Washington, 466 U.S. at 688,
104 S.Ct. at
2064. This requires showing that counsel made errors so serious that
counsel was not functioning as the “counsel” guaranteed the defendant by
the Sixth Amendment. Strickland v. Washington 466 U.S. at 687,
104 S.Ct.
at 2064. Counsel also has a duty to bring to bear such skill and knowledge
as will render the trial a reliable adversarial testing process. Strickland v.
Washington
466 U.S. at 688,
104 S.Ct. 2052 at 2065.
Thus, a court deciding an actual ineffectiveness claim must
judge the reasonableness of counsel's challenged conduct on the
facts of the particular case, viewed as of the time of counsel's
conduct. A convicted defendant making a claim of ineffective
assistance must identify the acts or omissions of counsel that are
alleged not to have been the result of reasonable professional
judgment. The court must then determine whether, in light of all the
circumstances, the identified acts or omissions were outside the
wide range of professionally competent assistance. In making that
determination, the court should keep in mind that counsel's
function, as elaborated in prevailing professional norms, is to make
the adversarial testing process work in the particular case. At the
same time, the court should recognize that counsel is strongly
presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional
judgment.
Strickland v. Washington, 466 U.S. 668 at 689,
104 S.Ct. at 2064.
In light of “the variety of circumstances faced by defense counsel
[and] the range of legitimate decisions regarding how best to represent a
criminal defendant,” the performance inquiry necessarily turns on “whether
counsel's assistance was reasonable considering all the circumstances.”
Strickland v. Washington, 466 U.S. 668 at 689,
104 S.Ct. at 2064. At all
points, “[j]udicial scrutiny of counsel's performance must be highly
deferential.” Strickland v. Washington, 466 U.S. 668 at 689,
104 S.Ct. at
2064.
Studer at ¶¶ 58-61. Thus, in order to prevail on an ineffective assistance of counsel
argument the appellant must establish two prongs: first, that his trial counsel’s
performance fell below an objective standard of reasonable representation involving a
substantial violation of an essential duty to the appellant; and second, that the appellant
was prejudiced by the alleged ineffectiveness.
Analysis
{¶12} The appellant engaged in a violent confrontation with his elderly mother
over his continued possession of her cell phone and his use of drugs in her home. On
appeal, he argues that his trial counsel was ineffective because he failed “to assert a self-
defense defense when one was justified by the record.” We disagree.
{¶13} The elements of self-defense were discussed by the Ohio Supreme Court
in the case of State v. Messenger, 2022-Ohio-4562:
A self-defense claim includes the following elements:
(1) that the defendant was not at fault in creating the situation giving
rise to the affray; (2) that the defendant had a bona fide belief that he
[or she] was in imminent danger of death or great bodily harm and that
his [or her] only means of escape from such danger was in the use of
such force; and (3) that the defendant did not violate any duty to retreat
or avoid the danger.
Id. at ¶14, quoting State v. Barnes, 2002-Ohio-68,
94 Ohio St.3d 21, 24. Self-defense
was discussed by this Court in State v. Asp,
2023-Ohio-290 (5th Dist.). Although the Asp
case addressed the issue of self-defense in the context of jury instructions, it is
nonetheless instructive:
Upon review of the record before us, we find that Appellant herein
was not entitled to a self-defense instruction. Here, Appellant did not take
the stand to assert self-defense or provide any evidence of self-defense at
trial. While a defendant does not need to testify to be entitled to a self-
defense instruction, there must be evidence, however, to support the
instruction. State v. McDade, 113 Ohio App. 397, 404,
178 N.E.2d 824
(1959) (“The evidence of self-defense may come wholly from the state....”).
The only statements by Appellant were made during closing
arguments, which does not constitute evidence. It is well established that
closing arguments are not evidence and that statements made during
opening statements and closing arguments are not evidence. See State v.
Frazier, 73 Ohio St.3d 323, 338,
652 N.E.2d 1000 (1995); Nagel v. Nagel,
9th Dist. Lorain No. 09CA009704, 2010-Ohio-3942,
2010 WL 3294299, ¶
16; Ernsberger v. Ernsberger, 8th Dist. Cuyahoga No. 100675, 2014-Ohio-
4470, 2014 WL 5088970, ¶ 35. The court instructed the jury to that effect.
(T. at 588).
Appellant did not present any testimony as to why he was not at fault
in creating the situation, why he reasonably believed he needed to use force
to defend himself, or that the force used was reasonable. We therefore
conclude that Appellant did not meet his initial burden, and the trial court
should have refused to instruct the jury on self-defense.
Id. at ¶¶ 58-60.
{¶14} In the case sub judice, the appellant had the opportunity to cross examine
the appellee’s witnesses in an effort to establish that he was not at fault in creating the
situation “giving rise to the affray,” despite the fact that the “affray” appears to have been
instigated by his use of drugs in D.W.’s home in direct contradiction of her conditions, and
his refusal to return her cell phone upon request; that he believed he was in imminent
danger of bodily harm; and, that he could not avoid the danger. Further, while not required
to take the stand to prove these elements, the appellant could have done so. However,
doing so would have opened him up to cross-examination and allowed the jury to hear
evidence of his criminal history. Trial counsel’s decision to not pursue the defense of self-
defense under these facts does not fall below an objective standard of reasonableness.
These are strategic assessments, and cannot provide the basis for reversal, particularly
without a showing of prejudice. As set forth in Strickland, supra, “[r]epresentation is an
art, and an act or omission that is unprofessional in one case may be sound or even
brilliant in another.”
Id. at 693.
{¶15} The appellant cannot overcome the first prong of the Strickland test, let
alone show prejudice. As such, we find his first assignment of error to be without merit.
ASSIGNMENT OF ERROR NO. II
{¶16} The appellant argues in his second assignment of error that the trial court
erred in failing to merge the Felonious Assault and Domestic Violence charges for
purposes of sentencing. We disagree.
Standard Of Review
{¶17} The appellant submits that the issue of merger of the Felonious Assault and
Domestic Violence charges was preserved for appellate review because the trial court
considered the merger of his Robbery and Aggravated Robbery convictions for purposes
of sentencing. We disagree. The appellant did not preserve for appeal the court’s failure
to merge the Felonious Assault and Domestic Violence charges for purposes of
sentencing, particularly in light of the fact that the issue of merger was discussed during
the sentencing hearing, and merger of the Felonious Assault and Domestic Violence
charges was not raised by either party. As stated by the Ohio Supreme Court in State v.
Rogers, 2015-Ohio-2459:
. . . “It is a well-established rule that ‘ “an appellate court will not
consider any error which counsel for a party complaining of the trial court's
judgment could have called but did not call to the trial court's attention at a
time when such error could have been avoided or corrected by the trial
court.” ’ ” Id. at ¶ 15, quoting State v. Awan, 22 Ohio St.3d 120, 122,
489
N.E.2d 277 (1986), quoting State v. Childs,
14 Ohio St.2d 56,
236 N.E.2d
545 (1968), paragraph three of the syllabus. Thus, by failing to seek the
merger of his convictions as allied offenses of similar import in the trial court,
Rogers forfeited his allied offenses claim for appellate review. Id.
Id. at ¶21. We therefore review the appellant’s second assignment of error for plain error.
Analysis
{¶18} The Rogers Court addressed the issue of plain error in the context of
merger, and stated:
Crim.R. 52(B) affords appellate courts discretion to correct “[p]lain
errors or defects affecting substantial rights” notwithstanding the accused's
failure to meet his obligation to bring those errors to the attention of the trial
court. However, the accused bears the burden of proof to demonstrate plain
error on the record, Quarterman at ¶ 16, and must show “an error, i.e., a
deviation from a legal rule” that constitutes “an ‘obvious' defect in the trial
proceedings,” State v. Barnes, 94 Ohio St.3d 21, 27,
759 N.E.2d 1240
(2002). However, even if the error is obvious, it must have affected
substantial rights, and “[w]e have interpreted this aspect of the rule to mean
that the trial court's error must have affected the outcome of the trial.” Id.
The accused is therefore required to demonstrate a reasonable probability
that the error resulted in prejudice—the same deferential standard for
reviewing ineffective assistance of counsel claims. United States v.
Dominguez Benitez, 542 U.S. 74, 81–83,
124 S.Ct. 2333,
159 L.Ed.2d 157
(2004) (construing Fed.R.Crim.P. 52(b), the federal analog to Crim.R.
52(B), and also noting that the burden of proving entitlement to relief for
plain error “should not be too easy”).
But even if an accused shows that the trial court committed plain
error affecting the outcome of the proceeding, an appellate court is not
required to correct it; we have “admonish[ed] courts to notice plain error
‘with the utmost caution, under exceptional circumstances and only to
prevent a manifest miscarriage of justice.’ ” (Emphasis added.) Barnes at
27, 759 N.E.2d 1240, quoting State v. Long,
53 Ohio St.2d 91,
372 N.E.2d
804 (1978), paragraph three of the syllabus.
Id. at ¶¶ 22-23.
{¶19} We find that the appellant has failed to satisfy his burden of demonstrating
that the trial court engaged in a deviation from a legal rule that constitutes an obvious
defect in the trial proceedings. Therefore, he has failed to establish plain error, and his
second assignment of error is without merit.
{¶20} R.C. 2941.25 protects a criminal defendant's rights under the Double
Jeopardy Clauses of the United States and Ohio Constitutions by prohibiting convictions
of allied offenses of similar import:
(A) Where 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.
(B) Where the defendant's conduct constitutes two or more
offenses of dissimilar import, or where his conduct results in two or more
offenses of the same or similar kind committed separately or with a separate
animus as to each, the indictment or information may contain counts for all
such offenses, and the defendant may be convicted of all of them.
The application of R.C. 2941.25, and whether merger is required for purposes of
sentencing, requires a review of the subjective facts of the case in addition to the elements
of the offenses charged. State v. Hughes, 2016-Ohio-880, ¶ 22 (5th Dist.). The Hughes
Court went on to state:
. . . In a plurality opinion, the Ohio Supreme Court modified the test
for determining whether offenses are allied offenses of similar import. State
v. Johnson, 128 Ohio St.3d 153,
2010-Ohio-6314,
942 N.E.2d 1061. The
Court directed us to look at the elements of the offenses in question and
determine whether or not it is possible to commit one offense and commit
the other with the same conduct. Id. at ¶ 48. If the answer to such question
is in the affirmative, the court must then determine whether or not the
offenses were committed by the same conduct. Id. at ¶ 49. If the answer to
the above two questions is yes, then the offenses are allied offenses of
similar import and will be merged. Id. at ¶ 50. If, however, the court
determines that commission of one offense will never result in the
commission of the other, or if there is a separate animus for each offense,
then the offenses will not merge. Id. at ¶ 51.
Johnson's rationale has recently been described by the Court as
“incomplete.” State v. Earley, 2015-Ohio-4615,
49 N.E.3d 266, ¶ 11. The
Court has recently spoken again on merger issues and instructs us to ask
three questions when a defendant's conduct supports multiple offenses: (1)
were the offenses dissimilar in import or significance? (2) were they
committed separately? and (3) were they committed with separate animus
or motivation? State v. Ruff, 143 Ohio St.3d 114,
2015-Ohio-995,
34 N.E.3d
892, ¶ 31. An affirmative answer to any of the above will permit separate
convictions. Id. The conduct, the animus, and the import must all be
considered. Id.
Id. at ¶22-23.
{¶21} The appellant was convicted of Felonious Assault in violation of R.C.
2903.11(A)(1), and Domestic Violence in violation of R.C. 2919.25(A). R.C. 2903.11(A)(1)
defines Felonious Assault as knowingly causing serious physical harm to another. R.C.
2919.25(A) defines Domestic Violence as knowingly causing or attempting to cause
physical harm to a family or household member.
{¶22} Felonious Assault requires causing serious physical harm to another, while
Domestic Violence requires causing physical harm to a family member. There is no
dispute that the appellant and D.W. were family members. In addition, evidence was
presented during trial that the altercation between the appellant and D.W. consisted of
more than one physical encounter. Initially, the appellant got up from his bed and came
at D.W., and D.W. became afraid for her physical safety. The appellant exited his
bedroom and grabbed D.W., slammed her against the stove, and started choking her.
D.W. told the appellant to get off her, and he released her. After releasing D.W. and
stepping back, the appellant moved towards the kitchen table and hit D.W. “into the
microwave stand,” causing her to land on the tile floor on her elbow and arm, resulting in
injury. Even the appellant acknowledges this break in the altercation in his Brief: “The
record shows that there was one assault, albeit with a break in between.” (Emphasis
added.)
{¶23} The distinction between the Felonious Assault charge and the Domestic
Violence charge was addressed by the appellee both during the presentation of evidence,
and in closing arguments as follows:
And so, you can base your felonious assault conviction - - there are
alternatives in the manner in which you can find somebody guilty of
felonious assault, so the Judge will read to you several of those manners.
So, for example, in addition to having this protracted injury on her
wrist, the swelling, the acute pain, for which she went to get medical
treatment that day, she also subsequently has follow-up appointments with
the orthopedic surgeon. And she described potentially surgery being
necessary if her wrist doesn’t, I guess, fix itself or heal properly.
Also, she reported - - and use your own memories - - going in and
out of it as being unconscious. Now, again, there’s nobody there. The only
person that was there is [D.W.]. So you have to rely on her memory of her
testimony about what happened to determine whether or not that serious
physical harm has been established.
But domestic violence does not require serious physical harm. It just
requires any physical harm or threat. So, felonious assault would involve
the finding of some serious physical harm. And that could be her
unconsciousness. That could be her inarticulable pain that continues to
linger on. That could be her broken bone, as she reported it, or her ongoing,
unresolved wrist issues, as you witnessed here in court with her wearing a
splint and protracted injury not yet healed.
{¶24} Although not evidence, the appellee’s closing arguments clarified the
distinction between the serious physical harm required for Felonious Assault, and the
physical harm required for Domestic Violence. The jury was then able to apply the
definitions of those terms provided in the trial court’s jury instructions to the evidence
presented during trial.
{¶25} The trial court’s instructions to the jury included an instruction on Felonious
Assault that defined serious physical harm as “A, any mental illness or condition of such
gravity as would normally require hospitalization or prolonged psychiatric treatment; B,
any physical harm that carries a substantial risk of death; C, any physical harm that
involves some permanent capacity, whether partial or total, or that involves some
temporary substantial incapacity; D, any physical harm that involves some permanent
disfigurement or that involves some temporary serious disfigurement; E, any physical
harm that involves acute pain of such duration as to result in the substantial suffering or
that involves any degree of prolonged or intractable pain.”
{¶26} The trial court also gave an instruction on Domestic Violence, stating that
“[b]efore you can find the [appellant] guilty [of Domestic Violence] you must find beyond
a reasonable doubt that on or about the 4th day of October 2024, and in Muskingum
County, Ohio, [the appellant] knowingly caused or attempted to cause physical harm to
[D.W.], a family or household member, in violation of Ohio Revised Code, Title 29, Section
2919.25(A), and against the peace and dignity of the State of Ohio.” The court noted that
it had previously defined physical harm, having previously defined physical harm as “any
injury, illness, or other physiological impairment, regardless of its gravity or duration.”
{¶27} It was possible, and reasonable, for the jury to find that the appellant's
actions of getting up from his bed and coming at the victim, causing her to be afraid for
her physical safety, exiting his bedroom and grabbing the victim, slamming her against
the stove and choking her, releasing her and stepping away, but then coming at her again,
hitting her and knocking her “into the microwave stand”, causing her to fall to the tile floor
where she landed on her elbow and arm, resulted in both the serious physical harm
required for Felonious Assault, and the physical harm required for Domestic Violence.
{¶28} In addition, because the trial court ordered that the sentences on each count
be served concurrently, any purported failure to merge Felonious Assault and Domestic
Violence for sentencing purposes did not result in a longer prison term, and as such did
not result in a manifest miscarriage of justice.
{¶29} We therefore find no plain error in the trial court’s failure to merge the
offenses of Felonious Assault and Domestic Violence, and the appellant’s second
assignment of error is without merit.
CONCLUSION
{¶30} Based upon the foregoing, we overrule the appellant’s assignments of error
numbers one and two, and affirm the judgment of the Muskingum County Court of
Common Pleas.
{¶31} Costs to Appellant.
By: Baldwin, P.J.
Popham, J. and
Gormley, J. concur.
