State v. Allen

[Cite as State v. Allen, 2022-Ohio-268.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Earle E Wise, Jr., P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
JAMIE EARL ALLEN : Case No. 2021CA00051
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2020 CR 1697
JUDGMENT: Affirmed
DATE OF JUDGMENT: January 31, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KYLE L. STONE GEORGE URBAN
PROSECUTING ATTORNEY 116 Cleveland Avenue NW
STARK COUNTY, OHIO Suite 808
Canton, OH 44702
By: Vicky L. DeSantis
110 Central Plaza South - Suite 510
Canton, OH 44702-1413
Stark County, Case No. 2021CA00051 2
Wise, Earle, P.J.
{¶ 1} Defendant-Appellant Jamie Earl Allen appeals the April 7, 2021 judgment
of the Stark County Court of Common Pleas memorializing his conviction for one count
of rape and sentencing him to life imprisonment without the possibility of parole. Plaintiff-
Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} In 2020, six-year-old A.O. was living with her mother L.G. and her two
younger siblings in an apartment next to appellant, his girlfriend Kristina, and her children.
{¶ 3} L.G. and Kristina had gone to school together and became reacquainted
after L.G. moved in. L.G. worked nights and Kristina and appellant frequently babysat
A.O. and her siblings. At some point L.G. and Kristina had a falling out after Kristina's
parents died and she withdrew from others. Appellant, however, advised L.G. that she
and her children were like family to him and Kristina, and he would continue to watch A.O.
and her siblings himself.
{¶ 4} On April 1, 2021, A.O. spent the night at appellant's apartment with her
siblings. When L.G. picked A.O. up the following day A.O. told her mother appellant had
been touching her privates. A.O. complained her privates hurt and were burning. When
L.G. examined A.O.'s privates she found the area swollen and red.
{¶ 5} L.G. went next door and banged aggressively on appellant's door. When
appellant failed to answer, L.G. went back to her own apartment. Appellant appeared 10
minutes later demanding to know why she was banging on his door. L.G. told appellant
"you know what you did and I'm not going to state anything further to you. * * * I'll let you
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deal with the police." Transcript of Trial (T.), March 4, 2021 at 236. Appellant appeared
startled and went back to his apartment.
{¶ 6} L.G. contacted law enforcement and Canton Police Detective Victoria
Sellers arrived on the scene. Sellers directed L.G. to keep A.O. in the clothing she had
been wearing overnight and take her to Akron Children's Hospital.
{¶ 7} Upon arrival at Akron Children's, social worker Bobbi Jo Niedenthal spoke
with A.O. alone. Asked why she was at the hospital A.O. told Niedenthal because her
privates hurt because appellant had touched her privates with his hand and his privates
both inside and outside her own private. A.O. told Niedenthal she used her privates to go
to the bathroom.
{¶ 8} A.O. was examined at the hospital and a rape evidence collection kit was
completed. The rape kit and a DNA standard from appellant were later sent to the London
Ohio Bureau of Criminal Investigation (BCI) crime lab.
{¶ 9} Criminalist Hallie Dreyer of the BCI analyzed A.O.'s rape kit. No DNA foreign
to A.O. was found on the anal, vaginal, or oral swabs collected from A.O. Male DNA was
found on the swab used on the inside and outside waistband of the pants A.O. wore the
evening in question, but not enough for comparison. Dreyer therefore conducted Y-STR
testing, a Y-chromosome specific testing, on the swab. The Y-STR testing revealed a
profile consistent with appellant and not expected to be seen more frequently than once
in every 1,864 males in the United States population.
{¶ 10} On September 21, 2020, the Stark County Grand Jury returned an
indictment charging appellant with one count of rape involving a child less than 10 years
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of age. Appellant pled not guilty and elected to proceed to a jury trial which began on
March 3, 2021.
{¶ 11} Before trial, on June 11, 2021, a hearing was held to determine A.O.
competence to testify. The trial court asked questions of A.O. regarding the difference
between the truth and a lie and the consequences for telling a lie and tested her ability to
recollect and relate current and past events. Given the opportunity counsel for appellant
asked no questions. The trial court withheld ruling until the first day of trial.
{¶ 12} On the first day of trial the trial court found A.O. competent to testify and
appellant lodged no objection. The state then presented seven witnesses and elicited the
above outlined facts. Appellant testified in his own defense and presented testimony from
Dr. Julie Heining, a DNA expert.
{¶ 13} Dr. Heining testified that since the swab on which the Y-STR testing was
conducted was used to swab both the inside and outside of A.O. pants, it is impossible to
determine which side of the pants appellant's DNA located on.
{¶ 14} Appellant testified that while A.O was dancing around bent over, her pants,
which appellant stated were two sizes too small, had slid down. He testified he pulled her
pants up. He further testified that Kristina no longer wanted to babysit for L.G. due to
payment issues. He stated when L.G. approached him to continue babysitting, he felt bad
for her and agreed to do so. He denied L.G. ever confronted him with any allegation.
{¶ 15} After hearing the evidence and deliberating, the jury found appellant guilty
as charged.
{¶ 16} At a later sentencing hearing the state produced evidence of an
investigation involving appellant and circumstances nearly identical to the instant matter.
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The investigation never resulted in an indictment because the victim and her family moved
out of state and could not be located. Appellant offered allocution but did not challenge
any of the trial court's findings made thereafter. The trial court sentenced appellant to life
without the possibility of parole.
{¶ 17} Appellant timely filed an appeal and the matter is now before this court for
consideration. He raises four assignments of error for our consideration as follow:
I
{¶ 18} "THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO
SUSTAIN A CONVICTION AGAINST THE APPELLANT, AND THE CONVICTION MUST
BE REVERSED."
II
{¶ 19} "THE APPELLANT'S CONVICITON WAS NOT SUPPORTED BY THE
MANIFEST WEIGHT OF THE EVIDENCE PRESENTED, AND MUST BE REVERSED."
III
{¶ 20} "THE TRIAL COURT ERRED BY FINDING A.O., A CHILD UNDER THE
AGE OF TEN, WAS COMPETENT TO TESTIFY."
IV
{¶ 21} "THE TRIAL COURT ERRED BY SENTNENCING THE DEFENDANT TO
LIFE WITHOUT THE POSSIBILITY OF PAROLE AS IT WAS CONTRARY TO LAW AND
NOT SUPPORTED BY THE RECORD."
I, II
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{¶ 22} We address appellant's first and second assignments of error together. In
these assignments of error, appellant argues his convictions are against the manifest
weight and sufficiency of the evidence. We disagree.
Applicable Law
{¶ 23} On review for sufficiency, a reviewing court is to examine the evidence at
trial to determine whether such evidence, if believed, would support a conviction. State
v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). "The relevant inquiry is whether,
after viewing the evidence in a light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime proven beyond a reasonable
doubt." Jenks at paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S.
307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). On review for manifest weight, a reviewing
court is to examine 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 jury 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. Martin, 20 Ohio
App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). See also, State v. Thompkins, 78 Ohio
St.3d 380, 678 N.E.2d 541 (1997). The granting of a new trial "should be exercised only
in the exceptional case in which the evidence weighs heavily against the conviction."
Martin at 175.
The Conviction
{¶ 24} Appellant was convicted of one count of rape pursuant to R.C.
2907.02(A)(1)(b). Relevant to this matter that section prohibits any person from engaging
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in sexual conduct with a person under the age of 13. In this matter the jury made a further
special finding, specifically that the victim was under the age of 10.
{¶ 25} Sexual conduct includes vaginal intercourse between a male and female as
well as insertion, however slight, of any body part or instrument into the vaginal or anal
cavity of another. R.C. 2907.01(A).
Evidence Supporting Appellant's Conviction
{¶ 26} A.O.'s mother L.G. testified that on April 2, 2020, she picked A.O. up from
appellant's home where A.O. had spent the night. A.O. As they drove to get something to
eat, A.O. spontaneously stated appellant had been touching her privates. L.G. later
confronted appellant who "took a very deep gulp" and looked like "he'd seen a ghost." T.
235-236.
{¶ 27} L.G. further testified A.O. complained that her privates hurt and were
burning. When L.G. examined the area, she observed it was swollen and red. T. 237.
{¶ 28} A.O., 7-years-old at the time of her testimony, told the jury that during the
night, appellant took her clothes off, touched her bottom and private parts, and put his
finger and his private in her private. T. 272-274.
{¶ 29} Bobbi Jo Niedenthal, a social worker at Akron Children's Hospital, testified
she spoke with A.O. upon her arrival at Akron Children's Hospital. A.O. told Niedenthal
she was at Children's Hospital because her privates hurt, and her neighbor, appellant,
had touched "both" of her privates with his hand and also with his private both inside and
outside her private. A.O. told Niedenthal she uses her privates to go to the bathroom. T.
290-292.
Appellant's Arguments
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{¶ 30} Appellant argues A.O.'s testimony was inconsistent and the testimony of
L.G. was not credible.
{¶ 31} First, " '[w]hile the jury may take note of the inconsistencies and resolve or
discount them accordingly * * * such inconsistencies do not render defendant's conviction
against the manifest weight or sufficiency of the evidence.' " State v. Craig, Franklin App.
No. 99AP-739, 2000 WL 297252, (Mar. 23, 2000) *3, quoting State v. Nivens, Franklin
App. No. 95APA09-1236, 1996 WL 284714, (May 28, 1996) *3. A.O. was 7-years-old the
day she testified. The jury was free to use their life experiences in assessing the testimony
of a child verses an adult and draw its conclusion. Moreover, while A.O.'s testimony may
have contained some inconsistencies, those inconsistencies pertained to minor details
such as where she slept that night, not as to the details of the rape. A.O.'s recitation of
the facts of the rape were consistent across disclosures from her mother, to the social
worker, to the jury.
{¶ 32} Next, it is the duty of the trier of fact, not this court, to assess the credibility
of the witnesses. The jury is in the best position to assess credibility as they see and hear
the witness testify. Further, the jurors need not believe all of a witness's testimony, but
may accept only portions of it as true. State v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d
1096 (1992). Appellant argues L.G. lacked credibility because she never took A.O. to the
Stark County Children's Network for an examination and interview. L.G. testified,
however, that A.O. was examined at Akron Children's Hospital and a rape evidence
collection kit was also completed. L.G. stated A.O. was so traumatized by that experience
that she chose not to take A.O. to the Children's Network. T. 247.
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{¶ 33} Finally, appellant argues the state presented no direct evidence to support
appellant's conviction. While we agree the evidence may have been circumstantial, we
note that circumstantial evidence has the same probative value as direct evidence. State
v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991) paragraph one of the syllabus.
{¶ 34} We reject appellant's credibility and inconsistency arguments and find his
conviction is supported by sufficient evidence.
{¶ 35} Appellant's manifest weight arguments repeat his sufficiency arguments
with the addition of an argument that the Y-STR DNA evidence presented by the state
was confusing. We note appellant hired his own DNA expert to explain the DNA evidence
to the jury. Specifically, appellants expert clarified it was not possible to determine if
appellant's DNA was recovered from the inside or outside of the waistband of A.O.'s pants
because the same swab was used for both areas. T. 393.
{¶ 36} Upon examination of the entire record, the evidence presented, reasonable
inferences drawn therefrom, and consideration of the credibility of the witnesses, we find
the jury did not lose its way in finding appellant guilty as charged. We therefore conclude
appellant's conviction is not against the manifest weight of the evidence.
{¶ 37} The first and second assignments of error are overruled
III
{¶ 38} In his third assignment of error, appellant argues the trial court erred by
finding the six-year-old victim competent to testify. We disagree.
Applicable Law
{¶ 39} Every person is competent to be a witness except those of unsound mind,
and children under ten years of age who appear incapable of receiving just impressions
Stark County, Case No. 2021CA00051 10
of the facts respecting which they are examined, or of relating them truly. Evid.R. 601(A).
In determining whether a child under the age of ten is competent to testify, the trial court
must consider: (1) the child's ability to receive accurate impressions of fact or to observe
acts about which he or she will testify, (2) the child's ability to recollect those impressions
or observations, (3) the child's ability to communicate what was observed, (4) the child's
understanding of truth and falsity, and (5) the child's appreciation of his or her
responsibility to be truthful. State v. Frazier, 61 Ohio St.3d 247, 574 N.E.2d 483 (1991).
To reverse a finding of competency, we must find the trial court abused its discretion.
State v. Lewis, 4 Ohio App.3d 275, 448 N.E.2d 487 (3rd Dist.1982).
Appellant's Argument
{¶ 40} Appellant does not challenge the trial court's finding of competency or its
questioning of the child victim. In fact appellant states the trial court's questioning of A.O.
was satisfactory. Instead, appellant argues A.O.'s trial testimony was inconsistent,
therefore allegedly demonstrating her lack of competence.
{¶ 41} We first note appellant made no objection to A.O.'s competency either
during the competency hearing or during A.O.'s trial testimony. Other than asking the trial
court to have A.O. define the word promise, appellant asked no questions of A.O. during
the competency hearing. Transcript of Competency Hearing January 26, 2021, 22-23.
Appellant further did not object when the trial court found A.O. competent to testify. T.
207-208.
{¶ 42} Second, in State v. Jones, 12th Dist. Brown No. CA2000-11-032, 2001 WL
1402638 at *6, our brethren in the Twelfth District noted:
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[I]t is not the role of the trial judge to determine that everything a child
will testify to is accurate, but whether the child has the intellectual
capacity to accurately and truthfully recount events. State v. Leach
(Feb. 20, 2001), Clermont CA2000-05-033, unreported, at 5. Any
inconsistencies between [a child's] trial testimony and the testimony
of other witnesses relate to [the child's] credibility, not [their]
competency. See id.; State v. Rayburn (Apr. 24, 2000), Clinton
CA99-03-005, unreported, at 6. [The child's] credibility was for the
jury's consideration.
{¶ 43} Appellant's argument is a credibility argument, not a competency argument.
As noted above, A.O.'s credibility was a matter for the jury's consideration. We therefore
overrule the third assignment of error.
IV
{¶ 44} In his final assignment of error, appellant argues the trial court erred in
sentencing him to life without the possibility of parole when such sentence was contrary
to law and not supported by the record. We disagree.
The Available Sentences
{¶ 45} Appellant was convicted of the rape of six-year-old child. R.C. 2907.02(B)
states in relevant part:
[I]f the victim under division (A)(1)(b) of this section is less than ten
years of age, in lieu of sentencing the offender to a prison term or
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term of life imprisonment pursuant to section 2971.03 of the Revised
Code, the court may impose upon the offender a term of life without
parole. If the court imposes a term of life without parole, pursuant to
this division, division (F) of section 2971.03 of the Revised Code
applies, and the offender automatically is classified a tier III sex
offender/child victim offender, as described in that division.
{¶ 46} In accordance with R.C. 2907.02(B), R.C. 2971.03(B)(1)(b) provides in
relevant part:
[I]f a person is convicted of or pleads guilty to a violation of division
(A)(1)(b) of section 2907.02 of the Revised Code committed on or
after January 2, 2007, if division (A)1 of this section does not apply
regarding the person, and if the court does not impose a sentence of
life without parole when authorized pursuant to division (B) of section
2907.02 of the Revised Code, the court shall impose upon the person
an indefinite prison term consisting of one of the following:
(b) If the victim was less than ten years of age, a minimum term of
fifteen years and a maximum of life imprisonment.
Appellant's Arguments
{¶ 47} Appellant makes several arguments under this assignment of error. First,
he accuses the trial court of improperly weighing the principals and purposes of felony
sentencing contained in R.C. 2929.11 and the seriousness and recidivism factors
Stark County, Case No. 2021CA00051 13
contained in R.C. 2929.12 when it imposed a sentence of life without the possibility of
parole. We disagree.
{¶ 48} This court reviews felony sentences using the standard of review set forth
in R.C. 2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231,
¶ 22; State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶ 31.
Subsection (G)(2) sets forth this court's standard of review as follows:
(2) 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.
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:
(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;
(b) That the sentence is otherwise contrary to law.
Stark County, Case No. 2021CA00051 14
{¶ 49} "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." Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three
of the syllabus.
{¶ 50} "A sentence is not clearly and convincingly contrary to law where the trial
court 'considers the principles and purposes of R.C. 2929.11, as well as the factors listed
in R.C. 2929.12, properly imposes post release control, and sentences the defendant
within the permissible statutory range' " State v. Morris, 5th Dist. Ashland No. 20-COA-
015, 2021-Ohio-2646, ¶ 90, quoting State v. Dinka, 12th Dist. Warren Nos. CA2019-03-
022 and CA2019-03-026, 2019-Ohio-4209, ¶ 36.
{¶ 51} There is no dispute that a sentence of life without the possibility of parole
is within the statutory range for a first degree felony rape of a child under the age of 10.
Appellant instead argues the trial court failed to properly consider the principles and
purposes of felony sentencing under R.C. 2929.11 and the seriousness and recidivism
factors under R.C. 2929.12.
{¶ 52} R.C. 2929.11 governs the overriding purposes of felony sentencing and
states the following in pertinent part:
(A) A court that sentences an offender for a felony shall be guided by
the overriding purposes of felony sentencing. The overriding
purposes of felony sentencing are to protect the public from future
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crime by the offender and others, to punish the offender, and to
promote the effective rehabilitation of the offender using the
minimum sanctions that the court determines accomplish those
purposes without imposing an unnecessary burden on state or local
government resources. To achieve those purposes, the sentencing
court shall consider the need for incapacitating the offender,
deterring the offender and others from future crime, rehabilitating the
offender, and making restitution to the victim of the offense, the
public, or both.
(B) A sentence imposed for a felony shall be reasonably calculated
to achieve the three overriding purposes of felony sentencing set
forth in division (A) of this section, commensurate with and not
demeaning to the seriousness of the offender's conduct and its
impact upon the victim, and consistent with sentences imposed for
similar crimes committed by similar offenders.
{¶ 53} R.C. 2929.12 governs factors to consider in felony sentencing and states
the following in pertinent part:
(A) Unless otherwise required by section 2929.13 or 2929.14 of the
Revised Code, a court that imposes a sentence under this chapter
upon an offender for a felony has discretion to determine the most
effective way to comply with the purposes and principles of
Stark County, Case No. 2021CA00051 16
sentencing set forth in section 2929.11 of the Revised Code. In
exercising that discretion, the court shall consider the factors set forth
in divisions (B) and (C) of this section relating to the seriousness of
the conduct, the factors provided in divisions (D) and (E) of this
section relating to the likelihood of the offender's recidivism, and the
factors set forth in division (F) of this section pertaining to the
offender's service in the armed forces of the United States and, in
addition, may consider any other factors that are relevant to
achieving those purposes and principles of sentencing.
{¶ 54} R.C. 2929.11 does not require the trial court to make any specific findings
as to the purposes and principles of sentencing. Likewise, R.C. 2929.12 does not require
the trial court to "use specific language or make specific findings on the record in order to
evince the requisite consideration of the applicable seriousness and recidivism factors."
State v. Arnett, 88 Ohio St.3d 208, 215, 724 N.E.2d 793 (2000). Therefore, although there
is a mandatory duty to "consider" the relevant statutory factors under R.C. 2929.11 and
2929.12, the sentencing court is not required to engage in any factual findings under said
statutes. State v. Bement, 8th Dist. Cuyahoga No. 99914, 2013-Ohio-5437, ¶ 17; State v.
Combs, 8th Dist. Cuyahoga No. 99852, 2014-Ohio-497, ¶ 52. "The trial court has no
obligation to state reasons to support its findings, nor is it required to give a talismanic
incantation of the words of the statute, provided that the necessary findings can be found
in the record and are incorporated into the sentencing entry." State v. Webb, 5th Dist.
Muskingum No. CT2018-0069, 2019-Ohio-4195, ¶ 19.
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{¶ 55} Moreover, as recently stated by the Supreme Court of Ohio in State v.
Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 39, R.C.
2953.08(G)(2)(b) "does not provide a basis for an appellate court to modify or vacate a
sentence based on its view that the sentence is not supported by the record under R.C.
2929.11 and 2929.12." "Nothing in R.C. 2953.08(G)(2) permits an appellate court to
independently weigh the evidence in the record and substitute its judgment for that of the
trial court concerning the sentence that best reflects compliance with R.C. 2929.11 and
2929.12" Id. at 4
{¶ 56} In the instant matter, the trial court indicated during the sentencing hearing
and in its judgment entry that it had considered R.C. 2929.11 and R.C. 2929.12 in
fashioning appellant's sentence. Transcript of Sentencing (T.S.) 39-40. That was all the
trial court was required to do. The trial court went further, however and set forth its findings
under each code section on the record. Upon review, we find the trial court properly
weighed the appropriate considerations under R.C. 2929.11 and R.C. 2929.12.
{¶ 57} Appellant next argues the trial court erred by finding his sentence was
consistent with the sentence imposed in State v. McClellan, 5th Dist. Stark No.
2017CA00193, 2018-Ohio-3355. McClellan was also convicted of the rape of a victim
under the age of 10 and sentenced to life without the possibility of parole. Appellant
argues the comparison is erroneous because the defendant in McClellan had prior
convictions and he did not. Appellant failed, however to raise any objection during his
sentencing hearing and has therefore waived the issue. If appellant believed his sentence
was disproportionate to the sentence imposed in McClellan, he was obligated to raise the
Stark County, Case No. 2021CA00051 18
issue with the trial court and present some evidence in order to preserve the matter for
appeal. State v. Ewert, 5th Dist. Muskingum No. CT2012-0002, 2012-Ohio-2671 ¶ 32.
{¶ 58} Finally, appellant argues the trial court improperly considered evidence of a
prior investigation during his sentencing hearing. It is well settled, however, that a trial
court may consider a defendant's historical behavior during sentencing.
{¶ 59} "A sentencing court has wide discretion in considering factors necessary to
craft a sentence[.]" State v. Keslar, 8th Dist. Cuyahoga No. 107088, 2019-Ohio-2322, ¶
12. Even uncharged conduct can be considered by the court during sentencing so long
as it is not the "sole basis" for the sentence. See, e.g., State v. Tidmore, 8th Dist.
Cuyahoga No. 107369, 2019-Ohio-1529, ¶ 25-27; State v. Steele, 8th Dist. Cuyahoga
No. 105085, 2017-Ohio-7605, ¶ 10.
{¶ 60} In State v. Lunn, 5th Dist. Muskingum No. CT2020-0031, 2021-Ohio-302at ¶ 20, we recently noted:
A sentencing court may consider charges that have been dismissed
or reduced pursuant to a plea agreement. State v. Parsons, 2013-
Ohio-1281, 2013 WL 1289523, ¶ 18, citing State v. Starkey, 7th Dist.
No. 06MA110, 2007-Ohio-6702, 2007 WL 4374457, ¶ 2; State v.
Cooey, 46 Ohio St.3d 20, 35, 544 N.E.2d 895 (1989). [ * * * ].
Furthermore, the trial court may consider uncharged crimes, as well
as charges that are dismissed in a plea agreement, as factors at
sentencing. State v. Starkey, 7th Dist. Mahoning No. 06 MA 110,
2007-Ohio-6702, ¶ 2.
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{¶ 61} Here, the trial court was permitted to consider the previous investigation
involving appellant and further, did not sentence appellant based solely upon the
uncharged crimes. The trial court went to great pains to outline its findings in support of
its decision including the psychological damage to the victim and fact that appellant put
himself in a role babysitter/caregiver in order to obtain private time with the child even
after there were problems with payment and his girlfriend no longer wished to babysit
L.G.'s children due to overwhelming circumstances in her own life. T.S. 39-49.
{¶ 62} Based on the record before this court, we find the trial court's findings in
support of its imposition of life without the possibility of parole are supported by the record
and further that the trial court did not err in considering appellant's nearly identical but
uncharged offense.
{¶ 63} The final assignment of error is overruled.
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{¶ 64} The judgment of conviction and sentence of the Stark County Court of
Common Pleas is affirmed.
By Wise, Earle, P.J.
Hoffman, J. and
Baldwin, J. concur.
EEW/rw