[Cite as State v. Ahlers, 2014-Ohio-3991.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                             BUTLER COUNTY




STATE OF OHIO,                                     :
                                                         CASE NO. CA2013-07-134
        Plaintiff-Appellee,                        :
                                                                OPINION
                                                   :             9/15/2014
    - vs -
                                                   :

STEPHEN F. AHLERS,                                 :

        Defendant-Appellant.                       :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2013-05-0753



Michael T. Gmoser, Butler County Prosecuting Attorney, Michael A. Oster, Jr., Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

J. Gregory Howard, 110 Main Street, Hamilton, Ohio 45013, for defendant-appellant



        S. POWELL, J.

        {¶ 1} Defendant-appellant, Stephen F. Ahlers, appeals from his conviction and the

mandatory prison sentence he received in the Butler County Court of Common Pleas

following his guilty plea to two counts of gross sexual imposition. For the reasons outlined

below, we affirm.

        {¶ 2} On May 15, 2013, Ahlers pled guilty to a bill of information that charged him

with two counts of gross sexual imposition in violation of R.C. 2907.05(A)(4), both third-
                                                                                     Butler CA2013-07-134

degree felonies. The charges stemmed from Ahlers' inappropriate sexual contact with two

girls ages eleven and nine, respectively. It is undisputed Ahlers confessed to the crime when

interviewed by police, thereby establishing corroborating evidence of his guilt.1 It is also

undisputed that at the time he entered his plea, the trial court informed Ahlers he would be

subject to a mandatory prison sentence pursuant to R.C. 2907.05(C)(2)(a), a statute that

requires the trial court to impose a mandatory prison sentence on an offender convicted of

gross sexual imposition against a victim less than 13 years old when "[e]vidence other than

the testimony of the victim was admitted in the case corroborating the violation." Sentencing

was then scheduled for July 1, 2013.

        {¶ 3} On June 4, 2013, Ahlers filed a motion with the trial court arguing R.C.

2907.05(C)(2)(a) was "unconstitutional under the current case law from the United States

Supreme Court." In support of this claim, Ahlers cited to the United States Supreme Court's

decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), and argued "the

corroboration factor" found in R.C. 2907.05(C)(2)(a) "bears no rational relationship to making

the crime more serious and, therefore, is not a Constitutional sentencing factor authorizing

the Court to impose a more severe sentence."

        {¶ 4} On July 1, 2013, after hearing arguments regarding Ahlers' motion, the trial

court denied Ahlers' motion finding R.C. 2907.05(C)(2)(a) was constitutional. The trial court

then sentenced Ahlers to a mandatory aggregate five-year prison term. The trial court also

classified Ahlers as a Tier II sex offender.

        {¶ 5} Ahlers now appeals from his conviction and mandatory prison sentence, raising

two assignments of error for review. For ease of discussion, Ahlers two assignments of error

will be addressed together.


1. A compact disc recording of Ahlers' confession to police was later submitted to the trial court and admitted as
an exhibit during his sentencing hearing.
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      {¶ 6} Assignment of Error No. 1:

      {¶ 7} THE PROVISIONS OF R.C. 2907.05(C)(2)(A) WHICH TREATS CASES WITH

CORROBORAING [sic] EVIDENCE DIFFERENTLY FROM THOSE WHERE THERE ARE

NONE HAS NO RATIONAL BASIS AND THEREFORE THE STATUTE VIOLATES DUE

PROCESS PROTECTIONS OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION AND SECTION 16, ARTICLE I OF THE OHIO

CONSTITUTION.

      {¶ 8} Assignment of Error No. 2:

      {¶ 9} R.C. 2907.05(C)(2)(A) VIOLATES THE RIGHT TO TRIAL BY JURY

GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION AND SECTION 16, ARTICLE I OF THE OHIO CONSTITUTION.

      {¶ 10} Under his two assignments of error, Ahlers argues the trial court erred by

sentencing him to a mandatory aggregate five-year prison term under R.C. 2907.05(C)(2)(a).

We disagree.

      {¶ 11} Generally, the crime of gross sexual imposition against a victim less than 13

years old in violation of R.C. 2907.05(A)(4) carries with it merely a presumption of prison.

See R.C. 2907.05(C)(2). However, as previously stated, pursuant to R.C. 2907.05(C)(2)(a),

a trial court is required to impose a mandatory prison sentence on an offender convicted of

that offense when "[e]vidence other than the testimony of the victim was admitted in the case

corroborating the violation." Thus, based on the plain language of the statute, "the General

Assembly intended to require trial courts to impose a mandatory prison sentence where a

conviction for gross sexual imposition against a victim less than 13 years old was based on

more than a single piece of evidence." State v. North, 10th Dist. Franklin No. 13AP-110,

2013-Ohio-4607, ¶ 14.

      {¶ 12} Initially, Ahlers argues the phrase "admitted in the case" as found in R.C.
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2907.05(C)(2)(a) should be interpreted to preclude the statute's application in this matter as

he was not found guilty following a trial. In other words, Ahlers argues the statute only

applies where there is a trial, and since he pled guilty, there was no corroborating evidence

"admitted in the case." The Tenth District Court of Appeals, however, explicitly rejected this

argument in State v. Bevly, 10th Dist. Franklin No. 12AP-471, 2013-Ohio-1352. As the Tenth

District stated:

               The trial court also held that the evidence was not admissible
               because it was not admitted in the case and that it was not
               evidence as anticipated in R.C. 2907.05(C)(2)(a). The trial court
               erred in both of these holdings. The case includes all parts
               thereof, one of which is sentencing. Rules of evidence are not
               applicable to miscellaneous criminal proceedings including
               sentencing. However, the sentence procedure is part of the case
               despite the fact that defendant had pled guilty to two charges.
               There is no conflict with Evid.R. 102, which provides that the
               purpose of the rules is to provide procedures for the
               "adjudication of causes." Criminal cases are not fully adjudicated
               without a sentence having been ordered. Evidence is relevant if
               it has any tendency to make the existence of any fact that is of
               consequence to the determination of the action more or less
               probable than it would be without the evidence. Evid.R. 401.
               The disputed testimony meets that standard. It is evidence that
               is of great value in determining the crucial issue of whether the
               court "shall impose" a mandatory prison sentence. The fact that
               the rules of evidence do not apply in some situations in a trial
               such as in sentencing does not affect the character of the
               evidence but only the procedure for introducing it.

Id. at ¶ 18.

       {¶ 13} We agree with the Tenth District's decision in Bevly as it relates to their

interpretation of the phrase "admitted in the case" as found in R.C. 2907.05(C)(2)(a). Ahlers'

argument to the contrary is therefore without merit and overruled.

       {¶ 14} Next, Ahlers argues R.C. 2907.05(C)(2)(a) violates his Fifth, Sixth and

Fourteenth Amendment rights under the United States Constitution, Section 16, Article I of

the Ohio State Constitution, and is contrary to the United States Supreme Court's decisions

in Apprendi and Alleyne v. United States, __ U.S.__ , 133 S.Ct. 2151 (2013). However, just
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like his first argument addressed above, all of Ahlers' arguments regarding the

constitutionality of R.C. 2907.05(C)(2)(a) have already been rejected by the Tenth District

Court of Appeals in Bevly, 2013-Ohio-1352; North, 2013-Ohio-4607 State v. F.R., 10th Dist.

Franklin No. 13AP-525, 2014-Ohio-799; and State v. D.M.J., 10th Dist. Franklin No. 13AP-57,

2014-Ohio-1377.

      {¶ 15} As the Tenth District stated in providing a detailed and thorough analysis of

these issues in North:

             R.C. 2907.05(C)(2)(a) provides that a trial court shall impose a
             mandatory prison term on an offender convicted of gross sexual
             imposition against a victim less than 13 years old when
             "[e]vidence other than the testimony of the victim was admitted in
             the case corroborating the violation." In this case, the trial court
             concluded that the statute was unconstitutional and declined to
             apply it, relying in part on a decision by another judge of the
             Franklin County Court of Common Pleas in State v. Bevly,
             Franklin County C.P. No. 11CR-4152. After the trial court's
             decision in the instant case, we reversed the common pleas
             court decision upon which the trial court relied. State v. Bevly,
             10th Dist. No. 12AP-471, 2013-Ohio-1352. Bevly addressed a
             similar scenario and guides our consideration of this appeal, but,
             due to additional developments in the law since that decision and
             additional arguments raised by appellee, we cannot rely solely on
             the precedent set in Bevly.

             In Bevly, the defendant pled guilty to two counts of gross sexual
             imposition against a victim less than 13 years old. Bevly at ¶ 3.
             At the plea hearing, the prosecution introduced the testimony of
             a police detective, who testified that the defendant confessed to
             the offenses. The state also introduced a compact disc
             recording of the defendant's confession. Id. The trial court
             declined to impose a mandatory prison sentence under R.C.
             2907.05(C)(2)(a), holding that the mandatory sentence provision
             did not apply. Id. at ¶ 5. The trial court held that there was a
             question as to whether the evidence was "admitted" in the case
             because it was introduced at the sentencing hearing. The trial
             court also held that the statute was unconstitutional, in part
             because it violated the defendant's right to have a fact
             determining his sentence decided by a jury. Id. On appeal, this
             court reversed the trial court's decision. We concluded that the
             trial court erred in holding that R.C. 2907.05(C)(2)(a) was
             unconstitutional because the statutory provision was a
             "sentencing factor" that did not increase the maximum prison
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sentence and, therefore, was not required to be submitted to the
jury. Id. at ¶ 15. This court further concluded that the trial court
erred by holding that the evidence was not admitted in the case
and was not evidence as anticipated under R.C.
2907.05(C)(2)(a). Id. at ¶ 16. Accordingly, we remanded the
case to the lower court.

On June 17, 2013, less than three months after this court's
decision in Bevly, the United States Supreme Court issued its
decision in Alleyne v. United States, __ U.S. __, 133 S.Ct. 2151
(2013). Prior to Alleyne, the Supreme Court distinguished
between facts resulting in an increased mandatory minimum
sentence and facts resulting in a sentence greater than the
statutory maximum authorized by a jury verdict. With respect to
facts resulting in a sentence greater than the statutory maximum
based on a jury verdict, the Supreme Court held that, other than
the fact of a prior conviction, "any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt."
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). Thus, in
Apprendi, the Supreme Court found unconstitutional a New
Jersey statute that allowed a judge to impose additional
punishment based on the judge's finding, by a preponderance of
the evidence, that a defendant's purpose for unlawfully
possessing a weapon was to intimidate a victim based on a
particular characteristic. Id. at 491-97. However, prior to
Alleyne, the Supreme Court "declined to apply [the reasoning of]
Apprendi to facts that increased [a] mandatory minimum
sentence but not [a] maximum sentence." Alleyne at 2157, citing
Harris v. United States, 536 U.S. 545, 557 (2002). The Supreme
Court concluded that factual findings leading to a mandatory
minimum sentence merely restrained a judge's sentencing power
and, therefore, were not required to be submitted to the jury.
Harris at 567. Accordingly, in Bevly, we referred to R.C.
2907.05(C)(2)(a) as a "sentencing factor" and concluded that it
did not violate Apprendi because it did not increase the
maximum prison sentence that could have been imposed. Bevly
at ¶ 15.

In Alleyne, the United States Supreme Court overruled Harris
and held that facts increasing a mandatory minimum sentence
must be submitted to the jury and found beyond a reasonable
doubt. Alleyne at 2162-63. Appellee asserts that the question of
whether there was corroborating evidence other than the
testimony of the victim in this case is a "fact" that increases the
mandatory minimum sentence for a conviction for gross sexual
imposition against a victim less than 13 years old. Appellee
argues that, in accordance with Alleyne, the jury must determine
beyond a reasonable doubt that there was corroborating
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                                                            Butler CA2013-07-134

evidence before the trial court may impose a mandatory prison
term under R.C. 2907.05(C)(2)(a).

We acknowledge that, under Alleyne, a fact that increases a
mandatory minimum sentence must be submitted to the jury.
Alleyne explained that this was necessary because "the core
crime and the fact triggering the mandatory minimum sentence
together constitute a new, aggravated crime." Id. at 2161. In
Alleyne, the relevant fact was whether the defendant brandished
a firearm, which increased the minimum penalty for using or
carrying a firearm in relation to a crime of violence. Id. at 2155.
Recent cases applying Alleyne have involved similar factual
determinations. See United States v. Donovan, __ Fed. Appx.
__, 2013 WL 4792866, *7 (6th Cir. Sept.9, 2013) ("[B]ecause the
district court, rather than a jury, found discharging of the firearm,
Moore's sentence for violation of [18 U.S.C] § 924(c)(1)(A) must
be vacated and remanded for resentencing consistent with the
jury's verdict."); United States v. Claybrooks, __ F.3d __, 729
F.3d 699, 2013 WL 4757201, *8 (7th Cir. Sept.5, 2013) ("After
Alleyne, Claybrooks's mandatory minimum sentence must be
determined by the drug quantity described in the jury's special
verdict form. * * * The district judge cannot raise the mandatory
sentencing floor based on its own determination that
Claybrooks's offense involved additional amounts of narcotics
beyond those determined by the jury."). However, the majority in
Alleyne was careful to declare that the decision "[did] not mean
that any fact that influences judicial discretion must be found by
a jury." Alleyne at 2163. See also United States v. Gabrion, 719
F.3d 511, 532 (6th Cir.2013) ("Apprendi does not apply to every
'determination' that increases a defendant's maximum sentence.
Instead it applies only to findings of 'fact' that have that effect.").

We conclude that the determination called for under R.C.
2907.05(C)(2)(a) does not involve the same type of "fact" that
must be determined by the jury under Apprendi and Alleyne. As
noted above, the key fact in Alleyne was whether the defendant
brandished a firearm while committing his crime. Similarly, in
Apprendi, the relevant fact was whether the defendant committed
his crime with the purpose of intimidating an individual or group
because of race, color, gender, handicap, religion, sexual
orientation or ethnicity. Apprendi at 468-69. By contrast, in this
case, the "fact" to be determined is whether corroborating
evidence was introduced in the case. The volume of evidence
introduced in a case is not the type of "fact" that, when combined
with the "core crime" of gross sexual imposition against a victim
less than 13 years old, constitutes "a new, aggravated crime."
Alleyne at 2161. The elements of the crime of gross sexual
imposition remain constant, irrespective of whether corroborating
evidence was introduced. To the extent that the quantity of
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                evidence presented in a case can be characterized as a "fact,"
                we hold that that (sic) it constitutes a fact influencing judicial
                discretion that may be determined by a judge and need not be
                submitted to the jury. See Alleyne at 2163 ("We have long
                recognized that broad sentencing discretion, informed by judicial
                factfinding, does not violate the Sixth Amendment.").

Id. at ¶ 5-10; see also F.R., 2014-Ohio-799 at ¶ 8-15; and D.M.J., 2014-Ohio-1377 at ¶ 9-14.

        {¶ 16} After a thorough review of the record, as well as the pertinent case law

addressed herein, we agree with the well-reasoned and thorough decisions issued by the

Tenth District as it relates to the constitutionality of R.C. 2907.05(C)(2)(a) as set forth in

Bevly; North; F.R.; and D.M.J.2 In so holding, we emphasize that just like in Bevly and

D.M.J., the state in this case submitted a recording of Ahlers' confession to police, thereby

corroborating the victims' allegations against him. Moreover, by entering a guilty plea, it is

well-established that Ahlers not only admitted to the acts described in the bill of information,

but he also admitted guilt of the substantive crime. A defendant who has entered a guilty

plea without asserting actual innocence, such as the case here, "is presumed to understand

that he has completely admitted his guilt." State v. Robinson, 12th Dist. Butler No. CA2013-

05-085, 2013-Ohio-5672, ¶ 20, quoting State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415,

syllabus.

        {¶ 17} Pursuant to its police powers, "the General Assembly has the authority to enact

laws defining criminal conduct and to prescribe its punishment." State v. Thompkins, 75 Ohio

St.3d 558, 560 (1996). Based on the plain language of R.C. 2907.05(C)(2)(a), "[i]t seems

obvious that the General Assembly felt that it was better to start out with a sentence that was

not required to be mandatory and to make the sentence mandatory only if there is

corroborative proof beyond the alleged victim's testimony that the crime was actually




2. We note that the Tenth District's decisions in Bevly and North are currently pending before the Ohio Supreme
Court.
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                                                                          Butler CA2013-07-134

committed." Bevly, 2013-Ohio-1352 at ¶ 9. Just like the Tenth District before us, we find this

does not run afoul of the United States Constitution, the Ohio State Constitution, or the

United States Supreme Court's decisions in Apprendi or Allenye.               Therefore, Ahlers'

arguments regarding the constitutionality of R.C. 2907.05(C)(2)(a) are without merit and

overruled.

       {¶ 18} Accordingly, having found no merit to any of the arguments advanced by Ahlers

within his two assignments of error, Ahlers' first and second assignments of error are

overruled.

       {¶ 19} Judgment affirmed.


       RINGLAND, P.J., concurs.


       PIPER, J., dissents.


       PIPER, J., dissenting.

       {¶ 20} R.C. 2907.05(C)(2)(a)'s requirement of a mandatory prison sentence triggered

solely by corroborating evidence is constitutionally infirm. Unlike the majority opinion, as well

as the reasons set forth by the Tenth District Court of Appeals, I would find, at the least, that

the statute violates a defendant's Sixth Amendment right according to Alleyne v. United

States, __U.S.__ , 133 S.Ct. 2151 (2013). I would also find that the statute runs afoul of

equal protection because it treats defendants with the exact same culpability, convicted of

the exact same crime, differently. This sentencing difference permits one the opportunity to

overcome the presumption of a prison sentence while ordering the other to a mandatory

sentence, without a rational basis for the disparate treatment.

       {¶ 21} The Sixth Amendment of the United States Constitution provides that

defendants "accused" of a "crime" have the right to a trial "by an impartial jury." "This right, in

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conjunction with the Due Process Clause, requires that each element of a crime be proved to

the jury beyond a reasonable doubt." Alleyne, 133 S.Ct. at 2156. "The substance and scope

of this right depend upon the proper designation of the facts that are elements of the crime."

Id.

       {¶ 22} In discussing what differentiates elements of a crime from sentencing factors,

the Alleyne Court reviewed prior case law that first set forth the proposition that "any fact that

increased the prescribed statutory maximum sentence must be an 'element' of the offense to

be found by the jury." Id. at 2157, citing Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct.

2348 (2000). The Alleyne Court also applied Apprendi when finding that "a fact is by

definition an element of the offense and must be submitted to the jury if it increases the

punishment above what is otherwise legally prescribed." 133 S.Ct. at 2158. The Court noted

that "Apprendi's definition of 'elements' necessarily includes not only facts that increase the

ceiling, but also those that increase the floor. Both kinds of facts alter the prescribed range

of sentences to which a defendant is exposed and do so in a manner that aggravates the

punishment." Id.

       {¶ 23} Given this law, I would find that requiring the trial court to order a mandatory

sentence without first submitting the issue to a trier of fact runs afoul of the Sixth

Amendment.      The issue of whether there is corroborating evidence to support the

defendant's conviction is an issue that must be submitted to the trier of fact before such a

determination can be made because whether there is corroborating evidence is a fact that

alters the range of the sentence to which a defendant is to be exposed. The determination of

corroborating evidence aggravates the possible punishment. In the absence of corroborating

evidence, the defendant has the ability to rebut the presumption of a prison sentence and

possibly avoid a prison term altogether. If there is corroborating evidence, however, the

ability to rebut the presumption of a prison sentence is nonexistent because the prison
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sentence becomes mandatory.

        {¶ 24} As stated by the Alleyne Court, Apprendi's definition of element, as that term is

considered within the concept of elements of a crime that must be proven by the state,

necessarily includes not only facts that increase the ceiling, but also those that increase the

floor of possible punishments that the defendant may face. Here, the imposition of a

mandatory prison sentence increases the floor of possible punishments that the defendant

may face because in one instance, the possible punishment is zero years in prison, where in

the other instance, there is a mandatory prison sentence of at least one year.

        {¶ 25} When asked to reconcile its holding in Bevly with the Alleyne decision, the

Tenth District Court of Appeals found that "the determination called for under R.C.

2907.05(C)(2)(a) does not involve the same type of 'fact' that must be determined by the jury

under Apprendi and Alleyne." State v. North, 10th Dist. Franklin No. 13AP-110, 2013-Ohio-

4607, ¶ 10. The North court went on to state, "the 'fact' to be determined is whether

corroborating evidence was introduced in the case. The volume of evidence introduced in a

case is not the type of 'fact' that, when combined with the 'core crime' of gross sexual

imposition * * * constitutes a 'new aggravated crime.'" Id. I disagree.

        {¶ 26} It is true that the elements of gross sexual imposition do not change regardless

of whether there is corroborating evidence because the elements are listed in R.C.

2907.05(A). However, I would find that whether there is corroborating evidence is exactly the

type of fact that Apprendi and Alleyne anticipated as one that must be submitted to a trier of

fact because in the absence of a finding of corroborating evidence, the punishment for the
                                                                                        3
crime is less, and even includes the possibility of no prison time at all.



3. Even if the trial court sentences the defendant to prison because that defendant did not successfully rebut the
presumption of a prison sentence, the defendant against whom no corroborating evidence was admitted could
possibly receive judicial release or some other benefits not afforded to those serving a mandatory prison term.
State v. Parsil, 6th Dist. Lucas No. L-13-1044, 2014-Ohio-1993.
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        {¶ 27} My opinion is not changed by the fact that Ahlers pled guilty to his crimes, thus

admitting full criminal culpability. While it is true that Ahlers has admitted to the crime as

charged by the state and was informed that his sentence would be mandatory before he

changed his plea, Ahlers did not plead guilty to the existence of corroborating evidence. Nor

was Alhlers advised that corroborating evidence would be introduced into the case at a later

hearing. The information charging the crimes against Ahlers did not "charge" corroborating

evidence, as would be the case with a gun specification. In fact, the trial court never made a

finding that there was corroborating evidence at sentencing or in its judgment entry of

conviction. We are left with circumstances wherein the offender was not charged with

corroborating evidence, no finding was made that corroborating evidence existed, and no

guilty plea was made to the existence of corroborating evidence.

        {¶ 28} While it may be true that there is either corroborating evidence or there is not,

the Sixth Amendment's requirement that criminal defendants have their guilt determined by a

trier of fact applies to situations where the existence of those facts change the punishment to

which the offender is to be subjected.4 As recognized by the North court, federal courts have

applied Alleyne since its release. While the Tenth District found these federal cases

distinguishable, I believe these cases to be instructive because they are similar to the case at

bar. In Alleyne, the fact in question was specific to brandishing firearms. Either the

defendant brandished a firearm or he did not. In United States v. Donovan, 539 Fed Appx

648 (6th Cir.2013), the fact in question was specific to discharging a firearm. Either the

defendant discharged a firearm or he did not. In United States v. Claybrooks, 729 F.3d 699

(7th Cir.2013), the question involved the quantity of drugs possessed by the defendant.

Either the defendant possessed a certain amount of drugs or he did not.


4. I am also compelled to point out that there is no requirement that the "corroborating evidence" be reliable or
trustworthy. The issue of whether evidence is truly corroborating or not should be determined by a trier of fact.
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                                                                                       Butler CA2013-07-134

       {¶ 29} However, in each of these cases, the facts were found to be elements of the

offense rather than mere sentencing factors because whether or not the defendant was

subject to those facts changed the sentence and aggravated it in some way. This was true,

despite the fact that it would seem straight forward for the trial court to make a determination

of whether the fact in question applied or not. The same situation applies to the case sub

judice. Although the trial court could seemingly make a simple determination as to whether

there was some evidence other than the victim's statement in any given case, this fact should

be submitted to the trier of fact pursuant to the Sixth Amendment.

       {¶ 30} I would also find that the statute is unconstitutional because there is no rational

basis for statutorily requiring two defendants to be treated differently who have the same

culpability and were convicted of the same offense of gross sexual imposition. Once the

defendant is convicted, i.e., once the trier of fact has found beyond a reasonable doubt that

the defendant unlawfully had sexual contact with a child under 13 years of age, the "volume of

evidence" against that defendant is meaningless as it applies to sentencing. Although the

North court reasoned corroborating evidence is merely akin to recognizing that a higher

"volume of evidence" exists in a case, I would find that such reliance on volume of evidence
                                                      5
has no place in criminal law jurisprudence.

       {¶ 31} Equal protection requires that individuals be treated in a manner similar to

others in like circumstances. McCrone v. Bank One Corp., 107 Ohio St.3d 272, 2005-Ohio-

6505, ¶ 6. Rational-basis scrutiny applies when the statute does not involve a suspect class

or a fundamental right, and such statute will be held constitutional "if it bears a rational

relationship to a legitimate governmental interest." State v. Peoples, 102 Ohio St.3d 460,



5. In fact, jury instructions have included admonitions warning the jury to rely upon the quality of evidence, rather
than the quantity. One credible witness can overcome a plethora of other evidence, and convictions based upon
one piece of evidence are convictions nonetheless so long as that one piece of evidence has established the
elements of a crime beyond a reasonable doubt.
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2004-Ohio-3923, ¶ 7. In applying this standard, the Ohio Supreme Court has stated that

classifications "are invalid only if they bear no relation to the state's goals and no ground can

be conceived to justify them." Id.

       {¶ 32} As noted by the majority, the purpose of the statute is to require a prison

sentence when the defendant has committed gross sexual imposition against a child younger

than 13 when that conviction is because of "more than a single piece of evidence." I have

trouble seeing how the government has a legitimate interest in sentencing a convicted sex

offender to a mandatory prison term only when there are two pieces of evidence, rather than

just one. As stated by the Ohio Supreme Court, "the overriding purposes of felony sentencing

are to protect the public from future crime by the offender and others and to punish the

offender." Peoples at ¶ 8, citing R.C. 2929.11(A). If this is truly the purpose of felony

sentencing, I do not believe that permitting a convicted sex offender who was found guilty of

his crimes the chance to overcome the presumption of a prison sentence is rational simply
                                                            6
because there was no duplication of evidence.                   Again, either the trier of fact found the

defendant guilty, or it did not. Either the trier of fact found the victim's testimony credible, or it

did not.

       {¶ 33} R.C. 2907.05(C)(2)(a) places an unlawful emphasis on the volume of evidence

presented by the state against the defendant. The statute literally provides that a convicted

sex offender can avoid a prison sentence, so long as the only evidence admitted against him

was the victim's own testimony. On the other hand, the prison sentence is mandatory so long

as the state presents any piece of evidence, other than the victim's testimony, against the




6. This "corroborating evidence" can simply be a duplication of evidence, i.e., the defendant pleads guilty, admits
to the crime, and the state introduces evidence that he did so twice, once before the court by his guilty plea and
another time when he was initially confronted with the accusations.
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defendant.7

        {¶ 34} Criminal sentences should be proportionate to "personal culpability of the

criminal offender." Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676 (1987). For this reason,

Ohio sentencing courts are required to consider the purposes and principles of sentencing,

as well as recidivism factors, and to sentence the defendant accordingly. R.C. 2929.11, as

discussed above, provides that the two purposes of felony sentencing are to protect the

public from future crime by the offender and others and to punish the offender. R.C. 2929.11

states, "to achieve those purposes, the sentencing court shall consider the need for

incapacitating the offender, deterring the offender and others from future crime, rehabilitating

the offender, and making restitution to the victim of the offense, the public, or both." The

statute, however, does not direct a court to punish based upon the volume of evidence the

state offered against the offender.

        {¶ 35} R.C. 2929.12 directs a sentencing court to consider specific factors to

determine the proper sentence based upon the purposes and principles of sentencing as well

as any recidivism factors. In adhering to this statute, the sentencing court is directed to

consider certain factors, some of which are specific to the seriousness of the conduct,

including: the victim's physical, mental, or financial injuries because of the crimes against

them; whether the crime related to an offender's public office or position of trust in the

community; whether the offender's relationship with the victim facilitated the offense; or

whether the offender was motivated by prejudice when committing the crime.

        {¶ 36} R.C. 2929.12(C) also directs a court to consider certain factors regarding the



7. As I previously noted, the statute does not require that the corroborating evidence be reviewed for its
reliability. There is no rational basis for punishing a defendant by virtue of somewhat flimsy or circumstantial
evidence differently from a defendant who was convicted based upon the testimony of one reliable and
compelling victim. As this court has stated, "courts have consistently held that the testimony of the victim, if
believed, is sufficient to support a conviction, even without further corroboration." State v. Hernandez, 12th Dist.
Warren No. CA2010-10-098, 2011-Ohio-3765, ¶ 40.
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offender, the offense, or the victim, that would normally indicate that the offender's conduct is

less serious than conduct normally constituting the offense. These factors include: whether

the victim induced or facilitated the offense; whether the offender was provoked; whether the

offender did not cause or expect to cause physical harm; or whether there are grounds that

are not enough to constitute a defense but nonetheless offer grounds to mitigate the

offender's conduct.

       {¶ 37} R.C. 2929.12(D) and (E) also set forth several recidivism factors, including

whether: the offender was subject to community control at the time he committed the crime;

the offender had previously been adjudicated a delinquent child or had a history of criminal

convictions; the offender has not responded favorably to sanctions previously imposed for

criminal convictions; the offender has demonstrated a pattern of drug or alcohol abuse that is

related to the offense or has refused treatment; the offender shows remorse or not.

       {¶ 38} Despite codifying multiple factors that a trial court shall consider when

determining a sentence, nowhere in R.C. 2929.11 or 2929.12 does the Legislature ask the

trial court to consider the volume of evidence presented against the offender. The volume of

evidence is not stated or inferred within the purposes and principles of sentencing, nor is it

stated or inferred within the factors a trial court is to consider when sentencing a defendant.

The volume of evidence is neither a mitigating nor aggravating factor to be considered by the

sentencing court, and any consideration of such when sentencing is contrary to Ohio's

statutory scheme. The Legislature has codified that criminal offenders should be subject to a

sentence based on the purposes and principles of sentencing, as well as recidivism factors,

none of which hinge upon the volume of evidence. The Ohio General Assembly has tread

down a slippery slope by impermissibly codifying the concept of residual doubt though R.C.

2907.05(C)(2)(a).

       {¶ 39} "Residual doubt has been described as a lingering uncertainty about facts, a
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state of mind that exists somewhere between 'beyond a reasonable doubt' and 'absolute

certainty.'" State v. McGuire, 80 Ohio St.3d 390, 402 (1997). While the term is most often

used in connection with mitigation arguments offered in federal courts against imposition of

the death penalty, I find the term analogous to the concept that the Ohio Legislature

attempted to codify within R.C. 2907.05(C)(2)(a).

        {¶ 40} I believe the Legislature was attempting to give trial courts an ability to avoid

imposition of a prison sentence in cases where the trial court had lingering doubts as to

whether the defendant truly had unlawful sexual contact with a child because of doubts as to

the credibility of the victim's testimony. Ohio courts no longer consider residual doubt as a

mitigating factor in death penalty cases because "our system requires that the prosecution

prove all elements of a crime beyond a reasonable doubt. Therefore, it is illogical to find that

the defendant is guilty beyond a reasonable doubt, yet then doubt the certainty of the guilty

verdict by recommending mercy in case a mistake has occurred." McGuire, 80 Ohio St.3d at

403. I believe the same principle applies to the case at bar.

        {¶ 41} There is no provision within Ohio's criminal statutes that provide for convictions

only upon a certain volume of evidence, nor do I believe there should be any sentencing

statutes that provide different sentences based upon the volume of evidence or the number

of witnesses presented against the defendant. There is no such thing as being a "little guilty"

or "sorta convicted." Yet, R.C. 2907.05(C)(2)(a) punishes two people convicted of the same
                                                               8
crime differently without a rational basis to do so.

        {¶ 42} Based on either the Sixth Amendment issue, or because of equal protection

problems, I would find that R.C. 2907.05(C)(2)(a) is unconstitutional. I believe that the


8. This is especially true where the defendant who cooperates with police by giving a statement is treated more
harshly than one who does not cooperate, does not admit his guilt, or refuses to accept responsibility for his
actions. Some sexual offenders immediately admit their culpability because they are remorseful and desire to
mitigate the impact of their crime upon the victim. There is no rational basis for treating this offender who has
remorse more harshly than an offender who has no remorse.
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Legislature needs to decide whether it wants a mandatory sentence for all defendants

convicted of gross sexual imposition, or whether all defendants convicted of gross sexual

imposition have the same opportunity to overcome a presumptive prison sentence. At the

very least, the trier of fact should make a finding regarding corroborating evidence, as

whether corroborating evidence exists in a case is an element of that offense. For these

reasons, I respectfully dissent from the majority opinion.




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