State v. Knipp

2014 Ohio 3878

• Court: Ohio Court of Appeals
• Decided: September 8, 2014
• Docket: CA2013-07-114
• Status: Published

Opinion

[Cite as State v. Knipp, 2014-Ohio-3878.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. CA2013-07-114

: OPINION - vs - 9/8/2014 :

SAMUEL M. KNIPP III, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2013-04-0636

Michael T. Gmoser, Butler County Prosecuting Attorney, Michael A. Oster, Jr., Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Clyde Bennett II, 119 East Court Street, Cincinnati, Ohio 45202, for defendant-appellant

PIPER, J.

{¶ 1} Defendant-appellant, Samuel Knipp III, appeals his ten-year sentence in the

Butler County Court of Common Pleas for rape and two counts of gross sexual imposition.

{¶ 2} Knipp was arrested after a child reported to a school resource officer that Knipp

had fondled her buttocks and vagina while the two sat and watched a movie. After an

investigation began, two other child victims who resided in the same home with Knipp came

forward and told officers that Knipp had sexually abused them as well, including forced Butler CA2013-07-114

cunnilingus and digital penetration. Knipp was in a trusted relationship with each of the

victims, and the abuse started when the children were much younger and continued over the

years.

{¶ 3} Knipp was interviewed by officers and admitted to the touching, though he

blamed the children for being too developed, mature acting, and stated that all three victims

were curious about him in a sexual manner. Knipp also told investigators that family

members and people who knew him were aware that he had "issues" and "demons," and that

the children should have known "you don't get under the blankets with me." Knipp was

arrested and charged by a bill of information with a single count of rape and two counts of

gross sexual imposition. The three counts were specific to acts performed upon three

separate victims.

{¶ 4} Knipp pled guilty to the three counts, and the trial court sentenced him to four

and one-half years on one count of gross sexual imposition, ten years on the rape charge,

and 17 months on the remaining gross sexual imposition charge. The trial court ordered the

sentences to run concurrently for an aggregate sentence of ten years. Knipp appeals the

trial court's decision, raising the following assignment of error:

{¶ 5} THE TRIAL COURT ERRED, CONTRARY TO LAW, WHEN IT IMPOSED A

MAXIMUM PRISON TERM FOR RAPE, A FIRST DEGREE FELONY.1

{¶ 6} Knipp argues in his assignment of error that the trial court erred in sentencing

him to ten years in prison on the rape charge.

{¶ 7} "The standard of review set forth in R.C. 2953.08(G)(2) shall govern all felony

sentences." State v. Crawford, 12th Dist. Clermont No. CA2012-12-088, 2013-Ohio-3315, ¶

6, quoting State v. A.H., 8th Dist. Cuyahoga No. 98622, 2013-Ohio-2525, ¶ 7. Pursuant to

1. Although Knipp argues that the trial court's ten-year sentence was a maximum one, the maximum sentence for a first-degree felony is 11 years. R.C. 2929.14(A)(1). -2- Butler CA2013-07-114

R.C. 2953.08(G)(2), when hearing an appeal of a trial court's felony sentencing decision, "the

appellate court may increase, reduce, or otherwise modify a sentence that is appealed under

this section or may vacate the sentence and remand the matter to the sentencing court for

resentencing." However, as explicitly stated in R.C. 2953.08(G)(2), "[t]he appellate court's

standard for review is not whether the sentencing court abused its discretion."

{¶ 8} Instead, an appellate court may take any action authorized under R.C.

2953.08(G)(2) only if the court "clearly and convincingly finds" that either: (1) "the record

does not support the sentencing court's findings under division (B) or (D) of section 2929.13,

division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised

Code, whichever, if any, is relevant," or (2) "[t]hat the sentence is otherwise contrary to law."

A sentence is not clearly and convincingly contrary to law where the trial court considers the

purposes and principles of R.C. 2929.11, as well as the factors listed in R.C. 2929.12, and

sentences appellant within the permissible statutory range. Crawford, 2013-Ohio-3315 at ¶

9; State v. Elliott, 12th Dist. Clermont No. CA2009-03-020, 2009-Ohio-5926, ¶ 10.

{¶ 9} After reviewing the record, the trial court's sentence is not clearly and

convincingly contrary to law. The trial court very clearly stated in its sentencing entry that it

had considered the purposes and principles of sentencing according to R.C. 2929.11 and

had balanced the seriousness and recidivism factors within R.C. 2929.12. The trial court also

discussed its review of the purposes and principles of sentencing and the recidivism factors

within R.C. 2929.11 and R.C. 2929.12 during the sentencing hearing before sentencing

Knipp.

{¶ 10} Knipp argues that his sentence was erroneous because his conduct was not

more serious than conduct normally constituting rape, he had a limited criminal history, and

he was unlikely to commit crime in the future. We disagree. The trial court reiterated the

facts that were contained in Knipp's PSI, including the seriousness of his crimes, and that he -3- Butler CA2013-07-114

essentially placed the blame on the children for getting under the covers with him. Knipp also

admitted to committing multiple acts of sexual abuse, but was nonchalant in explaining his

behavior. For example, Knipp described touching one victim's vagina as "nothing major." In

another example, Knipp admitted to investigators that he fondled one victim because she had

her leg on his leg, and he took the victim's action to mean "open game." The trial court also

recounted the need to protect the public from Knipp and his continual sexual abuse of young

children.

{¶ 11} The trial court sentenced Knipp to ten years on the rape charge, which is a first-

degree felony. According to R.C. 2929.14(A)(1), "for a felony of the first degree, the prison

term shall be three, four, five, six, seven, eight, nine, ten, or eleven years." Knipp's ten-year

sentence was therefore within the statutory range. Having considered the purposes and

principles of sentencing, and sentencing Knipp within the statutory range for his offense, the

trial court's sentence was not clearly and convincingly contrary to law.

{¶ 12} Having found that Knipp's ten-year aggregate sentence was properly ordered,

Knipp's single assignment of error is overruled.

{¶ 13} Judgment affirmed.

RINGLAND, P.J., and S. POWELL, J., concur.

-4-