State v. Dowell , 2018 Ohio 4044 ( 2018 )

[Cite as State v. Dowell, 2018-Ohio-4044.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MIAMI COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2017-CA-5
:
v. : Trial Court Case No. 2016-CR-320
:
ANTHONY C. DOWELL : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 5th day of October, 2018.
...........
RYAN C. SPITZER, Atty. Reg. No. 0093515, Assistant Prosecuting Attorney, Miami
County Prosecutor’s Office, 201 West Main Street, Troy, Ohio 45373
Attorney for Plaintiff-Appellee
JAMES A. ANZELMO, Atty. Reg. No. 0068229, 446 Howland Drive, Gahanna, Ohio
43230
Attorney for Defendant-Appellant
.............
TUCKER, J.
-2-
{¶ 1} Defendant-appellant Anthony Dowell appeals from his convictions on two
counts of sexual battery. Dowell contends that the convictions were not supported by
the weight of the evidence and that the State did not present evidence sufficient to sustain
the convictions. He further contends that counsel was ineffective. Dowell also claims
that his convictions violated his fundamental liberty interests and were, thus,
unconstitutional. Finally, he claims that the trial court erred in sentencing.
{¶ 2} We conclude that there was sufficient, credible evidence upon which a
reasonable finder of fact could have relied in finding Dowell guilty of the charged offenses.
We further find no merit to his claim that his constitutional rights were violated or that the
trial court erred in sentencing. Finally, we cannot conclude that counsel’s failure to object
to evidence resulted in prejudice.
{¶ 3} Accordingly, the judgment of the trial court is affirmed.
I. Facts and Procedural History
{¶ 4} In January 2016, Chad Albers, the assistant principal for Piqua Junior High
School, was given a handwritten note. After an investigation, Albers determined that J.
was one of the two students involved in writing the note. Albers spoke with J. and then
contacted Children’s Services. On January 22, 2016, Piqua Police Officer Adam Coe
was dispatched to J.’s residence to assist Children’s Services regarding a possible sexual
offense. Coe, along with an employee of Children’s Services, interviewed J. Coe
subsequently interviewed Dowell, who is J.’s father, at the police station. On June 7,
2016, Dowell was indicted on two counts of sexual battery. He waived his right to a jury
-3-
trial, and the matter proceeded to a bench trial on February 28, 2017.
{¶ 5} J. testified that at the time of the offenses, she was living with Dowell, as well
as Dowell’s wife and four other children. J. testified that in the summer of 2015, Dowell
attempted to get her to engage in masturbation. She testified that the time frame stuck
out in her mind because it occurred around the time she spent the night at a friend’s
house. J. testified that she had lived with Dowell for approximately two and one half
years, and that summer was the only time he let her spend the night with a friend. With
regard to the incident, J. testified that Dowell called her into his bedroom, told her to pull
down her pants and underwear, and had her sit on the bed with her legs across his lap.
She testified that Dowell asked her if she knew how to do it. J. testified that Dowell told
her to “move [her] fingers around and see if [she] could feel a bump.” Tr. p. 76. J.
testified that when she told him no, he stated that he was going to show her how and that
he put his fingers inside her vagina. She testified that she told him to stop “maybe once
or twice” but that she stopped making this demand because he was “getting mad at [her]
for telling him to stop.” Tr. p. 77.
{¶ 6} J. also testified that she got up on a school morning to get ready for school
and was told that she had to stay home because she needed to be treated for lice. She
testified that, although she was not the only child in the house who had long hair, she was
the only one who had to stay home. She testified that lice treatment was applied to her
hair and that she sat in the dining room with Dowell. In describing the incident, J. testified
as follows:
A: After sitting there for a little bit, a while, [Dowell] asked me to pull down
my pants. And I asked why. He said because he wanted – he was looking
-4-
for something; I don’t remember what it was called, but it was to see if I had
had sex or not.
***
Q: And when you say you don’t remember what it’s called, what do you
mean by that?
A: Like it – I don’t remember what it’s called, but it’s something to see if I
had had sex or not, apparently, I’m not sure what it was called.
Q: When he used the word on this date, did you know what he was talking
about?
A: No.
***
Q: All right, and what did he do next?
A: He told me to open up my legs.
***
A: He said to spread them, so I spread my legs.
Q: Okay. What did he say to you after you did that?
A: He had asked me to hold open my vagina, so he could look inside to
see if it was there.
Q: What word did he use to describe your vagina?
A: “Pussy.”
Q: Okay. And was he satisfied with how you were holding your vagina
apart?
A: No.
-5-
***
A: According – apparently I was not holding it right, so he tried it himself.
Q: All right, and what did he do, when you say “try it” what do you mean?
A: He told me to move my fingers and he put his hand, and he tried to
open my vagina or so and, yeah.
Q: And where did he have his hands during this – at this time in relation to
your vagina?
A: Inside my vagina.
***
Q: And how do you know his fingers were in fact inside your vagina?
A: I could feel it.
Q: What did your dad tell you after he – or what did your dad have in his
hand when he was doing this?
A: In – he only had one hand there and in his other hand he had his phone.
Q: What was he doing with his phone?
A: He had the flashlight on it, and he was looking around.
Q: Looking around where?
A: Inside my vagina.
Q: And what did your dad tell you the conclusions were or the result of him
checking to see if you were still a virgin?
A: That the thing was still there and I hadn’t had sex.
***
Q: What happened when your dad was, as he termed it “checking,” when
-6-
he was done checking? What happened after that?
A: I pulled up my pants and he turned back to the table and continued to
play on his phone.
Tr. p. 69-71.
{¶ 7} J. further testified that Dowell then began a conversation with her about
whether she had been masturbating. She testified that when she answered negatively,
Dowell asked her why she was not. She testified that he then told her to try to find the
“bump” and move her finger around to see if it felt good. J. testified that she told him it
did not feel good, and he stated that it should. She testified that he then got a call and
she left the room.
{¶ 8} Dowell’s mother, “Grandmother,” also testified at trial. She testified that
Dowell and his children came to her home for a cookout on July 4, 2015. Grandmother
testified that one of the children mentioned some words that made her wonder where they
had learned the words. She testified that Dowell then called her “an old fogey and [stated
that she was] behind the times.” Tr. p. 113. Grandmother testified that Dowell told her
that the word masturbation had come up because he had taught the children how to
masturbate because he did not want them to have sex and get a sexually transmitted
disease.
{¶ 9} Grandmother testified that, in 2016, Dowell called her and stated that he had
been at the police station with J. Grandmother further testified as follows:
Q: And why’d he tell you he was at the police station?
A: He said that [J.] told about some things that happened, and he got upset
with her because she was having sex. That’s what the kids had told him
-7-
was she was having sex. And so he took her – was going to take her to
the doctor and have the doctor check to see if she was still a virgin * * * He
said the doctor wouldn’t do it because she said she was not having sex, so
the doctor seen – saw no need to go any further with it.
Q: And how did he respond to that doctor visit?
A: I think he was angry because he said he took her home and he was
going to check himself to see if she was still a virgin.
Q: And what did he tell you about checking [J.]?
A: He told me that he made her take her clothes off, made her hold herself
as far open as she could and – and he – he couldn’t see; he used a flashlight
on his cell phone, but couldn’t see anything, so he used his fingers to spread
her open further so he could see up inside to see if she was still a virgin.
Q: And did he tell you anything about where his fingers were in relation to
[J.’s] vagina at that time?
A: They were inside, just at the edge but inside.
Tr. p. 115-116.
{¶ 10} Coe also testified at trial. During his testimony, the videotape of Coe’s
interview with Dowell was introduced. During the interview, Dowell stated that he had
been informed that J. had engaged in sexual relations. Dowell stated that he took J. to
a gynecologist to check whether she had engaged in sex, but that the gynecologist
refused to check. Dowell stated that he was not worried about pregnancy, but that he
was concerned about sexually-transmitted diseases.
{¶ 11} Dowell stated that he subsequently decided to check J. himself using a
-8-
diagram he found online. According to Dowell, he had J. sit on a seat and spread her
legs while he used his cellphone flashlight to determine whether her hymen was still intact.
Dowell denied any similar actions in the past. However, when Coe asked Dowell about
a “summer incident,” Dowell indicated that in 2015 he had a conversation with J. regarding
masturbation. He indicated that he wanted to make sure that she knew not to engage in
masturbation in public. Dowell indicated that he showed her how to masturbate using a
diagram he found online. Dowell stated that he told J. to feel around for a bump and to
focus on that area. Dowell denied touching J. during either incident.
{¶ 12} The trial court found Dowell guilty of both counts of sexual battery and
sentenced him to a prison term of four years on each count; the terms were to be served
consecutively, for an aggregate sentence of eight years. The trial court also designated
Dowell a Tier III sexual offender. Dowell filed a timely appeal.
II. Ineffective Assistance of Counsel
{¶ 13} Dowell’s first assignment of error states as follows:
DOWELL RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, IN
VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES
CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO
CONSTITUTION.
{¶ 14} Dowell contends that he was denied the effective assistance of counsel at
trial. In support, he argues that counsel’s failure to object to the introduction of the
handwritten note that Albers traced to J. was error. He further contends that trial counsel
was ineffective because he failed to object to the testimony of J.’s friend, A., who was the
-9-
co-author of the note.
{¶ 15} The note, which was admitted into evidence as State’s Exhibit 2, is a small,
yellow piece of paper with some writing in ink and some in pencil. According to the
record, J.’s writing is in pencil and A.’s responses are in ink. The text of the note is as
follows:
J.: I was told to tell someone else this but remember when S. tould [sic]
you guys my dad touched me inapropretly [sic]?
A.: Yeah.
J.: He did that again the day I was absent. P. [sic] told me I needed to tell
someone else that!
A.: [T]ell the principal/Mrs. Mcgarahn[.]
J.: Why?
A.: You need to.
J.: What will she do?
A.: Help you.
J.: Won’t she tell my parents?
A.: She’ll tell the government.
J.: And they say something to my parents!
A.: Not really. Not if you tell her don’t.
J.: Do you know what the government will do?
A.: Investigate.
J.: I asked P. to tell my actual mom what he did to me. When should I tell
her?
-10-
{¶ 16} This court reviews alleged instances of ineffective assistance of trial counsel
under the two-pronged analysis set forth in Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by the Supreme Court of Ohio in State
v. Bradley, 42 Ohio St. 3d 136, 538 N.E.2d 373 (1989). These cases provide that trial
counsel is entitled to a strong presumption that his or her conduct falls within the wide
range of reasonable assistance. Strickland at 689; Bradley at 142. To reverse a
conviction based on ineffective assistance of counsel, it must be demonstrated that trial
counsel's conduct fell below an objective standard of reasonableness and that his or her
errors were serious enough to create a reasonable probability that, but for the errors, the
result of the trial court proceeding would have been different. Bradley at 142.
{¶ 17} We begin by noting that counsel did object to A.’s testimony regarding the
content of the note. Indeed, counsel objected more than once to this testimony. Thus,
the claim that counsel was ineffective with regard to A.’s testimony is without merit.
{¶ 18} We next turn to the claim that counsel was ineffective for failing to object to
the admission of the note which Dowell claims was hearsay.
{¶ 19} Hearsay “is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Evid.R. 801(C). A statement can be a written assertion. Evid.R. 801(A).
Statements made outside the courtroom, offered at trial to prove the truth of what they
assert, are generally inadmissible as hearsay unless an exception applies. Evid.R.
801(C); Evid.R. 802; State v. DeMarco, 31 Ohio St. 3d 191, 195, 509 N.E.2d 1256 (1987).
{¶ 20} Assuming the note constituted inadmissible hearsay and that counsel
should have objected thereto, we cannot conclude that Dowell has met the second prong
-11-
of the Strickland test. We cannot say that the admission of the note without objection
was serious enough to create a reasonable probability that, but for the error, the result of
the trial court proceeding would have been different. As discussed below, there was
sufficient evidence in this record upon which the trial court could have reasonably
convicted Dowell regardless of the admission of the note. Further, without any evidence
to the contrary, we will not presume that the trial court considered any improper evidence
in deciding to convict. “Indeed, a judge is presumed to consider only the relevant,
material and competent evidence in arriving at a judgment, unless the contrary
affirmatively appears from the record.” State v. Eubank, 60 Ohio St. 2d 183, 187, 398
N.E.2d 567 (1979), citing State v. White, 15 Ohio St. 2d 146, 151, 239 N.E.2d 65 (1968).
{¶ 21} There is nothing in this record to indicate that the trial court improperly
considered the contents of the note. Indeed, during the sentencing hearing, the trial
court specifically noted that it found the testimony of J. and Grandmother credible and
reliable. The trial court provided a valid basis for its decision to convict, and we cannot
say that it was unsupported by the evidence. Thus, we cannot conclude that Dowell has
shown that the note had a prejudicial effect, as he has not demonstrated that but for the
admission of the note, the outcome of the trial would have been different.
{¶ 22} The first assignment of error is overruled.
III. Sufficiency and Manifest Weight of the Evidence
{¶ 23} The second and third assignments of error asserted by Dowell are as
follows:
DOWELL’S CONVICTIONS ARE BASED ON INSUFFICIENT
-12-
EVIDENCE, IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE
FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND SECTIONS 1 & 16, ARTICLE I OF THE OHIO
CONSTITUTION.
DOWELL’S CONVICTIONS ARE AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE IN VIOLATION OF THE DUE PROCESS
CLAUSE OF THE FIFTH AND FOURTEENTH AMENDMENTS IN THE
UNITED STATES CONSTITUTION AND SECTIONS 1 & 16, ARTICLE I
OF THE OHIO CONSTITUTION.
{¶ 24} Dowell contends that the State did not present evidence sufficient to sustain
his convictions. He further contends that the convictions were not supported by the
weight of the evidence.
{¶ 25} “A sufficiency of the evidence argument disputes whether the State has
presented adequate evidence on each element of the offense to allow the case to go to
the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery
No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St. 3d 380, 678
N.E.2d 541 (1997). In such situations, we apply the test enunciated in State v. Jenks,
61 Ohio St. 3d 259, 574 N.E.2d 492 (1991):
An appellate court's function when reviewing the sufficiency of the evidence
to support a criminal conviction is to examine the evidence admitted at trial
to determine whether such evidence, if believed, would convince the
average mind of the defendant's guilt beyond a reasonable doubt. The
relevant inquiry is whether, after viewing the evidence in a light most
-13-
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime proven beyond a reasonable doubt.
(Citation omitted). Id. at paragraph two of the syllabus.
{¶ 26} In contrast, “[a] weight of the evidence argument challenges the believability
of the evidence and asks which of the competing inferences suggested by the evidence
is more believable or persuasive.” (Citation omitted.) Wilson at ¶ 12. A court reviews “
‘the entire record, weighs the evidence and all reasonable inferences, considers the
credibility of witnesses and determines whether in resolving conflicts in the evidence, the
jury clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered. The discretionary power to grant a
new trial should be exercised only in the exceptional case in which the evidence weighs
heavily against the conviction.’ ” Thompkins at 387, quoting State v. Martin, 20 Ohio
App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 27} Further, “[a]lthough sufficiency and manifest weight are different legal
concepts, manifest weight may subsume sufficiency in conducting the analysis; that is, a
finding that a conviction is supported by the manifest weight of the evidence necessarily
includes a finding of sufficiency.” (Citations omitted.) State v. McCrary, 10th Dist. Franklin
No. 10AP-881, 2011-Ohio-3161, ¶ 11. Accord State v. Robinson, 2d Dist. Montgomery
No. 26441, 2015-Ohio-1167, ¶ 17. Consequently, “a determination that a conviction is
supported by the weight of the evidence will also be dispositive of the issue of sufficiency.”
(Citations omitted.) State v. Braxton, 10th Dist. Franklin No. 04AP-725, 2005-Ohio-2198,
¶ 15.
{¶ 28} Dowell was convicted of sexual battery in violation of R.C. 2907.03(A)(5),
-14-
which states that “[n]o person shall engage in sexual conduct with another, not the spouse
of the offender, when * * * [t]he offender is the other person's natural or adoptive parent,
or a stepparent, or guardian, custodian, or person in loco parentis of the other person.”
Sexual conduct as defined as “vaginal intercourse between a male and female; anal
intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without
privilege to do so, the insertion, however slight, of any part of the body or any instrument,
apparatus, or other object into the vaginal or anal opening of another. Penetration,
however slight, is sufficient to complete vaginal or anal intercourse.” R.C. 2907.01(A).
{¶ 29} Dowell first contends that the State did not present evidence sufficient to
sustain the conviction. In support, he argues that the prohibition against sexual battery
does not apply to touching performed while engaged in the parental care of a child and
that the State thus failed to prove that he acted without privilege. In other words, he
argues that, as J.’s natural parent, he had the privilege to act as he did because he was
merely providing parental care.1 Dowell cites State v. Mundy, 99 Ohio App. 3d 275, 650
N.E.2d 502 (2d Dist. 1994), for the proposition that touching one’s child, when done in the
course of providing parental care, cannot be deemed criminal.
{¶ 30} In Mundy, this court attempted to distinguish innocent touching performed
in the course of raising a child from touching done for the purpose of sexual arousal or
gratification as proscribed by R.C. 2907.05. Id. at 289. In doing so, we noted that
touching with “the specific intent or purpose to achieve sexual arousal or gratification * * *
1
We note that Dowell cites R.C. 2901.01(L) for the definition of privilege as it relates to
sexual battery. R.C. 2901.01 does not contain a section (L). However, R.C.
2901.01(A)(12) defines privilege as “an immunity, license, or right conferred by law,
bestowed by express or implied grant, arising out of status, position, office, or relationship,
or growing out of necessity.”
-15-
distinguishes criminal conduct from noncriminal, innocent behavior, such as accidental
touching or a touching of the prohibited areas incidental to bathing, changing a diaper, or
playful wrestling.” Id. Nowhere in our opinion did we opine that every act of touching
done by a parent constitutes noncriminal, innocent behavior.
{¶ 31} Even were we to assume that teaching a 14-year-old child to masturbate or
that inspecting a child’s hymen falls under the rubric of acceptable parental care, inserting
one’s fingers into the child’s vagina to achieve these goals clearly exceeds the bounds of
that care. We find no authority conferring a right or license to a parent to insert fingers
into a child’s vagina under the circumstances cited by Dowell, nor do we find authority
granting a parent immunity from prosecution for such action. In short, we find no
privilege that would permit Dowell’s behavior.
{¶ 32} As noted, J. testified that Dowell inserted his fingers into her vagina on two
separate occasions. This testimony was corroborated by Dowell’s mother who testified
that Dowell told her that he had placed his finger into J.’s vagina while trying to determine
whether her hymen was intact. This evidence was sufficient to permit a reasonable
finder of fact to conclude that the State presented evidence of each element of the offense
of sexual battery.
{¶ 33} Next, Dowell contends that his convictions were not supported by the weight
of the evidence because the testimony of his mother and of J. was not credible. He first
claims that J. was angry with him because she did not get to visit with her mother once
Dowell obtained custody, and that she, thus, fabricated the allegations against him. In
support, he relies upon the testimony of J.’s half-sister, D., who testified that J. was mad
at Dowell because J. had been removed from her mother’s custody, and that J. stated
-16-
that she did not want to live with Dowell because she did not get to see her friends or her
mother. D. also testified that J. “would retaliate by getting extremely angry, telling lies.”
Tr. p. 151.
{¶ 34} J. testified that she was initially uncomfortable when she began having
visitation with Dowell because she had not met him until he initiated visitation during the
year she was in the sixth grade. She testified that when Dowell obtained custody at the
end of her sixth grade year, she did not have any visitation with her mother, and that she
was upset by the lack of visitation. Defense counsel cross-examined J. regarding her
feelings, but J. never stated that she held Dowell responsible for the lack of visitation.
Indeed, her testimony indicated that her mother’s behavior was the reason for the lack of
visitation.
{¶ 35} Dowell also contends that his mother’s testimony was not credible because
she did not, during her two interviews with investigators, mention her claim that Dowell
had told her he inserted his fingers into J.’s vagina. When asked about this,
Grandmother indicated that she answered the questions the investigators asked her, and
that they never asked her any questions about the issue of penetration. Grandmother
further testified that she was not happy that she was called to testify against her son at
trial. Grandmother’s testimony was corroborated by one of the investigators who
indicated that he interviewed Grandmother mainly with regard to determining whether
there were any other victims and that he could not recall asking her about penetration.
Additionally, Coe did not testify that he asked Grandmother about penetration.
{¶ 36} “Because the factfinder * * * has the opportunity to see and hear the
witnesses, the cautious exercise of the discretionary power of a court of appeals to find
-17-
that a judgment is against the manifest weight of the evidence requires that substantial
deference be extended to the factfinder's determinations of credibility. The decision
whether, and to what extent, to credit the testimony of particular witnesses is within the
peculiar competence of the factfinder, who has seen and heard the witness.” State v.
Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684, *4 (Aug. 22, 1997). ”The
trier of fact is better situated than an appellate court to view witnesses and to observe
their demeanor, gestures, voice inflections and to use those observations in weighing
credibility.” State v. Lewis, 4th Dist. Scioto No. 01CA2787, 2002 WL 368625, * 3 (Feb.
25, 2002). “A trier of fact is free to believe all, part or none of the testimony of each
witness.” Id., citing State v. Long, 127 Ohio App. 3d 328, 713 N.E.2d 1 (4th Dist.1998).
{¶ 37} Dowell’s claims regarding the credibility of Grandmother and J. were
explored during the defense’s cross-examination of the witnesses. The trial court, thus,
was aware of these issues but still credited their testimony. This court will not substitute
its judgment for that of the trier of facts on the issue of witness credibility unless it is
apparent that the trier of fact lost its way in arriving at its verdict. State v. Bradley, 2d Dist.
Champaign No. 97-CA-03, 1997 WL 691510 (Oct. 24, 1997). Our review of the transcript
and record does not convince us that the trial court, as the finder of fact, lost its way in
deciding to credit the testimony of J. and Grandmother.
{¶ 38} We conclude that the record contained evidence sufficient to support the
convictions and that the convictions were not against the weight of the evidence.
Accordingly, the second and third assignments of error are overruled.
IV. Liberty Interest to Parent a Child
-18-
{¶ 39} Dowell asserts the following as his fourth assignment of error.
DOWELL’S CONVICTIONS ARE UNCONSTITUTIONAL PURSUANT TO
HIS LIBERTY INTERESTS UNDER THE FOURTEENTH AMENDMENT
TO THE UNITED STATES CONSTITUTION.
{¶ 40} Dowell contends that, because he “acted in his role of a parent being
concerned about the health of his daughter upon learning that she may be sexually
active,” his conduct was “protected by his liberty interests under the Fourteenth
Amendment to the United States Constitution.”
{¶ 41} Dowell is correct that the ability to raise his child is a fundamental liberty
interest as “[t]he rights to conceive and to raise one's children have been deemed
‘essential’ * * *.” Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551
(1972), quoting Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 67 L. Ed. 1042
(1923). However, the Supreme Court of Ohio has noted that in some circumstances,
this right is not inviolate. See In re K.H., 119 Ohio St. 3d 538, 2008-Ohio-4825, 895
N.E.2d 809, wherein the Court stated:
In Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 147 L. Ed. 2d 49
(2000), the United States Supreme Court described the interest of parents
in the care, custody, and control of their children as one of the oldest of the
fundamental liberty interests recognized in American law. We also
recognize that there is an essential and basic civil right to conceive and
raise children. * * * [But, d]espite the fact that we have found that parents
who are suitable have a paramount right to raise and care for their children,
it is equally well settled that “[t]he fundamental interest of parents is not
-19-
absolute. The constitutional right to raise one's children does not include
a right to abuse, exploit, or neglect them, nor is there a right to permit others
to do so.
Id. at ¶ 39 -40.
{¶ 42} Again, even if we were to accept Dowell’s apparent claim that teaching a
child to masturbate or checking to determine whether a child’s hymen is intact are inherent
parental liberty interests, we cannot find and Dowell does not cite, any authority for the
proposition that a parent may insert his fingers into a child’s vagina in furtherance of such
goals. Accordingly, we conclude that Dowell’s claim that he has a liberty interest in such
activities lacks merit. Likewise, we conclude that his claim that his convictions were
unconstitutional because they violated these claimed interests has no merit.
Accordingly, the fourth assignment of error is overruled.
V. Consecutive Sentences
{¶ 43} Dowell’s fifth assignment of error states as follows:
THE TRIAL COURT UNLAWFULLY ORDERED DOWELL TO SERVE
CONSECUTIVE SENTENCES, IN VIOLATION OF HIS RIGHTS TO DUE
PROCESS, GUARANTEED BY SECTION 10, ARTICLE I OF THE OHIO
CONSTITUTION AND THE FIFTH AND FOURTEENTH AMENDMENTS
TO THE UNITED STATES CONSTITUTION.
{¶ 44} Dowell contends that the trial court erred by imposing consecutive
sentences.
{¶ 45} If a defendant challenges a trial court's consecutive-sentence findings,
-20-
“R.C. 2953.08(G)(2)(a) directs the appellate court ‘to review the record, including the
findings underlying the sentence’ and to modify or vacate the sentence ‘if it clearly and
convincingly finds * * * [t]hat the record does not support the sentencing court's findings
under division * * * (C)(4) of section 2929.14 * * * of the Revised Code.’ ” State v. Bonnell,
140 Ohio St. 3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 28, quoting R.C.
2953.08(G)(2)(a).
{¶ 46} “There are two ways that a defendant can challenge consecutive sentences
on appeal. First, the defendant can argue that consecutive sentences are contrary to
law because the court failed to make the necessary findings required by R.C.
2929.14(C)(4).” (Emphasis sic.) State v. Adams, 2d Dist. Clark No. 2014-CA-13, 2015-
Ohio-1160, ¶ 17, citing R.C. 2953.08(G)(2)(b) and Bonnell at ¶ 29. “Second, the
defendant can argue that the record does not support the findings made under R.C.
2929.14(C)(4).” Id., citing R.C. 2953.08(G)(2)(a) and State v. Moore, 2014-Ohio-5135,
24 N.E.3d 1197 (8th Dist.).
{¶ 47} R.C. 2929.14(C)(4) is an exception to the presumption in favor of concurrent
sentences in R.C. 2929.41(A). In this regard, R.C. 2929.14(C) provides that:
If multiple prison terms are imposed on an offender for convictions of
multiple offenses, the court may require the offender to serve the prison
terms consecutively if the court finds that the consecutive service 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 if the court also finds any of the following:
-21-
(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 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.
{¶ 48} Dowell claims that the trial court failed to make the appropriate findings
during the sentencing hearing. A review of the sentencing hearing transcript shows that
the trial court made the following statements with regard to the consecutive sentences:
* * * Those sentences shall run consecutively. These sentences – the
consecutive sentences are necessary in this particular case to protect the
public and punish the Defendant. These consecutive sentences are not
disproportionate. The harm in these cases – in this case is so great and
unusual that a single term does not adequately reflect the seriousness of
the conduct. These being two separate incidences of unlawful sexual
conduct.
{¶ 49} “[A] word-for-word recitation of the language of the statute is not required,
-22-
and as long as the reviewing court can discern that the trial court engaged in the correct
analysis and can determine that the record contains evidence to support the findings,
consecutive sentences should be upheld.” Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-
3177, 16 N.E.3d 659, ¶ 29. Although the precise statutory language was not used at the
sentencing hearing, we can easily conclude that the trial court was referencing R.C.
2929.14(C)(4)(b) when it stated “[T]he harm * * * in this case is so great and unusual that
a single term does not adequately reflect the seriousness of the conduct. These being
two separate incidences of unlawful sexual conduct.” We can additionally discern from
this language that the trial court concluded that the two incidents of sexual battery
constituted a course of conduct, and that the harm caused by the two acts of sexual
battery was so great or unusual that a single prison term would not adequately reflect the
seriousness of Dowell’s conduct. This case, we note, is in contrast to cases such as
State v. Wills, 2d Dist. Montgomery No. 25357, 2013-Ohio-4507, and State v. Thomas,
2d Dist. Montgomery Nos. 25331, 25332, 2014-Ohio-1120, in which, based upon the trial
court’s sentencing pronouncements, it could not be concluded that the trial court had
engaged in the required consecutive sentence analysis. We further conclude that there
was sufficient evidence in the record to support the findings regarding consecutive
sentences.
{¶ 50} The fifth assignment of error is overruled.
VI. Conclusion
{¶ 51} All of Dowell’s assignments of error being overruled, the judgment of the
trial court is affirmed.
-23-
.............
WELBAUM, P.J., concurs.
DONOVAN, J. concurs in part and dissents in part:
{¶ 52} I concur with the majority’s findings that Dowell was not denied the
effective assistance of counsel, that his convictions were supported by the evidence and
not against the manifest weight of the evidence, and that his convictions did not violate
his liberty interest in parenting his child.
{¶ 53} I would reverse and remand on the issue of consecutive sentences. In
Wills we noted the following language from State v. Venes, 2013-Ohio-1891, 992 N.E.2d
453, ¶ 14-17 (8th Dist.):
[N]ot requiring slavish adherence to the specific wording of the
statute is not the same as relieving the court of the duty to make the required
“findings.” R.C. 2929.14(C)(4) requires the court to make specific
“findings.” In the past, we have found those findings can be implicit in
context when the court’s statements during sentencing are intended to
encompass the relevant provisions of the sentencing statutes. But in doing
so, we have arguably frustrated the purposes underlying the requirement
for findings as a predicate for ordering consecutive sentences.
The [S]upreme [C]ourt has recognized that “Ohio appears to be
unique in having a rule that sentences of imprisonment shall be served
concurrently.” The imposition of consecutive sentences in Ohio is thus an
exception to the rule that sentences should be served concurrently. And
there is no doubt that the provisions of H.B. 86, like those of S.B.2 before it,
-24-
were intended, among other things, to alleviate overcrowding in the prison
system.
By imposing a requirement that the trial judge make specific findings
before ordering sentences to be served consecutively, the General
Assembly toughened the standard for consecutive sentences. However,
the revived consecutive sentencing statute codified in R.C. 2929.14(C)(4)
does not place a heavy burden on the trial judge. Indeed, it is arguably
easier to impose consecutive sentences today than it was under former
R.C. 2929.14(E)(4) because the revived version did away with the
requirement that the court justify its findings by giving reasons for making
those findings.
Because the statute so clearly requires specific findings for the
imposition of consecutive sentences, those findings must be entered at the
time the court orders sentences to be served consecutively. What we
mean by this is that regardless of what the trial judge might say during
sentencing regarding the purposes and goals of criminal sentencing,
compliance with R.C. 2929.14(C)(4) requires separate and distinct findings
in addition to any findings related to purposes and goals of criminal
sentencing. Too often, we have been called to examine words or phrases
scattered throughout a sentencing transcript and piece them together to
decide whether the court made the required findings. * * * If the word
“findings” is to have any meaning at all, it means nothing less than the court
must “engage[ ] in the required analysis and select[ ] the appropriate
-25-
statutory criteria” before ordering sentences to be served consecutively.
Only then will the imposition of consecutive sentences not be contrary to
law.
Wills at ¶ 31.
{¶ 54} We should not infer nor cobble together findings. Here, a finding under
R.C. 2929.14(C)(4)(b) addressing course of conduct was not made and should not be
inferred.
Copies sent to:
Ryan C. Spitzer
James A. Anzelmo
Anthony C. Dowell
Hon. Jeannine N. Pratt