[Cite as State v. Mitchell, 2017-Ohio-6888.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 105053

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

BRIAN A. MITCHELL

DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-16-603899-A 

BEFORE: McCormack, J., Keough, A.J., and Kilbane, J. 

RELEASED AND JOURNALIZED: July 20, 2017 
ATTORNEY FOR APPELLANT

Rick L. Ferrara 

2077 East 4th Street, Second Floor 

Cleveland, OH 44114 

ATTORNEYS FOR APPELLEE

Michael C. O’Malley 

Cuyahoga County Prosecutor 

By: Kristin M. Karkutt 

Assistant County Prosecutor 

Justice Center, 9th Floor 

1200 Ontario Street 

Cleveland, OH 44113 
TIM McCORMACK, J.: 

{¶1} Defendant-appellant Brian Mitchell appeals from the consecutive sentences 

imposed by the Cuyahoga County Court of Common Pleas for his convictions of four 

counts of sexual battery. Mitchell was the youth minister at Columbia Road Baptist 

Church. During a two-month period of time in 2015, he engaged in sexual conduct with 

a 16-year-old girl who was a member of the church’s youth ministry (“victim” hereafter). 

 He pleaded guilty to four counts of sexual battery and received consecutive prison terms 

totaling ten years. On appeal, he argues the trial court failed to make the statutory 

findings necessary to impose consecutive sentences. For the following reasons, we 

affirm the judgment of the Cuyahoga County Court of Common Pleas. 

{¶2} Mitchell was indicted with ten counts of sexual battery in violation of R.C. 

2907.03(A)(12). Under that statute, sexual battery is a third-degree felony. The statute 

prohibits a cleric from engaging in sexual conduct with a minor who is a member of the 

cleric’s congregation. Mitchell, 31 years old and a father of three young children, 

allegedly engaged in sexual intercourse with the 16-year-old victim on ten occasions 

between August 15, 2015, and September 25, 2015. 

{¶3} Mitchell pleaded guilty to four of the ten counts of sexual battery and the 

remaining counts were nolled. Before sentencing, he submitted 33 letters from friends 

and family vouching for his character. At sentencing, the trial court heard from several 

members of the victim’s family about the devastating effect Mitchell’s conduct had on the 

victim and her family, who began attending the church years ago when the victim’s father 
passed away. The prosecutor then read a long letter from the victim, which revealed 

how Mitchell took advantage of his leadership position in the church’s youth group and 

pursued the victim for a sexual relationship. Over time, Mitchell worked to earn the 

victim’s trust, telling her he thought of her as a daughter. The victim believed Mitchell 

was someone whom she could turn to for advice and guidance. Mitchell then began to 

pursue her intensively by sending her frequent text messages. The tone of the text 

messages turned from innocent to serious over time. Mitchell also began to confide in 

the victim regarding his marital problems. The relationship then turned sexual. 

Mitchell would come to the victim’s home while her mother was working and engage in 

sexual intercourse with her in his car. Even after the events had come to light and 

Mitchell was arrested for his offenses, the victim was startled to find that he was still 

sending her emails under a fictitious name professing his love for her. 

{¶4} The trial court sentenced Mitchell to five years of prison on each of the four 

counts of sexual battery, with Counts 2 and 6 running consecutive to each other. On 

appeal, Mitchell raises two assignments of error: 

1. The trial court committed plain error by failing to make the findings 

necessary to impose consecutive sentences. 

2. The trial court erred when it imposed a term of imprisonment of ten 

years that was clearly and convincingly disproportionate to the 

danger appellant posed to the public. 
{¶5} A review of the argument under the two assignments of error shows that 

both claims relate to the disproportionality finding required for an imposition of 

consecutive sentences. We address the two assignments together. 

{¶6} H.B. 86, enacted in 2011, revived a presumption of concurrent sentences. 

Consecutive sentences can be imposed only if the trial court makes the required findings 

pursuant to R.C. 2929.14(C)(4). State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 

16 N.E.3d 659. Pursuant to R.C. 2929.14(C)(4), in order to impose consecutive 

sentences, the trial court must find that consecutive sentences are “necessary to protect 

the public from future crime or to punish the offender,” that such 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 applies: 

(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 postrelease 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. 
{¶7} “When imposing consecutive sentences, a trial court must state the required 

findings as part of the sentencing hearing, and by doing so it affords notice to the offender 

and to defense counsel.” Bonnell at ¶ 29, citing Crim.R. 32(A)(4). “Findings,” for 

these purposes, means that “‘the [trial] court must note that it engaged in the analysis’ and 

that it ‘has considered the statutory criteria and specifie[d] which of the given bases 

warrants its decision.’” Id. at ¶ 26, quoting State v. Edmonson, 86 Ohio St.3d 324, 326, 

715 N.E.2d 131 (1999). 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. The 

trial court is not required to give a “talismanic incantation” of the words of the statute, 

provided the necessary findings can be found in the record. Id. at ¶ 37. 

{¶8} In addition, in an appeal involving consecutive sentences, such as the 

instant case, we are required under R.C. 2953.08(G)(2)(a) to review the record, including 

the findings underlying the sentence, and, to modify or vacate the sentence when we 

clearly and convincingly find that the record does not support the trial court’s findings 

under R.C. 2929.14(C)(4). Id. at ¶ 28. 

{¶9} Here, our review of the sentencing transcript reflects that the trial court 

narrated extensively on the lifetime of trauma created by the horrific nature of the 

offenses committed by Mitchell. The court stressed that Mitchell’s position of spiritual 

trust and authority enabled him to earn the victim’s trust readily, rendered his relationship 
with the victim “extremely abusive.” The court characterized the crime in this case as 

a “power crime” perpetrated by one in the position of authority against a powerless 

victim. The court characterized the emotional and psychological damage described by 

the victim as classic signs of post-traumatic stress disorder. Before imposing 

consecutive sentences on two of the four counts of sexual battery, the court stated 

So the Court having considered all these things and the nature of this 

offense, and the specific facts of this offense * * * [a]nd the Court now is 

confronted with what is an appropriate consequence[.] How much time in 

prison is necessary to punish you? How much time is not disproportionate 

to what you did? How much time is necessary to protect the community? 

How much time is necessary due to the unusual amount of harm, the great 

amount of harm? And there’s great harm here. And this is — this test is 

not an easy test in your situation. 

 

And your sort of delusional sort of excuse, some sort of emotion and 

love involved with this is troubling. That’s troubling. Because that’s — 

that’s extremely delusional, and it will take considerable work on your part 

to see this could never be anything but abusive. Never could it have been. 

 And that’s why these sex offender laws are in place. That’s why there’s 

such harsh consequences. 

And so I’m balancing all of this. I’ve considered all of those factors. 

* * * 

I am going to run Counts 2 and 6 consecutive to each other * * * . The 

amount of harm is so great or unusual a single prison sentence is not 

adequate. 

(Emphasis added.) 

{¶10} Mitchell argues the trial court failed to make the finding regarding 

proportionality and also argues the record clearly and convincingly shows that his 

sentence was disproportionate to the danger he posed to the pubic. We disagree with his 

contentions. 
{¶11} While the trial court did not recite the statutory finding word for word 

regarding proportionality, we are able to clearly discern that the trial court engaged in the 

correct analysis and to determine that the record contains evidence to support the finding. 

Bonnell at ¶ 29. The court signaled its awareness of the necessity of the 

proportionality finding when it stated, “How much time in prison is necessary to punish 

you? How much time is not disproportionate to what you did? How much time is 

necessary to protect the community?” The court’s reasoning, although not a verbatim 

recitation of the statutory finding that “the consecutive sentences are not disproportionate 

to the seriousness of the offender’s conduct and to the danger the offender poses to the 

public,” reflects that the trial court engaged in the appropriate analysis and also placed the 

finding on the record. 

{¶12} Furthermore, our review of the record supports the trial court’s finding. 

The victim’s father passed away while she was at a very young age, and she was raised in 

the church. While an impressionable teenager, she joined the church’s youth ministry to 

seek guidance and direction for her life. Mitchell, taking advantage of his position of 

spiritual authority and the victim’s faith in God, manipulated and groomed the victim for 

his own sexual gratification. 

{¶13} Mitchell argues that the record does not support a finding that his 

consecutive sentences are not disproportionate to the danger he poses to the public 

because, as a convicted felon, he will no longer be a member of the clergy and the victim 

would reach the age of majority within two years. We note that proportionality finding 
regarding “the danger the offender poses to the public” is not the same as recidivism for 

the same crime. Moreover, there are no specific statutory factors for the 

danger-to-the-public finding; neither is the trial court obligated to state reasons to support 

its finding. State v. Jackson, 8th Dist. Cuyahoga No. 101575, 2015-Ohio-1023, ¶ 14, 

citing Bonnell at syllabus. Mitchell’s brazen betrayal of the congregation who had 

entrusted him to provide spiritual leadership for their young followers could be one of the 

factors when the court assessed the danger he poses to the public. Given the facts of this 

case, we do not “clearly and convincingly” find that the record does not support the trial 

court’s finding. The first and second assignment of error are without merit. 

{¶14} Judgment affirmed. 

It is ordered that appellee recover of appellant 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 common 

pleas court to carry this judgment into execution. The defendant’s conviction having 

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court 

for execution of sentence. 
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

_______________________________________ 

TIM McCORMACK, JUDGE 

KATHLEEN ANN KEOUGH, A.J., and 

MARY EILEEN KILBANE, J., CONCUR