[Cite as State v. Vanculin, 2012-Ohio-292.]




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

STATE OF OHIO                                        :
                                                     :     Appellate Case No. 2011-CA-8
        Plaintiff-Appellee                           :
                                                     :     Trial Court Case No. 10-CR-441
v.                                                   :
                                                     :
KYLE VANCULIN                                        :     (Criminal Appeal from
                                                     :     (Common Pleas Court)
        Defendant-Appellant                   :
                                                     :
                                                  ...........

                                                  OPINION

                             Rendered on the 27th day of January, 2012.

                                                  ...........

ROBERT E. LONG III, Atty. Reg. #0066796, Miami County Prosecutor’s Office, Miami
County Safety Building, 201 West Main Street, Troy, Ohio 45373
      Attorney for Plaintiff-Appellant

CHRISTOPHER R. BUCIO, Atty. Reg. #0076517, Roberts, Kelly & Bucio, 10 North Market
Street, Troy, Ohio 45373
        Attorney for Defendant-Appellee

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

FAIN, J.

        {¶ 1} Defendant-appellant Kyle Vanculin appeals from his sentence on his

conviction, following a no-contest plea, to four counts of Gross Sexual Imposition, in

violation of R.C. 2907.05(A)(4), felonies of the third degree. Vanculin contends that the trial
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court’s consideration of a victim impact statement, at the sentencing hearing, violated his

Confrontation Clause rights under Crawford v. Washington (2004), 541 U.S. 36, 124 S.Ct.

1354, 158 L.Ed.2d 177.

       {¶ 2} We conclude that Vanculin waived any claim that his Confrontation Clause

rights were violated when he failed to object at the sentencing hearing to the trial court’s

announced consideration of the victim impact statement.          Furthermore, the prejudicial

information that Vanculin claims was in the victim impact statement was actually contained in

the “details of offense” section of the pre-sentence investigation report, not in the victim

impact statement.

       {¶ 3} Accordingly, the judgment of the trial court is Affirmed.

                      I. Vanculin Pleads No Contest and Is Sentenced.

       {¶ 4} In January 2011, Vanculin was charged by information with four counts of

Gross Sexual Imposition, in violation of R.C. 2907.05(A)(4). The offenses, all of which

involved his daughter as victim, were alleged to have occurred in 1998, when she was less

than thirteen years old.

       {¶ 5} Vanculin pled no contest to the charges.            He chose to have himself

psychologically evaluated, and his evaluation was submitted to the trial court. The trial court

also had a pre-sentence investigation report, and a victim impact statement, which included a

handwritten statement signed by the victim.

       {¶ 6} At the sentencing hearing, the trial court heard from the State, and from

Vanculin and his counsel. Vanculin’s trial counsel indicated that he had had an opportunity

to review the pre-sentence investigation report. The trial court stated that it had considered
                                                                                            3


the pre-sentence investigation report, the psychological evaluation submitted by Vanculin, and

the victim impact statement. The trial court also stated that it had considered the purposes

and principles set forth in the felony sentencing statutes. The trial court stated its reasoning

in the record, and sentenced Vanculin to four one-year terms of imprisonment, to be served

consecutively, for a total of four years.

       {¶ 7} Vanculin appeals from his sentence.



                    II. Vanculin Waived Any Claim that Consideration of the

                         ictim Impact Statement, at Sentencing, Violated his

                     confrontation Clause Rights Under the Sixth Amendment.

       {¶ 8} Vanculin’s sole assignment of error is as follow:

       {¶ 9} “THE APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO

CONFRONTATION.”

       {¶ 10} The Sixth Amendment to the United States Constitution, made applicable to

the states by the Fourteenth Amendment, includes the following clause: “In all criminal

prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses

against him; * * * .” This includes the right to confront and to cross-examine anyone making

an out-of-court statement for testimonial purposes that is introduced at trial. Crawford v.

Washington (2004), 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177.

       {¶ 11} Vanculin contends that the trial court’s consideration, at the sentencing hearing,

of the victim impact statement, consisting largely of the victim’s handwritten statement, and

signed by her, violated his rights under the Confrontation Clause. While recognizing judicial
                                                                                            4


reluctance to apply the requirements of the Confrontation Clause to a sentencing hearing,

Vanculin argues that it should be applied.

        {¶ 12} In his brief, Vanculin details his argument that he was prejudiced by the trial

court’s consideration of the victim impact statement without any previous awareness by him

that it existed, or that the trial court would consider it:

        In the case at bar, the court failed to give deference to the psychological tests
        completed by Dr. Fred Sachs and relied heavily on the letter from the victim. The
        letter from the victim claimed the criminal activity had been going on for a period of
        nine years. Furthermore, the letter from the victim was fostered by the State and was
        for the purpose of furthering prosecution against the Appellant. Moreover, the
        Appellant was punished because of the statement being used against him that allegedly
        proved a past event. The Appellant previously had agreed and confessed to the
        victim’s initial claim that this only occurred on four separate occasions. The
        Appellant was never aware of the Victim’s Impact Statement until it was discussed by
        the Court at sentencing. The trial judge clearly admits to invoking a more serious
        sentence based on the letter from the victim, even though the statements contained
        therein were different from the victim’s previous statements. See Tr. 9-11. The trial
        judge stated[:] “And I know you may not want to acknowledge that, but your version
        of the even[t]s that took place were completely different from your daughter’s version
        of them. . . . The victim in this remembers it as a much prolonged series of events that
        occurred almost over nine years. And while you may only acknowledge . . . that it
        occurred a few times, because you were charged only four times in the indictment,
        it[’]s more serious than that, Mr. VanCulin.” T. 10. Because the testimony within
        the letter from the victim was used against the Appellant and he was unable to confront
        that witness on the discrepancies in her statement, the lower court has violated the
        Appellant’s Sixth Amendment right to confrontation.

(Omissions in original.)

        {¶ 13} Although Vanculin does not cite it, the trial court also referred, at sentencing,

to the fact that Vanculin made his victim feel guilty by telling her that if she told anyone, it

“would cause her brothers to be taken away.”

        {¶ 14} But none of the prejudicial information of which Vanculin complains is

contained in the victim impact statement. The victim impact statement does not describe the
                                                                                                 5


offenses in any way. It does not state that the conduct was ongoing over a period of nine

years, rather than four isolated instances. It also does not refer to Vanculin’s statement that

the victim’s brothers would be taken away if she told anyone about the abuse. All of these

facts, which the trial court did refer to at the sentencing hearing, are set forth in the “details of

the instant offense” section of the pre-sentence investigation report, which Vanculin’s trial

counsel acknowledged having reviewed before the sentencing hearing. These facts do appear

to have had the victim as their source, but they are not referred to in the victim impact

statement. They are set forth in the pre-sentence investigation report.

        {¶ 15} If Vanculin wished to object to the trial court’s consideration of the victim’s

version of events set forth in the pre-sentence investigation report – in the absence of his

opportunity to confront the victim – he had advance notice and an opportunity to object. He

did not do so. Therefore, he has waived all but plain error. To find plain error, we would

have to find that the result would clearly have been otherwise, had the error not occurred.

This would ordinarily be impossible to find in relation to a claimed violation of the

Confrontation Clause. Assuming, for purposes of analysis, that Vanculin had a right to

confront his victim for purposes of the sentencing hearing, concerning her differing account of

the offenses, as set forth in the pre-sentence investigation report, there is no way for us to

determine that the result would have been otherwise had he been accorded, and had he

exercised, that right.

        {¶ 16} As the State notes, there is a statutory right, under R.C. 2930.14(B), to respond

to a victim impact statement if it “includes new material facts.” But the victim impact

statement in this case did not set forth any facts concerning the nature of the offenses of which
                                                                                             6


Vanculin was convicted.      Indeed, the only aspect of the victim impact statement – as

contrasted with the victim’s version of events set forth in the pre-sentence investigation report

– to which the trial court referred at the sentencing hearing was that the victim was conflicted,

which is apparent from the victim’s recommendation as to sentence. But a recommendation

as to sentence is not testimonial in nature, is not a “new material fact,” and, in any event, is

not the subject of Vanculin’s complaint.

       {¶ 17} Vanculin’s sole assignment of error is overruled.

                                       III. Conclusion.

       {¶ 18} Vanculin’s sole assignment of error having been overruled, the judgment of the

trial court is Affirmed.

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

GRADY, P.J., and DONOVAN, J., concur.


Copies mailed to:

Robert E. Long III
Christopher R. Bucio
Hon. Christopher Gee
