State v. Elkins

[Cite as State v. Elkins, 2024-Ohio-68.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
No. 112582
v. :

STEVEN ELKINS, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: January 11, 2024

Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-22-673043-A and CR-23-678100-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Lisa J. Turoso, Assistant Prosecuting
Attorney, for appellee.

Eric M. Levy, for appellant.

LISA B. FORBES, J.:

Steven Elkins (“Elkins”) appeals the trial court’s journal entry

sentencing him to consecutive prison sentences. After reviewing the facts of the case

and pertinent law, we affirm the trial court’s decision.
I. Facts and Procedural History

Elkins pled guilty to attempted domestic violence, a fourth-degree

felony in violation of R.C. 2923.02 and 2919.25(A); “theft; aggravated theft,” a first-

degree misdemeanor in violation of R.C. 2913.02(A)(1); and “violating protection

order, consent agreement, anti-stalking,” a fifth-degree felony in violation of

R.C. 2919.27(A)(1).1

At Elkins’s sentencing hearing, the court heard from the state of Ohio,

Elkins’s pretrial probation officer, the victim (“C.F.”), Elkins’s attorney, and Elkins.

The trial court also noted that it had reviewed the presentence-investigation report

(“PSI”) and a report from the Risk-Management Group of the High-Risk Domestic-

Violence Docket (the “HRDV Report”).

The state of Ohio informed the court that the following events led to

Elkins’s indictment. Elkins exited a bar and confronted C.F., he “took [C.F.’s] phone

and her purse [and] dragged her on the sidewalk by her hair.” When police arrived,

they “saw abrasions on [C.F.’s] right foot and leg and her left biceps.” A video of the

encounter was played for the court.2

The court heard from the pretrial-probation officer that while Elkins

was on bond awaiting trial for these cases, he tested positive for alcohol, marijuana,

1 The attempted domestic-violence and theft charges stem from an indictment in

Cuyahoga C.P. No. CR-22-673043-A (the “attempted DV case”) and the violation of
protection order charge stems from an indictment in Cuyahoga C.P. No. CR-23-678100-
A.

2 A copy of the video was not included in the record on appeal.
and Adderall. Elkins further “attempted to falsify [a random] drug test * * *.” When

he resubmitted for that screening, he tested “positive for alcohol and amphetamines

with Adderall.” The pretrial-probation officer stated that while Elkins was on bond

for the attempted DV case, a home visit was conducted and Elkins was arrested for

violation of a protection order because the victim, C.F., was at his home.

Elkins addressed the court. According to him, a prior conviction for

domestic violence with a previous girlfriend was his “fault. Bad decisions.

Drinking.” After serving his three-year prison sentence for that conviction, he “g[ot]

into another toxic relationship,” the relationship with C.F. When detailing his

relationship with C.F., Elkins explained that he met her on a dating website where

she was described as being 24 years old. According to Elkins, he later learned that

C.F. was 19, she had been diagnosed with bipolar disorder, she was a prostitute, and

he owed a “pimp * * * three or four grand.”

Elkins detailed for the court his version of events that led to the

domestic-violence and theft charges in this case. According to Elkins, while he and

C.F. were driving, C.F. grabbed his phone, exited the vehicle, and went into a bar.

Elkins found C.F. inside a bar and asked for his phone back. C.F. threatened to call

the police and Elkins “figured [he would] start walking away” when C.F. claimed she

would throw his phone in the sewer. Elkins claimed that he responded as follows:

“So I looked at her and I’m, like, oh. So I went over — I didn’t pull her hair, as you

see. I put my arm around her shoulder, hold her left arm with my left hand, pull the

phone out, and just took off running.” Elkins claimed before he left, C.F. punched
him five times. According to Elkins, he did not hurt C.F., bruise her, pull her hair,

or steal her purse.

C.F. addressed the court and admitted that she and Elkins have gotten

into mutually physical altercations. C.F. explained that she has a scar on her nose

“from when he beat the s* *t * * * out of [her and] threw cat litter in [her] face * * *.”

According to C.F., Elkins had his daughter text her the day before sentencing saying,

“My dad loves you and that he hopes you drop the TPO.”

The HRDV Report states that it “is a supplemental report that

provides information not contained within the PSI, specifically related to risk of

future intimate partner violence.”

The HRDV Report presented to the court, states that Elkins’s

“documented history of intimate partner violence * * * reports include multiple

strangulations, jealousy, stalking, controlling behavior, violations of protection

orders and named victim believing [Elkins] is capable of killing her.” The report

detailed incidents between Elkins and a former partner, J.S. Allegations between

Elkins and J.S. span from April 23, 2013, through December 30, 2018. According

to these allegations, Elkins grabbed J.S. by the throat and strangled her on multiple

occasions. The HRDV Report lists the following “risk factors” for the current

offense: strangulation, offense took place in public, visible injuries, Elkins and

victim recently ended their relationship, and violation of a protection order while on

court-supervised release.
 After hearing these statements and considering the reports, the trial

court sentenced Elkins to 15 months in prison on the attempted domestic-violence

conviction and 120 days in jail on the “theft; aggravated theft” conviction. These two

sentences were ordered to run concurrently to each other. The court further

sentenced Elkins to 12 months in prison for violating the protection order. The court

ordered that Elkins’s two prison sentences be served consecutively for an aggregate

prison sentence of 27 months.

It is from this order that Elkins appeals, raising the following

assignment of error:

The record does not support the consecutive sentence imposed upon
[Elkins] and the findings required to impose consecutive sentences
were incomplete and contrary to law.

II. Law and Analysis

“[T]o 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 * * *.” State v. Bonnell,

140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37. Pursuant to

R.C. 2929.14(C)(4), the court must find that consecutive sentences are “necessary to

protect the public from future crime or to punish the offender”; “not

disproportionate to the seriousness of the offender’s conduct and to the danger the

offender poses to the public”; and at least one of the following three factors:

(a) The offender committed one or more of the multiple offenses while
the offender was awaiting trial or sentencing, was under a sanction
* * *, or was under post-release control for a prior offense.
 (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 of any of the
courses of conduct adequately reflects the seriousness of the offender’s
conduct.

(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.

R.C. 2953.08(G)(2), which guides our review of consecutive-felony

sentences, “compels appellate courts to modify or vacate sentences if they find by

clear and convincing evidence that the record does not support any relevant findings

under * * * (C)(4) of section 2929.14[.]” State v. Marcum, 146 Ohio St.3d 516, 2016-

Ohio-1002, 59 N.E.3d 1231, ¶ 22; see also State v. Jones, 163 Ohio St.3d 242, 2020-

Ohio-6729, 169 N.E.3d 649, ¶ 28; State v. Roberts, 2017-Ohio-9014, 101 N.E.3d

1067, ¶ 10 (8th Dist.) (“[i]f the court made the required findings in order to impose

consecutive sentences, we must affirm those sentences unless we ‘clearly and

convincingly’ find that the record does not support the court’s findings,” quoting

R.C. 2953.08(G)(2)); State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 19 (8th

Dist.).

The statute is written in the negative; that is, an appellate court does
not need to clearly and convincingly find that the record supports the
findings in order to affirm, but instead must clearly and convincingly
find that the record does not support the findings in order to reverse or
modify a sentence.

Roberts at ¶ 10.

On appeal, Elkins raises three arguments for why he believes the trial

court’s imposition of consecutive prison sentences was improper. First, he argues
that the trial court did not “specify the specific basis used to make and support a

consecutive sentence finding.” Second, Elkins argues that the imposition of

consecutive sentences is “not supported by the facts and record * * *.” Finally, Elkins

argues that if the imposition of consecutive sentences was proper “the aggregate

sentence that resulted was too long * * *.”

A. Consecutive-Sentence Findings and Support in the Record

First, for ease of discussion we review together whether the trial court

made the requisite findings and whether those findings are supported by the record.

Elkins argues the trial court did not make the required consecutive-

sentence finding when it stated that “consecutive service of the prison term is

necessary to protect the public from future crime or to punish the defendant.” Elkins

contends that “[t]his was a vital and required finding” because “a reviewing Court

must know which factor the trial court relied upon to support the consecutive

sentencing finding with specificity so it could determine if the record reflected the

imposition of consecutive sentences.” Thus, Elkins essentially argues that by not

specifying either that consecutive sentences were necessary to protect the public or

that they were necessary to punish the offender, this court cannot meaningfully

review the finding. We disagree and find that we are able to meaningfully review

whether the record does not support either or both of those findings and turn our

review to that issue.

Elkins argues that the “record is devoid of evidence” that consecutive

sentences are 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 the danger the offender poses to the public.” We

disagree.

The court stated that, based on the HRDV Report, it did not “have any

problem putting together a pattern of [Elkins’s] behavior.” The court explained:

The nature of violence in these reports is troubling, because it seems
like your go-to is to put your hands around her throat. Burst capillaries
in the eyes. The victim stating that she froze because she just thought
she was going to die, which is not uncommon in strangulation in the
recollection of being strangled. On multiple occasions, she indicate[d]
that she just gave up and stopped resisting, which is the human
reaction to being strangled.

The HRDV report summarized at least six instances of Elkins grabbing his intimate

partners by the neck or strangling them from 2013-2022.

The court further stated that it was “concerned” for Elkins and the

women in his life “because when a victim is strangled in an intimate-partner

relationship, the risk of being killed at the perpetrator’s hands is increased by seven

and a half times * * *, it just skyrockets.” The court continued, “That behavior alone

really tells us a lot of what maybe you don’t even know that you’re capable of but

what you could be capable of, and then we’re dealing with a whole different

situation.”

Further, the court heard from Elkins that after spending three years

in prison for a domestic-violence conviction with a different victim, he entered the

current relationship with C.F. that resulted in another domestic violence conviction.
 Accordingly, upon review of the record, we find that the court’s

findings, that the consecutive sentences are necessary to protect the public or punish

Elkins and that consecutive sentences are not disproportionate to the seriousness of

Elkins’s conduct and the danger he poses to the public, are not clearly and

convincingly unsupported by the record.

B. Excessive Sentence

Finally, Elkins argues that even if the imposition of consecutive

sentences was proper; “the aggregate sentence that resulted was too long * * *.” We

disagree.

In support of this position regarding his aggregate sentence, Elkins

relies on the Ohio Supreme Court’s decision in State v. Gwynne, Slip Opinion

No. 2022-Ohio-4607 (“Gwynne IV”). However, during the pendency of this appeal

the Ohio Supreme Court reconsidered and vacated the Gwynne IV opinion in State

v. Gwynne, Slip Opinion No. 2023-Ohio-3851 (“Gwynne V”).

As stated, R.C. 2953.08(G)(2) guides our review of consecutive-felony

sentences and “compels appellate courts to modify or vacate sentences if they find

by clear and convincing evidence that the record does not support any relevant

findings under * * * (C)(4) of section 2929.14[.]” State v. Marcum, 146 Ohio St.3d

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

Here, Elkins was ordered to serve his two prison sentences

consecutively. As previously stated, the court made the requisite statutory findings

and we did not find that those findings were unsupported by the record. Under these
circumstances, we find that Elkins’s argument that his sentence is excessive when

the court ran two prison sentences consecutively for a total term of 27 months of

incarceration is not well taken. Elkins’s sole assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending appeal is terminated. Case

remanded to the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

LISA B. FORBES, JUDGE

KATHLEEN ANN KEOUGH, A.J., and
EILEEN T. GALLAGHER, J., CONCUR