State v. Gilbert ( 2021 )

[Cite as State v. Gilbert, 2021-Ohio-2810.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, : CASE NO. CA2020-11-116
Appellee, : OPINION
8/16/2021
:
- vs -
:
BRANDON LEVI GILBERT, :
Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2018-10-1746
Michael T. Gmoser, Butler County Prosecuting Attorney, and Stephen M. Wagner, Assistant
Prosecuting Attorney, for appellee.
Repper-Pagan Law, Ltd., and Christopher J. Pagan, for appellant.
M. POWELL, J.
{¶ 1} Appellant, Brandon Levi Gilbert, appeals the consecutive nature of his
sentence imposed by the Butler County Court of Common Pleas.
{¶ 2} Appellant was indicted in October 2018 on two counts of kidnapping and one
count each of rape, attempted rape, and felonious assault. The state alleged that in the
early morning hours of September 29, 2018, appellant repeatedly struck the victim in the
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side of her head, restrained her liberty, engaged in digital penetration, and attempted to
engage in vaginal intercourse. As a result of the assault, the victim suffered serious injuries,
including a perforated eardrum, a fractured jaw, hearing loss, and severe and lasting pain.
Pursuant to plea negotiations, appellant pled guilty to gross sexual imposition ("GSI"),
abduction, and felonious assault, all felony offenses.
{¶ 3} A sentencing hearing was conducted on November 4, 2020. The GSI and
abduction offenses were merged as allied offenses of similar import, and the state elected
to proceed on the GSI offense. The trial court was presented with the responding police
officer's body camera recording which showed the victim's account of what had just
occurred and appellant's subsequent interaction with police. The court was also presented
with the victim's medical records containing her account of the offenses and documenting
the perforated eardrum and fractured jaw she suffered during appellant's commission of the
offenses. The trial court heard from the victim's parents and stepmother who recounted the
victim's post-assault struggle with anxiety and mental health issues. The trial court also
heard from appellant's mother who recounted appellant's history of sports-related
concussions and his chronic substance abuse. The state advised the trial court that
appellant was charged with OVI in August 2018 and that he had been released from jail
pending trial on the OVI charge when he committed the instant offenses in September 2018.
Appellant declined to exercise his right to allocution.
{¶ 4} The trial court sentenced appellant to three years in prison for the felonious
assault offense and 12 months in prison for the GSI offense and ordered that the prison
terms be served consecutively. During the sentencing hearing, the trial court specifically
found that consecutive sentences (1) were necessary to protect the public from future crime
and punish appellant, and (2) were not disproportionate to the seriousness of appellant's
conduct and to the danger posed by appellant. R.C. 2929.14(C)(4). The trial court further
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found that appellant committed the offenses while he was awaiting trial on the OVI charge,
and that the harm caused by appellant's offenses was so great or unusual that no single
prison term for any of the offenses committed as a single course of conduct adequately
reflected the seriousness of appellant's conduct. R.C. 2929.14(C)(4)(a) and (b). The trial
court's consecutive-sentence findings were incorporated into the sentencing entry.
{¶ 5} Appellant appeals his sentence, raising one assignment of error:
{¶ 6} THE TRIAL COURT ERRED BY IMPOSING A CONSECUTIVE SENTENCE.
{¶ 7} Appellant argues the trial court erred in imposing a consecutive sentence,
presenting two issues for review.
{¶ 8} An appellate court reviews felony sentences pursuant to the standard of
review set forth in R.C. 2953.08(G)(2). 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 the appellate court finds 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. Singh, 12th Dist. Warren No. CA2020-09-056, 2021-
Ohio-2158, ¶ 43.
{¶ 9} 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, properly imposes
postrelease control, and sentences a defendant within the permissible statutory range.
State v. Oliver, 12th Dist. Clermont No. CA2020-07-041, 2021-Ohio-2543, ¶ 78.
{¶ 10} 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. Singh, 2021-
Ohio-2158 at ¶ 45. First, the trial court must find that the consecutive sentence is necessary
to protect the public from future crime or to punish the offender. Id. Second, the trial court
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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:
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.
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.
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).
{¶ 11} "In order to 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, ¶ 37. While the trial court is not required to give reasons explaining these
findings, it must be clear from the record that the court engaged in the required sentencing
analysis and made the requisite findings. Singh at ¶ 46.
{¶ 12} In his first issue for review, appellant argues that the trial court erred in finding
that appellant's pending OVI charge is a consecutive-sentence factor under R.C.
2929.14(C)(4)(a). Appellant asserts that the "awaiting trial" phrase in R.C. 2929.14(C)(4)(a)
is ambiguous, and subject to the rule of lenity, because the phrase may encompass civil
and administrative proceedings in addition to criminal proceedings. Furthermore, it is
unclear whether the "awaiting trial" phrase includes trials for traffic offenses (i.e., a traffic
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trial for OVI). The state directs us to the canon of statutory construction noscitur a sociis.
{¶ 13} The rule of lenity is a principle of statutory construction codified in R.C.
2901.04(A), which provides in relevant part that "sections of the Revised Code defining
offenses or penalties shall be strictly construed against the state, and liberally construed in
favor of the accused." The rule of lenity applies where there is an ambiguity in a statute,
meaning two reasonable ways of reading the statute, or a conflict between statutes. State
v. Young, 12th Dist. Warren No. CA2014-05-074, 2015-Ohio-1347, ¶ 48; State v. Rupp,
12th Dist. Preble No. CA2012-11-014, 2013-Ohio-1847, ¶ 15. Absent ambiguity, the rule
of lenity is not applicable to guide statutory interpretation. State v. Elmore, 122 Ohio St.3d
472, 2009-Ohio-3478, ¶ 40. The rule comes into operation at the end of the process of
construing what the legislature has expressed, not at the beginning. Id.{¶ 14} The "awaiting trial" phrase in R.C. 2929.14(C)(4)(a) is not defined in the Ohio
Revised Code. "In interpreting a statute, we do not look at each word in isolation but rather
consider the text as a whole." Vossman v. AirNet Sys., Inc., 159 Ohio St.3d 529, 2020-
Ohio-872, ¶ 14. Under the canon of construction known as noscitur a sociis, "words that
are listed together should be understood in the same general sense." Id. at ¶ 19. That is,
"[t]his canon counsels that a word is given a more precise meaning by the neighboring
words with which it is associated." State v. Romage, 138 Ohio St.3d 390, 2014-Ohio-783,
¶ 13. See also Bungard v. Ohio Dept. of Job & Family Servs., 10th Dist. Franklin No. 07AP-
447, 2007-Ohio-6280 (noscitur a sociis directs a court to look to accompanying words to
deduce the undefined word's meaning).
{¶ 15} In construing R.C. 2929.14(C)(4)(a) under the noscitur a sociis canon, we find
that the statute plainly applies to criminal matters. The statute refers to "awaiting trial or
sentencing." "Sentencing" occurs only in the context of a criminal matter. In addition to the
"awaiting trial or sentencing" language, R.C. 2929.14(C)(4)(a) also provides as
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consecutive-sentence factors whether the offender committed the offenses while he or she
"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." R.C. 2929.16,
2929.17, and 2929.18 govern residential, nonresidential, and financial sanctions
respectively. These statutory provisions and postrelease control refer to sanctions imposed
as a consequence of being convicted of a crime. Finally, R.C. 2901.02(G) defines
"offenses" as including felonies and misdemeanors. Pursuant to R.C. 4511.19(G), an OVI
may be a felony or misdemeanor depending upon the offender's prior OVI convictions.
{¶ 16} Whether R.C. 2929.14(C)(4)(a) may apply to noncriminal trials is not
presented in this case. OVI is a criminal offense to which the statute applies. Appellant's
pending OVI charge was therefore properly considered by the trial court.
{¶ 17} However, even assuming arguendo that the trial court erred in finding that
appellant's pending OVI charge was a factor supporting a consecutive sentence under R.C.
2929.14(C)(4)(a), we note that the trial court made an alternative consecutive-sentence
finding under R.C. 2929.14(C)(4)(b) at sentencing and in its sentencing entry. Specifically,
the trial court found that the harm caused by appellant's offenses was so great or unusual
that no single prison term for any of the offenses committed as a single course of conduct
adequately reflected the seriousness of appellant's conduct. The trial court therefore made
the required R.C. 2929.14(C)(4) consecutive-sentence findings at sentencing and in its
sentencing entry.
{¶ 18} In his second issue for review, appellant argues that the record does not
support the trial court's consecutive-sentence findings that (1) a single prison term would
not adequately reflect the seriousness of appellant's crime, (2) a consecutive sentence was
necessary to protect the public from appellant's future crime, and (3) a consecutive
sentence was not disproportionate to the danger appellant posed to the public. Appellant
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claims that the incident was an instance of consensual sex between two impaired
individuals that went too far and that "the relative seriousness of the GSI offense is
diminished by [the victim's] inability to remember it and its momentariness." Appellant
further emphasizes he is 24 years old, has no criminal record, suffers from chronic
substance abuse as well as a neurocognitive disorder resulting from multiple sports-related
concussions, and since the incident, has successfully engaged in addressing and treating
both his disorder and substance abuse. Finally, appellant asserts that any danger he would
pose to the public is mitigated by his mandatory postrelease control once he is released
from prison and the fact he will be required to report and register as a Tier I sex offender
for 15 years.
{¶ 19} Despite appellant's arguments to the contrary, we find that the trial court's
sentencing decision is fully supported by the record. During the sentencing hearing, the
trial court specifically stated it had considered the information contained in the presentence-
investigative report, the statements offered on behalf of appellant and the victim during the
sentencing hearing, and appellant's pretrial services progress report, as well as the
purposes and principles of sentencing, and the seriousness and recidivism factors.
{¶ 20} The trial court noted the seriousness of the offenses, stating it was "fortunate
that [the victim] is such a scrappy person and such a fighter. That she was able to get away
from Mr. Gilbert in regard to this." The trial court further stated,
I watched the videos. I watched the police interaction when they
heard her screams. I think she came up running up to the initial
officer about what had happened. I watched Mr. Gilbert's
reaction with the police officers, especially his initial conduct
with them – his initial reaction that he was out jogging at 3:00 in
the morning wearing dress shoes and jeans[.]
And I'm sure there are two Brandon Gilberts. * * * there's the
Brandon Gilbert that everyone talked about today in court, that
is the kindest, gentlest, would do anything for you person that is
a great friend and a great human being. But there's the second
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– it's almost like the Jekyll and Hyde version. There's the
second Brandon Gilbert that drinks too much, that has
concussion issues, that recognizes there are issues with that
drinking but continues to do that. And then put himself in that
position[.]
In sentencing appellant, the trial court noted the pending OVI charge and appellant's lack
of criminal record, noted appellant's lone positive substance abuse screen in August 2019,
and recognized that appellant's classification as a sex offender is a punishment.
{¶ 21} The record shows that during the commission of the offenses, appellant
repeatedly struck the victim, perforating her eardrum and fracturing her jaw. Thus, the
offenses were serious and their circumstances aggravated. While some parts of the record
tend to mitigate appellant's conduct, they do not alleviate or eliminate all concerns.
Appellant's neurocognitive disorder and substance abuse problems are long-standing and
contributed to his conduct. The record shows that appellant received numerous
concussions as a teenager, resulting in severe migraines and memory loss, and that he
started abusing drugs and alcohol while in high school, eventually recognized he had
substance abuse issues, yet did not address them until after he was charged with assaulting
the victim.
{¶ 22} The victim suffered serious physical injuries at the hands of appellant. During
the sentencing hearing, the victim's parents and stepmother described the psychological
and emotional harm suffered by the victim as a result of appellant's actions, specifically
noting that the victim is traumatized, ridden by anxiety, and "almost commit[ed] suicide" a
couple of times. Such psychological and emotional harm is appropriate for the trial court to
consider when electing to impose consecutive sentences. Oliver, 2021-Ohio-2543 at ¶ 86.
{¶ 23} As stated above, appellant declined to exercise his right to allocution and with
it, the opportunity to express remorse prior to his sentencing. Additionally, the record shows
that appellant never accepted responsibility for his conduct, instead stating during his
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presentence-investigative interview that the victim was a stranger he met on the sidewalk
and that the crime never happened.
{¶ 24} In light of the foregoing, and given the circumstances of the offenses,
appellant's brutality in committing the offenses, the victim's physical harm, and the
psychological and emotional harm she will continue to suffer as a result of appellant's
actions, we find that the imposition of a consecutive sentence is not disproportionate to the
seriousness of appellant's conduct and to the danger he poses to the public. We further
find that the record supports the trial court's findings that a single prison term would not
adequately reflect the seriousness of appellant's crime and that a consecutive sentence is
necessary to protect the public from appellant's future crime. Accordingly, the trial court's
decision to impose consecutive sentences is not clearly and convincingly contrary to law.
{¶ 25} Appellant's assignment of error is overruled.
{¶ 26} Judgment affirmed.
PIPER, P.J., and S. POWELL, JJ., concur.
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