[Cite as State v. Stigall, 2019-Ohio-1263.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                      CHAMPAIGN COUNTY

 STATE OF OHIO                                     :
                                                   :
          Plaintiff-Appellee                       :   Appellate Case No. 2018-CA-18
                                                   :
 v.                                                :   Trial Court Case No. 2017-CR-78
                                                   :
 CURTIS L. STIGALL                                 :   (Criminal Appeal from
                                                   :   Common Pleas Court)
          Defendant-Appellant                      :
                                                   :

                                              ...........

                                              OPINION

                                Rendered on the 5th day of April, 2019.

                                              ...........

JANE A. NAPIER, Atty. Reg. No. 0061426, Champaign County Prosecutor’s Office,
Appellate Division, 200 North Main Street, Urbana, Ohio 43078
      Attorney for Plaintiff-Appellee

WILLIAM O. CASS, Atty. Reg. No. 0034517, 135 West Dorothy Lane, Suite 117, Dayton,
Ohio 45429
      Attorney for Defendant-Appellant

                                              .............
                                                                                        -2-


DONOVAN, J.



       {¶ 1} Defendant-appellant Curtis L. Stigall appeals his conviction for one count of

operating a vehicle under the influence of alcohol, a drug of abuse or a combination of

them, a misdemeanor of the first degree; four counts of vehicular assault, all felonies of

the fourth degree; and one count of tampering with evidence, a felony of the third degree.

Stigall filed a delayed notice of appeal with this Court on May 30, 2018, which we

sustained.

       {¶ 2} The incident which forms the basis for Stigall’s convictions occurred on

October 8, 2016, when Stigall was travelling eastbound in his motor vehicle on U.S.

Highway 36 in Cable, Champaign County, Ohio. By his own admission, Stigall had been

celebrating his birthday at a bar in Urbana, Ohio, from approximately 1:00 p.m. until 10:00

p.m. that day and was heavily intoxicated. At some point, Stigall drove his vehicle left of

the center line and crashed into another vehicle head-on. The vehicle was being driven

by Kelsey Thomas. Also in Thomas’s vehicle at the time of accident were her boyfriend,

Chris Borders, her nine-year old son, her four-year old daughter, and her three-month old

daughter. While the infant was secured in a child’s car seat, no one else in the vehicle

was wearing a seat belt. A third vehicle driven by Shane Herbert crashed into the rear

of Thomas’s vehicle.

       {¶ 3} Police arrived at the scene of the accident and closed off the roadway.

Upon being questioned by the police, Stigall initially agreed to provide a urine sample at

the scene. However, Stigall destroyed the urine sample before providing it to the police.

Stigall’s blood alcohol level was later determined to be .240, three times the legal limit,
                                                                                       -3-


and a toxicology report indicated that Stigall had barbiturates in his system. The record

established that Stigall did not have a prescription for barbiturates. Stigall suffered a

broken left hand and some abdominal bruising in the accident.

       {¶ 4} As result of the accident, Thomas suffered four broken ribs, a broken pelvis,

a broken hip, two broken wrists, a shattered right knee, a collapsed lung, and two

fractured ankles.1 Thomas’s son suffered two broken legs and a brain bleed. The older

daughter suffered a skull fracture and a broken collarbone; the infant daughter was not

injured in the crash. Borders suffered an acute brain injury, a dislocated hip, facial

fractures, and lacerations of his spleen, kidney, and liver which required surgery. As a

result of the acute brain injury, Borders cannot move his arms and legs, eats through a

feeding tube, and breathes with the aid of a respirator. Borders’s doctors were unsure if

he would ever regain his cognitive and/or motor skills. Herbert, the driver of the third

vehicle, was not injured in the accident.

       {¶ 5} On April 6, 2017, Stigall was indicted for two counts of operating a vehicle

under the influence of alcohol, a drug of abuse or a combination of them, in violation of

R.C. 4511.19(A)(1)(a)(G)(1)(b); four counts of aggravated vehicular assault, in violation

of R.C. 2903.08(A)(1)(a)(B)(1); four counts of vehicular assault, in violation of R.C.

2903.08(A)(2)(b)(C)(2), and one count of tampering with evidence, in violation of R.C.

2921.12(A)(1)(B). At his arraignment on April 26, 2017, Stigall pled not guilty to all the

charges in the indictment, and the trial court placed him on electronic home detention

pending trial.


1Thomas was also found to have blood alcohol level of .178, over twice the legal limit.
As a result of her intoxication, Thomas was charged with and convicted of child
endangering and operating a vehicle under the influence (OVI).
                                                                                            -4-


       {¶ 6} On July 17, 2017, Stigall pled guilty to one count of operating a vehicle under

the influence (Count I); four counts of vehicular assault (Counts VII – X); and one count

of tampering with evidence (Count XI), in return for dismissal of the remaining charges.

The trial court found Stigall guilty and ordered the Adult Probation Department to prepare

a presentence investigation report (PSI). At Stigall’s disposition on September 6, 2017,

the trial court sentenced him as follows: Count I, six months in the Tri-County Regional

Jail; Count VII, 18 months in prison; Count VIII, 18 months in prison; Count IX, 15 months

in prison; Count X, 15 months in prison; and Count XI, nine months in prison. The trial

court ordered that the sentences imposed for Counts VII, VIII, IX, and X be served

consecutively to one another but concurrently to the sentences imposed for Counts I and

XI, for an aggregate sentence of 66 months in prison.

       {¶ 7} It is from this judgment that Stigall now appeals.

       {¶ 8} Stigall’s sole assignment of error is as follows:

       THE TRIAL COURT ERRED WHEN IT SENTENCED THE APPELLANT

       TO 66 MONTHS AND IMPOSED CONSECUTIVE SENTENCES.

       {¶ 9} In his assignment, Stigall contends that the trial court erred when it ordered

that the sentences for Counts VII-X be served consecutively. Specifically, Stigall argues

that the record fails to support the imposition of consecutive sentences.

       {¶ 10} In reviewing felony sentences, appellate courts must apply the standard of

review set forth in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-

1002, 59 N.E.3d 1231, ¶ 9. Under R.C. 2953.08(G)(2), an appellate court may increase,

reduce, or modify a sentence, or it may vacate the sentence and remand for resentencing,

only if it “clearly and convincingly” finds either (1) that the record does not support certain
                                                                                          -5-


specified findings or (2) that the sentence imposed is contrary to law.

       {¶ 11} As this Court has previously noted:

       “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 or more than minimum

       sentences.” State v. King, 2013-Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.).

       However, in exercising its discretion, a trial court must consider the statutory

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

       2929.11 and R.C. 2929.12. State v. Leopard, 194 Ohio App.3d 500, 2011-

       Ohio-3864, 957 N.E.2d 55, ¶ 11 (2d Dist.), citing State v. Mathis, 109 Ohio

       St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38.

State v. Armstrong, 2d Dist. Champaign No. 2015-CA-31, 2016-Ohio-5263, ¶ 12.

       {¶ 12} In general, it is presumed that prison terms will be served concurrently. R.C.

2929.41(A); State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 23

(“judicial fact-finding is once again required to overcome the statutory presumption in

favor of concurrent sentences”). However, R.C. 2929.14(C)(4) permits a trial court to

impose consecutive sentences if it finds that (1) consecutive sentencing is necessary to

protect the public from future crime or to punish the offender, (2) consecutive sentences

are not disproportionate to the seriousness of the offender's conduct and to the danger

the offender poses to the public, and (3) any of the following applies:

       (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
                                                                                   -6-


was under post-release control for a prior offense.

(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.

(c) The offender's history of criminal conduct demonstrates that consecutive

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

offender.

{¶ 13} At Stigall’s sentencing hearing, the trial court stated the following:

The Court: * * * I think the thing that makes it difficult for this Court is the

fact that this is your second OVI. And while your PSI indicates that you

haven’t had any involvement with the court system in the last five years,

having a second OVI is a difficult thing for the Court to accept. But the

Court also recognizes that Kelsey Thomas also had her second OVI result

– as a result of this offense.

***

       [The] Court reviewed the pre-sentence investigation report, the

written impact statement marked as Court Exhibit 1 and 2, and letters

written by or behalf [sic] of the Defendant marked A through E. With regard

to pre-sentence findings, the Court finds that Defendant did not violate

bond. And that he had an Ohio Risk Assessment Score of 15, which is

considered moderate. Court finds that Counts One, Seven, Eight, Nine,
                                                                                  -7-


Ten, and Eleven are not allied offenses of similar import and do not merge.

       In imposing sentence, the Court considered and applied the

purposes and principles of sentencing as set forth by [R.C.] 2929.11

Divisions A, B, and C. The Court also considered the seriousness of the

conduct, likelihood of recidivism, and lack of service in the Armed Forces.

       With regard to more serious factors, the Court finds that the victim of

the offenses suffered serious physical harm as a result of the offense. That

the Defendant was unlawfully intoxicated during the operation of the motor

vehicle. The Defendant’s blood alcohol content was .240 by weight per

unit volume of alcohol in the Defendant’s whole blood.               That the

Defendant’s conduct at the scene destroyed evidence that could have been

used to prove his level of intoxication closer to the actual incident. The

destruction allowed Defendant’s true blood alcohol to further metabolize

before toxicology examination could take place.         That the Defendant

caused an accident that resulted, not only in the collision with one vehicle,

but caused an otherwise innocent third vehicle to collide with the vehicles.

That the Defendant has a prior OVI conviction. And that by third party

accounts there is no indication that the victim driver entered the Defendant’s

lane of travel prior to the collision.

       With regard to the less serious factors, the Court finds that the victim

facilitated the offense. To wit, the victim driver’s blood alcohol level was

.170 [sic] by weight per unit volume of alcohol in the victim’s whole blood.

That the victim driver has a prior OVI conviction.        That it is unknown
                                                                                  -8-


whether the victim driver could have avoided the accident. * * * Court also

finds as less serious that the victim driver did not restrain the two child

occupants with seat belts, which logically and reasonably exacerbated the

injuries suffered by the children.

       The Court could, I guess, make the same conclusion with the

unrestraint of Kelsey Thomas and Chris Borders.          But when the Court

announces sentence, the Court also takes into account that the injuries

suffered by Ms. Thomas and Mr. Borders were more significant and,

therefore, the sentence that is being handed down is higher than the

sentence involving the children.

       The Court concludes that factors establishing the Defendant’s

conduct is more serious outweigh factors establishing Defendant’s conduct

is less serious. With regard to recidivism and more likely to commit future

crimes, the Court finds that Defendant was previously adjudicated a

delinquent child and has a history of criminal convictions. He has not been

rehabilitated to a satisfactory degree. And he has not responded favorably

to sanctions previously imposed for criminal convictions. And he has a

prior OVI conviction.

       With regard to less likely to commit future crimes, the Court finds that

Defendant led a law-abiding life for a significant number of years. The

Court concludes that factors establishing Defendant’s recidivism is more

likely outweigh factors establishing Defendant’s recidivism is less likely.

***
                                                                                        -9-


             With regard to the [R.C] 2929.13(B)(1)(b) findings, the Court only

      finds one factor present. And that is the offense is not a qualifying – well,

      I’ll read the entire thing. If the offense is a qualifying assault offense that

      the Defendant caused serious physical harm to another person while

      committing the offense and that the offense is not a qualifying assault

      offense, the Defendant caused physical harm to another person while

      committing the offense. It is that factor that the Court believes gives the

      Court discretion to consider the possibility of a prison term.

      ***

             The sentences in Counts Seven, Eight, Nine, and Ten are

      consecutive to one another but concurrent to Count One and Eleven for a

      total sentence of 66 months to the Ohio Department of Correction.

             In imposing consecutive sentences the Court finds that consecutive

      sentencing is necessary to protect the public from future crime or to punish

      the Defendant.    Consecutive sentences are not disproportionate to the

      seriousness of the Defendant’s conduct and to the danger that the

      Defendant poses to the public. And 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 reflect the seriousness of

      the Defendant’s conduct.

Sentencing Tr. 33, 39-43, 45-46.
                                                                                           -10-


       {¶ 14} Before imposing sentence, the trial court indicated that it had received and

reviewed Stigall’s PSI.     The PSI included a statement of the facts underlying the

offenses, police reports/probable cause affidavits, Stigall's version of the events, the

injuries suffered by the victims, victim impact statements, descriptions of Stigall's juvenile

adjudications and prior adult convictions, Stigall's social history (his upbringing, health,

employment, financial situation, substance abuse history), a copy of the indictment, the

Ohio Risk Assessment System report (indicating a final risk level of “moderate”), and

some of Border's medical records. The court also heard statements from defense

counsel, the prosecutor, Borders’ sister, and Stigall. Specifically, the record establishes

that Stigall had juvenile adjudications for one count of criminal damaging (misdemeanor

of the second degree) and one count of disorderly conduct (a minor misdemeanor).

Stigall had prior adult convictions for disorderly conduct, telecommunications

harassment, and most significantly, OVI dating back to 2011. We note that Stigall’s PSI

indicated that his blood alcohol level in the 2011 OVI was found to be .224, almost three

times the legal limit.

       {¶ 15} On the record before us, the trial court appears to have considered the

statutory criteria that apply to every felony offense, including those set out in R.C. 2929.11

and R.C. 2929.12. The trial court's sentences were within the statutory range and, given

Stigall's conduct as a juvenile and since becoming an adult, we cannot conclude that the

trial court's imposition of prison sentences for the instant offenses was clearly and

convincingly unsupported by the record.

       {¶ 16} Additionally, the trial court made the requisite findings to support the

imposition of consecutive sentences. Specifically, the trial court found that consecutive
                                                                                          -11-


sentences were necessary to protect the public from future crime and to punish Stigall,

and that they were not disproportionate to the seriousness of Stigall's conduct and to the

danger he posed to the public. The trial court further found that the offenses were

committed as part of a course of conduct and the harm caused by these offenses was so

great or unusual that no single prison term adequately reflected the seriousness of his

conduct. Specifically, as a result of Stigall’s high level of intoxication, he drove his

vehicle left of the center line and crashed head-on into the vehicle driven by Thomas. A

third vehicle driven by Herbert unavoidably crashed into the rear of Thomas’s vehicle.

       {¶ 17} As previously stated, Thomas and two of her children suffered severe

injuries as a result of the accident. An infant child was not injured in the crash ostensibly

because she was secured in a car seat. Most significant are the injuries Borders suffered

in the accident. Borders received an acute brain injury, a dislocated hip, facial fractures,

and lacerations of the spleen, kidney, and liver, which required surgery. As a result of

the brain injury, Borders remained in a vegetative state. Borders is fed through a tube,

and he breathes with the assistance of a ventilator. While the trial court considered

Thomas’s intoxication and the fact that everyone in the vehicle (except for the infant) was

not wearing a seatbelt, the court ultimately found those factors to be outweighed by

Stigall’s conduct and the substantial harm caused by the collision.

       {¶ 18} We note that Stigall does not contend that the trial court was incorrect in

any of its findings. As is obvious from its comments during the sentencing hearing, the

trial court spent a great deal of time explaining its rationale for the sentence it ultimately

imposed.    Upon review, we cannot conclude that the trial court's course-of-conduct

finding was clearly and convincingly unsupported by the record. Accordingly, the trial
                                                                                         -12-


court did not err when it imposed consecutive sentences.

       {¶ 19} Stigall’s sole assignment of error is overruled.

       {¶ 20} Stigall’s assignment of error having been overruled, the judgment of the trial

court is affirmed.

                                     .............



HALL, J. and TUCKER, J., concur.



Copies sent to:

Jane A. Napier
William O. Cass
Hon. Nick A. Selvaggio
