State v. Lorenzen

[Cite as State v. Lorenzen, 2022-Ohio-2288.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
OTTAWA COUNTY
State of Ohio Court of Appeals No. OT-21-033
Appellee Trial Court No. 21 CR 112
v.
Kiel D. Lorenzen DECISION AND JUDGMENT
Appellant Decided: June 30, 2022
*****
James J. VanEerten, Ottawa County Prosecuting Attorney, and
Thomas A. Matuszak, Assistant Prosecuting Attorney, for appellee.
W. Alex Smith, for appellant.
*****
DUHART, J.
{¶ 1} Appellant, Kiel Lorenzen, appeals from a judgment entered by the Ottawa
County Common Pleas Court, sentencing him on two counts of sexual battery and two
counts of pandering sexually-oriented matter involving a minor or impaired person. For
the reasons that follow, we affirm the judgment of the trial court.
Statement of the Case
{¶ 2} On June 10, 2021, the Ottawa County grand jury returned an indictment
charging appellant with 37 sex offenses, including: 14 counts of unlawful sexual conduct
with a minor, in violation of R.C. 2907.04(A) and (B)(3), each offense being an upper tier
felony of the third degree; eight counts of sexual battery, in violation of R.C.
2907.03(A)(2) and (B), each offense being an upper tier felony of the third degree; one
count of voyeurism, in violation of R.C. 2907.08(C) and (E)(5), a felony of the fifth
degree; one count of rape, in violation of R.C. 2907.02(A)(2) and (B), a felony of the first
degree; six counts of illegal use of a minor in nudity-oriented matter or performance, in
violation of R.C. 2907.323(A)(1) and (B), each offense being a felony of the second
degree; and seven counts of pandering sexually-oriented matter involving a minor or
impaired person, in violation of R.C. 2907.322(A)(1) and (C), each offense being a
felony of the second degree.
{¶ 3} On August 24, 2021, appellant entered pleas of guilty to two counts of
sexual battery and two counts of pandering sexually-oriented matter involving a minor or
impaired person. On October 8, 2021, the trial court held a sentencing hearing and
imposed maximum consecutive prison sentences for all four of the convictions, totaling
26 to 30 years in prison.
2.
Statement of the Facts
{¶ 4} At the plea hearing, held on August 24, 2021, appellant provided the
following factual colloquy for the sexual battery counts, stating: “Your Honor, I
acknowledge on August 1, 2011 through November 31, 2011, and also between the dates
of January 1st, 2012, and April 30, 2012, I acknowledge that I did engage in
inappropriate sexual acts with someone that was a minor and also that I did furnish
alcohol on those occasions.” Appellant provided a similarly succinct factual colloquy for
the pandering counts, stating: “I did knowingly send, on September 1st, 2020 and also
September 1st, 2020, send explicit or sexually-oriented material involving a minor back
to the victim.” The state elucidated: “I would simply note for the record that the pictures
that he had sent to the victim were actually photographs or videos he had taken of the
victim years before in what is known as a sextortion scheme * * *.”
{¶ 5} At the October 10, 2021 sentencing hearing, the trial court received far more
factual detail from the presentence investigation report, the victim, the victim’s father,
and the state of Ohio. As explained by the prosecutor:
In this case, the Defendant ran a sextortion scheme that spanned a
decade beginning with a juvenile that he plied with alcohol to begin the
manipulative process.
It didn’t stop. When she tried to move on, when she told him she
wanted to move on, in fact, after she got married, he continued trying to
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sextort her by threatening to disclose videos and images that he had of her,
not simply to family, but to religious elders, people in her faith, knowing
that she would be ostracized from that family that she knows through the
church of Jehovah’s Witness.
{¶ 6} The trial court considered the purposes and principles of sentencing set forth
in R.C. 2929.11, the seriousness and recidivism factors set forth in R.C. 2929.12, and
R.C. 2929.13. The trial court then imposed maximum prison terms for all four of
appellant’s convictions -- 60 months for each count of sexual battery, and 8-12 years for
each count of pandering -- and ordered that all four prison terms be served consecutively
to one another, for a total term of imprisonment of 26-30 years.
{¶ 7} The court made the specific findings, as required by R.C. 2929.14, for the
imposition of consecutive prison terms, stating as follows:
The Court finds that 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 the danger the offender poses to the public.
The court further finds that at least two or more of the multiple
offenses committed were 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.
4.
I would echo what the State has said in that we do note that there is
not a history of criminal convictions in this case, but I do note that this is
not a single offense. It is not something that happened once or twice. It is
abuse that went on for a long period of time, so the history of criminal
conduct is another factor the Court has considered in consecutive
sentencing.
{¶ 8} The trial court then recorded its findings in its sentencing judgment entry,
journalized on October 8, 2021. It is from this judgment entry that appellant currently
appeals.
Assignments of Error
{¶ 9} Appellant asserts the following assignment of error on appeal:
I. The Trial Court’s maximum and consecutive sentence was clearly
and convincingly not supported by the record.
Analysis
{¶ 10} We review challenges to felony sentences under R.C. 2953.08(G)(2).
Pursuant to R.C. 2953.08(G)(2), an appellate court may increase, reduce, or otherwise
modify a sentence or may vacate the sentence and remand the matter to the sentencing
court for resentencing 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
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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.
{¶ 11} We begin our analysis by considering appellant’s claim that the trial court
erred in imposing consecutive sentences. In State v. Perz, 6th Dist. Wood No. WD-20-
079, 2021-Ohio-3856, this court recognized that R.C. 2929.14(C)(4) is the “exclusive
procedural mechanism under which offenders can appeal consecutive sentences.” Id. at ¶
19, citing State v. Gwynne, 158 Ohio St.3d 279, 2019-Ohio-4761, 141 N.E.3d 169, ¶ 16
(holding that “[b]ecause R.C. 2953.08(G)(2)(a) specifically mentions a sentencing
judge’s findings made under R.C. 2919.14(C)(4) as falling within a court of appeals’
review, the General Assembly plainly intended R.C. 2953.08(G)(2)(a) to be the exclusive
means of appellate review of consecutive sentences”). Thus, “an appellate court’s review
of consecutive findings is limited to challenges of a trial court’s findings under R.C.
2929.14(C)(4).” State v. Adams, 6th Dist. Wood Nos. WD-21-017, WD-21-018, 2021-
Ohio-2862, ¶ 8.
{¶ 12} R.C. 2929.14(C)(4) provides that in order to impose a consecutive
sentence, a trial court must engage in the following three-part analysis:
First, the trial court must find the sentence is necessary to protect the public
from future crime or to punish the offender. Second, the trial court must
find that consecutive sentences are not disproportionate to the seriousness
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of the offender’s conduct and to the danger the offender poses to the public.
Third, the trial court must find that at least one of the following applies: (a)
the offender committed one or more of the multiple offenses while awaiting
trial or sentencing, while under a sanction imposed pursuant to R.C.
2929.16, 2929.17, or 2929.18, or while under postrelease control for a prior
offense; (b) at least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or more of the
offenses 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; or (c) the offender’s
history of criminal conduct demonstrates that consecutive sentences are
necessary to protect the public from future crime by the offender. Id. at
R.C. 2929.14(C)(4)(a)-(c).
State v. Banks, 6th Dist. Lucas No. L-13-1095, 2014-Ohio-1000, ¶ 11. In imposing
consecutive sentences, a trial court need not recite any “magic” or “talismanic” words,
“provided it is ‘clear from the record that the trial court engaged in the appropriate
analysis.’” Id. at ¶ 12, citing State v. Murrin, 8th Dist. Cuyahoga No. 83714, 2004-Ohio-
3962, ¶ 12.
{¶ 13} In the instant case, we find that the trial court engaged in the appropriate
analysis and made the requisite findings in support of consecutive sentences both at the
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dispositional hearing and in its sentencing entry. As detailed above, appellant’s course of
conduct in the instant case involved a sextortion scheme that took place over many years,
beginning with a juvenile victim whom he manipulated with alcohol, and which
continued into the victim’s adulthood, when he threatened her with disclosure of videos
and images that he had of her. In imposing consecutive sentences, the trial court noted
that the abuse in this case was “not something that happened once or twice,” but rather
was “went on for a long period of time.” Upon our review of the record, we find the trial
court’s findings -- that consecutive service is necessary to protect the public from future
crime and to punish the offender, that consecutive sentences are not disproportionate to
the seriousness of the offender’s conduct and the danger the offender poses to the public,
and that at least two of the multiple offenses committed were 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 -- are sufficient
under R.C. 2929.14(C)(4) and are fully supported by the record.
{¶ 14} Next, we review appellant’s claim that the trial court erred in imposing
maximum terms on each individual charge. Specifically, appellant argues that the trial
court, in imposing the maximum sentence on each charge, “paid lip service to the
sentencing factors and guidance,” but “did not actually consider the required factors.”
{¶ 15} In State v. Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-Ohio-425, ¶
15, this court recognized that a sentence is not clearly and convincingly contrary to law
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for purposes of R.C. 2953.08(G)(2)(b) where the trial court has considered the purposes
and principles of sentencing in R.C. 2929.11 and the seriousness and recidivism factors
listed in R.C. 2929.12, properly applied postrelease control, and sentenced the defendant
within the statutorily-permissible range. “[N]either R.C. 2929.11 nor 2929.12 requires a
trial court to make any specific factual findings on the record.” State v. Jones, 163 Ohio
St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 20. In fact, a trial court’s consideration of
the factors set forth in R.C. 2929.11 and R.C. 2929.12 is presumed even on a silent
record. State v. Montez, 6th Dist. Lucas No. L-21-1086, 2022-Ohio-640, ¶ 9, citing State
v. Clinton, 153 Ohio St.3d 422, 2017-Ohio-9423, 108 N.E.3d 1. (Additional citation
omitted.)
{¶ 16} In the instant case, the record demonstrates that appellant’s individual
prison sentences were not clearly and convincingly contrary to law under R.C.
2953.08(G)(2)(b). As the trial court expressly stated in its sentencing judgment entry:
The Court has considered the record, oral statements, all victim impact
statements, the presentence report, the Defendant’s sentencing
memorandum, letters of input received from community members, as well
as the principles and purposes of sentencing under Ohio Revised Code
Section 2929.11. The Court inquired if any victims present wished to
speak, and has considered any statements made as well. The Court further
has balanced the seriousness and recidivism factors under Ohio Revised
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Code 2929.12. [Appellant’s case] does require a mandatory prison term.
The court finds that the more likely recidivism factors do not outweigh the
less likely factors and the more serious factors outweigh the less serious
factors.
Thus, the trial court expressly stated that it considered the principles and purposes of
sentencing under R.C. 2929.11 and the seriousness and recidivism factors listed under
R.C. 2929.12.
{¶ 17} Next, we consider whether the trial court sentenced appellant within the
statutorily permissible range. The applicable statutory range for appellant’s two
convictions for sexual battery was 12, 18, 24, 30, 36, 42, 48, 54, or 60 months. See R.C.
2929.14(A)(3)(a). And the applicable statutory range for appellant’s two convictions for
pandering sexually-oriented matter involving a minor or impaired person was 2-8 years.
See R.C. 2929.14(A)(2)(a). Thus, the trial court’s imposition of the maximum prison
terms for those four offenses was within the permissible statutory ranges.
{¶ 18} Finally, we consider whether the trial court properly applied postrelease
control. The court’s imposition of a mandatory five-year period of postrelease control
was clearly appropriate under R.C. 2967.28(B)(1).
{¶ 19} Accordingly, appellant’s maximum sentences were not clearly and
convincingly contrary to law for purposes of R.C. 2953.08(G)(2)(b). See Tammerine at ¶
15.
10.
{¶ 20} To the extent that appellant’s challenge amounts to a disagreement with the
trial court’s consideration of R.C. 2929.11 and its weighing of the factors set forth in R.C.
2929.12, we dismiss the argument on the grounds that “an appellate court may not
independently weigh the evidence and substitute its judgment for that of the trial court
regarding the appropriate sentence under R.C. 2929.11 and 2929.12, nor may it modify or
vacate a sentence under R.C. 2953.08(G)(2)(b) based on the lack of support in the record
for the trial court’s findings under those statutes.” State v. Montez, 6th Dist. Lucas No.
L-21-1086, 2022-Ohio-640, ¶ 9, citing Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169
N.E.3d 649, at ¶ 39, 41-42.
{¶ 21} For all of the foregoing reasons, we find appellant’s assignment of error not
well-taken. The judgment of the Ottawa County Common Pleas court is affirmed.
Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
11.
State of Ohio
v. Kiel D. Lorenzen
OT-21-033
Christine E. Mayle, J. ____________________________
JUDGE
Gene A. Zmuda, J.
____________________________
Myron C. Duhart, P.J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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