State v. Klose , 2010 Ohio 5674 ( 2010 )

[Cite as State v. Klose, 2010-Ohio-5674.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 5-10-12
v.
RONALD J. KLOSE, OPINION
DEFENDANT-APPELLANT.
Appeal from Hancock County Common Pleas Court
Trial Court No. 2009 CR 45
Judgment Affirmed
Date of Decision: November 22, 2010
APPEARANCES:
Scott T. Coon for Appellant
Drew A. Wortman for Appellee
Case No. 5-10-12
WILLAMOWSKI, P.J.
{¶1} Defendant-appellant, Ronald J. Klose, appeals the judgment of the
Hancock County Common Pleas Court, finding him guilty of eleven counts of
unlawful sexual conduct with a minor and sentencing him to an aggregate term of
thirteen years in prison. On appeal, Klose contends that the trial court erred in
denying his motion to suppress his statements, erred in denying his motion to
suppress the evidence found in his vehicle, and erred in sentencing him to a term
of thirteen years in prison. For the reasons set forth herein, we affirm the
judgment of the trial court.
{¶2} On December 15, 2008, Deputy Rodney Griffin of the Hancock
County Sheriff’s Office was on routine patrol in Marion Township in the Deer
Landing sub-division at approximately 7:30 p.m. when he spotted a vehicle parked
off the roadway on an unlit, dead end street. Dep. Griffin was patrolling the area
because it was a newer housing development and Marion Township had been
experiencing a number of break-ins and thefts from new homes that were under
construction. Dep. Griffin drove towards the vehicle and stopped his patrol car
approximately two car lengths in front of the vehicle and shined his spotlight on
the darkened vehicle. He observed Klose in the driver’s seat. Dep. Griffin then
noticed Klose begin moving and bending over as if to pull something up. He also
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noticed a second white male located in the back seat, and he saw this person reach
over the front passenger seat and pull a pair of pants into the back.
{¶3} Dep. Griffin exited his patrol car so that he could approach the
vehicle. At this point, Klose started the vehicle and began to drive away. Dep.
Griffin waved his arms and flashlight, signaling Klose to stop, and Klose
complied. Klose then rolled down his window, and Dep. Griffin asked him for
identification. Dep. Griffin noticed several pornographic magazines below
Klose’s feet on the floorboard. Klose appeared nervous, was shaking, and was
breathing heavily. The belt on his pants was also unfastened. Upon looking at the
passenger, Dep. Griffin thought he was a juvenile. In addition, Dep. Griffin
noticed that the passenger was sitting with his arms crossed over his knees, bent
over, and with his pants only pulled up to his knees.
{¶4} Both Klose and his passenger produced identification. The
passenger turned out to be Klose’s fourteen-year-old nephew. Dep. Griffin had
the nephew exit the vehicle, whereupon he noticed that the nephew was not
wearing any shoes. The nephew pulled his pants up, and Dep. Griffin spoke to
him inside of the patrol car while Klose was told to remain in his own vehicle.
Once inside the patrol car, the nephew stated that he did not want to get Klose into
trouble and revealed that Klose had been performing fellatio on him inside of the
vehicle prior to the deputy arriving.
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{¶5} Dep. Griffin called for an additional officer and also requested that
Detective Thomas Blunk1 and Children’s Services be contacted due to the age of
the nephew and what he told Dep. Griffin. A back-up officer arrived, and Klose
was asked to step out of his vehicle and was informed that he was going to be
taken to the sheriff’s office for further investigation. Klose was then patted down
for weapons, handcuffed, and placed in Dep. Griffin’s vehicle.
{¶6} The deputies conducted an inventory of the contents of Klose’s
vehicle because it was being impounded. Inside the vehicle, the deputies found a
number of pornographic magazines under the floor mat on the driver’s side
floorboard, although these magazines had been on top of the floor mat when Dep.
Griffin first noticed them. After the inventory, Klose and his nephew were taken
to the sheriff’s office. The nephew was then taken to the Center for Safe and
Healthy Children in Findlay, Ohio, where he was interviewed by Det. Blunk.
{¶7} After interviewing the child, Det. Blunk and Dep. Griffin returned to
the sheriff’s office to interview Klose. Prior to questioning Klose about his
conduct with his nephew, Det. Blunk provided Klose with a Miranda rights form
and asked him what was the highest grade in school that he had completed. Klose
stated that he completed 12th grade. Det. Blunk then had Klose read the form
aloud. Klose read the form as requested and stated that he understood what he had
1
Det. Blunk testified that he holds the title of both detective and sergeant and that either characterization of
him was appropriate. For purposes of this opinion, we elect to refer to him as Det. Blunk.
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read. Det. Blunk further asked Klose if he understood that he had the right to an
attorney and that he did not have to talk to Det. Blunk. Klose indicated that he
understood, he had no questions, and agreed to speak with Det. Blunk. He then
signed the form and spoke with Det. Blunk.
{¶8} During his interview with Det. Blunk, Klose stated that he picked his
nephew up after school, had dinner with him, drove around, and then parked in the
Deer Landing sub-division. He further admitted that he brought the magazines for
his nephew to view and that he performed fellatio on his nephew while his nephew
looked at the magazines. He then allowed his nephew to have anal intercourse
with him and once again performed fellatio on his nephew. Klose explained that
he returned to the front seat and was cleaning himself up when Dep. Griffin
arrived. Klose also stated that he had engaged in this type of activity with his
nephew on a weekly basis beginning in October of that year but that they had
engaged in similar activity on a sporadic basis since June of 2008.
{¶9} At the conclusion of the interview, Klose provided a written
statement that included many of the details he provided to Det. Blunk. Det. Blunk
asked him a few more questions, which he answered, and the interview was
concluded.
{¶10} On February 24, 2009, Klose was indicted on eleven counts of
unlawful sexual conduct with a minor in violation of R.C. 2907.04(A), each a
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felony of the third degree. Klose pled not guilty to each count. Thereafter, Klose
filed a motion to suppress all evidence obtained as a result of the stop of his
vehicle and to suppress his statements to law enforcement because he was not
competent to waive his Miranda rights.
{¶11} Klose was evaluated by Dr. Jolie Brams, a clinical psychologist, at
the request of Klose’s attorney in order to determine his ability to voluntarily and
knowingly waive his Miranda rights. Dr. Brams issued a report, opining that
Klose “did not possess the developmental or cognitive abilities to knowingly and
voluntarily waive his right to counsel.” (Supp. Hrg., 10/8/09, Def. Exh. A.) In
response, the State requested that Klose be given an evaluation by the Court
Diagnostic and Treatment Center (“CDTC”) in Toledo, Ohio. The trial court
granted this request, and Dr. Thomas Sherman, a psychiatrist and medical director
of the CDTC, evaluated Klose. Dr. Sherman issued a report of this evaluation,
opining that Klose was competent to waive his Miranda rights at the time he was
questioned by Det. Blunk.
{¶12} On October 8, 2009, a suppression hearing was held. Both Dr.
Brams and Dr. Sherman testified and presented their respective opinions. In
addition, Dep. Griffin and Det. Blunk testified about what transpired on December
15, 2008. At the conclusion of the hearing, the trial court took the matter under
advisement, and on October 27, 2009, overruled the motion to suppress.
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{¶13} Klose withdrew his previously tendered pleas of not guilty and
entered pleas of no contest on all eleven counts on February 1, 2009. The trial
court found him guilty of each count and ordered a pre-sentence investigation,
including a pre-sentence evaluation by the CDTC. On March 29, 2010, the court
sentenced Klose to four years in prison on each of Counts 1-6, each to run
concurrently to one another; five years in prison on each of Counts 7 and 8, each
to run concurrently to one another but consecutively to Counts 1-6; and four years
in prison on each of Counts 9-11, each to run concurrently to one another but
consecutively to Counts 1-8, for an aggregate term of thirteen years in prison.
{¶14} Klose now appeals the judgment of the trial court, raising three
assignments of error.
First Assignment of Error
The trial court erred in denying Appellant’s motion to suppress
statements made by the appellant at the time of Appellant’s
arrest.
Second Assignment of Error
Trial court erred in denying Appellant’s motion to suppress
evidence illegally seized from his motor vehicle by the Hancock
County Sheriff’s Department at the time of his arrest, and
statements made after the appellant’s arrest to the Hancock
County Sheriff’s Office.
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Third Assignment of Error
Trial court erred in sentencing the appellant to a term of
thirteen (13) years in the Ohio Department of Rehabilitation and
Correction.
{¶15} For ease of discussion, we elect to address the assignments of error
out of the order in which they appear.
{¶16} In Klose’s second assignment of error, he maintains that the trial
court erred in denying his motion to suppress the evidence obtained as a result of
the stop of Klose. In support of this position, Klose contends that Dep. Griffin did
not have a reasonable articulable suspicion of criminal activity to justify stopping
him.
{¶17} When reviewing a trial court’s ruling on a motion to suppress, the
Supreme Court of Ohio has determined that:
“Appellate review of a motion to suppress presents a mixed
question of law and fact. When considering a motion to
suppress, the trial court assumes the role of trier of fact and is
therefore in the best position to resolve factual questions and
evaluate the credibility of witnesses. State v. Mills (1992), 62
Ohio St.3d 357, 366, 582 N.E.2d 972. Consequently, an appellate
court must accept the trial court’s findings of fact if they are
supported by competent, credible evidence. State v. Fanning
(1982), 1 Ohio St.3d 19, [20], 1 OBR 57, 437 N.E.2d 583.
Accepting these facts as true, the appellate court must then
independently determine, without deference to the conclusion of
the trial court, whether the facts satisfy the applicable legal
standard. State v. McNamara (1997), 124 Ohio App.3d 706, 707
N.E.2d 539.”
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In re: A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, ¶ 50, quoting
State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.
{¶18} The United States Supreme Court has previously held that “[t]he
Fourth Amendment [of the United States Constitution] provides that ‘the right of
the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated * * *.’ This inestimable
right of personal security belongs as much to the citizen on the streets of our cities
as to the homeowner closeted in his study to dispose of his secret affairs.”
(Emphasis added.) Terry v. Ohio (1968), 392 U.S. 1, 8-9, 88 S.Ct. 1868. Similar
protection exists pursuant to Section 14, Article I of the Ohio Constitution. See
State v. Wilson, 3rd Dist. No. 5-07-47, 2008-Ohio-2742, ¶ 16. When evidence is
obtained as a result of an unlawful search and seizure, it must be suppressed. Id.,citing Mapp v. Ohio (1961), 367 U.S. 643, 649, 81 S.Ct. 1684.
{¶19} In Terry, the Supreme Court determined that an officer need not
have probable cause to detain and search an individual. Terry, 392 U.S. at 21.
Rather, a police officer may temporarily detain an individual where he has a
reasonable articulable suspicion that the individual is engaging in criminal
activity. State v. Bobo (1988), 37 Ohio St.3d 177, 179, 524 N.E.2d 489, citing
Terry, supra. Reasonable articulable suspicion exists when there are “‘specific and
articulable facts which, taken together with rational inferences from those facts,
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reasonably warrant the intrusion.’” State v. Stephenson, 3rd Dist. No. 14-04-08,
2004-Ohio-5102, ¶ 16, quoting Bobo, 37 Ohio St.3d at 178, 524 N.E.2d 489. In
forming reasonable articulable suspicion, law enforcement officers may “draw on
their own experience and specialized training to make inferences from and
deductions about the cumulative information available to them that ‘might well
elude an untrained person.’” United States v. Arvizu (2002), 534 U.S. 266, 273,
122 S.Ct. 744, quoting United States v. Cortez (1981), 449 U.S. 411, 417-418, 101
S.Ct. 690. Thus, determining whether the officer’s actions were justified depends
upon the totality of the circumstances, which must “be viewed from the eyes of the
reasonable and prudent police officer on the scene who must react to the events as
they unfold.” State v. Andrews (1991), 57 Ohio St.3d 86, 87, 565 N.E.2d 1271(citations omitted).
{¶20} We believe that the facts support a reasonable articulable suspicion
by Dep. Griffin that Klose was engaged in criminal activity. Dep. Griffin was an
experienced deputy with five and a half years on the Hancock County Sheriff’s
Department and seventeen years in overall law enforcement experience. We must
view the circumstances of the stop through his eyes. He was the “reasonable and
cautious police officer on the scene” who was guided by his own experience and
training. See State v. Freeman (1980), 64 Ohio St.2d 291, 295, 414 N.E.2d 1044.
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{¶21} Dep. Griffin testified that Hancock County had been experiencing a
number of break-ins in homes under construction in newer housing developments.
In fact, he testified that Marion Township, where Deer Landing is located, actually
contracted with the Sheriff’s Department for additional patrols in the township
because of the number of these types of break-ins. He also testified that Deer
Landing was a newer housing development and that he was patrolling it because
of this specific concern. An area’s reputation for criminal activity is an articulable
fact, which is a part of the totality of circumstances surrounding a stop to
investigate suspicious behavior. Bobo, 37 Ohio St.3d at 179, 524 N.E.2d 489.
{¶22} While on patrol in the evening hours of December, he noticed an
isolated, darkened vehicle at the end of an unlit, dead end street where there were
no homes in the immediate vicinity. He then drove towards the vehicle and shined
his spotlight on the vehicle “to see if anybody was in the vehicle or why the
vehicle was there[.]” (Supp. Hrg., 10/8/09, p. 117.) Dep. Griffin saw a man in the
driver’s seat, who started to bend over “and was acting like he was moving back
and forth like he was trying to pull something up[.]” (id. at pp. 117-118.) He also
noticed that the windows were somewhat steamed up and that there was another
person in the back seat. He saw this second person then grab a pair of pants from
the front and pull the pants to the back seat. At this point, he elected to exit his
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patrol car to approach the vehicle but the vehicle began driving away so Dep.
Griffin signaled with his hands and flashlight for the vehicle to stop.
{¶23} This case cannot be resolved on the basis of any one of the facts we
have detailed. However, when taken collectively, those facts indicate that Dep.
Griffin did not violate Klose’s constitutional rights in stopping and investigating
this suspicious activity. As noted by the trial court, “[w]hen added together, this
combined conduct could lead a reasonably prudent person to believe that a break-
in had occurred or was in progress; the parties were engaged in unlawful sexual
activity, or that other potential criminal activity was afoot.” (Journal Entry,
10/27/09, p. 6.)
“The Fourth Amendment does not require a policeman who
lacks the precise level of information necessary for probable
cause to arrest to simply shrug his shoulders and allow a crime
to occur or a criminal to escape. On the contrary, Terry
recognizes that it may be the essence of good police work to
adopt an intermediate response. * * * A brief stop of a suspicious
individual, in order to determine his identity or to maintain the
status quo momentarily while obtaining more information, may
be most reasonable in light of the facts known to the officer at
the time.”
Bobo, 37 Ohio St.3d at 180, 524 N.E.2d 489, quoting Adams v. Williams (1972),
407 U.S. 143, 145-146, 92 S.Ct. 1921. In this case, a brief stop of Klose in order
to maintain the status quo momentarily while obtaining more information was
reasonable, good police work. Furthermore, once Dep. Griffin saw that the rear
seat passenger appeared to be a juvenile whose pants were only pulled up to his
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knees, combined with observing the pornographic magazines beneath the feet of
the adult driver who had been making furtive movements and who attempted to
drive away upon seeing the deputy approach, he was justified in continuing the
stop to ascertain whether a crime had occurred Accordingly, we do not find that
the trial court erred in overruling Klose’s motion to suppress in this regard, and the
second assignment of error is overruled.
{¶24} In his first assignment of error, Klose contends that the trial court
erred in overruling his motion to suppress the statements he made to law
enforcement because he did not knowingly, intelligently, and voluntarily waive his
Miranda rights. In support of his position, Klose asserts that Dr. Brams found that
he lacked the abstract reasoning abilities to affect a knowing, voluntary, and
intelligent waiver of his Miranda rights.
{¶25} The seminal case of Miranda v. Arizona requires that “[a] suspect in
police custody ‘must be warned prior to any questioning that he has the right to
remain silent, that anything he says can be used against him in a court of law, that
he has the right to the presence of an attorney, and that if he cannot afford an
attorney one will be appointed for him prior to any questioning if he so desires.’”
State v. Lather, 110 Ohio St.3d 270, 2006-Ohio-4477, 853 N.E.2d 279, ¶ 6,
quoting Miranda v. Arizona (1966), 384 U.S. 436, 479, 86 S.Ct. 1602. In order for
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a defendant’s waiver of Miranda rights to be valid, the waiver must be knowingly,
intelligently, and voluntarily made. Miranda, 384 U.S. at 444.
{¶26} When a defendant challenges his waiver of these rights, the state
bears the burden of demonstrating, by a preponderance of the evidence, that the
defendant knowingly, intelligently, and voluntarily waived his Miranda rights
based on the totality of the circumstances. State v. Gumm, 73 Ohio St.3d 413,
429, 1995-Ohio-24, 653 N.E.2d 253. “The totality of the circumstances includes
‘the age, mentality and prior criminal experience of the accused; the length,
intensity, and frequency of interrogation; the existence of physical deprivation or
mistreatment; and the existence of threat or inducement.’” State v. Campbell, 90
Ohio St.3d 320, 332, 2000-Ohio-183, 738 N.E.2d 1178, quoting State v. Edwards
(1976), 49 Ohio St.2d 31, 358 N.E.2d 1051, paragraph two of the syllabus.
Absent a showing that the waiver was voluntary, the waiver is invalid and the
defendant’s statements should be suppressed. Miranda, supra.{¶27} Here, the State conceded at the suppression hearing that Klose was
in custody when Det. Blunk questioned him, and the defense did not assert that
Klose was threatened, mistreated, or physically deprived by the officers. Rather,
the primary issue for the trial court to determine was whether Klose’s mental
capabilities were sufficient to make a knowing, intelligent, and voluntary waiver
of his rights. To that end, Klose and the State presented conflicting evidence.
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{¶28} Dr. Brams testified and her report reflected that Klose, who was
forty-nine years old at the time she evaluated him, was born with hydrocephalus, a
condition where excess fluid builds up in the brain. However, she did not know
the extent of the condition, whether it was treated, or the long term effects on
Klose, but she noted that his face was asymmetrical, which would indicate he
suffered some sort of trauma such as hydrocephalus. She spoke with Klose for
several hours, performed various tests on him, spoke with his wife and brother,
and reviewed some of his school records and the police reports on this case. She
determined that his IQ was 82 and that he was not mentally retarded. Nonetheless,
she also opined that he had an overall age equivalent of eight years, three months
in cognitive abilities. In explaining this, Dr. Brams stated that Klose had learning
disabilities but that he wanted to look intelligent so he used a “cloak of
competence,” which meant that he would often act as if he understood something
even if he did not. She further explained that this was brought on by the
relationship with his father, who often compared him to his older brother and was
very tough on Klose because of his disabilities. Dr. Brams testified that she based
this opinion on her discussions with Klose and his family members because she
could not speak with Klose’s father who was deceased. Thus, she opined that in
waiving his Miranda rights, Klose was simply pretending to understand but did not
truly understand what he was doing.
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{¶29} On cross-examination, Dr. Brams acknowledged that Klose
graduated from Findlay High School. She also provided the school records that
she reviewed, which showed that he received average grades in school, but they
did not indicate if he was in any type of special education classes. Dr. Brams also
provided examples of questions she asked Klose in making her determination that
he was a concrete thinker who did not cognitively function as an adult, but none of
these examples involved issues of Miranda or anything similar.
{¶30} Contrary to the opinion of Dr. Brams, Dr. Sherman found that there
was no indication that Klose was “mentally non-functional” when he waived his
Miranda rights. (Supp. Hrg., 10/8/09, State’s Ex. 2.) Dr. Sherman also opined
that Klose did not suffer from any mental disease or defect that would have
prevented him from understanding his Miranda rights. In reaching this
conclusion, Dr. Sherman testified that he reviewed Dr. Brams’ evaluation, spoke
with Klose for one hour, and reviewed the relevant police reports on this matter.
Dr. Sherman testified that Klose was able to answer his questions in great detail
and on point, told Dr. Sherman that he did not feel that was able to give a
voluntary statement to the officers that night because he was scared, and told Dr.
Sherman that he believed if he spoke with the officers then things would “go
easy.” (Supp. Hrg., 10/8/09, pp. 78-79.)
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{¶31} Dr. Sherman also testified that “cloak of competence” was not a
term of art in forensic psychiatry and that he was unfamiliar with the term. He
further stated that Klose had lived independently for a number of years, was able
to drive, was married for eleven years, and was gainfully employed for a number
of years in places that were not sheltered workshops. In speaking with Klose, Dr.
Sherman noted that he did not have to overly simplify his vocabulary in order for
Klose to understand and that Klose’s thinking was well organized.
{¶32} While speaking with Klose, Dr. Sherman gave him a hypothetical
situation involving the robbery of a gas station. This hypothetical included
strengths and weakness of the case, and Klose was asked what he would do if he
represented the accused. Klose was able to provide a defense strategy, including
how to discredit the prosecution’s evidence, and Dr. Sherman found that he was
able to think in the abstract and that nothing in his answers caused Dr. Sherman to
be concerned about Klose’s ability to understand.
{¶33} Although Dr. Sherman did not examine any of Klose’s medical or
school records and did not speak with his family members, he read Dr. Brams’
evaluation, which included this information. Additionally, Dr. Sherman stated that
he did not feel that he needed to do anything more than what he did in his
evaluation because he saw nothing to indicate that Klose was unable to knowingly,
intelligently, and voluntarily waive his Miranda rights. In fact, Dr. Sherman
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testified that he had evaluated many people for competency over the last thirty
years with the CDTC and that if he had “a hint of doubt” about Klose’s mental
ability to waive his rights, he would have sought additional information. (id. at p.
106.) However, in this case, Dr. Sherman stated “in no uncertain terms” that
Klose was competent to waive his Miranda rights and that “this was not even a
close call.” (id. at p. 102.)
{¶34} In addition to the testimony of both Dr. Brams and Dr. Sherman,
Dep. Griffin and Det. Blunk testified about their interactions with Klose on the
night of his arrest. Both officers testified that Klose read the Miranda rights
waiver form aloud and that Klose did not have any difficulty in reading the form
and that they noticed nothing that would have indicated to them that Klose did not
understand his rights. Det. Blunk also testified that Klose did not appear to be
unable to understand the words that the detective was using or the questions he
was asking or otherwise give any indication that he “wasn’t with it[.]” (id. at. p.
170.) In addition, Det. Blunk stated that Klose communicated very well with him
and although he noticed Klose had some physical deformities, he did not notice
anything that indicated that Klose “had some type of mental disability or * * *
mental disorder.” (id. at. p. 184.) After speaking with Det. Blunk, Klose provided
a written statement regarding his sexual activity with his nephew, which he signed.
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This statement and the Miranda rights waiver form at issue were submitted into
evidence at the hearing. (id. at p. 188, State’s Ex. 4, 5.)
{¶35} Based on this evidence, the trial court found that although Dr.
Brams’ testimony was helpful, the court did not find it sufficiently persuasive to
support a conclusion that Klose did not knowingly and intelligently waive his
Miranda rights. Rather, the court found that Dr. Brams’ impression of Klose was
belied by the fact that Klose was able to have long-term employment, was
married, and was able to operate a motor vehicle. The court also relied upon Dr.
Sherman’s testimony that Klose was “conversant with legal terms and understood
the consequences of certain actions.” (Journal Entry, 10/27/09, p. 9.) Thus, the
court concluded that based upon a totality of the circumstances, the State satisfied
its burden of demonstrating that Klose was “not so impaired so as to be incapable
of understanding and appreciating the legal rights he possessed at the time he was
advised of them by Detective Blunk.” (id.)
{¶36} In light of all of the evidence before it, we find that the trial court’s
decision was supported by an ample amount of competent, credible evidence.
Therefore, we do not find that the trial court erred in concluding that Klose
knowingly, voluntarily, and intelligently waived his Miranda rights and
consequently overruling Klose’s motion to suppress in this regard. The second
assignment of error is, accordingly, overruled.
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{¶37} Klose asserts in his third assignment of error that the trial court erred
in sentencing him to a term of thirteen years in prison. In support of this assertion,
Klose points to the fact that he had no prior criminal history and to the pre-
sentence evaluation performed by the CDTC, which indicated that Klose was a
low risk for recidivism.
{¶38} The standard of review for sentences was set forth in State v. Kalish,
120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. In Kalish, four panel
members noted that R.C. 2953.08(G) requires an appellate court to review a
defendant’s sentence, when challenged, to ascertain whether it is clearly and
convincingly contrary to law.2 Clear and convincing evidence is “[t]he measure or
degree of proof that will produce in the mind of the trier of fact a firm belief or
conviction as to the allegations sought to be established. It is intermediate, being
more than a mere preponderance, but not to the extent of such certainty as required
beyond a reasonable doubt as in criminal cases. It does not mean clear and
unequivocal.” In re Estate of Haynes (1986), 25 Ohio St.3d 101, 103-04, 495
N.E.2d 23.
{¶39} Additionally, if the appeal is based upon the application of the
factors enumerated in R.C. 2929.12, four panel members in Kalish would require a
2
Justices Pfeifer, Lundberg Stratton, Lanzinger, and Judge Willamowski, sitting by assignment, all
reached this conclusion.
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second step in the sentencing review. This step requires determining whether the
trial court abused its discretion in applying these factors, as specifically set forth in
R.C 2929.12.3 An abuse of discretion is more than a mere error; it implies that
the court’s attitude is unreasonable, arbitrary, or unconscionable. Blakemore v.
Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.
{¶40} The substance of Klose’s assignment of error is that the court did not
properly apply the factors set forth in R.C. 2929.12. More specifically, Klose
relies upon the fact that he had no prior criminal conviction and that the evaluation
he underwent to determine his likelihood of recidivism indicated that he was at a
low risk for recidivism. Because Klose’s appeal involves R.C. 2929.12, we must
review his sentences utilizing the two-step process outlined in Kalish.
{¶41} As to the first step, in State v. Foster, the Supreme Court of Ohio
stated, “[t]rial courts [now] 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. Although the trial court is given full discretion in
sentencing pursuant to Foster, the trial court must consider the overriding
3
Justices O’Connor, Moyer, O'Donnell, and Judge Willamowski, sitting by assignment, concurred in this
position, although the first three would use both standards of review in all cases.
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purposes of felony sentencing, which are to protect the public from future crimes
by the offender and to punish the offender. R.C. 2929.11(A); State v. Scott, 3rd
Dist. No. 6-07-17, 2008-Ohio-86, ¶ 49, citing State v. Foust, 3rd Dist. No. 3-07-11,
2007-Ohio-5767, ¶ 27. Additionally, “[a] sentence imposed for a felony shall be
reasonably calculated to achieve the two overriding purposes of felony sentencing
* * * commensurate with and not demeaning to the seriousness of the offender’s
conduct and its impact upon the victim, and consistent with sentences imposed for
similar crimes committed by similar offenders.” R.C. 2929.11(B).
{¶42} Here, each of the eleven counts was punishable by one to five years
in prison. See R.C. 2907.04(A), 2929.14(A)(3). As previously noted, Klose was
sentenced to four years on each of Counts 1-6, each to run concurrently to one
another; five years on each of Counts 7 and 8, each to run concurrently to one
another but consecutively to Counts 1-6; and four years on each of Counts 9-11,
each to run concurrently to one another but consecutively to Counts 1-8, for an
aggregate term of thirteen years in prison. Each of these sentences was within the
permissible statutory range. Further, a review of the record reveals that the trial
court considered the purposes and principles of sentencing, as well as the R.C.
2929.12 factors. Thus, we do not find that this sentence was clearly and
convincingly contrary to law.
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{¶43} As to the second step, the trial court outlined the serious nature of
the offenses, including the relationship between Klose and his victim and how he
groomed his nephew for these offenses by providing him with pornographic
magazines, utilizing his inquisitiveness and other aspects of his age and maturity
level, and by then driving him to desolate areas of the county to engage in sexual
activity. The court noted that this was not “a lark”; it was planned, which
indicated that Klose was a pedophile, a conclusion also reached in the CDTC
evaluation. (Sent. Hrg., 3/29/10, p. 19; Joint Ex. A.)
{¶44} The court also specifically addressed the likelihood of recidivism. In
so doing, the trial court found that, despite the risk assessment contained in the
CDTC evaluation, there was a potential for recidivism because Klose, a fifty-year-
old pedophile, chose to ignore the boundaries of the law and society to fulfill his
“unnatural and unlawful instincts” and engage in “a long standing pattern of
unlawful conduct with a member of his own family.” (id. at p. 21.) The trial court
further stated that it was mindful of the possibility of judicial release if it gave a
sentence of less than ten years. However, the trial court noted that this was not a
case of “one simple offense” but rather it involved eleven separate counts of
serious conduct occurring over a period of time and that the sentence needed to
adequately punish Klose for his conduct, protect the public, and be proportionate
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to the harm caused. (id. at pp. 23-24, 26.) The court then proceeded to sentence
Klose as previously detailed.
{¶45} In light of the evidence before the court, we do not find that the trial
court was arbitrary, unreasonable, or capricious in sentencing Klose on each count
in the manner that it chose. A risk assessment for recidivism is but one factor to
consider in determining an appropriate sentence. Here, the trial court clearly
considered the purposes and principles of sentencing, the seriousness of the
conduct, and Klose’s likelihood of recidivism, and made a well reasoned decision
based upon the evidence before it. Therefore, the third assignment of error is
overruled.
{¶46} Having found no error prejudicial to Klose, the judgment of the
Court of Common Pleas of Hancock County is affirmed.
Judgment Affirmed
ROGERS and PRESTON, J.J., concur in Judgment Only.
/jlr
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