[Cite as State v. Weaver, 2017-Ohio-4374.]


                                       COURT OF APPEALS
                                   MUSKINGUM COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                        Hon. John W. Wise, J.
                                                  Hon. Craig R. Baldwin, J.
-vs-
                                                  Case No. CT2016-0033
EMILE L. WEAVER

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                      Criminal Appeal from the Court of Common
                                              Pleas, Case No. CR2015-0216


JUDGMENT:                                     Affirmed



DATE OF JUDGMENT ENTRY:                        June 16, 2017



APPEARANCES:

For Plaintiff-Appellee                        For Defendant-Appellant

D. MICHAEL HADDOX                             NIKKI TRAUTMAN BASZYNSKI
PROSECUTING ATTORNEY                          ASSISTANT PUBLIC DEFENDER
GERALD V. ANDERSON II                         250 East Broad Street
ASSISTANT PROSECUTOR                          Suite 1400
27 North Fifth Street, P.O. Box 189           Columbus, Ohio 43215
Zanesville, Ohio 43702
Muskingum County, Case No. CT2016-0033                                                     2

Wise, John, J.

      {¶1}   Appellant Emile Weaver appeals her conviction, in the Court of Common

Pleas, Muskingum County, for aggravated murder and three additional felony counts.

Appellee is the State of Ohio. The relevant facts leading to this appeal are as follows.

      {¶2}   In the spring of 2015, Appellant Weaver was a student at Muskingum

University, residing in a campus sorority house on Lakeside Drive in New Concord. She

was pregnant, but she had in various ways denied or covered up this fact.

      {¶3}   On April 22, 2015, appellant went into a bathroom in the sorority house and,

without assistance, delivered a daughter, Addison Grace Weaver. The baby was

delivered into the toilet; appellant, while bleeding profusely, delivered the placenta, cut

the umbilical cord, and pulled the baby out of the toilet. She then placed the placenta

and the baby in a small pail that was in the bathroom. She thereupon left the bathroom

and rested on a couch.

      {¶4}   At some point, appellant returned to the bathroom with a garbage bag and

placed the baby, the placenta, paper towels, and some of her clothing inside the bag.

She then carried the bag to the side door of the sorority house and placed it outside, next

to a garbage can. After this, she went back inside the house to lie down.

      {¶5}   Later that day, two sorority members found the bag lying next to the house.

They tore a hole in the bag and thereupon contacted university officials.

      {¶6}   After first responders came to the scene, paramedics asked appellant if she

was the mother of the baby found outside.          Appellant answered in the negative.

Appellant was also interviewed that night by Detective Todd Mahle of the Muskingum

County Sheriff’s Office. The interview took place from 10:26 p.m. until 3:46 a.m. in a
Muskingum County, Case No. CT2016-0033                                                   3


break room at the Muskingum University Police building. Appellant eventually detailed

to the detective the events that had occurred that morning, although she presented

different versions as to whether Addison was born alive and the type of movements or

noises she made during the whole incident. Detective Mahle did not utilize any recording

equipment during the interview. At Mahle’s request, appellant returned the next day at

about noon to provide a recorded statement.

      {¶7}   An autopsy was subsequently performed on Addison. The results showed

that she had been born alive, but had died of asphyxiation. Tr. at 347, 350, 382.

      {¶8}   On July 22, 2016, appellant was indicted by the Muskingum County Grand

Jury on one count of aggravated murder, one count of gross abuse of a corpse, and two

counts of tampering with evidence.

      {¶9}   The case proceeded to a jury trial commencing on May 10, 2016. The

State’s theory was that Addison died from lack of oxygen after appellant placed her inside

the garbage bag. Tr. at 871. Appellant’s trial counsel moved for an instruction on reckless

homicide, based on the defense theory that the baby could have died from positional

asphyxiation from the way that appellant placed the baby in the pail. The request for the

instruction was granted. Tr. at 812, 815, 881. However, Dr. Jeffrey Lee, the deputy

coroner who conducted the autopsy, had expressed doubt in his testimony that positional

asphyxiation was the cause of death or asphyxiation. See Tr. at 408.

      {¶10} Appellant was ultimately found guilty on all counts. At sentencing, the trial

court merged the two tampering-with-evidence counts and imposed a one-year prison

sentence on said offense. The trial court further imposed a three-year prison sentence

for gross abuse of a corpse. It ordered these sentences to run consecutively to each
Muskingum County, Case No. CT2016-0033                                                  4


other and to the sentence for aggravated murder. Finally, the trial court imposed life in

prison without parole for the offense of aggravated murder. In support of its sentencing

decision, the trial court concluded that appellant was not remorseful, that she had

committed "the worst form of the offense," and that she had caused emotional hardship

to her sorority sisters. Sentencing Tr. at 10-16.

      {¶11} On July 20, 2016, appellant filed a notice of appeal. She herein raises the

following four Assignments of Error:

      {¶12} “I. THE TRIAL COURT ERRED WHEN IT IMPOSED A LIFE-WITHOUT-

PAROLE SENTENCE UPON EMILE WEAVER.

      {¶13} “II. EMILE WEAVER'S SENTENCE IS DISPROPORTIONATE TO HER

CONDUCT.

      {¶14} “III. THE TRIAL COURT ERRED WHEN IT IMPOSED CONSECUTIVE

SENTENCES UPON EMILE WEAVER.

      {¶15} “IV.    EMILE WEAVER'S CONVICTION FOR GROSS ABUSE OF A

CORPSE WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE.”

                                             I.

      {¶16} In her First Assignment of Error, appellant contends the trial court erred in

imposing a sentence of life without parole for her offense of aggravated murder.

      {¶17} As an initial matter, it is incumbent that we consider our statutory authority

to consider the present assigned error. We first note that R.C. 2953.08 governs appellate

review of felony sentencing. R.C. 2953.08(A) states that “[i]n addition to any other right

to appeal and except as provided in division (D) of this section, a defendant who is

convicted of or pleads guilty to a felony may appeal as a matter of right the sentence
Muskingum County, Case No. CT2016-0033                                                         5


    imposed upon the defendant on [one of the grounds listed in subsections (A)(1) through

    (A)(5)]”. (Emphasis added). In turn, R.C. 2953.08(D)(3) provides: “A sentence imposed

    for aggravated murder or murder pursuant to sections 2929.02 to 2929.06 of the Revised

    Code is not subject to review under this section.”

          {¶18} The Eighth District Court of Appeals has cogently stated: “The General

    Assembly's practice of treating sentencing for aggravated murder and murder

    convictions differently from other felonies is longstanding.” State v. Hollingsworth, 143

    Ohio App.3d 562, 569, 758 N.E.2d 713 (8th Dist. 2001). Furthermore, “[t]here is no

    constitutional right to appellate review of a criminal sentence, so ‘the only right to appeal

    is the one provided by statute.’ ” State v. Campbell, 8th Dist. Cuyahoga No. 103982,

    2016-Ohio-7613, ¶ 14, citing State v. Akins, 8th Dist. Cuyahoga No. 99478, 2013–Ohio–

    5023, ¶ 11.

          {¶19} The Ohio Supreme Court has concluded that the pertinent language of R.C.

    2953.08(D), supra, is unambiguous.1 See State v. Porterfield, 106 Ohio St.3d 5, 829

    N.E.2d 690, 2005-Ohio-3095, ¶ 17. Thus, “[the language] ‘[a] sentence imposed for

    aggravated murder or murder pursuant to section 2929.02 to 2929.06 of the Revised

    Code is not subject to review under this section’ clearly means what it says: such a

    sentence cannot be reviewed.” Id. Likewise, in State v. Patterson, 5th Dist. Stark No.

    2012CA00098, 2013-Ohio-1647, an appeal of an aggravated murder conviction, we

    reviewed the aforesaid statute and succinctly held as follows: “Pursuant to R.C.




1 At the time Porterfield was decided, R.C. 2953.08(D) had not yet been subdivided into
(D)(1), (D)(2), and (D)(3).
Muskingum County, Case No. CT2016-0033                                                  6


2953.08(D)(3) and case law interpreting this statute, this Court is without statutory

authority to review appellant's sentence on an evidentiary basis.” Id. at ¶ 70.

      {¶20} In the case sub judice, appellant challenges the trial court’s determinations

in its sentencing decision that life without parole comported with the overriding purposes

of felony sentencing, that appellant had committed the worst form of the offense, that

appellant was not remorseful, and that the appellant’s crime impacted witnesses and

others. We note Article IV, Section 3(B)(2) of the Ohio Constitution provides that courts

of appeals have “such jurisdiction as may be provided by law to review and affirm,

modify, or reverse judgments or final orders of the courts of record inferior to the court

of appeals within the district.” (Emphasis added). Pursuant to the clear mandate of the

General Assembly in R.C. 2953.08(D)(3), as well as the case law precedent set forth in

Porterfield and Patterson, supra, we find appellant’s above arguments are unreviewable

in the present appeal. We reach a similar conclusion in regard to appellant’s additional

claim, raised in her appellate reply brief, that R.C. 2953.08(D)(3) violates the Equal

Protection Clause.

      {¶21} Appellant's First Assignment of Error is therefore denied on the basis of lack

of appellate jurisdiction.

                                            II.

      {¶22} In her Second Assignment of Error, appellant argues the trial court’s

sentence of life without parole for the offense of aggravated murder is disproportional to

her conduct and constitutes reversible error.

      {¶23} R.C. 2929.11(B) states:       “A sentence imposed for a felony shall be

reasonably calculated to achieve the two overriding purposes of felony sentencing set
Muskingum County, Case No. CT2016-0033                                                 7


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.”

      {¶24} However, a criminal defendant’s challenge to murder and aggravated

murder sentences based upon proportionality or consistency analysis is not subject to

appellate review pursuant to R.C. 2953.08(D)(3). See State v. White, 8th Dist. Cuyahoga

No. 101576, 2015–Ohio–2387, ¶ 67– ¶ 68. Accordingly, we hold appellant’s

disproportionality argument is not cognizable in the present appeal

      {¶25} Appellant's Second Assignment of Error is denied on the basis of lack of

appellate jurisdiction.

                                            III.

      {¶26} In her Third Assignment of Error, appellant contends the trial court erred in

imposing consecutive sentences regarding her four felony offenses, subsequent to

merger of two of the counts. We disagree.

      {¶27} Under R.C. 2953.08(G)(2)(a), we are mandated in this instance to consider

on appeal whether there is clear and convincing evidence that the record in the case sub

judice does not support the sentencing court's findings under R.C. 2929.14(C)(4) to

impose consecutive sentences. See State v. Deeb, 6th Dist. Erie No. E–14–117, 2015–

Ohio–2442, ¶ 27. Our current methodology for consecutive sentence review stems from

2011 Am.Sub.H.B. No. 86, which revived the language provided in former R.C.

2929.14(E) and moved it to R.C. 2929.14(C)(4). The General Assembly has thus

expressed its intent to revive the statutory fact-finding provisions pertaining to the
Muskingum County, Case No. CT2016-0033                                                8

imposition of consecutive sentences that were effective in the pre-Foster era. See State

v. Wells, 8th Dist. Cuyahoga No. 98428, 2013–Ohio–1179, ¶ 11.

      {¶28} We thus direct our attention to R.C. 2929.14(C)(4), which provides as

follows:

             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 also finds any of the following:

             (a) The offender committed one or more of the multiple offenses

      while the offender was awaiting trial or sentencing, was under a sanction

      imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised

      Code, or was under post-release control for a prior offense.

             (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.

             (c) The offender's history of criminal conduct demonstrates that

      consecutive sentences are necessary to protect the public from future crime

      by the offender.
Muskingum County, Case No. CT2016-0033                                                      9


      {¶29} (Emphases added).

      {¶30} In sum, “R.C. 2929.14(C)(4) provides that a trial court may require the

offender to serve multiple 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

also finds any one of three facts specified in subdivisions (a), (b), and (c).” State v. Leet,

2nd Dist. Montgomery No. 25966, 2015–Ohio–1668, ¶ 15 (internal quotations and

brackets omitted).

      {¶31} A presumption of regularity attaches to all trial court proceedings. See, e.g.,

Black v. Chiropractic Assocs. of Zanesville, L.L.C., 5th Dist. Muskingum No. CT2013–

0012, 2014–Ohio–192, ¶ 20, citing Chari v. Vore (2001), 91 Ohio St.3d 323, 325, 744

N.E.2d 763. In addition, we have held on numerous occasions that although H.B. 86

requires the trial court to make findings before imposing a consecutive sentence, it does

not require the trial court to give its reasons for imposing the sentence. See, e.g., State

v. Collins, 5th Dist. Knox No. 12 CA 20, 2013–Ohio–2419, ¶ 22, citing State v. Bentley,

3rd Dist. Marion No. 9–12–31, 2013–Ohio–852, ¶ 12. Moreover, the Ohio Supreme Court

has clearly held: “In order to impose consecutive terms of imprisonment, a trial court is

required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing

and incorporate its findings into its sentencing entry, but it has no obligation to state

reasons to support its findings.” State v. Bonnell, 140 Ohio St.3d 209, 16 N.E.3d 659,

2014–Ohio–3177, syllabus. However, the record must demonstrate that consecutive
Muskingum County, Case No. CT2016-0033                                                     10

sentences are appropriate and clearly supported. See State v. Ducker, 5th Dist. Stark

No. 2012CA00192, 2013–Ohio–3657, ¶ 16.

      {¶32} The trial court in the case sub judice found under R.C. 2929.14(C)(4) that

consecutive sentences were necessary to protect the public and to punish appellant.

Sentencing Tr. at 17. It further found that said consecutive sentences were not

disproportionate to the seriousness of the conduct and the danger appellant poses to the

public. Id. Lastly, it found that "two or more of the multiple offenses * * * were so great

and unusual that no single prison term for any of those offenses committed as part of

any of the course (sic) of conduct adequately reflects the seriousness" of appellant’s

conduct. Id. See, also, Sentencing Entry at 2.

      {¶33} Appellant’s essential argument in regard to her challenge to consecutive

sentences is that her actions in killing her own newborn child should not be equated to a

danger to the public, in part relying on scientific articles (not presented to the trial court

during sentencing) that have apparently concluded recidivism rates are low for persons

who have committed what has been termed neonaticide. However, we find appellant

ignores the additional dangers to the public she manifested via her offenses, not the

least of which include her blatant disregard for law enforcement and the justice system

via her attempts to dispose of the baby and other evidence of the murder, and the wide

range of psychological repercussions her behaviors likely have had on the campus

community and her sorority sisters, particularly those who made the grisly discovery of

the garbage bag. See Sentencing Tr. at 14-15, 17. Upon review, we hold the trial court

adequately reviewed the matter of consecutive sentences, and we find no clear and
Muskingum County, Case No. CT2016-0033                                                    11


convincing evidence that the record does not support the trial court's findings under R.C.

2929.14(C)(4) for purposes of imposing consecutive sentences. Deeb, supra.

      {¶34} Appellant's Third Assignment of Error is therefore overruled.

                                            IV.

      {¶35} In her Fourth Assignment of Error, appellant maintains her conviction for

gross abuse of a corpse was not supported by sufficient evidence. We disagree.

      {¶36} In reviewing a claim of insufficient evidence, “[t]he relevant inquiry is

whether, after viewing the evidence in a light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime proven beyond

a reasonable doubt.” State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492,

paragraph two of the syllabus. It is well-established that the State bears the burden of

establishing each and every element of a charged crime and must do so with proof

beyond a reasonable doubt. See In re L.R., 8th Dist. Cuyahoga No. 93356, 2010-Ohio-

15, ¶ 11.

      {¶37} Appellant was charged under R.C. 2927.01(B), which states that “[n]o

person, except as authorized by law, shall treat a human corpse in a way that would

outrage reasonable community sensibilities."

      {¶38} Appellant correctly notes that the State’s theory of the case was that

appellant caused the death of newborn Addison by placing her inside a garbage bag,

ultimately resulting in the asphyxiation of the child. Dr. Lee, the deputy coroner, testified

that the baby was born alive and that she died from lack of oxygen. Trial Tr. at 347, 382.

The defense inquired about “positional asphyxiation,” asking Dr. Lee whether the baby

might have died from being placed in a position that did not allow her to breathe. Tr. at
Muskingum County, Case No. CT2016-0033                                                12


403. The State followed up on this theory with Dr. Lee on re-direct examination, at which

time he concluded that positional asphyxiation was not the cause. Tr. at 408. Thus,

although the State does not presently concede the point, under the State's trial theory,

Addison likely died after being placed inside the garbage bag. Appellant thus urges that

the State failed to prove that she illegally handled or treated a corpse.

      {¶39} While neither side has presented any case law authority on point, we find

no merit in appellant’s contention. Under the unusual and tragic circumstances

presented, the jurors could properly find that appellant was responsible, at minimum, for

putting Addison into an environment in which, if still alive, she was almost certain to

quickly suffocate. We hold reasonable jurors could thus conclude beyond a reasonable

doubt that appellant foreseeably created the circumstances under which the baby’s

subsequently deceased body was inevitably subjected to treatment considered

outrageous to reasonable community sensibilities. We therefore hold that the State

proved the elements of gross abuse of a corpse beyond a reasonable doubt.

      {¶40} Accordingly, appellant's Fourth Assignment of Error is overruled.

      {¶41} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Muskingum County, Ohio, is hereby affirmed.

By: Wise, John, J.
Gwin, P. J., and
Baldwin, J., concur.

JWW/d 0516
Muskingum County, Case No. CT2016-0033   13
