State v. Art

[Cite as State v. Art, 2025-Ohio-5313.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


  STATE OF OHIO                                          Case No. CT 2025-0051

          Plaintiff - Appellee                           Opinion And Judgment Entry

  -vs-                                                   Appeal from the Muskingum County
                                                         Court of Common Pleas, Case No. CP
  SHANE ART                                              2024-0128

          Defendant - Appellant                          Judgment: Affirmed

                                                         Date of Judgment Entry: November 24,
                                                         2025



BEFORE: WILLIAM B. HOFFMAN, P.J., ROBERT G. MONTGOMERY, J., KEVIN W.
POPHAM, J.; Appellate Judges

APPEARANCES: Joseph A. Palmer for Plaintiff-Appellee; Christopher Bazeley, For
Defendant-Appellant


                                                 OPINION

Popham, J.,

         {¶1}    Appellant Shane Art (“Art”) appeals from the judgment of the Muskingum

County Court of Common Pleas convicting him of two counts of Gross Sexual Imposition,

victim    under      thirteen    years    old,   third-degree   felonies   in   violation   of   R.C.

2907.05(A)(4)/(C)(2). Art contends that the evidence presented at trial was insufficient to

sustain his convictions, that his convictions are against the manifest weight of the

evidence and that his sentence was impermissibly enhanced in retaliation for maintaining

his innocence. For the reasons that follow, we affirm the judgment of the trial court.
                                           Facts and Procedural History

         {¶2}     This matter arose on February 22, 2024, when Art was indicted upon two

counts of gross sexual imposition involving a victim less than thirteen years old. The

matter proceeded to a jury trial, which commenced on March 4, 2025. The evidence at

trial revealed the following sequence of events.

         The Initial Disclosure

         {¶3}     The State first introduced testimony from B.K., the paternal grandfather of

the victim E.D. (b. Dec. 14, 2014)1. 1T. at 177, 220.2 B.K. testified that on October 18,

2023, he picked E.D. up from her after-school latchkey program and immediately noticed

that she appeared troubled and frightened. Id. at 180, 186. Concerned by her demeanor,

B.K. asked E.D. what was wrong. When she disclosed the reason for her distress, B.K.

became alarmed. Id. at 187.

         {¶4}     B.K. testified that he promptly telephoned his daughter, M.K., who is E.D.’s

mother, as she was getting off work. Id. The family met at M.K.’s apartment and, acting

quickly, proceeded together to the police station to report E.D.’s disclosure. Id. at 188.

Later that evening, at the direction of the police, the family accompanied E.D. to

Nationwide Children’s Hospital for further evaluation. Id. at 189.

         Forensic Interview

         {¶5}     On the evening of October 19, 2023, Melissa Kapp, a social worker and

certified forensic interviewer at Nationwide Children’s Hospital, conducted a forensic



          1 Recognizing the heightened privacy interests of minors, we identify the parents and minors only

by their initials in accord with Sup.R. 1(A), 44(C), 44(H) and 45(D); S.Ct.Prac.R. 3.12; R.C. 2303.901; Juv.R.
4.
          2 For clarity, the transcript of Art’s jury trial will be referred to as “__T.__” signifying the volume and

page number.
interview of E.D. 1T. at 261, 270, 280, 291; State’s Exhibit 2-1. Kapp explained that such

interviews are conducted with suspected child victims of sexual abuse to aid medical

diagnosis and treatment. Id. at 270, 272, 285. Kapp reviewed E.D.’s statements, prepared

a report including relevant medical records (State’s Exhibits 1 and 1-2), and recorded the

interview, which was played for the jury over Art’s objection. 1T. at 283, 294; State’s

Exhibit 2-1.

       {¶6}    During the interview with Kapp, E.D. disclosed that Art lived in the home

with her and her mother and that, in the past, he had struck her on the bottom and mouth

with his hand. 1T. at 295. Although initially reluctant to discuss the most recent incident,

E.D. identified Art as the assailant. Id. at 296. Kapp testified that E.D. disclosed “[Art]

came into her room last night…he put either his hand or his no-no [penis] on her bug

[vagina] on top of her clothes.” Id. at 297. While E.D. did not see Art’s penis, she reported

feeling something round and disclosed that he also touched her buttocks beneath her

underwear. Id. E.D. additionally stated that she believed Art filmed the incident because

she saw his phone during the assault. Id.

       Physical Exam

       {¶7}    Jessica Newland, a Pediatric Sexual Assault Nurse Examiner (“PSANE”),

conducted the medical examination of E.D. and collected biological evidence. 2T. at 329.

She reviewed the forensic interview to guide her assessment and collected oral, vaginal,

and anal swabs, as well as a DNA reference standard from E.D. 2T. at 337-338; State’s

Exhibits 5, 6, 12, 13. Newland was informed that Art was the alleged assailant. 2T. at 341.

       {¶8}    During the examination, E.D. denied any oral, vaginal, or anal penetration

and denied that Art ejaculated. 2T. at 343-344. She reported fondling over and under her
clothing, including on her right buttock, prompting Newland to obtain a swab from that

area. Id. at 346, 355. Although Newland observed no physical trauma, she explained that

the absence of injury does not preclude sexual contact, particularly in cases involving

non-penetrative fondling. Id. at 359.

       Testimony of M.K. – E.D.’s Mother

       {¶9}   M.K., the mother of the minor victim E.D., testified that she first met Art in

2019. 1T. at 222. Although the couple ended their relationship in November 2022, they

reconciled in July 2023, at which point Art moved into the apartment shared by M.K. and

E.D. Id. at 223.

       {¶10} M.K. further testified about Art’s family circumstances. She testified that

Art’s brother is deceased, and that Art has two sons who reside in Coshocton, Ohio. 1T.

at 226-227. According to M.K., neither of Art’s sons had ever spent the night at her

apartment. Id. at 227. She testified that she last saw Art’s father sometime between the

years of 2021 and 2022. Id.

       {¶11} Addressing E.D.’s background, M.K. testified that E.D. has exhibited

behavioral challenges and may suffer from Attention Deficit/Hyperactivity Disorder

(“ADHD”). 1T. at 257. M.K. recalled that in the past E.D. claimed to have seen

pornography on Art’s phone; however, no evidence was ever found to corroborate that

allegation. Id. at 253, 260.

       Police Investigation of Art

       {¶12} Detective Bryan Ruff of the Zanesville Police Department testified that he

contacted Art concerning the allegations. 2T. at 378. Art voluntarily came to the police
department. Id. at 378-379. Detective Ruff testified that an examination of Art’s cell phone

revealed no pictures of E.D. or pornography of any kind. Id. at 383; State’s Exhibit 19.

       {¶13} Detective Ruff testified that Art voluntarily consented to give a DNA sample

to the police. 2T. at 380; State’s Exhibit 34. The DNA sample obtained from Art served as

the reference for comparison with the evidence collected from E.D. 2T. at 379, 380;

State’s Exhibits 14, 34.

       DNA Analysis

       {¶14} The State presented forensic DNA evidence through Amy Wanken and

Logan Schepeler, scientists with the Ohio Bureau of Criminal Investigation (“BCI”). 2T at

388-389, 423. Wanken testified that she conducted DNA testing on the evidence and

prepared two reports summarizing her findings. Id. at 395. She explained that no DNA

analysis was performed on the oral or anal swabs and that the vaginal swab revealed no

DNA profile other than E.D.’s own. 2T. at 404.

       {¶15} Schepeler, a BCI forensic DNA scientist, explained the additional testing

performed. 2T. at 423. Schepeler distinguished between two complementary types of

DNA testing. He explained that Short Tandem Repeat (“STR”) testing identifies both male

and female DNA in a sample and can generate a complete DNA profile capable of being

attributed to a specific individual. Id. at 426, 429-430.

       {¶16} Schepeler further testified that Y-chromosome STR (“YSTR”) testing

focuses exclusively on the Y chromosome, which is passed unchanged along the paternal

line. Because all paternal male relatives share an identical Y chromosome, YSTR

analysis cannot pinpoint a single individual. Instead, a YSTR profile may originate from
the suspect or any male relative within the same paternal lineage, such as a father,

brother, or son. 2T. at 430-431.

       {¶17} Crucially, YSTR testing of the swab collected from E.D.’s right buttock

produced a profile consistent with Art and his paternal male relatives. 2T. at 438-439,

441; State’s Exhibit 32. This evidence directly linked biological material recovered from

E.D. to Art’s paternal lineage.

       {¶18} The defense rested without presenting evidence.

       Verdict and Sentence

       {¶19} The jury found Art guilty of two counts of gross sexual imposition.

Sentencing was deferred pending the completion of a pre-sentence investigation report.

(“PSI”).

       {¶20} On April 29, 2025, the trial court conducted a sentencing hearing. The court

reviewed the PSI, heard from the state, the victim’s mother, defense counsel and Art. The

court sentenced Art to a sixty-month sentence on Count I and a sixty-month sentence on

Count II. Sent. T. at 19. The court ordered the sentences to run concurrently. Id. Art was

also sentenced to a mandatory 5-year period of post-release control and labeled a Tier II

sexual offender.

                                     Assignments of Error

       {¶21} Art raises two assignments of error,

       {¶22} “I. ART'S CONVICTIONS ARE BASED UPON LEGALLY INSUFFICIENT

EVIDENCE AND AGAINST THE WEIGHT OF THE EVIDENCE PRESENTED AT

TRIAL.”
      {¶23} “II. THE TRIAL COURT ERRED WHEN IT CHOSE TO ENHANCE ART'S

SENTENCE BASED UPON HIS MAINTAINING HIS INNOCENCE THROUGHOUT THE

PENDENCY OF THE CASE.”

                                               I.

      {¶24} Art argues that his convictions are unsupported by sufficient evidence, and

further that his convictions are against the manifest weight of the evidence. We disagree.

      {¶25} Specifically, he contends that the State failed to call E.D. as a witness, E.D.

has a history of false allegations, that the DNA test results do not definitively show the

sample came from Art, and his DNA could have been transferred to E.D. by sitting on a

commonly used toilet seat or from a commonly used bath towel.

               Standard of Appellate Review – Sufficiency of the Evidence

      {¶26} The Sixth Amendment guarantees the right to trial by an impartial jury, and

the Due Process Clause requires the State to prove every element of the charged offense

beyond a reasonable doubt. United States v. Gaudin, 515 U.S. 506, 509-510 (1995);

Hurst v. Florida, 577 U.S. 92 (2016). We review a challenge to the sufficiency of the

evidence de novo because it raises a question of law. State v. Walker, 2016-Ohio-8295,

¶ 30; State v. Jordan, 2023-Ohio-3800, ¶ 13.

      {¶27} In reviewing a sufficiency challenge, we examine the statutory elements of

the offense in light of the evidence presented at trial. State v. Richardson, 2016-Ohio-

8448, ¶ 13.   Our inquiry does not involve assessing witness credibility or weighing

conflicting testimony. State v. Jenks, 61 Ohio St.3d 259, paragraph two of the syllabus,

superseded by constitutional amendment on other grounds as stated in State v. Smith,

80 Ohio St.3d 89, 102 n.4 (1997); Walker at ¶ 30. Rather, we ask whether, viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the offense proven beyond a reasonable doubt. State v.

Murphy, 91 Ohio St.3d 516, 543 (2001), citing Jenks; see also Walker at ¶ 31; State v.

Pountney, 2018-Ohio-22, ¶ 19.

       {¶28} A conviction will not be reversed for insufficient evidence unless reasonable

minds could reach only one conclusion—acquittal. State v. Ketterer, 2006-Ohio-5283, ¶

94, quoting State v. Dennis, 79 Ohio St.3d 421, 430 (1997); accord State v. Montgomery,

2016-Ohio-5487, ¶ 74.

       Gross Sexual Imposition

       {¶29} To sustain a conviction for gross sexual imposition under R.C.

2907.05(A)(4)/(C)(2), the State was required to prove beyond a reasonable doubt that

Art:

              (1) Had sexual contact with another.

              (2) The other person is less than thirteen years of age, whether or

       not the offender knows the age of that person.

       Definition of Sexual Contact

       {¶30} R.C. 2907.01(B) defines “sexual contact” as “any touching of an erogenous

zone of another, including without limitation the thigh, genitals, buttock, pubic region, or,

if the person is a female, a breast, for the purpose of sexually arousing or gratifying either

person.”

       {¶31} Art first contends that because E.D. did not testify at trial, he was deprived

of the opportunity to confront and cross-examine his accuser. We disagree.
       Confrontation Clause

       {¶32} The Sixth Amendment to the United States Constitution guarantees a

criminal defendant the right to be confronted with the witnesses against him. The primary

purpose of this guarantee is to prevent the use of unchallenged testimony to secure a

conviction—a safeguard that applies in both federal and state prosecutions. Mattox v.

United States, 156 U.S. 237, 242 (1895); Crawford v. Washington, 541 U.S. 36, 42, 53-

54 (2004); see also State v. Davis, 2024-Ohio-1504, ¶ 24 (5th Dist.). The right of

confrontation includes the opportunity to have a witness physically appear in court, testify

under oath, and be subject to cross-examination. Maryland v. Craig, 497 U.S. 836, 845-

846 (1990).

       {¶33} Here, however, E.D.’s statements were not presented through her live

testimony but were admitted via her forensic interview and the testimony of the

interviewer, Melissa Kapp. This raises the question of whether those statements were

admissible despite the absence of direct confrontation.

       Hearsay

       {¶34} Ordinarily, such statements would be inadmissible as hearsay—an out-of-

court statement offered for the truth of the matter asserted. Evid.R. 801(C). The exclusion

of hearsay protects the integrity of trials by ensuring that only testimony subject to the

safeguards of in-court proceedings—such as an oath, observation of the witness’s

demeanor, and cross-examination—can be considered by the factfinder. Evid.R. 802;

State v. Steffen, 31 Ohio St.3d 111, 119 (1987). As the United States Supreme Court has

explained, hearsay carries inherent risks because the declarant may be lying,
misremembering, or mistaken, and the listener may misunderstand. Williamson v. United

States, 512 U.S. 594, 598 (1994).

      {¶35} Despite this general prohibition, Evid.R. 803(4) recognizes a longstanding

exception for statements made for medical diagnosis or treatment. Such statements are

inherently more reliable because medical professionals depend upon accurate patient

histories for effective diagnosis and care. Thus, statements that meet the requirements

of Evid.R. 803(4) may be admitted even if the declarant does not testify. See White v.

Illinois, 502 U.S. 346, 356-357 (1992); State v. Davis, 2024-Ohio-1504, ¶ 31 (5th Dist.).

      The Arnold Framework

      {¶36} The Supreme Court of Ohio in State v. Arnold, 2010-Ohio-2742, addressed

the precise issue presented here: the admissibility of statements made during interviews

at child-advocacy centers in the face of a Confrontation Clause challenge. The Court

recognized that these interviews serve dual purposes:

                1. To gather forensic information for investigation and potential

      prosecution; and

                2. To elicit information necessary for the medical diagnosis and

      treatment of the child victim.

Arnold, ¶ 33.

      {¶37} To balance these competing purposes, the Court required a careful,

statement-by-statement analysis and held that statements describing investigative details

- such as the layout of the room, the clothing involved, or the appearance of the accused

- are primarily forensic and, therefore, inadmissible under Evid.R. 803(4). Arnold, 2010-

Ohio-2742, ¶ 34. By contrast, statements describing the acts of abuse - such as touching,
penetration, or oral contact - are critical to medical evaluation and thus admissible under

the medical-diagnosis exception. Id. at ¶¶ 37-38.

       {¶38} Importantly, the Court stressed that each statement must be evaluated on

its own terms, admitting those statements that further medical purposes while excluding

those that do not. Arnold, 2010-Ohio-2742, ¶ 42. The mere fact that law enforcement was

present during the interview, or later used the statements in prosecution, does not render

medically necessary statements inadmissible. Id. at ¶ 43.

       {¶39} The Court’s reasoning in Arnold has been consistently followed. A child’s

statements to a social worker regarding sexual abuse remain admissible under Evid.R.

803(4) when made for medical diagnosis or treatment. State v. Muttart, 2007-Ohio-5267,

¶ 39; State v. Keene, 2023-Ohio-4761, ¶ 42 (5th Dist.). In Arnold itself, the child’s

statements were made to a social worker at the Center for Child and Family Advocacy at

Nationwide Children’s Hospital. Arnold, 2010-Ohio-2742, ¶ 1.

       {¶40} In Muttart, the Court further identified factors for determining whether a

child’s statements were made for medical purposes, including whether the interviewer

used leading questions, whether the child had a motive to fabricate, the child’s

understanding of the importance of telling the truth, the child’s age, the consistency of the

child’s statements, and whether the interview followed established protocols. Muttart,

2007-Ohio-5267 at ¶ 49. Ultimately, the credibility of such statements remains subject to

the adversarial process at trial. Id. at ¶ 50.

       Application to the Present Case

       {¶41} The foregoing principles compel the conclusion that the trial court acted

within its discretion in admitting much of E.D.’s forensic interview. Kapp, a social worker
and forensic interviewer with Nationwide Children’s Hospital, testified that her role in the

emergency department is to conduct forensic interviews of suspected child sexual-abuse

victims to aid in medical diagnosis and treatment. 1T. at 270, 272, 285.

       {¶42} E.D.’s statements that Art rubbed his penis on her vagina over her clothing

and that he touched her buttocks under her clothing with his hand were plainly necessary

for medical assessment and, therefore, admissible under Evid.R. 803(4). These

statements were non-testimonial and did not violate Art’s confrontation rights.

       {¶43} Other portions of the interview - such as E.D.’s descriptions of Art hitting her

on her bottom and on her mouth - did not serve a medical purpose under Arnold and,

therefore, should not have been admitted.

       {¶44} Nevertheless, even assuming that these latter statements were admitted in

error, any such error was harmless. Under the three-part analysis in State v. Harris, 2015-

Ohio-166, ¶ 37, an appellate court examines:

              1. Whether the error prejudiced the defendant;

              2. Whether it was harmless beyond a reasonable doubt; and

              3. Whether, after excising the inadmissible evidence, the remaining

       evidence independently establishes guilt beyond a reasonable doubt.

See also State v. Arnold, 2016-Ohio-1595, ¶ 50; State v. Boaston, 2020-Ohio-1061, ¶ 63.

       {¶45} Applying that framework, we are convinced beyond a reasonable doubt that

the inadmissible portions of E.D.’s interview did not influence the verdict. See State v.

Aeschilmann, 2014-Ohio-4462, ¶¶ 95-96 (5th Dist.).

       {¶46} Even without the challenged statements, the remaining evidence - when

viewed in the light most favorable to the prosecution - amply supports the jury’s finding
that Art engaged in sexual contact with E.D., knowing she was under thirteen, for the

purpose of sexual arousal or gratification. Thus, the State carried its burden on each

element of gross sexual imposition.

       Alleged Unreliability of E.D.’s Statements and DNA Evidence

       {¶47} Art next asserts that E.D.’s allegations are unreliable. He argues that her

credibility is undermined because she allegedly fabricated having seen pornography on

his phone in the past and further claimed that he recorded the charged incident with his

cell phone. Appellant’s Brief at 3. Art also contends that the DNA evidence is inconclusive,

theorizing that his DNA could have been transferred to E.D.’s right buttock through

innocent contact - such as her sitting on a commonly used toilet seat or using a shared

bath towel. Id.

                  Standard of Review — Manifest Weight of the Evidence

       {¶48} A manifest-weight challenge attacks the persuasive value of the evidence

rather than its legal sufficiency. Eastley v. Volkman, 2012-Ohio-2179, ¶ 19. As the

Supreme Court of Ohio explained, the inquiry focuses on “the inclination of the greater

amount of credible evidence, offered in a trial, to support one side of the issue rather than

the other.” (Emphasis deleted.) State v. Thompkins, 78 Ohio St.3d 380, 387 (1997),

superseded by constitutional amendment on other grounds as stated in State v. Smith,

80 Ohio St.3d 89, 102 n.4 (1997); State v. Martin, 2022-Ohio-4175, ¶ 26.

       {¶49} When reviewing a claim that a conviction is against the manifest weight of

the evidence, the appellate court must determine whether the jury clearly lost its way in

resolving conflicts in the evidence, creating a manifest miscarriage of justice - even where
the evidence is legally sufficient. Thompkins at 387; State v. Issa, 93 Ohio St.3d 49, 67

(2001).

       {¶50} This review is necessarily deferential to the jury’s findings. Juries occupy

the unique position of observing the witnesses’ demeanor, gestures, tone, and other

nonverbal cues that cannot be fully captured in the record but often prove decisive in

evaluating credibility. Eastley at ¶ 21; Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d

77, 80 (1984).

       {¶51} The Supreme Court of Ohio has instructed appellate courts to review the

entire record, weigh the evidence and reasonable inferences, assess witness credibility,

and determine whether, in resolving conflicts in the evidence, the jury “clearly lost its way

and created such a manifest miscarriage of justice that the conviction must be reversed.”

State v. Jordan, 2023-Ohio-3800, ¶ 17. In performing this review, the appellate court acts

as a “thirteenth juror” and may overturn a verdict if it disagrees with the trier of fact’s

conclusion. Id., citing State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist. 1983); State v.

Sheppard, 2025-Ohio-2747, ¶ 24 (5th Dist.).

       {¶52} Nevertheless, a conviction should be reversed on manifest-weight grounds

only in “the exceptional case in which the evidence weighs heavily against the conviction.”

Thompkins, at 387. The Ohio Constitution further requires that all three judges on the

appellate panel must concur in such a reversal. Ohio Const., Art. IV, § 3(B)(3); Bryan-

Wollman v. Domonko, 2007-Ohio-4918, ¶¶ 2-4, citing Thompkins, syllabus ¶ 4.

       Credibility Determinations and Circumstantial Evidence

       {¶53} It is well settled that the jury, as the trier of fact, is charged with evaluating

the evidence, determining witness credibility, and resolving conflicts in testimony. The
jury may consider conflicting evidence in determining credibility and the persuasiveness

of the account of a witness by either discounting or otherwise resolving the discrepancies.

State v. Taylor, 2015-Ohio-2490, ¶ 34 (10th Dist.), citing Midstate Educators Credit Union,

Inc. v. Werner, 2008-Ohio-641, ¶ 28 (10th Dist.); State v. Ashcraft, 2023-Ohio-2378, ¶ 25

(5th Dist.).

       {¶54} Inconsistencies in testimony alone do not render a conviction against the

manifest weight of the evidence. State v. Craig, 1999 WL 29752 (10th Dist. Mar. 23,

2000), citing State v. Nivens, 1996 WL 284714 (10th Dist. May 28, 1996). “‘The finder of

fact can accept all, part or none of the testimony offered by a witness, whether it is expert

opinion or eyewitness fact, and whether it is merely evidential or tends to prove the

ultimate fact.’” State v. Petty, 2017-Ohio-1062, ¶ 63 (10th Dist.), quoting State v. Mullins,

2016-Ohio-8347, ¶ 39 (10th Dist.); see also State v. Davis, 2024-Ohio-1504, ¶ 60 (5th

Dist.); State v. Brunner, 2017-Ohio-2618, ¶ 22 (5th Dist.).

       {¶55} In other words, “[w]hen there exist two fairly reasonable views of the

evidence or two conflicting versions of events, neither of which is unbelievable, it is not

our province to choose which one we believe.” State v. Dyke, 2002-Ohio-1152, ¶ 13 (7th

Dist.), citing State v. Gore, 131 Ohio App.3d 197, 201 (7th Dist. 1999); State v. Snider,

2012-Ohio-2183, ¶ 24 (5th Dist.); Davis, 2024-Ohio-1504, ¶ 61.

       {¶56} Further, the State’s reliance on circumstantial evidence does not weaken

its case. The Supreme Court of Ohio has long held that circumstantial evidence carries

the same probative force as direct evidence. State v. Jenks, 61 Ohio St.3d 259, 272

(1991), paragraph one of the syllabus, superseded on other grounds by constitutional

amendment as recognized in State v. Smith, 80 Ohio St.3d 89, 102 n.4 (1997).
       Application to the Present Case

       {¶57} In this case, the jury had the benefit of watching E.D.’s forensic interview in

real time, allowing jurors to observe her demeanor, tone, and responsiveness firsthand.

They could also assess the interviewer’s conduct, including any potential bias or influence

in the questioning. The jury was therefore uniquely positioned to evaluate the reliability of

E.D.’s disclosures.

       {¶58} The defense’s theory that the DNA evidence was the product of incidental

transfer from household items was presented to the jury. The jurors, acting within their

role as the sole judges of credibility, were free to weigh that explanation against the totality

of the evidence, including the testimony of expert witnesses, and to reject it if they found

it unconvincing.

       {¶59} Having independently reviewed the entire record, weighed the evidence

and reasonable inferences, and considered the credibility of the witnesses as a “thirteenth

juror,” we find no compelling indication that the jury lost its way or created a manifest

miscarriage of justice.

       {¶60} Art’s first assignment of error is overruled.

                                                  II.

       {¶61} Art argues in his second assignment of error that the trial court imposed the

maximum sentence of sixty months on each count of gross sexual imposition because he

maintained his innocence and declined to express remorse at sentencing. Art points to

the following statement of the trial judge made during the sentencing hearing,

              And I understand apparently you’re maintaining your innocence here

       and that’s fine, but along with that goes you show absolutely no remorse
       whatsoever, zero as far as I can tell. So that leads me to believe there

       would be recidivism.

Sent. T. at 18.

                   Standard of Appellate Review – Maximum Sentences

       {¶62} Under R.C. 2953.08(A)(1), a defendant may appeal a maximum sentence

as of right. Pursuant to R.C. 2953.08(F), we review the entire record, including oral and

written statements, and the presentence investigation report. See State v. Jones, 2020-

Ohio-6729, ¶ 36; State v. Howell, 2015-Ohio-4049, ¶ 31 (5th Dist.).

       {¶63} An appellate court may modify or vacate a sentence if it clearly and

convincingly finds that the record does not support the trial court’s findings under certain

statutory provisions, or that the sentence is otherwise contrary to law. R.C. 2953.08(G)(2);

State v. Bonnell, 2014-Ohio-3177, ¶ 28. A sentence is “contrary to law” if it violates a

statute. Jones at ¶ 34. “Clear and convincing evidence” is that which produces a firm

belief or conviction. Cross v. Ledford, 161 Ohio St. 469, 477 (1954).

       {¶64} An appellate court may not modify a sentence simply because it disagrees

with the trial court’s weighing of R.C. 2929.11 and R.C. 2929.12 factors. Jones at ¶ 39.

However, if a sentence is based on factors extraneous to those statutes, it is contrary to

law and reviewable. State v. Bryant, 2022-Ohio-1878, ¶ 22.

       Purposes and Principles of Felony Sentencing - R.C. 2929.11

       {¶65} R.C. 2929.11(A) provides that felony sentences must be reasonably

calculated to achieve the two overriding purposes of felony sentencing: (1) to protect the

public from future crime by the offender and others, and (2) to punish the offender using

the minimum sanctions the court determines will accomplish those purposes. In doing so,
the trial court must consider the need to incapacitate the offender, deter future crime by

the offender and others, rehabilitate the offender, and provide restitution to the victim, the

public, or both.

       {¶66} In addition, R.C. 2929.11(B) requires that a sentence be commensurate

with, and not demeaning the seriousness of, the offender’s conduct and its impact on the

victim, and consistent with sentences imposed for similar crimes committed by similar

offenders.

       Seriousness and Recidivism – R.C. 2929.12

       {¶67} R.C. 2929.12 provides guidance regarding the seriousness of the offense

and the likelihood of recidivism. Subsections (B) and (C) list factors indicating whether

the offender’s conduct is more or less serious than conduct normally constituting the

offense. These factors include: the victim’s age; the physical, psychological, or economic

harm to the victim; whether the offender’s relationship with the victim facilitated the

offense; the offender’s criminal record; whether the offender was under court sanction at

the time; expressions of remorse; and any other relevant factors.

       {¶68} Subsections (D) and (E) address factors that indicate whether the offender

is likely—or not likely—to commit future crimes.

       Application to the Present Case

       {¶69} Art contends that the sentence is contrary to law because the trial court

improperly equated his continued claim of innocence with a lack of remorse. In support

of this claim, Art relies on the Supreme Court of Ohio’s decision in State v. Brunson, 2022-

Ohio-4299.
       {¶70} In Brunson, the Court explained that “when a defendant has maintained his

or her innocence by pleading not guilty and has taken the case to trial, the trial court errs

when it considers the defendant’s silence to be a demonstration of that defendant’s lack

of remorse for purposes of sentencing under R.C. 2929.12(D)(5).” Id. at ¶ 83. The Court

nevertheless concluded that the error was not prejudicial in that case because the

defendant failed to establish that his sentence would have been different absent the

improper consideration of silence. Id. at ¶¶ 84-86.

       {¶71} The record before us reflects that the trial court did not rely solely on Art’s

silence or his refusal to express remorse. Rather, the court considered the presentence

investigation report, the statements of the prosecutor, the statements of the minor victim’s

mother, and the arguments of defense counsel. The trial court expressly noted several

statutory sentencing factors, including the victim’s young age, the psychological harm

inflicted on the victim, and the fact that Art occupied a position of trust with the victim and

her mother. Sent. T. at 17. In assessing Art’s likelihood of recidivism, the court also

referenced his prior conviction for a second-degree felony. Id. at 18. Additionally, the trial

judge determined that each count of the indictment represented a separate act of gross

sexual imposition. Id. at 19.

       {¶72} These considerations demonstrate that the trial court’s sentencing decision

rested on proper statutory factors and not merely on Art’s refusal to admit guilt. The

imposed sentence of sixty months on each count falls squarely within the statutory range

authorized by R.C. 2929.14. Moreover, Art has not shown that the outcome would have

been different had the trial court disregarded any inference of lack of remorse.
      {¶73} Accordingly, we conclude that the trial court’s sentence was lawful, and we

find no basis to disturb the judgment on this ground.

      {¶74} Art’s second assignment of error is overruled.

      For the reasons stated in our Opinion, the judgment of the Muskingum County

Court of Common Pleas is affirmed. Costs to Appellant.


By: Popham, J.

Hoffman, P.J. and

Montgomery, J., concur