[Cite as State v. Jones, 2017-Ohio-9020.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 105527




                                       STATE OF OHIO
                                                  PLAINTIFF-APPELLEE

                                            vs.

                                      CARDELL JONES
                                                  DEFENDANT-APPELLANT




                                       JUDGMENT:
                                  AFFIRMED; REMANDED



                                   Criminal Appeal from the
                           Cuyahoga County Court of Common Pleas
                        Case Nos. CR-16-610564-A and CR-16-610565-A

        BEFORE: S. Gallagher, J., Kilbane, P.J., and Blackmon, J.

        RELEASED AND JOURNALIZED: December 14, 2017
ATTORNEY FOR APPELLANT

Erin E. Hanson
McGinty Hilow & Spellacy Co., L.P.A
The Rockefeller Building, Suite 1300
614 W. Superior Avenue
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
By: Carl Mazzone
          Eben McNair
Assistant Prosecuting Attorneys
Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:

       {¶1} Cardell Jones appeals the imposition of consecutive sentences for three sex

offenses. We affirm.

       {¶2} The facts are not well developed. Jones is in his mid-thirties and met the

victim when dating and living with the victim’s mother. The victim was under the age of

16 during the time that Jones engaged in a two-and-one-half- year sexual relationship

with her, which resulted in the birth of two children. On those facts, Jones pleaded guilty

to two counts of sexual battery under R.C. 2907.03(A)(5), based on the fact that Jones is

the victim’s natural or adoptive parent, stepparent, guardian, custodian, or person in loco

parentis of the victim. Jones also pleaded guilty to unlawful sexual conduct with a minor

under R.C. 2907.04(A). All counts were felonies of the third degree, subject to a prison

term of up to five years.

       {¶3} Jones also had an unrelated weapons charge that carried a maximum one-year

sentence. Thus, as part of the plea deal, Jones faced a maximum of 16 years in prison if

all terms were imposed consecutive to the others. At sentencing, Jones contended that a

lengthy sentence should not be imposed because he has other children at home. The trial

court considered what was required by law and sentenced Jones to four years on each sex

offense, to be served consecutively, and 12 months on the weapons charge to be served

concurrently to all other prison terms — resulting in an aggregate prison term of 12 years.

 In his sole assignment of error, Jones claims that the consecutive sentencing findings are
not supported by the record because his sexual relationship with the victim was

consensual.

       {¶4} R.C. 2929.14(C)(4) authorizes the trial court to order consecutive sentences

if, as is pertinent to this case, consecutive service (1) is necessary to protect the public

from future crime or to punish the offender; (2) is not disproportionate to the seriousness

of the offender’s conduct and to the danger the offender poses to the public; and

additionally, (3) at least two of the multiple offenses were committed as part of one or

more courses of conduct, and the harm caused was so great or unusual that no single

prison term for any offense committed adequately reflects the seriousness of the

offender’s conduct. State v. Jones, 8th Dist. Cuyahoga No. 104152, 2016-Ohio-8145, ¶

5, citing State v. Smeznik, 8th Dist. Cuyahoga Nos. 103196 and 103197, 2016-Ohio-709,

¶ 6.

       {¶5} At the sentencing hearing, the trial court made all the required findings, and

Jones is not challenging that aspect of his sentences. Instead, Jones claims that the

record does not support the alternative findings under R.C. 2929.14(C)(4)(a)-(c), that the

harm caused by the offenses was so great or unusual that no single prison term adequately

reflected the seriousness of the offender’s conduct under R.C. 2929.14(C)(4)(b) or the

offender’s history of criminal conduct demonstrates the necessity of consecutive

sentences to protect the public from future crime under R.C. 2929.14(C)(4)(c). As will

be discussed, the record amply supports the former finding, and therefore, we need not

review the latter because any error in that respect would be harmless. Crim.R. 52(A).
Only one of the subdivision (a)-(c) findings is necessary to support consecutive service of

prison terms. R.C. 2929.14(C)(4). We do note that the trial court did not include the

subdivision (b) finding in the final sentencing entry, so we must remand for the limited

purpose of issuing a nunc pro tunc entry to reflect that which occurred at the sentencing

hearing.    State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659,

syllabus.

       {¶6} Jones claims that the two-and-one-half-year incestuous relationship with the

victim, who was under the age of 16 during the time, was consensual, so that the finding

under R.C. 2929.14(C)(4)(b) — that the harm caused by Jones’s conduct was not so great

or unusual that no single term adequately reflects the seriousness of Jones’s conduct — is

not supported by the record.          Jones’s argument demonstrates that he has failed to

comprehend the charges to which he pleaded guilty and the type of conduct that is

prohibited by law. Jones pleaded guilty to incestuous conduct with a child under the age

of 16.1 R.C. 2907.03(A)(5). “Consent” would not be considered a mitigating factor or a

defense in this case. State v. Lowe, 112 Ohio St.3d 507, 2007-Ohio-606, 861 N.E.2d

512, ¶ 14 (the incest statute is meant to protect children from adults with authority over

them); State v. Snuggs, 3d Dist. Henry Nos. 7-16-03 and 7-16-05, 2016-Ohio-5466, ¶ 8.




       1
         “Incestuous conduct is also included, though defined in broader terms [than] formerly, so as
to include not only sexual conduct by a parent with his child, but also sexual conduct by a step-parent
with his step-child, a guardian with his ward, or a custodian or person in loco parentis with his
charge.” 1974 Committee Comment to H 511, R.C. 2907.03.
       {¶7} Further, even if consent were relevant as a mitigating factor, there is no

evidence in the record that the sexual battery offenses involved consensual sexual

conduct. The state conceded that the conduct forming the basis of the separate and

distinct violation of the unlawful sexual conduct with a minor statute was consensual for

the purposes of the registration requirements for that offense, but the record is silent as to

the nature of the sexual conduct forming the basis of the sexual battery counts. In the

presentence investigation report, Jones claimed that the victim’s mother consented to

Jones’s sexual relationship with the victim. Nothing in the record demonstrates that the

victim consented to the sexual conduct underlying the sexual battery counts.

       {¶8} We cannot clearly and convincingly find that the record does not support the

findings under R.C. 2953.08(G). Jones engaged in a prolonged sexual relationship with

an underage victim under his care in some capacity, and moreover, he fathered two

children for whom the underage victim is responsible. This supports the finding that the

harm caused was so great and unusual that no single prison term adequately reflects

Jones’s conduct under R.C. 2929.14(C)(4)(b).          State v. Clyde, 6th Dist. Erie Nos.

E-16-045 and E-16-048, 2017-Ohio-8205, ¶ 14 (16-year, aggregate term of prison on four

counts of sexual battery in violation of R.C. 2907.03(A)(5) affirmed based on the number

of offenses committed against the young victim and the defendant’s failure to take

responsibility for the criminal conduct); see also State v. Nierman, 6th Dist. Ottawa No.

OT-15-020, 2017-Ohio-672, ¶ 2 (15-year aggregate term on three counts under R.C.

2907.03(A)(5) affirmed); State v. Harrington, 11th Dist. Trumbull No. 2006-T-0122,
2007-Ohio-5784, ¶ 26 (20-year, aggregate sentence affirmed for several counts, including

violations of R.C. 2907.03(A)(5)).

       {¶9} In this case, the victim was under Jones’s care, and the criminal conduct

repeatedly occurred over a lengthy period of time.        Further, Jones did not help his

situation when discussing the crimes with the probation department. In the presentence

investigation report, it was noted that Jones claimed that “he is only guilty of unlawful

sexual contact with a minor and not sexual battery or gross sexual imposition because the

victim’s mother gave her to him.” Jones also expressed his desire to withdraw his plea

because he was not guilty of the sexual battery counts to which he pleaded guilty. We

cannot clearly and convincingly find that the trial court’s findings are not supported by

this record. R.C. 2953.08(G).

       {¶10} The convictions are affirmed, but the case is remanded for the limited

purpose of issuing a nunc pro tunc entry to reflect the R.C. 2929.14(C)(4)(b) finding

made during the sentencing hearing.



       It is ordered that appellee recover from appellant 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, any bail pending appeal is terminated. Case remanded to the trial court

for correction and execution of sentence.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



SEAN C. GALLAGHER, JUDGE

MARY EILEEN KILBANE, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR
