State v. Baker ( 2024 )

[Cite as State v. Baker, 2024-Ohio-1644.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES:
: Hon. Craig R. Baldwin, P.J.
Plaintiff - Appellee : Hon. W. Scott Gwin, J.
: Hon. John W. Wise, J.
-vs- :
:
ZACKARY BAKER, : Case No. CT2023-0076
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County
Court of Common Pleas, Case No.
CR2023-0349
JUDGMENT: Affirmed
DATE OF JUDGMENT: April 29, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RONALD L. WELCH CHRIS BRIGDON
Prosecuting Attorney 8138 Somerset Rd
Muskingum County, Ohio Thornville, Ohio 43076
By: JOHN CONNOR DEVER
Assistant Prosecuting Attorney
Muskingum County, Ohio
27 North Fifth St., P.O. Box 189
Zanesville, Ohio 43702
Muskingum County, Case No. CT2023-0076 2
Baldwin, J.
{¶1} The appellant, Zackary Baker, appeals his sentence imposed after being
found guilty of Tampering with Evidence in violation of R.C. §2921.12(A)(1). The appellee
is the State of Ohio.
STATEMENT OF THE FACTS AND THE CASE
{¶2} On May 31, 2023, the appellant was indicted in Muskingum County for one
count of Rape in violation of R.C. §2907.02, two counts of Gross Sexual Imposition in
violation of R.C. §2907.05, one count of Disseminating Matter Harmful to Juveniles in
violation of R.C. §2907.31, and one count of Tampering with Evidence in violation of R.C.
§2921.12(A)(1).
{¶3} On August 15, 2023, the matter proceeded to a jury trial.
{¶4} On August 16, 2023, the jury returned a verdict of guilty on the count of
Tampering with Evidence in violation of R.C. §2921.12(A)(1) and not guilty on the
remaining counts.
{¶5} On October 2, 2023, the trial court held a hearing on sentencing. At the
sentencing hearing, the minor victim and accompanying family were present. He received
the victim impact statement on how conviction on the Tampering with Evidence charge
has affected both the child and the child’s family.
{¶6} At the hearing, the State advocated for the maximum sentence as the
appellant’s tampering with evidence hampered the effective prosecution of the case.
Muskingum County, Case No. CT2023-0076 3
{¶7} The appellant’s counsel then argued that the appellant is twenty-four years
old, has no criminal record, is gainfully employed, has two children, and had no issues
while out on bond. Counsel then asked for community control.
{¶8} The trial court noted that the appellant instructed the victim to delete internet
posts. He was in a position of trust with the victim, the victim was thirteen years old at the
time and the family indicated he had been harmed.
{¶9} The trial court then sentenced the appellant to thirty-six months in prison.
{¶10} The appellant timely filed a notice of appeal and raised the following
Assignment of Error:
{¶11} “I. THE PROPORTIONALITY OF THE SENTENCE WAS INCONSISTENT
WITH THE PRINCIPLES SET FORTH O.R.C. §2929.11 AND FACTORS TO BE
CONSIDERED IN O.R.C. §2929.12.”
STANDARD OF REVIEW
{¶12} A court reviewing a criminal sentence is required by R.C. §2953.08(F) to
review the entire trial court record, including any oral or written statements and
presentence investigation reports. R.C. §2953.08(G)(2) provides we may either increase,
reduce, modify, or vacate a sentence and remand for resentencing where we clearly and
convincingly find that either the record does not support the sentencing court’s findings
under R.C. §2929.13(B) or (D), 2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence
is otherwise contrary to law. See, also, State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-
3177, 16 N.E.2d 659, ¶28.
{¶13} “Clear and convincing proof is that measure or degree of proof which is
more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty
Muskingum County, Case No. CT2023-0076 4
as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in
the mind of the trier of facts a firm belief or conviction as to the facts sought to be
established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three
of the syllabus.
{¶14} A sentence is not clearly and convincingly contrary to law where the trial
court “considers the principles and purposes of R.C. 2929.11, as well as the factors listed
in R.C. 2929.12, properly imposes post release control, and sentences the defendant
within the permissible statutory ranges.” State v. Morris, 5th Dist. Ashland No. 20-COA-
015, 2021-Ohio-2646, ¶90 quoting State v. Dinka, 12th Dist. Warren Nos. CA 2019-03-
022 and CA2019-03-026, 2019-Ohio-4209, ¶36.
{¶15} The trial court must consider the purposes and factors contained in R.C.
§2929.12, but this Court has held that when the transcript of “the sentencing hearing is
silent as to whether the trial court considered the factors in R.C. 2929.11 and 2929.12” a
presumption arises “that a trial court considered the factors contained in R.C. 2929.12.”
State v. Hannah, 5th Dist. Richland No. 15-CA-1, 2015-Ohio-4438, ¶13. Accord State v.
Tenney, 11th Dist. Ashtabula No. 2009-A-0015, 2010-Ohio-6248, ¶14 and State v.
Crawford, 5th Dist. Muskingum No. CT2021-0059, 2022-Ohio-3125, ¶18.
ANALYSIS
{¶16} In the first Assignment of Error, the appellant argues the proportionality of
the sentence was inconsistent with the principles set forth in R.C. §2929.11 and factors
to be considered in R.C. §2929.12. We disagree.
{¶17} This Court may modify the appellant’s sentence only if it “clearly and
convincingly finds that either the record does not support the sentencing court’s findings
Muskingum County, Case No. CT2023-0076 5
under R.C. 2929.13(B) or (D), 2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence
is otherwise contrary to law.” The appellant does not argue that R.C. 2929.13(B) or (D),
2929.14(B)(2)(e) or (C)(4), or 2929.20(I) apply, so we are restricted to consideration of
whether the sentence is otherwise contrary to law.
{¶18} The sentence imposed by the trial court is within the statutory guidelines,
and the appellant does not assert a position to the contrary. Instead, he argues the
minimum sanctions to achieve the purpose of R.C. §2929.11 contradicted the sentence
received and that the court failed to adequately consider mitigating factors such as the
appellant being employed, married with two children, and having no criminal history. The
Supreme Court of Ohio has made clear that R.C. §2953.08(G)(2) does not permit “an
appellate court to modify or vacate a sentence based on its view that the sentence is not
supported by the record under R.C. 2929.11 and R.C. 2929.12” State v. Jones, 163 Ohio
St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649. For that reason, our authority to modify the
sentence would arise only if the appellant demonstrates by clear and convincing evidence
that the sentence is “otherwise contrary to law.”
{¶19} Baker relies on the Supreme Court of Ohio’s decision in State v. Hairston,
118 Ohio St.3d 289, 2008-Ohio-2338, 888 N.E.2d 1073 in which the defendant was
subject to an aggregate sentence of 134 years and complained that the sentence “is
shocking to a reasonable person and to the community’s sense of justice and thus is
grossly disproportionate to the totality of his crimes.” Id. at ¶15. The Court found that
“[b]ecause the individual sentences imposed by the court are within the range of penalties
authorized by the legislature, they are not grossly disproportionate or shocking to a
reasonable person or to the community’s sense of justice * * *.” Id. at ¶23.
Muskingum County, Case No. CT2023-0076 6
{¶20} We reach the same conclusion in the case sub judice as the appellant’s
term is within the statutory range and thus cannot be found to be grossly disproportionate
or shocking to a reasonable person or to the community’s sense of justice. We also find
the sentence is not otherwise contrary to law.
{¶21} Accordingly, the appellant’s sole Assignment of Error is overruled.
CONCLUSION
{¶22} For the forgoing reasons, the judgment of the Court of Common Pleas of
Muskingum County, Ohio, is hereby affirmed.
By: Baldwin, J.
Gwin, P.J. and
Wise, John, J. concur.