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State v. Kuykendall

Court of Appeals of Ohio, Twelfth District, Butler

August 21, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
RAYMOND C. KUYKENDALL, Defendant-Appellant.

         CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2016-03-0388

          Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, for plaintiff-appellee

          Katzman Logan Halper & Bennett, Joel G. Deutch, for defendant-appellant

          OPINION

          HENDRICKSON, P.J.

         {¶ 1} Defendant-appellant, Raymond C. Kuykendall, appeals from the sentence he received in the Butler County Court of Common Pleas after he pled guilty to gross sexual imposition.[1] For the reasons set forth below, we affirm his sentence.

         {¶ 2} On March 30, 2016, appellant was indicted on one count of rape of a child younger than ten years in violation of R.C. 2907.02(A)(1)(b), a felony of the first degree. The charges arose out of allegations that from November 4, 2004 to November 3, 2008, while the victim was between the ages of four and seven, appellant engaged in sexual conduct by touching the victim's vaginal area and engaging in cunnilingus with the victim. The victim was appellant's close relative.

         {¶ 3} On November 10, 2016, following plea negotiations, appellant pled guilty to one count of gross sexual imposition in violation of R.C. 2907.05(A)(4), a felony of the third degree.[2] A sentencing hearing was held on December 13, 2016. At the hearing, the trial court heard from appellant and defense counsel. Appellant apologized for his actions, stating, "I'm terribly sorry for anything I did to [the victim]. I didn't want it to happen. I tried hard to push [her] away. And I went straight to her parents and told them that I didn't want [her] to be alone with me anymore. And - I'm sorry." Defense counsel provided a report from Dr. Barbara G. Brewer, Ph.D., a clinical and forensic psychologist who had evaluated appellant and recommended he be sentenced to a treatment program, rather than incarceration. Based on Dr. Brewer's recommendation, appellant's expressed remorse for his actions, and the fact that appellant had no prior criminal history, defense counsel requested that the court impose the "minimal sentence" on appellant.

         {¶ 4} After considering the statements made by appellant and defense counsel and reviewing a presentence investigation report, victim impact statements provided by the victim and two of her family members, Dr. Brewer's report, and a referral letter from the Community Correction Center rejecting appellant from the program based on medical concerns, the trial court concluded that appellant was not amenable to available community control sanctions. The court determined that a prison sentence was necessary and sentenced appellant to 36 months in prison, with jail-time credit of 150 days. The court also classified appellant as a Tier II sex offender.

         {¶ 5} Appellant timely appealed his sentence, raising two assignments of error. As the assignments of error are related, we will address them together.

         {¶ 6} Assignment of Error No. 1:

         {¶ 7} THE TRIAL COURT ERRED BY ISSUING A SENTENCE INCONSISTENT WITH THE EVIDENCE AND RECORD.

         {¶ 8} Assignment of Error No. 2:

         {¶ 9} THE TRIAL COURT ERRED BY NOT FINDING [APPELLANT] REBUTTED THE PRESUMPTION OF INCARCERATION.

         {¶ 10} In his second assignment of error, appellant argues he presented sufficient evidence, by way of Dr. Brewer's report, to rebut the presumption of incarceration. Alternatively, even if the presumption of incarceration had not been rebutted, appellant argues in his first assignment of error that he should have been "given the 1 year minimum sentence on the case due to his lack of record" and the ...


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