STATE OF OHIO, Plаintiff-Appellee, v. WAYNE B. RUSSELL, JR., Defendant-Appellant.
CASE NO. 2019-L-138
IN THE COURT OF APPEALS, ELEVENTH APPELLATE DISTRICT, LAKE COUNTY, OHIO
2020
2020-Ohio-3243
MARY JANE TRAPP, J.
Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2019 CR 000479. Judgment: Affirmed.
OPINION
Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).
Vanessa R. Clapp, Lake County Public Defender, and Melissa A. Blake, Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant-Appellant).
MARY JANE TRAPP, J.
{¶1} Appellant, Wayne Russell Jr. (“Mr. Russell“), appeals the judgment of the Lake County Court of Common Pleas sentencing him to consecutive prison terms of 60 months for one count of gross sexual imposition, a felony of the third degree, and 60 months each for seven counts of sexual battery, felonies of the third degree, for aggregate prison terms of 480 months, following his guilty pleas.
{¶3} Mr. Russell raises two assignments of error. First, he challenges the trial court‘s imposition of maximum prison terms for his individual sentences. He argues that his sentences are contrary to law because the trial court was not guided by the third purpose of felony sentencing under
{¶4} Second, Mr. Russell challenges the trial court‘s imposition of consecutive sentences. He argues that the trial court‘s findings under
{¶5} Aftеr a careful review of the record and pertinent law, we find as follows:
{¶6} First, Mr. Russell has not established by clear and convincing evidence that his individual sentences are contrary to law for the following reasons:
{¶7} (a) Since the trial court expressly considered rehabilitation, Mr. Russell has not established that the trial court was not “guided” by the third purpose of felony sentencing or that his prison terms were not reasonably calculated to achieve all three purposes.
{¶9} (c) The trial court‘s determinations under
{¶10} (d) Even if the trial court‘s determinations under
{¶11} Second, Mr. Russell has not established by clear and convincing evidence that the trial court‘s imposition of consecutive sentences is contrary to law or that the trial court‘s findings are not supported by the record for the following reasons:
{¶12} (a) A trial court‘s finding under
{¶13} (b) The trial court‘s finding under
{¶14} (c)
{¶16} Thus, we affirm the judgment of the Lake County Court of Common Pleas.
Substantive and Procedural History
{¶17} In July 2019, the Lake County Grand Jury indicted Mr. Russell on 23 counts, consisting of three counts of gross sexual imposition, felonies of the third degree, in violation of
{¶18} The charges allege that Mr. Russell engaged in sexual contact or conduct with the minor niece of his fiancé on several occasions beginning in June 2014 through March 2019.
{¶19} At a plea hearing, Mr. Russell withdrew his former pleas of not guilty and entered written and oral pleas of guilty to one count of gross sexual imposition (Count 3), relating to the time period from June 2016 through June 2017 when the victim was 12 years old, and seven counts of sexual battery (Counts 5, 7, 11, 15, 19, 21, and 23), relating to the time period from April 2018 through March 2019 when the victim was 13 and 14 years old.
The Sentencing Hearing
{¶21} At the sentencing hearing, Mr. Russell‘s attorney indicated that Mr. Russell recognized that he engaged in inappropriate conduct and that a prison sentence is an appropriate consequence. She asked the trial court to impose concurrent prison terms of 24 months on each count for a total prison term of two years.
{¶22} Mr. Russell spoke on his own behalf and apologized for his actions. The trial court then engaged Mr. Russell in a colloquy regarding the factual bases of his current offenses and his prior juvenile adjudications, including rape and gross sexual imposition involving his four- or five-year-old adopted brother.
{¶23} The victim addressed the court, as did her mother and aunt.
{¶24} The state requested a lengthy prison term based on Mr. Russell‘s position of power and trust as an “uncle figure” to the victim, his history of sex offenses, and his lack of genuine remorse.
{¶25} In imposing Mr. Russell‘s sentence, the trial court engaged in a lengthy discussion of its reasoning. As to the purposes and principles of felony sentencing set forth in
{¶26} “I‘ve considered the applicable statutes, that being 2929.11 regarding the purposes and principles of felony sentencing, the overriding purpose being to punish the offender and protect the public from future crime by the offender and others using the minimum sanction that I determine accomplishes these purposes. I considered the need
{¶27} The trial court also stated that it reviewed the presentence report, the victim impact statements, and the comments from those who addressed the court and that it considered the seriousness and recidivism factors set forth in
{¶28} As to the seriousness factors under
{¶29} As to recidivism factors under
{¶30} The trial court ultimately sentenced Mr. Russel to a prison term of 60 months for gross sexual imposition (Count 3) and prison terms of 60 months each for the seven counts of sexual battery (Counts 5, 7, 11, 15, 19, 21, and 23), all to be served
{¶31} “And I find that consecutive sentences are necessary to protect the public from future crime by you and to punish you and they are not disproportionate to the seriousness of your conduct and to the danger you pose to the public because obviously you‘re engaging in this conduct, you don‘t care what [e]ffect it has or you can‘t stop engaging in this conduct. Either way you pose an extreme danger to the public.
{¶32} “And I find that at least two of these offenses are committed as part of one or more courses of conduct and thе harm caused by at least two of the offenses was so great or unusual that no single prison term for any of these offenses committed as part of this conduct adequately reflects the seriousness of your conduct. You‘ve got a history of criminal conduct as I indicate that demonstrates that a consecutive sentence is necessary to protect the public from future crime by you.”
The Appealed Judgment Entry
{¶33} The trial court subsequently issued a sentencing entry memorializing Mr. Russell‘s guilty pleas and sentences. The trial court‘s sentencing entry states, in relevant part, as follows:
{¶34} “The Court has also considered the record, oral statements, any victim impact statement, pre-sentence report and/or drug and alcohol evaluation submitted by the Lake County Adult Probation Department of the Court of Common Pleas, as well as the principles and purposes of sentencing under
{¶35} “In considering the foregoing, and for the reasons stated on the record, this Court finds that a prison sentence is consistent with the purposes and principles of sentencing set forth in
{¶36} With respect to the imposition of consecutive sentences, the trial court court‘s sentencing entry states:
{¶37} “Pursuant to
{¶38} Mr. Russell timely appealed and raises the following two assignments of error for our review:
{¶39} “[1.] The trial court erred by sentencing the defendant-appellant to individual, maximum prison terms of 60 months on each count, as the trial court‘s findings with respect to
{¶40} “[2.] The trial court erred by sentencing the defendant-appellant to serve the individual, maximum prison terms consecutively when the consecutive sentences were unsupported by the record and thus, contrary to law.”
Individual Felony Sentences
{¶41} In his first assignment of error, he challenges the trial court‘s imposition of maximum prison terms for his individual felony sentences.
Standard of Review
{¶42} The standard of review for individual felony sentences is governed by
{¶43} “The court hearing an appeal under division (A), (B), or (C) of this section shall review the record, including the findings underlying the sentence or modification given by the sentencing court.
{¶44} “The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court‘s standard of review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:
{¶45} “(a) That the record does not support the sentencing court‘s findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;
{¶46} “(b) That the sentence is otherwise contrary to law.”
{¶48} Appellate courts “may vacate or modify any sentence that is not clearly and convincingly contrary to law only if the appellate court finds by clear and convincing evidence that the record does not support the sentence.” Marcum at ¶ 23.
{¶49} Clear and convincing evidence is 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 trier of facts a firm belief or conviction as to the facts sought to be established. Marcum at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.
{¶50} We have recognized that the “clear and convincing standаrd” is “highly “deferential, as it “is written in the negative. It does not say that the trial judge must have clear and convincing evidence to support its findings. Instead, it is the court of appeals that must clearly and convincingly find that the record does not support the court‘s findings.” State v. Taeusch, 11th Dist. Lake No. 2016-L-047, 2017-Ohio-1105, ¶ 13, quoting State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891, ¶ 21.
R.C. 2929.11(A)
{¶51} Within his first assignment of error, Mr. Russell argues that his individual felony sentences are contrary to law because the trial court “failed to be guided by” the
{¶52}
{¶53} To “achieve those purposes,” the trial court “shall consider the need for [1] incapacitating the offender, [2] deterring the offender and others from future crime, [3] rehabilitating the offender, and [4] making restitution to the victim of the offense, the public, or both.”
{¶54} A felony sentence “shall be reasonably calculated to achieve the three overriding purposes of felony sentencing set forth in division (A) of this section, commensurate with and not demeaning to the seriousness of the offender‘s conduct and its impact upon the victim, and consistent with sentences imposed for similar crimes committed by similar offenders.”
Rehabilitation
{¶55} Mr. Russell contends that the trial court‘s failure to acknowledge the third purpose of felony sentencing constitutes clear and convincing evidence that the trial court
{¶56} We have previously held that a trial court‘s nearly identical comments do not clearly and convincingly demonstrate that the trial court was not “guided” by the third purpose of sentencing. See State v. Anthony, 11th Dist. Lake No. 2019-L-045, 2019-Ohio-5410, ¶ 78, appeal not accepted, 158 Ohio St.3d 1467, 2020-Ohio-1393. As in Anthony, the trial court expressly stated at the sentencing hearing that it considered rehabilitation. Id.; see also State v. Banas, 11th Dist. Lake No. 2019-L-049, 2019-Ohio-5053, ¶ 14 (holding that the trial court met its statutory obligations under
{¶57} Further, the trial court‘s reference to rehabilitation as a “principle” rather than a “purpose” does not mean it was not guided by rehabilitation or that Mr. Russell‘s sentence was not reasonably calculated to achieve the “purpose” of rehabilitation. A trial court is not required to use sрecific language to demonstrate its consideration of
{¶58} Mr. Russell acknowledges that the sentencing entry indicates the trial court considered all three purposes of felony sentencing. He also acknowledges our holding in Anthony that the inclusion of language in a sentencing entry affirmatively stating that the court considered the purposes of sentencing set forth in
{¶59} Mr. Russell cites no authority for this proposition, and the case law supports the opposite conclusion. It is well-established that a trial court only speaks through its judgment entries. Hairston v. Seidner, 88 Ohio St.3d 57, 58 (2000). If the journal entry and the judge‘s comments conflict, the journal entry controls. State v. Shepherd, 3d Dist. Hardin No. 6-08-16, 2009-Ohio-3315, ¶ 6.
{¶60} Mr. Russell‘s аrgument implies that the trial court‘s imposition of maximum sentences means it did not consider rehabilitation. However, “the trial court possesses broad discretion to determine the most effective way to comply with the purposes and principles of sentencing within the statutory guidelines.” State v. Price, 11th Dist. Geauga No. 2007-G-2785, 2008-Ohio-1134, ¶ 31;
{¶61} Further, as we recognized in Anthony, incarceration is not inconsistent with rehabilitation. Id. at ¶ 85, citing State v. Barrett, 8th Dist. Cuyahoga No. 97614, 2012-Ohio-3948, ¶ 31. A trial court cannot “require” rehabilitation. Id., citing State v. Gilmer, 6th Dist. Ottawa No. OT-05-028, 2005-Ohio-6435, ¶ 7. It is up to a defendant to acknowledge that he needs to rehabilitate himself and take advantage of opportunities that might steer him in that direction. Id. Rehabilitation is a goal Mr. Russell may work toward while serving his sentences.
{¶62} Accordingly, Mr. Russell has not established by clear and convincing evidence that the trial court was not guided by the purpose of rehabilitation in imposing his felony sentences or that his prison terms were not reasonably calculated to achieve all three purposes.
{¶63} Within his first assignment of error, Mr. Russell challenges the trial court‘s determinations under
{¶64} Along with
{¶65}
{¶66} “(1) The * * * mental injury suffered by the victim of the offense due to the conduct of the offender was exacerbated because of the * * * age of the victim.
{¶67} “* * *”
{¶68} “(6) The offender‘s relationship with the victim facilitated thе offense.”
Element of the Offense
{¶69} Mr. Russell contends that the trial court “improperly considered” the victim‘s age under
{¶71} We first note that the relevant inquiry is not whether the trial court‘s “findings” are contrary to law but instead whether the “sentence” is “contrary to law.” See
{¶72} Mr. Russell does not argue that his sentences fall outside the statutory ranges or that the trial court failed to consider the sentencing factors in
“Element of the Offense” Case Law
{¶73} This court has previously acknowledged the case law holding that a trial court may not rely on an element of an offense to enhance the seriousness of an offender‘s conduct. See, e.g., State v. Polizzi, 11th Dist. Lake Nos. 2018-L-063 & 2018-L-064, 2019-Ohio-2505, ¶ 28, appeal not accepted, 157 Ohio St.3d 1442, 2019-Ohio-4211, quoting State v. Sims, 4th Dist. Gallia No. 10CA17, 2012-Ohio-238, ¶ 16;
{¶74} In Polizzi, the defendant was convicted of two counts of gross sexual imposition and six counts of sexual battery. Id. at ¶ 6. The defendant was a teacher to the victims, which was a necessary element of his six sexual battery convictions under
{¶75} As we have recently recognized, however, the holding in Polizzi was that the trial court‘s consecutive sentence findings under
{¶76} In the other cases in which we acknowledged the “element of the offense” case law, we determined that it was not applicable to the facts presented. See Martin at ¶ 26; McBee, at ¶ 31-40; Anthony at ¶ 93-104.
{¶77} However, a review of the “element of the offense” cases indicates they were based on prior versions of the sentencing statutes which the Supreme Court of Ohio found unconstitutional in Foster.
{¶78} For instance, former
{¶79} In addition, former
{¶80} In Foster, the Supreme Court of Ohio held that trial courts “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. However, appellate courts cited the “element of the offense” case law in relation to a trial court‘s consideration of
{¶81} The statutory text of
{¶82} The statutory text contains no exception for factors that may overlap with the elements of an offense. By analogy, federal circuits have held that so-called “double counting” raises no constitutional concerns but is strictly a matter of guidelines interpretation. See United States v. Vizcarra, 668 F.3d 516, 519 (7th Cir. 2012). Therefore, federal circuit courts have held that conduct that forms the factual basis for an element of the offense may also be used to support an enhancement or adjustment under
{¶83} We recognize that in many instances, an element of an offense cannot make an offender‘s conduct more serious than conduct normally constituting the offense. However,
{¶84} According to the Second District, this “uniform application neutralizes the matter, sо as to make any one instance of [the applicable offense] no more or less serious than any others founded on the same statutory grounds. In other words, every person who is found guilty of committing the offense is subject to a like result, at least with reference to the same finding of seriousness.” Id.
{¶85} Plus, the Supreme Court of Ohio has made clear that “there is no mandate for judicial fact-finding” in
{¶86} To the extent the trial court makes
R.C. 2929.12(B) Analysis
{¶87} In the present case, Mr. Russell‘s sentences fall within the statutory ranges. The trial court expressly considered the applicable sentencing factors under
{¶88} Further, we find that the present case is distinguishable from thе “element of the offense” cases.
{¶89} The offense of gross sexual imposition under
{¶90} In addition, the offense of sexual battery under
{¶91} At the sentencing hearing, the trial court stated that Mr. Russell‘s relationship with the victim facilitatеd the offense under
{¶92} The application of
{¶93} In addition, the trial court did not expressly base its
{¶94} Finally, even if the trial court improperly considered elements of the offense under
{¶95} In sum, Mr. Russell has not established by clear and convincing evidence that his individual felony sentences are contrary to law.
{¶96} Mr. Russell‘s first assignment of error is without merit.
Consecutive Felony Sentences
{¶97} In his second assignment of error, Mr. Russell challenges the trial court‘s imposition of consecutive prison terms for his multiple felony offenses.
Standard of Review
{¶98} The standard of review for the imposition of consecutive prison terms is governed by the clearly and convincingly standard set forth in
{¶100} Pursuant to
{¶101} “(a) The offender committed one or more of the multiples offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to
section 2929.16 ,2929.17 , or2929.18 of the Revised Code, or was under post-release control for a prior offense.{¶102} “(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.
{¶103} “(c) The offender‘s history of criminal conduct demonstrates that consecutivе sentences are necessary to protect the public from future crime by the offender.”
Disproportionality - Seriousness of Conduct
{¶105} Mr. Russell argues that since the trial court‘s findings under
{¶106} It appears Mr. Russell is arguing that his consecutive sentences are contrary to law. However, the Supreme Court of Ohio has held that consecutive sentences arе contrary to law if the trial court does not make the findings mandated by
{¶107} Mr. Russell cites no authority holding that a trial court‘s finding under
{¶108} Accordingly, Mr. Russell has not established that the trial court‘s finding that consecutive sentences are not disproportionate to the seriousness of his conduct is contrary to law.
Disproportionality - Danger to the Public
{¶109} Mr. Russell argues that trial court‘s finding that consecutive sentencеs are not disproportionate to the danger he poses to the public is not supported by the record and “as such, is contrary to law.”
{¶110} We note that whether a trial court‘s finding under
{¶111} According the Supreme Court of Ohio, “the record must contain a basis upon which a reviewing court can determine that the trial court made the findings required by
{¶112} Mr. Russell contends the trial court found Mr. Russell was a danger to the public based on his criminal history. According to Mr. Russell, he is not a danger to the public based on his adult criminal history.
{¶114} Mr. Russell may be referencing the trial court‘s additional statement: “You‘ve got a history of criminal conduct as I indicate that demonstrates that a consecutive sentence is necessary to protect the public from future crime by you.” Despite similar language, this statement constitutes an additional finding under
{¶115} Evidence in the record supports the trial court‘s finding regarding Mr. Russell‘s danger to the public. The record reflects that Mr. Russell was adjudicated for rape and gross sexual imposition involving his 4 or 5-year old adopted brother for which he spent time in the Department of Youth Services. His conduct involving the victim spanned sеveral years, beginning when she was 10 years old and ending a few months prior to his indictment.
{¶116} After committing the charged offenses, Mr. Russell engaged in sexual conduct with the victim‘s 16-year-old sister. A defendant‘s uncharged yet undisputed conduct may be considered in sentencing without resulting in error when it is not the sole basis for the sentence. State v. Cooper, 8th Dist. Cuyahoga No. 93308, 2010-Ohio-1983, ¶15.
{¶118} Thus, evidence in the record supports the trial court‘s finding regarding Mr. Russell‘s danger to the public.
Demeaning the Seriousness of Violent Crimes
{¶119} Finally, Mr. Russell argues that the trial court‘s imposition of consecutive sentences demeans the seriousness of other more violent crimes.
{¶120} Mr. Russell cites to State v. Overholser, 2d Dist. Clark No. 2014-CA-42, 2015-Ohio-1980, where the Second District reversed the defendant‘s consecutive sentences totaling 20 years on five counts of gross sexual imposition. Id. at ¶1, 33. The trial court determined that the reсord did not support that trial court‘s finding under
{¶121} Mr. Russell also cites to this court‘s decision in Polizzi, where we reversed consecutive sentences totaling 33 years on six counts of sexual battery based, in part, on our determination that the sentence “would demean the seriousness of other more violent crimes.” Id. at ¶36, citing Overholser at ¶32.
{¶123} Regardless of its origins, the Overholser holding is not supported by the statutory text of
{¶124} The Supreme Court has held in another setting that in order to find that two offenses were part of a single course of conduct, a trial court “must * * * discern some connection, common scheme, or some pattern or psychological thread that ties [the offenses] together.” (Citation omitted.) State v. Sapp, 105 Ohio St.3d 104, 2004-Ohio-7008, syllabus. It may be established by factual links, including time, location, weapon, cause of death, or similar motivation. Id. at ¶52. In addition, the court may consider information beyond that strictly related to the offenses of which a defendant is convicted. State v. Smith, 2d Dist. Montgomery No. 28265, 2019-Ohio-5015, ¶71.
{¶126} Thus, there is no language requiring the trial court to also find that consecutive sentences would not demean the seriousness of more violent crimes. The provision does not reference other offenders, nor does it require the trial court to distinguish between violent or non-violent offenses or between physical and psychological harm.
R.C. 2929.14(C)(4)(b) Analysis
{¶127} In addition to the problematic legal basis of Overholser, thе facts of this case, as demonstrated in the record, are distinguishable.
{¶128} In Overholser, the defendant pleaded guilty to five counts of gross sexual imposition involving a male victim who was 11 years old at the time of the offenses involving a time period of approximately four months. Id. at ¶1-2, 4. The trial court sentenced him to consecutive sentences of four years in prison on each count, for an aggregate prison term of 20 years. Id. at ¶1.
{¶129} The Second District noted that the defendant was 21 years old at the time offenses, had led a lawful life prior to the offenses, had not been adjudicated a delinquent child, had no adult criminal history, had been an outstanding high school student, and had been consistently employed. Id. at ¶29. His risk of recidivism was low in all categories. Id. at ¶30. The defendant apologized to “every single person” that he had affected by his poor choices, acknowledged he had “hurt somebody,” and expressed regret and shame. Id. at ¶31.
{¶131} In Polizzi, the defendant was a teacher at a Christian high school who had inappropriate relationships with two of his students. Id. at ¶2. One relationship took place in 2008, and the other in 2010. Both victims were 17 years old when the conduct began and were 18 years old when the conduct terminated. Id. The defendant pleaded guilty to one count of gross sexual imposition and three counts of sexual battery in each of two cases. Id. at ¶6. The trial court sentenced him to consecutive, maximum sentences for each offense in both cases, for an aggregate prison term of 33 years. Id. at ¶¶1, 17-18.
{¶132} This court found that other than lack of remorse, there was no support in the record to conclude that the defendant was likely to reoffend based on his lack of criminal history before and for many years after the offenses, the letters of support to his character, and his inability to teach or have interactions with minors under similar circumstances due to his sex offender status. Id. at ¶31. We further found that there was little to no support in the record for a finding that the defendant was a danger to the public at large. Id. As to the trial court‘s finding under
{¶133} Here, Mr. Russell has not led an otherwise law-abiding life. He has a history of adjudications and convictions, including an adjudication for rape and gross sexual imposition involving his four- or five-year-old adopted brother for which he spent time in the Department of Youth Services.
{¶134} In addition, Mr. Russell‘s conduct was particularly egregious. Mr. Russell was an uncle-figure to the victim, and he used his relationship with her aunt to take advantage of her. His conduct involving the victim spanned several years, beginning when she was 10 years old and ending a few months prior to his indictment. After committing the charged offenses, Mr. Russell engaged in sexual conduct with the victim‘s 16-year-old sister.
{¶135} Further, the record suggests recidivism is likely and that Mr. Russell poses a danger to the public. As indicated, Mr. Russell‘s behavior suggests a pattern of inappropriate conduct involving children, particularly those in which he has some type of family relationship. In his presentence report, Mr. Russell demonstrated concern with the impact of his offenses on himself but not on the victim. At sentencing, Mr. Russell indicated that he knew his actions were wrong but did them anyway.
{¶136} The record also suggests the harm to the victim in this case was greater. The trial court found that the victim suffered serious psychological harm based on a letter from her psychiatrist setting forth current diagnoses related to a history of sexual trauma.
{¶138} Thus, in contrast to Overholser and Polizzi, the record amply supports the trial court‘s finding under
R.C. 2929.14(C)(4)(c)
{¶139} Even if the trial court‘s finding under
{¶140} Notably,
{¶141} Further, while juvenile delinquency proceedings are civil in nature, they necessarily involve a juvenile‘s commission of conduct that would constitute a criminal
{¶142} As demonstrated above, the record supports a finding that Mr. Russell‘s history of sex offenses involving minors presents a risk of recidivism that poses a danger to the public.
{¶143} In sum, Mr. Russell has not established by clear and convincing evidence that the trial court‘s imposition of consecutive sentences is contrary to law or unsupported by the record.
{¶144} Mr. Russell‘s second assignment of error is without merit.
{¶145} Based on the foregoing, the judgment of the Lake County Court of Common Pleas is affirmed.
CYNTHIA WESTCOTT RICE, J.,
THOMAS R. WRIGHT, J.,
concur.