State v. Rice

[Cite as State v. Rice, 2020-Ohio-4404.]

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

STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28572
:
v. : Trial Court Case No. 2019-CR-1200
:
DASHAWN L. RICE : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:

...........

OPINION

Rendered on the 11th day of September, 2020.

...........

MATHIAS H. HECK, JR., by LISA M. LIGHT, Atty. Reg. No. 0097348, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee

J. DAVID TURNER, Atty. Reg. No. 0017456, 101 Southmoor Circle NW, P.O. Box
291771, Dayton, Ohio 45429
Attorney for Defendant-Appellant

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

WELBAUM, J.
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{¶ 1} Defendant-appellant, Dashawn L. Rice, appeals from his conviction in the

Montgomery County Court of Common Pleas after a jury found him guilty of one count of

robbery and one count of burglary. In support of his appeal, Rice contends that the

sentence he received for his offenses was contrary to law because the trial court failed to

make an allied offense determination at his sentencing hearing and failed to merge his

offenses as required by R.C. 2941.25. Rice also challenges the consecutive nature of

his sentences by arguing that the trial court’s consecutive-sentences findings were

unsupported by the record. Rice further argues that he was denied a fair trial due to the

trial court’s excluding relevant, material evidence. For the reasons outlined below,

Rice’s judgment of conviction will be affirmed.

Facts and Course of Proceedings

{¶ 2} On May 6, 2019, a Montgomery County grand jury returned a three-count

indictment charging Rice with robbery (physical harm) in violation of R.C. 2911.02(A)(2),

a second-degree felony; burglary in violation of R.C. 2911.12(A)(1), also a second-degree

felony; and grand theft of a motor vehicle in violation of R.C. 2913.02(A)(1), a fourth-

degree felony. The charges were based on allegations that Rice entered the residence

of his ex-girlfriend, S.L., without permission by kicking down the front door during the early

morning hours of April 4, 2019. Once inside the residence, Rice allegedly shoved S.L.

to the ground, stole her car keys and cell phone, and then drove away in S.L.’s vehicle

without her permission.

{¶ 3} Rice pled not guilty to the charges and the matter proceeded to a two-day

jury trial. At trial, S.L. testified that she and Rice had been dating for one month but
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ended their relationship via text message on April 3, 2019. S.L. testified that after ending

their relationship that day, Rice asked her to return some clothing that he had left at her

residence. S.L. claimed that she told Rice he could come over and retrieve the clothing

himself. According to S.L., Rice did not indicate when or if he was coming over, and S.L.

had no other contact with Rice for the rest of the day. S.L. testified that she spent the

evening at home watching television with her one-year old son, her sister, and a platonic

male friend. S.L. testified that after her sister left, and after her son went to bed, she and

her friend fell asleep on the couch.

{¶ 4} At 1:00 a.m. the next morning, S.L. woke up to a noise in her driveway and

to Rice knocking at her front door. S.L. testified that the noise in her driveway was a red

truck that had dropped Rice off at her residence. S.L. testified that she looked at her

phone and saw that Rice had been texting her while she was sleeping. When Rice

continued to bang on the door, S.L. told him that she was not going to let him inside

because it was too late. S.L. testified that Rice continued banging on her door until he

eventually kicked it open with such force that the door fell off the door frame. Once

inside the residence, S.L. testified that Rice started yelling and cussing at her. S.L.

testified that Rice then grabbed her arms and shoved her to the ground. Thereafter, S.L.

went to her son’s room; her son had been woken up by the incident. S.L. testified that

her friend was also in her son’s room at that time.

{¶ 5} S.L. testified that, after checking on her son, she and Rice argued while Rice

went through her house looking for his clothing. Rice then demanded that she drop him

off at his friend’s house. After refusing Rice’s repeated demands to drop him off at his

friend’s house, and after continually telling him to leave her home, S.L. saw Rice grab her
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car keys from a key rack on the wall and drive away in her car. S.L. testified that, as

Rice left her residence, he screamed: “I’ll bring your car back.” Trans. Vol. I, p. 102.

However, S.L. testified that she did not give Rice permission to take her car keys and told

him not to take her car.

{¶ 6} During her testimony, S.L. also indicated that Rice took her and her friend’s

cell phones. Although S.L. did not actually see Rice take her phone, S.L. testified that

she threw her phone on the couch when Rice kicked down the door and that her phone

was missing from the couch after Rice left her residence. S.L. did, however, see Rice

take her friend’s phone. Specifically, S.L. testified that she had her friend’s cell phone

in her hand while she and Rice were arguing, and that Rice grabbed the phone from her

hand and put it in his pocket.

{¶ 7} Once Rice drove away in S.L.’s car, S.L. called 9-1-1 from a neighbor’s

phone to report the incident. The police thereafter arrived at S.L.’s residence and S.L.

spoke to an investigating officer. S.L. testified that while she was speaking to the

investigating officer, she saw the same red truck that had dropped Rice off at her

residence drive by. S.L. testified that she pointed the red truck out to the officer and that

the police pursued the vehicle.

{¶ 8} Deputy David Posma of the Montgomery County Sheriff’s Office testified to

seeing the red truck drive by as S.L. was being interviewed. Deputy Posma testified that

he conducted a traffic stop of the red truck after observing the truck’s license plate light

was burnt out. Deputy Posma testified that Rice was identified as a passenger in the

truck and that Rice matched S.L.’s description of the suspect who had entered her home.

Deputy Posma detained Rice in the back of his cruiser and transported him to the area of
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S.L.’s residence, where Rice was Mirandized and interviewed by Montgomery County

Sheriff’s Deputy David Williams. Deputy Williams testified that he interviewed Rice, and

Rice told him he did not live at S.L.’s residence, but simply had some clothes at her house.

{¶ 9} S.L. testified that she later found her car a block away from her residence on

the side of the road. Because she did not have her car keys, she called the police, and

the police had her car towed to her driveway. S.L. testified that her car keys were

eventually found under the seat/side of her car. However, S.L. never found her cell

phone.

{¶ 10} When discussing her relationship with Rice, S.L. testified that Rice would

spend a few nights a week at her residence; however, Rice did not live at her residence

or receive mail there. S.L. also testified that she had helped Rice apply for food stamps

by writing a March 22, 2019 letter that falsely asserted Rice lived at her residence and

paid $700 a month in rent. The State submitted the letter as evidence and S.L.

confirmed that the statement in the letter was not true. On cross-examination, Rice’s

counsel chose not ask S.L. any questions about her living situation with Rice or the letter

she wrote.

{¶ 11} After the State rested its case, Rice indicated that it was his intent to present

testimony from a representative of Montgomery County Job and Family Services

(“MCJFS”) regarding certain public assistance records that Rice had subpoenaed. The

records included a correspondence to Rice from MCJFS that was addressed to S.L.’s

residence. Rice advised the trial court that he was going to use the records to establish

that he and S.L. had a live-in relationship. However, because the records were not

received by the parties until after the State had already rested its case, and because Rice
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had the opportunity to cross examine S.L. about their living arrangement, the trial court

declined to let Rice use the MCJFS records at trial. After objecting to the trial court’s

decision, Rice called Deputy Williams to testify about the police report he authored. Rice

then rested his case and the matter was submitted to the jury.

{¶ 12} Following deliberations, the jury returned a verdict finding Rice guilty of

robbery and burglary, but not guilty of grand theft of a motor vehicle. Prior to sentencing,

both parties submitted sentencing memorandums in which they discussed the issue of

whether the robbery and burglary should merge as allied offenses at sentencing. Rice

argued for merging the sentences, while the State argued that the robbery and burglary

were not allied offenses that should merge. The parties raised their respective

arguments at the sentencing hearing as well.

{¶ 13} After listening to the parties’ arguments at the sentencing hearing and after

stating that it had considered the parties’ sentencing memorandums, the trial court

imposed separate sentences for Rice’s robbery and burglary offenses. For robbery, the

trial court imposed a mandatory indefinite term of 5 to 7.5 years in prison. For burglary,

the trial court imposed a mandatory definite minimum term of five years in prison. The

trial court further ordered the sentences for robbery and burglary to be served

consecutively for a total, indefinite term of 10 to 12.5 years in prison.

{¶ 14} Rice now appeals from his conviction, raising four assignments of error for

review.

First and Second Assignments of Error

{¶ 15} Under his first and second assignments of error, Rice claims that his
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sentence is contrary to law because the trial court failed to make an allied-offense

determination at his sentencing hearing and because the trial court failed to merge his

robbery and burglary offenses as required by R.C. 2941.25.

{¶ 16} Because he never objected to the trial court’s failure to make an allied-

offense determination at the sentencing hearing, Rice concedes that a plain-error

standard of review applies to that issue on appeal. “Plain error exists when the outcome

would clearly have been different if the error had not occurred and should only be

recognized with utmost caution, under exceptional circumstances, and only to prevent a

manifest miscarriage of justice.” (Citations omitted.) State v. Skatzes, 2d Dist.

Montgomery No. 15848, 2003-Ohio-516, ¶ 53.

{¶ 17} Upon review, we do not find that the trial court erred, plainly or otherwise,

with regard to making an allied-offense determination. Although the trial court did not

announce its allied-offense determination at the sentencing hearing, the record indicates

that an allied-offense determination was in fact made. Prior to the trial court’s imposition

of separate sentences, both parties argued the allied-offense issue at the sentencing

hearing as well as in their sentencing memorandums. Because the trial court imposed

separate sentences after advising the parties that it had considered their sentencing

memorandums and after the parties had made their allied-offense arguments at the

sentencing hearing, we find that the trial court’s decision to impose separate sentences

was an implicit rejection of any contention that the offenses should merge for sentencing.

Simply put, the trial court’s allied-offenses determination was implied from its decision to

impose separate sentences. Moreover, as noted by the Supreme Court of Ohio, when

a trial court “fails to make any finding regarding whether the offenses are allied, imposing
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a separate sentence for each offense is not contrary to law[.]” State v. Williams, 148

Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, ¶ 26. Therefore, because the trial

court imposed separate sentences for Rice’s robbery and burglary offenses, the failure to

make any allied-offenses finding on the record at the sentencing hearing did not render

those sentences contrary to law.

{¶ 18} The second part of Rice’s argument—that his robbery and burglary offenses

should have merged pursuant to R.C. 2941.25—is reviewed de novo. State v. Hazley,

2d Dist. Montgomery No. 27107, 2016-Ohio-7689, ¶ 16, citing State v. Williams, 134 Ohio

St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28. “De novo appellate review means

that this court independently reviews the record and affords no deference to a trial court’s

decision.” (Citation omitted.) State v. Kennedy, 2d Dist. Clark No. 2017-CA-100, 2018-

Ohio-4997, ¶ 35.

{¶ 19} R.C. 2941.25 governs the merger of allied offenses and provides as follows:

(A) Where the same conduct by defendant can be construed to

constitute two or more allied offenses of similar import, the indictment

or information may contain counts for all such offenses, but the

defendant may be convicted of only one.

(B) Where the defendant’s conduct constitutes two or more offenses of

dissimilar import, or where his conduct results in two or more

offenses of the same or similar kind committed separately or with a

separate animus as to each, the indictment or information may

contain counts for all such offenses, and the defendant may be

convicted of all of them.
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{¶ 20} “ ‘[W]hen determining whether offenses are allied offenses of similar import

within the meaning of R.C. 2941.25, courts must ask three questions when defendant’s

conduct supports multiple offenses: (1) Were the offenses dissimilar in import or

significance? (2) Were they committed separately? and (3) Were they committed with

separate animus or motivation? An affirmative answer to any of the above will permit

separate convictions. The conduct, the animus, and the import must all be considered.’ ”

State v. Earley, 145 Ohio St.3d 281, 2015-Ohio-4615, 49 N.E.3d 266, ¶ 12, quoting State

v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 31.

{¶ 21} As to the question of import and significance, “two or more offenses of

dissimilar import exist within the meaning of R.C. 2941.25(B) when the defendant’s

conduct constitutes offenses involving separate victims or if the harm that results from

each offense is separate and identifiable.” Ruff at ¶ 23. “[A] defendant’s conduct that

constitutes two or more offenses against a single victim can support multiple convictions

if the harm that results from each offense is separate and identifiable from the harm of

the other offense.” Id. at ¶ 26. Burglaries and robberies “ ‘are often not allied offenses

of similar import because they involve two separate crimes; entering into the premises by

force, stealth or deception, and then committing a theft offense.’ ” State v. Terrel, 2d

Dist. Miami No. 2014-CA-24, 2015-Ohio-4201, ¶ 24, quoting State v. Kay, 2d Dist.

Montgomery No. 25761, 2014-Ohio-2676, ¶ 21.

{¶ 22} As previously noted, Rice contends that his robbery and burglary offenses

were allied offenses that should have merged at sentencing. We disagree. In

committing the burglary offense at issue, the record establishes that Rice trespassed in

the victim’s home while the victim was present by forcefully kicking down the front door
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with the purpose to commit the crimes of assault and theft therein. See R.C.

2911.12(A)(1) (“[n]o person, by force, stealth, or deception, shall * * * [t]respass in an

occupied structure * * * when another person other than an accomplice of the offender is

present, with purpose to commit in the structure * * * any criminal offense”). In order to

commit burglary, Rice did not have to actually commit a criminal offense inside the victim’s

residence, as the intent to commit any criminal offense while trespassing constitutes the

commission of the burglary. State v. Chafin, 2d Dist. Greene No. 2019-CA-69, 2020-

Ohio-3983, ¶ 35. Therefore, Rice completed the burglary once he entered the victim’s

residence by force with the intent to commit a criminal offense therein. See id. at ¶ 37.

{¶ 23} After the burglary was completed, Rice committed robbery. Specifically,

the record establishes that once Rice was inside the victim’s residence, Rice grabbed the

victim’s arms, shoved the victim to the ground, and then stole the victim’s car keys and a

cell phone from the victim’s hands. See R.C. 2911.02(A)(2) (“[n]o person, in attempting

or committing a theft offense or in fleeing immediately after the attempt or offense, shall

* * * [i]Inflict, attempt to inflict, or threaten to inflict physical harm on another”). These

events occurred after the burglary had already been completed and involved the separate

elements of theft and physical harm/attempted physical harm against the victim.

{¶ 24} In State v. Jackson, 149 Ohio St.3d 55, 2016-Ohio-5488, 73 N.E.3d 414,

the Supreme Court of Ohio considered a similar factual scenario and held that:

The burglary was complete when Jackson entered Fingerhut’s

residence with the intent to commit murder, theft, or kidnapping. Jackson

committed aggravated robbery when he stole Fingerhut’s car after

murdering him. Thus, the aggravated burglary and aggravated robbery
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were separate offenses, because they did not arise from the same act.

(Citations omitted.) Id. at ¶ 129. See also State v. Champada, 6th Dist. Fulton No. F-

14-006, 2016-Ohio-7291, ¶ 24 (burglary attempt was complete upon breaking into door

on the premises and subsequent thefts of items were not allied offenses); State v. Evett,

9th Dist. Medina No. 14CA0008-M, 2015-Ohio-2722, ¶ 39 (burglary was accomplished

by defendant’s entrance into home with intent to steal when she knew she was not

welcome; theft occurred later).

{¶ 25} As in Jackson, the robbery and burglary in this case did not arise from the

same act. The burglary arose from Rice’s forcefully trespassing inside the victim’s home

with the purpose to commit a criminal offense therein, while the robbery arose from Rice’s

stealing the victim’s car keys and a cell phone while causing/attempting to cause the

victim physical harm. Because the robbery and burglary offenses did not arise from the

same conduct and involved separate, identifiable harm, those offenses were not allied

offenses within the meaning of R.C. 2941.25. Therefore, the trial court did not err by

failing to merge the offenses at sentencing.

{¶ 26} For the foregoing reasons, Rice’s first and second assignments of error are

overruled.

Third Assignment of Error

{¶ 27} Under his third assignment of error, Rice contends that the trial court erred

by excluding evidence at trial that was relevant and material to his defense. The

evidence in question was public assistance records relating to Rice that Rice subpoenaed

from MCJFS. The records included a correspondence to Rice from MCJFS that was
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addressed to the victim’s residence. Rice contends that this evidence was relevant and

material to his defense because it established that he had a live-in relationship with the

victim and received mail at the victim’s address. Rice claims that excluding the records

from MCJFS prejudiced him and prevented him from receiving a fair trial because it

denied him the ability to impeach the victim’s testimony that he did not live with the victim

or receive mail at her residence.

{¶ 28} “A trial court has broad discretion to admit or exclude evidence, and its

exercise of that discretion will not be disturbed on appeal absent an abuse of discretion.”

State v. Easterling, 2019-Ohio-2470, 139 N.E.3d 497,¶ 54 (2d Dist.), citing State v. Norris,

2d Dist. Montgomery No. 26147, 2015-Ohio-624, ¶ 14. “A trial court abuses its

discretion when it makes a decision that is unreasonable, unconscionable, or arbitrary.”

State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34. “[M]ost

instances of abuse of discretion will result in decisions that are simply unreasonable,

rather than decisions that are unconscionable or arbitrary.” AAAA Ents., Inc. v. River

Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597

(1990). “A decision is unreasonable if there is no sound reasoning process that would

support that decision.” Id.

{¶ 29} In this case, the record establishes that Rice subpoenaed the records from

MCJFS in advance of trial. The records, however, were not received by the parties until

after the State had rested its case. Since the State was not going to be able to use the

evidence from MCJFS, the trial court ruled that Rice would not be allowed to use the

evidence in his defense. In reaching this decision, the trial court confirmed that Rice had

planned on using the evidence to establish a live-in relationship with the victim and noted
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that Rice had been given the opportunity to cross-examine the victim regarding that issue.

{¶ 30} Because the MCJFS records at issue were not admitted by the State at trial

and were favorable to Rice, we find that the trial court’s reasoning for excluding the

MCJFS records was erroneous. However, the trial court’s error was harmless because

the exclusion of the MCJFS records was otherwise appropriate under Evid.R. 403(B).

Pursuant to Evid.R. 403(B), the trial court has discretion to exclude relevant evidence if

the evidence’s probative value is outweighed by undue delay or needless presentation of

cumulative evidence.

{¶ 31} Here, the probative value of the MCJFS records was minimal because the

records were relevant only to the trespass element of burglary and there is an abundance

of evidence establishing that Rice trespassed in the victim’s residence when he kicked

down the victim’s front door. For example, the victim consistently testified that Rice did

not live at her residence and did not have permission to enter her home on the night in

question. The victim also testified to writing a letter that falsely asserted that Rice lived

at her residence so that Rice could apply for and receive food stamps. The victim’s

letter, which was admitted into evidence, tended to establish why MCJFS corresponded

with Rice using the victim’s address, i.e., not because Rice lived with the victim, but

because of the victim’s false statement in the letter. More importantly, Deputy Williams

testified that after Mirandizing Rice, Rice himself stated that he did not live at the victim’s

residence.

{¶ 32} Moreover, even if Rice had been permitted inside the victim’s residence,

once he committed an act of violence against the victim, i.e., assaulting her by grabbing

her and shoving her to the ground, his permission to remain at the victim’s residence was
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presumably revoked. State v. Metcalf, 2d Dist. Montgomery No. 24338, 2012-Ohio-

6045, ¶ 20, quoting 2 Katz, Martin, Lipton & Crocker, Criminal Law, Section 104:6 (3d

Ed.) (“ ‘permission to enter a home is deemed terminated by the act of committing an

offense of violence against a person authorized to revoke the permission’ ”).

{¶ 33} Because there was an abundance of evidence indicating that Rice did not

live with the victim, and because Rice was otherwise not permitted in the victim’s

residence once he assaulted the victim, we find that the MCJFS records were needlessly

cumulative evidence concerning the trespass element of burglary. In addition to being

cumulative, the MCJFS records would have caused undue delay, as the record indicates

that the witness from MCJFS who was subpoenaed to testify regarding the records was

not present in court during Rice’s case in chief. Therefore, when applying Evid.R.

403(B), we do not find that the trial court abused its discretion by excluding the MCJFS

records. Although the trial court excluded the records for a different, erroneous reason,

the trial court nevertheless reached the correct result, thus making the error harmless.

See State v. Hall, 2d Dist. Miami No. 97 CA 22, 1997 WL 691509, *1 (Oct. 24, 1997),

citing Newcomb v. Dredge, 105 Ohio App. 417, 152 N.E.2d 801 (2d Dist.1957), paragraph

seven of the syllabus (“[i]f a trial court has stated an erroneous basis for its judgment, an

appellate court will affirm the judgment if it is legally correct on other grounds, that is,

when it achieves the right result for the wrong reasons”). Accord State v. Handcock, 2d

Dist. Clark No. 2016-CA-3, 2016-Ohio-7096, ¶ 14; State v. Gibson, 2d Dist. Champaign

No. 2016-CA-12, 2017-Ohio-691, ¶ 19.

{¶ 34} Rice’s third assignment of error is overruled.
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Fourth Assignment of Error

{¶ 35} Under his fourth assignment of error, Rice challenges the trial court’s

decision to impose consecutive sentences. Although Rice concedes that the trial court

made the consecutive-sentences findings required by R.C. 2929.14(C)(4), he claims that

those findings were unsupported by the record. We disagree.

{¶ 36} When reviewing felony sentences, appellate courts must apply the standard

of review set forth in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-

Ohio-1002, 59 N.E.3d 1231, ¶ 7. Pursuant to the plain language of R.C. 2953.08(G)(2),

this court may vacate or modify Rice’s sentence “only if it determines by clear and

convincing evidence that the record does not support the trial court’s findings under

relevant statutes or that the sentence is otherwise contrary to law.” Id. at ¶ 1. One of

the relevant statutes referred to in R.C. 2953.08(G)(2) is the statute governing the

imposition of consecutive sentences, R.C. 2929.14(C)(4). Pursuant to R.C.

2929.14(C)(4), a trial court may impose consecutive sentences if it finds that: (1)

consecutive service is necessary to protect the public from future crime or to punish the

offender; (2) consecutive sentences are not disproportionate to the seriousness of the

offender's conduct and to the danger the offender poses to the public; and (3) one or more

of the following three findings are satisfied:

(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
 -16-

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).

{¶ 37} “[A] trial court is required to make the findings mandated by R.C.

2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing

entry, but it has no obligation to state reasons to support its findings.” State v. Bonnell,

140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus. “[W]here a trial court

properly makes the findings mandated by R.C. 2929.14(C)(4), an appellate court may not

reverse the trial court’s imposition of consecutive sentences unless it first clearly and

convincingly finds that the record does not support the trial court’s findings.” State v.

Withrow, 2016-Ohio-2884, 64 N.E.3d 553, ¶ 38 (2d Dist.). This is a very deferential

standard of review, as “the question is not whether the trial court had clear and convincing

evidence to support its findings, but rather, whether we clearly and convincingly find that

the record fails to support the trial court’s findings.” (Citation omitted.) Id. In applying

that standard of review, “the consecutive nature of the trial court’s sentencing should

stand unless the record overwhelmingly supports a contrary result.” (Citation omitted.)

Id. at ¶ 39.
 -17-

{¶ 38} In this case, there is no dispute that the trial court made the consecutive-

sentence findings required under R.C. 2929.14(C)(4) at the sentencing hearing and in the

sentencing entry. Rice, nevertheless, claims that the trial court’s consecutive-sentence

finding concerning his history of criminal conduct was unsupported by the record because

the trial court did not refer to the presentence investigation report (“PSI”) before imposing

consecutive sentences. The record, however, establishes that the trial court specifically

stated at the sentencing hearing that it had “reviewed the presentence investigation.”

Trans. Vol. II, p. 261. Contrary to Rice’s claim otherwise, “the trial court was not required

to set forth the findings of the presentence investigation report and was not required to

incorporate them into the sentencing journal entry.” State v. Sword, 8th Dist. Cuyahoga

No. 104477, 2017-Ohio-295, ¶ 14.

{¶ 39} Upon review, we do not find that the PSI clearly and convincingly failed to

support the trial court’s consecutive-sentences findings. The PSI indicated that Rice had

a lengthy criminal history. As a juvenile, Rice was adjudicated for aggravated menacing

in 2000 and assault in 2001. As an adult, Rice had acquired 16 misdemeanor

convictions and 6 felony convictions over a period of 13 years. The misdemeanors

included three convictions for criminal trespass, one conviction for assault, one conviction

for violating a protection order, and one domestic violence conviction. Rice’s felony

convictions included a burglary in 2010 and an aggravated robbery and intimidation of a

crime victim in 2014. The PSI also specifically stated that Rice had a history of violence

against his romantic partners. Given this information, we cannot say that the trial court’s

consecutive-sentences findings were unsupported by the record.

{¶ 40} For the foregoing reasons, Rice’s fourth assignment of error is overruled.
 -18-

Conclusion

{¶ 41} Having overruled all assignments of error raised by Rice, the judgment of

the trial court is affirmed.

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

DONOVAN, J. and HALL, J., concur.

Copies sent to:

Mathias H. Heck, Jr.
Lisa M. Light
J. David Turner
Hon. Gerald Parker