[Cite as State v. Behrendt,

.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

State of Ohio Court of Appeals No. L-15-1135

Appellee Trial Court No. CR0201402531

v.

Steven Behrendt DECISION AND JUDGMENT

Appellant Decided: March 11, 2016

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and Charles R. McDonald, Assistant Prosecuting Attorney, for appellee.

Neil S. McElroy, for appellant.

*****

SINGER, J.

{¶ 1} Appellant, Steven Behrendt, appeals from his conviction in the Lucas

County Court of Common Pleas for pandering sexually oriented matter involving a

minor, a violation of R.C. 2907.322(A)(5) and (C). We affirm. {¶ 2} In 2009, agents from the Ohio Bureau of Criminal Investigations,

investigating child pornography, traced a suspicious internet protocol address to

appellant’s home computer. Armed with a search warrant, appellant’s computer was

seized. It was found to contain downloaded child pornography files.

{¶ 3} Appellant was originally indicted for two felonies. The first charge was

illegal use of minor in a nudity-oriented material or performance, a felony of the fifth

degree. The second charge resulted in his conviction. Pursuant to a plea deal, the first

charge was dismissed and appellant entered a plea of guilty pursuant to North Carolina v.

Alford,

,

,

(1970). to one count of pandering

sexually oriented matter involving a minor, a fourth degree felony.

{¶ 4} He was sentenced to 16 months in prison and classified a Tier II sex

offender. Appellant now appeals setting forth the following assignments of error:

I. The trial court failed to consider the seriousness and recidivism

factors of R.C. § 2929.12 and, therefore, the 16-month sentence is clearly

and convincingly contrary to law.

II. Mandatory sex offender classifications under Senate Bill 10

constitute cruel and unusual punishment where the classification is grossly

disproportionate to the nature of the offense and character of the offender.

{¶ 5} In his first assignment of error, appellant contends that his sentence is

contrary to law because the court failed to consider the seriousness and recidivism factors

of R.C. 2929.12. We disagree.

2. {¶ 6} We review felony sentences under the two-prong approach set forth in R.C.

2953.08(G)(2). R.C. 2953.08(G)(2) provides that an appellate court may increase,

reduce, modify, or vacate and remand a disputed sentence if it clearly and convincingly

finds either of the following:

(a) That the record does not support the sentencing court’s findings

under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of

section 2929.14, or division (I) of section 2929.20 of the Revised Code,

whichever, if any, is relevant;

(b) That the sentence is otherwise contrary to law.

{¶ 7} We initially note that appellant’s 16-month sentence is within the statutory

range for a felony of the fourth degree. R.C. 2929.14(A)(4).

{¶ 8} The R.C. 2929.12 seriousness factors include: whether the physical or

mental injury was worsened “because of the physical or mental condition or age of the

victim”; whether the offense caused serious physical, psychological, or economic harm to

the victim; whether the defendant held a public office or position of trust in the

community, and the offense related to that office or position; whether the defendant’s

position obliged him to prevent the offense or bring offenders to justice; whether the

defendant used his position to facilitate the offense or is likely to influence the future

conduct of others; whether the defendant’s relationship with the victim facilitated the

offense; whether the defendant committed the offense for hire or as a part of an organized

criminal activity; whether the defendant was motivated by prejudice based on race, ethnic

3. background, gender, sexual orientation, or religion; and whether, for specified offenses,

the offense was committed by a household member “in the vicinity of one or more

children,” and the defendant or his victim is a parent or custodian of at least one of those

children.

{¶ 9} The R.C. 2929.12 recidivism factors include: whether there are previous

adjudicated delinquencies or criminal convictions, whether the defendant has not

responded favorably to previous sanctions or attempts at rehabilitation, whether the

defendant refuses to acknowledge a drug- or alcohol-abuse problem or refuses treatment,

and whether the defendant shows no “genuine remorse.” Along with “any other relevant

factors,” factors that indicate that the defendant is not likely to commit future crimes are

an absence of delinquency adjudications or criminal convictions, a law-abiding life for a

significant number of years before the current offense, an unlikelihood that the

circumstances under which the offense was committed will recur, and genuine remorse.

{¶ 10} Obviously, not all of these factors will apply to the facts of every case. As

for the seriousness factors, only one is applicable to this fact scenario. Specifically,

“[w]hether the physical or mental injury was worsened because of the physical or mental

condition or age of the victim; whether the offense caused serious physical,

psychological, or economic harm to the victim.” While the victims were not personally

known to the court or probably even to appellant, it is clear from the record that the court

considered this factor. In response to appellant’s comment that he viewed child

pornography for “shock value,” the court stated: “[I] would suppose maybe the shock

4. value is what those little children are facing when that kind of conduct is placed upon

them.” The court went on to state on the record:

There are two age groups that our law requires to recognize that they

need protection, the elderly and little children, minors, they need special

protection. Relative to children. Their innocence, their fragile physical

stature as well as their inability to physically and mentally protect

themselves makes children extremely vulnerable to victimization.

{¶ 11} As for the recidivism factors, the court specifically noted on the record

appellant’s age, 58, and the fact that he has a clean criminal record. The court pointed

out that appellant placed some blame on his daughter for downloading a program on his

computer he did not fully understand. The court did not find appellant to be remorseful

stating “[appellant] did not take any responsibility for his actions * * *.”

{¶ 12} The record supports our conclusion that the court properly considered the

R.C. 2929.12 factors, and appellant’s first assignment of error is found not well-taken.

{¶ 13} In his second assignment of error, appellant contends that mandatory sex

offender classifications amount to cruel and unusual punishment. Appellant asked us to

hold this issue in abeyance pending the Supreme Court of Ohio’s decision in State v.

Blankenship, a case that had not been decided at the time appellant’s brief was filed.

{¶ 14} However, Blankenship was decided on November 12, 2015, with the court

holding:

5. [t]hat the registration and address-verification requirements for Tier

II offenders under R.C. Chapter 2950 do not constitute cruel and unusual

punishment in violation of either the Eighth Amendment to the United

States Constitution or Article I, Section 9 of the Ohio Constitution. The

Tier II registration requirements do not meet the high burden of being so

extreme as to be grossly disproportionate to the crime or shocking to a

reasonable person. State v. Blankenship, Slip Opinion No. 2015-Ohio-

4624, ¶ 38.

{¶ 15} Appellant’s second assignment of error is found not well-taken.

{¶ 16} The judgment of the Lucas County Court of Common Pleas is affirmed.

Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

6. State v. Behrendt C.A. No. L-15-1135

Arlene Singer, J. _______________________________ JUDGE Thomas J. Osowik, J. _______________________________ James D. Jensen, P.J. JUDGE CONCUR. _______________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.

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