State v. Snider

[Cite as State v. Snider, 2021-Ohio-348.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
WASHINGTON COUNTY

STATE OF OHIO, :
: Case No. 20CA5
Plaintiff-Appellee, :
:
v. : DECISION AND JUDGMENT
: ENTRY
STEPHEN MATT SNIDER, :
: RELEASED: 02/03/2021
Defendant-Appellant. :
_____________________________________________________________
APPEARANCES:

George J. Cosenza, Parkersburg, West Virginia for Appellant.

Nicole T. Coil, Washington County Prosecuting Attorney, for Appellee.
_____________________________________________________________

Wilkin, J.

{¶1} This is an appeal from a Washington County Court of Common Pleas

judgment entry that sentenced Appellant, Stephen Snider, to an eight-year

aggregate prison term for three counts of gross sexual imposition, in violation of

R.C. 2907.05(A)(4) and (C)(2), felonies of the third degree. After our review of

the record and the applicable law, we affirm the trial court’s sentencing entry.

BACKGROUND

{¶2} On November 6, 2019, the State charged Appellant with six counts of

gross sexual imposition (“GSI”) in violation of R.C. 2907.05(A)(4) & (C)(2) with

five counts involving one juvenile victim, and one count involving a second

juvenile victim, both were under the age of 13. Appellant initially pleaded not

guilty to the charges. However, on December 19th, the trial court held a hearing

during which Appellant pleaded guilty to three of the GSI counts. Appellant
Washington App. No. 20CA5 2

signed a written plea admitting guilt to GSI counts one, five, and six, with counts

one and five involving one juvenile victim, and count six involving the other

juvenile victim. In exchange, the State dismissed the remaining three counts.

The trial court issued a judgment accepting Appellant’s plea, and set a

sentencing hearing for January 13, 2020. The trial court ordered a presentence

investigation (“PSI”). At the January sentencing hearing, the trial court imposed

a five-year prison term for counts one and five, and a three-year prison term for

count six, with counts one and five to be served concurrently, but consecutive to

count six, for an aggregate eight-year-prison term. Subsequently, the trial court

issued a sentencing judgment entry. It is this judgment that Appellant appeals,

asserting a single assignment of error.

ASSIGNMENT OF ERROR

THE COMMON PLEA COURT OF WASHINGTON COUNTY OHIO ERRED
WHEN IT IMPOSED CONSECUTIVE SENTENCES UPON APPELLANT

{¶3} Appellant first argues that the trial court did not make the requisite

findings that the harm caused by Appellant’s offenses was so great or unusual in

order to impose consecutive sentences. He also asserts four additional

arguments: (1) the “facts” did not support consecutive sentences because the

trial court improperly concluded that any child molestation is “so great and

unusual” that no facts are needed to support consecutive sentences, (2) the

mere fact that the child is upset is not enough to support consecutive sentences,

(3) the trial court improperly “bootstrap[ped]” Appellant’s honesty in his PSI to

support consecutive sentences, and (4) his Ohio Risk Assessment System

(“ORAS”) score did not indicate recidivism.
Washington App. No. 20CA5 3

{¶4} In response, the State argues that Appellant has failed to clearly and

convincingly show that the trial court erred in imposing consecutive sentences.

The State argues that although Appellant argued “vigorously” at sentencing that

the trial court should not impose consecutive sentences, he failed to “object or

argue to the sentencing judge that the judge’s consecutive sentencing findings

were not supported by the record[;]” thus, he has waived all but plain error. The

State argues that Appellant’s “real focus” is on whether the record supports the

trial court’s findings that the harm was so serious it supported consecutive

sentences. The State argues the facts support that the Appellant’s abuse of the

victims was so great that the Appellant cannot show by clear and convincing

evidence that the trial court’s imposition of consecutive sentences was

unsupported by the record.

{¶5} While appellant asserts a single assignment of error, in support he

raises several arguments pertaining to his sentence that we will address

individually: (1) the trial court failed to make the findings required to impose

consecutive sentences, (2) the trial court’s finding - that the harm caused by

Appellant was so great or unusual that consecutive sentence were necessary -

was not supported by the record, (3) the trial court improperly relied on

Appellant’s confession from his PSI to find that he lacked remorse for his crimes,

and (4) that the trial court improperly discounted Appellant’s ORAS score in

imposing his sentence.

LAW AND ANALYSIS

1. Sentencing Standard of Review
Washington App. No. 20CA5 4

{¶6} “When reviewing felony sentences appellate courts must apply the

standard of review set forth in R.C. 2953.08(G)(2).” State v. Johnson, 4th Dist.

Adams No. 19CA1082, 2019-Ohio-3479, ¶ 7, citing State v. Marcum, 146 Ohio

St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1, 7. “R.C. 2953.08(G)(2)

provides that an appellate court may increase, reduce, modify, or vacate and

remand a challenged felony sentence if the court clearly and convincingly finds

either: (a) that the record does not support the sentencing court’s findings under”

applicable statutory sentencing provisions (e.g. R.C. 2929.14(C)(4)), or (b) “that

the sentence is contrary to law.” State v. Shankland, 4th Dist. Washington No.

18CA11, 18CA12, 2019-Ohio-404, ¶ 18-19, quoting R.C. 2953.08(G) and citing

Marcum at ¶ 23. Any findings required by applicable statutory sentencing

provisions and made by the sentencing court must still be supported by the

record. State v. Gray, 4th Dist. Scioto No. 18CA3857, 2019-Ohio-5317, ¶ 21.

And “ ‘ “a sentence is generally not contrary to law if the trial court considered the

R.C. 2929.11 purposes and principles of sentencing as well as the R.C. 2929.12

seriousness and recidivism factors, properly applied post[-]release control, and

imposed a sentence within the statutory range.” ’ ” State v. Day, 4th Dist. Adams

No. 19CA1085, 2019-Ohio-4816, ¶11, quoting State v. Perry, 4th Dist. Pike No.

16CA863, 2017-Ohio-69, 2017 WL 105959, ¶ 21, quoting State v. Brewer, 4th

Dist. Meigs No. 14CA1 2014-Ohio-1903, 11 N.E.3d 317, ¶ 38.

{¶7} “Clear and convincing evidence is ‘that measure or degree of proof

which * * * will produce in the mind of the trier of facts a firm belief or conviction

as to the facts sought to be established.’ ” State ex rel. Husted v. Brunner, 123
Washington App. No. 20CA5 5

Ohio St.3d 288, 2009-Ohio-5327, 915 N.E.2d 1215, ¶ 18, quoting Cross v.

Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the

syllabus.

It is important to understand that the “clear and convincing”
standard applied in R.C. 2953.08(G)(2) is not discretionary. In
fact, R.C. 2953.08(G)(2) makes it clear that “[t]he appellate
court's standard for review is not whether the sentencing court
abused its discretion.” As a practical consideration, this means
that appellate courts are prohibited from substituting their
judgment for that of the trial judge. It is also important to
understand that the clear and convincing standard used by R.C.
2953.08(G)(2) is written in the negative. It does not say that the
trial judge must have clear and convincing evidence to support
its findings. Instead, it is the court of appeals that must clearly
and convincingly find that the record does not support the court's
findings. In other words, the restriction is on the appellate court,
not the trial judge. This is an extremely deferential standard of
review. State v. King, 4th Dist. Lawrence No. 19CA10, 2020-
Ohio-1512, ¶ 9, quoting State v. Pierce, 4th Dist. Pickaway No.
18CA4, 2018-Ohio-4458 ¶ 7.

2. R.C. 2929.14(C)(4), Consecutive Sentences

{¶8} Appellant first argues that the trial court failed to make the proper

findings under R.C. 2929.14(C)(4) to impose consecutive sentences. We

disagree.

{¶9} “R.C. 2929.41(A) creates a presumption in favor of concurrent

sentences.” State v. Walker, 4th Dist. Gallia No. 19CA1, 2020-Ohio-617, ¶ 20

“In order to impose consecutive terms of imprisonment, a trial court must make

the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and

incorporate its findings into its sentencing entry, but the court has no obligation to

state reasons to support its findings.” State v. Blair, 4th Dist. Athens No.

18CA24, 2019-Ohio-2768, ¶ 52, citing State v. Bonnell, 140 Ohio St.3d
Washington App. No. 20CA5 6

209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus. Under “the tripartite procedure

set forth in R.C. 2929.14(C)(4),” a trial court must find that:

consecutive sentences are necessary to (1) 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) * * * the harm caused by two or more
multiple offenses was so great or unusual that no single
prison term for any of the offenses committed adequately
reflects the seriousness of the offender's conduct. State v.
Leonhart, 4th Dist. Washington No. 13CA38, 2014-Ohio-
5601, ¶ 58, citing State v. Baker, 4th Dist. Athens No.
13CA18, 2014-Ohio-1967, ¶ 36.

{¶10} “Although it is not necessary for a trial court to use talismanic words in

each step of its analysis to comply with R.C. 2929.14(C)(4), it must be clear from

the record that the trial court actually made the required findings.” Blair, 4th Dist.

Athens No. 18CA24, 2019-Ohio-2768, ¶ 53, citing Baker, 4th Dist. Athens No.

13CA18, 2014-Ohio-1967, ¶ 37. If a trial court makes these findings, then the

imposition of consecutive sentences is not contrary to law. State v. Terry, 2nd

Dist. Clark No. 2016-CA-65, 2017-Ohio-7266, ¶ 18.

a. The Trial Court Made the Findings Required by R.C. 2929.14(C)(4)

{¶11} At the sentencing hearing, and in its sentencing entry, the trial court

made the following findings:

The court further finds that the imposition of consecutive
sentences is necessary to protect the public from future crime or
to punish the defendant; and imposition of consecutive
sentences are not disproportionate to the seriousness of
defendant’s conduct and to the danger defendant poses to the
public; and at least two of the multiple offenses were committed
as part of one or more courses and the harm caused was so
great or unusual that no single prison term for any of the
offenses committed as part of the courses of conduct adequately
reflects the seriousness of that conduct. (Emphasis added.)
Washington App. No. 20CA5 7

These findings are clearly compliant with those required by R.C. 2929.14(C)(4),

so the trial court’s imposition of consecutive sentences is not contrary to law.

Terry at ¶ 18.

b. The Trial Court’s Findings Under R.C. 2929.14(C)(4)(b) Are Not Clearly

and Convincingly Lacking Record Support

{¶12} The Appellant also argues that the “facts” did not support

consecutive sentences because the trial court improperly concluded that any

child molestation is “so great and unusual” that no additional facts are needed to

support consecutive sentences. The Appellant further alleged the mere fact that

the child is upset is not enough to support consecutive sentences. In other

words, Appellant argues that the trial court’s finding - that the harm caused the

victims in this case was so great or unusual that no single prison term was

sufficient - was not supported by the record. We disagree.

{¶13} At the sentencing hearing in the case at bar, the trial court stated:

[A]s far as making this more serious than the norm, I’m going to
find the mental suffered by the victims of the offense due to the
conduct of the [Appellant] was exacerbated because of the age
of the victims here. And let’s face it: Their lives are destroyed.
You know, there’s nothing we can do here to fix that. I mean, for
the rest of their lives, they’re going to suffer injury.

Also find the victim of the offense suffered serious
psychological harm as a result of the offense. Going to find that
the [Appellant’s] relationship with the victim facilitated the
offense, which makes it more serious than the norm.

{¶14} The victims, KM and CS, were cousins and both were of

elementary-school age. KM was the daughter of Appellant’s fiancé. Appellant

abused KM multiple times by rubbing her vagina under her clothing, sometimes
Washington App. No. 20CA5 8

while simultaneous touching himself. It appears that Appellant had access to KM

because she, her mother, and Appellant lived together.

{¶15} Appellant also abused CS once when she came to stay overnight

with KM. Appellant abused CS by rubbing her vagina, while he watched a video

of two women having sex on his phone, and subsequently uploaded another sex

video onto the victim’s phone. She told Appellant that his action made her

“uncomfortable,” but stated that “she was scared to tell her grandmother.”

{¶16} Law enforcement interviewed KM about the abuse. During the

interview, KM “appeared nervous and was chewing and sucking on a string from

the hooded sweatshirt she had on her lap.” After KM stated that she had been

abused more than five times, she said she thought she was going to get in

trouble for telling and began to cry. KM said that Appellant told her that she

needed to keep the abuse a secret, and she was too scared to say anything. KM

also said that she was “too scared” to tell Appellant not to touch her. KM stated

that CS hardly talks to her anymore and doesn’t want to come back to visit until

Appellant is in jail. KM broke down crying as she made this statement.

{¶17} Based on the aforementioned, we cannot clearly and convincingly

find that the record does not support the trial court's findings of “great or unusual”

harm finding under R.C. 2929.14(C)(4)(b). See State v. Eager, 8th Dist.

Cuyahoga No. 7–15–02, 2015-Ohio-3525, ¶ 21 (Court of Appeals affirmed

consecutive sentences where Appellant pleaded guilty to four of seven counts of

GSI that “were committed as part of a course of conduct, which resulted in great

or unusual harm” by “ ‘placing ‘his hand in [the] pants and underwear, [and] then
Washington App. No. 20CA5 9

rubb[ing] the vagina’ of the eight-year-old daughter of his girlfriend with whom

[Appellant] shared a home.”).

2. Trial Court Did Not Abuse Its Discretion In Considering Appellant’s PSI

{¶18} Appellant’s third argument asserts that the trial court improperly

considered Appellant’s confession as set out in his PSI to assist it in finding that

Appellant was not remorseful for his crimes. We disagree.

{¶19} “R.C. 2947.06 permits a trial court to order a PSI or psychological

report to aid the court in sentencing.” State v. Ellis, 8th Dist. Cuyahoga No.

98538., 2013-Ohio-1184, ¶ 42. R.C. 2951.03(A) lists various factors that should

be included in presentence investigation reports [including] the circumstances of

the offense and the criminal record, social history, and present condition of the

defendant * * *.” State v. Slider, 4th Dist. No. 93 CA 26, 1994 WL 224212, at *2

(May 20, 1994). A “trial court may evaluate and rely on the sentencing factors in

the PSI report using its own personal discretion.” State v. Cole, 11th Dist.

Crawford No. 3-01-08, 2001-Ohio-2273, accord State v. McCoy, 4th Dist. Gallia

No. 19CA4, 2020-Ohio-3088, ¶ 29. An “ ‘abuse of discretion’ connotes more

than an error of law or judgment; rather, it implies that the court's attitude was

unreasonable, arbitrary or capricious.” Mann v. Mann, 4th Dist. Allen No.

09CA38, 2011-Ohio-1646, ¶ 13, citing Blakemore v. Blakemore , 5 Ohio St.3d

217, 219, 450 N.E.2d 1140 (1983).

{¶20} Trial courts have relied upon information from a PSI report to assess

a defendant’s remorse, or lack thereof. See e.g. State v. Temple, 6th Dist. Lucas

No. L-18-10702019-Ohio-3503, ¶ 9 (“The court further noted that the
Washington App. No. 20CA5 10

presentence investigation report gave a different account of the facts and that

appellant's statement therein failed to demonstrate any remorse.”); State v.

Daniel, 5th Dist. Ashland No. 11–COA–0472012-Ohio-2952, ¶ 20 (“At the time he

was evaluated for the presentence investigation, appellant showed

no remorse for his crimes and had failed to follow through on substance abuse

treatment.”); State v. Kimbrough, 1st Dist. Hamilton No. C-180295, 2019-Ohio-

2561, ¶ 9 (“[T]he presentence-investigation report reflects that Mr. Kimbrough did

not believe that a crime had been committed or that he should have been

charged - probative of a lack of remorse.”).

{¶21} In the case at bar, Appellant wrote a letter of apology to the trial

court, and at the sentencing hearing, he again apologized: “I realize what I’ve

done wrong, and I’m here taking full responsibility for my actions.” Nevertheless,

after acknowledging that Appellant “had a small criminal history,” the trial court

stated: “[I] don’t believe that you’ve shown remorse. I believe, from looking at the

statement of fact, that first, you denied it, and then you minimized it, and then you

blamed the victims, and now you are basically having your family and friends

saying, hey, you’re a great guy, this isn’t like you.”

{¶22} We find that the trial court’s consideration of Appellant’s statements

regarding his culpability for the GSI offenses found in Appellant’s PSI was not

unreasonable, arbitrary or capricious. See Temple, at ¶ 9, Daniel, at ¶ 20, and

Kimbrough, at ¶ 9. Therefore, we hold that the trial court did not abuse its

discretion in relying on Appellant’s PSI to assist it in determining that Appellant

was not remorseful for his crimes.
Washington App. No. 20CA5 11

4. The Court Did Not Abuse It Discretion in Declining to Consider Appellant’s

ORAS Score

{¶23} Appellant’s fourth argument is that the trial court improperly

discounted his ORAS score, which purportedly predicted that Appellant’s

possibility of recidivism was low. We disagree.

{¶24} In 2001, the General Assembly enacted R.C. 5120.114 (A), which,

in pertinent part, provides that: “The department of rehabilitation and correction

shall select a single validated risk assessment tool for adult offenders. This

assessment tool shall be used by the following entities: * * * Common pleas

courts, when the particular court orders an assessment of an offender for

sentencing or another purpose.” R.C.5120.114. The Department of

Rehabilitation and Correction selected the ORAS. Ohio Adm.Code 5120-13-01.

The ORAS is used to “assess an adult offender's risk of reoffending and to

assess the offender's rehabilitative needs.” State v. Williams, 4th Dist. Jackson

No. 15CA3, 2016-Ohio-733, fn. 1. Notably, none of the seven categories that

ORAS assesses pertain to sex offenses. See State v. Saylor, 2nd Dist.

Champaign No. 2018-CA-14, 2019-Ohio-1025 (The ORAS assesses an offender

in seven categories: (1) criminal history, (2) education, employment, and financial

situation, (3) family and social support, (4) neighborhood problems, (5) substance

use, (6) peer associations, and (7) criminal attitudes and behavioral patterns.”).1

1
There are other tests that specifically assess recidivism of a sex offender, such as the “Static 99” test, which “is an
actuarial instrument designed to estimate the probability of sexual recidivism among adult males who have been
convicted of at least one sexual offense.” State v. Colpetzer, 8th Dist. Cuyahoga No. 79983, 2002-Ohio-967, *2. But the
Static 99 test appears to be used as one of several factors to in determining whether an offender, who has been convicted
of a sex offense, should be classified as a sexual offender. See State v. Morales, 153 Ohio App.3d 635, 795 N.E.2d 145
(1st. Dist. 2003). And, similar to ORAS, [t]he utility of the STATIC-99 evaluation as a diagnostic tool for individual risk
assessment is open to question.” State v. Ellison, 8th Dist. Cuyahoga No. 78256, 2002-Ohio-4024, ¶ 9.
Washington App. No. 20CA5 12

{¶25} “Despite ORAS having been designated as the ‘single validated risk

assessment tool for adult offenders,’ it ‘is a work in progress,’ and this

designation does not eliminate the discretion of * * * a court * * * evaluating the

rehabilitative needs of an offender.” State ex rel. Semenchuk v. Ohio Adult

Parole Auth., 10th Dist., Franklin No. 19AP-361, 2019-Ohio-4641, ¶ 20, quoting

State v. Jennings, 2d Dist. No. 2013 CA 60, 2014-Ohio-2307, ¶ 25, 28; see

also State v. Prater, 4th Dist. No. 18CA1069, 2019-Ohio-2745, fn. 5 (“[ORAS] is

an assessment tool which can be used at various points in the criminal justice

system to gather information and aid in informed decision-making.”). This court

has similarly recognized, “ ‘ORAS is a work in progress, and is not a litmus test

for sentencing.’ ” State v. Williams, 4th Dist. Jackson No., 2014-Ohio-4966, fn. 2,

quoting Jennings, at ¶ 28. Consequently, “ ‘at most, it [ORAS] may be one factor

in informing a trial court's discretion * * *. ’ ” State v. Lawson, 2nd Dist.

Champaign No. 2017-CA-28, 2018-Ohio-1532, 111 N.E.3d 98, fn. 2 (J. Froelich

Concurring), quoting Jennings, 2d Dist. Clark No. 2013-CA-60, 2014-Ohio-2307,

¶ 28.

{¶26} At the sentencing hearing, the trial court acknowledged Appellant’s

ORAS score, but found that “it was not set up for sex offenders,” and found it “not

to be accurate.” The trial court went on to find that Appellant’s “risk of

reoffending is actually very high,” and, later in the hearing, stated that “this was

just not three-time offenses; this is a serious course of conduct that’s been

happening over a long period of time.”
Washington App. No. 20CA5 13

{¶27} Because courts, including this one, have recognized ORAS is not a

litmus test for sentencing, let alone specifically intended to assess sexual

offenders, and Appellant was involved in a course of conduct in sexually abusing

minor victims, we find that the trial court’s decision to not consider Appellant’s

ORAS score as a factor in Appellant’s sentencing was not unreasonable,

arbitrary or capricious. Accordingly, we hold that the trial court did not abuse its

discretion in discounting Appellant’s ORAS score.

CONCLUSION

{¶28} In sum, we conclude that we do not clearly and convincingly find

that the trial court’s sentence is contrary to law, or was unsupported by the

record. We also conclude that the trial court did not abuse its discretion in its

consideration of Appellant’s PSI or ORAS score in sentencing Appellant.

Therefore, we overrule Appellant’s assignment of error, and affirm the trial court’s

sentencing entry.

JUDGMENT AFFIRMED.
Washington App. No. 20CA5 14

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed
to Appellant.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the
Washington County Common Pleas Court to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL
HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS
COURT, it is temporarily continued for a period not to exceed sixty days upon the
bail previously posted. The purpose of a continued stay is to allow Appellant to
file with the Supreme Court of Ohio an application for a stay during the pendency
of proceedings in that court. If a stay is continued by this entry, it will terminate at
the earlier of the expiration of the sixty-day period, or the failure of the Appellant
to file a notice of appeal with the Supreme Court of Ohio in the forty-five day
appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal
prior to expiration of sixty days, the stay will terminate as of the date of such
dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.

Smith, P.J. and Hess, J.: Concur in Judgment and Opinion.

For the Court,

BY: ______________________________
Kristy S. Wilkin, Judge

NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.