[Cite as State v. Denoyer , 2021-Ohio-886.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY

STATE OF OHIO, PLAINTIFF-APPELLEE, CASE NO. 1-20-34

v. ANTHONY J. DENOYER, O P I N I O N

DEFENDANT-APPELLANT.

Appeal from Allen County Common Pleas Court Trial Court No. CR 2019 0435 Judgment Affirmed Date of Decision: March 22, 2021

APPEARANCES: 

### William T. Cramer for Appellant 

### Jana E. Emerick for AppelleeCase No. 1-20-34

-2- SHAW, J. {¶1} Defendant-appellant, Anthony Denoyer (“Denoyer”), brings this a ppeal from the August 11, 2020 judgment of the Allen County Common Pl eas Court sentencing him to an aggregate indefinite prison term of a mini mum of 32 years to a maximum of 36 years. On appeal, Denoyer argues that 3 of the 4 felonious assault charges to which he pled guilty should have merged for the purp oses of sentencing, that the record did not support maximum prison terms on each of the felonious assault convictions, and that the record did not support consec utive sentences. Background {¶2} Denoyer is the father of G.M., who was born in August of 2019. On October 29, 2019, police were contacted by St. Rita’s Medical C enter with regard to G.M. having multiple skull fractures, a brain bleed, several fractured ribs, and a fractured femur. The injuries were life-threatening. An inves tigation established that G.M. was in Denoyer’s care when she was injured, and Denoy er later made admissions that he caused the injuries. {¶3} On December 12, 2019, Denoyer was indicted on four counts of felonious assault in violation of R.C. 2903.11(A)(1), all felon ies of the second degree, and four counts of endangering children in violation of R.C. 2919.22(B)(1), all felonies of the second degree. Two of the felonious assaul t counts in the indictment, specifically counts 1 and 3, carried specifications pursuant to R.C.Case No. 1-20-34

-3- 2941.1426 alleging that the felonious assaults perpetrated by D enoyer against G.M. resulted in “permanent disabling harm,” and that G.M. was less than ten years old. G.M. was, in fact, less than three months old. 1 Denoyer originally pled not guilty to the charges. {¶4} On June 22, 2020, Denoyer entered into a written negotiated ple a agreement wherein he agreed to plead guilty to the four counts of felonious assault in the indictment. In exchange, the State agreed to dismiss th e four endangering children charges, the two “permanent disabling harm” specificat ions attached to two of the felonious assault counts, and a separate pending crimina l case against Denoyer that alleged Denoyer had committed, inter alia , grand theft of a motor

vehicle. 2 {¶5} A change-of-plea hearing was held wherein the plea agreement wa s recited to the trial court. At the time that the State recited the agreement to the trial court, the State emphasized that it would be arguing at sentenc ing, specifically contending that the felonious assault counts would not merge du e to the disparate injuries to various parts of the infant’s body, due to some of the injuries being in different stages of healing, and due to Denoyer’s admission to five to seven acts of

1 Six of the eight counts—three felonious assaults and three end angering children—alleged that the incidents occurred on or about October 28, 2019. The remaining two count s—one felonious assault and one endangering children—alleged that the incidents occurred on or about October 22, 2019, through October 28, 2019. 2 The record from the separate trial court case that was dismiss ed pursuant to the plea agreement is not before us, thus we take this information from the written plea agreeme nt and from statements made at the plea hearing.Case No. 1-20-34

-4- violence against the child. After the plea agreement was recit ed, the trial court conducted a Crim.R. 11 hearing wherein Denoyer knowingly, intel ligently, and voluntarily waived his rights and entered his pleas pursuant to the agreement. Sentencing was set for a later date. {¶6} Prior to the sentencing hearing the State filed a brief outlini ng its argument that the felonious assault counts should not merge. F irst, the State noted that Denoyer had given two interviews in this matter. During t he first interview, when Denoyer was confronted with G.M.’s injuries, Denoyer claim ed that he had “blackouts” and was told by others that he got violent during t hose episodes. He also claimed that he tripped with G.M. once and she hit her hea d on a table. Further, he stated that a month prior he picked G.M. up too hard and bro ke her rib, hearing it pop. In addition, he admitted to striking G.M. in the head on purpose, describing five episodes where he struck her to keep her awake. {¶7} In a second interview, Denoyer admitted to repeatedly abusing G .M. since her birth. He admitted to beating or assaulting G.M. fiv e to seven times with the most recent being on October 28, 2019. He admitted to punc hing her, shaking her, and squeezing her so hard that he heard ribs pop. He also admitted to picking up G.M. by the l eg whe n she was “fussing” caus ing the femur to fracture. Further, he admitted to punching G.M.’s head hard enough to make her hea d “soft.” (Doc. 89).Case No. 1-20-34

-5- {¶8} The State’s sentencing brief then detailed the medical evidence related to G.M. that would have been presented at trial as follows. Upon examination of GM, Dr. Jennifer T[.] of Nationwide Children’s Hospital in Columbus described various rib fractures as acute (within seven days [of] presentation), and non acute o r healing. Two of eighteen rib fractures were acute and occurred within the seven day period of the 10-29-19 admission. The sixteen older rib fractures (symptomatic) cannot be more specifically dated but would have occurred in the ten week peri od from the date of birth (8-5-19) to seven days before the date o f admission on 10-29-19, or 10-22-19. The older fractures were variously callused and in stages of healing, as evidenced on a CT scan. A chest CT scan was completed, and a reconstruction image was also completed. Nationwide doctors would opine that the fractures were consistent with the abdominal squeezing related to them, as admitted by the Defendant. The imaging is available through Children’s Health Information Management and can be enhanced to pinpoint fractures by radiologist Dr. Cody Y[.] Dr. T[.] noted two types of cranial injuries. One of the injuries was shearing, caused by shaking or violent acceleration/deceleration. (Note-Defendant has admitted shaking victim on multiple occasions). The other multiple skull injuri es described in the records are due to external trauma, as traumat ic force applied to the outside of GM’s skull. This differentiati on leads to the conclusion of two or more separate types of acts individually inflicting injury to GM’s skull. The femur injury is located near a growth plate, in a location Dr. T[.] attributes to ‘aggressive’ infliction of trauma unique to abuse of a child under one year of age and having occurred with in seven days of observation. This resulted from pulling and twisting. One of [the] CT images of GM’s skull shows extensive fracturing. Another shows herniation (expulsion) of some brainCase No. 1-20-34

-6- tissue through the fracture site. Neuro-radiologist Jerome R[. ] would at trial present enhanced imagery of the injuries, interpreting and articulating various CT views. Dr. T[.] agree s that the injuries were life threatening, and that GM’s breathin g was destabilized. (Doc. No. 89). {¶9} On August 10, 2020, a sentencing hearing was held. The State a nd defense counsel presented arguments related to merger. The tri al court then indicated it had read the briefs on the matter and the pre-sent ence investigation. Ultimately the trial court determined that the felonious assaul t counts did not merge for the purposes of sentencing. The trial court then sentenced Denoyer to maximum consecutive prison terms for an aggregate prison term of 32-36 years. A judgment entry memorializing Denoyer’s sentence was filed August 11, 202 0. It is from this judgment that Denoyer appeals, asserting the following assignme nts of error for our

review. Assignment of Error No. 1 The trial court [violated] the Double Jeopardy clauses of the federal and state constitutions by failing to merge the first t hree counts of felonious assault under R.C. 2941.25. Assignment of Error No. 2 By clear and convincing evidence the record does not support th e imposition of maximum prison terms. Assignment of Error No. 3 By clear and convincing evidence the record does not support consecutive sentences.Case No. 1-20-34

-7- First Assignment of Error {¶10} In his first assignment of error, Denoyer argues that the trial court erred by failing to merge three of his felonious assault convic tions for purposes of sentencing. More specifically, he contends that the indictment alleged that three of the felonious assaults occurred “on or about October 28, 2019” and thus they were part of the same course of conduct.

Standard of Review {¶11} “ ‘Whether offenses are allied offenses of similar import is a question

of law that this Court reviews de novo.’ ” State v. Jessen , 3d Dist. Auglaize No. 2- 18-16, 2019-Ohio-907, ¶ 22, quoting State v. Frye , 3d Dist. Allen No. 1-17-30, 2018-Ohio-894; see generally State v. Ruff , 143 Ohio St.3d 114, 2015-Ohio-955. Relevant Authority {¶12} Revised Code 2941.25, Ohio’s multiple-count statute, states: (A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one. (B) Where the defendant’s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separate ly or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.Case No. 1-20-34

-8- {¶13} In State v. Ruff , 143 Ohio St.3d 114, 2015-Ohio-995, the Supreme Court of Ohio held the following with regard to determining all ied offenses: 1. In determining whether offenses are allied offenses of simil ar import within the meaning of R.C. 2941.25, courts must evaluate three separate factors—the conduct, the animus, and the import. 2. Two or more offenses of dissimilar import exist within the meaning of R.C. 2941.25(B) when the defendant’s conduct constitutes offenses involving separate victims or if the harm that results from each offense is separate and identifiable. 3. Under R.C. 2941.25(B), a defendant whose conduct supports multiple offenses may be convicted of all the offenses if any o ne of the following is true: (1) the conduct constitutes offenses of dissimilar import, (2) the conduct shows that the offenses were committed separately, or (3) the conduct shows that the offense s were committed with separate animus. The Supreme Court in Ruff explained: At its heart, the allied-offense analysis is dependent upon the facts of a case because R.C. 2941.25 focuses on the defendant’s condu ct. The evidence at trial or during a plea or sentencing hearing wi ll reveal whether the offenses have similar import. When a defendant’s conduct victimizes more than one person, the harm for each person is separate and distinct, and therefore, the defendant can be convicted of multiple counts. Also, a defendan t’s conduct that constitutes two or more offenses against a single victim can support multiple convictions if the harm that result s from each offense is separate and identifiable from the harm of the other offense. We therefore hold that two or more offenses of dissimilar import exist within the meaning of R.C. 2941.25(B) when the defendant’s conduct constitutes offenses involving separate victims or if the harm that results from each offense is separate and identifiable. Ruff , 2015-Ohio-995 at ¶ 26.Case No. 1-20-34

-9- Analysis {¶14} In this case, Denoyer argues that three of his convictions for felonious assault should have merged for the purposes of sentencing. For reference, Denoyer’s felonious assault convictions were in violation of R. C. 2903.11(A)(1), which reads, “No person shall knowingly * * * Cause serious phy sical harm to another or to another’s unborn[.]” {¶15} On appeal, Denoyer argues that there was no evidence that the felonious assaults against G.M. were committed separately. To support his claim,

he cites the fact that the indictment for three of the feloniou s assault charges alleged the “same conduct against the same victim on the same date of O ctober 28, 2019.” (Appt.’s Br. at 7). Denoyer argues that the prosecution did no t present evidence indicating that separate acts occurred on the given “date” at t he plea hearing or at the sentencing hearing, thus the trial court erred by failing t o merge the three

felonious assault convictions related to the acts “on” October 28, 2019. {¶16} At the outset, we note that the indictment alleged that three o f the felonious assault charges to which Denoyer pled guilty occurred on or about October 28, 2019 . The prosecution later explained that given G.M.’s extremely young age, it was difficult to discern exactly when some of the injuries occurred. {¶17} Nevertheless, contrary to Denoyer’s argument, the prosecution presented multiple sentencing briefs detailing the disparate in juries to G.M., andCase No. 1-20-34

-10- their origin according to medical evidence. The prosecution’s sentencing brief specifically separated the four felonious assaults into four di fferent injury categories. The first felonious assault was related to “numero us blows to the head of GM by the Defendant on 10-28-19, resulting in multiple skull fractures.” (Doc. No. 88). The second felonious assault arose “from a shearing i njury from shaking, or violent acceleration or deceleration to GM by the Defendant on or about 10-28- 19.” ( Id .) The third felonious assault was related to a femur injury a nd two broken ribs inflicted by Denoyer during the period of October 22, 2019 to October 28, 2019. Finally, the fourth felonious assault was related to G.M. havin g sixteen broken ribs. {¶18} At the sentencing hearing, the prosecution reiterated the point s from its written sentencing memoranda, adding that Denoyer had ackno wledged at least five to seven different violent acts against the infant. Furth er, the prosecution emphasized that the distinct injuries were caused by separate a cts that would have been identified through the medical testimony such as striking, squeezing, shaking,

etc. {¶19} In State v. Ruff , supra , at ¶ 26, the Supreme Court of Ohio defined what “constitutes two or more offenses against a single victim, ” by stating that there can be multiple convictions “if the harm that results from each offense is separate

and identifiable from the harm of the other offense.” Here the record reflectsCase No. 1-20-34

-11- separate identifiable harm to G.M. coming from separate identif iable acts of Denoyer, i.e. striking, shaking, squeezing. {¶20} Moreover, even if some of these acts did occur on the same day, that does not make them allied as each act was distinct. Further, t hey were perpetrated against an infant less than three months old, so the knowing po tential of serious physical harm would be in each identifiable act of striking, sh aking, and squeezing. As we have held previously, separate assaults, even in close te mporal proximity, can lead to separate convictions. See State v. Mejia , 3d Dist. Union No. 14-19-28, 2020-Ohio-4883, ¶ 50-52. {¶21} Based on the record before us we cannot find that the trial cou rt erred by finding that the felonious assault convictions did not merge for purposes of sentencing. Therefore, Denoyer’s first assignment of error is overruled. Second Assignment of Error {¶22} In his second assignment of error, Denoyer argues that the reco rd does not support the imposition of maximum 8-year prison terms for e ach of his felonious

assault convictions.

Standard of Review {¶23} Under R.C. 2953.08(G)(2), an appellate court will reverse a sen tence “only if it determines by clear and convincing evidence that th e record does not support the trial court’s findings under relevant statutes or t hat the sentence isCase No. 1-20-34

-12- otherwise contrary to law.” State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1. Clear and convincing evidence is that “ ‘which will produ ce in the mind of the trier of facts a firm belief or conviction as to the facts soug ht to be established.’ ”

Id. at ¶ 22, quoting Cross v. Ledford , 161 Ohio St. 469 (1954), paragraph three of the syllabus. Relevant Authority {¶24} “ ‘The trial court has full discretion to impose any sentence w ithin the authorized statutory range, and the court is not required to ma ke any findings or give its reasons for imposing maximum or more than [a] minimum sente nce[ ].’ ” State

v. Castle , 2d Dist. Clark No. 2016-CA-16, 2016-Ohio-4974, ¶ 26, quoting State v. King , 2d Dist. Clark No. 2012-CA-25, 2013-Ohio-2021, ¶ 45; State v. White , 3d Dist. Marion No. 9-19-32, 2020-Ohio-717, ¶ 8. Nevertheless, wh en exercising its sentencing discretion, a trial court must consider the statutor y policies that apply to every felony offense, including those set out in R.C. 2929.11 a nd R.C. 2929.12.

State v. Kerns , 3d Dist. Logan No. 8-18-05, 2018-Ohio-3838, ¶ 8, citing State v.

Mathis , 109 Ohio St.3d 54, 2006-Ohio-855, ¶ 38. {¶25} Revised Code 2929.11 provides that sentences for a felony shall be guided by the overriding purposes of felony sentencing: “to pro tect 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 sanc tions that the courtCase No. 1-20-34

-13- determines accomplish those purposes without imposing an unnece ssary burden on state or local government resources.” R.C. 2929.11(A). In orde r to comply with those purposes and principles, R.C. 2929.12 instructs a trial c ourt to consider various factors set forth in the statute relating to the seriou sness of the offender’s

conduct and to the likelihood of the offender’s recidivism. R.C . 2929.12(A)-(E). Analysis {¶26} In this case, Denoyer was convicted of four counts of felonious assault in violation of R.C. 2903.11(A)(1), all second degree felonies. Pursuant to R.C. 2929.14(A)(2)(a), the prison term for a second degree felony “s hall be an indefinite prison term with a stated minimum term selected by the court of two, three, four, five, six, seven, or eight years and a maximum term that is det ermined pursuant to section 2929.144 of the Revised Code[.]” Under R.C. 2929.14 4(B)(1), the maximum prison term for a qualifying felony of the second degre e shall be equal to the “minimum term imposed * * * plus fifty per cent of that ter m.” Here, Denoyer was sentenced to serve four maximum, indefinite prison terms wi th a stated minimum of 8 years. The maximum was stated to be 12 years, tho ugh that only applies to one of the four counts. These prison terms are with in the appropriate statutory range and they are compliant with the relevant statut es; therefore the maximum prison terms are presumptively valid. State v. Maggette , 3d Dist. Seneca No. 13-16-06, 2016-Ohio-5554, ¶ 31.Case No. 1-20-34

-14- {¶27} Moreover, at the sentencing hearing, the trial court referenced the requisite sentencing statutes, specifically indicating that it had balanced the

seriousness and recidivism factors under R.C. 2929.12. The tri al court’s findings were incorporated into its judgment entry, further indicating i t had considered R.C. 2929.11 and 2929.12. Importantly, “[a] trial court’s statement that it considered the required statutory factors, without more, is sufficient to fulf ill its obligations under the sentencing statutes.” Maggette , 2016-Ohio-5554, at ¶ 32, citing State v. Abrams , 8th Dist. Cuyahoga No. 103786, 2016-Ohio-4570, citing State v. Payne , 114 Ohio St.3d 502, 2007-Ohio-4642, ¶ 18. Thus not only was the sentenc e in this case presumptively valid, the trial court also indicated that it con sidered the appropriate statutes. Under these circumstances, we cannot find that Denoy er demonstrated that his sentence was clearly and convincingly contrary to law. {¶28} Furthermore, to the extent that Denoyer seeks to have this Cour t modify his sentence, we emphasize that the Supreme Court of Ohi o recently clarified an appellate court’s review a felony sentence under R .C. 2953.08(G)(2).

State v. Jones , --- Ohio St.3d ---, 2020-Ohio-6729, ¶ 39. 3 The Supreme Court of Ohio determined that R.C. 2953.08(G)(2)(a) “clearly does not pr ovide a basis for an

3 Because Jones was decided after the parties submitted their appellate briefs in this case, neither party has had the opportunity to address its applicability. However, Jones “does not change the law” but instead “clarifies existing law and precedents.” State v. Roberts , 5th Dist. Richland No. 2020 CA 0035, 2021-Ohio90, ¶ 81, fn. 2. Therefore, we elect to apply Jones to the instant case without the benefit of supplemental briefing.Case No. 1-20-34

-15- appellate court to modify or vacate a sentence if it concludes that the record does not support the sentence under R.C. 2929.11 and R.C. 2929.12 be cause * * * R.C. 2929.11 and R.C. 2929.12 are not among the statutes listed in t he provision.” Id . at ¶ 31. Thus, the Supreme Court of Ohio concluded that an appell ate court may not modify or vacate a felony sentence based upon a finding by clea r and convincing evidence that the record does not support the trial court’s “fi ndings” under R.C.

2929.11 and R.C. 2929.12. Id

. at ¶ 42 (“Nothing in R.C. 2953.08(G)(2) permits an appellate court to independently weigh the evidence in the reco rd and substitute its judgment for that of the trial court concerning the sentence th at best reflects compliance with R.C. 2929.11 and 2929.12.”). {¶29} In Jones , the Supreme Court of Ohio also confirmed that R.C. 2953.08(G)(2)(b) does not provide a mechanism for an appellate court to modify or vacate a felony sentence based upon a finding that the sentence is “contrary to law” because it clearly and convincingly is not supported by the rec ord under R.C.

2929.11 and R.C. 2929.12. Id . at ¶ 32-39. “As a result of the Supreme Court’s holding in Jones , when reviewing felony sentences that are imposed solely after considering the factors in R.C. 2929.11 and R.C. 2929.12, we sh all no longer analyze whether those sentences are unsupported by the record. We simply must determine whether those sentences are contrary to law.” State v. Dorsey , 2d Dist. Montgomery No. 28747, 2021-Ohio-76, ¶ 18. “A sentence is contr ary to law whenCase No. 1-20-34

-16- it does not fall within the statutory range for the offense or if the trial court fails to consider the purposes and principles of felony sentencing set f orth in R.C. 2929.11 and the sentencing factors set forth in R.C. 2929.12.” Id . citing State v. Brown , 2d Dist. No. 2016-CA-53, 2017-Ohio-8416, ¶ 74; see State v. D-Bey , 8th Dist. Cuyahoga No. 109000, 2021-Ohio-60, ¶ 65. {¶30} In sum, the record demonstrates that the prison terms imposed b y the trial court in this case are within the statutory range and tha t the trial court considered the requisite statutory factors in R.C. 2929.11 and 2929.12 when it fashioned Denoyer’s aggregate sentence. Thus, Denoyer cannot d emonstrate that his sentence is clearly and convincingly contrary to law, and h is sentence must

therefore be affirmed. See State v. Burks , 2d Dist. Clark No. 2019-CA-70, 2021- Ohio-224, ¶ 9, (“Under Jones , this ends the inquiry regarding the individual

sentences . Thus, there is no basi s upon whic h to m odify or vaca te either individual sentence.”); see also , D-Bey, supra , ¶ 75, citing Jones at ¶ 39 (concluding that “this court cannot review D-Bey’s sentences to determine whether they are “excessive” or otherwise not “supported by the record under R.C. 2929.11 an d 2929.12.”). For all of these reasons, Denoyer’s second assignment of error is o verruled.Case No. 1-20-34

-17- Third Assignment of Error {¶31} In his third assignment of error, Denoyer argues that the recor d does not support consecutive sentences in this matter. 4 Relevant Authority {¶32} Pursuant to R.C. 2929.14(C)(4), in order to impose consecutive sentences, a trial court must find on the record that consecuti ve sentences are “necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousne ss of the offender’s conduct and to the danger the offender poses to the public.” Accord State v. Grate , --- Ohio St.3d ---, 2020-Ohio-5584, ¶ 205. A trial court must then also find that at least one or more of the aggravating factors in R.C. 2929.14(C) (4)(a) through (c) are present. {¶33} In State v. Bonnell , 140 Ohio St.3d 209, 2014-Ohio-3177, ¶ 37, the Supreme Court of Ohio held that a trial court must make the req uisite statutory findings before imposing consecutive sentences “at the sentenci ng hearing and incorporate its findings into its sentencing entry, but it has no obligation to state reasons to support its findings.”

4 The same standard of review from the second assignment of erro r applies here.Case No. 1-20-34

-18- Analysis {¶34} In this case the trial court made all of the appropriate consec utive sentences findings at the sentencing hearing, and in its judgme nt entry. This was sufficient to comply with R.C. 2929.14(C)(4), and with the Supr eme Court of Ohio’s interpretation in Bonnell

. {¶35} On appeal, Denoyer does not even attempt to argue that the tria l court failed to make any of the appropriate findings; rather, he cont ends that the trial court’s consecutive sentence findings were unsupported by the r ecord. Importantly, and contrary to Denoyer’s argument, a trial court has no obligation to state reasons to support its findings

. Bonnell at ¶ 37. For this reason alone we could overrule Denoyer’s assignment of error. {¶36} Nevertheless, the trial court did state some reasons on the rec ord as to why it was imposing consecutive sentences, indicating that this violence went on over a period of time, and that G.B. suffered serious physical harm, the extent of which may not even be determined for years to come. The trial court also cited that multiple acts occurred here, leading to separate identifiable h arm. The litany of fractures and injuries to this child, less than three months ol d, cannot be overstated. While Denoyer may be remorseful now, and he may wish to have me ntal health treatment, that does not change his actions in this matter. 5

5 Denoyer claimed that he committed the acts while using “crysta l meth.”Case No. 1-20-34

-19- {¶37} Based on the record before us we cannot find that Denoyer has demonstrated that his consecutive sentences were clearly and co nvincingly contrary to law. Therefore, his third assignment of error is overruled.

Conclusion {¶38} For the foregoing reasons Denoyer’s assignments of error are overruled and the judgment of the Allen County Common Pleas Cou rt is affirmed. Judgment Affirmed WILLAMOWSKI, P.J. and MILLER, J., concur. /jlr