State v. Elston , 2012 Ohio 2842 ( 2012 )

[Cite as State v. Elston, 2012-Ohio-2842.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
PUTNAM COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 12-11-11
v.
RICHARD E. ELSTON, OPINION
DEFENDANT-APPELLANT.
Appeal from Putnam County Common Pleas Court
Trial Court No. 2011 CR 32
Judgment Affirmed
Date of Decision: June 25, 2012
APPEARANCES:
Nicole M. Winget for Appellant
Todd C. Schroeder for Appellee
Case No. 12-11-11
PRESTON, J.
{¶1} Defendant-appellant, Richard Elston, appeals the Putnam County
Court of Common Pleas’ sentence of five years imprisonment following his plea
of guilty to gross sexual imposition. Elston contends his sentence is unsupported
by the record. For the reasons that follow, we affirm.
{¶2} On March 4, 2011, a Putnam County grand jury indicted Elston on
three counts of rape, violations of R.C. 2907.02(A)(1)(b) and (A)(2) and felonies
of the first degree, and two counts of gross sexual imposition, violations of R.C.
2907.05(A)(4) and felonies of the third degree. (Doc. No. 1). The charges
stemmed from allegations that Elston had, on multiple occasions, digitally
penetrated his stepdaughter’s vagina when she was nine and ten years old. (PSI).
The victim’s sister, who is also Elston’s stepdaughter, alleged Elston had
inappropriately touched her on several occasions by rubbing her breasts and
placing her hand on his penis. (Id.).
{¶3} The trial court arraigned Elston on March 8, 2011. (Doc. No. 13).
Elston pleaded not guilty to the charges. (Id.).
{¶4} On September 2, 2011, Elston changed his plea to guilty to one count
of gross sexual imposition pursuant to a plea agreement. (Doc. No. 96). The State
dismissed the remaining charges and agreed to remain silent at the sentencing
hearing. (Id.).
-2-
Case No. 12-11-11
{¶5} The trial court held a sentencing hearing on October 19, 2011. (Doc.
No. 105). After hearing two victim impact statements, the trial court found that
Elston had a prior felony sex offense conviction, that he had served a prior prison
term, that he had used his relationship with the victim to facilitate the offense, that
the victim suffered serious harm, that there were multiple victims of Elston’s
conduct, and that Elston “engaged in multiple sex offense acts over an extended
period of time.” (Id.). The trial court sentenced Elston to five years imprisonment
for gross sexual imposition, the maximum sentence for the offense. (Id.).
{¶6} Elston filed a notice of appeal on November 10, 2011. (Doc. No.
108). Elston now raises a single assignment of error for our review.
Assignment of Error
The trial court erred when imposing a maximum sentence when
the sentence was not supported by the record.
{¶7} In his assignment of error, Elston argues his conduct was not more
serious than conduct normally constituting the offense, so the trial court erred
when it imposed the maximum sentence.
{¶8} A trial court’s sentence will not be disturbed on appeal absent a
defendant’s showing by clear and convincing evidence that the sentence is
unsupported by the record; the sentencing statutes’ procedure was not followed or
there was not a sufficient basis for the imposition of a prison term; or that the
sentence is contrary to law. State v. Ramos, 3d Dist. No. 4-06-24, 2007-Ohio-767,
-3-
Case No. 12-11-11
¶ 23 (the clear and convincing evidence standard of review set forth under R.C.
2953.08(G)(2) remains viable with respect to those cases appealed under the
applicable provisions of R.C. 2953.08(A), (B), and (C) * * *); State v. Rhodes,
12th Dist. No. CA2005-10-426, 2006-Ohio-2401, ¶ 4; State v. Tyson, 3d Dist. Nos.
1-04-38; 1-04-39, 2005-Ohio-1082, ¶ 19, citing R.C. 2953.08(G). Clear and
convincing evidence is that “which will produce in the mind of the trier of facts a
firm belief or conviction as to the facts sought to be established.” Cross v.
Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus; State v. Boshko,
139 Ohio App.3d 827, 835 (12th Dist.2000). An appellate court should not,
however, substitute its judgment for that of the trial court because the trial court is
‘“clearly in the better position to judge the defendant’s dangerousness and to
ascertain the effect of the crimes on the victims.”’ State v. Watkins, 3d Dist. No. 2-
04-08, 2004-Ohio-4809, ¶ 16, quoting State v. Jones, 93 Ohio St.3d 391, 400
(2001).
{¶9} Elston pleaded guilty to gross sexual imposition in violation of R.C.
2907.05(A)(5), a felony of the third degree. (Doc. No. 96). R.C. 2929.14(3)(a)
provides, “[f]or a felony of the third degree that is a violation of section * * *
2907.05 of the Revised Code * * * the prison term shall be twelve, eighteen,
twenty-four, thirty, thirty-six, forty-two, forty-eight, fifty-four, or sixty months.”
-4-
Case No. 12-11-11
Here, the trial court sentenced Elston to five years, or sixty months, the maximum
sentence within the statutory range. (Doc. No. 105).
{¶10} Elston argues that although his sentence is within the statutory range,
the trial court erred by imposing the maximum sentence because it is excessive in
light of his offense. As a preliminary matter, we note that Elston was sentenced
after the effective date of the revisions to the felony sentencing statutes under H.B.
86. The revised sentencing statutes require, among other things, that the trial court
make findings on the record in specific circumstances, such as when imposing a
consecutive sentence. State v. Hites, 3d Dist. No. 6-11-07, 2012-Ohio-1892, ¶ 11;
R.C. 2929.14. However, the trial court is not required to make findings here
because Elston was sentenced to prison on a single gross sexual imposition
offense. See R.C. 2929.14. Consequently, the trial court had the full discretion to
sentence Elston to any term of imprisonment within the statutory range. State v.
Foster, 109 Ohio St.3d 1, 2006-Ohio-856, paragraph seven of the syllabus.
However, the trial court was still required to consider the sentencing purposes in
R.C. 2929.11 and the guidelines contained in R.C. 2929.12. State v. Stone, 3d
Dist. No. 9-11-39, 2012-Ohio-1895, ¶ 10, citing Foster at ¶ 36-42.
{¶11} R.C. 2929.12(B) states, in pertinent part:
The sentencing court shall consider all of the following that apply
regarding the offender, the offense, or the victim, and any other
-5-
Case No. 12-11-11
relevant factors, as indicating that the offender’s conduct is more
serious than conduct normally constituting the offense:
(1) The physical or mental injury suffered by the victim of the
offense due to the conduct of the offender was exacerbated because
of the physical or mental condition or age of the victim.
(2) The victim of the offense suffered serious physical,
psychological, or economic harm as result of the offense.
***
(6) The offender’s relationship with the victim facilitated the
offense.
Furthermore, the sentence should be reasonably calculated to achieve the
overriding purposes of felony sentencing contained in R.C. 2929.11, which are “to
protect the public from future crimes by the offender and others and to punish the
offender, and shall be commensurate with and not demeaning to the seriousness of
the offender’s conduct and its impact upon the victim, and consistent with
sentences imposed for similar crimes committed by similar offenders.” Hites at ¶
8.
{¶12} At the sentencing hearing, the trial court reviewed Elston’s PSI and
the victim impact statements. (Doc. No. 105). One of Elston’s stepdaughters
submitted a statement where she detailed the long-term mental and emotional
-6-
Case No. 12-11-11
injury she suffered as a result of Elston’s conduct. (Sentencing Tr. at 12-18). The
victim stated that Elston had ruined years of her life, that she was scared to be
alone with Elston for the many years while they lived in the same home, that she is
afraid he may have hurt her youngest sister, that she is currently unable to trust
men, that she feels insecure about herself, and that she does not believe she can
live a normal life. (Id.). The victims’ mother also expressed anger at Elston,
stating “you stole my daughters’ childhood from them and made them live in fear
for so many years,” and “[m]y children looked up to you, and you were supposed
to be a father figure to them and instead you took advantage of that.” (Id. at 9).
Regarding Elston’s sentence, the victims’ mother further stated:
the fact that you took a plea agreement in no way gives justice to my
girls. The fact that the maximum is five years is only a slap on the
hand for you, considering that from the first time you touched my
daughters until they were brave enough to come forward you took
ten years from their lives, not to mention the years it will take them
to finally move on and put this behind them, if that day ever comes
for them. You deserve life for your crimes because that is what
you’ve taken from them.1
1
This Court has previously recognized that, during sentencing, there are limits on a trial court’s
consideration of the allegations that form the basis of charges dismissed pursuant to a plea agreement.
State v. Blake, 3d Dist. No. 14-03-33, 2004-Ohio-1952, ¶ 5; State v. Park, 3d Dist. No. 3-06-14, 2007-
Ohio-1084, ¶ 7.
-7-
Case No. 12-11-11
(Sentencing Tr. at 9-10). Elston’s PSI indicated that he had served a prior prison
sentence for a corruption of a minor conviction, a felony sex offense. (PSI).
According to the PSI, Elston repeatedly had sexual contact with his nine-year-old
stepdaughter over a two or three year period. (Id.). The stepdaughter is currently
fourteen years of age and stated that she did not tell anyone about Elston’s conduct
when it was occurring. (Id.).
{¶13} The trial court also questioned Elston regarding his version of the
events. (Sentencing Tr. at 18-19). Elston claimed that he accidentally touched
one of the victims when he was tickling her and pulled her shorts down. (Id. at
19). Elston claimed he did not have any other sexual contact with either of his
stepdaughters. (PSI). The trial court stated:
Well, that simply does not comport with what are the statements of
the victims in this case. The Court does not believe your version of
events. The Court finds that, first of all, you have served a prison
term, you have a prior conviction. You also have, according to the
Court’s file, a relationship with the victim which facilitated this
offense; that the victim suffered serious physical, psychological, or
economic harm as a result; that the injury was worsened because of
the age of the victims in this offense.”
(Id. at 19-20).
-8-
Case No. 12-11-11
{¶14} We cannot find that the trial court erred by imposing the maximum
sentence for this offense. The trial court’s finding that Elston’s conduct was more
serious than conduct that normally constitutes the offense according to the factors
listed in R.C. 2929.12(B) is supported by the record, which demonstrates that
Elston was the victims’ stepfather and used his relationship to commit the offense,
that the victims were children at the time of the offense, and that the victims have
suffered serious mental and emotional harm as a result. (PSI). Furthermore,
Elston’s sentence is consistent with the sentencing purposes provided in R.C.
2929.11 by punishing Elston, protecting the public, and recognizing the
seriousness of his offense.
{¶15} Elston’s assignment of error is, therefore, overruled.
{¶16} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI and ROGERS, J.J., concur.
/jlr
-9-