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State v. Petty

Court of Appeals of Ohio, Tenth District

December 21, 2017

State of Ohio, Plaintiff-Appellee,
v.
Mathias D. Petty, Defendant-Appellant.

         APPEAL from the Franklin County Court of Common Pleas No. 14CR-3744

         On brief:

          Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for appellee.

         Argued:

          Seth L. Gilbert.

         On brief:

          The Hemminger Law Firm, LLC, and Chad K. Hemminger, for appellant.

         Argued:

          Chad K. Hemminger.

          DECISION

          BROWN, J.

         {¶ 1} This is an appeal by defendant-appellant, Mathias D. Petty, from a judgment of the Franklin County Court of Common Pleas resentencing him pursuant to a remand order from this court regarding consecutive sentence findings.

         {¶ 2} On July 16, 2014, appellant was indicted on one count of rape, in violation of R.C. 2907.02, and one count of importuning, in violation of R.C. 2907.07(A). The rape count included a repeat violent offender specification.

         {¶ 3} The following background facts are taken from this court's decision in State v. Petty, 10th Dist. No. 15AP-950, 2017-Ohio-1062, rendered following appellant's direct appeal of his judgment of conviction and sentence for rape and importuning. At trial, C.A., a female, who was age 12 at the time of the events, testified that on June 10, 2014, she began using an app called "the Badoo app." Id. at ¶ 3. The app is "use[d] * * * 'to meet people, ' [and a] user is supposed to be 18 or older." Id.

         {¶ 4} In July 2014, "C.A. began communicating through the Badoo app with a particular individual whose screen name was 'T-h-a-i, ' " and "[t]hey began talking about '[g]iving head, sex, stuff that shouldn't have been talking about.' " Id. at ¶ 4. C.A. did not disclose her age to this individual, and C.A. "did not know the age of the other individual." Id. According to C.A., "Thai first brought up the topic of oral sex on the app." Id.

         {¶ 5} On July 5, 2014, C.A. and her mother were at C.A.'s aunt's house. That evening, C.A. and Thai had been exchanging text messages. Later that night, C.A. went outside on the porch because the individual texting her wanted to " 'come over, and [she] said okay.' " Id. at ¶ 6. The individual was asking C.A. for her address, and C.A. testified: "[h]e was asking me if I was going to do it then. I needed to do it, and if I wasn't, then he doesn't have to come.' " Id. C.A "defined 'it' as he wanted her to [p]erform oral sex." Id.

         {¶ 6} At trial, C.A. identified appellant as Thai, the individual who arrived at her aunt's house that evening. Thai arrived and walked up to the porch. C.A. was texting at the time, and Thai "said, '[y]ou look pretty occupied, and I said okay. * * * Then he said, [i]f you're not going to do it, I can just leave. * * * I said okay, and I stopped texting. * * * He asked me if he wanted to - - if I was going to pull it out or if he was.' " Id. at ¶ 7.

         {¶ 7} C.A. testified that appellant "unzipped his pants. 'He took it out, and I got down on my knees, and I started sucking - - I started giving oral sex.' " Id. at ¶ 8. C.A. testified that she "put appellant's penis in her mouth. Appellant 'was moving my head' with his hand." Id.

         {¶ 8} C.A.'s mother then came out on the porch "and 'started yelling.' Her mother 'was cussing a lot.' " Id. at ¶ 9. C.A. "stood up and her mother 'asked what * * * did I just do, and I said, [n]othing. I wouldn't tell her the truth. And then she started getting louder, and then that's when everybody in the kitchen came outside.' " Id. C.A. testified appellant appeared to be "cornered" on the porch as other members of the family came outside, but appellant "then jumped over the banister, and he ran to his car across the street and drove away." Id. at ¶ 10.

         {¶ 9} C.A. initially told the responding officer that nothing occurred. C.A. "did not tell the truth because she did not want to deal with the consequences." Id. at ¶ 11. Later, at the hospital, she told a detective what happened. The detective showed her a photographic array, and C.A. picked appellant's photograph from the array and identified him as the individual who appeared on the porch that evening.

         {¶ 10} On July 5, 2014, Columbus Police Officer David Schulz responded to a dispatch regarding a reported sexual assault of a minor. Officer Schulz spoke with C.A.'s mother, L.A., "who was 'frustrated, upset, and just distraught all around.' " Id. at ¶ 13. L.A. gave the officer her daughter's phone, and the officer was able to view some messages and "learned that the daughter had used a message service through an app identified as 'Badoo.' " Id. at ΒΆ 14. A family friend "provided the name of suspect ...


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