[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 Count y Prosecuting Attorney, and Ad am J. King, Highland County Assistant Prosecuting Attorn ey, 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 jud gment of conviction and sentence. Benjamin Wright, defendant below and appellant herein, pleaded guilty to one count of sexual battery and r eceived a thirty-six-month pri son 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 ind ictment 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 throug h January 2018, appellant engaged in sexual conduct with a child while appellant, a foste r parent, was a person in loco parentis and the victim’s guardian. O n January 25, 2019, appellant plea ded 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 r equested that his victim, a foster child, be placed in his home. At the hear ing, the prosecutor stated: The victim * * * was placed on a web page that a dvises adoptive parents of the availability of a chil d that’s ready to be placed in a forever home. The victim’s sexual orientation was on the web page, and [appel lant] actually found him and sought him out, accordin g to the victim’s caseworker, * * * and these are her words, ‘I couldn’t get the victim in his home fast enough for h im. 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] som e thirty (30) pages of letters. I’ve got about sixty (60) more pages. * * * I’ve rea d letters from people that say they’d trust their life wit h [appellant]; they’d trust thei r kids with [appellant]. [Appellant] has adopted [C] here, one of his foster kids. He’s fostered five (5) otherHIGHLAND, 20CA05 3 children throughout his career. [A ppellant] has helped other de af 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 o ffense against a child victim

. Now this particular child, he has had a rough life; has a lot o f issues of his own; and those are well documented in the files, and I think were well k nown to the Defendant when he chose to apply to become the foster parent placement fo r adoption of this victim. Unfortunately, most of the cases that I see as a Judge, and I’v e seen in my career of almost 43 years now in this business, child victims are vulnera ble. And those who have issues such as this child, are more vulnerable, and are of ten the objects of people who are seeking victims f or this type of conduct. Now in your case, Mr. Wright, this is the only known victim. A ccording to the report there wasn’t just one act, there was at least four (4) s eparate times that this occurred. And while there is, aga in, no confirma tion or report s of any other victims, my forty-three (43) years of exp erience and doing lots of class es and educational courses on this subject, having been involved in hundreds, if n ot thousands of these types of cases, seldom do we hav e a perpetrator who has only of fended against one victim, particular ly child victims. It is very concerning to me th at not only was this an act in wh ich you were victimizing a child; but, that you actually s ought to have this child come into your home. And your comments in the PSI t o the Probation Officer, uh, whil e 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 probl ems 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, ag ainst a child; and, I don’t think there is any reason to treat you any differently (r eferring to the fact that appellant, who had an i nterpreter presen t, is deaf).

{¶ 4} The trial court thereupon ordere d appellant to (1) serve thirty -six months in prison with five years of post-rel ease 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 stand ard 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 cour t’s standard of review is n ot whether the sente ncing 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 th e court clearly and convincingly

finds either: (a) That the record does not suppor t the sentencing court’s fin dings under division (B) or (D) of section 2929.13, divisi on (B)(2)(e) or (C)(4) of sect ion 2929.14, or division (I) of section 2929.20 of the Revise d Code, whichever, if any, is relevant; (b) That the sentence is ot herwise contrary to law. “[C]lear and convincing evidence is that measure or degree of p roof 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 f acts sought to be established.” Cross v. Ledford , 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph th ree of the syllabus. Thus, an appellate court may vacate or modify a sentence if the court concludes, by clear and convinci ng 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 gen eral 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 gu ided by the overriding purposes of felony sentencing. T he overriding purposes of felo ny sentencing are to protect the public from future c rime by the offender and others , to punish the offender, and to promote the effective rehabilitation of the of fender using the minimum sanctions that the court determines accomplish those pu rposes without imposing an unnecessary burden on state or local resources. To achieve those purposes, the sentencing court sh all consider the need for inca pacitating the offender, deterring the offender and others from future crime, rehabilita ting the offender, and making restitution to the victim of the offense, the public, or both. (B) A sentence imposed for a f elony shall be reasonably calcula ted to achieve the three overriding purposes of fel ony sentencing set forth in div ision (A) of this section, commensurate with and not demeanin g to the seriousness of the o ffender’s conduct and its impact upon the victim, and consistent with sentences i mposed for similar crimes committed by s imilar offenders. (C) A Court that imposes a sen tence upon an offender for a felo ny shall not base the sentence upon the race, ethnic b ackground, gender, or religion of the offender.

R.C. 2929.12 establishes a non-exhaus tive list of factors to co nsider in felony sentencing: (A) Unless otherwise require d by section 2929.13 or 2929.14 of the Revised Code, a court that imposes a sentence under this chapter upon an offend er for a felony has discretion to determine the most effective way to comply with t he purposes and principles of sentencing set f orth in section 2929.11 of the Re vised Code. In exercising that discretion, the court shall consider the factor s set forth in divisions (B) and (C) of this section relatin g to the serousness of the condu ct, the factors provided in divisions (D) and (E) of this section relating to the likeli hood of the offender’s recidivism, and the factors set forth in division (F) of this s ection 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 c onsider all of the following th at apply regarding the offender, the offense, or the victim, and any other relevant fa ctors, as indicating that the offender’s conduct is more serious than conduc t normally co nstituting the offense:

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

* * * (8) In committing the offense, the offender was motivated by pr ejudice based on race, ethnic background, gender, sexual or ientation, or religion.HIGHLAND, 20CA05 6 {¶ 7} This court has held that, gener ally, a sentence is not contrary to law if a trial court considered the R.C. 2929.11 purposes and principles of sentenci ng, the R.C. 2929.12 seriousness and recidivism factors, properly a pplied 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 tr ial court errone ously used an element of appellant’s offense t o elevate the ser iousness of th e crime. In particul ar, appellant argues

that the trial court made two f indings: (1) the offender’s rel ationship with the victim facilitated the offense under R.C. 2929.12(B), and (2) in committing the offens e, the offender was motivated by prejudice based on race, ethnic background, gender, sexual orie ntation 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 serio us than conduct that typically

constituted the offense. {¶ 9} In the case sub judice, appellant pleaded guilty to sexual batt ery in violation of R.C. 2907.03(A)(5), which provides “(A) No person shall engage in se xual 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 pe rson 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 recogniz ed that a trial court “may no t elevate the seriousnessHIGHLAND, 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 kni fe) to justify its finding that Sims’ conduct was more serious than co nduct normally constituting aggravated robbery. We vacated t he sentence and concluded that “[u]nder the trial court’s reasoning, the seriousness of e very aggravated robbery offense would automatically be elevated for sentencing purposes. Consequently, because the trial court bas ed 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 viole nce conviction required the sta te to prove that the defendant knowingl y 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 cou rt found the offense more serious for sentencing purposes because the de fendant’s relationship with the victim, his wife and mother of his children, facilitated the of fense. Id. at ¶ 25. This court determined that the victim did not “[have] any relationship bey ond 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] ha s 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 wa s 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 - t hat is, she was his wife and theyHIGHLAND, 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 conduc t 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 (“th e trial court found that Str oud committed the worst form of the offense, in part, because ‘a life was taken’ and did not explai n how this was something more than an element of the offense. This fact is present in every case whe re a court is sentencing an offender for a voluntary manslaughter and highlighting this fact does not sh ow 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 c ourt 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 impo sition and six counts of sexual battery. Id. at ¶ 6. The defendant was a teacher to the victims, a necessa ry element of his convictions under R.C. 2907.03(A)(7). Id. at ¶ 28. The Eleventh Dist rict concluded that the relationship between the offende r and victim had been “accounte d for by the legislature when it established most of these offenses [R.C. 2907.03] as felonies o f the third degree.” Id. The court

determined that the defendant’s “sentences for sexual battery s hould 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 cour t’s R.C. 2929.12 seriousness fin dings. See State v. Banas , 11th Dist. Lake No. 2019-L-049, 2019-Ohio-5053, ¶ 25 (“The holding in Polizzi was that the trial court’sHIGHLAND, 20CA05 9 consecutive sentence findings under R.C. 2929.14(C)(4) were cle arly 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 th e 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 th e ‘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, t he application of R.C. 2929.1 2(B)(6) requires that the offender’s relationship to the victim make the commission of the offense e asier, where R.C. 2907.03(A)(5) only requires the existence of the p arental role and does not addres s 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” eleme nt 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 extende d beyond the R.C. 2907.03(A)(5) sexual bat tery element. Here, the court did not simply consider appellant’s fos ter parent status as a serio usness factor. Rather, the record shows the trial court’s concern that appellant knew of the victim’s s exual orientation and urgently sought him out. At sentencing, appell ee relayed the caseworker’s stat ements: “I couldn’t get the victim in his [appellant’s] home fast enough for him. He called on a dai ly basis asking to have the victim placed in his home.” These facts indicate more than appellant’ s status as a foster parent, an elementHIGHLAND, 20CA05 10 of sexual battery under R.C. 2907.03(A)(5). Instead, these fac ts indicate appellant’s premeditation to use his foster parent role as a tool to facilitate the offen se. Thus, we conclude t hat the trial court did not use an element of appella nt’s offense to elevate the se riousness of appellant’s offense at sentencing, and the record suppor ts the trial court’s finding t hat appellant’s rela tionship with the

victim facilitated the offe nse under R.C. 2929.12(B)(6). {¶ 16} Accordingly, based on the foregoing reasons, we overrule appell ant’s first assignment

of error.

III. {¶ 17} In his second assignment of erro r, appellant asserts that the t rial 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 with in 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 n ot 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 i s within the permissible range, we

must consider whether the sente nce 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 fact ors 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 instru ction to “determine on the record” orHIGHLAND, 20CA05 11 to “find” the existence of speci fic statutory criteria before i mposing 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 pre sume 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 indica te 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 tha t the court considered R.C. 2929 .11 and R.C. 2929.12 and this language in a sentencing entry is suffici ent by itself to overcome a def endant’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 t rial court appropriate ly considered the R.C. 2929.11 principles and 2929.12 factors. {¶ 21} Appellant further argues that t he record does not support the t rial 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 ki dnapping and two counts of

felonious assault. The trial cour t 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 thatHIGHLAND, 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 d ue to her gender. She was

‘selected’ as a function of unfor tunately being involved in a r elationship with appellant. As such there is insufficient evidence in the record to find that appel lant 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 appe llant selected the victim due to his gender. Therefore, we believe t hat the record supports the cou rt’s R.C. 2929.12(B)(8) finding. {¶ 22} As appellee points out, t he trial court’s sentencing entry in t he case at bar states, “[t]he Court has considered the record, oral statements, any victim im pact statements, and pre-sentence report if ordered, as well as a ll factors required by Section 2 929.12 ORC.” Further, the entry states, “[a]fter weighing all of the t hese factors and the purposes and principles of Section 2929.11 ORC,

the Court finds the offender is not amenable to available commu nity sanctions and that a prison term is appropriate.” {¶ 23} Our review of the record in the case sub judice reveals that th e trial court explained the basis for imposing a term o f incarceration, and properly co nsidered the R.C. 2929.11 purposes and principles of felony sente ncing and the R.C. 2929.12 factor s. Therefore, we conclude that the

trial court’s sentence is not c learly and convincingly contrary to law. {¶ 24} Accordingly, based on the foregoing reasons, we overrule appell ant’s second assignment of error and affirm t he trial court’s judgment.

JUDGMENT AFFIRMED.HIGHLAND, 20CA05 13

JUDGMENT ENTRY It is ordered that the judgment be affirmed and that appellee r ecover of appellant the costs herein taxed.

The Court finds there were reas onable grounds for this appeal. It is ordered that a special m andate issue out of this Court di recting the Highland County Common Pleas Court to carry t his judgment into execution. If a stay of execution of sente nce and release upon bail has be en previously granted by the trial court or this court, it is temporarily continued for a pe riod 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 earli er 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 Supr eme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will ter minate as of the date of such dism issal. A certified copy of this entry shall constitute that mandate pu rsuant to Rule 27 of the Rules of Appellate Procedure. Smith, P.J. & Hess, J.: Conc ur in Judgment & Opinion

For the Court

BY: Peter B. Abele, JudgeHIGHLAND, 20CA05 14

NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a fina l judgment entry and the time period for further app eal commences from th e date of filing wit h the clerk.