DocketNumber: No. 80688.
Judges: Corrigan, O'Donnell, Cooney
Filed Date: 8/8/2002
Status: Precedential
Modified Date: 11/12/2024
concurring in judgment only.
{¶ 24} I concur with the majority’s decision to affirm the sentence imposed by the trial court. However, I write separately because I believe that it was an error for this court to deny Othman’s motion to supplement the record with the victim’s medical records.
{¶ 25} On appeal, it is our duty to determine whether by clear and convincing evidence the sentence is supported by the record. R.C. 2953.08(G). Further, when a trial court’s sentencing decision is appealed, “the record to review shall include all of the following, as applicable: any presentence, psychiatric or other investigative report * * * the trial record * * * [and] any oral or written statements made to or by the court’at the sentencing hearing.” R.C. 2953.08(F).
*87 {¶ 26} Here, the trial court specifically referred to the victim’s medical report and purportedly relied on the findings therein while making its sentencing decision.
{¶ 27} Othman maintains that the hospital records do not support the facts relied on by the trial court in its determination that Othman’s actions constituted the worst form of the offense.
{¶ 28} As noted by the majority, when imposing the maximum sentence the trial court described the physical and psychological harm suffered by the victim. The court made the following findings:
{¶ 29} “The damage to this girl’s rectum, to her vagina. She had a cut nipple. She had bruises on her body. She said that you guys put drugs into her, or your friends put drugs into her and you basically all gang raped her. * * * This victim has been diagnosed with post-traumatic stress syndrome. She was in Lakewood Hospital after an attempt to commit suicide as a result of what you guys did to her. So yes, this is one of the worst forms of the offense, and yes, I document that for the record.”
{¶ 30} It is true' that the record does not support all of the trial court’s findings regarding the extent of injuries suffered by the victim. First, the suicide attempt and psychological hospitalization referred to by the trial court occurred prior to the incident in question. Further, the record is silent as to any psychological diagnosis other than depression, from which the victim has suffered since the age of seven. Accordingly, the trial court erred in attributing these consequences to Othman’s actions.
{¶ 31} Next, although the medical report notes that the victim had microtears to her vagina, it also lists the condition of her vagina as “normal.” Further, the report notes that there were “no tears or abrasions” to her labia, hymen, anus, or rectum. Thus, the trial court erred in stating that these injuries existed.
{¶ 32} Nonetheless, the medical report does show that the victim had bruises and scrapes on her elbows, knees, back, thigh, and breast. The report also noted that the victim appeared distraught and tearful. Thus, there was evidence to support a finding that the victim suffered physical and psychological harm.
{¶ 33} The majority states that the trial court also described the circumstances of the assault to support her finding that Othman committed the worst form of the offense. However, the trial court unfortunately did not describe the circumstances of the offense, and it is these circumstances which support a finding that this was the worst form of the offense.
{¶ 34} The circumstances supporting the court’s finding are that the victim in this case was sixteen years old, she was highly intoxicated when taken to an apartment where several males took sexual advantage of her, and she suffered
*88 physical harm. Clearly, the circumstances of this case support the trial court’s finding that this was the worst form of the offense.
{¶ 35} Despite the factual errors made by the trial court during sentencing, sufficient reasons exist that support a finding that this was the worst form of the offense. Accordingly, I concur with the majority’s decision to affirm the trial court’s imposition of the maximum sentence.