State v. Jackson , 2016 Ohio 3278 ( 2016 )

[Cite as State v. Jackson, 2016-Ohio-3278.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
SANDUSKY COUNTY
State of Ohio Court of Appeals No. S-15-020
Appellee Trial Court No. 14 CR 420
v.
Zachary J. Jackson DECISION AND JUDGMENT
Appellant Decided: June 3, 2016
*****
Thomas L. Stierwalt, Sandusky County Prosecuting Attorney,
and Norman P. Solze, Assistant Prosecuting Attorney, for appellee.
Daniel G. Wightman, for appellant.
*****
SINGER, J.
{¶ 1} Appellant, Zachary Jackson, appeals from his conviction in the Sandusky
County Court of Common Pleas on one count of aggravated burglary, one count of
burglary, one count of domestic violence, one count of violating a protection order, and
one count of rape. For the reasons that follow, we affirm.
{¶ 2} A trial commenced on March 17, 2015. The victim testified that she lives in
an apartment with her young son. Appellant is her son’s father. She has known appellant
for six years. She briefly lived with appellant. In February of 2014 she filed a civil
protection order against appellant. On May 12, 2014, appellant sent the victim a text
message asking her if he could come over. The victim told him no. They continued to
exchange angry text messages with each other.
{¶ 3} The victim testified that later, appellant kicked in her front door and ran
upstairs to her apartment. He kicked furniture and then knocked her on the ground and
started hitting her in her face and head. She began bleeding from her nose and her cut lip.
Appellant then put her in a chokehold and demanded that she get in the shower to wash
off the blood. After the shower, appellant made her lie on her bed. He held her down
and vaginally raped her despite the fact that the victim was crying and asked him to stop.
{¶ 4} After appellant left, the victim called a friend who took her to the hospital.
Detective Jason Kidde met the victim at the hospital. He described her as being very
upset; displaying facial injuries, bruising on her arms and marks around her neck.
Detective Kidde then went to the victim’s apartment. Her door was damaged and there
was blood on her carpet. He also found blood on her clothes and on some bathroom
towels. When Detective Kidde asked appellant about the May 12 incident, appellant
claimed he had consensual sex with the victim.
2.
{¶ 5} A jury found appellant guilty on all counts. He was sentenced to serve an
aggregate prison term of 11 years. Appellant now appeals setting forth the following
assignments of error:
I. The trial court violated the appellant’s right to due process
guaranteed by the Fifth Amendment to the United States Constitution and
Article I, Section 10 of the Constitution of the state of Ohio and committed
plain error by failing to instruct the jury on all elements of the offense of
violation of a protection order pursuant to R.C. 2919.27.
II. The appellant’s conviction for rape was against the manifest
weight of the evidence.
III. The trial court committed plain error in not instructing the jury
on sexual battery under R.C. 2907.03(A)(1) as a lesser included offense to
rape.
IV. The appellant was denied effective assistance of counsel
guaranteed by the Sixth and Fourteenth Amendment to the Constitution of
the United States and Article I, Section 10 of the Constitution of the State
of Ohio when counsel failed to object to the jury instruction for violating a
protection order under R.C.2919.27 that failed to instruct the jury on all
elements of the offense and by failing to request a jury instruction on the
lesser included offense of sexual battery under R.C. 2907.03(A)(1) on the
charge of rape.
3.
{¶ 6} In his first assignment of error, appellant contends that the court erred in
instructing the jury on the elements of R.C. 2919.27, violation of a protection order.
Specifically, appellant contends that the court erred in failing to instruct the jury that they
must find, beyond a reasonable doubt, that appellant was served with a copy of the order
before the alleged violation. Appellant did not object to the instruction at trial.
{¶ 7} Initially we note that Crim.R. 30(A) provides that, on appeal, an appellant
may not assign as error the giving or failure to give any jury instructions unless the
appellant objected before the jury retired to consider its verdict. The failure to timely
object waives all but plain error. State v. Moore, 163 Ohio App. 3d 23, 2005-Ohio-4531,
836 N.E.2d 18 (2d Dist.); State v. Thompson, 2d Dist. Montgomery No. 22984, 2010-
Ohio-1680. To be considered plain error, the error must be obvious on the record,
palpable, and fundamental, so that the error should have been apparent to the trial court
without objection. State v. Tichon, 102 Ohio App. 3d 758, 658 N.E.2d 16 (9th Dist.1995).
Plain error does not exist unless the appellant can establish that the outcome of his trial
would have clearly been different but for the trial court’s alleged improper actions. State
v. Waddell, 75 Ohio St. 3d 163, 661 N.E.2d 1043 (1996). Notice of plain error must be
taken with the utmost caution, only under exceptional circumstances, and only to prevent
a manifest miscarriage of justice. State v. Phillips, 74 Ohio St. 3d 72, 656 N.E.2d 643
(1995).
4.
{¶ 8} Ohio Jury Instructions, CR Section 519.27, reads as follows:
1. The defendant is charged with violating a protection order.
Before you can find the defendant guilty, you must find beyond a
reasonable doubt, that on or about the _____ day of ____ , 20______, and
in ____ (County) (other jurisdiction), Ohio, the defendant was served with
a copy of a protection order and recklessly violated the terms of the
protection order.
2. SERVED. “Served” means actual delivery of the protection
order to the defendant.
{¶ 9} The trial court, in this case, instructed the jury as follows:
Before you can find the defendant guilty of this count of violating a
protection order, you must find that the State of Ohio has proven beyond a
reasonable doubt that on or about May the 12th, 2014 at * * *, in Sandusky,
Ohio, the defendant did recklessly violate the terms of a protection order
issued or consent agreement approved pursuant to R.C. 2919.26 * * *
{¶ 10} In support of his assignment of error, appellant cites State v. Smith, 136
Ohio St. 3d 1, 2013-Ohio-1698, 989 N.E.2d 972. In that case, the Supreme Court of Ohio
stated: “[t]o sustain a conviction for a violation of a protection order pursuant to R.C.
2919.27(A)(2), the state must establish, beyond a reasonable doubt, that it served the
defendant with the order before the alleged violation.”
5.
{¶ 11} At trial, Sandusky County sheriff’s deputy, Mario Cavillo, identified
exhibit No. 62 as a receipt indicating that Deputy Cavillo served the protection order on
appellant on February 28, 2014 at 4:32 p.m. Cavillo also identified the handwriting as his
own, although he had no personal recollection of actually serving appellant.
{¶ 12} Sandusky County Clerk of Courts, Tracy Overmyer, identified exhibit No
61 as a return of service sheet she, as clerk of courts receives, confirming that service has
been perfected on a respondent. Exhibit No. 61 shows that on February 28, 2014, Deputy
Mario Cavillo personally served the protection order on appellant.
{¶ 13} It is undisputed that the trial court made no mention of service or delivery
when instructing them on the elements of the offense. However, given the above
testimony, we cannot say that the outcome of his trial would have clearly been different
but for the trial court’s omission. Appellant’s first assignment of error is found not well-
taken.
{¶ 14} In his second assignment of error, appellant contends that his conviction for
rape was against the manifest weight of the evidence.
{¶ 15} With respect to the manifest weight of the evidence, a reviewing court
questions “‘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. The discretionary power to grant a new trial should be exercised
only in the exceptional case in which the evidence weighs heavily against conviction.’”
State v. Group, 98 Ohio St. 3d 248, 2002-Ohio-7247, 781 N.E.2d 980, ¶ 77, quoting State
6.
v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (10th Dist.1983). The appellate
court considers all of the evidence, sits as a “thirteenth juror,” and decides whether a
greater amount of credible evidence supports an acquittal such that the jury “clearly lost
its way” in convicting the appellant. State v. Thompkins, 78 Ohio St. 3d 380, 387, 678
N.E.2d 541 (1997).
{¶ 16} R.C. 2907.02(A)(2) provides: [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.
{¶ 17} Appellant’s evidentiary argument centers upon the credibility of the victim.
He contends her behavior and testimony were inconsistent with that of a rape victim.
First, he notes that the victim never stated that appellant physically forced her to have
sex. The victim acknowledged that she did not try to get up from the bed but only
because appellant was stronger than her and he had already beaten her. She testified she
told him no and that the entire time, she was crying. When she initially was interviewed
by Detective Kidde, she told him the sex was consensual because “she was scared.” She
later told Kidde that she had sex with appellant hoping he would then leave. The nurse
who conducted the sexual assault exam on appellant testified that she saw no visible
internal injuries on the victim but that is not unusual. She testified: “[i]n my experience
there are times you don’t see injuries when you know this was not a consensual event.”
The nurse testified that the victim had been severely beaten.
7.
{¶ 18} At trial, the victim stated that she told appellant that she did not want to
have sex and that she told him to stop. This occurred after he had already broken into her
home and physically assaulted her. In choosing to believe the testimony of the victim,
we cannot say that the jury, as the trier of fact, lost its way or that the result was a
manifest miscarriage of justice. Appellant’s second assignment of error is found not
well-taken.
{¶ 19} In his third assignment of error, appellant contends that the court erred in
failing to instruct the jury on the offense of sexual battery as a lesser include offense to
rape. Once again, we review this assignment of error under the plain error standard as
appellant did not ask for such an instruction below.
{¶ 20} “In Ohio, there is a presumption that the failure to request an instruction on
a lesser-included offense constitutes a matter of trial strategy * * *.” State v. Hernon, 9th
Dist. Medina No. 3081-M, 2001 WL 276348 (Mar. 21, 2001). Appellant has not
identified anything in the record that demonstrates that his counsel’s failure to request a
lesser included offense instruction “was anything other than a tactical election to seek an
acquittal rather than a conviction on the lesser-included offense.” State v. DuBois, 9th
Dist. Summit No. 21284, 2003-Ohio-2633, ¶ 6. We, therefore, conclude that in light of
counsel’s decision not to request a lesser-included-offense instruction, the trial court’s
failure to give it does not amount to plain error. See also State v. Jury, 6th Dist. Erie No.
E-14-100, 2016-Ohio-2663. Appellant’s third assignment of error is found not well-
taken.
8.
{¶ 21} In his fourth assignment of error, appellant contends he was denied
effective assistance of counsel in that counsel failed to object to the jury instruction on
violating a protection order and the fact counsel failed to request an instruction on the
offense of sexual battery as a lesser include offense to rape. Given our disposition of
appellant’s first and third assignments of error, appellant’s fourth assignment of error is
found not well-taken.
{¶ 22} On consideration whereof, we find that appellant was not prejudiced or
prevented from having a fair trial and the judgment of the Sandusky County Court of
Common Pleas is affirmed. Pursuant to App.R. 24, appellant is ordered to pay the costs
of this appeal.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
James D. Jensen, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.
9.