State v. Glover , 2023 Ohio 1153 ( 2023 )

[Cite as State v. Glover, 2023-Ohio-1153.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-220088
TRIAL NO. B-2003890
Plaintiff-Appellee, :
vs. : O P I N I O N.
TOMMY GLOVER, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part and Reversed in Part, and Cause
Remanded
Date of Judgment Entry on Appeal: April 7, 2023
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Arenstein & Gallagher and Elizabeth Conklin, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
BOCK, Judge.
{¶1} Tommy Glover appeals his convictions for six counts of aggravated
robbery and five counts of kidnapping, all with firearm specifications, for robbing and
kidnapping five different individuals at gunpoint. Raising six assignments of error,
Glover challenges the trial court’s ruling that the photo lineup was not unduly
suggestive, admission of a videotape of him holding a gun and smoking marijuana,
and the in-court identifications of Glover. He further argues that the convictions were
based on insufficient evidence and against the manifest weight of the evidence. Finally,
he contends that the record does not support the sentences imposed by the trial court.
For the following reasons, we affirm the trial court’s judgment in part, reverse the
judgment in part, and remand the cause to the trial court.
I. FACTS AND PROCEDURE
{¶2} The state indicted Glover for a string of alleged robberies and
kidnappings. It accused Glover of forcing Andrew Schuur to drive to various ATMs and
withdraw cash on two occasions; robbing Janet McNamara of cash at gunpoint in her
car and forcing her to drive for ten minutes; robbing Robert Matanguihan at gunpoint,
taking his phone and car; and forcing Maya Bolander and Jacob Moretine, at gunpoint,
to drive to ATMs and stealing $800 from Moretine’s bank account.
A. Pretrial Motions
{¶3} Glover moved to suppress a photo lineup identification made by
McNamara, alleging that the lineup was unduly suggestive because her identification
was based on having seen Glover’s photo on the news following his arrest. Glover also
filed a motion in limine to prohibit the state from showing the jury a video from
Glover’s cell phone of Glover holding a gun while smoking marijuana.
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{¶4} McNamara was the sole witness at the hearing. She testified that she
first met with police at the St. Bernard police station immediately after she was
kidnapped and robbed. McNamara described the robber as a black male, wearing a
maroon T-shirt, black shorts, and white gym shoes. She had a very good look at him—
he was not wearing a mask and sat next to her in the passenger seat of her car for five
to ten minutes. At that time, McNamara told the police that she was scared to death
and just wanted to leave the station. A few months later, McNamara learned from a
patient that a news piece discussed police arresting a suspect who had committed
crimes similar to her experience. She called the police and agreed to view a photo
lineup in August 2020. After viewing the lineup, McNamara identified Glover as the
person who had robbed her.
{¶5} At the hearing, McNamara testified that she had never seen Glover’s
photo before the lineup and had not seen his photo on the news. When she initially
saw his photo, she was afraid because she knew it was him. McNamara confirmed that
an officer noted in the lineup page that McNamara was “visibly stressed, scared, and
worried about stating 100% certainty.” McNamara wrote that she was “100% certain
that he is the one.” The trial court overruled Glover’s motion to suppress.
{¶6} Turning to the motion in limine, Glover sought to prohibit the state from
playing a video from his phone of Glover wearing a black jacket with a reflective stripe
on the arm, smoking marijuana, and holding a gun. Glover argued the video was more
prejudicial than probative. In response, the state maintained that the cell phone video
linked Glover to the Schuur robbery and submitted still photos from an ATM video of
the robbery. In the photos, Schuur’s assailant is seen wearing a jacket that appeared
to match the jacket from Glover’s video. Ultimately, the court determined that the
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probative value of identifying Glover “in a very distinctive jacket” outweighed any
prejudice and overruled the motion in limine.
B. The Bench Trial
1) Schuur Robberies
{¶7} At the bench trial, Schuur testified that he was robbed on two separate
occasions. Schuur recalled that in May 2020, he was walking in his neighborhood
when two men asked him for directions. Schuur identified Glover as one of the men.
According to Schuur, Glover held him at gunpoint while the other man stole his wallet.
Schuur described being forced into the driver’s seat of his car and Glover instructing
him to drive to three different ATMs, where Schuur withdrew $500, $500, and $300.
Glover told Schuur to drive across town and fled at a stop sign. Based on his 45-minute
encounter, Schuur described Glover as a heavy-set black male with short hair and
facial hair, dressed in a hooded sweatshirt and jacket.
{¶8} Then, about a month later, Schuur was walking to his car when a man
wearing a black mask and a green shirt approached him with a gun. Schuur believed it
was the same man from the May robbery, recognizing his voice and body-type. Again,
Schuur was forced to drive to ATMs and withdrew $500, $500, and $300. Schuur was
with Glover for 20-25 minutes.
{¶9} In July 2020, police showed Schuur a lineup but he could not positively
identify anyone as his assailant, despite a slight resemblance in two photographs. In
August 2020, police showed Schuur another lineup. This time, he was 90 percent
certain that Glover was the perpetrator. The second photograph resembled his
assailant, but Schuur was only 30 percent confident in his identification. While two
other photos resembled his kidnapper, he was only 50 percent confident in those
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OHIO FIRST DISTRICT COURT OF APPEALS
identifications. Schuur wrote, “There was one that I’m almost certain is the guy, and
others I am not so certain about.” But in court, Schuur identified Glover with 100
percent certainty.
{¶10} Detective Keith Ingram of the St. Bernard Police Department testified
that, as the primary investigator, he retrieved video and still photographs from a PNC
Bank ATM where Schuur was robbed. In the photos and video, Schuur can be seen
withdrawing money as he stood next to a man with a black-hooded sweatshirt with
reflective embossing on the sleeves.
{¶11} In his investigation, Ingram learned that Glover was arrested in August
for robberies in Norwood, Ohio. Police recovered three cell phones from Glover. After
forensic testing, cell phone location data (“pings”) placed Glover in the area of both
Schuur robberies. Indeed, the pings showed Glover walking the location in St. Bernard
where Schuur was kidnapped in May and placed Glover in the area where Schuur
dropped off the robber in June. The police also recovered a small bag and a video from
Glover’s phone. The video showed Glover wearing the same sweatshirt depicted in the
ATM photos. Over objection, the state played the video.
2) McNamara Robbery
{¶12} McNamara testified that in June 2020, when she left work and got into
her car, two men approached her car and opened her passenger-side doors. She
recalled a heavy-set black man with short black hair and facial hair getting into the
front seat and demanding money at gunpoint.1 McNamara testified that she “will never
forget his face.” As he rifled through her purse, McNamara begged for her life. He took
$10-$15 from her wallet and demanded she drive to an ATM, despite McNamara
1 McNamara testified that the second man never entered her car.
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telling him there was no money in her account. After ten minutes, he fled.
{¶13} Immediately afterwards, McNamara, now terrified, met with the St.
Bernard police but, in her frightened state, she was not able to identify the man who
robbed and kidnapped her. In August, she returned to view a photo lineup and
identified Glover with 100 percent certainty. McNamara also identified Glover in court
as her robber.
{¶14} Detective Ingram testified that a St. Bernard police related-incidents
document described a July phone call from McNamara where she informed police that
she recognized the man who robbed her from a Channel 12 news report.
3) Norwood Robberies
{¶15} Robert Matanguihan testified that he was accosted near his car in
Norwood by two men. According to Matanguihan, one of the two men was heavy-set
and appeared to give orders to the younger, skinnier man. Both had guns and
threatened to shoot Matanguihan. They demanded money, his phone, his car keys, and
his bank card. After learning that Matanguihan had no money and his bank account
was overdrawn, they stole his Chevy Aveo, which was eventually recovered a block
from his home with no damage to the car and nothing missing. The encounter lasted
roughly three minutes. Matanguihan was unable to identify the perpetrators from a
photo lineup or in court.
{¶16} Shortly after Matanguihan’s car was stolen, Jacob Moretine and Maya
Bolander were parked outside of Moretine’s house when two men emerged and
approached their car. One man wore a facemask with clown print and carried a bag.
The other man was thinner.
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{¶17} The men forced Moretine and Bolander, at gunpoint, into Moretine’s
car and forced Moretine to drive. Moretine recalled Glover tossing a cell phone out of
the car window during the drive. According to Moretine, Glover and his partner were
laughing about robbing another man of his cell phone near Moretine’s house.
{¶18} Over the course of two hours, the men forced Moretine to drive to three
ATMs. Glover accompanied Moretine to the first two ATMs while Glover’s partner held
Bolander at gunpoint. While Glover was able to withdraw money from Moretine’s
account at the first two ATMs, he was unable to withdraw money from Bolander’s
account at the third. Glover demanded that Moretine drive to Avondale, where Glover
and his partner took Bolander’s and Moretine’s cell phones and fled.
{¶19} Moretine and Bolander provided to police descriptions of the
perpetrators, which matched Matanguihan’s. In particular, Moretine described the
perpetrator as a heavy-set man with spiderwebs tattooed on his hands, wearing a face
mask decorated with clown print. Moretine confirmed that a photo of Glover’s hands
depicted the tattoos he saw.
{¶20} Moretine and Bolander were unable to positively identify anyone from
a photo lineup. While Moreline was not 95 percent certain, Moretine did recognize
Glover from his photo. But in court, Moretine identified Glover as the perpetrator with
100 percent certainty. And when shown a photo lineup, Bolander identified another
man as the perpetrator with 90 percent confidence. But in court, she identified Glover
as the gunman.
4) The Norwood Investigation
{¶21} Sergeant Matt Klingelhoffer from the Norwood Police Department was
assigned to investigate the robberies. He reached out to Detective Ingram after
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learning about the St. Bernard robberies. In each case, the suspect descriptions were
similar.
{¶22} Two of the banks where Moretine had been forced to stop provided
Klingelhoffer photos from their ATMs. The photos showed the suspect wearing a clown
face mask and a blue hoodie, with a black Nike bag worn across his chest.
{¶23} A little more than a month later, in August 2020, a Norwood resident
had reported that she and her husband became uncomfortable after seeing a man
wearing a face mask and a Nike bag slowly walking down Williams Avenue. Officers
dispatched to the scene found Glover nearby. When the officers asked to speak with
Glover, he briefly fled before being taken into custody. They released him at the scene.
{¶24} After comparing the body-camera footage from August 2020 with the
ATM photos, Klingelhoffer concluded that Glover was the person in the ATM photos.
{¶25} Officer Robert Wilsman of the Cincinnati Police Department testified
that he responded to a report of a possible robbery suspect walking down Reading
Road in August 2020. When Wilsman spotted Glover and exited from his car, Glover
fled before he was ultimately arrested. The state played Wilsman’s body-camera
footage in court, which showed Glover wearing the Nike bag.
{¶26} While in jail, Glover made phone calls. In one, Glover asked the other
person on the line, “Do they have my face on there?”
5) Glover’s testimony
{¶27} Glover testified that he did not commit any of the crimes. Glover
admitted that the person in the ATM photo had a Nike bag similar to his and wore it
in a similar fashion, but denied that was him. Glover also admitted that he owned a
black hooded sweatshirt with metallic stripes. He agreed that his sweatshirt was the
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same brand as the one in the photo, and that they looked similar, but pointed out a red
liner on the inside of the hoodie in the photograph. Finally, Glover testified that each
in-court identification was a lie.
6) The Verdicts and Sentences
{¶28} The trial court found Glover guilty of six counts of aggravated robbery
in violation of R.C. 2911.01(A)(1), and five counts of kidnapping in violation of R.C.
2905.01(A)(2), with each count carrying two penalty-enhancing gun specifications.
The court found that the same person committed the offenses due to the similar modus
operandi, methodology, physical descriptions, location proximity, and attempt to get
money from ATMs.
{¶29} Beginning with the Schuur robberies, Schuur identified Glover with 90
percent certainty when shown a photo lineup, his in-court identification was credible,
and the perpetrator’s jacket in the ATM photo matched the jacket worn by Glover in
his cell-phone video. Turning to the McNamara robbery, her identification of Glover
was believable and credible. The offenses occurred in the same area as the offenses
against Schuur with the same modus operandi. While Matanguihan could not identify
Glover, his car and phone were stolen, and his car was immediately discarded one
street away from the location where Glover encountered Bolander and Moretine. And
Bolander’s and Moretine’s in-court identifications and testimonies were credible. Plus,
the ATM photos clearly depicted Glover. Glover was also identifiable by the Nike bag
and tattoos. In addition, the trial court cited Glover’s attempt to flee from the police
and jail call admission.
{¶30} During the mitigation portion of the sentencing hearing, Glover
requested an aggregate 12-to-15-year sentence, citing the lack of physical harm to the
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OHIO FIRST DISTRICT COURT OF APPEALS
victims and his lack of prior felony convictions. Based on the victims’ and officers’
wishes, the state recommended a 20-to-25-year sentence. The presentence-
investigation report stated that Glover was adjudicated delinquent as a juvenile for
Toledo’s Safe School Ordinance, but did not include any facts underlying that
adjudication. See Toledo Municipal Code 537.16.
{¶31} The trial court found that consecutive sentences were necessary to
protect the public and punish the offender and not disproportionate to the conduct.
The court further found that the harm caused by two or more of the offenses was so
great or unusual that no single prison term adequately reflected the seriousness of
Glover’s conduct. Finally, the court found that the offenses were committed as part of
a course of conduct, and Glover’s criminal history, which “shows violence in school,”
demonstrated that consecutive sentences were necessary to protect the public.
{¶32} The trial court sentenced Glover to seven years on each underlying
felony and three years on each gun specification, with each specification to be served
consecutively and before the sentences imposed on the underlying offenses. The
sentences for the aggravated robbery counts were to be served consecutively to each
other and the kidnapping sentences were to be served concurrently to each other and
the other sentences, for an aggregate term of 60 years’ incarceration.
II. LAW AND ANALYSIS
A. McNamara’s lineup identification was admissible
{¶33} In his first assignment of error, Glover contends that the trial court
violated his due-process rights by denying his motion to suppress McNamara’s
identification.
{¶34} Appellate review of a motion to suppress presents a mixed question of
law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71,
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¶ 8. An appellate court must accept the trial court’s findings of fact if they are
supported by some competent, credible evidence. Id. Accepting those facts as true, the
appellate court must then independently determine, without deference to the trial
court’s judgment, whether the facts satisfy the applicable legal standard. Id.{¶35} “Due process requires suppression of pre-trial identification of a
suspect only if the identification procedure was so impermissibly suggestive as to give
rise to a very substantial likelihood of misidentification.” Neil v. Biggers, 409 U.S. 188,
196-197, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).
{¶36} The defendant must demonstrate that the lineup was unduly suggestive.
“A lineup is unduly suggestive if it steers the witness to one suspect, independent of
the witness’s honest recollection.” (Citations omitted.) State v. Adams, 144 Ohio St.3d
429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 208. “When the questionable circumstances of
an identification procedure are not due to state action, the reliability of the
identification is a question going to the weight of the testimony, not its admissibility.”
Id. at ¶ 209.
{¶37} Glover argues that McNamara’s identification was tainted because she
saw his mugshot on the news. To support this assertion, Glover relies on the police
report written by an unnamed St. Bernard police officer. The report memorialized a
phone call from McNamara to the St. Bernard police in which, according to the report,
she stated that she saw the person who had robbed her on a Channel 12 news story.
{¶38} But McNamara testified at the suppression hearing that she had not
seen any news reports about Glover. Instead, McNamara testified that one of her
patients had seen a news report and informed her that the police had arrested someone
for committing crimes similar to the crime committed against her.
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{¶39} Glover makes no showing that the state employed an unduly suggestive
procedure. Because the lineup was not unduly suggestive, it was admissible. The
identification’s reliability was an issue for the trier of fact to decide. See State v.
Savage, 1st Dist. Hamilton No. C-180413, 2019-Ohio-4859, ¶ 36. We overrule Glover’s
first assignment of error.
B. The trial court properly admitted the video of Glover
{¶40} Glover’s second assignment of error asserts that the trial court erred in
admitting video evidence of him holding a gun and smoking marijuana.
{¶41} Evid.R. 404(B)(1) prohibits evidence of a defendant’s other acts when
its only purpose is to show the defendant’s propensity or character to commit crimes.
Evid.R. 404(B)(2) allows evidence of the defendant’s other crimes, wrongs, or acts to
be admitted for other purposes, “such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of accident..” The
admissibility of other-acts evidence is a question of law that this court reviews de novo.
State v. Hartman, 161 Ohio St.3d 214, 2020-Ohio-4440, 161 N.E.3d 651, ¶ 22. But we
review the trial court’s weighing of the probative value of admissible evidence against
the danger of unfair prejudice to the defendant for an abuse of discretion. Id. at ¶ 30.
{¶42} To determine whether other-acts evidence is admissible, the first step is
to determine whether the evidence is relevant to the particular purpose for which it is
offered and whether it is relevant to an issue in dispute. Id. at ¶ 26-27. If the evidence
passes the relevancy test, the final step is to consider whether the value of the evidence
“is substantially outweighed by the danger of unfair prejudice, of confusion of the
issues, or of misleading the jury.” Id. at ¶ 29.
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{¶43} The state sought to admit the video from Glover’s phone to establish the
identity of the person who kidnapped and robbed Schuur. The perpetrator’s identity
was a material issue in this case and the video depicted Glover wearing a distinctive
jacket that appeared to match the jacket worn by the individual who kidnapped and
robbed Schuur. Thus, the evidence was relevant to identity, the particular purpose for
which it was offered.
{¶44} Next, this court must determine whether the evidence’s probative value
was substantially outweighed by the danger of unfair prejudice under Evid.R. 403(A).
Probative evidence is subject to exclusion where the evidence “might result in an
improper basis for a jury decision,” such as where “the evidence arouses the jury’s
emotional sympathies, evokes a sense of horror, or appeals to an instinct to punish[.]”
State v. Worley, 164 Ohio St.3d 589, 2021-Ohio-2207, 174 N.E.3d 754, ¶ 125. But
because this was a bench trial, “we presume that the court considered only ‘relevant,
material and competent evidence’ unless the record affirmatively discloses otherwise.”
State v. Pennington, 1st Dist. Hamilton Nos. C-170199 and C-170200, 2018-Ohio-
3640, ¶ 46, quoting State v. Post, 32 Ohio St.3d 380, 384, 513 N.E.2d 754 (1987).
{¶45} Before admitting the video, the trial court acknowledged the prejudicial
effect of the gun but found that “the identifying features of the jacket outweighs the
prejudice.” We presume that the trial court did not consider improper evidence in
reaching its verdict. State v. Arnold, 147 Ohio St.3d 138, 2016-Ohio-1595, 62 N.E.3d
153, ¶ 39. The record contains no evidence that the trial court improperly considered
the gun or the marijuana in reaching its verdict. Therefore, we overrule Glover’s
second assignment of error.
C. Witnesses’ in-court identifications were not unduly suggestive
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{¶46} Glover’s third assignment of error asserts that the victims’ in-court
identifications were unduly suggestive and unreliable because the identifications were
influenced by the fact that he was the only heavy-set black man wearing a jail jumpsuit
in the courtroom when the identifications were made. Glover further contends that the
admission of the identifications was plain error that affected the outcome of the trial
and resulted in a manifest miscarriage of justice.
{¶47} Glover acknowledges that he did not object to the in-court
identifications and that his claim is subject to a plain-error review. To prevail on a
plain-error claim, an accused must show that an error occurred, that the error was
plain, and that the error affected the outcome of the trial. See Crim.R. 52(B). A
reviewing court should employ the “utmost caution” and find plain error only “under
exceptional circumstances and only to prevent a miscarriage of justice.” State v. Long,
53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.
{¶48} “An identification derived from unnecessarily suggestive procedures,
which have a likelihood of leading to a misidentification, violates a defendant’s right
to due process.” Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).
Whether the Due Process Clause requires a trial court to suppress an eyewitness
identification involves a two-step inquiry. State v. Stidhum, 1st Dist. Hamilton No. C-
170319, 2018-Ohio-4616, ¶ 36 (finding that a witness’s in-court identification was
admissible). First, the defendant must establish that the identification procedure used
by the state was “both suggestive and unnecessary.” Id. If there is no showing that the
state employed an unnecessarily suggestive procedure to obtain the identification,
then the unreliability of the identification alone will not preclude its admission at trial.
Id. at ¶ 38. “Instead, such unreliability should be exposed through the rigors of cross-
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examination at trial and the protections built into the adversary system, such as the
right to the effective assistance of counsel, the right to confront the witness, and the
rules of evidence.” Id. “Therefore, in-court identifications, where there has been no
prior unlawful or unnecessarily suggestive police conduct, are properly admitted.”
State v. Berry, 10th Dist. Franklin No. 18AP-9, 2019-Ohio-3902, ¶ 25.
{¶49} To the extent that Glover argues that when identity is an issue in a case,
in-court identifications are inherently suggestive and unreliable, he cites to no
controlling legal authority to support this contention. Moreover, Glover made no
showing that the procedure employed by the state was unduly suggestive.
{¶50} Glover has not shown that the trial court’s admission of the witnesses’
in-court identifications amounted to error, much less plain error. As such, any
unreliability of the in-court identifications was an issue of weight, not admissibility.
We overrule the third assignment of error.
D. The convictions were supported by sufficient evidence and not against
the manifest weight of the evidence
{¶51} In his fourth and fifth assignments of error, which he argues together,
Glover contends that his convictions were based on insufficient evidence and contrary
to the manifest weight of the evidence.
{¶52} A challenge to the sufficiency of the evidence presents this court with a
question of law that we review de novo. State v. Dent, 163 Ohio St.3d 390, 2020-Ohio-
6670, 170 N.E.3d 816, ¶ 15, quoting State v. Thompkins, 78 Ohio St.3d 380, 386, 678
N.E.2d 541 (1997). The test for determining the sufficiency of the evidence is whether
“after viewing the probative evidence and inferences reasonably drawn therefrom in
the light most favorable to the prosecution, any rational trier of fact could have found
all the essential elements of the offense beyond a reasonable doubt.” State v.
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MacDonald, 1st Dist. Hamilton No. C-180310, 2019-Ohio-3595, ¶ 12, quoting State v.
Martin, 20 Ohio App.3d 172, 485 N.E.2d 717 (1st Dist.1983).
{¶53} In reviewing a weight-of-the-evidence claim, we review “ ‘the entire
record, weigh the evidence and all reasonable inferences, consider the credibility of
the witnesses and determine whether, in resolving conflicts in the evidence, the [trier
of fact] clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered.’ ” State v. Bailey, 1st Dist.
Hamilton No. C-140129, 2015-Ohio-2997, ¶ 59, quoting State v. Thompkins, 78 Ohio
St.3d 380, 678 N.E.2d 541 (1997). “This court will not substitute its judgment for that
of the trier of fact on the issue of witness credibility unless it is patently apparent that
the trier of fact lost its way in arriving at its verdict.” Bailey at ¶ 63.
{¶54} Glover challenges the reliability of his identification as the perpetrator
because the clothing identified by the victims was different in each offense, the
locations were different, the number of perpetrators and their locations in the cars
were different, the face coverings were different, the presence of tattoos was different,
the identifications were inconsistent or wrong, the ATM photos and video were blurry,
and there was no fingerprint or DNA evidence that connected Glover to the crimes.
{¶55} Glover generally challenges the state’s proof, citing the lack of physical
evidence such as fingerprints or DNA test results. But the state is not required to
present physical evidence to meet its burden of proof. See State v. Jeffries, 2018-Ohio-
2160, 112 N.E.3d 417, ¶ 72 (1st Dist.) (concluding that “the state is not required to
present corroborating DNA test results or other corroborating physical evidence to
meet its burden of proof, even in a rape case.”); State v. Nix, 1st Dist. Hamilton No. C-
030696, 2004-Ohio-5502, ¶ 67 (finding that the record contained more than sufficient
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evidence in the form of witness testimony to sustain the charges against the
defendant).
{¶56} We find that the state’s evidence sufficiently supported the convictions.
Two witnesses identified Glover before trial. Two other witnesses identified Glover at
trial. The fifth victim could not identify Glover, but his car was recovered near where
the next two victims were robbed and kidnapped. The modus operandi of the crimes
was similar, as were the descriptions of the perpetrators. This evidence was sufficient
to support Glover’s convictions.
{¶57} Glover further argues that the trial court erred in weighing the evidence,
clearly lost its way, and created a manifest miscarriage of justice because the witness
identifications were unreliable. “It is well settled that the responsibility of weighing
the credibility of a witness rests with the fact-finder.” Johnson v. Abdullah, 166 Ohio
St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463, ¶ 6.
{¶58} The trial court, as the finder of fact, was entitled to believe all, some, or
none of the witnesses’ testimony. State v. Simmons, 2017-Ohio-1348, 88 N.E.3d 651,
¶ 35 (10th Dist.). The trial court heard the testimony and found the witnesses’
testimony to be credible. There is nothing in the record to suggest that the trial court
clearly lost its way and created such a manifest miscarriage of justice as to warrant
reversal. This is not one of those rare, exceptional cases in which the evidence weighs
heavily against conviction. Accordingly, we overrule the fourth and fifth assignments
of error.
E. The record does not support six consecutive sentences
{¶59} In his sixth assignment of error, Glover, who was 23 years old at the
time of sentencing, asserts that the record does not support the trial court’s imposition
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of consecutive sentences, for an aggregate sentence of 60 years, which is tantamount
to a life sentence.
{¶60} Before trial, the state offered Glover a 15-year prison term in exchange
for a guilty plea. Glover declined, instead choosing to exercise his constitutional right
to a jury trial. After trial, the prosecutor told the trial court, “At a minimum I do not
think that whatever sentence the Court imposes for each victim should run consecutive
with each other. These were separate incidents, separate dates.” And the state, based
on the victims’ and officers’ wishes, recommended a sentence of between 20 and 25
years.
{¶61} We agree with the state’s position at trial and with Glover. Because we
clearly and convincingly find that the record does not support the trial court’s findings
involving the proportionality of Glover’s aggregate sentence to the seriousness of his
conduct and the danger he poses to the public, we sustain Glover’s sixth assignment
of error.
1) The record must support imposition of consecutive sentences
{¶62} Ohio law contains a statutory presumption of concurrent sentences for
defendants convicted of multiple offenses. State v. Galinari, 1st Dist. Hamilton No. C-
210149, 2022-Ohio-2559, ¶ 9. “The general principle set forth in the Revised Code is
that concurrent sentences are the default and consecutive sentences are the
exception.” State v. Hitchcock, 157 Ohio St.3d 215, 2019-Ohio-3246, 134 N.E.3d 164,
¶ 21.
{¶63} “Consecutive sentences are reserved for the worst offenses and
offenders.” State v. Comer, 99 Ohio St.3d 463, 2003-Ohio-4165, 793 N.E.2d 473, ¶ 21,
18
OHIO FIRST DISTRICT COURT OF APPEALS
abrogated on other grounds, State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845
N.E.2d 470, paragraph three of the syllabus (statutorily-mandated judicial factfinding
violated defendants’ right to a jury trial).
{¶64} Because consecutive sentences are the exception and should be reserved
for the most serious offenders and offenses, the legislature requires a sentencing court
to make the mandatory sentencing findings prescribed by R.C. 2929.14(C)(4). See
Galinari at ¶ 9, citing State v. McKinney, 1st Dist. Hamilton No. C-210276, 2022-
Ohio-849, ¶ 11. A trial court must make three distinct findings: 1.) “the consecutive
service is necessary to protect the public from future crime or to punish the offender;”
2.) “consecutive sentences are not disproportionate to the seriousness of the offender’s
conduct and to the danger the offender poses to the public,” and 3.) one or more of
R.C. 2929.41(C)(4)’s subsections apply. R.C. 2929.14(C)(4).
{¶65} Relevant here, R.C. 2929.41(C)(4)’s subsections require the court to find
that either 1.) two or more offenses were committed as part of a course of conduct and
the harm caused by the offenses was so great or unusual that a single prison term
cannot adequately reflect the seriousness of the offender’s conduct; or 2.) the
offender’s criminal history demonstrates that consecutive sentences are needed to
protect the public from the defendant committing future crimes. R.C.
2929.41(C)(4)(b) and (c).
{¶66} To determine compliance with R.C. 2929.14(C)(4), we examine
whether: 1.) the trial court engaged in the correct analysis, and 2.) the record contains
evidence to support the trial court’s findings. State v. Bonnell, 140 Ohio St.3d 209,
2014-Ohio-3177, 16 N.E.3d 659, ¶ 29. The trial court must state the required findings
at the sentencing hearing and incorporate those findings into the sentencing entry. Id.19
OHIO FIRST DISTRICT COURT OF APPEALS
There is no dispute that the trial court made the requisite findings. Instead, Glover’s
argument on appeal is that the record does not support the trial court’s findings.
2) Ohio law permits appellate courts to modify imposition of consecutive
sentences that are clearly not supported by the record
{¶67} Appellate review of consecutive sentences is governed by R.C.
2953.08(G)(2). See State v. Marshall, 1st Dist. Hamilton Nos. C-190748 and C-
190758, 2021-Ohio-816, ¶ 48, citing State v. Gwynne, 158 Ohio St.3d 279, 2019-Ohio-
4761, 141 N.E.3d 169, ¶ 16.
{¶68} R.C. 2953.08(G)(2) does not permit appellate courts to weigh the
evidence and alter a sentence under R.C. 2929.11 and 2929.12. State v. Jones, 163 Ohio
St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 42. Consecutive sentences, however,
being the exception to the general rule, are treated differently.
{¶69} This court may modify or vacate a trial court’s decision to impose
consecutive sentences if we, after reviewing the record, clearly and convincingly find
that “the record does not support the sentencing court’s findings” under R.C.
2929.14(C)(4). R.C. 2953.08(G)(2)(a). Put another way, this court may vacate or
modify the trial court’s sentence only “if, upon review of the record, the court is left
with a firm belief or conviction that the findings are not supported by the evidence.”
Gwynne at ¶ 27.
{¶70} Recently, the Supreme Court of Ohio considered two questions
involving consecutive sentences: 1.) under what standard should an appellate court
review the imposition of consecutive sentences; and 2.) are courts required to
“consider the overall aggregate prison term to be imposed when making [R.C.
20
OHIO FIRST DISTRICT COURT OF APPEALS
2929.14(C)(4)] consecutive-sentence findings.” State v. Gwynne, Slip Opinion 2022-
Ohio-4607, ¶ 1.2
{¶71} Regarding the first question, the Gwynne majority held that an
appellate court should review imposition of consecutive sentences de novo. Id. The
dissent, however, noted that “ ‘[o]rdinarily, appellate courts defer to trial courts’ broad
discretion in making sentencing decisions,’ and R.C. 2953.08(G) reflects that
deference.” Id. at ¶ 52, quoting State v. Rahab, 150 Ohio St.3d 152, 2017-Ohio-1401,
80 N.E.3d 431, ¶ 10. As will be discussed in detail below, even under a deferential
standard of review, we find that the trial court’s imposition of a 60-year aggregate
sentence was error because we hold a firm belief that the record does not support the
trial court’s findings.
{¶72} Regarding whether a court must consider the aggregate sentence when
making the statutory consecutive-sentences findings, the Gwynne majority answered
affirmatively. Id. at ¶ 1. And while the dissent disagreed that a court must make
findings in considering the aggregate term, it agreed that a trial court considers the
aggregate sentence: “The only reasonable interpretation of R.C. [2929.14(C)(4)] is that
when a trial court is imposing multiple prison terms, it may order a defendant to serve
some or all of those prison terms consecutively if it makes the statutory findings
established by the legislature. * * * When a trial court orders a defendant to serve
multiple consecutive prison terms, of course it knows the amount of time that it has
sentenced the defendant to serve.” (Emphasis added.) Id. at ¶ 67, 70 (Kennedy, J.,
dissenting).
2We note that the state moved for the Supreme Court of Ohio to reconsider its decision in Gwynne.
As of the date of this decision, the court has not ruled on the state’s motion.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶73} Under the interpretations provided by both the majority and the dissent
in Gwynne, if the sentencing court makes the requisite R.C. 2929.14(C)(4) findings, it
may order some of the sentences be served consecutively or all of the sentences be
served consecutively. Thus, while the majority and dissent in Gwynne disagreed about
whether a trial court must consider the aggregate sentence, they appeared to agree
that a court can consider the aggregate sentence when determining whether to impose
consecutive sentences and if so, how many of the prison terms should be served
consecutively.
{¶74} A trial court, when imposing consecutive sentences, may look to the
aggregate sentence to determine if it is disproportionate to the offender’s criminal
history and offenses. Once a court decides to impose consecutive sentences, it need
not stack all of the sentences. Instead, if it runs sentences consecutively, it should stack
those sentences such that the sentence is proportionate to the seriousness of the
offender’s conduct and to the danger the offender poses to the public.
3) Statutory and case law demonstrate that crimes causing physical
harm receive longer sentences
{¶75} As stated above, the Ohio Supreme Court has held that “consecutive
sentences are reserved for the worst offenses and offenders.” Comer, 99 Ohio St.3d
463, 2003-Ohio-4165, 793 N.E.2d 473, at ¶ 21. And crimes that cause physical and
emotional harm, rather than only emotional harm, generally receive longer sentences.
For example, the penalty for aggravated murder under R.C. 2903.01 (“No person shall
purposely, and with prior calculation and design, cause the death of another or the
22
OHIO FIRST DISTRICT COURT OF APPEALS
unlawful termination of another’s pregnancy.”) is a minimum of life in prison to a
maximum of death. The penalty for murder under R.C. 2903.02 (“No person shall
purposely cause the death of another * * * .”) is an indefinite term of 15 years to life.
R.C. 2929.02(B)(1). Rape of a child aged ten or younger carries a maximum term of
life without parole. R.C. 2907.02. And when a defendant is convicted of a violent sex
offense with a sexually-violent-predator specification, subject to some exceptions, the
court must impose an indefinite prison term of 25 years to life. R.C.
2971.03(A)(3)(d)(1).
{¶76} Moreover, the penalties for violent crimes are enhanced when the victim
suffered serious physical injury. For example, R.C. 2921.331, which prohibits a person
from failing to comply with a lawful order of a police officer, is a misdemeanor or a
fourth-degree felony in all cases except when the offender’s behavior either
proximately caused, or carried a substantial risk of causing, serious physical harm to
persons or property. R.C. 2921.331(C). And R.C. 2919.22, which prohibits endangering
children, is a misdemeanor if the offender has not previously been convicted of an
offense involving neglect, abandonment, contributing to the delinquency of, or
physical abuse of a child. R.C. 2929.331(C)(2)(a)-(b). But the offense is enhanced for
all offenders, regardless of prior convictions, to a second- or third-degree felony if the
offense results in serious physical harm to the child. R.C. 2929.331(C)(2)(c)-(d). And
the statute prohibiting child rape is enhanced for several reasons, including if the
offender caused serious physical harm to the victim. R.C. 2907.02.
{¶77} A selection of Ohio cases in which the offender was convicted of crimes
that caused both physical and emotional harm, such as rape, sexual conduct with
minors, murder, attempted murder, and assault, shows that while courts impose
23
OHIO FIRST DISTRICT COURT OF APPEALS
lengthy sentences, many are shorter than 60 years. E.g., State v. McRae, 1st Dist.
Hamilton No. C-180669, 2020-Ohio-773, ¶ 5 (court sentenced defendant on two
counts of attempted murder of police officers, two counts for having a weapon while
under a disability, one count of carrying a concealed weapon, and assault; his
aggregate sentence was 43.5 years); State v. Patton, 1st Dist. Hamilton No. C-190694,
2021-Ohio-295, ¶ 2 (defendant convicted of two counts of murder with specifications;
aggregate sentence was 24 years to life); State v. Prescott, 8th Dist. Cuyahoga Nos.
107784 and 107789, 2019-Ohio-5114, ¶ 2 (defendant convicted of 14 counts each of
aggravated robbery and kidnapping, all with gun specifications, for eight separate
events; one victim was pistol whipped, causing serious injuries, and another victim
was punched in the face; court imposed aggregate 25-year sentence); State v
Washington, 6th Dist. Lucas No. L-19-1190, 2021-Ohio-760, ¶ 4, 10, 15 (trial court
sentenced defendant who brutally raped and assaulted two women to aggregate 28-
year sentence); State v Corey, 11th Dist. Geauga No. 2021-G-0029, 2022-Ohio-4568,
¶ 15 (defendant who shot victim four times was convicted of attempted murder,
firearm specifications, and tampering with evidence; trial court sentenced him to
aggregate term of ten-15 years); Galinari, 1st Dist. Hamilton No. C-210149, 2022-
Ohio-2559, at ¶ 2, 4 (defendant attacked a teenager and an adult with an aluminum
bat; trial court sentenced him to an aggregate 13-year term); Ohio v. Jones, 2d Dist.
Montgomery No. 28977, 2021-Ohio-3050, ¶ 1 (defendant broke into three women’s
homes, raped two of the women by gunpoint, and forced one to take fentanyl; after
jury convicted the defendant of aggravated burglary with a deadly weapon, aggravated
burglary causing physical harm, two counts of rape, two counts of kidnapping, and one
count of aggravated robbery with a deadly weapon, the court sentenced him to an
24
OHIO FIRST DISTRICT COURT OF APPEALS
aggregate term of 39 years); State v. Polizzi, 166 Ohio St.3d 1504, 2022-Ohio-1606,
187 N.E.3d 552, ¶ 36 (defendant-teacher was convicted of gross sexual imposition and
six counts of sexual battery for inappropriate relationships with his high school
students; appellate court found that 33-year sentence would demean the seriousness
of more serious crimes, such as rape and murder); State v. Consiglio, 7th Dist.
Mahoning No. 21 MA 0066, 2022-Ohio-2340, ¶ 1-2 (defendant convicted of rape,
attempted rape, aggravated robbery, robbery, theft from a person in a protected class,
and domestic violence against his 79-year-old grandmother, plus assaulting a police
officer; court merged allied offenses and sentenced him to indefinite term of 19.5 to 25
years’ incarceration); State v. Steele, 5th Dist. Delaware No. 21 CAA 11 0061, 2022-
Ohio-712, ¶ 1 (court sentenced defendant convicted by a jury of five counts of unlawful
sexual conduct with a minor, two counts of rape, and one count of gross sexual
imposition to an aggregate prison term of 22 years).
{¶78} A review of cases in which a defendant was convicted of crimes that
caused emotional trauma, but no or minimal physical harm, showed that courts often
impose significantly shorter sentences than 60 years, even when there are multiple
offenses and victims. See, e.g., State v. Pattson, 2d Dist. Montgomery Nos. 29028 and
29029, 2022-Ohio-150 (defendant who broke into a home and threatened to kill at
gunpoint the two adults and their young children, shot the family’s puppy, and forced
the woman by gunpoint to drive her vehicle to an ATM to withdraw cash, stole her car,
and left her in an alley, was convicted of aggravated burglary, two counts of aggravated
robbery, one count of kidnapping, one count of having weapons under a disability, two
counts of aggravated menacing, one count of cruelty to a companion animal, and one
count of grand theft; the trial court imposed an indefinite sentence of 12 to 15 years);
25
OHIO FIRST DISTRICT COURT OF APPEALS
State v. Cremeans, 5th Dist. Muskingum No. CT2015-0062, 2016-Ohio-7930 (a
defendant with multiple prior convictions for violent offenses received an aggregate
30-year sentence for multiple counts of aggravated burglary, kidnapping, aggravated
robbery, and having weapons under a disability after he entered the home where three
adults and four children were present, waved guns around, threatened an adult, and
tied up two children and two adults); State v. Justice, 2d Dist. Montgomery No. 23744,
2010-Ohio-6484 (defendant was found guilty of four counts of aggravated robbery,
five counts of aggravated burglary, four counts of kidnapping, and two counts of
having weapons under disability, some charges with firearm specifications; court
sentenced him to a seven-year prison term); State v. Rogers, 8th Dist. Cuyahoga No.
92380, 2009-Ohio-5490 (defendant convicted of three counts of aggravated burglary,
with one- and three-year firearm specifications, and three counts of kidnapping, with
one- and three-year firearm specifications, for taking money from four victims at
gunpoint; trial court imposed aggregate six-year prison term).
{¶79} Under this backdrop, we turn to whether, after reviewing the record, we
clearly and convincingly find that the record does not support the trial court’s findings
under R.C. 2929.14(C)(4).
4) The record clearly and convincingly does not support the trial court’s
findings under R.C. 2929.14(C)(4)
{¶80} Glover argues that his aggregate sentence is excessive and the trial
court’s R.C. 2929.14(C)(4) findings were not supported by the record. The trial court
ran consecutively Glover’s six aggravated-robbery sentences (seven years each) and
each underlying charge’s gun specification (three years each), for an aggregate 60-year
26
OHIO FIRST DISTRICT COURT OF APPEALS
sentence. The trial court told Glover that “[t]he sentence I’ve imposed is the sentence
you will serve without any good-time reduction.”
{¶81} As discussed above, a trial court, before imposing consecutive
sentences, must find all three of the R.C. 2929.14(C)(4) factors. Therefore, if a
reviewing court determines that the record clearly and convincingly does not support
any one of the three findings, it must modify the aggregate sentence.
{¶82} Here, the trial court stated that the sentences were “consecutive to each
other because one sentence is really not sufficient for the crime that you committed.”
It found that the sentence “is most appropriate to punish you for the crimes that you
did.” It noted that Glover had not taken responsibility and was not amenable to
change.
{¶83} Next, the court found that Glover had committed two or more offenses
as part of a course of conduct and the harm caused was so great or unusual that no one
term would reflect the seriousness of Glover’s conduct. It also found that Glover had a
criminal history of violence in school.
{¶84} Finally, regarding proportionality, the trial court stated, “I feel that you
do have a criminal history which shows violence in school. And I do feel that I need to
protect the public. And I do feel [it’s] necessary to protect the public, and to punish the
offender, and it is not disproportionate to the seriousness of the offender’s conduct
and danger the offender poses to the public.” The trial court discussed the fact that
Glover did not live in Hamilton County, did not appear to be supporting his children,
was unemployed, and showed no remorse.
{¶85} We hold that the trial court’s findings involving proportionality under
R.C. 2929.14(C)(4) and criminal history under R.C. 2929.14(C)(4)(c) were clearly and
27
OHIO FIRST DISTRICT COURT OF APPEALS
convincingly not supported by the record.3 While we believe that Glover’s conduct was
serious and caused his victims significant emotional trauma, his conduct does not
justify imposing consecutive sentences on all the aggravated robbery charges and
specifications, for an aggregate 60-year sentence. Imposing a sentence akin to life in
prison on a 23-year-old man, under the facts and circumstances in this case, clearly
was not supported by the record.
5) The trial court’s 60-year sentence was disproportionate to Glover’s
past conduct and offenses
{¶86} Before imposing consecutive sentences, R.C. 2929.14(C)(4) requires the
trial court to 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
* * * .”
{¶87} A proportionality analysis considers both the defendant’s current
conduct and the risk of the defendant being a danger in the future. R.C. 2929.14(C)(4).
To make that determination, the analysis “focuses upon the defendant’s current
conduct and whether this conduct, in conjunction with the defendant’s past conduct,
allows a finding that consecutive service is not disproportionate.” State v. Crim, 2d
Dist. Clark No. 2018-CA-38, 2018-Ohio-4996, ¶ 11; State v. Mathis, 6th Dist. Lucas
No. L-21-1249, 2022-Ohio-4020, ¶ 19 (same); State v. Forsell, 11th Dist. Portage Nos.
2019-P-0116, 2019-P-0117, 2019-P-0118, 2019-P-0119, 2019-P-0120, 2019-P-0121,
2019-P-0122, 2019-P-0123 and 2019-P-0124, 2020-Ohio-5381, ¶ 26 (same).
3 Because the trial court also found that Glover committed two or more offenses as part of a course
of conduct causing harm so great or unusual that a single prison term was inadequate to reflect the
seriousness of Glover’s offenses and because, as will be discussed below, proportionality findings
involve considering both past and current conduct, we will discuss the trial court’s findings
regarding Glover’s criminal history in our discussion about proportionality.
28
OHIO FIRST DISTRICT COURT OF APPEALS
a. Glover’s juvenile adjudication
{¶88} “Quite simply, a juvenile adjudication is not a conviction of a crime and
should not be treated as one.” State v. Hand, 149 Ohio St.3d 94, 2016-Ohio-5504, 73
N.E.3d 448, ¶ 38. Despite that general rule, Ohio law allows a trial court to view
offenders’ juvenile history as part of their criminal history when imposing consecutive
sentences. State v. Batiste, 2020-Ohio-3673, 154 N.E.3d 1220, ¶ 20 (8th Dist.). But
“use of an offender’s juvenile criminal history is generally reserved for instances where
the offender has an extensive juvenile history.” Id.; see State v. Jones, 8th Dist.
Cuyahoga No. 111208, 2022-Ohio-4202, ¶ 32 (same).
{¶89} The trial court not only used Glover’s single juvenile adjudication in its
consideration of his past criminal acts, but also misinterpreted the ordinance under
which Glover was adjudicated delinquent.
{¶90} Glover was adjudicated delinquent under Toledo Municipal Code
537.16. The ordinance, titled “Assault upon a teacher; disrupting school activity,”
prohibits a person from assaulting, striking or threatening a teacher. Id. But it also
prohibits a person from “disrupt[ing], disturb[ing] or interfere[ing] with the teaching
of any class of students, or disrupt[ing], disturb[ing] or interfere[ing] with any activity
conducted in a school, college, or university building, or upon the campus or grounds
thereof, or in any public place.”
{¶91} Nothing in the record included any facts underlying that adjudication.
Nevertheless, the trial court found that Glover’s adjudication was “an act of violence”
showing that he was not “amenable to follow the law” and demonstrating a need to
protect the public.
{¶92} The findings involving Glover’s criminal history are clearly and
convincingly not supported by the record because there is nothing in the record to
29
OHIO FIRST DISTRICT COURT OF APPEALS
substantiate the finding that Glover’s adjudication was based on a violent act. Indeed,
his adjudication could have been based on something as trivial as nonviolent
disruption of a class or even a pep rally. And Glover had only one other nontraffic-
related conviction, obstructing official business, a misdemeanor.
{¶93} The trial court’s conclusion about Glover’s past criminal acts clearly and
convincingly was not supported by the record. Yet, the record indicates that the trial
court placed significant weight on Glover’s juvenile adjudication in its proportionality
consideration. It found that Glover’s adjudication was “an act of violence,” an “assault
on teachers. That’s kind of disturbing. That causes me some pause and some concern.”
Glover’s juvenile record and his misdemeanor obstruction-of-official-business charge
indicated to the trial court that he was not “amenable to follow the law.” And its
sentencing entry stated, “specifically, the court finds that the defendant’s criminal
history shows a need to protect the public from future crime by the defendant.”
{¶94} Removing Glover’s acts in this case, there is nothing in Glover’s history
that indicates he poses a danger to the public. He had a juvenile adjudication without
any underlying facts to substantiate the trial court’s assertion that it was a violent
crime. And he had a misdemeanor obstructing-justice conviction.
{¶95} The record clearly does not support the trial court’s findings that
Glover’s past conduct shows he poses a danger to the public. The trial court’s improper
findings regarding Glover’s past conduct undermines its proportionality finding.
b. Glover’s current offenses
{¶96} The Second District has determined that a lack of physical harm
requires imposition of concurrent sentences. State v. Hicks, 2d Dist. Greene No. 2015-
CA-20, 2016-Ohio-1420, ¶ 3, 23 (“we note that there is no evidence that Hicks caused
physical harm to any of the residents subject to her fiscal supervision, hence the
30
OHIO FIRST DISTRICT COURT OF APPEALS
conduct does not fit into the category of ‘the harm is so great or unusual that no single
prison term adequately reflects the seriousness’ ”). While we do not wish to paint such
a broad brush, we find that the lack of physical harm weighs against stacking all of the
seven-year aggravated-robbery sentences.
{¶97} This position is bolstered by looking to the Ohio Revised Code. Some
statutes carry an enhancement when the offense causes or risks serious physical harm.
And the penalties for crimes such as aggravated murder, murder, and child rape carry
a life-sentence tail. Thus, the legislature has determined that certain crimes, such as
those causing the most serious physical harm, should get longer sentences.
{¶98} Yet, other than life sentences without a possibility for parole, many
offenders who commit the most serious crimes may serve significantly shorter terms
than Glover. Murder is undoubtedly a more serious crime than aggravated robbery.
But a person who purposely takes another person’s life may have the opportunity to
be paroled after 15 years. Glover, who did not take his victims’ lives or cause them
physical harm, would have no chance of parole at 15, 20, 25, or even 50 years.
{¶99} The trial court stated, “I really can’t think of anything worse than if you
had just shot them, and if you killed them. But you know, maybe they wouldn’t have
to live with the fear and the nightmares that they have as a result of this, because they
would be dead.” The trial’s court’s suggestion that only death—and perhaps not even
death—was the only worse fate for Glover’s victims gives us a glimpse into why the
trial court imposed a sentence akin to life, which is longer than many offenders receive
for more serious crimes. While this court cannot look at every sentence imposed for
every crime, our review above of sentences for crimes causing physical harm bolsters
our conclusion that the trial court’s aggregate sentence was disproportionate to
31
OHIO FIRST DISTRICT COURT OF APPEALS
Glover’s offenses and the danger he poses to the public. The trial court imposed a
longer sentence than in Patton, 1st Dist. Hamilton No. C-190694, 2021-Ohio-295, at ¶
2, where the defendant murdered two strangers; McRae, 1st Dist. Hamilton No. C-
180669, 2020-Ohio-773, at ¶ 5, where the defendant attempted to murder two police
officers (and actually shot one); Prescott, 8th Dist. Cuyahoga Nos. 107784 and 107789,
2019-Ohio-5114, at ¶ 2, where the defendant was convicted of 14 counts each of
aggravated robbery and kidnapping, all with gun specifications, for eight separate
events, when the defendant or his accomplices pistol whipped a victim, causing serious
injuries; Consiglio, 7th Dist. Mahoning No. 21 MA 0066, 2022-Ohio-2340, at ¶ 1-2,
where the defendant assaulted a police officer and raped his grandmother; and Steele,
5th Dist. Delaware No. 21 CAA 11 0061, 2022-Ohio-712, at ¶ 1, where a jury convicted
the defendant of five counts of unlawful sexual conduct with a minor and two counts
of rape.
{¶100} To be clear, we do not suggest that under the facts of this case, the trial
court could not have stacked some of the sentences. Rather, we are firmly convinced
that the record does not support the trial court’s proportionality finding based on it
stacking all the aggravated-robbery and gun-specification sentences.
{¶101} The lack of physical harm, combined with Glover’s lack of criminal
history, firmly convinces us that the trial court erred by finding that a 60-year sentence
was proportionate to his conduct and the danger he poses to the public. This is
especially true because before trial, the state offered 15 years in exchange for a guilty
plea, and after trial, the state recommended a 20- to 25-year sentence.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶102} Simply put, a 60-year sentence—akin to a life sentence—was
disproportionate to Glover’s criminal history, danger he posed to the public, and
offenses.
6) R.C. 2953.08(G)(2) permits this court to modify Glover’s sentences
{¶103} Because we found that the record clearly and convincingly did not
support the trial court’s proportionality finding, R.C. 2953.08(G)(2) permits us to
increase, reduce, or otherwise modify a sentence.
{¶104} Before trial, the state and the victims agreed to a 15-year sentence if
Glover pleaded guilty. And after trial, the state, citing the wishes of some of the victims
and officers, recommended a sentence of between 20 and 25 years. We agree that a
25-year sentence is appropriate.
{¶105} We note that Glover’s appeal did not specifically mention the
consecutive sentencing for the gun specifications. And for penalty-enhancing
specifications, a trial court need not make consecutive-sentencing findings. See, e.g.,
State v. James, 2015-Ohio-4987, 53 N.E.3d 770, ¶ 47 (8th Dist.) (“With there being no
requirement in R.C. 2929.14(B)(1)(g) for the court to make findings of any kind before
ordering a third penalty enhancing specification to be served consecutively, the court
had no obligation to make any findings.”). Nevertheless, the consecutive nature of the
gun specifications is relevant to our proportionality determination because we
consider the aggregate sentence.
{¶106} Therefore, because the trial court’s proportionality findings were clearly
and convincingly unsupported by the record, we default to a single seven-year
sentence for aggravated robbery. The sentences for the six firearm specifications, three
years each, shall be served before the aggravated-robbery sentence and consecutive to
33
OHIO FIRST DISTRICT COURT OF APPEALS
each other and the seven-year aggravated-robbery term. Accordingly, we order the
trial court to impose an aggregate sentence of 25 years of incarceration.
{¶107} We sustain Glover’s sixth assignment of error and remand this cause to
the trial court to enter a 25-year sentence consistent with this opinion.
III. CONCLUSION
{¶108} We sustain Glover’s sixth assignment of error and remand the cause to
the trial court to enter an aggregate term of 25 years of incarceration, consistent with
this opinion. We affirm the trial court’s judgment in all other respects.
Judgment affirmed in part and reversed in part, and cause remanded.
BERGERON, P.J., and CROUSE, J., concur.
Please note:
The court has recorded its own entry this date.
34