State v. Brown , 2013 Ohio 3134 ( 2013 )

[Cite as State v. Brown, 2013-Ohio-3134.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99024
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
RAPHEL BROWN
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-559366
BEFORE: E.A. Gallagher, J., Jones, P.J., and Keough, J.
RELEASED AND JOURNALIZED: July 18, 2013
ATTORNEY FOR APPELLANT
Joseph Vincent Pagano
P.O. Box 16869
Rocky River, OH 44116
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Brent C. Kirvel
Mollie Ann Murphy
Assistant County Prosecutors
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
EILEEN A. GALLAGHER, J.:
{¶1} Raphel Brown appeals his convictions and sentence in the Cuyahoga
County Court of Common Pleas. For the following reasons, we affirm in part and
reverse in part.
{¶2} A true bill indictment was returned against Brown charging him with seven
counts of rape with sexually violent predator specifications; two counts of kidnapping
with sexual motivation specifications and sexually violent predator specifications;
aggravated burglary; intimidation of a crime victim or witness; resisting arrest;
falsification;and breaking and entering.
{¶3} Relevant to the present appeal, the first four counts of the indictment were
all alleged to have occurred in the victim’s “back living room.” The first count alleged
that appellant vaginally penetrated the victim while each of Counts 2, 3 and 4 alleged that
appellant anally penetrated the victim.
{¶4} Appellant pled not guilty and engaged in discovery with the state of Ohio,
including filing a request for a bill of particulars pursuant to Crim.R. 7(E). The state
filed a responsive bill of particulars with respect to those specific counts as follows:
Responding to the request of the Defendant, Raphel Brown, for a Bill of
Particulars, the Prosecuting Attorney says that the State of Ohio will prove
on the trial of the above-entitled case, the following:
Count 1: Rape, 2907.02(A)(2)
That on or about February 1, 2012, and at the location of [address],
the Defendant Raphel Brown, did engage in sexual conduct, to wit: Vaginal
Penetration in the back living room, with Jane Doe by purposely
compelling her to submit by force or threat of force contrary to the form of
the statute in such case made and provided, and against the peace and
dignity of the State of Ohio.
FURTHERMORE, the offender is a sexually violent predator.
Count 2: Rape, 2907.02(A)(2)
That on or about February 1, 2012, and at the location of [address],
the Defendant Raphel Brown, did engage in sexual conduct, to wit: Anal
Penetration in the back living room, with Jane Doe by purposely
compelling her to submit by force or threat of force contrary to the form of
the statute in such case made and provided, and against the peace and
dignity of the State of Ohio.
FURTHERMORE, the offender is a sexually violent predator.
Count 3: Rape, 2907.02(A)(2)
That on or about February 1, 2012, and at the location of [address],
the Defendant Raphel Brown, did engage in sexual conduct, to wit: Anal
Penetration in the back living room, with Jane Doe by purposely
compelling her to submit by force or threat of force contrary to the form of
the statute in such case made and provided, and against the peace and
dignity of the State of Ohio.
FURTHERMORE, the offender is a sexually violent predator.
Count 4: Rape, 2907.02(A)(2)
That on or about February 1, 2012, and at the location of [address],
the Defendant Raphel Brown, did engage in sexual conduct, to wit: Anal
Penetration in the back living room, with Jane Doe by purposely
compelling her to submit by force or threat of force contrary to the form of
the statute in such case made and provided, and against the peace and
dignity of the State of Ohio.
FURTHERMORE, the offender is a sexually violent predator.
{¶5} The case proceeded to trial where the following facts were presented:
{¶6} On February 1, 2012, M.O. returned to her home in Euclid at approximately
10:30 p.m. M.O.1 fell asleep on a couch in the back family room of her home. She
was awakened around 3:45 a.m. and saw a man dressed in black in the room with her.
M.O. testified that the entrances to the home had been locked that night. The man
ordered her to lay on her stomach on the floor and then he laid on top of her. He pulled
her pants down and penetrated her with his penis twice in her vagina and twice in her
anus. Each time she attempted to get up, the man pushed her back to the floor.
{¶7} The intruder forced M.O. to write a note stating that they engaged in
consensual sex. The intruder picked her up and forced her into a bedroom in the home
where he again penetrated her: twice in the anus and once in the vagina. After these
rapes were committed, the intruder took her to a room that was lit well enough that she
was able to see his face and she identified him at trial as the appellant. The intruder told
M.O. that he had entered the home through a bedroom window on the side of the house.
When he left the house, he unlocked the front door from the inside and he neglected to
take with him the note that he caused M.O. to write.
{¶8} After appellant left, M.O. called her mother and the police, both of whom
arrived on the scene. M.O.’s mother testified that upon arriving at the home, she
observed a bedroom window on the side of the house to be open.
{¶9} Officer David Williams of the Euclid Police Department testified that he
arrived at M.O.’s home on the morning of February 1, 2012, in response to a call
reporting a rape at that location. Williams spoke with M.O. and received a description
The victim’s initials will be substituted herein although in its charge to the
1
jury, the court did state her name.
of the assailant and his clothing, which he then broadcast to other officers. Williams
testified that he received information that a citizen had reported seeing the suspect on
East 270 Street and he found appellant there, approximately one-quarter of a mile from
the street where M.O. lived. Officer Williams engaged the appellant in conversation
and the appellant identified himself as “Eddy Arnold.” According to Officer Williams,
appellant ran upon the approach of additional police officers.
{¶10} During a search of the area, appellant was found hiding in a garage on
East 270. At trial, the homeowner of that property testified that appellant had no
permission to enter her property.
{¶11} Detective David Roose testified that he was present at the garage on East
270. Appellant refused police orders to show his hands and exit the garage thereby
necessitating the use of a taser on him. Roose testified that the taser was repeatedly
deployed and that while he attempted to handcuff the appellant the appellant continued to
physically resist.
{¶12} Detective Anthony Medved testified that he interviewed M.O. and also
examined her home. He found an open, unlocked window believed to be the point of
entry, trampled leaves outside the window, and a footprint with a leaf inside the home
near the open window.
{¶13} M.O. was transported to Hillcrest Hospital where Courtney Kwapinski, a
Sexual Assault Nurse Examiner (“a SANE nurse”), performed an examination and
collected evidence including both vaginal and anal swabs. Ms. Kwapinski testified that
M.O. complained of rectal pain, that she had a “possible notch versus estrogized hymen,”
that the vaginal opening was red and “reddened” and that there were abrasions in the anal
opening.
{¶14} The specimens obtained at Hillcrest as well as a bucal swab taken from
the appellant and a standard from M.O. were submitted to the Ohio Bureau of Criminal
Investigation where they were examined. The specimens were determined to be a
mixture consistent with both appellant and M.O. indicating that appellant had sexual
relations with M.O.
{¶15} At the conclusion of trial, appellant made a motion for acquittal pursuant
to Crim.R. 29, which the trial court granted as to Count 11 — intimidation of a crime
victim or witness. In addition, the trial court amended Count 14 — breaking and
entering to criminal trespass.
{¶16} The state failed to move to amend any of the rape charges in Counts 2, 3
or 4 from anal rape to vaginal rape and the trial court neglected to amend the indictment
to conform to the evidence as provided in Crim.R. 7. The instructions to the jury as well
as the verdict forms mirrored the indictment language as to those counts but for an
amendment from the words “back living room” to “back family room.”
{¶17} The appellant was found to be guilty of all charges.
{¶18} Prior to sentencing, the state moved to dismiss all of the sexually violent
predator specifications, a motion which the court granted.
{¶19} At sentencing, the trial court merged both counts of kidnapping with the
associated rape counts and the state elected to proceed with sentencing on the rapes.
The trial court imposed prison terms of eight years on each of the vaginal rapes, ten years
for each of the anal rapes and ten years for aggravated burglary. Appellant was also
sentenced to 90 days in the county jail for resisting arrest, six months in the county jail
for falsification and 30 days in the county jail for criminal trespass. The eight-year
prison terms for the vaginal rapes were ordered to run concurrent to each other; the prison
terms for the anal rapes to run concurrent to each other, but those sentences as well as the
aggravated burglary sentence were ordered to run consecutive to one another for a
cumulative prison sentence of 28 years. Appellant was also advised of five years
mandatory postrelease control and was determined to be a Tier III sex offender.
{¶20} In his first assignment of error, appellant argues that the state failed to
present sufficient evidence to support his conviction on one of the three anal rape counts
in the family room as well as the charge of resisting arrest.
{¶21} This court has said, in evaluating a sufficiency of the evidence argument,
courts are to assess not whether the state’s evidence is to be believed but whether, if
believed, the evidence against a defendant would support a conviction. State v. Givan,
8th Dist. No. 94609, 2011-Ohio-100, ¶ 13, citing State v. Thompkins, 78 Ohio St.3d 380,
386, 1997-Ohio-52, 678 N.E.2d 541. The relevant inquiry is whether, after viewing the
evidence in a light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime proven beyond a reasonable doubt. Id. The
weight and credibility of the evidence are left to the trier of fact. State v. Jackson, 8th
Dist. No. 86542, 2006-Ohio-1938, ¶ 23.
{¶22} In Counts 1, 2, 3 and 4, appellant was charged with rape in violation of
R.C. 2907.02(A)(2), which states, “[n]o person shall engage in sexual conduct with
another when the offender purposely compels the other person to submit by force or
threat of force.”
{¶23} “Sexual conduct” is defined in R.C. 2907.01(A) 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.
{¶24} The Constitution of the state of Ohio provides at Article I, Section 10
that “no person shall be held to answer for a capital, or otherwise infamous, crime, unless
on presentment or indictment of a grand jury * * *.”
{¶25} In this case, a grand jury returned a true bill indictment with great
specificity as to Counts 1, 2, 3 and 4. The indictment specified the location of those
rapes and the type of rape committed. There is no dispute that the state failed to present
evidence of three anal rapes in the family room. Nonetheless the state failed to move,
pursuant to Crim.R. 7, to amend the indictment to conform to the testimony of the victim
and the court failed to do so on its own initiative. Furthermore, the jury was specifically
instructed as to Counts 2, 3 and 4 that
before you can find the defendant guilty of rape in Count 1 and/or Count 2
and/or Count 3 and/or Count 4 * * * the defendant engaged in sexual
conduct with M.O. as follows: In Count 1, vaginal penetration in the back
family room. In Count 2, anal penetration in the back family room. In
Count 3, anal penetration in the back family room. In Count 4, anal
penetration in the back family room * * *.
{¶26} The state, relying on State v. Thompson, 33 Ohio St.3d 1, 514 N.E.2d 407(1987), argues that the above defects should be ignored because the Ohio Supreme Court
has noted that R.C. 2907.02(A)(2) and 2907.01(A) do not require that a specific finding
be made by the jury as to the type of rape. Id. at 11. A jury need only find that one of
the forms of sexual conduct took place between the victim and appellant to find that a
rape had been committed. Id. The state argues that because the victim testified to two
instances of vaginal rape and two instances of anal rape in the back family room,
sufficient evidence was presented to support appellant’s four rape convictions associated
with that room regardless of the indictment and jury instructions. We do not agree.
{¶27} We find Thompson to be distinguishable from the present case because
Thompson did not deal with a sufficiency challenge concerning a defendant indicted, with
specificity, to a form of rape and jury instructions patently inconsistent with the facts
revealed at trial, but instead dealt with the question of whether, for the purposes of a
unanimous verdict, a trial court erred by not instructing a jury to make a specific finding
as to whether a defendant committed either vaginal rape, anal rape, or both.
{¶28} We find State v. Hines, 145 Ohio App.3d 792, 764 N.E.2d 1040 (8th
Dist.2001), to be instructive in the present instance. The defendant in Hines was
charged with disrupting public service in violation of R.C. 2909.04. The testimony
revealed that, at the scene of a fire, the defendant, noticeably agitated, approached a crew
of firefighters and began yelling at a pump operator causing the firefighters to call the
police. As he walked away, the defendant threw a rock at the firefighters, which struck
the pumper. At trial, the firefighters testified that the defendant’s conduct interfered
with their ability to perform their duties by drawing them away from their posts.
{¶29} The statute allowed for two potential theories of guilt: “(1) the defendant
purposely by any means substantially impaired the ability of the firefighters to respond to
the fire or to protect persons or property and (2) the defendant substantially impaired the
firefighters’ ability to respond by knowingly damaging or tampering with any property.”
R.C. 2909.04. The indictment specifically charged the defendant with impairment by
damaging or tampering with property and the jury instructions described the offense in
the same terms as the indictment.
{¶30} This court overturned the defendant’s conviction because the evidence
was insufficient to show that he knowingly, by damaging or tampering with property,
substantially impaired the abilities of the firefighters. This court noted that the
indictment was not amended pursuant to Crim.R. 7 to incorporate the other theory of guilt
available and thus refused to consider the argument that the evidence supported the
defendant’s conviction on the alternative theory, which was not charged or instructed.
{¶31} We find Hines to be controlling. Our conclusion is further colored by
our concerns for the due process rights of defendants. We find the concerns expressed
by the Ohio Supreme Court in State v. Lynn, 129 Ohio St.3d 146, 2011-Ohio-2722, 950
N.E.2d 931, to be applicable in the present instance. “Due process requires that the state
establish beyond a reasonable doubt every fact necessary to constitute the crime charged.”
Id. at ¶ 15. “As a general rule, a defendant is entitled to have the jury instructed on all
elements that must be proved to establish the crime with which he is charged * * *.”
State v. Adams, 62 Ohio St.2d 151, 153, 404 N.E.2d 144 (1980).
{¶32} In Lynn, the defendant broke into his girlfriend’s apartment and assaulted
her. A Montgomery County Grand Jury indicted Lynn on aggravated burglary and
specified that he trespassed with a purpose to commit theft. Prior to trial, the state filed
a motion to amend the indictment to remove the word “theft.” Lynn opposed the
amendment and the trial court denied the motion. At the conclusion of trial, the trial
court instructed the jury on the elements of theft as well as assault. The trial court
further “provided interrogatories to the jury to probe whether the jury found that the
criminal offense that Lynn entered the apartment with purpose to commit was theft or
assault.” Lynn did not object to the jury instruction or the interrogatories. The jury
returned a guilty verdict on the aggravated burglary charge and in the separate
interrogatories unanimously found that Lynn committed the underlying offense of assault
and did not commit theft.
{¶33} The Second District Court of Appeals reversed Lynn’s conviction holding
that the trial court erred in instructing the jury on assault in light of the indictment and
had “broadened the possible basis for conviction beyond that considered and specified by
the grand jury.” Lynn, 185 Ohio App.3d 390, 2009-Ohio-6812, 924 N.E.2d 397, at ¶
20.
{¶34} The Ohio Supreme Court reversed the judgment of the Second District
applying a plain error analysis due to Lynn’s failure to object to the jury instruction and
interrogatories. In regard to Lynn’s due process rights, the court explained that an
indictment meets constitutional requirements if it first, contains the elements of the
offense charged and fairly informs a defendant of the charge against which he must
defend, and, second, enables him to plead an acquittal or conviction in bar of future
prosecutions for the same offense. Lynn at ¶ 20, quoting State v. Buehner, 110 Ohio
St.3d 403, 2006-Ohio-4707, 853 N.E.2d 1162, ¶ 9.
{¶35} The court noted that the better procedure in Lynn’s case would have
been for the trial court to have allowed the amendment of the indictment prior to trial.
Id. at 19. However, because Lynn received the state’s evidence prior to trial and was
aware that the term “theft” was incorrectly stated surplusage, the court concluded that the
indictment provided Lynn with sufficient notice of the charge against which he would be
called to defend. Id. at 21. Therefore, the court found that the trial court did not
violate Lynn’s due process rights by conforming the jury instructions to the evidence
presented at trial and instructing the jury on the correct underlying criminal offense.
{¶36} The present case is distinguishable from Lynn because, unlike Lynn, the
state did not move prior to trial to amend the indictment. In fact, the state did not move
for an amendment even after the trial testimony was concluded. Most importantly, in
Lynn there was no dispute that the defense was aware of the error prior to trial in light of
the evidence received from the state and the state’s attempt to amend the indictment. In
the case before us, there is no such indication that appellant was put on notice that the
indictment was inaccurate.
{¶37} Finally, unlike Lynn, the trial court here did not conform the jury
instructions to comport with the evidence and the jury expressly found three anal rapes in
contravention of the evidence adduced at trial.
{¶38} Consistent with this court’s decision in Hines, we find that the state
failed to present sufficient evidence of a third anal rape in the back family room. We
decline to consider the state’s argument that appellant’s rape conviction must stand under
an alternative theory that was neither charged nor instructed.
{¶39} Appellant further argues that his conviction for resisting arrest in
violation of R.C. 2921.33(A) was not supported by sufficient evidence. To prove
resisting arrest, the state had to prove under this section that appellant did recklessly or by
force, resist or interfere with his lawful arrest. The evidence in this case supports his
resisting arrest conviction and is consistent with conduct we have previously upheld as
sufficient to support a resisting arrest conviction. See, e.g., State v. Melton, 8th Dist.
No. 97245, 2012-Ohio-2386, ¶ 15. Detective Roose testified to observing another
officer commanding the appellant to show his hands, comply and come out of the garage
in which he was hiding. Appellant refused to comply necessitating the use of a taser.
Even after the taser was initially used, appellant continued to disobey all orders and
physically resisted Detective Roose’s efforts to effectuate the arrest and handcuff him.
Appellant’s resistance required all of the detective’s strength to handcuff one of his arms
and the further use of the taser to force his compliance.
{¶40} Appellant’s first assignment of error is sustained, in part, and overruled, in
part.
{¶41} In his second assignment of error, appellant argues that reversible error
occurred when testimony concerning his refusal to consent to a DNA sample was
introduced during the testimony of Detective Medved. Detective Medved testified that
he requested appellant to provide a voluntary submission of his DNA and that appellant
declined. The prosecutor further noted appellant’s refusal to voluntarily provide his
DNA during his closing argument.
{¶42} The record reflects that appellant failed to object to the relevant
questioning to which he now takes issue. In fact, after the jury began deliberating, the
trial court provided appellant with an opportunity to make a record of an objection on this
matter. The trial court indicated that the issue of appellant’s voluntary DNA submission
had been raised in a discussion at sidebar. However, appellant declined to enter an
objection on the record. Therefore, we review the admission of the evidence under a
plain error standard. State v. Jaime, 8th Dist. No. 94401, 2010-Ohio-5783, ¶ 13-16,
citing State v. Gooden, 8th Dist. No. 82621, 2004-Ohio-2699. “Plain error does not
exist unless it can be said that, but for the error, the outcome of the trial would clearly
have been otherwise.” Id. at ¶ 16.
{¶43} The Ohio Supreme Court has previously stated, “courts disapprove of
penalties imposed for exercising constitutional rights.” State v. Landrum, 53 Ohio St.3d
107, 110, 559 N.E.2d 710 (1990). “Prosecutorial comment that ‘cuts down on’ a
constitutional right ‘by making its assertion costly’ is forbidden.” State v. Wiles, 59
Ohio St.3d 71, 88, 571 N.E.2d 97 (1991), citing Griffin v. California, 380 U.S. 609, 614,
85 S.Ct. 1229, 14 L.Ed.2d 106 (1965).
{¶44} Appellant argues that through the admission of the subject testimony the
prosecutor improperly commented upon his choice to exercise his Fourth Amendment
right to refuse to consent to the DNA swab. He asserts that evidence that he exercised
his Fourth Amendment rights cannot be admitted as proof of consciousness of guilt and
equates it to an improper comment upon his Fifth Amendment right to remain silent.
{¶45} Appellant’s arguments are without merit. In regard to a DNA bucal
swab of an arrestee, the United State Supreme Court recently held that:
DNA identification of arrestees is a reasonable search that can be
considered part of a routine booking procedure. When officers make an
arrest supported by probable cause to hold for a serious offense and they
bring the suspect to the station to be detained in custody, taking and
analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and
photographing, a legitimate police booking procedure that is reasonable
under the Fourth Amendment.
Maryland v. King, 569 U.S. ____, 133 S.Ct. 19958, 186 L.Ed.2d 1 (2013).
{¶46} Furthermore, R.C. 2901.07(B)(1)(a) instructs arresting law enforcement
agencies, on or after July 1, 2011, to collect a DNA specimen from an arrestee who is 18
years of age or older during the intake process subsequent to arrest. Because appellant
had no Fourth Amendment right to decline to provide his DNA subsequent to his arrest,
the testimony to which he takes issue was not improper.
{¶47} Even if we did find the above testimony to have been improperly
admitted, the Ohio Supreme Court has recognized that “where evidence has been
improperly admitted in derogation of a criminal defendant’s constitutional rights, the
admission is harmless ‘beyond a reasonable doubt’ if the remaining evidence alone
comprises ‘overwhelming' proof of defendant’s guilt.” State v. Williams, 6 Ohio St.3d
281, 290, 452 N.E.2d 1323 (1983), citing Harrington v. California, 395 U.S. 250, 254, 89
S.Ct. 1726, 23 L.Ed.2d 284 (1969). Any error in admitting this isolated testimony was
unequivocally harmless beyond a reasonable doubt when considering the record as a
whole and the overwhelming evidence of appellant’s guilt contained therein.
{¶48} Appellant’s second assignment of error is overruled.
{¶49} In his third assignment of error, appellant argues that the trial court erred
in allowing the victim to read her entire police statement into the record on redirect
examination after the defense introduced portions of the victim’s statement during
cross-examination that were not consistent with her testimony in court. Appellant did
not object to the introduction of the statement and has waived all but plain error.
{¶50} The decision whether to admit or to exclude evidence rests within the
sound discretion of the trial court. State v. Jacks, 63 Ohio App.3d 200, 207, 578 N.E.2d
512 (8th Dist.1989). Therefore, an appellate court that reviews the trial court’s decision
with respect to the admission or exclusion of evidence must limit its review to a
determination of whether the trial court committed an abuse of discretion. State v.
Finnerty, 45 Ohio St.3d 104, 107, 543 N.E.2d 1233 (1989).
{¶51} On cross-examination of the victim, defense counsel sought to impeach
her credibility with questions referencing portions of her police statement and implying
that she had fabricated relatively minor details of her in-court testimony because she had
not included such details in her statement to police. On redirect, the prosecutor elicited
the circumstances in which the statement was made, to-wit: in the emergency room at
Hillcrest Hospital prior to the SANE exam and asked the victim to read her relatively
short written statement in order to provide context. This was proper, since on
cross-examination an implication of fabrication and improper motive was made, which is
the basis for admitting such statements under Evid.R. 801(D)(1)(b). State v. Wilson, 8th
Dist. No. 96380, 2012-Ohio-102, ¶ 41. We cannot say that the admittance of the
statement amounted to plain error.
{¶52} Appellant’s third assignment of error is overruled.
{¶53} In his fourth assignment of error, appellant asserts that his convictions for
rape, kidnapping, aggravated burglary, resisting arrest, falsification, and criminal trespass
were against the manifest weight of the evidence.
{¶54} A manifest weight challenge questions whether the prosecution met its
burden of persuasion. State v. Byrd, 8th Dist. No. 98037, 2012-Ohio-5728, ¶ 27.
When considering a manifest weight challenge, a reviewing court reviews the entire
record, weighs the evidence and all reasonable inferences therefrom, considers the
credibility of the witnesses and determines whether the finder of fact clearly lost its way.
State v. Jackson, 8th Dist. No. 86542, 2006-Ohio-1938, ¶ 29. A reviewing court may
reverse the judgment of conviction if it appears that the trier of fact clearly lost its way
and created such a manifest miscarriage of justice that the conviction must be reversed
and a new trial ordered. Id.{¶55} Appellant argues that the evidence at trial indicated the encounter between
appellant and the victim was consensual and the jury lost its way in convicting him of the
above crimes. We disagree. Appellant bases this assertion on several nebulous pieces
of evidence including: the fact that the victim was able to recall a portion of appellant’s
phone number despite denying any prior contact with appellant; the fact that the victim’s
home showed no signs of forced entry; the fact that the victim testified that appellant
ordered her to write a note indicating the sexual encounter was consensual, but appellant
left this allegedly exculpatory note behind with the victim and the SANE nurse’s
testimony that the victim did not suffer an injury generally consistent with forcible rape.
{¶56} Although appellant suggested in his opening statement that his encounter
with M.O. was consensual, appellant failed to testify or otherwise present any evidence
indicative of consent.
{¶57} With the exception of the third anal rape in the back family room
addressed in appellant’s first assignment of error, in light of the entire record, we cannot
say that the finder of fact clearly lost its way in finding appellant guilty of the above
crimes. Each of the evidentiary items to which appellant takes issue was explained and
outweighed by evidence indicative of a non-consensual encounter. M.O. explained that
appellant felt remorse over his actions and wished to “make it up to her,” and, apparently
to this end, he showed her his cell phone number. M.O. also testified that appellant
revealed to her how he gained initial entry to the home. Appellant’s intent in ordering
the victim to write a note indicating that their sexual encounter was consensual is unclear
because even had he retained possession of the note, it would not have been exculpatory
in light of the victim’s testimony. Finally, although the SANE nurse could not rule out
the possibility of a consensual encounter, the nurse testified that the results of her
examination were consistent with repeated assault. Accordingly, we cannot state that
the trier of fact lost its way and created such a manifest miscarriage of justice that the
convictions must be reversed and a new trial ordered.
{¶58} Appellant’s fourth assignment of error is overruled.
{¶59} In his fifth assignment of error, appellant asserts that he was deprived of
his constitutional right to a fair trial due to testimony elicited from the victim regarding
her Roman Catholic faith.
{¶60} At trial the prosecutor elicited testimony from the victim that prior to
returning home on the night of the incident, she had been working at a job at her church.
The prosecutor then asked if she and her family were practicing Roman Catholics and the
victim answered that they were. The prosecutor also asked questions regarding the
victim’s activity during the day leading up to the incident and the victim testified that she
had spent the day at church. Appellant did not object to this testimony.
{¶61} Appellant argues that the above testimony was improperly elicited for the
purpose of enhancing the victim’s credibility, which is prohibited under Evid.R. 610.
State v. Beasley, 8th Dist. No. 88989, 2007-Ohio-5432, ¶ 37. Because appellant did not
object to this testimony, we review the admission of the evidence for plain error. Plain
errors are obvious defects in trial proceedings that affect “substantial rights,” and
“although they were not brought to the attention of the court,” they may be raised on
appeal. Crim.R. 52(B). To affect substantial rights, “the trial court’s error must have
affected the outcome of the trial.” State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68,
759 N.E.2d 1240. Plain error is recognized “only in exceptional circumstances * * * to
avoid a miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 94-95, 372 N.E.2d 804(1978).
{¶62} We decline to find plain error in this instance. Portions of the testimony
to which appellant now objects were clearly relevant as context explaining the victim’s
activity leading up to the incident and relevant to contradict the defense’s implication that
appellant and the victim met beforehand and that the sexual activity was consensual.
Although the state’s questioning regarding the victim’s religion appears to lack relevance,
the testimony was not tied to credibility in any obvious fashion and we cannot say that its
admission rose to the level of plain error.
{¶63} Similarly, we reject appellant’s argument that he received ineffective
assistance of counsel because his attorney failed to object to the above testimony. In
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the
United States Supreme Court set forth the two-pronged test for ineffective assistance of
counsel. It requires that the defendant show (1) counsel’s performance was deficient;
and (2) the deficient performance prejudiced the defense. The first prong “requires
showing that counsel made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687. The second
prong requires showing that counsel’s errors were “so serious as to deprive the defendant
of a fair trial, a trial whose result is unreliable.” Id. In other words, a defendant must
show that there is a reasonable probability that the outcome of the proceedings would
have been different but for counsel’s deficient performance. Id. at 694.
{¶64} As addressed above, we cannot say that appellant was deprived of a fair
trial as a result of the introduction of the subject testimony. In light of the record, it
cannot be said that there is a reasonable probability that the outcome of the proceedings
would have been different had appellant’s counsel objected to this particular line of
questioning. Accordingly, appellant has not established ineffective assistance.
{¶65} Appellant’s fifth assignment of error is overruled.
{¶66} In his sixth assignment of error appellant argues that his prison sentence is
contrary to law and an abuse of the trial court’s discretion. Appellant argues specifically
that the trial court failed to consider R.C. 2929.11 and failed to make the necessary
findings pursuant to R.C. 2929.14(C)(4) prior to imposing consecutive sentences.
{¶67} This court no longer applies the abuse of discretion standard of State v.
Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124 (11th Dist.), when
reviewing a felony sentence. State v. A.H., 8th Dist. No. 98622, 2613-Ohio-2525, ¶ 7.
Instead, we follow the standard of review set forth in R.C. 2953.08(G)(2), which provides
in relevant part:
The court hearing an appeal under division (A), (B), or (C) of this section
shall review the record, including the findings underlying the sentence or
modification given by the sentencing court.
The appellate court may increase, reduce, or otherwise modify a sentence
that is appealed under this section or may vacate the sentence and remand
the matter to the sentencing court for resentencing. The appellate court's
standard for review is not whether the sentencing court abused its
discretion. The appellate court may take any action authorized by this
division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court’s findings under
division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of
section 2929.14, or division (I) of section 2929.20 of the Revised Code,
whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶68} A sentence is not clearly and convincingly contrary to law where the trial
court considers the purposes and principles of sentencing under R.C. 2929.11 as well as
the seriousness and recidivism factors listed in R.C. 2929.12, properly applies postrelease
control and sentences a defendant within the permissible statutory range. A.H. at ¶ 10,
citing Kalish at ¶ 18.
{¶69} The record in the present instance reflects that the trial court did, in fact,
consider R.C. 2929.11 in sentencing appellant. The trial court’s September 11, 2012
journal entry clearly indicates that the court considered “all required factors of law.”
Furthermore, the sentencing transcript reflects that the trial court specifically considered
the principles and purposes of felony sentencing found in R.C. 2929.11. Appellant’s
argument that the trial court failed to consider R.C. 2929.11 is without merit.
{¶70} Appellant also contends that the trial court failed to make the necessary
findings pursuant to R.C. 2929.14(C)(4) before imposing consecutive prison terms at
sentencing. Am.Sub.H.B. No. 86, which became effective on September 30, 2011,
“revived” R.C. 2929.14(E)(4) and reinstated the requirement that trial courts make factual
findings on specified issues before imposing consecutive sentences. State v. Matthews,
8th Dist. No. 97916, 2012-Ohio-5174, ¶ 45.
{¶71} R.C. 2929.14(C)(4) 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 postrelease control for a prior offense.
(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.
A trial court is not required to use “talismanic words to comply with the
guidelines and factors for sentencing.” But it must be clear from the
record that the trial court actually made the findings required by statute. A
trial court satisfies this statutory requirement when the record reflects that
the court has engaged in the required analysis and has selected the
appropriate statutory criteria. (Citations omitted.)
Matthews at ¶ 48.
{¶72} The record in the present case does not reflect that the trial court made the
requisite findings pursuant to R.C. 2929.14(C)(4). Aside from a discussion of
appellant’s lengthy criminal history, the trial court made no reference or mention of the
findings necessary to support consecutive sentences. We find that the trial court erred in
imposing consecutive sentences without making the requisite findings.
{¶73} Appellant’s sixth assignment of error is overruled, in part, and sustained,
in part.
{¶74} Judgment affirmed, in part, and reversed, in part.
{¶75} We vacate one of the three convictions of anal rape as set forth in Counts
2, 3 and 4 because the state failed to present sufficient evidence to sustain one of those
convictions. We remand the case to the trial court for a hearing in which the court shall
determine which of Counts 2, 3 or 4 should be dismissed.
{¶76} Further, we remand this case for resentencing because the court failed to
make requisite findings pursuant to R.C. 2929.14(C)(4). Finally, the journal entry of
verdict and conviction incorrectly reflects a guilty verdict and conviction for breaking and
entering in violation of R.C. 2911.13 when, in fact, the appellant was found to be guilty
in Count 14 of the lesser offense of criminal trespass in violation of R.C. 2911.21(A)(1),
a misdemeanor of the fourth degree. Those journal entries must be corrected to
accurately reflect the crime for which appellant was found to be guilty.
{¶77} This cause is affirmed in part, reversed in part, and remanded to the lower
court for further proceedings consistent with this opinion.
It is ordered that appellant and appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
lower court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
LARRY A. JONES, SR., P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR