State v. Smith

[Cite as State v. Smith, 2023-Ohio-1613.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 1-22-40

v.

MATTHEW W. SMITH, OPINION

DEFENDANT-APPELLANT.

Appeal from Allen County Common Pleas Court
Trial Court No. CR 2020 0355

Judgment Affirmed in Part, Reversed in Part and Cause Remanded

Date of Decision: May 15, 2023

APPEARANCES:

William T. Cramer for Appellant

John R. Willamowski, Jr. for Appellee
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EPLEY, J.
{¶ 1} Defendant-appellant Matthew W. Smith appeals from his convictions

in the Allen County Court of Common Pleas on twelve counts of rape (victim under

age 13), five counts of rape by force or threat of force, and four counts of gross

sexual imposition (victim under age 13). Smith claims that his right to confront

witnesses was violated at trial by the admission of two of the children’s forensic

interviews, that two of his rape convictions were based on insufficient evidence, and

that errors occurred with his sentence. For the following reasons, the trial court’s

judgment is affirmed in part and reversed in part, and the matter is remanded for

resentencing on Counts 1, 2, 3, and 24.

I. Facts and Procedural History

{¶ 2} The victims of Smith’s offenses were his three step-daughters: H.B.

(born in 2007), Ab.B. (born in 2009), and Al.B. (born in 2012). The three girls

resided with their father, but they had parenting time with their mother every other

weekend and some other times. Smith met their mother in 2016, and she moved in

with him around February of 2017. The couple eventually married, and they lived

in multiple locations between 2017 and 2020, mostly in Allen County.

{¶ 3} In late August or early September 2020, Al.B. told her father that Smith

had been touching her. The girls’ father talked to his daughters and obtained a civil

protection order against his ex-wife and Smith. Ryan Pratt of Logan County

Children Services became involved, and he scheduled forensic interviews for all
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three girls. Pratt contacted Officer Chad Kunkleman, a juvenile investigator with

the Lima Police Department, and informed the officer about the allegations against

Smith and the planned interviews.

{¶ 4} On September 9, 2020, the girls were taken to Nationwide Children’s

Hospital in Columbus, Ohio, where they were separately interviewed by a forensic

interviewer and then received a medical examination. H.B., Ab.B., and Al.B. each

reported sexual abuse by Smith, and they said Smith told them that they would be

in trouble if they told anyone.

{¶ 5} During her interview, H.B. reported ongoing abuse by Smith. She

indicated that Smith repeatedly rubbed her chest and vaginal area, had her stroke his

penis, performed oral sex on her, and had her perform oral sex on him. Beginning

a few months before the interview, Smith began forcing H.B. to have vaginal

intercourse with him; she indicated this occurred more than ten times. At one point,

Smith had told H.B. that he would marry her when she turned 18 years old.

{¶ 6} Ab.B. revealed that, on several occasions, Smith had her rub his penis

while he rubbed her “monkey,” sliding his finger “through the crease.” Smith also

squeezed Ab.B.’s breast and buttocks. She said that Smith twice tried to put his

penis in her buttocks, but she clenched her butt cheeks.

{¶ 7} Al.B. told her interviewer that Smith repeatedly had her rub his penis,

that he repeatedly rubbed her “monkey,” that he once forced her to suck on his penis,

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and that he once put his penis in her buttocks and “kept pushing [her] down on it.”

{¶ 8} After reading the hospital reports, Officer Kunkleman consulted with

Detective Steven Stechschulte about the case. Kunkleman also prepared an arrest

warrant for Smith and a search warrant for his residence. On September 22, 2020,

pursuant to the warrants, Smith was arrested, and his home was searched.

{¶ 9} Detective Stechschulte twice interviewed Smith: first on the day of his

arrest and again the following day. Smith initially denied any sexual contact with

the children and suggested that their father had coerced them into making the

allegations. He later admitted to sexual conduct with H.B., although he denied

vaginal intercourse. At that time, Smith asserted that, “with the two younger ones,

there was no contact whatsoever.” By the end of the first interview, Smith admitted

that he performed oral sex on H.B. approximately 20 to 30 times, that she performed

oral sex on him “about the same amount, maybe less,” but at least 20 times, that

H.B. stroked his penis at least 30 times, and that he had stroked H.B. between her

lips (meaning, labia majora) approximately 15 times. Smith continued to deny

sexual contact with Ab.B. and Al.B.

{¶ 10} The second interview focused largely on Smith’s conduct with Ab.B.

and Al.B. Smith admitted to four or five instances where Ab.B. stroked his penis;

a couple of those times, Smith also rubbed Ab.B. between her lips. He stated that

Ab.B. performed oral sex on him one time. He acknowledged grabbing her buttocks

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but denied engaging in anal sex. Smith stated that there was only one occasion with

Al.B. that could be considered sexual with her, where she touched his penis. Smith

claimed that he was not sexually attracted to Ab.B. and Al.B. because they were

young children. With H.B., however, he felt that she was there for him and “got

confused.” Smith wrote an apology letter to the girls.

{¶ 11} In November 2020, Smith was charged in an 83-count indictment

with 59 counts of rape in violation of R.C. 2907.02(A)(1)(b), 10 counts of rape in

violation of R.C. 2907.02(A)(2), 10 counts of sexual battery in violation of R.C.

2907.02(A)(5), and 4 counts of gross sexual imposition in violation of R.C.

2907.05(A)(4). Many of the counts included an allegation that the victim was

compelled to submit by force or threat of force or that the victim was under 10 years

of age.

{¶ 12} In pretrial motions, Smith sought to suppress the statements he made

during his police interviews. After reviewing the video recordings of the two

interviews, the trial court denied the first motion to suppress. Smith withdrew his

second motion. Citing the Confrontation Clause of the Sixth Amendment and

hearsay rules, Smith also filed a motion in limine, seeking to prohibit the State from

introducing the recorded forensic interviews and from having any witness testify to

the girls’ out-of-court statements. After a hearing, the trial court denied Smith’s

motion.

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{¶ 13} A bench trial was held on June 21 and 22, 2022. Immediately before

the start of trial, the State dismissed numerous counts, and the matter proceeded on

26 counts: 19 counts related to H.B. (3 counts of gross sexual imposition, 5 counts

of sexual battery, and 11 counts of rape), 2 counts related to Ab.B. (both rape), and

5 counts related to Al.B. (4 counts of rape and 1 count of gross sexual imposition).

The State presented the testimony of three law enforcement officers, the two

forensic interviewers, and H.B. The prosecution also offered 28 exhibits, including

redacted video recordings of the girls’ forensic interviews and of Detective

Stechschulte’s two interviews with Smith. The videos were admitted over defense

counsel’s objection. Smith offered no evidence in his defense.

{¶ 14} On June 23, 2022, the trial court found Smith guilty of all offenses.

The court immediately proceeded to sentencing, where it merged the sexual battery

counts into Counts 10-14 and imposed the following sentences, all of which it

determined were mandatory terms:

Count Orig.# Offense Statute Degree Child Sentence
1 1 GSI 2907.05(A)(4) F3 H.B. 60 months
2 2 GSI 2907.05(A)(4) F3 H.B. 60 months
3 3 GSI 2907.05(A)(4) F3 H.B. 60 months
4 4 Rape 2907.02(A)(1)(b) F1 H.B. 25 years to
(force) life
5 5 Rape 2907.02(A)(1)(b) F1 H.B. 25 years to
(force) life
6 24 Rape 2907.02(A)(1)(b) F1 H.B. 25 years to
(force) life
7 25 Rape 2907.02(A)(1)(b) F1 H.B. 25 years to
(force) life

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8 44 Rape 2907.02(A)(1)(b) F1 H.B. 25 years to
(force) life
9 45 Rape 2907.02(A)(1)(b) F1 H.B. 25 years to
(force) life
10 54 Rape 2907.02(A)(2) F1 H.B. Minimum 11
years to
maximum of
16.5
11 55 Rape 2907.02(A)(2) F1 H.B. Minimum 11
years to
maximum of
16.5
12 56 Rape 2907.02(A)(2) F1 H.B. Minimum 11
years to
maximum of
16.5
13 57 Rape 2907.02(A)(2) F1 H.B. Minimum 11
years to
maximum of
16.5
14 58 Rape 2907.02(A)(2) F1 H.B. Minimum 11
years to
maximum of
16.5
20 74 Rape 2907.02(A)(1)(b) F1 Ab.B. Life in prison
(under 10) without
possibility of
parole
21 78 Rape 2907.02(A)(1)(b) F1 Ab.B. 25 years to
(force) life
22 79 Rape 2907.02(A)(1)(b) F1 Al.B. Life in prison
(under 10) without
possibility of
parole
23 80 Rape 2907.02(A)(1)(b) F1 Al.B. Life in prison
(under 10) without
possibility of
parole
24 81 GSI 2907.05(A)(4) F3 Al.B. 60 months

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25 82 Rape 2907.02(A)(1)(b) F1 Al.B. Life in prison
(under 10) without
possibility of
parole
26 83 Rape 2907.02(A)(1)(b) F1 Al.B. Life in prison
(under 10) without
possibility of
parole

The trial court ordered all counts relating to a particular child be served

concurrently, but that the three sets of charges be served consecutively – Counts 1

to 14 (aggregate 25 years to life) were to be served consecutively to Counts 20 and

21 (aggregate life without parole) and Counts 20 and 21 were to be served

consecutively to Counts 22 to 26 (aggregate life without parole). The court notified

Smith that he would be required to register as a Tier III sex offender.

{¶ 15} Smith appeals from his convictions, raising five assignments of error.

We will address them in a manner that facilitates our analysis.

II. Sufficiency of the Evidence on Counts 20 & 21

{¶ 16} In his second assignment of error, Smith claims that his convictions

on Counts 20 and 21 – the two rape counts concerning Ab.B. – were based on

insufficient evidence and, therefore, violated his right to due process.

{¶ 17} “An appellate court’s function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at

trial to determine whether such evidence, if believed, would convince the average

mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio

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St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, superseded by

state constitutional amendment on other grounds, State v. Smith, 80 Ohio St.3d 89,

684 N.E.2d 668 (1997). Consequently, “[t]he relevant inquiry is whether, after

viewing the evidence in a light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime proven beyond a

reasonable doubt.” Id.; State v. Troche, 3d Dist. Marion No. 9-22-18, 2023-Ohio-

565, ¶ 18.

{¶ 18} When reviewing claims based on the sufficiency of the evidence, we

are required to consider all the evidence admitted at trial, regardless of whether it

was admitted erroneously. See State v. Fleming, 2d Dist. Clark No. 2021-CA-40,

2022-Ohio-1876, ¶ 27, citing, e.g., State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-

593, 903 N.E.2d 284. Accordingly, we must consider the disputed recordings of the

forensic interviews in conducting our analysis.

{¶ 19} Counts 20 and 21 each involved a charge of rape in violation of R.C.

2907.02(A)(1)(b). Count 20 concerned digital penetration and included an

allegation that the victim was less than 10 years old. Count 21 concerned fellatio

and included an allegation that Smith purposefully compelled the victim to submit

by force or threat of force.

{¶ 20} R.C. 2907.02(A)(1)(b) is Ohio’s statutory rape statute, imposing strict

liability on a person who has sexual conduct with a child under the age of 13. State

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v. Alexander, 3d Dist. Allen No. 1-22-11, 2023-Ohio-123, ¶ 16, citing In re D.B.,

129 Ohio St.3d 104, 2011-Ohio-2671, 950 N.E.2d 528, ¶ 30. Under that statute,

“[n]o person shall engage in sexual conduct with another who is not the spouse of

the offender * * * when any of the following applies: * * * (b) The other person is

less than thirteen years of age, whether or not the offender knows the age of the

other person.” R.C. 2907.02(A)(1)(b).

{¶ 21} “Sexual conduct” is defined as “vaginal intercourse between a male

and female; anal intercourse, fellatio, and cunnilingus between persons regardless

of sex; and, without privilege to do so, the insertion, however slight, of any part of

the body or any instrument, apparatus, or other object into the vaginal or anal

opening of another.” R.C. 2907.01(A). “Penetration, however slight, is sufficient

to complete vaginal or anal intercourse.” Id. This court has repeatedly recognized

that if the force of an object, like a finger, causes a victim’s labia to spread, that is

sufficient penetration to constitute “sexual conduct” under R.C. 2907.02(A)(1)(b).

E,g, State v. McCoy, 3d Dist. Marion No. 9-18-23, 2020-Ohio-4511, ¶ 72; Alexander

at ¶ 38, fn.4, quoting State v. Sanchez-Sanchez, 8th Dist. Cuyahoga No. 110885,

2022-Ohio-4080, ¶ 125; State v. Carter, 3d Dist. Allen No. 1-21-19, 2022-Ohio-

1444, ¶ 99, fn. 9.

{¶ 22} Ab.B. did not testify at trial, but a redacted video recording of her

forensic interview was played for the court. See State’s Exhibit 24. During her

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interview, Ab.B. described an incident when Smith touched her while she rubbed

his penis. She indicated that Smith first touched her breasts, then slid down to her

“monkey,” and finally moved his hand back to “squish her butt cheek.” When asked

about how he touched her “monkey,” Ab.B. said that Smith put his hand in her pants

and began to rub it, touching her skin. She indicated that he put his finger “in the

middle of it” and start rubbing it; his finger slid “through the crease.”

{¶ 23} During his second interview with Detective Stechschulte, Smith

admitted to touching Ab.B. He stated that Ab.B. came into the room when he and

H.B. were touching each other and wanted to try. Smith indicated that Ab.B.

lowered her own pants and they “tried it.” Smith stated that he did not get hard, and

they stopped after a couple minutes because he was not aroused by it. Smith told

the detective that H.B. was in the room, talking with him as if nothing were

happening. When asked by Detective Stechschulte if he touched Ab.B. the same

way he touched H.B., i.e., by going slightly between the two lips and rubbing, Smith

responded affirmatively. Smith agreed with Ab.B.’s description of going “through

the crease.” Smith also told the detective about a similar incident, approximately a

week later, where Smith and Ab.B. again were rubbing each other. Smith identified

the address where he lived when these incidents occurred; Ab.B. was 9 years old for

two of the three months that they lived there. She told her forensic interviewer that

she was 8 or 9 years old when the abuse began and 10 years old when it ended.

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Construing the evidence in the light most favorable to the State, Smith’s and Ab.B.’s

statements were sufficient to establish rape, as alleged in Count 20.

{¶ 24} Ab.B. did not describe any incidents where she performed fellatio on

Smith. However, in his second interview with Detective Stechschulte, Smith told

the officer about a time when Ab.B. came into the room while H.B. was performing

oral sex on him. According to Smith, H.B. told her sister to “try it.” Smith indicated

that Ab.B. sucked on his penis for “about a minute” but stopped because she did not

like the taste. Smith’s admission was sufficient to prove that Smith committed rape

by means of fellatio.

{¶ 25} Count 21 also alleged that the victim was compelled to submit by

“force or threat of force.” “Force” is defined as “any violence, compulsion, or

constraint physically exerted by any means upon or against a person or thing.” R.C.

2907.01(A)(1). “A threat of force can be inferred from the circumstances

surrounding sexual conduct.” State v. Schaim, 65 Ohio St.3d 51, 600 N.E.2d 661

(1992), paragraph one of the syllabus; State v. Cook, 3d Dist. Union No. 14-19-26,

2020-Ohio-3411 ¶ 117.

{¶ 26} The force necessary to commit rape varies based on the respective

age, size and strength of the parties and their relation to each other. State v.

Eskridge, 38 Ohio St.3d 56, 58, 526 N.E.2d 304, (1988); Cook at ¶ 117. “[W]hen

the rape involves a child and that child’s parent, or person who stands in loco

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parentis, subtle and psychological forms of coercion sufficiently show force.” State

v. Shadoan, 4th Dist. Adams No. 03CA764, 2004-Ohio-1756, ¶ 21. “As long as it

can be shown that the rape victim’s will was overcome by fear or duress, the forcible

element of rape can be established.” Eskridge at 59. “A child’s will can be

overcome by fear and duress when [a parent] tells the child to do something, and

commands the child not to tell anyone about it.” State v. Dehner, 12th Dist.

Clermont No. CA2012-12-090, 2013-Ohio-3576, ¶ 19, citing Eskridge at 58.

{¶ 27} Although Smith suggested that Ab.B. was not forced to comply,

Ab.B. stated in her forensic interview that she would be in trouble if she told anyone.

She further said that if the girls did not do what Smith asked, he would get mad and

tell her mother that they were not bonding with him and then their mother would get

mad at them. Ab.B. was between eight and ten years old when the abuse occurred.

Given the respective ages of Smith and Ab.B. and Smith’s stepparent relationship

to her, Smith’s oral threats were sufficient to constitute force within the meaning of

R.C. 2907.01(A).

{¶ 28} Smith’s second assignment of error is overruled.

III. Admission of Forensic Interviews

{¶ 29} In his first assignment of error, Smith contends that his federal and

state rights to confront witnesses against him were violated by the admission of the

redacted video recordings of the forensic interviews of Ab.B. and Al.B., who did

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not testify at trial. Smith does not claim on appeal that the recordings constituted

inadmissible hearsay.

{¶ 30} The Confrontation Clause of the Sixth Amendment to the United

States Constitution provides that “[i]n all criminal prosecutions, the accused shall

enjoy the right * * * to be confronted with the witnesses against him.” Section 10,

Article I of the Ohio Constitution, which includes the right “to meet face to face,”

provides “no greater right of confrontation than the Sixth Amendment.” State v.

Self, 56 Ohio St.3d 73, 79, 564 N.E.2d 446 (1990).

{¶ 31} Under the federal Confrontation Clause, testimonial out-of-court

statements are prohibited, unless the witness is unavailable to testify and the

defendant has had a prior opportunity to cross-examine the witness. State v. Tench,

156 Ohio St.3d 85, 2018-Ohio-5205, 123 N.E.3d 955, ¶ 17; Crawford v.

Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

Crawford did not define “testimonial,” but it is generally understood that testimonial

statements are those made for “a primary purpose of creating an out-of-court

substitute for trial testimony.” Michigan v. Bryant, 562 U.S. 344, 131 S.Ct. 1143,

179 L.Ed.2d 93 (2011); State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9

N.E.3d 930, ¶ 40; State v. Bender, 3d Dist. Union No. 14-19-22, 2020-Ohio-722, ¶

10.

{¶ 32} In Arnold, the Ohio Supreme Court addressed whether statements

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made to interviewers at a child advocacy center were testimonial and thus

inadmissible pursuant to Confrontation Clause when the child was unavailable for

cross-examination at trial. State v. Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742,

933 N.E.2d 775. The Court noted that child advocacy centers are unique in that

multidisciplinary teams cooperate so that the child is interviewed only once. Id. at

¶ 33. Consequently, the interviews serve dual purposes: (1) to gather forensic

information needed by the team, and (2) to elicit information necessary for medical

diagnosis and treatment. The Supreme Court held that statements made to the

interviewer that served primarily a forensic or investigative purpose were

testimonial, whereas those made for medical diagnosis and treatment were not. Id.

at paragraphs one and two of the syllabus, ¶ 44. The Supreme Court noted that “the

fact that police officers watched the interview and that it was recorded does not

change the fact that the statements were necessary for [the child’s] medical

diagnosis and treatment. Similarly, the fact that information gathered for medical

purposes is subsequently used by the state does not change the fact that the

statements were made for medical diagnosis and treatment.” Id. at ¶ 43.

{¶ 33} Shortly after Arnold was rendered, this court affirmed the trial court’s

exclusion of a child’s statements that were made in an interview with a social worker

with Logan County Children Services. State v. Goings, 3d Dist. Logan No. 8-11-

03, 2012-Ohio-1793. In that case, the social worker testified that the purpose of the

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interview was to determine the veracity of the allegations and whether the child

required medical or emotional treatment. Based on the child’s statements during

the interview, the social worker recommended that the child be taken to the hospital,

but indicated it was not an emergency to do so. No information was forwarded to a

medical facility or medical professional, and the social worker was not working with

a medical professional; to the contrary, the social worker contacted the police

following the interview. We concluded that “nothing in the interview supports a

conclusion that any part of the interview was directed to medical diagnosis or

treatment[.]” Goings at ¶ 34.

{¶ 34} More recently, this court held that an interview conducted under

circumstances like those before us was for medical diagnosis and treatment. State

v. Speicher, 3d Dist. Union No. 14-13-17, 2020-Ohio-3845 (we did not address the

Confrontation Clause, because the child testified at trial.). There, the interview was

performed by a licensed social worker / medical forensic interviewer, and the

interviewer testified at a suppression hearing that she interviewed the child for the

purpose of medical diagnosis and treatment before the child was examined by a

physician; the physician observed the interview. Law enforcement was not present

during the interview, and the social worker was unaware whether law enforcement

had been notified of the allegations when the interview occurred.

{¶ 35} In the context of whether statements fell under Evid.R. 803(4), the

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medical diagnosis or treatment exception to the hearsay rule, we also have noted

that “[a] narrative account containing peripheral details as the victim recounts

abusive activities can be made for the primary purpose of medical diagnosis or

treatment.” Bender at ¶ 16, quoting State v. Warman, 12th Dist. Butler No.

CA2016-02-029, 2017-Ohio-244, ¶ 71 (Piper, J., concurring.). We held that a

sexual assault nurse’s recounting at trial of a rape victim’s narrative account of the

sexual assault was admissible as a statement made for the purpose of medical

diagnosis or treatment. Id.

{¶ 36} In this case, Ab.B. and Al.B. were interviewed by Celeste Prince, who

was employed as a “forensic interviewer and trafficked and exploited youth case

coordinator” by The Center for Family Safety and Healing, which is part of

Nationwide Children’s Hospital. The center is an outpatient clinic for the hospital

that houses the child advocacy center and other victim services. (Tr. 93.)

{¶ 37} Prince testified that the goal of a forensic interview is to “gather

information about suspected abuse or neglect for medical diagnosis and treatment,”

most often for sexual abuse. (Tr. at 94.) She stated that when conducting a forensic

interview, she speaks with doctors about the allegations prior to the interview, the

doctors observe the interviews, and she receives feedback from them during the

interview process about additional information that would be useful to them for their

subsequent medical exams. When interviewing for suspected sexual abuse, relevant

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information includes the body parts involved, the time frame of the alleged abuse,

the identity of the abuser, the relationship between the alleged abuser and the victim,

and whether threats had been made. After completing the interview and prior to the

child receiving a medical exam, Prince speaks with the medical professional about

the information received and answers any questions the medical professional might

have. She then writes a summation of the interview for the medical record. Prince

described the “neutral and open-ended approach” to questioning that she employs

as an interviewer, and she testified that she followed her interview procedure when

conducting the interviews of Al.B. and Ab.B.

{¶ 38} Officer Kunkleman testified that he was aware that interviews for the

girls had been scheduled at Nationwide Children’s Hospital, and he later received

information from Nationwide regarding the girls’ disclosure of sexual abuse.

However, there was no testimony at trial that Kunkleman was present for or

otherwise involved in Prince’s interviews of Ab.B. and Al.B.

{¶ 39} Under the facts of this case, the statements made during Prince’s

forensic interviews were for the children’s medical diagnosis and treatment.

Moreover, there is no suggestion that Prince was acting on behalf of law

enforcement or sought to obtain details of the abuse of Ab.B. and Al.B. to further

law enforcement’s investigation. The admission of the redacted video recordings

of the interviews of Ab.B. and Al.B. did not violate the Confrontation Clause.

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{¶ 40} Smith’s first assignment of error is overruled.

IV. Mandatory Sentence for Gross Sexual Imposition

{¶ 41} Smith’s third assignment of error claims that the trial court erred by

imposing mandatory prison terms for gross sexual imposition based on a finding

that there was evidence to corroborate the victim’s claims. His fourth assignment

of error argues that his trial counsel rendered ineffective assistance by failing to

object to the unconstitutional mandatory prison term. The State apparently agrees

that the trial court erred, but it argues that this “is likely a procedural formality as

defendant would have to overcome the presumption of prison,” and it asks us to

“decline to entertain a plain error analysis.”

{¶ 42} Under R.C. 2953.08(G)(2), an appellate court may reverse or modify

a 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.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-

1002, 59 N.E.3d 1231, ¶ 1; State v. Crose, 3d Dist. Crawford No. 3-22-34, 2023-

Ohio-880, ¶ 17. Clear and convincing evidence is that “ ‘which will produce in the

mind of the trier of facts a firm belief or conviction as to the facts sought to be

established.’ ” Id. at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d

118 (1954), paragraph three of the syllabus.

{¶ 43} Smith was convicted of four counts of gross sexual imposition, in

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violation of R.C. 2907.05(A)(4), a felony of the third degree. Counts 1-3, which

concerned H.B., allegedly occurred between March 1, 2019 and June 30, 2019.

Count 24, involving Al.B., allegedly occurred between February 1, 2020 and

September 9, 2020.

{¶ 44} In general, there is a presumption that a prison sentence will be

imposed for a violation of R.C. 2907.05(A)(4). Former R.C. 2907.05(C)(2). When

Smith committed gross sexual imposition, R.C. 2907.05(C)(2) further required a

mandatory prison term for gross sexual imposition as a third-degree felony if either:

(a) Evidence other than the testimony of the victim was admitted in

the case corroborating the violation; [or]

(b) The offender previously was convicted of or pleaded guilty to a

violation of this section, rape, the former offense of felonious sexual

penetration, or sexual battery, and the victim of the previous offense

was less than thirteen years of age.

See former R.C. 2907.05(C)(2) (2007 Am.Sub.S.B. 10, 2018 Am.Sub.S.B. 201, and

2018 Sub.S.B.229). We note that R.C. 2907.05(C) has since been modified, and it

no longer includes the corroboration language in former R.C. 2907.05(C)(2)(a).

{¶ 45} The Ohio Supreme Court has held former R.C. 2907.05(C)(2)(a) to

be unconstitutional. State v. Bevly, 142 Ohio St.3d 41, 2015-Ohio-475, 27 N.E.3d

516, paragraph one of the syllabus. The Court found no rational basis for

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distinguishing between cases based on the presence or the absence of corroborating

evidence. Id. at ¶ 1, ¶ 18. It thus held that R.C. 2907.05(C)(2) violated the due

process protections of the Fifth and Fourteenth Amendments to the United States

Constitution. Id. at ¶ 19.

{¶ 46} Here, the trial court found that prison was mandatory for the gross

sexual imposition counts due to R.C. 2907.05(C)(2)(a). In light of Bevly, the trial

court’s imposition of mandatory prison sentences under that statute was contrary to

law.

{¶ 47} Even if we were to employ a plain error analysis, we would conclude

that the imposition of a mandatory sentence under R.C. 2907.05(C)(2)(a) amounts

to plain error. An error qualifies as “plain error” only if it is obvious and but for the

error, the outcome of the proceeding clearly would have been otherwise. State v.

Barnhart, 3d Dist. Putnam No. 12-20-08, 2021-Ohio-2874, ¶ 8, citing State v.

Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 32. In this case,

the error is obvious, and any sentence imposed by the trial court for gross sexual

imposition upon remand would be different, as it would not be a mandatory

sentence. Although resentencing will have no practical effect on the length of

Smith’s imprisonment, given his sentences of life without the possibility of parole,

we nevertheless find it appropriate to remand for resentencing on Counts 1, 2, 3,

and 24.

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{¶ 48} Smith’s third assignment of error is sustained. Considering our

disposition of the third assignment of error, Smith’s fourth’s assignment of error is

overruled as moot.

V. Constitutionality of the Reagan Tokes Act

{¶ 49} In his fifth assignment of error, Smith claims that the imposition of

indefinite sentences under the Reagan Tokes Act violated “the jury trial guarantee,

the doctrine of separation of powers, and due process principles under the federal

and state constitutions.” The trial court imposed indefinite sentences under the

Reagan Tokes Act for Counts 10 through 14.

{¶ 50} “Since the indefinite sentencing provisions of the Reagan Tokes Law

went into effect in March 2019, we have repeatedly been asked to address the

constitutionality of these provisions. We have invariably concluded that the

indefinite sentencing provisions of the Reagan Tokes Law do not facially violate

the separation-of-powers doctrine or infringe on defendants’ due process rights.”

(Citations omitted.) State v. Ball, 3d Dist. Allen No. 1-21-16, 2022-Ohio-1549, ¶

59. In Ball, this court also rejected the appellant’s argument that the Reagan Tokes

Act violates a defendant’s constitutional right to a trial by jury. Id. at ¶ 61-63. We

find no basis to depart from our earlier precedent regarding the constitutionality of

the Reagan Tokes Act.

{¶ 51} Smith’s fifth assignment of error is overruled.

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VI. Conclusion

{¶ 52} The judgment of the Allen County Court of Common Pleas is

affirmed in part and reversed in part, and the matter is remanded for resentencing

on Counts 1, 2, 3, and 24.

Judgment Affirmed in Part,
Reversed in Part and
Cause Remanded

MILLER, P.J. and ZIMMERMAN, J., concur.

/jlr

** Judge Christopher B. Epley of the Second District Court of Appeals, sitting
by Assignment of the Chief Justice of the Supreme Court of Ohio.

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