State v. Cook , 2017 Ohio 7953 ( 2017 )

[Cite as State v. Cook, 2017-Ohio-7953.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2016-L-079
- vs - :
KENNETH TYRONE COOK, SR., :
Defendant-Appellant. :
Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2015 CR
000912.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant
Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
Painesville, OH 44077 (For Plaintiff-Appellee).
Charles R. Grieshammer, Lake County Public Defender, and Vanessa R. Clapp,
Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 (For
Defendant-Appellant).
CYNTHIA WESTCOTT RICE, P.J.
{¶1} Appellant, Kenneth Tyrone Cook, Sr., appeals his conviction, following a
jury trial, in the Lake County Court of Common Pleas of kidnapping, rape, and felonious
assault. The lead issues are whether the trial court committed plain error in allowing a
Sexual Assault Nurse Examiner to testify as an expert and in not giving lesser-included-
offense jury instructions. For the reasons that follow, we affirm.
{¶2} Appellant was charged in a ten-count indictment with kidnapping, a felony-
one (Count 1); kidnapping, a felony-one (Count 2); kidnapping, a felony-one (Count 3);
kidnapping, a felony-one (Count 4); felonious assault, a felony-two (Count 5); felonious
assault, a felony-two (Count 6); domestic violence, a felony-three (Count 7); kidnapping,
a felony-one (Count 8); rape, a felony-one (Count 9); and sexual battery, a felony-three
(Count 10). Appellant pled not guilty and the case was tried to a jury.
{¶3} Sarah Weber testified that in October 2015, she was living in a single-
family residence on Overlook Dr. in Painesville Township with her two boys, age 9 and
13, and appellant. Sarah had known appellant for about 12 years and lived with him in
a boyfriend-girlfriend relationship in her home from the end of 2014 until September
2015. Their relationship was unstable at best and they argued constantly. Although
they were broken up from June until mid-September 2015, appellant continued to live
there. Their intimate relationship resumed in mid-September.
{¶4} In late September, Sarah learned she was pregnant and told appellant.
Their relationship did not improve. Sarah asked him to move out several times, but he
refused.
{¶5} During the evening on Thursday, October 22, 2015, while Sarah’s children
were in the living room watching television, she was in her bedroom with appellant. She
told him their relationship was not working out; that she was not happy; and that he
needed to move out. She also said she might have become pregnant while they were
not together so the baby may not be his.
{¶6} Appellant became furious and started arguing with Sarah. As appellant
was walking out of the bedroom, he took Sarah’s cell phone and threw it across the
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room. Appellant went in the living room and took the keys to Sarah’s car from a window
ledge in the front doorway and Sarah tried to stop him because she did not want him to
take her car.
{¶7} Sarah was trying to grab the keys from his hand. She grabbed his shirt
and hit him. Appellant struck her in the face. He then pushed her and she fell to the
floor. Appellant left for a few minutes, then returned and, in the presence of her
children, he grabbed her by her hair and dragged her out of the house, down the stairs,
and to the car. Sarah was only wearing shorts and a t-shirt with no shoes or socks.
Appellant opened the driver’s door. He pushed Sarah in the car and into the passenger
seat. While they were leaving, Sarah looked back and saw her youngest boy looking
out the side window by the front door. Appellant was punching Sarah in the car. He
called her a “b _ _ _ _” and a “w _ _ _ _,” and said she would be lucky if she made it
alive.”
{¶8} Appellant stopped the car on Bank Street, an industrial area, near a large
abandoned building. He kept asking Sarah who the other possible father was. She
gave him the name of a man appellant knew and he backhanded her in the face.
Appellant then got out of the car and took Sarah’s car keys with him. He came over to
the passenger side and dragged her out of the car and pushed her to the ground. He
was yelling at her, calling her names, and kicking her in the legs, arms, back, and the
back of her neck.
{¶9} Suddenly, appellant stopped kicking her and got back in the car. Sarah
started walking away from the car. She heard the car accelerate and she started to run.
She ran across railroad tracks, and, when she looked back, she saw appellant driving
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the car directly at her. She jumped on top of a picnic table on the side of the building.
The car stopped just inches from the table. Sarah said that if she had not jumped on
the table, the car would have hit her.
{¶10} Appellant got out of the car and forcibly put her in the passenger seat.
While appellant was driving, he was hitting her, grabbing her hair, hitting her head
against the steering wheel, and spitting on her, all the while calling her a “w _ _ _ _.”
Sarah tried to get out of the car a few times, but every time, he pulled her back.
{¶11} After driving awhile, they were stopped by a train. Appellant turned the
car light on and looked at Sarah’s face. He made a phone call. Sarah recognized the
voice on the other end of the line as that of appellant’s friend Melissa Nicholson. He
told Melissa she was going to have to pick him up from jail because, he said, “I just
gave this b _ _ _ _ a black eye.”
{¶12} Appellant then drove to a Convenient Food Mart on Madison Ave. When
he pulled into the parking lot, he was still on the phone with Melissa. He parked and got
out of the car, taking Sarah’s keys with him. Appellant went in the store and Sarah
looked at the bruises on her face in the mirror on her visor.
{¶13} Appellant returned to the car and drove back to Sarah’s house. When
they arrived, Sarah walked in the front door, but went straight to her bedroom because
she did not want the boys to see her face. Appellant followed her. Once inside Sarah’s
bedroom, appellant immediately started arguing with her. He took a picture of Sarah’s
bruised face on his phone and said “look how stupid you look.” He said he was going to
send the picture to the father of her baby so he could see what he did to her. Appellant
sent him a Facebook message on Sarah’s other cell phone, saying, “Well since you f _
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_ _ _ _ my girl she got pregnant with your kid. Good luck.” Sarah later retrieved this
message, which appellant sent at 10:55 p.m., and gave it to police.
{¶14} At that time Sarah sent a Facebook message to her sister, Jennifer, who
had made arrangements to come to Sarah’s house the following morning. Sarah
messaged Jennifer not to come because she was not going to be home. Sarah was
concerned because she did not know if appellant would still be there when Jennifer
arrived.
{¶15} Appellant left the house and Sarah asked her boys to help her find the
battery for her cell phone in her room. Shortly thereafter, appellant returned and the
boys went in their bedroom.
{¶16} Appellant called Melissa again and after they talked for awhile, appellant
got off the phone and backhanded Sarah again in her face. Appellant asked Sarah
what she and the other male had done sexually. He said he wanted to know what they
did so they (he and Sarah) could reenact it. Sarah refused, but he got on top of her and
forced her to engage in sexual conduct on the floor. Sarah was crying and kept trying to
back away from him, but he kept pulling her back.
{¶17} When appellant was done, he left the house, and Sarah sent her sister
Jennifer the following message at 11:53 p.m.:
{¶18} Please don’t [message] me back about this. I will call u in the
morning [because I'm] afraid he’s going to come back home but I
told him [about the baby] and he be[a]t the shit out of me. He ha[s]
my car. I need to go to the police station in the morning and I know
u have to work but I don’t want anyone else to see right now. So I
really need u. I [don’t know] what else to do. I want to call the cops
now but I’m scared.
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{¶19} Sarah said she did not sleep at all that night because her whole body was
sore and she could feel her face throbbing.
{¶20} Early the next morning at about 6:30 a.m., Sarah called Jennifer and told
her that appellant beat her up. Jennifer had not seen Sarah’s two messages from the
night before. Sarah asked Jennifer to come and pick her and her boys up and take
them to the police station. Jennifer was crying and said she was on her way. Sarah
woke the boys up; they dressed quickly; and then waited for Jennifer to arrive.
{¶21} Sarah realized that appellant’s work clothes were at her house and he
would probably come back for them that morning so Sarah and the boys left the house.
They were running down the street when Jennifer saw them and picked them up.
{¶22} As Jennifer continued driving, they passed appellant who was driving
Sarah’s car in the opposite direction toward Sarah’s home. Jennifer drove to the
Painesville police station and then to Tri-Point Hospital. Sarah was examined by Sexual
Assault Nurse Examiner (“SANE”) Trisha McCurdy. Nurse McCurdy said Sarah was
tearful, very sore, and in great pain. Her tailbone was in pain and it was difficult for her
to sit. Nurse McCurdy said Sarah had sustained blunt force trauma to her face. She
said Sarah had obviously been struck in the face and her injures were serious. Her face
was very swollen. She had extreme swelling and redness and tenderness to both eyes
to the point where her right eye was swollen shut. She had bruising and swelling to her
cheeks and bruising around both eyebrows. She had abrasions to her head and neck.
She had abrasions to her forehead (which are now scars). Her mouth was swollen and
her lower lip was bruised. She had scratch marks to her face, which were bleeding.
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She had bruises behind her right ear. She had swelling and pain in both upper arms.
Sarah said the pain from her injuries lasted about two weeks.
{¶23} Sarah told Nurse McCurdy and the responding Lake County Sheriff’s
Deputy that her boyfriend Kenneth Cook had assaulted and punched her. However,
she did not tell them she had been sexually assaulted because she did not know this
was rape and also because she was ashamed and afraid of appellant.
{¶24} Lake County Sheriff’s Detective Robert Izzo testified that appellant was
arrested on a warrant during the evening on Friday, October 23, 2015. The following
Monday, October 26, 2015, he met with appellant at the jail, and after Mirandizing him,
appellant agreed to be interviewed. He said that after learning Sarah’s baby may not be
his, he was calm and tried to leave the house, but could not because she pulled on his
shirt, trying to prevent him from leaving. He said he agreed to take a ride with her. He
said they drove on Bank St. (the industrial area where Sarah said appellant almost hit
her with her car), but appellant did not say they stopped there, Instead, he said they
continued driving. He said that while driving, Sarah assaulted him in the car. He said
he stopped at Jackie’s Bar on State St. and tried to get help from patrons of the bar. He
said that a female bar patron came over to the car and beat up Sarah and that is how
she sustained any injuries. Appellant repeatedly said he never hit Sarah that night. He
said that after the altercation at the bar, he took her home. Appellant said he asked her
if she would show him how she had sex with the other male so they could reenact it. He
said she willingly complied, and they had sex, which he repeatedly referred to as
“consensual.” Although appellant said Sarah assaulted him, the only injury he showed
the detective was some minor swelling at the top of his right hand.
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{¶25} Following appellant’s arraignment on October 26, 2015, Detective Izzo
met Sarah for the first time at court, and asked her if she and appellant had had sex that
night because appellant was so open about it during his interview. She said they did,
but that it was not consensual. Sarah told Detective Izzo that she had been in contact
with her sister Jennifer that night and had sent her text messages, which should be on
her phone. Jennifer was at the arraignment with Sarah, so Detective Izzo went in the
jury room with her and took photos of the messages Sarah had sent her.
{¶26} After talking to Sarah, Detective Izzo learned about the stops she and
appellant made on Bank St. and at the Convenient Food Mart. Appellant had not
mentioned they stopped at either location. The detective said he wanted to look at
Convenient’s security video to see if it corroborated Sarah’s statement.
{¶27} Detective Izzo said he obtained a copy of Convenient’s video, which
showed that at 11:25 that night, appellant and Sarah were in the Convenient parking lot
and that he exited Sarah’s car holding a cell phone in one hand and car keys in the
other. The video shows appellant walking in the store, staying in there for one minute,
and Sarah looking at her face in the visor mirror.
{¶28} Detective Izzo said he investigated appellant’s claim that Sarah was
beaten by a patron at Jackie’s Bar. The detective went to the bar and talked to Sacha
Wancho, the sole bartender on duty that night. She testified there was no fight or any
other disturbance at the bar that night.
{¶29} Melissa Nicholson, appellant’s friend, testified as a court witness. She
said that appellant called her that evening and told her he backhanded Sarah in the
face. Melissa said that appellant stayed with her that night, and he never said Sarah
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was assaulted at Jackie’s Bar. Melissa said that while visiting appellant at the jail, he
told her to find a “coke head” named Sean and have him say he saw Sarah get into a
fight that night.
{¶30} Detective Izzo interviewed Sarah’s two boys. The detective said what
they told him was consistent with what Sarah said. The boys testified at trial they saw
their mother try to take her keys from appellant. They saw him push her to the floor and
then drag her out of the house by her hair to the car. The nine-year old said he saw
appellant hit his mother’s face in the living room and then, while he was looking out the
window and watching appellant and his mother in the car, he saw appellant hit her many
times.
{¶31} Detective Izzo said he went to the industrial area on Bank St. that Sarah
mentioned. He found the abandoned building, picnic table, and railroad tracks, which
corroborated Sarah’s testimony.
{¶32} Detective Izzo said that appellant called Melissa Nicholson from jail and in
that recorded conversation said to her, “So what ok so I backhanded her * * *.”
{¶33} Appellant did not testify and did not present any witnesses to testify on his
behalf.
{¶34} The jury returned a verdict finding appellant guilty of all ten counts. The
court merged Count 2 (kidnapping), Count 3 (kidnapping), Count 4 (kidnapping), and
Count 7 (domestic violence) into Count 5 (felonious assault). The court also merged
Count 8 (kidnapping) and Count 10 (sexual battery) into Count 9 (rape).
{¶35} The trial court considered that appellant was convicted of felonies almost
every year from 1997 to 2010 and sentenced four times to prison. Pertinent here, he
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was convicted of domestic violence in 1999; domestic violence, a felony-five, in 2000
and sentenced to six months in prison; falsification in 2006; attempted domestic
violence, a felony-four, in 2009 and sentenced to eight months in prison; and domestic
violence, a felony-three, and violation of a protection order, a felony-three, in 2010 and
sentenced to four years in prison, to be served consecutively to the eight-month
sentence in the 2009 case.
{¶36} The trial court sentenced appellant to six years on Count 1 (kidnapping);
seven years on Count 5 (felonious assault); five years on Count 6 (felonious assault):
and ten years on Count 9 (Rape), the sentences to be served consecutively to each
other for a total of 28 years in prison.
{¶37} Appellant appeals, asserting four assignments of error. For his first, he
alleges:
{¶38} “The trial court committed plain error in violation of the defendant-
appellant’s state and federal constitutional rights to fair trial and due process when it
permitted the SANE nurse to testify as an expert witness.”
{¶39} At trial the state called Christi Laprairie, a Sexual Assault Nurse Examiner,
who testified as an expert witness. She did not examine Sarah, but testified concerning
delayed reporting by victims in sexual assault cases. Appellant does not challenge
Nurse Laprairie’s qualifications. Rather, he argues the trial court committed plain error
in allowing Nurse Laprairie’s testimony regarding delayed reporting and consent
because such matters are not beyond the knowledge or experience of lay persons, as
required by Evid.R. 702(A). He also argues Nurse Laprairie did not examine Sarah.
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{¶40} “The determination of the admissibility of expert testimony is within the
discretion of the trial court. Evid.R. 104(A). Such decisions will not be disturbed absent
abuse of discretion.” Valentine v. Conrad, 110 Ohio St.3d 42, 2006-Ohio-3561, ¶9.
However, defense counsel did not object to Nurse Laprairie’s testimony. Appellant thus
waived all but plain error.
{¶41} Crim.R. 52(B) allows us to correct “[p]lain errors or defects affecting
substantial rights” that were not brought to the attention of the trial court. In State v.
Barnes, 94 Ohio St.3d 21, 27 (2002), the Supreme Court of Ohio set forth very strict
limitations on what constitutes plain error. “First, there must be an error, i.e., a deviation
from a legal rule.” Id. Second, the error must be plain, i.e., the error must be an
“obvious” defect in the proceedings. Id. “Third, the error must have affected ‘substantial
rights.’” Id. The defendant has the burden of demonstrating plain error. State v. Payne,
114 Ohio St.3d 502, 2007-Ohio-4642, ¶17. A reversal is warranted only if the defendant
can prove the outcome would have been different absent the error. Id. The decision to
correct plain error is discretionary and should be made “‘with the utmost caution, under
exceptional circumstances and only to prevent a manifest miscarriage of justice.’”
Barnes, supra, quoting State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the
syllabus.
{¶42} Appellant does not reference the specific testimony of Nurse Laprairie with
which he takes issue. He objects in general to her testimony regarding delayed
reporting of sexual assault and consent in such cases. However, without citing the
specific testimony that he claims did not satisfy Evid.R. 702(A), appellant has failed to
properly raise this issue. App.R. 16(A)(7).
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{¶43} In any event, Nurse Laprairie testified she was an emergency room nurse
for 17 years and has been a licensed Sexual Assault Nurse Examiner (“SANE”) for
three years. She took the necessary training to be licensed as a SANE and she takes
continuing education to maintain her license. She has conducted more than 400
examinations as a SANE in sexual assault cases. She said that, based on her
experience, many victims delay reporting sexual assault for a variety of reasons, such
as fear. She said that in cases involving intimate partner sexual assault, victims often
delay reporting the sexual assault because they believe that, due to the existence of the
relationship, sexual assault is not rape. She also said that in such cases, victims often
delay reporting sexual assault because they are afraid others will not believe them due
to the relationship.
{¶44} This court has stated that “[t]he post-shock reactions of a rape victim are
important to a proper corroboration of testimony of the victim that she was, in fact,
raped. Likewise, these reactions may manifest themselves in a lesser degree when
observed by the average layman. Expert opinion is necessary to properly interpret the
reactions. This is probably more important in child rape cases than in adult situations.”
State v. Whitman, 16 Ohio App.3d 246, 247 (11th Dist.1984). This court stated that
“although the admission of evidence of this nature has a prejudicial impact on the
defendant’s claim of innocence, the probative value of this testimony clearly outweighs
the prejudicial impact” because “the testimony of the expert witness tended to explain
the psychological trauma experienced by the rape victim.” Id.{¶45} The Ninth District, in State v. Moore, 9th Dist. Medina No. 1736, 1989 WL
21233 (March 8, 1989), applied this court’s decision in Whitman, a child-rape case, to a
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case involving an adult victim who did not report the rape for ten days. At trial, the state
presented a psychologist who had never examined the victim, but, rather, gave his
opinion describing a victim’s range of reactions to a rape. On appeal, Moore argued
such testimony is within the knowledge of the average juror. The Ninth District
disagreed and allowed the testimony, stating:
{¶46} Perhaps the jury * * * would have been capable of deciding whether
[the victim’s] reactions would be typical of an adult confronted with
such a traumatic event. However, as said in 4 Weinstein's Evidence
702(02) (1981), there is no bright line to demarcate those issues
which are within the comprehension of the jury from those which
are not.
{¶47} Wide latitude is given to the court in determining the admissibility of
expert testimony and we review the admissibility of evidence under
an abuse of discretion standard.* * * Under these circumstances,
we find no abuse of the trial court's discretion where the testimony
helped those jurors unacquainted with the trauma which would
accompany such a violation of one's physical and emotional
integrity * * *. Moore at *6.
{¶48} The Ninth District also applied this court’s decision in Whitman in State v.
Grandberry, 9th Dist. Lorain No. 94CA005781, 1994 WL 527910 (Sep. 28, 1994), a
rape case in which the victim delayed reporting the rape for several days. The trial
court allowed a veteran police detective, who had investigated many rape cases, to
testify it is not uncommon for rape victims to delay reporting the rape to authorities. The
Ninth District held the detective’s testimony was relevant because it would help jurors
understand why the victim delayed reporting the rape. Id. at *4. Further, the court held
the probative value of the expert’s testimony to explain the victim’s delay outweighed
any prejudicial effect because he was subject to cross-examination and, thus, the
defense had the opportunity to counter any possible prejudice. Id.
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{¶49} Further, in State v. Solether, 6th Dist. Wood No. WD07053, 2008-Ohio-
4738, another rape case, a police detective, who had investigated some 200 sexual
assault cases, testified that, based on his training and experience, it is not unusual for
rape victims to delay reporting the rape for a variety of reasons. The Sixth District found
no error, stating:
{¶50} Although Officer Gates’ testimony about delayed reporting was
based largely upon his personal experience, the fact that delayed
reporting by sexual assault victims is not uncommon is not within
the knowledge of the average juror. Thus, because Gates’
testimony required “specialized knowledge” it is properly
categorized as expert testimony. * * *
{¶51} [W]e find that Officer Gates had a sufficient degree of specialized
knowledge to testify regarding delayed reporting by sexual assault
victims. (Emphasis added.) Id. at ¶65-69.
{¶52} Turning now to appellant’s arguments, he contends that because Nurse
Laprairie did not examine Sarah, the nurse was not competent to testify. However,
Evid.R. 703 does not require that an expert’s opinion be based on facts perceived by
him. Further, Ohio appellate courts have allowed experts to testify as to the common
reactions of rape victims without having examined the victim. Moore, supra. The fact
that Nurse Laprairie did not examine Sarah was pertinent only to challenge the nurse’s
credibility.
{¶53} Further, appellant argues that because Sarah is not a child, Nurse
Laprairie’s expert testimony was not necessary and was thus inadmissible to explain
why Sarah delayed reporting. However, the Ninth District in Grandberry, supra, held
that child rape cases do not provide the only factual scenario in which an expert may
testify regarding delay in reporting sexual assault. Id. at *5. The court held that such
testimony need not be confined to cases of child sexual assault. Id. The court
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explained that the relevance, scientific acceptance, and probative value of such
testimony precludes limiting it to child rape cases. Id.
{¶54} Appellant also argues that because Sarah was able to explain why she
delayed reporting, Nurse Laprairie’s testimony was unnecessary. However, while Sarah
was able to state her reasons for not initially reporting the rape, that does not mean the
jury would understand her reasons are typical of rape victims. Further, because Sarah
testified that, in the circumstances, she did not know appellant’s sexual conduct was
rape, it stands to reason the jury may not have known that either.
{¶55} Nurse Laprairie’s testimony was offered to explain to the jury that a
delayed report by a sexual assault victim is not uncommon. Her testimony should have
been limited to that purpose; any testimony that went further, if objected to, should not
have been permitted. The victim in this case testified as to why she did not immediately
report that she had been sexually assaulted. Nurse Laprairie’s testimony as to other
reasons why a victim might delay reporting was therefore irrelevant. However, the
admission of this testimony does not rise to the level of plain error as there was
substantial other evidence to support appellant’s conviction.
{¶56} Appellant’s second assigned error alleges:
{¶57} “The defendant-appellant was deprived of his constitutional rights to fair
trial and due process when the trial court failed to give lesser included offense
instructions on two of five counts of kidnapping.”
{¶58} Appellant argues that, while the trial court gave jury instructions for the
lesser included offenses of abduction and unlawful restraint with respect to kidnapping
as charged in Counts, 1, 2, and 8, the guilty verdicts for kidnapping in Counts 3 and 4
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violated his right to a fair trial and due process because the court did not give these
instructions with respect to those counts.
{¶59} The decision of whether to give a particular jury instruction lies within the
trial court's discretion. State v. Nichols, 11th Dist. Lake No.2005-L-017, 2006-Ohio-
2934, ¶28. However, appellant concedes he did not object to the court’s instructions.
In fact, when the trial court explained why it did not believe the lesser included offense
instructions were warranted under Counts 3 and 4, defense counsel said he agreed.
{¶60} Crim.R. 30(A) provides in relevant part: “On appeal, a party may not
assign as error the giving or the failure to give any instructions unless the party objects
before the jury retires to consider its verdict, stating specifically the matter objected to
and the grounds of the objection.” Thus, having waived any error related to the trial
court’s decision not to give this instruction, our review is precluded unless appellant
demonstrates the existence of plain error.
{¶61} However, appellant faces a more fundamental obstacle in challenging the
verdicts on Counts 3 and 4 because, due to the merger of these counts with Count 5,
appellant was not sentenced on Counts 3 and 4 and thus was not convicted of them.
{¶62} The Supreme Court of Ohio, in State v. Powell, 49 Ohio St.3d 255, 263
(1990) (superseded by constitutional amendment on other grounds), stated: “Since the
trial court merged the kidnapping convictions with one another, [the defendant] received
only one sentence for kidnapping and an erroneous verdict on Count Three would be
harmless beyond a reasonable doubt.” Accord State v. Wolff, 7th Dist. Mahoning No.
07 MA 166, 2009-Ohio-2897, ¶70 (“When a trial court dispatched with a count through
merger, any error in the jury’s verdict on the merged count is rendered harmless beyond
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a reasonable doubt.”); State v. Williams, 4th Dist. Scioto No. 11CA3408, 2012-Ohio-
4693, ¶54. In Williams, the Fourth District stated:
{¶63} Here, the record reflects that although the jury did return a finding
of guilt as to * * * count 10, the trial court “ordered that count 10
merge with Count 1 and Count 2.” Thus, despite the jury’s finding
Williams guilty on count 10, the trial court did not impose a
sentence for count 10. “A conviction consists of a finding of guilt
and a sentence.” State v. Fields, 1st Dist. No. C-090648, 2010-
Ohio-4114, ¶7, citing State v. Henderson, 58 Ohio St.2d 171, 177-
179 (1979) * * *. As such, although the jury found Williams guilty of
count 10, the trial court did not impose a sentence for count 10 and
as a result, Williams was not convicted of count 10. Therefore,
there is no conspiracy conviction to vacate.
{¶64} Here, because the trial court merged the kidnapping offenses in Counts 3
and 4 with felonious assault in Count 5, appellant was only sentenced on Count 5 and
thus was only convicted of Count 5. As a result, any error in the guilty verdicts for
Counts 3 and 4 was harmless beyond a reasonable doubt.
{¶65} In any event, in light of the overwhelming evidence of appellant’s guilt, he
failed to demonstrate the existence of plain error.
{¶66} For his third assigned error, appellant alleges:
{¶67} “The defendant-appellant’s constitutional rights to due process and fair
trial under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution
and Article I, Sections 10 and 16 of the Ohio Constitution were prejudiced by the
ineffective assistance of counsel.”
{¶68} The Ohio Supreme Court has held “[c]ounsel’s performance will not be
deemed ineffective unless and until counsel's performance is proved to have fallen
below an objective standard of reasonable representation and, in addition, prejudice
arises from counsel’s performance.” State v. Bradley, 42 Ohio St.3d 136 (1989),
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paragraph two of the syllabus, following Strickland v. Washington, 466 U.S. 668 (1984).
In order to demonstrate prejudice, the defendant must show “that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would be different.” Strickland, supra, at 694.
{¶69} Moreover, “‘a court need not determine whether counsel’s performance
was deficient before examining the prejudice suffered by the defendant as a result of
the alleged deficiencies. * * * If it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice, * * * that course should be followed.’“ Bradley,
supra, at 143, quoting Strickland, supra, at 697.
{¶70} Appellant asserts two grounds in support of his ineffectiveness claim.
First, he relies on trial counsel’s failure to object to the testimony of Nurse Laprairie.
However, pursuant to our analysis under the first assignment of error, the trial court did
not abuse its discretion in allowing this testimony. Thus, even if counsel had objected,
the objection would not have been well taken. As a result, trial counsel’s failure to
object did not prejudice appellant, and does not support his ineffectiveness claim.
{¶71} Next, appellant argues that because his trial counsel did not object to the
trial court’s failure to instruct the jury as to the lesser included offenses of kidnapping as
to Counts 3 and 4 of the indictment, his counsel was ineffective. However, as
discussed under the second assignment of error, because appellant was not convicted
of these counts, any error by his attorney in not objecting to the instructions was
harmless and he was not prejudiced.
{¶72} For his fourth and last assignment of error, appellant contends:
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{¶73} “The trial court erred to the prejudice of the defendant-appellant when it
returned a verdict of guilty against the manifest weight of the evidence.”
{¶74} In reviewing the manifest weight of the evidence, the appellate court
reviews “‘the entire record, weighs the evidence and all reasonable inferences,
considers the credibility of witnesses and determines whether in resolving conflicts in
the evidence, the jury 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.
Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting State v. Martin, 20 Ohio App.3d
172, 175 (1983). “The power to reverse on ‘manifest weight’ grounds should only be
used in exceptional circumstances, when ‘the evidence weighs heavily against the
conviction.’” State v. Banks, 10th Dist. Franklin No. 09AP-13, 2009-Ohio-4383, ¶14,
quoting Thompkins at 387.
{¶75} Further, we must “give great deference” to the jury’s assessment of
witness credibility. State v. Covington, 10th Dist. Franklin No. 02AP-245, 2002-Ohio-
7037, ¶28. The jury is charged with assessing a witness’ credibility, and an appellate
court cannot substitute its judgment for that of the jury. State v. Awan, 22 Ohio St.3d
120, 123 (1986). “[T]he [jury] is free to believe all, part, or none of the testimony of each
witness appearing before it.” Warren v. Simpson, 11th Dist. Trumbull No. 98-T-0183,
2000 WL 286594, *8 (Mar. 17, 2000). A reviewing court must interpret the evidence
consistent with the verdict if it is susceptible to more than one interpretation. Id.; State v.
Haines, 11th Dist. Lake No.2003-L-035, 2005-Ohio-1692, ¶82.
{¶76} Here, appellant does not challenge the sufficiency of the evidence; he thus
concedes his conviction was supported by sufficient evidence. Further, he does not
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challenge any of the specific counts of which he was convicted as being against the
manifest weight; rather, he argues generally that his conviction was against the manifest
weight of the evidence.
{¶77} Appellant argues Sarah was unreliable because her initial reports to her
sister, the hospital, and the deputy did not mention the sexual assault. However, the
trauma Sarah endured that night (physical and mental), her embarrassment over the
demeaning acts to which she was subjected, and the fact that she did not know the
attack was rape due to her relationship with appellant explain her delayed reporting.
Further, Sarah’s delay in reporting was explained by Nurse Laprairie and Nurse
McCurdy as a common reaction by victims of sexual assault.
{¶78} Appellant argues that Sarah was the aggressor in the doorway because
she pulled him by his shirt and blocked the front door. However, this evidence was
consistent with Sarah’s testimony that she was trying to prevent him from taking her car.
He also said she assaulted him in the car. However, the only injury he had was some
minor swelling to the top of his right hand, which was consistent with the testimony that
he repeatedly backhanded Sarah in the face.
{¶79} Appellant questions Sarah’s credibility because he left her alone in the car
a few times so she could have exited the car. However, the evidence shows Sarah was
never out of his sight and he took her car keys each time he left. Moreover, Sara
explained that if she tried to escape, he could get to her house before she could and
she was afraid because her boys were home alone.
{¶80} Appellant argues his explanation of events was consistent. However, in
making this argument, he ignores Sarah’s terrible injuries; the fact that video
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surveillance shows they went to Convenient; the fact that his story about a bar patron
beating up Sarah was refuted by the bartender; and the fact that Melissa testified
appellant admitted he backhanded Sarah in the face and asked her (Melissa) to find a
coke head friend of his and have him say he saw Sarah get into a fight that night.
{¶81} Appellant’s argument that he and Sarah had “consensual sex” makes no
sense in light of his hitting Sarah (as admitted by appellant), his dragging her out of the
house that night (as testified to by the children), and Sarah’s serious injuries and pain.
{¶82} In finding appellant guilty, the jury obviously found Sarah’s testimony more
credible than appellant’s unsworn and uncorroborated comments to Detective Izzo. In
reaching its verdict, we cannot say the jury clearly lost its way and created such a
manifest miscarriage of justice that appellant is entitled to a new trial.
{¶83} For the reasons stated in this opinion, the assignments of error are
overruled. It is the order and judgment of this court that the judgment of the Lake
County Court of Common Pleas is affirmed.
TIMOTHY P. CANNON, J.,
THOMAS R. WRIGHT, J.,
concur.
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