State v. Brady

[Cite as State v. Brady, 2019-Ohio-46.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY

STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 27763
:
v. : Trial Court Case No. 2017-CR-392
:
BRANDON A. BRADY : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:

...........

OPINION

Rendered on the 11th day of January, 2019.

...........

MATHIAS H. HECK, JR., by MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662,
Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee

LUCAS W. WILDER, Atty. Reg. No. 0074057, P.O. Box 574, Dayton, Ohio 45409
Attorney for Defendant-Appellant

.............
 -2-

HALL, J.

{¶ 1} Brandon Brady appeals from his conviction on four counts of voyeurism, five

counts of pandering sexually oriented material involving a minor, and fourteen counts of

rape. Brady challenges the trial court’s decisions overruling his motions to suppress

statements that he made to a police officer and video recordings found on a USB drive.

Brady also challenges the 77-year aggregate prison sentence imposed by the trial court

as cruel and unusual punishment and challenges the court’s consecutive-sentence

findings as unsupported by the record.

{¶ 2} We conclude that the trial court did not err by either overruling the

suppression motions or imposing the aggregate prison sentence, and we affirm.

I. Facts and Proceedings

{¶ 3} Around 2:35 a.m. on February 4, 2017, the Huber Heights Police Department

received a report that a sexual assault had occurred at a residence on Rosebury Drive in

Huber Heights. The report said that a seventeen-year-old victim had been given

medication by her father earlier that night that had “knocked her out.” The victim awoke

to find herself naked in bed with her father engaging in intercourse with her. The incident

was reported by the victim’s boyfriend.

{¶ 4} Officer Corey Siegrist was the first to respond, arriving around 2:39 a.m.

When he drove up to the residence, he saw an individual, later identified as Brady,

standing next to the driver’s side door of a car parked in the driveway of the same address

where the sexual assault was reported. Officer Siegrist watched as Brady got into the car,

started the engine, and began to back out. Siegrist pulled up to make contact with Brady

and “begin [his] investigation” of the reported sexual assault. (Tr. 13.) Brady
 -3-

quickly backed his car into the street, directly in front of Siegrist’s cruiser. Officer Siegrist

turned on the cruiser’s overhead lights to initiate a traffic stop for illegal backing.

{¶ 5} Brady immediately stopped, and Officer Siegrist exited his cruiser and

approached the driver’s side window of Brady’s car. Siegrist told Brady why he had

stopped him and asked for Brady’s identification. Officer Siegrist took Brady’s

identification back to his cruiser to run a check on his onboard computer. Brady remained

in his car. By this time, another police officer, Officer Holbrook, had arrived. Siegrist asked

him to watch Brady while Siegrist continued his investigation of the sexual assault report.

{¶ 6} Officer Siegrist knocked on the front door of the house, and a young male

answered the door. Siegrist asked for the victim by name, and she appeared around a

corner. She was upset and crying. Officer Siegrist noticed that she was “unstable” in her

walking. The victim confirmed the allegations in the police report. Officer Siegrist then

went back to talk to Brady, who was still sitting in his car.

{¶ 7} Siegrist asked Brady to step out, telling him that he was a suspect in a sexual

assault allegation. Officer Siegrist told Brady that the police “were just trying to figure

things out, and work through the case.” (Tr. 18.) Standing in the street with Brady, Siegrist

asked him if there was “anything [he] should know about” inside his car. (Id. at 19). Brady

said that he had some prescription medication and a loaded handgun, for which he had

a valid concealed-carry permit. Officer Siegrist asked Brady if he could search the car,

and Brady consented. Officer Kerry Combs, who was also now on the scene, heard Brady

consent to the search.

{¶ 8} Officer Siegrist then began searching the car, while Brady stood by with

Officer Combs. On the front passenger floorboard, Siegrist found a backpack. He took a
 -4-

quick look inside and saw several bottles containing medication prescribed to Brady, the

handgun, and various other items. Officer Siegrist then learned that the detective

assigned to the case, Josh Fosnight, wanted to hold off searching the car until a search

warrant was obtained. Siegrist ended his search, and Brady was put in the back seat of

Officer Combs’s cruiser. Brady was then advised of his Miranda rights. Brady refused to

allow the police to search his house and refused to speak with the police without an

attorney. Brady was allowed to leave the scene around 3:35 a.m., though not in the car

that he had been driving when he was first stopped.

{¶ 9} Later that morning, around 6:00 a.m., a search warrant for Brady’s home and

car was issued. Detective Fosnight searched the backpack that Officer Siegrist had found

in the car and found a USB drive next to the bottles of medication. Fosnight was interested

in the drive’s contents, because he knew that Brady had recorded his sexual activity in

the past; Detective Fosnight had investigated a previous report accusing Brady of sexual

assault. The previous report was from a friend of Brady’s wife, who said that she had

visited the Bradys’ home. After being served a drink by the couple, the woman began

feeling “woozy” and then “blacked out,” but she remembered having some sort of sexual

encounter with Brady. She also remembered seeing what she believed was a camera

mounted on the dresser in Brady’s bedroom, where the sexual encounter took place. A

search of Brady’s home during the investigation turned up videos that Brady had taken of

he and his wife engaging in sexual activity.

{¶ 10} Detective Fosnight applied for a second search warrant, this one authorizing

a search of the USB drive’s contents. In his supporting affidavit, he included a paragraph

describing the videos that were found in the investigation of the previous sexual-assault
 -5-

allegations against Brady. The warrant was issued. On the USB drive, Detective Fosnight

found 59 separate video files dated from October 5, 2016, through January 24, 2017.

Some videos showed Brady’s daughter clothed and sleeping in her bed. Other videos

showed her naked in the shower; it appeared that these videos were recorded through a

hole in the shower wall. The remaining videos showed Brady sexually assaulting his

daughter while she slept. The images were of Brady forcing his fingers and penis into his

daughter’s mouth and vagina while she was unconscious. The final video showed Brady

ejaculating onto her face.

{¶ 11} After Brady was released from the scene, he fled to his mother’s home in

Tennessee. Brady was arrested there the following day and extradited back to Ohio,

where he was soon indicted on four counts of voyeurism, in violation of R.C. 2907.08(C);

five counts of pandering sexually oriented material involving a minor, in violation of R.C.

2907.322(A)(1); and fourteen counts of rape (substantially impaired victim), in violation of

R.C. 2907.02(A)(1)(a).

{¶ 12} On March 15, 2017, Brady filed a motion to suppress his statements to

police and the videos found on the USB drive. After a hearing, the trial court overruled the

motion to suppress. The court concluded that Brady was not in custody for Miranda

purposes when he was detained, that he validly consented to the search of his car, that

he was not unlawfully detained, and that both of the search warrants were valid. On May

10, 2017, Brady filed a second motion to suppress the videos under Franks v. Delaware,

438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), arguing that the affidavit supporting

the search warrant of the USB drive contained false or misleading information. The trial

court also overruled this motion to suppress, concluding that Brady had “not made a
 -6-

substantial preliminary showing that a false statement, knowingly and intentionally, or with

reckless disregard for the truth, was included in the warrant affidavit.”

{¶ 13} Brady pleaded no contest to all the charges and was found guilty. At his

presentence interview, Brady said that he could not figure out why he did those things to

his daughter. He claimed that none of the crimes was planned and that, when he

committed each act, he was under the influence of alcohol or prescription medication.

The trial court sentenced Brady to a total of 77 years in prison.

{¶ 14} Brady appeals.

II. Analysis

{¶ 15} Brady assigns two errors to the trial court. The first assignment of error

challenges the court’s decisions overruling the motions to suppress. The second

assignment of error challenges the aggregate prison sentence that the court imposed.

A. The motions to suppress

{¶ 16} The first assignment of error alleges:

THE TRIAL COURT ERRED IN OVERRULING BRADY’S MOTIONS TO

SUPPRESS.

{¶ 17} In reviewing a trial court’s motion-to-suppress ruling, “an appellate court

must accept the trial court’s findings of fact if they are supported by competent, credible

evidence.” (Citation omitted.) State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372,

797 N.E.2d 71, ¶ 8. “Accepting these facts as true, the appellate court must then

independently determine, without deference to the conclusion of the trial court, whether

the facts satisfy the applicable legal standard.” (Citation omitted.) Id.

{¶ 18} Brady argues that the trial court should have sustained his first motion to
 -7-

suppress based on a Miranda violation and invalid consent to search the car. He argues

that the court should have sustained his second motion to suppress based on a Franks

violation and a lack of probable cause.

1. There was no Miranda violation.

{¶ 19} “The right to [Miranda] warnings is grounded in the Fifth Amendment’s

prohibition against compelled self-incrimination.” State v. Strozier, 172 Ohio App.3d 780,

2007-Ohio-4575, 876 N.E.2d 1304, ¶ 16 (2d Dist.), citing Moran v. Burbine, 475 U.S. 412,

420, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). “Miranda warnings are not required simply

because the questioning takes place in a coercive atmosphere.” State v. Hoffner, 102

Ohio St.3d 358, 2004-Ohio-3430, 811 N.E.2d 48, ¶ 26, citing Oregon v. Mathiason, 429

U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977). Instead, “[t]he procedural safeguards

prescribed by Miranda apply only when persons are subjected to ‘custodial

interrogation.’ ” State v. Thomas, 2d Dist. Montgomery No. 20643, 2005-Ohio-3064, ¶ 27,

citing Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

{¶ 20} “ ‘Custodial interrogation’ means questioning initiated by the police after the

person has been taken into custody or otherwise deprived of his freedom to the degree

associated with a formal arrest.” (Citations omitted.) State v. Vineyard, 2d Dist.

Montgomery No. 25854, 2014-Ohio-3846, ¶ 32. In deciding whether a person was in

custody, a court “must first inquire into the circumstances surrounding the questioning

and, second, given those circumstances, determine whether a reasonable person would

have felt that he or she was not at liberty to terminate the interview and leave.” Hoffner at

¶ 27, citing Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 133 L.Ed.2d 383

(1995). Based on the factual circumstances, “the court must apply an objective test to
 -8-

resolve ‘the ultimate inquiry’ of whether there was a ‘ “formal arrest or restraint on freedom

of movement” of the degree associated with a formal arrest.’ ” Id., quoting California v.

Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983), quoting

Mathiason at 495. “The subjective views of the interviewing officer and the suspect are

immaterial to the determination of whether a custodial interrogation was conducted.”

(Citations omitted.) State v. Earnest, 2d Dist. Montgomery No. 26646, 2015-Ohio-3913,

¶ 22.

{¶ 21} Here, Officer Siegrist approached Brady’s car and gathered Brady’s

information. When Officers Holbrook and Combs arrived, Officer Siegrist went to the

house and spoke with the victim, who confirmed the allegations against Brady. While

Officer Siegrist spoke with the victim, Brady remained in his car. When Officer Siegrist

returned to Brady, Siegrist asked him to exit the car so that he (Siegrist) could explain

what was going on. Officer Siegrist then told Brady that he was a suspect in a sexual-

assault report, asked Brady if there was anything illegal inside the car, and asked for

Brady’s consent to search the car. Brady responded that prescription medication and a

handgun were in the car. Brady was never handcuffed or otherwise physically restrained.

No police officer ever drew his weapon or tried to intimidate him. Brady was never formally

arrested, and he was allowed to leave the scene about an hour after he was first stopped.

{¶ 22} These circumstances do not show that Brady was in custody for purposes

of Miranda. It is true that Brady was detained, but “the freedom-of-movement test

identifies only a necessary and not a sufficient condition for Miranda custody.” Maryland

v. Shatzer, 559 U.S. 98, 112, 130 S.Ct. 1213, 175 L.Ed.2d 1045 (2010). “Miranda is to be

enforced ‘only in those types of situations in which the concerns that powered the decision
 -9-

are implicated.’ ” Id., quoting Berkemer v. McCarty, 468 U.S. 420, 437, 104 S.Ct. 3138,

82 L.Ed.2d 317 (1984). Accordingly, “the temporary and relatively nonthreatening

detention involved in a traffic stop or Terry stop does not constitute Miranda custody.” Id.

at 113, citing McCarty at 439-440. These investigatory detentions are “limited in duration

and purpose and can only last as long as it takes a police officer to confirm or to dispel

his suspicions.” Strozier, 172 Ohio App.3d 780, 2007-Ohio-4575, 876 N.E.2d 1304, at ¶

17, citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

{¶ 23} Here, police officers did briefly restrict Brady’s movement while they

investigated the sexual-assault report. But that does not mean that Brady was in custody

for the purposes of Miranda. It is true that during an investigatory detention “a reasonable

person would have believed that he was not free to leave.” Strozier at ¶ 17, citing United

States v. Mendenhall, 446 U.S. 544, 553, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). The

question is whether a reasonable person would have understood the detention to

constitute a restraint on freedom of movement of the degree which the law associates

with a formal arrest. Id., citing Yarborough v. Alvarado, 541 U.S. 652, 124 S.Ct. 2140,

158 L.Ed.2d 938 (2004). For example, in Hoffner, police officers briefly restricted the

defendant’s movement during the initial stages of a search, in order to secure the location

and search the area for weapons and evidence. The Ohio Supreme Court held that, given

the circumstances in the case, directing the defendant to stay in a specific location was

reasonable. Hoffner, 102 Ohio St.3d 358, 2004-Ohio-3430, 811 N.E.2d 48, at ¶ 30. Here,

given the allegations in the sexual-assault report, the officers’ detention of Brady while

they completed their initial investigation was reasonable. We note too that Brady never

said that he wanted to leave. Compare id. (noting the same about the defendant in that
 -10-

case). Finally, that the officers allowed Brady to leave after they had completed their initial

investigation supports the conclusion that he was not in custody for purposes of Miranda.

{¶ 24} As a final matter, we cannot identify any statement that Brady made to

Officer Siegrist that might have incriminated him. All Brady said was that he had

prescription medication and a handgun in the car. Brady claims that the medication and

backpack in which the USB drive was found were obtained as a result of his statements.

But even if he had not said anything to Officer Siegrist, the backpack, medication, and

USB drive would have been found during the later search conducted under a warrant.

2. Brady’s consent to search his car was valid.

{¶ 25} Brady argues that his consent to search the car was invalid. He contends

that the consent was given while he was being detained illegally. Brady also contends

that Officer Siegrist had no valid reason to ask for consent to search.

{¶ 26} Brady was not being detained illegally. As we have already said, a police

officer may temporarily detain a person for investigatory purposes, and the investigatory

detention may last as long as it takes to confirm or dispel the officer’s suspicions. Here,

the trial court found that Brady was detained for both the traffic offense and the report of

sexual assault. The report alleged that the perpetrator of the assault was the victim’s

father. Officer Siegrist arrived at the scene at 2:30 in the morning, shortly after the report

was made, and he saw Brady attempting to leave. Officer Siegrist testified that he did not

detain Brady based solely on the traffic violation. Siegrist said that he was responding to

the residence based on the sexual-assault report and that, when he saw Brady in the

driveway, he intended to make contact with him in order to begin the investigation into the

report. We think that the traffic violation merely provided an additional objective
 -11-

justification for the detention, because even without the traffic violation, any reasonable

police officer in Siegrist’s position would have detained Brady.

{¶ 27} Brady’s continued detention was reasonable too. The report alleged that the

victim’s father committed the assault, so Officer Siegrist had good reason to suspect

Brady. That justified Brady’s detention while Siegrist talked to the victim. Officer Siegrist’s

actions constituted reasonable means by which to either confirm or dispel the sexual-

assault allegation. The victim’s confirmation of the allegation reasonably increased Officer

Siegrist’s suspicion, justifying Brady’s continued detention while Siegrist continued the

investigation. Given the allegation that Brady had drugged the victim and that Brady

appeared to be fleeing the scene when he arrived, it was reasonable for Officer Siegrist

to ask Brady what he had with him in the car. In sum, Officer Siegrist was gathering

information on the scene and making assessments as new facts became known to him.

{¶ 28} Finally, Brady contends that Officer Siegrist had no valid reason to ask for

consent to search. He says that the request was made under false pretenses. Even in the

context of the sexual-assault investigation, says Brady, there was no indication, nothing

in plain view in the car, that would justify a search. But Brady cites no legal authority for

the proposition that a police officer must have a valid reason to ask for consent to search

a vehicle, and we find none. Regardless, as we just said, under the circumstances, it was

reasonable to want to know what Brady was taking with him.

{¶ 29} “Consent is an exception to the warrant requirement, and requires the State

to show by clear and positive evidence that the consent was freely and voluntarily given.”

State v. George, 2d Dist. Montgomery No. 25945, 2014-Ohio-4853, ¶ 28. Since Brady

was lawfully detained at the time Officer Siegrist asked for consent, the standard totality-
 -12-

of-the-circumstances analysis for voluntariness applies. See Schneckloth v. Bustamonte,

412 U.S. 218, 222-223, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Officers Siegrist and

Combs testified that Brady readily gave consent for a search of his car. At the time he

consented, Brady was standing in the street next to the car. He was not in handcuffs, and

no officer had threatened him or acted in a coercive or intimidating manner. Brady offered

no evidence that his consent was involuntary. The trial court’s finding that Brady

voluntarily consented to the search of his car was supported by competent, credible

evidence.

3. The warrant to search the USB drive was valid.

{¶ 30} Brady’s last suppression argument challenges the warrant authorizing the

search of the USB drive. He first argues that the supporting affidavit contained false or at

least misleading information. Brady also argues that a lack of probable cause precluded

issuing the warrant.

{¶ 31} Paragraph f of the supporting affidavit stated:

In a prior investigation of Brandon Brady regarding an alleged rape revealed

the possibility of the suspect recording his victim after slipping something in

her drink. She alleged to having been drugged and not remembering much.

A search warrant was executed then and a number of computers, disks and

tapes were seized and searched, finding he did record sexual activity,

though at the time, the only activity was with his wife, Tara Brady. The USB

in this incident was taken as it was alongside the medications presumed to

have been given to his daughter and due to the fact that he is known to

digitally record his sexual activity.
 -13-

Brady points out that there was no indication that the alleged sexual assault in this case

had been recorded. He also points out that, in the previous rape investigation, he was

never charged, and the only recordings discovered were legal and involved only his wife.

Paragraph f, says Brady, was included in the affidavit to mislead.

{¶ 32} The U.S. Supreme Court held in Franks that, “where the defendant makes

a substantial preliminary showing that a false statement knowingly and intentionally, or

with reckless disregard for the truth, was included by the affiant in the warrant affidavit,

and if the allegedly false statement is necessary to the finding of probable cause, the

Fourth Amendment requires that a hearing be held at the defendant’s request.” Franks,

438 U.S. at 155-156, 98 S.Ct. 2674, 57 L.Ed.2d 667. A supporting affidavit is presumed

valid. Id. at 171. An attack “must be more than conclusory and must be supported by

more than a mere desire to cross-examine.” Id. Rather, “[t]here must be allegations of

deliberate falsehood or of reckless disregard for the truth, and those allegations must be

accompanied by an offer of proof.” Id.

{¶ 33} We agree with the trial court’s conclusion that Brady did not make the

required preliminary showing with respect to paragraph f. The court found no evidence in

the record suggesting that paragraph f contained any false statement. Detective Fosnight

testified that he sought a search warrant for the contents of the USB drive because it was

found inside the backpack that Brady was carrying in his car, because it was found near

prescription sleeping pills, and because Fosnight had helped investigate a prior allegation

of sexual assault against Brady in which the victim alleged that he had recorded the

sexual encounter. Detective Fosnight also said that the earlier investigation yielded

evidence that Brady had recorded his sexual activity. We note too that paragraph f
 -14-

specifically says that the only sexual activity previously discovered was a recording of

Brady with his wife, not with the alleged victim in the prior investigation.

{¶ 34} Brady also argues that there was no probable cause to justify a search of

the USB drive. He points out that there was no allegation prior to the search that he had

recorded any sexual encounter with his daughter. Brady says that the only reason to think

that he may have recorded an encounter was that, in the previous, unrelated investigation

of a rape allegation, police discovered that he had lawfully recorded sexual encounters

with his wife.

{¶ 35} The Fourth Amendment to the United States Constitution and Article I,

Section 14 of the Ohio Constitution provide that search warrants may be issued only upon

probable cause. State v. Jones, 143 Ohio St.3d 266, 2015-Ohio-483, 37 N.E.3d 123, ¶

11-12. “The Supreme Court of the United States has provided that in determining whether

a search warrant was issued upon a proper showing of probable cause, reviewing courts

must examine the totality of the circumstances.” Id. at ¶ 13, citing Illinois v. Gates, 462

U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). “[T]he duty of a reviewing court is

simply to ensure that the magistrate had a ‘substantial basis for * * * conclud[ing]’ that

probable cause existed.” Gates at 238-239, quoting Jones v. United States, 362 U.S. 257,

271, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), overruled on other grounds, United States v.

Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). “[T]he issuing magistrate’s

duty is to determine whether ‘there is a fair probability that contraband or evidence of a

crime will be found in a particular place.’ ” Jones at ¶ 13, quoting Gates at 238. “The duty

of a reviewing court is simply to ensure that the magistrate had a substantial basis for

concluding that probable cause existed. In conducting any after-the-fact scrutiny of an
 -15-

affidavit submitted in support of a search warrant, trial and appellate courts should accord

great deference to the magistrate’s determination of probable cause, and doubtful or

marginal cases in this area should be resolved in favor of upholding the warrant.” State

v. George, 45 Ohio St.3d 325, 544 N.E.2d 640 (1989), paragraph two of the syllabus.

{¶ 36} Here, Detective Fosnight reasonably inferred that Brady might have

recorded himself sexually assaulting his daughter and that those recordings might be on

the USB drive. Fosnight knew that the victim in the previous case had alleged that Brady

video-recorded a sexual assault, and the allegations in that case were similar to the

allegations in this case. Although Detective Fosnight could not verify that Brady had

recorded the sexual assault alleged in the previous case, Fosnight did discover that Brady

had recorded his sexual activity. In this case, Brady was carrying the USB drive in the

backpack that he was taking with him at 2:30 in the morning. The drive was found next to

a bottle of sleep medication. The victim had said that Brady gave her medication to help

her sleep, and it was while she was sleeping that Brady was alleged to have assaulted

her.

{¶ 37} The trial court here had a duty to examine the totality of the circumstances

to determine whether probable cause existed for issuing the search warrant for the USB

drive. Our duty is the same. See Jones at ¶ 15 (“[b]oth the trial court and the appellate

court had a duty to examine the totality of the circumstances in determining whether

probable cause existed for issuing the search warrant”). The trial court found that the

warrant was based on probable cause. We agree. After reviewing the supporting affidavit,

we think that it was sufficient to give the issuing judge a substantial basis to conclude that

there was a fair probability that a search of the USB drive would lead to the discovery of
 -16-

evidence that Brady had sexually assaulted his daughter.

{¶ 38} The trial court properly overruled both of Brady’s motions to suppress. The

first assignment of error is overruled.

B. The aggregate prison sentence

{¶ 39} The second assignment of error alleges:

BRADY’S 77 YEAR CONSECUTIVE PRISON SENTENCE WAS CRUEL

AND UNUSUAL PUNISHMENT AND WAS NOT SUPPORTED BY THE

RECORD.

{¶ 40} Brady contends that the aggregate prison sentence imposed by the trial

court violates the Eighth Amendment prohibition against cruel and unusual punishment.

He also contends that consecutive prison terms were not supported by the record.

{¶ 41} Under the sentence-review standard set forth in R.C. 2953.08(G)(2), “we

may vacate or modify a sentence only if we find, by clear and convincing evidence, that

the sentence is contrary to law or that the record does not support the trial court’s findings

under certain statutes (including the findings required for consecutive sentences).” State

v. Beverly, 2016-Ohio-8078, 75 N.E.3d 847, ¶ 9 (2d Dist.), citing State v. Marcum, 146

Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22.

1. The aggregate prison sentence was not a cruel and unusual punishment.

{¶ 42} The Eighth Amendment to the U.S. Constitution prohibits cruel and unusual

punishment and imposes a requirement of proportionality. State v. Broom, 146 Ohio St.3d

60, 2016-Ohio-1028, 51 N.E.3d 620, ¶ 36, citing Miller v. Alabama, 567 U.S. 460, 469,

132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). “ ‘[A]s a general rule, a sentence that falls within

the terms of a valid statute cannot amount to a cruel and unusual punishment.’ ” State v.
 -17-

Hairston, 118 Ohio St.3d 289, 2008-Ohio-2338, 888 N.E.2d 1073, ¶ 21, quoting

McDougle v. Maxwell, 1 Ohio St.2d 68, 69, 203 N.E.2d 334 (1964). “[W]e are bound to

give substantial deference to the General Assembly, which has established a specific

range of punishment for every offense and authorized consecutive sentences for multiple

offenses.” (Citation omitted.) Id. at ¶ 24.

{¶ 43} Brady does not dispute that each of his individual sentences was authorized

by statute. He also does not challenge the constitutionality of the sentencing statute or

contend that any of his individual sentences was grossly disproportionate to the specific

offenses for which the sentence was imposed. Rather, Brady’s argument regards his

sentence as a whole, as a package.

{¶ 44} Ohio rejects the sentencing-package doctrine. State v. Saxon, 109 Ohio

St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 10. “[A]ppellate courts may not utilize the

doctrine when reviewing a sentence or sentences.” Id. at paragraph two of the syllabus.

Rather, “[a]n appellate court may modify, remand, or vacate only a sentence for an

offense that is appealed by the defendant and may not modify, remand, or vacate the

entire multiple-offense sentence based upon an appealed error in the sentence for a

single offense.” Id. at paragraph three of the syllabus. “Where none of the individual

sentences imposed on an offender are grossly disproportionate to their respective

offenses, an aggregate prison term resulting from consecutive imposition of those

sentences does not constitute cruel and unusual punishment.” Hairston at syllabus.

{¶ 45} Given that each of Brady’s individual prison sentences was within the

authorized statutory range, we conclude that the total sentence did not constitute cruel

and unusual punishment.
 -18-

2. Consecutive sentences are supported by the record.

{¶ 46} The trial court imposed an 11-year prison term for each of the fourteen rape

counts as well as shorter prison terms for the other counts. The court ordered Brady to

serve seven of the prison terms imposed for rape consecutively, for a total of 77 years in

prison. Brady argues that the record did not support sending him to prison for the rest of

his life and did not clearly and convincingly support the trial court’s consecutive-sentence

findings. We disagree.

{¶ 47} The law raises a presumption in favor of concurrent sentences. R.C.

2929.41(A) (absent specific exceptions, “a prison term * * * shall be served concurrently

with any other prison term”). A court may order consecutive sentences only if it makes

certain findings. The 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). And the court must make one other

finding, one of which is that “[a]t 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,” R.C. 2929.14(C)(4)(b).

{¶ 48} The trial court here made the mandatory consecutive-sentence findings in

the termination entry. The transcript of the sentencing hearing shows that the judge very

consciously imposed a life sentence on Brady: “[T]he question really before this Court, at

the end of the day, is is there going to be—is this a life sentence or not? It really comes
 -19-

down to that.” (Tr. 118.) The judge said that he struggled with that question. In the end,

the judge concluded that Brady’s crimes demanded life in prison: “Why in God’s name

would you want to watch yourself raping your daughter? And I can’t get past that. No

matter what you say, [defense counsel], I can’t get past it. I can’t get past the conduct.”

(Id. at 120.) “To me,” continued the judge, “the conduct is so far outside societal []norms,

and I’ve represented abnormal societal conduct. But this is so far removed to me that I

can’t, I just can’t, get past it.” (Id..) The judge told Brady that he was going to make sure

that Brady would spend the rest of his life in prison: “* * * I’m going to make sure from the

sentence that I’m about to impose that you will not see the light of day outside of prison.

That’s the way I feel about it.” (Id. at 121.)

{¶ 49} Upon review, we do not think that the record clearly and convincingly fails

to support the trial court’s consecutive-sentence findings. The presentence investigation

report describes how, on the night police were called, Brady had given his daughter

sleeping pills and she awoke later to find him raping her. That was not the first time he

had done this. The videos found on the USB drive prove that Brady had drugged and

raped his daughter multiple times between October 2016 and January 2017. He had even

drilled a hole in the shower wall through which he recorded her showering. While Brady’s

aggregate prison term is harsh, we have no basis to conclude that the consecutive

sentences were clearly and convincingly unsupported by the record.

{¶ 50} In sum, neither Brady’s individual sentences nor his aggregate sentence

was contrary to law, as each individual sentence was within the authorized statutory

range. The trial court’s imposition of consecutive sentences was not contrary to law, as

the court made the mandatory consecutive-sentence findings. Finally, the record does
 -20-

not clearly and convincingly fail to support the trial court’s consecutive-sentence findings.

{¶ 51} The second assignment of error is overruled.

III. Conclusion

{¶ 52} We have overruled both assignments of error presented. The trial court’s

judgment is affirmed.

.............

FROELICH, J., concurring:

{¶ 53} Brady was facing a maximum sentence of 198 years, and it is clear from the

transcript that the court carefully and seriously weighed the statutory sentencing factors,

the statements of Brady’s relatives and friends, and the statement of the victim before

reaching its decision.

{¶ 54} Hairston, 118 Ohio St.3d 289, 2008-Ohio-2338, 888 N.E.2d 1073, a non-

homicide case in which the defendant received a 134-year sentence, holds that when

“none of the individual sentences are grossly disproportionate to their respective offenses,

an aggregate term resulting from consecutive imposition of those sentences does not

constitute cruel and unusual punishment.” As such, the sentence in this case was not

unconstitutional.

{¶ 55} I write only to comment that sentencing is more than mathematics and that

at some point, with specific facts and circumstances (again, not this case), the whole

sentence will be constitutionally greater than the sum of its parts.

DONOVAN, J., concurring:

{¶ 56} I concur in Judge Hall’s opinion and in Judge Froelich’s concurring opinion.
 -21-

Copies sent to:

Mathias H. Heck
Michael J. Scarpelli
Lucas W. Wilder
Hon. Richard Skelton