State v. Glenn ( 2021 )

[Cite as State v. Glenn, 2021-Ohio-264.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 9-19-64
v.
SALENA GLENN,
OPINION
DEFENDANT-APPELLANT.
Appeal from Marion County Common Pleas Court
Trial Court No. 19-CR-0122
Judgment Affirmed in Part, Reversed in Part and Cause Remanded
Date of Decision: February 1, 2021
APPEARANCES:
W. Joseph Edwards for Appellant
Nathan R. Heiser for Appellee
Case No. 9-19-64
PRESTON, J.
{¶1} Defendant-appellant, Salena N. Glenn (“Glenn”), appeals the
September 17, 2019 judgment of sentence of the Marion County Court of Common
Pleas. For the reasons that follow, we affirm in part and reverse in part.
{¶2} On March 21, 2019, agents of a multi-jurisdictional drug task force
conducted a search of a residence at 223 West Columbia Street, Marion, Ohio (“223
West Columbia”) pursuant to a search warrant. Inside the residence, law
enforcement officers located drugs, and Illya Green (“Green”) and Kevin Swift
(“Swift”) were arrested. Outside the residence, law enforcement officers heard a
noise and located Glenn attempting to leave the residence in her vehicle. During a
subsequent search of Glenn’s vehicle, law enforcement officers located substances
which were later determined to be cocaine and a mixture of fentanyl and heroin.
{¶3} On April 4, 2019, the Marion County Grand Jury issued a joint
indictment charging Glenn, Green, and Swift with a variety of offenses. (Doc. No.
2). Specifically, the Marion County Grand Jury indicted Glenn on six counts:
Count One of trafficking in cocaine in violation of R.C. 2925.03(A)(2), (C)(4), a
first-degree felony; Count Two of possession of cocaine in violation of R.C.
2925.11(A), (C)(4), a first-degree felony; Count Three of aggravated possession of
fentanyl in violation of R.C. 2925.11(A), (C)(11), a second-degree felony; Count
Four of tampering with evidence in violation of R.C. 2921.12(A), a third-degree
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felony; Count Five of trafficking in heroin in violation of R.C. 2925.03(A)(1),
(C)(6), a fourth-degree felony; and Count Six of aggravated possession of drugs in
violation of R.C. 2925.11(A)(1), (C)(1), a fourth-degree felony. (Id.). Count Two
contained a major drug offender specification under R.C. 2941.1410 and Count Five
contained a forfeiture specification under R.C. 2941.1417. (Id.). On April 8, 2019,
Glenn appeared for arraignment and entered pleas of not guilty to the counts and
specifications in the indictment. (Doc. No. 7).
{¶4} On May 31, 2019, Glenn filed a motion for additional discovery. (Doc.
No. 37). In the motion, Glenn requested that the trial court compel the State to
provide her with any and all video recordings, police reports, and documentation
regarding controlled buys at 223 West Columbia on February 26, 2019, February
28, 2019, March 12, 2019, March 14, 2019, and March 20, 2019. (Id.). Glenn
argued that the information was discoverable under Crim.R. 16 because it was
“material to mitigation, exculpation, or impeachment.” (Id.).
{¶5} On June 7, 2019, the State filed its memorandum in opposition to
Glenn’s motion for additional discovery. (Doc. No. 38). The State argued that,
although the five prior controlled buys were referenced in the affidavit for the search
warrant which was executed on March 21, 2019, neither Glenn nor her co-
defendants were charged with any crimes relating to those transactions. (Id.).
Further, the State argued that Glenn failed to demonstrate that she would be
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prejudiced by non-disclosure of the controlled buys detailed in the search warrant
affidavit. (Id.).
{¶6} On June 11, 2019, the trial court held a hearing on Glenn’s motion for
additional discovery. (Doc. No. 39). At the conclusion of the hearing, the trial court
denied Glenn’s motion for additional discovery. (June 11, 2019 Tr. at 30). (See
Doc. No. 39).
{¶7} The case proceeded to a jury trial on August 22, 23, and 26, 2019. (See
Doc. No. 113). Prior to the commencement of trial, the trial court dismissed Counts
Five and Six of the indictment and the forfeiture specification that related to Count
Five of the indictment. (Id.). At the close of the State’s case, Glenn made a motion
for acquittal under Crim.R. 29, which the trial court denied. (Aug. 26, 2019 Tr. at
709-717). On August 26, 2019, the jury found Glenn guilty of all the remaining
counts in the indictment and the major drug offender specification associated with
Count Two. (Doc. Nos. 105, 106, 107, 108). (See Doc. No. 113).
{¶8} A sentencing hearing was held on September 16, 2019. (Doc. No.113).
Upon agreement of the parties, the trial court found that Counts One and Two
merged for purposes of sentencing. (Id.). Accordingly, the State elected to sentence
Glenn on Count Two. (Id.). The trial court sentenced Glenn to a mandatory term
of 11 years in prison on Count Two, a mandatory term of 7 years in prison on Count
Three, and 24 months in prison as to Count Four. (Id.). Further, the trial court
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ordered that the sentences should be served consecutively to each other for an
aggregate prison term of 20 years. (Id.). The following day, the trial court filed its
judgment entry of sentence. (Id.).
{¶9} On October 16, 2019, Glenn filed her notice of appeal. (Doc. No. 117).
She raises three assignments of error for our review. For ease of discussion, we
review the second and third assignments of error out of order.
Assignment of Error No. I
The trial court’s numerous errors involving evidentiary issues
denied appellant the right to present a defense thereby violating
her constitutional due process rights to a fair trial under the State
and Federal Constitutions. (Record Reference: Transcript of
Pre-Trial (Date 6/11/19), Tr. Vol. III, pp. 602-650)
{¶10} In the first assignment of error, Glenn argues that the trial court abused
its discretion by not permitting her to introduce two pieces of evidence at trial which
could have been used to establish the defense that she did not possess or traffic drugs
and that the drugs found at the scene and in her vehicle instead belonged to Green.
{¶11} First, Glenn argues that the trial court did not permit her to introduce
evidence of the five prior controlled buys at 223 West Columbia which apparently
do not show her trafficking drugs. Glenn contends that because she was not
trafficking drugs during those controlled buys, the videos of the controlled buys
could be used to advance her defense that she was not trafficking or knowingly
possessing drugs on March 21, 2019. Moreover, Glenn argues the evidence of the
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prior buys supports her defense that Green was selling drugs from the location and
that she was merely in the wrong place at the wrong time.
{¶12} Second, Glenn argues that the trial court erred by not admitting a
statement made by Green to Deputy Stacy McCoy (“Deputy McCoy”) during the
execution of the search warrant. Importantly, Green invoked his Fifth Amendment
right to remain silent and did not testify at Glenn’s trial. However, Glenn offered
the proferred testimony of Deputy McCoy, wherein Deputy McCoy testified to
statements Green made to her on March 21, 2019 during the execution of the search
warrant. Specifically, Deputy McCoy testified that Green told her that Glenn “had
nothing to do” with the drugs found at the residence and “took all responsibility”
for the drugs therein. (Aug. 26, 2019 Tr. at 614). Glenn sought to introduce Green’s
statements under Evid.R. 804(B)(3), which allows for the introduction of hearsay
statements when the declarant is unavailable. (Id. at 633-639). However, the trial
court determined that Green’s statements were not admissible. (Id. at 639-643).
{¶13} Glenn argues that by not permitting her to introduce these two pieces
of evidence, the trial court committed cumulative error which prevented her from
providing a credible defense that the drugs belonged to Green and, accordingly,
denied her the right to a fair trial.
{¶14} “Under [the] doctrine of cumulative error, a conviction will be
reversed when the cumulative effect of errors in a trial deprives a defendant of a fair
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trial though each of the numerous instances of trial court error does not individually
constitute cause for reversal.” State v. Spencer, 3d Dist. Marion No. 9-13-50, 2015-
Ohio-52, ¶ 83, citing State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, ¶ 222-
224 and State v. Garner, 74 Ohio St.3d 49, 64 (1995). “‘To find cumulative error,
a court must first find multiple errors committed at trial and determine that there is
a reasonable probability that the outcome below would have been different but for
the combination of the harmless errors.’” State v. Stober, 3d Dist. Putnam No. 12-
13-13, 2014-Ohio-5629, ¶ 15, quoting In re J.M., 3d Dist. Putnam No. 12-11-06,
2012-Ohio-1467, ¶ 36.
{¶15} Generally, the admission or exclusion of evidence lies within the trial
court’s discretion, and a reviewing court should not reverse absent an abuse of
discretion and material prejudice. State v. Conway, 109 Ohio St. 3d 412, 2006-
Ohio-2815, ¶ 62, citing State v. Issa, 93 Ohio St.3d 49, 64 (2001). An abuse of
discretion implies that the court’s attitude was unreasonable, arbitrary, or
unconscionable. State v. Adams, 62 Ohio St.2d 151, 157 (1980). “When applying
the abuse of discretion standard, a reviewing court is not free to merely substitute
its judgment for that of the trial court.” In re Jane Doe 1, 57 Ohio St.3d 135, 137-
138 (1991).
{¶16} “Evidence which is not relevant is not admissible.” Evid.R. 402.
Evidence is relevant when it has “any tendency to make the existence of any fact
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that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Evid.R. 401. “Under Evid.R.
403(A), ‘[a]lthough relevant, evidence is not admissible if its probative value is
substantially outweighed by the danger of unfair prejudice, of confusion of the
issues, or of misleading the jury.’” State v. Velez, 3d Dist. Putnam No. 12-13-10,
2014-Ohio-1788, ¶ 122, quoting State v. Maag, 3d Dist. Hancock No. 5-03-32,
2005-Ohio-3761, ¶ 71. Unfair prejudice is that quality of evidence which might
result in an improper basis for a jury decision.’” Id., quoting State v. Calhoun, 11th
Dist. Ashtabula No. 2010-A-0057, 2012-Ohio-1128, ¶ 82. “‘[D]espite the
mandatory terms of Evid.R. 403(A), when considering evidence under that rule, the
trial court is vested with broad discretion and an appellate court should not interfere
absent a clear abuse of that discretion.’” State v. Nevins, 171 Ohio App.3d 97, 2007-
Ohio-1511, ¶ 49 (2d Dist.), quoting State v. Harding, 2d Dist. Montgomery No.
20801, 2006-Ohio-481, ¶ 21.
{¶17} We turn first to Glenn’s argument relating to the five prior controlled
buys at 223 West Columbia. Glenn argues in her brief that the trial court erred by
not allowing her to admit evidence of the prior controlled buys at 223 West
Columbia, the location of her arrest. However, Glenn’s argument neglects the fact
that this evidence was not even available to her for potential admission. In Glenn’s
May 31, 2019 motion for additional discovery, she argued that the State should be
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compelled under Crim.R. 16 to produce video recordings, police reports, and
documentation relating to controlled buys at 223 West Columbia on February 26,
2019, February 28, 2019, March 12, 2019, March 14, 2019, and March 20, 2019.
Specifically, Glenn argued that under Crim.R. 16, the information relating to the
five previous controlled buys was discoverable to her because it is “material to
mitigation, exculpation, or impeachment.” (Doc. No. 37). The trial court denied
Glenn’s motion for additional discovery. Accordingly, although Glenn frames her
argument in the context of whether the potential evidence at issue should have been
excluded from the trial, the potential evidence was not discoverable and, therefore,
was not able to be offered at trial. Thus, rather than determining whether the trial
court erred by not admitting the evidence at trial, our analysis must first focus on
whether the trial court erred by not compelling the State to provide Glenn with the
video recordings, police reports, and documentation relating to the five previous
controlled buys at the residence.
{¶18} Crim.R. 16 provides the discovery rules for criminal proceedings.
State v. Engle, 166 Ohio App.3d 262, 2006-Ohio-1884, ¶ 7 (3d Dist.). “‘The trial
court has discretion to regulate discovery in a manner consistent with Crim.R. 16.’”
State v. Dahms, 3d Dist. Seneca No. 13-16-16, 2017-Ohio-4221, ¶ 114, quoting
State v. Mobley, 2d Dist. Montgomery No. 26858, 2016-Ohio-4579, ¶ 23.
Accordingly, “we review a trial court’s response to allegations of noncompliance
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with the criminal-discovery rules under an abuse-of-discretion standard.” Id., citing
State v. Wilson, 192 Ohio App.3d 189, 2011-Ohio-155, ¶ 54 (11th Dist.).
{¶19} The purpose of Crim.R. 16 “is to provide all parties in a criminal case
with the information necessary for a full and fair adjudication of the facts, to protect
the integrity of the justice system and the rights of defendants, and to protect the
well-being of witnesses, victims, and society at large.” Crim.R. 16(A). Crim.R.
16(B) states:
(B) Upon receipt of a written demand for discovery by the defendant,
and except as provided in division (C), (D), (E), (F), or (J) of this rule,
the prosecuting attorney shall provide copies or photographs, or
permit counsel for the defendant to copy or photograph, the following
items related to the particular case indictment, information, or
complaint, and which are material to the preparation of a defense, or
are intended for use by the prosecuting attorney as evidence at the
trial, or were obtained from or belong to the defendant, within the
possession of, or reasonably available to the state, subject to the
provisions of this rule:
(1) Any written or recorded statement by the defendant or a co-
defendant, including police summaries of such statements, and
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including grand jury testimony by either the defendant or co-
defendant;
(2) Criminal records of the defendant, a co-defendant, and the record
of prior convictions that could be admissible under Rule 609 of the
Ohio Rules of Evidence of a witness in the state’s case-in-chief, or
that it reasonably anticipates calling as a witness in rebuttal;
(3) Subject to divisions (D)(4) and (E) of this rule, all laboratory or
hospital reports, books, papers, documents, photographs, tangible
objects, buildings, or places;
(4) Subject to division (D)(4) and (E) of this rule, results of physical
or mental examinations, experiments or scientific tests;
(5) Any evidence favorable to the defendant and material to guilt or
punishment;
(6) All reports from peace officers, the Ohio Highway Patrol, and
federal law enforcement agents, provided however, that a document
prepared by a person other than the witness testifying will not be
considered to be the witness’s prior statement for purposes of the cross
examination of that particular witness under the Rules of Evidence
unless explicitly adopted by the witness;
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(7) Any written or recorded statement by a witness in the state’s
case-in-chief, or that it reasonably anticipates calling as a witness in
rebuttal.
Crim.R. 16(B).
{¶20} The United States Supreme Court has held that “the suppression by
the prosecution of evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to punishment, irrespective
of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83,
87, 83 S.Ct. 1194 (1963). In recognition thereof, Crim.R. 16(B)(5) requires the
prosecutor to disclose “[a]ny evidence favorable to the defendant and material to
guilt or punishment.” “However, ‘the principles of Brady do not apply unless the
evidence is material to mitigation, exculpation, or impeachment.’” State v. Griffin,
3d Dist. Allen No. 1-03-31, 2004-Ohio-287, ¶ 9, quoting State v. Keene, 81 Ohio
St.3d 646 (1998), citing Calley v. Callaway, 519 F.2d 184, 221 (5th Cir.1975).
{¶21} “Evidence is material if there is a ‘“reasonable probability”’ that the
result of the trial would have been different had the evidence been disclosed to the
defense.” State v. Osie, 140 Ohio St.3d 131, 2014-Ohio-2966, ¶ 153, quoting Kyles
v. Whitley, 514 U.S. 419, 433, 115 S.Ct. 1555 (1995), quoting United States v.
Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375 (1985). “‘A “reasonable probability” is
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probability sufficient to undermine confidence in the outcome.’” Id., quoting State
v. Johnston, 39 Ohio St.3d 48 (1988), paragraph five of the syllabus.
{¶22} Glenn argued that, by failing to provide her with the video recordings,
police reports, and documentation related to the five prior controlled buys at 223
West Columbia, which formed the basis of the search warrant executed on March
21, 2019, the State was withholding discoverable information which was material
to mitigation, exculpation, or impeachment. We disagree.
{¶23} First, at the hearing on Glenn’s motion for additional evidence, the
trial court, with the agreement of the State, offered to review the requested discovery
in camera to determine whether it contained potential exculpatory evidence. (June
11, 2019 Tr. at 24-25, 27-28, 36-37). However, Glenn’s attorney repeatedly rejected
the trial court’s offer to review the requested material. (Id.). Accordingly, by
Glenn’s attorney’s action, the trial court did not have the opportunity to review the
potential evidence. Further, the potential evidence was never made part of the
record. Because the potential evidence is not included in the record, we cannot find
that the evidence requested was related to the indictment or that it was material to
the preparation of Glenn’s defense. See State v. Hebdon, 12th Dist. Butler Nos.
CA2012-03 and CA2012-03-062, 2013-Ohio-1729, ¶ 54 (holding that because there
was not an indication in the record that the appellant requested to have copies of the
potential evidence sealed and placed in the record to preserve the issue for appellate
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review, the court “cannot find that the evidence requested was related to the
particular case, indictment, or complaint, or that it was material to the preparation
of appellant’s defense”); State v. Darrah, 12th Dist. Warren No. CA2006-09-109,
2007-Ohio-7080, ¶ 29 (finding that “[b]ecause [the potential evidence] is not
included in the record, it is impossible for appellant to prove that the evidence
requested was favorable” and, therefore, “it is impossible for appellant to prove that
he was prejudiced by the trial court’s decision to deny his motion to compel”).
{¶24} Further, Crim.R. 16(B) requires the disclosure of “items related to the
particular case indictment, information, or complaint.” Here, the indictment and
bill of information only specified conduct which occurred on March 21, 2019. (Doc.
Nos. 2, 14). Moreover, the State confirmed that it would not present any evidence
at trial other than that pertaining to conduct on March 21, 2019. (June 11, 2019 Tr.
at 16-18). Additionally, the State testified that it would not make any argument at
trial as to modus operandi, prior drug possession, or sales with regard to Glenn or
any of her co-defendants and that it would not call witnesses to testify regarding the
five prior controlled buys at the residence. (Id. at 18).1 See Hebdon at ¶ 54.
Accordingly, we cannot find that the trial court abused its discretion by denying
Glenn’s motion for additional evidence.
1
We note that Glenn does not argue that the State presented or attempted to present evidence at trial other
than that pertaining to the events of March 21, 2019. (Appellant’s Brief at 11-12). Rather, Glenn’s argument
focuses on her inability to discover and present evidence relating to the five prior controlled buys for the
purpose of developing her defense.
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{¶25} Having determined that the trial court did not abuse its discretion by
denying Glenn’s motion for additional evidence, we need not address Glenn’s
argument that the trial court erred by declining to admit statements made by Green
during the execution of the March 21, 2019 search warrant. Under the doctrine of
cumulative error, under which Glenn makes her argument, a court must first find
multiple errors committed at trial. Spencer, 2015-Ohio-52, at ¶ 83; Stober, 2012-
Ohio-1467, at ¶ 36. Here, even if we assume (without deciding) that the trial court
committed harmless error by failing to admit statements made by Green during the
execution of the March 21, 2019 search warrant, the cumulative error doctrine
would still not be applicable because it requires the finding of multiple errors. Id.;
id. See State v. Bower, 3d Dist. Shelby No. 17-14-14, 2015-Ohio-1889, ¶ 25.
{¶26} Accordingly, Glenn’s first assignment of error is overruled.
Assignment of Error No. III
The jury’s verdicts were against the manifest weight of the
evidence in violation of the United States Constitution and the
Ohio Constitution. (Record Reference: Judgment Entry)
{¶27} In her third assignment of error, Glenn argues that her convictions are
against the manifest weight of the evidence.
{¶28} In determining whether a conviction is against the manifest weight of
the evidence, a reviewing court must examine the entire record, “‘weigh[] the
evidence and all reasonable inferences, consider[] the credibility of witnesses and
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determine[] whether in resolving conflicts in the evidence, the [trier of fact] clearly
lost its way and created such a manifest miscarriage of justice that the conviction
must be reversed and a new trial ordered.’” State v. Thompkins, 78 Ohio St.3d 380,
387 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A
reviewing court must, however, allow the trier of fact appropriate discretion on
matters relating to the weight of the evidence and the credibility of the witnesses.
State v. DeHass, 10 Ohio St.2d 230, 231 (1967). When applying the manifest-
weight standard, “[o]nly in exceptional cases, where the evidence ‘weighs heavily
against the conviction,’ should an appellate court overturn the trial court’s
judgment.” State v. Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9,
quoting State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.
{¶29} However, we note that Glenn offers no support for her argument that
her convictions are against the manifest weight of the evidence. Rather, Glenn’s
sole argument related to her third assignment of error is as follows: “Counsel has
cited the relevant portion of [the] transcript contained herein as to why the State
believes the verdict was correct, however to preserve Appellant’s rights for future
review, seeks the Court to review the facts contained within this testimony to see if
they establish all requisite elements of the offenses.” (Appellant’s Brief at 16).
{¶30} “‘[A] defendant has the burden of affirmatively demonstrating the
error of the trial court on appeal.’” State v. Costell, 3d Dist. Union No. 14-15-11,
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2016-Ohio-3386, ¶ 86, quoting State v. Stelzer, 9th Dist. Summit No. 23174, 2006-
Ohio-6912, ¶ 7. “Moreover, ‘[i]f an argument exists that can support this
assignment of error, it is not this court’s duty to root it out.’” Stelzer at ¶ 7, quoting
State v. Cook, 9th Dist. Summit No. 20675, 2002-Ohio-2646, ¶ 27. “App.R.
12(A)(2) provides that an appellate court ‘may disregard an assignment of error
presented for review if the party raising it fails to identify in the record the error on
which the assignment of error is based or fails to argue the assignment separately in
the brief, as required under App.R. 16(A).’” State v. Jackson, 10th Dist. Franklin
No. 14AP-670, 2015-Ohio-3322, ¶ 11, quoting App.R. 12(A)(2). “Additionally,
App.R. 16(A)(7) requires that an appellant’s’ brief include ‘[a]n argument
containing the contentions of the appellant with respect to each assignment of error
presented for review and the reasons in support of the contentions, with citations to
the authorities, statutes, and parts of the record on which appellant relies.’” Id.,quoting App.R. 16(A)(7). Here, not only did Glenn fail to include an argument
regarding how her convictions were against the manifest weight of the evidence, but
she also failed to provide citations to the authorities, statutes, and parts of the record
that support her argument. Thus, we need not address Glenn’s argument that her
convictions are against the manifest weight of the evidence.
{¶31} Accordingly, Glenn’s third assignment of error is overruled.
Assignment of Error No. II
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The trial court erred in imposing a prison term consecutive to
another prison term because there was no finding that the
sentence was not disproportionate to any danger the defendant
may pose to the public and the trial court failed to identify
specific reasons in support of its finding that consecutive
sentences were appropriate. (Record Reference: Judgment
Entry)
{¶32} In her second assignment of error, Glenn argues that the trial court
erred by sentencing her to 20 years in prison. Specifically, she contends that the
trial court erred by imposing consecutive sentences because it did not make the
requisite consecutive sentence findings on the record. Further, Glenn argues that
the trial court erred by imposing consecutive sentences because it failed to identify
specific reasons in support of its finding that consecutive sentences were
appropriate.
{¶33} “Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence
‘only if it determines by clear and convincing evidence that the record does not
support the trial court’s findings under relevant statutes or that the sentence is
otherwise contrary to law.’” State v. Nienberg, 3d Dist. Putnam Nos. 12-16-15 and
12-16-16, 2017-Ohio-2920, ¶ 8, quoting State v. Marcum, 146 Ohio St.3d 516,
2016-Ohio-1002, ¶ 1. “Clear and convincing evidence is that ‘“which will produce
in the mind of the trier of facts a firm belief or conviction as to the facts sought to
be established.”’” Id., quoting Marcum at ¶ 22, quoting Cross v. Ledford, 161 Ohio
St. 469 (1954), paragraph three of the syllabus.
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{¶34} Here, Glenn does not challenge the length of any of the sentences
imposed. Rather, Glenn challenges only the trial court’s determination that the
sentences should be served consecutively to each other. Accordingly, we limit our
review to a consideration of whether the trial court made the necessary findings
prior to imposing consecutive sentences and whether those findings are supported
by the record.
{¶35} “Except as provided in * * * division (C) of section 2929.14, * * * a
prison term, jail term, or sentence of imprisonment shall be served concurrently with
any other prison term, jail term, or sentence of imprisonment imposed by a court of
this state, another state, or the United States.” R.C. 2929.41(A). R.C. 2929.14(C)
provides:
(4) * * * [T]he 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:
(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
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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.
R.C. 2929.14(C).
{¶36} R.C. 2929.14(C)(4) requires a trial court to make specific findings on
the record when imposing consecutive sentences. State v. Hites, 3d Dist. Hardin
No. 6-11-07, 2012-Ohio-1892, ¶ 11; State v. Peddicord, 3d Dist. Henry No. 7-12-
24, 2013-Ohio-3398, ¶ 33. Specifically, the trial court must find: (1) consecutive
sentences are necessary to either protect the public or punish the offender; (2) the
sentences would not be disproportionate to the offense committed; and (3) one of
the factors in R.C. 2929.14(C)(4)(a), (b), or (c) applies. Id.; Id.-20-
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{¶37} The trial court must state the required findings at the sentencing
hearing prior to imposing consecutive sentences and incorporate those findings into
its sentencing entry. State v. Sharp, 3d Dist. Putnam No. 12-13-01, 2014-Ohio-
4140, ¶ 50, citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, ¶ 29. A
trial court “has no obligation to state reasons to support its findings” and is not
“required to give a talismanic incantation of the words of the statute, provided that
the necessary findings can be found in the record and are incorporated into the
sentencing entry.” Bonnell at ¶ 37.
{¶38} At the sentencing hearing, the trial court made the following
statements regarding Glenn’s sentences:
I do also find that consecutive sentences are necessary in each of these
counts, and we’ll run each of them consecutive to each other because
it’s necessary to protect the public from future crime, and that
consecutive sentences are not disproportionate to the seriousness of
the offender’s conduct and the danger the offender posed to the public
with this conduct.
(Sept. 16, 2019 Tr. at 16-17).
{¶39} Based on our review of the record, we cannot conclude that the trial
court complied with its obligation to make all of the required R.C. 2929.14(C)(4)
findings at the sentencing hearing. In finding that the consecutive sentences were
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necessary to protect the public from future crime and that consecutive sentences are
not disproportionate to the seriousness of the offender’s conduct, the trial court
made findings under R.C. 2929.14(C). However, the trial court did not make any
findings at the sentencing hearing relating to one of the factors in R.C.
2929.14(C)(4)(a), (b), or (c).
{¶40} In its sentencing entry, the trial court stated:
In finding that the sentences shall be served consecutively, the Court
finds that consecutive sentences are necessary to punish the Defendant
or to protect the public from future crime, and that the sentences are
not disproportionate to the seriousness of the Defendant’s conduct and
the danger posed by the Defendant. The Court further finds that the
harm caused by two or more of the multiple offenses so committed
was so great or unusual that no single prison term for either of the
offenses committed as part of the course of conduct adequately
reflects the seriousness of the Defendant’s conduct.
(Doc. No. 113). Thus, the trial court made the appropriate R.C. 2929.14(C)(4)
findings in its sentencing entry. However, because the trial court must make all
required findings both at the sentencing hearing and in its judgment entry of
sentence, the trial court’s addition of a finding under R.C. 2929.14(C)(4)(b) in the
judgment entry does not make a difference. State v. Brown, 7th Dist. Jefferson No.
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15 JE 0014, 2016-Ohio-5701, ¶ 19 (“[T]he court did put the necessary findings in
the judgment entry of sentence. But the court must make the findings at the
sentencing hearing, not simply in the judgment entry.”)
{¶41} Accordingly, because the trial court did not make all of the required
R.C. 2929.14(C)(4) findings at Glenn’s sentencing hearing, “‘the imposition of
consecutive sentences in this case is contrary to law.’” State v. Payne, 3d Dist.
Henry No. 7-19-02, 2019-Ohio-2852, ¶ 6, quoting Bonnell at ¶ 37. As a result, we
reverse the judgment of the trial court, vacate Glenn’s sentence, and remand the
matter to the trial court for resentencing. Id.; Brown at ¶ 21.
{¶42} Glenn’s second assignment of error is sustained.
{¶43} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued with respect to her first and third assignments of
error, we affirm the judgment of the trial court with respect to those matters.
However, having found error prejudicial to the appellant herein in the particulars
assigned and argued with respect to her second assignment of error, we reverse the
judgment of the trial court with respect to that matter and remand to the trial court
for resentencing consistent with this opinion.
Judgment Affirmed in Part,
Reversed in Part and
Cause Remanded.
ZIMMERMAN and SHAW, J.J., concur.
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