[Cite as State v. Parker, 193 Ohio App.3d 506, 2011-Ohio-1418.]




               IN THE COURT OF APPEALS OF CLARK COUNTY, OHIO

The STATE OF OHIO,                                  :

        Appellee,                                   :     C.A. CASE NO. 10CA0074

vs.                                                 :     T.C. CASE NO. 10CR0039

PARKER,                                             :     (Criminal Appeal from
                                                           Common Pleas Court)
        Appellant.                        :

                                      . . . . . . . . .

                                          O P I N I O N

                   Rendered on the 25th day of March, 2011.

                                      . . . . . . . . .

Andrew R. Picek, Assistant Prosecuting Attorney, for appellee.

Richard E. Mayhall, for appellant.
                       . . . . . . . . .

        GRADY, Presiding Judge.

        {¶ 1} Defendant, Anthony Parker, appeals from his conviction

and sentence for sexual battery under R.C. 2907.03(A)(7), which

provides:

        {¶ 2} “No person shall engage in sexual conduct with another,

not the spouse of the offender, when * * * [t]he offender is a

teacher, administrator, coach, or other person in authority

employed by or serving in a school for which the state board of

education prescribes minimum standards pursuant to division (D)
                                                                          2

of section 3301.07 of the Revised Code, the other person is enrolled

in or attends that school, and the offender is not enrolled in and

does not attend that school.”

       {¶ 3} Unless the victim is less than 13 years of age, a

violation of R.C. 2907.03(A) is a felony of the third degree, R.C.

2907.03(B), and it is punishable by a prison term of one, two,

three, four, or five years.

       {¶ 4} In   November   2009,   Parker,   who   was   a   teacher   at

Northeastern High School in Clark County, began to sexually seduce

one of his students, a 16-year-old female.

       {¶ 5} Instant messaging chats between Parker and his victim

recovered from Parker’s computer demonstrate that over a period

of several months Parker emotionally groomed and manipulated the

victim in order to engage in sexual activity with her.           Although

the victim was apprehensive about engaging in sexual conduct,

Parker used promises of commitment to overcome her reluctance.

Parker was well aware of the wrongfulness of his conduct, telling

the victim: “By the way, you know I can go to prison if we have

sex.    But damn, it would be worth it.”

       {¶ 6} On January 1 and 9, 2010, Parker met the victim in the

parking lot of the Upper Valley Mall in Springfield, and from there

Parker drove the victim to a motel in Dayton, where on both

occasions Parker inserted his finger in the victim’s vagina and
                                                                  3

performed cunnilingus on her.   The victim firmly believed that she

and Parker were in love and would eventually be together, even if

he went to prison.   When police interviewed Parker on January 11,

2010, Parker immediately confessed to engaging in sexual conduct

with the victim on two separate occasions.

     {¶ 7} Parker was indicted on four counts of sexual battery in

violation of R.C. 2907.03(A)(7). Parker surrendered his Ohio

teaching license and terminated all contact with the victim.

Parker entered guilty pleas to all four charges and was sentenced

to consecutive prison terms totaling 15 years.     The court also

classified Parker a Tier III sex offender.

     {¶ 8} Parker appealed to this court.      He challenges his

sentence on multiple grounds.

     First Assignment of Error

     {¶ 9} “The consecutive sentences imposed on appellant are

contrary to law.”

     {¶ 10} The requirement in R.C. 2929.14(E)(4) that the trial

court make certain findings before imposing consecutive sentences

was found unconstitutional and severed from that statute in State

v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856.    Parker argues that

Foster’s holding was effectively overruled by Oregon v. Ice (2009),

555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517, and that the

judicial-findings requirement of R.C. 2929.14(E)(4) has therefore
                                                                  4

been revived.

     {¶ 11} In State v. Hodge, ___ Ohio St.3d ___, 2010-Ohio-6320,

the Ohio Supreme Court held that Oregon v. Ice does not revive R.C.

2929.14(E)(4).   Id. at paragraph two of the syllabus.    See also

State v. Ferguson, Montgomery App. No. 23857, 2011-Ohio-752.

     {¶ 12} Parker’s first assignment of error is overruled.

     Second Assignment of Error

     {¶ 13} “The sentence of the trial court is contrary to law

because it fails to reflect any consideration of the purposes and

principles of felony sentencing contained in R.C. 2929.11 or the

seriousness and recidivism factors of R.C. 2929.12.”

     Third Assignment of Error

     {¶ 14} “The trial court erred and abused its discretion when

it imposed more-than-minimum, maximum and consecutive sentences.”

     {¶ 15} In his second assignment of error, Parker argues that

the trial court’s sentence is contrary to law because the court

failed to consider the principles and purposes of felony sentencing

in R.C. 2929.11 and the seriousness and recidivism factors in R.C.

2929.12.   In his third assignment of error, Parker argues that,

because he is a first-time offender, the trial court abused its

discretion in imposing more than minimum sentences, instead

imposing maximum sentences and consecutive sentences.     In other

words, the trial court abused its discretion in imposing an overly
                                                                         5

harsh 15-year aggregate sentence that is not supported by the

record.

     {¶ 16} In   State   v.   Barker,   Montgomery   App.   No.    22779,

2009-Ohio-3511, at ¶36-37, we wrote:

     {¶ 17} “ ‘The trial court has full discretion to impose any

sentence within the authorized statutory range, and the court is

not required to make any findings or give its reasons for imposing

maximum[,] consecutive, or more than minimum sentences.           State v.

Foster, 109 Ohio St.3d 1, 845 N.E.2d 470, 2006-Ohio-856, at

paragraph 7 of the syllabus.        Nevertheless, in exercising its

discretion the trial court must consider the statutory policies

that apply to every felony offense, including those set out in R.C.

2929.11 and 2929.12. State v. Mathis, 109 Ohio St.3d 54, 846 11

N.E.2d 1, 2006-Ohio-855, at ¶37.

     {¶ 18} “ ‘When reviewing felony sentences, an appellate court

must first determine whether the sentencing court complied with

all applicable rules and statutes in imposing the sentence,

including R.C. 2929.11 and 2929.12, in order to find whether the

sentence is contrary to law.      State v. Kalish, 120 Ohio St.3d 23,

2008-Ohio-4912, 896 N.E.2d 124.         If the sentence is not clearly

and convincingly contrary to law, the trial court's decision in

imposing the term of imprisonment must be reviewed under an abuse

of discretion standard. Id.’ ”
                                                                        6

      {¶ 19} Parker contends that the trial court failed to apply the

principles and purposes of felony sentencing in R.C. 2929.11 and

the seriousness and recidivism factors in R.C. 2929.12.         In State

v. Miller, Clark App. No. 09CA28, 2010-Ohio-2138, at ¶43, we wrote:

      {¶ 20} “Although the trial court did not specifically cite

either statute during the sentencing hearing, its judgment entry

stated that it had ‘considered the record, oral statements, any

victim impact statement and presentence report prepared, as well

as the principles and purposes of sentencing under Ohio Revised

Code Section 2929.11, and [had] balanced the seriousness and

recidivism factors [under] Ohio Revised Code Section 2929.12.’

Because a trial court speaks only through its journal entries,

Miller’s sentence is not contrary to law merely because the trial

court failed to cite either statute during the sentencing hearing.

State v. Cave, Clark App. No. 09-CA-6, 2010-Ohio-1237, ¶10.

      {¶ 21} “ ‘Furthermore, even if there is no specific mention of

those statutes in the record, “it is presumed that the trial court

gave proper consideration to those statutes.” ’           Id., quoting

Kalish, supra, at n.4.        We note too that Miller’s five-year

sentence is within the statutory range for a third-degree felony.

See   R.C.   2929.14(A)(3).     Therefore,   we   have   no   basis   for

concluding that the sentence is contrary to law.”

      {¶ 22} In its journalized judgment entry of conviction, the
                                                                        7

trial court indicated that it had considered the record, oral

statements by counsel and defendant, the presentence investigation

report, the principles and purposes of felony sentencing, R.C.

2929.11, and the seriousness and recidivism factors in R.C.

2929.12.     The court also informed Parker during sentencing about

postrelease-control requirements.       The court complied with the

applicable     rules   and   statutes   in   imposing   its    sentence.

Furthermore, the two-, three-, and five-year sentences the trial

court imposed on the various counts of sexual battery, while the

maximum sentence on some counts, are all nevertheless within the

authorized range of available punishments for felonies of the third

degree.     R.C. 2907.03(B); 2929.14(A)(3).     The court ordered all

of the prison terms served consecutively, for a total sentence of

15 years.    We have no basis for concluding that Parker’s sentence

is clearly and convincingly contrary to law.     Kalish.      The further

issue is whether the sentences the court imposed are an abuse of

discretion.     Id.    We will consider that issue together with

Parker’s third assignment of error.

     {¶ 23} In his third assignment of error, Parker argues that his

15-year sentence is unduly harsh and not supported by the record

and therefore constitutes an abuse of the trial court’s discretion.

Parker points to a number of different facts and circumstances that

demonstrate that his offenses are not aggravated or a more serious
                                                                     8

form of the offense concerned.    Parker asserts that had he not been

a teacher at the same school the victim attended, his conduct with

this 16-year-old victim, while perhaps morally repugnant, would

not constitute a criminal offense.      Parker argues that when all

of the facts and circumstances of the case are viewed in their

totality, the record does not justify the 15-year sentence the

trial court imposed, which was unreasonable and an abuse of

discretion.

     {¶ 24} “‘Abuse of discretion’ has been defined as an attitude

that is unreasonable, arbitrary or unconscionable. Huffman v. Hair

Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87, 19 OBR 123, 126, 482

N.E.2d 1248, 1252. It is to be expected that most instances of abuse

of   discretion   will   result   in   decisions   that   are   simply

unreasonable, rather than decisions that are unconscionable or

arbitrary.

     {¶ 25} “A decision is unreasonable if there is no sound

reasoning process that would support that decision.        It is not

enough that the reviewing court, were it deciding the issue de novo,

would not have found that reasoning process to be persuasive,

perhaps in view of countervailing reasoning processes that would

support a contrary result.”       AAAA Ents., Inc. v. River Place

Community Redevelopment (1990), 50 Ohio St.3d 157, 161.

     {¶ 26} R.C. 2929.11 provides:
                                                                       9

     {¶ 27} “(A) A court that sentences an offender for a felony

shall be guided by the overriding purposes of felony sentencing.

The overriding purposes of felony sentencing are to protect the

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

the offender. 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.

     {¶ 28} “(B) A sentence imposed for a felony shall be reasonably

calculated to achieve the two overriding purposes of felony

sentencing set 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.”

     {¶ 29} During the sentencing hearing the prosecutor told the

trial court that his conversations with the victim reveal that she

is in love with Parker and believes that, regardless of the sentence

imposed, they will wait for each other, so that after Parker serves

his sentence they can be together.        The prosecutor argued that in

order to protect the victim from any further emotional harm at the

hands of Parker, give her closure, and allow her to recover from

this and move on with her life, the court’s sentence has to “crush
                                                                     10

that victim’s hope.”       Specifically, the prosecutor stated:

       {¶ 30} “You could give a short prison sentence in this case,

and you could fuel her fantasy that they are going to be together.

       {¶ 31} “A prison sentence of two to three years gives her some

hope that, ‘Hey, look I’ll be eighteen, nineteen.        I can be with

him.    We can be together.    He loves me.   He’s going to be with me.

He’s told me all those things.       He’s going to wait for me.’

       {¶ 32} “And she won’t get the closure, the emotional closure

to get on with her life.    You can see a short prison sentence having

negative effects on her future, healthy relationships.

       {¶ 33} “You can see a situation where she would be like, she

wouldn’t date other boys her age, not go to prom, not engage in

normal teenage dating patterns because she is Parker’s girl,

because she’s waiting for Parker and that they’re going to be

together.

       {¶ 34} “You can also see where a short prison sentence would

cause her to make significant life-changing decisions based on her

belief or her fantasy that they are going to be together.

       {¶ 35} “An example would be like, ‘I’m not going to go to an

out-of-state college cause I need to be close to the prison or close

to Ohio so I can be with him.       Hey, I’m not going to do this or

that in my life because I’m going to be with Parker.’

       {¶ 36} “This may sound harsh but part of protecting the victim,
                                                                  11

and part of protecting the community at large, is that your sentence

has to crush that victim’s hope.   Your sentence has to crush that

fantasy that they are going to be together so she can have some

closure in her life and she can move on.”

     {¶ 37} At Parker’s sentencing the trial court addressed the

victim, who had written a letter to the court on behalf of Parker,

reaffirming that she is in love with Parker, that she was a willing

participant in this sexual activity, and that Parker did not compel

her to do anything she didn’t want to do.       The court told the

victim:

     {¶ 38} “Everything that you wrote, I truly believe that it came

from your heart and that you feel the way you feel about the

defendant and about the situation; but what I would hope that you

understand through this, this kind of ties into what the prosecutor

was saying about the emotional and psychological manipulation and

harm done here is that when you’re sixteen and seventeen years old

– And again, I think you’re very mature.

     {¶ 39} “I’m not saying that you are not mature and not thinking

for yourself, but when you’re young and you’re in high school and

you see somebody that’s an adult that’s showing interest in you

and you’re looking at this adult and they are in a place where you

are eventually striving to be, in other words, you’re striving to

become an adult.
                                                                         12

     {¶ 40} “You want to have a job to be able to make money and have

a car and have freedoms to do certain things, and you see this person

taking an interest in you, it’s only natural that you’re going to

be sort of taken in by that.

     {¶ 41} “But I think as time goes by, in the next three, five,

ten years, fifteen years, you’re going to look back and say, you

know – and this is no disrespect to the defendant; I don’t mean

it that way – But you’re going to look back and say, ‘This guy was

really nothing special or nothing unique he just happened to be

in a situation.

     {¶ 42} “ ‘He was an adult and he was showing me attention, and

I was young and I was infatuated by that.’           I think as time goes

by you’re going to see that there was nothing really unique or

special about him to you.

     {¶ 43} “*       *     *

     {¶ 44} “As tough as this is for you to hear, it seems to me that

he was just saying all the things to you that you wanted to hear

so that he could get what he wanted, but he didn’t mean those things

and that he used you and manipulated you.

     {¶ 45} “So with that kind of backdrop and as a perspective, the

Ohio General Assembly has made these offense felonies of the third

degree, which are very serious offenses.

     {¶ 46} “There   is   no   language   in   the   statute   or   nothing
                                                                  13

mitigating in the statute that says, well, if the student is in

love with the teacher, or if the student feels like the teacher

didn’t make her do anything she didn’t want to do, then it should

be less serious.

     {¶ 47} “No.   The whole reason for the crime is that the adult

is in a position to know that he cannot manipulate a child into

engaging in this kind of behavior.       That’s why it’s a crime.

Because he’s an adult and he knows.

     {¶ 48}   “*     *     *

     {¶ 49} “And that’s exactly why the legislature has had to enact

a criminal statute to protect these young people because they don’t

have the perspective to protect themselves.”

     {¶ 50} In imposing sentence on the four counts of sexual

battery, the trial court imposed maximum five-year prison terms

on two counts, a three-year term on one count, and a two-year term

on the other count, and ran all of the prison terms consecutively

for a total sentence of 15 years.      The trial court stated its

reasons as follows:

     {¶ 51} “The legislature has directed the Court to consider

punishment of the offender and protection of the community and when

there is a minor involved – Not that I don’t take protection of

the community serious in all cases – but when there is a minor

involved my responsibility in that area, I believe, is heightened.
                                                                   14

     {¶ 52} “The prosecutor is exactly right; I don’t want there to

be any glimmer of hope after today that somebody is going to wait

for somebody.     I want there to be finality today.    I want it to

be over with.     I want the harm to stop.

     {¶ 53} “I don’t want Mr. Parker to harm any other children, and

I don’t want any other teachers in this community to think that

they can engage in this behavior and walk away with a light

sentence.

     {¶ 54} “I agree with the prosecutor; I think the emotional and

psychological conduct here is even greater than the physical acts.

While the physical acts are horrific, I do think the psychological

and emotional aspect of the crime is even greater.”

     {¶ 55} We begin our analysis by emphasizing that we in no way

condone or wish to minimize the seriousness of Parker’s conduct

in this case.    To be sure, Parker’s conduct constitutes a serious

criminal offense.     As a teacher, Parker held a position of trust

and authority over his students, and he misused that position of

trust and authority to gain access to a vulnerable adolescent

victim.     The vulnerability that adolescents and children have when

taken advantage of by adults who are in a position of trust and

authority over them is plainly the reason why the General Assembly

saw fit to make this particular offense a serious one, a felony

of the third degree.
                                                                  15

     {¶ 56} Furthermore, an examination of the instant-messaging

chats between Parker and the victim, which authorities obtained

when they examined Parker’s computer, reveals that over a period

of months Parker emotionally groomed and manipulated this victim,

seducing her so she would fall in love with him and believe that

someday they would be together, in order to get the victim to submit

to his emotional control and prepare her for what Parker wanted

to do, engage in sexual activity with her.   Additionally, we note

that Parker was well aware of the wrongfulness of his conduct with

this victim, telling her at one point: “By the way, you know I can

go to prison if we have sex.    But damn, it would be worth it.”

     {¶ 57} Parker’s conduct reasonably supports imposition of a

sentence within the upper ranges of R.C. 2929.14(A)(3), which

authorizes sentences of one, two, three, four, or five years for

third-degree felony offenses.    However, and with that said, the

principles and purposes of felony sentencing in R.C. 2929.11

nevertheless require the trial court in imposing its sentence to

also consider, among other things, rehabilitating the offender.

Furthermore, a sentence imposed for a felony shall be consistent

with sentences imposed for similar crimes committed by similar

offenders.   Id.

     {¶ 58} In his fourth assignment of error, Parker argues that

his 15-year sentence is contrary to law because it is inconsistent
                                                                 16

with sentences imposed for similar crimes committed by similar

offenders.   In support of that claim, Parker has included in his

appellate brief statistics that demonstrate that in the only case

similar to this one in Clark County in recent times, State v.

Mattern, Clark C.P. No. 00CR554, the defendant teacher received

a three-year sentence after pleading guilty to three counts of

sexual battery.    Parker further argues that his internet research

discloses that in 30 cases similar to this one across Ohio since

2007, the average sentence length is 2.7 years, with only two cases

involving sentences that exceed five years.     One, an eight-year

sentence, involved 16 counts of sexual battery.     The other one,

a nine-year sentence, involved three separate victims.    Parker’s

point, of course, is that his 15-year sentence is grossly

disproportionate to sentences imposed upon similar offenders for

similar crimes.

     {¶ 59} In deciding this appeal, we cannot consider Parker’s

statistics because they were not presented to the trial court and

are not a part of the record in this appeal.      State v. Ishmail

(1978), 54 Ohio St.2d 402.   Nevertheless, we are mindful that the

Ohio Supreme Court has recognized that the General Assembly’s

intent in enacting the sentencing laws in Senate Bill 2 was to

introduce consistency and proportionality into felony sentencing.

Foster at ¶34.    Furthermore, both the Ohio Supreme Court and this
                                                                  17

court have stated that consecutive sentences should be reserved

for the worst offenses and offenders.      State v. Comer, 99 Ohio

St.3d 463, 2003-Ohio-4165, at ¶21; State v. Myers, 159 Ohio App.3d

584, 2005-Ohio-447.   This case simply does not involve the worst

form of the offense or the worst offender.

     {¶ 60} Parker is a 36-year-old first-time offender with no

prior criminal record of any kind.   This case involves two separate

incidents of consensual sexual activity with but one victim, who

was of the age of consent at the time these offenses took place.

There was no force, violence, physical harm, use of drugs or alcohol

to impair judgment, and no exploitation of any mental or physical

impairment.    Although the victim’s stepmother claimed in her

victim-impact statement that the victim suffers from emotional and

psychological problems as a result of Parker’s conduct, there was

no evidence in that regard.

     {¶ 61} We additionally note that prior to engaging in this

conduct Parker had always led a law-abiding life, earning awards

as an outstanding teacher.       Parker is married and has two

special-needs children.     When questioned by police about his

conduct with this victim, Parker immediately confessed to engaging

in sexual activity, digital penetration and cunnilingus, with this

victim on two separate occasions, and took full responsibility for

his actions.   Parker surrendered his teaching license and ceased
                                                                 18

further contact with this victim, making recidivism unlikely, and

expressed genuine remorse for his conduct at sentencing.

     {¶ 62} The trial court’s own statement as to its reasons for

the sentence it imposed discloses that the court imposed a 15-year

sentence to eliminate any hope this victim had that she might wait

for Parker while he served his sentence and after his release have

a future with him.      That is not a proper consideration or

legitimate basis for the court’s lengthy sentence in view of the

fact that the victim was already of the legal age of consent at

the time of this offense, and Parker had surrendered his Ohio

teaching license after being charged.      Because Parker was no

longer a teacher, any future relationship he might have with this

victim would not be illegal.

     {¶ 63} By sentencing this 36-year-old first-time offender to

15 years in prison, the trial court failed to reasonably consider

the concept of rehabilitation.     State v. Culp (May 25, 2001),

Champaign App. No. 2000CA17.   Compared to this 15-year sentence,

we note that many types of homicide offenses carry a lesser maximum

penalty and that a murder conviction would result in an indefinite

sentence of only 15 years to life.       Simply put, there is no

justification in this record for consecutive sentences on all of

the counts, resulting in a 15-year sentence that is unreasonable

and an abuse of the trial court’s discretion.   Parker’s second and
                                                                  19

third assignments of error are sustained.

     Fourth Assignment of Error

     {¶ 64} “Because the sentence imposed by the trial court is

disproportionate and inconsistent, it is contrary to law and

constitutes plain error.”

     {¶ 65} Parker argues that because his 15-year sentence is

grossly disproportionate to and inconsistent with the sentences

imposed on similar offenders for similar crimes, it violates R.C.

2929.11(B) and is contrary to law.

     {¶ 66} With respect to Parker's contention that the trial court

violated R.C. 2929.11(B) by failing to impose a sentence that was

consistent with sentences imposed for similar crimes committed by

similar offenders, we addressed that argument in State v. Miller,

Clark App. No. 09CA28, 2010-Ohio-2138.

     {¶ 67} We have addressed the issue of sentencing consistency

before, recognizing that trial courts are limited in their ability

to address the consistency mandate, and appellate courts are

hampered in their review of this issue, by the lack of a reliable

body of data upon which they can rely. State v. York, Champaign

App. No.2009-CA-03, 2009-Ohio-6263, ¶13. Although a defendant

cannot be expected to produce his or her own database to demonstrate

the alleged inconsistency, the issue must at least be raised in

the trial court and some evidence, however minimal, must be
                                                                    20

presented to the trial court to provide a starting point for

analysis and to preserve the issue for appeal.

     {¶ 68} When the consistency issue is not raised in the trial

court, a defendant cannot argue on appeal that the sentence imposed

by the trial court was inconsistent with those imposed on similar

offenders. Id. In the Miller case, the defendant failed to raise

the consistency issue at sentencing and did not present any

evidence below about similar offenders and their sentences. As a

result, he forfeited his ability to raise the issue on appeal. Id.;

see also State v. Cantrell, Champaign App. No. 2006 CA 35,

2007-Ohio-6585, ¶10-14; Rollins, supra, 2009-Ohio-899, at ¶16.”

     {¶ 69} A review of the sentencing hearing in this case reveals

that Parker did not raise the consistency issue and did not present

any evidence about similar offenders and their sentences. As a

result, Parker has forfeited his ability to raise the consistency

issue on direct appeal. Miller.

     {¶ 70} Parker’s fourth assignment of error is overruled.

     Fifth Assignment of Error

     {¶ 71} “Because   the   trial   court’s   sentence   imposes   an

unnecessary burden on government resources it is contrary to law.”

     {¶ 72} Parker relies on R.C. 2929.13(A), which provides that,

except for certain offenses not involved here, and absent a

mandated sentence, “a court that imposes a sentence upon an
                                                                        21

offender for a felony may impose any sanction or combination of

sanctions on the offender that are provided in sections 2929.14

to 2929.18 of the Revised Code.      The sentence shall not impose an

unnecessary burden on state or local government resources.”

(Emphasis added.)

     {¶ 73} Parker argues that the aggregate 15-year sentence the

court imposed on him imposes an unnecessary burden on governmental

resources.    We are not required to resolve that issue, however.

Having sustained Parker’s second and third assignments of error,

we will modify the trial court’s sentence to impose concurrent

instead of consecutive terms.          That resolution renders this

assignment of error moot, and we exercise our discretion to decline

to decide the error assigned.        App.R. 12(A)(1)(c).

     {¶ 74} Parker’s fifth assignment of error is overruled.

     Sixth Assignment of Error

     {¶ 75} “Because   the   trial   court   improperly    employed    the

‘sentencing   package’   doctrine,     the   appellant’s    sentence    is

contrary to law.”

     {¶ 76} Parker argues that in sentencing him the trial court

improperly employed the “sentencing package” doctrine to achieve

a particular overall lengthy sentence which, in effect, considers

the multiple offense as one group in order to impose an omnibus

sentence for the group of offenses to satisfy the purposes and
                                                                        22

principles of felony sentencing in R.C. 2929.11.        The Ohio Supreme

Court, however, rejected the doctrine in State v. Saxon, 109 Ohio

St.3d 176, 2006-Ohio-1245. The state responds that Parker’s

sentencing-package argument is misplaced because that doctrine is

a rule that applies only to appellate review of sentences imposed

for multiple offenses and not to the trial court’s actual

imposition of those sentences.            A review of the Ohio Supreme

Court’s decision in State v. Saxon, paragraph two of the syllabus,

readily reveals that there is no merit in the state’s contention.

     {¶ 77} In    State   v.   Bradley,   Champaign   App.   No.   06CA31,

2008-Ohio-720, at ¶19-32, we discussed the sentencing-package

doctrine as follows:

     {¶ 78} “Bradley argues that, in addition, the trial court's

rationale for imposing harsher sentences, to achieve a particular

aggregate        sentence,     violates    the   prohibition       against

sentence-packaging announced in State v. Saxon, 109 Ohio St.3d 176,

2006-Ohio-1245. We approved the trial court's rationale in our

decision of December 7, 2007. However, on reconsideration, we agree

with Bradley.

     {¶ 79} “The defendant in Saxon was convicted on his negotiated

pleas of guilty of two counts of gross sexual imposition, R.C.

2907.05, one a fourth degree felony and the other a felony of the

third degree because of the age of the victim. The trial court
                                                                 23

imposed a sentence of four years on each count, to be served

concurrently. On appeal, the defendant challenged the sentence for

the fourth degree felony. The appellate court held that the trial

court erred, because the maximum sentence for a fourth degree

felony is eighteen months. R.C. 2929.14(A)(4). The court of appeals

then vacated the sentences imposed for both the third and fourth

degree felonies and remanded the case for resentencing.

     {¶ 80} “The state appealed, arguing that the court of appeals

erred when it also vacated the four-year sentence for the third

degree felony, which the trial court is authorized by R.C.

2929.14(A)(3) to impose. The Supreme Court agreed, and held:

     {¶ 81} “‘1. A sentence is the sanction or combination of

sanctions imposed for each separate, individual offense.

     {¶ 82} “‘2.   The   sentencing-package   doctrine    has   no

applicability to Ohio sentencing laws: the sentencing court may

not employ the doctrine when sentencing a defendant and appellate

courts may not utilize the doctrine when reviewing a sentence or

sentences.

     {¶ 83} “‘3. An appellate court may modify, remand, or vacate

only 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.’ Id., Syllabus by the Court.
                                                                    24

     {¶ 84} “Writing for the court in Saxon, Justice O'Connor

explained that the ‘sentencing package’ doctrine is employed in

federal courts and is a product of the Federal Sentencing

Guidelines, which require federal courts to consider the sanctions

imposed on multiple offenses as the components of a single,

comprehensive sentencing plan. Therefore, ‘an error within the

sentencing package as a whole, even if only on one of multiple

offenses, may require modification or vacation of the entire

sentencing package due to the interdependency of the sentences for

each offense.’ Id., at ¶ 6. For that purpose, a federal appellate

court has the authority to vacate all sentences, even if only one

is reversed on appeal. Id., citing § 2106, Title 28, U.S. Code.

     {¶ 85} “In contrast, and with respect to the particular error

the court of appeals in Saxon committed, R.C. 2953.08(G)(2)

authorizes Ohio's courts of appeals to ‘increase, reduce, or

otherwise modify a [felony] sentence that is appealed under this

section,’ or to ‘vacate the sentence and remand the matter to the

sentencing court for resentencing’ if the sentence is contrary to

law. Limiting the court's authority in that respect to the

particular   sentence   tainted   by   error   corresponds   to   R.C.

2929.14(A)(1)-(5), which sets out the range of available terms

‘(f)or a felony’ of each degree concerned. ‘The statute makes no

provision for grouping offenses together and imposing a single,
                                                                25

“lump” sentence for multiple felonies.’ Saxon, ¶8. (Emphasis

supplied). The Saxon court further stated:

     {¶ 86} “‘Although imposition of concurrent sentences in Ohio

may appear to involve a “lump” sentence approach, the opposite is

actually true. Instead of considering multiple offenses as a whole

and imposing one, overarching sentence to encompass the entirety

of the offenses as in the federal sentencing regime, a judge

sentencing a defendant pursuant to Ohio law must consider each

offense individually and impose a separate sentence for each

offense. See R.C. 2929.11 through 2929.19. Only after the judge

has imposed a separate prison term for each offense may the judge

then consider in his discretion whether the offender should serve

those terms concurrently or consecutively. See State v. Foster,

109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, paragraph seven

of the syllabus, ¶100, 102, 105; R.C. 2929.12(A); State v. Mathis,

109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, paragraph three

of the syllabus. Under the Ohio sentencing statutes, the judge

lacks the authority to consider the offenses as a group and to

impose only an omnibus sentence for the group of offenses.

     {¶ 87} “‘ This court has never adopted the sentencing-package

doctrine, and we decline to do so now. The sentencing-package

doctrine has no applicability to Ohio sentencing laws: the

sentencing court may not employ the doctrine when sentencing a
                                                                     26

defendant, and appellate courts may not utilize the doctrine when

reviewing a sentence or sentences. (Emphasis supplied.)’ * * *

     {¶ 88} “‘Because the sentencing judge must consider each

individual offense, the logical conclusion is that a “sentence”

is the sanction or combination of sanctions imposed for each

offense. Adopting the sentencing-package doctrine ignores the

critical differences between the Ohio and federal sentencing

schemes and implies that sentencing judges must disregard the law

and focus on the entire array of offenses when imposing sentence.

Ohio law has no mechanism for such an approach. Because Ohio does

not “bundle” sentences, nothing is “unbundled” when one of several

sentences is reversed on appeal.’

     {¶ 89} “Justice   O'Connor   further   pointed   out   that   R.C.

2929.01(F)(F) defines a sentence as ‘the sanction or combination

of sanctions imposed by the sentencing court on an offender who

is convicted of or pleads guilty to an offense,’ and that the

‘combination’ to which that section refers are those sanctions

imposed on a single offense, such as a fine and incarceration.

Justice Pfeifer filed a dissenting opinion, and viewed R.C.

2929.01(F)(F) as defining a sentence to mean the entire combination

of sanctions imposed on an offender.”

     {¶ 90} Parker argues that the trial court’s own statements at

sentencing demonstrate that it employed the sentencing-package
                                                                  27

doctrine, that is, the court considered Parker’s multiple offenses

as a single group in order to impose a particular overall and more

lengthy sentence for the group of offenses in order to achieve a

particular purpose.   We agree.

     {¶ 91} At the sentencing hearing, the prosecutor told the trial

court that he had talked to the victim and that she had said that

she is in love with Parker and believes that, regardless of the

sentence imposed, they will each wait for each other so that when

the sentence is completed they can be together.     The prosecutor

argued that in order to protect this victim from further emotional

harm, give her closure, and allow her to recover and move on with

her life, the court’s sentence “has to crush that fantasy that they

are going to be together.”   The prosecutor also stated:

     {¶ 92} “I’d ask you to look at his actions as a whole, the

emotional damage that he’s done, and I’d ask you to pass a sentence

that protects the victim, that protects his family, protects the

community and punishes him for it.”

     {¶ 93} In imposing its sentence in this case, the trial court

stated:

     {¶ 94} “The prosecutor is exactly right; I don’t want there to

be any glimmer of hope after today that somebody is going to wait

for somebody.   I want there to be finality today.    I want it to

be over with.   I want the harm to stop.
                                                                  28

     {¶ 95} “I don’t want Mr. Parker to harm any other children, and

I don’t want any other teachers in this community to think that

they can engage in this behavior and walk away with a light

sentence.”

     {¶ 96} We agree that the trial court’s own statements at

sentencing demonstrate that it was motivated by a desire to achieve

a particular purpose and ensure that this victim would not wait

for Parker to complete his sentence so they could have a future

together, and to that end the court sought to impose a particular

overall and more lengthy sentence to cover the group of offenses

to satisfy the purposes and principles of sentencing.   In so doing,

the trial court applied the sentencing-package doctrine and

therefore erred.   Any doubt in that regard is resolved by the fact

that the court imposed three different terms for the same offenses,

involving much the same conduct.    The reason for doing that was

to achieve the result that Saxon forbids.

     {¶ 97} Parker’s sixth assignment of error is sustained.

     Seventh Assignment of Error

     {¶ 98} “Because all four counts of sexual battery are allied

offenses of similar import, the trial court erred in imposing

sentences, let alone consecutive sentences, on all four counts of

the indictment.”

     {¶ 99} Parker argues that the trial court erred by failing to
                                                                       29

merge all four counts of sexual battery for purposes of sentencing

because they are allied offenses of similar import.

     {¶ 100}    R.C.    2941.25 states:

     {¶ 101}    “(A) Where the same conduct by defendant can be

construed to constitute two or more allied offenses of similar

import, the indictment or information may contain counts for all

such offenses, but the defendant may be convicted of only one.

     {¶ 102}    “(B) Where the defendant’s conduct constitutes two

or more offenses of dissimilar import, or where his conduct results

in two or more offenses of the same or similar kind committed

separately or with a separate animus as to each, the indictment

or information may contain counts for all such offenses, and the

defendant may be convicted of all of them.”

     {¶ 103}    In     its   most   recent   pronouncement   on    allied

offenses, the Ohio Supreme Court in State v. Johnson, ___ Ohio St.3d

___, 2010-Ohio-6314, held that when determining whether two

offenses are allied offenses of similar import subject to merger

under R.C. 2941.25, the conduct of the accused must be considered.

Id. at syllabus.      The Supreme Court further stated:

     {¶ 104}    “In    determining     whether   offenses    are   allied

offenses of similar import under R.C. 2941.25(A), the question is

whether it is possible to commit one offense and commit the other

with the same conduct, not whether it is possible to commit one
                                                                           30

without committing the other. Blankenship, 38 Ohio St.3d at 119,

526 N.E.2d 816 (Whiteside, J., concurring) (‘It is not necessary

that both crimes are always committed by the same conduct but,

rather, it is sufficient if both offenses can be committed by the

same conduct. It is a matter of possibility, rather than certainty,

that the same conduct will constitute commission of both offenses.’

[Emphasis sic]). If the offenses correspond to such a degree that

the conduct of the defendant constituting commission of one offense

constitutes commission of the other, then the offenses are of

similar import.

       {¶ 105}      “If the multiple offenses can be committed by the

same conduct, then the court must determine whether the offenses

were committed by the same conduct, i.e., ‘a single act, committed

with   a   single    state   of   mind.’   Brown,   119   Ohio   St.3d   447,

2008-Ohio-4569,       895    N.E.2d   149,   at     ¶50   (Lanzinger,    J.,

dissenting).

       {¶ 106}      “If the answer to both questions is yes, then the

offenses are allied offenses of similar import and will be merged.

       {¶ 107}      “Conversely, if the court determines that the

commission of one offense will never result in the commission of

the other, or if the offenses are committed separately, or if the

defendant has separate animus for each offense, then, according

to R.C. 2941.25(B), the offenses will not merge.”                (Johnson at
                                                                      31

¶48-51).

     {¶ 108}     The four counts of sexual battery in this case stem

from two separate incidents.     On January 1, 2010, Parker digitally

penetrated     the   victim’s   vagina   (count   one)   and   performed

cunnilingus on her (count two).      On January 9, 2010, Parker once

again digitally penetrated the victim’s vagina (count three) and

performed cunnilingus on her (count four).

     {¶ 109}     Because the same statutory offense, committed

multiple times, can be committed with the same conduct, the

multiple offenses that result are allied offenses of similar import

for purposes of R.C. 2941.25(A).     Their merger is required unless,

per R.C. 2941.25(B), the offenses were committed separately or with

a separate animus.

     {¶ 110}     As it is used in R.C. 2941.25(B), “animus” means

animus malus, or evil intent.      Parker’s intent when he engaged in

sexual activity with the victim was his own, and perhaps the

victim’s, sexual gratification.      Conduct to obtain either result,

when prohibited by R.C. 2903.07(A), is evil or wrong.           Parker’s

offenses were not committed with a separate animus as to each.

     {¶ 111}     Counts one and two do not merge with counts three

and four because the sexual conduct involved occurred on separate

dates, January 1, 2010, and January 9, 2010, and accordingly those

offenses were “committed separately.”       R.C. 2941.25(B); Johnson,
                                                                     32

___ Ohio St.3d ___, 2010-Ohio-6314, at ¶51.      The further issue that

remains is whether count one should merge with count two and count

three should merge with count four.     We have previously held that

allied offenses involving distinct, different kinds of sexual

activity each constitute a separate crime and do not require

merger, even when they are committed in the course of the same

encounter.     State   v.   Garrison,   Greene   App.   No.   2003CA67,

2004-Ohio-3567, at ¶6, citing State v. Grant, Montgomery App. No.

19824, 2003-Ohio-7240, at ¶59, citing State v. Nicholas (1993),

66 Ohio St.3d 431.

     {¶ 112}    R.C. 2907.01(A) defines sexual conduct as follows:

     {¶ 113}    “(A) ‘Sexual conduct’ means vaginal intercourse

between a male and female; anal intercourse, fellatio, and

cunnilingus between persons regardless of sex; and, without

privilege to do so, the insertion, however slight, of any part of

the body or any instrument, apparatus, or other object into the

vaginal or anal opening of another.     Penetration, however slight,

is sufficient to complete vaginal or anal intercourse.”

     {¶ 114}    On each of two separate occasions, January 1 and

9, 2010, Parker engaged in two different, distinct types of sexual

conduct with this victim, digital penetration of her vagina and

cunnilingus.   Digital penetration of the victim’s vagina does not

result in cunnilingus, and vice versa.        Because these offenses
                                                                33

involve different, distinct types of sexual activity, they each

constitute a separate crime and their merger is not required by

R.C. 2941.25.   Garrison; Grant; Nicholas.

     {¶ 115}    Parker’s seventh assignment of error is overruled.

     Conclusion

     {¶ 116}    Having sustained Parker’s second assignment of

error, in part, and his third and sixth assignments of error, we

will exercise the discretion conferred on us by R.C. 2953.08(G)(2)

to modify the trial court’s judgment.   The four sentences imposed

for each offense will remain unchanged, but    the four sentences

will be served concurrently instead of consecutively.         The

aggregate sentence Parker must serve will then be five years

instead of fifteen.   As thus modified, the judgment of the trial

court will be affirmed.

                                               Judgment affirmed

                                                    as modified.



FAIN and DONOVAN, JJ., concur.
