State v. PeddicordState v. Peddicord
{¶1} Defendant-Appellant, Maurice C. Peddicord, III, appeals the judgment of the Court of Common Pleas of Henry County, finding him guilty of two counts of gross sexual imposition and sentencing him to 10 years in prison. On appeal, Peddicord contends the trial court erred by: (1) finding him guilty based on insufficient evidence; (2) failing to merge his convictions for gross sexual imposition for the purposes of sentencing; and (3) imposing a mandatory sentence, a maximum sentence, and consecutive sentences. For the reasons that follow we affirm in part and reverse in part the trial court‘s judgment.
{¶2} On October 23, 2012, pursuant to a plea agreement, the State re-filed a Bill of Information alleging two counts of gross sexual imposition in violation of
{¶3} Also on October 23, 2012, the trial court conducted a plea hearing. At the hearing, the State read the following statement of facts into the record:
[I]n the County of Henry, in the State of Ohio, specifically in Napoleon, Ohio, as to Count One on or between June 14, 2012 and June 17, 2012 Mr. Peddicord, Maurice Peddicord, III, did engage in sexual contact with another person, in this case, [R.P.] who was at that time 3 years of age and therefore obviously less than 13 years of
age and obviously not his spouse, the sexual contact involved as related by the victim, playing on the bed, on her bed, and “Yo” as she called [him] would be naked and would touch her with his penis in the area of her mouth and that it was yucky. As to Count Two on the dates, June 17, 2012 to June 20, 2012 again in the City of Napoleon, Henry County, Ohio, Mr. Peddicord did engage in sexual contact again with [R.P.] who was 3 years of age, that sexual contact being the touching of his penis in the area of her mouth or perhaps with her hands as well. I would indicate that I have marked as State‘s Exhibit 1 and would ask for its admission the DNA report from the bed on which these games were played showing semen that I believe the numbers are 1 in 2 quintillion 9482 quadrillion [sic] to 1 that the semen came from either the defendant or his twin brother who was at that time incarcerated at CCNO facing other charges.3 Again, on that count the victim was [R.P.] who was 3 years of age at the time and not the spouse of the defendant and we would move the admission of State Exhibit 1.
Plea Hearing Tr., p. 9-10. After the State read the statement of facts, the Court admonished Peddicord of his constitutional rights and advised him of a possible maximum sentence. Peddicord entered a plea of no contest for both counts of gross sexual imposition alleged in the Bill of Information. Subsequently, the trial court found him guilty on both counts.
{¶4} The trial court conducted a sentencing hearing for Peddicord on December 4, 2012. The State requested the court to impose the maximum sentence for Peddicord‘s conduct:
[I]n looking at the more serious verses [sic] the less serious, the age of the victim being a 3 year old at the time that the defendant committed these sexual assaults upon her, the victim having suffered serious physical and psychological harm as a result of the offense, and the offenders [sic] relationship, he was actually the caregiver for this child and abused that relationship by choosing to engage in sexual contact with her. This is a mandatory prison sentence because there was additional evidence other than simply the statement of the girl, there was semen found on the sheets of the little girls [sic] bed that was directly identified as the defendants [sic]. In the categories of less serious there aren‘t any that fit. The victim certainly did not facilitate the offense, there is no strong provocation here for what he did, there aren‘t any substantial grounds to mitigate the conduct of having sexual contact with a 3 year old and certainly the defendant can‘t in any way argue that he would not have expected that [sic] to cause any psychological harm to a 3 year old by engaging in sexual contact with that 3 year old child. Based upon that the State would recommend a sentence of 5 years on each count to be served consecutively to one another.
Sentencing Tr., p. 7.
{¶5} Peddicord argued for a more lenient sentence, noting that recidivism was less likely since he had no prior juvenile or adult record, and had led a law abiding life for a significant number of years until this incident. Peddicord also noted how he took responsibility for his actions through his plea and spared R.P. and her family from going through “further turmoil.” Id. at 8.
{¶6} In making its sentencing determination, the trial court considered “all those factors as set forth in 2929.11 and 2929.12 of the Revised Code in addition to 2929.14 of the Revised Code.” Id. It also noted Peddicord‘s lack of a criminal history, the “heinous” nature of the crimes, and Peddicord‘s lack of remorse.
{¶7} Peddicord filed this timely appeal, presenting the following assignments of error for our review.
Assignment of Error No. I
TRIAL COURT ERRED IN FINDING APPELLANT GUILTY PURSUANT TO THE NO CONTEST PLEA AS THERE WAS INSUFFICIENT EVIDENCE PRESENTED TO FIND APPELLANT GUILTY OF THE TWO CHARGES FOR GROSS SEXUAL IMPOSITION.
Assignment of Error No. II
THE TRIAL COURT COMMITED PLAIN ERROR IN FAILING TO MERGE COUNT ONE WITH COUNT TWO OF THE BILL OF INFORMATION FOR SENTENCING PURPOSES OR AT LEAST IN FAILING TO CONDUCT AN ALLIED OFFENSES OF SIMILAR IMPORT ANALYSIS PRIOR TO SENTENCING THE APPELLANT.
Assignment of Error No. III
THE TRIAL COURT ERRED BY IMPOSING THE MAXIMUM SENTENCE AND/OR CONSECUTIVE SENTENCES FOR APPELLANT‘S CONVICTIONS FOR TWO COUNTS OF GROSS SEXUAL IMPOSITION.
Assignment of Error No. I
{¶8} In his first assignment of error, Peddicord contends that his convictions are supported by insufficient evidence. He further argues that the
Standard of Review
{¶9} When an appellate court reviews the record for sufficiency, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. State v. Monroe, 105 Ohio St.3d 384, 2005-Ohio-2282, ¶ 47. Sufficiency is a test of adequacy. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997), superseded by constitutional amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89 (1997). Accordingly, the question of whether the offered evidence is sufficient to sustain a verdict is a question of law. State v. Wingate, 9th Dist. Summit No. 26433, 2013-Ohio-2079, ¶ 4.
No-Contest Pleas
{¶10} Under
{¶11} In State v. Lichtenberger, 3d Dist. Van Wert Nos. 15-02-13, 15-03-03, 2003-Ohio-1581, the defendant pleaded no contest to one count of gross sexual imposition and one count of pandering obscenity involving a minor. He later appealed to this court, contending that the trial court erred in finding that the State‘s statement of the facts contained sufficient evidence for the court to find him guilty. Count two of the appellant‘s indictment read:
On or about the 26th day of November 2001 in Van Wert County, Ohio, Aron D. Lichtenberger did have sexual contact with another who is not the spouse of the offender or cause another, not the spouse of the offender, to have sexual contact with the offender when the victim is less than thirteen years of age, whether or not the offender knows the age of the victim.
Id. at ¶ 9. We found that this language in the indictment mirrored the language of
{¶12} Similar language was used in this case. The State‘s Bill of Information reads as follows:
Maurice C. Peddicord, III, the Defendant, on or between June 14, 2012 and June 17, 2012 did in this County violate Section 2907.05(A)(4)(C)(2) of the Ohio Revised Code, in that the said Maurice C. Peddicord, III did knowingly have sexual contact with another, not the spouse of the said Maurice C. Peddicord, III, and the
other person was less than thirteen years of age, whether or not the said Maurice C. Peddicord, III knew of the age of the other person. * * *
Maurice C. Peddicord, III, the Defendant, on or between June 17, 2012 and June 20, 2012, did in this County violate Section 2907.05(A)(4)(C)(2) of the Ohio Revised Code, in that the said Maurice C. Peddicord, III did knowingly, have sexual contact with another, not the spouse of the said Maurice C. Peddicord, III, and the other person was less than thirteen years of age, whether or not the said Maurice C. Peddicord, III knew of the age of the other person.
(Docket No. 2, p. 1-2). As in Lichtenberger, the State‘s language mirrored that of the
(A) No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more persons to have sexual contact when any of the following applies:
* * *
(4) The other person, or one of the other persons, is less than thirteen years of age, whether or not the offender knows the age of that person.
Due to the consistency between the State‘s Bill of Information and the language contained in
{¶13} Peddicord also argues that the Bill of Information failed to establish the sexual contact happened on two separate incidents merely because there is an
{¶14} On appeal, Peddicord also maintains that an essential element of gross sexual imposition was negated by the prosecutor‘s statement of facts. Unlike a misdemeanor offense, the prosecution is not required to present a statement of facts when the trial court accepts a defendant‘s plea of no contest to a felony charge. State v. Cooper, 168 Ohio App.3d 378, 2006-Ohio-4004, ¶ 6 (2d Dist.). However, if the prosecutor does present a statement of facts and those facts directly contradict the felony charged in the indictment by negating an essential element to the commission of the alleged offenses, the court cannot make a finding of guilty based on the charges alleged in the indictment. Id.
{¶15} Specifically, Peddicord argues that in its statement of facts, the State described the “sexual contact” as Peddicord touching R.P. “with his penis in the area of her mouth,” Plea Hearing Tr., p. 9-10, which does not meet the definition of “sexual contact” as defined by the Ohio Revised Code. “Sexual contact” is defined as “touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or if the person is a female, a breast, for
{¶16} Indeed, Ohio courts have typically found that the list of erogenous zones in
{¶17} In State v. Risch, 3d Dist. Wyandot No. 16-10-14, 2011-Ohio-3633, the defendant appealed a judgment finding him guilty of multiple sex offenses. Risch at ¶ 1. The first count of Risch‘s indictment alleged that Risch had sexual contact with TNF. Id. at ¶ 6. During the trial, TNF testified that Risch had grabbed her wrist and forced her hand to touch his genitals. Id. at ¶ 7. We found
{¶18} Therefore, we overrule Peddicord‘s first assignment of error.
Assignment of Error No. II
{¶19} In his second assignment of error, Peddicord argues that the trial court erred when it failed to merge his gross sexual imposition convictions for sentencing purposes. We disagree.
Standard of Review
{¶20} Peddicord never raised the issue of merger at sentencing. This failure results in a waiver of all but plain error. State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, ¶ 31. In order to have plain error under
Allied Offenses of Similar Import
{¶21} It is well established that multiple violations of the same statute do not constitute allied offenses of similar import under
{¶22} Here, Peddicord pleaded no contest to two counts of gross sexual imposition. Based on this well-settled rule that multiple violations of the same statute are not allied offenses, we find that the trial court did not err in failing to merge Peddicord‘s convictions for the purposes of sentencing.
{¶23} Accordingly, we overrule Peddicord‘s second assignment of error.
Assignment of Error No. III
{¶24} For his third assignment of error, Peddicord contends that the trial court erred when sentencing him to the maximum sentence and sentencing him to consecutive sentences. Specifically, Peddicord argues that the trial court failed to sufficiently consider all factors required by law. Peddicord also challenges the trial court‘s imposition of a mandatory sentence. We agree in part and disagree in part.
Mandatory Prison Sentence
{¶25} On appeal, Peddicord argues that the trial court erred in issuing a mandatory prison sentence pursuant to
{¶26} Peddicord has no prior criminal history. Thus, at issue is whether evidence was offered that corroborates his gross sexual imposition convictions. Here, the State offered Exhibit 1 into evidence, which was a DNA analysis of the victim‘s bed sheet. The results showed that there was a 1 in 2 quintillion 982 quadrillion chance that the semen came from someone other than the defendant or his twin brother, who was incarcerated at the time the sexual contact took place. This evidence corroborates the allegation that Peddicord played “games” with R.P. on her bed and made sexual contact with her and satisfies the requirements of
Maximum Sentence
{¶27} Trial courts have full discretion to impose any sentence within the statutory range. State v. Saldana, 3d Dist. Putnam No. 12-12-09, 2013-Ohio-1122, ¶ 20. Since Peddicord was convicted of third degree felonies, the relevant range of prison sentence is between one and five years.
{¶28} R.C. Chapter 2929 governs sentencing. When sentencing a felony offender, the trial court must consider
{¶29} The trial court must also consider the factors set forth under
{¶30} The Ohio Revised Code does not mandate that the sentencing judge use specific language or make specific findings on the record when considering the applicable seriousness and recidivism factors. State v. Arnett, 88 Ohio St. 3d 208, 215 (2000);
{¶31} Here, the trial court sentenced Peddicord to the maximum sentence authorized by statute. At the sentencing hearing, the trial court acknowledged that it had considered the appropriate sentencing factors and the purpose behind the sentencing statutes.
When I sit and think about what is an appropriate sentence in a case such as this, taking into consideration all those factors set forth in 2929.11 and 2929.12 of the Revised Code in addition to 2929.14 of the Revised Code. The Court looks at two primary purposes in felony sentencing and those are to protect the public from future crime and to punish the defendant for his conduct. These are heinous crimes and there is no showing of any remorse.
{¶32} The record as a whole also supports the trial court‘s sentence. The Pre-Sentence Investigation Report (“PSIR“) revealed that Peddicord was entrusted with babysitting R.P. at the time Peddicord made sexual contact with the victim, satisfying
{¶33} The revisions to the felony sentencing statutes under H.B. 86 now require a trial court to make specific findings on the record, as set forth in
{¶34} Accordingly, we overrule Peddicord‘s third assignment of error insofar as it relates to the trial court‘s imposition of a mandatory and maximum sentence for his convictions. However, we sustain Peddicord‘s third assignment of error insofar as it relates to the trial court‘s imposition of consecutive sentences and remand this matter so that the trial court can consider making the necessary findings to support an imposition of consecutive sentences.
Judgment Affirmed in Part,
Reversed in Part and
Cause Remanded
PRESTON, P.J. and WILLAMOWSKI, J., concur.
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