State v. Bogle , 2022 Ohio 2946 ( 2022 )

[Cite as State v. Bogle, 2022-Ohio-2946.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. John W. Wise, J.
-vs-
Case No. CT2022-0005
EVA M. BOGLE
Defendant-Appellant OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Muskingum County
Court of Common Pleas, Case No.
CR2021-0501
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 22, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RONALD L. WELCH BRIAN W. BENBOW
Prosecuting Attorney Benbow Law Offices, LLC
Muskingum County, Ohio 265 Sunrise Center Drive
Zanesville, Ohio 43701
TAYLOR P. BENNINGTON
Assistant Prosecuting Attorney
Muskingum County, Ohio
27 North Fifth Street
P.O. Box 189
Zanesville, Ohio 43702-0189
Hoffman, J.
{¶1} Defendant-appellant Eva Bogle appeals the judgment entered by the
Muskingum County Common Pleas Court convicting her following her pleas of guilty to
attempted felonious assault (R.C. 2903.11(A)(1)) and assault on a peace officer (R.C.
2903.13(A)) and sentencing her to an aggregate term of incarceration of thirty-six months.
Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} At 10:30 p.m. on September 6, 2021, Appellant and her cousin were at a
Speedway station, pumping gas. Appellant’s ex-boyfriend, Howard Martin, pulled up in
his vehicle to pump gas next to them. Martin’s new girlfriend, Jessica Carnes, was in the
car with Martin.
{¶3} Appellant exited her van, approached Martin’s vehicle, and began to spray
mace through an open moon roof in his vehicle, hitting both Martin and Carnes. Martin
drove away. Appellant followed, continuing to spray mace.
{¶4} Martin and Carnes went to Carnes’s uncle’s apartment. Appellant kicked in
the door, hitting Carnes’s uncle in the head with the door. Carnes, who had been hiding
in the bathroom, came out of the bathroom to find her uncle on the floor with blood on his
face. Carnes called 911.
{¶5} Patrolman Cody Dent responded to the call, and located Appellant in her
vehicle. He attempted to place Appellant under arrest. While he was trying to get
Appellant into his police vehicle, Appellant “donkey kicked” the officer’s left knee.
{¶6} Appellant was indicted by the Muskingum County Grand Jury with
aggravated burglary, felonious assault, assault on a peace officer, and assault. Appellant
entered a plea of guilty to one count of attempted felonious assault, a third degree felony,
and assault on a peace officer, a fourth degree felony. The State entered a nolle prosequi
on the remaining charges. The case proceeded to a sentencing hearing in the Muskingum
County Common Pleas Court. The trial court sentenced Appellant to twenty-four months
incarceration for attempted felonious assault and to twelve months incarceration for
assault on a peace officer, to be served consecutively for an aggregate term of thirty-six
months incarceration.
{¶7} It is from the December 22, 2021 judgment of the trial court Appellant
prosecutes her appeal, assigning as error:
THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE
SENTENCES THAT WERE NOT SUPPORTED BY THE RECORD AND
THUS CONTRARY TO LAW.
{¶8} Appellant argues the trial court’s finding consecutive sentences were
necessary pursuant to R.C. 2929.14(C)(4) is not supported by the record.1
{¶9} We review felony sentences using the standard of review set forth in R.C.
2953.08. State v. Roberts, 5th Dist. Licking No. 2020 CA 0030, 2020-Ohio-6722, ¶13,
citing State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231. R.C.
2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence
and remand for sentencing where we clearly and convincingly find either the record does
1 Appellant argues in her brief the trial court’s imposition of maximum sentences is not supported by the
record. Her argument is not separately assigned as error as required by App. R. 16(A), and we thus may
disregard it pursuant to App. R. 12(A)(2). Further, R.C. 2929.14(A)(3)(b) provides the maximum sentence
for a third degree felony is thirty-six months, and R.C. 2929.14(A)(4) provides the maximum sentence for a
fourth degree felony is eighteen months. Therefore, Appellant did not receive the maximum sentence for
either conviction.
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(l), or the sentence is otherwise contrary to law. Id.,citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659.
{¶10} 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.
{¶11} 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. Smith, 10th Dist. Franklin No. 18AP-
525, 2019-Ohio-5199, ¶ 34, citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177,
syllabus.
{¶12} In the sentencing entry and from the bench during the sentencing hearing,
the trial court found consecutive sentences are necessary to protect the public and punish
Appellant, and consecutive sentences are not disproportionate to the seriousness of
Appellant’s conduct and the danger she poses to the public. The trial court further found
at least two of the offenses were committed as part of one or more courses of conduct,
and the harm caused by multiple offenses was so great or unusual that no single prison
term for any of the offenses committed as a part of the course of conduct adequately
reflects the seriousness of her conduct. Tr. 14; Judgment Entry, December 22, 2021. In
the written sentencing entry the trial court further found Appellant’s history of criminal
conduct demonstrated consecutive sentences were necessary to protect the public from
future crime.
{¶13} At the sentencing hearing, the trial court noted it had reviewed the
presentence investigation report, and while Appellant had no prior felonies, she had prior
misdemeanor convictions for criminal damaging and disorderly conduct, arising from an
incident in which she hit someone’s car with a baseball bat. Tr. 13. The trial judge stated
Appellant had the most incident reports from her time at the jail of any defendant he had
seen in almost twenty years on the bench. Tr. 11.
{¶14} We have reviewed the presentence investigation filed under seal in this
case. The report states Appellant took no responsibility for her actions, and did not
demonstrate sympathy for the victims involved in the case. Appellant’s prior
misdemeanor offenses involved Appellant engaging in violent acts against other people
or their property. While in the Muskingum County Jail, Appellant received a total of 267
days in lockdown for violating jail rules, fighting, and disrespecting officers. The probation
officer who prepared the report noted despite the fact Appellant had a limited criminal
record, she exemplified significant criminal attitudes and behaviors. While the record
does not demonstrate serious injury to either Officer Dent or Moore, Appellant engaged
in violent behavior toward both victims, neither of whom was involved in her earlier
outburst directed toward her ex-boyfriend and his new girlfriend. We find the trial court's
findings concerning consecutive sentencing are supported by the record.
{¶15} The assignment of error is overruled. The judgment of the Muskingum
County Common Pleas Court is affirmed.
By: Hoffman, J.
Gwin, P.J. and
Wise, John, J. concur