State v. Ziga , 2020 Ohio 911 ( 2020 )

[Cite as State v. Ziga, 2020-Ohio-911.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 108336
v. :
GARY J. ZIGA, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 12, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-17-622904-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Jeffrey S. Schnatter and Allison M. Cupach,
Assistant Prosecuting Attorneys, for appellee.
John A. Fatica, for appellant.
FRANK D. CELEBREZZE, JR., J.:
Defendant-appellant, Gary Ziga (“appellant”), brings the instant appeal
challenging his convictions for rape, gross sexual imposition, and kidnapping.
Appellant argues that he was denied his constitutional right to the effective
assistance of counsel, his convictions were not supported by sufficient evidence, and
his convictions are against the manifest weight of the evidence. After a thorough
review of the record and law, this court affirms.
I. Factual and Procedural History
In the spring or summer of 2014, appellant was tasked with caring for
the victim in this case, T.D., while the victim’s mother, Me.D. (hereinafter “mother”)
was out of town for approximately three weeks. Appellant and the victim are
cousins. At the time, the victim was ten years old.
The victim alleged that appellant sexually assaulted her several times
during this three-week period. She did not, however, disclose the abuse to anyone
until she told her best friend and cousin, E.J., at a family reunion in 2017. After
disclosing the abuse to E.J., the victim told her grandmother, Ma.D. (hereinafter
“grandmother”). Grandmother told mother about the victim’s allegations, and
mother immediately took the victim to the police to report the sexual abuse.
Based on the victim’s allegations, the Cuyahoga County Grand Jury
returned a 12-count indictment on November 30, 2017, charging appellant with: (1)
rape (cunnilingus), in violation of R.C. 2907.02(A)(1)(b); (2) rape (fellatio), in
violation of R.C. 2907.02(A)(1)(b); (3) rape (anal intercourse), in violation of R.C.
2907.02(A)(1)(b); (4) kidnapping, in violation of R.C. 2905.01(A)(4); (5) gross
sexual imposition (forcing the victim to touch her own vagina), in violation of R.C.
2907.05(A)(4); (6) gross sexual imposition (forcing the victim to touch his penis),
in violation of R.C. 2907.05(A)(4); (7) kidnapping, in violation of R.C.
2905.01(A)(4); (8) gross sexual imposition (touching the victim’s vagina), in
violation of R.C. 2907.05(A)(4); (9) rape (vaginal intercourse), in violation of R.C.
2907.02(A)(1)(b); (10) rape (fellatio), in violation of R.C. 2907.02(A)(1)(b); (11) rape
(cunnilingus), in violation of R.C. 2907.02(A)(1)(b); and (12) kidnapping, in
violation of R.C. 2905.01(A)(4). Counts 4, 7, and 12 contained sexual motivation
specifications.
Counts 1-4 of the indictment pertained to offenses committed between
June 7 and 8, 2014, at an apartment in Brooklyn. Counts 5-12 pertained to offenses
committed between April 27 and June 6, 2014, at the victim’s house in Bay Village.
Counts 5-8 specifically pertained to offenses appellant committed on an evening
they played a game of truth or dare. Appellant pled not guilty during his December
5, 2017 arraignment.
A jury trial commenced on January 9, 2019. The victim testified in
detail about the sexual abuse. The victim opined that appellant abused her “[o]ver
a dozen times.” (Tr. 214.) She explained, however, that she could not recall every
single detail about every incident. Appellant abused her over the course of three
weeks while mother was out of town. (Tr. 222.)
The victim testified at trial about four specific incidents. The first
incident occurred after the first couple of days appellant was watching her. She was
in the living room one evening and appellant wanted to play truth or dare. The
victim testified that the game “started off normal until he asked me to touch myself,
and I refused. And so he had taken my hand and put it there and made me touch
myself.” (Tr. 210.) Appellant dared her to touch her “private parts.” The victim did
not want to comply. Appellant asked her again, and when she declined, “[appellant]
took [her] hand and rubbed it on [her] private part.” (Tr. 211.) She confirmed that
her private part was in reference to her vagina. During the same game, appellant
dared the victim to “grab his penis through his shorts[.]” (Tr. 213.) When the victim
did not want to comply, appellant grabbed her hand and made her touch him
through his shorts. After appellant forced her to touch his penis, she went to her
room.
During the truth or dare game, the victim did not feel like she was able
to remove herself from the situation: “I just felt like [appellant] had like a lot of
authority over me and that if I were to leave, that I would get in trouble or, you know,
get hurt, or where am I supposed to go? I didn’t really have anywhere else to go.”
(Tr. 214.)
A second incident occurred on the same evening as the truth or dare
game. The victim testified that appellant got into bed with her: “I woke up, and
[appellant] was in bed with me and he was rubbing my vagina with his hand.”
(Tr. 214.)
A third incident occurred in appellant’s bedroom. The victim testified
that appellant “had me perform oral sex on him.” (Tr. 217.) She explained, “[a]ll I
remember is that I had to perform oral sex on him, and then he had performed oral
sex on me.” (Tr. 217.)
Aside from the touching and oral sex, the victim testified that appellant
would sometimes “take his penis and rub it on my vagina.” (Tr. 119.) This occurred
“[a] lot of times.” She explained that appellant would “rub his penis up and down
her vagina.” The victim asserted that appellant did not “fully” insert his penis into
her vagina. However, she explained that appellant was “poking” her vagina with his
penis and that appellant “poked” the tip of his penis “between the lips of her vagina.”
(Tr. 220-221.)
The victim testified that appellant attempted to insert his penis into
her anus. (Tr. 221.) This incident happened in the bedroom appellant was sleeping
in at the Bay Village house. She was in a lot of pain, and appellant stopped when she
began to scream.
The fourth specific incident the victim testified about was the last time
appellant assaulted her. Appellant brought the victim with him to a birthday party
at his friend’s apartment in Brooklyn. At some point during the evening, the victim
became very tired so she laid down in a bedroom. The next morning, she woke up
and appellant was in bed with her. The victim testified, “[appellant] smelled like
beer. He had to be drunk. He tried to do anal again.” (Tr. 228.) She explained that
appellant “attempted to try anal again,” and “the same exact thing happened, and I
screamed and he stopped because it hurt really bad[.]” (Tr. 230.) His penis touched
her vagina, appellant rubbed his penis on her vagina. The victim confirmed that
appellant rubbed his penis against her vagina but “never fully insert[ed] it[.]” (Tr.
230.) Appellant made her perform oral sex on him, and he performed oral sex on
her. She explained that there were others in the apartment at the time, but they were
sleeping. (Tr. 231.)
The morning after the birthday party, they left the apartment and
began walking. The victim testified that appellant was “trying to use me for money.”
(Tr. 232.) She explained, “[appellant] was asking people if they could give him
money for a bus back to Bay Village saying I needed to get back to Bay Village, but
really we were just going to walk back to his house and see if one of his roommates
could take us back to my house.” (Tr. 232.) Appellant asked a man on a motorcycle
if he could take the victim back to Bay Village. The motorcyclist called the police.
Police responded to the Giant Eagle on West 117th Street in Cleveland.
After speaking with appellant and the victim at the Giant Eagle,
officers determined that appellant had an outstanding warrant for petty theft
shoplifting. Officers placed appellant under arrest and had the victim’s
grandmother pick her up at the supermarket.
As noted above, the victim did not disclose the sexual abuse until 2017.
The victim testified that she did not tell anyone about the abuse because appellant
threatened her, on multiple occasions, that he would hurt her family — specifically
her grandmother — if she told anyone. When she disclosed the sexual abuse in 2017,
the victim and her mother went to the Bay Village Police Department where they
spoke with Detective Kevin Krolkosky.
Detective Krolkosky interviewed the victim in August 2017. At the
time, the victim was 14 years old. Detective Krolkosky conducted an investigation
into her allegations. Following this investigation, officers determined that there was
probable cause to arrest appellant. Appellant was arrested in November 2017.
At the close of the state’s case, defense counsel moved for a Crim.R. 29
judgment of acquittal. The trial court denied defense counsel’s motion.
The defense called three witnesses at trial: appellant’s boyfriend,
appellant’s mother, and appellant. Appellant unequivocally and categorically
denied the victim’s allegations. The defense rested and renewed the Crim.R. 29
motion. The trial court denied the renewed motion.
The jury returned its verdict on January 10, 2019. The jury found
appellant guilty of rape as charged in Counts 1, 2, 3, 9, 10, and 11. The jury found
appellant guilty of kidnapping as charged in Counts 7 and 12 of the indictment. The
jury found appellant guilty of gross sexual imposition as charged in Counts 5, 6, and
8. The jury found appellant not guilty of kidnapping, in violation of R.C.
2905.01(A)(4) with a sexual motivation specification as charged in Count 4. The
trial court ordered a presentence investigation report and referred appellant to the
court psychiatric clinic for an evaluation pursuant to R.C. 2947.06(B).
The trial court held a sentencing hearing on February 20, 2019. The
trial court determined that Counts 5, 6, and 7 merged; and Counts 11 and 12 merged.
The state elected to sentence appellant on Counts 7 and 12.
The trial court imposed an aggregate prison term of life without parole
for 35 years: life in prison with parole eligibility after 10 years for the rape offenses
on Counts 1, 2, 3, 9, and 10; life in prison with parole eligibility after 15 years for the
kidnapping offenses on Counts 7 and 12; and three years for the gross sexual
imposition offense on Count 8.
The trial court ordered Counts 1, 2, and 3 to run concurrently with one
another; the trial court ordered Counts 9 and 10 to run concurrently with one
another; and the trial court ordered the aggregate sentence on Counts 1, 2, and 3 to
run consecutively to the aggregate sentence on Counts 9 and 10. The trial court
ordered Counts 7 and 12 to run concurrently with one another but consecutively to
the aggregate sentence on Counts 1, 2, and 3, and consecutively to the aggregate
sentence on Counts 9 and 10. The trial court ordered Count 8 to run concurrently
with all other counts. The trial court classified appellant as a Tier III sex offender,
child offender registrant, and reviewed appellant’s reporting requirements.
On March 22, 2019, appellant filed the instant appeal challenging his
convictions. He assigns three errors for review:
I. [Appellant] received ineffective assistance of counsel when counsel
failed to request a psychiatric evaluation of [appellant] prior to trial.
II. [Appellant’s] rape convictions are not supported by legally sufficient
evidence as required by state and federal due process.
III. The jury’s verdicts finding [appellant] guilty are not supported by
the manifest weight of the evidence and his convictions violate his
rights to a fair trial and due process as protected by the Constitutions
of the United States and of the state of Ohio.
II. Law and Analysis
A. Ineffective Assistance of Counsel
In his first assignment of error, appellant argues that he was denied
his constitutional right to the effective assistance of counsel.
In order to prevail on a claim of ineffective assistance of counsel, a
defendant must demonstrate: (1) deficient performance by counsel, i.e.,
performance falling below an objective standard of reasonable representation, and
(2) counsel’s errors prejudiced the defendant, i.e., a reasonable probability that but
for counsel’s errors, the result of the proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs
two and three of the syllabus.
In this case, regarding the first Strickland prong, appellant argues that
counsel’s failure to raise the issue of appellant’s competency to stand trial or request
a psychiatric evaluation of appellant before trial constituted deficient performance.
Appellant acknowledges that the trial court referred him to the court psychiatric
clinic for a post-verdict evaluation, pursuant to R.C. 2947.06, for purposes of
determining an appropriate sentence, and that trial counsel concurred with this
referral. However, appellant contends that the post-verdict evaluation “served of
little value” given the nature of his convictions. Appellant’s brief at 3.
In support of his argument that trial counsel should have raised the
issue of appellant’s competency and requested an evaluation before trial, appellant
contends that the record contains sufficient evidence about his psychiatric issues.
Specifically, appellant directs this court to the following evidence in the record:
(1) victim’s testimony at trial about appellant trying to strangle himself with a belt
and asking for victim’s assistance in doing so; (2) appellant attempting suicide in the
back of the police car at Giant Eagle using a shoe lace; (3) appellant’s testimony
about previous suicide attempts, including driving a bicycle in front of a vehicle,
trying to hang himself in front of his boyfriend, and trying to overdose on heroin;1
and (4) appellant’s testimony that he has bipolar disorder and attention deficit
disorder and that he is “not on the proper medications at this time.” (Tr. 494.)
Finally, appellant asserts that although counsel characterized him as “weird” and
“strange,” counsel did not raise the issue of appellant’s competency or request an
evaluation.
As an initial matter, we note that most, if not all of the evidence based
upon which appellant contends that counsel should have requested a competency
evaluation before trial was adduced during trial. Appellant cannot rely on this trial
testimony as evidence based upon which counsel should have requested a
competency evaluation before trial.
Nevertheless, we find no basis upon which to conclude that counsel’s
failure to request a competency evaluation constitutes deficient performance. The
record before this court does not contain sufficient indicia of incompetence.
Appellant does not argue, much less demonstrate, nor does the record reflect that
appellant did not understand the nature of the trial court’s proceedings or that he
was unable to assist in his defense.
As noted above, appellant testified at trial that he suffers from bipolar
disorder and attention deficit disorder. Appellant also testified that he attempted
suicide on several occasions. With respect to the suicide attempt in the back of the
1 See tr. 489-490.
police car during the Giant Eagle incident, however, appellant testified that he
“wasn’t really trying to kill [himself]” and that he “was trying to draw attention to
[himself], trying to get out of petty theft because [he] knew the procedure.” (Tr.
491.) Appellant’s testimony is indicative of a deliberate, calculated attempt to
manipulate the criminal justice system.
Regarding appellant’s diagnoses and other suicide attempts, these
mental illnesses do not indicate that appellant was not competent to stand trial.
“Incompetency must not be equated with mere mental or emotional instability or
even with outright insanity. A defendant may be emotionally disturbed or even
psychotic and still be capable of understanding the charges against him [or her] and
of assisting his [or her] counsel.” State v. Bock, 28 Ohio St.3d 108, 110, 502 N.E.2d
1016 (1986); see State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d
48, ¶ 71 (“The fact that a defendant is taking * * * prescribed psychotropic drugs does
not negate his competence to stand trial.”). This court has held that a person
suffering from mental illness or taking psychotropic drugs may be able to
understand the charges against him or her and assist in his or her defense. See State
v. McClendon, 8th Dist. Cuyahoga No. 103202, 2016-Ohio-2630, ¶ 16, citing State
v. Robinson, 8th Dist. Cuyahoga No. 89136, 2007-Ohio-6831.
The record reflects that appellant understood and actively
participated in the proceedings below, and assisted in his defense. Appellant
participated in plea negotiations, rationally explained why he chose to defend
against the charges at trial rather than entering a plea agreement, inquired about his
speedy trial rights, filed a pro se motion to dismiss the case based on speedy trial
grounds, and authored notes that he used during his trial testimony.
Appellant acknowledges that he has a criminal history dating back to
when he was 18 years old. At the time of trial, appellant was 49 years old. There is
no evidence in the record that in any of his prior criminal cases, appellant had been
found incompetent or insane, or that any of his cases were transferred to the mental
health docket.
For all of these reasons, appellant’s ineffective assistance claim fails
under the first Strickland prong. We find no basis upon which to conclude that the
failure of appellant’s trial counsel to request a competency evaluation constituted
deficient performance.
Assuming arguendo that counsel’s failure to request a competency
evaluation before trial constituted deficient performance, appellant’s ineffective
assistance claim fails under the second Strickland prong because he has failed to
demonstrate a reasonable probability that had counsel requested a competency
evaluation, the outcome at trial would have been different. While appellant argues
that counsel should have requested a pretrial evaluation, he does not argue, much
less demonstrate, how he was prejudiced by counsel’s purported deficiency. We
decline to construct an argument on appellant’s behalf. To the extent that appellant
is suggesting that had counsel requested an evaluation some exculpatory or
mitigating information would have been uncovered, this argument is purely
speculative and insufficient to satisfy his burden of demonstrating prejudice.
Appellant’s first assignment of error is overruled.
B. Sufficiency
In his second assignment of error, appellant argues that his rape
convictions on Counts 3 (anal) and 9 (vaginal) were not supported by sufficient
evidence because the state failed to establish the requisite element of penetration.
The test for sufficiency requires a determination of whether the
prosecution met its burden of production at trial. State v. Bowden, 8th Dist.
Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 12. 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 492 (1991),
paragraph two of the syllabus.
Appellant was charged in Counts 3 and 9 with rape, in violation of
R.C. 2907.02(A)(1)(b), which 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.”
Sexual conduct is defined in R.C. 2907.01(A) as
vaginal intercourse between a male and female; anal intercourse,
fellatio, and cunnilingus between persons regardless of sex; and,
without privilege to do so, the insertion, however slight, of any part of
the body or any instrument, apparatus, or other object into the vaginal
or anal opening of another. Penetration, however slight, is sufficient to
complete vaginal or anal intercourse.
In support of his sufficiency challenge, appellant argues that the
victim’s testimony “fails to establish the element of penetration.” Appellant’s brief
at 5.
1. Count 3
Count 3 alleged that appellant committed the offense of anal rape at
the Brooklyn apartment after the birthday party. The victim’s testimony pertaining
to Count 3 refers to and builds upon her testimony about a prior incident at her
house in Bay Village during which appellant attempted to insert his penis into her
anus.
Regarding the prior incident, the victim testified that “[o]ne time
[appellant] attempted to do anal, and it had hurt so bad that I screamed and he
stopped.” (Tr. 221.) The following exchange took place between the prosecutor and
the victim:
[Prosecutor]: You said [appellant] attempted to do anal. So he was
using his penis? And was the pain caused by him actually trying to put
it into your anus? Did it go in at all, is that what you were feeling, the
pain?
[Victim]: I believe so.
(Tr. 221.)
Regarding the rape offense charged in Count 3, the victim asserted
that she became very tired during the party so she laid down in a bedroom. The next
morning, she woke up and appellant was in bed with her. The victim testified,
“[appellant] smelled like beer. He had to be drunk. He tried to do anal again.”
(Tr. 228.) Referencing the prior incident at the Bay Village house, the victim
explained, that appellant “attempted to try anal again.” (Tr. 229.) The following
exchange took place between the prosecutor and the victim:
[Prosecutor]: When you say try, describe what [appellant] did and
what you felt.
[Victim]: Well, the exact same thing happened, and I screamed and he
stopped because it hurt really bad[.]”
(Emphasis added.) (Tr. 230.)
After reviewing the record, we find that the evidence presented by the
state, if believed, was sufficient to establish the element of penetration on Count 3.
The victim believed that appellant’s penis went into her anus during the first
incident at the Bay Village house. Regarding the second incident at the Brooklyn
apartment, the victim testified that “the exact same thing happened.” The jury could
have reasonably determined that appellant’s penis did, in fact, penetrate the victim’s
anus during the first incident, and because “the exact same thing happened” at the
Brooklyn apartment, the jury could have reasonably determined that appellant’s
penis did, in fact, penetrate the victim’s anus for purposes of Count 3.
The state also presented circumstantial evidence from which the jury
could have reasonably inferred that appellant’s penis did, in fact, penetrate the
victim’s anus. It is well-established that circumstantial evidence has the same
probative value as direct evidence. Jenks, 61 Ohio St.3d at 272, 574 N.E.2d 492.
As noted above, the victim testified that when appellant attempted to
insert his penis into her anus, “it hurt really bad,” causing her to scream. (Tr. 230.)
The jury could have reasonably inferred that the extreme pain described by the
victim was caused by slight or partial penetration, rather than mere contact. See
State v. J.M., 10th Dist. Franklin No. 14AP-621, 2015-Ohio-5574, ¶ 14 (based upon
ten-year-old victim’s testimony that defendant “put his finger ‘a little bit in’ when
rubbing near her genitals and that it ‘hurt[] inside,’” a rational factfinder could
conclude that defendant’s finger did, in fact, enter the victim’s vagina.).
For all of these reasons, appellant’s rape conviction on Count 3 was
supported by sufficient evidence. Appellant’s second assignment of error is
overruled in this respect.
2. Count 9
Count 9 alleged that appellant committed the offense of vaginal rape
at the Bay Village house in the bedroom appellant was sleeping in while he was
babysitting her. The victim testified that aside from the touching and oral sex,
appellant would sometimes “take his penis and rub it on my vagina.” (Tr. 119.) This
occurred “[a] lot of times.” She explained that appellant would “rub his penis up
and down her vagina.”
When the state asked the victim if any part of appellant’s penis went
inside her, she asserted that she did not know. The following exchange took place
between the prosecutor and the victim.
[Prosecutor]: Well, did you feel anything?
[Victim]: Yes.
[Prosecutor]: What were you feeling?
[Victim]: Well, I knew — well, what I’m saying right now, he wasn’t
having sex with me.
[Prosecutor]: Okay. When you say sex, what do you mean by sex?
[Victim]: Penis like inside.
[Prosecutor]: Like fully inside?
[Victim]: Yes.
[Prosecutor]: What were you feeling?
[Victim]: Just like, kind of like poking me.
[Prosecutor]: Poking you like with the tip of [his penis], between your
[vaginal] lips?
[Victim]: Yes.
(Tr. 220-221.)
As an initial matter, a ten-year-old cannot reasonably be expected to
understand or recall what constitutes penetration — particularly under the
traumatic circumstances present in this case. Nevertheless, the victim’s testimony
pertaining to Count 9 only confirms that appellant did not fully insert his penis into
her vagina. The victim’s testimony that appellant “wasn’t having sex with me” and
that his penis was not “fully inside” is not dispositive of the issue of partial
penetration.
After reviewing the record, we find that the evidence presented by the
state, if believed, was sufficient to establish the element of penetration on Count 9.
The victim testified that appellant was “poking” her vagina with his penis.
Appellant’s act of “poking” the victim’s vagina with his penis is distinct from and
goes beyond his act, as described by the victim, of “rubbing” his penis on her vagina.
The victim confirmed that appellant “poked” the tip of his penis “between [her
vaginal] lips[.]” (Emphasis added.) (Tr. 220-221.)
Based on the victim’s testimony, the jury could have reasonably
determined that appellant slightly or partially penetrated the victim’s vagina when
he was poking his penis in between the lips of her vagina. Accordingly, appellant’s
rape conviction on Count 9 was supported by sufficient evidence. Appellant’s
second assignment of error is overruled in this respect.
C. Manifest Weight
In his third assignment of error, appellant argues that his convictions
are against the manifest weight of the evidence.
In contrast to sufficiency of the evidence, “weight of the evidence
involves the inclination of the greater amount of credible evidence.” State v.
Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). While “sufficiency of
the evidence is a test of adequacy as to whether the evidence is legally sufficient to
support a verdict as a matter of law, * * * weight of the evidence addresses the
evidence’s effect of inducing belief.” State v. Wilson, 113 Ohio St.3d 382, 2007-
Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing Thompkins at 386-387. “In other words,
a reviewing court asks whose evidence is more persuasive — the state’s or the
defendant’s?” Id. The reviewing court must consider all the evidence in the record,
the reasonable inferences, and the credibility of the witnesses to determine
“‘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.’” Thompkins at 387, quoting State v. Martin, 20 Ohio
App.3d 172, 485 N.E.2d 717 (1st Dist.1983).
In support of his manifest weight challenge, appellant appears to
argue that the victim and her trial testimony was not credible because (1) the victim
waited three years to report the allegations against appellant, whereas she reported
an incident involving her mother to her school on the same day; (2) the victim’s
allegations are not corroborated by other evidence; (3) the hickeys the victim
described were not noticed by others; and (4) although the victim testified that she
screamed when appellant attempted to insert his penis into her anus in the Brooklyn
apartment, the people in the room next door did not hear any screaming.
First, regarding the delay in the victim’s disclosure of the sexual abuse,
the victim explained why she did not report appellant’s conduct to anyone: “I knew
the entire time that this is not okay, but [appellant] had told me that if I were ever
to say anything about what we were doing, that my family would be like hurt,
specifically my grandma.” (Tr. 218.) Appellant threatened the victim not to tell
anyone on more than one occasion. (Tr. 218.) Appellant told the victim, “don’t tell
anybody or else, like your family will be sorry.” (Tr. 222.) The victim believed that
appellant was 100 percent serious about his threats. She believed appellant was
serious because he drank a lot, and he was “really scary” when he would get mad.
(Tr. 223.) On one occasion, appellant got mad when he wrote the victim a note and
she did not write him a note back. As a result, appellant started throwing and
breaking things.
The victim testified about why she finally came forward to report the
sexual abuse after the family reunion in 2017 where she ran into appellant. She
explained, “it just made me sick seeing him around kids. It made me sick seeing
him.” (Tr. 237.) She continued, “[appellant] being near a child made me want to
throw up. And I couldn’t handle it anymore, and a few days later I went and I told
my cousin [E.J.] everything.” (Tr. 237.) She confirmed that she told E.J. that
appellant sexually abused her and that she had not told anyone else about the abuse.
The victim felt that E.J. needed to know about the abuse because “there’s kids in our
family now. There’s little kids. And I know I’m not the only one he’s done this to. I
know I’m not the only one.” (Tr. 238.)
After telling E.J., she told her grandmother a few days later. She
waited a few days to tell her because she knew it would break her grandmother’s
heart. The victim’s grandmother told the victim’s mother about the sexual abuse.
The mother immediately took the victim to the police where they spoke with
Detective Krolkosky.
The jury also heard testimony about an incident that occurred
between the victim and her mother in the fall of 2013 that the victim reported to her
teacher at school immediately, on the same day. The victim told her teacher that her
mother hit her while she was getting ready for school in the morning. The mother
explained that the incident involved her “hit[ting the victim] in the morning trying
to hustle her along to get her out the door to the bus on time.” (Tr. 271.) The teacher
reported the allegation to the police, and an investigation was conducted. Detective
Krolkosky investigated the allegation, and determined that the “physical discipline”
was not criminal in nature. A referral was made for the victim and mother to
participate in counseling. The victim explained that she reported the incident
involving her mother to her teacher the same day because unlike appellant, her
mother had not threatened her. (Tr. 223.)
Caroline Adams, a clinician at the University of Kentucky’s Center on
Trauma and Children, started treating the victim in February 2018. Adams had
been working with the victim for approximately nine months at the time of trial.
Adams testified that her clients typically have a delay in disclosing
sexual abuse. (Tr. 316.) Adams explained the reasons for delayed disclosure:
So, typically it has to do with worries, fear of any kind of negative
consequences due to disclosure. It’s very common for a child not to
disclose not only sexual abuse but any other type of abuse, but as far as
sexual abuse goes, some reasons are fear of being harmed, fear of loved
ones being harmed. I know this is true in [the victim’s] case in
particular. She reported her perpetrator [appellant] had threatened to
harm her and her loved ones if she disclosed what occurred. So causing
emotional distress to loved ones.
In [the victim’s] case, her grandparents who had health issues and I
know she was worried about causing distress to her grandparents and
them getting sick and not being able to handle this kind of information.
Being seen differently by others so having someone look at you
differently as if you are damaged goods because you’ve been violated in
this way, especially when it comes to sexual abuse, this can be real big
and cause self-blame and shame like there’s something wrong with me.
There has to be some reason why this happened to me. So all of these
reasons, and not being believed. Especially when you have an
interpersonal relationship with the perpetrator, it can be very hard to
want to disclose and tell other people they all see positively hurt me in
some way. There’s lots of different reasons why a person may not tell
initially.
(Tr. 316-317.) Adams testified that it is much more common for victims of abuse
to have a delayed disclosure rather than an immediate disclosure, which is “much
more rare.” (Tr. 318.)
On cross-examination, Adams opined that it was not “particularly
unusual for a child to wait three years to disclose what occurred, especially when it
comes to sexual abuse. That has so much stigma attached to it that some people
never disclose sexual abuse to wait several years before they disclose it. So, I
wouldn’t consider [the victim’s 40-month delay in disclosure] [ab]normal.”
(Tr. 325-326.)
Detective Krolkosky testified that based on his experience in juvenile
rape investigations, the victim’s delay in disclosure was “[n]othing unusual at all”
and “not uncommon[.]” (Tr. 417.)
Based on the victim’s testimony that appellant threatened to harm her
and her family if she disclosed the sexual abuse to anyone, the jury could have
reasonably concluded that the victim did not come forward for three years because
she was afraid that appellant would carry out these threats.
Second, appellant’s argument regarding the purported lack of
corroborating evidence is misplaced. “A victim’s testimony alone is sufficient to
support a conviction for sexual conduct.” State v. Murphy, 8th Dist. Cuyahoga No.
107836, 2019-Ohio-4347, ¶ 25, citing State v. Bacho, 8th Dist. Cuyahoga No. 93828,
2010-Ohio-4885. Although corroboration is not required, the record reflects that
the victim’s testimony is supported by other evidence presented by the state at trial.
The victim testified how appellant’s conduct affected her life: “I can’t
think. I have flashbacks all the time. Certain things trigger me. Like [appellant]
used to say ‘good deal’ a lot. Whenever somebody says ‘good deal’, I feel sick or hear
the number 44, that is how old he was, I was sick. And even like the name Gary.”
(Tr. 240.) The victim has been seeing a therapist to deal with these feelings.
The victim’s mother testified about the effect that appellant’s conduct
had on the victim’s life: “I feel like I’m living with a soldier who has PTSD. It’s
horrible. It’s really, it’s hard.” (Tr. 280.) Mother explained that the victim has
“[e]xtreme anxiety, mood swings, insomnia, inability to focus. [Appellant’s conduct
has] affected her school.” (Tr. 280-281.)
The victim’s counselor, Adams, testified that the victim “met criteria
across the board for PTSD” and that the victim has not wanted to talk about the
sexual abuse because it is so distressing to her. (Tr. 312-313.) Adams diagnosed the
victim with PTSD. On cross-examination, Adams confirmed that her clinical
impression is that the victim is “experiencing difficulties associated with PTSD.”
(Tr. 332.)
Third, regarding the hickeys, the victim confirmed on cross-
examination that she had numerous hickeys on her neck following the birthday
party at the apartment in Brooklyn. She explained, however, that she put makeup
on her neck and that she did not show the hickeys to anyone else. (Tr. 249-250.)
Fourth, regarding the incident at the Brooklyn apartment, the victim
testified that there were others in the apartment at the time appellant assaulted her,
but they were sleeping. (Tr. 231.) Three witnesses that attended the birthday party
testified at trial.
Sharon Elias lives at the Brooklyn apartment, and it was her birthday
that was being celebrated. Elias testified that everybody was drunk, so much so that
she prevented people from driving home because they drank too much. (Tr. 395.)
They were all doing crack in the bedroom, while the victim was in the living room.
She did not hear any screaming that night, and the other guests, Michael Djukic and
Stanley Tolbert, did not indicate to her they heard screaming. However, on redirect
examination, she testified that she probably would not have heard any sounds
coming from the bedroom because she “drank quite a bit.” (Tr. 401.) Stanley
Tolbert, Elias’s boyfriend, who lives at the Brooklyn apartment with her, testified
that he did not hear any screams while he was sleeping in the living room. He had
been drinking and doing crack. Although Tolbert testified that Michael Djukic slept
at the apartment on the couch in the living room after the birthday party, Djukic
testified that he left the birthday party around 11:00 p.m. He confirmed that he did
not know what happened after he left. The jury could have reasonably concluded
that these witnesses did not hear the victim’s scream because they were sleeping,
passed out from excessive alcohol and drug use, or, in Djukic’s case, because he was
no longer at the apartment.
As noted above, the victim testified in detail about appellant’s sexual
abuse. On the other hand, appellant categorically denied the victim’s allegations and
trial testimony. Appellant’s convictions are not against the manifest weight of the
evidence merely because the jury rejected the defense’s theory that appellant did not
sexually abuse the victim and found the victim’s testimony to be more believable
than appellant’s testimony. “‘[A] conviction is not against the manifest weight of the
evidence simply because the jury rejected the defendant’s version of the facts and
believed the testimony presented by the state.’” State v. Jallah, 8th Dist. Cuyahoga
No. 101773, 2015-Ohio-1950, ¶ 71, quoting State v. Hall, 4th Dist. Ross No.
13CA3391, 2014-Ohio-2959, ¶ 28. The jury did not lose its way in resolving the
conflicting theories based on the evidence presented at trial.
For all of the foregoing reasons, we find no basis upon which to
conclude that appellant’s convictions for rape, gross sexual imposition, and
kidnapping are against the manifest weight of the evidence. The jury heard
testimony from multiple witnesses, including the victim, regarding the delay in
disclosure.
This is not an exceptional case in which the evidence weighs heavily
against appellant’s convictions or that the jury clearly lost its way in finding
appellant guilty of rape, gross sexual imposition, and kidnapping. Accordingly,
appellant’s third assignment of error is overruled.
III. Conclusion
After thoroughly reviewing the record, we affirm appellant’s
convictions. Appellant was not denied his constitutional right to the effective
assistance of counsel. Appellant’s convictions for rape, gross sexual imposition, and
kidnapping were supported by sufficient evidence and are not against the manifest
weight of the evidence.
Judgment affirmed.
It is ordered that appellee recover from 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
convictions having been affirmed, any bail pending 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.
FRANK D. CELEBREZZE, JR., JUDGE
SEAN C. GALLAGHER, P.J., and
RAYMOND C. HEADEN, J., CONCUR