State v. Sylvester , 2016 Ohio 5710 ( 2016 )

[Cite as State v. Sylvester, 2016-Ohio-5710.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 103841
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
TRAVIS SYLVESTER
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-14-588482-A
BEFORE: Stewart, P.J., Boyle, J., and Blackmon, J.
RELEASED AND JOURNALIZED: September 8, 2016
ATTORNEY FOR APPELLANT
P. Andrew Baker
11510 Buckeye Road
Cleveland, OH 44104
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
John Patrick Colan
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
MELODY J. STEWART, P.J.:
{¶1} A jury found defendant-appellant Travis Sylvester guilty of counts of rape,
gross sexual imposition, and kidnapping — offenses committed against two of his
girlfriend’s children with whom he lived and who were less than ten years of age at the
time of the crimes. The 11 assignments of error raised in this appeal broadly challenge
the evidence supporting his guilt, trial errors committed by the court and counsel, and
sentencing. We find no error and affirm.
I. Evidentiary Issues
{¶2} Issues raising the sufficiency of the evidence are potentially dispositive — if
found to have merit, they would result in acquittal — so we first address Sylvester’s
assignments of error that challenge the sufficiency of the evidence. In his ninth
assignment of error, Sylvester argues that the convictions for gross sexual imposition
committed against each victim were not based on legally sufficient evidence; in his third
assignment of error, he argues that the court had insufficient evidence to find him guilty
of a sexual motivation specification; in his seventh assignment of error, he argues that the
state failed to offer evidence of venue.
{¶3} “Sufficiency review essentially addresses whether ‘the government’s case
was so lacking that it should not have even been submitted to the jury.’” Musacchio v.
United States, 577 U.S.___, 136 S.Ct. 709, 715, 193 L.Ed.2d 639 (2016), quoting Burks v.
United States, 437 U.S. 1, 16, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) (emphasis deleted).
The Due Process Clause of the United States Constitution requires criminal convictions to
be based on legally sufficient evidence. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979). The evidence is considered “legally sufficient” if, after
viewing the evidence most favorably to the state, “any rational trier of fact could have
found the essential elements of the crime proven beyond a reasonable doubt.” State v.
Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. This is
a quantitative standard of evidence that looks only at whether any rational trier of fact
could find that the evidence existed; in other words, did the state offer any evidence going
to each essential element of the offense. State v. Thompkins, 78 Ohio St.3d 380, 386,
678 N.E.2d 541 (1997). If so, the evidence is legally sufficient for purposes of the Due
Process Clause. The sufficiency of the evidence standard requires great deference to the
trier of fact. A reviewing court “faced with a record of historical facts that supports
conflicting inferences must presume — even if it does not affirmatively appear in the
record — that the trier of fact resolved any such conflicts in favor of the prosecution, and
must defer to that resolution.” Cavazos v. Smith, 565 U.S. 1, 132 S.Ct. 2, 181 L.Ed.2d
311 (2011), quoting Jackson at 326.
{¶4} In his ninth assignment of error, Sylvester complains that the state failed to
offer evidence sufficient to prove the offense of gross sexual imposition as charged in
Counts 5 and 12 of the indictment. With respect to Count 5, he maintains that the
victim’s testimony that he “humped” her did not establish the elements of gross sexual
imposition.
{¶5} Count 5 of the indictment charged Sylvester with gross sexual imposition
under R.C. 2907.05(A)(4): no person shall have sexual contact with another when the
other person is less than 13 years of age. “Sexual contact” is defined in R.C. 2907.01(B)
as “any touching of an erogenous zone of another, including without limitation the thigh,
genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of
sexually arousing or gratifying either person.”
{¶6} Victim J.D. testified that on the first occasion when Sylvester assaulted her,
he “he humped me and put his penis in my mouth.” When asked what she meant by
“humped,” she testified, “Like he — he will take off his pants. He will pull my pants all
the way down, and he will start humping me” to the point where she felt “[s]omething
going inside my body.” J.D. went on to testify that Sylvester again “humped” her in a
hotel room and again on August 18, 2014, the day after she reported his acts to her
mother.
{¶7} The circumstances described by J.D. could cause a rational trier of fact to
conclude that Sylvester’s actions were directed towards J.D.’s erogenous zone for his own
sexual gratification. J.D.’s testimony showed that the word “hump” was used as a term
for simulated sexual intercourse or copulation. She testified that Sylvester ground his
penis against her buttocks. Sylvester himself admitted in a police interview that he
masturbated and ejaculated onto J.D.’s back. This was sufficient evidence to establish
the elements of gross sexual imposition.
{¶8} Sylvester next argues that the state failed to offer sufficient evidence of gross
sexual imposition with respect to Count 12 and victim J.B. He maintains that J.B.
testified to conduct that might have established rape, but he was acquitted of the rape
charge against that victim and no lesser included offense instruction on gross sexual
imposition was given to the jury.
{¶9} Like Count 5, Count 12 charged gross sexual imposition under R.C.
2907.05(A)(4). J.B. testified that Sylvester put his penis “in my mouth and my bottom.”
Even if the jury did find Sylvester not guilty of rape based on J.B.’s testimony, a rational
trier of fact could find testimony showing that Sylvester put his penis in J.B.’s “bottom”
established that he touched her erogenous zone for purposes of sexual gratification.
{¶10} Sylvester elected to try certain sexually violent predator specifications to the
court and was found guilty on all. In his third assignment of error, he complains that
there was insufficient evidence that he was likely to commit sex crimes in the future.
{¶11} If an offender is charged with a violent sex offense, the indictment may
contain a specification that the offender is a sexually violent predator. See R.C.
2941.148(A). Under R.C. 2971.01(H), a “sexually violent predator” means a person who
“commits a sexually violent offense and is likely to engage in the future in one or more
sexually violent offenses.” The offenses of rape under R.C. 2907.02 and gross sexual
imposition under R.C. 2907.05(A)(4) are considered “violent sex offenses.” See R.C.
2971.01(L)(1).
{¶12} Having been duly convicted of rape and gross sexual imposition, the only
question before the court on the sexual violent predator specification was whether
Sylvester was likely to engage in the future in one or more sexually violent offenses.
The court can find guidance on that question from the non-exclusive list of factors set
forth in R.C. 2971.01(H)(2).
{¶13} Sylvester argues that none of the R.C. 2971.01(H)(2) factors are present and
that the court essentially found him guilty of the specification solely based on the
underlying charges. While it is true that none of the express factors of R.C.
2971.01(H)(2) are applicable, the state pointed to statements Sylvester made during his
police interview that would fall within the “any other relevant evidence” catchall
provision of R.C. 2971.01(H)(2)(f). Significantly, Sylvester admitted that he was unable
to control his sexual impulses when around “women.” He testified that at the time he
committed the offenses, he was in a relationship with the victims’ mother and was
“dating” three or four other women. While infidelity is not an indication that an offender
will engage in future sexually violent offenses, Sylvester appeared to concede that he had
an uncontrollable sexual impulse. He gave in to that impulse over a lengthy period of
time in which he raped and masturbated on two children under the age of ten. That was
compelling evidence to support a finding that Sylvester was likely to engage in one or
more sexually oriented offenses in the future.
{¶14} Sylvester’s seventh assignment of error is that the state failed to prove venue
for Counts 2 and 5. J.D. testified that the events relating to those counts occurred in a
hotel room when she and her family “were out of town to see my uncle.” Sylvester
argues that the state failed to prove the location of the “out of town” hotel, so it did not
establish venue for those counts beyond a reasonable doubt.
{¶15} In State v. Jackson, 141 Ohio St.3d 171, 2014-Ohio-3707, 23 N.E.3d 1023,
the Ohio Supreme Court stated:
Venue is not a material element of any offense charged. State v. Smith, 87
Ohio St.3d 424, 435, 2000 Ohio 450, 721 N.E.2d 93 (2000), citing State v.
Headley, 6 Ohio St.3d 475, 477, 6 Ohio B. 526, 453 N.E.2d 716 (1983).
The elements of the offense charged and the venue of the matter are
separate and distinct. State v. Draggo, 65 Ohio St.2d 88, 90, 418 N.E.2d
1343 (1981). Nevertheless, venue is a fact that must be proved beyond a
reasonable doubt unless it is waived by the defendant. Headley at 477.
Id. at ¶ 143.
{¶16} Sylvester did not object to venue at trial, so he forfeited all but plain error.
Id. at ¶ 142. No plain error is shown. As the state notes, R.C. 2901.12(H) states that
when an offender, as part of a course of criminal conduct, commits offenses in different
jurisdictions, “the offender may be tried for all of those offenses in any jurisdiction in
which one of those offenses or any element of one of those offenses occurred.”
{¶17} The evidence showed that despite there being only three separately charged
instances of sexual assault, the two victims collectively testified that Sylvester assaulted
them many times. This established a criminal course of conduct. In addition, the
offenses involved the same victims and were committed as part of Sylvester’s relationship
to the victims. There is no question that some of the assaults occurred in Cuyahoga
County, so the possibility that some of the assaults may have occurred in a different
location does not defeat venue. See State v. Fowler, 27 Ohio App.3d 149, 154, 500
N.E.2d 390 (8th Dist.1985).
{¶18} Sylvester’s eighth assignment of error is that the jury’s guilty verdicts were
against the manifest weight of the evidence. He argues that the physical evidence against
him was “far from overwhelming” and that his inability to remain monogamous during
his relationship with the victims’ mother allowed the mother to persuade the victims to
make false accusations against him.
{¶19} The manifest weight of the evidence standard of review requires us to
review the entire record, weigh the evidence and all reasonable inferences, consider the
credibility of 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
conviction must be reversed and a new trial ordered. State v. Otten, 33 Ohio App.3d
339, 340, 515 N.E.2d 1009 (9th Dist.1986). The use of the word “manifest” means that
the trier-of-fact’s decision must be plainly or obviously contrary to all of the evidence.
This is a difficult burden for an appellant to overcome because the resolution of factual
issues resides with the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212(1967), paragraph one of the syllabus. The trier of fact has the authority to “believe or
disbelieve any witness or accept part of what a witness says and reject the rest.” State v.
Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964).
{¶20} Although the state did not offer a lot of physical evidence, what it did offer
was compelling: the underwear that J.D. was wearing when she told her mother that she
had just been sexually assaulted by Sylvester contained his DNA on the back panel.
Sylvester argues that it was likely that his DNA found its way onto J.D.’s underwear
because the underwear was in the same laundry basket as his soiled clothing. The jury
rejected that theory, no doubt because the location of his DNA was consistent with J.D.’s
testimony that Sylvester put his penis in her bottom. And consistent with the DNA
evidence, examinations of both girls showed that they had recent or “fresh” anal tearing
consistent with an external source of injury.
{¶21} In addition to the DNA evidence, Sylvester admitted that he told both a
police detective and the victims’ mother that he “jerked off” on J.D.’s back. What is
more, he admitted in his police interview that he would “always” get an erection from any
woman he saw and that he was “out of control” when he became aroused. He told the
police that he had a great life but threw it all away for a “nut.” The shocking nature of
Sylvester’s offenses were entirely consistent with these admitted sexual impulses.
{¶22} The jury did not lose it way by finding Sylvester guilty.
II. Trial Errors
{¶23} We have grouped the following arguments under the heading of trial errors:
that defense counsel was ineffective; that the court erred by allowing the state to amend
the indictment; that jury instructions on kidnapping were defective; and that the court
erred by allowing a substitute judge to accept the jury’s verdict.
{¶24} The fifth assignment of error complains that the court erred by allowing the
state to amend the sexually violent predator specifications to change the ages of the
children from “under thirteen years of age but ten years of age or older at the time of the
commission of the offense” to conform to trial evidence showing that both victims were
less than ten years of age. Sylvester argues that this changed the punishment for the
offense because the sexually violent predator specification required the court to impose a
penalty of life in prison without parole.
{¶25} The age range specified in the indictment was indisputably a clerical error.
This was so not only because the indictment also contained the dates of birth for both
victims, but because both victims gave testimony confirming that their dates of birth were
correctly stated in the indictment. Defense counsel had no objection to the amendment.
Crim.R. 7(D) allows the court to amend an indictment with respect to any variance with
the evidence, provided no change is made in the name or identity of the crime charged.
The court’s decision to allow an amendment to the specifications simply corrected the
error in the indictment. State v. Baer, 7th Dist. Harrison No. 07 HA 8, 2009-Ohio-3248,
¶ 23.
{¶26} The fourth assignment of error is that defense counsel was ineffective for
agreeing to the amendment of the indictment. We summarily overrule this assignment of
error because defense counsel did not violate any essential duty by not objecting to the
amendment. In discussions relating to his rejection of plea offers made by the state,
Sylvester was told several times that he faced a life sentence without the possibility of
parole. See tr. 19, 21, 53, 63. With all parties understanding that the indictment charged
offenses against victims who were less than ten years of age, counsel did nothing more
than concede a clear, clerical error.
{¶27} The tenth and eleventh assignments of error relate to the jury instructions on
kidnapping.
{¶28} Counts 8 and 15 charged Sylvester with kidnapping under R.C.
2905.01(A)(4). That section states that no person shall by force, threat, or deception
purposely remove or restrain the liberty of another for purpose of engaging in sexual
activity with the person against the person’s will. Both counts contained furthermore
clauses stating that the victim of each offense was under 18 years of age. The verdict
forms submitted to the jury required it to find as a matter of fact whether each victim was
less than 18 years of age.
{¶29} Sylvester argues that the jury’s finding that both victims were less than 18
years of age was irrelevant to a finding that the victims were less than ten years of age at
the time he is alleged to have committed his offenses. Why this should matter is not
clear. The jury’s finding that the victims were under the age of 18 at the time of
Sylvester’s offenses did not preclude the court’s independent verdict on the sexually
violent predator specification that the victims were in fact less than ten years of age at the
time of the offenses. And for purposes of the sexually violent predator specification, the
court’s determination that the victims were under the age of ten was all that mattered
given that Sylvester agreed to waive a trial by jury on those specifications and have the
judge hear them. It was entirely consistent for the jury to find that the victims were less
than 18 years of age and for the court to make a second finding that the victims were also
less than ten years of age. In any event, the jury verdict forms for the rape counts listed
the date of birth for both victims and the jury returned verdicts affirming those dates of
birth. No plain error is shown on the record.
{¶30} In addition, we disabuse Sylvester of the idea that the sexually violent
predator specification somehow changed the degree of the felony for the kidnapping
counts. Those counts were charged as first-degree felonies and remained so regardless
of the specifications — a first-degree felony is the highest degree of felony, so the
specifications charged in this case could not change that fact. A guilty finding on the
specifications only enhanced the penalty; it did not change the degree of the offense.
State v. Hamm, 8th Dist. Cuyahoga No. 103230, 2016-Ohio-2938, ¶ 7.
{¶31} When the jury returned to deliver its verdict, the judge presiding over the
trial was unavailable, so a different judge accepted the jury’s verdict. Sylvester did not
object to this procedure, so he forfeited the claim for appellate review. State v.
Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 15.
{¶32} Sylvester now argues in his first assignment of error that it was plain error
for the substitute judge to take the jury’s verdict in the absence of a record to show that
the judge had been properly selected by the administrative judge of the court of common
pleas. Sylvester has done nothing to show that he suffered any prejudice — the
substitute judge did nothing more than receive the jury’s verdict and set the matter for
sentencing before the assigned judge. Sylvester’s arguments rely on speculation as to
what might have happened had the jury posed any questions to a substitute judge whose
unfamiliarity with the case would leave the substitute judge unprepared to answer those
questions. The jury asked no questions of the substitute judge, so Sylvester’s arguments
are moot. In any event, speculation does not show plain error. State v. Frazier, 115
Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, ¶ 108.
III. Sentencing Issues
{¶33} The last category of error claimed by Sylvester relates to sentencing: the
second assignment of error complains that the court erred by refusing to find some of the
offenses were allied and should merge for sentencing; the sixth assignment of error
complains that the court erred by ordering consecutive service of some of his sentences.
{¶34} A defendant cannot be convicted of more than one allied offense of similar
import. R.C. 2941.25(A). We determine whether offenses are allied offenses of similar
import within the meaning of R.C. 2941.25 by evaluating three separate factors: “the
conduct, the animus, and the import.” State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995,
34 N.E.3d 892, paragraph one of the syllabus.
[A] defendant whose conduct supports multiple offenses may be convicted
of all the offenses if any one of the following is true: (1) the conduct
constitutes offenses of dissimilar import, (2) the conduct shows that the
offenses were committed separately, or (3) the conduct shows that the
offenses were committed with separate animus.
Id. at paragraph three of the syllabus.
{¶35} In his second assignment of error, Sylvester complains that the court should
have merged Counts 1 (rape) and 8 (kidnapping) for sentencing. J.D. testified that the
events giving rise to these counts arose when Sylvester “forced me to go in my mom’s
room, and I didn’t want to, so he dragged me to my mom’s room.” She explained that
Sylvester forced her to the room as follows: “Like he pushed me by my back. And a
couple of times I had fell and then he pushed me to my mom’s room.” J.D.’s testimony
showed that the force Sylvester applied to drag her into her mother’s room was different
from the rape itself, which consisted of his undressing her and putting his penis in her
mouth. Under the second prong of the Ruff analysis, the kidnapping was committed
separately from the rape.
{¶36} Sylvester also argues that Count 1 (rape) and Count 4 (gross sexual
imposition) should have merged for sentencing. The evidence showed that the rape
consisted of Sylvester putting his penis in J.D.’s mouth; the gross sexual imposition
consisted of him rubbing his penis between her buttocks. We agree that these were
separately committed offenses that do not merge.
{¶37} Finally, Sylvester argues that Count 12 (gross sexual imposition) and Count
15 (kidnapping) committed against J.B. should merge. J.B. testified that Sylvester “told
me to come here, so I can go in the room.” She complied and agreed that his sexual
assaults “happened in the room.” The state argues that Sylvester forced her into the
room by intimidation — the evidence showed that Sylvester not only lived with the
children, but disciplined them for disobedience. J.B. testified that Sylvester had
“whopped” her before and that she capitulated to his order to go into the bedroom,
stating, “I don’t know what he would do to me if I didn’t go so — I was scared.”
Although Sylvester’s demand to J.B. did not involve the kind of overt force that J.D.
experienced, J.B. was under compulsion to comply given Sylvester’s position of authority
over her and the corporal punishment she might receive if she did not obey. That
compulsion was enough to establish her kidnapping as conduct committed separately
from the gross sexual imposition.
{¶38} The sixth assignment of error is that the court’s sentencing entry imposed
consecutive sentences but that it never advised Sylvester during sentencing exactly which
counts would be served consecutively.
{¶39} The court imposed the following sentences: Count 1, life without parole;
Count 4, five years to life; Count 5, five years to life; Count 8, 15 years to life; Count 12,
five years to life; and Count 15, 15 years to life. The court made the requisite findings
for imposing consecutive sentences under R.C. 2929.14(C)(4), but did not indicate what
sentences were to be served consecutively. In the sentencing entry, the court ordered that
Counts 1, 4, 5, and 8 be served concurrently; that Counts 12 and 15 be served
concurrently; but that Counts 1, 4, 5, and 8 be served consecutively to Counts 12 and 15.
{¶40} Sylvester did not object to his sentences at trial. By failing to object to the
imposition of his consecutive sentences, he forfeited this issue, absent plain error. State
v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 152, citing State v.
Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 377.
{¶41} “Appellate courts have discretion to correct ‘[p]lain errors or defects
affecting substantial rights[.]’” In re A.G., Slip Opinion No. 2016-Ohio-3306, ¶ 19,
quoting Crim.R. 52(B). In so exercising that discretion, we do so “with the utmost
caution, under exceptional circumstances and only to prevent a manifest miscarriage of
justice.” State v. Long, 53 Ohio St.2d 91, 93, 372 N.E.2d 804 (1978), paragraph two of
the syllabus.
{¶42} Sylvester cites no precedent to support his claim of error and, in fact,
precedent contrary to his position exists. See State v. Evans, 4th Dist. Scioto No. 1675,
1988 Ohio App. LEXIS 1315, at *5 (Apr. 5, 1988). Even if we assume without deciding
that the court’s failure to specifically state at sentencing which counts were to be served
consecutively was error, Sylvester did not suffer any prejudice from the error. He
received a mandatory sentence of life in prison without the possibility of parole — any
consecutive sentences were subsumed under the sentence of life without the possibility of
parole. He will serve no additional time, so a remand would be pointless. There is no
manifest miscarriage of justice to cause us to find plain error and reverse.
{¶43} Judgment affirmed.
It is ordered that appellee recover of appellant 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 common
pleas 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.
______________________________________________
MELODY J. STEWART, PRESIDING JUDGE
MARY J. BOYLE, J., and
PATRICIA ANN BLACKMON, J., CONCUR