[Cite as State v. Hayes, 2019-Ohio-1629.]

COURT OF APPEALS 

KNOX COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsROSE M. HAYES 

 Defendant-Appellant 

JUDGES: 

: Hon. W. Scott Gwin, P.J. 

: Hon. John W Wise, J. 

: Hon. Craig R. Baldwin, J 

: 

: 

: Case No. 18CA10 

: 

: 

: OPINION 

CHARACTER OF PROCEEDING: Criminal appeal from the Knox County 

Court of Common Pleas, Case No. CR08-

0172 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: April 29, 2019 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

CHARLES MCCONVILLE KEVIN GALL 

Knox County Prosecutor 33 West Main Street, Ste. 109 

117 E. High Street. Suite 234 Newark, OH 43055 

Mount Vernon, OH 43050 
Knox County, Case No. 18CA10 2 

Gwin, P.J. 

{¶1} Appellant Rose M. Hayes [“Hayes”] appeals her conviction and sentence 

after a jury trial in the Knox County Court of Common Pleas. 

Facts and Procedural History 

{¶2} On August 2, 2017, the Knox County Grand Jury indicted Hayes on one 

count of Permitting Drug Abuse in violation of R.C. 2925.13(B), a felony of the fifth 

degree. 

{¶3} On September 13, 2017, Pretrial Release Officer Adam Taylor filed a 

Bond Violation, stating that Hayes had admitted to use of methamphetamine and 

heroin in violation of her bond conditions. On September 15, 2017, the trial court 

again set a recognizance bond with pretrial reporting conditions. 

{¶4} On January 17, 2018, Officer Adam Taylor filed another Bond Violation, 

alleging violations of law by Hayes. A warrant was issued and Hayes was arrested on 

February 4, 2018. 

{¶5} On February 6, 2018, a bond hearing was held and bond was established 

at $2,500 cash or surety with application of the 10 percent provision. Edward Horn 

posted Bond on February 6, 2018. 

{¶6} A jury trial commenced on March 10, 2018. The following evidence was 

presented during Hayes’ jury trial. 

{¶7} In the fall of 2016, the Knox County Sheriff's Office and the Mt. Vernon 

Police Department combined for a joint investigation into local drug activity. The subjects of 

the investigation were known by their street names as "Dot" and "B.” Information was 

received that Dot and B were coming from Columbus to the city of Mt. Vernon and selling 
Knox County, Case No. 18CA10 3 

heroin and cocaine out of an apartment located at 807 North Mulberry Street, Apartment A, 

Mt. Vernon, Ohio. This apartment was leased to Hayes. 

{¶8} Investigators arranged a series of drug buys from Dot and B, using 

confidential informants. Four undercover drug purchases were conducted. After the final 

buy on December 15, 2016, members of the Emergency Situation Unit of the Mt. Vernon 

Police department executed a search warrant on the apartment. 

{¶9} In the course of the investigation, law enforcement officers determined that 

Dot's real name is Sabian Chatman. Officers also learned that Chatman was a Columbus 

gang member with an extensive criminal history. Chatman was taken into custody, drugs 

were recovered in the apartment, and Rose Hayes and her brother Edward Horn were 

present. Detective Craig Feeney testified that 41.71 grams of heroin belonging to 

Chatman were taken from inside the apartment. 

{¶10} In an interview conducted by officers, Rose Hayes admitted to living at the 

residence while Dot and B were selling drugs out of her apartment. On December 15, 2016, 

Detective Feeney conducted a recorded interview with Hayes that was played at trial 

(State’s Exhibit 26). During the interview, Hayes admitted that she knew that Chatman was 

selling drugs from the residence, and that she knew his prices were, "60 a half, 120 a gram; 

200 a ball.” In the interview, she stated that she knew he was selling '"heroin and meth.” 

She stated that he would come up with "quite a bit" of drugs. 

{¶11} Edward Horn, Hayes' brother who also lived at 867 N. Mulberry Street, testified 

that “Dot” provided drugs to them, and that he and Hayes both used drugs. While he testified 

he did not like the drug activity, he admitted he did not contact the police. 
Knox County, Case No. 18CA10 4 

{¶12} At the conclusion of the evidence, the jury returned a guilty verdict. The trial 

court deferred sentencing pending the completion of a Pre-sentence Investigation Report. 

{¶13} On November 7, 2018, while the instant case was awaiting trial, Hayes was 

indicted in Knox County Case No. 17CR11-0274 for one count Of Aggravated Possession 

of Drugs, a felony of the fifth degree in violation of R.C. 2925.11(A), and one count of 

Possession of Drug Abuse Instruments, a misdemeanor of the second degree in violation of 

R.C. 2925.12(A). Hayes entered a plea of guilty to both counts prior to the sentencing in the 

case at bar. 

{¶14} On April 27, 2018, the trial court sentenced Hayes on both cases. In 17CR11-

0274, Hayes was sentenced to nine months imprisonment on Count One and two months 

imprisonment of Count 2, concurrent. In the case at bar, 17CR08-0172, the trial court 

sentenced Hayes to eleven months imprisonment consecutive to Case No. 17CR11-0274. 

Assignments of Error 

{¶15} Hayes presents three Assignments of Error, 

{¶16} “I. THE DEFENDANT-APPELLANT’S CONVICTION WAS NOT 

SUPPORTED BY SUFFICIENT EVIDENCE. 

{¶17} “II. THE DEFENDANT-APPELLANT'S CONVICTION WAS AGAINST THE 

MANIFEST WEIGHT OF THE EVIDENCE. 

{¶18} “III. THE TRIAL COURT ERRED BY SENTENCING THE APPELLANT TO A 

PRISON SENTENCE IN VIOLATION OF THE SENTENCING STATUTES.” 
Knox County, Case No. 18CA10 5 

I & II. 

{¶19} In her first assignment of error, Hayes argues that there was insufficient 

evidence to convict her of permitting drug abuse. In her second assignment of error, Hayes 

contends that the jury’s findings are against the manifest weight of the evidence. 

STANDARD OF APPELLATE REVIEW. 

Sufficiency of the Evidence. 

{¶20} The Sixth Amendment provides: “In all criminal prosecutions, the accused 

shall enjoy the right to a speedy and public trial, by an impartial jury....” This right, in 

conjunction with the Due Process Clause, requires that each of the material elements of 

a crime be proved to a jury beyond a reasonable doubt. Alleyne v. United States, 570 

U.S. __, 133 S.Ct. 2151, 2156, 186 L.Ed.2d 314 (2013); Hurst v. Florida, 136 S.Ct. 616, 

621, 193 L.Ed.2d 504 (2016). The test for the sufficiency of the evidence involves a 

question of law for resolution by the appellate court. State v. Walker, 150 Ohio St.3d 409, 

2016-Ohio-8295, 82 N.E.3d 1124, ¶30. “This naturally entails a review of the elements 

of the charged offense and a review of the state's evidence.” State v. Richardson, 150 

Ohio St.3d 554, 2016-Ohio-8448, 84 N.E.3d 993, ¶13. 

{¶21} When reviewing the sufficiency of the evidence, an appellate court does not 

ask whether the evidence should be believed. State v. Jenks, 61 Ohio St.3d 259, 574 

N.E.2d 492 (1991), paragraph two of the syllabus: Walker, at ¶30. “The relevant inquiry 

is whether, after viewing the evidence in the light most favorable to the prosecution, any 

rational trier of fact could have found the essential elements of the crime proven beyond 

a reasonable doubt.” Jenks at paragraph two of the syllabus. State v. Poutney, Oh. Sup. 

Ct. No. 2016-1255, 2018-Ohio-22, 2018 WL 328882 (Jan. 4, 2018), ¶19. Thus, “on review 
Knox County, Case No. 18CA10 6 

for evidentiary sufficiency we do not second-guess the jury's credibility determinations; 

rather, we ask whether, ‘if believed, [the evidence] would convince the average mind of 

the defendant's guilt beyond a reasonable doubt.’” State v. Murphy, 91 Ohio St.3d 516, 

543, 747 N.E.2d 765 (2001), quoting Jenks at paragraph two of the syllabus (emphasis 

added); Walker at ¶31. We will not “disturb a verdict on appeal on sufficiency grounds 

unless ‘reasonable minds could not reach the conclusion reached by the trier-of-fact.’” 

State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 94, quoting State 

v. Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997); State v. Montgomery, 148 

Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180, ¶74. 

ISSUE FOR APPEAL 

A. Whether, after viewing the evidence in the light most favorable to the 

prosecution, the evidence, “if believed, would convince the average mind of the 

defendant's guilt on each element of the crimes beyond a reasonable doubt.” 

{¶22} Hayes was convicted of permitting drug abuse. R.C. 2925.13 provides, in relevant 

part, 

 (B) No person who is the owner, lessee, or occupant, or who has custody, 

control, or supervision, of premises or real estate, including vacant land, shall 

knowingly permit the premises or real estate, including vacant land, to be used for 

the commission of a felony drug abuse offense by another person. 

{¶23} Pursuant to R.C. 2901.22(B), “[a] person acts knowingly, regardless of his purpose, 

when he is aware that his conduct will probably cause a certain result or will probably be of a certain 

nature.” Further, “[a] person has knowledge of circumstances when he is aware that such 

circumstances probably exist.” Id. “Whether a person acts knowingly can only be 
Knox County, Case No. 18CA10 7 

determined, absent a defendant’s admission, from all the surrounding facts and 

circumstances, including the doing of the act itself.” State v. Huff, 145 Ohio App.3d 555, 

563, 763 N.E.2d 695(2001). (Footnote omitted.) Thus, “[t]he test for whether a defendant 

acted knowingly is a subjective one, but it is decided on objective criteria.” State v. 

McDaniel, 2nd Dist. No. 16221, 1998 WL 214606 (May 1, 1998), citing State v. Elliott, 

104 Ohio App.3d 812, 663 N.E.2d 412(1995).

{¶24} Hayes does not dispute the fact that Chatman was selling drugs from her home. 

Rather, she contends that the state did not present evidence that she was present when drugs 

were sold or that she had sold drugs. Further, Hayes argues that she was scared of Chatman 

who was a known gang member with a violent history. 

{¶25} In the case at bar, evidence was presented that Hayes was the lessee of the 

apartment. No other names appeared on the lease. She lived there. Her brother and nephew 

also lived there, but were not named as lessees. The evidence established that Hayes knew 

Chatman was selling drugs from her apartment, she knew what kinds of drugs were being sold 

as well as the prices. Hayes and her brother received drugs in exchange for Chatman staying 

at the apartment. 

{¶26} Hayes did not testify during her trial. Hayes did not request a jury instruction on 

the affirmative defense of duress. State v. Cross, 58 Ohio St.2d 482, 485, 391 N.E.2d 319 (1979). 

In State v. Jones, the Court observed, 

 For a duress defense to be viable, “[t]he force and harm threatened must 

be in praesenti; fear of future harm is not a sound basis for the defense of duress.” 

State v. Hackley, 2d Dist. Montgomery No. 11407, 1990 WL 119292, *5 (Aug. 15, 

1990), citing State v. Good, 110 Ohio App. 415, 419, 165 N.E.2d 28 (10th Dist. 
Knox County, Case No. 18CA10 8 

1960); see also State v. Simes, 8th Dist. Cuyahoga No. 103672, 2016-Ohio-7300, 

¶ 40 (“Fear of future harm is not sufficient to prove the affirmative defense of 

duress. * * * Appellant’s fear that Towns would ‘make good’ on his threat at some 

undetermined time in the future is insufficient to support a duress instruction.”). “ 

The Ohio Supreme Court has made clear that the defense of duress is ‘strictly 

and extremely limited in application and will probably be effective in very rare 

occasions.’ ” State v. Zhang, 6th Dist. Wood No. WD-15-018, 2016-Ohio-975, ¶ 

19, quoting State v. Cross, 58 Ohio St.2d 482, 488, 391 N.E.2d 319, 323 (1979) 

2nd Dist. Clark No. 2018-CA-18, 2019-Ohio-239, ¶ 12. There is no such evidence in the 

present cause. Hayes never testified. In her statement to the police, Hayes said she was 

“afraid at times, because you don’t know.” 

{¶27} Viewing the evidence in the case at bar in a light most favorable to the 

prosecution, we conclude that a reasonable person could have found beyond a 

reasonable doubt that Hayes had committed the crime of Permitting Drug Abuse. 

{¶28} We hold, therefore, that the state met its burden of production regarding 

each element of the crime of Permitting Drug Abuse and, accordingly, there was sufficient 

evidence to submit the charge to the jury and to support Hayes’ conviction. 

Manifest weight of the evidence. 

{¶29} As to the weight of the evidence, the issue is whether the jury created a 

manifest miscarriage of justice in resolving conflicting evidence, even though the 

evidence of guilt was legally sufficient. State v. Thompkins, 78 Ohio St.3d 380, 386–387, 

678 N.E.2d 541 (1997), superseded by constitutional amendment on other grounds as 
Knox County, Case No. 18CA10 9 

stated by State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668, 1997–Ohio–355; State v. 

Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001). 

 “[I]n determining whether the judgment below is manifestly against 

the weight of the evidence, every reasonable intendment and every 

reasonable presumption must be made in favor of the judgment and the 

finding of facts. 

* * * 

 “If the evidence is susceptible of more than one construction, the 

reviewing court is bound to give it that interpretation which is consistent with 

the verdict and judgment, most favorable to sustaining the verdict and 

judgment.” 

Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn. 

3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978). 

{¶30} The reviewing court must bear in mind, however, that credibility generally is 

an issue for the trier of fact to resolve. State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 

904 (2001); State v. Murphy, 4th Dist. Ross No. 07CA2953, 2008–Ohio–1744, ¶ 31. 

Because the trier of fact sees and hears the witnesses and is particularly competent to 

decide whether, and to what extent, to credit the testimony of particular witnesses, the 

appellate court must afford substantial deference to its determinations of credibility. 

Barberton v. Jenney, 126 Ohio St.3d 5, 2010–Ohio–2420, 929 N.E.2d 1047, ¶ 20. In 

other words, “[w]hen there exist two fairly reasonable views of the evidence or two 

conflicting versions of events, neither of which is unbelievable, it is not our province to 

choose which one we believe.” State v. Dyke, 7th Dist. Mahoning No. 99 CA 149, 2002–
Knox County, Case No. 18CA10 10 

Ohio–1152, at ¶ 13, citing State v. Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d 125(7th 

Dist. 1999). Thus, an appellate court will leave the issues of weight and credibility of the 

evidence to the fact finder, as long as a rational basis exists in the record for its decision. 

State v. Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012–Ohio–1282, ¶ 24. 

{¶31} Once the reviewing court finishes its examination, an appellate court may 

not merely substitute its view for that of the jury, but must find that “ ‘the jury clearly lost 

its way and created such a manifest miscarriage of justice that the conviction must be 

reversed and a new trial ordered.’” State v. Thompkins, supra, 78 Ohio St.3d at 387, 

quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist. 

1983). Accordingly, reversal on manifest weight grounds is reserved for “the exceptional 

case in which the evidence weighs heavily against the conviction.” Id. 

ISSUE FOR APPEAL. 

B. Whether the trial court clearly lost their way and created such a manifest 

miscarriage of justice that the convictions must be reversed and a new trial ordered. 

{¶32} The jury as the trier of fact was free to accept or reject any and all of the 

evidence offered by the parties and assess the witness’s credibility. “While the trier of 

fact may take note of the inconsistencies and resolve or discount them accordingly * * * 

such inconsistencies do not render defendant’s conviction against the manifest weight or 

sufficiency of the evidence.” State v. Craig, 10th Dist. Franklin No. 99AP–739, 1999 WL 

29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09–1236, 1996 

WL 284714 (May 28, 1996). Indeed, the trier of fact need not believe all of a witness’ 

testimony, but may accept only portions of it as true. State v. Raver, 10th Dist. Franklin 

No. 02AP–604, 2003–Ohio–958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197 
Knox County, Case No. 18CA10 11 

N.E.2d 548 (1964); State v. Burke, 10th Dist. Franklin No. 02AP–1238, 2003–Ohio–2889, 

citing State v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992). Although 

the evidence may have been circumstantial, we note that circumstantial evidence has the 

same probative value as direct evidence. State v. Jenks, 61 Ohio St.3d 259, 272, 574 

N.E.2d 492 (1991), paragraph one of the syllabus, superseded by State constitutional 

amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n.4, 

684 N.E.2d 668 (1997). 

{¶33} In the case at bar, the jury heard the witnesses, viewed the evidence and 

heard Hayes’ statement to the police as well as his attorney’s arguments and 

explanations about her actions. Thus, a rational basis exists in the record for the jury’s 

decision. 

{¶34} We find that this is not an “‘exceptional case in which the evidence weighs 

heavily against the conviction.’” State v. Thompkins, 78 Ohio St.3d 380, 386–387, 678 

N.E.2d 541 (1997), quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. Based upon 

the foregoing and the entire record in this matter we find Hayes’s conviction is not against 

the sufficiency or the manifest weight of the evidence. To the contrary, the jury appears 

to have fairly and impartially decided the matters before them. The jury heard the 

witnesses, evaluated the evidence, and was convinced of Hayes’ guilt. 

{¶35} The jury neither lost his way nor created a miscarriage of justice in 

convicting Hayes of Permitting Drug Abuse. 

{¶36} Finally, upon careful consideration of the record in its entirety, we find that 

there is substantial evidence presented which if believed, proves all the elements of the 

crime for which Hayes was convicted. 
Knox County, Case No. 18CA10 12 

{¶37} Hayes’ First and Second Assignments of Error are overruled. 

III. 

{¶38} In her Third Assignment of Error, Hayes argues that the trial court did not 

properly consider and weight the seriousness and recidivism factors set forth in R.C. 

2929.11 and R.C. 2929.12. 

Standard of Appellate Review. 

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

2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002, 59 N.E.3d 1231, ¶22; 

State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶31. R.C. 

2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence 

and remand 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. 

See, also, State v. Bonnell, 140 Ohio St.3d 209, 2014–Ohio–3177, 16 N.E.2d 659, ¶28. 

{¶40} Accordingly, pursuant to Marcum this Court may vacate or modify a felony 

sentence on appeal only if it determines by clear and convincing evidence that: (1) the 

record does not support the trial court's findings under relevant statutes, or (2) the 

sentence is otherwise contrary to law. 

{¶41} Clear and convincing evidence is that evidence “which will provide 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. See also, In re Adoption of Holcomb, 18 Ohio St.3d 361 (1985). “Where the 

degree of proof required to sustain an issue must be clear and convincing, a reviewing 
Knox County, Case No. 18CA10 13 

court will examine the record to determine whether the trier of facts had sufficient 

evidence before it to satisfy the requisite degree of proof.” Cross, 161 Ohio St. at 477 

120 N.E.2d 118. 

ISSUE FOR APPEAL. 

Whether the trial court properly imposed the prison sentence in Hayes’s case.

(1). R.C. 2929.11 and R.C. 2929.12 and non-maximum sentences. 

{¶42} A trial court’s imposition of a prison term for a felony conviction is not 

contrary to law as long as the sentence is within the statutory range for the offense, and 

the court considers both the purposes and principles of felony sentencing set forth in R.C. 

2929.11 and the seriousness and recidivism factors set forth R.C. 2929.12. State v. Keith, 

8th Dist. Cuyahoga Nos. 103413 and 103414, 2016–Ohio–5234, ¶ 10, 16; State v. Taylor, 

5th Dist. Richland No. 17CA29, 2017-Ohio-8996, ¶16. 

{¶43} In State v. Marcum, the Supreme Court observed, 

 We note that some sentences do not require the findings that R.C. 

2953.08(G) specifically addresses. Nevertheless, it is fully consistent for 

appellate courts to review those sentences that are imposed solely after 

consideration of the factors in R.C. 2929.11 and 2929.12 under a standard 

that is equally deferential to the sentencing court. That is, an appellate court 

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

contrary to law only if the appellate court finds by clear and convincing 

evidence that the record does not support the sentence. 

146 Ohio St.3d at ¶ 23, 2016–Ohio–1002, 59 N.E.3d 123. 
Knox County, Case No. 18CA10 14 

{¶44} R.C. 2929.11(A) governs the purposes and principles of felony sentencing 

and provides that a sentence imposed for a felony shall be reasonably calculated to 

achieve the two overriding purposes of felony sentencing, which are (1) to protect the 

public from future crime by the offender and others, and (2) to punish the offender using 

the minimum sanctions that the court determines will accomplish those purposes. 

Further, the sentence imposed shall be “commensurate with and not demeaning to the 

seriousness of the offender’s conduct and its impact on the victim, and consistent with 

sentences imposed for similar crimes by similar offenders.” R.C. 2929.11(B). 

{¶45} R.C. 2929.12 sets forth the seriousness and recidivism factors for the 

sentencing court to consider in determining the most effective way to comply with the 

purposes and principles of sentencing set forth in R.C. 2929.11. R.C. 2929.12 is a 

guidance statute that sets forth the seriousness and recidivism criteria that a trial court 

“shall consider” in fashioning a felony sentence. Subsections (B) and (C) establish the 

factors indicating whether the offender's conduct is more serious or less serious than 

conduct normally constituting the offense. These factors include the physical or mental 

injury suffered by the victim due to the age of the victim; the physical, psychological, or 

economic harm suffered by the victim; whether the offender’s relationship with the victim 

facilitated the offense; the defendant’s prior criminal record; whether the defendant was 

under a court sanction at the time of the offense; whether the defendant shows any 

remorse; and any other relevant factors. R.C. 2929.12(B). The court must also consider 

any factors indicating the offender’s conduct is less serious than conduct normally 

constituting the offense, including any mitigating factors. R.C. 2929.12(C). Subsections 
Knox County, Case No. 18CA10 15 

(D) and (E) contain the factors bearing on whether the offender is likely or not likely to 

commit future crimes. 

{¶46} In State v. Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912, 896 N.E.2d 124, 

the court discussed the effect of the State v. Foster, 109 Ohio St.3d 1, 2006–Ohio–856, 

845 N.E.2d 470 decision on felony sentencing. The court stated that in Foster the Court 

severed the judicial-fact-finding portions of R.C. 2929.14, holding that “trial courts have 

full discretion to impose a prison sentence within the statutory range and are no longer 

required to make findings or give their reasons for imposing maximum, consecutive, or 

more than the minimum sentences.” Kalish at ¶ 1 and ¶ 11, citing Foster at ¶ 100, See 

also, State v. Payne, 114 Ohio St.3d 502, 2007–Ohio–4642, 873 N.E.2d 306; State v. 

Firouzmandi, 5th Dist. Licking No. 2006–CA–41, 2006–Ohio–5823. 

{¶47} “Thus, a record after Foster may be silent as to the judicial findings that 

appellate courts were originally meant to review under 2953.08(G)(2).” Kalish at ¶ 12. 

However, although Foster eliminated mandatory judicial fact-finding, it left intact R.C. 

2929.11 and 2929.12, and the trial court must still consider these statutes. Kalish at ¶ 

13, see also State v. Mathis, 109 Ohio St.3d 54, 2006–Ohio–855, 846 N.E.2d 1; State v. 

Firouzmandi supra at ¶ 29. 

{¶48} Thus, post-Foster, “there is no mandate for judicial fact-finding in the 

general guidance statutes. The court is merely to ‘consider’ the statutory factors.” Foster 

at ¶ 42. State v. Rutter, 5th Dist. No. 2006–CA–0025, 2006–Ohio–4061; State v. Delong,

4th Dist. No. 05CA815, 2006–Ohio–2753 at ¶ 7–8. Therefore, post-Foster, trial courts 

are still required to consider the general guidance factors in their sentencing decisions. 
Knox County, Case No. 18CA10 16 

{¶49} There is no requirement in R.C. 2929.12 that the trial court states on the 

record that it has considered the statutory criteria concerning seriousness and recidivism 

or even discussed them. State v. Polick, 101 Ohio App.3d 428, 431(4th Dist. 1995); State 

v. Gant, 7th Dist. No. 04 MA 252, 2006–Ohio–1469, at ¶ 60 (nothing in R.C. 2929.12 or 

the decisions of the Ohio Supreme Court imposes any duty on the trial court to set forth 

its findings), citing State v. Cyrus, 63 Ohio St.3d 164, 166, 586 N.E.2d 94(1992); State v. 

Hughes, 6th Dist. No. WD–05–024, 2005–Ohio–6405, ¶ 10 (trial court was not required 

to address each R.C. 2929.12 factor individually and make a finding as to whether it was 

applicable in this case), State v. Woods, 5th Dist. No. 05 CA 46, 2006–Ohio–1342, ¶ 19 

(“... R.C. 2929.12 does not require specific language or specific findings on the record in 

order to show that the trial court considered the applicable seriousness and recidivism 

factors”) (citations omitted); State v. Taylor, 5th Dist. Richland No. 17CA29, 2017-Ohio8996, ¶23. 

{¶50} In the case at bar, the trial court had the benefit of a pre-sentence 

investigation report. At the time of sentencing, Hayes entered a plea in Case No. 17CR11-

0274 to one count of Aggravated Possession of Drugs, a felony of the fifth degree in 

violation of R.C. 2925.11(A) and one count of Possession of Drug Abuse Instruments, a 

misdemeanor of the second degree in violation of R.C. 2925.12(A). 

{¶51} In its entry, the court noted the circumstances of Hayes’s conduct in 

connection with the crime “created a serious threat to the safety of the community in which 

the Defendant lives, and a threat to the safety of the law enforcement officers who were 

involved in her arrest.” At the sentencing hearing the court found that Hayes had allowed 

a known drug dealer to move into her house and had created a risk to the neighborhood 
Knox County, Case No. 18CA10 17 

and to law enforcement in apprehending him. (Sent. Tr. at 17-25). The court also note 

that Hayes committed the offense in Case No. 17CR11-0274 while awaiting trial on Case 

No. 17CR08-0172. (Sent. Tr. at 17:19-22). The court stated that Hayes was not amenable 

to community control and provided reasons. (Sent. Tr, at 16:1-18). The court noted that 

Hayes had been screened for treatment at the West Central Community Based 

Correctional Facility, but was combative with the Screener and stated that she did not 

need the help the CBCF could provide. (Id.) In sentencing the Defendant to prison, the 

trial court stated "I just don't know what else to do with you." (Id.) 

R.C. 2929.13(B). 

{¶52} R.C. 2929.13(B) applies to one convicted of a fourth or fifth degree felony. 

Hayes pled guilty to two felonies of the fifth degree. In relevant part the statute provides, 

 (B)(1)(a) Except as provided in division (B)(1)(b) of this section, if an 

offender is convicted of or pleads guilty to a felony of the fourth or fifth 

degree that is not an offense of violence or that is a qualifying assault 

offense, the court shall sentence the offender to a community control 

sanction or combination of community control sanctions if all of the following 

apply: 

 (i) The offender previously has not been convicted of or pleaded 

guilty to a felony offense. 

 (ii) The most serious charge against the offender at the time of 

sentencing is a felony of the fourth or fifth degree.

 (iii) If the court made a request of the department of rehabilitation and 

correction pursuant to division (B)(1)(c) of this section, the department, 
Knox County, Case No. 18CA10 18 

within the forty-five-day period specified in that division, provided the court 

with the names of, contact information for, and program details of one or 

more community control sanctions that are available for persons sentenced 

by the court. 

Emphasis added. R.C. 2929.13(B)(1)(b) further provides, 

 (b) The court has discretion to impose a prison term upon an offender 

who is convicted of or pleads guilty to a felony of the fourth or fifth degree 

that is not an offense of violence or that is a qualifying assault offense if any 

of the following apply: 

 (i) The offender committed the offense while having a firearm on or 

about the offender’s person or under the offender’s control. 

 (ii) If the offense is a qualifying assault offense, the offender caused 

serious physical harm to another person while committing the offense, and, 

if the offense is not a qualifying assault offense, the offender caused 

physical harm to another person while committing the offense. 

 (iii) The offender violated a term of the conditions of bond as set by 

the court.

 (iv) The court made a request of the department of rehabilitation and 

correction pursuant to division (B)(1)(c) of this section, and the department, 

within the forty-five-day period specified in that division, did not provide the 

court with the name of, contact information for, and program details of any 

community control sanction that is available for persons sentenced by the 

court. 
Knox County, Case No. 18CA10 19 

 (v) The offense is a sex offense that is a fourth or fifth degree felony 

violation of any provision of Chapter 2907. of the Revised Code. 

 (vi) In committing the offense, the offender attempted to cause or 

made an actual threat of physical harm to a person with a deadly weapon. 

(vii) In committing the offense, the offender attempted to cause or 

made an actual threat of physical harm to a person, and the offender 

previously was convicted of an offense that caused physical harm to a 

person. 

 (viii) The offender held a public office or position of trust, and the 

offense related to that office or position; the offender’s position obliged the 

offender to prevent the offense or to bring those committing it to justice; or 

the offender’s professional reputation or position facilitated the offense or 

was likely to influence the future conduct of others. 

 (ix) The offender committed the offense for hire or as part of an 

organized criminal activity. 

 (x) The offender at the time of the offense was serving, or the 

offender previously had served, a prison term. 

(xi) The offender committed the offense while under a community 

control sanction, while on probation, or while released from custody on a 

bond or personal recognizance. 

Emphasis added. 

{¶53} In the case at bar, Hayes was cited for two bond violations in this case while 

awaiting trial. Further, Hayes was indicted for two new criminal offenses in Case Number 
Knox County, Case No. 18CA10 20 

17CR11-0172, while awaiting trial on this case. Accordingly, the court had discretion to 

impose a prison term for the fifth degree felonies. 

{¶54} Accordingly, the trial court considered the purposes and principles of 

sentencing [R.C. 2929.11] as well as the factors that the court must consider when 

determining an appropriate sentence. [R.C. 2929.12]. The trial court has no obligation 

to state reasons to support its findings. 

{¶55} Upon review, we find that the trial court's sentencing on the charges 

complies with applicable rules and sentencing statutes. The sentence was within the 

statutory sentencing range. Furthermore, the record reflects that the trial court considered 

the purposes and principles of sentencing and the seriousness and recidivism factors as 

required in Sections 2929.11 and 2929.12 of the Ohio Revised Code. While Hayes may 

disagree with the weight given to these factors by the trial judge, Hayes’s sentence was 

within the applicable statutory range and therefore, we have no basis for concluding that 

it is contrary to law. 

{¶56} Hayes has failed to clearly and convincingly show that the trial court failed 

to consider the principles of felony sentencing, or that the aggregate sentence is 

otherwise contrary to law. 

{¶57} Hayes’s Third Assignment of Error is overruled. 
Knox County, Case No. 18CA10 21 

{¶58} The judgment of the Knox County Court of Common Pleas is affirmed. 

By Gwin, P. J., 

Wise, John, J., and 

Baldwin, J., concur