[Cite as State v. McKee, 2018-Ohio-2385.]


                                       COURT OF APPEALS
                                   MUSKINGUM COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                               :       JUDGES:
                                            :       Hon. John W. Wise, P.J.
        Plaintiff - Appellee                :       Hon. William B. Hoffman, J.
                                            :       Hon. Craig R. Baldwin, J.
-vs-                                        :
                                            :
LARRY L. MCKEE                              :       Case No. CT2017-0043
                                            :
        Defendant - Appellant               :       OPINION



CHARACTER OF PROCEEDING:                            Appeal from the Muskingum County
                                                    Court of Common Pleas, Case No.
                                                    CR2016-0307




JUDGMENT:                                           Affirmed




DATE OF JUDGMENT:                                   June 18, 2018




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

D. MICHAEL HADDOX                                   ERIC J. ALLEN
Prosecuting Attorney                                The Law Office of Eric J. Allen, Ltd.
                                                    4605 Morse Rd., Suite 201
By: GERALD V. ANDERSON II                           Gahanna, Ohio 43230
Assistant Prosecuting Attorney
Muskingum County, Ohio
27 North Fifth St., P.O. Box 189
Zanesville, Ohio 43702-0189
Muskingum County, Case No. CT2017-0043                                              2

Baldwin, J.

       {¶1}   Defendant-appellant Larry L. McKee appeals his sentence issued by the

Muskingum County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.

                       STATEMENT OF THE FACTS AND CASE

       {¶2}   On September 28, 2016, the Muskingum County Grand Jury indicted

appellant on four counts of gross sexual imposition in violation or R.C. 2907.05(A)(4),

felonies of the third degree, and one count of compelling prostitution in violation of R. C.

2907.21(A)(3)(a), also a felony of the third degree. At his arraignment on October 5, 2016,

appellant entered a plea of not guilty to the charges.

       {¶3}   Thereafter, on November 9, 2016, appellant withdrew his former not guilty

plea and entered a plea of guilty to all four of the charges of gross sexual imposition. The

charge of compelling prostitution was dismissed upon appellee’s motion as memorialized

in an Order filed on June 20, 2017. Pursuant to an Entry filed on June 20, 2017, appellant

was sentenced to sixty (60) months on each count of gross sexual imposition. The trial

court ordered that Counts Two and Three be served concurrently with each other and

that Counts One and Four be served concurrently with each other, but consecutive to

Counts Two and Three for an aggregate prison sentence of 120 months. Appellant also

was classified as a Tier II Sex Offender.

       {¶4}   Appellant now appeals, raising the following assignment of error on appeal:

       {¶5}   I. THE TRIAL COURT RECORD DOES NOT SUPPORT BY CLEAR AND

CONVINCING EVIDENCE THE IMPOSITION OF CONSECUTIVE SENTENCES.
Muskingum County, Case No. CT2017-0043                                            3


                                            I

      {¶6}   Appellant in his sole assignment of error, argues that the record does not

support the imposition of consecutive sentences. Appellant does not argue that the trial

court failed to make the appropriate findings required by R.C. 2929.14(C). Instead, he

argues that consecutive sentences are inappropriate.

                               Standard of Appellate Review

      {¶7}    We review felony sentences using the standard of review set forth in R.C.

2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002, 59 N.E.3d 1231, ¶ 22;

State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015–Ohio–4049, ¶ 31. R.C.

2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence

and remand for resentencing where we clearly and convincingly find that either the record

does not support the sentencing court's findings under R.C. 2929.13(B) or (D),

2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to law.

See, also, State v. Bonnell, 140 Ohio St.3d 209, 2014–Ohio–3177, 16 N.E.2d 659, ¶ 28.

      {¶8}   Accordingly, pursuant to Marcum this Court may vacate or modify a felony

sentence on appeal only if it determines by clear and convincing evidence that: (1) the

record does not support the trial court's findings under relevant statutes, or (2) the

sentence is otherwise contrary to law.

      {¶9}   {¶ 8} Clear and convincing evidence is that evidence “which will provide 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, 120 N.E.2d 118(1954), paragraph three

of the syllabus. Where the degree of proof required to sustain an issue must be clear and

convincing, a reviewing court will examine the record to determine whether the trier of
Muskingum County, Case No. CT2017-0043                                               4

facts had sufficient evidence before it to satisfy the requisite degree of proof.” Cross, 161

Ohio St. at 477, 120 N.E.2d 118.

       {¶10} When discretionary consecutive sentences are imposed as here, R.C.

2929.14(C)(4) requires the following:

       {¶11} (4) If multiple prison terms are imposed on an offender for convictions of

multiple offenses, the court may require the offender to serve the prison terms

consecutively if the court finds that the consecutive service is necessary to protect the

public from future crime or to punish the offender and that consecutive sentences are not

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

offender poses to the public, and if the court also finds any of the following:

       {¶12} (a) The offender committed one or more of the multiple offenses while the

offender was awaiting trial or sentencing, was under a sanction imposed pursuant to

section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release

control for a prior offense.

       {¶13} (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.

       {¶14} (c) The offender's history of criminal conduct demonstrates that consecutive

sentences are necessary to protect the public from future crime by the offender.

       {¶15} In State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659,

syllabus, the Supreme Court of Ohio held: “In order to impose consecutive terms of
Muskingum County, Case No. CT2017-0043                                             5


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.”

       {¶16} Where a trial court properly makes the findings mandated by R.C.

2929.14(C)(4), an appellate court may not reverse the trial court's imposition of

consecutive sentences unless it first clearly and convincingly finds that the record does

not support the trial court's findings.” State v. Withrow, 2nd Dist. No. 2015-CA-24, 2016-

Ohio-2884, 64 N.E.3d 553, ¶ 38.

       {¶17} Appellant, in support of his argument, that the record does not support his

consecutive sentences, notes that he was 75 years old and in poor health at the time of

the offenses. He further notes that he led a law-abiding life for 75 years and showed

genuine remorse and fully cooperated with law enforcement, giving a full confession.

       {¶18} During the sentencing hearing the trial court found that the victim was only

eight years old and that there was a serious difference in age between appellant and his

victim. Appellant admitted to sexually abusing her for his own gratification and admitted

that he realized that he had probably affected her for the rest of her life. At the plea

hearing on November 9, 2016, the following was noted on the record by the Assistant

Prosecuting Attorney:

       {¶19} He [appellant] was arrested. He indicated that he was attracted to the

victim, that she had stayed all night at his house during the summer, that while she was

there he walked around naked in front of her, she touched his penis causing had (sic) to

be erect, he touched her vagina under her clothes without making penetration, he touched
Muskingum County, Case No. CT2017-0043                                          6


her vagina over her clothes, and did admit to loaning money to the victim’s mother. All

this occurred here in Muskingum County, Ohio.

       {¶20} THE COURT: How old was the victim?

       {¶21} MR. EDWARDS: Eight.

       {¶22} Transcript of plea hearing at 13.

       {¶23} Here, we find ample evidence on this record to support the trial court's

imposition of consecutive sentences.

       {¶24} Appellant's sentence is not contrary to law, and the trial court properly

considered all relevant factors to impose maximum consecutive sentences, and the

record supports the trial court's findings.

       {¶25} Appellant's sole assignment of error is, therefore, overruled.

       {¶26} Accordingly, the judgment of the Muskingum County Court of Common

Pleas is affirmed.

By: Baldwin, J.

John Wise, P.J. and

Hoffman, J. concur.
