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State of Ohio v. Richard A. Barnhart

November 4, 2011

STATE OF OHIO APPELLEE
v.
RICHARD A. BARNHART APPELLANT



Trial Court No. 09-CR-098

The opinion of the court was delivered by: Yarbrough, J.

Cite as State v. Barnhart,

DECISION AND JUDGMENT

{¶1} Appellant Richard Barnhart appeals a judgment of conviction and sentence for rape from the Ottawa County Court of Common Pleas. For the following reasons we affirm.

{¶2} On July 23, 2009, the Ottawa County grand jury indicted Barnhart on six counts of rape, all first-degree felonies in violation of R.C. 2907.02(A)(1)(b), and twenty-six counts of sexual battery, all third-degree felonies in violation of R.C. 2907.03(A)(5). The victim was Barnhart's step-daughter, who was twelve at the time of the offenses. On September 16, 2010, Barnhart withdrew his previous pleas of not guilty and not guilty by reason of insanity ("NGRI"), and pled guilty to one count of rape. Nolle prosequi were entered on the remaining counts of the indictment.

{¶3} Between his indictment and sentencing, Barnhart underwent two court- ordered psychological and psychiatric examinations at the Court Diagnostic and Treatment Center. These examinations generated two written evaluations by Dr. Charlene Cassel, the first dated September 24, 2009, and the second dated August 17, 2010. The purpose of the first evaluation, ordered pursuant to R.C. 2945.371 upon Barnhart's NGRI plea, was to assess Barnhart's mental status at the time of the offenses, including his level of intellectual function, his understanding of the criminal nature of his acts and his competence to stand trial. In this evaluation, Cassel concluded that Barnhart was not mentally retarded nor was he suffering from any severe mental disease or defect when he committed the crimes. While he appeared to be functioning "in the borderline range intellectually," she concluded "there was no condition which caused Mr. Barnhart not to know the wrongfulness of the actions for which he is charged."

{¶4} The second evaluation was ordered pursuant to R.C. 2951.03 for the purpose of a presentence assessment. Specifically, this evaluation was directed to assessing Barnhart's "mental health, likely recidivism rate, possible alternative placements [to incarceration] and sexual offender classification." As with her first assessment of Barnhart, Cassel found that his intellectual functioning was "in the borderline to low average range." Three tests were also performed, but due to Barnhart's random responses on one, its results were deemed "invalid for interpretation." The remaining two tests ostensibly measured for the risk of recidivism, particularly sexual recidivism. In this evaluation Cassel concluded, in relevant part:

{¶5} "* * * Historically, incest has a relatively low recidivism rate. Unless Mr. Barnhart becomes involved in a similar relationship ([a] woman with pre-adolescent or adolescent children) the likelihood of him repeating his actions is relatively low. Even with this consideration, I highly recommend that Mr. Barnhart become involved in a sex offender program. He needs to take responsibility and develop skills to avoid future such behaviors. I know of no program which might be an alternative to prison."

{¶6} On October 11, 2010, the trial court held sentencing and sexual classification hearings during which defense counsel spoke in mitigation and Barnhart made a statement. Counsel for Barnhart urged for a sentence with a minimum prison term based on several mitigating factors: his lack of a felony record, and specifically the lack of any convictions for sex-related offenses, his borderline mental capacity, his limited education, and his cooperative behavior during the police investigation. The sentencing transcript reflects that the court referred to the principles of sentencing in R.C. 2929.11 and the seriousness and recidivism criteria of R.C. 2929.12, and then stated:

{¶7} "[W]e have had evaluations of the Defendant, and I understand that he has an I.Q, perhaps lower than average, but there is nothing there to indicate to me that he doesn't know right from wrong. Certainly, if that were indicated to me, that would make a significant difference. I also, in reading Dr. Cassel's [August 2010] report, she makes predictions regarding recidivism [sic]. And as to one of the tests that Dr. Cassel performed, she indicates that the chances of recidivism are 32.8 percent. 'Based on his score, there is a 32.8 percent probability that Mr. Barnhart would reoffend.' She calls that [a] low to moderate range, but when we are talking about an F-1 rape, a one-in-three chance is an incredible chance."

{¶8} The court thereafter imposed a mandatory 8-year prison term on the rape count and ordered Barnhart to register as a Tier III child-sex offender. A judgment entry of sentence was filed October 12, 2010.

{¶9} In this appeal Barnhart now assigns one error for review:

{¶10} "The trial court's decision as to sentencing was an abuse of discretion."

{ΒΆ11} Barnhart's counsel argues that the sentencing court misconstrued certain statements in the August 2010 evaluation from which it then assigned greater weight to certain "negative factors" and insufficient weight to other mitigating factors. Citing Cassel's psychological testing, counsel claims the court ignored the favorable portions of this evaluation suggesting a lower risk of recidivism. On one test, called the "Static-99 test," Barnhart scored zero. This score placed him ...


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