[Cite as State v. Snyder, 2013-Ohio-2046.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                SENECA COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 13-12-38

        v.

STEVEN R. SNYDER,                                        OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Seneca County Common Pleas Court
                            Trial Court No. 11 CR 0083

      Judgment Affirmed in Part, Reversed in Part and Cause Remanded

                              Date of Decision: May 20, 2013




APPEARANCES:

        Susan J. Moran for Appellant

        Derek W. DeVine and Rhonda L. Best for Appellee
Case No. 13-12-38


ROGERS, J.

       {¶1} Defendant-Appellant, Steven R. Snyder, appeals the judgment of the

Court of Common Pleas of Seneca County sentencing him to a total prison term

of 53 months for his convictions on attempted illegal use of a minor in nudity-

oriented material, pandering obscenity involving a minor, and tampering with

evidence. On appeal, Snyder argues that the trial court erred by: (1) imposing a

sentence that was contrary to law; (2) improperly considering the purposes and

principles of felony sentencing; (3) prohibiting him from participating in certain

prison programs; (4) imposing consecutive sentences; (5) misinterpreting his

Ohio Risk Assessment System (“ORAS”) score; and (6) failing to merge his

conviction for attempted illegal use of a minor in nudity-oriented material with

his conviction for pandering obscenity involving a minor for the purposes of

sentencing.    Snyder also claims that the State engaged in prosecutorial

misconduct by referring to purportedly unsubstantiated allegations at the

sentencing hearing. For the reasons that follow, we affirm in part and reverse in

part the trial court’s judgment.

       {¶2} On June 15, 2011, the Seneca County Grand Jury indicted Snyder on

three counts. Count I was for illegal use of a minor in nudity-oriented materials

in violation of R.C. 2907.323(A)(1), (B), a felony of the second degree. Count II

was for pandering obscenity involving a minor in violation of R.C.


                                       -2-
Case No. 13-12-38


2907.321(A)(5), (C), a felony of the fourth degree. Count III was for tampering

with evidence in violation of R.C. 2921.12(A)(1), (B), a felony of the third

degree.

       {¶3} The indictment arose from Snyder’s activities on April 6, 2011. At

that time, he was staying at his cousin’s residence. When Snyder’s cousin left to

run an errand, Snyder was left to supervise his cousin’s two-year old daughter.

While supervising the child, Snyder changed her diaper and as he did so, he took

several pictures of the child’s naked body on his cellular phone.        Shortly

thereafter, the wife of Snyder’s cousin discovered the pictures on Snyder’s phone

and reported them to the police.

       {¶4} The child was taken to the hospital so that she could be examined for

the possibility of sexual assault. Meanwhile, the police arrested Snyder and

executed a search in which they seized his laptop computer and phone. They

were unable to recover any nude pictures of the child from Snyder’s phone.

However, a forensic analysis of Snyder’s computer revealed several files

containing child pornography. It also showed that several other files containing

pornographic images had been deleted.

       {¶5} On October 5, 2011, Count I was amended to attempted illegal use of

a minor in nudity-oriented material, a felony of the third degree. Snyder pleaded

guilty to Count I, as amended, and Counts II and III, as originally indicted. In


                                        -3-
Case No. 13-12-38


November 2011, the trial court sentenced him to serve a total prison term of 77

months.

       {¶6} Snyder appealed the trial court’s sentence to this court. We affirmed

in part and reversed in part the trial court’s original order. We found that the trial

court did not err in failing to merge Snyder’s convictions for the purposes of

sentencing.   State v. Snyder, 3d Dist. No. 13-11-37, 2012-Ohio-3069, ¶ 16

(“Snyder I”). However, we found that the trial court erred in failing to apply

House Bill 86 (“H.B. 86”) when sentencing Snyder. Id. at ¶ 22. Consequently,

we vacated Snyder’s original sentence and remanded this matter for de novo

sentencing in accord with H.B. 86. Id. at ¶ 28. We further instructed the trial

court to resentence Snyder “based upon actual facts that are in the record, and not

merely unsupported conjecture about future possibilities.” Id. at ¶ 26.

       {¶7} On remand, the trial court conducted a sentencing hearing on August

23, 2012. According to the Presentence Investigation Report (“PSIR”) offered

into the record, Snyder has no previous criminal convictions. The PSIR lists

Snyder’s ORAS score as indicating a low risk. But, it also includes a professional

override of the low-risk indication and suggests that Snyder’s actual risk level is

“very high due to the nature of the offense.” (PSIR, p. 17). Further, the PSIR

found that “[t]here was no physical harm to [the victim] expected or caused.” (Id.

at p. 19).


                                         -4-
Case No. 13-12-38


       {¶8} At the sentencing hearing, the State indicated that one of the pictures

taken by Snyder showed the victim’s vagina spread open and suggested that

Snyder touched it. Additionally, the State represented that the incident left a

“devastating impact” on the victim, who fought her mother when her diapers

were changed in the days following the incident. Tr., p. 5. Further, the State

referred to the emotional drain that the victim’s parents suffered from Snyder’s

actions.

       {¶9} The State also offered two victim impact statements into the record.

The victim’s mother completed the first statement, which prompted her to

describe the physical and psychological effects of Snyder’s crimes. In response

to both prompts, the mother indicated that the crime had caused no physical or

psychological effects. The second victim impact statement did not refer to any

physical or psychological harm suffered by the victim.

       {¶10} After Snyder offered his own statement of remorse at the hearing,

the trial court discussed its consideration of the record:

          The Court has considered the record, has considered the oral
      statements made today, has reviewed the two victim impact
      statements, has again reviewed the presentence investigation report
      prepared in this case.
          The Court has considered the principals [sic] and purposes of
      felony sentencing under Revised Code Section 2929.11.
          The Court will be reviewing for the record and balancing the
      seriousness and recidivism factors under Ohio Revised Code Section
      2929.12.


                                         -5-
Case No. 13-12-38


          ***

              The Court has looked at and reviewed carefully the presentence
          investigation report. And on page 17, while it shows an ORAS score
          of eight, risk of, or below there is a professional override indicated
          that says, “Yes, very high due to the nature of the offense” on page
          17.
              The Court has looked at the seriousness factors where two of
          them have been marked by the presentence report under [R.C.]
          2929.12(B): “Injury to victim was worsened by the physical or
          mental condition or age of the victim and the offender’s relationship
          with the victim facilitated the offense.”
              The less serious offense considerations under [R.C.] 2929.12(C)
          was [sic], “there was no physical harm to persons or property
          expected or caused” marked.
              Under “recidivism factors” under [R.C.] 2929.12(D) none of
          them are marked.

          ** *

             The Court has looked at the recommendation in the presentence
          investigation report and is of the opinion there should be a
          professional override based on that recommendation. Tr., p. 17-19.

Based on the consideration of the above items, the trial court found that “a prison

term is consistent with the purposes and principals [sic] of felony sentencing * * *

and that the shortest prison term * * * will not adequately protect the public from

future crime by [Snyder] or others.”1 Tr., p. 24.

          {¶11} The trial court then determined that consecutive sentences were

    appropriate:


1
   The trial court apparently misspoke at the hearing by stating that “the shortest prison term will not
demean the seriousness of [Snyder’s] conduct * * *.” Tr., p. 24. In its judgment entry of sentencing, the
trial court corrected this oversight by stating that “the shortest prison term will demean the seriousness of
[Snyder’s] conduct * * *.” (Docket No. 56, p. 3).

                                                    -6-
Case No. 13-12-38


         After consideration of everything, the victim impact statements,
      the offenses convicted, the fact involving the convictions as related
      by the statements of the prosecution, and their oral statements to the
      Court, after a careful review of 22 pages of presentence investigation
      report, and all other matters of record in this case, this Court
      continues to find that consecutive sentences are necessary to protect
      the public from future crime and to punish, even though it required
      “or” the Court finds to punish [Snyder].
         The Court also finds that consecutive sentences are not
      disproportionate to the seriousness of [Snyder’s] conduct and to the
      danger to [sic] the offender poses to the public.
         The Court finds that at least two of the multiple offenses, Counts
      One and Two were committed as part of one or more courses of
      conduct, and the harm caused by two or more of the multiple
      offenses so committed was so great or unusual that no single prison
      term for any of the offenses committed as part of the courses of
      conduct adequately reflects the seriousness of [Snyder’s] conduct,
      Revised Code Section 2929.14(C)(4). Tr., p. 25-26.

       {¶12} Accordingly, the trial court sentenced Snyder to “serve a stated

prison term of 35 months * * * on Count One, a stated prison term of 17 months *

* * on Count Two, and a stated prison term of 12 months * * * on Count Three.”

Tr., p. 27. Further, the sentences for Counts I and II were ordered to be served

consecutively to each other while Snyder’s sentence for Count III was to be

served concurrently with his terms for Counts I and II.

       {¶13} The trial court issued a judgment entry of re-sentence on September

19, 2012 in which it journalized the above findings. The judgment entry also

indicated that the trial court imposed the same sentences for Counts II and III as it

had at the sentencing hearing. However, instead of imposing a 35-month prison

term for Count I, the trial court’s judgment entry imposed a 36-month prison term

                                        -7-
Case No. 13-12-38


for Count I. Further, the trial court ordered that Snyder not have any contact with

the “victims in this case.” (Docket No. 56, p. 8).

       {¶14} Snyder timely appealed from this judgment, presenting the

following assignments of error for our review.

                           Assignment of Error No. I

      THE TRIAL COURT ERRED BY IMPOSING A THIRTY-
      FIVE MONTH SENTENCE WHICH WAS CONTRARY TO
      LAW.

                           Assignment of Error No. II

      THE TRIAL COURT ABUSED ITS DISCRETION BY
      IMPOSING A PRISON SENTENCE CONTRARY TO R.C.
      2929.14 AND THE PURPOSES AND PRINCIPLES OF THE
      FELONY SENTENCING GUIDELINES.

                          Assignment of Error No. III

      THE TRIAL COURT ERRED WHEN IT PROHIBITED THE
      APPELLANT FROM PARTICIPATING IN AVAILABLE
      PRISON PROGRAMS.

                          Assignment of Error No. IV

      THE   TRIAL   COURT    ERRED                     BY     IMPOSING
      CONSECUTIVE SENTENCES.

                           Assignment of Error No. V

      THE TRIAL COURT ERRED IN INTERPRETING THE
      APPELLANT’S ORAS SCORE.




                                        -8-
Case No. 13-12-38


                          Assignment of Error No. VI

      THE PROSECUTOR COMMITTED MISCONDUCT BY
      ARGUING UNSUBSTANTIATED ALLEGATIONS AT
      SENTENCING DEPRIVING THE APPELLANT OF HIS
      CONSTITUTIONAL RIGHT TO DUE PROCESS.

                          Assignment of Error No. VII

      THE TRIAL COURT ERRED IN CONVICTING AND
      CONSECUTIVELY SENTENCING ALLIED OFFENSES OF
      SIMILAR IMPORT WHICH RESULTED IN CUMULATIVE
      PUNISHMENTS VIOLATING THE DOUBLE JEOPARDY
      CLAUSE OF THE FIFTH AMENDMENT TO THE UNITED
      STATES CONSTITUTION, AS APPLIED TO THE STATES
      THROUGH THE FOURTEENTH AMENDMENT, AND
      SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.

       {¶15} Due to the nature of the assignments of error, we elect to address

them out of order.

       {¶16} Before turning to the merits of Snyder’s assignments of error, we

must address the proper scope of the record before us. Snyder has sought to

supplement the record with materials purportedly provided to him during

discovery. App.R. 9(A)(1) limits the record on appeal to “[t]he original papers

and exhibits thereto filed in the trial court, the transcript of the proceedings, if

any, including exhibits, and a certified copy of the docket and journal entries

prepared by the clerk of the trial court * * *.” Since the materials offered by

Snyder are not within the auspices of App.R. 9, they are not properly before us

and we decline to consider them when addressing Snyder’s arguments. See State


                                        -9-
Case No. 13-12-38


v. Ishmail, 54 Ohio St.2d 402 (1978), paragraph one of the syllabus (“A

reviewing court cannot add matter to the record before it, which was not part of

the trial court’s proceedings, and then decide the appeal on the basis of the new

matter.”); State v. Zhovner, 3d Dist. No. 2-12-13, 2013-Ohio-749, ¶ 12 (finding

that materials attached to the appellate brief but not filed with the trial court were

not properly before the reviewing court); State v. Hartley, 3d Dist. No. 14-11-29,

2012-Ohio-4108, ¶ 19 (same); Deitz v. Deitz, 3d Dist. No. 14-11-06, 2012-Ohio-

130, ¶ 8 (same).

       {¶17} Additionally, Snyder has attached a variety of “exhibits” to his

appellate brief. These exhibits are not included in the appellate record and

consequently we also decline to consider them.

                            Assignment of Error No. I

       {¶18} In his first assignment of error, Snyder asserts that the trial court

handed down a sentence for his conviction on Count I that was contrary to law.

We agree.

       {¶19} A reviewing court must conduct a meaningful review of the trial

court’s imposed sentence. State v. Daughenbaugh, 3d Dist. No. 16-07-07, 2007-

Ohio-5774, ¶ 8. Such review allows the court to “modify or vacate the sentence

and remand the matter to the trial court for re-sentencing if the court clearly and

convincingly finds that the record does not support the sentence or that the


                                        -10-
Case No. 13-12-38


sentence is otherwise contrary to law.” Id. Clear and convincing evidence is that

“which will produce in the mind of the trier of facts a firm belief or conviction as

to the facts sought to be established.” Cross v. Ledford, 161 Ohio St. 469 (1954),

paragraph three of the syllabus.        An appellate court should not, however,

substitute its judgment for that of the trial court because the trial court is “‘clearly

in the better position to judge the defendant’s likelihood of recidivism and to

ascertain the effect of the crimes on the victims.’” State v. Watkins, 3d Dist. No.

2-04-08, 2004-Ohio-4809, ¶ 16.

       {¶20} Under Crim.R. 43(A)(1), criminal defendants are required to be

physically present at “every state of the criminal proceeding and trial,” including

“imposition of sentence.” This right is not merely procedural in nature but

implicates due process concerns. See State v. Railey, 1st Dist. No. C-120029,

2012-Ohio-4233, ¶ 20 (“A defendant thus has a due-process right, embodied in

Crim.R. 43(A), to be present when the court imposes sentence, and a trial court

cannot abrogate a defendant’s due-process rights by sentencing the defendant in

his absence.”). As a result of the physical presence requirement, “the trial court

errs when its judgment entry of sentence differs from the sentence that is

announced at the sentencing hearing in the defendant’s presence.”              State v.

Kovach, 7th Dist. No. 08-MA-15, 2009-Ohio-2892, ¶ 28, citing State v. Jordan,

10th Dist. No. 05AP-1330, 2006-Ohio-5208, ¶ 48.              Further, such an “error


                                         -11-
Case No. 13-12-38


    requires a remand for re-sentencing.” Jordan at ¶ 48; see also State v. Hunter,

    10th Dist. No. 10AP-1005, 2011-Ohio-3654, ¶ 22; State v. Quinones, 8th Dist.

    No. 91632, 2009-Ohio-2718, ¶ 68; State v. Culver, 160 Ohio App.3d 172, 2005-

    Ohio-1359, ¶ 71 (2d Dist.).

           {¶21} Here, the trial court orally imposed a 35-month prison sentence for

    Snyder’s conviction on Count I, yet it issued a judgment entry that imposed a 36-

    month prison sentence. This dichotomy between the trial court’s orally-imposed

    sentence and its judgment entry is plainly contrary to the dictates of Crim.R. 43

    and renders the trial court’s sentence on Count I contrary to law. 2 See Railey at ¶

    22 (finding that sentence was contrary to law where judgment entry imposed 18-

    month sentence while the trial court orally imposed a 12-month sentence at the

    sentencing hearing). As such, Snyder’s sentence on Count I is vacated and we

    remand this matter for resentencing on Count I.

           {¶22} Accordingly, we sustain Snyder’s first assignment of error.

                               Assignments of Error Nos. II & V

           {¶23} In his second assignment of error, Snyder argues that the trial court

    failed to properly consider the purposes and principles of felony sentencing when

    sentencing him on Counts I, II, and III. In his fifth assignment of error, Snyder

    contends that the trial court inappropriately relied on the professional override of

2
  The trial court’s oral sentence was also improper in light of R.C. 2929.14(A)(3)(b)’s command that the
prison term for third degree felony convictions “shall be nine, twelve, eighteen, twenty-four, thirty, or
thirty-six months.”

                                                 -12-
Case No. 13-12-38


    Snyder’s ORAS score when sentencing him. Since we have vacated Snyder’s

    sentence on Count I, the second assignment of error is moot insofar as it relates to

    that sentence. As such, we decline from addressing the merits of Snyder’s second

    assignment of error regarding his sentence on Count I. See App.R. 12(A)(1)(c).

    However, as to Snyder’s sentences on Counts II and III and the trial court’s use of

    the override of Snyder’s ORAS score, we disagree with Snyder’s contentions.3

                                         Sentencing Factors

           {¶24} R.C. Chapter 2929 governs sentencing. R.C. 2929.11 provides, in

    pertinent part, that the “overriding purposes of felony sentencing are to protect

    the public from future crime and to punish the offender.” R.C. 2929.11(A). In

    advancing these purposes, sentencing courts are instructed to “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.” Id. Meanwhile, R.C. 2929.11(B) states that felony

    sentences must be both “commensurate with and not demeaning to the

    seriousness of the offender’s conduct and its impact upon the victim” and

    consistent with sentences imposed in similar cases.




3
  Our finding that Snyder’s sentence on Count I is contrary to law does not render this entire assignment of
error moot. See State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, paragraph three of the syllabus (“An
appellate court may modify, remand, or vacate a sentence for an offense that is appealed by the defendant
and may not modify, remand, or vacate the entire multiple-offense sentence based upon an appealed error
in the sentence for a single offense.”).

                                                   -13-
Case No. 13-12-38


       {¶25} In accordance with these principles, the trial court must consider the

factors set forth under R.C. 2929.12(B), (C), (D), and (E) relating to the

seriousness of the offender’s conduct and the likelihood of the offender’s

recidivism. R.C. 2929.12(A). However, the trial court is not required to make

specific findings of its consideration of the factors. State v. Kincade, 3d Dist. No.

16-09-20, 2010-Ohio-1497, ¶ 8. This matter implicates the following provisions

of R.C. 2929.12(B), (C), and (E):

      (B) The sentencing court shall consider all of the following that
      apply regarding the offender, the offense, or the victim, and any
      other relevant factors, as indicating that the offender’s conduct is
      more serious than conduct normally constituting the offense:

      The physical or mental injury suffered by the victim of the offense
      due to the conduct of the offender was exacerbated because of the
      physical or mental condition or age of the victim.

      ***

      (6) The offender’s relationship with the victim facilitated the
      offense:

      (C) The sentencing court shall consider all of the following that
      apply regarding the offense, the offense, or the victim, and any other
      relevant factors, as indicating that the offender’s conduct is less
      serious than conduct normally constituting the offense:

      ***

      In committing the offense, the offender did not cause or expect to
      cause physical harm to any person or property.

      ***


                                       -14-
Case No. 13-12-38


          (E) The sentencing court shall consider all of the following that
          apply regarding the offender, and any other relevant factors, as
          factors indicating that the offender is not likely to commit future
          crimes:

          Prior to committing the offense, the offender had not been
          adjudicated a delinquent child.

          Prior to committing the offense, the offender had not been convicted
          of or pleaded guilty to a criminal offense.

          Prior to committing the offense, the offender had led a law abiding
          life for a significant number of years.

          {¶26} In performing its review of the statutory factors, the trial court found

    that Snyder’s offenses were more serious than other similar crimes. A review of

    the record supports this finding. Specifically, R.C. 2929.12(B)(6) is satisfied

    because Snyder’s status as the victim’s cousin and babysitter at the time of the

    incident provided the opportunity for him to photograph the victim.4 Further, the

    trial court properly considered the young age of the victim when sentencing

    Snyder. See, e.g., State v. Justice, 6th Dist. No. OT-01-042, 2002-Ohio-3146, ¶

    26 (noting that the victim’s young age supported the trial court’s imposition of a

    17-month sentence).

          {¶27} The trial court also found that Snyder presented a high risk to the

    community.      Although several of the statutory factors regarding recidivism
4
  The trial court also found that R.C. 2929.12(B)(1) applies based on the age of the victim and the
purported mental distress she suffered as a result. There is no evidence in the record to support the trial
court’s finding of mental distress, as discussed in our resolution of Snyder’s fourth assignment of error
below. Regardless of whether R.C. 2929.12(B)(1) applies, the trial court still properly relied on R.C.
2929.12(B)(6) and the child’s young age at the time of the incident, which can be properly considered when
sentencing criminal defendants.

                                                  -15-
Case No. 13-12-38


indicate that Snyder is unlikely to recidivate, the trial court was within its

discretion to consider “any other relevant factors” as to the likelihood that Snyder

would engage in this type of behavior again. R.C. 2929.12(E). The trial court

gave weight to the PSIR’s recommendation that Snyder be considered a “very

high risk” despite his low ORAS score. (PSIR, p. 17). Giving such weight to the

recommendation was proper and supports the trial court’s finding that Snyder was

likely to recidivate and presented a high risk to the community. See State v.

Daniels, 10th Dist. No. 97AP-06-830 (Feb. 24, 1998) (noting the “high potential

of recidivism among sex offenders whose crimes involve the exploitation of

young children”).

       {¶28} On appeal, Snyder complains that the professional override of the

ORAS score was inappropriate and claims that the trial court erred in considering

it. But, the record only includes the PSIR’s recommendation of a professional

override and not any forms or manuals that were used to develop the

recommendation.     Since the record produces no basis for finding that the

professional override was improper, we are unable to find fault in the trial court’s

reliance on it.

       {¶29} In light of the trial court’s extensive consideration of the required

statutory factors and the evidence supporting its findings regarding the

seriousness of Snyder’s offenses and his likelihood of recidivism, we find that


                                       -16-
Case No. 13-12-38


there is not clear and convincing evidence to disturb the trial court’s sentences on

Counts II and III. Further, we find that there is no evidence in the record to show

that the trial court improperly utilized Snyder’s ORAS score.

       {¶30} Accordingly, we overrule in part Snyder’s second assignment of

error and his fifth assignment of error in its entirety.

                            Assignment of Error No. III

       {¶31} In his third assignment of error, Snyder argues that the trial court

erred in precluding him from participating in shock incarceration or an intensive

program prison without stating its reasons for the preclusion. We disagree.

       {¶32} R.C.     5120.031     and    5120.032     establish   alternative   prison

arrangements for certain offenders. Under R.C. 5120.032(B)(2)(c), an offender

serving a prison term for a felony of the third, fourth, or fifth degree that is a sex

offense is ineligible for the intensive program prison. Moreover, if an offender is

ineligible for the intensive program prison, he is likewise ineligible for shock

incarceration. R.C. 5120.031(A)(4).

       {¶33} R.C. 2929.19(D) provides that “[i]f the [trial] court recommends or

disapproves placement [in shock treatment or the intensive program prison], it

shall make a finding that gives its reasons for its recommendation or

disapproval.” There is a split of authority regarding R.C. 2929.19(D)’s finding

requirement. The Fifth, Tenth, Eleventh, and Twelfth Districts have held that


                                         -17-
Case No. 13-12-38


R.C. 2929.19(D) is satisfied even though the trial court fails to explicitly state the

reasons for its disapproval of shock treatment or intensive program prison so long

as the record includes sufficient facts to support the trial court’s disapproval.

E.g., State v. Tucker, 12th Dist. No. 2011-04-067, 2012-Ohio-50, ¶ 25; State v.

Lowery, 11th Dist. No. CA 2007-T-0039, 2007-Ohio-6734, ¶ 16; State v.

Jackson, 5th Dist. Nos. 05 CA 46, 05 CA 47, 2006-Ohio-3994, ¶ 14-15; State v.

Sears, 10th Dist. No. 02AP-1343, 2003-Ohio-2696, ¶ 32. Conversely, the Second

District has rejected this view and has instead required that trial courts explicitly

provide their reasons for disapproval where the offender was convicted of a type

of felony that rendered him eligible for the alternative programs. See State v.

Blessing, 2d Dist. No. 2011 CA 56, 2013-Ohio-392, ¶ 48 (vacating trial court’s

disapproval of shock incarceration and intensive program prison where the

offender was convicted of third and fifth degree felonies and eligible for the

alternative programs, but the trial court did not list its reasons for the

disapproval); State v. Allender, 2d Dist. No. 24864, 2012-Ohio-2963, ¶ 22 (“[R.C.

2929.19(D)’s] requirement, imposed on the trial court, is not satisfied by an

appellate court finding in the record reasons that the trial court could have given,

or might have given, for disapproval.”). However, the Second District has not

required that trial courts give explicit reasons for their disapproval where the

offender has committed a type of felony that manifestly renders him ineligible for


                                        -18-
Case No. 13-12-38


    the alternative programs. E.g., State v. Lewis, 2d Dist. No. 2012-CA-31, 2013-

    Ohio-809, ¶ 19; State v. Barron, 2d Dist. Nos. 25059, 25074, 2012-Ohio-5787, ¶

    16; State v. Walz, 2d Dist. No. 23783, 2012-Ohio-4627, ¶ 26. According to the

    Second District, trial courts’ failure to give explicit reasons in this circumstance is

    “necessarily harmless error.” State v. DeWitt, 2d Dist. No. 24437, 2012-Ohio-

    635, ¶ 23.

           {¶34} Here, the trial court failed to explicitly state why it found that

    Snyder was not amenable to shock incarceration or intensive program prison. In

    addressing this failure, we need not resolve the foregoing split of authority

    because it does not rise to the level of reversible error under either view. While

    the trial court did not strictly comply with the dictates of R.C. 2929.19(D), the

    error was harmless.5 Snyder was convicted of felony sex offenses that plainly

    render him ineligible for alternative prison programs.                        In light of Snyder’s

    manifest ineligibility, the trial court’s failure to explicitly state its reasons for its

    disapproval of alternative prison arrangements does not require a reversal.

           {¶35} Accordingly, we overrule Snyder’s third assignment of error.




5
 The better practice is for the trial court to list its reasons for disapproval, regardless of the circumstances
giving rise to it.

                                                     -19-
Case No. 13-12-38


                                   Assignment of Error No. IV

           {¶36} In his fourth assignment of error, Snyder claims that the trial court

    erred in ordering that his sentences on Counts I and II be served consecutively.6

    We agree.

           {¶37} R.C. 2929.14(C) controls the imposition of consecutive sentences.

    It provides, in pertinent part, 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 finds any
          of the following:

          ***

           (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 the course of conduct adequately reflects the seriousness of the
           officer’s conduct.

           {¶38} Here, the trial court ordered that Snyder serve consecutive sentences

    based on its finding that his offenses caused great or unusual harm. However, a

    review of the record reveals no evidence to support such a finding. Indeed, the


6
  Our resolution of the first assignment of error and decision to vacate Snyder’s sentence on Count I does
not render this assignment of error moot. See State v. Redd, 8th Dist. No. 98064, 2012-Ohio-5417, ¶ 19
(finding that consecutive sentences were properly imposed even though the trial court’s sentence on one of
the offenses was vacated).

                                                  -20-
Case No. 13-12-38


record directly contradicts the finding.      The first victim impact statement,

completed by the victim’s mother, explicitly indicates that Snyder’s offenses did

not cause any psychological or physical effects. Further, the PSIR found that

“[t]here was no physical harm to [the victim] expected or caused.” (PSIR, p. 19).

       {¶39} This evidence indicating a lack of any physical or psychological

harm was not controverted at the sentencing hearing. No witnesses testified

regarding the purported harm experienced by the victim.          Compare State v.

Nesser, 5th Dist. No. 02 CA 103, 2005-Ohio-4313, ¶ 19 (finding that consecutive

sentences were properly imposed where the victim was three years old and the

mother of the victim testified at the sentencing hearing regarding the

psychological harm experienced by the victim). Further, the State offered no

evidence to support a finding of great harm except for its own characterizations of

the harm experienced by the victim and the victim’s family.                  These

characterizations are not sufficient here since they lack any support in the record.

See State v. Nagy, 8th Dist. No. 90400, 2008-Ohio-4703, ¶ 28 (“A prosecutor’s

statements are not testimony or evidence.”); State v. Bruce, 4th Dist. No.

02CA51, 2003-Ohio-4081, ¶ 20 (finding that the trial court erred in imposing

consecutive sentences on the basis that the victims suffered great or unusual harm

since “there [was] simply no evidence in the record” to support such a finding).

Due to the complete dearth of evidence in the record indicating the existence of


                                       -21-
Case No. 13-12-38


    physical or psychological harm to the victim, we find that the trial court erred in

    imposing consecutive sentences.7

            {¶40} Accordingly, we sustain Snyder’s fourth assignment of error.

                                      Assignment of Error No. VI

            {¶41} In his sixth assignment of error, Snyder contends that the State

    engaged in prosecutorial misconduct during the sentencing hearing by: (1)

    making unsubstantiated statements as to the contents of the lewd pictures of the

    victim and Snyder’s purported touching of the victim; (2) improperly referring to

    the victim’s behavior after the incident in which she fought with her mother

    during diaper changes and a nurse during a medical examination; and (3)

    indicating that the victim’s family suffered emotional distress from the incident.

    We disagree.

            {¶42} Snyder did not object to any of the above statements at the

    sentencing hearing. As such, he has waived all but plain error. State v. Twyford,

    94 Ohio St.3d 340, 355 (2002). To have plain error under Crim.R. 52(B), there

    must be an error that is an “obvious” defect in the proceedings and it must have

    affected “substantial rights.” State v. Barnes, 94 Ohio St.3d 21, 27 (2002). Plain

    error is to be used “with the utmost caution, under exceptional circumstances, and

    only to prevent a manifest miscarriage of justice.” Id.



7
    The other provisions of R.C. 2929.14(C) are likewise inapplicable in this matter.

                                                      -22-
Case No. 13-12-38


       {¶43} The test for prosecutorial misconduct is “whether [the prosecutor’s

improper remarks] prejudicially affected the substantial rights of the accused.”

State v. Lott, 51 Ohio St.3d 160, 165 (1990). As such, even if the prosecutor

makes an improper remark, it “can nevertheless fail to constitute reversible

error.” State v. Siefer, 3d Dist. No. 5-09-24, 2011-Ohio-1868, ¶ 37. In assessing

the existence of prosecutorial misconduct, we are mindful that “the touchstone of

this analysis is the fairness of the [proceeding], not the culpability of the

prosecutor.” Twyford at 355.

       {¶44} Here, Snyder challenges the following statements by the prosecutor

at the sentencing hearing:

      Each of the photos were [sic] focused directly on [the victim’s
      vagina] and, most disturbingly, one of the photos showed the
      victim’s vagina spread open. It’s difficult, your Honor, to imagine
      how that photo could have been taken unless [Snyder] had touched
      the victim.

      ***

      Now, with respect to seriousness factors for this Court to consider
      that are laid out in the Revised Code, one of those is the potential
      mental injury to the victim. Now that devastating impact was
      evident when during the SANE examination the victim attempted to
      cover her genitals prior to the exam. It was also evident with the fact
      that the victim fought with her mother in the days after this offense
      occurred when her mother would try to change the victim’s diaper.
      So you can see that was an obviously traumatic experience for the
      victim.

      ***


                                       -23-
Case No. 13-12-38


       I’d also like to note the damage done to the parents of the victim and
       the horror of seeing those pictures on that camera and realizing that
       their daughter was subjected to that. Tr., p. 3-5.

       {¶45} The prosecutor’s statements regarding the effect of the crime on the

victim’s family was appropriate since such evidence is allowed so long as the

family members do not recommend a certain sentence. See State v. Smith, 97

Ohio St.3d 367, 2002-Ohio-6659, ¶ 65 (“Victim-impact evidence is permitted

where it elicits the effect that the victim’s death had on family members.”); State

v. Condon, 152 Ohio App.3d 629, 2003-Ohio-2335, ¶ 118 (1st Dist.) (“The trial

court may consider relevant statements regarding the impact of the offense on a

victim’s family and friends.”). Snyder cites State v. Williams, 99 Ohio St.3d 493,

2003-Ohio-4396, in support of his position that trial courts cannot consider the

effect of a crime on the victim’s family when sentencing a defendant. There, the

prosecutor made improper remarks regarding the effect of the murder on the

victim’s mother to a jury during the penalty phase of a capital murder case. The

Court reasoned that since such remarks would have been inadmissible at trial,

they were consequently improperly used at the death penalty hearing. Id. at ¶

144.    Since this matter does not implicate a death penalty hearing, it is

distinguishable from Williams. Unlike the penalty phase of a capital murder case,

where the Rules of Evidence apply, State v. Sheppard, 84 Ohio St.3d 230, 293

(1998), “[i]t is well-established that the Rules of Evidence do not apply to


                                       -24-
Case No. 13-12-38


sentencing hearings,” State v. Jackson, 6th Dist. No. E-01-024, 2002-Ohio-2359,

¶ 38. See also Evid.R. 101(C)(3) (“These rules * * * do not apply in the

following situations: * * * sentencing * * *.”). Due to this critical distinction, we

are unable to find that Williams controls our analysis. Instead, we find no fault in

the prosecutor’s statements as to the impact of the crime on the victim’s family.

       {¶46} However, we do find fault in the prosecutor’s statements regarding

the victim’s “traumatic experience.” There is no evidence in the record to support

such a characterization. Rather, as stated above, the record directly contradicts

this characterization. Further, the record does not include any corroboration of

the prosecutor’s statements regarding the victim’s conduct during subsequent

diaper changes or the medical examination.

       {¶47} We also find some fault in the prosecutor’s allegation that Snyder

touched the victim inappropriately.     The allegation was solely based on the

contents of one of the pictures taken by Snyder. The only evidence in the record

regarding the picture’s contents was a police report including the statement of the

victim’s mother to police. Even if the State had offered testimony or other

evidence to corroborate the police statement, its allegation would still not be

immune from criticism. The mere fact that the victim’s vagina was spread apart

does not necessarily indicate that the victim was inappropriately touched while

Snyder was changing her diaper. Further, it is relevant to note that the State did


                                       -25-
Case No. 13-12-38


    not indict Snyder for a crime arising from any alleged touching and Snyder did

    not admit to any such touching.8

           {¶48} Although we find varying levels of faults in the above statements,

    we are nevertheless unable to find that the statements reach the level of plain

    error and prosecutorial misconduct. See State v. Combs, 62 Ohio St.3d 278, 283

    (1991) (finding that the prosecutor’s “gross speculation” was improper but that it

    did not rise to the level of plain error since the statement did not make a “crucial

    difference”). The record contains sufficient evidence, without reference to the

    victim’s harm or Snyder’s alleged touching, to support the trial court’s sentences

    on Counts II and III.          Although the trial court cursorily indicated that it

    considered the State’s oral statements at the sentencing hearing, it also indicated

    that it considered the entire record, the victim impact statements, and the PSIR.

    In light of the trial court’s consideration of the entire record, we cannot find that

    several sentences spoken by the prosecutor amount to prosecutorial misconduct

    that affected the outcome of Snyder’s sentence.

           {¶49} Accordingly, we overrule Snyder’s sixth assignment of error.




                                  Assignment of Error No. VII


8
  The State’s brief does not address or attempt to defend the propriety of the prosecutor’s allegation of
touching.

                                                 -26-
Case No. 13-12-38


       {¶50} In his seventh assignment of error, Snyder argues that the trial court

erred by failing to merge his convictions for Counts I and II for the purposes of

sentencing. Since Snyder raised this issue in his previous appeal, we find that res

judicata and law of the case doctrine bar this assignment of error.

       {¶51} In State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, the

Supreme Court of Ohio held that “[a]lthough the doctrine of res judicata does not

preclude review of a void sentence, res judicata still applies to other aspects of the

merits of a conviction, including * * * the lawful elements of the ensuing

sentence.” Id. at paragraph three of the syllabus; see also State v. Wilson, 129

Ohio St.3d 214, 2011-Ohio-2669, ¶ 15 (“[A] number of discretionary and

mandatory limitations may apply to narrow the scope of a particular resentencing

hearing.”). As a result, after a reviewing court remands for resentencing, “the

remainder of the sentence, which the defendant did not successfully challenge,

remains valid under the principles of res judicata.” (Internal quotation omitted.)

Fischer at ¶ 17. Similarly, under law of the case doctrine, which stems from res

judicata, State v. Evans, 9th Dist. No. 10CA0127-M, 2011-Ohio-4992, ¶ 12, “the

decision of a reviewing court in a case remains the law of the case on the legal

questions involved for all the subsequent proceedings in the case at both the trial

and reviewing levels.” (Internal quotation omitted.) Fischer at ¶ 33. Based on

these principles, courts have barred defendants from raising allied offenses of


                                        -27-
Case No. 13-12-38


similar import issues in subsequent appeals after having raised them in previous

appeals.   E.g., State v. Cottrill, 4th Dist. No. 11CA12, 2012-Ohio-1021, ¶ 11

(overruling the defendant’s allied offenses of similar import assignment of error

where the defendant had raised the issue in a previous appeal, which the court had

similarly rejected); Evans at ¶ 13 (same).

       {¶52} In Snyder I, Snyder argued that Counts I and II were allied offenses

of similar import. Although we remanded this matter for re-sentencing, we

explicitly rejected his argument regarding allied offenses of similar import and

overruled his assignment of error. Snyder I at ¶ 16. As such, our determination

in the previous appeal became the law of the case and res judicata bars Snyder

from raising the issue again in this new appeal.

       {¶53} Accordingly, we overrule Snyder’s seventh assignment of error.

                                No-Contact Order

       {¶54} Although not raised by the parties, we are compelled to address the

trial court’s imposition of a prison sentence and a no-contact order in its judgment

entry of re-sentence for Snyder’s convictions. Since Snyder did not object to the

imposition of these dual penalties, he has waived all but plain error.

       {¶55} “The current felony sentencing statutes * * * require a judge either

to impose a prison term or to impose community control sanctions.” (Emphasis

added.) State v. Baker, 152 Ohio App.3d 138, 2002-Ohio-7295, ¶ 12 (7th Dist.).


                                       -28-
Case No. 13-12-38


    As a result, “the sentencing statute[s] do[] not allow a trial court to impose both a

    prison sentence and community control for the same offense.” State v. Jacobs,

    189 Ohio App.3d 283, 2010-Ohio-4010, ¶ 5 (8th Dist.); see also State v. Hoy, 3d

    Dist. Nos. 14-04-13, 14-04-14, 2005-Ohio-1093, ¶ 18. Ohio courts, including

    this one, have recognized no-contact orders as community control sanctions.

    E.g., State v. Marcum, 4th Dist. Nos. 11CA8, 11CA10, 2012-Ohio-572, ¶ 12;

    State v. Hosler, 3d Dist. No. 16-09-21, 2010-Ohio-980, ¶ 17; State v. Simms, 12th

    Dist. No. CA2009-02-005, 2009-Ohio-5440, ¶ 25; State v. Loveless, 2d Dist. No.

    2002CA16, 2002-Ohio-5380, ¶ 18.                Since no-contact orders are considered

    community control sanctions, courts have vacated such orders where the

    defendant was convicted of a felony offense and the trial court also imposed a

    prison sentence. E.g., State v. Miller, 12th Dist. No. CA2010-12-336, 2011-Ohio-

    3909, ¶ 21-22.

           {¶56} Here, the trial court both imposed a prison term for Snyder’s

    convictions and an order that he not contact the “victims.”                      Based on the

    foregoing, the trial court had no authority under the felony sentencing statutes to

    impose these dual penalties.9 As such, following Miller’s guidance, we vacate

    the trial court’s no-contact order.




9
 Further, the reference to “victims” was erroneous since Snyder’s offenses only had one victim, the two-
year old child.

                                                 -29-
Case No. 13-12-38


       {¶57} Having found no error prejudicial to Snyder in the second

assignment of error in part and in the third, fifth, sixth, and seventh assignments

of error, but having found error prejudicial to Snyder in the first and fourth

assignments of error, as well as plain error in the trial court’s no-contact order, we

affirm in part and reverse in part the trial court’s judgment, vacate the trial court’s

no-contact order, vacate Snyder’s sentence on Count I, and remand this matter for

resentencing on Count I.

                                                        Judgment Affirmed in Part,
                                                             Reversed in Part and
                                                                 Cause Remanded

PRESTON, P.J., concurs.
SHAW, J., concurs in Judgment Only.
/jlr




                                        -30-
