State v. Culbreth, 2019 Ohio 138

In Oct. 2017 Culbreth (defendant) drove to his ex-girlfriend Kathryn Parry’s home, threatened her and her husband by text and phone, and was seen at the residence; a masonry hammer was found in his car.
Kathryn fled the house; police found the front door open and arrested Culbreth after he returned.
A Highland County grand jury indicted Culbreth for second-degree burglary and fourth-degree menacing; the menacing charge was dismissed on Crim.R. 29 at the close of the State’s case.
A jury convicted Culbreth of burglary; the trial court ordered a presentence investigation and sentenced him to five years’ imprisonment with three years of mandatory post-release control.
At sentencing the court relied on factors including lack of remorse, threats and prior history of violent/temper issues, and referenced a dismissed domestic-violence charge together with prior convictions in the presentence report.
On appeal Culbreth argued (1) the trial court improperly considered a dismissed domestic-violence charge at sentencing and (2) the five-year term was not supported by the record.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Culbreth)	Held
Whether the trial court improperly considered a dismissed domestic-violence charge at sentencing	The court may consider the dismissed charge as part of broader evidence of temperament and history; the court explicitly noted the charge was dismissed and not a conviction.	Trial court relied on a dismissed charge to justify an enhanced sentence.	Court: No error — the court did not credit the dismissed charge as a conviction and may consider dismissed/uncharged conduct at sentencing; presentence report and trial evidence supported the court’s view.
Whether the five-year prison sentence is unsupported or contrary to law	The sentence is within statutory range and supported by record: threats, history of violence, lack of remorse, and home-invasion context justify more than minimum.	Prior convictions were remote and alcohol-related, reducing recidivism risk; thus a lesser sentence/community control was appropriate.	Court: No reversible error — sentence within statutory range; defendant failed to show by clear and convincing evidence that the sentence is unsupported or contrary to law.

State v. Marcum, 146 Ohio St.3d 516, 59 N.E.3d 1231 (Ohio 2016) (standard of appellate review for felony sentences under R.C. 2953.08(G)(2))
State ex rel. Husted v. Brunner, 123 Ohio St.3d 288, 915 N.E.2d 1215 (Ohio 2009) (definition of clear and convincing evidence)