State v. Moss

2017 Ohio 4233

Opinion

[Cite as State v. Moss, 2017-Ohio-4233.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

ASHTABULA COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, : CASE NO. 2016-A-0046 - vs - :

REJEANA MOSS, :

Defendant-Appellant. :

Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2015 CR 136.

Judgment: Affirmed.

Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH 44047-1092 (For Plaintiff-Appellee).

Matthew C. Bangerter, P.O. Box 148, Mentor, OH 44061 (For Defendant-Appellant).

THOMAS R. WRIGHT, J.

{¶1} Appellant, Rejeana Moss, appeals the trial court’s imposition of a ten-year

prison term on five third-degree felonies as excessive. She contends that the term must

be reduced because the trial court did not consider statutory sentencing factors

favorable to her. We affirm.

{¶2} During the relevant time period, appellant and her husband, co-defendant

David Moss, lived in a single-family dwelling in Dorset Township, Ashtabula County, Ohio. In July 2001, the couple became foster parents to R.M. Two years later, they

adopted him. R.M. continued to reside with the Mosses until he turned eighteen years

old in November 2009.

{¶3} In 2003, the couple became foster parents to three other children, R.D.M.,

A.E.M., and S.J.M, all biologically related. The oldest of the three, R.D.M. a ten-year-

old boy, is developmentally disabled. The other two, both girls, were six and three when

they first started living with the Mosses. Like R.M., the Mosses adopted these children.

{¶4} Initially, the three related children attended public schools. At some point

prior to 2011, though, the Mosses withdrew the children from public schools and

educated them at home.

{¶5} On August 26, 2013, the two girls surreptitiously left the home and took

the Mosses’ vehicle without their knowledge. Neither child had a driver’s license and

they were quickly involved in a minor traffic accident. The girls were charged with

unauthorized use of a motor vehicle in juvenile court. As part of the accident

investigation, the girls made statements to authorities concerning how they were treated

by the Mosses. The statements led to a separate investigation into the condition of the

Mosses’ residence by the county sheriff’s department and children’s services. After

investigation, the authorities removed all three of the related children from the Mosses’

custody.

{¶6} The investigation revealed that the three children were primarily living in

two bedrooms, the girls in one and the boy in the other. Each bedroom had a padlock

allowing the children to be locked inside. The windows in the girls’ bedroom were

covered with plywood, and the curtains over the only window in the boy’s bedroom were

2 stapled to the woodwork. The children could not look out their windows and could not

leave their rooms unless someone unlocked the doors. Furthermore, the only furniture

was one bed for each child. All other bedroom furniture and the children’s clothes were

in the hallway outside the bedrooms. In addition, the girls’ bedroom had two buckets

and toilet paper, while the boy’s bedroom contained a metal can.

{¶7} According to the girls, during the two-year period from 2011 through their

removal from the Mosses’ home, all three children were locked in their bedrooms for at

least twenty hours every day. While inside the bedrooms, they were not allowed to

have anything, including reading material, and wore only minimal clothing, such as

underwear. The children were permitted to leave their bedrooms three to four times a

day to eat or use the bathroom.

{¶8} The children were regularly subjected to corporal punishment, usually by

means of a homemade paddle. The punishment was normally meted out by David

Moss for errors in the children’s homework. According to the girls, the paddle was used

so often and harshly that it had red blood stains. Each girl asserted that appellant

physically abused her on multiple occasions. According to A.E.M. appellant once

choked her and hit her head so hard against the wall that her teeth split her lip.

{¶9} Eighteen months after removal of the three children, the county grand jury

issued a nine-count indictment against appellant, charging her with three counts of

endangering children, three counts of kidnapping, and three counts of felonious assault.

Three months later, the grand jury returned a second indictment, charging her with one

additional count of each offense.

{¶10} Appellant ultimately pleaded guilty to four counts of endangering children,

3 third-degree felonies under R.C. 2919.22(B)(2), and one amended count of attempted

felony assault, a third-degree felony under R.C. 2923.02(A) and 2903.11(A)(1). The

state dismissed the remaining seven charges. The trial court found appellant guilty on

all five counts and referred the matter to the adult probation department for presentence

investigation.

{¶11} At sentencing, appellant’s counsel requested community control

sanctions. In support, counsel stated that appellant believed she had acted

appropriately in disciplining the four children the majority of the time, and there had only

been a few occasions when the discipline was too severe. Counsel also provided

explanations for the condition of the children’s bedrooms. In speaking on her own

behalf, appellant said she had a “heavy heart” for what had taken place, but also

asserted that the three “related” children had special needs/disabilities that made taking

care of them more difficult. In response, the state read into the record statements from

R.M. and two girls.

{¶12} In imposing sentence, the trial court noted that there were multiple victims,

that each victim was under the age of eighteen when the crimes occurred, and that one

of the victims was developmentally disabled. The court further noted that the victims

suffered both physical and psychological harm, and that appellant and her husband

subjected them to prolonged periods of “reckless torture” through the use of excessive

punishment and restraint. Accordingly, the trial court imposed a twenty-four month

prison term on each of the five charges, consecutively, for an aggregate term of ten

years.

{¶13} Appellant assigns the following as error:

4 {¶14} “The trial court erred by sentencing the defendant-appellant to a term of

imprisonment contrary to statute and where its findings were not supported by the

record.”

{¶15} Appellant maintains the trial court erred in failing to consider favorable

sentencing factors. Specifically, she claims the court ignored factors under R.C.

2929.12(C) and (E) that tended to establish the crimes she committed were not the

most serious form of endangering children and she was highly unlikely to commit any

additional offenses in the future. Appellant argues the trial court should have given

more weight to the part that the three “related” children had special needs and were

difficult to control.

{¶16} Appellate review of felony sentences is governed by the standard in R.C.

2953.08(G)(2). State v. Lucas, 11th Dist. Lake No. 2016-L-063, 2017-Ohio-429, ¶8,

citing State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶22. The relevant part of

the statute provides:

{¶17} “The court hearing an appeal under division (A), (B), or (C) of this section

shall review the record, including the findings underlying the sentence or modification

given by the sentencing court.

{¶18} “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. The appellate court’s standard for

review is not whether the sentencing court abused its discretion. The appellate court

may take any action authorized by this division if it clearly and convincingly finds either

of the following:

5 {¶19} “(a) That 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;

{¶20} “(b) That the sentence is otherwise contrary to law.”

{¶21} Thus, as an appellate court, we must affirm the felony sentence imposed

by the trial court unless we determine by clear and convincing evidence that the trial

court’s findings are not supported by the record or that the sentence otherwise conflicts

with the governing law. Lucas, 2017-Ohio-429, at ¶8.

{¶22} “‘It is important to note “that the clear and convincing standard used by

R.C. 2953.08(G)(2) is written in the negative. It does not say that the trial court must

have clear and convincing evidence to support its findings. Instead, it is the court of

appeals that must clearly and convincingly find that the record does not support the

court’s findings.” [State v.] Venes, 2013-Ohio-1891, 992 N.E.2d 453, at ¶21. “In other

words, the restriction is on the appellate court, not the trial judge. This is an extremely

deferential standard of review.” Id.’ State v. Rodeffer, 2nd Dist. Montgomery Nos.

25574, 25575, and 25576, 2013-Ohio-5759, ¶31.” State v. Guth, 11th Dist. Portage No.

2015-P-0083, 2016-Ohio-8221, ¶23.

{¶23} In imposing a felony sentence, the trial court is obligated to consider both

the purposes of sentencing under R.C. 2929.11(A) and the factors for seriousness and

recidivism under R.C. 2929.12. State v. Hull, 11th Dist. Lake No. 2016-L-035, 2017-

Ohio-157, ¶18. In fulfilling this duty, though, the court is not required to make specific

findings on the record or use any specific language during the sentencing hearing or in

the sentencing judgment. Lucas, 2017-Ohio-429, at ¶11. Moreover, in weighing the

6 factors, the court has no duty to give particular weight or emphasis to a specific factor

under a given set of facts. Id.

{¶24} Given that the trial court is not obligated to refer to every factor listed in

R.C. 2929.12 as part of its sentencing analysis, “the defendant has the burden to

affirmatively show that the court did not consider the applicable sentencing criteria or

that the sentence imposed is ‘strikingly inconsistent’ with the applicable sentencing

factors.” Hull, at ¶18, citing State v. Long, 2014-Ohio-4416, 19 N.E.3d 981, ¶79.

{¶25} During the sentencing hearing, the trial court expressly stated that, in

determining the length of appellant’s sentence, it considered the purposes and

principles of felony sentencing, as set forth in R.C. 2929.11, and the seriousness and

recidivism factors, as delineated in R.C. 2929.12. Notwithstanding this, appellant states

that the record supports the conclusion that the seriousness and recidivism factors were

not considered because the trial court did not discuss favorable factors. However, the

sentencing transcript does not support her assertion. Although the trial court did not

reference any factors under R.C. 2929.12(C) that tend to show that appellant’s conduct

was less serious than the conduct that forms the basis for her crimes, it did cite three

factors under R.C. 2929.12(E) that tend to show that she is not likely to commit future

crimes. Specifically, the trial court noted that appellant had no prior criminal record as

an adult or a juvenile, led a law-abiding life for many years, and expressed remorse for

the harm caused.

{¶26} In regard to seriousness, appellant refers to four favorable statutory

factors: (1) whether the victims induced the crimes; (2) whether the offender acted

under strong provocation; (3) whether the offender caused actual physical harm; and (4)

7 whether there was a substantial basis to mitigate the offender’s actions. See R.C.

2929.12(C)(1)-(4). Given the prosecutor’s description as to the manner in which the

four children were treated, the trial court could justifiably find that none of the four

factors apply. As to the “physical harm” factor, the prosecutor read statements from

A.E.M. and S.J.M., in which they both refer to being hit by appellant. As noted above,

A.E.M. stated that appellant not only choked her on one occasion, but also hit her so

hard that her tooth went through her lip.

{¶27} In relation to whether she acted under a strong provocation and whether a

substantial mitigating factor existed, appellant asserts that the three related children had

special needs which made constant supervision necessary. She emphasizes that when

she and her husband first agreed to take the three children in, they were not told the

children had special needs and were not given any instruction on how to take care of

them.

{¶28} First, there is nothing in the record showing that any of the three children

provoked appellant. In the absence of such a showing, the amount of corporeal

punishment imposed upon the children cannot be justified under any circumstances.

Moreover, the two girls stated that the primary cause for the physical punishment was

mistakes in their homework. Second, even if the children did need constant

supervision, this would not warrant keeping them locked up inside their bedrooms for

twenty hours each day. Forcing a child to stay in one room the majority of a day with

nothing to do can only be characterized as inhumane. Third, if appellant and her

husband became incapable of providing proper care, they should have contacted the

authorities who gave them the children in 2003. The child’s special needs cannot be

8 invoked as a mitigating factor.

{¶29} Although the trial court did not reference every factor under R.C. 2929.12,

appellant has failed to point to any statement affirmatively showing that the relevant

sentencing factors were not considered. Furthermore, the record does not support the

conclusion that the aggregate ten-year term is “strikingly inconsistent” with the

applicable sentencing factors. Even though there are some factors indicating that

appellant is unlikely to commit future criminal acts, this is clearly outweighed by the

seriousness of the four crimes she committed. As the trial court aptly stated, the victims

were recklessly abused in a cruel manner over a prolonged period of time.

{¶30} Appellant has failed to clearly and convincingly show that the trial court

failed to consider the principles of felony sentencing, or that the aggregate ten-year

sentence is otherwise contrary to law.

{¶31} The judgment of the Ashtabula County Court of Common Pleas is

affirmed.

DIANE V. GRENDELL, J.,

TIMOTHY P. CANNON, J.,

concur.