State v. Amero , 2023 Ohio 345 ( 2023 )

[Cite as State v. Amero, 2023-Ohio-345.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY
STATE OF OHIO, CASE NO. 2020-P-0029
Plaintiff-Appellee,
Criminal Appeal from the
-v- Court of Common Pleas
LAURA E. AMERO,
Trial Court No. 2019 CR 00366
Defendant-Appellant.
OPINION
Decided: February 6, 2023
Judgment: Affirmed in part and reversed and modified in part
Victor V. Vigluicci, Portage County Prosecutor, and Theresa M. Scahill, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
J. Gerald Ingram and Frank Louis Cassese, Ingram, Cassese & Grimm, LLP, 7330
Market Street, Boardman, OH 44512 (For Defendant-Appellant).
MATT LYNCH, J.
{¶1} Defendant-appellant, Laura Amero, appeals her sentence for Sexual Battery
and Sexual Imposition in the Portage County Court of Common Pleas. For the following
reasons, we affirm the individual prison terms ordered by the trial court but reverse the
consecutive nature of the sentences and modify her total term of imprisonment to an
aggregate term of five years.
{¶2} On April 19, 2019, Amero was indicted by the Portage County Grand Jury
for two counts of Sexual Battery, felonies of the third degree, in violation of R.C.
2907.03(A)(7) and (B) (“[n]o person shall engage in sexual conduct with another * * * when
* * * [t]he offender is a[n] * * * administrator * * * or other person in authority employed by
or serving in a school * * * [and] the other person is enrolled in or attends that school”);
two counts of Attempted Sexual Battery, felonies of the fourth degree, in violation of R.C.
2923.02(A) and R.C. 2907.03(A)(7) and (B); and two counts of Intimidation of a Victim or
Witness in a Criminal Case, misdemeanors of the first degree, in violation of R.C.
2921.04(A), (D), and (E).
{¶3} A plea hearing was held on November 4, 2019, at which Amero entered a
plea of guilty to two counts of Sexual Battery as stated in the indictment and an amended
count of Sexual Imposition, a misdemeanor of the first degree, in violation of R.C. 2907.06.
The convictions related to sexual acts involving two 16-year-old students while Amero was
principal at Windham High School. A Written Plea of Guilty and Judgment Entry finding
Amero guilty were filed on November 4, 2019. The remaining counts of the indictment
were dismissed.
{¶4} Amero filed a Sentencing Memorandum on February 7, 2020. Attached
were letters in support from family members and friends as well as two letters written by
a psychologist from whom Amero had sought treatment during the investigation of this
matter, Dr. Michael Smith. He stated that Amero had attended 23 treatment sessions as
of January 28, 2020, and he considered her to pose “low to minimal risk to the safety and
welfare of the general public.” According to Smith, Amero responded well to therapeutic
guidance and her risk of reoffending “has been substantially reduced.”
{¶5} A sentencing hearing was held on February 10, 2020. The defense argued
that Amero had family support, confessed when confronted by police, had taken
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responsibility and resigned her position as superintendent shortly after being accused of
the crimes, had engaged in counseling following the crimes, and had mental health issues
including depression, anxiety, and eating disorders. Defense counsel emphasized
Amero’s lack of a criminal history and what she had done for the community and students
when she worked for Windham. Amero apologized, highlighted the loss of her career and
stated her responsibility for that loss. Defense counsel requested community control. The
State noted that the victims were present in the courtroom and stated “they’ve asked the
Court to consider their statements that they’ve made.”1 It requested she be ordered to
serve a prison term.
{¶6} The court stated that it did not believe Amero committed the crimes due to
mental illness and stated that it “can’t understand how this keeps happening with teachers,
superintendents, principals…”. The court found consecutive sentences were “necessary
to protect the public from future crimes and to punish the Defendant fairly,” were “not
disproportionate to the seriousness of the Defendant’s conduct, and to the danger the
Defendant poses to the public,” two or more of the offenses were part of a course of
conduct, and the harm was so great that no single prison term adequately reflected the
seriousness of the conduct, emphasizing that Amero “destroyed” the community. The
court imposed consecutive terms of five years in prison for each count of Sexual Battery
and a concurrent term of 180 days for Sexual Imposition for a total term of 10 years in
prison. The sentence was memorialized in a February 12, 2020 Order and Journal Entry.
1. No written or other victim impact statements are present in the record and, apart from the State’s
reference to statements made and the court’s presumably boilerplate notation in its Judgment Entry that it
reviewed “any victim impact statements,” we do not find the record demonstrates they were filed or made
part of the record. The State, which was given access to view the Presentence Investigation Report and
sealed documents relating to sentencing through an August 27, 2020 Judgment Entry of this court, notes in
its brief that the statements were not in the record. Amero also sets forth in her brief that any such statements
and their content were not disclosed or provided to defense counsel.
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In the entry, the court stated that it considered the evidence presented by counsel, oral
statements, “any victim impact statements” and the defendant’s statement, as well as the
PSI, and the purposes of sentencing, and the need for deterrence, incapacitation,
rehabilitation, and restitution. Amero was classified as a Tier III sex offender.
{¶7} Amero appealed from the foregoing sentence. Following briefing by the
parties, the Ohio Supreme Court issued its opinion in State v. Jones, 163 Ohio St.3d 242,
2020-Ohio-6729, 169 N.E.3d 649, which addressed the proper appellate review of a trial
court’s application of the sentencing factors in R.C. 2929.11 and 2929.12. As it is pertinent
to the present matter, a continuance was granted and the parties were permitted to submit
supplemental briefs on the applicability of Jones.
{¶8} On appeal, Amero raises the following assignments of error:
{¶9} “[1.] The record clearly and convincingly establishes that the sentencing
court misapplied and failed to properly consider the sentencing criteria contained in R.C
2929.11 and 2929.12 when it imposed maximum individual sentences of five (5) years on
each count of sexual battery, in violation of R.C. 2907.03.
{¶10} “[2.] The trial court erred by imposing maximum consecutive sentences
pursuant to R.C. 2929.14(C)(4) where the record clearly and convincingly does not
support such a finding.”
{¶11} In the first assignment of error, Amero argues that “the record did not support
the individual maximum sentences in the case at bar” because the trial court did not
properly apply the sentencing principles and factors in R.C. 2929.11 and .12, contending
that the record did not demonstrate she posed a risk to the public or caused significant
harm to the victims. In support, she cites to a factually similar case from this court, State
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v. Polizzi, 11th Dist. Lake Nos. 2018-L-063 and 064, 2019-Ohio-2505, arguing that “the
record in the instant case is even more devoid of justifications for maximum individual
sentences than the record in Polizzi,” where the appellant’s sentence was reversed. In
her supplemental brief, Amero emphasizes that she takes issue with the trial court
improperly considering the R.C. 2929.12(B) “more serious factor” of the school
official/student relationship.
{¶12} “The court hearing an appeal [of a felony sentence] shall review the record,
including the findings underlying the sentence or modification given by the sentencing
court.” R.C. 2953.08(G)(2). “The appellate court may increase, reduce, or otherwise
modify a sentence that is appealed under this section or may vacate the sentence and
remand the matter to the sentencing court for resentencing * * * if it clearly and
convincingly finds * * * [t]hat the record does not support the sentencing court’s findings
under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14,
or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant; [or] *
* * [t]hat the sentence is otherwise contrary to law.” R.C. 2953.08(G)(2).
{¶13} “A court that sentences an offender for a felony shall be guided by the
overriding purposes of felony sentencing” which are “to protect the public from future crime
by the offender and others, to punish the offender, and to promote the effective
rehabilitation of the offender using the minimum sanctions that the court determines
accomplish those purposes without imposing an unnecessary burden on state or local
government resources.” R.C. 2929.11(A). When imposing a felony sentence, the trial
court “has discretion to determine the most effective way to comply with the purposes and
principles of sentencing” and “shall consider the factors * * * relating to the seriousness of
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the conduct” and “to the likelihood of the offender’s recidivism.” R.C. 2929.12(A).
{¶14} “Trial courts have full discretion to impose a prison sentence within the
statutory range and are no longer required to make findings or give their reasons for
imposing maximum, consecutive, or more than the minimum sentences.” State v. Foster,
109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, paragraph seven of the syllabus. The
Ohio Supreme Court has described R.C. 2929.12 as “a general judicial guide for every
sentencing.” Id. at ¶ 36. “[T]here is no mandate for judicial fact-finding in the general
guidance statutes. The court is merely to ‘consider’ the statutory factors.” Id. at ¶ 42;
State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 31 (R.C.
2929.11 and 2929.12 do not require a trial court to make specific factual findings).
{¶15} The Ohio Supreme Court has recently clarified the application of R.C.
2953.08(G)(2) in relation to R.C. 2929.11 and .12. Jones, 163 Ohio St.3d 242, 2020-Ohio-
6729, 169 N.E.3d 649. The Court held that R.C. 2953.08(G)(2)(a) does not allow an
appellate court to vacate a sentence based on “lack of support in the record for a trial
court’s findings under R.C. 2929.11 and 2929.12.” Id. at ¶ 29. It concluded that “an
appellate court’s determination that the record does not support a sentence does not
equate to a determination that the sentence is ‘otherwise contrary to law’” as set forth in
R.C. 2953.08(G)(2)(b). Id. at ¶ 32. Thus, “[n]othing in R.C. 2953.08(G)(2) permits an
appellate court to independently weigh the evidence in the record and substitute its
judgment for that of the trial court concerning the sentence that best reflects compliance
with R.C. 2929.11 and 2929.12.” Id. at ¶ 42.
{¶16} In her supplemental brief, Amero contends that Jones is “inapplicable to the
instant appeal” because “the allegations of sentencing error here are specific and assert
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that, as a matter of law, the sentencing court improperly considered the seriousness
factors under R.C. 2929.12(B) and the recidivism less likely factors under R.C.
2929.12(E).” She argues that this appeal is premised on the fact that the trial court
“violated the clear command of R.C. 2929.12 by considering the school official/student
relationship as a more serious factor under R.C. 2929.12(B)” and contends that “whether
the sentencing court erred as a matter of law in considering prohibited factors is
cognizable on appeal.”
{¶17} While Amero emphasizes that she only questions whether the trial court
applied the correct factors and not the weight assigned to each factor, throughout her
original brief she provides analysis as to whether the factors supported the court’s
sentence and emphasizes how, like in Polizzi, when considering all of the factors, the
sentence was not supported by the evidence. To the extent that addressing these specific
issues would involve weighing the R.C. 2929.11 and .12 factors to determine whether the
court’s sentence was appropriate, consistent with Jones, we will not conduct such a
weighing of the evidence or substitute this court’s judgment for that of the trial court.
{¶18} We will, however, address Amero’s contention that the lower court was not
permitted to consider the school official/student relationship as a factor making the crime
more serious under R.C. 2929.12(B) as it goes to a legal issue independent of weighing
the evidence. See State v. Chase, 11th Dist. Lake Nos. 2020-L-070 and 2020-L-071,
2021-Ohio-1006, ¶ 10 (“[w]e will address [appellant’s] argument to the limited extent that
[he] claims * * * the trial court explicitly relied on facts that it was precluded from
considering by law”).
{¶19} Amero argues that the lower court was not permitted to consider that the
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crime of Sexual Battery occurred against students while she was in the position of a school
principal as a factor making the crime more serious pursuant to R.C. 2929.19(B), since
this status is also an element of the offense. In support of this argument, she relies on
Polizzi, 2019-Ohio-2505, wherein this court reversed a sentence under similar
circumstances involving a teacher committing Sexual Battery against students. In Polizzi,
this court found that a sentencing court may not elevate the seriousness of an offense by
pointing to an element of the offense itself, and noted that the student/teacher relationship
is “accounted for by the legislature” in setting the level of the offense. Id. at ¶ 28.
{¶20} Polizzi jointly addressed alleged sentencing errors in relation to the
application of consecutive sentences pursuant to R.C. 2929.14(C)(4), and R.C. 2929.11
and .12, which set forth factors the sentencing court must consider regarding the purposes
and principles of sentencing, the seriousness of the crime, and the risk of recidivism.
However, its analysis primarily related to the consecutive sentencing findings, ultimately
concluding that, “[u]pon review of the record, there is no support under R.C.
2929.14(C)(4) for some of the findings the trial court made to justify imposition of
consecutive sentences for each of the individual offenses for which a plea was entered.”
Id. at ¶ 47. This court has clarified the application of Polizzi, confirmed that “[t]he holding
in Polizzi was that the trial court’s consecutive sentence findings under R.C. 2929.14(C)(4)
were clearly and convincingly not supported by the record,” and rejected the argument
that elements of the offense cannot be considered when weighing the seriousness factors
under R.C. 2929.12. (Emphasis added.) State v. Banas, 11th Dist. Lake No. 2019-L-049,
2019-Ohio-5053, ¶ 25; State v. Brown, 11th Dist. Lake No. 2020-L-052, 2020-Ohio-4642,
¶ 15 (declining to apply Polizzi and rejecting appellant’s argument that a court may not
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consider an element of the offense to elevate the seriousness of the conduct under R.C.
2929.12(B)); State v. Russell, 11th Dist. Lake No. 2019-L-138, 2020-Ohio-3243, ¶ 75. In
other words, this court has held that elements of the offense can be considered in the
sentencing court’s weighing of factors making the crime more serious under R.C. 2929.12.
{¶21} As this court more fully explained in Russell, “[t]he statutory text of R.C.
2929.12(B) does not support a conclusion that a trial court may not recognize an element
of an offense in its consideration of the seriousness of an offender’s conduct” and
“contains no exception for factors that may overlap with the elements of an offense.” Id.
at ¶ 81-82. It further noted that the factor at issue will apply uniformly for all instances of
the same offense and, thus, would lead to fair application since R.C. 2929.12(B) requires
the court to consider factors “as indicating that the offender’s conduct is more serious than
conduct normally constituting the offense.” (Emphasis omitted.) Id. at ¶ 83-84. Pursuant
to the foregoing precedent, the trial court was permitted to consider that the crime of
Sexual Battery occurred against students while Amero was a school principal as a factor
making the crime more serious pursuant to R.C. 2929.19(B). We cannot second-guess
how much weight it gave this factor in comparison to others under Jones.
{¶22} Finally, to the extent Amero argues that the lower court failed to consider
factors making the crime less serious, we emphasize that there is a presumption that a
court considered R.C. 2929.12, even where the trial court is silent regarding these factors,
unless the defendant affirmatively shows to the contrary. State v. Claar, 11th Dist. Portage
No. 2020-P-0058, 2021-Ohio-2180, ¶ 11; State v. Foster, 11th Dist. Portage No. 2011-P-
0087, 2012-Ohio-3744, ¶ 9. We do not find Amero has demonstrated that the trial court
failed in its duty to consider all of the required factors under R.C. 2929.11 and .12.
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{¶23} The first assignment of error is without merit.
{¶24} In her second assignment of error, Amero argues that the record contains
no evidence to support the trial court’s consecutive sentence findings, emphasizing that
the seriousness of the offense should not have been elevated by her role as a principal
since this was an element of the offense and the lack of evidence of harm and
seriousness, and citing Polizzi in support of her argument.
{¶25} Pursuant to R.C. 2929.14(C)(4), separate prison terms for multiple offenses
may be ordered to be served consecutively if the court finds it 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 the
offender poses to the public,” and finds any of the R.C. 2929.14(C)(4)(a)-(c) factors are
present. The only applicable factor here is R.C. 2929.14(C)(4)(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.”
{¶26} “‘[T]he clear and convincing standard used by R.C. 2953.08(G)(2) is written
in the negative. It does not say that the trial judge must have clear and convincing
evidence to support its findings. Instead, it is the court of appeals that must clearly and
convincingly find that the record does not support the court’s findings.’” (Citation
omitted.) State v. Guth, 11th Dist. Portage No. 2015-P-0083, 2016-Ohio-8221, ¶ 23,
quoting State v. Rodeffer, 2d Dist. Montgomery Nos. 25574, et al., 2013-Ohio-5759, ¶ 31;
State v. Forsell, 11th Dist. Portage Nos. 2019-P-0116, et al., 2020-Ohio-5381, ¶ 15. This
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standard has been characterized as “extremely deferential.” Id. There must be an
“evidentiary basis” that is “adequate to fully support the trial court’s consecutive-sentence
findings.” State v. Gwynne, __ Ohio St.3d __, 2022-Ohio-4607, ___ N.E.3d __, ¶ 29.
“This requires the appellate court to focus on both the quantity and quality of the evidence
in the record that either supports or contradicts the consecutive-sentence findings. An
appellate court may not, for example, presume that because the record contains some
evidence relevant to and not inconsistent with the consecutive-sentence findings, that this
evidence is enough to fully support the findings.” Id. In evaluating consecutive sentences,
the appellate court is “authorized to substitute its judgment for the trial court’s judgment if
[it] has a firm conviction or belief, after reviewing the entire record, that the evidence does
not support the specific findings made by the trial court to impose consecutive sentences.”
Id.{¶27} The lower court made the findings required to impose a consecutive
sentence: that such sentence is necessary to protect the public from future crime or to
punish the defendant; that the sentence is not disproportionate to the seriousness of the
defendant’s conduct and the danger she poses to the public; and the two offenses were
committed as part of a course of conduct and the harm caused by the offenses was so
great or unusual that no single prison term adequately reflects the seriousness of the
defendant’s conduct. However, we clearly and convincingly find that the record lacks an
evidentiary basis to fully support the trial court’s findings.
{¶28} As to the finding that the harm caused by the offenses was so great or
unusual that more than a single term is warranted, the record is devoid of evidence to
support such a conclusion. There is nothing in the record to demonstrate the extent of the
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harm suffered by the victims. The State did not specify what harm was caused to the
victims, other than a general statement that sexual abuse causes harm. The PSI includes
the facts of the offenses but does not include any statements by the victims of what
specific harm they suffered. At the sentencing hearing, the State noted that the victims
were present in the courtroom and, rather than speaking, asked that the Court “consider
their statements that they’ve made.” To clarify the record, following oral argument, this
court remanded to the trial court with instructions to issue an entry stating “whether any
victim impact statements exist as part of the trial court record” and to supplement the
record on appeal if warranted. The record was not supplemented with any additional
material. Thus, there is nothing present in the record allowing this court to discern a
justification for this finding. While we recognize that sexual assault and sexual battery are
significant offenses, it is necessary that the trial court make a finding, supported by the
record, that the harm caused by Amero’s actions 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” her conduct. (Emphasis added.) R.C.
2929.14(C)(4)(b). Without evidence in the record to demonstrate a basis for this
conclusion, such a finding is clearly and convincingly contrary to the record.
{¶29} The lower court did state, when making its consecutive sentencing findings,
that “you had the entire community in your hands and you destroyed it,” noting that Amero
was a superintendent. The State emphasizes that the impact on the community is properly
considered to support a finding of harm. See State v. Martinez, 6th Dist. Wood No. WD-
01-027, 2002 WL 255499, *7 (Feb. 22, 2002) (“[w]e cannot say that the court erred in
considering the long term effect of appellant’s actions on the community as support for its
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finding that the harm caused by appellant’s offenses was so great or unusual that a single
prison term would not adequately reflect the seriousness of appellant’s conduct”).
However, again, this finding is not supported by the record. The basis for this finding is
unclear, since nothing was presented to demonstrate the particular harm caused to the
community, and the observation that Amero was superintendent is of limited value given
that she was principal rather than superintendent at the time of the offenses. The only
tangible evidence regarding the Windham community was a letter from a teacher who
worked with Amero at Windham indicating Amero had benefited the community through
her work in the Windham schools.
{¶30} The trial court’s emphasis on the harm caused focuses primarily on the
element of the crime that made Amero’s actions criminal: her position as a principal. R.C.
2907.03(A)(7) (“[n]o person shall engage in sexual conduct with another, not the spouse
of the offender, when * * * [t]he offender is a teacher, administrator, coach, or other person
in authority employed by or serving in a school * * *”). In Polizzi, 2019-Ohio-2505, this
court, noting case law holding “[a] trial court may not elevate the seriousness of an offense
by pointing to a fact that is also an element of the offense itself,” held that the court’s
finding that appellant was a predator was based on his relationship to the victims as their
teacher, an element of the sexual battery offenses under R.C. 2907.03(A)(7) and could
not be considered to elevate his sentence. (Citation omitted.) Id. at ¶ 28, 35, and 47. A
similar concern arises here; in the court’s brief comments when ordering consecutive
sentences, it emphasized Amero’s position of authority within the schools and how her
conduct in that role caused harm. This role is precisely why she was charged with a crime.
If this alone is viewed as grounds to order consecutive sentences, such sentences would
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be justified in all offenses charged under R.C. 2907.03(A)(7), rather than in those where
the harm was “great or unusual.”
{¶31} The State argues that Polizzi and, in particular, its foregoing holding, is
inapplicable for several reasons. First, it argues that this court reached a contrary holding
in State v. Spellman, 160 Ohio App.3d 718, 2005-Ohio-2065, 828 N.E.2d 695 (11th Dist.):
that the element of being an elected official could be considered when ordering
consecutive sentences for theft in office and tampering with records. Id. at ¶ 30. Given
that this case was decided prior to Polizzi, we decline to apply its holding here, especially
given that Polizzi involved the same offense as in the present matter, Sexual Battery
committed by the conduct of a school employee in a role of authority. As outlined in the
first assignment of error, Polizzi does not bar the trial court from considering factors
making an offense more serious that involve an element of the offense when determining
the length of the sentence for a particular offense. However, Polizzi does mandate that a
consecutive sentence cannot be based upon a fact that is also an element of the offense.
The State also argues that Polizzi should not be considered by this court in its analysis
here because it applied R.C. 2929.12(D) factors in determining whether the consecutive
sentencing factor of risk to the public was present, which is contrary to the Ohio Supreme
Court’s holding that an appellate court errs by “reviewing [a defendant’s] consecutive
sentences under R.C. 2929.11 and 2929.12.” State v. Gwynne, 158 Ohio St.3d 279,
2019-Ohio-4761, 141 N.E.3d 169, ¶ 18. However, even presuming the misapplication of
certain factors in Polizzi’s analysis on one issue, this does not invalidate other conclusions
reached that were unrelated to the weighing of those factors, such as the determination
on the applicability of elements of the crime to order consecutive sentences.
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{¶32} The determination that the court’s findings were not supported by the record
is also buttressed by the fact that Amero presented specific and detailed evidence that
she poses a low risk to the public. Her psychiatrist indicated that she had responded well
to treatment, that “a number of the factors that contributed to her offending have been
reduced or ameliorated,” her risk to reoffend was substantially reduced, and she
presented a “low to minimal risk to the safety and welfare of the general public.” The
record does not refute this. There is no other assessment showing a risk of repeated
similar conduct in the future.
{¶33} The dissenting judge cites several examples in support of the argument that
evidence of harm was present in the record, such as potential damage to the students’
reputation and that there was more than one victim. However, harm can be inferred in
any case where there was a crime but more is required to justify a consecutive
sentence. For example, harm to reputation can be inferred in any sexual assault or battery
case where the victim’s identity becomes known. The harm required to support a
consecutive sentencing finding is “great or unusual harm” which is not present in the
record in this case. The citation to State v. Russell, 11th Dist. Lake No. 2019-L-138, 2020-
Ohio-3243, is unavailing. Russell is factually distinct and involves examples of great or
unusual harm that are not present here, including that the defendant, who was an “uncle
figure,” sexually abused an underage victim who was 12 to 14 years old over the course
of two and a half years. Id. at ¶ 2. In addition, the dissent argues that victim statements
were not necessary as one will not be given in every case, such as with a toddler victim.
We recognize that certain circumstances may allow for the inference of great or unusual
harm, as with the abuse of a very young child, and that harm can be established in a
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variety of ways such as through the testimony of a psychologist. Those circumstances
are inapplicable here.
{¶34} Since the lower court made consecutive sentencing findings that were
unsupported by the record, particularly in relation to the harm caused by Amero’s
commission of the offenses, that portion of the sentence ordering Amero’s five-year terms
for Sexual Battery be served consecutively is reversed. As the record, which was not
supplemented by the trial court with any victim statements or additional evidence, does
not support consecutive sentencing findings, we modify Amero’s sentence to two
concurrent terms of five years in prison for Sexual Battery, served with the concurrent term
imposed for Sexual Imposition, for an aggregate five-year prison sentence. See State v.
Hawley, 2020-Ohio-1270, 153 N.E.3d 714, ¶ 25 (8th Dist.) (modifying the defendant’s
sentences to concurrent terms where the record did not support the findings required for
imposition of consecutive sentences).
{¶35} The second assignment of error is with merit.
{¶36} For the foregoing reasons, Amero’s individual sentences are affirmed, the
determination that the sentences for Sexual Battery be served consecutively is reversed,
and Amero’s sentence is modified as stated herein. Costs to be taxed against the parties
equally.
THOMAS R. WRIGHT, J., concurs with a Concurring Opinion,
MARY JANE TRAPP, J., concurs in part and dissents in part with a Concurring/ Dissenting
Opinion.
______________________________________
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THOMAS R. WRIGHT, J., concurs with a Concurring Opinion.
{¶37} I concur with the lead opinion but write separately to further address issues
raised by the dissent. Certainly, when a school principal commits two counts of sexual
battery and one count of sexual imposition against students, the offenses could cause
harm, and I do not minimize the severity of the offenses. However, as noted by the lead
opinion, no written or other victim impact statements were made a part of the record.
There is simply no evidence in the record to support the conclusion that any arguable
harm caused was so great or unusual that no single prison term adequately reflects the
seriousness of Amero’s conduct. See R.C. 2929.14(C)(4)(b).
{¶38} The dissent maintains that we have failed to acknowledge evidence in the
record supporting the finding of great or unusual harm. The dissent first relies on the PSI
report which states that: one victim reported to police that Amero engaged in fellatio twice
with him; the second victim reported that Amero grabbed his penis and tried to kiss and
touch him on “no more than twenty occasions”; and Amero confessed to these acts. The
dissent cites State v. Russell, 11th Dist. Lake No. 2019-L-138, 2020-Ohio-3243, ¶ 137 for
the proposition that a prolonged sexual relationship supports a finding of great or unusual
harm. However, in Russell at ¶ 136, “[t]he trial court found that the victim suffered serious
psychological harm based on a letter from her psychiatrist setting forth current diagnoses
related to a history of sexual trauma.” There was therefore some evidence in that record
permitting the finding of “great or unusual harm.” No such evidence exists in this record.2
2. The dissent erroneously suggests that we have created a new rule that only “written or other victim impact
statements” may support a finding of great or unusual harm. Au contraire. Even a cursory reading of
Russell, cited by the dissent, demonstrates that this court has and will consider any evidence (in that case,
the psychologist’s letter), as establishing great or unusual harm. The primary disagreement between the
majority and the dissent is not one of law. It is one of reasonable versus unreasonable inferences.
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{¶39} Moreover, the fact that one victim in this matter reported to police the details
of the crime does nothing to establish great or unusual harm. Without some basis that
would allow for the inference that harm of great or unusual character occurred, the report
was merely part of the investigatory process.
{¶40} Further, the victim in Russell may have had a prolonged sexual relationship
with the defendant, just as the victims in this matter had a similar prolonged relationship.
This similarity, however, has nothing to do with a finding of great or unusual harm. In fact,
the duration of the relationship is coincidental without some affirmative evidence of some
“great or unusual harm.” As a court, we must be sensitive and sensible regarding our
evaluation of evidential sufficiency. There is no simple gauge to establish the standard
that would apply in every case. What one can unequivocally say, however, is that no
evidence is clearly insufficient evidence. Such is the case in the instant matter.
{¶41} The dissent also focuses on Amero’s statements that she damaged the trust
the victims have with an adult to be their role model and principal and that she is “sure”
the victims are embarrassed and uncomfortable due to the resulting damage to their
reputations. However, the PSI report indicates that Amero responded in this fashion to a
portion of the pre-probation questionnaire asking, “how do you think the victims feel about
what happened[?].” (Emphasis added.) There is nothing in the record that supports that
Amero’s statements were based on anything more than conjecture. Amero’s statements
merely reflect her speculation regarding the impact of her actions on the victims, not any
factual insight into how the victims themselves actually processed the events. That Amero
is “sure” that her actions, as an adult in a position of authority, caused the victims’
embarrassment, etc., is an unfalsifiable presupposition because it is a claim that, given
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this record, is impossible to establish. To wit, the victims did not concede great or unusual
harm or embarrassment and thus Amero’s purported certainty regarding these
experiences is pure speculation.
{¶42} Further, the dissent relies on the sentencing memorandum, wherein the
defense acknowledged that this case came to law enforcement’s attention due to rumors.
Based upon this, the dissent states, “so of course there is additional reputation damage
that necessarily comes with fellow students and the community learning about these
sexual encounters and the victims’ identities.” However, again, no record evidence exists
to support that any such harm was great or unusual.
{¶43} The existence of rumors or innuendo does not establish any great or unusual
harm, let alone the apparent “self-evident” truth that a student’s reputation would
necessarily be damaged. Some people may very well be embarrassed and greatly or
unusually harmed by rumors of sexual encounters that occurred with a school
administrator; others might experience no effect whatsoever. In essence, it is impossible,
without direct evidence that the victims in this matter were actually greatly or unusually
harmed by the so-called rumors, to use the alleged rumors to manufacture support for the
statutory finding that the harm in this case was so great or unusual that no single prison
term would reflect the seriousness of appellant’s conduct.
{¶44} The dissent next points to the fact that Amero was charged with intimidation
of a crime victim or witness, which was dismissed as part of her plea agreement. From
this, the dissent assumes the truth of the charges, and maintains that threats designed to
silence the victims “necessarily results in great harm or injury.” However, this court has
noted, “it would certainly be improper for the trial court to elevate [the accused]’s pending
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felony charge to the status of a conviction for sentencing purposes when [the accused]
had not actually been convicted of the pending charge.” State v. Hoolihan, 11th Dist.
Trumbull No. 2012-T-0023, 2012-Ohio-5837, ¶ 17. No evidence of threats, much less
great or unusual harm resulting from threats, appears in the record.
{¶45} Moreover, the dissent fails to acknowledge that any given witness might use
a defendant’s attempt to intimidate as a stronger basis for testifying. Intimidation of a
witness or the attempt to do so is practically meaningless unless the witness is
“intimidatable” – there is no such evidence to support this conclusion. Thus, the dissent’s
additional “self-evident” truth (namely, that an attempt to silence the victims “necessarily”
results in great harm or injury) completely lacks substantiation and is based upon
unfounded presupposition.
{¶46} Some people, in their day-to-day routine, have a built-in tendency to jump to
conclusions on the basis of limited or no evidence. Sometimes they will get a notion,
premised upon a few scant tidbits of evidence and settle immediately into a position. They
then promote “intuitions” or “half-truths” to the status of full and incontrovertible facts
without bothering to consider the foundation for the beliefs. Or, alternatively, they might
reason from their own personal experiences (i.e., from anecdotal evidence) to draw
conclusions that run far in advance of or far afield from the actual evidence. We, as a
court, must evaluate an actual record and, in doing so, must resist the temptation to treat
that which might be consistent with our own notions as part of that record when no such
evidence exists.
{¶47} The Second Appellate District has underscored this point in discussing the
consecutive sentencing statutory scheme:
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Whenever a trial court is required to make a finding, there
obviously must be a factual basis in the record for the finding;
otherwise the requirement would meaninglessly exalt form
over substance. The making of a finding adverse to the
defendant when there is nothing to support that finding is
analogous to a jury’s returning a guilty verdict when there is no
evidence in the record to support an essential element of the
offense. In either case, the error is plain – in the sense that
the result would clearly have been otherwise had the error not
occurred.
State v. Carter, 2d Dist. Champaign No. 2005-CA-24, 2006-Ohio-984, ¶ 25.
{¶48} The dissent has relied on pure speculation to support the trial court’s finding
of great harm. As no evidence of great harm appears in the record, I agree with the lead
opinion that the record clearly and convincingly fails to support this finding. In other words,
the lack of any such evidence is sufficient to create a “firm belief” that the trial court’s
determination is unsupported by the record. This is, put simply, our standard of review for
consecutive sentences on appeal. Further, as the error occurred at the point of the trial
court imposing consecutive sentences, I agree that it is appropriate to modify Amero’s
sentence by reversing the imposition of consecutive sentences.
______________________________________
MARY JANE TRAPP, J., concurs in part and dissents in part with a Concurring/ Dissenting
Opinion.
{¶49} While I concur with the majority’s disposition of Ms. Amero’s first assignment
of error, I must respectfully dissent from its finding that there is clear and convincing
evidence that the record does not support the trial court’s consecutive sentence findings.
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{¶50} I agree that the only applicable R.C. 2929.14(C)(4) factor for our
consideration in this case is (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.” The majority correctly recites the clear and
convincing standard to be applied to the review of a R.C. 2929.14(C)(4)(b) determination,
noting it is written in the negative (which has proven to be problematic for more than one
court), but then fails to acknowledge the evidence in this record that supports the trial
court’s finding.
{¶51} A review of the relevant case law is helpful to better articulate the standard
of review and its application. The Supreme Court of Ohio has held that “[i]n 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.”
State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus. Under
R.C. 2953.08(G)(2)(a), upon de novo review, a court of appeals may increase, reduce, or
otherwise modify a sentence if it clearly and convincingly finds “[t]hat the record does not
support the sentencing court’s findings under * * * (C)(4) of section 2929.14 * * *.” See
State v. Gwynne, 158 Ohio St.3d 279, 2019-Ohio-4761, 141 N.E.3d 169, ¶ 16, and State
v. Gwynne, Slip Opinion No. 2022-Ohio-4607, ¶ 12 (“Gwynne II”).
{¶52} “‘Clear and convincing evidence is that measure or degree of proof which is
more than a mere “preponderance of the evidence,” but not to the extent of such certainty
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as is required “beyond a reasonable doubt” in criminal cases, and which will produce in
the mind of the trier of facts a firm belief or conviction as to the facts sought to be
established.’” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶
22, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three
of the syllabus.
{¶53} As the Supreme Court of Ohio recently explained in Gwynne II, the appellate
court is constrained to considering only the findings in R.C. 2929.14(C)(4) that the trial
court has actually made. It then applies a clear and convincing evidence standard of proof
and “determine[s] whether it has a firm belief or conviction that the proposition of fact
represented by each finding is not true on consideration of the evidence in the record.” Id.
at ¶ 21. “[T]he deference that a trial court’s consecutive-sentence findings receive comes
from the language of R.C. 2953.08(G)(2), which imposes a higher evidentiary standard to
reverse or modify sentences.” Id. at ¶ 22. The court also noted that the higher evidentiary
standard for changing a trial court’s order of consecutive sentences does not mean “‘clear
and unequivocal.’” (Emphasis sic.) Id. at ¶ 23, quoting Ledford at 477. This recent
clarification of the standard of review in consecutive sentencing cases confirms that
meaningful appellate review of a consecutive sentence does exist and that deference to
the trial court is not the evidentiary standard for changing a consecutive sentence.
However, Gwynne II changed nothing regarding the “lack of evidence in the record” to
support the imposition of consecutive sentence metric.
{¶54} What then is the record to be reviewed?
{¶55} “[T]he term ‘record’ as used in R.C. 2953.08(G)(2) is very broad. It
encompasses all of the proceedings before the court, not just the sentencing.” State v.
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Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 22; see Gywnne II at ¶ 28, fn. 6; R.C.
2953.08(F)(1)-(4). “[W]hile the court has the obligation to make separate and distinct
findings under R.C. 2929.14(C)(4) before imposing sentence, support for those findings
may appear anywhere in the ‘record’ and not just at the time the court imposes
consecutive sentences.” Venes at ¶ 22. The Supreme Court of Ohio has explained that
“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. This concept remains
unchanged by Gwynne II.
{¶56} Applying these principles to this record, Ms. Amero has not established that
the record clearly and convincingly does not support the trial court’s finding under R.C.
2929.14(C)(4)(b), nor does a de novo review of the record create a firm belief or conviction
in my mind that the findings are not supported by the evidence in this record—the whole
record.
{¶57} The majority opinion narrowly views the record and effectively creates a new
rule that only “written or other victim impact statements” may be considered record
evidence supporting a finding of great or unusual harm. Despite the absence of any formal
victim impact statements, the record does contain (and the majority acknowledges this
record evidence) a pre-sentence investigation (“PSI”) report. The report reveals that the
victims described the nature and number of Ms. Amero’s acts of sexual conduct in their
reports to the police and that Ms. Amero confirmed them in a confession. Ms. Amero’s
sexual conduct with each victim was not a “one-off” aberration or a loss of control that was
not repeated. Rather, Ms. Amero engaged in fellatio with one victim on two separate
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occasions in her office. The other victim reported not only that she grabbed his penis
while in her office, but also that she tried to kiss him and touched him on “no more than
twenty occasions.” Thus, evidence in the record indicates that Ms. Amero is a serial
offender with two different victims, not someone who just lost control on one occasion.
{¶58} This court has recognized that “an offender’s prolonged sexual relationship
with an underage victim under his [or her] care in some capacity supports a trial court’s
finding that the harm caused was so great or unusual that no single prison term adequately
reflects the [seriousness of the] offender’s conduct.” State v. Russell, 11th Dist. Lake No.
2019-L-138, 2020-Ohio-3243, ¶ 137. The extent and repetitive nature of Ms. Amero’s
sexual conduct with each victim supports a finding of great or unusual harm.
{¶59} The PSI also notes Ms. Amero’s acknowledgments that she “damaged” the
trust relationship that the victims have with “an adult to be their role model and principal”
and that she is “sure” the victims are “embarrassed and uncomfortable because their
names and reputation are all a part of this.” Additionally, the defense’s sentencing
memorandum acknowledges that this case came to the police’s attention from rumors, so
of course there is additional reputation damage that necessarily comes with fellow
students and the community learning about these sexual encounters and the victims’
identities.
{¶60} The record further demonstrates that Ms. Amero was charged with
Intimidation of a Victim or Witness in a Criminal Case, which was dismissed as part of her
plea agreement. A sentencing court may consider charges that have been dismissed or
reduced under a plea agreement. State v. Rush, 2013-Ohio-2728, 996 N.E.2d 503, ¶ 13
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(5th Dist.). Layering repeated sexual conduct with threats designed to keep the victims
from reporting the conduct necessarily results in great or unusual harm.
{¶61} The majority’s discussion conflates two separate consecutive sentence
findings. Ms. Amero argued on appeal that the record does not support a finding under
R.C. 2929.14(C)(4)(b) (involving “great or unusual” harm). The majority appears to
discuss the “seriousness” of Ms. Amero’s conduct, which relates to the second factor in
R.C. 2929.14(C)(4) (“[C]onsecutive sentences are not disproportionate to the seriousness
of the offender’s conduct and to the danger the offender poses to the public.”) (Emphasis
added.) This court has explained that “[u]nder the plain language of R.C. 2929.14
[(C)(4)(b)], the ‘so great or unusual’ factor does not apply to the conduct of the defendant
but rather to the harm caused by such conduct.” (Emphasis added.) Russell at ¶ 125;
see State v. Smith, 2d Dist. Montgomery No. 28265, 2019-Ohio-5015, ¶ 76.
{¶62} Even if the seriousness of Ms. Amero’s conduct is considered, this court has
held that “[t]he nature and extent of [the defendant’s] conduct over an extended time
period in his [or her] role as a public official can operate to augment the seriousness of his
[or her] conduct for sentencing purposes.” (Emphasis added.) State v. Spellman, 160
Ohio App.3d 718, 2005-Ohio-2065, 828 N.E.2d 695, ¶ 30 (11th Dist.).
{¶63} The majority rests its conclusion that the “record is devoid of evidence” of
great or unusual on the following two grounds: one, “the State did not specify what harm
was caused to the victim, other than a general statement that sexual abuse causes harm,”
and two, “the PSI includes facts of the offenses but does not include any statements by
the victim of what specific harm they suffered.” If we require the victim to make a
statement detailing the specifics of the harm caused, how would a toddler be able to
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communicate the “specific harm” caused by sexual abuse? How would any court then be
able to run sentences consecutively?
{¶64} Finally, while we have authority to modify a sentence, I believe we should
generally avoid being in the resentencing business. If I shared the majority’s view of the
record in this case, I would vacate the sentence and remand for resentencing.
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