State v. Jordan

2017 Ohio 5827

Opinion

[Cite as State v. Jordan, 2017-Ohio-5827.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CHAMPAIGN COUNTY

STATE OF OHIO : : Plaintiff-Appellee : C.A. CASE NO. 2016-CA-17 : v. : T.C. NO. 16-CR-101 : RAYMOND T. JORDAN : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the ___14th___ day of _____July_____, 2017.

JANE A NAPIER, Atty. Reg. No. 0061426, Assistant Prosecuting Attorney, 200 N. Main Street, Urbana, Ohio 43078 Attorney for Plaintiff-Appellee

RICHARD L. KAPLAN, Atty. Reg. No. 0029406, P. O. Box 751192, Dayton, Ohio 45475 Attorney for Defendant-Appellant

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FROELICH, J.

{¶ 1} Raymond T. Jordan pled guilty in the Champaign County Court of Common

Pleas to four counts of gross sexual imposition, in violation of R.C. 2907.05(A)(4); two

counts concerned Jordan’s granddaughter, H.J., who was 11 years old at the time of the

offenses, and two concerned H.J.’s friend, H.T., who was 12 years old at the time of the -2-

offenses. Because the girls were under 13 years old, each offense was a felony of the

third degree with a possible maximum penalty of 60 months in prison. In exchange for

the plea, the State dismissed two counts of rape.

{¶ 2} After a presentence investigation, the trial court sentenced Jordan to 48

months in prison for each count of gross sexual imposition, to be served consecutively

for an aggregate sentence of 192 months (16 years) in prison. Jordan was required to

pay fines totaling $500, as well as attorney fees and costs. Jordan was designated a

Tier II sex offender.

{¶ 3} Jordan appeals from his conviction, claiming that the trial court erred in failing

to merge allied offenses of similar import and to impose community control. For the

following reasons, the trial court’s judgment will be affirmed.

I. Allied Offenses of Similar Import

{¶ 4} In his first assignment of error, Jordan claims that the trial court erred in failing

to merge the two charges concerning H.T. and the two charges concerning H.J. He

asserts that he should have been sentenced on only one charge regarding H.J. and one

charge regarding H.T and that, at most, he should have received 96 months in prison (48

months for each victim).

{¶ 5} Ohio’s allied offense statute, R.C. 2941.25, provides that:

(A) Where the same conduct by defendant can be construed to constitute

two or more allied offenses of similar import, the indictment or information

may contain counts for all such offenses, but the defendant may be

convicted of only one.

(B) Where the defendant’s conduct constitutes two or more offenses of -3-

dissimilar import, or where his conduct results in two or more offenses of

the same or similar kind committed separately or with a separate animus as

to each, the indictment or information may contain counts for all such

offenses, and the defendant may be convicted of all of them.

{¶ 6} “ ‘As a practical matter, when determining whether offenses are allied

offenses of similar import within the meaning of R.C. 2941.25, courts must ask three

questions when defendant’s conduct supports multiple offenses: (1) Were the offenses

dissimilar in import or significance? (2) Were they committed separately? and (3) Were

they committed with separate animus or motivation? An affirmative answer to any of the

above will permit separate convictions. The conduct, the animus, and the import must

all be considered.’ ” State v. Earley, 145 Ohio St.3d 281, 2015-Ohio-4615, 49 N.E.3d

266, ¶ 12, quoting State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶

31. The Supreme Court has further explained:

At its heart, the allied-offense analysis is dependent upon the facts of a case

because R.C. 2941.25 focuses on the defendant’s conduct. The evidence

at trial or during a plea or sentencing hearing will reveal whether the

offenses have similar import. When a defendant’s conduct victimizes more

than one person, the harm for each person is separate and distinct, and

therefore, the defendant can be convicted of multiple counts. Also, a

defendant’s conduct that constitutes two or more offenses against a single

victim can support multiple convictions if the harm that results from each

offense is separate and identifiable from the harm of the other offense. We

therefore hold that two or more offenses of dissimilar import exist within the -4-

meaning of R.C. 2941.25(B) when the defendant’s conduct constitutes

offenses involving separate victims or if the harm that results from each

offense is separate and identifiable.

Ruff at ¶ 26.

{¶ 7} According to the record, the offending sexual conduct occurred in the

summer of 2014 while H.T. and H.J. were having a sleepover at Jordan’s house. The

two girls went into Jordan’s bedroom to watch movies. Jordan was in the bedroom, too,

drinking alcohol. While the girls were in the bedroom, Jordan raised up H.T.’s and H.J.’s

shirts and touched their bare breasts. Jordan also touched their vaginas with his hand;

H.T. reported that Jordan’s hand went under her underwear to touch her vagina. (The

girls also alleged that Jordan had H.T. and H.J. put their mouths on his penis; this conduct

was addressed in Counts 1 and 2, which were dismissed as part of the plea.)

{¶ 8} Counts 3 and 4 of the indictment each allege that Jordan touched the girl’s

breast with his hand. Counts 5 and 6 each allege that Jordan touched the girl’s vagina

with his hand. Counts 3 and 5 of the indictment concern Jordan’s conduct toward H.T.,

and Counts 4 and 6 concern Jordan’s conduct toward H.J.

{¶ 9} Jordan claims that the trial court should have merged Count 3 (breast

touching) with Count 5 (vaginal touching), both of which concern H.T. He similarly claims

that the trial court should have merged Count 4 (breast touching) with Count 6 (vaginal

touching), both of which concern H.J. Jordan argues that the all of the offenses occurred

during the overnight visit at his house, that they were committed “at the same time on

each girl,” and that Jordan had the same animus (“sexual gratification during each

touching”) for each offense. -5-

{¶ 10} The touching of H.T.’s and H.J.’s breasts and vaginal areas were part of

one assaultive event. Nevertheless, the trial court found at sentencing the breast

touching and the vaginal touching were “separate acts even though they were committed

near in time.” The trial court noted that “the touching of the breast and touching of the

genitalia is equally serious.”

{¶ 11} We agree with the trial court that Jordan’s touching of H.T.’s breast and

vaginal area were separate acts, each with a distinct significance or import, and the same

is true of Jordan’s touching of H.J.’s breast and vagina. Accord, e.g., State v. J.M., 10th

Dist. Franklin No. 14AP-621, 2015-Ohio-5574 (rape counts relating to different parts of

the body do not merge); State v. Chamberlain, 12th Dist. Brown No. CA2013-04-004,

2014-Ohio-4619, ¶ 71 (“It is well-established that distinct, different kinds of sexual activity

constitute separate offenses for sentencing purposes.”); State v. Daniels, 9th Dist.

Summit No. 26406, 2013-Ohio-358 (defendant’s digital penetration of the victim's

vagina, fellatio, and vaginal intercourse with the victim were separate acts of rape for

which defendant could be separately punished); State v. Ferrell, 8th Dist. Cuyahoga

No. 100659, 2014-Ohio-4377, ¶ 33. The trial court did not err in failing to merge the

offenses relating to the same girl as allied offenses of similar import.

{¶ 12} We note that Jordan does not claim that the counts concerning H.T. should

merge with the counts concerning H.J. Because Counts 3 and 5 (H.T.) involved a

different victim than Counts 4 and 6 (H.J.), the trial court properly did not merge Count 3

with Court 4 or Count 5 with Count 6.

{¶ 13} Jordan’s first assignment of error is overruled.

II. Failure to Impose Community Control -6-

{¶ 14} In his second assignment of error, Jordan claims that the trial court erred in

imposing a prison term, rather than community control. There is no assignment of error

concerning the consecutive nature of the sentences, including the proportionality of the

consecutive sentence to the offenses.

{¶ 15} Jordan was indicted for and pled guilty to gross sexual imposition, in

violation of R.C. 2907.05(A)(4), a third-degree felony. That provision states: “No person

shall have sexual contact with another, not the spouse of the offender; cause another, not

the spouse of the offender, to have sexual contact with the offender; or cause two or more

other persons to have sexual contact when any of the following applies: * * * (4) The other

person, or one of the other persons, is less than thirteen years of age, whether or not the

offender knows the age of that person.” R.C. 2907.05(A)(4). Pursuant to R.C.

2907.05(C)(2) and R.C. 2929.13(D)(1), a violation of R.C. 2907.05(A)(4) carries a

presumption of prison. If the presumption of prison is overcome, the trial court may

impose community control. See State v. Bevly, 142 Ohio St.3d 41, 2015-Ohio-475, 27

N.E.3d 516, ¶ 25.1

{¶ 16} In reviewing felony sentences, appellate courts must apply the standard of

review set forth in R.C. 2953.08(G)(2), rather than an abuse of discretion standard. See

State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 9. Under

1 It is not clear how the presumption of prison can be overcome for violations of R.C. 2907.05(A)(4). In general, R.C. 2929.13(D)(2) provides that the trial court may impose community control instead of prison if it finds that community control would adequately punish the offender and protect the public from future crime and that community control would not demean the seriousness of the offense. However, R.C. 2929.13(D)(1) expressly states that the provisions in R.C. 2929.13(D)(2) do not apply to the presumption of prison for a violation of R.C. 2907.05(A)(4). R.C. 2929.13 does not otherwise indicate how the presumption in favor of a prison term can be rebutted for violations of R.C. 2907.05(A)(4). -7-

R.C. 2953.08(G)(2), an appellate court may increase, reduce, or modify a sentence, or it

may vacate the sentence and remand for resentencing, only if it “clearly and convincingly”

finds either (1) that the record does not support certain specified findings or (2) that the

sentence imposed is contrary to law.

{¶ 17} “The trial court has full discretion to impose any sentence within the

authorized statutory range, and the court is not required to make any findings or give its

reasons for imposing maximum or more than minimum sentences.” State v. King, 2013-

Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). However, in exercising its discretion, a trial

court must consider the statutory criteria that apply to every felony offense, including

those set out in R.C. 2929.11 and R.C. 2929.12. State v. Leopard, 194 Ohio App.3d

500, 2011-Ohio-3864, 957 N.E.2d 55, ¶ 11 (2d Dist.), citing State v. Mathis, 109 Ohio

St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38.

{¶ 18} R.C. 2929.11 requires trial courts to be guided by the overriding purposes

of felony sentencing. Those purposes are “to protect the public from future crime by the

offender and others and to punish the offender using the minimum sanctions that the court

determines accomplish those purposes without imposing an unnecessary burden on state

or local government resources.” R.C. 2929.11(A). The court must “consider the need

for incapacitating the offender, deterring the offender and others from future crime,

rehabilitating the offender, and making restitution to the victim of the offense, the public,

or both.” Id. R.C. 2929.11(B) further provides that “[a] sentence imposed for a felony

shall be reasonably calculated to achieve the two overriding purposes of felony

sentencing * * *, commensurate with and not demeaning to the seriousness of the

offender’s conduct and its impact upon the victim, and consistent with sentences imposed -8-

for similar crimes committed by similar offenders.”

{¶ 19} R.C. 2929.12(B) sets forth nine factors indicating that an offender’s conduct

is more serious than conduct normally constituting the offense. R.C. 2929.12(C) sets

forth four factors indicating that an offender’s conduct is less serious than conduct

normally constituting the offense.

{¶ 20} R.C. 2929.12(D) and (E) each lists five factors that trial courts are to

consider regarding the offender’s likelihood of committing future crimes. The factors

indicating that recidivism is more likely include that the offender has a history of criminal

convictions and that the offender “shows no genuine remorse for the offense.” R.C.

2929.12(D)(2), (5). The factors weighing against a likelihood of recidivism include that

the offender “had led a law-abiding life for a significant number of years,” the offense was

committed “under circumstances not likely to recur,” and the offense “shows genuine

remorse for the offense.” R.C. 2929.19(E)(3), (4), (5).

{¶ 21} Finally, R.C. 2929.12(F) requires the sentencing court to consider the

offender’s military service record. Jordan did not serve in the military.

{¶ 22} At the sentencing hearing, the trial court heard from the prosecutor, defense

counsel, and Jordan, and a statement from H.J. The prosecutor described the

circumstances surrounding the offenses, including the conduct underlying the dismissed

rape charges, and argued that Jordan continued to minimize his conduct by insinuating

that the conduct was accidental. The prosecutor highlighted several factors that

supported a prison sentence, including that Jordan’s relationship with H.J. facilitated the

offense and that Jordan was in a position of trust and authority when the offenses

occurred. The prosecutor argued that Jordan has never shown genuine remorse, and -9-

that recidivism was likely because Jordan “has yet to fully accept responsibility and admit

the extent of his conduct.” The State further argued that the ages of children should be

taken into account during sentencing.

{¶ 23} The prosecutor further addressed the effect of the offenses on the two girls.

With respect to H.J., the prosecutor stated that, since the offenses, H.J. had “expressed

emotional difficulties, anger, stress, the sadness of losing her friend, and the sadness of

losing family relationships. She now has a fear of people. She has lost her ability to

trust to a certain extent. She fears men. She has ongoing nightmares that she deals

with.” As to H.T., the prosecutor described her as “emotionally fragile, fearful, and

anxious” and noted that H.T. was cutting herself as a result of Jordan’s conduct.

{¶ 24} The prosecutor argued that consecutive sentences were appropriate, and it

asked for a sentence between 16 and 20 years in prison.

{¶ 25} H.J.’s mother read a written statement prepared by H.J. In that letter, H.J.

expressed that her grandfather had taken advantage of her and that the experience has

caused her be angry, scared, and very sad. She described the fears that she now has,

such as worry that people will treat her differently, fear of men, and difficulty meeting new

people. She further described how the offenses have affected her relationship with her

family and expressed sorrow that she lost her friend as a result of the offenses.

{¶ 26} Defense counsel described Jordan as “extremely remorseful.” Counsel

emphasized that Jordan had been a law-abiding citizen since 1976 (he had a conviction

for robbery, for which he served a short period of incarceration), has been married for

more than 40 years, and had steady employment before his incarceration for the offenses.

Counsel noted that Jordan’s physical and mental health had declined in jail and that “he’s -10-

developed these issues because of the pain he feels for what he did to these two girls in

this matter.” Counsel expressed that Jordan was remorseful for the effects on his family.

Counsel noted that Jordan was drinking at the time of the offenses, which contributed to

his behavior. Counsel asked the court to consider community control and, if prison were

imposed, concurrent sentences.

{¶ 27} Jordan spoke on his own behalf, telling the trial court that he was “very,

very, very remorseful.” Jordan apologized to “all in this case,” asked for forgiveness, and

described how his health had suffered while in jail for 105 days since the charges were

filed.

{¶ 28} The trial court questioned Jordan about his remorsefulness, asking about

Jordan’s failure to fully accept responsibility for his actions when talking about the

offenses with others, including his wife and the presentence investigator. The PSI

indicates that Jordan originally told the police that “he and H.T. and H.J. were wrestling

and playing around” and that “he may have touched their chests, but not as they explained

it.” In his statements to the police, Jordan had originally denied touching the girls’

genitals. Jordan wrote for the presentence investigation:

I was drinking at the time had drank quite a lot an[d] I feel awful very, very

very sorry! I am so ashamed of myself an[d] I am so sorry for anyone I

hurt. I ask they would forgive me as I ask God everyday to forgive me,

Again I am so sorry. Just laughing an[d] playing, I thought. I am so so so

sorry. I pray that I hurt know [sic] one.

Upon inquiry from the trial court, Jordan agreed that his behavior and statements to his

wife and the presentence investigator could suggest that he was not genuinely -11-

remorseful.

{¶ 29} According to the presentence investigation, Jordan was 59 years old, had

an 11th grade education, had been employed as a factory worker since 2004, had been

married for more than 40 years, and had lived for last 25 years in the same home, which

he and his wife own. The couple have two adult children. Jordan had one conviction

for OVI, a misdemeanor, in 1996, and no juvenile record. The presentence investigation

did not reveal the 1976 robbery; the trial court added that information to the PSI based on

Jordan’s representations at the sentencing hearing. Jordan’s ORAC (risk assessment)

score was “low.” Jordan reported fair physical health and a history of anxiety and

depression. He indicated that he drank twice per week since age 22; his only reported

drug use was marijuana with his last usage 40 years ago.

{¶ 30} The presentence investigator recommended a “significant prison term,” but

“less than the maximum sentence allowed by law,” given Jordan’s lack of a prior criminal

history or sex offense history. The investigator wrote: “Offender appears to be seriously

minimizing his offense. He does not appear to completely grasp the concept of the harm

he has caused his granddaughter and her friend. * * * This investigator finds Offender’s

minimalized version highly incredible, and is seriously concerned that he will offend again

if returned to the community with the lesson that his rationale makes this behavior

acceptable. It does not.” The investigator further believed that offenses were not the

result of heavy drinking and, instead, “the alcohol use was incidental to the offense itself.”

{¶ 31} In sentencing Jordan, the trial court made three “more serious” findings: (1)

“The physical or mental injury suffered by the victims of the offense due to the conduct of

Defendant was exacerbated because of the * * * age of the victims,” (2) “The victims of -12-

the offense suffered serious physical, psychological, or economic harm as a result of the

offense,” and (3) “The offender’s relationship with one of the victims facilitated the

offense.” R.C. 2929.12(B)(1), (2), (6). The court further found that (1) the “child-victims

were at the Defendant’s home for a sleepover, and the Defendant was in loco parentis to

the child-victims,” and (2) “[m]ultiple child-victims were sexually assaulted in multiple ways

by a family childcare giver.” The court found that no “less serious” factors applied.

{¶ 32} With respect to recidivism, the court found that Jordan had a history of

criminal convictions and showed no genuine remorse for the offense. R.C.

2929.12(D)(2), (5). The court additionally found that recidivism was likely because

Jordan failed in the PSI to fully accept responsibility for his conduct and that his failure “to

acknowledge his full responsibility is a significant obstacle in his ability to benefit from

treatment in order to prevent these crimes from happening again in the future.” As to the

factors regarding whether Jordan was less likely to commit future crimes, the court found

that Jordan had not been adjudicated a delinquent child, had led a law-abiding life for a

significant number of years, and that the offense was committed under circumstances not

likely to recur “as his grandchildren will never be left alone again with the Defendant.”

The court concluded that the factors establishing that recidivism was more likely

outweighed the factors establishing that recidivism was less likely.

{¶ 33} The trial court imposed a prison term, finding that community control would

not adequately punish Jordan and protect the public from future crime, because the

factors indicating a lesser likelihood of recidivism did not outweigh the factors indicating

a greater likelihood of recidivism. The court further found that community control would

demean the seriousness of the offenses, finding that the “more serious” factors -13-

outweighed the “less serious” factors.

{¶ 34} On appeal, Jordan argues that the trial court erred in its evaluation of the

seriousness factors of R.C. 2929.12 by (1) giving undue weight to the fact that Jordan

was acting in loco parentis at the time of the offenses, (2) improperly relying on unsworn

statements regarding H.T. and H.J. to find psychological harm, and (3) finding that the

mental injury was exacerbated by the children’s ages. Jordan states that “the only

statutory factor which the trial court could consider regarding seriousness of the offense,

as there was [a] factual basis for the finding, is that there was the relationship facilitating

the offense(s).” Jordan also claims that the trial court erred in failing to consider Jordan’s

use of alcohol at the time of the offenses as a mitigating factor. In addition, Jordan

argues that the trial court’s findings regarding his risk of recidivism were inconsistent with

each other, that the offenses occurred under circumstances that were unlikely to recur,

and that the court erred in finding that Jordan was not remorseful. Jordan argues that

“community control would adequately punish Mr. Jordan without demeaning the purposes

of sentencing.”

{¶ 35} At the outset, the trial court did not err in consider the unsworn statements

by the prosecutor, defense counsel, Jordan, and H.J., as well as the information

contained in the presentence investigation report. “The evidence the court may consider

is not confined to the evidence that strictly relates to the conviction offense because the

court is no longer concerned * * * with the narrow issue of guilt.” (Citation omitted.)

State v. Bowser, 186 Ohio App.3d 162, 2010-Ohio-951, 926 N.E.2d 714, ¶ 14 (2d Dist.).

A trial court at sentencing may take into consideration hearsay evidence, facts related to

charges that were dismissed pursuant to a plea bargain, and allegations contained in a -14-

PSI report. See, e.g., State v. Bautista, 2d Dist. Clark No. 2016-Ohio-5436, ¶ 12 (“the

trial court was entitled to consider the facts associated with the other 14 felony counts

that were dismissed as part of the plea agreement”); State v. Clemons, 2d Dist.

Montgomery No. 26038, 2014-Ohio-4248, ¶ 8 (at sentencing, a trial court may consider

hearsay evidence, prior arrests, facts supporting a charge that resulted in an acquittal,

facts related to a charge that was dismissed under a plea agreement, and allegations of

uncharged yet undisputed conduct).

{¶ 36} Accordingly, the trial court was entitled to consider the information in the

presentence investigation report, the prosecutor’s statements regarding the emotional

harm suffered by H.T. and H.J., H.J.’s statement to the court, and the two rape charges

that had been dismissed as part of the plea agreement. (The trial court indicated at

sentencing that it would not consider the dismissed rape charges in weighing the

seriousness factors.)

{¶ 37} Upon review of the record, we cannot find by clear and convincing evidence

that the trial court erred in sentencing Jordan to prison rather than community control.

The prosecutor’s statement to the court described the psychological harm that both H.T.

and H.J. had suffered, and H.J. provided a statement that reiterated that she suffered and

continues to suffer psychological harm due to the offenses. There is no dispute that

Jordan’s relationship with H.J. facilitated the offenses.

{¶ 38} We question the trial court’s finding that the offense was “more serious” due

to the age of the victims. By definition, a violation of R.C. 2907.05(A)(4) involves a child

younger than 13 years old; H.T. and H.J. were 12 and 11 years old, respectively. As a

general proposition, “it is logically impossible for an element of an offense to also make -15-

that conduct constituting the offense more serious than other conduct normally

constituting the offense.” State v. Thomas, 2d Dist. Montgomery No. 26123, 2014-Ohio-

5262, ¶ 17. The record does not support a conclusion that the particular ages of H.T.

and H.J. render the offenses before us more serious than other violations of R.C.

2907.05(A)(4).

{¶ 39} Jordan further claims that the trial court should have considered his

intoxication at the time of the offense as a mitigating factor. While Jordan perhaps might

not have engaged in the same behavior had he not been intoxicated, the trial court

reasonably concluded that his intoxication did not make his behavior less serious.

{¶ 40} The exchange between the trial court and Jordan at sentencing revealed

that Jordan had not accepted responsibility for his actions during his conversations with

his wife and the presentence investigator. And while Jordan expressed regret and

sought forgiveness at sentencing, his statements could have been interpreted by the trial

court as reflecting that he was more concerned with the consequences he faced for his

actions than with the harm done to his granddaughter and her friend.

{¶ 41} Jordan was 59 years old when he was sentenced, and he had not been

convicted of a felony for the past 40 years. Nevertheless, in evaluating Jordan’s

likelihood of recidivism, the trial court gave substantial weight to Jordan’s apparent failure

to take full responsibility for his actions, and the record supports the trial court’s conclusion

that Jordan minimized the wrongfulness of his conduct. (As stated above, the trial court

noted that it could consider the dismissed rape charges, but it indicated that it would not

use that information to make the sentence more serious.)

{¶ 42} In short, considering the available information before the trial court, we -16-

cannot find that the imposition of prison terms, as opposed to community control, was

clearly and convincingly unsupported by the record. See, e.g., State v. Brooks, 11th Dist.

Trumbull No. 2015-T-0111, 2016-Ohio-4743 (affirming prison sentence for gross sexual

imposition, despite low ORAC score and minimal criminal history, where defendant lacked

remorse, the victim was seven years old, the defendant was the victim’s step-

grandparent, and victim suffered psychological harm).

{¶ 43} Jordan’s reaction to his sentence at sentencing reflects that he believes that

his aggregate sentence is unduly harsh. In imposing consecutive sentences, the trial

court found, pursuant to R.C. 2929.14(C)(4), that (1) consecutive service was necessary

to protect the public from future crime or to punish Jordan, (2) consecutive sentences

were not disproportionate to the seriousness of Jordan’s conduct and to the danger he

poses to the public, and (3) 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 Jordan’s conduct.

{¶ 44} Jordan has not challenged on appeal the trial court’s findings in support of

its decision to impose consecutive sentences, including whether consecutive sentences

were disproportionate to his conduct and to the danger he poses to the public. Cf. State

v. Cooper, 5th Dist. Ashland No. 14-COA-039, 2016-Ohio-5064 (Hoffman, J., dissenting).

Instead, he has limited his argument to whether the trial court erred in imposing a prison

sentence rather than community control. Accordingly, we state no opinion on the trial

court’s decision to impose consecutive sentences. -17-

{¶ 45} The second assignment of error is overruled.

III. Conclusion

{¶ 46} The trial court’s judgment will be affirmed.

DONOVAN, J. and WELBAUM, J., concur.

Copies mailed to:

Jane A. Napier Richard L. Kaplan Hon. Nick A. Selvaggio