State v. Amero

2023 Ohio 345

• Court: Ohio Court of Appeals
• Decided: February 6, 2023
• Docket: 2020-P-0029
• Status: Published

Opinion

[Cite as State v. Amero, 2023-Ohio-345.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY

STATE OF OHIO, CASE NO. 2020-P-0029

Plaintiff-Appellee, Criminal Appeal from the -v- Court of Common Pleas

LAURA E. AMERO, Trial Court No. 2019 CR 00366 Defendant-Appellant.

OPINION

Decided: February 6, 2023 Judgment: Affirmed in part and reversed and modified in part

Victor V. Vigluicci, Portage County Prosecutor, and Theresa M. Scahill, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

J. Gerald Ingram and Frank Louis Cassese, Ingram, Cassese & Grimm, LLP, 7330 Market Street, Boardman, OH 44512 (For Defendant-Appellant).

MATT LYNCH, J.

{¶1} Defendant-appellant, Laura Amero, appeals her sentence for Sexual Battery

and Sexual Imposition in the Portage County Court of Common Pleas. For the following

reasons, we affirm the individual prison terms ordered by the trial court but reverse the

consecutive nature of the sentences and modify her total term of imprisonment to an

aggregate term of five years.

{¶2} On April 19, 2019, Amero was indicted by the Portage County Grand Jury

for two counts of Sexual Battery, felonies of the third degree, in violation of R.C. 2907.03(A)(7) and (B) (“[n]o person shall engage in sexual conduct with another * * * when

* * * [t]he offender is a[n] * * * administrator * * * or other person in authority employed by

or serving in a school * * * [and] the other person is enrolled in or attends that school”);

two counts of Attempted Sexual Battery, felonies of the fourth degree, in violation of R.C.

2923.02(A) and R.C. 2907.03(A)(7) and (B); and two counts of Intimidation of a Victim or

Witness in a Criminal Case, misdemeanors of the first degree, in violation of R.C.

2921.04(A), (D), and (E).

{¶3} A plea hearing was held on November 4, 2019, at which Amero entered a

plea of guilty to two counts of Sexual Battery as stated in the indictment and an amended

count of Sexual Imposition, a misdemeanor of the first degree, in violation of R.C. 2907.06.

The convictions related to sexual acts involving two 16-year-old students while Amero was

principal at Windham High School. A Written Plea of Guilty and Judgment Entry finding

Amero guilty were filed on November 4, 2019. The remaining counts of the indictment

were dismissed.

{¶4} Amero filed a Sentencing Memorandum on February 7, 2020. Attached

were letters in support from family members and friends as well as two letters written by

a psychologist from whom Amero had sought treatment during the investigation of this

matter, Dr. Michael Smith. He stated that Amero had attended 23 treatment sessions as

of January 28, 2020, and he considered her to pose “low to minimal risk to the safety and

welfare of the general public.” According to Smith, Amero responded well to therapeutic

guidance and her risk of reoffending “has been substantially reduced.”

{¶5} A sentencing hearing was held on February 10, 2020. The defense argued

that Amero had family support, confessed when confronted by police, had taken

Case No. 2020-P-0029 responsibility and resigned her position as superintendent shortly after being accused of

the crimes, had engaged in counseling following the crimes, and had mental health issues

including depression, anxiety, and eating disorders. Defense counsel emphasized

Amero’s lack of a criminal history and what she had done for the community and students

when she worked for Windham. Amero apologized, highlighted the loss of her career and

stated her responsibility for that loss. Defense counsel requested community control. The

State noted that the victims were present in the courtroom and stated “they’ve asked the

Court to consider their statements that they’ve made.”1 It requested she be ordered to

serve a prison term.

{¶6} The court stated that it did not believe Amero committed the crimes due to

mental illness and stated that it “can’t understand how this keeps happening with teachers,

superintendents, principals…”. The court found consecutive sentences were “necessary

to protect the public from future crimes and to punish the Defendant fairly,” were “not

disproportionate to the seriousness of the Defendant’s conduct, and to the danger the

Defendant poses to the public,” two or more of the offenses were part of a course of

conduct, and the harm was so great that no single prison term adequately reflected the

seriousness of the conduct, emphasizing that Amero “destroyed” the community. The

court imposed consecutive terms of five years in prison for each count of Sexual Battery

and a concurrent term of 180 days for Sexual Imposition for a total term of 10 years in

prison. The sentence was memorialized in a February 12, 2020 Order and Journal Entry.

1. No written or other victim impact statements are present in the record and, apart from the State’s reference to statements made and the court’s presumably boilerplate notation in its Judgment Entry that it reviewed “any victim impact statements,” we do not find the record demonstrates they were filed or made part of the record. The State, which was given access to view the Presentence Investigation Report and sealed documents relating to sentencing through an August 27, 2020 Judgment Entry of this court, notes in its brief that the statements were not in the record. Amero also sets forth in her brief that any such statements and their content were not disclosed or provided to defense counsel. 3

Case No. 2020-P-0029 In the entry, the court stated that it considered the evidence presented by counsel, oral

statements, “any victim impact statements” and the defendant’s statement, as well as the

PSI, and the purposes of sentencing, and the need for deterrence, incapacitation,

rehabilitation, and restitution. Amero was classified as a Tier III sex offender.

{¶7} Amero appealed from the foregoing sentence. Following briefing by the

parties, the Ohio Supreme Court issued its opinion in State v. Jones, 163 Ohio St.3d 242,

2020-Ohio-6729, 169 N.E.3d 649, which addressed the proper appellate review of a trial

court’s application of the sentencing factors in R.C. 2929.11 and 2929.12. As it is pertinent

to the present matter, a continuance was granted and the parties were permitted to submit

supplemental briefs on the applicability of Jones.

{¶8} On appeal, Amero raises the following assignments of error:

{¶9} “[1.] The record clearly and convincingly establishes that the sentencing

court misapplied and failed to properly consider the sentencing criteria contained in R.C

2929.11 and 2929.12 when it imposed maximum individual sentences of five (5) years on

each count of sexual battery, in violation of R.C. 2907.03.

{¶10} “[2.] The trial court erred by imposing maximum consecutive sentences

pursuant to R.C. 2929.14(C)(4) where the record clearly and convincingly does not

support such a finding.”

{¶11} In the first assignment of error, Amero argues that “the record did not support

the individual maximum sentences in the case at bar” because the trial court did not

properly apply the sentencing principles and factors in R.C. 2929.11 and .12, contending

that the record did not demonstrate she posed a risk to the public or caused significant

harm to the victims. In support, she cites to a factually similar case from this court, State

Case No. 2020-P-0029 v. Polizzi, 11th Dist. Lake Nos. 2018-L-063 and 064, 2019-Ohio-2505, arguing that “the

record in the instant case is even more devoid of justifications for maximum individual

sentences than the record in Polizzi,” where the appellant’s sentence was reversed. In

her supplemental brief, Amero emphasizes that she takes issue with the trial court

improperly considering the R.C. 2929.12(B) “more serious factor” of the school

official/student relationship.

{¶12} “The court hearing an appeal [of a felony sentence] shall review the record,

including the findings underlying the sentence or modification given by the sentencing

court.” R.C. 2953.08(G)(2). “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 * * * if it clearly and

convincingly finds * * * [t]hat the record does not support the sentencing court’s findings

under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14,

or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant; [or] *

* * [t]hat the sentence is otherwise contrary to law.” R.C. 2953.08(G)(2).

{¶13} “A court that sentences an offender for a felony shall be guided by the

overriding purposes of felony sentencing” which are “to protect the public from future crime

by the offender and others, to punish the offender, and to promote the effective

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

accomplish those purposes without imposing an unnecessary burden on state or local

government resources.” R.C. 2929.11(A). When imposing a felony sentence, the trial

court “has discretion to determine the most effective way to comply with the purposes and

principles of sentencing” and “shall consider the factors * * * relating to the seriousness of

Case No. 2020-P-0029 the conduct” and “to the likelihood of the offender’s recidivism.” R.C. 2929.12(A).

{¶14} “Trial courts have full discretion to impose a prison sentence within the

statutory range and are no longer required to make findings or give their reasons for

imposing maximum, consecutive, or more than the minimum sentences.” State v. Foster,

109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, paragraph seven of the syllabus. The

Ohio Supreme Court has described R.C. 2929.12 as “a general judicial guide for every

sentencing.” Id. at ¶ 36. “[T]here is no mandate for judicial fact-finding in the general

guidance statutes. The court is merely to ‘consider’ the statutory factors.” Id. at ¶ 42;

State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 31 (R.C.

2929.11 and 2929.12 do not require a trial court to make specific factual findings).

{¶15} The Ohio Supreme Court has recently clarified the application of R.C.

2953.08(G)(2) in relation to R.C. 2929.11 and .12. Jones, 163 Ohio St.3d 242, 2020-Ohio-

6729, 169 N.E.3d 649. The Court held that R.C. 2953.08(G)(2)(a) does not allow an

appellate court to vacate a sentence based on “lack of support in the record for a trial

court’s findings under R.C. 2929.11 and 2929.12.” Id. at ¶ 29. It concluded that “an

appellate court’s determination that the record does not support a sentence does not

equate to a determination that the sentence is ‘otherwise contrary to law’” as set forth in

R.C. 2953.08(G)(2)(b). Id. at ¶ 32. Thus, “[n]othing in R.C. 2953.08(G)(2) permits an

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

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

with R.C. 2929.11 and 2929.12.” Id. at ¶ 42.

{¶16} In her supplemental brief, Amero contends that Jones is “inapplicable to the

instant appeal” because “the allegations of sentencing error here are specific and assert

Case No. 2020-P-0029 that, as a matter of law, the sentencing court improperly considered the seriousness

factors under R.C. 2929.12(B) and the recidivism less likely factors under R.C.

2929.12(E).” She argues that this appeal is premised on the fact that the trial court

“violated the clear command of R.C. 2929.12 by considering the school official/student

relationship as a more serious factor under R.C. 2929.12(B)” and contends that “whether

the sentencing court erred as a matter of law in considering prohibited factors is

cognizable on appeal.”

{¶17} While Amero emphasizes that she only questions whether the trial court

applied the correct factors and not the weight assigned to each factor, throughout her

original brief she provides analysis as to whether the factors supported the court’s

sentence and emphasizes how, like in Polizzi, when considering all of the factors, the

sentence was not supported by the evidence. To the extent that addressing these specific

issues would involve weighing the R.C. 2929.11 and .12 factors to determine whether the

court’s sentence was appropriate, consistent with Jones, we will not conduct such a

weighing of the evidence or substitute this court’s judgment for that of the trial court.

{¶18} We will, however, address Amero’s contention that the lower court was not

permitted to consider the school official/student relationship as a factor making the crime

more serious under R.C. 2929.12(B) as it goes to a legal issue independent of weighing

the evidence. See State v. Chase, 11th Dist. Lake Nos. 2020-L-070 and 2020-L-071,

2021-Ohio-1006, ¶ 10 (“[w]e will address [appellant’s] argument to the limited extent that

[he] claims * * * the trial court explicitly relied on facts that it was precluded from

considering by law”).

{¶19} Amero argues that the lower court was not permitted to consider that the

Case No. 2020-P-0029 crime of Sexual Battery occurred against students while she was in the position of a school

principal as a factor making the crime more serious pursuant to R.C. 2929.19(B), since

this status is also an element of the offense. In support of this argument, she relies on

Polizzi, 2019-Ohio-2505, wherein this court reversed a sentence under similar

circumstances involving a teacher committing Sexual Battery against students. In Polizzi,

this court found that a sentencing court may not elevate the seriousness of an offense by

pointing to an element of the offense itself, and noted that the student/teacher relationship

is “accounted for by the legislature” in setting the level of the offense. Id. at ¶ 28.

{¶20} Polizzi jointly addressed alleged sentencing errors in relation to the

application of consecutive sentences pursuant to R.C. 2929.14(C)(4), and R.C. 2929.11

and .12, which set forth factors the sentencing court must consider regarding the purposes

and principles of sentencing, the seriousness of the crime, and the risk of recidivism.

However, its analysis primarily related to the consecutive sentencing findings, ultimately

concluding that, “[u]pon review of the record, there is no support under R.C.

2929.14(C)(4) for some of the findings the trial court made to justify imposition of

consecutive sentences for each of the individual offenses for which a plea was entered.”

Id. at ¶ 47. This court has clarified the application of Polizzi, confirmed that “[t]he holding

in Polizzi was that the trial court’s consecutive sentence findings under R.C. 2929.14(C)(4)

were clearly and convincingly not supported by the record,” and rejected the argument

that elements of the offense cannot be considered when weighing the seriousness factors

under R.C. 2929.12. (Emphasis added.) State v. Banas, 11th Dist. Lake No. 2019-L-049,

2019-Ohio-5053, ¶ 25; State v. Brown, 11th Dist. Lake No. 2020-L-052, 2020-Ohio-4642,

¶ 15 (declining to apply Polizzi and rejecting appellant’s argument that a court may not

Case No. 2020-P-0029 consider an element of the offense to elevate the seriousness of the conduct under R.C.

2929.12(B)); State v. Russell, 11th Dist. Lake No. 2019-L-138, 2020-Ohio-3243, ¶ 75. In

other words, this court has held that elements of the offense can be considered in the

sentencing court’s weighing of factors making the crime more serious under R.C. 2929.12.

{¶21} As this court more fully explained in Russell, “[t]he statutory text of R.C.

2929.12(B) does not support a conclusion that a trial court may not recognize an element

of an offense in its consideration of the seriousness of an offender’s conduct” and

“contains no exception for factors that may overlap with the elements of an offense.” Id.

at ¶ 81-82. It further noted that the factor at issue will apply uniformly for all instances of

the same offense and, thus, would lead to fair application since R.C. 2929.12(B) requires

the court to consider factors “as indicating that the offender’s conduct is more serious than

conduct normally constituting the offense.” (Emphasis omitted.) Id. at ¶ 83-84. Pursuant

to the foregoing precedent, the trial court was permitted to consider that the crime of

Sexual Battery occurred against students while Amero was a school principal as a factor

making the crime more serious pursuant to R.C. 2929.19(B). We cannot second-guess

how much weight it gave this factor in comparison to others under Jones.

{¶22} Finally, to the extent Amero argues that the lower court failed to consider

factors making the crime less serious, we emphasize that there is a presumption that a

court considered R.C. 2929.12, even where the trial court is silent regarding these factors,

unless the defendant affirmatively shows to the contrary. State v. Claar, 11th Dist. Portage

No. 2020-P-0058, 2021-Ohio-2180, ¶ 11; State v. Foster, 11th Dist. Portage No. 2011-P-

0087, 2012-Ohio-3744, ¶ 9. We do not find Amero has demonstrated that the trial court

failed in its duty to consider all of the required factors under R.C. 2929.11 and .12.

Case No. 2020-P-0029 {¶23} The first assignment of error is without merit.

{¶24} In her second assignment of error, Amero argues that the record contains

no evidence to support the trial court’s consecutive sentence findings, emphasizing that

the seriousness of the offense should not have been elevated by her role as a principal

since this was an element of the offense and the lack of evidence of harm and

seriousness, and citing Polizzi in support of her argument.

{¶25} Pursuant to R.C. 2929.14(C)(4), separate prison terms for multiple offenses

may be ordered to be served consecutively if the court finds it 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 finds any of the R.C. 2929.14(C)(4)(a)-(c) factors are

present. The only applicable factor here is R.C. 2929.14(C)(4)(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.”

{¶26} “‘[T]he clear and convincing standard used by R.C. 2953.08(G)(2) is written

in the negative. It does not say that the trial judge must have clear and convincing

evidence to support its findings. Instead, it is the court of appeals that must clearly and

convincingly find that the record does not support the court’s findings.’” (Citation

omitted.) State v. Guth, 11th Dist. Portage No. 2015-P-0083, 2016-Ohio-8221, ¶ 23,

quoting State v. Rodeffer, 2d Dist. Montgomery Nos. 25574, et al., 2013-Ohio-5759, ¶ 31;

State v. Forsell, 11th Dist. Portage Nos. 2019-P-0116, et al., 2020-Ohio-5381, ¶ 15. This

Case No. 2020-P-0029 standard has been characterized as “extremely deferential.” Id. There must be an

“evidentiary basis” that is “adequate to fully support the trial court’s consecutive-sentence

findings.” State v. Gwynne, __ Ohio St.3d __, 2022-Ohio-4607, ___ N.E.3d __, ¶ 29.

“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.” Id. In evaluating consecutive sentences,

the appellate court is “authorized to substitute its judgment for the trial court’s judgment if

[it] 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.”

Id.

{¶27} The lower court made the findings required to impose a consecutive

sentence: that such sentence is necessary to protect the public from future crime or to

punish the defendant; that the sentence is not disproportionate to the seriousness of the

defendant’s conduct and the danger she poses to the public; and the two offenses were

committed as part of a course of conduct and the harm caused by the offenses was so

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

defendant’s conduct. However, we clearly and convincingly find that the record lacks an

evidentiary basis to fully support the trial court’s findings.

{¶28} As to the finding that the harm caused by the offenses was so great or

unusual that more than a single term is warranted, the record is devoid of evidence to

support such a conclusion. There is nothing in the record to demonstrate the extent of the

Case No. 2020-P-0029 harm suffered by the victims. The State did not specify what harm was caused to the

victims, other than a general statement that sexual abuse causes harm. The PSI includes

the facts of the offenses but does not include any statements by the victims of what

specific harm they suffered. At the sentencing hearing, the State noted that the victims

were present in the courtroom and, rather than speaking, asked that the Court “consider

their statements that they’ve made.” To clarify the record, following oral argument, this

court remanded to the trial court with instructions to issue an entry stating “whether any

victim impact statements exist as part of the trial court record” and to supplement the

record on appeal if warranted. The record was not supplemented with any additional

material. Thus, there is nothing present in the record allowing this court to discern a

justification for this finding. While we recognize that sexual assault and sexual battery are

significant offenses, it is necessary that the trial court make a finding, supported by the

record, that the harm caused by Amero’s actions 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” her conduct. (Emphasis added.) R.C.

2929.14(C)(4)(b). Without evidence in the record to demonstrate a basis for this

conclusion, such a finding is clearly and convincingly contrary to the record.

{¶29} The lower court did state, when making its consecutive sentencing findings,

that “you had the entire community in your hands and you destroyed it,” noting that Amero

was a superintendent. The State emphasizes that the impact on the community is properly

considered to support a finding of harm. See State v. Martinez, 6th Dist. Wood No. WD-

01-027, 2002 WL 255499, *7 (Feb. 22, 2002) (“[w]e cannot say that the court erred in

considering the long term effect of appellant’s actions on the community as support for its

Case No. 2020-P-0029 finding that the harm caused by appellant’s offenses was so great or unusual that a single

prison term would not adequately reflect the seriousness of appellant’s conduct”).

However, again, this finding is not supported by the record. The basis for this finding is

unclear, since nothing was presented to demonstrate the particular harm caused to the

community, and the observation that Amero was superintendent is of limited value given

that she was principal rather than superintendent at the time of the offenses. The only

tangible evidence regarding the Windham community was a letter from a teacher who

worked with Amero at Windham indicating Amero had benefited the community through

her work in the Windham schools.

{¶30} The trial court’s emphasis on the harm caused focuses primarily on the

element of the crime that made Amero’s actions criminal: her position as a principal. R.C.

2907.03(A)(7) (“[n]o person shall engage in sexual conduct with another, not the spouse

of the offender, when * * * [t]he offender is a teacher, administrator, coach, or other person

in authority employed by or serving in a school * * *”). In Polizzi, 2019-Ohio-2505, this

court, noting case law holding “[a] trial court may not elevate the seriousness of an offense

by pointing to a fact that is also an element of the offense itself,” held that the court’s

finding that appellant was a predator was based on his relationship to the victims as their

teacher, an element of the sexual battery offenses under R.C. 2907.03(A)(7) and could

not be considered to elevate his sentence. (Citation omitted.) Id. at ¶ 28, 35, and 47. A

similar concern arises here; in the court’s brief comments when ordering consecutive

sentences, it emphasized Amero’s position of authority within the schools and how her

conduct in that role caused harm. This role is precisely why she was charged with a crime.

If this alone is viewed as grounds to order consecutive sentences, such sentences would

Case No. 2020-P-0029 be justified in all offenses charged under R.C. 2907.03(A)(7), rather than in those where

the harm was “great or unusual.”

{¶31} The State argues that Polizzi and, in particular, its foregoing holding, is

inapplicable for several reasons. First, it argues that this court reached a contrary holding

in State v. Spellman, 160 Ohio App.3d 718, 2005-Ohio-2065, 828 N.E.2d 695 (11th Dist.):

that the element of being an elected official could be considered when ordering

consecutive sentences for theft in office and tampering with records. Id. at ¶ 30. Given

that this case was decided prior to Polizzi, we decline to apply its holding here, especially

given that Polizzi involved the same offense as in the present matter, Sexual Battery

committed by the conduct of a school employee in a role of authority. As outlined in the

first assignment of error, Polizzi does not bar the trial court from considering factors

making an offense more serious that involve an element of the offense when determining

the length of the sentence for a particular offense. However, Polizzi does mandate that a

consecutive sentence cannot be based upon a fact that is also an element of the offense.

The State also argues that Polizzi should not be considered by this court in its analysis

here because it applied R.C. 2929.12(D) factors in determining whether the consecutive

sentencing factor of risk to the public was present, which is contrary to the Ohio Supreme

Court’s holding that an appellate court errs by “reviewing [a defendant’s] consecutive

sentences under R.C. 2929.11 and 2929.12.” State v. Gwynne, 158 Ohio St.3d 279,

2019-Ohio-4761, 141 N.E.3d 169, ¶ 18. However, even presuming the misapplication of

certain factors in Polizzi’s analysis on one issue, this does not invalidate other conclusions

reached that were unrelated to the weighing of those factors, such as the determination

on the applicability of elements of the crime to order consecutive sentences.

Case No. 2020-P-0029 {¶32} The determination that the court’s findings were not supported by the record

is also buttressed by the fact that Amero presented specific and detailed evidence that

she poses a low risk to the public. Her psychiatrist indicated that she had responded well

to treatment, that “a number of the factors that contributed to her offending have been

reduced or ameliorated,” her risk to reoffend was substantially reduced, and she

presented a “low to minimal risk to the safety and welfare of the general public.” The

record does not refute this. There is no other assessment showing a risk of repeated

similar conduct in the future.

{¶33} The dissenting judge cites several examples in support of the argument that

evidence of harm was present in the record, such as potential damage to the students’

reputation and that there was more than one victim. However, harm can be inferred in

any case where there was a crime but more is required to justify a consecutive

sentence. For example, harm to reputation can be inferred in any sexual assault or battery

case where the victim’s identity becomes known. The harm required to support a

consecutive sentencing finding is “great or unusual harm” which is not present in the

record in this case. The citation to State v. Russell, 11th Dist. Lake No. 2019-L-138, 2020-

Ohio-3243, is unavailing. Russell is factually distinct and involves examples of great or

unusual harm that are not present here, including that the defendant, who was an “uncle

figure,” sexually abused an underage victim who was 12 to 14 years old over the course

of two and a half years. Id. at ¶ 2. In addition, the dissent argues that victim statements

were not necessary as one will not be given in every case, such as with a toddler victim.

We recognize that certain circumstances may allow for the inference of great or unusual

harm, as with the abuse of a very young child, and that harm can be established in a

Case No. 2020-P-0029 variety of ways such as through the testimony of a psychologist. Those circumstances

are inapplicable here.

{¶34} Since the lower court made consecutive sentencing findings that were

unsupported by the record, particularly in relation to the harm caused by Amero’s

commission of the offenses, that portion of the sentence ordering Amero’s five-year terms

for Sexual Battery be served consecutively is reversed. As the record, which was not

supplemented by the trial court with any victim statements or additional evidence, does

not support consecutive sentencing findings, we modify Amero’s sentence to two

concurrent terms of five years in prison for Sexual Battery, served with the concurrent term

imposed for Sexual Imposition, for an aggregate five-year prison sentence. See State v.

Hawley, 2020-Ohio-1270, 153 N.E.3d 714, ¶ 25 (8th Dist.) (modifying the defendant’s

sentences to concurrent terms where the record did not support the findings required for

imposition of consecutive sentences).

{¶35} The second assignment of error is with merit.

{¶36} For the foregoing reasons, Amero’s individual sentences are affirmed, the

determination that the sentences for Sexual Battery be served consecutively is reversed,

and Amero’s sentence is modified as stated herein. Costs to be taxed against the parties

equally.

THOMAS R. WRIGHT, J., concurs with a Concurring Opinion,

MARY JANE TRAPP, J., concurs in part and dissents in part with a Concurring/ Dissenting Opinion.

______________________________________

Case No. 2020-P-0029 THOMAS R. WRIGHT, J., concurs with a Concurring Opinion.

{¶37} I concur with the lead opinion but write separately to further address issues

raised by the dissent. Certainly, when a school principal commits two counts of sexual

battery and one count of sexual imposition against students, the offenses could cause

harm, and I do not minimize the severity of the offenses. However, as noted by the lead

opinion, no written or other victim impact statements were made a part of the record.

There is simply no evidence in the record to support the conclusion that any arguable

harm caused was so great or unusual that no single prison term adequately reflects the

seriousness of Amero’s conduct. See R.C. 2929.14(C)(4)(b).

{¶38} The dissent maintains that we have failed to acknowledge evidence in the

record supporting the finding of great or unusual harm. The dissent first relies on the PSI

report which states that: one victim reported to police that Amero engaged in fellatio twice

with him; the second victim reported that Amero grabbed his penis and tried to kiss and

touch him on “no more than twenty occasions”; and Amero confessed to these acts. The

dissent cites State v. Russell, 11th Dist. Lake No. 2019-L-138, 2020-Ohio-3243, ¶ 137 for

the proposition that a prolonged sexual relationship supports a finding of great or unusual

harm. However, in Russell at ¶ 136, “[t]he trial court found that the victim suffered serious

psychological harm based on a letter from her psychiatrist setting forth current diagnoses

related to a history of sexual trauma.” There was therefore some evidence in that record

permitting the finding of “great or unusual harm.” No such evidence exists in this record.2

2. The dissent erroneously suggests that we have created a new rule that only “written or other victim impact statements” may support a finding of great or unusual harm. Au contraire. Even a cursory reading of Russell, cited by the dissent, demonstrates that this court has and will consider any evidence (in that case, the psychologist’s letter), as establishing great or unusual harm. The primary disagreement between the majority and the dissent is not one of law. It is one of reasonable versus unreasonable inferences. 17

Case No. 2020-P-0029 {¶39} Moreover, the fact that one victim in this matter reported to police the details

of the crime does nothing to establish great or unusual harm. Without some basis that

would allow for the inference that harm of great or unusual character occurred, the report

was merely part of the investigatory process.

{¶40} Further, the victim in Russell may have had a prolonged sexual relationship

with the defendant, just as the victims in this matter had a similar prolonged relationship.

This similarity, however, has nothing to do with a finding of great or unusual harm. In fact,

the duration of the relationship is coincidental without some affirmative evidence of some

“great or unusual harm.” As a court, we must be sensitive and sensible regarding our

evaluation of evidential sufficiency. There is no simple gauge to establish the standard

that would apply in every case. What one can unequivocally say, however, is that no

evidence is clearly insufficient evidence. Such is the case in the instant matter.

{¶41} The dissent also focuses on Amero’s statements that she damaged the trust

the victims have with an adult to be their role model and principal and that she is “sure”

the victims are embarrassed and uncomfortable due to the resulting damage to their

reputations. However, the PSI report indicates that Amero responded in this fashion to a

portion of the pre-probation questionnaire asking, “how do you think the victims feel about

what happened[?].” (Emphasis added.) There is nothing in the record that supports that

Amero’s statements were based on anything more than conjecture. Amero’s statements

merely reflect her speculation regarding the impact of her actions on the victims, not any

factual insight into how the victims themselves actually processed the events. That Amero

is “sure” that her actions, as an adult in a position of authority, caused the victims’

embarrassment, etc., is an unfalsifiable presupposition because it is a claim that, given

Case No. 2020-P-0029 this record, is impossible to establish. To wit, the victims did not concede great or unusual

harm or embarrassment and thus Amero’s purported certainty regarding these

experiences is pure speculation.

{¶42} Further, the dissent relies on the sentencing memorandum, wherein the

defense acknowledged that this case came to law enforcement’s attention due to rumors.

Based upon this, the dissent states, “so of course there is additional reputation damage

that necessarily comes with fellow students and the community learning about these

sexual encounters and the victims’ identities.” However, again, no record evidence exists

to support that any such harm was great or unusual.

{¶43} The existence of rumors or innuendo does not establish any great or unusual

harm, let alone the apparent “self-evident” truth that a student’s reputation would

necessarily be damaged. Some people may very well be embarrassed and greatly or

unusually harmed by rumors of sexual encounters that occurred with a school

administrator; others might experience no effect whatsoever. In essence, it is impossible,

without direct evidence that the victims in this matter were actually greatly or unusually

harmed by the so-called rumors, to use the alleged rumors to manufacture support for the

statutory finding that the harm in this case was so great or unusual that no single prison

term would reflect the seriousness of appellant’s conduct.

{¶44} The dissent next points to the fact that Amero was charged with intimidation

of a crime victim or witness, which was dismissed as part of her plea agreement. From

this, the dissent assumes the truth of the charges, and maintains that threats designed to

silence the victims “necessarily results in great harm or injury.” However, this court has

noted, “it would certainly be improper for the trial court to elevate [the accused]’s pending

Case No. 2020-P-0029 felony charge to the status of a conviction for sentencing purposes when [the accused]

had not actually been convicted of the pending charge.” State v. Hoolihan, 11th Dist.

Trumbull No. 2012-T-0023, 2012-Ohio-5837, ¶ 17. No evidence of threats, much less

great or unusual harm resulting from threats, appears in the record.

{¶45} Moreover, the dissent fails to acknowledge that any given witness might use

a defendant’s attempt to intimidate as a stronger basis for testifying. Intimidation of a

witness or the attempt to do so is practically meaningless unless the witness is

“intimidatable” – there is no such evidence to support this conclusion. Thus, the dissent’s

additional “self-evident” truth (namely, that an attempt to silence the victims “necessarily”

results in great harm or injury) completely lacks substantiation and is based upon

unfounded presupposition.

{¶46} Some people, in their day-to-day routine, have a built-in tendency to jump to

conclusions on the basis of limited or no evidence. Sometimes they will get a notion,

premised upon a few scant tidbits of evidence and settle immediately into a position. They

then promote “intuitions” or “half-truths” to the status of full and incontrovertible facts

without bothering to consider the foundation for the beliefs. Or, alternatively, they might

reason from their own personal experiences (i.e., from anecdotal evidence) to draw

conclusions that run far in advance of or far afield from the actual evidence. We, as a

court, must evaluate an actual record and, in doing so, must resist the temptation to treat

that which might be consistent with our own notions as part of that record when no such

evidence exists.

{¶47} The Second Appellate District has underscored this point in discussing the

consecutive sentencing statutory scheme:

Case No. 2020-P-0029 Whenever a trial court is required to make a finding, there obviously must be a factual basis in the record for the finding; otherwise the requirement would meaninglessly exalt form over substance. The making of a finding adverse to the defendant when there is nothing to support that finding is analogous to a jury’s returning a guilty verdict when there is no evidence in the record to support an essential element of the offense. In either case, the error is plain – in the sense that the result would clearly have been otherwise had the error not occurred.

State v. Carter, 2d Dist. Champaign No. 2005-CA-24, 2006-Ohio-984, ¶ 25.

{¶48} The dissent has relied on pure speculation to support the trial court’s finding

of great harm. As no evidence of great harm appears in the record, I agree with the lead

opinion that the record clearly and convincingly fails to support this finding. In other words,

the lack of any such evidence is sufficient to create a “firm belief” that the trial court’s

determination is unsupported by the record. This is, put simply, our standard of review for

consecutive sentences on appeal. Further, as the error occurred at the point of the trial

court imposing consecutive sentences, I agree that it is appropriate to modify Amero’s

sentence by reversing the imposition of consecutive sentences.

MARY JANE TRAPP, J., concurs in part and dissents in part with a Concurring/ Dissenting Opinion.

{¶49} While I concur with the majority’s disposition of Ms. Amero’s first assignment

of error, I must respectfully dissent from its finding that there is clear and convincing

evidence that the record does not support the trial court’s consecutive sentence findings.

Case No. 2020-P-0029 {¶50} I agree that the only applicable R.C. 2929.14(C)(4) factor for our

consideration in this case is (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.” The majority correctly recites the clear and

convincing standard to be applied to the review of a R.C. 2929.14(C)(4)(b) determination,

noting it is written in the negative (which has proven to be problematic for more than one

court), but then fails to acknowledge the evidence in this record that supports the trial

court’s finding.

{¶51} A review of the relevant case law is helpful to better articulate the standard

of review and its application. The Supreme Court of Ohio has held that “[i]n 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, but it has no obligation to state reasons to support its findings.”

State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus. Under

R.C. 2953.08(G)(2)(a), upon de novo review, a court of appeals may increase, reduce, or

otherwise modify a sentence if it clearly and convincingly finds “[t]hat the record does not

support the sentencing court’s findings under * * * (C)(4) of section 2929.14 * * *.” See

State v. Gwynne, 158 Ohio St.3d 279, 2019-Ohio-4761, 141 N.E.3d 169, ¶ 16, and State

v. Gwynne, Slip Opinion No. 2022-Ohio-4607, ¶ 12 (“Gwynne II”).

{¶52} “‘Clear and convincing evidence is that measure or degree of proof which is

more than a mere “preponderance of the evidence,” but not to the extent of such certainty

Case No. 2020-P-0029 as is required “beyond a reasonable doubt” in criminal cases, and which will produce in

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

established.’” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶

22, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three

of the syllabus.

{¶53} As the Supreme Court of Ohio recently explained in Gwynne II, the appellate

court is constrained to considering only the findings in R.C. 2929.14(C)(4) that the trial

court has actually made. It then applies a clear and convincing evidence standard of proof

and “determine[s] whether it has a firm belief or conviction that the proposition of fact

represented by each finding is not true on consideration of the evidence in the record.” Id.

at ¶ 21. “[T]he deference that a trial court’s consecutive-sentence findings receive comes

from the language of R.C. 2953.08(G)(2), which imposes a higher evidentiary standard to

reverse or modify sentences.” Id. at ¶ 22. The court also noted that the higher evidentiary

standard for changing a trial court’s order of consecutive sentences does not mean “‘clear

and unequivocal.’” (Emphasis sic.) Id. at ¶ 23, quoting Ledford at 477. This recent

clarification of the standard of review in consecutive sentencing cases confirms that

meaningful appellate review of a consecutive sentence does exist and that deference to

the trial court is not the evidentiary standard for changing a consecutive sentence.

However, Gwynne II changed nothing regarding the “lack of evidence in the record” to

support the imposition of consecutive sentence metric.

{¶54} What then is the record to be reviewed?

{¶55} “[T]he term ‘record’ as used in R.C. 2953.08(G)(2) is very broad. It

encompasses all of the proceedings before the court, not just the sentencing.” State v.

Case No. 2020-P-0029 Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 22; see Gywnne II at ¶ 28, fn. 6; R.C.

2953.08(F)(1)-(4). “[W]hile the court has the obligation to make separate and distinct

findings under R.C. 2929.14(C)(4) before imposing sentence, support for those findings

may appear anywhere in the ‘record’ and not just at the time the court imposes

consecutive sentences.” Venes at ¶ 22. The Supreme Court of Ohio has explained that

“as long as the reviewing court can discern that the trial court engaged in the correct

analysis and can determine that the record contains evidence to support the findings,

consecutive sentences should be upheld.” Bonnell at ¶ 29. This concept remains

unchanged by Gwynne II.

{¶56} Applying these principles to this record, Ms. Amero has not established that

the record clearly and convincingly does not support the trial court’s finding under R.C.

2929.14(C)(4)(b), nor does a de novo review of the record create a firm belief or conviction

in my mind that the findings are not supported by the evidence in this record—the whole

record.

{¶57} The majority opinion narrowly views the record and effectively creates a new

rule that only “written or other victim impact statements” may be considered record

evidence supporting a finding of great or unusual harm. Despite the absence of any formal

victim impact statements, the record does contain (and the majority acknowledges this

record evidence) a pre-sentence investigation (“PSI”) report. The report reveals that the

victims described the nature and number of Ms. Amero’s acts of sexual conduct in their

reports to the police and that Ms. Amero confirmed them in a confession. Ms. Amero’s

sexual conduct with each victim was not a “one-off” aberration or a loss of control that was

not repeated. Rather, Ms. Amero engaged in fellatio with one victim on two separate

Case No. 2020-P-0029 occasions in her office. The other victim reported not only that she grabbed his penis

while in her office, but also that she tried to kiss him and touched him on “no more than

twenty occasions.” Thus, evidence in the record indicates that Ms. Amero is a serial

offender with two different victims, not someone who just lost control on one occasion.

{¶58} This court has recognized that “an offender’s prolonged sexual relationship

with an underage victim under his [or her] care in some capacity supports a trial court’s

finding that the harm caused was so great or unusual that no single prison term adequately

reflects the [seriousness of the] offender’s conduct.” State v. Russell, 11th Dist. Lake No.

2019-L-138, 2020-Ohio-3243, ¶ 137. The extent and repetitive nature of Ms. Amero’s

sexual conduct with each victim supports a finding of great or unusual harm.

{¶59} The PSI also notes Ms. Amero’s acknowledgments that she “damaged” the

trust relationship that the victims have with “an adult to be their role model and principal”

and that she is “sure” the victims are “embarrassed and uncomfortable because their

names and reputation are all a part of this.” Additionally, the defense’s sentencing

memorandum acknowledges that this case came to the police’s attention from rumors, so

of course there is additional reputation damage that necessarily comes with fellow

students and the community learning about these sexual encounters and the victims’

identities.

{¶60} The record further demonstrates that Ms. Amero was charged with

Intimidation of a Victim or Witness in a Criminal Case, which was dismissed as part of her

plea agreement. A sentencing court may consider charges that have been dismissed or

reduced under a plea agreement. State v. Rush, 2013-Ohio-2728, 996 N.E.2d 503, ¶ 13

Case No. 2020-P-0029 (5th Dist.). Layering repeated sexual conduct with threats designed to keep the victims

from reporting the conduct necessarily results in great or unusual harm.

{¶61} The majority’s discussion conflates two separate consecutive sentence

findings. Ms. Amero argued on appeal that the record does not support a finding under

R.C. 2929.14(C)(4)(b) (involving “great or unusual” harm). The majority appears to

discuss the “seriousness” of Ms. Amero’s conduct, which relates to the second factor in

R.C. 2929.14(C)(4) (“[C]onsecutive sentences are not disproportionate to the seriousness

of the offender’s conduct and to the danger the offender poses to the public.”) (Emphasis

added.) This court has explained that “[u]nder the plain language of R.C. 2929.14

[(C)(4)(b)], the ‘so great or unusual’ factor does not apply to the conduct of the defendant

but rather to the harm caused by such conduct.” (Emphasis added.) Russell at ¶ 125;

see State v. Smith, 2d Dist. Montgomery No. 28265, 2019-Ohio-5015, ¶ 76.

{¶62} Even if the seriousness of Ms. Amero’s conduct is considered, this court has

held that “[t]he nature and extent of [the defendant’s] conduct over an extended time

period in his [or her] role as a public official can operate to augment the seriousness of his

[or her] conduct for sentencing purposes.” (Emphasis added.) State v. Spellman, 160

Ohio App.3d 718, 2005-Ohio-2065, 828 N.E.2d 695, ¶ 30 (11th Dist.).

{¶63} The majority rests its conclusion that the “record is devoid of evidence” of

great or unusual on the following two grounds: one, “the State did not specify what harm

was caused to the victim, other than a general statement that sexual abuse causes harm,”

and two, “the PSI includes facts of the offenses but does not include any statements by

the victim of what specific harm they suffered.” If we require the victim to make a

statement detailing the specifics of the harm caused, how would a toddler be able to

Case No. 2020-P-0029 communicate the “specific harm” caused by sexual abuse? How would any court then be

able to run sentences consecutively?

{¶64} Finally, while we have authority to modify a sentence, I believe we should

generally avoid being in the resentencing business. If I shared the majority’s view of the

record in this case, I would vacate the sentence and remand for resentencing.

Case No. 2020-P-0029