Opinion
23 CO 0038
07-15-2024
STATE OF OHIO, Plaintiff-Appellee, v. ADAM MICHAEL SAUNDERS, Defendant-Appellant.
Atty. Vito J. Abruzzino, Columbiana County Prosecutor and Atty. Shelley M. Pratt, Assistant Prosecutor, for Plaintiff-Appellee Atty. Rhonda G. Santha, for Defendant-Appellant
Criminal Appeal from the Court of Common Pleas of Columbiana County, Ohio Case No. 2021 CR 00605
Atty. Vito J. Abruzzino, Columbiana County Prosecutor and Atty. Shelley M. Pratt, Assistant Prosecutor, for Plaintiff-Appellee
Atty. Rhonda G. Santha, for Defendant-Appellant
BEFORE: Cheryl L. Waite, Carol Ann Robb, Mark A. Hanni, Judges.
OPINION AND JUDGMENT ENTRY
WAITE, J.
{¶1} Following jury trial, Appellant Adam Michael Saunders was found guilty of compelling prostitution, unlawful sexual conduct with a minor, possession of criminal tools, and engaging in prostitution. He was sentenced to a consecutive term of 48 months in prison. Appellant argues that the trial court erred by failing to order a presentence investigation report ("PSI"). Appellant does not cite any law in support of his argument and it is settled law in Ohio that it was within the court's discretion whether to order preparation of a PSI. Appellant also argues that consecutive sentences should not have been imposed. The record reflects that the court made the appropriate findings to impose consecutive sentences, and the sentence is not contrary to law. Lastly, Appellant argues that the state's sole witness should have been barred by operation of Crim.R. 16(K) and Evid.R. 702 regarding expert witnesses. However, the state's witness did not testify as an expert and the rules cited by Appellant did not disqualify him as a lay witness. Appellant's two assignments of error are overruled, and the judgment of the trial court is affirmed.
Facts and Procedural History
{¶2} On August 20, 2021, Appellant responded to an advertisement at a prostitution website known as Skip the Games. The ad was actually placed by Detective Dan Haueter of the East Palestine Police Department as part of an operation conducted in conjunction with the Mahoning Valley Human Trafficking Task Force. Det. Haueter's ad offered sexual services supposedly provided by a mother and her 14-year-old daughter, Tina. Det. Haueter posed as the mother. In Appellant's response to the ad, he acknowledged his belief that he was interacting with a mother and her underage daughter, and their alleged ages were made clear in subsequent text message conversations. Appellant asked about the cost of overnight visits with both mother and daughter. Appellant then requested to have sexual activity with the daughter, and arranged a face-to-face meeting.
{¶3} "Mother" stopped responding to Appellant's messages, but Appellant continued to send text messages to the cell phones he believed belonged to the mother and daughter. On September 10, 2021, Appellant texted "mother" asking for an overnight visit with the daughter and offering $400. Appellant also offered to use a condom or the morning-after pill to protect the daughter from getting pregnant. Det. Haueter, posing as the mother, did not reply.
{¶4} On September 17, 2021, Appellant again texted "mother," remarking that he saw "her" new post on Skip the Games. The following day, Appellant sent a text to "mother" stating that Appellant was in East Palestine, and asking for their location. Appellant had driven from Mercer, Pennsylvania, a 54-minute drive. Appellant also sent a photograph showing that he was at the Circle K gas station in East Palestine. Receiving no answer, Appellant went to East Palestine again on September 21, 2021 and sent another photo of the Circle K Gas Station.
{¶5} On September 24, 2021, Det. Haueter, posing as the mother, exchanged text messages with Appellant. A meeting was arranged in East Palestine. Appellant agreed to pay "mother" and "daughter" $400 to "hang out in lingerie" and do whatever they were comfortable with. The next visit would cost $800 for overnight sex with both of them. (6/20/23 Tr., p. 223.) Appellant also separately texted the supposed 14-year-old daughter. Det. Haueter, now posing as the daughter, requested that Appellant bring a can of Dr. Pepper soda when they met. Appellant stated that he would also bring marijuana.
{¶6} Det. Haueter told Appellant to meet at an apartment complex on Rebecca Street in East Palestine and to park across the street. Det. Haueter waited nearby conducting reconnaissance. Appellant drove by the arranged parking lot and parked about 100 yards away. He walked to the apartment holding a bag. Det. Haueter recognized Appellant from photos Appellant had sent. Det. Haueter then arrested Appellant and recovered $400 in currency, a can of Diet Dr. Pepper soda, marijuana, marijuana paraphernalia, and the cell phone Appellant used for all of his interactions with the alleged mother and daughter.
{¶7} Appellant was indicted on August 10, 2022 on one count of compelling prostitution pursuant to R.C. 2907.21 (A)(3), a third degree felony; one count of attempted unlawful sexual conduct with a minor under R.C. 2907.04(A), a fourth degree felony; possession of criminal tools, a fifth degree felony as per R.C. 2923.24(A); and one count of engaging in prostitution, R.C. 2907.231(B), a first degree misdemeanor.
{¶8} During an interview between Det. Haueter and Appellant, Appellant admitted that he "met" the mother and daughter on the Skip the Games website, that he knew the alleged mother was in her 30s and the alleged daughter was 14, that he was going to pay $400 for the first visit and more than that for an overnight visit, and that sex was probably going to occur on the overnight visit. (6/20/23 Tr., pp. 238-239.)
{¶9} Jury trial began on June 20, 2023. Det. Haueter testified about the sting operation. He described placing the prostitution ad, the many text message interactions he had with Appellant while posing as the mother and her daughter, and the circumstances of the arrest. He also testified about the interview he conducted with Appellant. The state submitted exhibits of text message exchanges, photographs (including a photo of the $400 Appellant was carrying when he was arrested), and the ad from the Skip the Games website.
{¶10} Appellant testified at trial. As part of his testimony he admitted that he had been convicted of felony manufacturing of marijuana in Pennsylvania. (6/20/23 Tr., p. 297.)
{¶11} The jury found Appellant guilty on counts one through four of the indictment. He was sentenced to thirty months in prison on count one, twelve months on count two, and six months on count three, to be served consecutively, for a total of forty-eight months in prison. He was also sentenced to 180 days in jail on count four, to be served concurrently. The final judgment of sentence was filed on June 22, 2023. The thirtieth day after the final appealable order was filed was a Saturday, giving Appellant two extra days to file the notice of appeal. This timely appeal was filed on July 24, 2023. Appellant raises two assignments of error on appeal.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT FAILED TO FOLLOW THE PURPOSES OF FELONY SENTENCING AS FOUND IN R.C. 2929.11 IN IMPOSING CONSECUTIVE SENTENCES AFTER A DENIAL OF APPELLANT'S REQUEST FOR A PRESENTENCE INVESTIGATION.
{¶12} Appellant raises two arguments under this assignment. First, Appellant contends that the trial court should have ordered a PSI before imposing a prison term, and more specifically, before imposing consecutive sentences. Appellant does not cite to any statute or other law that in any way requires a court to order preparation of a PS I before sentencing a defendant to a period of incarceration. The state responds to Appellant's arguments by citing to Crim.R. 32.2, which requires a PSI to be prepared only if a defendant will be sentenced to community control or probation.
{¶13} We have previously held that no PSI is required if the sentencing court does not impose community control or probation. State v. Bowman, 2004-Ohio-6372, ¶ 25 (7th Dist.); see also State v. Amos, 2014-Ohio-3160, ¶ 15. When a PSI is not required by statute or criminal rule, it is within the trial court's discretion whether or not to order the preparation of a PSI. State v. Thompson, 2010-Ohio-3278, ¶ 98 (7th Dist.). Appellant implies that the court abused its discretion in this matter when it failed to order a PSI. "The term 'abuse of discretion' connotes more than an error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." State v. Adams, 62 Ohio St.2d 151, 157 (1980).
{¶14} Appellant contends that the court simply did not know enough about Appellant or about his prior conviction in Pennsylvania to adequately prepare for immediate sentencing. The trial judge determined otherwise. Appellant testified in this case and admitted that he searched websites listing underage girls who are available for sexual encounters; that he persisted in searching for escorts on many websites; and that he repeatedly sent messages to persons he believed were a 14-year-old girl and her mother, asking to pay them for sex. Appellant twice appeared at a location where he hoped to meet them prior to the arranged meeting on September 24, 2021. Both Detective Haueter's and Appellant's testimony revealed persistent and repeated behavior by Appellant to pay for sex and to have sex with an underage girl.
{¶15} Appellant, through his own testimony, revealed that he had been convicted of a felony in Pennsylvania involving the manufacture of marijuana. (6/20/23 Tr., p. 297.) Appellant also admitted that he had similarly visited prostitution websites prior to committing the crimes for which he was being tried. In other words, as part of his own testimony at trial, he admitted to prior criminal behavior and that he had a felony conviction. The prosecutor mentioned in closing argument that the state was not aware of some of Appellant's criminal activity prior to his testimony at trial. (6/20/23 Tr., pp. 435-436.) Appellant's counsel noted Appellant's probation status during closing arguments. (6/20/23 Tr., p. 443.) The trial judge proceeded immediately to sentencing in this case because he determined there was enough information in the record, particularly from Appellant's own testimony, to support any sentence that would be imposed. (6/20/23 Tr., p. 440.)
{¶16} There is nothing in the record that would lead us to conclude that the trial court abused its discretion in denying Appellant's request for a PSI. To the contrary, the record fully supports the court's decision as reasonable and well-considered.
{¶17} Appellant's second argument is that the court should not have imposed consecutive sentences. Appellant relies on essentially the same argument: that the court did not have the benefit of a PSI to support consecutive sentences and that there was insufficient evidence of his prior conviction in Pennsylvania to use it in support of consecutive sentencing.
{¶18} A court of appeals is limited in its review of a felony sentence. "Ordinarily, appellate courts defer to trial courts' broad discretion in making sentencing decisions[.]" State v. Rahab, 2017-Ohio-1401, ¶ 10. Appellate review of a criminal sentence is governed by R.C. 2953.08, which reflects the deference that appellate courts apply to trial court sentencing decisions. State v. Gwynne, 2023-Ohio-3851, ¶ 11. Pursuant to R.C. 2953.08(G)(2)(a), "an 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 court's findings under relevant statutes or that the sentence is otherwise contrary to law." State v. Marcum, 2016-Ohio-1002, ¶ 1. "Nothing 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, 2020-Ohio-6729, ¶ 42.
{¶19} An R.C. 2953.08(G)(2) review includes a review of consecutive sentences. A reviewing court may overturn the imposition of consecutive sentences only where the court clearly and convincingly finds that the record does not support the sentencing court's findings under R.C. 2929.14(C)(4), or the sentence is otherwise contrary to law. State v. Pendland, 2021-Ohio-1313, ¶ 40 (7th Dist.); State v. Bonnell, 2014-Ohio-3177, ¶ 30.
{¶20} 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 a consecutive sentence is necessary to protect the public from future crime or to punish the offender; that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public; and if the court also finds any of the factors in R.C. 2929.14(C)(4)(a)-(c) are present. Those factors include the following:
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶21} Other than the court's failure to order a PSI, which has already been discussed, Appellant merely argues in his challenge to his consecutive sentences that the court did not have enough information to support consecutive sentences. Appellant contends that this record does not show the consecutive sentences are proportionate to the crimes committed. The trial court specifically found at sentencing, and stated in the final judgment of sentence, that "the sentence is not disproportionate to the type of criminal conduct involved." (6/22/23 JE., p. 2.)
{¶22} Although the trial court is required to make three specific findings to support consecutive sentences, it is not required to state any reasons underlying these findings, so long as it is apparent that the court engaged in the proper analysis. State v. Williams, 2015-Ohio-4100, ¶ 33 (7th Dist.), citing State v. Bonnell, 2014-Ohio-3177, ¶ 37. Appellant does not contend that the court failed to make the requisite consecutive sentence findings. It is apparent from both the sentencing transcript and the final judgment of sentence that the court did make the appropriate findings and engaged in the appropriate reasoning. The sentencing transcript contains pages of explanation from the trial judge regarding this sentence, including the danger to the public (particularly to children) posed by Appellant's crimes, his persistence in pursuing the supposed mother and daughter for paid sex, Appellant's own testimony implicating him in the crimes and his admission to a prior felony conviction in Pennsylvania, the judge's knowledge of the Skip the Games website through many prior cases, Appellant's lack of shame and remorse for his crimes, the very high likelihood of recidivism, and that Appellant was under a sanction from another court at the time of this crime.
{¶23} Regarding Appellant's status as a probationer when this crime occurred, while it is not altogether clear how this fact was initially introduced at trial, both the prosecutor and Appellant's counsel confirmed it, and Appellant himself testified about the felony he committed in Pennsylvania. That Appellant was on probation in another state was mentioned at least eight times at trial, and was never objected to or questioned. This record supports that the trial court made the requisite findings and engaged in the proper analysis to impose consecutive sentences. Appellant's first assignment of error is without merit and is overruled.
ASSIGNMENT OF ERROR NO. 2
APPELLANT FAILED TO RECEIVE A FAIR TRIAL FOR THE REASON THAT APPELLEE PRESENTED THE SOLE WITNESS AGAINST HIM IN DIRECT CONTRAVENTION OF OHIO CRIMINAL RULE 16(K) AND WITHOUT TRIAL COUNSEL OBJECTION.
{¶24} Appellant contends that Detective Haueter was not properly qualified as an expert witness and should not have been permitted to testify at trial. Appellant cites Crim.R. 16(K), which states:
An expert witness for either side shall prepare a written report summarizing the expert witness's testimony, findings, analysis, conclusions, or opinion, and shall include a summary of the expert's qualifications. The written report and summary of qualifications shall be subject to disclosure under this rule no later than twenty-one days prior to trial, which period may be modified by the court for good cause shown, which does not prejudice any other party. Failure to disclose the written report to opposing counsel shall preclude the expert's testimony at trial.
{¶25} Appellant also cites Evid.R. 702, which states in relevant part:
A witness may testify as an expert if all of the following apply:
(A) The witness' testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons;
(B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony;
(C) The witness' testimony is based on reliable scientific, technical, or other specialized information.
{¶26} Appellee responds that Detective Haueter did not testify as an expert witness, hence he was not required to follow the requirements of Crim.R. 16(K). Nothing in the record indicates that Det. Haueter was being called as an expert. He was the officer who conducted the sting operation, and he testified about his investigation. As part of his testimony, he also gave lay testimony regarding his knowledge and training in sexual trafficking crimes, his understanding of the language sexual predators use, and discussed techniques which provide proof of knowledge, intent, and lack of mistake on the part of the perpetrators, such as asking them to bring a doll or a can of soda for the child victim. None of this supports a conclusion that he was called as an expert witness or provided expert testimony.
{¶27} The only case cited by Appellant, State v. Calhoun, 2017-Ohio-8488 (8th Dist.), actually refutes Appellant's argument. In Calhoun, the state requested that an officer be admitted as an expert witness in a case also involving a sting operation of a prostitution website. The officer was not the one who conducted the sting, but he did conduct a forensic investigation of the defendant's cell phone. The officer submitted an expert witness report prior to trial, but it did not contain a summary of his testimony, findings, analysis, conclusions, or opinion, and Calhoun challenged the report on that basis. The Eighth District Court of Appeals concluded that even though the officer would have been excluded as an expert based on the failures in his report, he was nonetheless permitted to testify as a lay witness under Evid.R. 701. Calhoun cited State v. McKee, 91 Ohio St.3d 292, 297 (2001), which held:
Although these cases are of a technical nature in that they allow lay opinion testimony on a subject outside the realm of common knowledge, they still fall within the ambit of the rule's requirement that a lay witness's opinion be rationally based on firsthand observations and helpful in determining a fact in issue. These cases are not based on specialized knowledge within the scope of Evid.R. 702, but rather are based upon a layperson's personal knowledge and experience.
{¶28} In the instant case, Detective Haueter testified about his involvement in the sting operation; his interview with Appellant; his knowledge, training, and experience with prostitution websites and human trafficking; and basic detective technique and evidence gathering. We previously recognized: "Appellate courts have determined that some testimony offered by officers/detectives is lay person witness testimony even though it is based on the officer/detective's specialized knowledge." State v. Johnson, 2014-Ohio-1226, ¶ 57 (7th Dist.). It is clear Det. Haueter could have been an expert witness in this case based on his extensive training with the Mahoning Valley Human Trafficking Task Force, his training at the Ohio Police Association Training Academy, and his experience in over 700 internet crimes against children. Nevertheless, he was not called in this matter as an expert and did not testify as one. All of his testimony was admissible as lay witness testimony. Appellant's second assignment of error is overruled.
Conclusion
{¶29} Appellant argues that the trial erred by failing to order preparation of a presentence investigation report (PSI). It was within the court's discretion whether to order such a report and Appellant does not cite to anything in the record showing the court abused its discretion in this matter. Appellant also argues that consecutive sentences should not have been imposed. This record reveals the court made the appropriate findings to impose consecutive sentences and the sentence is not contrary to law. Lastly, Appellant argues that the state's sole witness should not have been admitted as an expert. The state's witness did not testify as an expert in this case and the rules cited by Appellant did not prevent him from testifying as a lay witness, particularly since he was the officer who conducted the sting operation leading to Appellant's arrest and conviction. Appellant's two assignments of error are overruled, and his conviction and sentence are affirmed.
Robb, P.J. concurs.
Hanni, J. concurs.
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 Columbiana County, Ohio, is affirmed. Costs waived.
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.