State v. Austin , 2012 Ohio 4232 ( 2012 )

[Cite as State v. Austin, 2012-Ohio-4232.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-110804
TRIAL NO. B-1100995
Plaintiff-Appellee, :
vs. : O P I N I O N.
TERRY AUSTIN, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: September 19, 2012
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Christine Y. Jones, for Defendant-Appellant.
Please note: This case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
J. H OWARD S UNDERMANN , Presiding Judge.
{¶1} Defendant-appellant Terry Austin appeals his convictions for possession
of cocaine and two counts of rape with repeat violent offender (“RVO”) and sexually
violent predator (“SVP”) specifications. In five assignments of error, he argues that his
rape convictions and the SVP specifications are against the weight and the sufficiency of
the evidence; the trial court erred by denying his motions for a judgment of acquittal; the
trial court imposed a sentence that was contrary to law; and the trial court prejudiced his
defense by refusing to permit his sister’s testimony at trial. Finding none of his
arguments meritorious, we affirm his convictions.
I. Trial Court Proceedings
{¶2} Austin was arrested and charged with one count of aggravated burglary,
two counts of rape, and one count of possession of cocaine. The aggravated-burglary
and rape charges included a RVO specification. Each rape charge also included a SVP
specification. Austin elected to have the RVO and the SVP specifications tried to the
court.
{¶3} At a jury trial on the underlying charges, the state presented evidence
that during the early morning hours of February 12, 2011, C.H. had been sleeping in her
bed, when she was awakened by the sound of her apartment door opening. She saw
Austin, whom she knew from the neighborhood, standing inside her apartment holding
a puppy. Austin knew C.H. had her own dog as he had previously played with it in her
apartment. C.H. asked Austin to leave several times. He offered her $10, a cellular
phone, and a $50 piece of crack cocaine. When C.H. again asked Austin to leave, Austin
became angry, telling her that if she didn’t give him what he wanted, he was going to
bash her brains in. C.H. thought he was joking at first, and was just insinuating that he
wanted sex. So she continued to tell him to leave.
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{¶4} Austin eventually picked up a baseball bat that was in the apartment.
He held it up to C.H.’s dog and threatened to kill it. When C.H. stood up and attempted
to take the bat from Austin, he punched her in the mouth, causing C.H. to fall against
her television set. C.H. then started looking for her phone, but Austin had already taken
it. Austin held the bat up over C.H. and told her to remove her clothes. C.H., who feared
for her life, submitted to vaginal intercourse with Austin. C.H. testified that Austin
penetrated her vagina for twenty-five minutes before ejaculating. Austin then forced
C.H. into the bathroom and used a washcloth to clean himself. He also made C.H. clean
herself with a different washcloth. Austin then demanded anal intercourse. When C.H.
refused, Austin, still holding the baseball bat at his side, forced C.H. to have vaginal
intercourse with him again. Austin eventually fell asleep and C.H. was able to get her
phone from his pocket. She put on some clothes and went into the hallway to call the
police.
{¶5} When Cincinnati Police Officers Dan Hoderlein and John Homan
arrived at 6:30 a.m., they found Austin asleep on C.H.’s bed with his pants down around
his ankles. Austin first told police that he did not have sex with C.H., but he later
admitted to having sex with her. He denied raping her. Officer Hoderlein searched
Austin and found a crack cocaine rock, $10, and a cellular phone. Detective Jeff
Smallwood photographed the apartment and collected evidence, which included the two
washcloths, a beer can, bed sheets, and a baseball bat.
{¶6} Detective Jim Wigginton, who was assigned to the Personal Crimes Unit
of the Cincinnati Police Department, and Officer Charlene Morton interviewed both
C.H. and Austin. They interviewed C.H. first. C.H. was then transported to University
Hospital. Michelle Wilcox, a sexual assault nurse examiner at University Hospital,
examined C.H. and prepared a report. Wilcox noted that C.H. had a swollen and bruised
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lower lip that appeared to be recently injured. She used a rape kit and followed the
protocol to collect evidence. She took various swabs and pictures. She testified that the
examination took roughly four hours.
{¶7} In the meantime, Detective Wigginton and Officer Morton were
interviewing Austin. They recorded the interview, which was played for the jury.
Detective Wigginton testified that he also took swabs from Austin’s penis. Although he
submitted the rape kit to the lab and later submitted the washcloths, Detective
Wigginton forgot about the penile swabs until testifying at trial. The penile swabs were
still in the police property room. They were immediately submitted to the lab for
analysis at Austin’s request.
{¶8} Kelly Ashton-Hand, a DNA analyst and serologist with the Hamilton
County Coroner’s lab, analyzed the washcloths, the rape kit, and the penile swabs. She
prepared reports summarizing her findings. From the vaginal swabs in the rape kit,
Ashton-Hand was able to obtain a DNA profile that matched C.H. She also identified
the presence of semen, but there was not enough to obtain a DNA profile. A swab taken
from the front of C.H.’s neck was identified as saliva, and the DNA profile matched
Austin. The washcloths were also analyzed and the DNA profiles obtained were
mixtures from which Austin could not be excluded as a contributor. Ashton-Hand later
analyzed the penile swabs and found the presence of DNA that matched C.H.’s profile.
{¶9} Austin presented testimony from C.H.’s neighbor, Hoodia Collins.
Collins had lived in the same apartment with C.H. for eight and a half years. Collins
testified that C.H. often “hung out” with Austin, and that on the day of the alleged rape
C.H. had stated that she was going to call Austin and ask him to bring her some beer and
cigarettes. C.H., who was moving from her apartment, had also asked Collins for money
to help with her moving expenses. Collins further testified that she, not C.H., had let the
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police into the apartment building, that she had walked into C.H.’s apartment, and that
C.H. had told her “that guy [Austin] did not have nothing but $50.” To rebut Collins’s
testimony, the state presented C.H.’s 911 call.
{¶10} The jury acquitted Austin of aggravated burglary, but convicted him of
the two counts of rape and possession of cocaine. At a subsequent trial on the SVP and
the RVO specifications, the state introduced a certified copy of Austin’s 1989 conviction
for rape. The trial court found Austin guilty of the SVP and the RVO specifications.
After concluding that Austin did not meet the statutory criteria for the RVO sentencing
enhancement, it imposed only the sentencing enhancement for the SVP specification.
Pursuant to R.C. 2971.03(A)(3)(d)(ii), the trial court sentenced Austin to 15 years to life
for each rape offense. It sentenced Austin to six months for the possession of cocaine
offense. The trial court ordered that all the sentences be served concurrently. The trial
court also explained Austin’s duty to register as a Tier III sex offender.
II. Sufficiency and Weight of the Evidence
{¶11} In his first, second, and third assignments of error, Austin argues that
his rape convictions and the SVP specifications were based on insufficient evidence and
were against the manifest weight of the evidence, and that the trial court erred by
denying his Crim.R. 29 motions for judgments of acquittal.
{¶12} When reviewing a trial court’s denial of a Crim.R. 29 motion, this court
must determine “if the evidence is such that reasonable minds can reach different
conclusions as to whether each material element of a crime has been proved beyond
a reasonable doubt.” See State v. Bridgeman, 55 Ohio St.2d 261, 381 N.E.2d 184 (1978),
syllabus. To reverse a conviction for insufficient evidence, we must be persuaded, after
viewing the evidence in the light most favorable to the state, that no rational trier of fact
could have found the essential elements of the crime proven beyond a reasonable doubt.
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See State v. Waddy, 63 Ohio St.3d 424, 430, 588 N.E.2d 819 (1992). To reverse a
conviction on the manifest weight of the evidence, we must weigh the evidence and all
reasonable inferences, consider the credibility of the witnesses, and conclude that in
resolving conflicts in the evidence, the trier of fact clearly lost its way and created a
manifest miscarriage of justice. See State v. Thompkins, 78 Ohio St.3d 380, 387, 678
N.E.2d 541 (1997).
A. Rape Offenses
{¶13} Austin first argues that the state presented insufficient evidence for the
jury to find him guilty of the two counts of rape. R.C. 2907.02(A)(2) provides that “[n]o
person shall engage in sexual conduct with another when the offender purposely
compels the other person to submit by force or threat of force.”
{¶14} C.H. testified that she was asleep and awoke to discover Austin in her
apartment. When C.H. asked Austin to leave and indicated that she was not interested
in having sex with him, Austin threatened her and her dog with a baseball bat. When
C.H. attempted to take the bat from him, Austin punched C.H. in the mouth. He then
held the bat over her head while she undressed. Austin put his penis into her vagina on
two separate occasions. The DNA mixture found on the washcloths revealed a profile
from which Austin could not be excluded, and the DNA found on C.H.’s neck matched
Austin’s profile. C.H.’s DNA was also found on swabs taken from Austin’s penis. When
the police arrived at C.H.’s apartment, they found Austin passed out in C.H.’s bed with
his pants down around his ankles. Because this evidence was sufficient to establish each
element of rape, the trial court properly denied Austin’s Crim.R. 29 motions. This
evidence, moreover, was sufficient for the jury to find Austin guilty of the two rape
offenses.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶15} While Austin denied raping C.H. and presented testimony from C.H.’s
neighbor, Hoodia Collins, that C.H. had discussed inviting Austin to her apartment that
day to bring her cigarettes and to ask him for money, and that C.H. had told her that she
had taken $50 from Austin after the alleged rape, the credibility of these witnesses’
testimony was for the jury to determine. After reviewing the record, we cannot
conclude that the jury lost its way and created such a manifest miscarriage of justice that
we must reverse Austin’s convictions for rape and order a new trial.
B. Sexually Violent Predator Specifications
{¶16} Austin next challenges the sufficiency of the evidence adduced for the
SVP specifications. He argues that the trial court improperly relied on his 1989 rape
conviction to support the specifications. His argument is premised upon the Ohio
Supreme Court’s decision in State v. Smith, 104 Ohio St.3d 106, 2004-Ohio-6238, 818
N.E.2d 283.
{¶17} In Smith, the Supreme Court was concerned with interpreting a former
version of R.C. 2971.01(H)(1), which defined a SVP as “a person who has been convicted
of or pleaded guilty to committing, on or after January 1, 1997, a sexually violent
offense and is likely to engage in the future in one or more sexually violent offenses.”
(Emphasis added.) The Supreme Court held that a “[c]onviction of a sexually violent
offense cannot support the specification that the offender is a sexually violent predator
as defined in R.C. 2971.01(H)(1) if the conduct leading to the conviction and the * * *
specification are charged in the same indictment.” Id. at syllabus. Rather, “R.C.
2971.01(H)(1) requires that only a conviction that existed prior to the indictment of the
underlying offense can be used to support the specification.” Id. at ¶ 1.
{¶18} In response to Smith, the legislature amended R.C. 2971.01(H)(1) to its
current version, which defines a SVP as a “person who, on or after January 1, 1997,
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OHIO FIRST DISTRICT COURT OF APPEALS
commits a sexually violent offense and is likely to engage in the future in one or more
sexually violent offenses.” (Emphasis added.) Thus, the statute now provides that a
sexually violent offense in the current indictment can be the basis for the SVP
specification. See State v. Green, 8th Dist. No. 96966, 2012-Ohio-1941, ¶ 23-25; State
v. Mitchell, 8th Dist. No. 9487, 2010-Ohio-5775, ¶ 21-30; State v. Boynton, 8th Dist. No.
93784, 2010-Ohio-4670, ¶ 2-6; State v. Wagers, 12th Dist. No. CA2009-06-018, 2010-
Ohio-2311, ¶ 27-32; State v. Hardges, 9th Dist. No. 24175, 2008-Ohio-5567, ¶ 50.
{¶19} Austin argues that his 1989 rape conviction cannot be used as the
predicate offense for the SVP specification, because the offense was committed before
1997. But the record reflects that the trial court used Austin’s commissions of rape in the
current indictment to satisfy the first part of R.C. 2971.01(H)(1). Because the current
version of R.C. 2971.01(H)(1) permits the trial court to rely on Austin’s commission of
those offenses to satisfy the first part of the statutory definition of a SVP, we find
Austin’s argument meritless.
{¶20} With respect to the second part of the definition—Austin’s likelihood of
engaging in sexually violent offenses in the future—R.C. 2971.01(H)(2) provides that
“[f]or purposes of division (H)(1) of this section, any of the following
factors may be considered as evidence tending to indicate that there is a
likelihood that the person will engage in the future in one or more
sexually violent offenses:
(a) The person has been convicted two or more times, in separate
criminal actions, of a sexually oriented offense or a child-victim oriented
offense. For purposes of this division, convictions that result from or are
connected with the same act or result from an offense committed at the
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same time are one conviction, and a conviction set aside pursuant to the
law is not a conviction.
(b) The person has a documented history from childhood, into the
juvenile development years, that exhibits sexually deviant behavior.
(c) Available information or evidence suggests that the person
chronically commits offenses with a sexual motivation.
(d) The person has committed one or more offenses in which the
person has tortured or engaged in ritualistic acts with one or more
victims.
(e) The person has committed one or more offenses in which one
or more victims were physically harmed to the degree that the particular
victim’s life was in jeopardy.
(f) Any other relevant evidence.
{¶21} In making its finding that Austin was likely to engage in sexually violent
offenses in the future, the trial court relied upon the facts of the current offense. The
trial court further stated that Austin had served 18 years in prison for the 1989 rape; that
Austin was on parole for the 1989 rape conviction; and that he was staying at a sexual
offender halfway house as required by the department of corrections when he
committed the current rape offenses. On this record, sufficient evidence supported the
trial court’s finding that Austin is likely to engage in the future in one or more sexually
violent offenses, and that, he is, therefore, a SVP. Furthermore, we cannot conclude that
the trial court’s findings were against the manifest weight of the evidence.
{¶22} Having concluded that the trial court properly denied Austin’s Crim.R.
29 motions, and that his rape convictions and the SVP specifications were supported by
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sufficient evidence and were not against the manifest weight of the evidence, we overrule
his first, second, and third assignments of error.
III. Prison Sentence
{¶23} In his fourth assignment of error, Austin argues that his 15-year-to-
life prison sentence was erroneous and excessive.
{¶24} When reviewing felony sentences, we engage in a two part analysis.
We first determine whether the sentences are contrary to law. See State v.
Alexander, 1st Dist. Nos. C-110828 and C-110829, 2012-Ohio-3349, ¶ 9. If the
sentences are not contrary to law, “we must review them to determine whether the
trial court abused its discretion in selecting sentences within the range permitted by
statute.” Id.{¶25} Austin argues that his aggregate sentence is contrary to law because
he should not have been found guilty of the SVP specifications. Thus, he argues that
the maximum prison sentence the trial court could have imposed for each rape
offense was ten years. But we have concluded in our disposition of Austin’s first
assignment of error that sufficient evidence supports the trial court’s findings on the
SVP specifications.
{¶26} Because Austin was found guilty of two counts of rape under R.C.
2907.02(A)(2), each with a SVP specification, the trial court was required to “impose
an indefinite prison term consisting of a minimum term fixed by the court that is not
less than ten years and a maximum term of life imprisonment” on each count. See
R.C. 2971.01(A)(3)(d)(iii). Austin’s sentence of 15 years to life for each of the rape
offenses, while not the minimum sentence the court could impose, fell within the
statutory range, and, thus, was not contrary to law.
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{¶27} Nor can we conclude that the trial court abused its discretion in
imposing the sentences based upon the brutal nature of the rape offenses, Austin’s
criminal record, and the fact Austin had committed the rape offenses while he was
still living in a halfway house after having been released from a significant prison
term for a 1989 rape conviction. We, therefore, overrule his fourth assignment of
error.
IV. Trial Court’s Exclusion of Testimony From Austin’s Sister
{¶28} In his fifth assignment of error, Austin argues the trial court abused
its discretion when it prohibited his sister from testifying at trial. He argues that the
trial court should have remedied the matter with a brief continuance instead of
excluding her testimony.
{¶29} Broad discretion is afforded to the trial court in regulating discovery
and in determining the appropriate sanctions for violations. In exercising their
discretion, trial courts must inquire into the circumstances surrounding the violation
and impose the least severe sanction. See City of Lakewood v. Papadelis, 32 Ohio
St.3d 1, 511 N.E.2d 1138 (1987), paragraph two of the syllabus.
{¶30} At the close of the state’s case, defense counsel sought to present
Austin’s sister as a witness in his defense. Counsel explained to the trial court that he
was unaware that his client’s sister would testify that she received a call from C.H. on
the night of the offense inviting her over to party and that C.H. had also called to
invite Austin over to party. The state objected, arguing there was not enough time for
it to subpoena the witness’s phone records.
{¶31} Crim.R. 16(A) provides that “[a]ll duties and remedies are subject to a
standard of due diligence, apply to the defense and prosecution equally, and are
intended to be reciprocal.” Here, the trial court inquired into the circumstances of
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the defense’s late notice, asking how with due diligence it was not discovered until
the first day of trial that the defendant’s sister was friends with C.H. and had had a
telephone conversation with her on the night of the offense. The trial court found
that allowing the witness to testify would be prejudicial to the state because it would
not be able to cross-examine the witness with phone records due to such late notice.
{¶32} We cannot conclude the trial court abused its discretion by failing to
grant Austin’s counsel a “brief continuance” to remedy the situation when the trial
court had already continued the trial in progress for two days because Austin had
wanted the penile swabs analyzed. We, therefore, overrule his fifth assignment of
error and affirm the judgment of the trial court.
Judgment affirmed.
CUNNINGHAM and DINKELACKER, JJ., concur.
Please note:
The court has recorded its own entry this date.
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