State v. Gibbs , 2022 Ohio 4792 ( 2022 )

[Cite as State v. Gibbs, 2022-Ohio-4792.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY
STATE OF OHIO, CASE NO. 2022-A-0042
Plaintiff-Appellee,
Criminal Appeal from the
-v- Court of Common Pleas
CHRISTOPHER LLOYD GIBBS,
Trial Court No. 2020 CR 00349
Defendant-Appellant.
OPINION
Decided: December 30, 2022
Judgment: Affirmed
Colleen M. O’Toole, Ashtabula County Prosecutor, and Jessica Fross, Assistant
Prosecutor, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-Appellee).
Edward F. Borkowski, Jr., P.O. Box 609151, Cleveland, OH 44109 (For Defendant-
Appellant).
JOHN J. EKLUND, P.J.
{¶1} Appellant, Christopher Gibbs, appeals from the Ashtabula County Court of
Common Pleas. Appellant was convicted of Aggravated Vehicular Homicide in violation
of R.C. 2903.06(A)(2)(a) and (B)(3), a high tier felony of the third degree with a maximum
sentence of 60 months; Failure to Stop After an Accident in violation of R.C.
4549.02(A)(2), a felony of the third degree; and Obstructing Official Business in violation
of R.C. 2921.31(A), a misdemeanor of the second degree.
{¶2} Appellant assigns two errors: first, that his convictions were against the
manifest weight of the evidence where there were no witnesses to the crash and no
physical evidence connecting appellant to the crash, and second, that the trial court
improperly sentenced appellant.
{¶3} After review of the record and the applicable caselaw, we find appellant’s
assignments of error are without merit. Although there was no physical evidence or direct
testimony that appellant was driving the vehicle involved in the fatal accident, appellant
typically drove the vehicle, was seen driving the vehicle that evening, and, contrary to his
assertions, his cell phone data indicated that he was in the area of the crash. Further, the
trial court did not err in sentencing appellant.
{¶4} Therefore, we affirm the judgment of the Ashtabula County Court of
Common Pleas.
Substantive and Procedural History
{¶5} The victim in this matter is Lloyd Gibbs, appellant’s brother. The two lived
five minutes away from each other in Ashtabula County. Appellant lived with his father,
Lloyd L. Gibbs, his father’s girlfriend, Donna, and William Bailey. The Victim lived with his
wife, Julie, and their children.
{¶6} On July 1, 2019, Lloyd had hay that he needed to sell at the market. Lloyd
asked appellant to take the hay to the market and bring back the money from the sale.
{¶7} Julie Gibbs, testified. Julie said that appellant drove a truck most of the time
but that he would also drive a Ford Fusion. Both vehicles were titled in appellant’s father’s
name, Lloyd L. Gibbs. Julie explained that appellant did not have any vehicles titled in his
name because he did not have a driver’s license.
{¶8} Julie said that appellant came to the house three times in the afternoon to
look for his brother Lloyd, who was not at home. On the third visit, appellant left the money
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from the sale of the hay. The receipt for the hay indicated appellant sold it for $250 while
appellant left less than that amount. Julie said that appellant came to the house in the
Fusion two times that evening and the third time he came in the truck.
{¶9} Julie said that Lloyd came home around 10:00 p.m. and shortly thereafter
said he was going to drive to his father’s house. Lloyd L. Gibbs and appellant lived
together. She said that Lloyd drove his motorcycle to the house and did not return after a
few hours. Lloyd did not answer his phone or return texts and she became worried. Julie,
her oldest son Cody, and her nephew Terry left the house to look for Lloyd.
{¶10} As they were driving toward appellant’s house, they saw Lloyd’s motorcycle
lodged in an upright position in the front end of the Fusion. The Fusion’s front end was
wrapped around the motorcycle, up to the motorcycle’s fuel tank. Lloyd was lying in the
middle of the road unresponsive. No one else was present at the scene of the crash.
{¶11} Julie testified that, after seeing her husband’s body in the road, she was
overcome with emotion and Cody drove her home while Terry waited at the scene for
paramedics. Once home, Julie called her father-in-law, Lloyd L. Gibbs, and told him his
vehicle had been involved in an accident. She said that Lloyd L. Gibbs was in Barberton,
Ohio at the time helping his girlfriend move.
{¶12} Julie testified that EMS transported Lloyd to the hospital, where he
remained unconscious for ten days before passing away.
{¶13} Julie’s son, Cody Bowen testified about the events at the scene of the crash.
He also stated that appellant is the person who typically drives the Fusion although it is
registered in Lloyd L. Gibb’s name.
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{¶14} Trooper Jason Hayes responded to the scene. He testified that he took
pictures, measurements, and interviewed witnesses. Hayes said that he contacted the
owner of the vehicle, Lloyd L. Gibbs and determined that he was out of town at the time
of the crash.
{¶15} Hayes described the crash as unusual because the motorcycle had stuck
upright into the front end of the Fusion. He also said that he observed tire marks on the
road caused by the motorcycle indicating an impact, but did not see similar tire marks
caused by the Fusion until just before the vehicles came to a final resting position. Hayes
stated that blood found at the scene had already begun to coagulate, which indicated it
was not fresh.
{¶16} William Bailey testified that both he and appellant regularly drove the
Fusion. He said that Lloyd L. Gibbs only sometimes drove the Fusion. The keys for the
Fusion were kept in the basement near Bailey’s and appellant’s computers.
{¶17} Bailey said that around 10:00 p.m. he was startled when the Fusion pulled
out in a “very rapid manner. I mean, they had the hammer down whenever it peeled out
of the driveway yeah, it made enough noise that I could hear it over my TV and the fan
that was in the window.” After hearing this, Bailey texted appellant “what the hell now???
Be careful whatever that was about[.]” Sixteen minutes later, he texted “what are you
doing??? Let me know something!!!” Bailey later had a phone conversation with appellant.
In that conversation, appellant told Bailey to report the Fusion stolen. At 1:29 a.m.
Appellant texted Bailey that he believed he was being punished by his father and brother
in reference to the hay sale because “apparently I wasn’t supposed to get half the
money…idk[.]”
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{¶18} Lloyd L. Gibbs testified he was out of town on July 1, 2019. He said that he
owned three vehicles, one for his use, the truck for farm use, and the Fusion. He said he
kept his own set of keys for the Fusion and that appellant was responsible for the second
set.
{¶19} Michael Fogle testified he had been at appellant’s house during the day to
play video games. He said appellant left and came back but was acting “nervous, * * *
like just shaky.” He said appellant had the demeanor of somebody who is “trying to hide
something.” He said appellant used the truck to take Fogle back to his home in Geneva
late that evening.
{¶20} The State called Thomas Rice who said he went to appellant’s house
around 10:15 p.m. on July 1, 2019. Appellant was not there but Rice spoke to him on the
phone. Appellant asked Rice to report the Fusion as stolen. Rice did not feel comfortable
doing this. He also said that appellant “sounded frantic, like he really didn’t know what to
do or what to say.” Rice left the house soon after this phone call.
{¶21} Grace Buell testified appellant arrived at her apartment around 11:30. Buell
lived with appellant’s friend, Tyler Barr. Barr was not home at the time appellant came, so
she texted Barr, “Why is Chris here?” Barr responded, “idk” and Buell texted, “He came
to see us he missed us” to which Barr texted, “That’s weird[.]” Buell testified that
appellant’s unannounced presence was “unexpected” and “weird.” She also said
appellant’s demeanor was “more stiff, more alert. Just weird in general. Not his usual self
as any other time he’s come over.” Buell said that appellant stayed the night at their
apartment and was leaving as police officer showed up to arrest him in the parking lot.
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{¶22} Trooper Brian Fox testified as a crash reconstruction expert. Fox observed
the scene after the crash and took measurements of the scene including the grade of the
road, the position of tire marks, and the final resting position of the vehicles. He used
computer programs with these measurements and the information about the make and
model of the vehicle in the crash to generate his report. He stated that the motorcycle
made a single tire mark for 188 feet before the Fusion tire marks began. This indicated
that the Fusion did not begin braking immediately after impact. Fox said that in a typical
crash, braking begins shortly after impact.
{¶23} Doctor Todd Barr, a forensic pathologist working at the Cuyahoga County
Medical Examiner’s office, testified that Lloyd died from multiple blunt force traumas
caused by the motor vehicle accident.
{¶24} Stacy Violi, a forensic scientist from the Ohio Bureau of Criminal
Investigation, testified about her testing of DNA samples taken from the scene of the
crash. She said one of the Fusion’s air bag samples contained too many individuals’ DNA
to differentiate between profiles. Additionally, she stated that the remaining swabs taken
from the airbag did not provide a DNA profile of a sufficient quality for comparison due to
insufficient data. Violi stated she was not surprised by these results because the airbag
samples did not have blood or bodily fluid DNA on them. Instead, the samples were only
touch samples, which prove more difficult to obtain conclusive results. She said that in
her experience, air bag DNA results are often mixed.
{¶25} Alex Nichols, from the Ohio State Highway Patrol intel unit, testified as an
expert in cell phone analysis. Nichols analyzed appellant’s Sprint cell phone data and his
Snap Chat location data. Nichols said that the data from Sprint is limited to estimated
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device locations, meaning that a device can be anywhere within a certain radius of a cell
tower and that a phone might connect to multiple, overlapping tower signals. Nichols
stated that the Sprint cell tower data and the Snap Chat data were consistent with each
other and contributed to the confidence of his opinions.
{¶26} Based on the data he reviewed, Nichols’ opinion was that appellant’s cell
phone was within range of the crash site at the time of the crash. After that, the data
indicates that the phone traveled north, in line with appellant dropping Fogle off and his
trip to Buell’s residence.
{¶27} Finally, the State called Trooper Michael Royko, a criminal investigator with
the Ohio State Highway Patrol. Royko acted as the lead investigator for the crash and
testified about his investigation. Royko said he learned of appellant’s location from Bailey
and went to Buell’s apartment on the morning after the crash. Appellant was still present.
Royko placed appellant in custody and interviewed him. During the interview, appellant
said he had arrived at Buell’s apartment before sunset the night before. On July 1, sunset
was at 9:01 p.m.
{¶28} Royko said that he focused on appellant as the primary suspect during his
investigation. Although he investigated the possibility that the Fusion was stolen, Royko
said that claim was “doubtful.” In order to steal the Fusion, someone would have had to
go
into a house in a very rural setting, go down into the basement,
because based on our investigation we knew that the keys were
down in the basement. Would have to go down into the basement at
a time when somebody was home * * * Then go and steal the vehicle,
drive down Sodom Road and for whatever reason that person who
stole the car would then have to turn around and go back in the
direction that they just stole the vehicle from. It was very unlikely. * *
* [W]e did not think that this was a stolen vehicle.
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{¶29} The State rested its case in chief and appellant called one witness, Robert
Aguero, as an expert witness in the area of cell phone data and forensics. Aguero said
that he owns a company providing cell phone forensics and cell tower data analysis.
{¶30} Aguero analyzed a smaller set of data than Nichols used as the basis for
his analysis. Aguero used “voice activity” cell tower data derived from calls made during
the time frame of the crash. Aguero stated that the cell data from Sprint “is not specific
enough to say the phone is at any one given location. It only gives us broad areas where
a phone could be located.” He said that voice activity is the only way to reliably determine
the location of the phone because it guarantees there has been a connection with the
tower.
{¶31} He also stated that he only analyzed one minute’s worth of Snap Chat
activity “to show how inaccurate the data is.” Aguero said the Snap Chat data revealed
physical impossibilities such as the phone’s location moving 0.9 miles in six seconds. He
did agree that the Snap Chat data could be used to determine a phone’s general location.
{¶32} Aguero conceded that the cell call data both in both expert’s reports
generated the “same mapping on both our maps.” He said that the accident site and
appellant’s house were within the range of the phone’s estimated location at the time of
the crash.
{¶33} The jury found appellant guilty on all counts and the matter was set for
sentencing. At sentencing, the trial court imposed a 60-month sentence for Aggravated
Vehicular Homicide, a 36-month sentence for Failure to Stop After an Accident, and a 90-
day sentence for Obstructing Official Business. The court imposed consecutive sentences
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on the felony convictions and a concurrent sentence on the misdemeanor Obstructing
Official Business for a total sentence of eight years.
{¶34} Appellant timely appealed and raises two assignments of error.
Assignments of Error and Analysis
{¶35} Appellant’s first assignment of error states:
{¶36} “[1.] Appellant’s Convictions Were Against the Manifest Weight of the
Evidence.”
{¶37} Appellant argues that his conviction is against the manifest weight of the
evidence because the State failed to provide direct evidence that he committed the
crimes. Appellant denied being present and there were no (surviving) eyewitnesses to
say that he was driving. Further, DNA evidence from the scene was inconclusive and
appellant presented evidence through an expert witness that cell phone data can only
broadly indicate the location of a phone.
{¶38} “Although a court of appeals may determine that a judgment of a trial court
is sustained by sufficient evidence, that court may nevertheless conclude that the
judgment is against the weight of the evidence.” Thompkins, 78 Ohio St. 3d at 389. Weight
of the evidence concerns “the inclination of the greater amount of credible evidence,
offered in a trial, to support one side of the issue rather than the other. It indicates clearly
to the jury that the party having the burden of proof will be entitled to their verdict, if, on
weighing the evidence in their minds, they shall find the greater amount of credible
evidence sustains the issue which is to be established before them.” (Emphasis sic.) Id.
at 386, quoting Black’s Law Dictionary 1594 (6th Ed.1990).
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{¶39} “When a court of appeals reverses a judgment of a trial court on the basis
that the verdict is against the weight of the evidence, the appellate court sits as a
‘thirteenth juror’ and disagrees with the factfinder’s resolution of the conflicting testimony.”
Id.
{¶40} The reviewing court “weighs the evidence and all reasonable inferences,
considers the credibility of witnesses and determines whether in resolving conflicts in the
evidence, the jury clearly lost its way and created such a manifest miscarriage of justice
that the conviction must be reversed and a new trial ordered. The discretionary power to
grant a new trial should be exercised only in the exceptional case in which the evidence
weighs heavily against the conviction.” Id. at 387, quoting State v. Martin, 20 Ohio App.3d
172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶41} The trier of fact is the sole judge of the weight of the evidence and the
credibility of the witnesses. State v. Landingham, 11th Dist. Lake No. 2020-L-103, 2021-
Ohio-4258, ¶ 22, quoting State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964). The
trier of fact may believe or disbelieve any witness in whole or in part, considering the
demeanor of the witness and the manner in which a witness testifies, the interest, if any
of the outcome of the case and the connection with the prosecution or the defendant. Id.,quoting Antil at 67. This court, engaging in the limited weighing of the evidence introduced
at trial, is deferential to the weight and factual findings made by the jury. State v. Brown,
11th Dist. Trumbull No. 2002-T-0077, 2003-Ohio-7183, ¶ 52, citing Thompkins at 390 and
State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph two of the
syllabus.
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{¶42} A finding that a judgment is supported by the manifest weight of the
evidence necessarily means the judgment is supported by sufficient evidence. State v.
Arcaro, 11th Dist. Ashtabula No. 2012-A-0028, 2013-Ohio-1842, ¶ 32.
{¶43} In this case, appellant was convicted of Aggravated Vehicular Homicide in
violation of R.C. 2903.06(A)(2)(a) and (B)(3), Failure to Stop After an Accident in violation
of R.C. 4549.02(A)(2), a felony of the third degree; and Obstructing Official Business in
violation of R.C. 2921.31(A), a misdemeanor of the second degree.
{¶44} R.C. 2903.06(A)(2)(a) provides:
(A) No person, while operating or participating in the operation of a
motor vehicle, motorcycle, snowmobile, locomotive, watercraft, or
aircraft, shall cause the death of another or the unlawful termination
of another's pregnancy in any of the following ways:
***
(2) In one of the following ways:
(a) Recklessly;
{¶45} R.C. 4549.02 provides in pertinent part:
(A)(1) In the case of a motor vehicle accident or collision with persons
or property on a public road or highway, the operator of the motor
vehicle, having knowledge of the accident or collision, immediately
shall stop the operator's motor vehicle at the scene of the accident
or collision. The operator shall remain at the scene of the accident or
collision until the operator has given the operator's name and
address and, if the operator is not the owner, the name and address
of the owner of that motor vehicle, together with the registered
number of that motor vehicle, to all of the following:
(a) Any person injured in the accident or collision;
(b) The operator, occupant, owner, or attendant of any motor vehicle
damaged in the accident or collision;
(c) The police officer at the scene of the accident or collision.
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(2) In the event an injured person is unable to comprehend and
record the information required to be given under division (A)(1) of
this section, the other operator involved in the accident or collision
shall notify the nearest police authority concerning the location of the
accident or collision, and the operator's name, address, and the
registered number of the motor vehicle the operator was operating.
The operator shall remain at the scene of the accident or collision
until a police officer arrives, unless removed from the scene by an
emergency vehicle operated by a political subdivision or an
ambulance.
{¶46} R.C. 2921.31(A) provides:
No person, without privilege to do so and with purpose to prevent,
obstruct, or delay the performance by a public official of any
authorized act within the public official's official capacity, shall do any
act that hampers or impedes a public official in the performance of
the public official's lawful duties.
{¶47} Appellant argues that the jury lost its way because there was no direct
evidence that appellant was driving the car at the time of the crash. We disagree.
{¶48} Here, the State’s evidence relied on circumstantial evidence that appellant
was driving the Fusion and subsequently left the scene of the accident. “Circumstantial
evidence and direct evidence inherently possess the same probative value and therefore
should be subjected to the same standard of proof.” State v. Jenks, 61 Ohio St.3d 259,
574 N.E.2d 492 (1991), paragraph one of the syllabus. Circumstantial evidence is not
based on personal knowledge or observation, but on “facts from which inferences are
drawn, showing indirectly the facts sought to be established.” State v. Blazo, 11th Dist.
Lake No. 2019-L-094, 2020-Ohio-4636, citing State v. Nicely, 39 Ohio St.3d 147, 150,
529 N.E.2d 1236 (1988). Where a conviction is based on circumstantial evidence, “that
evidence must prove collateral facts and circumstances, from which the existence of a
primary fact may be rationally inferred according to common experience.” State v.
Windle, 11th Dist. Lake No. 2010-L-033, 2011-Ohio-4171, ¶ 34.
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{¶49} On the night of the crash, Julie Gibbs stated that she saw appellant three
times when he drove to her house. Two of those times, he drove the Fusion. Julie said
that Lloyd left the house on his motorcycle around 10:00 p.m., which was about the same
time that appellant’s housemate, William Bailey was startled by the Fusion peeling out of
the driveway. Bailey texted appellant, “what the hell now? Be careful whatever that was
about.” After the time of the crash, appellant texted Bailey that he believed he was being
punished by his father and brother in reference to the hay sale because, “apparently I
wasn’t supposed to get half the money…idk[.]”
{¶50} Appellant also called Bailey and Thomas Rice about the Fusion being
stolen; however, appellant himself did not report it stolen. Neither Bailey nor Rice felt
comfortable reporting the vehicle stolen on appellant’s behalf. Trooper Royko testified
that appellant’s stolen vehicle claims were “doubtful” and described in detail the
improbable set of circumstances that would have been necessary for such a theft to occur.
{¶51} Rice said when he talked to appellant, he “sounded frantic.” Others, such
as Michael Fogle and Grace Buell similarly described appellant’s demeanor as “nervous,”
“trying to hide something,” or “weird in general.” Fogle also noted a change in appellant’s
demeanor which corresponded to the time of the crash. Buell noted that appellant’s
unannounced appearance at her house was unusual. Appellant also lied to Royko about
when he arrived at Buell’s house. Appellant told Roko he arrived before sunset. However,
his cell phone data and witnesses’ testimony both indicated he was still at his own
residence for at least an hour after sunset.
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{¶52} Multiple law enforcement officers commented that the tire marks at the
scene were not typical. Trooper Fox in particular said that the driver of the Fusion failed
to brake for 188 feet after striking the motorcycle.
{¶53} Appellant’s cell phone expert Aguero said the phone data was not specific
enough to say where appellant’s phone was located at the time of the crash. However,
he did not testify that the data excluded appellant’s phone from the crash. Further, Aguero
analyzed less data than Nichols, the State’s expert. Far from an alibi, Aguero’s testimony
was offered to diminish the weight of the State’s own expert. However, Nichols
acknowledged that the Sprint and Snap Chat data could only give an estimated device
location. Nichols’ conclusion was that, based on that estimated location data, appellant’s
cell phone was within range of the crash during the time of the crash and then moved
north. Aguero did not contradict this conclusion.
{¶54} This evidence is the kind of indirect evidence from which a jury can draw
natural inferences of guilt. Particularly, the evidence was such that a trier of fact could
conclude that appellant was driving the Fusion at the time of the accident, that appellant
left the scene and went to Buell’s house to spend the night, and that appellant obstructed
the investigation. This is not the exceptional case where the evidence weighs heavily
against conviction. Appellant’s conviction was supported by the manifest weight of the
evidence.
{¶55} Accordingly, appellant’s first assignment of error is without merit.
{¶56} Appellant’s second assignment of error states:
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{¶57} “[2.] Appellant’s Sentence is Contrary to Law Because the Trial Court Failed
to Properly Consider and Weight the Relevant Statutory Factors, and Because the Record
Does Not Clearly and Convincingly Support Consecutive Sentences.”
{¶58} Appellant raises two issues in this assignment of error. First, that the trial
court did not properly weigh the purposes and principles of felony sentencing contained
in R.C. 2929.11 and R.C. 2929.12. Second, that the record does not clearly and
convincingly support the rebuttal of the presumption of concurrent sentences.
Purposes and Principles of Felony Sentencing:
{¶59} Appellant cites R.C. 2953.08(G)(2)(a) as our standard of review for felony
sentencing matters. However, division (G)(2)(a) of that statute only applies to challenges
to sentences imposed under R.C. 2929.13(B) or (D), R.C. 2929.14(B)(2)(e) or (C)(4), and
R.C. 2929.20(I). Appellant’s R.C. 2929.11 and R.C. 2929.12 challenges are not proper
under R.C. 2953.08. See State v. Shannon, 11th Dist. Trumbull No. 2020-T-0020, 2021-
Ohio-789, ¶ 7.
{¶60} We reiterate our prior holdings, and admonish all counsel in this district to
observe, R.C. 2953.08(G)(2)(a) does not provide a basis for an appellate court to modify
or vacate a sentence based on the lack of support in the record for the trial court’s findings
under R.C. 2929.11 and 2929.12. State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729,
169 N.E.2d 649, ¶ 27-29; e.g., State v. Reffitt, 11th Dist. Lake No. 2021-L-129, 2022-
Ohio-3371; ¶ 17; State v. Stevens, 11th Dist. Lake No. 2021-L-105, 2022-Ohio-3781, ¶
19; State v. Pruitt, 11th Dist. Trumbull No. 2021-T-0012, 2021-Ohio-3793, ¶ 10; State v.
Loparo, 11th Dist. Lake No. 2020-L-120, 2021-Ohio-2179, ¶ 13; State v. Mizicko, 11th
Dist. Trumbull No. 2021-T-0017, 2022-Ohio-262, ¶ 22; State v. Potter, 11th Dist. Lake
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No. 2021-L-053, 2021-Ohio-3485, ¶ 7. The fundamental premise of all the above
precedents is that R.C. 2929.11 and R.C. 2929.12 are not statutes to which R.C.
2953.08(G)(2)(a) even refers. More fundamentally, neither R.C. 2929.11 nor R.C.
2929.12 call for the sentencing court to even make “findings.”
{¶61} Under Jones, an appellate court reviewing alleged error under R.C. 2929.11
and R.C. 2929.12 no longer evaluates whether those sentences are unsupported by the
record. Instead, the court “must simply analyze whether the sentencing court’s findings
for those sentences are contrary to law.” Id. at ¶ 11. Jones held that “legal dictionaries
define ‘contrary to law’ as ‘in violation of statute or legal regulations at a given time,’ e.g.,
Black’s Law Dictionary 328 (6th Ed. 1990).” Id. at ¶ 34. However, Jones held that the
phrase “contrary to law” is not “equivalent” to an “appellate court’s conclusions that the
record does not support a sentence under R.C. 2929.11 or 2929.12.” Id.
{¶62} Appellant concedes that his sentence falls within the statutory range, but
argues, contrary to Jones, that the court did not properly weigh the purposes and
principles of felony sentencing in R.C. 2929.11(A) and did not properly assess the
serious and recidivism factors of R.C. 2929.12. Appellant’s argument fails because we
may not independently weigh the evidence in the record and substitute our judgment for
the trial court’s. Id. at ¶ 42.
Consecutive Sentences:
{¶63} Next, appellant challenges his consecutive sentences.
{¶64} There are three ways an appellant can challenge consecutive sentences on
appeal. State v. Lewis, 11th Dist. Lake No. 2001-L-060, 2002-Ohio-3373, ¶ 6. First, the
appellant may argue that the sentencing court failed to state the findings for consecutive
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sentences that R.C. 2929.14(C)(4) requires. State v. Torres, 11th Dist. Lake No. 201-L-
122, 2003-Ohio-1878, ¶ 18; R.C. 2953.08(G)(1). Second, the appellant may argue that
the record clearly and convincingly does not support the findings the sentencing court
made to justify consecutive sentences. State v. Lewis, at ¶ 7; R.C. 2953.08(G)(2)(a).
Third, the appellant may argue that his sentence is clearly and convincing otherwise
contrary to law. R.C. 2953.08(G)(2)(b).
{¶65} R.C. 2929.14(C)(4) provides:
If multiple prison terms are imposed on an offender for convictions of
multiple offenses, the court may require the offender to serve the
prison terms consecutively if the court finds that the consecutive
service is necessary to protect the public from future crime or to
punish the offender and that consecutive sentences are not
disproportionate to the seriousness of the offender's conduct and to
the danger the offender poses to the public, and if the court also finds
any of the following:
(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 postrelease 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 making its findings for consecutive sentences, the sentencing court is
required to engage in the analysis for consecutive sentencing and specify the statutory
criteria warranting its decision. State v. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177,
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16 N.E.3d 659, at ¶ 26. While the sentencing court is not required to state exact reasons
supporting its findings, the record must contain a clear basis upon which a reviewing court
can determine that the sentencing court’s findings for imposing consecutive sentences
are supported by the record. Id. at ¶ 27-28.
{¶67} Here, appellant concedes that the trial court made the required findings for
consecutive sentences. However, he argues that this is his first felony conviction and that
his misdemeanor criminal history was comprised of non-violent and traffic offenses. He
therefore believes that the record does not support the rebuttal of the presumption of
concurrent sentences.
{¶68} We disagree. The record does not clearly and convincingly fail to support
the trial court’s imposition of consecutive sentences. The trial court said appellant has
had “at least twelve contacts with the criminal justice system. Not all of which resulted in
convictions, but notably four contacts after this incident including the other offense that
he’s going to be sentenced on today.”
{¶69} That other offense was a felony failure to comply with an order or signal of
a police officer in violation of R.C. 2921.331. The trial court was troubled by this
subsequent charge because it was a felony vehicular offense involving risk of harm to
others. The record shows that appellant’s criminal history justified the trial court’s
determination that consecutive sentences were necessary to protect the public from
future crime by appellant.
{¶70} Accordingly, appellant’s second assignment of error is without merit.
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Case No. 2022-A-0042
{¶71} For the foregoing reasons, the judgment of the Ashtabula County Court of
Common Pleas is affirmed.
MATT LYNCH, J.,
FREDERICK D. NELSON, J., Retired, Tenth Appellate District, sitting by assignment,
concur.
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Case No. 2022-A-0042