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7th District issues partial reversal in child sex case
TRACEY BLAIR
Legal News Reporter
Published: September 26, 2019
The 7th District Court of Appeals has reversed an attempted gross sexual imposition conviction in a Monroe County child sex case.
William D. Peyatt appealed his convictions for gross sexual imposition, attempted gross sexual imposition and disseminating matter harmful to juveniles. He was indicted on eight counts in June 2017 for sex crimes against two alleged victims, K.B. and A.B.
At trial, A.B. testified Peyatt touched her private areas over the top of her clothes when she was 12 years old on at least two occasions. She also told the jury he showed her pictures of his penis on his phone and threatened her if she told anyone. K.B. said she was a victim of similar crimes when she was around 11 years old.
Peytatt was found not guilty of rape and unlawful sexual conduct with minor charges. He was sentenced to 22 ½ years in prison on the other counts – 60 months for each gross sexual imposition conviction, 12 months for disseminating harmful materials and 18 months for attempted gross imposition.
He argued there was not sufficient evidence for the attempted GSI charge. The appellate panel agreed.
Seventh District Judge Carol Ann Robb noted that “sexual contact” under R.C. 2907.01(B) means touching an erogenous zone of another to sexually arouse or gratify either person.
“The issue in this case is whether the act of saying look and exposing his penis is sufficient evidence of attempted gross sexual imposition,” Robb said in her opinion. “Case law for attempt of a sex crime usually concerns attempted rape. The Ohio Supreme Court has explained for attempt to have occurred there must be a substantial step toward engaging in the sexual conduct (State v. Davis, 1996-5th Dist.)
“… It has been found that removing a victim’s clothing alone is insufficient evidence of attempted rape. (Davis at 114). However, if the defendant expresses a desire to have sex with the victim and attempts to remove the victims pants during a struggle, that is sufficient evidence of attempted rape. (State v. Lucas, 2006-5th Dist. Tuscarawas). Or, if the defendant is found standing over the victim with his pants partially removed and he is attempting to remove the victim’s pants, that is sufficient evidence of attempted rape. (State v. Brown, 1982-8th Dist., Cuyahoga). But it has also been found that grabbing the victim by the back of the neck, holding a knife to her throat, and ordering her to remove her clothing is not sufficient to demonstrate attempted rape.” (State v. Jones, 2004-8th Dist., Cuyahoga).
Robb noted that there was no evidence Peyatt moved toward the victim or tried to make her touch his penis. The state argued the prior touching and exposure was Peyatt grooming the girl for further sexual encounters.
“Admittedly, it is not normal behavior for a 31-year-old male to purposely expose his penis to a 12-year-old child,” Robb said in the opinion. “However, even when considering the evidence in the light most favorable to the prosecution, merely exposing oneself and saying, `Look,’ is insufficient evidence for the crime of attempted gross sexual imposition.”
Peyatt also alleged he was deprived of a fair trial when the trial court failed to give a curative instruction, and that jurors saw him in the hallway of the courthouse in shackles during voir dire. The appellate court found no merit in those arguments.
Appellate judges Gene Donofrio and David A. D’Apolito concurred.
The case is cited State v. Peyatt, 2019-Ohio-3585.