2004 Ohio 3612 | Ohio Ct. App. | 2004
Lead Opinion
{¶ 3} The victim was abused on many different occasions. For example, on one occasion the victim recalled that appellant would hold her down by the shoulders while Maryanne Swank would hold her feet. The victim further indicated that appellant would be on top of her and would put his private part inside her private part. When asked if anything came out of his private part, she responded, "white stuff came out and he showed me when he wiped it on the bed."2 The victim also indicated that appellant would touch her buttocks with his hands and kiss her cheek and mouth with his lips. She explained that, "he tried to use his tongue, but I held my mouth shut."3 The victim was also asked if she was ever shown movies at the appellant's home. She explained that while they were touching her, the television was usually turned on to channel 22 and that there were movies with nude adults.4
{¶ 4} Social worker Altiere introduced an anatomically correct picture of a child about the victim's age and asked her to circle where appellant touched her. The victim circled the hair, shoulders, chest, stomach, vaginal area and buttocks. The victim was then shown an anatomically correct picture of an adult male and was asked to circle what appellant touched her with. The victim circled the mouth, stomach, hands, and penis. When shown an anatomically correct picture of an adult female, the victim was asked to circle what Maryanne Swank touched her with. The victim circled the mouth, breasts, and vagina.5
{¶ 5} Appellant threatened the victim and told her that if she informed anyone about the abuse, he would bury her in a hole in the backyard behind the garage.6 The victim recalled another time when the appellant threatened her. She explained that she was taking a bath at the Swank's home when appellant came into the bathroom and "put my head in the water" and stated "I'm not playing with you — you better not say anything."7 The victim stated, "I couldn't breathe much." The victim estimated that she was five or six years old when this particular incident occurred.
{¶ 6} Appellant was indicted on March 4, 2003 by the Cuyahoga County Grand Jury with forty-two counts of rape in violation of
{¶ 7} On August 27, 2003, the court imposed sentences of six years on each of counts one and two, and two years on each of counts three through six. The sentences on counts one, two and three were ordered to run consecutively to one another, while the sentences on the remaining counts ran concurrently to one another as well as to the sentences on the other counts. Therefore, the complete sentence imposed by the lower court totaled fourteen years.
{¶ 9} R.C.
"(4) If multiple prison terms are imposed on an offender forconvictions of multiple offenses, the court may require theoffender to serve the prison terms consecutively if the courtfinds that the consecutive service is necessary to protect thepublic from future crime or to punish the offender and thatconsecutive sentences are not disproportionate to the seriousnessof the offender's conduct and to the danger the offender poses tothe public, and if the court also finds any of the following:
"(a) The offender committed one or more of the multipleoffenses while the offender was awaiting trial or sentencing,was under a sanction imposed pursuant to section
{¶ 10} R.C.
{¶ 11} Thus, R.C.
{¶ 12} The record clearly demonstrates that the trial court met the requirements above before ruling that appellant would serve his sentences consecutively. The trial court did not invoke the exact words of the statute; however, that is not required by R.C.
{¶ 13} The exchange between the court and the parties during the August 27, 2003 sentencing hearing clearly demonstrates the trial court's compliance with the R.C.
"The Court: Okay. Well I know that you have no prior sentence— or prior felony convictions, and that there is a presumptionthat you should receive the minimum, which is a mandatory threeyears. But given the nature of this long history, and pattern ofabuse, that would obviously demean the seriousness of theoffense, and certainly would not protect other young childrenfrom your future behavior. "You used your relationship, you offended this young victim,who was a neighbor. You invited her repetitively to spend theweekend at your house. You did assume the roll of a friend,maybe, or a relative of some extent, or you attempted to. "This victim was five years old at the time that this abusestarted. It happened, according to her, almost every weekend thatshe spent at your house, over a course of approximately sixyears. You physically threatened her with death if she informedanybody what was going on. You coerced your wife/co-defendant tohelp physically restrain the victim at certain times during theseactions. You've caused serious physical harm and emotional andmental harm to this victim, who now finds herself in foster care.You committed some acts of sexual abuse against her sister. Andas you sit here today, despite pleading guilty, you've attemptedto minimize and/or deny your involvement in these offenses. "Based upon those reasons, the court is going to imposeconsecutive sentences on the various counts. You pled guilty tocounts one though six. Those are all rapes, first degreemisdemeanors — I mean first degree felonies, excuseme."8
{¶ 14} In the case sub judice, the trial court specifically determined that consecutive terms were necessary to protect the public in light of the nature of this long history and pattern of abuse. The consecutive sentences were not disproportionate and there were severe multiple offenses committed. Accordingly, based on the evidence, the trial court made the requisite findings and stated adequate reasons to support those findings as required by law. In addition, the court provided additional rationale regarding appellant's deplorable behavior and lack of remorse, further supporting the trial court's sentence.
{¶ 15} Appellant's first assignment of error is overruled.
{¶ 17} We find that the trial court did not improperly consider uncharged acts as an aggravating factor at sentencing or in its sexual predator determination. R.C.
{¶ 18} In the case sub judice, the trial court mentioned that appellant made sexual advances toward the victim's sister. However, if this was indeed error, it would only be harmless error. This is because the court relied on other additional factors set forth in the record before determining the appropriate classification and sentence for appellant.
{¶ 19} We find that the trial court acted properly. Accordingly, appellant's second and sixth assignments of error are overruled.
{¶ 21} We find that the trial court adequately ensured that its total sentence was proper. R.C.
"(A) A court that sentences an offender for a felony shall beguided by the overriding purposes of felony sentencing. Theoverriding purposes of felony sentencing are to protect thepublic from future crime by the offender and others and to punishthe offender. To achieve those purposes, the sentencing courtshall consider the need for incapacitating the offender,deterring the offender and others from future crime,rehabilitating the offender, and making restitution to the victimof the offense, the public, or both. "(B) A sentence imposed for a felony shall be reasonablycalculated to achieve the two overriding purposes of felonysentencing set forth in division (A) of this section,commensurate with and not demeaning to the seriousness of theoffender's conduct and its impact upon the victim, and consistentwith sentences imposed for similar crimes committed by similaroffenders. "(C) A court that imposes a sentence upon an offender for afelony shall not base the sentence upon the race, ethnicbackground, gender, or religion of the offender."
{¶ 22} R.C.
{¶ 23} It is clear from the evidence and record previously discussed that the lower court considered the appropriate circumstances and utilized the proper factors with regard to the statutory requirements when sentencing appellant. Furthermore, appellant failed to demonstrate that his sentence was either disproportionate or inconsistent to sentences given in similar cases. There is nothing in the record which indicates that the trial court failed to consider the purposes and principles of R.C.
{¶ 24} We, therefore, overrule appellant's third assignment of error.
{¶ 26} We find that the evidence is sufficient as a matter of law to prove, by clear and convincing evidence, that appellant is likely to engage in the future in one or more sexually oriented offenses.
{¶ 27} R.C.
"(3) In making a determination under divisions (B)(1) and (4)of this section as to whether an offender or delinquent child isa sexual predator, the judge shall consider all relevantfactors, including, but not limited to, all of the following: "(a) The offender's or delinquent child's age; "(b) The offender's or delinquent child's prior criminal ordelinquency record regarding all offenses, including, but notlimited to, all sexual offenses; "(c) The age of the victim of the sexually oriented offensefor which sentence is to be imposed or the order of dispositionis to be made; "(d) Whether the sexually oriented offense for which sentenceis to be imposed or the order of disposition is to be madeinvolved multiple victims; "(e) Whether the offender or delinquent child used drugs oralcohol to impair the victim of the sexually oriented offense orto prevent the victim from resisting; "(f) If the offender or delinquent child previously has beenconvicted of or pleaded guilty to, or been adjudicated adelinquent child for committing an act that if committed by anadult would be, a criminal offense, whether the offender ordelinquent child completed any sentence or dispositional orderimposed for the prior offense or act and, if the prior offense oract was a sex offense or a sexually oriented offense, whether theoffender or delinquent child participated in available programsfor sexual offenders; "(g) Any mental illness or mental disability of the offenderor delinquent child; "(h) The nature of the offender's or delinquent child'ssexual conduct, sexual contact, or interaction in a sexualcontext with the victim of the sexually oriented offense andwhether the sexual conduct, sexual contact, or interaction in asexual context was part of a demonstrated pattern of abuse; "(i) Whether the offender or delinquent child, during thecommission of the sexually oriented offense for which sentence isto be imposed or the order of disposition is to be made,displayed cruelty or made one or more threats of cruelty; "(j) Any additional behavioral characteristics thatcontribute to the offender's or delinquent child's conduct." (Emphasis added.)
{¶ 28} The record in the case sub judice demonstrates that the trial court complied with the statutory mandates and properly considered the appropriate factors set forth in R.C.
{¶ 29} Therefore, we find that the evidence in the case sub judice constitutes clear and convincing evidence that appellant committed a sexually oriented offense and is likely to reoffend.
{¶ 30} Appellant's fifth assignment of error is overruled.
{¶ 32} R.C.
{¶ 33} In State v. Cook (1998),
{¶ 34} Appellant's fourth assignment of error is found to be without merit.
{¶ 35} Accordingly, appellant's six assignments of error are overruled.
{¶ 36} The lower court's decision is hereby affirmed.
Michael J. Corrigan, A.J., concurs; Patricia Ann Blackmon, J.,concurs in judgment only (separate concurring opinion attached.)
Concurrence Opinion
{¶ 37} I concur in judgment only and write separately because I do not believe that we should ignore the Ohio Supreme Court's holding in State v. Comer.10 State v. Comer holds "a trial court must clearly align each rationale with the specific finding to support its decision to impose consecutive sentences."11 According to this court's most recent pronouncement on the subject in State v. Farraj,12 the failure to do so constitutes reversible error.
{¶ 38} In the past I interpreted Comer less literally in my opinion in State v. Cottrell.13 State v. Cottrell continues to have some support in this district.14 Nevertheless, the majority of judges in this district hold the trial court must specifically align each rationale with the specific finding.15
{¶ 39} The law in this district, as well as other districts, holds the trial court need not use the exact words of the sentencing statute.16 Comer did not alter this holding; consequently, the trial court may make findings without using the exact words of the statute and as such, satisfy the dictates of the consecutive sentencing statute.
{¶ 40} Here, the defense argued the trial court did not make the second finding relative to disproportionality; that is, the additional consecutive sentence was not disproportionate to the danger that the offender posed. In determining whether the consecutive sentence is proportional to the danger posed, the trial court must find not just the likelihood of future crimes, but must find the nature of the harm the offender might commit in the future. Here, the trial court found Swank threatened the child with death, coerced his wife into participating in the violence against this neighbor-girl, and sexually abused her sister; this, he did over a six-year period. To me, these findings meet the standard of finding the nature of harm he might commit in the future and sets forth the reason for the additional two years.
{¶ 41} Accordingly, I believe the finding and the reasons are sufficiently aligned as required by State v. Comer. I reach this conclusion because the historical case law, from this and other districts, alleviates the court from having to use the exact language of the statute. Consequently, in this case the finding and the reason are the same; thus alignment is met because of the commonality. I realize the finding and the reason might not always be the same in future cases; however, in this case, they are. Consequently, I concur in judgment only.
