State v. Kehl

2024 Ohio 1679

• Court: Ohio Court of Appeals
• Decided: May 1, 2024
• Docket: 2023 CA 0030
• Status: Published

Opinion

[Cite as State v. Kehl, 2024-Ohio-1679.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee : Hon. William B. Hoffman, J. : Hon. John W. Wise, J. -vs- : : Case No. 2023 CA 0030 : JESSE KEHL : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Case No, 2022 CR 0713 N

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: May 1, 2024

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

JODIE SCHUMACHER DARIN AVERY RICHLAND COUNTY PROSECUTOR 105 Sturges Ave. Mansfield, OH 44903 MARTIN I. NEWMAN 38 South Park Street Mansfield, OH 44902 [Cite as State v. Kehl, 2024-Ohio-1679.]

Delaney, P.J.

{¶1} Defendant-Appellant Jesse Kehl appeals the May 10, 2023 sentencing

entry of the Richland County Court of Common Pleas.

FACTS AND PROCEDURAL HISTORY

{¶2} On October 6, 2022, the Richland County Grand Jury indicted Defendant-

Appellant Jesse Kehl on the following charges: (1) illegal use of minor or impaired person

in nudity-oriented material or performance, a second-degree felony in violation of R.C.

2907.323(A)(2) and (B); (2) abduction, a third-degree felony in violation of R.C.

2905.02(B) and (C); (3) abduction, a third-degree felony in violation of R.C. 2905.02(B)

and (C); (4) gross sexual imposition, a fourth-degree felony in violation of R.C.

2907.05(A)(1) and (C)(1); and (5) gross sexual imposition, a fourth-degree felony in

violation of R.C. 2907.05(A)(1) and (C)(1). Appellant entered a not guilty plea to the

charges.

{¶3} Appellant filed a written plea of not guilty by reason of insanity and requested

the trial court for a competency evaluation. The trial court held a hearing on the motion

and on February 15, 2023 via written judgment entry, found Appellant competent to

stand trial.

{¶4} After the competency hearing, Appellant entered a change of plea. On

February 13, 2023, Appellant changed his plea to guilty for Counts One, Four, and Five

and the State dismissed Counts Two and Three. The trial court conducted the plea

colloquy and accepted Appellant’s plea of guilty to Counts One, Four, and Five. At the

plea hearing, the State outlined the allegations against Appellant that were based on a

course of conduct that occurred over a year’s time. In October 2021, it was discovered [Cite as State v. Kehl, 2024-Ohio-1679.]

that Appellant had a picture of his minor daughter in a state of partial nudity on his cell

phone. Appellant claimed that he had taken a picture of a picture from the child’s phone

and intended to confront her with it; however, Appellant never discussed the photo with

the child. During the investigation of the picture, the child said when she had visitation

with Appellant, she would wake up to Appellant wrapping around her and grabbing her

breasts while masturbating. The child was thirteen years old when this occurred. The child

also alleged that Appellant held her against the wall when she tried to escape him, holding

her in place until he finished masturbating. The trial court ordered a pre-sentence

investigation report and scheduled for sentencing on March 13, 2023.

{¶5} After two continuances, sentencing was held on May 4, 2023. The trial court

noted at the start of the hearing that it had reviewed the pre-sentence investigation report,

the neuropsychological assessment, a psychological sentencing evaluation, and a victim

impact statement provided by the guardian of the victim. (T. 59).

{¶6} Appellant had been on electronic monitoring during the case and

maintained full-time employment. (T. 60). Counsel for Appellant reviewed his mental

health diagnoses, which included major depressive disorder, generalized anxiety

disorder, panic disorder, PTSD, dissociative identity disorder, and an alcohol disorder in

remission. (T. 60). Appellant was in counseling and treatment. (T. 61). He had no prior

criminal history, other than juvenile court issues that did not result in an adjudication of

delinquency. The pre-sentence investigation report scored him at 12 for SAQ, which is a

low supervision level. (T. 62). Counsel argued Appellant would be a candidate for

community control that would permit Appellant to continue his mental health and [Cite as State v. Kehl, 2024-Ohio-1679.]

substance abuse treatment. (T. 63). Appellant spoke and stated only that he hoped his

daughter was okay.

{¶7} The victim’s mother made a statement and she read a letter from the victim.

The victim’s grandmother also made statement. (T. 66-69).

{¶8} The trial court moved on to sentencing. It first designated Appellant a Tier I

sex offender. (T. 73). The trial court then reviewed its consideration of the seriousness

and recidivism factors. It first noted that the psychological and physical injury Appellant

caused to his daughter was made worse because he was her father, and she was only

thirteen years old. (T. 74). The trial court remarked that Appellant did not show remorse

or apologize for his actions; he stated that he hoped his daughter was okay. (T. 75).

Appellant had said that he intended to speak to his daughter about the picture on her

phone, but the trial court stated that Appellant never did speak with his daughter about

the picture, nor did he delete the picture of his daughter on his phone. (T. 75). The picture

was the basis of Count One, illegal use of minor or impaired person in nudity-oriented

material or performance, a second-degree felony. The trial court stated:

Now that’s the felony of the second degree. That’s the harsh one. And I’m

kind of perplexed by that, because, really, in the grand scheme of these

acts, that's not the worst thing you did. How our legislature ever came up

with that being an F-2 as opposed to what you did after the fact. On two

separate occasions, you laid naked in bed next to your daughter, fondling

her buttocks, putting your hands on her inner thighs and masturbating. How

is that not a worse offense? And yet our legislators sit there and make that

a felony of the 4th degree. [Cite as State v. Kehl, 2024-Ohio-1679.]

(T. 75-76).

{¶9} The trial court sentenced Appellant to six years in prison on Count One, an

eighteen-month prison term on Count Two to run consecutive to the prison term in Count

One, and an eighteen-month prison term on Count Five to run concurrently with the other

counts. (T. 79). The aggregate minimum sentence was seven and one-half years to a

maximum of ten and one-half years in prison. The trial court noted that consecutive

sentences were necessary to protect the public from future crime or to punish the

offender. They were not disproportionate to the seriousness of the offender’s conduct and

to the danger the offender poses to the public and because at least two of the multiple

offenses were committed as part of one or more course of conduct and the harm caused

by two or more multiple offenses is so great or unusual that no single prison term for any

of the offenses committed as part of any of the course of conduct adequately reflected

the seriousness of the offender’s conduct. (T. 79-80). The sentencing entry was filed on

May 10, 2023.

{¶10} It is from this sentencing entry that Appellant now appeals.

ASSIGNMENTS OF ERROR

{¶11} Appellant raises one Assignment of Error:

I. THE TRIAL COURT’S SENTENCE WAS CONTRARY TO LAW.

ANALYSIS

{¶12} In his sole Assignment of Error, Appellant contends the trial court’s

imposition of consecutive sentences was contrary to law. We disagree.

{¶13} Before a trial court imposes consecutive sentences, it must make specific

findings which are delineated in R.C. 2929.14(C)(4). Specifically, the trial court must find [Cite as State v. Kehl, 2024-Ohio-1679.]

that “the consecutive service is necessary to protect the public from future crime or to

punish the offender.” Id. It must also find that “consecutive sentences are not

disproportionate to the seriousness of the offender's conduct and to the danger the

offender poses to the public.” Id. Finally, the court must find at least one 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 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.

{¶14} R.C. 2953.08(G)(2) does not allow an appellate court to reverse or modify

a defendant's consecutive sentences using the principles and purposes of felony

sentencing as set forth in R.C. 2929.11(A) and (B) and the seriousness and recidivism

factors in R.C. 2929.12. State v. Gwynne, 158 Ohio St.3d 279, 2019-Ohio-4761, 141

N.E.3d 169, ¶13-18. (“Gwynne II”); State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729,

169 N.E.3d 649, ¶39; State v. Toles, 166 Ohio St.3d 397, 2021-Ohio-3531, 186 N.E.3d

784, ¶10. [Cite as State v. Kehl, 2024-Ohio-1679.]

{¶15} An appellate court can reverse or modify the trial court's order of

consecutive sentences if it clearly and convincingly finds that the record does not support

the findings. The Ohio Supreme Court has recently spoken on the standard by which an

appellate court should review a trial court's consecutive sentences findings. State v.

Grant, 5th Dist. Muskingum No. CT2023-0023, 2023-Ohio-4614, 2023 WL 8716601, ¶

23. In State v. Gwynne, 2023-Ohio-3851, ¶ 5, the Ohio Supreme Court reconsidered its

prior decision in State v. Gwynne, 2022-Ohio-4607, and held that “[t]he plain language of

R.C. 2953.08(G)(2) requires an appellate court to defer to a trial court's consecutive-

sentence findings, and the trial court's findings must be upheld unless those findings are

clearly and convincingly not supported by the record.” Grant at ¶ 23.

{¶16} Appellant raises two arguments that the trial court’s consecutive sentence

findings were not clearly and convincingly supported by the record. He first argues that

consecutive sentences are disproportionate to the seriousness of Appellant’s conduct.

Appellant points this Court to the trial court’s statement at sentencing regarding the

difference between the felony sentencing structure for a charge of illegal use of minor or

impaired person in nudity-oriented material or performance, which is a second-degree

felony, and a charge of gross sexual imposition, which is a fourth-degree felony. He

contends the trial court stated on the record that Appellant’s conduct as to the gross

sexual imposition was more serious than Appellant’s conduct related to the picture of his

semi-nude daughter found on his cell phone. A review of the trial court’s statement in

context shows it was questioning the Ohio General Assembly’s determination of the

felony sentencing structure while recognizing that the role of judiciary is not to legislate

but to enforce the legislature’s felony sentencing schema. On the second-degree felony, [Cite as State v. Kehl, 2024-Ohio-1679.]

the trial court sentenced Appellant within the statutory range. On the fourth-degree

felonies, the trial court sentenced Appellant within the statutory range. The trial court then

applied the required constructs of R.C. 2929.14(C)(4) and found that consecutive

sentences were not disproportionate to the seriousness of the offender's conduct, which

included taking and keeping a semi-nude photograph of his minor daughter on his cell

phone and engaging in sexual acts with her, and to the danger the offender poses to the

public.

{¶17} Appellant next argues the record does not support the trial court’s finding

under R.C. 2929.14(C)(4)(b). R.C. 2929.14(C)(4)(b) requires the trial court find before

imposing a consecutive sentence that “[a]t 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.” Appellant argues there was no

evidence that Appellant’s possession of the semi-nude photograph of his minor daughter

was committed as part of the course of conduct that involved Appellant’s two acts of gross

sexual imposition against his minor daughter. At the change of plea hearing, the trial court

heard the State’s recitation of the allegations against Appellant. Before sentencing, the

trial court stated it had reviewed the pre-sentence investigation report, the

neuropsychological assessment, a psychological sentencing evaluation, and a victim

impact statement provided by the guardian of the child. It heard the statements from the

child’s mother, child’s grandmother, and a letter from the child. The trial court had the

information detailing Appellant’s course of conduct in committing multiple offenses [Cite as State v. Kehl, 2024-Ohio-1679.]

towards his daughter and the harm caused as described by the child and her family. In

this case, we find there was clear and convincing evidence to support the trial court’s

finding that 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.

{¶18} The record in this case supports the trial court’s imposition of consecutive

sentences under R.C. 2929.14(C). Appellant’s sole Assignment of Error is overruled.

CONCLUSION

{¶19} The judgment of the Richland County Court of Common Pleas is affirmed.

By: Delaney, P.J.,

Hoffman, J. and

Wise, J., concur.