State v. Klose

[Cite as State v. Klose, 2010-Ohio-5674.]

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

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 5-10-12

v.

RONALD J. KLOSE, OPINION

DEFENDANT-APPELLANT.

Appeal from Hancock County Common Pleas Court
Trial Court No. 2009 CR 45

Judgment Affirmed

Date of Decision: November 22, 2010

APPEARANCES:

Scott T. Coon for Appellant

Drew A. Wortman for Appellee
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WILLAMOWSKI, P.J.

{¶1} Defendant-appellant, Ronald J. Klose, appeals the judgment of the

Hancock County Common Pleas Court, finding him guilty of eleven counts of

unlawful sexual conduct with a minor and sentencing him to an aggregate term of

thirteen years in prison. On appeal, Klose contends that the trial court erred in

denying his motion to suppress his statements, erred in denying his motion to

suppress the evidence found in his vehicle, and erred in sentencing him to a term

of thirteen years in prison. For the reasons set forth herein, we affirm the

judgment of the trial court.

{¶2} On December 15, 2008, Deputy Rodney Griffin of the Hancock

County Sheriff’s Office was on routine patrol in Marion Township in the Deer

Landing sub-division at approximately 7:30 p.m. when he spotted a vehicle parked

off the roadway on an unlit, dead end street. Dep. Griffin was patrolling the area

because it was a newer housing development and Marion Township had been

experiencing a number of break-ins and thefts from new homes that were under

construction. Dep. Griffin drove towards the vehicle and stopped his patrol car

approximately two car lengths in front of the vehicle and shined his spotlight on

the darkened vehicle. He observed Klose in the driver’s seat. Dep. Griffin then

noticed Klose begin moving and bending over as if to pull something up. He also

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noticed a second white male located in the back seat, and he saw this person reach

over the front passenger seat and pull a pair of pants into the back.

{¶3} Dep. Griffin exited his patrol car so that he could approach the

vehicle. At this point, Klose started the vehicle and began to drive away. Dep.

Griffin waved his arms and flashlight, signaling Klose to stop, and Klose

complied. Klose then rolled down his window, and Dep. Griffin asked him for

identification. Dep. Griffin noticed several pornographic magazines below

Klose’s feet on the floorboard. Klose appeared nervous, was shaking, and was

breathing heavily. The belt on his pants was also unfastened. Upon looking at the

passenger, Dep. Griffin thought he was a juvenile. In addition, Dep. Griffin

noticed that the passenger was sitting with his arms crossed over his knees, bent

over, and with his pants only pulled up to his knees.

{¶4} Both Klose and his passenger produced identification. The

passenger turned out to be Klose’s fourteen-year-old nephew. Dep. Griffin had

the nephew exit the vehicle, whereupon he noticed that the nephew was not

wearing any shoes. The nephew pulled his pants up, and Dep. Griffin spoke to

him inside of the patrol car while Klose was told to remain in his own vehicle.

Once inside the patrol car, the nephew stated that he did not want to get Klose into

trouble and revealed that Klose had been performing fellatio on him inside of the

vehicle prior to the deputy arriving.

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{¶5} Dep. Griffin called for an additional officer and also requested that

Detective Thomas Blunk1 and Children’s Services be contacted due to the age of

the nephew and what he told Dep. Griffin. A back-up officer arrived, and Klose

was asked to step out of his vehicle and was informed that he was going to be

taken to the sheriff’s office for further investigation. Klose was then patted down

for weapons, handcuffed, and placed in Dep. Griffin’s vehicle.

{¶6} The deputies conducted an inventory of the contents of Klose’s

vehicle because it was being impounded. Inside the vehicle, the deputies found a

number of pornographic magazines under the floor mat on the driver’s side

floorboard, although these magazines had been on top of the floor mat when Dep.

Griffin first noticed them. After the inventory, Klose and his nephew were taken

to the sheriff’s office. The nephew was then taken to the Center for Safe and

Healthy Children in Findlay, Ohio, where he was interviewed by Det. Blunk.

{¶7} After interviewing the child, Det. Blunk and Dep. Griffin returned to

the sheriff’s office to interview Klose. Prior to questioning Klose about his

conduct with his nephew, Det. Blunk provided Klose with a Miranda rights form

and asked him what was the highest grade in school that he had completed. Klose

stated that he completed 12th grade. Det. Blunk then had Klose read the form

aloud. Klose read the form as requested and stated that he understood what he had

1
Det. Blunk testified that he holds the title of both detective and sergeant and that either characterization of
him was appropriate. For purposes of this opinion, we elect to refer to him as Det. Blunk.

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read. Det. Blunk further asked Klose if he understood that he had the right to an

attorney and that he did not have to talk to Det. Blunk. Klose indicated that he

understood, he had no questions, and agreed to speak with Det. Blunk. He then

signed the form and spoke with Det. Blunk.

{¶8} During his interview with Det. Blunk, Klose stated that he picked his

nephew up after school, had dinner with him, drove around, and then parked in the

Deer Landing sub-division. He further admitted that he brought the magazines for

his nephew to view and that he performed fellatio on his nephew while his nephew

looked at the magazines. He then allowed his nephew to have anal intercourse

with him and once again performed fellatio on his nephew. Klose explained that

he returned to the front seat and was cleaning himself up when Dep. Griffin

arrived. Klose also stated that he had engaged in this type of activity with his

nephew on a weekly basis beginning in October of that year but that they had

engaged in similar activity on a sporadic basis since June of 2008.

{¶9} At the conclusion of the interview, Klose provided a written

statement that included many of the details he provided to Det. Blunk. Det. Blunk

asked him a few more questions, which he answered, and the interview was

concluded.

{¶10} On February 24, 2009, Klose was indicted on eleven counts of

unlawful sexual conduct with a minor in violation of R.C. 2907.04(A), each a

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felony of the third degree. Klose pled not guilty to each count. Thereafter, Klose

filed a motion to suppress all evidence obtained as a result of the stop of his

vehicle and to suppress his statements to law enforcement because he was not

competent to waive his Miranda rights.

{¶11} Klose was evaluated by Dr. Jolie Brams, a clinical psychologist, at

the request of Klose’s attorney in order to determine his ability to voluntarily and

knowingly waive his Miranda rights. Dr. Brams issued a report, opining that

Klose “did not possess the developmental or cognitive abilities to knowingly and

voluntarily waive his right to counsel.” (Supp. Hrg., 10/8/09, Def. Exh. A.) In

response, the State requested that Klose be given an evaluation by the Court

Diagnostic and Treatment Center (“CDTC”) in Toledo, Ohio. The trial court

granted this request, and Dr. Thomas Sherman, a psychiatrist and medical director

of the CDTC, evaluated Klose. Dr. Sherman issued a report of this evaluation,

opining that Klose was competent to waive his Miranda rights at the time he was

questioned by Det. Blunk.

{¶12} On October 8, 2009, a suppression hearing was held. Both Dr.

Brams and Dr. Sherman testified and presented their respective opinions. In

addition, Dep. Griffin and Det. Blunk testified about what transpired on December

15, 2008. At the conclusion of the hearing, the trial court took the matter under

advisement, and on October 27, 2009, overruled the motion to suppress.

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{¶13} Klose withdrew his previously tendered pleas of not guilty and

entered pleas of no contest on all eleven counts on February 1, 2009. The trial

court found him guilty of each count and ordered a pre-sentence investigation,

including a pre-sentence evaluation by the CDTC. On March 29, 2010, the court

sentenced Klose to four years in prison on each of Counts 1-6, each to run

concurrently to one another; five years in prison on each of Counts 7 and 8, each

to run concurrently to one another but consecutively to Counts 1-6; and four years

in prison on each of Counts 9-11, each to run concurrently to one another but

consecutively to Counts 1-8, for an aggregate term of thirteen years in prison.

{¶14} Klose now appeals the judgment of the trial court, raising three

assignments of error.

First Assignment of Error

The trial court erred in denying Appellant’s motion to suppress
statements made by the appellant at the time of Appellant’s
arrest.

Second Assignment of Error

Trial court erred in denying Appellant’s motion to suppress
evidence illegally seized from his motor vehicle by the Hancock
County Sheriff’s Department at the time of his arrest, and
statements made after the appellant’s arrest to the Hancock
County Sheriff’s Office.

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Third Assignment of Error

Trial court erred in sentencing the appellant to a term of
thirteen (13) years in the Ohio Department of Rehabilitation and
Correction.

{¶15} For ease of discussion, we elect to address the assignments of error

out of the order in which they appear.

{¶16} In Klose’s second assignment of error, he maintains that the trial

court erred in denying his motion to suppress the evidence obtained as a result of

the stop of Klose. In support of this position, Klose contends that Dep. Griffin did

not have a reasonable articulable suspicion of criminal activity to justify stopping

him.

{¶17} When reviewing a trial court’s ruling on a motion to suppress, the

Supreme Court of Ohio has determined that:

“Appellate review of a motion to suppress presents a mixed
question of law and fact. When considering a motion to
suppress, the trial court assumes the role of trier of fact and is
therefore in the best position to resolve factual questions and
evaluate the credibility of witnesses. State v. Mills (1992), 62
Ohio St.3d 357, 366, 582 N.E.2d 972. Consequently, an appellate
court must accept the trial court’s findings of fact if they are
supported by competent, credible evidence. State v. Fanning
(1982), 1 Ohio St.3d 19, [20], 1 OBR 57, 437 N.E.2d 583.
Accepting these facts as true, the appellate court must then
independently determine, without deference to the conclusion of
the trial court, whether the facts satisfy the applicable legal
standard. State v. McNamara (1997), 124 Ohio App.3d 706, 707
N.E.2d 539.”

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In re: A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, ¶ 50, quoting

State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.

{¶18} The United States Supreme Court has previously held that “[t]he

Fourth Amendment [of the United States Constitution] provides that ‘the right of

the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated * * *.’ This inestimable

right of personal security belongs as much to the citizen on the streets of our cities

as to the homeowner closeted in his study to dispose of his secret affairs.”

(Emphasis added.) Terry v. Ohio (1968), 392 U.S. 1, 8-9, 88 S.Ct. 1868. Similar

protection exists pursuant to Section 14, Article I of the Ohio Constitution. See

State v. Wilson, 3rd Dist. No. 5-07-47, 2008-Ohio-2742, ¶ 16. When evidence is

obtained as a result of an unlawful search and seizure, it must be suppressed. Id.,

citing Mapp v. Ohio (1961), 367 U.S. 643, 649, 81 S.Ct. 1684.

{¶19} In Terry, the Supreme Court determined that an officer need not

have probable cause to detain and search an individual. Terry, 392 U.S. at 21.

Rather, a police officer may temporarily detain an individual where he has a

reasonable articulable suspicion that the individual is engaging in criminal

activity. State v. Bobo (1988), 37 Ohio St.3d 177, 179, 524 N.E.2d 489, citing

Terry, supra. Reasonable articulable suspicion exists when there are “‘specific and

articulable facts which, taken together with rational inferences from those facts,

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reasonably warrant the intrusion.’” State v. Stephenson, 3rd Dist. No. 14-04-08,

2004-Ohio-5102, ¶ 16, quoting Bobo, 37 Ohio St.3d at 178, 524 N.E.2d 489. In

forming reasonable articulable suspicion, law enforcement officers may “draw on

their own experience and specialized training to make inferences from and

deductions about the cumulative information available to them that ‘might well

elude an untrained person.’” United States v. Arvizu (2002), 534 U.S. 266, 273,

122 S.Ct. 744, quoting United States v. Cortez (1981), 449 U.S. 411, 417-418, 101

S.Ct. 690. Thus, determining whether the officer’s actions were justified depends

upon the totality of the circumstances, which must “be viewed from the eyes of the

reasonable and prudent police officer on the scene who must react to the events as

they unfold.” State v. Andrews (1991), 57 Ohio St.3d 86, 87, 565 N.E.2d 1271

(citations omitted).

{¶20} We believe that the facts support a reasonable articulable suspicion

by Dep. Griffin that Klose was engaged in criminal activity. Dep. Griffin was an

experienced deputy with five and a half years on the Hancock County Sheriff’s

Department and seventeen years in overall law enforcement experience. We must

view the circumstances of the stop through his eyes. He was the “reasonable and

cautious police officer on the scene” who was guided by his own experience and

training. See State v. Freeman (1980), 64 Ohio St.2d 291, 295, 414 N.E.2d 1044.

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{¶21} Dep. Griffin testified that Hancock County had been experiencing a

number of break-ins in homes under construction in newer housing developments.

In fact, he testified that Marion Township, where Deer Landing is located, actually

contracted with the Sheriff’s Department for additional patrols in the township

because of the number of these types of break-ins. He also testified that Deer

Landing was a newer housing development and that he was patrolling it because

of this specific concern. An area’s reputation for criminal activity is an articulable

fact, which is a part of the totality of circumstances surrounding a stop to

investigate suspicious behavior. Bobo, 37 Ohio St.3d at 179, 524 N.E.2d 489.

{¶22} While on patrol in the evening hours of December, he noticed an

isolated, darkened vehicle at the end of an unlit, dead end street where there were

no homes in the immediate vicinity. He then drove towards the vehicle and shined

his spotlight on the vehicle “to see if anybody was in the vehicle or why the

vehicle was there[.]” (Supp. Hrg., 10/8/09, p. 117.) Dep. Griffin saw a man in the

driver’s seat, who started to bend over “and was acting like he was moving back

and forth like he was trying to pull something up[.]” (id. at pp. 117-118.) He also

noticed that the windows were somewhat steamed up and that there was another

person in the back seat. He saw this second person then grab a pair of pants from

the front and pull the pants to the back seat. At this point, he elected to exit his

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patrol car to approach the vehicle but the vehicle began driving away so Dep.

Griffin signaled with his hands and flashlight for the vehicle to stop.

{¶23} This case cannot be resolved on the basis of any one of the facts we

have detailed. However, when taken collectively, those facts indicate that Dep.

Griffin did not violate Klose’s constitutional rights in stopping and investigating

this suspicious activity. As noted by the trial court, “[w]hen added together, this

combined conduct could lead a reasonably prudent person to believe that a break-

in had occurred or was in progress; the parties were engaged in unlawful sexual

activity, or that other potential criminal activity was afoot.” (Journal Entry,

10/27/09, p. 6.)

“The Fourth Amendment does not require a policeman who
lacks the precise level of information necessary for probable
cause to arrest to simply shrug his shoulders and allow a crime
to occur or a criminal to escape. On the contrary, Terry
recognizes that it may be the essence of good police work to
adopt an intermediate response. * * * A brief stop of a suspicious
individual, in order to determine his identity or to maintain the
status quo momentarily while obtaining more information, may
be most reasonable in light of the facts known to the officer at
the time.”

Bobo, 37 Ohio St.3d at 180, 524 N.E.2d 489, quoting Adams v. Williams (1972),

407 U.S. 143, 145-146, 92 S.Ct. 1921. In this case, a brief stop of Klose in order

to maintain the status quo momentarily while obtaining more information was

reasonable, good police work. Furthermore, once Dep. Griffin saw that the rear

seat passenger appeared to be a juvenile whose pants were only pulled up to his

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knees, combined with observing the pornographic magazines beneath the feet of

the adult driver who had been making furtive movements and who attempted to

drive away upon seeing the deputy approach, he was justified in continuing the

stop to ascertain whether a crime had occurred Accordingly, we do not find that

the trial court erred in overruling Klose’s motion to suppress in this regard, and the

second assignment of error is overruled.

{¶24} In his first assignment of error, Klose contends that the trial court

erred in overruling his motion to suppress the statements he made to law

enforcement because he did not knowingly, intelligently, and voluntarily waive his

Miranda rights. In support of his position, Klose asserts that Dr. Brams found that

he lacked the abstract reasoning abilities to affect a knowing, voluntary, and

intelligent waiver of his Miranda rights.

{¶25} The seminal case of Miranda v. Arizona requires that “[a] suspect in

police custody ‘must be warned prior to any questioning that he has the right to

remain silent, that anything he says can be used against him in a court of law, that

he has the right to the presence of an attorney, and that if he cannot afford an

attorney one will be appointed for him prior to any questioning if he so desires.’”

State v. Lather, 110 Ohio St.3d 270, 2006-Ohio-4477, 853 N.E.2d 279, ¶ 6,

quoting Miranda v. Arizona (1966), 384 U.S. 436, 479, 86 S.Ct. 1602. In order for

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a defendant’s waiver of Miranda rights to be valid, the waiver must be knowingly,

intelligently, and voluntarily made. Miranda, 384 U.S. at 444.

{¶26} When a defendant challenges his waiver of these rights, the state

bears the burden of demonstrating, by a preponderance of the evidence, that the

defendant knowingly, intelligently, and voluntarily waived his Miranda rights

based on the totality of the circumstances. State v. Gumm, 73 Ohio St.3d 413,

429, 1995-Ohio-24, 653 N.E.2d 253. “The totality of the circumstances includes

‘the age, mentality and prior criminal experience of the accused; the length,

intensity, and frequency of interrogation; the existence of physical deprivation or

mistreatment; and the existence of threat or inducement.’” State v. Campbell, 90

Ohio St.3d 320, 332, 2000-Ohio-183, 738 N.E.2d 1178, quoting State v. Edwards

(1976), 49 Ohio St.2d 31, 358 N.E.2d 1051, paragraph two of the syllabus.

Absent a showing that the waiver was voluntary, the waiver is invalid and the

defendant’s statements should be suppressed. Miranda, supra.

{¶27} Here, the State conceded at the suppression hearing that Klose was

in custody when Det. Blunk questioned him, and the defense did not assert that

Klose was threatened, mistreated, or physically deprived by the officers. Rather,

the primary issue for the trial court to determine was whether Klose’s mental

capabilities were sufficient to make a knowing, intelligent, and voluntary waiver

of his rights. To that end, Klose and the State presented conflicting evidence.

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{¶28} Dr. Brams testified and her report reflected that Klose, who was

forty-nine years old at the time she evaluated him, was born with hydrocephalus, a

condition where excess fluid builds up in the brain. However, she did not know

the extent of the condition, whether it was treated, or the long term effects on

Klose, but she noted that his face was asymmetrical, which would indicate he

suffered some sort of trauma such as hydrocephalus. She spoke with Klose for

several hours, performed various tests on him, spoke with his wife and brother,

and reviewed some of his school records and the police reports on this case. She

determined that his IQ was 82 and that he was not mentally retarded. Nonetheless,

she also opined that he had an overall age equivalent of eight years, three months

in cognitive abilities. In explaining this, Dr. Brams stated that Klose had learning

disabilities but that he wanted to look intelligent so he used a “cloak of

competence,” which meant that he would often act as if he understood something

even if he did not. She further explained that this was brought on by the

relationship with his father, who often compared him to his older brother and was

very tough on Klose because of his disabilities. Dr. Brams testified that she based

this opinion on her discussions with Klose and his family members because she

could not speak with Klose’s father who was deceased. Thus, she opined that in

waiving his Miranda rights, Klose was simply pretending to understand but did not

truly understand what he was doing.

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{¶29} On cross-examination, Dr. Brams acknowledged that Klose

graduated from Findlay High School. She also provided the school records that

she reviewed, which showed that he received average grades in school, but they

did not indicate if he was in any type of special education classes. Dr. Brams also

provided examples of questions she asked Klose in making her determination that

he was a concrete thinker who did not cognitively function as an adult, but none of

these examples involved issues of Miranda or anything similar.

{¶30} Contrary to the opinion of Dr. Brams, Dr. Sherman found that there

was no indication that Klose was “mentally non-functional” when he waived his

Miranda rights. (Supp. Hrg., 10/8/09, State’s Ex. 2.) Dr. Sherman also opined

that Klose did not suffer from any mental disease or defect that would have

prevented him from understanding his Miranda rights. In reaching this

conclusion, Dr. Sherman testified that he reviewed Dr. Brams’ evaluation, spoke

with Klose for one hour, and reviewed the relevant police reports on this matter.

Dr. Sherman testified that Klose was able to answer his questions in great detail

and on point, told Dr. Sherman that he did not feel that was able to give a

voluntary statement to the officers that night because he was scared, and told Dr.

Sherman that he believed if he spoke with the officers then things would “go

easy.” (Supp. Hrg., 10/8/09, pp. 78-79.)

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{¶31} Dr. Sherman also testified that “cloak of competence” was not a

term of art in forensic psychiatry and that he was unfamiliar with the term. He

further stated that Klose had lived independently for a number of years, was able

to drive, was married for eleven years, and was gainfully employed for a number

of years in places that were not sheltered workshops. In speaking with Klose, Dr.

Sherman noted that he did not have to overly simplify his vocabulary in order for

Klose to understand and that Klose’s thinking was well organized.

{¶32} While speaking with Klose, Dr. Sherman gave him a hypothetical

situation involving the robbery of a gas station. This hypothetical included

strengths and weakness of the case, and Klose was asked what he would do if he

represented the accused. Klose was able to provide a defense strategy, including

how to discredit the prosecution’s evidence, and Dr. Sherman found that he was

able to think in the abstract and that nothing in his answers caused Dr. Sherman to

be concerned about Klose’s ability to understand.

{¶33} Although Dr. Sherman did not examine any of Klose’s medical or

school records and did not speak with his family members, he read Dr. Brams’

evaluation, which included this information. Additionally, Dr. Sherman stated that

he did not feel that he needed to do anything more than what he did in his

evaluation because he saw nothing to indicate that Klose was unable to knowingly,

intelligently, and voluntarily waive his Miranda rights. In fact, Dr. Sherman

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testified that he had evaluated many people for competency over the last thirty

years with the CDTC and that if he had “a hint of doubt” about Klose’s mental

ability to waive his rights, he would have sought additional information. (id. at p.

106.) However, in this case, Dr. Sherman stated “in no uncertain terms” that

Klose was competent to waive his Miranda rights and that “this was not even a

close call.” (id. at p. 102.)

{¶34} In addition to the testimony of both Dr. Brams and Dr. Sherman,

Dep. Griffin and Det. Blunk testified about their interactions with Klose on the

night of his arrest. Both officers testified that Klose read the Miranda rights

waiver form aloud and that Klose did not have any difficulty in reading the form

and that they noticed nothing that would have indicated to them that Klose did not

understand his rights. Det. Blunk also testified that Klose did not appear to be

unable to understand the words that the detective was using or the questions he

was asking or otherwise give any indication that he “wasn’t with it[.]” (id. at. p.

170.) In addition, Det. Blunk stated that Klose communicated very well with him

and although he noticed Klose had some physical deformities, he did not notice

anything that indicated that Klose “had some type of mental disability or * * *

mental disorder.” (id. at. p. 184.) After speaking with Det. Blunk, Klose provided

a written statement regarding his sexual activity with his nephew, which he signed.

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This statement and the Miranda rights waiver form at issue were submitted into

evidence at the hearing. (id. at p. 188, State’s Ex. 4, 5.)

{¶35} Based on this evidence, the trial court found that although Dr.

Brams’ testimony was helpful, the court did not find it sufficiently persuasive to

support a conclusion that Klose did not knowingly and intelligently waive his

Miranda rights. Rather, the court found that Dr. Brams’ impression of Klose was

belied by the fact that Klose was able to have long-term employment, was

married, and was able to operate a motor vehicle. The court also relied upon Dr.

Sherman’s testimony that Klose was “conversant with legal terms and understood

the consequences of certain actions.” (Journal Entry, 10/27/09, p. 9.) Thus, the

court concluded that based upon a totality of the circumstances, the State satisfied

its burden of demonstrating that Klose was “not so impaired so as to be incapable

of understanding and appreciating the legal rights he possessed at the time he was

advised of them by Detective Blunk.” (id.)

{¶36} In light of all of the evidence before it, we find that the trial court’s

decision was supported by an ample amount of competent, credible evidence.

Therefore, we do not find that the trial court erred in concluding that Klose

knowingly, voluntarily, and intelligently waived his Miranda rights and

consequently overruling Klose’s motion to suppress in this regard. The second

assignment of error is, accordingly, overruled.

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{¶37} Klose asserts in his third assignment of error that the trial court erred

in sentencing him to a term of thirteen years in prison. In support of this assertion,

Klose points to the fact that he had no prior criminal history and to the pre-

sentence evaluation performed by the CDTC, which indicated that Klose was a

low risk for recidivism.

{¶38} The standard of review for sentences was set forth in State v. Kalish,

120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. In Kalish, four panel

members noted that R.C. 2953.08(G) requires an appellate court to review a

defendant’s sentence, when challenged, to ascertain whether it is clearly and

convincingly contrary to law.2 Clear and convincing evidence is “[t]he measure or

degree of proof that will produce in the mind of the trier of fact a firm belief or

conviction as to the allegations sought to be established. It is intermediate, being

more than a mere preponderance, but not to the extent of such certainty as required

beyond a reasonable doubt as in criminal cases. It does not mean clear and

unequivocal.” In re Estate of Haynes (1986), 25 Ohio St.3d 101, 103-04, 495

N.E.2d 23.

{¶39} Additionally, if the appeal is based upon the application of the

factors enumerated in R.C. 2929.12, four panel members in Kalish would require a

2
Justices Pfeifer, Lundberg Stratton, Lanzinger, and Judge Willamowski, sitting by assignment, all
reached this conclusion.

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second step in the sentencing review. This step requires determining whether the

trial court abused its discretion in applying these factors, as specifically set forth in

R.C 2929.12.3 An abuse of discretion is more than a mere error; it implies that

the court’s attitude is unreasonable, arbitrary, or unconscionable. Blakemore v.

Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.

{¶40} The substance of Klose’s assignment of error is that the court did not

properly apply the factors set forth in R.C. 2929.12. More specifically, Klose

relies upon the fact that he had no prior criminal conviction and that the evaluation

he underwent to determine his likelihood of recidivism indicated that he was at a

low risk for recidivism. Because Klose’s appeal involves R.C. 2929.12, we must

review his sentences utilizing the two-step process outlined in Kalish.

{¶41} As to the first step, in State v. Foster, the Supreme Court of Ohio

stated, “[t]rial courts [now] have full discretion to impose a prison sentence within

the statutory range and are no longer required to make findings or give their

reasons for imposing maximum, consecutive, or more than the minimum

sentences.” State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470,

paragraph seven of the syllabus. Although the trial court is given full discretion in

sentencing pursuant to Foster, the trial court must consider the overriding

3
Justices O’Connor, Moyer, O'Donnell, and Judge Willamowski, sitting by assignment, concurred in this
position, although the first three would use both standards of review in all cases.

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purposes of felony sentencing, which are to protect the public from future crimes

by the offender and to punish the offender. R.C. 2929.11(A); State v. Scott, 3rd

Dist. No. 6-07-17, 2008-Ohio-86, ¶ 49, citing State v. Foust, 3rd Dist. No. 3-07-11,

2007-Ohio-5767, ¶ 27. Additionally, “[a] sentence imposed for a felony shall be

reasonably calculated to achieve the two overriding purposes of felony sentencing

* * * commensurate with and not demeaning to the seriousness of the offender’s

conduct and its impact upon the victim, and consistent with sentences imposed for

similar crimes committed by similar offenders.” R.C. 2929.11(B).

{¶42} Here, each of the eleven counts was punishable by one to five years

in prison. See R.C. 2907.04(A), 2929.14(A)(3). As previously noted, Klose was

sentenced to four years on each of Counts 1-6, each to run concurrently to one

another; five years on each of Counts 7 and 8, each to run concurrently to one

another but consecutively to Counts 1-6; and four years on each of Counts 9-11,

each to run concurrently to one another but consecutively to Counts 1-8, for an

aggregate term of thirteen years in prison. Each of these sentences was within the

permissible statutory range. Further, a review of the record reveals that the trial

court considered the purposes and principles of sentencing, as well as the R.C.

2929.12 factors. Thus, we do not find that this sentence was clearly and

convincingly contrary to law.

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{¶43} As to the second step, the trial court outlined the serious nature of

the offenses, including the relationship between Klose and his victim and how he

groomed his nephew for these offenses by providing him with pornographic

magazines, utilizing his inquisitiveness and other aspects of his age and maturity

level, and by then driving him to desolate areas of the county to engage in sexual

activity. The court noted that this was not “a lark”; it was planned, which

indicated that Klose was a pedophile, a conclusion also reached in the CDTC

evaluation. (Sent. Hrg., 3/29/10, p. 19; Joint Ex. A.)

{¶44} The court also specifically addressed the likelihood of recidivism. In

so doing, the trial court found that, despite the risk assessment contained in the

CDTC evaluation, there was a potential for recidivism because Klose, a fifty-year-

old pedophile, chose to ignore the boundaries of the law and society to fulfill his

“unnatural and unlawful instincts” and engage in “a long standing pattern of

unlawful conduct with a member of his own family.” (id. at p. 21.) The trial court

further stated that it was mindful of the possibility of judicial release if it gave a

sentence of less than ten years. However, the trial court noted that this was not a

case of “one simple offense” but rather it involved eleven separate counts of

serious conduct occurring over a period of time and that the sentence needed to

adequately punish Klose for his conduct, protect the public, and be proportionate

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to the harm caused. (id. at pp. 23-24, 26.) The court then proceeded to sentence

Klose as previously detailed.

{¶45} In light of the evidence before the court, we do not find that the trial

court was arbitrary, unreasonable, or capricious in sentencing Klose on each count

in the manner that it chose. A risk assessment for recidivism is but one factor to

consider in determining an appropriate sentence. Here, the trial court clearly

considered the purposes and principles of sentencing, the seriousness of the

conduct, and Klose’s likelihood of recidivism, and made a well reasoned decision

based upon the evidence before it. Therefore, the third assignment of error is

overruled.

{¶46} Having found no error prejudicial to Klose, the judgment of the

Court of Common Pleas of Hancock County is affirmed.

Judgment Affirmed

ROGERS and PRESTON, J.J., concur in Judgment Only.

/jlr

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