[Cite as State v. Besteder, 2014-Ohio-3760.]

IN THE COURT OF APPEALS OF OHIO 

SIXTH APPELLATE DISTRICT 

 LUCAS COUNTY 

State of Ohio Court of Appeals No. L-13-1257 

 

 Appellee Trial Court No. CR0201301858 

v. 

Benjamin Besteder DECISION AND JUDGMENT

Appellant Decided: August 29, 2014 

* * * * * 

 Julia R. Bates, Lucas County Prosecuting Attorney, and 

 Lindsay D. Navarre, Assistant Prosecuting Attorney, for appellee. 

 Ernest E. Bollinger, for appellant. 

* * * * * 

 YARBROUGH, P.J. 

I. Introduction 

{¶ 1} Appellant, Benjamin Besteder, appeals the judgment of the Lucas County 

Court of Common Pleas, imposing a prison sentence of 37 years following a jury’s 

determination of guilt. We affirm. 
2.

A. Facts and Procedural Background 

{¶ 2} On June 3, 2013, appellant was indicted on one count of discharging a 

firearm upon or over a public road or highway in violation of R.C. 2923.162(A)(3) and 

(C)(3), three counts of felonious assault in violation of R.C. 2903.11(A)(2), and one 

count of participating in a criminal gang in violation of R.C. 2923.42(A) and (B), all of 

which are felonies of the second degree. Additionally, specifications for discharging a 

firearm from a motor vehicle in violation of R.C. 2941.146 were attached to all counts 

except participating in a criminal gang. The charges stemmed from a drive-by shooting 

that occurred on May 25, 2013, at a softball field adjacent to Robinson Junior High 

School in Toledo. 

{¶ 3} At his arraignment, appellant entered a plea of not guilty, and the matter 

proceeded through pretrial. A jury trial was eventually conducted over a three-day period 

beginning on October 7, 2013. At the conclusion of the trial, the jury found appellant 

guilty of all counts and specifications, with the exception of participating in a criminal 

gang, which was dismissed by the state. The matter was continued for sentencing and a 

presentence investigation report was ordered. 

{¶ 4} A sentencing hearing was subsequently held on October 29, 2013. At the 

hearing, the court sentenced appellant to a prison term of eight years as to each of the 

four counts for which he was found guilty, to be served consecutively. Additionally, the 

court imposed a mandatory five-year consecutive sentence for each specification. The 

court then ordered the specifications merged for a single 5-year consecutive sentence. 
3.

When aggregated, the sentences imposed by the court amounted to a prison term of 37 

years. It is from this judgment that appellant has filed his timely notice of appeal. 

B. Assignment of Error

{¶ 5} In his appeal, appellant assigns the following error for our review: 

 THE COURT ERRED IN ORDERING MAXIMUM SENTENCES 

AND ORDERING THEM TO BE SERVED CONSECUTIVELY. 

II. Analysis 

{¶ 6} In his sole assignment of error, appellant argues that the trial court erred in 

its imposition of sentence. Specifically, he argues that the sentence he received was 

inconsistent with sentences previously imposed in similar cases involving similar crimes, 

in violation of R.C. 2929.11(B). “When a sentence is objected to and alleged to be 

inconsistent with other sentences, what is truly being contested is whether the sentence is 

supported by the record.” State v. Lathan, 6th Dist. Lucas No. L-03-1188, 2004-Ohio7074, ¶ 26, reversed in part on other grounds on reconsideration, 2005-Ohio-321. 

{¶ 7} We review felony sentences using the standard of review set forth in R.C. 

2953.08. State v. Banks, 6th Dist. Lucas No. L-13-1095, 2014-Ohio-1000, ¶ 10. Under 

R.C. 2953.08(G)(2), we may either increase, reduce, or otherwise modify a sentence, or 

vacate the sentence and remand the matter for resentencing where we clearly and 

convincingly find that either the record does not support the sentencing court’s findings 

under R.C. 2929.13(B) or (D), 2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence 

is otherwise contrary to law. 
4.

{¶ 8} R.C. 2929.11(B) provides: 

 (B) A sentence imposed for a felony shall be reasonably calculated 

to achieve the two overriding purposes of felony sentencing set forth in 

division (A) of this section, commensurate with and not demeaning to the 

seriousness of the offender’s conduct and its impact upon the victim, and 

consistent with sentences imposed for similar crimes committed by similar 

offenders. 

{¶ 9} In support of his contention that he received an excessive sentence relative 

to prior sentences that have been imposed for similar crimes, appellant cites a 2012 case 

styled State v. Johnson from the Lucas County Court of Common Pleas (CR201202149) 

where the defendant was convicted on three counts of felonious assault for shooting two 

individuals and spraying an individual with mace. In that case, the defendant was 

ordered to serve six years in prison. Asserting that his case is similar, appellant argues 

that he should have received a similar sentence. 

{¶ 10} Regarding the similarity between the two cases, appellant acknowledges 

that Johnson did not involve a drive-by shooting. Rather, appellant argues that his case is 

less serious in that “in State v. Johnson, the shots were aimed directly at the intended 

victims, while in the case at bar, the shots were randomly fired from a moving vehicle, 

and not even the victim believed he was a target.” Appellant fails to mention that his 

“random” shots were fired into a crowd of approximately 100 people, any one of whom 

could have been seriously injured or killed. Moreover, appellant admits that he was on 
5.

community control when he committed the crimes at issue, whereas the defendant in 

Johnson was not on community control when his crimes were committed. Additionally, 

while the defendant in Johnson was convicted on two counts of felonious assault, 

appellant was sentenced following conviction on four such counts. Thus, appellant’s 

consistency argument is without merit. 

{¶ 11} We also note that appellant has failed to direct our attention to any 

deficiencies on the part of the trial court to consider the statutory guidelines or sentencing 

factors. Rather, the record demonstrates that the trial court considered the purposes and 

principles of felony sentencing. Indeed, the court stated in its sentencing entry that it 

“considered the record, oral statements, any victim impact statement and presentence 

report prepared, as well as the principles and purposes of sentencing under R.C. 2929.11, 

and has balanced the seriousness and recidivism factors under R.C. 2929.12.” 

Consequently, we conclude that the trial court’s sentence is not contrary to law. 

{¶ 12} Accordingly, appellant’s sole assignment of error is not well-taken. 

III. Conclusion 

{¶ 13} For the reasons stated above, the judgment of the Lucas County Court of 

Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant 

to App.R. 24. 

Judgment affirmed. 
6.

 State v. Besteder 

 C.A. No. L-13-1257 

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. 

See also 6th Dist.Loc.App.R. 4. 

Arlene Singer, J. _______________________________ 

JUDGE 

Thomas J. Osowik, J. 

_______________________________ 

Stephen A. Yarbrough, 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.sconet.state.oh.us/rod/newpdf/?source=6.