State v. Moser, Unpublished Decision (1-19-2006)

2006 Ohio 165
CourtOhio Court of Appeals
DecidedJanuary 19, 2006
DocketNo. 05CA39.
StatusUnpublished
Cited by4 cases

This text of 2006 Ohio 165 (State v. Moser, Unpublished Decision (1-19-2006)) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Moser, Unpublished Decision (1-19-2006), 2006 Ohio 165 (Ohio Ct. App. 2006).

Opinions

OPINION
{¶ 1} Defendant-appellant David Moser appeals his conviction and sentence in the Richland County Court of Common Pleas on one count of unlawful sexual conduct with a minor. Plaintiff-appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE
{¶ 2} On September 17, 2004, the Richland County Grand Jury indicted appellant on one count of rape and one count of unlawful sexual conduct with a minor.

{¶ 3} The matter proceeded to jury trial on April 16, 2005. At trial, the evidence established: In May of 2003, appellant lived with Tonya Saylor and her three daughters. Appellant and Tonya Saylor were relatively good friends, and had known each other for years.

{¶ 4} The State presented evidence appellant and Kelsie Saylor, the 12-year old daughter of Tonya Saylor, engaged in sexual intercourse on approximately fifteen occasions between May and June of 2003. Another daughter, Kassie, witnessed appellant and Kelsie holding hands and passionately kissing in the living room of the home.

{¶ 5} Tonya Saylor removed appellant from the home.

{¶ 6} On January 29, 2004, Kelsie failed to attend elementary school. Her cell phone indicated she had called appellant's cell phone to talk to him for several minutes. Kelsie later admitted to having sexual intercourse with appellant on the same day to Deputy Jerry Snay of the Richland County Sheriff's Office.

{¶ 7} Jodie Flynn, a registered nurse at MedCentral Hospital and trained sexual assault nurse examiner, testified she obtained physical evidence from Kelsie of trauma evident in the cervix consistent with trauma caused by a penis in the course of vaginal intercourse. DNA evidence taken indicated the sperm profile was consistent with that of appellant.

{¶ 8} Appellant filed a notice of alibi regarding count two, which related to the January 29, 2004 incident. The notice of alibi alleged appellant was in Florida at the time of the incident. At trial, appellant's brother, his brother's fiancé and two close friends testified he had gone to Florida the first week of January, 2004.

{¶ 9} On April 17, a jury found appellant guilty of unlawful sexual conduct with a minor, and not guilty on the rape charge.

{¶ 10} On April 20, 2005, the trial court sentenced appellant to five years imprisonment, and classified appellant as a sexually oriented offender.

{¶ 11} Appellant now appeals, assigning as error:

{¶ 12} "I. THE TRIAL COURT ERRED IN SENTENCING THE DEFENDANT TO FIVE YEARS IN PRISON FOR A VIOLATION OF OHIO REVISED CODE 2907.04(A)(3), A THIRD DEGREE FELONY, AND SAID SENTENCE WAS IN VIOLATION OF OHIO REVISED CODE SECTION 2929.14(C) AND WAS ERROR IN SENTENCING THE DEFENDANT ABOVE THE ONE YEAR MINIMUM REQUIRED BY OHIO REVISED CODE SECTION 2929.14(B) AND (C).

{¶ 13} "II. THE TRIAL COURT ERRED IN SENTENCING THE DEFENDANT TO FIVE YEARS IN PRISON FOR A VIOLATION OF OHIO REVISED CODE 2907.04(A)(3), A THIRD DEGREE FELONY, AND SAID SENTENCE VIOLATED THE DEFENDANT'S RIGHT TO A JURY TRIAL ON THE ISSUES FOUND BY THE TRIAL COURT, UNDER BLAKELY V. WASHINGTON, UNITED STATES CONSTITUTION. SIXTH AMENDMENT, AND OHIO REVISED CODE2929.14(B)(2).

{¶ 14} "III. APPELLANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION, ARTICLE 1, SECTION 10 OF THE OHIO CONSTITUTION, AS WELL AS THE DUE PROCESS OF PROTECTION UNDER THEFOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION, AND ARTICLE 1, SECTION 16 OF THE OHIO CONSTITUTION.

{¶ 15} "IV. THE COURT ERRED AS A MATTER OF LAW, AND THE SAME WAS PLAIN ERROR, IN FAILING TO GIVE A JURY CHARGE ON THE DEFENSE OF ALIBI WHEN THE DEFENDANT PROPERLY GAVE A NOTICE OF ALIBI AND PRESENTED EVIDENCE IN SUPPORT OF HIS ALIBI DEFENSE."

I, II
{¶ 16} Appellant's first and second assignments of error raise common and interrelated issues; therefore, we will address the assignments together.

{¶ 17} Appellant asserts the trial court erred in imposing a sentence above the one-year minimum prison term required by O.R.C. Section 2929.14(B) and (C). Specifically, appellant asserts the facts in this case do not support the finding appellant committed the worst form of the offense. Appellant notes he had not previously served a prison term; therefore, the statute requires the court impose the shortest prison term authorized for the offense.

{¶ 18} Appellant was convicted of unlawful sexual conduct with a minor, in violation of R.C. 2907.04(A)(3), a felony of the third degree. Section 2929.14 states:

{¶ 19} "(B) Except as provided in division (C), (D)(1), (D)(2), (D)(3), (D)(5), (D)(6), or (G) of this section, in section 2907.02 of the Revised Code, or in Chapter 2925. of the Revised Code, if the court imposing a sentence upon an offender for a felony elects or is required to impose a prison term on the offender, the court shall impose the shortest prison term authorized for the offense pursuant to division (A) of this section, unless one or more of the following applies:

{¶ 20} "(1) The offender was serving a prison term at the time of the offense, or the offender previously had served a prison term.

{¶ 21} "(2) The court finds on the record that the shortest prison term will demean the seriousness of the offender's conduct or will not adequately protect the public from future crime by the offender or others.

{¶ 22} "(C) Except as provided in division (G) of this section or in Chapter 2925. of the Revised Code, the court imposing a sentence upon an offender for a felony may impose the longest prison term authorized for the offense pursuant to division (A) of this section only upon offenders who committed the worst forms of the offense, upon offenders who pose the greatest likelihood of committing future crimes, upon certain major drug offenders under division (D)(3) of this section, and upon certain repeat violent offenders in accordance with division (D)(2) of this section."

{¶ 23} The trial court sentenced appellant to the maximum term of five years, and found:

{¶ 24} "THE COURT: I am required to weigh various factors by the sentencing law in Ohio. In terms of seriousness of the offense, there are several factors which argue the offense is more serious than most.

{¶ 25} "First of all, the injury was exacerbated by the victim's age. Secondly, I think there is serious psychological harm for a twelve-year-old, thirteen-year-old girl being involved in such a relationship with a twenty-four-year old man.

{¶ 26} "Thirdly, the offender did hold a position of trust in this particular family.

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Related

State v. Moser, 07ca10 (10-23-2007)
2007 Ohio 5811 (Ohio Court of Appeals, 2007)
Noland v. Hurley
523 F. Supp. 2d 659 (S.D. Ohio, 2007)
State v. Buchanan, Unpublished Decision (10-26-2006)
2006 Ohio 5653 (Ohio Court of Appeals, 2006)
In re Ohio Criminal Sentencing Statutes Cases
849 N.E.2d 284 (Ohio Supreme Court, 2006)

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Bluebook (online)
2006 Ohio 165, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-moser-unpublished-decision-1-19-2006-ohioctapp-2006.