State v. Shank

[Cite as State v. Shank, 2013-Ohio-5368.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
STATE OF OHIO C.A. No. 12CA0104-M
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
PATRICK J. SHANK COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
Appellant CASE No. 12 CR 0395
DECISION AND JOURNAL ENTRY
Dated: December 9, 2013
HENSAL, Judge.
{¶1} Patrick Shank appeals a judgment of the Medina County Common Pleas Court
that convicted him of sexual battery, unlawful sexual conduct with a minor, and contributing to
the unruliness or delinquency of a minor. For the following reasons, this Court affirms.
I.
{¶2} According to R.A., in May 2008, when she was 13 years old, two of Mr. Shank’s
teenage children invited her to their house. While she was there, Mr. Shank provided her and
some other teens with alcoholic beverages. Thereafter, she began visiting and spending the night
at the Shanks’ house on a regular basis. She sometimes received a ride to the house and other
times Mr. Shank picked her up. R.A. testified that there were a number of other teens who
would also spend the night at the house after drinking.
{¶3} R.A. testified that she began a sexual relationship with Mr. Shank’s oldest son J.S.
The next time she received a ride from Mr. Shank, he asked her about the way she had performed
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oral sex on his son. R.A. also testified that Mr. Shank plays in a heavy metal band. One night
when she was at the house, he asked her to style his hair in the bathroom. When she was
finished, Mr. Shank exposed his penis to her and asked her if she would perform oral sex on him.
She ran out of the room and told one of his band mates, who laughed and told her that she should
have complied. She also told Mr. Shank’s second son J.S., who told her that Mr. Shank had just
been kidding.
{¶4} R.A. testified that, sometime in the summer of 2008, she was up late watching
television at the Shanks’ house when Mr. Shank coaxed her off a couch and led her into a room
in the house that he was using as a recording studio. As she was sitting on a stool in the room, he
started making sexual advances toward her and forced her knees apart. He made her lay on the
floor, removed her pants and underwear and had sex with her. When it was over, she went into
the bathroom for a while and then returned to the couch. She testified that she could not leave
the house because she had received a ride to it and was too young to drive. She did not tell
anyone about the incident because she did not want to hurt Mr. Shank’s wife and kids, especially
the younger J.S., who was her best friend.
{¶5} According to R.A., in February 2009 she was spending the night at the Shanks’
house again when Mr. Shank led her into his bedroom, faced her away from him, pushed her
against the headboard of the bed, undid her pants, and had sex with her. After that incident, she
stopped going to the Shanks’ residence for some time, but returned for a party in May 2010.
R.A. testified that she got drunk at the party and went into the downstairs bathroom because she
felt sick. While she was in the bathroom, Mr. Shank came in, leaned her against the door, and
had sex with her. A few months later in August 2010, she was at the house sitting on a chair in
the dining room in the early morning when Mr. Shank entered the room and told her that his wife
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would not have sex with him. R.A. testified that he faced her into a corner of the room and had
sex with her again. She stayed at the house until the younger J.S. woke up, and then called her
mom to get her.
{¶6} R.A. testified that she told one of her friends about having sex with Mr. Shank,
but when the friend started telling other people, including R.A.’s mom, R.A. denied that anything
had happened because she was afraid and did not want to lose the younger J.S. as a friend. In
June 2011, however, she was playing beer pong with Mr. Shank, Mark Survance, and S.K. when
she saw Mr. Shank pull S.K.’s shirt down and attempt to kiss S.K. The next morning, R.A. was
helping Mr. Shank clean up when he tried to pull her pants down and have her perform oral sex
on him. R.A. testified that, after seeing Mr. Shank mistreat another girl and herself again, she
finally decided to contact police. The Grand Jury indicted Mr. Shank for two counts of sexual
battery under Revised Code Section 2907.03(A)(1) arising out of the summer of 2008 and
February 2009 incidents, two counts of unlawful sexual conduct with a minor under Section
2907.04(B)(3) arising out of the May and August 2010 incidents, and two counts of contributing
to the unruliness or delinquency of a minor under Section 2919.24(A)(1) arising from the June
2011 party.
{¶7} Although five of the six charges involved Mr. Shank’s actions against R.A., one
of the contributing-to-the-unruliness-or-delinquency-of-a-minor charges involved his actions
against S.K. According to S.K., one evening in June 2011, when she was 17, Mr. Survance
brought her to the Shank residence. At the house she began drinking and playing beer pong with
Mr. Shank, Mr. Survance, and the younger J.S. Later in the evening, they all left to pick up R.A.
When they got back to the house, they resumed playing beer pong and doing shots of whiskey.
S.K. testified that, at some point her shirt was pulled down, but she could not remember whether
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she had done it or Mr. Shank. She also testified that, at some point, Mr. Shank pulled her to him
and kissed her on the lips. Later, she and Mr. Shank went into Mr. Shank’s bedroom, and Mr.
Shank asked her to sit on his bed with him. She did not feel comfortable doing that, so they
returned to the living room. She further testified that Mr. Shank asked her to go to a photo shoot
as his girlfriend and model for his band. She said that she did not spend the night at the house,
but left with Mr. Survance when some of his friends arrived to take him home.
{¶8} Before and at trial, Mr. Shank moved to prohibit the introduction of “other acts”
testimony from K.A. and N.A., who alleged that they had also been sexually assaulted by Mr.
Shank. According to K.A., she was friends with the older J.S. and regularly spent the night at the
Shank residence after partying and drinking alcohol with other teens. She testified that Mr.
Shank made sexually-oriented comments about her body and rubbed the front of his pants
against her buttocks if he encountered her in the hallway. One night after she turned 18, she was
sleeping in a recliner in the living room when she got up to use the upstairs bathroom. When she
attempted to return to the living room, she saw Mr. Shank in the hallway, so she reentered the
bathroom to avoid him. The bathroom actually had two doors, one to the hallway and one to the
master bedroom. K.A. testified that she thought she would try to go through the master bedroom
to get around Mr. Shank, but ended up running into him in the bedroom. He put her on the bed,
flipped her over, took off her pants and underwear, and had sex with her. After it was over, she
returned to the living room.
{¶9} K.A. testified that a few months later a similar situation happened. She was
sleeping over at the Shanks’ house and got up to use the upstairs bathroom in the middle of the
night. She could not completely lock herself in the bathroom because the lock on the door to the
master bedroom was broken. While she was in the bathroom, Mr. Shank entered from the master
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bedroom. She went into the hallway to get away from him, but he cut her off. She ended up in
the bedroom again where he put her on his bed, undressed her, and had sex with her.
{¶10} K.A. testified that the same scene played out again on a third night. Mr. Shank
entered the upstairs bathroom while she was using it in the middle of the night. She panicked
and ended up in his bedroom again where he put her on the bed, removed her pants and
underwear, and had sex with her. After a similar incident happened a fourth time, she began
distancing herself from the Shanks and, eventually, found a new group of friends. According to
K.A., the incidents occurred over a two-and-a-half year period, but she did not report them to the
police until she learned that Mr. Shank had done similar things to R.A. K.A. testified that R.A.
was at the Shanks’ house about as often as she, that R.A. drank alcohol while at the Shanks’
house and that she had heard Mr. Shank make sexually-oriented comments about R.A.’s body.
{¶11} N.A. testified that she attended parties at the Shanks’ house when she was 16.
She usually attended them with her boyfriend and drank alcohol that Mr. Shank provided. One
night, she was sleeping over at the house with her boyfriend when she got up to use the
bathroom. She was wearing only a bra and pajama pants or shorts. As she was returning from
the bathroom, she passed the room that Mr. Shank was using as a recording studio. Mr. Shank
was in the room, saw her, and asked her to come in to look at something on his computer. When
she got near Mr. Shank, he pulled at her pajamas, grabbed her bra, and pulled her against him.
He rubbed his pelvic area against her and told her that he had a big penis. Next, he put one of his
hands down the front of her pants, inserted a finger into her vagina, and commented on its feel.
At that point, she pushed him away and told him to stop, reminding him that her boyfriend was
in the next room.
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{¶12} N.A. testified that, after she got away from Mr. Shank, she returned to the room
where she was sleeping and laid down next to her boyfriend. The following morning, as she was
taking a shower, Mr. Shank entered the bathroom, opened the shower curtain and tried to grab
her buttocks. He also tried to get in the shower with her until she told him to stop.
{¶13} The trial court admitted the other acts evidence with a limiting instruction. A jury
found Mr. Shank guilty of both sexual battery counts, the unlawful sexual contact with a minor
count related to August 2010, and both counts of contributing to the unruliness or delinquency of
a minor. The trial court sentenced him to concurrent 60-month prison terms for sexual battery,
12 months in prison for unlawful sexual contact with a minor, and 6 months in jail for
contributing to the unruliness or delinquency of a minor. It ordered the 12-month prison term to
run consecutively to the 60-month term and the 6-month jail term to run concurrently, for a total
sentence of 72 months. Mr. Shank has appealed his convictions and sentence, assigning four
errors, which this Court has reordered, in part, for ease of consideration.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED BY PERMITTING THE STATE TO
INTRODUCE OTHER ACT EVIDENCE OF UNCHARGED BAD ACTS OR
WRONGS IN VIOLATION OF EVID. R. 404(B) AND O.R.C. § 2945.59.
{¶14} Mr. Shank argues that the trial court should not have allowed the State to present
K.A.’s and N.A.’s other acts testimony. He contends that their testimony was not admissible
under Revised Code Section 2945.59 and Evidence Rule 404(B).
{¶15} “Evidence that an accused committed a crime other than the one for which he is
on trial is not admissible when its sole purpose is to show the accused’s propensity or inclination
to commit crime or that he acted in conformity with bad character.” State v. Williams, 134 Ohio
7
St.3d 521, 2012-Ohio-5695, ¶ 15. Yet, “Evid.R. 404(B) contains a non-exhaustive list of
exceptions under which other acts evidence may be admitted for a purpose other than to show
propensity.” State v. Calise, 9th Dist. Summit No. 26027, 2012-Ohio-4797, ¶ 41. The rule
provides that “[e]vidence may be admissible to show ‘proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.’” In re J.C., 9th Dist.
Nos. 26229 & 26233, 2012-Ohio-3144, ¶ 13, quoting Evid.R. 404(B); see also R.C. 2945.59.
{¶16} The Ohio Supreme Court has held that, when “considering other acts evidence,
trial courts should conduct a three-step analysis.” Williams at ¶ 19.
The first step is to consider whether the other acts evidence is relevant to making
any fact that is of consequence to the determination of the action more or less
probable than it would be without the evidence. The next step is to consider
whether evidence of the other crimes, wrongs, or acts is presented to prove the
character of the accused in order to show activity in conformity therewith or
whether the other acts evidence is presented for a legitimate purpose, such as
those stated in Evid.R. 404(B). The third step is to consider whether the probative
value of the other acts evidence is substantially outweighed by the danger of
unfair prejudice.
(Internal citations omitted.) Id. at ¶ 20. “[D]ecisions regarding the admissibility of other-acts
evidence under Evid.R. 404(B) are evidentiary determinations that rest within the sound
discretion of the trial court.” State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, syllabus.
“Appeals of such decisions are considered by an appellate court under an abuse-of-discretion
standard of review.” Id.{¶17} In Williams, the Grand Jury indicted Van Williams for sexually abusing 14-year-
old J.H., a boy that he was mentoring at his church. At trial, the State moved to admit evidence
that Mr. Williams had a similar relationship with a different teenage boy, A.B., a 16-year-old
member of the high school swim team Mr. Williams coached. The State argued that Mr.
Williams’s relationship with A.B. paralleled his relationship with J.H., “indicated a course of
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conduct constituting a common plan, demonstrated a distinct pattern of sexual conduct
constituting a modus operandi, and, by reasonable inference, tended to prove [Mr.] Williams’s
intent to achieve sexual gratification with teenage males.” Williams at ¶ 5.
{¶18} Applying the three-part test, the Ohio Supreme Court determined that A.B.’s
testimony was relevant because it tended to show Mr. Williams’s motive and the plan he
executed of targeting, mentoring, grooming, and abusing teenage boys, which could corroborate
J.H.’s testimony. Id. at ¶ 22. It explained that A.B.’s testimony was also relevant regarding
whether Mr. Williams’s intent was sexual gratification. As for the second part of the test, the
Supreme Court noted that the trial court twice gave a limiting instruction that the evidence was
not being offered to prove Mr. Williams’s character, and it presumed that the jury followed those
instructions. Id. at ¶ 23. Regarding the third step, the Supreme Court explained that, in light of
the trial court’s instructions, A.B.’s testimony was not unduly prejudicial. According to the
Supreme Court, the “instruction lessened the prejudicial effect of A.B’s testimony, and A.B.
corroborated J.H.’s testimony about the sexual abuse, which had been denied by [Mr.]
Williams.” Id. at ¶ 24. The Supreme Court concluded that A.B.’s testimony was admissible
“because it helped to prove motive, preparation, and plan on the part of [Mr.] Williams [and]
[t]he prejudicial effect did not substantially outweigh the probative value of that evidence.” Id.
{¶19} As in Williams, K.A.’s and N.A.’s testimony was relevant because it tended to
show Mr. Shank’s motive and that he had a plan of targeting for sexual activity teenage girls who
spent the night at his house after drinking alcohol. As the trial court noted, K.A.’s and N.A.’s
testimony was “highly probative of whether [Mr. Shank] acted in conformity with a plan or a
purpose or an intent to commit these sexual offenses against [R.A.].” Regarding the second
prong, the trial court, like in Williams, gave a limiting instruction before K.A. testified about
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other acts, before N.A. testified, and again when it charged the jury. There is nothing in the
record that suggests that the jury did not follow the court’s instructions. Finally, in light of the
limiting instruction, and in light of Williams, we do not find that the trial court abused its
discretion when it found that the prejudicial effect of K.A.’s and N.A.’s corroborating testimony
did not outweigh its probative value. See Williams, 134 Ohio St.3d 521, 2012-Ohio-5695 at ¶
24.
{¶20} Upon review of the record, we conclude that the trial court did not abuse its
discretion in admitting the other acts testimony of K.A. and N.A. Mr. Shank’s first assignment
of error is overruled.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED IN DENYING MR. SHANK’S MOTION FOR
JUDGMENT OF ACQUITTAL, PURSUANT TO CRIM. R. 29, AS
INSUFFICIENT EVIDENCE WAS OFFERED AT TRIAL TO SUPPORT HIS
CONVICTIONS.
{¶21} Mr. Shank next argues that his convictions are not supported by sufficient
evidence. Under Rule 29(A) of the Ohio Rules of Criminal Procedure, a defendant is entitled to
a judgment of acquittal on a charge against him “if the evidence is insufficient to sustain a
conviction * * *.” Whether a conviction is supported by sufficient evidence is a question of law
that this Court reviews de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). In order to
determine whether the evidence before the trial court was sufficient to sustain a conviction, this
Court must review the evidence in a light most favorable to the prosecution. State v. Jenks, 61
Ohio St.3d 259, 273 (1991).
An appellate court’s function when reviewing the sufficiency of the evidence to
support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, would convince the average mind
of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is
whether, after viewing the evidence in a light most favorable to the prosecution,
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any rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt.
Id. at paragraph two of the syllabus. “In essence, sufficiency is a test of adequacy.” Thompkins
at 386.
{¶22} Mr. Shank argues that there was no credible evidence that he had sexual conduct
with R.A., let alone that he coerced her into it. He argues that R.A.’s testimony was full of
inconsistencies and that her conduct was not consistent with the conduct of a victim of sexual
abuse. He also argues that the State failed to prove that there was underage consumption of
alcohol at his house.
{¶23} Under the sexual abuse statute, “[n]o person shall engage in sexual conduct with
another, not the spouse of the offender, when any of the following apply: [t]he offender
knowingly coerces the other person to submit by any means that would prevent resistance by a
person of ordinary resolution.” R.C. 2907.03(A)(1). “A person acts knowingly, regardless of his
purpose, when he is aware that his conduct will probably cause a certain result or will probably
be of a certain nature. A person has knowledge of circumstances when he is aware that such
circumstances probably exist.” R.C. 2901.22(B). “Coercion means to compel by pressure,
threat, force or threat of force.” State v. Walker, 9th Dist. Wayne No. 10CA0011, 2011-Ohio-
517, ¶ 6, quoting In re Jordan, 9th Dist. Lorain No. 01CA007804, 2001 WL 1044080, *1 (Sept.
12, 2001).
{¶24} R.A. testified that, in the summer of 2008, she was in Mr. Shank’s recording
studio when Mr. Shank pulled her knees apart, made her get down on the floor, and had sex with
her. She also testified that, on February 7, 2009, Mr. Shank took her by the hand into his
bedroom, faced her away from him, pushed her against the headboard, undid her pants, and had
sex with her. Her testimony, viewed in a light most favorable to the State, was sufficient to
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establish coercion and that she and Mr. Shank engaged in sexual conduct. R.C. 2907.01(A).
R.A. further testified that Mr. Shank had sex with her in August 2010, when she was 15, which
was sufficient to support his conviction for unlawful sexual conduct with a minor under Section
2907.04(A). Regarding alcohol consumption, R.A. and S.K. both testified that Mr. Shank served
them alcoholic beverages while they played beer pong with him on June 9, 2011. Their
testimony is sufficient to support his convictions for contributing to the unruliness or
delinquency of a minor under Section 2919.24(A)(1).
{¶25} Mr. Shank’s arguments about the credibility of the witnesses go to the weight of
the evidence not its adequacy. Upon review of the record, we conclude that there was sufficient
evidence to support his convictions. Mr. Shank’s third assignment of error is overruled.
ASSIGNMENT OF ERROR II
MR. SHANK’S CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT
OF THE EVIDENCE, SUCH THAT IF SAID CONVICTIONS ARE NOT
OVERTURNED THEY WILL RESULT IN A MANIFEST MISCARRIAGE OF
JUSTICE.
{¶26} Mr. Shank next argues that his convictions are against the manifest weight of the
evidence. If a defendant asserts that his convictions are against the manifest weight of the
evidence:
[A]n appellate court must review the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of witnesses and determine
whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way
and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.
State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986).
{¶27} Mr. Shank argues that the prosecution’s witnesses lacked credibility and that his
own witnesses established that he has never served alcohol to minors or engaged in inappropriate
sexual activities. He notes that R.A. never screamed out during the alleged attacks, did not tell
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anyone about them at the time, admitted that she lied about the incidents on multiple occasions
and provided inconsistent versions of the alleged incidents to police. He notes that, contrary to
R.A.’s testimony that Mr. Shank told his children to take sleeping pills on the nights of the
alleged abuse, the Shanks’ family doctor denied that he had prescribed such medication to the
family, and police did not find any sleeping pills during a search of the house. He also notes that
neighbors never reported any loud music or underage drinking at the house. He further notes
that R.A. continued to return to his house for sleepovers after the alleged events happened, which
is inconsistent with the behavior of a sexual abuse victim.
{¶28} Although R.A. may have initially denied the sexual activity to her parents and
friends and was inconsistent about some of the details when describing the events years after
they occurred, her testimony about what happened between she and Mr. Shank was similar to the
testimony of K.A. and N.A. R.A. and S.K.’s testimony about Mr. Shank serving alcohol to
minors was corroborated by a photograph that appears to show Mr. Shank mixing drinks for a
group of teens and a photograph that Mr. Survance took of S.K. and Mr. Shank while they were
playing beer pong. While Mr. Shank’s wife claimed that the family only plays the game with
water, Mr. Survance’s photograph shows two partially-empty beer bottles on the table, one in
front of Mr. Shank and the other in front of S.K.
{¶29} “[T]he weight to be given the evidence and the credibility of the witnesses are
primarily for the trier of the facts.” State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of
the syllabus. In reaching its verdict, the jury was in the best position to evaluate the credibility of
the witnesses and it was entitled to believe all, part, or none of the testimony of each witness.
Prince v. Jordan, 9th Dist. Lorain No. 04CA008423, 2004-Ohio-7184, 2004 WL 3017207, ¶ 35,
citing State v. Jackson, 86 Ohio App.3d 29, 33 (4th Dist.1993). “This Court will not overturn the
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[jury]’s verdict on a manifest weight of the evidence challenge only because [it] chose to believe
certain witnesses’ testimony over the testimony of others.” State v. Brown, 9th Dist. Wayne No.
11CA0054, 2013-Ohio-2945, ¶ 42. After reviewing the record, we conclude that the jury did not
lose its way when it chose to believe the testimony of R.A. and S.K. over the testimony of Mr.
Shank’s witnesses who failed to establish that they were at the parties and sleepovers when the
alleged attacks occurred. Mr. Shank’s second assignment of error is overruled.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT ERRED IN IMPOSING SENTENCE UPON MR. SHANK.
{¶30} Mr. Shank argues that the trial court improperly sentenced him to the maximum
term of incarceration for the sexual abuse offenses. He argues that the court failed to make any
reference in the record to justify its imposition of the maximum term of incarceration or the
factors it considered before ordering his sentence. According to Mr. Shank, his conduct did not
constitute the worst form of the offenses and was not more serious than the conduct of others
who have committed the offense. He also argues that his past criminal history does not support
the imposition of the maximum term.
{¶31} This Court reviews sentences pursuant to the two-step approach set forth in State
v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912.
First, [we] must examine the sentencing court’s compliance with all applicable
rules and statutes in imposing the sentence to determine whether the sentence is
clearly and convincingly contrary to law. If this first prong is satisfied, the trial
court's decision in imposing the term of imprisonment is reviewed under the
abuse-of-discretion standard.
Id. at ¶ 26.
{¶32} The Ohio Supreme Court held in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-
856, paragraph seven of the syllabus, that “[t]rial courts have full discretion to impose a prison
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sentence within the statutory range and are no longer required to make findings or give their
reasons for imposing maximum * * * sentences.”
Nevertheless, in exercising its discretion, the court must carefully consider the
statutes that apply to every felony case. Those include R.C. 2929.11, which
specifies the purposes of sentencing, and R.C. 2929.12, which provides guidance
in considering factors relating to the seriousness of the offense and recidivism of
the offender.
State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, ¶ 38.
{¶33} Mr. Shank does not dispute that his sentence is within the statutory range for a
felony of the third degree. Regarding sentencing factors, the court specifically noted that it had
considered the “principles and the purposes of sentencing” and the “seriousness * * * and * * *
recidivism factors,” which included the factors listed in Revised Code Section 2929.12. It also
wrote that it had considered those factors in its judgment entry. The court discussed Mr. Shank’s
prior convictions on the record and mentioned its consideration of them in its judgment.
Regarding the sexual abuse that R.A. endured, the court found that “[t]he facts of the case * * *
couldn’t be more terrible if you look at it through the eyes of the victim.”
{¶34} The record indicates that the trial court ordered a presentence investigation report
prior to Mr. Shank’s sentencing, but it was not made a part of the record on appeal. This Court
has held that, if a presentence investigation report is prepared, there is a presumption that the trial
court used it when imposing sentence. State v. Watson, 9th Dist. Medina No. 12CA0082-M,
2013-Ohio-3392, ¶ 7. We have also held that it is the appellant’s duty to ensure that the
appellate record is complete. Id. In light of the fact that we are unable to review the presentence
investigation report, we must presume the validity of the sentence that the trial court imposed for
the sexual abuse charges. Id.15
{¶35} Mr. Shank also argues that the court incorrectly made his sentence for unlawful-
sexual-conduct-with-a-minor offense consecutive. He contends that the court’s findings that
consecutive sentences were necessary to protect the public and to punish him, that consecutive
sentences were not disproportionate to the seriousness of his conduct, and that the harm in his
case was so great that a single term would not adequately reflect the seriousness of his conduct
are not supported by the facts of the case. R.C. 2929.14(C)(4). According to Mr. Shank, he does
not have an extensive criminal history, he did not commit any of the offenses while on probation
or awaiting trial, and there is no evidence in the record that the harm he caused was so unusual or
significant to warrant consecutive sentences. Because the record does not contain the
presentence investigation report, however, this Court is unable to evaluate the merits of Mr.
Shank’s argument.
{¶36} Mr. Shank also argues that the trial court improperly applied the recidivism
factors set out in Section 2929.12. He asserts that the court incorrectly found that he had a
higher risk of recidivism because of his criminal history. According to Mr. Shank, his only
convictions were three misdemeanors from 20 years ago, which is too far in the past to suggest
that recidivism is more likely. To the contrary, he contends that the fact that he went 20 years
without a conviction suggests that he is less likely to offend.
{¶37} Section 2929.12(D) provides that a sentencing court shall consider whether “the
offender has a history of criminal convictions.” R.C. 2929.12(D)(2). It also provides that, if an
offender has a history of criminal convictions, “the offender is likely to commit future crimes.”
R.C. 2929.12(D). At sentencing and in its judgment entry, the trial court simply noted that Mr.
Shank has a history of criminal convictions and that, under Section 2929.12(D), it makes
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recidivism more likely. Upon review of the record, we conclude that the trial court properly
applied Section 2919.12(D). Mr. Shank’s fourth assignment of error is overruled.
III.
{¶38} The trial court did not abuse its discretion when it admitted other acts evidence,
Mr. Shank’s convictions are supported by sufficient evidence and are not against the weight of
the evidence, and the court did not err when it imposed Mr. Shank’s sentence. The judgment of
the Medina County Common Pleas Court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
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CARR, P. J.
WHITMORE, J.
CONCUR.
APPEARANCES:
KENNETH C. STAIDUHAR, Attorney at Law, for Appellant.
DEAN HOLMAN, Prosecuting Attorney, and MATTHEW A. KERN, Assistant Prosecuting
Attorney, for Appellee.