State v. Gibson

[Cite as State v. Gibson, 2021-Ohio-3614.]

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

:
STATE OF OHIO :
: Appellate Case No. 28769
Plaintiff-Appellee :
: Trial Court Case No. 2019-CR-3197
v. :
: (Criminal Appeal from
RICHARD J. GIBSON : Common Pleas Court)
:
Defendant-Appellant :

...........

OPINION

Rendered on the 8th day of October, 2021.

...........

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, 5th Floor, Dayton, Ohio
45422
Attorney for Plaintiff-Appellee

JOHNNA M. SHIA, Atty. Reg. No. 0067685, P.O. Box 145, Springboro, Ohio 45066
Attorney for Defendant-Appellant

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

HALL, J.
 -2-

{¶ 1} Richard J. Gibson was convicted in the Montgomery County Court of

Common Pleas on 16 counts of rape of a child under the age of 13 following a jury trial.

The trial court sentenced Gibson to an aggregate sentence of 160 years to life in prison.

{¶ 2} Gibson appeals from his convictions, raising the sufficiency and manifest

weight of the evidence, the trial court’s exclusion of impeachment evidence, and the

legality and length of his sentence. Finding no reversible error, we affirm.

I. Factual and Procedural Background

{¶ 3} The evidence presented at trial showed that Gibson and his former wife

Tonya Molden (they were divorced in 2015) lived at Penn Garden Apartments in

Riverside, Ohio, from March 1998 until December 2010, when they moved into the

basement of Tonya’s mother’s house. Until February 2013, Gibson worked for Penn

Gardens as a property manager and then in maintenance. In May 2010, nine-year-old

T.R. moved into an apartment below Gibson’s with her grandmother and the

grandmother’s husband, where they lived until April 2013, when T.R. was 12 years old.

{¶ 4} Gibson met T.R. when she became friends with his grandson, J.B., the son

of Tonya’s daughter Candice Molden. J.B. lived with his mother elsewhere, but he would

stay with Gibson and Tonya on the weekends and on days Candice worked. At first,

Gibson and T.R. were together only when J.B. was also around. But later Gibson started

spending time alone with T.R. Gibson also began taking T.R. places alone, like his

mother-in-law’s house, school, dance class, the movies, and restaurants.

{¶ 5} T.R. testified at trial that their relationship started out positively but then

changed. Gibson started getting physically close to her, being physically affectionate and

touching her where he shouldn’t. The touching turned sexual and led to further sexual
 -3-

conduct, including intercourse, cunnilingus, and fellatio. T.R. said that most times that

they had sex, Gibson would lay her down, get on top of her, and put his penis into her

vagina. She said that he always wore a condom because, he told her, he didn’t want her

to get pregnant because he could go to jail. T.R. testified that even at trial, five years later,

when she thought of this abuse, she could picture him on top of her, penetrating her and

grunting, which she said was disgusting. T.R. said that the intercourse was painful, both

physically and emotionally. When he would make her fellate him, T.R. testified, he would

take his belt off and pull down his pants a little and tell her to open her mouth. He would

lay down or stand and would use his hands to direct her head, telling her exactly what he

wanted her to do. The encounters would end with Gibson ejaculating into a paper towel.

T.R. testified that, when he performed cunnilingus on her, Gibson would lay her down,

take her pants and underwear off, open her legs, and put his head down there and lick

her vagina. Sometimes, she said, he would put his finger into her vagina.

{¶ 6} T.R. testified that these encounters took place countless times in Gibson’s

mother-in-law’s house, in his apartment, in her apartment, and in the Penn Gardens rental

office. At his mother-in-law’s house, Gibson would sneak her into the basement, telling

her to be quiet. There, Gibson would often tell T.R. to take off her clothes and lay on the

couch, while he took his pants off, put a condom on, and had sex with her. One specific

incident T.R. recalled was after her grandfather’s funeral. T.R. had gotten home and was

sitting outside, wearing an orange outfit with a skirt and shirt that her grandmother had

bought for her. Gibson pulled up in his van, told her to get in, and took her to his mother-

in-law’s house. He told her to be quiet when they got into the house and to go downstairs

and he’d be down in a minute. When Gibson came downstairs, he laid T.R. down on the
 -4-

floor and put a pillow under her head so as to not mess up her hair. He took off her

underwear and put his mouth on her vagina. Gibson then put on a condom, and they had

sex. When he was done, he took off the condom and flushed it down the toilet. Gibson

told T.R. that he flushed the condoms because he didn’t want anyone to see them in the

trash can.

{¶ 7} T.R. testified that, in Gibson’s apartment, the encounters would occur in the

living room, one of the bedrooms, or the kitchen. She said that in the kitchen Gibson

would lay her on the floor, open her legs, lay on top of her, and put his penis inside of her.

T.R. said that they also had sexual encounters in her apartment—in the living room or her

bedroom—when her grandparents were at work.

{¶ 8} T.R. testified that Gibson also engaged in sexual conduct with her in the Penn

Gardens rental office, which he had access to because he worked there. T.R. said that

before taking her inside, Gibson would make sure no one else was there. He would then

make her lay down on the desk and he would get on top of her and have sex with her.

The office door locked on its own, T.R. said, and Gibson would close the blind in the

office’s window.

{¶ 9} Corroborating T.R.’s testimony was the testimony of Tonya Molden (Gibson’s

former wife), Candice Molden (Tonya’s daughter), and several people who also lived at

Penn Gardens when these encounters were occurring. Each described what they saw as

an improperly close relationship between Gibson and T.R.

{¶ 10} Tonya testified that Gibson began spending time alone with T.R. in their

apartment or at her mother’s house. She said that Gibson’s relationship with T.R. affected

her relationship with him, as well as his relationship with his family, as he seemed
 -5-

obsessed with T.R. Tonya was a self-employed hairdresser and would leave the

apartment to give haircuts. Sometimes when she came back, T.R. and Gibson would be

alone in the apartment, usually playing video games. Tonya recalled a time while she and

Gibson were living with her mother that she had arrived home and Gibson was downstairs

alone with T.R. Tonya told him that her mother was not comfortable with the two of them

being there alone. Tonya testified that she told Gibson that his relationship with T.R. did

not look right and not to take T.R. to her mother’s house anymore. Tonya had also seen

T.R. in the rental office with Gibson.

{¶ 11} Candice did not like Gibson’s relationship with T.R. either. She testified that

she went to Penn Gardens once and tried to find Gibson. She went to the rental office

while he was working and knocked on the locked door. After a few moments, she started

knocking harder. A minute or two later, T.R. answered the office door. Candice saw

Gibson coming out of the bathroom and noticed that T.R. seemed a little jittery. Candice

asked what was going on and why the door was locked. She told Gibson that it was

inappropriate. Gibson responded that he was allowed to lock the door whenever he

wanted and that it was none of her business.

{¶ 12} Amber Vahle worked with Gibson for a short time at Penn Gardens. She

testified that whenever she saw Gibson, T.R. was there too. Vahle said that, in the rental

office, Gibson hung up artwork that T.R. had made and that he seemed obsessed and

affectionate with T.R., but not in a fatherly way. She said that when T.R. was with Gibson

he would not let her talk to other people, would get close to her face, and would always

be touching or hugging her. Vahle saw feminine hygiene products in the rental office

bathroom that Gibson had purchased for T.R.
 -6-

{¶ 13} Michael Jackson was a tenant and worked for Penn Gardens. He testified

that one day he went to the rental office looking for Gibson. Jackson knocked on the rental

office door a few times, but there was no answer. Peering through the office window,

Jackson saw Gibson walking while adjusting his pants. Gibson saw Jackson at the

window and immediately turned his back before opening the door. After talking to Gibson

for a few minutes, Jackson saw T.R. come from the back into the office. Jackson

described their relationship as inappropriate and not fatherly. He too said that every time

he saw Gibson, T.R. was there too. Jackson testified that, multiple times while sitting on

his patio in the evening, he had seen T.R. and Gibson alone in Gibson’s van. Jackson

would watch them pull up and then 10-15 minutes later, T.R. would get out and go inside.

Jackson also said that he saw Gibson pat T.R. on her behind multiple times.

{¶ 14} T.R. did not tell anyone about the abuse at the time. She testified that

Gibson told her that they were going to keep their encounters a secret and that she felt

that if she told, she would get in trouble. But five years later, in February 2018, she

happened to see Gibson at Walmart. He saw her too and stared at her before they parted

without speaking. The following month, T.R. woke up crying. She couldn’t stop and was

eventually taken by ambulance to Good Samaritan Hospital. There, she told a nurse that

she had been raped by a neighbor named “Richard” (she wasn’t sure of his last name)

when she was around seven or eight years old. T.R. described him as old and hairy with

a small dragon tattoo on his shoulder and said that he might have a tattoo on his leg. T.R.

was interviewed at CARE House and discussed what had happened with forensic

interviewers. She was referred to counseling, but she did not attend, because, she said,

she did not like talking about what had happened.
 -7-

{¶ 15} The State presented the testimony of Dr. Brenda Joyce Miceli, a pediatric

psychologist and expert in child sexual abuse and child psychology. Dr. Miceli testified

generally about the typical patterns she sees as a child sexual abuse psychologist and

about the wide range of behavioral characteristics displayed by child victims of sexual

abuse. Dr. Miceli said that even though most children are referred to counseling, they

often do not go. She also said that, in general, most children do not lie about sexual

abuse, and, if they do lie, they tend to have motivation to lie, like to get out of trouble. Dr.

Miceli said that she did not have any contact with T.R. and did not review any reports

about this case. (T.R. was not her patient.) She noted that not every case is the same but

that most cases of childhood sexual abuse involve delayed disclosure and that many

victims are adults before they tell anyone, if they tell anyone.

{¶ 16} Detective Travis Abney, who worked for the City of Riverside Police

Department, was assigned to this case. He testified that since this was a delayed-

disclosure case, his investigation focused on trying to corroborate the time-frames in

which T.R. said the rapes occurred, talking to people who knew her and Gibson to

determine if Gibson had access to her. Abney was able to verify with many people and

family members that both T.R. and Gibson had lived at Penn Gardens, that Gibson had

worked there and had access to the rental office, and that T.R. had been to Gibson’s

mother-in-law’s house. Detective Abney said that he came across photos on Gibson’s

Facebook page showing T.R.’s name tattooed on Gibson’s arm, which Abney found

chilling. He testified that he had a lot of training and experience investigating sexual

crimes and that it was his experience that abusers keep souvenirs or mementos of their

victims.
 -8-

{¶ 17} After the State rested, Gibson presented his defense. First, he presented

the testimony of Alissa Mason, a friend and tenant at Penn Gardens. She testified that

her daughter would play with J.B. and T.R. and that T.R. would often come to her

apartment. Mason testified that she saw Gibson around T.R. quite often but did not see

anything unusual about their relationship. She said that it seemed to her like Gibson was

trying to be a father figure to T.R. Mason never saw Gibson touch T.R. inappropriately,

but she did see him hug and high-five her.

{¶ 18} Gibson himself then took the stand. He denied ever engaging in any sexual

conduct with T.R. He said that he befriended T.R. after she and his grandson J.B. became

friends. Gibson said that a bond was soon created between them and that she would

follow him around. He testified that he tried to be a father figure to her because he wanted

her to have a better life. Gibson claimed that he had been alone with T.R. outside only

and that they had never been alone together inside. Gibson did admit that he took her

places alone, like dance classes and restaurants. Gibson explained that he got the tattoo

of her name (and his grandson’s) “so he had them with him anytime he did something

good.” (Vol. II Tr. 288, 296.) Gibson said that T.R. was simply wrong about numerous

things: he never did any of the things to her that she alleged; they were never alone inside

anywhere; he never told her to not talk about the things he was doing to her; and he never

said anything about condoms or getting her pregnant. Gibson said he had no tattoo on

his leg but admitted that he was hairy and had a small dragon tattoo on his shoulder

blade.

{¶ 19} Gibson was indicted on 16 counts of rape under R.C. 2907.02(A)(1)(b) (less

than thirteen years of age). The jury found him guilty on all counts. On March 19, 2020,
 -9-

the trial court sentenced him to a mandatory prison term of 10 years to life on each count

and ordered that he serve the terms consecutively, for an aggregate sentence of 160

years to life in prison.

{¶ 20} Gibson appeals.

II. Analysis

{¶ 21} Gibson presents four assignments of error. The first challenges the

sufficiency and manifest weight of the evidence. The second challenges the trial court’s

exclusion of extrinsic evidence of a prior inconsistent statement made by T.R. And the

third and fourth assignments of error challenge his prison sentence.

A. Sufficiency and Weight of the Evidence

{¶ 22} The first assignment of error alleges:

The Evidence Presented at Trial was Insufficient and Against the Manifest

Weight of the Evidence to Sustain Gibson’s Convictions.

{¶ 23} R.C. 2907.02(A)(1)(b) pertinently provides that “[n]o person shall engage in

sexual conduct with another who is not the spouse of the offender” when “[t]he other

person is less than thirteen years of age.” The statutory definition of “sexual conduct”

includes “vaginal intercourse,” “fellatio, and cunnilingus,” and “the insertion, however

slight, of any part of the body * * * into the vaginal or anal opening of another.” R.C.

2907.01(A).

{¶ 24} Each of the 16 rape counts alleged that Gibson engaged in one of four types

of sexual conduct with T.R.—vaginal intercourse, vaginal penetration, cunnilingus, or

fellatio—at one of four locations—Gibson’s apartment, T.R.’s apartment, the rental office,

or Gibson’s mother-in-law’s house. There was no dispute as to T.R.’s age. The issue in
 -10-

this case was whether Gibson engaged in sexual conduct with her. Gibson argues that

the evidence was insufficient, largely because T.R.’s testimony about the sexual conduct,

he says, merely parroted the statutory language. Gibson’s manifest-weight argument

attempts to show that the jury should not have believed T.R.’s claims of rape.

{¶ 25} We consider both evidentiary challenges together in our analysis. “Although

sufficiency and manifest weight are different legal concepts, manifest weight may

subsume sufficiency in conducting the analysis; that is, a finding that a conviction is

supported by the manifest weight of the evidence necessarily includes a finding of

sufficiency.” (Citations omitted.) State v. McCrary, 10th Dist. Franklin No. 10AP-881,

2011-Ohio-3161, ¶ 11. “Consequently, ‘a determination that a conviction is supported by

the weight of the evidence will also be dispositive of the issue of sufficiency.’ ” State v.

Curtis, 2020-Ohio-4152, 157 N.E.3d 879, ¶ 44 (2d Dist.), quoting State v. Braxton, 10th

Dist. Franklin No. 04AP-725, 2005-Ohio-2198, ¶ 15. Accordingly, our review of the weight

of the evidence also suffices to determine Gibson’s sufficiency challenge.

{¶ 26} “To evaluate a claim that a jury verdict is against the manifest weight of the

evidence, we review the entire record, weigh the evidence and all reasonable inferences,

consider the credibility of witnesses, and determine whether in resolving conflicts in the

evidence, the jury clearly lost its way and created such a manifest miscarriage of justice

that we must reverse the conviction and order a new trial.” State v. Wilks, 154 Ohio St.3d

359, 2018-Ohio-1562, 114 N.E.3d 1092, ¶ 168, citing State v. Thompkins, 78 Ohio St.3d

380, 387, 678 N.E.2d 541 (1997), citing State v. Martin, 20 Ohio App.3d 172, 175, 485

N.E.2d 717 (1st Dist.1983).
 -11-

{¶ 27} T.R. testified that Gibson engaged in vaginal intercourse, fellatio, and

cunnilingus with her and put his finger into her vagina. And she testified that he did each

of these things in his apartment, in her apartment, in the apartment office, and at his

mother-in-law’s house. T.R. gave many details about these encounters, beyond simply

stating that he did each of the sexual acts. The testimony of the State’s other witnesses

tended to corroborate T.R.’s testimony. Gibson testified at trial that T.R. was wrong and

that he did not engage in any sexual conduct with her. Ultimately, the jury believed T.R.

over Gibson.

{¶ 28} “The credibility of the witnesses and the weight to be given to their testimony

is a matter for the trier of facts, the jury here, to resolve.” State v. White, 2d Dist.

Montgomery No. 20324, 2005-Ohio-212, ¶ 65, citing State v. DeHass, 10 Ohio St.2d 230,

227 N.E.2d 212 (1967). “This court will not substitute its judgment for that of the trier of

facts on the issue of witness credibility unless it is patently apparent that the trier of facts

lost its way in arriving at its verdict.” (Citation omitted.) Id. at ¶ 67. Because witness

credibility is a matter for the trier of fact to resolve, a jury does not lose its way simply

because it chooses “to believe the State’s witnesses and disbelieve Defendant, which it

was entitled to do.” Id. at ¶ 69. The evidence here was clearly sufficient to find Gibson

guilty on all the rape charges. The only real argument left to Gibson was that T.R. was

lying. And that is the conclusion that his manifest-weight argument urges, based on

various inconsistencies and conflicts in her testimony.

{¶ 29} Gibson points out that T.R. told the nurse at the hospital that the abuse

happened when she was seven or eight years old, which was before she had met Gibson.

Moreover, he argues that T.R. described her abuser as having a tattoo on his leg, which
 -12-

he did not have; T.R. also said that he had a tattoo of a small dragon on his shoulder, but

his tattoo was on his shoulder blade. In our view, none of these inconsistencies rendered

T.R.’s testimony unbelievable. At trial, T.R. admitted that she was wrong about when the

abuse happened. As to her physical description of Gibson, T.R. told the nurse that her

abuser’s first name was “Richard” and that he was old and hairy, which Gibson admitted

he was. While she was mistaken about the leg tattoo, Gibson is caviling when he brings

up her description of his dragon tattoo’s location.

{¶ 30} Gibson also argues that T.R.’s articulation of how each sexual act occurred

was generic. In her testimony, T.R. repeatedly said that Gibson had engaged in four types

of sexual conduct with her in each of four places. Gibson argues that she could not

articulate and identify each sexual act at each location without being led by the

prosecutor; she was able only to generally describe the act itself (e.g., penis in vagina,

penis in her mouth, mouth on her vagina, and fingers in her vagina). T.R. was general

and repetitive, says Gibson, about how each act occurred. Gibson also points out that

T.R. could not remember when the acts occurred—whether during the spring or winter,

the summer or fall, during school or after school, or whether she was wearing her school

uniform or regular clothing. We don’t think that any of this was significant and see no

problem with T.R. testimony as to how and when the sexual conduct occurred.

{¶ 31} Gibson also argues that T.R.’s initial disclosure was not credible. He says

that her claims of abuse were not reliable and were simply based on a bad dream. This

argument is belied by T.R.’s testimony describing the sexual encounters. Gibson points

out that T.R. did not say anything to anyone about the abuse for five years, but the

delayed disclosure was not unusual. Dr. Miceli explained that many people who are
 -13-

victims of childhood sexual abuse delay their disclosure for more than two years, and

even until adulthood, if they ever disclose the abuse. T.R. herself explained that she did

not want anyone to know about the abuse, because even five years later, she still felt

guilty for what had happened.

{¶ 32} After considering all of Gibson’s arguments, we are not convinced that the

jury was wrong to believe T.R. This is not the “ ‘exceptional case in which the evidence

weighs heavily against the conviction.’ ” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d

541, quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. We conclude that the jury

neither lost its way nor created a miscarriage of justice in finding Gibson guilty of the rape

charges.

{¶ 33} The first assignment of error is overruled.

B. Extrinsic evidence of a prior inconsistent statement

{¶ 34} The second assignment of error alleges:

The Trial Court abused its discretion when it sustained the State’s objection

to Defense counsel’s evidence of a prior inconsistent statement of the

complaining witness.

{¶ 35} Gibson contends that the trial court improperly excluded proper

impeachment evidence, specifically his testimony about a prior inconsistent statement

made by T.R.

{¶ 36} On cross-examination, T.R. testified that she never had a cousin teach her

about sex, never had a cousin make her watch her have sex, and never told Gibson this:

Q: Okay. You also were asked the question about you didn’t—well,

you were told—you were asked if did you know a lot about sex, and then
 -14-

you said no, and then you were asked did Mr. Gibson teach you about sex,

and you answered yes. Is that what you said?

A: Yes.

Q: So when this stuff is happening to you, you’d never had any

sexual experience at this point?

A: Never.

Q: Okay. You’d never had a cousin teach you.

A: Never.

Q: You’d never had a cousin make you watch her have sex with a

boy?

A: No.

Q: Did you ever make those statements to Mr. Gibson?

A: No.

Q: You never made statements—

A: No.

Q: —to him that your cousin—that your cousin had made you do that.

A: I never—no.

(Vol. I Tr. 97.)

{¶ 37} Later, defense counsel asked Gibson on direct examination, “Did [T.R.] ever

tell you that her cousin taught her about sex?” (Vol. II Tr. 289.) The State objected to the

question as calling for hearsay. At a sidebar, defense counsel explained that the question

was intended to elicit evidence of T.R.’s prior inconsistent statement, “[b]ecause I asked

her directly if she made this statement to him and she denied it.” (Id. at 290.) The State
 -15-

also mentioned the rape-shield statute. The trial court agreed that the questioning called

for hearsay as well as testimony that violated the rape-shield statute.

{¶ 38} As an initial matter, Gibson argues that the trial court incorrectly concluded

that the testimony was inadmissible under the rape-shield statute. The State agrees, and

so do we. The testimony did not concern T.R.’s past sexual activity but only that she had

told Gibson that she was aware of what sex was because she had observed her cousin

engaging in sexual activity.

{¶ 39} As for impeachment, Gibson could attack T.R.’s credibility by showing that

she had contradicted herself. See Evid.R. 607(A). He could present extrinsic evidence of

her prior inconsistent statement if two things were true:

(1) If the statement is offered solely for the purpose of impeaching

the witness, the witness is afforded a prior opportunity to explain or

deny the statement and the opposite party is afforded an opportunity

to interrogate the witness on the statement or the interests of justice

otherwise require;

(2) The subject matter of the statement is one of the following:

(a) A fact that is of consequence to the determination of the

action other than the credibility of a witness[.]

Evid.R. 613(B). See State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d

508, ¶ 125 (the rule “specifically contemplates the admission of extrinsic evidence of a

prior statement under the circumstances outlined in Evid.R. 613(B)”).

{¶ 40} It appears that the trial court determined that the excluded testimony was

not being offered solely for the purpose of impeaching T.R., making it inadmissible
 -16-

hearsay. Be that as it may, we agree with the State that Gibson’s testimony was properly

excluded because it regarded a collateral matter. The subject matter of T.R.’s alleged

statement that her cousin taught her about sex concerns how, or from whom, T.R. learned

about sex, whether from her cousin or from Gibson. But this was not a fact of

consequence to the determination of whether Gibson raped T.R., because the fact did

not make whether he did so more or less likely. We see no abuse of discretion here. See

State v. Shaffer, 114 Ohio App.3d 97, 102, 682 N.E.2d 1040 (3d Dist.1996) (“[t]he

decision whether to admit a prior inconsistent statement which is collateral to the issue

being tried and pertinent to the credibility of a witness is a matter within the sound

discretion of the trial judge”).

{¶ 41} Gibson argues that he was prejudiced by the court’s ruling because the

credibility of the key witness was at issue. But even assuming that the trial court should

have allowed Gibson’s testimony on this matter, and that Gibson would have answered

that T.R. did make the statement to him, we are confident that it would not have changed

the jury’s verdict. Moreover, there were other inconsistencies in T.R.’s testimony that

potentially affected her credibility, which we discussed in our review of the manifest weight

of the evidence. We conclude that evidence of this particular inconsistency would not

have led the jury to find Gibson not guilty.

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

C. The sentence

{¶ 43} The third and fourth assignments of error allege, respectively:

The Record does not Support the Trial Court’s Excess Sentence.

The Record does not Support Consecutive Sentences.
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{¶ 44} R.C. 2953.08(G)(2) gives the standard for reviewing felony sentences:

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:

(a) That the record does not support the sentencing court's findings

under division * * * (C)(4) of section 2929.14 * * *;

(b) That the sentence is otherwise contrary to law.

“ ‘This is an extremely deferential standard of review.’ ” State v. Rodeffer, 2013-Ohio-

5759, 5 N.E.3d 1069, ¶ 31 (2d Dist.), quoting State v. Venes, 2013-Ohio-1891, 992 N.E.2d

453, ¶ 21 (8th Dist.). The clear-and-convincing standard in the statute “ ‘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.’ ” Id. at ¶ 31, quoting Venes at ¶ 21.

{¶ 45} “[A] sentence is not contrary to law when the trial court imposes a sentence

within the statutory range, after expressly stating that it had considered the purposes and

principles of sentencing set forth in R.C. 2929.11, as well as the factors in R.C. 2929.12.”

Id. at ¶ 32, citing State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124,

¶ 18. “[N]either R.C. 2929.11 nor 2929.12 requires a trial court to make any specific

factual findings on the record.” State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169

N.E.3d 649, ¶ 19, citing State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d

381, ¶ 31; State v. Arnett, 88 Ohio St.3d 208, 215, 724 N.E.2d 793 (2000). “R.C.

2953.08(G)(2)(b) * * * does not provide a basis for an appellate court to modify or vacate
 -18-

a sentence based on its view that the sentence is not supported by the record under R.C.

2929.11 and 2929.12.” Id. at ¶ 39.

{¶ 46} Gibson’s sentence for each offense was within the statutory range and so

each was authorized by law. See R.C. 2929.14(A)(1). Moreover, the trial court expressly

stated that it had considered the purposes and principles of sentencing set forth in R.C.

2929.11, as well as the factors in R.C. 2929.12. Collectively, this was enough to establish

that none of Gibson’s individual sentences was contrary to law.

{¶ 47} The law presumes that multiple sentences will be served concurrently. See

R.C. 2929.41(A). But R.C. 2929.14(C)(4) contains an exception that allows a trial court to

require consecutive service:

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:

***

(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
 -19-

of any of the courses of conduct adequately reflects the seriousness

of the offender’s conduct.

“In order to impose consecutive terms of imprisonment, 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, ¶ 37.

{¶ 48} “[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.). In other words, “the consecutive nature of the trial court’s sentencing

should stand unless the record overwhelmingly supports a contrary result.” Id. at ¶ 39,

citing State v. Kay, 2d Dist. Montgomery No. 26344, 2015-Ohio-4403, ¶ 26 (Hall, J.,

dissenting).

{¶ 49} Here, the trial court found that consecutive sentences were necessary in

this case. The court found that they were necessary to protect the public from future

crimes and to punish Gibson. The court further found that consecutive sentences were

not disproportionate to the seriousness of his conduct or the danger that he posed to the

public. Gibson committed at least two of the offenses as part of one or more courses of

conduct, and the harm caused by the offenses was so great or unusual that no single

prison term could adequately reflect the seriousness of his conduct.

{¶ 50} Gibson concedes that the trial court made the required statutory findings,

and we agree that there was no error in this regard. Rather, he says that the court failed
 -20-

to specify its reasons for the findings and contends that the evidence did not support

consecutive sentences. Gibson argues that a sentence of 160 years was excessive, not

proportionate to the crimes committed, and reflected a failure to consider any possibility

of rehabilitation. He points out that he had no criminal history, that he had not committed

any criminal offenses during his 40 years of his life, maintained employment, a home, and

a marriage.

{¶ 51} We agree that the sentence was extremely harsh. It is not the sentence that

the judges on this panel would have imposed if initial sentencing were our responsibility.

But what we might have done in the trial court’s place is not the standard of review. “ ‘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.’ ” (Emphasis sic.) State v. Overholser, 2d Dist. Clark No. 2014-CA-42, 2015-

Ohio-1980, ¶ 38 (Welbaum, J., dissenting), quoting State v. Venes, 2013-Ohio-1891, 992

N.E.2d 453, at ¶ 20. Indeed, “we must affirm the decision of the trial court even though

we might be persuaded that the trial court’s decision in this regard ‘constitutes an absence

of the exercise of discretion.’ ” State v. Withrow, 2016-Ohio-2884, 64 N.E.3d 553, at ¶ 37,

quoting State v. Adams, 2d Dist. Clark No. 2014-CA-13, 2015-Ohio-1160, ¶ 35 (Hall, J.,

dissenting).

{¶ 52} The trial court was not required to state reasons to support its consecutive-

sentence findings. In order to reverse the imposition of consecutive sentences, we must

clearly and convincingly find that the record did not support the court’s findings. The

record in this case makes the trial court’s finding that “consecutive sentences are not
 -21-

disproportionate * * * to the danger the offender poses to the public” debatable, but not

clearly wrong. That Gibson had no criminal history and by all accounts led a law-abiding

life before the events in this case makes what amounts to a life sentence troubling. But

this must be weighed against the gravity of what he did—repeatedly—to T.R. On the

whole, we cannot say that the record in this case overwhelmingly shows that the trial

court’s consecutive-sentence findings were wrong.

{¶ 53} The third and fourth assignments of error are overruled.

III. Conclusion

{¶ 54} We have overruled each of the assignments of error presented. The trial

court’s judgment is affirmed.

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

TUCKER, P.J. and EPLEY, J., concur.

Copies sent to:

Mathias H. Heck, Jr.
Lisa M. Light
Johnna M. Shia
Hon. Mary E. Montgomery