State v. Summers , 2014 Ohio 4538 ( 2014 )

[Cite as State v. Summers , 2014-Ohio-4538.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MERCER COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 10-13-22
v.
CHRISTOPHER A. SUMMERS, OPINION
DEFENDANT-APPELLANT.
Appeal from Mercer County Common Pleas Court
Trial Court No. 13 CRM 30
Judgment Affirmed
Date of Decision: October 14, 2014
APPEARANCES:
J. Allen Wilmes for Appellant
Matthew K. Fox for Appellee
Case No. 10-13-22
SHAW, J.
{¶1} Defendant-appellant Christopher A. Summers (“Summers”) appeals
the October 22, 2013 judgment of the Mercer County Common Pleas Court
sentencing Summers to an aggregate prison term of 20 years after Summers pled
guilty to eight counts of Sexual Battery in violation of R.C. 2907.03(A)(7), all
felonies of the third degree.
{¶2} The facts relevant to this appeal are as follows. On February 21, 2013
Summers was indicted in a 47 count indictment alleging various counts of Rape,
Sexual Battery, Felonious Assault, Gross Sexual Imposition and Attempted Sexual
Battery against the same victim. Counts 1 and 11 of the indictment alleged that
Summers committed Rape in violation of R.C. 2907.02(A)(2), both felonies of the
first degree. Counts 2, 4, 6, 9, 12, 14, 16, 18, 20, 22, 24, 26, 28, 30, 32, 35, 37, 39,
41, 43 and 45 alleged that Summers committed Sexual Battery in violation of R.C.
2907.03(A)(1), all felonies of the third degree. Counts 3, 5, 7, 10, 13, 15, 17, 19,
21, 23, 25, 27, 29, 31, 33, 36, 38, 40, 42, 44 alleged that Summers committed
Sexual Battery in violation of R.C. 2907.03(A)(7), all felonies of the third degree.
Counts 8 and 34 alleged that Summers committed Felonious Assault in violation
of R.C. 2903.11(A)(2), both felonies of the second degree. Count 46 alleged that
Summers committed Attempted Sexual Battery in violation of R.C. 2923.02(A)
and R.C. 2907.03(A)(1), a felony of the fourth degree. Count 47 alleged that
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Summers committed Gross Sexual Imposition in violation of R.C. 2907.05(A)(1),
a felony of the fourth degree.
{¶3} On February 27, 2013 Summers was arraigned and pled not guilty to
the charges against him. (Doc. 14).
{¶4} On June 17, 2013, the State filed a Bill of Particulars further clarifying
the charges against Summers. (Doc. 153). According to the Bill of Particulars the
crimes were all perpetrated against the same victim who was a high school student
in the accounting class Summers taught, and played for Summers on the girls JV
basketball team. The crimes alleged spanned from approximately June of 2010
through October of 2012. (Id.)
{¶5} On August 5, 2013, the State filed a nolle prosequi as to Counts 1 and
11, Rape, electing not to proceed with those charges. (Doc. 265).
{¶6} The case subsequently proceeded to a jury trial on the remaining
counts against Summers. At trial, the victim testified that she first met Summers
while she was a high school student at Fort Recovery.1 (Tr. at 6). Summers was
the victim’s study hall monitor her freshman year of high school, and he had
taught the victim’s brothers while they were in school. During the victim’s
sophomore year of high school, Summers taught her accounting class and he was
1
The record indicates that the trial was in its third day when Summers elected to plead guilty to eight of the
Sexual Battery counts against him. The only portion of the trial transcript reproduced on appeal was the
testimony of the victim from the third day of trial.
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her JV basketball coach. Summers was also a track coach, and the victim ran
track.
{¶7} The victim testified that her sophomore year she began occasionally
babysitting Summers’ kids while Summers and his wife went out. She also
testified that she tore her ACL her sophomore year during basketball season, and
wanting to continue helping out with the team, she assisted Summers with
scouting reports. The victim testified that it was around this time that Summers
began to send her text messages and began asking her to come down to see him
during study hall. (Tr. at 12).
{¶8} The victim testified that Summers started “meddling” in the personal
lives of the players on his team, including hers. (Tr. at 13). She testified that
Summers would pull her into the “show choir room” at school to talk and
threatened detentions if she would not meet him. (Id.) The victim testified that
Summers began sending her text messages on the weekends asking her if she was
“behaving.” (Tr. at 13). The victim testified that Summers would message her
about girls in practice and communicate with her about her friends. She testified
that Summers was “nosy.” (Tr. at 16).
{¶9} The victim testified that in the summer of 2010, a few weeks after
school concluded her sophomore year, Summers and his wife asked her to go on a
trip to the Outer Banks in North Carolina with them to babysit their children. (Tr.
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at 18). The victim testified that despite her reservations regarding Summers, she
liked his children and had never seen the ocean so she agreed to go along. (Id.)
{¶10} The victim testified that there were multiple incidents on the trip that
made her feel uncomfortable but other than a hug nothing physically happened on
the trip. (Tr. at 22). The victim testified that Summers sent her a message after
the trip apologizing for his demeanor. (Id.)
{¶11} The victim testified that later that same summer she went to a
basketball camp that Summers also attended. The victim testified that on one
evening many of the members of the team were in her room, and that after they
left, Summers lingered asking her about her issues with her friends. (Tr. at 24).
{¶12} The victim testified that on June 28, 2010, shortly after the basketball
camp was over, she was contacted by Summers’ wife to babysit the children for
the day. (Tr. at 26). The victim testified that Summers came home while she was
still babysitting and told her that he wanted to pay her and that he had to show her
something. (Tr. at 26). The victim testified that she followed Summers to his
bedroom where Summers shoved her onto the bed. (Tr. at 26). The victim
testified that Summers had his hands locked on her arms and that she told
Summers to get off of her. (Tr. at 27). The victim testified that Summers told her
that he loved her and that she was his “little puzzle piece.” (Id.)
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{¶13} The victim testified that Summers told her he wanted to show her he
loved her so he took the victim’s clothes off and digitally penetrated her. (Tr. at
27). The victim testified that she “was telling him [she] didn’t want it and for him
to get off [her] and let [her] go.” (Tr. at 27). The victim testified that Summers
then put a condom on and had sexual intercourse with her. (Tr. at 29). The victim
testified that afterward Summers instructed her not to tell anyone because
Summers was in “control and that he could do anything he wanted to [her], and
[she] had no idea what kind of man he was and what he was capable of doing to
[her] and that he would go to great lengths to make sure that [she] never told.”
(Tr. at 29-30).
{¶14} The victim testified that Summers then waffled back and forth
between telling her that he was “so glad that he got to take [her] virginity and that
it meant everything to him, that [she] was so special” to “telling [her] that he could
do anything he wanted to [her] and that he made sure that he had the control.” (Tr.
at 30). After the incident, Summers instructed the victim to get her clothes and go.
{¶15} The victim testified that Summers sent her text messages on her way
home after the incident further instructing her not to tell anyone. She testified that
she was too scared and embarrassed to tell anyone. She testified that she also felt
responsible because she had a feeling she should not have gone over to babysit but
went over anyway. (Tr. at 31-32).
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{¶16} The victim testified that in the days following the incident Summers
continued messaging her saying that he wanted to see her and she avoided him as
much as she could. (Tr. at 33). The victim testified that she made every excuse
she could to put off meeting Summers, but that Summers kept reminding her that
she “was under his control and that he had the power and that he was capable of
doing anything to keep [her] quiet.” (Tr. at 34). The victim testified that at one
point after dinner on July 3, 2010, she received 10 messages in a row from
Summers, and that Summers then called her and said that she had to “meet him or
* * * pay the consequences.” (Tr. at 34).
{¶17} The victim testified that she met Summers at the “Saint Henry * * *
ball diamond” in the first-base dugout following a wedding she was attending.
(Tr. at 35). The victim testified that Summers began “kissing [her] and telling
[her] how bad he wanted it.” (Tr. at 35). The victim testified that Summers pulled
her dress up and “went in” then made her perform oral sex on him. (Tr. at 36).
The victim testified that after the incident Summers called her to remind her not to
tell anyone. (Tr. at 36).
{¶18} The victim testified to similar incidents that happened where
Summers would tell her how “he needed it” and that “[h]e couldn’t keep it under
control anymore[.]” The victim testified that Summers made threats to get her to
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meet him and that she met him at her sister’s house where they had sexual
intercourse. (Tr. at 37-38).
{¶19} The victim testified that near the end of July in the summer of 2010
she began dating another high school student and Summers was angry when he
found out about it. (Tr. at 40-41). The victim testified that when Summers
learned about the victim’s boyfriend he told her that she had to meet him so they
met out at Dull Road in Mercer County. (Tr. at 41). The victim testified that
Summers was screaming at her and telling her how she should “have clearly
known that [she] was his[.]” (Id.) The victim testified that Summers had a knife
with him, and that he was “rubbing it up and down [her] leg and telling [her] that
[she] needed a reminder of who [she] belonged to.” (Tr. at 41). The victim
testified that Summers then took the knife and carved his first initial, “C,” in the
inside of her right ankle. (Tr. at 42). The victim testified that she begged
Summers not to before he did it, but he did anyway and then made her clean up the
blood. (Tr. at 42).
{¶20} The victim testified that Summers took her phone while on Dull
Road and sent a message from her phone to his saying, “I won’t cut myself again,”
making it look like she had cut herself. (Tr. at 43). The victim testified that
before she left that night the two had sexual intercourse again. (Tr. at 43). The
victim testified that she did not tell anyone about the incident, stating that “at that
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point he had raped [her] and had cut [her], and [she] knew he was capable of just
about anything if he was willing to do that.” (Tr. at 44).
{¶21} The victim testified to another incident where her parents traveled
out of town and Summers learned of it and came to her house. (Tr. at 45-46). She
testified that Summers penetrated her anally and then forced her to orally pleasure
him afterward. (Tr. at 46-47). The victim testified that the incident made her sick,
that it “was hard to breathe” and “hard to walk.” (Tr. at 47).
{¶22} The victim testified that incidents then started happening during
school when basketball started her junior year. According to the victim multiple
incidents occurred where Summers digitally penetrated her on the bus under a
blanket to and from games. (Tr. at 48). The victim also testified that during
practice Summers called her into the locker room to yell at her for lying to him
about where she had been over the weekend, and that Summers initiated sexual
intercourse with her in the locker room. (Tr. at 50). The victim testified that
Summers told her that “we wouldn’t want you to hurt yourself again and cut
yourself again, would we?” (Tr. at 51). The victim testified that Summers
occasionally would have sex with her after basketball practices during her junior
year as well, that she felt forced to do so, and that it happened five to ten times.
(Tr. at 52).
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{¶23} The victim testified to an incident in January of 2011 where
Summers found out she was still dating her boyfriend and Summers got angry.
(Tr. at 53). Summers told the victim that she “needed a reminder that [she]
belonged to him.” (Id.) The victim testified that Summers then cut into her ankle
again, and retraced the “C” he had cut into her before. (Id.) The victim testified
that at the date of trial she still had a scar from Summers cutting her.
{¶24} The victim then testified that similar sexual incidents continued to
occur through her junior year of high school into her senior year and through high
school graduation in 2012. (Tr. at 58). She testified that the summer after
graduation Summers’ wife found out and started threatening her. (Id.) The victim
testified that despite Summers’ wife finding out, Summers would continue to
message her, telling her that he needed to meet her, expressing that he was going
to kill himself. (Tr. at 60). The victim testified that Summers had said before that
he had contemplated suicide and that if he did kill himself he was going to take the
victim with him. (Tr. at 60). The victim also testified that other times Summers
said he would leave a suicide note “making sure that [she] was blamed for it.” (Tr.
at 60). The victim testified that she continued to get phone calls and threats from
both Summers and his wife. (Tr. at 61).
{¶25} The victim testified that the sexual contact continued to occur when
she was at college until October of 2012. She testified that Summers told her he
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was going to “ruin” her, and do “whatever it took.” (Tr. at 64). The victim
testified that Summers sent her pictures of her boyfriend’s house, and told the
victim that he was going to hurt a member of her family. (Tr. at 64).
{¶26} The victim testified that she was having trouble sleeping and eating,
so she finally told her mother about the incidents. (Tr. at 65). The victim testified
that afterward she went with her mother and spoke to the police.
{¶27} Before the victim’s direct-examination concluded on the third day of
trial, the court took a lunch recess. During the recess, the parties negotiated a plea
whereby Summers would plead guilty to 8 counts of Sexual Battery in violation of
R.C. 2907.03(A)(7), all felonies of the third degree, in exchange for the State
dismissing the remaining charges.2
{¶28} When the court reconvened later that day on August 7, 2013,
Summers entered the written negotiated plea and the court conducted a Criminal
Rule 11 colloquy with Summers ensuring that his pleas were knowingly,
intelligently and voluntarily given. After Summers entered his guilty pleas, the
court accepted them and found Summers guilty, setting sentencing for a later date.
An entry reflecting this was filed August 26, 2013. (Doc. 285).
{¶29} On October 10, 2013 a sentencing hearing was held. At the hearing,
one of the victim’s former friends gave a statement indicating that she felt
2
The specific counts of the indictment Summers pled guilty to were counts 3, 5, 7, 10, 13, 15, 36, and 44.
As part of the agreement the State agreed that no further charges would be filed in the matter. (Doc. 279).
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Summers was a good person and professional and that she felt the victim was a
willing participant. One of Summers’ friends also gave a statement that she felt
Summers was remorseful and would not make the same mistake again. She also
stated that she felt the victim was a willing participant and only made the
accusations to not disappoint her parents. Summers’ counselor also made a
statement indicating that Summers had taken responsibility for his actions.
Summers’ wife made a statement pleading for mercy from the court, stating that
Summers had changed. Summers himself then made a statement on his own
behalf, accepting fault for the “inappropriate relationship.” Summers’ attorney
then made an argument on his behalf.
{¶30} The victim’s parents then both made statements before the court,
requesting that Summers be given maximum consecutive sentences totaling 40
years. The victim’s sister gave a statement making a similar request. Finally, the
victim made a statement, stating that she had been hurt “physically, mentally, and
emotionally” by Summers and that she would “be forever changed by what Mr.
Summers did to [her].” (Tr. at 45). The victim continued, stating that when she
looked back on her high school years she “remember[ed] the sleepless nights of
crying and nightmares, the physical hurt and injuries, the emotional abuse, lack of
appetite, and the ongoing hell [Summers] put [her] through.” (Tr. at 45). The
victim stated that “I remember having to isolate myself from my family and
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friends. I felt like a zombie. I was not living life. I was living hell on earth.” (Tr.
at 45).
{¶31} After hearing the arguments at sentencing, the court ultimately
ordered Summers to serve 30 months in prison on each of the eight counts, to be
served consecutively for an aggregate prison term of 20 years. A sentencing entry
reflecting this was filed October 22, 2013. (Doc. 309). It is from this judgment
that Summers appeals, asserting the following assignments of error for our review.
ASSIGNMENT OF ERROR 1
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR
BY IMPOSING CONSECUTIVE [SENTENCES] ON
APPELLANT WHICH SENTENCE WAS AN ABUSE OF
DISCRETION AND WAS [IN] VIOLATION OF THE
PURPOSES AND PRINCIPLES OF SENTENCING.
ASSIGNMENT OF ERROR 2
CONSECUTIVE SENTENCES CUMULATING [sic] IN A
TERM OF TWENTY YEARS WAS NOT CONSISTENT
WITH NOR PROPORTIONATE TO SENTENCES IMPOSED
IN SIMILAR CASES FOR SIMILAR OFFENDERS.
ASSIGNMENT OF ERROR 3
OHIO SEXUAL BATTERY STATUTE 2907 AS APPLIED TO
SCHOOL TEACHERS IS UNCONSTITUTIONAL AND
VIOLATIVE OF THE EQUAL PROTECTION CLAUSE OF
THE 14TH AMENDMENT.
First Assignment of Error
{¶32} In Summers’ first assignment of error, he argues that the trial court
abused its discretion by imposing consecutive sentences. Specifically, Summers
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contends that the trial court’s findings do not support consecutive sentences in this
case.
{¶33} In order to impose consecutive sentences in this case the trial court
was required to make certain specific findings on the record, pursuant to R.C.
2929.14(C)(4). State v. Peddicord, 3d Dist. Henry No. 7-13-12, 2014-Ohio-2849,
¶ 7, citing State v. Hites, 3d Dist. Hardin No. 6-11-07, 2012-Ohio-1892, ¶ 11.
While the trial court is required to make the specific findings, it is not required to
list its reasoning for making the findings. State v. Stairhime, 3d Dist. Defiance
No. 4-13-06, 2014-Ohio-1791, ¶ 51; State v. Hill, 3d Dist. No. 7–12–11, 2013-
Ohio-3873, ¶ 22. “Furthermore, the sentencing court is not required to recite any
‘magic’ or ‘talismanic’ words when imposing consecutive sentences.” State v.
Bever, 4th Dist. Washington No. 13CA21, 2014–Ohio–600, ¶ 17, citing State v.
Clay, 4th Dist. Lawrence No. 11CA23, 2013–Ohio–4649, ¶ 64. However, it must
be clear from the record that the sentencing court actually made the required
statutory findings. State v. Alexander, 1st Dist. Hamilton Nos. C-110828, C-
110829, 2012-Ohio-3349, ¶ 16. A failure to make the findings required by R.C.
2929.14(C)(4) renders a consecutive sentence contrary to law. State v. Stamper,
12th Dist. Butler No. CA2012-08-166, 2013-Ohio-5669, ¶ 23.
{¶34} With respect to the consecutive sentence issues raised in this case,
R.C. 2929.14(C)(4) states,
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(4) 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:
***
(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.
***
{¶35} In this case, with regard to consecutive sentences, the trial court
made the following findings at the sentencing hearing.
The court will impose those sentences to be consecutive in
nature, finding that consecutive sentences are necessary to
protect the public from future crimes by this offender and that
they are not disproportionate to the seriousness of this conduct
and the danger he poses to the public.
Further, that these multiple offenses were committed as part of a
course of conduct and that the harm caused by these multiple
offenses so committed is so great and unusual that no single
prison term * * * could adequately reflect the seriousness of this
conduct that brought about his conviction for these offenses.
(Oct. 10, 2013 Tr. at 58). The same language was also used in the trial court’s
judgment entry. (Doc. 309).
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{¶36} The language used by the trial court at the sentencing hearing and in
its judgment entry clearly mirrors and satisfies the findings required by R.C.
2929.14(C)(4) to impose consecutive sentences. Thus we cannot find under the
facts and circumstances in this case that the trial court’s imposition of consecutive
sentences was improper.
{¶37} Despite the trial court’s clear findings, Summers contends that the
trial court’s findings were not supported in the record. However, the trial court is
not required to support its findings for consecutive sentences, merely to make the
required findings. State v. Stairhime, 3d Dist. Defiance No. 4-13-06, 2014-Ohio-
1791, ¶ 51. Nevertheless, in this case the trial court did make extensive findings
both at the sentencing hearing and in its judgment entry to support its decision to
impose greater than minimum sentences and consecutive sentences. After stating
that it had considered all of the appropriate statutory criteria, the testimony from
trial, the letters and pre-sentencing reports and the statements at the sentencing
hearing, the trial court made the following findings.
Those sentencing factors for the record and for the entry from
today’s proceedings so that the record is clear should include
that the mental injury suffered by the victim in this case due to
the offender’s conduct was exacerbated because of her age, and
she has in fact suffered serious psychological harm. Again, the
defendant’s position of trust in the community as a teacher and
coach was related to the offense and that position and his
position as a teacher and coach obligated him to prevent such
criminal offenses and to bring others who might commit that
kind of offense to justice.
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Further, that profession of teacher and coach was used to
facilitate this offense and brought about his relationship with
the victim that did in fact facilitate the offense. * * *
* * * [T]he court notes that [Summers’] motivation in these
offenses were for his own personal feelings of seeking to be
accepted and loved and cared for and feel validated, and he
took advantage of his position as teacher and coach in his
relationship with the victim in facilitating these offenses over an
extended period of time.
As he acknowledged in his statement, there were numerous
times going all the way back to the beginning of this
relationship that resulted in these offenses even when viewed
from the perspective of the defendant, as related to the court,
when he could have used that position to teach and guide and
put the interests of the student first, and he failed to do so, and
instead did what he felt he wanted to do to satisfy his own
needs.
(Oct. 10, 2013 Tr. at 55-57).
{¶38} The preceding statements make clear that the trial court made
findings to support its sentencing decision beyond those required by the statute. In
sum, Summers’ arguments that the trial court did not weigh certain sentencing
aspects in his favor are not well-taken as they are 1) not required, and 2) were
made in any event. As the trial court made the required statutory findings,
Summers’ first assignment of error is overruled.
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Second Assignment of Error
{¶39} In Summers’ second assignment of error, he argues that his aggregate
20 year prison term was not consistent with, nor proportionate to, sentences
imposed in similar cases for similar offenders.
{¶40} “A defendant alleging disproportionality in felony sentencing has the
burden of producing evidence to ‘indicate that his sentence is directly
disproportionate to sentences given to other offenders with similar records who
have committed these offenses * * *.’” State v. Ewert, 5th Dist. Muskingum No.
CT2012-0002, 2012-Ohio-2671, ¶ 33, quoting State v. Breeden, 8th Dist.
Cuyahoga No. 84663, 2005-Ohio-510, ¶ 81. If a defendant fails to argue to the
trial court that his sentence is not consistent with or proportionate to sentences
imposed for similar crimes committed by similar offenders, then the defendant
waives that issue for appeal. State v. Norman, 3rd Dist. Seneca No. 13-13-50,
2014-Ohio-3010, ¶ 17 citing Ewert at ¶ 31 (additional citations omitted).
{¶41} At the outset, we would note that Summers did not present this issue
to the trial court, and therefore waived it for purposes of appeal. Nevertheless,
even disregarding the waiver, Summers has not established that the trial court’s
sentence was disproportionate in this case. Summers was ordered to serve 30
months in prison on each of the eight sexual battery charges he pled guilty to,
which was half of the maximum possible 60 month prison sentence for each
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conviction. As illustrated in the previous assignment of error, the trial court made
findings to support the imposition of its sentence and specifically stated it had
considered the requisite sentencing statutes.
{¶42} In addition to the trial court’s findings, we would note the testimony
of the victim presented at trial, which indicated that for a period of over two years
Summers compelled the victim, who was his student, to repeatedly engage in
sexual acts through constant threats. The testimony indicated that Summers went
so far as to use a knife to carve his initial into the victim more than once so that
she would be reminded “she was his.” The victim also testified that Summers
continually threatened her safety, the safety of her boyfriend and her family, and
that Summers threatened to harm himself and blame the victim for it in order to
compel her to engage in the sexual relationship.
{¶43} In arguing that his sentence was disproportionate, Summers relies
heavily on State v. Parker, 193 Ohio App.3d 506, 2d Dist. No. 10CA0074, 2011-
Ohio-1418.3 In Parker, the Second District Court of Appeals modified a
defendant’s sentence in a Sexual Battery case. In that case the court found that
where the defendant was a first time offender and had only a very brief
relationship with a student that did not involve any compulsion, a fifteen year
prison sentence was excessive, especially since the trial court seemed to base its
3
Summers also cites various other trial court cases that are not binding on this court and provide little
persuasive authority for our appellate review of this matter.
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sentence on a desire to give the defendant a lengthy sentence to prevent him from
having a relationship with the victim. State v. Cameron, 2nd Dist. No. 2012-CA-
86, 2013-Ohio-4397, ¶¶ 16-17 (analyzing and distinguishing Parker).
{¶44} The case before us is clearly different than Parker for a wide variety
of reasons. In Parker, the defendant and the victim only met twice and no sexual
intercourse occurred, rather merely digital penetration. Here, sexual intercourse
occurred frequently seemingly whenever desired by Summers in addition to other
sexual acts desired by Summers.
{¶45} In Parker there was no indication of force or compulsion. In fact, the
victim in Parker believed that she was “in love” with the defendant. In the case
before us the victim’s testimony indicated severe threats from Summers, infliction
of physical injury with a knife, and a heavy degree of compulsion to get the victim
to engage in the sexual acts.
{¶46} Additionally, in Parker the defendant was charged with and pled
guilty to four counts of Sexual Battery, which all occurred in a matter of weeks,
whereas here Summers pled guilty to eight counts of Sexual Battery and the
crimes spanned over two years.
{¶47} Finally, in Parker there was a clear indication that the prison term
was set primarily to get a desired future result, namely to prevent any possible
relationship between the defendant and the victim. There is no such indication
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from the record before us that the trial court had a specific goal and created a
“sentencing package” to achieve that goal. Thus Parker is clearly distinguishable
from the case before us.
{¶48} Accordingly, based on all the facts and circumstances of this case,
even if Summers had not waived this claim, we cannot find that the trial court’s
sentence was disproportionate as it was supported in the record and Summers has
not met his burden establishing that the sentence was disproportionate. Therefore
Summers’ second assignment of error is overruled.
Third Assignment of Error
{¶49} In Summers’ third assignment of error, he argues that the Sexual
Battery statute as applied to school teachers, R.C. 2907.03(A)(7), is
unconstitutional.
{¶50} Initially we would note that Summers failed to make the argument
that R.C. 2907.03(A)(7) was unconstitutional at the trial court level. The “[f]ailure
to raise at the trial court level the issue of the constitutionality of a statute or its
application, which is apparent at the time of trial, constitutes a waiver of such
issue and a deviation from this state's orderly procedure, and therefore need not be
heard for the first time on appeal.” State v. Awan, 22 Ohio St.3d 120 (1986),
syllabus. Thus Summers has waived this argument for this appeal.4
4
At oral argument Summers also seemed to concede this argument.
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Case No. 10-13-22
{¶51} Nevertheless, this exact challenge was previously addressed by the
Ninth District Court of Appeals in State v. Shipley, 9th Dist. Lorain No.
03CA008275, 2004-Ohio-434, ¶¶ 80-81. In Shipley, the Ninth District conducted
the following analysis.
R.C. 2907.03(A)(7) specifically penalizes teachers,
administrators, coaches and other individuals in a position of
authority with a public school for an act for which other
individuals, not encompassed within another part of the same
statute, would not be penalized. See R.C. 2907.03 and 2907.04.
The legislature explained in enacting the statute that it intended
to protect individuals in a variety of situations where another
might take unconscionable advantage of that individual. See
1974 Committee Comment to R.C. 2907.03(A)(7). In 1994, the
legislature amended the statute to include 2907.03(A)(7) in
response to a case which held that teachers did not fall under
any of the classifications in the prior statute. See State v. Noggle,
67 Ohio St.3d 31, 1993-Ohio-189.
In this case, R.C. 2907.03(A)(7) is rationally related to its
intended purpose of preventing teachers from taking
unconscionable advantage of students by using their undue
influence over the students in order to pursue sexual
relationships. Defendant has failed to show that the statute bears
no rational relationship to a legitimate government interest.
Shipley, ¶¶ 80-81.
{¶52} Thus even if Summers’ argument was not waived, we concur with
the Ninth District’s assessment in Shipley as there appears to be a clear rational
basis for the statute. Summers has in no way demonstrated that the strong
presumption of constitutionality afforded to statutes has been overcome in this
case. Accordingly, Summers’ third assignment of error is overruled.
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Case No. 10-13-22
{¶53} For the foregoing reasons, Summers’ assignments of error are
overruled and the judgment of the Mercer County Common Pleas Court is
affirmed.
Judgment Affirmed
WILLAMOWSKI, P.J. and PRESTON, J., concur.
/jlr
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