State v. Shreve

2025 Ohio 690

• Court: Ohio Court of Appeals
• Decided: February 27, 2025
• Docket: 24-COA-018
• Status: Published

Opinion

[Cite as State v. Shreve, 2025-Ohio-690.]

COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. Robert G. Montgomery, J. Hon. Kevin W. Popham, J. -vs-

KIM SHREVE Case No. 24-COA-018

Defendant-Appellant OPINION

CHARACTER OF PROCEEDINGS: Appeal from the Ashland County Court of Common Pleas, Case No. 23-CRI-085

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: February 27, 2025

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

CHRISTOPHER R. TUNNELL BRIAN A. SMITH Ashland County Prosecutor 123 South Miller Road, Suite 250 Fairlawn, Ohio 44333 ANDRES R. PEREZ Ashland County Assistant Prosecutor 110 Cottage Street, Third Floor Ashland, Ohio 44805 Hoffman, P.J. {¶1} Defendant-appellant Kim Shreve appeals the judgment entered by the

Ashland County Common Pleas Court convicting him following his pleas of guilty to four

counts of violating a protection order (R.C. 2919.27(A)(1),(B)(4)) and one count of

telecommunication harassment (R.C. 2917.21(A)(5),(C)(2)). The trial court sentenced

him to an aggregate term of incarceration of nine years. Plaintiff-appellee is the State of

Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} In December of 2022, Appellant was incarcerated for domestic violence

against his wife, who is also the victim in the instant case. On December 19, 2022, the

victim reported to police Appellant was calling her from jail. While she did not accept the

calls, Appellant would leave a greeting, saying, “I love you family.” From December 11,

2022, to February 28, 2023, Appellant called the victim 55 times. In August of 2023, the

victim reported to police Appellant was still calling her continuously. Appellant also sent

her letters on a food package program, asking her to help him out by sending a food box.

Appellant continued to profess his love for the victim.

{¶3} Appellant was indicted by the Ashland County Grand Jury on four counts of

violating a protection order and one count of telecommunications harassment. He

entered pleas of guilty to all charges. At the sentencing hearing, the victim detailed the

physical and emotional trauma she continued to suffer from the abuse she endured at the

hands of Appellant. The victim expressed her frustration with Appellant receiving

sentences in the past of only a few years incarceration, and soon being released to

continue abusing her. She stated she once escaped to a battered woman’s shelter, but

Appellant threatened to kill her dog if she did not return to him. She feared Appellant would kill her, as he had threatened to pour gasoline over her and set her on fire if she

left him. The trial court sentenced Appellant to twenty-four months incarceration on each

count of violating a protection order and twelve months incarceration for

telecommunications harassment, to be served consecutively for an aggregate prison term

of nine years incarceration.

{¶4} It is from the April 16, 2024 judgment of the trial court Appellant prosecutes

his appeal, assigning as error:

THE TRIAL COURT’S IMPOSITION OF CONSECUTIVE

SENTENCES UNDER R.C. 2929.14(C)(4) WAS NOT SUPPORTED BY

THE RECORD.

{¶5} R.C. 2929.14(C)(4) provides:

(4) If multiple prison terms are imposed on an offender for convictions

of multiple offenses, the court may require the offender to serve the prison

terms consecutively if the court finds that the consecutive service is

necessary to protect the public from future crime or to punish the offender

and that consecutive sentences are not disproportionate to the seriousness

of the offender's conduct and to the danger the offender poses to the public,

and if the court also finds any 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.

{¶6} The trial court must make the R.C. 2929.14(C)(4) findings at the sentencing

hearing and incorporate its findings into its sentencing entry, but it has no obligation to

state reasons to support its findings, nor must it recite certain talismanic words or phrases

in order to be considered to have complied. State v. Bonnell, 2014-Ohio-3177, syllabus.

{¶7} The Ohio Supreme Court has recently clarified the standard of review this

Court is to apply in reviewing consecutive sentences:

Nowhere does the appellate-review statute direct an appellate court

to consider the defendant's aggregate sentence. Rather, the appellate court

must limit its review to the trial court's R.C. 2929.14(C)(4) consecutive-

sentencing findings. In this case, the court of appeals purported to review

the trial court's findings. But much of its analysis focused on its disagreement with the aggregate sentence. The appellate court

emphasized that Glover's aggregate sentence was “tantamount to a life

sentence,” 2023-Ohio-1153, 212 N.E.3d 984, ¶ 59 (1st Dist.), and

determined that it was too harsh when compared with the sentences that

the legislature has prescribed for what the court considered more serious

crimes, id. at ¶ 97-98. To the extent that the court of appeals premised its

holding on its disagreement with Glover's aggregate sentence rather than

its review of the trial court's findings, it erred in doing so.

The statute does not permit an appellate court to simply substitute

its view of an appropriate sentence for that of the trial court. An appellate

court's inquiry is limited to a review of the trial court's R.C. 2929.14(C)

findings. R.C. 2953.08(G)(2). Only when the court of appeals concludes that

the record clearly and convincingly does not support the trial court's findings

or it clearly and convincingly finds that the sentence is contrary to law is it

permitted to modify the trial court's sentence. Id.

Thus, an appellate court may not reverse or modify a trial court's

sentence based on its subjective disagreement with the trial court. And it

may not modify or vacate a sentence on the basis that the trial court abused

its discretion. Rather, the appellate court's review under R.C.

2953.08(G)(2)(a) is limited. It must examine the evidence in the record that

supports the trial court's findings. And it may modify or vacate the sentence

only if it “clearly and convincingly” finds that the evidence does not support

the trial court's R.C. 2929.14(C)(4) findings. R.C. 2953.08(G)(2)(a). Though “clear-and-convincing” is typically thought of as an

evidentiary standard, the General Assembly has chosen to use that

standard as the measure for an appellate court's review of a trial court's

R.C. 2929.14(C)(4) findings. As we have explained, “clear and convincing

evidence” is a degree of proof that is greater than a preponderance of the

evidence but less than the beyond-a-reasonable-doubt standard used in

criminal cases. Gwynne, 2023-Ohio-3851, 231 N.E.3d 1109, at ¶ 14 (lead

opinion), citing Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954),

paragraph three of the syllabus. The appellate-review statute does not

require that the appellate court conclude that the record supports the trial

court's findings before it may affirm the sentence. Rather, the statute only

allows for modification or vacation only when the appellate court “clearly

and convincingly finds” that the evidence does not support the trial court's

findings. R.C. 2953.08(G)(2)(a). “This language is plain and unambiguous

and expresses the General Assembly's intent that appellate courts employ

a deferential standard to the trial court's consecutive-sentence findings.

R.C. 2953.08(G)(2) also ensures that an appellate court does not simply

substitute its judgment for that of a trial court.” Gwynne, 2023-Ohio-3851,

231 N.E.3d 1109, at ¶ 15 (lead opinion).

{¶8} State v. Glover, 2024-Ohio-5195, ¶¶43-46.

{¶9} In the instant case, the trial court found consecutive sentences are

necessary to protect the public from future crime or to punish Appellant, the sentence is not disproportionate to Appellant’s conduct and to the danger Appellant poses to the

public, and Appellant’s criminal history demonstrates consecutive sentences are

necessary to protect the public from future crime by Appellant. Appellant concedes the

trial court made the requisite findings to impose consecutive sentences, but argues the

findings are clearly and convincingly not supported by the record. Appellant argues

Appellant did not have direct contact with the victim because she did not answer his calls,

and there is no evidence any of the calls involved threats or physical violence. He also

argues the victim’s statement to the court addressed issues of past acts by Appellant,

rather than addressing the impact of the instant offenses.

{¶10} The trial court stated on the record at the sentencing hearing:

The Court has reviewed the facts of this case. You know, the contact

that was reported was not threatening. And Mr. Shreve, you have accepted

responsibility.

But that’s about it as far as I can say is good in this case. You know,

you have six prior felonies all resulting with prison sentences, including a

prior telecommunications felony.

You’re in prison for a felony domestic violence, 36 months. Your

record is littered with assaults, domestic violence, multiple reductions of

domestic violence, ag menacing, disorderly conduct, resisting arrest, and

other telephone harassment, which was reduced from a violation of a

protection order, multiple probation violations. The history just indicates that that’s what happened to you, continually and repeatedly harassed Miss

Shreve.

You know, they counted from the time frame of December 11, 2022

to February 28th 2023, you called her 55 times over that two-month period.

So to insinuate that you didn’t and she didn’t accept the calls, they were just

you called. You left a message as far as your voice identification was so

that she would hear it, but she didn’t accept the call. So to insinuate that

you didn’t realize she didn’t want you to do that is hogwash.

That continued into August. You were still constantly calling her in

August. You sent her a letter on the food package program. Just again, a

never-ending cycle of harassment, which goes with the cycle of assaulting

her, intimidating her, and harassing her. I understand why she feels the

way that she does. I understand why she is in constant anxiety and afraid

of you. Your record supports that.

{¶11} Tr. 15-17.

{¶12} As discussed by the trial court, Appellant had a lengthy criminal history,

including six prior felonies for which he served prison time. While Appellant is factually

correct the victim did not accept Appellant’s calls, the calls were not threatening in nature,

and much of the victim’s statement to the trial court involved past actions rather than the

instant offenses, the victim’s detailing of her history of abuse at the hands of the Appellant

explained why his continuous attempts to contact her, even if the messages themselves

were not threatening in nature, were not merely innocent proclamations of love, as Appellant would have liked the trial court to believe. As noted by the trial court, the instant

offenses were part of a continuous cycle of harassment of the victim in this case. We do

not find the trial court’s findings imposing consecutive sentences were clearly and

convincingly not supported by the record.

{¶13} The assignment of error is overruled. The judgment of the Ashland County

Common Pleas Court is affirmed.

By: Hoffman, P.J. Montgomery, J. Popham, J. concur