State v. Wright , 2018 Ohio 1982 ( 2018 )

[Cite as State v. Wright, 2018-Ohio-1982.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
FAYETTE COUNTY
STATE OF OHIO, : CASE NO. CA2017-10-021
Plaintiff-Appellee, : OPINION
5/21/2018
:
- vs -
:
DONNIE E. WRIGHT, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS
Case No. CRI 20170148
Jess C. Weade, Fayette County Prosecuting Attorney, Fayette County Courthouse, 110 E.
Court St., 1st Floor, Washington, C.H., Ohio 43160, for plaintiff-appellee
Steven H. Eckstein, 1208 Bramble Ave., Washington C.H., Ohio 43160, for defendant-
appellant
M. POWELL, J.
{¶ 1} Defendant-appellant, Donnie Wright, appeals his conviction and sentence in
the Fayette County Court of Common Pleas for unlawful sexual conduct with a minor.
{¶ 2} In early December 2016, appellant began dating a woman ("Mother"). Within
days, appellant moved into Mother's house. Mother has a daughter ("the victim") who also
resided with her. Later that month, appellant began having sexual intercourse with the
Fayette CA2017-10-021
victim. The victim was 14 years old; appellant turned 49 years old on December 30, 2016.
Between December 2016 and late February 2017, as appellant's relationship with Mother
continued, appellant engaged in sexual intercourse with the victim multiple times a day in
his car or in Mother's home. The sexual abuse ended on March 1, 2017, after the victim
confessed to a family friend ("Family Friend") who informed Mother. The police were
notified on March 3, 2017; four days later, Detective Thomas Queen of the Washington
Court House Police Department began an investigation. During the investigation, the
detective interviewed the victim. He also interviewed Mike Ratliff, a former lifelong friend of
appellant. In April 2017, the victim had a forensic interview at the Child Protection Center
of Ross County which included a medical examination by Dr. Amy Luckeydoo, a
pediatrician.
{¶ 3} Appellant was indicted in May 2017 on five counts of unlawful sexual conduct
with a minor. Each count included the specification that appellant was ten or more years
older than the victim. A jury trial was held on October 14, 2017.1 The victim, Dr. Luckeydoo,
Detective Queen, Family Friend, and Ratliff testified on behalf of the state Appellant did
not testify or present witnesses on his behalf.
{¶ 4} Dr. Luckeydoo testified that during the medical examination, the victim stated
that she and appellant had vaginal intercourse on several occasions and that it ended in
March 2017. The victim further told the physician that appellant had bought her a ring which
she refused to wear, and that he had told her she should not tell anybody about their
relationship.
{¶ 5} Family Friend became suspicious of a sexual relationship between appellant
and the victim when she observed the two holding hands for long periods of time and kissing
1. The record shows that a first jury trial was held on August 23, 2017. That jury trial ended in a hung jury
and a mistrial was declared.
-2-
Fayette CA2017-10-021
on the lips in a nonplatonic manner on several occasions. Family Friend testified that when
she accompanied the victim to a hospital one day, she observed the victim receiving several
text messages from appellant. In particular, one of the text messages stated, "What if you
are pregnant, it would be mine?" On cross-examination, Family Friend admitted she did
not personally see appellant's name or phone number on those text messages. Rather, the
victim told her that the text messages were from appellant.
{¶ 6} Family Friend further testified that on one occasion, appellant and the victim
stayed at home while Family Friend and Mother went somewhere. When Family Friend
came back to the house, the victim, who was "a little bit worked up or excited," told her that
appellant "had just fucked her on a * * * table." Family Friend eventually confronted the
victim and the latter admitted she was having a sexual relationship with appellant. Family
Friend told Mother. The two women confronted appellant who packed his belongings and
left Mother's home.
{¶ 7} Ratliff testified that while he and appellant were having a beer one day,
appellant told him that he and the victim "were having sex." Ratliff stated that appellant told
him about the sexual relationship on about four separate occasions. Ratliff did not tell
anyone until August 2017 when Detective Queen came to his home to interview him. Ratliff
explained he was no longer talking to appellant as the two recently had a falling out on an
unrelated matter.
{¶ 8} Detective Queen provided appellant's date of birth and testified that appellant
was 49 years old. The detective testified he interviewed Ratliff on August 24, 2017. By
then, Ratliff and appellant were no longer speaking to one another. During her interview
with the detective, the victim admitted that she and appellant had engaged in sexual
intercourse over several months, three to four times a day. The victim, however, denied
having sex on the kitchen table because "it would break if she did." The detective testified
-3-
Fayette CA2017-10-021
he retrieved the victim's cellphone. However, only a handful of text messages was
recovered as the victim had deleted her text and Facebook messages. The detective further
testified that he did not request a rape kit and that there was no DNA or other forensic
evidence to be collected due to the passage of time and the fact appellant was living in
Mother's home and dating Mother at the same time he was having sexual intercourse with
the victim.
{¶ 9} The victim testified that she and appellant started to have sexual intercourse
the same month appellant began dating Mother and moved into Mother's home. The victim
was 14 years old and was never married to appellant. Although the victim indicated she
wanted the relationship, appellant was the one who sought out the relationship. Appellant
further asked her if she "could have his kids." While appellant never bought her a ring or
anything else, he promised her he would buy her a ring, "a house and just basically
everything."
{¶ 10} The victim testified she and appellant had intercourse several times a day, in
his car or in Mother's home. The victim admitted having sex on the kitchen table. They
stopped having sex on February 20, 2017, because she was constipated and menstruating.
The victim testified the relationship ended when she told Family Friend about it and Family
Friend told Mother.
{¶ 11} The victim admitted she lied to several persons regarding her relationship with
appellant. Specifically, she lied to Mother when she told her she was not in a relationship
with appellant. She lied to Detective Queen when she denied having sex with appellant on
the kitchen table. The victim explained she lied to the detective because she was scared
and having sex on a kitchen table is "disgusting." The victim lied to Dr. Luckeydoo when
she told her appellant had given her a ring. The victim could not explain why she had lied
"about something so small" when she had admitted to Dr. Luckeydoo that she was in a
-4-
Fayette CA2017-10-021
sexual relationship with appellant.
{¶ 12} After the state rested its case-in-chief, Counts 1 and 5, which respectively
covered the time period of November 2016 and March 2017, were dismissed at the state's
request. Appellant moved for a Crim.R. 29(A) acquittal, which was overruled by the trial
court. After the jury retired to deliberate, appellant advised the trial court that as the jury
was exiting the courtroom and passing by the victim, he heard the victim utter the word
"guilty." Appellant moved for a mistrial, arguing that the victim's improper communication
with the jury raised concerns about the jury's ability to be unbiased.
{¶ 13} The trial court first asked the prosecutor and defense counsel whether they
had heard anything. They had not. At the trial court's directive, the prosecutor questioned
the victim's advocate who was seated near the victim when the jury retired to deliberate.
The victim's advocate testified she did not hear either the victim or Mother utter the word
"guilty" as the jury retired. The trial court next sent a written question to the jurors, asking
them, "Did any juror hear any remark from anyone in the audience as you were exiting the
courtroom?" The jury foreperson reported to the trial court that all jurors answered "No."
The trial court then allowed appellant to proffer "what he believes took place," namely, that
as the jury walked by the victim, he heard either the victim or Mother say "guilty" twice.
{¶ 14} After the jury reached a verdict but before the verdict was read, the trial court
personally asked the jurors whether "any of the 12 of you that deliberated this case, as you
were exiting the jury box and on your way into the jury room[,] hear any remark or comment
from anyone in the audience?" Once again, the jurors replied "No." Consequently, the trial
court found that "the record reflects that unanimously no one heard any remark from anyone
in the audience as they were exiting the courtroom," and implicitly overruled appellant's
motion for a mistrial.
{¶ 15} The jury found appellant guilty of unlawful sexual conduct with a minor as
-5-
Fayette CA2017-10-021
charged in Counts 2, 3, and 4, and further found that appellant was ten years older than the
victim at the time of the offenses. The trial court sentenced appellant to an aggregate eight-
year prison term and classified him as a Tier II sex offender. At the sentencing hearing, the
trial court stated, "Costs are suspended in this case." However, in its judgment entry, the
trial court ordered appellant "to pay the costs of prosecution for which judgment and
execution is awarded."
{¶ 16} Appellant now appeals, raising four assignments of error. The first and
second assignments of error will be considered together.
{¶ 17} Assignment of Error No. 1:
{¶ 18} THE TRIAL COURT ERRED IN DENYING WRIGHT'S CRIM.R. 29 MOTION
FOR ACQUIT[T]AL AS THE EVIDENCE PRESENTED WAS INSUFFICIENT TO
CONCLUDE THAT GUILT HAD BEEN PROVEN BEYOND A REASONABLE DOUBT IN
VIOLATION OF HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL UNDER THE FIFTH,
SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION,
AND ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION.
{¶ 19} Assignment of Error No. 2:
{¶ 20} THE TRIAL COURT ERRED IN ENTERING A FINDING OF GUILTY
BECAUSE SUCH VERDICT WAS AGAINST THE MANIFEST [ ] WEIGHT OF THE
EVIDENCE. FIFTH AND FOURTEENTH AMENDMENTS, UNITED STATES
CONSTITUTION, AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION.
{¶ 21} Appellant argues that his conviction for unlawful sexual conduct with a minor
is not supported by sufficient evidence and is against the manifest weight of the evidence
because there was no physical evidence of the offense, and the state's evidence consisted
of the testimony of the victim, "who was shown to be a liar," and the testimony of various
state witnesses who simply repeated what the victim had told them. In other words,
-6-
Fayette CA2017-10-021
appellant asserts that "[b]oiling it all down[,] the state ha[d] only one witness who has a
penchant for lying."
{¶ 22} Crim.R. 29(A) provides that "[t]he court on motion of a defendant or on its own
motion, after the evidence on either side is closed, shall order the entry of a judgment of
acquittal * * * if the evidence is insufficient to sustain a conviction of such offense or
offenses." An appellate court reviews the denial of a Crim.R. 29(A) motion pursuant to the
same standard as that used to review a sufficiency-of-the-evidence claim. State v.
Workman, 12th Dist. Clermont Nos. CA2016-12-082 and CA2016-12-083, 2017-Ohio-8638,
¶ 19.
{¶ 23} When reviewing the sufficiency of the evidence underlying a criminal
conviction, an appellate court examines the evidence in order to determine whether such
evidence, if believed, would support a conviction. Id. at ¶ 20. The relevant inquiry is
"whether, after viewing the evidence in a light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime proven beyond a
reasonable doubt." State v. Watson, 12th Dist. Warren No. CA2014-08-110, 2015-Ohio-
2321, ¶ 22.
{¶ 24} A manifest weight of the evidence challenge, on the other hand, examines the
"inclination of the greater amount of credible evidence, offered at a trial, to support one side
of the issue rather than the other." State v. Bradbury, 12th Dist. Butler No. CA2015-06-111,
2016-Ohio-5091, ¶ 17. To determine whether a conviction is against the manifest weight of
the evidence, the reviewing court must look at the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of the witnesses, and determine whether in
resolving the 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. Id. An appellate court will overturn a conviction due to the manifest weight of the
-7-
Fayette CA2017-10-021
evidence only in extraordinary circumstances when the evidence presented at trial weighs
heavily in favor of acquittal. Id. at ¶ 18. A "determination that a conviction is supported by
the manifest weight of the evidence will also be dispositive of the issue of sufficiency." State
v. Peyton, 12th Dist. Butler No. CA2015-06-112, 2017-Ohio-243, ¶ 48.
{¶ 25} Appellant was convicted of unlawful sexual conduct with a minor in violation
of R.C. 2907.04(A), which provides that no "person who is eighteen years of age or older
shall engage in sexual conduct with another, who is not the spouse of the offender, when
the offender knows the other person is thirteen years of age or older but less than sixteen
years of age, or the offender is reckless in that regard." Sexual conduct includes "vaginal
intercourse between a male and female." R.C. 2907.01(A).
{¶ 26} Upon thoroughly reviewing the record, we find that the jury did not lose its way
and create a manifest miscarriage of justice in finding appellant guilty of unlawful sexual
conduct with a minor and in finding that he was ten years older than the victim at the time
of the offense. At the time of the sexual abuse, the victim was 14 years old and was not
married to appellant. Appellant was over the age of 18 and 35 years older than the victim.
The victim testified that she and appellant engaged in sexual intercourse multiple times a
day for three months and that the relationship only ended when she told Family Friend about
it. This testimony, if believed, was enough to convict appellant of unlawful sexual conduct
with a minor. State v. Jones, 12th Dist. Butler No. CA2012-03-049, 2013-Ohio-150, ¶ 21.
"In sex offense cases, Ohio courts have consistently held that a victim's testimony need not
be corroborated in order to support a conviction." Id.{¶ 27} Appellant nevertheless challenges his conviction, arguing that the state's
evidence consisted solely of the testimony of the victim, "who was shown to be a liar," and
the testimony of various state witnesses who simply repeated what the victim had told them.
{¶ 28} Contrary to appellant's assertion, the evidence presented by the state did not
-8-
Fayette CA2017-10-021
solely consist of the victim's testimony and the testimony of various state witnesses who
simply repeated what the victim had told them. While it is true that Detective Queen, Dr.
Luckeydoo, and Family Friend all testified as to what appellant had told them, Family Friend
further testified she observed appellant and the victim hold hands for long periods of time
and kiss on the lips on several occasions. Family Friend noted that the kissing was not
platonic. Additionally, Ratliff testified that on more than one occasion, appellant told him he
was having sex with the victim.
{¶ 29} Furthermore, the inconsistencies between the victim's statements to
Detective Queen and Dr. Luckeydoo and her trial testimony did not relate to the victim's
claim that she was engaged in a sexual relationship with appellant. Jones, 2013-Ohio-150at ¶ 21. Indeed, while the victim lied about a ring and having sex on the kitchen table, she
never denied having sexual intercourse with appellant when questioned by the detective,
when examined by the physician, and when confronted by Family Friend. In addition, during
her trial testimony, the victim admitted she had lied to several persons and tried to explain
why she had done so.
{¶ 30} Consequently, we decline to overturn the jury's verdict because the victim
"was shown to be a liar." As the trier of fact, the jury was in the best position to judge her
credibility and determine what weight to give to her testimony. State v. Smith, 12th Dist.
Warren Nos. CA2012-02-017 and CA2012-02-018, 2012-Ohio-4644, ¶ 42. By its verdict,
the jury plainly chose to credit the testimony of the victim.
{¶ 31} Appellant further challenges his conviction, arguing there was no physical
evidence to corroborate the victim's allegations. We have held that a lack of physical
evidence of a sex offense does not mean the offense did not occur as testified by a victim.
See State v. Childers, 12th Dist. Warren No. CA2014-02-034, 2014-Ohio-4895. Ohio courts
have further held that there is no requirement that a defendant's conviction for a sex offense,
-9-
Fayette CA2017-10-021
including one for unlawful sexual conduct with a minor, be based on physical evidence. See
State v. Wareham, 3d Dist. Crawford No. 3-12-11, 2013-Ohio-3191; State v. J.E.C., Jr.,
10th Dist. Franklin No. 12AP-584, 2013-Ohio-1909.
{¶ 32} While appellant is correct that no physical evidence implicates him,
circumstantial evidence and direct evidence inherently have the same probative value, and
in some instances, certain facts can only be established by circumstantial evidence. State
v. Jenks, 61 Ohio St.3d 259, 272 (1991); State v. Petit, 12th Dist. Madison No. CA2016-01-
005, 2017-Ohio-633, ¶ 18. A conviction based on circumstantial evidence is no less sound
than one based on direct evidence. Petit at ¶ 18. The victim and Ratliff both testified about
appellant's sexual relationship with the victim. Furthermore, given the passage of time
between the last act of sexual intercourse on February 20, 2017, and the March 3, 2017
call to the police, and the fact appellant was dating Mother and living in Mother's home at
the same time he was having sexual intercourse with the victim, physical evidence with any
evidentiary value was unlikely to exist and its absence is understandable. See State v.
Woodward, 12th Dist. Butler No. CA2011-02-036, 2011-Ohio-6019.
{¶ 33} In light of the foregoing, we find that appellant's conviction for unlawful sexual
conduct with a minor is not against the manifest weight of the evidence. The jury heard all
of the testimony, considered the evidence, and found the state's theory of the case and its
witnesses credible, and we will not disturb the jury's verdict on appeal. Our determination
that the conviction is supported by the weight of the evidence is also dispositive of the issue
of sufficiency. Peyton, 2017-Ohio-243 at ¶ 48.
{¶ 34} Appellant's first and second assignments of error are overruled.
{¶ 35} Assignment of Error No. 3:
{¶ 36} WRIGHT WAS DENIED A FAIR TRIAL WHEN THE TRIAL COURT
OVERRULED HIS MOTION FOR A MISTRIAL DENYING HIM OF HIS DUE PROCESS
- 10 -
Fayette CA2017-10-021
RIGHTS UNDER THE UNITED STATES AND OHIO CONSTITUTIONS.
{¶ 37} Appellant argues the trial court erred in denying his motion for a mistrial.
Appellant asserts the jury could not be impartial during its deliberations given the victim's
improper communication with the jury when it retired to deliberate and the trial court's failure
to have the victim questioned about such communication.
{¶ 38} Trial courts have broad discretion in deciding whether to grant a mistrial. State
v. Ahmed, 103 Ohio St.3d 27, 2004-Ohio-4190, ¶ 92. "The granting of a mistrial is
necessary only when a fair trial is no longer possible." State v. Conway, 108 Ohio St.3d
214, 2006-Ohio-791, ¶ 160. A trial court is in the best position to determine whether the
situation in the courtroom warrants a mistrial. State v. Glover, 35 Ohio St.3d 18, 19 (1988).
{¶ 39} "In a criminal case, any private communication, contact, or tampering, directly
or indirectly, with a juror during a trial about the matter pending before the jury is * * *
deemed presumptively prejudicial, if not made in pursuance of known rules of the court and
the instructions and directions of the court made during the trial, with full knowledge of the
parties." Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450 (1954).
{¶ 40} In cases involving outside influences on jurors, trial courts are granted broad
discretion in dealing with the contact and determining whether to declare a mistrial or to
replace an affected juror. Conway, 2006-Ohio-791 at ¶ 160. Claims of juror partiality may
be vindicated in a hearing in which the defendant has an opportunity to prove actual bias.
Id. The defense must establish that the improper communication biased one or more jurors.
State v. Herring, 94 Ohio St.3d 246, 259 (2002). A trial court is permitted to rely on a juror's
testimony in determining that juror's impartiality. Conway at ¶ 163.
{¶ 41} Upon learning that the victim had allegedly improperly communicated with the
jury as it retired to deliberate, the trial court first asked the prosecutor and defense counsel
whether they had heard anything. They had not. At the trial court's directive, the prosecutor
- 11 -
Fayette CA2017-10-021
questioned the victim's advocate who was seated near the victim when the jury retired to
deliberate. The victim's advocate testified she did not hear any comment from the victim
as the jury retired. Subsequently, the trial court twice questioned the jurors about the
comment, first via a written question sent to the deliberation room, and then, after the jury
had reached a verdict but before the verdict was read. Both times, the jurors denied hearing
any remark when they exited the courtroom to deliberate. Neither the state nor defense
counsel objected to the questioning or requested any additional inquiry. Appellant now
asserts that the trial court should have allowed him to question the victim about her
statement to the jury. However, appellant never requested that the victim be questioned
about the matter.
{¶ 42} In light of the foregoing, we find that the trial court did not abuse its discretion
in denying appellant's motion for a mistrial. Appellant has failed to establish that an
improper communication or contact occurred between the victim and the jury and has failed
to present any evidence that the jury was improperly influenced by the victim. See Wright
v. Angelone, 151 F.3d 151 (4th Cir.1998).
{¶ 43} Appellant's third assignment of error is overruled.
{¶ 44} Assignment of Error No. 4:
{¶ 45} WRIGHT'S SENTENCE IS CONTRARY TO LAW.
{¶ 46} Appellant argues, and the state concedes, that the trial court erred in ordering
appellant to pay "the costs of prosecution" in its judgment entry when the trial court
expressly stated that such "costs [were] suspended" at the sentencing hearing. In support
of his argument, appellant cites this court's opinion in State v. Brannon, 12th Dist. Butler
No. CA2016-05-096, 2017-Ohio-628.
{¶ 47} We review appellant's sentence under the standard of review set forth in R.C.
2953.08(G)(2), which governs all felony sentences. State v. Marcum, 146 Ohio St.3d 516,
- 12 -
Fayette CA2017-10-021
2016-Ohio-1002, ¶ 1. Pursuant to that statute, an appellate court may "increase, reduce,
or otherwise modify a sentence * * * or may vacate the sentence and remand the matter to
the sentencing court for resentencing" if the appellate court finds by clear and convincing
evidence that "the record does not support the trial court's findings under relevant statutes
or that the sentence is otherwise contrary to law." Id.; R.C. 2953.08(G)(2)(a)-(b).
{¶ 48} R.C. 2947.23(A)(1)(a) provides that a trial court "shall include in the sentence
the costs of prosecution, including any costs under [R.C.] 2947.231, and render a judgment
against the defendant for such costs." However, despite the mandatory language of the
statute, a trial court may waive the payment of costs. Brannon, 2017-Ohio-628 at ¶ 37.
Because the imposition of court costs is civil in nature and distinct from a criminal
punishment, an error by the trial court in imposing court costs "does not create [a] taint on
the criminal sentence," but rather, "only [affects] the court and the defendant." Id.; State v.
Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, ¶ 20-21. Furthermore, a trial court's inadvertent
error does not render a sentence contrary to law; rather, such a clerical mistake may be
corrected by the court through a nunc pro tunc entry to reflect what actually occurred in
open court. Brannon at ¶ 37; State v. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, ¶ 30.
{¶ 49} As stated above, the trial court expressly stated, "Costs are suspended in this
case" at the sentencing hearing. However, the trial court's judgment entry ordered appellant
"to pay the costs of prosecution." As in Brannon, we are unable to determine whether the
trial court intended to impose court costs given the discrepancy between the trial court's
statement at sentencing that court costs were suspended and the judgment entry's
imposition of such costs. The sentence did not become a final order until the sentencing
entry was journalized. Brannon at ¶ 40. Therefore, even though the trial court stated during
the sentencing hearing that court costs would be suspended, the court remained free to
impose court costs. However, if the trial court intends to impose court costs, it must do so
- 13 -
Fayette CA2017-10-021
in appellant's presence. Id.; Crim.R. 43(A).
{¶ 50} Appellant's fourth assignment of error is sustained.
{¶ 51} We therefore reverse and remand this matter to the trial court for the limited
purpose of imposing costs. Upon remand, the trial court shall either conduct a further
sentencing hearing in the presence of appellant to make a determination with respect to the
imposition of court costs or simply issue a nunc pro tunc sentencing entry waiving court
costs consistent with its statement at appellant's sentencing hearing. Brannon, 2017-Ohio-
628 at ¶ 40. In all other respects, the trial court's judgment is affirmed.
{¶ 52} Judgment affirmed in part, reversed in part, and remanded to the trial court
for further proceedings.
RINGLAND, P.J., and PIPER, J., concur.
- 14 -