Summary
The Ohio Third District Court of Appeals reversed the defendant's criminal conviction for gross sexual imposition and related charges, remanding the case for a new trial. The appellate court held that the trial court erred by permitting the jury to consider the defendant's prior convictions as sentencing enhancement factors and prejudicial admissions, finding that the relevant statute did not include attempted offenses for enhancement purposes and that the prior convictions lacked relevance and were highly prejudicial.
Topics
Practice areas
Questions Presented
- Whether a prior conviction for attempted gross sexual imposition constitutes a prior conviction of a violation of R.C. 2907.05 for purposes of the mandatory-penalty provision in R.C. 2907.05(C)(2).
- Whether the defendant's prior GSI convictions involving fourteen- and fifteen-year-old victims, and extraneous details concerning the attempted GSI conviction, were relevant and admissible before the jury.
- Whether the cumulative effect of the trial court's errors deprived Risch of a fair trial and required reversal for a new trial.
Holdings
- A prior conviction for attempted gross sexual imposition is not a prior conviction of a violation of R.C. 2907.05 and therefore does not enhance the penalty under R.C. 2907.05(C)(2), because the statute does not expressly include attempt within its enhancement provision.
- The trial court erred by submitting to the jury admissions concerning GSI convictions involving fourteen- and fifteen-year-old victims and by including unnecessary and highly prejudicial details concerning the attempted GSI conviction.
- The cumulative effect of the errors deprived Risch of a fair trial and required reversal of the convictions and remand for a new trial.
Key quotations
“a conviction for an attempted crime is not converted into, or interchangeable with, a conviction for the underlying crime. For example, a conviction for attempted rape is not a conviction for rape, except with a lesser penalty. It is a conviction for attempted rape, which is a separate crime.” (¶ 20)
“Simply put, by reviewing the plain statutory language, and the case authority interpreting “attempted” violations of various statutes, we find that it was error for the trial court to determine that “Attempted GSI” enhanced the penalty in this case under R.C. 2907.05(C)(2).” (¶ 30)
“The existence of a prior offense is such an inflammatory fact that ordinarily it should not be revealed to the jury unless specifically permitted under statute or rule.” (¶ 34)
“We also find that the introduction of Defense Exhibit A was erroneous because it contained extraneous, inadmissible, and highly inflammatory information.” (¶ 38)
Factual background
Risch was charged with gross sexual imposition, attempted gross sexual imposition, disseminating matter harmful to juveniles, and public indecency arising from alleged interactions with two child victims. The State sought to use Risch's prior attempted GSI conviction involving a child under thirteen to trigger the mandatory-prison-term provision in R.C. 2907.05(C)(2). The trial court also permitted the jury to receive admissions concerning two prior GSI convictions involving fourteen- and fifteen-year-old victims, although those convictions did not satisfy the statute's age requirement for enhancement.
Procedural history
A ten-count indictment was returned against Risch on August 10, 2023. Before trial, the trial court ruled that a prior attempted gross-sexual-imposition conviction constituted an enhancing offense under R.C. 2907.05(C)(2), and a written admission concerning that conviction and two other GSI convictions was submitted to the jury. The jury convicted Risch on the remaining counts after two counts were dismissed and two additional counts were acquitted under Crim.R. 29. The trial court sentenced him on May 20, 2024, and the appellate court reversed and remanded for a new trial.
Remand instructions
The trial court must conduct further proceedings consistent with the appellate opinion, including a new trial. The appellate court also directed that its judgment and opinion be certified to the trial court as the mandate under App.R. 27.