[Cite as State v. Keen, 2015-Ohio-3200.]


                                        COURT OF APPEALS
                                       KNOX COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. William B. Hoffman, P. J.
        Plaintiff-Appellee                        Hon. John W. Wise, J.
                                                  Hon. Patricia A. Delaney, J.
-vs-
                                                  Case No. 14 CA 25
ZACHARIAH KEEN

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 14 CR 23


JUDGMENT:                                       Vacate Sentence and Remand



DATE OF JUDGMENT ENTRY:                        August 10, 2015



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

CHARLES T. MCCONVILLE                          NICHOLAS J. TESTA
PROSECUTING ATTORNEY                           DOUGLAS W. SHAW
JOSEPH D. SAKS                                 SHAW AND TESTA
ASSISTANT PROSECUTOR                           555 City Park Avenue
117 East High Street, Suite 234                Columbus, Ohio 43215
Mount Vernon, Ohio 43050
Knox County, Case No. 14 CA 25                                                             2

Wise, J.

       {¶1}   Defendant-appellant Zachariah Keen appeals his conviction and sentence

on one count of felonious assault entered in the Knox County Court of Common Pleas

Court following a guilty plea.

       {¶2}   Plaintiff-appellee is the State of Ohio.

                       STATEMENT OF THE FACTS AND CASE

       {¶3}   On the night of January 17, 2014, H.H. (D.O.B. 07/24/2013), who was less

than six months old at the time, suffered second degree burns to his left arm and third

degree burns to his left leg. (T. at 7-8). The skin and muscle tissue on the child's left leg

was burned to the bone. As a result of the child's injuries, his leg was amputated. H.H.

has since undergone nine surgeries. (T. at 12).

       {¶4}   With regard to the above incident, Appellant Zachariah Keen made three

statements to law enforcement officers and one statement to Lisa Lyons, the Adult

Court Services Officer who compiled his PSI. In his first two statements to law

enforcement, Appellant asserted that although he had been babysitting the child when

the child was burned, he was either watching television or in the bathroom when the

burn occurred and did not know how the child was burned. (PSI at 3-4). In his third

statement to law enforcement, and in his statement to Ms. Lyons, Appellant admitted he

had burned the child, but he stated that it had not been intentional. (PSI at 5, 9).

       {¶5}   According to Appellant, he had placed seven ounces of water in the child's

bottle and had put the bottle in the microwave to heat it up. (PSI at 5, 9). Then, as

Appellant was carrying the bottle to the child, who was in his exerciser, Appellant

tripped and spilled the water on the child. (PSI at 5, 9). Appellant stated that he changed
Knox County, Case No. 14 CA 25                                                               3


the child’s clothes and that the child did not appear to be hurt: his skin was only red and

was not blistered. (PSI at 6). Appellant stated that he applied a cold cloth and baby

lotion to the affected area. (PSI at 9).

       {¶6}   On      January   28,    2014,   members     of   law   enforcement,     several

representatives of Knox County Children's Services, and two Children's Hospital

physicians met at the Children's Hospital Child Advocacy Center in Columbus. (PSI at

6-7). The physicians determined that Appellant's account of the incident was

inconsistent with the child's injuries for the following reasons:

       {¶7}   (1) there was no sign of a spatter pattern to the child's burns that would be

consistent with an accidental spill;

       {¶8}   (2) the child's burns were likely caused by a long period of contact with a

hot item or liquid;

       {¶9}   (3) if the child had been burned by hot water, seven ounces of hot water

would not have been enough to cause such severe burns;

       {¶10} (4) if Appellant had dropped water on the child, it would have hit the child's

arm before hitting his leg, and the child's arm would have been burned more severely

than his leg; and

       {¶11} (5) because of the severity of the burns, blistering would have appeared

within seconds following contact with the hot item or liquid. (PSI at 6).

       {¶12} The Children's Hospital physicians advised that the child’s burns were the

worst the physicians had observed on a living child. (PSI at 6-8). They showed law

enforcement images of injuries the child had sustained prior to sustaining the burns to

his left arm and left leg: bruising to the child's chin; a fracture to the child's right tibia;
Knox County, Case No. 14 CA 25                                                            4


and fractures to the child's ribs. (PSI at 7). The physicians dated the fractures to seven

to ten days prior to the child's arrival at Children's Hospital for his burns. Id

        {¶13} On February 18, 2014, Appellant was indicted on one count of felonious

assault, a felony of the second degree, and two counts of endangering children, felonies

of the second and third degree.

        {¶14} On October 7, 2014, Appellant pleaded guilty to count one, felonious

assault.

        {¶15} On November 13, 2014, Appellant filed a Sentencing Memorandum, to

which Appellant attached twenty-three letters written by Appellant's friends and family

members.

        {¶16} On November 14, 2014, Appellant filed a motion for an order limiting

victim impact statements at sentencing, or, in the alternative, permitting Appellant to call

witnesses to offer mitigating evidence on his behalf.

        {¶17} This matter came before the trial court for sentencing on November 14,

2014.

        {¶18} At the sentencing hearing, defense counsel indicated to the trial court that

Appellant wished to call a couple of family members to testify on Appellant's behalf. (T.

at 5). However, defense counsel called no such witnesses.

        {¶19} The State called two members of the victim's family to testify at

sentencing: Lora Miller, and Nicole Williams, the mother of Jessica H., who was the

victim's stepmother and who had custody of the victim at the time of sentencing. (T. at

6, 10). Ms. Miller read to the court her letter which Appellant had attached to his

Sentencing Memorandum. (T. at 6-10). Ms. Miller testified that Appellant loved the
Knox County, Case No. 14 CA 25                                                             5


victim; that Appellant was always there for Ms. Miller and the victim; that Appellant

provided for Ms. Miller and the victim; and that Appellant did not intentionally harm the

victim. Id.

         {¶20} Ms. Williams read from a statement which the victim's stepmother had

prepared. (T. at 10). The victim was in severe pain after his leg was amputated. (T. at

12). He suffered bruises two and a half months prior to the incident, and his right tibia

was fractured ten days prior to the incident. Id. The victim had night terrors as a result of

the incident and will continue to suffer for the rest of his life. (T. at 12-13).

         {¶21} Appellant also addressed the court on his own behalf and stated that the

incident was "a very tragic accident" and that he was "very sorry." (T. at 17).

         {¶22} Before the trial court sentenced Appellant, it engaged in the following

exchange with Adult Court Services Officer Lisa Lyons:

         {¶23} THE COURT: * * * Lisa, correct me if I'm wrong, there's two problems here

today that I'm facing. The examination of [the victim] indicated that there was possibly

prior abuse. Is that correct? There was [sic] some healed ribs, I believe-

         {¶24} LISA LYONS: Right. According to the information.

         {¶25} THE COURT: -that might have been fractured within a week prior to this

event here. And you made the statement that [Appellant] apologizes because he wasn't

immediately candid. To this day, he hasn't been candid. He hasn't told us what

happened that night, and I don't think he intends to. That's all I have to say regarding

[Appellant's] position on this matter. (T. at 17-18).

         {¶26} The trial court sentenced Appellant to a term of imprisonment of seven (7)

years.
Knox County, Case No. 14 CA 25                                                           6


       {¶27} Appellant now appeals, assigning the following errors for review:

                              ASSIGNMENTS OF ERROR

       {¶28} “I. APPELLANT'S SENTENCE IS IN VIOLATION OF APPELLANT'S DUE

PROCESS RIGHTS AND IS CONTRARY TO LAW BECAUSE THE TRIAL COURT

ERRED IN RELYING ON UNSUBSTANTIATED EVIDENCE OUTSIDE THE RECORD

INVOLVING ALLEGED OTHER ACTS WHEN IMPOSING APPELLANT'S SENTENCE.

       {¶29} “II. THE APPELLANT WAS DENIED HIS RIGHT TO DUE PROCESS BY

THE TRIAL COURT ALLOWING MULTIPLE VICTIM IMPACT STATEMENTS AND BY

DENYING      APPELLANT      EQUAL      OPPORTUNITY        TO    PRESENT      MITIGATING

EVIDENCE AT SENTENCING.”

                                                I.

       {¶30} In his First Assignment of Error, Appellant argues that his sentence is

contrary to law because the trial court relied on unsubstantiated facts outside of the

record. We agree.

       {¶31} In State v. Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912, ¶4, the Supreme

Court of Ohio set forth the following two-step approach in reviewing a sentence:

       {¶32} In applying Foster [State v., 109 Ohio St.3d 1, 2006–Ohio–856] to the

existing statutes, appellate courts must apply a two-step approach. First, they must

examine the sentencing court's compliance with all applicable rules and statutes in

imposing the sentence to determine whether the sentence is clearly and convincingly

contrary to law.

       {¶33} If this first prong is satisfied, the trial court's decision shall be reviewed

under an abuse-of-discretion standard. In order to find an abuse of discretion, we must
Knox County, Case No. 14 CA 25                                                          7


determine the trial court's decision was unreasonable, arbitrary or unconscionable and

not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450

N.E.2d 1140 (1983).

      {¶34} This Court reaffirmed our reliance on the Kalish standard of review in

State v. Bailey, 5th Dist. Ashland No. 14–COA–008, 2014–Ohio–5129, ¶ 18–24.

      {¶35} Upon review, we find the record demonstrates that the trial court

considered the overriding purposes of felony sentencing under R.C. §2929.11 as well

as the seriousness and recidivism factors under R.C. §2929.12 when imposing

sentence. The court also imposed a sentence of 7 years, which is within the statutory

range (2, 3, 4, 5, 6, 7, or 8 years) for a second degree felony under R.C.

§2929.14(A)(1). Appellant has not claimed error as to the imposition of post-release

control. Accordingly, we conclude that Appellant's sentence is not clearly and

convincingly contrary to law.

      {¶36} We next address Appellant's contention that the court erred in considering

possible prior abuse which constituted “improper factual findings as to unrelated,

unsubstantiated other acts which were outside the record.”

      {¶37} As set forth above, immediately prior to imposing sentence, the trial court

stated: “… there's two problems here today that I'm facing. The examination of [the

victim] indicated that there was possibly prior abuse. Is that correct? There was [sic]

some healed ribs, I believe --- that might have been fractured within a week prior to this

event here.”
Knox County, Case No. 14 CA 25                                                           8


      {¶38} Initially, we note that the statements regarding possible prior abuse and

injuries were contained in the PSI, which counsel for Appellant had reviewed prior to

sentencing and did not raise any objections thereto.

      {¶39} Generally, the trial court is not limited to only considering the facts related

directly to the conviction. State v. Bowsher, 186 Ohio App.3d 162, 2010–Ohio–951, 926

N.E.2d 714 (2d Dist.). Courts have historically been permitted to consider hearsay

evidence, evidence of an offender's criminal history, the facts concerning charges

dismissed, and even offenses for which charges were not filed, but were addressed in

the presentence investigation (“PSI”). Id. When imposing sentence, the trial court may

consider and refer at sentencing to information contained in the PSI, any statement from

the defendant or his victims, or any other evidence in the record. State v. Mathis, 109

Ohio St.3d 54, 2006-Ohio-855, ¶ 37. There is no statutory guidance for what information

may be contained in the PSI. State v. Hutton (1990), 53 Ohio St.3d 36, 43. However,

R.C. §2929.12(A)(1) requires that the report include the circumstances of the crime, the

defendant's prior criminal record and “such information about defendant's social history

* * * as may be helpful in imposing or modifying sentence * * *.” Id. The Ohio Supreme

Court has “held that the concept of ‘social history’ is broad enough to include allegations

of wrongdoing even though the wrongdoing did not result in criminal charges.” Id., citing

State v. Cooey, 46 Ohio St.3d 20, 35, 544 N.E.2d 895 (1989); see, also, State v. Eley,

77 Ohio St.3d 174, 1996-Ohio-323.

      {¶40} However, it has also been held that the ability of the trial court to consider

evidence of other offenses for which there was no conviction is not completely

unfettered. See State v. Blake, 3d Dist. Union No. 14–03–33, 2004–Ohio–1952. “The
Knox County, Case No. 14 CA 25                                                            9


trial court's consideration cannot indicate a bias toward the defendant indicating that the

trial court believes that the defendant is guilty of the charges which were dismissed.” Id.

at ¶5. “[W]e have recognized that a trial court is not vested with authority to consider

allegations of conduct that have not been adjudicated in a court of law.” State v. Hartley,

3d Dist. Union No. 14–11–29, 2012–Ohio–4108, ¶ 33. “Allowing a sentence to be

imposed on the basis of such conduct ‘would permit a defendant to be punished for

offenses without a trial or an opportunity to defend oneself by cross-examining the

witnesses.’ ” State v. Montgomery, 3d Dist. Crawford No. 3–08–10, 3–08–11, 2008–

Ohio–6182, ¶ 13 (quoting State v. Park, 3d Dist. Crawford No. 3–06–14, 2007–Ohio–

1084).

         {¶41} Based on the foregoing, we find the trial court was clearly permitted to

consider any allegations of Appellant's previous wrongdoings. However, in the present

case, there is absolutely no evidence that H.H.'s prior injuries were caused by

Appellant.

         {¶42} While this Court finds that the record and the severity of H.H.'s injuries

fully support the sentence imposed by the trial court, due to the trial court's reference to

H.H.'s prior injuries immediately prior to its imposition of sentence, this Court is unable

to determine whether the trial court took such prior injuries into consideration when it

imposed sentence. For that reason alone, we remand this matter for re-sentencing

without consideration of the prior abuse and injuries.

         {¶43} Appellant’s First Assignment of Error is sustained.
Knox County, Case No. 14 CA 25                                                            10


                                                 II.

       {¶44} In his Second Assignment of Error, Appellant argues the trial court erred in

allowing multiple victim impact statements and by denying Appellant the opportunity to

present mitigating evidence at sentencing. We disagree.

       {¶45} R.C. 2929.19(A) provides in part:

              At the hearing, the offender, the prosecuting attorney, the victim or

        the victim's representative in accordance with section 2930.14 of the

        Revised Code, and, with the approval of the court, any other person may

        present information relevant to the imposition of sentence in the case.

       {¶46} R.C. §2930.01 defines “victim's representative” as “a member of the

victim's family or another person who pursuant to the authority of section 2930.02 of the

Revised Code exercises the rights of a victim under this chapter.”

       {¶47} R.C. §2930.02(A) allows a representative to speak on behalf of the victim

if the victim is a minor or deceased.

       {¶48} As stated in the above recitation of the facts, two individuals addressed

the court prior to sentencing: Lora Miller, the child's mother, and Nicole Williams, the

child's step-grandmother. (T. at 6, 10).

       {¶49} Upon review of their statements, we find that while not officially designated

by the court as the "victim's representative", Ms. William's statement, which was actually

a statement prepared by the child's stepmother, was, in effect, a victim impact

statement as she testified as to the child's injuries, his pain following the amputation, the

night terrors he suffers, the nine (9) surgeries he has had at the time of sentencing
Knox County, Case No. 14 CA 25                                                          11


including skin grafts, the need for a new prosthetic limb every 2-3 years and the

limitations he will be facing in life.

       {¶50} Ms. Miller's statement, however, was not a victim impact statement. Her

statement was a reading of the letter she wrote, which was one of the 23 letters

attached in support of Appellant's own Sentencing Memorandum. Ms. Miller's letter

contained only mitigating evidence in support of Appellant's good character, her belief in

his innocence, and his love for her and the child.

       {¶51} Based on the foregoing, we find the trial court did not abuse its discretion

in allowing both statements to be read prior to sentencing. We further find that mitigating

evidence was presented on Appellant's behalf via Ms. Miller's statement.

       {¶52} Appellant’s Second Assignment of Error is overruled.

       {¶53} For the foregoing reasons, Appellant’s sentence is vacated and this matter

is hereby remanded to the trial court for re-sentencing in accordance with the law and

this opinion.

By: Wise, J.

Hoffman, P. J., and

Delaney, J., concur.



JWW/d 0710
