State v. Jessen
2019 Ohio 907
Ohio Ct. App.2019Background:
- Jessen was indicted on four counts of gross sexual imposition for sexual contact with a minor occurring Aug–Sept 2017; he pled guilty to Counts 1 and 2 under a plea agreement; Counts 3–4 were dismissed.
- At plea the State recited two separate incidents of over-the-clothing digital contact to the minor child’s buttocks while the child sat on Jessen’s lap; Jessen admitted the conduct and that it was for sexual gratification.
- Jessen had a prior related conviction (child endangerment) arising from similar facts involving skin-to-skin contact with other minor children.
- Post-plea, the court ordered a PSI, a VIS, and a psychosexual evaluation; at sentencing the court referenced those materials.
- The trial court sentenced Jessen to 30 months (Count 1) and 24 months (Count 2), ordered the terms to run consecutively for an aggregate 54 months, imposed fines totaling $20,000, and classified him as a Tier II sex offender.
- Jessen appealed, arguing (1) the trial court erred in imposing consecutive sentences and failed to properly consider proportionality and specific findings, and (2) Counts 1 and 2 were allied offenses and should have merged.
Issues:
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Jessen) | Held |
|---|---|---|---|
| Whether consecutive sentences were properly imposed | Consecutive terms were supported: court made the findings (protect public/punish; not disproportionate) and relied on statute and Jessen’s prior similar conviction | Trial court failed to properly consider proportionality, did not cite particularized reasons, and abused discretion | Affirmed: court complied with R.C. 2929.14(C)(4), made required findings on the record and entry, and findings were supported by record |
| Whether Counts 1 and 2 are allied offenses requiring merger | Two separate incidents occurred (different vehicles/times); offenses were committed separately so convictions may stand | Counts identical in wording; plea silent on merger so convictions should merge under R.C. 2941.25 | Affirmed: offenses were not allied — separate, identifiable incidents were admitted by defendant, permitting separate convictions |
Key Cases Cited
- Bonnell v. Ohio, 140 Ohio St.3d 209 (trial court must make required consecutive-sentence findings on the record; need not provide extensive reasons)
- Ruff v. Ohio, 143 Ohio St.3d 114 (three-part allied-offense test: import, separateness, animus)
- Earley v. Ohio, 145 Ohio St.3d 281 (application of Ruff; offenses of dissimilar import when harm to each victim is separate and identifiable)
- Underwood v. Ohio, 124 Ohio St.3d 365 (merger principles under R.C. 2941.25)