STATE OF OHIO, PLAINTIFF-APPELLEE, v. BRIAN K. HARVEY, DEFENDANT-APPELLANT.
CASE NO. 5-10-05
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HANCOCK COUNTY
November 8, 2010
2010-Ohio-5408
Appeal from Hancock County Common Pleas Court, Trial Court No. 2009-CR-00166
Judgment Affirmed
APPEARANCES:
Andrew R. Schuman for Appellant
Mark C. Miller for Appellee
{¶1} Defendant-appellant, Brian Harvey (Harvey), appeals the February 16, 2010 judgment of the Common Pleas Court of Hancock County, Ohio, finding him guilty of four counts of gross sexual imposition (GSI) in violation of
{¶2} The facts relevant to this appeal are as follows.1 On August 6, 2009, Harvey’s ex-wife met with Detective Tuttle of the Findlay Police Department to discuss a video she had surreptitiously made of Harvey. Mrs. Harvey explained that she and Harvey were divorced. However, during the school year, Harvey watched their two daughters, K.H., who was eleven at the time, and M.H., who was ten at the time, in the early morning hours at her apartment until they left for school because Mrs. Harvey was working. However, during the summer break, Harvey did not watch the girls during the morning. Mrs. Harvey further stated that shortly before contacting Det. Tuttle she saw a text message on K.H.’s phone from
{¶3} Mrs. Harvey gave the video recording to Det. Tuttle, who then watched it. This video depicted Harvey giving K.H. a long kiss on the lips, squeezing her buttocks over her pants, and then placing his hand inside of her pants and grabbing her buttocks again. The video also showed Harvey using his mouth on K.H.’s breasts and rubbing her vagina.
{¶4} Mrs. Harvey informed Det. Tuttle that her ex-husband was with the children at their gymnastics class and that he was scheduled to keep them overnight. Det. Tuttle, Det. Domme, Sergeant Blunk of the Hancock County Sheriff’s Office, and a caseworker from Hancock County Children’s Services went to the gymnastics class and asked Harvey to come with them to the police department for an interview. Harvey agreed and went to the police department while the children were taken to the Crimes Against Children Center in Findlay, Ohio, to be interviewed.
{¶5} In her interview, K.H. revealed that Harvey had vaginal intercourse with her on August 4, 2009, during bedtime, and that a similar incident that also involved vaginal intercourse occurred the week prior on July 28 or July 30, 2009. K.H. also stated that Harvey had anal intercourse with her approximately one
{¶6} During his interview, Harvey admitted that he had been engaging in inappropriate activities with his daughters since 2008. More specifically, Harvey admitted to touching K.H.’s breasts and rubbing her vagina on more than one occasion, having vaginal intercourse with K.H. on more than one occasion, performing oral sex on K.H. and having her perform oral sex on him, digitally penetrating K.H.’s vagina, and having anal intercourse with K.H. Harvey also admitted to touching M.H.’s breasts and rubbing her vagina and digitally penetrating M.H.’s vagina. In addition, Harvey informed the investigators that he had inappropriate photographs of young girls on his personal computer. At some point in the interview, Harvey consented to a search of his home and accompanied the officers there, where various items including his computers were seized.
{¶7} A few days after the interviews with K.H. and Harvey, Det. Domme interviewed M.H. In this interview, M.H. revealed that Harvey had touched her “private parts” on more than one occasion and that she had used her mouth “a few times on his privates.”
{¶9} On August 11, 2009, Harvey was indicted for the following offenses:
Count 1: GSI – victim: K.H.– Date of Offense: July 15, 2009-August 6, 2009;
Count 2: GSI – victim: K.H.– Date of Offense: July 15, 2009-August 6, 2009;
Count 3: GSI – victim: K.H.– Date of Offense: July 15, 2009-August 6, 2009;
Count 4: Rape (vaginal intercourse) – victim: K.H. – Date of Offense: August 4, 2009 – Sexually Violent Predator Specification;
Count 5: Rape (vaginal intercourse) – victim: K.H. – Date of Offense: July 28, 2009-July 30, 2009 – Sexually Violent Predator Specification;
Count 6: Rape (vaginal intercourse) – victim: K.H. – Date of Offense: August 6, 2008-August 6, 2009 – Sexually Violent Predator Specification;
Count 7: Rape (oral sex) – victim: K.H. – Date of Offense: August 6, 2008-August 6, 2009 – Sexually Violent Predator Specification;
Count 8: Rape (oral sex) – victim: K.H. – Date of Offense: August 6, 2008-August 6, 2009 – Sexually Violent Predator Specification;
Count 9: Rape (digital penetration) – victim: K.H. – Date of Offense: August 6, 2008-August 6, 2009 – Sexually Violent Predator Specification;
Count 10: Rape (anal penetration) – victim: K.H. – Date of Offense: August 6, 2008-August 6, 2009 – Sexually Violent Predator Specification;
Count 11: GSI – victim: M.H. – Date of Offense: August 6, 2008-August 6, 2009; and
Count 12: Rape (digital penetration) – victim: M.H. – Date of Offense: April 30, 2009-August 6, 2009 – Sexually Violent Predator Specification.
Each count of GSI was charged under
{¶10} Initially, Harvey entered pleas of not guilty to each count and eventually entered pleas of not guilty by reason of insanity. Throughout the next
{¶11} On January 11, 2010, Harvey withdrew all pending motions, withdrew his previously tendered pleas of not guilty and not guilty by reason of insanity, and entered pleas of guilty on each count and each specification. In exchange, the State agreed not to pursue charges against Harvey for the images and recordings found on his computer hard drives. However, the images and recordings from the computer hard drives were placed on a compact disc, marked State’s Exhibit 2, and submitted to the trial court for its review for purposes of sentencing. The court accepted Harvey’s guilty pleas and ordered a pre-sentence investigation.
{¶12} On January 25, 2010, Harvey was sentenced on each count as follows:
Counts 1, 2, 3, & 11: Five years; ordered served consecutively to each other;
Counts 4, 5, & 6: Twenty-five years to life; ordered served concurrently to each other and concurrently to Counts 1-3 & 11;
Counts 7, 8, & 9: Twenty-five years to life; ordered served concurrently to each other but consecutively to Counts 1-6 & 11;
Count 10: Twenty-five years to life; ordered served consecutively to Counts 1-9 & 11; and
Count 12: Twenty-five years to life; ordered served consecutively to Counts 1-11.
The trial court noted that its specific intention was that Harvey be sentenced to an aggregate sentence of 100 years to life in prison.
{¶13} This appeal followed, and Harvey now asserts eight assignments of error.
ASSIGNMENT OF ERROR I
HARVEY RECEIVED PREJUDICIALLY INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF HIS SIXTH AND FOURTEENTH AMENDMENT RIGHTS, AS WELL AS HIS RIGHTS UNDER ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.
ASSIGNMENT OF ERROR II
THE TRIAL COURT FAILED TO MERGE THE CONVICTIONS PURSUANT TO
R.C. 2941.25 AND ERRONEOUSLY IMPOSED A SENTENCE FOR EACH CONVICTION, WHEN IT SHOULD HAVE IMPOSED ONE SENTENCE FOR THE MOST SERIOUS OFFENSE, RAPE.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED IN IMPOSING ANY PRISON TERM FOR THE GROSS SEXUAL IMPOSITION CONVICTIONS BECAUSE IT DID NOT MAKE THE FINDINGS REQUIRED BY
R.C. 2907.05(C)(2) .
THE TRIAL COURT ERRED IN IMPOSING PRISON SENTENCES ON ANY OF THE CONVICTIONS BECAUSE IT FAILED TO COMPLY WITH THE REQUIREMENTS OF
R.C. 2929.19(B)(3) .
ASSIGNMENT OF ERROR V
THE TRIAL COURT ERRED IN IMPOSING MAXIMUM SENTENCES FOR THE GROSS SEXUAL IMPOSITION CONVICTIONS, IN VIOLATION OF
R.C. 2929.14 .
ASSIGNMENT OF ERROR VI
THE TRIAL COURT ERRED IN IMPOSING MAXIMUM SENTENCES FOR THE GROSS SEXUAL IMPOSITION CONVICTIONS BECAUSE IT DID NOT STATE ITS REASONING FOR DOING SO AS REQUIRED BY
R.C. 2929.19(B)(2) AND (B)(2)(d).
ASSIGNMENT OF ERROR VII
THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES BECAUSE IT FAILED TO MAKE THE FINDINGS REQUIRED BY
R.C. 2929.14(E)(4) .
ASSIGNMENT OF ERROR VIII
THE TRIAL COURT ERRED IN IMPOSING AN AGGREGATE SENTENCE OF 100 YEARS TO LIFE IN PRISON, WHICH SENTENCE IS DISPROPORTIONATE IN COMPARISON WITH OTHER SENTENCES IMPOSED FOR SIMILAR OFFENSES.
{¶14} Harvey’s first two assignments of error involve whether his offenses constituted allied offenses of similar import, which should have been merged. As such, we elect to address these assignments of error together.
{¶15} In his first assignment of error, Harvey contends that he received ineffective assistance of counsel when his attorney failed to request that his counts be merged and that he be sentenced to one sentence rather than twelve individual sentences. In his second assignment of error, Harvey contends that the trial court erred in not merging all of his offenses and imposing only one sentence for rape.
{¶16} Initially we note that attorneys licensed by the State of Ohio are presumed to provide competent representation. State v. Hoffman (1998), 129 Ohio App.3d 403, 407, 717 N.E.2d 1149. An ineffective assistance of counsel claim requires proof that trial counsel’s performance fell below objective standards of reasonable representation and that the defendant was prejudiced as a result. State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph two of the syllabus. In reviewing such a claim, courts are to afford a high level of deference to the performance of trial counsel. Id. at 142. Also, in order to show that a defendant has been prejudiced by counsel’s deficient performance, the defendant must prove that there exists a reasonable probability that, but for counsel’s errors, the outcome at trial or in his legal proceedings would have been different. Id. at
{¶17} When a defendant maintains that he received ineffective assistance of counsel based upon a claim that his counsel failed to make a motion to the court, he must also show a reasonable probability that the motion would have been successful in order for such failure to rise to the level of ineffective assistance of counsel. See State v. Madrigal, 87 Ohio St.3d 378, 389, 2000-Ohio-448, 721 N.E.2d 52; State v. Robinson (1996), 108 Ohio App.3d 428, 433, 670 N.E.2d 1077. Thus, this Court’s determination of whether counsel for Harvey was ineffective depends upon whether there was a reasonable probability that a motion to merge the offenses in this case would have been successful.
{¶18} The Revised Code provides that “[w]here the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.”
{¶20} As for the first step, all the offenses of rape and the sexually violent predator specifications charged against Harvey were identical in their elements, as were all of the offenses of GSI. Thus, all the counts of rape and the sexually violent predator specifications satisfied the first step of Blankenship, as did all the counts of GSI. In addition, the Ohio Supreme Court has held that GSI is a lesser included offense of rape so a defendant may not be convicted of both GSI and rape “when the counts arise out of the same conduct.” State v. Foust, 105 Ohio St.3d 137, 2004-Ohio-7006, 823 N.E.2d 836, ¶ 143, citing State v. Johnson (1988), 36 Ohio St.3d 224, 522 N.E.2d 1082, paragraph one of the syllabus. However, this does not mean that Harvey cannot be convicted on all counts as this Court must proceed to the second step. See State v. Lowd, 3rd Dist. No. 5-09-16, 2010-Ohio 193.
{¶22} In Austin, the defendant was found guilty of two counts of GSI, one in which the defendant touched the victim’s breast with his hand and one in which he kissed the victim’s breast with his mouth. Id. at 550. This Court found that the record did not demonstrate that these acts occurred “in a single, simultaneous instance; rather [these] acts occurred separately but in close proximity of time during the same extended assault of the victim.” Id. Thus, we concluded that “these acts were of sufficiently separate character * * * so as to constitute separate crimes that do not constitute allied offenses of similar import. Therefore, the trial court acted properly in not treating these offenses as allied offenses of similar import and sentencing defendant for both.” Id.
{¶23} At the sentencing hearing in the case sub judice, the prosecutor noted that the charges of GSI that listed K.H. as the victim were based on the video that Mrs. Harvey provided to Det. Tuttle. As previously noted, the video
{¶24} Further, the fourth GSI charge was committed against M.H. Both M.H. and Harvey informed the detectives that he had touched her breasts and rubbed her vagina. Clearly, a defendant can be convicted for more than one offense if each offense involves a different victim, even though the offenses charged are identical, i.e. two counts of GSI. See State v. Jones (1985), 18 Ohio St.3d 116, 117, 480 N.E.2d 408 (holding a defendant may be convicted of two counts of aggravated vehicular homicide when two people are killed as the result of a single instance of a defendant’s reckless operation of a motor vehicle); State v. Franklin, 97 Ohio St.3d 1, 2002-Ohio-5304, 776 N.E.2d 26, ¶ 48 (holding a defendant who set only one fire that killed six people committed six counts of aggravated arson because defendant knowingly set a fire that created a substantial risk of serious harm or injury to six people). Thus, Count 11, the GSI offense naming M.H. as the victim, was not an allied offense of similar import to the other three counts of GSI naming K.H. as the victim.
{¶27} For all of these reasons, the first and second assignments of error are overruled.
Third Assignment of Error
{¶28} Harvey next asserts that the trial court erred in sentencing him to prison on any of the four counts of GSI because it did not make any of the necessary findings pursuant to
Whoever violates this section is guilty of gross sexual imposition.
* * *
(2) Gross sexual imposition committed in violation of division (A)(4) or (B) of this section is a felony of the third degree. Except as otherwise provided in this division, for gross sexual imposition committed in violation of division (A)(4) or (B) of this section there is a presumption that a prison term shall be imposed for the offense. The court shall impose on an offender convicted of gross sexual imposition in violation of division (A)(4) or (B) of this section a mandatory prison term equal to
one of the prison terms prescribed in section 2929.14 of the Revised Code for a felony of the third degree if either of the following applies:
(a) Evidence other than the testimony of the victim was admitted in the case corroborating the violation;
(b) The offender previously was convicted of or pleaded guilty to a violation of this section, rape, the former offense of felonious sexual penetration, or sexual battery, and the victim of the previous offense was less than thirteen years of age.
{¶29} Harvey was convicted of four counts of GSI in violation of
Fourth Assignment of Error
{¶30} Harvey contends in his fourth assignment of error that the trial court erred in sentencing Harvey to a term of imprisonment for his rape convictions because it failed to follow the requirements of
Fifth, Sixth, and Seventh Assignments of Error
{¶32} In his fifth and sixth assignments of error, Harvey maintains that the trial court erred by ordering that he serve the maximum sentence of five years on each of his counts of GSI without making the findings required by
{¶33} The Ohio Supreme Court has previously held,
The following sections, because they either create presumptive minimum or concurrent terms or require judicial fact-finding to overcome the presumption, have no meaning now that judicial findings are unconstitutional:
R.C. 2929.14(B) ,2929.19(B)(2) , and2929.41 . These sections are severed and excised in their entirety, as isR.C. 2929.14(C) , which requires judicial fact-finding for maximum prison terms, and2929.14(E)(4) , which requires judicial findings for consecutive terms.
State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 97. Each section of the Revised Code relied upon by Harvey in these three assignments of error was specifically severed from the sentencing statutes in Foster. Therefore,
Eighth Assignment of Error
{¶34} In Harvey’s eighth assignment of error, he asserts that the trial court erred in imposing an aggregate sentence of 100 years to life in prison. In support of this assertion, Harvey cites to two other cases wherein the defendants were convicted of sexual offenses and claims that his sentences were disproportionate to other sentences imposed for similar offenses in other cases.
{¶35} An appellate court must conduct a meaningful review of the trial court’s sentencing decision. State v. Daughenbaugh, 3rd Dist. No. 16-07-07, 2007-Ohio-5774, ¶ 8, citing State v. Carter, 11th Dist. No. 2003-P-0007, 2004-Ohio 1181. A meaningful review means “that an appellate court hearing an appeal of a felony sentence may modify or vacate the sentence and remand the matter to the trial court for re-sentencing if the court clearly and convincingly finds that the record does not support the sentence or that the sentence is otherwise contrary to law.” Daughenbaugh, 2007-Ohio-5774, at ¶ 8, citing Carter, 2004-Ohio-1181, at ¶ 44;
{¶36} As previously noted, in Foster the Supreme Court of Ohio found those portions of the felony sentencing statute requiring judicial fact-finding before the imposition of a sentence to be unconstitutional. The Court stated, “[t]rial courts [now] have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences.” Id. at paragraph seven of the syllabus.
{¶37} Although the trial court is given full discretion in sentencing pursuant to Foster, the trial court must consider the overriding purposes of felony sentencing, which are to protect the public from future crimes by the offender and to punish the offender.
{¶38} Here, each of the four counts of GSI was punishable by one to five years in prison. See
{¶39} The trial court sentenced Harvey to five years on each count of GSI to be served consecutively to one another for an aggregate term of twenty years. As to Counts 4, 5, and 6, the rape counts based upon the acts of vaginal intercourse Harvey perpetrated upon K.H., the trial court imposed the required sentences of twenty-five years to life. However, he ordered that these three offenses be served concurrently with one another and concurrently with the GSI counts. Thus, these seven counts resulted in an aggregate sentence of twenty-five years to life. The trial court also imposed the required sentences of twenty-five years to life for Counts 7, 8, and 9. These offenses were also rapes, two of which
{¶40} Clearly, the trial court grouped similar offenses together for purposes of sentencing and chose to sentence according to each grouping and victim: (1) all GSI counts; (2) vaginal rapes of K.H.; (3) oral and digital rapes of K.H.; (4) anal rape of K.H.; and (5) the digital rape of M.H. In fact, the trial court acknowledged its decision in this regard was based upon the “different forms of conduct, * * * [and] as to count 12, which involves a separate victim, the Court feels obligated to impose a consecutive sentence there because it is necessary to vindicate the rights of another daughter.” (Sent. Hrg., 1/25/10, pp. 33-34.) In so doing, the trial court structured a sentence that addressed the purposes and principles of sentencing for the various types of criminal behavior in which Harvey engaged.
Never in my 21 plus years on the bench have I been forced to witness such graphic and disturbing conduct. The Defendant’s manipulation and molestation of his children is unspeakable and foremost unimaginable. I choose today not to detail the Defendant’s many transgressions, only to say that what occurred must have been the product of a deeply twisted and disturbed mind.
(Id. at p. 27.) The court further noted that the defendant, as the father of the victims, had a duty to protect his children from harm, that he betrayed the sacred trust between a parent and child, deprived the children of a normal childhood, and “[i]n all likelihood impair[ed] future relationships by confusing the parent/child relationship and by fostering distrust with adults in general.” (id. at p. 28.)
{¶42} In explaining why it ordered the four terms of twenty-five years to life imprisonment to be served consecutively, the trial court stated
Three reasons support the imposition of consecutive sentences. One is a practical concern. Given the depravity of the Defendant’s conduct and the unequivocal danger he poses to children, consecutive sentences would never permit him to be in a position of trust with or to have access to children again. To this point, having read the Defendant’s statement in the pre-sentence investigation, and listening today to his allocution, I am again and remain shocked at his attempt to minimize his conduct. I also remain shocked that he has a lack of insight into his very deep sociopathology. I am highly suspicious that rehabilitation would work, because I’m unconvinced that the Defendant truly appreciates the wrongfulness of his conduct. * *
* Secondly, a lengthy sentence would send a signal loud and clear to the community that such horrific conduct will not be tolerated. In fact, the law lists deterrence as an important goal of sentencing. Third and finally, consecutive sentences are necessary in the opinion of this Court, considering the breadth of the Defendant’s unlawful conduct, and to rightly acknowledge the devastating impact his conduct had on two separate victims. When considering the imposition of consecutive sentences, the Court must always be confident that the conduct at issue is so egregious that consecutive sentences would not be disproportionate to the harm caused. I’m confident that they would not be out of line. Here the significance of the Defendant’s aberrant behavior cannot be understated. Moreover, the Court must also conclude that a lengthy sentence is necessary to protect an unsuspecting public. And I do conclude that.
(id. at pp. 29-30.)
{¶43} Given the facts previously outlined by this Court, including the numerous video recordings of Harvey and his daughters engaging in sexual acts, the trial court’s reasons for imposing consecutive sentences, and the requirements of
{¶44} In short, each sentence imposed on Harvey was well within the statutory range for sentencing, and eight of these sentences were required by law. Further, the record demonstrated the particularly egregious, systematic sexual abuse perpetrated on the ten and eleven-year-old victims by their father. Therefore, the trial court did not err in imposing an aggregate sentence of 100 years to life upon Harvey, and the eighth assignment of error is overruled.
{¶45} For all of these reasons, we affirm the judgment of the Common Pleas Court of Hancock County, Ohio.
Judgment Affirmed
PRESTON, J., concurs.
/jlr
{¶46} I concur fully with the majority opinion, however write separately to emphasize that the appropriate standard of review was applied. The standard of review for sentences was set forth in the plurality opinion of Kalish, supra. In Kalish, four panel members noted that
{¶47} In his assignments of error, Harvey alleges that the trial court erred by failing to make the findings required by