[Cite as State v. Boyd,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :

Appellee, : CASE NO. CA2020-01-012

: OPINION - vs - 8/24/2020 :

JOHNANTHONY TYLER BOYD, :

Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2019-06-0876

Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government Services Center, 315 High St., 11th Floor, Hamilton, Ohio 45011, for appellee

Michele Temmel, 6 S. Second St., #305, Hamilton, Ohio 45011, for appellant

S. POWELL, J.

{¶ 1} Appellant, Johnanthony Tyler Boyd, appeals the sentence imposed by the

Butler County Court of Common Pleas after he pled guilty to single counts of rape and

pandering sexually oriented matter involving a minor. For the reasons outlined below, we

affirm the trial court's decision.

{¶ 2} On July 2, 2019, the Butler County Grand Jury returned a 19-count indictment Butler CA2020-01-012

against Boyd charging him with nine counts of illegal use of a minor in nudity-oriented

material or performance, nine counts of pandering sexually oriented matter involving a

minor, and one count of rape. According to the bill of particulars, the charges arose after

Boyd created photographs and video recordings of the victim, O.B., his 11-year-old niece,

depicting her breasts and vagina. The bill of particulars alleges Boyd also created,

recorded, photographed, or filmed the 11-year-old victim engaging in fellatio with him. The

bill of particulars alleges these crimes occurred on July 9, 2018 and September 25, 2018 in

Hamilton, Butler County, Ohio.

{¶ 3} On December 3, 2019, Boyd, a 20-year-old recent high school graduate,

entered a plea agreement and pled guilty to one count of pandering sexually oriented matter

involving a minor in violation of R.C. 2907.322(A)(1), a second-degree felony carrying a

maximum two to eight year prison term, and one count of rape in violation of R.C.

2907.02(A)(1)(b), a first-degree felony carrying a maximum term of 10 years to life in prison.

As provided by the state, the facts underlying these two offenses showed that Boyd did,

with knowledge of the character of the material or performance involved, record O.B., his

11-year-old niece, engaging in fellatio with him. Boyd then kept the video recording stored

on his cellphone under the name, "Image_0img_0285.mov." When asked if he admitted

the facts provided by the state were an accurate account of what happened between himself

and the victim, Boyd stated, "Yes, Your Honor."

{¶ 4} On January 7, 2020, the trial court held a sentencing hearing and sentenced

Boyd to an aggregate term of 15 years to life in prison; 10 years to life in prison for rape to

run consecutively to a five-year prison term for pandering sexually oriented matter involving

a minor. The trial court also ordered Boyd to pay court costs, designated Boyd a Tier III

sex offender, and notified Boyd that he would be subject to a mandatory five-year

postrelease control term if he was ever released from prison.

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{¶ 5} When ordering Boyd's sentences to run consecutively, the trial court noted

that there were "two distinct crimes, committed at the same time, but with two different

mindsets for two different purposes, seeking two sets of gratifications of some sort, I

suppose." After some discussion with the parties, the trial court then stated:

So that's the lay of the land as to where we are. So we've got two separate crimes. We've got the possibility [that they were] conducted with two separate mindsets, two separate goals, two separate sets of criminal intent: one, for the immediate sexual gratification that the sex act itself gives one; and the second one, for some kind of lingering enjoyment that one might have for himself and/or that one might get by displaying these [videos he recorded of the victim engaging in fellatio with him] to other people. Some people enjoy doing that. They find enjoyment in it.

{¶ 6} The trial court then stated that it needed to determine whether the "second

phase of that enjoyment," i.e., the "lingering enjoyment" that Boyd may have had in

continuing "to view himself, this degradation of his niece," "keeping that," and having the

ability "to look at [it]," as well as the possibility of "sharing it with buddies," saying, "look,

look what I got her to do," was worth its own prison sentence. Finding that "second phase

of that enjoyment" did require its own, separate prison sentence, the trial court stated:

I think that just saying, well, the videoing of this, keeping the video, you know, me looking at it, getting my jollies later on, showing it to my buddies, or whatever, whatever he was going to do, to say that just kind of goes away, I think would demean the seriousness of the conduct. So I do believe that, based upon that, that I do need to give consecutive sentences.

{¶ 7} Concluding, the trial court then made the necessary consecutive sentence

findings required by R.C. 2929.14(C)(4). Specifically, as the trial court stated:

And as I have given you consecutive sentences, there is a finding to make. I do find that consecutive sentences are necessary to protect the public from future crime and also necessary to punish the offender adequately, and they are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public.

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And I also make the additional finding that the harm – and I've tried to distinguish the two different acts that constitutes these two crimes. I do make the additional finding that the harm with these two things together is so great or unusual that a single term does not adequately reflect its seriousness, and also that it does not adequately reflect the Defendant's conduct.

The trial court then incorporated its consecutive sentence findings within its judgment of

conviction entry.

{¶ 8} Boyd now appeals the trial court's sentencing decision, raising the following

single assignment of error for review.

{¶ 9} THE TRIAL COURT ERRED TO THE PREJUDICE OF MR. BOYD WHEN IT

SENTENCED HIM TO CONSECUTIVE SENTENCES IN THE OHIO DEPARTMENT OF

REHABILITATION AND CORRECTIONS.

{¶ 10} In his single assignment of error, Boyd argues the trial court erred by ordering

his 10-years-to-life prison sentence for rape to run consecutively to his five-year prison

sentence for pandering sexually oriented matter involving a minor. We disagree.

{¶ 11} "[A]n appellate court does not review the sentencing court's decision for an

abuse of discretion." State v. Scott, 12th Dist. Clermont Nos. CA2019-07-051 and CA2019-

07-052,

, citing State v. Marcum,

, 2016-Ohio-

1002, ¶ 10. Rather, as this court first stated in State v. Crawford, 12th Dist. Clermont No.

CA2012-12-088,

, the standard of review set forth in R.C. 2953.08(G)(2)

shall govern all felony sentences. Id. at ¶ 6. Pursuant to that statute, this court may

increase, reduce, "or otherwise modify a sentence that is appealed under this section or

may vacate the sentence and remand the matter to the sentencing court for resentencing,"

if this court 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;

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

{¶ 12} "R.C. 2953.08(G)(2) is unambiguous and definite."

. "R.C.

2953.08(G)(2)(a) does not authorize an appellate court to review any and all findings of the

trial court made during sentencing." (Emphasis sic.) State v. Sallis, 12th Dist. Clermont

No. CA2019-12-092,

. Rather, "and according to the plain language

of the statue, the only findings this court has authority to review are those the trial court

makes specific to R.C. 2929.13(B) or (D), R.C. 2929.14(B)(2)(e) or (C)(4), or R.C.

2929.20(I)." Id. at ¶ 7. Therefore, "because R.C. 2953.08(G)(2)(a) specifically mentions a

sentencing judge's findings made under R.C. 2929.14(C)(4) as falling within a court of

appeals' review, the General Assembly plainly intended R.C. 2953.08(G)(2)(a) to be the

exclusive means of appellate review of consecutive sentences." State v. Gwynne,

,

. This is because "an appellate court has only the

authority to review sentences in the manner proscribed by statute." Sallis at ¶ 12, citing

State v. Williams,

,

.

{¶ 13} Pursuant to R.C. 2929.14(C)(4), a trial court must engage in a three-step

analysis and make certain findings before imposing consecutive sentences. State v. Blair,

12th Dist. Butler No. CA2014-01-023,

, ¶ 52. First, the trial court must find

a consecutive sentence is necessary to protect the public from future crime or to punish the

offender. State v. Dillon, 12th Dist. Madison No. CA2012-06-012,

.

Second, 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.

State v. Heard, 12th Dist. Butler Nos. CA2014-02-024, CA2014-02-025, and CA2014-05-

118,

. Third, the trial court must find that at least one of the three

circumstances listed in R.C. 2929.14(C)(4)(a) thru (c) applies. State v. Liming, 12th Dist.

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Clermont Nos. CA2018-05-028 and CA2018-05-029,

. Those three

circumstances are:

(a) The offender committed one or more of the multiple offenses while 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.

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

{¶ 14} Boyd argues it was improper for the trial court to run his sentences

consecutively because: (1) there is "nothing on the record that would indicate Mr. Boyd

would even commit future crime(s);" (2) he has a "very limited record;" (3) he is a recent

high school graduate, "a hard worker and a volunteer" at a local food pantry; and (4) he led

a "fairly crime free life" prior to these charges being brought. Boyd also argues that it was

improper for the trial court to run his sentences consecutively because the "offenses

happened on the same day with the same victim." Therefore, according to Boyd, because

"[a] single sentence of life in prison without the possibility of parole for ten years does reflect

the seriousness of the crime," a sentence of 10-years-to-life in prison "is more than an

adequate punishment for a young man with hardly any record."

{¶ 15} Despite Boyd's claims, we find the record contains extensive evidence to

support the trial court's consecutive sentence findings made under R.C. 2929.14(C)(4). As

noted above, Boyd victimized his 11-year-old niece by video recording her engaging in

fellatio with him. Boyd then kept and stored the video recording of him sexually abusing his

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niece on his cellphone. Although the child was just 11 years old, the record indicates that

Boyd was the second member of the victim's family to have sexually abused her, a fact that

Boyd knew at the time he made the video recording. The record also indicates that Boyd

lied to investigators when initially confronted with the allegations against him. This

significantly downplays Boyd's claims he made at sentencing alleging he had done a

considerable job in "trying to take responsibility" and "own what he did" following his arrest.

The record further indicates Boyd had a criminal history, although limited, stemming from

when he was a juvenile.

{¶ 16} "[A]s long as the reviewing court can discern that the trial court engaged in

the correct analysis and can determine that the record contains evidence to support the

findings, consecutive sentences should be upheld." State v. Bonnell,

,

. Such is the case here. Therefore, while it may be true that Boyd

pled guilty and was ultimately sentenced for acts that were committed on the same day and

against the same victim, we nevertheless find the record fully supports the trial court's

consecutive sentence findings under R.C. 2929.14(C)(4). This remains true even though

the record indicates the likelihood of recidivism is low. Accordingly, finding no error in the

trial court's decision ordering Boyd's 10-years-to-life prison sentence for rape to run

consecutively to his five-year prison sentence for pandering sexually oriented matter

involving a minor, Boyd's single assignment of error lacks merit and is overruled.

{¶ 17} Judgment affirmed.

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

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