State v. Lewis

2021 Ohio 1692

Opinion

[Cite as State v. Lewis, 2021-Ohio-1692.]

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

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 9-20-49

v.

JENSEN LEWIS, OPINION

DEFENDANT-APPELLANT.

Appeal from Marion County Common Pleas Court Trial Court No. 20-CR-185

Judgment Affirmed

Date of Decision: May 17, 2021

APPEARANCES:

Todd A. Anderson for Appellant

Nathan R. Heiser for Appellee Case No. 9-20-49

SHAW, J.

{¶1} Defendant-appellant, Jensen Lewis (“Lewis”), appeals the November 6,

2020 judgment of the Marion County Court of Common Pleas journalizing her

conviction after pleading guilty to one count of fifth-degree felony possession of

criminal tools and sentencing her to a twelve-month prison term. On appeal, Lewis

assigns error to the trial court’s decision to impose a prison term under R.C.

2929.13(B)(1)(b).

Relevant Facts and Procedural History

{¶2} On June 3, 2020, the Marion County Grand Jury returned a one-count

indictment against Lewis alleging that she committed the offense of Count One,

pandering sexually oriented matter involving a minor, a felony of the second degree,

in violation of R.C. 2907.322(A)(1). Lewis entered a plea of not guilty upon

arraignment.

{¶3} The charge arose from allegations that Lewis created and published a

video of herself and B.L., a 15-year-old female, engaging in sexual conduct on a

website application (“app”) called “Periscope.”1 Lewis was alleged to have known

that B.L. was a minor at the time she created and published the video. Investigation

by law enforcement revealed that Lewis, B.L., and other females, some of whom

were minors, had made acquaintances with a man called “Junior” who sent them

1 Periscope is an app that permits the user to share and broadcast live video streams direct from a smartphone or tablet.

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money through the apps of “Venmo” and “Cashapp”2 in exchange for semi-nude,

nude, and sexually explicit photographs and videos.

{¶4} On October 29, 2020, the State filed a bill of information alleging that

Lewis committed the offense of Count Two, possession of criminal tools, a felony

of the fifth degree, in violation of R.C. 2923.24(A), by using a cell phone to record

and live stream the sex act with B.L.

{¶5} On November 6, 2020, Lewis appeared before the trial court, waived

prosecution by indictment, and consented to prosecution by bill of information. The

State moved to nolle prosequi Count One, second-degree felony pandering sexually

oriented material involving a minor. The trial court advised Lewis that the

maximum prison term for the offense was twelve months, and that it was not bound

by the parties’ joint sentencing recommendation of community control sanctions.

Lewis subsequently acknowledged her understanding of this on the record. Lewis

then entered her plea of guilty to Count Two, fifth-degree felony possession of

criminal tools. The trial court accepted Lewis’s guilty plea, set the matter for

sentencing, and ordered a presentence investigation and a community based

correctional facility referral.

{¶6} On November 30, 2020, Lewis appeared for sentencing. The trial court

found that Lewis had committed the offense “for hire or as part of an organized

2 These apps allow the user to send money to anyone with an account. The funds are usually drawn from and/or deposited into a linked bank account.

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criminal activity.” (Nov. 30, 2020 Sent. Hrg. at 18). The trial court then imposed

the maximum sentence of a twelve-month prison term and a $2,500 fine upon Lewis.

Lewis’s sentence was journalized in the trial court’s November 30, 2020 Judgment

Entry of Sentencing.

{¶7} It is from this judgment that Lewis now appeals, asserting the following

assignments of error.

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT ERRED AS A MATTER OF LAW IN ORDERING DEFENDANT-APPELLANT TO SERVE TWELVE (12) MONTHS IN PRISON.

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT ABUSED ITS DISCRETION IN ORDERING DEFENDANT-APPELLANT TO SERVE TWELVE (12) MONTHS IN PRISON.

First Assignment of Error

{¶8} In her first assignment of error, Lewis argues that the trial court was

required to impose community control sanctions for her fifth-degree felony

conviction under R.C. 2929.13(B)(1)(a). Specifically, Lewis maintains that the trial

court erred in finding that an exception to the community control presumption

applied to authorize the imposition of a prison term. Lewis contends the trial court’s

finding that she committed the offense for hire or as part of an organized criminal

activity under R.C. 2929.13(B)(1)(b)(viii) is not supported by the record.

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Standard of Review

{¶9} We review felony sentences using the standard of review set forth in

R.C. 2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 22.

Specifically, R.C. 2953.08(G)(2) provides that an appellate court may increase,

reduce, modify, or vacate a sentence and remand for resentencing if it clearly and

convincingly finds that either the record does not support the sentencing court’s

findings under R.C. 2929.13(B) or (D), 2929.14(B)(2)(e) or (C)(4), or 2929.20(I),

or the sentence is otherwise contrary to law. See State v. Bonnell, 140 Ohio St.3d

209, 2014-Ohio-3177, ¶ 28.

{¶10} Clear and convincing evidence is that evidence “which will provide in

the mind of the trier of facts a firm belief or conviction as to the facts sought to be

established.” Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the

syllabus. See also, In re Adoption of Holcomb, 18 Ohio St.3d 361 (1985). “Where

the degree of proof required to sustain an issue must be clear and convincing, a

reviewing court will examine the record to determine whether the trier of facts had

sufficient evidence before it to satisfy the requisite degree of proof.” Cross, 161

Ohio St. at 477.

Legal Authority

{¶11} The trial court sentenced Lewis pursuant to R.C. 2929.13(B)(1)(b).

Revised Code section 2929.13 governs sentencing guidelines for various specific

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offenses and degrees of offenses. Of important note to the instant case, “[o]n

September 30, 2011, H.B. 86 went into effect and amended R.C. 2929.13(B)(1) to

prohibit prison sentences for certain fourth and fifth-degree felonies.” State v.

Grimmette, 4th Dist. Scioto No. 18CA3830, 2019-Ohio-3576, ¶ 10. Thus, R.C.

2929.13(B)(1)(a) sets forth a presumption that community sanctions are to be

imposed for certain fifth-degree felony offenses, if the offender meets the statutory

criteria.

{¶12} Specifically, R.C. 2929.13(B)(1)(a) reads as follows:

(B)(1)(a) Except as provided in division (B)(1)(b) of this section, if an offender is convicted of or pleads guilty to a felony of the fourth or fifth degree that is not an offense of violence or that is a qualifying assault offense, the court shall sentence the offender to a community control sanction or combination of community control sanctions if all of the following apply:

(i) The offender previously has not been convicted of or pleaded guilty to a felony offense.

(ii) The most serious charge against the offender at the time of sentencing is a felony of the fourth or fifth degree.

(iii) The offender previously has not been convicted of or pleaded guilty to a misdemeanor offense of violence that the offender committed within two years prior to the offense for which sentence is being imposed.

(Emphasis added).

{¶13} Even though R.C. 2929.13(B)(1)(a) includes a presumption for

community control if an offender is convicted of, or pleads guilty to, a felony of the

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fourth or fifth degree that is not an offense of violence (or a qualifying assault

offense), the presumption of a community control sanction is subject to the

exceptions listed in R.C. 2929.13(B)(1)(b). See State v. Bartholomew, 4th Dist.

Pickaway No. 19CA29, 2020-Ohio-4611, ¶ 25; State v. Napier, 12th Dist. Clermont

No. CA2016-04-022, ¶ 44; see also State v. Parker, 8th Dist. Cuyahoga No. 104610,

2017-Ohio-4294, ¶ 7 (“Application of R.C. 2929.13(B)(1)(a), however, is subject

to R.C. 2929.13(B)(1)(b).”); State v. Reed, 5th Dist. Richland No. 17CA20, 2017-

Ohio-8237, ¶ 9 (“R.C. 2929.13(B)(1)(b) sets forth exceptions to the requirement an

offender for a fifth degree felony, who meets the criteria set forth in subsection (a),

be sentenced to community control.”).

{¶14} Revised Code section 2929.13(B)(1)(b) provides as follows:

(b) The court has discretion to impose a prison term upon an offender who is convicted of or pleads guilty to a felony of the fourth or fifth degree that is not an offense of violence or that is a qualifying assault offense if any of the following apply:

(i) The offender committed the offense while having a firearm on or about the offender’s person or under the offender’s control.

(ii) If the offense is a qualifying assault offense, the offender caused serious physical harm to another person while committing the offense, and, if the offense is not a qualifying assault offense, the offender caused physical harm to another person while committing the offense.

(iii) The offender violated a term of the conditions of bond as set by the court.

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(iv) The offense is a sex offense that is a fourth or fifth degree felony violation of any provision of Chapter 2907. of the Revised Code.

(v) In committing the offense, the offender attempted to cause or made an actual threat of physical harm to a person with a deadly weapon.

(vi) In committing the offense, the offender attempted to cause or made an actual threat of physical harm to a person, and the offender previously was convicted of an offense that caused physical harm to a person.

(vii) The offender held a public office or position of trust, and the offense related to that office or position; the offender’s position obliged the offender to prevent the offense or to bring those committing it to justice; or the offender’s professional reputation or position facilitated the offense or was likely to influence the future conduct of others.

(viii) The offender committed the offense for hire or as part of an organized criminal activity.

(ix) The offender at the time of the offense was serving, or the offender previously had served, a prison term.

(x) The offender committed the offense while under a community control sanction, while on probation, or while released from custody on a bond or personal recognizance.

(Emphasis added). Thus, R.C. 2929.13(B)(1)(b) permits a trial court to impose a

prison sentence for certain fifth-degree felony offenses if the trial court finds a

statutory exception applies. Here, the trial court found that it had the discretion to

impose a prison term because Lewis committed the offense for hire or as part of an

organized criminal activity under R.C. 2929.13(B)(1)(b)(viii).

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Trial Court’s Application of R.C. 2929.13(B)(1)(b)

{¶15} On appeal, Lewis maintains that the trial court was not authorized to

impose a prison term for her fifth-degree felony possession of criminal tools

conviction because she met the requirements of R.C. 2929.13(B)(1)(a). Therefore,

Lewis argues that she was entitled to be sentenced to community control sanctions.

Lewis further argues that the trial court’s sentence is contrary to law because the

trial court failed to make specific factual findings that an exception to the

community control presumption under R.C. 2929.13(B)(1)(b)(viii) applied.

{¶16} Contrary to Lewis’s contention on appeal, a trial court is not required

to make specific factual findings when imposing a prison sentence pursuant to R.C.

2929.13(B)(1)(b). See State v. Paxon, 11th Dist. Trumbull No. 2019-T-0011, 2019-

Ohio-3551, ¶ 18 (“the statute does not require a court to explicitly make a finding

before it has discretion to impose prison. Instead, a plain reading of the applicable

version of R.C. 2929.13(B)(1)(b) confirms that if any of the factors apply, the court

has discretion to impose a prison term. No explicit findings are required.”); State v.

Benson, 7th Dist. Mahoning No. 18 MA 0042, 2019-Ohio-4635, ¶ 13 (stating that

“a trial court is not required to make specific findings when imposing a prison

sentence pursuant to R.C. 2929.13(B)(1)(b)”). 3

3 In her reply brief Lewis also argues that the trial court was required to make its R.C. 2929.13(B)(1)(b) finding in its judgment entry of sentencing. However, Lewis fails to cite any authority to support her contention that this is a required part of the entry or that the lack of such a finding constitutes reversible error.

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{¶17} Nevertheless, in this case, the record establishes the trial court

specifically found that Lewis had committed the offense “for hire or as part of an

organized criminal activity.” See R.C. 2929.13(B)(1)(b)(viii). Specifically, the trial

court found at sentencing that:

This is the Defendant’s first felony conviction. However, amongst the seriousness factors, the Court must find that the injury to the victim was worsened by her age, the victim suffered serious psychological harm as a result of the offense, the relationship with the victim facilitated the offense, the offense was committed for hire or as part of an organized criminal activity. And that’s what this was. This was—this was done for profit. It was much in the way drug dealers expand the number of people that they have selling the drugs for them. They see the money, and they take advantage of others to do that.

You know, as [Defense Counsel] points out, many of the images on the phones here are not illegal. Miss Lewis was an adult. She was free to take pictures of herself and sell them, and videos of herself and sell them, including videos or live broadcasts of herself and other adults. But she chose to involve a child under the age of consent in our state in her videos, or in her live broadcasts. She confesses to this. It’s on tape.

***

At any rate, she (Lewis) chose to involve a minor in her broadcast. She chose to engage in sexual conduct—not once, by performing sex on her—not twice, by having the child perform sex on her— but at least three times by also engaging in what the PSI refers to at the request of this Junior character who was uncharged in our jurisdiction—what is described as a 69 position, a third act. All of these acts are uncharged. But the Court can find that they— the fact that this is what the criminal tool was used for here makes it the worst form of the offense.

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It was done for profit. PSI reveals $4,200 to Miss Lewis for this. And that’s an aggravating factor for this Court as well. This is an F5. This Court is bound by TCAP. But this was also done as part of a plea agreement.

In reviewing the plea form, the last line of the plea form reads that in consideration of said pleas of guilty, the Court hereby enters a nolle as to Count 1, the felony 2 in this case. As such, the Court is guided by [State v. Lucius, 3d Dist. Logan No. 8-18-31, 2019-Ohio- Ohio-741], in which my appellate Court finds that a sentencing Court may consider charges that have been dismissed or reduced pursuant to a plea agreement citing [State v. Parsons, 7th Dist. Belmont No. 12 BE 11, 2013-Ohio-1281, ¶ 18, citing State v. Starkey, 7th Dist. No. 06MA110, 2007-Ohio-6702, ¶ 2; State v. Cooey, 46 Ohio St.3d 20, 35 (1989)].

In doing so, this Court does find that a period of incarceration is appropriate in this case. And is going to impose a period of incarceration. I don’t believe that this will silence child victims. I believe it will send a message to adult females not to engage in sexual conduct with children, and to use them for profit, and broadcast those acts.

And therefore I am going to impose the maximum 12 month sentence, as well as the maximum $2500 fine, because this was done for profit.

(Nov. 30, 2020 Sent. Hrg. at 18-20) (emphasis added).

{¶18} As provided above, the record clearly demonstrates the trial court

specifically found that one of the statutory exceptions applied to this case, thereby

invoking its discretionary authority to impose a prison term under R.C.

2929.13(B)(1)(b). At issue here then is whether the record supports the trial court’s

determination that R.C. 2929.13(B)(1)(b)(viii) provided it with the discretion to

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impose a prison term, and whether the decision to impose a prison term was an abuse

of its discretion.

{¶19} In the instant case, with the case being resolved by guilty plea, the

presentence investigation report (“PSI”) provides the most detail in the record

regarding the nature and circumstances of Lewis’s possession of criminal tools

conviction. The PSI revealed that in the spring of 2019, local law enforcement was

contacted by the mother of the victim, who discovered that her 15-year-old

daughter, B.L., had made the acquaintance of an older adult male by the name of

Junior. Junior had solicited nude pictures and other inappropriate sexual content

from B.L. in exchange for money. B.L.’s mother became suspicious of nefarious

activity upon noticing her daughter spending large sums of money. She later learned

that B.L. had received payments from Junior totaling nearly $7,000. B.L.’s mother

contacted law enforcement when she learned that Junior wanted to meet B.L. in

person.

{¶20} Further investigation by law enforcement revealed that Lewis was also

involved with Junior. B.L. disclosed to law enforcement that she created “sex

shows” for Junior in exchange for payment with two other women, both of whom

were over the age of 18. One of these women was her cousin and the other was

Lewis, a friend of B.L.’s cousin. These videos were live streamed on both B.L.’s

and Lewis’s Periscope accounts.

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{¶21} Detective Jagger with the Marion Police Department subsequently

interviewed Lewis at the police station. Lewis recalled that B.L. was the first to be

involved with Junior. Lewis became interested in making contact with Junior once

she learned of the large amounts of money he had paid B.L. and B.L.’s cousin.

Lewis told Detective Jagger that she was aware that B.L. was only 15 years old.

Nevertheless, she admitted to broadcasting herself and B.L. engaging in sexual

conduct over Periscope in exchange for receiving money from Junior via Cashapp.

Specifically, Lewis admitted to live streaming one video, at Junior’s request, during

which she performed oral sex on B.L. and then B.L. performed oral sex on her. B.L.

and Lewis live streamed a second video, again at Junior’s request, with the two

engaging in oral sex simultaneously in the “69” position. Lewis told Detective

Jagger that she recalled being paid $1,500 from Junior for the month of November

2018. Lewis then showed Detective Jagger her account transactions which

indicated that she received payments totaling $1,700 from February 20 to April 1,

2019, and $1,000 from April 12, 2019 to May 12, 2019. It was later determined that

these videos were published on a pornography website.

{¶22} In addition to the narrative of Detective Jagger, the PSI also included

a narrative of the PSI writer’s interview with Lewis. In this interview, Lewis stated

that she had met B.L. through B.L.’s cousin, with whom Lewis was “best friends.”

Lewis admitted to making videos and selling nude photos to Junior for money. She

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also admitted to performing sexual acts with B.L. in a video, using her own

Periscope account or B.L.’s account, that was eventually published on a

pornography website. Lewis stated that she sold photos and videos to Junior from

October 2018 to March or April 2019. She explained that she did so because she

was unemployed and needed the money. At the time of sentencing Lewis was 22

years old.

{¶23} Lewis was initially charged with pandering sexually oriented matter

involving a minor, a felony of the second degree. However, she later pled guilty to

possessing criminal tools, in violation of R.C. 2923.24, a felony of the fifth degree.

Revised Code section 2923.24 states:

(A) No person shall possess or have under the person’s control any substance, device, instrument, or article, with purpose to use it criminally.

(B) Each of the following constitutes prima-facie evidence of criminal purpose:

(1) Possession or control of any dangerous ordnance, or the materials or parts for making dangerous ordnance, in the absence of circumstances indicating the dangerous ordnance, materials, or parts are intended for legitimate use;

(2) Possession or control of any substance, device, instrument, or article designed or specially adapted for criminal use;

(3) Possession or control of any substance, device, instrument, or article commonly used for criminal purposes, under circumstances indicating the item is intended for criminal use.

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(C) Whoever violates this section is guilty of possessing criminal tools. Except as otherwise provided in this division, possessing criminal tools is a misdemeanor of the first degree. If the circumstances indicate that the substance, device, instrument, or article involved in the offense was intended for use in the commission of a felony, possessing criminal tools is a felony of the fifth degree.

{¶24} At the plea hearing, the prosecutor recited the following statement of

facts supporting Lewis’s guilty plea:

[The] State would show that on or about November 1st of 2018, through April 30th of 2019, that Jensen Lewis, at [address] in Marion County, Ohio, did purposely possess a phone device which was used for the purpose to use it criminally. It was used in recording a sexual act with a minor.

(Nov. 6, 2020 Hrg at 22).

R.C. 2929.13(B)(1)(b)(viii): An Offense For Hire or as Part of an Organized Criminal Activity

{¶25} At issue on appeal is whether the record supports the trial court’s

determination that Lewis committed the possession of criminal tools offense “for

hire or as part of an organized criminal activity” under R.C. 2929.13(B)(1)(b)(viii),

in order to invoke the trial court’s discretionary authority to impose a prison term in

this case. Notably, neither the term “for hire” nor the term “organized criminal

activity” is defined in R.C. Chapter 2929, and trial courts must determine on a case-

by-case basis if an offense is “for hire” or “as a part of an organized criminal

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activity.” State v. Thompson, 3d Dist. Allen No. 1-19-30, 2020-Ohio-723, ¶ 10.

Therefore, courts have turned to other resources to find guidance in applying these

terms.

{¶26} For instance, “ ‘[F]or hire’ is defined by the Ohio Jury Instructions as

‘for pay or compensation.’ ” State v. Son, 11th Dist. Trumbull No. 98-T-0019, at *2

(Ohio Ct. App. Dec. 11, 1998), citing 4 OHIO JURY INSTRUCTIONS (1997), Section

507.24, at 200. “ ‘For hire’ is defined in Webster’s Third New International

Dictionary, Unabridged, at 1072, as follows: ‘available for use or service in return

for payment.’ ‘Payment’ is defined as: ‘1: the act of paying or giving

compensation.... 2: something that is paid: something given to discharge a debt or

obligation or to fulfill a promise...’.” State v. Henderson, 2d Dist. Montgomery No.

21745, 2007-Ohio-5367, ¶¶ 29-31, citing WEBSTER’S THIRD NEW INTERNATIONAL

DICTIONARY, UNABRIDGED, at 1659 (construing the term “for hire” as stated in R.C.

2907.24(A), which sets forth the offense of solicitation, stating that “[n]o person

shall knowingly solicit another to engage in sexual activity for hire in exchange for

the person receiving anything of value from the other person,” and concluding that

“the trial court could reasonably find that Henderson made a serious, if unusual,

offer to Briggs to engage in sex with him in exchange for some bubble gum”).

{¶27} In determining whether there was “an organized criminal activity,”

courts have generally considered the scope and length of the criminal activity,

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whether the offense was committed spontaneously/impulsively or with extensive

planning, the number of people involved, and the nature of the charges. See, e.g.,

State v. Orms, 10th Dist. Franklin No. 14-AP-750, 2015-Ohio-2870; State v. Coran,

2d Dist. Clark No. 2003-CA-80, 2004-Ohio-6874; State v. Miller, 4th Dist.

Washington No. 07CA1, 2008-Ohio-1059; State v. Radcliff, 10th Dist. Franklin

Nos. 97APA08-1054 and 97APA08-1056 (Mar. 17, 1998). See also, State v.

Washington, 4th Gallia No. 17CA8, 2018-Ohio-3545, ¶ 14, citing Griffin and Katz,

OHIO FELONY SENTENCING LAW (1999), 368-369, Section T. 4.14.3

(“Commentators have defined an ‘organized criminal activity’ as ‘criminal activity

which because of the number of participants and planned utilization of those

participants poses more of a risk to the public order than an activity carried out by

a single individual acting in isolation from other offenders or than multiple

individuals acting together spontaneously or impulsively.”); State v. Morgan, 10th

Dist. Franklin No. 13-AP-620, 2014-Ohio-5661, ¶ 38, (stating that “[a] defendant’s

participation in an aggravated robbery along with one or more co-defendants is

sufficient to find the incident occurred as part of organized criminal activity”).

Discussion

{¶28} In support of her contention on appeal that she did not commit the

possession of criminal tools offense as part of an organized criminal activity, Lewis

maintains that there is no evidence in the record to show that she had knowledge of

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the extent of the individuals involved in the criminal enterprise other than “Junior,”

B.L. and B.L.’s cousin. Lewis also argues that she did not “recruit” B.L., but learned

about Junior and his cash payments for nude and sexually explicit content from B.L.

Lewis further contends the trial court’s observation that her conduct of using a cell

phone to create and broadcast live sex acts with B.L. was done “for profit” is

insufficient to constitute a finding that the offense was “for hire” within in the

meaning of R.C. 2929.13(B)(1)(b). However, Lewis fails to cite any instructive

authority construing the term “for hire” as used in R.C. 2929.13.4

{¶29} We acknowledge that “there is not a bright line test for determining

what is an “organized criminal activity,” nor does it have a singular application.

State v. Orms, 10th Dist. Franklin No. 14AP-750, 2015-Ohio-2870, ¶ 24. Notably,

the same can be said about what constitutes an offense “for hire” under R.C.

2929.13(B)(1)(b). However, consistent with our role as an appellate court rather

than as a sentencing court, we shall not reverse a trial court’s decision to apply or

not apply the term to an act or series of acts unless the record does not support the

trial court’s findings.

4 For instance, Lewis cites R.C. 2929.04(A), the statute setting forth the criteria for a court to impose death or imprisonment for a capital offense, to suggest that “for hire” under R.C. 2929.13(B)(1)(b) must be construed to mean that the offender was solicited to commit the offense, not merely that the offense was committed “for profit.” However, other statutory offenses, such as solicitation, also employ the term “for hire,” which courts have construed to simply mean “monetary payment was expected (for hire),”and thereby have determined “for hire” to be an independent element from the act of specifically offering to engage the offense. State v. Short, 2d Dist. Montgomery No. 27192, 2017-Ohio-7200, at ¶ 36. Nevertheless, we decline to accept Lewis’s position in this regard absent any indication from the legislature that it intended the term “for hire” as used in under R.C. 2929.13 to be applied in this limited manner.

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{¶30} Here, the record demonstrates that Lewis purposefully used a cell

phone to live stream and broadcast the act of her engaging in sexual conduct with a

minor. The record establishes that Lewis committed this offense in exchange for

money. The record further indicates that Lewis knew B.L. was 15-years-old at the

time she committed the offense. Moreover, the record suggests that this was not an

isolated incident, but that Lewis used a phone to live stream and send content

involving her engaging in nudity and sexually explicit acts over a period of months,

and that Lewis willingly did so in exchange for payment that amounted to several

thousand dollars over time. Lewis was also aware that Junior had been paying a

minor to engage in similar conduct prior to becoming involved with him.

{¶31} We recognize that the majority of the facts in the record are derived

from the PSI and Lewis appears to take issue on appeal with the trial court’s reliance

on the narratives in the PSI in fashioning its sentence. It is well established that the

rules of evidence do not apply to sentencing hearings. See State v. Cook, 83 Ohio

St.3d 404, 425 (1998) (superseded by statute on other grounds). “Courts have

historically been permitted to consider hearsay evidence, evidence of an offender’s

criminal history, the facts concerning charges dismissed, and even offenses for

which charges were not filed, but were addressed in the presentence investigation.”

State v. Ropp, 3d Dist. Union No. 14-13-21, 2014-Ohio-2462, ¶ 4, citing State v.

Bowsher, 186 Ohio App.3d 162, 2010-Ohio-951 (2d Dist.); see, also, Evid.R.

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101(c)(3). Moreover, R.C. 2929.19(B)(1) permits the trial court to rely upon the

contents of the PSI for purposes of sentencing. See State v. Siefker, 3d Dist. Putman

No. 12-10-14, 2011-Ohio-1867, ¶ 20. Notably, Lewis did not object to or dispute

the accuracy of the statements contained in the PSI. See R.C. 2951.03 (according

several rights to a defendant and counsel relating to a PSI). Based on the foregoing,

we conclude that the trial court did not err in relying upon this information for

purposes of determining the appropriate sentence in this case.5

{¶32} In sum, although Lewis asserts that the record does not support the

trial court’s findings, the PSI reveals that Lewis directly admitted to two different

people that she willingly and voluntarily involved herself with an individual who

criminally solicited and distributed nude and sexually explicit materials involving

minors and that Lewis purposefully used a cell phone to participate in this criminal

activity for money while being fully aware of B.L.’s age. In this instance, and for

the purposes of R.C. 2929.13(B)(1)(b)(viii), we believe it is inconsequential that

Lewis claims that she was ignorant of the extent of Junior’s involvement in a larger

criminal enterprise. Accordingly, we cannot conclude that the trial court

5 We note that the case cited by Lewis to assert the trial court erred in relying upon the statements in the PSI is distinguishable from this case. See State v. Gaspareno, 3d Dist. Marion No. 9-15-15, 2019-Ohio-990. Specifically, in State v. Gaspareno, we sustained the appellant’s assignment of error asserting that the trial court erroneously relied upon hearsay statements contained in his co-defendants’ PSIs to find that Gaspareno committed the underlying offense for hire or as a part of an organized criminal activity under R.C. 2929.13(B)(1)(b). We concluded that Gaspareno was not accorded the same notice and opportunity to prepare a defense to any factual inaccuracies in those PSIs as he was with the one filed in his own case under R.C. 2951.03. Accordingly, we do not find our analysis in Gaspareno germane to the instant case.

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inappropriately applied the sentencing guidelines in R.C. 2929.13(B)(1)(b).

Therefore, we do not find that Lewis’s sentence in contrary to law. Nor on this basis

can we clearly and convincingly find that the record does not support the trial court’s

findings under R.C. 2929.13(B).

{¶33} The first assignment of error is therefore overruled.

Second Assignment of Error

{¶34} In her second assignment of error, Lewis contends that the trial court

abused its discretion in imposing a prison term under R.C. 2929.13(B)(1)(b).

Specifically, Lewis maintains that her sentence is disproportionate to the community

control sanctions imposed upon B.L.’s cousin in a separate criminal matter. Lewis

asserts that the facts in that case are identical to hers. Specifically, Lewis claims

that B.L.’s cousin engaged in the same conduct and pled guilty to a similar offense.

Lewis argues that the only difference between the cases is that B.L.’s cousin’s case

was heard by a different judge who imposed a more lenient sentence. However,

there is nothing properly admitted in the record of the case before us that would

allow this Court to consider the particulars of B.L.’s cousin’s case.

{¶35} Moreover, we have already determined in our resolution of the first

assignment of error that Lewis has failed to demonstrate that the trial court’s

sentence is contrary to law and/or that its findings under R.C. 2929.13(B) are not

supported by the record. Therefore, to the extent that Lewis is attempting to

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challenge the trial court’s consideration of the felony sentencing factors under R.C.

2929.11 and R.C. 2929.12, we note that the Supreme Court of Ohio has recently

clarified that an appellate court shall no longer analyze whether a sentence is

unsupported by the record under R.C. 2929.11 and 2929.12. See, State v. Jones, --

- Ohio St.3d ---, 2020-Ohio-6729, ¶ 42 (concluding that an appellate court may not

modify or vacate a felony sentence based upon a finding by clear and convincing

evidence that the record does not support the trial court’s findings under R.C.

2929.11 and R.C. 2929.12). Accordingly, we conclude that the trial court did not

abuse its discretion in imposing a prison term upon Lewis.

{¶36} The second assignment of error is therefore overruled.

{¶37} For all these reasons, the first and second assignments of error are

overruled and the judgment of the Marion County Court of Common Pleas is

affirmed.

WILLAMOWSKI, P.J. and MILLER, J., concur.

/jlr

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