State v. Stanaford ( 2019 )

[Cite as State v. Stanaford, 2019-Ohio-1377.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 27940
:
v. : Trial Court Case No. 2016-CR-3039
:
RANDY STANAFORD : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 12th day of April, 2019.
...........
MATHIAS H. HECK, JR., by MICHAEL P. ALLEN, Atty. Reg. No. 0095826, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
Attorney for Plaintiff-Appellee
THOMAS M. KOLLIN, Atty. Reg. No. 0066964, 3725 Pentagon Boulevard, Suite 270,
Beavercreek, Ohio 45431
Attorney for Defendant-Appellant
.............
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DONOVAN, J.
{¶ 1} Defendant-appellant Randy Stanaford appeals his conviction and sentence
for one count of kidnapping (sexual activity) (sexually motivated specification), in violation
of R.C. 2905.01(A)(4), a felony of the first degree, and one count of rape (child under 13
years of age), in violation of R.C. 2907.02(A)(1)(b), also a felony of the first degree. Both
counts were accompanied by a sexually violent predator specification. Stanaford filed a
timely notice of appeal with this Court on March 14, 2018.
{¶ 2} The incident which forms the basis for Stanaford’s conviction occurred on the
morning of September 26, 2016, when the 11-year old victim, K.C. left her residence to
walk to her school bus stop. P.S., K.C.’s guardian, testified that the house where they
resided together was five or six houses down from the intersection where the bus stop
was located. K.C. testified that, as she waited for her bus to arrive, she observed an
individual walking back and forth from the corner of the street to a nearby alley. K.C.
described the individual as a white male in his 40s with long hair and a beard, who was
wearing a red hat, jeans, and a black shirt. K.C. also testified that the man was carrying
a red string backpack. K.C. testified that the man made her uncomfortable, so she
moved closer to the street by her bus stop.
{¶ 3} Shortly thereafter, K.C. testified that someone grabbed her by the neck from
behind and placed a hand over her mouth so she could not call for help. The perpetrator
picked K.C. up from the ground and carried her to the side of a nearby house. K.C.
testified that she tried to turn around in order to see her attacker, but the man told her not
to do so and threatened her life. The perpetrator pressed a knife to K.C.’s throat, pulled
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down her pants and underwear, and inserted two fingers inside her vagina. The
perpetrator then took K.C.’s hand and forced her to touch his exposed penis. Thereafter,
the perpetrator made K.C. kneel down on the ground and count to ten. Once the
perpetrator had fled from the scene, K.C. stood up and ran back to her residence.
{¶ 4} Upon returning home, K.C. immediately informed P.S. that she had been
assaulted. P.S. testified that upon returning home, K.C. appeared to be in a disheveled
state, with dirt on her hands and knees, and she was shaking. P.S. directed her oldest
daughter to call 911, while she ran outside to see if she could locate the perpetrator.
K.C. spoke to the 911 operator and reported that she had just been assaulted.
{¶ 5} Dayton Police Officer Scott Carico was the first officer to respond to the 911
call. Upon arriving, Officer Carico spoke to K.C. and P.S. regarding the incident. K.C.
directed Officer Carico to the area where the perpetrator had taken her. Officer Carico
testified that he observed imprints in the grass that resembled knee indentations. Officer
Carico testified that he also observed grass stains on K.C.’s pants in the knee area which
matched the indentations on the ground where she was assaulted.
{¶ 6} After he interviewed her, Officer Carico transported K.C. and P.S. to Dayton
Children’s Hospital. After arriving at the hospital, K.C. was examined by a Pediatric
Sexual Assault Nurse Examiner (P-SANE) Jean Williams. At the beginning of the
examination, K.C. told Williams about the sexual assault. Williams then prepared a rape
kit in which she placed swabs taken from K.C., as well as the clothes K.C. was wearing
during the assault. Williams testified that during the examination, she found grass and
petechiae in K.C.’s vagina and a candy wrapper in her hair.
{¶ 7} K.C.’s rape kit and her clothes were then sent to the Miami Valley Regional
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Crime Lab for DNA testing. DNA Forensic Scientist Emily Draper analyzed the swabs
and K.C.’s clothes in order to determine if any DNA was present. While the vaginal
swabs were negative for the presence of semen, the analysis of K.C.’s underwear was
positive for the presence of semen and showed a mixed DNA profile. Furthermore,
Draper’s analysis revealed a partial male DNA profile. Draper entered the male DNA
profile into the national database, and it indicated defendant-appellant Stanaford as a
possible suspect.
{¶ 8} On September 29, 2016, the Dayton Police Department contacted
Stanaford’s parole officer, Leon Medvec, and requested his assistance in locating
Stanaford, who was homeless at the time these events occurred. Medvec testified that
he drove around areas of Dayton that he knew Stanaford to frequent and eventually
located him on North Main Street. Medvec then contacted Dayton Police Detective
Hollie Bruss, who responded to Stanaford’s location. Detective Bruss testified that once
she located Stanaford, she stopped him and then searched him. Stanaford had a knife
and a cell phone in his possession.
{¶ 9} Stanaford was transported to the Dayton Police Safety Building, where he
was interviewed by Detective Bruss and Detective Joshua Spears. Stanaford denied
ever being in the area where the incident occurred on September 26, 2016. As the
interview was coming to a close, Detective Bruss obtained Stanaford’s consent to collect
a DNA sample from him for testing at the crime lab; Stanaford was then taken to jail.
Detective Spears took possession of Stanaford’s phone and sent it to Dayton Police
Binary Intelligence for a forensic download. Draper testified that she compared the
original DNA sample taken from K.C.’s rape kit to the sample provided by Stanaford after
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being taken into custody. Draper testified that the DNA samples were found to be a
match to a reasonable degree of scientific certainty.
{¶ 10} On October 7, 2016, Stanaford was indicted for one count of kidnapping
(sexual activity) (sexually motivated specification) and one count of rape (child under 13
years of age). As previously stated, each count was accompanied by a sexually violent
predator specification. At his arraignment on October 13, 2016, Stanaford stood mute,
and the trial court entered a plea of not guilty on his behalf.
{¶ 11} On November 11, 2016, Stanaford filed two motions to suppress regarding
his identification, search, seizure, and his alleged consent to collect his DNA. On
November 15, 2016, Stanaford filed a third motion to suppress with respect to the search
warrant granted to the police to examine the digital contents of the cell phone found in his
possession. A hearing on all of Stanaford’s motions to suppress began on November
30, 2016, and concluded on December 9, 2016, at which point the trial court took the
matter under advisement. On January 4, 2017, the trial court overruled the motions to
suppress on the record, and it journalized its decision on January 13, 2017.
{¶ 12} On October 17, 2017, Stanaford filed a motion to sever and/or bifurcate the
sexually violent predator specifications and to have the specifications tried to the bench.
The trial court granted Stanaford’s motion to sever, and the case proceeded to a jury trial
on October 23, 2017. At the conclusion of the trial on October 27, 2017, Stanaford was
found guilty of both counts in the indictment. On January 29, 2018, the bench trial
regarding the sexually violent predator specifications began. At the conclusion of the
bench trial, the trial court took the matter under advisement. On February 5, 2018, the
trial court found Stanaford guilty of both specifications.
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{¶ 13} On February 27, 2018, the trial court sentenced Stanaford to 15 years to life
in prison for kidnapping and life in prison without the possibility of parole for rape.
Furthermore, the trial court ordered that the sentences be served consecutively, and
Stanaford was designated a Tier III Sex Offender.
{¶ 14} It is from this judgment that Stanaford now appeals.
{¶ 15} Stanaford presents five assignments of error on appeal. Because of the
nature of his arguments, we will address these assignments in the order which facilitates
our discussion, rather than in the order of their presentation.
{¶ 16} Stanaford’s second assignment of error is as follows:
THE TRIAL COURT ERRED WHEN IT OVERRULED
APPELLANT’S MOTION TO SUPPRESS.
{¶ 17} In his second assignment, Stanaford contends that the trial court erred
when it overruled his motion to suppress. Specifically, Stanaford argues that the
evidence adduced at the suppression hearing established that he did not provide a valid
waiver of his Miranda rights before being interviewed by the police because he was
suffering from sleep deprivation and also under the influence of illegal drugs. Stanaford
also argues that his consent to provide a DNA sample to Detective Bruss was invalid.
{¶ 18} 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.
As the trier of fact, a trial court “is in the best position to weigh * * * evidence * * * and
evaluate [the credibility of] witness[es],” so an “appellate court 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 the trial court’s findings of
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fact as true, “the appellate court must then independently determine, without deference
to the conclusion of the trial court, whether the facts satisfy the applicable legal standard.”
Id. at ¶ 8.
{¶ 19} “A suspect’s decision to waive his Fifth Amendment privilege is made
voluntarily absent evidence that his will was overborne and his capacity for self-
determination was critically impaired because of coercive police conduct.” State v. Dailey,
53 Ohio St. 3d 88, 559 N.E.2d 459 (1990), paragraph two of the syllabus. Statements
made after a voluntary waiver of rights are “presumed to be voluntary.” State v. Kelly, 2d
Dist. Greene No. 2004-CA-20, 2005-Ohio-305, ¶ 31.
{¶ 20} “Whether a statement was made voluntarily and whether an individual
knowingly, voluntarily, and intelligently waived his or her Miranda rights are distinct
issues.” State v. Lovato, 2d Dist. Montgomery No. 25683, 2014-Ohio-2311, ¶ 30.
Generally, statements made to police after a knowing, intelligent, and voluntary waiver of
an individual’s Miranda rights are presumed voluntary. Id. at ¶ 31. However, “[t]he
Miranda presumption applies to the conditions inherent in custodial interrogation that
compel the suspect to confess. It does not extend to any actual coercion police might
engage in, and the Due Process Clause continues to require an inquiry separate from
custody considerations and compliance with Miranda regarding whether a suspect’s will
was overborne by the circumstances surrounding his confession.” State v. Porter, 178
Ohio App. 3d 304, 2008-Ohio-4627, 897 N.E.2d 1149, ¶ 14 (2d Dist.). Therefore,
“[r]egardless of whether Miranda warnings were required and given, a defendant’s
statement may have been given involuntarily and thus be subject to exclusion.” State v.
Kelly, 2d Dist. Greene No. 2004-CA-20, 2005-Ohio-305, ¶ 11.
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{¶ 21} When making a determination regarding whether a valid waiver has
occurred, we 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.” State v. Edwards, 49 Ohio St. 2d 31, 358 N.E.2d 1051 (1976),
paragraph two of the syllabus, overruled on other grounds, 438 U.S. 911, 98 S. Ct. 3147,
57 L. Ed. 2d 1155 (1978).
{¶ 22} Initially, we note that we have reviewed the video recording of Stanaford’s
interview, which occurred at the Safety Building on September 29, 2016. Regarding his
Miranda rights, the record establishes that prior to being interviewed by Detectives Bruss
and Spears, Stanaford was properly informed of his rights, and he waived those rights
when he signed a pre-interview form. At the time of the interview, Stanaford was 40
years old and had obtained his GED. Stanaford also indicated to the detectives that he
had previously been informed of his Miranda rights. The interview lasted approximately
two hours, from 5:45 p.m. to 7:45 p.m. At no point during the interview did either
Detective Bruss or Spears act in a threatening or coercive manner, and they did not make
any promises to Stanaford. Significantly, Detective Bruss testified that Stanaford did not
appear to be under the influence of any alcohol or drugs and that he answered the
questions posed to him appropriately. Detective Bruss testified that, while she could not
recall exactly what Stanaford had said about his drug use, he appeared coherent and was
able to answer her questions clearly and appropriately. Based upon our own review of
the video recording of Stanaford’s interview, we find nothing to indicate that he was either
intoxicated or under the influence of drugs when he was questioned by Detectives Bruss
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and Spears.
{¶ 23} Under the totality of the circumstances, the record is clear that Detective
Bruss carefully and completely advised Stanaford of his rights, that he understood those
rights, and that he knowingly and voluntarily chose to waive them and speak to Detectives
Bruss and Spears without an attorney. The trial court thoroughly considered the
evidence that was presented at the suppression hearing, and the record supports the trial
court’s conclusions.
{¶ 24} The record further establishes that after the interview, Stanaford gave the
detectives consent to take a DNA sample from him. The detectives presented Stanaford
with a consent for DNA form. After the detectives explained why a DNA sample was
necessary, Stanaford signed the form and provided a sample. “The Fourth Amendment
test for a valid consent to search is that the consent be voluntary, and ‘[v]oluntariness is
a question of fact to be determined from all the circumstances.’ ” Ohio v. Robinette, 519
U.S. 33, 40, 117 S. Ct. 417, 136 L. Ed. 2d 347 (1996), citing Schneckloth v. Bustamonte,
412 U.S. 218, 248-249, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). The burden is on the
prosecution to demonstrate consent, and that burden “is not satisfied by showing a mere
submission to a claim of lawful authority.” Florida v. Royer, 460 U.S. 491, 497, 103 S. Ct.
1319, 75 L. Ed. 2d 229 (1983).
{¶ 25} In order to fulfill its burden, the state has to prove by clear and convincing
evidence that the consent was freely and voluntarily given. Schneckloth at 248-49. Clear
and convincing evidence is evidence “which is more than a mere ‘preponderance of the
evidence,’ but not to the extent of such certainty as is required ‘beyond a reasonable
doubt’ in criminal cases, and which will provide in the mind of the trier of facts a firm belief
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or conviction as to the facts sought to be established.” Cincinnati Bar Assn. v.
Massengale, 58 Ohio St. 3d 121, 122, 568 N.E.2d 1222 (1991), quoting Cross v. Ledford,
161 Ohio St. 469, 120 N.E.2d 118 (1954).
{¶ 26} Here, the trial court found no coercion when Stanaford waived of his
Miranda rights or when he signed the consent for DNA form. The fact that Stanaford
signed a written waiver is strong proof that the waiver was valid. State v. Mayberry, 2014-
Ohio-4706, 22 N.E.3d 222, ¶ 17 (2d Dist.); see also State v. Jackson, 5th Dist. Richland
No. 2012-CA-20, 2012-Ohio-5548, ¶ 35 (determining that defendant’s signing of a written
consent form was “strong proof” that she voluntarily gave police officers consent to search
a house). We conclude that the findings by the trial court were supported by the record,
as the record indicates that Stanaford knowingly, intelligently and voluntarily consented
to provide a DNA sample. Prior to signing the consent form, it was read aloud to him.
Because Stanaford knowingly and voluntarily consented to have DNA taken, the trial court
did not err when it overruled his motion to suppress in this regard.
{¶ 27} Stanaford’s second assignment of error is overruled.
{¶ 28} Because they are interrelated, we discuss Stanaford’s third and fourth
assignments of error together as follows:
THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S
MOTION FOR ACQUITTAL BECAUSE THERE WAS INSUFFICIENT
EVIDENCE FOR A REASONABLE FACT FINDER TO FIND THAT THE
APPELLANT WAS GUILTY BEYOND A REASONABLE DOUBT.
THE TRIAL COURT ERRED IN FINDING THE APPELLANT
GUILTY BECAUSE THE CONVICTIONS WERE AGAINST THE
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MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 29} In his third assignment, Stanaford argues that the trial court erred when it
overruled his Crim.R. 29 motion for acquittal because the evidence adduced by the State
was insufficient to support his convictions for rape and kidnapping. In his fourth
assignment of error, Stanaford argues that the trial court’s guilty verdicts were against the
manifest weight of the evidence.
{¶ 30} Crim.R. 29(A) states that a court shall order an entry of judgment of acquittal
if the evidence is insufficient to sustain a conviction for the charged offense. “Reviewing
the denial of a Crim.R. 29 motion therefore requires an appellate court to use the same
standard as is used to review a sufficiency of the evidence claim.” State v. Witcher, 6th
Dist. Lucas No. L-06-1039, 2007-Ohio-3960. “In reviewing a claim of insufficient
evidence, ‘[t]he relevant inquiry is whether, after reviewing 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.’ ” (Citations omitted.) State v.
Crowley, 2d Dist. Clark No. 2007 CA 99, 2008-Ohio-4636, ¶ 12.
{¶ 31} “A challenge to the sufficiency of the evidence differs from a challenge to
the manifest weight of the evidence.” State v. McKnight, 107 Ohio St. 3d 101, 2005-Ohio-
6046, 837 N.E.2d 315, ¶ 69. “A claim that a jury verdict is against the manifest weight of
the evidence involves a different test. ‘The court, reviewing the entire record, weighs the
evidence and all reasonable inferences, considers the credibility of witnesses and
determines whether in resolving conflicts in the evidence, the jury clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed and
a new trial ordered. The discretionary power to grant a new trial should be exercised
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only in the exceptional case in which the evidence weighs heavily against the
conviction.’ ” (Citations omitted.) Id. at ¶ 71.
{¶ 32} The credibility of the witnesses and the weight to be given to their testimony
are matters for the trier of fact to resolve. State v. DeHass, 10 Ohio St. 2d 230, 231, 227
N.E.2d 212 (1967). “Because the factfinder * * * has the opportunity to see and hear the
witnesses, the cautious exercise of the discretionary power of a court of appeals to find
that a judgment is against the manifest weight of the evidence requires that substantial
deference be extended to the factfinder’s determinations of credibility. The decision
whether, and to what extent, to credit the testimony of particular witnesses is within the
peculiar competence of the factfinder, who has seen and heard the witness.” State v.
Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684, *4 (Aug. 22, 1997).
{¶ 33} This court will not substitute its judgment for that of the trier of fact on the
issue of witness credibility unless it is patently apparent that the trier of fact lost its way in
arriving at its verdict. State v. Bradley, 2d Dist. Champaign No. 97-CA-03, 1997 WL
691510, *4 (Oct. 24, 1997).
Identification Evidence
{¶ 34} In his third assignment, Stanaford essentially argues that there was
insufficient evidence to prove that he was properly identified as the suspect who
kidnapped and raped K.C.
{¶ 35} In State v. Tate, 140 Ohio St. 3d 442, 2014-Ohio-3667, 19 N.E.3d 888, the
Ohio Supreme Court stated:
Every criminal prosecution requires proof that the person accused of
the crime is the person who committed the crime. This truism is reflected in
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the state’s constitutional burden to prove the guilt of “the accused” beyond
a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25
L. Ed. 2d 368 (1970). Like any fact, the state can prove the identity of the
accused by “circumstantial or direct” evidence. State v. Jenks, 61 Ohio
St.3d 259, 272-273, 574 N.E.2d 492 (1991). The relevant question in a
sufficiency-of-the-evidence review 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.” Id. at paragraph two of the syllabus, following Jackson v. Virginia,
443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
Id. at ¶ 15.
{¶ 36} Here, Stanaford argues that, because K.C. was not shown a photospread
or asked to identify him at any time prior to trial, a reasonable fact finder could not find
that he was properly identified as the perpetrator. However, viewing the evidence in the
light most favorable to the State, we find sufficient evidence to support the jury’s
conclusion that Stanaford was the individual who abducted and raped K.C. at knifepoint
on September 26, 2016. When interviewed by Officer Carico right after the assault, K.C.
described her attacker as a white male in his 40s with long hair and a beard, who was
wearing a red hat, jeans, and a black shirt. K.C. also testified that the man was carrying
a red string backpack.
{¶ 37} At the time of his arrest three days later on September 29, 2016, Stanaford
met the physical description of the attacker provided by K.C., although the clothing he
was wearing did not match the description. He was also found to be in possession of a
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knife, and the sexual assault occurred at knifepoint. Detective Bruss testified that after
interviewing Stanaford, she was able obtain surveillance video from a Montgomery
County facility in which Stanaford was depicted four hours after the attack occurred. In
the surveillance video, Stanaford can be seen holding a red string backpack.
{¶ 38} Most significant, however, was the DNA evidence collected from K.C.’s
underwear which linked Stanaford to the rape. As previously stated, DNA Forensic
Scientist Emily Draper analyzed the swabs from the rape kit and K.C.’s clothes in order
to determine if any DNA was present. The analysis of K.C.’s underwear was positive for
the presence of semen, thereby revealing a partial male DNA profile. Draper entered
the male DNA profile into the national database, and it indicated defendant-appellant
Stanaford as a possible suspect. Draper testified that she then compared the original
DNA sample taken from K.C.’s rape kit to the sample provided by Stanaford after being
taken into custody. Draper testified that the DNA samples were found to be a match to
a reasonable degree of scientific certainty. From all of the evidence adduced, a
reasonable jury could have found beyond a reasonable doubt that Stanaford was the
individual who committed the offenses of which he was convicted.
Stanaford’s Rape Conviction
{¶ 39} Stanaford was found guilty of rape in violation of R.C. 2907.02(A)(1)(b),
which provides:
No person shall engage in sexual conduct with another who is not the
spouse of the offender or who is the spouse of the offender but is living
separate and apart from the offender, when any of the following applies:
***
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The other person is less than thirteen years of age, whether or not the
offender knows the age of the other person.
{¶ 40} R.C. 2907.01(A) defines “sexual conduct” as “vaginal intercourse between
a male and female; anal intercourse, fellatio, and cunnilingus between persons regardless
of sex; and, without privilege to do so, the insertion, however slight, of any part of the
body or any instrument, apparatus, or other object into the vaginal or anal opening of
another. Penetration, however slight, is sufficient to complete vaginal or anal
intercourse.”
{¶ 41} After arriving at the hospital, K.C. was examined by Pediatric Sexual Assault
Williams. At the beginning of the examination, K.C. told Williams about the sexual
assault. Williams then prepared a rape kit in which she placed swabs taken from K.C.,
as well as the clothes K.C. was wearing during the assault. Williams testified that, during
the examination, she found grass and petechiae in K.C.’s vagina. Williams testified that
petechiae are caused by broken capillaries that are usually caused by force. Williams
also testified that petechiae are indicators of sexual abuse which she had observed before
in separate cases of sexual abuse. Additionally, Williams testified that finding a piece of
grass inside K.C. vagina would be consistent with the sexual assault occurring on grass.
{¶ 42} Dr. Dale Evans, the attending physician at Dayton Children’s Hospital when
K.C. was admitted, testified that he observed indications of trauma within K.C.’s vagina
consistent with the narrative K.C. had disclosed to Williams. Dr. Evans also testified that
he believed that the nature of K.C.’s injuries was consistent with digital penetration.
Viewing the evidence in the light most favorable to the State, we find sufficient evidence
to support the jury’s conclusion that Stanaford was guilty of rape.
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Stanaford’s Kidnapping Conviction
{¶ 43} R.C. 2905.01(A)(4) provides that “[n]o person, by force, threat, or deception,
or, in the case of a victim under the age of thirteen * * *, by any means, shall remove
another from the place where the other person is found or restrain the liberty of the other
person, * * * [t]o engage in sexual activity * * * with the victim against the victim’s will.”
{¶ 44} K.C., who was 11 years-old at the time of the assault, testified that an
individual, later identified as Stanaford, grabbed her by the neck from behind as she
waited at the bus stop and placed a hand over her mouth so she could not call for help.
The perpetrator picked K.C. up from the ground and carried her to the side of a nearby
house. K.C. testified that she tried to turn around in order to see her attacker, but the
man told her not to do so and threatened her life. The perpetrator pressed a knife to
K.C.’s throat, pulled down her pants and underwear, and inserted two fingers inside her
vagina. In support of her testimony that she had been forcibly moved from the bus stop,
K.C. testified that she took Officer Carico to the location where she was assaulted, and
there the officer observed imprints in the grass that K.C. explained were made by her
knees. Officer Carico testified that he indeed observed the imprints in the grass on the
side of the house, as well as the grass stains on K.C.’s knees. P.S. and Williams, the
nurse, also testified that they observed grass stains on K.C.’s pants. Moreover, P.S.
testified that the grass stains were not present when K.C. left for school earlier that
morning. Furthermore, K.C. testified that Stanaford ordered her to stay put and “count
to ten” as he fled.
{¶ 45} In our view, K.C.’s testimony was consistent with and corroborated by
physical evidence and the testimony of P.S., Officer Carico, and Williams. Viewing the
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evidence in the light most favorable to the State, we find sufficient evidence to support
Stanaford’s conviction for kidnapping.
Stanaford’s Sexually Violent Predator Specifications
{¶ 46} The trial court found Stanaford guilty of two sexually violent predator
specifications in violation of R.C. 2941.148(A). R.C. 2971.01(H)(1) defines a “sexually
violent predator” as “a person who, on or after January 1, 1997, commits a sexually violent
offense and is likely to engage in the future in one or more sexually violent offenses.” R.C.
2971.01(H)(2)(a)-(f) lists the factors that may be considered by the factfinder as evidence
tending to indicate that there is a likelihood that the person will engage in the future in
one or more sexually violent offenses. It provides:
(a) The person has been convicted two or more times, in separate criminal
actions, of a sexually oriented offense or a child-victim oriented offense.
For purposes of this division, convictions that result from or are connected
with the same act or result from offenses committed at the same time are
one conviction, and a conviction set aside pursuant to law is not a
conviction.
(b) The person has a documented history from childhood, into the juvenile
developmental years, that exhibits sexually deviant behavior.
(c) Available information or evidence suggests that the person chronically
commits offenses with a sexual motivation.
(d) The person has committed one or more offenses in which the person
has tortured or engaged in ritualistic acts with one or more victims.
(e) The person has committed one or more offenses in which one or more
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victims were physically harmed to the degree that the particular victim’s life
was in jeopardy.
(f) Any other relevant evidence.
Evid.R. 401 defines relevant evidence as “evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.”
{¶ 47} During the bench trial, the State adduced evidence regarding a criminal
case out of Middletown, Ohio, involving Stanaford in June 2008. Specifically, Stanaford
was found to have been watching a young girl, D.W., ride a bicycle around her
neighborhood. When she eventually rode past Stanaford, he attempted to grab her.
D.W. was able to escape, and she went and told her parents what had happened. The
parents chased Stanaford until he was able to get into a motor vehicle and flee the scene.
{¶ 48} During the investigation into the incident, police officers executed a search
warrant at the residence of Stanaford’s mother, where he had been living. During the
search, videotapes were found in the attic which contained approximately four hours of
recordings depicting young girls playing in public areas, filmed by Stanaford. When
interviewed by the Middletown police, Stanaford admitted to the incident involving D.W.
and to making the videotapes for the purpose of his own sexual gratification. During the
same interview, Stanaford admitted to breaking into a home in April 2008 and stealing
underwear belonging to a young girl he had observed outside the residence a short time
before.
{¶ 49} Thereafter, Stanaford pled guilty to attempted kidnapping (sexual activity)
and public indecency in the Butler County Court of Common Pleas. The burglary charge
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was dismissed. As a result of his convictions, Stanaford was sentenced to six years in
prison and designated as a Tier III sex offender.
{¶ 50} Medvec, Stanaford’s parole officer, also testified at the bench trial. Medvec
testified that Stanaford committed two violations while on parole. The first violation
occurred when Stanaford was removed from the computer library at Sinclair Community
College in Dayton, Ohio, for viewing pornography on a computer. The second violation
occurred when pornography and images of children were discovered in Stanaford’s
residence. As a result of the parole violations, Stanaford was returned to prison for 165
days.
{¶ 51} Detective Spears testified regarding evidence that was retrieved after a
forensic download from Stanaford’s cell phone, which had been taken from him at the
time of his arrest in the instant case. Specifically, the download revealed that the phone
had been used to access several pornographic websites and other related material on
September 28 and 29, 2016. Additionally, the download disclosed that the phone had
been used to download approximately 1,133 images, many of which were pornographic
in nature. When Stanaford was interviewed by Detectives Bruss and Spears, he
indicated that the cell phone in question had been in his possession on September 28
and 29, 2016. Significantly, the download revealed that no pornographic material was
found before those dates.
{¶ 52} Finally, evidence was adduced that Stanaford was convicted of public
indecency in 1998. Based upon that 1998 conviction, a psychologist from the Ohio
Department of Corrections diagnosed Stanaford as a pedophile at that time.
{¶ 53} Viewing the evidence in the light most favorable to the State, we find
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sufficient evidence to support Stanaford’s convictions for the two sexually violent predator
specifications.
Weight of the Evidence
{¶ 54} Lastly, having addressed the sufficiency arguments, we now turn to the
manifest weight challenge. Having reviewed the record, we find no merit in Stanaford’s
argument that his conviction was against the manifest weight of the evidence. It is well-
settled that evaluating witness credibility is primarily for the trier of fact. State v. Benton,
2d Dist. Miami No. 2010-CA-27, 2012-Ohio-4080, ¶ 7. Here, the jury could have
reasonably credited the extensive testimony provided by the State’s witnesses, applied
said evidence and all reasonable inferences to the elements of the offense, and found
Stanaford guilty of the kidnapping and rape of K.C. Having reviewed the entire record,
we cannot find that the evidence weighs heavily against conviction or that a manifest
miscarriage of justice has occurred.
{¶ 55} Stanaford’s third and fourth assignments of error are overruled.
{¶ 56} Stanaford’s first assignment off error is as follows:
THE TRIAL COURT ERRED WHEN IT WOULD NOT INSTRUCT
ON LESSER INCLUDED OFFENSES.
{¶ 57} In his first assignment, Stanaford contends that the trial court erred when it
refused to give the jury an instruction on lesser-included offenses of rape. Specifically,
Stanaford argues that the evidence adduced at trial required the trial court to give an
instruction on gross sexual imposition (GSI) as a lesser-included offense of rape.
{¶ 58} The decision whether to give a requested jury instruction is a matter left to
the sound discretion of the trial court, and its decision will not be disturbed on appeal
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absent an abuse of discretion. State v. Murrell, 2d Dist. Montgomery No. 24717, 2012-
Ohio-2108, ¶ 24, citing State v. Davis, 2d Dist. Montgomery No. 21904, 2007-Ohio-6680,
¶ 14. An abuse of discretion implies an arbitrary, unreasonable, or unconscionable
attitude on the part of the court. State v. Adams, 62 Ohio St. 2d 151, 404 N.E.2d 144
(1980).
{¶ 59} An offense may be a lesser-included offense of another only if (i) the offense
is a crime of lesser degree than the other, (ii) the offense of the greater degree cannot be
committed without the offense of the lesser degree also being committed, and (iii) some
element of the greater offense is not required to prove the commission of the lesser
offense. State v. Wilkins, 64 Ohio St. 2d 382, 415 N.E.2d 303 (1980). The mere fact that
an offense can be a lesser-included offense of another offense does not mean that a court
must instruct on both offenses whenever the greater offense is charged. Id. It is well-
settled that a charge on a lesser-included offense is required only when the evidence
presented at trial would reasonably support both an acquittal on the crime charged and a
conviction on the lesser-included offense. State v. Thomas, 40 Ohio St. 3d 213, 533
N.E.2d 286 (1988); State v. Reese, 2d Dist. Montgomery No. 22907, 2009-Ohio-5046.
{¶ 60} As previously stated, Stanaford was found guilty of rape in violation of R.C.
2907.02(A)(1)(b), which provides:
No person shall engage in sexual conduct with another who is not the
spouse of the offender or who is the spouse of the offender but is living
separate and apart from the offender, when any of the following applies:
***
The other person is less than thirteen years of age, whether or not the
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offender knows the age of the other person.
{¶ 61} Conversely, gross sexual imposition, in violation of R.C. 2907.05(A)(4),
consists of the following:
No person shall have sexual contact with another, not the spouse of the
offender; cause another, not the spouse of the offender, to have sexual
contact with the offender; or cause two or more other persons to have
sexual contact when any of the following applies:
***
The other person, or one of the other persons, is less than thirteen years of
age, whether or not the offender knows the age of that person.
{¶ 62} The primary difference between rape and gross sexual imposition is that the
former involves “sexual conduct” whereas the latter involves only “sexual contact.” State
v. Grant, 2d Dist. Montgomery No. 19824, 2003-Ohio-7240, ¶ 19.
{¶ 63} R.C. 2907.01(A) defines “sexual conduct” as “vaginal intercourse between
a male and female; anal intercourse, fellatio, and cunnilingus between persons regardless
of sex; and, without privilege to do so, the insertion, however slight, of any part of the
body or any instrument, apparatus, or other object into the vaginal or anal opening of
another. Penetration, however slight, is sufficient to complete vaginal or anal
intercourse.”
{¶ 64} R.C. 2907.01(B) defines “sexual contact” as “any touching of an erogenous
zone of another, including without limitation the thigh, genitals, buttock, pubic region, or,
if the person is a female, a breast, for the purpose of sexually arousing or gratifying either
person.”
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{¶ 65} We note that Stanaford’s defense at trial was not that a rape did not occur.
Rather, Stanaford’s defense was that he was not the individual who assaulted K.C.
Moreover, the evidence adduced at trial plainly established that Stanaford kidnapped K.C.
from the bus stop, took her to the side of a nearby house, and inserted two of his fingers
into her vagina. As the trial court found, the testimony of K.C., Dr. Evans, and nurse
Williams established that Stanaford digitally penetrated K.C. during the assault, thereby
constituting the “sexual conduct” element of rape. No evidence was adduced at trial that
would support a finding of the “sexual contact” element of gross sexual imposition.
{¶ 66} After a thorough review of the record, viewing the evidence in a light most
favorable to Stanaford, we find there was not sufficient evidence to allow the jury to
reasonably reject the greater offense of rape and find the defendant guilty of gross sexual
imposition. Therefore, the trial court did not err when it refused to instruct the jury
regarding the lesser-included offense of gross sexual imposition.1
{¶ 67} Stanaford’s first assignment of error is overruled.
{¶ 68} Stanaford’s fifth and final assignment is as follows:
THE TRIAL COURT ERRED WHEN IT FAILED TO MERGE THE
KIDNAPPING AND RAPE CONVICTIONS.
{¶ 69} In his fifth assignment, Stanaford contends that the trial court erred in failing
to merge his convictions for kidnapping and rape. Specifically, Stanaford argues that the
restraint of the victim was incidental to the rape and that no separate conduct or animus
existed.
1 In his brief, Stanaford does not argue that the trial court should have instructed on a
lesser included offense of kidnapping, such as abduction. Accordingly, we need not
address this issue.
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{¶ 70} R.C. 2941.25, Ohio’s allied offense statute, provides that:
(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the indictment or
information may contain counts for all such offenses, but the defendant may
be convicted of only one.
(B) Where the defendant’s conduct constitutes two or more offenses
of dissimilar import, or where his conduct results in two or more offenses of
the same or similar kind committed separately or with a separate animus as
to each, the indictment or information may contain counts for all such
offenses, and the defendant may be convicted of all of them.
{¶ 71} Initially, we note that Stanaford argues that the Ohio Supreme Court’s
decision in Newark v. Vazirani, 48 Ohio St. 3d 81, 549 N.E.2d 520 (1990), contains a two-
step analysis to be applied when determining whether offenses are subject to merger.
The Newark court focused its analysis on whether the elements of the offenses
overlapped based upon the defendant’s conduct in that case. The Newark court did not
compare the elements of the offenses in the abstract, but instead held that “the elements
of these two crimes are so similar that the commission of one offense necessarily results
in the commission of the other offense as applied to the facts of this case.” Id at 83.
Newark, however, is no longer the applicable standard for addressing merger issues.
{¶ 72} In State v. Ruff, 143 Ohio St. 3d 114, 2015-Ohio-995, 34 N.E.3d 892, the
Ohio Supreme Court clarified the applicable standard with respect to the R.C. 2941.25
merger determination. In Ruff, the Ohio Supreme Court stated the following:
Rather than compare the elements of two offenses to determine
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whether they are allied offenses of similar import, the analysis must focus
on the defendant’s conduct to determine whether one or more convictions
may result, because an offense may be committed in a variety of ways and
the offenses committed may have different import. No bright-line rule can
govern every situation.
As a practical matter, when determining whether offenses are allied
offenses of similar import within the meaning of R.C. 2941.25, courts must
ask three questions when the defendant’s conduct supports multiple
offenses: (1) Were the offenses dissimilar in import or significance? (2)
Were they committed separately? and (3) Were they committed with
separate animus or motivation? An affirmative answer to any of the above
will permit separate convictions. The conduct, the animus, and the import
must all be considered.
Id. at ¶ 30-31.
{¶ 73} In State v. Wood, 2d Dist. Montgomery No. 26134, 2016-Ohio-143, we
stated:
[T]he Ohio Supreme Court addressed the allied-offense issue again
in State v. Earley, [145 Ohio St. 3d 281, 2015-Ohio-4615, 49 N.E.3d 266].
There the majority characterized the analysis in its earlier [State v.]
Johnson[, 128 Ohio St. 3d 153, 2010-Ohio-6314, 942 N.E.2d 1061] lead
opinion as “largely obsolete.” Id. at ¶ 11. The Earley court instead
embraced Ruff, which, as noted above, considers a defendant’s conduct,
his animus, and the import or significance of his offenses. Applying Ruff,
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the Earley court concluded that misdemeanor OVI and felony aggravated
vehicular assault “are offenses of dissimilar import and significance that are
to be punished cumulatively.” Earley at ¶ 20. For purposes of our analysis
here, we note that a defendant bears the burden of establishing entitlement
to merger, and we review a trial court’s ruling on the issue de novo. State v.
LeGrant, 2d Dist. Miami No. 2013-CA-44, 2014-Ohio-5803, ¶ 15.
***
We reach the same conclusion under the Ruff standard, which the
Ohio Supreme Court applied in Earley. We see nothing in Ruff that alters
or undermines the foregoing analysis about [the defendant’s] commission
of murder and aggravated robbery involving the same conduct committed
with the same animus. For the reasons set forth above, we conclude that
the two offenses were not committed separately and were not committed
with a separate animus or motivation. These findings remain pertinent
under Ruff, which, as noted above, provides that offenses do not merge if
“(1) the offenses are dissimilar in import or significance—in other words,
each offense caused separate, identifiable harm, (2) the offenses were
committed separately, or (3) the offenses were committed with separate
animus or motivation.” Ruff at ¶ 25 [and] ¶ 30-31.
Wood at ¶ 54, quoting State v. McGail, 2015-Ohio-5384, 55 N.E.3d 513, ¶ 51, ¶ 60 (2d
Dist.).
{¶ 74} An appellate court applies a de novo standard of review in considering a
trial court’s R.C. 2941.25 merger determination. State v. Williams, 134 Ohio St. 3d 482,
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2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28. “The defendant bears the burden of
establishing his entitlement to the protection provided by R.C. 2941.25 against multiple
punishments for a single criminal act.” State v. Washington, 137 Ohio St. 3d 427, 2013-
Ohio-4982, 999 N.E.2d 661, ¶ 18.
{¶ 75} With respect to the offenses of rape and kidnapping, the Ohio Supreme
Court has acknowledged that “implicit within every forcible rape * * * is a kidnapping”
because the victim’s liberty is restrained during the act of forcible rape. State v. Logan,
60 Ohio St. 2d 126, 130, 397 N.E.2d 1345 (1979). In Logan, the court provided the
following guidelines for determining whether kidnapping and another offense are allied
offenses that should merge prior to sentencing, stating:
(a) Where the restraint or movement of the victim is merely incidental
to a separate underlying crime, there exists no separate animus sufficient
to sustain separate convictions; however, where the restraint is prolonged,
the confinement is secretive, or the movement is substantial so as to
demonstrate a significance independent of the other offense, there exists a
separate animus as to each offense sufficient to support separate
convictions;
(b) Where the asportation or restraint of the victim subjects the victim
to a substantial increase in risk of harm separate and apart from that
involved in the underlying crime, there exists a separate animus as to each
offense sufficient to support separate convictions.
Logan at syllabus.
{¶ 76} Applying these guidelines, the Ohio Supreme Court held in Logan that the
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offender’s conduct in forcing the victim into an alley before raping her at knife point was
committed without a separate animus. The court found that the movement was slight,
the detention brief, and the victim was released immediately after the commission of the
underlying crime, compelling the court’s conclusion that the kidnapping was incidental to
the rape. Id. at 135.
{¶ 77} In support of his argument that his convictions for kidnapping and rape were
subject to merger, Stanaford relies heavily on the Ohio Supreme Court’s holding in Logan.
In addition to Logan, Stanaford cites to State v. Miner, 8th Dist. Cuyahoga No. 85746,
2005-Ohio-5445. In Miner, the victim was held against her will in her apartment.
Throughout the course of events, the defendant carried the victim from a bathroom, to a
living room, and then to a bedroom. The Miner court found that the kidnapping/restraint
was incidental to the attempted rape because the victim was never removed from the
apartment and the time she was held was “not prolonged.” Id. at ¶ 17.
{¶ 78} In State v. Portman, 2d Dist. Clark No. 2013-CA-68, 2014-Ohio-4343, we
addressed a case in which the defendant claimed that kidnapping was incidental to the
rapes he committed. In Portman, the defendant led the victim through the store to a
lounge-type area in the basement, which could not be seen from the parking lot and was
more isolated than other parts of the store. Id. at ¶ 42. The defendant put a gun to her
head when she expressed her desire to leave, asking her about the friend waiting in her
car and preventing her from leaving. Id. After the rapes, the defendant again attempted
to prevent her from leaving the basement, through physical restraint and brandishing the
gun. Id. We found that although the additional aspects of time, distance, and danger that
related to the kidnapping in Portman, as separate from the rape, were not as significant
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as those found in some of the other cases we discussed, we specifically noted that the
defendant threatened the victim with a gun and prevented her from leaving, before and
after the rapes occurred. Id. Ultimately, we found that the trial court did not err in failing
to merge the kidnapping count with the rape counts.
{¶ 79} In State v. Bozeman, 2d Dist. Clark No. 2014-CA-38, 2015-Ohio-616, we
found that the kidnapping and subsequent rape of the victim were committed with a
separate animus, and therefore not allied offenses of similar import. Id. at ¶ 18.
Specifically, the victim was kidnapped at gunpoint, robbed, and then transported in her
own stolen vehicle to various locations. Id. The victim was then raped multiple times in
another undisclosed location. Id. After the rapes occurred, the defendant robbed the
victim of her wedding rings and threatened her, again at gunpoint, not to report the
incident to police or he would harm her and her family. Id. Accordingly, we held that due
to the prolonged nature of the detention of the victim prior to the rape, the additional
aspect of travel to several different locations, and the danger related to the actual
kidnapping (i.e. threats made at gunpoint), the offenses were committed with a separate
animus, and the trial court did not err when it failed to merge the kidnapping with the rape.
Id.
{¶ 80} Upon review, we conclude that the facts of the instant case are
distinguishable from the holdings in Logan and Miner. The evidence adduced at trial
established that the kidnapping and subsequent rape of K.C. were committed with a
separate animus, and therefore the offenses were not allied offenses of similar import.
Specifically, Stanaford moved K.C. from the bus stop where she was waiting and took her
to a secluded area on the side of house where they could not be seen from the street.
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Once there, Stanaford held a knife to her throat and threatened to kill her if she tried to
look at him. Because of the use of the knife, the restraint posed a substantial increase
in the risk of harm separate from the rape. See State v. Muldrew, 2d Dist. Montgomery
No. 27901, 2018-Ohio-4883, ¶ 19. Stanaford could have committed the rape and
kidnapping “merely by holding the victim down,” but he chose instead to use the knife. Id.
Furthermore, once the rape had been completed, Stanaford prolonged K.C.’s detention
by pushing her down on the ground and telling her to count to ten. Simply put, Stanaford
intended to restrain K.C. after the rape had occurred in order to facilitate his flight and
avoid being seen by K.C., so she would not be able to identify him later.
{¶ 81} Accordingly, due to the continued nature of the detention of the victim after
to the rape, Stanaford’s act of picking her up and moving her a different and isolated
location, and the danger related to the actual kidnapping (i.e. death threats made at
knifepoint), we find that the offenses were committed with a separate animus, and the
trial court did not err when it failed to merge the kidnapping with the rape.
{¶ 82} Stanaford’s fifth assignment of error is overruled.
{¶ 83} All of Stanaford’s assignments of error having been overruled, the judgment
of the trial court is affirmed.
.............
WELBAUM, P.J. and FROELICH, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Michael P. Allen
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Thomas M. Kollin
Hon. Gerald Parker