[Cite as State v. Clark,
2024-Ohio-4976.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY
STATE OF OHIO, CASE NO. 2024-T-0030
Plaintiff-Appellee,
Criminal Appeal from the
- vs - Court of Common Pleas
NICHOLAS ALEXANDER CLARK,
Trial Court No. 2023 CR 00730
Defendant-Appellant.
OPINION
Decided: October 15, 2024
Judgment: Affirmed
Dennis Watkins, Trumbull County Prosecutor, and Ryan J. Sanders, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481 (For Plaintiff-Appellee).
Eric D. Hall, P.O. Box 232, Medina, OH 44258 (For Defendant-Appellant).
EUGENE A. LUCCI, P.J.
{¶1} Appellant, Nicholas Alexander Clark, appeals the judgment of conviction on
multiple charges of rape and one charge of gross sexual imposition. We affirm.
{¶2} In 2022, Clark’s minor nephews disclosed to their parents that Clark had
acted inappropriately toward them. In 2023, Clark was indicted on charges based upon
the nephews’ allegations. With respect to the younger nephew, born in 2009, Clark was
charged in counts one, two, and three with first-degree felony rape of a child less than 13
years of age, in violation of R.C. 2907.02(A)(1)(b) and (B), with factual findings that Clark
purposely compelled the victim to comply through force or the threat of force pursuant to
2971.03(B)(1)(c), and with a factual finding attendant to the third count that the victim was
less than ten years of age pursuant to R.C. 2971.03(B)(1)(b). Also, with respect to the
younger nephew, Clark was charged in count four with third-degree felony gross sexual
imposition of a child less than thirteen years of age, in violation of R.C. 2907.05(A)(4) and
(C). With respect to the older nephew, born in 2008, Clark was charged in counts five and
six with first-degree felony rape, in violation of R.C. 2907.02(A)(2) and (B). Also, with
respect to the older nephew, in counts seven and eight, Clark was charged with first-
degree felony rape of a child less than thirteen years of age, in violation of R.C.
2907.02(A)(1)(b) and (B), with factual findings that the victim was less than ten years of
age pursuant to R.C. 2971.03(B)(1)(b) and that Clark purposely compelled the victim to
comply through force or the threat of force pursuant to 2971.03(B)(1)(c).
{¶3} Clark pleaded not guilty to the charges, and the case proceeded to jury trial.
The jury found Clark guilty on all charges and found that he did commit the offenses in
accordance with the factual findings identified in the indictment. Thereafter, the court
imposed concurrent prison sentences of 25 years to life on count one, 25 years to life on
count two, life without parole on count three, 48 months on count four, 10 to 15 years on
count five, 10 years on count six, life without parole on count seven, and life without parole
on count eight, for a total prison sentence of life without parole.
{¶4} In his first and second assigned errors, Clark contends:
[1.] The evidence was insufficient to support the jury’s verdicts
of “guilty” with respect to the charged offenses of Rape in
Counts I-III and V-VIII, and with respect to the charged offense
of Gross Sexual Imposition in Count IV.
[2.] Defendant-Appellant’s convictions as to all counts were
against the manifest weight of the evidence.
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{¶5} The question of whether sufficient evidence supports a conviction “is a test
of adequacy,” which we review de novo. State v. Thompkins, 1997-Ohio-52, 386. “In a
sufficiency-of-the-evidence inquiry, the question is whether the evidence presented, when
viewed in a light most favorable to the prosecution, would allow any rational trier of fact
to find the essential elements of the crime beyond a reasonable doubt.” State v. Dent,
2020-Ohio-6670, ¶ 15, citing State v. Jenks,
61 Ohio St.3d 259 (1991), paragraph two of
the syllabus.
{¶6} Unlike a review of the sufficiency of the evidence, our review of the “[w]eight
of the evidence concerns ‘the inclination of the greater amount of credible evidence . . .
to support one side of the issue rather than the other.’” (Emphasis in original.) Thompkins
at 387, quoting Black’s Law Dictionary (6th Ed. 1990). When considering challenges to
the weight of the evidence, an appellate court reviews “‘the entire record, weighs the
evidence and all reasonable inferences, considers the credibility of witnesses and
determines whether in resolving conflicts in the evidence, the jury clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed and
a new trial ordered.’”
Thompkins at 387, quoting State v. Martin,
20 Ohio App.3d 172, 175
(1st Dist. 1983). “When a court of appeals reverses a judgment of a trial court on the basis
that the verdict is against the weight of the evidence, the appellate court sits as a
‘“‘thirteenth juror’”’ and disagrees with the factfinder’s resolution of the conflicting
testimony.”
Thompkins at 387, quoting Tibbs v. Florida,
457 U.S. 31, 42 (1982). “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.”
Thompkins at 387, quoting
Martin at 175.
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{¶7} Here, the jury found Clark guilty of four counts of rape pertaining to Clark’s
older nephew and three counts of rape pertaining to Clark’s younger nephew, and one
count of gross sexual imposition pertaining to Clark’s younger nephew. Two of the rape
counts as to the older nephew and all of the rape counts as to the younger nephew were
charged under former R.C. 2907.02(A)(1)(b), which provides that “[n]o person shall
engage in sexual conduct with another who is not the spouse of the offender or who is
the spouse of the offender but is living separate and apart from the offender, when . . .
[t]he other person is less than thirteen years of age, whether or not the offender knows
the age of the other person . . . .”1 The remaining two rape counts as to the older nephew
were charged under former R.C. 2907.02(A)(2), which provides that “[n]o person shall
engage in sexual conduct with another who is not the spouse of the offender or who is
the spouse of the offender but is living separate and apart from the offender, when the
offender purposely compels the other person to submit by force or threat of force.”2
“Sexual conduct” includes anal intercourse. R.C. 2907.01(A). “Penetration, however
slight, is sufficient to complete vaginal or anal intercourse.” Id.
{¶8} With respect to “force” as an element of R.C. 2907.02(A)(2) and as a factual
finding pursuant to R.C. 2971.03(B)(1)(b), R.C. 2901.01(A)(1) defines “force” as any
“violence, compulsion, or constraint physically exerted by any means upon or against a
person or thing.” In State v. Eskridge, 38 Ohio St.3d 56 (1988), paragraph one of the
syllabus, which involved the rape of a child by a parent, the Ohio Supreme Court held:
1. R.C. 2907.02(A) was recently amended affective August 9, 2024 to remove the following language “who
is not the spouse of the offender or who is the spouse of the offender but is living separate and apart from
the offender[.]"
2. See footnote one.
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The force and violence necessary to commit the crime of rape
depends upon the age, size and strength of the parties and
their relation to each other. With the filial obligation of
obedience to a parent, the same degree of force and violence
may not be required upon a person of tender years, as would
be required were the parties more nearly equal in age, size
and strength.
The Court further stated, “Force need not be overt and physically brutal, but can be subtle
and psychological,” and the forcible element of rape can be established “[a]s long as it
can be shown that the rape victim’s will was overcome by fear or duress[.]” Id. at 58-59.
Thereafter, in State v. Dye,
1998-Ohio-234, syllabus, the Ohio Supreme Court held, “A
person in a position of authority over a child under thirteen may be convicted of rape of
that child with force pursuant to R.C. 2907.02(A)(1)(b) and (B) without evidence of
express threat of harm or evidence of significant physical restraint.”
{¶9} Here, the trial court instructed the jury on the Eskridge/Dye definition of
“force” without objection, as follows:
When a relationship between the victim and Defendant is one
of child and parent or other authority figure, the element of
force need not be openly displayed or physically brutal. It can
be subtle or slight and psychological or emotionally powerful.
Evidence of an expressed threat of harm or evidence of
significant physical restraint is not required. If you find beyond
a reasonable doubt that under the circumstances in evidence
the victim’s will was overcome by fear, duress, or intimidation,
the element of force has been proven.
{¶10} In addition to the rape counts, with respect to Clark’s younger nephew, Clark
was charged with gross sexual imposition, in violation of R.C. 2907.05(A)(4), which
provides, “No person shall have sexual contact with another; cause another to have
sexual contact with the offender; or cause two or more other persons to have sexual
contact when . . .[t]he other person, or one of the other persons, is less than thirteen years
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of age, whether or not the offender knows the age of that person.” “‘Sexual contact’ means
any touching of an erogenous zone of another, including without limitation the thigh,
genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of
sexually arousing or gratifying either person.” R.C. 2907.01(B).
{¶11} In support of the charges at trial, the State presented the testimony of
Clark’s two nephews, the nephews’ parents, a police officer, and a nurse practitioner.
{¶12} The testimony indicated that Clark’s nephews, who had never been married,
were aged 14 and 15 at the time of trial in 2024, and are the children of Clark’s sister and
her husband. The family lived in a trailer in Girard, Ohio, until approximately 2017, when
they moved to a house in Niles, Ohio, where they continued to reside. When his sister’s
family lived in Girard, Clark resided with his brother at a house in Liberty, Ohio. At some
point thereafter, Clark, his brother, and his brother’s girlfriend moved in with Clark’s
sister’s household at the Niles residence. Clark stayed in a bedroom in the basement of
the Niles home. After several months, Clark’s brother and his girlfriend moved from the
house, but Clark continued living in his sister’s residence for approximately a year before
moving. However, he later returned to live at his sister’s residence in approximately
February 2021, on the condition that he remain employed. In about February 2022, Clark
quit his job, and his sister’s husband directed Clark to move from the home, which he did.
{¶13} Clark’s sister indicated that while Clark was residing with her family, he
would babysit the nephews. Clark’s sister had instructed the boys to do as Clark told
them. The sister had noticed that Clark’s older nephew would sometimes disrespectfully
leave a room if Clark entered. Clark’s sister instructed the boy to be polite, and not to “be
mean” to Clark.
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{¶14} In addition, with respect to the older nephew, Clark’s sister and her husband
noticed that the boy had become combative and argumentative, and he had begun
isolating himself quite frequently while Clark resided with them. The older nephew also
gained significant amounts of weight over short periods of time. Further, the older nephew
became very protective of his younger sister, who was born in 2019. The boy would
isolate himself and his sister in his parents’ room, and, when asked, explained that he did
not want the sister around Clark because Clark was smoking around her. The father did
not believe Clark was smoking around the child, as he could not smell any odor of residual
cigarette smoke in the home, but he did not press the issue with the child at that time.
The older nephew also repeatedly told his parents that he wanted Clark to move from
their home because he wanted Clark’s basement bedroom. However, once Clark moved
from the home, the boy did not move into the basement bedroom, and did not again
mention any desire to do so.
{¶15} Clark’s sister explained that the older nephew has a disease affecting his
kidney function, for which he has seen a doctor once a month since he was approximately
four years old. The boy has also attended weekly therapy sessions for several years due
to his attitude and anger issues. Clark’s sister acknowledged that neither his medical
providers nor the therapist had indicated any suggestion of sexual abuse prior to the
nephew’s disclosure in 2022.
{¶16} The nephews’ parents also noticed changes in the younger nephew’s
behavior. The child became very withdrawn and began gaining a considerable amount of
weight. In addition, the child began having nightmares in 2019, and he was not sleeping
well.
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{¶17} Several months after Clark had moved from his sister’s home in 2022,
Clark’s older nephew disclosed to his parents that Clark had inappropriately touched him.
The older nephew and his father reported the abuse to police. Thereafter, the child’s
therapist recommended a family session to discuss this issue. The mother then asked the
younger nephew if Clark had ever touched him, at which point Clark’s younger nephew
disclosed sexual abuse to his mother. The next day, Clark’s sister took Clark’s younger
nephew to the police department to make a report.
{¶18} At trial, the older nephew testified that Clark first began sexually “harassing”
him when he was eight or nine years old at the Liberty residence of Clark’s brother, where
Clark was residing at the time. The nephew estimated that Clark had “harass[ed]” him on
about thirty occasions at Clark’s brother’s home and later at the nephew’s residence in
Niles. The nephew testified to four specific instances of sexual abuse.
{¶19} On one occasion, when he was eight or nine years old, the nephew recalled
that he was at the home of Clark’s brother while Clark was residing with him. Clark asked
the nephew to come into his room and get into his bed. Clark then asked his nephew to
pull down his pants. The nephew removed his shorts and underwear, and Clark instructed
him to bend over on his bed. Clark pulled down his pants and underwear behind the child
and inserted his penis into the child’s buttocks. The child recalled that this was painful.
Clark told the child that if he were to tell anyone about the incident, something “bad” would
happen.
{¶20} On another occasion at Clark’s brother’s home, when the nephew was eight
or nine, he recalled that he was sleeping in the living room on the floor. The nephew
awoke and went to the bathroom. When the nephew returned to the living room, Clark
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asked him to go into his bedroom to play a video game with him. The child complied. After
playing the game for some time, Clark told him to take off his clothes. Clark then
undressed as he told the nephew to get on the bed. The nephew did so, and Clark
inserted his penis into the nephew’s buttocks.
{¶21} The older nephew further testified as to sexual abuse occurring at his Niles
home. The nephew recalled that he was in the basement game room during the period of
time that Clark last lived with his family, when the nephew was thirteen years old. The
child then retrieved a snack from the basement pantry, and began to ascend the stairs,
when Clark grabbed the child’s arm and pulled him down the stairs to Clark’s bedroom.
Clark then told the child to remove his clothes and place his hands on Clark’s bed. Clark
removed his clothing and inserted his penis in the nephew’s buttocks.
{¶22} On another occasion, shortly before Clark moved from the home in 2022,
Clark asked the nephew to go to his room and get onto his bed. Clark instructed the
nephew to place his hands on the bed, and Clark inserted his penis into the nephew’s
buttocks. The nephew recalled that Clark ejaculated and cleaned up the ejaculate with a
rag.
{¶23} The younger nephew testified that, beginning when he was approximately
eight years old, Clark raped him at his former residence in Girard, Ohio. The younger
nephew recalled that he was in second grade at the time. The nephew explained that he
entered the bathroom, where Clark was then located, and Clark was nude. Clark told the
nephew to pull down his pants and to kneel over the toilet. Clark then inserted his penis
in the nephew’s buttocks. The nephew recalled that it hurt, but he did not tell anyone
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because Clark had told him that, if he told anyone, they would have to go to court, and
this scared the child.
{¶24} The younger nephew further recalled that, the last time that Clark lived with
the nephew’s family at their Niles residence, the nephew was playing a video game on a
console in the basement during the fall. Clark was in his room in the basement and told
the nephew to come into his room, and he took off his and the nephew’s clothes. Clark
instructed the nephew to put his penis in Clark’s buttocks, and he kneeled on the floor
with his hands on the bed. The nephew complied. Clark then told the nephew to kneel by
Clark’s bed, and he then inserted his penis in the nephew’s buttocks. Thereafter, Clark
ejaculated into a towel.
{¶25} The younger nephew further testified that, on a different day that fall, the
nephew was in the bathroom, sitting on the toilet with his pants down. Clark entered the
bathroom and began rubbing the nephew’s penis. Clark again told the nephew not to tell
anyone, otherwise they would go to court, and Clark would go to jail. The nephew
remembered first telling Clark not to touch him when he was about ten years old, and
Clark did stop at that time, but there were two other times he told Clark to stop, and he
did not.
{¶26} The testimony adduced at trial further indicates that, following their reports
to law enforcement, the nephews were taken for medical diagnostic interviews and
physical examinations at the Akron Children’s Hospital Child Advocacy Center. The
nephews both disclosed anal penetration by Clark during the interviews. Rape kits were
not conducted on the nephews because five to six months had passed since the last
reported instance of sexual conduct, and, because both boys had begun puberty, a rape
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kit would not be effective past 96 hours of sexual conduct. There was no evidence of
injury to either child, and the results of tests for sexually transmitted infections were
negative. The nurse practitioner, qualified as an expert in child sexual abuse, testified that
these findings were not unexpected, as only a small percentage of boys who have
experienced sexual abuse through anal penetration display any injuries, particularly when
the abuse occurred months prior to the examination. The nurse further indicated that
delayed disclosure of sexual abuse is quite common, particularly with males and those
who have been abused by family members. The nurse acknowledged that a normal
physical examination neither evidences, nor rules out, sexual abuse. The nurse indicated
that children who have experienced sexual abuse may experience psychosocial or
behavioral consequences such as depression, anger, eating disorders, difficulty sleeping,
and acting out.
{¶27} After presenting the above evidence, the State rested, and Clark moved for
acquittal pursuant to Crim.R. 29. The court denied the motion, and Clark then presented
the testimony of his brother, his brother’s fiancée, and the former girlfriend of another of
Clark’s brothers, who had died the year prior to trial.
{¶28} Clark’s brother testified that he lived in Liberty for about 18 months during
2016 and 2017, with his girlfriend and Clark. Clark’s brother would see the nephews at
his sister’s mobile home in Girard four to five times per week. Clark would stay at the
Liberty residence when Clark’s brother visited the Girard residence. The brother recalled
that the older nephew spent the night at his Liberty residence on one occasion, and the
younger nephew sometimes would spend the night. However, when the younger nephew
stayed the night, he would sleep in the bedroom of Clark’s brother and his fiancée. The
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nephews never indicated to Clark’s brother that anything inappropriate was happening in
his home in Liberty. In 2018, Clark’s brother, his fiancée, and Clark moved into Clark’s
sister’s residence. Clark’s brother and fiancée lived in the sister’s studio apartment over
the garage, where they resided for nearly a year. Clark’s brother would see the nephews
every day during that period, and he never witnessed any indication that the nephews
were being sexually abused. After living with Clark’s sister, Clark’s brother and his fiancée
moved to a home in Girard, where they have lived since. Clark’s sister and nephews
would visit Clark’s brother at his Girard home, and they did not indicate to Clark’s brother
that any sexual abuse occurred in that home.
{¶29} Clark’s brother’s fiancée testified that she had known Clark for nine years.
Clark lived with his brother and his fiancée in Liberty and in Girard. Clark’s brother and
his fiancée were close friends with Clark’s sister and her husband. They visited each
other’s homes multiple times a week. There was only one occasion that the older nephew
stayed the night at the Liberty home. The younger nephew would spend the night more
often, but he was very young at the time and would sleep in the room with Clark’s brother
and fiancée. The fiancée further confirmed that she, Clark’s brother, and Clark moved
into Clark’s sister’s home when the Liberty residence required remodeling. She never
witnessed any inappropriate behavior at any of the residences.
{¶30} The girlfriend of another of Clark’s brothers, who passed away a year prior
to trial, testified that she dated Clark’s brother for about 10 years prior to his death. Clark’s
family was very close, and she saw Clark’s nephews once or twice per month. She never
witnessed any inappropriate behavior between Clark and his nephews.
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{¶31} Following the testimony of these witnesses, the defense rested and
renewed its Crim.R. 29 motion for acquittal, which the trial court overruled.
{¶32} Thereafter, the jury found Clark guilty on all counts and determined that
Clark committed the offenses in accordance with the factual findings alleged in the
indictment.
{¶33} On appeal, Clark contends that the State produced insufficient evidence
that Clark engaged in “sexual conduct” or had “sexual contact” with his nephews.
However, as set forth above, both nephews testified that Clark anally penetrated them
with his penis on several occasions, and the younger nephew testified that Clark
instructed him to penetrate Clark’s anus with his penis on one occasion. This evidence is
sufficient to establish the element of sexual conduct in support of the rape charges.
Further, Clark’s younger nephew testified that Clark rubbed the nephew’s penis while he
was seated on the toilet. This testimony was sufficient to establish sexual contact for
purposes of the gross sexual imposition charge.
{¶34} In further arguing that his convictions should be reversed for failure to
establish sexual conduct or sexual contact, Clark maintains that the State produced no
evidence corroborating the nephews’ testimony, and the evidence adduced at trial
indicated that Clark had relationships with women during the period at issue. In addition,
Clark points to the evidence that the older nephew did not disclose the abuse sooner to
healthcare providers, despite his frequent visits. Further, Clark relies on the evidence that
the nephews did not make any disclosure closer in time to the abuse to family members
and those close to the family, despite their frequent contact and close relationships.
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Moreover, close members of the family, including those who resided with the nephews’
immediate family, did not suspect or witness any sexual abuse of the nephews.
{¶35} However, none of the evidence on which Clark relies, as set forth above,
contradicts the nephews’ testimony, and, to the extent that it may bear on the nephews’
credibility, the jury, as the trier of fact, was “entitled to believe all, part, or none of [the
nephews’] testimony.” State v. Shannon, 2021-Ohio-789, ¶ 43 (11th Dist.), citing State v.
Williams,
2013-Ohio-2040, ¶ 21 (11th Dist.). We generally defer to the trier of fact on
issues of credibility, as “‘[t]he trier of fact is in the best position to evaluate inconsistencies
in testimony by observing the witness’s manner and demeanor on the witness stand—
attributes impossible to glean through a printed record.’”
Shannon at ¶ 43, quoting
Williams at ¶ 21.
{¶36} Further, corroborating evidence and/or physical evidence of sexual conduct
is not required to support a conviction. Instead, the jury may rely on the victims’ testimony
alone. See State v. Henderson, 2002-Ohio-6715, ¶ 36 (11th Dist.) (“When prosecuting an
offender for rape, the state is not required to provide physical evidence of penetration.
Rather, all the state must do is establish, beyond a reasonable doubt, that sexual conduct
occurred. This may be accomplished through either physical evidence and/or witness
testimony.”). This is not a case where the evidence weighs heavily against the conviction
on the elements of sexual conduct or sexual contact.
{¶37} Next, Clark maintains that there existed insufficient evidence of “force” to
support the factual findings contained in counts three, seven, and eight. Count three
pertained to the younger nephew’s allegation that, when the boy’s family lived in the
Girard trailer, Clark entered the bathroom with the boy, instructed him to put his hands on
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the toilet and kneel over it, and engaged in anal intercourse with the boy. Count seven,
pertained to the older nephew’s allegation that, while Clark was residing with his brother
in Liberty, Ohio, Clark instructed the older nephew to go to Clark’s bedroom, where Clark
engaged in anal intercourse with the boy. Count eight pertained to the older nephew’s
allegation that he was spending the night at Clark’s brother’s Liberty home, and he awoke
from sleeping on the living room floor to use the bathroom, and when he returned to the
living room, Clark instructed him to come into his bedroom, where he again engaged in
anal intercourse with the boy.
{¶38} On appeal, Clark maintains that neither child testified as to any violence,
compulsion, or physical restraint, and there existed no physical evidence of force.
{¶39} However, as set forth above, an authority figure’s use of “force” with respect
to children may be subtle and psychological. Here, the conduct alleged in the three counts
at issue occurred when the children were seven to nine years old and at the instruction
of Clark, the boys’ adult uncle. The nephews’ testimony was sufficient to establish force
for purposes of these three counts, and we cannot say that the jury lost its way in
determining that Clark purposely compelled the nephews to submit by force or threat of
force.
{¶40} Further, with respect to count three, Clark maintains that the testimony of
his brother and his brother’s fiancée established that Clark did not visit the nephews’
family when they resided at the Girard trailer. In addition, with respect to counts seven
and eight, Clark maintains that the testimony of his brother and his brother’s fiancée
established that the older nephew only once spent the night at their home in Liberty,
where the nephew alleged that the offenses occurred on two separate occasions.
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However, we generally defer to the factfinder on issues of credibility, and the jury’s
resolution of the conflicting testimony in favor of the State in this case does not render its
decision against the weight of the evidence. See Shannon, 2021-Ohio-789, at ¶ 43 (11th
Dist.).
{¶41} Accordingly, Clark’s first and second assignments of error lack merit.
{¶42} In his third assigned error, Clark maintains:
{¶43} “The trial court erred by sentencing Defendant-Appellant to life terms as to
the charged rape offenses in Counts III, VII, and VIII.”
{¶44} Our standard of review of felony sentences is set forth in R.C.
2953.08(G)(2), which provides:
The court hearing an appeal under division (A), (B), or (C) of
this section shall review the record, including the findings
underlying the sentence or modification given by the
sentencing court.
The appellate court may increase, reduce, or otherwise
modify a sentence that is appealed under this section or may
vacate the sentence and remand the matter to the sentencing
court for resentencing. The appellate court’s standard for
review is not whether the sentencing court abused its
discretion. The appellate court may take any action authorized
by this division if it clearly and convincingly finds either of the
following:
(a) That the record does not support the sentencing court’s
findings under division (B) or (D) of section 2929.13, division
(B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section
2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶45} Clark maintains that the trial court erred in imposing sentences of life without
parole on counts three, seven, and eight. In support of his third assigned error, Clark
points to his lack of a prior criminal history, which was acknowledged by the trial court at
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sentencing, and he contends that the facts and circumstances of this case do not warrant
sentences of life without parole on these three counts.
{¶46} When sentencing a felony offender, a trial court is guided by the principles
and purposes of felony sentencing under R.C. 2929.11 and R.C. 2929.12. “Nothing in
R.C. 2953.08(G)(2) permits an appellate court to independently weigh the evidence in the
record and substitute its judgment for that of the trial court concerning the sentence that
best reflects compliance with R.C. 2929.11 and 2929.12.” State v. Jones, 2020-Ohio-
6729, ¶ 42. Thus, this court lacks authority to independently weigh the evidence in the
record and substitute our judgment for the trial court as to the sentence that best achieves
the purposes and principles of sentencing. Id.
{¶47} To the extent that Clark’s argument may be read as challenging his
sentences as otherwise contrary to law, the Ohio Supreme Court has held that “a
sentence is contrary to law when it is ‘in violation of statute or legal regulations.’” State v.
Meeks, 2023-Ohio-988, ¶ 11 (11th Dist.), quoting Jones at ¶ 34.
{¶48} Here, the sentences at issue were imposed on three counts on which the
jury found Clark guilty of R.C. 2907.02(A)(1)(b) and found that he did commit the offenses
through force or the threat of force. Pursuant to R.C. 2907.02(B), “notwithstanding
sections 2929.11 to 2929.14 of the Revised Code, an offender under [R.C.
2907.02(A)(1)(b)] shall be sentenced to a prison term or term of life imprisonment
pursuant to section 2971.03 of the Revised Code.”
{¶49} Thus, pursuant to statute, based upon the findings on the three counts at
issue, the trial court was authorized to impose one of two sentences for each of the
counts. First, pursuant to R.C. 2971.03(B), based on the findings of force, the trial court
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was authorized to impose a minimum term of twenty-five years and a maximum of life
imprisonment on each of these counts. R.C. 2971.03(B)(1)(c). Alternatively, because the
jury also found that the nephews were under age ten at the time of the offenses alleged
in these counts, the trial court was authorized to impose prison terms of life without parole,
which the trial court did impose on these counts. R.C. 2907.02 (“if the victim under division
(A)(1)(b) of this section is less than ten years of age, in lieu of sentencing the offender to
a prison term or term of life imprisonment pursuant to section 2971.03 of the Revised
Code, except as otherwise provided in this division, the court may impose upon the
offender a term of life without parole”). Therefore, Clark’s sentences on these counts are
not contrary to law.
{¶50} Accordingly, Clark’s third assigned error lacks merit.
{¶51} The judgment is affirmed.
MARY JANE TRAPP, J.,
ROBERT J. PATTON, J.,
concur.
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Case No. 2024-T-0030
