[Cite as State v. Williams, 2013-Ohio-3410.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2012-08-080
: OPINION
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:
GEORGE R. WILLIAMS, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
Case No. 11CR27846
David P. Fornshell, Warren County Prosecuting Attorney, Michael Greer, 500 Justice Drive,
Lebanon, Ohio 45036, for plaintiff-appellee
John J. Helbling, 6539 Harrison Avenue, #124, Cincinnati, Ohio 45247, for defendant-
appellant
HENDRICKSON, P.J.
{¶ 1} Defendant-appellant, George R. Williams, appeals from his convictions and
sentence in the Warren County Court of Common Pleas for three counts of gross sexual
imposition, all felonies of the third degree. For the reasons discussed below, we affirm in
part, reverse in part, and remand this matter to the trial court.
I. FACTS
Warren CA2012-08-080
{¶ 2} Appellant was indicted on November 14, 2011 on five counts of gross sexual
imposition, in violation of R.C. 2907.05(A)(4). The charges arose out of allegations that
appellant had sexual contact with his step-granddaughters, K.R. and S.R., both of whom
were less than 13 years of age at the time of the offenses. Specifically, the indictment
alleged that between April 25, 2009 and February 2011, appellant touched K.R.'s breasts
(count one) and vaginal area (count two), and S.R.'s vaginal area (count four) and buttocks
(count five) while at the victims' residence on South River Street in Franklin, Warren County,
Ohio. The indictment further alleged that between February 2011 and June 2011, appellant
touched K.R.'s vaginal area at the victim's residence on Clark Street, in Franklin, Warren
County, Ohio (count three).
{¶ 3} A bench trial was held in June 2012. At trial, the state presented testimony
from the two victims, their mother, Christina B., one of their older sisters, D.B., and Detective
Stephen Figliola and Officer Jordan Colvin of the City of Franklin Police Department.
Christina testified that she has lived on Clark Street in Franklin, Ohio with her five daughters,
"Nicki" (age 18), D.B. (age 17), J.B. (age 15), K.R. (age 10), and S.R. (age 9) since February
17, 2011. Prior to residing on Clark Street, Christina and her daughters rented a home on
South River Street in Franklin, Ohio. Christina testified that her mother, Peggy W., and
appellant, to whom Peggy was married, lived with her from time to time at both locations, and
there were instances when appellant was left home alone with her children. Christina stated
that as of June 2011, neither Peggy nor appellant resided in Christina's home on Clark
Street.
{¶ 4} Christina testified that on the evening of August 30, 2011, she and her two
youngest daughters, S.R. and K.R., were downstairs in the living room when K.R. confessed
that appellant had inappropriately touched her and S.R. Christina stated that K.R. was
embarrassed and upset when she was explaining what happened to her, and that S.R., who
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was also upset and crying, had nodded her head during K.R.'s statement as if to say that the
touching had also happened to her. Christina explained that she immediately called the
Franklin Police Department and officers responded to her house later that evening. Neither
K.R. nor S.R. were able to tell the officers what had occurred with appellant, but both children
were able to give a statement when interviewed at the Child Advocacy Center in Middletown,
Ohio a few days later.
{¶ 5} On cross-examination, Christina admitted she and her mother had a difficult
relationship. She also admitted that they had fought in early August 2011 after Peggy
allowed Christina's oldest daughter Nicki to live with her and appellant. However, at the time
K.R. disclosed the molestation on August 30, 2011, Christina stated she and Peggy were
"getting along a little bit" and she had no reason to want to "get back" at appellant by
encouraging her children to make up a story about appellant inappropriately touching them.
Christina expressly denied telling K.R. or S.R. to manufacture abuse allegations against
appellant. However, Christina did admit during cross-examination that in 1998 she had
accused the father of her daughter D.B. of inappropriately touching D.B. about a week after
D.B.'s father had filed for custody. No charges were ever filed against D.B.'s father and he
later gained custody of D.B. Christina also admitted on cross-examination that she had been
convicted of child-endangerment in 2005 and her children had been removed from her
custody at that time.
{¶ 6} K.R. was then called to the stand, and she testified she was ten years old at the
time of trial and would be entering the fifth grade. K.R. stated appellant had lived with her at
two different houses, one on South River Street and one on Clark Street. K.R. testified that
when she was living at the South River Street home, appellant "touched my private spot. He
touched * * * my private spot from down here and he went by the pee spot and rubbed up
and down. * * * He rubbed on my pee spot up and down." When asked to clarify what she
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meant by "private spot," K.R. stated that a private spot is "where you go pee." According to
K.R., appellant would touch her "private spot" under her clothes with his hand while they were
on the couch watching TV in the living room. K.R. also stated that appellant touched her
"private spot" on the couch in the living room of the Clark Street residence. K.R. explained
that when the touching occurred S.R. would be in the room, but she would be sitting farther
away from them on the couch. K.R. said appellant only touched her "private spot" when
Christina and Peggy were gone from the house and her older sisters were upstairs in their
room. K.R. testified that after appellant was done touching her, he told her not to tell anyone
about what had happened. K.R. further testified that while at the house on South River
Street, she saw appellant touch S.R.'s "private spot" with his hand, but did not know if it was
underneath or on top of S.R.'s clothing.
{¶ 7} K.R. explained that she finally told Christina about what appellant had been
doing because she "thought it was time" and she knew "it was the right thing to do." K.R.
also testified that she was worried that appellant might "do it" to her three-year-old cousin
who was now living with appellant. On cross-examination, K.R. admitted that when asked by
the Child Advocacy Center representative why she finally told Christina about what appellant
had been doing, she had responded, "because once [Christina and Peggy] got in a fight and
then I thought next time whoever gets in a fight with mommy, I'm going to tell on him. And
the next time I told her." K.R. expressly denied fabricating the events, and she testified that
the only thing Christina had instructed her to say when she testified at trial was the truth.
{¶ 8} Following K.R.'s testimony, S.R. was called to the stand. S.R. testified that she
was nine years old at the time of trial and would be entering the fifth grade. She stated that
while she was living on South River Street, appellant touched "[p]laces he's not supposed to
touch." S.R. explained that while on the couch in the living room, appellant touched her
"front part," which she described as her private place where she "goes potty." S.R. stated
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that appellant used his hand to touch her "front part" on top of her clothing, and that he would
move his hand back and forth. Appellant told her not to tell about what had occurred or
"something bad [would] happen." S.R. stated she saw appellant touch K.R.'s "front part" too.
According to S.R., neither Christina nor Peggy was home when appellant touched her.
{¶ 9} S.R. admitted on cross-examination that she had only told Christina about the
touching after Peggy and Christina got into a fight. However, S.R. stated that she was telling
the truth about what appellant had done and Christina had never instructed her to make up
allegations against appellant as a means of "get[ting] back at [appellant] for something."
{¶ 10} D.B. and Officer Colvin were called to the stand to testify about the victims'
demeanor on August 30, 2011. D.B. stated that she was upstairs in her home on Clark
Street when her mother yelled for her to come downstairs. Upon arriving downstairs, she
found Christina, S.R., and K.R. visibly upset. All three were crying, S.R. was trying to hide,
and K.R. was covering her face. D.B. stated that K.R. originally did not want to tell her about
the touching, but "she eventually [told]" her. S.R., however, would not talk to D.B. about the
events. Officer Colvin, who responded to the scene later that evening, testified that S.R. and
K.R. did not want to speak about the events and they "shied away" from him whenever he
attempted to question them.
{¶ 11} Detective Figliola testified that he was able to observe S.R. and K.R.'s
interviews at the Child Advocacy Center on September 2, 2011. He described K.R. as quiet,
soft spoken and, "kind of more * * * drawn back a little bit as she was speaking about what
was happening." Similarly, he observed that S.R. appeared more withdrawn and bashful
when being questioned about appellant. Following the victims' interviews at the Child
Advocacy Center, Detective Figliola arranged an interview with appellant. During the course
of this interview, Detective Figliola felt that appellant had admitted to wrongdoing when
appellant stated that "he could have" accidently touched areas he should not have when
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tickling the children, but "if [he] did, [he] didn't know it."
{¶ 12} At the close of the state's case, appellant moved for a Crim.R. 29 acquittal on
all counts. The trial court granted the motion as to counts one and five, but denied the
motion on counts two, three, and four. Thereafter, appellant presented evidence in his
defense, which included his own testimony and testimony from various members of Christina
and the victims' family, former employers of Christina, former caseworkers from Butler
County Children Services who had dealt with Christina, and William Allen, the father of D.B.
Appellant sought to elicit testimony demonstrating that Christina was a vindictive, abusive
individual who coached, induced, or otherwise coerced her daughters into levying allegations
against appellant as a means of striking back at Peggy.
{¶ 13} At trial, Allen testified that in 1998, approximately one week after he sought
custody of his daughter D.B., Christina made claims that he had inappropriately touched D.B.
According to Allen, Christina approached five different law enforcement agencies seeking to
find someone willing to move forward on her complaint. Allen testified that no charges ever
arose out of Christina's claims, and he was eventually awarded custody of D.B.
{¶ 14} Derrick W., Christina's brother and Peggy's son, testified at trial that he had
lived with Christina on South River Street, and during the time he was living there, he never
saw appellant alone with K.R. or S.R. He did, however, observe Christina being physically,
mentally, and emotionally abusive to her children. He characterized Christina as a
manipulative and vindictive person who frequently tried to "get even" with people who had
upset her.
{¶ 15} Four different caseworkers from Butler County Children Services were also
called to testify. These caseworkers testified that Christina had a history with Children
Services and there were instances when Christina had lost custody of her children. One
caseworker testified that in July 2005, she observed a cigarette burn under the eye of S.R.
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Another caseworker testified that throughout Christina's history with Children Services there
had been reported concerns about Christina's tendency to make false reports to Children
Services and the police. Another case worker noted that Christina failed to provide truthful
responses to questions presented during the course of a psychological assessment.
{¶ 16} Appellant's wife, Peggy, also testified on behalf of his defense. Peggy stated
that in August 2011, she and Christina got into an argument regarding Christina's treatment
of her oldest daughter, Nicki. Peggy stated that she had observed Christina punch Nicki, pull
Nicki's hair, and tell Nicki to hurry up and grow up so that she could get out of Christina's
house. Nicki moved into Peggy's home shortly after the argument, which caused tension
between Peggy and Christina, and Christina threatened to "even the score." Less than two
weeks later, S.R. and K.R. came forward with their claims that appellant inappropriately
touched them. Peggy expressed her belief that such claims were being levied against
appellant by S.R. and K.R. because the girls feared their mother, who is abusive towards
them. Peggy believed Christina convinced K.R. and S.R. to lie about events so that she
could hurt Peggy by "tak[ing] away the only thing [she] has left good in [her] life, [her]
husband."
{¶ 17} Peggy also testified that she and appellant did not live with Christina at the
South River Street residence. Peggy testified that she and appellant only stayed at the South
River Street apartment briefly so that they could help Christina pack to move to the house on
Clark Street. Peggy testified that during the time she and appellant stayed with Christina,
regardless of whether it was the South River Street home or the Clark Street home, appellant
was never left alone with S.R. or K.R. Peggy testified that she was "always" with him and
never observed him inappropriately touching S.R. or K.R.
{¶ 18} Appellant took the stand in his own defense and testified that he has never
touched K.R. or S.R.'s private parts. Appellant believed the allegations that he
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inappropriately touched S.R. and K.R. were brought out of Christina's vindictiveness in an
effort to get even with Peggy because Peggy allowed Christina's eldest daughter to move into
her home. Appellant stated he has no interest in touching S.R. or K.R. in a sexual manner.
Appellant admitted that he would engage in "tickle play" with the girls, but he claims he only
touched S.R. and K.R. on their ribs. Appellant also testified that when he and Peggy stayed
with Christina, he was never apart from his wife.
{¶ 19} Following appellant's testimony, the defense renewed its Crim.R. 29 motion for
acquittal on the remaining counts. The trial court denied the motion, and closing arguments
were held. Thereafter, the trial court found appellant guilty of gross sexual imposition as
specified in counts two, three, and four of the indictment. In reaching its guilty finding, the
trial court specifically stated the following:
THE COURT: * * * There is no doubt in my mind that [Christina]
is a big fat liar. There is no doubt whatsoever that she would be
more than willing for Mr. Williams to go to prison to prove a
minor point on her behalf.
***
I have given this careful consideration. And I have basically
discounted anything that [Christina] had to do with this. But I
don't believe these little girls are fabricating this, sir.
{¶ 20} On August 21, 2012, appellant was sentenced to five years of community
control with potential 36-month prison terms on counts two and three to be served
concurrently with each other but consecutively to a 36-month prison term on count four, for a
total of 72 months, if appellant violates the terms of his community control. Appellant now
appeals, raising four assignments of error. For ease of discussion, we will address
appellant's first, second, and third assignments of error together.
II. ANALYSIS
{¶ 21} Assignment of Error No. 1:
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{¶ 22} THE TRIAL JUDGE ERRED TO THE PREJUDICE OF DEFENDANT-
APPELLANT BY FINDING HIM GUILTY OF GROSS SEXUAL IMPOSITION WITHOUT
SUFFICIENT EVIDENCE.
{¶ 23} Assignment of Error No. 2:
{¶ 24} THE TRIAL JUDGE ERRED TO THE PREJUDICE OF DEFENDANT-
APPELLANT BY FINDING HIM GUILTY OF GROSS SEXUAL IMPOSITION AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 25} Assignment of Error No. 3:
{¶ 26} THE TRIAL JUDGE ERRED TO THE PREJUDICE OF DEFENDANT-
APPELLANT BY DENYING HIS MOTIONS FOR ACQUITTAL UNDER OHIO RULE OF
CRIMINAL PROCEDURE 29.
{¶ 27} In his first, second, and third assignments of error, appellant argues that the
trial court erred by denying his Crim.R. 29(C) motion for acquittal on counts two, three, and
four, that his convictions for gross sexual imposition were not supported by sufficient
evidence, and that his convictions were against the manifest weight of the evidence.
Specifically, appellant argues that the trial court's "refusal to acknowledge Christina's
manipulations and physical abuse propensities against the minors as a catalyst for their
fabrications established the tipping point where the trier of fact lost its way." Appellant also
contends that the state failed to present evidence establishing that his alleged actions were
"for the purpose of sexually arousing or gratifying" either himself of the victims, as required by
R.C. 2907.01(B).
{¶ 28} Crim.R. 29(C) permits a trial court, upon motion, to set aside a guilty verdict and
enter a judgment of acquittal. State v. Grinstead, 194 Ohio App.3d 755, 2011-Ohio-3018, ¶ 9
(12th Dist.). "This court reviews a trial court's decision on a Crim.R. 29(C) motion for
acquittal using the same standard as that used to review a sufficiency-of-the-evidence claim."
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Id.; State v. Clements, 12th Dist. Butler No. CA2009-11-277, 2010-Ohio-4801, ¶ 17; State v.
Moshos, 12th Dist. Clinton No. CA2009-06-008, 2010-Ohio-735, ¶ 26.
{¶ 29} Whether the evidence presented at trial is legally sufficient to sustain a verdict
is a question of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997); Grinstead at ¶ 10.
When reviewing the sufficiency of the evidence underlying a criminal conviction, an appellate
court examines the evidence in order to determine whether such evidence, if believed, would
convince the average mind of the defendant's guilt beyond a reasonable doubt. State v.
Paul, 12th Dist. Fayette No. CA2011-10-026, 2012-Ohio-3205, ¶ 9. Therefore, "[t]he relevant
inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime proven beyond a
reasonable doubt." State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.
{¶ 30} On the other hand, a manifest weight of the evidence challenge examines the
"inclination of the greater amount of credible evidence, offered at a trial, to support one side
of the issue rather than the other." State v. Barnett, 12th Dist. Butler No. CA2011-09-177,
2012-Ohio-2372, ¶ 14. To determine whether a conviction is against the manifest weight of
the evidence, the reviewing court must look at the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of the witnesses, and determine whether in
resolving the conflicts in the evidence, the trier of fact clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.
State v. Graham, 12th Dist. Warren No. CA2008-07-095, 2009-Ohio-2814, ¶ 66. "While
appellate review includes the responsibility to consider the credibility of witnesses and weight
given to the evidence, 'these issues are primarily matters for the trier of fact to decide.'"
State v. Barnes, 12th Dist. Brown No. CA2010-06-009, 2011-Ohio-5226, ¶ 81, quoting State
v. Walker, 12th Dist. Butler No. CA2006-04-085, 2007-Ohio-911, ¶ 26. An appellate court,
therefore, will overturn a conviction due to the manifest weight of the evidence only in
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extraordinary circumstances when the evidence presented at trial weighs heavily in favor of
acquittal. Id., citing Thompkins, 78 Ohio St.3d at 387. Furthermore, "[a] determination that a
conviction is supported by the manifest weight of the evidence will also be dispositive of the
issue of sufficiency." State v. Jones, 12th Dist. Butler No. CA2012-03-049, 2013-Ohio-150, ¶
19.
{¶ 31} Appellant was convicted on three counts of gross sexual imposition in violation
of R.C. 2907.05(A)(4), which provides that "[n]o person shall have sexual contact with
another, not the spouse of the offender * * * when * * * [t]he other person * * * is less than
thirteen years of age, whether or not the offender knows the age of that person." Sexual
contact "means any touching of an erogenous zone of another, including without limitation
the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the
purpose of sexually arousing or gratifying either person." R.C. 2907.01(B).
{¶ 32} After reviewing the entire record, weighing inferences and examining the
credibility of witnesses, we do not find that appellant's convictions for gross sexual imposition
were against the manifest weight of the evidence. Even disregarding Christina's testimony
altogether, there was sufficient, credible evidence for the court to conclude that appellant had
engaged in sexual contact with the minor victims. K.R.'s and S.R.'s testimony demonstrated
that at the time of the touching, the victims were not married to appellant and they were both
less than 13 years of age. K.R.'s testimony that appellant rubbed her "private spot" under her
clothing, first at the home on South River Street and then later at the home on Clark Street,
and S.R.'s testimony that appellant touched her "front part" while at the South River Street
residence, is evidence that appellant touched K.R.'s and S.R.'s erogenous zones, specifically
their genitals.
{¶ 33} Furthermore, as to the issue of whether the state presented evidence that
appellant touched K.R. or S.R. for the purpose of sexual arousal or gratification, we note that
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"there is no requirement that there be direct testimony regarding sexual arousal or
gratification." State v. Gesell, 12th Dist. Butler No. CA2005-08-367, 2006-Ohio-3621, ¶ 25;
In re D.S., 12th Dist. Warren Nos. CA2004-04-036, CA2004-04-046, 2005-Ohio-1803, ¶ 19;
State v. Oddi, 5th Dist. Delaware No. 02CAA01005, 2002-Ohio-5926, ¶ 45. "Whether the
touching was performed for the purpose of sexual arousal or gratification is a question of fact
to be inferred from the type, nature, and circumstances of the contact." Gesell. Furthermore,
in determining the defendant's purpose, the trier of fact may infer what the defendant's
motivation was in making the physical contact with the victim. Id.
{¶ 34} In the case sub judice, we find there was sufficient evidence to allow the trial
court to infer that appellant's motive in touching K.R.'s "private spot" and S.R.'s "front part"
was sexual arousal or gratification. S.R. and K.R. testified that appellant rubbed their
genitals "up and down" and "back and forth" only when other adults were absent from the
home and he instructed them not to tell anyone about the touching. Such evidence
supported an inference that appellant's actions in touching the minor victims' genitals was for
the purpose of sexually arousing or gratifying himself as contemplated by R.C. 2907.01(B).
See Gesell at ¶ 23-26.
{¶ 35} Finally, while appellant has denied having any sexual contact with the minor
victims, claiming that the victims' claims are fabrications arising out of "Christina's
manipulations" in an effort to "get even" with Peggy, it is clear that the trial court found S.R.'s
and K.R.'s testimony to be credible. "Although a reviewing court looks at the record anew
when considering whether a verdict at trial is against the manifest weight of evidence, the trial
court, not the appellate court, is in the best position to evaluate testimony and determine the
credibility of witnesses." State v. Guzzo, 12th Dist. Butler No. CA2003-09-232, 2004-Ohio-
4979, ¶ 13. Here, the trial court obviously found K.R.'s and S.R.'s testimony to be credible
and chose to believe their version of events over appellant's proffered version. In doing so,
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the trial court clearly stated on the record that it discounted Christina's testimony given
Christina's propensity to be a "big fat liar." It is well-established that when "conflicting
evidence is presented at trial, a conviction is not against the manifest weight of the evidence
simply because the trier of fact believed the prosecution testimony." Id.
{¶ 36} Accordingly, given the evidence presented, we find that the trial court did not
clearly lose its way and that the evidence presented at trial did not weigh heavily in favor of
acquittal. Appellant's convictions for gross sexual imposition were not against the manifest
weight of the evidence. As a result of this finding, we necessarily conclude that the state
presented sufficient evidence to support the court's finding of guilt and to overcome
appellant's Crim.R. 29(C) motion as to counts two, three, and four. Accordingly, appellant's
first, second, and third assignments of error are overruled.
{¶ 37} Assignment of Error No. 4:
{¶ 38} THE TRIAL JUDGE ERRED TO THE PREJUDICE OF DEFENDANT-
APPELLANT BY SENTENCING HIM TO A CONSECUTIVE PRISON TERM UNDER COUNT
FOUR.
{¶ 39} In his fourth assignment of error, appellant contends the trial court erred by
ordering consecutive sentences if he violates the terms of his community control without
making the appropriate findings as required by R.C. 2929.14(C)(4). The state contends,
however, that appellant received a community control sentence, not a consecutive sentence,
and that the trial court was therefore not required to make any findings as contemplated by
R.C. 2929.14(C)(4). Rather, the state asserts that the trial court was merely required to
comply with the requirements of R.C. 2929.19(B)(4) by informing appellant of the specific
prison term that may be imposed if he violates his community control, which the court did by
informing appellant of the 72-month "ceiling on the potential prison term."
{¶ 40} In a recent opinion, this court had the opportunity to consider when it is ripe for
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a reserved sentence to be challenged; that is, when the sentence is first imposed or when
community control is later revoked and the defendant is ordered to serve the reserved
sentence. In State v. Painter, 12th Dist. Clermont No. CA2012-04-031, 2013-Ohio-529, ¶ 18,
we determined that a "sentence is imposed when it is pronounced," and the sentence is,
therefore, immediately capable of being reviewed. Accord State v. Clay, 12th Dist. Madison
No. CA2011-12-016, 2012-Ohio-5011, ¶ 17-20 (relying on R.C. 2929.01(DD) and (EE), this
court found that a penalty and punishment were imposed on the defendant when he initially
received his sentence). "While an imposed sentence may be stayed or otherwise held in
abeyance, as is the case when the [defendant] is placed on community control, it is
nevertheless sufficiently established for purposes of appeal." Painter at ¶18. Accordingly,
pursuant to our holding in Painter, the time for a defendant to challenge the imposition of
reserved consecutive sentences is on direct appeal of the judgment entry that initially sets
forth the reserved sentence.
{¶ 41} Our decision in Painter was inapposite of this court's previous decisions in State
v. Sneed, 12th Dist. Butler No. CA2004-06-153, 2005-Ohio-1078 and State v. Madaffari, 12th
Dist. Butler No. CA2004-08-193, 2005-Ohio-3625. In Sneed and Madaffari, the defendants
were sentenced to community control, with consecutive prison terms reserved. Sneed at ¶ 3;
Madaffari at ¶ 2. After the defendants violated the terms of their community control and were
ordered to serve their reserved consecutive sentences, the defendants appealed, arguing
that the trial court was required to make the requisite statutory findings to impose consecutive
sentences at the initial sentencing hearing. Sneed at ¶ 5 and 10; Madaffari at ¶ 2 and 12.
We rejected the defendants' arguments, stating that "[t]he sentencing statutes under R.C.
Chapter 2929 indicate that findings and reasons, if applicable, must be given when a prison
sentence is imposed." Sneed at ¶ 10; Madaffari at ¶ 14. "Thus, it follows that a trial court is
required to make the statutory findings and supporting reasons under R.C. 2929.14[C](4), not
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when it sentences a defendant to community control, but when it actually imposes a
consecutive prison term." Madaffari at ¶ 14.
{¶ 42} Given our holding in Painter and Clay that a sentence is imposed when it is first
pronounced, we hereby overrule Sneed and Madaffari to the extent that those cases indicate
that a reserved sentence is not imposed until after revocation of community control. The
time for a defendant to challenge the imposition of reserved consecutive sentences is on
direct appeal of the judgment entry which initially sets forth the sentence.
{¶ 43} As appellant's reserved consecutive sentence has been legally pronounced and
thus imposed, we review appellant's sentence to determine whether the imposition of the
reserved consecutive sentence is clearly and convincingly contrary to law. See State v.
Crawford, 12th Dist. Clermont No. CA2012-12-088, 2013-Ohio-3315, ¶ 6-7; R.C.
2953.08(G)(2).
{¶ 44} In 2011 Am.Sub.H.B. No. 86 ("H.B. 86"), the General Assembly revived the
requirement that a trial court make certain factual findings before imposing consecutive
sentences. State v. Dillon, 12th Dist. Madison No. CA2012-06-012, 2013-Ohio-335, ¶ 8. A
trial court must now engage in a three-step analysis and make certain findings before
imposing consecutive sentences pursuant to R.C. 2929.14(C)(4). Id. at ¶ 9. First, the trial
court must find that the consecutive sentence is necessary to protect the public from future
crime or to punish the offender. R.C. 2929.14(C)(4). Second, the trial court must find that
consecutive sentences are not disproportionate to the seriousness of the offender's conduct
and to the danger the offender poses to the public. Id. Third, the trial court must find that
one of the following applies:
(a) The offender committed one or more of the multiple
offenses while the offender was awaiting trial or sentencing, was
under a sanction imposed pursuant to section 2929.16, 2929.17,
or 2929.18 of the Revised Code, or was under post-release
control for a prior offense.
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(b) At least two of the multiple offenses were committed as part
of one or more courses of conduct, and the harm caused by two
or more of the multiple offenses so committed was so great or
unusual that no single prison term for any of the offenses
committed as part of any of the courses of conduct adequately
reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from
future crime by the offender.
R.C. 2929.14(C)(4)(a)-(c).
{¶ 45} "A trial court satisfies the statutory requirement of making the required findings
when the record reflects that the court engaged in the required analysis and selected the
appropriate statutory criteria." Smith at ¶ 26, citing State v. Alexander, 1st Dist. Hamilton
Nos. C-110828 and C-110828, 2012-Ohio-3349, ¶ 16. In imposing consecutive sentences,
"the trial court is not required to state any talismanic language" or otherwise give reasons
explaining its findings. State v. Oren, 12th Dist. Madison No. CA2012-05-010, 2013-Ohio-
531, ¶ 25; State v. Hubbard, 10th Dist. Franklin No. 11AP-945, 2013-Ohio-2735, ¶ 86.
Nevertheless, the record must reflect that the court made the requisite findings. Id.
{¶ 46} After reviewing the record, it is clear that the trial court did not make any of the
findings required by R.C. 2929.14(C)(4) before imposing the reserved consecutive sentence.
At the sentencing hearing, the court merely announced the sentence, stating:
THE COURT: All right. On Count two, reserving 36 months in
prison. Count three, reserving 36 months in prison. Those two
run concurrent. Count four, reserving 36 months in prison. That
runs consecutive. I'm place him on community control for a
period of five years.
Because the trial court failed to comply with R.C. 2929.14(C)(4) by neglecting to make any of
the required findings before imposing the reserved consecutive sentence, we find that
appellant's sentence is clearly and convincingly contrary to law. Accordingly we vacate
appellant's sentence and remand the case for resentencing. See Hubbard at ¶ 87.
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Warren CA2012-08-080
{¶ 47} Appellant's fourth assignment of error is sustained.
III. CONCLUSION
{¶ 48} Appellant's convictions for gross sexual imposition are affirmed. We hereby
vacate that portion of the trial court's judgment ordering that appellant's reserved sentence be
served consecutively and remand this matter to the trial court for resentencing. On remand,
the trial court shall consider whether a reserved consecutive sentence is appropriate under
R.C. 2929.14(C), and, if so, it shall make the proper findings on the record. In all other
respects, the trial court's sentence is affirmed.
{¶ 49} Judgment affirmed in part, reversed in part, and remanded to the trial court for
further proceedings consistent with this opinion.
S. POWELL and PIPER, JJ., concur.
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State v. Williams
Combined Opinion