State v. Glenn

2021 Ohio 264

• Court: Ohio Court of Appeals
• Decided: February 1, 2021
• Docket: 9-19-64
• Status: Published

Opinion

[Cite as State v. Glenn, 2021-Ohio-264.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 9-19-64

v.

SALENA GLENN, OPINION DEFENDANT-APPELLANT.

Appeal from Marion County Common Pleas Court Trial Court No. 19-CR-0122

Judgment Affirmed in Part, Reversed in Part and Cause Remanded

Date of Decision: February 1, 2021

APPEARANCES:

W. Joseph Edwards for Appellant

Nathan R. Heiser for Appellee Case No. 9-19-64

PRESTON, J.

{¶1} Defendant-appellant, Salena N. Glenn (“Glenn”), appeals the

September 17, 2019 judgment of sentence of the Marion County Court of Common

Pleas. For the reasons that follow, we affirm in part and reverse in part.

{¶2} On March 21, 2019, agents of a multi-jurisdictional drug task force

conducted a search of a residence at 223 West Columbia Street, Marion, Ohio (“223

West Columbia”) pursuant to a search warrant. Inside the residence, law

enforcement officers located drugs, and Illya Green (“Green”) and Kevin Swift

(“Swift”) were arrested. Outside the residence, law enforcement officers heard a

noise and located Glenn attempting to leave the residence in her vehicle. During a

subsequent search of Glenn’s vehicle, law enforcement officers located substances

which were later determined to be cocaine and a mixture of fentanyl and heroin.

{¶3} On April 4, 2019, the Marion County Grand Jury issued a joint

indictment charging Glenn, Green, and Swift with a variety of offenses. (Doc. No.

2). Specifically, the Marion County Grand Jury indicted Glenn on six counts:

Count One of trafficking in cocaine in violation of R.C. 2925.03(A)(2), (C)(4), a

first-degree felony; Count Two of possession of cocaine in violation of R.C.

2925.11(A), (C)(4), a first-degree felony; Count Three of aggravated possession of

fentanyl in violation of R.C. 2925.11(A), (C)(11), a second-degree felony; Count

Four of tampering with evidence in violation of R.C. 2921.12(A), a third-degree

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felony; Count Five of trafficking in heroin in violation of R.C. 2925.03(A)(1),

(C)(6), a fourth-degree felony; and Count Six of aggravated possession of drugs in

violation of R.C. 2925.11(A)(1), (C)(1), a fourth-degree felony. (Id.). Count Two

contained a major drug offender specification under R.C. 2941.1410 and Count Five

contained a forfeiture specification under R.C. 2941.1417. (Id.). On April 8, 2019,

Glenn appeared for arraignment and entered pleas of not guilty to the counts and

specifications in the indictment. (Doc. No. 7).

{¶4} On May 31, 2019, Glenn filed a motion for additional discovery. (Doc.

No. 37). In the motion, Glenn requested that the trial court compel the State to

provide her with any and all video recordings, police reports, and documentation

regarding controlled buys at 223 West Columbia on February 26, 2019, February

28, 2019, March 12, 2019, March 14, 2019, and March 20, 2019. (Id.). Glenn

argued that the information was discoverable under Crim.R. 16 because it was

“material to mitigation, exculpation, or impeachment.” (Id.).

{¶5} On June 7, 2019, the State filed its memorandum in opposition to

Glenn’s motion for additional discovery. (Doc. No. 38). The State argued that,

although the five prior controlled buys were referenced in the affidavit for the search

warrant which was executed on March 21, 2019, neither Glenn nor her co-

defendants were charged with any crimes relating to those transactions. (Id.).

Further, the State argued that Glenn failed to demonstrate that she would be

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prejudiced by non-disclosure of the controlled buys detailed in the search warrant

affidavit. (Id.).

{¶6} On June 11, 2019, the trial court held a hearing on Glenn’s motion for

additional discovery. (Doc. No. 39). At the conclusion of the hearing, the trial court

denied Glenn’s motion for additional discovery. (June 11, 2019 Tr. at 30). (See

Doc. No. 39).

{¶7} The case proceeded to a jury trial on August 22, 23, and 26, 2019. (See

Doc. No. 113). Prior to the commencement of trial, the trial court dismissed Counts

Five and Six of the indictment and the forfeiture specification that related to Count

Five of the indictment. (Id.). At the close of the State’s case, Glenn made a motion

for acquittal under Crim.R. 29, which the trial court denied. (Aug. 26, 2019 Tr. at

709-717). On August 26, 2019, the jury found Glenn guilty of all the remaining

counts in the indictment and the major drug offender specification associated with

Count Two. (Doc. Nos. 105, 106, 107, 108). (See Doc. No. 113).

{¶8} A sentencing hearing was held on September 16, 2019. (Doc. No.113).

Upon agreement of the parties, the trial court found that Counts One and Two

merged for purposes of sentencing. (Id.). Accordingly, the State elected to sentence

Glenn on Count Two. (Id.). The trial court sentenced Glenn to a mandatory term

of 11 years in prison on Count Two, a mandatory term of 7 years in prison on Count

Three, and 24 months in prison as to Count Four. (Id.). Further, the trial court

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ordered that the sentences should be served consecutively to each other for an

aggregate prison term of 20 years. (Id.). The following day, the trial court filed its

judgment entry of sentence. (Id.).

{¶9} On October 16, 2019, Glenn filed her notice of appeal. (Doc. No. 117).

She raises three assignments of error for our review. For ease of discussion, we

review the second and third assignments of error out of order.

Assignment of Error No. I

The trial court’s numerous errors involving evidentiary issues denied appellant the right to present a defense thereby violating her constitutional due process rights to a fair trial under the State and Federal Constitutions. (Record Reference: Transcript of Pre-Trial (Date 6/11/19), Tr. Vol. III, pp. 602-650)

{¶10} In the first assignment of error, Glenn argues that the trial court abused

its discretion by not permitting her to introduce two pieces of evidence at trial which

could have been used to establish the defense that she did not possess or traffic drugs

and that the drugs found at the scene and in her vehicle instead belonged to Green.

{¶11} First, Glenn argues that the trial court did not permit her to introduce

evidence of the five prior controlled buys at 223 West Columbia which apparently

do not show her trafficking drugs. Glenn contends that because she was not

trafficking drugs during those controlled buys, the videos of the controlled buys

could be used to advance her defense that she was not trafficking or knowingly

possessing drugs on March 21, 2019. Moreover, Glenn argues the evidence of the

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prior buys supports her defense that Green was selling drugs from the location and

that she was merely in the wrong place at the wrong time.

{¶12} Second, Glenn argues that the trial court erred by not admitting a

statement made by Green to Deputy Stacy McCoy (“Deputy McCoy”) during the

execution of the search warrant. Importantly, Green invoked his Fifth Amendment

right to remain silent and did not testify at Glenn’s trial. However, Glenn offered

the proferred testimony of Deputy McCoy, wherein Deputy McCoy testified to

statements Green made to her on March 21, 2019 during the execution of the search

warrant. Specifically, Deputy McCoy testified that Green told her that Glenn “had

nothing to do” with the drugs found at the residence and “took all responsibility”

for the drugs therein. (Aug. 26, 2019 Tr. at 614). Glenn sought to introduce Green’s

statements under Evid.R. 804(B)(3), which allows for the introduction of hearsay

statements when the declarant is unavailable. (Id. at 633-639). However, the trial

court determined that Green’s statements were not admissible. (Id. at 639-643).

{¶13} Glenn argues that by not permitting her to introduce these two pieces

of evidence, the trial court committed cumulative error which prevented her from

providing a credible defense that the drugs belonged to Green and, accordingly,

denied her the right to a fair trial.

{¶14} “Under [the] doctrine of cumulative error, a conviction will be

reversed when the cumulative effect of errors in a trial deprives a defendant of a fair

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trial though each of the numerous instances of trial court error does not individually

constitute cause for reversal.” State v. Spencer, 3d Dist. Marion No. 9-13-50, 2015-

Ohio-52, ¶ 83, citing State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, ¶ 222-

224 and State v. Garner, 74 Ohio St.3d 49, 64 (1995). “‘To find cumulative error,

a court must first find multiple errors committed at trial and determine that there is

a reasonable probability that the outcome below would have been different but for

the combination of the harmless errors.’” State v. Stober, 3d Dist. Putnam No. 12-

13-13, 2014-Ohio-5629, ¶ 15, quoting In re J.M., 3d Dist. Putnam No. 12-11-06,

2012-Ohio-1467, ¶ 36.

{¶15} Generally, the admission or exclusion of evidence lies within the trial

court’s discretion, and a reviewing court should not reverse absent an abuse of

discretion and material prejudice. State v. Conway, 109 Ohio St. 3d 412, 2006-

Ohio-2815, ¶ 62, citing State v. Issa, 93 Ohio St.3d 49, 64 (2001). An abuse of

discretion implies that the court’s attitude was unreasonable, arbitrary, or

unconscionable. State v. Adams, 62 Ohio St.2d 151, 157 (1980). “When applying

the abuse of discretion standard, a reviewing court is not free to merely substitute

its judgment for that of the trial court.” In re Jane Doe 1, 57 Ohio St.3d 135, 137-

138 (1991).

{¶16} “Evidence which is not relevant is not admissible.” Evid.R. 402.

Evidence is relevant when it has “any tendency to make the existence of any fact

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that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence.” Evid.R. 401. “Under Evid.R.

403(A), ‘[a]lthough relevant, evidence is not admissible if its probative value is

substantially outweighed by the danger of unfair prejudice, of confusion of the

issues, or of misleading the jury.’” State v. Velez, 3d Dist. Putnam No. 12-13-10,

2014-Ohio-1788, ¶ 122, quoting State v. Maag, 3d Dist. Hancock No. 5-03-32,

2005-Ohio-3761, ¶ 71. Unfair prejudice is that quality of evidence which might

result in an improper basis for a jury decision.’” Id., quoting State v. Calhoun, 11th

Dist. Ashtabula No. 2010-A-0057, 2012-Ohio-1128, ¶ 82. “‘[D]espite the

mandatory terms of Evid.R. 403(A), when considering evidence under that rule, the

trial court is vested with broad discretion and an appellate court should not interfere

absent a clear abuse of that discretion.’” State v. Nevins, 171 Ohio App.3d 97, 2007-

Ohio-1511, ¶ 49 (2d Dist.), quoting State v. Harding, 2d Dist. Montgomery No.

20801, 2006-Ohio-481, ¶ 21.

{¶17} We turn first to Glenn’s argument relating to the five prior controlled

buys at 223 West Columbia. Glenn argues in her brief that the trial court erred by

not allowing her to admit evidence of the prior controlled buys at 223 West

Columbia, the location of her arrest. However, Glenn’s argument neglects the fact

that this evidence was not even available to her for potential admission. In Glenn’s

May 31, 2019 motion for additional discovery, she argued that the State should be

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compelled under Crim.R. 16 to produce video recordings, police reports, and

documentation relating to controlled buys at 223 West Columbia on February 26,

2019, February 28, 2019, March 12, 2019, March 14, 2019, and March 20, 2019.

Specifically, Glenn argued that under Crim.R. 16, the information relating to the

five previous controlled buys was discoverable to her because it is “material to

mitigation, exculpation, or impeachment.” (Doc. No. 37). The trial court denied

Glenn’s motion for additional discovery. Accordingly, although Glenn frames her

argument in the context of whether the potential evidence at issue should have been

excluded from the trial, the potential evidence was not discoverable and, therefore,

was not able to be offered at trial. Thus, rather than determining whether the trial

court erred by not admitting the evidence at trial, our analysis must first focus on

whether the trial court erred by not compelling the State to provide Glenn with the

video recordings, police reports, and documentation relating to the five previous

controlled buys at the residence.

{¶18} Crim.R. 16 provides the discovery rules for criminal proceedings.

State v. Engle, 166 Ohio App.3d 262, 2006-Ohio-1884, ¶ 7 (3d Dist.). “‘The trial

court has discretion to regulate discovery in a manner consistent with Crim.R. 16.’”

State v. Dahms, 3d Dist. Seneca No. 13-16-16, 2017-Ohio-4221, ¶ 114, quoting

State v. Mobley, 2d Dist. Montgomery No. 26858, 2016-Ohio-4579, ¶ 23.

Accordingly, “we review a trial court’s response to allegations of noncompliance

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with the criminal-discovery rules under an abuse-of-discretion standard.” Id., citing

State v. Wilson, 192 Ohio App.3d 189, 2011-Ohio-155, ¶ 54 (11th Dist.).

{¶19} The purpose of Crim.R. 16 “is to provide all parties in a criminal case

with the information necessary for a full and fair adjudication of the facts, to protect

the integrity of the justice system and the rights of defendants, and to protect the

well-being of witnesses, victims, and society at large.” Crim.R. 16(A). Crim.R.

16(B) states:

(B) Upon receipt of a written demand for discovery by the defendant,

and except as provided in division (C), (D), (E), (F), or (J) of this rule,

the prosecuting attorney shall provide copies or photographs, or

permit counsel for the defendant to copy or photograph, the following

items related to the particular case indictment, information, or

complaint, and which are material to the preparation of a defense, or

are intended for use by the prosecuting attorney as evidence at the

trial, or were obtained from or belong to the defendant, within the

possession of, or reasonably available to the state, subject to the

provisions of this rule:

(1) Any written or recorded statement by the defendant or a co-

defendant, including police summaries of such statements, and

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including grand jury testimony by either the defendant or co-

defendant;

(2) Criminal records of the defendant, a co-defendant, and the record

of prior convictions that could be admissible under Rule 609 of the

Ohio Rules of Evidence of a witness in the state’s case-in-chief, or

that it reasonably anticipates calling as a witness in rebuttal;

(3) Subject to divisions (D)(4) and (E) of this rule, all laboratory or

hospital reports, books, papers, documents, photographs, tangible

objects, buildings, or places;

(4) Subject to division (D)(4) and (E) of this rule, results of physical

or mental examinations, experiments or scientific tests;

(5) Any evidence favorable to the defendant and material to guilt or

punishment;

(6) All reports from peace officers, the Ohio Highway Patrol, and

federal law enforcement agents, provided however, that a document

prepared by a person other than the witness testifying will not be

considered to be the witness’s prior statement for purposes of the cross

examination of that particular witness under the Rules of Evidence

unless explicitly adopted by the witness;

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(7) Any written or recorded statement by a witness in the state’s

case-in-chief, or that it reasonably anticipates calling as a witness in

rebuttal.

Crim.R. 16(B).

{¶20} The United States Supreme Court has held that “the suppression by

the prosecution of evidence favorable to an accused upon request violates due

process where the evidence is material either to guilt or to punishment, irrespective

of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83,

87, 83 S.Ct. 1194 (1963). In recognition thereof, Crim.R. 16(B)(5) requires the

prosecutor to disclose “[a]ny evidence favorable to the defendant and material to

guilt or punishment.” “However, ‘the principles of Brady do not apply unless the

evidence is material to mitigation, exculpation, or impeachment.’” State v. Griffin,

3d Dist. Allen No. 1-03-31, 2004-Ohio-287, ¶ 9, quoting State v. Keene, 81 Ohio

St.3d 646 (1998), citing Calley v. Callaway, 519 F.2d 184, 221 (5th Cir.1975).

{¶21} “Evidence is material if there is a ‘“reasonable probability”’ that the

result of the trial would have been different had the evidence been disclosed to the

defense.” State v. Osie, 140 Ohio St.3d 131, 2014-Ohio-2966, ¶ 153, quoting Kyles

v. Whitley, 514 U.S. 419, 433, 115 S.Ct. 1555 (1995), quoting United States v.

Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375 (1985). “‘A “reasonable probability” is

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probability sufficient to undermine confidence in the outcome.’” Id., quoting State

v. Johnston, 39 Ohio St.3d 48 (1988), paragraph five of the syllabus.

{¶22} Glenn argued that, by failing to provide her with the video recordings,

police reports, and documentation related to the five prior controlled buys at 223

West Columbia, which formed the basis of the search warrant executed on March

21, 2019, the State was withholding discoverable information which was material

to mitigation, exculpation, or impeachment. We disagree.

{¶23} First, at the hearing on Glenn’s motion for additional evidence, the

trial court, with the agreement of the State, offered to review the requested discovery

in camera to determine whether it contained potential exculpatory evidence. (June

11, 2019 Tr. at 24-25, 27-28, 36-37). However, Glenn’s attorney repeatedly rejected

the trial court’s offer to review the requested material. (Id.). Accordingly, by

Glenn’s attorney’s action, the trial court did not have the opportunity to review the

potential evidence. Further, the potential evidence was never made part of the

record. Because the potential evidence is not included in the record, we cannot find

that the evidence requested was related to the indictment or that it was material to

the preparation of Glenn’s defense. See State v. Hebdon, 12th Dist. Butler Nos.

CA2012-03 and CA2012-03-062, 2013-Ohio-1729, ¶ 54 (holding that because there

was not an indication in the record that the appellant requested to have copies of the

potential evidence sealed and placed in the record to preserve the issue for appellate

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review, the court “cannot find that the evidence requested was related to the

particular case, indictment, or complaint, or that it was material to the preparation

of appellant’s defense”); State v. Darrah, 12th Dist. Warren No. CA2006-09-109,

2007-Ohio-7080, ¶ 29 (finding that “[b]ecause [the potential evidence] is not

included in the record, it is impossible for appellant to prove that the evidence

requested was favorable” and, therefore, “it is impossible for appellant to prove that

he was prejudiced by the trial court’s decision to deny his motion to compel”).

{¶24} Further, Crim.R. 16(B) requires the disclosure of “items related to the

particular case indictment, information, or complaint.” Here, the indictment and

bill of information only specified conduct which occurred on March 21, 2019. (Doc.

Nos. 2, 14). Moreover, the State confirmed that it would not present any evidence

at trial other than that pertaining to conduct on March 21, 2019. (June 11, 2019 Tr.

at 16-18). Additionally, the State testified that it would not make any argument at

trial as to modus operandi, prior drug possession, or sales with regard to Glenn or

any of her co-defendants and that it would not call witnesses to testify regarding the

five prior controlled buys at the residence. (Id. at 18).1 See Hebdon at ¶ 54.

Accordingly, we cannot find that the trial court abused its discretion by denying

Glenn’s motion for additional evidence.

1 We note that Glenn does not argue that the State presented or attempted to present evidence at trial other than that pertaining to the events of March 21, 2019. (Appellant’s Brief at 11-12). Rather, Glenn’s argument focuses on her inability to discover and present evidence relating to the five prior controlled buys for the purpose of developing her defense.

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{¶25} Having determined that the trial court did not abuse its discretion by

denying Glenn’s motion for additional evidence, we need not address Glenn’s

argument that the trial court erred by declining to admit statements made by Green

during the execution of the March 21, 2019 search warrant. Under the doctrine of

cumulative error, under which Glenn makes her argument, a court must first find

multiple errors committed at trial. Spencer, 2015-Ohio-52, at ¶ 83; Stober, 2012-

Ohio-1467, at ¶ 36. Here, even if we assume (without deciding) that the trial court

committed harmless error by failing to admit statements made by Green during the

execution of the March 21, 2019 search warrant, the cumulative error doctrine

would still not be applicable because it requires the finding of multiple errors. Id.;

id. See State v. Bower, 3d Dist. Shelby No. 17-14-14, 2015-Ohio-1889, ¶ 25.

{¶26} Accordingly, Glenn’s first assignment of error is overruled.

Assignment of Error No. III

The jury’s verdicts were against the manifest weight of the evidence in violation of the United States Constitution and the Ohio Constitution. (Record Reference: Judgment Entry)

{¶27} In her third assignment of error, Glenn argues that her convictions are

against the manifest weight of the evidence.

{¶28} In determining whether a conviction is against the manifest weight of

the evidence, a reviewing court must examine the entire record, “‘weigh[] the

evidence and all reasonable inferences, consider[] the credibility of witnesses and

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determine[] whether in resolving conflicts in the evidence, the [trier of fact] clearly

lost its way and created such a manifest miscarriage of justice that the conviction

must be reversed and a new trial ordered.’” State v. Thompkins, 78 Ohio St.3d 380,

387 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A

reviewing court must, however, allow the trier of fact appropriate discretion on

matters relating to the weight of the evidence and the credibility of the witnesses.

State v. DeHass, 10 Ohio St.2d 230, 231 (1967). When applying the manifest-

weight standard, “[o]nly in exceptional cases, where the evidence ‘weighs heavily

against the conviction,’ should an appellate court overturn the trial court’s

judgment.” State v. Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9,

quoting State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.

{¶29} However, we note that Glenn offers no support for her argument that

her convictions are against the manifest weight of the evidence. Rather, Glenn’s

sole argument related to her third assignment of error is as follows: “Counsel has

cited the relevant portion of [the] transcript contained herein as to why the State

believes the verdict was correct, however to preserve Appellant’s rights for future

review, seeks the Court to review the facts contained within this testimony to see if

they establish all requisite elements of the offenses.” (Appellant’s Brief at 16).

{¶30} “‘[A] defendant has the burden of affirmatively demonstrating the

error of the trial court on appeal.’” State v. Costell, 3d Dist. Union No. 14-15-11,

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2016-Ohio-3386, ¶ 86, quoting State v. Stelzer, 9th Dist. Summit No. 23174, 2006-

Ohio-6912, ¶ 7. “Moreover, ‘[i]f an argument exists that can support this

assignment of error, it is not this court’s duty to root it out.’” Stelzer at ¶ 7, quoting

State v. Cook, 9th Dist. Summit No. 20675, 2002-Ohio-2646, ¶ 27. “App.R.

12(A)(2) provides that an appellate court ‘may disregard an assignment of error

presented for review if the party raising it fails to identify in the record the error on

which the assignment of error is based or fails to argue the assignment separately in

the brief, as required under App.R. 16(A).’” State v. Jackson, 10th Dist. Franklin

No. 14AP-670, 2015-Ohio-3322, ¶ 11, quoting App.R. 12(A)(2). “Additionally,

App.R. 16(A)(7) requires that an appellant’s’ brief include ‘[a]n argument

containing the contentions of the appellant with respect to each assignment of error

presented for review and the reasons in support of the contentions, with citations to

the authorities, statutes, and parts of the record on which appellant relies.’” Id.,

quoting App.R. 16(A)(7). Here, not only did Glenn fail to include an argument

regarding how her convictions were against the manifest weight of the evidence, but

she also failed to provide citations to the authorities, statutes, and parts of the record

that support her argument. Thus, we need not address Glenn’s argument that her

convictions are against the manifest weight of the evidence.

{¶31} Accordingly, Glenn’s third assignment of error is overruled.

Assignment of Error No. II

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The trial court erred in imposing a prison term consecutive to another prison term because there was no finding that the sentence was not disproportionate to any danger the defendant may pose to the public and the trial court failed to identify specific reasons in support of its finding that consecutive sentences were appropriate. (Record Reference: Judgment Entry)

{¶32} In her second assignment of error, Glenn argues that the trial court

erred by sentencing her to 20 years in prison. Specifically, she contends that the

trial court erred by imposing consecutive sentences because it did not make the

requisite consecutive sentence findings on the record. Further, Glenn argues that

the trial court erred by imposing consecutive sentences because it failed to identify

specific reasons in support of its finding that consecutive sentences were

appropriate.

{¶33} “Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence

‘only if it determines by clear and convincing evidence that the record does not

support the trial court’s findings under relevant statutes or that the sentence is

otherwise contrary to law.’” State v. Nienberg, 3d Dist. Putnam Nos. 12-16-15 and

12-16-16, 2017-Ohio-2920, ¶ 8, quoting State v. Marcum, 146 Ohio St.3d 516,

2016-Ohio-1002, ¶ 1. “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.”’” Id., quoting Marcum at ¶ 22, quoting Cross v. Ledford, 161 Ohio

St. 469 (1954), paragraph three of the syllabus.

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{¶34} Here, Glenn does not challenge the length of any of the sentences

imposed. Rather, Glenn challenges only the trial court’s determination that the

sentences should be served consecutively to each other. Accordingly, we limit our

review to a consideration of whether the trial court made the necessary findings

prior to imposing consecutive sentences and whether those findings are supported

by the record.

{¶35} “Except as provided in * * * division (C) of section 2929.14, * * * a

prison term, jail term, or sentence of imprisonment shall be served concurrently with

any other prison term, jail term, or sentence of imprisonment imposed by a court of

this state, another state, or the United States.” R.C. 2929.41(A). R.C. 2929.14(C)

provides:

(4) * * * [T]he 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 under a

sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of

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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.

R.C. 2929.14(C).

{¶36} R.C. 2929.14(C)(4) requires a trial court to make specific findings on

the record when imposing consecutive sentences. State v. Hites, 3d Dist. Hardin

No. 6-11-07, 2012-Ohio-1892, ¶ 11; State v. Peddicord, 3d Dist. Henry No. 7-12-

24, 2013-Ohio-3398, ¶ 33. Specifically, the trial court must find: (1) consecutive

sentences are necessary to either protect the public or punish the offender; (2) the

sentences would not be disproportionate to the offense committed; and (3) one of

the factors in R.C. 2929.14(C)(4)(a), (b), or (c) applies. Id.; Id.

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{¶37} The trial court must state the required findings at the sentencing

hearing prior to imposing consecutive sentences and incorporate those findings into

its sentencing entry. State v. Sharp, 3d Dist. Putnam No. 12-13-01, 2014-Ohio-

4140, ¶ 50, citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, ¶ 29. A

trial court “has no obligation to state reasons to support its findings” and is not

“required to give a talismanic incantation of the words of the statute, provided that

the necessary findings can be found in the record and are incorporated into the

sentencing entry.” Bonnell at ¶ 37.

{¶38} At the sentencing hearing, the trial court made the following

statements regarding Glenn’s sentences:

I do also find that consecutive sentences are necessary in each of these

counts, and we’ll run each of them consecutive to each other because

it’s necessary to protect the public from future crime, and that

consecutive sentences are not disproportionate to the seriousness of

the offender’s conduct and the danger the offender posed to the public

with this conduct.

(Sept. 16, 2019 Tr. at 16-17).

{¶39} Based on our review of the record, we cannot conclude that the trial

court complied with its obligation to make all of the required R.C. 2929.14(C)(4)

findings at the sentencing hearing. In finding that the consecutive sentences were

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necessary to protect the public from future crime and that consecutive sentences are

not disproportionate to the seriousness of the offender’s conduct, the trial court

made findings under R.C. 2929.14(C). However, the trial court did not make any

findings at the sentencing hearing relating to one of the factors in R.C.

2929.14(C)(4)(a), (b), or (c).

{¶40} In its sentencing entry, the trial court stated:

In finding that the sentences shall be served consecutively, the Court

finds that consecutive sentences are necessary to punish the Defendant

or to protect the public from future crime, and that the sentences are

not disproportionate to the seriousness of the Defendant’s conduct and

the danger posed by the Defendant. The Court further finds that the

harm caused by two or more of the multiple offenses so committed

was so great or unusual that no single prison term for either of the

offenses committed as part of the course of conduct adequately

reflects the seriousness of the Defendant’s conduct.

(Doc. No. 113). Thus, the trial court made the appropriate R.C. 2929.14(C)(4)

findings in its sentencing entry. However, because the trial court must make all

required findings both at the sentencing hearing and in its judgment entry of

sentence, the trial court’s addition of a finding under R.C. 2929.14(C)(4)(b) in the

judgment entry does not make a difference. State v. Brown, 7th Dist. Jefferson No.

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15 JE 0014, 2016-Ohio-5701, ¶ 19 (“[T]he court did put the necessary findings in

the judgment entry of sentence. But the court must make the findings at the

sentencing hearing, not simply in the judgment entry.”)

{¶41} Accordingly, because the trial court did not make all of the required

R.C. 2929.14(C)(4) findings at Glenn’s sentencing hearing, “‘the imposition of

consecutive sentences in this case is contrary to law.’” State v. Payne, 3d Dist.

Henry No. 7-19-02, 2019-Ohio-2852, ¶ 6, quoting Bonnell at ¶ 37. As a result, we

reverse the judgment of the trial court, vacate Glenn’s sentence, and remand the

matter to the trial court for resentencing. Id.; Brown at ¶ 21.

{¶42} Glenn’s second assignment of error is sustained.

{¶43} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued with respect to her first and third assignments of

error, we affirm the judgment of the trial court with respect to those matters.

However, having found error prejudicial to the appellant herein in the particulars

assigned and argued with respect to her second assignment of error, we reverse the

judgment of the trial court with respect to that matter and remand to the trial court

for resentencing consistent with this opinion.

Judgment Affirmed in Part, Reversed in Part and Cause Remanded. ZIMMERMAN and SHAW, J.J., concur.

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