[Cite as State v. Hottenstein, 2019-Ohio-3690.]




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

 STATE OF OHIO                                         :
                                                       :
          Plaintiff-Appellee                           :   Appellate Case Nos. 2017-CA-89 &
                                                       :                     2017-CA-90
 v.                                                    :
                                                       :   Trial Court Case Nos. 2017-CR-112 &
 QURAN HOTTENSTEIN                                     :                        2017-CR-263
                                                       :
          Defendant-Appellant                          :
                                                       :   (Criminal Appeal from
                                                            Common Pleas Court)

                                                  ...........

                                                  OPINION

                          Rendered on the 13th day of September, 2019.

                                                  ...........

ANDREW P. PICKERING, Atty. Reg. No. 0068770, Clark County Prosecutor’s Office,
Appellate Division, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
      Attorney for Plaintiff-Appellee

GLENDA A. SMITH, Atty. Reg. No. 0070738, P.O. Box 15353, Wyoming, Ohio 45215
    Attorney for Defendant-Appellant

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

HALL, J.
                                                                                         -2-




       {¶ 1} Quran Hottenstein appeals from his conviction and sentence following a

negotiated guilty plea to felony charges of unlawful sexual conduct with a minor and failure

to appear.

       {¶ 2} In his sole assignment of error, Hottenstein challenges the trial court’s

sentencing decision. His assignment of error states that “the trial court erred in not

complying with the seriousness of the crime and recidivism factors.” More specifically, he

argues that the trial court abused its discretion in finding that his crime was serious and

that he was likely to repeat his behavior.

       {¶ 3} The record reflects that Hottenstein originally faced felony charges in four

separate cases. In Clark C.P. No. 17-CR-0087A, he was charged with one count of

aggravated burglary, a first-degree felony. In Clark C.P. No. 17-CR-0112, he was charged

with one count of unlawful sexual conduct with a minor, a fourth-degree felony. In Clark

C.P. No. 17-CR-0263, he was charged with one count of failure to appear, a fourth-degree

felony, in connection with the aggravated-burglary case. Finally, in Clark C.P. No. 17-CR-

0291, he was charged with one count of failure to appear, a fourth-degree felony, in

connection with the unlawful-sexual-conduct case.

       {¶ 4} As part of a plea agreement, Hottenstein pled guilty to unlawful sexual

conduct with a minor in Clark C.P. No. 17-CR-0112. He also pled guilty to failure to appear

in connection with the aggravated-burglary case in Clark C.P. No. 17-CR-0263. In

exchange for the pleas, the State dismissed the aggravated-burglary case and the other

failure-to-appear case. The trial court accepted the pleas and ordered a presentence

investigation report (PSI). After reviewing the report and holding a sentencing hearing,
                                                                                              -3-


the trial court imposed consecutive prison terms of 18 months for unlawful sexual conduct

with a minor and 12 months for failure to appear. At sentencing, the trial court made the

following findings in support of consecutive sentences: “The Court finds that consecutive

sentences are necessary to protect the public from future crime and punish the defendant

but not disproportionate to the seriousness of his conduct and the danger he poses to the

public and that the failure to appear was committed while the Defendant was awaiting

trial.” (Sentencing Tr. at 7). The trial court incorporated this finding into its judgment entry.

(Doc. # 9 in Clark C.P. No. 17-CR-263).

       {¶ 5} On appeal, Hottenstein does not specifically address the trial court’s findings

for consecutive sentences under R.C. 2929.14(C)(4). Instead, he focuses on the statutory

seriousness and recidivism factors in R.C. 2929.12. He argues that none of the “more

serious” factors in R.C. 2929.12(B) apply, that three “less serious” factors in R.C.

2929.12(C) apply, and that two factors apply under R.C. 2929.12(E) showing that

recidivism is “less likely.” Hottenstein also asserts that the purposes of felony sentencing

in R.C. 2929.11, particularly the need to protect the public from future crime, are not

implicated here because, with respect to the unlawful-sexual-conduct conviction, “this is

a case of two people who most likely committed a consensual act.” For the foregoing

reasons, Hottenstein contends that the trial court abused its discretion in imposing

consecutive sentences totaling two and one-half years. (Appellant’s brief at 5-8).

       {¶ 6} Upon review, we find Hottenstein’s argument to be unpersuasive. As a

preliminary matter, the issue before us is not whether the trial court abused its discretion

in imposing an aggregate sentence of two and one-half years. Hottenstein cites State v.

Murrell, 2d Dist. Montgomery No. 27610, 2018-Ohio-870, for the proposition that abuse-
                                                                                           -4-

of-discretion review applies. In the cited portion of Murrell, this court recognized a trial

court’s “full discretion” to impose any sentence within the authorized statutory range

without giving reasons or making findings for maximum or more-than-minimum

sentences. Id. at ¶ 11. This does not mean, however, that we review a trial court’s

sentencing decision for an abuse of discretion. Indeed, we “do not review a felony

sentence under an abuse of discretion standard. Instead, based upon the language of

R.C. 2953.08(G)(2), we may vacate or modify a felony sentence if we find by clear and

convincing evidence that the record does not support the sentence or the sentence is

otherwise contrary to law.” State v. Damiano, 2d Dist. Champaign No. 2017-CA-31, 2018-

Ohio-4761, ¶ 9 (citing cases).

       {¶ 7} Here Hottenstein’s individual sentences are not contrary to law because they

are within the authorized statutory range, and the trial court indicated in its judgment entry

that it had considered the principles and purposes of sentencing as well as the

seriousness and recidivism factors.1 Id. at ¶ 11. The trial court’s imposition of consecutive

sentences also is not contrary to law because it made the requisite findings. State v.

Brady, 2d Dist. Montgomery No. 27763, 2019-Ohio-46, ¶ 50. The only remaining question

is whether clear and convincing evidence exists to demonstrate that the record does not

support Hottenstein’s sentence. This standard applies to his individual sentences and to

the trial court’s consecutive-sentence findings. State v. Marcum, 146 Ohio St.3d 516,


1  Although the trial court did not reference those factors during the sentencing hearing,
“ ‘[o]n a silent record, a trial court is presumed to have considered the statutory purposes
and principles of sentencing, and the statutory seriousness and recidivism factors.’ ” State
v. Lumford, 2d Dist. Clark Nos. 2017-CA-71, 2017-CA-72, 2018-Ohio-1949, ¶ 7, quoting
State v. Goldblum, 2d Dist. Montgomery No. 25851, 2014-Ohio-5068, ¶ 50.
                                                                                           -5-


2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22-23.

       {¶ 8} The PSI report reflects that Hottenstein was 19 years old at the time of his

current offenses. His juvenile record included adjudications for unruliness, disorderly

conduct, resisting arrest, escape, domestic violence (which appears to have been

amended to disorderly conduct), another resisting arrest, and a probation violation. His

juvenile record included commitments to juvenile detention. As an adult, he had prior

convictions for theft and falsification that resulted in jail time. With regard to the present

case, the 15-year-old victim of the unlawful-sexual-conduct offense alleged that

Hottenstein had refused to leave her house when she ordered him out. According to the

victim, he then threw down her cell phone and forcibly raped her. He then ran out the

back door and later was apprehended. For his part, Hottenstein claimed that the victim

invited him to her house, where she removed her own clothes and had sex with him. He

denied holding the victim down or throwing her phone. He theorized that she made up the

rape allegation to avoid getting into trouble with her aunt and grandmother. The State

pursued an unlawful-sexual-conduct charge rather than a rape charge. We note too that

as part of the plea agreement the State dismissed a second failure-to-appear charge and

a first-degree-felony aggravated-burglary charge in another case.

       {¶ 9} Hottenstein, who was 20 years old at the time of sentencing, reported that he

was unemployed and that he had abused alcohol and marijuana. He had an 11th-grade

education and scored high on the Ohio risk-assessment tool. The high score primarily

was attributable to his education, employment, neighborhood, and substance abuse.

Finally, the PSI report included a victim-impact statement from the victim’s

grandmother/guardian on behalf of the victim. According to the statement, the victim went
                                                                                       -6-


from being an A-B student before the incident to a D-F student afterward. The victim does

not like to venture outside or go places because she fears running into Hottenstein’s

family and friends. According to the grandmother, the victim no longer is the “happy-go-

lucky and smiley girl she used to be.”

      {¶ 10} As set forth above, Hottenstein contends none of the “more serious” factors

in R.C. 2929.12(B) apply to him. The trial court could have concluded, however, that those

factors did apply. The victim-impact statement reasonably supports an inference that the

15-year-old victim suffered mental injury. It also suggests that she may have suffered

serious psychological harm as a result of the offense. These findings are supported by

the dramatic drop-off in the victim’s academic performance, her negatively changed

personality, and her reluctance to leave the house for fear that she might encounter

Hottenstein’s family and friends. Even if we accept that the victim voluntarily engaged in

sex with Hottenstein, the unlawful-sexual-conduct statute protects immature victims from

suffering mental or psychological harm after engaging in sexual conduct with older

partners.

      {¶ 11} As for Hottenstein’s argument that three “less serious” factors apply, we

recognize that, under his version of events, the victim may have “facilitated” the offense

if she removed her own clothes and approached Hottenstein for sex. But the trial court

was not required to believe his version of the event. Additionally, we are unpersuaded

that he did not cause or expect to cause physical harm to the victim thereby making

Hottenstein’s offense less serious than conduct normally constituting unlawful sexual

conduct with a minor. Although this offense may typically involve consensual activity,

which may not cause physical harm, this argument also is predicated on believing his
                                                                                         -7-


version of events rather than the victim’s. Finally, we are unpersuaded that the slightly

more than four-year age difference between Hottenstein and the victim necessarily

mitigated the seriousness of his offense.

       {¶ 12} Regarding the likelihood of recidivism, Hottenstein contends two factors

show recidivism is unlikely: (1) the offense was committed under circumstances not likely

to recur and (2) he showed genuine remorse. The trial court was not required to find either

of these factors applicable. It is not apparent on this record whether an unlawful-sexual-

conduct offense is unlikely to recur or not. As for genuine remorse, the trial court

reasonably could have doubted that claim in light of Hottenstein’s failure to appear for

court proceedings in the unlawful-sexual-conduct case and the aggravated-burglary case.

In addition, the record contains evidence indicating the presence of facts making

recidivism more likely. Hottenstein had a history of juvenile adjudications and had served

time in juvenile commitment. He also had served jail time as an adult for theft and

falsification convictions in April 2016. In light of Hottenstein’s repeated run-ins with the

law, the trial court reasonably could have concluded that he previously had not been

rehabilitated satisfactorily or had not responded favorably to prior sanctions. In short,

reviewing the record in the context of the statutory seriousness and recidivism factors

fails to persuade us that the trial court’s prison sentence clearly and convincingly is

unsupported by the record.

       {¶ 13} Although Hottenstein does not specifically address the trial court’s

consecutive-sentence findings, we also conclude that the record does not clearly and

convincingly fail to support them. Based on the information in the PSI report and all of the

considerations addressed above, we are unable to find clear and convincing evidence in
                                                                                       -8-


the record controverting the trial court’s R.C. 2929.14(C)(4) findings that consecutive

sentences were necessary and not disproportionate to the seriousness of his conduct

and the danger he poses to the public, and that his failure-to-appear was committed while

he was awaiting trial on other charges.

      {¶ 14} Hottenstein’s assignment of error is overruled, and the judgment of the

Clark County Common Pleas Court is affirmed.

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



DONOVAN, J. and FROELICH, J., concur.


Copies sent to:

Andrew P. Pickering
Glenda A. Smith
Hon. Douglas M. Rastatter
