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State v. Peyatt

Court of Appeals of Ohio, Seventh District, Monroe

August 28, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
WILLIAM D. PEYATT, Defendant-Appellant.

          Criminal Appeal from the Court of Common Pleas of Monroe County, Ohio Case No. 2017-186

         JUDGMENT: Affirmed in part; Reversed and Vacated in part.

          Atty. James L. Peters, Monroe County Prosecutor, Atty. Helen Yonak, Assistant Prosecutor, for Plaintiff-Appellee and

          Atty. 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. D'Apolito, Judges.

          OPINION AND JUDGMENT ENTRY

          ROBB, J.

         {¶1} 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.

         Statement of the Facts and Case

         {¶2} 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 Indictment.

         {¶3} Appellant entered a not guilty plea and following pretrial motions and discovery, the case proceeded to a jury trial.

         {¶4} 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.

         {¶5} 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.

         {¶6} 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).

         {¶7} 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.

         {¶8} 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.

         {¶9} Appellant timely appealed the convictions.

         First Assignment of Error

         "There 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."

         {¶10} Appellant asserts there was insufficient evidence for the attempted gross sexual imposition conviction.

         {¶11} 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.

         {¶12} 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.

         {¶13} 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.

         {¶14} 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 ...


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