[Cite as State v. Bunn, 2017-Ohio-2903.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-16-1089
Appellee Trial Court No. CR0201503183
v.
Joseph Bunn DECISION AND JUDGMENT
Appellant Decided: May 19, 2017
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.
Jeremy W. Levy, for appellant.
*****
OSOWIK, J.
{¶ 1} This is an appeal brought by appellant from the judgment of the Lucas
County Court of Common Pleas. In this case, appellant was indicted by the Lucas
County Grand Jury charging him with five counts of use of a minor in a nudity-oriented
material or performance, in violation of R.C. 2907.3232, a felony of the second degree.
{¶ 2} The state of Ohio additionally filed an information against the appellant,
charging him with a violation of R.C. 2907.322, pandering sexually oriented matter
involving a minor, a felony of the fourth degree.
{¶ 3} Appellant entered a plea of no contest to Count 1 of the indictment and to
Count 6, the information filed against him.
{¶ 4} The trial court denied a request to continue sentencing.
{¶ 5} Appellant was then sentenced to a term of imprisonment of 30 months on
Count 1 and a term of 17 months on Count 6. The court ordered appellant to serve these
terms consecutive to each other.
{¶ 6} Appellant’s sole assignment of error is as follows:
1) Appellant’s sentence is contrary to law.
{¶ 7} Appellant also presents two issues that are interrelated. The first issue
argues that the trial court’s findings for consecutive sentencing are not supported by clear
and convincing evidence and the second issue argues that the trial court’s statement that it
considered R.C. 2929.11 and 2929.12 is not supported by the record. We shall consider
both issues simultaneously.
{¶ 8} Appellant specifically contends that the court’s finding that consecutive
sentences were necessary to protect the public from future harm and the further finding
that consecutive sentences are not disproportionate to the seriousness of the offender’s
conduct are not supported by the record. He argues that a distinction should be made in
this case in that appellant was not accused of creating the material that was downloaded.
2.
{¶ 9} R.C. 2953.08(G) 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 “division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of
section 2929.14, or division (I) of section 2929.20 of the Revised Code.”
{¶ 10} Clear and convincing evidence is that measure or degree of proof which is
more than a mere “preponderance of the evidence,” but not to the extent of such certainty
as is required “beyond a reasonable doubt” in criminal cases, and which will produce in
the mind of the trier of facts a firm belief or conviction as to the facts sought to be
established. Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954).
{¶ 11} The Supreme Court has recently held in State v. Marcum, 146 Ohio St.3d
516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 23:
Nevertheless, it is fully consistent for appellate courts to review
those sentences that are imposed solely after consideration of the factors in
R.C. 2929.11 and 2929.12 under a standard that is equally deferential to the
sentencing court. That is, an appellate court may vacate or modify any
sentence that is not clearly and convincingly contrary to law only if the
appellate court finds by clear and convincing evidence that the record does
not support the sentence.
3.
{¶ 12} R.C. 2929.11 states, in relevant part:
(A) A court that sentences an offender for a felony shall be guided
by the overriding purposes of felony sentencing. The overriding purposes
of felony sentencing are to protect the public from future crime by the
offender and others and to punish the offender using the minimum
sanctions that the court determines accomplish those purposes without
imposing an unnecessary burden on state or local government resources. To
achieve those purposes, the sentencing court shall consider the need for
incapacitating the offender, deterring the offender and others from future
crime, rehabilitating the offender, and making restitution to the victim of
the offense, the public, or both.
(B) A sentence imposed for a felony shall be reasonably calculated
to achieve the two overriding purposes of felony sentencing set forth in
division (A) of this section, commensurate with and not demeaning to the
seriousness of the offender’s conduct and its impact upon the victim, and
consistent with sentences imposed for similar crimes committed by similar
offenders.
(C) A court that imposes a sentence upon an offender for a felony
shall not base the sentence upon the race, ethnic background, gender, or
religion of the offender.
4.
{¶ 13} Further, R.C. 2929.12 states, in relevant part:
(A) Unless otherwise required by section 2929.13 or 2929.14 of the
Revised Code, a court that imposes a sentence under this chapter upon an
offender for a felony has discretion to determine the most effective way to
comply with the purposes and principles of sentencing set forth in section
2929.11 of the Revised Code. In exercising that discretion, the court shall
consider the factors set forth in divisions (B) and (C) of this section relating
to the seriousness of the conduct, the factors provided in divisions (D) and
(E) of this section relating to the likelihood of the offender’s recidivism,
and the factors set forth in division (F) of this section pertaining to the
offender’s service in the armed forces of the United States and, in addition,
may consider any other factors that are relevant to achieving those purposes
and principles of sentencing.
(B) The sentencing court shall consider all of the following that
apply regarding the offender, the offense, or the victim, and any other
relevant factors, as indicating that the offender’s conduct is more serious
than conduct normally constituting the offense:
(1) The physical or mental injury suffered by the victim of the
offense due to the conduct of the offender was exacerbated because of the
physical or mental condition or age of the victim.
5.
(2) The victim of the offense suffered serious physical,
psychological, or economic harm as a result of the offense.
(3) The offender held a public office or position of trust in the
community, and the offense related to that office or position.
(4) The offender’s occupation, elected office, or profession obliged
the offender to prevent the offense or bring others committing it to justice.
(5) The offender’s professional reputation or occupation, elected
office, or profession was used to facilitate the offense or is likely to
influence the future conduct of others.
(6) The offender’s relationship with the victim facilitated the
offense.
(7) The offender committed the offense for hire or as a part of an
organized criminal activity.
(8) In committing the offense, the offender was motivated by
prejudice based on race, ethnic background, gender, sexual orientation, or
religion.
(9) If the offense is a violation of section 2919.25 or a violation of
section 2903.11, 2903.12, or 2903.13 of the Revised Code involving a
person who was a family or household member at the time of the violation,
the offender committed the offense in the vicinity of one or more children
who are not victims of the offense, and the offender or the victim of the
6.
offense is a parent, guardian, custodian, or person in loco parentis of one or
more of those children.
(C) The sentencing court shall consider all of the following that
apply regarding the offender, the offense, or the victim, and any other
relevant factors, as indicating that the offender’s conduct is less serious
than conduct normally constituting the offense:
(1) The victim induced or facilitated the offense.
(2) In committing the offense, the offender acted under strong
provocation.
(3) In committing the offense, the offender did not cause or expect to
cause physical harm to any person or property.
(4) There are substantial grounds to mitigate the offender’s conduct,
although the grounds are not enough to constitute a defense.
(D) The sentencing court shall consider all of the following that
apply regarding the offender, and any other relevant factors, as factors
indicating that the offender is likely to commit future crimes:
(1) At the time of committing the offense, the offender was under
release from confinement before trial or sentencing; was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised
Code; was under post-release control pursuant to section 2967.28 or any
other provision of the Revised Code for an earlier offense or had been
7.
unfavorably terminated from post-release control for a prior offense
pursuant to division (B) of section 2967.16 or section 2929.141 of the
Revised Code; was under transitional control in connection with a prior
offense; or had absconded from the offender’s approved community
placement resulting in the offender’s removal from the transitional control
program under section 2967.26 of the Revised Code.
(2) The offender previously was adjudicated a delinquent child
pursuant to Chapter 2151. of the Revised Code prior to January 1, 2002, or
pursuant to Chapter 2152. of the Revised Code, or the offender has a
history of criminal convictions.
(3) The offender has not been rehabilitated to a satisfactory degree
after previously being adjudicated a delinquent child pursuant to Chapter
2151. of the Revised Code prior to January 1, 2002, or pursuant to Chapter
2152. of the Revised Code, or the offender has not responded favorably to
sanctions previously imposed for criminal convictions.
(4) The offender has demonstrated a pattern of drug or alcohol abuse
that is related to the offense, and the offender refuses to acknowledge that
the offender has demonstrated that pattern, or the offender refuses treatment
for the drug or alcohol abuse.
(5) The offender shows no genuine remorse for the offense.
8.
(E) The sentencing court shall consider all of the following that
apply regarding the offender, and any other relevant factors, as factors
indicating that the offender is not likely to commit future crimes:
(1) Prior to committing the offense, the offender had not been
adjudicated a delinquent child.
(2) Prior to committing the offense, the offender had not been
convicted of or pleaded guilty to a criminal offense.
(3) Prior to committing the offense, the offender had led a law-
abiding life for a significant number of years.
(4) The offense was committed under circumstances not likely to
recur.
(5) The offender shows genuine remorse for the offense.
(F) The sentencing court shall consider the offender’s military
service record and whether the offender has an emotional, mental, or
physical condition that is traceable to the offender’s service in the armed
forces of the United States and that was a contributing factor in the
offender’s commission of the offense or offenses.
{¶ 14} In reviewing the enumerated sentencing factors and with a deferential
standard of review to the decision of the trial court, we conclude that the individual
sentences imposed by the court are not contrary to law as each individual sentence on
each charge is within the authorized statutory range. Furthermore, the trial court stated in
9.
its judgment entry that it had considered the record, oral statements and any victim
impact statement, as well as statutory principles and purposes of sentencing and the court
further balanced the seriousness, recidivism and other relevant factors under R.C.
2929.12.
{¶ 15} With respect to the court’s imposition of consecutive sentences, that issue
is governed by R.C. 2929.14(C)(4), which states, in pertinent part:
(4) 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:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised
Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of
one 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
10.
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.
{¶ 16} The court found in its judgment entry that the imposition of consecutive
sentences was 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. The court also
found in its judgment entry that the harm caused was so great or unusual that no single
prison term was adequate.
{¶ 17} Although the court is not required to give reasons in support of those
findings, the record demonstrates that when the court inquired as to the ages of the people
on the downloaded videos, the prosecutor stated that “ages ranged from 15, eight year
olds down to a three year old.” While a presentence report was not prepared, the court
did review a pretrial criminal record check. That record check established that aside from
traffic offenses, the appellant had been convicted in 1997 of a nuisance abatement charge
and a felony nonsupport of dependents in 2008.
{¶ 18} Despite appellant’s minimal criminal record, upon our review, we do not
believe the record in this case clearly and convincingly fail to support the trial court’s
consecutive sentence findings.
11.
{¶ 19} However, our review of the sentencing judgment entry reveals the
following finding made by the trial court: “The Court further finds that this offense is an
offense of violence pursuant to R.C. 2901.01(A)(9)(a)-(d).”
{¶ 20} R.C. 2901.01(A)(9)(a)-(d) states the following:
(9) “Offense of violence” means any of the following
(a) A violation of section 2903.01, 2903.02, 2903.03, 2903.04,
2903.11, 2903.12, 2903.13, 2903.15, 2903.21, 2903.211, 2903.22, 2905.01,
2905.02, 2905.11, 2905.32, 2907.02, 2907.03, 2907.05, 2909.02, 2909.03,
2909.24, 2911.01, 2911.02, 2911.11, 2917.01, 2917.02, 2917.03, 2917.31,
2919.25, 2921.03, 2921.04, 2921.34, or 2923.161, of division (A)(1) of
section 2903.34, of division (A)(1), (2), or (3) of section 2911.12, or of
division (B)(1), (2), (3), or (4) of section 2919.22 of the Revised Code or
felonious sexual penetration in violation of former section 2907.12 of the
Revised Code;
(b) A violation of an existing or former municipal ordinance or law
of this or any other state or the United States, substantially equivalent to
any section, division, or offense listed in division (A) (9)(a) of this section;
(c) An offense, other than a traffic offense, under an existing or
former municipal ordinance or law of this or any other state or the United
States, committed purposely or knowingly, and involving physical harm to
persons or a risk of serious physical harm to persons;
12.
(d) A conspiracy or attempt to commit, or complicity in committing,
any offense under division (A)(9)(a), (b), or (c) of this section.
{¶ 21} We find nothing in the record that reflects any discussion or establishes an
obvious basis in support of such a finding in this case. As a result, a remand to the trial
court is appropriate for the express purpose of trial court clarification and delineation of
the basis of the finding of an “offense of violence” pursuant to R.C. 2901.01(A)(9)(a)-(d)
or to amend the judgment entry accordingly. Appellant’s sole assignment of error is
found not well-taken.
{¶ 22} The judgment of conviction and the sentencing of appellant is hereby
affirmed, but this case is remanded for further proceedings for the express purpose of trial
court clarification and further delineation of the basis of the finding that this offense is an
“offense of violence” pursuant to R.C. 2901.01(A)(9)(a)-(d). Appellant is ordered to pay
the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
13.
State v. Bunn
C.A. No. L-16-1089
Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
James D. Jensen, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
14.