COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71850 STATE OF OHIO, Plaintiff-appellee JOURNAL ENTRY vs. AND ROBBIE ROBINSON, OPINION Defendant-appellant DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 29, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-335134 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor JAMES E. VALENTINE RICHARD A. BELL Assistant Prosecuting Attorneys The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: DWIGHT E. DAVIS 1370 Ontario Street 1328 Standard Building Cleveland, Ohio 44113 -2- KARPINSKI, J.: Defendant-appellant appeals from her jury conviction and sentence on eight counts of extortion and one count of child endangerment with an accompanying violence specification. The charges in this case arose from defendant's extortion of money from a female public school principal who had a sexual relationship with her twelve-year-old son. Defendant learned of the sexual relationship shortly after it began and reported it to the police on May 3, 1994. Two days thereafter defendant confronted the principal and demanded payment of $500 per month to keep the relationship secret. Defendant quit her job, which paid approximately $500 per month, and received monthly payments from the principal over the following eight months. During this period, defendant also obtained several other items of valuable consideration from the principal in addition to the monthly payments. The principal made further substantial cash payments of $1,500 and $5,000; co-signed for defendant's Mercury Marquis car loan and a retail Plus Sizes credit card; made car payments and paid for her car repairs with a BP credit card; and paid for $1,200 worth of furniture from Value City. Defendant also demanded that she pay for the boy's education at a private school in addition to paying for the boy's tutor. In response to various inquiries while these payments were being made, defendant repeatedly and falsely denied or concealed the existence of the principal's sexual relationship with her son. -3- On March 16, 1995, two days after the principal stated she would make no further payments, defendant went to the police. The principal was charged and ultimately pled guilty to multiple counts of rape and corruption of a minor. Defendant was charged with eight separate counts of extortion against the principal and one count of endangering her child with an accompanying violence specification. At the end of a lengthy trial, the jurors convicted defendant on all charges and the accompanying violence specification. Prior to sentencing, the trial court ordered the probation department to complete a pre-sentence report. However, defendant refused to participate and no such report was completed prior to sentencing. The transcript of the sentencing hearing reveals that the trial court considered statements by defense counsel, defendant, and the prosecution, prior to making her own extensive sentencing comments. The court ultimately sentenced defendant to serve consecutive indeterminate terms of five to ten years on each of her eight extortion convictions and three to five years on her conviction for child endangerment with a violence specification. Defendant's first three assignments of error challenge her sentence as follows: THE TRIAL COURT ABUSED ITS DISCRETION IN NOT CONSIDERING THE VARIOUS STATUTORY FACTORS AS SET FORTH IN SECTION 2929.12 OF THE REVISED CODE FOR SENTENCING AND IN IMPOSING AN EXCESSIVE SENTENCE UPON THE DEFENDANT. RULING THAT MAXIMUM SENTENCES IMPOSED ON ALL COUNTS SHOULD RUN CONSECUTIVELY RATHER THAN CONCURRENTLY IN LIGHT OF THE SIMILARITY OF OFFENSES AND MITIGATING FACTORS DEMONSTRATED IN THE RECORD WAS AN ABUSE OF THE TRIAL COURT'S DISCRETION. -4- THE SENTENCES IMPOSED ARE EXCESSIVE, CRUEL AND UNUSUAL PUNISHMENTS, GROSSLY DISPROPORTIONATE TO THE OFFENSES, WHICH VIOLATES THE OHIO CONSTITUTION, ART. I. SEC. 9 AND THE EIGHTH AMENDMENT TO THE U.S. CONSTITUTION AND CONSTITUTE REVERSIBLE ERROR. These assignments lack merit. Defendant contends that the trial court did not consider all statutory mitigating factors, abused its discretion by ordering the sentences to be served consecutively, and imposed cruel and unusual punishment. Because defendant committed her crimes and was indicted before the effective date of the new felony sentencing statutes, her case is governed by the prior sentencing law. State v. Rush (1988), 83 Ohio St.3d 53, syllabus paragraph two. We rejected the same arguments under the prior sentencing law under similar circumstances in State v. Hamann (1993), 90 Ohio App.3d 654. Defendant first contends the trial court did not consider the factors in R.C. 2929.12(A) prior to sentencing. The Hamann Court rejected this argument, stating as follows: It is well established, contrary to defendant's argument, that a trial court is not required to expressly state on the record that it considered the factors set forth in R.C. 2929.12 prior to sentencing. State v. Cyrus(1992), 63 Ohio St.3d 164, 586 N.E.2d 94; State v. Adams (1988), 37 Ohio St.3d 295, 525 N.E.2d 1361. In fact, contrary to defendant's argument, both these cases hold that a silent record raises the presumption that a trial court considered these factors contained in R.C. 2929.12. Id. at paragraph three of the syllabus. Id. at 661. Defendant complains that the trial court did not consider a presentence report before sentencing her. Although ordered, no such report was completed, however, because defendant refused to -5- cooperate. The trial court was not responsible for her failure to do so. Even if the court believed defendant's claim of mental problems, it was not required to grant her another opportunity to complete a presentence report when she made the belated request for the first time at the sentencing hearing. Moreover, the defendant was granted an unlimited opportunity to present any information to the trial court that she desired prior to sentencing. Defendant, in her brief on appeal, continues to blame her crimes of extortion and child endangerment on the teacher who had sexual relations with defendant's son. Contrary to defendant's argument, however, the trial court was not required to accept her claim that the circumstances excuse or justify the offense of extortion. Brief at p. 14. To the contrary, the trial court could properly conclude that using circumstances that endangered her child as an opportunity to extort approximately $15,000 worth of money, credit, and other benefits repeatedly exhibited seriously depraved character to warrant a lengthier sentence on each count of extortion. Permitting the relationship to continue for approximatelyten months, while extorting these benefits, likewise justified the sentence imposed for child endangerment with a violence specification. Although this court may have imposed a different sentence than the trial court, we are unable to find that defendant did not deserve the punishment imposed. Defendant defiantly refused to accept any responsibility for her crimes. During the course of trial she improperly contacted a juror. Following her conviction, -6- she maintained her innocence despite contemporaneous audiotape recordings of her threats. At the time of sentencing, she exhibited no remorse or understanding of her own character flaws and, instead, impugned the judge, prosecutor, police, and jury. Under the circumstances, the trial court could properly find that defendant's conduct warranted the maximum lawful range of punishment. Defendant's second assignment complains that the trial court ordered her sentences to be served consecutively. She merely argues again, however, that the individual sentences are too long and that some of the offenses are duplicative. Neither of these arguments has anything to do with whether the sentences imposed could be imposed consecutively. R.C. 2929.41 grants the trial court discretion whether to impose sentences consecutively. State v. Hamann at 666-667. Defendant has made no argument or showing that the trial court abused its discretion in the case at bar. As in Hamann, defendant has made no argument that the eight extortion convictions constitute allied offenses under R.C. 2941.25. Even if she had, however, multiple violations of the same statute on successive occasions do not constitute allied offenses of similar import. Id.; State v. Larsen (1993), 89 Ohio App.3d 371. As a result, the trial court could impose the sentences for each violation consecutively. Defendant's third assignment contends that the sentence imposed upon her in this case constitutes cruel and unusual -7- punishment prohibited by the United States and Ohio Constitutions. The Hamann Court rejected this claim, stating as follows: [I]t is well established that sentences do not violate these constitutional provisions against cruel and unusual punishment unless the sentences are so grossly disproportionate to the offenses as to shock the sense of justice in the community. State v. Chaffin (1972), 30 Ohio St.2d 13, 59 O.O.2d 51, 282 N.E.2d 46; State v. Jarrells (1991), 72 Ohio App.3d 730, 596 N.E.2d 477. Id. at 672. As in Hamann, defendant has failed to show that any of the individual punishments for child endangerment or the eight counts of extortion, or the cumulative punishment imposed for all nine offenses, is so grossly disproportionate to the offenses as to shock the sense of justice in the community. Logic dictates that the total sentence imposed for multiple felony offenses is likely to be extensive. Imprisonment of 5 to 10 years for the offense of extortion or 3 to 5 years for child endangerment with a violence specification does not shock the sense of justice in the community. Extortion is a crime of violence. R.C. 2901.01(A)(9)(a). Each of the eight acts of extortion in the case at bar occurred on different occasions; each involved separate threats to extort additional items of value over the course of an approximately ten-month period. Accordingly, defendant's first, second, and third assignments of error are overruled. -8- Defendant's fourth assignment of error challenges the manifest weight of the evidence to support two of her extortion convictions as follows: THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE FOR INDICTMENTS SIX AND EIGHT AND SHOULD BE REVERSED. This assignment also lacks merit. Defendant contends that the jury verdict convicting her on extortion in connection with two accounts for which the principal co-signed was against the manifest weight of the evidence. She contends the jury lost its way when convicting her of the offense involving the (1) retail Plus Sizes charge card, because the application was denied and (2) car payments, because the teacher was obligated as co-signer to make the payments. R.C. 2905.11(A)(5) defines the crime of extortion in pertinent part as follows: (A) No person, with purpose to obtain any valuable thing or valuable benefit or to induce another to do an unlawful act, shall do any of the following: * * * (5) Expose or threaten to expose any matter tending to subject any person to hatred, contempt, or ridicule, or to damage his personal or business repute, or to impair his credit. The record in this case amply supports the jury's findings that defendant committed the two challenged extortions in this case. It is possible to commit extortion by obtaining the signature of a co-signer, who undertakes to guarantee a debt, even if the credit application is subsequently denied. All that is required is the making of a threat with a prohibited purpose. The -9- Supreme Court of Ohio has long recognized that the crime is complete when the threat is made, regardless of whether the defendant is successful in extorting valuables. Elliot v. State (1881), 36 Ohio St. 318. Moreover, an extortion may be committed if payments are made on a debt by a co-signer in response to an improper threat by the principal borrower when the co-signer is not already under a current legal obligation to make immediate payment to the lender. Accordingly, defendant's fourth assignment of error is overruled. Judgment affirmed. -10- It is ordered that appellee recover of appellant ITS costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOSEPH J. NAHRA, P.J., and MICHAEL J. CORRIGAN, J., CONCUR. DIANE KARPINSKI JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .