State v. Moss

[Cite as State v. Moss, 2017-Ohio-4233.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2016-A-0046
- vs - :
REJEANA MOSS, :
Defendant-Appellant. :
Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2015
CR 136.
Judgment: Affirmed.
Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047-1092 (For Plaintiff-Appellee).
Matthew C. Bangerter, P.O. Box 148, Mentor, OH 44061 (For Defendant-Appellant).
THOMAS R. WRIGHT, J.
{¶1} Appellant, Rejeana Moss, appeals the trial court’s imposition of a ten-year
prison term on five third-degree felonies as excessive. She contends that the term must
be reduced because the trial court did not consider statutory sentencing factors
favorable to her. We affirm.
{¶2} During the relevant time period, appellant and her husband, co-defendant
David Moss, lived in a single-family dwelling in Dorset Township, Ashtabula County,
Ohio. In July 2001, the couple became foster parents to R.M. Two years later, they
adopted him. R.M. continued to reside with the Mosses until he turned eighteen years
old in November 2009.
{¶3} In 2003, the couple became foster parents to three other children, R.D.M.,
A.E.M., and S.J.M, all biologically related. The oldest of the three, R.D.M. a ten-year-
old boy, is developmentally disabled. The other two, both girls, were six and three when
they first started living with the Mosses. Like R.M., the Mosses adopted these children.
{¶4} Initially, the three related children attended public schools. At some point
prior to 2011, though, the Mosses withdrew the children from public schools and
educated them at home.
{¶5} On August 26, 2013, the two girls surreptitiously left the home and took
the Mosses’ vehicle without their knowledge. Neither child had a driver’s license and
they were quickly involved in a minor traffic accident. The girls were charged with
unauthorized use of a motor vehicle in juvenile court. As part of the accident
investigation, the girls made statements to authorities concerning how they were treated
by the Mosses. The statements led to a separate investigation into the condition of the
Mosses’ residence by the county sheriff’s department and children’s services. After
investigation, the authorities removed all three of the related children from the Mosses’
custody.
{¶6} The investigation revealed that the three children were primarily living in
two bedrooms, the girls in one and the boy in the other. Each bedroom had a padlock
allowing the children to be locked inside. The windows in the girls’ bedroom were
covered with plywood, and the curtains over the only window in the boy’s bedroom were
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stapled to the woodwork. The children could not look out their windows and could not
leave their rooms unless someone unlocked the doors. Furthermore, the only furniture
was one bed for each child. All other bedroom furniture and the children’s clothes were
in the hallway outside the bedrooms. In addition, the girls’ bedroom had two buckets
and toilet paper, while the boy’s bedroom contained a metal can.
{¶7} According to the girls, during the two-year period from 2011 through their
removal from the Mosses’ home, all three children were locked in their bedrooms for at
least twenty hours every day. While inside the bedrooms, they were not allowed to
have anything, including reading material, and wore only minimal clothing, such as
underwear. The children were permitted to leave their bedrooms three to four times a
day to eat or use the bathroom.
{¶8} The children were regularly subjected to corporal punishment, usually by
means of a homemade paddle. The punishment was normally meted out by David
Moss for errors in the children’s homework. According to the girls, the paddle was used
so often and harshly that it had red blood stains. Each girl asserted that appellant
physically abused her on multiple occasions. According to A.E.M. appellant once
choked her and hit her head so hard against the wall that her teeth split her lip.
{¶9} Eighteen months after removal of the three children, the county grand jury
issued a nine-count indictment against appellant, charging her with three counts of
endangering children, three counts of kidnapping, and three counts of felonious assault.
Three months later, the grand jury returned a second indictment, charging her with one
additional count of each offense.
{¶10} Appellant ultimately pleaded guilty to four counts of endangering children,
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third-degree felonies under R.C. 2919.22(B)(2), and one amended count of attempted
felony assault, a third-degree felony under R.C. 2923.02(A) and 2903.11(A)(1). The
state dismissed the remaining seven charges. The trial court found appellant guilty on
all five counts and referred the matter to the adult probation department for presentence
investigation.
{¶11} At sentencing, appellant’s counsel requested community control
sanctions. In support, counsel stated that appellant believed she had acted
appropriately in disciplining the four children the majority of the time, and there had only
been a few occasions when the discipline was too severe. Counsel also provided
explanations for the condition of the children’s bedrooms. In speaking on her own
behalf, appellant said she had a “heavy heart” for what had taken place, but also
asserted that the three “related” children had special needs/disabilities that made taking
care of them more difficult. In response, the state read into the record statements from
R.M. and two girls.
{¶12} In imposing sentence, the trial court noted that there were multiple victims,
that each victim was under the age of eighteen when the crimes occurred, and that one
of the victims was developmentally disabled. The court further noted that the victims
suffered both physical and psychological harm, and that appellant and her husband
subjected them to prolonged periods of “reckless torture” through the use of excessive
punishment and restraint. Accordingly, the trial court imposed a twenty-four month
prison term on each of the five charges, consecutively, for an aggregate term of ten
years.
{¶13} Appellant assigns the following as error:
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{¶14} “The trial court erred by sentencing the defendant-appellant to a term of
imprisonment contrary to statute and where its findings were not supported by the
record.”
{¶15} Appellant maintains the trial court erred in failing to consider favorable
sentencing factors. Specifically, she claims the court ignored factors under R.C.
2929.12(C) and (E) that tended to establish the crimes she committed were not the
most serious form of endangering children and she was highly unlikely to commit any
additional offenses in the future. Appellant argues the trial court should have given
more weight to the part that the three “related” children had special needs and were
difficult to control.
{¶16} Appellate review of felony sentences is governed by the standard in R.C.
2953.08(G)(2). State v. Lucas, 11th Dist. Lake No. 2016-L-063, 2017-Ohio-429, ¶8,
citing State v. Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002, ¶22. The relevant part of
the statute provides:
{¶17} “The court hearing an appeal under division (A), (B), or (C) of this section
shall review the record, including the findings underlying the sentence or modification
given by the sentencing court.
{¶18} “The appellate court may increase, reduce, or otherwise modify a
sentence that is appealed under this section or may vacate the sentence and remand
the matter to the sentencing court for resentencing. The appellate court’s standard for
review is not whether the sentencing court abused its discretion. The appellate court
may take any action authorized by this division if it clearly and convincingly finds either
of the following:
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{¶19} “(a) That 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;
{¶20} “(b) That the sentence is otherwise contrary to law.”
{¶21} Thus, as an appellate court, we must affirm the felony sentence imposed
by the trial court unless we determine by clear and convincing evidence that the trial
court’s findings are not supported by the record or that the sentence otherwise conflicts
with the governing law. Lucas, 2017-Ohio-429, at ¶8.
{¶22} “‘It is important to note “that the clear and convincing standard used by
R.C. 2953.08(G)(2) is written in the negative. It does not say that the trial court must
have clear and convincing evidence to support its findings. Instead, it is the court of
appeals that must clearly and convincingly find that the record does not support the
court’s findings.” [State v.] Venes, 2013-Ohio-1891, 992 N.E.2d 453, at ¶21. “In other
words, the restriction is on the appellate court, not the trial judge. This is an extremely
deferential standard of review.” Id.’ State v. Rodeffer, 2nd Dist. Montgomery Nos.
25574, 25575, and 25576, 2013-Ohio-5759, ¶31.” State v. Guth, 11th Dist. Portage No.
2015-P-0083, 2016-Ohio-8221, ¶23.
{¶23} In imposing a felony sentence, the trial court is obligated to consider both
the purposes of sentencing under R.C. 2929.11(A) and the factors for seriousness and
recidivism under R.C. 2929.12. State v. Hull, 11th Dist. Lake No. 2016-L-035, 2017-
Ohio-157, ¶18. In fulfilling this duty, though, the court is not required to make specific
findings on the record or use any specific language during the sentencing hearing or in
the sentencing judgment. Lucas, 2017-Ohio-429, at ¶11. Moreover, in weighing the
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factors, the court has no duty to give particular weight or emphasis to a specific factor
under a given set of facts. Id.
{¶24} Given that the trial court is not obligated to refer to every factor listed in
R.C. 2929.12 as part of its sentencing analysis, “the defendant has the burden to
affirmatively show that the court did not consider the applicable sentencing criteria or
that the sentence imposed is ‘strikingly inconsistent’ with the applicable sentencing
factors.” Hull, at ¶18, citing State v. Long, 2014-Ohio-4416, 19 N.E.3d 981, ¶79.
{¶25} During the sentencing hearing, the trial court expressly stated that, in
determining the length of appellant’s sentence, it considered the purposes and
principles of felony sentencing, as set forth in R.C. 2929.11, and the seriousness and
recidivism factors, as delineated in R.C. 2929.12. Notwithstanding this, appellant states
that the record supports the conclusion that the seriousness and recidivism factors were
not considered because the trial court did not discuss favorable factors. However, the
sentencing transcript does not support her assertion. Although the trial court did not
reference any factors under R.C. 2929.12(C) that tend to show that appellant’s conduct
was less serious than the conduct that forms the basis for her crimes, it did cite three
factors under R.C. 2929.12(E) that tend to show that she is not likely to commit future
crimes. Specifically, the trial court noted that appellant had no prior criminal record as
an adult or a juvenile, led a law-abiding life for many years, and expressed remorse for
the harm caused.
{¶26} In regard to seriousness, appellant refers to four favorable statutory
factors: (1) whether the victims induced the crimes; (2) whether the offender acted
under strong provocation; (3) whether the offender caused actual physical harm; and (4)
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whether there was a substantial basis to mitigate the offender’s actions. See R.C.
2929.12(C)(1)-(4). Given the prosecutor’s description as to the manner in which the
four children were treated, the trial court could justifiably find that none of the four
factors apply. As to the “physical harm” factor, the prosecutor read statements from
A.E.M. and S.J.M., in which they both refer to being hit by appellant. As noted above,
A.E.M. stated that appellant not only choked her on one occasion, but also hit her so
hard that her tooth went through her lip.
{¶27} In relation to whether she acted under a strong provocation and whether a
substantial mitigating factor existed, appellant asserts that the three related children had
special needs which made constant supervision necessary. She emphasizes that when
she and her husband first agreed to take the three children in, they were not told the
children had special needs and were not given any instruction on how to take care of
them.
{¶28} First, there is nothing in the record showing that any of the three children
provoked appellant. In the absence of such a showing, the amount of corporeal
punishment imposed upon the children cannot be justified under any circumstances.
Moreover, the two girls stated that the primary cause for the physical punishment was
mistakes in their homework. Second, even if the children did need constant
supervision, this would not warrant keeping them locked up inside their bedrooms for
twenty hours each day. Forcing a child to stay in one room the majority of a day with
nothing to do can only be characterized as inhumane. Third, if appellant and her
husband became incapable of providing proper care, they should have contacted the
authorities who gave them the children in 2003. The child’s special needs cannot be
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invoked as a mitigating factor.
{¶29} Although the trial court did not reference every factor under R.C. 2929.12,
appellant has failed to point to any statement affirmatively showing that the relevant
sentencing factors were not considered. Furthermore, the record does not support the
conclusion that the aggregate ten-year term is “strikingly inconsistent” with the
applicable sentencing factors. Even though there are some factors indicating that
appellant is unlikely to commit future criminal acts, this is clearly outweighed by the
seriousness of the four crimes she committed. As the trial court aptly stated, the victims
were recklessly abused in a cruel manner over a prolonged period of time.
{¶30} Appellant has failed to clearly and convincingly show that the trial court
failed to consider the principles of felony sentencing, or that the aggregate ten-year
sentence is otherwise contrary to law.
{¶31} The judgment of the Ashtabula County Court of Common Pleas is
affirmed.
DIANE V. GRENDELL, J.,
TIMOTHY P. CANNON, J.,
concur.
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