State v. Kidd

[Cite as State v. Kidd, 2021-Ohio-3838.]

IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-200356
TRIAL NO. B-1900139
Plaintiff-Appellee, :

vs. :
O P I N I O N.
JOSEPH KIDD, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
Remanded

Date of Judgment Entry on Appeal: October 29, 2021

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummins,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Michael J. Trapp, for Defendant-Appellant.
 OHIO FIRST DISTRICT COURT OF APPEALS

ZAYAS, Presiding Judge.

{¶1} Joseph Kidd appeals his convictions following a jury trial for six counts

of rape of a child under ten years old. For the following reasons, we affirm the trial

court’s judgment in part, reverse the judgment in part, and remand the cause to the

trial court.

Procedural and Factual Background

{¶2} On February 14, 2019, Joseph Kidd was indicted on two counts of rape

for engaging in fellatio with A.O., a child under ten years old, two counts of rape for

inserting his penis in A.O.’s anus, a child under ten years old, and two counts of rape

for engaging in fellatio with A.O., a child under ten years old. All of the offenses

occurred between November 21, 2015, and May 11, 2016.

{¶3} At the time of the offenses, Kidd was living with his girlfriend K.O. in a

trailer on Compton Road. They lived with K.O.’s two sons, A.O. and M.O., and their

daughter S.O.

{¶4} In June 2016, A.O. and M.O. lived in a foster home. A child in the

foster home was being investigated for possible sexual abuse. At that time, A.O. was

interviewed at the Mayerson Center. A.O. stated that a foster child named Poppy had

sexually abused his brother M.O. At the interview, A.O. denied that anyone had hurt

him or had touched him on his body.

{¶5} In July 2016, both boys were moved to another foster home with

Rachel Dyson. Dyson testified that she saw A.O. masturbating under a blanket three

days after he arrived. When she asked him what he was doing, he responded,

“Joseph.” She questioned both boys, and based on their responses, she contacted

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social worker LaShawn Nelson.

{¶6} Nelson, a caseworker for 21 years for the Hamilton County

Department of Job and Family Services (“HCJFS”), became A.O.’s caseworker in July

2016. She was contacted by Dyson in 2016 regarding sexual statements and behavior

by A.O. Typically, when reports of sexual allegations surfaced, Nelson would speak

with the child about the allegations, refer the child to the Mayerson Center, and

contact the police. However, she did not do so at the time.

{¶7} In March 2017, A.O. was moved to a foster home with Luz Santiago.

Nelson met with Santiago and A.O. regarding an allegation of sexual abuse and

referred A.O. to the Mayerson Center based upon that conversation. Nelson also

spoke with M.O. regarding the allegation.

{¶8} Cecilia Friehofer, a social worker and forensic interviewer at the

Mayerson Center, was qualified as an expert in forensic interviewing, suspected child

abuse victims, and delayed disclosures. She interviewed A.O. in November 2018 due

to a disclosure that Kidd had touched A.O.’s penis. The summary and recording of

the interview were admitted into evidence.

{¶9} At the time of the interview, Friehofer was unaware that the abuse was

alleged to have happened in 2016. A.O. spontaneously disclosed that his dad put his

dad’s mouth on his penis, his dad had him put his mouth on his dad’s penis, and his

dad put his penis in A.O.’s “butt.” A.O. also described that his dad ejaculated in his

mouth and “butt.” A.O. stated that he was six years old when these bad things

happened. The video was played, and the jurors received a transcript of the

interview. After the interview, Friehofer referred A.O. for a medical examination

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with a physician.

{¶10} Friehofer explained that delayed disclosures are either purposeful or

accidental. Purposeful is when the child decides to tell, and accidental is when the

abuse is discovered by accident. A.O. purposefully disclosed. According to Friehofer,

99.9 percent of the children she has interviewed have delayed disclosures. Friehofer

discussed numerous reasons why children have delayed disclosures.

{¶11} On cross-examination, the defense played the Mayerson Center

interview of A.O. conducted in June 2016. In that interview, A.O. had disclosed an

incident with his dad that happened in the bathroom. He did not discuss that

incident with Friehofer.

{¶12} Although A.O. stated in his 2016 interview that Joseph had not hurt or

touched him, Friehofer discounted the statement because the question was a

compound question and A.O. was unwilling to disclose at that time. Friehofer

admitted that she had concerns regarding A.O.’s mental capacity, but she initially

described him as age and developmentally appropriate because he had not been

diagnosed with any delays.

{¶13} A.O. told Friehofer that one of the incidents happened while his

mother was at work at a Chinese restaurant. A.O. also stated that one incident

occurred in the car while they were driving to the restaurant to pick up his mom from

work. When asked for Joseph’s last name, A.O. responded “Barger.” Friehofer

believed that A.O. was unsure of Joseph’s last name because his inflection went up

when he stated “Barger” as if he were questioning if his dad’s last name was Barger.

{¶14} At the end of the interview, A.O. said that he had seen Joseph do

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similar things with his mom’s mom and his mom’s sister. When Friehofer asked for

clarification, A.O. admitted that he did not see Joseph with his grandmother and his

aunt.

{¶15} M.O., A.O.’s younger brother, was the next witness. Prior to testifying,

M.O. was questioned to determine his competence as a witness because he was nine

years old. Although he initially was unable to explain the difference between the

truth and a lie, when given examples, he could differentiate the truth from a lie.

When the court found him competent to testify, Kidd did not object.

{¶16} M.O. described Joseph as a “bad man” who was not nice to him or his

brother. He testified that he had seen Kidd touch A.O.’s private parts when he was

exiting from the bathroom. Joseph and A.O. were sitting on the couch, and Joseph

made A.O. suck his penis. A.O. asked for help, so M.O. tried to get Joseph off of him,

but he was too small. M.O. did not know where his mom or his sister were during

that incident. When asked to identify Joseph in the courtroom, M.O. was unable to

do so.

{¶17} On cross-examination, M.O. was asked if he remembered speaking

with Detective McBride and telling him that he saw Joseph and A.O. in the

bathroom. M.O. responded that he saw them outside of the bathroom. When the

video of the interview was played, M.O. initially exclaimed that he never said that.

When asked if he was telling the truth on the video or telling the truth now, he said,

“that time.”

{¶18} In the video, he told McBride that he asked his sister S.O. to help, but

he testified that it was A.O. who asked S.O. for help. He had also told McBride that

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his mother was sitting on the couch while on her phone. When confronted with

these inconsistencies, M.O. blurted, “Everything’s a lie.” He reaffirmed that

everything was a lie. On redirect examination, he again stated, “Everything’s a lie.”

After several questions to clarify what he meant, M.O. was asked if he was lying when

he said he saw Joseph’s penis in A.O.’s mouth, he responded, “No.” M.O. responded,

“Yes” when asked if he saw it with his own eyes.

{¶19} A.O., who was ten years old, was the next witness. He did not know his

right hand from his left hand, and did not know what year he was born. A.O.

testified that Joseph was mean. When asked what he meant by Joseph was being

mean, A.O. replied, “He was being mean to us.”

{¶20} A.O. testified that Joseph touched his penis with his hand. When

asked what Joseph did when he touched his penis, A.O. explained that “he played

with it.” A.O. also testified that “he put his mouth on [his penis]” in a room in the

trailer. Although A.O. initially responded “nothing” when asked if Joseph said

anything before putting his mouth on his penis, he later testified that Joseph said

“don’t bite it.” When asked if that happened one time or more than one, he stated,

“more than one.” A.O. further stated, “he made me put my mouth on his penis and

he peed.” When that happened, A.O. washed his mouth. A.O. testified that it felt,

“nasty.” A.O. testified that on one occasion, he called his brother to help him, and

M.O. pulled him out.

{¶21} A.O. said that when he and his siblings were in the truck, his dad called

him up to the front while he was driving and put his penis in A.O.’s mouth. A.O.

further explained that “slobber” came out and got on his mouth. His mother was at

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home when this happened. A.O. also testified that, “My dad was touching his dick

and his penis inside * * * my behind.” When asked if that happened one time or

more than one time, he responded “more than.” A.O. identified Joseph in court.

{¶22} Detective Sean McBride, a criminal investigator with the Springfield

Township Police Department, testified that he investigates all sex offenses involving

juveniles. He had been an investigator for seven years. McBride was trained to

conduct interviews at the Reid School of Interview and Interrogation. Typically, he

does not interview children unless Mayerson Center declines to do the interview. In

this case, he interviewed M.O. because Mayerson Center would not do the interview.

He did not interview A.O.

{¶23} McBride interviewed A.O.’s mother and his grandmother. McBride

also interviewed Kidd at the jail for approximately an hour. The audio recording of

the interview was played for the jury. Kidd denied any sexual contact with A.O., but

admitted that it was possible that A.O. saw him masturbate once.

{¶24} McBride was contacted by HCJFS caseworker Nelson. He reviewed

A.O.’s Mayerson Center interview. During the interview, A.O. had stated that when

the incident in the truck occurred, his mother had called and they were going to pick

her up from work at a Chinese restaurant. McBride determined that his mother had

been unemployed for years.

{¶25} After McBride’s testimony, the state rested.

{¶26} The defense called S.O. to testify, and the court asked her questions to

determine her competency. S.O., who was seven years old, lived with her paternal

grandmother. S.O. was able to give examples of lies. The court determined that S.O.

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was competent to testify, knew the difference between right and wrong, and a lie and

the truth.

{¶27} S.O. testified that she never saw Joseph do any “adult things” with

A.O. S.O. was three years old when they lived in the trailer. S.O. further stated that

A.O. never asked for help, and she and M.O. never pulled him off of her father when

her father was doing “adult things” to A.O. After S.O.’s testimony, the defense

rested, and the state called a rebuttal witness, Dr. Kathi Makoroff.

{¶28} Dr. Makoroff is a child-abuse pediatrician at Children’s Hospital. The

parties stipulated that she was an expert in child abuse. Both brothers were

physically examined, which revealed a normal physical exam with no evidence of

trauma. The most common finding on a child who has been sexually abused is a

normal exam, especially when the abuse occurred more than three days prior to the

exam.

{¶29} The jury found Kidd guilty of all of the charges. The trial court

sentenced Kidd to life without parole on every count to run consecutively based on

its findings that Kidd showed no remorse, and the harm caused by two or more of the

offenses was so great and unusual that no single prison term would reflect the

seriousness, Kidd’s criminal history and the need to protect the public. Kidd was

also ordered to have no contact with the victims.

{¶30} Kidd now appeals, raising ten assignments of error.

A.O.’s Competency to Testify

{¶31} In his first assignment of error, Kidd argues that the trial court erred

by failing to determine whether A.O., a child of unsound mind, was competent to

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testify.

{¶32} Evid.R. 601(A) and R.C. 2317.01 state that a person is competent to

testify “except those of unsound mind and children under ten years of age who

appear incapable of receiving just impressions of the facts and transactions

respecting which they are examined, or of relating them truly.” A person “of

unsound mind” includes “all forms of derangement or intellectual disability.” R.C.

1.02(C). “In order for the trial court to have a sua sponte duty to inquire into a

witness’s competency, that competency must have been clearly called into question

by the time the witness was called to the stand.” State v. Cooper, 139 Ohio App.3d

149, 164, 743 N.E.2d 427 (12th Dist.2000), citing State v. Kinney, 35 Ohio App.3d

84, 86, 519 N.E.2d 1386 (1st Dist.1987).

{¶33} Kidd asserts that the trial court committed plain error by allowing A.O.

to testify without determining his competency where his intellectual limitations had

been noted by the state in its opening remarks and by the testimony of his

caseworker Nelson who believed his IQ was 58.

{¶34} Relying on State v. Kinney, Kidd argues that A.O.’s competency was

clearly called into question due solely to his low IQ. In Kinney, this court concluded

that the trial court’s failure to sua sponte determine the ten-year-old witness’s

competence was plain error. Kinney at 86. Before the child testified, her mother

explained that the child was “mentally retarded, that her mental age level was four or

five years old, that her I.Q. was lower than 58, and that she would sometimes make

things up as a way of reaching out for help.” Id. A second witness, a police officer

who interviewed the child, testified that he knew she was mentally retarded and had

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“confused the incident in question with a separate incident involving appellant.” Id.

Both witnesses questioned the child’s ability to accurately and truthfully perceive

facts and communicate them. See id.

{¶35} Here, A.O.’s ability to observe, recollect, and communicate the facts

was not questioned by any of the witnesses, and Kidd did not challenge A.O.’s

competency to testify truthfully. Our thorough review of the testimony indicates that

A.O. did not testify in such a way as to undermine his ability to accurately relay the

facts. Therefore, the trial court had no compelling reason to sua sponte determine

A.O.’s competence to testify. See Cooper, 139 Ohio App.3d at 165, 743 N.E.2d 1427.

{¶36} We overrule the first assignment of error.

Ineffective Assistance of Trial Counsel

{¶37} In his second assignment of error, Kidd contends that he did not

receive the effective assistance of counsel when counsel failed to object to A.O.’s

testimony due to his incompetence to testify.

{¶38} To establish ineffective assistance of counsel, an accused must

demonstrate that counsel’s performance was deficient and that the deficient

performance prejudiced the accused. Strickland v. Washington, 466 U.S. 668, 687,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The failure to make either showing is fatal to

the claim. Id. at 697. A defendant is prejudiced by counsel’s performance if there is

a reasonable probability that the outcome of the proceedings would have been

different but for the complained-of conduct. Id. at 694. “A reasonable probability is

a probability sufficient to undermine confidence in the outcome.” Id.

{¶39} As previously discussed, our review of the record indicates that A.O.’s

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testimony did not place his competence into question. Therefore, we cannot

conclude that Kidd’s trial counsel was deficient in failing to challenge A.O.’s

competency. Accordingly, we overrule the second assignment of error.

M.O.’s Competency to Testify

{¶40} Next Kidd argues that the trial court erred by finding M.O. competent

to testify.

{¶41} Ordinarily, a trial court’s finding that a child under the age of ten is

competent to testify shall not be disturbed, absent an abuse of discretion. State v.

Frazier, 61 Ohio St.3d 247, 250, 574 N.E.2d 483 (1991). Here, Kidd did not object to

the trial court’s determination that M.O. was competent to testify, so we review for

plain error. See Kinney, 35 OhioApp.3d at 86, 519 N.E.2d 1386.

{¶42} In determining whether a child under ten years old is competent to

testify, the trial court must take into consideration: “(1) the child’s ability to receive

accurate impressions of fact or to observe acts about which he or she will testify, (2)

the child’s ability to recollect those impressions or observations, (3) the child’s ability

to communicate what was observed, (4) the child’s understanding of truth and falsity

and (5) the child’s appreciation of his or her responsibility to be truthful.” Frazier at

251. A trial court’s determination that a witness is competent to testify must be

granted great deference because the trial judge has the opportunity to observe the

person’s appearance, his or her manner of responding to the questions, general

demeanor and any indicia of ability to relate the facts accurately and truthfully. See

id.

{¶43} At the competency hearing, M.O. was able to provide the court with his

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name, age, birthday, the names of his siblings and mother, the city he lived in, and

the name of the home where he lived. Although he could not articulate the difference

between a lie and the truth, he correctly distinguished between truthful and false

statements when questioned by the court. He also understood that lying was bad,

and if a person tells the truth, that person will not get in trouble. Notably, Kidd did

not wish to ask M.O. any additional questions and did not object to the court’s

finding that M.O. was competent.

{¶44} M.O. understood the difference between telling the truth and lying,

and that it was important to tell the truth. Based on this record, M.O. was competent

under the Frazier factors. The third assignment of error is overruled.

Kidd’s Competence to Stand Trial

{¶45} In his fourth assignment of error, Kidd asserts that the trial court erred

by trying him without determining whether he was competent to stand trial.

{¶46} On August 12, 2019, during a pretrial hearing, Kidd informed the trial

court that he wished to fire his two appointed attorneys because he believed each

attorney was telling him something different, and he had not seen any paperwork

regarding his case. Kidd’s counsel informed the court that he had filed a suggestion

of incompetency at the request of Kidd and based on his own concerns as they were

preparing for trial. Trial counsel was unsure if Kidd wanted to fire his attorneys

because they requested a competency evaluation.

{¶47} Kidd explained to the trial court that he did not understand the

proceedings due in part to a lack of communication by his lawyers. Kidd also

complained that he was not read his Miranda rights when he received his

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indictment, he was being held for ransom, and he did not wish to accept a plea. The

court noted Kidd’s confusion and ordered a competency evaluation, and the case was

continued.

{¶48} At the next hearing, the trial court informed Kidd that it had received a

Court Clinic report stating that Kidd refused to participate in the evaluation. Kidd’s

counsel explained that Kidd refused to participate until he had new attorneys. Kidd

confirmed that he wanted new counsel for the same communication issues he had

previously expressed. Kidd further explained that he understood the proceedings,

but his attorneys had not provided him with discovery or discussed the trial with

him. His attorneys confirmed that the relationship had broken down due primarily

to Kidd’s family, and counsel asked to be removed from the case. Kidd told the trial

court that he had previously been found competent, and he did not wish to speak

with the doctor. The case was continued for the trial court to appoint new counsel.

{¶49} Eleven months later, Kidd’s new counsel withdrew the suggestion of

incompetency and explained that based on his contact with Kidd, he had no concerns

with Kidd’s competency and expressed his belief that Kidd was competent. Counsel

filed an entry withdrawing the suggestion of incompetency, and the case proceeded

to trial.

{¶50} Under Ohio law, “a person whose mental condition is such that he

lacks the capacity to understand the nature and object of the proceedings against

him, to consult with counsel, and to assist in preparing his defense may not be

subjected to a trial. The conviction of an accused while he is not legally competent to

stand trial violates due process of law.” (Internal citations omitted.) State v.

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Rubenstein, 40 Ohio App.3d 57, 60, 531 N.E.2d 732 (8th Dist.1987).

{¶51} R.C. 2945.37 provides that if the defendant raises the issue of

competency before trial, the trial court must conduct a hearing to determine, upon

the evidence submitted, whether the defendant is competent. “The competency issue

is one that can be waived by the parties. A hearing is not required in all situations,

only those where the competency issue is raised and maintained.” State v. Smith,

8th Dist. Cuyahoga No. 95505, 2011-Ohio-2400, ¶ 5.

{¶52} Here, Kidd withdrew the suggestion of incompetence filed by his

previous attorneys. Kidd’s current trial counsel, who had been representing Kidd for

almost a year, assured the court that Kidd was competent based on his interactions

and communications with Kidd. Moreover, the record does not indicate that Kidd

exhibited any signs of incompetency. Although Kidd was initially confused about the

court process, the record indicates that his confusion was based primarily on the

miscommunication between Kidd and his former lawyers.

{¶53} Based on this record, we conclude that the trial court did not err by

accepting Kidd’s waiver of the competency issue. See id. This assignment of error is

not well taken and is overruled.

Proof of Venue

{¶54} For ease of discussion, we next address the sixth assignment of error.

Kidd challenges his conviction on count four, engaging in fellatio with A.O., asserting

that the state failed to prove the offense occurred in Hamilton County.

{¶55} “[V]enue must be proved beyond a reasonable doubt in a criminal

case.” State v. Gardner, 42 Ohio App.3d 157, 536 N.E.2d 1187 (1st Dist.1987). Kidd

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did not raise the issue of venue in the trial court, but the failure to prove venue is

plain error. Id. at 158. Venue can be established “by the evidence as a whole or by

circumstantial evidence.” State v. Tapke, 1st Dist. Hamilton No. C-060494, 2007-

Ohio-5124, ¶ 59. To prove venue, the state must submit sufficient evidence to justify

a reasonable inference that the violation occurred in the county alleged in the

indictment. Id.

{¶56} Here, the state was required to prove that the offense occurred in

Hamilton County. Count four charged Kidd with engaging in fellatio with A.O. A.O.

testified that Kidd put his penis in A.O.’s mouth while Kidd was driving. A.O.

testified that his mother was home at the time of this offense, but during the

Mayerson Center interview, he stated the offense occurred after his mother called

and asked to be picked up from her job at a Chinese restaurant. However, McBride

determined that A.O.’s mother had not been employed for years, so no Chinese

restaurant was ever identified.

{¶57} A.O. could not identify any street names, cities, or counties to establish

where the offense occurred. A.O. did not provide any details that would allow the

factfinder to conclude that the offense occurred in Hamilton County. Therefore, the

evidence was insufficient to support the conviction. See Gardner at 157-158.

{¶58} We sustain the sixth assignment of error.

Sufficiency of the Evidence

{¶59} Next, Kidd argues that the judgment was not supported by sufficient

evidence with respect to counts five and six. Counts two and five alleged that Kidd

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engaged in fellatio with A.O. by placing A.O.’s penis in his mouth. Counts three and

six alleged that Kidd placed his penis in A.O.’s anal opening.

{¶60} “In a challenge to the sufficiency of the evidence, the question is

whether, after viewing the evidence in the light most favorable to the state, any

rational trier of fact could have found all the essential elements of the crime proved

beyond a reasonable doubt.” State v. Ham, 1st Dist. Hamilton No. C-170043, 2017-

Ohio-9189, ¶ 19, citing State v. Jenks, 61 Ohio St.3d 259, 273, 574 N.E.2d 492 (1991),

paragraph two of the syllabus.

{¶61} A.O. described a specific incident where Kidd put his mouth on A.O.’s

penis and testified it happened “more than one time.” A.O. also testified that Kidd

put his penis in A.O.’s “butt” and did so “more than” one time. Kidd contends that

the testimony that each incident occurred more than once is insufficient to support

those convictions.

{¶62} A.O.’s testimony that it happened more than once is sufficient to

support the guilty findings. See State v. Dean, 5th Dist. Holmes No. 07CA013, 2008-

Ohio-2146, ¶ 21 (concluding that the victim’s testimony that it happened more than

once was “sufficient to support the findings of guilt as to the rape charges.”); State v.

Mosely, 10th Dist. Franklin No. 05AP-701, 2006-Ohio-3102, ¶ 23 (determining that

the victim’s testimony that vaginal penetration occurred three or four times

“sufficiently satisfies each element of the crime charged for the specified number of

occurrences.”); State v. Langston, 8th Dist. Cuyahoga No. 71578, 1998 WL 57152, *4

(February 12, 1998) (explaining that the child’s testimony that it happened “more

than once” was sufficient to support two counts of rape).

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{¶63} Because A.O.’s testimony was sufficient to support the guilty findings

on both counts, we overrule the fifth assignment of error.

Manifest Weight of the Evidence

{¶64} In the seventh assignment of error, Kidd contends that the judgment

was against the weight of the evidence because A.O.’s IQ was only 58. In essence,

Kidd argues that the jury should have disregarded A.O.’s testimony on the basis of

his low IQ.

{¶65} When considering a challenge to the weight of the evidence, an

appellate court must review the entire record, weigh the evidence and all reasonable

inferences, consider the credibility of the witnesses, and determine whether, in

resolving conflicts in the evidence, the trier of fact clearly lost its way and created a

manifest miscarriage of justice. State v. Thompkins, 78 Ohio St.3d 380, 387, 678

N.E.2d 541 (1997). Reversing a conviction as being against the manifest weight of

the evidence should be reserved for only the most “ ‘exceptional case in which the

evidence weighs heavily against the conviction.’ ” State v. Martin, 20 Ohio App.3d

172, 485 N.E.2d 717 (1st Dist.1983), paragraph three of the syllabus.

{¶66} Generally, credibility is an issue for the trier of fact to resolve. See

State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001). “Because the trier of fact

sees and hears the witnesses and is particularly competent to decide ‘whether, and to

what extent, to credit the testimony of particular witnesses,’ we must afford

substantial deference to its determinations of credibility.” Barberton v. Jenney, 126

Ohio St.3d 5, 2010-Ohio-2420, 929 N.E.2d 1047,¶ 20, citing State v. Konya, 2d Dist.

Montgomery No. 21434, 2006-Ohio-6312, ¶ 6, quoting State v. Lawson, 2d Dist.

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Montgomery No. 16288, 1997 WL 476684, *4 (Aug. 22, 1997).

{¶67} As previously discussed, A.O. was competent to testify, and the jury

was in the best position to determine A.O.’s credibility and rationally could have

believed his testimony. Based on this record, we cannot conclude that the jury

clearly lost its way and created a manifest miscarriage of justice. We overrule the

seventh assignment of error.

Sentences of Life Imprisonment

{¶68} Next Kidd challenges his sentences of life without parole as

disproportionate to the offenses committed, constituting cruel and unusual

punishment.

{¶69} Generally, if a sentence falls within the terms of a valid statute, it

cannot amount to cruel and unusual punishment. See McDougle v. Maxwell, 1 Ohio

St.2d 68, 69, 203 N.E.2d 334 (1964). “Outside the death penalty context, the Eighth

Amendment does not require strict proportionality between crime and sentence but

forbids only extreme sentences that are grossly disproportionate to the crime.”

Harmelin v. Michigan, 501 U.S. 957, 1001, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991).

{¶70} Although Kidd did not challenge the constitutionality of his sentence

in the trial court, he now contends that life without parole is so disproportionate to

the crime of rape of a child under ten, as to constitute cruel and unusual punishment.

{¶71} This argument has been repeatedly rejected by Ohio appellate courts.

In State v. Driscoll, 2d Dist. Clark No. 2008 CA 93, 2009-Ohio-6134, ¶ 29, the court

held that “[defendant’s] sentence of life without parole for raping [a] four year old * *

* in violation of R.C. 2907.02(A)(1)(b), does not constitute cruel and unusual

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punishment, because it is not disproportionate or shocking to the moral sense of the

community, in view of the heinous nature of the crime.” (Internal quotations

omitted.) The Eleventh District Court of Appeals similarly concluded that

“considering the heinousness of the crime of raping a nine-year-old child, it cannot

be said that appellant’s [life] sentence was disproportionate or shocking to the moral

sense of the community.” State v. Gladding, 66 Ohio App.3d 502, 513, 585 N.E.2d

838 (11th Dist.1990). In State v. Glaze, 6th Dist. Lucas No. L-17-1269, 2019-Ohio-

53, ¶ 26, the court concluded that a sentence of life without parole for the rape of a

child under the age of ten was not disproportionate to the conduct involved.

{¶72} We agree with our sister courts that a sentence of life without parole

for the rape of a child under the age of ten is not so disproportionate to shock the

moral sense of the community, and overrule Kidd’s eighth assignment of error.

Consecutive Sentences

{¶73} In his ninth assignment of error, Kidd contends that the aggregate

sentence is contrary to law because the trial court did not make the requisite findings

to impose consecutive sentences.

{¶74} When reviewing felony sentences, a reviewing court may overturn the

imposition of consecutive sentences where the court “clearly and convincingly” finds

that (1) “the record does not support the sentencing court’s findings under R.C.

2929.14(C)(4),” or (2) “the sentence is otherwise contrary to law.” The imposition of

consecutive sentences is contrary to law if a trial court fails to make the findings

mandated by R.C. 2929.14(C)(4). State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-

3177, 16 N.E.3d 659, ¶ 37.

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{¶75} The trial court must make the statutory findings at the sentencing

hearing, which means that “ ‘the [trial] court must note that it engaged in the

analysis’ and that it ‘has considered the statutory criteria and specifie[d] which of the

given bases warrants its decision.’ ” Bonnell at ¶ 26, quoting State v. Edmonson, 86

Ohio St.3d 324, 326, 715 N.E.2d 131 (1999). A trial court is not, however, required to

state its reasons to support its findings, nor is it required to precisely recite the

statutory language, “provided that the necessary findings can be found in the record

and are incorporated in the sentencing entry.” Bonnell at ¶ 37.

{¶76} In this case, when making the requisite finding under R.C.

2929.14(C)(4), the trial court found that consecutive sentences were necessary to

protect the public and not disproportionate to the seriousness of his conduct, the

harm caused by two or more of the offenses was so great and unusual that no single

prison term would reflect the seriousness, and based upon his criminal history and

the need to protect the public, consecutive sentences were warranted. And a review

of the record supports the court’s finding.

{¶77} However, as the state concedes, the trial court did not incorporate the

findings in the sentencing entry as required by Bonnell at syllabus. Therefore, we

sustain the ninth assignment of error, in part, and overrule it in part, and remand the

cause to the trial court for a nunc pro tunc entry to incorporate the findings in the

entry of conviction.

No-contact Order

{¶78} In his final assignment of error, Kidd contends that the trial court

erred by imposing a no-contact order along with the sentence of life in prison

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without parole. The state concedes the error and joins Kidd in asking this court to

vacate the no-contact order.

{¶79} Accordingly, we sustain the tenth assignment of error and remand the

cause to the trial court with instruction to vacate the no-contact order.

Conclusion

{¶80} We sustain Kidd’s sixth and tenth assignments of error, and we sustain

the ninth assignment of error, in part. We reverse the conviction on count four and

remand the cause to the trial court with instructions to vacate the conviction on

count four, enter a nunc pro tunc order correcting the omission of the consecutive-

sentences findings from the sentencing entry, and to vacate the no-contact order in

the sentencing entry. We affirm the trial court’s judgment in all other respects.

Judgment affirmed in part, reversed in part, and cause remanded.

BERGERON and WINKLER, JJ., concur.

Please note:
The court has recorded its own entry this date.

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