State v. Sharp , 2014 Ohio 4140 ( 2014 )

[Cite as State v. Sharp, 2014-Ohio-4140.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
PUTNAM COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 12-13-01
v.
KYLE SHARP, OPINION
DEFENDANT-APPELLANT.
Appeal from Putnam County Common Pleas Court
Trial Court No. 2012 CR 51
Judgment Affirmed in Part, Reversed in Part and Cause Remanded
Date of Decision: September 22, 2014
APPEARANCES:
Stephen A. Goldmeier for Appellant
Todd C. Schroeder for Appellee
Case No. 12-13-01
ROGERS, J.
{¶1} Defendant-Appellant, Kyle Sharp, appeals the judgment of the Court
of Common Pleas of Putnam County convicting him on two counts of unlawful
sexual conduct with a minor and one count of tampering with evidence and
sentencing him to a prison term of three years. On appeal, Sharp argues that the
trial court committed the following errors: (1) entering verdicts that were not
supported by sufficient evidence; (2) entering verdicts that were against the
manifest weight of the evidence; and (3) imposing consecutive sentences. For the
reasons that follow, we affirm in part and reverse in part the trial court’s judgment.
{¶2} On June 11, 2012, the Putnam County Grand Jury indicted Sharp on
two counts of unlawful sexual conduct with a minor in violation of R.C.
2907.04(A) and (B)(1), felonies of the fourth degree; and one count of tampering
with evidence in violation of R.C. 2921.12(A)(1), a felony of the third degree.
{¶3} The trial of this matter commenced on December 17, 2012, and ended
on December 18, 2012. At the trial, evidence was presented that on September
29, 2009, Sharp and C.S., who was at the time 15-years-old, met at the annual
Continental Fall Festival. Sharp and C.S. met in a parking lot and eventually
entered Sharp’s truck where they talked and then had sexual intercourse.
{¶4} G.R. testified that she met Sharp through her older brother, Aaron
Sherry, and that Aaron and Sharp were best friends. After going to a movie with
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Aaron and Sharp, G.R. asked her brother for Sharp’s phone number. G.R. testified
that sometimes she and Sharp would send text messages to each other about
“normal things” but other times they would text about “sexual things.” Trial Tr.,
Volume I, p. 63. On March 11, 2012, G.R. went over to Aaron’s apartment in
Continental. She knew that Sharp would be there and that her brother and Sharp
were going to go out drinking that night. After Sharp and Aaron came home that
night, Aaron went straight to his room and fell asleep. There were inconsistent
statements as to when Sharp and Aaron came home that morning. G.R. and Aaron
testified that it was around 5:00 a.m., whereas Sharp testified that he did not go
back to Aaron’s apartment until 7:00 or 7:15 a.m. Sharp and G.R. went to the
spare bedroom and G.R. testified that Sharp digitally penetrated and then had
sexual intercourse with her. G.R. also stated that Sharp used a condom.
{¶5} After Sharp and G.R. had sexual intercourse, G.R. testified that Sharp
told her not to tell anyone what had happened because he could not handle jail.
G.R. testified that the last text message she received from Sharp was on March 12,
2012. Shortly after this occurred, G.R.’s mother found out about her daughter’s
sexual relationship with Sharp and reported it to the police.
{¶6} After Aaron found out about G.R.’s allegations he confronted Sharp in
mid-April. Aaron testified:
I went to the bar right after work that Thursday night, and he was
there and everything. I couldn’t hold it back or anything because he
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was my best friend. So I wanted to know straight from him one on
one. So we went back into the empty kitchen, and we had a
conversation, and I let him know, you know, cops are coming, mom
went crazy and that. From brother to brother to best friend to best
friend, did anything happen. * * * And he told me no, didn’t
happen.
***
Text -- I asked if there was [sic] text messages going back and forth.
He told me if they go by those, he would be in trouble since he
already knew from a prior thing that that’s how they got -- they got
another person.
Trial Tr., Volume II, p. 47.
{¶7} Aaron also had the following relevant exchange:
Q: And from time to time, would you and the Defendant and your
circle of friends hang out?
A: Yes.
Q: And sometimes, would that involve consuming alcohol?
A: Yes.
Q: And from time to time, would it be brought up that the
Defendant had sex with [C.S.]?
A: Once or twice.
Q: And you were present for that?
A: Yes.
Q: And would the Defendant respond to that?
A: No.
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Q: Would he have any sort of reaction?
A: No. Never, I guess no, nothing like that. Never came out of his
mouth.
Q: Would he smile or smirk?
A: Yes.
Q: On all those occasion in which it was brought up of the
Defendant having sex with [C.S.], did he ever deny it?
A: No.
Id. at p. 39.
{¶8} Dr. Randall Schilveret, director of the child abuse program for Mercy
Healthy Partners in Toledo, Ohio also testified for the State. Dr. Schilveret
testified that G.R. came to his office on April 2, 2012. He learned that G.R. had
sexual intercourse with Sharp and asked her if he could perform a physical exam
on G.R. At that time, G.R. refused a physical exam. However, G.R. later returned
to Dr. Schilveret’s office and consented to a physical exam. Dr. Schilveret
testified that G.R.’s exam came back normal. He explained that
[a] normal exam just means -- when I say that, that looking at the
patient, the tissues look entirely normal. There’s no sign of disease.
There’s no sign of scar or abnormality. And then it’s important that
I always relay to the patient or parents why that’s very common in
cases of sexual assault and that it’s not an issue that is uncommon in
my practice or in the literature for that exam to be normal even when
there’s been penetration or sexual assault.
***
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But it’s well documented in my experience as well just the medical
literature that most of the kids you see, unless it just happened within
the last few hours, maybe a week, are going to be a completely
normal exam.
And there’s [sic] a couple of reasons for that. One of those
reasons is that if the child is older, pubertal, meaning they’re having
their periods and fully developed, those tissues stretch much more
easily than if they were five or six years old.
Trial Tr., Volume I, p. 123-124.
{¶9} On May 7, 2012, the police executed a search warrant for Sharp’s
phone. On May 25, 2012, police officers executed a second search warrant for a
micro SD card for Sharp’s phone. However, police officers were not able to
recover the SD card. Deputy Steven Mueller of the Defiance County Sheriff’s
Office1 testified that he was asked to provide an analysis of Sharp’s cell phone and
G.R.’s cell phone. He testified that Sharp’s phone has a setting that will only
retain 200 texts in a conversation. Thus, older text messages might be
automatically deleted in a conversation. When performing an analysis of Sharp’s
phone, Deputy Mueller could not find any data on the phone. Deputy Mueller
stated that this was unusual and is most likely attributable to human intervention.
{¶10} Ethan Bollenbacher, a custodian of records for Verizon Wireless,
also testified for the State. Bollenbacher explained that he confirms call records
on behalf of Verizon Wireless and generated a “call detail record” of Sharp’s
phone. The call detail record includes all incoming and outgoing phone calls
1
Deputy Mueller was qualified as an expert witness in digital evidence collection.
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made from Sharp’s phone. The record shows the date and time stamp of each
phone call. Bollenbacher also produced a “message detail log” which shows all of
the incoming and outgoing text messages associated with Sharp’s phone number.
The message detail log also contains the date and time stamp associated with each
text message, but does not include the content of the text message. Bollenbacher
explained that Verizon Wireless only keeps the content of a text message for three
to five days before they are purged. These records were offered and then later
admitted into evidence.
{¶11} After the State rested, Sharp moved for acquittal under Crim.R. 29,
but the trial court denied the motion.
{¶12} Sharp called Alex Thiel and Hallie Garofalo, who both worked at the
Bureau of Criminal Investigation. Both witnesses testified that they analyzed
evidence submitted to them by the Continental Police Department; specifically,
bed sheets and pillow cases. Both witnesses testified that neither Sharp’s nor
G.R.’s DNA was found on the sheets. However, both witnesses admitted that if an
individual wore a condom, they would not expect to find semen on the bed sheets.
{¶13} John Sharp then testified. John testified that Sharp is his cousin and
that he was with Aaron and Sharp the night of March 10th and 11th. John stated
that after going to a local bar, he, Sharp, and Aaron went to a friend’s garage to
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continue drinking. They left their friend’s house as the sun was rising, around
6:30 or 7:00 a.m.
{¶14} Sharp testified on his own behalf. He denied C.S.’s and G.R.’s
allegations. Sharp corroborated John’s testimony, testifying that on the night of
March 10th and 11th he went out drinking with Aaron and John, first at a bar and
then at a friend’s house. Sharp also testified that they left the friend’s house
around 6:30 or 7:00 a.m. Sharp dropped John off at his car, and then followed
John to make sure he got home and did not get back to Aaron’s apartment until
7:15 or 7:30 a.m.
{¶15} Sharp claimed that G.R. would flirt with him but he never thought
anything of it. He stated that G.R. was the one who initiated the text messages.
At first, the messaging was just “normal chitchat,” id. at p. 111, but then G.R.
began to talk “about her virginity and just the things that she said that she wanted
to do,” id. at p.117. Sharp stated he was not made aware of the allegations against
him until Aaron pulled him aside about a month after the alleged incident. Sharp
denied the allegations to Aaron. Sharp told Aaron that his sister had “massive
interest” in him, which is why Sharp stopped talking to G.R. Id.
{¶16} Sharp was arrested on May 4, 2012, but was released on May 7,
2012. Sharp testified that he got picked up from jail by his mother, who
immediately informed him that “the cops were going [to] stop at the house to take
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[his] cell phone.” Id. at p. 113. Once he got home, Sharp realized his cell phone
was dead, so he charged his phone and “grabbed the SD off my computer stand,
[and] put it in my phone.” Id. “No later than ten minutes later, the cop was there
to take my phone.” Id. According to Sharp he gave the police officers everything
he had regarding his phone. However, police officers came back to his house and
alleged that the SD card he supplied them was not the right one for his phone.
Sharp allowed police officers to look in his house for the correct SD card, but
officers could not locate a second SD card.
{¶17} Sharp also denied the allegations against him concerning C.S. Sharp
testified that he did meet up with C.S. at the 2009 Continental Fall Festival. Sharp
stated that at the festival, C.S. was on crutches and she asked him for a ride to a
friend’s house. Feeling bad for C.S., Sharp obliged and drove her down the street.
Sharp was unaware of any motive C.S. would have to lie to police officers about
the accusations.
{¶18} On cross-examination, Sharp had the following relevant exchange:
Q: Your phone log record reveals that on March 30th, 2012, the
Continental police made contact to your phone to attempt to speak to
you about this incident. Do you recall receiving a message?
A: Yes.
Q: And so if you received that message on March 30th, 2012 and
spoke to Aaron the first week in April, when you spoke to him, you
already had a heads up about what was coming?
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A: No. I didn’t know why the cops was [sic] calling me.
***
Q: And you received that message from the Continental Police
Department, correct?
A: Yes.
Q: And in fact, you were aware that the Continental Police
Department continued to make multiple attempts to contact you.
Isn’t that correct?
A: Yes.
Q: And in fact, you would agree that attempts were made to
contact you via your cell phone by calling and leaving voicemail
messages not just on March 3[0th] but also on April 2nd, April 9th,
April 13th, April 17th, April 18th, and April 20th. Would that be
correct?
A: Yes.
Q: And if your phone log record reflected that, would you agree
that that’s accurate?
A: Yes.
Id. at 141-143. Police officers also went to Sharp’s home, but Sharp claimed that
he was not at home the multiple times officers went there to question him.
{¶19} Sharp then testified:
Q: The jail records reflect you were released May 7th, 2012 at
3:45 p.m.
A: That’s correct.
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Q: How long does it take to drive from Putnam County jail to your
home?
A: Depends on traffic lights, but roughly half hour.
Q: Thirty minutes?
A: Yeah.
Q: And it was during that drive that you were told police were
coming for the cell phone?
A: Yes.
Q: And so you would have returned home, if it took 30 minutes,
about 4:15?
A: If we didn’t stop anywhere to eat or anything.
Q: Well, let’s say you did. You would have returned home at
4:30?
A: Yes.
Q: And then law enforcement arrived at 5:40, correct?
A: Is that what the paper says?
Q: Yes.
A: Then yes.
Id. at p. 146-147.
{¶20} After Sharp’s testimony, the defense rested. Sharp renewed his
Crim.R. 29 motion for acquittal, which the trial court again denied. Both the State
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and Sharp offered their closing statements and the trial court charged the jury
before deliberations.
{¶21} On December 18, 2012, the jury returned guilty verdicts on all three
counts alleged in the indictment. This matter then proceeded to sentencing on
January 14, 2013. After hearing evidence and argument relating to the issue of
punishment, the trial court imposed the following sentence: 18 months in prison
for each of the two counts of unlawful sexual conduct with a minor and a 36-
month prison sentence for the one count of tampering with evidence. The trial
court further ordered that the two counts of unlawful sexual conduct with a minor
run consecutively, while the tampering with evidence count run concurrently. As
such, the trial court imposed a total prison term of three years. On January 18,
2013, the trial court issued a judgment entry journalizing Sharp’s conviction and
sentence.
{¶22} Sharp timely appealed this judgment, presenting the following
assignments of error for our review.
Assignment of Error No. I
MR. SHARP’S CONVICTIONS ARE NOT SUPPORTED BY
SUFFICIENT EVIDENCE, IN VIOLATION OF HIS RIGHT
TO DUE PROCESS.
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Assignment of Error No. II
MR. SHARP’S CONVICTIONS ARE AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE, IN VIOLATION
OF HIS RIGHT TO DUE PROCESS.
Assignment of Error No. III
THE TRIAL COURT ERRED WHEN IT SENTENCED MR.
SHARP TO CONSECUTIVE SENTENCES WITHOUT
COMPLYING WITH R.C. 2929.14, IN VIOLATION OF HIS
RIGHT TO DUE PROCESS AS GUARANTEED BY THE
FOURTEENTH AMENDMENT TO THE UNITED STATES
CONSTITUTION AND ARTICLE I, SECTION 16 OF THE
OHIO CONSTITUTION.
Assignment of Error No. I
{¶23} In his first assignment of error, Sharp argues that the State failed to
present sufficient evidence to support his convictions. We disagree.
Sufficiency Standard
{¶24} When an appellate court reviews the record for sufficiency, the
relevant inquiry is whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found that the essential
elements of the crime were proven beyond a reasonable doubt. State v. Monroe,
105 Ohio St. 3d 384, 2005-Ohio-2282, ¶ 47. Sufficiency is a test of adequacy.
State v. Thompkins, 78 Ohio St. 3d 380, 386 (1997), superseded by constitutional
amendment on other grounds as stated in State v. Smith, 80 Ohio St. 3d 89 (1997).
Accordingly, the question of whether the offered evidence is sufficient to sustain a
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verdict is a question of law. State v. Wingate, 9th Dist. Summit No. 26433, 2013-
Ohio-2079, ¶ 4.
Sharp’s Unlawful Sexual Conduct Convictions
{¶25} R.C. 2907.04(A) sets forth the offense of unlawful sexual conduct
and states “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.”
{¶26} As set forth under the statute, the State must prove that (1) the
offender is over the age of eighteen years; (2) the victim was between the ages of
thirteen and sixteen at the time of the sexual conduct, and (3) the victim was not
the offender’s wife. On appeal, Sharp does not challenge that he was eighteen
years old and that both C.S. and G.R. were between the ages of thirteen and
sixteen when the alleged sexual conduct occurred. He only argues that the State
failed to present any evidence that either C.S. or G.R. was not his wife.
{¶27} Although the State failed to affirmatively ask C.S. or G.R. whether
they were the spouse of Sharp, there was sufficient circumstantial evidence
presented to allow the jury to determine that Sharp and his victims were not
married. See State v. Smith, 12th Dist. Warren Nos. CA2012-02-017, CA2012-02-
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018, 2012-Ohio-4644, ¶ 39 (finding that circumstantial evidence can be used to
establish the victim was not the spouse of the offender).
{¶28} C.S. testified that she was not supposed to tell anyone about her
relations with Sharp. C.S. acknowledged that what transpired between her and
Sharp was wrong, but she was scared to go to the police. Further, G.R. did not
characterize Sharp as her husband, but instead, as her older brother’s best friend.
Aaron’s testimony substantiated this as he described Sharp as his best friend, not
his little sister’s husband. While G.R. knew that Sharp was older than her, she did
not know his exact age. G.R. testified that after Sharp took her virginity, Sharp
stopped texting her altogether. Moreover, when Sharp took the stand, he denied
having any sexual relations with C.S. or G.R., which further supports the fact that
he was not their husband. From such testimony, there was sufficient
circumstantial evidence for the jury to determine that neither C.S. nor G.R. was
Sharp’s spouse.
Sharp’s Tampering with Evidence Conviction
{¶29} R.C. 2921.12(A)(1) states that “[n]o person, knowing that an official
proceeding or investigation is in progress, or is about to be or likely to be
instituted, shall * * * [a]lter, destroy, conceal, or remove any record, document or
thing, with purpose to impair its value or availability as evidence in such
proceeding or investigation * * *.” Thus, there are three elements of this offense:
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“(1) the knowledge of an official proceeding or investigation in progress or likely
to be instituted, (2) the alteration, destruction, concealment, or removal of the
potential evidence, [and] (3) the purpose of impairing the potential evidence’s
availability or value in such proceeding or investigation.” State v. Straley, 139
Ohio St. 3d 339, 2014-Ohio-2139, ¶ 11.
{¶30} Sharp argues that there is no evidence that he was the person who
actually deleted the text messages to G.R. from his phone. Instead, Sharp
contends that his phone will automatically delete older text messages, which
explains why the police could not find any text messages between G.R. and Sharp
on his phone. We find this argument unconvincing. There were no messages on
the phone at all between Sharp and G.R. Whether the program erased older
messages in a conversation does not explain how the most recent were deleted.
Further, Sharp admitted to Aaron that if anybody saw the text messages he “would
be in trouble * * *.” Trial Tr., Volume II, p. 47. When asked if Aaron could see
the text messages, Sharp admitted they were already deleted. Id. at p. 48. Thus,
Sharp’s admission is sufficient evidence that he deleted the text messages on his
phone.
{¶31} Sharp argues that even if he did delete the text messages, the State
failed to prove that he did it with the purpose to interfere with the ongoing
investigation. Specifically, Sharp argues that there was no evidence that he knew
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an investigation was ongoing or likely to occur. Sharp contends that he did not
know an investigation was ongoing until Aaron confronted Sharp in mid-April.
Sharp claims at this point, he had already deleted all the text messages on his
phone. However, Sharp ignores the evidence presented that showed he received
multiple phones calls from the Continental Police Department on March 30, April
2, April 9, April 13, April 17, April 18, and April 20. After every attempt to
contact Sharp, police officers left voicemails on Sharp’s phone. Sharp also
acknowledged that the police officers stopped by his residence on March 27,
March 28, March 29, March 30, April 2, April 5, and April 9; however, he
conveniently was never home during any of the visits.
{¶32} Moreover, Sharp realized that his communications with G.R. were
inappropriate and confided in Aaron that if police officers saw the text messages,
he would be in trouble. He told G.R. not to tell police officers about their
relationship, and also told her that he would not be able to handle jail if he were
caught. Thus, when viewed in a light most favorable to the State, there is
sufficient evidence in the record to demonstrate that Sharp was aware that a
criminal investigation was likely to occur, if not already in progress.
{¶33} Based on the foregoing evidence, we find that there was sufficient
evidence in the record to support Sharp’s two convictions for unlawful sexual
conduct and his conviction for tampering with evidence.
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{¶34} Accordingly, we overrule Sharp’s first assignment of error.
Assignment of Error No. II
{¶35} In his second assignment of error, Sharp argues that his convictions
were against the manifest weight of the evidence. We disagree.
Standard of Review
{¶36} Although we have concluded that there was sufficient evidence to
support Sharp’s convictions, our finding in that regard does not foreclose the
possibility that the convictions were against the manifest weight of the evidence.
See Thompkins, 78 Ohio St. 3d at 387 (“Although a court of appeals may determine
that a judgment of a trial court is sustained by sufficient evidence, that court may
nevertheless conclude that the judgment is against the manifest weight of the
evidence.”). When an appellate court analyzes a conviction under the manifest
weight standard, it “sits as the thirteenth juror.” Id. Accordingly, it must review
the entire record, weigh all of the evidence and its reasonable inferences, consider
the credibility of the witnesses, and determine whether the fact finder “clearly lost
its way” in resolving evidentiary conflicts and “created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial
ordered.” State v. Martin, 20 Ohio App. 3d 172, 175 (1st Dist.1983). When
applying the manifest weight standard, a reviewing court should only reverse a
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trial court’s judgment “in exceptional case[s]” when the evidence “weighs heavily
against the conviction.” Id. at paragraph three of the syllabus.
{¶37} Moreover, “A conviction is not against the manifest weight of the
evidence simply because the jury chose to believe the prosecution testimony.”
State v. McMullen, 12th Dist. Butler Nos. CA2005-09-414, CA2005-10-427,
CA2005-10-429, 2006-Ohio-4557, ¶ 29. Instead, this court may only overturn a
jury’s decision of the State’s witnesses were “completely lacking in credibility * *
*.” Id.; see also State v. Bates, 11th Dist. Portage No. 99-P-0100, 2001 WL
314855, *9 (Mar. 30, 2001).
Recapitulation of Evidence
{¶38} C.S. testified that in September of 2009, she and Sharp were together
at the Continental Fall Festival. C.S. stated that Sharp knew how old she was
because she told him that she was 15-years-old. In an attempt to get alcohol, C.S.
texted Sharp and they met up in a parking lot. After Sharp gave her alcohol, the
two went into his truck. C.S. testified at first they talked, but eventually it “led to
more” and they had sexual intercourse inside of Sharp’s truck. Trial Tr., Volume
I, p. 35. Aaron also testified that he was with Sharp when friends would bring up
the fact that Sharp had sex with C.S. Aaron testified that Sharp never denied the
allegations and instead, Sharp would smile or smirk. Trial Tr., Volume II, p. 39.
Moreover, Sharp’s own testimony corroborated C.S.’s testimony. Sharp admitted
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that he met C.S. at the Continental Fall Festival in September of 2009, and that she
was in his truck. However, Sharp denied that they had sexual intercourse and
insisted he only gave C.S. a ride to her friend’s house. Id. at p. 118.
{¶39} As to G.R., she testified that on March 12, 2012, Sharp digitally
penetrated and then had sexual intercourse with her. After having sexual
intercourse with G.R., Sharp told her that she could not tell anyone about what had
happened because he would not be able to handle going to jail. G.R. also testified
that she and Sharp had been texting for a month prior to the incident and that some
of their conversations were sexual in nature. Sharp admitted to texting G.R., and
told Aaron that if the police found out about the text messages he would be in
trouble. Sharp’s testimony also corroborated G.R.’s version of events. He
confirmed that he spent the night at Aaron’s place and that G.R. was up when he
returned with Aaron in the early morning hours. While Sharp does not deny
texting G.R., he did deny that any of the text messages were inappropriate on his
end. Instead, he testified that G.R. was the one who was inappropriate and he was
uncomfortable with the conversation.
Sharp’s Arguments
{¶40} On appeal, Sharp contends that his convictions should be overturned
because there were inconsistencies in the testimony of the State’s witnesses, and
as a result, no reasonable juror could have found them credible. Specifically,
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Sharp argues that G.R.’s testimony was incredible because she testified that Sharp
returned to Aaron’s apartment around 5:00 a.m., even though cell phone records
show that they were exchanging text messages until 5:45 a.m. Further, Sharp
points out that G.R. testified that the sun had not yet risen when Aaron and Sharp
returned home, even though Sharp and his cousin testified that it was 6:30 a.m.
when they returned to Aaron’s and it was light outside.
{¶41} We do not find that G.R.’s testimony was incredible because she
confused the time that she and Sharp had sexual intercourse. G.R. testified that it
happened “About 5 o’clock in the morning.” (Emphasis added.) Trial Tr.,
Volume I, p. 65. She then later stated that she and Sharp had sexual intercourse
after Sharp had sent her a text message at 5:45 a.m. On cross-examination, G.R.
stated:
Q: And then what time do you recall [Sharp and Aaron] coming
back home?
A: About 5 o’clock or so.
Q: In the morning?
A: Yeah.
Q: Are you sure it was 5 o’clock in the morning?
A: I’m not sure it was 5 o’clock, but it was in the morning.
Q: And was the sun up?
A: No.
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Id. at p. 96-97. G.R.’s testimony was supported by Aaron who similarly testified
that he returned home with Sharp around 5:00 a.m. G.R. also told police officers
that the sexual intercourse happened around 6:00 a.m.
{¶42} Further, we find more inconsistences with Sharp’s testimony than
with G.R.’s. First, Sharp testified that only 10 minutes had passed from the time
he got home from jail to when police officers came to his house to confiscate his
phone. However, on cross-examination he admitted that he was released from jail
at 3:45 p.m. and that police officers did not arrive at his house till 5:40 p.m.
Second, Sharp testified that he did not send any inappropriate text messages to
G.R., yet he admitted to Aaron that if police officers saw his text messages to G.R.
he would get in trouble. Moreover, Sharp’s credibility is undermined by the fact
that when he did eventually hand over his phone to police officers, he had
completely cleared the phone of any text messages, phone calls, or voicemails.
Lastly, Sharp’s credibility was called into question again when he never denied
sleeping with C.S. when asked by his friends.
{¶43} “It is well-established that ‘[w]hen conflicting evidence is presented
at trial, a conviction is not against the manifest weight of the evidence simply
because the jury believed the prosecution testimony.’ ” State v. Bates, 12th Dist.
Butler No. CA2009-06-174, 2010-Ohio-1723, ¶ 11, quoting State v. Bromagen,
12th Dist. Clermont No. CA2005-09-087, 2006-Ohio-4429, ¶ 38. Further, the
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credibility of witnesses is primarily an issue for the trier of fact. State v. Payne, 3d
Dist. Hancock No. 5-04-21, 2004-Ohio-6487, ¶ 15. Accordingly, this court must
afford the decision of the trier of fact the appropriate deference when considering
such credibility issues. We will not substitute our judgment for that of the trier of
fact on the issue of witness credibility unless it is patently clear that the fact finder
lost its way. Payne at ¶ 15; see also State v. Parks, 3d Dist. Van Wert No. 15-03-
16, 2004-Ohio-4023, ¶ 13.
{¶44} The trier of fact was in the best position to hear all of the witnesses’
testimony, observe the witnesses, and determine their reliability. Further, our
review of the record before us casts serious doubts on whether Sharp’s version of
events was entirely credible. We cannot say that the jury clearly lost its way in
believing the State’s witnesses over Sharp.
{¶45} Sharp also argues that the lack of physical evidence is another reason
to overturn the jury’s verdict. However, the lack of physical and medical evidence
to corroborate G.R.’s allegations is not fatal here since such evidence is not
required to sustain a sex offense conviction. E.g., State v. Branch, 3d Dist. Allen
No. 1-12-44, 2013-Ohio-3192, ¶ 110-112 (rejecting manifest weight of the
evidence challenge of gross sexual imposition convictions that were partially
predicated on lack of physical evidence).
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Case No. 12-13-01
{¶46} In conclusion, based on our review of the record, we are unable to
find that Sharp’s convictions are against the manifest weight of the evidence.
{¶47} Accordingly, we overrule Sharp’s second assignment of error.
Assignment of Error No. III
{¶48} In his third assignment of error, Sharp contends that the trial court
erred when it failed to make the statutorily required findings before imposing
consecutive sentences. We agree.
{¶49} The revisions to the felony sentencing statutes under H.B. 86 now
require a trial court to make specific findings on the record, as set forth in R.C.
2929.14(C)(4), when imposing consecutive sentences. State v. Hites, 3d Dist.
Hardin No. 6-11-07, 2012-Ohio-1892, ¶ 11. Specifically, R.C. 2929.14(C)(4) now
provides:
If multiple prison terms are imposed on an offender for convictions
of multiple offenses, the court may require the offender to serve the
prison terms consecutively if the court finds that the consecutive
service is necessary to protect the public from future crime or to
punish the offender and that consecutive sentences are not
disproportionate to the seriousness of the offender’s conduct and to
the danger the offender poses to the public, and if the court also
finds any of the following:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a
sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18
of the Revised Code, or was under post-release control for a prior
offense.
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Case No. 12-13-01
(b) At least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or more
of the multiple offenses so committed was so great or unusual that
no single prison term for any of the offenses committed as part of
any of the courses of conduct adequately reflects the seriousness of
the offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
(Emphasis added.)
{¶50} Moreover, the Ohio Supreme Court has recently held that a trial
court must state the required findings at the sentencing hearing as well as
incorporate the statutory findings into the sentencing entry. State v. Bonnell, ---
Ohio St.3d---, 2014-Ohio-3177, ¶ 29. “However, a word-for-word recitation of
the language of the statute is not required, and as long as the reviewing court can
discern that the trial court engaged in the correct analysis and can determine that
the record contains evidence to support the findings, consecutive sentences should
be upheld.” Id.
{¶51} We cannot discern from the record that the trial court made any of
the three statutorily required findings. When imposing Sharp’s sentence, the trial
court merely stated that “the harm as to Counts 1 and 3 is so great that a single
term does not adequately reflect the seriousness of the conduct. As a result, I am
ordering that Counts 1 and 3 be a consecutive sentence.” Sentencing Tr., p. 8.
While, it appears that the trial court was attempting to make the finding under R.C.
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Case No. 12-13-01
2929.14(C)(4)(b), the trial court never found that Sharp’s two unlawful sexual
conduct convictions were part of a course of criminal conduct. Moreover, the trial
court never addressed the proportionality of consecutive sentences to the
seriousness of Sharp’s convictions and the danger he posed to the public.
{¶52} Thus, the court’s mere finding that the harm caused in this case was
great2 does not permit us to conclude that the trial court made the statutory
findings that are required by R.C. 2929.14(C)(4).
{¶53} Accordingly, we sustain Sharp’s third assignment of error.
{¶54} Having found no error prejudicial to Sharp in the first or second
assignments of error, but having found error prejudicial to Sharp in the third
assignment of error, we affirm in part and reverse in part the trial court’s judgment
and remand this matter for further proceedings consistent with this opinion.
Judgment Affirmed in Part,
Reversed in Part and
Cause Remanded
SHAW and PRESTON, J.J., concur.
/jlr
2
We note that there was no evidence presented at the sentencing hearing that C.S. or G.R. have
experienced great or unusual harm, except for the argument made by the prosecutor. Neither victim
testified as to the impact Sharp’s behavior has had on them, nor did the victims offer victim impact
statements. Moreover, the pre-sentence investigation report is silent as to the harm to Sharp’s two victims,
and only states that Sharp did not use force and had consensual sex with both girls. We recognize that sex
offenses against minors are heinous by their nature. However, the finding of great or unusual harm requires
more than the mere fact that the offenses were, in fact, committed.
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