State v. Burks

[Cite as State v. Burks, 2018-Ohio-4777.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 106639
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DARYL BURKS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-16-611300-A
BEFORE: Celebrezze, J., Kilbane, P.J., and Jones, J.
RELEASED AND JOURNALIZED: November 29, 2018
ATTORNEY FOR APPELLANT
Kevin M. Cafferkey
55 Public Square, Suite 2100
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Jennifer A. Driscoll
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:
{¶1} Defendant-appellant, Daryl Burks (“appellant”), brings the instant appeal
challenging his convictions and the trial court’s sentence for extortion, intimidation of a crime
victim, and pandering obscenity. Specifically, appellant argues that the trial court erred by
denying his motion to dismiss based on speedy trial grounds, his convictions are not supported by
sufficient evidence and against the manifest weight of the evidence, the trial court erred by
failing to merge the extortion and intimidation counts for sentencing purposes, and the trial court
erred by imposing consecutive sentences. After a thorough review of the record and law, this
court affirms.
I. Factual and Procedural History
{¶2} The instant matter arose from an October 29, 2016 incident involving appellant, his
codefendant Raynard Rivers, and the victim, C.E., following a birthday party. The party was
hosted by Chermetria Rivers.
{¶3} At some point during the evening, a group of partygoers left the house at which the
party was being held and went to the No Drama Bar and Lounge in Cleveland, Ohio, where they
only stayed for a short period of time. The group returned to Chermetria’s house where they
continued to party.
{¶4} Throughout the course of the evening, the victim became intoxicated. The victim’s
second cousin, Nautica Redfern (hereinafter “Nautica”), opined that the victim consumed more
than ten shots after the group had returned from the bar. Nautica explained that the victim
vomited in the bathroom and fell when she exited the bathroom. Nautica, appellant, and
Raynard all had to help the victim get up off the floor and guide her outside the house. The
victim fell a second time when she was walking down the steps outside of the home.
{¶5} Appellant agreed to give the victim a ride home from the party. Raynard was in the
front passenger’s seat of appellant’s vehicle, and the victim and Nautica were in the backseat.
Appellant first stopped at Nautica’s apartment, where the victim got out of the vehicle and
vomited for the second time. Nautica and Raynard exited appellant’s vehicle and went upstairs
to Nautica’s apartment, leaving only appellant and the victim in the vehicle. Appellant drove
the vehicle behind the apartment building, got into the backseat of the car, pulled down the
victim’s pants, and had sexual intercourse with her. At some point while Nautica was upstairs
in her apartment, Raynard returned to appellant’s vehicle and also engaged in sexual intercourse
with the victim.
{¶6} Appellant proceeded to drive the victim home to her apartment. Upon arrival,
Raynard helped the victim out of appellant’s vehicle and escorted her upstairs into her apartment.
The following day, before going into work, the victim told her boyfriend and Nautica that
appellant raped her.
{¶7} Nautica testified that she received phone calls from appellant the morning after the
party. She explained that appellant “basically [told] me to tell [the victim] to stop making up
rumors about him raping her.” (Tr. 320.) Appellant told Nautica that he did not rape the
victim, and that they had consensual sex. Appellant advised Nautica, “[w]ell, you better tell [the
victim] to tell the truth before I put these videos out.” (Tr. 320.) Nautica asked appellant what
videos he was referring to. Appellant told Nautica that he had two videos: (1) a video of him
and the victim having sex, and (2) a video of Raynard and the victim having sex. Appellant
believed that he was only speaking with Nautica during this phone call. However, the victim’s
guardian Marcy Ivory, Chermetria Rivers, and Leslie Rivers were also on the line listening to the
conversation.
{¶8} Appellant sent both videos to Nautica’s Facebook inbox. Before sending the videos
to Nautica, however, appellant had already posted the video of the victim and Raynard on his
Facebook page. Nautica testified that appellant threatened the victim with the videos: “Tell
[the victim] to stop lying or I’m going to put these videos out here.” (Tr. 323.) According to
Chermetria, appellant indicated that he would “expose” the victim at 6:00 p.m. if she did not stop
saying that he raped her. (Tr. 365.) After speaking with appellant about the videos, Nautica
called the victim and “told her what [appellant] said.” (Tr. 325.)
{¶9} While the victim was at work, she received a phone call from Nautica during which
Nautica informed her that appellant wanted to speak with her. The victim explained that she did
not want to speak with appellant. The victim further asserted, “[Nautica] called me and
threatened me [to] drop the charges on [appellant] or he would tell on Facebook.” (Tr. 450.)
The victim testified that she did not know that there were any videos taken the night of the party.
{¶10} While the victim was at work, she saw a video, which had been posted on
Facebook, of Raynard “trying to put his penis in[side her vagina.]” (Tr. 452-453.) The victim
explained that she had no recollection of Raynard attempting to insert his penis inside of her on
the night of the party.
{¶11} A second video was recorded on the night of the party. This video showed
appellant having sex with the victim. The victim testified that she had not seen this video of
appellant and her prior to appellant’s trial. (Tr. 455.)
{¶12} After her shift, the victim went to the hospital with Ivory and her boyfriend.
Sexual Assault Nurse Examiner Denise Robinson administered a rape kit examination. The
victim advised Robinson that she had been raped by appellant. Thereafter, the victim spoke
with officers from the Cleveland Heights Police Department. She advised the officers that both
appellant and Raynard raped her. Officer Jemond Riffe prepared a report based on his
conversation with the victim.
{¶13} Detective Craig Schoffstall interviewed the victim and Ivory on November 2, 2016.
During this interview, Ivory showed Detective Schoffstall the video of Raynard and the victim.
Appellant gave the investigators consent to search his phone. The phone was sent for forensic
analysis, but the videos of Raynard and appellant engaging in sexual intercourse with the victim
were not recovered.
{¶14} Appellant was arrested on December 7, 2016. On December 28, 2016, in
Cuyahoga C.P. No. CR-16-611300-A, the Cuyahoga County Grand Jury returned a five-count
indictment charging appellant with: (1) rape, in violation of R.C. 2907.02(A)(1)(c); (2)
kidnapping, in violation of R.C. 2905.01(A)(4); (3) extortion, in violation of R.C. 2905.11(A)(5);
(4) intimidation of a crime victim or witness, in violation of R.C. 2921.04(B)(1); and (5)
pandering obscenity, in violation of R.C. 2907.32(A)(1). Raynard was also charged as a
codefendant in CR-16-611300-B for his involvement in the October 29, 2016 incident. Raynard
pled guilty on July 26, 2017, to attempted kidnapping and extortion, and the trial court sentenced
Raynard to a prison term of four years.
{¶15} Appellant was arraigned on January 3, 2017. He pled not guilty to the indictment.
{¶16} Prior to the commencement of trial, defense counsel moved to dismiss the case on
speedy trial grounds. The trial court denied defense counsel’s motion, concluding that
appellant’s speedy trial time had not expired.
{¶17} A jury trial commenced on November 27, 2017. At the close of trial, the jury
returned its verdict on November 30, 2017. The jury found appellant not guilty on the rape and
kidnapping counts. The jury found appellant guilty of the extortion, intimidation of a crime
victim, and pandering obscenity counts.
{¶18} The trial court held a sentencing hearing on December 5, 2017. The trial court
sentenced appellant to a prison term of seven years: three years on the extortion count, three
years on the intimidation count, and one year on the pandering obscenity count. The trial court
ordered the counts to run consecutively.
{¶19} The trial court also found appellant in violation of his postrelease control in
Cuyahoga C.P. No. CR-12-565610-A. The trial court terminated appellant’s postrelease control
and ordered him to serve the remaining balance of his term or one year, whichever is greater, in
prison. The court ordered the sentence for violating postrelease control to run consecutively to
the prison sentence on the extortion, intimidation, and pandering obscenity counts. Finally,
based on appellant’s pandering obscenity conviction, the trial court classified appellant as a Tier I
sex offender and reviewed his reporting requirements.
{¶20} Appellant filed the instant appeal challenging his convictions and the trial court’s
sentence on December 21, 2017. He assigns six errors for review:
I. The trial court erred in denying the defendant’s motion to dismiss.
II. The state of Ohio failed to present sufficient evidence to support the
conviction of extortion and Burks’ conviction of Count 3 is against the manifest
weight of the evidence.
III. The state of Ohio failed to present sufficient evidence to support the
conviction of intimidating a crime victim witness and Burks’ conviction in Count
4 is against the manifest weight of the evidence.
IV. The state of Ohio failed to present sufficient evidence to support the
conviction of pandering obscenity and Burks’ conviction in Count 5 is against the
manifest weight of the evidence.
V. The trial court erred when it failed to merge Count 3 extortion and Count 4
intimidating a crime victim witness.
VI. The trial court erred when it imposed a consecutive sentence of
imprisonment.
II. Law and Analysis
A. Speedy Trial
{¶21} In his first assignment of error, appellant argues that the trial court erred by denying
defense counsel’s motion to dismiss based on speedy trial grounds.
1. Standard of Review
{¶22} Appellate review of a trial court’s decision on a motion to dismiss for a speedy trial
violation raises a mixed question of law and fact. State v. Loder, 8th Dist. Cuyahoga Nos.
93242 and 93865, 2010-Ohio-3085, ¶ 9, citing State v. Easley, 4th Dist. Scioto No. 03CA2910,
2005-Ohio-767. This court applies a de novo review to the legal issues, and independently
determines whether the trial court correctly applied the law to the facts of the case. Loder at id.
However, we afford great deference to the trial court’s findings of fact, if any, if the factual
findings are supported by competent, credible evidence. Id. When reviewing the legal issues
presented in a speedy trial claim, we are required to strictly construe the relevant statutes against
the state. Id., citing Brecksville v. Cook, 75 Ohio St. 3d 53, 57, 661 N.E.2d 706 (1996).
{¶23} In State v. Baker, 78 Ohio St. 3d 108, 676 N.E.2d 883 (1997), the Ohio Supreme
Court discussed the constitutional and statutory rights to a speedy trial.
The right to a speedy trial is guaranteed by the Sixth Amendment to the United
States Constitution and Section 10, Article I of the Ohio Constitution. The
individual states are obligated under the Fourteenth Amendment to afford a
person accused of a crime such a right. Klopfer v. North Carolina, 386 U.S. 213,
222-223, 87 S. Ct. 988, 18 L. Ed. 2d 1, 7-8 (1967). However, the states are free to
prescribe a reasonable period of time to conform to constitutional requirements.
Barker v. Wingo, 407 U.S. 514, 523, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). In
response to this constitutional mandate, Ohio has enacted R.C. 2945.71 to
2945.73, which designate specific time requirements for the state to bring an
accused to trial.
Id. at 110.
{¶24} In the instant matter, appellant appears to argue that both his constitutional and
statutory speedy trial rights were violated. However, a careful review of appellant’s brief
reveals that his speedy trial claim focuses on his statutory speedy trial rights under R.C. 2945.71,
rather than his constitutional speedy trial rights.
2. Statutory Speedy Trial Right
{¶25} Appellant contends that the statutory speedy trial time set forth in R.C. 2945.71 to
2945.73 expired before he was brought to trial. On November 27, 2017, before the trial court
began empaneling the jury, defense counsel moved to dismiss the case on speedy trial grounds,
arguing that more than 320 days had elapsed since December 7, 2016, when appellant was
arrested.
{¶26} Pursuant to R.C. 2945.71(C)(2), “the state is required to bring a defendant to trial
on felony charges within 270 days of arrest.” State v. Martin, 8th Dist. Cuyahoga No. 106038,
2018-Ohio-1843, ¶ 43, citing State v. Geraci, 8th Dist. Cuyahoga Nos. 101946 and 101947,
2015-Ohio-2699, ¶ 19. The “triple count provision” set forth in R.C. 2945.71(E), however,
provides that each day a defendant is held in jail in lieu of bail counts as three days for purposes
of calculating speedy trial time. Geraci at id. Furthermore, R.C. 2945.72 provides that speedy
trial time may be tolled by certain events, including a defendant’s requests for continuances and
any actions or neglect of the defendant that causes delay.
{¶27} In the instant matter, appellant was arrested on December 7, 2016. Appellant was
incarcerated while awaiting trial. Accordingly, pursuant to the “triple count provision” of R.C.
2945.71(E), the state was required to bring appellant to trial within 90 days. However, the triple
count provision is inapplicable when the accused is held in jail under a valid parole holder. See
State v. Glover, 8th Dist. Cuyahoga No. 89059, 2007-Ohio-5727, ¶ 3, citing State v. Brown, 64
Ohio St. 3d 476, 479, 597 N.E.2d 97 (1992).
{¶28} In response to defense counsel’s motion to dismiss, the prosecutor stated, in
relevant part, “I do believe that [appellant] does have a parole holder that’s out there, first and
foremost.” (Tr. 97.) The prosecutor further argued that appellant’s speedy trial time was tolled
by (1) the defense’s motion for a bill of particulars and motion for discovery, filed on January 4,
2017, (2) other events, such as continuances and pretrial hearings, that occurred between January
4 and June 26, 2017, when the state requested a continuance due to the prosecutor’s
unavailability, (3) appellant’s pro se motion to dismiss, filed on February 28, which was still
pending, and (4) defense counsel’s failure to respond to the state’s demand for discovery, filed on
February 8, 2017.
{¶29} After the prosecutor opined that appellant had a parole holder, the trial court
confirmed that appellant did, in fact, have an APA1 hold in Cuyahoga C.P. Nos.
CR-13-571228-A and CR-12-565610-A, and that appellant was on postrelease control in
CR-12-565610 when the charges in the instant case arose. (Tr. 97-98.) In denying the motion
to dismiss, the trial court concluded, “the speedy trial time of [appellant] has not run. He is on
— That’s with the finding that he is on Post-Release Control in the State of Ohio, so he’s running
one for one not three for one, and the discovery and other motions that have been filed by the
defense.” (Tr. 99-100.)
{¶30} In this appeal, appellant argues that the trial court erred in determining that the
triple count provision did not apply because the state failed to produce any testimony or
documentation in support of its assertion that appellant had a parole holder.
{¶31} The state acknowledges that it did not produce a factual finding, a copy of a parole
holder, or a judgment entry confirming that appellant did, in fact, have a parole holder during the
trial court’s November 27, 2017 hearing on defense counsel’s motion to dismiss. Nevertheless,
the state argues that the transcript from the hearing provides this court with a sufficient basis to
conclude that (1) appellant had a valid parole holder and (2) the triple count provision was
inapplicable. In support of its argument, the state directs this court to Glover, 8th Dist.
Cuyahoga No. 89059, 2007-Ohio-5727.
{¶32} In Glover, this court explained,
There is not a copy of a parole holder in the record and, although the trial court
issued an entry denying Glover’s motion to dismiss, the entry did not list the
grounds for denial. However, in the absence of a copy of a parole holder, or filed
findings of fact and a judgment entry memorializing a ruling regarding a parole
holder, the transcript of the trial court’s hearing can provide sufficient evidence of
a valid parole holder. State v. Adkins, [8th Dist. Cuyahoga No. 70326, 1997 Ohio
App. LEXIS 1314 (Apr. 3, 1997)], citing Brown, [64 Ohio St.3d at 479, 597
N.E.2d 97]; [State v. Ballow, 9th Dist. Medina No. 2527-M, 1996 Ohio App.
LEXIS 2807 (July 3, 1996)].
Our review of the trial transcript indicates that the trial judge denied Glover’s
motion to dismiss because, in addition to the various continuances requested by
Glover, “there was and is an Adult Parole Authority holder on the defendant
concerning the case for which he’s on, or was on parole.” No one objected to the
trial court’s characterization or challenged the existence of the parole holder.
Accordingly, the record in this case provides us with a sufficient basis to conclude
that there was, in fact, a valid parole holder on Glover and, therefore, the
triple-count provisions of the speedy trial statute did not apply.
Glover at ¶ 4-5.
{¶33} Here, as noted above, the trial court denied defense counsel’s motion to dismiss on
the basis that appellant had parole holders in two criminal cases, CR-13-571228 and
CR-12-565610, and that appellant was on postrelease control in CR-12-565610 when he was
charged with the offenses arising from the October 29, 2016 incident. Although the state did not
produce a copy of appellant’s parole holders during the November 27, 2017 hearing, and there is
not a copy of the parole holders in the record before this court, we find, like Glover, that the
transcript from the November 27, 2017 proceedings provides us with a sufficient basis to
conclude that appellant had a valid parole holder, making the triple count provision inapplicable.
Finally, defense counsel did not object to the prosecutor’s assertion that appellant had a parole
holder, or dispute the existence of a parole holder. Accordingly, we find no merit to appellant’s
assertion that the trial court erred in determining that he was not entitled to the triple count
provision under R.C. 2945.71(E) based on his parole holders.
{¶34} As noted above, appellant was arrested on December 7, 2016. Because the triple
count provision did not apply, the state had 270 days within which to bring appellant to trial.
The statutory speedy trial period would have expired, if not extended, on September 4, 2017.
{¶35} Appellant’s trial commenced on November 27, 2017 — 355 days after he was
arrested. After reviewing the record, however, we find that appellant’s statutory speedy trial
right was not violated because speedy trial time was tolled by the defense’s requests for
continuances and appellant’s neglect in failing to respond to the state’s discovery demand.
{¶36} The record reflects that defense counsel filed a demand for discovery and a motion
for bill of particulars on January 4, 2017. A defendant’s demand for discovery tolls the speedy
trial time until the state responds to the discovery, or for a reasonable time, whichever is sooner.
State v. Shabazz, 8th Dist. Cuyahoga No. 95021, 2011-Ohio-2260, ¶ 26, 31; R.C. 2945.72(E).
The state served its response to appellant’s discovery request on February 7, 2017. Accordingly,
speedy trial time was tolled from January 4 to February 7, 2017. The record additionally reflects
that the matter was continued at defense counsel’s request at various points from January 2017
through August 2017.
{¶37} The state filed its demand for discovery on February 8, 2017. The record reflects
that the defense did not respond to the state’s discovery request. The failure of a criminal
defendant to respond within a reasonable time to the state’s request for reciprocal discovery
constitutes neglect that tolls the running of speedy trial time pursuant to R.C. 2945.72(D). State
v. Palmer, 112 Ohio St. 3d 457, 2007-Ohio-374, 860 N.E.2d 1011, paragraph one of the syllabus.
Under most circumstances, 30 days is generally considered to be a reasonable time
to respond. [Geraci, 8th Dist. Cuyahoga Nos. 101946 and 101947,
2015-Ohio-2699, at ¶ 26]; see also Palmer at paragraph three of the syllabus
(determination of reasonable response time is based on the totality of the
circumstances).
State v. Michailides, 8th Dist. Cuyahoga No. 105966, 2018-Ohio-2399, ¶ 17.
{¶38} In this case, using 30 days as a reasonable response time, appellant’s speedy trial
time ran from February 8, when the state served its demand for discovery, until March 8, 2017,
when appellant reasonably should have responded to the state’s discovery demand, for a total of
30 speedy trial days. Thereafter, the speedy trial time was tolled due to appellant’s neglect in
failing to respond to the state’s discovery demand. Geraci at id., citing Palmer at paragraph one
of the syllabus; State v. Gibson, 8th Dist. Cuyahoga No. 100727, 2014-Ohio-3421, ¶ 23.
{¶39} Based on the foregoing analysis, appellant’s statutory speedy trial rights were not
violated.
3. Constitutional Right to a Speedy Trial
{¶40} Although appellant raises a statutory rather than a constitutional speedy trial claim,
we find that appellant’s constitutional right to a speedy trial was not violated in this matter.
{¶41} In determining whether a constitutional speedy trial violation exists, this court
balances four factors: (1) the length of the delay, (2) the reason for the delay, (3) the accused’s
assertion of his or her right to a speedy trial, and (4) the prejudice to the accused as a result of the
delay. Barker, 407 U.S. at 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101. “‘The first factor, the length of
the delay, is a “triggering mechanism,” determining the necessity of inquiry into the other
factors.”’ State v. Robinson, 8th Dist. Cuyahoga No. 105243, 2017-Ohio-6895, ¶ 9, quoting
State v. Triplett, 78 Ohio St. 3d 566, 569, 679 N.E.2d 290 (1997), citing Barker at id. In order to
trigger the analysis of the second, third, and fourth Barker factors, the defendant must make a
threshold showing of a “presumptively prejudicial” delay. Doggett v. United States, 505 U.S.
647, 652, 112 S. Ct. 2686, 120 L. Ed. 2d 520 (1992). “Post-accusation delay approaching one
year is generally found to be presumptively prejudicial.” Robinson at id., quoting Doggett at fn.
1.
{¶42} In the instant matter, appellant was indicted on December 28, 2016, and his jury
trial commenced roughly 11 months later, on November 27, 2017. During this time period,
discovery and plea negotiations were ongoing. Appellant does not argue that this 11-month
delay was presumptively prejudicial. Nevertheless, assuming, arguendo, that appellant met the
threshold showing of a presumptively prejudicial delay, we cannot say that appellant’s
constitutional speedy trial rights were violated after balancing the other Barker factors.
{¶43} As noted above, the matter was continued at defense counsel’s request at various
points from January 2017 through August 2017. During this time period, a total of 14 pretrial
hearings were set and/or held at the request of the defense. Furthermore, the originally set trial
date of April 24, 2017, was continued at the request of the defense. Finally, appellant has not
alleged, much less demonstrated, any prejudice resulting from the 11-month delay between the
indictment and the commencement of trial. Accordingly, there was no violation of appellant’s
constitutional speedy trial rights.
{¶44} For all of the foregoing reasons, appellant’s first assignment of error is overruled.
Appellant’s statutory and constitutional speedy trial rights were not violated.
B. Sufficiency and Manifest Weight
{¶45} In his second, third, and fourth assignments of error, appellant argues that his
convictions for extortion, intimidation of a crime victim, and pandering obscenity were not
supported by sufficient evidence and against the manifest weight of the evidence.
1. Standard of Review
{¶46} The test for sufficiency requires a determination of whether the prosecution met its
burden of production at trial. State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598,
¶ 12. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime proven
beyond a reasonable doubt. State v. Thompkins, 78 Ohio St. 3d 380, 386, 678 N.E.2d 541
(1997).
{¶47} In contrast to a sufficiency argument, a manifest weight challenge questions
whether the state met its burden of persuasion. Bowden at id. A reviewing court “weighs the
evidence and all reasonable inferences, considers the credibility of witnesses and determines
whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.”
Thompkins at 388. A conviction should be reversed as against the manifest weight of the
evidence only in the most “exceptional case in which the evidence weighs heavily against the
conviction.” Id.
{¶48} Although we review credibility when considering the manifest weight of the
evidence, we are cognizant that determinations regarding the credibility of witnesses and the
weight of the testimony are primarily for the trier of fact. State v. Bradley, 8th Dist. Cuyahoga
No. 97333, 2012-Ohio-2765, ¶ 14, citing State v. DeHass, 10 Ohio St. 2d 230, 227 N.E.2d 212
(1967). The trier of fact is best able “to view the witnesses and observe their demeanor,
gestures, and voice inflections, and use these observations in weighing the credibility of the
proffered testimony.” State v. Wilson, 113 Ohio St. 3d 382, 2007-Ohio-2202, 865 N.E.2d 1264,
¶ 24. The jury may take note of any inconsistencies and resolve them accordingly, “believ[ing]
all, part, or none of a witness’s testimony.” State v. Raver, 10th Dist. Franklin No. 02AP-604,
2003-Ohio-958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964).
2. Extortion
{¶49} Appellant was convicted of extortion, in violation of R.C. 2905.11(A)(5), which
provides:
(A) No person, with purpose to obtain any valuable thing or valuable benefit or to
induce another to do an unlawful act, shall do any of the following:
(5) Expose or threaten to expose any matter tending to subject any person to
hatred, contempt, or ridicule, or to damage any person’s personal or business
repute, or to impair any person’s credit.
R.C. 2905.11(A)(5)(c) provides that a “‘threat’ includes a direct threat and a threat by innuendo.”
{¶50} In support of his sufficiency challenge, appellant argues that (1) the state failed to
prove that he released the video of the events that transpired inside the vehicle for any purpose
other than “to exonerate himself and Raynard Rivers of the false rape allegation(s) the alleged
victim made”; (2) the victim did not explain how her reputation was damaged by the Facebook
post; (3) the state failed to prove that he made an “unlawful threat”; and (4) it was Nautica, not
appellant, who passed the message to the victim. Appellant’s brief at 15-16.
{¶51} Regarding appellant’s argument that he posted the video on Facebook in order to
defend against the victim’s allegations and show that the sexual encounter with the victim was
consensual, “[t]he truth is no defense to a charge of extortion.” State v. Workman, 14 Ohio
App.3d 385, 390, 471 N.E.2d 853 (8th Dist.1984). In Workman, the defendant-appellant sent a
letter to a witness, the victim’s mother, and attempted to argue that he could not be convicted of
extortion because the contents of the letter were true. This court rejected the appellant’s
argument, explaining, “[e]ven if the contents of the appellant’s letter were completely true, that
would not serve as a defense to a charge of extortion. Statements can be true and still cause
ridicule, contempt, and damage to a person’s reputation.” Id.
{¶52} Here, even if appellant posted the video in order to defend against the victim’s
allegations and demonstrate that the sexual conduct was consensual, appellant cannot defend
against the extortion charge on this basis because the video displaying the sexual encounter
between the victim and Raynard — whether or not it was consensual — would still undoubtedly
cause ridicule, contempt, and damage to the victim’s reputation. The record reflects that the
victim was intoxicated at the time that the sexual conduct between her, appellant, and Raynard
occurred. The victim did not know that there were video recordings of the sexual conduct, or
that the videos were retained by appellant. Finally, the victim and Raynard are cousins. (See tr.
302, 401.) Under these circumstances, we find that the publication of the videos, particularly on
a popular social media website like Facebook, would undeniably subject the victim to ridicule,
contempt, and damage her reputation.
{¶53} In support of his argument that the state failed to prove that he made an unlawful
threat to the victim, appellant emphasizes that he never spoke with the victim directly after the
October 29, 2016 incident. Furthermore, appellant appears to argue that he delivered a message,
rather than an unlawful threat, to Nautica, who in turn, passed this message along to the victim.
We find no merit to these arguments.
{¶54} Nautica testified that appellant used the videos to threaten the victim. She
explained that the day after the October 29, 2016 incident, appellant said to her, “[t]ell that
b[***]h to stop lying [about what transpired inside the vehicle] or I’m going to put these videos
out here.” (Tr. 324.) After she spoke with appellant, Nautica testified that she called the victim
and told her what appellant said about posting the videos.
{¶55} In addition to Nautica’s testimony, the victim testified, “[Nautica] called me and
threatened me [to] drop the charges on [appellant] or he would tell on Facebook.” (Tr. 450.)
The victim confirmed on direct examination that it was appellant, not Nautica, that threatened
her:
Q. So did [Nautica] threaten you or did [appellant] threaten you?
A. [Appellant].
Q. [Appellant] threatened you?
A. Yes.
(Tr. 450.)
{¶56} After reviewing the record, we find that the testimony of Nautica and the victim, if
believed, was sufficient to support appellant’s conviction for extortion. Appellant’s statement to
Nautica — that he would post the videos of the victim engaging in sexual conduct with him and
Raynard on Facebook if she did not “stop lying” about what transpired inside the vehicle —
constitutes a direct threat. Furthermore, it is inconsequential that appellant delivered this threat
to Nautica, the victim’s second cousin, rather than to the victim directly. See State v. Lemons,
8th Dist. Cuyahoga No. 101361, 2015-Ohio-2382, ¶ 58-59, citing State v. Long, 1st Dist.
Hamilton No. C-790354, 1980 Ohio App. LEXIS 10503, 8 (Apr. 16, 1980) (appellant’s
conviction for extortion was supported by sufficient evidence where he sent an email to the
victim’s father insinuating that he would “expose [the victim’s] entire family,” subject the victim
to ridicule, and damage the victim’s personal reputation.).
{¶57} Finally, to the extent that appellant argues that he did not threaten to post the
videos in order to obtain any valuable thing or valuable benefit, we find no merit to this
argument. In Workman, the defendant-appellant essentially threatened to expose embarrassing
stories about the victim’s mother unless she decided not to testify against him at his trial on
charges of kidnapping, attempted rape, intimidation, and extortion. Workman, 14 Ohio App. 3d
at 393, 471 N.E.2d 853. This court recognized that the victim’s mother’s “failure to testify
against him [at trial] would have been of tremendous value to the appellant.” Id.
{¶58} Here, like Workman, appellant threatened to expose videos of him and Raynard
engaging in sexual conduct with the victim unless the victim refrained from discussing what
transpired inside the vehicle and/or alleging that the sexual conduct was not consensual. The
victim’s failure to speak about the incident or report the incident to the police would have been
of tremendous value to appellant.
{¶59} Based on the foregoing analysis, we find that appellant’s extortion conviction is
supported by sufficient evidence.
{¶60} Regarding appellant’s manifest weight challenge, he does not develop a separate
argument with respect to the manifest weight of the evidence. Rather, appellant’s entire
argument focuses on whether there was sufficient evidence supporting his extortion conviction.
See Cleveland v. Hall, 8th Dist. Cuyahoga No. 101820, 2015-Ohio-2698, ¶ 14, citing App.R.
16(A)(7) (this court disregarded appellant’s assignment of error concerning the sufficiency of the
evidence and only addressed the issues relating to the manifest weight of the evidence because
the appellant did not make a specific argument regarding why the convictions were not supported
by sufficient evidence, in violation of App.R. 16(A)(7)).
{¶61} Appellant does, however, argue that the content of the message that he conveyed to
Nautica, which was then relayed to the victim, was “unclear and multiple different versions were
given as to what was said during this one phone call.” Appellant’s brief at 16. This assertion
arguably raises a manifest weight issue.
{¶62} As noted above, Ivory, Chermetria, and Leslie were listening to the phone call
between appellant and Nautica. Nautica, Ivory, Chermetria, and Leslie testified at trial regarding
this conversation.
{¶63} Chermetria testified that she heard appellant talking about the events that transpired
inside the vehicle the night before during a phone call at approximately 4:00 or 4:30 p.m. (Tr.
365.) She explained that five people were involved with the phone call: herself, Nautica,
Leslie, appellant, and Ivory. Chermetria testified that during the phone call, appellant stated, “if
[the victim] don’t stop saying that he raped her, then he was going to expose her.” (Tr. 365.)
Chermetria asserted that appellant indicated he would “expose” the victim at 6:00 p.m.
{¶64} Leslie testified that she was involved in a “three-way call” the day after the October
29, 2016 incident with Chermetria and Ivory. (Tr. 291-292.) She received a phone call from
Nautica, and to which Nautica connected Leslie, Chermetria, and Ivory. Leslie recognized
appellant’s voice on the phone with Nautica. Leslie testified that during the phone call,
appellant was “very cocky,” and he was making a joke and laughing about the incident that
transpired with the victim the night before. Appellant further stated that the victim should not
have gotten drunk. Leslie testified that appellant stated, “if the B doesn’t stop talking I raped her
I’m going to release the video on social media.” (Tr. 297-298.) She confirmed that appellant
stated, “[i]f the b[****] doesn’t stop talking I’m going to release the video at a certain time.”
(Tr. 298.) Leslie did not respond to appellant’s assertions because he did not know she was on
the line listening to the conversation. Leslie opined that this phone call took place after
midnight, around 1:00 a.m.
{¶65} Ivory testified that she got “tagged in” to the phone call between Nautica and
appellant. Leslie and Chermetria also joined the phone call. She explained that during the
phone call, appellant “is like making fun of basically what had happened and was saying like,
[t]hat b[****] better not say anything or I’m going to release this video.” (Tr. 422.) Ivory
continued, “I just recall that [the victim] had to 6 o’clock p.m. to not say anything or not go to the
police or something like that. [Appellant is] giving her until 6 o’clock and call and say she’s not
or he was going to release the video also.” (Tr. 423-424.)
{¶66} After reviewing the record, we cannot say that appellant’s conviction for extortion
is against the manifest weight of the evidence. There were minor inconsistencies in the
witnesses’ testimony about the phone call, for instance, the time at which the conversation took
place or the exact words that appellant used in communicating the threat to Nautica. These
minor inconsistencies, however, do not cast serious doubt on appellant’s role in communicating
the threat to Nautica. The important aspects of their testimony regarding the threat that
appellant conveyed to Nautica were consistent with one another.
{¶67} The jury heard the witnesses’ testimony and was able to take into account any
inconsistencies and to assess the credibility of the witnesses. We cannot say that this is the
exceptional case where the evidence weighs heavily against the conviction for extortion, nor that
the jury clearly lost its way and created a manifest miscarriage of justice.
{¶68} For all of the foregoing reasons, appellant’s second assignment of error is
overruled.
3. Intimidating a Crime Victim
{¶69} Appellant was convicted of intimidating a crime victim, in violation of R.C.
2921.04(B)(1), which provides,
(B) No person, knowingly and by force or by unlawful threat of harm to any
person or property or by unlawful threat to commit any offense or calumny against
any person, shall attempt to influence, intimidate, or hinder any of the following
persons:
(1) The victim of a crime or delinquent act in the filing or prosecution of criminal
charges or a delinquent child action or proceeding[.]
{¶70} In support of his sufficiency challenge, appellant argues that he never threatened
the victim after they had sex, he never made an unlawful threat of harm against the victim, and
that the victim did not testify that she was in fear of appellant. He appears to argue that he did
not threaten the victim, but merely requested that she tell the truth about what transpired inside
the vehicle.
{¶71} After reviewing the record, we find that the state’s evidence, if believed, was
sufficient to support appellant’s intimidation conviction. It is undisputed that appellant did not
attempt to use physical force or threaten to inflict physical harm to the victim in an attempt to
intimidate or influence the victim in the prosecution of criminal charges. However, the record
reflects that appellant unlawfully threatened to commit the offense of pandering obscenity against
the victim.
{¶72} As noted above, appellant advised Nautica that he would post the videos of the
victim engaging in sexual conduct with him and Raynard on Facebook if she continued to tell
people that she was raped. As will be discussed below in the analysis of appellant’s fourth
assignment of error, posting a video of such obscene material constitutes a violation of R.C.
2907.32(A)(1).
{¶73} Finally, regarding appellant’s argument that the state failed to establish that the
victim was in fear of him, this argument is misplaced.
R.C. 2921.04(B) requires only an attempt to influence, intimidate, or hinder.
“[T]he defendant need only try to create fear about or try to influence or hinder the
filing or prosecution of criminal charges.” State v. Thompson, 7th Dist.
Columbiana No. 13 CO 20, 2014-Ohio-1225, ¶ 16, citing R.C. 2921.04(B).
There is no requirement that the victim actually feel intimidated. Thompson at
id., citing State v. Williams, 8th Dist. Cuyahoga No. 94261, 2011-Ohio-591, ¶ 14
(“[n]othing in the statute requires the victim to even know that the defendant
attempted to intimidate the witness”).
State v. Serrano, 2016-Ohio-4691, 69 N.E.3d 87, ¶ 44 (8th Dist.).
{¶74} The state was only required to show that appellant knowingly by unlawful threat to
commit any offense against the victim attempted to influence, intimidate, or hinder the victim in
reporting and/or prosecuting the case. We find that the state met its burden of production in this
respect because the testimony of Nautica and the victim demonstrated that appellant knowingly
threatened to commit the offense of pandering obscenity against the victim in an attempt to
influence, intimidate, or hinder the victim from discussing the events that transpired on the night
of the party.
{¶75} Based on the foregoing analysis, appellant’s intimidation conviction is supported
by sufficient evidence.
{¶76} Regarding appellant’s manifest weight challenge, he does not develop a separate
argument with respect to the manifest weight of the evidence. Rather, appellant’s entire
argument focuses on whether there was sufficient evidence supporting his intimidation
conviction. Nevertheless, after reviewing the record, we cannot say that this is the exceptional
case where the evidence weighs heavily against the conviction for intimidation, nor that the jury
clearly lost its way and created a manifest miscarriage of justice. Therefore, appellant’s
intimidation conviction is not against the manifest weight of the evidence.
{¶77} Accordingly, appellant’s third assignment of error is overruled.
4. Pandering Obscenity
{¶78} Appellant was convicted of pandering obscenity in violation of
R.C. 2907.32(A)(1), which provides,
(A) No person, with knowledge of the character of the material or performance
involved, shall do any of the following:
(1) Create, reproduce, or publish any obscene material, when the offender knows
that the material is to be used for commercial exploitation or will be publicly
disseminated or displayed, or when the offender is reckless in that regard[.]
(Emphasis added.)
{¶79} R.C. 2907.01(F) provides, in relevant part, that material is obscene if,
[w]hen considered as a whole, and judged with reference to ordinary adults * * *
any of the following apply:
(1) Its dominant appeal is to prurient interest;
(2) Its dominant tendency is to arouse lust by displaying or depicting sexual
activity, masturbation, sexual excitement, or nudity in a way that tends to
represent human beings as mere objects of sexual appetite;
(3) Its dominant tendency is to arouse lust by displaying or depicting bestiality or
extreme or bizarre violence, cruelty, or brutality;
(4) Its dominant tendency is to appeal to scatological interest by displaying or
depicting human bodily functions of elimination in a way that inspires disgust or
revulsion in persons with ordinary sensibilities, without serving any genuine
scientific, educational, sociological, moral, or artistic purpose;
(5) It contains a series of displays or descriptions of sexual activity, masturbation,
sexual excitement, nudity, bestiality, extreme or bizarre violence, cruelty, or
brutality, or human bodily functions of elimination, the cumulative effect of which
is a dominant tendency to appeal to prurient or scatological interest, when the
appeal to such an interest is primarily for its own sake or for commercial
exploitation, rather than primarily for a genuine scientific, educational,
sociological, moral, or artistic purpose.
{¶80} R.C. 2907.01(J) defines “material” as
any book, magazine, newspaper, pamphlet, poster, print, picture, figure, image,
description, motion picture film, phonographic record, or tape, or other tangible
thing capable of arousing interest through sight, sound, or touch and includes an
image or text appearing on a computer monitor, television screen, liquid crystal
display, or similar display device or an image or text recorded on a computer hard
disk, computer floppy disk, compact disk, magnetic tape, or similar data storage
device.
{¶81} R.C. 2907.01(A) defines “sexual conduct” as
vaginal intercourse between a male and female; anal intercourse, fellatio, and
cunnilingus between persons regardless of sex; and, without privilege to do so, the
insertion, however slight, of any part of the body or any instrument, apparatus, or
other object into the vaginal or anal opening of another. Penetration, however
slight, is sufficient to complete vaginal or anal intercourse.
{¶82} In support of his sufficiency challenge, appellant argues that posting the video of
the victim and Raynard engaging in sexual conduct does not constitute pandering obscenity
because the video was not used for commercial exploitation. Appellant’s argument is
misplaced.
{¶83} R.C. 2907.32(A)(1) does not require that the obscene material be created,
reproduced, or published for commercial exploitation. It is also a violation of the statute for an
offender to create, reproduce, or publish the obscene material when the offender (1) knows that
the material will be publicly disseminated or displayed, or (2) is reckless in that regard.
{¶84} Appellant further argues that he did not post the video on Facebook in order to
arouse lust, but rather to defend against the victim’s rape allegations and demonstrate that the
sexual conduct was consensual. Again, appellant’s argument is misplaced.
{¶85} The state was not required to prove that appellant posted the video on Facebook in
order to arouse lust. Rather, pursuant to R.C. 2907.01(F), the material is obscene when its
dominant tendency is to arouse lust “[w]hen considered as a whole, and judged with reference to
ordinary adults[.]” (Emphasis added.) Thus, for purposes of R.C. 2907.32 and 2907.01, it is not
relevant whether appellant believed the video aroused lust, or whether he posted the video in
order to arouse lust in viewers.
{¶86} After reviewing the record, we find that the state’s evidence, if believed, is
sufficient to support appellant’s conviction for pandering obscenity. The victim testified that the
video appellant posted on Facebook showed Raynard trying to insert his penis inside of her.
Leslie testified that the video showed “[the victim] facedown in the seat of the car and she was
kind of out of it, and [Raynard] pulled her pants down — she was on her stomach and he pulled
her pants down and they were on top of her from behind.” (Tr. 304.) Detective Schoffstall
testified that Ivory showed him a video, and the video “showed the female victim, [C.E.],
engaged in sex with two males.” (Tr. 399.) He explained that the two males “were taking
turns, so one was videotaping and then the other was videotaping as the other one had sex.” (Tr.
399.)
{¶87} The testimony of the victim, Leslie, and Detective Schoffstall established that the
video appellant posted on Facebook displayed Raynard and the victim engaging in “sexual
conduct” as defined in R.C. 2907.01(A). Furthermore, the record reflects that appellant
published and/or publicly displayed the video by posting it on his Facebook page, where it was
viewed by several witnesses.
{¶88} Based on the foregoing analysis, we find that appellant’s conviction for pandering
obscenity was supported by sufficient evidence.
{¶89} Regarding appellant’s manifest weight challenge, he does not develop a separate
argument with respect to the manifest weight of the evidence. Rather, appellant’s entire
argument focuses on whether there was sufficient evidence supporting his pandering obscenity
conviction. Nevertheless, after reviewing the record, we cannot say that this is the exceptional
case where the evidence weighs heavily against the conviction for pandering obscenity, nor that
the jury clearly lost its way and created a manifest miscarriage of justice. Therefore, appellant’s
conviction for pandering obscenity is not against the manifest weight of the evidence.
Accordingly, appellant’s fourth assignment of error is overruled.
C. Allied Offenses
{¶90} In his fifth assignment of error, appellant argues that the trial court erred by failing
to merge the extortion and intimidation counts for sentencing purposes. He contends that both
offenses were committed by one act — the phone call he placed to Nautica — and with the same
animus.
{¶91} Pursuant to R.C. 2941.25(A), “[w]here 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.” R.C. 2941.25(B) provides, however, that “[w]here the defendant’s conduct constitutes
two or more offenses of dissimilar import, or where his [or her] 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.”
In State v. Ruff, 143 Ohio St. 3d 114, 2015-Ohio-995, 34 N.E.3d 892, the Ohio
Supreme Court explained that an allied offenses analysis is not limited to just a
consideration of the defendant’s conduct. The Ruff court held that while an allied
offenses analysis begins with an examination of the defendant’s conduct, courts
must also consider whether (1) the offenses are dissimilar in import or
significance, (2) the offenses were committed separately, or (3) the offenses were
committed with separate animus or motivation. Id. at paragraph three of the
syllabus, citing R.C. 2941.25(B). Two or more offenses are of dissimilar import
within the meaning of R.C. 2941.25(B) “when the defendant’s conduct constitutes
offenses involving separate victims or if the harm that results from each offense is
separate and identifiable.” Id. at paragraph two of the syllabus.
State v. Williams, 8th Dist. Cuyahoga No. 106266, 2018-Ohio-3368, ¶ 81.
{¶92} In the instant matter, after the jury returned its verdict, the trial court sought input
from the parties regarding whether the extortion and intimidation counts merged as allied
offenses for sentencing purposes. The state filed a sentencing memorandum on December 4,
2017, in which it argued that the extortion and intimidation counts were not allied offenses of
similar import under the test established by the Ohio Supreme Court in Ruff because the offenses
were committed separately and with a separate animus or motivation.
{¶93} During the sentencing hearing, defense counsel argued that the extortion and
intimidation counts should merge pursuant to the two-part test in State v. Johnson, 128 Ohio
St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. Counsel asserted that the extortion and
intimidation offenses were committed by the same conduct and a single act, posting the video of
Raynard and the victim on Facebook, and that this single act was the basis for the extortion,
intimidation, and pandering obscenity offenses appellant was convicted of. (Tr. 577.)
{¶94} After considering the parties’ arguments, the trial court concluded that the extortion
and intimidation offenses were not allied offenses of similar import, explaining:
There are at least two separate actions here. There was [appellant’s] phone call
in which he threatened to post the video and then there was the later subsequent
and actual posting of the video. So there are two separate actions, link the threat
to the extortion count and the posting to the intimidation count.
(Tr. 578-579.)
{¶95} After reviewing the record, and applying the Ruff test, we find that the extortion
and intimidation convictions are not allied offenses of similar import because they were
committed separately and with separate animus or motivation. Contrary to appellant’s assertion,
the phone call with Nautica was not the basis for both offenses. Appellant committed the
extortion offense by threatening to release the videos of him and Raynard with the victim if she
continued to allege that she had been raped. Appellant’s motivation in committing this offense
was to silence the victim. Appellant committed the intimidation offense by posting the video of
Raynard and the victim on Facebook and sending the video of him and the victim to Nautica.
Appellant’s motivation in committing this offense was to intimidate the victim from coming
forward and to disparage the victim and her reputation.
{¶96} Appellant’s separate forms of conduct and motivations support the trial court’s
conclusion that the extortion and intimidation convictions were not allied offenses of similar
import. Accordingly, appellant’s fifth assignment of error is overruled.
D. Sentence
{¶97} In his sixth assignment of error, appellant argues that the trial court erred in
imposing consecutive sentences. Appellant does not challenge the trial court’s findings under
R.C. 2929.14(C)(4). Rather, appellant appears to argue that the trial court imposed consecutive
sentences in order to punish him for rejecting the plea agreements offered by the state and
exercising his right to trial.
{¶98} We review felony sentences under the standard set forth in R.C. 2953.08(G)(2).
State v. Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 16. R.C.
2953.08(G)(2) provides that when reviewing felony sentences, a reviewing court may overturn
the imposition of consecutive sentences where the court “clearly and convincingly” finds that (1)
“the record does not support the sentencing court’s findings under R.C. 2929.14(C)(4),” or (2)
“the sentence is otherwise contrary to law.”
A trial court may not sentence a defendant more severely simply because he
exercised his right to trial. Columbus v. Bee, 67 Ohio App. 2d 65, 425 N.E.2d
404, 425 N.E.2d 409 (10th Dist.1979). The United States Supreme Court has
held that a trial court violates the Due Process Clause of the Fourteenth
Amendment when the court, motivated by vindictiveness, imposes a harsher
sentence than previously discussed prior to trial. North Carolina v. Pearce, 395
U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969). A court may not punish an
accused for rejecting a plea and electing to proceed to trial. State v. Shepherd, 8th
Dist. Cuyahoga No. 97962, 2012-Ohio-5415, [¶] 68.
However, vindictiveness is not presumed merely because the trial court imposed a
stricter sentence than the one offered in plea negotiations. Id. In determining
whether a court was motivated by vindictiveness to impose a harsher sentence, the
record must affirmatively show retaliation as a result of the rejected plea bargain.
Id.; see also State v. Warren, 125 Ohio App. 3d 298, 307, 708 N.E.2d 288 (8th
Dist.1998). There must be some positive evidence demonstrating a vindictive
purpose on the court’s part. Shepherd at ¶ 68.
State v. Sultaana, 2016-Ohio-199, 57 N.E.3d 433, ¶ 52-53 (8th Dist.).
{¶99} In this case, appellant appears to argue that the trial court imposed maximum and
consecutive sentences on the extortion, intimidation, and pandering obscenity counts in order to
punish him “for refusing to plead guilty and exercising his right to a trial.” Appellant’s brief at
22. He further contends that the trial court should not have imposed maximum and consecutive
sentences because the jury acquitted him on the first-degree felony counts of rape and
kidnapping. After review, however, we find nothing in the record suggesting that the trial court
was motivated by vindictiveness.
{¶100} Before the jury trial commenced, the prosecutor explained the two plea
agreements that had been offered to appellant. (Tr. 7-8.) The parties did not, however, discuss
any particular sentence that would be agreed upon or recommended under these plea agreements.
{¶101} The trial court provided a reasonable and detailed explanation for imposing the
aggregate seven-year prison sentence. Before imposing its sentence, the trial court reviewed
appellant’s criminal history, which included convictions for assaulting a corrections officer,
robbery, having weapons while under disability, and domestic violence. The trial court
considered a report from the Ohio Department of Rehabilitation and Correction and Lorain
Correctional Institution that detailed multiple infractions appellant committed while he was
incarcerated.
{¶102} The trial court addressed appellant’s conduct in the instant matter, emphasizing
that appellant’s behavior was “appalling” and the court considered how appellant’s actions
affected the victim and caused her “great embarrassment.” (Tr. 584-585.) Finally, the trial
court considered that appellant committed the extortion, intimidation, and pandering obscenity
offenses while he was on postrelease control.
{¶103} It is undisputed that the trial court sentenced appellant within the permissible
statutory ranges set forth in R.C. 2929.14(A). The trial court’s sentencing journal entry
provides, in relevant part, “the court considered all required factors of the law. The court finds
that prison is consistent with the purpose of R.C. 2929.11.” Furthermore, the record reflects that
the trial court did, in fact, consider the sentencing factors under R.C. 2929.11 and 2929.12 in
imposing its sentence.
{¶104} Although appellant does not challenge the consecutive sentence findings the trial
court made during the sentencing hearing, the record reflects that the trial court complied with
R.C. 2929.14(C)(4) in imposing consecutive sentences.
{¶105} R.C. 2929.14(C)(4) provides that in order to impose consecutive sentences, the
trial court must find that consecutive sentences are (1) necessary to protect the public from future
crime or to punish the offender, (2) that such sentences would not be disproportionate to the
seriousness of the conduct and to the danger the offender poses to the public, and (3) that one of
the following applies:
(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
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 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.
{¶106} Compliance with R.C. 2929.14(C)(4) requires the trial court to make the statutory
findings at the sentencing hearing, which means that “‘the [trial] court must note that it engaged
in the analysis’ and that it ‘has considered the statutory criteria and specifie[d] which of the given
bases warrants its decision.’” State v. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, 16 N.E.3d
659, ¶ 26, quoting State v. Edmonson, 86 Ohio St. 3d 324, 326, 715 N.E.2d 131 (1999).
Further, the reviewing court must be able to discern that the record contains evidence to support
the findings. State v. Davis, 8th Dist. Cuyahoga No. 102639, 2015-Ohio-4501, ¶ 21, citing
Bonnell at ¶ 29. A trial court is not, however, required to state its reasons to support its findings,
nor is it required to give a rote recitation of the statutory language, “provided that the necessary
findings can be found in the record and are incorporated in the sentencing entry.” Bonnell at ¶
37.
{¶107} In this case, the trial court determined that R.C. 2929.14(C)(4)(a) applied as
appellant committed the extortion, intimidation, and pandering obscenity offenses while he was
on postrelease control in CR-12-565610. In making the requisite findings under R.C.
2929.14(C)(4), the trial court stated:
He did this all while on post-release control in Case Number 565610. The Court
finds the defendant’s conviction to be a violation of the terms of his post-release
control and the Court chooses to terminate his post-release control. He will be
ordered to serve the remaining term of his post-release control or one year,
whichever is greater, in custody of the Ohio Department of Rehabilitation and
Correction as a sanction for violating his post-release control terms.
His post-release control sanction will be served consecutively to the sentence I’m
about to impose on Case 611300 by operation of law.
I plan to impose consecutive terms. I find that consecutive sentences is necessary
to protect the public from future crimes, certainly to be committed by a man who
has no respect for other human beings, and to punish this outrageous behavior.
Consecutive sentences, a sentence of seven years is not disproportionate to the
seriousness of his conduct and to the danger he poses to the public. And that
these offenses were committed while he was on post-release control for a prior
offense.
(Tr. 585-586.)
{¶108} Although the trial court made the appropriate consecutive sentence findings
during the sentencing hearing, the trial court did not incorporate its consecutive sentence findings
into its sentencing journal entry as required by Bonnell. Accordingly, we remand the matter to
the trial court for the limited purpose of issuing a nunc pro tunc sentencing entry incorporating
the court’s R.C. 2929.14(C)(4) findings. See Bonnell at ¶ 30 (“A trial court’s inadvertent failure
to incorporate the statutory findings in the sentencing entry after properly making those findings
at the sentencing hearing does not render the sentence contrary to law; rather, such a clerical
mistake may be corrected by the court through a nunc pro tunc entry to reflect what actually
occurred in open court.”). Accord State v. Middleton, 8th Dist. Cuyahoga Nos. 106197, 106200,
and 106202, 2018-Ohio-2524, ¶ 6.
{¶109} For all of the foregoing reasons, appellant’s sixth assignment of error is overruled.
III. Conclusion
{¶110} After thoroughly reviewing the record, we affirm appellant’s convictions and the
trial court’s sentence. Appellant’s speedy trial rights were not violated. Appellant’s
convictions were supported by sufficient evidence and are not against the manifest weight of the
evidence. The trial court did not err by failing to merge the extortion and intimidation
convictions for sentencing purposes. The trial court did not err in imposing consecutive
sentences.
{¶111} The trial court failed to incorporate its R.C. 2929.14(C)(4) consecutive sentence
findings into its sentencing journal entry. Accordingly, we remand the matter to the trial court
for the limited purpose of issuing a nunc pro tunc sentencing entry incorporating the consecutive
sentence findings.
{¶112} Judgment affirmed; case remanded to the trial court for the issuance of a nunc pro
tunc sentencing journal entry.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas
court to carry this judgment into execution. The defendant’s convictions having been affirmed,
any bail pending appeal is terminated. Case remanded to the trial court for execution of
sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE
MARY EILEEN KILBANE, P.J., and
LARRY A. JONES, SR., J., CONCUR