State v. Buchanan ( 2018 )

[Cite as State v. Buchanan, 2018-Ohio-1086.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 105706
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ERIC D. BUCHANAN
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-16-605774-A
BEFORE: Jones, J., McCormack, P.J., and Keough, J.
RELEASED AND JOURNALIZED: March 22, 2018
ATTORNEY FOR APPELLANT
Susan J. Moran
55 Public Square, Suite 1616
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Steven N. Szelagiewicz
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:
{¶1} Defendant-appellant Eric Buchanan (“Buchanan”) appeals his convictions for rape,
kidnapping, and felonious assault. He also appeals his sentence and sexual offender
classification. For the following reasons, we affirm.
I. Procedural History and Trial
{¶2} Buchanan was charged in an eight-count indictment with rape, attempted rape,
kidnapping, aggravated robbery, and felonious assault. Each count included a notice of prior
conviction and the following specifications: one- and three-year firearm, repeat violent offender
(“RVO”), sexual motivation, and sexually violent predator.
{¶3} The matter proceeded to a trial by jury with the exception of the sexually violent
predator and repeat violent offender specifications, which were tried to the court. The
following pertinent evidence was presented.
{¶4} On February 18, 2013, 17-year-old D.F. was waiting for the city bus when a man she
did not know approached the bus stop. He stood at the stop for about ten minutes before he
walked closer to D.F. and demanded her purse. D.F. gave the man, later identified as
Buchanan, her purse and cell phone. Buchanan threatened to shoot D.F. if she ran or looked at
him. D.F. testified that she never saw a gun but Buchanan had his hands in his pocket like he
was holding something, so she thought he had a gun.
{¶5} Buchanan told D.F. to stand up so he could see her buttocks. D.F. refused, but
Buchanan threatened to kill her, so she finally complied. She could see out of the corner of her
eye that he was masturbating. Buchanan told D.F. he would give her the purse back but she had
to walk with him because there were too many people around the bus stop. He grabbed her arm
and walked her down a side street. D.F. testified she did not think she could break away from
Buchanan because he held her arm tightly.
{¶6} Buchanan took D.F. to a nearby parked van. He opened the door, forced her inside,
and told her to take her clothes off. D.F. refused, so Buchanan pulled her pants down to her
knees.
{¶7} D.F. saw people walking past the van and tried to knock on the van’s window to
attract their attention. In response, Buchanan punched D.F. in the face, knocking her glasses
off. According to D.F., she lost consciousness. Buchanan then got on top of D.F. and put his
penis in her vagina. D.F. testified that if she did not let Buchanan have sex with her, he would
kill her.
{¶8} When he was finished, Buchanan told D.F. to put her clothes back on and allowed
her to leave the van. D.F. flagged down a city bus and the bus driver drove her to her street.
Once D.F. got off of the bus, she began to run down the street. Her mother and grandmother
met her halfway between the bus and home. By the time they all arrived home, the police and
ambulance were at D.F.’s house. According to D.F., the next thing she remembered was
waking up in the hospital.
{¶9} Sexual Assault Nurse Examiner (“SANE”) Kathleen Goellnitz (“Nurse Goellnitz”)
examined D.F. Nurse Goellnitz noted injuries to D.F.’s face that were consistent with being
punched in the face while wearing glasses. D.F. told the nurse that she had been waiting at the
bus stop when a man took her belongings, threatened to shoot her, took her to his van, punched
her in the eye, and raped her. He did not use a condom.
{¶10} Cleveland Police Officer Timothy McGinty responded to D.F.’s house. She
described her assailant to him as a 27-year old black male, six feet tall, 200 pounds, with a
medium complexion. D.F. said the man wore a brown hat and coat.
{¶11} Christina Lekova (“Lekova”), a DNA analyst with Cuyahoga County Forensic
Science Laboratory, processed D.F.’s rape kit. But when Lekova made the comparison between
D.F.’s DNA standard and the samples in the rape kit, she discovered that D.F.’s sample did not
match the sample in the kit. Lekova explained that meant that something went wrong in the
testing process. Lekova retraced her steps and redid the test. Once the samples were
re-extracted, Lekova explained, she was able to get a DNA profile.
{¶12} Lekova testified that the sample extractions are conducted by a semi-robotic system
and the mistake occurred either because the initial tubes were not loaded in the correct order or
the final order of the tubes was not correct. According to Lekova, the tubes were labeled
correctly, but were not in the correct order. Lekova explained that the mistake did not affect the
final results because she repeated the entire process and the reported results were based on the
second test.
{¶13} Dr. Nasir Butt (“Dr. Butt”), the DNA unit supervisor, testified that after Lekova
discovered an error in the testing process, the lab took corrective action by redoing the test. He
explained that during the corrective action, the lab analyst tries to narrow down where the
mistake may have occurred. Once the mistake is identified, the analyst discards the entire
original batch of sample and the lab does not use any data from that batch. In situations such as
these, Dr. Butt testified, he monitors the activity of the analyst to ensure the mistake is not
repeated. Dr. Butt also testified that any mistake with the original testing would not have an
effect on the final result.
{¶14} Lekova testified that the results of the second test produced an unknown profile,
which meant there was someone else’s DNA in the sample. Lekova testified that when this
happens, she requests reference samples from the police so a comparison can be made. In this
case, the unknown profile came from a sperm fraction of D.F.’s vaginal swab and anal swab.
{¶15} Cleveland police sex crimes detective Richard Durst (“Detective Durst”) was
assigned to the case. He interviewed D.F. at the police station and noted that she appeared
upset, nervous, and afraid. The detective developed Buchanan as a suspect through “various
leads,” and interviewed him. Buchanan denied having sex with D.F. Detective Durst obtained
buccal swabs from Buchanan. The reference sample from Buchanan matched the unknown
profile in D.F.’s rape kit.
{¶16} D.F. testified she slept with her grandmother for five months after the rape.
D.F.’s mother testified that after the rape her daughter became angry, depressed, frustrated, and
lonely.
{¶17} After the state’s presentation of evidence, defense counsel requested an acquittal of
charges pursuant to Crim.R. 29. One count of felonious assault was dismissed. The jury
subsequently convicted Buchanan of two counts of kidnapping, one count of rape, and one count
of felonious assault. The jury acquitted Buchanan of aggravated robbery. The jury convicted
him of the accompanying sexual motivation specifications but acquitted him of all firearm
specifications. The trial court acquitted Buchanan of the sexually violent predator
specifications.
{¶18} At the sentencing hearing, the court determined that the two kidnapping
convictions merged for the purposes of sentencing, but the rape and kidnapping convictions did
not merge. The court further found that the remaining count of felonious assault and the rape
conviction would not merge. The court sentenced Buchanan to 11 years for rape and an
additional 10 years on the RVO specification, 9 years for kidnapping, and 6 years for felonious
assault. The court determined that the felonious assault sentence would run concurrent with the
rape conviction but the kidnapping would run consecutive to the rape, for a total sentence of 30
years in prison. The court classified Buchanan as a Tier III sex offender.
II. Assignments of Error
{¶19} Buchanan filed a timely notice of appeal and raises five assignments of error for
our review:
I: The trial court erred by denying Appellant’s motion for acquittal pursuant to
Crim.R. 29 when the State failed to submit sufficient evidence for the essential
elements of the crime charged, denying the Appellant of due process.
II: Appellant’s convictions are against the manifest weight of the evidence.
III: The trial court committed prejudicial error and/or plain error in violation of
the double jeopardy clause of the United States Constitution and Section 10,
Article I, of the Ohio Constitution when it failed to merge rape and kidnapping as
they were allied offenses of similar import and were committed with the same
animus.
IV: The trial court erred in imposing consecutive sentences as such a sentence
was not supported by the record.
V: The trial court erred in imposing a 10-year repeat violent offender
specification.
III. Law and Analysis
{¶20} In the first assignment of error, Buchanan contends that there was insufficient
evidence to support his convictions.
{¶21} Sufficiency of the evidence is a legal standard that tests whether the evidence is
legally adequate to support a verdict. State v. Thompkins, 78 Ohio St. 3d 380, 386, 678 N.E.2d
541 (1997). In determining whether the evidence is legally sufficient to support a conviction,
“‘[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime proven
beyond a reasonable doubt.”’ State v. Robinson, 124 Ohio St. 3d 76, 2009-Ohio-5937, 919
N.E.2d 190, ¶ 34, quoting State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492 (1991), paragraph
two of the syllabus. A verdict will not be disturbed unless, after viewing the evidence in a light
most favorable to the prosecution, it is apparent that reasonable minds could not reach the
conclusion reached by the trier of fact. State v. Treesh, 90 Ohio St. 3d 460, 484, 739 N.E.2d 749
(2001).
{¶22} In a sufficiency of the evidence inquiry, appellate courts do not assess whether the
prosecution’s evidence is to be believed but whether, if believed, the evidence supports the
conviction. State v. Yarbrough, 95 Ohio St. 3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 79-80
(evaluation of witness credibility not proper on review for sufficiency of evidence). Further, the
testimony of “one witness, if believed by the jury, is enough to support a conviction.” State v.
Strong, 10th Dist. Franklin No. 09AP-874, 2011-Ohio-1024, ¶ 42.
{¶23} Buchanan argues that there was insufficient evidence to convict him of felonious
assault, in violation of R.C. 2903.11(A)(1), which provides that “[n]o person shall knowingly * *
* cause serious physical harm to another or to another’s unborn.” He claims that the state failed
to provide sufficient evidence that D.F. suffered serious physical harm. We disagree.
{¶24} Serious physical harm is defined in R.C. 2901.01(A)(5) as:
(a) Any mental illness or condition of such gravity as would normally require
hospitalization or prolonged psychiatric treatment;
(b) Any physical harm that carries a substantial risk of death;
(c) Any physical harm that involves some permanent incapacity, whether partial
or total, or that involves some temporary, substantial incapacity;
(d) Any physical harm that involves some permanent disfigurement or that
involves some temporary, serious disfigurement;
(e) Any physical harm that involves acute pain of such duration as to result in
substantial suffering or that involves any degree of prolonged or intractable pain.
{¶25} A loss of consciousness, irrespective of its duration, satisfies the requirements for a
temporary, substantial incapacity. State v. Chambers, 8th Dist. Cuyahoga No. 99864,
2014-Ohio-390, ¶ 23, citing State v. Sales, 9th Dist. Summit No. 25036, 2011-Ohio-2505, ¶ 19;
see also State v. Booker, 2d Dist. Montgomery No. 22990, 2009-Ohio-1039, ¶ 16 (concluding
“temporary unconsciousness constitutes a temporary substantial incapacity, and therefore serious
physical harm”). Thus, a loss of consciousness may amount to serious physical harm even if the
victim only loses consciousness for a short period of time.
{¶26} We do note some inconsistencies in D.F.’s testimony. She testified on direct
examination that she “just laid there” after Buchanan punched her in the face and “let him take
my pants off.” She also testified that after Buchanan raped her, he told her that he had been
watching her for “a while.” But she also testified that the punch rendered her unconscious.
On cross-examination, D.F. stated that she remembered telling the detective that the punch
knocked her unconscious, but, by the time of trial, she could not remember “it happening,” i.e.,
the actual event of falling unconscious. D.F. testified that she would not have told the detective
that she had lost consciousness unless she had, in fact, been punched unconscious:
Defense Counsel: Okay. And were you knocked unconscious, like you told
Detective Durst?
D.F.: Again, I remember saying it, but I do not remember it happening.
Defense Counsel: Well, let me ask you this. Would you have said it if it didn’t
happen?
D.F.: No.
Defense Counsel: Are you sure?
D.F.: I’m positive.
Defense Counsel: So you remember saying it, right?
D.F.: Yes.
Defense Counsel: I’m just asking you, you didn’t tell [the prosecutor] about that
earlier, that he had hit you so hard that it knocked you unconscious, right?
D.F.: Yes.
Defense Counsel: And you remember saying that, but you don't know, or
remember whether or not it actually occurred?
D.F.: Yes, because in the process of us being in the van and it happening, I
remember getting hit, and after that, I don’t remember anything happening after
that, and leaving the van.
{¶27} On redirect, the state inquired:
Prosecutor: * * * [Y]ou remember saying that you were telling Detective Durst
that you were knocked out?
D.F.: Yes.
Prosecutor: Would you have made that up?
D.F.: No.
Prosecutor: And that was much closer in time to when this happened, right?
D.F.: Yes.
{¶28} Buchanan went to trial four years after the rape occurred. By that time, D.F. did
not remember that she had fallen unconscious. But she also testified that she would not have
made it up; thus, it was her belief at the time she gave her statement to police that the punch had
rendered her unconscious.
{¶29} Looking at the evidence in a light most favorable to the state, we find that the state
provided sufficient evidence of the element of “serious physical harm.”
{¶30} Accordingly, the first assignment of error is overruled.
{¶31} In the second assignment of error, Buchanan claims that his convictions were
against the manifest weight of the evidence.
{¶32} A court’s function when reviewing the weight of the evidence is to determine
whether competent, credible evidence allows a reasonable trier of fact to conclude that the state
established all of the essential elements of the offense beyond a reasonable doubt. Thompkins,
78 Ohio St. 3d at 387, 678 N.E.2d 541; State v. Getsy, 84 Ohio St. 3d 180, 193-94, 702 N.E.2d
866 (1998). To undertake such a review, the appellate court sits as a “thirteenth juror” and
reviews the entire record, weighs the evidence and all reasonable inferences, considers the
credibility of the witnesses, and determines whether the trier of fact clearly lost its way and
created a manifest miscarriage of justice. Thompkins at id., citing State v. Martin, 20 Ohio
App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). Under this standard of review, an appellate
court’s discretionary authority “should be exercised only in the exceptional case in which the
evidence weighs heavily against the conviction.” Martin at id.
{¶33} Buchanan contends that his conviction for felonious assault should be overturned
because there was testimony that would support the conclusion that D.F. never lost
consciousness.
{¶34} As mentioned under the first assignment of error, D.F. testified that she was
knocked unconscious by Buchanan and that she did not remember some things as a result of the
punch. D.F. testified on direct examination as to what happened after she was punched. On
cross-examination, D.F. testified that she could not remember what happened after she was
punched until she left the van. D.F. clarified this apparent contradiction by explaining that she
remembered only “bits and pieces” of the assault, but would not have told the detective she had
lost consciousness unless she had, in fact, lost consciousness. Thus, a reasonable jury could
conclude that D.F. lost consciousness and suffered serious physical harm.
{¶35} Buchanan also argues that the question of identity is at issue because D.F. could
not pick him out of a photo lineup and the DNA lab’s test result were compromised due to
mistakes by the lab technician.
{¶36} Although D.F. could not pick Buchanan out of a photo lineup, she positively
identified Buchanan in court as the man who kidnapped and raped her. In State v. Shields, 8th
Dist. Cuyahoga Nos. 39593 and 40794, 1979 Ohio App. LEXIS 11094 (Nov. 8, 1979), the
defendant argued that the trial court erred in admitting an in-court identification by the victim
because the victim was unable to positively identify the defendant in a lineup. Id. at 7. The
defendant argued that state failed to present evidence that independently identified him. The
trial court disagreed and held that the fact that the victim had seen the defendant during the
commission of the crime constituted an independent basis for the in-court identification. Id.
{¶37} In this case, D.F. testified that she was unable to identify Buchanan in a photo
lineup, but was able to identify him in court. We find that D.F.’s inability to make a positive
identification at the lineup affects the weight but not the admissibility of her in-court
identification. See id. at 7 – 8. The jury heard D.F. testify as to her identification and it was
up to the jury to decide what weight to give to her testimony.
{¶38} As to Buchanan’s second contention, that the DNA test was flawed, Lekova
testified that she had to take corrective action after she discovered an error in the original
sampling of D.F.’s rape kit. Lekova testified that the tubes from the rape kit were labeled
correctly, but were put in the incorrect order. Once she discovered the error, she started the
entire sampling and analysis over again.
{¶39} Any error with the first test, both Lekova and Dr. Butt testified, did not affect the
second test. Moreover, neither test included Buchanan’s DNA reference sample.
{¶40} Finally, Buchanan states that his convictions are against the manifest weight of the
evidence because Detective Durst (1) lied to the grand jury in another case and (2) initially told
Buchanan that D.F. was 14, not her actual age of 17.
{¶41} During cross-examination, counsel asked Detective Durst if there were other
instances, unrelated to this present case, where he had been under oath and “made a mistake, or
said something that was inaccurate.” Detective Durst answered that he had. Counsel then
asked if he had sworn out an arrest warrant in the present case that indicated that Buchanan
forced D.F. into his car at gunpoint. Detective Durst again answered that he had. Defense
counsel asked no follow-up questions related to the other case.
{¶42} On redirect, the detective clarified that he stated in his affidavit for an arrest
warrant that D.F. had been held up at gunpoint because, based on the way D.F. explained the
assault to him, he thought she actually saw Buchanan with a gun; “she told me in the interview
she thought that he had a gun.”
{¶43} During cross-examination, the detective also admitted he originally asked
Buchanan if he had sex with a 14-year-old girl in his van, when the detective knew that D.F. was
almost 18. Detective Durst explained that it is common to lie during interrogations to see what
a suspect’s response will be or in an attempt to get a suspect to make an admission.
{¶44} This court gives great deference to the factfinder’s determination of the witnesses’
credibility. See State v. Williams, 10th Dist. Franklin No. 02AP-35, 2002-Ohio-4503, ¶ 58.
To that end, the factfinder is free to believe all, part, or none of the testimony of each witness
appearing before it. State v. Raver, 10th Dist. Franklin No. 02AP-604, 2003-Ohio-958, ¶ 21.
Mere disagreement over the credibility of witnesses is not sufficient reason to reverse a
judgment. State v. Wilson, 113 Ohio St. 3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24.
{¶45} Detective Durst was thoroughly cross-examined about his investigatory techniques.
The jury was free to consider his testimony and determine what weight to give to it. Nothing
in the record indicates the jury lost its way in finding that Buchanan was guilty beyond a
reasonable doubt. In fact, the jury acquitted Buchanan of aggravated robbery and all
weapons-related specifications.
{¶46} In light of the above, the second assignment of error is overruled.
{¶47} In the third assignment of error, Buchanan contends that the trial court erred in
failing to merge his rape and kidnapping convictions for the purpose of sentencing.
{¶48} R.C. 2941.25(A) provides that “[w]here the same conduct by defendant can be
construed to constitute two or more allied offenses of similar import, the indictment or
information may contain counts for all such offenses, but the defendant may be convicted of only
one.” However,
[w]here the defendant’s conduct constitutes two or more offenses of dissimilar
import, or where his [or her] conduct results in two or more offenses of the same
or similar kind committed separately or with a separate animus as to each, the
indictment or information may contain counts for all such offenses, and the
defendant may be convicted of all of them.
R.C. 2941.25(B).
{¶49} Buchanan argues his rape and kidnapping convictions were allied offenses of
similar import that should have merged for sentencing because they involved the same conduct.
However, in State v. Ruff, 143 Ohio St. 3d 114, 2015-Ohio-995, 34 N.E.3d 892, the Ohio
Supreme Court explained that an allied offenses analysis is not limited to just a consideration of
the defendant’s conduct. The Ruff court held that while an allied offenses analysis begins with
an examination of the defendant’s conduct, courts must also consider whether (1) the offenses are
dissimilar in import or significance, (2) the offenses were committed separately, or (3) the
offenses were committed with separate animus or motivation. Id. at paragraph three of the
syllabus, citing R.C. 2941.25(B). Two or more offenses are of dissimilar import within the
meaning of R.C. 2941.25(B) “when the defendant’s conduct constitutes offenses involving
separate victims or if the harm that results from each offense is separate and identifiable.” Id. at
paragraph two of the syllabus.
{¶50} The Ohio Supreme Court has recognized that “implicit within every forcible rape *
* * is a kidnapping” because the victim’s liberty is restrained during the act of forcible rape.
State v. Logan, 60 Ohio St. 2d 126, 130, 397 N.E.2d 1345 (1979). The Logan court provided the
following guidelines for determining whether rape and kidnapping are allied offenses that should
merge for sentencing:
(a) Where the restraint or movement of the victim is merely incidental to a
separate underlying crime, there exists no separate animus sufficient to sustain
separate convictions; however, where the restraint is prolonged, the confinement
is secretive, or the movement is substantial so as to demonstrate a significance
independent of the other offense, there exists a separate animus as to each offense
sufficient to support separate convictions;
(b) Where the asportation or restraint of the victim subjects the victim to a
substantial increase in risk of harm separate and apart from that involved in the
underlying crime, there exists a separate animus as to each offense sufficient to
support separate convictions.
Id. at the syllabus.
{¶51} Both the state and Buchanan cite numerous cases to support their respective
position and our research reveals several more. Buchanan cites to our recent decision in State v.
Lundy, 8th Dist. Cuyahoga No. 105117, 2017-Ohio-9155, where the defendant forced the victim
to move from a bus stop to a nearby yard where he raped her. He then let her go. This court
found that the trial court erred when it failed to merge the kidnapping and rape convictions
because the defendant’s act of moving the victim from the bus stop to the nearby yard was brief,
the movement was slight, and he released the victim immediately after the rape. This court
noted the location the defendant removed the victim to was not “particularly secretive.” Id. at ¶
33.
{¶52} In State v. Asadi-Ousley, 8th Dist. Cuyahoga No. 104267, 2017-Ohio-7252, ¶ 47,
the defendant removed the victim from the sidewalk to a nearby alleyway where he raped her.
Although the alleyway was not far from where the victim had been walking, the defendant
knocked the victim unconscious. We concluded that the movement from the sidewalk to the
alleyway was not “prolonged,” or “substantial enough to demonstrate a separate animus for
kidnapping apart from the rape under Logan.” Id. at ¶ 51. However, the offenses did not
merge because the defendant subjected the victim to an increased risk of harm that was separate
and apart from the rape by knocking the victim unconscious. Id. at ¶ 52.
{¶53} In State v. Lawson, 8th Dist. Cuyahoga No. 90589, 2008-Ohio-5590, the defendant
lured the victim outside the rapid station and robbed her before forcefully walking her through a
parking lot, across a street, and behind a store where he raped the victim. This court found that
the duration and distance from the rapid station to the store showed that the defendant committed
the offenses of rape and kidnapping with separate animus. Id. at ¶ 39.
{¶54} In this case, D.F. testified that Buchanan waited at the bus stop for ten minutes
before approaching her. He approached her and robbed her of her money, purse, and cell phone.
Then he told her to stand up so he could see her buttocks and threatened to kill her when she
refused. She noticed he was masturbating. Buchanan told her that she could have her stuff
back “but it was too many people, so he grabbed my arm, and he walked me down the side
street” to where his van was parked in front of a blue house. After they got to the van,
Buchanan opened the door and pushed D.F. into the van. He told her to take off her clothes.
When she refused, Buchanan “forcefully took my pants off down to my knees.” D.F. tried to
get the attention of people walking by knocking on the van windows, but Buchanan punched her
in the face, knocking her glasses off and rendering her unconscious.
{¶55} After the rape, Buchanan let D.F. go and she ran toward the bus stop. She was
able to get the bus to stop for her by running in front of the bus.
{¶56} Based on the above, we find that the kidnapping and rape were separate crimes
performed with a separate animus. Buchanan forced D.F. to go to a secretive location, his van,
and then forced her inside where he raped her. This coupled with the punch to the face that
caused her to lose consciousness is ample support for the trial court to find that the kidnapping
and the rape were separate and distinct crimes.
{¶57} The third assignment of error is overruled.
{¶58} Because Buchanan’s fourth and fifth assignments of error both address his
sentence, they are addressed together. In the fourth assignment of error, Buchanan argues that
the trial court erred by failing to consider the minimum sentence and in sentencing him to
consecutive sentences. In the fifth assignment of error, Buchanan claims the court erred in
imposing a ten-year sentence for the RVO specification.
{¶59} When reviewing Buchanan’s felony sentence, this court may increase, reduce,
modify a sentence, or vacate and remand for resentencing if we clearly and convincingly find that
the record does not support the sentencing court’s statutory findings under R.C. 2929.14(B)(2),
or the sentence is contrary to law. R.C. 2953.08(G)(2). A sentence is contrary to law if (1) the
sentence falls outside the statutory range for the particular degree of offense, or (2) the trial court
failed to consider the purposes and principles of felony sentencing set forth in R.C. 2929.11 and
the sentencing factors in R.C. 2929.12. State v. Hinton, 8th Dist. Cuyahoga No. 102710,
2015-Ohio-4907, ¶ 10, citing State v. Smith, 8th Dist. Cuyahoga No. 100206, 2014-Ohio-1520, ¶
13.
{¶60} Courts have “full discretion” to impose a sentence within the applicable statutory
range. State v. Collier, 8th Dist. Cuyahoga No. 95572, 2011-Ohio-2791, ¶ 15, citing State v.
Foster, 109 Ohio St. 3d 1, 2006-Ohio-856, 845 N.E.2d 470, paragraph seven of the syllabus.
Therefore, a sentence imposed within the statutory range is “presumptively valid” if the court
considered the applicable sentencing factors. Id.
{¶61} Buchanan contends that the court failed to consider the minimum sentence
necessary under R.C. 2929.11(A). R.C. 2929.11(A) provides:
A court that sentences an offender for a felony shall be guided by the overriding
purposes of felony sentencing. The overriding purposes of felony sentencing are
to protect the public from future crime by the offender and other and to punish the
offender using the minimum sanctions that the court determines accomplish those
purposes without imposing an unnecessary burden on state or local government
resources. To achieve those purposes, the sentencing court shall consider the
need for incapacitating the offender, deterring the offender and others from future
crime, rehabilitating the offender, and making restitution of the victim of the
offense, the public, or both.
{¶62} This court has held that “[a]lthough the trial court must consider the principles and
purposes of sentencing as well as the mitigating factors, the court is not required to use particular
language or make specific findings on the record regarding its consideration of those factors.”
State v. Carter, 8th Dist. Cuyahoga No. 103279, 2016-Ohio-2725, ¶ 15.
{¶63} The trial court stated at the sentencing hearing and in the sentencing journal entry
that it considered the required statutory factors and the record confirms the trial court did
consider those factors and the principles and purposes of sentencing.
{¶64} Buchanan further contends that the trial court failed to comply with the
requirements of R.C. 2929.14(C)(4) in imposing consecutive sentences. We find no merit to
this argument.
{¶65} “[T]o impose consecutive terms of imprisonment, a trial court is required to make
the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate its
findings into its sentencing entry * * *.” State v. Bonnell, 140 Ohio St. 3d 209,
2014-Ohio-3177, 16 N.E.3d 659, ¶ 37. Pursuant to R.C. 2929.14(C)(4), the court must find
consecutive sentences are “necessary to protect the public from future crime or to punish the
offender”; “not disproportionate to the seriousness of the offender’s conduct and to the danger
the offender poses to the public”; and at least one of the following three factors:
(a) The offender committed one or more of the multiple offenses while the
offender was awaiting trial or sentencing, was under a sanction * * *, 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.
{¶66} In this case, the trial court indicated the reasons for consecutive sentences during
the sentencing hearing and included them in the sentencing journal entry. The trial court stated
in relation to the kidnapping conviction running consecutive to the rape conviction:
[T]he court makes * * * the findings * * * to that consecutive sentences are * * *
necessary to protect the public from future crime and to punish the offender and
that the consecutive sentences are not disproportionate to the seriousness of the
offender’s conduct and to the danger the offender poses to the public.
And there are some components that I have to find, any one of the three. One, in
this situation is that the offender’s criminal history and conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime from
the offender.
{¶67} The trial court stated that it took into account Buchanan’s criminal history and, as a
result, found that a consecutive sentence was the most appropriate sanction to protect the public.
After a review of the record, we find that the trial court stated its findings pursuant to R.C.
2929.14(C)(4), and, therefore, did not err in sentencing Buchanan to consecutive sentences.
{¶68} Buchanan also contends that his sentence is contrary to law because the trial court
erred in enhancing his sentence under the RVO specification without making the requisite
statutory findings. Specifically, he contends that the record does not establish the criteria set
forth in R.C. 2929.14(B)(2). We disagree.
{¶69} Under certain circumstances, which do not apply to this case, RVO sentencing is
mandatory. See R.C. 2929.14(B)(2)(b). Buchanan qualified as a RVO under R.C.
2929.14(B)(2)(a):
(a) If division (B)(2)(b) of this section does not apply, the court may impose on an
offender, in addition to the longest prison term authorized or required for the
offense, an additional definite prison term of one, two, three, four, five, six, seven,
eight, nine, or ten years if all the following criteria are met:
(i) The offender is convicted of * * * a specification of the type described in
section 2941.149 of the Revised Code that the offender is a repeat violent
offender.
(ii) The offense of which the offender currently is convicted * * * is * * * any
felony of the first degree that is an offense of violence and the court does not
impose a sentence of life imprisonment without parole, or any felony of the
second degree that is an offense of violence and the trier of fact finds that the
offense involved an attempt to cause or a threat to cause serious physical harm to
a person or resulted in serious physical harm to a person.
(iii) The court imposes the longest prison term for the offense that is not life
imprisonment without parole.
(iv) The court finds that the prison terms imposed pursuant to division
(B)(2)(a)(iii) of this section * * * are inadequate to punish the offender and protect
the public from future crime, because the applicable factors under section 2929.12
of the Revised Code indicating a greater likelihood of recidivism outweigh the
applicable factors under that section indicating a lesser likelihood of recidivism.
(v) The court finds that the prison terms imposed pursuant to division
(B)(2)(a)(iii) of this section * * * are demeaning to the seriousness of the offense,
because one or more of the factors under section 2929.12 of the Revised Code
indicating that the offender’s conduct is more serious than conduct normally
constituting the offense are present, and they outweigh the applicable factors
under that section indicating that the offender’s conduct is less serious than
conduct normally constituting the offense.
{¶70} Buchanan was convicted of rape, felonious assault, and kidnapping. He stipulated
to his previous conviction. The trial court sentenced Buchanan to the maximum term on the
rape charge. In satisfying the “recidivism and seriousness findings” under section R.C.
2929.14(B)(2)(a)(iv) and (v), the trial court stated:
On the RVO specification, the situation, as I view it with regard to Mr. Buchanan,
that the full amount needs to be imposed because the sentence of just rape is
inadequate to punish the offender and to protect the public from future crime.
There’s a greater likelihood of recidivism, and the applicable factors with regard
to the seriousness of his conduct [are] greater than the factors dealing with the less
serious aspects of his conduct with regard to this charge.
{¶71} The trial court further stated: “Mr. Buchanan, just in closing, I think the
maximum sentences on the RVO and the rape given the circumstances with the felonious assault
and the kidnapping were obviously warranted and justifiable or I would not have made the
finding.”
{¶72} There are no magic words the trial court is required to recite when making RVO
findings under R.C. 2929.14(B)(2)(a). State v. Watts, 8th Dist. Cuyahoga No. 104269,
2017-Ohio-532, ¶ 11. As long as the reviewing court can discern from the record that the trial
court engaged in the correct analysis and can determine that the record contains evidence to
support the findings, the sentence on the RVO specification should be upheld. Id. at ¶ 12.
{¶73} Upon review of the record, this court concludes that the trial court considered the
appropriate recidivism and seriousness factors, made the required findings, gave the necessary
reasons for its findings, and properly applied the statutory guidelines before sentencing Buchanan
to an additional ten years on the repeat violent offender specification. Accordingly, we clearly
and convincingly find that the record supports the sentence, and that the sentence is not contrary
to law.
{¶74} The fourth and fifth assignments of error are overruled.
{¶75} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas
court to carry this judgment into execution. The defendant’s convictions having been affirmed,
any bail pending appeal is terminated. Case remanded to the trial court for execution of
sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
LARRY A. JONES, SR., JUDGE
TIM McCORMACK, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR