State v. Stout

[Cite as State v. Stout , 2014-Ohio-1094.]
STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO, )
) CASE NO. 13 MA 30
PLAINTIFF-APPELLEE, )
)
- VS - ) OPINION
)
MILBUR STOUT, )
)
DEFENDANT-APPELLANT. )

CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas
Court, Case No. 11 CR 469.

JUDGMENT: Conviction Affirmed. Sentence
Reversed and Remanded
for Resentencing.

APPEARANCES:
For Plaintiff-Appellee: Attorney Paul J. Gains
Prosecuting Attorney
Attorney Ralph M. Rivera
Assistant Prosecuting Attorney
21 W. Boardman St., 6th Floor
Youngstown, OH 44503

For Defendant-Appellant: Attorney Scott Cochran
19 E. Front Street, Suite 1
Youngstown, OH 44503

JUDGES:
Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Joseph J. Vukovich

Dated: March 19, 2014
[Cite as State v. Stout , 2014-Ohio-1094.]
DeGenaro, P.J.
{¶1} Defendant-Appellant, Milbur Stout, appeals the March 8, 2013 judgment of
the Mahoning County Court of Common Pleas convicting him of two counts of pandering
sexually oriented matter involving a minor and two counts of illegal use of a minor in
nudity oriented material or performance, and sentencing him accordingly, following an
Alford plea. On appeal, Stout raises several sentencing issues. He claims that he
qualified for mandatory community control pursuant to R.C. 2929.13(B)(1)(a) and that the
trial court's finding that the offenses caused physical harm to the victims was erroneous.
Stout also asserts that the trial court erroneously sentenced him to consecutive sentences
without making the findings required by House Bill 86, which is codified as R.C.
2929.14(C)(4).
{¶2} First, R.C. 2929.14(C)(4) and R.C. 2929.13(B)(1)(a), both as amended by
H.B. 86, apply to defendants who committed the offenses before the effective date of the
amendments but were sentenced after; thus they also apply to Stout. Second, the trial
court's physical harm finding was erroneous, and therefore the trial court also erred by
imposing a prison sentence. In light of this conclusion, Stout's assignment of error
concerning consecutive sentencing is moot. Accordingly, the judgment of the trial court
with regard to Stout's sentence is reversed and the matter remanded for resentencing.
Facts and Procedural History
{¶3} On May 5, 2011, a grand jury indicted Stout on two counts of pandering
sexually oriented matter involving a minor, R.C. 2907.322(A)(5)(C), fourth-degree
felonies, and four counts of illegal use of a minor in nudity oriented material or
performance, R.C. 2907.323(A)(3)(B), fifth-degree felonies. Stout was charged after
photographs were found in Stout's former apartment and business property by the new
owners after they purchased the property at a sheriff's sale. Stout was arraigned, pled
not guilty, retained counsel and executed a speedy-trial waiver.
{¶4} After lengthy plea negotiations broke down, the State filed a superseding
indictment on October 18, 2012, adding 40 additional counts: 10 counts of pandering
obscenity involving a minor, R.C. 2907.321(A)(1)(C), second-degree felonies; 10 counts
of pandering sexually oriented matter involving a minor, R.C. 2907.322(A)(1)(C), second-
 -2-

degree felonies; 10 counts of pandering obscenity involving a minor, R.C.
2907.321(A)(1)(C), fourth-degree felonies; and 10 counts of pandering sexually oriented
matter involving a minor, R.C. 2907.322(A)(5)(C), fourth-degree felonies. All counts from
the original indictment remained, making a total of 46 counts. The new charges stemmed
from images found on computer hard drives and disks that belonged to Stout. Stout
waived arraignment on the new charges and entered a written plea of not guilty. On
November 28, 2012, Stout filed a motion to dismiss, arguing that all the charges were
based on events and activities outside the six-year statute of limitations for felonies.
{¶5} Before the trial court could rule on the motion to dismiss, on January 30,
2013, Stout entered an Alford Plea to two counts of pandering sexually oriented matter
involving a minor, (R.C. 2907.322(A)(5)(C)), fourth-degree felonies, and two counts of
illegal use of a minor in nudity oriented material or performance, R.C. 2907.323(A)(3)(B),
fifth-degree felonies (Counts One through Four of the superseding indictment). See
generally North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970);
State v. Griggs, 103 Ohio St.3d 85, 814 N.E.2d 51, 2004-Ohio-4415, ¶13. The State
agreed to dismiss the remaining 42 counts and recommend a 5 year prison sentence
(maximum, consecutive on each count.) The trial court ordered a presentence
investigation report be prepared in advance of sentencing.
{¶6} On March 6, 2013, a sentencing hearing was held. Both the State and
Stout stipulated that "there is no presumption for or against the Defendant going to
prison, that this is something basically the Court will consider on the facts and the
circumstances presented in this case." The State argued for a five-year prison sentence,
instead of community control, contending that the physical harm exception in R.C.
2929.13(B)(1)(b)(ii) applied because "there is physical harm when child pornography is
viewed." The State also argued that Stout's sex offender risk assessment lacked
reliability in that some of Stout's responses were found to be invalid. The State also
contended that Stout's clinical profile depicted him as someone who was narcissistic,
immature, self-indulgent and tended to view himself as a victim. Stout argued that his
mere possession of the images did not cause "physical harm" to the children depicted
 -3-

and thus R.C. 2929.13(B)(1)(b)(ii) did not apply to him. Stout noted that his only past
convictions were OVI's and that his sex offender risk assessment found he was an
appropriate candidate for community control.
{¶7} Stout also made a statement in mitigation of punishment. Stout explained
that he was the victim of sexual abuse as a young child, estimating that he was raped
between 50 and 100 times and was subjected to other acts of sexual violence. He also
explained that his father physically abused him from the time that he was 7 or 8 years old
until the time that he was 15. He said that in late 1990's he began to collect images of
child pornography out of anger over the sexual abuse he suffered as a child. He claimed
he planned to turn over the images to the authorities; however, he later decided to stop
collecting the pictures and abandoned his plan. Stout argued that his attempts to shred
the pictures and throw them away were attempts to dispossess the material. He said he
deleted the files on his computer and did not know that they could be recovered from the
unallocated disk space on his hard drive.
{¶8} After considering the information presented at the hearing, the sex offender
risk assessment, the letters of support written by Stout's family, the PSI and after
reviewing the images themselves, the trial court sentenced Stout to 18 months on Counts
One, 18 months on Count Two, 12 Months on Count Three, and 12 months on Count
Four. The trial court ran Counts One and Two concurrent with one another, Counts
Three and Four concurrent with one another, but Counts Three and One consecutive to
one another, for a total of 30 months in prison. The trial court imposed a mandatory term
of 5 years of post-release control. Stout was also fined $500 and classified a Tier II sex
offender.
Applicability of H.B. 86
{¶9} For clarity of analysis, we must first determine if R.C. 2929.13(B) and R.C.
2929.14(C), as amended by H.B. 86, applies to Stout, because he challenges the trial's
decision to impose consecutive prison terms instead of mandatory community control.
Stout committed the crimes at issue on March 30, 2011, before the effective date of H.B.
86, but was sentenced on March 22, 2013, well after the effective date. The mandatory
 -4-

community control provisions in R.C. 2929.13(B) and the additional requirements of R.C.
2929.14(C)(4) to be considered when a trial court imposes consecutive sentences, were
enacted as part of House Bill 86.
{¶10} Section 4 of H.B. 86 provides (emphasis added):

The amendments to sections 926.99, 1333.99, 1707.99, 1716.99, 2909.03,
2909.05, 2909.11, 2913.02, 2913.03, 2913.04, 2913.11, 2913.21, 2913.31,
2913.32, 2913.34, 2913.40, 2913.401, 2913.42, 2913.421, 2913.43,
2913.45, 2913.46, 2913.47, 2913.48, 2913.49, 2913.51, 2913.61, 2915.05,
2917.21, 2917.31, 2917.32, 2921.13, 2921.41, 2923.31, and 2981.07,
division (B) of section 2929.13, and division (A) of section 2929.14 of the
Revised Code that are made in this act apply to a person who commits an
offense specified or penalized under those sections on or after the effective
date of this section and to a person to whom division (B) of section 1.58 of
the Revised Code makes the amendments applicable.

{¶11} R.C. 1.58(B) provides: "If the penalty, forfeiture, or punishment for any
offense is reduced by a reenactment or amendment of a statute, the penalty, forfeiture, or
punishment, if not already imposed, shall be imposed according to the statute as
amended." Thus, in order for the amendments R.C. 2929.13(B) and R.C. 2929.14(C) to
apply to Stout, H.B. 86 would have had to reduce the applicable penalty, forfeiture or
punishment.
{¶12} Turning first to the changes in R.C. 2929.13(B) and imposing community
control versus a prison term, there are no cases on point discussing this issue; however,
a very recent Ohio Supreme Court case is somewhat instructive, as it involves another
statute affected by H.B. 86, R.C. 2913.02, which reduced the degree, and therefore the
penalty, for certain theft offenses. State v. Taylor, Slip Opinion No. 2014-Ohio-460. In
Taylor, the Ohio Supreme Court held that a defendant who committed the crime before
the effective date of H.B. 86, but was sentenced after, was entitled to receive the reduced
 -5-

classification and penalty for the theft offense as provided by H.B. 86's amendments to
R.C. 2913.02, through the operation of R.C. 1.58. Id. at ¶17-21.
{¶13} The present case involves R.C. 2929.13(B), which mandates community
control for fourth and fifth degree felons in some situations. This is somewhat analogous
to the situation in Taylor. Mandating community control for fourth and fifth degree felons
in some situations constitutes a "reduction in penalty or punishment" sufficient to trigger
the application of R.C. 1.58(B). Moreover, in State v. Esmail, 7th Dist. No. 11 CO 35,
2013-Ohio-2165, albeit without discussion, this court applied H.B. 86's amendments to
R.C. 2929.13(B) to a defendant who committed the crimes before September 30, 2011,
but was sentenced after. Id. at ¶3-5, 32-37.
{¶14} Turning next to R.C. 2929.14(C)(4), as amended by H.B. 86, in a string of
recent cases, this court applied the H.B. 86 consecutive sentencing provisions where the
defendant committed the crimes before the effective date of the statute but was
sentenced after. See State v. Power, 7th Dist. No. 12 CO 14, 2013-Ohio-4254, ¶2-4, 33-
77; State v. Esmail, 7th Dist. No. 11 CO 35, 2013-Ohio-2165, ¶3-8, 15; State v.
Farnsworth, 7th Dist. No. 12 CO 10, 2013-Ohio-1275, ¶1-3, 7; State v. Galindo-Barjas,
7th Dist. No. 12 MA 37, 2013-Ohio-43, ¶3, 6, 13. However, in none of these cases was
the panel presented with the question directly as it has been presented here: where the
defendant committed the crimes before the effective date of the statute, which version of
2929.14(C) applies.
{¶15} However, in one case, as part of an Anders/Toney review, State v. Pete, 7th
Dist. No. 12 MA 36, 2013-Ohio-663, ¶19, fn. 1, this court mentioned in a footnote that
R.C. 2929.14(C)(4) would not apply to such a situation. Excepting Galindo-Barjas, Pete
was decided prior to all of the above cases from this district, and thus arguably reversed
sub silentio by Power, Esmail and Farnsworth, Further, at least one district has called
into question the rationale in the Pete footnote. In State v. Venes, 8th Dist. No. 98682,
2013-Ohio-1891, the Eighth District explained:

We acknowledge that the court in State v. Pete, 7th Dist. No. 12 MA
 -6-

36, 2013-Ohio-663, 2013 WL 749374, found that the trial court did not have
to apply the law in effect at the time of sentencing. In Pete, the court
acknowledged that R.C. 2929.14(C)(4) had been amended and was in
effect at the time Pete was sentenced. Nevertheless, it stated:

The General Assembly expressly provided in Section 4 of
H.B. 86: "The amendments * * * apply to a person who
commits an offense specified or penalized under those
sections on or after the effective date of this section[.]" Pete
committed the offense on August 18, 2011. Thus, the trial
court was not required to make the consecutive sentence
findings prior to sentencing Pete to consecutive sentences.

Id. at ¶19, fn. 1.

In reaching this conclusion, the Seventh District Court of Appeals
failed to recognize that the language it quoted from Section 4 of H.B. 86
applied only to "division (A) of section 2929.14 of the Revised Code." In
other words, the felony penalties set forth in R.C. 2929.14(A) apply to those
persons who commit an offense after September 30, 2011—the effective
date of the section. Nothing in Section 4 can be understood as indicating
that it applies to anything other than R.C. 2929.14(A), and more
particularly, that the consecutive sentencing requirements of R.C.
2929.14(C)(4) apply only to those offenders who committed their crimes
after the effective date of the statute. Consistent with Jones and Huber,
[State v. Jones, 8th Dist. No. 98371, 2013-Ohio-489; State v. Huber, 8th
Dist. No. 98206, 2012-Ohio-6139] we find that the consecutive sentencing
provisions of H.B. 86 are effective for all offenders sentenced on or after
September 30, 2011, regardless of when those offenders committed their
crimes.
 -7-

Venes at ¶3-4.
{¶16} Other districts have also applied the consecutive sentencing provisions in
R.C. 2929.14(C)(4), as amended by H.B. 86, where the defendant was sentenced after
the effective date, notwithstanding the fact that the offenses were committed before the
effective date. For example, in State v. Wilson, 10th Dist. No. 12AP–551, 2013-Ohio-
1520, the Tenth District held that because the "the penalty or punishment for the offenses
might arguably be reduced if the trial court were required to make the findings required by
R.C. 2929.14(C)(4) before imposing consecutive sentence," then pursuant to R.C.
1.58(B), the consecutive sentencing provisions of H.B. 86 applied to a defendant who was
sentenced after, but committed the offenses before, the effective date of the statute.
Wilson at ¶14-17. See also State v. Clay, 4th Dist. No. 11CA23, 2013-Ohio-4649, fn. 2
(Fourth District citing Wilson with approval); State v. Johnson, No. 2012 CA 00054, 2012-
Ohio-5621, ¶39, citing State v. Williams, 5th Dist. No. 11–CA–115, 2012-Ohio-3211: ("a
defendant who committed his crime before the effective date of H.B. 86 but was
sentenced after the effective date could not be sentenced to consecutive sentences in the
absence of the judicial findings of fact mandated by R.C. 2929.14(C)."); State v. Jones,
1st Dist. No. C–110603, 2012-Ohio-2075, ¶17-23 (applying consecutive sentencing
provisions of H.B. 86, when offenses were committed before effective date of the statute,
and defendant was sentenced after.)
{¶17} Not only are we persuaded by the analysis of our sister districts, more
importantly, we must remain consistent with this court's most recent jurisprudence on the
subject, i.e., Esmail, Power, and Farnsworth. Accordingly, we hold that the consecutive
sentencing provisions of H.B. 86 apply to criminal defendants who were sentenced on or
after September 30, 2011, including those who committed the sentenced offenses before
that date. Moreover, we expressly overrule that portion of our decision in Pete which
holds otherwise.
{¶18} Accordingly, for all of the above reasons, the community control provisions
in R.C. 2929.13(B) and the R.C. 2929.14(C)(4) consecutive sentencing requirements do
 -8-

apply to Stout.
{¶19} Stout raises three assignments of error in this appeal as follows:
{¶20} "The record does not support the trial court's findings under O.R.C.
2929.13(B) and the sentence is clearly and conveincingly (sic) contrary to law."
{¶21} "The finding that the appellant caused 'physical harm' to any individual while
committing the offense was an abuse of discretion."
{¶22} "The decision to impose consecutive sentences is contrary to law."
{¶23} For clarity of analysis, we will reframe Stout's assignments of error. First,
Stout asserts that the trial court erred by finding that he caused physical harm by mere
possession of the images; and in the absence of the physical harm element the trial court
was mandated by R.C. 2929.13(B)(1) to impose a community control sanction. Second,
Stout asserts the trial court exacerbated the sentencing error by imposing consecutive
prison terms.
Failure to Impose Community Control
{¶24} Stout contends that community control was mandatory under the
circumstances of this case pursuant to R.C. 2929.13(B)(1), because the State failed to
establish that mere possession of the images caused physical harm as defined by Ohio's
criminal code. The version of R.C. 2929.13(B)(1) in effect at Stout's sentencing provided:

(a) Except as provided in division (B)(1)(b) of this section, if an
offender is convicted of or pleads guilty to a felony of the fourth or fifth
degree that is not an offense of violence, the court shall sentence the
offender to a community control sanction of at least one year's duration if all
of the following apply:
(i) The offender previously has not been convicted of or pleaded
guilty to a felony offense or to an offense of violence that is a misdemeanor
and that the offender committed within two years prior to the offense for
which sentence is being imposed.
(ii) The most serious charge against the offender at the time of
 -9-

sentencing is a felony of the fourth or fifth degree.
(iii) If the court made a request of the department of rehabilitation
and correction pursuant to division (B)(1)(c) of this section, the department,
within the forty-five-day period specified in that division, provided the court
with the names of, contact information for, and program details of one or
more community control sanctions of at least one year's duration that are
available for persons sentenced by the court.
(b) The court has discretion to impose a prison term upon an
offender who is convicted of or pleads guilty to a felony of the fourth or fifth
degree that is not an offense of violence if any of the following apply:
(i) The offender committed the offense while having a firearm on or
about the offender's person or under the offender's control.
(ii) The offender caused physical harm to another person while
committing the offense.
(iii) The offender violated a term of the conditions of bond as set by
the court.
(iv) The court made a request of the department of rehabilitation and
correction pursuant to division (B)(1)(c) of this section, and the department,
within the forty-five-day period specified in that division, did not provide the
court with the name of, contact information for, and program details of any
community control sanction of at least one year's duration that is available
for persons sentenced by the court.

{¶25} There is no dispute that Stout has not previously been convicted of or
pleaded guilty to a felony offense or to an offense of violence that is a misdemeanor
committed within two years prior to the offenses at issue here. Nor can there be any
dispute that the most serious charge against Stout at the time of sentencing was a fourth
or fifth degree felony. See R.C. 2929.13(B)(1)(a). He was convicted of two fourth-degree
felonies and 2 fifth-degree felonies.
 - 10 -

Physical Harm
{¶26} Thus at issue here is the application of subsection (b)(ii), whether the
"offender, [Stout], caused physical harm to another person while committing the offense."
R.C. 2929.13(B)(1)(b)(ii) (emphasis added.) The trial court reviewed the images and
found they "depicted many pictures of children in different sexual activities while nude"
and that "each prior showing of the minor children was an act which created physical
harm to the children pictured." Based upon these findings, the trial court sentenced Stout
to prison instead of imposing a community control sanction.
{¶27} As an initial matter, as both parties note, R.C. 2929.13(B)(1)(b) was
amended after Stout's sentencing to include more situations where the trial court has the
discretion, rather than was mandated, to sentence a fourth and fifth degree felon to
community control, including where "the offense is a sex offense that is a fourth or fifth
degree felony violation of any provision of Chapter 2907 of the Revised Code." See R.C.
2929.13(B)(1)(b)(v), as amended by S.B. 160, effective March 22, 2013. In other words,
the amended statute adds additional exceptions to the rule that community control is
mandatory for fourth and fifth degree felonies. Those exceptions, as expanded to now
include offenses such as those committed by Stout, vest trial courts with the discretion to
impose either a prison term or community control for those specified offenses. Each side
draws an opposite conclusion from the legislature's addition of this language and its
meaning for purposes of applying the statute as it was in effect at the time of Stout's
sentencing.
{¶28} However, this court can only apply the law as written at the time of Stout's
sentencing, since the statutory language employed by the General Assembly is clear and
unambiguous. See Silver Lake v. Metro Regional Transit Auth., 111 Ohio St.3d 324,
2006-Ohio-5790, 856 N.E.2d 236, ¶17, quoting Symmes Twp. Bd. of Trustees v. Smyth,
87 Ohio St.3d 549, 553, 721 N.E.2d 1057 (2000): "When the language of a statute is
plain and unambiguous and conveys a clear and definite meaning, there is no need for
this court to apply the rules of statutory interpretation."
{¶29} On appeal, as at sentencing, the State asserted that there is physical harm
 - 11 -

to the victim whenever child pornography is possessed and viewed as contemplated by
R.C. 2929.13(B)(1)(b)(ii), relying upon State v. McCartney, 12th Dist. No. CA2003-09-023,
2004-Ohio-4781. In McCartney, the defendant was charged with violating R.C.
2907.322(A)(5), possessing sexually oriented material involving minors, and the trial court
there made the physical harm finding in the context of imposing prison instead of
community control, pursuant to an earlier version of R.C. 2929.13(B)(1). The physical
harm finding was affirmed by the Twelfth District on appeal, McCartney at ¶49, and the
State urges this court to follow McCartney in the present case.
{¶30} In concluding that there is physical harm to the victim whenever child
pornography is possessed and viewed, the Twelfth District stated that " '[b]oth the
Supreme Courts of the United States and Ohio have unequivocally found that children are
seriously harmed by the mere possession of pornography in which they are depicted.' "
Id. at ¶47, quoting State v. Maynard, 132 Ohio App.3d 820, 827, 726 N.E.2d 574 (9th
Dist.1999), citing State v. Meadows, 28 Ohio St.3d 43, 503 N.E.2d 697 (1986), citing New
York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). Thus, the Twelfth
District agreed that the defendant "caused serious harm to several persons by
possessing graphic images of those minors depicted in sexual activity." McCartney at
¶47.
{¶31} However, the problem with McCartney is that the cases upon which it relies
do not directly stand for the proposition that possession of child pornography causes
physical harm to the victims as contemplated and defined by the Ohio criminal code,
which distinguishes between physical and psychological harm. Maynard held that
children depicted in pornographic images were "victimized" by the possession under the
meaning of former R.C. 2950.09(B)(2)(d) and (h), but did not state that those victims
suffered physical harm. Id. at 827-829.
{¶32} Significantly, both Meadows and Ferber involve First Amendment
challenges to criminal statutes involving child pornography. Ferber, 458 U.S. 747;
Meadows, 28 Ohio St.3d 43. These cases discuss at length government policy rationales
in support of the constitutionality of child pornography statutes. Ferber discussed the
 - 12 -

government's interest in eradicating child pornography, noting that the "use of children as
subjects of pornographic materials is harmful to the physiological, emotional and mental
health of the child." Id. at 758. Further, the Court noted that child pornography is related
to child sexual abuse in that "the harm to the child is exacerbated by * * * circulation" of
the materials. Id. at 759. In Meadows, the court emphasized that "child pornography
involves, by its nature, the physical, mental and sexual abuse, seduction and harmful
exploitation of children." Id. at 50.
{¶33} Unquestionably, possession of child pornography is not a victimless crime
and causes psychological harm to the victims. See Meadows, Maynard, Ferber.
However, to say it causes physical harm to the victims as defined by the Revised Code is
more tenuous. While Ferber and Meadows articulate a sound policy rationale in support
of the constitutionality of child pornography laws, those decisions do not necessarily
support the conclusion that a child who is depicted in pornography suffers physical harm,
as defined by Ohio law, specifically as used in R.C. 2929.13(B)(1)(b)(ii). In fact,
Meadows and Ferber identify emotional, mental and psychological harm as distinct from
physical harm, all of which flow from child pornography. Ohio law similarly distinguishes
between physical and psychological harm.
{¶34} Ohio's Criminal Code, set forth in Title 29 of the Ohio Revised Code defines
physical harm as follows: "As used in the Revised Code * * * any injury, illness, or other
physiological impairment, regardless of its gravity or duration." (Emphasis added.) R.C.
2901.01(A)(3). On the other hand, psychological harm, as contemplated by the First
Amendment analysis in Meadows and Ferber, was distinguished from the statutory
definition of physical harm by the Second District as follows:

"Physical harm" means "any injury, illness, or other physiological
impairment, regardless of its gravity or duration." R.C. 2901.01(A)(3). In
adopting this definition, the Legislative Service Commission commented
that "while physical illness is included in the concept of physical harm to
persons, mental illness is not. Serious mental conditions are reserved for
 - 13 -

the definition of serious physical harm to persons, but the milder mental
disturbances cannot be pinpointed with sufficient precision for use in the
criminal law." A psychological effect on the victim does not fall within the
statutory definition of "physical harm." State v. Dawson (1984), 16 Ohio
App.3d 443, 16 OBR 515, 476 N.E.2d 382; State v. Collier, Montgomery
App. No. 20131, 2005-Ohio-119, 2005 WL 78548, ¶ 61. Therefore, the
"less serious" factor that "the offender did not cause or expect to cause
physical harm to any person or property" is present.

State v. Nichols, 195 Ohio App.3d 323, 2011-Ohio-4671, 959 N.E.2d 1082, ¶28 (2d Dist.).
{¶35} Moreover Ohio's sentencing statutes are replete with distinctions between
physical and psychological harm. Just one example is found in one of the seriousness
factors courts consider when sentencing a felon: "The victim of the offense suffered
serious physical, psychological, or economic harm as a result of the offense." R.C.
2929.12(B)(2).
{¶36} Here, Stout contested the physical harm finding at sentencing and there is
nothing in the record demonstrating that the children portrayed in the images suffered
physical harm. In other words, there was nothing to prove the victims suffered "any injury,
illness, or other physiological impairment[,]" by Stout's mere possession of the images.
R.C. 2901.01(A)(3).
{¶37} The trial court and this court are bound to apply the law in effect at the time
of Stout's sentencing. Because the General Assembly limited subpart (b)(ii) to
considering whether the defendant caused physical harm, neither the trial court nor this
court can consider psychological harm. These two terms have separate and distinct
statutory definitions, and we are bound to give unambiguous statutory language the plain
meaning assigned to it by the General Assembly. In order for Stout to receive a sentence
other than community control, physical harm to the victim had to be present. Solely
possessing and viewing child pornography does not per se cause physical harm to the
victim, although it unquestionably causes the victim emotional, mental and psychological
 - 14 -

harm. That said, if the facts were different and Stout was charged with taking the pictures
and directing the children, physical harm could be found. However, we do not have those
facts in this case; the offense here involves only possession.
{¶38} While this court may disagree with the language of R.C. 2929.13(B)(1)(b)
which required a showing of physical harm but provides for no consideration of the
psychological harm that re-publication and possession of this material causes the victim,
we are constrained by the plain language of the statute. Constitutional delegation of
authority and separation of powers dictate that the legislature, not the courts, is the
branch empowered to amend clear and unambiguous statutory language. Apparently the
Ohio General Assembly must have deemed the language problematic; as noted above, it
recently amended R.C. 2929.13(B)(1)(b) to now grant trial courts the discretion to impose
a prison sentence for crimes such as the one committed by Stout. Had that amendment
been in effect when Stout was sentenced, clearly the trial court would have been acting
within its discretion to sentence Stout to prison. However, it was not; thus, the trial court
was mandated to impose community control. While this court may disagree with such
limitation on the trial court's discretion, we are bound by the plain language of R.C.
2929.13(B)(1)(b) that was in effect at the time of Stout's sentencing.
{¶39} The trial court's physical harm finding was erroneous; thus, it was also
erroneous for the trial court to impose a prison sentence. The version of R.C.
2929.13(B)(1) in effect at the time of Stout's sentencing mandates a community control
sanction under these circumstances. Accordingly, Stout's first and second assignments
of error are meritorious. In light of this conclusion Stout's third assignment of error
asserting the trial court erred by imposing consecutive sentences is moot and we decline
to address it. App.R. 12(A)(1)(c).
{¶40} In sum, R.C. 2929.14(C)(4) and R.C. 2929.13(B)(1)(a), both as amended by
H.B. 86, apply to defendants who committed the offenses before the effective date of the
amendment but were sentenced after; thus they also apply to Stout. The trial court's
physical harm finding was erroneous, and therefore the trial court also erred by imposing
a prison sentence. Accordingly, the judgment of the trial court with regard to Stout's
 - 15 -

sentence is reversed and the matter remanded for resentencing.
Donofrio, J., concurs.
Vukovich, J., concurs.