[Cite as State v. Picard,

.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. W. Scott Gwin, P.J. Plaintiff - Appellee : Hon. Sheila G. Farmer, J. : Hon. Craig R. Baldwin, J. : -vs- : : JOHN S. PICARD : Case No. 13CA95 : : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Case No. 2008 CR 545 and 2009 CR 111

JUDGMENT: Affirmed

DATE OF JUDGMENT: June 27, 2014

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JAMES J. MAYER, JR. JAMES L. BLUNT, II Prosecuting Attorney 445 West Longview Avenue Mansfield, OH 44903 By: JILL M. COCHRAN Assistant Prosecuting Attorney 38 South Park Street Mansfield, OH 44902 Richland County, Case No. 13CA95 2

Baldwin, J.

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

Common Pleas Court resentencing him following this Court’s judgment vacating

convictions of five counts of sexual battery. 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

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 Richland County, Case No. 13CA95 3

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.

{¶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 Richland County, Case No. 13CA95 4

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

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 Richland County, Case No. 13CA95 5

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 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 Richland County, Case No. 13CA95 6

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

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 Richland County, Case No. 13CA95 7

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. This

Court affirmed the judgment on appeal. State v. Picard, 5th Dist. Richland No.

2009CA0108, 2010-Ohio- 6358.

{¶16} Appellant filed a motion to reopen his appeal, arguing that counsel was

ineffective for failing to raise a claim of insufficient evidence as to six of the eight counts

of sexual battery against H.G. We granted the motion to reopen, and upon reopening

found the evidence sufficient to support three of the eight counts of sexual battery Richland County, Case No. 13CA95 8

against H.G. We reversed the convictions on the remaining five counts and remanded

to the trial court for resentencing. State v. Picard, 5th Dist. Richland No. 2009CA0108,

2011-Ohio- 6781.

{¶17} On remand, the court dismissed counts twelve through sixteen of the

indictment, and resentenced appellant on counts nine through eleven. Appellant was

sentenced to five years incarceration on Count 9, to run consecutive to counts 1, 5, and

10 and to counts 1, 9, 17 and 19 of Case No. 09-CR-111. He was sentenced to five

years incarceration on Count 10, to run consecutive to counts 1, 5 and 9, and to counts

1, 9, 17 and 19 of Case No. 09-CR-111. On Count 11 he was sentenced to one year, to

run concurrent to all other charges.

{¶18} Appellant assigns two errors to this Court on appeal of his resentencing:

{¶19} “I. WHETHER THE TRIAL COURT VIOLATED THE DEFENDANT’S

DUE PROCESS RIGHTS BY RE-SENTENCING AND VACATING THE CHARGES ON

REMAND THAT THE TRIAL COURT RAN CONCURRENT WHERE IT WAS

UNCLEAR WHICH COUNTS THAT THE APPEALS COURT VACATED.

{¶20} “II. WHETHER THE TRIAL COURT ERRED BY RE-SENTENCING THE

DEFENDANT TO THE SAME TERM WHERE THE APPELLATE COURT VACATED

FIVE COUNTS OF SEXUAL BATTERY.”

I.

{¶21} Appellant argues that the court erred in vacating the convictions on counts

12-16, where the sentences had been ordered to run concurrently. Appellant argues

that it was unclear which counts were vacated by this Court, and the trial court should

have allowed him to elect which counts to vacate. Richland County, Case No. 13CA95 9

{¶22} All eight charges of sexual battery related to H.G. were indicted identically,

as follows:

{¶23} “COUNT IX through Count XVI: JOHN S. PICARD . . . on or between the

26th day of October, 1991 and the 30th day of November, 1993, at the County of

Richland, did engage in sexual conduct with another, not the spouse of the offender, the

offender knowingly coerces the other person to submit by any means that would prevent

resistance by a person of ordinary resolution, in violation of section 2907.03(A)(1) of the

Ohio Revised Code, a felony of the third degree.”

{¶24} Similarly, the Bill of Particulars grouped all eight counts together in which

H.G. was the victim. The verdict forms also used the language of the indictment and

are identical on all eight counts.

{¶25} In our 2011 opinion following the reopening of the appeal, this Court found

that H.G.’s testimony supported convictions on only three counts, as she testified to only

three incidents of sexual conduct with appellant. We therefore reversed on five counts

and remanded for resentencing. Appellant is correct that this Court’s prior opinion did

not specify which counts to vacate; however, due to the manner in which the case was

indicted and tried, it was not possible or necessary to tie the reversals specifically to the

counts of the indictment in which H.G. was the victim because all counts related to H.G.

were identical.

{¶26} Further, after a reversal and remand for resentencing, a greater or lesser

sentence could result. State v. Mitchell, 6th Dist. Erie No. E-11-039,

,

¶10, citing North Carolina v. Pearce,

,

(1969). Because

we remanded for resentencing, the court could have elected to sentence appellant to Richland County, Case No. 13CA95 10

five years consecutive on two of the counts and one year concurrent on the remaining

count regardless of which of the identical counts the court chose to vacate. The court

conducted a resentencing hearing in which appellant addressed the court concerning

his time in prison, counsel for appellant spoke concerning appellant’s exemplary record

in prison, and appellant’s mother spoke on his behalf. The fact that appellant received

the same aggregate sentence on resentencing was not related to the court’s decision to

vacate counts twelve to sixteen.

{¶27} The first assignment of error is overruled.

II.

{¶28} In his second assignment of error, appellant argues that the court erred in

resentencing him to the same term despite vacating five counts. Appellant argues that

pursuant to R.C. 2929.11 and R.C. 2929.12, the seriousness of his crime was

substantially decreased when five counts were vacated, yet his aggregate term of

incarceration remained the same.

{¶29} The trial court sentenced appellant to five years incarceration on count

nine and five years on count ten, to be served consecutively. The court sentenced

appellant to one year incarceration on count eleven, to be served concurrently.

Appellant’s aggregate sentence was forty years both before and after resentencing.

{¶30} The Supreme Court of Ohio in State v. Kalish,

, 2008–

Ohio–4912,

, set forth a two step process for examining felony

sentences. The first step is to “examine the sentencing court's compliance with all

applicable rules and statutes in imposing the sentence to determine whether the

sentence is clearly and convincingly contrary to law.” Id. at ¶ 4. If this first step is Richland County, Case No. 13CA95 11

satisfied, the second step requires that the trial court's decision be reviewed under an

abuse of discretion standard. Id. An abuse of discretion implies that the court's attitude

is unreasonable, arbitrary, or unconscionable. Id. at ¶ 19.

{¶31} R.C. 2929.11 sets forth the purposes of felony sentencing:

{¶32} “(A) A court that sentences an offender for a felony shall be guided by the

overriding purposes of felony sentencing. 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 government

resources. To achieve those purposes, the sentencing court shall consider the need for

incapacitating the offender, deterring the offender and others from future crime,

rehabilitating the offender, and making restitution to the victim of the offense, the public,

or both.

{¶33} “(B) A sentence imposed for a felony shall be reasonably calculated to

achieve the two overriding purposes of felony sentencing set forth in division (A) of this

section, 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.

{¶34} “(C) A court that imposes a sentence upon an offender for a felony shall

not base the sentence upon the race, ethnic background, gender, or religion of the

offender.”

{¶35} R.C. 2929.12 sets forth the factors the court is to consider in felony

sentencing: Richland County, Case No. 13CA95 12

{¶36} “(A) Unless otherwise required by section 2929.13 or 2929.14 of the

Revised Code, a court that imposes a sentence under this chapter upon an offender for

a felony has discretion to determine the most effective way to comply with the purposes

and principles of sentencing set forth in section 2929.11 of the Revised Code. In

exercising that discretion, the court shall consider the factors set forth in divisions (B)

and (C) of this section relating to the seriousness of the conduct, the factors provided in

divisions (D) and (E) of this section relating to the likelihood of the offender's recidivism,

and the factors set forth in division (F) of this section pertaining to the offender's service

in the armed forces of the United States and, in addition, may consider any other factors

that are relevant to achieving those purposes and principles of sentencing.

{¶37} “(B) The sentencing court shall consider all of the following that apply

regarding the offender, the offense, or the victim, and any other relevant factors, as

indicating that the offender's conduct is more serious than conduct normally constituting

the offense:

{¶38} “(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.

{¶39} “(2) The victim of the offense suffered serious physical, psychological, or

economic harm as a result of the offense.

{¶40} “(3) The offender held a public office or position of trust in the community,

and the offense related to that office or position.

{¶41} “(4) The offender's occupation, elected office, or profession obliged the

offender to prevent the offense or bring others committing it to justice. Richland County, Case No. 13CA95 13

{¶42} “(5) The offender's professional reputation or occupation, elected office, or

profession was used to facilitate the offense or is likely to influence the future conduct of

others.

{¶43} “(6) The offender's relationship with the victim facilitated the offense.

{¶44} “(7) The offender committed the offense for hire or as a part of an

organized criminal activity.

{¶45} “(8) In committing the offense, the offender was motivated by prejudice

based on race, ethnic background, gender, sexual orientation, or religion.

{¶46} “(9) If the offense is a violation of section 2919.25 or a violation of section

2903.11, 2903.12, or 2903.13 of the Revised Code involving a person who was a family

or household member at the time of the violation, the offender committed the offense in

the vicinity of one or more children who are not victims of the offense, and the offender

or the victim of the offense is a parent, guardian, custodian, or person in loco parentis of

one or more of those children.

{¶47} “(C) The sentencing court shall consider all of the following that apply

regarding the offender, the offense, or the victim, and any other relevant factors, as

indicating that the offender's conduct is less serious than conduct normally constituting

the offense:

{¶48} “(1) The victim induced or facilitated the offense.

{¶49} “(2) In committing the offense, the offender acted under strong

provocation.

{¶50} “(3) In committing the offense, the offender did not cause or expect to

cause physical harm to any person or property. Richland County, Case No. 13CA95 14

{¶51} “(4) There are substantial grounds to mitigate the offender's conduct,

although the grounds are not enough to constitute a defense.

{¶52} “(D) The sentencing court shall consider all of the following that apply

regarding the offender, and any other relevant factors, as factors indicating that the

offender is likely to commit future crimes:

{¶53} “(1) At the time of committing the offense, the offender was under release

from confinement before trial or sentencing, under a sanction imposed pursuant to

section 2929.16, 2929.17, or 2929.18 of the Revised Code, or under post-release

control pursuant to section 2967.28 or any other provision of the Revised Code for an

earlier offense or had been unfavorably terminated from post-release control for a prior

offense pursuant to division (B) of section 2967.16 or section 2929.141 of the Revised

Code.

{¶54} “(2) The offender previously was adjudicated a delinquent child pursuant

to Chapter 2151. of the Revised Code prior to January 1, 2002, or pursuant to Chapter

2152. of the Revised Code, or the offender has a history of criminal convictions.

{¶55} “(3) The offender has not been rehabilitated to a satisfactory degree after

previously being adjudicated a delinquent child pursuant to Chapter 2151. of the

Revised Code prior to January 1, 2002, or pursuant to Chapter 2152. of the Revised

Code, or the offender has not responded favorably to sanctions previously imposed for

criminal convictions.

{¶56} “(4) The offender has demonstrated a pattern of drug or alcohol abuse that

is related to the offense, and the offender refuses to acknowledge that the offender has Richland County, Case No. 13CA95 15

demonstrated that pattern, or the offender refuses treatment for the drug or alcohol

abuse.

{¶57} “(5) The offender shows no genuine remorse for the offense.

{¶58} “(E) The sentencing court shall consider all of the following that apply

regarding the offender, and any other relevant factors, as factors indicating that the

offender is not likely to commit future crimes:

{¶59} “(1) Prior to committing the offense, the offender had not been adjudicated

a delinquent child.

{¶60} “(2) Prior to committing the offense, the offender had not been convicted

of or pleaded guilty to a criminal offense.

{¶61} “(3) Prior to committing the offense, the offender had led a law-abiding life

for a significant number of years.

{¶62} “(4) The offense was committed under circumstances not likely to recur.

{¶63} “(5) The offender shows genuine remorse for the offense.”

{¶64} Although five counts were vacated, appellant remained convicted of 37

counts of sexual battery in which the victims were young girls he met through his job as

a youth pastor at the church they attended. Three counts remained in which H.G. was

the victim. She testified that she 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 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 Richland County, Case No. 13CA95 16

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.

{¶65} The evidence reflects that appellant used his position as youth pastor at

the church and the relationship he had with H.G. and the other girls resulting from his

position in their church to manipulate them into sexual activity. The court stated at the

resentencing hearing:

{¶66} “Mainly, he’s here for being a bad steward of the charges he assumed

when he became a youth minister and assumed authority over young people. A high

calling, and he failed. Some, maybe all of us, have failed from time to time. The

prosecutor has pointed out that this wasn’t just a one-time situation where a person got

overwrought and did something that was illegal, sinful, wrong. This was [sic] occasions

when this gentleman misused and abused his position of trust at a time when these

young girls, young women, needed someone of strength and good character to provide

them with a basis for living the rest of their lives. And in some ways, as I think everyone

acknowledges, they were damaged to the core; that all their life, they’re going to realize

that they were tricked and fooled and mistreated and abused. What they’ll make with

that, I don’t know, but nor do they know. But they’ve been damaged substantially.” Tr.

26. Richland County, Case No. 13CA95 17

{¶67} Further, appellant had an opportunity to speak at the resentencing

hearing, and did not demonstrate genuine remorse for his actions. Instead, he spoke

about how difficult prison had been for him and how extreme and painful the five years

he had served in prison had been. Tr. 20-22.

{¶68} The trial court did not abuse its discretion in sentencing appellant to five

years incarceration on counts nine and ten, to be served consecutively, even though the

aggregate term of his sentence remained unaffected by the dismissal of five counts.

{¶69} The second assignment of error is overruled. The judgment of the

Richland County Common Pleas Court is affirmed. Costs are assessed to appellant.

By: Baldwin, J.

Gwin, P.J. and

Farmer, J. concur.