[Cite as State v. Mitchell, 2017-Ohio-6888.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 105053



                                       STATE OF OHIO
                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                  BRIAN A. MITCHELL
                                                        DEFENDANT-APPELLANT




                                               JUDGMENT:
                                                AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                    Case No. CR-16-603899-A

        BEFORE:           McCormack, J., Keough, A.J., and Kilbane, J.

        RELEASED AND JOURNALIZED: July 20, 2017
ATTORNEY FOR APPELLANT

Rick L. Ferrara
2077 East 4th Street, Second Floor
Cleveland, OH 44114


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

By: Kristin M. Karkutt
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:

       {¶1} Defendant-appellant Brian Mitchell appeals from the consecutive sentences

imposed by the Cuyahoga County Court of Common Pleas for his convictions of four

counts of sexual battery. Mitchell was the youth minister at Columbia Road Baptist

Church. During a two-month period of time in 2015, he engaged in sexual conduct with

a 16-year-old girl who was a member of the church’s youth ministry (“victim” hereafter).

 He pleaded guilty to four counts of sexual battery and received consecutive prison terms

totaling ten years.     On appeal, he argues the trial court failed to make the statutory

findings necessary to impose consecutive sentences.           For the following reasons, we

affirm the judgment of the Cuyahoga County Court of Common Pleas.

       {¶2} Mitchell was indicted with ten counts of sexual battery in violation of R.C.

2907.03(A)(12).       Under that statute, sexual battery is a third-degree felony.   The statute

prohibits a cleric from engaging in sexual conduct with a minor who is a member of the

cleric’s congregation.      Mitchell, 31 years old and a father of three young children,

allegedly engaged in sexual intercourse with the 16-year-old victim on ten occasions

between August 15, 2015, and September 25, 2015.

       {¶3} Mitchell pleaded guilty to four of the ten counts of sexual battery and the

remaining counts were nolled. Before sentencing, he submitted 33 letters from friends

and family vouching for his character.       At sentencing, the trial court heard from several

members of the victim’s family about the devastating effect Mitchell’s conduct had on the

victim and her family, who began attending the church years ago when the victim’s father
passed away.     The prosecutor then read a long letter from the victim, which revealed

how Mitchell took advantage of his leadership position in the church’s youth group and

pursued the victim for a sexual relationship.       Over time, Mitchell worked to earn the

victim’s trust, telling her he thought of her as a daughter.   The victim believed Mitchell

was someone whom she could turn to for advice and guidance.          Mitchell then began to

pursue her intensively by sending her frequent text messages.         The tone of the text

messages turned from innocent to serious over time. Mitchell also began to confide in

the victim regarding his marital problems.           The relationship then turned sexual.

Mitchell would come to the victim’s home while her mother was working and engage in

sexual intercourse with her in his car.     Even after the events had come to light and

Mitchell was arrested for his offenses, the victim was startled to find that he was still

sending her emails under a fictitious name professing his love for her.

       {¶4} The trial court sentenced Mitchell to five years of prison on each of the four

counts of sexual battery, with Counts 2 and 6 running consecutive to each other. On

appeal, Mitchell raises two assignments of error:

       1.      The trial court committed plain error by failing to make the findings
               necessary to impose consecutive sentences.

       2.      The trial court erred when it imposed a term of imprisonment of ten

               years that was clearly and convincingly disproportionate to the

               danger appellant posed to the public.
       {¶5} A review of the argument under the two assignments of error shows that

both claims relate to the disproportionality finding required for an imposition of

consecutive sentences. We address the two assignments together.

       {¶6} H.B. 86, enacted in 2011, revived a presumption of concurrent sentences.

Consecutive sentences can be imposed only if the trial court makes the required findings

pursuant to R.C. 2929.14(C)(4). State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177,

16 N.E.3d 659.      Pursuant to R.C. 2929.14(C)(4), in order to impose consecutive

sentences, the trial court must find that consecutive sentences are “necessary to protect

the public from future crime or to punish the offender,” that such sentences “are not

disproportionate to the seriousness of the offender’s conduct and to the danger the

offender poses to the public,” and that one 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 postrelease 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.
       {¶7} “When imposing consecutive sentences, a trial court must state the required

findings as part of the sentencing hearing, and by doing so it affords notice to the offender

and to defense counsel.” Bonnell at ¶ 29, citing Crim.R. 32(A)(4). “Findings,” for

these purposes, means that “‘the [trial] court must note that it engaged in the analysis’ and

that it ‘has considered the statutory criteria and specifie[d] which of the given bases

warrants its decision.’” Id. at ¶ 26, quoting State v. Edmonson, 86 Ohio St.3d 324, 326,

715 N.E.2d 131 (1999).     However, “a word-for-word recitation of the language of the

statute is not required, and as long as the reviewing court 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.”       Bonnell at ¶ 29.   The

trial court is not required to give a “talismanic incantation” of the words of the statute,

provided the necessary findings can be found in the record. Id. at ¶ 37.

       {¶8} In addition, in an appeal involving consecutive sentences, such as the

instant case, we are required under R.C. 2953.08(G)(2)(a) to review the record, including

the findings underlying the sentence, and, to modify or vacate the sentence when          we

clearly and convincingly find that the record does not support the trial court’s findings

under R.C. 2929.14(C)(4). Id. at ¶     28.

       {¶9} Here, our review of the sentencing transcript reflects that the trial court

narrated extensively on the lifetime of trauma created by the        horrific nature of the

offenses committed by Mitchell. The court stressed that Mitchell’s position of spiritual

trust and authority enabled him to earn the victim’s trust readily, rendered his relationship
with the victim “extremely abusive.”    The court   characterized the crime in this case as

a “power crime” perpetrated by one in the position of authority against a powerless

victim.   The court characterized the emotional and psychological damage described by

the victim as classic signs of post-traumatic stress disorder.           Before imposing

consecutive sentences on two of the four counts of sexual battery, the court stated

              So the Court having considered all these things and the nature of this
       offense, and the specific facts of this offense * * * [a]nd the Court now is
       confronted with what is an appropriate consequence[.] How much time in
       prison is necessary to punish you? How much time is not disproportionate
       to what you did? How much time is necessary to protect the community?
       How much time is necessary due to the unusual amount of harm, the great
       amount of harm? And there’s great harm here. And this is — this test is
       not an easy test in your situation.

               And your sort of delusional sort of excuse, some sort of emotion and
       love involved with this is troubling. That’s troubling. Because that’s —
       that’s extremely delusional, and it will take considerable work on your part
       to see this could never be anything but abusive. Never could it have been.
        And that’s why these sex offender laws are in place. That’s why there’s
       such harsh consequences.
       And so I’m balancing all of this. I’ve considered all of those factors.

       ***
       I am going to run Counts 2 and 6 consecutive to each other * * * . The
       amount of harm is so great or unusual a single prison sentence is not
       adequate.

(Emphasis added.)

       {¶10} Mitchell argues the trial court failed to make the finding regarding

proportionality and also argues the record clearly and convincingly shows that his

sentence was disproportionate to the danger he posed to the pubic.    We disagree with his

contentions.
       {¶11} While the trial court did not recite the statutory finding word for word

regarding proportionality, we are able to clearly discern that the trial court engaged in the

correct analysis and to determine that the record contains evidence to support the finding.

 Bonnell at ¶      29.    The court signaled its awareness of the necessity of the

proportionality finding when it stated, “How much time in prison is necessary to punish

you? How much time is not disproportionate to what you did?              How much time is

necessary to protect the community?”        The court’s reasoning, although not a verbatim

recitation of the statutory finding that “the consecutive sentences are not disproportionate

to the seriousness of the offender’s conduct and to the danger the offender poses to the

public,” reflects that the trial court engaged in the appropriate analysis and also placed the

finding on the record.

       {¶12} Furthermore, our review of the record supports the trial court’s finding.

The victim’s father passed away while she was at a very young age, and she was raised in

the church.   While an impressionable teenager, she joined the church’s youth ministry to

seek guidance and direction for her life.    Mitchell, taking advantage of    his position of

spiritual authority and the victim’s faith in God, manipulated and groomed the victim for

his own sexual gratification.

       {¶13} Mitchell argues that the record does not support a finding that his

consecutive sentences are not disproportionate to the danger he poses to the public

because, as a convicted felon, he will no longer be a member of the clergy and the victim

would reach the age of majority within two years. We note that proportionality finding
regarding “the danger the offender poses to the public” is not the same as recidivism for

the same crime.        Moreover, there are no specific statutory factors for the

danger-to-the-public finding; neither is the trial court obligated to state reasons to support

its finding. State v. Jackson, 8th Dist. Cuyahoga No. 101575, 2015-Ohio-1023, ¶ 14,

citing Bonnell at syllabus.    Mitchell’s brazen betrayal of the congregation who had

entrusted him to provide spiritual leadership for their young followers could be one of the

factors when the court assessed the danger he poses to the public. Given the facts of this

case, we do not “clearly and convincingly” find that the record does not support the trial

court’s finding. The first and second assignment of error are without merit.

       {¶14} Judgment affirmed.

       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



_______________________________________
TIM McCORMACK, JUDGE

KATHLEEN ANN KEOUGH, A.J., and
MARY EILEEN KILBANE, J., CONCUR
