STATE OF OHIO v. BRUCE L. GORDON
C.A. No. 28191
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
July 12, 2017
2017-Ohio-5796
CARR, Judge.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 2015 03 0656
CARR, Judge.
{¶1} Defendant-Appellant Bruce L. Gordon appeals from the judgment of the Summit County Court of Common Pleas. This Court affirms in part, reverses in part, and remands the matter for proceedings consistent with this opinion.
I.
{¶2} In March 2015, Gordon was indicted on two counts of rape in violation of
{¶3} Gordon has appealed, raising seven assignments of error for our review, which will be discussed out of sequence to facilitate our analysis.
II.
ASSIGNMENT OF ERROR II
THE TRIAL COURT COMMITTED REVERSIBLE [ERROR] WHEN IT FOUND MR. GORDON GUILTY OF RAPE AND GROSS SEXUAL IMPOSITION BECAUSE THE EVIDENCE WAS INSUFFICIENT TO SUPPORT SUCH FINDINGS.
ASSIGNMENT OF ERROR III
MR. GORDON‘S CONVICTIONS FOR RAPE AND GROSS SEXUAL IMPOSITION ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶4} Gordon argues in his second assignment of error that his convictions are based on insufficient evidence. He asserts in his third assignment of error that his convictions are against the manifest weight of the evidence. He bases both arguments on that fact that “there was no physical evidence linking [] Gordon to the crimes, the children did not personally identify [] Gordon as the perpetrator during the trial, or were coached to say it was [] Gordon by others; and that the children had been previously exposed to sexualized behavior by their mother.”
{¶5} Gordon was convicted of two counts of violating
{¶6}
Sufficiency
{¶7} A review of the sufficiency of the evidence and the manifest weight of the evidence adduced at trial are separate and legally distinct determinations. State v. Gulley, 9th Dist. Summit No. 19600, 2000 WL 277908, *1 (Mar. 15, 2000). When reviewing the sufficiency of the evidence, this Court must review the evidence in a light most favorable to the prosecution to determine whether the evidence before the trial court was sufficient to sustain a conviction. State v. Jenks, 61 Ohio St.3d 259, 279 (1991).
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. The 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. at paragraph two of the syllabus.
{¶2} Mother did testify that, about a week prior to the girls coming forward with allegations of sexual abuse, around 2:30 a.m., she had gone to the bathroom and noticed Gordon coming upstairs from the basement followed by K.A., who was only in her bra and underwear. When Mother asked Gordon about it, he said that K.A. wanted to spend some time with him and that they were playing Legos. Mother was surprised by this because it was a school night.
{¶3} Mother also acknowledged that at some point, during the summer, K.A. had been exposed to pornography. She indicated that the incident had occurred when she was babysitting
{¶4} On February 8, 2015, the family was supposed to go to a party at Mother‘s parents’ house. However, K.A. was not feeling well. Gordon agreed to stay home with K.A. so that Mother, R.A., and S.A. could go to the party. When Mother got home around 8 p.m., she noticed that Gordon was in K.A.‘s bed with her watching a movie. They were both clothed. Nonetheless, Mother thought that was odd because Gordon had never done that before.
{¶5} The next morning, K.A. told her sisters that Gordon had licked her private spot. R.A. reported this to Mother who proceeded to talk to each girl individually about whether Gordon had abused them. R.A. and S.A. reported that Gordon had also touched them. Mother was shocked by what she was told. When Gordon came home, she confronted him. He was very calm, which, according to Mother was unusual, as he typically became very angry when confronted with any type of allegations. Gordon told Mother that he would never do anything to hurt the girls. Mother then had the girls repeat the allegations. At this point, Gordon stated that if he did it, it was an accident.
{¶6} Mother then took the girls to her counselor and went to a couple stores. When she came home, the girls’ counselor returned her phone call and told her that the counselor had to report the incident and that Children Services would call her. Children Services called shortly thereafter and told Mother she could not stay at the house with Gordon. Mother first took the
{¶7} The girls were interviewed and medically examined at the CARE center. The videos of the interviews were admitted as exhibits and portions were played during trial. The interviewer testified that she was trained to interview children and that she asks open-ended, non-leading questions in her interviews. She stated that her role is to conduct a diagnostic interview so that the children can receive any medical care they might need. She averred that the girls did not display any indicators that they had been coached.
{¶8} During the interview, K.A. reported multiple instances of sexual abuse. With respect to the incident that started the investigation, K.A. indicated that while she and Gordon were in her bedroom, Gordon told her to take off her clothes, which she did, and he pulled down her underwear. He told her to lie down on her back with her legs in the air and said he was going to check her for rashes. Gordon then licked her vagina and told her that what happened was no one else‘s business. Additionally, K.A. discussed multiple incidents of Gordon putting his finger up her vagina while they were watching TV and also incidents of him putting his finger in her sisters’ vaginas. He also rubbed her vagina. K.A. also discussed an incident when she and Gordon were in the basement and Gordon asked her to touch his private spot, which she stated was his penis. K.A. said no and went to her room. She also described Gordon having his penis exposed and moving his hand up and down.
{¶9} During her interview, R.A. indicated that Gordon touched her private spot a couple times with his hand and that he rubbed her private spot. R.A. stated that she told him to
{¶10} S.A., in her interview, stated that Gordon put his hand in her private spot and tickled it while she was in her parents’ room while they were watching TV during a commercial. She indicated it would happen when Mother was at the store or her sisters were not in the room and that it happened twice. S.A. told the interviewer that Gordon would be naked that she would see his private spot sticking up under the blanket. S.A. described her private spot as where she pees and poops.
{¶11} The girls were also examined by Donna Abbott, a nurse practitioner. Ms. Abbott testified that she did not utilize a rape kit because over 72 hours had passed since the last incident of abuse. Thus, no DNA was collected. Ms. Abbott testified that she did not observe anything abnormal during the physical exam, which she indicated was not uncommon in light of what the girls reported had happened. She made an assessment of child sexual abuse with respect to all three girls.
{¶12} After the CARE Center examinations, Detective Scott Rubes spoke with Mother and instructed Mother on initiating a one-party consent phone call with Gordon in an attempt to get Gordon to admit to the abuse. The phone call was played for the jury and admitted into evidence. Mother told Gordon that she loved him and that she wanted to be able to stay with him, but that she needed to know what happened, that Gordon was sorry, that it would not happen again, and that he would get help. She testified that she lied to him in order to get information from Gordon. During the phone call, Gordon stated that he may have accidentally
{¶13} Detective Rubes also interviewed Gordon, and a portion of that interview was played for the jury. During the interview, Gordon appeared very tearful and expressed that he was sorry. He agreed that he regretted touching the girls. He remembered feeling guilty and indicated that it was just K.A. but he did not remember a lot. He remembered stopping and saying he was sorry. He denied licking K.A.‘s vagina and stated he was only looking to see if it was inflamed following her surgery as she was complaining that she was in pain.
{¶14} Detective Rubes testified that he also obtained a warrant to search Gordon‘s phone for child pornography. He did so because he was concerned there may have been evidence on the phones based upon comments Gordon made to his mother over phone calls that were made while he was in Summit County Jail. No evidence, however, was obtained from the phone. Detective Guy Sheffield was part of the computer forensics unit with the Akron Police Department. Detective Sheffield was charged with recovering the stored data on the phone. When Detective Sheffield received the phone, it was in working condition, however, it was pass code protected. In the process of trying to recover the data, Detective Sheffield damaged the phone and nothing could be obtained from it. Detective Sheffield sent the phone to the cyber crimes unit at the Ohio Bureau of Criminal Investigation (“BCI“) to see if the data could be
{¶15} All three girls testified at trial. K.A. recounted multiple instances of abuse. She stated that, one time, while she and Gordon were in the basement, he asked her to touch his private part and she said no. She then stated that he “started to like put his finger up” and she told him to stop and he kept doing it. When asked to describe what she meant, she stated that he was “picking on [her] private part[]” with his finger. She also testified that there was a time in her room while they were watching a movie when he told her to pull down her pants down in order to check for infection and he licked her “private spot[.]” She also averred that there was an instance when the three girls were roughhousing and Gordon told them to settle down. The girls laid on him and K.A. stated that “he just st[u]ck his finger right up us.” K.A. identified Gordon at trial.
{¶16} R.A. testified that, more than once, Gordon touched her “down in [her] private spot[]” when she and Gordon were in her parents’ room on their bed. She would sometimes tell him to stop but he would not. She indicated that he “would always pull down [her] clothes and pull down his clothes.” R.A. stated that she uses her private spot to go to the bathroom. R.A. also identified Gordon at trial.
{¶17} S.A. testified that, more than once, while she and Gordon were in her parents’ room watching TV, Gordon “touched [her] private spot” with his fingers under her underwear. S.A. averred that Gordon was naked when this happened. She stated that she did not see his private spot because it was under a blanket. S.A. was not asked to identify Gordon at trial.
{¶18} The girls’ counselors also testified about their sessions and the summaries of those records were admitted into evidence. Jennifer Knobloch, who counseled K.A. and S.A.
{¶19} Ms. Knobloch testified that during their sessions, S.A. also disclosed instances of abuse. S.A. reported that, while she and Gordon were watching TV, there were two occasions that he tickled her vagina under her underwear. She indicated that Gordon was naked on these occasions. S.A. later described Gordon putting his hand in her pants and up her vagina. She stated that he was naked and his private area was standing up under the blanket. She reported that Gordon moved his hand around on his private area.
{¶20} Ms. Knobloch indicated that both girls began displaying boundary issues; Mother had observed the girls inappropriately touching each other and the girls began exhibiting sexualized play. S.A., who was five at the time, also had been caught masturbating and sticking tissues up her vagina to make her sisters laugh. Ms. Knobloch explained that boundary issues and prepubescent masturbation are common in children that have been sexually abused. Both girls also expressed fears of Gordon, including what he would do during the time he was out on bail.
{¶21} On cross-examination, Ms. Knobloch acknowledged that there were other significant life changes happening in the girls’ lives. Mother moved in with her boyfriend in the fall of 2015, whom she had only known for a short time. Additionally, K.A. witnessed a domestic altercation between Mother‘s boyfriend‘s daughter and Mother that resulted in K.A.‘s
{¶22} Sarah Cool, R.A.‘s counselor, testified about their sessions. Initially, after the disclosure of abuse, R.A. was reluctant to discuss the incidents during counseling. Ms. Cool testified that in April 2015, Mother had reported to Ms. Cool that R.A. seemed depressed, had been withdrawing, was urinating in her pants, and had been sucking her thumb. Ms. Cool told Mother that those symptoms were typical symptoms after sexual abuse. In October 2015, R.A. reported that Gordon “put his vagina in [her] vagina.” She stated that this happened a couple of times when Mother was at the store and her sisters were in their room. R.A. had wanted to watch TV with Gordon and he put her on her lap and “did that.” She told Gordon to stop once but he did not say anything or stop. Additionally, R.A. recalled that one time, Gordon “sprayed pee in [her] mouth and said it‘s what babies eat[.]” She described the pee as being white in color. R.A. also reported that the abuse started “a long time ago.” Like her sisters, R.A. also expressed fear about Gordon being out on bail.
{¶23} Both counselors acknowledged that they accept what children tell them at face value and that it is not their role to evaluate whether the children are being truthful.
{¶24} Gordon testified in his defense. He denied engaging in any sexual conduct with K.A. or R.A. and denied having any sexual contact with any of the three girls. He described his relationship with the girls as very solid. He stated that K.A. often complained of pain following her bladder surgery, and that after she raised the issue with him a couple times, he decided to “look and see if there [were] any issues with it.” He explained that when he would play with the girls, often he would chase them around, they would jump on the bed, and then he would jump on the bed and tickle them. Gordon surmised that the girls may have seen him naked the times
{¶25} With respect to February 9, 2015, Gordon indicated that he was “confused and distraught” after Mother accused him of abusing the girls. He indicated that, when Mother asked the girls to repeat the allegations, the girls did not really know what to say and did not really convey anything. As to the one-party consent phone call, Gordon testified that he told Mother what she wanted to hear and so he admitted to assaulting the girls. He indicated that he would have said or done anything to keep his family together. He testified that he lied to both Mother and to Detective Rubes in the interview in hopes that he could ultimately go home to his family. Gordon opined that Mother may have coached the girls. He speculated that her motive could have been related to their strained financial situation and/or because she might have wanted to get Gordon out of the picture so that her new son could carry on her deceased husband‘s family name. Otherwise, he could think of no good reason why the girls would make up the accusations.
{¶26} After reviewing the evidence in a light most favorable to the prosecution, we conclude sufficient evidence was presented whereby a jury could conclude that Gordon engaged in sexual conduct with K.A. and R.A. and that he had sexual contact with all three girls. See
{¶27} On appeal, Gordon has argued that his convictions must be reversed because “there was no physical evidence linking [] Gordon to the crimes, the children did not personally identify [] Gordon as the perpetrator during the trial, or were coached to say it was [] Gordon by others; and that the children had been previously exposed to sexualized behavior by their mother.” While Gordon‘s arguments would seem more appropriately raised in the context of the weight of the evidence, we will briefly address them here.
{¶28} Gordon has pointed to no case law requiring that the victims identify the defendant in court in order for there to be sufficient evidence to support convictions for rape and gross sexual imposition. Nonetheless, both K.A. and R.A. did identify Gordon in court as their abuser. Further, the record is clear that the allegations of abuse all relate to conduct by Gordon.
{¶29} Gordon has also presented no case law establishing that physical evidence is necessary to uphold convictions for rape and gross sexual imposition. See State v. Pemberton, 9th Dist. Lorain No. 05-CA-008660, 2005-Ohio-4659, ¶ 19 (noting that while physical evidence would have strengthened the reliability of the victim‘s statements, such was not required); State v. Adams, 9th Dist. Lorain No. 05CA008685, 2005-Ohio-4360, ¶ 13; State v. West, 10th Dist. Franklin No. 06AP-11, 2006-Ohio-6259, ¶ 16-17.
{¶30} Finally, Gordon argues that there was evidence that the girls were previously exposed to pornography, and thus, the girls could have had knowledge of the sexual behaviors discussed in their allegations outside of having actually experienced them. Thus, essentially, it appears that Gordon argues that a reasonable fact finder could conclude that the girls lied notwithstanding their knowledge of adult sexual behaviors. However, such an argument would
{¶31} Gordon‘s second assignment of error is overruled.
Manifest Weight
{¶32} A conviction that is supported by sufficient evidence may still be found to be against the manifest weight of the evidence. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997); Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 12.
In determining whether a criminal conviction is against the manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.
State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). “When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a ‘thirteenth juror’ and disagrees with the fact[-]finder‘s resolution of the conflicting testimony.” Thompkins at 387, quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982). An appellate court should exercise the power to reverse a judgment as against the manifest weight of the evidence only in exceptional cases. Otten at 340.
{¶33} We cannot say that S.A.‘s failure to identify Gordon in court when she was not asked to do so and the lack of physical evidence in light of the accusations support the conclusion that Gordon‘s convictions are against the manifest weight of the evidence. Gordon focuses much of his argument on what he believes were faults and problems with the investigative process. He notes that Mother did not immediately contact the police and instead
{¶34} Moreover, Gordon alleges that there was testimony that the girls practiced what to say and such further evidenced that they were coached. However, upon clarification from the prosecutor, it appears that the girls were not instructed what precisely to say, and instead were told the most important thing to do was to tell the truth. Finally, Gordon again points to the fact that K.A. was exposed to pornography and discussed it with her sisters as a basis to question the veracity of the girls’ testimony. While it is possible that the exposure could have provided the girls with knowledge of adult sexual behavior, we remain mindful that it is unclear what precisely K.A. was exposed to, and what exactly she shared with her sisters. Further, K.A. and her sisters could have seen pornographic images and nonetheless been sexually assaulted by Gordon. Ultimately, the jury had to decide whether it found the girls to be credible. The jury heard that the girls had a good relationship with Gordon and that they loved him. While the family was under financial stress, there was no evidence that Mother had a strong compelling
{¶35} Gordon‘s third assignment of error is overruled.
ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ALLOWING THE STATE TO INTRODUCE INTO EVIDENCE A PRIVATE RECORDED PHONE CALL BETWEEN A HUSBAND AND A WIFE IN VIOLATION OF THE SPOUSAL IMMUNITY STATUTE.
{¶36} Gordon argues in his first assignment of error that the trial court committed reversible error in allowing the State to play the one-party consent phone call between Mother and Gordon in violation of the spousal privilege statute. The State introduced the call into evidence through Mother‘s testimony. On appeal, Gordon has not challenged Mother‘s testimony about the phone call, only the introduction of the phone call itself.
{¶37} We begin by noting that Gordon has only raised issues of spousal privilege, not spousal competency. See State v. Wilson, 3d Dist. Putnam No. 15-05-20, 2006-Ohio-2000, ¶ 10 (discussing the difference).
Husband or wife shall not testify concerning a communication made by one to the other, or act done by either in the presence of the other, during coverture, unless the communication was made or act done in the known presence or hearing of a third person competent to be a witness, or in case of personal injury by either the husband or wife to the other, or rape or the former offense of felonious sexual penetration in a case in which the offense can be committed against a spouse, or bigamy, or failure to provide for, or neglect or cruelty of either to their children under eighteen years of age or their physically or mentally handicapped child under twenty-one years of age, violation of a protection order or consent agreement, or neglect or abandonment of a spouse under a provision of those sections. The presence or whereabouts of the husband or wife is not an act under this section. The rule is the same if the marital relation has ceased to exist.
The purpose of the statute is “to promote marital peace[.]” (Emphasis omitted.) State v. Mowery, 1 Ohio St.3d 192, 198 (1982). “The general thrust of judicial policy is to construe statutory privileges narrowly: [T]hey impede the search for truth and contravene the principle that the public has a right to everyone‘s evidence.” (Internal quotations and citations omitted.) State v. Nowlin, 5th Dist. Muskingum No. CT2012-0015, 2012-Ohio-4923, ¶ 41.
{¶38} Gordon‘s counsel filed a motion in limine to exclude the phone call and objected to its presentation to the jury at trial. The trial court denied the motion concluding that the parties were not living in coverture, that the communication was not confidential, and that the communication fell within the exception concerning neglect or cruelty to the children.
{¶39} We note that the Ohio Supreme Court has concluded that the admission of spousal communications, such as recorded jailhouse phone calls between the spouses, introduced by means other than the other spouse‘s testimony, does not violate
{¶40} Even assuming that the spousal privilege was otherwise applicable, we note that other courts have previously concluded that acts of sexual assault against children under the age of 18 can fall within the neglect or cruelty exception. See State v. Chaney, 3d Dist. Seneca No. 13-07-30, 2008-Ohio-3507, ¶ 30; Wilson at ¶11-13; State v. Munguia, 6th Dist. Lucas No. L-88-144, 1989 WL 116909, *4 (Oct. 6, 1989); State v. Berezoski, 2d Dist. Montgomery No. 9568, 1986 WL 14770, *37 (Dec. 17, 1986). While not expressly addressing the issue of whether sexual assaults amounted to neglect or cruelty, this Court implicitly agreed that it did in State v. Paxton, 9th Dist. Lorain No. 91CA005011, 1991 WL 156562, *1 (Aug. 14, 1991). Therein, we concluded that, in a case involving the rape of the defendant‘s step-child, the language “neglect or cruelty of either to their children under eighteen years of age” included step-children, and affirmed the trial court‘s decision allowing the testimony of the wife. Id.
{¶41} Further, even if this Court were to conclude that the evidence was privileged and inadmissible, Gordon has failed to demonstrate that the error was not harmless. See
{¶42} Given all of the foregoing, we conclude no reversible error occurred and overrule Gordon‘s first assignment of error.
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR WHEN IT SENTENCED MR. GORDON WITHOUT PROPERLY GIVING HIM ALL THE REQUIRED NOTIFICATIONS AS REQUIRED BY R.C. 2929.19(B)(4) AND CONCERNING POST-RELEASE CONTROL.
{¶43} Gordon argues in his fourth assignment of error that the trial court erred when it failed to provide the required post-release control notifications at the sentencing hearing. Specifically, Gordon asserts that the trial court did not inform him of the mandatory nature of post-release control and failed to include the consequences of violating post-release control outlined in
{¶44} This Court has held that
[I]n order to comply with separation-of-powers concerns and to fulfill the requirements of the post[-]release-control-sentencing statutes, * * * a trial court must provide statutorily compliant notification to a defendant regarding post[-]release control at the time of sentencing. This includes notifying the defendant of the details of the post[-]release control and the consequences of violating post[-]release control. The trial court must also incorporate into the sentencing entry the post[-]release-control notice to reflect the notification that was given at the sentencing hearing[,] which includes incorporating the consequences of violating post-release control.
(Internal quotations omitted.) State v. Adams, 9th Dist. Lorain No. 14CA010709, 2016-Ohio-336, ¶ 6. “[W]hen a trial court fails to properly impose post-release control, that portion of its sentence is void and only the offending portion of the sentence is subject to review and correction.” (Internal quotations and citations omitted.) State v. West, 9th Dist. Summit No. 28051, 2016-Ohio-5694, ¶ 6.
{¶45} At the sentencing hearing, the trial court told Gordon that, “if you were to ever get out of prison, when you are released, you will be on five years of post-release control.” Gordon
{¶46} With respect to whether the trial court was required to notify Gordon at the sentencing hearing of the consequences of violating post-release control outlined in
{¶47} The Supreme Court summarized the issue as follows: “Whether the post-release control notification of
{¶48} Recently, in Grimes, in analyzing what the trial court is required to include in a sentencing entry with respect to post-release control, the Supreme Court also discussed the post release control notifications required at the sentencing hearing. See Grimes at ¶ 9. Notably, the discussion did not include
{¶49} This Court has not precisely addressed the issue, although we have spoken on the topic in other contexts. In State v. McDowell, 9th Dist. Summit No. 26697, 2014-Ohio-3900, ¶ 12, the defendant asked this Court to conclude that, in order for him to be sentenced to an additional 12 months for violating post-release control, the jury had to find that he was in fact on post-release control. See id. at ¶ 12. In discussing the issue, we stated:
When an offender commits a felony during a period on post-release control,
R.C. 2929.141(A)(1) permits a trial court to terminate post-release control and impose a new prison term for the violation of post-release control to be served consecutively with any prison term imposed for the new felony.R.C. 2929.141(A)(1) . A trial court must inform an offender at the time of sentencing that this consequence may follow from a violation of post-release control.R.C. 2929.19(B)[(2)](e) .
{¶50} To the extent this Court stated that
{¶51} Gordon‘s fourth assignment of error is overruled.
ASSIGNMENT OF ERROR V
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR WHEN IT SENTENCED DEFENDANT TO CONSECUTIVE TERMS WITHOUT STRICTLY COMPLYING WITH R.C. 2929.14(C).
{¶53} “The Supreme Court of Ohio in State v. Bonnell held that, ‘[i]n order to impose consecutive terms of imprisonment, a trial court is required to make the findings mandated by
{¶54}
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 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.
{¶55} Here, while the trial court included the required findings in the sentencing entry, it failed to make those findings at the sentencing hearing. “When a trial court imposes consecutive sentences without making the
ASSIGNMENT OF ERROR VI
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN SENTENCING MR. GORDON FOR GROSS SEXUAL IMPOSITION AS A FELONY OF THE THIRD DEGREE INSTEAD OF A FELONY OF THE FOURTH DEGREE, BECAUSE THE JURY VERDICT FORM DID NOT INCLUDE THE DEGREE OF THE OFFENSE, NOR ANY AGGRAVATING ELEMENTS.
ASSIGNMENT OF ERROR VII
MR. GORDON WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL WHEN HIS TRIAL COUNSEL FAILED TO ARGUE THAT THE TRIAL COURT SHOULD HAVE SENTENCED MR. GORDON FOR GROSS SEXUAL IMPOSITION AS A FOURTH DEGREE FELONY.
{¶56} Gordon argues in his sixth assignment of error that the trial court committed plain error in sentencing him for gross sexual imposition as a felony of the third degree instead of a felony of the fourth degree when the verdict form did not include the degree of the offense or any aggravating factors. Gordon argues in his seventh assignment of error that he was denied the effective assistance of counsel when trial counsel failed to argue that Gordon should have been sentenced for gross sexual imposition as a fourth degree felony.
{¶57} Pursuant to
{¶58} Gordon‘s argument is based upon State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256 and
{¶59} Gordon argues that, because the verdict forms in the instant matter did not state the degree of the offense or include any aggravating elements, he should have been sentenced to fourth degree felony gross sexual imposition, as that is the least degree of gross sexual imposition.
{¶60} Gordon was found guilty of violating three counts of
{¶61} Therefore, based upon Gordon‘s arguments, he has not demonstrated any error, let alone plain error. See Hasenyager at ¶ 27.
{¶62} Gordon‘s sixth assignment of error is overruled.
{¶63} With respect to Gordon‘s claim of ineffective assistance of counsel, as we concluded above that the trial court did not err in sentencing Gordon to a third degree felony, trial counsel likewise was not ineffective in failing to object to the trial court‘s sentence on that basis. See State v. Daniels, 9th Dist. Summit No. 26406, 2013-Ohio-358, ¶ 15.
{¶64} Gordon‘s seventh assignment of error is overruled.
III.
{¶65} Gordon‘s first through fourth, sixth, and seventh assignments of error are overruled. Gordon‘s fifth assignment of error is sustained and the matter is remanded for proceedings consistent with this opinion.
Judgment affirmed in part, reversed in part, and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
Costs taxed equally to both parties.
DONNA J. CARR
FOR THE COURT
SCHAFER, P. J.
TEODOSIO, J.
CONCUR.
APPEARANCES:
NEIL P. AGARWAL, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.