[Cite as State v. Bautista, 2016-Ohio-5436.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
: Appellate Case No. 2015-CA-74
Plaintiff-Appellee :
: Trial Court Case No. 15-CR-32
v. :
: (Criminal Appeal from
JULIO BAUTISTA : Common Pleas Court)
:
Defendant-Appellant :
:
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OPINION
Rendered on the 19th day of August, 2016.
...........
MEGAN M. FARLEY, Atty. Reg. No. 0088515, Clark County Prosecutor’s Office, 50 East
Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
BRENT E. RAMBO, Atty. Reg. No. 0076969, Flanagan, Lieberman, Hoffman & Swaim,
15 West Fourth Street, Suite 250, Dayton, Ohio 45402
Attorney for Defendant-Appellant
.............
HALL, J.
{¶ 1} Julio Bautista appeals from his conviction and sentence following a
negotiated guilty plea to one count of illegal use of a minor in nudity-oriented material and
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one count of gross sexual imposition.
{¶ 2} In his sole assignment of error, Bautista challenges the trial court’s imposition
of consecutive sentences. Specifically, he contends the record does not support the trial
court’s consecutive-sentence findings under R.C. 2929.14(C)(4).
{¶ 3} The record reflects that Bautista was charged in a 16-count indictment in
January 2015. The charges included 10 counts of illegal use of a minor in nudity-oriented
material, one count of pandering sexually-oriented material involving a minor, four counts
of gross sexual imposition, and one count of intimidation of a crime victim. The victim of
the offenses was his girlfriend’s 12-year-old daughter. According to a bill of particulars,
the offenses involved Bautista taking nude photographs of the child, photographing her
grabbing a penis, rubbing her breasts and vagina, and threatening to kill her family if she
reported what he was doing.
{¶ 4} Bautista ultimately entered into a plea agreement with the State. He agreed
to plead guilty to one count of illegal use of a minor in nudity-oriented material, a second-
degree felony, and one count of gross sexual imposition, a third-degree felony, in
exchange for the dismissal of all other counts and the preparation of a PSI report. (Plea
Tr. at 4-5). The trial court accepted the plea and found Bautista guilty. (Id. at 11). At
sentencing, the trial court imposed consecutive prison terms of seven years for illegal use
of a minor in nudity-oriented material and five years for gross sexual imposition.
(Sentencing Tr. at 10-11). In support of the consecutive sentences, the trial court made
the following findings:
I do agree with the State of Ohio that consecutive sentences are
necessary to protect the public from future crime and to punish the
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defendant and that they are not disproportionate to the seriousness of his
conduct and to the danger he poses to the public.
And that these offenses were committed as part of a course of
conduct and the harm caused by the offenses was so great or unusual that
no single prison term for any of the offenses committed adequately reflects
the seriousness of the defendant’s conduct. And that’s clear to the Court
from the victim impact statements, and that it may have been made part of
the pre-sentence report.
I’ve read a victim impact statement from the mother of the victim and
then one from the victim herself. It’s clear that there’s been serious
psychological harm to the victim.
She was twelve years old. These offenses occurred in her own
home, a home where she is certainly entitled to feel safe. It appears from
her victim impact statement that she is having a very difficult time dealing
with the aftermath of these offenses.
(Id. at 9-10).
{¶ 5} On appeal, Bautista contends the record does not support the trial court’s
consecutive-sentence findings. His argument implicates R.C. 2929.14(C)(4), which
permits consecutive prison terms
if the court finds that the consecutive service is necessary to protect the
public from future crime or to punish the offender and that consecutive
sentences are not disproportionate to the seriousness of the offender’s
conduct and to the danger the offender poses to the public, and if the court
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also finds any of the following:
***
(b) At least two of the multiple offenses were committed as part of one or
more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender’s conduct.
{¶ 6} Here the trial court made the foregoing findings. We review those findings
under the standard set forth in R.C. 2953.08(G)(2), which authorizes us to vacate
Bautista’s consecutive sentences if we clearly and convincingly find that the record does
not support the trial court’s findings. See State v. Marcum, Ohio Sup. Ct. Slip Opinion No.
2016-Ohio-1002, ¶ 10.
{¶ 7} Bautista argues that the record fails to support any of the trial court’s findings
under R.C. 2929.14(C)(4). First, he contends consecutive sentences were not necessary
to protect the public or to punish him. (Appellant’s brief at 4). He points out that he has no
prior criminal record, that he is remorseful, and that, as a non-citizen, he likely will be
deported to Mexico upon his release from prison. Second, he contends consecutive
sentences are disproportionate to the seriousness of his conduct and to the danger he
poses to the public. He maintains that the existence of some psychological harm to the
victim is not enough to support such a conclusion. (Id. at 4-5). Finally, he contends the
harm he caused is not so great or unusual that no single prison term adequately would
reflect the seriousness of his conduct. He asserts that the record does not reveal anything
making his case “great or unusual” in relation to other cases involving the illegal use of a
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minor in nudity-oriented material and gross sexual imposition.
{¶ 8} Upon review, we find Bautista’s assignment of error to be unpersuasive. We
do not clearly and convincingly find that the record fails to support the trial court’s
consecutive-sentence findings. Documents attached to the PSI report reflect that Bautista
took photographs of the 12-year-old victim’s exposed breasts, stomach, and vagina.
Those documents also reflect that he touched, kissed, and pinched her breasts and that
he rubbed and pinched her vagina. According to the victim, Bautista exposed his penis to
her and threatened to kill her family if she reported his actions. The victim stated that the
incidents occurred in her bedroom at night, often when she was sleeping, and that
Bautista removed her clothing. She reported that he sometimes forcibly held her down
and refused to stop despite her pleas.
{¶ 9} The record includes victim-impact statements from the victim and her mother.
The mother reported that she became depressed and could not sleep or work much after
Bautista’s crimes were discovered. She has suffered financially, emotionally, and
physically and was hospitalized for several days. Bautista’s actions also have damaged
her relationship with her daughter, who exhibits anger and now has behavioral problems
in school. The mother concluded by stating that Bautista had “destroyed” her life.
{¶ 10} We have also reviewed the victim impact statement of the child victim. It too
supports the trial court’s conclusions. The statement confirms the seriousness of the
offender’s conduct and that consecutive sentences are not disproportionate thereto.
{¶ 11} In our view, the facts of this case support the imposition of consecutive
sentences. The record supports a finding that 41-year-old Bautista preyed on the young
child of his live-in girlfriend between September 2014 and January 2015. Upon being
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discovered, he denied knowing how nude photographs of the victim had gotten on his cell
phone. Later, in connection with the presentence investigation, he claimed the victim had
started “kissing [him] and grabbing [his] ass” before eventually asking him to take nude
photos of her. Regarding the alleged touching, he claimed the 12-year-old child simply
had asked him to help her change her clothes.
{¶ 12} Although Bautista has no meaningful prior record, he engaged in criminal
sexual activity with a pre-teen child over an extended period of time, initially trying to
conceal his actions and then lying and/or minimizing what he had done. Although he only
pled guilty to one count of illegal use of a minor in nudity-oriented material and one count
of gross sexual imposition, the trial court was entitled to consider the facts associated
with the other 14 felony counts that were dismissed as part of the plea agreement. See,
e.g., State v. Clemons, 2d Dist. Montgomery No. 26038, 2014-Ohio-4248, ¶ 8
(recognizing that a trial court at sentencing may take into consideration hearsay evidence,
facts related to charges that were dismissed pursuant to a plea bargain, and allegations
contained in a PSI report). Based on the record before us, the trial court certainly could
have concluded that consecutive sentences were necessary to protect the public from
future crime or to punish Bautista and that consecutive sentences were not
disproportionate to the seriousness of his conduct and to the danger he poses to the
public. We are unpersuaded that Bautista does not pose a danger to the public because
he is likely to be deported upon his release from prison. See State v. Balbi, 8th Dist.
Cuyahoga No. 102321, 2015-Ohio-4075, ¶ 10 (“Balbi next argues that consecutive
sentences were unnecessary to protect the public because he will be deported after
serving his prison sentence. Assuming the certainty of Balbi’s deportation, it is not a valid
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reason to find that it supersedes the state’s interest in punishing him and that he will not
resume his activity elsewhere.”). Finally, the trial court certainly could have concluded
based on the victim-impact statements that the harm caused by Bautista’s offenses was
so great or unusual that no single prison term adequately would reflect the seriousness
of his conduct.
{¶ 13} For the reasons set forth above, we overrule the assignment of error and
affirm the judgment of the Clark County Common Pleas Court.
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FAIN, J., and FROELICH, J., concur.
Copies mailed to:
Megan M. Farley
Brent E. Rambo
Hon. Douglas M. Rastatter
State v. Bautista
Combined Opinion