State v. Benson

[Cite as State v. Benson, 2021-Ohio-2010.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
BELMONT COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
TIA NICOLE ASHLEY BENSON,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 19 BE 0040
Criminal Appeal from the
Court of Common Pleas of Belmont County, Ohio
Case No. 18 CR 271
BEFORE:
David A. D’Apolito, Gene Donofrio, Carol Ann Robb, Judges.
JUDGMENT:
Affirmed.
Atty. Dan Fry, Belmont County Prosecutor, 147-A West Main Street, St. Clairsville, Ohio
43950 and Atty. J. Flanagan, Assistant Prosecuting Attorney for Plaintiff-Appellee and
Atty. Alexander Keane, P.O. Box 92, Canfield, Ohio 44406, for Defendant-Appellant.
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Dated: June 14, 2021
D’Apolito, J.
{¶1} Appellant Tia Nicole Ashley Benson appeals her sentences for two counts
of complicity to commit abduction, in violation of R.C. 2923.03(A)(2)(F) (aid and abet) and
2905.02(A)(2)(by force or threat, restrain the liberty of another person under
circumstances that create a risk of physical harm to the victim or place the other person
in fear), felonies of the third degree, and one count of complicity to commit theft in violation
of R.C. 2923.03(A)(2)(F) and 2913.02(A)(1) (beyond the scope of consent of the owner),
a felony of the fourth degree, following her entry of a guilty plea in the Belmont County
Court of Common Pleas. The trial court imposed consecutive, maximum sentences. In
her sole assignment of error, Appellant argues that the trial court’s imposition of
consecutive sentences is not supported by the record.
{¶2} Appellant was originally charged with one count of complicity to commit
kidnapping in violation of R.C. 2923.03(A)(2)(F) and 2905.01(A)(2), and one count of
complicity to commit aggravated robbery in violation of R.C. 2923.03(A)(2)(F) and
2911.01(A)(2), felonies of the first-degree, in addition to the fourth-degree theft charge.
In exchange for her plea, the state agreed to amend the first two counts in the indictment
from first-degree kidnapping and aggravated robbery to third-degree abduction.
Appellant committed the crimes with Jordan Javaughn Baker.
{¶3} Appellant underwent two competency evaluations during the pretrial
proceedings. She was found to be capable of understanding the nature and objective of
the proceedings against her and of assisting in her own defense, however, Appellant
demonstrated borderline intellectual functioning.
{¶4} Relevant to above-captioned appeal, the presentence investigation report
(“PSI”) states that Appellant (d.o.b. 9/30/1989) is a low risk for recidivism. According to
the PSI, Appellant’s criminal history includes, in its entirety, a conviction in 2017 for
operating a motor vehicle without a license; a charge of criminal mischief (a misdemeanor
of the third degree) in 2016, which was dismissed after she successfully completed a
diversion program; and charges for simple assault, harassment, and disorderly conduct
Case No. 19 BE 0040
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in 2009, for which the disposition was unknown. Appellant was also convicted of
shoplifting when she was twelve years of age.
{¶5} At the sentencing hearing, the state offered no argument beyond the
statements and conclusions made in the PSI and victim impact report. (8/12/19 Sent.
Hrg., p. 2.) Prior to sentencing, Appellant’s trial counsel stated that “[Appellant] realizes
that the two victims in this case were simply young girls trying to help [Appellant and
Baker], and that situation was taken advantage of.” (Id., p. 3.)
{¶6} Prior to imposing sentence, the trial court read the following excerpt from
the police report: “The victims in this matter were juveniles, ages 17 and 14. They were
kidnapped and forced into the trunk of their car at gunpoint. The male grabbed her neck
and put the gun to her head. The male and female took her and the phones, forced into
the trunk [sic].” (Id., p. 4.) The trial court observed, “This is an extraordinarily serious and
extraordinarily scary matter. We are lucky we do not have murder charges that we’re
dealing with here, to be honest with you.” (Id.) As a consequence, the trial court imposed
maximum sentences on all three of the convictions, that is, 36 months for each of the
third-degree felonies, and 18 months for the fourth-degree felony.
{¶7} Further, the trial court imposed the maximum sentences to run
consecutively, for an aggregate sentence of seven-and-a-half years, stating:
This Court determines that consecutive service [sic] is necessary to protect
the public from future crime and to punish the offender. Also, consecutive
sentences are not disproportionate to the seriousness of the offender’s
conduct and to the danger the offender poses to the public.
This Court determines that this conduct and the danger was extremely
serious for the public. This Court determines in following the law that the
offender’s history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by the
offender.
(Id., p. 5.)
Case No. 19 BE 0040
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{¶8} In the judgment entry, the trial court, in considering the factors listed in R.C.
2929.12(B) and (D), cited Appellant’s juvenile and adult criminal history, and her failure
to respond to previously-imposed sanctions, in order to conclude that she has
demonstrated a pattern of criminal activity without a good faith attempt at a change of
lifestyle. With respect to the imposition of consecutive sentences, the judgment entry
reads, in relevant part:
In accord with R.C. § 2929.14(C)(4), the Court finds that a consecutive
sentence is necessary to protect the public from future crime and to punish
the offender, and consecutive sentences are not disproportionate to the
seriousness of the offender’s conduct and the danger this offender poses
to the public. The Court finds that imposition of consecutive sentences is
reasonable and appropriate. The Court further finds that consecutive
sentences are necessary to protect the public from future crimes. The Court
further finds that the harm to the victim was so great that a single term does
not adequately reflect the seriousness of Defendant’s conduct and that
consecutive sentences are necessary to protect the public from future
crimes by this offender and by others.
(Emphasis in original) (8/13/19 J.E., p. 2.) This timely appeal followed.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED WHEN IT FOUND THAT CONSECUTIVE
SENTENCES WOULD NOT BE DISPROPORTIONATE TO THE DANGER
PRESENTED BY APPELLANT THOUGH [SIC] THAT FINDING IS
UNSUPPORTED BY THE RECORD.
{¶9} In her sole assignment of error, Appellant concedes that the record contains
sufficient evidence that the harm to the victims in this case is so great as to render a
single term of imprisonment insufficient. However, based on the assessment in the PSI
that she has a low risk of recidivism, she argues that there is not clear and convincing
evidence in the record to support the trial court’s finding that consecutive sentences are
Case No. 19 BE 0040
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required to protect the public from future harm, and that consecutive sentences totaling
seven-an-a-half years are not disproportionate to the danger she poses to the public. The
state counters that the trial court fulfilled its obligation with respect to the imposition of
consecutive sentences.
{¶10} Pursuant to the Ohio Supreme Court’s holding in State v. Marcum, 146 Ohio
St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1, “an appellate court may vacate or
modify a felony sentence on appeal only if it determines 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.” Id. R.C. 2953.08(G)(2)(a) permits an appellate
court to modify or vacate a sentence based on a finding “[t]hat the record does not support
the sentencing court's findings under division (B) or (D) of section 2929.13, division
(B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised
Code, whichever, if any, is relevant.”
{¶11} In State v. Jones, -- Ohio St.3d --, 2020-Ohio-6729, -- N.E.3d --, the Ohio
Supreme Court recently held that R.C. 2953.08(G)(2)(a) does not authorize an appellate
court to modify or vacate a sentence based on the lack of support in the record for the
trial court's findings unless the findings are made pursuant to the statutory provisions
specifically listed in R.C. 2953.08(G)(2)(a). Id. at ¶ 28. In her sole assignment of error,
Appellant asserts that the imposition of consecutive sentences, governed by R.C.
2929.14(C)(4) which is among the statutory provisions specifically listed in in R.C.
2953.08(G)(2)(a), is unsupported by the record.
{¶12} The standard of review applied to findings required under particular
statutory provisions, including consecutive sentencing, is clear and convincing. Clear and
convincing evidence “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 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.” Marcum
at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph
one of the syllabus.
{¶13} In general, it is presumed that prison terms will be served concurrently. R.C.
2929.41(A); State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 16,
Case No. 19 BE 0040
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¶ 23 (“judicial fact-finding is once again required to overcome the statutory presumption
in favor of concurrent sentences”). When imposing consecutive sentences, a trial court
must make the statutory findings required by R.C. 2929.14(C)(4), which 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 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.
{¶14} The trial court need not provide reasons in support of its consecutive
sentence findings and need not quote the statute verbatim in making these findings.
Bonnell, supra, ¶ 27, 29. However, the trial court must make the consecutive sentence
findings at the sentencing hearing and must additionally incorporate the findings into the
sentencing entry. State v. Williams, 7th Dist. Mahoning No. 13-MA-125, 2015-Ohio-4100,
¶ 33-34, citing Bonnell at ¶ 37.
Case No. 19 BE 0040
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{¶15} The following facts are taken from what appears to be an excerpt from a
police report included in the PSI. On November 4, 2018, Appellant and Baker were
hitchhiking, when the victims, 17-year-old K.E., who was driving a 2007 Chevy Cobalt,
and fourteen-year-old B.D., who was in the passenger seat, stopped and offered
transportation to Appellant and Baker as far as Martins Ferry. During the conversation
that ensued in the automobile on the way to Martins Ferry, Appellant informed the victims
that she was pregnant.
{¶16} After they arrived at the McDonald’s in Martins Ferry and everyone exited
the vehicle, Baker approached the victims and asked them to take him and Appellant to
his uncle’s house. The victims agreed, and when the automobile entered “a dark area,”
Baker grabbed K.E.’s neck and pointed a gun to her head. Appellant and Baker took the
victims’ mobile telephones and then the victims were forced into the trunk.
{¶17} With the victims in the trunk, Appellant and Baker drove the automobile to
the 500 block of Columbus Avenue. The victims waited until Appellant and Baker exited
the vehicle, then the victims accessed a release mechanism inside the trunk and
escaped.
{¶18} Using the “Find My I-phone” application, investigating officers located B.D.’s
telephone in a wooded area near some railroad tracks. Officers began patrolling the
railroad tracks and came upon Appellant and Baker. When Baker saw the officers, he
discarded an object and fled into the woods.
{¶19} Baker was apprehended and both Appellant and Baker were arrested. A
loaded handgun, with a round in the chamber, was found on the ground near the woods.
A pink auxiliary cord and a vape box belonging to K.E. were found in Appellant’s
possession. The following day, the victims searched the area where the arrest occurred
and found K.E.’s telephone as well as several other items including a Coach purse and
debit and insurance cards taken from them the previous evening.
{¶20} Appellant told the arresting officers that Baker decided that he wanted to
steal K.E.’s automobile when he was in the McDonald’s parking lot. Appellant further
stated that she left the scene after Baker forced the victims into the trunk, contrary to the
police report, which read that the victims waited until both Appellant and Baker departed
Case No. 19 BE 0040
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from the vehicle to escape. Appellant conceded that she was not pregnant, but denied
personally misrepresenting her condition to the victims.
{¶21} In a written statement that Appellant completed after she entered her plea,
she writes that Baker told the victims that she was pregnant. Appellant further writes that
Baker kidnapped, bound, and raped her earlier that day, and she participated in the crime
under duress because Baker threatened to kill her mother and her children. According to
Appellant’s written statement, she forced the victims into the truck, but she tearfully
pleaded with Baker not to abduct them. She further writes that she was able to escape
from the automobile after forcing the victims into the trunk, but Baker captured her and
forced her return to the vehicle.
{¶22} During the investigations of the crimes, officers learned that Appellant and
Baker approached a woman who was sitting on her porch and asked her for a ride in her
automobile on the same evening that the crimes at issue in this appeal occurred. When
the woman informed them that she did not own an automobile, they asked to use her
telephone and then departed.
{¶23} According to the risk assessment in the PSI, Appellant’s education,
employment and financial situation indicate that she is a high risk for recidivism. The PSI
establishes that Appellant, who dropped out of high school and has four children, has had
only one job in her lifetime. She was employed as a cook in a pizza shop from August of
2018 to November of 2018. Her employment at the pizza shop immediately preceded the
crime at issue in this appeal. Presumably she lost the job as a result of her arrest. The
risk assessment further reads that all other factors, including her criminal history, family
and social support, neighborhood, peer associations, and criminal attitudes and behavior
patterns indicate that she is a low risk for recidivism.
{¶24} Last year, we considered the impact of a determination in a PSI that the
offender was unlikely to commit future crimes on the imposition of consecutive sentences
in State v. Lee, 7th Dist. Belmont No. 19 BE 0018, 2020-Ohio-3580, Lee was charged in
a 28-count indictment, which alleged that she used her position as York Township’s fiscal
officer to steal money from the township and the water authority for personal purchases,
to tamper with the township’s financial record, and that she failed to remit taxes from the
township and the water authority.
Case No. 19 BE 0040
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{¶25} Lee agreed to plead guilty to two counts of theft in office, one count of
tampering with records, and two counts of failure to remit. She also agreed to pay
restitution totaling approximately $123,000.00 to the township and the water authority and
to never again hold public office in Ohio. In exchange, the state agreed to dismiss all of
the remaining charges.
{¶26} The trial court sentenced Lee to 36 months on each of the theft in office
convictions, 36 months for the tampering with evidence conviction, and twelve months on
each of the failure to remit convictions, to be served consecutively, with the exception of
one of the failure to remit sentences, for an aggregate sentence of ten years, plus a
$10,000.00 fine.
{¶27} Beginning with the factor that consecutive sentences are necessary to
protect the public from future crime or to punish the offender, Lee argued that her lack of
criminal history and her presentence investigation, which labeled her as a low recidivism
risk, did not support the imposition of consecutive sentences.
{¶28} Lee cited two cases from the Second District Court of Appeals. In State v.
Hicks, 2nd Dist. Greene No. 2015-CA-20, 2016-Ohio-1420, Hicks pled guilty to five counts
of theft from a disabled adult. As part of a plea agreement, the state agreed to
recommend community control. However, the trial court sentenced Hicks to prison on all
five counts and ordered the sentences to run consecutively for a total of 108 months.
{¶29} On appeal, Hicks argued that the imposition of consecutive sentences was
not supported by the record. The Second District held that the record did not clearly and
convincingly support the imposition of consecutive sentences because Hicks was 52
years old at the time of the offenses, she had no criminal history, she committed the
crimes in order to pay for her dying husband’s medications and subsequent funeral, and
the presentence report indicated that she was unlikely to commit any future crimes. Id. at
¶ 21-22.
{¶30} Lee also cited State v. Adams, 2nd Dist. Clark No. 2014-CA-13, 2015-Ohio-
1160. Adams was charged with eight counts of burglary, two counts of drug possession,
and one count of receiving stolen property. The offenses occurred in a five-month period.
Pursuant to a plea agreement, Adams pled guilty to three counts of burglary and one
Case No. 19 BE 0040
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count of possession of heroin. The trial court ordered the sentences on each count to run
consecutively for an aggregate sentence of twenty years.
{¶31} On appeal, the Second District held that the record did not support the
conclusion that consecutive sentences were necessary to protect the public or punish
Adams, and were not disproportionate to the seriousness of Adams’s conduct and to the
danger he poses to the public. The Second District predicated its holding on Adams’ lack
of adult felony record, the non-violent nature of the crimes, and the fact that Adams
suffered from an untreated heroin addiction.
{¶32} Lee argued that Hicks and Adams were analogous to her case because she
had no prior criminal history, her risk assessment in her presentence report was low, and
her crimes were non-violent. We reached the opposite conclusion, however, writing:
Next, [Lee] argues that the same reasons (her lack of criminal history, lack
of violence, and low risk for recidivism) show that the second statutory factor
(consecutive sentences are not disproportionate to the seriousness of the
defendant’s conduct and to the danger she poses to the public) is not
supported by the record.
[Lee]’s sentence is not disproportionate to the seriousness of her conduct.
Appellant pled guilty to five offenses stemming from her theft of
approximately $123,000 from York Township and York Water Authority over
a three-year period and using the money for numerous personal purchases.
As a result of appellant’s actions, York Township’s and York Water
Authority’s financial records were in such disarray that the Ohio Auditor’s
office declared them un-auditable. [Lee] also failed to timely remit the
township’s taxes which resulted in additional fees the township had to pay.
As previously stated, when the water authority experienced a major line
break, it could not secure a loan to repair the break due to the water
authority’s financial deficit and the water authority had to increase rates for
its customers. Moreover, [Lee] used her position as York Township’s fiscal
officer in order to commit these crimes.
Case No. 19 BE 0040
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[Lee]’s sentence is also not disproportionate to the danger she poses to the
public. Appellant pled guilty to offenses where she was charged with
stealing approximately $123,000 over a three-year period. The fact that
[Lee] pled guilty to stealing such a large amount of money and committed
these offenses over an extended period of time indicates that she poses a
danger to the community because she has demonstrated a propensity to
steal from others within her community.
Id. at ¶ 56-58.
{¶33} In this appeal, Appellant argues that consecutive sentences are not required
to protect the public from future harm, and, similarly, that consecutive sentences totaling
seven-and-a-half years are disproportionate to the danger she poses to the public based
on the conclusions in the PSI. We disagree. The PSI is one of several factors that the
trial court considered in fashioning Appellant’s sentence. Further, although the PSI
concludes that Appellant has a low risk for recidivism, the investigator conceded that one
factor – Appellant’s lack of education and employment history -- indicates a high risk of
recidivism. Appellant’s only employment immediately preceded the crimes at issue here,
and it appears that she lost that one and only job due to her arrest.
{¶34} Further, Appellant has a criminal history, albeit with no felonies, unlike Lee,
who had no criminal history at all. The trial court acknowledges in the judgment entry that
Appellant has continued to commit crimes despite her prior convictions, and despite
efforts, such as the diversion program, to rehabilitate instead of incarcerate her.
{¶35} Of greatest import, the facts in this case are distinguishable from all of the
above-cited cases because Appellant’s convictions were for violent crimes committed
against a seventeen-year-old-girl and a fourteen-year-old-girl. Baker did not only
brandish a gun, but held it to K.B.’s head. The girls were robbed and forced into the trunk
of the automobile. Further, Appellant and Baker did not free the girls; the girls escaped
as a result of their own courage and intelligence. According to a victim impact report, at
least one of the victims has suffered long-term effects as a result of Appellant’s crime. As
the trial court observed, the criminal acts of Appellant and Baker could have resulted in
physical harm or death to both girls.
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{¶36} Finally, Appellant asserted before the trial court that she committed the
crimes under duress, but the trial court apparently did not credit her testimony. Although
Appellant has borderline intellectual functioning, she did not assert that Baker
manipulated or tricked her into committing the criminal acts.
{¶37} In conclusion, we find that there is clear and convincing evidence in the
record to support the imposition of consecutive sentences and Appellant’s sole
assignment of error has no merit. Accordingly, the judgment entry imposing consecutive
sentences is affirmed.
Donofrio, P.J., concurs.
Robb, J., concurs.
Case No. 19 BE 0040
[Cite as State v. Benson, 2021-Ohio-2010.]
For the reasons stated in the Opinion rendered herein, the assignment of error
is overruled and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas of Belmont County, Ohio, is affirmed. Costs to be waived.
A certified copy of this opinion and judgment entry shall constitute the mandate
in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
a certified copy be sent by the clerk to the trial court to carry this judgment into
execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.