[Cite as State v. Tate, 2014-Ohio-5269.]


                  Court of Appeals of Ohio
                                    EIGHTH APPELLATE DISTRICT
                                       COUNTY OF CUYAHOGA



                                   JOURNAL ENTRY AND OPINION
                                            No. 97804



                                           STATE OF OHIO

                                                 PLAINTIFF-APPELLEE

                                                   vs.

                                           JAMES TATE, II

                                                 DEFENDANT-APPELLANT




                                        JUDGMENT:
                             AFFIRMED IN PART, REVERSED IN PART
                                      AND REMANDED



                                         Civil Appeal from the
                                Cuyahoga County Court of Common Pleas
                                      Case No. CR-11-550840-A


        BEFORE:            E.A. Gallagher, J., Boyle, A.J., and Kilbane, J.

        RELEASED AND JOURNALIZED: November 26, 2014
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender
BY: Paul Kuzmins
Assistant Public Defender
310 Lakeside Avenue
Cleveland, Ohio 44113

Rick L. Ferrara
2077 East 4th Street
Second Floor
Cleveland, Ohio 4414

Donald R. Murphy
12800 Shaker Boulevard
Suite 200
Cleveland, Ohio 44120


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Mollie Ann Murphy
       James M. Price
Assistant Prosecuting Attorneys
Justice Center 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:

       {¶1}    This cause is before this court on remand from the Ohio Supreme Court in State v.

Tate, Slip Opinion No. 2014-Ohio-3667, for further review of our decision released February 21,

2013. The Ohio Supreme Court, having reversed our judgment in this case that was based on an

issue not raised in Tate’s appeal, has remanded it to us with instructions to consider Tate’s

assignments of error.

       {¶2} Tate appeals from his conviction in the Cuyahoga County Court of Common Pleas of

two counts of kidnapping, importuning, gross sexual imposition and public indecency. For the

following reasons, we affirm in part, and reverse in part.

       {¶3} The facts presented at a bench trial were that on February 12, 2012, B.P., a female 14

years of age at the time, went to the Euclid public library with two female friends, T.W. and L.J.

T.W. and L.J. entered the library while B.P. stood outside, alone. B.P. was approached by Tate

who showed her a business card and told her about a study group located away from the library,

behind nearby tennis courts. Under the guise of being shown the location of the study group,

B.P. walked away from the library with Tate who began talking to her about his business. Tate

eventually began talking to B.P. about her body, telling her that “she could make a lot of money in

one night.”

       {¶4} T.W. and L.J. observed B.P. walking away from the library with Tate and B.P. did

not respond to their attempts to call to her other than to signal behind her back for them to follow

her. T.W. and L.J. eventually lost sight of B.P. and Tate. Euclid police officer Adam Beese

observed B.P. and Tate walking and talking near Euclid’s Memorial Pool.

       {¶5} Tate led B.P. out of sight behind the entrance to the pool where he told her that he

wanted to make sure she was “committed to the business.” Tate grabbed B.P.’s arm and she was
pulled to the ground on her knees. Tate removed his penis from his pants and used his grip on

B.P. to rub her hand against it. B.P.’s phone buzzed at that point and she got off the ground

claiming that her mother was at the library.       B.P. and Tate walked back toward the library and

encountered T.W. and L.J.         Tate told B.P. that her friends did not need to know what had

occurred and gave the three girls fliers for his business. B.P., T.W. and L.J. walked back to the

library with Tate some distance behind them.

           {¶6} Once inside the library, B.P. recounted the events to T.W. and L.J. who encouraged

her to report the incident to the police.    The three girls departed the library for the Euclid police

station but not before seeing Tate inside the library seated at a computer.

           {¶7} The girls recounted the incident to Euclid police who responded to the library and

arrested Tate after his phone rang when the police dispatch called the phone number on the fliers

presented by the girls.

           {¶8} Tate testified at trial and claimed that B.P. initiated contact with him outside the

library.     This testimony was refuted by surveillance video from the library that showed Tate

purposefully initiating contact with B.P.       Tate testified that his purpose in speaking with B.P.

initially was to recruit her to work for his employer, Clear Choice, after she expressed interest in

his job. However, Tate admitted that he asked B.P. for oral sex while they were walking but

claimed that he terminated the encounter when B.P. was unable to verify her age with

identification. Tate denied luring B.P. away from the library with the promise of a study group,

denied pulling B.P. to her knees and denied exposing himself.

           {¶9} Not one of the girls who testified made an in-court identification of the defendant.

       {¶10} Following a bench trial, the trial court found appellant guilty of two counts of
kidnapping, importuning, gross sexual imposition and public indecency. The trial court imposed
a prison term of seven years for each count of kidnapping, eighteen months for each count of
importuning and gross sexual imposition and six months for public indecency. All terms were
ordered to be served concurrently. Tate appeals and his first assignment of error provides:

       Insufficient evidence supported appellant’s convictions for kidnapping and gross
       sexual imposition.

       {¶11} This court has said that, in evaluating a sufficiency of the evidence argument, courts

are to assess not whether the state’s evidence is to be believed but whether, if believed, the

evidence against a defendant would support a conviction. State v. Givan, 8th Dist. Cuyahoga No.

94609, 2011-Ohio-100, ¶ 13, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541

(1997). The relevant inquiry then is whether, after viewing the evidence in a light most favorable

to the prosecution, any rational trier of fact could have found the essential elements of the crime

proven beyond a reasonable doubt. Id.

       {¶12} Tate was convicted of two counts of kidnapping in violation of R.C. 2905.01(A)(2)

and (A)(4). R.C. 2905.01 provides in relevant part:

       (A) No person, by force, threat, or deception, or, in the case of a victim under the
       age of thirteen or mentally incompetent, by any means, shall remove another from
       the place where the other person is found or restrain the liberty of the other person,
       for any of the following purposes:

       ***

       (2) To facilitate the commission of any felony or flight thereafter;

       ***

       (4) To engage in sexual activity, as defined in section 2907.01 of the Revised

       Code, with the victim against the victim’s will;

Id.

       {¶13} Tate argues that the state failed to demonstrate a violation of R.C. 2905.01(A)(2)

because there was no evidence that he used deception in luring B.P. away from the library for the
purpose of facilitating the commission of a gross sexual imposition.        We disagree.     Although

Tate testified that he and B.P. walked away from the library while talking about her interest in his

employment, B.P. testified that Tate lured her behind the Euclid Memorial Pool with the promise

of leading her to a non-existent study program for helping kids. Tate’s argument that the state

failed to present evidence of his use of deception to lure B.P. to a secluded location for the

purpose of committing a felony is without merit.

         {¶14} Next, Tate argues that the state failed to offer evidence that he used force to restrain

B.P.’s liberty for the purpose of engaging in sexual activity.     This court has previously defined

the element of “restrain the liberty of the other person” to mean “to limit one’s freedom of

movement in any fashion for any period of time.” State v. Wright, 8th Dist. Cuyahoga No. 92344,

2009-Ohio-5229, ¶ 23-24, quoting State v. Wingfield, 8th Dist. Cuyahoga No. 69229, 1996 Ohio

App. LEXIS 867 (Mar. 7, 1996). See also State v. Walker, 9th Dist. Medina No. 2750-M, 1998

Ohio App. LEXIS 4067 (Sept. 2, 1998) (restraint of liberty does not require prolonged

detainment); State v. Messineo, 5th Dist. Athens Nos. 1488 and 1493, 1993 Ohio App. LEXIS 38

(Jan. 6,1993) (grabbing victim’s arm and shaking her constituted restraint). R.C. 2901.01(A)(1)

defines “force” as means any violence, compulsion, or constraint physically exerted by any

meaning upon or against a person or thing.

         {¶15} Tate’s argument that the state offered insufficient evidence of force is without merit.

 B.P. testified that Tate used a grip on her arm to pull her to her knees when he pulled out his

penis.   B.P. stated that she did not go down to her knees voluntarily. Furthermore, even if we

were to ignore B.P.’s testimony that she was involuntarily pulled to her knees, we note that Tate

used his grip on her to rub her hand against his penis and B.P. testified that she did not want to
touch his penis. The state offered sufficient evidence of Tate’s use of force for the purposes of

kidnapping in Count 2.

       {¶16} Finally, Tate argues that the state failed to present sufficient evidence that Tate used

force to commit gross sexual imposition. We disagree. Gross sexual imposition is defined in

R.C. 2907.05 as follows:

       (A) No person shall have sexual contact with another, not the spouse of the
       offender; cause another, not the spouse of the offender, to have sexual contact with
       the offender; or cause two or more other persons to have sexual contact when any
       of the following applies:

       (1) The offender purposely compels the other person, or one of the other persons,
       to submit by force or threat of force.

       {¶17} Contrary to Tate’s argument, his actions in using his grip on B.P. to force her to

touch his penis against her will satisfied the force element of gross sexual imposition. See State

v. Hilton, 8th Dist. Cuyahoga No. 89220, 2008-Ohio-3010, ¶ 36 (defendant’s act of taking

victim’s hand and making her touch his penis constituted gross sexual imposition); State v.

Harrison, 1st Dist. Hamilton No. C-860700, 1987 Ohio App. LEXIS 9052 (Oct. 7, 1987)

(defendant’s act of pulling victim’s hand to his groin where she felt exposed skin went beyond

mere touching and constituted force sufficient to support a charge of gross sexual imposition).

       {¶18} Tate’s first assignment of error is overruled.

       {¶19} Tate’s second assignment of error provides:

       The manifest weight of the evidence did not support appellant’s convictions.

       {¶20} A manifest weight challenge questions whether the prosecution met its burden of

persuasion. State v. Byrd, 8th Dist. Cuyahoga No. 98037, 2012-Ohio-5728, ¶ 27. When

considering a manifest weight challenge, a reviewing court reviews the entire record, weighs the

evidence and all reasonable inferences therefrom, considers the credibility of the witnesses and
determines whether the finder of fact clearly lost its way. State v. Jackson, 8th Dist. Cuyahoga No.

86542, 2006-Ohio-1938, ¶ 29. A reviewing court may reverse the judgment of conviction if it

appears that the trier of fact clearly lost its way and created such a manifest miscarriage of justice

that the conviction must be reversed and a new trial ordered. Id.

       {¶21} Tate argues that B.P.’s testimony that she was misled into accompanying Tate away

from the library by the promise of a non-existent study group lacked credibility. Particularly,

Tate notes that B.P. should not have reasonably believed that such a study group existed and,

therefore, she must have accompanied Tate not because of the concocted study group story but of

her own volition. We disagree. B.P. was 14 years old on the date of the offenses. B.P.’s

testimony that Tate initiated contact with her was supported by the surveillance video while Tate’s

allegations that B.P. sought him out were refuted. The trial court found B.P. to be the more

credible witness and noted the importance of the surveillance video in discerning which of the

witnesses was telling the truth. We cannot say that the trial court clearly lost its way in finding

Tate guilty of the above offenses.

       {¶22} Tate’s second assignment of error is overruled.

       {¶23} Tate’s third assignment of error provides:

       Defense counsel was ineffective for failure to suppress 404(B) evidence and the
       admission of an unlawfully presented photo array.

       {¶24} In order to demonstrate a claim of ineffective assistance of counsel, the appellant

must show that his counsel deprived him of a fair trial. State v. Sanders, 8th Dist. Cuyahoga No.

55524, 1989 Ohio App. LEXIS 2362 (June 15, 1989). The appellant must specifically show that:

(1) defense counsel’s performance at trial was seriously flawed and deficient; and (2) the result of

the trial would have been different if defense counsel had provided proper representation at trial.
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

       {¶25} The state presented the testimony of Heather Culver who described an encounter

with Tate outside the Euclid public library on February 2, 2012. Culver was 18 years of age at the

time. She testified that after Tate engaged her in a conversation outside the library and asked for

her phone number, she ran inside the library and reported the interaction to the library

administration and eventually the Euclid Police Department. At trial she identified Tate as the

man who approached her. The state also introduced evidence that Culver identified Tate in a

photo array.

       {¶26} Tate argues that his trial counsel provided ineffective assistance of counsel by

failing to move to suppress Culver’s testimony and the photo array. In a segment of our prior

opinion, which was not overruled by the Ohio Supreme Court’s remand, we noted that the

evidence in question, which was admitted without objection at trial, was clearly in violation of

Evid.R. 404(B).

       {¶27} R.C. 2945.59 states that “[i]n any criminal case in which the defendant’s motive * *

*, intent, * * * absence of mistake or accident * * *, scheme, plan, or system in doing an act is

material,” other acts that tend to prove these things are admissible into evidence.   Additionally,

Evid.R. 404(B) states that:

       evidence of other crimes, wrongs, or acts is not admissible to prove the character of

       a person in order to show action in conformity therewith. It may, however, be

       admissible for other purposes, such as proof of motive, opportunity, intent,

       preparation, plan, knowledge, identity, or absence of mistake or accident.

       {¶28} Culver’s testimony plainly did not qualify as relevant Evid.R. 404(B) testimony as

Culver’s brief interaction with Tate did not involve in any manner a request for sex, an attempt to
lure her away from the library by deception or any other criminal activity. Furthermore, Culver,

unlike B.P., was 18 years of age at the time of the encounter.

       {¶29} The trial court in the present instance denied a belated objection by appellant’s

counsel to the testimony of Culver. The court noted that Culver’s testimony had been addressed at

a pretrial where the prosecution indicated its intent to present it and appellant’s counsel had

offered no objection.

       {¶30} Although Culver’s testimony, and its related photo array, should not have been

admitted because they violated Evid.R. 404(B), error in the admission of evidence is harmless if

there is no reasonable possibility that exclusion of the evidence would have affected the result of

the trial. State v. Chambers, 8th Dist. Cuyahoga No. 99864, 2014-Ohio-390, ¶ 40, citing State v.

Boczar, 11th Dist. Ashtabula No. 2007-A-0034, 2008-Ohio-834, ¶ 50; State v. Webb, 70 Ohio

St.3d 325, 335, 638 N.E.2d 1023 (1994).

       {¶31} Tate argues that the evidence at issue improperly bolstered B.P.’s credibility leading

the trial court to accept B.P.’s version of events over his own. However, this argument is

without merit because, as the trial court noted, the video surveillance evidence from the library

refuted Tate’s version of the encounter and confirmed B.P.’s testimony. Furthermore, Tate

admitted at trial that he asked B.P. for oral sex but denied that B.P. was down on her knees during

their encounter.   However, Euclid police officer Phil Tschetter testified that while he was

transporting Tate to the police station Tate made several spontaneous utterances including, “She

got up off her knees and I walked away.” These facts eviscerated Tate’s credibility such that

Culver’s testimony was completely unnecessary. As for the photo array evidence, we note it was

at best cumulative to the in-court identification Culver provided.
       {¶32} In light of the substantial evidence of guilt, we find that the improperly admitted

Evid.R. 404(B) evidence was harmless error.          Even if appellant’s trial counsel had been

successful in excluding Culver’s testimony or the photo array, the outcome of the trial would not

have been different. State v. Quarterman, 8th Dist. Cuyahoga No. 99317, 2013-Ohio-4037, ¶ 31

(no prejudice where the outcome of the trial would not have been different even if appellant’s trial

counsel had been successful in excluding photo arrays). Furthermore, the present case was a

bench trial and we note that appellate courts presume that a trial court considered only relevant

and admissible evidence in a bench trial. State v. Crawford, 8th Dist. Cuyahoga No. 98605,

2013-Ohio-1659, ¶ 61; State v. Chandler, 8th Dist. Cuyahoga No. 81817, 2003-Ohio-6037, ¶ 17.

       {¶33} Tate’s third assignment of error is overruled.

       {¶34} Tate’s fourth assignment of error provides:

       The trial court acted contrary to law by imposing appellant’s sentence without
       applying Ohio’s allied offenses statute.

       {¶35} Tate failed to object to the imposition of multiple sentences below and has,

therefore, waived all but plain error. Under Crim.R. 52(B), “[p]lain errors or defects affecting

substantial rights may be noticed although they were not brought to the attention of the court.”

An error rises to the level of plain error only if, but for the error, the outcome of the proceedings

would have been different. State v. Harrison, 122 Ohio St.3d 512, 2009-Ohio-3547, 912 N.E.2d

1106, ¶ 61; State v. Long, 53 Ohio St.2d 91, 97, 372 N.E.2d 804 (1978). The Ohio Supreme

Court has held that the imposition of multiple sentences for allied offenses of similar import is

plain error. State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 31, citing

State v. Yarbrough, 104 Ohio St.3d 1, 2004-Ohio-6087, 817 N.E.2d 845, ¶ 96-102.

       {¶36} Where the same conduct by the 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. R.C. 2941.25(A). Where the

defendant’s conduct constitutes two or more offenses of dissimilar import, or where his or her

conduct results in two or more offenses of the same or similar kind committed separately or with a

separate animus as to each, the defendant may be convicted of all of them. R.C. 2941.25(B).

       {¶37} Our review of an allied offenses question is de novo. State v. Webb, 8th Dist.

Cuyahoga No. 98628, 2013-Ohio-699, ¶ 4, citing State v. Williams, 134 Ohio St.3d 482,

2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28.

       {¶38} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, the

Ohio Supreme Court redefined the test for determining whether two offenses are allied offenses of

similar import subject to merger under R.C. 2941.25. The Johnson court expressly overruled

State v. Rance, 85 Ohio St.3d 632, 710 N.E.2d 699 (1999), which required a “comparison of the

statutory elements in the abstract” to determine whether the statutory elements of the crimes

correspond to such a degree that the commission of one crime will result in the commission of the

other. Pursuant to Johnson, the conduct of the accused must be considered in determining

whether two offenses should be merged as allied offenses of similar import under R.C. 2941.25.

Id. at syllabus. The determinative inquiry is two-fold: (1) “whether it is possible to commit one

offense and commit the other with the same conduct,” and (2) “whether the offenses were

committed by the same conduct, i.e., a single act, committed with a single state of mind.” Id. at ¶

48-49, quoting State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, ¶ 50

(Lanzinger, J., dissenting). “If the answer to both questions is yes, then the offenses are allied

offenses of similar import and will be merged.” Id. at ¶ 50. Due to the subjective nature of the

analysis based on the facts of each case, some crimes may be allied offenses in certain cases, but
not in another case under a different set of facts. Johnson at ¶ 52.

        {¶39} 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. Id. at ¶ 51.

        {¶40} The term “animus,” as defined by the Ohio Supreme Court in State v. Logan, 60

Ohio St.2d 126, 131, 397 N.E.2d 1345 (1979), means “purpose or, more properly, immediate

motive.”           Tate argues that his two kidnappings convictions and the gross sexual imposition

and public indecency convictions should all merge as allied offenses. We agree in part.

        {¶41} We first consider the two kidnapping convictions. Tate argues that his kidnapping

conviction for luring B.P. away from the library by deception should merge with his kidnapping

conviction for using force to compel B.P. to her knees and touch his penis. We disagree.

        {¶42} In Logan, the Ohio Supreme Court set forth the following test to determine what

constitutes a separate animus for kidnapping and a related offense.    Specifically, the court stated:

        In establishing whether kidnapping and another offense of the same or similar kind
        are committed with a separate animus as to each pursuant to R.C. 2941.25(B), this
        court adopts the following guidelines

        (a) Where the restraint or movement of the victim is merely incidental to a separate
        underlying crime, there exists no separate animus sufficient to sustain separate
        convictions; however, where the restraint is prolonged, the confinement is
        secretive, or the movement is substantial so as to demonstrate a significance
        independent of the other offense, there exists a separate animus as to each offense
        sufficient to support separate convictions;

        (b) Where the asportation or restraint of the victim subjects the victim to a
        substantial increase in risk of harm separate and apart from that involved in the
        underlying crime, there exists a separate animus as to each offense sufficient to
        support separate convictions.

Id. at syllabus.
        {¶43} We find this court’s decision in State v. Widner, 8th Dist. Cuyahoga No. 95147,

2011-Ohio-1364, to be instructive in the present instance. In Widner, the defendant offered to

take his victim to a carnival and treat him to unlimited rides.       The facts in Widner were as

follows:

        After a few rides, Widner suggested they go out to eat and shopping for video
        games before returning to the carnival. Widner and the victim left the carnival in
        Widner’s van and went out to eat. After dinner, they went shopping at several
        stores, but instead of buying video games, Widner purchased a tote bag.

        When they returned to the van after shopping, Widner told the boy he had a gun
        and then, after forcing him to undress, tied his limbs together with duct tape.
        Widner then drove the victim to his apartment, forced him to get into the tote bag,
        and then left him in the van while he got a dolly. When he returned to the van,
        Widner put the tote bag, with the child inside, onto the dolly and took the child into
        his apartment. Once inside the apartment, Widner removed the duct tape and raped
        the boy.

        At his apartment, Widner threatened the victim with a knife and forced him to stay
        there overnight. In the morning, he raped the boy again. Widner then ordered the
        victim back into the tote bag and took him back to his van on the dolly. Widner
        drove the victim around and finally dropped him off in his neighborhood, where he
        eventually found his way back home.

Id. at ¶ 6-8.

        {¶44} This court held that the initial kidnapping wherein Widner lured the victim away

from the carnival under false pretenses was not allied with the kidnappings by force to facilitate

the rapes.      Id. at ¶ 19.   We explained that the initial kidnapping involved asportation by

deception while the subsequent kidnappings involved asportation by force.              Id. at ¶ 21.

Widner’s conduct in luring the victim away from the carnival was different than that involved in

subsequently restraining and confining him by force. Thus, we concluded that the kidnapping

counts did not involve the same conduct. Id. at ¶ 24. See also State v. Ware, 63 Ohio St.2d 84,

406 N.E.2d 1112 (1980) (defendant’s kidnapping conviction for luring his victim to his apartment
by promising the use of a telephone he did not have was not allied with the asportation incident to

the rape he committed when the victim refused his advances and he carried her to an upstairs

bedroom); State v. DePina, 21 Ohio App.3d 91, 486 N.E.2d 1155 (9th Dist.1984) (defendant’s

kidnapping conviction for inducing his victim out of a bar and into a parking lot by deception was

not allied with the force and asportation involved with his subsequent act of dragging her into a

wooded area and raping her).

       {¶45} The holdings of Widner, Ware and DePina are supported by the explanation

provided by Justice O’Donnell in his concurring opinion in Johnson, where he explained:

       [I]f the state presented evidence that a defendant lured a victim to his home by
       deception, for example, and then raped that victim, an indictment may contain
       separate counts for the rape and for the kidnapping. In this hypothetical, * * * the
       luring of the victim by deception and the separate act of rape —results in two
       offenses being committed separately; therefore, the indictments may contain counts
       for both offenses and the defendant may be convicted of both.

State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, ¶ 81 (O’Donnell, J.,

concurring in judgment and syllabus). (Footnotes omitted).

       {¶46} Based on the above authority we find that his two kidnapping charges in this case

should not merge. Tate’s actions in luring B.P. away from the library to a secluded location

where he himself admitted he requested oral sex, were distinct from the force he subsequently

used to facilitate the gross sexual imposition.

       {¶47} Although the two kidnapping counts do not merge, we do agree that Tate’s second

kidnapping, wherein he used force to compel B.P. to her knees and contact his penis, should have

merged with the offenses of gross sexual imposition and public indecency. The force used in

that kidnapping charge was necessary to accomplish the gross sexual imposition. Indeed, the

force element of both crimes refers to the same conduct and Tate committed the offenses
simultaneously and with the same animus.

       {¶48} We also find that Tate’s public indecency and gross sexual imposition counts should

have merged. Tate exposed his penis to B.P. in the course of, and as a necessary function of

committing, a gross sexual imposition.     A gross sexual imposition wherein a defendant causes

another to unwillfully touch his penis necessarily involves an act of public indecency in violation

of R.C. 2907.09. In this instance Tate committed both offenses simultaneously, with the same

course of conduct and with the same animus. We find them to be allied offenses in this instance.

       {¶49} Finally we note that Tate has not presented any argument in support of merging his

conviction for importuning in violation of R.C. 2907.07(B) with the above offenses. However,

Tate himself admitted in his testimony that he verbally requested B.P. perform oral sex on him.

We find this verbal act to be distinct from Tate’s conduct in forcing B.P. to touch his penis with

her hand and find merger inappropriate for the importuning charge.

       {¶50} Tate’s fourth assignment of error is overruled in part and sustained in part.

       {¶51} Tate’s fifth assignment of error states:

       The trial court erred in failing to inform appellant of court costs at sentencing, then
       imposing them in its sentencing entry.

       {¶52} A trial court cannot impose court costs on a defendant solely through a journal

entry. State v. Moore, 8th Dist. Cuyahoga No. 100401, 2014-Ohio-2979, ¶ 31, citing State v.

Grice, 8th Dist. Cuyahoga No. 97046, 2012-Ohio-1938, ¶ 57-59. Court costs must also be

imposed during the sentencing hearing. Id.     The Ohio Supreme Court has held that a failure to

impose costs at sentencing constitutes error because the defendant has no opportunity to have

those costs waived. State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278, ¶ 22.

In this case, the state concedes that the trial court made no mention of court costs at the sentencing
hearing but imposed them in Tate’s sentencing entry.           In light of this error, Tate’s fifth

assignment of error is sustained.

       {¶53} Tate’s sixth assignment of error states:

       The trial court erred when it failed to make statutorily necessitated findings before
       imposing a seven year sentence of imprisonment.

       {¶54} Tate argues that the trial court failed to properly consider the seriousness and

recidivism factors of R.C. 2929.12 at sentencing, failed to make findings pursuant to that statute

and abused its discretion.

       {¶55} This court no longer applies the abuse of discretion standard of State v. Kalish, 120

Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, when reviewing a felony sentence. State v. A.H.,

8th Dist. Cuyahoga No. 98622, 2013-Ohio-2525, ¶ 7. Instead, we follow the standard of review

set forth in R.C. 2953.08(G)(2), which provides in relevant part:

       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.

       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 for 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:

       (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;

       (b) That the sentence is otherwise contrary to law.

R.C. 2953.08(G)(2).

       {¶56} A sentence is not clearly and convincingly contrary to law where the trial court

considers the purposes and principles of sentencing under R.C. 2929.11 as well as the seriousness
and recidivism factors listed in R.C. 2929.12, properly applies postrelease control and sentences a

defendant within the permissible statutory range. A.H. at ¶ 10, citing Kalish.

       {¶57} Under R.C. 2929.12(A), trial courts must consider a nonexhaustive list of factors,

including the seriousness of the defendant’s conduct, the likelihood of recidivism, and “any other

factors that are relevant to achieving those purposes and principles of sentencing.”

       {¶58} The sentencing court is not required, however, to engage in any factual findings

under R.C. 2929.11 or 2929.12. State v. Bement, 8th Dist. Cuyahoga No. 99914, 2013-Ohio-5437,

¶ 17; State v. Combs, 8th Dist. Cuyahoga No. 99852, 2014-Ohio-497, ¶ 52. While trial courts

must carefully consider the statutes that apply to every felony case, it is not necessary for the trial

court to articulate its consideration of each individual factor as long as it is evident from the

record that the principles of sentencing were considered. State v. Roberts, 8th Dist. Cuyahoga No.

89236, 2008-Ohio-1942, ¶ 10.        Instead, the trial court still has the discretion to determine

whether the sentence satisfies the overriding purpose of Ohio’s sentencing structure. Bement at ¶

17, citing State v. Jones, 12th Dist. Butler No. CA2012-03-049, 2013-Ohio-150, ¶ 49.

       {¶59} The record in this case reflects that the trial court did, in fact, consider R.C. 2929.12

in sentencing Tate. The trial court’s sentencing entry clearly indicates that the court considered

“all required factors of law.” The trial court allowed Tate and his counsel to advocate for a lesser

sentence. The trial court noted that Tate had a prior conviction for unlawful sexual conduct with

a minor. Furthermore, instead of showing any genuine remorse for his offenses Tate continued

to place blame on the victim at sentencing. Tate’s argument that the trial court failed to consider

R.C. 2929.12 is without merit.

       {¶60} Tate’s sixth assignment of error is overruled.

       {¶61} The judgment of the trial court is affirmed in part and reversed in part.
       {¶62} Accordingly, we vacate Tate’s sentences for kidnapping in Count 2, gross sexual

imposition, and public indecency. Case is remanded to the trial court with instructions to merge

those convictions and allow the state to elect under which count to proceed to sentencing. Case

further remanded to allow for Tate to move the court for a waiver of the payment of court costs.

It is ordered that appellee and appellant share the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common pleas court

to carry this judgment into execution. The defendant’s conviction having been affirmed in part,

any bail pending appeal is terminated.        Case remanded to the trial court for execution of

sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules

of Appellate Procedure.



EILEEN A. GALLAGHER, JUDGE

MARY J. BOYLE, A.J., and
MARY EILEEN KILBANE, J., CONCUR
