DocketNumber: No. 22691.
Citation Numbers: 2009 Ohio 1040
Judges: BROGAN, J.
Filed Date: 3/6/2009
Status: Precedential
Modified Date: 4/17/2021
{¶ 2} O'Dell advances ten assignments of error on appeal. First, he contends he received constitutionally ineffective assistance of counsel because his trial attorney *Page 2
failed to argue that R.C.
{¶ 3} The present appeal stems from an incident that occurred in October 2007 when twelve-year-old E.D. spent the night at her friend K.B.'s house. O'Dell, a relative of K.B.'s mother and a family friend, also came to the house that evening. At some point, E.D. and O'Dell fell asleep on the same living room couch. K.B. and her mother fell asleep elsewhere in the living room. According to E.D., O'Dell began moving closer to *Page 3 her as she lay on the couch and pretended to sleep. He then moved his hands under a blanket that was covering her. E.D. testified that O'Dell proceeded to fondle her breasts under her shirt. He then unbuttoned her jeans, placed his hand in her underwear, and inserted his finger inside her vagina. K.B. testified that she awoke and saw O'Dell moving around under the blanket. O'Dell later went downstairs into the basement with K.B. that night. According to K.B., he asked her to have sex with him. E.D. testified that she heard K.B. downstairs telling O'Dell, "No, Randy, no." O'Dell testified in his own defense and denied touching E.D.'s breasts, placing his hand down her pants, inserting a finger in her vagina, or asking K.B. for sex. A jury found him guilty of rape and gross sexual imposition involving a child under age thirteen for his conduct with E.D. The trial court imposed an aggregate sentence of ten years to life in prison. This timely appeal followed.
{¶ 4} In his first two assignments of error, which are briefed together, O'Dell asserts that R.C.
{¶ 5} Upon review, we find O'Dell's first two assignments of error to be without merit. In relevant part, R.C.
{¶ 6} "(A)(1) No person shall engage in sexual conduct with another who is not the spouse of the offender * * * when any of the following applies:
{¶ 7} "* * *
{¶ 8} "(b) The other person is less than thirteen years of age, whether or not the offender knows the age of the other person." *Page 4
{¶ 9} O'Dell does not dispute the legislature's ability to impose strict liability with regard to an offender's knowledge of the victim's age under subsection (b). Instead, his argument addresses the "engage in sexual conduct" language of subsection (A)(1). O'Dell acknowledges that the "engage in sexual conduct" element also has been viewed as plainly imposing strict liability. Indeed, this court and others have held that no mens rea is required for engaging in the acts that constitute "sexual conduct" under subsection (A)(1). We addressed this issue in some detail in State v. Craver (April 24, 1989), Montgomery App. No. 11101. In that case, we reasoned:
{¶ 10} "The specific elimination of knowledge of the victim's age in subsection (A)(1)(b) does not support an inference that the legislature intended knowledge to be read into subsection (A)(1). Indeed, subsection (A)(1) only defines an offense when combined with either subsection (A)(1)(a) or subsection (A)(1)(b). As such, the specific elimination of knowledge of the victim's age better supports an inference, and is to us a plain indication, that the legislature intended that engaging in sexual conduct with a child under thirteen be a strict liability offense.
{¶ 11} "Except in the unusual circumstances embraced by subsection (A)(1)(a), or where the victim is under thirteen-subsection (A)(1)(b), or where the offender purposely compels the victim to submit by force or threat of force-subsection (A)(2), sexual conduct, without more, is not proscribed conduct. Hence, the legislature would have no reason toconsider a culpable mental state for merely engaging in sexualconduct. (emphasis added). The additional circumstances which make sexual conduct proscribed conduct under subsections (A)(1)(a) and (A)(2)do require a culpable mental state, i.e. ``purpose of preventing resistance' and ``purposely compel(ling) the (victim) to submit by *Page 5 force or threat of force,' respectively. However, the additional circumstance which makes sexual conduct proscribed conduct under subsection (A)(1)(b), i.e. the victim is under thirteen, does not require a culpable mental state. * * * All of this plainly indicates to us that the legislature intended to impose strict liability for engaging in sexual conduct with a child under thirteen."
{¶ 12} We later reached the same conclusion in State v. Wilson (Aug. 7, 1998), Montgomery App. No. 16728, 16752, opining that "[i]n order to find that sexual conduct occurred, all that is required is proof of the act proscribed." The Tenth District recently has agreed. See State v.Ferguson, Franklin App. No. 07AP-999,
{¶ 13} Courts have reached the same conclusion when reviewing other sex-offense statutes. See State v. Vaught, Summit App. No. 22846,
{¶ 14} In response to the foregoing case law, O'Dell insists that imposing strict liability for the act of "engaging in sexual conduct" under R.C.
{¶ 15} Ineffective assistance of counsel claims are evaluated under the two-prong analysis set forth in Strickland v. Washington (1984),
{¶ 16} Upon review, we conclude that O'Dell has failed to overcome the strong presumption that his trial counsel provided objectively reasonable and effective assistance. In reaching this conclusion, we note O'Dell's failure to cite, and our failure to find, any legal authority declaring R.C.
{¶ 17} The cases O'Dell cites on appeal fail to persuade us otherwise. In Squires, supra, we recognized that even strict liability crimes require proof that a defendant engaged in a voluntary act. See R.C.
{¶ 18} O'Dell also quotes Staples v. United States (1994),
{¶ 19} Finally, we reject O'Dell's argument that the trial court erred in failing to dismiss the rape charge sua sponte on the basis that R.C.
{¶ 20} We retain the discretion, of course, to consider a waived constitutional argument under a plain-error analysis. In re M.D. (1988),
{¶ 21} O'Dell has failed to persuade us that R.C.
{¶ 22} In his third and fourth assignments of error, which are briefed together, O'Dell argues that the penalty for violating R.C.
{¶ 23} Upon review, we find no merit in the foregoing assignments of error. O'Dell's argument is that his sentence of ten years to life in prison for engaging in sexual conduct with a twelve-year-old child in violation of R.C.
{¶ 24} Once again, we conclude that O'Dell's counsel did not provide ineffective assistance by failing to raise the foregoing argument below. In Craver, supra, we held that R.C.
{¶ 25} Nor did the trial court commit plain error by failing to find that O'Dell's sentence constituted cruel and unusual punishment. The third and fourth assignments of error are overruled.
{¶ 26} In his fifth and sixth assignments of error, which are briefed together, O'Dell argues that his trial counsel provided ineffective assistance by not seeking dismissal of the rape charge on the basis that no cognizable crime was alleged and that the trial court erred in not dismissing the rape charge for this reason. O'Dell's specific argument is that the rape charge is fatally defective because the indictment contains no culpable mental state for engaging in sexual conduct. Relying on State v. Colon,
{¶ 27} Upon review, we find no merit in O'Dell's argument, which presumes that engaging in sexual conduct with a twelve-year-old child is not a strict liability offense. In our analysis of his first two assignments of error, however, we concluded that a violation of R.C.
{¶ 28} In his seventh and eighth assignments of error, which are briefed together, O'Dell asserts that his trial counsel provided ineffective assistance by failing to renew an objection to the State's introduction of inadmissible other-acts evidence and that the trial court erred in admitting the evidence. These assignments of error concern testimony about O'Dell's solicitation of sex downstairs with K.B. after he inserted his finger inside E.D.'s vagina on the couch.
{¶ 29} On direct examination, E.D. testified, over defense counsel's objection, that she heard K.B. downstairs saying, "No, Randy, no." (Trial transcript at 37). On cross examination, defense counsel himself produced a copy of a statement E.D. had given to police after the events in question. The following exchange occurred between E.D. and defense counsel:
{¶ 30} "Q: "Okay. Now on the second page of that statement, you say that when Randy went downstairs with [K.B.], Randy was trying to finger [K.B.] but [K.B.] was pulling away. Now, I want you to look on the second page of that statement to see if you see that. Do you see it?"
{¶ 31} A: "Yes."
{¶ 32} Q: "Okay. How did you know that?"
{¶ 33} A: "I could hear and [K.B.] told me."
{¶ 34} Q: "You heard something and what else?"
{¶ 35} A: "[K.B.] told me."
{¶ 36} Q: "[K.B.] told you?" *Page 13
{¶ 37} A: "Yes."
{¶ 38} (Id. at 51-52).
{¶ 39} Later in the trial, the State called K.B. as a witness. The prosecutor asked her what O'Dell had said to her in the basement. K.B. responded that "he had asked me to have sex with him * * *." (Id. at 132). K.B. testified that she refused and went back upstairs after O'Dell made the request a second time. (Id. at 133). The prosecutor subsequently asked K.B. whether she had told E.D. about O'Dell requesting sex. K.B. responded that she had told E.D. (Id. at 134). Defense counsel did not object to any of this questioning. On cross examination by defense counsel, K.B. denied that O'Dell had tried to "finger" her downstairs in the basement. She also denied telling E.D. that O'Dell had tried to finger her. (Id. at 147-149). In his closing argument, defense counsel stressed the discrepancy in the testimony of E.D. and K.B. about whether K.B. said O'Dell had tried to finger her. (189, 193-194). The prosecutor argued on rebuttal that E.D., in her mind, had equated or confused "fingering" and sex. (Id. at 198).
{¶ 40} On appeal, O'Dell contends defense counsel provided ineffective assistance by not objecting to K.B.'s testimony that he asked her for sex in the basement. O'Dell argues that K.B.'s testimony was inadmissible under Evid. R. 404(B) and R.C.
{¶ 41} We are not persuaded that K.B.'s testimony about O'Dell asking her for *Page 14
sex was admissible under Evid. R. 404(B) or R.C.
{¶ 42} The State also suggests that K.B.'s testimony was admissible as proof of O'Dell's plan, scheme, or system. Evidence is admissible for this purpose when it "forms the immediate background of the offense alleged and it would be difficult to prove that the accused committed the crime alleged without also introducing evidence of other acts."Smith,
{¶ 43} Despite the foregoing conclusion, we find no reversible error for at least two reasons. First, we note that defense counsel at least arguably opened the door to K.B.'s testimony about what was said in the basement through his cross examination of E.D. On direct examination, the prosecutor merely elicited from E.D. that she had heard K.B. downstairs saying, "No, Randy, no." On cross examination, defense counsel himself then asked E.D. about K.B. claiming O'Dell had tried to "finger" her. The jury had heard no testimony about this until defense counsel elicited it. After defense counsel asked E.D. on cross examination whether K.B. had said O'Dell tried to finger her, the parties and the trial court reasonably may have concluded that the door was open for the State to ask K.B. herself what had happened in the basement and what she had told E.D. This may be why defense counsel did not object when K.B. testified about O'Dell asking her for sex downstairs.1
{¶ 44} Second, in his closing argument, defense counsel stressed the discrepancy in the testimony of E.D. and K.B. about whether K.B. had claimed O'Dell tried to finger her. Counsel did so in an effort to undermine E.D.'s credibility. Therefore, *Page 16
it appears that he may have allowed K.B.'s testimony to be admitted without objection so he could point out the inconsistency to the jury. Even if this course of action by defense counsel was unwise, debatable trial tactics do not constitute ineffective assistance of counsel.State v. Hess, Montgomery App. No. 21646,
{¶ 45} Finally, even if defense counsel provided deficient representation by not objecting to K.B.'s testimony, we find no reasonable probability that O'Dell would have been acquitted absent the testimony. In reaching this conclusion, we note that E.D.'s allegations were corroborated insofar as K.B. testified that she awoke and observed O'Dell moving around under the blanket covering E.D. In addition, E.D.'s allegations were corroborated by the testimony of W.D., her mother. W.D. testified that E.D. acted "distraught" and "withdrawn" immediately upon returning home from K.B.'s house. W.D. also testified that she noticed her daughter's bloody sanitary napkins after she returned home. W.D. thought it was unusual because it was not time for E.D.'s menstrual period. (Trial transcript at 87-89). This corroborates E.D.'s own testimony that O'Dell's act of inserting his finger inside her vagina caused her to bleed. (Id. at 57). Because we find no reasonable probability that O'Dell would have been acquitted absent K.B.'s testimony about him asking her for sex, the prejudice required for ineffective assistance of counsel has not been shown. State v.Scott, Montgomery App. No. 22430,
{¶ 46} In his ninth and tenth assignments of error, which are briefed together, O'Dell argues that his trial counsel provided ineffective assistance by not objecting to prosecutorial misconduct and that the trial court erred in not declaring a m istrial or taking some remedial action in response to the misconduct.
{¶ 47} The alleged misconduct occurred during the rebuttal portion of the prosecutor's closing argument. First, O'Dell contends the prosecutor improperly engaged in histrionic behavior by crying in front of the jury. Second, he claims the prosecutor improperly argued that he was a lawless person bent on doing whatever he wanted. Third, he contends the prosecutor improperly referred to K.B.'s allegation that he asked her for sex downstairs. O'Dell asserts that these instances of misconduct denied him a fair trial.
{¶ 48} Upon review, we are unpersuaded by O'Dell's arguments. To prevail on his prosecutorial misconduct claim, O'Dell must show that the prosecutor's conduct was improper and that it prejudiced his substantial rights. State v. Kelly, Greene App. No. 2004-CA-20,
{¶ 49} To support his claim that the prosecutor cried during her rebuttal argument, O'Dell has provided us with an affidavit from his trial counsel. In an October 2, 2008, decision and entry, however, we struck the affidavit from the record. Based on our review of a videotape, we also noted our inability to detect "any misconduct on the *Page 18
part of the prosecutor as it relates to her crying before the jury." Thus, the record contains no evidence to substantiate a claim that the prosecutor engaged in misconduct by crying in front of the jury.
{¶ 50} O'Dell's second argument concerns the following statement by the prosecutor: "This defendant thinks he can do whatever he wants and get away with it. No rules, no boundaries, no minor is off limits. And he's asking you to tell him that that's okay. Don't be fooled by that. Don't be fooled by a wolf in sheep's clothing." Taken literally, this statement is inaccurate insofar as the prosecutor opined that O'Dell was asking the jury to tell him it is okay to do whatever he wants with a minor. O'Dell testified at trial and denied engaging in any sexual conduct with E.D. Therefore, he was not asking the jury to condone sexual activity with a twelve-year-old child. He was asking the jury to find that no such activity took place. Counsel generally is given wide latitude in closing arguments, however, and viewing the prosecutor's remark in the context of her entire closing, we do not believe that it rose to the level of impermissible misconduct.
{¶ 51} Finally, O'Dell takes issue with the portion of the statement where the prosecutor told the jury "no minor is off limits." He contends this is an improper reference to K.B.'s testimony that he solicited her for sex downstairs after he engaged in sexual conduct on the couch with E.D. As an initial matter, however, it is unclear what was meant by the ambiguous reference to "no minor" being "off limits." The prosecutor just as well may have meant that O'Dell did not consider the twelve-year-old victim, E.D., to be "off limits." This portion of the closing argument does not mention K.B. by name, and it is not clear to us that the prosecutor was making an oblique reference to her. Even if the remark was intended as a reference to O'Dell's act of soliciting sex from K.B., the *Page 19 jury already had heard evidence about this occurring. We addressed the propriety of this evidence being admitted in our analysis of the seventh and eighth assignments of error. Because the evidence had been admitted, however, we cannot say O'Dell's trial counsel provided ineffective assistance by failing to object during closing argument, even assuming, arguendo, that the prosecutor's remark was intended as a reference to K.B. The prosecutor's reference to evidence that the trial court previously had admitted cannot constitute misconduct. Because we have found no prosecutorial misconduct, defense counsel did not provide ineffective assistance by failing to raise the issue, and the trial court did not commit plain error by failing to take any remedial action. The ninth and tenth assignments of error are overruled.
{¶ 52} Based on the reasoning set forth above, we affirm the judgment of the Montgomery County Common Pleas Court.
GRADY, J., concurs.
FAIN, J., concurs in judgment.
State v. Scott, 22430 (12-19-2008) , 2008 Ohio 6735 ( 2008 )
State v. Hess, 21646 (8-10-2007) , 2007 Ohio 4099 ( 2007 )
Smith v. Phillips , 102 S. Ct. 940 ( 1982 )
Staples v. United States , 114 S. Ct. 1793 ( 1994 )
State v. Ferguson, 07ap-999 (12-18-2008) , 2008 Ohio 6677 ( 2008 )