[Cite as State v. Harris, 2023-Ohio-1777.]

IN THE COURT OF APPEALS OF OHIO

SIXTH APPELLATE DISTRICT

WOOD COUNTY

State of Ohio Court of Appeals No. WD-22-056 

Appellee Trial Court No. 20220CR0010

 

v.

Harley Harris DECISION AND JUDGMENT

Appellant Decided: May 26, 2023

* * * * *

Paul A. Dobson, Wood County Prosecuting Attorney, and

David T. Harold, Chief Assistant Prosecuting Attorney, for appellee.

Lawrence A. Gold, for appellant.

* * * * *

SULEK, J.

{¶ 1} Appellant, Harley D. Harris, appeals from the August 15, 2022 judgment

entered by the Wood County Court of Common Pleas, sentencing him to four years in 

prison following his guilty plea to charges of domestic violence, abduction, aggravated 

assault, and tampering with evidence. For the reasons that follow, the trial court’s 

judgment is affirmed.
2.

Statement of the Case and Relevant Facts

{¶ 2} On April 7, 2022, Harris was charged in a ten-count indictment for offenses 

alleged to have occurred against the victim throughout the month of December 2021. 

Count 1 charged him with aggravated menacing, a misdemeanor of the first degree. 

Counts 2, 4, 5, 7, and 8 charged him with domestic violence, all misdemeanors of the first 

degree, except count 8, which was a felony of the fifth degree. Counts 3, 6, and 9 charged 

him with abduction, all felonies of the third degree. And count 10 charged him with 

tampering with evidence, a felony of the third degree. 

{¶ 3} Pursuant to a plea agreement, Harris pled guilty to all of the charges except 

count 1, with count 8 amended to reflect a fourth-degree charge for aggravated assault.

{¶ 4} At the plea hearing, held on June 7, 2022, the state recited the following 

facts underlying the guilty pleas:

[PROSECUTOR] * * * Your Honor, had the matter proceeded to 

trial, the State would have proven the following beyond a reasonable doubt: 

These events relating to count 2, 3, 4, 5, 6, and 7 all occurred on or about 

December 1st through December 24th, 2021. The events occurred in 

Walbridge, Wood County, Ohio at the [victim’s] residence. The State 

would have established its proof through a series of Nest camera videos, 

which is a camera that was depicting the living room at the Walbridge 

residence.
3.

As it relates to count 2 and 3, the video would have depicted the 

defendant screaming at [the victim], placing her in a full nelson, which was 

restraining her liberty, placing her arms behind her head. She said, you’re 

hurting me. So the restraint and liberty plus the pain, placing her in fear and 

physical harm would constitute the abduction for that, as well as the 

domestic violence charge that the State indicated count 2 and 3 would 

merge at sentencing.

Count 4 is a separate video and a separate circumstance. That depicts 

the defendant and [the victim] entering the residence, with the defendant 

immediately enraged upon entering the residence. He does push her on to 

the couch and begin screaming at her about bills, stating that bills don’t 

mean anything to her, and slapping her in the face with mail and bills is 

what it appears.

Count 5, is again, a separate video, a separate time. Again, pinning 

the victim – the defendant pinning the victim onto the couch, slapping her 

in the face, again this is depicted in the video, and screaming to her that she 

should slap him in the face.

Count 6 and 7 – again, these are one course of conduct. But again, 

count 6 and 7 involve strangulation, separate video, separate time, the 

defendant screaming, I’m going to kill you. During this period, again, [the 
4.

victim] is pinned underneath the defendant, so you have restrained of 

liberty, being the strangulation, and/or placing her in fear and risk of 

physical harm. So that would be both the domestic violence and the 

abduction. 

And again, we would note that all of this during this time frame 

occurred between family and household members. These were two 

individuals that were boyfriend and girlfriend and certainly cohabitating 

with one another in the same home, living together.

Finally, with respect to counts 8, 9, and 10, each of these offenses 

occurred on a specific date, an identified date of December 30th, 2021. 

Walbridge Police did receive a 911 call from a neighbor that the defendant 

was outside in the victim’s car, alleging that he had tried to strike her with 

the car. The victim was pregnant at this time. The defendant knew she was 

pregnant. Police did come. Police separated the parties. The defendant did 

admit to pushing the victim onto the couch. And then you can see on the 

video the pushing and him dragging her out of the house, dragging her 

across the living room floor toward the doorway. This abduction is indicted 

under a different section. There’s an (A)(1) and (A)(2). This abduction 

would be use of force and removing her from the place she is found. So it’s 

a separate section for the dragging her across the room and out the door.
5.

Again, there is physical violence that was mentioned with her being 

pushed onto the couch while pregnant. There’s a stipulation as to a factual 

basis for the aggravated assault charge. With respect to serious physical 

harm, we would note that [the victim] did visit the hospital shortly after this 

event.

And finally, the video shows the defendant ripping the camera down. 

This is the day police were coming. This is the day police were called and 

the defendant did rip the camera down, which the State would have 

indicated would have impaired its ability to be used as evidence in a future 

criminal proceedings [sic].

{¶ 5} At the sentencing hearing, held on August 9, 2022, the trial court heard from 

counsel for both sides, the victim, and Harris. The victim stated that the events of 

December 2021 were “traumatizing” to her. She further stated that her son was present 

during some of those events and that, as a result, he “struggled.” Thereafter, the court 

addressed Harris, stating, “I’m hoping you realize, that during the month of December of 

2021 you, effectively tortured a person.”

{¶ 6} Still addressing Harris, the trial court proceeded to sentence him. After 

finding that Counts 2 and 3 merged for the purpose of sentencing, the court imposed a 

24-month term of imprisonment for the offense of abduction. On counts 4 and 5, the trial 

court imposed a term of 180 days, each, with both sentences ordered to be served 
6.

concurrently with any “felony time.” For count 6, which merged with count 7, the court 

imposed a term of 24 months in prison. The court then stated that all of the terms for 

counts 2 through 7 would be served concurrently.

{¶ 7} Next, the court imposed a term of 18 months in prison on count 8, and a 

term of 24 months in prison on counts 9 and 10. It then ordered that the sentences for 

counts 8, 9, and 10 would be served concurrently with one another, but consecutively to 

the terms imposed for counts 2 through 7. Hall, therefore, received a total sentence of 

four years in prison.

{¶ 8} The trial court articulated the reasons that it was imposing consecutive time, 

beginning with the fact that there were multiple offenses demonstrating that Harris would 

engage in harm to others. The court found that consecutive sentences were necessary 

both to protect the public from future crime and to punish Harris. It further found that 

consecutive sentences were not disproportionate due to the seriousness of Harris’ conduct 

– “over 30 days of torturing another individual” – and due to the danger that he poses to 

the public. 

{¶ 9} The trial court additionally found that the offenses were committed while 

Harris was on community control, and that they were committed as part of a course of 

conduct whose purpose was “to torture the victim in this case.” The trial also court found 

that “the harm caused was so great or unusual that no single prison term for any of these 

offenses committed as part of the course[] of conduct adequately reflects the seriousness 
7.

of [that] conduct.” Finally, the trial court found that Harris’ criminal history 

demonstrates the necessity of imposing consecutive sentences. In making this finding, the 

trial court erroneously used the term “community control,” instead of “consecutive 

sentences.” Immediately after making this finding, the court clarified that it was 

imposing the sentences “consecutively.”

{¶ 10} It is from this judgment entry on sentencing that Harris now appeals.

Assignments of Error

{¶ 11} Harris asserts the following assignments of error on appeal:

I. The trial court erred by making findings unsupported by the record 

prior to imposing a consecutive sentence in the ODRC, pursuant to R.C. 

2929.14(C)(4).

II. The trial court did not impose a sentence on Counts 2 and 7 at the 

time of Appellant’s sentencing hearing.

III. Appellant’s judgment entry does not include sentences for 

Counts 2 and 7.

Analysis

Consecutive Sentences

{¶ 12} Harris argues in his first assignment of error that the trial court did not 

make the proper findings to impose consecutive sentences.
8.

{¶ 13} R.C. 2929.14(C)(4) requires a trial court to make certain findings before 

imposing consecutive sentences. Specifically, the statute provides that a trial court may 

impose consecutive sentences on an offender if it finds “that the consecutive service is 

necessary to protect the public from future crime or to punish the offender,” “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 that one of the following

circumstances exists:

(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.

{¶ 14} “[W]hen a sentencing court makes the statutory findings under R.C. 

2929.14(C)(4) for consecutive sentences, it must consider the number of sentences that it 

will impose consecutively along with the defendant’s aggregate sentence that will result.”

State v. Gwynne, --- Ohio St. 3d. ---, 2022 Ohio-4607, --- N.E.3d ---, ¶ 12.1 

{¶ 15} Although the trial court is required to make the requisite findings both at 

the sentencing hearing and in the sentencing entry, it is not obligated to state reasons in 

support of its findings. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 

659, ¶ 37. Further, although a “word-for-word recitation of the language of the statute is 

not required,” a reviewing court 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. at 29. 

{¶ 16} Where a defendant challenges a trial court’s consecutive-sentence findings, 

“R.C. 2953.08(G)(2)(a) directs the appellate court ‘to review the record, including the 

findings underlying the sentence’ and to modify or vacate the sentence ‘if it clearly and 

convincingly finds * * * [t]hat the record does not support the sentencing court’s findings 

under division * * * (C)(4) of section 2929.14 * * * of the Revised Code.’” Bonnell at 

¶ 28, quoting R.C. 2953.08(G)(2)(a). 

1 We will note that a motion for reconsideration was filed on January 3, 2023. That 

motion is still pending.
10.

Clear 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.

State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 

22, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), 

paragraph three of the syllabus.

State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio1002, 59 N.E.3d 1231, ¶ 22, quoting 

Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the 

syllabus.

{¶ 17} In State v. Gwynne, the Supreme Court of Ohio recently explained that an 

appellate court, when reviewing a trial court’s order of consecutive sentences, is not to 

defer to a trial court’s findings, but instead is to act as a second fact-finder. Id., --- Ohio 

St. 3d. ---, 2022 Ohio-4607 at ¶ 20. “An appellate court’s review of the record and 

findings is de novo with the ultimate inquiry being whether it clearly and convincingly 

finds – in other words, has a firm conviction or belief – that the evidence in the record 

does not support the consecutive-sentence findings that the trial court made.” Id. at ¶ 27. 

In performing this review, an appellate court is required to focus on both the quantity and 

the quality of the evidence in the record that either supports or contradicts the 
11.

consecutive-sentence findings.” Id. “An appellate court may not * * * presume that 

because the record contains some evidence relevant to and not inconsistent with the 

consecutive-sentence findings, that this evidence is enough to fully support the findings.” 

(Emphasis sic.) Id. at ¶ 29. “[I]f, upon review of the record, the [appellate] court is left 

with a firm belief or conviction that the findings are not supported by the evidence, the 

appellate court must vacate or modify [the order of consecutive sentences.] Id. at ¶ 27. 

When modifying a defendant’s consecutive sentences, an appellate court may alter the 

number of consecutive sentences imposed. Id. at ¶ 12.

{¶ 18} In his assignment of error, Harris first mentions that the trial court 

mistakenly referred to imposing community control sanctions at the sentencing hearing 

when it stated, “Further, your criminal history demonstrates that you’ve – it is necessary 

to impose these community control sentences.” From the context, it is clear that the trial 

court simply misspoke and meant to say “consecutive” instead of “community control.” 

Notably, the trial court correctly stated in its sentencing entry that “Defendant’s criminal 

history demonstrates that consecutive sentences are necessary to protect the public from 

future crime by the Defendant.” (Emphasis added.)

{¶ 19} Next, Harris asserts that the trial court’s judgment entry only references 

R.C. 2929.14(C)(4)(b) in its findings. When imposing consecutive sentences, “the trial 

court must make the requisite findings both at the sentencing hearing and in the 

sentencing entry.” (Emphasis sic.) State v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, 
12.

108 N.E.3d 1028, ¶ 253, citing Bonnell at ¶ 37. “However, a word-for-word recitation of 

the language of the statute is not required, and as long as the reviewing court can discern 

that the trial court engaged in the correct analysis and can determine that the record 

contains evidence to support the findings, consecutive sentences should be upheld.” 

Bonnell at ¶ 29. Here, while the trial court’s judgment entry only cites R.C. 

2929.14(C)(4)(b), the trial court’s findings at the sentencing hearing and in the judgment 

entry closely track the language of the statute and demonstrate that the court found R.C. 

2929.14(C)(4)(a) and (c) to be applicable as well. The trial court was not required to 

explicitly reference R.C. 2929.14(C)(4)(a) or (c) in its judgment entry.

{¶ 20} Furthermore, Harris does not contest the trial court’s findings under R.C. 

2929.14(C)(4)(a) or (c), and the record reveals that those findings are supported by the 

evidence. Specifically, the presentence investigation report confirms the trial court’s 

determination that Harris was on probation in the state of Michigan at the time the instant 

offenses were committed, thereby supporting the trial court’s finding under R.C. 

2929.14(C)(4)(a). The presentence investigation report also makes clear that Harris has a 

criminal record that goes back over ten years and includes breaking and entering and 

theft. Thus, the record contains support for the trial court’s finding under R.C. 

2929.14(C)(4)(c) that Harris’s history of criminal conduct demonstrates that consecutive 

sentences are necessary to protect the public from future crime by him. Consequently, 

we do not have a firm belief or conviction that the record does not support the trial 
13.

court’s findings under R.C. 2929.14(C)(4)(a) and (c). Therefore, the trial court did not 

err when it imposed consecutive sentences under R.C. 2929.14(C)(4)(a) and (c).

{¶ 21} Finally, because only one R.C. 2929.14(C)(4) condition needs to be present 

to impose consecutive sentences, it is not necessary to address Harris’s argument that the 

record does not support the trial court’s finding under R.C. 2929.14(C)(4)(b). See State 

v. Braswell, 6th Dist. Lucas No. L-16-1197, 2018-Ohio-3208, ¶ 44 (recognizing that only 

one R.C. 2929.14(C)(4) factor needs to be supported by the record to affirm a trial court’s 

imposition of consecutive sentences). 

{¶ 22} For all of the foregoing reasons, Harris’s first assignment of error is not 

well-taken.

Counts Two and Seven

{¶ 23} Harris asserts in his second and third assignments of error that the trial 

court failed to impose a sentence for counts 2 and 7 that merged with other counts upon 

which the state elected to proceed at sentencing. 

{¶ 24} R.C. 2941.25(A) provides: “Where the same conduct by defendant can be 

construed to constitute two or more allied offenses of similar import, the indictment or 

information may contain counts for all such offenses, but the defendant may be convicted 

of only one.”

{¶ 25} This statute “was enacted to protect a defendant from multiple punishments 

or convictions for the same offense, the third protection under the Double Jeopardy 
14.

Clause.” State v. Horn, 6th Dist. Wood No. WD-21-062, 2023-Ohio-138, ¶ 12. “A 

conviction, for purposes of the allied-offense statute has been defined as a guilty verdict 

combined with imposition of a sentence or penalty.” Id. “It is clear that a defendant may 

be found guilty of multiple allied offenses; however, the offenses must merge at 

sentencing to prevent a double jeopardy violation caused by the imposition of multiple 

sentences for the same crime.” Id. “If the defendant has been found guilty of allied 

offenses, the trial court must direct the prosecutor to elect an offense to pursue for 

sentencing, and then impose a sentence that is appropriate for the state’s chosen offense.” 

(Emphasis added.) State v. Berry, 6th Dist. Lucas No. L-19-1275, 2021-Ohio-2249, ¶ 26.

{¶ 26} At the plea hearing, the state recognized that counts 2 and 7 merged for 

purposes of sentencing with counts 3 and 6, respectively. The state elected to proceed to 

sentencing on counts 3 and 6. Under R.C. 2941.25(A), therefore, the trial court lacked 

authority to impose a sentence on Counts 2 and 7. 

{¶ 27} Accordingly, Harris’s second and third assignments of error are found not 

well-taken.

Conclusion

{¶ 28} The trial court properly imposed consecutive sentences in this case, and it 

did not err in failing to sentence Harris for the findings of guilt that merged for purposes
15.

of sentencing. The judgment of the Wood County Court of Common Pleas is 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

Gene A. Zmuda, J. 

____________________________

Charles E. Sulek, 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/.