[Cite as State v. Glover,

.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-220088 TRIAL NO. B-2003890 Plaintiff-Appellee, :

vs. : O P I N I O N.

TOMMY GLOVER, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part and Reversed in Part, and Cause Remanded

Date of Judgment Entry on Appeal: April 7, 2023

Melissa A. Powers, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Arenstein & Gallagher and Elizabeth Conkin, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

BOCK, Judge.

{¶1} Tommy Glover appeals his convictions for six counts of aggravated

robbery and five counts of kidnapping, all with firearm specifications, for robbing and

kidnapping five different individuals at gunpoint. Raising six assignments of error,

Glover challenges the trial court’s ruling that the photo lineup was not unduly

suggestive, admission of a videotape of him holding a gun and smoking marijuana,

and the in-court identifications of Glover. He further argues that the convictions were

based on insufficient evidence and against the manifest weight of the evidence. Finally,

he contends that the record does not support the sentences imposed by the trial court.

For the following reasons, we affirm the trial court’s judgment in part, reverse the

judgment in part, and remand the cause to the trial court.

I. FACTS AND PROCEDURE

{¶2} The state indicted Glover for a string of alleged robberies and

kidnappings. It accused Glover of forcing Andrew Schuur to drive to various ATMs and

withdraw cash on two occasions; robbing Janet McNamara of cash at gunpoint in her

car and forcing her to drive for ten minutes; robbing Robert Matanguihan at gunpoint,

taking his phone and car; and forcing Maya Bolander and Jacob Moretine, at gunpoint,

to drive to ATMs and stealing $800 from Moretine’s bank account.

A. Pretrial Motions

{¶3} Glover moved to suppress a photo lineup identification made by

McNamara, alleging that the lineup was unduly suggestive because her identification

was based on having seen Glover’s photo on the news following his arrest. Glover also

filed a motion in limine to prohibit the state from showing the jury a video from

Glover’s cell phone of Glover holding a gun while smoking marijuana.

2 OHIO FIRST DISTRICT COURT OF APPEALS

{¶4} McNamara was the sole witness at the hearing. She testified that she

first met with police at the St. Bernard police station immediately after she was

kidnapped and robbed. McNamara described the robber as a black male, wearing a

maroon T-shirt, black shorts, and white gym shoes. She had a very good look at him—

he was not wearing a mask and sat next to her in the passenger seat of her car for five

to ten minutes. At that time, McNamara told the police that she was scared to death

and just wanted to leave the station. A few months later, McNamara learned from a

patient that a news piece discussed police arresting a suspect who had committed

crimes similar to her experience. She called the police and agreed to view a photo

lineup in August 2020. After viewing the lineup, McNamara identified Glover as the

person who had robbed her.

{¶5} At the hearing, McNamara testified that she had never seen Glover’s

photo before the lineup and had not seen his photo on the news. When she initially

saw his photo, she was afraid because she knew it was him. McNamara confirmed that

an officer noted in the lineup page that McNamara was “visibly stressed, scared, and

worried about stating 100% certainty.” McNamara wrote that she was “100% certain

that he is the one.” The trial court overruled Glover’s motion to suppress.

{¶6} Turning to the motion in limine, Glover sought to prohibit the state from

playing a video from his phone of Glover wearing a black jacket with a reflective stripe

on the arm, smoking marijuana, and holding a gun. Glover argued the video was more

prejudicial than probative. In response, the state maintained that the cell phone video

linked Glover to the Schuur robbery and submitted still photos from an ATM video of

the robbery. In the photos, Schuur’s assailant is seen wearing a jacket that appeared

to match the jacket from Glover’s video. Ultimately, the court determined that the

3 OHIO FIRST DISTRICT COURT OF APPEALS

probative value of identifying Glover “in a very distinctive jacket” outweighed any

prejudice and overruled the motion in limine.

B. The Bench Trial

1) Schuur Robberies

{¶7} At the bench trial, Schuur testified that he was robbed on two separate

occasions. Schuur recalled that in May 2020, he was walking in his neighborhood

when two men asked him for directions. Schuur identified Glover as one of the men.

According to Schuur, Glover held him at gunpoint while the other man stole his wallet.

Schuur described being forced into the driver’s seat of his car and Glover instructing

him to drive to three different ATMs, where Schuur withdrew $500, $500, and $300.

Glover told Schuur to drive across town and fled at a stop sign. Based on his 45-minute

encounter, Schuur described Glover as a heavy-set black male with short hair and

facial hair, dressed in a hooded sweatshirt and jacket.

{¶8} Then, about a month later, Schuur was walking to his car when a man

wearing a black mask and a green shirt approached him with a gun. Schuur believed it

was the same man from the May robbery, recognizing his voice and body-type. Again,

Schuur was forced to drive to ATMs and withdrew $500, $500, and $300. Schuur was

with Glover for 20-25 minutes.

{¶9} In July 2020, police showed Schuur a lineup but he could not positively

identify anyone as his assailant, despite a slight resemblance in two photographs. In

August 2020, police showed Schuur another lineup. This time, he was 90 percent

certain that Glover was the perpetrator. The second photograph resembled his

assailant, but Schuur was only 30 percent confident in his identification. While two

other photos resembled his kidnapper, he was only 50 percent confident in those

4 OHIO FIRST DISTRICT COURT OF APPEALS

identifications. Schuur wrote, “There was one that I’m almost certain is the guy, and

others I am not so certain about.” But in court, Schuur identified Glover with 100

percent certainty.

{¶10} Detective Keith Ingram of the St. Bernard Police Department testified

that, as the primary investigator, he retrieved video and still photographs from a PNC

Bank ATM where Schuur was robbed. In the photos and video, Schuur can be seen

withdrawing money as he stood next to a man with a black-hooded sweatshirt with

reflective embossing on the sleeves.

{¶11} In his investigation, Ingram learned that Glover was arrested in August

for robberies in Norwood, Ohio. Police recovered three cell phones from Glover. After

forensic testing, cell phone location data (“pings”) placed Glover in the area of both

Schuur robberies. Indeed, the pings showed Glover walking the location in St. Bernard

where Schuur was kidnapped in May and placed Glover in the area where Schuur

dropped off the robber in June. The police also recovered a small bag and a video from

Glover’s phone. The video showed Glover wearing the same sweatshirt depicted in the

ATM photos. Over objection, the state played the video.

2) McNamara Robbery

{¶12} McNamara testified that in June 2020, when she left work and got into

her car, two men approached her car and opened her passenger-side doors. She

recalled a heavy-set black man with short black hair and facial hair getting into the

front seat and demanding money at gunpoint.1 McNamara testified that she “will never

forget his face.” As he rifled through her purse, McNamara begged for her life. He took

$10-$15 from her wallet and demanded she drive to an ATM, despite McNamara

1 McNamara testified that the second man never entered her car.

5 OHIO FIRST DISTRICT COURT OF APPEALS

telling him there was no money in her account. After ten minutes, he fled.

{¶13} Immediately afterwards, McNamara, now terrified, met with the St.

Bernard police but, in her frightened state, she was not able to identify the man who

robbed and kidnapped her. In August, she returned to view a photo lineup and

identified Glover with 100 percent certainty. McNamara also identified Glover in court

as her robber.

{¶14} Detective Ingram testified that a St. Bernard police related-incidents

document described a July phone call from McNamara where she informed police that

she recognized the man who robbed her from a Channel 12 news report.

3) Norwood Robberies

{¶15} Robert Matanguihan testified that he was accosted near his car in

Norwood by two men. According to Matanguihan, one of the two men was heavy-set

and appeared to give orders to the younger, skinnier man. Both had guns and

threatened to shoot Matanguihan. They demanded money, his phone, his car keys, and

his bank card. After learning that Matanguihan had no money and his bank account

was overdrawn, they stole his Chevy Aveo, which was eventually recovered a block

from his home with no damage to the car and nothing missing. The encounter lasted

roughly three minutes. Matanguihan was unable to identify the perpetrators from a

photo lineup or in court.

{¶16} Shortly after Matanguihan’s car was stolen, Jacob Moretine and Maya

Bolander were parked outside of Moretine’s house when two men emerged and

approached their car. One man wore a facemask with clown print and carried a bag.

The other man was thinner.

6 OHIO FIRST DISTRICT COURT OF APPEALS

{¶17} The men forced Moretine and Bolander, at gunpoint, into Moretine’s

car and forced Moretine to drive. Moretine recalled Glover tossing a cell phone out of

the car window during the drive. According to Moretine, Glover and his partner were

laughing about robbing another man of his cell phone near Moretine’s house.

{¶18} Over the course of two hours, the men forced Moretine to drive to three

ATMs. Glover accompanied Moretine to the first two ATMs while Glover’s partner held

Bolander at gunpoint. While Glover was able to withdraw money from Moretine’s

account at the first two ATMs, he was unable to withdraw money from Bolander’s

account at the third. Glover demanded that Moretine drive to Avondale, where Glover

and his partner took Bolander’s and Moretine’s cell phones and fled.

{¶19} Moretine and Bolander provided to police descriptions of the

perpetrators, which matched Matanguihan’s. In particular, Moretine described the

perpetrator as a heavy-set man with spiderwebs tattooed on his hands, wearing a face

mask decorated with clown print. Moretine confirmed that a photo of Glover’s hands

depicted the tattoos he saw.

{¶20} Moretine and Bolander were unable to positively identify anyone from

a photo lineup. While Moreline was not 95 percent certain, Moretine did recognize

Glover from his photo. But in court, Moretine identified Glover as the perpetrator with

100 percent certainty. And when shown a photo lineup, Bolander identified another

man as the perpetrator with 90 percent confidence. But in court, she identified Glover

as the gunman.

4) The Norwood Investigation

{¶21} Sergeant Matt Klingelhoffer from the Norwood Police Department was

assigned to investigate the robberies. He reached out to Detective Ingram after

7 OHIO FIRST DISTRICT COURT OF APPEALS

learning about the St. Bernard robberies. In each case, the suspect descriptions were

similar.

{¶22} Two of the banks where Moretine had been forced to stop provided

Klingelhoffer photos from their ATMs. The photos showed the suspect wearing a clown

face mask and a blue hoodie, with a black Nike bag worn across his chest.

{¶23} A little more than a month later, in August 2020, a Norwood resident

had reported that she and her husband became uncomfortable after seeing a man

wearing a face mask and a Nike bag slowly walking down Williams Avenue. Officers

dispatched to the scene found Glover nearby. When the officers asked to speak with

Glover, he briefly fled before being taken into custody. They released him at the scene.

{¶24} After comparing the body-camera footage from August 2020 with the

ATM photos, Klingelhoffer concluded that Glover was the person in the ATM photos.

{¶25} Officer Robert Wilsman of the Cincinnati Police Department testified

that he responded to a report of a possible robbery suspect walking down Reading

Road in August 2020. When Wilsman spotted Glover and exited from his car, Glover

fled before he was ultimately arrested. The state played Wilsman’s body-camera

footage in court, which showed Glover wearing the Nike bag.

{¶26} While in jail, Glover made phone calls. In one, Glover asked the other

person on the line, “Do they have my face on there?”

5) Glover’s testimony

{¶27} Glover testified that he did not commit any of the crimes. Glover

admitted that the person in the ATM photo had a Nike bag similar to his and wore it

in a similar fashion, but denied that was him. Glover also admitted that he owned a

black hooded sweatshirt with metallic stripes. He agreed that his sweatshirt was the

8 OHIO FIRST DISTRICT COURT OF APPEALS

same brand as the one in the photo, and that they looked similar, but pointed out a red

liner on the inside of the hoodie in the photograph. Finally, Glover testified that each

in-court identification was a lie.

6) The Verdicts and Sentences

{¶28} The trial court found Glover guilty of six counts of aggravated robbery

in violation of R.C. 2911.01(A)(1), and five counts of kidnapping in violation of R.C.

2905.01(A)(2), with each count carrying two penalty-enhancing gun specifications.

The court found that the same person committed the offenses due to the similar modus

operandi, methodology, physical descriptions, location proximity, and attempt to get

money from ATMs.

{¶29} Beginning with the Schuur robberies, Schuur identified Glover with 90

percent certainty when shown a photo lineup, his in-court identification was credible,

and the perpetrator’s jacket in the ATM photo matched the jacket worn by Glover in

his cell-phone video. Turning to the McNamara robbery, her identification of Glover

was believable and credible. The offenses occurred in the same area as the offenses

against Schuur with the same modus operandi. While Matanguihan could not identify

Glover, his car and phone were stolen, and his car was immediately discarded one

street away from the location where Glover encountered Bolander and Moretine. And

Bolander’s and Moretine’s in-court identifications and testimonies were credible. Plus,

the ATM photos clearly depicted Glover. Glover was also identifiable by the Nike bag

and tattoos. In addition, the trial court cited Glover’s attempt to flee from the police

and jail call admission.

{¶30} During the mitigation portion of the sentencing hearing, Glover

requested an aggregate 12-to-15-year sentence, citing the lack of physical harm to the

9 OHIO FIRST DISTRICT COURT OF APPEALS

victims and his lack of prior felony convictions. Based on the victims’ and officers’

wishes, the state recommended a 20-to-25-year sentence. The presentence-

investigation report stated that Glover was adjudicated delinquent as a juvenile for

Toledo’s Safe School Ordinance, but did not include any facts underlying that

adjudication. See Toledo Municipal Code 537.16.

{¶31} The trial court found that consecutive sentences were necessary to

protect the public and punish the offender and not disproportionate to the conduct.

The court further found that the harm caused by two or more of the offenses was so

great or unusual that no single prison term adequately reflected the seriousness of

Glover’s conduct. Finally, the court found that the offenses were committed as part of

a course of conduct, and Glover’s criminal history, which “shows violence in school,”

demonstrated that consecutive sentences were necessary to protect the public.

{¶32} The trial court sentenced Glover to seven years on each underlying

felony and three years on each gun specification, with each specification to be served

consecutively and before the sentences imposed on the underlying offenses. The

sentences for the aggravated robbery counts were to be served consecutively to each

other and the kidnapping sentences were to be served concurrently to each other and

the other sentences, for an aggregate term of 60 years’ incarceration.

II. LAW AND ANALYSIS

A. McNamara’s lineup identification was admissible

{¶33} In his first assignment of error, Glover contends that the trial court

violated his due-process rights by denying his motion to suppress McNamara’s

identification.

{¶34} Appellate review of a motion to suppress presents a mixed question of

law and fact. State v. Burnside,

,

,

,

10 OHIO FIRST DISTRICT COURT OF APPEALS

¶ 8. An appellate court must accept the trial court’s findings of fact if they are

supported by some competent, credible evidence.

Accepting those facts as true, the

appellate court must then independently determine, without deference to the trial

court’s judgment, whether the facts satisfy the applicable legal standard.

{¶35} “Due process requires suppression of pre-trial identification of a

suspect only if the identification procedure was so impermissibly suggestive as to give

rise to a very substantial likelihood of misidentification.” Neil v. Biggers,

,

,

(1972).

{¶36} The defendant must demonstrate that the lineup was unduly suggestive.

“A lineup is unduly suggestive if it steers the witness to one suspect, independent of

the witness’s honest recollection.” (Citations omitted.) State v. Adams,

,

,

. “When the questionable circumstances of

an identification procedure are not due to state action, the reliability of the

identification is a question going to the weight of the testimony, not its admissibility.”

Id. at ¶ 209.

{¶37} Glover argues that McNamara’s identification was tainted because she

saw his mugshot on the news. To support this assertion, Glover relies on the police

report written by an unnamed St. Bernard police officer. The report memorialized a

phone call from McNamara to the St. Bernard police in which, according to the report,

she stated that she saw the person who had robbed her on a Channel 12 news story.

{¶38} But McNamara testified at the suppression hearing that she had not

seen any news reports about Glover. Instead, McNamara testified that one of her

patients had seen a news report and informed her that the police had arrested someone

for committing crimes similar to the crime committed against her.

11 OHIO FIRST DISTRICT COURT OF APPEALS

{¶39} Glover makes no showing that the state employed an unduly suggestive

procedure. Because the lineup was not unduly suggestive, it was admissible. The

identification’s reliability was an issue for the trier of fact to decide. See State v.

Savage, 1st Dist. Hamilton No. C-180413,

. We overrule Glover’s

first assignment of error.

B. The trial court properly admitted the video of Glover

{¶40} Glover’s second assignment of error asserts that the trial court erred in

admitting video evidence of him holding a gun and smoking marijuana.

{¶41} Evid.R. 404(B)(1) prohibits evidence of a defendant’s other acts when

its only purpose is to show the defendant’s propensity or character to commit crimes.

Evid.R. 404(B)(2) allows evidence of the defendant’s other crimes, wrongs, or acts to

be admitted for other purposes, “such as proving motive, opportunity, intent,

preparation, plan, knowledge, identity, absence of mistake, or lack of accident..” The

admissibility of other-acts evidence is a question of law that this court reviews de novo.

State v. Hartman,

,

,

. But we

review the trial court’s weighing of the probative value of admissible evidence against

the danger of unfair prejudice to the defendant for an abuse of discretion. Id. at ¶ 30.

{¶42} To determine whether other-acts evidence is admissible, the first step is

to determine whether the evidence is relevant to the particular purpose for which it is

offered and whether it is relevant to an issue in dispute. Id. at ¶ 26-27. If the evidence

passes the relevancy test, the final step is to consider whether the value of the evidence

“is substantially outweighed by the danger of unfair prejudice, of confusion of the

issues, or of misleading the jury.” Id. at ¶ 29.

12 OHIO FIRST DISTRICT COURT OF APPEALS

{¶43} The state sought to admit the video from Glover’s phone to establish the

identity of the person who kidnapped and robbed Schuur. The perpetrator’s identity

was a material issue in this case and the video depicted Glover wearing a distinctive

jacket that appeared to match the jacket worn by the individual who kidnapped and

robbed Schuur. Thus, the evidence was relevant to identity, the particular purpose for

which it was offered.

{¶44} Next, this court must determine whether the evidence’s probative value

was substantially outweighed by the danger of unfair prejudice under Evid.R. 403(A).

Probative evidence is subject to exclusion where the evidence “might result in an

improper basis for a jury decision,” such as where “the evidence arouses the jury’s

emotional sympathies, evokes a sense of horror, or appeals to an instinct to punish[.]”

State v. Worley,

,

,

. But

because this was a bench trial, “we presume that the court considered only ‘relevant,

material and competent evidence’ unless the record affirmatively discloses otherwise.”

State v. Pennington, 1st Dist. Hamilton Nos. C-170199 and C-170200, 2018-Ohio-

3640, ¶ 46, quoting State v. Post,

,

(1987).

{¶45} Before admitting the video, the trial court acknowledged the prejudicial

effect of the gun but found that “the identifying features of the jacket outweighs the

prejudice.” We presume that the trial court did not consider improper evidence in

reaching its verdict. State v. Arnold,

,

,

. The record contains no evidence that the trial court improperly considered

the gun or the marijuana in reaching its verdict. Therefore, we overrule Glover’s

second assignment of error.

C. Witnesses’ in-court identifications were not unduly suggestive

13 OHIO FIRST DISTRICT COURT OF APPEALS

{¶46} Glover’s third assignment of error asserts that the victims’ in-court

identifications were unduly suggestive and unreliable because the identifications were

influenced by the fact that he was the only heavy-set black man wearing a jail jumpsuit

in the courtroom when the identifications were made. Glover further contends that the

admission of the identifications was plain error that affected the outcome of the trial

and resulted in a manifest miscarriage of justice.

{¶47} Glover acknowledges that he did not object to the in-court

identifications and that his claim is subject to a plain-error review. To prevail on a

plain-error claim, an accused must show that an error occurred, that the error was

plain, and that the error affected the outcome of the trial. See Crim.R. 52(B). A

reviewing court should employ the “utmost caution” and find plain error only “under

exceptional circumstances and only to prevent a miscarriage of justice.” State v. Long,

,

(1978), paragraph three of the syllabus.

{¶48} “An identification derived from unnecessarily suggestive procedures,

which have a likelihood of leading to a misidentification, violates a defendant’s right

to due process.” Neil v. Biggers,

,

,

(1972).

Whether the Due Process Clause requires a trial court to suppress an eyewitness

identification involves a two-step inquiry. State v. Stidhum, 1st Dist. Hamilton No. C-

170319,

(finding that a witness’s in-court identification was

admissible). First, the defendant must establish that the identification procedure used

by the state was “both suggestive and unnecessary.”

If there is no showing that the

state employed an unnecessarily suggestive procedure to obtain the identification,

then the unreliability of the identification alone will not preclude its admission at trial.

Id. at ¶ 38. “Instead, such unreliability should be exposed through the rigors of cross-

14 OHIO FIRST DISTRICT COURT OF APPEALS

examination at trial and the protections built into the adversary system, such as the

right to the effective assistance of counsel, the right to confront the witness, and the

rules of evidence.” Id. “Therefore, in-court identifications, where there has been no

prior unlawful or unnecessarily suggestive police conduct, are properly admitted.”

State v. Berry, 10th Dist. Franklin No. 18AP-9,

.

{¶49} To the extent that Glover argues that when identity is an issue in a case,

in-court identifications are inherently suggestive and unreliable, he cites to no

controlling legal authority to support this contention. Moreover, Glover made no

showing that the procedure employed by the state was unduly suggestive.

{¶50} Glover has not shown that the trial court’s admission of the witnesses’

in-court identifications amounted to error, much less plain error. As such, any

unreliability of the in-court identifications was an issue of weight, not admissibility.

We overrule the third assignment of error.

D. The convictions were supported by sufficient evidence and not against the manifest weight of the evidence

{¶51} In his fourth and fifth assignments of error, which he argues together,

Glover contends that his convictions were based on insufficient evidence and contrary

to the manifest weight of the evidence.

{¶52} A challenge to the sufficiency of the evidence presents this court with a

question of law that we review de novo. State v. Dent,

, 2020-Ohio-

6670,

, quoting State v. Thompkins,

,

(1997). The test for determining the sufficiency of the evidence is whether

“after viewing the probative evidence and inferences reasonably drawn therefrom in

the light most favorable to the prosecution, any rational trier of fact could have found

all the essential elements of the offense beyond a reasonable doubt.” State v.

15 OHIO FIRST DISTRICT COURT OF APPEALS

MacDonald, 1st Dist. Hamilton No.

, quoting State v.

Martin,

,

(1st Dist. 1983).

{¶53} In reviewing a weight-of-the-evidence claim, we review “ ‘the entire

record, weigh the evidence and all reasonable inferences, consider the credibility of

the witnesses and determine whether, in resolving conflicts in the evidence, the [trier

of fact] 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. Bailey, 1st Dist.

Hamilton No. C-140129,

, quoting State v. Thompkins,

,

(1997). “This court will not substitute its judgment for that

of the trier of fact on the issue of witness credibility unless it is patently apparent that

the trier of fact lost its way in arriving at its verdict.” Bailey at ¶ 63.

{¶54} Glover challenges the reliability of his identification as the perpetrator

because the clothing identified by the victims was different in each offense, the

locations were different, the number of perpetrators and their locations in the cars

were different, the face coverings were different, the presence of tattoos was different,

the identifications were inconsistent or wrong, the ATM photos and video were blurry,

and there was no fingerprint or DNA evidence that connected Glover to the crimes.

{¶55} Glover generally challenges the state’s proof, citing the lack of physical

evidence such as fingerprints or DNA test results. But the state is not required to

present physical evidence to meet its burden of proof. See State v. Jeffries, 2018-Ohio-

2160,

(1st Dist.) (concluding that “the state is not required to

present corroborating DNA test results or other corroborating physical evidence to

meet its burden of proof, even in a rape case.”); State v. Nix, 1st Dist. Hamilton No. C-

030696,

, ¶ 67 (finding that the record contained more than sufficient

16 OHIO FIRST DISTRICT COURT OF APPEALS

evidence in the form of witness testimony to sustain the charges against the

defendant).

{¶56} We find that the state’s evidence sufficiently supported the convictions.

Two witnesses identified Glover before trial. Two other witnesses identified Glover at

trial. The fifth victim could not identify Glover, but his car was recovered near where

the next two victims were robbed and kidnapped. The modus operandi of the crimes

was similar, as were the descriptions of the perpetrators. This evidence was sufficient

to support Glover’s convictions.

{¶57} Glover further argues that the trial court erred in weighing the evidence,

clearly lost its way, and created a manifest miscarriage of justice because the witness

identifications were unreliable. “It is well settled that the responsibility of weighing

the credibility of a witness rests with the fact-finder.” Johnson v. Abdullah,

,

,

.

{¶58} The trial court, as the finder of fact, was entitled to believe all, some, or

none of the witnesses’ testimony. State v. Simmons,

,

,

¶ 35 (10th Dist.). The trial court heard the testimony and found the witnesses’

testimony to be credible. There is nothing in the record to suggest that the trial court

clearly lost its way and created such a manifest miscarriage of justice as to warrant

reversal. This is not one of those rare, exceptional cases in which the evidence weighs

heavily against conviction. Accordingly, we overrule the fourth and fifth assignments

of error.

E. The record does not support six consecutive sentences

{¶59} In his sixth assignment of error, Glover, who was 23 years old at the

time of sentencing, asserts that the record does not support the trial court’s imposition

17 OHIO FIRST DISTRICT COURT OF APPEALS

of consecutive sentences, for an aggregate sentence of 60 years, which is tantamount

to a life sentence.

{¶60} Before trial, the state offered Glover a 15-year prison term in exchange

for a guilty plea. Glover declined, instead choosing to exercise his constitutional right

to a jury trial. After trial, the prosecutor told the trial court, “At a minimum I do not

think that whatever sentence the Court imposes for each victim should run consecutive

with each other. These were separate incidents, separate dates.” And the state, based

on the victims’ and officers’ wishes, recommended a sentence of between 20 and 25

years.

{¶61} We agree with the state’s position at trial and with Glover. Because we

clearly and convincingly find that the record does not support the trial court’s findings

involving the proportionality of Glover’s aggregate sentence to the seriousness of his

conduct and the danger he poses to the public, we sustain Glover’s sixth assignment

of error.

1) The record must support imposition of consecutive sentences {¶62} Ohio law contains a statutory presumption of concurrent sentences for

defendants convicted of multiple offenses. State v. Galinari, 1st Dist. Hamilton No. C-

210149,

. “The general principle set forth in the Revised Code is

that concurrent sentences are the default and consecutive sentences are the

exception.” State v. Hitchcock,

,

,

,

¶ 21.

{¶63} “Consecutive sentences are reserved for the worst offenses and

offenders.” State v. Comer,

,

,

,

18 OHIO FIRST DISTRICT COURT OF APPEALS

abrogated on other grounds, State v. Foster,

,

,

, paragraph three of the syllabus (statutorily-mandated judicial factfinding

violated defendants’ right to a jury trial).

{¶64} Because consecutive sentences are the exception and should be reserved

for the most serious offenders and offenses, the legislature requires a sentencing court

to make the mandatory sentencing findings prescribed by R.C. 2929.14(C)(4). See

Galinari at ¶ 9, citing State v. McKinney, 1st Dist. Hamilton No. C-210276, 2022-

Ohio-849, ¶ 11. A trial court must make three distinct findings: 1.) “the consecutive

service is necessary to protect the public from future crime or to punish the offender;”

2.) “consecutive sentences are not disproportionate to the seriousness of the offender’s

conduct and to the danger the offender poses to the public,” and 3.) one or more of

R.C. 2929.41(C)(4)’s subsections apply. R.C. 2929.14(C)(4).

{¶65} Relevant here, R.C. 2929.41(C)(4)’s subsections require the court to find

that either 1.) two or more offenses were committed as part of a course of conduct and

the harm caused by the offenses was so great or unusual that a single prison term

cannot adequately reflect the seriousness of the offender’s conduct; or 2.) the

offender’s criminal history demonstrates that consecutive sentences are needed to

protect the public from the defendant committing future crimes. R.C.

2929.41(C)(4)(b) and (c).

{¶66} To determine compliance with R.C. 2929.14(C)(4), we examine

whether: 1.) the trial court engaged in the correct analysis, and 2.) the record contains

evidence to support the trial court’s findings. State v. Bonnell,

,

,

. The trial court must state the required findings

at the sentencing hearing and incorporate those findings into the sentencing entry.

19 OHIO FIRST DISTRICT COURT OF APPEALS

There is no dispute that the trial court made the requisite findings. Instead, Glover’s

argument on appeal is that the record does not support the trial court’s findings.

2) Ohio law permits appellate courts to modify imposition of consecutive sentences that are clearly not supported by the record

{¶67} Appellate review of consecutive sentences is governed by R.C.

2953.08(G)(2). See State v. Marshall, 1st Dist. Hamilton Nos. C-190748 and C-

190758,

, citing State v. Gwynne,

, 2019-Ohio-

4761,

, ¶ 16.

{¶68} R.C. 2953.08(G)(2) does not permit appellate courts to weigh the

evidence and alter a sentence under R.C. 2929.11 and 2929.12. State v. Jones,

,

,

. Consecutive sentences, however,

being the exception to the general rule, are treated differently.

{¶69} This court may modify or vacate a trial court’s decision to impose

consecutive sentences if we, after reviewing the record, clearly and convincingly find

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

2929.14(C)(4). R.C. 2953.08(G)(2)(a). Put another way, this court may vacate or

modify the trial court’s sentence only “if, upon review of the record, the court is left

with a firm belief or conviction that the findings are not supported by the evidence.”

.

{¶70} Recently, the Supreme Court of Ohio considered two questions

involving consecutive sentences: 1.) under what standard should an appellate court

review the imposition of consecutive sentences; and 2.) are courts required to

“consider the overall aggregate prison term to be imposed when making [R.C.

20 OHIO FIRST DISTRICT COURT OF APPEALS

2929.14(C)(4)] consecutive-sentence findings.” State v. Gwynne, Slip Opinion 2022-

Ohio-4607, ¶ 1.2

{¶71} Regarding the first question, the Gwynne majority held that an

appellate court should review imposition of consecutive sentences de novo.

The

dissent, however, noted that “ ‘[o]rdinarily, appellate courts defer to trial courts’ broad

discretion in making sentencing decisions,’ and R.C. 2953.08(G) reflects that

deference.” Id. at ¶ 52, quoting State v. Rahab,

,

,

. As will be discussed in detail below, even under a deferential

standard of review, we find that the trial court’s imposition of a 60-year aggregate

sentence was error because we hold a firm belief that the record does not support the

trial court’s findings.

{¶72} Regarding whether a court must consider the aggregate sentence when

making the statutory consecutive-sentences findings, the Gwynne majority answered

affirmatively. Id. at ¶ 1. And while the dissent disagreed that a court must make

findings in considering the aggregate term, it agreed that a trial court considers the

aggregate sentence: “The only reasonable interpretation of R.C. [2929.14(C)(4)] is that

when a trial court is imposing multiple prison terms, it may order a defendant to serve

some or all of those prison terms consecutively if it makes the statutory findings

established by the legislature. * * * When a trial court orders a defendant to serve

multiple consecutive prison terms, of course it knows the amount of time that it has

sentenced the defendant to serve.” (Emphasis added.) Id. at ¶ 67, 70 (Kennedy, J.,

dissenting).

2We note that the state moved for the Supreme Court of Ohio to reconsider its decision in Gwynne. As of the date of this decision, the court has not ruled on the state’s motion.

21 OHIO FIRST DISTRICT COURT OF APPEALS

{¶73} Under the interpretations provided by both the majority and the dissent

in Gwynne, if the sentencing court makes the requisite R.C. 2929.14(C)(4) findings, it

may order some of the sentences be served consecutively or all of the sentences be

served consecutively. Thus, while the majority and dissent in Gwynne disagreed about

whether a trial court must consider the aggregate sentence, they appeared to agree

that a court can consider the aggregate sentence when determining whether to impose

consecutive sentences and if so, how many of the prison terms should be served

consecutively.

{¶74} A trial court, when imposing consecutive sentences, may look to the

aggregate sentence to determine if it is disproportionate to the offender’s criminal

history and offenses. Once a court decides to impose consecutive sentences, it need

not stack all of the sentences. Instead, if it runs sentences consecutively, it should stack

those sentences such that the sentence is proportionate to the seriousness of the

offender’s conduct and to the danger the offender poses to the public.

3) Statutory and case law demonstrate that crimes causing physical harm receive longer sentences

{¶75} As stated above, the Ohio Supreme Court has held that “consecutive

sentences are reserved for the worst offenses and offenders.” Comer,

,

,

. And crimes that cause physical and

emotional harm, rather than only emotional harm, generally receive longer sentences.

For example, the penalty for aggravated murder under R.C. 2903.01 (“No person shall

purposely, and with prior calculation and design, cause the death of another or the

22 OHIO FIRST DISTRICT COURT OF APPEALS

unlawful termination of another’s pregnancy.”) is a minimum of life in prison to a

maximum of death. The penalty for murder under R.C. 2903.02 (“No person shall

purposely cause the death of another * * * .”) is an indefinite term of 15 years to life.

R.C. 2929.02(B)(1). Rape of a child aged ten or younger carries a maximum term of

life without parole. R.C. 2907.02. And when a defendant is convicted of a violent sex

offense with a sexually-violent-predator specification, subject to some exceptions, the

court must impose an indefinite prison term of 25 years to life. R.C.

2971.03(A)(3)(d)(1).

{¶76} Moreover, the penalties for violent crimes are enhanced when the victim

suffered serious physical injury. For example, R.C. 2921.331, which prohibits a person

from failing to comply with a lawful order of a police officer, is a misdemeanor or a

fourth-degree felony in all cases except when the offender’s behavior either

proximately caused, or carried a substantial risk of causing, serious physical harm to

persons or property. R.C. 2921.331(C). And R.C. 2919.22, which prohibits endangering

children, is a misdemeanor if the offender has not previously been convicted of an

offense involving neglect, abandonment, contributing to the delinquency of, or

physical abuse of a child. R.C. 2929.331(C)(2)(a)-(b). But the offense is enhanced for

all offenders, regardless of prior convictions, to a second- or third-degree felony if the

offense results in serious physical harm to the child. R.C. 2929.331(C)(2)(c)-(d). And

the statute prohibiting child rape is enhanced for several reasons, including if the

offender caused serious physical harm to the victim. R.C. 2907.02.

{¶77} A selection of Ohio cases in which the offender was convicted of crimes

that caused both physical and emotional harm, such as rape, sexual conduct with

minors, murder, attempted murder, and assault, shows that while courts impose

23 OHIO FIRST DISTRICT COURT OF APPEALS

lengthy sentences, many are shorter than 60 years. E.g., State v. McRae, 1st Dist.

Hamilton No. C-180669,

(court sentenced defendant on two

counts of attempted murder of police officers, two counts for having a weapon while

under a disability, one count of carrying a concealed weapon, and assault; his

aggregate sentence was 43.5 years); State v. Patton, 1st Dist. Hamilton No. C-190694,

(defendant convicted of two counts of murder with specifications;

aggregate sentence was 24 years to life); State v. Prescott, 8th Dist. Cuyahoga Nos.

107784 and 107789,

(defendant convicted of 14 counts each of

aggravated robbery and kidnapping, all with gun specifications, for eight separate

events; one victim was pistol whipped, causing serious injuries, and another victim

was punched in the face; court imposed aggregate 25-year sentence); State v

Washington, 6th Dist. Lucas No. L-19-1190,

(trial court

sentenced defendant who brutally raped and assaulted two women to aggregate 28-

year sentence); State v Corey, 11th Dist. Geauga No. 2021-G-0029,

(defendant who shot victim four times was convicted of attempted murder,

firearm specifications, and tampering with evidence; trial court sentenced him to

aggregate term of ten-15 years); Galinari, 1st Dist. Hamilton No. C-210149, 2022-

Ohio-2559, at ¶ 2, 4 (defendant attacked a teenager and an adult with an aluminum

bat; trial court sentenced him to an aggregate 13-year term); Ohio v. Jones, 2d Dist.

Montgomery No. 28977,

(defendant broke into three women’s

homes, raped two of the women by gunpoint, and forced one to take fentanyl; after

jury convicted the defendant of aggravated burglary with a deadly weapon, aggravated

burglary causing physical harm, two counts of rape, two counts of kidnapping, and one

count of aggravated robbery with a deadly weapon, the court sentenced him to an

24 OHIO FIRST DISTRICT COURT OF APPEALS

aggregate term of 39 years); State v. Polizzi,

,

,

, ¶ 36 (defendant-teacher was convicted of gross sexual imposition and

six counts of sexual battery for inappropriate relationships with his high school

students; appellate court found that 33-year sentence would demean the seriousness

of more serious crimes, such as rape and murder); State v. Consiglio, 7th Dist.

Mahoning No. 21 MA 0066,

(defendant convicted of rape,

attempted rape, aggravated robbery, robbery, theft from a person in a protected class,

and domestic violence against his 79-year-old grandmother, plus assaulting a police

officer; court merged allied offenses and sentenced him to indefinite term of 19.5 to 25

years’ incarceration); State v. Steele, 5th Dist. Delaware No. 21 CAA 11 0061, 2022-

Ohio-712, ¶ 1 (court sentenced defendant convicted by a jury of five counts of unlawful

sexual conduct with a minor, two counts of rape, and one count of gross sexual

imposition to an aggregate prison term of 22 years).

{¶78} A review of cases in which a defendant was convicted of crimes that

caused emotional trauma, but no or minimal physical harm, showed that courts often

impose significantly shorter sentences than 60 years, even when there are multiple

offenses and victims. See, e.g., State v. Pattson, 2d Dist. Montgomery Nos. 29028 and

29029,

(defendant who broke into a home and threatened to kill at

gunpoint the two adults and their young children, shot the family’s puppy, and forced

the woman by gunpoint to drive her vehicle to an ATM to withdraw cash, stole her car,

and left her in an alley, was convicted of aggravated burglary, two counts of aggravated

robbery, one count of kidnapping, one count of having weapons under a disability, two

counts of aggravated menacing, one count of cruelty to a companion animal, and one

count of grand theft; the trial court imposed an indefinite sentence of 12 to 15 years);

25 OHIO FIRST DISTRICT COURT OF APPEALS

State v. Cremeans, 5th Dist. Muskingum No. CT2015-0062,

(a

defendant with multiple prior convictions for violent offenses received an aggregate

30-year sentence for multiple counts of aggravated burglary, kidnapping, aggravated

robbery, and having weapons under a disability after he entered the home where three

adults and four children were present, waved guns around, threatened an adult, and

tied up two children and two adults); State v. Justice, 2d Dist. Montgomery No. 23744,

(defendant was found guilty of four counts of aggravated robbery,

five counts of aggravated burglary, four counts of kidnapping, and two counts of

having weapons under disability, some charges with firearm specifications; court

sentenced him to a seven-year prison term); State v. Rogers, 8th Dist. Cuyahoga No.

92380,

(defendant convicted of three counts of aggravated burglary,

with one- and three-year firearm specifications, and three counts of kidnapping, with

one- and three-year firearm specifications, for taking money from four victims at

gunpoint; trial court imposed aggregate six-year prison term).

{¶79} Under this backdrop, we turn to whether, after reviewing the record, we

clearly and convincingly find that the record does not support the trial court’s findings

under R.C. 2929.14(C)(4).

4) The record clearly and convincingly does not support the trial court’s findings under R.C. 2929.14(C)(4)

{¶80} Glover argues that his aggregate sentence is excessive and the trial

court’s R.C. 2929.14(C)(4) findings were not supported by the record. The trial court

ran consecutively Glover’s six aggravated-robbery sentences (seven years each) and

each underlying charge’s gun specification (three years each), for an aggregate 60-year

26 OHIO FIRST DISTRICT COURT OF APPEALS

sentence. The trial court told Glover that “[t]he sentence I’ve imposed is the sentence

you will serve without any good-time reduction.”

{¶81} As discussed above, a trial court, before imposing consecutive

sentences, must find all three of the R.C. 2929.14(C)(4) factors. Therefore, if a

reviewing court determines that the record clearly and convincingly does not support

any one of the three findings, it must modify the aggregate sentence.

{¶82} Here, the trial court stated that the sentences were “consecutive to each

other because one sentence is really not sufficient for the crime that you committed.”

It found that the sentence “is most appropriate to punish you for the crimes that you

did.” It noted that Glover had not taken responsibility and was not amenable to

change.

{¶83} Next, the court found that Glover had committed two or more offenses

as part of a course of conduct and the harm caused was so great or unusual that no one

term would reflect the seriousness of Glover’s conduct. It also found that Glover had a

criminal history of violence in school.

{¶84} Finally, regarding proportionality, the trial court stated, “I feel that you

do have a criminal history which shows violence in school. And I do feel that I need to

protect the public. And I do feel [it’s] necessary to protect the public, and to punish the

offender, and it is not disproportionate to the seriousness of the offender’s conduct

and danger the offender poses to the public.” The trial court discussed the fact that

Glover did not live in Hamilton County, did not appear to be supporting his children,

was unemployed, and showed no remorse.

{¶85} We hold that the trial court’s findings involving proportionality under

R.C. 2929.14(C)(4) and criminal history under R.C. 2929.14(C)(4)(c) were clearly and

27 OHIO FIRST DISTRICT COURT OF APPEALS

convincingly not supported by the record.3 While we believe that Glover’s conduct was

serious and caused his victims significant emotional trauma, his conduct does not

justify imposing consecutive sentences on all the aggravated robbery charges and

specifications, for an aggregate 60-year sentence. Imposing a sentence akin to life in

prison on a 23-year-old man, under the facts and circumstances in this case, clearly

was not supported by the record.

5) The trial court’s 60-year sentence was disproportionate to Glover’s past conduct and offenses

{¶86} Before imposing consecutive sentences, R.C. 2929.14(C)(4) requires the

trial court to 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

* * * .”

{¶87} A proportionality analysis considers both the defendant’s current

conduct and the risk of the defendant being a danger in the future. R.C. 2929.14(C)(4).

To make that determination, the analysis “focuses upon the defendant’s current

conduct and whether this conduct, in conjunction with the defendant’s past conduct,

allows a finding that consecutive service is not disproportionate.” State v. Crim, 2d

Dist. Clark No. 2018-CA-38,

; State v. Mathis, 6th Dist. Lucas

No. L-21-1249,

(same); State v. Forsell, 11th Dist. Portage Nos.

2019-P-0116, 2019-P-0117, 2019-P-0118, 2019-P-0119, 2019-P-0120, 2019-P-0121,

2019-P-0122, 2019-P-0123 and 2019-

(same).

3 Because the trial court also found that Glover committed two or more offenses as part of a course of conduct causing harm so great or unusual that a single prison term was inadequate to reflect the seriousness of Glover’s offenses and because, as will be discussed below, proportionality findings involve considering both past and current conduct, we will discuss the trial court’s findings regarding Glover’s criminal history in our discussion about proportionality.

28 OHIO FIRST DISTRICT COURT OF APPEALS

a. Glover’s juvenile adjudication

{¶88} “Quite simply, a juvenile adjudication is not a conviction of a crime and

should not be treated as one.” State v. Hand,

,

,

. Despite that general rule, Ohio law allows a trial court to view

offenders’ juvenile history as part of their criminal history when imposing consecutive

sentences. State v. Batiste,

,

, ¶ 20 (8th Dist.). But

“use of an offender’s juvenile criminal history is generally reserved for instances where

the offender has an extensive juvenile history.” Id.; see State v. Jones, 8th Dist.

Cuyahoga No. 111208,

(same).

{¶89} The trial court not only used Glover’s single juvenile adjudication in its

consideration of his past criminal acts, but also misinterpreted the ordinance under

which Glover was adjudicated delinquent.

{¶90} Glover was adjudicated delinquent under Toledo Municipal Code

537.16. The ordinance, titled “Assault upon a teacher; disrupting school activity,”

prohibits a person from assaulting, striking or threatening a teacher.

But it also

prohibits a person from “disrupt[ing], disturb[ing] or interfere[ing] with the teaching

of any class of students, or disrupt[ing], disturb[ing] or interfere[ing] with any activity

conducted in a school, college, or university building, or upon the campus or grounds

thereof, or in any public place.”

{¶91} Nothing in the record included any facts underlying that adjudication.

Nevertheless, the trial court found that Glover’s adjudication was “an act of violence”

showing that he was not “amenable to follow the law” and demonstrating a need to

protect the public.

{¶92} The findings involving Glover’s criminal history are clearly and

convincingly not supported by the record because there is nothing in the record to

29 OHIO FIRST DISTRICT COURT OF APPEALS

substantiate the finding that Glover’s adjudication was based on a violent act. Indeed,

his adjudication could have been based on something as trivial as nonviolent

disruption of a class or even a pep rally. And Glover had only one other nontraffic-

related conviction, obstructing official business, a misdemeanor.

{¶93} The trial court’s conclusion about Glover’s past criminal acts clearly and

convincingly was not supported by the record. Yet, the record indicates that the trial

court placed significant weight on Glover’s juvenile adjudication in its proportionality

consideration. It found that Glover’s adjudication was “an act of violence,” an “assault

on teachers. That’s kind of disturbing. That causes me some pause and some concern.”

Glover’s juvenile record and his misdemeanor obstruction-of-official-business charge

indicated to the trial court that he was not “amenable to follow the law.” And its

sentencing entry stated, “specifically, the court finds that the defendant’s criminal

history shows a need to protect the public from future crime by the defendant.”

{¶94} Removing Glover’s acts in this case, there is nothing in Glover’s history

that indicates he poses a danger to the public. He had a juvenile adjudication without

any underlying facts to substantiate the trial court’s assertion that it was a violent

crime. And he had a misdemeanor obstructing-justice conviction.

{¶95} The record clearly does not support the trial court’s findings that

Glover’s past conduct shows he poses a danger to the public. The trial court’s improper

findings regarding Glover’s past conduct undermines its proportionality finding. b. Glover’s current offenses

{¶96} The Second District has determined that a lack of physical harm

requires imposition of concurrent sentences. State v. Hicks, 2d Dist. Greene No. 2015-

CA-20,

(“we note that there is no evidence that Hicks caused

physical harm to any of the residents subject to her fiscal supervision, hence the

30 OHIO FIRST DISTRICT COURT OF APPEALS

conduct does not fit into the category of ‘the harm is so great or unusual that no single

prison term adequately reflects the seriousness’ ”). While we do not wish to paint such

a broad brush, we find that the lack of physical harm weighs against stacking all of the

seven-year aggravated-robbery sentences.

{¶97} This position is bolstered by looking to the Ohio Revised Code. Some

statutes carry an enhancement when the offense causes or risks serious physical harm.

And the penalties for crimes such as aggravated murder, murder, and child rape carry

a life-sentence tail. Thus, the legislature has determined that certain crimes, such as

those causing the most serious physical harm, should get longer sentences.

{¶98} Yet, other than life sentences without a possibility for parole, many

offenders who commit the most serious crimes may serve significantly shorter terms

than Glover. Murder is undoubtedly a more serious crime than aggravated robbery.

But a person who purposely takes another person’s life may have the opportunity to

be paroled after 15 years. Glover, who did not take his victims’ lives or cause them

physical harm, would have no chance of parole at 15, 20, 25, or even 50 years.

{¶99} The trial court stated, “I really can’t think of anything worse than if you

had just shot them, and if you killed them. But you know, maybe they wouldn’t have

to live with the fear and the nightmares that they have as a result of this, because they

would be dead.” The trial’s court’s suggestion that only death—and perhaps not even

death—was the only worse fate for Glover’s victims gives us a glimpse into why the

trial court imposed a sentence akin to life, which is longer than many offenders receive

for more serious crimes. While this court cannot look at every sentence imposed for

every crime, our review above of sentences for crimes causing physical harm bolsters

our conclusion that the trial court’s aggregate sentence was disproportionate to

31 OHIO FIRST DISTRICT COURT OF APPEALS

Glover’s offenses and the danger he poses to the public. The trial court imposed a

longer sentence than in Patton, 1st Dist. Hamilton No. C-190694,

, where the defendant murdered two strangers; McRae, 1st Dist. Hamilton No. C-

180669,

, where the defendant attempted to murder two police

officers (and actually shot one); Prescott, 8th Dist. Cuyahoga Nos. 107784 and 107789,

, where the defendant was convicted of 14 counts each of

aggravated robbery and kidnapping, all with gun specifications, for eight separate

events, when the defendant or his accomplices pistol whipped a victim, causing serious

injuries; Consiglio, 7th Dist. Mahoning No. 21 MA 0066,

,

where the defendant assaulted a police officer and raped his grandmother; and Steele,

5th Dist. Delaware No. 21 CAA 11 0061,

, where a jury convicted

the defendant of five counts of unlawful sexual conduct with a minor and two counts

of rape.

{¶100} To be clear, we do not suggest that under the facts of this case, the trial

court could not have stacked some of the sentences. Rather, we are firmly convinced

that the record does not support the trial court’s proportionality finding based on it

stacking all the aggravated-robbery and gun-specification sentences.

{¶101} The lack of physical harm, combined with Glover’s lack of criminal

history, firmly convinces us that the trial court erred by finding that a 60-year sentence

was proportionate to his conduct and the danger he poses to the public. This is

especially true because before trial, the state offered 15 years in exchange for a guilty

plea, and after trial, the state recommended a 20- to 25-year sentence.

32 OHIO FIRST DISTRICT COURT OF APPEALS

{¶102} Simply put, a 60-year sentence—akin to a life sentence—was

disproportionate to Glover’s criminal history, danger he posed to the public, and

offenses.

6) R.C. 2953.08(G)(2) permits this court to modify Glover’s sentences

{¶103} Because we found that the record clearly and convincingly did not

support the trial court’s proportionality finding, R.C. 2953.08(G)(2) permits us to

increase, reduce, or otherwise modify a sentence.

{¶104} Before trial, the state and the victims agreed to a 15-year sentence if

Glover pleaded guilty. And after trial, the state, citing the wishes of some of the victims

and officers, recommended a sentence of between 20 and 25 years. We agree that a

25-year sentence is appropriate.

{¶105} We note that Glover’s appeal did not specifically mention the

consecutive sentencing for the gun specifications. And for penalty-enhancing

specifications, a trial court need not make consecutive-sentencing findings. See, e.g.,

State v. James,

,

, ¶ 47 (8th Dist.) (“With there being no

requirement in R.C. 2929.14(B)(1)(g) for the court to make findings of any kind before

ordering a third penalty enhancing specification to be served consecutively, the court

had no obligation to make any findings.”). Nevertheless, the consecutive nature of the

gun specifications is relevant to our proportionality determination because we

consider the aggregate sentence.

{¶106} Therefore, because the trial court’s proportionality findings were clearly

and convincingly unsupported by the record, we default to a single seven-year

sentence for aggravated robbery. The sentences for the six firearm specifications, three

years each, shall be served before the aggravated-robbery sentence and consecutive to

33 OHIO FIRST DISTRICT COURT OF APPEALS

each other and the seven-year aggravated-robbery term. Accordingly, we order the

trial court to impose an aggregate sentence of 25 years of incarceration.

{¶107} We sustain Glover’s sixth assignment of error and remand this cause to

the trial court to enter a 25-year sentence consistent with this opinion.

III. CONCLUSION

{¶108} We sustain Glover’s sixth assignment of error and remand the cause to

the trial court to enter an aggregate term of 25 years of incarceration, consistent with

this opinion. We affirm the trial court’s judgment in all other respects.

Judgment affirmed in part and reversed in part, and cause remanded.

BERGERON, P.J., and CROUSE, J., concur.

Please note: The court has recorded its own entry this date.

34

[Cite as State v. Glover,

.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-220088 TRIAL NO. B-2003890 Plaintiff-Appellee, :

vs. : O P I N I O N.

TOMMY GLOVER, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part and Reversed in Part, and Cause Remanded

Date of Judgment Entry on Appeal: April 7, 2023

Melissa A. Powers, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Arenstein & Gallagher and Elizabeth Conklin, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

BOCK, Judge.

{¶1} Tommy Glover appeals his convictions for six counts of aggravated

robbery and five counts of kidnapping, all with firearm specifications, for robbing and

kidnapping five different individuals at gunpoint. Raising six assignments of error,

Glover challenges the trial court’s ruling that the photo lineup was not unduly

suggestive, admission of a videotape of him holding a gun and smoking marijuana,

and the in-court identifications of Glover. He further argues that the convictions were

based on insufficient evidence and against the manifest weight of the evidence. Finally,

he contends that the record does not support the sentences imposed by the trial court.

For the following reasons, we affirm the trial court’s judgment in part, reverse the

judgment in part, and remand the cause to the trial court.

I. FACTS AND PROCEDURE

{¶2} The state indicted Glover for a string of alleged robberies and

kidnappings. It accused Glover of forcing Andrew Schuur to drive to various ATMs and

withdraw cash on two occasions; robbing Janet McNamara of cash at gunpoint in her

car and forcing her to drive for ten minutes; robbing Robert Matanguihan at gunpoint,

taking his phone and car; and forcing Maya Bolander and Jacob Moretine, at gunpoint,

to drive to ATMs and stealing $800 from Moretine’s bank account.

A. Pretrial Motions

{¶3} Glover moved to suppress a photo lineup identification made by

McNamara, alleging that the lineup was unduly suggestive because her identification

was based on having seen Glover’s photo on the news following his arrest. Glover also

filed a motion in limine to prohibit the state from showing the jury a video from

Glover’s cell phone of Glover holding a gun while smoking marijuana.

2 OHIO FIRST DISTRICT COURT OF APPEALS

{¶4} McNamara was the sole witness at the hearing. She testified that she

first met with police at the St. Bernard police station immediately after she was

kidnapped and robbed. McNamara described the robber as a black male, wearing a

maroon T-shirt, black shorts, and white gym shoes. She had a very good look at him—

he was not wearing a mask and sat next to her in the passenger seat of her car for five

to ten minutes. At that time, McNamara told the police that she was scared to death

and just wanted to leave the station. A few months later, McNamara learned from a

patient that a news piece discussed police arresting a suspect who had committed

crimes similar to her experience. She called the police and agreed to view a photo

lineup in August 2020. After viewing the lineup, McNamara identified Glover as the

person who had robbed her.

{¶5} At the hearing, McNamara testified that she had never seen Glover’s

photo before the lineup and had not seen his photo on the news. When she initially

saw his photo, she was afraid because she knew it was him. McNamara confirmed that

an officer noted in the lineup page that McNamara was “visibly stressed, scared, and

worried about stating 100% certainty.” McNamara wrote that she was “100% certain

that he is the one.” The trial court overruled Glover’s motion to suppress.

{¶6} Turning to the motion in limine, Glover sought to prohibit the state from

playing a video from his phone of Glover wearing a black jacket with a reflective stripe

on the arm, smoking marijuana, and holding a gun. Glover argued the video was more

prejudicial than probative. In response, the state maintained that the cell phone video

linked Glover to the Schuur robbery and submitted still photos from an ATM video of

the robbery. In the photos, Schuur’s assailant is seen wearing a jacket that appeared

to match the jacket from Glover’s video. Ultimately, the court determined that the

3 OHIO FIRST DISTRICT COURT OF APPEALS

probative value of identifying Glover “in a very distinctive jacket” outweighed any

prejudice and overruled the motion in limine.

B. The Bench Trial

1) Schuur Robberies

{¶7} At the bench trial, Schuur testified that he was robbed on two separate

occasions. Schuur recalled that in May 2020, he was walking in his neighborhood

when two men asked him for directions. Schuur identified Glover as one of the men.

According to Schuur, Glover held him at gunpoint while the other man stole his wallet.

Schuur described being forced into the driver’s seat of his car and Glover instructing

him to drive to three different ATMs, where Schuur withdrew $500, $500, and $300.

Glover told Schuur to drive across town and fled at a stop sign. Based on his 45-minute

encounter, Schuur described Glover as a heavy-set black male with short hair and

facial hair, dressed in a hooded sweatshirt and jacket.

{¶8} Then, about a month later, Schuur was walking to his car when a man

wearing a black mask and a green shirt approached him with a gun. Schuur believed it

was the same man from the May robbery, recognizing his voice and body-type. Again,

Schuur was forced to drive to ATMs and withdrew $500, $500, and $300. Schuur was

with Glover for 20-25 minutes.

{¶9} In July 2020, police showed Schuur a lineup but he could not positively

identify anyone as his assailant, despite a slight resemblance in two photographs. In

August 2020, police showed Schuur another lineup. This time, he was 90 percent

certain that Glover was the perpetrator. The second photograph resembled his

assailant, but Schuur was only 30 percent confident in his identification. While two

other photos resembled his kidnapper, he was only 50 percent confident in those

4 OHIO FIRST DISTRICT COURT OF APPEALS

identifications. Schuur wrote, “There was one that I’m almost certain is the guy, and

others I am not so certain about.” But in court, Schuur identified Glover with 100

percent certainty.

{¶10} Detective Keith Ingram of the St. Bernard Police Department testified

that, as the primary investigator, he retrieved video and still photographs from a PNC

Bank ATM where Schuur was robbed. In the photos and video, Schuur can be seen

withdrawing money as he stood next to a man with a black-hooded sweatshirt with

reflective embossing on the sleeves.

{¶11} In his investigation, Ingram learned that Glover was arrested in August

for robberies in Norwood, Ohio. Police recovered three cell phones from Glover. After

forensic testing, cell phone location data (“pings”) placed Glover in the area of both

Schuur robberies. Indeed, the pings showed Glover walking the location in St. Bernard

where Schuur was kidnapped in May and placed Glover in the area where Schuur

dropped off the robber in June. The police also recovered a small bag and a video from

Glover’s phone. The video showed Glover wearing the same sweatshirt depicted in the

ATM photos. Over objection, the state played the video.

2) McNamara Robbery

{¶12} McNamara testified that in June 2020, when she left work and got into

her car, two men approached her car and opened her passenger-side doors. She

recalled a heavy-set black man with short black hair and facial hair getting into the

front seat and demanding money at gunpoint.1 McNamara testified that she “will never

forget his face.” As he rifled through her purse, McNamara begged for her life. He took

$10-$15 from her wallet and demanded she drive to an ATM, despite McNamara

1 McNamara testified that the second man never entered her car.

5 OHIO FIRST DISTRICT COURT OF APPEALS

telling him there was no money in her account. After ten minutes, he fled.

{¶13} Immediately afterwards, McNamara, now terrified, met with the St.

Bernard police but, in her frightened state, she was not able to identify the man who

robbed and kidnapped her. In August, she returned to view a photo lineup and

identified Glover with 100 percent certainty. McNamara also identified Glover in court

as her robber.

{¶14} Detective Ingram testified that a St. Bernard police related-incidents

document described a July phone call from McNamara where she informed police that

she recognized the man who robbed her from a Channel 12 news report.

3) Norwood Robberies

{¶15} Robert Matanguihan testified that he was accosted near his car in

Norwood by two men. According to Matanguihan, one of the two men was heavy-set

and appeared to give orders to the younger, skinnier man. Both had guns and

threatened to shoot Matanguihan. They demanded money, his phone, his car keys, and

his bank card. After learning that Matanguihan had no money and his bank account

was overdrawn, they stole his Chevy Aveo, which was eventually recovered a block

from his home with no damage to the car and nothing missing. The encounter lasted

roughly three minutes. Matanguihan was unable to identify the perpetrators from a

photo lineup or in court.

{¶16} Shortly after Matanguihan’s car was stolen, Jacob Moretine and Maya

Bolander were parked outside of Moretine’s house when two men emerged and

approached their car. One man wore a facemask with clown print and carried a bag.

The other man was thinner.

6 OHIO FIRST DISTRICT COURT OF APPEALS

{¶17} The men forced Moretine and Bolander, at gunpoint, into Moretine’s

car and forced Moretine to drive. Moretine recalled Glover tossing a cell phone out of

the car window during the drive. According to Moretine, Glover and his partner were

laughing about robbing another man of his cell phone near Moretine’s house.

{¶18} Over the course of two hours, the men forced Moretine to drive to three

ATMs. Glover accompanied Moretine to the first two ATMs while Glover’s partner held

Bolander at gunpoint. While Glover was able to withdraw money from Moretine’s

account at the first two ATMs, he was unable to withdraw money from Bolander’s

account at the third. Glover demanded that Moretine drive to Avondale, where Glover

and his partner took Bolander’s and Moretine’s cell phones and fled.

{¶19} Moretine and Bolander provided to police descriptions of the

perpetrators, which matched Matanguihan’s. In particular, Moretine described the

perpetrator as a heavy-set man with spiderwebs tattooed on his hands, wearing a face

mask decorated with clown print. Moretine confirmed that a photo of Glover’s hands

depicted the tattoos he saw.

{¶20} Moretine and Bolander were unable to positively identify anyone from

a photo lineup. While Moreline was not 95 percent certain, Moretine did recognize

Glover from his photo. But in court, Moretine identified Glover as the perpetrator with

100 percent certainty. And when shown a photo lineup, Bolander identified another

man as the perpetrator with 90 percent confidence. But in court, she identified Glover

as the gunman.

4) The Norwood Investigation

{¶21} Sergeant Matt Klingelhoffer from the Norwood Police Department was

assigned to investigate the robberies. He reached out to Detective Ingram after

7 OHIO FIRST DISTRICT COURT OF APPEALS

learning about the St. Bernard robberies. In each case, the suspect descriptions were

similar.

{¶22} Two of the banks where Moretine had been forced to stop provided

Klingelhoffer photos from their ATMs. The photos showed the suspect wearing a clown

face mask and a blue hoodie, with a black Nike bag worn across his chest.

{¶23} A little more than a month later, in August 2020, a Norwood resident

had reported that she and her husband became uncomfortable after seeing a man

wearing a face mask and a Nike bag slowly walking down Williams Avenue. Officers

dispatched to the scene found Glover nearby. When the officers asked to speak with

Glover, he briefly fled before being taken into custody. They released him at the scene.

{¶24} After comparing the body-camera footage from August 2020 with the

ATM photos, Klingelhoffer concluded that Glover was the person in the ATM photos.

{¶25} Officer Robert Wilsman of the Cincinnati Police Department testified

that he responded to a report of a possible robbery suspect walking down Reading

Road in August 2020. When Wilsman spotted Glover and exited from his car, Glover

fled before he was ultimately arrested. The state played Wilsman’s body-camera

footage in court, which showed Glover wearing the Nike bag.

{¶26} While in jail, Glover made phone calls. In one, Glover asked the other

person on the line, “Do they have my face on there?”

5) Glover’s testimony

{¶27} Glover testified that he did not commit any of the crimes. Glover

admitted that the person in the ATM photo had a Nike bag similar to his and wore it

in a similar fashion, but denied that was him. Glover also admitted that he owned a

black hooded sweatshirt with metallic stripes. He agreed that his sweatshirt was the

8 OHIO FIRST DISTRICT COURT OF APPEALS

same brand as the one in the photo, and that they looked similar, but pointed out a red

liner on the inside of the hoodie in the photograph. Finally, Glover testified that each

in-court identification was a lie.

6) The Verdicts and Sentences

{¶28} The trial court found Glover guilty of six counts of aggravated robbery

in violation of R.C. 2911.01(A)(1), and five counts of kidnapping in violation of R.C.

2905.01(A)(2), with each count carrying two penalty-enhancing gun specifications.

The court found that the same person committed the offenses due to the similar modus

operandi, methodology, physical descriptions, location proximity, and attempt to get

money from ATMs.

{¶29} Beginning with the Schuur robberies, Schuur identified Glover with 90

percent certainty when shown a photo lineup, his in-court identification was credible,

and the perpetrator’s jacket in the ATM photo matched the jacket worn by Glover in

his cell-phone video. Turning to the McNamara robbery, her identification of Glover

was believable and credible. The offenses occurred in the same area as the offenses

against Schuur with the same modus operandi. While Matanguihan could not identify

Glover, his car and phone were stolen, and his car was immediately discarded one

street away from the location where Glover encountered Bolander and Moretine. And

Bolander’s and Moretine’s in-court identifications and testimonies were credible. Plus,

the ATM photos clearly depicted Glover. Glover was also identifiable by the Nike bag

and tattoos. In addition, the trial court cited Glover’s attempt to flee from the police

and jail call admission.

{¶30} During the mitigation portion of the sentencing hearing, Glover

requested an aggregate 12-to-15-year sentence, citing the lack of physical harm to the

9 OHIO FIRST DISTRICT COURT OF APPEALS

victims and his lack of prior felony convictions. Based on the victims’ and officers’

wishes, the state recommended a 20-to-25-year sentence. The presentence-

investigation report stated that Glover was adjudicated delinquent as a juvenile for

Toledo’s Safe School Ordinance, but did not include any facts underlying that

adjudication. See Toledo Municipal Code 537.16.

{¶31} The trial court found that consecutive sentences were necessary to

protect the public and punish the offender and not disproportionate to the conduct.

The court further found that the harm caused by two or more of the offenses was so

great or unusual that no single prison term adequately reflected the seriousness of

Glover’s conduct. Finally, the court found that the offenses were committed as part of

a course of conduct, and Glover’s criminal history, which “shows violence in school,”

demonstrated that consecutive sentences were necessary to protect the public.

{¶32} The trial court sentenced Glover to seven years on each underlying

felony and three years on each gun specification, with each specification to be served

consecutively and before the sentences imposed on the underlying offenses. The

sentences for the aggravated robbery counts were to be served consecutively to each

other and the kidnapping sentences were to be served concurrently to each other and

the other sentences, for an aggregate term of 60 years’ incarceration.

II. LAW AND ANALYSIS

A. McNamara’s lineup identification was admissible

{¶33} In his first assignment of error, Glover contends that the trial court

violated his due-process rights by denying his motion to suppress McNamara’s

identification.

{¶34} Appellate review of a motion to suppress presents a mixed question of

law and fact. State v. Burnside,

,

,

,

10 OHIO FIRST DISTRICT COURT OF APPEALS

¶ 8. An appellate court must accept the trial court’s findings of fact if they are

supported by some competent, credible evidence.

Accepting those facts as true, the

appellate court must then independently determine, without deference to the trial

court’s judgment, whether the facts satisfy the applicable legal standard.

{¶35} “Due process requires suppression of pre-trial identification of a

suspect only if the identification procedure was so impermissibly suggestive as to give

rise to a very substantial likelihood of misidentification.” Neil v. Biggers,

,

196-197,

,

(1972).

{¶36} The defendant must demonstrate that the lineup was unduly suggestive.

“A lineup is unduly suggestive if it steers the witness to one suspect, independent of

the witness’s honest recollection.” (Citations omitted.) State v. Adams,

,

,

, ¶ 208. “When the questionable circumstances of

an identification procedure are not due to state action, the reliability of the

identification is a question going to the weight of the testimony, not its admissibility.”

Id. at ¶ 209.

{¶37} Glover argues that McNamara’s identification was tainted because she

saw his mugshot on the news. To support this assertion, Glover relies on the police

report written by an unnamed St. Bernard police officer. The report memorialized a

phone call from McNamara to the St. Bernard police in which, according to the report,

she stated that she saw the person who had robbed her on a Channel 12 news story.

{¶38} But McNamara testified at the suppression hearing that she had not

seen any news reports about Glover. Instead, McNamara testified that one of her

patients had seen a news report and informed her that the police had arrested someone

for committing crimes similar to the crime committed against her.

11 OHIO FIRST DISTRICT COURT OF APPEALS

{¶39} Glover makes no showing that the state employed an unduly suggestive

procedure. Because the lineup was not unduly suggestive, it was admissible. The

identification’s reliability was an issue for the trier of fact to decide. See State v.

Savage, 1st Dist. Hamilton No. C-180413,

, ¶ 36. We overrule Glover’s

first assignment of error.

B. The trial court properly admitted the video of Glover

{¶40} Glover’s second assignment of error asserts that the trial court erred in

admitting video evidence of him holding a gun and smoking marijuana.

{¶41} Evid.R. 404(B)(1) prohibits evidence of a defendant’s other acts when

its only purpose is to show the defendant’s propensity or character to commit crimes.

Evid.R. 404(B)(2) allows evidence of the defendant’s other crimes, wrongs, or acts to

be admitted for other purposes, “such as proving motive, opportunity, intent,

preparation, plan, knowledge, identity, absence of mistake, or lack of accident..” The

admissibility of other-acts evidence is a question of law that this court reviews de novo.

State v. Hartman,

,

,

, ¶ 22. But we

review the trial court’s weighing of the probative value of admissible evidence against

the danger of unfair prejudice to the defendant for an abuse of discretion. Id. at ¶ 30.

{¶42} To determine whether other-acts evidence is admissible, the first step is

to determine whether the evidence is relevant to the particular purpose for which it is

offered and whether it is relevant to an issue in dispute. Id. at ¶ 26-27. If the evidence

passes the relevancy test, the final step is to consider whether the value of the evidence

“is substantially outweighed by the danger of unfair prejudice, of confusion of the

issues, or of misleading the jury.” Id. at ¶ 29.

12 OHIO FIRST DISTRICT COURT OF APPEALS

{¶43} The state sought to admit the video from Glover’s phone to establish the

identity of the person who kidnapped and robbed Schuur. The perpetrator’s identity

was a material issue in this case and the video depicted Glover wearing a distinctive

jacket that appeared to match the jacket worn by the individual who kidnapped and

robbed Schuur. Thus, the evidence was relevant to identity, the particular purpose for

which it was offered.

{¶44} Next, this court must determine whether the evidence’s probative value

was substantially outweighed by the danger of unfair prejudice under Evid.R. 403(A).

Probative evidence is subject to exclusion where the evidence “might result in an

improper basis for a jury decision,” such as where “the evidence arouses the jury’s

emotional sympathies, evokes a sense of horror, or appeals to an instinct to punish[.]”

State v. Worley,

,

,

, ¶ 125. But

because this was a bench trial, “we presume that the court considered only ‘relevant,

material and competent evidence’ unless the record affirmatively discloses otherwise.”

State v. Pennington, 1st Dist. Hamilton Nos. C-170199 and C-170200, 2018-Ohio-

3640, ¶ 46, quoting State v. Post,

, 384,

(1987).

{¶45} Before admitting the video, the trial court acknowledged the prejudicial

effect of the gun but found that “the identifying features of the jacket outweighs the

prejudice.” We presume that the trial court did not consider improper evidence in

reaching its verdict. State v. Arnold,

,

,

, ¶ 39. The record contains no evidence that the trial court improperly considered

the gun or the marijuana in reaching its verdict. Therefore, we overrule Glover’s

second assignment of error.

C. Witnesses’ in-court identifications were not unduly suggestive

13 OHIO FIRST DISTRICT COURT OF APPEALS

{¶46} Glover’s third assignment of error asserts that the victims’ in-court

identifications were unduly suggestive and unreliable because the identifications were

influenced by the fact that he was the only heavy-set black man wearing a jail jumpsuit

in the courtroom when the identifications were made. Glover further contends that the

admission of the identifications was plain error that affected the outcome of the trial

and resulted in a manifest miscarriage of justice.

{¶47} Glover acknowledges that he did not object to the in-court

identifications and that his claim is subject to a plain-error review. To prevail on a

plain-error claim, an accused must show that an error occurred, that the error was

plain, and that the error affected the outcome of the trial. See Crim.R. 52(B). A

reviewing court should employ the “utmost caution” and find plain error only “under

exceptional circumstances and only to prevent a miscarriage of justice.” State v. Long,

,

(1978), paragraph three of the syllabus.

{¶48} “An identification derived from unnecessarily suggestive procedures,

which have a likelihood of leading to a misidentification, violates a defendant’s right

to due process.” Neil v. Biggers,

,

,

(1972).

Whether the Due Process Clause requires a trial court to suppress an eyewitness

identification involves a two-step inquiry. State v. Stidhum, 1st Dist. Hamilton No. C-

170319,

, ¶ 36 (finding that a witness’s in-court identification was

admissible). First, the defendant must establish that the identification procedure used

by the state was “both suggestive and unnecessary.”

If there is no showing that the

state employed an unnecessarily suggestive procedure to obtain the identification,

then the unreliability of the identification alone will not preclude its admission at trial.

Id. at ¶ 38. “Instead, such unreliability should be exposed through the rigors of cross-

14 OHIO FIRST DISTRICT COURT OF APPEALS

examination at trial and the protections built into the adversary system, such as the

right to the effective assistance of counsel, the right to confront the witness, and the

rules of evidence.” Id. “Therefore, in-court identifications, where there has been no

prior unlawful or unnecessarily suggestive police conduct, are properly admitted.”

State v. Berry, 10th Dist. Franklin No. 18AP-9,

, ¶ 25.

{¶49} To the extent that Glover argues that when identity is an issue in a case,

in-court identifications are inherently suggestive and unreliable, he cites to no

controlling legal authority to support this contention. Moreover, Glover made no

showing that the procedure employed by the state was unduly suggestive.

{¶50} Glover has not shown that the trial court’s admission of the witnesses’

in-court identifications amounted to error, much less plain error. As such, any

unreliability of the in-court identifications was an issue of weight, not admissibility.

We overrule the third assignment of error.

D. The convictions were supported by sufficient evidence and not against the manifest weight of the evidence

{¶51} In his fourth and fifth assignments of error, which he argues together,

Glover contends that his convictions were based on insufficient evidence and contrary

to the manifest weight of the evidence.

{¶52} A challenge to the sufficiency of the evidence presents this court with a

question of law that we review de novo. State v. Dent,

, 2020-Ohio-

6670,

, ¶ 15, quoting State v. Thompkins,

, 386,

(1997). The test for determining the sufficiency of the evidence is whether

“after viewing the probative evidence and inferences reasonably drawn therefrom in

the light most favorable to the prosecution, any rational trier of fact could have found

all the essential elements of the offense beyond a reasonable doubt.” State v.

15 OHIO FIRST DISTRICT COURT OF APPEALS

MacDonald, 1st Dist. Hamilton No. C-180310,

, ¶ 12, quoting State v.

Martin,

,

(1st Dist. 1983).

{¶53} In reviewing a weight-of-the-evidence claim, we review “ ‘the entire

record, weigh the evidence and all reasonable inferences, consider the credibility of

the witnesses and determine whether, in resolving conflicts in the evidence, the [trier

of fact] 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. Bailey, 1st Dist.

Hamilton No. C-140129,

, ¶ 59, quoting State v. Thompkins,

,

(1997). “This court will not substitute its judgment for that

of the trier of fact on the issue of witness credibility unless it is patently apparent that

the trier of fact lost its way in arriving at its verdict.” Bailey at ¶ 63.

{¶54} Glover challenges the reliability of his identification as the perpetrator

because the clothing identified by the victims was different in each offense, the

locations were different, the number of perpetrators and their locations in the cars

were different, the face coverings were different, the presence of tattoos was different,

the identifications were inconsistent or wrong, the ATM photos and video were blurry,

and there was no fingerprint or DNA evidence that connected Glover to the crimes.

{¶55} Glover generally challenges the state’s proof, citing the lack of physical

evidence such as fingerprints or DNA test results. But the state is not required to

present physical evidence to meet its burden of proof. See State v. Jeffries, 2018-Ohio-

2160,

, ¶ 72 (1st Dist.) (concluding that “the state is not required to

present corroborating DNA test results or other corroborating physical evidence to

meet its burden of proof, even in a rape case.”); State v. Nix, 1st Dist. Hamilton No. C-

030696,

, ¶ 67 (finding that the record contained more than sufficient

16 OHIO FIRST DISTRICT COURT OF APPEALS

evidence in the form of witness testimony to sustain the charges against the

defendant).

{¶56} We find that the state’s evidence sufficiently supported the convictions.

Two witnesses identified Glover before trial. Two other witnesses identified Glover at

trial. The fifth victim could not identify Glover, but his car was recovered near where

the next two victims were robbed and kidnapped. The modus operandi of the crimes

was similar, as were the descriptions of the perpetrators. This evidence was sufficient

to support Glover’s convictions.

{¶57} Glover further argues that the trial court erred in weighing the evidence,

clearly lost its way, and created a manifest miscarriage of justice because the witness

identifications were unreliable. “It is well settled that the responsibility of weighing

the credibility of a witness rests with the fact-finder.” Johnson v. Abdullah,

,

,

, ¶ 6.

{¶58} The trial court, as the finder of fact, was entitled to believe all, some, or

none of the witnesses’ testimony. State v. Simmons,

,

,

¶ 35 (10th Dist.). The trial court heard the testimony and found the witnesses’

testimony to be credible. There is nothing in the record to suggest that the trial court

clearly lost its way and created such a manifest miscarriage of justice as to warrant

reversal. This is not one of those rare, exceptional cases in which the evidence weighs

heavily against conviction. Accordingly, we overrule the fourth and fifth assignments

of error.

E. The record does not support six consecutive sentences

{¶59} In his sixth assignment of error, Glover, who was 23 years old at the

time of sentencing, asserts that the record does not support the trial court’s imposition

17 OHIO FIRST DISTRICT COURT OF APPEALS

of consecutive sentences, for an aggregate sentence of 60 years, which is tantamount

to a life sentence.

{¶60} Before trial, the state offered Glover a 15-year prison term in exchange

for a guilty plea. Glover declined, instead choosing to exercise his constitutional right

to a jury trial. After trial, the prosecutor told the trial court, “At a minimum I do not

think that whatever sentence the Court imposes for each victim should run consecutive

with each other. These were separate incidents, separate dates.” And the state, based

on the victims’ and officers’ wishes, recommended a sentence of between 20 and 25

years.

{¶61} We agree with the state’s position at trial and with Glover. Because we

clearly and convincingly find that the record does not support the trial court’s findings

involving the proportionality of Glover’s aggregate sentence to the seriousness of his

conduct and the danger he poses to the public, we sustain Glover’s sixth assignment

of error.

1) The record must support imposition of consecutive sentences {¶62} Ohio law contains a statutory presumption of concurrent sentences for

defendants convicted of multiple offenses. State v. Galinari, 1st Dist. Hamilton No. C-

210149,

, ¶ 9. “The general principle set forth in the Revised Code is

that concurrent sentences are the default and consecutive sentences are the

exception.” State v. Hitchcock,

,

,

,

¶ 21.

{¶63} “Consecutive sentences are reserved for the worst offenses and

offenders.” State v. Comer,

,

,

, ¶ 21,

18 OHIO FIRST DISTRICT COURT OF APPEALS

abrogated on other grounds, State v. Foster,

,

,

, paragraph three of the syllabus (statutorily-mandated judicial factfinding

violated defendants’ right to a jury trial).

{¶64} Because consecutive sentences are the exception and should be reserved

for the most serious offenders and offenses, the legislature requires a sentencing court

to make the mandatory sentencing findings prescribed by R.C. 2929.14(C)(4). See

Galinari at ¶ 9, citing State v. McKinney, 1st Dist. Hamilton No. C-210276, 2022-

Ohio-849, ¶ 11. A trial court must make three distinct findings: 1.) “the consecutive

service is necessary to protect the public from future crime or to punish the offender;”

2.) “consecutive sentences are not disproportionate to the seriousness of the offender’s

conduct and to the danger the offender poses to the public,” and 3.) one or more of

R.C. 2929.41(C)(4)’s subsections apply. R.C. 2929.14(C)(4).

{¶65} Relevant here, R.C. 2929.41(C)(4)’s subsections require the court to find

that either 1.) two or more offenses were committed as part of a course of conduct and

the harm caused by the offenses was so great or unusual that a single prison term

cannot adequately reflect the seriousness of the offender’s conduct; or 2.) the

offender’s criminal history demonstrates that consecutive sentences are needed to

protect the public from the defendant committing future crimes. R.C.

2929.41(C)(4)(b) and (c).

{¶66} To determine compliance with R.C. 2929.14(C)(4), we examine

whether: 1.) the trial court engaged in the correct analysis, and 2.) the record contains

evidence to support the trial court’s findings. State v. Bonnell,

,

,

, ¶ 29. The trial court must state the required findings

at the sentencing hearing and incorporate those findings into the sentencing entry.

19 OHIO FIRST DISTRICT COURT OF APPEALS

There is no dispute that the trial court made the requisite findings. Instead, Glover’s

argument on appeal is that the record does not support the trial court’s findings.

2) Ohio law permits appellate courts to modify imposition of consecutive sentences that are clearly not supported by the record

{¶67} Appellate review of consecutive sentences is governed by R.C.

2953.08(G)(2). See State v. Marshall, 1st Dist. Hamilton Nos. C-190748 and C-

190758,

, ¶ 48, citing State v. Gwynne,

, 2019-Ohio-

4761,

, ¶ 16.

{¶68} R.C. 2953.08(G)(2) does not permit appellate courts to weigh the

evidence and alter a sentence under R.C. 2929.11 and 2929.12. State v. Jones,

,

,

, ¶ 42. Consecutive sentences, however,

being the exception to the general rule, are treated differently.

{¶69} This court may modify or vacate a trial court’s decision to impose

consecutive sentences if we, after reviewing the record, clearly and convincingly find

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

2929.14(C)(4). R.C. 2953.08(G)(2)(a). Put another way, this court may vacate or

modify the trial court’s sentence only “if, upon review of the record, the court is left

with a firm belief or conviction that the findings are not supported by the evidence.”

Gwynne at ¶ 27.

{¶70} Recently, the Supreme Court of Ohio considered two questions

involving consecutive sentences: 1.) under what standard should an appellate court

review the imposition of consecutive sentences; and 2.) are courts required to

“consider the overall aggregate prison term to be imposed when making [R.C.

20 OHIO FIRST DISTRICT COURT OF APPEALS

2929.14(C)(4)] consecutive-sentence findings.” State v. Gwynne, Slip Opinion 2022-

Ohio-4607, ¶ 1.2

{¶71} Regarding the first question, the Gwynne majority held that an

appellate court should review imposition of consecutive sentences de novo.

The

dissent, however, noted that “ ‘[o]rdinarily, appellate courts defer to trial courts’ broad

discretion in making sentencing decisions,’ and R.C. 2953.08(G) reflects that

deference.” Id. at ¶ 52, quoting State v. Rahab,

,

,

, ¶ 10. As will be discussed in detail below, even under a deferential

standard of review, we find that the trial court’s imposition of a 60-year aggregate

sentence was error because we hold a firm belief that the record does not support the

trial court’s findings.

{¶72} Regarding whether a court must consider the aggregate sentence when

making the statutory consecutive-sentences findings, the Gwynne majority answered

affirmatively. Id. at ¶ 1. And while the dissent disagreed that a court must make

findings in considering the aggregate term, it agreed that a trial court considers the

aggregate sentence: “The only reasonable interpretation of R.C. [2929.14(C)(4)] is that

when a trial court is imposing multiple prison terms, it may order a defendant to serve

some or all of those prison terms consecutively if it makes the statutory findings

established by the legislature. * * * When a trial court orders a defendant to serve

multiple consecutive prison terms, of course it knows the amount of time that it has

sentenced the defendant to serve.” (Emphasis added.) Id. at ¶ 67, 70 (Kennedy, J.,

dissenting).

2We note that the state moved for the Supreme Court of Ohio to reconsider its decision in Gwynne. As of the date of this decision, the court has not ruled on the state’s motion.

21 OHIO FIRST DISTRICT COURT OF APPEALS

{¶73} Under the interpretations provided by both the majority and the dissent

in Gwynne, if the sentencing court makes the requisite R.C. 2929.14(C)(4) findings, it

may order some of the sentences be served consecutively or all of the sentences be

served consecutively. Thus, while the majority and dissent in Gwynne disagreed about

whether a trial court must consider the aggregate sentence, they appeared to agree

that a court can consider the aggregate sentence when determining whether to impose

consecutive sentences and if so, how many of the prison terms should be served

consecutively.

{¶74} A trial court, when imposing consecutive sentences, may look to the

aggregate sentence to determine if it is disproportionate to the offender’s criminal

history and offenses. Once a court decides to impose consecutive sentences, it need

not stack all of the sentences. Instead, if it runs sentences consecutively, it should stack

those sentences such that the sentence is proportionate to the seriousness of the

offender’s conduct and to the danger the offender poses to the public.

3) Statutory and case law demonstrate that crimes causing physical harm receive longer sentences

{¶75} As stated above, the Ohio Supreme Court has held that “consecutive

sentences are reserved for the worst offenses and offenders.” Comer,

,

,

, at ¶ 21. And crimes that cause physical and

emotional harm, rather than only emotional harm, generally receive longer sentences.

For example, the penalty for aggravated murder under R.C. 2903.01 (“No person shall

purposely, and with prior calculation and design, cause the death of another or the

22 OHIO FIRST DISTRICT COURT OF APPEALS

unlawful termination of another’s pregnancy.”) is a minimum of life in prison to a

maximum of death. The penalty for murder under R.C. 2903.02 (“No person shall

purposely cause the death of another * * * .”) is an indefinite term of 15 years to life.

R.C. 2929.02(B)(1). Rape of a child aged ten or younger carries a maximum term of

life without parole. R.C. 2907.02. And when a defendant is convicted of a violent sex

offense with a sexually-violent-predator specification, subject to some exceptions, the

court must impose an indefinite prison term of 25 years to life. R.C.

2971.03(A)(3)(d)(1).

{¶76} Moreover, the penalties for violent crimes are enhanced when the victim

suffered serious physical injury. For example, R.C. 2921.331, which prohibits a person

from failing to comply with a lawful order of a police officer, is a misdemeanor or a

fourth-degree felony in all cases except when the offender’s behavior either

proximately caused, or carried a substantial risk of causing, serious physical harm to

persons or property. R.C. 2921.331(C). And R.C. 2919.22, which prohibits endangering

children, is a misdemeanor if the offender has not previously been convicted of an

offense involving neglect, abandonment, contributing to the delinquency of, or

physical abuse of a child. R.C. 2929.331(C)(2)(a)-(b). But the offense is enhanced for

all offenders, regardless of prior convictions, to a second- or third-degree felony if the

offense results in serious physical harm to the child. R.C. 2929.331(C)(2)(c)-(d). And

the statute prohibiting child rape is enhanced for several reasons, including if the

offender caused serious physical harm to the victim. R.C. 2907.02.

{¶77} A selection of Ohio cases in which the offender was convicted of crimes

that caused both physical and emotional harm, such as rape, sexual conduct with

minors, murder, attempted murder, and assault, shows that while courts impose

23 OHIO FIRST DISTRICT COURT OF APPEALS

lengthy sentences, many are shorter than 60 years. E.g., State v. McRae, 1st Dist.

Hamilton No. C-180669,

, ¶ 5 (court sentenced defendant on two

counts of attempted murder of police officers, two counts for having a weapon while

under a disability, one count of carrying a concealed weapon, and assault; his

aggregate sentence was 43.5 years); State v. Patton, 1st Dist. Hamilton No. C-190694,

, ¶ 2 (defendant convicted of two counts of murder with specifications;

aggregate sentence was 24 years to life); State v. Prescott, 8th Dist. Cuyahoga Nos.

107784 and 107789,

, ¶ 2 (defendant convicted of 14 counts each of

aggravated robbery and kidnapping, all with gun specifications, for eight separate

events; one victim was pistol whipped, causing serious injuries, and another victim

was punched in the face; court imposed aggregate 25-year sentence); State v

Washington, 6th Dist. Lucas No. L-19-1190,

, ¶ 4, 10, 15 (trial court

sentenced defendant who brutally raped and assaulted two women to aggregate 28-

year sentence); State v Corey, 11th Dist. Geauga No. 2021-G-0029,

,

¶ 15 (defendant who shot victim four times was convicted of attempted murder,

firearm specifications, and tampering with evidence; trial court sentenced him to

aggregate term of ten-15 years); Galinari, 1st Dist. Hamilton No. C-210149, 2022-

Ohio-2559, at ¶ 2, 4 (defendant attacked a teenager and an adult with an aluminum

bat; trial court sentenced him to an aggregate 13-year term); Ohio v. Jones, 2d Dist.

Montgomery No. 28977,

, ¶ 1 (defendant broke into three women’s

homes, raped two of the women by gunpoint, and forced one to take fentanyl; after

jury convicted the defendant of aggravated burglary with a deadly weapon, aggravated

burglary causing physical harm, two counts of rape, two counts of kidnapping, and one

count of aggravated robbery with a deadly weapon, the court sentenced him to an

24 OHIO FIRST DISTRICT COURT OF APPEALS

aggregate term of 39 years); State v. Polizzi,

,

,

, ¶ 36 (defendant-teacher was convicted of gross sexual imposition and

six counts of sexual battery for inappropriate relationships with his high school

students; appellate court found that 33-year sentence would demean the seriousness

of more serious crimes, such as rape and murder); State v. Consiglio, 7th Dist.

Mahoning No. 21 MA 0066,

, ¶ 1-2 (defendant convicted of rape,

attempted rape, aggravated robbery, robbery, theft from a person in a protected class,

and domestic violence against his 79-year-old grandmother, plus assaulting a police

officer; court merged allied offenses and sentenced him to indefinite term of 19.5 to 25

years’ incarceration); State v. Steele, 5th Dist. Delaware No. 21 CAA 11 0061, 2022-

Ohio-712, ¶ 1 (court sentenced defendant convicted by a jury of five counts of unlawful

sexual conduct with a minor, two counts of rape, and one count of gross sexual

imposition to an aggregate prison term of 22 years).

{¶78} A review of cases in which a defendant was convicted of crimes that

caused emotional trauma, but no or minimal physical harm, showed that courts often

impose significantly shorter sentences than 60 years, even when there are multiple

offenses and victims. See, e.g., State v. Pattson, 2d Dist. Montgomery Nos. 29028 and

29029,

(defendant who broke into a home and threatened to kill at

gunpoint the two adults and their young children, shot the family’s puppy, and forced

the woman by gunpoint to drive her vehicle to an ATM to withdraw cash, stole her car,

and left her in an alley, was convicted of aggravated burglary, two counts of aggravated

robbery, one count of kidnapping, one count of having weapons under a disability, two

counts of aggravated menacing, one count of cruelty to a companion animal, and one

count of grand theft; the trial court imposed an indefinite sentence of 12 to 15 years);

25 OHIO FIRST DISTRICT COURT OF APPEALS

State v. Cremeans, 5th Dist. Muskingum No. CT2015-0062,

(a

defendant with multiple prior convictions for violent offenses received an aggregate

30-year sentence for multiple counts of aggravated burglary, kidnapping, aggravated

robbery, and having weapons under a disability after he entered the home where three

adults and four children were present, waved guns around, threatened an adult, and

tied up two children and two adults); State v. Justice, 2d Dist. Montgomery No. 23744,

(defendant was found guilty of four counts of aggravated robbery,

five counts of aggravated burglary, four counts of kidnapping, and two counts of

having weapons under disability, some charges with firearm specifications; court

sentenced him to a seven-year prison term); State v. Rogers, 8th Dist. Cuyahoga No.

92380,

(defendant convicted of three counts of aggravated burglary,

with one- and three-year firearm specifications, and three counts of kidnapping, with

one- and three-year firearm specifications, for taking money from four victims at

gunpoint; trial court imposed aggregate six-year prison term).

{¶79} Under this backdrop, we turn to whether, after reviewing the record, we

clearly and convincingly find that the record does not support the trial court’s findings

under R.C. 2929.14(C)(4).

4) The record clearly and convincingly does not support the trial court’s findings under R.C. 2929.14(C)(4)

{¶80} Glover argues that his aggregate sentence is excessive and the trial

court’s R.C. 2929.14(C)(4) findings were not supported by the record. The trial court

ran consecutively Glover’s six aggravated-robbery sentences (seven years each) and

each underlying charge’s gun specification (three years each), for an aggregate 60-year

26 OHIO FIRST DISTRICT COURT OF APPEALS

sentence. The trial court told Glover that “[t]he sentence I’ve imposed is the sentence

you will serve without any good-time reduction.”

{¶81} As discussed above, a trial court, before imposing consecutive

sentences, must find all three of the R.C. 2929.14(C)(4) factors. Therefore, if a

reviewing court determines that the record clearly and convincingly does not support

any one of the three findings, it must modify the aggregate sentence.

{¶82} Here, the trial court stated that the sentences were “consecutive to each

other because one sentence is really not sufficient for the crime that you committed.”

It found that the sentence “is most appropriate to punish you for the crimes that you

did.” It noted that Glover had not taken responsibility and was not amenable to

change.

{¶83} Next, the court found that Glover had committed two or more offenses

as part of a course of conduct and the harm caused was so great or unusual that no one

term would reflect the seriousness of Glover’s conduct. It also found that Glover had a

criminal history of violence in school.

{¶84} Finally, regarding proportionality, the trial court stated, “I feel that you

do have a criminal history which shows violence in school. And I do feel that I need to

protect the public. And I do feel [it’s] necessary to protect the public, and to punish the

offender, and it is not disproportionate to the seriousness of the offender’s conduct

and danger the offender poses to the public.” The trial court discussed the fact that

Glover did not live in Hamilton County, did not appear to be supporting his children,

was unemployed, and showed no remorse.

{¶85} We hold that the trial court’s findings involving proportionality under

R.C. 2929.14(C)(4) and criminal history under R.C. 2929.14(C)(4)(c) were clearly and

27 OHIO FIRST DISTRICT COURT OF APPEALS

convincingly not supported by the record.3 While we believe that Glover’s conduct was

serious and caused his victims significant emotional trauma, his conduct does not

justify imposing consecutive sentences on all the aggravated robbery charges and

specifications, for an aggregate 60-year sentence. Imposing a sentence akin to life in

prison on a 23-year-old man, under the facts and circumstances in this case, clearly

was not supported by the record.

5) The trial court’s 60-year sentence was disproportionate to Glover’s past conduct and offenses

{¶86} Before imposing consecutive sentences, R.C. 2929.14(C)(4) requires the

trial court to 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

* * * .”

{¶87} A proportionality analysis considers both the defendant’s current

conduct and the risk of the defendant being a danger in the future. R.C. 2929.14(C)(4).

To make that determination, the analysis “focuses upon the defendant’s current

conduct and whether this conduct, in conjunction with the defendant’s past conduct,

allows a finding that consecutive service is not disproportionate.” State v. Crim, 2d

Dist. Clark No. 2018-CA-38,

, ¶ 11; State v. Mathis, 6th Dist. Lucas

No. L-21-1249,

, ¶ 19 (same); State v. Forsell, 11th Dist. Portage Nos.

2019-P-0116, 2019-P-0117, 2019-P-0118, 2019-P-0119, 2019-P-0120, 2019-P-0121,

2019-P-0122, 2019-P-0123 and 2019-P-0124,

, ¶ 26 (same).

3 Because the trial court also found that Glover committed two or more offenses as part of a course of conduct causing harm so great or unusual that a single prison term was inadequate to reflect the seriousness of Glover’s offenses and because, as will be discussed below, proportionality findings involve considering both past and current conduct, we will discuss the trial court’s findings regarding Glover’s criminal history in our discussion about proportionality.

28 OHIO FIRST DISTRICT COURT OF APPEALS

a. Glover’s juvenile adjudication

{¶88} “Quite simply, a juvenile adjudication is not a conviction of a crime and

should not be treated as one.” State v. Hand,

,

,

, ¶ 38. Despite that general rule, Ohio law allows a trial court to view

offenders’ juvenile history as part of their criminal history when imposing consecutive

sentences. State v. Batiste,

,

, ¶ 20 (8th Dist.). But

“use of an offender’s juvenile criminal history is generally reserved for instances where

the offender has an extensive juvenile history.” Id.; see State v. Jones, 8th Dist.

Cuyahoga No. 111208,

, ¶ 32 (same).

{¶89} The trial court not only used Glover’s single juvenile adjudication in its

consideration of his past criminal acts, but also misinterpreted the ordinance under

which Glover was adjudicated delinquent.

{¶90} Glover was adjudicated delinquent under Toledo Municipal Code

537.16. The ordinance, titled “Assault upon a teacher; disrupting school activity,”

prohibits a person from assaulting, striking or threatening a teacher.

But it also

prohibits a person from “disrupt[ing], disturb[ing] or interfere[ing] with the teaching

of any class of students, or disrupt[ing], disturb[ing] or interfere[ing] with any activity

conducted in a school, college, or university building, or upon the campus or grounds

thereof, or in any public place.”

{¶91} Nothing in the record included any facts underlying that adjudication.

Nevertheless, the trial court found that Glover’s adjudication was “an act of violence”

showing that he was not “amenable to follow the law” and demonstrating a need to

protect the public.

{¶92} The findings involving Glover’s criminal history are clearly and

convincingly not supported by the record because there is nothing in the record to

29 OHIO FIRST DISTRICT COURT OF APPEALS

substantiate the finding that Glover’s adjudication was based on a violent act. Indeed,

his adjudication could have been based on something as trivial as nonviolent

disruption of a class or even a pep rally. And Glover had only one other nontraffic-

related conviction, obstructing official business, a misdemeanor.

{¶93} The trial court’s conclusion about Glover’s past criminal acts clearly and

convincingly was not supported by the record. Yet, the record indicates that the trial

court placed significant weight on Glover’s juvenile adjudication in its proportionality

consideration. It found that Glover’s adjudication was “an act of violence,” an “assault

on teachers. That’s kind of disturbing. That causes me some pause and some concern.”

Glover’s juvenile record and his misdemeanor obstruction-of-official-business charge

indicated to the trial court that he was not “amenable to follow the law.” And its

sentencing entry stated, “specifically, the court finds that the defendant’s criminal

history shows a need to protect the public from future crime by the defendant.”

{¶94} Removing Glover’s acts in this case, there is nothing in Glover’s history

that indicates he poses a danger to the public. He had a juvenile adjudication without

any underlying facts to substantiate the trial court’s assertion that it was a violent

crime. And he had a misdemeanor obstructing-justice conviction.

{¶95} The record clearly does not support the trial court’s findings that

Glover’s past conduct shows he poses a danger to the public. The trial court’s improper

findings regarding Glover’s past conduct undermines its proportionality finding. b. Glover’s current offenses

{¶96} The Second District has determined that a lack of physical harm

requires imposition of concurrent sentences. State v. Hicks, 2d Dist. Greene No. 2015-

CA-20,

, ¶ 3, 23 (“we note that there is no evidence that Hicks caused

physical harm to any of the residents subject to her fiscal supervision, hence the

30 OHIO FIRST DISTRICT COURT OF APPEALS

conduct does not fit into the category of ‘the harm is so great or unusual that no single

prison term adequately reflects the seriousness’ ”). While we do not wish to paint such

a broad brush, we find that the lack of physical harm weighs against stacking all of the

seven-year aggravated-robbery sentences.

{¶97} This position is bolstered by looking to the Ohio Revised Code. Some

statutes carry an enhancement when the offense causes or risks serious physical harm.

And the penalties for crimes such as aggravated murder, murder, and child rape carry

a life-sentence tail. Thus, the legislature has determined that certain crimes, such as

those causing the most serious physical harm, should get longer sentences.

{¶98} Yet, other than life sentences without a possibility for parole, many

offenders who commit the most serious crimes may serve significantly shorter terms

than Glover. Murder is undoubtedly a more serious crime than aggravated robbery.

But a person who purposely takes another person’s life may have the opportunity to

be paroled after 15 years. Glover, who did not take his victims’ lives or cause them

physical harm, would have no chance of parole at 15, 20, 25, or even 50 years.

{¶99} The trial court stated, “I really can’t think of anything worse than if you

had just shot them, and if you killed them. But you know, maybe they wouldn’t have

to live with the fear and the nightmares that they have as a result of this, because they

would be dead.” The trial’s court’s suggestion that only death—and perhaps not even

death—was the only worse fate for Glover’s victims gives us a glimpse into why the

trial court imposed a sentence akin to life, which is longer than many offenders receive

for more serious crimes. While this court cannot look at every sentence imposed for

every crime, our review above of sentences for crimes causing physical harm bolsters

our conclusion that the trial court’s aggregate sentence was disproportionate to

31 OHIO FIRST DISTRICT COURT OF APPEALS

Glover’s offenses and the danger he poses to the public. The trial court imposed a

longer sentence than in Patton, 1st Dist. Hamilton No. C-190694,

, at ¶

2, where the defendant murdered two strangers; McRae, 1st Dist. Hamilton No. C-

180669,

, at ¶ 5, where the defendant attempted to murder two police

officers (and actually shot one); Prescott, 8th Dist. Cuyahoga Nos. 107784 and 107789,

, at ¶ 2, where the defendant was convicted of 14 counts each of

aggravated robbery and kidnapping, all with gun specifications, for eight separate

events, when the defendant or his accomplices pistol whipped a victim, causing serious

injuries; Consiglio, 7th Dist. Mahoning No. 21 MA 0066,

, at ¶ 1-2,

where the defendant assaulted a police officer and raped his grandmother; and Steele,

5th Dist. Delaware No. 21 CAA 11 0061,

, at ¶ 1, where a jury convicted

the defendant of five counts of unlawful sexual conduct with a minor and two counts

of rape.

{¶100} To be clear, we do not suggest that under the facts of this case, the trial

court could not have stacked some of the sentences. Rather, we are firmly convinced

that the record does not support the trial court’s proportionality finding based on it

stacking all the aggravated-robbery and gun-specification sentences.

{¶101} The lack of physical harm, combined with Glover’s lack of criminal

history, firmly convinces us that the trial court erred by finding that a 60-year sentence

was proportionate to his conduct and the danger he poses to the public. This is

especially true because before trial, the state offered 15 years in exchange for a guilty

plea, and after trial, the state recommended a 20- to 25-year sentence.

32 OHIO FIRST DISTRICT COURT OF APPEALS

{¶102} Simply put, a 60-year sentence—akin to a life sentence—was

disproportionate to Glover’s criminal history, danger he posed to the public, and

offenses.

6) R.C. 2953.08(G)(2) permits this court to modify Glover’s sentences

{¶103} Because we found that the record clearly and convincingly did not

support the trial court’s proportionality finding, R.C. 2953.08(G)(2) permits us to

increase, reduce, or otherwise modify a sentence.

{¶104} Before trial, the state and the victims agreed to a 15-year sentence if

Glover pleaded guilty. And after trial, the state, citing the wishes of some of the victims

and officers, recommended a sentence of between 20 and 25 years. We agree that a

25-year sentence is appropriate.

{¶105} We note that Glover’s appeal did not specifically mention the

consecutive sentencing for the gun specifications. And for penalty-enhancing

specifications, a trial court need not make consecutive-sentencing findings. See, e.g.,

State v. James,

,

, ¶ 47 (8th Dist.) (“With there being no

requirement in R.C. 2929.14(B)(1)(g) for the court to make findings of any kind before

ordering a third penalty enhancing specification to be served consecutively, the court

had no obligation to make any findings.”). Nevertheless, the consecutive nature of the

gun specifications is relevant to our proportionality determination because we

consider the aggregate sentence.

{¶106} Therefore, because the trial court’s proportionality findings were clearly

and convincingly unsupported by the record, we default to a single seven-year

sentence for aggravated robbery. The sentences for the six firearm specifications, three

years each, shall be served before the aggravated-robbery sentence and consecutive to

33 OHIO FIRST DISTRICT COURT OF APPEALS

each other and the seven-year aggravated-robbery term. Accordingly, we order the

trial court to impose an aggregate sentence of 25 years of incarceration.

{¶107} We sustain Glover’s sixth assignment of error and remand this cause to

the trial court to enter a 25-year sentence consistent with this opinion.

III. CONCLUSION

{¶108} We sustain Glover’s sixth assignment of error and remand the cause to

the trial court to enter an aggregate term of 25 years of incarceration, consistent with

this opinion. We affirm the trial court’s judgment in all other respects.

Judgment affirmed in part and reversed in part, and cause remanded.

BERGERON, P.J., and CROUSE, J., concur.

Please note: The court has recorded its own entry this date.

34