2005 Ohio 2578
Ohio Ct. App.
2005

*1 76

14, only 2003. That was the time appellees allegedly defamatory made the statements. regard appellant’s argument With the trial court should rule, applied discovery

have we find that the publication date of and not the (Nov. action. Snell v. Drew discovery 1, thereof is the time for accrual of an such 1985), L-85-074, Rainey v. 4, 8216; (1983), No. App. Lucаs 1985 WL 8 Shaffer 262, 354, 1328; Westmeyer Palmer v. App.3d (1988), Ohio 8 456 OBR N.E.2d 48 296, Ohio 549 App.3d N.E.2d 1202. Appellant’s assignments first second of error are overruled. Accordingly, judgment of the Delaware Common Pleas

Court is affirmed.

Judgment affirmed. JJ., Gwin B. concur. Hoffman, William Ohio, Appellee,

The STATE of v.

KERNS, Appellant. Kerns, v. [Cite State as App.3d 2005-Ohio-2578.] Ohio, Appeals

Court District, County. Fourth Scioto No. 04CA2936. May Decided 2005. *2 Grimshaw, R. Lynn County Prosecuting Attorney, Randolph Alan Scioto áhd Rumble, Prosecuting Attorney, appellee. Assistant for

Buckler, L.L.C., Sayre, appellant. K. for Sayre, Tieman & Chadwick Peter B. Presiding Judge. Abele, appeal judgment This is an from a Scioto Common Pleas Court Kerns, Presley sentence. A found jury Jeremy

conviction and Elvis defendant- 2903.03(A). appellant, guilty voluntary manslaughter violation of R.C. following assigned errors are for review: of Error: Assignment First

Appellant’s contrary sentence is to law because record does not the court’s that ‍​‌​​​​​​​‌‌‌​​​​‌‌‌​​​‌‌​​‌​​​​​​​‌​‌‌‌‌​​‌​‌​​​‍a minimum findings sentence would demean the seriousness of the offense. Assignment

Second of Error: Appellant’s contrary sentence is to law the trial because court failed to follow proper statutory for procedure felony sentencing. *3 6, 2003, In July the of into evening early morning July and the of a {¶ 3} Farley Square apartments disturbance arose the in Portsmouth. The distur- began dog bance when someone’s defecated in another yard. resident’s This situation a escalated to standoff between two groups shouting residents —each confrontation, racial at the epithets during other. Sometime that appellant and wife, Kerns, Amy his from emerged apartment joined their in fray.1 the outside, While the Kernses were someone threw beer can that hit appellant’s eventually wife the head. Police arrived and told the crowd to return to their apartments. day, The next appellant apartment his wife left their to to the go

{¶ 4} In complex doctor. the lot parking they approached by were Carlton The Cave. words, exchanged two men and Cave began punch appellant Amy the face.2 them, and, step interlude, Kerns tried to between during momentary that her withdraw, husband drew knife. Cave then tried to appellant but chased Cave through parking finally caught tussled, lot and him. The two men and Cave suffered a fatal stab wound. He died at the scene. Appellant took his wife to the doctor and then fled the area. Authorities apprehended appellant five months later. Jury The Scioto Grand returned an charging appellant indictment

{¶ 5} 2903.01(A). with murder violation of R.C. He pleaded guilty, not and the trial, matter came on for a three-day jury February 2004. At Appellant they gone participate 1. wife both claimed his that had outside not to in the Kerns, quiet Amy surgery, sleep. melee but to ask for so that who had had recent could 2. aggressor The was uncontroverted thаt Carlton Cave evidence was the initial in this incident. in the incident that had cost aggressor had been the

evidence revealed Cave time, however, testified that Cave At several witnesses him his life. the same him had chased down fight appellant to withdraw from the but attempted had a “cat and mouse chase him. described the scеne as stabbed One witness parking lot.” through trying testified in his own defense and stated he had been Appellant

{¶ 6} through claimed that he had chased Cave protect Appellant his wife. trouble, him inflict any injury. that did not want more not to parking lot to tell testimony point, was somewhat unclear. At one stabbing, appellant’s As to the not recаll he had stabbed Cave. At another claimed that he could when appellant an accident and had stabbing claimed that the had been Cave point, appellant fallen on the knife. guilty voluntary not of murder but jury appellant guilty found 2903.03(A). jury discharged, in violation of After the was

manslaughter minimum sentence would sentencing. finding court After proceeded crime, nine-year the court sentenced to a demean the seriousness of the appeal term of incarceration. This followed.

I assignment in his first of error that the record Appellant asserts the trial court’s that a minimum sentence demeans the finding does not disagree. seriousness of his offense. We 2903.03(B), voluntary analysis begins specifies Our with R.C. which

manslaughter felony. is a The available ‍​‌​​​​​​​‌‌‌​​​​‌‌‌​​​‌‌​​‌​​​​​​​‌​‌‌‌‌​​‌​‌​​​‍sentences for first- first-degree *4 2929.14(A)(1). If degree range years. felonies from three to ten a trial court a term not imposes prison previously on someone who has been sentenced unless, alia, prison, impose by to it must the shortest term authorized law inter finds on the record that the shortest term “will demean the seriousness of 2929.14(B)(2); (1999), the offender’s conduct.” R.C. v. Edmonson State 324, 325, St.3d 715 N.E.2d 131. Initially, we note that it is not clear from the record whether appellant 10}

{¶ previously prison. parties has been sentenced to Because both and the trial court not, under the that he had we will do so as well for operated assumption purposes of our review. appellant previously prison, Given that has not been sentenced to he minimum possible

should have been sentenced to the sentence under R.C. 2929.14(A)(1) (three trial on years), explicitly unless the court found the record that such a sentence demeaned the seriousness оf the offense. We note that that in fact make a transcript finding this case reveals court did such it “would demean the seriousness rejected a minimum sentence because 2929.14(B)(2) statutory- Thus, the R.C. complied the court with the offense.” requirements. Nevertheless, support that the record does not appellant argues by factоr cited the court a to the sole seriousness finding. Appellant points

such (a support that is insufficient to argues for the this slaying) racial motivation however, note, required give that a trial court is not to finding. the court’s We that a minimum sentence would demean the seriousness finding its reasons for Comer, 463, Edmonson, v. 99 Ohio St.3d supra syllabus; an offense. аt the State ¶ 2003-Ohio-4165, this fn. 2. The fact that the court cited 793 N.E.2d others, factor, to find that the trial citing one without is not sufficient reason the record. supported by court’s determination was not that insufficient to Appellant argues further the record is 13} {¶ racially motivated. He refers to an instance when finding homicide was to Amy “boys” the state cross-examined Kerns on her use of the word describe colloquialism claims that this is a harmless that Appellant African-Americans. that was should not be misconstrued as a racial slur or evidence the homicide However, seriously understates the racially appellant’s argument motivated. may racially evidence the record from which one infer this crime was appellant motivated. The evidence was uncontroverted that and his wife were Farley July in the that occurred at on 6 and part Square of the standoff incident Douglas Kelly appellant 7. Portsmouth Police Officer identified as one of the Moreover, racial people yelling who had been slurs. Portsmouth Police Detective Farley Square big James related that had called “one black appellant Charles trial, In family.” taped police played during appellant interview with was Farley Square said that he had not of the incident at because he slept night people apartment was afrаid that black would stake out his and that he had not himself in to he was afraid that would police people turned because black him. purposely get get jail get themselves arrested order to into This does a racial in the component slaying. evidence indicate Moreover, it, although expressly the trial court did not rеfer to another fact factored into the court’s decision. The evidence important could have initial incident but that aggressor revealed Cave had been the this Rather, out. the two appellant fight had not stabbed Cave when first broke had the the knife. separated, appellant opportunity pull men were Cave knife, Cave, he chased after attempted withdraw when saw *5 down, may him and stabbed him. This fact well have factored into the tracked that a minimum sentence would demean the serious- court’s determination victim, In to chase the rather light appellant’s ness of the offense. of decision retreat, than him the evidence of a racial motiva- permitting considering record to exists crime, ample evidence we believe tion for the seriousness minimum sentence demeans that a trial court’s determination this offense. of of error is assignment first appellant’s Accordingly, we conclude hereby is overruled.

without merit and

II the trial of error that assignment in his second Aрpellant asserts it before requisite statutory procedure follow the erred because it did not court sentencing-hearing contends Specifically, appellant sentence. imposed that the court considered the seriousness any is devoid of indication transcript 2929.12(C) 2929.12(B) factors in R.C. before mitigating or the factors R.C. agree. sentence. We imposed 2929.12(A) felony a sentence has imposing that a trial court R.C. states way comply purposes effective with the

discretion to determine the most discretion, In exercising 2929.11. of set forth principles (C) 2929.12(B) that relate however, in R.C. courts must ‍​‌​​​​​​​‌‌‌​​​​‌‌‌​​​‌‌​​‌​​​​​​​‌​‌‌‌‌​​‌​‌​​​‍consider the factors that tend to make a crime more of the conduct. Factors to the seriousness 2929.12(B), out in R.C. as follows: serious are set

(1) by the victim of the offense due injury or mental suffered physical of the or mental physical of the offender was exacerbated because the conduct of the victim. age condition or

(2) or physical, psychological, serious The victim of the offense suffered harm as a result of the offense. economic

(3) community, a or of trust in the public position The offender held office position. the offense related to that office or (4) office, or the offend- occupation, profession obliged The offender’s elected justice. it to bring committing er to the offense or others prevent (5) office, or elected or professional reputation occupation, The offender’s future likely was used to facilitate the offense or is to influence the profession conduct of others.

(6) The offender’s with the victim facilitated the offense. relationship (7) a an part organized committed the offense for hire or as The offender activity. criminal

(8) offense, by prejudice In the offender was motivated committing orientation, race, background, gender, religion. ethnic sexual based on (9) 2919.25 or a violation of section If the offense is violation section 2903.11, 2903.12, involving person who was a or 2903.13 of the Revised Code violation, commit- at the time of the the offender family or household member *6 82 in vicinity

ted the offense the of one or more children who are not victims of offense, parent, guardian, the and the offender or the victim of the offense is a custodian, person parentis or in loco of one or more of those children. Factors that tend to make a crime less serious are set out in R.C. {¶ 18} 2929.12(C),as follows:

(1) The victim induced or facilitated the offense.

(2) offense, In committing the the offender acted under strong provocation. (3) offense, In committing the the offender did not cause or to cause expect any harm to physical person property.

(4) conduct, There are grоunds mitigate substantial the offender’s al- though grounds the are not to constitute a defense. enough the in Although sentencing entry this case makes an reference oblique 2929.12, to the effect that the trial court in considered those factors set out R.C. why contains no discussion of those factors or trial explanation the court decided appellant to sentence to a term imprisonment year one below the maximum Moreover, appellant correctly points allowable sentence. out that nothing the transcript indicates that the trial court considered the during factors the sentenc- ing hearing. 2929.12(A) recognize We that R.C. does not require sрecific find (B) (C).

ings particular Mustard, as to each ‍​‌​​​​​​​‌‌‌​​​​‌‌‌​​​‌‌​​‌​​​​​​​‌​‌‌‌‌​​‌​‌​​​‍factor in subsections State v. 04CA724, 2004-Ohio-4917, App. ¶ 23; Pike No. 2004 WL at State v. (Nov. 18, 1998), 97CA57, Orlando App. Lawrence No. 1998 It WL 823758. is if sufficient the record an supports inference the court has examined the ¶ Mustard, (Oct. 23; supra, 30, 2001), factors. at Cody State v. Washington App. 00CA56, 1346127; Fisher, No. 2001 WL also see State v. Lake App. No. 2002-L- ¶ 020, 2003-Ohio-3499, 2003 (findings WL 11 by mаndated appear 2929.12 must either in the judgment, of the transcript exercise).3 hearing, or somewhere on the in the sentencing record record case, however, this is too scant to allow an fully inference the trial court considered the requisite factors. above, As mentioned although the court referred to R.C. 2929.12 sentenсing entry,

its there is no of any specific discussion of the factors parenthetically Judge 3. We requiring note that Griffin and Professor Katz favor trial courts to specify apply helped “on the record the factors which in the case and which to determine the Katz, (2002 Ed.) 60, imposed.” Felony Sentencing sentence Griffin & Ohio Law Author’s Although insightful anаlysis Comments —2929.12-III. this Court often relies on the these law, experts bring highly previous to this convoluted we area of nevertheless adhere to our Cody provide only decisions in Mustard and that the record need an inference that the court requisite considered the factors. entry to in that of the facts (B) (C), any discussion nor is there subsections as factors. Insofar fully considered that the court to an inference rise give was that R.C. 2929.12 concerned, to indicate nothing we find is transcript make trial court does note that the We sentence. prior imposing considered sentence, bearing on have had may transcript in the comments several crime, cooperated appellant this racial motivation for was a that there including record, criminal prior a minimal had *7 prosecution, with the comments, however, These proceedings. end of the until the lacked remorse longest the “impose whether the court’s decision in the context of made were 2929.14(C) than rather R.C. court fоcused on term,” the suggests which prison considered, inference 2929.12(B) (C). we find no All things (C) (B) of that factors in subsections requisite the court considered sentence. nine-year it the imposed before statute to the Edmonson syllabus and by referring, again, state counters 22} {¶ the R.C. 2929.12 discuss required specifically is not that the trial court argues the Edmon- however, of language because reject argument, this factors. We 2929.14(B) that a determination only to an R.C. son applies that it syllabus shows Nothing of the offense. demeans the seriousness minimum sentence a court must do Edmonson what opinion addresses syllabus to R.C. 2929.12. reference above, provide trial courts Further, require we do not as we stаte provides record some long As as the analysis of the statute.

factor-by-factor (C) 2929.12(B) factors, we will considered the R.C. inference that the court (A). case, however, In this the mandates of subsection that it has satisfied hold such an inference. the record does not of reasons, assignment second hereby appellant’s we sustain For these imposing of however, propriety on the pass that we do not emphasize,

error. We Rather, that the trial court has only we hold in this case. nine-year sentence factors statutory before requisite it considered the not demonstrated imposed sentence. error, the trial court’s of assignment the second Having sustained

{¶25} reversed, remanded for this matter is hereby judgment is opinion.4 with this resentencing consistent part affirmed in

Judgment in part, and reversed remanded. and cause J., Harsha, concurs. ‍​‌​​​​​​​‌‌‌​​​​‌‌‌​​​‌‌​​‌​​​​​​​‌​‌‌‌‌​​‌​‌​​​‍opinion be emphasize should not again, we that our time and time

4. As we have noted expertise nothing of problem has to do with trial court. The as criticism of the construed J., judgment concurs and in the as to its opinion discussion of Kline, of error I and dissents as to its assignment assignment discussion of of error II.

COMMUNICARE, INC., Appellant,

v. COMMISSIONERS, Appellee. COUNTY BOARD WOOD OF CommuniCare, Commrs., Cty. as Inc. v. [Cite Wood Bd. of App.3d 2005-Ohio-2348.] Ohio, Appeals

Court District, County. Sixth Wood No. WD-04-057. May Decided 2005. *8 either the trial court everything Scioto Prosecutor but to do with the confusion complexity guise revamped felony unleashed in 1995 under the laws. See (2001), 615, 619, generally 80; App.3d State v. Grodhaus 144 Ohio 761 N.E.2d State v. (2001), 274, 282-283, App.3d McPherson 755 N.E.2d 426.