State v. Kehoe , 2021 Ohio 548 ( 2021 )

[Cite as State v. Kehoe, 2021-Ohio-548.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
CASE NO. 1-20-20
PLAINTIFF-APPELLEE,
v.
JOHN R. KEHOE, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court
Trial Court No. CR 2019 0096
Judgment Affirmed
Date of Decision: March 1, 2021
APPEARANCES:
Thomas J. Lucente Jr. for Appellant
Jana E. Emerick for Appellee
Case No. 1-20-20
WILLAMOWSKI, P.J.
{¶1} Defendant-appellant John R. Kehoe (“Kehoe”) brings this appeal from
the judgment of the Court of Common Pleas of Allen County accepting the jury
verdicts of guilty of three counts of rape and sentencing Kehoe to prison. Kehoe
claims on appeal that his convictions were not supported by sufficient evidence and
were against the manifest weight of the evidence, that he was denied the effective
assistance of counsel at sentencing, and that the offenses were allied offenses that
should have merged for the purposes of sentencing. For the reasons set forth below,
the judgment is affirmed.
{¶2} On January 27, 2019, then Deputy Travis Christy (“Christy”) went to
the hospital in reference to a sexual assault complaint made by the victim. Doc. 3.
The victim told Christy that Kehoe pulled down her pants, forced his fingers inside
of her vagina, then forced his penis into her mouth, and eventually penetrated her
vagina with his penis. Id. Kehoe then pulled her pants up and left the room. Id.DNA specimens were recovered from the victim’s vagina and taken to the Bureau
of Criminal Investigation (“BCI”) for analysis. Id. On February 12, 2019, Kehoe
spoke with Detective Callie Basinger (“Basinger”) and denied that anything
happened. Id. The lab results were provided to Basinger on March 4, 2019, and
showed that it was a match to a sample in the system which belonged to Kehoe. Id.{¶3} On April 11, 2019, the Allen County Grand Jury indicted Kehoe on
three counts of rape in violation of R.C. 2907.02(A)(1)(c), 2907.02(B), felonies of
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the first degree. Doc. 4. All three counts were based upon sexual conduct which
occurred while Kehoe knew or had reason to believe that the victim’s ability to resist
or consent were substantially impaired. Id. On April 19, 2019, Kehoe entered pleas
of not guilty to all of the counts. Doc. 11. A jury trial was held from January 21 to
January 24, 2020. Doc. 127. During the trial, the following evidence was submitted.
{¶4} The victim testified that the incident occurred on January 26, 2019, at
the home of Kristina Burkholder (“Kristina”) in Allen County, Ohio. Tr. 263. She
and Rebekah Burkholder (“Rebekah”), a friend of the victim, had planned to go
Kristina’s home to drink and hang out as Kristina was Rebekah’s mother. Tr. 265.
The victim and Rebekah arrived at Kristina’s home between 1:30 and 2:30 pm. Tr.
266. At that time, Kristina, Kehoe, and Kristina’s son Braxton Burkholder
(“Braxton”) were present at the home. Tr. 266. Kehoe was engaged to Kristina at
that time. Tr. 267. Before going to the home, the victim had only met Kristina and
Kehoe one other time and it was a short visit. Tr. 268. All of them were sitting
around visiting and listening to music. Tr. 269. Eventually, Kehoe handed the
victim a six pack of alcoholic drinks and told her they were for her. Tr. 270. They
started doing shots and the victim started drinking the bottles of alcohol beside her.
Tr. 271. After the victim finished two bottles of the alcoholic drink given to her,
she joined the others in doing shots of alcohol. Tr. 272. The victim testified that
she had consumed three or four of the bottles of alcoholic drinks and at least three
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double shots of liquor. Tr. 272. The shots were all poured for the victim by Kehoe.
Tr. 349.
{¶5} After a while, Rebekah felt ill and went into the bedroom to lie down.
Tr. 274. The victim testified that she was lightheaded and could not walk well. Tr.
274. Kristina was sitting in a chair in the living room playing on her laptop at that
time. Tr. 275. Kristina then fell asleep in a chair in the living room and the victim
went into the kitchen to get some food before returning to the living room to eat.
Tr. 277. As she was eating, Kehoe was encouraging her to finish eating and to go
lie down in the bedroom with Rebekah. Tr. 279. Kehoe came up behind the victim
and pulled her to her feet, and walked her to the bedroom telling her she was going
to lie down. Tr. 279. Although she wanted to finish her food, the victim testified
that she was not upset with going into the bedroom because the room was spinning
and lying down sounded like a good idea. Tr. 280. Kehoe kept in contact with her
the whole time as the victim did not believe she could have walked that far by herself
without falling down. Tr. 280. The victim then laid on the end of the bed on her
side facing inward. Tr. 281.
{¶6} When the victim laid down, she attempted to get her phone to text her
friend, Kyle Hicks (“Hicks”). Tr. 283. She could not unlock the phone to use it
because she was too intoxicated to make the necessary pattern. Tr. 284. While she
was fumbling with the phone, she heard Kehoe say something, but she did not know
what it was. Tr. 283. Then she felt her leggings being pulled down. Tr. 283. She
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dropped the phone and was not able to locate it right then. Tr. 285. The victim felt
like she was unable to move or speak. Tr. 286. After Kehoe had pulled her pants
down to her thighs, she felt his fingers in her vagina. Tr. 286. Everything went
black for a while at that point and the victim testified that she passed out. Tr. 287.
When the victim came to and opened her eyes she found Kehoe with his penis in
her mouth. Tr. 287. Kehoe had his hand on the back of her head holding her in
place while he was moving. Tr. 288. Then the victim blacked out again. Tr. 288.
The next time the victim came too, she felt Kehoe’s penis inside her vagina. Tr.
288-89. Kehoe was standing beside the end of the bed at that point. Tr. 289. The
victim only retained consciousness for a few seconds before she again blacked out.
Tr. 289. Later the victim woke to find Kehoe pulling up her pants and then exiting
the room and she started to “freak out”. Tr. 290. She found her phone, unlocked it
with her fingerprint, and called Hicks, crying hysterically. Tr 290. The victim
testified that she did not know if she was making sense on the call, but she was
trying to say that she needed to leave. Tr. 292.
{¶7} Rebekah then woke up as the victim was crying and the victim just told
her she needed to leave. Tr. 292. The victim indicated that she did not talk to
anyone on the way out and was not able to tell Rebekah what happened until they
were in the car leaving. Tr. 293. The victim testified that she originally got in the
driver’s seat to leave as it was her car, but she was unable to drive due to her level
of intoxication, so Rebekah drove. Tr. 294. They then left and drove to Rebekah’s
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house while the victim was on the phone with Hicks. Tr. 295. They arrived at
Rebekah’s house between 6:45 and 7:00 pm. Tr. 296. Rebekah called her roommate
Kaitlyn Groves (“Groves”) who told the victim to not shower, but to take off her
clothing and put them in a bag, so that is what the victim did. Tr. 297. When Groves
arrived, she gave the victim some clothes, and tried to help calm the victim down.
Tr. 297. While at Rebekah’s home, the victim still felt the effects of the alcohol as
she was unable to make full sentences and was slurring her speech. Tr. 298. After
they sobered up some, Rebekah took the victim to the hospital where she agreed to
having the police notified. Tr. 300.
{¶8} The victim testified that she was not married to Kehoe. Tr. 309. She
also testified that she had never indicated that she wished to engage in sexual
conduct with Kehoe. Tr. 310. During the evening in question, the victim testified
that she was intoxicated to the point of being unable to move or speak clearly and
that she was fading in and out of consciousness. Tr. 310.
{¶9} On cross-examination, the victim admitted that she went to Kristina’s
home knowing they would be drinking. Tr. 320. She admitted to drinking the
alcoholic drinks while doing shots. Tr. 323. She also admitted that she drank the
alcohol voluntarily. Tr. 344-45. When Kehoe was walking her to the bedroom, the
victim stated that she would lay down on the bed with Rebekah. Tr. 326. The victim
testified that when she would come back into consciousness, she still could not
move her body or speak. Tr. 334. She tried to text Hicks first, but the text was a
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jumble of letters, so she instead just called him. Tr. 336. All she could tell him was
that she wanted to leave because she was hysterically crying. Tr. 337. That was
what woke Rebekah. Tr. 337. At that point in time, the victim was not able to say
what happened, she just was able to let Rebekah know that she needed to leave. Tr.
338. While in the car, Rebekah took the phone and spoke with Hicks. Tr. 340.
While at Rebekah’s house, Hicks was texting her suggesting she go to the hospital
and call the police. Tr. 341. The only thing the victim remembered Kehoe saying
in the bedroom was that he claimed to be Hicks when she indicated she needed to
contact Hicks. Tr. 346.
{¶10} The next witness presented by the State was Hicks. Hicks testified
that in January of 2019, he and the victim had been getting to know one another as
they decided whether to enter into a relationship. Tr. 352. On January 26, 2019, he
received a strange phone call from the victim. Tr. 353. She was very upset and all
he could understand was that she was getting her shoes. Tr. 353. He overheard
another person say that the victim was drunk and he could tell that from listening to
her. Tr. 354. Hicks testified that he did not recall any other calls or texts from the
victim. Tr. 355.
{¶11} Braxton testified that the day of the incident was the first time he had
met the victim. Tr. 361. She was there because she was one of Rebekah’s friends,
so she was invited over. Tr. 361. After greeting Rebekah and the victim, he went
into his room to play video games by himself. Tr. 362. Within an hour, Kehoe
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came into his room to play games with him. Tr. 363. Kehoe was only in the room
for maybe 45 minutes. Tr. 363. Braxton left his room one time to go get a drink.
Tr. 363. Everyone was still in the living room at that time. Tr. 364. Kehoe came
back in to talk to him for a little bit after that, but was not in there for more than a
half hour. Tr. 365-66. A couple hours later, Kehoe and Braxton worked on cleaning
up the bathroom where someone had gotten sick and Braxton then sat in the living
room talking to Kehoe before returning to his room. Tr. 366. After about 30 more
minutes, Kehoe told Braxton that the victim and Rebekah were leaving. Tr. 366.
Braxton testified that he did not hear any screaming or yelling. Tr. 369. Braxton
also testified that he had seen Kehoe intoxicated before and he did not seem drunk
on this instance. Tr. 371. According to Braxton, the majority of the time the victim
was in the house, Kehoe was in the bedroom with him. Tr. 372-73. On cross-
examination, Braxton indicated that he could usually hear loud noises happening in
the living room from his bedroom, but he did not hear anything that evening. Tr.
375.
{¶12} Rebekah testified that she met the victim in September of 2018. Tr.
392. They had gone over to her mom’s house with the idea of drinking as she had
not been able to do so until after her baby was born. Tr. 395. Originally, it was
supposed to be a family day with just Rebekah and the baby going over to the house.
Tr. 396. According to Rebekah, she and her baby went to the house by themselves.
Tr. 397. She did not take any alcohol, but there was alcohol there. Tr. 397. The
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victim arrived around 4:30 in the afternoon. Tr. 397. Before the victim arrived,
Rebekah was the only one drinking. Tr. 399. Rebekah had consumed four shots
before the victim started drinking. Tr. 400-401. Rebekah saw that her mother had
fallen asleep with the baby, so she decided to go take a nap on the bed. Tr. 402.
When she went into the bedroom, Kristina was asleep in a chair in the living room
with the baby, the victim was in the living room, Braxton was in his room, and
Kehoe was in the kitchen. Tr. 407-408. When Rebekah got up to go to the
bathroom, she saw the victim sitting on the living room floor eating. Tr. 408.
Rebekah then returned to the bedroom and went back to sleep. Tr. 409. The next
thing Rebekah recalled was waking up to the victim calling Hicks. Tr. 410. As
soon as Hicks answered, the victim started crying. Tr. 410. Kehoe then ran into the
room and asked what was going on. Tr. 410. Rebekah testified that she told him
she didn’t know, so he left. Tr. 412. Eventually the victim said she had been raped
by John and that they needed to leave. Tr. 411, 413. The victim then went to the
car and waited for Rebekah. Tr. 414. According to Rebekah, Kehoe did not kick
the victim out of the house. Tr. 415.
{¶13} After she gathered her belongings, Rebekah drove the victim to
Rebekah’s house. Tr. 417. Rebekah testified that they arrived at her home around
8:40 pm. While at her house, she fell back asleep but kept waking up to the victim
talking on the phone to people. Tr. 420. Eventually, Groves arrived at the home
and began talking to the victim. Tr. 422. Groves offered to watch the baby, so
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Rebekah drove the victim to the hospital. Tr. 422. At the hospital, the victim gave
statements to the police and was given an sexual assault exam. Tr. 423. They were
at the hospital for more than five hours. Tr. 423. By the time they left, the victim
was joking and then the victim drove them back to the house. Tr. 424-25.
{¶14} On cross-examination, Rebekah testified that when she woke up to go
to the bathroom, the victim was sitting in the living room eating and the only other
people in the living room was Kristina and the baby, who were sleeping. Tr. 430.
After Rebekah went back to sleep on the bed, she did not wake again until she heard
the victim calling Hicks. Tr. 430. Rebekah testified that she could hear the victim’s
side of the conversation, but did not know what she was talking about because she
was being cryptic and did not tell Rebekah what had happened. Tr. 431. When the
victim got off the phone, she told Rebekah that Kehoe had touched her and it was
rape. Tr. 432. Rebekah testified that she did not hear Kehoe in the room and she
was within touching distance of the victim. Tr. 433. They had been at Rebekah’s
home for a couple of hours before they went to the hospital. Tr. 439. Rebekah
denied that she had ever spoken with Hicks on the phone. Tr. 442.
{¶15} Kristina testified that on the 26th, the victim and Rebekah arrived
together because the victim had driven. Tr. 453. The plan was just to hang out and
relax. Tr. 453. About an hour after they arrived, Kristina and Kehoe went to get
more alcohol. Tr. 454-55. Kristina testified that she was drinking beer, the victim
was drinking the alcoholic drink, and all of them were doing shots. Tr. 457-58.
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Kehoe was pouring the shots for them, but he was not drinking as many of them as
they were. Tr. 458. Eventually Kristina fell asleep in her chair in the living room.
Tr. 460-61. Kristina says she only got up once to use the bathroom and did not see
anyone besides Rebekah, who was in the bathroom. Tr. 461-62. Kristina then went
back to the living room and fell back asleep in the chair until everyone was leaving.
Tr. 463. Kristina testified that she tried to stop them from leaving because she did
not think they were okay. Tr. 463-64. She did not know why they were leaving at
that time. Tr. 465. She spoke with Kehoe and he said that the victim was upset
because he asked her to leave, but he did not really tell her why. Tr. 466. Kehoe
only told her that the victim was acting crazy so he kicked her out. Tr. 467. After
they left, Kristina went into bed and went to sleep, but Kehoe did not go to bed right
away. Tr. 469. Kehoe later told her that the victim had tried to seduce him while
he was sleeping in his chair. Tr. 470.
{¶16} On cross-examination, Kristina testified that the victim asked them to
get the alcoholic drink that she wanted. Tr. 472. Kristina also admitted that she did
not know what happened because she was asleep. Tr. 473. When she woke up for
the second time, the victim and Rebekah were already in the car ready to leave. Tr.
474. No one said why they were leaving. Tr. 474. Although the victim appeared
teary eyed in the car, Kristina never heard her crying. Tr. 476.
{¶17} Groves testified that she knew the victim through Rebekah, who was
her roommate. Tr. 483. On the night of January 26, 2019, Rebekah called Groves
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saying she did not know what to do and handing the phone to the victim. Tr. 484.
The victim was hysterical and Groves could not understand her. Tr. 484. Eventually
Groves understood that the victim was claiming to have been raped by Kehoe, so
Groves went home. Tr. 484. When she got home, Groves gave the victim a change
of clothes and told the victim to bag her clothes in case she wanted to go to the
hospital. Tr. 484. Groves did not believe that either Rebekah or the victim were
drunk at that point in time. Tr. 488. Groves testified that she eventually convinced
them to go to the hospital while she stayed home with the baby. Tr. 489-90. While
Groves was talking to the victim, Rebekah was getting texts from Kristina’s phone,
but she believed they were actually from Kehoe. Tr. 491.
{¶18} Christy testified that at the time of trial, he was employed as a
patrolman with the Wapakoneta Police Department, but on the date of the incident,
he had been employed as a Deputy with the Allen County Sheriff’s Department. Tr.
498. On January 27, 2019, he was dispatched to the hospital for a sexual abuse
complaint. Tr. 499. When Christy met the victim at the hospital, she was “very
upset, crying, emotional, could barely get a full sentence out without like, um, trying
to like get it all together before talking to [him].” Tr. 501. The victim informed
him that Kehoe had “inserted his fingers into her vagina and penetrated her vagina
with his penis.” Tr. 501. The victim also told him that Kehoe had forced his penis
into her mouth. Tr. 505. The victim indicated to him that she was intoxicated and
had been in and out of sleep while this occurred; that things were “hazy” and “fuzzy”
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so she had come to be checked out at the hospital. Tr. 502. Later, Christy returned
to the hospital to pick up the sexual assault kit and the victim’s clothing. Tr. 503.
{¶19} Harvest Nuss (“Nuss”) testified that she is a sexual assault nurse
examiner. Tr. 510. Nuss conducted the sexual assault exam on the victim. Tr. 528.
As part of that exam, Nuss took a history of the incident. Tr. 530. Nuss identified
Ex. 2 as the nurse’s statement for the sexual assault kit. Tr. 531. The victim named
the assailant and indicated that there was vaginal and oral penetration. Tr. 532. The
victim identified the assailant by name as Kehoe. Tr. 533. Nuss testified that she
collected DNA samples from various locations on the victim’s body. Tr. 540-543.
During the exam, Nuss found no external injuries to the victim. Tr. 546. She also
found no injures to the internal cavities of the body. Tr. 547. Nuss noted that during
the examination, the victim was generally calm and cooperative, but did get tearful
during the interview portion of the exam. Tr. 554.
{¶20} Julie Altizer (“Altizer”) testified that she is employed as a forensic
scientist in the DNA and Forensic Biology section of BCI. Tr. 568. Through the
five years with BCI, Altizer has conducted over a thousand DNA comparisons. Tr.
570. Altizer identified Ex. 3 as her report on the comparison of the samples taken
from the victim and Kehoe. Tr. 579. Based upon a reasonable degree of scientific
certainty, Altizer testified that Kehoe could not be excluded as the source of DNA
samples taken from inside the victim’s vaginal cavity. Tr. 585. The chance of it
belonging to anyone else was rarer than one in a trillion. Tr. 586.
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{¶21} Basinger testified that she is a detective with the Allen County
Sheriff’s Office. Tr. 592. She has been assigned to investigate sexual assault cases.
Tr. 592. Basinger spoke with Kehoe on February 12, 2019, and identified Ex. 5 as
the recording. Tr. 598. This recording was played for the jury. Tr. 599. Kehoe
was later arrested and interviewed by Basinger. Tr. 600. Basinger identified Ex. 6
as a recording of the interview. Tr. 601. This recording was also played for the
jury. Tr. 602. A DNA swab was taken from Kehoe to compare to the sample taken
from the victim. Tr. 606. On cross-examination, Basinger admitted that she did not
interview Rebekah, Groves, Hicks, or Kristina. Tr. 622.
{¶22} Following Basinger’s testimony, the State rested its case. Kehoe’s
counsel moved for a dismissal pursuant to Crim.R. 29. Tr. 629. The trial court
overruled this motion. Tr. 631. Kehoe then rested without presenting any evidence.
The jury returned verdicts of guilty on all three counts. Doc. 98. Sentencing was
delayed to allow for a presentence investigation to be completed. Id.{¶23} Before the sentencing hearing was held, Kehoe filed some pro se
motions. These included a motion for defense counsel to meet with him at the jail
(Doc. 105), a motion for an extension of time to file post-trial motions (Doc. 106),
and a motion for a judgment of acquittal (Doc. 107). On March 12, 2020, the trial
court held a sentencing hearing. Doc. 111. The trial court sentenced Kehoe to an
aggregate prison term of 23 years. Id. Kehoe filed a timely notice of appeal from
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this judgment. Doc. 115. On appeal, Kehoe raises the following assignments of
error.
First Assignment of Error
The trial court denied [Kehoe] effective assistance of counsel
during a critical and crucial stage of the criminal proceeding
encroaching upon [Kehoe’s] rights guaranteed by the Sixth and
Fourteenth Amendments of the United States Constitution and
Article 1, Section 10 of the Ohio Constitution.
Second Assignment of Error
[Kehoe’s] conviction on three counts of rape was against the
manifest weight of the evidence in violation of Article IV, Section
3 of the Ohio Constitution and is contrary to law.
Third Assignment of Error
The trial court erred in denying [Kehoe’s] motions for acquittal,
where there was legally insufficient evidence to establish each
material element of the offenses beyond a reasonable doubt.
Fourth Assignment of Error
The trial court failed to merge allied offenses of similar import
and thus imposed more prison terms than authorized by law.
In the interests of clarity, we will address the assignments of error out of order.
Sufficiency of the Evidence
{¶24} In the third assignment of error, Kehoe claims that the trial court erred
in dismissing his motions for an acquittal because the evidence was not sufficient to
support convictions on each of the counts. “Under the sufficiency of
the evidence standard, ‘[t]he relevant inquiry is whether, after viewing the evidence
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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. Sullivan, 3d Dist. Hancock No. 5-17-09, 2017-Ohio-8937, ¶ 28, 102 N.E.3d
86 quoting State v. Potts, 3d Dist. Hancock No. 5-16-03, 2016-Ohio-5555, 69
N.E.3d 1227, ¶ 12.
{¶25} In each count of the indictment, Kehoe was charged with one count of
rape in violation of R.C. 2907.02(A)(1)(c), 2907.02(B). This required the State to
prove that Kehoe 1) engaged in sexual conduct 2) with a person not their spouse 3)
when the other person’s ability to consent is substantially impaired and 4) the
offender has reasonable cause to believe that the other person is impaired. R.C.
2907.02(A)(1)(c). “Sexual conduct” is defined as “vaginal intercourse between a
male and female, * * * fellatio, * * *; and, without privilege to do so, the insertion,
however slight of any part of the body or any instrument, apparatus, or other object
into the vaginal or anal opening of another. Penetration, however slight, is sufficient
to complete vaginal or anal intercourse.” R.C. 2907.01(A). The testimony of the
victim in this case was that Kehoe engaged in three separate instances of sexual
conduct. The victim testified that Kehoe inserted his fingers into her vaginal
opening. Then she awoke a second time to Kehoe’s penis in her mouth and him
holding her head. The victim again blacked out and awoke a third time when
Kehoe’s penis was inside her vaginal cavity. The victim also testified that she was
not married to the defendant and that she had consumed three or four bottles of
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alcoholic drinks and several shots of liquor during the evening. She admitted that
she was not able to walk to the bedroom by herself, operate her phone correctly, or
speak without slurring her words. She testified that Kehoe should have known this
as he was the one pouring shots for her and he had to help her to the bedroom. In
the bedroom, she repeatedly fell asleep and woke up during the assault. Both
Rebekah and Kristina testified that they observed the victim drinking several shots
as well as other alcoholic beverages and that Kehoe was pouring the shots. Altizer
testified that DNA recovered from the victim’s vaginal cavity could not exclude
Kehoe as the source and that the odds of that DNA coming from someone other than
Kehoe were one in a trillion. Viewing this evidence in a light most favorable to the
State, it is sufficient to support the convictions on each of the three counts of rape.
The third assignment of error is overruled.
Manifest Weight of the Evidence
{¶26} Kehoe claims, in the second assignment of error, that his convictions
were against the manifest weight of the evidence. When reviewing a judgment to
determine if it is against the manifest weight of the evidence, an appellate court
“review[s] the entire record, weighs the evidence and all reasonable inferences,
considers the credibility of witnesses and determines 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.” State v.
Mendoza, 137 Ohio App.3d 336, 738 N.E.2d 822 (3d Dist. 2000). See, also, State
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v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). A new trial should
be granted only in the exceptional case in which the evidence weighs heavily against
conviction. Thompkins at 387, 678 N.E.2d 541. Although the appellate court acts
as a “thirteenth juror,” due deference to the findings made by the fact-finder must
still be given. State v. Moorer, 3d Dist. Seneca No. 13–12–22, 2013-Ohio-650, ¶
29.
{¶27} A review of the record in this case shows that the jury carefully
considered the evidence before it. The victim testified to what she recalled. Her
testimony regarding the actions of Kehoe was consistent with what she told Christy,
Groves, and Nuss. While there were inconsistencies as to whether she was
hysterical when she left Kehoe’s home and as to the extent of the victim’s
intoxication, all of the witnesses at the scene testified that the victim had been
drinking heavily and that Kehoe knew she was drinking. Viewing the evidence as
a whole, this court does not find that the evidence weighs heavily against conviction
or that the jury clearly lost its way creating a manifest miscarriage of justice. The
second assignment of error is therefore overruled.
Allied Offenses
{¶28} In the fourth assignment of error, Kehoe alleges that the trial court
erred by not merging the convictions for the purpose of sentencing because the
offenses were allied offenses of similar import. Kehoe claims they should have
merged because they were a “single sexual encounter”.
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(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the
indictment or information may contain counts for all such
offenses, but the defendant may be convicted of only one.
(B) Where the defendant's conduct constitutes two or more
offenses of dissimilar import, or where his conduct results in two
or more offenses of the same or similar kind committed
separately or with a separate animus as to each, the indictment or
information may contain counts for all such offenses, and the
defendant may be convicted of all of them.
R.C. 2941.25.
Rather than compare the elements of two offenses to determine
whether they are allied offenses of similar import, the analysis
must focus on the defendant’s conduct to determine whether one
or more convictions may result, because an offense may be
committed in a variety of ways and the offenses committed may
have different import. No bright-line rule can govern every
situation.
As a practical matter, when determining whether offenses are
allied offenses of similar import within the meaning of R.C.
2941.25, courts must ask three questions when the defendant’s
conduct supports multiple offenses: (1) Were the offenses
dissimilar in import or significance? (2) Were they committed
separately? and (3) Were they committed with separate animus
or motivation? An affirmative answer to any of the above will
permit separate convictions. The conduct, the animus, and the
import must all be considered.
State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, ¶ 30-31, 34 N.E.3d 892.
{¶29} In this case, we only need to look to the second question. Ohio law
has long held that multiple separate and distinct acts of penetration support multiple
convictions and sentences. State v. Hall, 6th Dist. Lucas No. L-17-1069, 2018-Ohio-
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619, ¶ 10; State v. Hernandez, 12th Dist. Warren No. CA2010-10-098, 2011-Ohio-
3765, ¶ 48; and State v. Pippin, 1st Dist. Hamilton Nos. C-160380, C-160381, 2017-
Ohio-6970, ¶ 49.
Repeated acts of forcible sexual intercourse are not to be
construed as a roll of thunder, an echo of a single sound
rebounding until attenuated. One should not be allowed to take
advantage of the fact that he has already committed one sexual
assault on the victim and thereby be permitted to commit further
assaults on the same person with no risk of further punishment
for each assault committed. Each act is a further denigration of
the victim's integrity and a further danger to the victim.
State v. Barnes, 68 Ohio St.2d 13, 19, 427 N.E.2d 517 (1981) concurring opinion.
If there are multiple, separate and distinct acts of penetration, separated by
significant intervening acts, they are separate offenses even if committed within a
short time frame. Pippin, supra (holding that two instances of fellatio were separate
offenses when the first occurred before the victim lost consciousness and the second
occurred after the victim lost consciousness). Kehoe was convicted of vaginal
penetration of the victim’s vaginal cavity by Kehoe’s fingers before she lost
consciousness. The victim testified she then awoke to penetration of her mouth by
Kehoe’s penis before she lost consciousness again. The third time the victim awoke,
Kehoe’s penis was inside her vaginal cavity. These are three separate penetrations
separated by a short period of time. Thus, they were separate offenses for which he
can be charged, convicted and sentenced separately. The fourth assignment of error
is overruled.
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{¶30} Kehoe claims in the first assignment of error that he was denied the
effective assistance of counsel because between conviction and sentencing, his
counsel did not meet with him or file the motions he requested to be filed,
specifically a motion for a new trial or for a judgment of acquittal.
In evaluating whether a petitioner has been denied effective
assistance of counsel, this court has held that the test is “whether
the accused, under all the circumstances, * * * had a fair trial and
substantial justice was done.” State v. Hester (1976), 45 Ohio St.2d
71, 74 O.O.2d 156, 341 N.E.2d 304, paragraph four of the syllabus.
When making that determination, a two-step process is usually
employed. “First, there must be a determination as to whether
there has been a substantial violation of any of defense counsel's
essential duties to his client. Next, and analytically separate from
the question of whether the defendant's Sixth Amendment rights
were violated, there must be a determination as to whether the
defense was prejudiced by counsel's ineffectiveness.” State v. Lytle
(1976), 48 Ohio St.2d 391, 396–397, 2 O.O.3d 495, 498, 358 N.E.2d
623, 627, vacated on other grounds (1978), 438 U.S. 910, 98 S.Ct.
3135, 57 L.Ed.2d 1154.
On the issue of counsel's ineffectiveness, the petitioner has the
burden of proof, since in Ohio a properly licensed attorney is
presumably competent. See Vaughn v. Maxwell (1965), 2 Ohio
St.2d 299, 31 O.O.2d 567, 209 N.E.2d 164; State v. Jackson, 64
Ohio St.2d [107] at 110–111, 18 O.O.3d [348] at 351, 413 N.E.2d
[819] at 822.
State v. Calhoun, 86 Ohio St.3d 279, 289, 1999-Ohio-102, 714 N.E.2d 905. “The
failure to prove either 1) a substantial violation or 2) prejudice caused by the
violation makes it unnecessary for a court to consider the other prong of the test.”
State v. Walker, 3d Dist. Seneca No. 13-15-42, 2016-Ohio-3499, 66 N.E.3d 349, ¶
20. “To show prejudice, the defendant must show a reasonable probability that, but
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for counsel's errors, the result of the proceeding would have been different.” State
v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 95. “The
prejudice inquiry, thus, focuses not only on outcome determination, but also on
‘whether the result of the proceeding was fundamentally unfair or unreliable.’”
State v. Montgomery, 148 Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180 quoting
Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993).
{¶31} Here, Kehoe claims that counsel was ineffective because he had to file,
without counsel’s assistance, three motions between conviction and sentencing.
Kehoe also claimed that counsel failed to have contact with him during that time.
The record shows that Kehoe did file motions pro se. The trial court dealt with these
motions during the sentencing hearing. The trial court noted that on March 10,
2020, Kehoe filed a pros se motion for a new trial. Tr. 4. Counsel informed the
court that he had reviewed Kehoe’s request and determined that there was no
grounds upon which to file the motion. Tr. 5. Although counsel admitted there
were no grounds, the trial court considered Kehoe’s argument as to why there should
be a new trial granted and as to the motion for a judgment of acquittal. Tr. 6-8. The
trial court then overruled those motions. Tr. 8. Counsel then continued to argue on
behalf of Kehoe at sentencing, including arguing for merger of the sentences and in
mitigation of a lengthy sentence.
{¶32} A review of the record shows that although counsel did not file the
requested motions, he did not do so not because he was ineffective but rather
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because he found no legal basis for doing so. Choosing not to file a motion because,
in one’s legal opinion, it would be frivolous is not an error. State v. Robinson, 108
Ohio App. 3d 428, 433, 670 N.E. 2d 1077 (3d Dist. 1996). Even if it had been an
error, Kehoe had no prejudice from the alleged error because the trial court still
considered the arguments. Thus, the outcome would not have been any different
regardless of whether counsel had filed the motions. The first assignment of error
is overruled.
{¶33} Having found no prejudicial error in the particulars assigned and
argued, the judgment of the Court of Common Pleas of Allen County is affirmed.
Judgment Affirmed
ZIMMERMAN and SHAW, J.J., concur.
/hls
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