State v. StoutState v. Stout
{¶1} Defendant-Appellant, Milbur Stout, appeals the March 8, 2013 judgment of the Mahoning County Court of Common Pleas convicting him of two counts of pandering sexually oriented matter involving a minor and two counts of illegal use of a minor in nudity oriented material or performance, and sentencing him accordingly, following an Alford plea. On appeal, Stout raises several sentencing issues. He claims that he qualified for mandatory community control pursuant to
{¶2} First,
Facts and Procedural History
{¶3} On May 5, 2011, a grand jury indicted Stout on two counts of pandering sexually oriented matter involving a minor,
{¶4} After lengthy plea negotiations broke down, the State filed a superseding indictment on October 18, 2012, adding 40 additional counts: 10 counts of pandering obscenity involving a minor,
{¶5} Before the trial court could rule on the motion to dismiss, on January 30, 2013, Stout entered an Alford Plea to two counts of pandering sexually oriented matter involving a minor, (
{¶6} On March 6, 2013, a sentencing hearing was held. Both the State and Stout stipulated that “there is no presumption for or against the Defendant going to prison, that this is something basically the Court will consider on the facts and the circumstances presented in this case.” The State argued for a five-year prison sentence, instead of community control, contending that the physical harm exception in
{¶7} Stout also made a statement in mitigation of punishment. Stout explained that he was the victim of sexual abuse as a young child, estimating that he was raped between 50 and 100 times and was subjected to other acts of sexual violence. He also explained that his father physically abused him from the time that he was 7 or 8 years old until the time that he was 15. He said that in late 1990‘s he began to collect images of child pornography out of anger over the sexual abuse he suffered as a child. He claimed he planned to turn over the images to the authorities; however, he later decided to stop collecting the pictures and abandoned his plan. Stout argued that his attempts to shred the pictures and throw them away were attempts to dispossess the material. He said he deleted the files on his computer and did not know that they could be recovered from the unallocated disk space on his hard drive.
{¶8} After considering the information presented at the hearing, the sex offender risk assessment, the letters of support written by Stout‘s family, the PSI and after reviewing the images themselves, the trial court sentenced Stout to 18 months on Counts One, 18 months on Count Two, 12 Months on Count Three, and 12 months on Count Four. The trial court ran Counts One and Two concurrent with one another, Counts Three and Four concurrent with one another, but Counts Three and One consecutive to one another, for a total of 30 months in prison. The trial court imposed a mandatory term of 5 years of post-release control. Stout was also fined $500 and classified a Tier II sex offender.
Applicability of H.B. 86
{¶9} For clarity of analysis, we must first determine if
{¶10} Section 4 of H.B. 86 provides (emphasis added):
The amendments to sections 926.99, 1333.99, 1707.99, 1716.99, 2909.03, 2909.05, 2909.11, 2913.02, 2913.03, 2913.04, 2913.11, 2913.21, 2913.31, 2913.32, 2913.34, 2913.40, 2913.401, 2913.42, 2913.421, 2913.43, 2913.45, 2913.46, 2913.47, 2913.48, 2913.49, 2913.51, 2913.61, 2915.05, 2917.21, 2917.31, 2917.32, 2921.13, 2921.41, 2923.31, and 2981.07, division (B) of section 2929.13, and division (A) of section 2929.14 of the Revised Code that are made in this act apply to a person who commits an offense specified or penalized under those sections on or after the effective date of this section and to a person to whom division (B) of section 1.58 of the Revised Code makes the amendments applicable.
{¶11}
{¶12} Turning first to the changes in
{¶13} The present case involves
{¶14} Turning next to
{¶15} However, in one case, as part of an Anders/Toney review, State v. Pete, 7th Dist. No. 12 MA 36, 2013-Ohio-663, ¶19, fn. 1, this court mentioned in a footnote that
We acknowledge that the court in State v. Pete, 7th Dist. No. 12 MA 36, 2013-Ohio-663, 2013 WL 749374, found that the trial court did not have to apply the law in effect at the time of sentencing. In Pete, the court acknowledged that
R.C. 2929.14(C)(4) had been amended and was in effect at the time Pete was sentenced. Nevertheless, it stated:The General Assembly expressly provided in Section 4 of H.B. 86: “The amendments * * * apply to a person who commits an offense specified or penalized under those sections on or after the effective date of this section[.]” Pete committed the offense on August 18, 2011. Thus, the trial court was not required to make the consecutive sentence findings prior to sentencing Pete to consecutive sentences.
In reaching this conclusion, the Seventh District Court of Appeals failed to recognize that the language it quoted from Section 4 of H.B. 86 applied only to “division (A) of section 2929.14 of the Revised Code.” In other words, the felony penalties set forth in
R.C. 2929.14(A) apply to those persons who commit an offense after September 30, 2011—the effective date of the section. Nothing in Section 4 can be understood as indicating that it applies to anything other thanR.C. 2929.14(A) , and more particularly, that the consecutive sentencing requirements ofR.C. 2929.14(C)(4) apply only to those offenders who committed their crimes after the effective date of the statute. Consistent with Jones and Huber, [State v. Jones, 8th Dist. No. 98371, 2013-Ohio-489; State v. Huber, 8th Dist. No. 98206, 2012-Ohio-6139] we find that the consecutive sentencing provisions of H.B. 86 are effective for all offenders sentenced on or after September 30, 2011, regardless of when those offenders committed their crimes.
{¶16} Other districts have also applied the consecutive sentencing provisions in
{¶17} Not only are we persuaded by the analysis of our sister districts, more importantly, we must remain consistent with this court‘s most recent jurisprudence on the subject, i.e., Esmail, Power, and Farnsworth. Accordingly, we hold that the consecutive sentencing provisions of H.B. 86 apply to criminal defendants who were sentenced on or after September 30, 2011, including those who committed the sentenced offenses before that date. Moreover, we expressly overrule that portion of our decision in Pete which holds otherwise.
{¶18} Accordingly, for all of the above reasons, the community control provisions in
{¶19} Stout raises three assignments of error in this appeal as follows:
{¶20} “The record does not support the trial court‘s findings under O.R.C. 2929.13(B) and the sentence is clearly and conveincingly (sic) contrary to law.”
{¶21} “The finding that the appellant caused ‘physical harm’ to any individual while committing the offense was an abuse of discretion.”
{¶22} “The decision to impose consecutive sentences is contrary to law.”
{¶23} For clarity of analysis, we will reframe Stout‘s assignments of error. First, Stout asserts that the trial court erred by finding that he caused physical harm by mere possession of the images; and in the absence of the physical harm element the trial court was mandated by
Failure to Impose Community Control
{¶24} Stout contends that community control was mandatory under the circumstances of this case pursuant to
(a) Except as provided in division (B)(1)(b) of this section, if an offender is convicted of or pleads guilty to a felony of the fourth or fifth degree that is not an offense of violence, the court shall sentence the offender to a community control sanction of at least one year‘s duration if all of the following apply:
(i) The offender previously has not been convicted of or pleaded guilty to a felony offense or to an offense of violence that is a misdemeanor and that the offender committed within two years prior to the offense for which sentence is being imposed.
(ii) The most serious charge against the offender at the time of
sentencing is a felony of the fourth or fifth degree. (iii) If the court made a request of the department of rehabilitation and correction pursuant to division (B)(1)(c) of this section, the department, within the forty-five-day period specified in that division, provided the court with the names of, contact information for, and program details of one or more community control sanctions of at least one year‘s duration that are available for persons sentenced by the court.
(b) The court has discretion to impose a prison term upon an offender who is convicted of or pleads guilty to a felony of the fourth or fifth degree that is not an offense of violence if any of the following apply:
(i) The offender committed the offense while having a firearm on or about the offender‘s person or under the offender‘s control.
(ii) The offender caused physical harm to another person while committing the offense.
(iii) The offender violated a term of the conditions of bond as set by the court.
(iv) The court made a request of the department of rehabilitation and correction pursuant to division (B)(1)(c) of this section, and the department, within the forty-five-day period specified in that division, did not provide the court with the name of, contact information for, and program details of any community control sanction of at least one year‘s duration that is available for persons sentenced by the court.
{¶25} There is no dispute that Stout has not previously been convicted of or pleaded guilty to a felony offense or to an offense of violence that is a misdemeanor committed within two years prior to the offenses at issue here. Nor can there be any dispute that the most serious charge against Stout at the time of sentencing was a fourth or fifth degree felony. See
Physical Harm
{¶26} Thus at issue here is the application of subsection (b)(ii), whether the “offender, [Stout], caused physical harm to another person while committing the offense.”
{¶27} As an initial matter, as both parties note,
{¶28} However, this court can only apply the law as written at the time of Stout‘s sentencing, since the statutory language employed by the General Assembly is clear and unambiguous. See Silver Lake v. Metro Regional Transit Auth., 111 Ohio St.3d 324, 2006-Ohio-5790, 856 N.E.2d 236, ¶17, quoting Symmes Twp. Bd. of Trustees v. Smyth, 87 Ohio St.3d 549, 553, 721 N.E.2d 1057 (2000): “When the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no need for this court to apply the rules of statutory interpretation.”
{¶29} On appeal, as at sentencing, the State asserted that there is physical harm
{¶30} In concluding that there is physical harm to the victim whenever child pornography is possessed and viewed, the Twelfth District stated that ” ‘[b]oth the Supreme Courts of the United States and Ohio have unequivocally found that children are seriously harmed by the mere possession of pornography in which they are depicted.’ ” Id. at ¶47, quoting State v. Maynard, 132 Ohio App.3d 820, 827, 726 N.E.2d 574 (9th Dist.1999), citing State v. Meadows, 28 Ohio St.3d 43, 503 N.E.2d 697 (1986), citing New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). Thus, the Twelfth District agreed that the defendant “caused serious harm to several persons by possessing graphic images of those minors depicted in sexual activity.” McCartney at ¶47.
{¶31} However, the problem with McCartney is that the cases upon which it relies do not directly stand for the proposition that possession of child pornography causes physical harm to the victims as contemplated and defined by the Ohio criminal code, which distinguishes between physical and psychological harm. Maynard held that children depicted in pornographic images were “victimized” by the possession under the meaning of former
{¶32} Significantly, both Meadows and Ferber involve First Amendment challenges to criminal statutes involving child pornography. Ferber, 458 U.S. 747; Meadows, 28 Ohio St.3d 43. These cases discuss at length government policy rationales in support of the constitutionality of child pornography statutes. Ferber discussed the
{¶33} Unquestionably, possession of child pornography is not a victimless crime and causes psychological harm to the victims. See Meadows, Maynard, Ferber. However, to say it causes physical harm to the victims as defined by the Revised Code is more tenuous. While Ferber and Meadows articulate a sound policy rationale in support of the constitutionality of child pornography laws, those decisions do not necessarily support the conclusion that a child who is depicted in pornography suffers physical harm, as defined by Ohio law, specifically as used in
{¶34} Ohio‘s Criminal Code, set forth in Title 29 of the Ohio Revised Code defines physical harm as follows: “As used in the Revised Code * * * any injury, illness, or other physiological impairment, regardless of its gravity or duration.” (Emphasis added.)
“Physical harm” means “any injury, illness, or other physiological impairment, regardless of its gravity or duration.”
R.C. 2901.01(A)(3) . In adopting this definition, the Legislative Service Commission commented that “while physical illness is included in the concept of physical harm to persons, mental illness is not. Serious mental conditions are reserved forthe definition of serious physical harm to persons, but the milder mental disturbances cannot be pinpointed with sufficient precision for use in the criminal law.” A psychological effect on the victim does not fall within the statutory definition of “physical harm.” State v. Dawson (1984), 16 Ohio App.3d 443, 16 OBR 515, 476 N.E.2d 382; State v. Collier, Montgomery App. No. 20131, 2005-Ohio-119, 2005 WL 78548, ¶ 61. Therefore, the “less serious” factor that “the offender did not cause or expect to cause physical harm to any person or property” is present.
State v. Nichols, 195 Ohio App.3d 323, 2011-Ohio-4671, 959 N.E.2d 1082, ¶28 (2d Dist.).
{¶35} Moreover Ohio‘s sentencing statutes are replete with distinctions between physical and psychological harm. Just one example is found in one of the seriousness factors courts consider when sentencing a felon: “The victim of the offense suffered serious physical, psychological, or economic harm as a result of the offense.”
{¶36} Here, Stout contested the physical harm finding at sentencing and there is nothing in the record demonstrating that the children portrayed in the images suffered physical harm. In other words, there was nothing to prove the victims suffered “any injury, illness, or other physiological impairment[,]” by Stout‘s mere possession of the images.
{¶37} The trial court and this court are bound to apply the law in effect at the time of Stout‘s sentencing. Because the General Assembly limited subpart (b)(ii) to considering whether the defendant caused physical harm, neither the trial court nor this court can consider psychological harm. These two terms have separate and distinct statutory definitions, and we are bound to give unambiguous statutory language the plain meaning assigned to it by the General Assembly. In order for Stout to receive a sentence other than community control, physical harm to the victim had to be present. Solely possessing and viewing child pornography does not per se cause physical harm to the victim, although it unquestionably causes the victim emotional, mental and psychological
{¶38} While this court may disagree with the language of
{¶39} The trial court‘s physical harm finding was erroneous; thus, it was also erroneous for the trial court to impose a prison sentence. The version of
{¶40} In sum,
Donofrio, J., concurs.
Vukovich, J., concurs.