[Cite as State v. Jessen,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT AUGLAIZE COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 2-18-16

v.

DAVID L. JESSEN, OPINION

DEFENDANT-APPELLANT.

Appeal from Auglaize County Common Pleas Court Trial Court No. 2017-CR-172

Judgment Affirmed

Date of Decision: March 18, 2019

APPEARANCES:

Jose M. Lopez for Appellant

Benjamin R. Elder for Appellee Case No. 2-18-16

ZIMMERMAN, P.J.

{¶1} Defendant-appellant, David L. Jessen (“Jessen”), appeals the October

3, 2018 journal entry – orders on sentence of the Auglaize County Court of Common

Pleas finding him guilty of two counts of gross sexual imposition. On appeal, Jessen

asserts that: 1) the trial court erred in ordering Jessen to serve consecutive

sentences, and 2) that the trial court’s imposition of consecutive sentences is

excessive and disproportional. For the reasons that follow, we affirm the judgment

of the trial court.

{¶2} On December 14, 2017, the Auglaize County Grand Jury indicted

Jessen on four counts of gross sexual imposition, each in violation of R.C.

2907.05(A)(4) and being felonies of the third-degree, arising out of his sexual

contact with a minor child that occurred at or between the 1st day of August, 2017

and the 2nd day of September, 2017. (Doc. No. 1).

{¶3} On December 18, 2017, Jessen appeared for arraignment and entered

pleas of not guilty. (Doc. No. 10).

{¶4} On July 23, 2018, Jessen withdrew his pleas of not guilty and pled

guilty, under a negotiated plea agreement with the State, to Counts One and Two,

as indicted. (Doc. No. 52, 53). In exchange for his guilty pleas, the State agreed to

dismiss Counts Three and Four of the indictment. The State further agreed to join

the defendant pursuant to R.C. 2953.08(D) in recommending that Jessen be placed

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on community control by the trial court subject to the following conditions: 1)

“same terms and conditions as in 15CR25”1, 2) that Jessen be notified that upon a

violation of the conditions of community control that he may be sentenced to serve

“sixty (60) months” on Count One and on Count Two for a total possible maximum

term of incarceration of one hundred and twenty (120) months, 3) that a victim

impact statement (“VIS”) be prepared by the Auglaize County Victim Advocate;

and 4) that Jessen be registered as a Tier II sex offender. (Doc. No. 52). The trial

court accepted Jessen’s guilty pleas, found him guilty, dismissed Counts Three and

Four, and ordered the preparation of a presentence investigation report (“PSI”).

(Doc. No. 53).

{¶5} Relevant to this appeal, during Jessen’s change of plea hearing, the

State gave a recitation of the facts relative to Counts One and Two which included

two separate incidents of over-the-clothing sexual contact where Jessen admitted to

touching the minor child’s buttocks with his fingers. (July 23, 2018 Tr. at 14-15,

PSI). Both incidents occurred while the minor child was seated on Jessen’s lap

pretending to drive his vehicle. (Id.). During the plea hearing, Jessen admitted to

touching the minor child’s buttocks for his own sexual gratification. (July 23, 2018

Tr. at 13-14). Also during the plea hearing, the trial court noted Jessen’s previous

1 We note that the conditions of probation for Case No. 15CR25 are not a part of the record of the instant Case.

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conviction for child endangerment which was a result of a negotiated plea2

involving facts similar to the present case. (Id.). Jessen admitted to the trial court

that the prior incident involved multiple minor children victims wherein Jessen had

skin-to-skin sexual contact with the minor children’s buttocks. (Id.)

{¶6} Ultimately, on October 3, 2018, the trial court sentenced Jessen to 30

months in prison on Count One and 24 months in prison on Count Two of the

indictment. (Doc. No. 63). The trial court further ordered Jessen to serve the

sentences consecutively for an aggregate term of 54 months in prison. (Id.).

Further, the trial court found Jessen to be a Tier II sex offender and ordered him to

register for a period of 25 years with in-person verification every 180 days. (Id.).

The trial court also ordered the imposition of a ten thousand dollar ($10,000.00) fine

as to Count One and a ten thousand dollars ($10,000.00) fine on Count Two, for a

total fine of twenty thousand dollars ($20,000.00), plus court costs. (Id.).

{¶7} On October 22, 2018, Jessen timely filed a notice of appeal. (Doc. No.

90). He raises two assignments of error for our review.

Assignment of Error No. I

The trial court erred in ordering Appellant to serve consecutive sentences.

2 The conviction for child endangerment, a misdemeanor of the first degree, arose out of a Bill of Information that was presented to the Auglaize County Common Pleas Court amid a trial on the original indictment in Case Number 15CR25 from a 2014 incident. In that case, Jessen had previously been indicted on one count of rape and four counts of gross sexual imposition. (October 3, 2018 Tr. at 17, 24; PSI).

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Assignment of Error No. II

The trial court’s imposition of consecutive sentences is excessive and disproportional and constitutes an abuse of discretion.

{¶8} For ease of discussion and because appellant’s assignments of error are

interrelated, we will discuss them together.

Consecutive Sentences

{¶9} In his assignments of error, Jessen argues that the trial court erred by

imposing consecutive sentences. Specifically, he argues that “the sentencing court

failed to consider the “proportionality” of imposing consecutive sentences in

relation to the seriousness of Defendant’s conduct and the danger to the public.”

(Appellant’s Brief at 6). Jessen also argues that the trial court “failed to cite with

particularity the seriousness of Defendant’s conduct and why Defendant posed a

substantial danger to the public necessitating consecutive sentences.” (Id. at 6,

citing State v. Stayer, 3d Dist. Defiance No. 4-05-06,

, ¶ 8 citing

State v. Wirgau, 3d Dist. Logan No. 8-5-04,

, quoting State

v. Brice, (March 29, 2000, 4th Dist. No. 99CA24). Jessen’s final argument is that

the imposition of consecutive sentences was harsh, disproportional, and not

supported by the record. (Id. at 8).

Standard of Review

{¶10} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence

“only if it determines by clear and convincing evidence that the record does not

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support the trial court’s findings under relevant statutes or that the sentence is

otherwise contrary to law.” State v. Nienberg, 3d Dist. Putnam Nos. 12-16-15 and

12-16-16,

, quoting State v. Marcum,

,

. Clear and convincing evidence is that “‘which will produce

in the mind of the trier of facts a firm belief or conviction as to the facts sought to

be established.’” Id. at ¶ 22, quoting Cross v. Ledford,

(1954),

paragraph three of the syllabus.

{¶11} “Except as provided in * * * division (C) of section 2929.14, * * * a

prison term, jail term, or sentence of imprisonment shall be served concurrently with

any other prison term, jail term, or sentence of imprisonment imposed by a court of

this state, another state, or the United States.” R.C. 2929.41(A).

{¶12} Revised Code 2929.14(C) provides:

(4) If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses to the public and if the court also finds any of the following:

(a) The offender committed one or more of the multiple offenses which the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised code, or was under post-release control for a prior offense.

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(b) At least two of the multiple offenses were committed as party of one or more courses of conduct, and the harm caused by two or more of the multiple offense so committed was so great or unusual that no single prison term for any of the offenses committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the course of conduct adequately reflects the seriousness of the offender’s conduct.

(c) The offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.

{¶13} Revised Code 2929.14(C)(4) requires the trial court to make specific

findings on the record when imposing consecutive sentences. State v. Hites, 3d Dist.

Hardin No. 6-11-07,

; State v. Peddicord, 3d Dist. Henry No.

7-12-24,

. Specifically, the trial court must find: (1)

consecutive sentences are necessary to either protect the public or punish the

offender; (2) the sentences would not be disproportionate to the offense committed;

and (3) one of the factors in R.C. 2929.14(C)(4)(a), (b), or (c) applies. Id.;

{¶14} The trial court must state the required findings at the sentencing

hearing when imposing consecutive sentences and incorporate those findings into

its sentencing entry. State v. Sharp, 3d Dist. Putnam No. 12-13-01, 2014-Ohio-

4140, ¶ 50, citing State v. Bonnell,

,

. A

trial court “has no obligation to state reasons to support its findings” and is not

“required to give a talismanic incantation of the words of the statute, provided that

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the necessary findings can be found in the record and are incorporated into the

sentencing entry.”

.

Analysis (Consecutive Sentences)

{¶15} In this case, the trial court engaged in a lengthy discussion with Jessen

at the plea change hearing, and again, at the sentencing hearing. (July 23, 2017 Tr.

at 1-37; October 3, 2018 Tr. 1-26). At the sentencing hearing, the trial court noted

its consideration of the presentence investigation report, the victim impact

statement, the statements of the victim’s mother in open court, and Jessen’s updated

psychosexual evaluation. (October 3, 2018 Tr. at 16-18). Thereafter, the trial court

sentenced Jessen noting that it had also considered the factors in 2929.14(C) by

referencing the statute verbatim. Specifically, the trial court stated as follows:

the Court FINDS further that CONSECUTIVE services are necessary to protect the public from future crime and to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses to the public…

(October 3, 2018 Tr. at 18). The trial court, then, went on to support its findings by

finding that Jessen was on probation for child endangerment at the time he

committed the offenses. (Id.). Further, the trial court noted Jessen’s criminal history

necessitated consecutive sentences to protect the public from future criminal activity

in conformity with R.C. 2929.14(C)(4)(c). (Id.).

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{¶16} The record before us reflects that the trial court made the appropriate

findings to impose consecutive sentences in this matter. Notably, the trial court is

not required to explain the reasons for its findings on the record, so long as the

findings are properly made and supported by the record. Nevertheless, the trial court

did engage in a detailed discussion of its reasoning for imposing consecutive

sentences. Thus, we conclude this portion of Jessen’s argument is without merit.

{¶17} Jessen next argues that the trial court failed to consider

“proportionality” in relation to the seriousness of Jessen’s conduct and the danger

to the public. We find no merit to this argument. The trial court determined that

Jessen’s previous offense was virtually identical to the case at bar. The trial court

also relayed personal regret of its approval of the plea agreement concerning

Jessen’s prior offense which (seemingly) allowed Jessen to repeat, and to

(seemingly) adapt his criminal behavior, so as to make it less likely it would be

discovered.3 (Id.).

{¶18} Moreover, we note that the minor child in the instant case reported

twenty incidents involving sexual contact (by Jessen) to his erogenous zones

including nineteen incidents relating to his buttocks and one incident involving his

groin area. (PSI). Hence, Jessen’s assertion that there was a “low level of sexual

3 After Jessen’s conviction on the child endangerment charge where he had made skin-to-skin sexual contact with two other minor male children, he adapted his behavior to digital manipulation of the same area, but over-the-clothing of the minor male child. This adaptation permitted Jessen to make what could appear to be innocent explanations for Jessen’s conduct.

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contact” with a minor child is misplaced, since, no level of “sexual contact” with a

minor child as defined under R.C. 2907.01 is without harm. And, in the instant case,

the harm this victim suffered is in the record and quantifiable.4

{¶19} Furthermore, the minor child’s mother also suffered harm. (Id.). She

expressed concerns regarding her minor child’s mental health and is no longer

comfortable in her home. (Id.). The minor child has a younger male sibling whom

the mother now fears could be victimized in the same manner. (Id.).

{¶20} Therefore, based upon the record before us, there is no indication that

the punishment in this case is grossly disproportionate to the injuries perpetrated on

the minor child victim in this matter. Accordingly, we cannot find that the trial

court’s imposition of consecutive sentences was clear and convincingly contrary to

law. Therefore, Jessen’s first and second assignments of error as they relate to

consecutive sentences are overruled.

Allied Offenses

{¶21} In Jessen’s first assignment of error, he also contends that since the

plea agreement was silent as to allied offenses of similar import and because the

4 The minor child is afraid to be alone with men or to enter a public restroom without his mother present. (VIS). He is afraid to go outside to play due to the proximity of his mother’s home the Jessen’s residence. (Id.; October 3, 2018 Tr. at 13). The mother also reported that the minor child is now introverted when he used to be “outgoing” and “chatty”. (VIS). He is having difficulty concentrating in class after having been an overachiever. (Id.).

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wording listed in the indictment as to Counts One and Two, is identical,5 both Count

One and Count Two should have merged for the purpose of sentencing. Thus,

Jessen argues that the imposition of consecutive sentences is plain error.

(Appellant’s Brief at 7, citing State v. Underwood,

(2010); see

also, State v. Brown,

(2008) and State v. McGuire,

(1997)). Further, Jessen asserts that the trial court was obligated pursuant

to R.C. §2941.25 to determine that the offenses were allied, and if so, he could only

be convicted of one offense. (Id. at 7).

Standard of Review

{¶22} “Whether offenses are allied offenses of similar import is a question

of law that this Court reviews de novo.” State v. Frye, 3d Dist. Allen No. 1-17-30,

; see also, State v. Ruff,

,

.

{¶23} R.C. 2941.25, Ohio’s multiple-count statute, states:

(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one. (B) Where the defendant’s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or

5 Specifically, Counts One and Two read as follows: that at or between the 1st day of August, 2017, and the 2nd day of September, 2017, at Auglaize County, Ohio, David L. Jessen did have sexual contact with another, not the spouse of the offender and the other person is less than thirteen years of age, whether or not the offender knows the age of that person. Said act is a felony of the third degree in violation of Ohio Revised Code Title 29 § 2907.05(A)(4).

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information may contain counts for all such offenses, and the defendant may be convicted of all of them.

{¶24} The Supreme Court directs us to apply a three-part test to determine

whether a defendant can be convicted of multiple offenses:

As a practical matter, when determining whether offenses are allied offenses of similar import within the meaning of R.C. 2941.25, courts must ask three questions when defendant’s conduct supports multiple offenses: (1) Were the offenses dissimilar in import or significance? (2) Were they committed separately? and (3) Were they committed with separate animus or motivation? An affirmative answer to any of the above will permit separate convictions. The conduct, the animus, and the import must all be considered.

State v. Earley,

,

, ¶ 12, quoting State v. Ruff,

,

, ¶ 12 and citing Ruff at paragraphs one, two,

and three of the syllabus.

{¶25} Applying the Ruff allied-offense analysis, we conclude that Jessen’s

convictions for gross sexual imposition are not allied offenses of similar import.

Because it is dispositive, we address only the dissimilar-import question of the

three-part test.

Analysis (Allied Offenses)

{¶26} “As explained in Ruff, offenses are of dissimilar import ‘when the

defendant’s conduct constitutes offenses involving separate victims or if the harm

that results from each offense is separate and identifiable.’” Id. at ¶ 77, quoting Ruff

at paragraph two of the syllabus.

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At its heart, the allied-offense analysis is dependent upon the facts of a case because R.C. 2941.25 focuses on the defendant’s conduct. The evidence at trial * * * will reveal whether the offenses have similar import. When a defendant’s conduct victimizes more than one person, the harm for each person is separate and distinct, and therefore, the defendant can be convicted of multiple counts.

Ruff at ¶ 26.

{¶27} It is uncontroverted that Jessen admitted to touching the minor child’s

buttocks with his fingers over clothing for his own sexual gratification, at least

twice. (July 23, 2018 Tr. at 13-14; PSI). The record reveals that Jessen’s sexual

contact with the victim occurred in two separate vehicles. (Id. at 14-15; Id.).

Moreover, during Jessen’s plea hearing, the trial court, specifically, addressed

Jessen by asking “how many times did you do this?” (July 23, 2018, Tr. at 14 ¶ 2)

to wit Jessen responded “I believe twice.” (Id. at 14 ¶ 3). Afterward, the trial court

listened to the State’s recitation of the facts which detailed two separate incidents

occurring in two separate vehicles. (Id. at 14 ¶ 20-24). The trial court, again,

inquired as to whether the contact was two separate incidents. (Id. at 14 ¶ 25). The

State responded affirmatively. (Id. at 15 ¶ 1). Then, the trial court, once more,

addressed Jessen as to the accuracy that there were two separate incidents. (Id. at

15 ¶ 2). Jessen responded with “that’s accurate, Sir.” (Id. at 15 ¶ 2).

{¶28} Under the facts presented, there was no need for the trial court to

address allied offenses of similar import at the sentencing hearing, given that, Jessen

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and the State both agreed that two separate offenses were committed by Jessen as

to Count One and Count Two.

{¶29} Therefore, the trial court did not commit error in failing to find that

Count One and Count Two are allied offenses of similar import due to Jessen’s

admission that two separate identifiable incidents of gross sexual imposition took

place. Therefore, Jessen’s first assignment of error as it relates to allied offenses of

similar import is overruled.

{¶30} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

Conclusion

{¶31} For the foregoing reasons Jessen’s assignments of error are overruled

and the judgment of the Auglaize County Common Pleas Court is affirmed.

Judgment Affirmed

SHAW and PRESTON, J.J., concur.

/jlr

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