Opinion
2022-L-109
07-17-2023
STATE OF OHIO, Plaintiff-Appellee, v. JED S. HUPP, Defendant-Appellant.
Charles E. Coulson, Lake County Prosecutor, and Kristi L. Winner, Assistant Prosecutor, Lake County Administration Building, (For Plaintiff-Appellee). Catherine R. Meehan, Patituce & Associates, LLC, (For Defendant-Appellant).
Criminal Appeal from the Court of Common Pleas Trial Court No. 2022 CR 000474
Charles E. Coulson, Lake County Prosecutor, and Kristi L. Winner, Assistant Prosecutor, Lake County Administration Building, (For Plaintiff-Appellee).
Catherine R. Meehan, Patituce & Associates, LLC, (For Defendant-Appellant).
OPINION
MATT LYNCH, J.
{¶1} Defendant-appellant, Jed S. Hupp, appeals from his sentence for four counts of Gross Sexual Imposition in the Lake County Court of Common Pleas. For the following reasons, we affirm the judgment of the lower court.
{¶2} On May 17, 2022, the Lake County Grand Jury indicted Hupp for Disseminating Matter Harmful to Juveniles, a felony of the fourth degree, in violation of R.C. 2907.31(A)(3); five counts of Rape, felonies of the first degree, in violation of R.C. 2907.02(A)(1)(b); Attempted Rape, a felony of the first degree, in violation of R.C. 2923.02 and 2907.02(A)(1)(b); Kidnapping, a felony of the first degree, in violation of R.C. 2905.01(A)(4); and Endangering Children, a misdemeanor of the first degree, in violation of R.C. 2919.22(B)(1).
{¶3} On September 7, 2022, Hupp entered pleas of guilty to four amended counts of Gross Sexual Imposition, felonies of the third degree, in violation of R.C. 2907.05(A)(4). At the plea hearing, the State described that, had the matter gone to trial, the evidence would have shown Hupp had sexual contact with a juvenile victim, A.H., who was less than 13 years of age. The court accepted the pleas and found Hupp guilty of the offenses.
{¶4} A sentencing hearing was held on October 19, 2022. Defense counsel indicated that Hupp had seven children and had never been accused of abuse. Counsel highlighted difficulties in Hupp's childhood, including his father's absence. He observed that this upbringing "lent to a more chaotic lifestyle" which resulted in Hupp moving in with the mother of the victim in this case, K.S. He believed that Hupp should not have been entrusted with supervising A.H., since he lacked skills with raising children and had an alcohol problem. Counsel noted that records did not show psychological harm to A.H., who continued to perform well in school. Counsel stated that Hupp indicated he would seek education while in prison and had expressed remorse. Hupp stated that he was living in an "addictive alcoholic haze" during the time of the conduct giving rise to the convictions and indicated that he is taking steps to better his life, including participation in a 12-step program. He apologized and asked for forgiveness.
{¶5} A letter from A.H. was read, in which she expressed that Hupp hurt her, she suffers depression due to his conduct, she wanted to commit suicide, and she now has trust issues with men. The prosecutor argued that Hupp had been placed in a position of trust to watch A.H. while his girlfriend was at work, and, while doing so, repeatedly touched A.H.'s genitals and forced her to touch him. This occurred while the victim was between the ages of 8 and 11. The State requested maximum, consecutive sentences.
{¶6} The court indicated that it considered the presentence investigation report (PSI), victim impact statements, the statements of counsel and Hupp, and the relevant sentencing statutes. It found these were the worst forms of the offenses and the victim suffered serious psychological harm. It observed that Hupp had not provided his version of the events giving rise to the convictions in the PSI and noted that his in-court statement did not mention the victim. It ordered Hupp to serve consecutive terms of 60 months for each count of Gross Sexual Imposition, for a total term of 20 years in prison.
{¶7} Hupp timely appeals and raises the following assignments of error:
{¶8} "[1.] Appellant was denied the effective assistance of counsel at his sentencing hearing in violation of his rights under the Sixth and Fourteenth Amendments as well as Art. I, Sec. 10 of the Ohio Constitution.
{¶9} "[2.] The trial court erred in sentencing Appellant to serve consecutive sentences."
{¶10} In his first assignment of error, Hupp argues that his counsel made "inflammatory statements" during the sentencing hearing which resulted in prejudice to him. He contends that defense counsel "attempted to blame the mother of the victim in this case for leaving the child in Mr. Hupp's care" and shamed the child victim, which were not effective trial strategies and impacted his sentence.
{¶11} To demonstrate ineffective assistance of counsel, a defendant must prove "(1) that counsel's performance fell below an objective standard of reasonableness, and (2) that counsel's deficient performance prejudiced the defendant resulting in an unreliable or fundamentally unfair outcome of the proceeding." State v. Madrigal, 87 Ohio St.3d 378, 388-389, 721 N.E.2d 52 (2000), citing Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "To show that a defendant has been prejudiced by counsel's deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different." State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph three of the syllabus. "There is a strong presumption that the attorney's performance was reasonable." State v. Gotel, 11th Dist. Lake No. 2006-L-015, 2007- Ohio-888, ¶ 10.
{¶12} At the sentencing hearing, defense counsel discussed Hupp's "chaotic" lifestyle due to his upbringing. He indicated this led to Hupp moving in with the victim's mother, his girlfriend. He continued: "I don't want to throw stones but I think she was very upset that my client was going to marry and have children with [another woman]. On two occasions * * * [K.S.] physically assaulted [that woman]." The court indicated this was unrelated to the offenses. The following exchange then took place:
DEFENSE COUNSEL: Well, I'm saying that it's life that's generated into a chaotic situation because of a psychotic situation in this home, the home that he's accused of molesting [A.H.]. For some reason somebody with his background was left alone with children while the mother worked. I think that leaving somebody that doesn't have * * * the faculties or the instruction on how to babysit or raise little people -
THE COURT: That sounds like what you're telling me in the last 60 seconds is that [K.S.] is responsible for this because she left him alone with [A.H.] * * *; is that what you're telling me?
DEFENSE COUNSEL: Not entirely.
THE COURT: Is that partially what you're telling me?
DEFENSE COUNSEL: I would say it had something to do with it.
{¶13} Subsequently, after counsel addressed factors relevant to sentencing such as remorse and psychological harm, the following exchange occurred:
DEFENSE COUNSEL: And I don't mean to, I never want to call the victim any kind of aid or abettor in this but …
THE COURT: How do you aid and abet when you're 8, 9 years old?
DEFENSE COUNSEL: Well, like I said I don't want to get into that.
THE COURT: Well, you brought up that you don't want to tag the victim as being an aider and abetter and you brought it up so I asked you how does an 8 or 9 year old aid or abet?
DEFENSE COUNSEL: I don't know how an 8 or 9 year old would. May I remind you, Judge, this wasn't reported until May of '21. * * * So when you say 8 or 9 you're going back four years. * * * And the way I read the probation report there was no specific instances during that 8 or 9 she just said back then.
THE COURT: Right, * * * 2016 to 2020 when she was going back to 7 or 8 years old for over four years; that's what I'm talking about. You said that you don't want to portray her as [an] aider or abetter but that's what you're doing and I asked you how an 8 or 9 year old can be an aider or abetter in this, that's what I'm asking, if you're claiming that I'm asking you how that's possible.
DEFENSE COUNSEL: I'm not claiming it.
THE COURT: Well, you told me -- all right, go ahead. I'll let you go ahead.
DEFENSE COUNSEL: Well, there is -- I don't see evidence about the 8 or 9 year old's conduct, I think some of it's exaggerated.
THE COURT: Let me help you out, okay, this is reported May 12th of '21 * * * And the victim is 12 years old, okay. It happened between '16 and '20 which was five years previous to this, that's my math, that's how I'm coming up with that. And it specifically talks about the age of 8 or 9 in the presentence report, it's there, I read it so that's how I come up with it.
DEFENSE COUNSEL: There is no specific indication that anything was reported or any specific conduct it's just that this happened and this and that. I'm saying that at 11 and 12 then you become sexually active so I'm not saying, I'm not saying that that is not normal I'm saying it's normal. So it's not indicative of inducing or aiding and abetting but I am saying that there is, because of the problems in the household, those are mentioned in the probation report, I think there was a lack of proper parental controls throughout the family in that house.
The court then observed that Hupp was acting in loco parentis when the abuse occurred.
{¶14} At the sentencing hearing, defense counsel did emphasize facts which could be favorable to Hupp, such as his efforts at bettering himself, expression of remorse, and attempted to point to the victim's success in her studies to lessen evidence of psychological harm. However, the statements described above would be of questionable, if any, benefit to the defendant. Although defense counsel did state that he was not ultimately arguing the victim aided or abetted the offenses, raising the topic and questioning whether a child sex abuse victim "abetted" the offense was in poor taste and cannot arguably be an effective strategy in sentencing. Further, implying that the victim's mother may be at fault for the abuse by leaving Hupp with her child, particularly when there was nothing in the record to show his past abuse of children, appears to be a poor strategy as it does not absolve him of his conduct or mitigate the offenses he committed.
{¶15} We recognize that reviewing courts "ordinarily refrain from second-guessing strategic decisions counsel make at trial," even where trial counsel's strategy was "questionable." State v. Myers, 97 Ohio St.3d 335, 2002-Ohio-6658, 780 N.E.2d 186, ¶ 152; State v. Kovac, 150 Ohio App.3d 676, 2002-Ohio-6784, 782 N.E.2d 1185, ¶ 65 (2d Dist.) ("[a] court must presume that a broad range of choices, perhaps even disastrous ones, are made on the basis of a tactical decision and do not constitute ineffective assistance of counsel"). Also State v. Prieto, 7th Dist. Mahoning No. 07 MA 4, 2007- Ohio-7204, ¶ 46 (where defense counsel made statements emphasizing the defendant's criminal record and tough reputation, the appellate court observed that "a defendant is not entitled to counsel who always makes the most brilliant statements, but * * * to counsel whose decisions fall within the wide range of reasonable professional assistance"). While recognizing the deference to be provided to counsel on matters of trial strategy, those statements placing blame on the mother and the victim are arguably not an example of any strategy, as they provided little benefit to Hupp while also attempting to deflect blame to the victim and her family, a tactic which is typically not viewed in a positive light by sentencing courts. See State v. Longnecker, 4th Dist. Washington No. 02CA76, 2003-Ohio-6208, ¶ 44 (court considering defendant's blaming of the victim as factor in determining length of sentence); State v. Bittner, 12th Dist. Warren No. CA2019-01-001, 2019-Ohio-3834, ¶ 49 (sentence supported by the record where defendant blamed the victim and his child).
{¶16} Even presuming counsel's performance fell below an objective standard of reasonableness, we must consider whether it resulted in an unfair outcome. The "aiding and abetting" statements and placement of blame on the mother were arguments advanced by defense counsel and counsel did not attribute these arguments or beliefs to Hupp. Where defense counsel improperly references certain facts or evidence at sentencing, "a judge is presumed to be capable of separating what may be properly considered from what may not be considered" and to consider only relevant, material, and competent evidence. (Citation omitted.) State v. Ford, 158 Ohio St.3d 139, 2019-Ohio-4539, 140 N.E.3d 616, ¶ 414-415, 433. See State v. Moreland, 8th Dist. Cuyahoga No. 83977, 2004-Ohio-6622, ¶ 19 (where defense counsel failed to object to "inflammatory statements" of the prosecutor, it was presumed the court did not consider such material and it could be "reasonably assum[ed] that the judge would be unaffected by any inflammatory evidence"). Here, the trial court specifically noted that arguments relating to issues such as the victim's mother's actions were not relevant. We can presume that the court did not improperly attribute the comments blaming the mother or victim to Hupp in the absence of facts in the record to indicate that it did so.
{¶17} Hupp, however, contends that it is reasonable to infer that the lower court considered the foregoing statements of counsel and attributed them to him, which resulted in a greater sentence than would otherwise have been ordered.
{¶18} After the argument and evidence were presented at the sentencing hearing, the trial court judge noted that it had considered the statements offered, the PSI and victim impact statement, and the relevant statutory considerations. It then stated:
Now to lay this off as being the fault of [K.S.] or not apparently teaching Mr. Hupp how to watch children before she left the house is nothing short of outrageous to suggest it's [K.S.]'s fault. To suggest that [A.H.] was somehow aiding and abetting this in the words of [defense counsel] is equally outrageous. Mr. Hupp was in his thirties when this activity started. And this activity occurred and [A.H.] as [the State] just pointed out is in the 10-11 year old range when this happened. There is an adult and there is a child, an adult and a child and no lack of adequate upbringing, no lack of adequate supervision from the child's mother has anything to do with what you did.
The court proceeded to find that Hupp's conduct was the worst form of the offense and rejected the argument that A.H. did not suffer psychological harm, given the victim impact statement. It emphasized Hupp's failure to provide his version of events for the PSI as well as his failure to recognize the victim in his statement, instead emphasizing only how he would improve himself. The court stated that the sentence was imposed following "consideration of all the information in this case and everything that I have reviewed and everything that everybody has said."
{¶19} There is no question that the court did mention the statements of defense counsel during its summary of the facts presented at sentencing. While the trial court mentioned these comments, it made no finding that Hupp blamed the victim or the mother. It clearly indicated that such statements were "outrageous," which demonstrates that such arguments did not carry weight and were rejected as considerations in mitigating the sentence. The court did not, however, indicate that it based its sentence of Hupp on these statements. After rejecting these arguments, the court then proceeded to explain the grounds for its sentence, which included that Hupp had committed the worst form of the offenses, the psychological harm caused to the victim, Hupp's failure to provide his version of events, and Hupp's failure to reference the victim in his statement before the court. These grounds provided adequate support for ordering that Hupp serve the maximum sentences for Gross Sexual Imposition. Where the record does not show that the court considered defense counsel's improper statements in sentencing the defendant, there is a lack of prejudice. Ford, 158 Ohio St.3d 139, 2019-Ohio-4539, 140 N.E.3d 616, at ¶ 415.
{¶20} The first assignment of error is without merit.
{¶21} In his second assignment of error, Hupp argues that the consecutive sentences were improper because his sentence was invalid for the reasons discussed above. He also argues that the record does not clearly and convincingly support the finding of consecutive terms of incarceration.
{¶22} "The court hearing an appeal [of a felony sentence] shall review the record, including the findings underlying the sentence or modification given by the sentencing court." R.C. 2953.08(G)(2). "The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing * * * if it clearly and convincingly finds * * * [t]hat the record does not support the sentencing court's findings under division * * * (C)(4) of section 2929.14 [or] * * * [t]hat the sentence is otherwise contrary to law." Id.
{¶23} Pursuant to R.C. 2929.14(C)(4), separate prison terms for multiple offenses may be ordered to be served consecutively if the court finds it is "necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public," and finds any of the R.C. 2929.14(C)(4)(a)-(c) factors are present. The applicable factor here was R.C. 2929.14(C)(4)(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." The court made the required findings at the sentencing hearing and in the sentencing entry.
{¶24} Hupp reiterates his argument that the court held counsel's statements against him in ordering his sentence. For those reasons addressed above, we do not find the court relied on inappropriate considerations in reaching its sentence. There is nothing in the record to indicate that the consecutive sentences were ordered because of the defense counsel's comments. Instead, as will be addressed below, there were several factors relating to Hupp's conduct that provided a basis for consecutive sentences.
{¶25} Hupp also argues that the record does not clearly and convincingly support consecutive terms of incarceration for Mr. Hupp. He contends that "a single prison term would have given Mr. Hupp a substantial amount of time to reflect on his actions and to engage in rehabilitation programs so that he could become a productive member of society."
{¶26} To reverse consecutive sentencing findings, this court must clearly and convincingly find that the record does not support the trial court's findings. R.C. 2953.08(G)(2)(a); State v. Guth, 11th Dist. Portage No. 2015-P-0083, 2016-Ohio-8221, ¶ 23. This standard has been characterized as "extremely deferential." State v. Forsell, 11th Dist. Portage Nos. 2019-P-0116, et al., 2020-Ohio-5381, ¶ 15. There must be an "evidentiary basis" that is "adequate to fully support the trial court's consecutive-sentence findings." State v. Gwynne,__Ohio St.3d__, 2022-Ohio-4607,__ N.E.3d__, ¶ 29. "This requires the appellate court to focus on both the quantity and quality of the evidence in the record that either supports or contradicts the consecutive-sentence findings. An appellate court may not, for example, presume that because the record contains some evidence relevant to and not inconsistent with the consecutive-sentence findings, that this evidence is enough to fully support the findings." Id. In evaluating consecutive sentences, the appellate court is "authorized to substitute its judgment for the trial court's judgment if [it] has a firm conviction or belief, after reviewing the entire record, that the evidence does not support the specific findings made by the trial court to impose consecutive sentences." Id.
{¶27} There was evidence to support the findings made by the trial court in support of its consecutive sentences. There were multiple offenses that took place over a period of time against the same victim, whom Hupp took advantage of while placed in a position of authority over her. The victim's statement indicated the seriousness of the offenses and their psychological impact, causing her to suffer depression, feel suicidal, and have a distrust in males. The facts support a finding that he poses a danger and caused significant harm, justifying the consecutive sentences. Hupp does not point to any specific reasons why consecutive sentences were not supported by the record but makes conclusory statements that a single term would be sufficient to punish him and protect the public.
{¶28} The second assignment of error is without merit.
{¶29} For the foregoing reasons, Hupp's sentence for Gross Sexual Imposition in the Lake County Court of Common Pleas is affirmed. Costs to be taxed against appellant.
JOHN J. EKLUND, P.J., EUGENE A. LUCCI, J., concur.