State v. Aitken

2023 Ohio 738

• Court: Ohio Court of Appeals
• Decided: March 10, 2023
• Docket: L-22-1087
• Status: Published

Opinion

[Cite as State v. Aitken, 2023-Ohio-738.]

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

State of Ohio Court of Appeals No. L-22-1087

Appellee Trial Court No. CR0202201202

v.

Jacob Aitken DECISION AND JUDGMENT

Appellant Decided: March 10, 2023

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and Lorrie J. Rendle, Assistant Prosecuting Attorney, for appellee.

Ernest E. Bollinger, for appellant.

OSOWIK, J.

Introduction

{¶ 1} Appellant, Jacob Aitken, appeals the April 7, 2022 judgment of the Lucas

County Court of Common Pleas which sentenced him to 18 months in prison on two

counts of Domestic Violence, to be served consecutively, for a total of 36 months in

prison. For the following reasons, we affirm the judgment of the trial court. Procedural Background

{¶ 2} On February 9, 2022, Appellant, Jacob Aitken was indicted by the Lucas

County Grand Jury for two counts of Domestic Violence, pursuant to R.C.

2919.25(A), (D)(1), and (D)(4), felonies of the third degree. The charges resulted

from an incident that occurred in the family home on or about January 30, 2022,

involving two separate victims, his wife and his 15-year-old daughter.

{¶ 3} On March 22, 2022, Aitken pled guilty to the amended charges of two

counts of Domestic Violence, pursuant to R.C. 2919.25(A), (D)(1), and (D)(4), with

offense being classified as felonies of the fourth degree. Following a sentencing

hearing, which was held on April 7, 2022, Aitken was sentenced to 18 months in

prison on each count, to be served consecutively, for a total of 36 months in prison.

Facts

{¶ 4} The record demonstrates that on January 31, 2022, Aitken was angry

when he arrived at home in the evening. His wife was in bed with their five-year-old

son when Aitken came in and began choking her. Their 15-year-old daughter and her

boyfriend were also in the room at the time. Their daughter’s boyfriend grabbed the

five-year-old as the daughter attempted to protect her mother from Aitken’s attack.

{¶ 5} Aitken then grabbed his daughter by her hair and dragged her down the

hallway, causing bloody rug burns to her knees and ripping out handfuls of her hair.

Once Aitken’s wife had caught her breath, she ran into the hallway and witnessed

2. Aitken attacking their daughter and slapping her across the face. When she yelled at

him to stop, Aitken charged at his wife and ripped the door off of their son’s play

kitchen and “busted her head open” with it.

{¶ 6} Aitken then turned to their daughter’s boyfriend, who was holding a

towel to his wife’s head which was “gushing blood everywhere.” Aitken yelled at

him, threatening that “he would kill him if he didn’t leave.” Their daughter’s

boyfriend left and so did Aitken.

{¶ 7} At the sentencing hearing, the court stated that it considered the record,

oral statements, both victim impact statements, and the PSI prepared, as well as the

principles and purposes of sentencing under 2929.11, and balanced the seriousness

and recidivism factors under 2929.12. The court sentenced Aitken to 18 months for

each of his two counts of domestic violence, to be served consecutively, for a total of

36 months.

Argument

{¶ 8} Appellant presents two assignments of error for our review. In his first

assignment of error, appellant argues that the trial court erred by failing to find that his

conviction for these two separate offenses involving two separate victims were allied

offenses of similar import and should have been merged at sentencing. Appellant

acknowledges that he did not raise this argument at sentencing nor did he object to the

trial court’s sentencing him separately for each conviction.

3. {¶ 9} An accused’s failure to raise the issue of allied offenses of similar import in

the trial court forfeits all but plain error, and a forfeited error is not reversible error unless

it affected the outcome of the proceeding and reversal is necessary to correct a manifest

miscarriage of justice. State v. McKinney, 6th Dist. Lucas No. L-19-1033, 2020-Ohio-

3547, ¶ 27, citing State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860,

¶ 3. Therefore, we review the trial court’s judgment for plain error. State v. White, 6th

Dist., Lucas No. L-20-1059, 2021-Ohio-335, ¶ 6-7.

{¶ 10} R.C. 2941.25 prohibits multiple convictions for “allied offenses of similar

import” arising from the same conduct. Whenever a court considers whether there are

allied offenses that merge into a single conviction, the court must first take into account

the conduct of the defendant. In other words, how were the offenses committed. State v.

Tellis, 6th Dist. Wood No. WD-19-050, 2020-Ohio-6982, ¶ 74, citing State v. Ruff, 143

Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 25. To determine whether multiple

convictions constitute allied offenses, the court must address three questions: (1) did the

offenses involve either separate victims or separate and identifiable harm, (2) were the

offenses committed separately, and (3) were the offenses committed with separate

animus? Ruff at ¶ 25. An affirmative answer to any of the above will permit separate

convictions. Tellis at ¶ 74.

{¶ 11} Here, appellant argues that his convictions are allied offenses because they

arose from the same conduct. Oddly, Aitken also argues that his daughter would not

4. have been a victim “if she had done the right thing by calling 9-1-1” rather than

intervening to stop his ongoing choking of her mother. This argument is without merit.

{¶ 12} It is well-settled that when a defendant’s conduct victimizes more than one

person, the harm for each person is separate and distinct, and therefore, the defendant can

be convicted of multiple counts. Ruff at ¶ 26. See also State v. Jones, 6th Dist. Lucas No.

L-13-1193, 2015-Ohio-629, ¶ 75; State v. Mitchell, 6th Dist. Erie No. E-09-064, 2011-

Ohio-973; State v. Swiergosz, 6th Dist. Lucas No. L-12-1293, 2013-Ohio-4625. Further,

offenses committed against different victims during the same course of conduct are

committed with a separate animus for each offense and crimes against each victim are of

dissimilar import. Jones at ¶ 74.

{¶ 13} Appellant was convicted of Domestic Violence for his assault of his wife

and the wholly separate act of Domestic Violence for the assault of his 15-year-old

daughter.

{¶ 14} While each conviction arose from the same set of operative facts, those

facts clearly demonstrate appellant’s conduct victimized more than one person and

resulted in separate and distinct harm to each. Because the two victims suffered separate

and distinct harm as described in Ruff, appellant’s argument that his convictions were

allied offenses of similar import is unsupported. White, 6th Dist., Lucas No. L-20-1059,

2021-Ohio-335, at ¶ 6-11. Accordingly, we find no plain error in the trial court’s

judgment and appellant’s first assignment of error is found not well-taken.

5. {¶ 15} For his second and final assignment of error, Aitken contends that the trial

court committed error in the imposition of maximum sentences. He presents no argument

in support of this position other than to re-assert that the two offenses arose from a single

incident.

{¶ 16} Aitken admits that he presents this assignment solely by virtue of his

appeal of right granted by R.C. 2953.08(A)(1)(b) which states:

(b) The sentence was imposed for two or more offenses arising out of a

single incident, and the court imposed the maximum definite prison term or

longest minimum prison term for the offense of the highest degree.

Standard of Review

{¶ 17} Our review of felony sentences is governed by R.C. 2953.08(G), which

provides, in pertinent part:

(2) The court hearing an appeal under division (A), (B), or (C) of this

section shall review the record, including the findings underlying the

sentence or modification given by the sentencing court.

{¶ 18} The appellate court may increase, reduce, or otherwise modify a sentence

that is appealed under this section or may vacate the sentence and remand the matter to

the sentencing court for resentencing. The appellate court may take any action authorized

by this division if it clearly and convincingly finds either of the following: (a) That the

record does not support the sentencing court's findings under division (B) or (D) of

6. section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section

2929.20 of the Revised Code, whichever, if any, is relevant; (b) That the sentence is

otherwise contrary to law. State v. Nelson, 6th Dist. Wood No. WD-21-083, 2022-Ohio-

4308, ¶ 4-5.

{¶ 19} In challenging the sentence as “contrary to law,” appellant presents no

argument contesting the trial court’s consideration of the factors under R.C. 2929.11

and 2929.12.

{¶ 20} Even if Aitken did challenge the trial court’s consideration of these factors,

in State v. Jones, 2020-Ohio-6729, 163 Ohio St.3d 242, 169 N.E.3d 649, ¶ 42 and State v.

Toles, 166 Ohio St.3d 397, 2021-Ohio-3531, 186 N.E.3d 784, the Ohio Supreme Court

expressly rejected application of a “contrary to law” review to the trial court’s

consideration of factors under R.C. 2929.11 and 2929.12. Likewise, we have summarily

rejected challenges to a trial court’s findings under R.C. 2929.11 and 2929.12. See State

v. Bowles, 6th Dist., Lucas, No. L-21-1074, 2021-Ohio-4401, 181 N.E.3d 1226, ¶ 7,

citing Jones and Toles. State v. Dobbins, 6th Dist. Erie No. E-22-007, 2022-Ohio-4768, ¶

10-11.

{¶ 21} While R.C. 2953.08(G)(2)(a) permits our review of a trial court’s findings

under R.C. 2929.13(B) to determine whether the record supports the sentence by clear

and convincing evidence, Aitken bears the burden of pointing to evidence in the record

demonstrating error. State v. Orzechowski, 6th Dist. Wood No. WD-20-029, 2021-Ohio-

7. 985, ¶ 7, citing State v. Torres, 6th Dist. Ottawa No. OT-18-008, 2019-Ohio-434, ¶ 6. In

this instance, appellant makes no argument other than quoting the statements of the

victim and again claiming that the assaults of the two victims should be considered a

singular event.

{¶ 22} Aitken pled guilty and was convicted of two counts of domestic violence,

pursuant to R.C. 2919.25(A), (D)(1), and (D)(4), felonies of the fourth degree.

R.C. 2929.14(A)(4) establishes the term of imprisonment for a fourth-degree felony.

That sections states:

(4) For a felony of the fourth degree, the prison term shall be a definite term

of six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen,

sixteen, seventeen, or eighteen months.

{¶ 23} The sentence of 18 months on each count was within the statutory range

and therefore, not contrary to law.

Consecutive sentences

{¶ 24} The trial court imposed consecutive sentences. The standard of review for

the imposition of consecutive sentences is governed by the clearly and convincingly

standard set forth in R.C. 2953.08(G)(2). The Supreme Court of Ohio has recently

illuminated the standard of review concerning the imposition of consecutive sentences.

In State v. Gywnne, Slip No. 2022-Ohio-4607, ¶ 27 the Court stated:

8. An appellate court’s review of the record and findings is de novo with the

ultimate inquiry being whether it clearly and convincingly finds—in other

words, has a firm conviction or belief—that the evidence in the record does

not support the consecutive-sentence findings that the trial court made. To

reiterate, R.C. 2953.08(G)(2)’s clear-and-convincing standard does not

permit—much less require or expect—an appellate court to modify or

vacate an order of consecutive sentences only when it is unequivocally

certain that the record does not support the findings. It requires that the

appellate court vacate or modify the order 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.

{¶ 25} The Court went on to state that a review of the record must first conclude

that there is some evidence to support the consecutive-sentence findings. Afterwards, the

review must be adequate to fully support the trial court’s findings:

This requires the appellate court to focus on both the quantity and quality of

the evidence in the record that either supports or contradicts the

consecutive-sentence findings. An appellate court may not, for example,

presume that because the record contains some evidence relevant to and not

inconsistent with the consecutive-sentence findings, that this evidence is

enough to fully support the findings. As stated above, R.C. 2953.08(G)(2)

9. explicitly rejects this type of deference to a trial court’s consecutive-

sentence findings. Instead, a de novo standard of review applies to whether

the evidence in the record supports the findings that were made. Under this

standard, the appellate court is, in fact, authorized to substitute its judgment

for the trial court’s judgment if the appellate court has a firm conviction or

belief, after reviewing the entire record, that the evidence does not support

the specific findings made by the trial court to impose consecutive

sentences, which includes the number of consecutive terms and the

aggregate sentence that results. Id. at ¶ 28-29. 1

Statutory Findings

{¶ 26} The imposition of consecutive sentences is governed by R.C. 2929.14(C)

(4). That section states:

(4) If multiple prison terms are imposed on an offender for convictions of

multiple offenses, the court may require the offender to serve the prison

terms consecutively if the court finds that the consecutive service is

necessary to protect the public from future crime or to punish the offender

and that consecutive sentences are not disproportionate to the seriousness of

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

and if the court also finds any of the following:

1 We will note that a motion for reconsideration was filed on January 3, 2023. That motion is still pending.

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

offender was awaiting trial or sentencing, was under a sanction imposed

pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or

was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of one or

more courses of conduct, and the harm caused by two or more of the

multiple offenses so committed was so great or unusual that no single

prison term for any of the offenses committed as part of any of the courses

of conduct adequately reflects the seriousness of the offender’s conduct.

(c) The offender’s history of criminal conduct demonstrates

that consecutive sentences are necessary to protect the public from future

crime by the offender.

{¶ 27} Thus, R.C. 2929.14(C)(4) requires that the trial court make three specific

findings before imposing consecutive sentences, including that: (1) consecutive sentences

are necessary to protect the public or to punish the offender; (2) consecutive sentences are

not disproportionate to the seriousness of the offender’s conduct and to the danger that

the offender poses to the public; and (3) finding that one of the subsection (a) (b) or (c)

statutory factors of R.C. 2929.14(C) (4) applies.

{¶ 28} Aitken makes no claim or argument that the trial court failed to make the

necessary statutory findings to impose consecutive sentences.

11. {¶ 29} The Supreme Court of Ohio has held that in order to impose consecutive

terms of imprisonment, a trial court is required to make the findings mandated by R.C.

2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing

entry. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37.

Otherwise, the imposition of consecutive sentences is contrary to law. See id.

{¶ 30} Although a word-for-word recitation of the language of the statute is not

required, a reviewing court must be able to discern that the trial court engaged in the

correct analysis, and to determine that the record contains evidence to support the trial

court’s findings. State v. Johnson, 6th Dist. Sandusky No. S-20-033, 2021-Ohio-2254, ¶

11-12, citing Bonnell at ¶ 29.

Analysis

{¶ 31} In Aitken’s case, the trial court relevantly stated at the sentencing hearing:

The Court finds that consecutive sentences are necessary to protect

the public from future crime or to punish the defendant and not

disproportionate to the seriousness of the defendant’s conduct or the

danger the defendant poses to the public.

The court went on to state:

The Court further finds that the offenses were committed as part of

one or more courses of conduct and that the harm caused was so great or

unusual that no single prison term for any of these offenses committed as

12. part of any of the courses of conduct adequately reflects the seriousness of

the offender’s conduct.

{¶ 32} Thus, it is undisputed that the record supports a finding under R.C.

2929.14(C) (4)(b) that Aitken committed these multiple offenses as part of one or more

courses of conduct and that the harm caused was so great or unusual that no single prison

term for any of these offenses committed as part of any of the courses of conduct

adequately reflects the seriousness of the appellant’s conduct.

{¶ 33} Pursuant to Gwynne, after a de novo review of the consecutive-sentence

findings made by the trial court, we cannot find that the imposition of consecutive

sentences is clearly and convincingly contrary to law. We further find that the record

supports those findings required under 2929.14(C)(4) and these findings are

incorporated into the judgment entry of sentencing that was journalized on April 8, 2022.

Conclusion

{¶ 34} We find appellant’s first and second assignments of error not well-taken.

We affirm the April 7, 2022 judgment2 of the Lucas County Court of Common Pleas.

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

Judgment affirmed.

2 The April 7 judgment was journalized on April 8, 2022, and E-Journalized on April 11, 2022.

13. State of Ohio v. Jacob Aitken L-22-1087

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

Thomas J. Osowik, J. ____________________________ JUDGE Gene A. Zmuda, J. ____________________________ Myron C. Duhart, P.J. JUDGE CONCUR. ____________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

14.