Court of Appeals of Ohio, Seventh District, Monroe
Criminal Appeal from the Court of Common Pleas of Monroe
County, Ohio Case No. 2017-186
Affirmed in part; Reversed and Vacated in part.
James L. Peters, Monroe County Prosecutor, Atty. Helen Yonak,
Assistant Prosecutor, for Plaintiff-Appellee and
Timothy Young, Ohio Public Defender, Atty. Christina
Madriguera, Assistant Public Defender, Atty. Jonathan Tewart,
Assistant State Public Defender, Atty. Joseph Medici, Chief
Counsel, Legal Division, for Defendant-Appellant .
BEFORE: Carol Ann Robb, Gene Donofrio, David A.
OPINION AND JUDGMENT ENTRY
Appellant William Peyatt appeals from his convictions entered
in Monroe County Common Pleas Court for gross sexual
imposition, attempted gross sexual imposition, and
disseminating matter harmful to juveniles. Three issues are
raised in this appeal. First, Appellant contends there was
not sufficient evidence for the attempted gross sexual
imposition conviction. Second, Appellant contends the
imposition of consecutive prison terms is not clearly and
convincingly supported by the record. Third, Appellant
asserts he was deprived of a fair trial when the trial court
failed to give a curative instruction; during voir dire
jurors saw him in the hallway of the courthouse in shackles.
For the reasons expressed below, the convictions for gross
sexual imposition and disseminating matter harmful to
juveniles are affirmed. The conviction for attempted gross
sexual imposition is reversed and vacated.
of the Facts and Case
Appellant was indicted for eight sex crimes in June 2017. The
two victims in this case are K.B. and A. B. The first four
counts of the indictment were for gross sexual imposition a
violation of R.C. 2907.05(A)(4), third-degree felonies. K.B.
was the alleged victim of two counts and A.B. was the alleged
victim of the other two counts. He was also indicted for one
count of attempted gross sexual imposition in violation of
R.C. 2907.05(A)(4) and R.C. 2923.02, a fourth degree felony
and one count of disseminating matter harmful to a juvenile
in violation of R.C. 2907.31(A)(1), a fifth-degree felony.
A.B. was the alleged victim of attempted gross sexual
imposition; both were the alleged victims of the
dissemination charge. The seventh and eighth counts of the
indictment were for rape in violation of R.C. 2907.029(A)(2),
a first-degree felony and unlawful sexual conduct with a
minor in violation of R.C. 2907.04, a fourth-degree felony.
The victim of those crimes was allegedly K.B. 6/15/17
Appellant entered a not guilty plea and following pretrial
motions and discovery, the case proceeded to a jury trial.
At trial, A.B. testified Appellant touched her private areas
(breasts and vaginal area) over top of her clothes when she
was 12 years old. Tr. 344-346. She stated this happened on
more than one occasion; she described two distinct instances.
Tr. 344, 345-347. She also testified that on one occasion
while they were working on a derby car, Appellant told her to
look and when she looked he exposed his penis. Tr. 348-351.
Regarding these incidents, Appellant told her to be quiet
about it and if she ever told anyone she would be in trouble.
Tr. 348, 353. She also testified that he showed her pictures
of his penis on his phone. Tr. 353.
K.B. testified Appellant first began by touching her private
areas (breasts and vaginal area) over her clothes when she
was 10, 11, or 12. Tr. 373. She stated it happened on more
than one instance and progressed to under the clothes and
then to rape. Tr. 373-381. She also testified Appellant
showed her pictures of his penis on his phone. Tr. 390.
Testimony was also heard from Sexual Assault Nurse Examiner
(SANE) Leslie Doerfler, RN, who talked to both children at
Belmont Community Hospital and Robert Scott Steele, a Harmony
House interviewer (Harmony House is a child advocacy center).
The Jury found Appellant guilty of the four counts of gross
sexual imposition, one count of attempted gross sexual
imposition, and one count of disseminating matter harmful to
juveniles. Appellant was found not guilty of the rape and
unlawful sexual conduct with minor charges. 3/22/18 J.E.;
3/22/18 Jury Verdicts.
Appellant was sentenced to an aggregate sentence of 270
months. 3/27/18 J.E.; Tr. 614. He received 60 months for each
gross sexual imposition conviction, 18 months for the
attempted gross sexual imposition, and 12 months for
disseminating harmful materials to juveniles. 3/27/18 J.E.;
Tr. 612-613. The sentences were ordered to be served
consecutive. 3/27/18 J.E.; Tr. 612.
Appellant timely appealed the convictions.
Assignment of Error
is insufficient evidence to support Mr. Peyatt's
conviction and eighteen-month sentence for attempted gross
sexual imposition in violation of R.C. 2923.02
[2907.05(A)(4)], a felony of the fourth degree."
Appellant asserts there was insufficient evidence for the
attempted gross sexual imposition conviction.
As stated above, A.B. is the alleged victim of the attempted
gross sexual imposition charge. She testified to two specific
incidents of gross sexual imposition. She also testified
Appellant told her to look and then he exposed his penis. It
is this exposure that is alleged to be the attempted gross
sexual imposition. It is undisputed that Appellant did not
tell A.B. to touch his penis or force her to touch his penis.
Appellant contends this exposure is not sufficient to amount
to attempted gross sexual imposition. He does not attack any
other conviction on the grounds of sufficiency.
The state argues the evidence is sufficient to amount to
gross sexual imposition. It contends when all of A.B.'s
testimony is considered and viewed in the light most
favorable to the prosecution, there is sufficient evidence of
attempted gross sexual imposition. This is because there were
two prior acts of sexual contact and the jury could infer
that the act of telling her to look at his penis was a
substantial step towards having sexual contact with her. The
state's argument is a grooming argument.
Sufficiency of the evidence is the legal standard applied to
determine whether the case may go to the jury or whether the
evidence is legally sufficient as a matter of law to support
the verdict. State v. Smith,80 Ohio St.3d 89, 113,
684 N.E.2d 668 (1997). In determining whether the evidence is
legally sufficient to support a conviction, "'[t]he
relevant inquiry is whether, after viewing the evidence in a
light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime
proven beyond a reasonable doubt.'" State v.
Robinson,124 Ohio St.3d 76, 2009-Ohio-5937, 919 N.E.2d
190, ¶ 34, quoting State v. Jenks, 61 Ohio
St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the
syllabus. A verdict will not be disturbed unless, after
viewing the evidence in a light most favorable to the
prosecution, it is apparent that reasonable minds could not
reach the conclusion reached by the trier of fact. State
v. Treesh,90 Ohio St.3d 460, 484, 739 N.E.2d 749
(2001). In a sufficiency of the evidence inquiry, appellate
courts do not assess whether the ...