[Cite as State v. Davis,
2017-Ohio-733.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 15 MA 0163
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
VIRGINIA DAVIS )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Mahoning County,
Ohio
Case No. 15 CR 84
JUDGMENT: Affirmed. Modified.
APPEARANCES:
For Plaintiff-Appellee: Atty. Paul J. Gains
Mahoning County Prosecutor
Atty. Ralph M. Rivera
Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant: Atty. Ronald D. Yarwood
DeGenova & Yarwood, Ltd.
42 North Phelps Street
Youngstown, Ohio 44503
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Carol Ann Robb
Dated: February 28, 2017
[Cite as State v. Davis, 2017-Ohio-733.]
WAITE, J.
{¶1} Appellant Virginia Davis appeals an August 21, 2015 Mahoning County
Common Pleas Court sentencing entry. Appellant argues that a statement made by
the prosecutor was improper and only served to inflame the judge against her.
Appellant additionally argues that her sentence is contrary to the law. For the
reasons that follow, Appellant’s arguments are without merit and the judgment of the
trial court is affirmed.
Factual and Procedural History
{¶2} The charges at issue stem from two incidents where Appellant had
sexual intercourse without informing either man that she is HIV positive. The record
shows that on January 29, 2015, Appellant was indicted on two counts of felonious
assault, a felony of the second degree in violation of R.C. 2903.11(B)(1), (D), and
one count of falsification, a misdemeanor of the first degree in violation of R.C.
2921.13(A)(2), (F)(1). Although Appellant contends that one of the felonious assault
counts involved a non-HIV offense, this is not supported by the record.
{¶3} Appellant entered into a Crim.R. 11 plea agreement with the state.
Pursuant to its terms, Appellant pleaded guilty to one count of felonious assault. The
count was amended to add both victims. The remaining counts of felonious assault
and falsification were dismissed. On the same day, the trial court conducted a plea
hearing and, after a colloquy with Appellant, accepted her guilty plea.
{¶4} On August 20, 2015, the trial court held a sentencing hearing. The
state agreed to seek a four-year sentence of incarceration, unless Appellant
requested community control. In that event, the state would seek four to six years of
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incarceration. Appellant requested community control. Ultimately, the trial court
imposed a seven-year incarceration term on Appellant. This timely appeal followed.
ASSIGNMENT OF ERROR NO. 1
Appellant was denied her right to a fair trial and due process when the
State made improper remarks during the sentencing hearing that were
baseless, inflammatory and expressed his personal beliefs.
{¶5} Appellant argues that the prosecutor’s statement “[t]o me those two
men have life sentences” was prejudicial. (Appellant’s Brf., p. 2.) Appellant claims
that the statement is baseless, as neither victim has experienced symptoms of HIV.
Appellant argues that the statement was not derived from evidence contained in the
record, expressed a personal belief, and only served to inflame the judge against her
at sentencing.
{¶6} In response, the state argues that Appellant pleaded guilty to a violation
of R.C. 2903.11(B)(1). An element of this offense includes that the defendant
engaged in sexual intercourse with another with knowledge that she is a carrier of the
HIV virus. As such, the state contends that the prosecutor’s statement is relevant to
this element and to the possible effects the victims may face.
{¶7} Appellant’s trial counsel did not object to the statement at trial. She
concedes, then, that she is limited to a plain error review. A three-part test is
employed to determine whether plain error exists. State v. Billman, 7th Dist. Nos. 12
MO 3, 12 MO 5, 2013-Ohio-5774, ¶ 25, citing State v. Barnes,
94 Ohio St.3d 21, 27,
759 N.E.2d 1240 (2002).
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First, there must be an error, i.e. a deviation from a legal rule. Second,
the error must be plain. To be “plain” within the meaning of Crim.R.
52(B), an error must be an “obvious” defect in the trial proceedings.
Third, the error must have affected “substantial rights.” We have
interpreted this aspect of the rule to mean that the trial court's error
must have affected the outcome of the trial.
Billman at ¶ 25.
{¶8} At the sentencing hearing, the prosecutor stated: “To me those two
men have life sentences. They have to go every six months, get tested. They don’t
know what’s in the future for them, okay. That’s why I feel that prison is necessary
here.” (8/20/15 Sentencing Hrg. Tr., p. 3.) It appears from reading this record in
context that the prosecutor was explaining that he was asking Appellant be given a
prison sentence due to the potential health issues facing the victims and the
uncertainty of these risks into the future.
{¶9} As noted by the state, courts are permitted to consider criminal charges
that were dismissed pursuant to a plea agreement when imposing a sentence. See
State v. Starkey, 7th Dist. No. 06 MA 110, 2007-Ohio-6702. The prosecutor’s
statement, here, appears relevant to R.C. 2929.12(B)(2), which requires the trial
court to consider whether “[t]he victim of the offense suffered serious physical,
psychological, or economic harm as a result of the offense.” The prosecutor
acknowledged that the victims faced great uncertainty regarding the HIV virus and
must undergo regular testing, which caused them both psychological harm and
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potential physical harm. As defense counsel explained, it is possible for a person
carrying HIV to test at non-detectable levels and later test at higher reportable levels.
(8/20/2015 Sentencing Hrg., p. 5-6.) According to the prosecutor, the victims may be
retested every six months. While the prosecutor may have engaged in some
hyperbole, it is reasonable to glean from the record that the victims have suffered
harm. We also note that this statement was made to the judge in sentencing, and not
to a jury or other layperson who may be more easily swayed by emotion. As the
prosecutor’s comment is directly related to one of the seriousness factors of R.C.
2929.12, the comment was not plain error. Appellant’s first assignment of error is
without merit and is overruled.
ASSIGNMENT OF ERROR NO. 2
The trial court abused its discretion and/or issued a sentence contrary
to law by sentencing Appellant to a term of incarceration when she had
no prior criminal record and there was no known harm to the victims.
{¶10} Appellant contends that her sentence, which is more severe than the
state requested, is contrary to the law. Appellant argues that the trial court should
have considered mitigating factors such as her lack of a criminal record and mental
health issues. Additionally, Appellant argues that the two victims have suffered no
known harm.
{¶11} In response, the state argues that Appellant’s sentence is within the
permissible statutory range. The state also contends that the trial court considered
all relevant sentencing statutes.
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{¶12} An appellate court is permitted to review a felony sentence to determine
if it is contrary to law. State v. Marcum, 146 Ohio St.3d 516,
2016-Ohio-1002,
59
N.E.3d 1231, ¶ 23. Further, “an appellate court may vacate or modify any sentence
that is not clearly and convincingly contrary to law only if the appellate court finds by
clear and convincing evidence that the record does not support the sentence.”
Id.
{¶13} The maximum penalty for a felony of the second degree is eight years.
R.C 2929.14(A)(2). Appellant’s sentence of seven years is within the permissible
statutory range. This sentence is undeniably lengthy. However, in order to sustain
Appellant’s argument, we would be required to clearly and convincingly find that the
record does not support the sentence.
{¶14} Contrary to Appellant’s argument, the record reveals that she did have
a criminal record. At the sentencing hearing, Appellant’s counsel informed the court
that she had a prior disorderly conduct conviction in Columbiana County for which
she received a jail sentence. While the record reflects mitigating factors, Appellant’s
pregnancy and mental health issues, the court was clearly aware of these. We have
already determined that this record shows there was harm to the victims. There is
nothing of record to demonstrate that this sentence is clearly contrary to law. As
such, Appellant’s second assignment of error is without merit and is overruled.
{¶15} Although not raised by the parties, we note that the sentencing entry
contains a clerical error. While the trial court correctly stated at the sentencing
hearing that the offense constitutes a violation of R.C. 2903.11(B)(1),(D), the entry
misstates that subsection as “a violation of Ohio Revised Code 2903.11(A)(1)(D).”
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Accordingly, we modify and correct the error in the August 21, 2015 sentencing entry
to correct the error to reflect the correct subsection “R.C. 2903.11(B)(1), (D).”
Conclusion
{¶16} Appellant argues that a statement made by the prosecutor was
improper and served to inflame the judge. However, the comment was related to the
seriousness factors pursuant to R.C. 2929.12. Appellant also argues that her
sentence is contrary to law. Appellant’s sentence falls within the permissible
statutory range and there is nothing in this record to demonstrate that it is otherwise
contrary to law. The judgment of the trial court is affirmed. The August 21, 2015
sentencing entry is modified to correct a clerical error, correcting reference to R.C.
2903.11(A)(1)(D) to accurately cite R.C. 2903.11(B)(1), (D).
Donofrio, J., concurs.
Robb, P.J., concurs.
