Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
Nos. CR-16-610564-A and CR-16-610565-A
ATTORNEY FOR APPELLANT Erin E. Hanson McGinty Hilow &
Spellacy Co., L.P.A
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor Carl Mazzone Eben McNair Assistant
BEFORE: S. Gallagher, J., Kilbane, P.J., and Blackmon, J.
JOURNAL ENTRY AND OPINION
C. GALLAGHER, J.
Cardell Jones appeals the imposition of consecutive sentences
for three sex offenses. We affirm.
The facts are not well developed. Jones is in his
mid-thirties and met the victim when dating and living with
the victim's mother. The victim was under the age of 16
during the time that Jones engaged in a two-and-one-half-
year sexual relationship with her, which resulted in the
birth of two children. On those facts, Jones pleaded guilty
to two counts of sexual battery under R.C. 2907.03(A)(5),
based on the fact that Jones is the victim's natural or
adoptive parent, stepparent, guardian, custodian, or person
in loco parentis of the victim. Jones also pleaded guilty to
unlawful sexual conduct with a minor under R.C. 2907.04(A).
All counts were felonies of the third degree, subject to a
prison term of up to five years.
Jones also had an unrelated weapons charge that carried a
maximum one-year sentence. Thus, as part of the plea deal,
Jones faced a maximum of 16 years in prison if all terms were
imposed consecutive to the others. At sentencing, Jones
contended that a lengthy sentence should not be imposed
because he has other children at home. The trial court
considered what was required by law and sentenced Jones to
four years on each sex offense, to be served consecutively,
and 12 months on the weapons charge to be served concurrently
to all other prison terms - resulting in an aggregate prison
term of 12 years. In his sole assignment of error, Jones
claims that the consecutive sentencing findings are not
supported by the record because his sexual relationship with
the victim was consensual.
R.C. 2929.14(C)(4) authorizes the trial court to order
consecutive sentences if, as is pertinent to this case,
consecutive service (1) is necessary to protect the public
from future crime or to punish the offender; (2) is not
disproportionate to the seriousness of the offender's
conduct and to the danger the offender poses to the public;
and additionally, (3) at least two of the multiple offenses
were committed as part of one or more courses of conduct, and
the harm caused was so great or unusual that no single prison
term for any offense committed adequately reflects the
seriousness of the offender's conduct. State v.
Jones, 8th Dist. Cuyahoga No. 104152, 2016-Ohio-8145,
¶ 5, citing State v. Smeznik, 8th Dist.
Cuyahoga Nos. 103196 and 103197, 2016-Ohio-709, ¶ 6.
At the sentencing hearing, the trial court made all the
required findings, and Jones is not challenging that aspect
of his sentences. Instead, Jones claims that the record does
not support the alternative findings under R.C.
2929.14(C)(4)(a)-(c), that the harm caused by the offenses
was so great or unusual that no single prison term adequately
reflected the seriousness of the offender's conduct under
R.C. 2929.14(C)(4)(b) or the offender's history of
criminal conduct demonstrates the necessity of consecutive
sentences to protect the public from future crime under R.C.
2929.14(C)(4)(c). As will be discussed, the record amply
supports the former finding, and therefore, we need not
review the latter because any error in that respect would be
harmless. Crim.R. 52(A). Only one of the subdivision (a)-(c)
findings is necessary to support consecutive service of
prison terms. R.C. 2929.14(C)(4). We do note that the trial
court did not include the subdivision (b) finding in the
final sentencing entry, so we must remand for the limited
purpose of issuing a nunc pro tunc entry to reflect that
which occurred at the sentencing hearing. State v.
Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d
Jones claims that the two-and-one-half-year incestuous
relationship with the victim, who was under the age of 16
during the time, was consensual, so that the finding under
R.C. 2929.14(C)(4)(b) - that the harm caused by Jones's
conduct was not so great or unusual that no single term
adequately reflects the seriousness of Jones's conduct -
is not supported by the record. Jones's argument
demonstrates that he has failed to comprehend the charges to
which he pleaded guilty and the type of conduct that is
prohibited by law. Jones pleaded guilty to incestuous conduct
with a child under the age of 16. R.C. 2907.03(A)(5).
"Consent" would not be considered a mitigating
factor or a defense in this case. State v. Lowe, 112
Ohio St.3d 507, 2007-Ohio-606, 861 N.E.2d 512, ¶ 14 (the
incest statute is meant to protect children from adults with
authority over them); State v. Snuggs, 3d Dist.
Henry Nos. 7-16-03 and 7-16-05, 2016-Ohio-5466, ¶ 8.
Further, even if consent were relevant as a mitigating
factor, there is no evidence in the record that the sexual
battery offenses involved consensual sexual conduct. The
state conceded that the conduct forming the basis of the
separate and distinct violation of the unlawful sexual
conduct with a minor statute was consensual for the purposes
of the registration requirements for that offense, but the
record is silent as to the nature of the sexual conduct
forming the basis of the sexual battery counts. In the
presentence investigation report, Jones claimed that the
victim's mother consented to Jones's sexual
relationship with the victim. Nothing in the record
demonstrates that the victim consented to the sexual conduct
underlying the sexual battery counts.
We cannot clearly and convincingly find that the record does
not support the findings under R.C. 2953.08(G). Jones engaged
in a prolonged sexual relationship with an underage victim
under his care in some capacity, and moreover, he fathered
two children for whom the underage victim is responsible.
This supports the finding that the harm caused was so great
and unusual that no single prison term adequately reflects
Jones's conduct under R.C. 2929.14(C)(4)(b). State v.
Clyde, 6th Dist. Erie Nos. E-16-045 and E-16-048,
2017-Ohio-8205, ¶ 14 (16-year, aggregate term of prison
on four counts of sexual battery in violation of R.C.
2907.03(A)(5) affirmed based on the number of offenses
committed against the young victim and the defendant's
failure to take responsibility for the criminal conduct);
see also State v. Nierman, 6th Dist. Ottawa No.
OT-15-020, 2017-Ohio-672, ¶ 2 (15-year aggregate term on
three counts under R.C. 2907.03(A)(5) affirmed); State v.
Harrington, 11th Dist. Trumbull No. 2006-T-0122,
2007-Ohio-5784, ¶ 26 (20-year, aggregate sentence
affirmed for several counts, including violations of R.C.
In this case, the victim was under Jones's care, and the
criminal conduct repeatedly occurred over a lengthy period of
time. Further, Jones did not help his situation when
discussing the crimes with the probation department. In the
presentence investigation report, it was noted that Jones
claimed that "he is only guilty of unlawful sexual
contact with a minor and not sexual battery or gross sexual
imposition because the victim's mother gave her to
him." Jones also expressed his desire to withdraw his
plea because he was not guilty of the sexual battery counts