State v. Tyree , 2021 Ohio 2217 ( 2021 )

[Cite as State v. Tyree, 2021-Ohio-2217.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2020-CA-26
:
v. : Trial Court Case No. 2019-CR-631
:
CHARLES TYREE : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 30th day of June, 2021.
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IAN A. RICHARDSON, Atty. Reg. No. 0100124, Assistant Prosecuting Attorney, Clark
County Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
JEFFREY HUNTER, Atty. Reg. No. 0061364, 119 West Columbus Street, Pickerington,
Ohio 43147
Attorney for Defendant-Appellant
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TUCKER, P.J.
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{¶ 1} Appellant, Charles Tyree, appeals from his convictions for multiple counts of
pandering obscenity involving a minor and voyeurism. He asserts on appeal that the trial
court erred by allowing the State to make statements at the sentencing hearing regarding
conduct unrelated to the offenses to which he pleaded guilty. Finding no merit in this
argument, the trial court’s judgment will be affirmed.
Facts and Procedural History
{¶ 2} The Clark County grand jury indicted Tyree on eight counts: six counts of
pandering obscenity involving a minor, in violation of R.C. 2907.321(A)(1), second-degree
felonies; and two counts of voyeurism, in violation of R.C. 2907.08, fifth-degree felonies.
Ultimately, Tyree pleaded guilty to two counts of pandering obscenity involving a minor
(Counts 1 and 2), and the remaining counts were dismissed. The indicted conduct
involved Tyree’s then-ten-year-old daughter. Following completion of a presentence
investigation report (PSI), the trial court conducted a sentencing hearing and sentenced
Tyree to a prison term of 8 to 12 years on Count 1 and to 7 to 10 ½ years on Count 2.
The trial court ordered that the sentences be served consecutively, for an aggregate
prison sentence of 15 years to 19 years. This appeal followed.
Analysis
{¶ 3} Tyree’s sole assignment of error is as follows:
The trial court erred by allowing the prosecutor to enter hear-say [sic]
information negative to [Tyree] without any factual basis for said statements
during [the] sentencing [hearing].
Tyree suggests that this error requires a remand to the trial court so that an untainted
sentencing hearing may be conducted.
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{¶ 4} In a statement included in the PSI, Tyree reported that he installed a camera
in his bedroom, positioned in such a way that it would videotape individuals walking from
the bedroom into the adjoining bathroom. At the time, Tyree was living with his ex-wife,
who is also the mother of Tyree’s ten-year-old daughter. Tyree asserted in the PSI
statement that he installed the camera because he was fearful that his ex-wife and his
wife were working together in some fashion to make it appear that he was sexually
abusing his daughter. According to Tyree, the motive for their conduct was to prevent
him from gaining custody of his daughter. Tyree further stated “that the camera must
have caught [his daughter] walking to the shower after she had disrobed.” Tyree
additionally stated that, on two occasions, his daughter, who had “very long, thick hair,”
asked him to assist her as she washed her hair. Tyree stated that he was
“uncomfortable” with the request, but that he agreed to assist his daughter on the
condition that the event be videotaped. According to Tyree, his daughter agreed
because she “had been informed * * * of the situation with his ex-wife * * * .” Tyree’s PSI
statement further claimed “that somehow [a video depicting his daughter in the shower]
ended up in a chat room that is used for exchanging child pornography.” Tyree made
this claim despite his PSI admission that he was a member of the chat room, with the
disclaimer that he was a chat room member “only because he works [with] different law
enforcement agencies to try to trap child predators.”
{¶ 5} At the sentencing hearing, Tyree made similar claims, stating in part as
follows:
THE DEFENDANT: Yes, sir. Your Honor, thank you for the
opportunity to speak here today. I would like to start by saying how deeply
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and sincerely I - - I apologize for everything that’s happened.
First, I would like to apologize to my daughter. I never meant to put
you in harm’s way. You along with your brothers and sister, are my world.
I would die to keep you safe.
I love you all more than you could ever understand, and I’ll always
be here for you. Never think that any of this is your fault and most
importantly I - - * * *
Next, I would like to apologize to the Court and the State of Ohio. I
want to say that I take full responsibility for these two charges, and I want
to express the fact that I would never intentionally hurt any child, especially
my own.
As a survivor of childhood trauma, I would never, and could never,
allow the same thing to happen to my children.
What started out as a true and honest and genuine attempt to protect
my child, as well as myself, turned into something much worse. I’m truly a
good and genuinely honest person. My background, my life history as well
as my life devotion speaks to that. I’ve devoted myself to providing and
protecting and caring for my children at the age of 16 before I even knew
how to take care of myself.
I’ve devoted myself to doing so for my children and in many cases
sacrificing myself and my future to provide for my family.
***
Disposition Transcript p. 4-5.
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{¶ 6} The State, relying in part upon chat room conversations in the State’s
possession, then made the statement which is the subject of the pending appeal. The
contested statement was as follows:
MR HESKETT: Yes, Your Honor, briefly. You Honor, we did the
pre-sentence investigation and believe it to be fair and accurate.
I believe that Mr. Tyree struggles with a lot of his words where he
said about not intending to harm his daughter, because those are lies. I
believe in reviewing his version of the events, there is no accountability.
There is no remorse. Instead he casts blame and then claims ignorance
as to what he did.
He states, or the comments made are, that he sets this camera up
to protect himself because he had heard there is allegations going to be
made that he was sexually abusing his daughter.
In order to protect himself is by setting up a camera, and he says that
his daughter was in on it, that she knew. She knew. His intentions were
good. He was doing that to protect him.
He doesn’t’ have any idea how these videos, how these images,
were uploaded on the child pornography website. The Daddy Private
Group that he was a part of on the Kik application. It’s simply untrue. He
has no idea how they were posted in that chat room.
He said he admits to being a member of the child pornography chat
room. The evidence is there and the text messages with his conversations
will paint a clear picture of exactly what he was doing.
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Your Honor, I believe this is the worse form of offense because he’s
not just downloading these images. In fact, he’s creating them.
He’s creating these images of his own daughter, the subject matter
of the child pornography that he is creating and putting out there in the
universe, out there for the internet, to explore and sexually gratifying himself
to his daughter.
He is creating it with his 10-year-old daughter. His relationship with
his daughter allowed him to get close to her, allowed her to trust him,
allowed him the ability to do these things.
His words in these chats, you know, he’s “finally not dealing with just
collectors, ha ha.” You know, he’s creating these items. He’s trying to not
only just upload videos to get items in return, which he did.
His phone was filled with child pornography. But he’s doing it in
conversing about how to become sexually active. He’s discussing this
matter with other pedophiles in that group. How to become sexually active
with his own daughter. So he’s grooming her in these acts and exploring
different techniques in how to do that.
Homeland Security, a member, gets into this private group, and he
discusses these things with that member; and when asked if he’s active, he
says, “No, not yet.” But he’s working on it. He takes pictures every
chance he gets. He does it when he’s in the shower.
He has shower time with her. When he shares these images with
other users, he makes statements to go along with the pictures. He says,
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“Just got to watch my sexy daughter take a hot shower and help her.
Nothing like watching soap roll down her body.”
He uploads these pictures along with other ones that appear to be
proof that: This is actually my daughter. It’s my 10-year-old daughter.
One is her just sitting innocently on the couch. This is, you know, me with
her.
He’s in the picture. His tattoos are evident in the shower with his
daughter. He’s right there. He can do that. He’s grooming her.
When you go through some of these texts, I believe they are
important because it just shows what he’s doing. He’s asked what he’s
into by another member of the group. He says, “Young, eight to twelve.”
The person says, “Prove you’re real, mate.”
He says, “Really? I have been in this chat long enough I don’t have
to prove anything. Ask around. You will get the proof you need. CT7632
Phillip Na.” This is Charles Tyree. He shares pictures.
He’s asked, “Are you active together?”
“I can’t wait. LOL. It’s going to be amazing.”
Considering - - and then he gets into another discussion about
someone had asked for exchanging, and he says, “Considering I posted on
chat STR, sent to receive, do you really think I’m sending first? LOL. I’ve
been screwed over way too much. I am real (inaudible) and (inaudible) my
daughter, and will not be cheated. LOL.”
And he’s asked, “How old is she?”
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“10.”
“Active?”
“Not yet.” Well, he asked the other user if they are active, and they
said, “Yes.”
He says, “Nice.”
He’s asked by another member of the group, “Would you let me cam
with you and your daughter?” In other words watching with a video
camera.
“Why.”
“Because me and her don’t come together just yet, working towards
it. She’s not ready for that yet.”
“Cute. Has she seen your c***?” He’s asked.
“Yes, a few times. She’s walked in on me hacking off. I kept going.
She just stood there watching.”
He explains how stuff isn’t that hard-core yet, but it’s clear he’s
progressing.
He says he’s sick of some of the people on the chat, “I just want to
find someone to chat with and talk to and enjoys what I do.”
“Hey, if you’re legit, that’s awesome, because I am as well.” From
these other individuals.
“I have my daughter. LOL. I get new stuff from her at least every
other day.”
Then he finds a girl out there that has sexual relations with her father.
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“Oh okay, so I might have some questions for you. Maybe you can give
me some advice.”
“Okay, like?” She asks.
“Did you and your dad ever do anything? If so, what age? My
daughter is 10. Now, I’m trying to work her towards it, but not sure if there’s
a better way.”
She says that she’s 16. That she was 10 and was - -
MR. HUNTER: Your Honor?
MR. HESKETT: - - just started working her here in the last two
weeks.”
“How cool”
“How far did you get?”
“Right now we do shower time.”
MR. HUNTER: Your Honor, I hate to object. May we approach?
MR. HESKETT: I’m almost there, Your Honor.
MR. HUNTER: I think what we’re doing is reading hearsay
statements that really aren’t part of the two counts. If we had tried the case,
I would have had the opportunity to challenge these, but we reached an
agreement on two counts.
I think what’s being done now is getting statements in that would not
be admissible as he’s doing it now, and their credibility would be challenged
in terms of a lot of things.
But the point is I think we are getting outside - - well, I know we are
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getting outside the area of the two counts, and what it’s doing is smearing
my client with stuff to make him look worse than already these two charges
do with this background stuff, which has not in any way been verified,
frankly, and is not part of these charges but simply makes him look bad; but
part of the reason to enter the pleas was to not do this, and now they are
doing this.
THE COURT: Did you have a response?
MR. HESKETT: I believe this can be used to consider the
sentencing. The hearsay statements are the statements of the defendant.
Multiple counts were dismissed in the plea agreement. Nothing was
said that I could not put on record the facts of these chats.
I’ve got just two more to read and further they, you know, discount
his version of the events as he lays out that his intentions were good and
genuine, and that he has no idea how these items were put in the group.
THE COURT: I’ll overrule the objection.
MR. HESKETT: Thank you, Your Honor.
“Right now we do shower time. That’s why I’m slowly working on
me touching her. Been getting pictures of her in the shower as well.
Accidentally slipping fingers in between legs, been wresting, LOL,
smacking ass and grabbing (inaudible) clothes, things like that.”
That’s what he’s going to do to her. That’s what he’s doing.
***
Disposition Transcript p. 10-16.
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{¶ 7} Finally, the trial court stated the following regarding its perspective
concerning Tyree’s lack of remorse and his failure to take responsibility for his conduct:
THE COURT: I don’t find that the defendant has any genuine
remorse. I don’t believe he’s taken responsibility for his actions.
He indicates in his statement to the probation department that he
was a member of a child pornography chat room, but only because he
worked alongside different law enforcement agencies to try and trap child
predators.
That he has no idea how the videos got posted. He said he did not
send any of the messages in the chat room. He said that the videos of his
daughter were captured inadvertently because he had set up the camera to
protect himself.
***
Disposition Transcript p. 17-18.
{¶ 8} We recently stated the following regarding the information a trial court may
consider when making a sentencing determination:
* * * [A] trial court may rely on “a broad range of information” at sentencing.
State v. Bowser, 186 Ohio App.3d 162, 926 N.E.2d 714, 2010-Ohio-951,
¶ 13. “The evidence the court may consider is not confined to the evidence
that strictly relates to the conviction offense because the court is no longer
concerned * * * with the narrow issue of guilt.” Id. at ¶ 14 * * *. Among other
things, a court may consider hearsay evidence, prior arrests, facts
supporting a charge that resulted in an acquittal, and facts related to a
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charge that was dismissed under a plea agreement. Id. at ¶ 15-16 * * *.
“[B]ased on how the court perceives true facts in a case, it may believe that
the offender committed a crime other than, or in addition to, the one to which
he pleaded.” Id. at ¶ 20 * * *. Notably, a court may consider “allegations of
uncharged criminal conduct found in a PSI report[.]” Id. at ¶ 15 * * *.
State v. Butler, 2d Dist. Champaign No. 2020-CA-14, 2021-Ohio-603, ¶ 7, quoting State
v. Bodkins, Clark No. 10-CA-38, 2011-Ohio-1274, ¶ 43.
{¶ 9} Given the array of information a trial court may consider when coming to a
sentencing decision, there was nothing inappropriate with the State’s statements at the
sentencing hearing. Moreover, the contested statements were made in reaction to
Tyree’s PSI and his own sentencing hearing statements, which attempted to deflect
responsibility for the conduct to which he pleaded guilty. Such a response was fair and
appropriate. But, even if the statements were objectionable, the trial court’s conclusions
regarding Tyree’s lack of remorse and failure to take responsibility for his conduct were
prompted by Tyree’s statements, not anything said by the State at the sentencing hearing.
Based upon these considerations, we overrule Tyree’s sole assignment of error.
Conclusion
{¶ 10} Having overruled Tyree’s assignment of error, the judgment of the Clark
County Common Pleas Court is affirmed.
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HALL, J. and WELBAUM, J., concur.
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Copies sent to:
Ian A. Richardson
Jeffrey Hunter
Hon. Douglas M. Rastatter