[Cite as State v. Vinson, 2013-Ohio-1844.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                             BUTLER COUNTY




STATE OF OHIO,                                     :

        Plaintiff-Appellee,                        :     CASE NO. CA2012-09-179

                                                   :           OPINION
    - vs -                                                      5/6/2013
                                                   :

GAYLON JAMIL VINSON,                               :

        Defendant-Appellant.                       :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2012-04-0581



Michael T. Gmoser, Butler County Prosecuting Attorney, Michael A. Oster, Jr., Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Billy W. Guinigundo, 5331 South Gilmore Road, Fairfield, Ohio 45014, for defendant-
appellant



        PIPER, J.

        {¶ 1} Defendant-appellant, Gaylon Vinson, appeals a decision of the Butler County

Court of Common Pleas, sentencing him to ten years in prison after Vinson pled guilty to one

count of rape.

        {¶ 2} In 1998, when he was 16 years old, Vinson pried open a basement window and

entered the victim's home. Vinson proceeded to the victim's bedroom where she lay asleep
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with her two young children. Vinson held a knife to the victim's throat, put his hand over her

mouth, and threatened to kill the victim and her children if she did not cooperate. Vinson

then raped the victim while the victim's six-year-old daughter lay awake beside her. Vinson

ejaculated on the victim and her bed, and then wiped away the semen with his shirt. Vinson

then told the victim that if she reported the incident to police, he would return and harm her

and her children. Notwithstanding Vinson's threats, the victim reported the rape, and police

obtained a DNA sample. Police were unable to match the DNA sample, and the crime went

unsolved until 2012.

       {¶ 3} In 2012, Vinson was suspected of sexually assaulting a woman in Columbus.

As part of the investigation, the Columbus Police Department obtained Vinson's DNA. The

DNA sample was matched to the 1998 rape, and Vinson was charged with rape by way of a

bill of information. Vinson pled guilty to one count of rape.

       {¶ 4} The state and Vinson agreed that laws effective in 1998 would govern his case,

and the matter proceeded to a sexual offender classification and sentencing hearing. Before

the sentencing was complete, the trial court ordered a forensic psychological evaluation as

well as a presentence investigation report. During the hearing, the trial court heard from two

of Vinson's supporters, who offered statements in mitigation. The trial court also heard from

the victim and the victim's daughter. The trial court then found that Vinson committed the

worst form of the offense, and sentenced him to ten years in prison. Vinson now appeals his

sentence, raising the following assignment of error.

       {¶ 5} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT WHEN IT

FOUND HE HAD COMMITTED THE WORST FORM [sic] THE OFFENSE.

       {¶ 6} Vinson argues the trial court erred when it found Vinson had committed the

worst form of the offense because the trial court failed to give adequate consideration and

weight to the fact that Vinson was 16 years old at the time he committed the offense.
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       {¶ 7} In 1998, and at the time Vinson committed the rape, a trial court was permitted

to impose up to a ten-year sentence for a felony conviction of the first degree. R.C. 2929.14.

If the trial court imposed the maximum sentence, it was required to make a finding that the

offender committed the worst from of the offense, or that the offender posed the greatest

likelihood of committing future crimes, and support its reasoning for so finding. R.C.

2929.14(C).

       {¶ 8} "When considering whether a defendant committed the 'worst form' of the

offense, the trial court is not required to compare the defendant's conduct to some

hypothetical, absolute worst form of the offense" because there is "no one worst form of an

offense." State v. Boshko, 139 Ohio App.3d 827, 836 (12th Dist.2000). Instead, "the court

must consider the totality of the circumstances to determine whether a defendant has

committed the worst form of the offense." Id. When reviewing the seriousness of the

offender's conduct, the trial court was to be guided by R.C. 2929.12(B), which listed factors

for the trial court to consider. Including any "relevant" factor as listed in R.C. 2929.12(B), the

other R.C. 2929.12(B) factor applicable to this case is, "(2) the victim of the offense suffered

serious physical, psychological, or economic harm as a result of the offense."

       {¶ 9} The trial court considered the facts of the offense, the applicable factors as set

forth in the statute, the presentence investigation report, the forensic psychological

evaluation, the victim's statement, the statement of the victim's daughter, and well as the

mitigation evidence submitted on behalf of Vinson before determining that Vinson committed

the worst from of the offense.

       {¶ 10} The trial court first considered the facts of the case, including that Vinson broke

into the victim's home, held a knife to her throat and covered her mouth, and threatened the

victim's life and that of her children if she did not cooperate. The trial court considered the

fact that as the victim's six-year-old daughter lay awake next to her mother, Vinson raped the
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victim, and then threatened to harm the victim and her children if the victim reported the

incident. The trial court also considered that Vinson tried to conceal his crime by using his

shirt to wipe his semen away, and that Vinson exited the victim's house and was not

apprehended until 2012.

        {¶ 11} The trial court also considered the victim's own statement, as well as that of her

daughter, which demonstrated that the victim suffered serious psychological harm as result of

the rape. The statements from the victim and her daughter demonstrate the psychological

toll the rape took on the victim, including "her [not] being able to trust easily, her [not] feeling

safe at home," as well as robbing the victim of her "peace of mind." The victim reported that

she lived for over a decade with the crime unsolved, fearing that her perpetrator would return

to harm her or her children, or to rape her again.1

        {¶ 12} The trial court also considered the fact that Vinson maintained throughout the

forensic psychological evaluation and presentence investigation process that he had not

raped the victim, and that instead, the victim was a friend of the family who had agreed to

engage in consensual sex with him. Vinson even maintained that because he was a juvenile

at the time of the sexual encounter, the victim should actually be the one "in trouble" for

engaging in a sexual act with a minor. The trial court also considered the fact that Vinson

expressed no remorse for his actions, instead stating that he did not remember the victim

because she was nothing that he "really needed to remember."

        {¶ 13} Vinson argues that the trial court's finding failed to take into consideration or

failed to lend enough significance to the fact that he was 16 at the time of the offense.

However, the record clearly indicates that the trial court considered Vinson's age and



1. The victim made reference to the fact that one week after the rape, someone tried to break into her home
through the same window used by Vinson, and only abandoned the break-in upon realizing that she had several
people staying with her in her home.


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balanced it with the facts and circumstances of the case, as well as the statutory factors.

During the sentencing hearing, the trial court stated

              As I sit up here and I listen to the information that's been
              presented * * * I do it being mindful that not every 16-year-old is
              the same. I understand that. I understand being a 16-year-old
              isn't the same as being a 30 year old. * * * So I have at least a
              sense, I think, a relevant sense of the general mind set, attitude,
              maturity level of kids that age. Being, of course, that every kid is
              different, and I understand that. And I do have to take into
              consideration that he was a juvenile * * *. The law recognizes
              that someone that age doesn't have the same mental
              development as an adult.

       {¶ 14} The record indicates that the trial court clearly considered Vinson's age at the

time of the offense, as well as the fact that Vinson was much younger when he raped the

victim. The trial court also took into consideration that 16-year-olds do not have the same

mental development as an adult, and weighed that factor against the circumstances of

Vinson breaking into the victim's home, raping her in front of her children, and threatening to

kill her and her children. The trial court weighed Vinson's age at the time of the offense

against all the other circumstances of the crime and found that Vinson committed the worst

from of the offense, and we find no error in that conclusion.

       {¶ 15} After thoroughly reviewing the record, the trial court's finding that Vinson

committed the worst form of the offense was not erroneous. Vinson's sole assignment of

error is therefore overruled.

       {¶ 16} Judgment affirmed.


       HENDRICKSON, P.J., and RINGLAND, J., concur.




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