State v. Peyatt

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[Cite as State v. Peyatt, 2019-Ohio-3585.] IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT MONROE COUNTY STATE OF OHIO, Plaintiff-Appellee, v. WILLIAM D. PEYATT, Defendant-Appellant. OPINION AND JUDGMENT ENTRY Case No. 18 MO 0006 Criminal Appeal from the Court of Common Pleas of Monroe County, Ohio Case No. 2017-186 BEFORE: Carol Ann Robb, Gene Donofrio, David A. D’Apolito, Judges. JUDGMENT: Affirmed in part; Reversed and Vacated in part. Atty. James L. Peters, Monroe County Prosecutor, Atty. Helen Yonak, Assistant Prosecutor, 101 N. Main Street, Room 15, Woodsfield, Ohio 43793 for PlaintiffAppellee and Atty. Timothy Young, Ohio Public Defender, Atty. Christina Madriguera, Assistant Public Defender, Atty. Jonathan Tewart, Assistant State Public Defender, Atty. Joseph –2– Medici, Chief Counsel, Legal Division, 250 East Broad Street, Suite 1400, Columbus, Ohio 43215, for Defendant-Appellant . Dated: August 28, 2019 Robb, J. {¶1} Appellant William Peyatt appeals from his convictions entered in Monroe County Common Pleas Court for gross sexual imposition, attempted gross sexual imposition, and disseminating matter harmful to juveniles. Three issues are raised in this appeal. First, Appellant contends there was not sufficient evidence for the attempted gross sexual imposition conviction. Second, Appellant contends the imposition of consecutive prison terms is not clearly and convincingly supported by the record. Third, Appellant asserts he was deprived of a fair trial when the trial court failed to give a curative instruction; during voir dire jurors saw him in the hallway of the courthouse in shackles. For the reasons expressed below, the convictions for gross sexual imposition and disseminating matter harmful to juveniles are affirmed. The conviction for attempted gross sexual imposition is reversed and vacated. Statement of the Facts and Case {¶2} Appellant was indicted for eight sex crimes in June 2017. The two victims in this case are K.B. and A.B. The first four counts of the indictment were for gross sexual imposition a violation of R.C. 2907.05(A)(4), third-degree felonies. K.B. was the alleged victim of two counts and A.B. was the alleged victim of the other two counts. He was also indicted for one count of attempted gross sexual imposition in violation of R.C. 2907.05(A)(4) and R.C. 2923.02, a fourth degree felony and one count of disseminating matter harmful to a juvenile in violation of R.C. 2907.31(A)(1), a fifth-degree felony. A.B. was the alleged victim of attempted gross sexual imposition; both were the alleged victims of the dissemination charge. The seventh and eighth counts of the indictment were for rape in violation of R.C. 2907.029(A)(2), a first-degree felony and unlawful sexual conduct with a minor in violation of R.C. 2907.04, a fourth-degree felony. The victim of those crimes was allegedly K.B. 6/15/17 Indictment. {¶3} Appellant entered a not guilty plea and following pretrial motions and discovery, the case proceeded to a jury trial. Case No. 18 MO 0006 –3– {¶4} At trial, A.B. testified Appellant touched her private areas (breasts and vaginal area) over top of her clothes when she was 12 years old. Tr. 344-346. She stated this happened on more than one occasion; she described two distinct instances. Tr. 344, 345-347. She also testified that on one occasion while they were working on a derby car, Appellant told her to look and when she looked he exposed his penis. Tr. 348-351. Regarding these incidents, Appellant told her to be quiet about it and if she ever told anyone she would be in trouble. Tr. 348, 353. She also testified that he showed her pictures of his penis on his phone. Tr. 353. {¶5} K.B. testified Appellant first began by touching her private areas (breasts and vaginal area) over her clothes when she was 10, 11, or 12. Tr. 373. She stated it happened on more than one instance and progressed to under the clothes and then to rape. Tr. 373-381. She also testified Appellant showed her pictures of his penis on his phone. Tr. 390. {¶6} Testimony was also heard from Sexual Assault Nurse Examiner (SANE) Leslie Doerfler, RN, who talked to both children at Belmont Community Hospital and Robert Scott Steele, a Harmony House interviewer (Harmony House is a child advocacy center). {¶7} The Jury found Appellant guilty of the four counts of gross sexual imposition, one count of attempted gross sexual imposition, and one count of disseminating matter harmful to juveniles. Appellant was found not guilty of the rape and unlawful sexual conduct with minor charges. 3/22/18 J.E.; 3/22/18 Jury Verdicts. {¶8} Appellant was sentenced to an aggregate sentence of 270 months. 3/27/18 J.E.; Tr. 614. He received 60 months for each gross sexual imposition conviction, 18 months for the attempted gross sexual imposition, and 12 months for disseminating harmful materials to juveniles. 3/27/18 J.E.; Tr. 612-613. The sentences were ordered to be served consecutive. 3/27/18 J.E.; Tr. 612. {¶9} Appellant timely appealed the convictions. First Assignment of Error “There is insufficient evidence to support Mr. Peyatt’s conviction and eighteenmonth sentence for attempted gross sexual imposition in violation of R.C. 2923.02 [2907.05(A)(4)], a felony of the fourth degree.” Case No. 18 MO 0006 –4– {¶10} Appellant asserts there was insufficient evidence for the attempted gross sexual imposition conviction. {¶11} As stated above, A.B. is the alleged victim of the attempted gross sexual imposition charge. She testified to two specific incidents of gross sexual imposition. She also testified Appellant told her to look and then he exposed his penis. It is this exposure that is alleged to be the attempted gross sexual imposition. It is undisputed that Appellant did not tell A.B. to touch his penis or force her to touch his penis. {¶12} Appellant contends this exposure is not sufficient to amount to attempted gross sexual imposition. He does not attack any other conviction on the grounds of sufficiency. {¶13} The state argues the evidence is sufficient to amount to gross sexual imposition. It contends when all of A.B.’s testimony is considered and viewed in the light most favorable to the prosecution, there is sufficient evidence of attempted gross sexual imposition. This is because there were two prior acts of sexual contact and the jury could infer that the act of telling her to look at his penis was a substantial step towards having sexual contact with her. The state’s argument is a grooming argument. {¶14} Sufficiency of the evidence is the legal standard applied to determine whether the case may go to the jury or whether the evidence is legally sufficient as a matter of law to support the verdict. State v. Smith, 80 Ohio St.3d 89, 113, 684 N.E.2d 668 (1997). In determining whether the evidence is legally sufficient to support a conviction, “‘[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.’” State v. Robinson, 124 Ohio St.3d 76, 2009-Ohio-5937, 919 N.E.2d 190, ¶ 34, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. A verdict will not be disturbed unless, after viewing the evidence in a light most favorable to the prosecution, it is apparent that reasonable minds could not reach the conclusion reached by the trier of fact. State v. Treesh, 90 Ohio St.3d 460, 484, 739 N.E.2d 749 (2001). In a sufficiency of the evidence inquiry, appellate courts do not assess whether the prosecution's evidence is to be believed but whether, if believed, the evidence supports the conviction. State v. Case No. 18 MO 0006 –5– Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 79-80 (evaluation of witness credibility not proper on review for sufficiency of evidence). {¶15} Gross sexual imposition is defined as no person shall have sexual contact with another who is not their spouse when the other person is less than 13 years of age. R.C. 2907.05(A)(4). “Sexual contact” means touching an erogenous zone of another for the purpose of sexually arousing or gratifying either person. R.C. 2907.01(B). Attempt is defined as “No person, purposely or knowingly, and when purpose or knowledge is sufficient culpability for the commission of an offense, shall engage in conduct that, if successful, would constitute or result in the offense.” R.C. 2923.02(A). {¶16} The issue in this case is whether the act of saying look and exposing his penis is sufficient evidence of attempted gross sexual imposition. Case law for attempt of a sex crime usually concerns attempted rape. The Ohio Supreme Court has explained for attempt to have occurred there must be a substantial step toward engaging in the sexual conduct. State v. Davis, 76 Ohio St.3d 107, 114, 666 N.E.2d 1099 (1996). The Davis court noted that for purposes of attempted rape there must be purpose to commit rape, i.e., sexual conduct, as opposed to some other sex offense such as gross sexual imposition, which requires contact, not conduct. Id. The Ninth Appellate District, however, has explained, “The act required need not constitute the last possible event short of completing the crime.” State v. Hartsook, 9th Dist. Summit No. 14769, 1991 WL 35137 (Mar. 6, 1991), citing State v. Farmer, 156 Ohio St. 214, 216, 102 N.E.2d 11 (1951) and State v. Brooks, 44 Ohio St.3d 185, 190, 542 N.E.2d 636 (1989). {¶17} It has been found that removing a victim’s clothing alone is insufficient evidence of attempted rape. Davis at 114. However, if the defendant expresses a desire to have sex with the victim and attempts to remove the victim’s pants during a struggle, that is sufficient evidence of attempted rape. State v. Lucas, 5th Dist. Tuscarawas No. 2005AP090063, 2006-Ohio-1675, ¶ 23-25. Or, if the defendant is found standing over the victim with his pants partially removed and he is attempting to remove the victim’s pants that is sufficient evidence of attempted rape. State v. Brown, 8th Dist. Cuyahoga No. 98540, 2013-Ohio-1982, ¶ 21. But it has also been found that grabbing the victim by the back of the neck, holding a knife to her throat, and ordering her to remove her clothing Case No. 18 MO 0006 –6– is not sufficient to demonstrate attempted rape. State v. Jones, 8th Dist. Cuyahoga No. 82978, 2004-Ohio-512, ¶ 20-22. {¶18} Furthermore, the circumstances surrounding the event needs to be considered. State v. Allgood, 9th Dist. Lorain No. 17CA011224, 2019-Ohio-738, ¶ 11 (child of tender age and adult with pants down with his penis in one hand and other hand on the back of the child’s shoulders/neck). For instance, ordering a child of tender years to take off their clothes corroborates purpose to engage in sexual conduct, i.e., attempted rape. State v. Powell, 49 Ohio St.3d 255, 261, 552 N.E.2d 191 (1990), superseded by constitutional amendment. {¶19} The testimony regarding this event is that Appellant said look and then exposed his penis. There is no indication he made any further advances such as moving it towards her, trying to make her touch it, or asking her to touch it. {¶20} The state argued the prior touching and this exposure was Appellant grooming the victim for further sexual encounters and thus, the exposure constitutes an attempted gross sexual imposition. {¶21} Admittedly, it is not normal behavior for a 31 year old male to purposely expose his penis to a 12 year old child. However, even when considering the evidence in the light most favorable to the prosecution, merely exposing oneself and saying “look” is insufficient evidence for the crime of attempted gross sexual imposition. That type of exposure is not a substantial step to having sexual contact with the person. Even when the other two incidents of gross sexual imposition are taken into consideration, the act committed is not sufficient to qualify as attempted gross sexual imposition. {¶22} Consequently, there was insufficient evidence for the conviction of attempted gross sexual imposition. This assignment of error has merit. Second Assignment of Error “The trial court erred when it sentenced Mr. Peyatt to consecutive prison terms because the record clearly and convincingly does not support the finding that consecutive sentences are not disproportionate to Mr. Peyatt’s conduct in this case.” {¶23} Under this assignment of error, Appellant does not dispute the trial court made the mandated consecutive sentence findings when it imposed consecutive sentences. Rather, he asserts the trial court erred when it concluded that the imposition Case No. 18 MO 0006 –7– of consecutive sentences was not disproportionate to the conduct; he contends a 22 1/2 year sentence is disproportionate to the conduct committed. He cites this court to our previous decisions where we have upheld two, three, four and five year consecutive sentences for gross sexual imposition. He essentially asserts that the acts he was found guilty of committing are not worse than any other gross sexual imposition and do not warrant an aggregate 22 1/2 year sentence. {¶24} The state counters arguing the sentences are within the statutory limits and this court cannot find that the sentence is clearly and convincingly contrary to law. {¶25} The standard of review in a felony sentencing appeal is dictated by R.C. 2953.08(G)(2), which states: The court hearing an appeal under division (A), (B), or (C) of this section shall review the record, including the findings underlying the sentence or modification given by the sentencing court. The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate courts' standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following: (a) That the record does not support the sentencing court's findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant; (b) That the sentence is otherwise contrary to law. {¶26} The Ohio Supreme Court has stated the plain language of R.C. 2953.08(G)(2) prohibits the application of the abuse of discretion standard when reviewing a felony sentence. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 10, 16. “An appellate court may vacate or modify a felony sentence on appeal only if it determines by clear and convincing evidence that the record does not Case No. 18 MO 0006 –8– support the trial court's findings under relevant statutes or that the sentence is otherwise contrary to law.” Id. at ¶ 1. {¶27} One of the relevant provisions is R.C. 2929.14(C)(4), which governs the imposition of consecutive sentences. A factor the trial court must find before imposing a consecutive sentence is “consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public.” R.C. 2929.14(C)(4). {¶28} Appellant is correct, we have upheld consecutive two, three, four, and five year prison terms for gross sexual imposition. State v. Rupert, 7th Dist. Belmont No. 14 BE 00018, 2016-Ohio-1056, ¶12, 51-53; State v. Power, 7th Dist. Columbiana No. 12 CO 14, 2013-Ohio-4254, ¶ 4, 45; State v. Wayne, 7th Dist. Mahoning No. 01-CA-94, 2003Ohio-927, ¶ 4, 30. In those cases, the issue was whether the trial court complied with R.C. 2929.14(C) in making the necessary consecutive sentence findings and whether the record supported the sentence imposed. Those cases do not stand for the proposition that the sentence imposed in this case is necessarily disproportionate to Appellant’s conduct. {¶29} We are required to afford deference to the trial court's broad discretion in making sentencing decisions; trial courts have great latitude and discretion in formulating the appropriate sentence. State v. Rahab, 150 Ohio St.3d 152, 2017–Ohio–1401, 80 N.E.3d 431, ¶ 10. The sentences are within the applicable range permitted by R.C. 2929.14(A). At trial, testimony established Appellant is the victims’ uncle. The conduct started with Appellant winking and making inappropriate comments to his nieces when they were between 10 and 12 years old and then escalated to inappropriate touching. K.B. testified that she had to tell her step mom about the conduct after Appellant started winking at her step-sister and making comments; K.B. was afraid Appellant would start inappropriately touching her step-sister. This evidence indicates the relationship, the young age of the victims, and the pattern. Given the trial court’s great latitude in sentencing and our standard of review, we cannot find the sentences are clearly and convincingly contrary to law. {¶30} This assignment of error is meritless. Third Assignment of Error Case No. 18 MO 0006 –9– “Mr. Peyatt was deprived of a fair trial when the trial court applied a blanket policy regarding shackling defendants while in the hallway, and for failing to give a curative instruction to the jury following Mr. Peyatt’s appearance in shackles before prospective jurors.” {¶31} It is undisputed Appellant was seen by the jurors, prior to voir dire, in shackles. This issue was discussed during the voir dire. At the start of voir dire, Appellant’s counsel moved to strike the venire because they had seen Appellant in shackles. Tr. 13. The state asked the court for a curative instruction. Tr. 16. The trial court overruled the motion to strike and indicated it would craft a curative instruction. Tr. 17. {¶32} During voir dire, the prospective jurors were asked if they saw Appellant when he came into the courtroom. Tr. 114. They indicated they did. Tr. 115. One prospective juror, who became a juror (Mr. Hupp), indicated he saw Appellant with chains on his legs and arms. Tr. 115. The following discussion then occurred: Q. All right. Mr. Hupp, how did that make you feel about him? A. I didn’t even know he was going to be the one on trial here. Q. All right. Well, when you saw him in chains, okay, where did you think he come from? A. I figured he come from jail. Q. All right. So the rest of you who saw him in chains, and I would assume you thought the same thing, that he had come from jail, right? A. (No Audible Response). Q. All right. How did that make you feel, sir? A. (Mr. Mowder): I just thought that he would be the one, but I didn’t know the situation. I didn’t know from either side what’s going on. It didn’t really bother me too bad until you know, you guys said rape and stuff, and that bothers me. I’m going to be honest. Case No. 18 MO 0006 – 10 – Q. And that’s what I want you to be. A. Yeah, but, you know, there’s always two sides to every story. Q. Okay. And we’re going to get into that here in just a little bit, okay? About there being two sides to every story. So just kind of hold on to that thought. Tr. 115-116. {¶33} Both Mr. Hupp and Mr. Mowder were seated as jurors. {¶34} During the preliminary and final instructions, the trial court gave a general instruction regarding the presumption of innocent until proven guilty beyond a reasonable doubt. Tr. 215, 559. The trial court however, did not give a specific instruction regarding Appellant’s appearance in shackles. {¶35} Appellant contends the general instruction is insufficient to cure the defect. In making this argument, Appellant acknowledges our recent decision in Creech holding that a general instruction is sufficient to remove prejudice. However, he asks this court to reconsider that ruling. He also argues the trial court’s policy of restraining all defendants while in the hallway is an abuse of discretion. {¶36} The state counters asserting the dialog during voir dire indicated prejudice was speculative at best and the general instruction was sufficient. It also asserts the trial court’s policy is not an abuse of discretion and indicates the policy conforms with the Supreme Court Advisory Committee on Court Security & Emergency Preparedness’ courtroom safety standards. {¶37} Our previous decision in Creech did address a similar situation to the one before this court now. State v. Creech, 7th Dist. Jefferson No. 13 JE 41, 2014-Ohio-4004, 18 N.E.3d 523, ¶ 42-49. In Creech, potential jurors saw the defendant in shackles in the hallway of the courthouse. Id. at ¶ 45. {¶38} In that case, we explained that a criminal defendant has the right to be free from shackles in the presence of jurors during trial absent unusual circumstances. Id. at ¶ 42, citing Deck v. Missouri, 544 U.S. 622, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005) and Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). However, “[t]he inadvertent sighting by jurors of a handcuffed accused outside of the courtroom does not Case No. 18 MO 0006 – 11 – create a per se mistrial.” Creech at ¶ 43, citing State v. Linkous, 5th Dist. Licking No. 08CA51, 2009-Ohio-1896, ¶ 67. If there is an inadvertent sighting, the accused must present evidence that the jury was tainted by the sighting, i.e., prejudice. Creech at ¶ 43. Prejudice has been deemed to be slight when the sighting is brief, inadvertent, and outside the courtroom. Id. at ¶ 44 (citations to numerous cases holding as such). {¶39} We explained in Creech that is especially the case when the viewing occurs during transportation, which is exactly what happened in Creech and in the case at hand. It is normal and a necessary practice to handcuff defendants during transportation to prevent escape and possible injury to others if an escape is attempted. Id. quoting State v. Morris, 4th Dist. Athens No. 1097, 1982 WL 3380 (Feb. 18, 1982), quoting U.S. v. Leach, 429 F.2d 956 (8th Cir.1970). Furthermore, the jury is aware of this practice. Id. {¶40} In Creech, we held that giving the general instruction on the presumption of innocence twice, once during voir dire and once during trial, rather than giving a specific curative instruction about shackles and handcuffs, was sufficient to overcome any prejudice. Creech at ¶ 46-49. Jurors are presumed to follow the trial court's instructions. Pang v. Minch, 53 Ohio St.3d 186, 559 N.E.2d 1313 (1990), paragraph four of the syllabus. Therefore, the general instruction was sufficient. {¶41} Admittedly, in Creech there was no evidence that the jurors who were seated had seen Creech in shackles. In the case at hand, it is clear two of the seated jurors had seen Appellant in shackles. However, inquiry during voir dire indicated the prejudice could be overcome by a curative instruction. The one juror specifically stated that there are “two sides to every story” indicating that he still could follow the law and the presumption of innocence until proven guilty. Tr. 115-116. Therefore, the reasoning and decision reached in Creech is applicable to the case at hand; the reasoning is sound and will not be revisited at this time. {¶42} Furthermore, it is not an abuse of discretion for a trial court to have a policy of restraining defendants while in the hallway of the courthouse or during transportation. The Creech decision and cases cited in that decision clearly indicate it is a common practice and there are safety considerations for such policy. Creech at ¶ 44. The trial court also indicated one policy reason for restraining defendants is to prevent escape; “But if they would have brought someone over here not shackled, the same thing would Case No. 18 MO 0006 – 12 – have happened as happened not too long ago. Somebody jumped the back of the railing and off they went down the alley. So that better not happen again.” Tr. 18. Likewise, as the state points out, the Ohio Court Security Standards indicate, “Prisoners should be transported into and within a court facility through areas that are not accessible to the public. When a separate entrance is not available and public hallways must be utilized, prisoners should be handcuffed behind the back or handcuffed with use of ‘belly chains’ to limit hand movement and always secured by leg restraints.” Ohio Court Security Standard 8(A). Thus, it was not an abuse of discretion for Appellant to be shackled while being transported to the courtroom. {¶43} This assignment of error lacks merit. Conclusion {¶44} For the reasons expressed above, the second and third assignments of error lack merit. The first assignment of error, however, has merit. Appellant’s convictions for gross sexual imposition and disseminating material harmful to juveniles are affirmed. The conviction for attempted gross sexual imposition is reversed and the 18 month consecutive sentence for attempted gross sexual imposition is vacated. Donofrio, J., concurs. D’Apolito, J., concurs. Case No. 18 MO 0006 [Cite as State v. Peyatt, 2019-Ohio-3585.] For the reasons stated in the Opinion rendered herein, the first assignment of error has merit; the second and third assignments of error are overruled. It is the final judgment and order of this Court that the judgment of the Court of Common Pleas of Monroe County, Ohio, is affirmed in part; reversed and vacated in part. Costs waived. A certified copy of this opinion and judgment entry shall constitute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a certified copy be sent by the clerk to the trial court to carry this judgment into execution. NOTICE TO COUNSEL This document constitutes a final judgment entry.

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