[Cite as State v. Wright, 2020-Ohio-5195.]

 IN THE COURT OF APPEALS OF OHIO 

 FOURTH APPELLATE DISTRICT 

HIGHLAND COUNTY 

STATE OF OHIO, : 

Plaintiff-Appellee, : CASE NO. 20CA0005 

 

vs. : 

BENJAMIN J. WRIGHT, : DECISION AND JUDGMENT ENTRY 

 

 

Defendant-Appellant. : 

_________________________________________________________________ 

 APPEARANCES: 

Benjamin J. Wright, Marion, Ohio, pro se. 

Anneka P. Collins, Highland County Prosecuting Attorney, and Adam J. King, Highland County 

Assistant Prosecuting Attorney, Hillsboro, Ohio, for appellee. 

CRIMINAL APPEAL FROM COMMON PLEAS COURT 

DATE JOURNALIZED: 10-26-20 

ABELE, J. 

{¶ 1} This is an appeal from a Highland County Common Pleas Court judgment of 

conviction and sentence. Benjamin Wright, defendant below and appellant herein, pleaded guilty to 

one count of sexual battery and received a thirty-six-month prison sentence. Appellant assigns two 

errors for review: 

FIRST ASSIGNMENT OF ERROR: 

“THE TRIAL COURT ERRONEOUSLY USED AN ELEMENT OF 

APPELLANT’S CHARGE TO ELEVATE THE CRIME AND TO 

ELEVATE THE SERIOUSNESS TO IMPOSE A PRISON TERM.” 
HIGHLAND, 20CA05 2

SECOND ASSIGNMENT OF ERROR: 

“THE TRIAL COURT ERRED BY IMPOSING A THIRTY-SIX 

MONTH PRISON TERM THAT IS CLEARLY AND 

CONVINCINGLY NOT SUPPORTED BY THE RECORD.” 

{¶ 2} In September 2018, a Highland County Grand Jury returned an indictment that charged 

appellant with one count of sexual battery in violation of R.C. 2907.03(A)(5), a third-degree felony. 

The indictment charged that, from approximately May 2017 through January 2018, appellant 

engaged in sexual conduct with a child while appellant, a foster parent, was a person in loco parentis 

and the victim’s guardian. On January 25, 2019, appellant pleaded guilty to the charge in the 

indictment. 

{¶ 3} We derive the statement of facts that follows from appellant’s March 6, 2019 

sentencing hearing. Appellant, a foster parent, specifically requested that his victim, a foster child, 

be placed in his home. At the hearing, the prosecutor stated: 

The victim * * * was placed on a web page that advises adoptive parents of the 

availability of a child that’s ready to be placed in a forever home. 

The victim’s sexual orientation was on the web page, and [appellant] actually found 

him and sought him out, according to the victim’s caseworker, * * * and these are her 

words, ‘I couldn’t get the victim in his home fast enough for him. He called on a 

daily basis asking to have the victim placed in his home.’ And, the day after school 

ended for the victim, he was placed in that home, and within a month the sexual 

assaults began. 

 

Defense counsel related: 

I think I submitted to the PSI [pre-sentence investigation] some thirty (30) pages of 

letters. I’ve got about sixty (60) more pages. * * * I’ve read letters from people that 

say they’d trust their life with [appellant]; they’d trust their kids with [appellant]. 

[Appellant] has adopted [C] here, one of his foster kids. He’s fostered five (5) other 
HIGHLAND, 20CA05 3

children throughout his career. [Appellant] has helped other deaf kids in this 

community as a teacher.] 

The trial court stated: 

Well, the first thing the Court looks at in any case is what is the offense that is 

committed. And this is a sexual offense against a child victim. 

Now this particular child, he has had a rough life; has a lot of issues of his own; and 

those are well documented in the files, and I think were well known to the Defendant 

when he chose to apply to become the foster parent placement for adoption of this 

victim. 

Unfortunately, most of the cases that I see as a Judge, and I’ve seen in my career of 

almost 43 years now in this business, child victims are vulnerable. And those who 

have issues such as this child, are more vulnerable, and are often the objects of people 

who are seeking victims for this type of conduct. 

Now in your case, Mr. Wright, this is the only known victim. According to the 

report there wasn’t just one act, there was at least four (4) separate times that this 

occurred. And while there is, again, no confirmation or reports of any other victims, 

my forty-three (43) years of experience and doing lots of classes and educational 

courses on this subject, having been involved in hundreds, if not thousands of these 

types of cases, seldom do we have a perpetrator who has only offended against one 

victim, particularly child victims. 

It is very concerning to me that not only was this an act in which you were victimizing 

a child; but, that you actually sought to have this child come into your home. 

And your comments in the PSI to the Probation Officer, uh, while again you’re taking 

responsibility, and saying you understand your responsibility, uh, you almost seem to 

place some of the blame on this child. - And, again, it was not a forcible type of 

offense, it was the exploitation of a child with a lot of problems whose decision 

making has not always been the best in his own life. So, that’s what I have to look at. 

I take a very dim view of any child offense, sexual offense, against a child; and, I 

don’t think there is any reason to treat you any differently (referring to the fact that 

appellant, who had an interpreter present, is deaf). 

{¶ 4} The trial court thereupon ordered appellant to (1) serve thirty-six months in prison with 

five years of post-release control; and (2) register as a Tier III sex offender. This appeal followed. 
HIGHLAND, 20CA05 4

I. 

{¶ 5} Appellate review of felony sentences generally employ the standard of review set forth 

in R.C. 2953.08. State v. Prater, 4th Dist. Adams No. 18CA1069, 2019-Ohio-2745, at ¶ 12, citing

State v. Graham, 4th Dist. Adams No. 17CA1046, 2018-Ohio-1277, at ¶ 13. Under R.C. 

2953.08(G)(2), “[t]he appellate court’s standard of 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. 

“[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 a sentence if the court concludes, by clear and convincing evidence, the record does not 

support the sentence. State v. Bowling, 4th Dist. Jackson No. 19CA2, 2020-Ohio-813, ¶ 6. 

{¶ 6} In Ohio, two statutes, R.C. 2929.11 and 2929.12, serve as a general guide for every 

sentence. 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. R.C. 2929.11 sets forth the 

overriding purposes of felony sentencing: 
HIGHLAND, 20CA05 5

(A) A court that sentences an offender for a felony shall be guided by the overriding 

purposes of felony sentencing. The overriding purposes of felony sentencing are to 

protect the public from future crime by the offender and others, to punish the 

offender, and to promote the effective rehabilitation of the offender using the 

minimum sanctions that the court determines accomplish those purposes without 

imposing an unnecessary burden on state or local resources. To achieve those 

purposes, the sentencing court shall 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. 

(B) A sentence imposed for a felony shall be reasonably calculated to achieve the 

three overriding purposes of felony sentencing set forth in division (A) of this section, 

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. 

(C) A Court that imposes a sentence upon an offender for a felony shall not base the 

sentence upon the race, ethnic background, gender, or religion of the offender. 

R.C. 2929.12 establishes a non-exhaustive list of factors to consider in felony sentencing: 

(A) Unless otherwise required by section 2929.13 or 2929.14 of the Revised Code, a 

court that imposes a sentence under this chapter upon an offender for a felony has 

discretion to determine the most effective way to comply with the purposes and 

principles of sentencing set forth in section 2929.11 of the Revised Code. In 

exercising that discretion, the court shall consider the factors set forth in divisions (B) 

and (C) of this section relating to the serousness of the conduct, the factors provided 

in divisions (D) and (E) of this section relating to the likelihood of the offender’s 

recidivism, and the factors set forth in division (F) of this section pertaining to the 

offender’s service in the armed forces of the United States and, in addition, may 

consider any other factors that are relevant to achieving those purposes and principles 

of sentencing. 

 

(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: 

* * * 

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

* * * 

(8) In committing the offense, the offender was motivated by prejudice based on race, ethnic 

background, gender, sexual orientation, or religion. 
HIGHLAND, 20CA05 6

{¶ 7} 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, the R.C. 2929.12 seriousness and 

recidivism factors, properly applied post-release control, and imposed a sentence within the statutory 

range. State v. Prater, supra, at ¶ 20; State v. Graham, supra, at ¶ 16; State v. Perry, 4th Dist. Pike 

No. 16CA863, 2017-Ohio-69, ¶ 21; State v. Brewer, 2014-Ohio-1903, 11 N.E.3d 317, ¶ 38 (4th 

Dist.); State v. Bowling, supra, at ¶ 7. 

II. 

{¶ 8} In his first assignment of error, appellant asserts that the trial court erroneously used an 

element of appellant’s offense to elevate the seriousness of the crime. In particular, appellant argues 

that the trial court made two findings: (1) the offender’s relationship with the victim facilitated the 

offense under R.C. 2929.12(B), and (2) in committing the offense, the offender was motivated by 

prejudice based on race, ethnic background, gender, sexual orientation or religion under R.C. 

2929.12(B). Thus, appellant contends that his specific charge already accounted for his relationship 

with the victim, and, therefore, his conduct was not more serious than conduct that typically 

constituted the offense. 

{¶ 9} In the case sub judice, appellant pleaded guilty to sexual battery in violation of R.C. 

2907.03(A)(5), which provides “(A) No person shall engage in sexual conduct with another, not the 

spouse of the offender, when any of the following apply: * * * (5) The offender is the other person’s 

natural or adoptive parent, or a stepparent, or guardian, or person in loco parentis of the other 

person.” In its sentencing entry, the trial court addressed R.C. 2929.12(B)’s seriousness factors and 

made certain findings, including that appellant’s relationship with the victim facilitated the offense. 

{¶ 10} This court has previously recognized that a trial court “may not elevate the seriousness 
HIGHLAND, 20CA05 7

of an offense by pointing to a fact that is also an element of the offense itself.” State v. Sims, 4th 

Dist. Gallia No. 10CA17, 2012-Ohio-238, ¶ 16, quoting State v. Davis, 4th Dist. Washington No. 

09CA28, 2010-Ohio-555, ¶ 24, citing State v. Schlecht, 2d Dist. Champaign No. 2003-CA-3, 

2003-Ohio-5336, ¶ 52. In Sims, the trial court cited an element of Sims’ offense (using a knife) to 

justify its finding that Sims’ conduct was more serious than conduct normally constituting 

aggravated robbery. We vacated the sentence and concluded that “[u]nder the trial court’s 

reasoning, the seriousness of every aggravated robbery offense would automatically be elevated for 

sentencing purposes. Consequently, because the trial court based its justification on an element of 

the offense, the court abused its discretion when it found Sims’ offense to be more serious for 

sentencing purposes.” Sims, supra, at ¶ 19. 

{¶ 11} In Davis, supra, the defendant’s domestic violence conviction required the state to 

prove that the defendant knowingly caused or attempted to cause physical harm to “a family or 

household member.” Davis at ¶ 24, citing R.C. 2919.25(A). At sentencing, the trial court found 

the offense more serious for sentencing purposes because the defendant’s relationship with the 

victim, his wife and mother of his children, facilitated the offense. Id. at ¶ 25. This court 

determined that the victim did not “[have] any relationship beyond that required for his domestic 

violence convictions, i.e., [the victim] was [the defendant’s] wife/mother of his children and lived 

with him.” Id. We held that “[e]ven though [a trial court] has discretion in choosing an appropriate 

sentence, when a court considers an improper sentencing factor, it has committed an abuse of 

discretion.” Id.; State v. Lucas, 4th Dist. Washington No. 09CA21, 2010-Ohio-2575, ¶ 21 (“As was 

the case in Davis, here there is no evidence that Lucas had any relationship with [the victim] beyond 

that which was necessary for a domestic violence conviction - that is, she was his wife and they 
HIGHLAND, 20CA05 8

resided or had resided with each other.”). See also Schlecht at ¶ 52 (“Because a sale or offer to sell 

is part of the elements of the charged offense, the same conduct cannot also be an aggravating 

circumstance justifying a greater than minimum sentence.”); State v. Stroud, 7th Dist. Mahoning No. 

07 MA 91, 2008-Ohio-3187, ¶ 52 (“the trial court found that Stroud committed the worst form of the 

offense, in part, because ‘a life was taken’ and did not explain how this was something more than an 

element of the offense. This fact is present in every case where a court is sentencing an offender for 

a voluntary manslaughter and highlighting this fact does not show why this particular case is a more 

serious form of that offense.”); State v. Smith, 8th Dist. No. 85245, 2005-Ohio-3836, ¶ 17-18 (“the 

trial court’s sentence * * * was improper” because “the trial court used the elements of the offense 

itself to enhance the penalty.”). 

{¶ 12} In State v. Polizzi, 11th Dist. Lake Nos. 2018-L-063, 2018-L-064, 2019-Ohio-2505, 

the defendant pleaded guilty to two counts of gross sexual imposition and six counts of sexual 

battery. Id. at ¶ 6. The defendant was a teacher to the victims, a necessary element of his 

convictions under R.C. 2907.03(A)(7). Id. at ¶ 28. The Eleventh District concluded that the 

relationship between the offender and victim had been “accounted for by the legislature when it 

established most of these offenses [R.C. 2907.03] as felonies of the third degree.” Id. The court 

determined that the defendant’s “sentences for sexual battery should not be elevated based on his 

status as a teacher to the victims.” Id.

{¶ 13} Subsequently, the Eleventh District limited the Polizzi holding to consecutive 

sentencing findings. The court declined to apply Polizzi to the argument made here - that the record 

does not support the trial court’s R.C. 2929.12 seriousness findings. See State v. Banas, 11th Dist. 

Lake No. 2019-L-049, 2019-Ohio-5053, ¶ 25 (“The holding in Polizzi was that the trial court’s 
HIGHLAND, 20CA05 9

consecutive sentence findings under R.C. 2929.14(C)(4) were clearly and convincingly not supported 

by the record. We decline to apply that holding to appellant’s argument here that the trial court’s 

seriousness findings under R.C. 2929.12 are not supported by the record.”); State v. Anthony, 11th 

Dist. Lake No. 2019-L-045, 151 N.E.3d 13, 2019-Ohio-5410, ¶ 92; State v. Rutherford, 11th Dist. 

Lake No. 2020-L-033, 2020-Ohio-3934, ¶ 9. 

{¶ 14} The Eleventh District also noted that “[c]ourts have limited the ‘elements of the 

offense’ case law to situations where the only factor supporting a maximum sentence is a factor that 

is also an element of the offense.” State v. Russell, 11th Dist. Lake No. 2019-L-138, 

2020-Ohio-3243, ¶ 94, citing State v. Hardin-Moore, 2d Dist. Montgomery No. 24237, 

2011-Ohio-4666, ¶ 22. Moreover, the application of R.C. 2929.12(B)(6) requires that the offender’s 

relationship to the victim make the commission of the offense easier, where R.C. 2907.03(A)(5) only 

requires the existence of the parental role and does not address how that role facilitated the offense. 

Russell, supra, at ¶ 92. Therefore, the court concluded that the trial court’s determination under 

R.C. 2929.12(B)(6) extended beyond the “in loco parentis” element of sexual battery under R.C. 

2907.03(A)(5). Id.

{¶ 15} In the case sub judice, we believe that the trial court’s R.C. 2929.12(B)(6) 

determination extended beyond the R.C. 2907.03(A)(5) sexual battery element. Here, the court did 

not simply consider appellant’s foster parent status as a seriousness factor. Rather, the record shows 

the trial court’s concern that appellant knew of the victim’s sexual orientation and urgently sought 

him out. At sentencing, appellee relayed the caseworker’s statements: “I couldn’t get the victim in 

his [appellant’s] home fast enough for him. He called on a daily basis asking to have the victim 

placed in his home.” These facts indicate more than appellant’s status as a foster parent, an element 
HIGHLAND, 20CA05 10

of sexual battery under R.C. 2907.03(A)(5). Instead, these facts indicate appellant’s premeditation 

to use his foster parent role as a tool to facilitate the offense. Thus, we conclude that the trial court 

did not use an element of appellant’s offense to elevate the seriousness of appellant’s offense at 

sentencing, and the record supports the trial court’s finding that appellant’s relationship with the 

victim facilitated the offense under R.C. 2929.12(B)(6). 

{¶ 16} Accordingly, based on the foregoing reasons, we overrule appellant’s first assignment 

of error. 

III. 

{¶ 17} In his second assignment of error, appellant asserts that the trial court erred by 

imposing a thirty-six-month prison term. 

{¶ 18} To determine whether a sentence is contrary to law, “[t]he only specific guidelines is 

that the sentence must be within the statutory range[.]” State v. Sims, supra, at ¶ 11, quoting State v. 

Welch, 4th Dist. Washington No. 08CA29, 2009-Ohio-2655, ¶ 7, quoting State v. Ross, 4th Dist. 

Adams No. 08CA872, 2009-Ohio-877, ¶ 10. Here, appellant does not argue that the trial court 

failed to sentence him to a term within the permissible range, a range of twelve to sixty months. 

R.C. 2929.14(A)(3)(a). Thus, because appellant’s prison term is within the permissible range, we 

must consider whether the sentence is clearly and convincingly not supported by the record. State v. 

Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 23. 

{¶ 19} As stated above, courts must consider the general guidance factors outlined in R.C. 

2929.11 and 2929.12; Sims, supra at ¶ 12; Davis, at ¶ 33. R.C. 2929.11 and R.C. 2929.12 require a 

trial court to “consider” certain statutory factors in imposing a felony sentence. This instruction 

within R.C. 2929.11 and R.C. 2929.12 is distinct from an instruction to “determine on the record” or 
HIGHLAND, 20CA05 11

to “find” the existence of specific statutory criteria before imposing a sentence. State v. Seaman, 7th 

Dist. Mahoning No. 18 MA 0103, 2019-Ohio-2709, ¶ 20, comparing R.C. 2929.13(E)(3) 

(community control violation solely due to positive drug test); R.C. 2929.14(C)(4)(consecutive 

sentencing). Further, even in the case of a completely silent record (where there is no mention of 

R.C. 2929.11 purposes and principles of sentencing or R.C. 2929.12 seriousness or recidivism 

factors in the judgment entry or at the hearing), we do not presume the court failed to consider these 

items. Seaman, id.

{¶ 20} Here, the trial court did not state at the hearing that it had considered R.C. 2929.11 or 

R.C. 2929.12. However, the court’s sentencing entry did indicate that the trial court considered 

R.C. 2929.11 and R.C. 2929.12. See State v. Lancaster, 12th Dist. Butler No. CA 2007-03-075, 

2008-Ohio-1665, ¶ 4; State v. Todd, 10th Dist. Franklin No. 06AP-1208, 2007-Ohio-4307, ¶ 15-16 

(trial court’s entry states that the court considered R.C. 2929.11 and R.C. 2929.12 and this language 

in a sentencing entry is sufficient by itself to overcome a defendant’s claim that the trial court did not 

consider the two statutes). In the case at bar, we again point out that the trial court included this 

language in the sentencing entry. Thus, we conclude that the trial court appropriately considered the 

R.C. 2929.11 principles and 2929.12 factors. 

{¶ 21} Appellant further argues that the record does not support the trial court’s R.C. 

2929.12(B)(8) finding that appellant was motivated by prejudice based on sexual orientation in 

committing the offense. In particular, appellant cites State v. Brown, 11th Dist. Lake No. 

2014-L-075, 2015-Ohio-2897, in which Brown pleaded guilty to kidnapping and two counts of 

felonious assault. The trial court found Brown’s offenses were motivated by prejudice based on 

gender under R.C. 2929.12(B)(8). Id. at ¶ 37. Appellant cites to a concurrence in Brown that 
HIGHLAND, 20CA05 12

stated, “[t]his writer does not feel that the crimes committed by appellant qualify as a hate crime or a 

gender-based crime. The victim was not selected by appellant due to her gender. She was 

‘selected’ as a function of unfortunately being involved in a relationship with appellant. As such 

there is insufficient evidence in the record to find that appellant was motivated by gender-bias.” Id.

at ¶ 51. First, we point out that Brown did conclude that the record supported the R.C. 

2929.12(B)(8) finding. Second, the facts here reveal that appellant selected the victim due to his 

gender. Therefore, we believe that the record supports the court’s R.C. 2929.12(B)(8) finding. 

{¶ 22} As appellee points out, the trial court’s sentencing entry in the case at bar states, “[t]he 

Court has considered the record, oral statements, any victim impact statements, and pre-sentence 

report if ordered, as well as all factors required by Section 2929.12 ORC.” Further, the entry states, 

“[a]fter weighing all of the these factors and the purposes and principles of Section 2929.11 ORC, 

the Court finds the offender is not amenable to available community sanctions and that a prison term 

is appropriate.” 

{¶ 23} Our review of the record in the case sub judice reveals that the trial court explained 

the basis for imposing a term of incarceration, and properly considered the R.C. 2929.11 purposes 

and principles of felony sentencing and the R.C. 2929.12 factors. Therefore, we conclude that the 

trial court’s sentence is not clearly and convincingly contrary to law. 

{¶ 24} Accordingly, based on the foregoing reasons, we overrule appellant’s second 

assignment of error and affirm the trial court’s judgment. 

JUDGMENT AFFIRMED. 
HIGHLAND, 20CA05 13

JUDGMENT ENTRY 

It is ordered that the judgment be affirmed and that appellee recover of 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 Highland 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 sixty 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 sixty day period, 

or the failure of the appellant to file a notice of appeal with the Supreme Court of Ohio in the 

forty-five 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 

sixty 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. 

Smith, P.J. & Hess, J.: Concur in Judgment & Opinion 

For the Court 

BY: 

 Peter B. Abele, Judge 

 

 
HIGHLAND, 20CA05 14

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.