State v. Michael ( 2011 )

[Cite as State v. Michael , 2011-Ohio-2691.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. Julie A. Edwards, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 10AP090034
LEVI J. MICHAEL
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Tuscarwas County Court of
Common Pleas, Case No. 2009CR080216
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 2, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RYAN STYER JEREMY J. MASTERS
Tuscarawas County Prosecutor Office of the Public Defender
AMANDA K. MILLER Assistant State Public Defender
Assistant County Prosecutor 250 East Broad Street, Suite 1400
for Tuscarawas County Columbus, Ohio 43215
125 East High Avenue
New Philadelphia, Ohio 44663
Tuscarawas County, Case No. 10AP090034 2
Hoffman, P.J.
{¶1} Defendant-appellant Levi J. Michael appeals his conviction and sentence
entered by the Tuscarawas County Court of Common Pleas, on six counts of rape,
following a jury trial. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE CASE AND FACTS
{¶2} On October 29, 2009, the Tuscarawas County Grand Jury indicted
Appellant on six counts of rape, all in violation of R.C. 2907.02(A)(1)(b), two counts for
each of his three minor children, C.M., S.M., and L.M. Counts One and Two alleged
Appellant engaged in sexual conduct with C.M. when the boy was under the age of ten,
and under the age of thirteen, respectively. Counts Three and Four alleged Appellant
engaged in sexual conduct with S.M. while she was under the age of ten, and under the
age of thirteen, respectively. Counts Five and Six alleged Appellant engaged in sexual
conduct with L.M. while she was under the age of thirteen. Appellant appeared for
arraignment and entered a plea of not guilty to the Indictment. The State filed a Bill of
Particulars which mirrored the Indictment. Appellant filed a Motion for More Specific Bill
of Particulars, asserting the Indictment and Bill of Particulars were inadequate in light of
the Sixth Circuit’s decision in Valentine v. Konteh (C.A. 6 2005) 395 F3d. 626. Although
the State opposed the motion, it filed an Amended Bill of Particulars.
{¶3} The matter proceeded to jury trial on August 10, 2010. Kari Abel, an
investigator with the Tuscarawas County Department of Job and Family Services,
testified the agency received a complaint on August 10, 2009, that one of Appellant’s
children had been sexually abused by a family member. In response, Abel scheduled
interviews with Appellant’s children and other family members. Abel and Detective
Tuscarawas County, Case No. 10AP090034 3
Kathy Bickford of the Tuscarawas County Sheriff’s Department conducted individual
interviews with the children on August 11, 2009. Based upon information obtained
during the interviews, Abel and Bickford made a referral for S.M. at Akron Children’s
Hospital. Thereafter, on August 17, 2009, the Tuscarawas County Juvenile Court
granted temporary custody of the children to the agency. The children were placed in
foster care, and had not seen either Appellant or their mother since that time. Although
TCDJFS had a history with the Michael family, none of the children had disclosed any
incidents of sexual abuse prior to August, 2009.
{¶4} Detective Kathy Bickford testified she has specialized training in
investigating crimes against children. The day after interviewing the children with Abel
Bickford arrested Appellant. Bickford interviewed Appellant after he was booked into
jail. Appellant initially denied all allegations, but on August 13, 2009, he requested to
speak with Bickford. During the second interview, Appellant made several confessions,
including an admission to raping his two daughters. Appellant summarized his
confession in a sworn written statement executed at the conclusion of the second
interview. During a subsequent search of Appellant’s home, Bickford found several
bottles of intimate lubricators and a bottle of EZ anal desensitizing spray gel.
{¶5} Cathy Beckwith-Laube, a licensed social worker employed by the C.A.R.E.
Center at Akron Children’s Hospital, testified she interviewed S.M. prior to her medical
examination at the C.A.R.E. Center in September, 2009. An audio/video recording of
Laube’s interview of S.M. was played in open court in its entirety. Laube also testified
she interviewed C.M. on October 14, 2009. The audio/video recordings of those
interviews were also played for the jury in its entirety.
Tuscarawas County, Case No. 10AP090034 4
{¶6} Donna Abbott, a certified nurse practitioner with the C.A.R.E. Center of
Akron Children’s Hospital, testified she performed the medical examination and
evaluation of C.M. after he had been interviewed by Laube. Abbott testified C.M.’s
medical examination was normal, which was not surprising based upon physiological
reasons. Abbott explained C.M. had been separated from Appellant for over one month
at the time of his medical examination and Appellant had used lubrication during the
acts of penetration, both significant factors which resulted in the normal medical
examination findings.
{¶7} Daryl Steiner, D.O., the medical director at the C.A.R.E. Center, testified
he performed the medical examination of S.M. in September, 2009, following the girl’s
interview with Laube. Dr. Steiner indicated S.M.’s medical examination was normal,
and explained such results were not surprising because the girl had progressed through
nearly the entire pubertal maturation process. Because S.M. was almost completely
mature in her secondary sexual characteristics, the fact there were no signs of residual
tissue injuries was not surprising to Dr. Steiner.
{¶8} All three children testified, recounting the sexual abuse Appellant inflicted
upon them.
{¶9} After hearing all the evidence and deliberating, the jury found Appellant
guilty of all six counts of the indictment and made affirmative findings on all special
findings. The trial court sentenced Appellant to a term of imprisonment of life without
the possibility of parole on Counts One and Three, twenty-five years to life on Counts
Two and Four, and ten years to life for Counts Five and Six. The trial court ordered the
sentences on the counts relating to each child be served concurrently (i.e., Counts One
Tuscarawas County, Case No. 10AP090034 5
and Two which relate to C.M. are to be served concurrently to each other), but
consecutively to the sentences imposed for the counts involving the individual children
(i.e. sentence on counts involving S.M. served consecutive to sentence on counts
involving C.M.).
{¶10} It is from this conviction and sentence Appellant appeals, raising the
following assignments of error:
{¶11} “I. THE TRIAL COURT ERRED BY CONVICTING LEVI MICHAEL BASED
UPON MULTIPLE COUNTS OF A SINGLE OFFENSE, DENYING HIM DUE PROCESS
OF LAW AND VIOLATING THE DOUBLE JEOPARDY CLAUSE. FIFTH AND
FOURTEENTH AMENDMENTS, UNITED STATES CONSTITUTION; SECTION 10,
ARTICLE I, OHIO CONSTITUTION.
{¶12} “II. THE TRIAL COURT VIOLATED LEVI MICHAEL’S RIGHTS TO DUE
PROCESS AND A FAIR TRIAL WHEN, IN THE ABSENCE OF SUFFICIENT
EVIDENCE, THE TRIAL COURT CONVICTED MR. MICHAEL OF RAPE. FIFTH AND
FOURTEENTH AMENDMENTS, UNITED STATES CONSTITUTION; SECTION 16,
ARTICLE I, OHIO CONSTITUTION.
{¶13} “III. THE TRIAL COURT VIOLATED LEVI MICHAEL’S RIGHTS TO DUE
PROCESS AND A FAIR TRIAL WHEN IT ENTERED A JUDGMENT OF CONVICTION
FOR RAPE, WHICH WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
FIFTH AND FOURTEENTH AMENDMENTS, UNITED STATES CONSTITUTION;
SECTION 16, ARTICLE I, OHIO CONSTITUTION.”
Tuscarawas County, Case No. 10AP090034 6
I
{¶14} In his first assignment of error, Appellant argues he was denied his due
process rights because the trial court convicted him of two counts of rape which were
differentiated only by the broad time periods involved. Specifically, Appellant
challenges the lack of specificity in which Counts One and Two of the Indictment were
charged.
{¶15} “No principle of procedural due process is more clearly established than
that notice of the specific charge, and a chance to be heard in a trial of the issues raised
by that charge, if desired, are among the constitutional rights of every accused in a
criminal proceeding in all courts, state or federal.” Cole v. Arkansas (1948), 333 U.S.
196, 201.
{¶16} Appellant relies upon Valentine v. Konteh (C.A.6, 2005), 395 F.3d 626,
and State v. Hemphill, Cuyahoga App. No. 85431, 2005-Ohio-3726, which followed
Valentine, in support of his position his constitutional due process rights were violated
when the trial court convicted him of two counts of rape involving C.M. In Valentine, the
United States Court of Appeals for the Sixth Circuit granted habeas corpus relief,
concluding the petitioner’s convictions violated his due process rights because the
prosecution failed to make any factual distinctions among the counts, permitting the
petitioner to be “prosecuted and convicted for a generic pattern of abuse rather than for
forty separate abusive incidents.” Id. at 634.
{¶17} In Valentine, the petitioner was convicted of 40 counts of sexual abuse: 20
counts each of rape and felonious sexual penetration. The counts of each crime were
identically worded in the indictment. The 8-year-old victim described “typical” abusive
Tuscarawas County, Case No. 10AP090034 7
behavior by the defendant and then testified the “typical” abuse occurred twenty or
fifteen times. Other than the victim's estimate, the State failed to present any evidence
as to the number of incidents. Id. at 633. The Sixth Circuit found the petitioner’s
constitutional rights were violated because there were no distinctions made at any time
before or during trial to differentiate one incident of sexual abuse from another in order
to match each charge with a specific incident. The Valentine Court focused on the fact
there were no factual bases for forty separate incidents contained in the indictment, the
bill of particulars, or in the testimony at trial. Id. at 633. This prevented the jury from
considering each count because they were not connected to distinguishable incidents.
Id. at 633-634.
{¶18} We find Valentine to be factually distinguishable. In the instant action,
Appellant was charged with two counts of rape involving C.M. The State tailored each
offense to fit a particular time period. Count One, while charged as a continuing course
of conduct, encompassed the period of time from when Appellant’s abuse of C.M.
began until just prior to the child’s tenth birthday. Count Two, which was also charged
as a continuing course of conduct, encompassed the time period from when C.M. was
ten years of age until the abuse was disclosed and Appellant was arrested. As will be
discussed infra, the testimony at trial supported convictions under both time periods.
{¶19} We find Counts One and Two of the Indictment were charged with
sufficient specificity to put Appellant on notice of the charges against him.
{¶20} Based upon the foregoing, Appellant’s first assignment of error is
overruled.
Tuscarawas County, Case No. 10AP090034 8
II, III
{¶21} In his second and third assignments of error, Appellant maintains his
convictions on Counts One, Two, and Three were based upon insufficient evidence and
were against the manifest weight of the evidence.
{¶22} Our standard of reviewing a claim a verdict was not supported by sufficient
evidence is to examine the evidence presented at trial to determine whether the
evidence, if believed, would convince the average mind of the accused's guilt beyond a
reasonable doubt. 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 the
essential elements of the crime proven beyond a reasonable doubt, State v. Jenks
(1991), 61 Ohio St.3d 259, 574 N.E.2d 492, superseded by State constitutional
amendment on other grounds as stated in State v. Smith (1997), 80 Ohio St.3d 89, 684
N.E.2d 668.
{¶23} The Supreme Court has explained the distinction between claims of
sufficiency of the evidence and manifest weight. Sufficiency of the evidence is a
question for the trial court to determine whether the State has met its burden to produce
evidence on each element of the crime charged, sufficient for the matter to be submitted
to the jury.
{¶24} Manifest weight of the evidence claims concern the amount of evidence
offered in support of one side of the case, and is a jury question. We must determine
whether the jury, in interpreting the facts, so lost its way that its verdict results in a
manifest miscarriage of justice, State v. Thompkins (1997), 78 Ohio St.3d 387, 678
N.E.2d 541, 1997-Ohio-52, superseded by constitutional amendment on other grounds
Tuscarawas County, Case No. 10AP090034 9
as stated by State v. Smith, 80 Ohio St.3d 89, 1997-Ohio-355, 684 N.E.2d 668. On
review for manifest weight, a reviewing court is “to examine the entire record, weigh the
evidence and all reasonable inferences, consider the credibility of the witnesses and
determine whether in resolving conflicts in the evidence, the trier of fact clearly lost its
way and created such a manifest miscarriage of justice that the judgment must be
reversed. The discretionary power to grant a new hearing should be exercised only in
the exceptional case in which the evidence weighs heavily against the judgment.” State
v. Thompkins, supra, 78 Ohio St.3d at 387, citing State v. Martin (1983), 20 Ohio
App.3d 172, 175. Because the trier of fact is in a better position to observe the
witnesses' demeanor and weigh their credibility, the weight of the evidence and the
credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10
Ohio St.2d 230, 227 N.E.2d 212, syllabus 1.
{¶25} We first address Appellant’s sufficiency of the evidence challenge. Counts
One and Two involve Appellant’s son, C.M. Count Three involves Appellant’s middle
child, S.M. As discussed, supra, Count One charged rape as a continuing course of
conduct when C.M. was under the age of ten, and Count Two charged rape as a
continuing course of conduct when C.M. was over the age of ten, but under the age of
thirteen. Count Three charged rape as a continuing course of conduct when S.M. was
under the age of ten. Appellant submits the State failed to satisfy the age element
relative to each count. Appellant explains C.M. neither testified regarding a separate,
distinct incident of sexual conduct which occurred before the age of ten nor a separate,
distinct incident of sexual conduct which occurred after the age of ten, but before the
age of thirteen, and S.M., likewise, did not testify regarding a separate, distinct incident
Tuscarawas County, Case No. 10AP090034 10
of sexual conduct which occurred before the age of ten. Appellant concludes without
such testimony there was insufficient evidence to sustain his convictions on Counts
One, Two, and Three. We disagree.
{¶26} First, the specific age of a rape victim is not an element of the offense, but
rather a special finding which is for sentence enhancement purposes only. Thus,
Appellant cannot utilize any alleged failure by the State to present evidence of the
victims’ ages as support for his argument his underlying convictions for rape are based
upon insufficient evidence.
{¶27} Furthermore, we find the State presented sufficient evidence Appellant
raped C.M. when the child was under the age of ten, and also when the boy was over
the age of ten, but under the age of thirteen. C.M. testified Appellant began abusing him
when he was five years old. At the time of trial, C.M. was eleven years old, his birthday
being January 8, 1999. C.M. recalled the last time Appellant abused him was just prior
to C.M. being placed in foster care in August, 2009, some nine months after he turned
ten years old. Cathy Beckwith-Laube, the social worker at the C.A.R.E. Center, testified
she interviewed C.M. An audio/video recording of the interview was played for the jury.
We have reviewed the recording and find this evidence alone is sufficient to support
Appellant’s convictions on Counts One and Two.
{¶28} We also find the State presented sufficient evidence Appellant raped S.M.
when the girl was under the age of ten. S.M. testified Appellant began abusing her when
she was between six and eight years old. At the time of trial, S.M. was thirteen years
old, her birthday being July 5, 1997. Laube also testified she interviewed S.M. An
audio/video recording of the interview was played for the jury. We have reviewed the
Tuscarawas County, Case No. 10AP090034 11
recording and find this evidence alone is sufficient to support Appellant’s conviction on
Count Three.
{¶29} We now turn to Appellant’s assertion his convictions on Counts One, Two,
and Three were against the manifest weight of the evidence. Appellant contends the
testimony of C.M. and S.M. was “vague, uncertain, inconsistent, and incomplete”, and
by relying on such, the jury clearly lost its way. Again, Appellant focuses his argument
on the evidence presented at trial as to the ages of the victims. For the reasons we
found the convictions were based upon sufficient evidence, we, likewise, find the
convictions were not against the manifest weight of the evidence.
{¶30} Appellant’s second and third assignments of error are overruled.
{¶31} The judgment of the Tuscarawas County Court of Common Pleas is
affirmed.
By: Hoffman, P.J.
Edwards, J. and
Delaney, J. concur
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Julie A. Edwards___________________
HON. JULIE A. EDWARDS
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY
Tuscarawas County, Case No. 10AP090034 12
IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
LEVI J. MICHAEL :
:
Defendant-Appellant : Case No. 10AP090034
For the reasons stated in our accompanying Opinion, the judgment of the
Tuscarawas County Court of Common Pleas is affirmed. Costs to Appellant.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Julie A. Edwards___________________
HON. JULIE A. EDWARDS
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY