State v. York , 2021 Ohio 1591 ( 2021 )

[Cite as State v. York, 2021-Ohio-1591.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109054
v. :
ANDARI KARRON YORK, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: May 6, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-636583-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Brad Meyer, Assistant Prosecuting
Attorney, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and
Paul A. Kuzmins, Assistant Public Defender, for
appellant.
MARY J. BOYLE, A.J.:
Defendant-appellant, Ahdari York, appeals his conviction and
sentence.1 He raises five assignments of error for our review:
1. The trial court erred in failing to suppress Mr. York’s statement
where the waiver of his Miranda rights was not knowingly, intelligently
and voluntarily made.
2. The trial court’s sentence is contrary to law.
3. The state’s evidence was insufficient to sustain a conviction for sexual
battery.
4. The conviction for sexual battery is against the manifest weight of the
evidence.
5. The trial court erred in instructing the jury on the offense of sexual
battery because it is not a lesser included offense and it was not
warranted by the facts.
Finding no merit to his assigned errors, we affirm.
I. Procedural History
In January 2019, York was indicted on six counts, including three
counts of rape in violation of R.C. 2907.02(A)(1)(c) and (2) (vaginal and anal rape
by force and vaginal rape by substantial impairment), two counts of complicity to
commit rape in violation of R.C. 2923.03(A)(2), and one count of kidnapping in
violation of R.C. 2905.01(A)(4). York pleaded not guilty to all charges.
1 York’s first name was originally spelled incorrectly in the common pleas court.
The incorrect spelling was “Andari.” The record reflects that the state moved to amend
the indictment to correct the spelling, which the trial court granted, but it does not appear
to have been corrected in the common pleas court’s file.
In May 2019, York moved to dismiss the indictment against him due to
preindictment delay. In June 2019, York moved to suppress any oral statements he
made to police during questioning by police in Detroit, Michigan, in December 2018.
The trial court held hearings on York’s motions in late June 2019 and
subsequently denied them. The case then proceeded to a jury trial.
After the evidence was presented, the state requested a lesser included
offense instruction on sexual battery in violation of R.C. 2907.03(A)(2) for each rape
charge, which the trial court granted. The jury found York guilty of sexual battery
in violation of R.C. 2907.03(A)(2), a third-degree felony, as a lesser included offense
of rape under Count 2 but found him not guilty of all other charges.
The trial court sentenced York to three years in prison for sexual battery
and classified him as a sexually oriented offender under Megan’s Law, the sex
offender classification law in effect at the time York committed the crime. The trial
court further notified York that he would be subject to a mandatory period of five
years of postrelease control upon his release from prison. It is from this judgment
that York now appeals. We will address York’s assignments of error out of order for
ease of discussion.
II. Motion to Suppress
In his first assignment of error, York contends that the investigators
violated his Fifth Amendment rights when they “tricked [him] into reporting to his
probation officer outside of his regular schedule” and coerced him to sign a Miranda
waiver. He therefore contends that the trial court erred when it denied his motion
to suppress.
“Appellate review of a motion to suppress presents a mixed question of
law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d
71, ¶ 8. In ruling on a motion to suppress, “the trial court assumes the role of trier
of fact and is therefore in the best position to resolve factual questions and evaluate
the credibility of witnesses.” Id., citing State v. Mills, 62 Ohio St.3d 357, 366, 582
N.E.2d 972 (1992). On appeal, we “must accept the trial court’s findings of fact if
they are supported by competent, credible evidence.” Id., citing State v. Fanning, 1
Ohio St.3d 19, 437 N.E.2d 583 (1982). Accepting these facts as true, we must then
“independently determine as a matter of law, without deference to the trial court’s
conclusion, whether they meet the applicable legal standard.” Id., citing State v.
McNamara, 124 Ohio App.3d 706, 707 N.E.2d 539 (4th Dist.1997). In this case,
however, the trial court did not make findings of fact or conclusions of law. We must
therefore independently review the record to determine if it supports the trial court’s
decision. See State v. Loza, 71 Ohio St.3d 61, 73, 641 N.E.2d 1082 (1994) (“Upon an
independent review of the record, we find the evidence supports the denial of
appellant’s motion to suppress.”).
“The Fifth Amendment to the United States Constitution and Article
I, Section 10, of the Ohio Constitution guarantee that no person in any criminal case
shall be compelled to be a witness against himself.” State v. Jackson, 2d Dist.
Greene No. 02CA0001, 2002-Ohio-4680, ¶ 19. In adopting the Fifth Amendment,
the framers were concerned that “coerced confessions are inherently
untrustworthy.” Id., citing Dickerson v. United States, 530 U.S. 428, 120 S.Ct. 2326,
147 L.Ed.2d 405 (2000). Suspects may waive their constitutional right against self-
incrimination “provided that waiver is voluntary.” Id. at ¶ 20, citing Colorado v.
Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986).
In Miranda v. Arizona, 384 U.S. 436, 478-479, 86 S.Ct. 1602, 16
L.Ed.2d 694 (1966), the United States Supreme Court held that before questioning
suspects in custody, law-enforcement officials must inform them that (1) they have
the right to remain silent, (2) their statements may be used against them at trial, (3)
they have the right to have an attorney present during questioning, and (4) if they
cannot afford an attorney, one will be appointed.
To use a statement made by an accused during a custodial
interrogation, the prosecution must show that (1) the accused was given the
Miranda warnings before any interrogation, (2) upon hearing the warnings, the
accused made an “express statement” that he or she desired to waive his or her
constitutional rights, and (3) the accused effected a voluntary, knowing, and
intelligent waiver of those rights. State v. Edwards, 49 Ohio St.2d 31, 38, 358
N.E.2d 1051 (1976) (overruled on other grounds), citing Miranda. Contrary to the
second prong in Edwards, however, the United States Supreme Court held in recent
years that the prosecution “does not need to show that a waiver of Miranda rights
was express. An ‘implicit waiver’ of the ‘right to remain silent’ is sufficient to admit
a suspect’s statement into evidence.” Berghuis v. Thompkins, 560 U.S. 370, 384,
130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010). “Where the prosecution shows that a
Miranda warning was given and that it was understood by the accused, an accused’s
uncoerced statement establishes an implied waiver of the right to remain silent.” Id.That is because “the law can presume that an individual who, with a full
understanding of his or her rights, acts in a manner inconsistent with their exercise
has made a deliberate choice to relinquish the protection those rights afford.” Id.To determine whether a valid waiver occurred, a court must “consider
the totality of the circumstances, including the age, mentality, and prior criminal
experience of the accused; the length, intensity, and frequency of interrogation; the
existence of physical deprivation or mistreatment, and the existence of threat or
inducement.” Edwards at paragraph two of the syllabus.
Normally, if defendants challenge statements they made to police as
involuntary, “the state must prove a knowing, intelligent, and voluntary waiver by a
preponderance of the evidence.” State v. Wesson, 137 Ohio St.3d 309, 2013-Ohio-
4575, 999 N.E.2d 557, ¶ 34. But here, because York was accused of rape and his
questioning was electronically recorded, his statements are presumed to be
voluntary. R.C. 2933.81(B). This statute therefore shifts the burden to York to prove
that the statements were not voluntary. Id.A. Suppression Hearing
Ranae Reynolds was York’s probation officer in Troy, Michigan, in
December 2018. York had been on probation for driving under the influence since
December 2017. Reynolds explained that once York was placed on probation, she
had him sign his “probation orders” or “conditions” of probation. One of those
conditions included York having to report to the probation office on “short notice.”
It stated, “Make a truthful report to the probation officer monthly, or as often as the
probation officer may require, either in person or in writing as required by the
probation officer.”
Reynolds testified that she received a call on December 13, 2018, from
Cuyahoga County investigators who wished to speak to York about a case. Reynolds
stated that one or two days before the Cuyahoga County investigators were going to
be there, she called York on December 24, 2018, to tell him to come to the Troy office
two days later. She told him that she could not tell him why.
On December 26, 2018, the Cuyahoga County investigators obtained a
warrant in Oakland County Circuit Court in Michigan to collect York’s buccal swab.
When they arrived at the probation office, Reynolds had them wait in a conference
room until York arrived. Reynolds said the conference room was large with “two
long L tables” and about 15 chairs.
When York arrived, Reynolds walked him to the conference room. She
said that she told him that two investigators from Ohio were waiting to speak to him
in the conference room. She told him that she did not know why they were there,
although she testified that she did know. She did not tell him that he had to speak
to the investigators, nor did she tell him that he would be in violation of his
probation if he did not speak to them. She further stated that there is nothing in
York’s probation orders that would require York to speak to the investigators.
Reynolds stated that there was one door to the conference room. The
door was closed when York was talking to the investigators, but it was not locked.
When York was done speaking to the investigators, he reported back
to Reynolds. She did not ask him any questions about the meeting.
York last reported to Reynolds on March 6, 2019. Reynolds believed
that York did not report to her after that because he was in custody in Ohio. When
the state informed her that he had been out on bond, she said that York should have
reported to her immediately, but he did not.
On cross-examination, Reynolds explained that her department
“cooperate[s] with any law enforcement.” If they request information, her
department assists. Reynolds said it was not true that York asked her before he went
into the conference room, “Do I have to go in there? Do I have to speak to those
people?” Reynolds agreed that as part of York’s probation, he had to submit to any
search warrant.
Larry Stalter testified that he was an investigator with the Cuyahoga
County Prosecutor’s Office, assigned to the “cold case/sexual task force.” His duties
included reinvestigating or investigating “for the first time old reported sexual
assaults.” Investigator Stalter had over 30 years of experience as a police officer and
had given Miranda warnings hundreds of times.
Investigator Stalter testified that Investigator Brian Katigbak asked
him to drive to Michigan with him in late December 2018 regarding an old case that
Investigator Katigbak was assigned to. Investigator Stalter said he was there to
assist Investigator Katigbak.
Investigator Stalter testified that after obtaining the warrant for York’s
buccal swab, they went to the Troy probation office to talk to York. When York
walked into the room, he sat down next to the investigators. Investigator Stalter said
that they informed York that they were there “to talk about an old case in which his
name came up, and then we Mirandized him.” Investigator Stalter explained that
by Mirandized, he meant they “read him his Miranda rights, letting him know that
he had a right to remain silent, the right to have an attorney present if he chose one,
and the rest of what’s on the form.” Investigator Stalter testified that as he read the
form to York, the form was between them so York could read along. Investigator
Stalter stated that York also had a chance “to look over it.”
Investigator Stalter identified the Miranda form that York signed and
Investigator Stalter witnessed. Above York’s signature, the form states,
I have read this statement of my rights and it has been read to me, and
I understand what my rights are. I’m willing to make a statement and
answer questions. I do not want a lawyer at this time. I understand
and know what I am doing. No promises or threats have been made to
me and no pressure or coercion of any kind has been used against me.
I hereby voluntarily and intentionally waive my rights and I am willing
to make a statement and answer questions.
Investigator Stalter testified that they told York “a couple of different
times that we were not there to arrest him.” Investigator Stalter said, “It was very
laid back.”
Investigator Stalter stated that the entire interview with York was
recorded. The state played the recording in court, and Investigator Stalter identified
it. The entire interview lasted approximately 22 minutes.
Investigator Stalter said that York also signed a form voluntarily
consenting to giving a buccal swab, which can also be heard on the recording.
York testified that his probation officer called him on December 24,
2018, and told him to report to her two days later. When he went to the Troy
probation office on December 26, 2018, York said that he went during his lunch
break, which was only 30 minutes. After he signed in, he waited 30 minutes before
his probation officer came to get him. York stated that he asked Reynolds what the
Ohio investigators wanted to talk to him about, and she told him that she did not
know.
York testified that he also asked Reynolds whether he had to speak to
them, and she replied, “yes.” York said that when he was on probation to her, he
tried to comply with her orders because “she had power” over him. He stated that
because of what Reynolds said to him, he felt obligated to talk to the Ohio
investigators.
York testified that during the interview, he was “antsy” because he
“was supposed to have been back to work.” At the beginning of the interview, York
said that his cousin called York’s cell phone and told him that his “job was calling”
him. York can be heard at the beginning of the electronic recording telling his cousin
that he would be there soon.
York stated that he did not read the Miranda form as Investigator
Stalter was reading it. Instead, York said he listened to the investigator read it. York
testified that at the same time, he was also “looking on my phone as the texts from
[his] job [were] coming in.” York said there was “no paper in front” of him but
agreed that Investigator Stalter “showed me as he read it.” Although York “was
paying attention,” he said he was not really paying attention because he “was
thinking about [the] consequences with [his] job.”
York testified that when Investigator Stalter told him where to sign
the form, he did not read the form before he signed it. York stated, “I never even
looked at it.” York agreed that Investigator Stalter told him, “[S]ign here so we can
speak freely.”
On cross-examination, York agreed that although he quit school in the
eleventh grade, he could read and write. York identified his signature on the
Miranda form but said he never read it. He agreed, however, that he “heard
[Investigator Stalter] read it.” But he also stated that they were “rushing [him]
through” it.
York stated on cross-examination that there was more to the interview
with the investigators than is shown on the tape, but he could not recall what they
talked about after it ended.
York further stated on cross-examination that Reynolds was either
lying or could not remember when she testified that he did not ask her if he had to
talk to the investigators.
B. Analysis
York contends that two factors are at issue here: the voluntary nature
of his statements and his ability to comprehend and waive his rights. He claims that
the record establishes that “authorities used coercive tactics while interrogating”
him by “ambush[ing] [him] in his probation officer[’]s office” and by “exploiting his
status as a probationer to coerce a Miranda waiver.” He maintains that “he felt
obligated to speak with those investigators from Ohio because of what [Reynolds]
said.”
Even assuming for the sake of argument that York was in custody,
which we are not concluding that he was, we find no constitutional violation. After
reviewing the totality of the circumstances in this case, we find that the record
supports the finding that York voluntarily, knowingly, and intelligently waived his
Fifth Amendment rights.
York does not cite to one case in support of his argument that he was
“tricked” into coming to see his probation officer and because of that, the
investigators’ questioning was coercive. Instead, York cites to cases that establish a
Miranda violation occurs when police use coercive tactics such as “physical abuse,
threats, deprivation of food, medical treatment, or sleep,” and none of that is at issue
here. See State v. Getsy, 84 Ohio St.3d 180, 189, 702 N.E.2d 866 (1998).
Regarding York’s claim that he was “tricked” into reporting to his
probation officer, the U.S. Supreme Court has explained that “probationer[s] cannot
pretend ignorance of the fact that [their] probation officer ‘is a peace officer, and as
such is allied, to a greater or lesser extent, with [their] fellow peace officers.’”
Minnesota v. Murphy, 465 U.S. 420, 432, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984),
quoting Fare v. Michael C., 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979). The
Murphy court further explained that “[i]f [the probationer] did harbor a belief that
his probation might be revoked for exercising the Fifth Amendment privilege, that
belief would not have been reasonable. Our decisions have made clear that the State
could not constitutionally carry out a threat to revoke probation for the legitimate
exercise of the Fifth Amendment privilege.” Id. at 438.
York testified that he asked Reynolds whether he had to speak to the
investigators, and Reynolds replied, “yes.” York further testified that he tried to
comply with Reynolds’s orders because “she had power” over him. York stated that
because of what Reynolds said to him, he felt obligated to talk to the Ohio
investigators. But Reynolds denied that York asked her if he had to talk to the
investigators, and she further denied telling York that he had to speak to them
(although she agreed that as part of his probation, he had to submit to a search
warrant).
Further, the entire interview was electronically recorded and lasted
only approximately 22 minutes. The investigators were polite to York during the
questioning. Although York claims that he did not read the Miranda form and was
not paying attention due to his anxiety regarding work, he admitted that he listened
to Investigator Stalter read the form. York further told the investigators that he
could read and write. And the investigators never employed improper techniques
when questioning York.
York simply did not meet his burden of establishing that any
statements he made were involuntary. Accordingly, we find that the trial court did
not err when it denied York’s motion to suppress. We therefore overrule York’s first
assignment of error.
III. Trial Evidence
J.G., the victim, testified that in 1999, she was living in an apartment
complex located on Garden Valley Road in Cleveland, Ohio. Andrea Williams and
“some other people” were “staying” with her at that time.
On February 11, 1999, around 1:00 p.m., Williams asked J.G. to go
“kick it with this guy” because she did not know her way around Cleveland very well.
J.G. agreed to go with her. They went to “Rhonda’s” house on Browning Street in
Cleveland. J.G. did not know Rhonda’s last name. When they arrived, Rhonda was
not there, but “Papar and two other guys” were there. J.G. knew Papar because she
had gone to “school with him from elementary on up until high school,” but she did
not know the other two men. She remembered that Papar’s first name was George,
but she did not know his last name. The two other men introduced themselves to
her as “Dee and Rico.” Dee told J.G. that they were from Michigan.
The five of them began playing a game called “Questions.” J.G. could
not remember how the game was played but knew that it was a “drinking game.” As
they were playing the game, J.G. said she began to “feel funny, so she went to the
bathroom.” When she came out of the bathroom, Williams was gone. The three
men told her that Williams had gone to the store and “would be right back.” J.G.
said, “then all of a sudden[,] I just was taken out of the house” by Papar. She
explained that her body was “limp,” she was “weak,” and she “wasn’t feeling too
well.” She stated that she felt like she had been drugged. J.G. testified that she was
“vaguely in and out” of consciousness.
According to J.G., Papar carried her out of the house because she
“couldn’t move” or “walk.” Papar put her in a car and drove what felt like “just * * *
around the corner.” He took her into a house and lay her on a bed. She said her legs
were “just like hanging over the bed, and he just did what he did.” When asked to
explain, J.G. replied, “He violated me.” When asked to explain further, she stated
that Papar had “unconsensual” vaginal sex with her. She said that she was still going
in and out of consciousness while it was happening, and her body was still limp. She
did not know if he used a condom or if he ejaculated.
J.G. testified that when Papar was done, “the other two do what they
do.” She explained that Dee and Rico were also in the bedroom. Both Dee and Rico
had “unconsensual” vaginal sex with her; first Dee and then Rico. She said that she
told the men “no, but probably they couldn’t hear it because [she] was in and out.”
Although she told police shortly after the incident that she was also anally raped, at
the time of trial, she could not recall if someone had anal sex with her.
J.G. explained that after Rico had sex with her, she went downstairs
because she heard Williams’s voice. When J.G. walked into the kitchen, she said
that Williams caught her before she fell. Williams asked her what was wrong, and
J.G. told her that she was ready to go because she “was afraid that they might do
something else” to her. Williams took her to the bathroom and told her to wait for
Papar “to come get [them], to take [them] home.” She replied that she did not want
Papar to take her home. At that point, Dee came into the bathroom. Dee and
Williams took J.G. outside to get some air. They then took her back inside, sat her
on the couch, and “start[ed] putting water on [her] face.” They also tried to give her
coffee, but J.G. did not drink coffee.
J.G. stated that she went back outside. She told Williams that she was
getting ready to leave. J.G. planned to walk to her son’s godmother’s house because
it was nearby, but Williams and Rhonda, who finally came home, “wouldn’t let [her]
leave.” About five minutes later, Papar “pull[ed] up,” and “they stuffed [her] in the
car.” She could not recall who else was in the car, but she said that she was in the
middle of the back seat, so she “couldn’t even try to jump out of the car if [she]
wanted to.” They took her and Williams “to Garden Valley.”
J.G. testified that she never told Williams what the three men did to
her. She “just wanted to get away from the whole situation.” But when she got home,
she “broke down.” People who knew her could tell that something was wrong. They
ended up calling police, and she went to the hospital, where a rape kit was collected.
She also met with police on February 16, 1999, and gave them a statement.
J.G. stated that the next time she talked to police was when they
contacted her “recently of this year.” She said she moved to Arkansas in 2010, and
Investigator Katigbak contacted her there. She met with a detective in Arkansas
twice. The detective showed her several photo lineups of men, but she could not
positively identify any of them as her perpetrators “because it [had] been so long.”
On cross-examination, J.G. denied that there was another female
there by the name of “K-1.”
On redirect-examination, J.G. read from the statement she gave to
police in February 1999. She stated:
On Thursday, February 11, 1999 at about 1:00 p.m., me and my
girlfriend Andrea met with Papar, Rico and Dee and we all decided to
get together. We went over Rhonda’s house at * * * Browning Avenue
(up). We all started playing this game called Questions, which is when
one person ask[s] another question and the other person answer[s]
with a question. If you don’t answer with a question, then you have to
take a shot of alcohol.
I remember that after we got to the third 40 ounce bottle of beer, I
started feeling sick. Andrea and Rhonda took me outside on the porch
to get some air. We came back in and they laid me on the couch.
Andrea and Rhonda went back out on the porch * * * and Andrea told
me when she came back in that I was gone and Papar * * * was gone.
Papar had taken me someplace. I remember going to another house. I
remember my legs hanging over a wooden part of the bed. I woke up
and I was upstairs in this attic. I remember seeing and hearing about
three guys in the attic. I know that one of the guys was Papar. The
other was Rico[,] and Dee was the last one.
I remember Papar laying on top of me. He had his penis inside of me,
in my vagina. Then he turned me over and put his penis in my anus. I
couldn’t scream or say anything. I couldn’t move. I think I was
drugged.
Papar went downstairs. Then Rico got on top of me. He put his penis
inside of my vagina and turned me around and put his penis inside my
anus. Then Rico went downstairs[,] and Dee got on top of me and put
his penis inside my vagina and turned me over and put his penis inside
my anus.
When Dee finished, Papar came back in the attic. He did it again,
putting his penis inside my vagina. I remember him putting his penis
in my mouth. Then Dee came back up. I kept saying no. I was able to
start moving. Dee had me turned sideways and had his penis inside my
vagina.
When I started moving, that’s when he stopped. Dee got up and went
downstairs. I had on a dress. I was able to walk downstairs. I was
drugged. I was able to get to the kitchen. Andrea caught me from
falling out. She took me to the bathroom. She asked me what
happened. I was too afraid to say anything, because Papar and his
friends were still there.
Andrea put water on my face. I was crying. Dee came in the bathroom
asking what was wrong. I told Andrea I was ready to go home. They
gave me some coffee. We sat on the porch. They started talking about
what they did to me. Andrea heard this. I heard one of the girls saying
that it was my fault that this happened to me because of the dress I was
wearing. I remember telling her that they had no right to do this to me.
I was still feeling weak. I told them I wanted to go home and that I
would walk home. They wouldn’t let me go home. They said I wasn’t
able to. They told me to wait for Papar to return. He left to go pick up
some girl. I told them to let me use the telephone, but they wouldn’t.
Finally Papar came back and took us home.
What happened when you got home? I called the police and told them
what happened[,] and they took me to St. Luke’s Hospital.
Do you know any of the persons involved real names? No. Only my
friend, Andrea Williams.
Can you describe these males? Papar is a black male. He’s about five,
four or five, five, about medium build, brown complexion. His ears
stick out, short fade haircut. He’s about 22 or 23 years old. Rico is a
black male. He has a short fade haircut, about five, five, brown-
skinned, medium build. He’s about 25 years old. * * * Dee is a black
male. He’s dark-skinned, about five, six to about five, ten, small build.
He is about 22 years.
How is Rhonda related to these males? I don’t know. Dee and Rico are
from Detroit. Rico is his cousin and was visiting from Detroit.
J.G. stated that she did not make up the story.
Upon recross-examination, J.G. stated that although she was “in and
out of consciousness,” she knew that her body had been violated and was able to give
details about the sexual assaults.
The court then asked J.G. a series of jury questions. In response to
the jury’s questions, J.G. explained that the sexual assaults started at Rhonda’s
house, but then when she was “taken away from that house to another house,” they
continued there. She further stated that she did not drink a lot because she does not
“drink that much.” She was worried that someone would put something in her drink
because she does not trust anyone. She further denied flirting with the men during
the party.
Upon redirect-examination, J.G. stated that only Papar assaulted her
at the second house. Dee and Rico assaulted her “back at the first house,” but she
stated that she did not remember Papar taking her back to the first house.
Susan Eaton, the sexual assault nurse examiner (“SANE”) who
completed the rape kit for J.G., identified J.G.’s chart from the hospital. She
explained that J.G. was brought to the hospital by ambulance for an alleged rape.
According to Nurse Eaton’s notes, J.G. got to the hospital at 11:30 p.m. on February
11, 1999. Nurse Eaton documented that J.G.’s “mental state” was “sleepy.” J.G. had
no visible injuries and was not in pain, but Nurse Eaton testified that it was possible
to have a rape without visible injuries.
Nurse Eaton read from her notes that night, which stated:
Patient states she was at an acquaintance’s house. Admits to drinking.
Patient states she thinks something was slipped in her drink. Patient
states she doesn’t remember how she got upstairs. Patient states there
were 3 men involved in the incident. Patient states she was sexually
assaulted vaginally and rectally, states another person attempted to put
his penis in her mouth. Patient doesn’t know if her assailant ejaculated.
Attempted to get in contact with rape crisis. Unable to get in touch.
Patient sleepy but awakens when her name is called. Patient states she
has a headache. Rape kit is complete and rape kit was picked up by 4th
district.
Nurse Eaton explained that she completed the rape kit at 2:00 a.m.
J.G.’s urine test showed that her blood alcohol content was .038 and there were no
drugs in her system. They did not test for marijuana. Nurse Eaton said that the
toxicology test was “a very basic tox screen,” and they would not test for “newer
things” that are “concoct[ed] on the street and don’t really have tests for.”
On cross-examination, Nurse Eaton stated that J.G.’s urine was
collected when she came into the hospital. The results did not come back until
approximately 2:00 a.m. According to the toxicology report, J.G. was negative for
cocaine, amphetamines, ethclorvynol, barbituates, bezodiazepines, PCP,
phenothiazines, opiates, and salicylates.
Andrea Dennis, a forensic scientist with the Ohio Bureau of Criminal
Investigation (“BCI”), testified that her office received J.G.’s rape kit in this case on
October 25, 2013. Dennis testified that scientists at her office conducted DNA
testing on the anal swab, the oral swab, and the vaginal swabs. Dennis reported on
June 6, 2014, that there was male DNA on several swabs from J.G.’s rape kit. Dennis
received a DNA standard (buccal swab) from York on December 28, 2018. The
sample was analyzed on January 2, 2019. The results showed that the DNA found
on J.G.’s vaginal and anal swabs and pubic hair combings were “sperm fractions”
and were consistent with York’s DNA and one other unknown male’s DNA. With
respect to the anal swab, Dennis stated that the likelihood that the DNA from the
anal swab matched York’s DNA was one in three billion. The likelihood that the
DNA from the pubic hair combings matched York’s was one in ten million. And the
likelihood that the DNA from the vaginal swab matched York’s was one in ten billion.
Investigator Katigbak testified that he works in the Sexual Assault
Task Force investigating “cold cases” for the Cuyahoga County Prosecutor’s Office.
He explained that his office receives rape kits from all cities in Cuyahoga County.
Since the task force began, which was in the beginning of 2014, they have received
7,000 rape kits to process. Investigator Katigbak stated that he was assigned to this
case in early 2018.
Investigator Katigbak testified that the detectives assigned to the case
in 1999 identified Papar as George Epps and Rico as Damon Joiner.
Investigator Katigbak identified a letter dated July 17, 2014, from the
Ohio BCI to the Cleveland Police Department. In the letter, BCI informed the
department that there had been a CODIS match found in the national database that
“would require a DNA sample from [York].” Investigator Katigbak explained that
“it took so long to get to this” case simply due to “the amount of cases, 7,000 cases”
that they had received. He said his department has only 25 investigators who had
to work through the 7,000 cases.
Investigator Katigbak finally located J.G. in Arkansas in late 2018.
Investigator Katigbak created a photo lineup that contained a photo of York from
2001. J.G. did not choose York in the lineup; she chose “some other random
individual” instead and wrote “50%” by it. He also created two photo arrays with
Joiner and Epps. J.G. was not able to identify them in the lineups either.
Investigator Katigbak located York in Detroit, Michigan, in December
2018. The state played the recording of Investigators Katigbak’s and Stalter’s
interview with York in court. York denied that he had ever been to Cleveland. He
told the investigators that he once loaned his identification card to Brady Keys so
that Keys could go to Ohio to avoid prison until his child was born. When Keys went
to Ohio, he was charged with driving under the influence (“DUI”) and used York’s
identification card when he was arrested. Because of that, York stated that his first
DUI case was not even his.
Investigators Katigbak and Stalter showed York photos of J.G. from
1996 and 2001, and photos of George Epps and Damon Joiner. On the photos of
J.G., York wrote, “I never seen this girl ever in my life.” On Epps’s photo, York wrote,
“His name is George.” York explained that Epps was “part of [his] family” but he
could not explain how. And on Joiner’s photo, York wrote, “I don’t know this man.”
On the recording, Investigator Stalter can be heard saying, “He knows you.” York
told the investigators that his nickname was “Dee Money” without them telling him
what the victim said. York continually stated that he had never been to Cleveland.
Investigators Katigbak and Stalter told York that the woman in the
photos had been sexually assaulted and asked York if he would give a DNA sample
to confirm that he did not sexually assault her. York replied that he would because
he had “never had sex with her.”
Investigators Katigbak testified that Epps’s and Joiner’s DNA were not
found in J.G.’s rape kit. Through his investigation, Investigator Katigbak later
learned that Rico and Damon Joiner were two different people.
IV. Sufficiency of the Evidence
In his third assignment of error, York argues that the state’s evidence
of sexual battery was insufficient for a jury to find him guilty beyond a reasonable
doubt.
A sufficiency challenge essentially argues that the evidence presented
was inadequate to support the jury verdict as a matter of law. State v. Thompkins,
78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). “‘The relevant question is whether,
after viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.’” State v. Getsy, 84 Ohio St.3d 180, 193, 702 N.E.2d 866 (1998),
quoting Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
“[A] conviction based on legally insufficient evidence constitutes a denial of due
process.” Thompkins at 386, citing Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72
L.Ed.2d 652 (1982). When reviewing a sufficiency of the evidence claim, we review
the evidence in a light most favorable to the prosecution. State v. Hill, 75 Ohio St.3d
195, 205, 661 N.E.2d 1068 (1996).
In this case, the state had to present evidence of the elements of sexual
battery set forth in R.C. 2907.03(A)(2). This statute provides: “No person shall
engage in sexual conduct with another * * * when * * * [t]he offender knows that the
other person’s ability to appraise the nature of or control the other person’s own
conduct is substantially impaired.” “A person acts knowingly, regardless of his
purpose, when he is aware that his conduct will probably cause a certain result or
will probably be of a certain nature.” R.C. 2901.22(B).
York maintains that the state’s evidence of sexual battery is
insufficient for two reasons: (1) there was no reliable evidence that establishes the
victim was substantially impaired, and (2) there was no evidence that York knew or
had reason to believe the victim’s ability to resist or consent due to substantial
impairment.
First, the state did not have to prove that the victim was substantially
impaired for purposes of sexual battery (it did for rape, but not sexual battery as we
explain in our analysis on lesser included offenses). The state did have to prove,
however, that York knew that the victim’s ability to appraise the nature of or control
her own conduct was substantially impaired. Second, York is incorrect that for
sexual battery, the state had to present evidence that he “knew or had reason to
believe the victim’s ability to resist or consent due to substantial impairment.”
York’s language incorrectly tracks the rape statute under R.C. 2907.02(A)(1)(c)
instead of the sexual battery statute.2 But we will assume for sufficiency purposes
that York meant to track the sexual battery language rather than rape.
York spends a great deal of time arguing that the victim’s toxicology
results blood alcohol content proved that she was not substantially impaired. He
contends that because there were no drugs in her system and her blood alcohol
content would not have even established that she was impaired for purposes of
driving a car, she could not have been substantially impaired in this case. We
disagree.
York’s entire argument fails to take into account that with the passage
of time, alcohol decreases in a person’s blood. See State v. Hayes, 2d Dist.
Montgomery No. 26379, 2016-Ohio-7241, ¶ 56, quoting Schmerber v. California,
384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (alcohol has an “‘evanescent
nature,’” which means that “the level of alcohol in blood decrease[s] with the passage
of time”). In Hayes, the defendant argued that the state did not present sufficient
evidence that his blood alcohol content was .17 or more at the time of a crash. But
the Second District explained that “from the time of the crash at 8:45 p.m. until the
time of the blood draw at 11:20 p.m., Hayes was obviously not drinking any more
alcohol. Therefore, the level of alcohol in his blood was steadily decreasing during
that period of time while his body was eliminating it.” Id. at ¶ 99.
2 R.C. 2907.02(A)(1)(c) provides: “No person shall engage in sexual conduct with
another * * * when * * * [t]he other person’s ability to resist or consent is substantially
impaired because of a mental or physical condition * * * and the offender knows or has
reasonable cause to believe that the other person’s ability to resist or consent is
substantially impaired[.]”
Here, the victim testified that she went to Rhonda’s house with
Williams around 1:00 p.m. They began playing drinking games with the men. They
were drinking out of 40-0z bottles of beer. The victim testified that she began to feel
“funny,” and her body was “weak” and “limp.” She was “in and out of
consciousness.” She had to be carried to the car. She could not walk. Later, she had
to wait around for someone to take her home. Although the victim did not testify as
to how long she was with Williams, Rhonda, and the men, she did not go to the
hospital until 11:30 p.m. The fact that the victim’s blood alcohol content was below
the legal limit for driving impairment therefore has no bearing on this case because
there is no way to know how long it was between the victim’s last drink and the time
she went to the hospital. Moreover, the SANE nurse testified that the hospital does
not test all possible drugs because there is no test for many street drugs.
The cases that York cites in support of his argument that this court
should find insufficient evidence of sexual battery are distinguishable from the
present case. In State v. Noernberg, 8th Dist. Cuyahoga No. 97126, 2012-Ohio-
2062, this court found insufficient evidence of rape in relevant part because the
victim “fully was able to say ‘no’ to intercourse and give her reasons why; she wanted
to remain a virgin.” Id. at ¶ 25. Additionally, the victim could explain why she
decided “to give oral sex to at least two of the males, i.e., she did not want them to
kick her out of Noernberg’s home.” Id. The state also did not present any evidence
that “any particular aspects of [the victim’s] behavior * * * should have alerted
Noernberg to her substantial impairment, such as stumbling, falling, slurred speech,
passing out, or vomiting.” Id. at ¶ 27. Here, however, the victim testified that she
was weak, limp, and had to be carried because she could not walk, she was “in and
out of consciousness,” and that during the sexual acts, her legs were just hanging
over the bed. Thus, there was sufficient evidence presented in this case that should
have alerted York to the fact that the victim could not appraise the nature of or
control her own conduct due to her substantial impairment.
York also cites State v. Theodus, 8th Dist. Cuyahoga No. 97290, 2012-
Ohio-2064. Theodus is distinguishable for the same reason as Noernberg because
Theodus and Noernberg were codefendants, and their appeals were companion
cases before this court.
The final case that York cites is State v. Doss, 8th Dist. Cuyahoga No.
88443, 2008-Ohio-449. Doss is distinguishable from the present case because in
Doss, although there was evidence that the victim was substantially impaired earlier
in the evening, there was insufficient evidence that the defendant was aware that the
victim was substantially impaired at the time of the rape. According to the evidence
presented, the victim went to defendant’s house voluntarily. And according to the
defendant’s statement that was not countered at trial, the encounter was consensual,
the victim had a “consensual conversation with him,” and she “was in control of her
actions.” Id. at ¶ 19-25.
Accordingly, we find that the state presented sufficient evidence based
on the victim’s testimony that, if believed, established that York committed sexual
battery against the victim.
We therefore overrule York’s third assignment of error.
V. Weight of the Evidence
In his fourth assignment of error, York argues that his conviction is
against the manifest weight of the evidence.
Unlike sufficiency of the evidence, a challenge to the manifest weight
of the evidence attacks the credibility of the evidence presented. Thompkins, 78
Ohio St.3d at 387, 678 N.E.2d 541. Because it is a broader review, a reviewing court
may determine that a judgment of a trial court is sustained by sufficient evidence,
but nevertheless conclude that the judgment is against the weight of the evidence.
Id., citing State v. Robinson, 162 Ohio St. 486, 124 N.E.2d 148 (1955).
In determining whether a conviction is against the manifest weight
of the evidence, the court of appeals functions as a “thirteenth juror.” Id. In doing
so, it must review the entire record, weigh the evidence and all reasonable
inferences, consider the credibility of witnesses, and determine “‘whether in
resolving conflicts in the evidence, the [trier of fact] clearly lost its way and created
such a manifest miscarriage of justice that the conviction must be reversed and a
new trial ordered.’” Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d
172, 485 N.E.2d 717 (1st Dist.1983). Reversing a conviction as being against the
manifest weight of the evidence and ordering a new trial should be reserved for only
the “‘exceptional case in which the evidence weighs heavily against the conviction.’”
Id. quoting Martin.
York makes the same argument with respect to manifest weight of the
evidence that he did regarding sufficiency of the evidence, namely, that the state’s
theory that the victim was substantially impaired is not supported by scientific or
physical evidence. But we previously found this argument to be without merit and
will not address it a second time.
York further contends that because there was no evidence of any
injuries to the victim, “no bruises[,] [n]o scrapes[,] [and] [n]o scratches,” and
because Epps’s and Joiner’s DNA was not found in the victim’s rape kit, the “state’s
theory or J.G.’s story” was not corroborated in any way.
Although Epps’s and Joiner’s DNA was not found in the victim’s rape
kit, York’s was. But York told police that he had never been to Cleveland. Regarding
the fact that the victim had no visible injuries, the SANE nurse testified that it is
possible to have a rape without visible injuries.
After reviewing the entire record, weighing the evidence and all
reasonable inferences, considering the credibility of the witnesses and determining
whether the trial court clearly lost its way and created such a manifest miscarriage
of justice such that York’s sexual battery conviction must be reversed and a new trial
ordered, we find that it did not. This is simply not the exceptional case where the
evidence weighs heavily against the conviction.
We further note that although we are required to independently weigh
the evidence, including the credibility of the witnesses, the Ohio Supreme Court
made clear that we “must always be mindful of the presumption in favor of the finder
of fact.” Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517,
¶ 21, citing Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 461 N.E.2d 1273(1984) (although Eastly was a civil case, the Supreme Court thoroughly discussed
sufficiency and manifest weight of the evidence reviews in civil and criminal cases
and concluded that the reviews are the same whether the case is civil or criminal).
Regarding this presumption in favor of the finder of fact, the Supreme
Court explained:
In weighing the evidence, the court of appeals must always be mindful
of the presumption in favor of the finder of fact. In determining
whether the judgment below is manifestly against the weight of the
evidence, every reasonable intendment and every reasonable
presumption must be made in favor of the judgment and the findings
of fact. * * * If the evidence is susceptible of more than one construction,
the reviewing court is bound to give it that interpretation which is
consistent with the verdict and judgment, most favorable to sustaining
the verdict and judgment.
Id.In this case, although the jury found that the state did not prove that
the victim was substantially impaired, it clearly believed the victim that York
committed a sexual act against her when he knew that her ability to appraise the
nature of or control her own conduct was substantially impaired. Although the
evidence presented at trial was susceptible of more than one construction, we are
mindful of the presumption in the favor of the jury.
York’s fourth assignment of error is overruled.
VI. Lesser Included Offense
In his fifth assignment of error, York argues that the trial court erred
when it instructed the jury on the offense of sexual battery because sexual battery is
not a lesser included offense of rape and the instruction was not warranted by the
facts.
A trial court’s decision to grant or deny a requested jury instruction is
reviewed under an abuse of discretion standard. State v. Williams, 8th Dist.
Cuyahoga No. 90845, 2009-Ohio-2026, ¶ 50. “Abuse of discretion” has been
described as a ruling that lacks a “sound reasoning process.” AAAA Ents., Inc. v.
River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553
N.E.2d 597 (1990). However, whether an offense is a lesser included offense of
another offense is a question of law that we review de novo. State v. Deanda, 136
Ohio St.3d 18, 2013-Ohio-1722, 989 N.E.2d 986, ¶ 6 (calling the inquiry a “purely
legal question”).
When a lesser included offense is included within the offense charged
in a complaint or indictment, the defendant may be found guilty of the lesser
included offense even though the lesser included offense was not separately charged
in the complaint or indictment. Crim.R. 31(C); see also R.C. 2945.74; State v. Lytle,
49 Ohio St.3d 154, 157, 551 N.E.2d 950 (1990). Lesser included offenses need not
be separately charged because when an indictment or complaint charges a greater
offense, “‘it necessarily and simultaneously charges the defendant with lesser
included offenses as well.’” State v. Smith, 121 Ohio St.3d 409, 2009-Ohio-787, 905
N.E.2d 151, ¶ 15, quoting Lytle at 157.
The question of whether a particular offense should be submitted to
the finder of fact as a lesser included offense involves a two-tiered analysis. Deanda
at ¶ 6, citing State v. Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, 911 N.E.2d 889,
¶ 13. The first tier, also called the “statutory-elements step,” is a purely legal
question, wherein we determine whether one offense is generally a lesser included
offense of the charged offense. Id., citing State v. Kidder, 32 Ohio St.3d 279, 513
N.E.2d 311 (1987).
In determining whether one offense is a lesser included offense of
another, a court must consider whether (1) “one offense carries a greater penalty
than the other,” (2) “some element of the greater offense is not required to prove
commission of the lesser offense” and (3) “the greater offense as statutorily defined
cannot be committed without the lesser offense as statutorily defined also being
committed.” Evans at paragraph two of the syllabus, clarifying State v. Deem, 40
Ohio St.3d 205, 533 N.E.2d 294 (1988). In clarifying Deem, the Ohio Supreme
Court removed the word “ever” from the third prong of the test (which was the
second prong under the Deem test) that had previously stated, “the greater offense
cannot, as statutorily defined, ever be committed without the lesser offense, as
statutorily defined, also being committed.” (Emphasis added.) Evans at ¶ 25.
After it has been determined that the offense is a lesser included
offense, the second tier of determining whether the lesser included offense should
be submitted to the jury mandates that courts look to the evidence in a particular
case and determine whether “‘a jury could reasonably find the defendant not guilty
of the charged offense, but could convict the defendant of the lesser included
offense.’” Deanda at ¶ 6, quoting Evans at ¶ 13; see also State v. Thomas, 40 Ohio
St.3d 213, 216, 533 N.E.2d 286 (1988).
York challenges both prongs of the analysis. In the first part of the
analysis, we must determine if sexual battery is a lesser included offense of rape.
Rape under R.C. 2907.02(A)(1)(c) provides:
No person shall engage in sexual conduct with another * * * when [t]he
other person’s ability to resist or consent is substantially impaired
because of a mental or physical condition or because of advanced age,
and the offender knows or has reasonable cause to believe that the
other person’s ability to resist or consent is substantially impaired
because of a mental or physical condition or because of advanced age.
Sexual battery under R.C. 2907.03(A)(2) provides:
No person shall engage in sexual conduct with another * * * when * * *
[t]he offender knows that the other person’s ability to appraise the
nature of or control the other person’s own conduct is substantially
impaired.
The first step of the Evans test is easily met. Rape under R.C.
2907.02(A)(1)(c) is a first-degree felony, and sexual battery under R.C.
2907.03(A)(2) is a third-degree felony. R.C. 2907.02(B); R.C. 2907.03(B).
The second step requires this court to determine if there is “some
element” of the greater offense that is not required to prove the lesser offense. This
step is easily met as well. Rape requires proof that the victim’s ability to resist or
consent was substantially impaired because of a mental or physical condition.
Sexual battery does not require proof of this element.
We turn now to the third part of the Evans test, i.e., determining
whether “the greater offense as statutorily defined cannot be committed without the
lesser offense as statutorily defined also being committed.” In discussing this prong,
the Ohio Supreme Court explained after Evans that the specific facts of a particular
case are “still irrelevant,” but courts should “no longer * * * look at the elements in a
vacuum.” Deanda, 136 Ohio St.3d 18, 2013-Ohio-1722, 989 N.E.2d 986, ¶ 18. The
Supreme Court made clear that “a menu of unrelated, fact-specific hypotheticals” or
“implausibles” should not be considered in the analysis. Id.; Evans, 122 Ohio St.3d
381, 2009-Ohio-2974, 911 N.E.2d 889, at ¶ 24. “Rather, it is more instructive to
consider the charged crime’s relationship with potential lesser included offenses,
and then follow the language of the applicable statutes in order to ensure the
defendant’s constitutional right to notice.” Deanda at ¶ 18. In clarifying the Deem
test, the Ohio Supreme Court explained in Evans that the test now “requires a
comparison of the elements of the respective offenses in the abstract to determine
whether one element is the functional equivalent of the other. If so, and if the other
parts of the test are met, one offense is a lesser included offense of the other.” Evans
at ¶ 25.
This court has previously held, even under the more rigid Deem test,
that sexual battery under R.C. 2907.03(A)(2) is a lesser included offense of rape
under R.C. 2907.02(A)(1)(c). State v. Felton, 8th Dist. Cuyahoga No. 92295, 2010-
Ohio-4105, ¶ 35. In finding the Tenth District’s reasoning in State v. Stricker, 10th
Dist. Franklin No. 03AP-746, 2004-Ohio-3557, to be persuasive, we quoted from
Strickler and explained:
“[S]exual battery under R.C. 2907.03(A)(2) does not require that the
offender act with ‘actual knowledge.’ Rather, the statute merely
requires that the offender act ‘knowingly.’ R.C. 2901.22(B) defines
‘knowingly’ as follows:
“A person acts knowingly, regardless of his purpose, when he is aware
that his conduct will probably cause a certain result or will probably be
of a certain nature. A person has knowledge of circumstances when he
is aware that such circumstances probably exist.
“Because ‘knowledge’ as defined above requires no more than a
person’s belief that a set of circumstances ‘probably’ exist, rather than
the person’s absolute or actual knowledge that the circumstances are in
fact true, the mental state attributable to the offender in both the sexual
battery and the rape statute at issue is the same, i.e., knowledge. See In
re Sechler[, 11th Dist. Trumbull No. 96-T-5575, 1997 Ohio App. LEXIS
3886 (Aug. 29, 1997)]. Thus, the mens rea element for rape under R.C.
2907.02(A)(1)(c) is not lesser than the mens rea for sexual battery
under R.C. 2907.03(A)(2).” Id. at ¶ 31.
The Stricker court found sexual battery under R.C. 2907.03(A)(2) to be
a lesser included offense of rape under R.C. 2907.02(A)(1)(c). We
agree. Rape requires that the offender knew or had reason to believe
that the victim’s ability to consent to or resist the offender’s acts was
substantially impaired, while sexual battery requires that the offender
knew the victim’s ability to appraise or control his or her own conduct
was substantially impaired. If an offender knew that a victim could not
appraise or control his or her own acts, then the offender would
certainly know that the victim could not consent to or resist another’s
advances. Thus, the second prong of the Deem test is met [which is the
third prong of the Evans test].
Felton at ¶ 34-35.
We reaffirm our holding in Felton and conclude that the trial court
correctly found that sexual battery under R.C. 2907.03(A)(2) is a lesser included
offense of rape under R.C. 2907.02(A)(1)(c).
York cites to State v. Hines, 12th Dist. Clermont No. CA2017-06-025,
2018-Ohio-1780, in support of his argument that sexual battery is not a lesser
included offense of rape. Hines, however, dealt with sexual battery under R.C.
2907.03(A)(3), which provides: “No person shall engage in sexual conduct with
another * * * when * * * [t]he offender knows that the other person submits because
the other person is unaware that the act is being committed.” York was convicted of
sexual battery under R.C. 2907.03(A)(2). Accordingly, Hines is inapplicable to this
case.
Having determined that sexual battery under R.C. 2907.03(A)(2) is a
lesser included offense of rape under R.C. 2907.02(A)(1)(c), we now must determine
whether “‘a jury could reasonably find the defendant not guilty of the charged
offense but could convict the defendant of the lesser included offense.’” Deanda,
136 Ohio St.3d 18, 2013-Ohio-1722, 989 N.E.2d 986, at ¶ 6, quoting Evans, 122 Ohio
St.3d 381, 2009-Ohio-2974, 911 N.E.2d 889; see also Thomas, 40 Ohio St.3d 213,
216, 533 N.E.2d 286 (1988).
Based on the evidence presented in this case, we conclude that the
jury could have reasonably found York not guilty of rape, but guilty of sexual battery.
If the jury found that the state failed to prove that the victim was impaired, i.e.,
intoxicated or drugged, but found that York knew that the victim was not able to
appraise the nature of or control her own conduct due to her substantial
impairment, then the jury could find that the state proved the elements of sexual
battery but not rape. We therefore find that the trial court did not err when it
instructed the jury on sexual battery.
Accordingly, we overrule York’s fifth assignment of error.
VII. Sentence
In his second assignment of error, York argues that his three-year
prison sentence was contrary to law because the trial court “erroneously considered
as a seriousness factor the fact [that] the underlying offense was a sex offense.” He
further contends that the trial court failed to consider his age at the time of the
offense as a mitigating factor.
R.C. 2953.08(G)(2) states that when reviewing felony sentences, an
“appellate court’s standard for review is not whether the sentencing court abused its
discretion.” Rather, the statute states that if we “clearly and convincingly” find that
(1) “the record does not support the sentencing court’s findings under” certain
sentencing provisions not at issue in this case, or that (2) “the sentence is otherwise
contrary to law,” then we “may increase, reduce, or otherwise modify a sentence * * *
or [we] may vacate the sentence and remand the matter to the sentencing court for
resentencing.”
When sentencing a defendant, the court must consider the purposes
and principles of felony sentencing set forth in R.C. 2929.11 and the seriousness and
recidivism factors in R.C. 2929.12. State v. Hodges, 8th Dist. Cuyahoga No. 99511,
2013-Ohio-5025, ¶ 7. In this case, York challenges only the trial court’s findings
under R.C. 2929.12.
R.C. 2929.12 sets forth a nonexhaustive list of factors that the court
must consider in relation to the seriousness of the underlying crime and likelihood
of recidivism, including “(1) the physical, psychological, and economic harm
suffered by the victim, (2) the defendant’s prior criminal record, (3) whether the
defendant shows any remorse, and (4) any other relevant factors.” State v.
Kronenberg, 8th Dist. Cuyahoga No. 101403, 2015-Ohio-1020, ¶ 26, citing R.C.
2929.12(B) and (D).
However, the trial court is not required to use particular language or
make specific findings on the record regarding its consideration of the factors under
R.C. 2929.11 or 2929.12 before imposing the sentence. State v. Boczek, 8th Dist.
Cuyahoga No. 103811, 2016-Ohio-5708, ¶ 22, citing State v. Wilson, 129 Ohio St.3d
214, 2011-Ohio-2669, 951 N.E.2d 381. In fact, “[c]onsideration of the factors is
presumed unless the defendant affirmatively shows otherwise.” State v. Seith, 8th
Dist. Cuyahoga No. 104510, 2016-Ohio-8302, ¶ 12, citing State v. Keith, 8th Dist.
Cuyahoga Nos. 103413 and 103414, 2016-Ohio-5234. The Ohio Supreme Court
recently reaffirmed this holding in State v. Jones, Slip Opinion No. 2020-Ohio-
6729, ¶ 20.
At the sentencing hearing, the trial court stated in relevant part:
Mr. York, when I look at the factors here, I have to look at the factors
as to what occurred here as the injury to the victim, psychological and
physical condition. The economic harm. There is no doubt that this
offense is the victim’s own testimony and her own statement to this
court how this has psychologically harmed her. The fact that I look at
this, that this was a sexual offense is also a serious factor that this court
has to consider.
When I look at the less serious offenses, there is clear testimony in this
case that alcohol was involved, people were drinking and the fact that
she was looking, I think in her words, for a kick at that party that night,
I don’t know if you want to call that a less serious offense, but there was
alcohol being used and I think that’s where the jury came back with a
lesser included of sexual battery on this case.
When I look at the recidivism factors, it is clear your criminal history,
that you have been convicted of crimes of unarmed robbery, drugs,
receiving stolen property, OVI. You were given probation and there
was probation terminated and a sentence imposed. So you have a
criminal history, but not for sex offenses.
So then I have to look at this and what makes it tragic is that
unfortunately for you, medical technology and DNA has advanced to a
point where you could be in a crime 23 years later. When I look at what
occurred 23 years ago, you made a mistake that night. I heard from
your family and there is no question by the comments of your family
and friend that you are a good father, good husband, good friend, and
a person who has done good things well in this world.
However, I have to look at the crime that occurred in 1999 when you
were 23 years old and I have to impose a sentence based on a crime that
occurred and the facts of this case. When I look at those factors and I
look at the violence that occurred, the sexual violence that occurred
with this woman and the factors I just went over in 2929.11, a prison
sentence would be appropriate.
With respect to York’s argument that the trial court failed to take his
age at the time of the offense into consideration, we note again that the trial court
did not have to explicitly discuss any mitigating factors on the record. In this case,
however, the trial court did just that. It discussed York’s young age at the time of
the crime more than once when it was sentencing York. Therefore, the trial court
clearly considered York’s age when deciding what sentence to impose.
York further argues that the trial court improperly considered the
nature of his offense, namely, the fact that it was a sex offense, as an aggravating
factor when sentencing him. He cites to several cases in support of his argument.
These cases, however, stand for the proposition that if a trial court considers only an
element of the offense as an aggravating factor, without considering any other factor,
it is improper. For example, in one of the cases cited by York, State v. Stroud, 7th
Dist. Mahoning No. 07 MA 91, 2008-Ohio-3187, the trial court found that Stroud
committed the worst form of the offense based solely on the fact that “a life was
taken” when Stroud committed the offense of voluntary manslaughter. The Seventh
District held that because the trial court did not explain how this was something
more than an element of the offense and was “present in every case where a court is
sentencing an offender for a voluntary manslaughter[,] * * * highlighting this fact
does not show why this particular case is a more serious form of that offense.” Id. at
¶ 52.
In this case, however, the trial court gave many reasons for imposing
its sentence (even though it did not have to), including the psychological harm that
York caused the victim. The victim informed the court in the presentence
investigation report that the crime still affects her. She stated that she does not go
anywhere by herself and is always with her husband. She further stated that she is
“paranoid.” Therefore, the cases that York cites to are inapplicable here.
Additionally, the cases York cites to (except for Stroud) were all pre-
Foster cases when a trial court had to find that an offense was the worst form of the
offense before sentencing an offender to the maximum sentence. See State v. Foster,
109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470; former R.C. 2929.14(C). Former
R.C. 2929.14(C) only authorized a trial court to impose the maximum sentence upon
the following: (1) offenders who committed the worst forms of the offense; (2)
offenders who posed the greatest likelihood of committing future crimes; (3) certain
major drug offenders; and (4) certain repeat violent offenders. The statute
embodied a public policy disfavoring maximum sentences except for the most
deserving offenders. State v. Edmonson, 86 Ohio St.3d 324, 328, 326, 1999-Ohio-
110, 715 N.E.2d 131.
Pre-Foster, trial courts also had to make certain findings before
imposing a sentence that was more than the minimum sentence allowed. Former
R.C. 2929.14(B) (trial courts had to impose the shortest prison sentence unless the
trial court found “(1) The offender was serving a prison term at the time of the
offense, or the offender previously had served a prison term” or “that the shortest
prison term will demean the seriousness of the offender’s conduct or will not
adequately protect the public from future crime by the offender or others.”).
In one of the other cases cited by York, State v. Clagg, 4th Dist.
Washington No. 04CA30, 2005-Ohio-4992, the Fourth District found that the trial
court erred when sentencing the defendant for aggravated arson because it
considered the danger that Clagg posed to firefighters when committing the offense.
Id. at ¶ 26. The court explained that “[b]ecause the risk of harm to the firefighters
was an element of the offense, we find that the trial court could not properly consider
it as a factor justifying a greater than minimum sentence without explaining why the
danger was something more than a required element of the offense.” Id.
However, in Foster, the Ohio Supreme Court held in pertinent part
that “[t]rial courts have full discretion to impose a prison sentence within the
statutory range and are no longer required to make findings or give their reasons for
imposing maximum, consecutive, or more than the minimum sentences.” Id. at
paragraph seven of the syllabus. Although the General Assembly revived the
consecutive sentencing provision in Am.Sub.H.B. No. 86, which became effective on
September 30, 2011, it never revived the “more than the minimum” and maximum
sentencing provisions. State v. Blackburn, 8th Dist. Cuyahoga Nos. 97811 and
97812, 2012-Ohio-4590, ¶ 30; State v. McHugh, 8th Dist. Cuyahoga No. 108372,
2020-Ohio-1024, ¶ 22. Therefore, the cases that York cites to are not applicable.
We further note that in making these arguments, York is essentially
challenging the trial court’s weighing of the seriousness and recidivism factors set
forth in R.C. 2929.12 and asking this court to independently reweigh those factors.
With respect to our review of a trial court’s consideration of the factors set forth in
R.C. 2929.12, the Ohio Supreme Court recently explained:
R.C. 2953.08(G)(2)(a) permits an appellate court to modify or vacate a
sentence if it clearly and convincingly finds that “the record does not
support the sentencing court’s findings under” certain specified
statutory provisions.” But R.C. 2929.11 and 2929.12 are not among the
statutory provisions listed in R.C. 2953.08(G)(2)(a). Only R.C.
2929.13(B) and (D), 2929.14(B)(2)(e) and (C)(4), and 2929.20(I) are
specified.
***
R.C. 2953.08(G)(2)(b) therefore does not provide a basis for an
appellate court to modify or vacate a sentence based on its view that the
sentence is not supported by the record under R.C. 2929.11 and
2929.12.
***
Nothing in R.C. 2953.08(G)(2) permits an appellate court to
independently weigh the evidence in the record and substitute its
judgment for that of the trial court concerning the sentence that best
reflects compliance with R.C. 2929.11 and 2929.12. In particular, R.C.
2953.08(G)(2) does not permit an appellate court to conduct a
freestanding inquiry like the independent sentence evaluation [the
Supreme Court] must conduct under R.C. 2929.05(A) when reviewing
a death penalty-sentence.
Jones, Slip Opinion No. 2020-Ohio-6729, ¶ 28, 39, 42.
We therefore cannot do what York is requesting us to do, namely,
independently weigh the evidence in the record and substitute our judgment for that
of the trial court regarding the seriousness and recidivism factors set forth in R.C.
2929.12. Because we cannot second guess the trial court’s application of these
factors, York’s argument is without merit.
Accordingly, we overrule York’s second assignment of error.
Judgment affirmed.
It is ordered that appellee recover from appellant the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending is terminated. Case remanded to
the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
MARY J. BOYLE, ADMINISTRATIVE JUDGE
SEAN C. GALLAGHER, J., and
EMANUELLA D. GROVES, J., CONCUR