State v. Mockensturm

[Cite as State v. Mockensturm, 2021-Ohio-881.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio Court of Appeals Nos. WD-20-007
WD-20-008
Appellee
Trial Court Nos. 2019CR0115
v. 2018CR0535
Brianna Mockensturm DECISION AND JUDGMENT
Appellant Decided: March 19, 2021
*****
Paul A. Dobson, Wood County Prosecuting Attorney, and
David T. Harold, Assistant Prosecuting Attorney, for appellee.
W. Alex Smith, for appellant.
*****
MAYLE, J.
{¶ 1} In this consolidated appeal, appellant, Brianna Mockensturm, appeals the
July 26, 2019 judgment of the Wood County Court of Common Pleas, sentencing her to
an aggregate prison term of 16 years following her conviction on two counts of
involuntary manslaughter. For the reasons that follow, we affirm the judgment of the
trial court.
{¶ 2} This is a consolidated appeal involving two cases—case No. 2018CR0535
and case No. 2019CR0115—from the Wood County Court of Common Pleas.
Mockensturm was convicted of one count of involuntary manslaughter in each case. The
events underlying case No. 2019CR0115 occurred before the events underlying case No.
2018CR0535.
{¶ 3} A.V. is the victim in case No. 2019CR0115. In 2018, A.V. was enrolled in
treatment at a drug rehabilitation center. While he was there, Mockensturm sent him
texts and Facebook messages encouraging him to leave rehab and start using drugs again.
After approximately 100 days of treatment, Mockensturm convinced A.V. to leave and
move back in with his family. He left treatment on or about June 5, 2018.
{¶ 4} That same day, Mockensturm and J.P.—Mockensturm’s boyfriend and the
victim in case No. 2018CR0535—went to visit A.V. at his family’s apartment in Bowling
Green, Ohio. Mockensturm and A.V. spent approximately one-half hour alone in his
room while J.P. waited on the porch. Mockensturm and J.P. eventually left. The next
morning, A.V.’s brother—who came home to congratulate A.V. on his drug treatment—
found A.V. dead in his bedroom, along with a bag of drugs in his pocket that contained a
mixture of heroin and fentanyl. Mockensturm denied that she gave A.V. the drugs. J.P.,
however, admitted that he and Mockensturm had purchased heroin just before they went
to visit A.V. The coroner determined A.V. died as a result of an overdose of fentanyl and
norfentanyl.
2.
{¶ 5} On September 28, 2018—approximately three months after A.V. died—J.P.
died from a drug overdose. J.P. was found dead with a syringe in his hand in a bathroom
of Toledo Mold & Die—where Mockensturm worked—along with a McDonald’s receipt
from earlier that day. The state obtained the security video from the McDonald’s
restaurant located in Bowling Green, Ohio, for that particular purchase, and saw that
Mockensturm had purchased the food reflected on the receipt. Through testing, the state
confirmed that the receipt was used as a fold for the same mixture of heroin and fentanyl
that was found in J.P.’s blood.
{¶ 6} According to surveillance video obtained from Toledo Mold & Die from the
previous day, Mockensturm and J.P. met outside the building and sat under an awning
where they were not visible to video cameras. J.P. later entered a bathroom inside the
building. His body was discovered the following morning. The coroner determined his
cause of death to be an accidental overdose of heroin and fentanyl. Mockensturm’s DNA
was found on the syringe.
{¶ 7} According to texts and Facebook messages between Mockensturm and J.P.,
Mockensturm regularly traveled to Toledo, Ohio, to purchase drugs that she sold to
others—including J.P. The messages demonstrate that J.P. purchased heroin from
Mockensturm the day before his body was discovered.
{¶ 8} On November 21, 2018, Mockensturm was indicted in case No.
2018CR0535—relating to victim J.P.—with the following charges: two counts of
trafficking in heroin in violation of R.C. 2925.03(A)(1) and (C)(6)(a), each a fifth-degree
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felony; one count of aggravated trafficking in drugs in violation of R.C. 2925.03(A)(1)
and (C)(1)(a), a fourth-degree felony; one count of corrupting another with drugs in
violation of R.C. 2925.02(A)(3) and (C)(1), a second-degree felony; one count of reckless
homicide in violation of R.C. 2903.041(A) and (B), a third-degree felony; and one count
of involuntary manslaughter in violation of R.C. 2903.04(A) and (C), a first-degree
felony. Mockensturm appeared for her arraignment on December 13, 2018, and entered
a not guilty plea to all six counts.
{¶ 9} On March 21, 2019, Mockensturm was indicted in case No. 2019CR0115—
relating to victim A.V.—with the following charges: one count of possession of criminal
tools in violation of R.C. 2923.24(A) and (C), a fifth-degree felony; one count of
corrupting another with drugs in violation of R.C. 2925.02(A)(3) and (C)(1), a second-
degree felony; one count of reckless homicide in violation of R.C. 2903.041(A) and (B),
a third-degree felony; and one count of involuntary manslaughter in violation of R.C.
2903.04(A) and (C), a first-degree felony. Each count included a forfeiture specification
pursuant to R.C. 2941.1417(A). Mockensturm appeared for her arraignment on April 8,
2019, and entered a not guilty plea to all four counts.
{¶ 10} Following negotiations with the state, Mockensturm appeared for a change
of plea hearing on June 10, 2019. Pursuant to a plea agreement, Mockensturm agreed to
enter a guilty plea to the involuntary manslaughter count in each case. In exchange for
her guilty plea, the state agreed to request dismissal of all other counts. The trial court
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accepted Mockensturm’s guilty plea and ordered her to participate in a presentencing
investigation.
{¶ 11} Mockensturm appeared for sentencing on July 22, 2019. The trial court
imposed an eight-year prison term on each of Mockensturm’s involuntary manslaughter
convictions. The prison terms were ordered to be served consecutively resulting in an
aggregate sixteen-year prison term. The trial court dismissed all remaining counts in both
cases at the state’s request. Mockensturm’s sentence was journalized on July 26, 2019.
Mockensturm timely appealed the judgment in each case. On March 26, we ordered the
appeals to be consolidated and Mockensturm now asserts the following errors for our
review:
1. Appellant was sentenced contrary to the overriding purposes of felony
sentencing in R.C. 2929.11.
2. Appellant was sentenced to consecutive sentences contrary to R.C.
2929.14.
II. Law and Analysis
{¶ 12} We review felony sentences under R.C. 2953.08(G)(2). State v. Goings,
6th Dist. Lucas No. L-13-1103, 2014-Ohio-2322, ¶ 20. We may increase, modify, or
vacate and remand a trial court’s imposition of consecutive sentences only if we clearly
and convincingly find that: (1) “the record does not support the sentencing court’s
findings under division * * * (C)(4) of section 2929.14, * * *” or (2) “the sentence is
otherwise contrary to law.” Id., citing R.C. 2953.08(G)(2). In State v. Tammerine, 6th
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Dist. Lucas No. L-13-1081, 2014-Ohio- 425, ¶ 15, we recognized that a sentence is not
clearly and convincingly contrary to law for purposes of R.C. 2953.08(G)(2)(b) where the
trial court has considered the purposes and principles of sentencing in R.C. 2929.11 and
the seriousness and recidivism factors listed in R.C. 2929.12, properly applied postrelease
control, and sentenced the defendant within the statutorily-permissible range.
{¶ 13} The burden is on the appellant to identify clear and convincing evidence in
the record that their sentence was erroneously imposed. State v. Torres, 6th Dist. Ottawa
No. OT-18-008, 2019-Ohio-434, ¶ 6.
A. Mockensturm’s sentences are not contrary to law.
{¶ 14} In her first assignment of error, Mockensturm argues that the trial court
failed to comply with the overriding purposes of felony sentencing because her individual
eight-year sentences, as well as her “total 16 year sentence,” are not the “minimum
sanctions” that would satisfy the purposes of felony sentencing under R.C. 2929.11, and
because her sentence is not consistent with that of her codefendant, who she says “was
sentenced to a mere 2 years in prison for F2 corrupting another with drugs.”
{¶ 15} To the extent that Mockensturm is attempting to challenge the overall
length of her aggregate 16-year sentence under R.C. 2929.11, the Supreme Court of Ohio
has clarified that R.C. 2929.11 and 2929.12 do not apply to consecutive-sentencing
review. State v. Gwynn, 158 Ohio St.3d 279, 2019-Ohio-4761, 141 N.E.3d 169, ¶ 17.
Rather, appellate review of consecutive sentences is limited to R.C. 2929.14(C)(4), as
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stated in R.C. 2953.08(G)(2)(a). Id. Accordingly, we cannot review the aggregate length
of Mockensturm’s consecutive sentences under R.C. 2929.11.
{¶ 16} Mockensturm also argues that her individual eight-year sentences are
contrary R.C. 2929.11, because they are not the “minimum sanctions” that would satisfy
the purposes of felony sentencing. More specifically, Mockensturm argues that she could
be effectively rehabilitated with a shorter sentence and, therefore, an eight-year sentence
is an unnecessary burden on government resources. Essentially, Mockensturm is inviting
this court to make an independent determination as to whether the record supports her
eight-year sentences under R.C. 2929.11 and 2929.12—which we cannot do. Although
trial courts are obligated to consider the R.C. 2929.11 purposes of felony sentencing and
the R.C. 2929.12 seriousness and recidivism factors when imposing felony sentences,
R.C. 2953.08(G)(2) does not permit an “appellate court to independently weigh the
evidence in the record and substitute its judgment for that of the trial court concerning the
sentence that best reflects compliance with R.C. 2929.11 and 2929.12.” State v. Jones,
Slip Opinion No. 2020-Ohio-6729, ¶ 42. Accordingly, Mockensturm’s argument is
without merit.
{¶ 17} Lastly, Mockensturm argues that her sentence is inconsistent with that of
her codefendant who received a two-year prison term for a lesser-degree felony.
“‘Consistency’ is a consideration under R.C. 2929.11(B), and relates to the offender’s
sentence as compared to that of similarly-situated offenders.” State v. Rombkowski, 6th
Dist. Lucas No. L-18-1092, 2019-Ohio-2650, ¶ 12. Although the trial court did not make
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a specific finding that Mockensturm’s sentence is consistent with that of her codefendant,
“neither R.C. 2929.11 nor 2929.12 requires a trial court to make any specific factual
findings on the record.” Jones at ¶ 20. In fact, the trial court’s consideration of the
factors set forth in R.C. 2929.11 and 2929.12 is presumed even on a silent record. State
v. Clinton, 153 Ohio St.3d 422, 2017-Ohio-9423, 108 N.E.3d 1; State v. Cyrus, 63 Ohio
St.3d 164, 166, 586 N.E.2d 94 (1992). We therefore presume that the trial court properly
considered whether Mockensturm’s sentences are “consistent with sentences imposed for
similar crimes committed by similar offenders” under R.C. 2929.11(B), and we cannot
substitute our judgment for that of the trial court. Jones at ¶ 39.
{¶ 18} In sum, Mockensturm has failed to identify clear and convincing evidence
that her sentence is contrary to law. The errors that she alleges the trial court committed
in its consideration of the R.C. 2929.11 purposes of felony sentencing are not subject to
our review under R.C. 2953.08(G)(2) and her first assignment of error is found not well-
taken.
B. The record supports the trial court’s imposition of consecutive sentences.
{¶ 19} In her second assignment of error, Mockensturm argues that her
consecutive sentences are contrary to law because the record does not support the trial
court’s findings under R.C. 2929.14(C)(4). Specifically, she argues that because the
victims both died, they could not have suffered great or unusual harm as described in
R.C. 2929.14(C)(4)(b).
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{¶ 20} R.C. 2929.14(C)(4) provides as follows:
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:
(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.
9.
{¶ 21} The statute requires the trial court to make three statutory findings before
imposing consecutive sentences. State v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-493,
108 N.E.3d 1028, ¶ 252; State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16
N.E.3d 659, ¶ 26. The court must find that (1) consecutive sentences are necessary to
protect the public from future crime or to punish the offender; (2) consecutive sentences
are not disproportionate to the seriousness of the offender’s conduct and to the danger
that the offender poses to the public; and (3) R.C. 2929.14(C)(4)(a), (b), or (c) is
applicable. Beasley at ¶ 252. “[T]he trial court must make the requisite findings both at
the sentencing hearing and in the sentencing entry.” (Emphasis in original.) Id. at ¶ 253,
citing Bonnell at ¶ 37. A trial court’s failure to make the necessary findings under R.C.
2929.14(C)(4) renders the imposition of consecutive sentences contrary to law. See
Bonnell at ¶ 37; State v. Kubat, 6th Dist. Sandusky No. S-13-046, 2015-Ohio-4062, ¶ 35.
{¶ 22} Although a trial court must make the findings required by R.C.
2929.14(C)(4), it does not need to explicitly reference the precise language of the statute.
“The focus should be on whether the trial court performed the required analysis and made
appropriate conclusions, not on whether it can read the statute into the record.” See State
v. Gessell, 6th Dist. Williams No. WM-19-004, 2020-Ohio-403, ¶ 12, citing State v.
Polhamus, 2d Dist. Miami No. 2013-CA-3, 2014-Ohio-145, ¶ 30. For that reason, “a
word-for-word recitation of the language of the statute is not required.” Bonnell at ¶ 29.
Instead, we must be able to discern that the trial court engaged in the correct analysis and
the record must contain evidence to support the trial court’s findings. Id. Moreover,
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“[w]hile the sentencing court is required to make findings under R.C. 2929.14(C)(4)
before imposing consecutive sentences, it is not required to give reasons explaining
the findings.” State v. Green, 6th Dist. Sandusky No. S-16-010, 2017-Ohio-45, ¶11.
{¶ 23} Here, although the trial court did not explicitly reference R.C. 2929.14(C)(4),
it made all three findings at sentencing and in its judgment entry. Indeed, Mockensturm
does not dispute that the necessary findings were made. Rather, Mockensturm’s only
argument against the imposition of consecutive sentences is that the victims suffered death,
and death cannot be “great or unusual harm” under R.C. 2929.14(C) because it is an
element of involuntary manslaughter. Other than that single argument, Mockensturm fails
to cite any evidence in the record to show that the trial court’s imposition of consecutive
sentences was not supported by the record.
{¶ 24} We have reviewed the record to determine whether the record supports the
trial court’s findings under R.C. 2929.14(C)—including the finding of “great or unusual
harm”—and we find that it does.
{¶ 25} As the trial court noted, Mockensturm demonstrated a pattern of drug abuse
and participated in organized criminal activity by trafficking drugs and, ultimately, by
providing drugs that ultimately killed two people. Mockensturm sold these drugs to both
victims despite being aware of their drug abuse issues and, as the trial court recognized,
Mockensturm used her relationship with the victims to facilitate these offenses. Indeed,
Mockensturm coaxed A.V. out of rehab and then supplied him with a fatal dose of heroin
and fentanyl on the day he was released from treatment. A.V.’s family believed that his
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drug treatment would have been successful if Mockensturm had not encouraged him to
leave rehab and start using again. And—barely three months after Mockensturm
provided the lethal drugs to A.V.—Mockensturm, once again, provided lethal drugs to
another victim, J.P., who was found dead on the floor of a restroom. As J.P.’s father
testified at the sentencing hearing, Mockensturm’s conduct shows a complete lack of
remorse. As the trial court stated, Mockensturm’s conduct is “insidious.”
{¶ 26} We find that this record fully supports the trial court’s findings under R.C.
2929.14(C)(4).
{¶ 27} Given that the trial court made all three of the necessary findings under
R.C. 2929.14(C)(4), and those findings are supported by the record, we find that the trial
court did not err in ordering Mockensturm to serve her sentences consecutively.
Accordingly, Mockensturm’s second assignment of error is not well-taken.
III. Conclusion
{¶ 28} We find both of Mockensturm’s assignments of error not well-taken. We,
therefore, affirm the July 26, 2019 judgment of the Wood County Court of Common
Pleas. Mockensturm is ordered to pay the costs of this appeal pursuant to App.R.24.
Judgment affirmed.
12.
State v. Mockensturm
C.A. Nos. WD-20-007
WD-20-008
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Christine E. Mayle, J.
_______________________________
Gene A. Zmuda, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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