State v. Rogers

[Cite as State v. Rogers, 2018-Ohio-1356.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. CA2017-08-112

: OPINION

- vs - 4/9/2018

:

GARY W. ROGERS, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS

Case No. CR2016-12-1889

Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government

Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Scott N. Blauvelt, 315 South Monument Avenue, Hamilton, Ohio 45011, for defendant-

appellant

PIPER, J.

{¶ 1} Defendant-appellant, Gary W. Rogers, appeals his conviction and sentence for

felonious assault in the Butler County Court of Common Pleas.

{¶ 2} On February 1, 2017, the Butler County Grand Jury returned an indictment

charging Rogers with felonious assault, a second-degree felony. The matter proceeded to a

two-day jury trial commencing on May 31, 2017.

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{¶ 3} Mark Schlensker testified on behalf of the state. Mark testified that at

approximately 4:00 a.m. on September 3, 2017 he received a call from his ex-wife, Wendy

Schlensker. Mark described Wendy's demeanor on the phone as scared and very frantic.

Wendy was crying and informed Mark she was in trouble and needed him to pick her up from

Rogers' home in Butler County. Wendy lived at the residence with Rogers, who was her

boyfriend at the time. Mark drove to the address and parked outside where he observed

Wendy and Rogers arguing in front of the residence.

{¶ 4} Mark testified that Wendy informed Rogers her ex-husband was the driver of

the vehicle and Rogers walked over to his vehicle. Then, Mark turned to look at Wendy and

Rogers punched him in the side of his head three or four times. Rogers proceeded to open

the driver's side door and attempted to remove Mark from the vehicle. As a result, Mark

became tangled in his seatbelt with his body halfway out of the vehicle. Wendy interjected

herself into the fray, which provided an opportunity for Mark to reposition himself in the

driver's seat. Rogers continued to strike Mark in the head with punches while reaching

around Wendy. Then, Rogers and Wendy moved away from the vehicle for a moment and

Mark drove away.

{¶ 5} Mark sustained injuries during the altercation with Rogers and was treated at a

nearby hospital for a facial laceration and swelling, the loss of a piece of his ear, knee

scrapes, and a fractured nose. The state introduced photographic evidence depicting the

injuries sustained by Mark and blood inside Mark's vehicle. Mark stated his injuries remained

visible for months and his fractured nose required surgery. Mark testified he has a concealed

handgun license and that he always keeps a .45 caliber handgun holstered underneath his

driver's side seat. Mark stated he did not attempt to reach for the handgun the night of the

altercation.

{¶ 6} Before Mark's testimony, the state played a recording of a 911 call placed on

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September 3, 2016 by Rogers' neighbor. The neighbor stated that an altercation awoke her

and that she observed two people assaulting someone by a car. Officer Lanny Ash testified

that he was dispatched to Rogers' residence regarding an altercation. Ash made contact with

Wendy at the residence. He described her demeanor as frantic. Ash testified he had met

Wendy before September 3, 2016 because he arrested Rogers sometime earlier for

domestic violence in which Wendy was the victim.

{¶ 7} Rogers testified on his own behalf. Rogers stated that he and Wendy engaged

in an argument on September 3, 2016. According to Rogers, Wendy yelled at him, threw his

belongings around the house and yard, threatened him with a hammer, and discharged a

pistol inside his home. While outside, Rogers observed a small vehicle make "a real

dramatic turn" and then "come flying back up the street" where the driver "locked it up right

there in front of [his] house * * *." Rogers walked to the driver's side of the vehicle and

informed Mark he did not need to be there and that he should leave. During this interaction,

Wendy repeatedly hit Rogers. Then, Mark opened the vehicle door and threatened to shoot

Rogers. Wendy continued to hit Rogers, who observed Mark reach for a black handgun

under the driver's side seat. Rogers pushed Wendy to the side, lunged forward, grabbed

Mark's wrist, and "stretched him back in his car * * *." Rogers told Mark to drop the handgun.

Mark refused to drop the handgun and Rogers hit him "once or twice," which caused Mark to

drop the handgun to the floor of the vehicle. Rogers unsuccessfully attempted to pull Mark

from the vehicle away from the handgun.

{¶ 8} At this point, Wendy repositioned herself between Rogers and Mark and

resumed hitting Rogers. While Wendy remained between Mark and Rogers, Mark reached

again for the handgun and Rogers punched him around Wendy. Then, Rogers pushed

Wendy aside and Mark's holstered handgun "went flying into the middle of the street."

Rogers struck Mark two more times, and once Mark surrendered, Rogers backed away from

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the vehicle.

{¶ 9} Wendy testified regarding the argument with Rogers and the phone call to

Mark. Wendy stated Rogers punched Mark several times around her and that her back was

facing Mark during the altercation. Wendy testified she did not observe Mark exit the vehicle

or Rogers attempt to pull him from the vehicle. Additionally, Wendy did not observe a

handgun at any point during the altercation and did not hear Rogers inform Mark to drop a

handgun.

{¶ 10} At the close of the evidence, the trial court provided the jury with final jury

instructions, which included instructions on the affirmative defense of self-defense and the

inferior degree offense of aggravated assault, a fourth-degree felony. The jury found Rogers

guilty of felonious assault and not guilty of aggravated assault. On July 10, 2017, the trial

court sentenced Rogers to a three-year prison term.

{¶ 11} Rogers timely appealed from his conviction and sentence.

{¶ 12} Assignment of Error No. 1:

{¶ 13} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY

ENTERING A JUDGMENT OF GUILTY BASED UPON INCONSISTENT JURY VERDICTS.

{¶ 14} Rogers contends that a not guilty verdict for the inferior degree offense of

aggravated assault is inconsistent with a guilty verdict for felonious assault. Rogers argues

this error requires this court to vacate his conviction and remand the matter for a new trial.

{¶ 15} The Ohio Supreme Court has distinguished between a lesser-included offense

and an offense that is an "inferior degree" of the indicted offense. See State v. Deem, 40

Ohio St.3d 205, 208-09 (1988) (defining lesser included offense as an offense having a

penalty of lesser degree than the indicted offense and which, as statutorily defined, also

being committed, and some element of the greater offense is not required to prove the

commission of the lesser offense); see id. (defining an inferior degree offense as one with

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identical elements, except for one or more additional mitigating elements).

{¶ 16} R.C. 2903.11(A)(1) defines felonious assault, in pertinent part, as no person

shall knowingly cause serious physical harm to another. R.C. 2903.12 defines aggravated

assault, in pertinent part, as "[n]o person, while under the influence of sudden passion or in a

sudden fit of rage, either of which is brought on by serious provocation occasioned by the

victim that is reasonably sufficient to incite the person into using deadly force, shall knowingly

* * * [c]ause serious physical harm to another * * *." "Because the elements of aggravated

assault are identical to the elements of felonious assault, except for the additional mitigating

element of provocation, aggravated assault is an offense of an inferior degree of felonious

assault." State v. McOsker, 12th Dist. Clermont No. CA2016-05-025, 2017-Ohio-247, ¶ 14.

{¶ 17} Rogers cites a Tenth District opinion to support his argument that the jury

returned inconsistent verdicts requiring reversal of his conviction. See State v. Howard, 10th

Dist. Franklin No. 06AP-1273, 2007-Ohio-5659. In Howard, the court reversed a conviction

for aggravated menacing after finding the verdict inconsistent with the jury's not guilty verdict

for menacing on the same count. Id. at ¶ 1, 10. The court reasoned that menacing is a

lesser-included offense of aggravated menacing, and because the latter cannot be

committed without committing the former, the inconsistent verdicts required reversal. Id. at ¶

5. Rogers contends that this reasoning applies to the present case because an inferior

degree offense versus a lesser-included offense is a "distinction without a difference."

However, contrary to Rogers' argument, a distinction exists between the facts of this case

and Howard because one may be convicted of felonious assault and not convicted of

aggravated assault.

{¶ 18} Rogers further contends that interpreting the jury's findings of guilty for

felonious and not guilty for aggravated assault requires a court to assume the jurors found

Rogers failed to meet his burden in proving serious provocation. However, such conclusion

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is clearly demonstrated by the jury's findings and does not require an assumption to be made

by the court. "[A] jury is presumed to follow instructions given by the trial court." State v.

Swing, 12th Dist. Clermont No. CA2016-10-068, 2017-Ohio-8039, ¶ 81. The trial court

instructed the jury that it must consider the offense of felonious assault and if it found the

state failed to prove beyond a reasonable doubt all the essential elements of the offense of

felonious assault, then the jury was to find Rogers "not guilty and not consider the inferior

degree offense of aggravated assault." If the jury found him guilty of felonious assault, then

the jury was to continue deliberations "to decide whether [Rogers proved] by the greater

weight of the evidence that he acted while he was under the influence of sudden passion or

in a sudden fit of rage, either of which was brought on by serious provocation occasioned by

the victim that was reasonably sufficient to incite [Rogers] into using deadly force." The trial

court further instructed the jury that if the jury found Rogers met his burden, then the jury

must find Rogers guilty of aggravated assault and not guilty of felonious assault.

{¶ 19} Therefore, presuming the jurors followed the trial court's instructions, the

record clearly indicates the jury found the state proved every element of felonious assault

beyond a reasonable doubt. Then, as instructed by the trial court, the jury continued

deliberations to determine whether Rogers proved serious provocation by the greater weight

of the evidence. The jury's determinations of guilty for felonious assault and not guilty for

aggravated assault clearly indicate the jury found Rogers failed to meet his burden with

respect to the mitigating element of serious provocation because the elements of the two

crimes are identical, except for the mitigating element.

{¶ 20} Accordingly, Rogers' first assignment of error is overruled.

{¶ 21} Assignment of Error No. 2:

{¶ 22} APPELLANT WAS DENIED THE RIGHT TO DUE PROCESS AND A FAIR

TRIAL BY THE ADMISSION OF IRRELEVANT PRIOR BAD ACTS EVIDENCE.

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{¶ 23} Rogers argues he suffered unfair prejudice at trial when the trial court admitted

improper character evidence concerning a domestic violence charge involving him and

Wendy because the only purpose in admitting the evidence was to demonstrate his bad

character.

{¶ 24} Rogers failed to object to the admission of the evidence at trial; therefore, he

waived all but plain error. See State v. Lamb, 12th Dist. Butler Nos. CA2002-07-171 and

CA2002-08-192, 2003-Ohio-3870, ¶ 13. "Plain errors or defects affecting substantial rights

may be noticed although they were not brought to the attention of the court." Crim.R. 52(B).

Plain error does not exist unless the error is obvious and but for the error, the outcome of the

case would have been different. State v. Blacker, 12th Dist. Warren No. CA2008-07-094,

2009-Ohio-5519, ¶ 39. Notice of plain error is taken with the utmost caution and only under

exceptional circumstances to prevent a manifest miscarriage of justice. Id.

{¶ 25} Pursuant to Evid.R. 404(A)(1), "[e]vidence of a person's character or a trait of

character is not admissible for the purpose of proving action in conformity therewith on a

particular occasion * * *." Additionally, pursuant to Evid.R. 404(B) "'[e]vidence that an

accused committed a crime other than the one for which he is on trial is not admissible when

its sole purpose is to show the accused's propensity or inclination to commit crime or that he

acted in conformity with bad character.'" State v. Ward, 12th Dist. Clermont No. CA2013-07-

059, 2014-Ohio-990, ¶ 19, quoting State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, ¶

15. The state concedes the exceptions listed in Evid.R. 404(A)(1)-(3) and (B) are

inapplicable to the present case. Therefore, we will not consider the statutory exceptions in

our plain error analysis.

{¶ 26} After thoroughly reviewing the record, we find the trial court did not commit

plain error in admitting the evidence regarding the prior domestic violence charge. At trial,

the prosecutor solicited testimony from a responding officer that the officer had previously

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met Wendy when he had the occasion to arrest Rogers for domestic violence. Specifically, in

response to whether he had met Wendy before, the arresting officer answered affirmatively

and stated that he "arrested Mr. Rogers for domestic violence some time ago prior to this

incident where [Wendy] was the * * * victim * * *." The responding officer testified he did not

know the outcome of the prior arrest.

{¶ 27} Since Rogers did not object to the testimony by the responding officer, the

prosecutor's intent in eliciting this testimony is unclear. Nonetheless, even assuming the

testimony was violative of Evid.R. 404, the testimony does not amount to plain error because

but for the admission of the testimony, the outcome of the trial clearly would not have been

different. As discussed below, the record contains substantial evidence of Rogers' guilt and

the jury's findings regarding serious provocation and self-defense were supported by the

manifest weight of the evidence. See, e.g., State v. Russell, 12th Dist. Butler No. CA2012-

03-066, 2013-Ohio-1381, ¶ 62 (finding trial court's admission of domestic violence conviction

concerning, but did not amount to plain error because outcome of the trial clearly would not

have been different).

{¶ 28} The responding officer briefly testified that he had arrested Rogers some time

ago for an incident that involved Rogers and Wendy. Rogers contends the testimony unfairly

prejudiced his theory of the case by demonstrating his affinity to violence. However, the

prosecutor neither expanded upon this testimony nor made an argument based upon the

testimony in closing argument. State v. Marcum, 12th Dist. Butler No. CA2017-05-057, 2018-

Ohio-1009, ¶ 40 (finding improperly admitted character evidence did not constitute plain error

where the evidence was brief and primarily contextual). Rather, the focus of the trial

regarded the facts supporting Rogers' conviction for felonious assault and whether Rogers

met his burden with respect to proving self-defense and serious provocation. While Rogers

correctly asserts the trial court did not provide a curative instruction immediately following the

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testimony, it did instruct the prosecutor to move on in the line of questioning. Therefore,

based on the evidence presented and the brevity of the alleged problematic testimony,

Rogers fails to demonstrate how the outcome of the trial clearly would have been different.

{¶ 29} Accordingly, Rogers' second assignment of error is overruled.

{¶ 30} Assignment of Error No. 3:

{¶ 31} THE VERDICT WAS CONTRARY TO THE MANIFEST WEIGHT OF THE

EVIDENCE.

{¶ 32} Rogers argues that the guilty verdict for felonious assault was against the

manifest weight of the evidence because he established by a preponderance of the evidence

that he acted in self-defense and while under sudden passion brought on by serious

provocation from Mark.

{¶ 33} A manifest weight of the evidence challenge examines the "inclination of the

greater amount of credible evidence, offered at a trial, to support one side of the issue rather

than the other." State v. Barnett, 12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, ¶

14. In making this determination, a reviewing court looks at the entire record, weighs the

evidence and all reasonable inferences, considers the credibility of the witnesses, and

determines whether in resolving the conflicts in the evidence, the trier of fact clearly lost its

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

and a new trial ordered. State v. Morgan, 12th Dist. Butler Nos. CA2013-08-146 and

CA2013-08-147, 2014-Ohio-2472, ¶ 34. "An appellate court will overturn a conviction due to

the manifest weight of the evidence only in extraordinary circumstances when the evidence

presented at trial weighs heavily in favor of acquittal." State v. Couch, 12th Dist. Butler No.

CA2016-03-062, 2016-Ohio-8452, ¶ 8.

{¶ 34} Self-defense is an affirmative defense and the defendant bears the burden of

proving self-defense by a preponderance of the evidence. State v. Gray, 12th Dist. Butler

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No. CA2010-03-064, 2011-Ohio-666, ¶ 42, citing R.C. 2901.05(A). To establish self-defense

in a case where a defendant used deadly force, the defendant must prove each of the

following elements: "(1) he was not at fault in creating the situation giving rise to the affray;

(2) he had a bona fide belief he was in imminent danger of death or great bodily harm and

that his only means of escape from such danger was the use of deadly force; and (3) he did

not violate any duty to retreat or avoid the danger." Gray at ¶ 43, citing State v. Robbins, 58

Ohio St.2d 74 (1979), paragraph two of the syllabus.

{¶ 35} With respect to aggravated assault, "[p]rovocation, to be serious, must be

reasonably sufficient to bring on extreme stress and the provocation must be reasonably

sufficient to incite or to arouse the defendant into using deadly force." State v. Deem, 40

Ohio St.3d 205 (1988), paragraph five of the syllabus. "In determining whether the

provocation is reasonably sufficient to bring on sudden passion or a sudden fit of rage, an

objective standard must [first] be applied." State v. Shane, 63 Ohio St.3d 630, 634 (1992).

Under an objective standard, "the provocation must be sufficient to arouse the passions of an

ordinary person beyond the power of his or her control." State v. McOsker, 12th Dist.

Clermont No. CA2016-05-025, 2017-Ohio-247, ¶ 16. If the objective standard is met, "the

inquiry shifts to a subjective standard, to determine whether the defendant in the particular

case 'actually was under the influence of sudden passion or in a sudden fit of rage.'" State v.

Mack, 82 Ohio St.3d 198, 201 (1998), quoting Shane at 635. In so doing, the trial court must

consider the "emotional and mental state of the defendant and the conditions and

circumstances that surrounded him at the time." Deem at 211.

{¶ 36} After a thorough review of the record, we find that the jury could have

reasonably concluded that Rogers failed to establish that he neither acted in self-defense nor

was under serious provocation sufficient to incite or to arouse him into using deadly force.

{¶ 37} Rogers points to his testimony to support his contention that the jury clearly

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lost its way in finding he failed to prove self-defense and serious provocation by a

preponderance of the evidence. However, there was ample evidence presented to allow the

jury to reasonably conclude Rogers failed to meet his respective burdens. With respect to

self-defense, Rogers argues that he was not at fault in creating the situation that resulted in

the felonious assault because he asked Mark to leave, Rogers had a legitimate belief that he

was in imminent danger because Mark reached for his gun and threatened to shoot him, and

Rogers did not have a reasonable opportunity to retreat from this danger. Rogers contends

the same circumstances provided the jury with evidence to reasonably find serious

provocation.

{¶ 38} While Rogers testified regarding the circumstances asserted above, the

inclination of the greater amount of credible evidence indicates the jury did not create a

manifest miscarriage of justice in finding Rogers failed to meet his respective burdens.

Specifically, Mark testified he received a call in the middle of the night from his frantic ex-wife,

who claimed she was in trouble and needed him to pick her up. Mark testified he drove to

Rogers' home and parked outside. Rogers approached the vehicle and began punching

Mark in the head. The punches continued despite Wendy interjecting herself between the

fray and included Rogers attempting to pull Mark from his vehicle. Mark admitted to having a

holstered handgun beneath his driver's side seat, but denied threatening Rogers with the

weapon or attempting to retrieve it. Photographic evidence along with medical records and

testimony indicate Mark sustained serious injuries during the altercation. While testifying on

behalf of Rogers, Wendy stated she did not hear Mark threaten Rogers with a handgun and

did not observe Mark attempt to retrieve a handgun.

{¶ 39} Therefore, the circumstances of what occurred during the altercation differ in

several aspects based on the evidence presented by the state and the defendant. "While

this court considers the credibility of witnesses in a manifest weight analysis, the [fact-finder]

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remains in the best position to view the witnesses, observe their demeanor, and assess their

credibility." State v. Fread, 12th Dist. Butler No. CA2013-03-045, 2013-Ohio-5206, ¶ 29. "It

is well established that when conflicting evidence is presented at trial, a conviction is not

against the manifest weight of the evidence simply because the jury believed the prosecution

testimony." (Internal quotations omitted.) Id., citing State v. Bates, 12th Dist. Butler No.

CA2009-06-174, 2010-Ohio-1723, ¶ 11.

{¶ 40} The mere fact the jury believed the evidence presented by the state over

Rogers' testimony does not equate to a finding the jury clearly lost its way. Furthermore, the

record does not indicate inconsistency or incredibility in the testimony presented by the state

to render the evidence unreliable thereby creating a manifest miscarriage of justice. Rather,

the state presented evidence the jury reasonably found credible, and thus, the jury's findings

regarding self-defense and serious provocation were not against the manifest weight of the

evidence.

{¶ 41} Accordingly, Rogers' third assignment of error is overruled.

{¶ 42} Assignment of Error No. 4:

{¶ 43} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN

FINDING THAT HE COULD NOT OVERCOME THE PRESUMPTION IN FAVOR OF

PRISON AT SENTENCING.

{¶ 44} Rogers contends his prison sentence is clearly and convincingly contrary to

law because the trial court erred in making its findings pursuant to R.C. 2929.12 and

2929.13. Specifically, Rogers argues the trial court erred by stating it could not find Mark

induced or facilitated the offense because the jury found Rogers failed to demonstrate

serious provocation. Rogers argues the jury's finding against serious provocation does not

necessitate the trial court's finding that Mark did not induce or facilitate the offense.

Therefore, Rogers' sentence is contrary to law.

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{¶ 45} R.C. 2953.08(G)(2) sets forth the standard of review for all felony sentences.

State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1; accord State v. Crawford, 12th

Dist. Clermont No. CA2012-12-088, 2013-Ohio-3315, ¶ 6. As explained in Marcum, "[t]he

appellate court’s standard for review is not whether the sentencing court abused its

discretion." (Emphasis omitted.) Marcum at ¶ 9. Rather, pursuant to R.C. 2953.08(G)(2), an

appellate court may only "increase, reduce, or otherwise modify a sentence * * * or may

vacate the sentence and remand the matter to the sentencing court for resentencing" if the

court finds by clear and convincing evidence "(a) [t]hat the record does not support the

sentencing court's findings[,]" or "(b) [t]hat the sentence is otherwise contrary to law." R.C.

2953.08(G)(2)(a)-(b). Thus, "the language in R.C. 2953.08(G)(2) establishes an 'extremely

deferential standard of review.'" Crawford at ¶ 8.

{¶ 46} A sentence is not "clearly and convincingly contrary to law where the trial court

considers the principles and purposes of R.C. 2929.11, as well as the factors listed in R.C.

2929.12, properly imposes postrelease control, and sentences the defendant within the

permissible statutory range." State v. Ahlers, 12th Dist. Butler No. CA2015-06-100, 2016-

Ohio-2890, ¶ 8, citing State v. Moore, 12th Dist. Clermont No. CA2014-02-016, 2014-Ohio-

5191, ¶ 6.

{¶ 47} Pursuant to R.C. 2929.13(D)(1), for a second-degree felony, a prison term is

necessary to comply with the principles and purposes of felony sentencing, that is, to punish

the offender and protect the public from harm. State v. Holmes, 9th Dist. Lorain No.

07CA009165, 2008-Ohio-1321, ¶ 16. R.C. 2929.13(D)(2) permits a trial court to depart from

this presumption and impose community control sanctions in lieu of prison if it finds both that

the community control sanction would adequately punish the offender and protect the public

from future crime, and that the imposition of a community control sanction would not demean

the seriousness of the offense. In making such findings, the trial court shall consider the

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applicable factors set forth in R.C. 2929.12. R.C. 2929.13(D)(2)(a)-(b).

{¶ 48} After thoroughly reviewing the record, it is clear the trial court considered the

principles and purposes of R.C. 2919.11, the recidivism factors of R.C. 2919.12, the

requirements for overcoming the presumption of a prison term of R.C. 2929.13(D), properly

imposed postrelease control, and sentenced Rogers within the permissible statutory range.

In its consideration of R.C. 2929.12 and 2929.13(D), the trial court stated that some of the

factors supported a finding against a presumption of prison. However, the trial court

determined that because the jury found against serious provocation, the trial court would not

find Mark facilitated the offense pursuant to R.C. 2929.12(C)(1) or that Rogers acted under

strong provocation pursuant to R.C. 2929.12(C)(2).

{¶ 49} Contrary to Rogers' claim, the trial court did not make such determination as a

matter of law, but rather, the trial court was indicating that it was not inclined to make factual

findings contrary to the jury's determinations. In other words, the trial court interpreted the

evidence consistent with, and similar to, the jury's interpretations of the evidence. The trial

court was indicating its result would be no different than the result reached by the jury.

{¶ 50} Rogers argues the trial court stated it was obligated or prevented by law from

making its own findings under the statute, and therefore, his sentence is contrary to law. The

record does reflect that the trial court made findings consistent with the jury's factual

determinations. However, the record does not demonstrate, as Rogers asserts, that the trial

court made its findings as a matter of law. Moreover, despite the trial court's findings that

some factors supported a determination against the presumption of a prison term, R.C.

2929.12 allows the trial court to consider and afford the weight given to any relevant factors

in imposing a sentence. State v. Steger, 12th Dist. Butler No. CA2016-03-059, 2016-Ohio-

7908, ¶ 18.

{¶ 51} Accordingly, the sentence imposed by the trial court is not clearly and

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convincingly contrary to law and Rogers' fourth assignment of error is overruled.

{¶ 52} Judgment affirmed.

HENDRICKSON, P.J., and RINGLAND, J., concur.

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