¶1[Cite as State v. Steger, 2016-Ohio-7908.]
¶2 IN THE COURT OF APPEALS
¶3 TWELFTH APPELLATE DISTRICT OF OHIO
¶4 BUTLER COUNTY
¶5STATE OF OHIO, : CASE NO. CA2016-03-059 Plaintiff-Appellee, : OPINION : 11/28/2016 - vs - :
¶6HARRY D. STEGER, :
¶7 Defendant-Appellant. :
¶8 CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2015-08-1230
¶9Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee
¶10Charles M. Conliff, 5145 Pleasant Avenue, Suite 18, P.O. Box 18424, Fairfield, Ohio 45018-0424, for defendant-appellant
¶11 M. POWELL, P.J.
¶12 {¶ 1} Defendant-appellant, Harry Steger, appeals the sentence he received in the Butler
¶13County Court of Common Pleas after he pled guilty to one count each of gross sexual imposition and
¶14attempted gross sexual imposition.
¶15 {¶ 2} Appellant was indicted in August 2015 on seven counts of gross sexual imposition of a
¶16person less than 13 years of age. The charges stemmed from allegations that between May 1, 2014, and Butler CA2016-03-059
¶17May 18, 2015, appellant engaged in sexual contact with his two stepdaughters (the "victims"), ages 10
¶18and 12, by touching the victims' breasts, vaginal area, and/or buttocks. On January 21, 2016, appellant
¶19pled guilty to one count of gross sexual imposition, a third-degree felony, and one count of attempted
¶20gross sexual imposition, a fourth-degree felony, both in violation of R.C. 2907.05(A)(4). Prior to
¶21appellant's plea, the trial court informed him that the gross sexual imposition charge carried a
¶22presumption for a prison term and that the burden was on appellant to rebut the presumption at
¶23sentencing. A sentencing hearing was scheduled for March 3, 2016, and the trial court ordered that a
¶24presentence investigation report ("PSI") be prepared.
¶25 {¶ 3} Prior to the sentencing hearing, appellant submitted a sentencing memorandum in which
¶26he asserted that either a community control or minimum prison sentence would achieve the purposes of
¶27sentencing in this case. Appellant argued his conduct was not more serious than conduct normally
¶28constituting the offense of gross sexual imposition, he did not cause physical harm to the victims and
¶29never threatened them, "there are substantial grounds to mitigate [his] conduct," he was remorseful and
¶30accepted full responsibility for his actions, and he was at a low risk to reoffend.1
¶31 {¶ 4} At the sentencing hearing, defense counsel informed the trial court that appellant "had
¶32shown extreme remorse to [defense counsel]" for his actions and noted that appellant had taken
¶33responsibility for his conduct by pleading guilty. Defense counsel urged the trial court to sentence
¶34appellant to either community control or a minimum prison term. Counsel argued that either sentence
¶35would be appropriate given appellant's lack of criminal record, his compliance with all the terms of his
¶36release, and the fact he was the caretaker of his out-of-state elderly parents. Appellant offered a brief
¶37statement in allocution in which he acknowledged the pain and distress he had caused. The state asked
¶38the trial court to take into account the victims' written statements, the written statement of their mother
¶391. The sentencing memorandum states that appellant was examined by a clinical and forensic psychologist, and that following a sex offender risk assessment, the psychologist found appellant to be at a low level of reoffending. A footnote in the sentencing memorandum indicates that the psychologist's report, although not attached as an -2- Butler CA2016-03-059
¶40(who was also appellant's wife), the violation of trust caused by appellant's actions, and the devastating
¶41effect it had on his family.
¶42 {¶ 5} After considering this evidence and reviewing the victim impact statements from the
¶43victims and their mother, the PSI, appellant's sentencing memorandum, and the attachments provided
¶44to the court by defense counsel, the trial court found that the presumption in favor of a prison term had
¶45not been rebutted. The trial court then sentenced appellant to 60 months in prison on the gross sexual
¶46imposition charge and to 18 months in prison on the attempted gross sexual imposition charge and
¶47ordered that the sentences be served concurrently. In sentencing appellant, the trial court
¶48acknowledged appellant's otherwise law-abiding life but noted the seriousness of his actions and their
¶49likely repercussions for the victims and their mother, the fact that the sexual abuse was not an isolated
¶50incident but rather "a continuing, regular [course] of conduct, and that's disturbing," and the fact
¶51appellant was victimizing the victims while their mother was dealing with a serious illness. The trial
¶52court also classified appellant as a Tier II sex offender.
¶53 {¶ 6} Appellant now appeals, raising one assignment of error:
¶54 {¶ 7} THE TRIAL COURT ERRED TO THE APPELLANT'S PREJUDICE BY IMPOSING
¶55A PRISON SENTENCE.
¶56 {¶ 8} Appellant argues the trial court erred by sentencing him to prison for his offenses.
¶57Specifically, appellant argues the trial court did not properly consider the overriding purposes and
¶58principles of felony sentencing under R.C. 2929.11 and failed to balance the seriousness and recidivism
¶59factors set forth in R.C. 2929.12, and instead only considered how "bad" his conduct was. Appellant
¶60asserts that given the clear and convincing evidence he is at a low risk of reoffending and that his
¶61conduct was less serious than the conduct of other offenders, he has rebutted the presumption for prison
¶62and should have been sentenced to community control.
¶63exhibit to the sentencing memorandum, would be sent electronically to the prosecutor and hand-delivered to the -3- Butler CA2016-03-059
¶64 {¶ 9} We review the imposed sentence under the standard of review set forth in R.C.
¶652953.08(G)(2), which governs all felony sentences. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-
¶661002, ¶ 1; State v. Crawford, 12th Dist. Clermont No. CA2012-12-088, 2013-Ohio-3315, ¶ 6. Pursuant
¶67to that statute, an appellate court does not review the sentencing court's decision for an abuse of
¶68discretion. Marcum at ¶ 10. Rather, R.C. 2953.08(G)(2) compels an appellate court to modify or
¶69vacate a sentence only if after reviewing the record, including the findings underlying the sentence, the
¶70appellate court finds by clear and convincing evidence that "the record does not support the trial court's
¶71findings under relevant statutes or that the sentence is otherwise contrary to law." Id. at ¶ 1. A
¶72sentence is not clearly and convincingly contrary to law where the trial court "considers the principles
¶73and purposes of R.C. 2929.11, as well as the factors listed in R.C. 2929.12, properly imposes
¶74postrelease control, and sentences the defendant within the permissible statutory range." State v.
¶75Julious, 12th Dist. Butler No. CA2015-12-224, 2016-Ohio-4822, ¶ 8.
¶76 {¶ 10} Moreover, even in those cases where a sentence is imposed solely after consideration of
¶77the factors in R.C. 2929.11 and 2929.12, that is, where the sentence imposed does not require any of
¶78the statutory findings specifically addressed within R.C. 2953.08(G)(2), an appellate court will
¶79nevertheless review those sentences "under a standard that is equally deferential to the sentencing
¶80court." Marcum at ¶ 23; Julious at ¶ 9. "That is, an appellate court may vacate or modify any sentence
¶81that is not clearly and convincingly contrary to law only if the appellate court finds by clear and
¶82convincing evidence that the record does not support the sentence." Marcum at ¶ 23. Thus, this court
¶83may "increase, reduce, or otherwise modify a sentence only when it clearly and convincingly finds that
¶84the sentence is (1) contrary to law or (2) unsupported by the record." State v. Brandenburg, 146 Ohio
¶85St.3d 221, 2016-Ohio-2970, ¶ 1, citing Marcum at ¶ 7.
¶86 {¶ 11} Appellant was convicted of gross sexual imposition in violation of R.C. 2907.05(A)(4).
¶87trial court for review. -4- Butler CA2016-03-059
¶88Consequently, pursuant to R.C. 2907.05(C)(2), "there is a presumption that a prison term shall be
¶89imposed for the offense." In fashioning an appropriate sanction for a defendant convicted of gross
¶90sexual imposition in violation of R.C. 2907.05(A)(4), "it is presumed that a prison term is necessary in
¶91order to comply with the purposes and principles of sentencing under section 2929.11 of the Revised
¶92Code." R.C. 2929.13(D)(1).
¶93 {¶ 12} The purposes of felony sentencing are to protect the public from future crime by the
¶94offender and to punish the offender. R.C. 2929.11(A). A felony sentence must be reasonably
¶95calculated to achieve the purposes set forth in R.C. 2929.11(A) "commensurate with and not
¶96demeaning to the seriousness of the offender's conduct and its impact on the victim, and consistent with
¶97sentences imposed for similar crimes committed by similar offenders." R.C. 2929.11(B). When
¶98sentencing a defendant, a trial court is not required to consider each sentencing factor, but rather to
¶99exercise its discretion in determining whether the sentence satisfies the overriding purpose of Ohio's
¶100sentencing structure. State v. Littleton, 12th Dist. Butler No. CA2016-03-060, 2016-Ohio-7544, ¶ 12.
¶101The seriousness and recidivism factors set forth in R.C. 2929.12 are nonexclusive, and R.C. 2929.12
¶102explicitly allows a trial court to consider any relevant factors in imposing a sentence. Id.; State v. Birt,
¶10312th Dist. Butler No. CA2012-02-031, 2013-Ohio-1379, ¶ 64.
¶104 {¶ 13} After a thorough review of the record, including the trial court's underlying findings for
¶105the sentence, we find no error in the trial court's decision to sentence appellant to prison for his
¶106offenses, and not to community control. The record plainly reveals that appellant's sentence is not
¶107clearly and convincingly contrary to law because the trial court properly considered the principles and
¶108purposes of R.C. 2929.11, as well as the factors listed in R.C. 2929.12, imposed the required
¶109mandatory five-year postrelease control term, and sentenced appellant within the permissible statutory
¶110range for both a third-degree and fourth-degree felony in accordance with R.C. 2929.14(A)(3)(a) and
¶111(4). Littleton at ¶ 13. At the sentencing hearing and in its sentencing entry, the trial court specifically
¶112 -5- Butler CA2016-03-059
¶113stated it considered the purposes and principles of sentencing and weighed the recidivism and
¶114seriousness factors before imposing appellant's prison sentence.
¶115 {¶ 14} The record further supports the trial court's sentencing decision. Although appellant
¶116expressed remorse for his actions and he did not have a criminal history, the record supports the trial
¶117court's determination that sentencing appellant to prison and not to community control was
¶118commensurate with the seriousness of appellant's conduct, necessary to punish appellant, and necessary
¶119to protect the public from future crime by appellant.
¶120 {¶ 15} With regard to the recidivism factors, appellant is correct that none of the factors set
¶121forth in R.C. 2929.12(D) indicating an offender is likely to recidivate, apply here. Appellant is also
¶122correct that most of the factors set forth in R.C. 2929.12(E) indicating an offender is unlikely to
¶123recidivate, favor appellant, including the fact appellant expressed remorse for his actions and that until
¶124the offenses, he led a law-abiding life. At the sentencing hearing, the trial court found that appellant
¶125"[had] been a law abiding citizen other than this."
¶126 {¶ 16} With regard to the seriousness factors set forth in R.C. 2929.12, appellant is correct that
¶127two of the four factors set forth in R.C. 2929.12(C) indicating a "less serious conduct," favor him.
¶128However, three of the nine "more serious conduct" factors set forth in R.C. 2929.12(B) apply here.
¶129Specifically, the victims suffered psychological harm, the harm was exacerbated by the victims' age,
¶130and appellant's stepparent relationship with the victims facilitated the offenses. R.C. 2929.12(B)(1),
¶131(2), and (6). Appellant used his authority as a stepfather in facilitating his offenses. For over a year, he
¶132repeatedly engaged in sexual contact with the victims while their mother was dealing with a serious
¶133illness.
¶134 {¶ 17} At the sentencing hearing, the trial court specifically stated it had "reviewed, considered
¶135the victim impact statements from the children, from the children's mother, the presentence
¶136investigation report, the sentencing memorandum and the attachments provided to the Court by
¶137 -6- Butler CA2016-03-059
¶138[defense] counsel." In finding that appellant had not rebutted the presumption of prison and in
¶139sentencing appellant to prison and not to community control, the trial court emphasized the gravity of
¶140appellant's actions, the likely repercussions for the victims and their mother, the fact the sexual abuse
¶141was not an isolated incident but rather a continuing, regular course of conduct, and the fact appellant
¶142was victimizing the victims while their mother was dealing with a serious illness.
¶143 {¶ 18} Appellant disagrees with the trial court's analysis and its balancing of the seriousness
¶144and recidivism factors in R.C. 2929.12 and mitigation evidence. However, R.C. 2929.12 allows a trial
¶145court to consider any relevant factors in imposing a sentence. Birt, 2013-Ohio-1379 at ¶ 64. The trial
¶146court, in imposing a sentence, determines the weight afforded to any particular statutory factors,
¶147mitigating grounds, or other relevant circumstances. State v. Stubbs, 10th Dist. Franklin No. 13AP-
¶148810, 2014-Ohio-3696, ¶ 16. Upon reviewing the record, we find there is no clear and convincing
¶149evidence the trial court erred in balancing the factors in R.C. 2929.12 and the mitigation evidence.
¶150 {¶ 19} We therefore find the trial court did not err in sentencing appellant to prison for his
¶151offenses. See State v. Eichele, 11th Dist. Geauga No. 2015-G-0050, 2016-Ohio-7145 (upholding
¶152prison sentence for gross sexual imposition, even though defendant had no criminal record, had led a
¶153law-abiding life, and was at a very low risk to reoffend, where victim suffered serious psychological
¶154harm due to being molested by her father, victim's young age exacerbated her injuries, and defendant's
¶155relationship to victim facilitated the offense); State v. Brooks, 11th Dist. Trumbull No. 2015-T-0111,
¶1562016-Ohio-4743 (upholding maximum prison sentence for gross sexual imposition, even though there
¶157was minimal criminal history or likelihood of recidivism, where defendant had no remorse, defendant
¶158was victim's grandfather, victim was eight years old, and victim suffered psychological harm).
¶159 {¶ 20} Appellant's assignment of error is overruled.
¶160 {¶ 21} Judgment affirmed.
¶161 RINGLAND and HENDRICKSON, JJ., concur. -7- Butler CA2016-03-059
¶162-8-