State v. D.S. , 2021 Ohio 1725 ( 2021 )

[Cite as State v. D.S., 2021-Ohio-1725.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109346
v. :
D.S., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART AND VACATED IN PART
RELEASED AND JOURNALIZED: May 20, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-638997-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Kelly N. Mason, Assistant Prosecuting
Attorney, for appellee.
Allison S. Breneman, for appellant.
EILEEN T. GALLAGHER, J.:
Defendant-appellant, D.S.,1 appeals his convictions and claims the
following three errors:
1 Pursuant to Loc.App.R. 13.2(B)(1), we refer to the appellant and the victims by
initials and generic terms to protect the victims’ privacy.
1. The jury found, against the manifest weight of the evidence, that the
appellant committed the acts charged in the indictment.
2. The evidence was not legally sufficient to sustain a guilty verdict.
3. Appellant was denied effective assistance of counsel in violation of
Amendments VI and XIV of the United States Constitution and Article
I, Section 10, of the Ohio Constitution.
We find some merit to the appeal, we affirm the trial court’s judgment
in part, and we vacate Counts 15 and 25 due to insufficient evidence.
I. Facts and Procedural History
D.S. was charged with 13 counts of rape in violation of R.C.
2907.02(A)(1)(b), three counts of gross sexual imposition (“GSI”) in violation of R.C.
2907.05(A)(4), ten counts of illegal use of a minor in nude material or performance
in violation of R.C. 2907.323(A)(2), three counts of child endangering in violation
of R.C. 2919.22(B)(1), three counts of having weapons while under disability in
violation of R.C. 2923.13(A)(2), three counts of attempted rape in violation of R.C.
2907.02(A)(1)(b), one count of kidnapping in violation of R.C. 2905.01(A)(4), and
two counts of felonious assault in violation of R.C. 2903.11(A)(1). The indictment
alleged that D.S. sexually abused his three daughters: Victim 1, Victim 2, and Victim
3 over a period of years.
Detective Terry Lowther, of the Cleveland Police Department, testified
at a jury trial that on April 10, 2019, D.S.’s wife, who is also the victims’ mother
(“Mother”), came to the Fifth District police station to report that D.S. had sexually
abused their children. (Tr. 734.) Lowther observed that Mother was “emotionally
distraught” in describing the abuse. (Tr. 735.) Lowther arranged for the children to
be taken by EMS to Rainbow Babies and Children’s Hospital for sexual assault
examinations and treatment. (Tr. 736.)
Sally McHugh, a social worker with the Cuyahoga County Department
of Child and Family Services (“CCDCFS”), testified that she was trained to
investigate child sexual abuse cases. (Tr. 744.) McHugh met the children at the
hospital but interviewed them the following day in a room where a detective could
observe the interview. (Tr. 753.) McHugh interviewed each child separately, but
they each described similar experiences. According to McHugh, two of the girls had
previously told Mother about the about the abuse, and Mother told them to “keep it
inside” because “she was going to figure it out.” (Tr. 757.) Mother failed to take
action, and the abuse continued. One of the victims told McHugh that D.S.
threatened to kill her if she told Mother or anyone. (Tr. 759.)
McHugh’s investigation revealed that there had been several prior
referrals to CCDCFS due to reports of suspected abuse and domestic violence, but
no action was taken because the allegations were “unsubstantiated.” (Tr. 757.)
However, following the disclosure of sexual abuse in April 2019, the agency obtained
custody of the children due to the fact that Mother knew of the abuse and did nothing
to protect the children. The children were placed in foster care where they have been
receiving regular counseling services. (Tr. 760.)
McHugh testified that there are three possible dispositions following a
sexual abuse investigation: (1) unsubstantiated, which means the allegations may be
true but there is no corroborating evidence; (2) indicated, which is a determination
that abuse likely happened based on a detailed disclosure from the child victim and
evidence that the victim has consistently told other people; and (3) substantiated,
which is a determination that the abuse happened based on an admission by the
perpetrator, medical evidence, witnesses who observed the abuse, or other
corroborating evidence. (Tr. 749-750.)
McHugh found the sexual abuse allegations in this case were
substantiated based on the victims’ detailed disclosures to her, the victim’s
disclosures to the sexual assault nurse examiner (“SANE”) at the hospital, the fact
that the victims knew about each other’s experiences, and because some of the
victims were together when the abuse occurred. (Tr. 764.) McHugh testified that
she also believed the children because they recounted “details about certain
activities and devices that they shouldn’t have known at their age[s].” (Tr. 783.) For
example, Victim 2 told her that D.S. used a pump to “pump his penis up.” (Tr. 784.)
Victim 1 also testified that she observed D.S. use the penis pump. (Tr. 1223, 1237-
1240.)
Brandalyn Kemp, the children’s therapist, testified that she began
counseling the victims in April 2019, shortly after they were taken into custody. (Tr.
825.) Kemp testified that all three victims suffered from severe anxiety, flashbacks,
and nightmares and that, based on their symptoms, she diagnosed all three of them
with posttraumatic stress disorder (“PTSD”). (Tr. 835.)
All three victims provided similar testimony. The victims explained
that the abuse episodes usually began when D.S. ordered one of them
to go upstairs to his bedroom and remove her clothes. The girls
testified that D.S. “greased” his penis with vegetable oil or Vaseline
before inserting it into their vaginas. (Tr. 866-867, 894.) They also
separately told Hackett that he regularly used Vaseline before sex. (Tr.
1101, 1105, 1125.) Detective Timothy Clark, a special investigator with
the Cuyahoga County Prosecutor’s Office, authenticated several nude
pictures of one of the victims and testified that an open jar of Vaseline
was depicted in several of the pictures.
(Tr. 1348, 1496-1497.)
Victim 2, who was 13 years old at the time of trial, testified that D.S.
sometimes used a penis pump before raping her. She explained that he would “put
it on his private part and he’d have to hold the knob and press on it, and then it
would do something to his private part.” (Tr. 853.) According to Victim 2, D.S. kept
the pump in a bag under clothes in his dresser. (Tr. 855.) Victim 2 also identified
“rubber bands” that he put on his penis to prevent her from getting pregnant. (Tr.
855-856.)
Victim 2 testified that sometimes D.S. “put his penis in [her] private
part,” and sometimes he made her “suck his penis.” (Tr. 859, 860.) Victim 2
explained that the term “private part” refers to either D.S.’s penis or her vagina. (Tr.
853, 859.) When she sucked his penis, “white stuff came out.” (Tr. 860.) When
asked how often D.S. made Victim 2 do these things, she replied that it “happened
mainly every day” since she was seven years old. (Tr. 861.)
Victim 2 described a time when D.S. raped her and her sister, Victim 1,
simultaneously. She stated:
We both had our clothes off and he put, first he had put his penis into
my private part and then he was like, while he was doing that, he was
putting his fingers into my big sister’s private part.
(Tr. 862.) She further explained that D.S. “took turns” doing this: “first it was mine
and then it was my big sister and then it would go back to me.” (Tr. 862.) D.S. told
the girls he would kill them if they told their mother about the abuse. (Tr. 863.)
According to Victim 2, D.S. also took pictures of her in a state of nudity. (Tr. 895.)
Victim 3, who was 12 years old at the time of trial, testified that D.S.
often choked her and told her that he hates her. (Tr. 987, 990.) She explained that
she could not breathe when he choked her and sometimes the choking caused
bruises. (Tr. 990-991.) D.S. beat Victim 3 and her sisters with a belt, and the belt
left marks on her body. (Tr. 992-994.)
Victim 3 testified that D.S. first started assaulting her when she was 11
years old. First, he put his fingers in her vagina, but later put his penis “in [her]
butt.” (Tr. 998-999.) Other times, D.S. put his penis in Victim 3’s mouth. (Tr. 1005,
1050.) D.S. also used his phone to take several pictures of Victim 3 naked. (Tr.
1009.) Victim 3 testified that D.S. put his fingers in her vagina “more than one time,”
put his penis in her vagina “more than one time,” put his penis “in her butt * * *
more than one time,” and put his mouth on her vagina “sometimes.” (Tr. 1018,
1050.)
Victim 1 testified that D.S. first started sexually abusing her when she
was five years old and they lived in their old house as opposed to their current
residence. During the first incident, D.S. woke Victim 1 up while she was sleeping
and placed his penis in her mouth. (Tr. 1202.) Victim 1 testified that when she was
seven years old, D.S. put his penis “in [her] butt.” (Tr. 1214-1215.) Victim 1
explained that the abuse happened “every so often” when she was younger and more
frequently as she got older. (Tr. 1204, 1242.)
Most of the abuse occurred in the family’s current home. Victim 1
testified that D.S. anally raped her twice when she was 12 years old. (Tr. 1242-1243.)
She testified that on other occasions, “he stuck his private part in [her] private part,”
and that he sometimes rubbed her breasts under her clothes and over her clothes.
(Tr. 1206, 1244.) Victim 1 testified that the word “private” referred to his penis and
her vagina. (Tr. 1201-1202, 1206.)
According to Victim 1, D.S. also took pictures of Victim 1 with her
clothes off “at least three times.” (Tr. 1251.) He told her to “do certain poses” when
he took the pictures and showed them to her before deleting them. (Tr. 1252.) He
told Victim 1 that he deleted the pictures so that Mother “wouldn’t find out.” (Tr.
1253.) Victim 1 knew when her sisters were being abused and now suffers from
flashbacks, nightmares, and trouble sleeping. (Tr. 1257, 1262.) Victim 1 testified
that D.S. last raped her the night before Mother reported the abuse to the police in
April 2019.
Kathleen Hackett (“Hackett”), the SANE nurse at Rainbow Babies and
Children’s Hospital, who examined the victims, testified that when a victim is
regularly assaulted once a week or once every two weeks, it is difficult for the victim
to remember every detail of the event because victims tend to disassociate from the
experiences. (Tr. 1089.) There are also other issues that could impair a victim’s
ability to remember the details of such a traumatic event. (Tr. 1089.)
Hackett also explained that nonfatal strangulation often occurs
during sexual assaults. (Tr. 1094.) A strangulation event prevents memories from
being formed because the brain is deprived of oxygen. Hackett also explained that
the loss of oxygen that occurs during strangulation can “cause long-term health
consequences such as strokes, miscarriages and all of that.” (Tr. 1131.)
According to Hackett, all three victims separately reported that the
abuse occurred often, that D.S. threatened to kill them if they told anyone, that he
choked them, and that he took pictures of the girls naked. (Tr. 1102, 1123, 1124.)
Victim 3 told Hacket that “one time * * * [D.S.] stuck his finger up my vagina and
made it bleed.” (Tr. 1131.)
Clark testified that he extracted photographs from D.S.’s LG
smartphone. Clark authenticated several photographs extracted from the phone
that depicted the victims without any clothes. (Tr. 1344-1350.) Some of the
photographs he identified were taken on April 7, 2019, three days before Mother
reported the abuse to police.
After the state rested, the defense called Mother to testify. Mother
testified that the victims were born in 2004, 2006, and 2007. Thereafter, she
asserted her Fifth Amendment right against self-incrimination and refused to
answer any other questions.
D.S. testified on his own behalf and claimed that he has had difficulty
maintaining an erection ever since he was injured in a bicycle accident in 2005. He
claimed that he took Viagra and Cialis for erectile dysfunction, but they did not work.
His doctor later prescribed a penis pump, and D.S. claimed the penis pump did not
work either. (Tr. 1662-1663.) He denied he ever assaulted any of the victims and
asserted that he was telling the truth and they were lying. (Tr. 1678, 1706.)
However, on cross-examination, D.S. admitted that even though he
suffered from erectile dysfunction since 2005, he fathered two children who were
born in 2006 and 2007. He also admitted that he had vaginal sex with his wife until
2009. When the prosecutor confronted D.S. with condoms seized by police during
the search of his home, he admitted that he kept them so as not “to get anyone
pregnant.” (Tr. 1713.) When asked why he would need condoms if he could not get
an erection, he explained that he kept them “[f]or back up, just in case.” (Tr. 1713.)
D.S. also admitted that he had three firearms even though he was prohibited from
possessing firearms due to his prior aggravated robbery and felonious assault
convictions. (Tr. 1716-1717.)
D.S. acknowledged that he “spanked” the victims with a belt and that
CCDCFS had previously investigated him after the children went to school with
marks on their bodies. (Tr. 1718, 17211, 1724.) At first, he denied he hit the children,
but later admitted that he left marks on their bodies, stating “Yes, I had a heavy
hand.” (Tr. 1725.)
The prosecutor confronted D.S. with photographs of the victims not
wearing any clothes. He disclaimed the pictures, stating “I can’t look at my babies
like this.” (Tr. 1727.) D.S. then denied knowing how the pictures got on his phone.
(Tr. 1733.)
Finally, D.S. admitted on cross-examination that he continued to take
Viagra and Cialis though 2019 and never complained to his doctor of erectile
dysfunction until July 2019, after he was arrested and charged with the offenses in
this case. (Tr. 1751.)
Based on the evidence presented at trial, the jury found D.S. guilty of
all counts in the indictment. The court further found him guilty of notice of prior
conviction, repeat violent offender, and sexually violent predator specifications.
D.S. was sentenced to life in prison without the possibility of parole. He now appeals
his convictions.
II. Law and Analysis
A. Manifest Weight of the Evidence
In the first assignment of error, D.S. argues his convictions are against
the manifest weight of the evidence because the victims’ testimony was not credible.
He contends the victims’ testimony was inconsistent, that they have a reputation for
lying, and that they wanted to get rid of their father so that their mother could take
his money.
The criminal manifest-weight-of-the-evidence standard addresses
the evidence’s effect of inducing belief. State v. Thompkins, 78 Ohio St.3d 380, 386,
678 N.E.2d 541 (1997). In a manifest-weight-of-the-evidence analysis, “a reviewing
court asks whose evidence is more persuasive — the state’s or the defendant’s?”
State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25. 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, 485 N.E.2d 717 (1st
Dist.1983).
In conducting such a review, the Ohio Supreme Court has stated that
the appellate court “sits as a ‘thirteenth juror’ and disagrees with the factfinder’s
resolution of conflicting testimony.” Id. at 546-547, quoting Tibbs v. Florida, 457
U.S. 31, 45, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). The Supreme Court’s
characterization of the appellate court as a “thirteenth juror” refers to the appellate
court’s “‘discretionary power to grant a new trial.’” Id. at 547, quoting Martin at 175.
As a “thirteenth juror,” the appellate court may disagree with the factfinder’s
resolution of the conflicting evidence and, in effect, create a deadlocked jury, which
requires a new trial.
However, our status as a “thirteenth juror” is not equal to that of the
other twelve jurors, who are uniquely positioned to view the witnesses’ demeanor,
gestures, facial expressions, and voice inflections. These outward behaviors are not
evident in a written transcript. Demeanor is not what the witness says, but the
manner in which he or she says it. Demeanor evidence is invaluable in assessing a
witness’s credibility, yet it is totally lost in transmission to the court of appeals. It is
for this reason that “the weight to be given the evidence and the credibility of the
witnesses are primarily for the trier of facts.” State v. DeHass, 10 Ohio St.2d 230,
227 N.E.2d 212 (1967), paragraph one of the syllabus.
As previously stated, D.S. contends the victims’ testimony was
inconsistent and that they have a reputation for lying. However, D.S. does not
identify any evidence to support his assertion that the victims had a reputation for
lying. Although Victim 3 told McHugh that D.S. choked her while he raped her and
stated at trial that he did not choke her while raping her, she testified that D.S.
frequently choked her and raped her. (Tr. 988, 996, 998, 999, 1005, 1006-1007.)
Her sisters separately corroborated the fact that D.S. physically beat and choked
Victim 3 more than the other two victims. (Tr. 871, 1195.)
Moreover, the victims separately and independently described D.S.’s
abusive behavior and each victim’s separate description was consistent with the
others’ descriptions. D.S. regularly ordered each victim to go upstairs into his
bedroom, told her to take her own clothes off, and then raped them. They all three
reported that D.S. “greased” his penis with Vaseline or vegetable oil before inserting
his penis into their vaginas. (Tr. 866-867, 1101, 1105, 1125.) Some of photographs
extracted from D.S.’s phone depicting the victims in a state of nudity also showed an
open jar of Vaseline on the bed, which further corroborated the victims’ testimony.
Two of the victims testified that D.S. used a penis pump before he had
sex. (Tr. 853-854, 1220.) The victims had identical descriptions of the pump, the
bag D.S. stored it in, and the drawer he kept it in. (Tr.853, 1218.) When shown the
pump seized from D.S.’s drawer during the search of the house, both victims
identified the pump as the one they were describing. The victims also reported D.S.’s
use of the penis pump to McHugh. (Tr. 783.) McHugh testified that the victims
would not normally have knowledge of penis pumps at their age. (Tr. 816.) Indeed,
D.S., himself, acknowledged that the penis pump belonged to him. (Tr. 1662, 1708,
1711-1712.)
The three victims were each diagnosed with PTSD as a result of
trauma they experienced. Kemp testified that she diagnosed them with PTSD based
on their symptoms, which invariably included “severe anxiety, flashbacks, and
nightmares.” (Tr. 834.) The victims themselves also testified that they suffered
from these symptoms. (Tr. 890, 1017, 1262.)
D.S. nevertheless argues that his illegal use of a minor in nude material
or performance convictions are not supported by the weight of the evidence because
someone else could have taken the pictures. However, all three victims testified that
D.S. took nude photographs of them on his phone. (Tr. 895, 957, 960, 1009, 1251.)
They also consistently stated that after taking the pictures, D.S. deleted them
because he did not want Mother to see them. (Tr. 896, 1047, 1253.) When shown
the cell phone that Clark extracted the photographs from, all three victims identified
the phone as the phone D.S. used to take naked photographs of them. (Tr. 897, 1010,
1254.)
D.S. contends the victims lied about the abuse in order to get rid of
him and take his money. However, two of the victims testified that despite the
abuse, they still love D.S. (Tr. 920, 1019.) And, other than the fact that D.S. had
some money saved in the bank, there is no evidence that the children were motivated
to lie in order to get his money.
The jury listened to the witnesses; observed their demeanor, gestures,
and voice inflections; and used these observations to assess their credibility and
determined the victims were credible. Although there were a few discrepancies
between what Victim 3 reported to investigators and her testimony at trial, we find
nothing in the record to suggest that the jury lost its way and created such a manifest
miscarriage of justice that D.S.’s convictions must be reversed and a new trial
ordered.
The first assignment of error is overruled.
B. Sufficiency of the Evidence
In the second assignment of error, D.S. argues the evidence was not
legally sufficient to sustain his convictions. D.S. does not dispute that evidence was
presented to support each of his convictions. He argues that the victims’ testimony
is not enough to support his convictions because they lacked credibility and offered
“varying accounts.” (Appellant’s brief p. 16.)
However, credibility is not a factor in the sufficiency analysis. “[T]he
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, ¶ 13. “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.
1. Rape
D.S. was convicted of 13 counts of rape in violation of R.C.
2907.02(A)(1)(b), which states that “[n]o 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.” R.C. 2907.01(A)(1) defines “sexual conduct” as
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 * * * into the vaginal or anal opening of another. Penetration,
however slight, is sufficient to complete vaginal or anal intercourse.
Victim 2 turned 13 years old in May 2006, and D.S. was arrested in
April 2019. Therefore, because D.S. was arrested before Victim 2’s 13th birthday
and no further abuse occurred after his arrest, all of the abuse she described at trial
occurred when she was under the age of 13.
Although Victim 2 testified that D.S. raped her “mainly every day,” she
also described several specific incidents of rape. On one occasion, D.S. forced her to
suck his penis. Victim 2 explained that on this particular occasion, “[t]here was
white stuff coming out and that [she] had to swallow it.” (Tr. 860.) Another time,
D.S. simultaneously raped Victim 2 and Victim 1 She explained that while D.S. was
vaginally raping her, he digitally penetrated Victim 1’s vagina. He then switched and
vaginally raped Victim 1 while digitally penetrating Victim 2. (Tr. 862.)
Victim 2 testified that one day, after raking leaves, she went into the
house to use the bathroom. D.S. followed her into the bathroom, rubbed her breasts
and forced her to suck his penis. (Tr. 865.) According to Victim 2, D.S. did not
ejaculate this time. (Tr. 866.) On a different day, D.S. told Victim 2 to go to his
bedroom where he “greased” his penis and vaginally raped her on the bed. While
they were having sex, Mother pulled into the driveway and D.S. quickly put his
clothes back on and sprayed air freshener in the room. (Tr. 868.)
Victim 2 testified that D.S. vaginally raped her and put his fingers in
her vagina during another incident in D.S.’s bedroom. She explained that while she
was cleaning, D.S. told her to go to his room and take off her clothes. After he raped
her, Victim 2 stated that her mother was home, and D.S. slapped her across the face
so hard that he left red marks on her face. (Tr. 869.) One time, D.S. handcuffed her
to the bed and raped her. (Tr. 875.) And another time, he raped her on the table in
the living room. (Tr. 895.) Thus, Victim 2 testified that D.S. raped her at least seven
times while she was under 13 years of age.
Victim 3 was 12 years old at the time of trial and was, therefore, also
under 13 years of age when D.S. abused her. Like Victim 2, Victim 3 testified that
D.S. raped her numerous times since she was eight or nine years old. (Tr. 987.) She
stated that D.S. raped her vaginally, anally, and with his fingers. (Tr. 996, 998, 999.)
She explained that he raped her in her bedroom, her sister’s bedroom, and in his
bedroom. (Tr. 998.) She also stated that D.S. put his penis in her mouth “more than
one time.” (Tr. 1007.) Therefore, according to Victim 3’s testimony, D.S. raped
Victim 3 at least five times.
Victim 1 testified that D.S. also repeatedly raped her over the period
of several years. She stated that she was five years old and living in their old house
when the abuse began. (Tr. 1198.) She explained that she was sleeping and her
mother was at work when D.S. entered her bedroom and put his penis in her mouth.
(Tr. 1202.) Victim 1 further stated that D.S. anally raped her once when she was
seven years old and twice when she was 12 years old. (Tr. 1242-1243.) According to
Victim 1, D.S. anally raped her “more than five times.” (Tr. 1215.) Thus, Victim 1
described at least four different incidents of rape that occurred when she was under
13 years of age. However, he also vaginally raped her after she reached 13 years of
age. (Tr. 1205-1206, 1214-1215.)
Victim 2 provided sufficient evidence that D.S. raped her at least seven
times when she was under 13 years of age. Victim 3 provided sufficient evidence
that D.S. raped her at least five times while she was under 13 years of age. And
Victim 1 provided sufficient evidence that D.S. raped her at least four times while
she was under the age of 13. Therefore, there was sufficient evidence to support a
finding that D.S. committed 13 counts of rape of a child under 13 years of age.
2. GSI
D.S. was convicted of three counts of gross sexual imposition in
violation of R.C. 2907.05(A)(4). To prove gross sexual imposition in violation of
R.C. 2907.05(A)(1), the state had to prove that D.S. had sexual contact with a child
under the age of 13. R.C. 2907.01(B) defines “sexual contact” as “any touching of an
erogenous zone of another, including without limitation the thigh, genitals, buttock,
pubic region, or, if the person is a female, a breast, for the purpose of sexually
arousing or gratifying either person.” R.C. 2907.01(B).
Victim 2 testified that during at least two incidents of rape, D.S.
rubbed her breasts either before or during the actual rape. (Tr. 865, 894-985.)
Victim 3 testified that D.S. “sometimes” put his mouth on her vagina. (Tr. 1050.)
Victim 1 testified that D.S. often touched her naked buttock and rubbed his penis on
her naked buttock. (Tr. 1212.) Therefore, there was sufficient evidence to support
three GSI convictions.
3. Minor in Nude Material or Performance
D.S. was convicted of ten counts of illegal use of a minor in nude
material or performance in violation of R.C. 2907.323(A)(2), which states, “[n]o
person shall * * * photograph the person’s child * * * who is a minor * * *, in a state
of nudity * * * .”
All three victims testified that D.S. routinely took pictures of them in
a state of nudity. (Tr. 895-896, 1009, 1133.) Clark testified that he used a program
called Cellebrite to extract data from D.S.’s LG smart phone. He identified over ten
photographs that were extracted from D.S.’s phone and testified that two naked girls
were depicted in them. (Tr. 1340-1341, 1351, 1360.) D.S., himself, verified naked
pictures of his daughters, exclaiming “I can’t look at my babies like this.” (Tr. 1727.)
After identifying that Victim 2 and Victim 1 were depicted in the photographs, D.S.
complained: “I don’t want to look at the photograph. I don’t want to look at my
daughter.” (Tr. 1732.) Therefore, there was sufficient evidence to support ten counts
of illegal use of a minor in nude material or performance.
4. Child Endangering
D.S. was convicted of three counts of child endangering in violation of
R.C. 2919.22(B)(1), which states that no person shall “torture or cruelly abuse” a
child under 18 years of age.
The rape of a child is a form of child-sexual abuse. See, e.g., State v.
Butts, 8th Dist. Cuyahoga No. 108381, 2020-Ohio-1498. And since we have already
determined that there was sufficient evidence to support at least 13 counts of rape
against three children under the age of 13, there is sufficient evidence that he cruelly
abused three children under the age of 18. Therefore, there was sufficient evidence
to support D.S.’s three child endangering convictions.
5. Having Weapons While Under Disability
D.S. was charged with three counts of having weapons while under
disability in violation of R.C. 2923.13(A)(2). R.C. 2923.13(A)(2) states, in relevant
part, that “no person shall knowingly acquire, have, carry, or use any firearm * * * if
* * * [t]he person * * * has been convicted of any felony offense of violence[.]”
D.S. admitted on cross-examination that he possessed three firearms
even though he had previously been convicted of violent offenses. (Tr. 1717.)
Indeed, D.S. admitted that he possessed the guns illegally. (Tr. 1717.) Therefore,
there was sufficient evidence to support D.S.’s three having weapons while under
disability convictions.
6. Attempted Rape
D.S. was convicted of three counts of attempted rape in violation of
R.C. 2907.02(A)(1)(b). Two counts were allegedly committed against Victim 2 and
one count was allegedly committed against Victim 3
As previously stated, R.C. 2907.02(A)(1)(b) prohibits one from
engaging in sexual conduct with a child under the age of 13. R.C. 2907.01(A) defines
“sexual conduct” as:
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. Penetration, however slight, is sufficient to
complete vaginal or anal intercourse.
In Counts 14 and 15, the indictment alleges that D.S. attempted to
rape Victim 2 by way of fellatio and vaginal intercourse. In Count 25, the indictment
alleges that D.S. attempted to rape Victim 3 by way of fellatio. Apart from the
successful attempts where rape actually occurred, we find no evidence of
unsuccessful attempts to rape Victim 3 We also find no evidence that D.S.
attempted, but failed to vaginally rape Victim 2
However, Victim 2 described at least one instance where D.S.
attempted to have her perform fellatio, but the attempt was not successful. Victim
2 was sleeping in her sister’s room when she was awakened by the sound of D.S.
entering the bedroom. Victim 2 explained that D.S. “was turning to suck my private
part while I was trying to do his.” (Tr. 891.) Victim 2 described attempts to “suck”
D.S.’s penis, but she never stated that his penis actually entered her mouth. (Tr.
891-893.) Therefore, her testimony supports one count of attempted rape as alleged
in Count 14 of the indictment.
7. Kidnapping
D.S. was convicted of kidnapping Victim 2 in violation of R.C.
2905.01(A)(4). R.C. 2905.01(A)(4) as alleged in Count 12 of the indictment. The
indictment included a furthermore clause alleging that Victim 2 was under 18 years
of age at the time of the offense.
R.C. 2905.01(A)(4) provides, 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, for any of the following
purposes:
* * *
(4) To engage in sexual activity, as defined in section 2907.01 of the
Revised Code, with the victim against the victim’s will[.]
R.C. 2907.01(C) defines “sexual activity” as “sexual conduct or sexual
contact, or both.” As previously stated, “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. Penetration, however slight, is sufficient to
complete vaginal or anal intercourse.
R.C. 2907.01(A). The term “sexual contact” means “any touching of an erogenous
zone of another, including without limitation the thigh, genitals, buttock, pubic
region, or, if the person is a female, a breast, for the purpose of sexually arousing
or gratifying either person.” R.C. 2907.01(B).
The Supreme Court of Ohio has held that “implicit within every
forcible rape * * * is a kidnapping” because the victim’s liberty is restrained during
the act of forcible rape. State v. Logan, 60 Ohio St.2d 126, 130, 397 N.E.2d 1345(1979). To establish the element of force in a rape case of a minor child, neither
express threat of harm nor evidence of significant physical restraint need be proven
if the defendant holds a position of authority over the child. State v. Dye, 82 Ohio
St.3d 323, 695 N.E.2d 763 (1998), paragraph one of the syllabus. The adult’s
position of authority and power in relation to the child’s vulnerability 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.
As Victim 2’s father, D.S. held a position of authority over Victim 2,
particularly in light of her young age. And since there was sufficient evidence to
establish that D.S. raped Victim 2 at least seven times, there was sufficient evidence
to support at least one count of kidnapping.
8. Felonious Assault
D.S. was convicted of two counts of felonious assault in violation of
R.C. 2903.11(A)(1). R.C. 2903.11(A)(1) states that “[n]o person shall knowingly * * *
[c]ause serious physical harm to another.” The term “serious physical harm” is
defined as:
(a) Any mental illness or condition of such gravity as would normally
require hospitalization or prolonged psychiatric treatment;
(b) Any physical harm that carries a substantial risk of death;
(c) Any physical harm that involves some permanent incapacity,
whether partial or total, or that involves some temporary, substantial
incapacity;
(d) Any physical harm that involves some permanent disfigurement or
that involves some temporary, serious disfigurement;
(e) Any physical harm that involves acute pain of such duration as to
result in substantial suffering or that involves any degree of prolonged
or intractable pain.
R.C. 2901.01(A)(5)(a)-(e).
The state maintained that D.S. committed felonious assault by
choking Victim 3 on multiple occasions. Indeed, Victim 3 testified that D.S. choked
her “sometimes.” (Tr. 987.) However, in order for choking to constitute felonious
assault, the victim must sustain “serious physical harm.” In cases where choking
constituted felonious assault, the victim lost consciousness and the loss of
consciousness met the serious physical harm element of felonious assault. See State
v. Revere, 8th Dist. Cuyahoga No. 108386, 2020-Ohio-572, ¶ 22, citing State v.
Chambers, 8th Dist. Cuyahoga No. 99864, 2014-Ohio-390, ¶ 23 (Temporary loss of
consciousness constitutes a temporary substantial incapacity, and, therefore,
serious physical harm.); see also State v. Redwine, 12th Dist. Brown No. CA2006-
08-011, 2007-Ohio-6413, ¶ 32 (concluding that “[l]osing consciousness as a result
of an assault constitutes serious physical harm”); State v. Booker, 2d Dist.
Montgomery No. 22990, 2009-Ohio-1039, ¶ 16 (concluding that “[t]emporary
unconsciousness constitutes a temporary substantial incapacity, and therefore
serious physical harm”); State v. Waugaman, 5th Dist. Richland No. 18CA18, 2019-
Ohio-1102, ¶ 29 (A loss of consciousness due to choking would support a finding of
serious physical harm. A loss of consciousness, irrespective of its duration, satisfies
the definition of “temporary, substantial incapacity.”); State v. Wimpey, 6th Dist.
Lucas No. L-18-1262, 2019-Ohio-4823, ¶ 23 (“Being rendered unconscious, no
matter how brief, qualifie[s] as a ‘temporary substantial incapacity,’ which satisfie[s]
the serious physical harm requirement.”); State v. McSwain, 8th Dist. Cuyahoga No.
83394, 2004-Ohio-3292, ¶ 29 (“Unconsciousness is a state of temporary,
substantial incapacity sufficient to constitute serious physical harm.”).
Since there is no evidence that Victim 3 ever lost consciousness when
D.S. choked her, these acts of choking, by themselves, do not constitute felonious
assault.
However, as previously stated, “serious physical harm” includes “[a]ny
mental illness or condition of such gravity as would normally require hospitalization
or prolonged psychiatric treatment.” R.C. 2901.01(A)(5)(a). In State v. Cooper, 139
Ohio App.3d 149, 743 N.E.2d 427 (12th Dist.2000), the defendant was convicted of
four counts of felonious assault in violation of R.C. 2903.11(A)(1). Each of the four
counts was based on the defendant’s abusive treatment of her four children over a
period of time that resulted in each child developing a mental illness. Id. at 158. The
defense argued the trial court should have dismissed all four of the felonious assault
charges because a single felonious assault charge could not be based upon numerous
acts occurring over the course of many years. The court in Cooper rejected that
argument, explaining that “R.C. 2903.11(A)(1) does not mandate that a defendant
perform a single act in order to commit the crime of felonious assault by causing a
single injury in the form of mental illness.” Id. at 160.
In this case, all three victims were diagnosed with PTSD and required
ongoing psychiatric treatment as a result of D.S.’s abusive conduct. Therefore, there
was sufficient evidence to support at least two counts of felonious assault.
Having determined that there was insufficient evidence to support two
attempted rape convictions but that there was sufficient evidence to support the
remaining convictions, we sustain the second assignment of error in part and
overrule it in part.
C. Ineffective Assistance of Counsel
In the third assignment of error, D.S. contends his convictions should
be reversed because his Sixth Amendment right to the effective assistance of counsel
was violated.
D.S.’s trial counsel stated on the record at the end of trial that he
thought his performance was ineffective because he had trouble hearing. D.S. now
contends his trial counsel was ineffective and that his right to a fair trial was
prejudiced because his trial counsel could not hear.
To establish ineffective assistance of counsel, the defendant must
demonstrate that counsel's performance fell below an objective standard of
reasonable representation and that he or she was prejudiced by that deficient
performance. Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). Prejudice is established when the defendant demonstrates “a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694.
Although counsel stated on the record that he thought his
performance was deficient, we find no evidence of deficient performance. D.S.
asserts his trial counsel could not hear the witnesses, but this assertion is not
supported by the record. The trial court allowed counsel to sit closer to the witnesses
so he could hear them, and the record reflects that he was wearing his hearing aids.
D.S. does not identify anywhere in the record establishing that counsel could not
hear, nor does he identify any specific places in the record where counsel’s
performance was deficient as a result of poor hearing. Counsel thoroughly cross-
examined the state’s witnesses and objected appropriately throughout the trial,
which indicates that counsel could hear. We, therefore, cannot say that D.S. was
prejudiced because his counsel was hearing impaired and could not hear.
The third assignment of error is overruled.
The trial court’s judgment is affirmed in part. Counts 15 and 25,
alleging attempted rape, are vacated due to insufficient evidence.
It is ordered that appellant and appellee share 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.
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
MICHELLE J. SHEEHAN, J., CONCUR