State v. Thomas , 2015 Ohio 3226 ( 2015 )

[Cite as State v. Thomas, 2015-Ohio-3226.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 101797
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ROBERT LAMAR THOMAS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-13-579375-A
BEFORE: E.T. Gallagher, J., Jones, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: August 13, 2015
ATTORNEY FOR APPELLANT
J. Charles Ruiz-Bueno
Charles Ruiz-Bueno Co., L.P.A.
36130 Ridge Road
Willoughby, Ohio 44094
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Edward R. Fadel
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:
{¶1} Defendant-appellant, Robert Lamar Thomas (“Thomas”), appeals from his
convictions and sentence following a jury trial. Thomas raises four assignments of error
for review:
1. Defendant-appellant was prejudiced by the ineffective assistance of his
trial counsel.
2. The trial court committed prejudicial error by admitting evidence in
contravention to the Ohio Rules of Evidence.
3. The evidence adduced at trial was insufficient to sustain a verdict
against defendant-appellant.
4. The trial court committed prejudicial error by sentencing
defendant-appellant to an excessive term of imprisonment.
{¶2} After careful review of the record and relevant case law, we affirm in part,
reverse in part, and remand for further proceedings consistent with this opinion.
I. Procedural and Factual History
{¶3} On October 31, 2013, Thomas was named in a 19-count indictment, charging
him with 11 counts of rape in violation of R.C. 2907.02(A)(1)(b), with a furthermore
specification that Thomas purposely compelled 12-year-old victim, H.W., to submit by
force or threat of force; seven counts of kidnapping in violation of R.C. 2905.01(A)(4),
with sexual motivation specifications; and one count of disseminating matter harmful to
juveniles in violation of R.C. 2907.31(A)(3). The indictment specified that Thomas
engaged in sexual conduct with H.W. on separate occasions from August 15, 2012
through October 31, 2012. On June 13, 2014, a jury trial commenced where the
following evidence was adduced.
{¶4} S.W. (“Mother”), testified that she is the mother of four children including
H.W. Mother stated that she was in an “on and off” relationship with Thomas for over
six years. During the times relevant to this case, Thomas was residing with Mother and
her children and was given the responsibility to watch her children while she worked
nights as a bartender.
{¶5} H.W., born July 7, 2000, suffers from PHACE syndrome 1 and has
experienced “social problems” since she was a young girl due to her health condition.
Mother testified that she began to notice further changes in her daughter’s demeanor just
as H.W. was entering her sixth-grade school year. Specifically, H.W. had become
increasingly argumentative and withdrawn.
{¶6} In October 2012, Mother went to her daughter, then 12 years old, to discuss
her recent behavior. According to Mother, H.W. immediately began to cry and stated
that she was having sex with Thomas in the house. Mother testified that she “freaked
out” and confronted Thomas, who denied the allegations. Thereafter, Mother attempted
to take H.W. to the hospital. H.W., however, recanted her allegations against Thomas
before they left the house.
1 PHACE syndrome is the association of a large hemangioma, usually on the
face or neck, in combination with one or more other birth defects. People with
PHACE syndrome may have posterior fossa brain malformations, hemangioma,
arterial lesions (blood vessel abnormalities in the head or neck), cardiac (heart)
abnormalities/aortic coarctation, and eye abnormalities.
{¶7} In the weeks that followed, H.W. continued to exhibit signs of emotional
instability. Her sleep patterns were irregular, she was depressed and withdrawn, and did
not want to shower. Mother testified that H.W. continued to go “back and forth” on her
accusations against Thomas. As a result, Mother scheduled an appointment with H.W.’s
psychiatrist. During this time period, Thomas was living in the house, but “disappeared”
two days before H.W. was scheduled to meet with her psychiatrist to address her ongoing
behavioral issues. In November 2012, Mother was urged by H.W.’s psychiatrist to
notify the police of the accusations.
{¶8} On cross-examination, Mother was questioned at length about several
instances where H.W. had demonstrated untruthfulness. Significantly, Mother
confirmed that when H.W. was in the fourth grade she alleged that a boy in her class had
inappropriately touched her in the bathroom, but later admitted that she had “made it up.”
H.W. also lied to her mother about being on a dating website and had previously lied to
school officials that Mother was abusing her at home.
{¶9} H.W. testified that in August 2012, just before she entered the sixth grade,
Thomas began “sexually abusing [her].” Throughout her testimony, H.W. described six
specific instances of sexual abuse.
{¶10} H.W. stated that the first incident occurred after she had a bad dream and
went downstairs to talk to Thomas. H.W. told Thomas that it was a “sexual dream” and
that the man in the dream “made [her] bleed.” Thereafter, Thomas and H.W. went into
the kitchen while talking about her dream. Thomas walked up to H.W. and touched her
stomach while standing face-to-face. H.W. testified that Thomas made her feel nervous
and confused. Thomas then took H.W. upstairs to his bedroom and put on a
pornographic video. While the video was playing, Thomas began to rub H.W.’s leg.
Thomas then took off H.W.’s pants and underwear and touched her legs and vagina with
his hand. H.W. testified that she felt “frozen.” H.W. stated that Thomas made her give
him oral sex and then put his penis in her vagina. Additionally, Thomas “licked [her]
breasts and vagina.” H.W. stated that he had slurred speech during this incident.
{¶11} The day after the first incident was H.W.’s first day of the sixth grade at
school. H.W. testified that Thomas picked her up from school and stated that what they
did the night before was wrong and that they should not do it again. However, the
following day, Thomas woke H.W. up while Mother was at work and “put his penis in
[her] vagina.” H.W. stated that she held her favorite stuffed animal, Amy, during this
assault. H.W. testified that she could not remember if anything came out of Thomas’s
penis but that he used a rag to wipe off her sheets when he was finished.
{¶12} The third incident H.W. described occurred in the downstairs living room.
H.W. testified that Thomas “put his penis in my mouth” while her brother and sisters
were upstairs. H.W. testified that Thomas ejaculated and “stuff” ended up on the carpet
in the living room.
{¶13} The fourth incident occurred while H.W. was packing clothes in the
basement to visit her father. H.W. testified that Thomas came down to the basement and
“had sex with [her] on the dirty clothes.”
{¶14} Finally, H.W. testified that Thomas sexually abused her twice in the same
day. She first indicated that Thomas had vaginal sex with her in her mother’s bedroom.
The second incident she referred to was later that night when Thomas woke her up while
she was sleeping in her bed. H.W. remembered that “Nick at Nite” was playing on the
television in her bedroom when Thomas woke her up. H.W. stated that Thomas’s
“mouth and penis touched [her] vagina.” Thomas also rubbed her vagina with his
finger.
{¶15} H.W. stated that she first disclosed these incidents to Mother while she was
in her bedroom. H.W. could not remember what led her to tell her mother about the
sexual abuse. H.W. testified her mother was “shocked” and immediately confronted
Thomas. According to H.W., Thomas denied the allegations, which made her feel
“mad.”
{¶16} On December 3, 2012, the Lakewood Police Department commenced its
investigation into the allegations raised against Thomas. After speaking with Mother
and H.W., the police collected evidence from the house, including H.W.’s bedding. The
following day, Officer Nicholas Rebraca (“Officer Rebraca”) returned to collect a bed
sheet that Mother alleged had not been washed since the time of the incidents.
Subsequently, Detective Larry Kirkwood (“Det. Kirkwood”) returned to the residence to
cut a piece of carpet from Mother’s living room for forensic analysis.
{¶17} Christine Scott (“Scott”), a forensic scientist employed with the Cuyahoga
County Medical Examiner’s Office, testified that she specializes in forensic DNA
analysis. Scott stated that she performed a DNA analysis on several items submitted by
the Lakewood Police Department, including carpet from the living room and a comforter,
bed sheet, pillow case, and bed skirt from H.W.’s bed. In her forensic report, Scott
found that no seminal material was detected in the carpet from the living room, or on
H.W.’s comforter, pillow case, or bed skirt. However, Scott testified that seminal
material was identified on a section of H.W.’s bed sheet. Scott compared the seminal
material found on the bed sheet to the buccal swab standard taken from Thomas and
concluded that “the DNA profile obtained from the sperm fraction on [H.W.’s bed sheet]
matches the DNA profile of [Thomas]” to “a reasonable degree of scientific certainty.”
{¶18} With regards to the same cutting from the bed sheet, epithelial fractions
were tested for DNA. Scott explained that epithelial fractions “contain all the cells from
your body such as skin cells” and “cells from vaginal secretions.” Scott testified that the
DNA profile obtained from the epithelial fraction was a mixture of major and minor
contributors. The major contributor matched the profile of Thomas. Further, Scott
concluded that, after comparing the DNA profile of the minor contributor to the buccal
swab standards taken from Mother and H.W., H.W. could not be excluded as the minor
contributor. Mother was excluded as the minor contributor.
{¶19} Deana Davis (“Davis”) testified that she is employed as a social worker with
the Division of Children and Family Services and was assigned to H.W.’s case in
December 2012. Davis testified that she met with H.W. on two separate occasions and
discussed H.W.’s initial disclosure to her mother and relevant details of each incident of
sexual abuse. According to Davis, H.W. had a difficult time discussing the sexual abuse
and had a “flat affect.” Davis testified that her primary goal was to make the appropriate
mental health referrals to help H.W. cope with the trauma and move forward in life.
{¶20} In the course of completing her assessment in this case, Davis collected
background information into H.W.’s mental and physical health and learned that H.W.
made suicide attempts after the sexual abuse allegedly occurred. Davis testified that the
severity of H.W.’s mental health issues caused her to be hospitalized on two separate
occasions.
{¶21} Dr. Mark Feingold (“Dr. Feingold”) is employed by MetroHealth Medical
Center and is a member of the Department of Pediatrics and the Director of Child
Protection Services. Dr. Feingold testified that he met with H.W. and her mother on
December 17, 2012, to assess H.W.’s allegations of sexual abuse. Dr. Feingold testified
that he received notable background information, including H.W.’s struggle with PHACE
syndrome. During the evaluation, Dr. Feingold was informed that H.W. was abused six
to seven times in various rooms of the house. H.W. stated that she did not bleed but that
it hurt when she urinated after the abuse and her stomach would hurt. Dr. Feingold
testified that this was a noteworthy disclosure because a 12-year-old child would not
normally describe this pain unless abuse had taken place.
{¶22} At the conclusion of trial, the jury found Thomas guilty of rape as indicted
in Counts 1, 2, 5, 12, and 13, and that he committed the acts by purposely compelling
H.W. to submit by force or threat of force. Thomas was also found guilty of kidnapping
with sexual motivation specifications as indicted in Counts 3, 6, and 14. He was found
not guilty of all remaining counts.
{¶23} At sentencing, the trial court merged Thomas’s kidnapping and rape
convictions. The state elected to proceed with sentencing on the rape convictions, and
Thomas was sentenced to 25 years to life on each count. Four of the rape convictions
were run concurrently to each other, but consecutive to the fifth rape conviction, for a
total term of imprisonment of 50 years to life.
{¶24} Thomas now appeals from his convictions and sentence.
II. Law and Analysis
A. Ineffective Assistance of Counsel
{¶25} In his first assignment of error, Thomas argues he received ineffective
assistance of counsel throughout the trial proceedings.
{¶26} To establish ineffective assistance of counsel, Thomas must demonstrate
that (1) counsel’s representation was deficient in that it “fell below an objective standard
of reasonableness,” and (2) there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. Strickland
v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.
Sanders, 94 Ohio St.3d 150, 151, 761 N.E.2d 18 (2002). In Ohio, an attorney properly
licensed is presumed competent. State v. Lott, 51 Ohio St.3d 160, 174, 555 N.E.2d 293(1990). The defendant has the burden of proof and must overcome the strong
presumption that counsel’s performance was adequate or that counsel’s action might be
sound trial strategy. State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985).
{¶27} Thomas first argues that defense counsel was ineffective for failing to
“reasonably communicate with him regarding his rights and the full gamut of defenses
and mitigation that could be taken.” After careful review, there is no evidence in the
record to prove or disprove Thomas’s assertions. In the absence of evidence on the
record to suggest otherwise, we must presume defense counsel adequately communicated
with Thomas throughout this case. In re C.B., 9th Dist. Lorain No. 14CA010588,
2014-Ohio-4618, ¶ 10. Accordingly, this issue is unresolvable on direct appeal because
it requires evidence outside the record. State v. Burton, 8th Dist. Cuyahoga No. 100716,
2014-Ohio-4207, ¶ 14, citing State v. Rivas, 8th Dist. Cuyahoga No. 100044,
2014-Ohio-833, ¶ 10.
{¶28} Next, Thomas asserts that his best interests were not taken into account.
Thomas contends that defense counsel “failed to file requested motions, such as to inspect
the grand jury transcript or to exclude the bed sheet that was provided after the police
investigation of the scene had concluded.”
{¶29} Generally, grand jury proceedings are secret, and an accused is not entitled
to inspect grand jury transcripts during trial unless the ends of justice require it, and the
defense shows that a particularized need for disclosure exists that outweighs the need for
secrecy. State v. Davis, 38 Ohio St.3d 361, 528 N.E.2d 925 (1988); State v. Greer, 66
Ohio St.2d 139, 420 N.E.2d 982 (1981). A “particularized need” exists when
circumstances reveal a probability that the failure to provide grand jury testimony will
deny the accused a fair trial. Id. From the record, we are unable to determine to what
extent the grand jury testimony would have benefitted counsel in his efforts to
cross-examine state’s witnesses. Further, Thomas has provided no basis for this court to
conclude he was denied a fair trial without the grand jury transcripts. Thus, we are
unable to conclude that counsel’s failure to seek the witnesses’ grand jury testimony
constituted ineffective assistance.
{¶30} Moreover, Thomas has not established that defense counsel’s failure to file a
motion to exclude the bed sheet from evidence fell below an objective standard of
reasonable representation. Thomas has not articulated a legal basis for excluding the
bed sheet. The record demonstrates that the bed sheet was lawfully recovered from
Mother’s home by the Lakewood police following its investigation into the allegations
raised by H.W. Under these circumstances it is probable, and reasonable, for trial
counsel to conclude that a motion to exclude the evidence would have been futile and
strategically flawed. See State v. Morton, 8th Dist. Cuyahoga No. 100267,
2014-Ohio-1434, ¶ 12.
{¶31} Finally, Thomas argues defense counsel was ineffective for failing to
subpoena certain medical health professionals, including a DNA expert provided by the
trial court at the state’s expense, and a physician at Fairview Hospital whom Thomas
claims performed a medical examination on H.W. However, the decision whether to
subpoena or call a witness falls squarely within the ambit of trial strategy and does not
constitute ineffective assistance absent a showing of prejudice. State v. Oliver, 101
Ohio App.3d 587, 594, 656 N.E.2d 348 (8th Dist.1995). Without more information, this
court has no basis to know how these medical professionals would have testified. See
State v. Short, 129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 119.
Presumably, defense counsel weighed all relevant factors and determined that the
testimony would not have benefitted Thomas at trial. Accordingly, Thomas cannot
demonstrate the requisite level of prejudice necessary to overcome counsel’s trial
strategy.
{¶32} Thomas’s first assignment of error is overruled.
B. Evidence
{¶33} In his second assignment of error, Thomas argues the trial court committed
prejudicial error by admitting evidence in contravention of the Ohio Rules of Evidence.
{¶34} “The admission or exclusion of relevant evidence rests within the sound
discretion of the trial court.” State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987),
paragraph two of the syllabus. An appellate court, therefore, generally reviews a trial
court’s decision pertaining to the admission of evidence for an abuse of discretion. State
v. Gale, 8th Dist. Cuyahoga No. 94872, 2011-Ohio-1236, ¶ 12, citing State v. Finnerty,
45 Ohio St.3d 104, 107, 543 N.E.2d 1233 (1989). An abuse of discretion implies that
the trial court’s attitude is unreasonable, arbitrary or unconscionable. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶35} As Thomas concedes, however, counsel did not object to the testimony
challenged within this assignment of error. Thus, our review is limited to plain error.
State v. Jackson, 92 Ohio St.3d 436, 444, 751 N.E.2d 946 (2001), citing State v.
Underwood, 3 Ohio St.3d 12, 444 N.E.2d 1332 (1983), syllabus; Crim.R. 52(B). An
appellate court recognizes plain error with the utmost caution, under exceptional
circumstances, and only to prevent a miscarriage of justice. State v. Pilgrim, 184 Ohio
App.3d 675, 2009-Ohio-5357, 922 N.E.2d 248, ¶ 58 (10th Dist.), citing State v. Diar, 120
Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 139.
{¶36} For an error to be a “plain error” under Crim.R. 52(B), it must satisfy three
prongs (1) there must be an error, meaning a deviation from a legal rule, (2) the error
must be “plain,” meaning an “obvious” defect in the trial proceedings, and (3) the error
must have affected “substantial rights,” meaning the error must have affected the outcome
of the trial. State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240.
{¶37} Thomas argues that the trial court erred by admitting hearsay testimony.
He first challenges the portion of Mother’s testimony in which she recounted what H.W.
said to her in October 2012 about the sexual abuse. More specifically, Thomas argues
the following statements made by Mother were impermissible hearsay:
She was crying and shaking, like she didn’t want to tell me.
***
She told me that she — somebody in the house — she was having sex with
somebody in the house. Like she had sex with somebody in the house.
And she told me that it was him, Bobby.”
{¶38} Similarly, Thomas challenges Officer Rebraca’s testimony that, in the
course of his investigation, Mother stated that H.W. had disclosed that she was having sex
with Thomas while Mother was at work. Thomas contends that the testimony was
“double hearsay.”
{¶39} Hearsay is defined as “a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Evid.R. 801(C). Pursuant to Evid.R. 802, hearsay is inadmissible unless it
falls within an exception provided by the rules of evidence. Should hearsay statements
be admitted improperly, however, such error does not necessarily require reversal of the
outcome of the trial if it was harmless. See Arizona v. Fulminante, 499 U.S. 279,
306-309, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991).
{¶40} After careful review, we find the challenged testimony contained hearsay
statements. However, without determining whether the statements fall under one of the
enumerated exceptions to the hearsay rule, we find the trial court’s admission of the
hearsay testimony to be harmless. The main premise behind the hearsay rule is that the
adverse party is not afforded the opportunity to cross-examine the declarant. See State v.
Primeau, 8th Dist. Cuyahoga No. 97901, 2012-Ohio-5172, ¶ 69. In this case, H.W.
testified at trial and was subjected to cross-examination about the conversation she had
with her mother and her possible motives for making a false allegation against Thomas.
Thus, Mother and Officer Rebraca’s testimony was cumulative and harmless beyond a
reasonable doubt. State v. Simmons, 8th Dist. Cuyahoga No. 98613, 2013-Ohio-1789, ¶
28, citing State v. Greer, 8th Dist. Cuyahoga No. 91983, 2009-Ohio-4228, ¶ 59.
{¶41} Thomas next challenges the state’s question during the redirect examination
of H.W. concerning whether she was married to Thomas at the time of the sexual abuse.
Thomas contends that the question was beyond the scope of cross-examination and was
only asked to cure the state’s failure to establish a necessary element of R.C.
2907.02(A)(1) during its case-in-chief. As a general rule, the scope of redirect
examination is limited to matters inquired into by the adverse party on cross-examination.
State v. Wilson, 30 Ohio St.2d 199, 204, 283 N.E.2d 632 (1972).
{¶42} After careful review of the record in its entirety, we are unable to conclude
that the trial court committed plain error by failing to restrict the scope of redirect
examination. Mother’s testimony contained numerous references to her romantic
relationship with Thomas, and H.W. testified that Thomas was her mother’s boyfriend.
Thus, notwithstanding the prosecutors question during redirect examination, we find
credible evidence in other portions of the record to establish that H.W. was not Thomas’s
spouse at the time the sexual abuse occurred. Any perceived error in permitting the
prosecution to question H.W. about her marital status during redirect examination is
therefore harmless.
{¶43} Finally, Thomas argues the trial court committed prejudicial error by
allowing social worker, Deana Davis, to make a statement of ultimate opinion.
Specifically, Thomas challenges Davis’s affirmative answer when she was asked whether
H.W.’s suicidal attempts began after the sexual abuse occurred. Thomas claims that
Davis’s response was “in direct contravention of the Ohio Rules of Evidence” because it
was “tantamount to a social worker’s expert opinion that Thomas’s abuse caused H.W. to
have suicidal behavior.”
{¶44} After reviewing the context in which the challenged statement was made,
we disagree with Thomas’s characterization of Davis’s testimony. At the time Davis
was questioned about H.W.’s suicide attempts, she was discussing the relevant
information she considered in assessing H.W.’s case, including H.W.’s medical history in
the months following her disclosure of the sexual abuse. Thus, Davis’s testimony that
H.W. attempted suicide after the sexual abuse was alleged to have occurred did not
amount to an expert opinion regarding an ultimate issue. Instead, Davis’s testimony was
a statement of fact based on her review of H.W.’s medical history and background
information. Accordingly, we find no error, plain or otherwise.
{¶45} Thomas’s second assignment of error is overruled.
C. Sufficiency and Manifest Weight of the Evidence
{¶46} In his third assignment of error, Thomas argues his convictions were not
supported by sufficient evidence and were against the manifest weight of the evidence.
{¶47} 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.
{¶48} In contrast to sufficiency, “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. 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, 175, 485
N.E.2d 717 (1st Dist.1983).
{¶49} We are mindful that the weight to be given the evidence and the credibility
of the witnesses are matters primarily for the trier of fact. State v. DeHass, 10 Ohio
St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. The trier of fact has
the authority to “believe or disbelieve any witness or accept part of what a witness says
and reject the rest.” State v Antill, 176 Ohio St.61, 67, 197 N.E.2d 548 (1964). “The
choice between credible witnesses and their conflicting testimony rests solely with the
finder of fact and an appellate court may not substitute its own judgment for that of the
finder of fact.” State v. Awan, 22 Ohio St.3d 120, 123, 489 N.E.2d 277 (1986).
{¶50} In this case, Thomas was found guilty of five counts of rape in violation of
R.C. 2907.02(A)(1)(b), which states in relevant part:
No 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.
{¶51} “Sexual conduct” means 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. R.C. 2907.01(A).
Penetration, however slight, is sufficient to complete vaginal or anal intercourse. Id.{¶52} Thomas’s rape counts contained a furthermore clause that Thomas
purposely compelled H.W. to submit by force or threat of force. R.C. 2901.01(A)(1)
defines “force” as “any violence, compulsion, or constraint physically exerted by any
means upon or against a person or thing.” To establish the element of force in a rape
case involving a minor child when the offender stands in a position of authority, neither
express threat of harm nor evidence of significant physical restraint need be proven.
State v. Dye, 82 Ohio St.3d 323, 695 N.E.2d 763 (1998), paragraph one of the syllabus.
Instead, it is the position of authority and power, in relationship with the child’s
vulnerability, that creates a unique situation of dominance and control in which explicit
threats and displays of force are unnecessary. State v. Eskridge, 38 Ohio St.3d 56, 526
N.E.2d 304 (1988), paragraph one of the syllabus. Thomas held a position of authority
over H.W. by virtue of his relationship to H.W.’s mother and as the babysitter while
H.W.’s mother was at work.
{¶53} Thomas was also found guilty of three counts of kidnapping in violation of
R.C. 2905.01(A)(4), which states in relevant part:
No person, by force, threat, or deception, or, in the case of a victim
under the age of thirteen or mentally incompetent, by any means, shall
remove another from the place where the other person is found or restrain
the liberty of the other person * * * [t]o engage in sexual activity * * * with
the victim against the victim’s will.
{¶54} As determined by the jury, Thomas’s convictions related to three separate
instances of sexual abuse (1) the first instance of abuse in Mother’s bedroom involving
vaginal sex and cunnilingus (Counts 1, 2, and 3), (2) the second instance of abuse in
H.W.’s bedroom after her first day of sixth grade (Counts 5 and 6), and (3) a subsequent
instance of abuse in H.W.’s bedroom involving vaginal sex and digital penetration
(Counts 12, 13, and 14).
{¶55} In challenging the evidence supporting his convictions, Thomas does not
argue that the prosecution failed to prove any of the necessary elements to sustain his
convictions. Instead, Thomas contends that his convictions were based on the testimony
of a untrustworthy victim — a matter not appropriate for a sufficiency challenge.
Indeed, “in a review of the sufficiency of the evidence, the court does not engage in a
determination of the witnesses’ credibility.” State v. Goff, 82 Ohio St.3d 123, 135, 694
N.E.2d 916 (1998). Nonetheless, we find that Thomas’s convictions were supported by
sufficient evidence.
{¶56} H.W. provided detailed testimony concerning three separate incidents where
Thomas, while acting as an authoritative figure, engaged in sexual conduct with her while
she was 12 years old. H.W. testified that the incidents took place in her mother’s
bedroom and in her bedroom and involved vaginal sex, digital penetration, and
cunnilingus. Moreover, forensic scientist Scott testified that the DNA profile obtained
from a sperm fraction found on H.W.’s bed sheet matched Thomas’s DNA profile.
Similarly, Scott testified that the DNA profile obtained from epithelial fractions found on
the bed sheet were the mixture of two individuals. Scott testified that Thomas’s DNA
profile was a major contributor and that H.W. could not be excluded as a possible source
of the DNA profile in the minor contributor.
{¶57} Viewing the foregoing evidence in a light most favorable to the
prosecutions, we find a rational trier of fact could have found Thomas guilty beyond a
reasonable doubt on the charges of rape and kidnapping.
{¶58} Moreover, we are unable to conclude that Thomas’s convictions were
against the manifest weight of the evidence. As stated, Thomas argues that his
convictions were the product of false testimony and unreliable DNA evidence. He
claims that the testimony of H.W. was “wrought with unreliability” where she admitted to
a pattern of lying to gain attention and recanted her allegations after she first disclosed the
sexual abuse to her mother. Thomas further contends that DNA evidence was “flawed”
because it may have been compromised while it was in the basement for over 30 days.
He submits that it is possible that a separate piece of laundry containing his DNA, such as
his own clothing or bedding, may have touched H.W.’s bed sheet while it was in a pile of
dirty clothes in the basement.
{¶59} Although Thomas maintains his innocence, the jury, as the trier of fact, was
in the best position to weigh the credibility of the witnesses and was free to find H.W.’s
testimony to be credible. Issues concerning H.W.’s credibility were raised by defense
counsel throughout the trial. Specifically, the jury was presented with information
concerning specific instances where H.W. made false statements to authoritative figures.
Furthermore, defense counsel questioned Scott at length during cross-examination about
the potential contamination of the bed sheet while it was in the basement. In fact, Scott
admitted that it is possible for DNA to be transferred onto one item from another article
of clothing if, for example, they touched while inside a laundry basket. Thus, the jury
was presented with all relevant information when weighing the arguments raised by each
side, but, ultimately rejected Thomas’s position. Deferring to the jury’s assessment of
credibility, as we must, we cannot say that the jury clearly lost its way and created such a
manifest miscarriage of justice that the convictions must be reversed and a new trial
ordered.
{¶60} Thomas’s third assignment of error is overruled.
D. Sentence
{¶61} In his fourth assignment of error, Thomas argues the trial court committed
prejudicial error by sentencing him to an excessive term of imprisonment. He contends
that the imposition of a consecutive sentence was the product of judicial bias based on the
trial court’s unhappiness with Thomas’s statements during the sentencing hearing.
{¶62} “Judicial bias is defined as ‘a hostile feeling or spirit of ill will or undue
friendship or favoritism toward one of the litigants or his attorney, with the formation of a
fixed anticipatory judgment on the part of the judge, as contradistinguished from an open
state of mind which will be governed by the law and facts.’” State v. Miller, 6th Dist.
Lucas No. L-08-1314, 2009-Ohio-3908, ¶ 20, quoting State v. LaMar, 95 Ohio St.3d 181,
2002-Ohio-2128, 767 N.E.2d 166, ¶ 34. “A trial judge is ‘presumed not to be biased or
prejudiced, and the party alleging bias or prejudice must set forth evidence to overcome
the presumption of integrity.’ Weiner v. Kwiat, 2d Dist. Montgomery No. 19289,
2003-Ohio-3409, ¶ 90, quoting Eller v. Wendy’s Internatl., Inc., 142 Ohio App.3d 321,
340, 755 N.E.2d 906 (2000).” Id. at ¶ 21. “[T]he appearance of bias or prejudice must
be compelling to overcome these presumptions.” In re Disqualification of George, 100
Ohio St.3d 1241, 2003-Ohio-5489, 798 N.E.2d 23, ¶ 5.
{¶63} With respect to the trial court’s statements at the sentencing hearing, we
find no evidence to overcome the court’s presumption of integrity. Although the trial
court vocalized its displeasure with Thomas’s failure to accept responsibility or show
remorse for his actions, we cannot say Thomas’s sentence was the product of “ill will,”
particularly where whether “[t]he offender shows no genuine remorse for the offense” is a
relevant recidivism factor to be considered under R.C. 2929.12(D)(5). Accordingly, we
find no merit to Thomas’s claim of judicial bias.
{¶64} Moreover, we are not able to conclude that Thomas’s sentence was
excessive. In this case, the trial court carefully considered the purposes of and principles
of felony sentencing and imposed individual prison terms for each rape conviction that
complied with the mandatory sentencing provisions of R.C. 2971.03(B)(1)(c).2 The
fact that the trial court ran two of Thomas’s mandatory sentences consecutive to one
another does not render his sentence excessive. See State v. Hairston, 118 Ohio St.3d
289, 2008-Ohio-2338, 888 N.E.2d 1073.
{¶65} Nevertheless, we find the trial court failed to make the necessary findings
for imposing consecutive sentences pursuant to R.C. 2929.14(C)(4). Under R.C.
2929.14(C)(4), the sentencing judge must make the following findings before imposing
consecutive sentences (1) that consecutive sentences are necessary to protect the public
from future crime or to punish the offender, (2) that consecutive sentences are not
disproportionate to the seriousness of the offender’s conduct and to the danger the
offender poses to the public, and (3) that (a) the offender committed one or more of the
multiple offenses while the offender was awaiting trial or sentencing, was under a
sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code,
2 R.C. 2971.03(B)(1)(c) requires a trial court to impose “a minimum term of twenty-five
years and a maximum of life imprisonment” upon an offender who commits a violation of R.C.
2907.02(A)(1)(b), and does so by purposely compelling his or her victim to submit by force or threat
of force.
or was under postrelease control for a prior offense, (b) at least two of the multiple
offenses were committed as part of one or more courses of conduct, and the harm caused
by two or more of the multiple offenses so committed was so great or unusual that no
single prison term for any of the offenses committed as part of any of the courses of
conduct adequately reflects the seriousness of the offender’s conduct, or the offender’s
history of criminal conduct demonstrates that consecutive sentences are necessary to
protect the public from future crime by the offender.
{¶66} “[A] word-for-word recitation of the language of the statute is not required,
and as long as the reviewing court can discern that the trial court engaged in the correct
analysis and can determine that the record contains evidence to support the findings,
consecutive sentences should be upheld.” State v. Bonnell, 140 Ohio St.3d 209,
2014-Ohio-3177, 16 N.E.3d 659, ¶ 29. The failure to make the findings, however, is
“contrary to law.” Id. at ¶ 37.
{¶67} In this case, the trial court discussed Thomas’s extensive criminal history
and briefly referenced H.W.’s physical and psychological vulnerability due to her age and
incurable neurological disorder. However, the only remaining statements the court made
when imposing the consecutive term was that Thomas’s behavior and lack of remorse at
the sentencing hearing, “convinced [the court] to impose a consecutive period of
incarceration.” While Thomas’s reluctance to accept responsibility for his conduct is
certainly a relevant factor in imposing a felony sentence, the court’s failure to make the
first and second findings under R.C. 2929.14(C)(4) rendered the sentence contrary to law.
{¶68} Accordingly, we sustain Thomas’s fourth assignment of error.
III. Conclusion
{¶69} Based on the foregoing, we affirm Thomas’s convictions but vacate his
sentence and remand to the trial court for the limited purpose of considering whether
consecutive sentences are appropriate, and, if so, to make the findings required by R.C.
2929.14(C)(4) on the record and to incorporate those findings into the sentencing entries.
{¶70} Judgment affirmed in part, reversed in part, and cause remanded to the
lower court for proceedings consistent with this opinion.
It is ordered that appellant and appellee share the 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. 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.
EILEEN T. GALLAGHER, JUDGE
LARRY A. JONES, SR., P.J., and
PATRICIA ANN BLACKMON, J., CONCUR