[Cite as State v. Bell, 2024-Ohio-1502.]

IN THE COURT OF APPEALS OF OHIO

FOURTH APPELLATE DISTRICT

ADAMS COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. 22CA1160

v. :

CHERITH BELL aka GAPI, : DECISION AND JUDGMENT ENTRY 

Defendant-Appellant. :

_________________________________________________________________

APPEARANCES:

Christopher Pagan, Middletown, Ohio, for appellant1. 

Aaron E. Haslam, Adams County Prosecuting Attorney, West Union, 

Ohio, for appellee. 

___________________________________________________________________

CRIMINAL APPEAL FROM COMMON PLEAS COURT

DATE JOURNALIZED:4-12-24

ABELE, J.

{¶1} This is an appeal from an Adams County Common Pleas Court 

judgment of conviction and sentence. Cherith Bell, aka Gapi, 

defendant below and appellant herein, entered a guilty plea to 

pandering sexually oriented matter involving a minor. 

{¶2} Appellant assigns three errors for review: 

1 Different counsel represented appellant during the trial

court proceedings.
ADAMS, 22CA1160 2

FIRST ASSIGNMENT OF ERROR:

“BELL’S CONVICTION WAS UNCONSTITUTIONAL BECAUSE 

SHE RECEIVED INEFFECTIVE ASSISTANCE [IAC] AT 

THE PLEA PROCEEDING.”

SECOND ASSIGNMENT OF ERROR:

“BELL’S CONVICTION WAS UNCONSTITUTIONAL UNDER 

DUE PROCESS BECAUSE HER PLEA WAS NOT KNOWING, 

INTELLIGENT, OR VOLUNTARY.”

THIRD ASSIGNMENT OF ERROR:

“BELL’S PRISON SANCTION WAS CONTRARY TO LAW.”

{¶3} Appellant and her late husband, Mizael Gapi, engaged in 

and recorded sexual activity with a 14-year-old victim and 

published the video to the victim. After her husband entered a 

guilty plea to pandering sexually oriented matter involving a minor 

in violation of R.C. 2907.322(A)(1), the trial court sentenced him 

to serve an indefinite stated term of 8 to 12 years in prison. 

During his incarceration, Gapi took his own life. 

{¶4} An Adams County Grand Jury also returned an indictment 

that charged appellant with (1) one count of pandering sexually 

oriented matter involving a minor in violation of R.C. 

2907.322(A)(1), a second-degree felony, and (2) one count of 

disseminating matter harmful to juveniles with the finding that the 

material or performance involved is obscene in violation of R.C. 

2907.31(A)(1), a fifth-degree felony. Appellant entered not guilty 

pleas.
ADAMS, 22CA1160 3

{¶5} Subsequently, appellant asked to set the matter for a 

plea hearing. At the hearing appellant acknowledged that she and 

her late husband engaged in sexual activity with a 14-year-old 

female. Appellant stated that she “thought she was 16, almost 17.” 

In addition, appellant stated that she intentionally recorded and 

published the sex videos to the victim. The trial court reviewed 

the plea agreement, item by item, and explained the consequences of 

a guilty plea, the maximum sentence, post-release control 

consequences, sex offender registration requirements, financial 

sanctions, and all rights appellant would waive. Appellant then 

entered a guilty plea to pandering sexually oriented matter 

involving a minor in violation of R.C. 2907.322(A)(1), a seconddegree felony. The state dismissed count two of the indictment. 

{¶6} At the sentencing hearing, the trial court also 

acknowledged that it reviewed the pre-sentence investigation 

report, the victim impact statements, and a summary of the presentence investigation report. The victim’s mother spoke about the 

severe impact on her daughter and family’s lives, along with 

appellant and her father. The court observed that appellant “had 

oral, vaginal * * * sex * * * with the victim and the victim 

performed * * * oral vaginal sex on * * * appellant,” and appellant 

and her late husband “took video recordings of the encounters.” 

{¶7} The trial court stated that, although appellant had shown 

“some genuine remorse” and stated that she “had no intention of 
ADAMS, 22CA1160 4

doing what [she] did,” the court noted “the inherent problem with 

that statement is that there was a lot of calculations, curfews, 

house arrest contacts in order to effectuate this encounter.” The 

court acknowledged that this case is a case that “keeps Judges up” 

to balance the victims’ statements and the appellant’s family’s 

statements. Nevertheless, the court concluded, “there are times 

when people do things so outlandish, so misguided, malicious, 

undeserving, and that’s our world now somehow justified the things 

that people attempt to do, in this case, you effectuated it.” The 

court further noted that the victim could not be restored, nor 

could the court assist the desires of the appellant’s father, who 

“is a good man and loves his daughter.” However, the court pointed 

out, “there must be punishment and in, in this court’s opinion it 

must be harsh for the act some people when they do things beyond 

the pale of comprehension.” 

{¶8} The trial court then sentenced appellant to (1) serve an 

indefinite stated term of 7 to 10 1⁄2 years in prison, (2) serve a 

mandatory post-release control term of up to five years, (3) 

register as a tier two sex offender for 25 years, and (4) pay $300 

restitution and costs. This appeal followed. 

 

I.

{¶9} In her first assignment of error, appellant asserts that 

trial counsel rendered ineffective assistance of counsel. In 
ADAMS, 22CA1160 5

particular, appellant contends that because the victim and 

appellant’s late husband lied to appellant about the victim’s age, 

appellant believed the victim “was a lawful sexual partner,” and, 

thus, she lacked the mens rea required for pandering sexuallyoriented matter involving a minor. Therefore, appellant argues, 

her trial counsel did not perform reasonably based on her 

misunderstanding of the mens rea element of pandering sexually 

oriented matter involving a minor. 

{¶10} “Due process requires that a defendant's plea be made 

knowingly, intelligently, and voluntarily; otherwise, the 

defendant's plea is invalid.” State v. Medina, 8th Dist. Cuyahoga 

No. 109693, 2021-Ohio-1727, ¶ 6, citing State v. Bishop, 156 Ohio 

St.3d 156, 2018-Ohio-5132, 124 N.E.3d 766, ¶ 10, citing State v. 

Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 25. 

See State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996), 

citing Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 

71 L.Ed. 1009 (1927) (“When a defendant enters a plea in a criminal 

case, the plea must be knowingly, intelligently, and voluntarily. 

Failure on any of those points renders enforcement of the plea 

unconstitutional under both the United State Constitution and the 

Ohio Constitution.”); State v. Robinson, 8th Dist. Cuyahoga No. 

110467, 2022-Ohio-1311, ¶ 20. 

{¶11} The standard of review for ineffective assistance of 

counsel claims is de novo. State v. Weaver, 171 Ohio St.3d 429, 
ADAMS, 22CA1160 6

2022-Ohio-4371, 218 N.E.3d 806 ¶ 25, citing State v. Gondor, 112 

Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77. However, a guilty 

plea generally waives a defendant's right to claim that counsel’s 

ineffectiveness prejudiced the defendant, except to the extent that 

the ineffective assistance of counsel caused the defendant's plea 

to be less than knowing, intelligent, and voluntary. State v. 

Williams, 8th Dist. Cuyahoga No. 100459, 2014-Ohio-3415, ¶ 11-12, 

citing State v. Spates, 64 Ohio St.3d 269, 272, 595 N.E.2d 351 

(1992), citing Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 

1602, 36 L.Ed.2d 235 (1973).

{¶12} To establish trial counsel’s ineffectiveness, a defendant 

must show that counsel's performance was deficient and that the 

deficient performance prejudiced the defendant. State v. Bunch, 

171 Ohio St.3d 775, 2022-Ohio-4723, 220 N.E.3d 773, ¶ 26, citing 

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 

L.Ed.2d 674. This requires showing that counsel made errors so 

serious that counsel failed to function as the “counsel” guaranteed 

the defendant by the Sixth Amendment. Second, the defendant must 

show that the deficient performance prejudiced the defense. Id. 

Thus, the question is whether counsel was deficient in her 

representation of appellant.

{¶13} In the context of a defendant who entered a guilty plea, 

the defendant can prevail under this standard only by demonstrating 

(1) deficient performance by counsel, i.e., performance falling 
ADAMS, 22CA1160 7

below an objective standard of reasonable representation, that 

caused the defendant's guilty plea to be less than knowing, 

intelligent and voluntary, and (2) a reasonable probability that, 

but for counsel's deficient performance, the defendant would not 

have pled guilty to the offenses at issue and would have insisted 

on going to trial. State v. Khoshknabi, 8th Dist. Cuyahoga No. 

106117, 2018-Ohio-1752, ¶ 29. “‘A reasonable probability is a 

probability sufficient to undermine confidence in the outcome.’” 

State v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989), 

quoting Strickland at 694.

{¶14} As a general matter, defense counsel's tactical decisions 

and trial strategies — even “debatable” ones — do not constitute 

ineffective assistance of counsel. See, e.g., State v. Black, 

2019-Ohio-4977, 149 N.E.3d 1132, ¶ 35 (8th Dist.); see also State 

v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 

101, 111. Therefore, reviewing courts “will ordinarily refrain 

from second-guessing strategic decisions counsel make at trial,” 

even where trial counsel's strategy was “questionable” and even 

where appellate counsel argues that they would have defended 

against the charges differently. State v. Myers, 97 Ohio St.3d 

335, 2002-Ohio-6658, 780 N.E.2d 186, ¶ 152; State v. Mason, 82 Ohio 

St.3d 144, 169, 694 N.E.2d 932 (1998); State v. Murphy, 4th Dist. 

Ross No. 07CA2953, 2008-Ohio-1744, ¶ 42.
ADAMS, 22CA1160 8

{¶15} In the case sub judice, appellant argues that her trial 

counsel's failure to understand the mens rea requirements of R.C. 

2907.322(A)(1) (pandering sexually oriented matter involving a 

minor) and corresponding failure to advise her to plead guilty 

instead to R.C. 2907.31(A)(1) (disseminating matter harmful to 

juveniles) rendered her plea involuntary because it forced her to 

accept a plea she would not otherwise have accepted when she should 

have instead entered a guilty plea to disseminating matter harmful 

to juveniles in violation of R.C. 2907.31. Appellant thus contends 

that trial counsel did not fully understand R.C. 2907.322(A)’s mens 

rea. Specifically, appellant argues that counsel did not 

comprehend the difference between character and content. 

R.C. 2907.322(A)(1) provides: 

(A) No person, with knowledge of the character of the 

material or performance involved, shall do any of the 

following:

(1) Create, record, photograph, film, develop, reproduce, 

or publish any material that shows a minor or impaired 

person participating or engaging in sexual activity, 

masturbation, or bestiality;

Thus, R.C. 2907.322(A)(1) requires that an offender have “knowledge 

of the character of the material or performance involved.” R.C. 

2901.22(B) defines “knowledge,” and states, in relevant part, that

[a] person has knowledge of circumstances when the person 

is aware that such circumstances probably exist. When 

knowledge of the existence of a particular fact is an 

element of an offense, such knowledge is established if a 

person subjectively believes that there is a high 
ADAMS, 22CA1160 9

probability of its existence and fails to make inquiry or 

acts with a conscious purpose to avoid learning the fact.

Therefore, “to have knowledge, a person need only believe that 

certain circumstances probably exist, not that they exist with 100% 

certainty.” State v. Duhamel, 8th Dist. Cuyahoga No. 102346, 2015-

Ohio-3145, ¶ 36. See also State v. Sotelo, 6th Dist. Lucas No. L19-1240, 2020-Ohio-5368, (defendant acknowledged seeing a thumbnail 

of a video of a child and forensic examination revealed defendant 

deleted child pornography videos she sent to her boyfriend, 

permitting jury to draw reasonable inference defendant knew of the 

illicit nature of videos.); State v. Burgun, 56 Ohio St.2d 354, 

364, 384 N.E.2d 255 (1978)(precise knowledge of contents of obscene 

material not prerequisite to satisfy requirement of scienter to 

sustain obscenity conviction and knowledge of character or nature 

of obscene material is a constitutionally adequate indicium of 

scienter to sustain a conviction.); State v. Jenkins, 1st Dist. 

Hamilton No. C–040111, B–0105517–A, 2004-Ohio-7131, (sufficient 

evidence of pandering obscenity when defendant knew of character of 

the material in a videotape; state need not prove defendant knew 

beforehand that materials would be judicially determined obscene). 

{¶16} In State v. Kraft, 1st Dist. Hamilton No. C-060238, 2007-

Ohio-2247, the First District concluded that to establish an R.C. 

2907.322(A)(1) violation, the state must “prove that Kraft knew the 

character of the material: that it involved a real minor engaging 
ADAMS, 22CA1160 10

or participating in sexual activity. The state does not need to 

show that the defendant had precise knowledge of the contents of 

the material,” Id. at ¶ 87, citing Burgun, supra, 56 Ohio St.2d at 

364. The court further observed, “A person has knowledge of 

circumstances when he is aware that such circumstances probably 

exist,” citing R.C. 2901.22(B), and the state may rely solely on 

circumstantial evidence to prove that the defendant knew the 

character of the material. Id.

{¶17} In the case sub judice, R.C. 2907.322(A)(1) required the 

state to prove that appellant knew the character of the material 

she published to the victim. At her plea hearing, the trial court 

asked appellant “how old was the girl?” Appellant replied, “She was

14 at the time.” The court asked, “So, you, you knew at the time 

she was a minor, less than 18 years of age?” Appellant replied, “I 

thought she was 16, almost 17.” The court asked, “But you knew she 

was less than 18 years of age?” Appellant replied, “Yes.” The 

court then asked, “And did you create, record, photograph, film, 

develop, reproduce, or publish material?” Appellant replied, “Yes, 

* * * record.” Finally, the court asked, “And did you publish that 

to anybody? Did you send it to anybody?” Appellant responded, 

“Um, I sent it to the girl.” When asked, “And that what you sent 

and recorded, did it show the minor you’re referring to the girl 

participating or engaging in sexual activity?,” appellant replied, 

“Yes.” The court then asked, “and what was the sexual activity?” 
ADAMS, 22CA1160 11

Appellant, replied, “it involved me and her and her and my 

husband.” The court inquired, “And was it vaginal penetration of 

your husband with, with his penis of her vagina?” Appellant 

replied, “Yes.” The court further asked, “And your involvement, 

did you with the, the minor, was it, um, the act of cunnilingus or 

did you penetrate her in any way, albeit minimal with any of your 

fingers or digits?” Appellant replied, “Yes.” Finally, the court 

asked, “when you recorded this, * * * was it by accident or did you 

intentionally record this act of sexual activity with a minor?” 

Appellant replied, “Yes.” When asked again, “it was intentional?” 

Appellant replied, “Yes.” 

{¶18} Thus, it appears that appellant acknowledged (1) the 

victim was a minor (under the age of 18) (R.C. 2907.01(M)), (2) 

appellant personally recorded her late husband and herself engaging 

in sex acts with the victim, and (3) appellant then published that 

material when appellant transmitted that recording to the victim. 

We believe that these facts sufficiently established that appellant 

possessed the requisite mens rea for a pandering conviction 

pursuant to R.C. 2907.322(A)(1). Appellant created and published

the video knowing that the character of the video included “a minor 

* * * participating or engaging in sexual activity * * * as 

prohibited by R.C. 2907.322(1).” Although we recognize appellant 

acted at the behest of her late husband, we conclude that trial 

counsel did not render a deficient performance. Therefore, we 
ADAMS, 22CA1160 12

conclude that no reasonable probability exists that, but for 

counsel’s errors, appellant would not have entered a guilty plea. 

{¶19} Accordingly, based on the foregoing reasons, we overrule 

appellant’s first assignment of error. 

II.

{¶20} In her second assignment of error, appellant asserts that 

she did not enter a knowing, intelligent, and voluntary plea. 

Here, appellant claims that authorities led her to believe that “it 

was irrelevant that [her late husband] and [the victim] conspired 

to lie about [the victim’s] age and did so.” 

{¶21} In general, when deciding whether to accept a plea a 

court must determine whether a defendant enters the plea knowingly, 

intelligently, and voluntarily. State v. McDaniel, 4th Dist. 

Vinton No. 09CA677, 2010-Ohio-5215, ¶ 8. “‘In considering whether 

a guilty plea was entered knowingly, intelligently and voluntarily, 

an appellate court examines the totality of the circumstances 

through a de novo review of the record to ensure that the trial 

court complied with constitutional and procedural safeguards.’” 

(Emphasis sic.) Id., quoting State v. Eckler, 4th Dist. Adams No. 

09CA878, 2009-Ohio-7064, ¶ 48; State v. Hearn, 4th Dist. Washington 

No. 20CA7, 2021-Ohio-594, ¶ 18; State v. Willoughby, 4th Dist. 

Pickaway No. 20CA5, 2021-Ohio-2611, ¶ 32. 
ADAMS, 22CA1160 13

{¶22} “Before accepting a guilty plea, the trial court should 

engage in a dialogue with the defendant as described in Crim.R. 

11(C).” McDaniel at ¶ 8, citing State v. Morrison, 4th Dist. Adams 

No. 07CA854, 2008-Ohio-4913, ¶ 9. Crim.R. 11(C)(2) provides:

In felony cases the court may refuse to accept a plea of 

guilty or a plea of no contest, and shall not accept a plea 

of guilty or no contest without first addressing the 

defendant personally and doing all of the following:

(a) Determining that the defendant is making the plea 

voluntarily, with understanding of the nature of the 

charges and of the maximum penalty involved and if 

applicable, that the defendant is not eligible for 

probation or for the imposition of community control 

sanctions at the sentencing hearing.

* * *

{¶23} Substantial compliance with Crim.R. 11(C)(2)(a) is 

sufficient for a valid plea concerning nonconstitutional rights. 

State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, 

¶ 14. “‘Substantial compliance means that, under the totality of 

the circumstances, appellant subjectively understood the 

implications of his plea and the rights he waived.’” McDaniel at ¶ 

13, quoting State v. Vinson, 10th Dist. Franklin No. 08AP-903, 

2009-Ohio-3240, ¶ 6. As the Supreme Court of Ohio explained in 

State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, 

¶ 32:

When the trial judge does not substantially comply with 

Crim.R. 11 in regard to a nonconstitutional right, 

reviewing courts must determine whether the trial court 

partially complied or failed to comply with the rule. If 
ADAMS, 22CA1160 14

the trial judge partially complied, e.g., by mentioning 

mandatory postrelease control without explaining it, the 

plea may be vacated only if the defendant demonstrates a 

prejudicial effect. The test for prejudice is “whether 

the plea would have otherwise been made.” If the trial 

judge completely failed to comply with the rule, e.g., by 

not informing the defendant of a mandatory period of 

postrelease control, the plea must be vacated. “A complete 

failure to comply with the rule does not implicate an 

analysis of prejudice.” (Emphasis sic.) (Citations 

omitted.)

{¶24} “Crim.R. 11(C)(2)(b) requires the trial court to inform 

the defendant of the effect of his guilty or no-contest plea and to 

determine whether he understands that effect.” State v. Jones, 116 

Ohio St.3d 211, 2007-Ohio-6093, 877 N.E.2d 677, ¶ 12; State v. 

Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 10-12. 

“To satisfy the effect-of-plea requirement under Crim.R. 

11(C)(2)(b), a trial court must inform the defendant, either orally 

or in writing of the appropriate language of Crim.R. 11(B).” Jones

at ¶ 25, 51. Further, a trial court must also inform the defendant 

that upon acceptance of his pleas, it “may proceed with judgment 

and sentence.” Crim.R. 11(C)(2)(b).

{¶25} In the case sub judice, appellant claims that her late 

husband and the victim “conspired to lie about [the victim’s] age 

and did so.” Thus, appellant contends that authorities led her to 

believe that this alleged conspiracy was irrelevant. As the state 

points out, however, the record is clear that appellant knew the 

victim was under age 18 when she engaged in sexual activity, when 
ADAMS, 22CA1160 15

she recorded the sexual activity, and when she published the video. 

In addition, appellant contends that the trial court overlooked the 

mens rea for pandering that required appellant to know the involved 

character of the videos, but we believe that this argument has no 

merit for the reasons outlined in the discussion of appellant’s 

first assignment of error. 

{¶26} At the change of plea hearing in the case at bar, the 

state agreed to dismiss count two of the indictment. The trial 

court addressed appellant, discussed the charges and maximum 

sentence, and explained the various rights appellant would waive 

with her guilty plea. The court inquired whether appellant had 

consulted with her attorney, whether she was satisfied with her 

representation, and whether she had any questions regarding the 

consequences of her plea. Appellant indicated multiple times that 

she understood her plea’s implications. Further, appellant 

acknowledged that she understood the allegations, the elements, and 

the recommended sentence. See State v. Jackson, 2023-Ohio-3895, 

226 N.E.3d. 518 (4th Dist.), ¶ 37. 

{¶27} Therefore, after our review, we believe that the trial 

court complied with the applicable rules. Further, appellant 

acknowledged that she understood the implications of her plea and 

the various rights she would waive through a guilty plea. 

Appellant, represented by counsel at the plea hearing, did not 

assert her innocence, and nothing suggests any confusion or lack of 
ADAMS, 22CA1160 16

understanding regarding the effect of her guilty plea.

{¶28} Accordingly, because appellant failed to establish 

prejudice, we conclude that appellant knowingly, voluntarily, and 

intelligently entered her guilty pleas and we overrule appellant's 

second assignment of error.

III.

{¶29} In her final assignment of error, appellant asserts that 

at sentencing the trial court neglected to fully consider the 

seriousness factors and improperly considered various extraneous 

factors. 

{¶30} When reviewing felony sentences, appellate courts apply 

the standard of review set forth in R.C. 2953.08(G)(2). State v. 

Prater, 4th Dist. Adams No. 18CA1069, 2019-Ohio-2745, at ¶ 12, 

citing State v. Graham, 4th Dist. Adams No. 17CA1046, 2018-Ohio1277, at ¶ 13. Under R.C. 2953.08(G)(2), “[t]he appellate court's 

standard for review is not whether the sentencing court abused its 

discretion.” Instead, R.C. 2953.08(G)(2) specifies that an 

appellate court may increase, reduce, modify, or vacate and remand 

a challenged felony sentence if the court clearly and convincingly 

finds either:

(a) That the record does not support the sentencing court's 

findings under division (B) or (D) of section 2929.13, 

division (B)(2)(e) or (C)(4) of section 2929.14, or 

division (I) of section 2929.20 of the Revised Code, 

whichever, if any, is relevant;

(b) That the sentence is otherwise contrary to law.
ADAMS, 22CA1160 17

“[C]lear and convincing evidence is that measure or degree of proof 

which is more than a mere ‘preponderance of the evidence,’ but not 

to the extent of such certainty as is required ‘beyond a reasonable 

doubt’ in criminal cases, and which will produce in the mind of the 

trier of facts a firm belief or conviction as to the facts sought 

to be established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 

118 (1954), paragraph three of the syllabus. Thus, an appellate 

court may vacate or modify any sentence that is not clearly and 

convincingly contrary to law if the appellate court concludes, by 

clear and convincing evidence, that the record does not support the 

sentence.

{¶31} The Supreme Court of Ohio has summarized the 

applicability of R.C. 2929.11 and 2929.12 as follows:

In Ohio, two statutory sections serve as a general guide 

for every sentencing. First, R.C. 2929.11(A) provides that 

the overriding purposes of felony sentencing “are to 

protect the public from future crime by the offender and 

others and to punish the offender.” To achieve these 

purposes, the trial court “shall consider the need for 

incapacitating the offender, deterring the offender and 

others from future crime, rehabilitating the offender, and 

making restitution.” Id. The sentence must be 

“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.” R.C. 2929.11(B). * * *

Second, R.C. 2929.12 specifically provides that in 

exercising its discretion, a trial court must consider 

certain factors that make the offense more or less serious 

and that indicate whether the offender is more or less 

likely to commit future offenses. * * *
ADAMS, 22CA1160 18

[A]n offender's conduct is considered less serious when 

there are “substantial grounds to mitigate the offender's 

conduct, although the grounds are not enough to constitute 

a defense.” R.C. 2929.12(C)(4). R.C. 2929.12(C) and (E) 

also permit a trial court to consider “any other relevant 

factors” to determine that an offense is less serious or 

that an offender is less likely to recidivate.

State v. Day, 2019-Ohio-4816, 149 N.E.3d 122, ¶ 15 (4th Dist.), 

quoting State v. Long, 138 Ohio St.3d 478, 2014-Ohio-849, 8 N.E.3d 

890, ¶ 17–18. This court has held that, generally, a sentence is 

not contrary to law if a trial court considered the R.C. 2929.11 

purposes and principles of sentencing, as well as the R.C. 2929.12 

seriousness and recidivism factors, properly applied post-release 

control, and imposed a sentence within the statutory range. Prater 

at ¶ 20; Graham at ¶ 16; State v. Perry, 4th Dist. Pike No. 

16CA863, 2017-Ohio-69, ¶ 21; State v. Bowling, 4th Dist. Jackson 

No. 19CA2, 2020-Ohio-813, ¶ 7. Moreover, neither R.C. 2929.11 nor 

2929.12 requires a trial court to make any specific factual 

findings on the record. State v. Jones, 163 Ohio St.3d 242, 2020-

Ohio-6729, 169 N.E.3d 649, ¶ 20, citing State v. Wilson, 129 Ohio 

St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 31.

{¶32} In the case sub judice, at the sentencing hearing the 

trial court referred to the R.C. 2929.11 purposes of felony 

sentencing and stated that it had “considered the seriousness of 

recidivism factors of R.C. 2929.12.” The court further stated, “I 

cannot restore the victim, I cannot restore [the victim’s mother], 
ADAMS, 22CA1160 19

to a sense of comfort or closure, and I cannot assist the desires 

of your father.” Moreover, the court’s decision stated that it 

considered both the R.C.2929.11 and R.C. 2929.12 sentencing 

factors. A trial court's statement in its sentencing journal entry 

that it considered the required statutory factors is alone 

sufficient to fulfill its obligations under R.C. 2929.11 and 

2929.12. State v. Smith, 4th Dist. 22CA3, 22CA4, 2023-Ohio-681; 

State v. Sutton, 8th Dist. Cuyahoga Nos. 102300 and 102302, 2015–

Ohio–4074, ¶ 72, citing State v. Clayton, 8th Dist. Cuyahoga No. 

99700, 2014–Ohio–112, ¶ 9.

{¶33} Appellant also asserts that the trial court relied on 

extraneous factors and notes the court’s statement, “There is a 

presumption of * * * a prison term and, * * * the court finds your 

actions * * * to be literally beyond the pale of comprehension of 

this court * * *.” The court further stated, “I cannot restore the 

victim. I cannot restore [the victim’s mother] to * * * a sense of 

* * * comfort or closure.” Finally, the court stated, “I cannot 

assist * * * the desires of your father who * * * is a good man and 

loves his daughter. But there must be punishment and * * * in this 

court’s opinion it must be harsh for the act some people when they 

do things beyond the pale of comprehension.” 

{¶34} Appellant cites State v. Bryant, 168 Ohio St.3d 250, 

2022-Ohio-1878, 198 N.E.3d 68, ¶ 22 for the proposition that the 

court based its sentence on a subjective factor, i.e., “beyond the 
ADAMS, 22CA1160 20

pale of comprehension.” Bryant, however, simply reiterates that a 

court may not base a sentence on “impermissible considerations -

i.e., considerations that fall outside those that are contained in 

R.C. 2929.11 and 2929.12.” Id. Here, the trial court’s statement 

that appellant’s actions were “beyond the pale” was simply a 

consideration during the portion of the sentencing hearing in which 

the court analyzed the R.C. 2929.11 and R.C. 2929.12 factors. 

{¶35} Appellant does not explain how this statement constitutes 

an improper reliance on extraneous factors. Appellant’s actions 

severely damaged a young girl and her family. Thus, we believe the 

court’s statement reflects to the seriousness of the offense 

pursuant to R.C. 2929.12, nothing more. 

{¶36} Finally, appellant contends that the age of consent in 

Ohio is 16 years old, R.C. 2907.04(A), and appellant’s late husband 

and the victim “lied to [appellant] about [the victim’s] age.” 

Thus, appellant asserts that she “cannot be punished for it.” As 

the state points out, however, regardless of whether appellant’s 

late husband misled her to believe the victim’s age of 16 rather 

than her actual age of 14, appellant nevertheless violated R.C. 

2907.322(A) because the victim was a juvenile. See R.C. 

2907.01(M). 

{¶37} After our review, we believe that the trial court 

complied with all pertinent sentencing requirements, reviewed and 

considered the presentence investigation report, parties’ 
ADAMS, 22CA1160 21

arguments, victim impact statements and sentencing hearing 

testimony, and arrived at a sentence that falls within the 

statutory range. Consequently, we conclude that the record 

supports the trial court’s sentence and the sentence is not 

contrary to law. 

{¶38} Accordingly, based upon the foregoing reasons, we 

overrule appellant's third assignment of error and affirm the trial 

court’s judgment. 

JUDGMENT AFFIRMED.
ADAMS, 22CA1160 22

JUDGMENT ENTRY

It is ordered that the judgment be affirmed. Appellee shall 

recover from appellant the 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 Adams County Common Pleas Court to carry this 

judgment into execution.

If a stay of execution of sentence and release upon bail has 

been previously granted by the trial court or this court, it is 

temporarily continued for a period not to exceed 60 days upon the 

bail previously posted. The purpose of a continued stay is to 

allow appellant to file with the Supreme Court of Ohio an 

application for a stay during the pendency of the proceedings in 

that court. If a stay is continued by this entry, it will 

terminate at the earlier of the expiration of the 60-day period, or 

the failure of the appellant to file a notice of appeal with the 

Supreme Court of Ohio in the 45-day appeal period pursuant to Rule 

II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. 

Additionally, if the Supreme Court of Ohio dismisses the appeal 

prior to expiration of 60 days, the stay will terminate as of the 

date of such dismissal. 

A certified copy of this entry shall constitute that mandate 

pursuant to Rule 27 of the Rules of Appellate Procedure.

Hess, J. & Wilkin, J.: Concur in Judgment & Opinion

For the Court

BY:_____________________________

 Peter B. Abele, Judge 

 

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a 

final judgment entry and the time period for further appeal 

commences from the date of filing with the clerk.