[Cite as State v. McQueen, 2018-Ohio-2671.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                         CLERMONT COUNTY




 STATE OF OHIO,                                 :      CASE NO. CA2017-12-062

           Plaintiff-Appellee,                  :             OPINION
                                                               7/9/2018
                                                :
   - vs -
                                                :

 TOBY T. MCQUEEN,                               :

           Defendant-Appellant.                 :



    CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                         Case No. 2017-CR-00496



D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas A. Horton, 76 South
Riverside Drive, 2nd Floor Batavia, OH 45103, for plaintiff-appellee

W. Stephen Haynes, Clermont County Public Defender, Robert F. Benintendi, 302 East
Main Street, Batavia, OH 45103, for defendant-appellant



        M. POWELL, J.

        {¶ 1} Defendant-appellant, Toby McQueen, appeals his 60-month prison sentence

imposed by the Clermont County Court of Common Pleas following his guilty plea to sexual

battery.

        {¶ 2} Appellant was indicted in August 2017 with one count of rape, a felony of the

first degree, and one count of sexual battery, a felony of the third degree, for engaging in
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sexual intercourse with his girlfriend (the "victim") against her will. The state filed a bill of

particulars describing the conduct that constituted the rape and sexual battery. The same

facts were included in both counts, to wit: "the defendant engaged in vaginal intercourse

with [the victim] while being told to stop numerous times. Additionally, the defendant forcibly

pushed the legs of [the victim] apart to engage in intercourse." Appellant subsequently pled

guilty to sexual battery as charged and the rape charge was dismissed.

       {¶ 3} On November 16, 2017, the trial court held a sentencing hearing.                  A

presentence investigative report ("PSI") ordered by the trial court indicated that appellant

turned 18 years old 7 months prior to the sexual incident in question, had a minor criminal

record as a juvenile, and only one misdemeanor drug paraphernalia possession conviction

as an adult. In support of a short prison sentence, if not community control, defense counsel

argued that appellant was "a troubled young man," as appellant had been sexually abused

by a teenage boy from the ages of five to nine and suffered from depression, PTSD, bipolar

disorder, and suicidal tendencies. Appellant then addressed the trial court and tersely

apologized to the court, his family, and the victim for his actions.

       {¶ 4} Upon considering the purposes and principles of sentencing in R.C. 2929.11

and the factors listed in R.C. 2929.12, and reviewing the PSI, the trial court sentenced

appellant to 60 months in prison. Before doing so, the trial court first questioned appellant

about a confrontation between appellant and the victim that took place the night before the

sexual incident. Appellant denied threatening the victim but admitted the two had an

argument and that he blocked her car in an attempt to speak to her. Appellant further

admitted having "very bad anger issues."

       {¶ 5} The trial court next discussed comments appellant made to the victim in a

controlled call. The trial court noted that while appellant "apologized [to the victim] to some

extent," he also "[q]uestioned why she needed more than just an apology and then * * *

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went ballistic, yelling at her, screaming at her[.]" The trial court noted the victim's fear that

appellant would come and harm her. The trial court stated that while that type of explosive

anger was dangerous, equally troubling were appellant's dismissive attitude and his lack of

any remorse as evidenced by his statements in the PSI regarding the sexual incident.

Specifically, the trial court noted that appellant treated the sexual incident purely as "stress

F * * * to blow off some steam" and treated the victim as nothing more than a sex object.

The trial court further noted appellant's belief that the charges against him were "bullshit"

because the victim "[is] my girlfriend and she's pissed off at me." The trial court further

found that while the victim initially consented to having intercourse with appellant, such

consent was also based on fearfulness and the fact she trusted appellant, her boyfriend.

        {¶ 6} Finally, the trial court expressed incredulity over appellant's PSI statements

that he loved the victim "to death and * * * can't get her off of [his] mind":

                That's just over the top. Absolutely no person who claims to
                love someone would rape them. And that's what the original
                charge was, rape.

                She said no. And I don't care if there was some initial consent.
                When it started getting rough and started getting forceful and
                you pinned her down, that's rape. She was amazingly
                conciliatory and compassionate in the sense that she was willing
                to agree to the lesser offense.

                In reviewing the purposes and principles of sentencing, Mr.
                McQueen, community control is absolutely not warranted in this
                case. The sentence that I'm going to impose in this case will be
                five years. And it could have been 11 years on the rape charge,
                but I believe that that's the appropriate sentence in this case,
                given the violence that was involved, * * * your lack of remorse,
                your dismissive attitude towards this.1

        {¶ 7} Based upon the PSI and the evaluation performed by an "experienced



1. The victim's impact statement indicates that appellant sexually assaulted the victim and supports the trial
court's finding that appellant was "rough" when he engaged in and continued to have sexual intercourse with
the victim against her will. The victim's impact statement further indicates that appellant threatened the victim
if she did not stop crying.
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probation officer" specialized in sex offenses, the trial court found that appellant was most

likely to reoffend under similar circumstances. The trial court further stated it had reviewed

the sentences it had imposed in sexual cases over the past six years and found appellant's

sentence to be consistent with sentences imposed in similar cases.

        {¶ 8} Appellant now appeals, raising one assignment of error:2

        {¶ 9} THE TRIAL COURT'S 60[-]MONTH PRISON SENTENCE IS NOT

SUPPORTED BY THE RECORD.

        {¶ 10} Appellant argues that the trial court erred in imposing the 60-month prison

sentence. Specifically, appellant argues that his prison sentence is contrary to law because

the trial court improperly referenced the dismissed rape charge in sentencing him.

Appellant asserts that the trial court's repeated use of the word "rape" shows that the court

improperly considered appellant's conduct as "rape," and not as sexual battery, in

sentencing him on the sexual battery charge. Appellant further argues that while his

conduct was "certainly problematic [and] questionable," it did not warrant the imposition of

a 60-month prison term.

        {¶ 11} We review the imposed sentence under the standard of review set forth in

R.C. 2953.08(G)(2), which governs all felony sentences. State v. Marcum, 146 Ohio St.3d

516, 2016-Ohio-1002, ¶ 1. Pursuant to that statute, an appellate court may 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. A sentence is not clearly and convincingly contrary to law where

the trial court "considers the principles and purposes of R.C. 2929.11, as well as the factors



2. We note that the state's brief refers to sexual imposition quite a few times. While it appears some of the
references are for purposes of illustrating an hypothesis, two are clearly not. Indeed, the state first incorrectly
stated that appellant was indicted on one count of sexual imposition in violation of the sexual battery statute,
then incorrectly stated that "the facts underlying the charge of sexual imposition" were read at the plea hearing.
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listed in R.C. 2929.12, properly imposes postrelease control, and sentences the defendant

within the permissible statutory range." State v. Aburas, 12th Dist. Clermont No. CA2017-

10-054, 2018-Ohio-1984, ¶ 9.

       {¶ 12} After a thorough review of the record, we find no error in the trial court's

decision to sentence appellant to 60 months in prison. The record plainly shows that

appellant's sentence is not contrary to law. Appellant was convicted of a third-degree

felony, which is subject to a sentencing range of 12 to 60 months in prison under R.C.

2929.14(A)(3)(a). Appellant's 60-month prison sentence is therefore within the statutory

range for a third-degree felony. Aburas at ¶ 10. Furthermore, the trial court properly

considered the purposes and principles of sentencing of R.C. 2929.11, as well as the factors

listed in R.C. 2929.12, both at the sentencing hearing and within its sentencing entry. The

trial court further informed appellant of the pertinent postrelease control sanctions.

       {¶ 13} We further find that the record supports the 60-month prison sentence. The

trial court considered the information contained in the PSI and statements in favor of

mitigation from defense counsel. These considerations included that appellant sexually and

forcefully battered the victim against her will because he needed to blow off steam.

Appellant did not contest the state's presentation of facts during the plea hearing, including

that appellant forcibly pushed apart the legs of the victim to engage in intercourse and then

engaged in vaginal intercourse with the victim while being told to stop numerous times.

Aburas, 2018-Ohio-1984 at ¶ 11. The trial court considered that appellant took advantage

of his relationship with the victim and engaged in an act of sexual violence against her.

Appellant was dismissive of the seriousness of his behavior, did not show any remorse for

his actions, and instead blamed the charges on his belief that the victim, his girlfriend, was

angry at him.

       {¶ 14} While appellant only had one misdemeanor drug paraphernalia conviction as

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an adult, he had turned 18 years old only a few months before the sexual incident. And

while he had a minor criminal record as a juvenile, it included two separate charges of

domestic violence. Appellant was adjudicated delinquent for committing disorderly conduct

and ordered to attend counseling in one case, and in the other case he was ordered to

complete anger management for committing assault. In sentencing appellant, the trial court

expressed its belief that appellant was most likely to reoffend under similar circumstances.

       {¶ 15} We now turn to appellant's argument that the trial court improperly referenced

the dismissed rape charge in sentencing him to 60 months in prison. Although we do not

condone the trial court's statements, they do not warrant reversal of appellant's sentence.

While perhaps unfortunate and unartful, two of the statements were proper observations of

the record and the sentencing statute, to wit, one of appellant's original charges was rape,

and had appellant pled guilty to rape, he could have been sentenced to 11 years in prison.

See R.C. 2929.14(A)(1).

       {¶ 16} Regarding the trial court's other two references to rape, standing alone, those

statements may suggest that the trial court sentenced appellant based upon the dismissed

rape charge. However, when viewed in the context of the sentencing hearing in its entirety,

the statements simply and plainly reflect the trial court's frustration with appellant's

dismissive attitude, his refusal to take responsibility for his actions, his total lack of remorse,

and the violence used in the sexual incident. Furthermore, the fact the trial court reviewed

the sentences it had imposed in sexual cases over the past six years and found appellant's

sentence to be consistent with sentences imposed in similar cases negates appellant's

argument.

       {¶ 17} We therefore find that appellant's 60-month prison sentence was not contrary

to law and was otherwise supported by the record. Appellant's assignment of error is

overruled.

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{¶ 18} Judgment affirmed.


S. POWELL, P.J., and PIPER, J., concur.




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