[Cite as State v. Wilson, 2013-Ohio-5195.]

 

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

HENRY COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 7-12-25 

 v. 

MICHAEL R. WILSON, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Henry County Common Pleas Court 

Trial Court No. 11-CR-0089 

Judgment Affirmed 

Date of Decision: November 25, 2013 

 

APPEARANCES: 

 

Robert E. Searfoss, III for Appellant 

J. Hawken Flanagan for Appellee 
Case No. 7-12-25 

-2- 

SHAW, J.

{¶1} Defendant-appellant Michael R. Wilson (“Wilson”) appeals the 

December 21, 2012, judgment entry of the Henry County Common Pleas Court 

sentencing Wilson to an aggregate prison term of 25 years following Wilson’s 

guilty pleas to five counts of Gross Sexual Imposition in violation of R.C. 

2907.05(A)(4)(C)(2), all felonies of the third degree. 

{¶2} The facts relevant to this appeal are as follows.1

 Over a period of time 

spanning roughly from February 2011 to November 2011, Wilson engaged in 

sexual contact with a 7-year-old girl.2

 The victim and her parents were living with 

Wilson at the time. When the victim’s parents were away on the weekends, 

Wilson would watch the victim and play “house” with her, engaging in sexual 

contact. 

{¶3} On November 30, 2011, Wilson was indicted for five counts of Gross 

Sexual Imposition in violation of R.C. 2907.05(A)(4)(C)(2), all felonies of the 

third degree, and one count of Rape in violation of R.C. 2907.02(A)(1), a felony of 

the first degree. All of the counts of Gross Sexual Imposition alleged that the 

victim was less than 13 years of age, and the single count of Rape alleged that the 

victim was, in fact, less than 10 years of age. (Id.) 

 

1

 The facts are compiled from the Indictment, the plea hearing, the sentencing hearing, and the pre-sentence 

investigation. 

2

 The pre-sentence investigation specifies that the victim in this case was 7 years old when the crimes took 

place. The record establishes that the victim was 8 years old during the court proceedings. 
Case No. 7-12-25 

-3- 

{¶4} On December 5, 2011, Wilson was arraigned and pled not guilty to the 

charges. (Doc. 10). 

{¶5} On April 16, 2012, Wilson filed a “Motion to Determine Competency 

of Alleged Victim.” (Doc. 26). 

{¶6} On April 27, 2012, a hearing was held to determine the victim’s 

competency. An interview was conducted with the victim, who was 8 years old at 

the time, and it was ultimately determined that the victim was competent, and that 

she would be permitted to testify at trial. (Doc. 32). 

{¶7} On October 10, 2012, a change-of-plea hearing was held wherein, 

pursuant to a written negotiated plea agreement, Wilson pled guilty to all five 

counts of Gross Sexual Imposition as charged in the indictment, and the State 

dismissed the Rape charge against Wilson. At the hearing, the court engaged in a 

Crim.R. 11 dialogue with Wilson and then ultimately accepted Wilson’s guilty 

pleas as knowingly, intelligently, and voluntarily entered. The trial court ordered 

a pre-sentencing investigation and set the matter for a sentencing/sex offender 

classification hearing. 

{¶8} On December 17, 2012, a sentencing/sex offender classification 

hearing was held. At the hearing, the trial court informed Wilson that he was 

designated as a Tier II sex offender. The court then proceeded to sentencing. 

During the sentencing hearing, the State argued that the victim of the crimes was 8 
Case No. 7-12-25 

-4- 

years old, that the victim had suffered significant psychological issues as a result 

of the crimes, and that Wilson’s relationship with the victim facilitated the offense. 

As a result, the State contended that Wilson should serve the maximum sentence 

on each of the five counts (5 years), and that those prison terms should run 

consecutively for an aggregate sentence of 25 years in prison. 

{¶9} Defense counsel then spoke in mitigation of sentence, stating that 

Wilson had no prior criminal history, that Wilson was abused as a child, that 

Wilson did not understand due to his prior abuse that what he was doing was 

wrong, and that Wilson fell apart after his wife died. (Dec. 17, 2012, Tr. at 7-10). 

Wilson then made a statement apologizing for what he had done. (Id. at 11-12). 

{¶10} Ultimately, the trial court sentenced Wilson to five years in prison on 

each count of Gross Sexual Imposition, to be served consecutively, for an 

aggregate prison sentence of 25 years. A judgment entry memorializing this 

sentence was filed December 21, 2012. (Doc. 53). 

{¶11} It is from this judgment that Wilson appeals, asserting the following 

assignment of error for our review. 

ASSIGNMENT OF ERROR 

THE TRIAL COURT ABUSED ITS DISCRETION 

SENTENCING APPELLANT TO THE MAXIMUM OF FIVE 

YEARS IN PRISON FOR FIVE CONSECUTIVE TERMS.

{¶12} In Wilson’s assignment of error, he argues that the trial court erred in 

sentencing him to the maximum prison term of five years on each of five counts of 
Case No. 7-12-25 

-5- 

Gross Sexual Imposition to be served consecutively for a prison term of 25 years. 

Specifically, Wilson contends that the trial court improperly weighed the 

mitigating factors of the seriousness of the offenses, and did not take “into account 

the other factors which pointed to an extreme unlikelihood of recidivism.” 

(Appt.’s Br. at 5). 

{¶13} A trial court’s sentence will not be disturbed on appeal absent a 

defendant's showing by clear and convincing evidence that the sentence is 

unsupported by the record; the sentencing statutes' procedure was not followed or 

there was not a sufficient basis for the imposition of a prison term; or that the 

sentence is contrary to law. E.g. State v. Woten, 3d. Dist. Allen No. 1-12-40, 

2013-Ohio-1394, ¶ 19; State v. Ramos, 3d Dist. Defiance No. 4–06–24, 2007–

Ohio–767, ¶ 23 (the clear and convincing evidence standard of review set forth 

under R.C. 2953.08(G)(2) remains viable with respect to those cases appealed 

under the applicable provisions of R .C. 2953.08(A), (B), and (C) * * *). Clear 

and convincing evidence is that “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, (1954), paragraph three of the syllabus. 

{¶14} A reviewing court must conduct a meaningful review of the trial 

court's imposed sentence. State v. Daughenbaugh, 3d Dist. No. 16-07-07, 2007-

Ohio-5774, ¶ 8, citing State v. Carter, 11th Dist. No.2003–P–0007, 2004-Ohio-
Case No. 7-12-25 

-6- 

1181. In particular, R.C. 2953.08(G)(2) provides the following regarding an 

appellate court's review of a sentence on appeal. 

(2) The court hearing an appeal * * * shall review the record, 

including the findings underlying the sentence or modification 

given by the sentencing court.

The appellate court may increase, reduce, or otherwise modify a 

sentence that is appealed under this section or may vacate the 

sentence and remand the matter to the sentencing court for 

resentencing. The appellate court's standard for review is not 

whether the sentencing court abused its discretion. The appellate 

court may take any action authorized by this division if it clearly 

and convincingly finds either of the following:

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

findings under division (B) or (D) 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.

{¶15} Revised Code Chapter 2929 governs sentencing. R.C. 2929.11 

provides, in pertinent part, that the “overriding purposes of felony sentencing are 

to protect the public from future crime and to punish the offender.” R.C. 

2929.11(A). In advancing these purposes, sentencing courts are instructed to 

“consider the need for incapacitating the offender, deterring the offender and 

others from future crime, rehabilitating the offender, and making restitution to the 

victim of the offense, the public, or both.” Id. Meanwhile, R.C. 2929.11(B) states 

that felony sentences must be both “commensurate with and not demeaning to the 
Case No. 7-12-25 

-7- 

seriousness of the offender's conduct and its impact upon the victim” and 

consistent with sentences imposed in similar cases. 

{¶16} In accordance with these principles, the trial court must consider the 

factors set forth under R.C. 2929.12(B), (C), (D), and (E) relating to the 

seriousness of the offender's conduct and the likelihood of the offender's 

recidivism. R.C. 2929.12(A). Revised Code section 2929.12(B) specifically lists 

sentencing factors that indicate an offender’s conduct is more serious than conduct 

normally constituting the offense, and provides, in pertinent part, as follows. 

(B) The sentencing court shall consider all of the following that 

apply regarding the offender, the offense, or the victim, and any 

other relevant factors, as indicating that the offender's conduct 

is more serious than conduct normally constituting the offense: 

(1) The physical or mental injury suffered by the victim of the 

offense due to the conduct of the offender was exacerbated 

because of the physical or mental condition or age of the victim. 

(2) The victim of the offense suffered serious physical, 

psychological, or economic harm as a result of the offense. 

* * * 

(6) The offender’s relationship with the victim facilitated the 

offense. 

Notably, although R.C. 2929.12 lists factors for the trial court to consider, the 

court is not required to make specific findings of its consideration of the factors. 

See State v. Kincade, 3d Dist. No. 16–09–20, 2010-Ohio-1497, ¶ 8. 
Case No. 7-12-25 

-8- 

{¶17} In this case, the trial court stated the following at the sentencing 

hearing. 

THE COURT: I will note there is no prior history; there is no 

prior criminal history here. The Court though, looks at these 

cases very, very, very seriously. I’ve taken into consideration the 

information I do receive in the pre-sentence investigation. I’ve 

read the report of Dr. Braum this morning and it did give me 

pause. I went back and looked at the criteria as set forth in the 

Revised Code of Ohio with regard to 2929.11 and 2929.12 as well 

as 2929.14 of the Revised Code and with regard to the sentence 

the Court will impose with regard to Counts 1, 2, 3, 4 and 5 

consecutive terms of 5 years on each count or 60 months I guess 

that is how it’s termed. 

(Dec. 17, 2012, Tr. at 14). Thus at the sentencing hearing, the trial court noted 

that it had considered the appropriate statutes and the pre-sentence investigation. 

The trial court’s judgment entry of sentence also reflected that it had considered 

the appropriate sentencing statutes, including R.C. 2929.12. (Doc. 53). 

{¶18} Wilson argues on appeal that the trial court improperly weighed the 

factors in R.C. 2929.12. Wilson contends that since he had no prior criminal 

history and since there was no showing that he had abused anyone other than the 

victim in this case, he was unlikely to recidivate. In addition, Wilson claims that 

he was abused as a child and that his abuse made it such that he did not understand 

his conduct was inappropriate, and therefore the trial court had “substantial 

grounds to mitigate [Wilson’s] conduct” under R.C. 2929.12(C)(4). 
Case No. 7-12-25 

-9- 

{¶19} Despite Wilson’s argument in mitigation of his sentence, several 

factors of R.C. 2929.12(B) were present in this case, elevating the offense in 

seriousness. First and foremost is the age of the victim, who was 7 years old at the 

time of the repeated abuses. R.C. 2929.12(B)(1). Second is the fact that both 

parties agree the young victim in this case suffered “serious psychological and 

physical harm.” (Dec. 17, 2012, Tr. at 7); R.C. 2929.12(B)(2). Third, the trial 

court could have considered the fact that Wilson occupied a position of trust with 

the victim as her babysitter and that Wilson repeatedly abused that trust for an 

extended period of months. R.C. 2929.12(B)(6). In fact, the pre-sentence 

investigation contains in the “Details of the Instant Offense” section that the 

sexual contact occurred “every weekend” after the victim’s family moved in with 

Wilson, which, according to the pre-sentence investigation, would have been 

“about 40 times.”

{¶20} Moreover, notwithstanding Wilson’s contention, there is simply no 

evidence in the record before us illustrating that Wilson was unable to understand 

that his conduct was wildly inappropriate and criminal. To the contrary, Wilson 

graduated high school and served in the United States Navy. He could read and 

write and had apparently raised a child with his now-deceased wife. There is 

nothing in the record to indicate a lack of mental awareness on the part of Wilson 

that what he was doing was a serious crime. However, even if the record had 
Case No. 7-12-25 

-10- 

contained some evidence to the contrary, the trial court still could have properly 

found, based on the factors outlined above in R.C. 2929.12(B), that the seriousness 

of the crime necessitated the sentence that was given. Accordingly, Wilson’s 

assignment of error is overruled. 

{¶21} For the foregoing reasons Wilson’s assignment of error is overruled 

and the judgment of the Henry County Common Pleas Court is affirmed. 

Judgment Affirmed 

PRESTON, P.J. and WILLAMOWSKI, J., concur. 

/jlr