[Cite as State v. Silknitter, 2017-Ohio-327.]




                        IN THE COURT OF APPEALS OF OHIO
                            THIRD APPELLATE DISTRICT
                                 UNION COUNTY




STATE OF OHIO,

         PLAINTIFF-APPELLEE,                                CASE NO. 14-16-07

         v.

WILLIAM MICHAEL SILKNITTER,                                 OPINION

         DEFENDANT-APPELLANT.




                   Appeal from Union County Common Pleas Court
                             Trial Court No. 14-CR-0163

                                        Judgment Affirmed

                             Date of Decision: January 30, 2017




APPEARANCES:

         Mark J. Miller for Appellant

         Terry L. Hord for Appellee
Case No. 14-16-07


PRESTON, P.J.

        {¶1} Defendant-appellant, William Michael Silknitter (“Silknitter”), appeals

the March 3, 2016 judgment entry of sentence of the Union County Court of

Common Pleas. For the reasons that follow, we affirm.

        {¶2} This case stems from allegations that Silknitter sexually abused his

stepdaughter, D.D., between 2002 and 2014, when D.D. was between the ages of 7

and 19 years old. (See Doc. No. 114). After initially indicting Silknitter on

September 2, 2014, the Union County Grand Jury on July 10, 2015 indicted him on

64 counts. (Doc. Nos. 1, 87). Those 64 counts consisted of the following: 6 counts

of rape in violation of R.C. 2907.02(A)(1)(b), (B), first-degree felonies; 5 counts of

gross sexual imposition in violation of R.C. 2907.05(A)(4); 27 counts of rape in

violation of R.C. 2907.02(A)(2), (B),1 first-degree felonies; 12 counts of sexual

battery in violation of R.C. 2907.03(A)(5), (B), third-degree felonies; 12 counts of

gross sexual imposition in violation of R.C. 2907.05(A)(1), (C)(1),2 fourth-degree

felonies; 1 count of intimidation of an attorney, victim, or witness in a criminal case

in violation of R.C. 2921.04(B)(1), (D), a third-degree felony; and 1 count of

intimidation of an attorney, victim, or witness in a criminal case in violation of R.C.




1
  One of the counts of rape, Count 12, did not include a reference to R.C. 2907.02(B); however, Count 12
indicated that it was based on a violation of R.C. 2907.02(A)(2).
2
  One of the counts of gross sexual imposition, Count 14, did not include a reference to R.C. 2907.05(C)(1);
however, Count 14 indicated that it was based on a violation of R.C. 2907.05(A)(1).

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2921.04(B)(2), (D). (Doc. No. 87). Silknitter initially pled not guilty to the counts.

(See Doc. No. 98).

         {¶3} On January 19, 2016, Silknitter and the State entered into a negotiated

plea agreement. (Doc. No. 167). Under the agreement, Silknitter entered pleas of

guilty to six counts of sexual battery in violation of R.C. 2907.03(A)(5), (B), third-

degree felonies. (Id.). At the request of the State, the trial court dismissed the

remaining counts of the superseding indictment.3 (Id.).

         {¶4} The trial court held a sentencing hearing and a sex-offender-registration

hearing on March 3, 2016. (Mar. 3, 2016 Tr. at 4). The trial court sentenced

Silknitter to 48 months in prison on each of the six counts of sexual battery, to be

served consecutively for a total term of imprisonment of 288 months. (Id. at 88);

(Doc. No. 172). The trial court also classified Silknitter as a Tier III sex offender.

(Mar. 3, 2016 Tr. at 92); (Doc. No. 173). The trial court filed its judgment entries

of sentence and sex-offender classification on March 3, 2016. (Doc. Nos. 172, 173).

         {¶5} On March 30, 2016, Silknitter filed a notice of appeal. (Doc. No. 178).

He raises seven assignments of error for our review. We will address together

Silknitter’s first, second, third, and fourth assignments of error, followed by his fifth,

sixth, and seventh assignments of error individually.




3
 The parties refer to the superseding indictment as a “supersedes [sic] indictment.” (Appellant’s Brief at 1);
(Appellee’s Brief at 1).

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                             Assignment of Error No. I

       The trial court failed to consider factors enumerated in R.C.
       2929.12(E) which, if applied to Appellant, would show that he is
       not likely to commit future crimes; therefore, the trial court’s
       sentence was unreasonable, contrary to law and inconsistent with
       the purposes of felony sentencing.

                            Assignment of Error No. II

       The trial court’s order imposing consecutive sentences on
       Appellant is not supported by the facts in this case and is therefore
       contrary to law.

                            Assignment of Error No. III

       The trial court’s sentence in this case is contrary to law because it
       is neither proportional or [sic] consistent with sentences imposed
       on similar offenders who committed similar crimes.

                            Assignment of Error No. IV

       The trial court committed reversible error at sentencing by
       presuming that Appellant was guilty of committing sex crimes
       which were dismissed as part of Appellant’s plea agreement and
       for considering other dismissed conduct.

       {¶6} In his first, second, third, and fourth assignments of error, Silknitter

challenges his sentence on various grounds. We will first address Silknitter’s

argument under his first assignment of error that the trial court failed to consider the

R.C. 2929.12(E) factors. Then, we will consider his argument under his fourth

assignment of error that the trial court erred by considering dismissed offenses.

Third, we will address Silknitter’s argument under his second assignment of error

that the trial court erred in imposing consecutive sentences. Finally, we will

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consider his argument under his third assignment of error that his sentence is

contrary to law because it is not proportional or consistent with sentences imposed

on similar offenders who committed similar crimes.

         {¶7} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence

“only if it determines by clear and convincing evidence that the record does not

support the trial court’s findings under relevant statutes or that the sentence is

otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,

¶ 1.4 Clear and convincing evidence is that “‘which will produce in the mind of the

trier of facts a firm belief or conviction as to the facts sought to be established.’”

Id., quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the

syllabus.

         {¶8} We begin our analysis by addressing Silknitter’s first assignment of

error, in which he argues that the trial court failed to consider the R.C. 2929.12(E)

factors. When sentencing an offender, the trial court must consider the overall

purposes of sentencing under R.C. 2929.11 and the factors relating to the

seriousness of the offense and recidivism of the offender under R.C. 2929.12. State

v. Magallanes, 3d Dist. Putnam No. 12-14-02, 2014-Ohio-4878, ¶ 21, citing State


4
  In its brief, the State relies on State v. Kalish to support its view of the standard of review this court should
apply on appeal. (Appellee’s Brief at 5-7, citing State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912.)
However, after Kalish was released, the legislature altered R.C. 2953.08(G)(2) to specifically indicate that,
on appeal, a defendant must show by clear and convincing evidence that his sentence is not supported by the
record. Based on the statutory change, the Supreme Court of Ohio stated that the Kalish standard is no longer
applicable in reviewing sentences, and we strongly encourage attorneys to stop citing it for its now-invalid
standard of review. See State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1.

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v. Smith, 3d Dist. Auglaize No. 2-06-37, 2007-Ohio-3129, ¶ 26, citing State v.

Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, ¶ 38. “Although it is required to

consider R.C. 2929.11 and 2929.12, the trial court is not required to use specific

language regarding its consideration of those statutes.” Id., citing Smith at ¶ 26 and

State v. Fletcher, 3d Dist. Auglaize No. 2-13-02, 2013-Ohio-3076, ¶ 22. Indeed,

where the trial court explicitly states that it considered the requisite statutory factors,

it is not required to elaborate upon them so long as the record indicates that the trial

court considered those factors and the sentence is within the appropriate statutory

range. State v. Shreves, 3d Dist. Auglaize No. 2-16-11, 2016-Ohio-7824, ¶ 20,

citing State v. Dayton, 3d Dist. Union No. 14-16-05, 2016-Ohio-7178, ¶ 21, citing

State v. Castle, 2d Dist. Clark No. 2016-CA-16, 2016-Ohio-4974, ¶ 30.

       {¶9} A review of the record indicates that the trial court considered the R.C.

2929.12(E) factors. In sentencing Silknitter, the trial court stated:

       The Court has considered the record, the oral statements, the victim

       impact statement, the presentence report that we’ve corrected here

       today, the letters submitted in support of the defendant, the

       defendant’s sentencing memorandum filed with the Court on March

       2, 2016, the purposes and principles of sentencing under Revised

       Code Section 2929.11, the seriousness and recidivism factors relevant

       to the offense and the offender pursuant to Revised Code Section


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       2929.12, and the need for deterrence, incapacitation, rehabilitation,

       and restitution.

(Emphasis added.) (Mar. 3, 2016 Tr. at 85). See Magallanes at ¶ 22. In its judgment

entry of sentence, the trial court made a substantially similar statement. (Doc. No.

172). In it, the trial court stated that it “considered * * * the seriousness and

recidivism factors relevant to the offense and offender pursuant to R.C. 2929.12.”

(Id.). See Magallanes at ¶ 22. These statements demonstrate that the trial court

considered the R.C. 2929.12(E) factors as required. See Shreves at ¶ 20; State v.

Parson, 3d Dist. Auglaize No. 2-10-27, 2011-Ohio-168, ¶ 16. Moreover, Silknitter

concedes that his sentence is within the statutory range. See Magallanes at ¶ 23;

Shreves at ¶ 20. Therefore, we need not proceed further. See Shreves at ¶ 20 (“[T]he

trial court did explicitly state that it had considered the requisite statutes both on the

record and in its sentencing entry. The sentences for both crimes were also within

the statutory range. Thus we need not even proceed further.”). We accordingly

reject Silknitter’s argument that the trial court failed to consider the R.C. 2929.12(E)

factors.

       {¶10} In his fourth assignment of error, Silknitter argues that the trial court

erred because it “incorrectly and impermissibly found that sexual conduct between

[Silknitter] and his stepdaughter occurred more than what [Silknitter] plead guilty

to.” (Appellant’s Brief at 11). To the extent Silknitter argues that the trial court


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erred by considering “any dismissed conduct or charges for purposes of sentencing,”

we reject his argument. (Id. at 10). “[E]vidence of other crimes, including crimes

that never result in criminal charges being pursued, or criminal charges that are

dismissed as a result of a plea [agreement], may be considered at sentencing.”

(Emphasis deleted.) State v. Ford, 3d Dist. Union No. 14-10-07, 2010-Ohio-4069,

¶ 12, citing State v. Starkey, 7th Dist. Mahoning No. 06 MA 110, 2007-Ohio-6702,

¶ 17, citing State v. Cooey, 46 Ohio St.3d 20, 35 (1989). Accordingly, we reject

Silknitter’s argument that the trial court should not have considered dismissed

counts.

       {¶11} Silknitter also argues under his fourth assignment of error that the trial

court “espoused its own personal belief and demonstrated bias against” him, based

on the trial court’s statements at the sentencing hearing. (Appellant’s Brief at 11).

Specifically, Silknitter takes issues with the following statement by the trial court

concerning the number of incidents of sexual conduct between Silknitter and D.D.:

“If we only consider the defendant’s statements in this case, and not the statements

of – that we’ve heard here today, the sexual conduct between the two occurred many

more times than the six offenses that the defendant has admitted by his plea of

guilty.” (Mar. 3, 2016 Tr. at 85). Silknitter also disputes the following statement

by the trial court: “How many times this happened is unknown with certainty. But

it is certainly, by the defendant’s own admission, many, many times.” (Id. at 87).


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According to Silknitter, “The trial court did not corroborate its belief that sexual

conduct between [Silknitter] and D.D. occurred more than five of [sic] six times.”

(Appellant’s Brief at 11).

       {¶12} In the trial court’s statements above at the sentencing hearing, the trial

court refers to statements Silknitter made during a recorded interview with

detectives on August 13, 2014. (Id. at 80). (See also Doc. No. 172 at 10). The

parties jointly submitted and stipulated to the admissibility of that recorded

interview at a February 11, 2015 hearing on Silknitter’s motion to suppress

statements he made. (Mar. 3, 2016 Tr. at 80). (See also Doc. No. 172 at 10). We

conclude that the trial court was allowed to consider that recording in sentencing

Silknitter. R.C. 2929.19(B)(1) sets forth what information the trial court “shall

consider” at the sentencing hearing, before imposing sentence. Among those items,

the trial court “shall consider the record.” R.C. 2929.19(B)(1). See also State v. El-

Jones, 9th Dist. Summit No. 26136, 2012-Ohio-4134, ¶ 44. The recording of

Silknitter’s interview—as an exhibit from the suppression hearing—is part of the

record. See El-Jones at ¶ 44. Moreover, Silknitter directed us to no authority

suggesting the trial court was not allowed to consider the recording of the interview

in sentencing him. See id. (“Mr. El-Jones has not pointed this Court to any authority

standing for the proposition that the court could not consider the recording it

reviewed at the suppression stage as part of ‘the record’ it was required to consider


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before sentencing Mr. El-Jones.”). Accordingly, the trial court properly considered

the recording of Silknitter’s interview with detectives.

       {¶13} The trial court cited Silknitter’s interview statements extensively in

support of the trial court’s finding that Silknitter engaged in sexual conduct with

D.D. in excess of the six offenses to which he pled guilty. (See Mar. 3, 2016 Tr. at

80-84); (Doc. No. 172 at 10-16). Indeed, Silknitter ignores the interview recording

and its contents in his appellate brief and does not address whether the trial court

properly tallied the number of incidents to which Silknitter admitted in his

interview. In fact, Silknitter failed to provide this court with a transcript of the

February 11, 2015 hearing on Silknitter’s motion to suppress. “App.R. 9 requires

an appellant to provide the appellate court with transcripts of the proceedings that

are necessary to review the merits of his appeal.” State v. Brown, 3d Dist. Marion

No. 9-10-12, 2010-Ohio-4546, ¶ 8, citing App.R. 9(B). Absent a transcript of the

suppression hearing, including the exhibit containing Silknitter’s interview

recording, we presume validity of the trial court’s findings based on Silknitter’s

admissions in the interview recording. See State v. Getzinger, 3d Dist. Henry No.

7-12-06, 2013-Ohio-2146, ¶ 25. We accordingly reject Silknitter’s argument that

the trial court “espoused its own personal belief,” “demonstrated bias against” him,

and “did not corroborate” its findings at sentencing. (Appellant’s Brief at 11).




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       {¶14} We next address Silknitter’s second assignment of error, in which he

argues that the record does not support the trial court’s imposition of consecutive

sentences. As to the imposition of consecutive sentences, R.C. 2953.08(G)(2)(a)

provides that an appellate court—after reviewing the record, including the findings

underlying the sentence given by the trial court—may modify or vacate the sentence

if the appellate court “clearly and convincingly finds * * * [t]hat the record does not

support the sentencing court’s findings under * * * [R.C. 2929.14(C)(4)].” State v.

Dixson, 3d Dist. Seneca No. 13-13-53, 2014-Ohio-4539, ¶ 51, citing State v.

Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, ¶ 28-29.

       {¶15} R.C. 2929.14(C)(4), which governs the imposition of consecutive

sentences, provides:

       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:




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      (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.

      (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.

The trial court must state the required findings at the sentencing hearing prior to

imposing consecutive sentences and incorporate those findings into its sentencing

entry. State v. Sharp, 3d Dist. Putnam No. 12-13-01, 2014-Ohio-4140, ¶ 50, citing

Bonnell at ¶ 29. A trial court “has no obligation to state reasons to support its

findings” and is not “required to give a talismanic incantation of the words of the




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statute, provided that the necessary findings can be found in the record and are

incorporated into the sentencing entry.” Bonnell at ¶ 37.

       {¶16} In this case, Silknitter does not dispute that the trial court made the

necessary findings under R.C. 2929.14(C)(4). Rather, he argues that “[t]he trial

court does not have a factual basis on which to reasonably and legitimately base its

finding that consecutive sentences were not disproportionate to the seriousness of

the defendant’s conduct and to the danger the defendant poses to the public.”

(Appellant’s Brief at 6). Specifically, he argues that the trial court should not have

relied on the testimony of Union County Deputy Sheriff Jeff Stiers (“Stiers”) to

support its conclusion that Silknitter engaged in sexual conduct with D.D. in excess

of the six offenses to which he pled guilty. Even if we disregard Stiers’s testimony,

Silknitter once again fails to address Silknitter’s admissions in his recorded

interview, which was made an exhibit at the suppression hearing. As we stated

above, because Silknitter failed to provide a transcript of the suppression hearing,

we presume validity of the trial court’s findings.

       {¶17} Silknitter also appears to argue under his second assignment of error

that the trial court should not have relied on Stiers’s testimony that Silknitter first

engaged in sexual conduct with D.D. when she was seven years old. The trial court

noted that Stiers testified to his determination that, based on his investigation, the

abuse began when D.D. was seven years old. (See Doc. No. 172 at 8). Silknitter


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cited no authority indicating that the trial court was not allowed to consider Stiers’s

testimony.   Indeed, as we stated above, the trial court was free to consider

information related to “other crimes, including crimes that never result in criminal

charges being pursued, or criminal charges that are dismissed as a result of a plea

[agreement].” (Emphasis deleted.) Ford, 2010-Ohio-4069, at ¶ 12. Moreover,

rather than relying on Stiers’s testimony in sentencing Silknitter, the trial court

relied on Silknitter’s admission, based on his plea of guilty to one of the sexual

battery counts—Count 35—that he “engaged in sexual conduct with the victim

when she was 17.” (Doc. No. 172 at 19). For these reasons, Silknitter’s arguments

regarding the trial court’s consecutive-sentences findings are baseless, and we reject

them. After reviewing the record, including the findings underlying the sentence

given by the trial court, we cannot clearly and convincingly find that the record does

not support the trial court’s findings under R.C. 2929.14(C)(4).

       {¶18} Finally, we address Silknitter’s third assignment of error, in which he

argues that his sentence is contrary to law because it is not proportional or consistent

with sentences imposed on similar offenders who committed similar crimes. R.C.

2929.11(B) provides, in part, “A sentence imposed for a felony shall be * * *

consistent with sentences imposed for similar crimes committed by similar

offenders.” “If a defendant fails to argue to the trial court that his sentence is not

consistent with or proportionate to sentences imposed for similar crimes committed


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by similar offenders, then the defendant waives that issue for appeal.” State v.

Norman, 3d Dist. Seneca No. 13-13-50, 2014-Ohio-3010, ¶ 17, citing State v. Ewert,

5th Dist. Muskingum No. CT2012-0002, 2012-Ohio-2671, ¶ 31. Our review of the

record reveals that Silknitter failed to argue the consistent-sentences issue to the trial

court. Therefore, he waived this issue for appeal. See id. Nevertheless, in the

interests of justice, we will consider this argument.

       {¶19} “[A] consistent sentence is not achieved from a case-by-case

comparison, but by the trial court’s proper application of the statutory sentencing

guidelines.” State v. Hites, 3d Dist. Hardin No. 6-11-07, 2012-Ohio-1892, ¶ 16,

citing State v. Hall, 179 Ohio App.3d 727, 2008-Ohio-6228, ¶ 10 (10th Dist.).

“Thus, a sentencing court is not required to make a comparison of the current case

to previous cases, but is required to appropriately apply the statutory sentencing

guidelines in order to maintain consistency.” Id., citing State v. Saur, 10th Dist.

Franklin No. 10AP-1195, 2011-Ohio-6662, ¶ 37. “Therefore, an offender cannot

simply present other cases in which an individual convicted of the same offense

received a lesser sentence to demonstrate that his sentence is disproportionate.” Id.,

citing State v. Hayes, 10th Dist. Franklin No. 08AP-233, 2009-Ohio-1100, ¶ 10.

Rather, “‘[a] defendant claiming inconsistent sentencing must show the trial court

failed to properly consider the statutory sentencing factors and guidelines in R.C.

2929.11 and 2929.12.’” State v. Richards, 3d Dist. Union No. 14-15-27, 2016-


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Ohio-1293, ¶ 7, quoting State v. Sutton, 8th Dist. Cuyahoga No. 97132, 2012-Ohio-

1054, ¶ 18.

       {¶20} In this case, Silknitter argues, “The trial court failed to impose a

‘consistent’ sentence on [Silknitter] because the trial court failed to indicate that it

engaged in an exhaustive analysis of all the applicable statutory factors under

2929.12 (E) [sic].” (Appellant’s Brief at 8). We reject this argument because, as

we stated above, the record reflects that the trial court properly considered the R.C.

2929.12(E) factors. See Shreves, 2016-Ohio-7824, at ¶ 20. Silknitter also cites

several appellate decisions concerning cases that he says “indicate that [his]

sentence is inconsistent with sentences imposed on similar offenders and that the

trial court committed plain error when it sentenced [Silknitter] to serve 24 years

imprisonment.” (Appellant’s Brief at 9). Silknitter’s reliance on those cases is

misplaced because, as stated above, “a consistent sentence is not achieved from a

case-by-case comparison.” Hites at ¶ 16. For these reasons, we reject Silknitter’s

argument that his sentence is contrary to law because it is not proportional or

consistent with sentences imposed on similar offenders who committed similar

crimes.

       {¶21} Silknitter’s first, second, third, and fourth assignments of error are

overruled.




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                           Assignment of Error No. V

      The trial court committed reversible error by failing to make a
      definitive finding in regard to appellant’s objections to factual
      statements made in the presentence investigation report.

      {¶22} In his fifth assignment of error, Silknitter argues that the trial court

failed to properly address three objections Silknitter made to the contents of the

presentence investigation (“PSI”) report.

      {¶23} R.C. 2951.03 provides a defendant an opportunity to object to the

information contained within the PSI report:

      (2) Prior to sentencing, the court shall permit the defendant and the

      defendant’s counsel to comment on the presentence investigation

      report and, in its discretion, may permit the defendant and the

      defendant’s counsel to introduce testimony or other information that

      relates to any alleged factual inaccuracy contained in the report.

      ***

      (5) If the comments of the defendant or the defendant’s counsel, the

      testimony they introduce, or any of the other information they

      introduce alleges any factual inaccuracy in the presentence

      investigation report or the summary of the report, the court shall do

      either of the following with respect to each alleged factual inaccuracy:

      (a) Make a finding as to the allegation;


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       (b) Make a determination that no finding is necessary with respect

       to the allegation, because the factual matter will not be taken into

       account in the sentencing of the defendant.

R.C. 2951.03(B)(2), (5).

       {¶24} In this case, Silknitter made three objections to the factual accuracy of

the PSI report. (See Doc. No. 170); (Mar. 3, 2016 Tr. at 5). At the outset of the

sentencing hearing, the trial court addressed Silknitter’s three objections, ordering

the PSI report corrected or supplemented in response to each objection. (See Mar.

3, 2016 Tr. at 5-16). Silknitter’s trial counsel indicated that the trial court adequately

addressed Silknitter’s objections to the PSI report:

       [Trial Court]:          Okay. [Defense Counsel], are you satisfied that

                               I’ve adequately addressed the objections?

       [Defense Counsel]:      Yes, I am, your Honor.

(Id. at 16). Based on Silknitter’s agreement, through counsel, that the trial court

adequately addressed Silknitter’s objections to the PSI report, Silknitter waived any

arguments related to alleged inaccuracies in the PSI report and to the trial court’s

treatment of those inaccuracies. See State v. Richardson, 2d Dist. Montgomery No.

23879, 2013-Ohio-1374, ¶ 17.

       {¶25} Silknitter’s fifth assignment of error is overruled.




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                             Assignment of Error No. VI

       The Ohio incest statute violates appellant’s constitutional rights.

       {¶26} In his sixth assignment of error, Silknitter argues that R.C.

2907.03(A)(5), Ohio’s incest statute, is unconstitutional. Specifically, he argues

that it “fails the strict scrutiny test that is used for evaluating Due Process.”

(Appellant’s Brief at 14). Silknitter argues, alternatively, that R.C. 2907.03(A)(5)

violates his constitutional rights “because it fails the rational basis test that it [sic]

used for evaluating Due Process.” (Id. at 16). Essentially, Silknitter argues that the

statute is unconstitutional because it “leaves no room for a consensual sexual

relationship between adults who happen to be related through a stepparent-stepchild

relationship,” and the state “has no legitimate interest in the relationship between

consenting adults.” (Id.).

       {¶27} There is a question whether Silknitter waived these arguments by

entering his pleas of guilty in this case. Compare State v. Yodice, 11th Dist. Lake

No. 2001-L-155, 2002-Ohio-7344, ¶ 27 with State v. Wilson, 58 Ohio St.2d 52

(1979), paragraph one of the syllabus. Nevertheless, assuming without deciding

that Silknitter did not waive these arguments by entering his pleas of guilty, we can

easily dispose of this assignment of error.

       {¶28} R.C. 2907.03(A)(5) provides, “No person shall engage in sexual

conduct with another, not the spouse of the offender, when * * * [t]he offender is


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the other person’s natural or adoptive parent, or a stepparent, or guardian, custodian,

or person in loco parentis of the other person.” (Emphasis added.) The Supreme

Court of Ohio addressed the constitutionality of R.C. 2907.03(A)(5) in State v.

Lowe. 112 Ohio St.3d 507, 2007-Ohio-606. First, contrary to Silknitter’s strict-

scrutiny argument, the Supreme Court of Ohio held in Lowe that “a rational-basis

test should be used to analyze the statute” because a stepparent does not have a

fundamental right under the United States Constitution to engage in consensual

sexual activity with his or her stepchild. Id. at ¶ 24. Applying a rational-basis test,

the Supreme Court of Ohio held, “R.C. 2907.03(A)(5) is constitutional as applied

to consensual sexual conduct between a stepparent and adult stepchild, since it bears

a rational relationship to the state’s legitimate interest in protecting the family.” Id.

at syllabus. Based on the Supreme Court of Ohio’s holding in Lowe, we reject

Silknitter’s arguments under his sixth assignment of error.

       {¶29} Silknitter’s sixth assignment of error is overruled.

                            Assignment of Error No. VII

       The Tier III sex-offender requirements imposed on appellant are
       unconstitutional because they constitute cruel and unusual
       punishment and because Senate Bill 10 violates the separation of
       powers doctrine.

       {¶30} In his seventh assignment of error, Silknitter argues that the

requirements imposed on him as part of his classification as a Tier III sex offender

violate the prohibition of cruel and unusual punishment contained in the Eighth

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Amendment to the United States Constitution. He also argues that the sex-offender-

registration legislation, Am.Sub.S.B. No. 10 (“S.B. 10”), codified in R.C. Chapter

2950, violates the separation-of-powers doctrine because “[t]he legislature has

effectively limited the power of the judiciary by determining, conclusively, the sex

offender classification of certain offenders.” (Appellant’s Brief at 19).

       {¶31} We summarily reject Silknitter’s argument that the requirements

accompanying his Tier III sex offender classification violate the Eighth

Amendment. This court recently held—in a case that began in juvenile court but

was transferred to criminal court—that Tier III registration requirements do not

constitute cruel and unusual punishment. See State v. Curtis, 3d Dist. Allen No. 1-

15-55, 2016-Ohio-6978, ¶ 72. See also State v. Moore, 2d Dist. Darke No. 2014-

CA-13, 2015-Ohio-551, ¶ 16 (“We have held that Ohio’s sex offender classification

law does not violate the Cruel and Unusual Punishment Clause.”), citing State v.

Blankenship, 2d Dist. Clark No. 2012-CA-74, 2014-Ohio-232, ¶ 10-11.

       {¶32} We also summarily reject Silknitter’s argument that S.B. 10 violates

the separation-of-powers doctrine. In a case involving the sexual-battery statute,

albeit a different subsection, this court concluded that S.B. 10, “as applied to those

convicted of sexual battery in violation of R.C. 2907.03(A)(2), does not violate the

separation of powers doctrine as it does not usurp the judiciary’s role in

administering justice.” State v. Ritchey, 3d Dist. Allen No. 1-15-80, 2016-Ohio-


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2878, ¶ 29. We adopt the reasoning from Ritchey and hold that S.B. 10, as applied

to those convicted of sexual battery in violation of R.C. 2907.03(A)(5), does not

violate the separation-of-powers doctrine. Ritchey at ¶ 24-29.

       {¶33} Silknitter’s seventh assignment of error is overruled.

       {¶34} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                 Judgment Affirmed

WILLAMOWSKI and SHAW, J.J., concur.

/jlr




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