State v. Cross

2018 Ohio 4606

• Court: Ohio Court of Appeals
• Decided: November 15, 2018
• Docket: 106728
• Status: Published

Opinion

[Cite as State v. Cross, 2018-Ohio-4606.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 106728

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

CHARLES CROSS

DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-617948-A

BEFORE: Jones, J., E.A. Gallagher, A.J., and Laster Mays, J.

RELEASED AND JOURNALIZED: November 15, 2018 ATTORNEY FOR APPELLANT

Allison S. Breneman 1220 West 6th Street, Suite 203 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Michael C. O’Malley Cuyahoga County Prosecutor

BY: Owen M. Patton Assistant County Prosecutor The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113

LARRY A. JONES, SR., J.:

{¶1} Defendant-appellant Charles Cross (“Cross”) appeals the trial court’s decision to

impose consecutive sentences on his attempted rape and burglary convictions. We affirm.

{¶2} In 2017, Cross was indicted on four counts of rape, two counts of gross sexual

imposition, and one count of burglary. He entered into plea negotiations with the state of Ohio

and agreed to plead guilty to one count of attempted rape and one count of burglary. He also

agreed that he would be required to register as a Tier III sex offender.

{¶3} The court referred Cross to the probation department for a presentence investigation

report. The court subsequently held a sentencing hearing. The victim spoke at sentencing.

The court sentenced Cross to eight years on each count to be served consecutive to each other for

a total sentence of 16 years in prison.

{¶4} It is from this judgment that Cross appeals, raising one assignment of error for our review: “I. The trial court erred by imposing consecutive sentences.”

{¶5} In his sole assignment of error, Cross contends that the trial court erred when it

imposed consecutive sentences on his burglary and attempted rape convictions. Cross concedes

that the court articulated the requisite factors to impose consecutive sentences on the record.

Instead, he complains that the facts do not support the imposition of consecutive sentences. We

take this to be a claim that “the record does not support the sentencing court’s findings.” R.C.

2953.08(G)(2);1 see State v. Bush, 8th Dist. Cuyahoga No. 106392, 2018-Ohio-4213, ¶ 24.

{¶6} A trial court must make specified findings pursuant to R.C. 2929.14(C)(4) before it

imposes consecutive sentences. State v. Magwood, 8th Dist. Cuyahoga No. 105885,

2018-Ohio-1634, ¶ 62. The court must find: consecutive terms are required to protect the

public from future crime or to punish the offender, (2) consecutive terms are not disproportionate

to the seriousness of the conduct and danger posed to the public, and (3) either the offender

committed at least one offense while awaiting trial or sentencing that multiple offenses were part

of a course of conduct, and the harm caused was so great or unusual that a single term does not

adequately reflect the seriousness of the offender’s conduct, or that the offender’s criminal

history is such that consecutive terms are necessary to protect the public. R.C. 2929.14(C)(4);

State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 22, 26.

{¶7} The trial court made the finding that consecutive sentences were required to protect

the public from future crime based on Cross’s previous convictions, that the victim was his

neighbor, and that he gained access to the victim’s apartment at night.

{¶8} The court also made the finding that consecutive sentences were not

1 This court may disturb a felony sentence only if we clearly and convincingly find that either “the record does not support the sentencing court’s findings” or “the sentence is otherwise contrary to law.” R.C. 2953.08(G)(2). disproportionate to the seriousness of the offender’s conduct or to the danger he poses to the

public. The court again noted that the crime occurred at night, that the victim was someone

who trusted Cross, and that although Cross pleaded guilty to an attempted rape, the victim told

the court that he did indeed rape her.

{¶9} Finally, the court found that Cross’s history of criminal conduct, which included

sexual battery, 2 breaking and entering, theft, trafficking, and escape, demonstrated that

consecutive sentences were necessary to protect the public from future crimes by the offender.

{¶10} We further find that there is sufficient evidence in the record to support

consecutive sentences. Cross and the victim were neighbors and had known each other for a

few years. Cross had access to the victim’s apartment and walked her dogs twice a day; in fact,

he had been in her apartment earlier in the day on the day of the attack. Cross knew that the

victim’s dogs would not alert the victim when he broke into her apartment because the dogs were

familiar with him. Cross often ran errands for the victim and checked up on her. On the night

of the attack, the victim was sleeping when Cross came into her apartment and forced

penile-vaginal penetration on the victim while his own wife slept in their apartment below. The

victim explained to the court the lasting psychological trauma the attack had on her.

{¶11} In light of the above, the trial court did not err in imposing consecutive sentences.

{¶12} Judgment affirmed.

It is ordered that appellee recover of appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common pleas

2 The trial court initially stated that Cross had a past rape conviction. The state told the court the conviction was for sexual battery. The court noted its misstatement and that the past conviction was for sexual battery, but “having considered that, the court’s judgment remains the same.” court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.

LARRY A. JONES, SR., JUDGE

EILEEN A. GALLAGHER, A.J., and ANITA LASTER MAYS, J., CONCUR