State v. Lodwick

[Cite as State v. Lodwick, 2018-Ohio-3710.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
STATE OF OHIO, :
: Case No. 17CA3812
Plaintiff-Appellee, :
:
vs. : DECISION AND JUDGMENT
: ENTRY
CHRISTOPHER R. LODWICK, :
:
Defendant-Appellant. : Released: 09/14/18
_____________________________________________________________
APPEARANCES:
Matthew F. Loesch, Portsmouth, Ohio, for Appellant.
Shane A. Tieman, Scioto County Prosecuting Attorney, Portsmouth, Ohio,
for Appellee.
_____________________________________________________________
McFarland, J.
{¶1} This is an appeal from a Scioto County Court of Common Pleas
judgment entry sentencing Appellant, Christopher Lodwick, to maximum
and consecutive prison terms totaling eighteen years. He was found guilty
by a jury of one count of burglary, a second-degree felony in violation of
R.C. 2911.12(A)(2) and (D), and was determined by the trial court to be a
repeat violent offender pursuant to R.C. 2941.149(A). On appeal, Appellant
contends that 1) his conviction for second-degree felony burglary was
against the manifest weight and sufficiency of the evidence and, as such, his
Scioto App. No. 17CA3812 2
repeat violent offender specification fails as well; and 2) the trial court
abused its discretion in sentencing him to the maximum time allowed by law
in the instant case.
{¶2} Because we have concluded Appellant's argument simply
challenges the sufficiency of the evidence and not the manifest weight of the
evidence, and because Appellant's conviction for second-degree felony
burglary was supported by sufficient evidence, we find no merit to the
arguments raised in his first assignment of error. Thus, it is overruled.
Further, because we have concluded the maximum sentence imposed by the
trial court for Appellant's second-degree felony burglary conviction was
supported by the record and was not contrary to law, we overrule Appellant's
second assignment of error, in part. We likewise affirm the trial court's
determination that Appellant was a repeat violent offender. However,
because we have concluded the record fails to show any evidence that
Appellant caused, threatened or attempted to cause serious physical harm to
a person during the incident forming the basis for the burglary charge, the
trial court's imposition of a ten-year maximum prison term, which was
ordered to be served consecutively to the prison term imposed on the
burglary conviction, was contrary to law. Thus, we find some merit to the
second assignment of error raised by Appellant and it is sustained, in part.
Scioto App. No. 17CA3812 3
{¶3} Based upon the foregoing, Appellant's conviction for second-
degree felony burglary, as well as the eight-year maximum sentence
imposed for that conviction are affirmed. However, because the ten-year
maximum sentence imposed in connection with repeat violent offender
determination is contrary to law, it must be reversed and vacated.
Accordingly, the decision of the trial court is affirmed in part, reversed in
part, and vacated in part.
FACTS
{¶4} Appellant, Christopher Lodwick, was indicted in the Scioto
County Court of Common Pleas on May 12, 2017, for one count of burglary,
a second-degree felony in violation of R.C. 2911.12(A)(1) and (D). The
indictment also included a repeat violent offender specification pursuant to
R.C. 2941.149. A superseding indictment was filed on September 5, 2017,
amending the burglary count to charge a violation of R.C. 2911.12 (A)(2)
and (D) rather than (A)(1) and (D). The charges in the indictment stemmed
from an incident occurring on May 1, 2017, in which the home of Douglas
Hood and Nikki Harris, located in Sciotoville, Ohio, was burglarized at
approximately 9:30 in the morning on a week day.
{¶5} The matter proceeded to a jury trial on September 18, 2017.
One of the victims, homeowner Douglas Hood, testified for the State. Mr.
Scioto App. No. 17CA3812 4
Hood testified that he and his girlfriend Nikki Harris lived at the residence at
issue and used it as their primary residence. He testified that although he
was at work on the day in question, and that he usually is gone during
weekdays from 7:30 a.m. to 3:00 p.m. attending his job as a teacher's aide,
he sometimes comes home for lunch at 10:30 or 11:00 a.m. He also testified
that he is free to come home if he needs to during the day, to get items he
may have forgotten, which he does on occasion. He further testified Ms.
Harris does not work and is usually home during the day, but that on the day
in question she had left the house to attend a doctor's appointment not far
from home, and had also stopped on her way home to pick up her new
glasses. On cross examination, Mr. Hood testified he owns two cars, that
they are usually parked in the driveway, and that neither car was present in
the driveway on the day of the burglary.
{¶6} Mr. Hood further testified that he had just completed a call with
Ms. Harris, where she advised him she was on her way home from the
doctor but was stopping to pick up her glasses, when he received a
notification on his mobile phone alerting him that his security cameras at
home had detected movement inside his home. Upon reviewing the cameras
he identified Appellant, who was his neighbor, as the person inside his
home. Upon arriving at his house, Mr. Hood found that his front door had
Scioto App. No. 17CA3812 5
been kicked in and multiple Crown Royal bags that had been filled with
coins were missing. Those bags and coins were ultimately recovered by law
enforcement in Appellant's residence.
{¶7} The jury found Appellant guilty of second-degree felony
burglary, as charged in the indictment, and then the trial court, after
receiving additional testimony and evidence regarding Appellant's criminal
history, determined Appellant was a repeat violent offender. The trial court
thereafter sentenced Appellant to an eight-year maximum prison term on the
burglary conviction, sentenced him to a ten-year maximum prison term on
the repeat violent offender specification, and ordered the sentences to be
served consecutively for an aggregate prison sentence of eighteen years.
Appellant now appeals his conviction and sentences, setting forth two
assignments of error for our review.
ASSIGNMENTS OF ERROR
“I. APPELLANT'S CONVICTION FOR FELONY 2 BURGLARY
WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE
AND SUFFICIENCY OF THE EVIDENCE AND AS SUCH
APPELLANT'S REPEAT VIOLENT OFFENDER SPECIFICATION
WOULD FAIL AS WELL.
II. THE TRIAL COURT ABUSED ITS DISCRETION IN
SENTENCING APPELLANT TO THE MAXIMUM TIME
ALLOWED BY LAW IN THE INSTANT CASE.”
Scioto App. No. 17CA3812 6
ASSIGNMENT OF ERROR I
{¶8} In his first assignment of error, Appellant contends that his
conviction for second-degree felony burglary was against the manifest
weight of the evidence and was not supported by sufficient evidence. He
further contends that because the State failed to sufficiently prove he
committed second-degree felony burglary, as opposed to third-degree felony
burglary, the repeat violent offender specification fails as well. The State
contends that it presented evidence sufficient for the jury to find Appellant
guilty of second-degree felony burglary and, in light of Appellant's criminal
history which includes three additional second-degree felony burglary
convictions in the preceding twenty years, the repeat violent offender
specification was applicable and appropriate.
{¶9} “When a court reviews a record for sufficiency, ‘[t]he 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.’ ” State v.
Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 146; quoting
State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the
syllabus (1991); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979).
“The court must defer to the trier of fact on questions of credibility and the
Scioto App. No. 17CA3812 7
weight assigned to the evidence.” State v. Dillard, 4th Dist. Meigs No.
13CA9, 2014-Ohio-4974, ¶ 27; citing State v. Kirkland, 140 Ohio St.3d 73,
2014-Ohio-1966, 15 N.E.3d 818, ¶ 132.
{¶10} In determining whether a criminal conviction is against the
manifest weight of the evidence, an 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. State v.
Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997); State v. Hunter,
131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 119. Further,
“[w]hen an appellate court concludes that the weight of the evidence
supports a defendant's conviction, this conclusion necessarily also includes a
finding that sufficient evidence supports the conviction.” State v. Adkins, 4th
Dist. Lawrence No. 13CA17, 2014-Ohio-3389, ¶ 27.
{¶11} Appellant was convicted of burglary, a second-degree felony in
violation of R.C. 2911.12(A)(2) and (D). R.C. 2911.12 provides, in
pertinent part, as follows:
"(A) No person, by force, stealth, or deception, shall do any of
the following:
***
Scioto App. No. 17CA3812 8
(2) Trespass in an occupied structure or in a separately secured
or separately occupied portion of an occupied structure that is a
permanent or temporary habitation of any person when any
person other than an accomplice of the offender is present or
likely to be present, with purpose to commit in the habitation
any criminal offense;
***
(D) Whoever violates division (A) of this section is guilty of
burglary. A violation of division (A)(1) or (2) of this section is
a felony of the second degree. A violation of division (A)(3) of
this section is a felony of the third degree." (Emphasis added).
{¶12} A repeat violent offender specification was also contained in
the indictment filed against Appellant and after being found guilty of the
second-degree felony burglary charge by the jury, the trial court determined
that Appellant was a repeat violent offender. The relevant version of R.C.
2929.01(CC)(1)(a) defines a "repeat violent offender" as follows:
"(CC) 'Repeat violent offender' means a person about whom
both of the following apply:
(1) The person is being sentenced for committing or for
complicity in committing any of the following:
(a) Aggravated murder, murder, any felony of the first or
second degree that is an offense of violence, or an attempt
to commit any of these offenses if the attempt is a felony of
the first or second degree." (Emphasis added).
***
Scioto App. No. 17CA3812 9
(2) The person previously was convicted of or pleaded guilty to
an offense described in division (CC)(1)(a) or (b) of this
section."1
{¶13} Further, R.C. 2941.149, entitled "Specification concerning
repeat violent offenders," provides, in pertinent part, as follows:
"(A) The determination by a court that an offender is a repeat
violent offender is precluded unless the indictment, count in the
indictment, or information charging the offender specifies that
the offender is a repeat violent offender. The specification shall
be stated at the end of the body of the indictment, count, or
information, and shall be stated in substantially the following
form:
'SPECIFICATION (or, SPECIFICATION TO THE FIRST
COUNT). The Grand Jurors (or insert the person's or
prosecuting attorney's name when appropriate) further find and
specify that (set forth that the offender is a repeat violent
offender).' ”
{¶14} Here, the repeat violent offender specification was properly
included in the indictment, as well as the superseding indictment, as required
by R.C. 2941.149. Appellant only argues the repeat violent offender
determination fails to the extent this Court reverses his conviction for
second-degree felony burglary. Further, it appears Appellant conceded
during trial, and now concedes on appeal, that there was sufficient evidence
to convict him of third-degree felony burglary. In fact, Appellant argued for
and received a lesser-included offense instruction based upon 1) the fact that
1
The second-degree burglary charge of which Appellant was convicted is defined as an "offense of
violence" in R.C. 2901.01(A)(9)(a), as were Appellant's three prior burglary convictions.
Scioto App. No. 17CA3812 10
no one was present during the burglary; and 2) his contention that the State
failed to prove that someone was likely to be present, which is a requirement
to establish second-degree felony burglary, as opposed to third-degree
felony burglary.
{¶15} This Court was presented with a similar argument regarding
the "likely to be present" element required to be proven for second-degree
felony burglary in State v. Griffith, 4th Dist. Pickaway No. 17CA4, 2017-
Ohio-8855. Initially we note that in Griffith, we determined that an
argument that the State failed to prove anyone was “present or likely to be
present” at the victims' home at the time of the offense in essence challenges
the sufficiency of the evidence and not the weight of the evidence. Id. at ¶ 4
and ¶ 34. We are faced with the same limited argument here. Thus, our
analysis under Appellant’s first assignment of error is limited to a
determination of 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.
{¶16} In Griffith, the victim (West) and his family left their house at
separate times on the day of the burglary with a plan to camp in an adjacent
county for the weekend. Griffith at ¶ 8. However, on the evening of the first
day of the camping trip, the victim decided to drive back to his house to
Scioto App. No. 17CA3812 11
check on the house and take a shower. Id. at ¶ 9. When he arrived home, the
victim was able to view, through a panel in the front door, Griffith (who was
his next door neighbor) inside the house. Id. This Court upheld Griffith’s
conviction for second-degree felony burglary, finding that the State
sufficiently proved someone was likely to present in the house at the time of
the burglary. Id. at ¶ 38.
{¶17} In reaching our decision, we reasoned as follows:
“ ‘In determining what constitutes sufficient proof that a person
is “likely to be present,” the Ohio Supreme Court held the
[S]tate meets its burden if it presents evidence ‘that an occupied
structure is a permanent dwelling house which is regularly
inhabited, that the occupying family was in and out on the day
in question, and that such house was burglarized when the
family was temporarily absent[.] ” ’ State v. Edwards, 4th Dist.
Jackson No. 06CA5, 2006–Ohio–6288, ¶ 12, quoting State v.
Kilby, 50 Ohio St.2d 21, 361 N.E.2d 1336 (1977), paragraph
one of the syllabus (construing former R.C. 2911.11(A)(3)); see
also State v. Fowler, 4 Ohio St.3d 16, 19, 445 N.E.2d 1119(1983). ‘The Court in Kilby stated that the “likely to be present”
requirement is intended to target “the type and use of the
occupied structure and not literally whether individuals will be
home from work or play at a particular time.” ’ Id., quoting
Kilby at 25–26.”
As a result, we determined in Griffith, based upon the facts before us, as
follows:
“ * * * the jury was free to infer from the evidence that the
West family was likely to be present at their home at the time of
the burglary. The State presented evidence that the occupied
structure was the permanent dwelling house of the West family,
who regularly inhabited it; that the Wests were in and out of the
Scioto App. No. 17CA3812 12
house on the day in question and temporarily absent when their
home was burglarized, with Mr. West returning as the offense
was occurring. There is no evidence that they were regularly
gone from home for an extended period of time or were
routinely absent from the home at the time the burglary
occurred. Accord, Edwards at ¶ 13.”
{¶18} The First District Court of Appeals also recently considered a
case involving the question of whether anyone was “likely to be present” at
the time of a burglary. State v. Braden, --- N.E.3d ---, 2018-Ohio-563. The
Braden court explained as follows in considering the question of whether
someone is likely to present in the context of the commission of a burglary
offense:
“The issue is not whether the burglar subjectively believed that
persons were likely to be there, but whether it was objectively
likely.” State v. Cravens, 1st Dist. Hamilton No. C–980526,
1999 WL 567098, *1 (June 25, 1999). This court has held that
“objectively likely to be present” means the “probability or
improbability of actual occupancy which in fact exists at the
time of the offense, determined by all the facts surrounding the
occupancy.” In re Meatchem, 1st Dist. Hamilton No. C-050291,
2006-Ohio-4128, 2006 WL 2320787, ¶ 16. “That is, there must
be a greater than 50% likelihood that someone will be in the
dwelling at the time of the burglary.” Id. at ¶ 17.
{¶19} The court’s analysis included a detailed list of cases providing
examples of fact patterns leading to either affirmances or reversals of
findings that someone was, or was not, “likely to be present.” For instance,
the Braden court stated as follows:
Scioto App. No. 17CA3812 13
“Ohio courts have decided a number of cases describing the
type of evidence that the state can offer to establish the ‘likely
to be present’ element. See, e.g., State v. Kilby, 50 Ohio St.2d
21, 361 N.E.2d 1336 (1977) (likely to be present element
satisfied where home's occupants were across the street at a
neighbor's house); State v. Weber, 10th Dist. Franklin No.
97APA03–322, 1997 WL 798299 (Dec. 23, 1997) (likely to be
present element satisfied where home owners were away on
vacation, but others had permission to be in the house and
neighbor was watching property while owners were absent);
State v. Beverly, 2d Dist. Clark No. 2005 CA 85, 2007-Ohio-
1028, 2007 WL 706806 (likely to be present element satisfied
where occupants were away from the house for about one and a
half hours during the evening); State v. Young, 8th Dist.
Cuyahoga No. 87613, 2006-Ohio-5723, 2006 WL 3095685(likely to be present element satisfied where evidence showed
that occupants did not work on weekends, and burglary
occurred on a Sunday); State v. Baker, 12th Dist. Butler No.
CA2003-01-016, 2003-Ohio-5986, 2003 WL 22532913 (likely
to be present element satisfied where occupant was a retiree
with no fixed schedule); State v. Palmer, 8th Dist. Cuyahoga
No. 89957, 2008-Ohio-2937, 2008 WL 2424455 (likely to be
present element satisfied where evidence established burglary
occurred close to the time occupants would have left for work).
Critically, where the occupants of a house are almost always
absent as part of their fixed work schedule, they are not likely
to be present during their regular working hours. See, e.g., State
v. Frock, 2d Dist. Clark No. 2004 CA 76, 2006-Ohio-1254,
2006 WL 677715 (likely to be present element not satisfied
where occupant regularly came home from work to walk her
dog around 2 p.m., and burglary occurred between 1:00 p.m.
and 1:30 p.m.); State v. Brown, 1st Dist. Hamilton No. C–
980907, 2000 WL 492054 (Apr. 28, 2000) (likely to be present
element not satisfied where burglary occurred during the
occupant's workday, and no evidence was offered that the
occupant ever came home during his workday); State v.
Lockhart, 115 Ohio App.3d 370, 685 N.E.2d 564 (8th
Dist.1996) (likely to be present element not satisfied where
home's occupant testified that burglary occurred while she was
Scioto App. No. 17CA3812 14
at work, and that she did not return to her house at varying
times).” Braden at ¶ 11-12.
{¶20} Here, the evidence presented by the State demonstrated that the
victims, Douglas Hood and Nikki Harris, lived in a house located at 5531
Wilson Avenue, Sciotoville, Ohio and used that house as their primary
residence. The State presented the testimony of Hood which explained that
he typically works from 7:30 a.m. to 3:00 p.m at CAPE Alternative School,
which is located approximately ten minutes from his home. Mr. Hood
testified that though he is typically at work during those hours, he is free to
leave work at lunch, which he sometimes does between 10:30 and 11:00
a.m. He also testified that he is free to leave work and come home any time
during his work day, if he needs to run an errand or has forgotten something
at home. Importantly, Hood also testified that his girlfriend, Nikki Harris,
does not work and is usually home during the day. He testified that the only
reason she was not present on the day of the burglary was because she had
gone to a doctor’s appointment in Portsmouth, Ohio, which is located only a
short distance from their home, and had stopped on the way home to pick up
her new glasses. Appellant provided no evidence to refute Hood’s
testimony, but was able, upon cross-examination of Hood, to establish that
Hood owned two cars, which were usually parked in the driveway, and that
both cars were gone at the time of the burglary.
Scioto App. No. 17CA3812 15
{¶21} Based upon the above testimony offered at trial by the State,
we believe the State sufficiently proved that Hood and Harris used the
residence at issue as their primary dwelling and regularly inhabited it.
Further, the evidence presented by the State demonstrated that Nikki Harris
was usually home at the time of the burglary, but that she was in and out on
the day in question and was temporarily absent at the time Appellant
committed the burglary. There is no evidence indicating Harris was gone
from home for an extended period of time or was routinely absent from the
home at the time the burglary occurred. Thus, we conclude the jury’s
determination that someone was likely to be present in the residence at the
time of the burglary was supported by sufficient evidence.
{¶22} In reaching our decision, we reject Appellant’s argument
suggesting that because there were no vehicles in the driveway, it was
reasonable to conclude the house was “entirely vacant during the course of
the burglary.” The evidence introduced at trial indicated Appellant was the
next door neighbor of the victims, that the victims had two cars, and that
neither car was in the driveway at the time of the burglary. However, even if
Appellant subjectively thought no one would be present in the home, as set
forth above, “[t]he issue is not whether the burglar subjectively believed that
persons were likely to be there, but whether it was objectively likely.” State
Scioto App. No. 17CA3812 16
v. Braden, supra, at ¶ 17; quoting State v. Cravens, supra, at *1.2 Based
upon the testimony of Hood, it was objectively likely that Nikki Harris was
likely to be present in the residence at the time of the burglary, as she used
the residence as her primary dwelling, she did not work, she had not been
gone from the residence for an extended period of time, she was not
routinely absent from the home at the time of the burglary, and she was in
and out and only temporarily absent at the time the burglary occurred. As
such, in our view, the State met it burden. Thus, we find no merit in this
argument raised under Appellant’s first assignment of error and therefore
affirm Appellant’s conviction for second-degree felony burglary.
{¶23} Appellant further argues that the trial court erred in
determining he was a repeat violent offender. His argument is solely based
upon the premise that his conviction for second-degree felony burglary
should be reversed. Consequently, because we have affirmed, rather than
reversed, that conviction, Appellant’s arguments regarding the trial court’s
repeat violent offender determination are without merit. However, as will be
discussed more fully below under Appellant's second assignment of error,
although we find the trial court properly classified Appellant as a repeat
2
Here, there was no evidence introduced at trial indicating what Appellant subjectively thought one way or
another regarding whether anyone was present or likely to be present at the time of the burglary. Appellant
did not testify or present any other evidence during trial. Further, only the statements of defense counsel
serve as the basis for the suggestion that because no cars were in the driveway, Appellant would have
thought the home was vacant. Statements by counsel, of course, are not evidence.
Scioto App. No. 17CA3812 17
violent offender, the sentence imposed in connection with that classification
is contrary to law and must be reversed and vacated.
ASSIGNMENT OF ERROR II
{¶24} In his second assignment of error, Appellant contends that the
trial court abused its discretion in sentencing him to the maximum time
allowed by law. As set forth above, Appellant was sentenced to an eight-
year maximum prison term for his second-degree felony burglary conviction
and he was sentenced to a ten-year maximum prison term on the repeat
violent offender specification. The trial court further ordered that these
sentences be served consecutively resulting in an aggregate prison sentence
of eighteen years. The State contends the trial court did not abuse its
discretion in sentencing Appellant, and further contends that Appellant’s
sentence was not contrary to law.
{¶25} We must initially note that we reject Appellant's argument that
we review a trial court's imposition of felony sentences using the abuse-of-
discretion standard of review. In State v. Marcum, 146 Ohio St.3d 516,
2016-Ohio-1002, 59 N.E.3d 1231, ¶ 10, the court held “that appellate courts
may not apply the abuse-of-discretion standard in sentencing-term
challenges.” Accord State v. Campbell, 4th Dist. Adams No. 15CA1012,
2016-Ohio-415, ¶ 11. Additionally, R.C. 2953.08(G)(2) explicitly states that
Scioto App. No. 17CA3812 18
an “appellate court's standard for review [when considering sentencing-term
challenges] is not whether the sentencing court abused its discretion.”
Instead, the statute states that reviewing courts may increase, reduce,
modify, or vacate and remand a challenged felony sentence if the court
clearly and convincingly finds either that (1) “the record does not support
the sentencing court's findings” under certain statutory provisions, or (2)
“the sentence is otherwise contrary to law.” Accord State v. Pulliam, 4th
Dist. Scioto No. 16CA3759, 2017-Ohio-127, ¶ 6; State v. Perry, 4th Dist.
Pike No. 16CA863, 2017-Ohio-69, ¶ 13. Thus, Appellant's assertion that we
apply the abuse-of-discretion standard when reviewing trial court felony
sentencing decisions is incorrect.
{¶26} Appellant argues the trial court was required to state its reasons
for imposing maximum and consecutive sentences, and that it appears the
trial court’s sole reason for sentencing Appellant to maximum sentences was
due to his criminal history, which Appellant contends is insufficient to
impose maximum sentences. Appellant also references the fact that the trial
judge commented on the fact that he himself had been a victim of theft
offenses, and argues such comments can be construed as evidence the
sentence imposed by the trial court was vindictive. Appellant also cites the
fact that there was no physical harm or threat of harm in this case, and states
Scioto App. No. 17CA3812 19
that he simply committed a crime of opportunity to fuel his drug habit,
noting his long history of substance abuse. Appellant concedes that the trial
court recited “boilerplate sentencing language prior to imposing the
maximum[,]” but argues “it does not appear that the trial court truly took the
sentencing factors into consideration.”
{¶27} We initially consider the eight-year maximum prison term
imposed on the burglary conviction. As set forth above, we affirmed
Appellant’s conviction for second-degree felony burglary, which included,
as an element of the offense, that someone was either present, or likely to be
present, when the burglary occurred. The fact that no one was present when
the burglary occurred in this case was merely fortuitous, as Nikki Harris,
though usually at home, happened to be away at a doctor’s appointment at
the time the burglary was committed. In our view, such fortune should not
inure to the benefit of Appellant or result in a more lenient sentence.
Further, the record before us indicates that aside from the burglary at issue
herein, Appellant had been previously convicted of three counts of second-
degree felony burglary, one count of third-degree felony attempted burglary,
and one count of fifth-degree felony attempted burglary. As such, Appellant
has a lengthy criminal history and a propensity for committing burglaries.
Scioto App. No. 17CA3812 20
{¶28} Here, it appears that the sentence Appellant received on the
second-degree felony burglary conviction was within the statutory range for
the offense, and thus it cannot be said that the length of the sentence is
contrary to law. Further, and importantly, maximum sentences do not
require specific findings. State v. McClain, 4th Dist. Pickaway No. 13CA17,
2014–Ohio–4192, ¶ 36; State v. Lister, 4th Dist. Pickaway No. 13CA15,
2014–Ohio–1405, ¶ 10; citing State v. White, 2013–Ohio–4225, 997 N.E.2d
629, ¶ 7 (1st Dist.). Although trial courts have full discretion to impose any
term of imprisonment within the statutory range, they must consider the
sentencing purposes in R.C. 2929.11 and the guidelines contained in R.C.
2929.12. Lister, supra, at ¶ 14. H.B. 86 amended R.C. 2929.11 and states:
“(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 crime by the offender and others and to
punish 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.”
R.C. 2929.12 also provides a non-exhaustive list of factors a trial court must
consider when determining the seriousness of the offense and the likelihood
that the offender will commit future offenses. Lister, supra, at ¶ 15.
Scioto App. No. 17CA3812 21
{¶29} While the trial court is required to consider the R.C. 2929.12
factors, “the court is not required 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 (of R.C. 2929.12.)’ ” State v.
Latimer, 11th Dist. Portage No. 2011–P–0089, 2012–Ohio–3745, ¶ 18;
quoting State v. Webb, 11th Dist. Lake No. 2003–L–078, 2004–Ohio–4198,
¶ 10; quoting State v. Arnett, 88 Ohio St.3d 208, 215, 724 N.E.2d 793(2000). The Supreme Court of Ohio in State v. Adams, 37 Ohio St.3d 295,
525 N.E.2d 1361 (1988), has held: “[a] silent record raises the presumption
that a trial court considered the factors contained in R.C. 2929.12.” Latimer,
supra; quoting Adams at paragraph three of the syllabus. Further, “[a]
maximum sentence is not contrary to law when it is within the statutory
range and the trial court considered the statutory principles and purposes of
sentencing as well as the statutory seriousness and recidivism factors.” State
v. Talley, 74 N.E.3d 868, 2016–Ohio–8010, ¶ 15 (2nd Dist.).
{¶30} A review of the record reveals that although the trial court did
not specifically state its reasons for imposing a maximum sentence on the
burglary conviction, it expressly stated its consideration of the required
principles and purposes of felony sentences. Further, in addition to
enumerating the applicable sentencing statutes and factors, the trial court
Scioto App. No. 17CA3812 22
engaged in an on-the-record colloquy with Appellant regarding his extensive
criminal history, the fact that the court had given him multiple chances and
that Appellant had been offered multiple treatment options in the past,
including while he was previously in prison, but that he continued to re-
offend. Based on the foregoing, it is clear that the trial court appropriately
considered the principles and purposes of felony sentences, as set forth in
R.C. 2929.11, including the seriousness and recidivism factors contained in
R.C. 2929.12, as well as the record before it, which included Appellant’s
extensive criminal history and recidivism. Thus, the trial court's imposition
of this maximum sentence is supported by the record, and is not clearly and
convincingly contrary to law.
{¶31} We must next consider the ten-year maximum prison term
imposed as a result of the repeat violent offender determination made by the
trial court, which was ordered to be served consecutively to the prison term
imposed on the burglary conviction. As set forth above, the indictment
herein contained a repeat violent offender specification pursuant to R.C.
2941.149(A). Without going into more detail than necessary, the
specification alleged Appellant had previously been convicted of three
second-degree felony counts of burglary, one third-degree felony count of
attempted burglary and one fifth-degree felony count of attempted burglary,
Scioto App. No. 17CA3812 23
all occurring between the years 2003 and 2012. Further, after the jury found
Appellant guilty of the current second-degree burglary count contained
herein, the State introduced evidence through Investigator Charles and
introduced as exhibits certified copies of each of the convictions. However,
there was no testimony or other evidence introduced by the State regarding
any serious physical harm to a person which actually occurred or was
attempted or threatened in connection with the current burglary charge or the
prior burglary convictions. Ultimately, the trial court determined Appellant
was a repeat violent offender and sentenced him to a ten-year maximum
prison term.
{¶32} Once again, the relevant version of R.C. 2929.01(CC)(1)(a)
defines a "repeat violent offender" as follows:
"(CC) 'Repeat violent offender' means a person about whom both of
the following apply:
(1) The person is being sentenced for committing or for
complicity in committing any of the following:
(a) Aggravated murder, murder, any felony of the first or
second degree that is an offense of violence, or an attempt
to commit any of these offenses if the attempt is a felony of
the first or second degree." (Emphasis added).
***
Scioto App. No. 17CA3812 24
(2) The person previously was convicted of or pleaded guilty to
an offense described in division (CC)(1)(a) or (b) of this
section."3
{¶33} Further, R.C. 2929.14 governs felony sentencing and prison
terms and provides in section (B)(2)(b)(i-iii), as follows with respect to the
imposition of a prison sentence for a repeat violent offender:
"(b) The court shall impose on an offender the longest prison
term authorized or required for the offense and shall impose on
the offender an additional definite prison term of one, two,
three, four, five, six, seven, eight, nine, or ten years if all of the
following criteria are met:
(i) The offender is convicted of or pleads guilty to a
specification of the type described in section 2941.149 of the
Revised Code that the offender is a repeat violent offender.
(ii) The offender within the preceding twenty years has been
convicted of or pleaded guilty to three or more offenses
described in division (CC)(1) of section 2929.01 of the Revised
Code, including all offenses described in that division of which
the offender is convicted or to which the offender pleads guilty
in the current prosecution and all offenses described in that
division of which the offender previously has been convicted or
to which the offender previously pleaded guilty, whether
prosecuted together or separately.
(iii) The offense or offenses of which the offender currently is
convicted or to which the offender currently pleads guilty is
aggravated murder and the court does not impose a sentence of
death or life imprisonment without parole, murder, terrorism
and the court does not impose a sentence of life imprisonment
3
This version of the statute became effective on August 3, 2006, and the pertinent language was still in
effect at the time of Appellant's sentence and remains in effect today. Prior to August 3, 2006, in order to
be classified as a repeat violent offender, there had to be a finding that the second-degree felony at issue
"involved an attempt to cause serious physical harm to a person or that resulted in serious physical harm to
a person." This is in contrast to the applicable version of the statute which simply required the second-
degree felony at issue, here burglary, be an "offense of violence."
Scioto App. No. 17CA3812 25
without parole, any felony of the first degree that is an offense
of violence and the court does not impose a sentence of life
imprisonment without parole, or any felony of the second
degree that is an offense of violence and the trier of fact finds
that the offense involved an attempt to cause or a threat to
cause serious physical harm to a person or resulted in serious
physical harm to a person." (Emphasis added).4
{¶34} Here, Appellant was convicted of a specification described in
R.C. 2941.149. Further, as noted above, burglary is defined as an "offense
of violence" in R.C. 2901.01(A)(9)(a). Additionally, the record
demonstrates Appellant had been convicted of three second-degree felony
burglary offenses of violence in the preceding twenty years. However, as
noted by Appellant and as discussed above, in the present case there is no
evidence in the record demonstrating the trier of fact found, with respect to
the second-degree felony burglary conviction presently at issue, "that the
offense involved an attempt to cause or a threat to cause serious physical
harm to a person or resulted in serious physical harm to a person" as
required by R.C. 2929.14(B)(2)(b)(iii). Nor would the record before us have
supported such a finding. Here, the statute clearly requires that not only
must the offense at issue be an "offense of violence," but there must also be
a serious physical harm finding by the trier of fact. Again, there was no such
finding made in the present case.
4
The language requiring the "trier of fact" to find that "the offense involved an attempt to cause or a threat
to cause serious physical harm to a person or resulted in serious physical harm to a person" was added to
the statute by 2006-H-95, effective August 3, 2006.
Scioto App. No. 17CA3812 26
{¶35} In State v. Sims, 8th Dist. Cuyahoga No. 84090, 2005-Ohio-
1978, the court determined that Sims could not be classified as a repeat
violent offender where the record failed to show any evidence that he caused
or attempted to cause serious physical harm during, either the incident
forming the basis for the burglary charge or in either of his prior convictions.
Notably, at the time Sims was decided, the version of R.C. 2929.01 that was
in effect at that time included language that the second-degree felony
conviction at issue must involve "an attempt to cause serious physical harm
to a person or that resulted in serious physical harm to a person" in order to
be classified as repeat violent offender."5 Thus, without any evidence of
physical harm in the record, the Sims court found that the trial court erred
not only in imposing an additional penalty upon Sims as a repeat violent
offender, but also in classifying him as a repeat violent offender.
{¶36} As indicated above, however, after Sims was decided the
definition of “repeat violent offender" changed. Here, in order for Appellant
to be classified as a repeat violent offender, it was necessary for the trial
court to find that he was being sentenced for committing a felony of the
"second degree that is an offense of violence * * *[.]" In contrast to Sims,
there was no requirement, under the version of R.C. 2929.01 that was in
5
Former version of R.C. 2929.01(DD) contained the definition of "repeat violent offender," which is now
contained in R.C. 2929.01(CC).
Scioto App. No. 17CA3812 27
effect at time of Appellant's sentencing, that the trial court find Appellant
also caused, attempted or threatened to cause serious physical harm to
person before it could determine he was a "repeat violent offender" within
the meaning of the statute. Thus, it appears the trial court's classification of
Appellant as a repeat violent offender was proper. However, it also appears
that in order to impose an additional penalty in the form of a prison sentence
upon a repeat violent offender, R.C. 2929.14 now requires not only that the
offense at issue be an "offense of violence" but also that there be a finding,
by the trier of fact for the felony conviction, that "the offense involved an
attempt to cause or a threat to cause serious physical harm to a person or
resulted in serious physical harm to a person." R.C. 2929.14(B)(2)(b)(iii).6
{¶37} This case involved the burglary of a house where ultimately no
one was present, with the intent to commit a theft offense therein, which
resulted in the theft of several bags of coins. The elements of burglary do
not include actual, attempted or threatened serious physical harm to a
person. Further, the jury made no special finding of actual, attempted or
threatened serious physical harm to a person here. Thus, the trial court erred
in imposing a prison term in connection with the repeat violent offender
classification. See State v. Davis, 7th Dist. Mahoning No. 08 MA 152, 2009-
6
This requirement was added to the version of R.C. 2929.14 with an effective date of August 3, 2006 and
remains a requirement in the version of the statute in effect at the time of Appellant's sentencing and still
today.
Scioto App. No. 17CA3812 28
Ohio-5079, ¶ 31-36 (reversing enhanced sentencing for a repeat violent
offender specification following a conviction for second-degree robbery
where the jury was not instructed to make a finding as to whether the harm
involved was serious; nor did the jury make such a finding.)
{¶38} Accordingly, Appellant's conviction for second-degree felony
burglary is affirmed as is his eight-year maximum prison sentence for that
conviction. Further, although Appellant was properly classified as a repeat
violent offender under R.C. 2929.01(CC) by the trial court, the sentence
imposed for that classification was contrary to law. This is because the trier
of fact did not find that the offense involved an attempt to cause or a threat
to cause serious physical harm to a person, or resulted in serious physical
harm to a person. Thus, Appellant's repeat violent offender determination is
affirmed but the ten-year maximum prison term imposed as a result is
contrary to law and is, therefore, reversed and vacated.
JUDGMENT AFFIRMED IN
PART, REVERSED IN
PART AND VACATED IN
PART.
Scioto App. No. 17CA3812 29
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED IN PART,
REVERSED IN PART, AND VACATED IN PART. Costs shall be divided
equally between Appellant and Appellee.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Scioto County Common Pleas Court to carry this judgment into
execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Harsha, J. & Abele, J.: Concur in Judgment and Opinion.
For the Court,
BY: ______________________________
Matthew W. McFarland
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.