State v. Maggette

[Cite as State v. Maggette, 2016-Ohio-5554.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 13-16-06

v.

DEANDRE T. MAGGETTE, OPINION

DEFENDANT-APPELLANT.

Appeal from Seneca County Common Pleas Court
Trial Court No. 15-CR-0236

Judgment Affirmed

Date of Decision: August 29, 2016

APPEARANCES:

James W. Fruth for Appellant

Angela M. Boes for Appellee
Case No. 13-16-06

SHAW, P.J.

{¶1} Defendant-appellant, Deandre T. Maggette (“Maggette”), appeals the

February 10, 2016 judgment entry of sentence journalizing his conviction by a jury

for one count of unlawful sexual conduct with a minor, in violation of R.C.

2907.04(A),(B)(3), a felony of the third degree, and one count of sexual imposition,

in violation of R.C. 2907.06(A)(4),(C), a misdemeanor of the third degree. The trial

court sentenced Maggette to the maximum penalty of sixty months in prison for his

conviction of unlawful sexual conduct with a minor and ordered him to comply with

the registration requirements for a Tier II sex offender. As for his conviction of

sexual imposition, the trial court imposed a sixty-day jail term to be served

concurrent to the sixty-month prison term and ordered Maggette to comply with the

registration requirements for a Tier I sex offender. On appeal, Maggette contends

his convictions were based upon insufficient evidence and challenges the

appropriateness of his sentence.

Statement of the Case

{¶2} On November 10, 2015, the Seneca County Grand Jury indicted

Maggette on Count One, unlawful sexual conduct with a minor. This charge

stemmed from allegations that over the course of several months Maggette engaged

in sexual conduct with M.F., the half-sister of his then seventeen-year-old girlfriend,

B.G. Maggette was renting a room at the home of M.F.’s parents, B.G.’s father and

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step-mother. M.F. was thirteen years-old and Maggette was thirty-six-years old

when the alleged sexual conduct began. The indictment also alleged Count Two,

sexual imposition, which arose from a claim that, contemporaneous to the beginning

of his sexual conduct with M.F., Maggette had put his hand down the pants of B.G.’s

other half-sister, C.C., and placed his hand on her bare buttock. C.C. was fourteen-

years-old at the time of the incident. Maggette was subsequently arraigned and

pleaded not guilty to the charges.

{¶3} On February 1, 2016, the case proceeded to a jury trial. Several

witnesses testified for the prosecution, including both victims, M.F. and C.C., the

SANE nurse who examined M.F., administered a sexual assault kit, and collected

M.F.’s DNA standard, and the scientists from BCI who tested M.F.’s vaginal swabs

collected during the SANE exam and concluded Maggette’s DNA could not be

excluded from the sample. After the presentation of the prosecution’s witnesses

both the State and the defense rested. The jury returned a guilty verdict on both

counts.

{¶4} On February 9, 2016, Maggette appeared for sentencing. The trial court

sentenced Maggette to a sixty-month prison term on Count One, unlawful sexual

conduct with a minor, and a sixty-day jail term on Count Two, sexual imposition,

with the terms of incarceration to run concurrent. Based upon the convictions,

Maggette was also classified as a Tier I and a Tier II sexual offender.

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{¶5} Maggette filed this appeal, asserting the following assignments of error.

ASSIGNMENT OF ERROR NO. I

THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE
VERDICT THAT APPELLANT COMMITTED THE
OFFENSES OF UNLAWFUL SEXUAL CONDUCT WITH A
MINOR AND SEXUAL IMPOSITION.

ASSIGNMENT OF ERROR NO. II

THE TRIAL COURT’S [SIC] ERRED AND ABUSED IT’S [SIC]
DISCRETION IN IMPOSING UPON APPELLANT A
MAXIMUM SENTENCE BECAUSE THE COURT DID NOT
COMPLY WITH THE MANDATORY REQUIREMENTS OF
CRIM.R. 32(A).

ASSIGNMENT OF ERROR NO. III

THE TRIAL COURT ERRED WHEN IT SENTENCED
APPELLANT TO THE MAXIMUM TERM FOR
INCARCERATION FOR SEXUAL IMPOSITION BECAUSE
APPELLANT DID NOT COMMIT THE WORST FORM OF
THE OFFENSE.

First Assignment of Error

{¶6} In his first assignment of error, Maggette argues that there was

insufficient evidence presented to convict him of unlawful sexual conduct with a

minor and sexual imposition. Specifically, Maggette argues with regard to the

unlawful sexual conduct with a minor offense that “[o]ther than the testimony of the

14 year old, [M.F.], there was no other direct evidence to demonstrate how semen

from Appellant Maggette appeared in the SANE nurse’s examination kit.” (Appt.

Brief at 10). As for the sexual imposition offense, he argues that “there was no

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direct or testimonial evidence that either [C.C.] or Appellant Maggette were

sexually gratified in any manner by the conduct alleged at trial.” (Id. at 9).

Standard of Review

{¶7} Whether there is legally sufficient evidence to sustain a verdict is a

question of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). Sufficiency is

a test of adequacy. Id. When an appellate court reviews a record upon a sufficiency

challenge, “ ‘the 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.

Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, ¶ 77, quoting State v. Jenks, 61 Ohio

St.3d 259 (1991), paragraph two of the syllabus.

Unlawful Sexual Conduct with a Minor

{¶8} In Count One, Maggette was charged with unlawful sexual conduct

with a minor, in violation of R.C. 2907.04(A), (B)(3) which states:

(A) No person who is eighteen years of age or older shall engage
in sexual conduct with another, who is not the spouse of the
offender, when the offender knows the other person is thirteen
years of age or older but less than sixteen years of age, or the
offender is reckless in that regard.

***

(B)(3) * * * if the offender is ten or more years older than the other
person, unlawful sexual conduct with a minor is a felony of the
third degree.

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{¶9} The State presented the following evidence in its case-in-chief to

establish the essential elements of the crime. Cristen F., M.F.’s mother, testified

that Maggette had been living in her home in Tiffin since April of 2015. She

explained that at the time Maggette was the boyfriend of her seventeen-year-old

step-daughter, B.G., who stayed in the home on the weekends. Per their

arrangement, Maggette rented B.G.’s room at the home for $150.00 per month.

Cristen claimed that she had known Maggette for over a year as B.G.’s boyfriend

and initially thought he was twenty-two years old. She later learned that he was in

fact in his mid-thirties.

{¶10} On October 31, 2015, at approximately 7:00 p.m., Cristen walked

passed Maggette’s room and observed him sitting on his bed “passionately kissing”

M.F., her fourteen-year-old daughter. (Tr. at 134). Cristen confronted Maggette

who initially denied engaging in any sexual conduct with M.F. However, M.F. led

her mother into the bathroom away from Maggette, who at the time was attempting

to fight his way into the bathroom and became involved in a “shoving match” with

Cristen. (Id. at 136). Cristen and her husband were able to keep Maggette at bay

and close the bathroom door. M.F. then revealed to her mother that Maggette had

been having sexual intercourse with her in the home for several months.

{¶11} After M.F.’s disclosure, Maggette admitted to Cristen that he had been

engaging in sexual conduct with M.F and asked Cristen if M.F. could begin sleeping

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in his bed. Maggette explained to her that he wanted to continue his sexual

relationship with M.F. and was no longer interested in dating B.G. (Trans. at 137).

Cristen testified that once she obtained an admission from Maggette, she called the

Tiffin Police Department. Law enforcement arrived at the home and questioned

Maggette and members of the household. Cristen and M.F. were taken to the Toledo

Hospital where M.F. was examined by a SANE nurse and a sexual assault kit was

completed.

{¶12} M.F. also provided testimony for the prosecution. M.F. recalled

Maggette moving into the home in April of 2015 and stated that the sexual conduct

began about a month later. She testified that she was thirteen-years-old at the time.

She explained that Maggette knew her age because he was aware that she attended

middle school and occasionally woke her up for school. He also was present at her

birthday party in September where she had a cake with number “14” on it.

{¶13} M.F. described Maggette initiating the physical relationship which

involved daily instances of sexual intercourse, including vaginal intercourse, oral

sex, and anal sex. M.F. claimed in the beginning she told Maggette to “stop,” but

he did not listen to her so she just “let it go.” (Trans. at 226). She testified that

Maggette had sex with her once or twice a day. She explained that the sex occurred

mostly at night when the other members of the household were asleep and took place

in her room, in Maggette’s room, in the bathroom, and on the back porch. M.F.

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stated that in the beginning of the relationship Maggette used a condom, but ceased

to do so because he wanted to get her pregnant. (Trans. at 170). She recalled him

ejaculating inside her on almost every occasion while engaging the three different

types of intercourse. Even when Maggette moved out of the home for a brief period

of time, he snuck back to the house at night to continue to have sex with M.F.

{¶14} M.F. recalled Maggette confronting her on October 31, 2015, after she

disclosed their sexual relationship to her mother and her mother went downstairs to

discuss the matter with her father. According to M.F., she and Maggette were

upstairs in his room. Maggette locked the door and asked M.F. to repeat what she

had said to her mother. Maggette became angry upon learning of M.F.’s disclosure

and attempted to have sex with her again. M.F. managed to push Maggette to the

floor and left the room.

{¶15} M.F. explained that she and Maggette last had sex in the bathroom on

the sink the night before her parents discovered their relationship. She recalled that

Maggette did not wear a condom and that he ejaculated inside her vagina.

Afterwards, M.F. put on a pair of pants without underwear, which she claimed were

stained with Maggette’s semen. When law enforcement arrived the next day to

investigate the allegations, M.F. showed them the pants with a visible white stain in

the crotch area. She also informed law enforcement that she had not bathed since

she and Maggette last had sexual intercourse on the bathroom sink the night before.

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{¶16} The prosecution also presented the testimony of multiple law

enforcement officers to relay the evidence collected during interviews with

witnesses and from the investigation at the scene—i.e., the execution of search

warrants which allowed law enforcement to obtain a DNA standard from Maggette,

to take photographs of the places in the home where the sexual conduct was alleged

to have occurred, and to gather clothing and other items which may contain DNA

from M.F. and Maggette. As part of the investigation, M.F. was also the subject of

an exam performed by a sexual assault nurse examiner or “SANE.” During the

exam, the SANE obtained M.F.’s account of the last sexual encounter on the

bathroom sink and an overview of the sexual relationship between Maggette and

M.F. Other than observing a suction injury or “hickey” on M.F.’s breast, the SANE

did not note any other significant injury on M.F.’s body. However, the SANE

testified that M.F.’s account of her sexual relationship with Maggette “was

consistent with the exam [she] performed.” (Trans. at 329-30).

{¶17} The SANE also completed a sexual assault kit, which involved the

collection of vaginal swabs from M.F. The vaginal swabs were transported to the

Bureau of Criminal Investigation or “BCI” for forensic testing. The prosecution

called the two forensic scientists from BCI who handled the testing of the vaginal

swabs to establish the chain of custody and the procedures used to identify the DNA

found on the swabs. The scientists also obtained from law enforcement a DNA

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standard from M.F. and Maggette for comparison purposes. According to the

testimony, sperm was identified on the vaginal swab obtained from M.F. during the

SANE examination. It was explained at trial that semen can persist in the vagina

anywhere from 72 to 96 hours. (Trans. at 344).

{¶18} The semen found on the vaginal swab was compared to the DNA

standard obtained from Maggette. The DNA analyst testified that “[t]he DNA

profile obtained from the vaginal samples was a mixture. [M.F.] was included in

that mixture, so she cannot be excluded as one of the contributors. And Deandre

Maggette is also included in that mixture of DNA profiles.” (Trans. at 361).1

{¶19} On appeal, Maggette claims the trial court erred in overruling his

Crim.R. 29 motion for acquittal on the basis that there was insufficient evidence to

demonstrate that his semen found on M.F.’s vaginal sample was the result of him

engaging in sexual intercourse with her. In other words, Maggette suggests that his

semen was extracted from another source and purposely placed in M.F.’s vagina to

give the appearance that he had sex with her. This is consistent with the line of

questioning utilized by Maggette’s defense counsel during cross-examination of the

medical and scientific witnesses at trial alluding to the possibility of a turkey baster

1
The DNA analyst explained the significance of this finding “is that Deandre Maggette cannot be excluded
as a contributor to the DNA profile from the vaginal samples.” (Trans. at 361). This witness further testified
to the correlative statistic included in her report of one in 5,105,000,000,000,000 unrelated individuals, which
“means that [she] would have to test that many people before [she] would find one person with a DNA profile
that was similar to this in this case. This is a couple times the world’s population.” (Id.).

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being used to extract Maggette’s semen from a condom and to place it inside M.F.’s

vagina. Notwithstanding the fact that M.F.’s testimony alone, if believed by the

trier of fact, clearly establishes the origin of Maggette’s semen in her vagina, there

is nothing in the record to support Maggette’s hypothesis of an alternate source

and/or method of introduction of his semen into M.F.’s vagina. Moreover, such a

consideration invokes a weight of the evidence rather than a sufficiency

determination which remained in the hands of the trier of fact.

{¶20} Accordingly, we are not persuaded by Maggette’s argument on appeal

that M.F.’s testimony and his semen found on M.F. vaginal swab were insufficient

to establish that he engaged in sexual conduct with M.F. After viewing the evidence

in a light most favorable to the prosecution, we find that any rational trier of fact

could have found the essential elements of unlawful sexual conduct with a minor

proven beyond a reasonable doubt.

Sexual Imposition

{¶21} Maggette also argues that there was insufficient evidence presented to

support his conviction for sexual imposition. In Count Two, Maggette was charged

with sexual imposition, in violation of R.C. 2907.06(A)(4), which states:

(A) No person shall have sexual contact with another, not the
spouse of the offender; cause another, not the spouse of the
offender, to have sexual contact with the offender; or cause two
or more other persons to have sexual contact when any of the
following applies:

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***

(4) The other person, or one of the other persons, is thirteen years
of age or older but less than sixteen years of age, whether or not
the offender knows the age of such person, and the offender is at
least eighteen years of age and four or more years older than such
other person.

{¶22} At trial, the prosecution presented the testimony of C.C. to establish

the essential elements of the sexual imposition charge. C.C. explained she became

acquainted with Maggette through B.G., her half-sister.2 As previously mentioned,

Maggette was B.G.’s boyfriend. On April 9, 2015, Maggette was staying with B.G.

at her mother’s home in Fostoria. C.C., who was fourteen-years-old at the time,

also resided in the home. C.C. claimed Maggette knew her age because B.G. told

him and he also knew she attended high school. C.C. recalled Maggette

approaching her and informing her of his intentions to sleep in her bedroom that

night. B.G. was occupied in the bathroom styling her hair when this exchange

occurred. According to C.C., Maggette had asked to sleep in her bed on numerous

occasions.

{¶23} On this occasion, C.C. again refuted Maggette’s advances, walked into

her bedroom, and sat on her bed. Maggette followed C.C., “flopped” down on her

bed, and began touching her side. (Trans. at 295). C.C. testified that Maggette then

stuck his hand down her pants inside her underwear and touched her bare buttock

2
C.C. is B.G.’s half-sister on B.G.’s mother’s side and M.F. is B.G.’s half-sister on her father’s side.

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on the right side. C.C. explained that she felt uncomfortable and immediately got

up to tell her mother what had happened. C.C.’s mother confronted Maggette and

told him to leave the home. C.C.’s step-father reported the incident to law

enforcement. Maggette subsequently moved into B.G.’s father’s home in Tiffin

where M.F. resided.

{¶24} On appeal, Maggette disputes the sufficiency of the evidence

presented by the prosecution to establish sexual contact. Section 2907.01(B) of the

Revised Code defines “sexual contact” to mean “any touching of an erogenous zone

of another, including without limitation the thigh, genitals, buttock, pubic region,

or, if the person is a female, a breast, for the purpose of sexually arousing or

gratifying either person.” Maggette argues that the “evidence adduced at trial did

not show that any of the brief touching was for a sexual purpose or to elicit a sexual

response or to fulfill either [C.C.] or Appellant Maggette sexually.” (Appt. Brief at

9). However, as it has been previously explained, “in the absence of direct

testimony regarding sexual arousal or gratification, the trier of fact may infer a

purpose of sexual arousal or gratification from the ‘type, nature and circumstances

of the contact, along with the personality of the defendant.’ ” State v. Haskell,

quoting State v. Cobb, 81 Ohio App.3d 179, 185 (9th Dist.1991).

{¶25} Here, C.C. testified that Maggette repeatedly asked to sleep in her bed,

which she refused. She testified that during the incident in question she again

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refused to allow him to sleep in her bed, but Maggette followed her into her

bedroom, laid on her bed and began caressing her side. C.C. further testified that

he then stuck his hand down her pants inside her underwear and touched her bare

buttock. She explained feeling immediately uncomfortable with Maggette’s

conduct and that no one else was present when Maggette touched her in this manner.

Notwithstanding the fact that it is difficult to imagine any purpose for Maggette

placing his hand down C.C.’s underwear and touching her bare buttock other than

for the purpose of sexual arousal or gratification, the trier of fact was free to believe

or disbelieve any or all of C.C.’s testimony and to make reasonable inferences from

that testimony as to the purpose of Maggette’s contact.

{¶26} After viewing this evidence in a light most favorable to the

prosecution, we conclude that the trial court could have reasonably inferred that

Maggette touched C.C. for the purpose of sexually arousing or gratifying either

himself or C.C. Therefore, the trial court did not err in finding that the State met its

burden of proving the essential elements of sexual imposition beyond a reasonable

doubt. For all these reasons, we conclude the trial court did not err in

overruling Maggette’s Crim.R. 29 motion for acquittal on the basis of insufficient

evidence. Maggette’s first assignment of error is overruled.

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Second and Third Assignments of Error

{¶27} We elect to address these assignments of error together due to the fact

that the arguments and considerations raised therein are intertwined.

{¶28} Maggette claims that the trial court failed to make adequate findings

in imposing his sentence consistent with Crim.R. 32(A)(4). Specifically, Maggette

argues that the trial court did not engage in the proper analysis or give sufficient

reasons to support the imposition of the sentence. Criminal Rule 32(A) states, in

relevant part:

Sentence shall be imposed without unnecessary delay. Pending
sentence, the court may commit the defendant or continue or alter
the bail. At the time of imposing sentence, the court shall do all
of the following:

***

(4) In serious offenses, state its statutory findings and give
reasons supporting those findings, if appropriate.

{¶29} It is well-established that the statutes governing felony sentencing no

longer require the trial court to make certain findings before imposing a maximum

sentence. See e.g., State v. Dixon, 2d Dist. Clark No. 2015-CA-67, 2016-Ohio-

2882, ¶ 14 (“Unlike consecutive sentences, the trial court was not required to make

any particular “findings” to justify maximum prison sentences.”); State v. Hinton,

8th Dist. Cuyahoga No. 102710; 2015-Ohio-4907, ¶ 9 (The law no longer requires

the trial court to make certain findings before imposing a maximum sentence).

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{¶30} Rather the pertinent inquiry in this instance is whether the trial court’s

imposition of maximum sentences on both counts is contrary to law. State v.

Barrera, 3d Dist. Putnam No. 12-12-01, 2012-Ohio-3196, ¶ 20 (“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 or otherwise

contrary to law.”). A sentence is contrary to law if (1) the sentence falls outside the

statutory range for the particular degree of offense, or (2) the trial court failed to

consider the purposes and principles of felony sentencing set forth in R.C. 2929.11

and the sentencing factors set forth in R.C. 2929.12. State v. Caraballo, 8th Dist.

Cuyahoga No. 100354, 2014-Ohio-2641, ¶ 6–7.

{¶31} Trial courts have full discretion to impose any sentence within the

statutory range. State v. Saldana, 3d Dist. Putnam No. 12-12-09, 2013-Ohio-1122,

¶ 20. Maggette was convicted of a violation of R.C. 2907.04(A),(B)(3), a felony of

third degree, and of a violation of R.C. 2907.06(A)(4),(C), a third degree

misdemeanor. The relevant prison sentence range for the unlawful sexual conduct

with a minor offense is between twelve and sixty months. R.C. 2929.14(A)(3). The

relevant jail term for the sexual imposition offense is “not more than sixty days.”

R.C. 2929.24(A)(3). The trial court’s sentences for both counts clearly fall within

the statutory range. Therefore, a sentence imposed within the statutory range is

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“presumptively valid” if the court considered applicable sentencing factors. State

v. Collier, 8th Dist. Cuyahoga No. 95572, 2011-Ohio-2791, ¶ 15,

{¶32} Although the trial court must consider the purposes and principles of

felony sentencing set forth in R.C. 2929.11 and the sentencing factors listed in R.C.

2929.12, the sentencing court is not required to “state on the record that it considered

the statutory criteria or discuss[ed] them.” State v. Polick, 101 Ohio App.3d 428,

431 (4th Dist.1995). A trial court’s statement that it considered the required

statutory factors, without more, is sufficient to fulfill its obligations under the

sentencing statutes. State v. Abrams, 8th Dist. Cuyahoga No. 103786, 2016-Ohio-

4570, citing State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, ¶ 18.

{¶33} Here, the trial court stated the following in its sentencing entry

pronouncing Maggette’s sentence: “Defendant was afforded all rights pursuant to

Criminal R. 32. The Court has considered the record, oral statements, victim impact

statement, as well as the principles and purposes of felony sentencing under Ohio

Revised Code Section 2929.11, and has balanced the seriousness and recidivism

factors [under] Ohio Revised Code Section 2929.12. The Court has also considered

the overriding purposes of misdemeanor sentencing under Ohio Revised Code

2929.21 and has reviewed the considerations under Revised Code Section 2929.22.”

(Doc. No. 31 at 1-2).

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{¶34} Maggette further claims in his third assignment of error that his sixty-

day jail term for sexual imposition is contrary to law because the record fails to

establish that his conduct is the “worst form of the offense” and the trial court failed

to make a specific finding to that effect. Section 2929.22(C) of the Revised Code

states: “Before imposing a jail term as a sentence for a misdemeanor, a court shall

consider the appropriateness of imposing a community control sanction or a

combination of community control sanctions under sections 2929.25, 2929.26,

2929.27, and 2929.28 of the Revised Code. A court may impose the longest jail

term authorized under section 2929.24 of the Revised Code only upon offenders

who commit the worst forms of the offense or upon offenders whose conduct and

response to prior sanctions for prior offenses demonstrate that the imposition of the

longest jail term is necessary to deter the offender from committing a future crime.”

{¶35} Initially, we note that “[t]here is no requirement that a trial court

specifically state its reasons on the record when sentencing on misdemeanor

offenses.” State v. Dexer Townsend, 5th Dist. Delaware No. 09-CAA-11-0096;

2010-Ohio-4417, ¶ 26. Nevertheless, we conclude that the record supports the trial

court’s imposition of the maximum sentence. Maggette had a prior criminal record

in other jurisdictions beginning in 1998 consisting of several felonies some of which

involved firearms and included aggravated assault, Domestic Battery and violations

of protections orders. Moreover, the facts before the trial court in this case

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demonstrated that Maggette preyed upon two young teenagers both of whom he

knew to be more than twenty-two years his junior, and that when given the

opportunity his conduct with the victims escalated from unwanted sexual touching

to engaging in an extensive sexual relationship. Therefore, we do not find that the

trial court erred in determining a maximum sentence on Maggette’s sexual

imposition conviction was warranted.

{¶36} In sum, the record reflects that Maggette’s sentence was within the

permissible statutory range and the judgment entry of sentence indicates that the

trial court properly considered the criteria found in R.C. 2929.11 and R.C. 2929.12

as well as the criteria for misdemeanor sentencing in R.C. 2929.21 and R.C.

2929.22. Since the record establishes that trial court considered all required

sentencing statutes, we conclude the maximum sentences on Maggette’s unlawful

sexual conduct with a minor and sexual impositions charges are not contrary to law.

Accordingly, we overrule Maggette’s second and third assignments of error.

{¶37} Based on the foregoing, the assignments of error are overruled and the

judgment and sentence is affirmed.

Judgment Affirmed

PRESTON and ROGERS, J.J., concur.

/jlr

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