476 N.E.2d 382 | Ohio Ct. App. | 1984
Defendant-appellant, Daner Dawson, was indicted on a two-count indictment for the offenses of attempted rape and gross sexual imposition. Appellant entered a plea of guilty on the lesser included offense of gross sexual imposition to the first count of the indictment (attempted rape), and a plea of guilty to the second count of the indictment (gross sexual imposition). Appellant was thereafter referred to the probation department for a presentence investigation.
On September 13, 1983, appellant was sentenced to a term of imprisonment of three to ten years on the first count and one to five years on the second count, such terms to run consecutively. Appellant presently takes exception to this sentence, contending that he is entitled to a definite sentence, as provided by R.C.
R.C.
"Whoever is convicted of or pleads guilty to a felony of the third or fourth degree and did not, during the commission of that offense, cause physical harm to any person nor make an actual threat of physical harm to any person with a deadly weapon, as defined in section
To entitle a defendant to the provisions of R.C.
In the instant matter, the appellant herein had sexual contact with Artiella Lewis, a child of five years of age. The term "sexual contact" as defined per R.C.
While this unconsented touching undoubtedly had a tremendous psychological effect and impact on its child-victim,2 the controlling issue for this court's resolution is whether such conduct constituted "physical harm" as defined by R.C.
Appellant was therefore entitled to the definite sentencing provisions of R.C.
We accordingly remand this matter to the trial court for further proceedings consistent with this opinion.
Sentence vacated and cause remanded.
CORRIGAN, P.J., and MARKUS, J., concur.
"The court committed prejudicial error in not granting the motion of the defendant for modification of sentence and sentencing the defendant to a definite sentence."
While we appreciate the trial court's position in this matter, we are constrained to find that such an interpretation does not fall within the purview of R.C.
"`Physical harm to persons' means any injury, illness, or other physiological impairment, regardless of its gravity or duration." *445