[Cite as State v. Gallardo, 2024-Ohio-2942.]

IN THE COURT OF APPEALS OF OHIO

SIXTH APPELLATE DISTRICT

OTTAWA COUNTY

State of Ohio Court of Appeals No. OT-23-025

OT-23-026

Appellee

Trial Court No. 23 CR 007

 22 CR 134

v.

Joseph Gallardo DECISION AND JUDGMENT

Appellant Decided: August 2, 2024

* * * * *

James J. VanEerten, Ottawa County Prosecuting Attorney, and

Barbara Rivas and Alec Vogelpohl, Assistant Prosecuting 

Attorneys, for appellee.

Brian A. Smith, for appellant.

* * * * *

OSOWIK, J.

{¶ 1} This is a consolidated appeal of a July 14, 2023 judgment of the Ottawa 

County Court of Common Pleas, sentencing appellant to a 36-month term of 

incarceration on one count of failure to register his residential address as a sexual 

offender, in violation of R.C. 2950.05, a felony of the third degree, a 90-day term of 
2.

incarceration on each of six counts of voyeurism, in violation of R.C. 2907.08, 

misdemeanors of the second degree, a 36-month term of incarceration on one count of 

tampering with evidence, in violation of R.C. 2921.12, a felony of the third degree, with 

the voyeurism sentences ordered to be served concurrently with one another, and

concurrently with the tampering with evidence sentence, the aggregate of which was 

ordered to be served consecutively with the failure to register sentence, equaling a 72-

month term of incarceration, ordered to be served consecutively with the imposed 

balance of appellant’s terminated post-release control on a prior rape conviction, tallying

a total term of incarceration of nine years, four months, and 22 days.

{¶ 2} We note at the outset that appellant unconditionally acknowledges that the 

trial court made all requisite R.C. 2929.14(C)(4) statutory findings in support of the 

disputed consecutive sentencing in this case. Nevertheless, appellant argues in broad 

terms that the trial court incorrectly found that consecutive sentences were necessary to 

protect the public and were not disproportionate to the danger posed to the public. For 

the reasons set forth below, this court affirms the judgment of the trial court.

{¶ 3} Appellant, Joseph Gallardo, sets forth the following sole assignment of 

error:

“1. The trial court’s imposition of consecutive sentences * * * was not supported 

by the record.”
3.

{¶ 4} The following undisputed facts are relevant to this appeal. This case stems

from a series of sexual offenses committed by appellant, whose criminal history traces 

back to the 1980s, whose criminal offenses have consistently been sexual offenses and 

related offenses committed in the course of committing the sexual offenses, whose 

criminal offenses range from voyeurism to rape, and who has committed new sexual

offenses each time that he has been released on post-release control.

{¶ 5} In the context of these facts and circumstances, the Court Diagnostic & 

Treatment Center accordantly determined that appellant poses a high risk of both sexual 

offense of violence recidivism and general offense recidivism, thereby presenting a high 

risk of danger to the public if appellant was again released back into the community.

{¶ 6} The 2022 events underpinning this case involve several female neighbors of 

appellant’s mother in Port Clinton, where appellant had been staying when last released 

on post-release control for prior sex offenses. For several months, appellant engaged in 

ongoing surveillance of several neighbor women, surreptitiously recording them 

engaging in intimate activities. Shortly thereafter, appellant relocated to a different Port 

Clinton residence and failed to notify his probation officer in compliance with his sexual 

offender registration requirements. Appellant’s failure to register triggered an 

investigation. That investigation uncovered appellant’s unlawful acts underlying this 

case.
4.

{¶ 7} In the failure to register investigation, the officers secured a search warrant 

for appellant’s mobile phone. Subsequent forensic examination of appellant’s electronic 

device revealed that appellant had recently made multiple video recordings, and 

subsequently, unsuccessfully, attempted to permanently delete the incriminating

recordings. Review of the retrieved recordings showed that appellant had been secretly

monitoring and recording several female neighbors of his mother, making numerous

recordings of the women while they were alone inside of their homes, while they were in 

a state of undress, and while they engaged in private activities, such as using their 

bathrooms, showering, changing clothes, and masturbating. These covert recordings

were made on multiple occasions, ranging from April 2022, through June 2022. 

Appellant was out on post-release control on a prior rape conviction at the time of these 

events. Appellant would slip out of his mother’s home at night to lurk around

neighboring homes, awaiting opportunities to make the recordings.

{¶ 8} On January 11, 2023, following the conclusion of the investigation,

appellant was indicted on two counts of failure to provide notice of change in vehicle 

information, in violation of R.C. 2950.05, felonies of the first degree, one count of failure 

to register, in violation of R.C. 2950.05, a felony of the first degree, six counts of 

voyeurism, in violation of R.C. 2907.08, misdemeanors of the second degree, two counts 

of menacing by stalking, in violation of R.C. 2903.211, felonies of the fourth degree, two 

counts of tampering with evidence, in violation of R.C. 2921.12, felonies of the third 
5.

degree, six counts of breaking and entering, in violation of R.C. 2911.13, felonies of the 

fifth degree, one count of failure to provide notice of a change of address, in violation of 

R.C. 2950.05, a felony of the first degree, and appellant’s post-release control was 

unsuccessfully terminated.

{¶ 9} On April 27, 2023, pursuant to a negotiated plea agreement, appellant pled 

guilty to one count of failure to register, as amended to a felony of the third degree, in 

violation of R.C. 2950.05, six counts of voyeurism, in violation of R.C. 2907.08, 

misdemeanors of the second degree, and one count of tampering with evidence, in 

violation of R.C. 2921.12, a felony of the third degree. In exchange, the remainder of the

charges were dismissed.

{¶ 10} On July 14, 2023, appellant was sentenced. The trial court reviewed the 

report prepared by the Court Diagnostic & Treatment Center. The report noted that 

despite multiple, previous incarcerations and the provision of services designed to 

mitigate the risk of recidivism, appellant consistently reoffended, committing new sexual 

offenses within a short time upon each release back into the community. The report 

determined to a reasonable degree of psychological certainty that appellant poses a high 

risk of recidivism of sexual offenses, including sexual offenses of violence, and general 

offenses, if released back into the community. In conjunction, the report determined to a 

reasonable degree of psychological certainty that appellant has demonstrated a persistent
6.

lack of responsiveness to all past treatment and is unlikely to respond to treatment in this

case.

{¶ 11} The trial court next heard the testimony of one of the victims. The victim, 

who lives in immediate proximity to appellant’s mother, had been secretly recorded by 

appellant while alone inside of her home, including appellant recording her using her 

bathroom, showering, and masturbating. 

{¶ 12} The victim testified that she and her husband had moved into their home 

shortly before this incident. The victim stated that appellant’s mother had disclosed to 

her that he had recently been released from prison. The victim had been nonjudgmental 

in response to that disclosure. The victim conveyed,

She [appellant’s mother] said, oh, [appellant] just got out of prison. But 

I’m hoping he’s going to move away * * * I didn’t have any details. I didn’t 

really care because it’s not my place to be in his business * * * I, 

unfortunately, was naïve * * * I assumed [that] after you serve many years 

in prison, that maybe, [that] maybe [the person would] change. But that 

[was] not the case * * * In December, on my husband’s birthday, a 

prosecutor and detective came to our house and informed us what happened 

* * * [Appellant] robbed us of our peace of mind * * * There were many 

nights that my husband and I couldn’t sleep because we were just so 

disgusted with what had taken place. And he robbed me of what I thought 
7.

would have been a personal, intimate moment, alone in my house * * * I 

think he’s sick. And it just makes me sick now that I still have to think 

about those moments and I can’t get that back. I can’t erase what I know 

or what he saw. (Emphasis added). 

{¶ 13} Following the victim’s testimony, appellee summarized appellant’s lengthy

sexual offense criminal history, including dozens of voyeurism and peeping offenses, as 

well as multiple rape convictions. Appellee then noted that appellant had received sexual 

offender treatment on multiple past occasions, yet committed new sexual offenses within 

months of each past release, including the commission of two rapes, on January 18 and 

February 4, 2004, respectively, after being released and placed on post-release control on 

May 1, 2003.

{¶ 14} Appellee further noted that over the course of appellant’s years of 

involvement in the criminal justice system, evaluations of appellant have consistently 

found him to be a chronic reoffender, in addition to being a classified sexual predator 

based upon the multiple prior rape convictions. Appellee concluded, 

The defendant should be sentenced to prison. The state believes that 

consecutive sentences are necessary to protect the public from future crime 

by the defendant given his criminal history and to punish him. Consecutive 

sentences are not disproportionate to the seriousness of his conduct and the 

danger that he poses to the public * * * These offenses were committed 
8.

while the defendant was [out] again on post-release control * * * The 

Defendant was released from prison in December of 2021. While still on 

post-release control, and within seven months after his release, the 

Defendant didn’t just commit one sexually-oriented offense. He committed 

six [sexually-oriented offenses].

{¶ 15} Counsel for appellant acknowledged, “It is true that [appellant] has been 

through a number of sex offender training programs. Unfortunately, these programs 

don’t appear to be enough * * * I’m asking for the consideration of an alternative [to 

incarceration].” 

{¶ 16} Appellant next testified to the trial court on his own behalf. Appellant 

stated, 

I’d like to apologize to the victim[s] * * * for invading [their] privacy and 

violating what you thought was a safe place in your home * * * I was wrong for what I 

did * * * I took something from you when I did that * * * I take full responsibility for 

what I did. There’s no excuse for what I did * * * I’m here today to, to ask for, for some 

help for chance to change. (Emphasis added).

{¶ 17} The court next reviewed in detail all requisite statutory principles and

findings. The court ultimately held, in relevant part, “The court finds that consecutive 

sentencing 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 
9.

offender’s conduct and the danger the offender poses to the public.” Appellant was then 

sentenced to a total term of incarceration of nine years, four months, and 22 days. This 

appeal ensued. 

{¶ 18} In the sole assignment of error, appellant claims that the record of evidence 

does not support the trial court’s imposition of consecutive sentences in this case. 

Appellant broadly asserts that, “The record demonstrates that consecutive sentences were 

not necessary to protect the public from future crime or to punish the offender, and they 

were disproportionate to the * * * danger the offender poses to the public.” 

{¶ 19} In primary support of this position, appellant cites to his completion of sex 

offender treatment programs on two past occasions, his participation in alternative 

treatment programs in connection to past sex offenses, his expression of remorse in this 

case, and his recent history of gainful employment.

{¶ 20} Under R.C. 2929.14(C)(4), when a trial court imposes multiple prison 

terms for convictions of multiple offenses, it may require the offender to serve the prison 

terms consecutively if it finds that consecutive sentences are necessary to protect the 

public from future crime or to punish the offender and if 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 it 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 
10.

pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was 

under post-release control for 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.

{¶ 21} We reiterate that appellant concedes that, “The trial court made the required 

findings to impose consecutive sentences under R.C. 2929.14(C)(4), both at the 

sentencing hearing and in its sentencing entry.” 

{¶ 22} As this court recently held in State v. Bickerstaff, 6th Dist. Lucas Nos. L23-1013, L-23-1147, 2024-Ohio-871, ¶ 19-20, another case in which the appellant 

likewise broadly disputed the trial court’s consecutive sentencing determination that the 

appellant presented a danger to the public,

Recently, the Supreme Court firmly pronounced that the plain language of 

R.C. 2953.08(G(2) requires an appellate court to defer to a trial court’s 

consecutive sentence findings, and a trial court’s findings must be upheld 

unless those findings are clearly and convincingly not supported by the 
11.

record. State v. Gwynne, Slip Opinion No. 2023-Ohio-3851, ¶ 4-5. The 

court also emphasized that the statutory language does not require that the 

appellate court have a firm belief or conviction that the record supports the 

findings. The clear and convincing standard for appellate review in R.C. 

2953.08(G)(2) is written in the negative. Id. at ¶ 12-15. We have reviewed 

the record and do not find the trial court’s consecutive sentence findings are 

clearly and convincingly not supported by the record under R.C. 

2953.08(G)(2).

{¶ 23} As encapsulated by the Ohio Supreme Court in State v. Jones, Slip 

Opinion No. 2024-Ohio-1083, ¶ 13, 

R.C. 2953.08(G) permits an appellate court to increase, reduce, 

otherwise modify, or vacate a sentence only if it clearly and 

convincingly finds that the record does not support the sentencing 

court’s findings or that the sentence is otherwise contrary to law. 

R.C. 2953.08(G)(2); see also State v. Marcum, 146 Ohio St.3d 516, 

2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22. The standard to be applied 

is the standard set forth in the statute: an appellate court has the 

authority to increase , reduce, otherwise modify or vacate a sentence 

only after it has reviewed the entire trial-court record and clearly and 

convincingly found either * * * [t]hat the record does not support the 
12.

sentencing court’s findings under [certain statutes] or [t]hat the 

sentence is otherwise contrary to law. R.C. 2953.08(G)(2). 

{¶ 24} In conjunction, as pertains to appellant’s additional R.C. 2929.11(A) claim 

that the disputed sentence imposes an unnecessary burden on government resources, as 

recently set forth by this court in State v. Eames, 6th Dist. Wood Nos. WD-23-023, 2024-

Ohio-183, ¶ 10, 

However, since the Ohio Supreme Court decided Jones, the law governing 

appellate review of a trial court’s consideration of R.C. 2929.11 and 

2929.12 in imposing sentences is clear: 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. 

Bowles, 2021-Ohio-4401, 181 N.E.3d 1226, ¶ 7 (6th Dist.), quoting Jones

at ¶ 42; see also, e.g., State v. Johnson, 6th Dist. Wood No. WD-20-056, 

2021-Ohio-2139, ¶14, citing State v. Orzechowski, 6th Dist. Wood No. 

WD-20-029, 2021-Ohio-985, ¶ 10.

{¶ 25} Lastly, as pertains to the potential need for consideration of the impact of 

the trial court’s sentencing decision upon appellant’s aggregate sentence, as recently held 

in State v. Polizzi, ¶ 8 (11th Dist.), “In its October 2023 [Gwynne] decision, the Supreme 

Court, by way of a plurality decision, determined * * * R.C. 2929.14(C)(4) does not 
13.

require express consideration of the aggregate prison term that eventuates from the 

imposition of consecutive sentences.”

{¶ 26} We have carefully reviewed and considered this matter. The record

irrefutably shows that appellant, who possesses a lengthy and persistent pattern of sexual 

offense convictions, incarceration, and sexual offense recidivism shortly after release,

despite the completion of multiple sexual offender treatment programs and the provision 

of other indicated services, while out on post-release control for a prior rape conviction,

covertly spied on multiple female neighbors while they were alone inside of their homes. 

Appellant secretly recorded them in a state of undress, while they were engaged in

various private activities, including showering and masturbation, on numerous occasions 

from April, 2022 through June, 2022. In conjunction, following these actions, appellant

relocated to a different residence without complying with sexual offender registration 

requirements, began driving a different vehicle without complying with sexual offender 

registration requirements, attempted to delete and destroy the incriminating video

recordings, and lastly, appellant wholly acknowledges these actions. This pattern has 

recurred since the 1980s, regardless of appellant’s participation in sexual offender 

treatment programs and alternative treatment programs ordered in prior cases.

{¶ 27} We find appellant’s general, unsupported claim that the record of evidence 

did not support the trial court’s determination that consecutive sentences were necessary 

to protect the public from future crime, and that they were disproportionate to the danger 
14.

posed to the public, to be unpersuasive. Appellant’s above-detailed 2022 criminal 

actions, done while appellant was out on post-release control for a rape conviction,

clearly demonstrate otherwise.

{¶ 28} Based upon the foregoing, we do not find that the disputed trial court 

consecutive sentence findings are clearly and convincingly not supported by the record 

under R.C. 2953.08(G)(2). Accordingly, appellant’s assignment of error is found not 

well-taken.

{¶ 29} Wherefore, the judgment of the Ottawa County Court of Common Pleas is 

hereby affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 

24.

Judgment affirmed.

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

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

Thomas J. Osowik, J. ____________________________

 JUDGE

Christine E. Mayle, J. 

____________________________

Gene A. Zmuda, 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/.