State v. Fornbrook

2023 Ohio 1336

• Court: Ohio Court of Appeals
• Decided: April 24, 2023
• Docket: 2022 CA 00106
• Status: Published

Opinion

[Cite as State v. Fornbrook, 2023-Ohio-1336.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. Patricia A. Delaney, J. Plaintiff-Appellee : Hon. Andrew J. King, J. : -vs- : : Case No. 2022 CA 00106 CHRISTOPHER FORNCROOK : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Licking County Court of Common Pleas, Case 17CR955

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: April 24, 2023

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JENNY WELLS WILLIAM T. CRAMER Licking County Prosecutor 470 Olde Worthington Road, Suite 200 By: KENNETH W. OSWALT Westerville, OH 43082 Assistant County Prosecutor 20 S. Second Street, 4th Floor Newark, OH 43055 [Cite as State v. Fornbrook, 2023-Ohio-1336.]

Gwin, P.J.

{¶1} Defendant-appellant Christopher J. Forncrook [“Forncrook”] appeals from

the imposition of a prison sentence after he admitted violating the terms of his community

control in the Licking County Court of Common Pleas.

Facts and Procedural History

{¶2} In December 2017, Forncrook was indicted on two counts: (1) kidnapping

in violation of R.C. 2905.01(B)(1) as a second-degree felony because the victim was

released in a safe place unharmed; and (2) gross sexual imposition with a person less

than thirteen years of age in violation of R.C.2907.05(A)(4), a third-degree felony

{¶3} The state filed a bill of particulars that alleged on November 6, 2017,

Forncrook met with a twelve-year-old girl in Licking County and transported her to a hotel

in Columbus, Ohio, where he engaged in sexual contact with her. When he learned the

police were looking for him, he transported her back to Newark and released her so that

she could ride her bicycle home. Forncrook was subsequently interviewed by the police

and allegedly admitted to transporting the girl and having sexual contact with the girl. Bill

of Particulars, filed Jan 17, 2018. [Docket Entry No. 20].

{¶4} On June 12, 2018, Forncrook entered a negotiated guilty plea to the

Indictment. [Docket Entry No. 30]. The court accepted the guilty pleas, but declined to

merge the counts, finding that transportation to a hotel in the Columbus area subjected

the victim to a substantial increase in risk of harm separate and apart from that involved

in the gross sexual imposition. Accordingly, the court imposed a prison term of four years

on count one and a concurrent term of four years on count two. The court imposed a

mandatory period of five years of post-release control. The court also declared Forncrook Licking County, Case No. 2022 CA 00106 3

to be a Tier III sex offender. Judgement Entry, filed June 12, 2018. [Docket Entry No.

31].

{¶5} On December 24, 2018, Forncrook filed a motion for judicial release.

[Docket Entry No. 37]. The trial court overruled the motion by Judgment Entry filed

January 3, 2019. [Docket Entry No. 38].

{¶6} On March 7, 2019, Forncrook filed a motion for judicial release. [Docket

Entry No. 40]. The trial court overruled the motion by Judgment Entry filed April 29, 2019.

[Docket Entry No. 41].

{¶7} On May 20, 2019, Forncrook filed a motion for judicial release. [Docket

Entry No. 42]. The trial court overruled the motion by Judgment Entry filed November 4,

2019. [Docket Entry No. 46].

{¶8} On April 2, 2020, Forncrook filed a motion for judicial release. [Docket Entry

No. 49]. On July 6, 2020, the court granted the motion and modified Forncrook’s sentence

to three years of community control. The terms of community control included drug and

alcohol monitoring, a mental health treatment program, sex offender specific treatment,

150 hours of community service, a prohibition on possessing pornography, monitoring of

internet usage, a prohibition on unsupervised contact with anyone under the age of

eighteen, a no-contact order with the victim, and electronic monitoring. Judgement Entry,

filed July 6, 2020 at Exhibit A. [Docket Entry No. 59].

{¶9} On November 30, 2020, a motion to revoke Forncrook’s community control

was filed alleging,

10-29-20: The defendant failed to report internet identifiers to his

Wisconsin Probation Officer (this is an ICOTS case). Failure to report these Licking County, Case No. 2022 CA 00106 4

identifiers is a Class H felony in Wisconsin. Mr. Forncrook was given notice

of this law on September 8, 2020. He is not receiving any additional charges

at this time. The defendant admitted to not reporting these identifiers as he

stated he "knew it was not right."

10-26-20: The defendant violated several state of Wisconsin

probation terms related to the defendant's sex offense. The defendant had

evidence on his iPhone indicating he had been accessing the following

online dating applications: Hinge; Catholic Match and eHarmony. Several

conversations were found between the defendant via these applications,

emails, texts and/or messaging. The defendant was never approved to use

the internet.

9-5-20: The defendant engaged in unapproved contact with his minor

children after being told to cease all face to face contact with his children

until Wisconsin Probation Officers could speak with his ex-wife. The

defendant is to have all associations approved by his Probation Officer and

he is not to have contact with minor children.

Motion to Revoke Community Control, filed Nov. 30, 2020 [Docket Entry No. 63].

{¶10} On January 5, 2021, at the second stage hearing held before the trial judge,

Forncrook admitted that he had violated the terms of his community control. [Docket

Entry No. 70]. The court continued community control. The terms of community control

included drug and alcohol monitoring, a mental health treatment program, sex offender

specific treatment, 150 hours of community service, a prohibition on possessing

pornography, monitoring of internet usage, a prohibition on unsupervised contact with Licking County, Case No. 2022 CA 00106 5

anyone under the age of eighteen, a no-contact order with the victim, and obtain and

maintain employment. The court further included a term of house arrest “with or without”

electronic monitoring and the Volunteers of America halfway house program.

{¶11} On September 28, 2022, a motion to revoke Forncrook’s community control

was filed alleging that while under supervision in his home state of Wisconsin, Forncrook

on June 17, 2022, cut off his GPS monitor before absconding from supervision. Motion

to Revoke Community Control, filed Sept. 28,2022. [Docket Entry No. 81].

{¶12} On October 27, 2022, at the second stage hearing held before the trial

judge, Forncrook admitted that he had violated the terms of his community control.

Judgment Entry, filed Oct. 27, 2022. [Docket Entry No. 87]. Forncrook' s attorney

requested that community control be continued, noting that Forncrook was going through

a mental health crisis at the time he absconded. Forncrook had lost his job, was getting

evicted, and attempted to commit suicide by consuming pills. Forncrook' s attorney noted

that he had no substantial criminal history beyond this case.

{¶13} Forncrook also addressed the court directly and was apologetic, explaining

that he did not violate out of defiance, but rather desperation. Forncrook said he was

suffering from mental illness and requested a sentence somewhere between prison and

community control where he could get help for his mental health issues. Forncrook noted

that he sent the court a letter, and the judge indicated that he had read the letter. In the

letter, Forncrook noted that he was successful with programming in prison, where he was

found to be a non-violent offender with a low chance of recidivism. However, Forncrook

alleged that when his supervision was transferred to Wisconsin, the paperwork

erroneously indicated that he was involved in a violent kidnapping and rape. As a result, Licking County, Case No. 2022 CA 00106 6

he was labelled a sexually violent offender and was subject to the strictest sanctions and

GPS monitoring. Forncrook objected to the designation, but was told that it was the law.

The restrictions prevented him from having contact with his four children, and impacted

his housing and job opportunities, leading to him being homeless and unemployed. He

was also denied mental health treatment because he was deemed too dangerous to be

around other patients. Forncrook expressed remorse for absconding and asked to be put

back in the Volunteers of America program, where he had been successful.

{¶14} The trial court found that prison was appropriate and reimposed the prior

four years, with 1029 days of confinement credits. The court also imposed a mandatory

five years of post-release control and declared Forncrook to be a Tier III sex offender.

Forncrook was ordered to pay costs, but not fines.

Assignment of Error

{¶15} Forncrook raises one Assignment of Error,

{¶16} “I. THE TRIAL COURT ABUSED ITS DISCRETION BY TERMINATING

JUDICIAL RELEASE AND RE-IMPOSING APPELLANT'S SUSPENDED PRISON TERM

AFTER APPELLANT SUFFERED A MENTAL HEALTH BREAKDOWN AND

ABSCONDED FROM SUPERVISION WITHOUT COMMITTING ANY ADDITIONAL

CRIMES.”

Law and Analysis

Standard of Appellate Review

{¶17} The right to continue community control depends on compliance with

community control conditions and “is a matter resting within the sound discretion of the

court.” State v. Garrett, 5th Dist. Stark No. 2010 CA 00210, 2011-Ohio-691, ¶ 13; State v. Licking County, Case No. 2022 CA 00106 7

Schlecht, 2nd Dist. Champaign No. 2003-CA-3, 2003-Ohio-5336, citing State v. Johnson,

2nd Dist. Montgomery No. 17420, 2001 WL 561312(May 25, 2001).

{¶18} A community control revocation hearing is not a criminal trial. State v.

White, 5th Dist. Stark No. 2009-CA-00111, 2009–Ohio–6447. Once a court finds a

defendant violated the terms of community control, the decision whether to revoke

community control lies within the court’s sound discretion. State v. White, supra at ¶ 14.

Thus, a reviewing court will not reverse a trial court’s decision absent an abuse of

discretion. State v. Sheets, 112 Ohio App.3d 1, 677 N.E.2d 818 (4th Dist. 1996); State v.

Ritenour, 5th Dist. Tuscarawas No. 2006AP010002, 2006-Ohio-4744, ¶ 37. As the Ohio

Supreme Court has recently explained,

The term “abuse of discretion” connotes that “‘the court’s attitude is

unreasonable, arbitrary or unconscionable.’” [State v. Gondor, 112 Ohio

St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77] at ¶ 60, quoting State v. Adams,

62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). Stated differently, an

abuse of discretion involves more than a difference in opinion: the “‘term

discretion itself involves the idea of choice, of an exercise of the will, of a

determination made between competing considerations.’” State v. Jenkins,

15 Ohio St.3d 164, 222, 473 N.E.2d 264 (1984), quoting Spalding v.

Spalding, 355 Mich. 382, 384, 94 N.W.2d 810 (1959). For a court of appeals

to reach an abuse-of-discretion determination, the trial court’s judgment

must be so profoundly and wholly violative of fact and reason that “‘it

evidences not the exercise of will but perversity of will, not the exercise of Licking County, Case No. 2022 CA 00106 8

judgment but defiance thereof, not the exercise of reason but rather of

passion or bias.’” Id., quoting Spalding at 384-385, 94 N.W.2d 810.

State v. Weaver, Slip Op. 2022-Ohio-4371, ¶24 (Dec. 8, 2022). An abuse of discretion

can be found where the reasons given by the court for its action are clearly untenable,

legally incorrect, or amount to a denial of justice, or where the judgment reaches an end

or purpose not justified by reason and the evidence. Tennant v. Gallick, 9th Dist. Summit

No. 26827, 2014-Ohio-477, ¶35; In re Guardianship of S.H., 9th Dist. Medina No.

13CA0066–M, 2013–Ohio–4380, ¶ 9; State v. Firouzmandi, 5th Dist. Licking No. 2006–

CA–41, 2006–Ohio–5823, ¶54.

{¶19} The weight to be given to the evidence and the credibility of the witnesses

are issues for the trier of fact. State v. Jamison, 49 Ohio St.3d 182, 552 N.E.2d 180

(1990), certiorari denied, 498 U.S. 881, 111 S.Ct. 228, 112 L.Ed.2d 183(1990).

Reviewing courts should accord deference to the trial court’s decision because the trial

court has had the opportunity to observe the witnesses’ demeanor, gestures, and voice

inflections which cannot be conveyed to us through the written record. Miller v. Miller, 37

Ohio St.3d 71, 523 N.E.2d 846(1988).

Issue for Appellate Review: Whether the trial court abused its discretion

by revoking Forncrook’s community control and imposing the suspended prison term

{¶20} Forncrook argues, in essence, that his mental health problems constitute a

mitigating factor. See, State v. Wolfe, 5th Dist. Stark No. 2008-CA-00064, 2009-Ohio-

830. However, Forncrook’s act of removing his GPS monitor was undoubtably a

voluntary, conscious act. Forncrook admits as much in his letter to the trial judge filed

October 27, 2022. Licking County, Case No. 2022 CA 00106 9

{¶21} Forncrook was previously violated for not following the community control

terms imposed in Wisconsin. Motion to Revoke Community Control, filed Nov 30, 2020.

[Docket Entry No. 63]. Thus, Forncrook had an opportunity at the previous revocation

hearing to bring to the trial judge’s attention any claims that he was subjected to

inappropriate or unauthorized conditions of community control supervision. Furthermore,

Forncrook could have filed a motion with the trial court to modify, correct or clarify the

terms of his community control supervision instead of simply choosing to ignore them.

Forncrook was advised when he previously violated the conditions of his community

control that any further violations would result in the imposition of the suspended prison

sentence. Judgement Entry, filed July 6, 2020 at Exhibit A, Residential Sanctions No. 5

[Docket Entry No. 70].

{¶22} Forncrook did not give the trial judge any evidence documenting his alleged

mental breakdown. Forncrook did not provide the trial judge with any evidence or

affidavits to substantiate that he was labeled a sexually violent offender, or that he was

denied treatment because of his designation. Forncrook chose to admit the violations

rather than present evidence during the revocation hearing. Thus, the record contains no

evidence to substantiate Forncrook’s claim that he suffered a mental health crisis that led

him to cut off his ankle monitor and abscond from supervision. Strict supervision

requirements and electronically monitored house arrest do not justify removing the ankle

monitor and absconding from supervision. Though the conditions may be difficult, they

are not unreasonable. Licking County, Case No. 2022 CA 00106 10

{¶23} Because Forncrook failed to establish an adequate record for mitigation, we

cannot find that the trial court abused its discretion in revoking community control and

imposing sentence.

{¶24} Forncrook’s sole Assignment of Error is overruled.

{¶25} The judgment of the Licking County Court of Common Pleas is affirmed.

By: Gwin, P.J.,

Delaney, J., and

King, J., concur