[Cite as State v. Bender,
2025-Ohio-760.]
COURT OF APPEALS
COSHOCTON COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. Kevin W. Popham, J.
Hon. David M. Gormley, J.
-vs-
DAKOTA G. BENDER Case No. 2024CA0019
Defendant-Appellant OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Coshocton County Court
of Common Pleas, Case No. 23 CR 0059
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 6, 2025
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CHRISHANA L. CARROLL CHRISTOPHER BAZELEY
Assistant Prosecuting Attorney 9200 Montgomery Road, Suite 8A
318 Chestnut Street Cincinnati, Ohio 45242
Coshocton, Ohio 43812
Hoffman, P.J.
{¶1} Defendant-appellant Dakota Bender appeals the judgment entered by the
Coshocton County Common Pleas Court convicting him following his pleas of guilty to
four counts of unlawful sexual conduct with a minor (R.C. 2907.04(A), (B)(1)) and
sentencing him to an aggregate prison term of fifty-four months. Plaintiff-appellee is the
State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} In November of 2020, Appellant, who was eighteen years old, was living in
the same home as the victim, who was thirteen years old. Appellant engaged in a sexual
relationship with the victim from November of 2020, to May of 2022. Appellant was
indicted by the Coshocton County Grand Jury with four counts of unlawful sexual conduct
with a minor.
{¶3} Appellant entered a plea of guilty to all four counts of the indictment. The
trial court convicted Appellant upon his pleas, and sentenced Appellant to an aggregate
term of incarceration of fifty-four months.
{¶4} It is from the July 30, 2024 judgment of the trial court Appellant prosecutes
his appeal, assigning as error:
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
FAILED TO ALLOW BENDER OR HIS ATTORNEY TO RESPOND TO THE
VICTIM IMPACT STATEMENT.
{¶5} Appellant argues he was denied his right to respond to the victim impact
statement, which was read into the record at sentencing. We disagree.
{¶6} R.C. 2930.14(B) provides:
(B) The court shall consider a statement made by a victim or victim's
representative under division (A) of this section along with other factors that
the court is required to consider in imposing sentence or in determining the
order of disposition. If the statement includes new material facts, the court
shall not rely on the new material facts unless it continues the sentencing
or dispositional proceeding or takes other appropriate action to allow the
defendant or alleged juvenile offender an adequate opportunity to respond
to the new material facts.
{¶7} Appellant cites State v. Campbell, 2000-Ohio-183, for the proposition if he
was denied his right to respond to the victim impact statement, prejudice is presumed and
we must remand for resentencing. We disagree. Campbell did not address the rights
provided by R.C. 2930.14(B), but rather considered the defendant’s right of allocution
provided by Crim. R. 32(A)(1), which requires the trial court to “address the defendant
personally and ask if he or she wishes to make a statement in his or her own behalf or
present any information in mitigation of punishment.” R.C. 2930.14(B) does not provide
a second absolute “right of allocution” as suggested by Appellant. In contrast to Crim. R.
32, the statute does not require the trial court to ask the defendant personally if he or she
wishes to respond to the victim impact statement. Rather, the statute requires that before
the trial court may rely on new material facts presented in the victim impact statement,
the trial court must give the defendant an opportunity to respond to the new material facts,
whether by continuing the hearing or other means. We find Campbell inapplicable to the
instant case.
{¶8} The victim impact statement was read into the record as follows:
Dakota, for the past three and a half years, roughly, I have dealt with
pain, fear, sadness, confusion, but mostly anger. I hate you for what you
did to me. But I hate you more for the fact that you got my trust and you
took it to your advantage. At one point in my life, you were my best friend,
and I trusted you with my life. You were my big brother, the person I trusted
to keep me safe and protected, until you were the one I needed protected
from. Because of you, I was put through hell. Because of you, I was scared
for my life. I had just turned 13 years old when everything started. I was
still a child, and you took something from me that I can never get back.
People have called me names. People have told me that I’m lying. People
have even put me down for speaking up against you, and I can’t blame them
because they don’t know the real you, just like me before everything
happened. I never would have thought that you would do what you did to
me. I never knew why you did it, and I may never know. But I do know –
what I do know is what you did to me has ruined my life. Because of you, I
will forever keep my guard up and watch my surroundings closely. Because
of you, I will never be able to fully trust another person. Because of you,
there will always be this fear that never goes away. You hurt me more than
anyone in my life. I remember the nights I would cry myself to sleep,
wondering if it was ever going to end. Wondering why you did it. I can
never truly put into words how bad this has affected my life, but I can say
those years you did those things to me were the worst years I have ever
experienced in my life.
{¶9} Sent. Tr. 5-6.
{¶10} The trial court stated at the sentencing hearing:
In reviewing the pre-sentence investigation report, the Court finds
from the official version of the facts of the offense that the defendant was
living in the same home as the victim, [name omitted], at the time of the
commission of the four offenses. And in that sense, Dakota Bender was
provided with a place to live. The defendant abused that trust in order to
essentially talk [the victim] into a relationship. And it’s clear, not only from
the indictment, from the pre-sentence investigation report, but also from the
victim impact statement, that [the victim] was a child of tender years. She
was only 13 years old.
The Court does note the harmful impact of these types of offenses
on a child of such tender age.
Mr. Bender, after you have completed your first offense here with a
13-year-old girl, you should have known better. Yet, you continued to
perpetrate these crimes against a child of tender years. And the victim
impact statement as set forth from the witness stand and pre-sentence
investigation report notes the nature of harm cause to a child in these
situations.
{¶11} Sent. Tr. 6-7, 9.
{¶12} The victim impact statement recounts the mental and emotional effect of
Appellant’s actions on the victim, but does not set forth new material facts which the trial
court relied upon in sentencing Appellant. Compare, State v. Daugherty, 2002-Ohio-1183
(11th Dist.) (victim commented about prior violent conduct by the defendant, despite no
prior convictions of abusing the victim); State v. Ali,
2019-Ohio-3864 (10th Dist.) (victim’s
statement referenced presence of his young child during the robbery); State v. Sturgeon,
138 Ohio App. 3d 882 (1st Dist. 2000) (victim impact statement alleged defendant
“whipped” his child). While the trial court in sentencing stated it had considered the victim
impact statement, as it is statutorily required to do, the trial court specifically stated the
facts of the offense upon which it relied were taken from the presentence investigation
report. The trial court referred to the victim impact statement for the impact of the crimes
on the young victim, but cited to no new material facts from the victim impact statement.
We find because the trial court did not rely on new material facts in the victim impact
statement in sentencing Appellant, the trial court was not required to continue the case
or take other action to give Appellant an opportunity to respond.
{¶13} In addition, at the end of the sentencing hearing, the trial court asked
counsel for Appellant if she had anything further. She responded in the negative. Tr. 16.
At this point, counsel for Appellant could have asked for an opportunity to respond to the
victim impact statement. Although the trial court had orally pronounced sentence from
the bench, the sentence was not yet journalized. It is axiomatic a court of record speaks
only through its journal, and not by oral pronouncement, and thus the sentence was not
yet final. See, e.g, Schenley v. Kauth, 160 Ohio St. 109,
113 N.E.2d 625 (1953),
paragraph one of the syllabus. Thus, the trial court did give Appellant an opportunity to
respond to the victim impact statement before the sentence was final, and Appellant failed
to avail himself of the opportunity.
{¶14} The assignment of error is overruled. The judgment of the Coshocton
County Common Pleas Court is affirmed.
By: Hoffman, P.J.
Popham, J.
Gormley, J. concur
