Soerensen vs Jackson, Jackson, MyEducation and ASSE International, Inc.

Note from CSFES: Please scroll down to read Soerensen vs. Jackson, Jackson, MyEducation and ASSE International, Inc.

Kristin Beul, et al., Plaintiffs-Appellees,
v.
ASSE International, Inc., et al., Defendants-Appellants,

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
No. 99-3978
September 7, 2000, Argued-November 15, 2000, Decided

Lead opinion by Posner Posner, Circuit Judge. In this diversity suit for negligence, governed (so far as the substantive issues are concerned) by Wisconsin law, the jury returned a verdict finding that plaintiff Kristin Beul's damages were $ 1,100,000 and that she was 41 percent responsible for them; in accordance with the verdict, judgment was entered against defendant ASSE International for $649,000 (59 percent of $1.1 million). The other parties can be ignored. The appeal raises issues of both tort law and civil procedure.

The defendant is a nonprofit corporation that operates international student exchange programs. For a fee of $2,000 it placed Kristin, a 16-year-old German girl who wanted to spend a year in the United States, with the Bruce family of Fort Atkinson, Wisconsin. The family, which consisted of Richard Bruce, age 40, his wife, and their 13-year-old daughter, had been selected by Marianne Breber, the defendant's Area Representative in the part of the state that includes Fort Atkinson. Breber is described in the briefs as a "volunteer," not an employee; the only payment she receives from ASSE is reimbursement of her expenses. Nothing in the appeal, however, turns either on her "volunteer" status or on ASSE's nonprofit status. Charities are not immune from tort liability in Wisconsin, Kojis v. Doctors Hospital, 12 Wis. 2d 367, 107 N.W.2d 131 (Wis. 1961), and ASSE does not deny that if Breber was negligent it is liable for her negligence under the doctrine of respondeat superior, even though she was not an employee of ASSE. The doctrine is nowadays usually described as making an employer liable for the torts of his employees committed within the scope of their employment, but strictly speaking the liability is that of a "master" for the torts of his "servant" and it extends to situations in which the servant is not an employee, provided that he is acting in a similar role, albeit as a volunteer. E.g., Heims v. Hanke, 5 Wis. 2d 465, 93 N.W.2d 455, 457-58 (Wis. 1958), overruled on other grounds 445 by Butzow v. Wausau Memorial Hospital, 51 Wis. 2d 281, 187 N.W.2d 349, 353-54 (Wis. 1971); Morgan v. Veterans of Foreign Wars, 206 Ill. App. 3d 569, 565 N.E.2d 73, 77, 151 Ill. Dec. 802 (Ill. App. 1990); Restatement (Second) of Agency § 225 (1958). In Morgan, as in this case, the defendant was a charity.

There is also no argument that the contract between ASSE and Kristin's parents is the exclusive source of ASSE's legal duties to Kristin. Negligence in the performance of a contract that foreseeably results in personal injury, including as here emotional distress, is actionable under tort law. See, e.g., Kuehn v. Childrens Hospital, 119 F.3d 1296 (7th Cir. 1997). As we pointed out in Rardin v. T & D Machine Handling, Inc., 890 F.2d 24, 29 (7th Cir. 1989), "tort law is a field largely shaped by the special considerations involved in personal-injury cases, as contract law is not. Tort doctrines are, therefore, prima facie more suitable for the governance of such cases than contract doctrines are" even when victim and injurer are linked by contract. See also Fireman's Fund American Ins. Cos. v. Burns Electronic Security Services, Inc., 93 Ill. App. 3d 298, 417 N.E.2d 131, 134, 48 Ill. Dec. 729 (Ill. App. 1980).

As the sponsor of a foreign exchange student, ASSE was subject to regulations of the United States Information Agency that require sponsors to train their agents, "monitor the progress and welfare of the exchange visit," and require a "regular schedule of personal contact with the student and host family." 22 C.F.R. §§ 514.10(e)(2), 514.25 (d)(1), (4) (now §§ 62.10(e)(2), 62.25(d)(1), (4)). These regulations are intended for the protection of the visitor, see "Exchange Visitor Program," 58 Fed. Reg. 15,180, 15,190 (1993) (statement of USIA accompanying promulgation of 26 C.F.R. § 514.25), and the jury was therefore properly instructed, under standard tort principles not challenged by ASSE, that it could consider the violation of them as evidence of negligence. There is no argument that the regulations create a private federal right of suit that would allow the plaintiffs to sue ASSE under the federal-question jurisdiction of the federal courts (and we have found no case suggesting there is such a right), or that Wisconsin is legally obligated to use the regulations to define the duty of care of a sponsor sued under state tort law. (In other words, there is no argument that the federal regulations have preemptive force in state tort litigation.) But the district court was entitled to conclude that a state court would look to the regulations for evidence of the sponsor's duty of care. Courts in tort cases commonly take their cues from statutes or regulations intended to protect the safety of the class to which the tort plaintiff belongs. See, e.g., Bennett v. Larsen Co., 118 Wis. 2d 681, 348 N.W.2d 540, 548-49 (Wis. 1984).

ASSE is also a member of a private association of sponsors of foreign exchange students, the Council on Standards for International Educational Travel, which requires members to "maintain thorough, accurate, and continual communication with host families and school authorities." A jury could reasonably consider the Council's statement as additional evidence of the standard of care applicable to sponsors and it could also accept the plaintiff's argument that due care required Breber to try to develop rapport with Kristin so that Kristin would trust and confide in her and so that Breber could pick up any signals of something amiss that Kristin might be embarrassed to mention unless pressed.

Kristin Beul arrived in Wisconsin from Germany on September 7, 1995, and was met at the airport by Richard Bruce and his daughter. Marianne Breber did not go to the airport to meet Kristin. In fact, apart from a brief orientation meeting at a shopping mall in September with Kristin and one other foreign exchange student, at which Breber gave Kristin her phone number, she didn't meet with Kristin until 446 January 21 of the following year--under unusual circumstances, as we'll see. She did call the Bruce home a few times during this period and spoke briefly with Kristin once or twice, but she made no effort to make sure that Kristin was alone when they spoke. She would ask in these calls how Kristin was doing and Kristin would reply that everything was fine. Breber did not talk to Mrs. Bruce, who would have told her that she was concerned that her husband seemed to be developing an inappropriate relationship with Kristin.

Kristin had led a sheltered life in Germany. She had had no sexual experiences at all and in fact had had only two dates in her lifetime. On November 17, 1995, Richard Bruce, who weighed almost 300 pounds and who was alone at home at the time except for Kristin, came into the loft area in which she slept and raped her.

This was the start of a protracted sexual relationship. In the months that followed, Bruce frequently would call the high school that Kristin was attending and report her ill. Then, with Mrs. Bruce off at work and the Bruce's daughter at school, Bruce would have sex with Kristin. By February 22, Kristin had been absent 27 days from school. Bruce brandished a gun and told Kristin that he would kill himself if she told anyone what they were doing together.

Curiously, in January Bruce and Kristin called Marianne Breber and told her that Mrs. Bruce appeared to be jealous of the time that her husband was spending with Kristin. Bruce invited Breber to dinner on January 21. Breber did not meet privately with either Kristin or Mrs. Bruce on that occasion, and she observed nothing untoward. In February, however, Mrs. Bruce told Breber that she and her husband were getting divorced, and Breber forthwith found another host family to take in Kristin. Kristin didn't want to leave the Bruce home, but on February 22 Breber arrived there with a sheriff's deputy to remove Kristin. The deputy asked Kristin in the presence of Richard Bruce and his daughter whether there was any inappropriate sexual activity between Richard and Kristin, and Kristin answered "no." The same day Breber, upon calling Kristin's school to tell them that Kristin would be out for a few days in connection with her change of residence, learned for the first time of Kristin's many absences.

Kristin lived with Breber for a few days between host families, but Breber didn't use the occasion to inquire about any possible sexual relationship between Kristin and Bruce. Breber told the new host family that Kristin was not to contact Bruce for a month, but she did not tell Bruce not to have any contact with Kristin. They continued to correspond and talk on the phone. Kristin had decided that she was in love with Bruce and considered herself engaged to him.

In April, Mrs. Bruce discovered some of Kristin's love letters and alerted the authorities. A sheriff's deputy interviewed Bruce. The next day Bruce, who had committed a misdemeanor by having sex with a 16 year old, Wis. Stat. § 948.09, killed himself, leaving a note expressing fear of jail. It is undisputed that the events culminating in Bruce's suicide inflicted serious psychological harm on Kristin; the jury's assessment of her damages is not claimed to be excessive.

The defendant argues that it was entitled to judgment as a matter of law, or alternatively to a new trial because of trial error. The first argument divides into three: there was insufficient proof of a causal relationship between the defendant's negligence in failing to keep closer tabs on Kristin Beul and her sexual involvement with Bruce culminating in his suicide; Bruce's criminal activity was the sole, or superseding, cause of her harm; and the harm was too "remote" in a legal sense from the defendant's failure of due care to support liability.

Since Kristin was determined to conceal her relationship with Bruce, the defendant argues, no amount of care by 447 Breber would have warded off the harm that befell Kristin; she would have stonewalled, however pertinacious Breber had been in her questioning. This is conceivable, and if true would let ASSE off the hook; if there was no causal relation between the defendant's negligence and the plaintiff's harm, there was no tort. E.g., Merco Distributing Corp. v. Commercial Police Alarm Co., 84 Wis. 2d 455, 267 N.W.2d 652 (Wis. 1978); Vastola v. Connecticut Protective System, Inc., 133 Conn. 18, 47 A.2d 844, 845 (Conn. 1946); Guthrie v. American Protection Industries, 160 Cal. App. 3d 951, 206 Cal. Rptr. 834, 836 (Cal. App. 1984).

But it is improbable, and the jury was certainly not required to buy the argument. Suppose Breber had inquired from the school how Kristin was doing--a natural question to ask about a foreigner plunged into an American high school. She would have learned of the numerous absences, would (if minimally alert) have inquired about them from Kristin, and would have learned that Kristin had been "ill" and that Richard Bruce had been home and taken care of her. At that point the secret would have started to unravel.

As for the argument that Bruce's misconduct was so egregious as to let ASSE off the hook, it is true that the doctrine of "superseding cause" can excuse a negligent defendant. Suicide by a sane person, unless clearly foreseeable by the tortfeasor, for example a psychiatrist treating a depressed person, is a traditional example of the operation of the doctrine. E.g., McMahon v. St. Croix Falls School District, 228 Wis. 2d 215, 596 N.W.2d 875, 879 (Wis. App. 1999); Wyke v. Polk County School Board, 129 F.3d 560, 574-75 (11th Cir. 1997); Bruzga v. PMR Architects, P.C., 141 N.H. 756, 693 A.2d 401 (N.H. 1997); Edwards v. Tardif, 240 Conn. 610, 692 A.2d 1266, 1269 (Conn. 1997); W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 44, p. 311 (5th ed. 1984). So if Bruce's boss had refused him a raise and Bruce had responded by killing himself, the boss even if somehow negligent in failing to give him the raise would not be considered the legal cause of the death. Or if through the carelessness of the driver a truck spilled a toxic substance and a passerby scraped it up and poisoned his mother-in-law with it, the driver would not be liable to the mother-in-law's estate; the son-in-law's criminal act would be deemed a superseding cause. See Giebel v. Richards, 224 Wis. 2d 468, 591 N.W.2d 901 (Wis. App. 1999); Henry v. Merck & Co., 877 F.2d 1489, 1494-97 (10th Cir. 1989); Rowe v. State Bank of Lombard, 125 Ill. 2d 203, 531 N.E.2d 1358, 1368, 126 Ill. Dec. 519 (Ill. 1988); Shelton v. Board of Regents, 211 Neb. 820, 320 N.W.2d 748, 752-53 (Neb. 1982).

Animating the doctrine is the idea that it is unreasonable to make a person liable for such improbable consequences of negligent activity as could hardly figure in his deciding how careful he should be. Cf. Schuster v. Altenberg, 144 Wis. 2d 223, 424 N.W.2d 159, 165 (Wis. 1988). The doctrine is not applied, therefore, when the duty of care claimed to have been violated is precisely a duty to protect against ordinarily unforeseeable conduct, as in our earlier example of a psychiatrist treating depression. The existence of the duty presupposes a probable, therefore a foreseeable, consequence of its breach. (All that "foreseeable" means in tort law is probable ex ante, that is, before the injury that is the basis of the tort suit.) Thus a hospital that fails to maintain a careful watch over patients known to be suicidal is not excused by the doctrine of superseding cause from liability for a suicide, e.g., DeMontiney v. Desert Manor Convalescent Center, 144 Ariz. 6, 695 P.2d 255, 259-60 (Ariz. 1985), any more than a zoo can escape liability for allowing a tiger to escape and maul people on the ground that the tiger is the superseding cause of the mauling. City of Mangum v. Brownlee, 181 Okla. 515, 75 P.2d 174 (Okla. 1938); see also Scorza v. Martinez, 683 So. 2d 1115, 1117 (Fla. App. 1996); Behrens v. Bertram 448 Mills Circus, Ltd., [1957] 2 QB 1, 1 All E.R. 583 (1957).

So Kristin's high school would not have been liable for the consequences of Bruce's sexual activity with Kristin even if the school should have reported her frequent absences to Breber; the criminal activities with their bizarre suicide sequel were not foreseeable by the school. But part of ASSE's duty and Breber's function was to protect foreign girls and boys from sexual hanky-panky initiated by members of host families. Especially when a teenage girl is brought to live with strangers in a foreign country, the risk of inappropriate sexual activity is not so slight that the organization charged by the girl's parents with the safety of their daughter can be excused as a matter of law from making a responsible effort to minimize the risk. See, e.g., Niece v. Elmview Group Home, 131 Wn.2d 39, 929 P.2d 420, 427 (Wash. 1997); R.E. v. Alaska, 878 P.2d 1341, 1346-48 (Alaska 1994); Juarez v. Boy Scouts of America, Inc., 80 Cal. App. 4th 876, 97 Cal. Rptr. 2d 12, 31 (Cal. App. 2000); Phillips v. Deihm, 213 Mich. App. 389, 541 N.W.2d 566, 573 (Mich. App. 1995). Sexual abuse by stepfathers is not uncommon, see, e.g., Diana E.H. Russell, "The Prevalance and Seriousness of Incestuous Abuse: Stepfathers vs. Biological Fathers," 8 Child Abuse & Neglect 15 (1984), and the husband in a host family has an analogous relationship to a teenage visitor living with the family.

It is true (we turn now to the issue of remoteness) that when through the negligence of an alarm company, to which ASSE in its role as protector of foreign students from the sexual attentions of members of host families might perhaps be analogized, a fire or burglary is not averted or controlled in time, the company is generally not liable for the consequences; the consequences are deemed too remote. E.g., Edwards v. Honeywell, Inc., 50 F.3d 484, 491 (7th Cir. 1995); Fireman's Fund American Ins. Cos. v. Burns Electronic Security Services, Inc., supra, 417 N.E.2d at 132-33; cf. Fireman's Fund Ins. Co. v. Morse Signal Devices, 151 Cal. App. 3d 681, 198 Cal. Rptr. 756, 760 (Cal. App. 1984); see also Heitsch v. Hampton, 167 Mich. App. 629, 423 N.W.2d 297, 299 (Mich. App. 1988). There are two related considerations. One is that so many factors outside the alarm company's control determine the likelihood and consequences (whether in property loss or personal injury) of a failure of its alarm to summon prompt aid on a particular occasion that the company is bound to lack the information that it needs to determine what level of care to take to prevent a failure of its system. See, e.g., Guthrie v. American Protection Industries, supra, 206 Cal. Rptr. at 836. This basis of the doctrine is the same as that of the doctrine of superseding cause. A harm is not foreseeable in the contemplation of the law if the injurer lacked the information he needed to determine whether he must use special care to avert the harm. See, e.g., Lodge v. Arett Sales Corp., 246 Conn. 563, 717 A.2d 215, 223 (Conn. 1998). The second point is that the alarm company is not the primary accident avoider but merely a backup, and the principal responsibility for avoiding disaster lies with the victim. See, e.g., Rardin v. T & D Machine Handling, Inc., supra, 890 F.2d at 27; EVRA Corp. v. Swiss Bank Corp., 673 F.2d 951, 957-58 (7th Cir. 1982). The points are related because both involve the difficulty a backup or secondary protector against disaster has in figuring out the consequence of a lapse on its part. Neither point supports ASSE, which was standing in the shoes of the parents of a young girl living in a stranger's home far from her homeland and could reasonably be expected to exercise the kind of care that the parents themselves would exercise if they could to protect their 16-year-old daughter from the sexual pitfalls that lie about a girl of that age in those circumstances. ASSE assumed a primary role in the protection of the girl.

So the plaintiff was entitled to get to the jury, and we turn to the two alleged errors in the procedure at trial. The first concerns the judge's response to a question submitted to him by the jury during its deliberations. To try to discipline the jury's thinking, Wisconsin makes the submission of a special verdict the default rule in all civil cases. Wis. Stat. § 805.12(1) and Judicial Council Committee's 1974 Note thereto; see Anderson v. Seelow, 224 Wis. 230, 271 N.W. 844, 846 (Wis. 1937). In a negligence case, therefore, the jury will be asked to enter separately on the verdict form the amount of damages and the percentage of the plaintiff's comparative fault and not make the "bottom line" computation, which involves deducting from the amount of damages that amount times the plaintiff's percentage of comparative fault. The fear is that the jury will fill in the bottom line first and then work backwards, failing to give due consideration to the significance of the plaintiff's fault. McGowan v. Story, 70 Wis. 2d 189, 234 N.W.2d 325, 329 (Wis. 1975). The question the jury asked the judge in this case was, "What bearing do the negligence factors have on the amounts we may or may not choose to award?" The judge's answer, given after consultation with the lawyers, was that "the comparison factor, if you find both parties negligent, has a significant impact upon the award that the Court enters. . . . If you answer the comparison question, then it is a problem that's presented to the Court as to . . . how to apply those percentages to the damages." ASSE argues that this answer was inconsistent with the policy of Wisconsin law of keeping the jury from working backwards from the bottom line in completing the rest of the special verdict.

In making this argument ASSE assumes that the federal district court in a diversity case is bound not only by Wisconsin's presumption in favor of the use of special verdicts but also by whatever standard Wisconsin courts use to determine how a judge should respond to a jury's question arising from the use of a special verdict. That is incorrect. Wisconsin's affection for the special verdict is not limited to a particular area of law, which would suggest that it was motivated by a desire to shape substantive policy in that area.

Compare Herremans v. Carrera Designs, Inc., 157 F.3d 1118, 1123 (7th Cir. 1998); Harbor Ins. Co. v. Continental Bank Corp., 922 F.2d 357, 364 (7th Cir. 1990). Rules of general applicability and purely managerial character governing the jury, such as the form in which a civil jury is instructed, are quintessentially procedural for purposes of the Erie rule. See, e.g., Odekirk v. Sears Roebuck & Co., 274 F.2d 441, 445 (7th Cir. 1960); Turlington v. Phillips Petroleum Co., 795 F.2d 434, 441 (5th Cir. 1986); Seltzer v. Chesley, 512 F.2d 1030, 1035 (9th Cir. 1975); 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2555, p. 432 (1995). They are therefore supplied by federal law in diversity as in all other federal cases.

But supplied by what federal law here? Rule 49(a) of the Federal Rules of Civil Procedure authorizes but does not direct the use of special verdicts, and this is the rule that federal courts are to follow, as the cases hold without exception. E.g., Sadowski v. Bombardier Ltd., 539 F.2d 615, 622 (7th Cir. 1976); Geosearch, Inc. v. Howell Petroleum Corp., 819 F.2d 521, 527 (5th Cir. 1987); Shultz v. Rice, 809 F.2d 643, 650 (10th Cir. 1986); DeEugenio v. Allis-Chalmers Mfg. Co., 210 F.2d 409, 414-15 (3d Cir. 1954); Lang v. Rogney, 201 F.2d 88, 97 (8th Cir. 1953); 9A Wright & Miller, supra, § 2502, pp. 154-55. We think it follows that whether the federal court should try to keep the jury in the dark about the legal effect of the jury's answers to the questions posed to it by the special verdict is also a question of federal law, whether viewed as an interpretation of Rule 49(a) or as the creation of a federal common law of special verdicts to supplement the rule. E.g., Thedorf v. Lipsey, 237 F.2d 190 (7th Cir. 1956); Carvalho v. Raybestos-Manhattan, Inc., 794 F.2d 454, 457 n. 2 450 (9th Cir. 1986); Lowery v. Clouse, 348 F.2d 252, 260-61 (8th Cir. 1965). Although the cases (particularly in this court) make clear that the judge has no general duty to inform the jury of the legal consequences of its verdict, see, e.g., Freeman v. Chicago Park District, 189 F.3d 613, 616 (7th Cir. 1999), and intimate that in some circumstances the giving of such information might interfere with the jury's appraisal of the facts, e.g., Gullett v. St. Paul Fire & Marine Ins. Co., 446 F.2d 1100, 1105 (7th Cir. 1971), there is no rule against giving the information, Simms v. Village of Albion, 115 F.3d 1098, 1107 (2d Cir. 1997); Lowery v. Clouse, supra, 348 F.2d at 261; 9A Wright & Miller, supra, § 2509, p. 198, nor have we found any case in which the giving of it was held to be a reversible error. In fact, we find it difficult to conceive of such a case. As Lowery points out, since the judge could submit to the jury instead of a special verdict a general verdict with special interrogatories, a form of verdict that would reveal to the jury the legal consequences of its specific findings, there is no purpose in forbidding him to do the same thing with a special verdict.

All this is rather to one side of the present case, since in the particular circumstances presented here it is apparent that the judge gave as good an answer to the jury's question as he could have done, and a better answer than saying nothing and leaving the jury confused. Cf. Bollenbach v. United States, 326 U.S. 607, 612-13, (1946); Davis v. Greer, 675 F.2d 141, 145 (7th Cir. 1982); Testa v. Wal-Mart Stores, Inc., 144 F.3d 173, 176 (1st Cir. 1998). He made clear in the second part of his answer that the jurors were not to make the bottom-line computation. Had he said in the first part that their answer to the question of comparative fault would have no or an insignificant impact on the damages award, that might have been an invitation to them not to take it seriously; but he did not do that.

The defendant also complains about the following instruction to the jury: "You're instructed that the law of Wisconsin does not allow a child under the age of 18 to consent to an act of intercourse." This was a reference to the state's statutory rape law, but it was not elaborated further. The jury was instructed to consider the instructions as a whole and another instruction was that it was to consider Kristin's comparative fault. The jury assessed that fault at 41 percent, so obviously it did not think the age-of-consent instruction prevented it from considering Kristin's responsibility for the harm that befell her as a consequence of her sexual relationship with Bruce.

But should the jury have been told what the age of consent is in Wisconsin and, if so, was the information conveyed to the jury in the right way? The answer to the first question is yes. The age of consent fixed by a state represents a legislative judgment about the maturity of girls in matters of sex. Eighteen is a pretty high age of consent by today's standards and of course the law was not fixed by reference to German girls; but it is nonetheless a reminder that teenage children are not considered fully responsible in sexual matters, and this was something relevant to the jury's consideration of Kristin's share of responsibility for the disaster. The criminal law is frequently used to set a standard of care for civil tort cases--for the general principle, see, e.g., Bennett v. Larsen Co., supra, 348 N.W.2d at 548; Cutsforth v. Kinzua Corp., 267 Ore. 423, 517 P.2d 640, 647 (Ore. 1973); Southern Pacific Co. v. Watkins, 83 Nev. 471, 435 P.2d 498, 511 (Nev. 1967), and for its application to age of consent see Doe v. Greenville Hospital System, 323 S.C. 33, 448 S.E.2d 564, 566 (S.C. App. 1994); cf. Mary M. v. North Lawrence Community School Corp., 131 F.3d 1220, 1227 (7th Cir. 1997)--and that was essentially the use made of it here. It would have been error to instruct the jury that because Kristin was below the age of consent her comparative fault must be 451 reckoned at zero. That would have given too much force to the criminal statute in this civil case, for the statute cannot be considered a legislative judgment that minors are utterly incapable of avoiding becoming ensnared in sexual relationships. A comparative-fault rule, moreover, requires gradations of victim responsibility that are alien to the normal criminal prohibition. Victim fault is not a defense, either partial or complete, to criminal liability. It is not a defense to a charge of rape that, for example, the victim was dressed provocatively, or drunk, or otherwise careless in the circumstances in which the rape occurred.

It would have been better, though, if the jury had been told how it should take the age of consent into account in their deliberations. It should have been told that in deciding how much responsibility to assign to Kristin for the events that gave rise to the harm for which she was suing, it could consider that the state had made a judgment that girls below the age of 18 should be protected by the criminal law from sexual activity even if they agree to it. As it was, the jury was left to tease out the relation between the age-of-consent instruction and the comparative-fault instruction for itself. But we cannot think that it was other than a harmless error. Indeed, we are surprised that the jury assigned so large a responsibility to this young foreign girl virtually abandoned by the agency that was standing in for her parents. The jury verdict was rather favorable to the defendant than otherwise.

Affirmed.

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SCHUMANN | ROSENBERG

KIM SCHUMANN (CSB No. 170942)

Schumann@schumannRosenberg.com

'ERIC AREVALO (CSB No. 255725)

Arevalo@schumannRosenberg.com

3100 Bristol Street, Suite 100

Costa Mesa, CA 92626

Telephone: (714) 850-0210

Facsimile: (714) 850-0551

Attorneys for MILLIE ABILGAARD

SORENSEN, a Minor, by and through her

guardian, LONE ABILDGAARDE

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF ORANGE, CENTRAL JUSTICE CENTER

MILLIE ABILGAARD SOERENSEN, a Minor,

by and through her guardian, LONE

ABILDGAARD,

Plaintiff,

vs.

JOHN MILTON JACKSON, an individual;

RAYLEEN JACKSON, an individual;

MYEDUCATION, a foreign business entity;

ASSE INTERNATIONAL, INC., a California

Corporation; and DOES 1 to 100, inclusive,

Defendants

COMPLAINT

1. Negligence

2. Intentional Infliction of Emotional

Distress

3. Negligent Infliction of Emotional

Distress

4. Negligent Hiring, Supervision, or

Retention of Employee

5. Negligence

ASSIGNED FOR ALL PURPOSES TO THE HON. (Dept. )

ACTION FILED:

TRIAL DATE:

COMES NOW Plaintiff, MILLIE ABILGAARD SOERENSEN, a Minor, by and through her guardian, LONE ABILDGAARD, alleging causes of action against Defendants, JOHN MILTON JACKSON, RAYLEEN JACKSON, MY EDUCATION, and DOES 1 to 100, inclusive. Plaintiff alleges as follows:

GENERAL ALLEGATIONS

1. Plaintiff, MILLIE ABILGAARD SOERENSEN (hereinafter referred to as "Plaintiff" or "Millie Soerensen") is a Danish citizen, and current resident of the country of Denmark, and was, at all times relevant herein, a resident of the County of Ventura, State of California.

2. Plaintiff is informed and believes that Defendant, JOHN MILTON JACKSON (hereinafter referred to as "John Jackson"), is and was at all relevant times mentioned herein an individual, residing in the City of Oxnard, County of Ventura, State of California.

3. Plaintiff is informed and believes that Defendant, RAYLEEN JACKSON aka RAYLEEN SKRUCH aka RAYLEEN WALKER (hereinafter referred to as "Rayleen Jackson"), is and was at all relevant times mentioned herein an individual, residing in the City of Oxnard, County of Ventura, State of California.

4. Plaintiff is informed and believes that Defendant MYEDUCATION (hereinafter referred to as "MyEducation"), is and was at all relevant times mentioned herein a foreign business of unknown form, primarily engaged in the business of providing foreign exchange student placement services to individuals, with its principal place of business in the City of Copenhagen, Country of Denmark.

5. Plaintiff is informed and believes that Defendant, ASSE INTERNATIONAL, INC. (hereinafter referred to as "ASSE"), is and was at all relevant times mentioned herein a California Corporation, primarily engaged in the business of providing foreign exchange student placement services to individuals, with its principal place of business in the City of Laguna Beach, County of Orange, State of California.

6. This matter arises in the wake of a criminal sexual battery, wherein Defendant John Jackson pled guilty, and was convicted, of sexual battery against Plaintiff, Millie Soerensen, a minor.

7. The true names and capacities, whether individual, corporate, associate or otherwise of the Defendants named herein as DOES 1 to 100, inclusive, are unknown to the Plaintiff who therefore sues said Defendants by such fictitious names. Plaintiff will amend this Complaint to show their true names and capacities when the same shall have been fully and finally ascertained.

8. Plaintiff is informed and believes, and thereon alleges that each of the Defendants designated herein as a DOE is legally responsible, in some manner, for the events and happenings herein referred to, and legally caused damages to Plaintiff as herein alleged.

9. Plaintiff is informed and believes, and thereon alleges that Defendants, DOES 1 through 100, inclusive, and each of them, are citizens and residents of the State of California, and/or doing business in the State of California, and participated in or undertook obligations or rights arising out of the subject incident, engaged in actions or omissions, either intentional or negligent, regarding the events related to said incident.

10. At all times relevant to this action, each Defendant, including those fictitiously named Defendants, was the agent, servant, employee, partner, joint venturer, or surety of the other Defendants and was acting within the scope of that agency, employment, partnership, venture, or suretyship with the knowledge and consent or ratification of each of the other Defendants in doing the things alleged in this Complaint.

FACTUAL ALLEGATIONS

11. On or about September 2015, Plaintiff, a minor with limited English language proficiency, came to California as an exchange student, from Denmark, at great expense to her family back home, and was placed with a host family through MyEducation and ASSE.

12. Plaintiff is informed and believes and herein alleges that on or about September 19, 2015, Plaintiff was placed into the care of John Jackson and Rayleen Jackson by ASSE, who were to act as Plaintiff's host family.

13. On information and belief, Plaintiff alleges John Jackson held the position of Area Coordinator for ASSE, throughout the entire time Plaintiff was in John Jackson's care.

14. On information and belief, Plaintiff alleges that Plaintiff was told by ASSE that Plaintiff should not be in contact with her parents if any issues arose, but that Plaintiff should instead speak with ASSE, for which John Jackson, as Area Coordinator, was Plaintiff's point of contact.

15. Plaintiff further alleges that through this combination of discouraging parental contact and placing Plaintiff with the very person to whom Plaintiff was supposed to take concerns and complaints, ASSE created a situation ripe for the king of abuse Plaintiff suffered.

16. Plaintiff is informed and believes and herein alleges that shortly after Plaintiff began living with John Jackson and Rayleen Jackson, John Jackson, in the course and scope of his authority with ASSE and MyEducation, and the course and scope of his employment with ASSE, began to engage in a pattern of increasingly inappropriate and sexually suggestive behavior towards Plaintiff, including, but not limited to:

Touching, without Plaintiff's consent, with his hand, her buttocks, in excess of 30 times;

Touching Plaintiff's inner thighs and buttocks over her clothing, and assuring Plaintiff that such behavior was "normal and how Americans behaved";

Frequently exposing his penis to Plaintiff by causing it to fall out of his pajama pants, then looking down at this penis and then looking directly at Plaintiff and smiling;

Sending suggestive text messages to Plaintiff such as a photograph of himself accompanied by the caption, "who's this hot guy"; and

Making lewd statements to Plaintiff such as, "I can fuck like a 16 year old, though."

17. On or about October 21, 2015, John Jackson's sexually predatory behavior culminated in the heinous act of John Jackson sending Plaintiff, a minor, an unsolicited and highly disturbing photograph of his penis, via text message.

18. Plaintiff is informed and believes and herein alleges that following John Jackson's exhibitionist display, John Jackson attempted to use his position of trust and authority over Plaintiff to compel Plaintiff to keep quiet about the incident, even going so far as offering to pay Plaintiff in exchange for her silence.

FIRST CAUSE OF ACTION

Negligence Against All Defendants and DOES 1 to 100

19. Plaintiff re-alleges the facts, averments and allegations contained in paragraphs 1 through 18 as though fully set forth herein.

20. At all times mentioned herein, and otherwise, John Jackson, Rayleen Jackson, MyEducation, ASSE, and DOES 1 through 100, and each of them, owed, among other duties, duties to take reasonable steps to ensure the safety and well-being of Plaintiff, a minor under their care, and prevent her from being exposed to harm, such as the aforementioned sexual predation by John Jackson.

21. Additionally, Defendants voluntarily assumed a heightened duty of care with respect to Plaintiff. By virtue of their actions, Defendants generally, and John Jackson and Rayleen Jackson, specifically, placed themselves into the legal roles of in loco parentis, thereby assuming the same or similar legal duties of care toward Plaintiff as that of Plaintiff's parent(s). These duties included but are not limited to providing a safe living environment and refraining from engaging in sexual conduct directed at or involving Plaintiff.

22. John Jackson, Rayleen Jackson, MyEducation, ASSE, and DOES 1 through 100, breached their duty of care by failing to take reasonable steps to ensure the safety of Plaintiff and prevent her from being exposed to harm, including the harm caused by John Jackson's criminal sexual actions toward Plaintiff. These breaches included, but are not limited to, failing to ensure that Plaintiff was placed in a home which reflects the high quality expected of the International Student Exchange Agency Program, as required by Cal. Code Regs., title 11, Section 362.

23. In particular, Defendant Rayleen Jackson, as the wife of Defendant John Jackson, and a fellow resident in the home, knew or should have known about Defendant John Jackson's predatory actions toward Plaintiff, and as such, Defendant Rayleen Jackson owed a duty of care to Plaintiff to prevent or stop such actions, which Defendant Rayleen Jackson breached through her omissions and failure to act.

24. As a direct and proximate result of the foregoing acts and omissions, Plaintiff became the victim of John Jackson's heinous sexual actions and suffered severe emotional and psychological injuries.

25. As a legal, direct and proximate result of the aforementioned conduct of Defendants, and each of them, Plaintiff has sustained and will continue to sustain resulting damages. Said damages combine to a sum in excess of the jurisdictional minimum of this Court, which will be stated according to proof, pursuant to California Code of Civil Procedure, section 425.10.

SECOND CAUSE OF ACTION

Intentional Infliction of Emotional Distress against John Jackson

26. Plaintiff hereby re-alleges and incorporates by reference each and every allegation herein above as if fully set forth in detail therein.

27. Plaintiff is informed and believes and herein alleges that shortly after Plaintiff began living with John Jackson and Rayleen Jackson, John Jackson began to engage in a pattern of increasingly inappropriate and sexually suggestive behavior.

28. Plaintiff informed and believes and herein alleges that even after Plaintiff told John Jackson that the level and manner of his physical contact with Plaintiff made her uncomfortable, John Jackson's inappropriate physical contact and sexually suggestive comments, including those made via test message, continued and intensified.

29. Plaintiff further alleges, on information and belief, that Defendant, John Jackson did touch an intimate part of Plaintiff, against her will, and for the specific purpose of sexual arousal, sexual gratification, or sexual abuse, in violation of California Penal Code section 243.4(e)(1).

30. Plaintiff alleges that during the relevant time period where Plaintiff was residing with Defendants John Jackson and Rayleen Jackson, Defendant John Jackson engaged in a pattern of heinous and outrageous conduct toward Plaintiff, including but not limited to:

Using soccer practice as a pretext to wipe grass off of Plaintiff's buttocks with his hand, in excess of 30 times;

Touching Plaintiff's inner thighs and buttocks over her clothing, and assuring Plaintiff that such behavior was normal and how Americans behaved;

Frequently exposing his penis to Plaintiff by causing it to fall out of his pajama pants, then looking down at his penis and then looking directly at Plaintiff;

Sending suggestive text messages to Plaintiff such as a photograph of himself accompanied by the caption, "who's this hot guy"; and

Making lewd statements to Plaintiff such as, "I can fuck like a 16 year old, though."

31. On information and belief, Plaintiff alleges that on or about October 21, 2015, John Jackson's sexually predatory behavior culminated in the heinous act of John Jackson sending Plaintiff, a minor, an unsolicited and highly disturbing photograph of his penis, via text message.

32. The aforementioned conduct of Defendant, John Jackson, including the transmission of an unsolicited and highly disturbing photograph of his penis, via text message, to Plaintiff, a minor, was outrageous.

33. Plaintiff is informed and believes, and thereon alleges that, John Jackson acted with reckless disregard of the probability that Plaintiff would suffer emotional distress, knowing that, Plaintiff, a minor, would receive the illicit photographs of his penis by virtue of his transmission of the photograph via text message.

34. As a legal, direct and proximate result of the aforementioned conduct of John Jackson, Plaintiff has suffered, and will continue to suffer, emotional distress, including but not limited to suffering, anguish, fright, horror, nervousness, grief, anxiety, worry, shock, humiliation, and shame.

35. The aforementioned conduct of Defendant John Jackson, was a substantial factor in causing Plaintiff's severe emotional distress.

36. As alleged herein, the acts and/or omissions of Defendant John Jackson, constituted malice, oppression, and/or a willful and conscious disregard of the rights and safety of Plaintiff, pursuant to California Civil Code section 3294 thus entitled Plaintiff to punitive damages.

THIRD CAUSE OF ACTION

Negligent Infliction of Emotional Distress Against All Defendants and DOES 1 through 100

37. Plaintiff hereby re-alleges and incorporates by reference each and every allegation herein above as if fully set forth in detail therein.

38. Plaintiff is informed and believes, and thereon alleges that, Defendants, and each of them, voluntarily assumed a heightened duty of care with respect to Plaintiff when they enrolled, transported, cared for, or otherwise facilitated Plaintiff's participation in an exchange student program. By virtue of their actions, Defendants generally, and John Jackson and Rayleen Jackson, specifically, placed themselves into the legal roles of in loco parentis, thereby assuming the same or similar legal duties of care toward Plaintiff as that of Plaintiff's parent(s).

39. Accordingly, by virtue of the aforementioned actions on the part of Defendants, and each of them, Defendants have breached duties arising out of the preexisting relationship, including, among other duties, duties to take reasonable steps to ensure the safety and well-being of Plaintiff, a minor under their care, and prevent her from being exposed to harm, such as the aforementioned sexual predation by John Jackson.

40. In particular, Defendant Rayleen Jackson, as the wife of Defendant John Jackson, and a fellow resident in the home, knew or should have known about Defendant John Jackson's predatory actions toward Plaintiff, and as such, Defendant Rayleen Jackson owed a duty of care to Plaintiff to prevent or stop such actions, which Defendant Rayleen Jackson breached through her omissions and failure to act.

41. As a legal, direct and proximate result of the aforementioned conduct of Defendants, and each of them, Plaintiff has suffered, and will continue to suffer, emotional distress, including but not limited to suffering, anguish, fright, horror, nervousness, grief, anxiety, worry, shock, humiliation, and shame.

42. The aforementioned conduct of Defendants, and each of them, was a substantial factor in causing Plaintiff's severe emotional distress.

FOURTH CAUSE OF ACTION

Negligent Hiring, Retention, and Supervision against MyEducation, ASSE International and DOES 1 through 100

43. Plaintiff hereby re-alleges and incorporates by reference each and every allegation herein above as if fully set forth in detail therein.

44. MyEducation, ASSE, and DOES 1 through 100, and each of them, owed, among other duties, duties to exercise reasonable care and diligence in the hiring, retention and supervision of competent, properly trained personnel to work as Area Coordinators and host families. As alleged herein MyEducation, ASSE, and DOES 1 through 100, and each of them, owed duties to Plaintiff to take reasonable steps to ensure the safety of Plaintiff and prevent her from being exposed to harm, including the harm caused by John Jackson's criminal sexual actions toward Plaintiff. These breaches included, but are not limited to, failing to provide properly trained and vetted Area Coordinators and host families to students in their care, including Plaintiff.

45. Plaintiff is informed and believes and herein alleges that MyEducation, ASSE, and DOES 1 through 100, and each of them, breached their duty owed to Plaintiff, to exercise reasonable care and diligence in the hiring, retention and supervision of competent, properly trained personnel to work as Area Coordinators and host families. For example, and without limitation, Plaintiff is informed and believes and based thereon alleges that MyEducation, ASSE and DOES 1 through 100, and each of them, failed to compile the requisite background information on John Jackson, the Area Coordinator and host parent with whom Plaintiff was placed. On information and belief, had said Defendants performed a background check on John Jackson, Defendants would have discovered that John Jackson was convicted of the felony crime of embezzlement on or about October 27, 2011, and as such was unfit to perform the duties of Area Coordinator and/or host parent.

46. Plaintiff is informed and believes and based thereon alleges that MyEducation, ASSE, and DOES 1 through 100, and each of them, screened, hired, employed, retained, supervised and otherwise controlled various Area Coordinators and host families, including but not limited to on the date of the subject incident, and that all such Defendants knew or should have known that such Area Coordinators and host families were unfit and/or incompetent to perform their duties, and this unfitness and/or incompetence created a particular risk of harm to students in their care, including Plaintiff.

47. As a direct and proximate result of the foregoing acts and omissions, in breach of the duties of MyEducation, ASSE, and DOES 1 through 100, and each of them, to hire, retain and supervise properly trained personnel to act as Area Coordinators and/or host families, Plaintiff was harmed and suffered severe emotional and psychological injuries.

48. As a legal, direct and proximate result of the aforementioned conduct of Defendants, and each of them, Plaintiff has sustained and will continue to sustain resulting damages. Said damages combine to a sum in excess of the jurisdictional minimum of this Court, which will be stated according to proof, pursuant to California Code of Civil Procedure, section 425.10.

FIFTH CAUSE OF ACTION

Negligence against MyEducation

49. Plaintiff hereby re-alleges and incorporates by reference each and every allegation herein above as if fully set forth in detail therein.

50. At all times mentioned herein, and otherwise, MyEducation owed, among other duties, duties to take reasonable steps to ensure the safety and well-being of Plaintiff, a minor under their care, and prevent her from being exposed to harm, such as the aforementioned sexual predation by John Jackson.

51. Plaintiff is informed and believes and herein alleges that MyEducation breached their duty owed to Plaintiff, to exercise reasonable care and diligence in the screening, hiring, employing, retaining, supervising and/or otherwise engaging or contracting with ASSE in connection with the selection of host families for exchange students, including those host families such as Defendants John Jackson and Rayleen Jackson. For example, and without limitation, Plaintiff is informed and believes and based thereon alleges that MyEducation, failed to perform basic background research on ASSE an/or the ASSE host parents with whom Plaintiff was placed.

52. On information and belief, had MyEducation performed a reasonable inquiry into ASSE, Defendant MyEducation would have discovered, and thus been on notice, that ASSE has been accused of, and sued in connection with, prior incidents wherein a male member of an ASSE host family engaged in an improper sexual relationship with a female foreign exchange student.

53. Moreover, on information and belief, had M yEducation performed a reasonable inquiry into ASSE, Defendant MyEducation would have discovered, and thus been on notice, that ASSE has been accused of, and sued in connection with, violations of Federal regulations in connection with the allegedly inadequate training of ASSE's employees.

54. Plaintiff is informed and believes and based thereon alleges that MyEducation screened, hired, employed, retained, supervised and otherwise engaged or contracted with ASSE in connection with selecting and providing host families for exchange students, including but not limited to on the date of the subject incident, and Defendant MyEducation knew or should have known that ASSE and ASSE's host families were unfit and/or incompetent to perform their duties, and this unfitness and/or incompetence created a particular risk of harm to students in their care, including Plaintiff.

55. As a direct and proximate result of the foregoing acts and omissions, in breach of the duties of MyEducation to exercise reasonable care in the screening, hiring, employing, retaining, supervising and/or otherwise engaging or contracting with ASSE in connection with the selection of host families for exchange students, Plaintiff was harmed and suffered severe emotional and psychological injuries.

56. As a legal, direct and proximate result of the aforementioned conduct of Defendant, MyEducation, Plaintiff has sustained and will continue to sustain resulting damages. Said damages combine to a sum in excess of the jurisdictional minimum of this Court, which will be stated according to proof, pursuant to California Code of Civil Procedure, section 425.10.

PRAYER

WHEREFORE, Plaintiff, Millie Abilgaard Soerensen, a Minor by and through her guardian, Lone Abildgaard, prays for judgment against Defendants, and each of them, as follows:

1. For general damages to be proven at trial;

2. For special damages to be proven at trial;

3. For punitive damages, as to the Second Cause of Action, Intentional Infliction of Emotional Distress against John Jackson, only;

4. For costs of suit incurred herein, according to proof; and,

5. For such other and further relief as this Court may deem just and proper.

DATED: May _____, 2017 SCHUMANN | ROSENBERG

By: _______________________________________

Kim Schumann, Esq.

Eric Arevalo, Esq.

Attorneys for MILLIE ABILGAARD

SOERENSEN, a Minor by and through

her guardian, LONE ABILDGAARD

+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

On March 6, 2017, 47-year-old Thomas Cousino was indicted on three counts of rape, one count of sexual battery, and one count of gross sexual imposition. These charges arose from Cousino's sexual abuse of 17-year-old foreign exchange student, Y.D., whom he and his wife hosted from Ukraine. Y.D., was an ASSE International, Inc., exchange student.

IN THE COURT OF APPEALS OF OHIO

SIXTH APPELLATE DISTRICT

SANDUSKY COUNTY

State of Ohio Court of Appeals No. S-17-033

Appellee Trial Court No. 17 CR. 157

Thomas A. Cousino DECISION AND JUDGMENT

Appellant Decided: June 29, 2018

* * * * *

Timothy Braun, Sandusky County Prosecuting Attorney, and

Mark E. Mulligan, Assistant Prosecuting Attorney, for appellee.

Jon M. Ickes, for appellant.

* * * * *

MAYLE, P.J.

{¶ 1} Defendant-appellant, Thomas A. Cousino, appeals the August 28, 2017

judgment of the Sandusky County Court of Common Pleas, convicting him of numerous

sexual offenses and sentencing him to an aggregate prison term of 13 years. For the

reasons that follow, we reverse the trial court judgment. 2.

I. Background

{¶ 2} On March 6, 2017, 47-year-old Thomas Cousino was indicted on three counts of

rape, violations of R.C. 2907.02(A)(1)(a); one count of sexual battery, a violation of R.C.

2907.03(A)(5); and one count of gross sexual imposition, a violation of R.C. 2907.05(A)(1).

These charges arose from Cousino’s sexual abuse of 17-year-old foreign exchange

student, Y.D., whom he and his wife hosted from Ukraine. While Y.D.’s allegations of sexual

abuse were being investigated, Cousino was found to be in possession of a number of

pornographic videos and images of children, leading to his indictment on 20 counts of

pandering sexually-oriented material involving a minor, violations of R.C. 2907.322(A)(1).

{¶ 3} On July 14, 2017, Cousino entered a plea of guilty to sexual battery (Count 4),

gross sexual imposition (Count 5), and two counts of pandering sexually oriented material

involving a minor (Counts 6 and 7). On August 22, 2017, the trial court sentenced him to

60 months in prison and a fine of $1,500 on Count 4; 18 months in prison and a fine of

$1,000 on Count 5; eight years in prison and a fine of $1,500 on Count 6; and eight years

in prison and a fine of $1,500 on Count 7. The court ordered that the sentences imposed

for Counts 4 and 5 be served concurrently to each other, that the sentences imposed for

Counts 6 and 7 be served concurrently to each other, and that the sentences imposed for

Counts 4 and 5 be served consecutively to the sentences imposed for Counts 6 and 7. This

resulted in an aggregate prison term of 13 years. This sentence was memorialized in a

judgment entry journalized on August 28, 2017.

{¶ 4} Cousino appealed and assigns a single error for our review: The trial court failed

to make the requisite findings under Ohio Revised Code Section 2929.14(C)(4) justifying

the imposition of consecutive sentences on the Appellant.

II. Law and Analysis

{¶ 5} Cousino challenges the trial court’s decision to impose consecutive sentences. He

argues that the court failed to make the findings required by R.C. 2929.14(C)(4) to justify

the imposition of consecutive sentences.

{¶ 6} R.C. 2929.14(C)(4) provides as follows:

If multiple prison terms are imposed on an offender for convictions of multiple

offenses, the 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:

________________________________

1 Although not acknowledged by either Cousino or the state, Cousino failed to raise this objection in the trial court. He has, therefore, waived all but plain error. See State v. Ross, 2017-Ohio-675, 85 N.E.3d 398, ¶ 29 (6th Dist.). Ohio courts have recognized, however, that “when the record demonstrates that the trial court failed to make the findings required by R.C. 2929.14(C)(4) before imposing consecutive sentences on multiple offenses, appellant’s

sentence is contrary to law and constitutes plain error.” (Internal quotations and citations

omitted.) State v. Adams, 10th Dist. Franklin No. 13AP-783, 2014-Ohio-1809, ¶ 7. 4.

(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.

sentences are necessary to protect the public from future crime by the offender.

{¶ 7} The Ohio Supreme Court recently reiterated that this statute requires the trial

court to make three statutory findings before imposing consecutive sentences. State v.

Beasley, Slip Opinion No. 2018-Ohio-493, ¶ 252; State v. Bonnell, 140 Ohio St.3d 209,

2014-Ohio-3177, 16 N.E.3d 659, ¶ 26. It must find (1) that consecutive sentences are

necessary to protect the public or to punish the offender; (2) that consecutive sentences

are not disproportionate to the seriousness of the offender’s conduct and to the danger

that the offender poses to the public; and (3) that R.C. 2929.14(C)(4)(a), (b), or (c) is

applicable. Beasley at ¶ 252. “[T]he trial court must make the requisite findings both at

the sentencing hearing and in the sentencing entry.” (Emphasis in original.) Id. at ¶ 253, 5.

citing Bonnell at ¶ 37. While “a word-for-word recitation of the language of the statute is

not required,” a reviewing court must be able to discern that the trial court engaged in the

correct analysis and the record must contain evidence to support the trial court’s findings.

Bonnell at ¶ 29.

{¶ 8} At the sentencing hearing, the trial court explained its reasons for imposing

consecutive sentences:

I’m going to impose the maximum sentence, and in line with the

principles of sentencing, I am going to make that consecutive to the eight years that the

Court imposed for the charge of pandering involving a juvenile. The Court does find that

it’s necessary. It’s not disproportionate. It’s necessary to protect the public. It is necessary

to send a message that this will not be tolerated, not just in this County, but in this

country. The offenses were so different, even though they were, perhaps, committed at or

about the same time, that the Court feels that it would de – demean the conviction for

sexual battery to run at the same time as a conviction for pandering sexually oriented

material involving this. The Court just feels that it does not have a choice but to make the

sentences consecutive and maximum.

{¶ 9} Its August 28, 2017 sentencing entry includes the following explanation for its

decision to impose consecutive sentences:

The Court finds in order to adequately punish the defendant and to protect the

public and after considering the harm caused by the commission of the offenses in

COUNTS 4 & 5 was so great that no single prison term for any of the offenses committed

adequately reflects the seriousness of the defendant’s conduct that the sentences

imposed in COUNTS 4 & 5 shall be served CONSECUTIVELY to the sentences imposed in

COUNTS 6 & 7 for an AGGREGATE TERMS of 13 YEARS. (Emphasis in original.)

{¶ 10} We review felony sentences under R.C. 2953.08(G)(2). State v. Goings, 6th Dist.

Lucas No. L-13-1103, 2014-Ohio-2322, ¶ 20. We may increase, modify, or vacate and

remand a judgment only if we clearly and convincingly find that: (1) “the record does not

support the sentencing court’s findings under division * * * (C)(4) of section 2929.14, * * *

” or (2) “the sentence is otherwise contrary to law.” Id., citing R.C. 2953.08(G)(2). The

imposition of consecutive sentences without the requisite findings renders the sentence

contrary to law. See Bonnell at ¶ 37; State v. Kubat, 6th Dist. Sandusky No. S-13-046, 2015-

Ohio-4062, ¶ 35. We, therefore, review the record to ensure that the trial court considered

each factor under R.C. 2929.14(C)(4) before sentencing Cousino to consecutive prison terms.

{¶ 11} As to the first statutory factor—that consecutive sentences are necessary to

protect the public or to punish the offender—the trial court found at the sentencing

hearing that consecutive sentences were “necessary to protect the public.” This was also 7.

included in its sentencing entry. We find that the first factor was properly considered by the trial court.

{¶ 12} As to the second statutory factor—that consecutive sentences are not

disproportionate to the seriousness of the offender’s conduct and to the danger that the

offender poses to the public—the trial court found at the sentencing hearing that the

sentences were “not disproportionate.” To satisfy R.C. 2929.14(C)(4), the consecutive

sentences must not be disproportionate “to the seriousness of the offender’s conduct and

to the danger the offender poses to the public.” It is not clear from the record that these

were the factors weighed by the trial court. Moreover, this finding is not reflected in the

sentencing entry. We cannot say, therefore, that the trial court properly considered the

second R.C. 2929.14(C)(4) factor.

{¶ 13} And as to the third statutory factor—a finding that either R.C. 2929.14(C)(4)(a),

(b), or (c) is applicable—it appears that the trial court found (b) to apply, however, the court

never explicitly cited this provision of the statute. Under (b), the court must find, first, that

at least two of the multiple offenses were committed as part of one or more courses of

conduct, and, second, that the harm caused was so great or unusual that no single prison

term adequately reflects the seriousness of the offender’s conduct. The trial court found

at the hearing that “[t]he offenses were so different, even though they were, perhaps,

committed at or about the same time.” We cannot say that this constituted a finding that

“at least two of the multiple offenses were committed as part of one or more courses of

conduct.” What’s more, this finding is not incorporated 8. into the court’s sentencing entry.

As to the second finding required under (b)—that the harm caused was so great or

unusual that no single prison term adequately reflects the seriousness of the offender’s

conduct—the court made this finding in its sentencing entry, but did not do so at the

sentencing hearing. We cannot say, therefore, that the third R.C. 2929.14(C)(4) factor was properly considered.

{¶ 14} “[A] trial court’s inadvertent failure to incorporate the statutory findings in the

sentencing entry after properly making those findings at the sentencing hearing does not

render the sentence contrary to law; rather, such a clerical mistake may be corrected by

the court through a nunc pro tunc entry to reflect what actually occurred in open court.”

Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, at ¶ 30. In other words, if

the appropriate findings were made at the sentencing hearing but were not incorporated

into the sentencing entry, we could remand this matter for a nunc pro tunc entry to rectify

the mistake.

{¶ 15} Here, however, there were some findings made at the sentencing hearing that

were not incorporated into the judgment entry, but there were also findings that were not

made at all at the sentencing hearing. These errors cannot be corrected by a nunc pro

tunc entry. Rather, we must reverse the trial court judgment and remand for a new

sentencing hearing. See Kubat, 6th Dist. Sandusky No. S-13-046, 2015-Ohio-4062, at ¶ 38

quoting State v. Corker, 10th Dist. Franklin Nos. 13AP-264, 13AP- 265 and 13AP266, 2013-

Ohio-5446, ¶ 38 (“‘[W]hen the trial court fails to articulate the appropriate findings

required by R.C. 2929.14(C)(4), the case is to be remanded for the trial judge to 9. consider

whether consecutive sentences are appropriate under [R.C. 2929.14(C)(4)] and, if so, to

enter the proper findings on the record.’”).

{¶ 16} Accordingly, we find Cousino’s sole assignment of error well-taken.

III Conclusion

{¶ 17} We find Cousino’s sole assignment of error well-taken. The trial court

failed to properly consider the second and third factors required under R.C. 2929.14(C)(4)

before imposing consecutive sentences. We, therefore, reverse the August 28, 2017

judgment of the Sandusky County Court of Common Pleas and remand for resentencing.

Appellee is ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgment reversed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.