[Cite as State v. Bunn, 2017-Ohio-2903.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


State of Ohio                                    Court of Appeals No. L-16-1089

        Appellee                                 Trial Court No. CR0201503183

v.

Joseph Bunn                                      DECISION AND JUDGMENT

        Appellant                                Decided: May 19, 2017

                                           *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.

        Jeremy W. Levy, for appellant.

                                           *****

        OSOWIK, J.

        {¶ 1} This is an appeal brought by appellant from the judgment of the Lucas

County Court of Common Pleas. In this case, appellant was indicted by the Lucas

County Grand Jury charging him with five counts of use of a minor in a nudity-oriented

material or performance, in violation of R.C. 2907.3232, a felony of the second degree.
       {¶ 2} The state of Ohio additionally filed an information against the appellant,

charging him with a violation of R.C. 2907.322, pandering sexually oriented matter

involving a minor, a felony of the fourth degree.

       {¶ 3} Appellant entered a plea of no contest to Count 1 of the indictment and to

Count 6, the information filed against him.

       {¶ 4} The trial court denied a request to continue sentencing.

       {¶ 5} Appellant was then sentenced to a term of imprisonment of 30 months on

Count 1 and a term of 17 months on Count 6. The court ordered appellant to serve these

terms consecutive to each other.

       {¶ 6} Appellant’s sole assignment of error is as follows:

              1) Appellant’s sentence is contrary to law.

       {¶ 7} Appellant also presents two issues that are interrelated. The first issue

argues that the trial court’s findings for consecutive sentencing are not supported by clear

and convincing evidence and the second issue argues that the trial court’s statement that it

considered R.C. 2929.11 and 2929.12 is not supported by the record. We shall consider

both issues simultaneously.

       {¶ 8} Appellant specifically contends that the court’s finding that consecutive

sentences were necessary to protect the public from future harm and the further finding

that consecutive sentences are not disproportionate to the seriousness of the offender’s

conduct are not supported by the record. He argues that a distinction should be made in

this case in that appellant was not accused of creating the material that was downloaded.




2.
       {¶ 9} R.C. 2953.08(G) compels appellate courts to modify or vacate sentences if

they find by clear and convincing evidence that the record does not support any relevant

findings under “division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of

section 2929.14, or division (I) of section 2929.20 of the Revised Code.”

       {¶ 10} Clear and convincing evidence is that measure or degree of proof which is

more than a mere “preponderance of the evidence,” but not to the extent of such certainty

as is required “beyond a reasonable doubt” in criminal cases, and which will produce in

the mind of the trier of facts a firm belief or conviction as to the facts sought to be

established. Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954).

       {¶ 11} The Supreme Court has recently held in State v. Marcum, 146 Ohio St.3d

516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 23:

              Nevertheless, it is fully consistent for appellate courts to review

       those sentences that are imposed solely after consideration of the factors in

       R.C. 2929.11 and 2929.12 under a standard that is equally deferential to the

       sentencing court. That is, an appellate court may vacate or modify any

       sentence that is not clearly and convincingly contrary to law only if the

       appellate court finds by clear and convincing evidence that the record does

       not support the sentence.




3.
     {¶ 12} R.C. 2929.11 states, in relevant part:

            (A) A court that sentences an offender for a felony shall be guided

     by the overriding purposes of felony sentencing. The overriding purposes

     of felony sentencing are to protect the public from future crime by the

     offender and others and to punish the offender using the minimum

     sanctions that the court determines accomplish those purposes without

     imposing an unnecessary burden on state or local government resources. To

     achieve those purposes, the sentencing court shall consider the need for

     incapacitating the offender, deterring the offender and others from future

     crime, rehabilitating the offender, and making restitution to the victim of

     the offense, the public, or both.

            (B) A sentence imposed for a felony shall be reasonably calculated

     to achieve the two overriding purposes of felony sentencing set forth in

     division (A) of this section, commensurate with and not demeaning to the

     seriousness of the offender’s conduct and its impact upon the victim, and

     consistent with sentences imposed for similar crimes committed by similar

     offenders.

            (C) A court that imposes a sentence upon an offender for a felony

     shall not base the sentence upon the race, ethnic background, gender, or

     religion of the offender.




4.
     {¶ 13} Further, R.C. 2929.12 states, in relevant part:

            (A) Unless otherwise required by section 2929.13 or 2929.14 of the

     Revised Code, a court that imposes a sentence under this chapter upon an

     offender for a felony has discretion to determine the most effective way to

     comply with the purposes and principles of sentencing set forth in section

     2929.11 of the Revised Code. In exercising that discretion, the court shall

     consider the factors set forth in divisions (B) and (C) of this section relating

     to the seriousness of the conduct, the factors provided in divisions (D) and

     (E) of this section relating to the likelihood of the offender’s recidivism,

     and the factors set forth in division (F) of this section pertaining to the

     offender’s service in the armed forces of the United States and, in addition,

     may consider any other factors that are relevant to achieving those purposes

     and principles of sentencing.

            (B) The sentencing court shall consider all of the following that

     apply regarding the offender, the offense, or the victim, and any other

     relevant factors, as indicating that the offender’s conduct is more serious

     than conduct normally constituting the offense:

            (1) The physical or mental injury suffered by the victim of the

     offense due to the conduct of the offender was exacerbated because of the

     physical or mental condition or age of the victim.




5.
            (2) The victim of the offense suffered serious physical,

     psychological, or economic harm as a result of the offense.

            (3) The offender held a public office or position of trust in the

     community, and the offense related to that office or position.

            (4) The offender’s occupation, elected office, or profession obliged

     the offender to prevent the offense or bring others committing it to justice.

            (5) The offender’s professional reputation or occupation, elected

     office, or profession was used to facilitate the offense or is likely to

     influence the future conduct of others.

            (6) The offender’s relationship with the victim facilitated the

     offense.

            (7) The offender committed the offense for hire or as a part of an

     organized criminal activity.

            (8) In committing the offense, the offender was motivated by

     prejudice based on race, ethnic background, gender, sexual orientation, or

     religion.

            (9) If the offense is a violation of section 2919.25 or a violation of

     section 2903.11, 2903.12, or 2903.13 of the Revised Code involving a

     person who was a family or household member at the time of the violation,

     the offender committed the offense in the vicinity of one or more children

     who are not victims of the offense, and the offender or the victim of the




6.
     offense is a parent, guardian, custodian, or person in loco parentis of one or

     more of those children.

            (C) The sentencing court shall consider all of the following that

     apply regarding the offender, the offense, or the victim, and any other

     relevant factors, as indicating that the offender’s conduct is less serious

     than conduct normally constituting the offense:

            (1) The victim induced or facilitated the offense.

            (2) In committing the offense, the offender acted under strong

     provocation.

            (3) In committing the offense, the offender did not cause or expect to

     cause physical harm to any person or property.

            (4) There are substantial grounds to mitigate the offender’s conduct,

     although the grounds are not enough to constitute a defense.

            (D) The sentencing court shall consider all of the following that

     apply regarding the offender, and any other relevant factors, as factors

     indicating that the offender is likely to commit future crimes:

            (1) At the time of committing the offense, the offender was under

     release from confinement before trial or sentencing; was under a sanction

     imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised

     Code; was under post-release control pursuant to section 2967.28 or any

     other provision of the Revised Code for an earlier offense or had been




7.
     unfavorably terminated from post-release control for a prior offense

     pursuant to division (B) of section 2967.16 or section 2929.141 of the

     Revised Code; was under transitional control in connection with a prior

     offense; or had absconded from the offender’s approved community

     placement resulting in the offender’s removal from the transitional control

     program under section 2967.26 of the Revised Code.

            (2) The offender previously was adjudicated a delinquent child

     pursuant to Chapter 2151. of the Revised Code prior to January 1, 2002, or

     pursuant to Chapter 2152. of the Revised Code, or the offender has a

     history of criminal convictions.

            (3) The offender has not been rehabilitated to a satisfactory degree

     after previously being adjudicated a delinquent child pursuant to Chapter

     2151. of the Revised Code prior to January 1, 2002, or pursuant to Chapter

     2152. of the Revised Code, or the offender has not responded favorably to

     sanctions previously imposed for criminal convictions.

            (4) The offender has demonstrated a pattern of drug or alcohol abuse

     that is related to the offense, and the offender refuses to acknowledge that

     the offender has demonstrated that pattern, or the offender refuses treatment

     for the drug or alcohol abuse.

            (5) The offender shows no genuine remorse for the offense.




8.
                (E) The sentencing court shall consider all of the following that

       apply regarding the offender, and any other relevant factors, as factors

       indicating that the offender is not likely to commit future crimes:

                (1) Prior to committing the offense, the offender had not been

       adjudicated a delinquent child.

                (2) Prior to committing the offense, the offender had not been

       convicted of or pleaded guilty to a criminal offense.

                (3) Prior to committing the offense, the offender had led a law-

       abiding life for a significant number of years.

                (4) The offense was committed under circumstances not likely to

       recur.

                (5) The offender shows genuine remorse for the offense.

                (F) The sentencing court shall consider the offender’s military

       service record and whether the offender has an emotional, mental, or

       physical condition that is traceable to the offender’s service in the armed

       forces of the United States and that was a contributing factor in the

       offender’s commission of the offense or offenses.

       {¶ 14} In reviewing the enumerated sentencing factors and with a deferential

standard of review to the decision of the trial court, we conclude that the individual

sentences imposed by the court are not contrary to law as each individual sentence on

each charge is within the authorized statutory range. Furthermore, the trial court stated in




9.
its judgment entry that it had considered the record, oral statements and any victim

impact statement, as well as statutory principles and purposes of sentencing and the court

further balanced the seriousness, recidivism and other relevant factors under R.C.

2929.12.

       {¶ 15} With respect to the court’s imposition of consecutive sentences, that issue

is governed by R.C. 2929.14(C)(4), which states, in pertinent part:

              (4) 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:

              (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




10.
       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.

       {¶ 16} The court found in its judgment entry that the imposition of consecutive

sentences was 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. The court also

found in its judgment entry that the harm caused was so great or unusual that no single

prison term was adequate.

       {¶ 17} Although the court is not required to give reasons in support of those

findings, the record demonstrates that when the court inquired as to the ages of the people

on the downloaded videos, the prosecutor stated that “ages ranged from 15, eight year

olds down to a three year old.” While a presentence report was not prepared, the court

did review a pretrial criminal record check. That record check established that aside from

traffic offenses, the appellant had been convicted in 1997 of a nuisance abatement charge

and a felony nonsupport of dependents in 2008.

       {¶ 18} Despite appellant’s minimal criminal record, upon our review, we do not

believe the record in this case clearly and convincingly fail to support the trial court’s

consecutive sentence findings.




11.
       {¶ 19} However, our review of the sentencing judgment entry reveals the

following finding made by the trial court: “The Court further finds that this offense is an

offense of violence pursuant to R.C. 2901.01(A)(9)(a)-(d).”

       {¶ 20} R.C. 2901.01(A)(9)(a)-(d) states the following:

              (9) “Offense of violence” means any of the following

              (a) A violation of section 2903.01, 2903.02, 2903.03, 2903.04,

       2903.11, 2903.12, 2903.13, 2903.15, 2903.21, 2903.211, 2903.22, 2905.01,

       2905.02, 2905.11, 2905.32, 2907.02, 2907.03, 2907.05, 2909.02, 2909.03,

       2909.24, 2911.01, 2911.02, 2911.11, 2917.01, 2917.02, 2917.03, 2917.31,

       2919.25, 2921.03, 2921.04, 2921.34, or 2923.161, of division (A)(1) of

       section 2903.34, of division (A)(1), (2), or (3) of section 2911.12, or of

       division (B)(1), (2), (3), or (4) of section 2919.22 of the Revised Code or

       felonious sexual penetration in violation of former section 2907.12 of the

       Revised Code;

              (b) A violation of an existing or former municipal ordinance or law

       of this or any other state or the United States, substantially equivalent to

       any section, division, or offense listed in division (A) (9)(a) of this section;

              (c) An offense, other than a traffic offense, under an existing or

       former municipal ordinance or law of this or any other state or the United

       States, committed purposely or knowingly, and involving physical harm to

       persons or a risk of serious physical harm to persons;




12.
              (d) A conspiracy or attempt to commit, or complicity in committing,

       any offense under division (A)(9)(a), (b), or (c) of this section.

       {¶ 21} We find nothing in the record that reflects any discussion or establishes an

obvious basis in support of such a finding in this case. As a result, a remand to the trial

court is appropriate for the express purpose of trial court clarification and delineation of

the basis of the finding of an “offense of violence” pursuant to R.C. 2901.01(A)(9)(a)-(d)

or to amend the judgment entry accordingly. Appellant’s sole assignment of error is

found not well-taken.

       {¶ 22} The judgment of conviction and the sentencing of appellant is hereby

affirmed, but this case is remanded for further proceedings for the express purpose of trial

court clarification and further delineation of the basis of the finding that this offense is an

“offense of violence” pursuant to R.C. 2901.01(A)(9)(a)-(d). Appellant is ordered to pay

the costs of this appeal pursuant to App.R. 24.


                                                                            Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




13.
                                             State v. Bunn
                                             C.A. No. L-16-1089




Mark L. Pietrykowski, J.   _______________________________
                                       JUDGE
Thomas J. Osowik, J.
                           _______________________________
James D. Jensen, P.J.                  JUDGE
CONCUR.
                           _______________________________
                                       JUDGE




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