State v. Boyd , 2020 Ohio 4180 ( 2020 )

[Cite as State v. Boyd, 2020-Ohio-4180.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2020-01-012
: OPINION
- vs - 8/24/2020
:
JOHNANTHONY TYLER BOYD, :
Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2019-06-0876
Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government
Services Center, 315 High St., 11th Floor, Hamilton, Ohio 45011, for appellee
Michele Temmel, 6 S. Second St., #305, Hamilton, Ohio 45011, for appellant
S. POWELL, J.
{¶ 1} Appellant, Johnanthony Tyler Boyd, appeals the sentence imposed by the
Butler County Court of Common Pleas after he pled guilty to single counts of rape and
pandering sexually oriented matter involving a minor. For the reasons outlined below, we
affirm the trial court's decision.
{¶ 2} On July 2, 2019, the Butler County Grand Jury returned a 19-count indictment
Butler CA2020-01-012
against Boyd charging him with nine counts of illegal use of a minor in nudity-oriented
material or performance, nine counts of pandering sexually oriented matter involving a
minor, and one count of rape. According to the bill of particulars, the charges arose after
Boyd created photographs and video recordings of the victim, O.B., his 11-year-old niece,
depicting her breasts and vagina. The bill of particulars alleges Boyd also created,
recorded, photographed, or filmed the 11-year-old victim engaging in fellatio with him. The
bill of particulars alleges these crimes occurred on July 9, 2018 and September 25, 2018 in
Hamilton, Butler County, Ohio.
{¶ 3} On December 3, 2019, Boyd, a 20-year-old recent high school graduate,
entered a plea agreement and pled guilty to one count of pandering sexually oriented matter
involving a minor in violation of R.C. 2907.322(A)(1), a second-degree felony carrying a
maximum two to eight year prison term, and one count of rape in violation of R.C.
2907.02(A)(1)(b), a first-degree felony carrying a maximum term of 10 years to life in prison.
As provided by the state, the facts underlying these two offenses showed that Boyd did,
with knowledge of the character of the material or performance involved, record O.B., his
11-year-old niece, engaging in fellatio with him. Boyd then kept the video recording stored
on his cellphone under the name, "Image_0img_0285.mov." When asked if he admitted
the facts provided by the state were an accurate account of what happened between himself
and the victim, Boyd stated, "Yes, Your Honor."
{¶ 4} On January 7, 2020, the trial court held a sentencing hearing and sentenced
Boyd to an aggregate term of 15 years to life in prison; 10 years to life in prison for rape to
run consecutively to a five-year prison term for pandering sexually oriented matter involving
a minor. The trial court also ordered Boyd to pay court costs, designated Boyd a Tier III
sex offender, and notified Boyd that he would be subject to a mandatory five-year
postrelease control term if he was ever released from prison.
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{¶ 5} When ordering Boyd's sentences to run consecutively, the trial court noted
that there were "two distinct crimes, committed at the same time, but with two different
mindsets for two different purposes, seeking two sets of gratifications of some sort, I
suppose." After some discussion with the parties, the trial court then stated:
So that's the lay of the land as to where we are. So we've got
two separate crimes. We've got the possibility [that they were]
conducted with two separate mindsets, two separate goals, two
separate sets of criminal intent: one, for the immediate sexual
gratification that the sex act itself gives one; and the second
one, for some kind of lingering enjoyment that one might have
for himself and/or that one might get by displaying these [videos
he recorded of the victim engaging in fellatio with him] to other
people. Some people enjoy doing that. They find enjoyment in
it.
{¶ 6} The trial court then stated that it needed to determine whether the "second
phase of that enjoyment," i.e., the "lingering enjoyment" that Boyd may have had in
continuing "to view himself, this degradation of his niece," "keeping that," and having the
ability "to look at [it]," as well as the possibility of "sharing it with buddies," saying, "look,
look what I got her to do," was worth its own prison sentence. Finding that "second phase
of that enjoyment" did require its own, separate prison sentence, the trial court stated:
I think that just saying, well, the videoing of this, keeping the
video, you know, me looking at it, getting my jollies later on,
showing it to my buddies, or whatever, whatever he was going
to do, to say that just kind of goes away, I think would demean
the seriousness of the conduct. So I do believe that, based
upon that, that I do need to give consecutive sentences.
{¶ 7} Concluding, the trial court then made the necessary consecutive sentence
findings required by R.C. 2929.14(C)(4). Specifically, as the trial court stated:
And as I have given you consecutive sentences, there is a
finding to make. I do find that consecutive sentences are
necessary to protect the public from future crime and also
necessary to punish the offender adequately, and they are not
disproportionate to the seriousness of the offender's conduct
and to the danger the offender poses to the public.
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And I also make the additional finding that the harm – and I've
tried to distinguish the two different acts that constitutes these
two crimes. I do make the additional finding that the harm with
these two things together is so great or unusual that a single
term does not adequately reflect its seriousness, and also that
it does not adequately reflect the Defendant's conduct.
The trial court then incorporated its consecutive sentence findings within its judgment of
conviction entry.
{¶ 8} Boyd now appeals the trial court's sentencing decision, raising the following
single assignment of error for review.
{¶ 9} THE TRIAL COURT ERRED TO THE PREJUDICE OF MR. BOYD WHEN IT
SENTENCED HIM TO CONSECUTIVE SENTENCES IN THE OHIO DEPARTMENT OF
REHABILITATION AND CORRECTIONS.
{¶ 10} In his single assignment of error, Boyd argues the trial court erred by ordering
his 10-years-to-life prison sentence for rape to run consecutively to his five-year prison
sentence for pandering sexually oriented matter involving a minor. We disagree.
{¶ 11} "[A]n appellate court does not review the sentencing court's decision for an
abuse of discretion." State v. Scott, 12th Dist. Clermont Nos. CA2019-07-051 and CA2019-
07-052, 2020-Ohio-3230, ¶ 54, citing State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-
1002, ¶ 10. Rather, as this court first stated in State v. Crawford, 12th Dist. Clermont No.
CA2012-12-088, 2013-Ohio-3315, the standard of review set forth in R.C. 2953.08(G)(2)
shall govern all felony sentences. Id. at ¶ 6. Pursuant to that statute, this 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,"
if this court clearly and convincingly finds either of the following:
(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;
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(b) That the sentence is otherwise contrary to law.
{¶ 12} "R.C. 2953.08(G)(2) is unambiguous and definite." Marcum at ¶ 9. "R.C.
2953.08(G)(2)(a) does not authorize an appellate court to review any and all findings of the
trial court made during sentencing." (Emphasis sic.) State v. Sallis, 12th Dist. Clermont
No. CA2019-12-092, 2020-Ohio-3924, ¶ 6. Rather, "and according to the plain language
of the statue, the only findings this court has authority to review are those the trial court
makes specific to R.C. 2929.13(B) or (D), R.C. 2929.14(B)(2)(e) or (C)(4), or R.C.
2929.20(I)." Id. at ¶ 7. Therefore, "because R.C. 2953.08(G)(2)(a) specifically mentions a
sentencing judge's findings made under R.C. 2929.14(C)(4) as falling within a court of
appeals' review, the General Assembly plainly intended R.C. 2953.08(G)(2)(a) to be the
exclusive means of appellate review of consecutive sentences." State v. Gwynne, 158 Ohio
St.3d 279, 2019-Ohio-4761, ¶ 284. This is because "an appellate court has only the
authority to review sentences in the manner proscribed by statute." Sallis at ¶ 12, citing
State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658.
{¶ 13} Pursuant to R.C. 2929.14(C)(4), a trial court must engage in a three-step
analysis and make certain findings before imposing consecutive sentences. State v. Blair,
12th Dist. Butler No. CA2014-01-023, 2015-Ohio-818, ¶ 52. First, the trial court must find
a consecutive sentence is necessary to protect the public from future crime or to punish the
offender. State v. Dillon, 12th Dist. Madison No. CA2012-06-012, 2013-Ohio-335, ¶ 9.
Second, the trial court must find that consecutive sentences are not disproportionate to the
seriousness of the offender's conduct and to the danger the offender poses to the public.
State v. Heard, 12th Dist. Butler Nos. CA2014-02-024, CA2014-02-025, and CA2014-05-
118, 2014-Ohio-5394, ¶ 10. Third, the trial court must find that at least one of the three
circumstances listed in R.C. 2929.14(C)(4)(a) thru (c) applies. State v. Liming, 12th Dist.
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Clermont Nos. CA2018-05-028 and CA2018-05-029, 2019-Ohio-82, ¶ 25. Those three
circumstances are:
(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.
{¶ 14} Boyd argues it was improper for the trial court to run his sentences
consecutively because: (1) there is "nothing on the record that would indicate Mr. Boyd
would even commit future crime(s);" (2) he has a "very limited record;" (3) he is a recent
high school graduate, "a hard worker and a volunteer" at a local food pantry; and (4) he led
a "fairly crime free life" prior to these charges being brought. Boyd also argues that it was
improper for the trial court to run his sentences consecutively because the "offenses
happened on the same day with the same victim." Therefore, according to Boyd, because
"[a] single sentence of life in prison without the possibility of parole for ten years does reflect
the seriousness of the crime," a sentence of 10-years-to-life in prison "is more than an
adequate punishment for a young man with hardly any record."
{¶ 15} Despite Boyd's claims, we find the record contains extensive evidence to
support the trial court's consecutive sentence findings made under R.C. 2929.14(C)(4). As
noted above, Boyd victimized his 11-year-old niece by video recording her engaging in
fellatio with him. Boyd then kept and stored the video recording of him sexually abusing his
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niece on his cellphone. Although the child was just 11 years old, the record indicates that
Boyd was the second member of the victim's family to have sexually abused her, a fact that
Boyd knew at the time he made the video recording. The record also indicates that Boyd
lied to investigators when initially confronted with the allegations against him. This
significantly downplays Boyd's claims he made at sentencing alleging he had done a
considerable job in "trying to take responsibility" and "own what he did" following his arrest.
The record further indicates Boyd had a criminal history, although limited, stemming from
when he was a juvenile.
{¶ 16} "[A]s long as the reviewing court can discern that the trial court engaged in
the correct analysis and can determine that the record contains evidence to support the
findings, consecutive sentences should be upheld." State v. Bonnell, 140 Ohio St.3d 209,
2014-Ohio-3177, ¶ 29. Such is the case here. Therefore, while it may be true that Boyd
pled guilty and was ultimately sentenced for acts that were committed on the same day and
against the same victim, we nevertheless find the record fully supports the trial court's
consecutive sentence findings under R.C. 2929.14(C)(4). This remains true even though
the record indicates the likelihood of recidivism is low. Accordingly, finding no error in the
trial court's decision ordering Boyd's 10-years-to-life prison sentence for rape to run
consecutively to his five-year prison sentence for pandering sexually oriented matter
involving a minor, Boyd's single assignment of error lacks merit and is overruled.
{¶ 17} Judgment affirmed.
M. POWELL, P.J., and PIPER, J., concur.
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