[Cite as State v. St. John, 2017-Ohio-4043.]




                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                         LAKE COUNTY, OHIO


STATE OF OHIO,                                    :          OPINION

                 Plaintiff-Appellee,              :
                                                             CASE NO. 2015-L-133
        - vs -                                    :

JAMES R. ST. JOHN,                                :

                 Defendant-Appellant.             :


Criminal Appeal from the Lake County Court of Common Pleas, Case No. 15 CR
000091.

Judgment: Affirmed.


Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant
Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
Painesville, OH 44077 (For Plaintiff-Appellee).

Matthew C. Bangerter, P.O. Box 148, Mentor, OH 44061 (For Defendant-Appellant).



THOMAS R. WRIGHT, J.


        {¶1}     Appellant, James R. St. John, appeals his twenty-two year sentence after

pleading guilty to four felony offenses.              He contests imposition of consecutive

sentences, the length of his sentences, and the court’s refusal to merge two of the

offenses. The sentence is affirmed in all respects.

        {¶2}     As of January 2015, appellant lived on Traymore Boulevard in Eastlake,
Lake County, Ohio, a residence near the home of a woman whom he dated for a brief

period and with whom he remained friends. This friend’s ten-year-old daughter, M.H.,

would visit appellant’s residence from time to time to watch movies. M.H.’s ten-year-old

friend, T.M., would sometimes accompany her.

       {¶3}   After coming home from work on the night of January 9, 2015, appellant

had dinner and got high on cocaine. At approximately 10:00 p.m., he sent a text to

M.H., inviting her to come over to watch movies. T.M. was spending the night with M.H.

Both went to appellant’s residence.          Shortly after arrival, appellant played a

pornographic movie on his television. Appellant had done this on a prior visit, making

both girls uncomfortable.

       {¶4}   While the movie was playing, M.H. suggested that the three of them play

“truth or dare,” a game in which one person would dare the others to do certain things.

Over the next twenty to thirty minutes, the girls: (1) kissed each other; (2) touched

appellant’s exposed penis moving their hands up and down; (3) placed their mouth on

appellant’s exposed penis; and (4) rubbed their clothed and unclothed body against

appellant’s body and penis. Appellant also touched his mouth on each of the girls’

genitals. At the conclusion, appellant gave the girls ice cream and told them to not tell

anyone.

       {¶5}   Over the next few days, appellant and the girls exchanged texts regarding

what would happen if the girls told their parents. Ultimately, M.H. told appellant that she

was going to tell her mother or grandmother. In response, he texted that he would

come to M.H.’s home and admit the incident to her mother, and then turn himself into

the police. Eight days following the incident, appellant went to the Eastlake Police




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Department and told an officer what happened.

       {¶6}   After M.H. confirmed appellant’s statement, the police searched his

residence.    The police found significant drug paraphernalia, twenty-three adult

magazines, and ten pornographic videos. Some of the pornography depicted girls who,

if eighteen years old, were made to look younger.

       {¶7}   Appellant pleaded guilty to a four-count information, charging him with one

count of rape and one count of gross sexual imposition as to each victim.            Upon

accepting the plea, the trial court found him guilty and ordered a presentence

investigation and a sex offender assessment.          At the sentencing hearing, defense

counsel presented testimony of a forensic psychologist addressing recidivism. The trial

court sentenced appellant to ten years on each rape count and one-year on each gross

sexual imposition count, consecutively, for an aggregate term of twenty-two years.

       {¶8}   Appellant asserts three assignments of error:

       {¶9}   “[1.] The trial court erred to the prejudice of the defendant-appellant by

failing to merge allied offenses of similar import.

       {¶10} “[2.] The trial court erred by sentencing the defendant-appellant to a term

of imprisonment contrary to statute and where its findings were not supported by the

record.

       {¶11} “[3.] The trial court erred by sentencing the defendant-appellant to a term

of imprisonment contrary to statute and where its findings were not supported by the

record.”

       {¶12} Prior to sentencing, appellant moved the trial court to merge the gross

sexual imposition charge with the rape charge corresponding to the same victim. The




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trial court heard arguments and overruled appellant’s motion.           Under his first

assignment, appellant asserts this as error.

       {¶13} The imposition of multiple punishments is governed by R.C. 2941.25:

       {¶14} “(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.

       {¶15} “(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.”

       {¶16} In its most recent pronouncement on merger, the Supreme Court of Ohio

stated:

       {¶17} “Under R.C. 2941.25(B), a defendant whose conduct supports multiple

offenses may be convicted of all the offenses if any of the following is true: (1) the

conduct constitutes offenses of dissimilar import, (2) the conduct shows that the

offenses were committed separately, or (3) the conduct shows that the offenses were

committed with separate animus.” State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995,

34 N.E.3d 892, paragraph three of the syllabus.

       {¶18} As to the first prong of the foregoing standard, “[g]ross sexual imposition

and rape may, depending on the circumstances, be allied offenses of similar import.

For instance, it is well-established that gross sexual imposition is a lesser included

offense of rape. State v. Johnson (1988), 36 Ohio St.3d 224, 226, 522 N.E.2d 1082;




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State v. Jones (1996), 114 Ohio App.3d 306, 325, 683 N.E.2d 87. Accordingly, under

R.C. 2941.25, a defendant may generally not be convicted of and sentenced for both

gross sexual imposition and rape when they arise out of the same conduct.” State v.

Hay, 3d Dist. Union No. 14-2000-24, 2000 Ohio App. LEXIS 5951, *7 (Dec. 19, 2000).

          {¶19} Other Ohio appellate districts have followed this reasoning in regard to

gross sexual imposition and rape. See, e.g., State v. J.M., 10th Dist. Franklin No.

14AP-621, 2015-Ohio-5574, ¶56; State v. Hemphill, 8th Dist. Cuyahoga No. 85431,

2005-Ohio-3726, ¶98. These districts also emphasize that the corollary of Hay: that if

the gross sexual imposition and rape are based upon separate conduct, the defendant

can be convicted and sentenced on both crimes. State v. Millhoan, 6th Dist. Lucas Nos.

L-10-1328 and L-10-1329, 2011-Ohio-4741, ¶49.

          {¶20} In deciding whether the two offenses are based upon the same conduct,

the focus is upon whether both crimes were accomplished by a single act.               For

example, in J.M., at ¶56, the merger of gross sexual imposition into rape was upheld

because both offenses were completed with one gesture: i.e., while the defendant

rubbed his hand across the victim’s genitals, he momentarily made penetration with his

finger.     However, the opposite conclusion is reached when the two offenses are

predicated upon distinct acts:

          {¶21} “With respect to each victim, the rape count or counts involve the

performance of fellatio by appellant upon his victim, while the gross sexual imposition

counts involve the rubbing of appellant’s penis on the victim’s buttocks * * *. These are

distinct sexual acts involving different areas of the victim’s body that were obviously not

performed simultaneously and, therefore, constitute separate crimes for which appellant




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may be convicted and sentenced.” Millhoan, at ¶51.

       {¶22} A similar analysis was followed in Hay, at *7-8: “The charge of gross

sexual imposition was premised upon the alleged masturbation of Thomas’s penis. This

is separate and distinct from the action, specifically the act of fellatio, which constituted

the sexual conduct which lead to the appellant’s criminal charge for rape. Therefore,

the appellant committed two separate offenses and he may be convicted of both. See

R.C. 2941.25(B).” (Footnotes omitted.)

       {¶23} In our case, the rapes and the gross sexual impositions are based upon

separate acts involving distinct parts of each victim’s body. As noted, the rape counts

are predicated upon each victim placing her mouth upon the appellant’s penis.              In

contrast, the gross sexual imposition charges stem from each victim rubbing their body

on his genitals.

       {¶24} This is not a situation in which the gross sexual imposition and rape

occurred simultaneously. In addition to each offense being based upon a separate act,

there is no dispute that the acts took place during a game of truth or dare, in which the

acts occurred after a new “dare” was stated. The first assignment lacks merit.

       {¶25} Although appellant’s remaining two assignments are worded identically,

they raise distinct sentencing issues. Under the second assignment, he submits that

the trial court did not make the required findings under R.C. 2929.14(C) to impose

consecutive prison terms.

       {¶26} An appellate court’s review of a felony sentence is controlled solely by the

provisions of R.C. 2953.08(G)(2). State v. Grega, 11th Dist. Ashtabula No. 2014-A-

0002, 2014-Ohio-5179, ¶10. That statute provides:




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       {¶27} “The court hearing an appeal under division (A), (B), or (C) of this section

shall review the record, including the findings underlying the sentence or modification

given by the sentencing court.

       {¶28} “The appellate court may increase, reduce, or otherwise modify a

sentence that is appealed under this section or may vacate the sentence and remand

the matter to the sentencing court for resentencing. The appellate court’s standard of

review is not whether the sentencing court abused its discretion. The appellate court

may take any action authorized by this division if it clearly and convincingly finds either

of the following:

       {¶29} “(a) That the record does not support the sentencing court’s findings under

division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or

division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;

       {¶30} “(b) That the sentence is otherwise contrary to law.”

       {¶31} Under this standard, an appellate court upholds the imposed felony

sentence unless: (1) required mandatory findings are clearly and convincingly not

supported by the record; or (2) the sentence is clearly and convincingly not consistent

with other pertinent aspects of the law. State v. Talley, 11th Dist. Trumbull No. 2014-T-

0098, 2015-Ohio-2816, ¶15, citing State v. Robinson, 1st Dist. Hamilton No. C-140043,

2015-Ohio-773, ¶38.

       {¶32} “It is important to note ‘that the clear and convincing standard used by

R.C. 2953.08(G)(2) is written in the negative. It does not say that the trial judge must

have clear and convincing evidence to support its findings. Instead, it is the court of

appeals that must clearly and convincingly find that the record does not support the




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court’s findings.’ [State v.] Venes, 2013-Ohio-1891, 992 N.E.2d 453, at ¶21. ‘In other

words, the restriction is on the appellate court, not the trial judge. This is an extremely

deferential standard of review.’    Id.”   State v. Rodeffer, 2d Dist. Montgomery Nos.

25574, 25575, and 25576, 2013-Ohio-5759, ¶31.

       {¶33} Pursuant to R.C. 2929.14(C)(4), a trial court “may” sentence the offender

to consecutive prison terms if it finds that: (1) such terms are “necessary to protect the

public from future crime or to punish the offender”; (2) such terms “are not

disproportionate to the seriousness of the offender’s conduct and to the danger the

offender poses to the public”; and (3) one of three alternative factors exist. In this case,

as to the third requirement, the trial court found subsections (b) and (c) were satisfied:

       {¶34} “(b) At least two of the multiple offenses were committed as part of one or

more courses of conduct, and the harm caused by two or more of the multiple offenses

so committed was so great or unusual that no single prison term for any of the offenses

committed as part of any of the courses of conduct adequately reflects the seriousness

of the offender’s conduct.

       {¶35} “(c) The offender’s history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime by the

offender.”

       {¶36} In contesting the adequacy of the trial court’s factual findings under R.C.

2929.14(C), appellant challenges the third requirement. Specifically, he maintains that,

during the sentencing hearing, the trial court did not make all necessary findings as to

alternative (b), because he failed to find offenses were committed as part of a course of

conduct.




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       {¶37} As part of its oral pronouncement of sentence, the trial court stated:

       {¶38} “The Court does believe that consecutive sentences are necessary to

protect the public and punish the offender. Consecutive sentences in this case would

not be disproportionate to his conduct and the danger the offender poses. The Court

does find that the harm is so great or unusual that a single term would not adequately

reflect the seriousness of his conduct, and that his criminal history shows that

consecutive terms are needed to protect the public.” (Emphasis added.)

       {¶39} In light of the italicized phrase, the trial court predicated its finding in part

upon alternative (b). Yet, despite finding that the harm caused is so great or unusual

that concurrent terms would not adequately reflect the seriousness of his conduct, the

court did not expressly state that the crimes were committed as part of one or more

courses of conduct.

       {¶40} “In order to impose consecutive terms of imprisonment, a trial court is

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

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

state reasons to support its findings.” State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-

3177, ¶37.     The findings are needed to overcome the statutory presumption of

concurrent prison terms. R.C. 2929.41; State v. Carnes, 11th Dist. Trumbull No. 2014-

T-0120, 2015-Ohio-4429, ¶11, citing Bonnell, at ¶23.

      {¶41} “[W]hen making findings regarding consecutive sentences, ‘a verbatim

recitation of the statutory language is not required by the trial court.’ State v, Green,

11th Dist. Ashtabula No. 2003-A-0089, 2005-Ohio-3268, ¶26, citing State v. Grissom,

11th Dist. Lake No. 2001-L-107, 2002-Ohio-5154, ¶21. The trial court is not required to




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use ‘magic words’ in order to satisfy its obligation to make findings before imposing

consecutive sentences.     Venus, supra, ¶13.      It is sufficient if the trial court makes

statements during the sentencing hearing showing that the decision to impose

consecutive prison terms was predicated upon R.C. 2929.14(C)(4). State v. Lewis, 11th

Dist. Lake No. 2012-L-074, 2013-Ohio-074, ¶92, 94.”           State v. Koeser, 11th Dist.

Portage No. 2013-P-0041, 2013-Ohio-5838, ¶23.

       {¶42} In Koeser, the trial court imposed consecutive sentences under R.C.

2929.14(C)(4)(b) without expressly stating that the multiple offenses were committed as

part of a course of conduct. This court held that other statements the trial court made

during the sentencing hearing were sufficient to satisfy the course of conduct finding

requirement:

       {¶43} “The trial court found that appellant had pled guilty to three counts: illegal

manufacture of marijuana, illegal manufacture of psilocin mushrooms, and endangering

children, each of which was committed on February 15, 2012, at appellant’s residence.

Moreover, the trial court found that appellant was involved in the manufacture of a ‘bus

load’ of marijuana and psilocin mushrooms at that time and that this activity occurred in

the presence of appellant’s child.     Thus, the trial court in effect found these three

offenses were committed as part of a course of conduct.” Id. at ¶27.

       {¶44} Under Koeser a trial court makes a sufficient “course of conduct” finding if,

at some point during the sentencing hearing, the court notes that the defendant has

been found guilty of multiple offenses that had the necessary temporal relationship.

This is consistent with the general principle that a proper finding can be made without

the recitation of the specific words used in the statute.




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       {¶45} At the outset of the sentencing hearing in our case, the trial court made a

statement similar to the one in Koeser. In overruling appellant’s motion to merge the

gross sexual imposition counts with the rape counts, the trial court stated:

       {¶46} “The Court determines that for the reasons stated, these do not merge.

The Court will sentence on all 4. That there’s a separate animus, a separate conduct.

There’s been a break in time. There’s a separate decision made to commit each of the

violations. The rapes could be committed without committing the GSI’s, the GSI’s could

be committed without committing rape. All of these were committed separately.”

       {¶47} Furthermore, immediately prior to stating its specific findings regarding

consecutive sentences, the trial court reiterated that appellant would be sentenced on

all four offenses. By concluding that appellant made a separate decision to commit

each of the four crimes, the trial court was finding that the crimes did not occur all at

once; i.e., the crimes took place as part of one or more courses of conduct. This finding

is clearly supported by the underlying facts of the case. Appellant required the two

victims to engage in a series of distinct sexual acts over a period of twenty to thirty

minutes. Last, requiring a trial court to “find” that the offenses were committed as part

of “one or more courses of conduct” serves no purpose as it is true by necessity, not

case sensitive. It is impossible to commit multiple offenses in the absence of one or

more courses of conduct.

       {¶48} Taken as a whole, the trial court’s finding is sufficient to fully inform

appellant that imposition of consecutive sentences is based in part upon alternative (b).

Moreover, appellant has not argued that the trial court’s finding is otherwise clearly and

convincingly not supported. Accordingly, appellant has failed to show that the trial court




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committed prejudicial error in imposing consecutive sentences. In light of our analysis

under R.C. 2929.14(C)(4)(b), it is not necessary to discuss the merits of the trial court’s

separate finding under R.C. 2929.14(C)(4)(c) that appellant’s prior criminal record is

sufficient to justify the imposition of consecutive terms as a means of protecting the

public. His second assignment is not well-taken.

      {¶49} Under his final assignment, appellant contends that the trial court erred in

imposing a ten-year prison term on each rape count. He maintains a shorter term was

warranted because he turned himself in and had not been convicted of any crime in the

previous nine years.

      {¶50} “A sentence is contrary to law if (1) the sentence falls outside the statutory

range for the particular degree of offense, or (2) the trial court failed to consider the

purposes and principles of felony sentencing set forth in R.C. 2929.11 and the

sentencing factors in R.C. 2929.12. State v. Hinton, 8th Dist. Cuyahoga No. 102710,

2015-Ohio-4907, ¶10, citing State v. Smith, 8th Dist. Cuyahoga No. 100206, 2014-Ohio-

1520, ¶13. When a sentence is imposed solely after consideration of the factors in R.C.

2929.11 and 2929.12, appellate courts ‘may vacate or modify any sentence that is not

clearly and convincing contrary to law only if the appellate court finds by clear and

convincing evidence that the record does not support the sentence.’ State v. Marcum,

146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶23.” State v. Price, 8th Dist.

Cuyahoga No. 104341, 2017-Ohio-533, ¶14.

      {¶51} Rape under R.C. 2907.02(A) is a first-degree felony. The prison term for

such offense “shall be three, four, five, six, seven, eight, nine, ten, or eleven years.”

R.C. 2929.14(A)(1). Given that the trial court sentenced appellant to ten years on each




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rape count, the terms are within the statutory range. In relation to the one-year terms

for the gross sexual imposition counts, the trial court gave the shortest term possible for

a third-degree felony. R.C. 2929.14(A)(3)(a).

       {¶52} At sentencing, and in the sentencing entry, the trial court expressly stated

that it considered the general purposes and principles of felony sentencing, as provided

in R.C. 2929.11, and the various factors relating to the seriousness of the crimes and

the likelihood of future offenses, as listed in R.C. 2929.12. Thus, the trial court complied

with the applicable statutes in determining the length of appellant’s felony offenses.

       {¶53} The record readily supports the conclusion that the seriousness of the four

offenses outweighs any mitigating factor, including that appellant confessed his crimes

to the police and expressed true remorse for his behavior. In support, the two victims

were only ten years old; appellant was a friend of M.H.’s family and held a position of

trust; appellant subjected each victim to various sexual acts; and the victims suffered

serious psychological harm.

       {¶54} Appellant further argues that the totality of the circumstances support the

conclusion that he would never commit these types of crimes again. But the trial court

concluded otherwise. Throughout the proceeding, appellant stated that the incident

occurred only because he was high on cocaine. However, he had a long history of

illegal drug use and had never taken any steps to remedy the problem. Furthermore,

appellant had played a pornographic movie in the victims’ presence on a prior occasion.

In addition, some of the pornographic material in his home shows a predilection for

underage girls.

       {¶55} Thus, imposition of ten-year terms on the rape counts is not clearly and




                                            13
convincingly contrary to law. Appellant’s final assignment lacks merit.

      {¶56} The judgment of the Lake County Court of Common Pleas is affirmed.



TIMOTHY P. CANNON, J.,

COLLEEN MARY O’TOOLE, J.,

concur.




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