2005 Ohio 4570 | Ohio Ct. App. | 2005
{¶ 2} On July 29, 2002, the Franklin County Grand Jury indicted appellant on: (1) rape, a first-degree felony, in violation of R.C.
{¶ 3} On January 16, 2003, appellant pled guilty to the third-degree sexual battery charge. Plaintiff-appellee, the State of Ohio, dismissed the remaining charges. At the plea hearing, appellee mentioned that the victim "did not wish to testify" and that she "was scared to come here[.]" (Jan. 2003 Tr. at 9.) The trial court continued the sentencing for a pre-sentence investigation report.
{¶ 4} The pre-sentence investigation report indicates that staff from the Ohio School for the Deaf called law enforcement officers after the victim told her counselor about the incident. The staff told law enforcement officers that the victim was at a local hospital. Law enforcement officers went to the hospital to investigate. According to the law enforcement officers, they arrived at the hospital to find the victim refusing a "sexual assault kit" and saying that "she just wanted it to be over." The pre-sentence investigation report also contains victim and witness interviews pertaining to the July 23, 2001 incident.
{¶ 5} Law enforcement interviewed the victim at the hospital, and she provided the following information. On July 23, 2001, the victim's uncle took her and Ms. Croasmun to the Ohio School for the Deaf. The victim's uncle asked a staff member at the school "if it was okay that the girls stay overnight at the school." The staff member stated that "it was okay[,]" and that he was "supervising the dorm that evening." At the school, the victim and Croasmun socialized with some friends. Appellant was also at the school. People were drinking, and the victim drank six bottles of beer. She then felt dizzy and lay down on a bed. Thereafter:
* * * She thought [appellant] shut off the lights; he then jumped on top of her holding down her right wrist. She began to scream and her friends ran into the room and stopped him. * * *
The victim stated that appellant "never penetrated her."
{¶ 6} In their investigative report, law enforcement officers noted that the staff member who allowed the victim to spend the night "did not have the authority to give the permission."
{¶ 7} Law enforcement officers also talked with a witness, Mr. Cook, who provided the following information. Cook and appellant were at the Ohio School for the Deaf socializing and drinking beer that they had bought. "The victim had begged for some beer and he finally gave her some[.]" She drank "about five beers." Next, "the victim started making `the moves' on [appellant,]" and appellant and the victim started kissing. Cook and Croasmun then separated the victim and appellant, but appellant and the victim later left the room together. Afterward, Cook "heard a strange noise" and found appellant and the victim in a room with appellant "on top of the victim." Appellant "had his pants halfway down and the victim's pants were completely off." "The victim * * * complained that her anus hurt." Eventually, "the victim was taken" to a bedroom "and put to bed."
{¶ 8} Mr. Artino also spoke with law enforcement officers about the July 23, 2001 incident. Artino told law enforcement officers that he did not see the incident, but that the victim subsequently told him that "her anus hurt really bad" and that appellant raped her by putting "his penis in her anus."
{¶ 9} Croasmun sent law enforcement officers an e-mail message and stated the following about the July 23, 2001 incident. Appellant brought beer to the Ohio School for the Deaf. In the course of events, appellant and the victim became intoxicated and they "were left alone in a room." "When [Cook] heard the victim scream they went into the room and found the offender on top of the victim." The victim claimed that appellant "raped her[,]" but Croasmun did not believe the victim.
{¶ 10} Law enforcement officers interviewed the victim again on March 26, 2002. Although the victim previously told law enforcement officers that appellant did not penetrate her during the July 23, 2001 incident, the victim stated at this subsequent interview that she and appellant did have anal intercourse and that she did not consent to the sexual activity. The victim also mentioned that appellant "forcibly took off her pants and underwear" and that the victim "kept telling [appellant] no, both verbally and in sign language." The victim also stated that her anus hurt from the incident and that "she bled from her anal area for several months."
{¶ 11} Appellant spoke with a court official who prepared the pre-sentence investigation report. Appellant provided the following information about the July 23, 2001 incident. Appellant met his friend Cook at the Ohio School for the Deaf. Appellant brought beer and drank ten beers. Although appellant did not want the victim to drink the alcohol, the victim threatened to tell campus security about the beer unless he and Cook gave her some. In the course of events, the victim "came onto" appellant. Appellant then felt "dizzy and sick" from the victim "trying to have sex with [him.]" Thus, appellant "accidentally knocked [the victim] down" and tried to get up. In doing so, appellant put his hand "on [the victim's] buttock for balance and accidentally slip[ped] [his] finger in her anus." Appellant "was aware [that the victim] was between the ages of 14 and 17 years old." Appellant also stated that "he thinks the victim was enjoying herself" during the incident.
{¶ 12} On March 12, 2003, the trial court held a sentencing hearing. The victim attended the hearing and stated that, "I do believe that [appellant] should go to jail." (Jan. 2003 Tr. at 14.) Appellant's defense counsel indicated that appellant "has no prior criminal history whatsoever." Id. The trial court sentenced appellant to four years imprisonment and adjudicated appellant a sexually oriented offender. The trial court imposed a prison sentence on appellant that exceeded the one-year minimum authorized prison term for third-degree felonies. R.C.
{¶ 13} Subsequently, appellant appealed his conviction and sentence inState v. Newcomb, Franklin App. No. 03AP-404,
{¶ 14} On remand, the trial court held another sentencing hearing. At re-sentencing, a new judge was presiding over the trial court. The trial court re-sentenced appellant to three years imprisonment on the third-degree sexual battery charge. In imposing a non-minimum sentence on appellant, the trial court stated: "[T]he shortest term provided for an F3 is not appropriate and would demean the seriousness of the offense, and does not adequately protect the public." (Oct. 2004 Tr. at 20.) The court indicated that it was relying on "the age of the victim, the victim's handicap, * * * the use of alcohol, and very serious physical, not to mention * * * what must be tremendous emotional damage to the victim[.]" Id. By imposing three years imprisonment instead of four years imprisonment, as the previous presiding judge did, the trial court noted that it "perhaps is a little more persuaded by the fact that the defendant has no prior record than [the previous presiding judge] was." Id. Again, the three-year prison sentence exceeded the one-year minimum authorized prison sentence for third-degree felonies, but did not exceed the five-year maximum authorized prison sentence for third-degree felonies. R.C.
{¶ 15} Appellant appeals, raising one assignment of error:
The trial court erred in sentencing Jeffrey N. Newcomb to more than the minimum sentence for a felony of the third degree.
{¶ 16} Appellant's single assignment of error concerns the trial court's decision to impose three years imprisonment on appellant for his third-degree felony conviction. Appellant argues that the trial court erred by imposing more than the minimum authorized prison sentence for his conviction. We disagree.
{¶ 17} When a trial court imposes a term of imprisonment that is greater than the minimum authorized sentence upon a felon, like appellant, who has not previously served a prison term, the trial court must find that "the shortest prison term will demean the seriousness of the offender's conduct or will not adequately protect the public from future crime by the offender or others." R.C.
{¶ 18} R.C.
{¶ 19} However, a trial court's decision to impose a non-minimum sentence is "contrary to law" and subject to remand if, by clear and convincing evidence, the trial court failed to make the requisite findings under R.C.
* * * "* * * [T]hat measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established. It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as is required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal." * * *
State v. Eppinger (2001),
{¶ 20} Here, the trial court imposed a non-minimum sentence on appellant, pursuant to R.C.
{¶ 21} In challenging his sentence, appellant claims that the record does not support the trial court's statement that the victim suffered "what must be tremendous emotional damage[.]" However, as noted above, a trial court is not required to provide reasons behind its R.C.
{¶ 22} First, we examine whether clear and convincing evidence supports the trial court's finding that a minimum sentence "would demean the seriousness of the offense[.]" (Oct. 2004 Tr. at 20.) Initially, we note that the victim did suffer emotional trauma from the sexual abuse. Specifically, at the hospital, the victim stated that she did not want to complete a sexual assault kit because "she just wanted it to be over." Likewise, appellee mentioned during the plea hearing that the victim was "scared" to testify. (Jan. 2003 Tr. at 9.) Such emotional trauma supports the trial court's finding under R.C.
{¶ 23} Moreover, the victim suffered serious physical harm from the sexual abuse, an enumerated factor in R.C.
{¶ 24} "Serious physical harm to persons" also includes "temporary, serious disfigurement[.]" R.C.
{¶ 25} We also note that the victim was 14 years old when she experienced the physical and emotional harm from appellant's sexual abuse. Under R.C.
{¶ 26} Another factor establishing the seriousness of appellant's offense is that appellant, by his own admission, furnished alcohol to the minor victim and committed the sexual abuse while the victim was intoxicated. See State v. Curd, Lake App. No. 2003-L-030,
{¶ 27} Accordingly, based on the above, we conclude that the record supports by clear and convincing evidence the trial court's findings under R.C.
{¶ 28} We further conclude that the record supports the trial court's R.C.
{¶ 29} Next, in his reply brief, appellant argues that his
{¶ 30} Appellant's argument stems from Apprendi v. New Jersey (2000),
{¶ 31} Appellant's arguments are in accord with State v. Montgomery,
{¶ 32} Nonetheless, we reject appellant's contentions based on our decision in State v. Abdul-Mumin, Franklin App. No. 04AP-485,
{¶ 33} As the Twelfth District Court of Appeals stated, Ohio's felony sentencing statutes "`involve guidance for determining the impact of a sentence on public protection and proportionality — determinations that have always been made by a judge in deciding fairness and necessity of a sentence. Those are decisions that have never been consigned to juries and, thus, are not governed by the
{¶ 34} Accordingly, we previously concluded that, under Ohio's felony sentencing statutes, "[a]s long as a court sentences a defendant to a prison term within the stated minimum and maximum terms permitted by law, * * * Blakely and Apprendi are not implicated." State v. Sieng, Franklin App. No. 04AP-556,
{¶ 35} In the final analysis, we conclude that the trial court did not err by imposing a non-minimum prison sentence on appellant. As such, we overrule appellant's single assignment of error and affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
Bryant and Petree, JJ., concur.
