[Cite as State v. Eager, 2015-Ohio-3525.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HENRY COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 7-15-02
v.
RYAN D. EAGER, OPINION
DEFENDANT-APPELLANT.
Appeal from Henry County Common Pleas Court
Trial Court No. 14-CR-0092
Judgment Affirmed
Date of Decision: August 31, 2015
APPEARANCES:
Billy D. Harmon for Appellant
J. Hawken Flanagan for Appellee
Case No. 7-15-02
PRESTON, J.
{¶1} Defendant-appellant, Ryan D. Eager (“Eager”), appeals the February
25, 2015 judgment entry of sentence of the Henry County Court of Common
Pleas. For the reasons that follow, we affirm the judgment of the trial court.
{¶2} On October 16, 2014, the Henry County Grand Jury indicted Eager on
seven counts: Counts One through Seven of gross sexual imposition in violation of
R.C. 2907.05(A)(4), third-degree felonies. (Doc. No. 2).
{¶3} On October 24, 2014, Eager appeared for arraignment and entered
pleas of not guilty. (Doc. No. 11).
{¶4} On January 8, 2015, Eager withdrew his pleas of not guilty and
entered guilty pleas, under a written plea agreement, to Counts One, Two, Three,
and Four. (Doc. No. 14); (Jan. 8, 2015 Tr. at 10-11). In exchange for his change
of pleas, the State agreed to dismiss Counts Five, Six, and Seven. (Id.); (Id. at 2).
The trial court accepted Eager’s guilty pleas, found him guilty on Counts One,
Two, Three, and Four, dismissed Counts Five, Six, and Seven, and ordered a
presentence investigation (“PSI”). (Doc. Nos. 16, 17); (Jan. 8, 2015 Tr. at 11).
{¶5} On February 20, 2015, the trial court sentenced Eager to three years in
prison on Count One, three years in prison on Count Two, three years in prison on
Court Three, and three years in prison on Count Four and ordered that Eager serve
-2-
Case No. 7-15-02
the terms consecutively for an aggregate sentence of 12 years. (Doc. No. 17);
(Feb. 20, 2015 Tr. at 13).
{¶6} On February 25, 2015, the trial court filed its judgment entry of
sentence. (Doc. No. 17).
{¶7} On March 2, 2015, Eager filed his notice of appeal. (Doc. No. 20).
He raises one assignment of error for our review.
Assignment of Error
The Sentence Imposed upon Defendant-Appellant was Contrary
to Law and an Abuse of Discretion.
{¶8} In his assignment of error, Eager argues that the trial court erred in
imposing consecutive sentences because there is no evidence in the record that the
victim’s harm was great or unusual as required by R.C. 2929.14.
{¶9} A trial court’s sentence will not be disturbed on appeal absent a
defendant’s showing by clear and convincing evidence that the sentence is
unsupported by the record; that the sentencing statutes’ procedure was not
followed or there was not a sufficient basis for the imposition of a prison term; or
that the sentence is contrary to law. State v. Ramos, 3d Dist. Defiance No. 4-06-
24, 2007-Ohio-767, ¶ 23 (stating that “the clear and convincing evidence standard
of review set forth under R.C. 2953.08(G)(2) remains viable with respect to those
cases appealed under the applicable provisions of R.C. 2953.08(A), (B), and (C) *
* *”); State v. Rhodes, 12th Dist. Butler No. CA2005-10-426, 2006-Ohio-2401, ¶
-3-
Case No. 7-15-02
4; State v. Tyson, 3d Dist. Allen Nos. 1-04-38 and 1-04-39, 2005-Ohio-1082, ¶ 19,
citing R.C. 2953.08(G).
{¶10} Clear and convincing evidence is that “which will produce in the
mind of the trier of facts a firm belief or conviction as to the facts sought to be
established.” Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the
syllabus; State v. Boshko, 139 Ohio App.3d 827, 835 (12th Dist.2000). An
appellate court should not, however, substitute its judgment for that of the trial
court because the trial court is “‘clearly in the better position to judge the
defendant’s dangerousness and to ascertain the effect of the crimes on the
victims.’” State v. Watkins, 3d Dist. Auglaize No. 2-04-08, 2004-Ohio-4809, ¶ 16,
quoting State v. Jones, 93 Ohio St.3d 391, 400 (2001).
{¶11} “Except as provided in * * * division (C) of section 2929.14, * * * a
prison term, jail term, or sentence of imprisonment shall be served concurrently
with any other prison term, jail term, or sentence of imprisonment imposed by a
court of this state, another state, or the United States.” R.C. 2929.41(A). R.C.
2929.14(C) provides:
(4) * * * [T]he court may require the offender to serve the prison
terms consecutively if the court finds that the consecutive service is
necessary to protect the public from future crime or to punish the
offender and that consecutive sentences are not disproportionate to
-4-
Case No. 7-15-02
the seriousness of the offender’s conduct and to the danger the
offender poses to the public, and if the court also finds any of the
following:
(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.
(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.
{¶12} R.C. 2929.14(C)(4) requires a trial court to make specific findings on
the record before imposing consecutive sentences. State v. Hites, 3d Dist. Hardin
No. 6-11-07, 2012-Ohio-1892, ¶ 11; State v. Peddicord, 3d Dist. Henry No. 7-12-
-5-
Case No. 7-15-02
24, 2013-Ohio-3398, ¶ 33. Specifically, the trial court must find: (1) consecutive
sentences are necessary to either protect the public or punish the offender; (2) the
sentences would not be disproportionate to the offense committed; and (3) one of
the factors in R.C. 2929.14(C)(4)(a), (b), or (c) applies. Id.; Id.
{¶13} The trial court must state the required findings at the sentencing
hearing prior to imposing consecutive sentences and incorporate those findings
into its sentencing entry. State v. Sharp, 3d Dist. Putnam No. 12-13-01, 2014-
Ohio-4140, ¶ 50, citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, ¶
29. A trial court “has no obligation to state reasons to support its findings” and is
not “required to give a talismanic incantation of the words of the statute, provided
that the necessary findings can be found in the record and are incorporated into the
sentencing entry.” Bonnell at ¶ 37.
{¶14} Eager concedes that the trial court made the three statutorily required
findings before imposing consecutive sentences at the sentencing hearing and
incorporated those findings into its sentencing entry. Specifically, at the
sentencing hearing, the trial court said:
Now I’ve looked at all those factors and it is fair to say that I do
deem the consecutive sentences are appropriate. It is necessary to
protect the public from future crime and to punish the offender and
that consecutive sentences are not disproportionate to the seriousness
-6-
Case No. 7-15-02
of the offenders [sic] conduct. This was a small child, this was an
innocent child and the danger that you pose to the public because
you were in a position of trust, it would be very easy for someone to
trust you again. The Court would further find that the offenses were
committed as part of a course of conduct and the harm caused by
these multiple offenses was so great and unusual that no single
prison term for any of the offenses committed is part of the course of
conduct adequately reflects the seriousness of the offenders conduct.
I don’t find that the sentence that I am about it impose is
disproportionate given the conduct.
(Feb. 20, 2015 Tr. at 12-13). The trial court incorporated its findings into its
sentencing entry. (See Doc. No. 17). Therefore, the trial court made the
appropriate R.C. 2929.14(C)(4) findings before imposing consecutive sentences.
{¶15} However, Eager argues that his sentence is clearly and convincingly
contrary to law because the record does not support the findings the trial court
used to justify the imposition of consecutive sentences—that is, Eager argues that
the trial court’s imposition of consecutive sentences was improper because there is
no evidence in the record that the victim’s harm was great or unusual. While a
trial court is not required to state reasons in support of its R.C. 2929.14(C)(4)
findings, an appellate court may take action if the record clearly and convincingly
-7-
Case No. 7-15-02
does not support the trial court’s findings under R.C. 2929.14(C)(4). See Bonnell
at ¶ 37. See also R.C 2953.08(G)(2)(a).
{¶16} In support of his argument that the record does not support his
sentence, Eager points to a portion of the dissenting opinion in State v. Hale. 3d
Dist. Marion No. 9-13-17, 2014-Ohio-262 (Rogers, J., concurring in part and
dissenting in part). In particular, Eager relies on that portion of the dissenting
opinion in Hale to argue that the trial court erred in imposing consecutive
sentences because the trial court did not make separate and distinct findings under
R.C. 2929.14(C)(4). See id. at ¶ 39. Eager avers that the trial court’s findings
were not separate and distinct because, similar to Hale, there is no victim-impact
statement and “nothing in the record that suggests that [Eager’s] activity has led to
counseling, or any specific emotional complications” for the victim. (Appellant’s
Brief at 4); Hale at ¶ 43.
{¶17} Eager’s argument is meritless. First, not only does Eager solely rely
on a portion of a dissenting opinion in support of his argument, but his reliance on
that opinion is misplaced. The portion of the dissenting opinion in Hale on which
Eager relies avers that the trial court’s imposition of consecutive sentences was
improper because the trial court relied on evidence outside of the record to
conclude that Hale’s conduct resulted in a great or unusual harm. That is not the
case here. At the sentencing hearing, unlike the defendant in Hale, Eager agreed
-8-
Case No. 7-15-02
that the victim suffered “emotional stress” from Eager’s conduct. See Hale at ¶
42; (Feb. 20, 2015 Tr. at 7). Yet, on appeal, Eager argues that the trial court
improperly assumed that the victim endured psychological harm as a result of
Eager’s conduct. Eager cannot now argue that the trial court improperly made that
assumption. See State v. Boles, 2d Dist. Montgomery No. 20730,
2005-Ohio-4490, ¶ 32 (concluding that the defendant’s “attempt to make the exact
opposite argument on appeal” than he made to the trial court was without merit);
State v. Blanton, 184 Ohio App.3d 611, 2009-Ohio-5334, ¶ 10 (10th Dist.)
(“Appellant may not stipulate at trial that he was required to provide notice and
thereafter argue on appeal that he was not required to provide notice.”).
{¶18} Moreover, Eager appears to suggest that there must be a victim-
impact statement in the record for the trial court to conclude that a child victim of
a sexually based offense suffered psychological harm. R.C. 2947.051 governs
victim impact statements and provides:
(A) In all criminal cases in which a person is convicted of or pleads
guilty to a felony, if the offender, in committing the offense, caused,
attempted to cause, threatened to cause, or created a risk of physical
harm to the victim of the offense, the court, prior to sentencing the
offender, shall order the preparation of a victim impact statement * *
*.
-9-
Case No. 7-15-02
R.C. 2947.051(A). “‘The purpose of the [victim impact] statement is to inform the
court about any economic loss and physical injury suffered by the victim as a
result of the offense and to provide other information about the impact of the
offense upon the victim.’” State v. Sealey, 11th Dist. Lake No. 2002-L-100,
2003-Ohio-6697, ¶ 59, quoting State v. Garrison, 123 Ohio App.3d 11, 16-17 (2d
Dist.1997), citing, R.C. 2947.051(B). The victim impact statement must be
considered by the trial court in sentencing the defendant. “A trial court’s error in
failing to order a victim impact statement is not reversible, absent an affirmative
demonstration of prejudice to the appellant.’” Id., citing State v. Patterson, 110
Ohio App.3d 264, 269 (10th Dist.1996), citing State v. Penix, 4th Dist. Scioto No.
90CA1887, 1991 WL 224180, *5 (Oct. 23, 1991).
{¶19} Eager did not object to the trial court’s failure to order a victim
impact statement; therefore, the trial court’s failure to order the statement must
constitute plain error. State v. Shaffner, 12th Dist. Madison No. CA2002-07-012,
2003-Ohio-3872, ¶ 7. “Crim.R. 52(B) provides that ‘[p]lain errors or defects
affecting substantial rights may be noticed although they were not brought to the
attention of the court.’” Id., quoting Crim.R. 52(B). “For there to be plain error
under Crim.R. 52(B), the trial court must have deviated from a legal rule, the error
must have been an obvious defect in the proceeding, and the error must have
affected a substantial right.” State v. Bagley, 3d Dist. Allen No. 1-13-31,
-10-
Case No. 7-15-02
2014-Ohio-1787, ¶ 55, citing State v. Barnes, 94 Ohio St.3d 21, 27 (2002).
“Generally, ‘[n]otice of plain error under Crim.R. 52(B) is to be taken with the
utmost caution, under exceptional circumstances and only to prevent a manifest
miscarriage of justice.’” Shaffner at ¶ 7, quoting State v. Long, 53 Ohio St.2d 91
(1978), paragraph three of the syllabus.
{¶20} The trial court’s failure to order a victim impact statement under R.C.
2947.051 does not amount to plain error. Eager failed to demonstrate how the trial
court’s failure to order a victim impact statement affected his substantial rights.
Although Eager argues that the record does not contain any evidence that the
victim suffered emotional complications as a result of his actions to support the
trial court’s finding under R.C. 2929.14(C)(4)(b), Eager conceded at the
sentencing hearing, as we noted above, that the victim suffered emotional stress as
a result of his actions. Eager makes no further argument how a victim impact
statement would have mitigated his crimes. See Shaffner at ¶ 8 (“Victim impact
statements generally work to the prosecution’s benefit and the criminal
defendant’s detriment.”); Sealey at ¶ 62 (concluding that the defendant failed to
show prejudice because “the preparation of victim impact statements in this case
would have added little, if any, value to the sentencing proceeding besides expense
and delay”), citing Garrison at 17. Therefore, it was not plain error for the trial
court to fail to order a victim impact statement under R.C. 2947.051.
-11-
Case No. 7-15-02
{¶21} Instead, it is clear from the record that Eager’s offenses were
committed as part of a course of conduct, which resulted in great or unusual harm.
See, e.g., Hale at ¶ 23; State v. Hawkins, 2d Dist. Greene No. 2014-CA-6, 2014-
Ohio-4960, ¶ 12. Eager was originally indicted on seven third-degree felonies,
each carrying a possible five years of imprisonment, for a total possible sentence
of 35 years. The conduct underlying each count of the indictment involved Eager
placing “his hand in [the] pants and underwear, [and] then rubb[ing] the vagina” of
the eight-year-old daughter of his girlfriend with whom Eager shared a home.
(PSI at 3). At the time Eager committed the conduct, he was in a position of trust
and authority over his victim. (Id.). Furthermore, unlike Hale, Eager did not
challenge the contents of the PSI report. Therefore, the trial court did not err in
concluding that Eager’s conduct was part of a course of conduct that resulted in
great or unusual harm, and Eager failed to clearly and convincingly demonstrate
that his sentence is unsupported by the record or contrary to law.
{¶22} Eager’s assignment of error is overruled.
{¶23} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI, J., concurs in Judgment Only.
-12-
Case No. 7-15-02
ROGERS, P.J., dissents.
{¶24} Although the trial court made the mandatory findings to impose
consecutive sentences, the record is devoid of any evidence that supports a finding
of great or unusual harm. Therefore, I must respectfully dissent.
{¶25} To impose consecutive sentences upon a defendant, the trial court
must find “that the consecutive service is necessary to protect the public from
future crime or to punish the offender and that consecutive sentences are not
disproportionate to the seriousness of the offender’s conduct and to the danger the
offender poses to the public[.]” R.C. 2929.14(C)(4). In addition, the trial court
must also find that one of the following three additional factors is met:
(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.
(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.
(Emphasis added.) R.C. 2929.14(C)(4)(a)-(c).
{¶26} In sentencing Eager, the trial court stated:
-13-
Case No. 7-15-02
Now I’ve looked at all those factors and it is fair to say that I do
deem the consecutive sentences are appropriate. It is necessary to
protect the public from future crime and to punish the offender and
that consecutive sentences are not disproportionate to the seriousness
of the offenders [sic] conduct. * * * The Court would further find
that the offenses were committed as part of a course of conduct and
the harm caused by these multiple offenses was so great and unusual
that no single prison term for any of the offenses committed is part
of the course of conduct adequately reflects the seriousness of the
offenders (sic) conduct. I don’t find that the sentence that I am
about to impose is disproportionate given the conduct.
Sentencing Tr., p. 12-13. The relevant factor at issue here is R.C.
2929.14(C)(4)(b). Therefore, the State was required to present evidence that the
harm caused to the victim was so great or unusual as to require consecutive
sentences.
{¶27} It is clear from the transcript that the trial court regurgitated the
statutory language of R.C. 2929.14(C)(4). Nonetheless, there is no evidence in the
record to support the conclusion that the victim’s harm was great or unusual under
R.C. 2929.14(C)(4)(b). No witnesses testified, and no victim impact statement
was ever filed. Compare State v. Nesser, 5th Dist. Licking No. 02CA103, 2005-
Ohio-4313, ¶ 19 (finding that consecutive sentences were properly imposed where
the victim was three years old and the mother of the victim testified at the
sentencing hearing regarding the psychological harm experienced by the victim).
Although the State suggested that the victim’s harm was “exacerbated” due to her
-14-
Case No. 7-15-02
young age, a prosecutor’s statements are not evidence. See State v. Nagy, 8th Dist.
Cuyahoga No. 90400, 2008-Ohio-4703, ¶ 29.
{¶28} The majority relies on Eager’s counsel’s statement at the sentencing
hearing that the victim suffered “emotional stress” from Eager’s conduct.
(Majority Opin., ¶ 17); Sentencing Tr., p. 7. Nothing is unusual about a claim of
emotional stress. Certainly every victim of a sexual crime exhibits some sort of
emotional stress, albeit in different degrees. Emotional stress is not unusual in
these types of cases, but it can be great. However, this court has no way of
knowing the extent of the victim’s psychological harm due to the State’s failure to
present any evidence at the sentencing hearing. A court is not permitted to assume
great or unusual harm without any evidence to support it. See State v. Hale, 3d
Dist. Marion No. 9-13-17, 2014-Ohio-262, ¶ 45 (Rogers, J., concurring in part and
dissenting in part).
{¶29} While I agree that Eager’s conduct is reprehensible and that it created
the potential for great or unusual harm, there is simply no evidence in the record
that great or unusual harm resulted from Eager’s actions . See State v. Bruce, 4th
Dist. Washington No. 02CA51, 2003-Ohio-4081, ¶ 21. The State cannot say that
by simply violating the statute, the harm was automatically great or unusual. See
Hale at ¶ 41 (Rogers, J., concurring in part and dissenting in part).
-15-
Case No. 7-15-02
{¶30} Since the record is devoid of any evidence that the victim’s harm was
great or unusual, the sentence is NOT supported by the record and the trial court
erred by imposing consecutive sentences. See id. at ¶ 45; State v. Snyder, 3d Dist.
Seneca No. 13-12-38, 2013-Ohio-2046, ¶ 39. Therefore, the imposition of
consecutive sentences in this case was contrary to law and an abuse of discretion.
I would sustain Eager’s assignment of error and reverse the judgment of the trial
court.
/jlr
-16-