State v. Minor

[Cite as State v. Minor, 2016-Ohio-5492.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 15AP-919
v. : (C.P.C. No. 14CR-3493)
Ivan Minor, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on August 23, 2013
On brief: Ron O'Brien, Prosecuting Attorney, and Laura R.
Swisher, for appellee.
On brief: Mark M. Hunt and Brian J. Rigg, for appellant.
APPEAL from the Franklin County Court of Common Pleas
BRUNNER, J.
{¶ 1} Defendant-appellant, Ivan Minor, appeals a judgment of the Franklin
County Court of Common Pleas sentencing him to serve a total of 38 years following
guilty verdicts in a jury trial on counts of felonious assault, rape, and kidnapping. Because
we find no merit in any of Minor's arguments, we affirm the judgment of the trial court.
I. FACTS AND PROCEDURAL POSTURE
{¶ 2} On July 2, 2014, Minor was indicted (in addition to three other co-
defendants1) for one count of aggravated robbery, six counts of felonious assault, six
counts of rape, and two counts of kidnapping. He pled not guilty on July 7, 2014 and
ultimately exercised his right to a jury trial.
1 One of these co-defendants was ultimately not convicted of any offenses, and thus, he is not named.
Discussion in this decision is limited to the three defendants who were convicted of crimes concerning the
incidents in question.
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No. 15AP-919
{¶ 3} The State tried Minor and his three co-defendants in a single proceeding
that began on August 3, 2015. At the outset of the trial, the defense stipulated that DNA
was properly collected and firearms found at the scene were operable. In addition, one of
the two alleged victims in the case, B.P., had not responded to the subpoena, and the
State, therefore, sought and received a warrant for his arrest. Following opening
statements, the State began to call witnesses.
{¶ 4} The State first called a Columbus police officer. The officer testified that on
June 25, 2014, at 2:24 a.m., he was dispatched to Mount Carmel West Hospital where he
spoke to a female victim, A.B. He testified that A.B. appeared shaken but the officer
admitted he did not know of what she was afraid. Neither A.B. nor the other alleged
victim, B.P., had (to his knowledge) called the police, and A.B. did not name anyone who
might have hurt her.
{¶ 5} The second witness was also a Columbus police officer. He testified that he
picked up A.B. from the hospital for the purpose of identifying a residence on North
Harris Avenue where some events relevant to the case were alleged to have transpired.
The officer testified that the residence in question was 125 North Harris Avenue.
{¶ 6} The State next called a detective from the crime scene search unit of the
Columbus Division of Police. This witness identified photographs taken at 125 North
Harris Avenue as well as items of physical evidence recovered. Among the photographs
were depictions of a broom with a pole-style handle, a broom handle without a broom end
attached, a blue bucket containing a leather belt and a BB gun, a dog cage in a basement, a
black and silver handgun, three boxes of ammunition, a number of cell phones, a rifle,
and a rifle clip.
{¶ 7} The State then called A.B. as a witness. A.B. testified that she had been, for
a period of approximately six years, addicted to heroin but, as of the date of her testimony
on August 4, 2015, she had been clean for approximately one year. She explained that she
had been acquainted with Minor for around five years and that she and her boyfriend,
B.P., went weekly to Minor's house on North Harris Avenue to buy heroin.
{¶ 8} A.B. related that on June 24, 2014, she and B.P. went to Minor's house on
North Harris Avenue. A.B.'s testimony varied on the exact sequence of events, whether
she and B.P. had been there earlier in the day, whether B.P. was intending to apply a
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No. 15AP-919
tattoo at the residence or trade tattooing equipment for heroin, and whether someone
called to her from within the house or whether someone called to B.P. However, she
testified that once she was inside the house, someone, she was not sure who, displayed a
weapon and told her to go in the kitchen, empty her pockets, and strip. Apparently,
heroin had gone missing and the people in the house on North Harris Avenue thought she
and B.P. had taken it.
{¶ 9} Once she and B.P. had complied in disrobing, someone, she was not sure
who, performed cavity searches on her and B.P. in the kitchen. Some time later, she and
B.P. were taken into the basement of the house where Minor and other unidentified
persons also performed anal and vaginal cavity searches on her using gloves from A.B.'s
purse which she had for tattooing purposes. In the basement, a number of unidentified
persons, not believing A.B. and B.P.'s protestations that they had not stolen heroin, began
to beat B.P.
{¶ 10} The beating began with a bottle but they also used a BB gun, a leather strap,
a knife, as well as feet and hands. A.B. was able to identify the BB gun, bucket, and strap
offered into evidence among the State's trial exhibits. Specifically, A.B. testified that some
people (whom she simply referred to as "they") broke the bottle on B.P.'s head, stomped
him with their feet, hit him with their hands, wetted the leather strap and whipped his
back with it, smashed his toes with the butt of the BB gun, and shot him in the bottom and
the genitals with the BB gun. (Tr. Vol. 2 at 128-30.) They also forced B.P. into a dog cage
and sodomized him anally with a broom handle without a broom attached to it. At times
when B.P. passed out, they dumped cold water on him to revive him for further beatings.
Also, while B.P. was in the cage, they were heating up a knife tip and branding him with it.
In addition, A.B. testified that, someone (she did not know who) kicked her in the head a
couple of times when the beating first started.
{¶ 11} At no time did A.B. identify who did what during the beatings except to say
that Minor and one of his co-defendants, Davonte Clark, stomped B.P. and hit him with
their hands. A.B. estimated that she was kept in the basement for at least six hours before
she was allowed to leave. She did not attempt to leave or check if the door was locked.
However, according to her testimony, Minor and his three co-defendants came
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No. 15AP-919
downstairs at points to make sure she and B.P. were down there. She also said someone
recorded a video of her, naked on top of B.P.'s cage, urinating on him.
{¶ 12} Toward the end of the night, someone gave A.B. some heroin and B.P. some
meth to help with their pain and withdrawal sickness. Eventually, the captors let A.B. and
B.P. go free, reasoning that it had begun to rain outside and any heroin that A.B. and B.P.
might have stolen and stashed outside would be ruined. At least Minor, and maybe other
persons, warned A.B. and B.P. not to call the police. When she retrieved her belongings
and got dressed, A.B. was missing three cell phones and $30. However, neither she nor
B.P. called the police. Instead they walked to a friend's house who, when it was apparent
that B.P.'s health was poor, took them to Mount Carmel West Hospital.
{¶ 13} A.B. was able to identify all four defendants at trial. However, she admitted
on cross-examination that she was in heroin withdrawal during the ordeal and that heroin
has a mind-altering effect that can make things seem real that are not. She explained that
neither of the co-defendants, Charles Reed and Davonte Clark, had raped or assaulted
her. She reiterated, however, that Minor had cavity-searched her and that he beat B.P.
She had no memory of speaking to nurses at the hospital and relating that she had been
penetrated.
{¶ 14} The next grouping of witnesses was composed of staff from Mount Carmel
West Hospital; three sexual assault nurses who collected forensic observations and took
photographs of the injuries sustained by A.B. and B.P. and a resident physician who
treated B.P. According to the physician's testimony, B.P. presented with numerous
lacerations, a broken rib, a collapsed left lung, a ruptured spleen rating 4 of 5 on the
severity scale, a broken toe, a fractured tailbone, a bruised scrotum, and abrasions around
his anus. He was admitted to the intensive care unit and remained there for 5 days. The
forensic nurse manager for Mount Carmel Health System also testified, describing the
photographed injuries to B.P. and authenticating the exhibits showing injuries.
{¶ 15} Another nurse testified that she performed an exam of A.B. and testified to
bruising and other minor injuries to A.B. visible in photographs. This nurse testified that
A.B. told her that fingers had been used to penetrate her vaginal area and "butt." (Tr. Vol.
2 at 458.) The nurses also testified that they swabbed areas where foreign DNA might
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No. 15AP-919
have been present based on the history recounted by A.B. and B.P. and preserved the rape
kit for the police.
{¶ 16} The State next called a DNA expert forensic scientist with the Ohio Bureau
of Criminal Investigation. According to the expert, DNA tests were run on the rape kits
collected from A.B. and B.P., as well as numerous articles found at the scene like the
broom handle, BB gun, and pistol. No foreign DNA sufficient for comparison with
conventional DNA testing was found in the rape kits or on any of the articles except the
BB gun. And Minor, Clark, and Reed could be excluded as contributors to the DNA
mixture obtained from the BB gun. The expert testified that Y-STR DNA testing yields a
less exact result. The testing produced two DNA profiles on one end of one broom handle,
a major and a minor profile. The major profile was consistent with B.P. but Minor, Clark,
and Reed were all excluded as contributors to the minor profile.
{¶ 17} Thereafter, a canine handling officer for the Columbus Division of Police
testified that on June 25, 2014, he was called to 125 North Harris Avenue at 6:24 a.m.
with the SWAT team to help effect an arrest because, despite the police having announced
their presence, people were not coming out of the house. He testified that after about 15
or 20 minutes, co-defendant Reed jumped from the second floor window and began
limping toward him and a SWAT officer. Because Reed did not immediately get on the
ground when ordered to do so, the SWAT officer hit him with the barrel of his rifle and
they arrested him. Other than Reed, everyone else who was in the house came out in an
orderly and respectful fashion with their hands raised.
{¶ 18} The final witness called by the State was an expert in cell phone analysis
with the Columbus Division of Police. He testified that a detective assigned to the case
presented him with an Apple iPhone 4 and asked him to obtain the phone's contents. He
was able to use software to bypass the phone's security code and download the contents.
Both the Apple ID and the Kik2 ID information on the phone were associated with the
name "Charles Reed." (Tr. Vol. 3 at 575-77.) The expert explained, that from his review of
the phone's contents he was able to determine that on June 24, 2014, at 5:18 p.m., a text
was sent from the iPhone to a recipient named "Destiny" which said, "I am on Harris."
(Tr. Vol. 3 at 578.) Then at 1:05 a.m. on June 25, the iPhone received a message that said,
2 Kik is a messaging application.
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No. 15AP-919
"[d]id that situation resolve itself at Harris?" (Tr. Vol. 3 at 579.) In addition, the iPhone
contained a video showing A.B. naked in front of a dog cage appearing to urinate on B.P.
The expert explained that while he could not say that this particular phone took the video,
he could discern that the video was taken by the same model of phone running the same
edition of the operating system, that the video was taken on June 24, 2014, at 4:46 p.m.,
and that it was taken at the house on North Harris Avenue.
{¶ 19} Following the last of its witnesses and the admission of exhibits, the trial
court heard motions by the defendants for acquittal under Crim.R. 29. The State
admitted that the evidence was insufficient on three counts of the indictment as to all
defendants and the court dismissed those counts. However, midway though arguments
on motions to dismiss as to the remaining counts, the prosecutor received a call notifying
her that B.P. had been arrested. She, therefore, requested that the trial court allow her to
reopen the State's case in order to call him as a witness. All defendants objected. The
trial court heard and ruled on the remaining Crim.R. 29 motions before determining
whether to permit the State to reopen its case to obtain B.P.'s testimony. As to Minor,
Clark, and Reed, the trial court denied the Crim.R. 29 motions as to the remainder of the
counts not conceded by the State.
{¶ 20} After an interval in which counsel researched and presented arguments on
the propriety of reopening a case in order to allow additional witnesses after the State has
rested, the trial court concluded it had discretion in the matter and declined to allow the
State to reopen its case after having rested. The trial court reasoned that while B.P.'s
testimony would likely be both relevant and admissible, the defendants would be
considerably prejudiced in that they had made strategic decisions in how they had chosen
to try their cases based on the premise that B.P. would not be called as a witness at trial.
{¶ 21} Following that ruling, counsel for Minor asked for a continuance in order to
interview B.P. Counsel for Minor explained that he had planned to call witnesses on
behalf of Minor but was concerned that doing so would give the State an opportunity to
call B.P. in rebuttal which, depending on what B.P. might say, could endanger Minor's
chances of acquittal. However, although the trial court consented to give Minor's counsel
15 minutes to confer with colleagues and weigh the matter, it did not allow him any longer
continuance in order to meet with B.P. and determine the likely gist of B.P.'s testimony
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No. 15AP-919
were he to be called upon rebuttal. Ultimately, having weighed the strategic concerns,
counsel for Minor concluded not to call any witnesses so as to avoid the possibility of
allowing the State to call B.P. in rebuttal.
{¶ 22} After closing arguments, jury instructions, and deliberations, on August 11,
2015, the jury returned verdicts. The jury found Minor, Reed, and Clark each guilty of five
counts of felonious assault and two counts of kidnapping. It also found that Minor and
Clark were each guilty of two counts of rape. It found all four defendants not guilty on all
remaining counts.
{¶ 23} On September 29, 2015, the trial court held a sentencing hearing. B.P.
testified at the sentencing hearing on Minor's behalf stating that he and Minor are friends,
that Minor did not play a role in torturing B.P., and that when Minor returned to the
house it was he who helped B.P. get his clothes and get out of the basement. B.P. also
filed an affidavit with the court prior to sentencing to similar effect. The trial court,
however, disbelieved B.P., concluded (consistent with A.B.'s testimony at trial) that Minor
played a significant role in the offense, and after a lengthy explanation of the factors and
purposes of sentencing, sentenced Minor to a total of 38 years in prison. Specifically, the
trial court determined that the felonious assault counts should merge and sentenced
Minor to 8 years on the merged count, 8 years on each of the 2 rape counts, and 7 years on
each of the 2 kidnapping counts, each to be served consecutively to the others.
{¶ 24} Minor now appeals.
II. ASSIGNMENTS OF ERROR
{¶ 25} Minor raises four assignments of error for review:
[I.] THE VERDICTS OF GUILTY TO FELONIOUS ASSAULT,
RAPE, AND KIDNAPPING ARE AGAINST THE
SUFFICIENCY AND MANIFEST WEIGHT OF THE
EVIDENCE.
[II.] TRIAL COURT ERRED IN DENYING APPELLANT'S
REQUEST FOR A CONTINUANCE TO ALLOW
APPELLANT'S COUNSEL TO QUESTION A KEY WITNESS;
THUS DENYING APPELLANT OF HIS RIGHT TO A FAIR
TRIAL.
[III.] APPELLANT WAS DENIED EFFECTIVE ASSISTANCE
OF COUNSEL AND A FAIR TRIAL BECAUSE TRIAL
COUNSEL DID NOT PRODUCE ANY WITNESSES ON
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No. 15AP-919
APPELLANT'S BEHALF AND DID NOT EFFECTIVELY
LOCATE A KEY WITNESS.
[IV.] THE TRIAL COURT ERRED BY IMPROPERLY
SENTENCING APPELLANT TO CONSECUTIVE TERMS OF
INCARCERATION SINCE THE SENTENCE DID NOT
FOLLOW THE OHIO SENTENCING STATUTES.
III. DISCUSSION
A. First Assignment of Error—Whether the Convictions were Sufficiently
Supported by the Evidence and Whether they were Contrary to the
Manifest Weight of the Evidence
{¶ 26} In his first assignment of error, Minor alleges that his convictions were not
supported by sufficient evidence and that they were against the manifest weight of the
evidence. Minor's brief conflates the concepts, with repeated arguments that the evidence
was insufficient because A.B. was "unreliable." (Minor's Brief at 13, 15, 18.) The Supreme
Court of Ohio has "carefully distinguished the terms 'sufficiency' and 'weight' * * *,
declaring that 'manifest weight' and 'legal sufficiency' are 'both quantitatively and
qualitatively different.' " Eastley v. Volkman, 132 Ohio St. 3d 328, 2012-Ohio-2179, ¶ 10,
quoting State v. Thompkins, 78 Ohio St. 3d 380 (1997), paragraph two of the syllabus.
{¶ 27} Sufficiency is:
"[A] term of art meaning that legal standard which is applied
to determine whether the case may go to the jury or whether
the evidence is legally sufficient to support the jury verdict as
a matter of law." * * * In essence, sufficiency is a test of
adequacy. Whether the evidence is legally sufficient to sustain
a verdict is a question of law.
Eastley at ¶ 11, quoting Thompkins at 386; Black's Law Dictionary 1433 (6th Ed.1990).
"In reviewing a record for sufficiency, '[t]he 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.
Monroe, 105 Ohio St. 3d 384, 2005-Ohio-2282, ¶ 47, quoting State v. Jenks, 61 Ohio St. 3d
259 (1991), paragraph two of the syllabus.
{¶ 28} By contrast:
Weight of the evidence concerns "the inclination of the
greater amount of credible evidence, offered in a trial, to
support one side of the issue rather than the other. It indicates
clearly to the jury that the party having the burden of proof
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No. 15AP-919
will be entitled to their verdict * * *. Weight is not a question
of mathematics, but depends on its effect in inducing belief."
(Emphasis sic.) Eastley at ¶ 12, quoting Thompkins at 387; Black's at 1594. For a
manifest weight analysis "the appellate court sits as a 'thirteenth juror' and disagrees with
the jury's resolution of the conflicting testimony." Thompkins at 388, quoting Tibbs v.
Fla., 457 U.S. 31, 42 (1982). " 'The court, reviewing 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.' " Id. at 387, quoting State v. Martin, 20 Ohio App. 3d 172, 175 (1st Dist.1983).
{¶ 29} There are also noteworthy differences in how the two concepts are treated
procedurally. While a majority of a reviewing court may find that evidence was
insufficient, "[n]o judgment resulting from a trial by jury shall be reversed on the weight
of the evidence except by the concurrence of all three judges hearing the cause." Ohio
Constitution, Article IV, Section 3(B)(3); Thompkins at paragraphs three and four of the
syllabus. In addition, the consequences of appellate findings on manifest weight as
opposed to sufficiency are different. "[T]he Double Jeopardy Clause does not preclude
retrial of a defendant if the reversal was grounded upon a finding that the conviction was
against the weight of the evidence. However, retrial is barred if the reversal was based
upon a finding that the evidence was legally insufficient to support the conviction." Id. at
387, citing Tibbs at 47.
1. Felonious Assault
{¶ 30} In Ohio, the offense of felonious assault includes the following prohibition:
No person shall knowingly do * * * the following:
(1) Cause serious physical harm to another * * * .
R.C. 2903.11(A)(1). "Serious physical harm" is separately defined in relevant part as:
(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;
***
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No. 15AP-919
(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)(b), (c) and (e).
{¶ 31} A.B. testified that Minor and Clark stomped B.P. with their feet and hit him
with their hands. The physician from Mount Carmel West Hospital who treated B.P.
testified that B.P. presented with, among other injuries, a broken rib, a collapsed left lung,
and a ruptured spleen rating 4 of 5 on the severity scale. The physician testified that due
to his condition, B.P. was admitted to the intensive care unit where he remained
throughout his 5-day hospitalization. This testimony, when considered in the " 'light most
favorable to the prosecution' " was sufficient to support Minor's conviction for felonious
assault. Monroe at ¶ 47, quoting Jenks at paragraph two of the syllabus.
{¶ 32} When considering manifest weight of the evidence, there was no suggestion
by the evidence that B.P.'s injuries were feigned or that the physician who testified was
not credible or incorrect in his testimony. When considering whether the evidence
introduced at trial was weighty enough to support the conviction, the issue resolves to a
question of whether A.B. was credible in reporting how B.P. sustained the injuries and at
whose hands.
{¶ 33} A.B. was, at the time of the incident, a heroin addict who was experiencing
symptoms of withdrawal. Her testimony was inconsistent throughout trial about who did
what and how many assailants there were. Rather than make allegations about any
specific defendant, she repeatedly used vague pronouns such as "they" or "them." (Tr. Vol.
2 at 128-30.) She also, at one point, appeared to testify that many of the people who
harmed her were not defendants at trial. A.B. admitted to being a thief and "boosting"
(stealing barter items to obtain heroin) repeatedly for ten years. (Tr. Vol. 2 at 208.) She
admitted to having lied to the police when she spoke to them at the hospital. A.B. also
admitted she did not remember what she said at the hospital or whether she had initially
claimed to have been raped by four or five men. No blood was collected in the basement
of the residence on North Harris Avenue, as might have been expected had B.P. been
beaten as badly as A.B. testified he was at that location. Finally, Minor was excluded as a
contributor to all the useable DNA samples collected from bodies of B.P. and A.B. as well
as the various implements allegedly used on B.P.
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No. 15AP-919
{¶ 34} However, A.B.'s testimony that B.P. was stomped was corroborated by the
fact that B.P. had a collapsed lung, broken rib, and ruptured spleen when he arrived at the
hospital. A.B.'s and B.P.'s presence at the house at 125 North Harris Avenue earlier that
evening was corroborated by the fact that a cell phone video depicting them was shot at
that location on June 24, 2014 at 4:46 p.m. Moreover, the general character of the
interaction on North Harris Avenue is corroborated by the grainy video. That A.B. knew
Minor, having purchased heroin weekly for five years from him at his house at 125 North
Harris Avenue, helps to confirm the veracity of A.B.'s identification of Minor as a
perpetrator.
{¶ 35} After review of the record, we cannot say, based on the evidence in this case,
that "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. We
conclude that the conviction for felonious assault is not against the manifest weight of the
evidence.
2. Rape
{¶ 36} In Ohio, the offense of rape is defined by statute, in relevant part, as follows:
No person shall engage in sexual conduct with another when
the offender purposely compels the other person to submit by
force or threat of force.
R.C. 2907.02(A)(2). "Sexual conduct" is defined to include "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" when accomplished "without privilege to do so." R.C.
2907.01(A). In addition, a person is complicit in the sense potentially relevant here when,
"acting with the kind of culpability required for the commission of an offense" the person
"[a]id[s] or abet[s] another in committing the offense." R.C. 2923.03(A)(2). A person who
is complicit in an offense "shall be prosecuted and punished as if he were a principal
offender." R.C. 2923.03(F).
{¶ 37} A.B. testified that someone in the house (she was not sure who) was holding
a gun on her and B.P. Someone (it is not clear from her testimony if it was the same
unknown person or a different unknown person) told her to strip. A.B. testified that
someone, she was not sure who, administered a vaginal cavity search in the kitchen and
that Minor performed anal and vaginal cavity searches on her once she had stripped and
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No. 15AP-919
gone into the basement of 125 North Harris Avenue.3 She also testified, however, that the
gun had been put away and was not out at the point when the cavity searches occurred.
{¶ 38} "Body cavity search" is defined in two places in the Ohio Revised Code. In
both instances, it is defined as "an inspection of the anal or vaginal cavity of a person that
is conducted visually, manually, by means of any instrument, apparatus, or object, or in
any other manner." R.C. 2933.32(A)(1); R.C. 5120.421(A)(1). Black's Law Dictionary
defines two types of body cavity searches. A "manual body-cavity search" is "[a] strip
search in which the police engage in some touching or probing of a person's orifices. –
Also termed digital body-cavity search." (Emphasis sic.) Black's Law Dictionary 1552
(10th Ed.2014). A "visual body-cavity search" is "[a] strip search in which, without
touching, a law-enforcement officer closely inspects a person's orifices. – Also termed
visual body-cavity inspection." (Emphasis sic.) Black's at 1553. In other words, although
a body cavity search clearly can involve penetration, it does not, by definition require or
necessitate penetration or insertion.
{¶ 39} A.B.'s testimony at least suggested that penetration occurred because she
referred to being cavity searched with a gloved hand. Taken in combination with the fact
that the hospital records introduced in the case show representations that vaginal and
"butt" penetration occurred, we find the evidence before the jury sufficient, when taking
the view most favorable to the prosecution, for a jury to find there was evidence that some
penetration occurred. The force element is satisfied by evidence that A.B. was compelled
at gunpoint to strip in preparation for the search. Although the gun was later put away,
taking the view of the facts most favorable to the prosecution, A.B.'s testimony supported
an inference that Minor had presented a continuing implied threat of violence when he
required A.B. to submit to cavity searches in the basement, shortly after she was forced at
gunpoint to strip. Minor's rape convictions were supported by sufficient evidence on each
element.4
3 She also testified that some unknown persons performed cavity searches on B.P. as well. However, Minor
was convicted only of rape counts associated with the penetration of A.B.'s anal and vaginal cavities; thus,
we address that issue no further here.
4 Although A.B. testified that someone used a broom handle to penetrate B.P. anally, she never said who did
that. Moreover, Minor was convicted only of rape counts associated with the penetration of A.B.'s anal and
vaginal cavities.
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No. 15AP-919
{¶ 40} On the question of weight, A.B.'s testimony suffers from the same credibility
problems as identified regarding the counts of felonious assault, that she admitted to
thieving regularly, lying to the police, and being a heroin addict experiencing withdrawal
at the time of the events. As was true of the felonious assault counts, she gave muddled,
sometimes inconsistent, and almost universally vague testimony. Further, no foreign
DNA was recovered from her person that could have been matched to Minor (although
this could be explained by the allegation that Minor wore gloves). However, as was also
true in the felonious assault discussion, A.B.'s identification of Minor is bolstered by the
fact that she saw him weekly to buy drugs. A.B.'s general testimony that she was forced to
endure a cavity search in the basement of 125 North Harris Avenue is corroborated by the
video of her, naked, obviously in some distress, in the basement of 125 North Harris
Avenue. While there may be issues presented in A.B.'s testimony that created doubt
about Minor's guilt of the rape charges involving A.B., we cannot say that "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.
3. Kidnapping
{¶ 41} The Ohio Revised Code defines the offense of kidnapping, in relevant part,
as follows:
(A) No person, by force [or] threat, * * * shall * * * restrain the
liberty of the other person, for any of the following purposes:
***
(2) To facilitate the commission of any felony or flight
thereafter;
(3) To terrorize, or to inflict serious physical harm on the
victim or another;
***
(B) No person, by force [or] threat, * * * shall knowingly do
any of the following, under circumstances that create a
substantial risk of serious physical harm to the victim * * * :
***
(2) Restrain another of the other person's liberty.
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No. 15AP-919
R.C. 2905.01(A)(2),(3) and (B)(2). A person who is complicit in an offense "shall be
prosecuted and punished as if he were a principal offender," and a person may be found to
be complicit when, "acting with the kind of culpability required for the commission of an
offense," the person "[a]id[s] or abet[s] another in committing the offense." R.C.
2923.03(A)(2) and (F).
{¶ 42} A.B. testified that after she and B.P. were forced at gunpoint to strip naked
and sent into the basement, they were not permitted to leave for six hours. Although A.B.
testified that she did not check to see if the basement door was locked, a number of
persons, including Minor, came down to the basement from time to time to make sure
they were still there. In addition, A.B. testified that Minor caused serious physical harm
to B.P. while B.P. was being held in the basement. This evidence was sufficient to sustain
the convictions for kidnapping as defined above.
{¶ 43} Despite the general vagueness of A.B.'s testimony and the other issues
affecting her credibility, the video shot of A.B. and B.P. in the basement of 125 North
Harris Avenue is strong corroborating evidence that A.B. and B.P. were being forcibly
kept for some period of time in the basement of that premises. Under the circumstances
and after review of the record, we cannot say that "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. We thus determine that the convictions for kidnapping are
not against the manifest weight of the evidence.
{¶ 44} Minor's first assignment of error is overruled.
B. Second Assignment of Error—Whether it was Error for the Trial Court
to have Denied Trial Counsel a Continuance in which to Interview a
Witness
{¶ 45} Minor now argues on appeal that it was prejudicial error for the trial court
to have denied his motion for continuance in order for his counsel the opportunity to
interview B.P.
{¶ 46} "The determination whether to grant a continuance is entrusted to the
broad discretion of the trial court. Relevant factors include the length of the delay
requested, prior continuances, inconvenience, and the reasons for the delay." (Citations
deleted.) State v. Conway, 108 Ohio St. 3d 214, 2006-Ohio-791, ¶ 147, citing State v.
Landrum, 53 Ohio St. 3d 107, 115 (1990); State v. Unger, 67 Ohio St. 2d 65 (1981),
15
No. 15AP-919
syllabus. In this case, the delay contemplated was short, but there had been six prior
continuances at the joint request of the parties.5 Moreover, the continuance concerned in
this assignment of error was sought during an ongoing jury trial involving four
defendants. Between the trial court, court staff, the jurors, counsel for all parties, and
witnesses, there was considerable potential for inconvenience in even a short delay. In
addition, while counsel is certainly not prohibited from attempting to interview witnesses
before he or she testifies, there is no specifically enumerated right to interview witnesses
before they take the stand. Atkins v. State, 115 Ohio St. 542, 553 (1927). Further, nothing
prevents a witness from simply refusing to speak to counsel. State v. Zeh, 31 Ohio St. 3d 99
(1987), paragraph one of the syllabus. While it would have been desirable for Minor's
counsel to have had the opportunity to attempt to discuss B.P.'s testimony with him
before finally deciding whether B.P. would testify, we cannot conclude that the trial court
abused its discretion in refusing to interrupt a jury trial in order to allow counsel an
opportunity not defined in the law as a right.
{¶ 47} Minor's second assignment of error is overruled.
C. Third Assignment of Error—Whether Minor was Denied Effective
Assistance of Counsel
{¶ 48} Ineffective assistance of counsel claims are assessed using the two-pronged
approach set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). "First, the
defendant must show that counsel's performance was deficient. * * * Second, the
defendant must show that the deficient performance prejudiced the defense." Id. at 687.
The failure to make either showing defeats a claim of ineffective assistance of counsel.
State v. Bradley, 42 Ohio St. 3d 136, 143 (1989), quoting Strickland at 697 ("[T]here is no
reason for a court deciding an ineffective assistance claim to approach the inquiry in the
same order or even to address both components of the inquiry if the defendant makes an
insufficient showing on one.").
{¶ 49} Minor's appellate counsel argue that trial counsel was ineffective because:
There were multiple people inside of 125 Harris Avenue on
the night of June 24, 2015. [A.B.] testified that multiple
unidentified people came downstairs to make sure that they
5 We recognize the logistical difficulty of harmonizing the trial court's schedule with the various schedules of
trial counsel for four co-defendants to be tried simultaneously, but the trial court was within its discretion to
control the matter of continuances during the jury trial once it had begun and after the State had rested.
16
No. 15AP-919
were still down there. She was unsure whether the number of
people in the residence was more or less than ten, but there
were less than twenty. None of these other individuals who
were present in the house or who came to check on [A.B.] and
[B.P.] in the basement were brought to court to testify.
Further, [A.B.] and [B.P.] walked two blocks to their friend's
house where they were taken to Mount Carmel West. Neither
any witnesses who saw [A.B.] and [B.P.] walking down the
street nor the friend who took them to the hospital were called
to testify at trial. There were no witnesses presented by trial
counsel to testify on Appellant's behalf. This ultimately
changed the result of the trial and for this, Appellant was
denied a fair trial.
(Records citations deleted.) (Minor Brief at 22-23.) Lacking from this argument is any
allegation of what Minor's counsel did or did not do regarding these issues that would
have changed the outcome of the trial. Nor is there an explanation of why inclusion of any
of these witnesses (assuming they even existed or could have been identified, which is not
reflected in the record) would probably have altered the result—a necessary finding to
satisfy Strickland. Because this argument fails, the entire allegation of ineffective
assistance of counsel cannot be sustained with respect to the presentation of witnesses.
{¶ 50} Minor's appellate counsel also argues that Minor's trial counsel's
performance was ineffective because he failed to locate B.P.:
Appellant's trial attorney could not locate [B.P.] for trial. Trial
counsel had an "investigator who is very experienced, who for
a long time was trying to get ahold of [B.P.]" but could not do
so. Shortly after the State rested its case, while the defense
attorneys were in the middle of making their Rule 29 motions,
the Court was notified that [B.P.] had been arrested. The
police found [B.P.]; however, trial counsel's investigator could
not. If [B.P.] was able to be located and interviewed, there is a
reasonable probability that the proceeding would have had a
different result.
(Record citations deleted.) (Id. at 23.) As appellate counsel concedes, trial counsel hired
an investigator to attempt to track down B.P., and even the police did not find B.P. in time
to procure his presence for trial. How trial counsel was arguably deficient in attempting
to find B.P. is not clear from appellate counsel's conclusory statements. As deficient
performance is one of the two necessary prongs of Strickland, this conclusory argument
fails also.
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No. 15AP-919
{¶ 51} Minor's third assignment of error is overruled.
D. Fourth Assignment of Error—Whether the Trial Court Properly
Complied with R.C. 2929.14(C)(4) in Sentencing Minor to Consecutive
Sentences
{¶ 52} Ohio Revised Code 2929.14(C)(4) specifies a number of findings a trial
court must make when it sentences an offender to serve consecutive terms of
imprisonment:
If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the
offender to serve the prison terms consecutively if the court
finds that the consecutive service is necessary to protect the
public from future crime or to punish the offender and that
consecutive sentences are not disproportionate to the
seriousness of the offender's conduct and to the danger the
offender poses to the public, and if the court also finds any of
the following:
(a) The offender committed one or more of the multiple
offenses while the offender was awaiting trial or sentencing,
was under a sanction imposed pursuant to section 2929.16,
2929.17, or 2929.18 of the Revised Code, or was under post-
release control for a prior offense.
(b) At least two of the multiple offenses were committed as
part of one or more courses of conduct, and the harm caused
by two or more of the multiple offenses so committed was so
great or unusual that no single prison term for any of the
offenses committed as part of any of the courses of conduct
adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates
that consecutive sentences are necessary to protect the public
from future crime by the offender.
The Supreme Court has more than once held that:
[I]f a trial judge exercises his or her discretion to impose
consecutive sentences, he or she must make the consecutive-
sentence findings set out in R.C. 2929.14(C)(4), and those
findings must be made at the sentencing hearing and
incorporated into the sentencing entry.
State v. Sergent, __ Ohio St.3d __, 2016-Ohio-2696, ¶ 17, citing State v. Bonnell, 140
Ohio St. 3d 209, 2014-Ohio-3177, ¶ 23.
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No. 15AP-919
{¶ 53} In this case, the trial court orally explained in the sentencing hearing that it
was considering and making the findings required by R.C. 2929.14(C)(4) as follows:
For the record, pursuant to Revised Code Section 2929.14,
subsection C-4, the court is going to impose consecutive
sentences in order to ensure the safety of the public from
future crime, to punish the offender, and the consecutive
sentences are necessary and are not disproportionate to the
seriousness of the offender's conduct and to the danger the
offender poses to the public.
The court will also make the finding specific to section C-4
(B), that at least two of the multiple offenses were committed
as a part of one or more courses of conduct, and the harm
caused by two or more people of the multiple offenses so
committed was so great or unusual that no single prison term
for any of the offenses committed as a part of any of the
courses of conduct adequately reflects the seriousness of the
offender's conduct. Pursuant to Revised Code Section 2929.14
subsection C-4 as well as subsection C-4 (B) the court is going
to impose consecutive sentences.
(Tr. Vol. 7 at 924-25.) Then, in its judgment entry, the trial court incorporated and added
to those findings as follows:
The Court made findings on the record, pursuant to R.C.
2929.14(C)(4), to support consecutive sentences. Considering
the facts of this case, the purposes and principals of
sentencing, and the requirements set forth in R.C.
2929.14(C)(4), the Court finds that a consecutive sentence is
both necessary and appropriate. The Court further finds that
(a) a consecutive sentence is necessary to punish Defendant,
given the seriousness of the offenses committed; (b) a
consecutive sentence is not disproportionate to the
seriousness of Defendant's conduct; (c) at least two of the
multiple offenses were committed as part of one or more
courses of conduct, and the harm caused by two or more of
the multiple offenses committed was so great or unusual that
no single prison term for any of the offenses committed as
part of any of the courses of conduct adequately reflects the
seriousness of the offender's conduct; and (d) The offender's
history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future
crime by the offender.
(Oct. 1, 2015 Jgmt. Entry at 2.)
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No. 15AP-919
{¶ 54} Minor's brief does not address or attempt to explain why the above-quoted
findings by the trial court (which are facially sufficient and that almost verbatim recite the
findings required by R.C. 2929.14(C)(4)) are error. The assertion in the brief that the trial
court failed to make necessary findings without more is insufficient to sustain the fourth
assignment of error.
{¶ 55} However, we do note that the sentencing entry refers to Minor having pled
guilty to the offenses of which the jury found him guilty, and we instruct the trial court to
enter a nunc pro tunc order correcting the sentencing entry.
{¶ 56} Minor's fourth assignment of error is overruled.
IV. CONCLUSION
{¶ 57} Because Minor's convictions are supported by sufficient evidence and not
contrary to the manifest weight of the evidence, and because we find no merit in any of
Minor's other assignments of error, we overrule all four assignments of error and affirm
the judgment of the Franklin County Court of Common Pleas. Having noticed an error in
the sentencing entry having no substantive effect on Minor's sentence, we remand this
case and instruct the trial court to enter a nunc pro tunc entry correcting the sentencing
entry in accord with our instructions.
Judgment affirmed;
cause remanded with instructions.
DORRIAN, P.J., and SADLER, J., concur.