[Cite as State v. Elston, 2012-Ohio-2842.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                            CASE NO. 12-11-11

        v.

RICHARD E. ELSTON,                                     OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Putnam County Common Pleas Court
                            Trial Court No. 2011 CR 32

                                       Judgment Affirmed

                              Date of Decision: June 25, 2012




APPEARANCES:

        Nicole M. Winget for Appellant

        Todd C. Schroeder for Appellee
Case No. 12-11-11


PRESTON, J.

       {¶1} Defendant-appellant, Richard Elston, appeals the Putnam County

Court of Common Pleas’ sentence of five years imprisonment following his plea

of guilty to gross sexual imposition. Elston contends his sentence is unsupported

by the record. For the reasons that follow, we affirm.

       {¶2} On March 4, 2011, a Putnam County grand jury indicted Elston on

three counts of rape, violations of R.C. 2907.02(A)(1)(b) and (A)(2) and felonies

of the first degree, and two counts of gross sexual imposition, violations of R.C.

2907.05(A)(4) and felonies of the third degree.      (Doc. No. 1).   The charges

stemmed from allegations that Elston had, on multiple occasions, digitally

penetrated his stepdaughter’s vagina when she was nine and ten years old. (PSI).

The victim’s sister, who is also Elston’s stepdaughter, alleged Elston had

inappropriately touched her on several occasions by rubbing her breasts and

placing her hand on his penis. (Id.).

       {¶3} The trial court arraigned Elston on March 8, 2011. (Doc. No. 13).

Elston pleaded not guilty to the charges. (Id.).

       {¶4} On September 2, 2011, Elston changed his plea to guilty to one count

of gross sexual imposition pursuant to a plea agreement. (Doc. No. 96). The State

dismissed the remaining charges and agreed to remain silent at the sentencing

hearing. (Id.).


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       {¶5} The trial court held a sentencing hearing on October 19, 2011. (Doc.

No. 105). After hearing two victim impact statements, the trial court found that

Elston had a prior felony sex offense conviction, that he had served a prior prison

term, that he had used his relationship with the victim to facilitate the offense, that

the victim suffered serious harm, that there were multiple victims of Elston’s

conduct, and that Elston “engaged in multiple sex offense acts over an extended

period of time.” (Id.). The trial court sentenced Elston to five years imprisonment

for gross sexual imposition, the maximum sentence for the offense. (Id.).

       {¶6} Elston filed a notice of appeal on November 10, 2011. (Doc. No.

108). Elston now raises a single assignment of error for our review.

                               Assignment of Error

       The trial court erred when imposing a maximum sentence when
       the sentence was not supported by the record.

       {¶7} In his assignment of error, Elston argues his conduct was not more

serious than conduct normally constituting the offense, so the trial court erred

when it imposed the maximum sentence.

       {¶8} 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; the sentencing statutes’ procedure was not followed or

there was not a sufficient basis for the imposition of a prison term; or that the

sentence is contrary to law. State v. Ramos, 3d Dist. No. 4-06-24, 2007-Ohio-767,

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Case No. 12-11-11


¶ 23 (the clear and convincing evidence standard of review set forth under R.C.

2953.08(G)(2) remains viable with respect to those cases appealed under the

applicable provisions of R.C. 2953.08(A), (B), and (C) * * *); State v. Rhodes,

12th Dist. No. CA2005-10-426, 2006-Ohio-2401, ¶ 4; State v. Tyson, 3d Dist. Nos.

1-04-38; 1-04-39, 2005-Ohio-1082, ¶ 19, citing R.C. 2953.08(G). Clear and

convincing evidence is that “which will produce in the mind of the trier of facts a

firm belief or conviction as to the facts sought to be established.” Cross v.

Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus; State v. Boshko,

139 Ohio App.3d 827, 835 (12th Dist.2000). An appellate court should not,

however, substitute its judgment for that of the trial court because the trial court is

‘“clearly in the better position to judge the defendant’s dangerousness and to

ascertain the effect of the crimes on the victims.”’ State v. Watkins, 3d Dist. No. 2-

04-08, 2004-Ohio-4809, ¶ 16, quoting State v. Jones, 93 Ohio St.3d 391, 400

(2001).

       {¶9} Elston pleaded guilty to gross sexual imposition in violation of R.C.

2907.05(A)(5), a felony of the third degree. (Doc. No. 96). R.C. 2929.14(3)(a)

provides, “[f]or a felony of the third degree that is a violation of section * * *

2907.05 of the Revised Code * * * the prison term shall be twelve, eighteen,

twenty-four, thirty, thirty-six, forty-two, forty-eight, fifty-four, or sixty months.”




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Here, the trial court sentenced Elston to five years, or sixty months, the maximum

sentence within the statutory range. (Doc. No. 105).

       {¶10} Elston argues that although his sentence is within the statutory range,

the trial court erred by imposing the maximum sentence because it is excessive in

light of his offense. As a preliminary matter, we note that Elston was sentenced

after the effective date of the revisions to the felony sentencing statutes under H.B.

86. The revised sentencing statutes require, among other things, that the trial court

make findings on the record in specific circumstances, such as when imposing a

consecutive sentence. State v. Hites, 3d Dist. No. 6-11-07, 2012-Ohio-1892, ¶ 11;

R.C. 2929.14. However, the trial court is not required to make findings here

because Elston was sentenced to prison on a single gross sexual imposition

offense. See R.C. 2929.14. Consequently, the trial court had the full discretion to

sentence Elston to any term of imprisonment within the statutory range. State v.

Foster, 109 Ohio St.3d 1, 2006-Ohio-856, paragraph seven of the syllabus.

However, the trial court was still required to consider the sentencing purposes in

R.C. 2929.11 and the guidelines contained in R.C. 2929.12. State v. Stone, 3d

Dist. No. 9-11-39, 2012-Ohio-1895, ¶ 10, citing Foster at ¶ 36-42.

       {¶11} R.C. 2929.12(B) states, in pertinent part:

       The sentencing court shall consider all of the following that apply

       regarding the offender, the offense, or the victim, and any other


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      relevant factors, as indicating that the offender’s conduct is more

      serious than conduct normally constituting the offense:

      (1) The physical or mental injury suffered by the victim of the

      offense due to the conduct of the offender was exacerbated because

      of the physical or mental condition or age of the victim.

      (2) The victim of the offense suffered serious physical,

      psychological, or economic harm as result of the offense.

      ***

      (6) The offender’s relationship with the victim facilitated the

      offense.

Furthermore, the sentence should be reasonably calculated to achieve the

overriding purposes of felony sentencing contained in R.C. 2929.11, which are “to

protect the public from future crimes by the offender and others and to punish the

offender, and shall be commensurate with and not demeaning to the seriousness of

the offender’s conduct and its impact upon the victim, and consistent with

sentences imposed for similar crimes committed by similar offenders.” Hites at ¶

8.

      {¶12} At the sentencing hearing, the trial court reviewed Elston’s PSI and

the victim impact statements. (Doc. No. 105). One of Elston’s stepdaughters

submitted a statement where she detailed the long-term mental and emotional


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Case No. 12-11-11


injury she suffered as a result of Elston’s conduct. (Sentencing Tr. at 12-18). The

victim stated that Elston had ruined years of her life, that she was scared to be

alone with Elston for the many years while they lived in the same home, that she is

afraid he may have hurt her youngest sister, that she is currently unable to trust

men, that she feels insecure about herself, and that she does not believe she can

live a normal life. (Id.). The victims’ mother also expressed anger at Elston,

stating “you stole my daughters’ childhood from them and made them live in fear

for so many years,” and “[m]y children looked up to you, and you were supposed

to be a father figure to them and instead you took advantage of that.” (Id. at 9).

Regarding Elston’s sentence, the victims’ mother further stated:

        the fact that you took a plea agreement in no way gives justice to my

        girls. The fact that the maximum is five years is only a slap on the

        hand for you, considering that from the first time you touched my

        daughters until they were brave enough to come forward you took

        ten years from their lives, not to mention the years it will take them

        to finally move on and put this behind them, if that day ever comes

        for them. You deserve life for your crimes because that is what

        you’ve taken from them.1


1
  This Court has previously recognized that, during sentencing, there are limits on a trial court’s
consideration of the allegations that form the basis of charges dismissed pursuant to a plea agreement.
State v. Blake, 3d Dist. No. 14-03-33, 2004-Ohio-1952, ¶ 5; State v. Park, 3d Dist. No. 3-06-14, 2007-
Ohio-1084, ¶ 7.

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(Sentencing Tr. at 9-10). Elston’s PSI indicated that he had served a prior prison

sentence for a corruption of a minor conviction, a felony sex offense. (PSI).

According to the PSI, Elston repeatedly had sexual contact with his nine-year-old

stepdaughter over a two or three year period. (Id.). The stepdaughter is currently

fourteen years of age and stated that she did not tell anyone about Elston’s conduct

when it was occurring. (Id.).

       {¶13} The trial court also questioned Elston regarding his version of the

events. (Sentencing Tr. at 18-19). Elston claimed that he accidentally touched

one of the victims when he was tickling her and pulled her shorts down. (Id. at

19). Elston claimed he did not have any other sexual contact with either of his

stepdaughters. (PSI). The trial court stated:

       Well, that simply does not comport with what are the statements of

       the victims in this case. The Court does not believe your version of

       events. The Court finds that, first of all, you have served a prison

       term, you have a prior conviction. You also have, according to the

       Court’s file, a relationship with the victim which facilitated this

       offense; that the victim suffered serious physical, psychological, or

       economic harm as a result; that the injury was worsened because of

       the age of the victims in this offense.”

(Id. at 19-20).


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       {¶14} We cannot find that the trial court erred by imposing the maximum

sentence for this offense. The trial court’s finding that Elston’s conduct was more

serious than conduct that normally constitutes the offense according to the factors

listed in R.C. 2929.12(B) is supported by the record, which demonstrates that

Elston was the victims’ stepfather and used his relationship to commit the offense,

that the victims were children at the time of the offense, and that the victims have

suffered serious mental and emotional harm as a result. (PSI). Furthermore,

Elston’s sentence is consistent with the sentencing purposes provided in R.C.

2929.11 by punishing Elston, protecting the public, and recognizing the

seriousness of his offense.

       {¶15} Elston’s assignment of error is, therefore, overruled.

       {¶16} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                Judgment Affirmed

WILLAMOWSKI and ROGERS, J.J., concur.

/jlr




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