STATE OF OHIO v. DAVID ORR
No. 101582
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
May 7, 2015
2015-Ohio-1738
Boyle, J., E.T. Gallagher, P.J., and Stewart, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-13-577174-A
JUDGMENT: AFFIRMED AND REMANDED
Kevin M. Cafferkey
1370 Ontario Avenue
2000 Standard Building
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Ronni Ducoff
Mary McGrath
Assistant County Prosecutors
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant, David Orr, appeals his eight-year sentence for three counts of sexual battery and one count of gross sexual imposition, raising a single assignment of error:
The record does not support the
R.C. 2929.14(C) findings by the sentencing court.
{¶2} Finding no merit to the appeal, we affirm but remand to the trial court to issue a nunc pro tunc entry to incorporate the findings made at the sentencing hearing into the journal entry.
Procedural History and Facts
{¶3} Orr, who was 40 years old at the time and a home healthcare aide, committed several sexual offenses against a former patient — a 62-year-old woman. According to the victim, nearly on a daily basis, between June 2, 2012 and October 20, 2012, Orr performed oral sex and had sexual intercourse with the victim without her consent while working as the victim‘s home healthcare aide. The victim, who suffers a host of medical problems, is confined to a wheelchair and dependent on oxygen for support. Orr was arrested for the offenses after the victim presented a washcloth that contained Orr‘s sperm together with the victim‘s DNA.
{¶4} In April 2014, pursuant to a plea agreement, Orr pleaded guilty to an amended indictment containing four counts of sexual battery (amended Counts 1, 2, 3, and 8) in violation of
{¶5} Following Orr‘s guilty plea, the trial court ordered a presentence investigation report (“PSI“), and the parties each submitted a sentencing memorandum to the court.
{¶6} In May 2014, the trial court held the sentencing hearing. Orr‘s counsel addressed
{¶7} The state, however, urged the trial court to impose maximum, consecutive sentences. The prosecutor emphasized that Orr initially denied any sexual contact with the victim when first confronted and then maintained that the relationship was consensual. The prosecutor indicated that Orr told the victim that no one would believe her if she considered reporting the acts. The prosecutor stated that, based on the victim‘s medical issues, “she is totally dependent on her healthcare aide to help her do everything.” The prosecutor further emphasized that Orr “sees his encounters as consensual,” reporting during the PSI the following: “I was there to help the victim and try to make her feel better because she was always sad and crying and I wanted her to feel better, to cheer her up. I don‘t feel as though I was aggressive. I was just doing my work.” Relying on these statements, the prosecutor argued that Orr‘s total disregard for the victim, the victim‘s health conditions, and the abuse of his position as a home healthcare aid warranted maximum, consecutive sentences.
{¶8} After making the required findings under
{¶9} From this order, Orr appeals, challenging the imposition of consecutive sentences.
Standard of Review
{¶10}
Consecutive Sentences
{¶11} In his sole assignment of error, Orr argues that although the court made all the required findings under
A. “Not Disproportionate to the Danger Defendant Poses to the Public”
{¶12} Orr argues that his lack of a prior criminal record and his existing support network preclude any finding that consecutive sentences are not disproportionate to the danger that he
{¶13} Orr had his support network in place at the time that he committed the offenses and yet this support network did not prevent him from committing these offenses. As for this being Orr‘s first felony convictions, this alone does not mandate the imposition of concurrent sentences. Notably, the trial court expressly considered on the record the mitigating factors in Orr‘s favor but ultimately concluded that consecutive sentences were necessary. Specifically, the trial court stated, among other things, the following:
Indicators you‘re more likely to reoffend under
2929.12(D) , there really aren‘t any except what I consider unbelievable lack of insight. You told the Probation Officer, they quoted, “I was there to help [the victim] and try to make her feel better because she was always sad and crying and I wanted her to feel better, to cheer her up.” As somehow having sex with you was the answer to her life problem. You say, “I didn‘t feel as though I was aggressive.” That‘s another quote. Another quote, “I was just doing my work.” Those statements are so incredible and wrongheaded, I don‘t even know where to start.I think all of us who have had parents, aunts, uncles, children in situations where they were given care either in a hospital or nursing home or their own home and to think that any one of those people was abusing them in any way, whether it was stealing from them, whether it was being physically abusive, or whether it was in this case sexually assaulting them, it‘s unthinkable in our society that that should happen. And your statements don‘t reflect any empathy or any understanding of how wrong this is.
I‘m sure you can‘t envision anyone in your family being sexually assaulted by a stranger who is supposed to help them, but that‘s what happened to this lady. And apparently she needs a lot of care and she‘s on her own, and you said no one would believe her about this event. But it is true. It did happen. And it didn‘t just happen once. It happened a period of July and August of 2012 and it happened again between another period September 1st and October 23rd. These were ongoing incidents. She deserves much, much better.
You were not a gift to her in that sense. I mean, she didn‘t — whether you thought she was enjoying this or whatever your thoughts were, that‘s completely wrong. She is a patient. She deserves to be treated with dignity,
respect and good care, and providing a sexual assault is none of those. This is intolerable. No patient should be abused in any way by a caregiver ever. You stole her dignity. And your comments are kind of arrogant. You may not have intended them that way, but that‘s how they sound. You sound like somehow you were gifting yourself to her. This is awful. And you have a family that‘s very accomplished in the community and other activities. They wouldn‘t tolerate this and I‘m sure they‘re wondering how this happened. But it‘s not the victim‘s fault.
{¶14} Orr‘s conduct in this case coupled with his own justification for such conduct support the trial court‘s finding that consecutive sentences are not disproportionate to the danger that Orr poses to the public.
B. “Harm Caused to the Victim”
{¶15} Orr further argues that the record does not support the court‘s finding under
{¶16} According to the record, however, the victim refused to speak with the probation officer as part of the PSI because she is afraid of people that she does not know. There is also other evidence in the record that the victim is now afraid to answer her door. The trial court properly recognized and explained the physical and emotional harm endured by the victim, stating the following:
More significantly, she had health issues that prevented her from walking for any distance. She had to be transported through special care and special caregivers, and she was essentially unable to move much on her own, and she was on oxygen. There couldn‘t have been a person with many more restrictions than
she had that was still living independently. And you took advantage of her. Also the relationship; you were her caregiver among others and you sexually assaulted her, caused her serious physical harm in the sense that any man or woman or child who is sexually assaulted there is physical harm. Also a psychological harm. She doesn‘t want to talk to anyone, answer the phone, go to the door. She doesn‘t have that sense of trust anymore.
{¶17} Based on the totality of the record at the time of sentencing, we cannot say that the record does not clearly and convincingly support the trial court‘s findings under
{¶18} Orr‘s sole assignment of error is overruled.
{¶19} While we affirm the trial court‘s sentence, we remand the case for the limited purpose of having the trial court incorporate, nunc pro tunc, its consecutive findings into the sentencing entry. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus and ¶ 30 (trial court is not only required to make the statutory findings mandated under
{¶20} Judgment affirmed and case remanded.
It is ordered that appellee recover from appellant the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MARY J. BOYLE, JUDGE
EILEEN T. GALLAGHER, P.J., and MELODY J. STEWART, J., CONCUR