[Cite as State v. Denoyer,

.]

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

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 1-20-34

v.

ANTHONY J. DENOYER, OPINION

DEFENDANT-APPELLANT.

Appeal from Allen County Common Pleas Court Trial Court No. CR 2019 0435

Judgment Affirmed

Date of Decision: March 22, 2021

APPEARANCES:

William T. Cramer for Appellant

Jana E. Emerick for Appellee Case No. 1-20-34

SHAW, J.

{¶1} Defendant-appellant, Anthony Denoyer (“Denoyer”), brings this appeal

from the August 11, 2020 judgment of the Allen County Common Pleas Court

sentencing him to an aggregate indefinite prison term of a minimum of 32 years to

a maximum of 36 years. On appeal, Denoyer argues that 3 of the 4 felonious assault

charges to which he pled guilty should have merged for the purposes of sentencing,

that the record did not support maximum prison terms on each of the felonious

assault convictions, and that the record did not support consecutive sentences.

Background

{¶2} Denoyer is the father of G.M., who was born in August of 2019. On

October 29, 2019, police were contacted by St. Rita’s Medical Center with regard

to G.M. having multiple skull fractures, a brain bleed, several fractured ribs, and a

fractured femur. The injuries were life-threatening. An investigation established

that G.M. was in Denoyer’s care when she was injured, and Denoyer later made

admissions that he caused the injuries.

{¶3} On December 12, 2019, Denoyer was indicted on four counts of

felonious assault in violation of R.C. 2903.11(A)(1), all felonies of the second

degree, and four counts of endangering children in violation of R.C. 2919.22(B)(1),

all felonies of the second degree. Two of the felonious assault counts in the

indictment, specifically counts 1 and 3, carried specifications pursuant to R.C.

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2941.1426 alleging that the felonious assaults perpetrated by Denoyer against G.M.

resulted in “permanent disabling harm,” and that G.M. was less than ten years old.

G.M. was, in fact, less than three months old.1 Denoyer originally pled not guilty

to the charges.

{¶4} On June 22, 2020, Denoyer entered into a written negotiated plea

agreement wherein he agreed to plead guilty to the four counts of felonious assault

in the indictment. In exchange, the State agreed to dismiss the four endangering

children charges, the two “permanent disabling harm” specifications attached to two

of the felonious assault counts, and a separate pending criminal case against

Denoyer that alleged Denoyer had committed, inter alia, grand theft of a motor

vehicle.2

{¶5} A change-of-plea hearing was held wherein the plea agreement was

recited to the trial court. At the time that the State recited the agreement to the trial

court, the State emphasized that it would be arguing at sentencing, specifically

contending that the felonious assault counts would not merge due to the disparate

injuries to various parts of the infant’s body, due to some of the injuries being in

different stages of healing, and due to Denoyer’s admission to five to seven acts of

1 Six of the eight counts—three felonious assaults and three endangering children—alleged that the incidents occurred on or about October 28, 2019. The remaining two counts—one felonious assault and one endangering children—alleged that the incidents occurred on or about October 22, 2019, through October 28, 2019. 2 The record from the separate trial court case that was dismissed pursuant to the plea agreement is not before us, thus we take this information from the written plea agreement and from statements made at the plea hearing.

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violence against the child. After the plea agreement was recited, the trial court

conducted a Crim.R. 11 hearing wherein Denoyer knowingly, intelligently, and

voluntarily waived his rights and entered his pleas pursuant to the agreement.

Sentencing was set for a later date.

{¶6} Prior to the sentencing hearing the State filed a brief outlining its

argument that the felonious assault counts should not merge. First, the State noted

that Denoyer had given two interviews in this matter. During the first interview,

when Denoyer was confronted with G.M.’s injuries, Denoyer claimed that he had

“blackouts” and was told by others that he got violent during those episodes. He

also claimed that he tripped with G.M. once and she hit her head on a table. Further,

he stated that a month prior he picked G.M. up too hard and broke her rib, hearing

it pop. In addition, he admitted to striking G.M. in the head on purpose, describing

five episodes where he struck her to keep her awake.

{¶7} In a second interview, Denoyer admitted to repeatedly abusing G.M.

since her birth. He admitted to beating or assaulting G.M. five to seven times with

the most recent being on October 28, 2019. He admitted to punching her, shaking

her, and squeezing her so hard that he heard ribs pop. He also admitted to picking

up G.M. by the leg when she was “fussing” causing the femur to fracture. Further,

he admitted to punching G.M.’s head hard enough to make her head “soft.” (Doc.

89).

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{¶8} The State’s sentencing brief then detailed the medical evidence related

to G.M. that would have been presented at trial as follows.

Upon examination of GM, Dr. Jennifer T[.] of Nationwide Children’s Hospital in Columbus described various rib fractures as acute (within seven days [of] presentation), and non acute or healing. Two of eighteen rib fractures were acute and occurred within the seven day period of the 10-29-19 admission. The sixteen older rib fractures (symptomatic) cannot be more specifically dated but would have occurred in the ten week period from the date of birth (8-5-19) to seven days before the date of admission on 10-29-19, or 10-22-19. The older fractures were variously callused and in stages of healing, as evidenced on a CT scan.

A chest CT scan was completed, and a reconstruction image was also completed. Nationwide doctors would opine that the fractures were consistent with the abdominal squeezing related to them, as admitted by the Defendant. The imaging is available through Children’s Health Information Management and can be enhanced to pinpoint fractures by radiologist Dr. Cody Y[.]

Dr. T[.] noted two types of cranial injuries. One of the injuries was shearing, caused by shaking or violent acceleration/deceleration. (Note-Defendant has admitted shaking victim on multiple occasions). The other multiple skull injuries described in the records are due to external trauma, as traumatic force applied to the outside of GM’s skull. This differentiation leads to the conclusion of two or more separate types of acts individually inflicting injury to GM’s skull.

The femur injury is located near a growth plate, in a location Dr. T[.] attributes to ‘aggressive’ infliction of trauma unique to abuse of a child under one year of age and having occurred within seven days of observation. This resulted from pulling and twisting.

One of [the] CT images of GM’s skull shows extensive fracturing. Another shows herniation (expulsion) of some brain

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tissue through the fracture site. Neuro-radiologist Jerome R[.] would at trial present enhanced imagery of the injuries, interpreting and articulating various CT views. Dr. T[.] agrees that the injuries were life threatening, and that GM’s breathing was destabilized.

(Doc. No. 89).

{¶9} On August 10, 2020, a sentencing hearing was held. The State and

defense counsel presented arguments related to merger. The trial court then

indicated it had read the briefs on the matter and the pre-sentence investigation.

Ultimately the trial court determined that the felonious assault counts did not merge

for the purposes of sentencing. The trial court then sentenced Denoyer to maximum

consecutive prison terms for an aggregate prison term of 32-36 years. A judgment

entry memorializing Denoyer’s sentence was filed August 11, 2020. It is from this

judgment that Denoyer appeals, asserting the following assignments of error for our

review.

Assignment of Error No. 1 The trial court [violated] the Double Jeopardy clauses of the federal and state constitutions by failing to merge the first three counts of felonious assault under R.C. 2941.25.

Assignment of Error No. 2 By clear and convincing evidence the record does not support the imposition of maximum prison terms.

Assignment of Error No. 3 By clear and convincing evidence the record does not support consecutive sentences.

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First Assignment of Error

{¶10} In his first assignment of error, Denoyer argues that the trial court

erred by failing to merge three of his felonious assault convictions for purposes of

sentencing. More specifically, he contends that the indictment alleged that three of

the felonious assaults occurred “on or about October 28, 2019” and thus they were

part of the same course of conduct.

Standard of Review

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

of law that this Court reviews de novo.’ ” State v. Jessen, 3d Dist. Auglaize No. 2-

18-16,

, quoting State v. Frye, 3d Dist. Allen No. 1-17-30,

; see generally State v. Ruff,

,

.

Relevant Authority

{¶12} Revised Code 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 information may contain counts for all such offenses, and the defendant may be convicted of all of them.

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{¶13} In State v. Ruff,

,

, the Supreme

Court of Ohio held the following with regard to determining allied offenses:

1. In determining whether offenses are allied offenses of similar import within the meaning of R.C. 2941.25, courts must evaluate three separate factors—the conduct, the animus, and the import.

2. Two or more offenses of dissimilar import exist within the meaning of R.C. 2941.25(B) when the defendant’s conduct constitutes offenses involving separate victims or if the harm that results from each offense is separate and identifiable.

3. Under R.C. 2941.25(B), a defendant whose conduct supports multiple offenses may be convicted of all the offenses if any one of the following is true: (1) the conduct constitutes offenses of dissimilar import, (2) the conduct shows that the offenses were committed separately, or (3) the conduct shows that the offenses were committed with separate animus.

The Supreme Court in Ruff explained:

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 or during a plea or sentencing hearing 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. Also, a defendant’s conduct that constitutes two or more offenses against a single victim can support multiple convictions if the harm that results from each offense is separate and identifiable from the harm of the other offense. We therefore hold that two or more offenses of dissimilar import exist within the meaning of R.C. 2941.25(B) when the defendant’s conduct constitutes offenses involving separate victims or if the harm that results from each offense is separate and identifiable.

Ruff,

at ¶ 26.

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Analysis

{¶14} In this case, Denoyer argues that three of his convictions for felonious

assault should have merged for the purposes of sentencing. For reference,

Denoyer’s felonious assault convictions were in violation of R.C. 2903.11(A)(1),

which reads, “No person shall knowingly * * * Cause serious physical harm to

another or to another’s unborn[.]”

{¶15} On appeal, Denoyer argues that there was no evidence that the

felonious assaults against G.M. were committed separately. To support his claim,

he cites the fact that the indictment for three of the felonious assault charges alleged

the “same conduct against the same victim on the same date of October 28, 2019.”

(Appt.’s Br. at 7). Denoyer argues that the prosecution did not present evidence

indicating that separate acts occurred on the given “date” at the plea hearing or at

the sentencing hearing, thus the trial court erred by failing to merge the three

felonious assault convictions related to the acts “on” October 28, 2019.

{¶16} At the outset, we note that the indictment alleged that three of the

felonious assault charges to which Denoyer pled guilty occurred on or about

October 28, 2019. The prosecution later explained that given G.M.’s extremely

young age, it was difficult to discern exactly when some of the injuries occurred.

{¶17} Nevertheless, contrary to Denoyer’s argument, the prosecution

presented multiple sentencing briefs detailing the disparate injuries to G.M., and

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their origin according to medical evidence. The prosecution’s sentencing brief

specifically separated the four felonious assaults into four different injury

categories. The first felonious assault was related to “numerous blows to the head

of GM by the Defendant on 10-28-19, resulting in multiple skull fractures.” (Doc.

No. 88). The second felonious assault arose “from a shearing injury from shaking,

or violent acceleration or deceleration to GM by the Defendant on or about 10-28-

19.” (Id.) The third felonious assault was related to a femur injury and two broken

ribs inflicted by Denoyer during the period of October 22, 2019 to October 28, 2019.

Finally, the fourth felonious assault was related to G.M. having sixteen broken ribs.

{¶18} At the sentencing hearing, the prosecution reiterated the points from

its written sentencing memoranda, adding that Denoyer had acknowledged at least

five to seven different violent acts against the infant. Further, the prosecution

emphasized that the distinct injuries were caused by separate acts that would have

been identified through the medical testimony such as striking, squeezing, shaking,

etc.

{¶19} In State v.

, the Supreme Court of Ohio defined

what “constitutes two or more offenses against a single victim,” by stating that there

can be multiple convictions “if the harm that results from each offense is separate

and identifiable from the harm of the other offense.” Here the record reflects

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separate identifiable harm to G.M. coming from separate identifiable acts of

Denoyer, i.e. striking, shaking, squeezing.

{¶20} Moreover, even if some of these acts did occur on the same day, that

does not make them allied as each act was distinct. Further, they were perpetrated

against an infant less than three months old, so the knowing potential of serious

physical harm would be in each identifiable act of striking, shaking, and squeezing.

As we have held previously, separate assaults, even in close temporal proximity,

can lead to separate convictions. See State v. Mejia, 3d Dist. Union No. 14-19-28,

.

{¶21} Based on the record before us we cannot find that the trial court erred

by finding that the felonious assault convictions did not merge for purposes of

sentencing. Therefore, Denoyer’s first assignment of error is overruled.

Second Assignment of Error

{¶22} In his second assignment of error, Denoyer argues that the record does

not support the imposition of maximum 8-year prison terms for each of his felonious

assault convictions.

Standard of Review

{¶23} 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

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

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otherwise contrary to law.” 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.

Relevant Authority

{¶24} “ ‘The trial court has full discretion to impose any sentence within the

authorized statutory range, and the court is not required to make any findings or give

its reasons for imposing maximum or more than [a] minimum sentence[ ].’ ” State

v. Castle, 2d Dist. Clark No. 2016-CA-16,

, quoting State v.

King, 2d Dist. Clark No. 2012-CA-25,

; State v. White, 3d

Dist. Marion No. 9-19-32,

. Nevertheless, when exercising its

sentencing discretion, a trial court must consider the statutory policies that apply to

every felony offense, including those set out in R.C. 2929.11 and R.C. 2929.12.

State v. Kerns, 3d Dist. Logan No. 8-18-05,

, citing State v.

Mathis,

,

, ¶ 38.

{¶25} Revised Code 2929.11 provides that sentences for a felony shall be

guided by the overriding purposes of felony sentencing: “to protect the public from

future crime by the offender and others, to punish the offender, and to promote the

effective rehabilitation of the offender using the minimum sanctions that the court

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determines accomplish those purposes without imposing an unnecessary burden on

state or local government resources.” R.C. 2929.11(A). In order to comply with

those purposes and principles, R.C. 2929.12 instructs a trial court to consider

various factors set forth in the statute relating to the seriousness of the offender’s

conduct and to the likelihood of the offender’s recidivism. R.C. 2929.12(A)-(E).

Analysis

{¶26} In this case, Denoyer was convicted of four counts of felonious assault

in violation of R.C. 2903.11(A)(1), all second degree felonies. Pursuant to R.C.

2929.14(A)(2)(a), the prison term for a second degree felony “shall be an indefinite

prison term with a stated minimum term selected by the court of two, three, four,

five, six, seven, or eight years and a maximum term that is determined pursuant

to section 2929.144 of the Revised Code[.]” Under R.C. 2929.144(B)(1), the

maximum prison term for a qualifying felony of the second degree shall be equal to

the “minimum term imposed * * * plus fifty per cent of that term.” Here, Denoyer

was sentenced to serve four maximum, indefinite prison terms with a stated

minimum of 8 years. The maximum was stated to be 12 years, though that only

applies to one of the four counts. These prison terms are within the appropriate

statutory range and they are compliant with the relevant statutes; therefore the

maximum prison terms are presumptively valid. State v. Maggette, 3d Dist. Seneca

No. 13-16-06,

.

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{¶27} Moreover, at the sentencing hearing, the trial court referenced the

requisite sentencing statutes, specifically indicating that it had balanced the

seriousness and recidivism factors under R.C. 2929.12. The trial court’s findings

were incorporated into its judgment entry, further indicating it had considered R.C.

2929.11 and 2929.12. Importantly, “[a] trial court’s statement that it considered the

required statutory factors, without more, is sufficient to fulfill its obligations under

the sentencing statutes.” Maggette,

, citing State v. Abrams,

8th Dist. Cuyahoga No. 103786,

, citing State v. Payne,

,

, ¶ 18. Thus not only was the sentence in this case

presumptively valid, the trial court also indicated that it considered the appropriate

statutes. Under these circumstances, we cannot find that Denoyer demonstrated that

his sentence was clearly and convincingly contrary to law.

{¶28} Furthermore, to the extent that Denoyer seeks to have this Court

modify his sentence, we emphasize that the Supreme Court of Ohio recently

clarified an appellate court’s review a felony sentence under R.C. 2953.08(G)(2).

State v. Jones, --- Ohio St.3d ---,

.3 The Supreme Court of

Ohio determined that R.C. 2953.08(G)(2)(a) “clearly does not provide a basis for an

3 Because Jones was decided after the parties submitted their appellate briefs in this case, neither party has had the opportunity to address its applicability. However, Jones “does not change the law” but instead “clarifies existing law and precedents.” State v. Roberts, 5th Dist. Richland No. 2020 CA 0035, 2021-Ohio- 90, ¶ 81, fn. 2. Therefore, we elect to apply Jones to the instant case without the benefit of supplemental briefing.

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appellate court to modify or vacate a sentence if it concludes that the record does

not support the sentence under R.C. 2929.11 and R.C. 2929.12 because * * * R.C.

2929.11 and R.C. 2929.12 are not among the statutes listed in the provision.” Id. at

¶ 31. Thus, the Supreme Court of Ohio concluded that an appellate court may not

modify or vacate a felony sentence based upon a finding by clear and convincing

evidence that the record does not support the trial court’s “findings” under R.C.

2929.11 and R.C. 2929.12. Id. at ¶ 42 (“Nothing in R.C. 2953.08(G)(2) permits an

appellate court to independently weigh the evidence in the record and substitute its

judgment for that of the trial court concerning the sentence that best reflects

compliance with R.C. 2929.11 and 2929.12.”).

{¶29} In Jones, the Supreme Court of Ohio also confirmed that R.C.

2953.08(G)(2)(b) does not provide a mechanism for an appellate court to modify or

vacate a felony sentence based upon a finding that the sentence is “contrary to law”

because it clearly and convincingly is not supported by the record under R.C.

2929.11 and R.C. 2929.12. Id. at ¶ 32-39. “As a result of the Supreme Court’s

holding in Jones, when reviewing felony sentences that are imposed solely after

considering the factors in R.C. 2929.11 and R.C. 2929.12, we shall no longer

analyze whether those sentences are unsupported by the record. We simply must

determine whether those sentences are contrary to law.” State v. Dorsey, 2d Dist.

Montgomery No. 28747,

. “A sentence is contrary to law when

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it does not fall within the statutory range for the offense or if the trial court fails to

consider the purposes and principles of felony sentencing set forth in R.C. 2929.11

and the sentencing factors set forth in R.C. 2929.12.”

citing State v. Brown, 2d

Dist. No. 2016-CA-53,

; see State v. D-Bey, 8th Dist.

Cuyahoga No. 109000,

.

{¶30} In sum, the record demonstrates that the prison terms imposed by the

trial court in this case are within the statutory range and that the trial court

considered the requisite statutory factors in R.C. 2929.11 and 2929.12 when it

fashioned Denoyer’s aggregate sentence. Thus, Denoyer cannot demonstrate that

his sentence is clearly and convincingly contrary to law, and his sentence must

therefore be affirmed. See State v. Burks, 2d Dist. Clark No. 2019-CA-70, 2021-

Ohio-224, ¶ 9, (“Under Jones, this ends the inquiry regarding the individual

sentences. Thus, there is no basis upon which to modify or vacate either individual

sentence.”); see also,

, citing

(concluding that “this

court cannot review D-Bey’s sentences to determine whether they are “excessive”

or otherwise not “supported by the record under R.C. 2929.11 and 2929.12.”). For

all of these reasons, Denoyer’s second assignment of error is overruled.

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Third Assignment of Error

{¶31} In his third assignment of error, Denoyer argues that the record does

not support consecutive sentences in this matter.4

Relevant Authority

{¶32} Pursuant to R.C. 2929.14(C)(4), in order to impose consecutive

sentences, a trial court must find on the record that consecutive sentences are

“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.” Accord State v. Grate,

--- Ohio St.3d ---,

. A trial court must then also find that at

least one or more of the aggravating factors in R.C. 2929.14(C)(4)(a) through (c)

are present.

{¶33} In State v. Bonnell,

,

, the

Supreme Court of Ohio held that a trial court must make the requisite statutory

findings before imposing consecutive sentences “at the sentencing hearing and

incorporate its findings into its sentencing entry, but it has no obligation to state

reasons to support its findings.”

4 The same standard of review from the second assignment of error applies here.

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Analysis

{¶34} In this case the trial court made all of the appropriate consecutive

sentences findings at the sentencing hearing, and in its judgment entry. This was

sufficient to comply with R.C. 2929.14(C)(4), and with the Supreme Court of

Ohio’s interpretation in Bonnell.

{¶35} On appeal, Denoyer does not even attempt to argue that the trial court

failed to make any of the appropriate findings; rather, he contends that the trial

court’s consecutive sentence findings were unsupported by the record. Importantly,

and contrary to Denoyer’s argument, a trial court has no obligation to state reasons

to support its findings.

. For this reason alone we could overrule

Denoyer’s assignment of error.

{¶36} Nevertheless, the trial court did state some reasons on the record as to

why it was imposing consecutive sentences, indicating that this violence went on

over a period of time, and that G.B. suffered serious physical harm, the extent of

which may not even be determined for years to come. The trial court also cited that

multiple acts occurred here, leading to separate identifiable harm. The litany of

fractures and injuries to this child, less than three months old, cannot be overstated.

While Denoyer may be remorseful now, and he may wish to have mental health

treatment, that does not change his actions in this matter.5

5 Denoyer claimed that he committed the acts while using “crystal meth.”

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{¶37} Based on the record before us we cannot find that Denoyer has

demonstrated that his consecutive sentences were clearly and convincingly contrary

to law. Therefore, his third assignment of error is overruled.

Conclusion

{¶38} For the foregoing reasons Denoyer’s assignments of error are

overruled and the judgment of the Allen County Common Pleas Court is affirmed.

Judgment Affirmed

WILLAMOWSKI, P.J. and MILLER, J., concur.

/jlr

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