State of Ohio v. Brian Kiefer
Court of Appeals No. OT-21-005
Trial Court No. 20 CR 219
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT OTTAWA COUNTY
Decided: September 3, 2021
[Cite as State v. Kiefer, 2021-Ohio-3059.]
MAYLE, J.
DECISION AND JUDGMENT
Christopher S. Maher, for appellant.
MAYLE, J.
{¶ 1} Appellant, Brian Kiefer, appeals the January 8, 2021 judgment of the Ottawa County Court of Common Pleas sentencing him to an aggregate prison term of 75 months
I. Background
{¶ 2} On October 7, 2020, the state filed an information charging Kiefer with five counts of gross sexual imposition in violation of
{¶ 3} At the sentencing hearing, a victim‘s advocate read a statement from the victim into the record. The victim‘s statement detailed her diagnosis with obsessive-compulsive disorder, post-traumatic stress disorder, and anxiety disorder resulting from appellant‘s conduct. The victim also expressed her ongoing fear of bеing around others. The prosecutor described the victim‘s mental health injuries as being exacerbated due to her age at the time of Kiefer‘s offenses and because Kiefer used his familial relationship with her to facilitate the offenses. The prosecutor explained that the state charged Keifer with оnly five counts of gross sexual imposition—even though the abuse occurred on more than five occasions—in an effort “to balance the interests of the victim in reaching
{¶ 4} Kiefer argued extensively that his cooperation with the state and his guilty plea should result in a less severe sanction. Describing his conduct, Kiefer stated that he “developed an obsession” with the victim and “acted in a very controlling manner.” Kiefer acknowledged that the victim‘s “pain and suffering” and “mental health issues” were a result of his conduct. He stated that the victim “will have trouble throughout her entire life because of [his] аctions.” Kiefer also stated that he has been in treatment for his own mental health issues and that he will continue to seek treatment so that he does not repeat his conduct. Kiefer argued that his cooperation with the state, his need for continued treatment, and his low ORAS score warranted the imposition of а community control sanction rather than a prison term.
{¶ 5} At the conclusion of the hearing, the trial court imposed a 15-month prison term for each of Kiefer‘s five convictions. The trial court then ordered Kiefer to serve each prison term consecutively, which resulted in a 75-month aggregate prison term.
The trial court violated Brian Kiefer‘s right to due process when it imposed multiple consecutive sentences because the court‘s findings are not clearly and convincingly suрported by the record.
II. Law and Analysis
{¶ 6} We review felony sentences under
{¶ 7} Thе “clear and convincing evidence” standard is defined as “that measure or degree of proof which is more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of the triеr of facts a firm belief or conviction as to the facts sought to be established.” State v. Mitten, 6th Dist. Sandusky No. S-19-056, 2021-Ohio-89, ¶ 4, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.
{¶ 9} As provided in
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 crimе 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 cоnduct, 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.
{¶ 10} In other words, the trial court must make three statutory findings before imposing consecutive sentences. State v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028, ¶ 252; State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 26. It must find (1) that consecutive sentences are necessary to protеct the public or to punish the offender; (2) that consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger that the offender poses to the public; and (3) that
{¶ 11} Here, Kiefer concedes that the trial court made the required findings under
A. The record supports the trial court‘s finding that consecutive sentences are necessary to punish Kiefer.
{¶ 12} Kiefer argues that while the record supports a prison term, his recognition of the impact of his conduct on the victim shows that consecutivе sentences were not necessary to punish him. According to Kiefer, the record only arguably supports a prison term “between six and eighteen months.”
{¶ 13} Kiefer, however, entered a guilty plea to multiple counts of gross sexual imposition against his minor step-daughter. The victim suffered multiple psychological conditions as a rеsult of his conduct and, by Kiefer‘s own admission, “will have trouble throughout her life because of [his] actions.” Kiefer‘s own belief that he should have received a six-to-eighteen month prison sentence for his crimes does not demonstrate that the trial court erred by concluding otherwise. We find that Kiefer fails to identify clear аnd convincing evidence that the record does not support the trial court‘s finding that consecutive sentences are necessary to punish Kiefer.
{¶ 14} Kiefer argues that his sentence is disproportionate to the seriousness of his conduct because he was convicted of fourth-degree felonies rather than higher-degree offenses. That, he continues, only subjected him to the lowest tier sexual offender registration under
{¶ 15} The record, however, shows that Kiefer‘s conduct was sеrious. He molested his minor step-daughter on numerous occasions. He used his relationship with her to facilitate the offense and she suffered psychological harm as a result. Based on this record, the trial court found that the imposition of consecutive prison terms was not disproportionate to the seriоusness of Kiefer‘s conduct. Kiefer does not identify any evidence in the record—let alone clear and convincing evidence—that the trial court‘s finding is unsupported by the record.
C. The record supports the trial court‘s finding that consecutive sentences are not disproportionate to his danger to the public.
{¶ 16} Kiefer argues that because he received a low ORAS score during his presentencing investigation, and because his score on a diagnostic test administered by a
{¶ 17} First, Kiefer‘s reliance on the trial court‘s consideration of the
{¶ 18} Moreover, the
{¶ 20} Kiefer fails to explain how the imposition of consecutive sentences was disproportionate to the dаnger he poses to the public, particularly in light of the seriousness of his offenses and his development of a sexual obsession with a minor. We find that Kiefer fails to meet his burden of identifying clear and convincing evidence that the trial court‘s finding is not supported by the record.
D. The record supports the trial court‘s finding that Kiefer‘s offenses were committed as one or more courses of conduct resulting in harm that was so great or unusual that no single prison term reflects the seriousness of his conduct.
{¶ 21} Kiefer argues that “the psychological harm suffered by the victim was equivalent to the harm seen in most cases involving the unlawful sexual touching” and was, therefore, not great or unusual. Kiefer cites no evidence to support this assertion and, in fact, the record contains evidence to the contrary.
{¶ 23} Kiefer fails to cite any evidence—let alone clear and convincing evidence—that the trial court erred in finding that the victim suffered “great or unusual” harm due to Kiefer‘s conduct.
III. Conclusion
{¶ 24} In sum, we find that the trial court engaged in the correct analysis when it imposed consecutive sentences and that the record contains evidence to support the trial court‘s findings. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, at ¶ 29. Kiefer failed to identify clear and convincing evidence to show that the trial court erred in making the findings under
{¶ 25} We therefore аffirm the January 8, 2021 judgment of the Ottawa County Court of Common Pleas. Kiefer is ordered to pay the costs of this appeal pursuant to
Judgment affirmed.
Mark L. Pietrykowski, J.
Thomas J. Osowik, J.
Christine E. Mayle, J.
CONCUR.
A certified copy of this entry shall constitute the mandate pursuant to
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.