State v. Currence

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[Cite as State v. Currence, 2024-Ohio-1320.] IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT HARRISON COUNTY STATE OF OHIO, Plaintiff-Appellee, v. JESSICA CURRENCE, Defendant-Appellant. OPINION AND JUDGMENT ENTRY Case No. 23 HA 0004 Criminal Appeal from the Court of Common Pleas of Harrison County, Ohio Case No. CRI 2021-0078 BEFORE: Cheryl L. Waite, Carol Ann Robb, Mark A. Hanni, Judges. JUDGMENT: Affirmed. Atty. Lauren E. Knight, Harrison County Prosecutor, for Plaintiff-Appellee Atty. Jacob T. Will, for Defendant-Appellant Dated: March 21, 2024 –2– WAITE, J. {¶1} Appellant Jessica Currence appeals her conviction and sentence stemming from multiple charges arising from the death of an eight-year-old child under her care. Appellant argues that the charges of reckless homicide and attempted child endangerment should have merged at sentencing because they were crimes against the same person arising from the same set of facts. As the evidence reflects the two crimes were committed separately on separate days, merger was not required. Appellant also argues that the court should not have imposed consecutive sentences. The court made the appropriate findings in order to impose consecutive sentences, and the record supports the trial court's judgment. Appellant's two assignments of error are overruled and the judgment of the trial court is affirmed. Facts and Procedural History {¶2} On October 20, 2021, Appellant was indicted on ten charges, including reckless homicide, involuntary manslaughter, felonious assault, domestic violence, tampering with evidence, and multiple counts of endangering children. The charges arose from the death of eight-year-old P.M., who was in Appellant's care. The child was her boyfriend's daughter and was a medically fragile special needs child. The child died while bathing, and while the child had burns and bruises on her body, the record reveals that she died from lack of oxygen. After numerous delays, jury trial was set for February 13, 2023. Jury trial was cancelled on February 10, 2023, when the parties indicated to the court that a plea agreement was imminent. On February 14, 2023, Appellant pleaded guilty to an amended indictment for reckless homicide in violation of R.C. 2903.041(A), a third degree felony; attempted child endangerment in violation of R.C. 2919.22(B)(3), a Case No. 23 HA 0004 –3– third degree felony; tampering with evidence pursuant to R.C. 2921.12(A)(1), a third degree felony; and domestic violence, a first degree misdemeanor pursuant to R.C. 2919.25(A)(1). The remaining charges in the indictment were dismissed. Following a hearing, the court accepted the guilty plea on February 22, 2023. Sentencing was held on March 3, 2023. At sentencing, the prosecutor described the circumstances of the crimes. {¶3} The victim was placed in the custody of her biological father after being abused by her biological mother. Appellant is not the mother of the child. The child was described as "medically fragile." (3/3/23 Tr., p. 3.) On June 25, 2021, the child sustained burns on the feet and buttocks while taking a bath. Appellant did not take the child for treatment for fear of being accused of child endangerment, as she had previously been accused of child endangerment. {¶4} On June 27, 2021, P.M. was taking a bath while in Appellant's care at a home in Moorefield Township. Appellant called 911 for medical help for the child and then drained the bathtub. The EMTs that arrived found P.M. in the bathtub unresponsive, cold, and blue. They tried to revive her and then took her to the hospital. P.M. was pronounced dead at 9:25 p.m. on June 27, 2021. Due to her burned feet, buttocks, and other signs of bruising and injury to the child, an autopsy was performed. The death certificate listed the cause of death as sequale to thermal and blunt force injuries. {¶5} During the course of this case, Appellant hired a medical expert who determined that the coroner was incorrect and that the cause of death was cardiac arrest due to lack of oxygen, also described as asphyxiation. The information forming the basis of the conclusion on the death certificate had largely come from Appellant's accounts of Case No. 23 HA 0004 –4– events rather than through medical investigation, and the medical expert concluded it was incorrect. Appellant had actually removed the child's external oxygen supply during the bath, even though the child had increased oxygen requirements that day and had been recovering from double pneumonia. The state also obtained evidence that Appellant had repeatedly beaten P.M. and forced the child to take cold showers as punishment for bedwetting or accidents. {¶6} The court sentenced Appellant to 30 months in prison for reckless homicide, 24 months for attempted child endangerment, and 12 months for tampering with evidence, to be served consecutively. The court merged the misdemeanor sentence for domestic violence with the sentence for the felonies. The court held that the reckless homicide and attempted child endangerment charges did not merge under R.C. 2941.25 because they were of dissimilar import and were committed separately. The sentencing entry was filed on March 8, 2023. Timely notice of appeal was filed on April 10, 2023, as April 8, 2023 was a Saturday, giving Appellant two extra days to file. Appellant raises two assignments of error on appeal. ASSIGNMENT OF ERROR NO. 1 THE TRIAL COURT ERRED IN FAILING TO MERGE THE OFFENSES OF RECKLESS HOMICIDE AND ATTEMPTED CHILD ENDANGERING FOR PURPOSES OF SENTENCING. {¶7} Appellant contends that the counts of reckless homicide and attempted child endangerment should have merged at sentencing. Appellant argues that R.C. 2941.25(B) prohibits multiple punishments for the same crimes. Crimes may be punished Case No. 23 HA 0004 –5– separately only if they are of dissimilar import, if they were committed separately, or if they were committed with separate animus. Appellant claims that the two crimes were committed with the same animus, and therefore, could not be separately punished. Appellant also argues that the crimes are of similar import because the burns that occurred on June 25, 2021, led to the death in the bathtub on June 27, 2021. Appellant contends that the same conduct arising from the same set of general facts cannot constitute dissimilar import, and therefore, cannot be punished separately. {¶8} Appellee responds by arguing Appellant fundamentally misunderstands how R.C. 2941.25 is applied. Appellant seems to believe that if any one of the three listed factors cannot be found, then consecutive sentences may not be imposed. Appellee correctly states that if any of the three factors is found, then consecutive sentences can be imposed. Appellee contends that crimes can be punished separately, even involving the same victim and same factual context, if they were committed separately, regardless of whether the animus was the same or whether they were of similar import. This is based on the holding in State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892 (reviewing R.C. 2941.25(B)), which provided a three-part test to determine whether crimes must be merged. Crimes can be separately punished if at least one of three facts is true: there is separate conduct underlying each crime, separate animus exists for each crime, or the crimes are of dissimilar import. Id. at ¶ 25. “Dissimilar import” means that there were separate victims or that the harm that resulted from each offense is separate and identifiable. Id. at ¶ 26. The analysis of whether crimes should merge under R.C. 2921.25 is specific to the facts of each case as drawn from evidence offered at trial or from the facts presented at the plea or sentencing hearing. Id. Merger determinations Case No. 23 HA 0004 –6– are reviewed de novo. State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28. {¶9} The protection afforded by R.C. 2941.25 arises from the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, which provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” This is also guaranteed by the Ohio Constitution, Article I, Section 10. The Double Jeopardy Clause protects against three abuses: (1) “a second prosecution for the same offense after acquittal,” (2) “a second prosecution for the same offense after conviction,” and (3) “multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). R.C. 2941.25 codifies the third of these protections; the prohibition of multiple punishments for the same offense. {¶10} Appellant raised the issue of merger of the reckless homicide and attempted child endangerment charges at sentencing. There, Appellant argued that the two crimes were committed with the same animus and were of similar import, and could not be punished separately. Pursuant to Ruff, though, crimes can be separately punished if there is separate conduct as well as separate animus, or if the crimes are of dissimilar import. Appellant has not addressed the question of whether or not the crimes were committed separately. The trial court found both that the crimes were dissimilar, and that they were committed separately. If there is any factual basis at all for the trial court to conclude that the crimes of child endangerment and reckless homicide were committed separately, then the judgment of the trial court should be affirmed, because Appellant presented no argument to oppose such a conclusion. Appellee primarily argues that the crimes were committed separately. Case No. 23 HA 0004 –7– {¶11} Appellant pleaded guilty to four of the ten counts in the indictment. The court's merger analysis was based on the limited facts described at sentencing. The prosecutor explained that on June 25, 2021, the eight-year-old child suffered burns to her feet and buttocks while taking a bath under Appellant's care. Appellant failed to call for medical treatment for these burns. (3/3/23 Tr., p. 2.) On June 27, 2021, the child died while in a bathtub, again under Appellant's care. The death was caused by cardiac arrest due to lack of oxygen, which was also described as asphyxiation. Appellant had removed the child's external oxygen supply during the bath even though the child had increased oxygen requirements. (3/3/23 Tr., p. 4.) The prosecutor argued that the events of June 25, 2021, formed the basis for the attempted child endangerment charge, and the separate events of June 27, 2021, were the basis of the reckless homicide charge. The facts involved the same victim, but otherwise do not overlap. As there are facts to support both charges, which were based on very different circumstances and occurred on two different days, the trial court correctly determined that merger was not appropriate because the crimes were committed separately. {¶12} At the sentencing hearing the trial court also found that the crimes of reckless homicide and attempted child endangerment were of dissimilar import. Based on the reasoning in Ruff, this means that the resulting harm was separate and identifiable. The harm caused on June 25, 2021, constituted burns on the feet and buttocks of the child. The harm caused on June 27, 2021, was the death of the child due to the removal of the child's external oxygen supply. Appellant's confusion as to why the trial court found these crimes were dissimilar may arise from the initial faulty conclusion that the death of the child in the bathtub was caused by burns, presumably the burns suffered two days Case No. 23 HA 0004 –8– earlier. This faulty conclusion was listed on the child's death certificate, but it was later refuted by the findings and conclusions of Appellant's own medical expert, who determined that the cause of death was cardiac arrest due to lack of oxygen. If the death did not arise from the earlier burns, then there is absolutely no basis for concluding that the crimes were of similar import. {¶13} Although the trial court did not state in the sentencing entry that there was separate animus for the crimes, facts supporting separate animus are clearly in the record. Appellant provided information to law enforcement that the reason no medical treatment was sought on June 25, 2021, was that Appellant had previously been accused of child abuse. (3/3/23 Tr., p. 5.) The implication is that Appellant purposely withheld treatment due to fear of being again accused of abuse. This clearly shows a criminal state of mind and supports animus for the June 25, 2021 attempted child endangerment charge. This does not form the same animus for the June 27, 2021 act of withholding oxygen from the child, leading to the charge of reckless homicide. Recklessness can be inferred from Appellant’s knowledge that the child was medically fragile, that she needed medical oxygen, that the oxygen was administered during some portion of the bath, and that Appellant at some point removed the necessary oxygen during the bath. The facts and reasoning behind both inferences of criminal animus are completely distinct. {¶14} The record supports that the two crimes of child endangerment and reckless homicide were of dissimilar import, were committed with separate animus, and were committed separately. This constitutes three distinct reasons to support the trial court judgment that the convictions should not merge. For these reasons, Appellant's first assignment of error is overruled. Case No. 23 HA 0004 –9– ASSIGNMENT OF ERROR TWO THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES. {¶15} Appellant contends that no evidence was submitted at sentencing to justify consecutive sentences. Appellant argues that one of the findings a court must make to impose consecutive sentences is that consecutive sentences are necessary to protect the public from future harm or to punish the offender. Appellant believes the record shows that she does not present a risk of future harm, and that consecutive sentences were too harsh. Appellant argues that she had no prior convictions, had been a law-abiding citizen for many years, was a low risk for recidivism, and showed genuine remorse. Appellant contends that this was enough for her to avoid consecutive sentences. {¶16} R.C. 2953.08 allows for appellate review of consecutive sentences. R.C. 2953.08(A)(4) permits review of sentences that are "contrary to law." A reviewing court "may increase, reduce, or otherwise modify a sentence" if it "clearly and convincingly finds" that "the record does not support the sentencing court's findings under * * * division * * * (C)(4) of section 2929.14." R.C. 2953.08(G). {¶17} R.C. 2929.14(C)(4) governs the imposition of consecutive sentences. A court must make certain findings before imposing consecutive sentences under the statute. Those findings are as follows: "the consecutive service is necessary to protect the public from future crime or to punish the offender"; "consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public"; and one of the three findings listed in R.C. 2929.14(C)(4)(a), Case No. 23 HA 0004 – 10 – (b), or (c) is present. The trial court made the first two findings, as well as the finding required by R.C. 2929.14(C)(4)(b), which states: (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. Appellant challenges this last finding. {¶18} A trial court must make the consecutive sentence findings at the sentencing hearing and must additionally incorporate the findings into its sentencing entry. State v. Williams, 2015-Ohio-4100, 43 N.E.3d 797, ¶ 33-34 (7th Dist.), citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37. The trial court did both of these things. The court is not required to state reasons in support nor is it required to use any “magic” or “talismanic” words, so long as it is apparent that the court conducted the appropriate analysis. Williams at ¶ 34, citing State v. Jones, 7th Dist. Mahoning No. 13 MA 101, 2014-Ohio-2248, ¶ 6; State v. Verity, 7th Dist. Mahoning No. 12 MA 139, 2013Ohio-1158, ¶ 28-29. The trial court did provide several reasons for imposing consecutive sentences. {¶19} An appellate court does not review a felony sentence under an abuse of discretion standard. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231. “[A]n appellate court may vacate or modify a felony sentence on appeal only if it determines by clear and convincing evidence that the record does not support the trial Case No. 23 HA 0004 – 11 – court's findings under relevant statutes or that the sentence is otherwise contrary to law.” Id. at ¶ 1. A sentence is considered to be clearly and convincingly contrary to law if it falls outside of the statutory range for the particular degree of offense; if the trial court failed to properly consider the purposes and principles of felony sentencing as enumerated in R.C. 2929.11 and the seriousness and recidivism factors set forth in R.C. 2929.12; or if the trial court orders consecutive sentences and does not make the necessary consecutive sentence findings. State v. Pendland, 7th Dist. Mahoning No. 19 MA 0088, 2021-Ohio-1313, ¶ 41; State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 30. {¶20} The Ohio Supreme Court later clarified the holding of Marcum and held that "[n]othing in R.C. 2953.08(G)(2) permits an appellate court to independently weigh the evidence in the record and substitute its judgment for that of the trial court concerning the sentence that best reflects compliance with R.C. 2929.11 and 2929.12." State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 42. {¶21} The Ohio Supreme Court briefly changed the standard of review for consecutive sentences on December 23, 2022 in State v. Gwynne, Slip Opinion No. 2022Ohio-4607. The Gwynne opinion allowed for de novo review of felony sentences. On October 25, 2023, the reconsidered decision of State v. Gwynne, Slip Opinion No. 2023Ohio-3851, was released. The original Gwynne decision was vacated and superseded. Under the reconsidered Gwynne case, consecutive sentences are largely reviewed as Case No. 23 HA 0004 – 12 – they had been under the standards set forth by the Marcum, Bonnell, and Jones cases cited above. {¶22} The reconsidered Gwynne Opinion restated the standard of review as follows: The language of R.C. 2953.08(G)(2) mandates that an appellate court may increase, reduce, or otherwise modify consecutive sentences only if the record does not “clearly and convincingly” support the trial court's R.C. 2929.14(C)(4) consecutive-sentence findings. The clear-and-convincing standard for appellate review in R.C. 2953.08(G)(2) is written in the negative. This court has defined “clear and convincing evidence” as “that measure or degree of proof which is more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. Therefore, an appellate court is directed that it must have a firm belief or conviction that the record does not support the trial court's findings before it may increase, reduce, or otherwise modify consecutive sentences. The statutory language does not require that the appellate court have a firm belief or conviction that the record supports the findings. This language is Case No. 23 HA 0004 – 13 – plain and unambiguous and expresses the General Assembly's intent that appellate courts employ a deferential standard to the trial court's consecutive-sentence findings. R.C. 2953.08(G)(2) also ensures that an appellate court does not simply substitute its judgment for that of a trial court. Gwynne, Slip Opinion No. 2023-Ohio-3851, at ¶ 13-15. {¶23} In this appeal, Appellant is not actually challenging whether the court made the requisite findings required by R.C. 2929.14(C). Appellant appears to concede that the court made these findings. Appellant disagrees with the factual basis of those findings. Therefore, the standard of review is whether the appellate court has a firm belief or conviction that the record does not support the trial court's findings. {¶24} Although Appellant is correct that the trial court did cite some factors that could be weighed in her favor regarding sentencing, the court also mentioned very strong factors in favor of the most severe sentence. The court noted that Appellant was in charge of the child on June 25, 2021, when the child suffered severe burns while bathing. Appellant sought no medical treatment for those burns. Then, only two days later, Appellant put the child in the same bathtub, disconnected the oxygen supply, left the room, and came back to find the child dead. The court noted that Appellant removed the oxygen knowing that the child was still recovering from double pneumonia. {¶25} The court noted the factor regarding whether Appellant was likely to commit the crime again did not work in her favor because Appellant committed two crimes against the child involving the bathtub within two days of each other. The court found that the injury to the child was worsened by the child's physical condition and special needs, and Case No. 23 HA 0004 – 14 – that Appellant was aware of the special needs of the child. The court took into account all the harm suffered by the child, including the initial burns, the indications of abuse, and the death of the child. The court found that Appellant's relationship with the child facilitated these crimes. {¶26} Although Appellant argues that the court found that she showed remorse, the judge also stated that he did not find remorse as to the child endangerment charge. (3/3/23 Tr., p. 29.) {¶27} We note that the court may consider charges dismissed as part of a plea bargain when fashioning a sentence. State v. Moore, 7th Dist. Belmont No. 03BE22, 2003-Ohio-4888, ¶ 18. The sentence in this case arose from a plea bargain in which six of ten charges were dismissed, and one was reduced to an attempt charge. {¶28} There is no basis for this Court to conclude that the record clearly and convincingly fails to support the trial court's findings regarding consecutive sentences. The record, in fact, overwhelmingly supports the imposition of consecutive sentences. Appellant’s second assignment of error is overruled. Conclusion {¶29} Appellant argues that the charges of reckless homicide and attempted child endangerment should have merged at sentencing because they were crimes against the same person arising from the same set of facts. As evidence shows the two crimes were committed separately on separate days, the court was not required to merge them. Appellant also argues that the court should not have imposed consecutive sentences. The court made the appropriate findings to impose consecutive sentences, and the record Case No. 23 HA 0004 – 15 – supports the trial court's judgment. Accordingly, both of Appellant's assignments of error are overruled and the judgment of the trial court is affirmed. Robb, P.J. concurs. Hanni, J. concurs. Case No. 23 HA 0004 [Cite as State v. Currence, 2024-Ohio-1320.] For the reasons stated in the Opinion rendered herein, Appellant’s assignments of error are overruled and it is the final judgment and order of this Court that the judgment of the Court of Common Pleas of Harrison County, Ohio, is affirmed. Costs to be taxed against the Appellant. A certified copy of this opinion and judgment entry shall constitute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a certified copy be sent by the clerk to the trial court to carry this judgment into execution. NOTICE TO COUNSEL This document constitutes a final judgment entry.

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