State v. Bella

2022 Ohio 2884

• Court: Ohio Court of Appeals
• Decided: August 19, 2022
• Docket: C-210581
• Status: Published

Opinion

[Cite as State v. Bella, 2022-Ohio-2884.]

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

STATE OF OHIO, : APPEAL NO. C-210581 TRIAL NO. B-1903457 Plaintiff-Appellee, :

vs. : O P I N I O N. NICHOLAS BELLA, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

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

Date of Judgment Entry on Appeal: August 19, 2022

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

John D. Hill, Jr., for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

BOCK, Judge.

{¶1} Defendant-appellant Nicholas Bella appeals the trial court’s imposition

of the community-notification requirement under R.C. 2950.11 and the court’s failure

to merge his two convictions of sexual battery for purposes of sentencing. We affirm

the court’s imposition of the community-notification requirement, reverse the trial

court’s decision not to merge the two convictions of sexual battery for purposes of

sentencing, and we remand this matter to the trial court.

I. Facts and Procedure

{¶2} In June 2019, Bella was indicted on one count of rape in violation of

R.C. 2907.02(A)(1)(c), one count of sexual battery in violation of R.C. 2907.03(A)(2),

one count of sexual battery in violation of R.C. 2907.03(A)(3), one count of unlawful

sexual conduct with a minor in violation of R.C. 2907.04(A), and two counts of illegal

use of a minor or impaired person in nudity-oriented material or performance in

violation of R.C. 2907.323(A)(1).

{¶3} Bella had been riding around in a vehicle with four teenagers, including

a 15-year-old girl, M.G. Bella had made advances toward M.G. earlier that evening, but

she rejected him. M.G. and her boyfriend eventually passed out from the effects of

alcohol and Xanax and were asleep in the rear bay of the SUV. While a codefendant

was recording, Bella climbed into the rear bay of the SUV, stripped naked, pulled down

M.G.’s pants and underwear, and began to masturbate over her. Bella looked directly

into the camera as he was committing this act, “gave a hand signal,” and then the video

had cut off before Bella vaginally penetrated M.G. Bella raped M.G. for approximately

20 to 25 minutes after the video stopped.

2 OHIO FIRST DISTRICT COURT OF APPEALS

{¶4} Bella pled guilty to counts two and three, sexual battery, and to count

six, illegal use of a minor or impaired person in nudity-oriented performance or

material. The state and Bella agreed to a sentence of seven years in prison: 60 months

for counts two and three, to be served concurrently, and 24 months for count six, to be

served consecutively to the sentences on counts two and three. The remaining counts

were dismissed. Bella asked the trial court to defer sentencing so that he could be

evaluated by the Hamilton County Court Clinic as to whether imposing sex-offender

community-notification requirements, in addition to the Tier III sex-offender/child-

victim-offender registrations and reporting requirements, would be appropriate.

Court Clinic Presentence Evaluation

{¶5} Dr. Emily Davis with the Hamilton County Court Clinic classified Bella

as a “high” risk for recidivism. Bella made no statements regarding these offenses.

{¶6} In the “substance abuse” section of the report, Dr. Davis checked alcohol

as “questionable,” noting that Bella had stated that he was “sorrowful” about his

drinking because it caused him to “make inappropriate decisions” and led to his

sexually-oriented-offense convictions. Bella had completed substance-abuse

treatment, aftercare treatment, and the residential phases at River City Correctional

Institution for a previous conviction.

Sentencing

{¶7} The court advised Bella about the constitutional rights that he was

relinquishing by pleading guilty, as well as the potential registration requirements if

he were classified as a Tier III sex-offender/child-victim-offender. Bella moved to

merge the two counts of sexual battery for the purposes of sentencing, arguing that the

offenses arose from the same act. The court denied Bella’s motion.

3 OHIO FIRST DISTRICT COURT OF APPEALS

{¶8} Bella also attempted to rebut R.C. 2950.11(A)’s presumption that he

would be subject to community notification, raising (1) his youth (19-years-old); (2)

despite his “extensive juvenile history,” this was his first sexually-oriented offense; (3)

the 15-year-old victim was not “child minor,” (4) a factual dispute existed involving

whether Bella gave M.G. drugs, (5) he had no mental illness, pattern of abuse, cruelty

or threats, or habitual commission of sexual offenses, and (6) this was an “isolated

incident” in which Bella was “under the influence of alcohol and substantially under

the influence of drugs.” See R.C. 2950.11(F)(2).

{¶9} The court imposed the agreed sentence for an aggregate of seven years

in prison with a credit of 871 days for time served. The trial court imposed a Tier III

sex-offender/child-victim-offender classification and found that R.C. 2950.11’s

community-notification requirement was appropriate based on Bella’s prior record,

the presentence investigation, and arguments by counsel. The court remitted costs and

fines, and noted that, because it was an agreed sentence, the court was not required to

make consecutive-sentencing findings under R.C. 2929.14(C)(4).

II. Law and Analysis

A. Community-Notification Requirement—R.C. 2950.11

{¶10} In Bella’s first assignment of error, he argues that the trial court abused

its discretion by imposing R.C. 2950.11’s community-notification requirements after

“find[ing] against all evidence” that Bella was subject to the requirement. 1 Bella

contends that the trial court erred by imposing the requirement after only citing to

Bella’s “prior record, the presentence investigation, and the arguments of counsel,”

and offered no further explanation.

1 Bella does not dispute his Tier III sex-offender classification or registration requirement. 4 OHIO FIRST DISTRICT COURT OF APPEALS

{¶11} R.C. 2950.11(A) subjects Tier III sex offenders to community-

notification requirements, in addition to their registration requirements. The statute

requires the sheriff in the county where the offender resides to provide written notice

to a myriad of people, such as neighbors, public children services agencies, school

superintendents and principals, preschool and daycare administrators, higher-

education administrators, the county sheriff, police, and volunteer organizations

serving children or vulnerable individuals. R.C. 2950.11(A)(1)-(10). The notice must

contain the offender’s name, home address, school address, employment address, the

offense of which the offender was convicted, a statement identifying what subjected

the offender to the notification requirements, and a photograph. R.C. 2950.11(B).

{¶12} Notification provisions do not apply to offenders if the trial court finds

at a hearing that the offender would not have been subject to notification provisions

in the statue that existed immediately before January 1, 2008. R.C. 2950(F)(2). To

make that determination, trial courts should consider:

(a) The offender’s age;

(b) The offender’s prior criminal or delinquency record regarding all

offenses, including, but not limited to, all sexual offenses;

(c) The victim’s age;

(d) Whether the sexually oriented offense involved multiple victims;

(e) Whether the offender used drugs or alcohol to impair the victim or

to prevent the victim from resisting;

(f) If the offender had a previous criminal or juvenile delinquency

record, whether the offender completed the sentence or dispositional

order imposed for the prior offense and, if the prior offense was a sex

5 OHIO FIRST DISTRICT COURT OF APPEALS

offense or a sexually oriented offense, whether the offender participated

in available programs for sexual offenders;

(g) Any mental illness or mental disability of the offender;

(h) The nature of the offender’s sexual conduct, sexual contact, or

interaction in a sexual context with the victim of the sexually oriented

offense and whether the sexual conduct, sexual contact, or interaction

in a sexual context was part of a demonstrated pattern of abuse;

(i) Whether the offender, during the commission of the sexually

oriented offense, displayed cruelty or made one or more threats of

cruelty;

(j) Whether the offender would have been a habitual sex offender or a

habitual child victim offender under the definitions of those terms in

R.C. 2950.01 as that section existed before January 1, 2008;

(k) Any additional behavioral characteristics that contribute to the

offender’s conduct.

R.C. 2950.11(F)(2)(a)-(k).

{¶13} Bella does not dispute his Tier III sex-offender classification or his

registration requirement. And the parties do not dispute that Bella is subject to R.C.

2950.11(A)’s community-notification provisions unless, after a hearing and

considering the R.C. 2950.11(F)(2)(a)-(k) factors, the trial court the trial court

determines that the defendant should excepted from the notification requirements.

“Thus, the sole issue on appeal is whether the trial court abused its discretion in

determining that appellant did not meet the exception in R.C. 2950.11(F)(2).” State v.

Starks, 2017-Ohio-40, 80 N.E.3d 1087, ¶ 6 (6th Dist.).

6 OHIO FIRST DISTRICT COURT OF APPEALS

{¶14} The trial court did not err by imposing R.C. 2950.11’s notification

requirement on Bella. Bella argues his youth (19 years old at the time of the offense)

should be a mitigating factor. But he was an adult when he committed these acts. And

despite these being Bella’s first sexually-oriented offenses, he has an “excessive”

juvenile record dating back to 2016 that reflects the commission of serious acts, as well

as an adult record. See R.C. 2950.11(F)(2)(b).

{¶15} M.G. was only 15 years old when Bella raped her. See R.C.

2950.11(F)(2)(c). Though Bella asserts that it is disputed whether he used alcohol and

Xanax to impair M.G., he chose not to try those allegations. See R.C. 2950.11(F)(2)(e).

Bella raped M.G. while she was unconscious from consuming alcohol and Xanax. Bella

knew that she was unaware of what was happening and could not protest.

{¶16} Bella has a history of failing to successfully complete dispositional

orders from his juvenile adjudications and sentences from adult convictions. See R.C.

2950.11(F)(2)(f). And the trial court had discretion to consider “any additional

behavioral characteristics that contribute[d]” to Bella’s conduct. R.C.

2950.11(F)(2)(k). The state informed the trial court that the officers reported that Bella

“had been a problem for the community for quite some time.”

{¶17} The statute gives the trial court discretion to determine whether a Tier

III sex offender is subject to the community-notification requirement. State v.

McConville, 124 Ohio St.3d 556, 2010-Ohio-958, 925 N.E.2d 133, ¶ 5. The trial court

expressly stated that it was basing its decision to subject Bella to this requirement

based on Bella’s prior record, the presentence investigation, and the arguments that

were made before the court. See Starks, 2017-Ohio-40, 80 N.E.3d 1087, at ¶ 6-10. The

7 OHIO FIRST DISTRICT COURT OF APPEALS

trial court did not abuse its discretion in imposing the requirement. This assignment

of error is overruled.

B. Merger of Offenses

{¶18} The defendant bears the burden of demonstrating that he is entitled to

merger at sentencing. State v. Pippin, 2017-Ohio-6970, 94 N.E.3d 1186, ¶ 48 (1st

Dist.), quoting State v. Washington, 137 Ohio St.3d 427, 2013-Ohio-4982, 999 N.E.2d

661, ¶ 18. We review the trial court’s merger determination de novo. See State v.

Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28.

{¶19} The Double Jeopardy Clause of the Fifth Amendment to the United

States Constitution provides that no person shall “be subject for the same offence to

be twice put in jeopardy of life or limb.” State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-

995, 34 N.E.3d 892, ¶ 10. This protection is also guaranteed by the Ohio Constitution,

Article I, Section 1. The Double Jeopardy Clause protects against “multiple

punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89

S.Ct. 2072, 23 L.Ed.2d 656 (1969).

{¶20} To determine whether a defendant’s conduct supports multiple

offenses, courts should consider: (1) whether the offenses were dissimilar in import or

significance, (2) whether the offenses were committed separately, and (3) whether the

offenses were committed with separate animus and motivation. Ruff at ¶ 31.

{¶21} Bella was convicted of two counts of sexual battery in violation of R.C.

2907.03(A)(2) and (3), both based on his raping M.G. while she was unconscious.

Bella’s second assignment of error argues that the trial court erred by not merging the

sexual-battery convictions for purposes of sentencing.

{¶22} R.C. 2907.03(A)(2) provides that no person “shall engage in sexual

8 OHIO FIRST DISTRICT COURT OF APPEALS

conduct with another” who is not the spouse of the offender when the offender knows

that the other person’s “ability to appraise the nature of or control the other person’s

own conduct is substantially impaired.” R.C. 2907.03(A)(3) provides that no person

“shall engage in sexual conduct with another” who is not the spouse of the offender

when the offender knows that the other person “submits because the other person is

unaware that the act is being committed.”

{¶23} Bella contends, and the state concedes, that the two charges of sexual

battery are allied offenses of similar import. We agree and sustain this assignment of

error. We remand the matter to the trial court to merge the sexual-battery counts and

resentence Bella on one of those counts.

III. Conclusion

{¶24} The trial court properly considered the factors as set forth in R.C.

2950.11(F)(2)(a)-(k). Therefore, it did not err by imposing the community-notification

requirement on Bella. But the trial court improperly sentenced Bella for two counts

that were allied offenses. Therefore, the sentences must be reversed. We remand this

case for the state to elect which sexual-battery conviction that the trial court is to

sentence Bella on, and for further proceedings consistent with this court’s opinion.

The trial court’s judgment is affirmed in all other respects.

Judgment affirmed in part, sentences reversed in part, and case remanded.

MYERS, P.J., and WINKLER, J., concur.

Please note:

The court has recorded its entry on the date of the release of this opinion.