[Cite as State v. Davis, 2026-Ohio-3800.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY
STATE OF OHIO,
CASE NO. 8-25-19
PLAINTIFF-APPELLEE,
v.
TERRY L. DAVIS, OPINION AND
JUDGMENT ENTRY
DEFENDANT-APPELLANT.
Appeal from Logan County Common Pleas Court
General Division
Trial Court No. CR 25 06 0093
Judgment Affirmed
Date of Decision: September 28, 2026
APPEARANCES:
Brian A. Smith for Appellant
Eric C. Stewart for Appellee
Case No. 8-25-19
MILLER, J.
{¶1} Defendant-appellant, Terry L. Davis (“Davis”), appeals the September
10, 2025 judgment of sentence of the Logan County Court of Common Pleas. For
the reasons that follow, we affirm.
{¶2} On May 26, 2025, a spectator at a Memorial Day parade observed a
man, later identified as Davis, taking photographs of the buttocks of young girls.
An investigating officer confronted Davis and asked to see the photographs on his
phone, and observed a photograph zoomed in on the buttocks of a young girl at the
parade. Davis consented to further review of the phone’s contents, and officers
uncovered hundreds of photographs and screenshots of minor girls in a state of
nudity or engaging in sexual acts.
{¶3} On June 10, 2025, the Logan County Grand Jury indicted Davis on 25
counts of pandering sexually-oriented matter involving a minor or impaired person
in violation of R.C. 2907.322(A)(5), fourth-degree felonies. Davis initially entered
not-guilty pleas to the indictment.
{¶4} Davis appeared for a change-of-plea hearing on August 5, 2025,
wherein he withdrew his pleas of not guilty and entered guilty pleas to all 25 counts.
The trial court accepted Davis’s guilty pleas and found him guilty.
{¶5} At a sentencing hearing on September 9, 2025, the trial court sentenced
Davis to 12 months in prison on each count. Further, the court ordered Counts One
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through Sixteen to be served consecutively to each other and Counts Seventeen
through Twenty-Five to be served concurrently to each other and concurrently to
Counts One through Sixteen for an aggregate term of 16 years in prison. Davis was
also informed of his duty to register as a Tier II sex offender.
{¶6} Davis filed a timely notice of appeal. He raises two assignments of
error for our review.
First Assignment of Error
The trial court committed plain error in failing to merge Counts
One through Twenty-Five of the Indictment for purposes of
sentencing, as Counts One through Twenty-Five of the
Indictment constituted allied offenses of similar import under
R.C. 2941.25, in violation of Appellant’s right against Double
Jeopardy under the Fifth and Fourteenth Amendments to the
United States Constitutions and Article I, Section 10 of the Ohio
Constitution.
Second Assignment of Error
Because the record does not support the trial court’s findings
pursuant to R.C. 2929.14(C)(4), the trial court’s imposition of
consecutive sentences was, by clear and convincing evidence, not
supported by the record.
{¶7} On appeal, Davis raises two challenges to his sentence. First, he argues
that the trial court erred by not merging the 25 counts of pandering sexually-oriented
matter involving a minor or impaired person. Second, Davis alleges that his
consecutive sentences were not supported by the record.
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{¶8} We first address Davis’s argument that the trial court erred by not
merging his sentences for each of the 25 counts.
Allied-Offenses Review
{¶9} We review de novo whether offenses are allied offenses of similar
import. State v. Tall, 2023-Ohio-1853, ¶ 7 (3d Dist.). “De novo review is
independent, without deference to the lower court’s decision.” State v. Hudson,
2013-Ohio-647, ¶ 27 (3d Dist.).
R.C. 2941.25, Ohio’s multiple-count statute, provides:
(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the
indictment or information may contain counts for all such offenses,
but the defendant may be convicted of only one.
(B) Where the defendant’s conduct constitutes two or more offenses
of dissimiliar import, or where his conduct results in two or more
offenses of the same or similar kind committed separately or with a
separate animus as to each, the indictment or information may contain
counts for all such offenses, and the defendant may be convicted of
all of them.
{¶10} The Supreme Court of Ohio has directed the use of a three-part test to
determine whether a defendant can be convicted of multiple offenses:
As a practical matter, when determining whether offenses are allied
offenses of similar import within the meaning of R.C. 2941.25, courts
must ask three questions when the defendant’s conduct supports
multiple offenses: (1) Were the offenses dissimilar in import or
significance? (2) Were they committed separately? and (3) Were they
committed with separate animus or motivation? An affirmative
answer to any of the above will permit separate convictions. The
conduct, the animus, and the import must all be considered.
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State v. Ruff, 2015-Ohio-995, ¶ 31.
{¶11} “[T]wo or more offenses of dissimilar import exist within the meaning
of R.C. 2941.25(B) when the defendant’s conduct constitutes offenses involving
separate victims or if the harm that results from each offense is separate and
identifiable.” Id. at ¶ 23. “At its heart, the allied-offense analysis is dependent upon
the facts of a case because R.C. 2941.25 focuses on the defendant’s conduct.” Id.
at ¶ 26. “[A] defendant’s conduct that constitutes two or more offenses against a
single victim can support multiple convictions if the harm that results from each
offense is separate and identifiable from the harm of the other offense.” Id.
{¶12} The term “animus” means “purpose or, more properly, immediate
motive.” State v. Logan, 60 Ohio St.2d 126, 131 (1979), abrogation recognized in
Ruff. “Like all mental states, animus is often difficult to prove directly, but must be
inferred from the surrounding circumstances.” Id. “Thus, the manner in which a
defendant engages in a course of conduct may indicate distinct purposes.” State v.
Whipple, 2012-Ohio-2938, ¶ 38 (1st Dist.). “Courts should consider whether facts
appear in the record that ‘distinguish the circumstances or draw a line of distinction
that enables a trier of fact to reasonably conclude separate and distinct crimes were
committed.’” Id., quoting State v. Glenn, 2012-Ohio-1530, ¶ 9 (8th Dist.).
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Analysis: Merger
{¶13} Davis argues that all 25 of his charges for pandering sexually-oriented
matter involving a minor or impaired person should have merged because they
charged the same offenses, bore the same offense date, and were based on
possession of images found on the same phone. Davis also contends that the State
did not establish a specific number of victims and, accordingly, the trial court is
prevented from a finding of separate and identifiable harm under the merger
doctrine. Davis admits that his trial counsel did not object to the refusal to merge
at the sentencing hearing, so Davis frames the issue as plain error.
{¶14} The State replies that Davis forfeited the merger issue by failing to
object at sentencing and that review is limited to plain error review. With respect
to the merits, the State argues that Ohio courts have repeatedly held that multiple
counts of pandering sexually-oriented matter involving separate images or files do
not merge because each image or file reflects a separate animus and separately
identifiable harm.
{¶15} After reviewing the record, we find that the trial court did not err by
not merging the 25 charges of pandering sexually-oriented matter involving a minor
or impaired person. The record reveals that hundreds of sexually-explicit images
and videos of minor females were found on Davis’s phone, but the 25 counts in the
indictment were based on 25 specific images of prepubescent minors engaged in
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sexual conduct. The PSI described the images as various sex acts with different
victims and different perpetrators.
{¶16} Ohio courts have held that “the act of downloading ‘each file of child
pornography’ was done with a separate animus and ‘each downloaded file was a
crime against a separate victim or victims.’” State v. Lautanen, 2023-Ohio-1945, ¶
101 (11th Dist.), quoting State v. Duhamel, 2015-Ohio-3145, ¶ 62 (8th Dist.).
“‘“Individuals who view or circulate child pornography harm the child in several
ways,’” including ‘“by perpetuating the abuse’” and ‘“by invading the child’s
privacy.”’” (Emphasis sic.) State v. Vanausdal, 2016-Ohio-7735, ¶ 13 (3d Dist.),
quoting State v. Starcher, 2015-Ohio-5250, ¶ 36 (5th Dist.), quoting Duhamel at ¶
61.
{¶17} Davis claims that because the record does not contain proof of the
specific time each image was downloaded or first possessed, the convictions are
subject to merger because they theoretically could have been downloaded
simultaneously. Yet, the record indicates that Davis captured the images at issue by
taking screenshots of websites he viewed. Courts have held that “[e]ven a ‘slight’
temporal separation of the offenses can establish separate offenses.” Vanausdal at
¶ 14, citing State v. Norris, 2015-Ohio-2857, ¶ 18 (8th Dist.) and State v. Taylor,
2014-Ohio-3647, ¶ 12 (2d Dist.). Moreover, in State v. Eal, 2012-Ohio-1373 (10th
Dist.), the Tenth District Court of Appeals held that each individual image
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represents “a new and distinct crime” and that “‘[t]he mere fact that the crimes
occurred in quick succession . . . does not mean that they were not committed
separately or with separate animus.’” Eal at ¶ 93, quoting State v. Blanchard, 2009-Ohio-1357, ¶ 12 (8th Dist.), rev’d on other grounds, State v. Williams, 2011-Ohio3374. Furthermore, courts have held that “a single download of multiple images
may result in separate charges for each downloaded image.” State v. Sargent, 2025-Ohio-2579, ¶ 33 (7th Dist.), citing Lautanen at ¶ 104.
{¶18} The plain-error posture further supports an affirmance. As Davis
concedes, he did not object to the refusal to merge at sentencing. “Plain errors or
defects affecting substantial rights may be noticed although they were not brought
to the attention of the court.” State v. Campbell, 2015-Ohio-1409, ¶ 16 (12th Dist.).
Here, the record identifies 25 separate images and the controlling merger framework
permits separate convictions where the offenses were committed separately, with
separate animus, or with separate identifiable harm. Accordingly, Davis is unable
to identify any merger error, much less plain error.
{¶19} Davis’s first assignment of error is overruled.
Consecutive Sentencing Review
{¶20} Under R.C. 2953.08(G)(2), an appellate court may reverse a sentence
“only if it determines by clear and convincing evidence that the record does not
support the trial court’s findings under relevant statutes or that the sentence is
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otherwise contrary to law.” State v. Marcum, 2016-Ohio-1002, ¶ 1. Clear and
convincing evidence is that “‘which will produce in the mind of the trier of facts a
firm belief or conviction as to the facts sought to be established.’” Id. at ¶ 22,
quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.
Relevant Authority: Consecutive Sentencing
{¶21} “Except as provided in . . . division (C) of section 2929.14, . . . a prison
term, jail term, or sentence of imprisonment shall be served concurrently with any
other prison term, jail term, or sentence of imprisonment imposed by a court of this
state, another state, or the United States.” R.C. 2929.41(A). R.C. 2929.14(C)
provides:
(4) [T]he court may require the offender to serve the prison terms
consecutively if the court finds that the consecutive service is
necessary to protect the public from future crime or to punish the
offender and that consecutive sentences are not disproportionate to the
seriousness of the offender’s conduct and to the danger the offender
poses to the public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses while
the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the
Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or more
of the multiple offenses so committed was so great or unusual that no
single prison term for any of the offenses committed as part of any of
the courses of conduct adequately reflects the seriousness of the
offender’s conduct.
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(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
{¶22} R.C. 2929.14(C)(4) requires a trial court to make specific findings on
the record when imposing consecutive sentences. States v. Hites, 2012-Ohio-1892,
¶ 11 (3d Dist.). Specifically, the trial court must find: (1) consecutive sentences are
necessary to either protect the public or punish the offender, (2) the sentences would
not be disproportionate to the offense committed; and (3) one of the factors in R.C.
2929.14(C)(4)(a), (b), or (c) applies. Id.
{¶23} The trial court must state the required findings at the sentencing
hearing prior to imposing consecutive sentences and incorporate those findings into
its sentencing entry. State v. Sharp, 2014-Ohio-4140, ¶ 50 (3d Dist.), citing State v.
Bonnell, 2014-Ohio-3177, ¶ 29. A trial court “has no obligation to state reasons to
support its findings” and is not “required to give a talismanic incantation of the
words of the statute, provided that the necessary findings can be found in the record
and are incorporated into the sentencing entry.” Bonnell at ¶ 37.
{¶24} Furthermore, pursuant to R.C. 2953.08(G)(2)(a), appellate court may
only “modify or vacate consecutive sentences if it clearly and convincingly finds
that the record does not support the trial court’s consecutive-sentence findings.”
State v. Gwynne, 2023-Ohio-3851, ¶ 24.
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Analysis: Consecutive Sentences
{¶25} Davis does not argue that the trial court failed to make the requisite
consecutive-sentencing findings under R.C. 2929.14(C)(4). Rather, he contends the
record does not support the trial court’s findings.
{¶26} At the sentencing hearing, the trial court stated:
The Court finds that consecutive sentences are necessary to protect
the public from future crime and to punish the defendant and that
consecutive sentences are not disproportionate to the seriousness of
the defendant’s conduct and to the danger the defendant poses to the
public.
The Court further finds . . . that the defendant’s history of criminal
conduct demonstrates consecutive sentences are necessary to protect
the public from future crime by the defendant and, secondly, 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 was so great or unusual that no single prison term for any of
the offenses committed as part of the courses of conduct adequately
reflects the seriousness of the offender’s conduct.
(Sept. 9, 2025 Tr. at 14-15).
{¶27} Further, the trial court memorialized those findings in its sentencing
entry. Accordingly, the record reflects that the trial court made the appropriate R.C.
2929.14(C)(4) findings before imposing consecutive sentences and incorporated
those findings into its sentencing entry.
{¶28} Davis argues that the trial court had the option to sentence him to a
community-based correctional facility (“CBCF”) to allow him to receive treatment.
Davis contends that treatment and rehabilitation, rather than punishment, would
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have been consistent with the principles and purposes of sentencing. He also
submits that because he was not “accused of creating the content found on his
phone” and was also not accused of disseminating or distributing the images that
were found on his phone the harm he caused was not “so great or unusual” as to
justify consecutive sentences. (Appellant’s Brief at 18-19).
{¶29} However, after reviewing the record, we find that the record supports
the trial court’s consecutive-sentencing findings.
{¶30} With respect to the necessity and proportionality findings, Davis
reasons that because he has expressed a desire for treatment and that placement in a
CBCF was a possibility, the trial court erred by not only sentencing him to
consecutive sentences, but also to prison. However, the record belies his claims.
{¶31} The investigation unearthed hundreds of images and videos, and the
25 charged counts were based on 25 specific images of prepubescent minors
engaged in sexual conduct. Furthermore, the conduct that led officers to initiate an
investigation and discover the contraband was witnessed by bystanders at a
community parade who observed Davis taking zoomed-in photographs of juvenile
female’s buttocks.
{¶32} Davis’s assertion that consecutive-sentences are disproportionate
because his offenses were fourth-degree possession offenses, rather than offenses
relating to the creation or distribution of such material, also does not establish that
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the record clearly and convincingly fails to support consecutive sentences. The trial
court imposed a term of 12 months in prison for each count, which is within the
statutory range for fourth-degree felonies. The relevant question is not whether a
lesser sentence could also have been imposed, but whether this court can clearly and
convincingly find that the record does not support the trial court’s findings.
{¶33} Moreover, the record supports the trial court’s finding that Davis’s
history of criminal conduct supports consecutive sentences. Davis was convicted
in 1999 on eight counts of rape of his daughter and was sentenced to twenty years
in prison. Within nine months of his completion of post-release control in August
2024, he committed the present offenses.
{¶34} Furthermore, at the sentencing hearing, Davis explained the depths of
his addiction to the trial court:
I was really attempting to try and figure out why I was thinking the
way I did back in the 90’s . . . that caused me to offend against my
daughter. I was basically trying to self-help myself and found this by
accident[.] I realize . . . it . . . like [my trial counsel] said, more of an
addiction. For some strange reason I couldn’t help myself, and I was
thinking that this is not really what I want in my life, so . . . I would
definitely like to have some serious counseling and some serious
mental health help would help me a lot . . . because I kind of really
just don’t like it anymore. Like I say, it got to the point where it got
boring, unexciting, just almost to the point I was hating myself over
what I was doing and I just couldn’t take it anymore.
(Sept. 9, 2025 Tr. at 7-8).
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{¶35} Additionally, the PSI indicates that when Davis was interviewed at the
jail, he acknowledged that he had an addiction to child pornography, was interested
in minor female’s body types, knew the behavior was wrong, and felt that part of
him believed that he should spend the rest of his life in prison.
{¶36} The record also supports the R.C. 2929.14(C)(4)(c) finding that the
instant cases were committed as part of a course of conduct and that the harm caused
by the offenses was so great or usual that no single prison term for any of the
offenses committed as part of the course of conduct adequately reflects the
seriousness of the offender’s conduct. The trial court considered that the offenses
were part of a broader course of possessing child-sexual-abuse material. As the
State noted it had “not encountered a case where the amount of child porn that [was]
found [was] to this level” and described the amount of child sex abuse material
found on Davis’s phone as “inordinate.” (Sept. 9, 2025 Tr. at 4).
{¶37} Furthermore, courts have held that “‘[e]very video or image of child
pornography on the internet constitutes a permanent record of that particular child’s
sexual abuse. The harm caused by these videos is exacerbated by their circulation.’”
State v. Sargent, 2025-Ohio-2579, ¶ 31 (7th Dist.), quoting Duhamel, 2015-Ohio3145, at ¶ 54. As courts have noted, “images depicting rape or abuse,” such as the
many abhorrent images found on Davis’s phone, constitute a particularly
exceptional type of harm. Id., citing Duhamel at ¶ 55. See State v. Shiveley, 2022--14-Case No. 8-25-19
Ohio-4036, ¶ 19 (12th Dist.) (finding possessing sexually explicit photographs of
children is a great or unusual harm and noting that the images “have the possibility
of living on indefinitely” and “as a result of this permanence, we find it difficult to
describe this harm as anything other than extreme, uncommon, and exceptional.”).
{¶38} Accordingly, having reviewed the record, we find that Davis has failed
to demonstrate that the record clearly and convincingly does not support the trial
court’s consecutive-sentence findings. See Gwynne, 2023-Ohio-3851, at ¶ 22.
{¶39} Davis’s second assignment of error is overruled.
{¶40} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the Logan County Court
of Common Pleas.
Judgment Affirmed
ZIMMERMAN, P.J. and WILLAMOWSKI, J., concur.
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JUDGMENT ENTRY
For the reasons stated in the opinion of this Court, the assignments of error
are overruled and it is the judgment and order of this Court that the judgment of the
trial court is affirmed with costs assessed to Appellant for which judgment is hereby
rendered. The cause is hereby remanded to the trial court for execution of the
judgment for costs.
It is further ordered that the Clerk of this Court certify a copy of this Court’s
judgment entry and opinion to the trial court as the mandate prescribed by App.R.
27; and serve a copy of this Court’s judgment entry and opinion on each party to the
proceedings and note the date of service in the docket. See App.R. 30.
Mark C. Miller, Judge
William R. Zimmerman, Judge
John R. Willamowski, Judge
DATED:
/jlm
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