State v. Campbell , 2014 Ohio 2181 ( 2014 )

[Cite as State v. Campbell, 2014-Ohio-2181.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 100246 and 100247
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ANTONIO R. CAMPBELL
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-12-563277 and CR-12-562779
BEFORE: Rocco, J., S. Gallagher, P.J., and McCormack, J.
RELEASED AND JOURNALIZED: May 22, 2014
ATTORNEYS FOR APPELLANT
Robert L Tobik
Public Defender
By: Cullen Sweeney
Assistant Cuyahoga County Public Defender
310 Lakeside Avenue
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Jesse W. Canonico
Brian Hoffman
Assistant County Prosecutors
1200 Ontario Street
Cleveland, Ohio 44113
KENNETH A. ROCCO, J.:
{¶1} In this consolidated appeal, defendant-appellant Antonio Campbell appeals
from his conviction and sentence stemming from two cases that were tried together.
Finding no merit to any of Campbell’s assignments of error, we affirm the trial court’s
final judgment.
{¶2} On May 23, 2012, Campbell was indicted in Cuyahoga C.P. No.
CR-12-562779, and charged with aggravated burglary, 1 two counts of gross sexual
imposition,2 two counts of kidnapping,3 felonious assault,4 and rape.5 All of the charges
were based on a single incident occurring on March 30, 2012, at the Loganberry
Apartment Complex involving victim, A.D. (“the A.D. case”).
{¶3} On June 25, 2012, Campbell was indicted in Cuyahoga C.P. No.
CR-12-563277, and charged with two counts of aggravated burglary, 6 two counts of
1
This charge carried a repeat violent offender specification and a notice of prior conviction.
2
These charges both carried a sexually violent predator specification. The state voluntarily
dismissed these specifications.
3
Both kidnapping charges carried a repeat violent offender specification and a notice of prior
conviction. One of the kidnapping charges carried a sexually violent predator specification and a
sexual motivation specification.
This charge carried a repeat violent offender specification, a sexually violent
4
predator specification, and a sexual motivation specification.
5
This charge carried a repeat violent offender specification, a sexually violent predator
specification, a sexual motivation specification, and a notice of prior conviction.
These charges both included a notice of prior conviction and a repeat
6
offender specification.
kidnapping, 7 felonious assault, 8 aggravated robbery, 9 and rape. 10 The charges in this
indictment were related to two incidents occurring at the Loganberry Apartment Complex
in March 2012, both involving M.W. (“the M.W. case”).11 The rape charges stem from
the first incident, and the assault charges stem from the second incident.
{¶4} The state filed a motion requesting that the trial court join the A.D. and M.W.
cases. Campbell filed a motion for relief from prejudicial joinder. The trial court
granted the state’s motion and denied Campbell’s motion. Thereafter, Campbell waived
his right to a jury trial and elected to proceed with a bench trial.
{¶5} Following the bench trial, the trial court found Campbell guilty on all counts
and specifications in the A.D. case, except that it reserved judgment on the issue of
whether the sexually violent predator specification would apply. In the M.W. case, the
trial court found Campbell guilty on both counts of aggravated burglary, both counts of
These charges both included a notice of prior conviction, and a repeat
7
offender specification. One of the kidnapping charges included a sexual motivation
specification and a sexually violent predator specification.
This charge included a notice of prior conviction and a repeat offender specification. The
8
charge originally included a sexual motivation specification and sexually violent predator
specification but the state voluntarily dismissed those specifications.
This charge included a notice of prior conviction and a repeat offender
9
specification.
This charge included a notice of prior conviction, a repeat offender
10
specification, and a sexually violent predator specification.
M.W. is a transgender person who is physiologically a male but presents as a female.
11
Because M.W. identifies as a female, M.W. is referred to throughout this opinion using feminine
pronouns.
kidnapping, misdemeanor assault (as a lesser included offense of felonious assault), and
rape. The trial court found Campbell not guilty of aggravated robbery in the M.W. case.
The trial court also convicted Campbell for the repeat violent offender and notice of prior
conviction specifications on each of the counts in the M.W. case and on the sexual
motivation specification on one of the kidnapping charges. And, as in the A.D. case, the
trial court deferred judgment on whether the sexually violent predator specifications
would apply.
{¶6} The trial court conducted a separate bench trial on the sexually violent
predator specifications. Following that trial, the court found Campbell guilty of all four
sexually violent predator specifications that applied to one count of kidnapping and one
count of rape in the A.D. case, and to one count of kidnapping and one count of rape in
the M.W. case.
{¶7} After determining that some of the charges in the case were subject to
merger, Campbell was sentenced to consecutive sentences as follows: (1) 12 years to life
for the rape in the M.W. case; (2) 5 years for the aggravated burglary in the M.W. case;
and (3) 12 years to life for the rape in the A.D. case.
{¶8} Campbell now appeals, setting forth ten assignments of error for our review:
I. The trial court violated Campbell’s due process rights when it improperly
joined two separate and distinct rape cases and when it improperly
considered the evidence of each case as other acts evidence in the other
case.
II. The trial court committed reversible error and violated Campbell’s
constitutional right to a fair trial by allowing the prosecutor to admit
prejudicial hearsay testimony.
III. The trial court committed reversible error and violated Campbell’s right
to a fair trial when it improperly permitted a police officer to bolster the
credibility of the alleged victim’s testimony.
IV. Campbell was denied his right to a fair trial as the result of prosecutorial
misconduct.
V. Campbell’s convictions involving M.W. are against the manifest weight
of the evidence.
VI. Campbell’s convictions involving A.D. are against the manifest weight
of the evidence.
VII. Campbell’s aggravated burglary convictions are not supported by
legally sufficient evidence.
VIII. Campbell was denied effective assistance of counsel at his initial trial.
IX. The trial court committed reversible error by allowing the prosecutor to
introduce prejudicial hearsay testimony at the trial on the sexually violent
predator specification.
X. Campbell was denied effective assistance of counsel at his trial on the
sexually violent predator specification.
We address the assignments of error out of order where practical. For the reasons that
follow, we overrule all assignments of error.
{¶9} In his first assignment of error, Campbell argues that the trial court erred in
joining the A.D. case and the M.W. case. A trial court “may order two or more cases be
tried together ‘if the offenses * * * could have been joined in a single indictment * * *.’”
State v. Harris, 8th Dist. Cuyahoga Nos. 98183 and 98184, 2013-Ohio-484, ¶ 8, quoting
Crim.R. 13. Two or more offenses may be joined in a single indictment if the offenses
“are of the same or similar character * * * or are based on two or more acts or
transactions connected together or constituting parts of a common scheme or plan, or are
part of a course of criminal conduct.” Crim.R. 8(A).
{¶10} Although the law generally favors the joinder of offenses that are of the
“same or similar character,” Crim.R. 14 provides that a defendant may move to sever the
charges on the basis that joinder will prejudice the defendant. Harris at ¶ 8, citing State
v. Lott, 51 Ohio St.3d 160, 163, 555 N.E.2d 293 (1990). The state may rebut this claim
by showing that evidence of the joined offenses would be admissible even if the counts
were severed, or by demonstrating that evidence of each crime joined at trial was so
simple and distinct that the factfinder was able to segregate the evidence between the two
offenses. Id. at ¶ 9, citing State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900
N.E.2d 565, ¶ 96. We will not overturn a trial court’s order denying a defendant’s
motion for severance unless the defendant demonstrates that his rights were prejudiced
and that the trial court abused its discretion in denying severance. Id., citing Diar at ¶
95.
{¶11} Applying the foregoing to the instant case, we conclude that Campbell has
not demonstrated that he was prejudiced by the joinder. Campbell waived his right to a
jury trial, and his case was tried to the bench:
The Ohio Supreme Court has repeatedly recognized that when a judge hears
evidence in a bench trial, the trial court must be presumed to have
“‘considered only the relevant, material, and competent evidence in arriving
at its judgment unless it affirmatively appears to the contrary.’” State v.
Post, 32 Ohio St.3d 380, 384, 513 N.E.2d 754 (1987), quoting State v.
M.W., 15 Ohio St.2d 146, 239 N.E.2d 65, paragraph two of the syllabus
(1968).
State v. Thomas, 8th Dist. Cuyahoga No. 90623, 2008-Ohio-6148, ¶ 34. Campbell has
not pointed out anything in the record that would lead us to conclude that the trial court
considered improper evidence in determining Campbell’s guilt.
{¶12} Campbell argues that he was prejudiced because the only reason that he
waived his constitutional right to a jury trial was because the trial court had granted the
state’s motion for joinder and denied his motion for severance. Assuming that this
would form the basis for a viable claim of prejudice, the record does not support
Campbell’s contention. Campbell concedes that there is no discussion on the record
regarding the reason why Campbell decided to waive his right to a jury trial. The first
assignment of error is overruled.
{¶13} In his second assignment of error, Campbell argues that the trial court erred
in allowing the prosecutor to introduce prejudicial hearsay. Campbell’s counsel did not
object to any of the evidence raised in this assignment of error, so our review is limited to
plain error. State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 52.
Under Crim.R. 52(B), “[p]lain errors or defects affecting substantial rights may be
noticed although they were not brought to the attention of the court.” But even if an
error exists, Campbell bears the burden of demonstrating that the outcome of the trial
clearly would have been different but for the error. See State v. Long, 53 Ohio St.2d 91,
372 N.E.2d 804 (1978), paragraph two of the syllabus.
{¶14} “The main premise behind the hearsay rule is that the adverse party is not
afforded the opportunity to cross-examine the declarant.” State v. Primeau, 8th Dist.
Cuyahoga No. 97901, 2012-Ohio-5172, ¶ 69. For this reason, we have found hearsay
errors to be harmless where the defense had the opportunity to cross-examine the
declarant. Id. See also State v. Thompson, 8th Dist. Cuyahoga No. 99846,
2014-Ohio-1056, ¶ 31.
{¶15} In this case, all of the alleged hearsay that Campbell objects to involves
statements made by A.D. and M.W. Both A.D. and M.W. testified at trial and were
subject to cross-examination. Accordingly, assuming Campbell is correct that
inadmissible hearsay was entered into evidence, Campbell cannot demonstrate that there
was plain error.
{¶16} Furthermore, when the trial court is the trier of fact, we presume that the
judge disregards improper hearsay evidence unless there is affirmative evidence in the
record to the contrary. State v. Crawford, 8th Dist. Cuyahoga No. 98605,
2013-Ohio-1659, ¶ 61. Campbell has not pointed to any statements made by the trial
court that would lead us to conclude that the trial court considered inadmissible hearsay
evidence in reaching its decision. For the aforementioned reasons, we overrule the
second assignment of error.
{¶17} In his third assignment of error, Campbell argues that the trial court erred by
improperly permitting a police sergeant to bolster the credibility of A.D.’s testimony.
Sgt. Denise DeBiase of the Richmond Heights Police Department spoke with A.D.
following the rape. Sgt. DeBiase testified for the prosecution at trial and testified that
A.D. “was very honest” in telling her that A.D. and Campbell had smoked marijuana prior
to the rape. Tr. 248-249. Such testimony is inadmissible, because “[i]t is undisputed
that a police officer may not testify as to a witness’s veracity.” State v. Williams, 8th
Dist. Cuyahoga No. 95796, 2011-Ohio-5483, ¶ 56.
{¶18} Campbell asserts that his counsel never objected to this testimony, but the
record reveals that defense counsel did, in fact, raise an objection. Tr. 249. The
prosecutor then said, “Never mind, I withdraw it.” Id. The trial court did not rule on the
objection, but we presume that the trial court followed the rules of evidence. We,
therefore, conclude that, in its role as factfinder, the trial court did not consider DeBiase’s
testimony that A.D. was “was very honest.” See State v. Corbin, 8th Dist. Cuyahoga No.
82266, 2004-Ohio-2847, ¶ 10-19. Accordingly, we overrule the third assignment of
error.
{¶19} In his fourth assignment of error, Campbell argues that he was denied his
right to a fair trial due to prosecutorial misconduct. When reviewing a claim of
prosecutorial misconduct, this court’s task is to determine whether the comments and
questions by the prosecution were improper and, if so, whether they prejudiced the
appellant’s substantial rights. State v. Treesh, 90 Ohio St.3d 460, 480, 739 N.E.2d 749(2001). A conviction will not be reversed based on prosecutorial misconduct unless the
misconduct can be said to have deprived the appellant of a fair trial based on the entire
record. Lott, 51 Ohio St.3d at 166, 555 N.E.2d 293. “The touchstone of analysis ‘is the
fairness of the trial, not the culpability of the prosecutor.’” State v. Gapen, 104 Ohio St.3d
358, 2004-Ohio-6548, 819 N.E.2d 1047, ¶ 92, quoting Smith v. Phillips, 455 U.S. 209,
219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). Because Campbell’s counsel did not raise any
objections at trial based on prosecutorial misconduct, we review Campbell’s arguments
under the plain-error standard of review. See Hale, 119 Ohio St.3d 118,
2008-Ohio-3426, 892 N.E.2d 864, at ¶ 52.
{¶20} Campbell argues that the prosecutor made a number of improper statements
during closing arguments. But because this was a bench trial, we presume that the trial
court was able to separate the wheat from the chaff. If the prosecutor made improper
comments during closing arguments, we presume that the trial court did not consider
those comments in reaching its verdict, unless the defendant marshals affirmative
evidence to the contrary. See State v. Nelson, 8th Dist. Cuyahoga No. 81286,
2003-Ohio-559, ¶ 21-24. Campbell has not effectively rebutted that presumption.
Moreover, assuming that improper comments were made, Campbell cannot demonstrate
that the outcome of the trial would have been different but for these comments. Finding
no plain error, we overrule the fourth assignment of error.
{¶21} In Campbell’s eighth assignment of error, he argues that he received
ineffective assistance of counsel at his initial trial. A criminal defendant has the right to
effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984). To demonstrate ineffective assistance of counsel, a
defendant must satisfy both parts of a two-prong test. Id. at 687. The first prong
requires that the defendant show that his trial counsel’s performance was so deficient that
the attorney was not functioning as the counsel guaranteed by the Sixth Amendment to
the United States Constitution. Id.{¶22} Under the second prong, the defendant must establish that counsel’s
“deficient performance prejudiced the defense.” Id. We determine prejudice by
analyzing whether “there is a reasonable probability that but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Id. at 694.
“Reasonable probability” is defined as probability sufficient to undermine confidence in
the outcome. Id. The failure to prove either prong of the Strickland test is fatal to a
claim of ineffective assistance. Id. at 697.
{¶23} Campbell argues that his counsel was ineffective at his initial trial because
he repeatedly failed to object to inadmissible and prejudicial evidence as well as improper
prosecutorial arguments. The evidence and prosecutorial arguments that Campbell
alludes to are the same ones that Campbell raises in his second, third, and fourth
assignments of error.
{¶24} With regard to the bolstering, defense counsel did object, so Campbell
cannot show that counsel was deficient. And a review of the record does not convince us
that counsel’s performance affected the outcome of the trial, especially in light of the fact
that the case was tried to the bench.
{¶25} Campbell argues that his counsel failed to object to corroborative hearsay.
But the declarants were the two victims, both of whom testified, in detail, as to how
Campbell had raped them. The trial court could have found the victims’ testimony
credible even without any corroborative testimony. And we presume that the trial court
disregarded any inadmissible hearsay testimony. We similarly presume that the trial
court disregarded any improper statements made by the prosecutor during closing
arguments. For these reasons, we cannot say that there is a reasonable probability that
without the alleged errors, the outcome of the trial would have been different.
Accordingly, we overrule the eighth assignment of error.
{¶26} In his tenth assignment of error, Campbell argues that he received
ineffective assistance of counsel at his trial on the sexually violent predator specification.
Applying the Strickland standard, we conclude that Campbell cannot demonstrate that he
was prejudiced by any of his counsel’s alleged deficiencies. 12 R.C. 2971.01(H)(1)
defines a “sexually violent predator” as “a person who, on or after January 1, 1997,
commits a sexually violent offense and is likely to engage in the future in one or more
sexually violent offenses.”
{¶27} Before the trial on the sexually violent predator specification commenced,
the trial court indicated that it was unclear on whether it could find that the specification
applied based on the underlying convictions alone. The state pointed out to the trial
12
Campbell argues that we should apply United States v. Cronic, 466 U.S. 648, 104 S.Ct.
2039, 80 L.Ed.2d 657 (1984), to this assignment of error because there was an actual breakdown of
the adversarial process during the trial on the sexually violent predator specification. We are
unconvinced. Cronic “stands for the proposition that there are rare cases involving Sixth
Amendment right to counsel violations, which are presumptively prejudicial.” State v. Dobson, 8th
Dist. Cuyahoga No. 92669, 2010-Ohio-2339, ¶ 16. Such cases exist where there is a complete
denial or absence of counsel or where counsel completely fails to test the prosecution’s case. Id.Campbell’s counsel was present, participated in the trial, and cross-examined both witnesses. Cronic
is inapplicable.
court that under State v. Boynton, 8th Dist. Cuyahoga No. 93784, 2010-Ohio-4670, the
current version of the statute “allows an offender to be classified and sentenced as a
sexually violent predator based on the conviction of the underlying offense contained in
the indictment.” Id. at ¶ 5.
{¶28} Campbell argues that his counsel was deficient because he was not
up-to-date on current law. In support of this argument, Campbell points out that his
counsel argued that the underlying convictions should not be considered in determining
whether the specification should be applied. But even if Campbell’s counsel misstated
the law, we fail to see how Campbell was prejudiced by this error. Counsel’s mistaken
view of the law resulted in counsel making an argument that, if true, would have favored
Campbell. And even if counsel had known the law under Boynton, counsel could not
have changed the fact that Campbell had been convicted for rape in the two underlying
cases and that the trial court could find that Campbell was a sexually violent predator
based on those convictions.
{¶29} Campbell also argues that his counsel was ineffective in failing to object to
hearsay testimony. The state put on two witnesses, both detectives. The first detective
testified about the facts underlying Campbell’s earlier conviction for sexual battery, and
Campbell argues that his counsel should have objected to portions of this testimony on
the basis that it was inadmissible hearsay. The second detective testified about
Campbell’s subsequent conviction for failing to register as a sex offender following his
release from prison on the sexual battery conviction. The state also entered into evidence
two journal entries setting forth his convictions in these two cases. Campbell did not
dispute that he was convicted of the offenses that were set forth in the journal entries.
{¶30} We conclude that the result of the proceeding would not be different even if
counsel had raised hearsay objections. The trial court could easily determine that the
sexually violent predator specification applied in light of the two journal entries that were
admitted into evidence along with the two rape convictions in the A.D. case and the M.W.
case. And, further, we presume that the trial court, as the trier of fact, disregarded any
inadmissible hearsay evidence. See Crawford, 8th Dist. Cuyahoga No. 98605,
2013-Ohio-1659 at
¶ 61. The tenth assignment of error is overruled.
{¶31} We also overrule the ninth assignment of error. Campbell argues here that
the trial court erred in allowing the prosecutor to introduce prejudicial hearsay testimony
at the trial on the sexually violent predator specification. This is the same hearsay
testimony that Campbell raises in the tenth assignment of error. Because trial counsel
did not object to the testimony, our review is limited to plain error. Hale, 119 Ohio St.3d
118, 2008-Ohio-3426, 892 N.E.2d 864, at ¶ 52.
{¶32} As discussed earlier, the state presented ample other evidence to
demonstrate that the sexually violent predator specification could apply to Campbell.
The alleged hearsay testimony pertained to a conviction that was also proven through the
admission of a journal entry. Furthermore, we presume that the trial court disregarded
any inadmissable hearsay evidence. Accordingly, Campbell cannot demonstrate that the
outcome of the trial would be different but for the error. The ninth assignment of error is
overruled.
{¶33} In his seventh assignment of error, Campbell argues that his convictions for
aggravated burglary were not supported by legally sufficient evidence. We disagree.
When reviewing the record on a sufficiency challenge, “‘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. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 77,
quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the
syllabus.
{¶34} In the A.D. case, Campbell was convicted on one count of aggravated
burglary. In the M.W. case, Campbell was convicted on two counts of aggravated
burglary; one count was in conjunction with the date of the rape incident and the other
was in conjunction with the date of the assault incident. All of the aggravated burglary
charges were pursued under R.C. 2911.11(A)(1), which required the state to prove that
Campbell “by force, stealth, or deception, * * * trespass[ed] in an occupied structure * * *
with [the] purpose to commit * * * any criminal offense,” and inflicted, or attempted to
inflict, or threatened to inflict physical harm on another. Campbell points out that he was
invited into the apartments on all three occasions.
{¶35} We have consistently read the Ohio Supreme Court’s decision in State v.
Steffen, 31 Ohio St.3d 111, 115, 509 N.E.2d 383 (1987), as standing for the proposition
that “a violent crime committed in the residence of one other than the defendant always
constitutes aggravated burglary (i.e., the commission of the crime terminates the privilege
to remain in the home).” State v. Mitchell, 8th Dist. Cuyahoga No. 94287,
2010-Ohio-5775, ¶ 15. See also State v. Johnson, 8th Dist. Cuyahoga No. 97698,
2012-Ohio-3812, ¶ 18 (relying on Steffen in affirming an aggravated burglary conviction
and concluding that, even if the defendant had permission to enter the victim’s residence,
that permission was revoked when the defendant committed an “act of violence against a
person who has the authority to revoke the privilege of initial entry”); State v. Hill, 8th
Dist. Cuyahoga No. 95379, 2011-Ohio-2523, ¶ 25 (same).
{¶36} The state’s evidence demonstrated that, on all three occasions, Campbell
committed a violent crime against the victim while inside the victim’s residence. In the
A.D. case, the victim testified that Campbell choked and raped A.D. in her apartment. In
the M.W. case, the victim testified that Campbell raped her in her apartment. The victim
testified that on a separate occasion, Campbell repeatedly punched her while in her
apartment. Regardless of how he initially gained entry, any permission given to
Campbell to enter the apartments was revoked once he committed the violent acts against
the victims.13 See Mitchell at ¶ 15.
{¶37} Campbell’s position on appeal is that the case law in our district reads
Steffen too broadly, and that we should, therefore, reconsider our interpretation of Steffen.
13
Campbell does not challenge the sufficiency of the evidence for the rape convictions or
assault convictions, and so, for purposes of this analysis, we presume that the acts of violence took
place.
But stare decisis compels us to follow our prior decisions and so we must decline
Campbell’s invitation. Construing the evidence in the light most favorable to the
prosecution, the evidence was sufficient to sustain each conviction of aggravated burglary
and we overrule the seventh assignment of error.
{¶38} In his fifth assignment of error, Campbell argues that the convictions
stemming from the M.W. case are against the manifest weight of the evidence. In
evaluating whether a conviction is against the manifest weight of the evidence, this court
sits as the 13th juror. We are tasked with reviewing the entire record, weighing the
evidence and all reasonable inferences, considering the witnesses’ credibility, and
determining whether the jury clearly lost its way such that there was a manifest
miscarriage of justice. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541(1997). We should grant a new trial only in the exceptional case where the evidence
weighs heavily against the conviction. Id.{¶39} Although we consider the credibility of witnesses in a challenge to the
manifest weight of the evidence, we do so with the caveat that the trier of fact is in the
best position to determine a witness’ credibility through its observation of his or her
demeanor, gestures, and voice inflections. State v. Williams, 8th Dist. Cuyahoga No.
98210, 2013-Ohio-573, ¶ 31, citing State v. Clark, 8th Dist. Cuyahoga No. 94050,
2010-Ohio-4354, ¶ 17.
{¶40} Campbell argues that his convictions in the M.W. case are against the
manifest weight of the evidence because M.W. was not a credible witness. Campbell
asserts that M.W.’s rape allegation makes “little sense.” In support of this argument
Campbell points out the following: (1) Campbell and M.W. were friends; (2) Campbell
had never suggested any sexual interest in M.W.; (3) Campbell was heterosexual; (4)
M.W. is a transgender person and is physiologically a man; (5) there was no evidence of
any problems between Campbell and M.W.; and (6) the alleged rape was “unprovoked”
and “came out of nowhere.” Campbell Br. 30. Campbell asserts that M.W.’s
allegations are “bizarre” and that they are unsupported by any physical evidence.
{¶41} We first note that violent crimes often make “little sense” and a guilty
verdict is not against the manifest weight of the evidence simply because the defendant’s
violent conduct is irrational or because there is no evidence that the victim“provoked” the
defendant. If anything here makes “little sense,” it is Campbell’s argument that he can
avoid a guilty verdict for raping a transgender person simply by asserting that he is
heterosexual.14 And we see no connection between M.W.’s credibility as a witness and
the fact that Campbell had not expressed a sexual interest in M.W. prior to the rape.
{¶42} Furthermore, Campbell’s convictions are not against the manifest weight of
the evidence due to a lack of physical evidence. M.W. testified that she did not seek
medical attention following the rape. The evidence for the rape in this case was based on
the victim’s testimony. “Hospital admissions do not, per se, have any relationship to
credibility.” In re D.B., 8th Dist. Cuyahoga No. 84831, 2005-Ohio-1864, ¶ 14. The
14
And it is not even clear from the record that Campbell was aware of the fact that M.W. was
physiologically a man. M.W. testified that she presented as a woman and that she had never
indicated to Campbell that she was a transgender person.
evidence in the M.W. case does not weigh heavily against conviction and so we overrule
the fifth assignment of error.
{¶43} We also overrule Campbell’s sixth assignment of error, which is based on
his assertion that the convictions stemming from the A.D. case are against the manifest
weight of the evidence. Campbell asserts that A.D. was not a credible witness and that
her claim that she was raped is unsupported by the medical records. Campbell argues
that the record supports his contention that A.D. and Campbell engaged in consensual
sex.
{¶44} First, Campbell points out that there was no evidence of injuries or trauma
to A.D.’s genitalia. But “a physical injury is not a condition precedent to a conviction for
rape; not all rape victims exhibit signs of physical injury.” State v. Leonard, 8th Dist.
Cuyahoga No. 98626, 2013-Ohio-1446, ¶ 46. Furthermore, the state presented evidence
of other physical injuries that corroborated A.D.’s testimony that the sexual contact was
not consensual. A.D. testified that just before the rape, Campbell choked her almost to
the point of unconsciousness. Trial testimony established that A.D. went to two different
hospitals following the rape. A.D. first went to Richmond Medical Center and reported
that she had been choked and raped, and she was admitted into the emergency room.
Because there was no nurse trained to perform a sexual assault examination, A.D. was
told to go to Hillcrest Hospital. A.D. was later examined by a sexual assault nurse at
Hillcrest.
{¶45} Two different nurses, one from Richmond Medical and one from Hillcrest,
both testified at trial that they observed petechiae around A.D.’s eyes and behind her ears.
The trial court heard testimony that petechiae are broken blood vessels appearing as red
dots on the skin, and that petechiae around the eyes and ears is often caused by
strangulation.
{¶46} Campbell counters that there was also testimony that petechiae is not always
caused by strangulation. He further notes that A.D. had red marks on her face at the time
of trial that was almost a year after the alleged rape. A.D. testified that she had red
bumps on her face at trial because she was under stress. According to Campbell, the red
marks that the nurses found on A.D.’s face were these same stress-related marks and not
petechiae. Campbell asserts that A.D. was under extreme stress at the time that she
engaged in consensual sex with Campbell, because she was having financial and
relationship difficulties.
{¶47} But based on the record, the factfinder could determine that the red marks
on A.D.’s face at trial were different from the petechiae reported by the nurses. The
testimony established that petechiae is generally flat and is beneath the skin’s surface,
whereas acne is textured and appears on the skin’s surface. Two trained, medical
professionals independently identified petechiae around A.D.’s eyes and behind her ears
at the time that A.D. reported that she was raped. In contrast, the red marks on A.D.’s
face at trial were described as “pimples.”
{¶48} Campbell also argues that A.D.’s testimony was not credible because her
initial testimony that she received medical treatment for bleeding from scratches on her
neck turned out to be false. Although the nurse at Hillcrest noted abrasions on A.D.’s
neck, no injuries were noted by the nurse or doctor from Richmond Medical, the first
hospital where A.D. went for treatment. To the extent that this can be characterized as
inconsistent testimony, this is not the kind of inconsistency that would lead us to conclude
that the evidence weighed heavily against conviction. A.D. testified that Campbell
strangled her and that she sustained injury to her neck as a result of that strangulation.
The medical records from Hillcrest indicating abrasions on A.D.’s neck supported her
allegation. We conclude that the medical evidence did not negatively impact on A.D.’s
credibility as a witness. To the contrary, the medical evidence supported A.D.’s claim
that she was choked and that the sex was not consensual.
{¶49} Campbell also attacks A.D.’s credibility because she was addicted to drugs,
she owed Campbell money, and she had no financial means to pay off a drug debt she
owed to Campbell. Campbell claims that A.D. engaged in consensual sex with Campbell
in order to pay off her debt. “On issues of credibility, where there is no evidence [that]
the [factfinder] lost its way in its assessment and resolving conflicts in evidence, we defer
to the [factfinder].” State v. Ortiz, 8th Dist. Cuyahoga No. 89952, 2008-Ohio-4120,
¶ 25. The trial court was apprised of A.D.’s drug addiction and her financial situation.
As the trier of fact, the trial court was in the best position to observe A.D. and to assess
her credibility. A.D. was not inherently incapable of rendering credible testimony merely
because she was addicted to drugs and lacked money to pay off her drug debt. For the
aforementioned reasons, we conclude that the evidence in the A.D. case does not weigh
heavily against conviction and so we overrule the sixth assignment of error.
It is ordered that appellee recover from appellant the costs taxed herein.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution. Defendant’s convictions affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
__________________________________________
KENNETH A. ROCCO, JUDGE
SEAN C. GALLAGHER, P.J., and
TIM McCORMACK, J. CONCUR