text:
    Ankica PULJIC, et al., Plaintiffs-Appellants, v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant-Appellee.
    NO. 2017-L-067
    Court of Appeals of Ohio, Eleventh District, Lake County.
    Decided December 4, 2017
    Richard K. Wilcox, 14655 Balch Road, Madison, OH 44057 (For Plaintiffs-Appellants).
    Mark H. Gams, Gallagher Gams Pryor Tallan & Littrell, 471 East Broad Street, 19th Floor, Columbus, OH 43215 (For Defendant-Appellee).
   CYNTHIA WESTCOTT RICE, P.J.

{¶1} Appellants, Ankica Puljic, et al., appeal from the judgment of the Lake County Court of Common Pleas, entering summary judgment in favor of appellee, State Farm Fire and Casualty Company. We affirm.

{¶2} On July 19, 2013, a significant rain storm passed through Lake County, Ohio, releasing between four and seven inches of rain throughout the region. The storm caused flooding throughout the county. The following morning, appellant, Ankica Puljic, awoke and inspected her basement for flooding. She inspected the basement drains and nothing appeared unusual. Moreover, she viewed the area where the sewer line was located and noticed nothing out of the ordinary. As she scanned the next room, she noticed her ironing board was on the floor and the carpet was raised. The carpet was neither torn nor wet. After removing the carpet Mrs. Puljic and her husband, appellant, Tom Puljic, discovered the concrete floor had a significant crack and had risen.

{¶3} Appellants called appellee who, on August 19, 2013, initiated an inspection. As a result of the inspection, the claim was denied pursuant to coverage exclusions in appellants' policy. The policy specifically excluded damage resulting from water below the surface of the ground. The policy also excluded loss to property as a result of the cracking, bulging, or expansion of floors. Appellants sought another inspection and appellee denied the claim again. After a third denial in April 2014, appellee retained David S. Mallory, a professional engineer, to inspect appellants' property.

{¶4} Appellee based its previous denials on its conclusion that subsurface water had pushed the subgrade (i.e., the soil with small amounts of stone underneath the concrete) upward, causing the concrete to heave and crack. Mr. Mallory opined the concrete slab floor cracked and separated due to hydrostatic pressure in the subgrade under the floor. The subgrade under the floor was saturated, suggesting water infiltration. There were no leaks from the municipal water service line and no water leaks in the plumbing lines were observed. The soil surrounding the residence was in a continual state of saturation for a continued 16-day period. During this period, water migrated along the basement walls to the level of the basement floor, saturated the floors subgrade, and imparted an upward force under the concrete. The force exceeded the floor's strength thereby cracking and separating the same. Omissions of rebar in the concrete and the absence of a sump pump were contributing factors to the damage.

{¶5} Appellants subsequently hired Joseph Nyzen, a professional engineer, to inspect the premises. Mr. Nyzen agreed with Mr. Mallory that the damage to the floor was a result of water pressure under the floor. Specifically, he noted "under-slab water pressure certainly caused the eruption." Mr. Nyzen took issue, however, with Mr. Mallory's conclusions as to how the pressure developed, primarily due to the inaccurate weather data used by Mr. Mallory. Further, Mr. Nyzen observed that drainage pipe misalignment may have contributed to the buildup of pressure which ultimately led to the slab's eruption.

{¶6} Appellants filed the underlying complaint seeking damages for, inter alia, breach of contract wrongful cancellation of the contract. They also sought declaratory judgment on the breach issue. Appellee denied the allegations, maintaining the claims were barred by the terms and conditions of the insurance contract. After discovery, appellee filed a motion for summary judgment. In support of its motion, appellee relied upon the language of the policy which provides an exclusion for losses occurring as a result of "settling, cracking, shrinking, bulging, or expansion of pavements, patios, foundation, walls floors, roofs or ceilings." Appellee further relied upon an exclusion of coverage for water damage, defined as "water below the surface of the ground, including water which exerts pressure on, or seeps or leaks through a building, sidewalk, driveway, foundation, swimming pool or other structure." Appellee also relied upon an exclusion for loss caused by "defect, weakness, inadequacy, fault or unsoundness in: (1) planning, zoning, development, surveying, siting; [and] (2) specifications, workmanship, construction, grading, compaction."

{¶7} Appellee argued the policy excludes damage for hydrostatic or subsurface water pressure that causes the basement floor to lift, crack, and bulge. Appellee noted, after Mr. Mallory's inspection, its claim representative concluded that subsurface water caused the basement slab to crack. Because the loss was excluded by the contract, appellee asserted it was entitled to judgment as a matter of law on the breach claim. Appellee further argued it was entitled to judgment as a matter of law on the wrongful cancellation claim because it permissibly elected not to renew the coverage, as opposed to cancelling the contract.

{¶8} In response, appellants argued appellee improperly broadened the scope of the first exclusion, barring coverage for damage due to settling, cracking, shrinking, bulging, or expansion of pavement and floors. They noted that two experts examined the same basement and used different language to describe their findings. To wit, appellants noted Mr. Mallory described the damage as cracked and separated concete, while Mr. Nyzen, who is less familiar with appellee's preferred terms, described the damage as "heaved and broken," "erupted," and "uplifted." Appellants maintained the floor heaved and displaced vertically, which compromised the structural integrity of the foundation. In appellants' view, nothing in the language of the exclusion describes the phenomenon that occurred in their home. Appellants additionally maintained appellee's cancellation or non-renewal of the policy was contrary to law because, in their view, it occurred as retaliation for appellants' challenge of appellee's denial of their claim.

{¶9} After considering each party's positions, the trial court concluded there were no genuine issues of material fact to be litigated on appellants' breach of contract claim. The court determined the contract excluded the damage at issue and therefore appellee was entitled to judgment as a matter of law. Similarly, the trial court determined appellee was entitled not to renew the policy at the end of the policy's term. Hence, the court awarded appellee summary judgment on appellants' claim for wrongful cancellation. Appellant's appeal the judgment, assigning the following error:

{¶10} "The trial court erred in granting defendant-appellee's motion for summary judgment on appellants first, fourth and fifth claims of their amended verified complaint and finding appellants failed to point to evidence in the record that there is a genuine issue of material fact."

{¶11} Summary judgment is a procedural tool that terminates litigation and thus should be entered with caution. Davis v. Loopco Industries, Inc., 66 Ohio St.3d 64, 66, 609 N.E.2d 144 (1993). Summary judgment is proper where (1) there is no genuine issue of material fact remaining to be litigated; (2) the movant is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and, viewing the evidence in the non-moving party's favor, that conclusion favors the movant. See, e.g., Civ.R. 56(C).

{¶12} When evaluating a motion for summary judgment, the trial court may not weigh the evidence or select among reasonable inferences. Dupler v. Mansfield Journal Co., 64 Ohio St.2d 116, 121, 413 N.E.2d 1187 (1980). Instead, all questions must be resolved in the nonmoving party's favor. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 359, 604 N.E.2d 138 (1992). Hence, a trial court must overrule a motion for summary judgment where conflicting evidence exists and alternative reasonable inferences can be drawn. Pierson v. Norfork Southern Corp., 11th Dist. Ashtabula No. 2002-A-0061, 2003-Ohio-6682, 2003 WL 22931361, ¶36. In short, the central issue on summary judgment is, "whether the evidence presents sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An appellate court reviews a trial court's entry of summary judgment de novo. Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).

{¶13} Appellants first argue the trial court erred in concluding that the opinions of each expert did not differ substantially regarding how and why the basement floor slab erupted following the storms on July 19 and 20, 2013.

{¶14} The exclusions upon which the trial court relied provide:

{¶15} SECTION 1-LOSSES NOT INSURED
{¶16} 1. We do not insure for any loss to the property described in Coverage A which consists of, or is indirectly and immediately caused by, one or more of the perils listed in items a. through n. below, regardless of whether the loss occurs suddenly or gradually, involves isolated or widespread damage, arises from the actual or external forces, or occurs as a result of any combination of these:
{¶17} * * *
{¶18} I. settling, cracking, shrinking, bulging, or expansion of pavements, patios, foundation, walls, floors, roofs or ceilings;
{¶19} * * *
{¶20} 2. We do not insure under any coverage for any loss which would not have occurred in the absence of one or more of the following excluded events. We do not insure for such loss regardless of: (a) the cause of the excluded event; or (b) other causes of the loss; or (c) whether other causes acted concurrently or in any sequence with the excluded event to produce the loss; or (d) whether the event occurs suddenly or gradually involves isolated or widespread damage, arises from natural or external forces, or occurs as a result of any combination of these:
{¶21} * * *
{¶22} c. Water Damage, meaning
{¶23} * * *
{¶24} (3) water below the surface of the ground, including water which exerts pressure on, or seeps or leaks through a building, sidewalk, driveway, foundation, swimming pool or other structure.

{¶25} Appellants first argue there are sufficient conflicts between Mr. Mallory's and Mr. Nyzen's expert opinions on the cause of the damage to create a genuine issue of material fact for trial. Appellants note that Mr. Nyzen conducted a much more thorough study of available weather data, which aided in his conclusion that the damage occurred suddenly. Alternatively, appellants assert Mr. Mallory did not consider the severity and intensity of the rain volume. And, in appellants' view, this contributed to his theory that the damage was a result of a gradual process. We find these distinctions inconsequential.

{¶26} Appellants are correct that Mr. Mallory did not consider the regional precipitation totals in formulating his opinion that hydrostatic pressure caused the failure. Still, whether the damage occurred suddenly or was a result of a gradual process is irrelevant. Both experts concluded that water pressure under the floor was the root cause of the damage. Pursuant to the contract, this is "water damage," i.e., water below the surface of the ground that exerted pressure on the floor and caused a loss. Because each expert's ultimate conclusion regarding the cause of the loss fell within the definition of "water damage," the loss was excluded from coverage.

{¶27} Appellants next maintain that the evidence demonstrates the coverage exclusions do not apply because (1) the photos of the damage reveal a "catastrophic failure of the floor slab" and "vertical displacement," not merely cracking and separation; and (2) the terms "hydrostatic" or "subsurface" water pressure do not appear in the exclusions.

{¶28} With respect to these points, photos of the floor demonstrate the damage was indeed significant. The damage, nevertheless, involved a large crack that, according to both experts was caused by water pressure which built up beneath the floor. Regardless of the adjectives used to describe the damage, appellants concede, the policy excludes damage caused by "water below the surface of the ground." Whether the ground refers to the soil line (above the dug basement) or it refers to the floor line, it is undisputed that the loss at issue was a result of water pressure below the surface of the ground. Simply because the damage was significant and the policy does not use the phraseology "hydrostatic" or "subsurface" does not imply the loss was somehow covered. The technical terms employed by appellee are synonymous with the type of damage that is expressly excluded. Appellants' appeal to the quality of the loss and the language used by the experts is unavailing.

{¶29} Appellants next argue the trial court erred when it concluded appellee properly, pursuant to the insurance contract, exercised its right not to renew the policy. Appellants maintain appellee canceled the policy in retaliation for their efforts to compel appellee to accept their claim. We do not agree.

{¶30} First of all, appellants submitted no objective evidence that appellee's decision not to renew the policy was retaliatory. Indeed, as will be discussed below, appellee provided a reasonable basis for its decision, even though it was not required to do so under the contract. In this respect, we conclude there is no genuine issue of material fact to be litigated on the issue of appellee's alleged retaliation.

{¶31} That said, the policy included a nonrenewal clause, which provided:

{¶32} Nonrenewal. We may elect not to renew this policy. If we elect not to renew, a written notice will be delivered to you, or mailed to you at your mailing address shown in the Declarations. The notice will be mailed or delivered at least 30 days before the expiration date of this policy. Proof of mailing shall be sufficient proof of notice.

{¶33} The homeowner's policy anniversary date was June 18, 2014. On May 6, 2014, appellee sent appellants a letter of its intention not to renew the policy. Although it was not required under the policy to provide a reason, appellee nevertheless explained the home's "cracked exterior masonry on the basement foundation increases the potential for water seepage or interior damage to walls and floors." Appellants acknowledged they received the letter. Appellee's actions were consistent with the policy's nonrenewal provision and we discern no genuine issue of material fact on whether appellee was entitled to discontinue coverage pursuant to the policy.

{¶34} Appellants attempt to analogize the instant scenario with commercial insurance policies, which cannot be cancelled save compliance with R.C. 3937.25, e.g., "[t]he occurrence of a change in the individual risk which substantially increases any hazard." R.C. 3937.25(B). Appellants assert appellee's purported reason for not renewing the policy includes a dispute as to whether the cracked exterior masonry increased the risk of damage. Appellants acknowledge R.C. 3937.25 only applies to commercial insurance. For this reason alone, their argument lacks merit. Furthermore, the May 6, 2014 letter expressly stated appellee would not renew the policy, pursuant to the nonrenewal condition. In Blackwell v. Farmers Ins. Exch. , 4th Dist. Pickaway No. 05CA3, 2005-Ohio-3499, 2005 WL 1595246, the court observed:

{¶35} Black's Law Dictionary (6Ed.1990) defines "cancel" as follows: "To obliterate; to strike or cross out. To destroy the effect of an instrument by defacing, obliterating, expunging, or erasing it. To revoke or recall; to annul or destroy, make void or invalid, or set aside. To rescind; abandon; repeal; surrender; waive; terminate. The term is sometimes equivalent to 'discharge' or 'pay.' " Id. at 206, 519 N.E.2d 1380. It defines "cancellation" as follows: "To destroy the force, effectiveness, or validity of. To annul, abrogate, or terminate. * * * As used in insurance law, term refers to the termination of an insurance policy by an act of either or both of the parties to it, prior to the ending of the policy period." Id.

{¶36} In light of the foregoing definitions, we conclude appellee's decision was not a cancellation. The May 6, 204 letter states appellee would not renew the policy, which would expire on June 18, 2014. Appellee advised appellant to seek different homeowner's coverage to prevent a lapse in coverage. Nevertheless, appellee was not terminating the coverage as of May 6; instead, the letter indicated appellee remained appellants' carrier for approximately six additional weeks. In short, appellee exercised its contractual right not to renew and its action cannot be viewed as a wrongful termination of the coverage. The trial court did not err in concluding appellants failed to meet their reciprocal burden to create a genuine issue of material fact.

{¶37} The trial court did not err in concluding there are no genuine issues of material fact to be litigated in this matter. Therefore, appellee was entitled to judgment as a matter of law on appellants' claims for declaratory judgment, breach of contract, and wrongful cancellation.

{¶38} Appellants' assignment of error is without merit.

{¶39} For the reasons discussed above, the judgment of the Lake County Court of Common Pleas is affirmed.

DIANE V. GRENDELL, J.,

THOMAS R. WRIGHT, J.,

concur.


source: Caselaw Access Project

author: TIMOTHY P. CANNON, J.

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee, v. Aundre L. ARMSTRONG, Defendant-Appellant.
    NO. 2015-T-0131
    Court of Appeals of Ohio, Eleventh District, Trumbull County.
    Decided December 4, 2017
    Dennis Watkins, Trumbull County Prosecutor, and Ashleigh Musick, Assistant Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH 44481 (For Plaintiff-Appellee).
    Gilbert W.R. Rucker, III, 1569 Woodland St., N.E., Suite 10, Warren, OH 44483 (For Defendant-Appellant).
   TIMOTHY P. CANNON, J.

{¶ 1} Appellant, Aundre L. Armstrong, appeals from the November 17, 2015 judgment of the Trumbull County Court of Common Pleas, denying his pro se motion to vacate and set aside his sentence. For the following reasons, the judgment of the trial court is affirmed.

{¶ 2} On June 6, 2008, appellant was arraigned in the Warren Municipal Court and pled not guilty to burglary, a second-degree felony in violation of R.C. 2911.12(A) and (C). Appellant waived a preliminary hearing and was bound over to the Trumbull County Court of Common Pleas on July 1, 2008.

{¶ 3} On July 31, 2008, the Trumbull County Grand Jury indicted appellant on three counts of burglary, second-degree felonies in violation of R.C. 2911.12(A) and (C). All three counts involved the burglary of the same residence on three separate occasions.

{¶ 4} One year later, on July 31, 2009, appellant entered into a plea agreement with appellee, the state of Ohio. The state initially agreed not to prosecute Count 3 of the indictment if appellant agreed to withdraw his not guilty pleas, enter an oral and written plea of guilty to Counts 1 and 2, and submit to a presentence investigation.

{¶ 5} A document titled, "Finding on Guilty Plea to the Amended Indictment," which embodies the plea agreement, was filed on July 31, 2009. While there is not an "amended" indictment in the record, the document references three counts of burglary, which is consistent with the original indictment. The document is typewritten, but has been altered and initialed in several places. One alteration essentially deletes reference to a plea to Count 2. That deletion is initialed, apparently by the assistant prosecutor and defense counsel. There is also an initialed addition that indicates: "State to Nolle Count 3 & 2 " (bold portion is handwritten). This document was signed by appellant.

{¶ 6} Appellant's original plea and sentence was taken and imposed by a now-retired judge. The October 15, 2009 sentencing entry states that a sentencing hearing was held on October 1, 2009, and that appellant was convicted of Counts 1 and 2. However, appellant was only sentenced to one five-year term of community control. Furthermore, the court stated in the sentencing entry that if appellant violated the terms and conditions of community control, the court could impose a more restrictive sentence of "a prison term of 8 years." Neither the transcript of the plea hearing nor the transcript from the sentencing hearing is part of our record on appeal, and nothing in the record indicates Count 2 was disposed of by plea, nolle, or dismissal prior to the entry of sentence. Appellant did not appeal this judgment.

{¶ 7} Appellant was subsequently charged with violating the terms of his community control. At a hearing held December 22, 2011, appellant pled guilty to the violation. The trial court made a finding of guilty and advised appellant that "any further violations could result in a prison sentence of 8 years." The trial court ordered appellant to continue community control with the additional sanction of fulfilling the Northeast Ohio Community Alternative Program.

{¶ 8} Appellant was again charged with violating the terms of his community control and a hearing was held on November 13, 2014. Appellant was represented by counsel and entered a plea of guilty to the alleged violations. The trial court revoked appellant's community control and sentenced him to a prison term of eight years on Count 1 and eight years on Count 2, to be served concurrently, for a total prison term of eight years. Appellant was also advised that after his release from prison he would be subject to a mandatory three years of post-release control, and he was advised of the consequences of violating post-release control. The sentencing entry was filed November 25, 2014. Appellant did not appeal this judgment.

{¶ 9} Approximately one year later, on November 16, 2015, appellant filed a pro se motion to vacate and set aside his sentence. Appellant argued his sentence was void. On November 17, 2015, the trial court denied appellant's motion without hearing. Appellant filed a timely pro se notice of appeal from the trial court's November 17, 2015 judgment entry.

{¶ 10} As a result of questions raised by the written plea agreement and sentencing entry, this court remanded the matter to the trial court for clarification. Upon remand, the state filed a motion for leave to enter a Nolle Prosequi of Count 2, consistent with the initialed July 31, 2009 plea agreement. The trial court granted the motion and, in accord with our remand, issued a nunc pro tunc entry correcting the error in the November 25, 2014 sentencing entry that mistakenly indicated appellant was convicted of two counts of burglary; the trial court also re-imposed the eight-year sentence on Count 1.

{¶ 11} After the trial court issued the nunc pro tunc entry, appellant retained counsel, who was permitted to file a supplemental appellate brief. Appellant attached an affidavit to his supplemental appellate brief, attesting he had not been aware of what his plea agreement meant. However, because the affidavit was not part of the trial court record, we cannot consider it on appeal. See State v. Kiefer , 11th Dist. Portage No. 97-P-0001, 1997 WL 590150, *2 (Aug. 22, 1997) (citation omitted) ("An appellate court cannot consider an affidavit attached to an appellate brief which was not part of the record submitted to the court of appeals.").

{¶ 12} Appellant has presented three assignments of error: one in his pro se brief and two in his supplemental brief. We address appellant's assignments of error out of numerical order.

{¶ 13} Appellant's second assignment of error states:

The trial court committed prejudicial error in sentencing Mr. Armstrong purportedly in accordance with the Crim.R. 11 Plea Agreement where said agreement was ambiguous and was not construed in favor of Mr. Armstrong where Plea Agreement clearly indicates that the State would Nolle Counts 3 and 2 of the three count indictment and Court erroneously sentenced Mr. Armstrong on two counts.

{¶ 14} Appellant asserts his written plea agreement is ambiguous and, therefore, this court should construe the writing against the state and hold that appellant pled guilty to Count 1 and that the state nolled Counts 2 and 3. Count 3 was nolled at the time of appellant's original sentence. Following our remand order, the trial court granted the state's motion to nolle Count 2 and issued a nunc pro tunc entry that reflects appellant pled guilty to Count 1 only. This particular argument is therefore moot.

{¶ 15} Appellant further asserts his plea was not made knowingly, intelligently, and voluntarily, pursuant to Crim.R. 11(C), because the trial court did not review the agreement with appellant. In response, appellee contends the arguments pertaining to appellant's guilty plea are not properly before this court because appellant never raised any issue with his plea in the trial court.

{¶ 16} "To prevail on an appeal, an appellant must affirmatively demonstrate, through reference to the record of the proceeding before the trial court, that the trial court committed error."

Buckley v. Ollila , 11th Dist. Trumbull No. 98-T-0177, 2000 WL 263739, *1 (Mar. 3, 2000) (citation omitted); see also App.R. 9(B).

{¶ 17} Appellant has not provided a transcript of the plea hearing by which we could review the trial court's compliance with Crim.R. 11(C). Absent a transcript, we must presume the regularity of the proceedings. State v. Hundzsa , 11th Dist. Portage No. 2008-P-0012, 2008-Ohio-4985, 2008 WL 4384180, ¶ 18 (citation omitted). It is also worthy of note that appellant was before the trial court on at least three occasions subsequent to his plea hearing. Even though he had a sentencing hearing and two additional plea hearings for his violations of community control, the record does not reflect, and appellant does not contend, that he ever raised any issue with regard to his original plea in the trial court.

{¶ 18} Appellant next argues the trial court's nunc pro tunc entry was improperly issued because the entry does more than correct a clerical error.

{¶ 19} Crim.R. 36 permits the trial court to correct "[c]lerical mistakes in judgments, orders, or other parts of the record, and errors in the record arising from oversight or omission * * * at any time." " 'The purpose of a nunc pro tunc order is to have the judgment of the court reflect its true action.' " Hundzsa , supra, at ¶ 27, quoting McKay v. Mckay , 24 Ohio App.3d 74, 75, 493 N.E.2d 317 (11th Dist.1985). The power of the trial court to enter a judgment nunc pro tunc " 'does not extend beyond the power to make the journal entry speak the truth' " and can only be implemented to correct clerical errors. Id. " 'It is not made to show what the court might or should have decided, or intended to decide, but what it actually did decide.' " Id.

{¶ 20} Without a transcript, this court cannot determine what actually occurred at appellant's plea or sentencing hearing. The nunc pro tunc entry clarifies, however, that appellant was only convicted of Count 1 and that the state nolled Count 2 and Count 3, based on the language of the plea agreement. To the extent appellant argues the nunc pro tunc entry does not reflect what transpired at his sentencing hearing, the burden was on appellant to provide a transcript of the hearing to demonstrate the trial court's error. See App.R. 9(B).

{¶ 21} Appellant's second assignment of error is without merit.

{¶ 22} Appellant's first and third assignments of error state:

[1.] The trial court error in finding Mr. Aundre L. Armstrong, in violation of Community Control Sanctions and sending him to prison, when Journal Entry that sentenced Mr. Armstrong, to said Community Control Sanctions is not a valid judgment because it violates Crim.R. 32(C) and Ohio's felony Sentencing provisions.
[3.] The Trial Court committed error where it sentenced Mr. Armstrong to an eight year term of incarceration on violation of probation where the underlying sentence was a void judgment and therefore no violation could have occurred where judgment as void is deemed as a matter of law to be unenforceable.

{¶ 23} Under these assignments of error, appellant asserts his original sentence was a void judgment. Appellant contends, therefore, that the prison sentence imposed for violating his community control is also void and should be vacated because he could not have violated a void judgment.

{¶ 24} "[A]n appellate court may vacate or modify a felony sentence on appeal only if it determines by clear and convincing evidence that the record does not support the trial court's findings under relevant statutes or that the sentence is otherwise contrary to law." See State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1, citing R.C. 2953.08(G)(2).

{¶ 25} Appellant initially asserts his original sentence was void because it was not entered in accordance with statutorily mandated terms. Appellant appears to maintain that the trial court failed to comply with former R.C. 2929.19(B)(5), now found at R.C. 2929.19(B)(4), by not properly notifying him at sentencing of the specific prison term that could be imposed if he violated community control. The trial court's entry specifically provides, however, that "the Court may impose a prison term of 8 years," and appellant has not provided this court with a transcript of the sentencing hearing. This argument is not well taken.

{¶ 26} Appellant further asserts his original sentence was void because the trial court did not impose separate sentences for Counts 1 and 2, but instead "lumped" them together in a single sentence, which is contrary to law.

{¶ 27} In State v. Saxon , the Supreme Court of Ohio held that the Ohio felony sentencing statutes do not allow for "sentencing packages" or the imposition of one overarching sentence for multiple offenses. 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 8. Judges must consider each offense separately and impose a separate sentence for each offense. Id. "[A] sentence is the sanction or combination of sanctions imposed on each separate offense." Id. at ¶ 13. As community control sanctions are criminal penalties subject to Ohio's felony sentencing statutes, pursuant to R.C. 2929.15, they must also be imposed individually for each offense. State v. Williams , 3d Dist. Hancock No. 5-10-02, 2011-Ohio-995, 2011 WL 775909, ¶ 21 (relying on Saxon ).

{¶ 28} Here, in the original sentencing entry of October 15, 2009, the trial court imposed one community control sanction and indicated one eight-year prison term may be imposed for a violation of the terms and conditions of community control. It did this while noting there had been a plea to two counts of burglary, which was incorrect. The sentence would have been contrary to law if, in fact, appellant had pled guilty to two counts. Appellant, however, had only pled guilty to one count and was only sentenced on one count. The error in the original sentencing entry was, therefore, the reference to the plea, not the sentence imposed.

{¶ 29} The trial court had subject-matter jurisdiction and imposed appellant's original sentence of community control in accordance with the applicable sentencing statutes. See R.C. 2931.03, R.C. 2929.15(A)(1), and R.C. 2929.14(A)(2). Multiple sentences were not imposed on appellant. Therefore, the clerical error with regard to appellant's plea rendered the 2009 judgment voidable, not void. As a result, the trial court had jurisdiction in 2014 to find appellant violated the terms of his community control and impose the previously suspended prison sentence. See State v. Heinz , 146 Ohio St.3d 374, 2016-Ohio-2814, 56 N.E.3d 965, ¶ 11 (citations omitted).

{¶ 30} Appellant's first and third assignments of error are without merit.

{¶ 31} For the foregoing reasons, the judgment of the Trumbull County Court of Common Pleas is affirmed.

THOMAS R. WRIGHT, J., concurs,

COLLEEN MARY O'TOOLE, J., dissents with a Dissenting Opinion.

COLLEEN MARY O'TOOLE, J., dissents with a Dissenting Opinion.

{¶ 32} I respectfully dissent.

{¶ 33} Appellant's appeal stems from the trial court's finding him in violation of his community control sanctions and sending him to prison. I agree with appellant that the trial court erred in denying his pro se motion to vacate and set aside his sentence as the October 15, 2009 judgment which sentenced him to community control sanctions is not a valid judgment because it violates Crim.R. 32(C) and Ohio's felony sentencing provisions.

{¶ 34} " Crim.R. 32(C) provides that '(a) judgment entry of conviction shall set forth the fact of conviction and the sentence.' 'A sentence is a sanction or combination of sanctions imposed for an individual offense.' State v. Holdcroft , 137 Ohio St.3d 526, 2013-Ohio-5014, * * *, paragraph one of the syllabus, citing State v. Saxon , 109 Ohio St. 3d 176, 2006-Ohio-1245, * * *. Thus, a criminal 'conviction' consists of both a finding of guilt and the imposition of a sentence. See State v. Henderson , 58 Ohio St.2d 171, * * * (1979).

{¶ 35} "Ohio's felony sentencing scheme does not allow sentences to be grouped together in a 'sentencing package.' Rather, it requires a judge to impose a separate sentence for each offense, individually. Saxon , [supra, at] ¶ 8-9, citing R.C. 2929.11 through 2929.19. The statutory mandate that sentences must be imposed on offenses individually applies to community control sanctions. State v. Williams , 3d Dist. Hancock No. 5-10-02, 2011-Ohio-995, 2011 WL 775909, ¶ 19-27. Indeed, community control sanctions are criminal penalties subject to the sentencing provisions set forth in R.C. Chapter 2929.

{¶ 36} "Thus, in State v. Jones , 8th Dist. Cuyahoga No. 102314, 2015-Ohio-2409 [2015 WL 3822060], [the Eighth Appellate District] held that 'it is error for a trial court to sentence a defendant to a single term of community control sanctions for multiple convictions.' " (Parallel citations omitted.) State v. Blair , 8th Dist. Cuyahoga No. 102548, 2015-Ohio-5416, 2015 WL 9438306, ¶ 7-9, appeal not accepted for review, State v. Blair , 145 Ohio St.3d 1470, 2016-Ohio-3028, 49 N.E.3d 1313.

{¶ 37} On October 15, 2009, the trial court imposed community control sanctions on both counts of burglary in a blanket sentence. "Because Crim.R. 32(C) requires the court to impose a separate sentence on each count individually, the court's original sentencing entry is contrary to law. A sentence that does not comply with statutorily mandated terms is void. State v. Fischer , 128 Ohio St.3d 92, 2010-Ohio-6238, * * *, citing State v. Beasley , 14 Ohio St.3d 74, * * * (1984)." (Parallel citations omitted.) Blair, supra, at ¶ 11.

{¶ 38} Accordingly, this writer finds the judgment sentencing appellant to community control sanctions is void. This writer further finds the trial court erred in denying appellant's pro se motion to vacate and set aside his sentence.

{¶ 39} I respectfully dissent.


author: HENDRICKSON, P.J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. B.J.T., Defendant-Appellant.
    NO. CA2016-12-106
    Court of Appeals of Ohio, Twelfth District, Warren County.
    December 4, 2017
    David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, 520 Justice Drive, Lebanon, Ohio 45036, for plaintiff-appellee
    Taft Stettinius & Hollister LLP, Aaron Herzig, Liane Rousseau, 425 Walnut Street, Suite 1800, Cincinnati, Ohio 45202, for defendant-appellant
   HENDRICKSON, P.J.

{¶ 1} Defendant-appellant, B.J.T., appeals from his conviction and sentence in the Warren County Court of Common Pleas for sexual battery and gross sexual imposition. For the reasons set forth below, we affirm in part, reverse in part, and remand the matter for resentencing.

{¶ 2} On April 29, 2016, appellant was indicted on eight counts of sexual battery in violation of R.C. 2907.03(A)(5), felonies of the third degree, and on seven counts of gross sexual imposition ("GSI") in violation of R.C. 2907.05(A)(5), felonies of the fourth degree. The charges arose out of allegations that appellant sexually abused H.T. over the course of eight months, from September 1, 2015 until April 21, 2016, when H.T. was 15 years old. Appellant was alleged to have engaged in sexual contact and conduct with H.T. by touching her chest and buttocks and by digitally penetrating her vagina.

{¶ 3} Appellant pled not guilty to the charges and a bench trial before Judge Michael E. Gilb commenced on October 17, 2016. At trial, the state presented testimony from H.T., H.T.'s mother, Carlisle Police Officer Kathleen Gee, and Warren County Sheriff's Detective Christopher Wong. H.T. testified that she was 16 years old and lived in a home in Carlisle, Warren County, Ohio with her mother, younger brother, and appellant.

{¶ 4} H.T. stated that shortly after she turned 15, appellant began to sexually assault her. The first incident occurred in September 2015, in the living room of their family home. H.T. was lying on the floor watching television when appellant sat down behind her and put his hands on her butt. When appellant moved his hands between her legs, she told him to stop. Appellant briefly removed his hands, but put them back a few seconds later. This time appellant placed his hands inside H.T.'s shorts and underwear and "put his fingers into the opening of [her] vagina." H.T. got off the floor and moved to a chair, but appellant followed her. He put his hands around the chair, with one hand on each arm of the chair so that he was facing her. Appellant told H.T. he was sorry and that "it wouldn't happen again." He also told her that she "better not tell anyone that it happened." H.T. explained that she was scared when appellant put his arms around the chair and told her not to tell anyone as appellant, who is 6' 2? tall and weighs 325 pounds, is substantially bigger than her and he was in possession of a pocketknife. According to H.T., appellant was "playing around with [the pocketknife], like moving it around as he talked to [her]."

{¶ 5} A second incident occurred a few nights later, when appellant came into H.T.'s bedroom between 1:00 a.m. and 2:00 a.m., while she was sleeping. H.T. testified she awoke to find appellant's hand "up in between [her] legs" with his fingers inside her vagina. Appellant was kneeling by her bed, dressed only in his underwear, and was holding a flashlight. Neither H.T. nor appellant said anything to the other. H.T. rolled over to get appellant to remove his hand from between her legs. Shortly thereafter, appellant left H.T.'s bedroom.

{¶ 6} H.T. testified that after this event, appellant began sexually abusing her "a couple of times a week" until she reported his conduct on April 21, 2016. H.T. explained that the abuse always occurred in her bedroom during the early morning hours. Sometimes she could stop the abuse from happening by waking up as appellant entered her room. When this occurred, she would sit up and ask appellant what he was doing, and he would tell her he was checking out a noise he heard. Other times, H.T. would wake up after the abuse had already started and appellant was touching her. Appellant would be by her bed with a cellphone and pocketknife in hand. Appellant would use his cellphone as a flashlight. As for the pocketknife, appellant would either place the pocketknife on H.T.'s dresser or place it on the bed near H.T. H.T. testified, "I didn't know why he would have [the pocketknife]. He didn't have any pockets because he was never wearing anything but underwear, so I didn't know why he'd bring it with him." H.T. could not remember whether appellant pointed the pocketknife at her in a threatening manner, but stated he never verbally threatened her with the knife.

{¶ 7} H.T. detailed assaults that occurred in October, November, and December of 2015, as well as in January, February, March, and April of 2016. She testified that in October 2015, a day or two before Halloween, appellant came into her room sometime between 1:30 a.m. and 3:00 a.m. and woke her up by placing his fingers inside her vagina. Appellant had a flashlight with him at the time, but H.T. could not remember whether he had the pocketknife. In November 2015, appellant came into H.T.'s bedroom in the middle of the night in his underwear and touched her "inside her vagina." In December 2015, about two weeks before Christmas, appellant came into H.T.'s room at night and put his fingers inside her vagina. He did the same thing in January 2016, entering her room and touching her on the "inside of her vagina." In February 2016, about two days after Valentine's Day, and in March 2016, appellant again entered H.T.'s bedroom in the middle of the night and put his fingers inside her vagina. H.T. explained that when appellant came into her room on all of those occasions, he would also touch her chest and buttocks. She testified appellant's digital penetration of her vagina "sometimes" caused her pain and discomfort.

{¶ 8} H.T. did not disclose the abuse until April 21, 2016. On that date, H.T. was awakened in the early morning hours when appellant entered her bedroom, grabbed her chest, and put his fingers inside her vagina. Appellant was in his underwear at the time and had a flashlight with him. Later that morning, after H.T. left her home to attend school, H.T. texted appellant that he woke her up last night and she was going to disclose the abuse. Appellant apologized for his actions and begged H.T. not to tell anyone. The following text messages were exchanged:

H.T.: you woke me up last night
Appellant: When?
H.T.: when you came in my room
Appellant: I'm sorry.
H.T.: don't ever do that again, please, that's not okay
Appellant: Never again. I'm so sorry. That was stupid and I know it.
Appellant: I love you too much to be stupid.
Appellant: And care too much about you. Not sure what I was thinking but you can rest assured never again.
Appellant: Ok
Appellant: I promise.
Appellant: Please answer me.
H.T.: I need to tell mom about it tho because that's not okay an[d] it's not the first time you've done it.
Appellant: Please don't. I will never ever do something so stupid ever again. Please be live [sic] me. Please don't. [H.T.], I know it was wrong. And I am sick to [my] stomach. I beg you to not say anything. I never want our family destroyed because of my stupidity. Please trust me. Absolutely never will I be so f****** stupid again. Please.
Appellant: You are 100% right. It's wrong and I am a f****** idiot. But please give me the opportunity to make things right.
H.T.: I have to that's not okay an[d] you already said it would never happen agai[n].
* * *
Appellant: Please don't say anything to her. I swear to you. Absolutely never will anything like this go on [sic]. Never.
Appellant: Please.
Appellant: Give me one last opportunity. I swear to god. Never again.
Appellant: You are so special to me. And I don't want stupidity to hurt us.
Appellant: Can you please not say anything and let me prove to you that I am totally sincere.
Appellant: Please answer me.
Appellant: I have way to[o] much to lose. You all are so important to me and I just can't stand to lose you. I'm so sorry [H.T.].
Appellant: Please.
Appellant: Please trust me when I tell you that this will never happen again. I promise you. I got to have this one last chance. Please, I can't be without my family. I love you all way too much.
* * *
H.T.: I don't trust you.
Appellant: I know. And I'm so sorry. Please let me have the opportunity to regain your trust. I swear to you I am never ever going to do anything as stupid as that ever. It breaks my heart to know I have been such an idiot. Please. You and I can fix this together.
H.T. No, I don't trust you and I have to tell someone what you did.

{¶ 9} Once at school, H.T. disclosed the abuse to a friend, a teacher, and the principal. H.T.'s principal called the police and Officer Gee came to the school to talk to H.T. While Gee was taking H.T.'s statement, appellant continued to send text messages to H.T.'s cellphone.

{¶ 10} After obtaining H.T.'s statement and viewing the text messages appellant sent to H.T.'s phone, Gee had appellant arrested. H.T. went to Dayton Children's Hospital for a sexual assault examination. Although the examination did not reveal any abnormalities or injuries, the treating physician's final impression was "[s]exual child abuse, suspected."

{¶ 11} After appellant was arrested, he waived his Miranda rights and spoke with Detective Wong and another officer, Detective Englehardt. This interview was recorded and the recording was admitted into evidence at trial. During the interview, appellant admitted he made a "mistake" and touched H.T. "in places she shouldn't be touched." Although appellant denied penetrating H.T.'s vagina, he admitted that he touched her breasts and her vaginal area "skin to skin" with his hands. He stated he had touched H.T. "maybe once a week for the last couple months," with the last time being "last night." He told the detectives that the incidents occurred in H.T.'s bedroom in the middle of the night and that he used the light on his cellphone to see.

{¶ 12} While appellant was in jail awaiting trial, he spoke to various members of his family over the telephone. These calls were recorded and the recordings were admitted into evidence at trial. During these phone calls, appellant stated he "f***** up" and "did something really bad." He admitted he "touched [H.T.] inappropriately" and that "she's not making anything up. It's not her fault."

{¶ 13} Following the state's presentation of its case-in-chief, appellant moved for acquittal pursuant to Crim.R. 29. The trial court denied appellant's motion, and appellant testified in his own defense. Appellant stated he "made a mistake" on April 21, 2016, and wanted to "own up to it." He admitted he touched H.T. inappropriately on that date when he "pulled her underwear to the side and there was contact. [He] put [his] finger behind her underpants." However, appellant denied penetrating H.T.'s vagina with his fingers on this occasion or on any other occasion. He also denied that he had a pocketknife in his possession on this occasion.

{¶ 14} Appellant claimed his statement to law enforcement that he touched H.T. "maybe once a week for the last couple months" was not accurate. Appellant testified there were only two other instances when he touched H.T., and, according to appellant, on both of those occasions the touching was accidental. Appellant explained that he once touched H.T. in the living room of their home when they were on the floor playing with the family dog. He testified:

And H.T. came out of her room and she laid down on the floor with us. One thing that we did quite regularly was kind of play keep away with the ball with the dog. And she'd push at me and I'd push at her and what not. And I wasn't looking at her and I raised my arm out in front to push her out of the way and I stuck my hand between her legs. And I know that I touched her, you know, I touched her where I shouldn't have. But I mean it was-I wasn't looking, it was an accident.

The other incident occurred when appellant went into H.T.'s room to take off her glasses and turn off the television. According to appellant, "[H.T.'s] shirt was over to the side and one of her breasts was almost exposed." Appellant stated he "pulled her bra back over and pulled her shirt back over," but that was the extent of the touching.

{¶ 15} Appellant testified he never made any threats against H.T. concerning the inappropriate touching. He also denied that he threatened her not to tell others about the inappropriate touching.

{¶ 16} After hearing the forgoing testimony, Judge Gilb found appellant guilty of eight counts of sexual battery and seven counts of GSI. Judge Gilb ordered that a presentence investigation report ("PSI") be prepared and set the matter for sentencing. However, due to a family emergency for defense counsel and conflicts in Judge Gilb's schedule, appellant could not be sentenced by Judge Gilb prior to the expiration of his judicial term. Therefore, on December 9, 2016, appellant was sentenced by Judge Donald E. Oda II.

{¶ 17} At the sentencing hearing, Judge Oda indicated he had reviewed the PSI, the exhibits introduced at trial, and "a legal pad which is about probably two-thirds of the way full with Judge Gilb's trial notes." Judge Oda heard a prepared statement from H.T. and heard from H.T.'s mother and the state. The state stipulated that the GSI and sexual battery convictions were allied offenses of similar import and it elected to proceed on the sexual battery offenses. The state recommended consecutive 36-month prison terms on each of the sexually battery convictions, for a total prison term of 24 years. After hearing the foregoing, Judge Oda classified appellant as a Tier III sex offender and imposed a 42-month prison sentence on each of the sexual battery counts. The prison terms were run consecutively, for a total prison term of 28 years.

{¶ 18} Appellant timely appealed, raising three assignments of error for our review.

{¶ 19} Assignment of Error No. 1:

{¶ 20} THE TRIAL COURT ERRED BY FINDING B.J.T. GUILTY OF SEXUAL BATTERY AND GROSS SEXUAL IMPOSITION BECAUSE THE VERDICTS ARE NOT SUPPORTED BY SUFFICIENT EVIDENCE AND ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶ 21} In his first assignment of error, appellant argues his convictions for GSI and sexual battery were not supported by sufficient evidence and were against the manifest weight of the evidence.

{¶ 22} Whether the evidence presented at trial is legally sufficient to sustain a verdict is a question of law. State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997) ; State v. Grinstead , 194 Ohio App.3d 755, 2011-Ohio-3018, 958 N.E.2d 177, ¶ 10 (12th Dist.). When reviewing the sufficiency of the evidence underlying a criminal conviction, an appellate court examines the evidence in order to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Paul , 12th Dist. Fayette No. CA2011-10-026, 2012-Ohio-3205, 2012 WL 2877754, ¶ 9. Therefore, "[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

{¶ 23} On the other hand, a manifest weight of the evidence challenge examines the "inclination of the greater amount of credible evidence, offered at a trial, to support one side of the issue rather than the other." State v. Barnett , 12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, 2012 WL 1940800, ¶ 14. To determine whether a conviction is against the manifest weight of the evidence, the reviewing court must look at the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether in resolving the conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. State v. Graham , 12th Dist. Warren No. CA2008-07-095, 2009-Ohio-2814, 2009 WL 1659049, ¶ 66. In reviewing the evidence, an appellate court must be mindful that the jury, as the original trier of fact, was in the best position to judge the credibility of witnesses and determine the weight to be given the evidence. State v. Blankenburg , 197 Ohio App.3d 201, 2012-Ohio-1289, 966 N.E.2d 958, ¶ 114 (12th Dist.). Therefore, an appellate court will overturn a conviction due to the manifest weight of the evidence "only in the exceptional case in which the evidence weighs heavily against the conviction." Id. , citing State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).

{¶ 24} Further, although the legal concepts of sufficiency of the evidence and weight of the evidence are quantitatively and qualitatively different, "[a] determination that a conviction is supported by the manifest weight of the evidence will also be dispositive of the issue of sufficiency." State v. Jones , 12th Dist. Butler No. CA2012-03-049, 2013-Ohio-150, 2013 WL 226898, ¶ 19. See also State v. Hart , 12th Dist. Brown No. CA2011-03-008, 2012-Ohio-1896, 2012 WL 1494524, ¶ 43 ("a finding that a conviction is supported by the weight of the evidence must necessarily include a finding of sufficiency").

Sexual Battery

{¶ 25} Appellant was convicted of sexual battery in violation of R.C. 2907.03(A)(5), which provides that "[n]o person shall engage in sexual conduct with another, not the spouse of the offender, when * * * [t]he offender is the other person's natural or adoptive parent, or a stepparent, or guardian, custodian, or person in loco parentis of the other person." Sexual conduct includes "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." R.C. 2907.01(A).

{¶ 26} Appellant argues the state failed to present evidence of penetration "beyond H.T.'s subjective testimony, and all other objective evidence points to the opposite conclusion." He contends that because the medical records from H.T.'s sexual assault examination did not show abnormalities or injuries, "the medical report lends credibility to [his] statements that no penetration occurred."

{¶ 27} However, after reviewing the record, weighing inferences and examining the credibility of the witnesses, we find that appellant's convictions for sexual battery are supported by sufficient evidence and are not against the manifest weight of the evidence. The state presented testimony and evidence proving all the essential elements of the offenses beyond a reasonable doubt. The state introduced testimony from H.T. that appellant engaged in sexual conduct by digitally penetrating her vagina in September, October, November, and December 2015, and in January, February, March, and April 2016. For all but the September 2015 offense, H.T. testified appellant entered her bedroom while she was sleeping and put his fingers into her vagina or touched her "inside her vagina." As for the September 2015 offense, H.T. explained appellant put his hands between her legs, inside her shorts and underwear, and put his fingers into her vagina while she was lying on the floor in the living room.

{¶ 28} Contrary to appellant's arguments, H.T.'s testimony is sufficient, on its own, to establish the element of penetration. " 'There is nothing in the law that requires that a sexual assault victim's testimony be corroborated as a condition precedent to conviction.' " State v. Robinson , 12th Dist. Butler No. CA2015-01-013, 2015-Ohio-4533, 2015 WL 6658671, ¶ 41, quoting State v. West , 10th Dist. Franklin No. 06AP-111, 2006-Ohio-6259, 2006 WL 3438651, ¶ 16. See also State v. Nivens , 10th Dist. Franklin No. 95APA09-1236, 1996 WL 284714, *2 (May 28, 1996) (holding that "[e]ven without corroborating medical evidence, a victim's testimony that the perpetrator placed his penis in her vagina constitutes penetration"). Further, the medical report was not inconsistent with H.T.'s testimony. The fact that there were no injuries or abnormalities found during H.T.'s examination on April 21, 2016, does not mean that appellant did not penetrate H.T.'s vagina when he sexually assaulted her. It merely indicates that appellant's assault of the victim in the early morning hours of April 21, 2016, did not cause any lacerations or observable physical harm to H.T.'s vaginal area.

{¶ 29} Here, the trial court, as the trier of fact, "was in the best position to judge the credibility of witnesses and the weight to be given the evidence." State v. Patterson , 12th Dist. Butler No. CA2001-09-222, 2002-Ohio-5996, 2002 WL 31443546, ¶ 12. The court was entitled to weigh H.T.'s testimony that appellant digitally penetrated her vagina against the version of events appellant testified to at trial. Though appellant denied ever penetrating H.T.'s vagina and testified that there were only three instances in which he inappropriately touched H.T., with two of those instances being accidental, appellant's April 21, 2016 statement to law enforcement indicated he had been intentionally touching H.T. inappropriately for "maybe once a week for the last couple months." Appellant's convictions are not against the manifest weight of the evidence simply because the trier of fact believed the testimony and evidence offered by the prosecution. See State v. Lunsford , 12th Dist. Brown No. CA2010-10-021, 2011-Ohio-6529, 2011 WL 6382534, ¶ 17 ; State v. Erickson , 12th Dist. Warren No. CA2014-10-131, 2015-Ohio-2086, 2015 WL 3452647, ¶ 42.

{¶ 30} Accordingly, given the evidence presented at trial, we find that appellant's convictions for sexual battery are supported by sufficient evidence and are not against the weight of the evidence.

Gross Sexual Imposition

{¶ 31} Appellant was convicted of seven counts of GSI in violation of R.C. 2907.05(A)(5), which provides that

[n]o person shall have sexual contact with another, not the spouse of the offender * * * when * * * [t]he ability of the other person to resist or consent * * * is substantially impaired because of a mental or physical condition or because of advanced age, and the offender knows or has reasonable cause to believe that the ability to resist or consent of the other person * * * is substantially impaired because of a mental or physical condition or because of advanced age.

Sexual contact "means any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, public 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). "[S]leep is a 'mental or physical condition' sufficient to substantially impair a victim's ability to resist [or consent to] * * * sexual contact within the meaning of R.C. 2907.05(A)(5)." State v. Porter , 9th Dist. Medina No. 12CA0061-M, 2013-Ohio-3969, 2013 WL 5211815, ¶ 19. See also State v. Coran , 2d Dist. Clark No. 2014-CA-17, 2014-Ohio-4406, 2014 WL 4953547, ¶ 6, fn. 3.

{¶ 32} Appellant argues the state failed to prove the sexual arousal or gratification element of GSI, as the only evidence of sexual gratification offered by the state was H.T.'s mother's testimony that on one occasion, she woke up one night to find appellant masturbating beside her in bed. Appellant argues this testimony is "irrelevant and unrelated to [his] alleged conduct." Appellant argues that because H.T.'s mother's testimony is not linked to any specific date, "there is no evidence that this happened because of [his] actions concerning H.T."

{¶ 33} "While an essential element of the offense of gross sexual imposition is that the act is for the 'purpose of sexual arousal or gratification,' there is no requirement that there be direct testimony regarding sexual arousal or gratification." State v. English , 12th Dist. Butler No. CA2013-03-048, 2014-Ohio-441, 2014 WL 539893, ¶ 69. "Whether the touching was performed for the purpose of sexual arousal or gratification is a question of fact to be inferred from the type, nature, and circumstances of the contact." State v. Williams , 12th Dist. Warren No. CA2012-08-080, 2013-Ohio-3410, 2013 WL 3982487, ¶ 33. In making this determination, the trier of fact is "permitted to infer what the defendant's motivation was in making the physical contact with the victim." Robinson , 2015-Ohio-4533, 48 N.E.3d 109, ¶ 43. "If the trier of fact determines that the defendant was motivated by desires of sexual arousal or gratification, and that the contact occurred, then the trier of fact may conclude that the object of the defendant's motivation was achieved." State v. Pence , 12th Dist. Warren No. CA2012-05-045, 2013-Ohio-1388, 2013 WL 1397277, ¶ 78.

{¶ 34} Contrary to appellant's arguments, we find that his convictions for GSI are supported by sufficient evidence and are not against the manifest weight of the evidence as the state presented testimony and evidence proving beyond a reasonable doubt all the essential elements of GSI, including the sexual arousal or gratification element. In addition to H.T.'s mother's testimony that she once woke up in the middle of the night to appellant masturbating, the state introduced evidence that appellant repeatedly entered H.T.'s bedroom in the middle of the night while H.T. was alone and sleeping. Dressed only in his underwear, appellant would touch H.T.'s buttocks, chest, and vagina while using a cellphone to see what he was doing. After the first time appellant assaulted H.T., he told her she "better not tell anyone that it happened," and months later, after H.T. informed appellant that she was going disclose the abuse, he begged her to remain silent. Looking at appellant's behavior and the type, nature, and circumstances surrounding the sexual contact, we find that the finder of fact could properly infer that appellant's motivation in making physical contact with H.T.'s erogenous zones was sexual arousal or gratification. The finder of fact was entitled to conclude that there was no innocent or nonsexual explanation for appellant's conduct. See State v. Goldblum , 2d Dist. Montgomery No. 25851, 2014-Ohio-5068, 2014 WL 6090641, ¶ 17 ; State v. Wilson , 192 Ohio App.3d 189, 2011-Ohio-155, 948 N.E.2d 515, ¶ 47 (11th Dist.).

{¶ 35} Accordingly, for the reasons stated above, we find that appellant's convictions for GSI are supported by sufficient evidence and are not against the weight of the evidence. Appellant's first assignment of error is, therefore, overruled.

{¶ 36} Assignment of Error No. 2:

{¶ 37} THE TRIAL COURT ERRED AND IMPOSED A SENTENCE CLEARLY AND CONVINCINGLY CONTRARY TO LAW BECAUSE THE SENTENCING JUDGE CONSIDERED UNRELIABLE MATERIALS AT SENTENCING AND FAILED TO BECOME FAMILIAR WITH THE FACTS.

{¶ 38} In his second assignment of error, appellant contends that where the sentencing judge is different from the trial judge, it is improper for the sentencing judge to rely on the personal notes of the trial judge to inform himself of the facts of a case before imposing a sentence. Appellant argues Judge Oda's use of Judge Gilb's handwritten trial notes resulted in prejudicial error, as the notes contained Judge Gilb's private thoughts and characterizations, rather than a direct record of what was testified to at trial. Because the notes may contain "extraneous thoughts; statements that the note-taker later disregarded; misstatements of the record; half-formed ideas; or terms that have a different meaning to the note-taker than they might have to the note-reader," appellant argues that they are unreliable. Appellant believes Judge Oda should have read the trial transcript to familiarize himself with the evidence, and that doing so would have informed him of the inconsistences between the victim's and victim's mother's trial testimony and their statements at the sentencing hearing.

{¶ 39} Pursuant to Crim.R. 25(B), "[i]f for any reason the judge before whom the defendant has been tried is unable to perform the duties of the court after a verdict or finding of guilt, another judge designated by the administrative judge, or, in the case of a single-judge division, by the Chief Justice of the Supreme Court of Ohio, may perform those duties." If the newly designated judge "is satisfied that he cannot perform those duties because he did not preside at the trial, he may in his discretion grant a new trial." Id.

{¶ 40} Generally, "a defendant who fails to timely object to the substitution of a judge waives his right to challenge the reassignment." State v. Scurlock , 6th Dist. Lucas No. L-15-1200, 2017-Ohio-1219, 2017 WL 1193825, ¶ 57, citing State v. Ross (In re Cirigliano) , 105 Ohio St.3d 1223, 2004-Ohio-7352, 826 N.E.2d 287, ¶ 26. However, in the present case, appellant does not challenge Judge Oda's right to sentence him in accordance with Crim.R. 25(B). Rather, appellant challenges the manner in which Judge Oda sentenced him, arguing that Judge Oda should not have used or relied upon Judge Gilb's personal notes in imposing sentence. As appellant was informed at the sentencing hearing that Judge Oda had reviewed a "legal pad which is about probably two-thirds of the way full with Judge Gilb's trial notes," and appellant did not object to the court using this information in imposing his sentence, appellant has waived all but plain error on review. Plain error exists where there is an obvious deviation from a legal rule that affected the defendant's substantial rights or influenced the outcome of the proceeding. Crim.R. 52(B) ; State v. Barnes , 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002) ; State v. Davis , 12th Dist. Clinton No. CA2015-12-022, 2017-Ohio-495, 2017 WL 564021, ¶ 24.

{¶ 41} In support of his argument that his substantial rights were affected at sentencing, appellant relies on the Ninth Circuit Court of Appeals' decisions in United States v. Jones , 982 F.2d 380 (9th Cir.1992) ; and United States v. Larios , 640 F.2d 938 (9th Cir.1981). In these cases, the Ninth Circuit recognized that a defendant has a "due process right to have his sentence based on accurate information." Jones at 385. In Jones , the Ninth Circuit found reversible error where a sentencing judge who was different from the trial judge imposed a sentence on a defendant convicted of various drug-related offenses without properly familiarizing himself with the record. Id. The court noted that "the degree of familiarity necessary will vary with the nature of the case: 'the more the case depends on the credibility, and especially the demeanor, of the witnesses, the more a judge needs to do to become adequately familiar with it.' " Id. , quoting Larios , 640 F.2d at 943. Here, the sentencing judge merely discussed the defendant's case with the trial judge and indicated that in imposing the sentence, he was acquiescing in the trial judge's view of the case. Id.

{¶ 42} In Larios , the Ninth Circuit found reversible error where a new sentencing judge refused to wait for a transcript of the trial to be prepared and, instead, relied on a report from a probation officer to familiarize himself with the case. Larios at 942-943. While recognizing that "[b]ecoming adequately familiar [with a case] does not always require the reading of a transcript, although a transcript will often be helpful, and sometimes essential," the Ninth Circuit determined that the sentencing judge lacked familiarity with the case, as evidenced by the factual findings that he made at sentencing hearing that were inconsistent with the evidence presented at trial. Id. at 943.

{¶ 43} The present case is similar to Larios and Jones in that Judge Oda did not review a transcript of the trial proceedings before sentencing appellant. Rather, Judge Oda attempted to familiarize himself with the case by reviewing the PSI, the trial exhibits, and Judge Gilb's trial notes. We find the use of Judge Gilb's personal notes troubling. As the Ohio Supreme Court has recognized, "[a] trial judge's personal handwritten notes made during the course of a trial are not public records. * * * [S]uch notes are simply personal papers kept for the judge's own convenience and [are] not official records." State ex rel. Steffen v. Kraft , 67 Ohio St.3d 439, 439-440, 619 N.E.2d 688 (1993). As Judge Gilb's handwritten notes are not an official record of proceedings, the notes were not made part of the record on appeal. Like the parties below, we are left to speculate about the notes' content and accuracy.

{¶ 44} Appellant's substantial rights were affected by the sentencing judge's decision to utilize and rely on information that was not a part of the record and that is therefore not capable of being reviewed on appeal. "[T]he reliability and truthfulness of the information considered in sentencing remains a matter of fundamental concern." Collins v. Buchkoe , 493 F.2d 343, 345 (6th Cir.1974). See also United States v. Jones , 6th Cir. No. 00-0740, 2002 U.S. App. LEXIS 5958, *7 (Mar. 27, 2002) (noting that "[d]efendants have a due process right to a sentence based on accurate information"). The consideration of accurate and reliable information is critical to fulfilling the principles and purposes of felony sentencing. See R.C. 2929.11 and 2929.12. To impose a sentence that is reasonably calculated to both protect the public from future crime by the offender and to punish the offender, the sentencing court must consider reliable information about the offender's conduct and its impact on the victim. R.C. 2929.11(A) and (B). The court must also have accurate information regarding the seriousness of an offender's conduct. See R.C. 2929.12(B) and (C).

{¶ 45} Accordingly, under the facts presented in this case, where the sentencing judge relied on another judge's personal notes and impressions in attempting to familiarize himself with the case, rather than reviewing an official record of the proceedings, we conclude that there was error prejudicial to appellant's substantial rights relative to sentencing.

{¶ 46} Furthermore, inconsistencies between the trial testimony and the information relied upon by Judge Oda in sentencing appellant suggest that a review of the trial transcript was necessary. Judge Oda could not have known of the inconsistencies that existed in H.T.'s and H.T.'s mother's statements at sentencing, as compared to their trial testimonies, because he was not the judge who presided at appellant's trial. In determining the seriousness of appellant's conduct and the impact appellant's conduct had on the victim, Judge Oda did not have the chance to examine or weigh H.T.'s mother's claim at sentencing that appellant had been "threaten[ing] * * * [H.T.] with knives and constantly playing with guns around her" or both H.T. and H.T.'s mother's claims that appellant had threatened to kill H.T., H.T.'s mother, and H.T.'s brother if H.T. told anyone about the abuse against the testimony presented at trial. If Judge Oda had the opportunity to review the trial transcript, he would have discovered that the only knife discussed at trial was appellant's pocketknife and there had been no mention of guns or threats to kill H.T.'s family presented at trial. This information may have impacted appellant's sentence, as it is the sentencing judge that determines the weight afforded to any particular statutory factor, mitigating grounds, or other relevant circumstance. See State v. Steger , 12th Dist. Butler No. CA2016-03-059, 2016-Ohio-7908, 2016 WL 6948166, ¶ 18. Judge Oda should have the opportunity to consider the inconsistencies that existed between the trial testimony and the statements made at sentencing in examining the seriousness of appellant's conduct and the impact appellant's conduct had on the victim before imposing a sentence that fulfills the principles and purposes of felony sentencing.

{¶ 47} Therefore, for the reasons stated above, we find that the trial court erred in imposing appellant's sentence. We sustain appellant's second assignment of error, reverse the sentence imposed by the trial court, and remand the matter for resentencing. On remand, the sentencing judge is instructed to familiarize himself with the case through the official records of the proceedings and by reviewing the trial transcript and is to sentence appellant in accordance with the principles and purposes of felony sentencing.

{¶ 48} Assignment of Error No. 3:

{¶ 49} THE TRIAL COURT ERRED AND IMPOSED A SENTENCE CLEARLY AND CONVINCINGLY CONTRARY TO LAW BECAUSE THE SENTENCE WAS IMPOSED CONSECUTIVELY RATHER THAN CONCURRENTLY, IS DISPROPORTIONATE TO THE CRIME COMMITTED, AND IS NOT SUPPORTED BY THE RECORD.

{¶ 50} In his third assignment of error, appellant argues the trial court erred when it sentenced him to an aggregate prison term of 28 years. Appellant contends the court should have imposed concurrent, rather than consecutive, prison terms and that the 42-month prison term imposed on each of the sexual battery convictions was excessive and contrary to law. However, this assignment of error is moot given our resolution of appellant's second assignment of error. See App.R. 12(A)(1)(c) ; State v. Magallanes , 3d Dist. Putnam No. 12-14-02, 2014-Ohio-4878, 2014 WL 5510751, ¶ 31.

{¶ 51} Judgment affirmed in part, reversed in part, and the cause remanded for resentencing consistent with this opinion.

PIPER and M. POWELL, JJ., concur.

      The indictment originally specified that the gross sexual imposition ("GSI") offenses were felonies of the third degree. During pretrial discussions, the court and the parties agreed that the indicted offenses were actually felonies of the fourth-degree, in accordance with R.C. 2907.05(C)(1). Appellant was later convicted of seven fourth-degree felony GSI offenses.

      In 2015, Judge Gilb was appointed by Governor John Kasich to fill a vacancy on the Warren County Court of Common Pleas. Judge Gilb's term ended in December 2016.

      The trial transcript was not prepared until January 2017, which was well after appellant was sentenced on December 9, 2016.


author: S. POWELL, J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Wade J. HENSGEN, Defendant-Appellant.
    NO. CA2017-01-008
    Court of Appeals of Ohio, Twelfth District, Clermont County.
    December 4, 2017
    D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas A. Horton, 76 South Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee
    Denise S. Barone, 385 North Street, Batavia, Ohio 45103, for defendant-appellant
   S. POWELL, J.

{¶ 1} Defendant-appellant, Wade J. Hensgen, appeals from his conviction and aggregate five-year prison sentence he received in the Clermont County Court of Common Pleas after a jury found him guilty of several felony drug offenses. For the reasons outlined below, we affirm.

{¶ 2} On June 6, 2016, the Clermont County Grand Jury returned an indictment charging Hensgen with two second-degree felonies for illegal manufacturing of methamphetamine and aggravated possession of methamphetamine, as well as two fifth-degree felonies for possession of heroin and aggravated possession of fentanyl. The charges arose after Hensgen was found by his mother overdosed on heroin in a detached garage at her home located on property at 1712 Lindale-Nicholsville Road, Clermont County, Ohio, thus requiring EMS to administer Narcan to save her son's life. It is undisputed that Hensgen, who was then 40 years old, lived at the Lindale-Nicholsville Road property with his mother.

{¶ 3} After the call for help went out, EMS and several law enforcement officers from the Clermont County Sheriff's Office responded to the scene, as well as one agent with the Union Township Police Department assigned to the Clermont County Narcotics Unit. Once there, the officers discovered in plain view a syringe next to where Hensgen had overdosed, as well as substances the officers believed to be heroin and fentanyl, an active "one-pot" methamphetamine lab, and numerous other items affiliated with the production of methamphetamine. Testing of the items later revealed the active methamphetamine lab contained a total of 100.938 grams of methamphetamine. Hensgen later admitted to using heroin and further acknowledged that this was his third overdose that week that required EMS to administer Narcan in order to save his life.

{¶ 4} On August 17, 2016, after filing several motions waiving his speedy trial rights, Hensgen filed a motion to suppress the items seized from the garage where he was found following his heroin overdose. In support of this claim, Hensgen alleged the law enforcement officers-Corporal William Crouch, Deputies Danny Spears and Tyler Kramer, and Agent Bryan Taylor-violated his Fourth Amendment rights by conducting an unlawful search of the garage. The trial court held a hearing on the matter on October 11, 2016, wherein it heard testimony from Corporal Crouch, Deputies Spears and Kramer, and Agent Taylor. The relevant testimony from these witnesses is summarized more fully below.

{¶ 5} Deputy Kramer was the first to arrive at the scene after receiving a report of an unresponsive male, later identified as Hensgen. Once there, and upon entering the garage where Hensgen was found unresponsive by his mother, Deputy Kramer testified he observed EMS providing treatment to Hensgen in order to revive him. During this time, Deputy Kramer testified he noticed in plain view a syringe on the floor next to Hensgen's body, thus indicating a possible heroin overdose. Deputy Kramer further testified EMS told him they had administered Narcan to Hensgen. It is undisputed that Hensgen was subsequently revived, removed from the scene by EMS, and transported by ambulance to the hospital. However, prior to Hensgen being removed from the scene, and while still inside the garage, Deputy Kramer testified he also observed in plain view what he believed to be an active methamphetamine lab contained within a mason jar located on a small workbench within a few feet from where Hensgen had been found.

{¶ 6} After discovering what he believed to be an active methamphetamine lab, Deputy Kramer testified he and Deputy Spears, who had since arrived at the scene, evacuated the garage and the surrounding area due to "safety issues" resulting from the volatile nature and potential fire hazards associated with active methamphetamine labs. Deputy Kramer then testified that Deputy Spears called their supervisor, Corporal Crouch. According to Deputy Kramer, this is standard protocol upon discovering what might be an active "one-pot" methamphetamine lab. Deputy Kramer also testified he found several additional syringes "just out in the open" next to the suspected methamphetamine lab.

{¶ 7} As noted above, Deputy Spears was next to arrive on the scene. Upon his arrival, Deputy Spears testified he observed the unresponsive male, Hensgen, receiving treatment from EMS with the assistance of Deputy Kramer. After EMS revived Hensgen with Narcan and placed him in the ambulance for transportation to the hospital, Deputy Spears testified he and Deputy Kramer "looked in the general area where the squad members were to make sure that they had their bags, equipment, and stuff like that." During this check, Deputy Spears testified he also observed in plain view several syringes and "a glass jar that was boiling over" sitting on a workbench less than five feet from where Hensgen had been found. Based on his training and experience, Deputy Spears also testified he believed the mason jar contained an active "one-pot" methamphetamine lab.

{¶ 8} Continuing, Deputy Spears testified he then called Corporal Crouch and later the Clermont County Narcotics Unit to come to the scene to identify and safely dismantle the suspected methamphetamine lab. Just as Deputies Kramer and Spears, Corporal Crouch also testified that upon his arrival at the scene he observed the suspected methamphetamine lab "in plain sight right there in the-on the little table or shelf thing * * *." Thereafter, when asked if an active methamphetamine lab like the one found in the garage created any safety concerns, Corporal Crouch testified that "[w]ith any meth lab there is a safety concern" since "[i]t could blow up or start a-sparks-some sparks in there, just a fire hazard."

{¶ 9} Agent Taylor testified he was dispatched to the scene to identify and dismantle the suspected "one-pot" methamphetamine lab. During this time, it is undisputed that Agent Taylor took a sample from the mason jar that tested positive for methamphetamine. After dismantling the methamphetamine lab, Agent Taylor testified he then looked around the garage for any other vessels since "it's common sometimes for there to be more than one reaction vessel, to be in an area where there's one." It is undisputed that Agent Taylor's search of the garage uncovered lithium batteries, empty pseudoephedrine blister packs, two pieces of tubing-all items commonly used in the manufacturing of methamphetamine-as well as "a white powder on a tray that was on the workbench, and a syringe." Hensgen did not testify at the suppression hearing.

{¶ 10} On October 21, 2016, the trial court issued a decision denying Hensgen's motion to suppress. In so holding, the trial court determined exigent circumstances existed that permitted Deputy Kramer to lawfully enter the garage where Hensgen was receiving medical treatment from EMS for a suspected heroin overdose, during which he noticed in plain view a "needle near the defendant and, within feet of the defendant, he saw what appeared to be an active methamphetamine lab." As a result, the trial court determined Deputy Kramer, and by extension Deputy Spears, Corporal Crouch, and Agent Taylor, "had probable cause to believe that there was a probability or substantial chance of criminal activity." Concluding, the trial court determined "exigent circumstances existed which excused the warrant requirement," and therefore, "the officers' subsequent search of the garage and seizure of suspected drug paraphernalia" did not violate any of Hensgen's constitutional rights.

{¶ 11} The matter then proceeded to a three-day jury trial that ultimately concluded on December 21, 2016. Following deliberations, the jury returned a verdict finding Hensgen not guilty of aggravated possession of fentanyl, but guilty of illegal manufacturing of methamphetamine, aggravated possession of methamphetamine, and possession of heroin. The trial court then merged the charges of illegal manufacturing of methamphetamine with the aggravated possession of methamphetamine for purposes of sentencing, with the state electing to proceed as to the illegal manufacturing of methamphetamine charge. Thereafter, the trial court sentenced Hensgen to serve an aggregate term of five years in prison and notified Hensgen that he would be subject to a mandatory three-year term of postrelease control.

{¶ 12} Hensgen now appeals, raising three assignments of error for review.

{¶ 13} Assignment of Error No. 1:

{¶ 14} THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS.

{¶ 15} In his first assignment of error, Hensgen argues the trial court erred by denying his motion to suppress. We disagree.

{¶ 16} Appellate review of a ruling on a motion to suppress presents a mixed question of law and fact. State v. Gray , 12th Dist. Butler No. CA2011-09-176, 2012-Ohio-4769, 2012 WL 4862665, ¶ 15, citing State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. When considering a motion to suppress, the trial court, as the trier of fact, is in the best position to weigh the evidence in order to resolve factual questions and evaluate witness credibility. State v. Vaughn , 12th Dist. Fayette No. CA2014-05-012, 2015-Ohio-828, 2015 WL 1005336, ¶ 8. In turn, this court is bound to accept the trial court's findings of fact if they are supported by competent, credible evidence. State v. Dugan , 12th Dist. Butler No. CA2012-04-081, 2013-Ohio-447, 2013 WL 501722, ¶ 10. " 'Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard.' " State v. Runyon , 12th Dist. Clermont No. CA2010-05-032, 2011-Ohio-263, 2011 WL 287801, ¶ 12, quoting Burnside .

{¶ 17} Hensgen claims the trial court erred by denying his motion to suppress because the officers' entrance into the garage was improper since he was "incapable of giving permission" due to his then current, unresponsive state. In other words, Hensgen argues the only way the officers could lawfully enter into the garage was if he had personally given them consent to do so. However, it is well-established that law enforcement officers may enter into a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury. State v. Phuc Ky Luong , 12th Dist. Butler No. CA2011-06-110, 2012-Ohio-4520, 2012 WL 4480310, ¶ 23. That is exactly what occurred here. Therefore, at a minimum, Deputy Kramer, the first law enforcement officer to arrive at the scene, was lawfully permitted to enter into the garage where Hensgen had overdosed in order to assist EMS in saving Hengen's life. Had the opposite been true, Hensgen may very well have died as a result of his most recent heroin overdose.

{¶ 18} Hensgen also argues that even if there were exigent circumstances to allow Deputy Kramer to lawfully enter the garage to assist EMS in rendering him aid, "the necessity to enter the garage terminated once [he] was removed" from the scene. Yet, just as the trial court found, this ignores the fact that both Deputy Kramer and Deputy Spears testified that they observed in plain view syringe(s) and what they believed to be an active methamphetamine lab contained within a mason jar located on a small workbench next to where Hensgen had been receiving treatment from EMS while lawfully inside the garage. As recognized by the United States Supreme Court, "[o]fficers may seize evidence in plain view if they have not violated the Fourth Amendment in arriving at the spot from which the observation of the evidence is made * * *." Kentucky v. King , 563 U.S. 452, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011), paragraph one of the syllabus. Therefore, as there was no Fourth Amendment violation established in this case, the trial court's decision to apply the plain view exception to the warrant requirement was appropriate and does not constitute reversible error. Accordingly, having found no error in the trial court's decision denying Hensgen's motion to suppress, Hengsen's first assignment of error is without merit and overruled.

{¶ 19} Assignment of Error No. 2:

{¶ 20} THE DEFENDANT'S SENTENCE WAS EXCESSIVE.

{¶ 21} In his second assignment of error, Hensgen argues his five-year prison sentence was excessive. However, as this court has stated previously, a sentence that falls within the permissible statutory range is generally "not excessive and does not violate the constitutional prohibition against cruel and unusual punishment." State v. Bosman , 12th Dist. Butler No. CA2001-05-101, 2002 WL 42887, *1 (Jan. 14, 2002). Such is clearly the case here because Hensgen's five-year prison sentence falls within the statutory range for the crimes for which he was ultimately convicted and sentenced. See R.C. 2929.14(A). There is also nothing about Hensgen's five-year prison sentence that would render it so disproportionate to the offense that it would shock the moral sense of the community. State v. Accorinti , 12th Dist. Butler Nos. CA2012-10-205 and CA2012-11-221, 2013-Ohio-4429, 2013 WL 5533058, ¶ 21. Therefore, Hensgen's claim that his sentence was excessive lacks merit.

{¶ 22} The same is true for Hensgen's claim that his five-year prison sentence was not supported by the record. It is now well-established that this court may increase, reduce, or otherwise modify a sentence that by clear and convincing evidence is unsupported by the record. State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 7, citing R.C. 2953.08(G)(2). That is certainly not the case here for the record indicates Hensgen was on community control at the time he committed these offenses. The record also indicates Hensgen has a lengthy criminal record-eight misdemeanors and six felony convictions as an adult-that resulted in Hensgen serving nearly ten years in prison. This includes convictions for attempted aggravated burglary, burglary, two counts of receiving stolen property, two counts of aggravated burglary, and possession of a controlled substance. Hensgen was also, as the trial court stated, "incorrigible as a juvenile," a finding that resulted in Hensgen being adjudicated a delinquent for a felony theft offense.

{¶ 23} As noted above, Hensgen is an admitted heroin addict who was found overdosed next to an active methamphetamine lab, thus placing his mother, son, and many others in danger had there been an explosion. This was Hensgen's third overdose that week each of which required EMS to administer Narcan in order to save Hensgen's life. While this court is fully aware of the struggle of addiction, particularly to opioids, the record fully supports the trial court's decision to sentence Hensgen to an aggregate term of five years in prison, thereby rendering his arguments challenging his sentence without merit. Therefore, finding no error in the trial court's sentencing decision, Hensgen's second assignment of error is overruled.

{¶ 24} Assignment of Error No. 3:

{¶ 25} APPELLANT'S CONVICTIONS MUST BE REVERSED AS APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.

{¶ 26} In his third assignment of error, Hensgen argues he received ineffective assistance of counsel. We disagree.

{¶ 27} Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. State v. Hendrix , 12th Dist. Butler No. CA2012-05-109, 2012-Ohio-5610, 2012 WL 5995043, ¶ 14. In turn, to prevail on an ineffective assistance of counsel claim, Hensgen must show (1) that his trial counsel's performance fell below an objective standard of reasonableness and, (2) that he was prejudiced as a result. Strickland v. Washington , 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; State v. Burns , 12th Dist. Clinton No. CA2013-10-019, 2014-Ohio-4625, 2014 WL 5316515, ¶ 7. The failure to make an adequate showing on either prong is fatal to an ineffective assistance of counsel claim. State v. Zielinski , 12th Dist. Warren No. CA2010-12-121, 2011-Ohio-6535, 2011 WL 6382541, ¶ 50.

{¶ 28} As it relates to the first prong regarding his trial counsel's performance, Hensgen must show " 'that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.' " State v. Miller , 12th Dist. Clermont No. CA2011-04-028, 2012-Ohio-995, 2012 WL 764866, ¶ 27, quoting Strickland at 687, 104 S.Ct. 2052. On the other hand, as it relates to the second prong requiring a showing of prejudice, Hensgen must establish that, but for his trial counsel's errors, there is a reasonable probability that the result of trial would have been different. State v. Kinsworthy , 12th Dist. Warren No. CA2013-06-053, 2014-Ohio-1584, 2014 WL 1489250, ¶ 42. A "reasonable probability" is a probability that is sufficient to undermine confidence in the outcome. State v. Graves , 12th Dist. Clermont No. CA2015-03-022, 2015-Ohio-3936, 2015 WL 5671910, ¶ 31, citing Strickland at 694, 104 S.Ct. 2052.

{¶ 29} Hensgen initially argues he received ineffective assistance of counsel because his trial counsel failed to present a "better defense" at trial. Hensgen, however, has not provided this court with any suggestion of what that "better defense" would have entailed or how his trial counsel should have performed differently. Hensgen has also not offered any evidence that the jury's verdict would have been different but for his trial counsel's performance. Hensgen's argument is nothing more than a challenge to his trial counsel's trial strategy in defending him against the various drug charges upon which he was indicted. "The decision regarding which defense to pursue at trial is a matter of trial strategy, and trial strategy decisions are not the basis of a finding of ineffective assistance of counsel." State v. Kinsworthy , 12th Dist. Warren No. CA2013-06-053, 2014-Ohio-1584, 2014 WL 1489250, ¶ 43, citing State v. Murphy , 91 Ohio St.3d 516, 524, 747 N.E.2d 765 (2001). It is not this court's role to second guess trial counsel's strategic decisions. State v. Lloyd , 12th Dist. Warren Nos. CA2007-04-052 and CA200704053, 2008-Ohio-3383, 2008 WL 2635499, ¶ 61. Hensgen's argument otherwise is without merit.

{¶ 30} Hensgen also argues he received ineffective assistance of counsel since he "did not get a chance to develop a proper relationship with defense counsel" because he was represented by "a multitude of lawyers" throughout the trial court proceedings. However, outside his blanket claim of prejudice, Hensgen has not offered any evidence that the jury's verdict would have been different had he only been able to "develop a proper relationship" with any single attorney. Moreover, as this court has stated previously, while an indigent defendant has a right to competent counsel, "[t]he right to competent counsel does not require that a criminal defendant develop and share a 'meaningful relationship' with his attorney." State v. Cox , 12th Dist. Clermont No. CA99-02-016, 1999 WL 893607, *5 (Oct. 18, 1999), citing Morris v. Slappy , 461 U.S. 1, 13-14, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983). Therefore, because there is no requirement that counsel must develop and share a meaningful relationship with his or her clients in order to provide effective, competent representation, Hensgen has failed to establish a claim of ineffective assistance of counsel. Accordingly, finding no merit to either of Hensgen's arguments raised herein, Hensgen's third assignment of error is overruled.

{¶ 31} Judgment affirmed.

HENDRICKSON, P.J., and M. POWELL, J., concur.

      Narcan is a form of naloxone that is used for the emergency treatment of a known or suspected opioid overdose.

      The trial court initially appointed the public defender's office to represent Hensgen on June 6, 2016. However, the public defender's office had a conflict of interest that required it to withdraw its representation of Hensgen later that same day. One week later, on June 13, 2016, the trial court granted the public defender's motion to withdraw and appointed another attorney to represent Hensgen. Shortly thereafter, on June 23, 2016, a third attorney was designated as Hensgen's trial counsel, a position he held up to and including the October 11, 2016 hearing on Hensgen's motion to suppress. A fourth attorney was then substituted to represent Hensgen during his three-day jury trial and sentencing hearing.