State v. Flood

[Cite as State v. Flood, 2019-Ohio-2524.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 18AP-206
and
v. : No. 18AP-738
(C.P.C. No. 15CR-1590)
Kurt A. Flood, :
(REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on June 25, 2019
On brief: Ron O'Brien, Prosecuting Attorney, and Sheryl L.
Prichard, for appellee. Argued: Sheryl L. Prichard.
On brief: Todd W. Barstow, for appellant. Argued:
Todd W. Barstow.
APPEALS from the Franklin County Court of Common Pleas
LUPER SCHUSTER, J.
{¶ 1} Defendant-appellant, Kurt A. Flood, appeals from a judgment entry of the
Franklin County Court of Common Pleas finding him guilty, pursuant to jury verdict, of
murder, tampering with evidence, and gross abuse of a corpse. He additionally appeals
from an amended judgment entry of the Franklin County Court of Common Pleas
sentencing him to an aggregate sentence of 19 years to life in prison. For the following
reasons, we affirm in part and reverse in part.
I. Facts and Procedural History
{¶ 2} By indictment filed March 30, 2015, plaintiff-appellee, State of Ohio, charged
Flood with one count of murder in violation of R.C. 2903.02, an unclassified felony; one
count of felonious assault in violation of R.C. 2903.11, a second-degree felony; one count of
Nos. 18AP-206 and 18AP-738 2
endangering children in violation of R.C. 2919.22, a second-degree felony; one count of
tampering with evidence in violation of R.C. 2921.12, a third-degree felony; and one count
of gross abuse of a corpse in violation of R.C. 2927.01, a fifth-degree felony. The charges
related to the death of C.B. Flood entered a plea of not guilty.
{¶ 3} At a jury trial beginning February 6, 2018, Shane Howard, an officer with the
Columbus Division of Police, testified that on December 29, 2014 he responded to a police
dispatch to a report of a missing child at the Logan's Steakhouse near Easton Town Centre.
Officer Howard testified that upon arriving at Logan's Steakhouse, he encountered
Dainesha Stevens who informed him that she could not locate her six-year-old daughter,
Ch.B. Stevens told Officer Howard that she had been staying with a friend, Flood, and that
she believed her daughter was with one of Flood's friends. After Stevens provided police
officers with a phone number of the friend, the officers were able to use a police database
to determine an address associated with the phone number. Officers went to the address,
located Ch.B., and placed her in the custody of Franklin County Children's Services.
{¶ 4} Before police located Ch.B., Stevens also provided the officers with Flood's
telephone number and the telephone number of Ch.B.'s father, who lived in Frederick,
Maryland. When police called Ch.B.'s father, he informed them that he had contacted the
Frederick Police Department about his two missing children. After the officers verified the
father's report with the Frederick Police Department, the officers confronted Stevens with
the existence of a second child, a 14-month-old baby named C.B. Stevens told the officers
that she and Flood had no heat or electricity so she had dropped C.B. on the doorstep of a
random house. Though she initially maintained her story about leaving C.B. on a random
doorstep, Stevens changed her story a few days later, executing a defendant's agreement
pursuant to which she testified on behalf of the state at Flood's trial.
{¶ 5} Stevens testified that Flood urged her to come to Columbus from Maryland
to escape an abusive relationship with Ch.B. and C.B.'s father. She arrived in Columbus
around December 15, 2014 and moved in with Flood. Stevens testified that Flood became
increasingly frustrated with having young children in the house, stating that Flood believed
C.B. was possessed by a demon and often urged Stevens to discipline him. Stevens admitted
to disciplining C.B., but she testified she only "popped him" on the buttocks with her hand
Nos. 18AP-206 and 18AP-738 3
and never left any marks on him. (Tr. Vol. 2 at 276.) However, Stevens said she witnessed
Flood hit C.B. with his hands, a belt, and a stick.
{¶ 6} According to Stevens' testimony, sometime around December 24, 2014,
Flood convinced her to send Ch.B. to his friend's house. That evening, Stevens said Flood
severely beat C.B. on his stomach and buttocks before C.B. went to bed. The next day,
Stevens said C.B. was sluggish and would not breastfeed. Stevens said she noticed his feet
had turned purple. The following day, December 26, 2014, Flood found C.B. stiff and cold
in his bed. Stevens testified that she and Flood attempted CPR and tried to place him in a
cold bathtub to revive him, but they realized he had died.
{¶ 7} Stevens testified she wanted C.B. to be buried, so she and Flood initially
placed C.B.'s body in a small box but the box was not big enough. Next, Stevens said she
and Flood placed C.B.'s body in a plastic grocery bag and then inside a backpack, and
Stevens and Flood then walked around with the backpack trying to decide where to dispose
of the body. They attempted to bury the backpack but the ground was frozen. Ultimately,
Stevens said she and Flood decided to throw C.B.'s body into Big Walnut Creek which was
near Flood's home. Stevens said they waited until it was dark and then rode bicycles, with
the backpack in tow, to a wooded area near the creek. At that point, Stevens said Flood
disappeared into the woods with the backpack and returned a few minutes later without it.
Stevens said that Flood told her that he had thrown the backpack into the water.
{¶ 8} After disposing of C.B.'s body, Stevens said that C.B. and Ch.B.'s father
continued to call her demanding to speak to his children. Due to his frequent phone calls,
Stevens said she and Flood developed the random porch story as an explanation for C.B.'s
absence. Stevens did ultimately admit to assaulting C.B.
{¶ 9} On December 31, 2014, the Columbus Police dive team located the backpack
in Big Walnut Creek containing C.B.'s frozen body. The Franklin County Coroner's Officer
determined C.B.'s cause of death was "violence of undetermined origin," and that homicide
was the manner of death. (Tr. Vol. 1 at 244.)
{¶ 10} Michae Evans, a friend of Flood's, testified that Flood came to her home with
Stevens after C.B. died. Evans testified that Flood told her he had buried a body, and that
Flood confessed to her that he had hit a child, put him to bed, and found him dead the next
morning. At first, Evans said she did not take Flood seriously because he was talking about
Nos. 18AP-206 and 18AP-738 4
the children being possessed by demons. However, when she saw on the news the next
morning a story about a missing baby boy, she feared Flood was being serious and called
the police.
{¶ 11} Flood testified in his own defense and denied ever assaulting C.B. or Ch.B.
Additionally, he denied ever believing that either child was possessed by demons. He did
admit to disposing of C.B.'s body in Big Walnut Creek, but he maintained that Stevens was
the one who beat C.B. and that disposing of the body was Stevens' idea.
{¶ 12} At the conclusion of the trial, the jury returned guilty verdicts on all five
counts. The matter proceeded to a sentencing hearing on February 22, 2018, during which
the trial court stated Flood's convictions of felonious assault and endangering children
would merge with his conviction of murder. However, the trial court declined to merge
Flood's convictions of tampering with evidence and gross abuse of a corpse, over Flood's
objections. The trial court then announced that it would sentence Flood to 15 years to life
on the murder conviction, 3 years on the tampering with evidence conviction, and 1 year on
the gross abuse of a corpse conviction, ordering the sentences to run consecutively for an
aggregate prison sentence of 19 years to life. However, when the trial court journalized
Flood's convictions and sentence in a February 23, 2018 judgment entry, the entry stated
Flood's sentences were to be served concurrent with each other for an aggregate sentence
of 15 years to life. Flood timely appealed from the February 23, 2018 judgment entry.
{¶ 13} While his appeal was pending from the February 23, 2018 judgment entry,
the trial court issued an amended judgment entry on September 20, 2018. The amended
judgment entry added an additional paragraph regarding the requirements of R.C.
2929.14(C)(4) related to consecutive sentences and stated, as the court did at the
sentencing hearing, that Flood's sentences are to be served consecutive to each other for an
aggregate sentence of 19 years to life. Flood then timely appealed from the amended
judgment entry. This court consolidated the matters for purposes of appeal.
II. Assignments of Error
{¶ 14} Between his two appeals, Flood assigns the following three errors for our
review:
[1.] The trial court erred and deprived the appellant of due
process of law as guaranteed by the Fourteenth Amendment to
Nos. 18AP-206 and 18AP-738 5
the United States Constitution and Article One Section 10 of the
Ohio Constitution by finding him guilty of murder; felonious
assault; endangering children; tampering with evidence; and
gross abuse of a corpse as those verdicts were not supported by
sufficient evidence and were also against the manifest weight
of the evidence.
[2.] The trial court erred as a matter of law by not merging the
offenses of tampering with evidence and gross abuse of a corpse
for purposes of sentencing.
[3.] The trial court erred to the prejudice of appellant by
improperly sentencing him to consecutive terms of
incarceration in contravention of Ohio's sentencing statutes.
III. First Assignment of Error – Sufficiency and Manifest Weight of the
Evidence
{¶ 15} In his first assignment of error, Flood argues his convictions are not
supported by sufficient evidence and are against the manifest weight of the evidence.
Though Flood captions his assignment of error as a challenge to the sufficiency and
manifest weight of the evidence related to all of his convictions, the body of his argument
contests only his conviction of murder and, consistent with his admissions at trial, does not
contest his convictions for tampering with evidence and gross abuse of a corpse. Thus, we
will review whether Flood's conviction of murder is supported by sufficient evidence and
the manifest weight of the evidence.
A. Sufficiency of the Evidence
{¶ 16} Whether there is legally sufficient evidence to sustain a verdict is a question
of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). Sufficiency is a test of adequacy.
Id. The relevant inquiry for an appellate court is whether the evidence presented, when
viewed in a light most favorable to the prosecution, would allow any rational trier of fact to
find the essential elements of the crime proven beyond a reasonable doubt. State v.
Mahone, 10th Dist. No. 12AP-545, 2014-Ohio-1251, ¶ 38, citing State v. Tenace, 109 Ohio
St.3d 255, 2006-Ohio-2417, ¶ 37. "[I]n a sufficiency of the evidence review, an appellate
court does not engage in a determination of witness credibility; rather it essentially assumes
the state's witnesses testified truthfully and determines if that testimony satisfies each
element of the crime." State v. Bankston, 10th Dist. No. 08AP-668, 2009-Ohio-754, ¶ 4.
Nos. 18AP-206 and 18AP-738 6
{¶ 17} Flood was convicted of felony murder in violation of R.C. 2903.02(B) with
the underlying felony being either felonious assault or endangering children. In order to
convict a defendant of felony murder in violation of R.C. 2903.02(B), the state must prove
the defendant caused the death of another "as a proximate result of the offender's
committing or attempting to commit an offense of violence that is a felony of the first or
second degree and that is not a violation of section 2903.03 or 2903.04 of the Revised
Code." R.C. 2903.02(B). In turn, R.C. 2903.11(A)(1) provides no person shall knowingly
cause serious physical harm to another. Additionally, R.C. 2919.22(B)(1) provides no
person shall recklessly abuse a child resulting in serious physical harm. See State v.
Crockett, 10th Dist. No. 14AP-242, 2015-Ohio-2351, ¶ 26.
{¶ 18} Flood argues there was insufficient evidence to convict him of felony murder
because the state did not establish the exact cause of C.B.'s death. Stated another way,
Flood asserts there is no evidence demonstrating that any conduct sufficient to constitute
the underlying felonies of felonious assault or endangering children was a proximate cause
of C.B.'s death. Specifically, Flood relies on the findings in C.B.'s autopsy that his death was
caused by "violence of an undetermined origin" with homicide as the manner of death,
rather than specifying a specific cause of death. (Tr. Vol. 1 at 244.)
{¶ 19} In explaining the autopsy findings, the coroner testified that because C.B.'s
body had been submerged in water for some time before police located it, he could not say
definitively what caused C.B.'s death. The Supreme Court of Ohio has held that, where a
body is damaged or destroyed before an official investigation into the cause of death, the
coroner's determination that the victim died as the result of "homicidal violence of an
undetermined origin" is a sufficient finding to support a conviction for murder. State v.
Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, ¶ 119 (sufficient evidence to support conviction
for aggravated murder where victim's body was destroyed in a fire but coroner found the
victim died "as the result of 'homicidal violence of an undetermined origin' "), citing State
v. Heinish, 50 Ohio St.3d 231, 234-35 (1990).
{¶ 20} Stevens testified in great detail about witnessing Flood severely beat C.B. on
his stomach and buttocks and that C.B. was bruised, sluggish, and his feet were turning
purple the night before they found him lifeless in his crib. She also said she had witnessed
Flood beat C.B. on previous occasions. Additionally, Evans testified that Flood told her he
Nos. 18AP-206 and 18AP-738 7
"whooped" C.B. the night before finding him "blue" and "cold" in his crib. (Tr. Vol. 2 at
379.) Considering this evidence in a light most favorable to the state, we conclude there
was sufficient evidence to establish that Flood committed both child endangering and
felonious assault against C.B. resulting in serious physical harm, and that such serious
physical harm was the proximate cause of C.B.'s death. Accordingly, there was sufficient
evidence to support Flood's conviction for felony murder.
B. Manifest Weight of the Evidence
{¶ 21} Determinations of credibility and weight of the testimony are primarily for
the trier of fact. State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus.
The jury, or the court in a bench trial, may take note of inconsistencies at trial and resolve
them accordingly, "believ[ing] all, part, or none of a witness's testimony." State v. Raver,
10th Dist. No. 02AP-604, 2003-Ohio-958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67
(1964). Therefore, "[w]hen a court of appeals reverses a judgment of a trial court on the
basis that the verdict is against the weight of the evidence, the appellate court sits as a
'thirteenth juror' and disagrees with the factfinder's resolution of the conflicting testimony."
Thompkins at 387, quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982); see State v. Tate, 140
Ohio St.3d 442, 2014-Ohio-3667, ¶ 20 ("a prerequisite for any reversal on manifest-weight
grounds is conflicting evidence"). However, an appellate court considering a manifest
weight challenge "may not merely substitute its view for that of the trier of fact, but 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. Harris, 10th Dist. No. 13AP-
770, 2014-Ohio-2501, ¶ 22, citing Thompkins at 387. Appellate courts should reverse a
conviction as being against the manifest weight of the evidence only in the most "
'exceptional case in which the evidence weighs heavily against the conviction.' " Thompkins
at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).
{¶ 22} Flood argues his conviction for murder is against the manifest weight of the
evidence because the greater weight of the evidence tended to establish that Stevens, not
Flood, was responsible for C.B.'s death. Essentially, Flood asserts the jury lost its way in
disbelieving his testimony that he was only involved in disposing of C.B.'s body and not in
Nos. 18AP-206 and 18AP-738 8
any beating of or harm to C.B. However, a conviction is not against the manifest weight of
the evidence because the trier of fact believed the state's version of events over the
defendant's version. State v. Gale, 10th Dist. No. 05AP-708, 2006-Ohio-1523, ¶ 19. As we
noted above, the jury remains free to believe "all, part, or none of a witness's testimony."
Raver at ¶ 21. Given that Stevens testified in great detail about witnessing Flood severely
beat C.B. on his stomach and buttocks, causing a change in C.B.'s demeanor and rendering
him listless, sluggish, incapable of eating, and his feet turning purple before putting him to
bed, and given that Evans testified that Flood came to her and admitted to "whooping" C.B.
before disposing of his body, the jury did not clearly lose its way in disbelieving Flood's
testimony. Thus, in light of the evidence discussed above, as well as the record in its
entirety, we do not find the jury clearly lost its way in concluding Flood committed felonious
assault and/or endangering children that proximately caused C.B.'s death.
{¶ 23} Accordingly, Flood's conviction for murder is supported by sufficient
evidence and is not against the manifest weight of the evidence. We overrule Flood's first
assignment of error.
IV. Second Assignment of Error – Merger
{¶ 24} In his second assignment of error, Flood argues the trial court erred when it
failed to merge his convictions for tampering with evidence and gross abuse of a corpse.
{¶ 25} In reviewing a trial court's determination of whether a defendant's offenses
should merge pursuant to the multiple counts statute, an appellate court reviews the trial
court's R.C. 2941.25 determination de novo. State v. S.S., 10th Dist. No. 13AP-1060, 2014-
Ohio-5352, ¶ 28, citing State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, ¶ 1.
" 'Appellate courts apply the law to the facts of individual cases to make a legal
determination as to whether R.C. 2941.25 allows multiple convictions. That facts are
involved in the analysis does not make the issue a question of fact deserving of deference to
a trial court.' " S.S. at ¶ 28, quoting Williams at ¶ 25.
{¶ 26} R.C. 2941.25 provides:
(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the
indictment or information may contain counts for all such
offenses, but the defendant may be convicted of only one.
Nos. 18AP-206 and 18AP-738 9
(B) Where the defendant's conduct constitutes two or more
offenses of dissimilar import, or where his conduct results in
two or more offenses of the same or similar kind committed
separately or with a separate animus as to each, the indictment
or information may contain counts for all such offenses, and
the defendant may be convicted of all of them.
{¶ 27} Flood argues the trial court erred when it failed to merge the offenses of
tampering with evidence and gross abuse of a corpse for purposes of sentencing. "When the
defendant's conduct constitutes a single offense, the defendant may be convicted and
punished only for that offense. When the conduct supports more than one offense,
however, a court must conduct an analysis of allied offenses of similar import to determine
whether the offenses merge or whether the defendant may be convicted of separate
offenses." State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, ¶ 24.
{¶ 28} "To determine whether two offenses are allied offenses that merge into a
single conviction, a court must evaluate three separate factors: the conduct, the animus,
and the import." State v. Harris, 10th Dist. No. 15AP-683, 2016-Ohio-3424, ¶ 42, citing
Ruff at paragraph one of the syllabus. "If any of the following is true, the offenses cannot
merge and the defendant may be convicted and sentenced for multiple offenses: (1) the
offenses are dissimilar in import or significance—in other words, each offense caused
separate, identifiable harm, (2) the offenses were committed separately, and (3) the
offenses were committed with separate animus or motivation." Ruff at ¶ 25. Ultimately, if
the harm resulting from each offense is separate and identifiable, the offenses are of
dissimilar import and do not merge. Harris, 2016-Ohio-3424, at ¶ 42, citing Ruff at ¶ 25.
{¶ 29} In conducting an analysis of whether two offenses are allied offenses of
similar import, the Supreme Court of Ohio directs an appellate court to look beyond the
statutory elements and to consider the defendant's conduct. "A trial court and the
reviewing court on appeal when considering whether there are allied offenses that merge
into a single conviction under R.C. 2941.25(A) must first take into account the conduct of
the defendant. In other words, how were the offenses committed?" Ruff at ¶ 25.
{¶ 30} The offense of tampering with evidence provides "[n]o person, knowing that
an official proceeding or investigation is in progress, or is about to be or likely to be
instituted, shall * * * [a]lter, destroy, conceal, or remove any * * * thing, with purpose to
Nos. 18AP-206 and 18AP-738 10
impair its value or availability as evidence in such proceeding or investigation." R.C.
2921.12(A)(1). The offense of gross abuse of a corpse, on the other hand, provides "[n]o
person, except as authorized by law, shall treat a human corpse in a way that would outrage
reasonable community sensibilities." R.C. 2927.01(B).
{¶ 31} Here, Flood argues the state relied on the same conduct to prove tampering
with evidence and gross abuse of a corpse. He additionally asserts all of his conduct after
C.B. died had the common purposes of disposing of C.B.'s body. However, in considering
how the offenses occurred, the trial court noted at the sentencing hearing that Flood used
separate methodology in committing the various acts that ultimately led up to the secreting
of C.B.'s body. We agree with the trial court.
{¶ 32} After C.B. died, Flood engaged in several distinct acts with the purpose of
concealing the evidence of C.B.'s body from the police. First, he attempted to fit the body
inside a wooden box with the intention of being able to bury the box, but the body would
not fit. Then, he took the separate and distinct act of placing a plastic bag over the body
and placing the body into a backpack. Flood then tried to find a place to bury the body but
was stymied by the ground being frozen, again with the intent of concealing the evidence of
C.B.'s body from any forthcoming investigation. When he could not bury the body, Flood
rode on his bicycle with the backpack containing the body into a wooded area, again with
the intent of concealing the evidence of the body. The state proved the offense of tampering
with evidence from any of these separate and distinct acts. It is immaterial that these
preliminary acts were not the ultimate location in which Flood chose to hide the body before
police found it; the elements of tampering with evidence were satisfied once Flood removed
C.B.'s body from his home in order to preclude its discovery by the police. See State v. West,
9th Dist. No. 22839, 2006-Ohio-2985, ¶ 27 (noting "it is irrelevant that police ultimately
found" the evidence in plain sight, because a jury can "reasonably infer[ ] from the
circumstances that Appellant 'removed' the [evidence] from his possession in the
apartment in order to preclude it from being found in the apartment by the police"); State
v. Cunningham, 3d Dist. No. 13-15-31, 2016-Ohio-2986, ¶ 29-30 (that an offender is
ultimately not successful in concealing the evidence does not mean there was insufficient
evidence to convict the offender of tampering with evidence).
Nos. 18AP-206 and 18AP-738 11
{¶ 33} By contrast, to prove the offense of gross abuse of a corpse, the state relied on
the evidence that Flood threw C.B.'s body into freezing cold body of water. This was an
additional separate and distinct action to constitute gross abuse of a corpse. Flood attempts
to conflate the two convictions because the evidence he tampered with happened to be a
corpse. However, the evidence demonstrated that separate and distinct acts occurred to
constitute the offense of tampering with evidence, and then separate and distinct acts
occurred to constitute the offense of gross abuse of a corpse. Though it may be true that
Flood's act of throwing C.B.'s body in the water would also constitute tampering with
evidence, the state clearly demonstrated at trial that the tampering with evidence charge
related to the distinct acts that occurred prior to Flood's disposing of C.B.'s body in the
water. Stated another way, the offense of tampering with evidence was already complete
before Flood engaged in separate conduct to constitute the offense of gross abuse of a
corpse.
{¶ 34} Thus, because there was separate conduct to constitute the separate offenses
of tampering with evidence and gross abuse of a corpse, the trial court did not err in refusing
to merge the two offenses. See State v. Abdullahi, 10th Dist. No. 18AP-222, 2018-Ohio-
5146, ¶ 43 (where there is separate conduct ascribed to the separate offenses, the offenses
do not merge). We overrule Flood's second assignment of error.
V. Third Assignment of Error – Consecutive Sentences
{¶ 35} In his third and final assignment of error, Flood argues the trial court erred
in imposing consecutive sentences.
{¶ 36} Before imposing consecutive sentences, a court must make certain findings.
R.C. 2929.14(C) provides as follows:
(4) If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the
offender to serve the prison terms consecutively if the court
finds that the 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 to the danger the
offender poses to the public, and if the court also finds any of
the following:
Nos. 18AP-206 and 18AP-738 12
(a) The offender committed one or more of the multiple
offenses while the offender was awaiting trial or sentencing,
was under a sanction imposed pursuant to section 2929.16,
2929.17, or 2929.18 of the Revised Code, or was under post-
release 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 multiple offenses so committed 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.
(c) The offender's history of criminal conduct demonstrates
that consecutive sentences are necessary to protect the public
from future crime by the offender.
{¶ 37} Thus, pursuant to R.C. 2929.14(C)(4), in order to impose consecutive terms
of imprisonment, a trial court is required to make at least three distinct findings: (1) that
consecutive sentences are necessary to protect the public from future crime or to punish
the offender; (2) that consecutive sentences are not disproportionate to the seriousness of
the offender's conduct and to the danger the offender poses to the public; and (3) that one
of the subsections (a), (b), or (c) applies. State v. Price, 10th Dist. No. 13AP-1088, 2014-
Ohio-4696, ¶ 31, citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177.
{¶ 38} A trial court seeking to impose consecutive sentences must make the findings
required by R.C. 2929.14(C)(4) at the sentencing hearing and also incorporate such
findings into its sentencing entry. Bonnell at ¶ 37. However, a trial court need not state
reasons to support its findings, nor is the court "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." Id. "[A] word-for-word recitation of the
language of the statute is not required," but where "the reviewing court can discern that the
trial court engaged in the correct analysis and can determine that the record contains
evidence to support the findings, consecutive sentences should be upheld." Id. at ¶ 29.
{¶ 39} At the February 22, 2018 sentencing hearing, in announcing it would impose
consecutive sentences, the trial court stated:
Count 1 is a life sentence with Parole Authority - - that's
mandated at 15 years before you go to the Parole Authority.
Nos. 18AP-206 and 18AP-738 13
The question becomes the other two counts. Count 4 will be 36
months. Count 5 will be 12 months. I'm going to run all three
counts consecutive now. The finding on that is subject to
2929.14 - - 2929.14(C)(4), and I'm going to go with (B) because
these were a continuous course.
The death had already occurred and this was the disposal of the
body afterwards. I think that's two separate acts and a
continuous course of conduct. He could have opted [to] get the
kid treatment early on after the felonious assault. He could
have opted to call the authorities. But they went into the
disposal of the body.
This is not disproportionate in running them consecutive to
each other.
The nature of the sentence. Logically, one is it's a life sentence
anyway, so this just changes his report date to the Board.
Based upon the continuous course of conduct and the decisions
made throughout the process, it would not be disproportionate
to go with the 19 years to the Board. Okay?
They are two separate - - well, there's three separate acts in
doing it. Whether - - the argument can be made about the
tampering versus disposal of the body.
You know, there were several acts of tampering that went on
throughout this hearing. In hearing the testimony and talking
to the jurors, there were several things that had got their
attention, whether it's the way it was disposed of, in the first
attempt to put it into a box versus putting the child in - - the
noncovering of the eyes. I don't think I'll ever forget seeing
those eyes throughout the exhibits.
So I think it mandates consecutive sentences. So it will be 36
months, consecutive to 12 months, consecutive to 15 to life, for
19 to life. Okay?
(Sentencing Tr. at 9-10.)
{¶ 40} Flood argues the trial court did not make the requisite finding that
consecutive sentences are necessary to protect the public from future crime or to punish
the offender. Upon review of the transcript of the sentencing hearing, we agree. Though
Nos. 18AP-206 and 18AP-738 14
we conclude the trial court made findings sufficient to constitute the second and third
prongs of the Bonnell test outlined above, the trial court did not make any findings that we
could construe as constituting the first prong of the Bonnell test. The trial court simply
made no mention of protecting the public from future crime by Flood or using consecutive
sentences in order to punish Flood, nor did it make comments from which we could infer it
had engaged in the pertinent analysis to find that consecutive sentences were necessary
either to adequately protect the public or to punish Flood. The trial court focused on the
proportionality analysis without engaging in the protection/punishment analysis.
{¶ 41} Thus, because the trial court failed to make all the findings required to impose
consecutive sentences pursuant to R.C. 2929.14(C), the imposition of consecutive sentences
in this case is contrary to law. Bonnell at ¶ 37. The appropriate remedy is to reverse in part
and remand the matter for resentencing. State v. Barber, 10th Dist. No. 14AP-557, 2015-
Ohio-2653, ¶ 29-31 (failure to make sufficient findings for an appellate court to discern
whether the trial court engaged in the required analysis to impose consecutive sentences
requires reversal and resentencing). We sustain Flood's third and final assignment of error.
VI. Disposition
{¶ 42} Based on the foregoing reasons, Flood's convictions are supported by
sufficient evidence and are not against the manifest weight of the evidence, and the trial
court did not err in failing to merge his convictions for tampering with evidence and gross
abuse of a corpse. However, the trial court's imposition of consecutive sentences is contrary
to law. Having overruled Flood's first and second assignments of error and having
sustained Flood's third assignment of error, we affirm in part and reverse in part the
judgment of the Franklin County Court of Common Pleas and we remand the matter for
resentencing.
Judgment affirmed in part and reversed in part;
cause remanded with instructions.
BRUNNER and BEATTY BLUNT, JJ., concur.