[Cite as State v. Keaton, 2019-Ohio-3814.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                     OTTAWA COUNTY


State of Ohio                                     Court of Appeals No. OT-19-006

        Appellee                                  Trial Court No. 18 CR 153

v.

James Keaton, II                                  DECISION AND JUDGMENT

        Appellant                                 Decided: September 20, 2019


                                             *****

        James J. VanEerten, Ottawa County Prosecuting Attorney, for appellee.

        Howard C. Whitcomb, III, for appellant.

                                             *****

        PIETRYKOWSKI, J.

        {¶ 1} Appellant, James Keaton, II, appeals the judgment of the Ottawa County

Court of Common Pleas, which convicted him of two counts of voyeurism in violation of
R.C. 2907.08(C) and (E)(5), felonies of the fifth degree, and sentenced him to a total

prison term of 24 months. For the reasons that follow, we affirm.

                         I. Facts and Procedural Background

       {¶ 2} On June 7, 2018, the Ottawa County Grand Jury indicted appellant on two

counts of voyeurism in violation of R.C. 2907.08(C) and (E)(5), felonies of the fifth

degree, and one count of disseminating matter harmful to juveniles in violation of R.C.

2907.31(A)(1) and (F), a misdemeanor of the first degree.

       {¶ 3} On December 17, 2018, appellant entered a plea of guilty to the two counts

of voyeurism. In exchange for his guilty plea, the state agreed to dismiss the count of

disseminating matter harmful to juveniles. In describing the factual basis for the charges,

the state explained that during the month of October 2014, appellant hid a tablet or other

electronic device in the bathroom of his home for the purpose of recording his minor

step-daughter as she prepared to get into the shower. In addition, during the year 2016,

the same step-daughter discovered a peep hole in her bedroom, on the other side of which

was a small closet where appellant kept his belongings. The state alleged that appellant

spied on the victim for the purpose of sexually arousing or gratifying himself.

       {¶ 4} Sentencing was held on February 8, 2019. At the sentencing hearing, the

victim’s father spoke of the mental and emotional trauma suffered by the victim.

Appellant’s attorney then spoke in mitigation, arguing that appellant was a good

candidate for community control. In particular, appellant’s attorney highlighted that

appellant has complied with the terms of his bond, has moved out of the county and away




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from the victim, has no substance abuse issues, has no criminal history aside from some

motor vehicle matters, has an excellent history of employment, and has family support.

Finally, appellant spoke on his own behalf. Appellant began by offering an apology to

the victim’s family. However, appellant then protested that he was not “this person that

they have portrayed me to be.” Appellant proceeded to state that the victim’s “coward

father” has a grudge against him and has been lying about him. Then appellant accused

the victim of doing bad things. Appellant concluded by expressing that he was sorry that

he put his friends and family through this ordeal, but stated “I am not this man.”

       {¶ 5} Upon hearing the statements from the parties, the trial court acknowledged

that it had considered the principles and purposes of sentencing under R.C. 2929.11. The

court also considered the seriousness and recidivism factors in R.C. 2929.12, and found

that the “more likely” recidivism factors outweighed the “less likely” factors, and that the

“more serious” factors outweighed the “less serious” factors. In addition, the trial court

considered R.C. 2929.13, and noted that it had discretion to impose a prison term

pursuant to R.C. 2929.13(B)(1)(b)(v) because these were sex offenses that were fifth

degree felony violations of R.C. Chapter 2907. In imposing its sentence, the trial court

commented that in his interview with the probation department, appellant denied

committing the crimes, blamed bad parenting by the father and mother, and called the

victim evil. Further, the court found that appellant’s statements at sentencing were

deplorable in that he took no responsibility, had no remorse, and blamed the victim and

her family. Thus, the trial court sentenced appellant to the maximum prison term of 12




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months on each count, and ordered the prison terms to be served consecutively. In

accordance with R.C. 2929.14(C)(4), the court found that consecutive prison terms were

necessary to protect the public from future crimes and to punish the offender, and that

they were not disproportionate to the seriousness of appellant’s conduct, and further that

the offenses were committed as part of one or more courses of conduct and the harm

caused by the offenses was so great or unusual that no single prison term would

adequately reflect the seriousness of appellant’s conduct.

                                 II. Assignment of Error

       {¶ 6} Appellant has timely appealed his judgment of conviction, and now asserts

one assignment of error for our review:

              1. The trial court abused its discretion in imposing a maximum

       twenty-four (24) month prison sentence upon defendant-appellant as it was

       against the manifest weight of the evidence.

                                       III. Analysis

       {¶ 7} We review felony sentences under the approach set forth in R.C.

2953.08(G)(2). State v. Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-Ohio-425, ¶

11. R.C. 2953.08(G)(2) provides that an appellate court may increase, reduce, or

otherwise modify a sentence, or may vacate the sentence and remand the matter to the

sentencing court for resentencing if it clearly and convincingly finds either of the

following:




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                (a) That the record does not support the sentencing court’s findings

       under * * * (C)(4) of section 2929.14 * * *;

                (b) That the sentence is otherwise contrary to law.”

       {¶ 8} In his brief, appellant argues generally that the trial court abused its

discretion, and that the 24-month prison sentence was against the manifest weight of the

evidence. In particular, appellant argues that maximum sentences should be reserved for

the most violent and repeat offenders, which appellant is not. Further, appellant cites his

minimal criminal history, his compliance with the bond conditions, his education and

employment, and his strong family support as factors that support a less than maximum

sentence. Finally, appellant references the trial court’s “terse” response to his statement

at sentencing, and concludes that the subsequent sentence was abrupt, arbitrary, and

unreasonable.

       {¶ 9} As to the trial court’s findings in imposing consecutive sentences under R.C.

2929.14(C)(4), we find that the record supports the conclusion that appellant engaged in a

pattern of conduct over the course of several years to spy on his minor step-daughter for

the purpose of sexually arousing or gratifying himself. The record further supports that

as a result of appellant’s actions the victim has been in counseling, and has struggled with

depression and a lack of sleep. Moreover, despite pleading guilty, appellant has taken no

responsibility and demonstrated no remorse for his conduct. Therefore, we cannot clearly

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

consecutive prison terms were necessary to protect the public from future crimes and to




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punish the offender, that consecutive sentences were not disproportionate to the

seriousness of appellant’s conduct, and that the offenses were committed as part of one or

more courses of conduct and the harm caused by the offenses was so great or unusual that

no single prison term would adequately reflect the seriousness of appellant’s conduct.

       {¶ 10} Turning to whether the sentence is otherwise contrary to law, in

Tammerine, we acknowledged that State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912,

896 N.E.2d 124, still can provide guidance for determining whether a sentence is clearly

and convincingly contrary to law. Tammerine at ¶ 15. The Ohio Supreme Court in

Kalish held that where the trial court considered the purposes and principles of R.C.

2929.11, as well as the factors listed in R.C. 2929.12, properly applied postrelease

control, and sentenced the defendant within the statutorily permissible range, the sentence

was not clearly and convincingly contrary to law. Kalish at ¶ 18.

       {¶ 11} Here, appellant argues that a maximum sentence is not supported by the

factors present in this case. However, “the individual decision maker has the discretion

to determine the weight to assign a particular statutory factor.” State v. Arnett, 88 Ohio

St.3d 208, 215, 724 N.E.2d 793 (2000). Moreover, “A trial court’s discretion to impose a

sentence within the statutory guidelines is very broad.” State v. Harmon, 6th Dist. Lucas

No. L-05-1078, 2006-Ohio-4642, ¶ 16. In reaching its conclusion that maximum prison

terms were warranted based upon appellant’s conduct of spying on his minor step-

daughter for purposes of sexual arousal or gratification, the trial court expressly

considered the principles and purposes of sentencing in R.C. 2929.11, and the seriousness




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and recidivism factors in R.C. 2929.12. Upon our review of the record, we cannot clearly

and convincingly find that appellant’s sentence is contrary to law.

       {¶ 12} Accordingly, appellant’s assignment of error is not well-taken.

                                     IV. Conclusion

       {¶ 13} For the foregoing reasons, we find that substantial justice has been done the

party complaining, and the judgment of the Ottawa County Court of Common Pleas is

affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.


                                                                      Judgment affirmed.


       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.



Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
Gene A. Zmuda, J.                                          JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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