State v. McCoy , 2019 Ohio 868 ( 2019 )

[Cite as State v. McCoy, 2019-Ohio-868.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 107029
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
RAYSHAWN McCOY
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-16-610320-A
BEFORE: Yarbrough, J.,* Boyle, P.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: March 14, 2019
ATTORNEY FOR APPELLANT
Allison S. Breneman
1200 West 6th Street, Suite 203
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
Melissa Riley
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
STEPHEN A. YARBROUGH, J.:*
{¶1} An altercation that defendant-appellant Rayshawn McCoy had with his
victim-girlfriend turned into several hours of torture where he prevented her from leaving by
strangling her to the point that she lost consciousness. The matter proceeded to trial, and the
jury found McCoy guilty of one count of kidnapping. The issues on appeal concern the evidence
supporting the conviction, whether the court erred by refusing to sever the trial from charges
made by a different victim, preindictment delay, and the sentence.
I. Evidence of Kidnapping
{¶2} The first and second assignments of error complain about the weight and
sufficiency of the evidence supporting the kidnapping count.
{¶3} We review complaints about the sufficiency of the evidence supporting a conviction
by viewing the evidence in the light most favorable to the prosecution to determine whether any
“‘rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.’” State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, ¶ 34, quoting
Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
{¶4} The state charged McCoy with kidnapping in violation of R.C. 2905.01(A)(3). As
applicable here, that section states that no person, by force, shall restrain the liberty of the other
person by terrorizing or inflicting serious physical harm on another. In this context, to
“terrorize” someone is to “impress with terror, fear or to coerce by intimidation.” State v. Vigil,
8th Dist. Cuyahoga No. 103940, 2016-Ohio-7485, ¶ 22.
{¶5} The victim testified that McCoy, with whom she had been in a relationship, came to
her apartment in the evening. At some point, the two began arguing. The argument became
physical, with McCoy hitting and choking the victim. McCoy repeatedly placed his hand over
her mouth and nose in a way that impeded her ability to breathe and caused her to lose
consciousness. The victim testified that McCoy “smothered me so bad, and made me pass out
so bad, that my eyes bloodshotted over from a lack of oxygen.” The victim tried to move to
another room (the victim’s two children were asleep so she could not leave the apartment), but
McCoy would not permit it — she testified that “[h]e grabbed me and held me hostage.” When
the victim told McCoy that she needed to use the bathroom, he refused, causing her to soil
herself. He later relented and “dragged me in [the bathroom] and stood over me and wouldn’t
let me take off my clothes.” The victim eventually offered to have intercourse with McCoy, in
the hope that the act would calm him. However, McCoy failed to become aroused and in his
anger assaulted the victim again. He eventually fell asleep, holding the victim in a bear hug.
He left the following morning.
{¶6} This evidence that the victim tried to get away from McCoy, but that he continued to
smother and choke her into submission, was sufficient to prove the restraint element of
kidnapping. In addition, a rational trier of fact could find that McCoy terrorized the victim: first,
by repeatedly assaulting her and smothering her into unconsciousness and, second, by
humiliating her by denying her access to the bathroom and forcing her to remain in soiled
clothing.
{¶7} With respect to the claim that the kidnapping conviction is against the weight of the
evidence, McCoy’s sole argument is that the jury found him not guilty of two counts of rape,
three counts of gross sexual imposition, and one count of kidnapping charged in connection with
the events of that evening, so it could not have rationally found him guilty of a single count of
kidnapping.
{¶8} “Consistency in the verdict is not necessary. Each count in an indictment is
regarded as if it was a separate indictment.” Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct.
189, 76 L.Ed. 356 (1932). It is thus within the province of the trier of fact to determine issues of
credibility and the weight to be accorded that testimony with respect to each individual count.
State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. The
acts charged on those counts for which the jury returned a verdict of not guilty were different in
kind from the acts detailed in the kidnapping count. Because the facts of the kidnapping stand
alone, there was no apparent inconsistency in the verdict. We thus have no basis for finding that
the jury lost its way by finding McCoy guilty of kidnapping.
II. Motion to Sever
{¶9} The indictment originally charged McCoy with acts committed against two victims
almost two years apart: Jane Doe 1 (the victim in the instant case) and Jane Doe 2. McCoy filed
a motion seeking a separate trial for each victim, but the court denied the motion.
{¶10} Two or more offenses may be charged in the same indictment if the offenses
charged are of similar character or are based on the same transaction, or are part of a course of
criminal conduct. See Crim.R. 8(A). The law favors joinder of offenses as “avoiding
duplication inherent in multiple trials and minimizes the possibility of incongruous results that
can occur in successive trials before different juries.” State v. Hamblin, 37 Ohio St.3d 153,
157-158, 524 N.E.2d 476 (1988). Nevertheless, if the defendant can show prejudice from the
joinder of offenses — the denial of a fair trial — the court, upon motion, shall order a separate
trial. See Crim.R. 14; State v. Clinton, 153 Ohio St.3d 422, 2017-Ohio-9423, 108 N.E.3d 1, ¶
44.
{¶11} McCoy can show no prejudice from joinder because the jury acquitted him of all
counts relating to Jane Doe 2. This showed that the jury was able to differentiate the evidence
between the two Jane Does and did not improperly use evidence of guilt with respect to one
victim as proof of guilty going to the other victim. See Evid.R. 52(A); United States v. Edgar,
82 F.3d 499, 504 (1st Cir.1996) (applying similar federal rules). McCoy was not denied a fair
trial.
III. Preindictment Delay
{¶12} The kidnapping occurred in October 2007. The police investigated, but later
dropped the investigation when the victim stated that she did not wish to pursue charges against
McCoy, with whom she had reconciled. Nevertheless, DNA swabs were taken by medical
personnel who administered a rape kit at the time and, some ten years later, the rape kit was
tested and identified McCoy. The victim then agreed to prosecute. McCoy asked the court to
dismiss the indictment on grounds of preindictment delay, arguing that he suffered actual
prejudice from the delay because “he may have fact witnesses who would have been able to
verify that the stories provided were fabricated” and “the cell phone records that would have been
available during this period of time would have demonstrated and the text messages would have
demonstrated what this dispute was about.” The court found no prejudice and denied the motion
to dismiss.
{¶13} The defendant bears the initial burden of presenting evidence of actual prejudice
sufficient to warrant dismissal on grounds of preindictment delay. State v. Jones, 148 Ohio
St.3d 167, 2016-Ohio-5105, 69 N.E.3d 688, ¶ 13. Actual prejudice is “error, the absence of
which would have led to a reasonable probability that the outcome of the proceeding would have
been different.” State v. Owens, 8th Dist. Cuyahoga No. 102276, 2015-Ohio-3881, ¶ 4. “Once
a defendant presents evidence of actual prejudice, the burden shifts to the state to produce
evidence of a justifiable reason for the delay.” Id. If the defendant fails to establish actual
prejudice, the court is not required to consider the reasons for the delay. State v. Adams, 144
Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 107.
{¶14} McCoy did not show actual prejudice — he relied on speculation. For example,
he did not name any witnesses who would verify his claim that the victim fabricated her
accusation; instead, he gave the names of three people who he said witnessed an argument
between he and the victim (McCoy was apparently dating another woman) and who “would have
been able to testify that they heard the nature of the argument, itself, which would give rise to the
motivation for which this charge was lodged.” But having knowledge of why the argument
occurred would not have refuted the victim’s testimony of what happened inside the apartment
between McCoy and the victim. Even if McCoy were blameless and the victim started the fight,
that fact would not excuse his criminal actions inside the apartment. And McCoy offered
nothing to show that any of the three people were actually present when the criminal acts
occurred. This failed to demonstrate “a viable, tangible connection between the missing
evidence or the unavailable witness to the defense of the case.” State v. Walker, 8th Dist.
Cuyahoga No. 106414, 2018-Ohio-3669, ¶ 22, citing State v. Richardson, 2016-Ohio-5843, 70
N.E.3d 1175, ¶ 13 (8th Dist.).
{¶15} We reach a similar conclusion with respect to the cell phone records. McCoy did
not state when the text messages were sent — he claimed only that the text messages would have
explained a possible motivation for the victim to fabricate her allegations against him. But no
matter what the text messages might have shown about the origin of the dispute between McCoy
and the victim, they would have been irrelevant to justify McCoy’s criminal actions inside the
apartment. Having failed to establish actual prejudice, McCoy failed to carry his burden of
establishing preindictment delay.
IV. Sexual Motivation Specification
{¶16} In its sentencing entry, the court stated that the jury found McCoy guilty of
kidnapping with a sexual motivation specification. In fact, the jury found McCoy not guilty of
the sexual motivation specification. The state concedes that the court erred in this respect. We
agree and sustain this assignment of error and remand with instructions for the court to amend its
sentencing entry.
V. Sentence
{¶17} The court sentenced McCoy to ten years in prison which, at the time he committed
his crime in October 2007, was the maximum sentence for a felony of the first degree (the current
maximum for a felony of the first degree is 11 years). McCoy complains that the court failed to
appropriately apply the serious and recidivism factors necessary to impose a sentence of that
length and that he should have received a minimum sentence.
{¶18} A trial judge must do two things before imposing sentencing: first, the judge must
ensure that the sentence falls within the applicable statutory range for a particular degree of
felony; second, the judge must consider the purposes of felony sentencing set forth in R.C.
2929.11 and the applicable seriousness and recidivism factors contained in R.C. 2929.12. State
v. Glenn, 8th Dist. Cuyahoga No. 100726, 2014-Ohio-4084, ¶ 3-5. McCoy’s sentence fell
within the applicable statutory range, and the court stated that it considered all required factors of
the law. It thus fulfilled its legal obligations.
{¶19} What McCoy really argues is that his sentence is too long and that he should have
received the statutory minimum sentence. The law is clear, however, that a trial court has full
discretion to impose any term of imprisonment within the statutory range, as long as it considers
the sentencing purposes in R.C. 2929.11 and the guidelines contained in R.C. 2929.12. State v.
Ray, 8th Dist. Cuyahoga No. 101142, 2014-Ohio-4689, ¶ 14, citing State v. Holmes, 8th Dist.
Cuyahoga No. 99783, 2014-Ohio-603, ¶ 8. The only way for us to reverse or modify the
sentence is if we can determine, by clear and convincing evidence, that the record does not
support the trial court’s sentence. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59
N.E.3d 1231, ¶ 21. In making this determination, we acknowledge that how a sentencing judge
decides to weigh and apply those factors to a particular case is an exercise of discretion. State v.
Rahab, 150 Ohio St.3d 152, 2017-Ohio-1401, 80 N.E.3d 431, ¶ 10; State v. Anderson, 8th Dist.
Cuyahoga No. 103490, 2016-Ohio-3323, ¶ 9. We cannot substitute our judgment for that of the
sentencing judge. State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 20 (8th Dist.).
{¶20} The remarks made by the court at sentencing showed that it specifically considered
the violence of the acts charged in the case, McCoy’s prior history of criminal conduct, his
repeated failures to comply with postrelease control (some of which were in cases presided by the
trial judge), the seriousness of the acts committed against the victim, and his lack of remorse.
For his part, McCoy offered nothing of any substance in mitigation apart from apologizing to the
victim for “any of the abuse or the arguments or the things that we went through that were not
documented in the courts.” On this record, we cannot clearly and convincingly find that the
record does not support the sentence.
{¶21} Judgment affirmed in part, reversed in part, and remanded
to the trial 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 trial court to carry
this judgment into execution. The defendant’s conviction having been affirmed, any bail
pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
______________________________________________
*STEPHEN A. YARBROUGH, JUDGE
MARY J. BOYLE, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
*(Sitting by Assignment: Judge Stephen A. Yarbrough, retired, of the Sixth District Court of
Appeals).