State v. Cox

2020 Ohio 4648

Opinion

[Cite as State v. Cox, 2020-Ohio-4648.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : Case No. CT2019-0080 : DUSTIN COX : : : Defendant-Appellee : OPINION

CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2019-0018

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: September 29, 2020

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

D. MICHAEL HADDOX TODD W. BARSTOW MUSKINGUM CO. PROSECUTOR 538 South Yearling Rd. Ste. 202 TAYLOR P. BENNINGTON Columbus, OH 43213 27 North Fifth St., P.O. Box 189 Zanesville, OH 43701 Muskingum County, Case No. CT019-0080 2

Delaney, J.

{¶1} Appellant Dustin Cox appeals from the October 1, 2019 Entry of the

Muskingum County Court of Common Pleas. Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} The following facts are adduced from appellee’s sentencing memorandum

of September 18, 2019.

{¶3} Appellant and his wife were estranged but briefly back together and living

with other people in a residence on Pershing Avenue. By all accounts, the other residents

of the home, including appellant but not his wife, used and sold methamphetamine from

the residence. On December 31, 2018, appellant was delusional and paranoid, and

became convinced his wife was cheating on him. They argued several times with others

present. Appellant went upstairs to confront his wife a final time. Witnesses downstairs

heard appellant say, “Fuck you bitch, I’m done with your shit,” immediately before he shot

his wife dead as she lay in bed. Appellant then ran from the residence and dropped the

firearm under a tree at a preschool.

{¶4} Appellant was charged by indictment with one count of aggravated murder

pursuant to R.C. 2903.01, an unclassified felony [Count I]; one count of tampering with

evidence pursuant to R.C. 2921.12(A), a felony of the third degree [Count II]; and one

count of murder pursuant to R.C. 2903.02(B), an unclassified felony [Count III]. Each

count was accompanied by a firearm specification pursuant to R.C.2941.145.

{¶5} Appellant entered pleas of not guilty.

{¶6} On August 16, 2019, appellant changed his pleas to ones of guilty upon

Counts II and III, pursuant to a negotiated plea agreement. Appellee agreed to dismiss Muskingum County, Case No. CT019-0080 3

Count I and the accompanying firearm specification. The parties further agreed appellee

would make no recommendation as to sentencing, but both prosecution and defense trial

counsel reserved the right to argue for appropriate sentencing. Appellant further agreed

to make restitution, and the parties stipulated that Counts II and III do not merge. Finally,

appellant acknowledged the trial court was not required to follow any sentencing

recommendation.

{¶7} The trial court accepted appellant’s pleas of guilty and found him guilty upon

Counts II and III. Sentencing was deferred pending a pre-sentence investigation (P.S.I.).

{¶8} Appellant appeared for sentencing on September 23, 2019. The trial court

noted it considered the record, the P.S.I., appellee’s plea recommendation, and victim-

impact statements, in addition to the principles and purposes of sentencing pursuant to

R.C. 2929.11 and the balance of seriousness and recidivism factors pursuant to R.C.

2929.12.

{¶9} The trial court sentenced appellant to a term of 36 months upon Count II,

consecutive to a term of 1 year upon the firearm specification, and to a mandatory term

of life in prison with parole eligibility after 15 years upon Count III, consecutive to a 3-year

term upon the firearm specification. The trial court ordered that all prison terms are to be

served consecutively for a total aggregate sentence of life in prison with the eligibility for

parole after 22 years.

{¶10} On the record at the sentencing hearing, the trial court noted appellant was

24 years old and his wife was 21 years old. Although appellant had no criminal history,

these crimes were precipitated by his drug abuse. Further, as appellant ran from the Muskingum County, Case No. CT019-0080 4

scene of the crime, he threw the firearm he used to murder his wife into a bunch of trees

near a daycare center, where it could have been discovered by a child.

{¶11} On the record at the sentencing hearing, and in the judgment entry of

sentence, the trial court noted pursuant to R.C. 2929.14(C)(4), imposition of consecutive

sentences is necessary to protect the public or to punish appellant, and that consecutive

sentences are not disproportionate to the seriousness of appellant’s conduct and to the

danger appellant poses to the public. The trial court further found at least two of the

multiple offenses were committed as part of one or more courses of conduct, and the

harm caused by one or more of the multiple offenses committed was so great or unusual

that no single prison term for any of the offenses so committed as part of any of the

courses of conduct adequately reflects the seriousness of appellant’s conduct.

{¶12} The “great or unusual harm” found by the trial court upon Count II was

based upon appellant’s conduct in disposing of the weapon near the daycare center,

which “was a separate and distinct act that resulted in the possibility of separate and

distinct victims in that case” requiring consecutive sentences. T. 20.

{¶13} Appellant now appeals from the trial court’s Entry of October 1, 2019.

{¶14} Appellant raises one assignment of error:

ASSIGNMENT OF ERROR

{¶15} “THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY

IMPROPERLY SENTENCING HIM TO CONSECUTIVE TERMS OF INCARCERATION

IN CONTRAVENTION OF OHIO’S SENTENCING STATUTES.” Muskingum County, Case No. CT019-0080 5

ANALYSIS

{¶16} In his sole assignment of error, appellant argues the trial court erred in

imposing consecutive prison terms. We disagree.

{¶17} Appellant was convicted upon one count of tampering with evidence, a

felony of the third degree, and one count of murder, an unclassified felony. Additionally,

appellant was convicted of firearm specifications upon both counts. The trial court

imposed consecutive prison terms of 36 months plus one year (Count II), and life in prison

with parole eligibility plus three years (Count III).

{¶18} Appellant argues the record of the instant case does not support

consecutive sentences. “[A]ppellate courts must adhere to the plain language of R.C.

2953.08(G)(2).” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231,

¶ 7. An appellate court may only modify or vacate a sentence if it finds by clear and

convincing evidence that the record does not support the sentencing court's

decision. Id. at ¶ 23. Clear and convincing evidence is that “‘which will produce in the

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

established.’” State v. Silknitter, 3rd Dist. Union No. 14–16–07, 2017-Ohio-327, ¶ 7,

citing Marcum, supra. Clear and convincing evidence is that measure or degree of proof

which is more than a mere “preponderance of the evidence,” but does not require the

certainty of “beyond a reasonable doubt.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d

118 (1954), paragraph three of the syllabus.

{¶19} In the instant case, appellant argues the trial court erred in imposing

consecutive terms because “the record is devoid of any actual harm caused by the

tampering charge,” let alone that the harm is great or unusual. Appellant argues the Muskingum County, Case No. CT019-0080 6

concern cited by the trial court--that a child could have discovered the firearm dumped

near the daycare--is merely speculative.

{¶20} We note appellant does not argue that the trial court failed to make the

proper findings; instead, he disagrees with the weight afforded to those findings. “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, but it has no obligation to state reasons to support its

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

{¶21} In Ohio, there is a statutory presumption in favor of concurrent sentences

for most felony offenses. R.C. 2929.41(A). The trial court may overcome this presumption

by making the statutory, enumerated findings set forth in R.C. 2929.14(C)(4). State v.

Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 23. R.C. 2929.14(C)(4)

concerns the imposition of consecutive sentences and provides:

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:

(a) The offender committed one or more of the multiple

offenses while the offender was awaiting trial or sentencing, was Muskingum County, Case No. CT019-0080 7

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.

{¶22} In this case, the record does establish, and appellant admits, that the trial

court made the findings required by R.C. 2929.14(C)(4) at the time it

imposed consecutive sentences. Appellant’s specific argument, though, is that the

speculative harm noted by the trial court regarding the firearm near the daycare does not

satisfy R.C. 2929.14(C)(4)(b).

{¶23} Appellee responds with two cases demonstrating trial courts may use

discretion in applying and weighing the consecutive-sentencing findings, and need not

make those findings in a vacuum, divorced from their own life experiences. In State v.

Saylor, a defendant sold counterfeit Percocet, and in sentencing the trial court noted the

risk of death to secondary buyers from pills containing Carfentanil in an “opiate-starved

community.” 2nd Dist. Champaign No. 2018-CA-14, 2019-Ohio-1025, ¶ 41. The Muskingum County, Case No. CT019-0080 8

defendant argued on appeal there was no connection between his conduct and the court's

finding of great or unusual harm because there was no evidence his counterfeit drugs

were different from other such drugs, and there was no showing as to the strength of his

counterfeit pills. Id., ¶ 43. The Second District Court of Appeals disagreed and noted “it

is within the discretion of the individual judge ‘to determine the weight to assign a

particular statutory factor,’ and when making such judgments, the sentencing court ‘is not

required to divorce itself from all personal experiences and make [its] decision in a

vacuum.’” Id. at ¶ 44, citing State v. Arnett, 88 Ohio St.3d 208, 215, 724 N.E.2d 793

(2000).

{¶24} In State v. Reyes, 8th Dist. Cuyahoga No. 105794, 2018-Ohio-494, at ¶ 12,

the trial court cited the seriousness of a defendant’s conduct, noting the extreme risk he

created in pouring gasoline throughout a house and onto a victim. The Eighth District

Court of Appeals disagreed with the defendant’s argument that his conduct was somehow

less serious because the gasoline did not actually ignite; the risk of the behavior did not

diminish the physical and psychological harm suffered by the victims. Id., ¶ 13.

{¶25} In the instant case, the trial court’s finding of great or unusual harm is also

based upon a risk, the risk posed by depositing a murder weapon near a daycare center.

Upon our review of the record, we agree with appellee that the trial court was entitled to

assess this factor based on life experience and to conclude that the harm was so great

or unusual that consecutive sentences are warranted. The trial court was not required to

discount this factor simply because a child did not find the firearm and suffer harm from

it. Muskingum County, Case No. CT019-0080 9

{¶26} In the sentencing entry, the trial court found that consecutive sentences are

necessary to protect the public from future crime or to punish the offender; are not

disproportionate to appellant's conduct and to the danger he poses to the public; and 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 offenses 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 would adequately reflect the seriousness of appellant's conduct.

{¶27} Based on our review, we find that the record demonstrates that the trial

court made the requisite findings. The sentence was within the statutory range. Moreover,

the record reveals that the trial court properly considered the statutory purposes and

factors of felony sentencing, and the decision is supported by clear and convincing

evidence. Accordingly, we find that the trial court did not err in the imposition of appellant's

prison sentence, including imposition of consecutive terms, and did not fail to consider

the statutory factors.

{¶28} Appellant’s sole assignment of error is overruled. Muskingum County, Case No. CT019-0080 10

CONCLUSION

{¶29} Appellant’s sole assignment of error is overruled and the judgment of the

Muskingum County Court of Common Pleas is affirmed.

By: Delaney, J.,

Gwin, P.J. and

Baldwin, J., concur.