[Cite as State v. Volpi,
2024-Ohio-5764.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY
STATE OF OHIO, CASE NO. 2024-A-0046
Plaintiff-Appellee,
Criminal Appeal from the
- vs - Court of Common Pleas
THOMAS L. VOLPI,
Trial Court No. 2019 CR 00500
Defendant-Appellant.
OPINION
Decided: December 9, 2024
Judgment: Affirmed in part, reversed in part, and remanded
Colleen M. O’Toole, Ashtabula County Prosecutor, Christopher R. Fortunato and Mark
Majer, Assistant Prosecutors, 25 West Jefferson Street, Jefferson, OH 44047 (For
Plaintiff-Appellee).
William C. Livingston and Mark R. DeVan, Berkman, Gordon, Murray & DeVan, 55
Public Square, Suite 2200, Cleveland, OH 44113 (For Defendant-Appellant).
JOHN J. EKLUND, J.
{¶1} Appellant, Thomas Volpi, appeals from the judgment of the Ashtabula
County Court of Common Pleas after his convictions for one count of Rape, a first-degree
felony in violation of R.C. 2907.02(A)(2), and five counts of Unlawful Sexual Conduct with
a Minor, third-degree felonies in violation of R.C. 2907.04(A). These charges related to
two minor victims: A.W. (D.O.B. 11-1-2001) and D.L. (D.O.B. 9-5-2003). After his
convictions, Appellant filed an appeal in State v. Volpi, 2023-Ohio-4488 (11th Dist.) (Volpi
I). This Court affirmed his conviction for Rape but reversed his convictions for Sexual
Battery and remanded for resentencing on the previously merged counts of Unlawful
Sexual Conduct with a Minor.
{¶2} Appellant now appeals following resentencing, raising six assignments of
error, arguing: (1) the trial court erred by prohibiting defense counsel from commenting
on the State’s failure to call D.L.’s father as a witness; (2) the trial court erred by permitting
the introduction of irrelevant and hearsay testimony; (3) that his convictions on Counts
18-24 for Unlawful Sexual Contact with a Minor were against the manifest weight of the
evidence; (4) the trial court’s imposition of consecutive sentences was contrary to law for
various reasons; (5) the trial court improperly imposed consecutive sentences based on
Appellant’s silence at trial; and (6) that his aggregate sentence amounts to cruel and
unusual punishment.
{¶3} Having reviewed the record and the applicable caselaw, the trial court did
err in prohibiting defense counsel from commenting on the State’s failure to call a witness.
However, that error was harmless beyond a reasonable doubt. Second, we previously
addressed and rejected Appellant’s arguments contained in his second assignment of
error in Volpi I and do so again here. Third, Appellant’s convictions are not against the
manifest weight of the evidence. Fourth, the trial court failed to make the necessary
findings contained in R.C. 2929.14(C)(4) to impose consecutive sentences, and the trial
court must resentence Appellant to correct the error. Because of this error, we do not
pass on Appellant’s fifth and sixth assignments of error.
{¶4} Therefore, the judgment of the Ashtabula County Court of Common Pleas
is affirmed in part, reversed in part, and remanded for further proceedings consistent with
this opinion.
2
Case No. 2024-A-0046
Substantive and Procedural History
{¶5} On August 14, 2019, Appellant was indicted on 39 counts: 12 counts of
Rape, first-degree felonies in violation of R.C. 2907.02(A)(2); 11 counts of Sexual Battery,
third-degree felonies in violation of R.C. 2907.03(A)(2); five counts of Unlawful Sexual
Conduct with a Minor, third-degree felonies in violation of R.C. 2907.04(A)(3); nine counts
of Gross Sexual Imposition, fourth-degree felonies in violation of R.C. 2907.05(A)(1); and
two counts of Furnishing Alcohol to Underage Persons, first-degree misdemeanors in
violation of R.C. 4301.69(B) and 4301.99(C). Appellant pled not guilty to the charges.
{¶6} On June 21, 2020, the matter proceeded to trial. On that date, the State
voluntarily dismissed the two counts for Furnishing Alcohol to Underage Persons.
{¶7} In Volpi I we set forth the following factual summary:
{¶8} The State called 12 witnesses and appellant called his daughters,
Adrianna Volpi and Abigail Volpi. The following summarizes the testimony
and evidence:
{¶9} On July 5, 2019, D.L. was 15 years old. She had a brother (Michael)
and a sister (Samantha). A.W., who was 17, lived with them. A.W. was
dating Michael, who was also 17. D.L.’s father was dating Teresa Swanson.
Teresa is one of appellant’s daughters.
{¶10} D.L., A.W., Michael, Samantha, and others went to a swim party at
appellant’s house. Also present at the party was Tiara Babbitt, one of
appellant’s former employees. Tiara pled guilty to a fourth-degree felony
Obstructing Justice charge for her involvement in the case in exchange for
her testimony. Tiara testified that she was under the influence of heroin and
Xanax pills during the party.
{¶11} D.L. had been to Appellant’s house before but had never gone
swimming there. A.W. said she had never been to Appellant’s house before
but knew Appellant. While there, appellant asked numerous times if D.L
would be able to drive to his store to get alcohol. Her father and Teresa both
said no on multiple occasions because she was only 15 and did not have
her learner’s permit. Appellant also asked people their ages at the party and
both A.W. and D.L. told him their ages.
3
Case No. 2024-A-0046
{¶12} Michael testified that Appellant “was not our step grandfather, but we
looked at – looked at him as our grandfather” because “my father was dating
his daughter, and we were around them quite frequently for family
activities.”
{¶13} Teresa and D.L.’s father left around 9:30 p.m. and the minor children
arranged to stay the night. At this time, appellant told the minors they could
drink alcohol out of red Solo cups. D.L. said she drank eight or nine drinks
that night and A.W. said she had six drinks.
{¶14} D.L. said she went into the house with appellant to get some towels.
Appellant told D.L. she had a nice body and engaged in an act of sexual
conduct with her. D.L. said she did not know what to do and did not stop
him. Appellant also grabbed D.L.’s hand, causing her to engage in an act of
sexual contact. Appellant then said he had been thinking about “doing this
stuff to me for a while, since the first time he laid his eyes on me.” D.L. did
not say anything and was afraid appellant would become angry if she did.
{¶15} After this, D.L., Tiara, and Appellant went to Appellant’s deli, Albino’s,
to pick up money to buy cigarettes and alcohol.
{¶16} D.L. said she and Appellant went into his office and appellant pulled
her shorts down, touched her erogenous zone, and performed oral sex on
her. Appellant pulled his pants down and caused D.L. to engage in an act
of oral sex. D.L. also said that Appellant touched her breasts under her top
and unsuccessfully attempted to engage in sexual intercourse with her. D.L.
said she told appellant to stop during this encounter, but he continued and
said, “no one was going to find out, that it was going to be our secret.”
{¶17} Appellant then went out to the car, brought Tiara into the store, and
once inside, Appellant, Tiara, and D.L. performed acts of sexual conduct
with each other. D.L. said Appellant was directing their actions and touching
both of them. After this, Appellant told D.L. he would start paying her if she
continued to be good and made promises to buy things for her.
{¶18} The three went back to appellant’s house, and D.L. told A.W. about
what had happened but asked her not to tell anyone.
{¶19} Later in the night, Appellant called Tiara and D.L. to his room and the
three again engaged in sexual activities. Appellant attempted to engage in
intercourse with D.L. but was unable to do so, saying he wished he did not
drink as much as he did. During this time, A.W. came looking for D.L. and
took her back out to the pool and told her she would not leave her for the
rest of the night.
{¶20} During the party, Appellant told his friend Tony that D.L. would be
good in bed and Appellant made a sexual remark about Tony to D.L.
Appellant took D.L.’s hand and tried to cause her to commit an act of sexual
contact with Tony. Tony rejected appellant’s suggestions. D.L. said that
4
Case No. 2024-A-0046
Tony knew how old she was. Appellant objected to testimony about this
interaction with Tony, but the trial court allowed it for the limited purpose of
establishing that Appellant knew D.L.’s age.
{¶21} At the end of the night, Appellant directed where each of the guests
would sleep. He told D.L. and A.W. to sleep in his room and said he would
sleep on the couch. As D.L. and A.W. were getting ready for bed together,
Appellant came into the room and said he would sleep in the bed with them
with D.L. in the middle. Appellant started touching D.L. in the bed and she
began crying. A.W. volunteered to move to the middle. Appellant touched
A.W.’s vagina, removed her underwear, and performed oral sex on her. D.L.
said she saw appellant remove A.W.’s tampon, however, A.W. denied this.
A.W. testified that she told appellant to stop three or four times.
{¶22} D.L. used A.W.’s phone to text Michael regarding his commission of
a sexual act with A.W. Michael came into the room, said he saw Appellant
touching A.W, and told appellant “You know she’s 17, right?” and then
walked out. A.W. testified that Appellant continued to perform oral sex after
Michael left. However, D.L. said that Appellant stopped and the two girls left
the room.
{¶23} After leaving the room, D.L. and A.W. contacted Teresa and said
Appellant had engaged in sexual activity with them. While waiting for Teresa
to arrive, Appellant again promised to give D.L. money and said he could
go to jail if they said anything. Michael said he found A.W.’s underwear on
the floor in appellant’s bedroom and took them with him to give to the police.
{¶24} Teresa came to the house and began screaming at appellant. Teresa
took D.L. and A.W. to the Ashtabula Police Department. While on station,
Michael gave officers A.W.’s underwear taken from Appellant’s bedroom.
{¶25} A.W. and D.L provided statements to the investigators and went to
the hospital. Sexual Assault Nurse Examiner (SANE) certified nurses
performed examinations on both girls and took specimens for further
testing. D.L. reported that appellant had choked her, and her treatment
records noted a contusion on her throat. As part of the examination and
medical treatment, the SANE nurses took statements about the events that
transpired at the party. The nurses both explained these statements are
medically necessary because they ensure they can provide appropriate
care and take necessary samples.
{¶26} The SANE nurses read their reports into the record. These reports
included written narrative statements from the girls. These statements had
been recorded verbatim for the SANE reports and read into the record as
part of the SANE nurses’ testimony. Appellant objected to reading the
narratives on hearsay grounds, but the trial court overruled the objections
because the girls gave their statements in the context of receiving medical
treatment. In addition, appellant objected to D.L.’s statement specifically
5
Case No. 2024-A-0046
because D.L. related that Appellant told her she did not need her “n*****”
boyfriend and that she did not “need those black people. All you will be
doing is living in Section 8 housing. Let me take care of you. I can buy you
a big house.” The SANE nurse who took D.L.’s statement said that she had
to take breaks because D.L. was “very upset and crying[.]”
{¶27} The next day, investigators searched Appellant’s house pursuant to
search warrant. While investigators were on-scene, appellant offered that
his daughters throw wild parties and he was asleep during the party. He
said when he woke up, one of the girls accused him of raping her and he
told them to get out of his house.
{¶28} Tiara talked to the police the day after the party and denied having
any involvement. After this, she talked to appellant at his store. She said
Appellant pulled her shirt up to make sure she was not wearing a wire and
told her not to talk to the police. Tiara eventually told investigators about her
involvement.
{¶29} Matthew Wunsuch, of the Ashtabula County Children Services Board
(“ACCSB”), testified that he sat in on forensic interviews of both girls while
another ACCSB worker conducted the interviews. Wunsch said the purpose
of a forensic interview is to “discover information for the purpose of medical
diagnosis and treatment, for the purpose of child protection, for any purpose
of law enforcement[.]” After conducting the interviews, Wunsuch
recommended counseling services to both A.W. and D.L.
{¶30} The State presented video recordings of the girls giving these
interviews. Appellant objected to their use for the jury on hearsay grounds
and because they were cumulative of A.W. and D.L.’s testimony. During a
sidebar, the trial court said “So, the testimony that’s in these videos is
already in?” Appellant’s trial counsel said “Correct.” The State argued the
statements were not duplicative and were given for the purpose of medical
treatment. Relying on State v. Arnold, 126 Ohio St.3d 290,
2010-Ohio-2742,
933 N.E.2d 775, and because the victims in this case did testify and were
subject to cross examination, the court allowed the video statements to be
played for the jury.
{¶31} Lab results from the Bureau of Criminal Investigation (BCI) indicated
that the rape kits for A.W. and D.L. contained DNA consistent with appellant.
In addition, D.L. and A.W.’s underwear contained DNA consistent with
appellant.
{¶32} The State rested and Appellant’s daughters, Adrianna Volpi and
Abigail Volpi, testified in his case in chief.
{¶33} Adrianna and Abigail said they stopped by the party for about five
minutes. They saw A.W. and D.L. talking on the porch laughing and
giggling. They said Appellant was intoxicated. Appellant attempted to elicit
testimony from Adrianna and Abigail that Michael was skinny dipping with
6
Case No. 2024-A-0046
Tiara while A.W. talked to Appellant. Appellant intended to use this evidence
to demonstrate that A.W. had a motive of jealousy to engage in sexual acts
with Appellant. The trial court sustained the State’s objection to the
testimony.
Volpi I at ¶ 8-33.
{¶8} The jury found Appellant guilty on Count 12, Rape, for conduct relating to
A.W., and guilty on Counts 18-22, Sexual Battery, and Counts 24-28, Unlawful Sexual
Conduct with a Minor, for conduct relating to D.L. The jury returned not guilty verdicts on
the remaining counts.
{¶9} On August 29, 2022, the trial court sentenced Appellant. The parties agreed
that Counts 18-22 and Counts 24-28 merged for sentencing purposes. The State elected
to proceed to sentence on Counts 18-22, Sexual Battery.
{¶10} In Volpi I, we affirmed Appellant’s conviction for one count of Rape and
reversed Appellant’s convictions on Counts 18-22 for Sexual Battery because the State
failed to present sufficient evidence that Appellant was acting in loco parentis for D.L. We
therefore remanded the matter to the trial court to resentence Appellant on the previously
merged Counts 24-28, Unlawful Sexual Conduct with a Minor.
{¶11} On May 1, 2024, the trial court resentenced Appellant. After hearing
appellant’s trial counsel on sentencing, the trial court said the following pertaining to
consecutive sentences:
[Y]ou’ve asked for concurrent time, but we have two distinctly separate
victims. On Count Twelve, the victim is [A.W.] who was 17 years of age. . .
. [O]n Counts Twenty-Four to Twenty-Eight, the victim is [D.L.], a 15-year
old, a separate victim. Are you arguing that – and I’m not being disrespectful
– for a buy one, get one free? Because I don’t believe if you sexually assault
a 17-year old, you get to sexually assault a 15-year old with no additional
penalty. But are you trying to argue that issue?
7
Case No. 2024-A-0046
{¶12} Appellant’s trial counsel responded that consecutive sentences were not
mandatory, and the court agreed.
{¶13} The court also said, “my recollection of the trial testimony was the five
offenses involving your client and D.L. actually occurred at different locations. They
occurred at both Mr. Volpi’s house and his business. . . . Which I consider to be a
continuing course of conduct. It wasn’t all at one place one time.”
{¶14} Next, the trial court said that although Tony did not testify, his statement to
Appellant to “not have sexual relations with D.L. because she was only 15 and it was
wrong . . . and that’s something that struck me.” Appellant denied that Tony had said this
to him and told the court that “I don’t understand the Tony thing, where that comes in with
anything.” Appellant’s trial counsel then told the court that the record did not support the
trial court’s recollection about Tony remarking on D.L.’s age to Appellant.
{¶15} The trial court re-sentenced Appellant to a minimum of 11 years and a
maximum term of 16 and one-half years on the Rape count and 60 months on each of
the Unlawful Sexual Conduct with a Minor counts. The trial court ordered the sentences
be served consecutively for a total of 36-41 and one-half years in prison. In imposing
consecutive sentences, the trial court said:
The Court finds that at least two of the multiple offenses were committed as
part of one or more courses of conduct, and the harm cause[d] by the two
or more multiple offenses was so great or unusual that no single prison term
for the offenses committed as part of any of the courses of conduct
adequately reflects the seriousness of the offender’s conduct.
So, I am ordering that the sentences on Counts Twenty-Four, Twenty-Five,
Twenty-Six, Twenty-Seven and Twenty-Eight be served consecutively to
each other and consecutive to the sentence in Count Twelve. So, on these
five counts, it would be 25 years consecutive to Count Twelve.
{¶16} Appellant timely appealed, raising six assignments of error.
8
Case No. 2024-A-0046
Assignments of Error and Analysis
{¶17} Appellant’s first assignment of error states: “The trial court committed
reversible error in limiting defense counsel’s closing argument in violation of Appellant’s
constitutional rights secured under the Fifth, Sixth and Fourteenth Amendments to the
United States Constitution and Article I, Sections 10 and 16 of the Ohio Constitution. (Tr.
Vol. 6 at 625-26).”
{¶18} Appellant’s trial counsel attempted to argue during closing arguments that
the State failed to call D.L.’s father as a witness to corroborate D.L.’s testimony that her
father told Appellant she was too young to drive. However, the State objected to this
argument and the trial court sustained the objection. Appellant argues that Crim.R. 16(I)
permits a party “during argument” to comment upon “the presence or absence of the
witness.”
{¶19} The State counters that Appellant could have also called the witness.
Further, the State asserts the testimony would have been cumulative, because D.L. had
already testified about the matter. Finally, the State argues that limiting Appellant’s closing
argument in this way was not prejudicial because the State did not move to strike or
request the jury disregard the statements Appellant’s counsel had made and the jury was
free to consider the argument despite the trial court sustaining the State’s objection.
{¶20} The State urges that if prejudice exists, the error was harmless because
there was overwhelming evidence demonstrating Appellant’s guilt.
{¶21} The harmless error standard is “‘significantly more favorable to the
defendant.’” State v. Perry, 2004-Ohio 297, ¶ 15, quoting United States v. Curbelo, 343
F.3d 273, 286 (4th Cir. 2003). Under a harmless error standard, the government bears
9
Case No. 2024-A-0046
the burden of demonstrating that the error did not affect the substantial rights of the
defendant. Id. “An appellate court must reverse a conviction if the government does not
satisfy this burden . . . .”
Id. “Whether the defendant’s substantial rights were affected
depends on whether the error was prejudicial, i.e., whether it affected the outcome of the
trial.” State v. Jones,
2020-Ohio-3051, ¶ 18. Where the State fails to meet its burden, the
appellate court must reverse the conviction. Perry at ¶ 15.
{¶22} “Both parties are given latitude during closing arguments to address what
the evidence has shown and what reasonable inferences may be drawn from that
evidence.” State v. Ford, 2019-Ohio-4539, ¶ 306. A party’s failure “‘to call a witness who
has some knowledge of the matter under investigation may be commented upon.’” State
v. D’Ambrosio,
67 Ohio St.3d 185, 193 (1993), quoting State v. Petro,
148 Ohio St. 473,
498 (1948).
{¶23} Crim.R. 16(I) provides:
Witness List. Each party shall provide to opposing counsel a written
witness list, including names and addresses of any witness it intends to call
in its case-in-chief, or reasonably anticipates calling in rebuttal or
surrebuttal. The content of the witness list may not be commented upon or
disclosed to the jury by opposing counsel, but during argument, the
presence or absence of the witness may be commented upon.
(Emphasis added.)
{¶24} In Ford, the Ohio Supreme Court concluded that the trial court erred in
sustaining an objection to the defense argument on the State’s failure to call a witness.
Id. at ¶ 310. However, the Court determined that the erroneous ruling was harmless
beyond a reasonable doubt because there was “DNA evidence linking” the defendant to
the murders as well as a confession. Id. at ¶ 311.
10
Case No. 2024-A-0046
{¶25} In this case, we similarly conclude that the trial court erred in sustaining the
State’s objection to the defense closing arguments. The trial court should have permitted
trial counsel to comment upon the State’s failure to call D.L.’s father as a corroborating
witness. However, we conclude that this error was harmless beyond a reasonable doubt.
{¶26} To sustain a conviction under R.C. 2907.04(A), Unlawful Sexual Conduct
with a Minor, the State must prove that Appellant engaged in sexual conduct with D.L.
when Appellant knew D.L. was 13 years of age or older but less than 16 years of age, or
that Appellant was reckless in that regard. The lab results from BCI indicated D.L.’s rape
kit and D.L.’s underwear contained DNA consistent with Appellant. Further, D.L. testified
that Appellant asked her numerous times about her driver’s license and that her father
and Teresa both said that she was only 15 years old and did not have a learner’s permit.
D.L. also said that Appellant individually asked people at the party their age and that D.L.
told him her age. Although D.L.’s father was not called to corroborate this testimony, D.L.’s
brother, Michael, testified that Appellant asked about D.L.’s age and said that D.L. told
Appellant she was too young to drive.
{¶27} Therefore, the trial court’s erroneous exclusion of the comment during
closing arguments is harmless, as D.L.’s father would have been the third person to testify
to that fact.
{¶28} Accordingly, Appellant’s first assignment of error is without merit.
{¶29} Appellant’s second assignment of error states: “The trial court committed
reversible error in permitting the State to introduce inadmissible hearsay statements and
irrelevant and prejudicial evidence, over his objection, in violation of Appellant’s
constitutional rights secured under the Fifth, Sixth and Fourteenth Amendments to the
11
Case No. 2024-A-0046
United States Constitution and Article I, Sections 10 and 16 of the Ohio Constitution. (Tr.
Vol. 2 at 119-124; Tr. Vol. 5 at 367-68; Tr. Vol. 4 at 334-35; Tr. Vol. 5 at 369-375; Tr. Vol.
5 at 483-84, 486-87; Tr. Vol. 5 at 435-445).”
{¶30} Appellant next argues that the trial court erred by admitting inadmissible
evidence. First, he argues it was error for the court to admit improper other acts evidence
that Appellant attempted to coerce D.L. to engage in sexual conduct with Tony. Second,
he argues the trial court erred in permitting the SANE nurses to read inadmissible hearsay
narrative statements into evidence.
{¶31} However, we substantively addressed both of these issues in Volpi I, 2023-
Ohio-4488 (11th Dist.). We said that Appellant’s arguments as to other acts evidence
were “not well taken” because Appellant’s statement and conduct “were admissible under
Evid.R. 404(B)(2) to prove Appellant’s knowledge of D.L.’s age and his absence of
mistake in engaging in sexual conduct with her. Id. at ¶ 94. Finally, the probative value of
this evidence was not substantially outweighed by the danger of unfair prejudice.” Id. at ¶
95. Appellant’s arguments that this interaction took place after Appellant’s last sexual
encounter with D.L. is incorrect. Appellant engaged in sexual conduct with D.L. at the
party shop, then talked to Tony, and then engaged in sexual conduct with D.L. again in
the bedroom at the end of the evening. Further, this information would go to the weight of
this evidence but would not render it inadmissible. It was still relevant for the jury to hear
in considering Appellant’s knowledge and absence of mistake.
{¶32} In Volpi I we also said, “the statements in the forensic interviews were
admissible hearsay under Evid.R. 803(4) because they had been made for the purpose
of medical diagnosis.” Id. at ¶ 87. We further said that the forensic interviews, although
12
Case No. 2024-A-0046
testimonial in nature, did not violate the Confrontation Clause because Appellant “had the
full ability to cross-examine both victims. . . . Because appellant had the opportunity to
confront the witnesses, the trial court’s decision to allow the full video recordings did not
violate his right to confrontation.” Id. at ¶ 88.
{¶33} Accordingly, Appellant’s second assignment of error is without merit.
{¶34} Appellant’s third assignment of error states: “Appellant’s convictions on
counts 24 to 28 are against the manifest weight of the evidence. (Tr. Vol. 5 at 496-519;
T.d. 389, May 2, 2024, Judgment Entry).”
{¶35} Appellant argues his convictions for Unlawful Sexual Conduct with a Minor
involving D.L. were against the manifest weight of the evidence because of
inconsistencies in her testimony, the jury’s finding of not guilty on several counts, and the
State’s failure to call D.L.’s father as a corroborating witness.
{¶36} When evaluating the weight of the evidence, we review whether the
inclination of the greater amount of credible evidence, offered in a trial, to support one
side of the issue rather than the other indicated clearly to the jury that the party having
the burden of proof was entitled to a verdict in its favor, if, on weighing the evidence in
their minds, the greater amount of credible evidence sustained the issue which is to be
established before them. “Weight is not a question of mathematics but depends on its
effect in inducing belief.” (Emphasis deleted.) State v. Thompkins, 78 Ohio St.3d 380, 387
(1997). Whereas sufficiency relates to the evidence’s adequacy, weight of the evidence
relates to the evidence’s persuasiveness.
Id. at 386-387.
{¶37} The trier of fact is the sole judge of the weight of the evidence and the
credibility of the witnesses. State v. Landingham, 2021-Ohio-4258, ¶ 22 (11th Dist.). The
13
Case No. 2024-A-0046
trier of fact may believe or disbelieve any witness in whole or in part, considering the
demeanor of the witness and the manner in which a witness testifies, the witness’ interest,
if any, in the outcome of the case, and the witness’ connection with the prosecution or the
defendant. Id.. This Court, engaging in the limited weighing of the evidence introduced
at trial, is deferential to the weight and factual findings made by the factfinder. State v.
Brown, 2003-Ohio-7183, ¶ 52 (11th Dist.), citing
Thompkins at 390 (Cook, J., concurring),
and State v. DeHass,
10 Ohio St.2d 230, 227 (1967), paragraph two of the syllabus. The
reviewing court “determines whether . . . the [factfinder] clearly lost its way and created
such a manifest miscarriage of justice that the conviction must be reversed and a new
trial ordered. The discretionary power to grant a new trial should be exercised only in the
exceptional case in which the evidence weighs heavily against the conviction.” State v.
Martin,
20 Ohio App.3d 172, 175 (1st Dist. 1983).
{¶38} A finding that a judgment is supported by the manifest weight of the
evidence necessarily means the judgment is supported by sufficient evidence. State v.
Arcaro, 2013-Ohio-1842, ¶ 32 (11th Dist.).
{¶39} Appellant was convicted on one count of Unlawful Sexual Conduct with a
Minor, in violation of R.C. 2907.04(A), which provides: “No person who is eighteen years
of age or older shall engage in sexual conduct with another when the offender knows the
other person is thirteen years of age or older but less than sixteen years of age, or the
offender is reckless in that regard.” When the offender is ten or more years older than the
victim, the offense is a third-degree felony. R.C. 2907.04(B)(3).
{¶40} R.C. 2907.01(A) defines “sexual conduct” as “vaginal intercourse between
a male and female; anal intercourse, fellatio, and cunnilingus between persons regardless
14
Case No. 2024-A-0046
of sex; and, without privilege to do so, the insertion, however slight, of any part of the
body or any instrument, apparatus, or other object into the vaginal or anal opening of
another. Penetration, however slight, is sufficient to complete vaginal or anal intercourse.”
{¶41} R.C. 2907.04(A) includes a “reckless” standard with respect to a
defendant’s knowledge of the juvenile’s age. R.C. 2901.22(C) states in relevant part: “A
person is reckless with respect to circumstances when, with heedless indifference to the
consequences, the person disregards a substantial and unjustifiable risk that such
circumstances are likely to exist.”
{¶42} There is overwhelming evidence that Appellant engaged in sexual conduct
with D.L. BCI identified Appellant’s DNA on D.L.’s underwear and in her rape test kit. D.L.
testified about multiple encounters with Appellant and described the nature of each
encounter in detail. Further, there is also no question that Appellant was ten or more years
older than D.L. The only remaining question is whether Appellant either knew D.L. was
less than 16 years old or was reckless in that regard.
{¶43} Appellant argues that Tiara Babbit testified that she believed D.L. was at
least 16 years old based on her appearance, attitude, and willingness to engage in sexual
conduct. He also argues that D.L.’s testimony was not credible, and her father did not
corroborate her testimony that she told Appellant she was under 16 years old.
{¶44} While these arguments raise fair factual points that would weigh against
conviction, the jury, as the sole judge of the credibility of the witnesses, was free to believe
all or part of any witness’ testimony. This Court engages in a limited weighing of the
evidence and gives deference to the weight and findings made by the jury, determining
15
Case No. 2024-A-0046
whether it “clearly lost its way” in an exceptional case where the evidence “weighs heavily
against the conviction.” Martin, 20 Ohio App.3d at 175.
{¶45} The weight of the evidence supports the jury’s finding that Appellant either
knew D.L. was less than 16 years old or was reckless in that regard for several reasons.
First, Tiara Babbit’s testimony that she thought D.L. was older than 16 years old does not
mean that Tiara Babbit was not acting recklessly in that regard. While this is indeed
evidence that would support Appellant’s defense, it is not alone a determining fact but
one fact among many the jury was free to weigh.
{¶46} As to D.L.’s credibility, there was significant evidence that would support the
jury’s conclusion that Appellant either knew her age or acted recklessly in that regard. For
instance, this party was not the first time that Appellant had met D.L., and Appellant’s
daughter was dating D.L.’s father. Michael said he and D.L. were around Appellant
frequently for family activities.
{¶47} At the party, D.L. said that Appellant asked numerous times about her ability
to drive and D.L. told him that she was only 15 and did not yet have her learner’s permit.
Although D.L.’s father was not called to corroborate this testimony, D.L.’s brother,
Michael, testified that Appellant asked about D.L.’s age and said that D.L. told Appellant
she was too young to drive.
{¶48} Appellant also asked people at the party about their ages, and both A.W.
and D.L. told Appellant how old they were. Appellant told his friend Tony that D.L. would
be good in bed. D.L. said that Tony knew how old she was. This testimony was relevant
to establish that Appellant knew D.L.’s age or was reckless in that regard.
16
Case No. 2024-A-0046
{¶49} In giving deference to the factual findings the jury made regarding the
weight to be given to the evidence and credibility of the witnesses, the evidence does not
weigh heavily against conviction. See State v. Gross, 2012-Ohio-3020, ¶ 66 (11th Dist.).
The jury did not lose its way in determining that Appellant engaged in sexual conduct with
D.L. and that Appellant knew D.L. was less than 16 years of age or was reckless in that
regard.
{¶50} Accordingly, Appellant’s third assignment of error is without merit.
{¶51} Appellant’s fourth assignment of error states: “The trial court’s order of
consecutive sentences is contrary to law and violates Appellant’s constitutional right to
due process of law. (T.D. 391, May 1, 2024 Re-sentencing T.p. at 15, 19, 33-34; T.d. 389,
May 2, 2024, Judgment Entry).”
{¶52} Appellant sets forth five reasons why the trial court erred in imposing a
consecutive sentence: (1) the trial court failed to make the necessary statutory findings
to overcome the presumption against consecutive sentences; (2) the record does not
support the imposition of consecutive sentences; (3) the trial court failed to consider the
number of sentences it imposed and failed to consider the aggregate resulting sentence;
(4) the consecutive sentences were based on incorrect information; and (5) the trial court
erroneously imposed consecutive sentences based on the fact that there were two
victims.
{¶53} R.C. 2953.08(G)(2) provides that an appellate court may increase, reduce,
or otherwise modify consecutive sentences only if the record does not “clearly and
convincingly” support the trial court’s R.C. 2929.14(C)(4) consecutive-sentence findings.
17
Case No. 2024-A-0046
{¶54} There are three ways an appellant can challenge consecutive sentences on
appeal. State v. Gibbs, 2022-Ohio-4792, ¶ 64 (11th Dist.). First, the appellant may argue
that the sentencing court failed to state the findings for consecutive sentences that R.C.
2929.14(C)(4) requires. State v. Lautanen,
2023-Ohio-1945, ¶ 84 (11th Dist.); R.C.
2953.08(G)(1). Second, an appellant may argue that the record clearly and convincingly
does not support the findings the sentencing court made to justify consecutive sentences.
State v. Lewis at ¶ 7; R.C. 2953.08(G)(2)(a). Third, an appellant may argue that his
sentence is clearly and convincingly otherwise contrary to law. R.C. 2953.08(G)(2)(b).
{¶55} R.C. 2929.14(C)(4) provides:
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.
{¶56} A sentencing court is required to make three distinct findings in order to
require an offender to serve consecutive prison terms: (1) that consecutive sentences are
“necessary to protect the public from future crime or to punish the offender;” (2) that
18
Case No. 2024-A-0046
consecutive sentences are “not disproportionate to the seriousness of the offender's
conduct and to the danger the offender poses to the public;” (3) “and . . . also” that one of
the circumstances described in subdivision (a) to (c) is present. State v. Woofter, 2019-
Ohio-1166, ¶ 13 (11th Dist.), citing State v. Beasley, 2018-Ohio-493, ¶ 252.
{¶57} In making its findings for consecutive sentences, the sentencing court is
required to engage in the analysis for consecutive sentencing and specify the statutory
criteria warranting its decision. State v. Bonnell, 2014-Ohio-3177, ¶ 26. While the
sentencing court is not required to state exact reasons supporting its findings, the record
must contain a clear basis upon which a reviewing court can determine that the
sentencing court’s findings for imposing consecutive sentences are supported by the
record. Id. at ¶ 27-28. In making its findings, the trial court is not “required to give a
talismanic incantation of the words of the statute, provided that the necessary findings
can be found in the record and are incorporated into the sentencing entry.” Id. at ¶ 37.
{¶58} Appellant argues that the trial court did not make the necessary statutory
findings as required by R.C. 2929.14(C)(4) to impose consecutive sentences at the
hearing.
{¶59} Relying on the recent Ohio Supreme Court decision in State v. Jones, 2024-
Ohio-1083, the State argues that the record of the sentencing hearing contains sufficient
indicia that the trial court found that consecutive sentences were necessary based on the
statutory criteria. In Jones, the Court said that the “transcript of Jones’s sentencing
hearing clearly shows that the trial court made the findings necessary to impose
consecutive sentences, and Jones has not demonstrated that those findings were not
supported by the record.” Id. at ¶ 15. For example, the trial court said that it was imposing
19
Case No. 2024-A-0046
consecutive sentences because it was necessary to protect the public from future crime,
and the trial court cited appellant’s prior arrest history, saying he had committed crime
“over and over again.” Id. The trial court then said that a total 60-month sentence was
“not disproportionate to the crime you have committed in this case” and that Jones had
committed one or more of the offenses while awaiting trial or sentencing. Id.
{¶60} The Ohio Supreme Court concluded these statements “reflect a clear
finding by the trial court that ‘consecutive service is necessary to protect the public from
future crime . . . and that consecutive sentences are not disproportionate to the
seriousness of [Jones’s] conduct and to the danger [he] poses to the public,’ R.C.
2929.14(C)(4).” Id. at ¶ 16. Thus, while not a talismanic incantation of the consecutive
sentence findings, the trial court did address each of the required findings contained in
R.C. 2929.14(C)(4). Id.
{¶61} In this case, the trial court said the following in refence to consecutive
sentences:
The Court finds that at least two of the multiple offenses were committed as
part of one or more courses of conduct, and the harm cause[d] by the two
or more multiple offenses was so great or unusual that no single prison term
for the offenses committed as part of any of the courses of conduct
adequately reflects the seriousness of the offender’s conduct.
So, I am ordering that the sentences on Counts Twenty-Four, Twenty-Five,
Twenty-Six, Twenty-Seven, and Twenty-Eight be served consecutively to
each other and consecutive to the sentence in Count Twelve. So, on these
five counts, it would be 25 years consecutive to Count Twelve.
{¶62} The above statement exclusively addressed R.C. 2929.14(C)(4)(b). Notably
absent is any reference to, or consideration of, whether the consecutive sentences were
necessary to protect the public from future crime or to punish the offender or whether
20
Case No. 2024-A-0046
consecutive sentences were not disproportionate to the seriousness of Appellant’s
conduct or the danger Appellant posed to the public.
{¶63} In Jones, the trial court made statements at the sentencing hearing that
demonstrated the trial court had made all necessary findings under R.C. 2929.14(C) in
order to impose consecutive sentences, citing the defendant’s extensive arrest history
and saying that the sentence was necessary to protect the public from future crime. The
trial court also specifically said that a 60-month sentence was “not disproportionate.”
Jones at ¶ 15.
{¶64} Viewing Appellant’s sentencing hearing in its entirety, we cannot say the
same thing here.
{¶65} As to the necessity to protect the public from future crime or punish the
offender, the trial court did discuss the R.C. 2929.12 seriousness and recidivism factors.
There is overlap with the necessary findings that consecutive sentences are necessary
to protect the public from future crime and punish the offender. The trial court said that
the case involved multiple victims and that recidivism appeared likely. The concern for
recidivism can constitute a finding that consecutive sentences are necessary to protect
the public from future crime.
{¶66} So, the trial court “arguably made comments that could be construed as a
finding that consecutive sentences were necessary to protect the public from future crime
and/or punish” the offender. Woofter, 2019-Ohio-1166, at ¶ 16 (11th Dist.) (where the trial
court referenced the defendant’s repeated community control violations and danger to the
public); see Bonnell,
2014-Ohio-3177, at ¶ 33 (where the trial court stated the defendant
21
Case No. 2024-A-0046
had shown little respect for society and found his record to be “atrocious,” demonstrating
the need for consecutive sentences to protect the public from future crime).
{¶67} However, during the sentencing hearing the trial court never referenced or
commented upon the proportionality of Appellant’s total sentence. See Woofter at ¶ 17.
We find nothing in the record that would indicate the trial court made a proportionality
finding. Appellant raised State v. Glover,
2024-Ohio-5195, during oral arguments to argue
in support of his position against the imposition of consecutive sentences. However, that
case is inapt because in Glover, the trial court did make the necessary proportionality
findings, with which the First District took issue and reversed. The Ohio Supreme Court
plurality decision held that the imposition of consecutive sentences was appropriate and
not disproportionate to the seriousness of the defendant’s conduct and danger he posed
to the public. See
Id. at ¶ 53
{¶68} There is a presumption that sentences will be served concurrently. Jones,
2024-Ohio-1083, at ¶ 11. Although the trial court said that it did not believe Appellant
should not serve additional time in a case where there are multiple victim, the trial court
also acknowledged that consecutive sentences are not mandatory in this case. Because
consecutive sentences are not mandatory here, there is a presumption that the sentences
will be served concurrently. We cannot overlook the record’s lack of a proportionality
finding necessary to impose consecutive sentences under R.C. 2929.14(C)(4).
{¶69} When, as here, “the findings at the sentencing hearing and in the sentencing
entry are insufficient to satisfy the requirements of R.C. 2929.14(C)(4), it is well-
established that remand for resentencing is necessary to correct the error.” Woofter at ¶
19, citing Beasley,
2018-Ohio-493, at ¶ 260.
22
Case No. 2024-A-0046
{¶70} Accordingly, Appellant’s fourth assignment of error has merit.
{¶71} Appellant’s fifth assignment of error states: “The trial court’s sentences on
Counts 24 to 28 are contrary to law and unconstitutional because in imposing sentence,
the trial court considered Appellant’s silence at trial, in violation of his constitutional right
against self-incrimination secured by the Fifth and Fourteenth Amendments to the United
States Constitution and Article I, Section 10 of the Ohio Constitution. (T.d. 389, May 2,
2024, Judgment Entry; T.d. 391, Re-sentencing Tp. At 18).”
{¶72} Appellant’s sixth assignment of error states: “The trial court’s imposition of
an aggregate sentence of 36 years to 41.5 years imprisonment under the circumstances
of this case amounts to cruel and unusual punishment under the Eighth Amendment of
the United States Constitution and Article I, Section 9 of the Ohio Constitution. (T.d. 389,
May 2, 2024, Judgment Entry).”
{¶73} Appellant’s fifth and sixth assignments of error both relate to the trial court’s
imposition of sentence. As we have found it necessary to reverse and remand for
resentencing, these assignments of error are rendered moot.
23
Case No. 2024-A-0046
{¶74} For the foregoing reasons, the judgment of the Ashtabula County Court of
Common Pleas is affirmed in part, reversed in part, and remanded. The matter is
remanded to the trial court to resentence Appellant. If the trial court imposes consecutive
sentences, the trial court is instructed to make all necessary findings as required by R.C.
2929.14(C)(4).
MATT LYNCH, J.,
ROBERT J. PATTON, J.,
concur.
24
Case No. 2024-A-0046
