State v. Baugh

[Cite as State v. Baugh, 2026-Ohio-3604.] IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY State of Ohio Court of Appeals No. {87}WD-25-075 Appellee Trial Court No. 2025 CR 0156 v. Duane Baugh DECISION AND JUDGMENT Appellant Decided: September 15, 2026 ***** Paul A. Dobson, Wood County Prosecuting Attorney, and Kristofer Kristofferson, Assistant Prosecuting Attorney, for appellee. Jeffrey P. Nunnari, for appellant. ***** SULEK, J. {¶ 1} Defendant-appellant, Duane Baugh, appeals the November 7, 2025 judgment of the Wood County Court of Common Pleas convicting him of one count of attempted unlawful sexual conduct with a minor, three counts of importuning, and two counts of disseminating matter harmful to juveniles. At sentencing, the trial court ordered the sentences for the count of attempted unlawful sexual conduct and one of the counts of importuning to be served consecutively. The remaining sentences were ordered to be served concurrently. Baugh challenges only the trial court’s imposition of consecutive sentences. For the reasons that follow, however, the trial court’s judgment is affirmed.  I. Factual Background and Procedural History {¶ 2} On May 22, 2025, the Wood County Grand Jury indicted Baugh on 14 counts: one count of attempted unlawful sexual conduct with a minor in violation of R.C. 2923.02, 2907.04(A), and 2907.04(B)(3), a felony of the fourth degree (count one); ten counts of importuning in violation of R.C. 2907.07(E)(2) and (G)(3), felonies of the fifth degree (counts two through eleven); and three counts of disseminating matter harmful to juveniles in violation of R.C. 2907.31(A)(1) and (F), felonies of the fifth degree (counts twelve through fifteen). {¶ 3} The charges stem from a series of electronic communications between Baugh and a law enforcement officer who Baugh believed to be a fifteen-year-old girl. Over the course of several months, Baugh sent multiple sexually explicit text messages and images, eventually attempting to meet with the fictitious girl for purposes of engaging in sexual activity. {¶ 4} On September 17, 2025, Baugh pleaded guilty to counts one, two, three, four, twelve, and fourteen of the indictment. In exchange, the State agreed to seek dismissal of the remaining counts. Following a plea colloquy, the trial court accepted Baugh’s guilty pleas and ordered a presentence investigation (PSI). {¶ 5} According to the PSI, Officer Dewitt, a Lake Township Police Department officer, operated an undercover account on a popular social media platform in which Officer Dewitt posed as a 21-year-old female. Baugh, who was 27 years old at the time, messaged the undercover account on November 30, 2024 and provided his cell phone 2. number. Officer Dewitt, posing as the undercover account, texted Baugh that she was not actually 21 years old but was instead 15 and asked, “is that okay?” Baugh replied, “Yeah if you[‘re] okay with it.” Over the next several months, Baugh sent several sexually explicit texts to the undercover officer’s phone number, including nude photographs of himself, and repeatedly asked for photos of the undercover officer’s “body,” even offering to send her money for a photo. Baugh repeatedly expressed his desire to have sex with her, though during one exchange he cautioned that it was “risky” because he was “older” and she was “underage.” In April 2025, Baugh instructed the fictitious girl to lie to her mother about why she was leaving the house—Baugh said she should tell her mother she was going to get homework from a friend—so she could meet him for sex. Although that meeting did not occur, Baugh sent another message requesting to meet to have sex a few days later. The undercover officer said she could meet after school, and Baugh asked whether she rode the bus home or walked. The undercover officer provided an address in Lake Township, Ohio where they could meet, and shortly before the meeting, the officer requested that Baugh bring her Skittles and a Sprite. Officer Dewitt arrived at the meeting place and found Baugh in possession of the cell phone that had been texting the undercover account along with a cold Sprite and Skittles. {¶ 6} At the sentencing hearing on November 4, 2025, the trial court offered Baugh the opportunity to speak. Baugh maintained that during the period he was communicating with the undercover account, he had been drinking a lot and he was texting multiple individuals he met through various dating apps without saving their phone numbers, so he did not realize that he arranged to meet up with someone who told 3. him she was 15 years old. After explaining his obligation to register as a sex offender, the trial court imposed the following prison terms: eighteen months on the count of attempted unlawful sexual conduct, and twelve months on each of the remaining five counts. The trial court ordered the sentences for the count of attempted unlawful sexual conduct and one of the counts of importuning to be served consecutively, finding as follows: In regard to Counts One and Two, the Court will impose a consecutive sentence because there are multiple offenses and consecutive sentence is necessary to protect the public from future crime and to punish the offender. It is not disproportionate to the seriousness of the conduct. As I said, this is a very serious offense and the danger you pose to the public. And the harm is so great at least two of those offenses were committed as part of one or more courses of conduct and the harm caused by two or more of the multiple offenses was so great or unusual, in this particular case engaging in long-term [communications] with a 15-year-old who you then meant to meet up with and have sex is just an outrageous thing that we should be, as a society, offended by. The remaining sentences were ordered to be served concurrently, for an aggregate prison term of 30 months. {¶ 7} The trial court incorporated the consecutive sentencing findings into its November 7, 2025 judgment entry. Baugh timely appealed. II. Assignment of Error {¶ 8} Baugh raises one assignment of error for review: The record does not clearly and convincingly support the trial court’s consecutive sentence findings. 4.  III. Analysis {¶ 9} R.C. 2953.08(G)(2) governs appellate review of felony sentences. An appellate court may not reverse or modify a trial court’s sentence based on its subjective disagreement with the trial court. State v. Glover, 2024-Ohio-5195, ¶ 44. Instead, an appellate court may increase, reduce, modify, or vacate and remand a sentence only where the court clearly and convincingly finds either that the record does not support the trial court’s required statutory findings or that the sentence is otherwise contrary to law. Id. at ¶ 44-46; State v. Morse, 2025-Ohio-2713, ¶ 22 (6th Dist.). Clear and convincing evidence is the measure of degree of proof that is more than a preponderance of the evidence, but less than the beyond-a-reasonable-doubt standard. State v. Gwynne, 2023- Ohio-3851, ¶ 14-15. It produces in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established. Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus. {¶ 10} Notably, “[t]he clear-and-convincing standard for appellate review in R.C. 2953.08(G)(2) is written in the negative.” Gwynne at ¶ 13. Accordingly, the burden under R.C. 2953.08(G)(2) is on the appellant to demonstrate clearly and convincingly that the trial court’s findings are not supported by the record. State v. Kiefer, 2021-Ohio- 3059, ¶ 8 (6th Dist.), citing State v. Torres, 2019-Ohio-434, ¶ 6 (6th Dist.). {¶ 11} In Ohio, multiple sentences of imprisonment are generally presumed to run concurrently, R.C. 2929.41(A), except in certain circumstances. State v. Jones, 2022- Ohio-4485, ¶ 12. One of those circumstances is where the trial court makes the findings 5. mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporates them into the sentencing entry. State v. Bonnell, 2014-Ohio-3177, syllabus. {¶ 12} Under R.C. 2929.14(C)(4), the trial court must engage in a three-step analysis. First, it must find that consecutive sentences are necessary to protect the public from future crime or to punish the offender. Second, the court must find that consecutive sentences are not disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses to the public. Third, the court must find any one of the following: (a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, 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. A trial court does not need to explain its reasoning so long as the necessary findings can be discerned in the record and are incorporated into the sentencing entry. Bonnell at ¶ 29. {¶ 13} Here, there is no dispute that the trial court made the appropriate findings under R.C. 2929.14(C)(4). At issue is whether Baugh has demonstrated clearly and convincingly that the trial court’s third finding under R.C. 2929.14(C)(4)(b)—the harm caused by two or more of Baugh’s offenses was so great or unusual that no single prison 6. term adequately reflects the seriousness of Baugh’s conduct—is unsupported by the record. {¶ 14} Baugh argues that because he was communicating with a law enforcement officer, not an underage victim, he could not have caused harm to anyone but himself. In support, Baugh points to the statutory text of R.C. 2929.14(C)(4)(b), which he claims requires the court to find that his offenses actually caused harm, not just created the potential for harm. Baugh also cites State v. Gifford, 2022-Ohio-1620 (6th Dist.), in which this court modified consecutive sentences to be served concurrently. In that case, the trial court found a long-lasting psychological impact on the victims of an armed robbery, but the record contained no evidence to support the finding. Id. at ¶ 19. Baugh argues his case is materially indistinguishable because the trial court made a finding of great or unusual harm without any record evidence that Baugh caused actual harm to any person. Baugh concedes that had there been an actual victim, the record may have contained evidence to support the trial court’s finding. He maintains, however, the intercession of law enforcement precluded any actual harm from occurring. {¶ 15} The State responds that the standard of review under R.C. 2953.08(G)(2) is highly deferential to the trial court’s findings, and Baugh has not met his burden to clearly and convincingly demonstrate that the record fails to support the trial court’s findings. Citing State v. Curtis, 2024-Ohio-4625 (12th Dist.), a case in which the Twelfth District explained that the First Amendment does not protect speech in which “an adult who attempts to persuade [or invites] a minor, or a person he believes to be a minor, to engage in sex acts,” the State maintains that “[t]he harm is in the asking.” Id. at 7. ¶ 21 (citations omitted). The State further analogizes the case to State v. O’Malley, 2022- Ohio-3207, in which the Ohio Supreme Court concluded that a drunk driver who was apprehended by law enforcement before causing any physical injury nonetheless caused harm to society by creating an illegally dangerous situation. Id. at ¶ 92, 96. In other words, the State contends that asking for sex from a person believed to be a minor causes harm because that conduct endangers minors in the community. {¶ 16} This court has previously explained that “[t]here must be actual evidence of, not the potential for, ‘great or unusual’ harm in evidence to support the finding.” State v. Merer, 2021-Ohio-1553, ¶ 37 (6th Dist.), quoting State v. Williams, 2016-Ohio- 4905, ¶ 27 (6th Dist.); State v. Gessel, 2020-Ohio-403, ¶ 17 (6th Dist.). However, R.C. 2929.14(C)(4)(b) does not provide that the harm must have occurred to a specific victim, nor does it preclude a finding of great or unusual harm to the community. Indeed, this court and other appellate courts have repeatedly found that great or unusual harm to the community rather than an individual victim supports the trial court’s finding under R.C. 2929.14(C)(4)(2). See, e.g., State v. Lough, 2021-Ohio-230, ¶ 14-16 (2d Dist.) (explaining that the trial court’s finding of great or unusual harm was not unsupported by the record even though appellant sold drugs to an undercover law enforcement officer because drug trafficking hurts the community); State v. Mason, 2020-Ohio-3505, ¶ 18-19 (3d Dist.) (affirming imposition of consecutive sentences where the appellant sold drugs to a confidential informant because of appellant’s intention to harm his community); State v. Waxler, 2017-Ohio-7536, ¶ 16 (6th Dist.) (explaining that the “the harm stemming from [the appellant’s] conduct centers on his intention to distribute drugs and 8. firearms to his community”). Moreover, as the State points out, the Supreme Court of Ohio, construing the harm component of the Eighth Amendment’s Excessive Fines Clause, has concluded that a court’s harm analysis “is not limited solely to tangible forms of harm” and that a court may consider “the harm caused or threatened to…society” in evaluating the magnitude of an offense. O’Malley at ¶ 86, 88, quoting Solem v. Helm, 463 U.S. 277, 292 (1983). {¶ 17} Here, over the course of roughly five months, Baugh sent numerous sexually explicit messages to a person he believed to be a fifteen-year-old girl, transmitted graphic images of himself to her, asked her to send photos of her body to him, and took the affirmative step of arranging an in-person meeting to engage in sexual activity. As the trial court found, an adult who repeatedly solicits and pursues sexual contact with a person he believes to be a minor inflicts a cognizable harm on the community. And though Baugh, at his sentencing hearing, attempted to explain his actions by maintaining that he had been texting multiple individuals while drinking and therefore was not keeping track of the ages of the individuals he was messaging, that explanation provided even stronger support that his conduct was harmful to the community. Accordingly, Baugh has not sustained his burden of demonstrating that the trial court’s finding of great or unusual harm was clearly and convincingly unsupported by the record. {¶ 18} Moreover, Baugh’s reliance on this court’s holding in Gifford is misplaced. In Gifford, the trial court found a long-lasting psychological impact on the victims, but the record contained evidence contradicting that conclusion. Gifford, 2022-Ohio-1620, at 9. ¶ 19. The presentence investigation report in Gifford specifically marked “psychological impact” as “N/A” and noted no evidence of physical harm to the victims was found. Id. Here, there is no evidence in the record contradicting the trial court’s finding of harm to the community. {¶ 19} Because Baugh has not demonstrated that the record clearly and convincingly does not support the trial court’s R.C. 2929.14(C)(4)(b) finding, his assignment of error is found not well-taken. IV. Conclusion Based on the foregoing, the judgment of the Wood County Court of Common Pleas is affirmed. Pursuant to App.R. 24, costs of this appeal are assessed to Baugh. Judgment affirmed. A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. Christine E. Mayle, J. JUDGE Myron C. Duhart, J. JUDGE Charles E. Sulek, J. CONCUR. JUDGE This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/. 10.