[Cite as State v. Thoma, 2018-Ohio-4720.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                            WARREN COUNTY




 STATE OF OHIO,                                   :     CASE NO. CA2018-01-010

           Plaintiff-Appellee,                    :           OPINION
                                                              11/26/2018
                                                  :
   - vs -
                                                  :

 B.J.T.,                                          :

           Defendant-Appellant.                   :



      CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                           Case No. 16CR31930



David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, 520 Justice
Drive, Lebanon, OH 45036, for plaintiff-appellee

The Helbling Law Firm, LLC, John J. Helbling, 6539 Harrison Avenue, Box 124, Cincinnati,
OH 45247, for defendant-appellant



        M. POWELL, J.

        {¶ 1} Defendant-appellant, B.J.T., appeals his 28-year prison sentence in the

Warren County Court of Common Pleas for sexually abusing his teenage daughter.

        {¶ 2} Appellant was indicted in 2016 on eight counts of sexual battery and seven

counts of gross sexual imposition. The state alleged that over the course of eight months,

from September 2015 to April 2016, appellant sexually abused the victim by touching her
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chest and buttocks and by digitally penetrating her vagina. At the time of the offenses, the

victim was 15 years old. Appellant waived his right to a jury trial and the matter proceeded

to a bench trial in October 2017.

       {¶ 3} At trial, the victim testified that appellant first sexually abused her in

September 2015 as she was lying on the floor of their living room. Appellant touched her

buttocks and digitally penetrated her vagina. After she moved to a chair, appellant faced

her by putting his hands on the arms of the chair, told her he was sorry and that "it wouldn't

happen again," and told her she "better not tell anyone what happened." Appellant, who is

6' 2'' tall and weighs 325 pounds, was holding a pocket knife. The victim testified she was

scared.

       {¶ 4} A second incident occurred a few nights later, when appellant came into the

victim's bedroom in the middle of the night. The victim awoke to find appellant's hand

between her legs with his fingers inside her vagina. Appellant was kneeling by her bed,

dressed only in his underwear, and was holding a flashlight. The victim testified that

appellant digitally penetrated her vagina in that manner "a couple of times a week" until she

reported the sexual abuse on April 21, 2016, after yet another incident. On all of those

occasions, appellant would also touch the victim's buttocks and chest. The abuse always

occurred in her bedroom during the early morning hours. Appellant would either have a

flashlight or use his cellphone as a light. Except on one occasion, appellant always came

with his pocket knife which he either placed on the victim's dresser or on her bed near her.

       {¶ 5} On April 21, 2016, following appellant's latest sexual abuse, the victim texted

appellant on her way to school and told him that it was not okay for him to do those things

to her, that it was not the first time he had done it, and that she was going to disclose the

abuse to her mother. In a series of texts, appellant apologized for his actions, promised not

to do it again, admitted that what he did was wrong, and begged the victim not to tell anyone.

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Once at school, the victim disclosed the abuse to a friend, a teacher, and the principal.

       {¶ 6} While being interviewed by the police, appellant denied penetrating the

victim's vagina but admitted he touched her "in places she shouldn't be touched." He further

admitted he touched her breasts and her vaginal area "skin to skin" with his hands.

Appellant stated he had touched the victim "maybe once a week for the last couple months,"

with the most recent time being the night before. He told the detectives that the incidents

occurred in the victim's bedroom in the middle of the night and that he used the light on his

cellphone to see.

       {¶ 7} At trial, appellant denied digitally penetrating the victim's vagina but admitted

he touched her inappropriately on April 21, 2016, when he pulled her underwear to the side

and put his fingers behind the underwear and "there was contact." He further admitted

touching the victim on two other occasions, once by sticking his hand between her legs and

once by "pull[ing] her bra back over and pull[ing] her shirt back over." Appellant claimed

the touching was accidental on both occasions. The recordings of his phone calls to family

members while he was in jail were admitted into evidence. During these phone calls,

appellant admitted he "did something really bad" and that he "touched [the victim]

inappropriately."

       {¶ 8} After hearing the foregoing testimony, the trial judge found appellant guilty as

charged. The trial judge ordered that a presentence investigation report ("PSI") be prepared

and set the matter for sentencing. However, due in part to conflicts in the trial judge's

schedule, appellant could not be sentenced by the trial judge prior to the expiration of his

judicial term.   Therefore, in December 2016, appellant was sentenced by a different

common pleas court judge (the "sentencing judge").

       {¶ 9} At the sentencing hearing, the sentencing judge indicated that he had

reviewed the PSI, the exhibits introduced at trial, and the trial judge's personal trial notes.

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The sentencing judge heard a prepared statement from the victim and heard from the

victim's mother and the state. The state stipulated that the gross sexual imposition and

sexual battery convictions were allied offenses of similar import and elected to proceed on

the sexual battery offenses. The state recommended consecutive 36-month prison terms

on each of the sexual battery convictions, for a total prison term of 24 years. After hearing

the foregoing, the sentencing judge classified appellant as a Tier III sex offender and

sentenced him to 42 months in prison on each of the sexual battery counts. He then ordered

that the prison terms run consecutively for a total prison term of 28 years.

         {¶ 10} Appellant appealed his conviction and sentence. On December 4, 2017, we

upheld appellant's conviction but reversed his sentence and remanded the matter for

resentencing. State v. B.J.T., 12th Dist. Warren No. CA2016-12-106, 2017-Ohio-8797. We

held that the sentencing judge erred in relying on the trial judge's personal notes in

attempting to familiarize himself with the case, rather than reviewing the trial transcript, and

that the error was prejudicial to appellant's substantial rights relative to sentencing. Id. at ¶

44-45.

         {¶ 11} On December 22, 2017, the trial court held a resentencing hearing. The trial

court indicated it had read the trial transcript and reviewed the PSI, appellant's statements

to the police, appellant's recorded phone calls to his family while he was in jail, the

statements from the victim and her mother, and defense counsel's sentencing

memorandum. The PSI indicated that appellant had no prior criminal history and that he

presented a moderate risk of recidivism.

         {¶ 12} In support of a five-year prison sentence based upon concurrent prison terms,

defense counsel argued that appellant had no criminal record, was previously found by the

sentencing judge to present no risk of recidivism, was not a monster, and had simply lost

his way. Defense counsel further presented an analysis of 263 reported cases involving

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offenders sentenced for at least one sexual battery conviction. Defense counsel argued

that a 28-year prison sentence was "far harsher than necessary to accomplish the goals of

felony sentencing" and inconsistent with sentences for sexual battery convictions in other

similar cases. Appellant then addressed the trial court, acknowledged he had "made a huge

mistake," and apologized to his family and the victim.

       {¶ 13} Upon considering the purposes and principles of sentencing in R.C. 2929.11

and the seriousness and recidivism factors in R.C. 2929.12, and reviewing the PSI, the trial

court sentenced appellant to 42 months in prison on each of the eight counts of sexual

battery, and ordered that the prison terms run consecutively for a total prison term of 28

years. Regarding recidivism, the trial court found that it was unlikely that appellant would

reoffend and that "from that aspect, I find your chance of recidivism moving forward is * * *

almost zero." However, the trial court also found that had the victim not disclosed the sexual

abuse, appellant's behavior would likely have continued. Regarding the seriousness of the

offense, the trial court found it significant that the victim was 15 years old, that a pocket

knife was present during all but one incident, and that the abuse occurred multiple times

over eight months in the victim's bedroom and bed. The court further found the parental

relationship between appellant and the victim to be a significant seriousness factor.1

       {¶ 14} Appellant now appeals, raising one assignment of error:

       {¶ 15} THE TRIAL COURT'S SENTENCING DEFENDANT-APPELLANT TO 28

YEARS IS NOT SUPPORTED BY THE RECORD AND IS CONTRARY TO LAW.

       {¶ 16} Appellant challenges his 28-year prison sentence, arguing that the imposition

of consecutive prison terms is contrary to law and/or not supported by the record, and is

inconsistent with sentences imposed for sexual battery convictions in numerous other



1. The record indicates that appellant adopted the victim when she was five years old. At the time of the
incidents, appellant, the victim, her mother, and a sibling all lived in the same house.
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similar cases. Appellant further challenges his Tier III sex offender classification.

       {¶ 17} We review the imposed sentence under the standard of review set forth in

R.C. 2953.08(G)(2), which governs all felony sentences. State v. Marcum, 146 Ohio St.3d

516, 2016-Ohio-1002, ¶ 1. Pursuant to that statute, an appellate court does not review the

sentencing court's decision for an abuse of discretion.         Id. at ¶ 10.     Rather, R.C.

2953.08(G)(2) compels an appellate court to modify or vacate a sentence only if the

appellate court finds by clear and convincing evidence that "the record does not support the

trial court's findings under relevant statutes or that the sentence is otherwise contrary to

law." Id. at ¶ 1. A sentence is not clearly and convincingly contrary to law where the trial

court "considers the principles and purposes of R.C. 2929.11, as well as the factors listed

in R.C. 2929.12, properly imposes postrelease control, and sentences the defendant within

the permissible statutory range." State v. Aburas, 12th Dist. Clermont No. CA2017-10-054,

2018-Ohio-1984, ¶ 9.

       {¶ 18} Pursuant to R.C. 2929.14(C)(4), a trial court must engage in a three-step

analysis and make certain findings before imposing consecutive sentences. State v. Smith,

12th Dist. Clermont No. CA2014-07-054, 2015-Ohio-1093, ¶ 7. Specifically, the trial court

must find that (1) the consecutive sentence is necessary to protect the public from future

crime or to punish the offender, (2) consecutive sentences are not disproportionate to the

seriousness of the offender's conduct and to the danger the offender poses to the public,

and (3) 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 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

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              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.

       {¶ 19} "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." State v. Bonnell, 140 Ohio St. 3d 209,

2014-Ohio-3177, ¶ 37. While the trial court is not required to give reasons explaining these

findings, it must be clear from the record that the court engaged in the required sentencing

analysis and made the requisite findings. Smith at ¶ 8. A consecutive sentence is contrary

to law where the trial court fails to make the consecutive sentencing findings as required by

R.C. 2929.14(C)(4). State v. Marshall, 12th Dist. Warren No. CA2013-05-042, 2013-Ohio-

5092, ¶ 8.

       {¶ 20} Appellant was convicted of sexual battery, in violation of R.C. 2907.03(A)(5),

a felony of the third degree. The prison term for a third-degree felony that is a violation of

R.C. 2907.03 ranges from 12 to 60 months, in six-month increments.                       R.C.

2929.14(A)(3)(a). Thus, appellant's 42-month prison term for each of his sexual battery

convictions was in the middle of the sentencing range for a third-degree felony.

       {¶ 21} The record reflects that the trial court made the requisite R.C. 2929.14(C)(4)

findings during the sentencing hearing and in its sentencing entry when it imposed

consecutive sentences for an aggregate 28-year prison sentence. Specifically, the trial

court found that the consecutive sentences were necessary to protect the public and punish

appellant; the sentences were not disproportionate to the seriousness of appellant's

conduct or the danger posed by appellant; and the offenses were committed as part of a

course of conduct and the harm caused by the offenses was so great that no single prison

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term adequately reflected the seriousness of appellant's conduct. Appellant's consecutive

sentences are therefore not contrary to law. Marshall, 2013-Ohio-5092 at ¶ 8.

       {¶ 22} We note that in challenging his sentence, appellant alleges that "the trial court

went out of its way to mention the 'additional layer of shall we say victimization' caused

because witnesses had to testify." However, the trial court never uttered that statement at

the resentencing hearing.     Rather, the trial court made the statement at the original

sentencing hearing. Furthermore, in resentencing appellant, the trial court specifically

stated it was not punishing him for exercising his right to a trial. We now turn to appellant's

specific arguments.

       {¶ 23} Appellant challenges his 28-year prison sentence, arguing that the imposition

of consecutive sentences is not supported by the record. Specifically, appellant asserts

that the trial court (1) "offered no rationale for its consecutive sentences," (2) improperly

considered appellant's relationship with the victim, and (3) improperly assumed that

appellant's behavior would have continued had the victim not reported it. Appellant further

asserts that the record does not support the trial court's findings that the harm caused was

so unusual or that consecutive sentences were necessary to protect the public.

       {¶ 24} As stated above, 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 "has no obligation to state reasons to support its findings." Bonnell, 2014-Ohio-

3177 at ¶ 37.     The trial court was therefore not required to offer a "rationale for its

consecutive sentences." Appellant cites a decision of the Eighth Appellate District for the

proposition that a trial court must state its reasons supporting the R.C. 2929.14(C)(4)

findings. See State v. Phillips, 8th Dist. Cuyahoga No. 82750, 2003-Ohio-5659. However,

Phillips was decided at a time when R.C. 2929.19(B)(2)(c) required sentencing courts to

give their reasons for imposing consecutive sentences.         The statute has since been

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amended to delete that requirement. Phillips is therefore inapplicable.

      {¶ 25} Appellant next asserts that the trial court improperly considered his parental

relationship with the victim because such relationship is an element of the sexual battery

offense under R.C. 2907.03(A)(5). Appellant is correct that the state had to prove that he

was the victim's "natural or adoptive parent, or a stepparent, or guardian, custodian, or

person in loco parentis of the other person." However, as the Fourth Appellate District held,

             [R.C. 2907.03] no longer designates certain forms of the offense
             as more serious than others. Rather, each form of the offense
             is treated equally with regards to its level of seriousness. Given
             this equal statutory treatment, we do not think it is improper for
             trial courts to conclude that some forms of sexual battery are
             more serious than others.

             Additionally, R.C. 2907.03(A)(5), the subsection under which
             [appellant] was charged, covers a variety of different
             relationships. It applies when the offender is the victim's
             biological parent, adoptive parent, stepparent, guardian,
             custodian, or person in loco parentis. R.C. 2907.03(A)(5).
             Thus, the exact nature of the relationship between the offender
             and the victim may be relevant to whether the offender
             committed the worst form of the offense.

State v. Jewell, 4th Dist. Washington No. 03CA27, 2004-Ohio-1294, ¶ 16-17.

      {¶ 26} As the victim's adoptive parent, appellant had greater access to the victim and

opportunity to abuse her, thereby facilitating the sexual abuse and its frequency over the

course of several months. His relationship with the victim further facilitated his efforts to

avoid detection by keeping her quiet about the abuse. As the victim's adoptive parent,

appellant was responsible for her health, welfare, and safety. Instead, he sexually abused

her, betrayed her trust, and played on her guilt. The trial court, therefore, did not err in

considering appellant's relationship with the victim in imposing consecutive sentences.

      {¶ 27} Appellant next asserts that the trial court improperly assumed that appellant's

behavior would have continued had the victim not reported it. We find no error. The record

indicates that the victim had complained to appellant about what he was doing and that he
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promised to stop, yet continued to sexually abuse her. Likewise, on the day the victim

informed appellant she was going to disclose the abuse, he repeatedly promised to stop his

behavior, texting her, "never again," "please trust me when I tell you that this will never

happen again," and "give me one last opportunity." This evidence supports the trial court's

finding that the abuse would have continued had the victim not reported it.

       {¶ 28} Appellant next asserts that the record does not support the trial court's

findings that the harm caused was so unusual or that consecutive sentences were

necessary to protect the public.

       {¶ 29} We first note that the trial court did not find that the harm caused was unusual;

rather, the trial court found that the harm caused was "so great that no single prison term

adequately reflects the seriousness of this case." Given the fact that appellant repeatedly

sexually abused the victim, a child he had adopted when she was five years old, over

several months, in her bedroom and bed, and with his pocket knife nearby, the evidence

supports the trial court's finding that the harm caused was great. Nevertheless, appellant

takes issue with the trial court's failure to "cite to any sources as to the impact on the victim

regarding psychological harm." However, the trial court indicated at resentencing that it

had reviewed the statements from the victim and her mother.

       {¶ 30} Appellant further asserts that the record does not support the trial court's

finding that consecutive sentences were necessary to protect the public because the trial

court also found that appellant was unlikely to commit future crimes and that his risk of

recidivism was almost zero.

       {¶ 31} While appellant has no prior criminal history and the trial court made the

foregoing findings, the PSI indicates that appellant did not show remorse for his actions, did

not believe he should be involved in any type of treatment services, and tried to make

insinuations about the victim and her mother, stating that "there was more to the story than

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everyone knew." The PSI further indicates that appellant rationalized and minimized his

behavior as being a "mistake" spurred by his curiosity after he heard that the victim "had a

piercing down where she shouldn't." Appellant further blamed his behavior on the victim for

"walking around the house in her underwear and hanging out in the living room without

clothes on." The foregoing plainly indicates that appellant failed to accept responsibility for

and recognize the wrongfulness of his conduct. The trial court, therefore, did not err in

finding that consecutive sentences were necessary to protect the public from such an

offender.

       {¶ 32} In light of the foregoing, we find that the record supports the trial court's

determination that imposing consecutive sentences is commensurate with the seriousness

of appellant's conduct, necessary to punish appellant, and necessary to protect the public.

       {¶ 33} Appellant further challenges his 28-year prison sentence, arguing that his

sentence is grossly disproportionate to both his convictions and to sentences imposed for

similar or worse offenses in numerous other cases. Specifically, appellant asserts that a

review of more than 250 Ohio cases involving defendants who were sentenced for at least

one R.C. 2907.03(A)(5) sexual battery conviction reveals that courts typically impose

sentences of 11 years or less.

       {¶ 34} "Consistency * * * relates to the sentences in the context of sentences given

to other offenders; whereas proportionality relates solely to the punishment in the context

of the offender's conduct, i.e., does the punishment fit the crime." State v. Blevins, 8th Dist.

Cuyahoga No. 106115, 2018-Ohio-3583, ¶ 38. Based upon our analysis above, we find

that appellant's 28-year prison sentence is not disproportionate to his convictions.

       {¶ 35} Pursuant to R.C. 2929.11(B), felony sentences shall be "consistent with

sentences imposed for similar crimes committed by similar offenders."                However,

consistency in sentencing does not mean uniformity. State v. Graham, 12th Dist. Warren

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No. CA2013-07-066, 2014-Ohio-1891, ¶ 14. "A consistent sentence is not derived from a

case-by-case comparison, but from the trial court's proper application of the statutory

sentencing guidelines." State v. Micomonaco, 12th Dist. Butler No. CA2011-07-139, 2012-

Ohio-5239, ¶ 49. "Consistency accepts divergence within a range of sentences and takes

into consideration the trial court's discretion to weigh statutory factors." State v. Hyland,

12th Dist. Butler No. CA2005-05-103, 2006-Ohio-339, ¶ 29. Therefore, in order for an

offender to successfully claim inconsistent sentencing, the offender "must demonstrate that

the trial court failed to properly consider the statutory sentencing factors and guidelines

found in R.C. 2929.11 and 2929.12." State v. Geldrich, 12th Dist. Warren No. CA2015-11-

103, 2016-Ohio-3400, ¶ 16.

         {¶ 36} In support of his argument, appellant cites several cases where defendants

convicted of sexual battery received shorter sentences than appellant.          However, a

defendant cannot simply present other cases in which an individual convicted of the same

offense received a lesser sentence to demonstrate that his sentence is inconsistent. State

v. Silknitter, 3d Dist. Union No. 14-16-07, 2017-Ohio-327, ¶ 19. See also State v. Saur,

10th Dist. Franklin No. 10AP-1195, 2011-Ohio-6662; State v. Lane, 2d Dist. Montgomery

No. 27347, 2018-Ohio-1320; and State v. Quine, 9th Dist. Summit No. 20968, 2002-Ohio-

6987. Rather, the defendant must show that the trial court failed to properly consider the

statutory sentencing factors and guidelines in R.C. 2929.11 and 2929.12. Geldrich at ¶ 16.

The record reflects that the trial court properly considered all relevant sentencing factors

under R.C. 2929.12 as well as the purposes and principles of R.C. 2929.11, weighed them,

and applied them accordingly.      Accordingly, appellant has failed to establish that his

sentence is inconsistent with sentences imposed for sexual battery convictions in other

cases.

         {¶ 37} Finally, appellant challenges his sex offender classification, arguing that

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because there is little likelihood he will reoffend, "the public is not in danger and there is no

need for him to register as a sex offender."

       {¶ 38} Appellant was convicted of sexual battery in violation of R.C. 2907.03(A)(5).

R.C. 2950.01(G)(1)(a) requires a trial court to designate an offender convicted of a sexually

oriented offense in violation of R.C. 2907.03 a Tier III sex offender, by operation of law. The

sex offender classification is based solely upon the offense for which appellant was

convicted, and the trial court did not have discretion in imposing the classification on

appellant. State v. White, 5th Dist. Stark No. 2016CA00107, 2017-Ohio-1243, ¶ 20.

       {¶ 39} Appellant's assignment of error is overruled.

       {¶ 40} Judgment affirmed.


       S. POWELL, P.J., and PIPER, J., concur.




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