State v. Fornbrook , 2023 Ohio 1336 ( 2023 )

[Cite as State v. Fornbrook, 2023-Ohio-1336.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. Patricia A. Delaney, J.
Plaintiff-Appellee : Hon. Andrew J. King, J.
:
-vs- :
: Case No. 2022 CA 00106
CHRISTOPHER FORNCROOK :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Licking County
Court of Common Pleas, Case 17CR955
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 24, 2023
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JENNY WELLS WILLIAM T. CRAMER
Licking County Prosecutor 470 Olde Worthington Road, Suite 200
By: KENNETH W. OSWALT Westerville, OH 43082
Assistant County Prosecutor
20 S. Second Street, 4th Floor
Newark, OH 43055
[Cite as State v. Fornbrook, 2023-Ohio-1336.]
Gwin, P.J.
{¶1} Defendant-appellant Christopher J. Forncrook [“Forncrook”] appeals from
the imposition of a prison sentence after he admitted violating the terms of his community
control in the Licking County Court of Common Pleas.
Facts and Procedural History
{¶2} In December 2017, Forncrook was indicted on two counts: (1) kidnapping
in violation of R.C. 2905.01(B)(1) as a second-degree felony because the victim was
released in a safe place unharmed; and (2) gross sexual imposition with a person less
than thirteen years of age in violation of R.C.2907.05(A)(4), a third-degree felony
{¶3} The state filed a bill of particulars that alleged on November 6, 2017,
Forncrook met with a twelve-year-old girl in Licking County and transported her to a hotel
in Columbus, Ohio, where he engaged in sexual contact with her. When he learned the
police were looking for him, he transported her back to Newark and released her so that
she could ride her bicycle home. Forncrook was subsequently interviewed by the police
and allegedly admitted to transporting the girl and having sexual contact with the girl. Bill
of Particulars, filed Jan 17, 2018. [Docket Entry No. 20].
{¶4} On June 12, 2018, Forncrook entered a negotiated guilty plea to the
Indictment. [Docket Entry No. 30]. The court accepted the guilty pleas, but declined to
merge the counts, finding that transportation to a hotel in the Columbus area subjected
the victim to a substantial increase in risk of harm separate and apart from that involved
in the gross sexual imposition. Accordingly, the court imposed a prison term of four years
on count one and a concurrent term of four years on count two. The court imposed a
mandatory period of five years of post-release control. The court also declared Forncrook
Licking County, Case No. 2022 CA 00106 3
to be a Tier III sex offender. Judgement Entry, filed June 12, 2018. [Docket Entry No.
31].
{¶5} On December 24, 2018, Forncrook filed a motion for judicial release.
[Docket Entry No. 37]. The trial court overruled the motion by Judgment Entry filed
January 3, 2019. [Docket Entry No. 38].
{¶6} On March 7, 2019, Forncrook filed a motion for judicial release. [Docket
Entry No. 40]. The trial court overruled the motion by Judgment Entry filed April 29, 2019.
[Docket Entry No. 41].
{¶7} On May 20, 2019, Forncrook filed a motion for judicial release. [Docket
Entry No. 42]. The trial court overruled the motion by Judgment Entry filed November 4,
2019. [Docket Entry No. 46].
{¶8} On April 2, 2020, Forncrook filed a motion for judicial release. [Docket Entry
No. 49]. On July 6, 2020, the court granted the motion and modified Forncrook’s sentence
to three years of community control. The terms of community control included drug and
alcohol monitoring, a mental health treatment program, sex offender specific treatment,
150 hours of community service, a prohibition on possessing pornography, monitoring of
internet usage, a prohibition on unsupervised contact with anyone under the age of
eighteen, a no-contact order with the victim, and electronic monitoring. Judgement Entry,
filed July 6, 2020 at Exhibit A. [Docket Entry No. 59].
{¶9} On November 30, 2020, a motion to revoke Forncrook’s community control
was filed alleging,
10-29-20: The defendant failed to report internet identifiers to his
Wisconsin Probation Officer (this is an ICOTS case). Failure to report these
Licking County, Case No. 2022 CA 00106 4
identifiers is a Class H felony in Wisconsin. Mr. Forncrook was given notice
of this law on September 8, 2020. He is not receiving any additional charges
at this time. The defendant admitted to not reporting these identifiers as he
stated he "knew it was not right."
10-26-20: The defendant violated several state of Wisconsin
probation terms related to the defendant's sex offense. The defendant had
evidence on his iPhone indicating he had been accessing the following
online dating applications: Hinge; Catholic Match and eHarmony. Several
conversations were found between the defendant via these applications,
emails, texts and/or messaging. The defendant was never approved to use
the internet.
9-5-20: The defendant engaged in unapproved contact with his minor
children after being told to cease all face to face contact with his children
until Wisconsin Probation Officers could speak with his ex-wife. The
defendant is to have all associations approved by his Probation Officer and
he is not to have contact with minor children.
Motion to Revoke Community Control, filed Nov. 30, 2020 [Docket Entry No. 63].
{¶10} On January 5, 2021, at the second stage hearing held before the trial judge,
Forncrook admitted that he had violated the terms of his community control. [Docket
Entry No. 70]. The court continued community control. The terms of community control
included drug and alcohol monitoring, a mental health treatment program, sex offender
specific treatment, 150 hours of community service, a prohibition on possessing
pornography, monitoring of internet usage, a prohibition on unsupervised contact with
Licking County, Case No. 2022 CA 00106 5
anyone under the age of eighteen, a no-contact order with the victim, and obtain and
maintain employment. The court further included a term of house arrest “with or without”
electronic monitoring and the Volunteers of America halfway house program.
{¶11} On September 28, 2022, a motion to revoke Forncrook’s community control
was filed alleging that while under supervision in his home state of Wisconsin, Forncrook
on June 17, 2022, cut off his GPS monitor before absconding from supervision. Motion
to Revoke Community Control, filed Sept. 28,2022. [Docket Entry No. 81].
{¶12} On October 27, 2022, at the second stage hearing held before the trial
judge, Forncrook admitted that he had violated the terms of his community control.
Judgment Entry, filed Oct. 27, 2022. [Docket Entry No. 87]. Forncrook' s attorney
requested that community control be continued, noting that Forncrook was going through
a mental health crisis at the time he absconded. Forncrook had lost his job, was getting
evicted, and attempted to commit suicide by consuming pills. Forncrook' s attorney noted
that he had no substantial criminal history beyond this case.
{¶13} Forncrook also addressed the court directly and was apologetic, explaining
that he did not violate out of defiance, but rather desperation. Forncrook said he was
suffering from mental illness and requested a sentence somewhere between prison and
community control where he could get help for his mental health issues. Forncrook noted
that he sent the court a letter, and the judge indicated that he had read the letter. In the
letter, Forncrook noted that he was successful with programming in prison, where he was
found to be a non-violent offender with a low chance of recidivism. However, Forncrook
alleged that when his supervision was transferred to Wisconsin, the paperwork
erroneously indicated that he was involved in a violent kidnapping and rape. As a result,
Licking County, Case No. 2022 CA 00106 6
he was labelled a sexually violent offender and was subject to the strictest sanctions and
GPS monitoring. Forncrook objected to the designation, but was told that it was the law.
The restrictions prevented him from having contact with his four children, and impacted
his housing and job opportunities, leading to him being homeless and unemployed. He
was also denied mental health treatment because he was deemed too dangerous to be
around other patients. Forncrook expressed remorse for absconding and asked to be put
back in the Volunteers of America program, where he had been successful.
{¶14} The trial court found that prison was appropriate and reimposed the prior
four years, with 1029 days of confinement credits. The court also imposed a mandatory
five years of post-release control and declared Forncrook to be a Tier III sex offender.
Forncrook was ordered to pay costs, but not fines.
Assignment of Error
{¶15} Forncrook raises one Assignment of Error,
{¶16} “I. THE TRIAL COURT ABUSED ITS DISCRETION BY TERMINATING
JUDICIAL RELEASE AND RE-IMPOSING APPELLANT'S SUSPENDED PRISON TERM
AFTER APPELLANT SUFFERED A MENTAL HEALTH BREAKDOWN AND
ABSCONDED FROM SUPERVISION WITHOUT COMMITTING ANY ADDITIONAL
CRIMES.”
Law and Analysis
Standard of Appellate Review
{¶17} The right to continue community control depends on compliance with
community control conditions and “is a matter resting within the sound discretion of the
court.” State v. Garrett, 5th Dist. Stark No. 2010 CA 00210, 2011-Ohio-691, ¶ 13; State v.
Licking County, Case No. 2022 CA 00106 7
Schlecht, 2nd Dist. Champaign No. 2003-CA-3, 2003-Ohio-5336, citing State v. Johnson,
2nd Dist. Montgomery No. 17420, 2001 WL 561312(May 25, 2001).
{¶18} A community control revocation hearing is not a criminal trial. State v.
White, 5th Dist. Stark No. 2009-CA-00111, 2009–Ohio–6447. Once a court finds a
defendant violated the terms of community control, the decision whether to revoke
community control lies within the court’s sound discretion. State v. White, supra at ¶ 14.
Thus, a reviewing court will not reverse a trial court’s decision absent an abuse of
discretion. State v. Sheets, 112 Ohio App.3d 1, 677 N.E.2d 818 (4th Dist. 1996); State v.
Ritenour, 5th Dist. Tuscarawas No. 2006AP010002, 2006-Ohio-4744, ¶ 37. As the Ohio
Supreme Court has recently explained,
The term “abuse of discretion” connotes that “‘the court’s attitude is
unreasonable, arbitrary or unconscionable.’” [State v. Gondor, 112 Ohio
St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77] at ¶ 60, quoting State v. Adams,
62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). Stated differently, an
abuse of discretion involves more than a difference in opinion: the “‘term
discretion itself involves the idea of choice, of an exercise of the will, of a
determination made between competing considerations.’” State v. Jenkins,
15 Ohio St.3d 164, 222, 473 N.E.2d 264 (1984), quoting Spalding v.
Spalding, 355 Mich. 382, 384, 94 N.W.2d 810 (1959). For a court of appeals
to reach an abuse-of-discretion determination, the trial court’s judgment
must be so profoundly and wholly violative of fact and reason that “‘it
evidences not the exercise of will but perversity of will, not the exercise of
Licking County, Case No. 2022 CA 00106 8
judgment but defiance thereof, not the exercise of reason but rather of
passion or bias.’” Id., quoting Spalding at 384-385, 94 N.W.2d 810.
State v. Weaver, Slip Op. 2022-Ohio-4371, ¶24 (Dec. 8, 2022). An abuse of discretion
can be found where the reasons given by the court for its action are clearly untenable,
legally incorrect, or amount to a denial of justice, or where the judgment reaches an end
or purpose not justified by reason and the evidence. Tennant v. Gallick, 9th Dist. Summit
No. 26827, 2014-Ohio-477, ¶35; In re Guardianship of S.H., 9th Dist. Medina No.
13CA0066–M, 2013–Ohio–4380, ¶ 9; State v. Firouzmandi, 5th Dist. Licking No. 2006–
CA–41, 2006–Ohio–5823, ¶54.
{¶19} The weight to be given to the evidence and the credibility of the witnesses
are issues for the trier of fact. State v. Jamison, 49 Ohio St.3d 182, 552 N.E.2d 180(1990), certiorari denied, 498 U.S. 881, 111 S.Ct. 228, 112 L.Ed.2d 183(1990).
Reviewing courts should accord deference to the trial court’s decision because the trial
court has had the opportunity to observe the witnesses’ demeanor, gestures, and voice
inflections which cannot be conveyed to us through the written record. Miller v. Miller, 37
Ohio St.3d 71, 523 N.E.2d 846(1988).
Issue for Appellate Review: Whether the trial court abused its discretion
by revoking Forncrook’s community control and imposing the suspended prison term
{¶20} Forncrook argues, in essence, that his mental health problems constitute a
mitigating factor. See, State v. Wolfe, 5th Dist. Stark No. 2008-CA-00064, 2009-Ohio-
830. However, Forncrook’s act of removing his GPS monitor was undoubtably a
voluntary, conscious act. Forncrook admits as much in his letter to the trial judge filed
October 27, 2022.
Licking County, Case No. 2022 CA 00106 9
{¶21} Forncrook was previously violated for not following the community control
terms imposed in Wisconsin. Motion to Revoke Community Control, filed Nov 30, 2020.
[Docket Entry No. 63]. Thus, Forncrook had an opportunity at the previous revocation
hearing to bring to the trial judge’s attention any claims that he was subjected to
inappropriate or unauthorized conditions of community control supervision. Furthermore,
Forncrook could have filed a motion with the trial court to modify, correct or clarify the
terms of his community control supervision instead of simply choosing to ignore them.
Forncrook was advised when he previously violated the conditions of his community
control that any further violations would result in the imposition of the suspended prison
sentence. Judgement Entry, filed July 6, 2020 at Exhibit A, Residential Sanctions No. 5
[Docket Entry No. 70].
{¶22} Forncrook did not give the trial judge any evidence documenting his alleged
mental breakdown. Forncrook did not provide the trial judge with any evidence or
affidavits to substantiate that he was labeled a sexually violent offender, or that he was
denied treatment because of his designation. Forncrook chose to admit the violations
rather than present evidence during the revocation hearing. Thus, the record contains no
evidence to substantiate Forncrook’s claim that he suffered a mental health crisis that led
him to cut off his ankle monitor and abscond from supervision. Strict supervision
requirements and electronically monitored house arrest do not justify removing the ankle
monitor and absconding from supervision. Though the conditions may be difficult, they
are not unreasonable.
Licking County, Case No. 2022 CA 00106 10
{¶23} Because Forncrook failed to establish an adequate record for mitigation, we
cannot find that the trial court abused its discretion in revoking community control and
imposing sentence.
{¶24} Forncrook’s sole Assignment of Error is overruled.
{¶25} The judgment of the Licking County Court of Common Pleas is affirmed.
By: Gwin, P.J.,
Delaney, J., and
King, J., concur