STATE OF OHIO, PLAINTIFF-APPELLEE, v. STEVEN R. SNYDER, DEFENDANT-APPELLANT.
CASE NO. 13-12-38
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY
May 20, 2013
[Cite as State v. Snyder, 2013-Ohio-2046.]
ROGERS, J.
Trial Court No. 11 CR 0083
Appeal from Seneca County Common Pleas Court Trial Court No. 11 CR 0083
Judgment Affirmed in Part, Reversed in Part and Cause Remanded
Date of Decision: May 20, 2013
APPEARANCES:
Susan J. Moran for Appellant
Derek W. DeVine and Rhonda L. Best for Appellee
{1} Defendant-Appellant, Steven R. Snyder, appeals the judgment of the Court of Common Pleas of Seneca County sentencing him to a total prison term of 53 months for his convictions on attempted illegal use of a minor in nudity-oriented material, pandering obscenity involving a minor, and tampering with evidence. On appeal, Snyder argues that the trial court erred by: (1) imposing a sentence that was contrary to law; (2) improperly considering the purposes and principles of felony sentencing; (3) prohibiting him from participating in certain prison programs; (4) imposing consecutive sentences; (5) misinterpreting his Ohio Risk Assessment System (“ORAS“) score; and (6) failing to merge his conviction for attempted illegal use of a minor in nudity-oriented material with his conviction for pandering obscenity involving a minor for the purposes of sentencing. Snyder also claims that the State engaged in prosecutorial misconduct by referring to purportedly unsubstantiated allegations at the sentencing hearing. For the reasons that follow, we affirm in part and reverse in part the trial court‘s judgment.
{2} On June 15, 2011, the Seneca County Grand Jury indicted Snyder on three counts. Count I was for illegal use of a minor in nudity-oriented materials in violation of
{3} The indictment arose from Snyder‘s activities on April 6, 2011. At that time, he was staying at his cousin‘s residence. When Snyder‘s cousin left to run an errand, Snyder was left to supervise his cousin‘s two-year old daughter. While supervising the child, Snyder changed her diaper and as he did so, he took several pictures of the child‘s naked body on his cellular phone. Shortly thereafter, the wife of Snyder‘s cousin discovered the pictures on Snyder‘s phone and reported them to the police.
{4} The child was taken to the hospital so that she could be examined for the possibility of sexual assault. Meanwhile, the police arrested Snyder and executed a search in which they seized his laptop computer and phone. They were unable to recover any nude pictures of the child from Snyder‘s phone. However, a forensic analysis of Snyder‘s computer revealed several files containing child pornography. It also showed that several other files containing pornographic images had been deleted.
{5} On October 5, 2011, Count I was amended to attempted illegal use of a minor in nudity-oriented material, a felony of the third degree. Snyder pleaded guilty to Count I, as amended, and Counts II and III, as originally indicted. In
{6} Snyder appealed the trial court‘s sentence to this court. We affirmed in part and reversed in part the trial court‘s original order. We found that the trial court did not err in failing to merge Snyder‘s convictions for the purposes of sentencing. State v. Snyder, 3d Dist. No. 13-11-37, 2012-Ohio-3069, 16 (“Snyder I“). However, we found that the trial court erred in failing to apply House Bill 86 (“H.B. 86“) when sentencing Snyder. Id. at 22. Consequently, we vacated Snyder‘s original sentence and remanded this matter for de novo sentencing in accord with H.B. 86. Id. at ¶ 28. We further instructed the trial court to resentence Snyder “based upon actual facts that are in the record, and not merely unsupported conjecture about future possibilities.” Id. at 26.
{7} On remand, the trial court conducted a sentencing hearing on August 23, 2012. According to the Presentence Investigation Report (“PSIR“) offered into the record, Snyder has no previous criminal convictions. The PSIR lists Snyder‘s ORAS score as indicating a low risk. But, it also includes a professional overridе of the low-risk indication and suggests that Snyder‘s actual risk level is “very high due to the nature of the offense.” (PSIR, p. 17). Further, the PSIR found that “[t]here was no physical harm to [the victim] expected or caused.” (Id. at p. 19).
{9} The State also offered two victim impact statements into the record. The victim‘s mother completed the first statement, which prompted her to describe the physical and psychological effects of Snyder‘s crimes. In response to both prompts, the mother indicated that the crime had caused no physical or psychological effects. The second victim impact statement did not refer to any physical or psychological harm suffered by the victim.
{10} After Snyder offered his own statement of remorse at the hearing, the trial court discussed its consideration of the record:
The Court has considered the record, has considered the oral statements made today, has reviewed the two victim impact statements, has again reviewed the presentence investigation report prepared in this case.
The Court has considered the principals [sic] and purposes of felony sentencing under Revised Code Section 2929.11.
The Court will be reviewing for the record and balancing the seriousness and recidivism factors under Ohio Revised Code Section 2929.12.
***
The Court has looked at and reviewed carefully the presentence investigation report. And on page 17, while it shows an ORAS score of eight, risk of, or below there is a professional override indicated that says, “Yes, very high due to the nature of the offense” on page 17.
The Court has looked at the seriousness factors where two of them have been marked by the presentence report under [R.C.] 2929.12(B): “Injury to victim was worsened by the physical or mental condition or age of the victim and the offender‘s relationship with the victim facilitated the offense.”
The less serious offense considerations under [R.C.] 2929.12(C) was [sic], “there was no physical harm to persons or property expected or caused” marked.
Under “recidivism factors” under [R.C.] 2929.12(D) none of them are marked.
***
The Court has looked at the recommendation in the presentence investigation report and is of the opinion there should be a professional override based on that recommendation. Tr., p. 17-19.
Based on the consideration of the above items, the trial court found that “a prison term is consistent with the purposes and principals [sic] of felony sentencing * * * and that the shortest prison term * * * will not adequately protect the рublic from future crime by [Snyder] or others.”1 Tr., p. 24.
{11} The trial court then determined that consecutive sentences were appropriate:
After consideration of everything, the victim impact statements, the offenses convicted, the fact involving the convictions as related by the statements of the prosecution, and their oral statements to the Court, after a careful review of 22 pages of presentence investigation report, and all other matters of record in this case, this Court continues to find that consecutive sentences are necessary to protect the public from future crime and to punish, even though it required “or” the Court finds to punish [Snyder].
The Court also finds that consecutive sentences are not disprоportionate to the seriousness of [Snyder‘s] conduct and to the danger to [sic] the offender poses to the public.
The Court finds that at least two of the multiple offenses, Counts One and Two 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 the courses of conduct adequately reflects the seriousness of [Snyder‘s] conduct, Revised Code Section 2929.14(C)(4). Tr., p. 25-26.
{12} Accordingly, the trial court sentenced Snyder to “serve a stated prison term of 35 months * * * on Count One, a stated prison term of 17 months * * * on Count Two, and a stated prison term of 12 months * * * on Cоunt Three.” Tr., p. 27. Further, the sentences for Counts I and II were ordered to be served consecutively to each other while Snyder‘s sentence for Count III was to be served concurrently with his terms for Counts I and II.
{13} The trial court issued a judgment entry of re-sentence on September 19, 2012 in which it journalized the above findings. The judgment entry also indicated that the trial court imposed the same sentences for Counts II and III as it had at the sentencing hearing. However, instead of imposing a 35-month prison term for Count I, the trial court‘s judgment entry imposed a 36-month prison term
{14} Snyder timely appealed from this judgment, presenting the following assignments of error for our reviеw.
Assignment of Error No. I
THE TRIAL COURT ERRED BY IMPOSING A THIRTY-FIVE MONTH SENTENCE WHICH WAS CONTRARY TO LAW.
Assignment of Error No. II
THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A PRISON SENTENCE CONTRARY TO R.C. 2929.14 AND THE PURPOSES AND PRINCIPLES OF THE FELONY SENTENCING GUIDELINES.
Assignment of Error No. III
THE TRIAL COURT ERRED WHEN IT PROHIBITED THE APPELLANT FROM PARTICIPATING IN AVAILABLE PRISON PROGRAMS.
Assignment of Error No. IV
THE TRIAL COURT ERRED BY IMPOSING CONSECUTIVE SENTENCES.
Assignment of Error No. V
THE TRIAL COURT ERRED IN INTERPRETING THE APPELLANT‘S ORAS SCORE.
THE PROSECUTOR COMMITTED MISCONDUCT BY ARGUING UNSUBSTANTIATED ALLEGATIONS AT SENTENCING DEPRIVING THE APPELLANT OF HIS CONSTITUTIONAL RIGHT TO DUE PROCESS.
Assignment of Error No. VII
THE TRIAL COURT ERRED IN CONVICTING AND CONSECUTIVELY SENTENCING ALLIED OFFENSES OF SIMILAR IMPORT WHICH RESULTED IN CUMULATIVE PUNISHMENTS VIOLATING THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION, AS APPLIED TO THE STATES THROUGH THE FOURTEENTH AMENDMENT, AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.
{15} Due to the nature of the assignments of error, we elect to address them out of order.
{16} Before turning to the merits of Snyder‘s assignments of error, we must address the proper scope of the record before us. Snyder has sought to supplement the record with materials purportedly provided to him during discovery.
{17} Additionally, Snyder has attached a variety of “exhibits” to his appellate brief. These exhibits are not included in the appellate record and consequently we also decline to consider them.
Assignment of Error No. I
{18} In his first assignment of error, Snyder asserts that the trial court handed down a sentence for his conviction on Count I that was contrary to law. We agree.
{19} A reviewing court must conduct a meaningful review of the trial court‘s imposed sentence. State v. Daughenbaugh, 3d Dist. No. 16-07-07, 2007-Ohio-5774, ¶ 8. Such review allows the court to “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
{20} Under
{21} Here, the trial court orally imposed a 35-month prison sentence for Snyder‘s conviction on Count I, yet it issued a judgment entry that imposed a 36-month prison sentence. This dichotomy between the trial court‘s orally-imposed sentence and its judgment entry is plainly contrary to the dictates of
{22} Accordingly, we sustain Snyder‘s first assignment of error.
Assignments of Error Nos. II & V
{23} In his second assignment of error, Snyder argues that the trial court failed to properly consider the purposes and principles of felony sentencing when sentencing him on Counts I, II, and III. In his fifth аssignment of error, Snyder contends that the trial court inappropriately relied on the professional override of
Sentencing Factors
{24}
(B) The sentencing court shall consider all of the following that apply regarding the offender, the offense, or the victim, and any other relevant factors, as indicating that the offender‘s conduct is more serious than conduct normally constituting the offense:
The physical or mental injury suffered by the victim of the offense due to the conduct of the offender was exacerbated because of the physical or mental condition or age of the victim.
***
(6) The offender‘s relationship with the victim facilitated the offense:
(C) The sentencing court shall consider all of the following that apply regarding the offense, the offense, or the victim, and any other relevant factors, as indicating that the offender‘s сonduct is less serious than conduct normally constituting the offense:
***
In committing the offense, the offender did not cause or expect to cause physical harm to any person or property.
***
(E) The sentencing court shall consider all of the following that apply regarding the offender, and any other relevant factors, as factors indicating that the offender is not likely to commit future crimes:
Prior to committing the offense, the offender had not been adjudicated a delinquent child.
Prior to committing the offense, the offender had not been convicted of or pleaded guilty to a criminal offense.
Prior to committing the offense, the offender had led a law abiding life for a significant number of years.
{26} In performing its review of the statutory factors, the trial court found that Snyder‘s offenses were more serious than other similar crimes. A review of the record supports this finding. Specifically,
{27} The trial court also found that Snyder presented a high risk to the community. Although several of the statutory factors regarding recidivism
{28} On appeal, Snyder complains that the professional override of the ORAS score was inappropriate and claims that the trial court erred in considering it. But, the record only includes the PSIR‘s recommendation of a professional override and nоt any forms or manuals that were used to develop the recommendation. Since the record produces no basis for finding that the professional override was improper, we are unable to find fault in the trial court‘s reliance on it.
{29} In light of the trial court‘s extensive consideration of the required statutory factors and the evidence supporting its findings regarding the seriousness of Snyder‘s offenses and his likelihood of recidivism, we find that
{30} Accordingly, we overrule in part Snyder‘s second assignment of error and his fifth assignment of error in its entirety.
Assignment of Error No. III
{31} In his third assignment of error, Snyder argues that the trial court erred in precluding him from participating in shock incarceration or an intensive program prison without stating its reasons for the preclusion. We disagree.
{32}
{33}
{34} Here, the trial court failed to explicitly state why it found that Snyder was not amenable to shock incarceration or intensive program prison. In addressing this failure, we need not resolve the foregoing split of authority because it does not rise to the level of reversible error under either view. While the trial court did not strictly comply with the dictates of
{35} Accordingly, we overrule Snyder‘s third assignment of error.
{36} In his fourth assignment of error, Snyder claims that the trial court erred in ordering that his sentences on Counts I and II be served consecutively.6 We agree.
{37}
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 crime 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 finds any of the following:
***
(b) At least two of the multiple offenses were committed as part of one оr 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 the course of conduct adequately reflects the seriousness of the officer‘s conduct.
{38} Here, the trial court ordered that Snyder serve consecutive sentences based on its finding that his offenses caused great or unusual harm. However, a review of the record reveals no evidence to support such a finding. Indeed, the
{39} This evidence indicating a lack of any physical or psychological harm was not controverted at the sentencing hearing. No witnesses testified regarding the purported harm experienced by the victim. Compare State v. Nesser, 5th Dist. No. 02 CA 103, 2005-Ohio-4313, ¶ 19 (finding that consecutive sentences were properly imposed where the victim was three years old and the mother of the victim testified at the sentencing hearing regarding the psychological harm experienced by the victim). Further, the State offered no evidence to support a finding of great harm except for its own characterizations of the harm experienced by the victim and the victim‘s family. These characterizations are not sufficient here since they lack any support in the record. See State v. Nagy, 8th Dist. No. 90400, 2008-Ohio-4703, ¶ 28 (“A prosecutor‘s statements are not testimony or evidence.“); State v. Bruce, 4th Dist. No. 02CA51, 2003-Ohio-4081, ¶ 20 (finding that the trial court erred in imposing consecutive sentences on the basis that the victims suffered great or unusual harm since “there [was] simply no evidence in the record” to support such a finding). Due to the complete dearth of evidence in the record indicating the existence of
{40} Accordingly, we sustain Snyder‘s fourth assignment of error.
Assignment of Error No. VI
{41} In his sixth assignment of error, Snyder contends that the State engaged in prosecutoriаl misconduct during the sentencing hearing by: (1) making unsubstantiated statements as to the contents of the lewd pictures of the victim and Snyder‘s purported touching of the victim; (2) improperly referring to the victim‘s behavior after the incident in which she fought with her mother during diaper changes and a nurse during a medical examination; and (3) indicating that the victim‘s family suffered emotional distress from the incident. We disagree.
{42} Snyder did not object to any of the above statements at the sentencing hearing. As such, he has waived all but plain error. State v. Twyford, 94 Ohio St. 3d 340, 355 (2002). To have plain error under
{44} Here, Snyder challenges the following statements by the prosecutor at the sentencing hearing:
Each of the photos were [sic] focused directly on [the victim‘s vagina] and, most disturbingly, one of the photos showed the victim‘s vagina spread opеn. It‘s difficult, your Honor, to imagine how that photo could have been taken unless [Snyder] had touched the victim.
***
Now, with respect to seriousness factors for this Court to consider that are laid out in the Revised Code, one of those is the potential mental injury to the victim. Now that devastating impact was evident when during the SANE examination the victim attempted to cover her genitals prior to the exam. It was also evident with the fact that the victim fought with her mother in the days after this offense occurred when her mother would try to change the victim‘s diaper. So you can see that was an obviously traumatic experience for the victim.
***
I‘d also like to note the damage done to the parents of the victim and the horror of seeing those pictures on that camera and realizing that their daughter was subjected to that. Tr., p. 3-5.
{45} The prosecutor‘s statements regarding the effect of the crime on the victim‘s family was appropriate since such evidence is allowed so long as the family members do not recommend a certain sentence. See State v. Smith, 97 Ohio St. 3d 367, 2002-Ohio-6659, ¶ 65 (“Victim-impact evidence is permitted where it elicits the effect that the victim‘s death had on family members.“); State v. Condon, 152 Ohio App. 3d 629, 2003-Ohio-2335, ¶ 118 (1st Dist.) (“The trial court may consider relevant statements regarding the impact of the offense on a victim‘s family and friends.“). Snyder cites State v. Williams, 99 Ohio St. 3d 493, 2003-Ohio-4396, in support of his position that trial courts cannot consider the effect of a crime on the victim‘s family when sentencing a defendant. There, the prosecutor made imprоper remarks regarding the effect of the murder on the victim‘s mother to a jury during the penalty phase of a capital murder case. The Court reasoned that since such remarks would have been inadmissible at trial, they were consequently improperly used at the death penalty hearing. Id. at 144. Since this matter does not implicate a death penalty hearing, it is distinguishable from Williams. Unlike the penalty phase of a capital murder case, where the Rules of Evidence apply, State v. Sheppard, 84 Ohio St. 3d 230, 293 (1998), “[i]t is well-established that the Rules of Evidence do not apply to
{46} However, we do find fault in the prosecutor‘s statements regarding the victim‘s “traumatic experience.” There is no evidence in the record to support such a characterization. Rather, as stated above, the record directly contradicts this characterization. Further, the record does not include any corroboration of the prosecutor‘s statements regarding the victim‘s conduct during subsequent diaper changes or the medical examination.
{47} We also find some fault in the prosecutor‘s allegation that Snyder touched the victim inappropriately. The allegation was solely based on the contents of one of the pictures taken by Snyder. The only evidence in the record regarding the picture‘s contents was a police report including the statement of the victim‘s mother to police. Even if the State had offered testimony or other evidence to corroborate the police statement, its allegation would still not be immune from criticism. The mere fact that the victim‘s vagina was spread apart does not necessarily indicate that the victim was inappropriately touched while Snyder was changing her diaper. Further, it is relevant to note that the State did
{48} Although we find varying levels of faults in the above statements, we are nevertheless unable to find that the statements reach the level of plain error and prosecutorial misconduct. See State v. Combs, 62 Ohio St. 3d 278, 283 (1991) (finding that the prosecutor‘s “gross speculation” was improper but that it did not rise to the level of plain error since the statement did not make a “crucial difference“). The record contains sufficient evidence, without reference to the victim‘s harm or Snyder‘s alleged touching, to support the trial court‘s sentences on Counts II and III. Although the trial court cursorily indicated that it considered the State‘s oral statements at the sentencing hearing, it also indicated that it considered the entire record, the victim impact statements, and the PSIR. In light of the trial court‘s consideration of the entire record, we cannot find that several sentences spoken by the prosecutor amount to prosecutorial misconduct that affected the outcome of Snyder‘s sentence.
{49} Accordingly, we overrule Snyder‘s sixth assignment of error.
Assignment of Error No. VII
{51} In State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238, the Supreme Court of Ohio held that “[a]lthough the doctrine of res judicata does not preclude review of a void sentence, res judicata still applies to other aspects of the merits of a conviction, including * * * the lawful elements of the ensuing sentence.” Id. at paragraph three of the syllabus; see also State v. Wilson, 129 Ohio St. 3d 214, 2011-Ohio-2669, ¶ 15 (“[A] number of discretionary and mandatory limitations may apply to narrow the scope of a particular resentencing hearing.“). As a result, after a reviewing court remands for resentencing, “the remainder of the sentence, which the defendant did not successfully challenge, remains valid under the principles of res judicata.” (Internal quotation omitted.) Fischer at ¶ 17. Similarly, under law of the case doctrine, which stems from res judicata, State v. Evans, 9th Dist. No. 10CA0127-M, 2011-Ohio-4992, ¶ 12, “the decision of a reviewing court in a case remains the law of the case on the legal questions involved for all the subsequent proceedings in the case at both the trial and reviewing levels.” (Internal quotation omitted.) Fischer at ¶ 33. Based on these principles, courts have barred defendants from raising allied offenses of
{52} In Snyder I, Snyder argued that Counts I and II were allied offenses of similar import. Although we remanded this matter for re-sentencing, we explicitly rejected his argument regarding allied offenses of similar import and overruled his assignment of error. Snyder I at ¶ 16. As such, our determination in the previous appeal became the law of the case and res judicata bars Snyder from raising the issue again in this new appeal.
{53} Accordingly, we overrule Snyder‘s seventh assignment of error.
No-Contact Order
{54} Although not raised by thе parties, we are compelled to address the trial court‘s imposition of a prison sentence and a no-contact order in its judgment entry of re-sentence for Snyder‘s convictions. Since Snyder did not object to the imposition of these dual penalties, he has waived all but plain error.
{55} “The current felony sentencing statutes * * * require a judge either to impose a prison term or to impose community control sanctions.” (Emphasis added.) State v. Baker, 152 Ohio App. 3d 138, 2002-Ohio-7295, ¶ 12 (7th Dist.).
{56} Here, the trial court both imposed a prison term for Snyder‘s convictions and an order that he not contact the “victims.” Based on the foregoing, the trial court had no authority under the felony sentencing statutes to impose these dual penalties.9 As such, following Miller‘s guidance, we vacate the trial court‘s no-contact order.
PRESTON, P.J., concurs.
SHAW, J., concurs in Judgment Only.
/jlr
Judgment Affirmed in Part, Reversed in Part and Cause Remanded