State v. Pearce ( 2022 )

[Cite as State v. Pearce, 2022-Ohio-2617.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2021-12-161
: OPINION
- vs - 8/1/2022
:
BRANDON CHRISTOPHERWAYN :
PEARCE,
:
Appellant.
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2020-08-1066
Michael T. Gmoser, Butler County Prosecuting Attorney, and John C. Heinkel, Assistant
Prosecuting Attorney, for appellee.
Michele Temmel, for appellant.
PIPER, P.J.
{¶ 1} On August 26, 2020, appellant, Brandon Pearce, was indicted by the Butler
County Grand Jury on 48 counts involving child pornography. He ultimately pled guilty to
23 counts of pandering sexually oriented matter involving a minor, fourth-degree felonies,
and one count of illegal use of a minor in a nudity-oriented material or performance, a fifth-
degree felony. Pearce timely appeals the sentence imposed by the Butler County Court of
Butler CA2021-12-161
Common Pleas.
{¶ 2} The trial court sentenced Pearce to eight months in prison on each of the 24
counts, which the trial court ordered to be served consecutively. The total prison term
imposed by the trial court was 16 years. Pearce raises a single assignment of error for
review:
{¶ 3} THE TRIAL COURT ERRED TO THE PREJUDICE OF MR. PEARCE WHEN
IT SENTENCED HIM TO CONSECUTIVE SENTENCES IN THE OHIO DEPARTMENT OF
REHABILITATION AND CORRECTIONS.
{¶ 4} Pearce asks that we review and reverse his 16-year sentence. He argues the
law requires we find the trial court erred in sentencing him to consecutive sentences.
{¶ 5} This court reviews felony sentences pursuant to the standard of review set
forth in R.C. 2953.08(G)(2) to determine whether the imposition of those sentences is
clearly and convincingly contrary to law. State v. Julious, 12th Dist. Butler No. CA2015-12-
224, 2016-Ohio-4822, ¶ 8. Pursuant to that statute, an appellate court may modify or vacate
a sentence only if, by clear and convincing evidence, "'the record does not support the trial
court's findings under relevant statutes or that the sentence is otherwise contrary to law.'"
State v. Harp, 12th Dist. Clermont No. CA2015-12-096, 2016-Ohio-4921, ¶ 7, quoting State
v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1.
{¶ 6} A sentence is not clearly and convincingly contrary to law where the trial court
considers the purposes and principles of sentencing as set forth in R.C. 2929.11, as well
as the seriousness and recidivism factors listed in R.C. 2929.12, and sentences a defendant
within the permissible statutory range. State v. Brandenburg, 12th Dist. Butler Nos.
CA2014-10-201 and CA2014-10-202, 2016-Ohio-4918, ¶ 9. The factors set forth in R.C.
2929.12 are nonexclusive, and R.C. 2929.12 explicitly permits a trial court to consider any
relevant factors in imposing a sentence. State v. Stamper, 12th Dist. Butler No. CA2012-
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Butler CA2021-12-161
08-166, 2013-Ohio-5669, ¶ 11.
{¶ 7} Pursuant to R.C. 2929.14(C)(4), a trial court must engage in a three-step
analysis and make certain findings before imposing consecutive sentences. State v. Dillon,
12th Dist. Madison No. CA2012-06-012, 2013-Ohio-335, ¶ 9. First, the trial court must find
that the consecutive sentence is necessary to protect the public from future crime or to
punish the offender. R.C. 2929.14(C)(4). Id. Second, the trial court must find that
consecutive sentences are not disproportionate to the seriousness of the offender's conduct
and to the danger the offender poses to the public. Id. Third, the trial court must find that
one of the following applies:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a
sanction imposed pursuant to section 2929.16, 2929.17, or
2929.18 of the Revised Code, or was under post-release control
for a prior offense.
(b) At least two of the multiple offenses were committed as part
of one or more courses of conduct, and the harm caused by two
or more of the multiple offenses so committed was so great or
unusual that no single prison term for any of the offenses
committed as part of any of the courses of conduct adequately
reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from
future crime by the offender.
R.C. 2929.14(C)(4)(a)-(c).
{¶ 8} "A trial court satisfies the statutory requirement of making the required findings
when the record reflects that the court engaged in the required analysis and selected the
appropriate statutory criteria." State v. Setty, 12th Dist. Clermont Nos. CA2013-06-049 and
CA2013-06-050, 2014-Ohio-2340, ¶ 113. In imposing consecutive sentences, the trial court
is not required to provide a word-for-word recitation of the language of the statute or
articulate reasons supporting its findings. Id. Nevertheless, the record must reflect that the
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trial court engaged in the required sentencing analysis and made the requisite findings. Id.The court's findings must thereafter be incorporated into its sentencing entry. State v.
Ahlers, 12th Dist. Butler No. CA2015-06-100, 2016-Ohio-2890, ¶ 10.
{¶ 9} On appeal, Pearce argues the record fails to adequately reflect the required
findings for the imposition of consecutive sentences. In so doing, he argues there was
nothing in the record to indicate that he would commit future crimes and that the 16-year
sentence is "harsh and fails to comport with the purposes and principles of felony
sentencing." He further claims that the sentence is disproportionate to the danger he poses
to the public and that a sentence of community control would have been more beneficial to
himself and the community at large.
{¶ 10} Following review, we find the trial court did not err in its sentencing decision,
as Pearce's sentence was not contrary to law and was supported by the record. In the
present case, the trial court stated that it had considered the purposes and principles of
sentencing, as well as the seriousness and recidivism factors contained in R.C. 2929.11
and 2929.12. The trial court stated that Pearce had a limited criminal history but noted that
he admitted that he had previously been accused, investigated, or charged with other sex
offenses as a juvenile in Lee County, Florida, and had participated in an adolescent
treatment program. The trial court stated that Pearce's conduct was graphic, involving pre-
pubescent children and infants. The trial court found that Pearce was not amenable to
community control.
{¶ 11} The record likewise reflects that the trial court made the findings required by
R.C. 2929.14(C)(4) when it ordered Pearce's sentences be served consecutively. The trial
court found that consecutive sentences were necessary to protect the public and punish
Pearce. The trial court found that consecutive sentences are not disproportionate to
Pearce's conduct and to the danger he poses to the public. The trial court also found that
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Butler CA2021-12-161
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 Pearce's conduct. Finally, the trial court
awarded Pearce with 470 days of jail time credit.
{¶ 12} The trial court later memorialized these findings within its sentencing entry.
From the trial court's statements at the sentencing hearing and the language used in the
sentencing entry, it is clear that the trial court complied with the dictates of R.C.
2929.14(C)(4). State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, ¶ 37; State v. Sess,
12th Dist. Butler No. CA2015-06-117, 2016-Ohio-5560, ¶ 35-38.
{¶ 13} Although Pearce disagrees with the trial court's sentencing decision, the trial
court determines the weight afforded to the relevant factors or other relevant circumstances.
State v. Steger, 12th Dist. Butler No. CA2006-03-059, 2016-Ohio-7908, ¶ 18. As we have
previously recognized, pandering sexually oriented matter involving a minor is a serious
offense and children are seriously harmed by the mere possession of pornography in which
they are depicted. State v. Boggs, 12th Dist. Butler No. CA2019-07-114, 2020-Ohio-2881,
¶ 14. "[C]onsumers of child pornography victimize the children depicted in child
pornography by enabling and supporting the continued production of child pornography,
which entails continuous direct abuse and victimization of child subjects." Id. By
possessing graphic images of minors depicted in sexual activity, Pearce indirectly
contributed to, and sponsored, the abhorrent conduct of sexually exploiting children.
Preserving such aberrant behavior for repetitive viewing or for the potential dissemination
or viewing by others is beyond explanation. Considering the foregoing, we find the trial
court's sentencing decision was not contrary to law and its decision to impose consecutive
prison terms was appropriate. As a result, we find the trial court did not err in its sentencing
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decision. Pearce's sole assignment of error is overruled.
{¶ 14} Judgment affirmed.
S. POWELL and HENDRICKSON, JJ., concur.
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