State v. Clark ( 2016 )

[Cite as State v. Clark, 2016-Ohio-5493.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 15AP-926
v. : (C.P.C. No. 14CR-3495)
Davonte Clark, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on August 23, 2016
On brief: Ron O'Brien, Prosecuting Attorney, and Laura R.
Swisher, for appellee. Argued: Laura R. Swisher.
On brief: The Law Office of Thomas F. Hayes. LLC and
Thomas F. Hayes, for appellant. Argued: Thomas F. Hayes.
APPEAL from the Franklin County Court of Common Pleas
BRUNNER, J.
{¶ 1} Defendant-appellant, Davonte Clark, appeals a judgment of the Franklin
County Court of Common Pleas sentencing him to serve a total of 35 years following guilty
verdicts in a jury trial on counts of felonious assault, rape, and kidnapping. Because we
find that the evidence with respect to Clark's conviction for rape is insufficient, we sustain
his assignment of error and modify the judgment entry of the trial court to remove the 14
years imposed on the rape convictions (7 years each, leaving a remaining total of 21 years)
and remand for consideration of whether Clark should continue to be required to register
as a sex offender as to his kidnapping convictions absent the rape convictions.1 Because
1 The sentencing entry does not mention sex offender registration. However, the transcript of the
sentencing hearing indicates that Clark was notified at sentencing that he will be subject to sex offender
registration, and he executed a form, filed in the record of the trial court, acknowledging his duty to register.
The trial court judge also signed the form affirming that Clark was advised of the requirement to register.
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No. 15AP-926
Clark's remaining assignments of error also concern his convictions for rape, they are
rendered moot by our disposition of the first assignment of error and are not considered.
I. FACTS AND PROCEDURAL POSTURE
{¶ 2} On July 2, 2014, Clark was indicted (in addition to three other co-
defendants2) for one count of aggravated robbery, six counts of felonious assault, six
counts of rape, and two counts of kidnapping. He pled not guilty on July 7, 2014 and
ultimately exercised his right to a jury trial.
{¶ 3} The State tried Clark and his three co-defendants in a single proceeding that
began on August 3, 2015. At the outset of the trial, the defense stipulated that DNA was
properly collected and firearms found at the scene were operable. In addition, one of the
two alleged victims in the case, B.P., had not responded to the subpoena, and the State,
therefore, sought and received a warrant for his arrest. Following opening statements, the
State began to call witnesses.
{¶ 4} The State first called a Columbus police officer. The officer testified that on
June 25, 2014, at 2:24 a.m., he was dispatched to Mount Carmel West Hospital where he
spoke to a female victim, A.B. He testified that A.B. appeared shaken but the officer
admitted he did not know of what she was afraid. Neither A.B. nor the other alleged
victim, B.P., had (to his knowledge) called the police and A.B. did not name anyone who
might have hurt her.
{¶ 5} The second witness was also a Columbus police officer. He testified that he
picked up A.B. from the hospital for the purpose of identifying a residence on North
Harris Avenue where some events relevant to the case were alleged to have transpired.
The officer testified that the residence in question was 125 North Harris Avenue.
{¶ 6} The State next called a detective from the crime scene search unit of the
Columbus Division of Police. This witness identified photographs taken at 125 North
Harris Avenue as well as items of physical evidence recovered. Among the photographs
were depictions of a broom with a pole-style handle, a broom handle without a broom end
attached, a blue bucket containing a leather belt and a BB gun, a dog cage in a basement, a
2 One of these co-defendants was ultimately not convicted of any offenses, and thus, he is not named.
Discussion in this decision is limited to the three defendants who were convicted of crimes concerning the
incidents in question.
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No. 15AP-926
black and silver handgun, three boxes of ammunition, a number of cell phones, a rifle,
and a rifle clip.
{¶ 7} The State then called A.B. as a witness. A.B. testified that she had been, for
a period of approximately six years, addicted to heroin but, as of the date of her testimony
on August 4, 2015, she had been clean for approximately one year. She explained that she
had been acquainted with one of Clark's co-defendants, Ivan Minor, for around five years,
and that she and her boyfriend, B.P., went weekly to Minor's house on North Harris
Avenue to buy heroin.
{¶ 8} A.B. related that on June 24, 2014, she and B.P. went to the North Harris
Avenue house. A.B.'s testimony varied on the exact sequence of events, whether she and
B.P. had been there earlier in the day, whether B.P. was intending to apply a tattoo at the
residence or trade tattooing equipment for heroin, and whether someone called to her
from within the house or whether someone called to B.P. However, she testified that once
she was inside the house, someone, she was not sure who, displayed a weapon and told
her to go in the kitchen, empty her pockets, and strip. Apparently, heroin had gone
missing and the people in the house on North Harris Avenue thought she and B.P. had
taken it.
{¶ 9} Once she and B.P. had complied in disrobing, someone, she was not sure
who, performed cavity searches on her and B.P. in the kitchen. Some time later, she and
B.P. were taken into the basement of the house where one of Clark's co-defendants and
other unidentified persons also performed anal and vaginal cavity searches on her using
gloves from A.B.'s purse which she had for tattooing purposes. In the basement, a
number of unidentified persons, not believing A.B. and B.P.'s protestations that they had
not stolen heroin, began to beat B.P.
{¶ 10} The beating began with a bottle but they also used a BB gun, a leather strap,
a knife, as well as feet and hands. A.B. was able to identify the BB gun, bucket, and strap
offered into evidence among the State's trial exhibits. Specifically, A.B. testified that some
people (whom she simply referred to as "they") broke the bottle on B.P.'s head, stomped
him with their feet, hit him with their hands, wetted the leather strap and whipped his
back with it, smashed his toes with the butt of the BB gun, and shot him in the bottom and
the genitals with the BB gun. (Tr. Vol. 2 at 128-30.) They also forced B.P. into a dog cage
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No. 15AP-926
and sodomized him anally with a broom handle without a broom attached to it. At times
when B.P. passed out, they dumped cold water on him to revive him for further beatings.
Also, while B.P. was in the cage, they were heating up a knife tip and branding him with it.
In addition, A.B. testified that, someone (she did not know who) kicked her in the head a
couple of times when the beating first started.
{¶ 11} At no time did A.B. identify who did what during the beatings except to say
that Clark and one of his co-defendants, Minor, stomped B.P. and hit him with their
hands. A.B. estimated that she was kept in the basement for at least six hours before she
was allowed to leave. She did not attempt to leave or check if the door was locked.
However, according to her testimony, Clark and his three co-defendants came downstairs
at points to make sure she and B.P. were down there. She also said someone recorded a
video of her, naked on top of B.P.'s cage, urinating on him.
{¶ 12} Toward the end of the night, someone gave A.B. some heroin and B.P. some
meth to help with their pain and withdrawal sickness. Eventually, the captors let A.B. and
B.P. go free reasoning that it had begun to rain outside and any heroin that A.B. and B.P.
might have stolen and stashed outside would be ruined. At least Minor, and maybe other
persons, warned A.B. and B.P. not to call the police. When she retrieved her belongings
and got dressed, A.B. was missing three cell phones and $30. However, neither she nor
B.P. called the police. Instead, they walked to a friend's house who, when it was apparent
that B.P.'s health was poor, took them to Mount Carmel West Hospital.
{¶ 13} A.B. was able to identify all four defendants at trial, including Clark.
However, she admitted on cross-examination that she was in heroin withdrawal during
the ordeal and that heroin has a mind-altering effect that can make things seem real that
are not. She explained that neither Clark nor his co-defendant, Charles Reed, had raped
or assaulted her. She had no memory of speaking to nurses at the hospital or relating that
she had been penetrated.
{¶ 14} The next grouping of witnesses was composed of staff from Mount Carmel
West Hospital; three sexual assault nurses who collected forensic observations and took
photographs of the injuries sustained by A.B. and B.P. and a resident physician who
treated B.P. According to the physician's testimony, B.P. presented with numerous
lacerations, a broken rib, a collapsed left lung, a ruptured spleen rating 4 of 5 on the
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No. 15AP-926
severity scale, a broken toe, a fractured tailbone, a bruised scrotum, and abrasions around
his anus. He was admitted to the intensive care unit and remained there for 5 days. The
forensic nurse manager for Mount Carmel Health System also testified, describing the
photographed injuries to B.P. and authenticating the exhibits showing injuries.
{¶ 15} Another nurse testified that she performed an exam of A.B. and testified to
bruising and other minor injuries to A.B. visible in photographs. This nurse testified that
A.B. told her that fingers had been used to penetrate her vaginal area and "butt." (Tr. Vol.
2 at 458.) The nurses also testified that they swabbed areas where foreign DNA might
have been present based on the history recounted by A.B. and B.P. and preserved the rape
kit for the police.
{¶ 16} The State next called a DNA expert forensic scientist with the Ohio Bureau
of Criminal Investigation. According to the expert, DNA tests were run on the rape kits
collected from A.B. and B.P., as well as numerous articles found at the scene like the
broom handle, BB gun, and pistol. No foreign DNA sufficient for comparison with
conventional DNA testing was found in the rape kits or on any of the articles except the
BB gun. And Minor, Clark, and Reed could be excluded as contributors to the DNA
mixture obtained from the BB gun. The expert testified that Y-STR DNA testing yields a
less exact result. The testing produced two DNA profiles on one end of one broom handle,
a major and a minor profile. The major profile was consistent with B.P. but Minor, Clark,
and Reed were all excluded as contributors to the minor profile.
{¶ 17} Thereafter, a canine handling officer for the Columbus Division of Police
testified that on June 25, 2014, he was called to 125 North Harris Avenue at 6:24 a.m.
with the SWAT team to help effect an arrest because despite the police having announced
their presence, people were not coming out of the house. He testified that after about 15
or 20 minutes, Reed jumped from the second floor window and began limping toward
him and a SWAT officer. Because Reed did not immediately get on the ground when
ordered to do so, the SWAT officer hit him with the barrel of his rifle and they arrested
him. Other than Reed, everyone else who was in the house came out in an orderly and
respectful fashion with their hands raised.
{¶ 18} The final witness called by the State was an expert in cell phone analysis
with the Columbus Division of Police. He testified that a detective assigned to the case
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No. 15AP-926
presented him with an Apple iPhone 4 and asked him to obtain the phone's contents. He
was able to use software to bypass the phone's security code and download the contents.
Both the Apple ID and the Kik3 ID information on the phone were associated with the
name "Charles Reed." (Tr. Vol. 3 at 575-77.) The expert explained that, from his review of
the phone's contents, he was able to determine that on June 24, 2014, at 5:18 p.m., a text
was sent from the iPhone to a recipient named "Destiny" which said, "I am on Harris."
(Tr. Vol. 3 at 578.) Then at 1:05 a.m. on June 25, the iPhone received a message that said,
"[d]id that situation resolve itself at Harris?" (Tr. Vol. 3 at 579.) In addition, the iPhone
contained a video showing A.B. naked in front of a dog cage appearing to urinate on B.P.
The expert explained that while he could not say that this particular phone took the video,
he could discern that the video was taken by the same model of phone running the same
edition of the operating system, that the video was taken on June 24, 2014, at 4:46 p.m.,
and that it was taken at the house on North Harris Avenue.
{¶ 19} Following the last of its witnesses and the admission of exhibits, the trial
court heard motions by the defendants for acquittal under Crim.R. 29. The State
admitted that the evidence was insufficient on three counts of the indictment as to all
defendants and the trial court dismissed those counts.
{¶ 20} After closing arguments, jury instructions, and deliberations, on August 11,
2015, the jury returned verdicts. The jury found Minor, Reed, and Clark each guilty of five
counts of felonious assault and two counts of kidnapping. It also found that Minor and
Clark were each guilty of two counts of rape. It found all four defendants not guilty on all
remaining counts.
{¶ 21} On September 10, 2015, the trial court held a sentencing hearing. The trial
court, after a lengthy explanation of the factors and purposes of sentencing, sentenced
Clark to a total of 35 years in prison. Specifically, the trial court determined that the
felonious assault counts should merge and sentenced Clark to 7 years on the merged
count, 7 years on each of the 2 rape counts, and 7 years on each of the 2 kidnapping
counts, each to be served consecutively to the others.
{¶ 22} Clark now appeals.
3 Kik is a messaging application.
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No. 15AP-926
II. ASSIGNMENTS OF ERROR
{¶ 23} Clark raises four assignments of error for review:
[I.] Mr. Clark's convictions on Counts 8 and 9 (complicity in
two rapes of [A.B.]) are not supported by legally sufficient
evidence and are contrary to the manifest weight of the
evidence.
[II.] The errors in the jury's verdicts on Counts 8 and 9
violated Mr. Clark's constitutional guarantee of due process
and protection against double jeopardy.
[III.] The trial court failed to merge Mr. Clark's convictions on
Counts 8 and 9 pursuant to R.C. 2941.25.
[IV.] Mr. Clark was deprived of effective assistance of counsel
by the failure to advocate for merger of Counts 8 and 9.
III. DISCUSSION
A. First Assignment of Error—Whether the Rape Convictions were
Sufficiently Supported by the Evidence and Whether they were
Contrary to the Manifest Weight of the Evidence
{¶ 24} In his first assignment of error, Clark alleges that his convictions were not
supported by sufficient evidence and that they were against the manifest weight of the
evidence. The Supreme Court of Ohio has "carefully distinguished the terms 'sufficiency'
and 'weight' * * *, declaring that 'manifest weight' and 'legal sufficiency' are 'both
quantitatively and qualitatively different.' " Eastley v. Volkman, 132 Ohio St. 3d 328,
2012-Ohio-2179, ¶ 10, quoting State v. Thompkins, 78 Ohio St. 3d 380 (1997), paragraph
two of the syllabus.
{¶ 25} Sufficiency is:
"[A] term of art meaning that legal standard which is applied
to determine whether the case may go to the jury or whether
the evidence is legally sufficient to support the jury verdict as
a matter of law." * * * In essence, sufficiency is a test of
adequacy. Whether the evidence is legally sufficient to sustain
a verdict is a question of law.
Eastley at ¶ 11, quoting Thompkins at 386; Black's Law Dictionary 1433 (6th Ed.1990).
"In reviewing a record for sufficiency, '[t]he relevant inquiry is whether, after viewing the
evidence in a light most favorable to the prosecution, any rational trier of fact could have
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No. 15AP-926
found the essential elements of the crime proven beyond a reasonable doubt.' " State v.
Monroe, 105 Ohio St. 3d 384, 2005-Ohio-2282, ¶ 47, quoting State v. Jenks, 61 Ohio St. 3d
259 (1991), paragraph two of the syllabus.
{¶ 26} By contrast:
Weight of the evidence concerns "the inclination of the
greater amount of credible evidence, offered in a trial, to
support one side of the issue rather than the other. It indicates
clearly to the jury that the party having the burden of proof
will be entitled to their verdict * * *. Weight is not a question
of mathematics, but depends on its effect in inducing belief."
(Emphasis sic.) Eastley at ¶ 12, quoting Thompkins at 387; Black's at 1594. For a
manifest weight analysis "the appellate court sits as a 'thirteenth juror' and disagrees with
the jury's resolution of the conflicting testimony." Thompkins at 388, quoting Tibbs v.
Fla., 457 U.S. 31, 42 (1982). " '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.' " Id. at 387, quoting State v. Martin, 20 Ohio App. 3d 172, 175 (1st Dist.1983).
{¶ 27} There are also noteworthy differences in how the two concepts are treated
procedurally. While a majority of a reviewing court may find that evidence was
insufficient, "[n]o judgment resulting from a trial by jury shall be reversed on the weight
of the evidence except by the concurrence of all three judges hearing the cause." Ohio
Constitution, Article IV, Section 3(B)(3); Thompkins at 380, paragraphs three and four of
the syllabus. In addition, the consequences of appellate findings on manifest weight as
opposed to sufficiency are different. "[T]he Double Jeopardy Clause does not preclude
retrial of a defendant if the reversal was grounded upon a finding that the conviction was
against the weight of the evidence. However, retrial is barred if the reversal was based
upon a finding that the evidence was legally insufficient to support the conviction." Id, at
387, citing Tibbs at 47.
{¶ 28} In Ohio, the offense of rape is defined by statute in relevant part as follows:
No person shall engage in sexual conduct with another when
the offender purposely compels the other person to submit by
force or threat of force.
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No. 15AP-926
R.C. 2907.02(A)(2). "Sexual conduct" is defined to include "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" when accomplished "without privilege to do so." R.C.
2907.01(A). In addition, a person is complicit in the sense potentially relevant here when,
"acting with the kind of culpability required for the commission of an offense" the person
"[a]id[s] or abet[s] another in committing the offense." R.C. 2923.03(A)(2). A person who
is complicit in an offense "shall be prosecuted and punished as if he were a principal
offender." R.C. 2923.03(F).
{¶ 29} A.B. testified that someone in the house (she was not sure who) held a gun
on her and B.P. Someone (it is not clear from her testimony if it was the same unknown
person or a different unknown person) told her to strip. A.B. testified that someone, she
was not sure who, administered a vaginal cavity search in the kitchen and that Minor
performed anal and vaginal cavity searches on her once she had stripped and gone into
the basement of 125 North Harris Avenue.4 A.B. identified Clark as one of the people
being on the premises on North Harris Avenue with Minor both by line-up and at trial.
{¶ 30} A.B. testified that in the period in which she was detained in the basement
of 125 North Harris Avenue, Clark was one of the people who came to check and make
sure she was still there; however, A.B. did not claim that Clark was present at the scene
(or even in the house) during the cavity searches she experienced.5 Indeed her first
mention of Clark was in connection with the beating of B.P. which occurred after all of the
cavity searches. Moreover, she agreed that Clark was not an assailant as to her and, in
fact, never touched her at all. She also stated, that the gun had been put away and was not
out at the point when the cavity searches in the basement occurred.
{¶ 31} "Body cavity search" is defined in two places in the Ohio Revised Code. In
both instances it is defined as "an inspection of the anal or vaginal cavity of a person that
is conducted visually, manually, by means of any instrument, apparatus, or object, or in
any other manner." R.C. 2933.32(A)(1); R.C. 5120.421(A)(1). Black's Law Dictionary
4 She also testified that some unknown persons performed cavity searches on B.P. as well. However, Clark
was convicted only of rape counts associated with the penetration of A.B.'s anal and vaginal cavities; thus,
we address that issue no further here.
5 While A.B. also maintained that B.P. was sodomized with a broom handle, Clark was convicted only of rape
counts associated with the penetration of A.B.'s anus and vagina.
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No. 15AP-926
defines two types of body cavity searches. A "manual body-cavity search" is "[a] strip
search in which the police engage in some touching or probing of a person's orifices. –
Also termed digital body-cavity search." (Emphasis sic.) Black's Law Dictionary 1552
(10th Ed.2014). A "visual body-cavity search" is "[a] strip search in which, without
touching, a law-enforcement officer closely inspects a person's orifices. – Also termed
visual body-cavity inspection." (Emphasis sic.) Black's at 1553. In other words, although
a body cavity search clearly can involve penetration, it does not, by definition, require or
necessitate penetration or insertion.
{¶ 32} A.B.'s testimony at least suggested that penetration occurred because she
referred to being cavity searched with a gloved hand. Taken in combination with the fact
that the hospital records introduced in the case show representations that vaginal and
"butt" penetration occurred, we find the evidence before the jury sufficient, when taking
the view most favorable to the prosecution, for a jury to find there was evidence that some
penetration occurred. The force element is satisfied by evidence that A.B. was compelled
at gunpoint to strip in preparation for the search. Although the gun was later put away,
taking the view of the facts most favorable to the prosecution, Minor took advantage of
the continuing implied threat of violence when he required A.B. to submit to cavity
searches in the basement, shortly after she was forced at gunpoint to strip. Thus, taking
the view of the evidence most favorable to the prosecution, the evidence was sufficient to
find Minor guilty of the rapes. However, utterly lacking in the presentation at trial was
any evidence that Clark was involved in the cavity searches or even present at 125 North
Harris Avenue when the cavity searches were conducted.
{¶ 33} The testimony at trial regarding Clark's participation in the rapes is as
follows:
Q. What was [Clark's] involvement that night?
A. He was involved in beating [B.P.]
Q. Did he have any involvement with any of the cavity
searches?
A. I believe so. But I am not sure because I was searched from
behind, so I don't know.
***
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No. 15AP-926
Q. [Clark]. What was his involvement?
A. Beating [B.P.]
***
Q. Ms. [A.B.], Mr. Clark, again, to reiterate, never sexually
assaulted you, correct?
A. Correct.
Q. To your knowledge, you never recall him doing anything
physical to you, correct?
A. Correct.
***
Q. [Clark], he is not an assailant either, is that correct? Your
testimony is he never touched you, correct?
A. Yes.
***
Q. I think one of the points was clarified, but when you were
asked the question about [Clark] wasn't an assailant to
you. Was he an assailant to [B.P.]?
A. Yes.
(Tr. Vol. 2 at 153, 155, 220, 255, 259-60.) The first mention of Clark by A.B. appears on
page 128 of the trial transcript at which point she stated that Minor and Clark were
beating B.P. When defense counsel suggested that A.B. might have told the police that
Clark was present at the house at the time when she arrived (and thus might have been
there for the cavity searches which preceded the beating of B.P.) she claimed she did not
remember.
{¶ 34} The State argues that Clark was complicitous to the rape perpetrated by
Minor. While " 'participation in criminal intent may be inferred from presence,
companionship and conduct before and after the offense is committed.' " State v.
Johnson, 93 Ohio St. 3d 240, 245 (2001), quoting State v. Pruett, 28 Ohio App. 2d 29, 34
(4th Dist.1971). Black's Law Dictionary defines "inference" as, "[a] conclusion reached by
considering other facts and deducing a logical consequence from them." Black's at 897. It
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No. 15AP-926
also defines "inferential fact" as, "[a] fact established by conclusions drawn from other
evidence rather than from direct testimony or evidence; a fact derived logically from other
facts." Black's at 710. Notably missing from these definitions is any suggestion that the
concept of an "inference" can be expanded to include assumptions of fact where there is
no evidence for the fact assumed.
{¶ 35} Here, Clark's presence and participation in the beating of B.P. and
continued presence in the basement show quite clearly that he had the requisite criminal
intent for hurting B.P. and holding B.P. and A.B. upon the suspicion that they had stolen
heroin. But there is simply no evidence offered that would tend to show that Clark was
present for or even knew of a plan to cavity search A.B. and B.P. or even the fact that they
had been cavity searched, however the act of rape may be defined. Even if Clark was
present during the cavity searches and fully concurred in the criminal intent behind them,
without some evidence to support an inference tending toward his complicity, the
evidence before the jury was insufficient to convict him. See Johnson at 243, quoting State
v. Widner, 69 Ohio St. 2d 267, 269 (1982) (" '[T]he mere presence of an accused at the
scene of a crime is not sufficient to prove, in and of itself, that the accused was an aider
and abettor.' ").
{¶ 36} Clark's first assignment of error is sustained.
B. Second, Third, and Fourth Assignments of Error—Moot
{¶ 37} Having determined to vacate Clark's convictions for rape because the
evidence introduced at trial was insufficient on those counts, Clark's remaining
assignments of error which also bear on the rape counts are moot and shall not be
considered further.
IV. CONCLUSION
{¶ 38} We sustain Clark's first assignment of error because we find that the
evidence introduced at trial was insufficient to support Clark's conviction for rape; thus
the two convictions for rape are vacated. Pursuant to App.R. 12(A)(1)(a), we modify the
judgment entry of the trial court to remove the convictions and sentences for rape (7 years
each) leaving a total remaining sentence of 21 years. We remand for consideration of
whether Clark should be considered to have been convicted of a "sexually oriented
offense" under R.C. 2950.01(A)(7) as to his kidnapping convictions for the purposes of
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No. 15AP-926
sexual offender registration. Clark's remaining three assignments of error are moot and
not considered further.
Judgment reversed in part
and remanded with instructions.
DORRIAN, P.J., and SADLER, J., concur.