The Akron Legal News

Man who shared sexually explicit photos of his grandchildren loses appeal

ANNIE YAMSON
Special to the Legal News
Published: July 1, 2015

A Medina County man who was given maximum and consecutive sentences for pandering obscenity involving minors had his sentence confirmed recently by the 9th District Court of Appeals.

The defendant, David Thomas, was ordered to serve a total of 16 years in prison by the Medina County Court of Common Pleas.

He was originally indicted by a grand jury on 16 counts of pandering obscenity involving a minor and 10 counts of pandering sexually oriented matter involving a minor.

Thomas pleaded no contest to each of the charges and the forfeiture specifications that were included with them.

Case summary states that Thomas took sexually explicit photos of his young grandchildren and shared the images on social media by trading them for photos of other young children.

According to his presentence investigation report, Thomas told police that he began photographing the children in a state of nudity while babysitting them for his stepdaughter, the children’s mother, after his own wife died.

Thomas admitted to several sexual acts with the children, mostly involving inappropriate touching.

When asked by the probation department why he committed the offenses, Thomas responded, “I honestly can’t tell you. I don’t know, I guess it was gratification.”

After reviewing the presentence investigation report, the Medina County court held a sentencing hearing during which Thomas apologized for his actions.

“I understand the gravity of what I did. I know that my stepdaughter loved me and trusted me and I violated that trust, that I did the same with my grandchildren, her children,” Thomas told the trial court. “I have to live with myself forever, no matter what you do, I have to live with my conscience.”

The trial court proceeded to find Thomas guilty on all 26 counts.

It imposed eight-year prison terms for each count and ordered two of the sentences to run consecutively for a total of 16 years in prison.

Thomas was also required to register as a Tier II sex offender and serve a mandatory five years of postrelease control.

In his direct appeal to the 9th District court, Thomas raised only one assignment of error in which he argued that his sentence was disproportionate to the convicted offense.

According to Thomas, several mitigating factors worked in his favor including his lack of a prior prison sentence and his expression of remorse.

Thomas also argued that consecutive eight-year sentences “exceed the bounds of reason.”

He also pointed out that the same sentencing judge had recently imposed a 15-year sentence in a case that involved a drunk driver and a stolen car, a case that was nothing like his own.

“Mr. Thomas cannot show that his sentences for the charged offenses, which he does not contest were within the statutory range, were clearly and convincingly contrary to law,” Judge Beth Whitmore wrote on behalf of the court of appeals. “Nor can Mr. Thomas show an abuse of discretion by the trial court.”

Whitmore noted that, under R.C. 2929.11, the overriding purposes of felony sentencing are “to protect the public from future crime by the offender and others and to punish the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local resources.”

Additionally, trial courts are required to consider the factors listed in R.C. 2929.12 before imposing maximum sentences, though they are not required to make findings on the record.

Among the various factors that a trial court may consider under the statute are whether the injury suffered exacerbated physical or mental injury due to the defendant’s actions, whether serious physical, psychological or economic harm was caused, whether the defendant’s relationship to the victim facilitated the crime, whether the offender has a history of criminal conduct and whether he shows remorse.

“The (trial) court specifically noted the vulnerable ages of the victims, who were four and six at the time of sentencing,” Whitmore wrote. “The court also had before it a statement from the children’s mother, who explained that the children exhibited a fearful disposition and that Mr. Thomas’ granddaughter had a continuing need for medical care due to a fear of using the bathroom and accidents.”

Whitmore noted that it was particularly important to the trial court that Thomas took advantage of his relationship to the kids in order to perpetrate the abuse.

“You count on your kin watching out for you; you don’t have anything else in the world if you’re four and six” the trial court stated on the record at sentencing. “No matter who you are, no matter how old you are, no matter what you’ve done, you’ve got your kin, you’ve got those folks who love you. If you don’t have those folks, what do you have? You have nothing.”

The trial court went on to note that Thomas had no prior offenses.

“Accordingly, even though Mr. Thomas had not previously served jail time, and purported to feel remorse for his actions, the trial court did not act in an arbitrary, unreasonable or unconscionable manner in assessing the relevant factors under R.C. 2929.12 and finding that any mitigating circumstances were outweighed by the vulnerable age of the victims, the psychological harm to the victims and the fact that Mr. Thomas used his relationship of trust as the victims’ grandfather to facilitate the abuse,” Whitmore wrote.

The appellate panel held that nothing in the record indicated that the trial court abused its discretion in sentencing Thomas to the maximum allowable prison term on each count.

Instead, it held that the evidence supported the trial court’s decision.

“Mr. Thomas’ sole assignment of error is overruled,” Whitmore concluded. “The judgment of the Medina County Court of Common Pleas is affirmed.”

Presiding Judge Jennifer Hensal and Judge Donna Carr joined Whitmore to form the majority.

The case is cited State v. Thomas, 2015-Ohio-2195.

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