State v. West ( 2012 )

[Cite as State v. West, 2012-Ohio-3151.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95331
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
TERRELL WEST
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-484530
BEFORE: Cooney, J., Stewart, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: July 12, 2012
ATTORNEY FOR APPELLANT
Tyresha Brown-O’Neal
Brown-O’Neal Law
420 Lakeside Place
323 Lakeside Avenue, West
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Ronni Ducoff
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
COLLEEN CONWAY COONEY, J.:
{¶1} Defendant-appellant, Terrell West (“West”), appeals his convictions and
sentence for five counts of rape and kidnapping, and one count of gross sexual
imposition. We find no merit to the appeal and affirm.
{¶2} In August 2006, West was charged with multiple counts of rape,
kidnapping, felonious assault, and gross sexual imposition involving his minor cousin,
K.R. The original indictment alleged that the offenses occurred between September
1998 and June 2004. However, K.R., who was less than 13 years of age at the time the
offenses were committed, did not report the crimes until several years later.
{¶3} The case first proceeded to a jury trial in 2007. The court granted West’s
motion for acquittal on the one count of felonious assault, and the jury returned guilty
verdicts on all remaining counts, including attendant sexual motivation and force
specifications. The court sentenced West to life imprisonment on all the rape counts, to
be served concurrently. The court also ordered all other sentences to run concurrent to
the life sentences. This court reversed West’s convictions and remanded the case for a
new trial. State v. West, 8th Dist. No. 90198, 2008-Ohio-5249. The second trial
resulted in a hung jury, and the trial court declared a mistrial.
{¶4} Prior to the third trial, the State moved to amend the dates contained in the
indictment to conform with the testimony presented in the first two trials. The State did
not present any new evidence to the grand jury for the proposed amendments, and over
defense counsel’s objection, the trial court allowed the indictment to be amended.
Following the third trial, the jury returned guilty verdicts on five counts of rape, five
counts of kidnapping, and one count of gross sexual imposition. The court sentenced
West to life imprisonment on all rape counts to be served consecutively. The court
merged the remaining counts for kidnapping and gross sexual imposition as allied
offenses and classified West as a Tier III sex offender. West now appeals, raising seven
assignments of error.
Amended Indictment
{¶5} In his first assignment of error, West contends the trial court erred by
allowing the State to amend the range of dates contained in the indictment to conform to
the testimony presented in the prior trials. West contends the amendments constituted
more than just the correction of dates. He claims the amendments should have been
presented with evidence to a grand jury.
{¶6} The government must aver all material facts constituting the essential
elements of the offense so that the accused not only has adequate notice and an
opportunity to defend, but also to protect himself from any future prosecution for the
same offenses. State v. Sellards, 17 Ohio St.3d 169, 170, 478 N.E.2d 781 (1985). An
indictment is sufficient if it (1) contains the elements of the charged offense, (2) gives the
defendant adequate notice of the charges, and (3) protects the defendant against double
jeopardy. Hamling v. United States, 418 U.S. 87, 117-118, 94 S.Ct. 2887, 41 L.Ed.2d
590 (1974).
{¶7} Crim.R. 7(D) allows a trial court to amend an indictment “at any time,” as
long as “no change is made in the name or identity of the crime charged.” Under R.C.
2941.08, an indictment is valid even if it states the time imperfectly or omits the time, if
time is not an essential element of the offense. R.C. 2941.08(B) and (C). The Ohio
Supreme Court has specifically held that precise dates or times are not essential elements
of offenses. Sellards at 170.
{¶8} This court has previously noted that, in cases involving sexual abuse against
children, indictments need not state the dates of the alleged abuse with specificity, as long
as the prosecution establishes that the offenses occurred within the time frame alleged.
State v. Coles, 8th Dist. No. 90330, 2008-Ohio-5129, ¶ 33, citing State v. Yaacov, 8th
Dist. No. 86674, 2006-Ohio-5321, ¶ 17. Courts make allowances in cases in which the
child-victim cannot be expected to remember exact dates and times, and in which the
child-victim and alleged perpetrator are related, and the course of conduct may have
occurred over a period of time. Id., State v. Robinette, 5th Dist. No. CA-652, 1987 WL
7153 (Feb. 27, 1987).
{¶9} The amendments to the indictments in this case did not change the name or
identity of the crimes charged. West was charged with rape, kidnapping, and gross
sexual imposition. The amended indictment did not change that fact. The original
indictment alleged that the crimes occurred from September 1, 1998 until June 1, 2004.
The amended indictment alleged that the offenses occurred from June 2000 until June
2004. The amendment shortened the range of time in which the alleged offenses
occurred, and remained within the range of time alleged in the original indictment, thus
causing no prejudice or surprise to West.
{¶10} We review the trial court’s decision to permit the amendment of an
indictment for an abuse of discretion. State v. Beach, 148 Ohio App.3d 181, 772 N.E.2d
677, 2002-Ohio-2759, at ¶ 23. Because the amendments did not change the identities of
the crimes charged but rather narrowed the range of time in which the alleged crimes
were committed, we find no abuse of discretion.
{¶11} Accordingly, the first assignment of error is overruled.
Victim’s Credibility
{¶12} In his second assignment of error, West argues the trial court erred by
allowing Laura McAliley (“McAliley”), a nurse practitioner, to provide an explanation as
to why children often delay their disclosures of sexual abuse. West claims the testimony
was offered for the sole purpose of improperly bolstering the victim’s credibility.
{¶13} We review trial court decisions to admit or exclude evidence for abuse of
discretion. Krischbaum v. Dillon, 58 Ohio St.3d 58, 66, 567 N.E.2d 1291 (1991). In
State v. Boston, 46 Ohio St.3d 108, 545 N.E.2d 1220 (1989), the Ohio Supreme Court
held that an expert may not offer an opinion on the veracity of a victim’s statement. Id.at syllabus. However, the expert may offer testimony that provides additional support
for the truth of the facts testified to by the child, or which assists the trier of fact in
assessing the child’s veracity. State v. Stowers, 81 Ohio St.3d 260, 262, 690 N.E.2d 881(1998).
{¶14} In Stowers, a child psychologist and expert in child abuse cases testified that
the victims’ behavior in that case was consistent with behavior of other sexually abused
children she had examined. Id. The defendant claimed the expert improperly bolstered
the victims’ credibility in violation of Boston. In rejecting that argument, the court stated
that the defendant “fail[ed] to distinguish between expert testimony that a child witness is
telling the truth and evidence which bolsters a child’s credibility insofar as it supports the
prosecution’s efforts to prove that a child has been abused.” (Emphasis sic.) Id. The
court further explained
Such testimony is permitted to counterbalance the trier of fact’s natural
tendency to assess recantation and delayed disclosure as weighing against
the believability and truthfulness of the witness. This testimony “does not
usurp the role of the jury, but rather gives information to a jury which helps
it make an educated determination.”
Id. at 263, quoting State v. Gersin, 76 Ohio St.3d 491, 494, 668 N.E.2d 486 (1996).
{¶15} McAliley never offered an opinion on K.R.’s truthfulness. She testified
that in her experience examining approximately 1,500 child abuse victims, only five to
ten of the victims showed physical evidence of anal penetration. She explained the
number of victims showing signs of abuse is so low because anal injuries heal quickly and
children tend to delay their disclosure of abuse. This testimony did not usurp the jury’s
role in assessing the victim’s credibility but provided the jury information that would
assist them in making an educated determination. Therefore, we find no abuse of
discretion.
{¶16} The second assignment of error is overruled.
Sufficiency and Manifest Weight of the Evidence
{¶17} In his third assignment of error, West argues there was insufficient evidence
to support his convictions and that his convictions were against the manifest weight of the
evidence. We disagree.
{¶18} The test for sufficiency requires a determination of whether the prosecution
met its burden of production at trial. State v. Thompkins, 78 Ohio St.3d 380, 390,
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. State v.
Jenks, 61 Ohio St.3d 259, 574 N.E.2d 942 (1991), paragraph two of the syllabus.
{¶19} A challenge to the manifest weight of the evidence attacks the verdict in
light of the State’s burden of proof beyond a reasonable doubt. Thompkins at 386-387. 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. at 387. A finding that a conviction was
supported by the manifest weight of the evidence necessarily includes a finding of
sufficiency. Id. at 388.
{¶20} West argues the evidence was inadequate because K.R. admitted mistakes
and “deliberate falsehoods” in his previous statements to police and during the previous
trials. West asserts that the amended indictment and the admission of McAliley’s
testimony regarding delayed disclosure of child sexual abuse unfairly bolstered his
testimony. However, as previously stated, the indictment was lawfully amended and
the jury was aware that K.R. had testified differently in the previous trials. McAliley’s
testimony did not usurp the jury’s function in assessing K.R.’s credibility, and K.R. was
subjected to cross-examination regarding the dates of the alleged abuse.
{¶21} Moreover, the record is replete with evidence establishing proof of every
element of the offenses of which West was convicted. West was convicted of five
counts of rape under R.C. 2907.02(A)(1)(b), one count of gross sexual imposition under
R.C. 2907.05(A)(4), and four counts of kidnapping in violation of R.C. 2905.01(A)(4).
R.C. 2907.02(A)(1)(b) provides: “[n]o person shall engage in sexual conduct with another
who is not the spouse of the offender * * * when * * * [t]he other person is less than
thirteen years of age, whether or not the offender knows the age of the other person.”
{¶22} R.C. 2907.05(A)(4), which governs gross sexual imposition of children
under 13 years of age, provides that: “[n]o person shall have sexual contact with another
when * * * the other person * * * is less than thirteen years of age.” R.C. 2907.01(B)
defines “sexual contact” 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.”
{¶23} R.C. 2905.01(A)(2) and (A)(4), governing kidnapping, provides: “[n]o
person, by force, [or] threat, * * * shall remove another from the place where the other
person is found or restrain the liberty of the other person * * * [t]o engage in sexual
activity, as defined in section 2907.01 of the Revised Code, with the victim against the
victim’s will.” R.C. 2907.01(C) defines “[s]exual activity” as “sexual conduct or
sexual contact, or both.”
{¶24} K.R. testified about six separate and distinct sexual acts including five
instances of rape and one act of gross sexual imposition. Although K.R. could not
remember specific dates, he distinguished the separate acts by location, the activity that
occurred prior to or after the commission of each offense, and his age at the time each
offense was committed. For example, he testified that he often spent nights at West’s
parents’ house on East 187th Street. West orally raped K.R. in this house on two
separate occasions. In the first instance, K.R. was sleeping in West’s bed when West
climbed in bed with him, placed K.R.’s hand on his penis, then forced K.R.’s head down
to his penis, and placed his penis in K.R.’s mouth. West ejaculated on K.R.’s forehead.
{¶25} On the second occasion, West again orally raped K.R. in his bed.
However, this time West did not place K.R.’s hand on his penis and West ejaculated in
K.R.’s mouth. In contrast to the first instance where K.R. remained in bed with West
after the rape, this time K.R. ran to the bathroom to rinse his mouth and went to sleep on
the couch in the TV room. When his aunt and uncle found him on the couch, they
directed him back to West’s bed and K.R., who was in second grade, obeyed.
{¶26} K.R. testified that West anally raped him in the basement of his aunt’s
house. K.R.’s aunt had sent him to the basement to retrieve food from the freezer.
West followed him into the basement where he grabbed K.R., forcibly pulled his pants
down, and anally raped him. After the rape, West told K.R., “Don’t say anything or I’ll
kill you.”
{¶27} On another occasion, while K.R. was spending another weekend at his
aunt’s house, West confronted K.R. while he was watching cartoons in the TV room and
anally raped him. This time, K.R. was in third grade.
{¶28} The last rape occurred at K.R.’s house when West was babysitting. While
K.R. was playing video games in the basement with one of his cousins, West called K.R.
upstairs to his mother’s bedroom, grabbed him, and forcibly raped him. This time, K.R.
was in fourth grade.
{¶29} In all of the incidents, K.R. testified that West used force to restrain him and
compel him to engage in sexual activity against his will. He was under ten years of age
during this time. K.R.’s testimony alone is sufficient to support West’s convictions.
{¶30} Further, the jury assessed K.R.’s credibility and believed his testimony.
Although K.R. admittedly was unaware of the exact dates, he described each act with
specificity and had no reason to fabricate these stories. Because West testified on his
own behalf, the jury also had the opportunity to hear West’s side of the story and assess
his credibility. West testified that K.R. often spent nights at his parents’ house while he
was living there. West denied ever sharing a room with K.R. and could not recall where
K.R. slept when he stayed at his parents’ house. However, upon further questioning, he
admitted, “[h]e might have slept in my room, I don’t recall, but he might have slept in my
room, too.” He also specifically denied engaging in sexual activity with K.R.
{¶31} There was no physical evidence linking West to the crimes, and as
previously stated, K.R.’s body showed no signs of abuse. The jury’s decision was based
solely on the credibility of the witnesses. The jury is in the best position to consider the
witnesses’ demeanor and thus to assess their credibility. The jury is therefore entitled to
believe or disbelieve all, part, or none of a witness’s testimony. State v. Thompson, 10th
Dist. No. 07AP-491, 2008-Ohio-2017, ¶ 35. It is apparent that the jury in this case
chose to believe K.R.
{¶32} Given the evidence presented at trial, we cannot say that the jury lost its way
or created a manifest miscarriage of justice. Thus, West’s convictions are not against
the manifest weight of the evidence.
{¶33} Therefore, the third assignment of error is overruled.
Juvenile Court
{¶34} In his fourth assignment of error, West argues he was denied due process of
law because he should have been bound over from juvenile court for the rape offenses he
committed as a juvenile. The court instructed the jury that to find West guilty, they had
to find that the offenses occurred between June 1, 2000 and June 1, 2004, as alleged in
the indictment. West did not reach age 18 until June 20, 2001. West contends that
because he was not charged with the crimes until after he was 18 years old, he was
deprived of substantial rights he would have had as a juvenile.
{¶35} R.C. 2151.23(J) provides:
If a person under eighteen years of age allegedly commits an act that would
be a felony if committed by an adult and if the person is not taken into
custody or apprehended for that act until after the person attains twenty-one
years of age, the juvenile court does not have jurisdiction to hear or
determine any portion of the case charging the person with committing that
act. In those circumstances, divisions (A) and (B) of this section do not
apply regarding the act, and the case charging the person with committing
the act shall be a criminal prosecution commenced and heard in the
appropriate court having jurisdiction of the offense as if the person had
been eighteen years of age or older when the person committed the act. All
proceedings pertaining to the act shall be within the jurisdiction of the court
having jurisdiction of the offense, and that court has all the authority and
duties in the case as it has in other criminal cases in that court.
{¶36} Although West allegedly committed some of the offenses before his 18th
birthday, because he was not apprehended until after he was 21 years old, the juvenile
court lacked jurisdiction, and the case was properly tried in the common pleas court. Id.;
State v. Lindstrom, 8th Dist. No. 96653, 2011-Ohio-6755, ¶ 19.
{¶37} Accordingly, the fourth assignment of error is overruled.
Verdict Forms
{¶38} In the fifth assignment of error, West argues the trial court erred when it
included the locations where offenses were committed in the verdict forms. 1 He
contends the inclusion not only amended the indictment, which contained no reference to
location, but represented an inference that certain acts had in fact occurred, and therefore
precluded the jury from making its own independent determination of those facts. West
also argues he was “entitled to proper notice of such express allegation in the indictment
if it was to be included in the verdict form.”
{¶39} The State argues that references to specific locations in the verdict forms
provided information to distinguish each act and avoid the due process and double
jeopardy problems inherent in carbon copy indictments. See, e.g., Valentine v. Konteh,
395 F.3d 626 (6th Cir.2005); State v. Ogle, 8th Dist. No. 87695, 2007-Ohio-5066. In
this way, if any counts resulted in acquittals, West would have been protected from
further prosecution of those offenses on double jeopardy grounds. Valentine at 634-635.
{¶40} The purposes of an indictment are to give an accused adequate notice of the
charge and to enable an accused to protect himself or herself from any future prosecutions
for the same incident. Id.; State v. Horner, 126 Ohio St.3d 466, 2010-Ohio-3830, 935
N.E.2d 26. Further, Crim.R. 7(D) allows a trial court to amend an indictment to
The locations of the alleged offenses were identified in the caption of the verdict forms
1
with the titled offenses. For example, the verdict form for Count 1 states under the case number:
COUNT ONE — RAPE —
Fellatio — Defendant’s bedroom.
conform to the evidence presented at trial so long as it does not change the identity of the
offense. State v. O’Brien, 30 Ohio St.3d 122, 127-28, 508 N.E.2d 144 (1987).
{¶41} The verdict forms containing references to specific locations were submitted
to the jury in the third trial of this case. As previously stated, the dates contained in the
indictment were amended to conform to the evidence presented in the first two trials.
There is nothing to suggest that the allegations had changed or that the victim’s testimony
about where the acts occurred was different in the third trial than in the previous two
trials. Although it may be better practice to amend the indictment before adding alleged
details of an offense on the verdict form, under the circumstances in this case, we find
that West was not prejudiced by lack of notice or that he was unable to defend himself.
{¶42} Moreover, the language added to the verdict forms more precisely identified
the crimes than the indictment and therefore conferred on West further protection from
double jeopardy. Rather than bolster the State’s allegations, the verdict forms required
the State to prove those additional facts beyond a reasonable doubt and thus increased the
State’s burden, further protecting West.
{¶43} We therefore find no prejudice and the fifth assignment of error is
overruled.
Consecutive Life Sentences
{¶44} In the sixth assignment of error, West asserts the trial court abused its
discretion in imposing consecutive life sentences. He claims that because there is no
evidence that his convictions constituted the worst forms of the offense, or that he posed
the greatest likelihood of committing future crimes, the court should not have imposed
consecutive life sentences. We disagree.
{¶45} West was sentenced in May 2010, prior to the passage of H.B. 86. Under
the statutory law in effect at that time, the trial court was not required to make findings on
the record to justify its sentence. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845
N.E.2d 470.
{¶46} The jury found West guilty of raping a child under ten years of age five
times over a period of several years. We therefore find the trial court was well within its
discretion to impose consecutive life sentences.
{¶47} Therefore, the sixth assignment of error is overruled.
Jury Deliberations
{¶48} In his seventh assignment of error, West argues the trial court violated his
right to procedural due process because the jury’s verdict was not the product of careful
consideration. The jurors were required to serve beyond their normal period of jury
service, and two of the jurors became concerned they would be forced to miss their
previously scheduled travel plans.
{¶49} West never objected to the court’s management of the jury deliberations.
Therefore, we review this assigned error solely for plain error. Crim.R. 52(B) provides
that, “[p]lain errors or defects affecting substantial rights may be noticed although they
were not brought to the attention of the court.” “Notice of plain error under Crim.R.
52(B) is to be taken with the utmost caution, under exceptional circumstances and only to
prevent a manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d
804 (1978), paragraph three of the syllabus. In order to find plain error under Crim.R.
52(B), it must be determined, but for the error, the outcome of the trial clearly would have
been otherwise. Id. at paragraph two of the syllabus.
{¶50} The record demonstrates that the court assured the jurors that it would
accommodate them if deliberations extended into their planned vacations. The court
noted that the jury had already invested several hours to deliberation, because the jury
began deliberating the previous day. The court instructed the jury to proceed with their
deliberations and stated: “If this problem still exists when it gets up to the dinner hour, I
will talk with you again and we will see if we can’t work something out, okay?” After
further deliberation, the jury reached a verdict later that same evening.
{¶51} We find nothing in our review of the record that suggests the court
pressured the jury to reach a verdict quickly. Rather, the record establishes that the court
was aware of the jurors’ plans and was willing to accommodate their needs. We find no
plain error under these circumstances.
{¶52} Accordingly, the seventh assignment of error is overruled.
{¶53} 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. 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.
______________________________________________
COLLEEN CONWAY COONEY, JUDGE
MELODY J. STEWART, P.J., and
SEAN C. GALLAGHER, J., CONCUR