State v. Frazier , 2022 Ohio 4232 ( 2022 )

[Cite as State v. Frazier, 2022-Ohio-4232.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 8-22-10
v.
DION J. FRAZIER, OPINION
DEFENDANT-APPELLANT.
Appeal from Logan County Common Pleas Court
Trial Court No. CR 20 09 0207
Judgment Affirmed
Date of Decision: November 28, 2022
APPEARANCES:
Samantha L. Berkhofer for Appellant
Stacia L. Rapp for Appellee
Case No. 8-22-10
ZIMMERMAN, P.J.
{¶1} Defendant-appellant, Dion J. Frazier (“Frazier”), appeals the judgment
of the Logan County Court of Common Pleas. Frazier was found guilty by a jury
of one count of rape. On appeal, he argues that the jury’s verdict is against the
manifest weight of the evidence. For the reasons set forth below, we affirm.
{¶2} The genesis of this case is Frazier’s sexual activity with N.G., his seven-
year-old step-daughter in Logan County, Ohio.1
{¶3} On September 8, 2020, the Logan County Grand Jury indicted Frazier
on the three criminal charges including Counts One and Two for rape in violation
of R.C. 2907.02(A)(1)(b), (B), both first-degree felonies and Count Three of gross
sexual imposition (“GSI”) in violation of R.C. 2907.05(A)(4), (C)(2), a third-degree
felony. On September 14, 2020, Frazier appeared for arraignment and entered not
guilty pleas.
{¶4} Frazier proceeded to a jury trial on December 27th and 28th, 2021,
wherein he was found guilty of rape under Count One. However, he was acquitted
of Counts Two and Three.
{¶5} Thereafter, the trial court sentenced Frazier to a mandatory indefinite
prison term of 15 years to life under Count One.
1
N.G. was seven at the time of her disclosures and eight at the time of trial.
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{¶6} Frazier filed a timely notice of appeal and raises one assignment of error
for our review.
Assignment of Error
The Decision Of The Jury Was Erroneous As It Weighs Heavily
Against The Conviction, And The Jury’s Decision Was Not
Consistent With The Eveidence [sic] Presented. The Jury Lost
It’s [sic] Way.
{¶7} In his first assignment of error, Frazier argues that the jury’s finding of
guilt for rape under Count One is against the manifest weight of the evidence.
Standard of Review
{¶8} In determining whether a conviction is against the manifest weight of
the evidence, a reviewing court must examine 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. Thompkins, 78 Ohio St.3d 380,
387 (1997), superseded by state statute on other grounds, State v. Smith, 80 Ohio
St.3d 89 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).
A reviewing court must, however, allow the trier of fact appropriate discretion on
matters relating to the weight of the evidence and the credibility of the witnesses.
State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus. When
applying the manifest-weight standard, “[o]nly in exceptional cases, where the
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evidence ‘weighs heavily against the conviction,’ should an appellate court overturn
the trial court's judgment.” State v. Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-
5233, ¶ 9, quoting State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.
Analysis
{¶9} Frazier argues that the jury verdicts as to Count One and Count Two are
inconsistent since the jury acquitted him of the rape charge under Count Two but
found him guilty of rape under Count One. Specifically, he argues that the jury’s
determination as to Count Two supports that they did not believe N.G., and thus, no
sexual act occurred. Hence, he argues the jury’s verdict as to Count One is against
the manifest weight of the evidence. We disagree.
{¶10} With respect to Frazier’s argument, we note that “‘[c]onsistency
between verdicts on several counts of an indictment is unnecessary where the
defendant is convicted on one or some counts and acquitted on others; the conviction
generally will be upheld irrespective of its rational incompatibility with the
acquittal.’” State v. Smith, 3d Dist. Seneca No. 13-10-24, 2011-Ohio-997, ¶ 22,
quoting State v. Trewartha, 10th Dist. Franklin No. 04AP-963, 2005-Ohio-5697, ¶
15, citing State v. Adams, 53 Ohio St.2d 223 (1978), vacated in part on other
grounds, Adams v. Ohio, 439 U.S. 811, 99 S.Ct. 69 (1978). Importantly, every count
of a multiple-count indictment is considered to be distinct and independent of all the
other counts; therefore, inconsistent verdicts on different counts do not justify
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overturning a verdict of guilt. (Emphasis Added.) Id., citing State v. Hicks, 43 Ohio
St.3d 72, 78 (1989); State v. Brown, 12 Ohio St.3d 147 (1984), syllabus; State v.
Washington, 126 Ohio App.3d 264, 276 (2nd Dist.1998). As the Supreme Court of
Ohio has stated, “the sanctity of the jury verdict should be preserved and could not
be upset by speculation or inquiry into such matters to resolve the inconsistency.”
State v. Lovejoy, 79 Ohio St.3d 440, 444 (1997); State v. Seitz, 3d Dist. Shelby No.
17-12-11, 2014-Ohio-2463, ¶ 22.
{¶11} Here, Frazier is suggesting that the jury both acquitted and convicted
him on the same rape charge. However, our reading of the indictment and the bill
of particulars suggests that the State’s theory of the case was that two different
instances of sexual conduct (involving cunnilingus) occurred on the same date.
However, prior to trial, the State’s strategy changed, and the prosecution in its
opening statement and later during its arguments addressing the defenses’ motion
for acquittal asserted that Count One involved Frazier’s acts of kissing N.G.’s
vagina and Count Two was related to Frazier’s licking of her vagina.
{¶12} In this case, all of the indicted counts were related to events that
occurred in Frazier’s shed that he and N.G.’s mother utilized as a habitation between
the dates of May 8th through June 11, 2020.2 At trial, the State presented the video
of N.G.’s forensic interview wherein N.G. identified two separate instances of
2
The shed was on Frazier’s parent’s property. It had a makeshift bedroom and living room area with no
running water or bathroom facilities.
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sexual conduct (involving cunnilingus) occurring successively in a short time frame.
The sexual conducts consisted of Frazier kissing and licking N.G.’s vagina followed
by Frazier kissing her mouth. (See State’s Ex. 1). However, at trial, N.G. testified
that Frazier only kissed her vagina one time. Thus, the record supports that the
criminal counts involving rape under Counts One and Two were separate instances
of sexual conduct and later perceived by the prosecution as charges in the alternative
in order to conform the indictment to the evidence presented at trial. Accordingly,
there is no inconsistency in the verdicts here regardless of whether we approach this
issue as one involving different counts of rape charged as separate instances of
sexual conduct (involving cunnilingus) or as rape charges in the alternative. See
State v. Martinez, 3d Dist. Union Nos. 14-19-28 and 14-19-29, 2020-Ohio-4883, ¶
45.
{¶13} Moreover, Frazier’s argument is predicated on his assumption that the
jury found N.G. not credible. To us, the jury’s verdict supports that they found N.G.
credible. “‘Although we review credibility when considering the manifest weight
of the evidence, the credibility of witnesses is primarily a determination for the trier
of fact.’” State v. Chute, 3d Dist. Union No. 14-22-02, 2022-Ohio-2722, ¶ 30,
quoting State v. Banks, 8th Dist. Cuyahoga No. 96535, 2011-Ohio-5671, ¶ 13, citing
DeHass, 10 Ohio St.2d 230, at paragraph one of the syllabus.
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{¶14} Here, the jury had the opportunity to observe N.G. and all testifying
witnesses and, was “best able ‘to view the witnesses and observe their demeanor,
gestures[,] and voice inflections, and use these observations in weighing the
credibility of the proffered testimony.’” Banks at ¶ 13, quoting State v. Wilson, 113
Ohio St.3d 382, 2007-Ohio-2202, ¶ 24, citing Seasons Coal Co., Inc. v. Cleveland,
10 Ohio St.3d 77, 80-81 (1984). Furthermore, the jury “was in the best position to
weigh the evidence, and was free to believe all, some or none of [N.G.’s]
testimony.” State v. Muhleka, 2d Dist. Montgomery No. CIV.A. 19827, 2004-Ohio-
1822, ¶ 53, citing State v. Jackson, 86 Ohio App.3d 29, 33 (4th Dist.1993).
{¶15} Based upon our review of the record, we will not conclude that the
jury’s witness-credibility determinations were unreasonable or that their verdict is
inconsistent with respect to Counts One and Two in light of the evidence presented
at trial. Consequently, we conclude that the jury’s finding of guilt for rape under
Count One is not against the manifest weight of the evidence.
{¶16} Accordingly, and for the reasons set forth above, Frazier’s sole
assignment of error is overruled.
{¶17} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW and WILLAMOWSKI, J.J., concur.
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