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State v. Peddicord

Court of Appeals of Ohio, Third District

August 5, 2013

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
MAURICE C. PEDDICORD, III, DEFENDANT-APPELLANT.

Appeal from Henry County Common Pleas Court Trial Court No. 12 CR 0065.

Alan J. Lehenbauer for Appellant.

John H. Hanna for Appellee.

OPINION

ROGERS, J.

{¶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 R.C. 2907.05(A)(4)(C)(2), a felony of the third degree.[1] The Bill of Information arose from Peddicord's alleged sexual abuse of R.P., a three-year old female, while he was responsible for supervising her.

{¶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 948[2] 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. Based on these considerations, the trial court sentenced Peddicord to a prison term of five years for each count, to be run consecutively, for a total of 10 years.

{¶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 ...

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