[Cite as State v. Moss, 2015-Ohio-3466.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                :       JUDGES:
                                             :       Hon. W. Scott Gwin, P.J.
        Plaintiff - Appellee                 :       Hon. John W. Wise, J.
                                             :       Hon. Craig R. Baldwin, J.
-vs-                                         :
                                             :
CODY R. MOSS                                 :       Case No. 14-CA-52
                                             :
        Defendant - Appellant                :       OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Fairfield County
                                                     Court of Common Pleas, Case No.
                                                     2013 CR 00576




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    August 24, 2015




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

GREGG MARX                                           DAVID A. SAMS
Fairfield Prosecuting Attorney                       Box 40
                                                     West Jefferson, OH 43162
By: ANDREA GREEN
Assistant Prosecuting Attorney
239 W. Main Street, Suite 101
Lancaster, OH 43130
Fairfield County, Case No. 14-CA-52                                                    2

Baldwin, J.

       {¶1}   Appellant Cody R. Moss appeals a judgment of the Fairfield County

Common Pleas Court convicting him of two counts of robbery (R.C. 2911.02(A)(2)) and

sentencing him to five years incarceration on each count, to be served consecutively.

Appellee is the State of Ohio.

                             STATEMENT OF FACTS AND CASE

       {¶2}   At 8:00 p.m. on January 9, 2013, appellant entered a Circle K store in

Lancaster, Ohio. Appellant's face was covered by his clothing so that the clerk could

only see his eyes. Appellant approached the clerk and moved his coat aside to display

what she believed to be a black hand gun. He asked the clerk for all the money in the

register. She gave the money to appellant, and he fled on foot, discarding his jacket.

The clerk called 911 and explained that she had been robbed at gunpoint. She called

the store manager and locked the doors to the store. The manager arrived to find the

clerk crying and upset, and it took nearly thirty minutes for her to calm down enough to

explain what had happened.

       {¶3}   On January 11, 2013, appellant went into the Fairfield National Bank in

Lancaster several times over the course of the afternoon. On his final visit to the bank,

appellant, who was wearing dark-colored face paint, wrote a note on a checking deposit

slip stating that he had a gun, and instructing the teller to empty her register.     He

handed the note to a teller, who gave appellant the money. Appellant fled on foot,

discarding his jacket and a winter hat.

       {¶4}   Police were able to match the discarded clothing to the clothing appellant

was wearing on surveillance videos from the Circle K and the bank. Further, forensic
Fairfield County, Case No. 14-CA-52                                                      3


scientists concluded that appellant's DNA was a match to the clothing found at both

scenes. Appellant's roommate saw appellant putting on face paint on the day of the

bank robbery, and appellant admitted to his roommate that he robbed a bank and a

Circle K.

       {¶5}   Appellant was indicted by the Fairfield County Grand Jury with two counts

of robbery in violation of R.C. 2911.02(A)(2). The case proceeded to trial in the Fairfield

County Common Pleas Court.          Appellant was convicted as charged.         The court

sentenced appellant to five years incarceration on each count, to be served

consecutively. Appellant assigns a single error to his sentence:

       {¶6}   "THE TRIAL COURT ERRED WHEN IMPOSING CONSECUTIVE

PRISON TERMS."

       {¶7}   In Ohio, there is a statutory presumption in favor of concurrent sentences

for most felony offenses. R.C. 2929.41(A). The trial court may overcome this

presumption by making the statutory, enumerated findings set forth in R.C.

2929.14(C)(4). State v. Bonnell, 140 Ohio St.3d 209, 2014–Ohio–3177, 16 N.E.3d 659,

¶ 23. R.C. 2929.14(C)(4) provides:

                    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
Fairfield County, Case No. 14-CA-52                                                       4


              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 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.

       {¶8}   In Bonnell, supra, at syllabus, the Supreme Court of Ohio held that in

order to impose consecutive terms of imprisonment, a trial court is required to make the

findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate its

findings into its sentencing entry, but it has no obligation to state reasons to support its

findings. Furthermore, the sentencing court is not required to recite “a word-for-word

recitation of the language of the statute.” Id. at ¶ 29. “[A]s long as the reviewing court
Fairfield County, Case No. 14-CA-52                                                  5


can discern that the trial court engaged in the correct analysis and can determine that

the record contains evidence to support the findings, consecutive sentences should be

upheld.” Id.

       {¶9}    In the instant case, the court stated in the sentencing entry that

consecutive sentences were necessary pursuant to R.C. 2929.14(C)(4)(a) and (b). At

the sentencing hearing, the court discussed the statutory requirements for consecutive

sentencing and the findings required by Bonnell, supra. Sent. Tr. 19-20. The court

made the following statement on the record in support of its decision to sentence

appellant consecutively:

                     With regard to the concurrent/consecutive sentencing

               issue, the court finds that consecutive sentences are

               necessary to protect the public from future crime and to

               punish you and that consecutive sentences are not

               disproportionate to the seriousness of your conduct and to

               the danger that you pose to the public.

                     And if the Court - The Court also finds that these two

               offenses were committed as part of several courses of

               conduct. They occurred on two separate days, two separate

               locations, two separate victims or sets of victims and that the

               harm caused by these two offenses was so great or unusual

               that no single prison term for the offenses - for any of the

               offenses committed as part of the course of conduct -

               adequately reflects the seriousness of your conduct.
Fairfield County, Case No. 14-CA-52                                          6


                   In this case both of the victims were put in great fear

            by having even the threat of the firearm being used and Ms.

            Saunders, the Circle K clerk, the Court noticed during the

            trial that she was still visibly shaken not just being nervous

            about being in court, but she was upset about what had

            happened a year and a half earlier and there was still fear on

            her part.

                   The clerk from the Fairfield National Bank was also

            placed in fear and simply complied with the request because

            out of fear of what could happen.

                   And since we have the two separate victims, the two

            separate harms that were caused, the Court believes that

            consecutive sentences are necessary to adequately reflect

            the seriousness of your conduct and all of the other - meets

            all of the requirements of Ohio Revised Code Section

            2929.14.

                   And it also appears that although it was a

            misdemeanor offense - a misdemeanor traffic offense, that

            you were on community control at the time through municipal

            court at the time [sic] of these offenses.

                   And your attorney mentioned you had not had a prior

            felony record. That's accurate, but you have had starting in
Fairfield County, Case No. 14-CA-52                                                    7


             2011, a series of misdemeanor offenses, both criminal and

             traffic offenses." Sent. Tr. 21-22.

      {¶10} The trial court made all of the required findings to impose consecutive

sentences. Appellant argues that the harm caused to the victims was no more than

normally found in a robbery case and thus did not rise to the level of "great or unusual"

harm as required by the statute. The court specifically noticed that the Circle K clerk

was at the time of trial still visibly shaken and in fear because of the incident, beyond

what was normal while testifying in court. The prosecutor represented to the court at

the sentencing hearing that Ms. Saunders has changed shifts to avoid working at the

time of day when the offense occurred. The court indicated that it reviewed a letter from

the Vice President of the bank regarding the impact the crime had on the safety and

security of the bank employees. The court considered appellant's argument concerning

his lack of criminal history, but also noted that he was on community control at the time

of the offenses and that his record reflected a series of misdemeanor offenses

beginning in 2011.     The court's findings regarding consecutive sentencing were

supported by the record.
Fairfield County, Case No. 14-CA-52                                             8


      {¶11} The assignment of error is overruled.    The judgment of the Fairfield

County Common Pleas Court is affirmed. Costs are assessed to appellant.


By: Baldwin, J.

Gwin, P.J. and

Wise, J. concur.
