[Cite as State v. Bautista, 2016-Ohio-5436.]

 

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 CLARK COUNTY 

STATE OF OHIO 

Plaintiff-Appellee 

v. 

JULIO BAUTISTA 

Defendant-Appellant 

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Appellate Case No. 2015-CA-74 

Trial Court Case No. 15-CR-32 

(Criminal Appeal from 

 Common Pleas Court) 

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O P I N I O N 

Rendered on the 19th day of August, 2016. 

. . . . . . . . . . . 

MEGAN M. FARLEY, Atty. Reg. No. 0088515, Clark County Prosecutor’s Office, 50 East 

Columbia Street, Suite 449, Springfield, Ohio 45502 

 Attorney for Plaintiff-Appellee 

 

BRENT E. RAMBO, Atty. Reg. No. 0076969, Flanagan, Lieberman, Hoffman & Swaim, 

15 West Fourth Street, Suite 250, Dayton, Ohio 45402 

 Attorney for Defendant-Appellant 

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HALL, J. 

{¶ 1} Julio Bautista appeals from his conviction and sentence following a 

negotiated guilty plea to one count of illegal use of a minor in nudity-oriented material and 
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one count of gross sexual imposition. 

{¶ 2} In his sole assignment of error, Bautista challenges the trial court’s imposition 

of consecutive sentences. Specifically, he contends the record does not support the trial 

court’s consecutive-sentence findings under R.C. 2929.14(C)(4). 

{¶ 3} The record reflects that Bautista was charged in a 16-count indictment in 

January 2015. The charges included 10 counts of illegal use of a minor in nudity-oriented 

material, one count of pandering sexually-oriented material involving a minor, four counts 

of gross sexual imposition, and one count of intimidation of a crime victim. The victim of 

the offenses was his girlfriend’s 12-year-old daughter. According to a bill of particulars, 

the offenses involved Bautista taking nude photographs of the child, photographing her 

grabbing a penis, rubbing her breasts and vagina, and threatening to kill her family if she 

reported what he was doing. 

{¶ 4} Bautista ultimately entered into a plea agreement with the State. He agreed 

to plead guilty to one count of illegal use of a minor in nudity-oriented material, a seconddegree felony, and one count of gross sexual imposition, a third-degree felony, in 

exchange for the dismissal of all other counts and the preparation of a PSI report. (Plea 

Tr. at 4-5). The trial court accepted the plea and found Bautista guilty. (Id. at 11). At 

sentencing, the trial court imposed consecutive prison terms of seven years for illegal use 

of a minor in nudity-oriented material and five years for gross sexual imposition. 

(Sentencing Tr. at 10-11). In support of the consecutive sentences, the trial court made 

the following findings: 

 I do agree with the State of Ohio that consecutive sentences are 

necessary to protect the public from future crime and to punish the 
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defendant and that they are not disproportionate to the seriousness of his 

conduct and to the danger he poses to the public. 

 And that these offenses were committed as part of a course of 

conduct and the harm caused by the offenses was so great or unusual that 

no single prison term for any of the offenses committed adequately reflects 

the seriousness of the defendant’s conduct. And that’s clear to the Court 

from the victim impact statements, and that it may have been made part of 

the pre-sentence report. 

 I’ve read a victim impact statement from the mother of the victim and 

then one from the victim herself. It’s clear that there’s been serious 

psychological harm to the victim. 

 She was twelve years old. These offenses occurred in her own 

home, a home where she is certainly entitled to feel safe. It appears from 

her victim impact statement that she is having a very difficult time dealing 

with the aftermath of these offenses. 

(Id. at 9-10). 

{¶ 5} On appeal, Bautista contends the record does not support the trial court’s 

consecutive-sentence findings. His argument implicates R.C. 2929.14(C)(4), which 

permits consecutive prison terms 

if the court finds that the consecutive service is necessary to protect the 

public from future crime or to punish the offender and that consecutive 

sentences are not disproportionate to the seriousness of the offender’s 

conduct and to the danger the offender poses to the public, and if the court 
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also finds any of the following: 

 * * * 

 (b) At least two of the multiple offenses were committed as part of one or 

more courses of conduct, and the harm caused by two or more of the 

multiple offenses so committed was so great or unusual that no single 

prison term for any of the offenses committed as part of any of the courses 

of conduct adequately reflects the seriousness of the offender’s conduct. 

{¶ 6} Here the trial court made the foregoing findings. We review those findings 

under the standard set forth in R.C. 2953.08(G)(2), which authorizes us to vacate 

Bautista’s consecutive sentences if we clearly and convincingly find that the record does 

not support the trial court’s findings. See State v. Marcum, Ohio Sup. Ct. Slip Opinion No. 

2016-Ohio-1002, ¶ 10. 

{¶ 7} Bautista argues that the record fails to support any of the trial court’s findings 

under R.C. 2929.14(C)(4). First, he contends consecutive sentences were not necessary 

to protect the public or to punish him. (Appellant’s brief at 4). He points out that he has no 

prior criminal record, that he is remorseful, and that, as a non-citizen, he likely will be 

deported to Mexico upon his release from prison. Second, he contends consecutive 

sentences are disproportionate to the seriousness of his conduct and to the danger he 

poses to the public. He maintains that the existence of some psychological harm to the 

victim is not enough to support such a conclusion. (Id. at 4-5). Finally, he contends the 

harm he caused is not so great or unusual that no single prison term adequately would 

reflect the seriousness of his conduct. He asserts that the record does not reveal anything 

making his case “great or unusual” in relation to other cases involving the illegal use of a 
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minor in nudity-oriented material and gross sexual imposition. 

{¶ 8} Upon review, we find Bautista’s assignment of error to be unpersuasive. We 

do not clearly and convincingly find that the record fails to support the trial court’s 

consecutive-sentence findings. Documents attached to the PSI report reflect that Bautista 

took photographs of the 12-year-old victim’s exposed breasts, stomach, and vagina. 

Those documents also reflect that he touched, kissed, and pinched her breasts and that 

he rubbed and pinched her vagina. According to the victim, Bautista exposed his penis to 

her and threatened to kill her family if she reported his actions. The victim stated that the 

incidents occurred in her bedroom at night, often when she was sleeping, and that 

Bautista removed her clothing. She reported that he sometimes forcibly held her down 

and refused to stop despite her pleas. 

{¶ 9} The record includes victim-impact statements from the victim and her mother. 

The mother reported that she became depressed and could not sleep or work much after 

Bautista’s crimes were discovered. She has suffered financially, emotionally, and 

physically and was hospitalized for several days. Bautista’s actions also have damaged 

her relationship with her daughter, who exhibits anger and now has behavioral problems 

in school. The mother concluded by stating that Bautista had “destroyed” her life. 

{¶ 10} We have also reviewed the victim impact statement of the child victim. It too 

supports the trial court’s conclusions. The statement confirms the seriousness of the 

offender’s conduct and that consecutive sentences are not disproportionate thereto. 

{¶ 11} In our view, the facts of this case support the imposition of consecutive 

sentences. The record supports a finding that 41-year-old Bautista preyed on the young 

child of his live-in girlfriend between September 2014 and January 2015. Upon being 
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discovered, he denied knowing how nude photographs of the victim had gotten on his cell 

phone. Later, in connection with the presentence investigation, he claimed the victim had 

started “kissing [him] and grabbing [his] ass” before eventually asking him to take nude 

photos of her. Regarding the alleged touching, he claimed the 12-year-old child simply 

had asked him to help her change her clothes. 

{¶ 12} Although Bautista has no meaningful prior record, he engaged in criminal 

sexual activity with a pre-teen child over an extended period of time, initially trying to 

conceal his actions and then lying and/or minimizing what he had done. Although he only 

pled guilty to one count of illegal use of a minor in nudity-oriented material and one count 

of gross sexual imposition, the trial court was entitled to consider the facts associated 

with the other 14 felony counts that were dismissed as part of the plea agreement. See, 

e.g., State v. Clemons, 2d Dist. Montgomery No. 26038, 2014-Ohio-4248, ¶ 8 

(recognizing that a trial court at sentencing may take into consideration hearsay evidence, 

facts related to charges that were dismissed pursuant to a plea bargain, and allegations 

contained in a PSI report). Based on the record before us, the trial court certainly could 

have concluded that consecutive sentences were necessary to protect the public from 

future crime or to punish Bautista and that consecutive sentences were not 

disproportionate to the seriousness of his conduct and to the danger he poses to the 

public. We are unpersuaded that Bautista does not pose a danger to the public because 

he is likely to be deported upon his release from prison. See State v. Balbi, 8th Dist. 

Cuyahoga No. 102321, 2015-Ohio-4075, ¶ 10 (“Balbi next argues that consecutive 

sentences were unnecessary to protect the public because he will be deported after 

serving his prison sentence. Assuming the certainty of Balbi’s deportation, it is not a valid 
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reason to find that it supersedes the state’s interest in punishing him and that he will not 

resume his activity elsewhere.”). Finally, the trial court certainly could have concluded 

based on the victim-impact statements that the harm caused by Bautista’s offenses was 

so great or unusual that no single prison term adequately would reflect the seriousness 

of his conduct. 

{¶ 13} For the reasons set forth above, we overrule the assignment of error and 

affirm the judgment of the Clark County Common Pleas Court. 

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FAIN, J., and FROELICH, J., concur. 

Copies mailed to: 

Megan M. Farley 

Brent E. Rambo 

Hon. Douglas M. Rastatter