[Cite as State v. Taylor,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 100315

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

MICHAEL P. TAYLOR DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-12-569276

BEFORE: Blackmon, J., Jones, P.J., and E.T. Gallagher, J.

RELEASED AND JOURNALIZED: July 17, 2014 -i-

ATTORNEY FOR APPELLANT

Joseph V. Pagano P.O. Box 16869 Rocky River, Ohio 44116

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

By: Gregory Mussman Karrie D. Howard Assistant County Prosecutors Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 PATRICIA ANN BLACKMON, J.:

{¶1} Appellant Michael P. Taylor appeals his convictions, sentence, and

classification as a Tier III sexual offender. Taylor assigns the following errors for our

review:

I. The trial court erred when it denied appellant’s motion for acquittal under Crim.R. 29 because the state failed to present sufficient evidence to establish beyond a reasonable doubt the elements necessary to support the convictions.

II. Appellant’s convictions are against the manifest weight of the evidence.

III. Appellant was deprived of due process and a fair trial in violation of his state and federal constitutional rights when the trial court allowed a representative from victim impact to stand by a witness/victim during her trial testimony over appellant’s objection.

IV. The trial court erred by denying appellant’s motion for mistrial and for providing an inadequate curative instruction during trial.

V. Appellant’s sentence is contrary to law and constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution.

VI. The trial court erred by instructing the jury that it could find appellant to be a sexual offender over appellant’s objection.

VII. The trial court erred by ordering appellant to pay costs.

{¶2} Having reviewed the record and pertinent law, we affirm in part, reverse in

part, and remand for resentencing. The apposite facts follow.

{¶3} On March 12, 2013, the Cuyahoga County Grand Jury indicted Taylor on

four counts of rape with sexually violent predator specifications attached, three counts of kidnapping with sexual motivation and sexual violent predator specifications attached,

one count of gross sexual imposition, and one count of intimidation of a crime witness.

Taylor pleaded not guilty to the charges at his arraignment, and after several pretrials, a

jury trial commenced.

Jury Trial

{¶4} At trial, the state presented the testimony of nine witnesses including E.W.,1

who was 17 at the time of trial. E.W. testified that Taylor is her first cousin, the son of

her Uncle Mike, and was a frequent visitor to her home.

{¶5} E.W. testified that around October 10-11, 2012, she stayed home from

school because she was feeling sick. E.W. stated that between 4:00-5:00 p.m., two of her

sisters, who were at home at the time, left to pick up one of the sister’s children from

daycare. As they were leaving, one of the sisters asked E.W. to come and lock the front

door. E.W. started to lock the door when Taylor entered and said something about

needing to use a phone charger.

{¶6} E.W. stated that moments after entering the house, Taylor began “touching,

feeling, and grabbing her.” As E.W. stated that despite her protest, Taylor continued to

touch her neck and grab her buttocks, as they fell against a chair and eventually landed on

the floor. As E.W. continued to protest, Taylor proceeded to pull down her pants,

inserted his finger and then his penis into her vagina. E.W. said that Taylor was wearing

1 The juveniles are referred to herein by their initials in accordance with this court’s established policy regarding non-disclosure of identities in all juvenile cases. In this case, because all the juveniles have the same initials, we will refer to the witnesses as E.W. and E.W.1. a condom, but she did not see when he put it on his penis. E.W. said that after a while,

Taylor got up, stood over her and just stared.

{¶7} E.W. stated that Taylor threatened to “do something” to her and her mother

if she told anyone, and then he left. E.W. immediately went to the bathroom, washed

between her legs with soap and water and then changed her clothes.

{¶8} E.W.’s sisters returned shortly after Taylor left. An hour later, she told

the younger of the two sisters that Taylor had raped her while they had gone to collect the

children from the daycare. E.W. stated that they telephoned their oldest sister, who did

not live with them, and she contacted the police.

{¶9} The police arrived shortly thereafter and questioned E.W. about the

incident. Later, E.W. was taken by ambulance to the hospital, where she was examined

by a Sexual Assault Nurse Examiner (“SANE”) and had a rape kit completed.

{¶10} E.W. also testified that approximately two weeks prior to the above incident,

she was at the home of her eldest sister when Taylor offered to drive her home. E.W.

stated that when they left, Taylor drove in a completely different direction from the route

to her house and eventually traveled to the city of Shaker Heights, Ohio. Taylor pulled

into a driveway, asked if E.W. wanted to smoke marijuana, began touching her private

area, and then pulled out his penis. Amidst her protest, Taylor kept touching her private

area and eventually inserted his finger into her vagina. Taylor eventually drove her home

after she kept pushing his hands away. {¶11} E.W.’s sister, E.W.1, testified that she and all her siblings’ first names begin

with the letter “E.” E.W.1 stated that she has known Taylor all her life and that he came

to their house on a regular basis. On the day in question, Taylor entered the house as she

and an older sister were leaving to get the children from daycare.

{¶12} E.W.1 testified that when they returned from the daycare, Taylor opened the

door for them and walked towards his vehicle that was parked in the driveway. When

E.W.1 entered the house, E.W. was in the bathroom with the door locked. When she

emerged, E.W. looked sad, was not talking, and was not upbeat. E.W.1 stated that

moments later, E.W. began crying and indicated that Taylor had raped her in their

absence. E.W.1 immediately called their older sister, who contacted the police.

{¶13} E.W.1 testified that Taylor raped her on three separate occasions between

2007 and 2008. E.W.1 testified that the first time, Taylor came down to the basement

where she was doing laundry, began kissing the back of her neck, then despite

protestations, pulled down her shorts and raped her. E.W.1 stated that Taylor pulled out

his penis, before ejaculating, when he heard a family friend coming down the steps.

{¶14} E.W.1 testified that the other two times, Taylor raped her in his truck when

her mother had asked her to go to the store with him. E.W.1 stated that she always

protested, but to no avail. E.W.1 told her mother, but Taylor always denied it, so nothing

was done.

{¶15} Detective Elaine Evans, assigned to Cleveland Police Department’s Sex

Crime and Child Abuse Unit, testified that she was assigned to the case the day after the incident. Detective Evans obtained statements from both E.W. and E.W.1, as well as

other family members. Detective Evans also spoke via telephone with Taylor and made

an appointment for him to come to her office, but he never appeared.

{¶16} Following the state’s case in chief, Taylor motioned the trial court for

acquittal, but it was denied, and Taylor proceeded to testify in his own defense, denying

all accusations. Taylor testified that on October 10, 2012, he had been drinking hard

liquor and smoking marijuana with his friend Kenyatta Hines. Taylor stated that he and

Hines drove to E.W.’s home to recharge his cell phone. Taylor said that he went in the

house, plugged in the phone, and went back outside to sit in the car. He stated that

approximately 15 minutes later, he went back to retrieve his phone, spoke briefly with

E.W., and then left.

{¶17} Hines testified that she had been drinking and smoking marijuana with

Taylor on the date in question. Hines stated that Taylor was only in the house with E.W.

for about two minutes when he went to place the phone on the charger. Hines testified

that when Taylor went to retrieve the phone, he came back out immediately.

{¶18} The jury found Taylor not guilty of counts one through four, but guilty of

counts five through nine. The jury also found Taylor guilty of the sexual motivation and

sexually violent predator specification.

{¶19} At sentencing, because some of the charges were allied offenses, the state

elected to proceed on counts five, seven, and nine. The trial court imposed an 11 year

sentence on count five, kidnapping with sexual motivation and sexually violent predator specification, 10-years-to-life on count seven, kidnapping with sexual motivation and

sexually violent predator specification, and 36 months on count nine, intimidation of a

crime victim or witness. The trial court ordered that Taylor serve the sentences

consecutively.

Sufficiency of Evidence

{¶20} In the first assigned error, Taylor argues that his motion for acquittal should

have been granted because the state failed to present sufficient evidence of the elements

necessary to support the convictions.

{¶21} Crim.R. 29 mandates that the trial court issue a judgment of acquittal where

the prosecution’s evidence is insufficient to sustain a conviction for the offense. Crim.R.

29(A) and sufficiency of evidence review require the same analysis. Cleveland v. Pate,

8th Dist. Cuyahoga No. 99321,

, citing State v. Mitchell, 8th Dist.

Cuyahoga No. 95095,

.

{¶22} A challenge to the sufficiency of the evidence supporting a conviction

requires the court to determine whether the prosecution has met its burden of production

at trial. State v. Givan, 8th Dist. Cuyahoga No. 94609,

, citing State v.

Thompkins,

,

,

. On review for

sufficiency, courts are to assess not whether the prosecution’s evidence is to be believed,

but whether, if believed, the evidence against a defendant would support a conviction.

{¶23} The 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. Vickers, 8th Dist.

Cuyahoga No. 97365,

, citing State v. Jenks,

,

(1991), paragraph two of the syllabus.

{¶24} In the instant case, the jury found Taylor guilty of one count each of rape,

gross sexual imposition, intimidation of a victim or witness, and two counts of

kidnapping. Because some counts were allied offenses of similar import, the state

elected that Taylor be sentenced on the two kidnapping charges and intimidation of victim

or witness.

{¶25} The kidnapping offense of which Taylor was found guilty is defined in R.C.

2905.01(A)(4) as follows: “No person, by force, threat, or deception, * * * shall remove

another from the place where the other person is found or restrain the liberty of the other

person * * * [t]o engage in sexual activity, as defined in R.C. 2907.01 * * * with the

victim against the victim’s will[.]”

{¶26} R.C. 2907.01 defines sexual activity as sexual conduct or sexual contact.

These are further defined respectively as “vaginal intercourse between a male and female;

anal intercourse, fellatio, and cunnilingus * * *; and * * * 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 * * *” and “any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a

breast, for the purpose of sexually arousing or gratifying either person.”

{¶27} At trial, E.W. testified that approximately two weeks prior to the incident

that eventually triggered the underlying case, Taylor, who had offered her a ride home,

drove instead to the city of Shaker Heights. E.W. testified that Taylor pulled into a

driveway, began touching E.W., against her will, in her private area, exposed his penis,

and inserted his finger into her vagina. E.W.’s testimony, if believed, satisfies the

elements of kidnapping as outlined above.

{¶28} Nonetheless, Taylor argues that the jury finding him not guilty of the rape in

that instance, but guilty of the kidnapping, is inconsistent. The verdicts in this case

might appear at first glance to be inconsistent because appellant was acquitted of rape, but

was found guilty of kidnapping with a sexual motivation.

{¶29} However, “in criminal cases, consistency between verdicts on several counts

of an indictment is unnecessary where the defendant is convicted on one or some counts,

and acquitted on others, and the conviction will generally be upheld, irrespective of its

rational incompatibility with the acquittal.” State v. Sailor, 8th Dist. Cuyahoga No. 83552,

, citing State v. Woodson,

,

(10th Dist. 1985).

{¶30} The kidnapping statute “punishes certain removal or restraint done with a

certain purpose and the eventual success or failure of the goal is irrelevant.” Thus, a

finding of not guilty on the rape charge “is not in any sense a finding that there was no intent or purpose to commit those crimes at the time of the abduction.” State v. Smith,

9th Dist. Summit Nos. 23464 and 23468,

, quoting State v.

Matthieu, 3d Dist. Mercer Nos. 10-02-04 and 10-02-05,

, ¶ 17.

{¶31} Taylor also asserts that there was insufficient evidence to support the guilty

verdicts for rape, kidnapping, and gross sexual imposition for the alleged incident on

October 10, 2012 against E.W.

{¶32} E.W. testified that after Taylor entered the house, he began touching her

neck and buttocks amidst her protestations. Taylor proceeded to kiss E.W.’s neck while

attempting to pull down her shorts. E.W. stated that Taylor overpowered her, they fell to

the ground, and he inserted his finger and then his penis into her vagina. E.W. said she

unsuccessfully tried to push him off and her pleas for him to stop went unheeded.

{¶33} After viewing the evidence in a light most favorable to the prosecution, the

above evidence, if believed, would support the conclusion that Taylor committed the

actions alleged. As such, any rational trier of fact would have found the essential elements

of the charges that led to his convictions proven beyond a reasonable doubt.

Consequently, the trial court did not err when it denied Taylor’s motion for acquittal.

Accordingly, we overrule the first assigned error.

Manifest Weight of the Evidence

{¶34} In the second assigned error, Taylor argues his convictions are against the

manifest weight of the evidence. {¶35} In State v. Wilson,

,

,

,

the Ohio Supreme Court addressed the standard of review for a criminal manifest weight

challenge, as follows:

The criminal manifest-weight-of-the-evidence standard was explained in State v. Thompkins (1997),

,

,

. In Thompkins, the court distinguished between sufficiency of the evidence and manifest weight of the evidence, finding that these concepts differ both qualitatively and quantitatively.

,

. The court held that sufficiency of the evidence is a test of adequacy as to whether the evidence is legally sufficient to support a verdict as a matter of law, but weight of the evidence addresses the evidence’s effect of inducing belief.

,

. In other words, a reviewing court asks whose evidence is more persuasive — the state’s or the defendant’s? We went on to hold that although there may be sufficient evidence to support a judgment, it could nevertheless be against the manifest weight of the evidence.

,

. “When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a ‘thirteenth juror’ and disagrees with the factfinder’s resolution of the conflicting testimony.”

,

, citing Tibbs v. Florida (1982),

,

,

.

Id. at ¶ 25.

{¶36} An appellate court may not merely substitute its view for that of the

factfinder, but must find that ‘“in resolving conflicts in the evidence, the factfinder clearly

lost its way and created such a manifest miscarriage of justice that the conviction must be

reversed and a new trial ordered.’” State v. Walker, 8th Dist. Cuyahoga No. 99239,

, quoting Thompkins at 387. Accordingly, reversal on manifest weight

grounds is reserved for “the exceptional case that the evidence weighs heavily against the

conviction.” Id. {¶37} Based on our resolution of the first assigned error where we found that

Taylor’s convictions were supported by sufficient evidence, we conclude that this is not

the exceptional case where the evidence weighs heavily against the convictions. Much to

the contrary, Taylor’s convictions are not against the manifest weight of the evidence.

{¶38} Nonetheless, Taylor argues he was convicted solely on inconsistent

testimony. Specifically, Taylor claims the lack of blood at the crime scene, the lack of

injuries on E.W., and the lack of his DNA on or inside E.W., supports his argument that

his convictions were against the manifest weight of the evidence.

{¶39} As an initial matter, there is no requirement, statutory or otherwise, that a

victim’s testimony be corroborated as a condition precedent to a rape conviction. State v.

Sklenar,

,

(9th Dist. 1991), citing State v. Gingell,

,

(1st Dist. 1982); State v. Love,

,

(1st Dist. 1988). “Sexual conduct” does not require proof of

trauma. State v. Barnes, 1st Dist. Hamilton Nos. C-790595, C-790622, and C-790636,

, 19 (Oct. 22, 1980). In other words, a physical injury is

not a condition precedent to a conviction for rape; not all rape victims exhibit signs of

physical injury. State v. Flowers, 10th Dist. Franklin No. 99AP-530,

(May 4, 2000), citing State v. Van Buskirk, 8th Dist. Cuyahoga No. 57800,

(Sept. 29, 1994).

{¶40} Although we review credibility when considering the manifest weight of the

evidence, we are cognizant that determinations regarding the credibility of witnesses and the weight of the testimony are primarily for the trier of fact. The trier of fact is best able

“to view the witnesses and observe their demeanor, gestures, and voice inflections, and

use these observations in weighing the credibility of the proffered testimony.” State v.

Kurtz, 8th Dist. Cuyahoga No. 99103,

, quoting Wilson,

,

,

, ¶ 24.

{¶41} After independently reviewing the entire record and weighing the

aforementioned evidence and all reasonable inferences, including the credibility of the

witnesses, we cannot say that the jury clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and a new trial ordered.

Accordingly, we overrule the second assigned error.

Victim Impact Representative

{¶42} In the third assigned error, Taylor argues he was denied a fair trial when the

trial court permitted a representative of the Victim Impact Unit to stand with E.W. while

she testified. In the instant case, the trial court asked E.W. whether she need the

representative to stand nearby and E.W. indicated she needed the assistance.

{¶43} Evid.R. 611 empowers a trial court with broad discretion in controlling the

mode and order of interrogating witnesses and presenting evidence “so as to (1) make the

interrogation and presentation effective for the ascertainment of the truth, (2) avoid

needless consumption of time, and (3) protect witnesses from harassment or undue

embarrassment.” Thus, a procedure implemented by a trial court to elicit testimony from a witness will not be disturbed on appeal absent a showing that the court abused its

discretion. State v. Johnson,

,

(5th Dist. 1986).

{¶44} A review of the record reveals that the trial court’s decision to ask E.W.

whether she wanted the representative from the Victim Impact Unit to stand nearby, after

E.W. began crying during cross-examination, neither diminished Taylor’s constitutional

right to confront his accuser nor prejudiced his right to a fair trial.

{¶45} Many courts have permitted a variety of methods to facilitate the

presentation of the testimony of the child-victim witness in cases of sexual assault or

abuse. In

the court held that it was neither a constitutional violation nor

an abuse of the trial court’s discretion to allow an eight-year-old victim to sit on the lap of

a relative during the presentation of the victim’s testimony. One court permitted a

five-year-old victim to sit on his father’s lap while testifying. State v. Barnhart, 12th Dist.

Clermont No. CA91-08-066,

(July 20, 1992). That court

also permitted an adult to sit beside a 13-year-old victim during the presentation of her

testimony. State v. Walton, 12th Dist. Clermont No. CA91-03-022,

(Nov. 4, 1991). Under this case law, Taylor’s contention that his rights

were violated fails.

{¶46} The victim was a minor testifying about being raped by her cousin and

conceivably testifying in a courtroom where other family members are present, some of

whom were possibly aligned against the minor. Accordingly, the court’s action was consistent with other cases involving a minor’s testimony. Consequently, we find no

prejudice to Taylor and overrule his third assigned error.

Denial of Motion for Mistrial

{¶47} In the fourth assigned error, Taylor argues the trial court erred by failing to

grant a mistrial because the curative jury instruction was inadequate.

{¶48} The decision whether to grant or deny a motion for mistrial lies within the

sound discretion of the trial court and will not be reversed absent a showing of an abuse

of discretion. State v. Willis, 8th Dist. Cuyahoga No. 99735,

, citing

State v. Garner,

,

(1995). An “abuse of discretion”

implies that the court’s attitude is unreasonable, arbitrary or unconscionable. Blakemore

v. Blakemore,

,

(1983).

{¶49} A mistrial should not be ordered in a criminal case “merely because some

error or irregularity has intervened, unless the substantial rights of the accused or the

prosecution are adversely affected.” State v. Reynolds,

,

(2d Dist. 1988). Rather, the granting of a mistrial is necessary only when “a

fair trial is no longer possible.” State v. Franklin,

,

(1991).

{¶50} In the instant case, the record reveals that in its opening statement, the state

declared that Taylor “took his cousin’s virginity” and during its direct examination of

E.W., the state asked questions about E.W.’s virginity. On cross-examination, defense counsel asked questions about E.W.’s virginity. Following defense counsel’s questions,

the trial court instructed the jury that this line of questioning was improper.

{¶51} Thereafter, defense counsel indicated that it was the state who had opened

the door to elicit testimony regarding E.W.’s virginity, but the trial court’s statement

during his cross-examination gave the jury the impression that defense counsel might

have done something wrong. Therefore, defense counsel moved for a mistrial. The trial

court denied the motion and indicated that it would issue a curative instruction to the jury.

The trial court issue the following pertinent instructions:

Ladies and gentlemen of the jury, before we proceed, earlier in the trial there was some discussion with reference to [E.W.] * * * and some of those questions were made with reference to whether or not she had prior — engaged in prior sexual activity.

The court then stopped this line of questioning, indicating to counsel that the court thought that line of questioning was improper and cited the rule that said that.

The court will inform you now that any questioning with reference to that was improper, whether or not it was done by the government or the defense.

Tr. 464.

{¶52} Curative instructions have been recognized as an effective means of

remedying errors or irregularities that occur during trial. State v. Williams, 8th Dist.

Cuyahoga No. 94242,

, citing State v. Ghaster, 8th Dist. Cuyahoga No.

91576,

. A jury is presumed to follow the instructions, including

curative instructions, given it by a trial judge.

citing State v. Henderson,

,

(1988). {¶53} Under these circumstances, and in light of the evidence presented in support

of Taylor’s convictions, we cannot find that the line of questions and the resulting

discussion, without more, materially prejudiced Taylor or interfered with his right to a fair

trial. We find, therefore, that the trial court did not abuse its discretion in failing to order a

mistrial following this remark. Accordingly, we overrule the fourth assigned error.

Consecutive Sentences

{¶54} In the fifth assigned error, Taylor argues the trial court’s imposition of

consecutive sentences was contrary to law and amounted to cruel and unusual

punishment.

{¶55} We review consecutive sentences using the standard set forth in R.C.

2953.08. State v. Nia, 8th Dist. Cuyahoga No. 99387,

. That

statute provides two grounds for an appellate court to overturn the imposition of

consecutive sentences: (1) the sentence is “otherwise contrary to law”; or (2) the appellate

court, upon its review, clearly and convincingly finds that the record does not support the

sentencing court's findings under R.C. 2929.14(C)(4). Id. at ¶ 16; R.C. 2953.08(G)(2).

{¶56} R.C. 2929.14(C)(4) requires a trial court to make three distinct findings

when imposing consecutive sentences. The trial court must first find the sentence is

“necessary to protect the public from future crime or to punish the offender.” Next, the

trial court must find that consecutive sentences are “not disproportionate to the

seriousness of the offender’s conduct and to the danger the offender poses to the public.”

Finally, the trial court must find the existence of one of the three statutory factors set forth in R.C. 2929.14(C)(4)(a)-(c). The failure to make these findings is contrary to law. Id. at ¶

19.

{¶57} In this case, a review of the record demonstrates that the trial court made the

statutorily mandated findings as outlined above. Upon imposing consecutive sentences,

the trial court stated :

This court does find that consecutive sentences are necessary to protect the public from future crimes. The court further finds that based upon defendant’s attitude when he testified, the way he presented himself during his testimony, the lack of remorse that he showed, the lack of respect that he obviously has for women, this court finds that consecutive sentences are necessary to punish the offender. The court further finds that consecutive sentences are not disproportionate to the danger the offender poses to the public. And the court further finds that the offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crimes by the offender.

Tr. 888-889. {¶58} Here, the trial court found that the sentence was “necessary to protect the

public from future crime or to punish the offender.” It also found that consecutive

sentences were “not disproportionate to the seriousness of Taylor’s conduct and to the

danger the offender poses to the public.”

{¶59} Finally, the trial court further found that this was one of the worst offenses

of its kind, because the Taylor and E.W. were related, that E.W. has been hindered in her

involvement with society, and Taylor threatened E.W. if she told anyone. Thus, the trial

court made all the findings required by R.C. 2929.14(C)(4) before imposing consecutive

sentences. {¶60} To the extent that Taylor is arguing that the trial court did not consider

proportionality and consistency as required by R.C. 2929.11(B) in imposing consecutive

sentences, we find no merit.

{¶61} R.C. 2929.11(A) provides that a felony sentence shall be reasonably

calculated to achieve two “overriding purposes” of felony sentencing: (1) “to protect the

public from future crime by the offender and others,” and (2) “to punish the offender

using the minimum sanctions that the court determines accomplish those purposes * * *.”

In order to achieve these purposes, the sentence imposed for a felony must be

“commensurate with and not demeaning to the seriousness of the offender’s conduct and

its impact upon the victim, and consistent with sentences imposed for similar crimes

committed by similar offenders.” R.C. 2929.11(B). A court that imposes a sentence for

a felony has the discretion to determine the most effective way to comply with the

purposes and principles of sentencing outlined in the statute. R.C. 2929.12(A). In

exercising that discretion, however, the trial court must consider the seriousness,

recidivism, and other mitigating factors set forth in R.C. 2929.12. Id.

{¶62} While we note that the trial court must consider the principles and purposes

of sentencing as well as the mitigating factors as outlined above, the court is not required

to use particular language or make specific findings of its consideration of those factors.

State v. Jones, 8th Dist. Cuyahoga No. 99759,

, citing State v.

Carman, 8th Dist. Cuyahoga No. 99463,

. In fact, R.C. 2929.11 and

2929.12 are not fact-finding statutes, and consideration of the appropriate factors can be presumed unless the defendant affirmatively shows to the contrary.

citing State v.

Stevens, 1st Dist. Hamilton No. C-130278,

. Nevertheless, as

previously noted, the record reflects that the court considered Taylor’s criminal record

and addressed the seriousness of Taylor’s actions. We are therefore not persuaded by

Taylor’s argument in this regard.

{¶63} In light of the foregoing findings and the record before us, we cannot clearly

and convincingly find that the trial court’s imposition of consecutive sentences is contrary

to law. Accordingly, we overrule the fifth assigned error.

Sexually Violent Predator Specification

{¶64} In the sixth assigned error, Taylor argues the trial court erred when it

instructed the jury, over his objection, that they could find him to be a sexually violent

predator. Specifically, Taylor contends that the indictment improperly charged him with

sexually violent predator specifications when he had no prior conviction for a sexually

violent offense.

{¶65} Taylor relies on State v. Smith,

,

,

, in support of his position. In Smith, the court held that a “conviction of a

sexually violent offense cannot support the specification that the offender is a sexually

violent predator as defined in R.C. 2971.01(H)(1) if the conduct leading to the conviction and the sexually violent predator specification are charged in the same indictment.”

at

syllabus. However, Taylor’s reliance on Smith is misplaced.

{¶66} Prior to April 29, 2005, R.C. 2971[.01](H)(1), defined a sexually violent

predator as “a person who has been convicted of or pleaded guilty to committing, on or

after January 1, 1997, a sexually violent offense and is likely to engage in the future in

one or more sexually violent offenses.” State v. Wagers, 12th Dist. Preble No.

CA2009-06-018,

, ¶ 28. The current version of the statute provides:

“Sexually violent predator means a person who, on or after January 1, 1997, commits a

sexually violent offense and is likely to engage in the future in one or more sexually

violent offenses.” R.C. 2971.01(H)(1).

{¶67} We have previously interpreted the General Assembly’s purpose in revising

R.C. 2971.01(H)(1) to allow for the inclusion of a sexually violent predator specification

in the indictment of one being charged for the first time with a sexually violent offense.

State v. Green, 8th Dist. Cuyahoga No. 96966,

. See also State v.

Stansell, 8th Dist. Cuyahoga No. 100604,

.

{¶68} Given the revisions to the statute and the General Assembly’s explicit

purposes in enacting them, the present law allows for the inclusion of a sexually violent

predator specification in the indictment of one being charged for the first time with a

sexually violent offense. Consequently, the trial court did not err when it instructed the

jury that it could find Taylor guilty of the sexually violent predator specification.

Accordingly, we overrule the sixth assigned error. Court Costs

{¶69} In the seventh assigned error, Taylor argues that the trial court erred when it

did not impose costs at the sentencing hearing, but ordered him to pay court costs in the

journal entry. In support of his argument, appellant cites to the Ohio Supreme Court’s

decision in State v. Joseph,

,

,

.

{¶70} In Joseph, the court held that it is reversible error under Crim.R. 43(A) for

the trial court to impose costs in its sentencing entry when it did not impose those costs in

open court at the sentencing hearing. Id. at ¶ 22. The court reasoned that the defendant

was denied the opportunity to claim indigency and to seek a waiver of the payment of

court costs before the trial court because the trial court did not mention costs at the

sentencing hearing. Id. The remedy in such a situation is a limited remand to the trial

court for the defendant to seek a waiver of court costs. Id. at ¶ 23; State v. Mays, 2d Dist.

Montgomery No. 24168,

.

{¶71} In its brief to this court, the state maintains that the trial court in fact

imposed costs in open court. Our review of the record reveals that the trial court

mentioned costs twice during Taylor’s sentencing hearing. In relevant part, the trial

court stated:

On the kidnapping, * * *. The sentence of the Court is [$]250 in costs, 11 years at the Lorain Correctional Institution. * * *. On Count 9, intimidation of a witness, the sentence of the court is [$]250 in costs, * * *.

Tr. at 888.

However, in its journal entry, the trial court stated in pertinent part as follows: The court hereby enters judgment against the defendant in an amount equal to the costs of this prosecution.

Journal Entry, July 29, 2013.

{¶72} During oral argument, this court queried whether the state would concede.

The state was reluctant, but admitted that it had failed to present evidence relevant to the

cost of prosecution. Consequently, because of the discrepancy in the trial court’s

pronouncement at the sentencing hearing with that in the journal entry, we sustain the

assigned error, vacate the cost contemplated by the journal entry, and remand this matter

to the trial court to allow Taylor to move the court for a waiver of court costs pronounced

at the sentencing hearing.

{¶73} Judgment affirmed in part, reversed in part, and the cause remanded to allow

appellant to seek a waiver of court costs and to correct the July 29, 2013 journal entry.

It is ordered that appellant and appellee share the costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment

into execution. The defendant’s conviction having been affirmed, any bail pending

appeal is terminated. Case remanded to the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

PATRICIA ANN BLACKMON, JUDGE LARRY A. JONES, SR., P.J., CONCURS (WITH ATTACHED SEPARATE OPINION); EILEEN T. GALLAGHER, J., CONCURS AND CONCURS WITH ATTACHED OPINION

LARRY A. JONES, SR., P.J., CONCURRING:

{¶74} I concur with the majority’s holding in this case but write separately to

address the third assignment of error and my concern with the trial court’s decision to sua

sponte offer to have a representative from the Victim Impact Unit stand next to E.W.

during her testimony. Taylor argues on appeal that the trial court’s actions could have

elicited unfair sympathy from the jury towards E.W. and deprived him of a fair trial.

{¶75} The transcript reflects that shortly into E.W.’s direct examination, the

prosecutor asked her, “Are you okay?” E.W. responded, “Yeah. Yes.” The court

questioned, “Ms. [E.W.], do you want the lady from victim impact to come stay with

you?” E.W. replied, “Yeah.” Defense counsel objected. The trial court called a

sidebar and defense counsel argued that allowing the victim representative to stand next

to E.W. would “corroborate” and “give credence to” E.W.’s “story.” The trial court

disagreed, reasoning that the victim representative was not going to testify; thus, she was

going to support E.W., not “support” E.W.’s “story.”

{¶76} The cases the majority cites involve much younger children; E.W. was 17

years old when she testified. Moreover, it is interesting to note that in State v. Walton,

12th Dist. Clermont No. CA91-03-022,

(Nov. 4, 1991), it

was only after the court recessed and convened with counsel in chambers, that the court allowed an adult to sit next to the 13-year-old victim during her testimony. Id. at *5.

Here, the court held a brief sidebar before summarily overruling defense counsel’s

objections.

{¶77} Although Evid.R. 611 empowers the trial court with broad discretion to

conduct its courtroom in its own fashion, a better course of action would have been for

the trial court to have taken a recess so that E.W. could have composed herself and

received support from the victim representative outside the presence of the jury.

{¶78} Instead, the trial court’s decision to offer to have the victim representative

come stand next to E.W. during her testimony gave the appearance that the victim

representative was improperly vouching for her credibility.

{¶79} However, pursuant to Crim.R. 52(A), I would find the error harmless

because there was overwhelming evidence to support the guilty verdicts. See State v.

Webb,

,

(1994) (holding that a nonconstitutional

error is harmless when there is substantial other evidence to support the guilty verdict.)

Therefore, I would not reverse based on the trial court’s decision to allow the victim

representative, over defense counsel’s objection, to stand next to the victim while she

testified.