[Cite as State v. Lunn, 2021-Ohio-302.]

COURT OF APPEALS 

MUSKINGUM COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO JUDGES: 

 Hon. W. Scott Gwin, P.J. 

 Plaintiff-Appellee Hon. William B. Hoffman, J. 

 Hon. John W. Wise, J. 

-vs- 

 Case No. CT2020-0031 

NIKKI LUNN 

 

 Defendant-Appellant O P I N IO N 

 

CHARACTER OF PROCEEDINGS: Appeal from the Muskingum County 

Court of Common Pleas, Case No. 

CR2019-0696 

 

JUDGMENT: Affirmed 

 

DATE OF JUDGMENT ENTRY: February 3, 2021 

 

APPEARANCES: 

 

For Plaintiff-Appellee For Defendant-Appellant

 

D. MICHAEL HADDOX GERALD G. SIMMONS 

Prosecuting Attorney 536 S. High Street

Muskingum County, Ohio Columbus, Ohio 43215 

 

TAYLOR P. BENNINGTON 

Assistant Prosecuting Attorney 

Muskingum County, Ohio 

27 North Fifth Street 

P.O. Box 189 

Zanesville, Ohio 43702-0189 
Muskingum County, Case No. CT2020-0031 2 

Hoffman, J. 

{¶1} Defendant-appellant Nikki Lunn appeals the judgment entered by the 

Muskingum County Common Pleas Court convicting her of aggravated vehicular 

homicide (R.C. 2903.06(A)(2)(a)) and attempted vehicular assault (R.C. 2923.02(A), R.C. 

2903.08(B)(1)(c)) following her pleas of no contest, and sentencing her to an aggregate 

term of incarceration of ninety-six months. Plaintiff-appellee is the state of Ohio. 

STATEMENT OF THE FACTS AND CASE 

{¶2} On August 2, 2019, Appellant was traveling home from work on route 666 

in Muskingum County. While driving, she received a text message from her mother-inlaw, who was babysitting Appellant’s two children. The text message said Appellant’s 

one-year-old daughter was sick, and “The sooner you get here the better.” Appellant 

attempted to pass cars in front of her in a marked no passing zone. During her attempt 

to pass, she crashed into a motorcycle. A second motorcycle took evasive action, 

crashing as well. As a result of the crash, Dustin Spence was killed, and Dustin Phillis 

was seriously injured. Appellant had used marijuana earlier on the day of the crash. The 

accident report stated there was no sign of pre-crash braking by Appellant’s vehicle. 

{¶3} Appellant was indicted by the Muskingum County Grand Jury with two 

counts of aggravated vehicular homicide, one count of aggravated vehicular assault, and 

one count, of operating a motor vehicle under the influence of marijuana, one count of 

operating a motor vehicle with a prohibited amount of marijuana in her urine, and one 

count of operating a motor vehicle with a prohibited amount of marijuana metabolite in 

her urine. Appellant entered a plea of no contest to one count of aggravated vehicular 

homicide and one count of attempted vehicular assault, as amended from aggravated 

vehicular assault. The State agreed to nolle the remaining charges. 
Muskingum County, Case No. CT2020-0031 3 

{¶4} The case proceeded to a sentencing hearing in the Muskingum County 

Common Pleas Court. The trial court sentenced Appellant to sixty months incarceration 

for aggravated vehicular homicide and thirty-six months incarceration for attempted 

vehicular assault, to be served consecutively for an aggregate sentence of ninety-six 

months. It is from the May 7, 2020 judgment of the trial court Appellant prosecutes her 

appeal, assigning as error: 

 I. THE TRIAL COURT’S SENTENCE OF APPELLANT IS 

CONTRARY TO LAW IN CONTRAVENTION OF OHIO SENTENCING 

STATUTES. 

 II. THE TRIAL COURT ERRED BY IMPOSING AN EIGHT YEAR 

CONSECUTIVE SENTENCE IN VIOLATION OF THE EIGHTH 

AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE 

ONE (1) SECTION NINE (9) OF THE OHIO CONSTITUTION 

PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT. 

I. 

{¶5} In her first assignment of error, Appellant argues the maximum consecutive 

sentence of eight years as imposed by the trial court is contrary to law. She argues the 

trial court’s conclusion the accident was not a result of Appellant’s child’s illness is not 

supported by the record, and she demonstrated genuine remorse despite the trial court’s 

suggestion she refused to accept personal responsibility for the crash. She further argues 
Muskingum County, Case No. CT2020-0031 4 

the trial court should not have commented on her marijuana use, as her marijuana use 

was not a contributing factor to the accident. 

{¶6} 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. 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 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. 

State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.2d 659. 

{¶7} In State v. Gwynne, 5th Dist. Delaware No. 16 CAA 12 0056, 2017-Ohio7570, this Court reviewed an aggregate sentence of 65 years incarceration imposed on 

a 55-year-old former nurse’s aide for a variety of theft and burglary convictions arising out 

of her employment at a nursing home. While we found no error in the trial court’s findings 

regarding the necessity of imposing consecutive sentences pursuant to R.C. 

2929.14(C)(4), we concluded the record did not support the trial court’s aggregate 

sentence under R.C. 2929.11 and R.C. 2929.12, which govern the purposes of felony 

sentencing and the trial court’s weighing of the seriousness and recidivism factors in 

fashioning an appropriate sentence. In so concluding, this Court held as follows: 

 The sentence is an emotional response to very serious and 

reprehensible conduct. However, the understandably strong feelings must 

be tempered by a sanction clearly and convincingly based upon the record 

to effectuate the purposes of sentencing. The sentence imposed here does 
Muskingum County, Case No. CT2020-0031 5 

not do so. It is disproportionate to the conduct and the impact on any and 

all of the victims either individually or collectively. It runs the risk of lessening 

public respect for the judicial system. The imposition of a 65 year sentence 

for a series of non-violent theft offenses for a first-time felon shocks the 

consciousness. We therefore find by clear and convincing evidence that the 

record does not support the sentence. 

{¶8} Id. at ¶ 30. 

{¶9} However, this Court’s decision was reversed by the Ohio Supreme Court in 

State v. Gwynne, 158 Ohio St.3d 279, 2019-Ohio-4761, 141 N.E.3d 169 (2019). The 

Supreme Court held because Gwynne did not challenge any of her sentences individually, 

this Court erred in reviewing the aggregate sentence pursuant to R.C. 2929.11 and R.C. 

2929.12. Id. at ¶18. The Supreme Court noted Gwynne conceded the trial court made 

the requisite findings before imposing consecutive sentences, and thus the sole issue for 

this Court’s review was whether the record supported the trial court’s findings. Id. at ¶19. 

{¶10} Appellant makes no argument either of her individual sentences was 

contrary to law; rather, she argues the aggregate sentence of eight years is contrary to 

law. Therefore, pursuant to the Ohio Supreme Court’s decision in Gwynne, supra, we 

may only modify the sentence or remand for resentencing if we clearly and convincingly 

find the trial court’s consecutive sentencing findings, made pursuant to R.C. 

2929.14(C)(4), are not supported by the record. R.C. 2953.08(G)(2)(a). 

{¶11} R.C. 2929.14(C)(4) provides: 
Muskingum County, Case No. CT2020-0031 6 

 (4) If multiple prison terms are imposed on an offender for convictions 

of multiple offenses, the court may require the offender to serve the prison 

terms consecutively if the court finds that the consecutive service is 

necessary to protect the public from future crime or to punish the offender 

and that consecutive sentences are not disproportionate to the seriousness 

of the offender's conduct and to the danger the offender poses to the public, 

and if the court also finds any of the following: 

 (a) The offender committed one or more of the multiple offenses 

while the offender was awaiting trial or sentencing, was under a sanction 

imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised 

Code, or was under post-release control for a prior offense. 

 (b) At least two of the multiple offenses were committed as part of 

one or more courses of conduct, and the harm caused by two or more of 

the multiple offenses so committed was so great or unusual that no single 

prison term for any of the offenses committed as part of any of the courses 

of conduct adequately reflects the seriousness of the offender's conduct. 

 (c) The offender's history of criminal conduct demonstrates that 

consecutive sentences are necessary to protect the public from future crime 

by the offender. 

{¶12} In the instant case, the trial court found the imposition of consecutive 

sentences was necessary to protect the public from future crime or to punish Appellant, 

and consecutive sentences are not disproportionate to the seriousness of Appellant’s 
Muskingum County, Case No. CT2020-0031 7 

conduct and to the danger Appellant poses to the public. The court found at least two of 

the multiple offenses were committed as part of one or more courses of conduct, and the 

harm caused by two or more of the multiple offenses committed was so great or unusual 

that no single prison term for any of the offenses committed as part of the course of 

conduct adequately reflects the seriousness of Appellant’s conduct. 

{¶13} While Appellant expressed great remorse at the sentencing hearing for the 

death of Dustin Stevens and the injuries to Dustin Phillis, the trial court found she 

continued to refuse to take responsibility for the crash: 

 THE COURT: Again, that – that’s exactly the point I’m making, the 

lack of responsibility and remorse. I know you’re sorry that someone got 

injured and you’re sorry that someone has died. Absolutely I believe that. 

But the personal responsibility, I don’t see happening, because it was 

because of your child. And it wasn’t because of your child that this 

happened. 

{¶14} Sent. Tr. 30. 

{¶15} The trial court noted Appellant’s choices which led to the crash: she chose 

to continue driving rather than pull to the side of the road to call to check on her child and 

find out whether the illness was an emergency, and she chose to pass on a curve and a 

hill, where the road was marked as a no passing zone with a double yellow line. Sent. 

Tr. 27-28. The accident report found no evidence of pre-crash braking on the part of 

Appellant’s vehicle. Sent. Tr. 28. 
Muskingum County, Case No. CT2020-0031 8 

{¶16} Further, the trial court noted the number of letters he received from the 

surviving victim, as well as the family and friends of the deceased victim. The trial court 

quoted one letter which in the trial court’s opinion summed up the crash: 

 She says, I don’t consider it an accident. The steering wheel coming 

off while driving is an accident. This happened because someone made a 

choice. The choice to smoke weed before driving, not accidental. The 

choice to speed, not accidental. The choice to pass someone on a double 

yellow line, not accidental. These are all thoughts turned in to choices which 

then turned in to actions. Actions that robbed our family of our sweet Dustin. 

He was a son, brother, grandson, uncle, nephew, cousin and friend. 

{¶17} Sent. Tr. 31. 

{¶18} The trial court is in a better position than this court to assess whether 

Appellant’s remorse included an acknowledgement of her personal responsibility for the 

crash, and whether her actions were in fact motivated by an emergency involving her 

child. See, e.g., State v. Eckliffe, 11th Dist. Lake No. 2001-L-105, 2002-Ohio-7136, ¶ 32. 

{¶19} The trial court noted Appellant’s use of marijuana at several points in the 

sentencing hearing. Appellant conceded she smoked marijuana the morning of the 

accident, and the presentence investigation report set forth she smoked marijuana daily 

from the age of sixteen until she was arrested for the instant crimes in November of 2019. 

Sent. Tr. 19-20. Appellant argues the charges relating to driving under the influence of 
Muskingum County, Case No. CT2020-0031 9 

marijuana were dismissed as part of the plea agreement, and she had a pharmacologist 

who would have testified at trial marijuana was not a factor in this case. 

{¶20} A sentencing court may consider charges that have been dismissed or 

reduced pursuant to a plea agreement. State v. Parsons, 2013-Ohio-1281, 2013 WL 

1289523, ¶ 18, citing State v. Starkey, 7th Dist. No. 06MA110, 2007-Ohio-6702, 2007 WL 

4374457, ¶ 2; State v. Cooey, 46 Ohio St.3d 20, 35, 544 N.E.2d 895 (1989). In imposing 

sentence, the trial court can also take into consideration the fact the charges were 

reduced. Id. Furthermore, the trial court may consider uncharged crimes, as well as 

charges that are dismissed in a plea agreement, as factors at sentencing. State v. 

Starkey, 7th Dist. Mahoning No. 06 MA 110, 2007-Ohio-6702, ¶ 2. 

{¶21} While Appellant argues she would have presented evidence at trial her 

marijuana use played no role in the crash, such evidence is not part of the record before 

this Court on appeal. Appellant was charged not only with driving under the influence of 

marijuana, but also with one count of driving with a prohibited level of marijuana in her 

urine, as well as one count of driving with a prohibited level of a marijuana metabolite in 

her urine. She admitted to using marijuana at 8:00 a.m. on the day of the crash, with the 

crash occurring around 3:30 in the afternoon. The presentence investigation report 

further set forth she smoked marijuana daily from the age of sixteen until she was arrested 

on the charges arising out of the crash in November, 2019. We find the trial court could 

consider the evidence of her marijuana use in determining whether consecutive 

sentences were appropriate in the instant case. 
Muskingum County, Case No. CT2020-0031 10 

{¶22} Based on the record before this court, we do not clearly and convincingly 

find the trial court’s findings in support of its imposition of consecutive sentences are not 

supported by the record. 

{¶23} The first assignment of error is overruled. 

II. 

{¶24} In her second assignment of error, Appellant argues the imposition of an 

eight year aggregate sentence violates the constitutional prohibitions against cruel and 

unusual punishment set forth in the United States and Ohio Constitutions. 

{¶25} The Eighth Amendment to the United States Constitution prohibits 

“[e]xcessive” sanctions. It provides: “Excessive bail shall not be required, nor excessive 

fines imposed, nor cruel and unusual punishments inflicted.” Section 9, Article I of the 

Ohio Constitution sets forth the same restriction: “Excessive bail shall not be required; 

nor excessive fines imposed; nor cruel and unusual punishments inflicted.” 

{¶26} The Eighth Amendment does not require strict proportionality between 

crime and sentence, but only forbids extreme sentences which are grossly 

disproportionate to the crime. State v. Weitbrecht, 86 Ohio St.3d 368, 373, 715 N.E.2d 

167 (1999), quoting Harmelin v. Michigan, 501 U.S. 957, 1001, 111 S.Ct. 2680 (1991), 

(Kennedy, J., concurring in part and in judgment). A sentence does not violate the 

constitutional prohibition against cruel and unusual punishment unless the sentence is so 

grossly disproportionate to the offense as to shock the sense of justice in the community. 

State v. Chaffin, 30 Ohio St.2d 13, 59 O.O.2d 51, 282 N.E.2d 46 (1972). 

{¶27} Further, for purposes of the Eighth Amendment and Section 9, Article I of 

the Ohio Constitution, proportionality review should focus on individual sentences rather 
Muskingum County, Case No. CT2020-0031 11 

than on the cumulative impact of multiple sentences imposed consecutively. State v. 

Hairston, 118 Ohio St.3d 289, 888 N.E.2d 1073, 2008–Ohio–2338, ¶ 20. Where none of 

the individual sentences imposed on an offender are grossly disproportionate to their 

respective offenses, an aggregate prison term resulting from consecutive imposition of 

those sentences does not constitute cruel and unusual punishment. Id. As a general rule, 

a sentence that falls within the terms of a valid sentencing statute cannot constitute cruel 

and unusual punishment. Id. at ¶ 21. 

{¶28} Appellant does not challenge the sentencing statutes pursuant to which she 

was sentenced, nor does she argue she was not sentenced within a range permitted by 

statute. Further, Appellant’s challenge is to the cumulative impact of her consecutive 

sentences, which is not a proper consideration pursuant to Hairston, supra. We find 

Appellant has not demonstrated her sentence constitutes cruel and unusual punishment 

under the United States and Ohio Constitutions. 

 
Muskingum County, Case No. CT2020-0031 12 

{¶29} The second assignment of error is overruled. 

{¶30} The judgment of the Muskingum County Common Pleas Court is affirmed. 

By: Hoffman, J. 

Gwin, P.J. and 

Wise, John, J. concur