State v. Vanausdal

2016 Ohio 7735

• Court: Ohio Court of Appeals
• Decided: November 14, 2016
• Docket: 17-16-06
• Status: Published

Opinion

[Cite as State v. Vanausdal, 2016-Ohio-7735.]

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

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 17-16-06

v.

GREGORY W. VANAUSDAL, OPINION

DEFENDANT-APPELLANT.

Appeal from Shelby County Common Pleas Court Trial Court No. 16CR000015

Judgment Affirmed

Date of Decision: November 14, 2016

APPEARANCES:

Mollie B. Hojnicki-Mathieson for Appellant

Brandon W. Puckett for Appellee Case No. 17-16-06

PRESTON, J.

{¶1} Defendant-appellant, Gregory W. Vanausdal (“Vanausdal”), appeals

the March 16, 2016 judgment entry of sentence of the Shelby County Court of

Common Pleas. He argues that his convictions for rape and pandering sexually

oriented material involving a minor are allied offenses of similar import under R.C.

2941.25(A) and therefore subject to merger. He also argues that his sentence is

contrary to law because consecutive sentences are not supported by R.C.

2929.14(C)(4). For the reasons that follow, we affirm.

{¶2} On February 2, 2016, the State filed a bill of information charging

Vanausdal with Count One of rape in violation of R.C. 2907.02(A)(1)(b), a first-

degree felony, and Count Two of pandering sexually oriented material involving a

minor in violation of R.C. 2907.322(A)(1), a second-degree felony. (Doc. No. 1).

Vanausdal waived service of summons, the reading of the bill of information, and

his right to proceed by indictment. (Doc. Nos. 7, 8, 9). He entered pleas of guilty

to both counts of the bill of information. (Feb. 2, 2016 Tr. at 18-19); (Doc. No. 10).

The trial court accepted Vanausdal’s guilty pleas and found him guilty of both

counts. (Feb. 2, 2016 Tr. at 19); (Doc. No. 11).

{¶3} On March 14, 2016, Vanausdal filed a sentencing memorandum, in

which he argued, among other things, that the offenses of which he was convicted

are allied offenses of similar import and should merge. (Doc. No. 21).

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{¶4} On March 15, 2016, the trial court held a sentencing hearing. (Mar. 15,

2016 Tr. at 3). The parties stipulated as follows to the underlying facts:

The parties would stipulate that the Defendant raped the victim

in this case who was a child less than 13 years of age; that the rape

was recorded via a video camera by the Defendant, which video

camera was located on – in the bedroom where the child was raped.

The parties would also stipulate * * * that the video recording

was later uploaded onto a computer hard drive; that after it was

uploaded, a search was conducted of the Defendant’s premises and

then – and then a subsequent search was conducted once the video

camera was found. In between those two searches, the Defendant

removed the hard drive from his computer, tried to hide the images on

the computer, and tried to hide the hard drive itself.

***

[T]here is no evidence that this recording was ever disseminated

to any third party, that is, anybody other than Mr. Vanausdal would

have viewed the recording.

(Id. at 4-5). The trial court ruled that Counts One and Two are not allied offenses

of similar import and sentenced Vanausdal to 10 years to life in prison as to Count

One and 5 years in prison as to Count Two, to be served consecutively. (Id. at 30);

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(Doc. No. 23). The trial court filed its judgment entry of sentence on March 16,

2016. (Doc. No. 23).

{¶5} Vanausdal filed a notice of appeal on March 23, 2016. (Doc. No. 33).

He raises two assignments of error for our review.

Assignment of Error No. I

Appellant’s offenses were allied offenses of similar import and subject to merger.

{¶6} In his first assignment of error, Vanausdal argues that Counts One and

Two are allied offenses of similar import under R.C. 2941.25(A). Therefore,

Vanausdal argues, the trial court should have merged the offenses and sentenced

him on only one of them.

{¶7} “A defendant bears the burden of proving that the offenses for which he

has been convicted and sentenced constitute allied offenses of similar import

pursuant to R.C. 2941.25.” State v. Campbell, 12th Dist. Butler No. CA2014-06-

137, 2015-Ohio-1409, ¶ 18, citing State v. Luong, 12th Dist. Butler No. CA2011-

06-110, 2012-Ohio-4520, ¶ 46. “A court will look to the information contained in

the record to make its allied offense determination, including the indictment, bill of

particulars, and the presentence investigation [“PSI”] report.” Id., citing State v.

Tannreuther, 12th Dist. Butler No. CA2013-04-062, 2014-Ohio-74, ¶ 16. Whether

offenses are allied offenses of similar import is a question of law that this court

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reviews de novo. State v. Stall, 3d Dist. Crawford No. 3-10-12, 2011-Ohio-5733, ¶

15, citing State v. Brown, 3d Dist. Allen No. 1-10-31, 2011-Ohio-1461, ¶ 36.

{¶8} R.C. 2941.25, Ohio’s multiple-count statute, states:

(A) Where the same conduct by defendant can be construed to

constitute two or more allied offenses of similar import, the

indictment or information may contain counts for all such offenses,

but the defendant may be convicted of only one.

(B) Where the defendant’s conduct constitutes two or more offenses

of dissimilar import, or where his conduct results in two or more

offenses of the same or similar kind committed separately or with a

separate animus as to each, the indictment or information may contain

counts for all such offenses, and the defendant may be convicted of

all of them.

{¶9} In State v. Bailey, the First District Court of Appeals succinctly

addressed the evolving standard applied by the Supreme Court of Ohio to determine

whether allied offenses are subject to merger. 1st Dist. Hamilton No. C-140129,

2015-Ohio-2997, ¶ 75-77. The First District espoused:

In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942

N.E.2d 1061, the Ohio Supreme Court changed the standard for

evaluating when allied offenses are subject to merger under the statute

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by overruling, in part, State v. Rance, 85 Ohio St.3d 632, 710 N.E.2d

699 (1999). The test in Rance to determine merger called for the court

to first compare the statutory elements “solely in the

abstract.” Johnson at ¶ 44. Under Johnson, in determining whether

allied offenses are subject to merger for purposes of R.C. 2941.25,

courts must “consider the offenses at issue in light of the defendant’s

conduct,” id. at ¶ 46, but are no longer to undertake “any hypothetical

or abstract comparison of the offenses at issue.” Id. at ¶ 47.

Id. at ¶ 75.

{¶10} More recently, the Supreme Court of Ohio “clarified the Johnson test

by stating that R.C. 2941.25 contemplates an evaluation of ‘three separate factors—

the conduct, the animus, and the import.’” Id. at ¶ 76, quoting State v. Ruff, 143

Ohio St.3d 114, 2015-Ohio-995, paragraph one of the syllabus. See also State v.

Earley, 145 Ohio St.3d 281, 2015-Ohio-4615, ¶ 12. “Separate convictions are

permitted under R.C. 2941.25 for allied offenses if we answer affirmatively to just

one of the following three questions: (1) Were the offenses dissimilar in import or

significance? (2) Were they committed separately? and (3) Were they committed

with a separate animus or motivation?” Bailey at ¶ 76, citing Ruff at paragraph three

of the syllabus.

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{¶11} Vanausdal was convicted of rape in violation of R.C.

2907.02(A)(1)(b). That statute provides:

No person shall engage in sexual conduct with another who is not the

spouse of the offender or who is the spouse of the offender but is living

separate and apart from the offender, when any of the following

applies: * * * The other person is less than thirteen years of age,

whether or not the offender knows the age of the other person.

R.C. 2907.02(A)(1)(b). Vanausdal argues that his rape conviction merges with his

conviction under R.C. 2907.322(A)(1) for pandering sexually oriented material

involving a minor. That statute provides: “No person, with knowledge of the

character of the material or performance involved, shall do any of the following: *

* * Create, record, photograph, film, develop, reproduce, or publish any material

that shows a minor participating or engaging in sexual activity, masturbation, or

bestiality * * *.” R.C. 2907.322(A)(1).

{¶12} We will first address whether Vanausdal committed the offenses with

separate animus or motivation—the third Ruff factor. We conclude that he did.

Vanausdal argues that his motivation for both offenses was “sexual gratification.”

(Appellant’s Brief at 6-7). While sexual gratification was his motivation for raping

the victim, his motivation for video-recording the rape was different and separate.

That is, Vanausdal was motivated to record the rape so that he could memorialize it

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and relive the rape in the future—after committing the offense of rape. See State v.

Starcher, 5th Dist. Stark No. 2015CA00058, 2015-Ohio-5250, ¶ 35-37; State v.

Campbell, 12th Dist. Butler No. CA2014-06-137, 2015-Ohio-1409, ¶ 22. See also

State v. Meadows, 28 Ohio St.3d 43, 50 (1986) (noting that child pornography

involves “memorializations of cruel mistreatment and unlawful conduct”).

Therefore, we conclude that Vanausdal committed the offenses with separate

animus and motivation, and the trial court properly declined to consider the offenses

allied under R.C. 2941.25.

{¶13} While we could stop here with our analysis because an affirmative

answer to any one of the three questions from Ruff justifies separate convictions, we

elect to also address the first factor—namely, whether the offenses are dissimilar in

import or significance. “As explained in Ruff, offenses are of dissimilar import

‘when the defendant’s conduct constitutes offenses involving separate victims or if

the harm that results from each offense is separate and identifiable.’” Bailey, 2015-

Ohio-2997, at ¶ 77, quoting Ruff at paragraph two of the syllabus. While both

offenses in this case involved the same victim, the harm that resulted from each

offense is separate and identifiable. The victim in this case suffered physical and

emotional harm as a result of the rape. See State v. Tajblik, 6th Dist. Wood No.

WD-14-064, 2016-Ohio-977, ¶ 29. Separately and identifiably, the victim suffered

emotional, mental, and psychological harm by Vanausdal’s possession of the

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sexually oriented material. See State v. Stout, 7th Dist. Mahoning No. 13 MA 30,

2014-Ohio-1094, ¶ 37. “‘Individuals who view or circulate child pornography harm

the child in several ways,’” including “‘by perpetuating the abuse’” and “‘by

invading the child’s privacy.’” (Emphasis added.) State v. Starcher, 5th Dist. Stark

No. 2015CA00058, 2015-Ohio-5250, ¶ 36, quoting State v. Duhamel, 8th Dist.

Cuyahoga No. 102346, 2015-Ohio-3145, ¶ 61. In short, the harm suffered by the

victim in this case as a result of the act of rape was separate and identifiable from

the harm caused by Vanausdal’s creation of child pornography.

{¶14} We elect to also address the second factor under Ruff—namely,

whether Vanausdal committed the offenses separately. Whether offenses are

committed separately often hinges on whether there is a temporal or spatial

separateness in the offenses. See State v. Skapik, 2d Dist. Champaign No. 2015-

CA-5, 2015-Ohio-4404, ¶ 19; State v. Anderson, 1st Dist. Hamilton No. C-110029,

2012-Ohio-3347, ¶ 24. However, even a “slight” temporal separation of the

offenses can establish separate offenses. See State v. Norris, 8th Dist. Cuyahoga

No. 102104, 2015-Ohio-2857, ¶ 18, citing State v. Jackson, 1st Dist. Hamilton No.

C-090414, 2010-Ohio-4312, ¶ 26; State v. Taylor, 2d Dist. Montgomery No. 23990,

2014-Ohio-3647, ¶ 12. Vanausdal argues that the offenses “were committed at

exactly the same time” and that “[t]here is no Pandering charge without the act of

Rape that occurred in this case.” (Appellant’s Brief at 5); (Appellant’s Reply Brief

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at 2). Vanausdal is incorrect when he says that the offenses were committed at

exactly the same time. While the rape occurred as Vanausdal was creating the

sexually oriented material involving the minor victim, Vanausdal’s creation of the

sexually oriented material began before and continued after he committed the rape.

Vanausdal started the videorecording before raping the victim, then discontinued

the videorecording and uploaded it to his computer’s hard drive after raping the

victim. Therefore, because the offense of pandering sexually oriented material

involving a minor temporally preceded and extended beyond the rape offense, the

offenses were “committed separately” under the second Ruff factor. See Skapik at

¶ 19.

{¶15} For these reasons, we conclude that the trial court did not err in

declining to merge the offenses as allied offenses of similar import under R.C.

2941.25(A). Vanausdal’s first assignment of error is overruled.

Assignment of Error No. II

Appellant’s sentence is contrary to law because consecutive sentences were not supported by R.C. 2929.14(C)(4).

{¶16} In his second assignment of error, Vanausdal argues that “the trial

court failed to engaged [sic] in the appropriate analysis required to satisfy R.C.

2929.14(C)(4).” (Appellant’s Brief at 9). Specifically, Vanausdal argues that

“[t]here is no evidence in the record to support the trial court’s conclusions” that

consecutive sentences are necessary to protect the public from future crime or to

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punish Vanausdal and that consecutive sentences are not disproportionate to the

seriousness of Vanausdal’s conduct and to the danger posed to the public. (Id.).

Vanausdal also argues that “[a] single prison sentence would not have demeaned

the seriousness of the offenses.” (Id. at 10).

{¶17} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence

“only if it determines by clear and convincing evidence that the record does not

support the trial court’s findings under relevant statutes or that the sentence is

otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,

¶ 1. Specifically as to the imposition of consecutive sentences, R.C.

2953.08(G)(2)(a) provides that an appellate court—after reviewing the record,

including the findings underlying the sentence given by the trial court—may modify

or vacate the sentence if the appellate court “clearly and convincingly finds * * *

[t]hat the record does not support the sentencing court’s findings under * * * [R.C.

2929.14(C)(4)].” State v. Dixson, 3d Dist. Seneca No. 13-13-53, 2014-Ohio-4539,

¶ 51, citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, ¶ 28-29. Clear

and convincing evidence is that “‘which will produce in the mind of the trier of facts

a firm belief or conviction as to the facts sought to be established.’” Marcum at ¶

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

syllabus.

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{¶18} R.C. 2929.14(C)(4), which governs the imposition of consecutive

sentences, 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

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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.

The trial court must state the required findings at the sentencing hearing prior to

imposing consecutive sentences and incorporate those findings into its sentencing

entry. State v. Sharp, 3d Dist. Putnam No. 12-13-01, 2014-Ohio-4140, ¶ 50, citing

Bonnell at ¶ 29. A trial court “has no obligation to state reasons to support its

findings” and is not “required to give a talismanic incantation of the words of the

statute, provided that the necessary findings can be found in the record and are

incorporated into the sentencing entry.” Bonnell at ¶ 37.

{¶19} Vanausdal does not argue that the trial court failed to make the

necessary findings before imposing consecutive sentences. Indeed, the trial court

made the required findings at the sentencing hearing and incorporated those findings

into its judgment entry of sentence. Namely, the trial court found: that consecutive

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

Vanausdal; that consecutive sentences are not disproportionate to the seriousness of

Vanausdal’s conduct and to the danger Vanausdal poses to the public; and that at

least two of the multiple offenses were committed as part of one or more courses of

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conduct and that the harm caused by two or more of the multiple offenses was so

great or unusual that no single prison term for any of the offenses committed as part

of the course of conduct adequately reflect the seriousness of Vanausdal’s conduct.

(Mar. 15, 2016 Tr. at 29-30). The trial court incorporated those findings into its

judgment entry of sentence. (Doc. No. 23).

{¶20} Vanausdal argues that the record does not support the trial court’s

findings under R.C. 2929.14(C)(4). Specifically, Vanausdal argues that “there is no

evidence to support a finding that consecutive sentences were necessary to protect

the public” because he “had one prior misdemeanor conviction,” “was 46 years old,”

and “was not a threat to the public.” (Appellant’s Brief at 9). He also argues, “[T]he

relationship [Vanausdal] had with the victim, makes it very unlikely that similar

circumstances would arise again in the future.” (Id. at 10). As to the harm caused

by Vanausdal’s offenses, he argues that “the harm from both offenses was not to the

level contemplated by R.C. 2929.14(C)(4),” that “[t]his essentially was one

offense,” that “the harm was typical,” and that “[a] single prison sentence would not

have demeaned the seriousness of the offenses.” (Id.). Vanausdal is incorrect—we

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

findings under R.C. 2929.14(C)(4).

{¶21} Regarding the trial court’s finding that consecutive sentences are

necessary to protect the public, the trial court also made the alternative finding that

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consecutive sentences are necessary to punish Vanausdal. Vanausdal offers no

argument as to that alternative finding. Therefore, we need not address his argument

that the record does not support the trial court’s finding that consecutive sentences

are necessary to protect the public. See State v. Elliston, 3d Dist. Shelby No. 17-14-

18, 2014-Ohio-5628, ¶ 19.

{¶22} We next address the trial court’s finding that the harm caused by two

or more of the multiple offenses was so great or unusual that no single prison term

for any of the offenses committed as part of the course of conduct adequately reflect

the seriousness of Vanausdal’s conduct. The PSI report indicates that Vanausdal

was the victim’s stepfather and eight days away from attaining the age of 46 at the

time he committed the offenses. (PSI). The victim—who was 12 years old at the

time Vanausdal committed the offenses—told law enforcement that it was her

weekend to stay with Vanausdal and her six-year-old brother—Vanausdal’s son.

(Id.). Vanausdal and the victim tucked the six-year-old boy into bed. (Id.). They

then went to Vanausdal’s bedroom and began watching The Hunger Games. (Id.).

The victim had to watch television in Vanausdal’s bedroom because Vanausdal’s

son lost the remote control, apparently to the family-room television. (Id.).

Vanausdal began taking off the victim’s pajamas. (Id.). The victim told Vanausdal

“no” and put her pajamas back on, but Vanausdal took them off again. (Id.).

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Vanausdal then raped the victim while videorecording it. (Mar. 15, 2016 Tr. at 4-

5).

{¶23} After raping the victim, Vanausdal “gave her a drink that did not taste

like pop” and “made her tired.” (PSI). She told Vanausdal that she was going to

sleep on the couch, and Vanausdal asked her why she was leaving. (Id.). The victim

fell asleep on the family-room couch and woke up to her six-year-old brother asking

her about breakfast. (Id.). The video of the rape was uploaded onto a computer

hard drive, and, during the investigation, Vanausdal attempted to hide his computer

hard drive and the images on his computer. (Mar. 15, 2016 Tr. at 4-5).

{¶24} The victim provided an impact statement to the court, which states that

Vanausdal “was my stepdad for about eight years and he is [the victim’s brother’s]

dad.” (Mar. 15, 2016 Tr. at 24). The victim stated that Vanausdal hurt her that night

and that she remembers only “pieces of what happened, not all of it.” (Id. at 24-25).

The victim stated, “When I think about what happened, I feel mixed up, angry,

scared, worried, and broken up inside. * * * I don’t sleep that good. I have trouble

paying attention in class. I’m angry more often. I’m more aware and I don’t always

feel safe.” (Id. at 25). She said that if she could say anything straight to Vanausdal,

it would be, “I hope they lock you up for life and never let you see the moon or the

sun again.” (Id.). If not for her brother—Vanausdal’s son—she would tell

Vanausdal to “go dig a hole to crawl in it and die.” (Id.).

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{¶25} Based on this record, we cannot clearly and convincingly find that the

record does not support the sentencing court’s finding of great or unusual harm. In

fact, there is ample support in the record for the trial court’s finding. At the time of

the offenses, Vanausdal was 33 years older than the victim—nearly three times her

age. See State v. Ward, 4th Dist. Meigs No. 07CA9, 2008-Ohio-2222, ¶ 28 (noting

the age difference between the 29-year-old defendant and the 12-year-old victim

exacerbated the serious psychological harm suffered by the victim). To facilitate

the offenses, Vanausdal used his position of authority over the victim and took

advantage of her staying at his house for the weekend. See Ward at ¶ 28; State v.

Sutton, 11th Dist. Lake No. 2015-L-095, 2016-Ohio-2799, ¶ 31. See also State v.

Eager, 3d Dist. Henry No. 7-15-02, 2015-Ohio-3525, ¶ 21 (“At the time Eager

committed the conduct, he was in a position of trust and authority over his victim.”).

{¶26} Moreover, not only did Vanausdal rape the victim, he videorecorded

the rape so that he could relive it in the future. We discussed above the nature of

the separate harms caused by the rape and the videorecording. The victim’s impact

statement makes clear that she suffers ongoing psychological and emotional trauma

following the offenses that pose obstacles in her day-to-day activities, such as

sleeping and attending school. See Ward at ¶ 22, 31; State v. Bautista, 2d Dist. Clark

No. 2015-CA-74, 2016-Ohio-5436, ¶ 9-10; State v. Castle, 3d Dist. Hardin No. 6-

15-11, 2016-Ohio-993, ¶ 19. The record supports the finding that ordering

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Vanausdal to serve a single prison term for either the rape or the pandering-sexually-

oriented-material-involving-a-minor offenses would not reflect the seriousness of

his conduct, including the impact of both raping the victim and videorecording the

rape. See Bautista at ¶ 12.

{¶27} After reviewing the record, including the findings underlying the

sentence given by the trial court, we do not clearly and convincingly find that the

record does not support the sentencing court’s findings under R.C. 2929.14(C)(4).

Rather, the record adequately supports the trial court’s findings under R.C.

2929.14(C)(4).

{¶28} Vanausdal’s second assignment of error is overruled.

{¶29} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

SHAW, P.J. and WILLAMOWSKI, J., concur.

/jlr

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