[Cite as State v. Summers , 2014-Ohio-4538.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 10-13-22

        v.

CHRISTOPHER A. SUMMERS,                                  OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Mercer County Common Pleas Court
                           Trial Court No. 13 CRM 30

                                     Judgment Affirmed

                           Date of Decision: October 14, 2014




APPEARANCES:

        J. Allen Wilmes for Appellant

        Matthew K. Fox for Appellee
Case No. 10-13-22


SHAW, J.

       {¶1} Defendant-appellant Christopher A. Summers (“Summers”) appeals

the October 22, 2013 judgment of the Mercer County Common Pleas Court

sentencing Summers to an aggregate prison term of 20 years after Summers pled

guilty to eight counts of Sexual Battery in violation of R.C. 2907.03(A)(7), all

felonies of the third degree.

       {¶2} The facts relevant to this appeal are as follows. On February 21, 2013

Summers was indicted in a 47 count indictment alleging various counts of Rape,

Sexual Battery, Felonious Assault, Gross Sexual Imposition and Attempted Sexual

Battery against the same victim. Counts 1 and 11 of the indictment alleged that

Summers committed Rape in violation of R.C. 2907.02(A)(2), both felonies of the

first degree. Counts 2, 4, 6, 9, 12, 14, 16, 18, 20, 22, 24, 26, 28, 30, 32, 35, 37, 39,

41, 43 and 45 alleged that Summers committed Sexual Battery in violation of R.C.

2907.03(A)(1), all felonies of the third degree. Counts 3, 5, 7, 10, 13, 15, 17, 19,

21, 23, 25, 27, 29, 31, 33, 36, 38, 40, 42, 44 alleged that Summers committed

Sexual Battery in violation of R.C. 2907.03(A)(7), all felonies of the third degree.

Counts 8 and 34 alleged that Summers committed Felonious Assault in violation

of R.C. 2903.11(A)(2), both felonies of the second degree. Count 46 alleged that

Summers committed Attempted Sexual Battery in violation of R.C. 2923.02(A)

and R.C. 2907.03(A)(1), a felony of the fourth degree. Count 47 alleged that


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Summers committed Gross Sexual Imposition in violation of R.C. 2907.05(A)(1),

a felony of the fourth degree.

         {¶3} On February 27, 2013 Summers was arraigned and pled not guilty to

the charges against him. (Doc. 14).

         {¶4} On June 17, 2013, the State filed a Bill of Particulars further clarifying

the charges against Summers. (Doc. 153). According to the Bill of Particulars the

crimes were all perpetrated against the same victim who was a high school student

in the accounting class Summers taught, and played for Summers on the girls JV

basketball team. The crimes alleged spanned from approximately June of 2010

through October of 2012. (Id.)

         {¶5} On August 5, 2013, the State filed a nolle prosequi as to Counts 1 and

11, Rape, electing not to proceed with those charges. (Doc. 265).

         {¶6} The case subsequently proceeded to a jury trial on the remaining

counts against Summers. At trial, the victim testified that she first met Summers

while she was a high school student at Fort Recovery.1 (Tr. at 6). Summers was

the victim’s study hall monitor her freshman year of high school, and he had

taught the victim’s brothers while they were in school.                            During the victim’s

sophomore year of high school, Summers taught her accounting class and he was



1
  The record indicates that the trial was in its third day when Summers elected to plead guilty to eight of the
Sexual Battery counts against him. The only portion of the trial transcript reproduced on appeal was the
testimony of the victim from the third day of trial.

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her JV basketball coach. Summers was also a track coach, and the victim ran

track.

         {¶7} The victim testified that her sophomore year she began occasionally

babysitting Summers’ kids while Summers and his wife went out.            She also

testified that she tore her ACL her sophomore year during basketball season, and

wanting to continue helping out with the team, she assisted Summers with

scouting reports. The victim testified that it was around this time that Summers

began to send her text messages and began asking her to come down to see him

during study hall. (Tr. at 12).

         {¶8} The victim testified that Summers started “meddling” in the personal

lives of the players on his team, including hers. (Tr. at 13). She testified that

Summers would pull her into the “show choir room” at school to talk and

threatened detentions if she would not meet him. (Id.) The victim testified that

Summers began sending her text messages on the weekends asking her if she was

“behaving.” (Tr. at 13). The victim testified that Summers would message her

about girls in practice and communicate with her about her friends. She testified

that Summers was “nosy.” (Tr. at 16).

         {¶9} The victim testified that in the summer of 2010, a few weeks after

school concluded her sophomore year, Summers and his wife asked her to go on a

trip to the Outer Banks in North Carolina with them to babysit their children. (Tr.


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at 18). The victim testified that despite her reservations regarding Summers, she

liked his children and had never seen the ocean so she agreed to go along. (Id.)

       {¶10} The victim testified that there were multiple incidents on the trip that

made her feel uncomfortable but other than a hug nothing physically happened on

the trip. (Tr. at 22). The victim testified that Summers sent her a message after

the trip apologizing for his demeanor. (Id.)

       {¶11} The victim testified that later that same summer she went to a

basketball camp that Summers also attended. The victim testified that on one

evening many of the members of the team were in her room, and that after they

left, Summers lingered asking her about her issues with her friends. (Tr. at 24).

       {¶12} The victim testified that on June 28, 2010, shortly after the basketball

camp was over, she was contacted by Summers’ wife to babysit the children for

the day. (Tr. at 26). The victim testified that Summers came home while she was

still babysitting and told her that he wanted to pay her and that he had to show her

something. (Tr. at 26). The victim testified that she followed Summers to his

bedroom where Summers shoved her onto the bed. (Tr. at 26). The victim

testified that Summers had his hands locked on her arms and that she told

Summers to get off of her. (Tr. at 27). The victim testified that Summers told her

that he loved her and that she was his “little puzzle piece.” (Id.)




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       {¶13} The victim testified that Summers told her he wanted to show her he

loved her so he took the victim’s clothes off and digitally penetrated her. (Tr. at

27). The victim testified that she “was telling him [she] didn’t want it and for him

to get off [her] and let [her] go.” (Tr. at 27). The victim testified that Summers

then put a condom on and had sexual intercourse with her. (Tr. at 29). The victim

testified that afterward Summers instructed her not to tell anyone because

Summers was in “control and that he could do anything he wanted to [her], and

[she] had no idea what kind of man he was and what he was capable of doing to

[her] and that he would go to great lengths to make sure that [she] never told.”

(Tr. at 29-30).

       {¶14} The victim testified that Summers then waffled back and forth

between telling her that he was “so glad that he got to take [her] virginity and that

it meant everything to him, that [she] was so special” to “telling [her] that he could

do anything he wanted to [her] and that he made sure that he had the control.” (Tr.

at 30). After the incident, Summers instructed the victim to get her clothes and go.

       {¶15} The victim testified that Summers sent her text messages on her way

home after the incident further instructing her not to tell anyone. She testified that

she was too scared and embarrassed to tell anyone. She testified that she also felt

responsible because she had a feeling she should not have gone over to babysit but

went over anyway. (Tr. at 31-32).


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       {¶16} The victim testified that in the days following the incident Summers

continued messaging her saying that he wanted to see her and she avoided him as

much as she could. (Tr. at 33). The victim testified that she made every excuse

she could to put off meeting Summers, but that Summers kept reminding her that

she “was under his control and that he had the power and that he was capable of

doing anything to keep [her] quiet.” (Tr. at 34). The victim testified that at one

point after dinner on July 3, 2010, she received 10 messages in a row from

Summers, and that Summers then called her and said that she had to “meet him or

* * * pay the consequences.” (Tr. at 34).

       {¶17} The victim testified that she met Summers at the “Saint Henry * * *

ball diamond” in the first-base dugout following a wedding she was attending.

(Tr. at 35). The victim testified that Summers began “kissing [her] and telling

[her] how bad he wanted it.” (Tr. at 35). The victim testified that Summers pulled

her dress up and “went in” then made her perform oral sex on him. (Tr. at 36).

The victim testified that after the incident Summers called her to remind her not to

tell anyone. (Tr. at 36).

       {¶18} The victim testified to similar incidents that happened where

Summers would tell her how “he needed it” and that “[h]e couldn’t keep it under

control anymore[.]” The victim testified that Summers made threats to get her to




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meet him and that she met him at her sister’s house where they had sexual

intercourse. (Tr. at 37-38).

       {¶19} The victim testified that near the end of July in the summer of 2010

she began dating another high school student and Summers was angry when he

found out about it. (Tr. at 40-41). The victim testified that when Summers

learned about the victim’s boyfriend he told her that she had to meet him so they

met out at Dull Road in Mercer County. (Tr. at 41). The victim testified that

Summers was screaming at her and telling her how she should “have clearly

known that [she] was his[.]” (Id.) The victim testified that Summers had a knife

with him, and that he was “rubbing it up and down [her] leg and telling [her] that

[she] needed a reminder of who [she] belonged to.” (Tr. at 41). The victim

testified that Summers then took the knife and carved his first initial, “C,” in the

inside of her right ankle.     (Tr. at 42).    The victim testified that she begged

Summers not to before he did it, but he did anyway and then made her clean up the

blood. (Tr. at 42).

       {¶20} The victim testified that Summers took her phone while on Dull

Road and sent a message from her phone to his saying, “I won’t cut myself again,”

making it look like she had cut herself. (Tr. at 43). The victim testified that

before she left that night the two had sexual intercourse again. (Tr. at 43). The

victim testified that she did not tell anyone about the incident, stating that “at that


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point he had raped [her] and had cut [her], and [she] knew he was capable of just

about anything if he was willing to do that.” (Tr. at 44).

       {¶21} The victim testified to another incident where her parents traveled

out of town and Summers learned of it and came to her house. (Tr. at 45-46). She

testified that Summers penetrated her anally and then forced her to orally pleasure

him afterward. (Tr. at 46-47). The victim testified that the incident made her sick,

that it “was hard to breathe” and “hard to walk.” (Tr. at 47).

       {¶22} The victim testified that incidents then started happening during

school when basketball started her junior year. According to the victim multiple

incidents occurred where Summers digitally penetrated her on the bus under a

blanket to and from games. (Tr. at 48). The victim also testified that during

practice Summers called her into the locker room to yell at her for lying to him

about where she had been over the weekend, and that Summers initiated sexual

intercourse with her in the locker room. (Tr. at 50). The victim testified that

Summers told her that “we wouldn’t want you to hurt yourself again and cut

yourself again, would we?”      (Tr. at 51). The victim testified that Summers

occasionally would have sex with her after basketball practices during her junior

year as well, that she felt forced to do so, and that it happened five to ten times.

(Tr. at 52).




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       {¶23} The victim testified to an incident in January of 2011 where

Summers found out she was still dating her boyfriend and Summers got angry.

(Tr. at 53). Summers told the victim that she “needed a reminder that [she]

belonged to him.” (Id.) The victim testified that Summers then cut into her ankle

again, and retraced the “C” he had cut into her before. (Id.) The victim testified

that at the date of trial she still had a scar from Summers cutting her.

       {¶24} The victim then testified that similar sexual incidents continued to

occur through her junior year of high school into her senior year and through high

school graduation in 2012.      (Tr. at 58).    She testified that the summer after

graduation Summers’ wife found out and started threatening her. (Id.) The victim

testified that despite Summers’ wife finding out, Summers would continue to

message her, telling her that he needed to meet her, expressing that he was going

to kill himself. (Tr. at 60). The victim testified that Summers had said before that

he had contemplated suicide and that if he did kill himself he was going to take the

victim with him. (Tr. at 60). The victim also testified that other times Summers

said he would leave a suicide note “making sure that [she] was blamed for it.” (Tr.

at 60). The victim testified that she continued to get phone calls and threats from

both Summers and his wife. (Tr. at 61).

       {¶25} The victim testified that the sexual contact continued to occur when

she was at college until October of 2012. She testified that Summers told her he


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was going to “ruin” her, and do “whatever it took.” (Tr. at 64). The victim

testified that Summers sent her pictures of her boyfriend’s house, and told the

victim that he was going to hurt a member of her family. (Tr. at 64).

        {¶26} The victim testified that she was having trouble sleeping and eating,

so she finally told her mother about the incidents. (Tr. at 65). The victim testified

that afterward she went with her mother and spoke to the police.

        {¶27} Before the victim’s direct-examination concluded on the third day of

trial, the court took a lunch recess. During the recess, the parties negotiated a plea

whereby Summers would plead guilty to 8 counts of Sexual Battery in violation of

R.C. 2907.03(A)(7), all felonies of the third degree, in exchange for the State

dismissing the remaining charges.2

        {¶28} When the court reconvened later that day on August 7, 2013,

Summers entered the written negotiated plea and the court conducted a Criminal

Rule 11 colloquy with Summers ensuring that his pleas were knowingly,

intelligently and voluntarily given. After Summers entered his guilty pleas, the

court accepted them and found Summers guilty, setting sentencing for a later date.

An entry reflecting this was filed August 26, 2013. (Doc. 285).

        {¶29} On October 10, 2013 a sentencing hearing was held. At the hearing,

one of the victim’s former friends gave a statement indicating that she felt


2
 The specific counts of the indictment Summers pled guilty to were counts 3, 5, 7, 10, 13, 15, 36, and 44.
As part of the agreement the State agreed that no further charges would be filed in the matter. (Doc. 279).

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Summers was a good person and professional and that she felt the victim was a

willing participant. One of Summers’ friends also gave a statement that she felt

Summers was remorseful and would not make the same mistake again. She also

stated that she felt the victim was a willing participant and only made the

accusations to not disappoint her parents.     Summers’ counselor also made a

statement indicating that Summers had taken responsibility for his actions.

Summers’ wife made a statement pleading for mercy from the court, stating that

Summers had changed. Summers himself then made a statement on his own

behalf, accepting fault for the “inappropriate relationship.” Summers’ attorney

then made an argument on his behalf.

      {¶30} The victim’s parents then both made statements before the court,

requesting that Summers be given maximum consecutive sentences totaling 40

years. The victim’s sister gave a statement making a similar request. Finally, the

victim made a statement, stating that she had been hurt “physically, mentally, and

emotionally” by Summers and that she would “be forever changed by what Mr.

Summers did to [her].” (Tr. at 45). The victim continued, stating that when she

looked back on her high school years she “remember[ed] the sleepless nights of

crying and nightmares, the physical hurt and injuries, the emotional abuse, lack of

appetite, and the ongoing hell [Summers] put [her] through.” (Tr. at 45). The

victim stated that “I remember having to isolate myself from my family and


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friends. I felt like a zombie. I was not living life. I was living hell on earth.” (Tr.

at 45).

          {¶31} After hearing the arguments at sentencing, the court ultimately

ordered Summers to serve 30 months in prison on each of the eight counts, to be

served consecutively for an aggregate prison term of 20 years. A sentencing entry

reflecting this was filed October 22, 2013. (Doc. 309). It is from this judgment

that Summers appeals, asserting the following assignments of error for our review.

                      ASSIGNMENT OF ERROR 1
          THE TRIAL COURT COMMITTED PREJUDICIAL ERROR
          BY IMPOSING CONSECUTIVE [SENTENCES] ON
          APPELLANT WHICH SENTENCE WAS AN ABUSE OF
          DISCRETION AND WAS [IN] VIOLATION OF THE
          PURPOSES AND PRINCIPLES OF SENTENCING.

                       ASSIGNMENT OF ERROR 2
          CONSECUTIVE SENTENCES CUMULATING [sic] IN A
          TERM OF TWENTY YEARS WAS NOT CONSISTENT
          WITH NOR PROPORTIONATE TO SENTENCES IMPOSED
          IN SIMILAR CASES FOR SIMILAR OFFENDERS.

                       ASSIGNMENT OF ERROR 3
          OHIO SEXUAL BATTERY STATUTE 2907 AS APPLIED TO
          SCHOOL TEACHERS IS UNCONSTITUTIONAL AND
          VIOLATIVE OF THE EQUAL PROTECTION CLAUSE OF
          THE 14TH AMENDMENT.

                               First Assignment of Error

          {¶32} In Summers’ first assignment of error, he argues that the trial court

abused its discretion by imposing consecutive sentences. Specifically, Summers



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contends that the trial court’s findings do not support consecutive sentences in this

case.

        {¶33} In order to impose consecutive sentences in this case the trial court

was required to make certain specific findings on the record, pursuant to R.C.

2929.14(C)(4). State v. Peddicord, 3d Dist. Henry No. 7-13-12, 2014-Ohio-2849,

¶ 7, citing State v. Hites, 3d Dist. Hardin No. 6-11-07, 2012-Ohio-1892, ¶ 11.

While the trial court is required to make the specific findings, it is not required to

list its reasoning for making the findings. State v. Stairhime, 3d Dist. Defiance

No. 4-13-06, 2014-Ohio-1791, ¶ 51; State v. Hill, 3d Dist. No. 7–12–11, 2013-

Ohio-3873, ¶ 22. “Furthermore, the sentencing court is not required to recite any

‘magic’ or ‘talismanic’ words when imposing consecutive sentences.” State v.

Bever, 4th Dist. Washington No. 13CA21, 2014–Ohio–600, ¶ 17, citing State v.

Clay, 4th Dist. Lawrence No. 11CA23, 2013–Ohio–4649, ¶ 64. However, it must

be clear from the record that the sentencing court actually made the required

statutory findings. State v. Alexander, 1st Dist. Hamilton Nos. C-110828, C-

110829, 2012-Ohio-3349, ¶ 16. A failure to make the findings required by R.C.

2929.14(C)(4) renders a consecutive sentence contrary to law. State v. Stamper,

12th Dist. Butler No. CA2012-08-166, 2013-Ohio-5669, ¶ 23.

        {¶34} With respect to the consecutive sentence issues raised in this case,

R.C. 2929.14(C)(4) states,


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      (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:

      ***

      (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.

      ***

      {¶35} In this case, with regard to consecutive sentences, the trial court

made the following findings at the sentencing hearing.

      The court will impose those sentences to be consecutive in
      nature, finding that consecutive sentences are necessary to
      protect the public from future crimes by this offender and that
      they are not disproportionate to the seriousness of this conduct
      and the danger he poses to the public.

      Further, that these multiple offenses were committed as part of a
      course of conduct and that the harm caused by these multiple
      offenses so committed is so great and unusual that no single
      prison term * * * could adequately reflect the seriousness of this
      conduct that brought about his conviction for these offenses.

(Oct. 10, 2013 Tr. at 58). The same language was also used in the trial court’s

judgment entry. (Doc. 309).


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       {¶36} The language used by the trial court at the sentencing hearing and in

its judgment entry clearly mirrors and satisfies the findings required by R.C.

2929.14(C)(4) to impose consecutive sentences. Thus we cannot find under the

facts and circumstances in this case that the trial court’s imposition of consecutive

sentences was improper.

       {¶37} Despite the trial court’s clear findings, Summers contends that the

trial court’s findings were not supported in the record. However, the trial court is

not required to support its findings for consecutive sentences, merely to make the

required findings. State v. Stairhime, 3d Dist. Defiance No. 4-13-06, 2014-Ohio-

1791, ¶ 51. Nevertheless, in this case the trial court did make extensive findings

both at the sentencing hearing and in its judgment entry to support its decision to

impose greater than minimum sentences and consecutive sentences. After stating

that it had considered all of the appropriate statutory criteria, the testimony from

trial, the letters and pre-sentencing reports and the statements at the sentencing

hearing, the trial court made the following findings.

       Those sentencing factors for the record and for the entry from
       today’s proceedings so that the record is clear should include
       that the mental injury suffered by the victim in this case due to
       the offender’s conduct was exacerbated because of her age, and
       she has in fact suffered serious psychological harm. Again, the
       defendant’s position of trust in the community as a teacher and
       coach was related to the offense and that position and his
       position as a teacher and coach obligated him to prevent such
       criminal offenses and to bring others who might commit that
       kind of offense to justice.

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       Further, that profession of teacher and coach was used to
       facilitate this offense and brought about his relationship with
       the victim that did in fact facilitate the offense. * * *

       * * * [T]he court notes that [Summers’] motivation in these
       offenses were for his own personal feelings of seeking to be
       accepted and loved and cared for and feel validated, and he
       took advantage of his position as teacher and coach in his
       relationship with the victim in facilitating these offenses over an
       extended period of time.

       As he acknowledged in his statement, there were numerous
       times going all the way back to the beginning of this
       relationship that resulted in these offenses even when viewed
       from the perspective of the defendant, as related to the court,
       when he could have used that position to teach and guide and
       put the interests of the student first, and he failed to do so, and
       instead did what he felt he wanted to do to satisfy his own
       needs.

(Oct. 10, 2013 Tr. at 55-57).

       {¶38} The preceding statements make clear that the trial court made

findings to support its sentencing decision beyond those required by the statute. In

sum, Summers’ arguments that the trial court did not weigh certain sentencing

aspects in his favor are not well-taken as they are 1) not required, and 2) were

made in any event.     As the trial court made the required statutory findings,

Summers’ first assignment of error is overruled.




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                           Second Assignment of Error

       {¶39} In Summers’ second assignment of error, he argues that his aggregate

20 year prison term was not consistent with, nor proportionate to, sentences

imposed in similar cases for similar offenders.

       {¶40} “A defendant alleging disproportionality in felony sentencing has the

burden of producing evidence to ‘indicate that his sentence is directly

disproportionate to sentences given to other offenders with similar records who

have committed these offenses * * *.’” State v. Ewert, 5th Dist. Muskingum No.

CT2012-0002, 2012-Ohio-2671, ¶ 33, quoting State v. Breeden, 8th Dist.

Cuyahoga No. 84663, 2005-Ohio-510, ¶ 81. 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 by similar offenders, then the defendant

waives that issue for appeal. State v. Norman, 3rd Dist. Seneca No. 13-13-50,

2014-Ohio-3010, ¶ 17 citing Ewert at ¶ 31 (additional citations omitted).

       {¶41} At the outset, we would note that Summers did not present this issue

to the trial court, and therefore waived it for purposes of appeal. Nevertheless,

even disregarding the waiver, Summers has not established that the trial court’s

sentence was disproportionate in this case. Summers was ordered to serve 30

months in prison on each of the eight sexual battery charges he pled guilty to,

which was half of the maximum possible 60 month prison sentence for each


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conviction. As illustrated in the previous assignment of error, the trial court made

findings to support the imposition of its sentence and specifically stated it had

considered the requisite sentencing statutes.

        {¶42} In addition to the trial court’s findings, we would note the testimony

of the victim presented at trial, which indicated that for a period of over two years

Summers compelled the victim, who was his student, to repeatedly engage in

sexual acts through constant threats. The testimony indicated that Summers went

so far as to use a knife to carve his initial into the victim more than once so that

she would be reminded “she was his.” The victim also testified that Summers

continually threatened her safety, the safety of her boyfriend and her family, and

that Summers threatened to harm himself and blame the victim for it in order to

compel her to engage in the sexual relationship.

        {¶43} In arguing that his sentence was disproportionate, Summers relies

heavily on State v. Parker, 193 Ohio App.3d 506, 2d Dist. No. 10CA0074, 2011-

Ohio-1418.3        In Parker, the Second District Court of Appeals modified a

defendant’s sentence in a Sexual Battery case. In that case the court found that

where the defendant was a first time offender and had only a very brief

relationship with a student that did not involve any compulsion, a fifteen year

prison sentence was excessive, especially since the trial court seemed to base its


3
 Summers also cites various other trial court cases that are not binding on this court and provide little
persuasive authority for our appellate review of this matter.

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sentence on a desire to give the defendant a lengthy sentence to prevent him from

having a relationship with the victim. State v. Cameron, 2nd Dist. No. 2012-CA-

86, 2013-Ohio-4397, ¶¶ 16-17 (analyzing and distinguishing Parker).

       {¶44} The case before us is clearly different than Parker for a wide variety

of reasons. In Parker, the defendant and the victim only met twice and no sexual

intercourse occurred, rather merely digital penetration. Here, sexual intercourse

occurred frequently seemingly whenever desired by Summers in addition to other

sexual acts desired by Summers.

       {¶45} In Parker there was no indication of force or compulsion. In fact, the

victim in Parker believed that she was “in love” with the defendant. In the case

before us the victim’s testimony indicated severe threats from Summers, infliction

of physical injury with a knife, and a heavy degree of compulsion to get the victim

to engage in the sexual acts.

       {¶46} Additionally, in Parker the defendant was charged with and pled

guilty to four counts of Sexual Battery, which all occurred in a matter of weeks,

whereas here Summers pled guilty to eight counts of Sexual Battery and the

crimes spanned over two years.

       {¶47} Finally, in Parker there was a clear indication that the prison term

was set primarily to get a desired future result, namely to prevent any possible

relationship between the defendant and the victim. There is no such indication


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from the record before us that the trial court had a specific goal and created a

“sentencing package” to achieve that goal. Thus Parker is clearly distinguishable

from the case before us.

           {¶48} Accordingly, based on all the facts and circumstances of this case,

even if Summers had not waived this claim, we cannot find that the trial court’s

sentence was disproportionate as it was supported in the record and Summers has

not met his burden establishing that the sentence was disproportionate. Therefore

Summers’ second assignment of error is overruled.

                                     Third Assignment of Error

           {¶49} In Summers’ third assignment of error, he argues that the Sexual

Battery statute as applied to school teachers, R.C. 2907.03(A)(7), is

unconstitutional.

           {¶50} Initially we would note that Summers failed to make the argument

that R.C. 2907.03(A)(7) was unconstitutional at the trial court level. The “[f]ailure

to raise at the trial court level the issue of the constitutionality of a statute or its

application, which is apparent at the time of trial, constitutes a waiver of such

issue and a deviation from this state's orderly procedure, and therefore need not be

heard for the first time on appeal.” State v. Awan, 22 Ohio St.3d 120 (1986),

syllabus. Thus Summers has waived this argument for this appeal.4



4
    At oral argument Summers also seemed to concede this argument.

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       {¶51} Nevertheless, this exact challenge was previously addressed by the

Ninth District Court of Appeals in State v. Shipley, 9th Dist. Lorain No.

03CA008275, 2004-Ohio-434, ¶¶ 80-81. In Shipley, the Ninth District conducted

the following analysis.

       R.C.      2907.03(A)(7)      specifically    penalizes      teachers,
       administrators, coaches and other individuals in a position of
       authority with a public school for an act for which other
       individuals, not encompassed within another part of the same
       statute, would not be penalized. See R.C. 2907.03 and 2907.04.
       The legislature explained in enacting the statute that it intended
       to protect individuals in a variety of situations where another
       might take unconscionable advantage of that individual. See
       1974 Committee Comment to R.C. 2907.03(A)(7). In 1994, the
       legislature amended the statute to include 2907.03(A)(7) in
       response to a case which held that teachers did not fall under
       any of the classifications in the prior statute. See State v. Noggle,
       67 Ohio St.3d 31, 1993-Ohio-189.

       In this case, R.C. 2907.03(A)(7) is rationally related to its
       intended purpose of preventing teachers from taking
       unconscionable advantage of students by using their undue
       influence over the students in order to pursue sexual
       relationships. Defendant has failed to show that the statute bears
       no rational relationship to a legitimate government interest.

Shipley, ¶¶ 80-81.

       {¶52} Thus even if Summers’ argument was not waived, we concur with

the Ninth District’s assessment in Shipley as there appears to be a clear rational

basis for the statute.    Summers has in no way demonstrated that the strong

presumption of constitutionality afforded to statutes has been overcome in this

case. Accordingly, Summers’ third assignment of error is overruled.

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       {¶53} For the foregoing reasons, Summers’ assignments of error are

overruled and the judgment of the Mercer County Common Pleas Court is

affirmed.

                                                       Judgment Affirmed

WILLAMOWSKI, P.J. and PRESTON, J., concur.

/jlr




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