801 N.E.2d 906 | Ohio Ct. App. | 2003
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *494
{¶ 2} On June 5, 2002, a Jefferson County Grand Jury indicted appellant on one count of sexual battery, a third degree felony in violation of R.C.
{¶ 3} Appellant filed a motion for permission to hire an expert in the area of incest and its long-term effects at the court's expense because he is indigent. Appellant asserted in the motion that his parents were first cousins and incest and sexual abuse has abounded in his family. Thus, he claimed he needed an evaluation by an incest expert to determine whether he was capable of understanding the nature of the charges against him. After a hearing, the trial court denied this motion.
{¶ 4} Appellant next filed a motion to dismiss the indictment against him arguing that R.C.
{¶ 5} Pursuant to a plea agreement, on September 25, 2002, appellant entered a plea of no contest to the charge of sexual battery. In return for appellant's plea, plaintiff-appellee, the State of Ohio, entered a nolle prosequi in another case pending against appellant. On October 9, 2002, the trial court sentenced appellant *495 to three years incarceration. Additionally, it determined appellant to be a habitual sex offender. Appellant filed his timely notice of appeal the same day.
{¶ 6} Appellant raises four assignments of error, the first of which states:
{¶ 7} "The Trial Court erred when it overruled defendant/appellant's motion to dismiss the charge of sexual battery (in violation of R.C. §
{¶ 8} "Section
{¶ 9} Appellant argues R.C.
{¶ 10} In State v. Dario (1995),
{¶ 11} "When a statute is challenged on the ground that it is unconstitutional as applied, the burden is on the attacking party to present clear and convincing evidence of a presently existing set of facts which makes the statute void and unconstitutional when applied thereto. To decide whether the statute is unconstitutional as applied, we must determine whether appellant `had a constitutionally protected right to engage in the type of activity he allegedly committed.' If appellant did not have a constitutionally protected right to engage in that activity then his argument that the statute is unconstitutional as applied must fail." (Internal citations omitted.) Id. at 240. *496
{¶ 12} At oral argument, appellant compared this case to the recent United States Supreme Court decision of Lawrence v. Texas (2003), ___ U.S. ___,
{¶ 13} The Court of Appeals for the Texas Fourteenth District denied the petitioners' constitutional arguments relying on Bowers v.Hardwick (1986),
{¶ 14} The Court found that the Texas statute furthered no legitimate state interest which could justify its intrusion into the personal and private life of the individual. Id. at 2484. The Court explained that the longstanding criminal prohibition of homosexual sodomy upon which Bowers placed considerable reliance is unfounded. Id. at 2478. It cautioned that the State and the courts should not define the meaning of a relationship or set boundaries to it, absent injury to a person or abuse of an institution the law protects. Id. Quoting Justice Stevens' dissent in Bowers, the Court stated that the fact that a governing majority has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice. Id. at 2483. And the protections of individual decisions by married persons, concerning the intimacies of their physical relationship, even when they do not intend to produce offspring, protected by the Due Process Clause extend to intimate choices made by non-married people as well. Id. The Court noted that the continuance of a law such as the Texas statute demeaned the lives of homosexuals. Id. at 2482. The Court went on to explain that the case "involve[d] two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle." Id. at 2484. It concluded that they were entitled to engage in such conduct without intervention of the government. Id.
{¶ 15} This case is distinguishable from Lawrence. First, inLawrence, the petitioners challenged the constitutionality of the Texas statute. Here appellant does not challenge the constitutionality of R.C.
{¶ 16} Second, justifications for striking down the Texas statute do not apply here. For instance, the Court advised that states and courts should generally not attempt to set up boundaries to a relationship absent injury to a person. In the case of incest, as opposed to a consensual homosexual relationship, there is injury to persons. Appellant is an example of this. Appellant claims that the incest committed by his parents and relatives affected him so severely that he needed to hire an expert on incest and its long-term effects and should have pled not guilty by reason of insanity because he could not understand the wrongfulness of his actions. Additionally, the state has a legitimate interest in preventing incest: protecting the family unit. The same cannot be said for homosexual relationships.
{¶ 17} Third, in Lawrence, it was undisputed that both participants mutually consented to the sexual act. In this case, the facts are not clear. Sheena filed a police report stating that appellant forced her to have sex with him. Appellant states that the sex was consensual. Appellant pled no contest to the charge of incest, so the case never went to trial. Accordingly, we have no factual basis on which to evaluate appellant's claim that the sex was consensual. See Columbus v. Baba, 10th Dist. No. 01AP-341, 2002-Ohio-831.
{¶ 18} In the present case, appellant did not have a constitutionally protected right to engage in incest with his daughter. Neither the United States nor the Ohio Constitutions guarantee appellant a fundamental right to engage in private acts of consensual sexual intercourse with his daughter. State v. Benson (1992),
{¶ 19} Appellant's second assignment of error states:
{¶ 20} "The trial court erred when it overruled defendant/appellant's motion for expert assistance in the area of incest and its long-term effects despite evidence that the defendant/appellant was the product of an incestuous marriage, the victim of sexual abuse at the hands of numerous family members during his childhood and had no history of inappropriate sexual conduct other than that which occurred consensually between defendant/appellant and his adult biological daughter.
{¶ 21} "The due process clause of the united states constitution and the Ohio constitution requests that a criminal defendant be provided with expert assistance, in addition to traditional expert psychiatric assistance, when it is necessary to present an adequate defense and, in defendant/appellant's case, such assistance was crucial to the presentation of defendant/appellant's mental state at the time of the offense." *498
{¶ 22} Appellant argues the trial court erred in overruling his motion for expert assistance in the area of incest and its long-term effects. Appellant contends that under the factors set out in Ake v.Oklahoma (1985),
{¶ 23} In Mason, the Ohio Supreme Court held that due process requires the trial court to provide state funds to an indigent criminal defendant in order to obtain expert assistance only where the court finds, in exercising sound discretion, that the defendant has made a particularized showing (1) of a reasonable probability that the requested expert would aid in his defense, and (2) that denial of the requested expert assistance would result in an unfair trial. Id. at 150. In so holding, the court noted:
{¶ 24} "Due process, as guaranteed by the
{¶ 25} The court further noted that the defendant had to demonstrate a reasonable probability that an expert would aid in his defense, and that denial of expert assistance would result in an unfair trial. Id., citing State v. Broom (1988),
{¶ 26} Applying the Ake factors to the present case reveals the trial court did not err in denying appellant's motion for an expert at the state's expense. First, appellant has not demonstrated how the accuracy of his trial would have been compromised without an expert. Whether or not appellant's parents are first cousins or whether he was sexually abused as a child have no bearing on whether appellee could prove beyond a reasonable doubt that appellant violated R.C.
{¶ 27} Thus, it cannot be said that the trial court abused its discretion in denying appellant's request for an expert. Consequently, appellant's second assignment of error is without merit.
{¶ 28} Appellant's third assignment of error states:
{¶ 29} "The trial court erred when it refused to permit the defendant/appellant to amend his plea of `not guilty' to `not guilty' and `not guilty by reason of insanity' once it was presented with sworn affidavits demonstrating defendant/appellant's history of profound sexual abuse and the incestuous history of his parents.
{¶ 30} "Criminal rule 11 authorizes the entry of such a plea at any time prior to trial, upon a showing of good cause, and the trial court wrongfully ignored the ample good cause put forth by the defendant/appellant when it overruled defendant/appellant's motion to amend plea despite sworn affidavits and testimony proving that the profound sexual abuse suffered by the defendant/appellant and the incestuous history of his parents raised a substantial possibility that defendant/appellant did not know the wrongfulness of his act."
{¶ 31} Appellant alleges the court abused its discretion in denying his motion to amend his plea to include not guilty by reason of insanity. He states that the court appointed his counsel immediately before his arraignment. He argues that his counsel was not able to interview him and his family members *500 until later in order to discover the incest perpetrated on him and its effects. Appellant points out that he submitted his and his sister's affidavits, which revealed a substantial possibility that as a result of the sexual abuse he suffered as a child, coupled with the fact that he is a product of an incestuous marriage of first cousins, he did not know the wrongfulness of his conduct.
{¶ 32} R.C.
{¶ 33} The court questioned appellant at the motion hearing regarding whether he knew what he was doing when he committed the offense. The following colloquy is relevant:
{¶ 34} "THE COURT: Tell me something, Mr. Freeman, you've been to prison for having sex with your daughter.
{¶ 35} "A Yes, sir.
{¶ 36} "THE COURT: Did you know it was wrong?
{¶ 37} "A At the time when I had it, no sir.
{¶ 38} "THE COURT: Well, then after you had it and you got arrested and you got prosecuted out and you worked out an agreement and you went to prison.
{¶ 39} "A Yes sir.
{¶ 40} "THE COURT: Did you know it was wrong then?
{¶ 41} "A Yes, sir.
{¶ 42} "THE COURT: Now you get out of prison.
{¶ 43} "A Sir?
{¶ 44} "THE COURT: You then got out of prison.
{¶ 45} "A Yes sir.
{¶ 46} "THE COURT: Finished serving your sentence. You came home.
{¶ 47} "A Yes, sir.
{¶ 48} "THE COURT: Now the same daughter wants to have sex with you.
{¶ 49} "A Yes, sir. *501
{¶ 50} "THE COURT: Didn't you know it was wrong?
{¶ 51} "A Yes, sir.
{¶ 52} "THE COURT: Or were you affected by the alcohol and drugs?
{¶ 53} "A I was affected by the alcohol and drugs but in a way I still felt that I knew it was wrong." (July 22, 2002 Motion Hearing Tr. 33-35).
{¶ 54} R.C.
{¶ 55} Appellant's fourth assignment of error states:
{¶ 56} "The trial court abused its discretion when it sentenced defendant/appellant to a term of three years in a state penitentiary after a plea of no contest despite the alleged victim's failure to appear at the sentencing hearing and extensive testimony regarding the non-violent, non-dangerous character of defendant/appellant.
{¶ 57} "The correct application of R.C.
{¶ 58} Appellant argues the trial court abused its discretion in sentencing him to three years in prison instead of community control. He contends that the factors in R.C.
{¶ 59} A court of appeals no longer applies an abuse of discretion standard when reviewing a felony sentence. State v. Cloud, 7th Dist. No. *502
98-CO-51, 2001-Ohio-3396. Our standard of review is governed by R.C.
{¶ 60} "(2) 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.
{¶ 61} "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 court's 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:
{¶ 62} "(a) That the record does not support the sentencing court's findings under division (B) or (D) of section
{¶ 63} "(b) That the sentence is otherwise contrary to law."
{¶ 64} Appellant was convicted of a third degree felony. The potential prison terms for a third degree felony are one, two, three, four, or five years. R.C.
{¶ 65} R.C.
{¶ 66} R.C.
{¶ 67} "(1) The physical or mental injury suffered by the victim of the offense due to the conduct of the offender was exacerbated because of the physical or mental condition or age of the victim. *503
{¶ 68} "(2) The victim of the offense suffered serious physical, psychological, or economic harm as a result of the offense.
{¶ 69} "(3) The offender held a public office or position of trust in the community, and the offense related to that office or position.
{¶ 70} "(4) The offender's occupation, elected office, or profession obliged the offender to prevent the offense or bring others committing it to justice.
{¶ 71} "(5) The offender's professional reputation or occupation, elected office, or profession was used to facilitate the offense or is likely to influence the future conduct of others.
{¶ 72} "(6) The offender's relationship with the victim facilitated the offense.
{¶ 73} "(7) The offender committed the offense for hire or as a part of an organized criminal activity.
{¶ 74} "(8) In committing the offense, the offender was motivated by prejudice based on race, ethnic background, gender, sexual orientation, or religion.
{¶ 75} "(9) If the offense is a violation of section
{¶ 76} One of the R.C.
{¶ 77} R.C.
{¶ 78} "(1) The victim induced or facilitated the offense.
{¶ 79} "(2) In committing the offense, the offender acted under strong provocation.
{¶ 80} "(3) In committing the offense, the offender did not cause or expect to cause physical harm to any person or property.
{¶ 81} "(4) There are substantial grounds to mitigate the offender's conduct, although the grounds are not enough to constitute a defense." R.C.
{¶ 82} Appellant argues that the victim, Sheena, came on to him and seduced him, thus facilitating the offense. However, in Sheena's statement to the police she stated that appellant sexually assaulted her by forcing her to submit to sex with him without her consent. Since this case never went to trial, we cannot be *504 sure of the facts surrounding the offense. Accordingly, we cannot say appellant's conduct was less serious than that normally constituting sexual battery.
{¶ 83} R.C.
{¶ 84} "(1) At the time of committing the offense, the offender was under release from confinement before trial or sentencing, * * *, or under post-release control pursuant to section
{¶ 85} "(2) The offender previously was adjudicated a delinquent child * * *, or the offender has a history of criminal convictions.
{¶ 86} "(3) The offender has not been rehabilitated to a satisfactory degree after previously being adjudicated a delinquent * * *, or the offender has not responded favorably to sanctions previously imposed for criminal convictions.
{¶ 87} "(4) The offender has demonstrated a pattern of drug or alcohol abuse that is related to the offense, and the offender refuses to acknowledge that the offender has demonstrated that pattern, or the offender refuses treatment for the drug or alcohol abuse.
{¶ 88} "(5) The offender shows no genuine remorse for the offense." R.C.
{¶ 89} At least three of these factors weigh heavily against appellant. At the time of the offense, appellant was under post-release control. Importantly, appellant already had a conviction for committing the same offense against the same victim, which demonstrates that he had not been satisfactorily rehabilitated. Appellant admitted he has a drug and alcohol problem and asked the court for help. But he had been seeing a chemical dependency counselor who testified at his sentencing. The counselor stated that he was not sure appellant was ready to make a commitment to recover from his addiction. Finally, appellant did not show any remorse for his offense. At his sentencing hearing, appellant stated that he felt bad about what he did to Sheena. But in the next breath, he stated he believed Sheena was more to blame than he was for the offense. Hence, these factors suggest that appellant is likely to commit future crimes.
{¶ 90} R.C.
{¶ 91} "(1) Prior to committing the offense, the offender had not been adjudicated a delinquent child.
{¶ 92} "(2) Prior to committing the offense, the offender had not been convicted of or pleaded guilty to a criminal offense. *505
{¶ 93} "(3) Prior to committing the offense, the offender had led a law-abiding life for a significant number of years.
{¶ 94} "(4) The offense was committed under circumstances not likely to recur.
{¶ 95} "(5) The offender shows genuine remorse for the offense."
{¶ 96} Like the R.C.
{¶ 97} Based on the overriding purposes and principles of sentencing and the applicable sentencing factors, appellant's sentence is not contrary to law. Accordingly, his fourth assignment of error is without merit.
{¶ 98} For the reasons stated above, the trial court's decision is hereby affirmed.
Judgment affirmed.
Waite, P.J., and Vukovich, J., concur.