[Cite as State v. Roush, 2017-Ohio-1115.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                        Hon. William B. Hoffman, J.
                                                  Hon. John W. Wise, J.
-vs-
                                                  Case No. 2016 CA 00105
CARL E. ROUSH

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                      Criminal Appeal from the Court of Common
                                              Pleas, Case No. 2016 CR 00153


JUDGMENT:                                     Affirmed



DATE OF JUDGMENT ENTRY:                        March 27, 2017


APPEARANCES:

For Plaintiff-Appellee                        For Defendant-Appellant

JOHN D. FERRERO                               SEAN BUCHANAN
PROSECUTING ATTORNEY                          SLATER & ZURZ
RONALD MARK CALDWELL                          One Cascade Plaza
ASSISTANT PROSECUTOR                          Suite 2200
110 Central Plaza South, Suite 510            Akron, Ohio 44308
Canton, Ohio 44702-1413
Stark County, Case No. 2016 CA 00105                                                   2

Wise, J.

       {¶1}    Appellant Carl E. Roush appeals the imposition of consecutive sentences

by the Stark County Court of Common Pleas following his pleas of guilty to two counts of

pandering sexually oriented matter involving a minor and two counts of pandering

obscenity involving a minor. Appellee is the State of Ohio.

                                 STATEMENT OF THE FACTS

       {¶2}    In February, 2016, Appellant Carl E. Roush was charged by indictment with

two counts of pandering sexually oriented matter involving a minor, in violation of R.C.

§2907.322(A)(1), and two counts of pandering obscenity involving a minor, in violation of

R.C. §2907.321(A)(1).

       {¶3}    These charges arose from Roush downloading child pornography onto his

laptop and desktop computers. This pornography was described by the State in its bill of

particulars:

               Count 1: Pandering Sexually Oriented Matter:

               "A [3:49] video labeled "(ptch) 9 yo blonde daughter fingered in

       camping tent part 2.avi" and/or "0005-000" which depicts an adult male

       touching a female child's breasts and vagina in a tent;

               "A [15:08] video labeled "0002-000" which depicts 2 slightly

       pubescent female children touching each other's breasts and vaginas and

       engaging in oral sex."

               Count 2: Pandering Obscenity:

               "A [9:13] video labeled "(ptsc) young video models- nadiaa (4).avi

       which depicts a female child in a bra and thong underwear that has been
Stark County, Case No. 2016 CA 00105                                                   3


      cut. The child is made to pose in various positions, which cause the child's

      breasts and vagina to become exposed."

             Count 3: Pandering Sexually Oriented Matter:

             "A [10:01] video labeled "0006-000" which depicts a naked female

      child in a bathtub. During the video the child is given a hot dog which she

      inserts into her vagina and anus.

             "A [1:05] video labelled "porno-06.mpg" and/or "0009-000" which

      depicts a prepubescent female's buttocks and vagina. An adult male

      performs oral sex on the child and then rubs his penis on the child's vagina

      until he ejaculates." Count 4 [Pandering Obscenity]:

             Count 4: Pandering Obscenity:

             "A [14:58] video labelled ["](ptsc) reallola info 12 yr Christmas

      tinsil.avi" and/or "0004-000" which depicts a pubescent female clothed and

      standing near a Christmas tree. During the video the child undresses,

      exposing her breast and vagina.

             "A [2:00] labeled "0008-000" video which depicts a pubescent female

      child in a black bra. The child's breasts and nipples can be seen through

      the bra. The child poses in various positions exposing her vagina and anus.

      At      the      beginning        of     the     video       the      words

      "YOUNGVIDEOMODELS.NETNADIA#12 13 YEARS OLD" are seen."

      {¶4}   The State made an offer to recommend a five-year prison sentence in

exchange for Appellant’s plea of guilty to the charges. Appellant rejected the plea offer

and chose instead to plead guilty to the charges and take advantage of a sentencing
Stark County, Case No. 2016 CA 00105                                                        4


hearing to present evidence in mitigation of sentence.

       {¶5}   On March 6, 2016, Appellant entered a plea of guilty, as charged in the

indictment.

       {¶6}   On April 21, 2016, the trial court conducted a sentencing hearing.

       {¶7}   Thus, after Roush pleaded guilty to the charged offenses, the trial court

conducted an evidentiary hearing relative to sentencing.

       {¶8}   At the sentencing hearing, the State presented the testimony of

investigating officer, retired Detective Bobby Grizzard of the Massillon Police Department.

Det. Grizzard explained that he worked with a specialized unit known as the Ohio Internet

Crimes Against Children Task Force, or ICAC, whose work is predominantly internet

based looking for individuals utilizing the Internet for crimes related to children, including

the downloading of child pornography. Det. Grizzard explained that he used a computer

program that allows law enforcement to target and locate those offenders who are

downloading child pornography via file-sharing programs. As a result of this investigation,

Detective Grizzard obtained a search warrant to search Appellant’s home to locate his

computers for evidence of illegal activity.

       {¶9}   Upon executing the search warrant, Det. Grizzard found that Appellant's

bedroom door was locked, and his computer was located inside this room. Appellant lived

with wife and their minor daughter at the time. Appellant stated that he used the computer

90% of the time, whereas his wife used it the other 10%.

       {¶10} Once the computers were seized, they were examined to see if they

contained child pornography. The search of these computers revealed that Appellant had

downloaded child pornography by using a peer-to-peer network (ARES), which is a file
Stark County, Case No. 2016 CA 00105                                                       5


sharing program. Appellant used search terms with this program that sought out child

pornography. (T. 11-15, 20-22). In all, 33 videos were found on Appellant's computer.

       {¶11} Det. Grizzard testified that he also interviewed Appellant. During the

interview Appellant admitted that he had used the explicit search terms for child

pornography, and that he had received and downloaded on his peer-to-peer file sharing

program the child pornography found on his computer. Appellant said that he searched

out child pornography because he was curious. He further admitted to watching the child

pornography that he had downloaded and that he had masturbated while watching it.

Appellant's description of the downloaded videos corroborated what was found on his

computer. Appellant told Det. Grizzard that the last time he had watched the child

pornography was two months before their conversation.

       {¶12} Detective Grizzard stated that what troubled him the most in this case was

that Appellant was sexually aroused by this pornography, which included children being

raped and subjected to nothing less than torture by adult men. (T. 16-20, 22, 25).

       {¶13} Some of the videos found on Appellant's computers were played in open

court for the benefit of the trial court. (T. 10-38).

       {¶14} Appellant, in his defense, had his seven children and stepchildren, his best

friend, and his wife, take the stand and testify as to his character. They all testified that

he was a great father, stepfather, friend, and husband. (T. 39-57). Appellant chose not to

take the stand and testify. Instead, at the conclusion of the hearing, he offered an unsworn

statement admitting that he watched this child pornography, but that it was out of boredom

and curiosity. He then begged for the court's forgiveness, and promised it would never

happen again. (T. 65-66).
Stark County, Case No. 2016 CA 00105                                                      6


       {¶15} The trial court, after viewing the content of the videos and hearing the

character testimony in support of Appellant, imposed an aggregate prison term of eight

(8) years: two (2) years for each of the four (4) counts, to run consecutively with each

other, and further classified Appellant as a Tier III sex offender.

       {¶16} The trial court filed a sentencing judgment entry on April 27, 2016, and then

filed a nunc pro tunc sentencing judgment entry on May 19, 2016, which solely corrected

the citation to the statute for the pandering obscenity offenses.

       {¶17} Appellant now appeals, raising the following error for review:

                                ASSIGNMENT OF ERROR

       {¶18} “I. DID THE COURT ERR BY SENTENCING MR. ROUSH TO

CONSECUTIVE SENTENCES?”

                                                 I.

       {¶19} In his sole Assignment of Error, Appellant argues that the trial court erred in

imposing consecutive sentences. We disagree.

       {¶20} Appellant argues his sentence is contrary to law and therefore should be

reversed.

       {¶21} The two-step approach set forth in State v. Kalish, 120 Ohio St.3d 23, 2008–

Ohio–4912, 896 N.E.2d 124 no longer applies to appellate review of felony sentences.

We now review felony sentences using the standard of review set forth in R.C. §2953.08.

State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002, 59 N.E.3d 1231, ¶ 22; State v.

Howell, 5th Dist. Stark No. 2015CA00004, 2015–Ohio–4049, ¶ 31.

       {¶22} R.C. §2953.08(G)(2) provides we may either increase, reduce, modify, or

vacate a sentence and remand for resentencing where we clearly and convincingly find
Stark County, Case No. 2016 CA 00105                                                           7


that either the record does not support the sentencing court's findings under R.C.

§2929.13(B) or (D), §2929.14(B)(2)(e) or (C)(4), or 2929.20(l), or the sentence is

otherwise contrary to law. See, also, State v. Bonnell, 140 Ohio St.3d 209, 2014–Ohio–

3177, 16 N.E.2d 659, ¶28.

       {¶23} Clear and convincing evidence is that evidence “which will provide 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), paragraph three of the

syllabus. “Where the degree of proof required to sustain an issue must be clear and

convincing, a reviewing court will examine the record to determine whether the trier of

facts had sufficient evidence before it to satisfy the requisite degree of proof.” Id. at 477,

120 N.E.2d 118.

       {¶24} Appellant, in his brief, asserts that the consecutive sentences were contrary

to law because the trial court did not consider the R.C. §2929.14 factors at the sentencing

hearing.

       {¶25} R.C. §2929.14 (C) states as follows:

              (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:
Stark County, Case No. 2016 CA 00105                                                     8


              (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. (Emphasis added).

       {¶26} Appellant argues that under section (b), the trial court’s finding were

contrary to law because the court considered the nature of the videos themselves as to

seriousness of the conduct and that the court did not view all 7 videos and that not all of

the videos were as violent or predatory in nature as those viewed by the court.

       {¶27} At the sentencing hearing, in support of its imposition of consecutive

sentences, the trial court stated:

              Additionally, the Court has considered all relevant seriousness and

       recidivism factors including, but not limited to, the length of time over which

       the offense occurred, the fact that the sharing and downloading of the

       videos by the Defendant revictimized each victim, and the graphic and

       predatory nature of the videos, which the Court notes that while not a
Stark County, Case No. 2016 CA 00105                                                    9


      specified serious factor, it is relevant to the determination of a sentence in

      this crime.

             …

             The Court further orders that the sentences shall be run consecutive

      to one another, and the Court finds as follows: That consecutive sentences

      are necessary to protect the public from future crime. That consecutive

      sentences are necessary to punish the Defendant, that they are not

      disproportionate to the seriousness of the Defendant's conduct and the

      danger posed by the actions committed. The Court further finds that the

      offenses were committed as a course of conduct, and that the harm by

      those offenses was so great that no single prison term is adequate to reflect

      the seriousness of the conduct.

             Additionally, in calculating the sentence, the Court has taken steps

      to ensure that the sentence is not based on any impermissible purposes,

      that it is consistent with similar offenses committed by like offenders. And

      that the sentence is proportional to the harm caused and the impact upon

      the victims.

             And the Court will note that the Court has taken great steps to ensure

      that the sentence is based upon the offender's conduct and not the conduct

      of the offenders in the video and their actions. That the Court finds that this

      Defendant's conduct, by sharing those videos with others, contributed to the

      harm created by the individuals who participated in making those videos.

      (T. 77-79).
Stark County, Case No. 2016 CA 00105                                                       10


       {¶28} Upon review, from the trial court's statements at the sentencing hearing as

set forth above, and the language utilized in the sentencing entry, it is clear that the trial

court complied with the dictates of R.C. §2929.14(C)(4). See State v. Bonnell, 140 Ohio

St.3d 209, 16 N.E.3d 659, 2014–Ohio–3177, ¶37; State v. Crawford, 12th Dist. Clermont

No. CA2012–12–088, 2013–Ohio–3315 at ¶17. The trial court also set forth the R.C.

§2929.14(C)(4) factors in its sentencing entry.

       {¶29} The record reflects the trial court found that consecutive sentences are

necessary to protect the public from future crime by the offender.

       {¶30} Appellant also argues that the trial court erred in referencing section (c) in

the sentencing entry wherein it added the language “AND/OR the defendant’s history of

criminal conduct …”

       {¶31} Upon review, we do not find, as argued by Appellant, that the trial court (1)

either mistakenly believed Appellant had a criminal history, or (2) the trial court’s use of

boiler-plate language reflects lack of attention to the sentencing factors.

       {¶32} This Court finds that while the trial court did include an additional,

superfluous ground for imposing consecutive sentences, the trial court's findings and

considerations were well-documented in the record. The trial court did not make an R.C.

§2929.14(C)(4)(c) finding at the sentencing hearing. Rather, the trial court specifically

noted at the sentencing hearing that Appellant had no prior criminal history.

       {¶33} The trial court was not required to give a talismanic incantation of the words

of the statute at the sentencing hearing. Appellant's sentence was not otherwise clearly

and convincingly contrary to law.
Stark County, Case No. 2016 CA 00105                                               11


      {¶34} Accordingly, Appellant's sole Assignment of Error is overruled.

      {¶35} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas of Stark County, Ohio, is affirmed.


By: Wise, J.

Gwin, P. J., and

Hoffman, J., concur.



JWW/d 0307
