State v. Petty

[Cite as State v. Petty, 2017-Ohio-9200.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

Plaintiff-Appellee, : No. 17AP-385
(C.P.C. No. 14CR-3744)
v. :
(REGULAR CALENDAR)
Mathias D. Petty, :

Defendant-Appellant. :

D E C I S I O N

Rendered on December 21, 2017

On brief: Ron O'Brien, Prosecuting Attorney, and Seth L.
Gilbert, for appellee. Argued: Seth L. Gilbert.

On brief: The Hemminger Law Firm, LLC, and Chad K.
Hemminger, for appellant. Argued: Chad K. Hemminger.

APPEAL from the Franklin County Court of Common Pleas

BROWN, J.
{¶ 1} This is an appeal by defendant-appellant, Mathias D. Petty, from a
judgment of the Franklin County Court of Common Pleas resentencing him pursuant to a
remand order from this court regarding consecutive sentence findings.
{¶ 2} On July 16, 2014, appellant was indicted on one count of rape, in violation
of R.C. 2907.02, and one count of importuning, in violation of R.C. 2907.07(A). The rape
count included a repeat violent offender specification.
{¶ 3} The following background facts are taken from this court's decision in State
v. Petty, 10th Dist. No. 15AP-950, 2017-Ohio-1062, rendered following appellant's direct
appeal of his judgment of conviction and sentence for rape and importuning. At trial,
No. 17AP-385 2

C.A., a female, who was age 12 at the time of the events, testified that on June 10, 2014,
she began using an app called "the Badoo app." Id. at ¶ 3. The app is "use[d] * * * 'to meet
people,' [and a] user is supposed to be 18 or older." Id.
{¶ 4} In July 2014, "C.A. began communicating through the Badoo app with a
particular individual whose screen name was 'T-h-a-i,' " and "[t]hey began talking about
'[g]iving head, sex, stuff that shouldn't have been talking about.' " Id. at ¶ 4. C.A. did not
disclose her age to this individual, and C.A. "did not know the age of the other individual."
Id. According to C.A., "Thai first brought up the topic of oral sex on the app." Id.
{¶ 5} On July 5, 2014, C.A. and her mother were at C.A.'s aunt's house. That
evening, C.A. and Thai had been exchanging text messages. Later that night, C.A. went
outside on the porch because the individual texting her wanted to " 'come over, and [she]
said okay.' " Id. at ¶ 6. The individual was asking C.A. for her address, and C.A. testified:
"[h]e was asking me if I was going to do it then. I needed to do it, and if I wasn't, then he
doesn't have to come.' " Id. C.A. "defined 'it' as he wanted her to [p]erform oral sex." Id.
{¶ 6} At trial, C.A. identified appellant as Thai, the individual who arrived at her
aunt's house that evening. Thai arrived and walked up to the porch. C.A. was texting at
the time, and Thai "said, '[y]ou look pretty occupied, and I said okay. * * * Then he said,
[i]f you're not going to do it, I can just leave. * * * I said okay, and I stopped texting. * * *
He asked me if he wanted to - - if I was going to pull it out or if he was.' " Id. at ¶ 7.
{¶ 7} C.A. testified that appellant "unzipped his pants. 'He took it out, and I got
down on my knees, and I started sucking - - I started giving oral sex.' " Id. at ¶ 8. C.A.
testified that she "put appellant's penis in her mouth. Appellant 'was moving my head'
with his hand." Id.
{¶ 8} C.A.'s mother then came out on the porch "and 'started yelling.' Her
mother 'was cussing a lot.' " Id. at ¶ 9. C.A. "stood up and her mother 'asked what * * *
did I just do, and I said, [n]othing. I wouldn't tell her the truth. And then she started
getting louder, and then that's when everybody in the kitchen came outside.' " Id. C.A.
testified appellant appeared to be "cornered" on the porch as other members of the family
came outside, but appellant "then jumped over the banister, and he ran to his car across
the street and drove away." Id. at ¶ 10.
No. 17AP-385 3

{¶ 9} C.A. initially told the responding officer that nothing occurred. C.A. "did
not tell the truth because she did not want to deal with the consequences." Id. at ¶ 11.
Later, at the hospital, she told a detective what happened. The detective showed her a
photographic array, and C.A. picked appellant's photograph from the array and identified
him as the individual who appeared on the porch that evening.
{¶ 10} On July 5, 2014, Columbus Police Officer David Schulz responded to a
dispatch regarding a reported sexual assault of a minor. Officer Schulz spoke with C.A.'s
mother, L.A., "who was 'frustrated, upset, and just distraught all around.' " Id. at ¶ 13.
L.A. gave the officer her daughter's phone, and the officer was able to view some messages
and "learned that the daughter had used a message service through an app identified as
'Badoo.' " Id. at ¶ 14. A family friend "provided the name of suspect Mathias Petty by
linking the Badoo account to a linked Instagram account to a linked Facebook account."
Id. at ¶ 16.
{¶ 11} L.A. testified her daughter C.A. was 12 years of age in July 2014. On the
evening of the incident, L.A. looked out the front door to check on her daughter, and she
observed her daughter " 'kneeled down on her knees. There was a comforter under her
knees, and * * * a person standing in front of her holding something in his hand.' " Id. at ¶
20. L.A. "observed 'my daughter performing oral sex on him.' " Id. L.A. "saw his penis,
and observed appellant zip up his pants." Id.
{¶ 12} L.A. "opened the door and yelled at appellant. As she walked outside,
appellant backed up against the banister and zipped up his pants." Id. at ¶ 21. L.A.
attempted to position herself near the stairs to prevent him from leaving, but appellant
"vaulted over the banister and ran to a car parked across the street." Id.
{¶ 13} Inside the house, C.A. initially "denied everything, but eventually told L.A.
what happened." Id. at ¶ 22. L.A. phoned police and took C.A. to Nationwide Children's
Hospital ("Children's Hospital"); L.A. spoke with detectives at the hospital. Officers
showed L.A. a photo array, and she picked out an individual from the array. Some of
L.A.'s family members were able to utilize the app and obtain the identity of the
individual; they gave the name to a police officer that evening, and showed the officer text
messages from C.A.'s phone. At trial, L.A. identified appellant as the male she observed
on the porch that evening.
No. 17AP-385 4

{¶ 14} On July 6, 2014, Lauren Moore, a social worker at Children's Hospital,
interviewed C.A. During the interview, "C.A. told Moore that she put his 'thing' in her
mouth, later clarified as his penis, and C.A. started 'sucking on - - sucking it.' " Id. at ¶ 24.
{¶ 15} Appellant, who testified on his own behalf, stated he started using the
Badoo app "for dating. I was on there for hooking up." Id. at ¶ 29. He acknowledged
messaging back and forth on the app with C.A. Appellant testified that "[a]t first, the
conversations were '[j]ust being flirty [a]nd it did lead to sexual conversations a lot.' " Id.
at ¶ 30. Appellant denied knowing C.A. was 12 years of age. At one point, C.A. asked
appellant " 'Do you want to hook up?' " Id. at ¶ 30. Appellant asked what she meant and,
"[a]ccording to appellant, C.A. responded: '[a]re you trying to fuck or not? And I
responded with, like, I don't really just jump into sex, but, like, I'm down to explore other
things. I'm down to do other things. And I meant, like, sexually, but not intercourse.' "
Id.
{¶ 16} Appellant testified that on July 5, 2015, C.A. gave him an address and
invited him to " 'come over.' " Id. at ¶ 31. Appellant believed they were going to watch
television and " 'that we would have had some form of * * * physicality during that.' " Id.
{¶ 17} Appellant testified that when he walked up to the porch, C.A. was sitting in a
chair looking at her phone. Appellant stated that C.A. "got, like, cute and flirty with me,
and she was like, [d]o you want me to do it?" Id. at ¶ 34. C.A. then "slid down from the
chair onto the ground." Id. C.A. grabbed appellant's right front jeans pocket. Appellant
asked if she was going to invite him inside. Appellant testified C.A. stated "[w]hat's wrong
with right here? We're alone." Id.
{¶ 18} According to appellant, C.A. was pulling on his jeans pocket while he was
holding up his belt; at that moment, "an older woman, that I now know as [L.A.], comes
out of the house and is like, [w]hat the fuck are you doing? You know, and she looks at
me, and I'm like, [i]s there some kind of a problem? I said, [i]f there is, I don't want any
trouble. If there's an issue, I can just leave." Id. at ¶ 35. The woman approached
appellant and grabbed his "torso," but he was able to get away from her grasp and jump
over the porch banister and go to his car. Id.
{¶ 19} During direct examination, when questioned whether he asked C.A. to
perform oral sex, appellant "stated: '[n]o, I didn't. We had talked about it over the phone.
No. 17AP-385 5

I don't know if I could say that it happened that day.' " Id. at ¶ 37. Appellant also "denied
that his penis was ever exposed," and he stated that "C.A. 'was lying' about performing
oral sex on him." Id.
{¶ 20} Appellant acknowledged that he was convicted of a robbery offense when he
was 16 years of age, and was tried as an adult. Appellant "pled guilty to that and received
a four-year sentence in prison for robbery." Id. at ¶ 38.
{¶ 21} On cross-examination, appellant testified that he was 24 years of age, and
that he was previously convicted of robbery with a weapon. He acknowledged that the
Badoo app was "used primarily for individuals to meet and engage in sexual activity." Id.
at ¶ 39. When questioned about what messages he sent to C.A., "appellant testified: 'I
probably couldn't recall anything exactly, but I definitely was talking about how I would
love to, you know, get head from her and that I would love to touch her, I would love to be
inside her, things like that.' " Id. He also "acknowledged talking to C.A. about oral sex
'that day.' " Id. When asked if he solicited C.A. for oral sex, "appellant responded: 'I would
say yes.' " Id.
{¶ 22} Following deliberations, the jury returned verdicts finding appellant guilty
of rape and importuning. The trial court separately found appellant guilty of the repeat
violent offender ("RVO") specification. The court sentenced appellant to an indefinite
term of 10 years to life imprisonment for rape, an additional consecutive 3-year term for
the RVO specification, and 24 months for importuning, with the rape and importuning
counts to be served consecutively to each other.
{¶ 23} Appellant timely appealed his conviction, raising four assignments of error.
Specifically, appellant argued that: (1) the trial court erred in overruling his hearsay
objection to a police officer's testimony about the contents of C.A.'s phone messages,
(2) the trial court erred in denying his motion for judgment of acquittal as to the RVO
specification, (3) his convictions were against the manifest weight of the evidence, and
(4) the trial court's aggregated prison sentence was contrary to law. In Petty, this court
overruled appellant's first, second, and third assignments of error.
{¶ 24} With respect to his fourth assignment of error, challenging the trial court's
sentence, this court rejected appellant's contentions the trial court erred by failing to
merge the rape and importuning counts and in sentencing him to a term of 10 years to life
No. 17AP-385 6

on the rape count. We further determined, however, that the trial court failed to make
requisite findings under R.C. 2929.14(C) for the imposition of consecutive sentences.
Thus, while affirming the convictions, this court remanded the matter for the trial court to
consider whether consecutive sentences were appropriate under the statute and, if so, to
make the appropriate findings on the record at the sentencing hearing and to incorporate
those findings into its sentencing entry.
{¶ 25} On April 26, 2017, the trial court conducted a resentencing hearing. On
May 2, 2017, the trial court filed a judgment entry imposing an indefinite term of 10 years
to life imprisonment for count one (rape), and a 24-month sentence for count two
(importuning), as well as an additional 3-year consecutive term of imprisonment for the
RVO specification. The court ordered counts one and two to be served consecutively to
each other, as well as consecutively to appellant's prior sentence in case No. 14CR-1733.1
{¶ 26} On appeal, appellant raises the following assignment of error for this court's
review:
Defendant-Appellant's aggregated prison sentence is clearly
and convincingly contrary to law and/or the product of an
abuse of discretion by the trial court.

{¶ 27} Under his single assignment of error, appellant argues the trial court's
imposition of consecutive sentences was contrary to law and constituted an abuse of
discretion. Appellant contends the trial court failed to consider the statutory factor of
proportionality when it imposed the 24-month sentence for count two (importuning) to
run consecutive to both the rape sentence and the RVO specification. According to
appellant, the trial court erred when it failed to state any findings as to why the imposition
of an additional two years on the importuning charge was necessary and not
disproportionate.
{¶ 28} At the outset, we note appellant's contention that the trial court's imposition
of consecutive sentences constituted an abuse of discretion misstates the applicable
standard of review. An appellate court reviews a sentence imposed by a trial court "under
the standard of review set forth in R.C. 2953.08(G)(2), which governs all felony

1 In Franklin C.P. No. 14CR-1733, appellant entered a guilty plea and was sentenced on two counts of

aggravated burglary (including a firearm specification attached to one of the counts) and one count of
intimidation of a witness.
No. 17AP-385 7

sentences." State v. Kaaz, 12th Dist. No. CA2016-05-010, 2017-Ohio-5669, ¶ 92, citing
State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1. Pursuant to the provisions of
R.C. 2953.08(G)(2), "an appellate court does not review the sentencing court's decision
for an abuse of discretion." Id., citing Marcum at ¶ 10. Instead, "R.C. 2953.08(G)(2)
compels an appellate court to modify or vacate a sentence only if the appellate court finds
by clear and convincing evidence that 'the record does not support the trial court's
findings under relevant statutes or that the sentence is otherwise contrary to law.' " Id.,
quoting Marcum at ¶ 1.
{¶ 29} Under Ohio law, "[a] sentence is not clearly and convincingly contrary to
law where trial court 'considers the principles and purposes of R.C. 2929.11, as well as the
factors listed in R.C. 2929.12, properly imposes postrelease control, and sentences the
defendant within the permissible statutory range.' " Id. at ¶ 93, quoting State v. Julious,
12th Dist. No. CA2015-12-224, 2016-Ohio-4822, ¶ 8. A trial court's imposition of a
consecutive sentence is contrary to law where the court "fails to make the consecutive
sentencing findings as required by R.C. 2929.14(C)(4)." Id. at ¶ 94, citing State v.
Marshall, 12th Dist. No. CA2013-05-042, 2013-Ohio-5092, ¶ 8.
{¶ 30} R.C. 2929.14(C)(4) states as follows:

If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the
offender to serve the prison terms consecutively 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 also finds any of
the following:

(a) The offender committed one or more of the multiple
offenses while the offender was awaiting trial or sentencing,
was under a sanction imposed pursuant to section 2929.16,
2929.17, or 2929.18 of the Revised Code, or was under post-
release control for a prior offense.

(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
No. 17AP-385 8

offenses committed as part of any of the courses of conduct
adequately reflects the seriousness of the offender's conduct.

(c) The offender's history of criminal conduct demonstrates
that consecutive sentences are necessary to protect the public
from future crime by the offender.

{¶ 31} Thus, the above provisions require a trial court to make three findings
before imposing consecutive sentences: "(1) that consecutive sentences are necessary to
protect the public from the future crime or to punish the offender; (2) 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 (3) that one of the subsections (a), (b), or (c)
apply." State v. Roush, 10th Dist. No. 12AP-201, 2013-Ohio-3162, ¶ 76.
{¶ 32} In State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, syllabus, the
Supreme Court of Ohio held: "In order to impose consecutive terms of imprisonment, a
trial court is required to make the findings mandated by R.C. 2929.14(C)(4) at the
sentencing hearing and incorporate its findings into its sentencing entry, but it has no
obligation to state reasons to support its findings." Further, "a word-for-word recitation
of the language of the statute is not required, and as long as the reviewing court can
discern that the trial court engaged in the correct analysis and can determine that the
record contains evidence to support the findings, consecutive sentences should be
upheld." Id. at ¶ 29.
{¶ 33} At the resentencing hearing in this case, the trial court stated in part the
following:
This Court finds that consecutive sentences are necessary to
protect the public from future crime and to punish the
offender.

Consecutive sentences are not disproportionate to the
seriousness of the offender's conduct and to the danger the
offender poses to the public, finding that the Defendant, Mr.
Petty, was out on bond in Case No. 1733 when the offense in
3744 occurred.

The Court also notes that the harm caused by these multiple
offenses, the rape and the importuning, was so great or
unusual that no single prison term for any of the offenses
No. 17AP-385 9

committed as part of a single course of conduct adequately
reflects the seriousness of Mr. Petty's conduct.

Finally, the Court notes, in support of its decision to impose
consecutive sentences on these two counts, that the offender's
history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future
crime by the offender, noting Mr. Petty's prior conviction for
aggravated robbery, as a felony of the first degree.

In support of these consecutive sentences, specifically the
Court notes the Defendant's prior conviction for aggravated
robbery; that he failed to respond favorably in the past to a
sanction imposed for criminal convictions; and that the injury
to the victim in 3744 of both crimes, separate crimes, which
required separate animus and are complete crimes in and of
themselves, those injuries were serious, psychological injuries.

(Apr. 26, 2017 Tr. at 16-17.)

{¶ 34} On review, the record indicates the trial court engaged in the proper
analysis regarding the issue of proportionality. As set forth above, the trial court
specifically found that "[c]onsecutive sentences are not disproportionate to the
seriousness of the offender's conduct and to the danger the offender poses to the public,
finding that the Defendant, Mr. Petty, was out on bond in Case No. 1733 when the offense
in 3744 occurred." (Apr. 26, 2017 Tr. at 16.) In addition to finding that consecutive
sentences were necessary to protect the public from future crime and to punish the
offender, and that consecutive sentences were not disproportionate to the seriousness of
the offender's conduct and to the danger he posed to the public, the trial court also made
the third requisite finding as to whether at least one of the factors under R.C.
2929.14(C)(4), subsection (a), (b) or (c), was applicable.
{¶ 35} As noted by plaintiff-appellee, State of Ohio, the trial court made findings as
to the applicability of all three of the factors listed under those subsections. Specifically,
the trial court found (pursuant to R.C. 2929.14(C)(4)(a)) that appellant "was out on bond
in Case No. 1733 when the offense in 3744 occurred"; further, the court found (pursuant
to R.C. 2929.14(C)(4)(b)) "the harm caused by these multiple offenses, the rape and the
importuning, was so great or unusual that no single prison term for any of the offenses
committed as part of a single course of conduct adequately reflects the seriousness of Mr.
No. 17AP-385 10

Petty's conduct," and that (pursuant to R.C. 2929.14(C)(4)(c)) appellant's "history of
criminal conduct demonstrates that consecutive sentences are necessary to protect the
public from further crime by the offender, noting Mr. Petty's prior conviction for
aggravated robbery, as a felony of the first degree." (Apr. 26, 2017 Tr. at 16-17.)
{¶ 36} During the hearing, the trial court also cited appellant's "prior conviction for
aggravated robbery; that he failed to respond favorably in the past to a sanction imposed
for criminal convictions; and that the injury to the victim in 3744 of both crimes, separate
crimes, which required separate animus and are complete crimes in and of themselves,
those injuries were serious, psychological injuries." (Apr. 26, 2017 Tr. at 17.)
{¶ 37} Appellant raises an argument related to the trial court's finding under R.C.
2929.14(C)(4)(b), asserting the trial court should not have imposed consecutive sentences
because, according to appellant, the rape and importuning offenses were "part of the same
course of conduct." Appellant, in essence, raises a merger argument.
{¶ 38} We note that, in his direct appeal, appellant raised a similar argument;
specifically, that the trial court erred in not merging the rape and importuning counts
based on his contention that "since force was not involved, the importuning was a natural
part of the rape because the offenses were committed with the same animus, or a desire
for sex, and the harm from each offense was not separate and identifiable from the harm
of the other offense." Petty at ¶ 72. This court rejected appellant's argument, finding that
the offenses were based on "separate conduct." Id. at ¶ 77. On this point, we determined
that "appellant committed the rape when he engaged in sexual conduct with C.A.," while
"[t]he act of seeking, asking, influencing, inviting, tempting, or pressuring [i.e.,
importuning] was complete before any sexual conduct or sexual contact occurred." Id. at
¶ 78. This court further held that "these two offenses involve separate harms, and,
therefore, are not allied offenses." Id. at ¶ 79. Accordingly, appellant's assertion the trial
court erred in failing to impose concurrent sentences on the basis that the offenses were
part of the same course of conduct is not persuasive.
{¶ 39} Nor do we find persuasive appellant's contention the trial court erred in
failing to consider the fact he was 16 years of age at the time of the offense giving rise to
the RVO specification. As noted by the state, appellant was bound over to the adult court
(in 2008) prior to being convicted of aggravated robbery with a firearm specification.
No. 17AP-385 11

{¶ 40} A review of the record in this case indicates the trial court made the
requisite findings under R.C. 2929.14(C)(4), and we note the trial court incorporated its
findings into the post-remand judgment entry. Further, the record does not show clearly
and convincingly that the trial court's findings are unsupported by the record or the
sentence is otherwise contrary to law.
{¶ 41} Based on the foregoing, appellant's single assignment of error is overruled,
and the judgment of the Franklin County Court of Common Pleas is hereby affirmed.
Judgment affirmed.

TYACK, P.J., and LUPER SCHUSTER, J., concur.

_______________________