State v. Lewis , 2021 Ohio 1692 ( 2021 )

[Cite as State v. Lewis, 2021-Ohio-1692.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 9-20-49
v.
JENSEN LEWIS, OPINION
DEFENDANT-APPELLANT.
Appeal from Marion County Common Pleas Court
Trial Court No. 20-CR-185
Judgment Affirmed
Date of Decision: May 17, 2021
APPEARANCES:
Todd A. Anderson for Appellant
Nathan R. Heiser for Appellee
Case No. 9-20-49
SHAW, J.
{¶1} Defendant-appellant, Jensen Lewis (“Lewis”), appeals the November 6,
2020 judgment of the Marion County Court of Common Pleas journalizing her
conviction after pleading guilty to one count of fifth-degree felony possession of
criminal tools and sentencing her to a twelve-month prison term. On appeal, Lewis
assigns error to the trial court’s decision to impose a prison term under R.C.
2929.13(B)(1)(b).
Relevant Facts and Procedural History
{¶2} On June 3, 2020, the Marion County Grand Jury returned a one-count
indictment against Lewis alleging that she committed the offense of Count One,
pandering sexually oriented matter involving a minor, a felony of the second degree,
in violation of R.C. 2907.322(A)(1). Lewis entered a plea of not guilty upon
arraignment.
{¶3} The charge arose from allegations that Lewis created and published a
video of herself and B.L., a 15-year-old female, engaging in sexual conduct on a
website application (“app”) called “Periscope.”1 Lewis was alleged to have known
that B.L. was a minor at the time she created and published the video. Investigation
by law enforcement revealed that Lewis, B.L., and other females, some of whom
were minors, had made acquaintances with a man called “Junior” who sent them
1
Periscope is an app that permits the user to share and broadcast live video streams direct from a smartphone
or tablet.
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money through the apps of “Venmo” and “Cashapp”2 in exchange for semi-nude,
nude, and sexually explicit photographs and videos.
{¶4} On October 29, 2020, the State filed a bill of information alleging that
Lewis committed the offense of Count Two, possession of criminal tools, a felony
of the fifth degree, in violation of R.C. 2923.24(A), by using a cell phone to record
and live stream the sex act with B.L.
{¶5} On November 6, 2020, Lewis appeared before the trial court, waived
prosecution by indictment, and consented to prosecution by bill of information. The
State moved to nolle prosequi Count One, second-degree felony pandering sexually
oriented material involving a minor. The trial court advised Lewis that the
maximum prison term for the offense was twelve months, and that it was not bound
by the parties’ joint sentencing recommendation of community control sanctions.
Lewis subsequently acknowledged her understanding of this on the record. Lewis
then entered her plea of guilty to Count Two, fifth-degree felony possession of
criminal tools. The trial court accepted Lewis’s guilty plea, set the matter for
sentencing, and ordered a presentence investigation and a community based
correctional facility referral.
{¶6} On November 30, 2020, Lewis appeared for sentencing. The trial court
found that Lewis had committed the offense “for hire or as part of an organized
2
These apps allow the user to send money to anyone with an account. The funds are usually drawn from
and/or deposited into a linked bank account.
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criminal activity.” (Nov. 30, 2020 Sent. Hrg. at 18). The trial court then imposed
the maximum sentence of a twelve-month prison term and a $2,500 fine upon Lewis.
Lewis’s sentence was journalized in the trial court’s November 30, 2020 Judgment
Entry of Sentencing.
{¶7} It is from this judgment that Lewis now appeals, asserting the following
assignments of error.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED AS A MATTER OF LAW IN
ORDERING DEFENDANT-APPELLANT TO SERVE
TWELVE (12) MONTHS IN PRISON.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ABUSED ITS DISCRETION IN
ORDERING DEFENDANT-APPELLANT TO SERVE
TWELVE (12) MONTHS IN PRISON.
First Assignment of Error
{¶8} In her first assignment of error, Lewis argues that the trial court was
required to impose community control sanctions for her fifth-degree felony
conviction under R.C. 2929.13(B)(1)(a). Specifically, Lewis maintains that the trial
court erred in finding that an exception to the community control presumption
applied to authorize the imposition of a prison term. Lewis contends the trial court’s
finding that she committed the offense for hire or as part of an organized criminal
activity under R.C. 2929.13(B)(1)(b)(viii) is not supported by the record.
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Standard of Review
{¶9} We 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, ¶ 22.
Specifically, R.C. 2953.08(G)(2) provides that an appellate court may increase,
reduce, modify, or vacate a sentence and remand for resentencing if it clearly and
convincingly finds 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(I),
or the sentence is otherwise contrary to law. See State v. Bonnell, 140 Ohio St.3d
209, 2014-Ohio-3177, ¶ 28.
{¶10} 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 (1954), paragraph three of the
syllabus. See also, In re Adoption of Holcomb, 18 Ohio St.3d 361 (1985). “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.” Cross, 161
Ohio St. at 477.
Legal Authority
{¶11} The trial court sentenced Lewis pursuant to R.C. 2929.13(B)(1)(b).
Revised Code section 2929.13 governs sentencing guidelines for various specific
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offenses and degrees of offenses. Of important note to the instant case, “[o]n
September 30, 2011, H.B. 86 went into effect and amended R.C. 2929.13(B)(1) to
prohibit prison sentences for certain fourth and fifth-degree felonies.” State v.
Grimmette, 4th Dist. Scioto No. 18CA3830, 2019-Ohio-3576, ¶ 10. Thus, R.C.
2929.13(B)(1)(a) sets forth a presumption that community sanctions are to be
imposed for certain fifth-degree felony offenses, if the offender meets the statutory
criteria.
{¶12} Specifically, R.C. 2929.13(B)(1)(a) reads as follows:
(B)(1)(a) Except as provided in division (B)(1)(b) of this section, if
an offender is convicted of or pleads guilty to a felony of the fourth
or fifth degree that is not an offense of violence or that is a
qualifying assault offense, the court shall sentence the offender to
a community control sanction or combination of community
control sanctions if all of the following apply:
(i) The offender previously has not been convicted of or
pleaded guilty to a felony offense.
(ii) The most serious charge against the offender at the time
of sentencing is a felony of the fourth or fifth degree.
(iii) The offender previously has not been convicted of or
pleaded guilty to a misdemeanor offense of violence that the
offender committed within two years prior to the offense for
which sentence is being imposed.
(Emphasis added).
{¶13} Even though R.C. 2929.13(B)(1)(a) includes a presumption for
community control if an offender is convicted of, or pleads guilty to, a felony of the
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fourth or fifth degree that is not an offense of violence (or a qualifying assault
offense), the presumption of a community control sanction is subject to the
exceptions listed in R.C. 2929.13(B)(1)(b). See State v. Bartholomew, 4th Dist.
Pickaway No. 19CA29, 2020-Ohio-4611, ¶ 25; State v. Napier, 12th Dist. Clermont
No. CA2016-04-022, ¶ 44; see also State v. Parker, 8th Dist. Cuyahoga No. 104610,
2017-Ohio-4294, ¶ 7 (“Application of R.C. 2929.13(B)(1)(a), however, is subject
to R.C. 2929.13(B)(1)(b).”); State v. Reed, 5th Dist. Richland No. 17CA20, 2017-
Ohio-8237, ¶ 9 (“R.C. 2929.13(B)(1)(b) sets forth exceptions to the requirement an
offender for a fifth degree felony, who meets the criteria set forth in subsection (a),
be sentenced to community control.”).
{¶14} Revised Code section 2929.13(B)(1)(b) provides as follows:
(b) The court has discretion to impose a prison term upon an
offender who is convicted of or pleads guilty to a felony of the
fourth or fifth degree that is not an offense of violence or that is
a qualifying assault offense if any of the following apply:
(i) The offender committed the offense while having a
firearm on or about the offender’s person or under the
offender’s control.
(ii) If the offense is a qualifying assault offense, the offender
caused serious physical harm to another person while
committing the offense, and, if the offense is not a qualifying
assault offense, the offender caused physical harm to another
person while committing the offense.
(iii) The offender violated a term of the conditions of bond
as set by the court.
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(iv) The offense is a sex offense that is a fourth or fifth
degree felony violation of any provision of Chapter 2907. of
the Revised Code.
(v) In committing the offense, the offender attempted to
cause or made an actual threat of physical harm to a person
with a deadly weapon.
(vi) In committing the offense, the offender attempted to
cause or made an actual threat of physical harm to a person,
and the offender previously was convicted of an offense that
caused physical harm to a person.
(vii) The offender held a public office or position of trust,
and the offense related to that office or position; the
offender’s position obliged the offender to prevent the
offense or to bring those committing it to justice; or the
offender’s professional reputation or position facilitated the
offense or was likely to influence the future conduct of
others.
(viii) The offender committed the offense for hire or as part of
an organized criminal activity.
(ix) The offender at the time of the offense was serving, or
the offender previously had served, a prison term.
(x) The offender committed the offense while under a
community control sanction, while on probation, or while
released from custody on a bond or personal recognizance.
(Emphasis added). Thus, R.C. 2929.13(B)(1)(b) permits a trial court to impose a
prison sentence for certain fifth-degree felony offenses if the trial court finds a
statutory exception applies. Here, the trial court found that it had the discretion to
impose a prison term because Lewis committed the offense for hire or as part of an
organized criminal activity under R.C. 2929.13(B)(1)(b)(viii).
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Trial Court’s Application of R.C. 2929.13(B)(1)(b)
{¶15} On appeal, Lewis maintains that the trial court was not authorized to
impose a prison term for her fifth-degree felony possession of criminal tools
conviction because she met the requirements of R.C. 2929.13(B)(1)(a). Therefore,
Lewis argues that she was entitled to be sentenced to community control sanctions.
Lewis further argues that the trial court’s sentence is contrary to law because the
trial court failed to make specific factual findings that an exception to the
community control presumption under R.C. 2929.13(B)(1)(b)(viii) applied.
{¶16} Contrary to Lewis’s contention on appeal, a trial court is not required
to make specific factual findings when imposing a prison sentence pursuant to R.C.
2929.13(B)(1)(b). See State v. Paxon, 11th Dist. Trumbull No. 2019-T-0011, 2019-
Ohio-3551, ¶ 18 (“the statute does not require a court to explicitly make a finding
before it has discretion to impose prison. Instead, a plain reading of the applicable
version of R.C. 2929.13(B)(1)(b) confirms that if any of the factors apply, the court
has discretion to impose a prison term. No explicit findings are required.”); State v.
Benson, 7th Dist. Mahoning No. 18 MA 0042, 2019-Ohio-4635, ¶ 13 (stating that
“a trial court is not required to make specific findings when imposing a prison
sentence pursuant to R.C. 2929.13(B)(1)(b)”). 3
3
In her reply brief Lewis also argues that the trial court was required to make its R.C. 2929.13(B)(1)(b)
finding in its judgment entry of sentencing. However, Lewis fails to cite any authority to support her
contention that this is a required part of the entry or that the lack of such a finding constitutes reversible error.
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{¶17} Nevertheless, in this case, the record establishes the trial court
specifically found that Lewis had committed the offense “for hire or as part of an
organized criminal activity.” See R.C. 2929.13(B)(1)(b)(viii). Specifically, the trial
court found at sentencing that:
This is the Defendant’s first felony conviction. However, amongst
the seriousness factors, the Court must find that the injury to the
victim was worsened by her age, the victim suffered serious
psychological harm as a result of the offense, the relationship with
the victim facilitated the offense, the offense was committed for
hire or as part of an organized criminal activity. And that’s what
this was. This was—this was done for profit. It was much in the
way drug dealers expand the number of people that they have
selling the drugs for them. They see the money, and they take
advantage of others to do that.
You know, as [Defense Counsel] points out, many of the images
on the phones here are not illegal. Miss Lewis was an adult. She
was free to take pictures of herself and sell them, and videos of
herself and sell them, including videos or live broadcasts of herself
and other adults. But she chose to involve a child under the age
of consent in our state in her videos, or in her live broadcasts. She
confesses to this. It’s on tape.
***
At any rate, she (Lewis) chose to involve a minor in her broadcast.
She chose to engage in sexual conduct—not once, by performing
sex on her—not twice, by having the child perform sex on her—
but at least three times by also engaging in what the PSI refers to
at the request of this Junior character who was uncharged in our
jurisdiction—what is described as a 69 position, a third act. All
of these acts are uncharged. But the Court can find that they—
the fact that this is what the criminal tool was used for here makes
it the worst form of the offense.
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It was done for profit. PSI reveals $4,200 to Miss Lewis for this.
And that’s an aggravating factor for this Court as well. This is an
F5. This Court is bound by TCAP. But this was also done as part
of a plea agreement.
In reviewing the plea form, the last line of the plea form reads that
in consideration of said pleas of guilty, the Court hereby enters a
nolle as to Count 1, the felony 2 in this case. As such, the Court is
guided by [State v. Lucius, 3d Dist. Logan No. 8-18-31, 2019-Ohio-
Ohio-741], in which my appellate Court finds that a sentencing
Court may consider charges that have been dismissed or reduced
pursuant to a plea agreement citing [State v. Parsons, 7th Dist.
Belmont No. 12 BE 11, 2013-Ohio-1281, ¶ 18, citing State v.
Starkey, 7th Dist. No. 06MA110, 2007-Ohio-6702, ¶ 2; State v.
Cooey, 46 Ohio St.3d 20, 35 (1989)].
In doing so, this Court does find that a period of incarceration is
appropriate in this case. And is going to impose a period of
incarceration. I don’t believe that this will silence child victims.
I believe it will send a message to adult females not to engage in
sexual conduct with children, and to use them for profit, and
broadcast those acts.
And therefore I am going to impose the maximum 12 month
sentence, as well as the maximum $2500 fine, because this was
done for profit.
(Nov. 30, 2020 Sent. Hrg. at 18-20) (emphasis added).
{¶18} As provided above, the record clearly demonstrates the trial court
specifically found that one of the statutory exceptions applied to this case, thereby
invoking its discretionary authority to impose a prison term under R.C.
2929.13(B)(1)(b). At issue here then is whether the record supports the trial court’s
determination that R.C. 2929.13(B)(1)(b)(viii) provided it with the discretion to
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impose a prison term, and whether the decision to impose a prison term was an abuse
of its discretion.
{¶19} In the instant case, with the case being resolved by guilty plea, the
presentence investigation report (“PSI”) provides the most detail in the record
regarding the nature and circumstances of Lewis’s possession of criminal tools
conviction. The PSI revealed that in the spring of 2019, local law enforcement was
contacted by the mother of the victim, who discovered that her 15-year-old
daughter, B.L., had made the acquaintance of an older adult male by the name of
Junior. Junior had solicited nude pictures and other inappropriate sexual content
from B.L. in exchange for money. B.L.’s mother became suspicious of nefarious
activity upon noticing her daughter spending large sums of money. She later learned
that B.L. had received payments from Junior totaling nearly $7,000. B.L.’s mother
contacted law enforcement when she learned that Junior wanted to meet B.L. in
person.
{¶20} Further investigation by law enforcement revealed that Lewis was also
involved with Junior. B.L. disclosed to law enforcement that she created “sex
shows” for Junior in exchange for payment with two other women, both of whom
were over the age of 18. One of these women was her cousin and the other was
Lewis, a friend of B.L.’s cousin. These videos were live streamed on both B.L.’s
and Lewis’s Periscope accounts.
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{¶21} Detective Jagger with the Marion Police Department subsequently
interviewed Lewis at the police station. Lewis recalled that B.L. was the first to be
involved with Junior. Lewis became interested in making contact with Junior once
she learned of the large amounts of money he had paid B.L. and B.L.’s cousin.
Lewis told Detective Jagger that she was aware that B.L. was only 15 years old.
Nevertheless, she admitted to broadcasting herself and B.L. engaging in sexual
conduct over Periscope in exchange for receiving money from Junior via Cashapp.
Specifically, Lewis admitted to live streaming one video, at Junior’s request, during
which she performed oral sex on B.L. and then B.L. performed oral sex on her. B.L.
and Lewis live streamed a second video, again at Junior’s request, with the two
engaging in oral sex simultaneously in the “69” position. Lewis told Detective
Jagger that she recalled being paid $1,500 from Junior for the month of November
2018. Lewis then showed Detective Jagger her account transactions which
indicated that she received payments totaling $1,700 from February 20 to April 1,
2019, and $1,000 from April 12, 2019 to May 12, 2019. It was later determined that
these videos were published on a pornography website.
{¶22} In addition to the narrative of Detective Jagger, the PSI also included
a narrative of the PSI writer’s interview with Lewis. In this interview, Lewis stated
that she had met B.L. through B.L.’s cousin, with whom Lewis was “best friends.”
Lewis admitted to making videos and selling nude photos to Junior for money. She
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also admitted to performing sexual acts with B.L. in a video, using her own
Periscope account or B.L.’s account, that was eventually published on a
pornography website. Lewis stated that she sold photos and videos to Junior from
October 2018 to March or April 2019. She explained that she did so because she
was unemployed and needed the money. At the time of sentencing Lewis was 22
years old.
{¶23} Lewis was initially charged with pandering sexually oriented matter
involving a minor, a felony of the second degree. However, she later pled guilty to
possessing criminal tools, in violation of R.C. 2923.24, a felony of the fifth degree.
Revised Code section 2923.24 states:
(A) No person shall possess or have under the person’s control
any substance, device, instrument, or article, with purpose to use
it criminally.
(B) Each of the following constitutes prima-facie evidence of
criminal purpose:
(1) Possession or control of any dangerous ordnance, or the
materials or parts for making dangerous ordnance, in the
absence of circumstances indicating the dangerous
ordnance, materials, or parts are intended for legitimate use;
(2) Possession or control of any substance, device,
instrument, or article designed or specially adapted for
criminal use;
(3) Possession or control of any substance, device,
instrument, or article commonly used for criminal purposes,
under circumstances indicating the item is intended for
criminal use.
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(C) Whoever violates this section is guilty of possessing criminal
tools. Except as otherwise provided in this division, possessing
criminal tools is a misdemeanor of the first degree. If the
circumstances indicate that the substance, device, instrument, or
article involved in the offense was intended for use in the
commission of a felony, possessing criminal tools is a felony of the
fifth degree.
(Emphasis added).
{¶24} At the plea hearing, the prosecutor recited the following statement of
facts supporting Lewis’s guilty plea:
[The] State would show that on or about November 1st of 2018,
through April 30th of 2019, that Jensen Lewis, at [address] in
Marion County, Ohio, did purposely possess a phone device
which was used for the purpose to use it criminally. It was used
in recording a sexual act with a minor.
(Nov. 6, 2020 Hrg at 22).
R.C. 2929.13(B)(1)(b)(viii): An Offense For Hire
or as Part of an Organized Criminal Activity
{¶25} At issue on appeal is whether the record supports the trial court’s
determination that Lewis committed the possession of criminal tools offense “for
hire or as part of an organized criminal activity” under R.C. 2929.13(B)(1)(b)(viii),
in order to invoke the trial court’s discretionary authority to impose a prison term in
this case. Notably, neither the term “for hire” nor the term “organized criminal
activity” is defined in R.C. Chapter 2929, and trial courts must determine on a case-
by-case basis if an offense is “for hire” or “as a part of an organized criminal
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activity.” State v. Thompson, 3d Dist. Allen No. 1-19-30, 2020-Ohio-723, ¶ 10.
Therefore, courts have turned to other resources to find guidance in applying these
terms.
{¶26} For instance, “ ‘[F]or hire’ is defined by the Ohio Jury Instructions as
‘for pay or compensation.’ ” State v. Son, 11th Dist. Trumbull No. 98-T-0019, at *2
(Ohio Ct. App. Dec. 11, 1998), citing 4 OHIO JURY INSTRUCTIONS (1997), Section
507.24, at 200. “ ‘For hire’ is defined in Webster’s Third New International
Dictionary, Unabridged, at 1072, as follows: ‘available for use or service in return
for payment.’ ‘Payment’ is defined as: ‘1: the act of paying or giving
compensation.... 2: something that is paid: something given to discharge a debt or
obligation or to fulfill a promise...’.” State v. Henderson, 2d Dist. Montgomery No.
21745, 2007-Ohio-5367, ¶¶ 29-31, citing WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY, UNABRIDGED, at 1659 (construing the term “for hire” as stated in R.C.
2907.24(A), which sets forth the offense of solicitation, stating that “[n]o person
shall knowingly solicit another to engage in sexual activity for hire in exchange for
the person receiving anything of value from the other person,” and concluding that
“the trial court could reasonably find that Henderson made a serious, if unusual,
offer to Briggs to engage in sex with him in exchange for some bubble gum”).
{¶27} In determining whether there was “an organized criminal activity,”
courts have generally considered the scope and length of the criminal activity,
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whether the offense was committed spontaneously/impulsively or with extensive
planning, the number of people involved, and the nature of the charges. See, e.g.,
State v. Orms, 10th Dist. Franklin No. 14-AP-750, 2015-Ohio-2870; State v. Coran,
2d Dist. Clark No. 2003-CA-80, 2004-Ohio-6874; State v. Miller, 4th Dist.
Washington No. 07CA1, 2008-Ohio-1059; State v. Radcliff, 10th Dist. Franklin
Nos. 97APA08-1054 and 97APA08-1056 (Mar. 17, 1998). See also, State v.
Washington, 4th Gallia No. 17CA8, 2018-Ohio-3545, ¶ 14, citing Griffin and Katz,
OHIO FELONY SENTENCING LAW (1999), 368-369, Section T. 4.14.3
(“Commentators have defined an ‘organized criminal activity’ as ‘criminal activity
which because of the number of participants and planned utilization of those
participants poses more of a risk to the public order than an activity carried out by
a single individual acting in isolation from other offenders or than multiple
individuals acting together spontaneously or impulsively.”); State v. Morgan, 10th
Dist. Franklin No. 13-AP-620, 2014-Ohio-5661, ¶ 38, (stating that “[a] defendant’s
participation in an aggravated robbery along with one or more co-defendants is
sufficient to find the incident occurred as part of organized criminal activity”).
Discussion
{¶28} In support of her contention on appeal that she did not commit the
possession of criminal tools offense as part of an organized criminal activity, Lewis
maintains that there is no evidence in the record to show that she had knowledge of
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the extent of the individuals involved in the criminal enterprise other than “Junior,”
B.L. and B.L.’s cousin. Lewis also argues that she did not “recruit” B.L., but learned
about Junior and his cash payments for nude and sexually explicit content from B.L.
Lewis further contends the trial court’s observation that her conduct of using a cell
phone to create and broadcast live sex acts with B.L. was done “for profit” is
insufficient to constitute a finding that the offense was “for hire” within in the
meaning of R.C. 2929.13(B)(1)(b). However, Lewis fails to cite any instructive
authority construing the term “for hire” as used in R.C. 2929.13.4
{¶29} We acknowledge that “there is not a bright line test for determining
what is an “organized criminal activity,” nor does it have a singular application.
State v. Orms, 10th Dist. Franklin No. 14AP-750, 2015-Ohio-2870, ¶ 24. Notably,
the same can be said about what constitutes an offense “for hire” under R.C.
2929.13(B)(1)(b). However, consistent with our role as an appellate court rather
than as a sentencing court, we shall not reverse a trial court’s decision to apply or
not apply the term to an act or series of acts unless the record does not support the
trial court’s findings.
4
For instance, Lewis cites R.C. 2929.04(A), the statute setting forth the criteria for a court to impose death
or imprisonment for a capital offense, to suggest that “for hire” under R.C. 2929.13(B)(1)(b) must be
construed to mean that the offender was solicited to commit the offense, not merely that the offense was
committed “for profit.” However, other statutory offenses, such as solicitation, also employ the term “for
hire,” which courts have construed to simply mean “monetary payment was expected (for hire),”and thereby
have determined “for hire” to be an independent element from the act of specifically offering to engage the
offense. State v. Short, 2d Dist. Montgomery No. 27192, 2017-Ohio-7200, at ¶ 36. Nevertheless, we decline
to accept Lewis’s position in this regard absent any indication from the legislature that it intended the term
“for hire” as used in under R.C. 2929.13 to be applied in this limited manner.
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{¶30} Here, the record demonstrates that Lewis purposefully used a cell
phone to live stream and broadcast the act of her engaging in sexual conduct with a
minor. The record establishes that Lewis committed this offense in exchange for
money. The record further indicates that Lewis knew B.L. was 15-years-old at the
time she committed the offense. Moreover, the record suggests that this was not an
isolated incident, but that Lewis used a phone to live stream and send content
involving her engaging in nudity and sexually explicit acts over a period of months,
and that Lewis willingly did so in exchange for payment that amounted to several
thousand dollars over time. Lewis was also aware that Junior had been paying a
minor to engage in similar conduct prior to becoming involved with him.
{¶31} We recognize that the majority of the facts in the record are derived
from the PSI and Lewis appears to take issue on appeal with the trial court’s reliance
on the narratives in the PSI in fashioning its sentence. It is well established that the
rules of evidence do not apply to sentencing hearings. See State v. Cook, 83 Ohio
St.3d 404, 425 (1998) (superseded by statute on other grounds). “Courts have
historically been permitted to consider hearsay evidence, evidence of an offender’s
criminal history, the facts concerning charges dismissed, and even offenses for
which charges were not filed, but were addressed in the presentence investigation.”
State v. Ropp, 3d Dist. Union No. 14-13-21, 2014-Ohio-2462, ¶ 4, citing State v.
Bowsher, 186 Ohio App.3d 162, 2010-Ohio-951 (2d Dist.); see, also, Evid.R.
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101(c)(3). Moreover, R.C. 2929.19(B)(1) permits the trial court to rely upon the
contents of the PSI for purposes of sentencing. See State v. Siefker, 3d Dist. Putman
No. 12-10-14, 2011-Ohio-1867, ¶ 20. Notably, Lewis did not object to or dispute
the accuracy of the statements contained in the PSI. See R.C. 2951.03 (according
several rights to a defendant and counsel relating to a PSI). Based on the foregoing,
we conclude that the trial court did not err in relying upon this information for
purposes of determining the appropriate sentence in this case.5
{¶32} In sum, although Lewis asserts that the record does not support the
trial court’s findings, the PSI reveals that Lewis directly admitted to two different
people that she willingly and voluntarily involved herself with an individual who
criminally solicited and distributed nude and sexually explicit materials involving
minors and that Lewis purposefully used a cell phone to participate in this criminal
activity for money while being fully aware of B.L.’s age. In this instance, and for
the purposes of R.C. 2929.13(B)(1)(b)(viii), we believe it is inconsequential that
Lewis claims that she was ignorant of the extent of Junior’s involvement in a larger
criminal enterprise. Accordingly, we cannot conclude that the trial court
5
We note that the case cited by Lewis to assert the trial court erred in relying upon the statements in the PSI
is distinguishable from this case. See State v. Gaspareno, 3d Dist. Marion No. 9-15-15, 2019-Ohio-990.
Specifically, in State v. Gaspareno, we sustained the appellant’s assignment of error asserting that the trial
court erroneously relied upon hearsay statements contained in his co-defendants’ PSIs to find that Gaspareno
committed the underlying offense for hire or as a part of an organized criminal activity under R.C.
2929.13(B)(1)(b). We concluded that Gaspareno was not accorded the same notice and opportunity to
prepare a defense to any factual inaccuracies in those PSIs as he was with the one filed in his own case under
R.C. 2951.03. Accordingly, we do not find our analysis in Gaspareno germane to the instant case.
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inappropriately applied the sentencing guidelines in R.C. 2929.13(B)(1)(b).
Therefore, we do not find that Lewis’s sentence in contrary to law. Nor on this basis
can we clearly and convincingly find that the record does not support the trial court’s
findings under R.C. 2929.13(B).
{¶33} The first assignment of error is therefore overruled.
Second Assignment of Error
{¶34} In her second assignment of error, Lewis contends that the trial court
abused its discretion in imposing a prison term under R.C. 2929.13(B)(1)(b).
Specifically, Lewis maintains that her sentence is disproportionate to the community
control sanctions imposed upon B.L.’s cousin in a separate criminal matter. Lewis
asserts that the facts in that case are identical to hers. Specifically, Lewis claims
that B.L.’s cousin engaged in the same conduct and pled guilty to a similar offense.
Lewis argues that the only difference between the cases is that B.L.’s cousin’s case
was heard by a different judge who imposed a more lenient sentence. However,
there is nothing properly admitted in the record of the case before us that would
allow this Court to consider the particulars of B.L.’s cousin’s case.
{¶35} Moreover, we have already determined in our resolution of the first
assignment of error that Lewis has failed to demonstrate that the trial court’s
sentence is contrary to law and/or that its findings under R.C. 2929.13(B) are not
supported by the record. Therefore, to the extent that Lewis is attempting to
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Case No. 9-20-49
challenge the trial court’s consideration of the felony sentencing factors under R.C.
2929.11 and R.C. 2929.12, we note that the Supreme Court of Ohio has recently
clarified that an appellate court shall no longer analyze whether a sentence is
unsupported by the record under R.C. 2929.11 and 2929.12. See, State v. Jones, --
- Ohio St.3d ---, 2020-Ohio-6729, ¶ 42 (concluding that an appellate court may not
modify or vacate a felony sentence based upon a finding by clear and convincing
evidence that the record does not support the trial court’s findings under R.C.
2929.11 and R.C. 2929.12). Accordingly, we conclude that the trial court did not
abuse its discretion in imposing a prison term upon Lewis.
{¶36} The second assignment of error is therefore overruled.
{¶37} For all these reasons, the first and second assignments of error are
overruled and the judgment of the Marion County Court of Common Pleas is
affirmed.
Judgment Affirmed
WILLAMOWSKI, P.J. and MILLER, J., concur.
/jlr
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