[Cite as State v. Picard, 2011-Ohio-6781.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


                                               :   JUDGES:
STATE OF OHIO                                  :   William B. Hoffman, P.J.
                                               :   John W. Wise, J.
                          Plaintiff-Appellee   :   Julie A. Edwards, J.
                                               :
-vs-                                           :   Case No. 2009CA0108
                                               :
                                               :
JOHN S. PICARD                                 :   OPINION

                     Defendant-Appellant




CHARACTER OF PROCEEDING:                            Criminal Appeal from Richland
                                                    County Court of Common Pleas Case
                                                    Nos. 2008-CR-545H & 2009-CR-
                                                    111H

JUDGMENT:                                           Affirmed In Part, and Reversed and
                                                    Remanded In Part

DATE OF JUDGMENT ENTRY:                             December 23, 2011

APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

JAMES J. MAYER, JR.                                 TERRENCE K. SCOTT
Richland County Prosecutor                          Ohio Public Defender
                                                    Assistant State Public Defender
BY: JILL M. COCHRAN                                 250 East Broad Street, Suite 1400
Assistant Richland County Prosecutor                Columbus, Ohio 43215
38 South Park Street – 2nd Street
Mansfield, Ohio 44902
[Cite as State v. Picard, 2011-Ohio-6781.]


Edwards, J.

        {¶1}     Appellant, John S. Picard, appeals a judgment of the Richland County

Common Pleas Court convicting him of twelve counts of sexual battery in violation of

R.C. 2907.03(A)(1) and four counts of sexual battery in violation of R.C. 2907.03(A)(9)

in case number 2008-CR-545H, and fourteen counts of sexual battery in violation of

R.C. 2907.03(A)(1) and twelve counts of sexual battery in violation of R.C.

2907.03(A)(2) in case number 2009-CR-111H. Appellee is the State of Ohio.

                                STATEMENT OF FACTS AND CASE

        {¶2}     In 1990, appellant was hired as the youth pastor at the Marion Avenue

Grace Brethren Church in Mansfield, Ohio. In his position at the church, appellant and

his wife Sherry had regular contact with teenage girls and young adult females in the

church.

        {¶3}     Appellant formed close relationships with several of the girls in the youth

group, distancing these girls from their family and friends. He referred to this smaller

group as “the family,” which was made up of appellant and his wife, several of the girls

in the youth group, and eventually the girls’ husbands as the girls grew older and

married. As the leader, appellant controlled nearly every aspect of their lives. Appellant

influenced where the girls lived, who they dated or married, and what cars they

purchased. Appellant spoke of having a large piece of land where the “family” could live

in a large house with separate wings, sharing a common kitchen and dining area.

        {¶4}     H.G. began attending the Marion Avenue Church when she was twelve

years old and moved in with her great aunt and uncle after her parents died. She began

babysitting appellant’s children when she was sixteen. When she was sixteen, she and
Richland County App. Case No. 2009CA0108                                               3


appellant began kissing and fondling. One night, after eating dinner with appellant’s

family, H.G. went to the basement with appellant to spot him while he was working out.

Appellant had H.G. perform oral sex on him. Appellant explained to H.G. that it wasn’t

sinful because it wasn’t sex. On another occasion, appellant and H.G. were in the

bedroom of appellant’s home naked. Appellant digitally penetrated H.G.’s vagina, but

appellant’s son walked in before the encounter could go any further. H.G. left the area

when she turned eighteen, but saw appellant one last time thereafter. Appellant drove

her out into the country where they kissed and fondled each other, and H.G. performed

oral sex on appellant.

      {¶5}    S.S. began attending Marion Avenue Church in her sophomore year of

high school. Her mother had divorced for a second time and she had to move in with

her father. While involved with the youth group, S.S. would run errands with appellant.

On one occasion they went for a motorcycle ride. Appellant reached between S.S.’s

legs, claiming he was switching to an alternate gas tank.       Like H.G., S.S. babysat

appellant’s children. On one occasion, appellant asked S.S. to stop at his house after a

New Year’s Eve party. When she arrived, the house was dark. Appellant took her into

the bedroom, kissed her, pulled down her pants and touched her genital area. He

asked her to say, “Fuck me.” Tr. 215. She became afraid because she had never seen

appellant behave in such a harsh manner. She ultimately said what he asked her to

say, although no penetration occurred.      On Sundays after church appellant began

taking S.S. by the hand and leading her to his office, where they would kiss and stroke

each other.   Appellant told her that being a youth pastor was difficult and he was

frequently under attack, and this was a form of comfort his wife could not give him.
Richland County App. Case No. 2009CA0108                                                  4


       {¶6}   During the summer of 2004, S.S. accompanied the youth group on a

mission trip. While taking the garbage to the dumpster with appellant, he unzipped his

pants and guided her head to his penis, asking her to put his penis in her mouth. He

instructed her to perform oral sex on him in the back of a truck at a later time on the

same mission trip. He told S.S. that this was something his wife could not do for him.

       {¶7}   S.W. was an only child from what she considered a normal family.

However, as she became more involved with appellant and Sherry through the youth

group, her relationship with her parents deteriorated.    In the fall of 1995, appellant

asked S.W. to kiss him. By 1996, S.W. considered appellant to be her best friend.

Appellant told her that best friends engage in sexual acts with each other, claiming that

the Bible states that Jonathan and David were best friends who engaged in sexual

behavior together. He also told S.W. that when the Bible says a pastor should be a one

woman man that just means he can’t be with two women at the same time.                   He

explained to her that his job was very taxing, and he needed her to fill him back up.

Around 1996 or 1997, he asked S.W. to perform oral sex on him in the kitchen of his

home. For the next ten years, she regularly engaged in oral sex and sexual intercourse

with appellant. He told her it would be a worse sin for her not to have sex with him than

it would be to have sex with him, because God was protecting their relationship.

Sometimes when S.W. did not want to have sex with appellant she cried, and appellant

told her he liked it when she cried.

       {¶8}   G.R. attended the youth group at the Marion Avenue Church. She had

been sexually abused by her father. G.R. also babysat for appellant and Sherry. When

G.R. was 13 and appellant was driving her home after babysitting, he pulled into a
Richland County App. Case No. 2009CA0108                                                5


wooded area and asked her to perform oral sex on him. Appellant told her that he

believed God put her in his life for this special relationship because there were things

Sherry could not do for him. Appellant and G.R. began engaging in oral sex and sexual

intercourse on a weekly basis when she babysat for his children. Sometimes in his

office in the church he would place her on his lap, rub her breasts and her genital area,

and have her rub his genitals. During a game of hide and seek at a youth group

overnighter at the church, appellant found G.R. hiding in the baptismal. He had G.R.

perform oral sex on him in the baptismal. He told G.R. that he had consulted the Holy

Spirit and had received peace that his relationship with G.R. was right. He told her that

giving him oral sex was her God-given role as his comforter.

      {¶9}   J.F. is G.R.’s step-sister. Between the ages of 18 and 20, she began

giving appellant oral sex in his office and in a storage room at the church. In April of

1999, when J.F. was 20 years old, she began engaging in sexual intercourse with

appellant. After she moved into her own apartment in October, 2001, she and appellant

engaged in sex once or twice a week. Appellant told her if she didn’t have sex with him,

he would terminate their friendship and she would be shunned by the church. Appellant

hit J.F. at times, and threatened to tie her up if she did not comply with his request for

sex. Appellant told her that she was a special friend who had been chosen for him. He

explained to her that their relationship was not different from those in the Bible,

including Jonathan and David.     He told her that in the Biblical account of the Last

Supper where John leans on Jesus, it is possible that John had contact with Jesus’

genitals. He also recounted the story, where Abraham places his hand on another
Richland County App. Case No. 2009CA0108                                                   6


man’s thigh to make an oath, to support his claims that his relationship with J.F. was

Biblically sanctioned.

       {¶10} L.R. was 14 years old when she began attending the church with a friend.

She admired and trusted appellant and thought of him more highly as a spiritual leader

than anyone she had ever met. She longed to be a part of the group that was close to

appellant and his wife. On one occasion when she was on the church bus alone with

appellant, he told her that he thought she was very godly, and if anything happened to

Sherry, L.R. is the kind of woman he would want for his wife. In 2004, L.R. asked to

meet with appellant to learn how to memorize Scripture. When she went to appellant’s

office, he told her that things were hard and he needed comfort. He then placed L.R.’s

hands on his genitals, telling her that his wife is not a comfort to him and L.R. is the only

one he could trust. When decorating for a wedding shower at the church, appellant

pulled L.R. into his office and asked her for oral sex.        She refused.    However, in

September of 2004 appellant convinced L.R. to perform oral sex on him. Eventually the

oral sex progressed into sexual intercourse, and the sexual behavior continued regularly

through December of 2007. He explained that this was not adultery, telling L.R., “You

were given to me by God. You were made just for me.” Tr. 635.

       {¶11} In 2005, H.G. disclosed her involvement with appellant to a pastor at her

new church. This pastor in turn relayed the allegations to the Marion Avenue church,

and H.G. was called before a council of pastors. H.G.’s claims were discounted by the

church, but the church held a series of meetings about whether to retain appellant as

youth pastor. His other victims attended these meetings, either standing in full support

of appellant or remaining silent. Many members of the church had become concerned
Richland County App. Case No. 2009CA0108                                               7


about appellant’s close relationships with young women in the congregation, with one

member referring to the group as appellant’s “harem.” Tr. 229.

         {¶12} Although the congregation voted to retain appellant, he resigned from the

church and made plans to form his own church with members of his “family.” These

plans fell apart in January of 2005 when S.S. confessed her relationship with appellant

to her husband.

         {¶13} Initially, police were not concerned with relationships between appellant

and the girls after they turned 18, believing them to be consensual relationships

between adults.      Appellant was initially indicted in Case No. 08-CR-545 for sexual

battery against H.G. and G.R. when they were juveniles. After the nature of the control

and mental and spiritual coercion appellant exerted over the girls became apparent to

police, the State moved to amend the indictment to include offenses against H.G. and

G.R. after they turned 18, and to amend the statutory subsection in counts nine through

sixteen, which related to H.G., to allege a violation of R.C. 2907.03(A)(1) rather than a

violation of R.C. 2907.03(A)(9) because subsection (A)(9) was not in effect during the

time period alleged in these counts.

         {¶14} Appellant was later indicted in 09-CR-111 for sexual battery against S.W.,

L.R., J.F. and S.S. The cases were consolidated for trial.

         {¶15} The case proceeded to jury trial in the Richland County Common Pleas

Court.    Following trial, appellant was convicted of all charges and sentenced to an

aggregate term of 40 years in prison, with 5 years mandatory post-release control.

         {¶16} Appellant appealed to this court, assigning the following errors:
Richland County App. Case No. 2009CA0108                            8


     {¶17} “I. DEFENDANT-APPELLANT’S CONSTITUTIONAL AND STATUTORY

SPEEDY TRIAL RIGHTS WERE VIOLATED BY THE STATE’S FAILURE TO BRING

HIM TO TRIAL WITHIN 270 DAYS OF HIS ARREST.

     {¶18} “II. THE TRIAL COURT ERRED IN REFUSING TO DISMISS COUNTS

OF THE INDICTMENT WHICH WERE FILED AFTER THE EXPIRATION OF THE

APPLICABLE STATUTE OF LIMITATIONS.

     {¶19} “III.   DEFENDANT-APPELLANT’S   CONSTITUTIONAL   AND   DUE

PROCESS RIGHTS WERE VIOLATED BY THE GENERIC FORM OF THE

INDICTMENTS AND BILLS OF PARTICULARS AND BY REPEATED AMENDMENTS

TO THE INDICTMENTS AND REFUSAL TO PERMIT GRAND JURY TRANSCRIPT

INSPECTION, SUCH THAT HIS CONVICTIONS MUST BE REVERSED.

     {¶20} “IV. THE TRIAL COURT ERRED IN REFUSING TO DECLARE A

MISTRIAL, DISMISS COUNTS INVOLVING G.R., STRIKE HER TESTIMONY OR

INSTRUCT THE JURY AS TO THE ASSERTION OF HER FIFTH AMENDMENT

RIGHTS.

     {¶21} “V. THE DEFENDANT WAS DENIED DUE PROCESS BY THE STATE’S

FAILURE TO PROVIDE TIMELY DISCOVERY, FAILURE TO PROVIDE EVIDENCE

FAVORABLE TO THE ACCUSED AND THE STATE’S MISUSE OF PRETRIAL

SUPERVISION AUTHORITY, SUCH THAT THE CHARGES AGAINST HIM SHOULD

HAVE BEEN DISMISSED.

     {¶22} “VI. THE VERDICT FORMS DO NOT SUPPORT DEFENDANT’S

CONVICTIONS FOR 42 COUNTS OF SEXUAL BATTERY.”
Richland County App. Case No. 2009CA0108                                                    9

       {¶23} This Court affirmed the judgment of conviction and sentence. State v.

Picard, Richland App. No. 2009 CA 0108, 2010-Ohio-6358. Appellant filed a motion to

reopen his appeal pursuant to App. R. 26(B), arguing that appellate counsel was

ineffective for failing to raise a sufficiency of the evidence claim as to all eight counts of

sexual battery against H.G. On April 14, 2011, this Court granted the motion to reopen.

Appellant assigns two errors on the reopened appeal:

       {¶24} “THE TRIAL COURT ERRED BY CONVICTING MR. PICARD FOR SIX

COUNTS OF SEXUAL BATTERY IN CASE NO. 2008-CR-545H WITHOUT

SUFFICIENT EVIDENCE, IN VIOLATION OF THE FIFTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 16,

ARTICLE I OF THE OHIO CONSTITUTION.

       {¶25} “II. APPELLATE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE, IN

VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED

STATES     CONSTITUTION         AND    SECTION          10,   ARTICLE   I   OF   THE   OHIO

CONSTITUTION, FOR FAILING TO RAISE A WINNING ISSUE ON APPEAL.”

                                                I, II

       {¶26} We address both assignments of error together, as in the second

assignment of error, appellant argues counsel was ineffective for failing to raise the

sufficiency of the evidence claim he raises in his first assignment of error as to H.G.

Appellant argues that the state only presented evidence of sexual conduct, as required

to support a conviction for sexual battery, to support two counts. He accordingly argues

he should have been acquitted on six counts and only convicted of two counts.
Richland County App. Case No. 2009CA0108                                               10

      {¶27} A properly licensed attorney is presumed competent. State v. Hamblin

(1988), 37 Ohio St.3d 153, 524 N.E.2d 476. Therefore, in order to prevail on a claim of

ineffective assistance of counsel, appellant must show counsel's performance fell below

an objective standard of reasonable representation and but for counsel’s error, the

result of the proceedings would have been different.    Strickland v. Washington (1984),

466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Bradley (1989), 42 Ohio St.3d

136. In other words, appellant must show that counsel’s conduct so undermined the

proper functioning of the adversarial process that the trial cannot be relied upon as

having produced a just result. Id.

      {¶28} An appellate court's function when reviewing the sufficiency of the

evidence is to determine whether, after viewing the evidence in a light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of the

crime proven beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St. 3d 259,

574 N.E.2d 492, paragraph two of the syllabus.

      {¶29} Appellant was convicted of eight counts of sexual battery where H.G. was

the victim. Sexual battery is defined by R.C. 2907.03(A)(1):

      {¶30} “(A) No person shall engage in sexual conduct with another, not the

spouse of the offender, when any of the following apply:

      {¶31} The offender knowingly coerces the other person to submit by any means

that would prevent resistance by a person of ordinary resolution.”

      {¶32} Sexual conduct is defined by R.C. 2907.01(A)(1):

      {¶33} “(A) ‘Sexual conduct’ means vaginal intercourse between a male and

female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex;
Richland County App. Case No. 2009CA0108                                               11


and, without privilege to do so, the insertion, however slight, of any part of the body or

any instrument, apparatus, or other object into the vaginal or anal opening of another.

Penetration, however slight, is sufficient to complete vaginal or anal intercourse.”

         {¶34} Upon a complete review of H.G.’s testimony, we find evidence sufficient to

support convictions on three counts of sexual battery.

         {¶35} Appellant concedes that the following testimony provides evidence

sufficient to support two convictions of sexual battery:

         {¶36} “Q. 17 years. Okay. When’s the next incident that you recall that involves

some sort of inappropriate touching?

         {¶37} “A. I don’t know if I’ll get them all in the right order, but there was an

incident in the basement of the house. His wife and his children were home.

         {¶38} “Q. And how old were you?

         {¶39} “A. I would have been 16 still.

         {¶40} “Q. What happened in the basement?

         {¶41} “A. I went over to the house to have dinner, and he decided that he was

going to work out and I was going to spot him. We went down and there was fondling

and kissing, and there was a point where he grabbed a towel and ejaculated into that

towel.

         {¶42} “Q. Well, how does he reach the point of ejaculation if - - in this whole

scenario?

         {¶43} “A. Just I was giving him oral sex and just touching and - -

         {¶44} “Q. Okay. Was he touching you?

         {¶45} “A. Yes.
Richland County App. Case No. 2009CA0108                                                 12


       {¶46} “Q. And where was he touching you?

       {¶47} “A. My breasts and my vagina.

       {¶48} “Q. At any point as he’s touching you, is he inserting his - - his penis or his

fingers?

       {¶49} “A. No, not this time, no.

       {¶50} “Q. And how is it while you’re down there spotting for him that it turns into

a sex act? Do you have a recollection of that?

       {¶51} “A. No.

       {¶52} “Q. Any idea of whether or not he took off his clothing or - -

       {¶53} “A. He had his pants down, but he didn’t take them off.

       {¶54} “Q. And where were his wife and children?

       {¶55} “A. Upstairs. His wife was cooking dinner.” Tr. 171-172.

       {¶56} “Q. Does there come another time that you see him then again?

       {¶57} “A. He came to see me one last time.

       {¶58} “Q. And what happens on that one last time?

       {¶59} “A. We drove in his car out to an old country road and had another

intimate time.

       {¶60} “Q. And by intimate time, you have to be a little more specific.

       {¶61} “A. There was kissing and fondling and I gave him oral sex.” Tr. 176.

       {¶62} We also find that H.G.’s testimony concerning the following incident is

sufficient to support a finding of sexual conduct:

       {¶63} “Q. Then does another incident happen?

       {¶64} “A. Yes.
Richland County App. Case No. 2009CA0108                                                   13


       {¶65} “Q. What happens - - what’s the next incident you remember?

       {¶66} “A. The next incident is - - occurs when I was at his house, and I don’t

remember if the kids were there. I always assume that the kids are there, because

that’s what I did. I went to baby-sit. But it happened in his - - oh, yes, actually I do

remember. His kids were there. They were upstairs napping, because I remember

Greg came in. We were in the bedroom, clothes completely off.

       {¶67} “Q. And what was going on with clothes completely off?

       {¶68} “A. A lot of touching, kissing. That time he did insert his finger inside of

me. But it didn’t go any further than that because, like I said, Greg got up and came into

the room. That ended things.

       {¶69} “Q. Was there any oral sex?

       {¶70} “A. I don’t remember.” Tr. 174.

       {¶71} Appellant argues as to this incident of digital penetration that the state

failed to prove that “Mr. Picard actually penetrated an orifice that is prohibited under

R.C. 2907.01(A).” Brief of appellant, p. 6. H.G. specifically testified that appellant

penetrated her with his fingers. While she did not use the word vagina at that time, in

the testimony at page 172, quoted above, she testified that he touched her vagina.

When asked if he inserted his penis or fingers she testified, “not this time.” Therefore,

when she shortly thereafter testifies that she and appellant were touching and “that time

he did insert his finger inside of me,” it is clear from the context that she was referring to

digital penetration of her vagina.

       {¶72} Because the state presented evidence to support convictions on only

three counts of sexual battery against H.G. and appellant was convicted of eight counts,
Richland County App. Case No. 2009CA0108                                                 14


appellate counsel was ineffective in failing to raise this issue on direct appeal. The first

and second assignments of error are sustained in part.

       {¶73} App. R. 26(B)(9) provides:

       {¶74} “If the court finds that the performance of appellate counsel was deficient

and the applicant was prejudiced by that deficiency, the court shall vacate its prior

judgment and enter the appropriate judgment. If the court does not so find, the court

shall issue an order confirming its prior judgment.”

       {¶75} In accordance with this rule, our December 20, 2010, judgment affirming

appellant’s judgment of conviction and sentence is vacated as to five of the eight counts

of sexual battery against H.G. Our December 20, 2010, judgment is confirmed in all

other respects.
Richland County App. Case No. 2009CA0108                                          15


      {¶76} The judgment of the Richland County Common Pleas Court convicting

appellant of five counts of sexual battery against H.G. is reversed and this cause is

remanded to that court for resentencing.




By: Edwards, J.

Hoffman, P.J. and

Wise, J. concur

                                                ______________________________



                                                ______________________________



                                                ______________________________

                                                            JUDGES
[Cite as State v. Picard, 2011-Ohio-6781.]


              IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
JOHN S. PICARD                                    :
                                                  :
                        Defendant-Appellant       :       CASE NO. 2009CA0108




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Richland County Court of Common Pleas is affirmed in part, and

reversed in part and remanded to the trial court for further proceedings.          Costs

assessed to appellee.




                                                      _________________________________


                                                      _________________________________


                                                      _________________________________

                                                                   JUDGES
