[Cite as State v. Watson, 2020-Ohio-1146.]




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

 STATE OF OHIO                                     :
                                                   :
         Plaintiff-Appellee                        :   Appellate Case No. 2019-CA-35
                                                   :
 v.                                                :   Trial Court Case No. 2019-CR-67
                                                   :
 BRIAN WATSON                                      :   (Criminal Appeal from
                                                   :   Common Pleas Court)
         Defendant-Appellant                       :
                                                   :

                                              ...........

                                             OPINION

                            Rendered on the 27th day of March, 2020.

                                              ...........

JOHN M. LINTZ, Atty. Reg. No. 0097715, Assistant Prosecuting Attorney, Clark County
Prosecutor’s Office, Appellate Division, 50 East Columbia Street, Suite 449, Springfield,
Ohio 45502
      Attorney for Plaintiff-Appellee

NICOLE RUTTER-HIRTH, Atty. Reg. No. 0081004, 2541 Shiloh Springs Road, Dayton,
Ohio 45426
      Attorney for Defendant-Appellant

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




DONOVAN, J.
                                                                                          -2-


       {¶ 1} Defendant-appellant Brian Watson appeals his conviction and sentence for

two counts of gross sexual imposition (GSI), in violation of R.C. 2907.05(A)(4), both

felonies of the third degree. Watson filed a timely notice of appeal with this Court on May

6, 2019.

       {¶ 2} On January 28, 2019, Watson was indicted for the following six offenses:

Counts I - III: rape (less than 13 years old), in violation of R.C. 2907.02(A)(1)(b), all

felonies of the first degree; and Counts IV - VI: gross sexual imposition (less than 13 years

old), in violation of 2907.05(A)(4), all felonies of the third degree. At his arraignment on

February 1, 2019, Watson pled not guilty to all of the offenses set forth in the indictment.

       {¶ 3} The incidents which formed the basis for the charges occurred over the

course of a year and a half, between March 2017 and September 2018. During that time

period, Watson was alleged to have repeatedly sexually abused his 11-year-old daughter,

M. The ongoing sexual abuse was revealed when M. informed one of her teachers that

Watson had penetrated her digitally and placed his mouth on her vagina.              Shortly

thereafter, M. was interviewed by employees at the Child Advocacy Center where she

confirmed again that she had been repeatedly sexually abused by Watson. We note that

M. had cerebral palsy and was on the autism spectrum, causing her to have multiple

developmental delays.

       {¶ 4} When confronted with his daughter’s allegations, Watson initially denied

everything when interviewed at the Clark County Sheriff’s office. Sentencing Tr. 7.

Watson then changed his story, theorizing that M. had viewed internet porn on his

computer, which led her to concoct her allegations of sexual abuse against him. Id. at 8.

Upon further questioning, Watson changed his story again, claiming that he only touched
                                                                                          -3-


M.’s vagina in order to show her how to masturbate properly and how to “finish faster.”

Presentence Investigation Report (PSI) at 1.

       {¶ 5} On April 1, 2019, Watson pled guilty to two counts of GSI (Counts IV and V

in the indictment) in exchange for dismissal off the remaining counts. The trial court

accepted Watson’s pleas, found him guilty on both counts, and ordered a PSI to be

prepared by the Adult Probation Department.

       {¶ 6} At disposition on April 23, 2019, the trial court sentenced Watson to the

maximum term of five years in prison on each GSI count, and ordered the counts to be

served consecutively for an aggregate sentence of ten years in prison. Watson was also

designated as a Tier II sex offender. We note that the trial court orally made the findings

required by R.C. 2929.14(C)(4) and included them in its judgment entry.

       {¶ 7} It is from this judgment that Watson now appeals.

       {¶ 8} Watson’s sole assignment of error is as follows:

       MR.    WATSON’S       MAXIMUM        CONSECUTIVE         SENTENCE        WAS

       UNCONSTITUTIONAL AND UNLAWFUL PURSUANT TO R.C. 2953.08.

       {¶ 9} In his sole assignment, Watson contends that the trial court erred when it

imposed maximum consecutive sentences in the instant case.

       {¶ 10} Watson did not object to the imposition of consecutive sentences in the trial

court. Accordingly, we review the trial court's imposition of consecutive sentences for plain

error. State v. Brewer, 2017-Ohio-119, 80 N.E.3d 1257 (2d Dist.). In order to constitute

plain error, the error must be an obvious defect in the trial proceedings, and the error

must have affected substantial rights. State v. Norris, 2d Dist. Montgomery No. 26147,

2015-Ohio-624, ¶ 22; Crim.R. 52(B). Plain error should be noticed “with the utmost
                                                                                          -4-


caution, under exceptional circumstances and only to prevent a manifest miscarriage of

justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the

syllabus; State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 23.

                             I. Imposition of Maximum Sentences

       {¶ 11} As this Court has previously noted:

       “The trial court has full discretion to impose any sentence within the

       authorized statutory range, and the court is not required to make any

       findings or give its reasons for imposing maximum or more than minimum

       sentences.” State v. King, 2013-Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.).

       However, in exercising its discretion, a trial court must consider the statutory

       policies that apply to every felony offense, including those set out in R.C.

       2929.11 and R.C. 2929.12. State v. Leopard, 194 Ohio App.3d 500, 2011-

       Ohio-3864, 957 N.E.2d 55, ¶ 11 (2d Dist.), citing State v. Mathis, 109 Ohio

       St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38.

State v. Armstrong, 2d Dist. Champaign No. 2015-CA-31, 2016-Ohio-5263, ¶ 12.

       {¶ 12} R.C. 2929.11 requires trial courts to be guided by the overriding principles

of felony sentencing. Those purposes 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.” R.C. 2929.11(A). The court must “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.” Id. R.C. 2929.11(B) further provides that “[a] sentence imposed for a felony
                                                                                         -5-


shall be reasonably calculated to achieve the two overriding purposes of felony

sentencing * * *, 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.”

       {¶ 13} R.C. 2929.12(B) sets forth nine factors indicating that an offender's conduct

is more serious than conduct normally constituting the offense. These factors include

whether the physical or mental injury to the victim was exacerbated because of the

physical or mental condition of the victim; serious physical, psychological, or economic

harm suffered by the victim as a result of the offense; whether the offender's relationship

with the victim facilitated the offense; and whether the offender committed the offense for

hire or as a part of an organized criminal activity.

       {¶ 14} R.C. 2929.12(C) sets forth four factors indicating that an offender's conduct

is less serious than conduct normally constituting the offense, including whether the victim

induced or facilitated the offense, whether the offender acted under strong provocation,

whether, in committing the offense, the offender did not cause or expect to cause physical

harm to any person or property, and the existence of substantial grounds to mitigate the

offender's conduct, although the grounds are not enough to constitute a defense. R.C.

2929.12(D) and (E) each lists five factors that trial courts are to consider regarding the

offender's likelihood of committing future crimes. Finally, R.C. 2929.12(F) requires the

sentencing court to consider the offender's military service record.

       {¶ 15} In reviewing felony sentences, appellate courts must apply the standard of

review set forth in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-

1002, 59 N.E.3d 1231, ¶ 9. Under R.C. 2953.08(G)(2), an appellate court may increase,
                                                                                            -6-


reduce, or modify a sentence, or it may vacate the sentence and remand for resentencing,

only if it “clearly and convincingly” finds either (1) that the record does not support certain

specified findings or (2) that the sentence imposed is contrary to law.

       {¶ 16} The maximum sentence authorized by law, the five-year sentence for each

count of GSI imposed by the trial court, was within the permissible statutory range for a

conviction for GSI, a felony of the third degree. However, at disposition, the trial court

failed to mention the principles and purposes of sentencing pursuant to R.C. 2929.11

and/or the seriousness and recidivism factors enunciated in R.C. 2929.12.

Nevertheless, in its judgment entry of conviction, the trial court stated the following:

       The Court has considered the PSI, record, oral statements of counsel, the

       defendant’s statement, and the purposes and principles of sentencing

       under Ohio Revised Code Section 2929.11, and then balanced the

       seriousness and recidivism factors under Ohio Revised Code Section

       2929.12.

(Emphasis added.)

       {¶ 17} This Court has held that a defendant's sentence is not contrary to law when

the trial court expressly states in its sentencing entry that it has considered R.C. 2929.11

and R.C. 2929.12, even if the court neglected to mention these statutes at the sentencing

hearing. State v. Battle, 2d Dist. Clark No. 2014 CA 5, 2014-Ohio-4502, ¶ 15, citing State

v. Miller, 2d Dist. Clark No. 09-CA-28, 2010-Ohio-2138, ¶ 43. Accordingly, the trial

court’s failure to orally advise Watson at disposition of its findings pursuant to R.C.

2929.11 and R.C. 2929.12 did not render his sentence contrary to law.

       {¶ 18} Additionally, we are not persuaded that the trial court's imposition of
                                                                                         -7-


maximum sentences was unwarranted simply because Watson was a first-time offender.

We previously have rejected the suggestion that a defendant's status as a first-time

offender provides a proper basis for comparison of sentences imposed in different cases.

See Armstrong, 2d Dist. Champaign No. 2015-CA-31, 2016-Ohio-5263, at ¶ 42. “Many

factors enter into a sentencing determination in each case, and sentences cannot

reasonably be compared to one another in this manner.” (Citations omitted.) Id.

                           II. Imposition of Consecutive Sentences

       {¶ 19} Watson also argues that the trial court erred when it imposed consecutive

sentences for the following reasons: 1) “it appears that the court imposed consecutive

sentences not because of the offenses for which he was convicted but because four rape

counts were dismissed”;1 2) although Watson scored low for recidivism, his PSI reflected

that he was high risk because he failed to properly admit to his offenses; 3) his sentence

constitutes an unnecessary burden on government resources; and 4) his sentence is

comparatively longer than that of similarly-situated offenders.

       {¶ 20} In general, it is presumed that prison terms will be served concurrently. R.C.

2929.41(A); State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 16,

¶ 23 (“judicial fact-finding is once again required to overcome the statutory presumption

in favor of concurrent sentences”).     However, after determining the sentence for a

particular crime, a sentencing judge has discretion to order an offender to serve individual

counts of a sentence consecutively to each other or to sentences imposed by other courts.

R.C. 2929.14(C)(4) permits a trial court to impose consecutive sentences if it finds that


1
 As previously stated, only three counts of rape were dismissed as part of Watson’s plea
deal with the State (Counts I, II, and III). The last count to be dismissed was Count VI,
GSI.
                                                                                           -8-


(1) consecutive sentencing is necessary to protect the public from future crime or to

punish the offender, (2) consecutive sentences are not disproportionate to the

seriousness of the offender's conduct and to the danger the offender poses to the public,

and (3) any of the following applies:

       (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

       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.

       {¶ 21} At disposition, the trial court stated the following in regard to the imposition

of consecutive sentences:

       I do find that consecutive sentences are necessary to protect the public from

       future crimes, to punish the Defendant, that they’re not disproportionate to

       the seriousness of his conduct and the danger he poses to the public, and

       that these multiple offenses were committed as part of a course of conduct

       and the harm caused was so great or unusual that no single prison term
                                                                                        -9-


      adequately reflects the seriousness of his conduct.

      I understand this was a guilty plea and in some respects an

      acknowledgment of responsibility. I also understand that in exchange for

      that guilty plea[,] multiple rape offenses were dismissed.

      {¶ 22} We have said that “a trial court may rely on ‘a broad range of information’

at sentencing.” State v. Bodkins, 2d Dist. Clark No. 10-CA-38, 2011-Ohio-1274, ¶ 43,

quoting State v. Bowser, 186 Ohio App.3d 162, 2010-Ohio-951, 926 N.E.2d 714, ¶ 13 (2d

Dist.). “The evidence the court may consider is not confined to the evidence that strictly

relates to the conviction offense because the court is no longer concerned * * * with the

narrow issue of guilt.” (Citation omitted.) Bowser at ¶ 14. “Among other things, a court

may consider hearsay evidence, prior arrests, facts supporting a charge that resulted in

an acquittal, and facts related to a charge that was dismissed under a plea agreement.”

(Citation omitted.) Bodkins at ¶ 43. Even “ ‘[u]nindicted acts * * * can be considered in

sentencing without resulting in error when they are not the sole basis for the sentence.’ ”

State v. Cook, 8th Dist. Cuyahoga No. 87265, 2007-Ohio-625, ¶ 69, quoting State v.

Bundy, 7th Dist. Mahoning No. 02 CA 211, 2005-Ohio-3310, ¶ 86. Therefore, the trial

court was entitled to consider the dismissed rape counts when it imposed consecutive

sentences upon Watson.

      {¶ 23} Furthermore, pursuant to State v. Wilson, 2d Dist. Montgomery No. 24978,

2012-Ohio-4756, we have held that “a sentencing court is not required to elevate resource

conservation above seriousness and recidivism factors.” See also State v. Henry, 12th

Dist. Butler No. CA2013-03-050, 2014-Ohio-1318, citing Wilson. Having reviewed the

record, we cannot conclude, pursuant to R.C. 2929.11(A), that the court was not guided
                                                                                       -10-


by the overriding purposes of felony sentencing in imposing the maximum prison term, or

that Watson's sentence imposes an unnecessary burden on state or local government

resources. “Where the interests of public protection and punishment are well served by

a prison sentence, the claim is difficult to make that the prison sentence imposes an

unnecessary burden on government resources.” State v. Bowshier, 2d Dist. Clark No. 08-

CA-58, 2009-Ohio-3429, ¶ 14, citing Griffin and Katz, Ohio Felony Sentencing Law, 966

(2007 Ed.).

      {¶ 24} As previously stated, Watson pled guilty to two counts of GSI, wherein he

was accused of sexually abusing his own daughter who has cerebral palsy and autism,

as well as developmental delays.      Additionally, while Watson admitted that he did

sexually abuse M., he attempted to minimize his criminal conduct, stating that he only

touched M.’s vagina in order to show her how to masturbate properly and how to “finish

faster.” PSI at 1. Accordingly, we conclude that the trial court’s findings were supported

by the record.

      {¶ 25} As previously stated, in ordering that the maximum sentences for Watson's

two offenses be served consecutively, the trial court strictly adhered to the language of

R.C. 2929.14(C)(4)(b), finding consecutive sentences “necessary to protect the public

from future crime, to punish [Watson]” and “not disproportionate to the seriousness of

[Watson]'s conduct and to the danger he poses to the public,” and further finding that the

two offenses “were committed as part of a course of conduct” and the harm caused

thereby “was so great or unusual that no single prison term adequately reflects the

seriousness of [Watson]'s conduct.” Accordingly, the trial court's maximum consecutive

sentence findings were not clearly and convincingly unsupported by the record or contrary
                                                                                     -11-


to law.

          {¶ 26} Watson’s sole assignment of error is overruled.

          {¶ 27} Watson’s assignment of error having been overruled, the judgment of the

trial court is affirmed.

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



TUCKER, P.J. and HALL, J., concur.



Copies sent to:

John M. Lintz
Nicole Rutter-Hirth
Hon. Douglas M. Rastatter
