State v. Square

[Cite as State v. Square, 2018-Ohio-4574.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, :
CASE NO. 2017-L-145
- vs - :

DAMIAN J. SQUARE, :

Defendant-Appellant. :

Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2016 CR
001217.

Judgment: Affirmed.

Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant
Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
Painesville, OH 44077 (For Plaintiff-Appellee).

Brian A. Smith, Brian A. Smith Law Firm, LLC, 755 White Pond Drive, Suite 403,
Akron, OH 44320 (For Defendant-Appellant).

CYNTHIA WESTCOTT RICE, J.

{¶1} Appellant, Damian Square, appeals from the judgment entered by the

Lake County Court of Common Pleas, after trial by jury, convicting him of gross sexual

imposition, a felony of the third degree, and illegal use of a minor in nudity-oriented

material or performance, a felony of the second degree. We affirm.

{¶2} This prosecution emanated from allegations of sexual abuse made by a

minor, S.S., against appellant. Prior to the allegations, appellant resided with then
eight-year-old S.S., her brother, then 12-year-old J.D.M.S., and her mother, Amber

Jenkins, in an apartment located in Fairport Harbor, Ohio. Appellant moved in with Ms.

Jenkins and her children after a breakup with the children’s father, Justin Spiesman.

Ms. Jenkins testified she knew appellant for approximately three years prior to the

accusations and had commenced dating about a month after they met.

{¶3} Appellant and the children seemed to bond. Appellant played catch and

video games with J.D.M.S. and took the children off-roading on at least one occasion.

He purchased Christmas gifts for them and, in the summer, along with Ms. Jenkins, took

the children kayaking on various occasions.

{¶4} Ms. Jenkins was required to attend three A.A. meetings per week and,

because S.S. and J.D.M.S. did not always get along, appellant would watch the children

while she was out. During these times, J.D.M.S. would typically remain in his room

playing video games, while appellant would watch movies with S.S. in his and Ms.

Jenkins’ bedroom.

{¶5} Over time, S.S. began to spend more time with appellant and Ms. Jenkins

noticed a change in S.S.’ relationship with appellant. She became uncomfortable seeing

the way in which appellant and S.S. would “cuddle” together. Meanwhile, appellant’s

and Ms. Jenkins’ relationship was deteriorating. They began arguing more frequently

and, on December 29, 2015, the couple had an explosive argument after which

appellant threw his phone into the wall and stormed out of the apartment. Later on, as

Ms. Jenkins was putting S.S. to bed, the girl shared “a secret” with her. S.S. disclosed

appellant had been sexually abusing her. Ms. Jenkins immediately became emotional

and frantic.

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 {¶6} Ms. Jenkins contacted the children’s aunt, Jessica Smith, and asked her

to come over. Ms. Smith subsequently contacted the children’s father, Mr. Spiesman,

who also came to the apartment. Ms. Smith ultimately took the children to her home

and Mr. Spiesman stayed at the apartment talking with Ms. Jenkins. They eventually

made contact with appellant and advised him they were aware of the sexual abuse.

Appellant denied the allegations.

{¶7} The following morning, Mr. Spiesman discussed the allegations with S.S.

to make sure she was not fabricating them. He emphasized the abuse claims are very

serious and would affect appellant for the rest of his life. Later that day, Ms. Jenkins

took her daughter to the Fairport Harbor Police Department. A Fairport Harbor police

officer accompanied Ms. Jenkins to her apartment and appellant’s laptop computer was

found under the couple’s bed. The laptop was examined by, Jamie Walsh, a digital

forensic examiner at the Lake County Crime Laboratory. Mr. Walsh isolated 20 images

on appellant’s laptop, which were later identified by Ms. Jenkins as photographs of S.S.

in partial states of nudity, including photos which focused upon the child’s private parts.

The metadata from the images provided the dates that the photographs were taken by

an LG smartphone; Ms. Jenkins, as well as J.D.M.S., stated appellant had an LG

smartphone. Mr. Walsh noted that the images could have been transferred from the LG

smartphone to the computer by simply plugging the phone into the computer.

{¶8} The metadata on the images also revealed the photographs were taken

on March 25, 2015, between 6:06 a.m. and 6:10 a.m. and on April 1, 2015 at 2:41 a.m.

and 2:42 a.m. and between 5:41 and 5:44 a.m. Given his job, appellant regularly awoke

before Ms. Jenkins, J.D.M.S., and S.S. And, according to S.S., on one occasion, she

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could not recall the date, she awoke in appellant’s bed and discovered him

photographing her private area. She claimed she was “weirded out” by the episode, but

appellant allegedly assured her he would delete the picture(s).

{¶9} S.S. also recalled, on an unnamed date, she needed to use the restroom,

but appellant was in the shower. She knocked and appellant gave her permission to

enter. While S.S. was on the toilet, appellant pulled back the shower curtain and

exposed himself to the child. The child left the bathroom embarrassed. Later that

evening, when Ms. Jenkins was at an A.A. meeting, S.S. claimed that appellant invited

her into his bedroom to watch a movie. Again, appellant exposed himself to the child.

He then demonstrated how S.S. could make a circle with her hand and move it up and

down on his penis. According to S.S., this activity occurred on multiple occasions. And

the sexual activity expanded later to fellatio, cunnilingus, and appellant touching the

child’s vaginal area. She testified appellant used saliva on his fingers before touching

her. While describing these episodes, S.S. identified what she designated a “fatty

deposit” of skin the appeared at the base of appellant’s penis. She asserted she had

observed the skin many times during the course of the abuse; she denied seeing the

skin when appellant exposed himself in the shower and also denied that her mother had

ever disclosed this feature of appellant’s anatomy. Investigators later confirmed

appellant had the feature described by S.S.

{¶10} Appellant denied all allegations made by S.S. He maintained they had a

fine, albeit sometimes troubled relationship; appellant specifically acknowledged they

had certain conflicts over S.S.’ refusal to do homework, chores, or clean up after

herself. S.S. also stated she was angry with appellant because, during fits of anger, he

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threw his cell phone and allegedly kicked the walls of the apartment. Moreover, S.S.

stated she was afraid of appellant because he had struck Ms. Jenkins when they were

on vacation. According to appellant, these conditions, combined with evidence that S.S.

could have been exposed to pornography and other sexual matters from other sources,

provided an alternative explanation to S.S.’ allegations.

{¶11} As a result of S.S.’ claims, appellant was indicted on four counts of rape,

felonies of the first degree, in violation of R.C. 2907.02(A)(1)(B); four counts of gross

sexual imposition, felonies of the third degree, in violation of R.C. 2907.05(A)(4); one

count of illegal use of a minor in nudity-oriented material, a felony of the second degree,

in violation of R.C. 2907.323(A)(1); and one count of possessing criminal tools, a felony

of the fifth degree, in violation of R.C. 2923.24(A), with a forfeiture specification.

{¶12} Prior to trial, the state moved to amend the indictment and dismiss three of

the four counts of rape, and three of the four counts of gross sexual imposition, along

with the sole count of possession of criminal tools; and to change the date on the

remaining counts of rape and gross sexual imposition to encompass the time period

from November 1, 2014 to December 29, 2015. The motion was granted.

{¶13} The matter proceeded to trial by jury after which appellant was acquitted

on the sole count of rape and convicted on the remaining counts of gross sexual

imposition and illegal use of a minor in nudity-oriented material. Following a sentencing

hearing, appellant was sentenced to a total of 60 months in prison on the gross sexual

imposition charge and eight years in prison on the charge of illegal use of a minor in

nudity-oriented material. The court ordered the sentences be served consecutively, for

an aggregate term of 13 years imprisonment.

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 {¶14} Appellant now appeals and assigns three errors. His first assignment of

error provides:

{¶15} “The trial court’s decision to allow testimony from Justin Spiesman that,

inter alia, ‘she [S.S.] told me everything she told was the truth,’ and that this statement

was made after Spiesman testified that he told her that ‘this wasn’t something to be

joking about’ and that if she wasn’t telling the truth, it ‘could ruin this man’s life * * * and

it would stick with him’ was an abuse of discretion.”

{¶16} Under this assignment of error, appellant asserts his right to due process

was violated when Mr. Spiesman testified to S.S.’ prior consistent statement in violation

of Evid.R. 801(D)(1)(b). Appellant contends there was no prior challenge to S.S.’

credibility at the time when Mr. Spiesman testified and, as a result, the statement was

inadmissible hearsay. In response, the state does not attempt to defend the

admissibility of Mr. Spiesman’s testimony by recourse to Evid.R. 801(D)(1)(b); indeed,

the state concedes the statement was improper. Nevertheless, the state emphasizes

defense counsel did not specifically object to the statement and, because it was an

isolated incident of improper hearsay, the admission of the testimony does not rise to

the level of plain error.

{¶17} At trial, Mr. Spiesman, S.S.’ father, testified regarding the contact he had

with S.S. on the morning after she disclosed the abuse to her mother. The following

exchange between the prosecutor and Mr. Spiesman is germane to the instant issue:

{¶18} Q. All right. And at some point in time you left [Ms. Jenkins’
residence]; where did you go?

{¶19} A. Back to my house.

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{¶20} Q. All right. Now when you went back to your house with your
sister did you have any contract with your daughter?

{¶21} A. I made sure they were sleeping and all right and covered up or
whatnot and then I went back, they were sleeping by that time.

{¶22} Q. And by they you mean [S.S.] and [J.D.M.S]?

{¶23} A. Yes.

{¶24} Q. And the following morning did you have any contact with your
daughter [S.S.]?

{¶25} A. Yes.

{¶26} Q. All right. And do you remember where that contact took place?

{¶27} A. First it was at my sister’s main house and then we went back
into where I was staying and talked a bit.

{¶28} Q. All right. And what was the reason you had a talk with her?

{¶29} A. To get to the bottom of what happened.

{¶30} Q. All right. And we can’t talk about what [S.S.] said but what did
you tell her at that time?

{¶31} A. I told her that, you know, if that this was a story or anything that
she - -

{¶32} [DEFENSE COUNSEL:] Objection.

{¶33} THE COURT: Overruled. You can continue.

{¶34} A. That she needed to, if this, that this wasn’t if it was something
that turned out didn’t happen or didn’t happen the way she said that
she could ruin this man’s life for the rest, his reputation and it would
stick with him and she told me everything she told was the truth.

{¶35} Q. Well, what was your tone when you talked to her about this?

{¶36} A. It was a serious, I wanted her to know that I was serious, this
isn’t just something you just say about anybody.

{¶37} Q. And was she listening to you?

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 {¶38} A. Yes. (Emphasis added).

{¶39} Appellant’s argument focuses upon Mr. Spiesman’s answer which

included the hearsay statement of S.S. Defense counsel objected prematurely,

anticipating the possibility of hearsay. He did not, however, object after Mr. Spiesman’s

hearsay testimony. The failure to object to the introduction of hearsay evidence waives

all claims save plain error. See e.g. State v. Santiago, 10th Dist. Franklin No. 02AP-

1094, 2003-Ohio-2877, ¶11. Pursuant to Crim.R. 52(B), a plain error is a defect

affecting substantial rights that may be noticed even if the trial court did not pass upon

the issue. See e.g. State v. Long, 53 Ohio St.2d 91, 94 (1978). Plain error may be

invoked only in exceptional circumstances to avoid a miscarriage of justice. Id. at 95.

The rule is that an error to which no objection has been interposed will not be

recognized “unless, but for the error, the outcome of the trial clearly would have been

otherwise.” Id. at 97. In order for Crim.R. 52(B) to apply, a reviewing court must find that

(1) there was an error, i.e., a deviation from a legal rule; (2) that the error was plain, i.e.,

that there was an obvious defect in the trial proceedings; and (3) that the error affected

substantial rights, i.e., affected the outcome of the trial. State v. Barnes, 94 Ohio St.3d

21, 27 (2002).

{¶40} “‘Hearsay’ is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” Evid.R. 801(C). As noted above, the state concedes Mr. Speisman’s

testimony was hearsay. Hence, we need not address appellant’s preemptive claim that

Evid.R. 801(D)(1)(b), governing prior consistent statements, is an inapplicable exception

to the general rule against hearsay. “[I]n general, ‘the improper admission of a single

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hearsay statement may be considered “harmless” error.’” State v. Deaton, 2d Dist.

Montgomery No. 27181, 2017-Ohio-7094, ¶10, quoting State v. Butcher, 170 Ohio

App.3d 52, 2007-Ohio 118, ¶78 (11th Dist.). In Butcher, this court further observed that

the foregoing is “especially true when the victim directly testifies to the alleged events.”

Id.

{¶41} We first point out appellant contends Mr. Spiesman’s hearsay testimony

was an attempt to bolster S.S.’ allegations and testimony. The record does not support

this claim. The prosecutor specifically cautioned, if not forbade, Mr. Spiesman from

relating the information S.S. shared with him when he approached her about the

allegations. The prosecutor advised Mr. Spiesman to testify only to what he told S.S.

Accordingly, although the testimony is inadmissible hearsay, it must be framed as

“unsolicited” or, perhaps “unexpected” hearsay. Thus, we do not agree that the

prosecutor had the specific intent to bolster S.S.’ credibility when the hearsay statement

was uttered.

{¶42} We recognize S.S.’ credibility was an issue, both directly and indirectly.

On cross-examination of S.S., defense counsel highlighted that, prior to making the

accusations, she was “kind of mad” at appellant for his actions when he lost his temper,

e.g., throwing a phone at the wall, kicking the wall, and her concern that he might hit

her, even though he had never done so, because he struck Ms. Jenkins on vacation.

These points underscored that S.S. could have had a vengeful motive for making the

allegations. Moreover, Ms. Jenkins noted that S.S. had a history of not being truthful.

In particular, she asserted S.S. would say she finished her homework or cleaned her

room when, in fact, she had not.

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 {¶43} That said, S.S. testified at trial and detailed the various incidences of

sexual abuse upon which the charges were premised, including inappropriate touching,

fellatio, and cunnilingus. She also provided specific details of the abuse, the manner in

which the abuse occurred, and unusual features of appellant’s private area, e.g., the

growth on his genitals and the manner in which he groomed himself, which were

independently confirmed by other evidence. The jury heard the foregoing, acquitted

appellant of rape, but found him guilty of the two remaining charges. Viewing the

evidence in its totality, we fail to discern how the admission of isolated Mr. Spiesman’s

hearsay statement affected appellant’s substantial rights. We therefore conclude

admitting the same was not plain error.

{¶44} Appellant’s first assignment of error is without merit.

{¶45} Appellant’s second assignment of error provides:

{¶46} “Appellant’s convictions were against the manifest weight of the evidence.”

{¶47} A court considering a challenge to the manifest weight of the evidence

reviews the entire record, weighs the evidence and all reasonable inferences, considers

the credibility of the witnesses and determines whether, in resolving 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 for a new trial. State v. Swiggett, 11th Dist.

Trumbull No. 2017-T-0003, 2017-Ohio-8203, ¶10, citing State v. Schlee, 11th Dist. Lake

No. 93-L-082, 1994 WL 738452, *5 (Dec. 23, 1994).

{¶48} First, appellant was convicted of gross sexual imposition, in violation of

R.C. 2907.05(A)(4), which provides:

{¶49} (A) No person shall have sexual contact with another, not the
spouse of the offender; cause another, not the spouse of the

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 offender, to have sexual contact with the offender; or cause two or
more other persons to have sexual contact when any of the
following applies:

{¶50} * * *

{¶51} (4) The other person, or one of the other persons, is less than
thirteen years of age, whether or not the offender knows the age of
that person.

{¶52} “‘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).

{¶53} It is undisputed S.S. was under the age of 13 years old during the relevant

time period. And evidence was offered, through S.S.’ direct testimony, that appellant

touched her genitals and/or pubic region on multiple occasions. And, during these

occasions, she testified appellant made moaning noises and/or was physically and

visibly sexually aroused. Appellant maintains, however, S.S.’ allegations and testimony

were not necessarily credible. He underscores there was no physical evidence that he

sexually abused S.S. In his view, the lack of physical evidence fundamentally

undermines S.S.’ allegations.

{¶54} Appellant further contends there were alternative explanations regarding

why S.S. had the sexual knowledge and lexicon to provide such detail to her

allegations. Appellant testified that Ms. Jenkins used saliva to lubricate either herself or

him during sexual activity and that S.S. was nearby when this occurred. Moreover,

appellant claims Ms. Jenkins would play a video game, Grand Theft Auto, which

contained sexual material such as sexual encounters with prostitutes. And, Ms.

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Jenkins’ brother would speak to him and Ms. Jenkins about his sex life within S.S.’

earshot.

{¶55} Appellant additionally argues S.S.’ allegations lacked credibility due to her

purportedly troubled relationship with him and her fear of him. These points, in his view,

permit the reasonable inference that S.S. had a vendetta against him and had reason to

fabricate the allegations.

{¶56} While appellant’s points may militate, to some extent, in his favor, they do

not negate the force of S.S.’ testimony, as well as the evidence that pornographic

pictures of a child identified as S.S. were discovered in his personal computer. This

latter point provides a foundation of the charge of use of a minor nudity-oriented

material; nevertheless, it is also circumstantially probative of the sexually inappropriate

and abusive relationship at the heart of the gross-sexual-imposition charge.

{¶57} Furthermore, the lack of any physical evidence of sexual abuse does not

negate or weigh heavily against the verdict. Julie Loyke, a certified pediatric nurse

practitioner employed at Rainbow Babies and Children’s Hospital in the Care Clinic,

testified that examinations outside of 96 hours after a sexual assault generally reveal no

indication of injury. S.S.’ examination occurred some six weeks after she disclosed the

abuse. And, regardless, appellant was convicted of gross sexual imposition, which

requires “sexual contact,” i.e., any “touching of an erogenous zone.” Such contact

would not generally reveal the trauma associated with a sexual assault.

{¶58} Moreover, in addition to meeting the fundamental elements of gross

sexual imposition, S.S. testified appellant had subjected her to fellatio and cunnilingus.

Although he was acquitted of rape, S.S. testified to the circumstances of these

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allegations, which provided greater detail of S.S.’ knowledge of appellant’s anatomy and

a first-hand account of how appellant commenced the abuse. Such details add to the

credibility of her claim that appellant engaged in sexual contact with her. For instance,

S.S. asserted appellant exposed himself to her while in the shower and assured her

there was nothing wrong with doing so. S.S. also testified that, later that evening, while

watching a movie, appellant exposed himself to her, then “made a circle with his hand

and he was going up and down.” It was during this initial episode that, according to S.S.,

appellant advised her to touch his privates and mimic his movements.

{¶59} S.S. additionally testified that, in the course of the abuse, appellant would

groom his genitals in different ways; a fact corroborated by Ms. Jenkins. And the state

established, through police testimony, that appellant had a skin growth on the side of his

penis. S.S. identified the growth and testified she had touched it on various occasions

during the course of the abuse. She also testified she had this knowledge first hand

and had not been informed by another source of its existence.

{¶60} The jury heard appellant’s alternative explanations for S.S.’ allegations

and, in weighing them against S.S.’ detailed testimony, found the child more credible.

We cannot say the jury lost its way in drawing its conclusion.

{¶61} Next, appellant was convicted of illegal use of a minor in nudity-oriented

material or performance, in violation of R.C. 2907.323(A)(1). That subsection provides,

in relevant part:

{¶62} (A) No person shall do any of the following:

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 {¶63} (1) Photograph any minor who is not the person’s child or ward in a state

of nudity, or create, direct, produce, or transfer any material or performance that shows

the minor in a state of nudity, unless both of the following apply:

{¶64} (a) The material or performance is, or is to be, sold, disseminated,
displayed, possessed, controlled, brought or caused to be brought
into this state, or presented for a bona fide artistic, medical,
scientific, educational, religious, governmental, judicial, or other
proper purpose, by or to a physician, psychologist, sociologist,
scientist, teacher, person pursuing bona fide studies or research,
librarian, member of the clergy, prosecutor, judge, or other person
having a proper interest in the material or performance;

{¶65} (b) The minor’s parents, guardian, or custodian consents in writing
to the photographing of the minor, to the use of the minor in the
material or performance, or to the transfer of the material and to the
specific manner in which the material or performance is to be used.

{¶66} We first point out that subsections (a) and (b) do not apply to this case and

thus the facts of this case do not fit within the statutory exception. With that in mind,

appellant argues that his conviction is against the manifest weight of the evidence

because state’s digital forensic expert, Jamie Walsh, could not identify the victim nor

could he identify whose fingers were shown in some of the photos. Notwithstanding the

foregoing, S.S. testified that, on one occasion, she was awakened and observed

appellant taking photographs of, inter alia, her private area. Further, Ms. Jenkins

identified the individual in the photos discovered in appellant’s computer as S.S. And,

after the images were removed from appellant’s laptop, Mr. Walsh testified the

metadata from the images indicated they were taken by a LG smartphone, the brand of

phone appellant owned at the relevant time period. The state set forth sufficient,

credible evidence that appellant, who was not S.S.’ parent or guardian, photographed

the child and transferred the same to his computer in a state of nudity, i.e., depictions of

14
the child engaged in lewd exhibitions as well as depictions of the child that graphically

focused on the child’s genitals. See State v. Young, 37 Ohio St.3d 249 (1988),

paragraph one of the syllabus. (Construing and limiting what constitutes “nudity” under

R.C. 2907.323 to avoid unconstitutionally overbroad application.) Accord State v.

Tooley, 114 Ohio St.3d 366, 2007-Ohio-3968, ¶16. We therefore hold each element of

illegal use of a minor in nudity-oriented material was proven beyond a reasonable

doubt.

{¶67} Appellant’s second assignment of error lacks merit.

{¶68} Appellant’s third assignment of error provides:

{¶69} “Appellant’s sentence was not supported by the record.”

{¶70} Under his final assignment of error, appellant claims the trial court erred

when it sentenced him to 13-years imprisonment. He maintains the record does not

clearly and convincingly support the sentence.

{¶71} We generally review felony sentences under the standard of review set

forth in R.C. 2953.08(G)(2), which states:

{¶72} The court hearing an appeal under division (A), (B), or (C) of this section

shall review the record, including the findings underlying the sentence or modification

given by the sentencing court.

{¶73} The appellate court may increase, reduce, or otherwise modify a
sentence that is appealed under this section or may vacate the
sentence and remand the matter to the sentencing court for
resentencing. The appellate court's standard for review is not
whether the sentencing court abused its discretion. The appellate
court may take any action authorized by this division if it clearly and
convincingly finds either of the following:

{¶74} (a) That the record does not support the sentencing court's findings
under division (B) or (D) of section 2929.13, division (B)(2)(e) or

15
 (C)(4) of section 2929.14, or division (I) of section 2929.20 of the
Revised Code, whichever, if any, is relevant;

{¶75} (b) That the sentence is otherwise contrary to law.

{¶76} Appellate courts “‘may vacate or modify any sentence that is not clearly

and convincingly contrary to law’” only when the appellate court clearly and convincingly

finds that the record does not support the sentence. State v. Wilson, 11th Dist. Lake

No. 2017-L-028, 2017-Ohio-7127, ¶18, quoting State v. Marcum, 146 Ohio St.3d 516,

2016-Ohio-1002, ¶23.

{¶77} The Ohio Supreme Court has held, R.C. 2929.11 and R.C. 2929.12 do not

require judicial fact-finding. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, ¶42;

State v. Macko, 11th Dist. Lake No. 2016-L-022, 2017-Ohio-253, ¶75. “Rather, in

sentencing a defendant for a felony, a court is merely required to consider the purposes

and principles of sentencing in R.C. 2929.11 and the statutory * * * factors in R.C.

2929.12.” Macko, supra, citing Foster, supra.

{¶78} Further, the Ohio Revised Code provides, in relevant part, as follows

regarding consecutive felony sentences:

{¶79} If multiple prison terms are imposed on an offender for convictions
of multiple offenses, the 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 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:

{¶80} (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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 {¶81} (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.

{¶82} (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).

{¶83} Appellant maintains that because he had no criminal history, beyond traffic

violations and had no drug or alcohol issues, the trial court’s sentence was not

supported by clear and convincing evidence. We do not agree.

{¶84} At the sentencing hearing, the trial court made the following statements

and findings on record:

{¶85} I’ve considered the statutes relating to the overriding principles and
purposes of felony sentence in 2929.11. Also considered the
seriousness and recidivism factors in 2929.12(B) through (E) and
under factors that make this more serious under (B) the injury was
exacerbated by the age of the victim who was 8. Also the victim
suffered serious physical and psychological harm. In addition, the
defendant held a position of trust as it relates to [S.S.], he was
living there and was what I would refer to as a father figure and by
virtue of that he was able to take advantage of that and committed
the offenses that he was convicted of and that relationship
facilitated these offenses.

{¶86} Under less serious I don’t find any applicable.

{¶87} Under factors that indicate recidivism is more likely I don’t have the
slightest idea whether there is any remorse so I certainly cannot
find there is any genuine remorse.

{¶88} Under less likely there is no juvenile record or convictions and an
indication he’s led a law-abiding life.

{¶89} There is without doubt physical harm to [S.S]. This is a sex
offense. Now I know in the presentence report Mr. Square says he
did not commit the crime that he was convicted of, the jury
determined otherwise as to Counts 2 and 3 and I sat here, I

17
 listened to all the evidence and this and this was all revealed on
December 30th of ’15. And my recollection is Mr. Square left with
the clothes on his back and virtually nothing more and was gone
until his arrest on January 2, 2017.

{¶90} The photographs were found on his computer and the way the facts
laid out in this case I don’t know any other remotely plausible
explanation other than he took those pictures and transmitted those
to his computer. So there is no question in my mind that you
committed the offenses that you were convicted of. And the victim
was an 8 year old girl.

{¶91} So with regard to Count 2, gross sexual imposition, a felony of the
third degree, I’m going to sentence you to 60 months in Lorain
Correctional. With regard to Count 3, the dissemination charge, I’m
going to sentence you to 8 years in Lorain Correctional.

{¶92} You get credit for 270 days that you already served.

{¶93} And the sentences in Counts 2 and 3 shall run consecutive to one
another for a total of 13 years. And I find that consecutive
sentences are necessary to protect the public from future crime and
to punish the defendant and that that sentence is not
disproportionate to the seriousness of the defendant’s conduct and
the danger that he poses to the public.

{¶94} I also find that these two offenses were committed as part of a
course of criminal conduct and that the harm was so great and
unusual that no single term for any of those offenses adequately
reflects the seriousness of your conduct.”

{¶95} The court thoroughly considered the statutory factors as they related to

the circumstances of this case. The court did not overlook appellant’s lack of a prior

record; it simply did not find his previous “law-abiding” life was sufficient to overcome its

statutory findings. Indeed, it is unclear how appellant’s lack of a criminal history is

directly relevant to the trial court’s consecutive-sentence findings. We find no error in

the trial court’s sentence.

{¶96} Appellant’s final assignment of error is without merit.

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 {¶97} For the foregoing reasons, the judgment of the Lake County Court of

Common Pleas is affirmed.

THOMAS R. WRIGHT, P.J.,

DIANE V. GRENDELL, J.,

concur.

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