State v. Taylor

[Cite as State v. Taylor, 2014-Ohio-3134.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100315
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MICHAEL P. TAYLOR
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-12-569276
BEFORE: Blackmon, J., Jones, P.J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: July 17, 2014
-i-
ATTORNEY FOR APPELLANT
Joseph V. Pagano
P.O. Box 16869
Rocky River, Ohio 44116
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Gregory Mussman
Karrie D. Howard
Assistant County Prosecutors
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:
{¶1} Appellant Michael P. Taylor appeals his convictions, sentence, and
classification as a Tier III sexual offender. Taylor assigns the following errors for our
review:
I. The trial court erred when it denied appellant’s motion for acquittal under
Crim.R. 29 because the state failed to present sufficient evidence to
establish beyond a reasonable doubt the elements necessary to support the
convictions.
II. Appellant’s convictions are against the manifest weight of the evidence.
III. Appellant was deprived of due process and a fair trial in violation of his
state and federal constitutional rights when the trial court allowed a
representative from victim impact to stand by a witness/victim during her
trial testimony over appellant’s objection.
IV. The trial court erred by denying appellant’s motion for mistrial and for
providing an inadequate curative instruction during trial.
V. Appellant’s sentence is contrary to law and constitutes cruel and unusual
punishment in violation of the Eighth Amendment to the United States
Constitution.
VI. The trial court erred by instructing the jury that it could find appellant to
be a sexual offender over appellant’s objection.
VII. The trial court erred by ordering appellant to pay costs.
{¶2} Having reviewed the record and pertinent law, we affirm in part, reverse in
part, and remand for resentencing. The apposite facts follow.
{¶3} On March 12, 2013, the Cuyahoga County Grand Jury indicted Taylor on
four counts of rape with sexually violent predator specifications attached, three counts
of kidnapping with sexual motivation and sexual violent predator specifications attached,
one count of gross sexual imposition, and one count of intimidation of a crime witness.
Taylor pleaded not guilty to the charges at his arraignment, and after several pretrials, a
jury trial commenced.
Jury Trial
{¶4} At trial, the state presented the testimony of nine witnesses including E.W.,1
who was 17 at the time of trial. E.W. testified that Taylor is her first cousin, the son of
her Uncle Mike, and was a frequent visitor to her home.
{¶5} E.W. testified that around October 10-11, 2012, she stayed home from
school because she was feeling sick. E.W. stated that between 4:00-5:00 p.m., two of her
sisters, who were at home at the time, left to pick up one of the sister’s children from
daycare. As they were leaving, one of the sisters asked E.W. to come and lock the front
door. E.W. started to lock the door when Taylor entered and said something about
needing to use a phone charger.
{¶6} E.W. stated that moments after entering the house, Taylor began “touching,
feeling, and grabbing her.” As E.W. stated that despite her protest, Taylor continued to
touch her neck and grab her buttocks, as they fell against a chair and eventually landed on
the floor. As E.W. continued to protest, Taylor proceeded to pull down her pants,
inserted his finger and then his penis into her vagina. E.W. said that Taylor was wearing
1
The juveniles are referred to herein by their initials in accordance with this court’s
established policy regarding non-disclosure of identities in all juvenile cases. In this case, because all
the juveniles have the same initials, we will refer to the witnesses as E.W. and E.W.1.
a condom, but she did not see when he put it on his penis. E.W. said that after a while,
Taylor got up, stood over her and just stared.
{¶7} E.W. stated that Taylor threatened to “do something” to her and her mother
if she told anyone, and then he left. E.W. immediately went to the bathroom, washed
between her legs with soap and water and then changed her clothes.
{¶8} E.W.’s sisters returned shortly after Taylor left. An hour later, she told
the younger of the two sisters that Taylor had raped her while they had gone to collect the
children from the daycare. E.W. stated that they telephoned their oldest sister, who did
not live with them, and she contacted the police.
{¶9} The police arrived shortly thereafter and questioned E.W. about the
incident. Later, E.W. was taken by ambulance to the hospital, where she was examined
by a Sexual Assault Nurse Examiner (“SANE”) and had a rape kit completed.
{¶10} E.W. also testified that approximately two weeks prior to the above incident,
she was at the home of her eldest sister when Taylor offered to drive her home. E.W.
stated that when they left, Taylor drove in a completely different direction from the route
to her house and eventually traveled to the city of Shaker Heights, Ohio. Taylor pulled
into a driveway, asked if E.W. wanted to smoke marijuana, began touching her private
area, and then pulled out his penis. Amidst her protest, Taylor kept touching her private
area and eventually inserted his finger into her vagina. Taylor eventually drove her home
after she kept pushing his hands away.
{¶11} E.W.’s sister, E.W.1, testified that she and all her siblings’ first names begin
with the letter “E.” E.W.1 stated that she has known Taylor all her life and that he came
to their house on a regular basis. On the day in question, Taylor entered the house as she
and an older sister were leaving to get the children from daycare.
{¶12} E.W.1 testified that when they returned from the daycare, Taylor opened the
door for them and walked towards his vehicle that was parked in the driveway. When
E.W.1 entered the house, E.W. was in the bathroom with the door locked. When she
emerged, E.W. looked sad, was not talking, and was not upbeat. E.W.1 stated that
moments later, E.W. began crying and indicated that Taylor had raped her in their
absence. E.W.1 immediately called their older sister, who contacted the police.
{¶13} E.W.1 testified that Taylor raped her on three separate occasions between
2007 and 2008. E.W.1 testified that the first time, Taylor came down to the basement
where she was doing laundry, began kissing the back of her neck, then despite
protestations, pulled down her shorts and raped her. E.W.1 stated that Taylor pulled out
his penis, before ejaculating, when he heard a family friend coming down the steps.
{¶14} E.W.1 testified that the other two times, Taylor raped her in his truck when
her mother had asked her to go to the store with him. E.W.1 stated that she always
protested, but to no avail. E.W.1 told her mother, but Taylor always denied it, so nothing
was done.
{¶15} Detective Elaine Evans, assigned to Cleveland Police Department’s Sex
Crime and Child Abuse Unit, testified that she was assigned to the case the day after the
incident. Detective Evans obtained statements from both E.W. and E.W.1, as well as
other family members. Detective Evans also spoke via telephone with Taylor and made
an appointment for him to come to her office, but he never appeared.
{¶16} Following the state’s case in chief, Taylor motioned the trial court for
acquittal, but it was denied, and Taylor proceeded to testify in his own defense, denying
all accusations. Taylor testified that on October 10, 2012, he had been drinking hard
liquor and smoking marijuana with his friend Kenyatta Hines. Taylor stated that he and
Hines drove to E.W.’s home to recharge his cell phone. Taylor said that he went in the
house, plugged in the phone, and went back outside to sit in the car. He stated that
approximately 15 minutes later, he went back to retrieve his phone, spoke briefly with
E.W., and then left.
{¶17} Hines testified that she had been drinking and smoking marijuana with
Taylor on the date in question. Hines stated that Taylor was only in the house with E.W.
for about two minutes when he went to place the phone on the charger. Hines testified
that when Taylor went to retrieve the phone, he came back out immediately.
{¶18} The jury found Taylor not guilty of counts one through four, but guilty of
counts five through nine. The jury also found Taylor guilty of the sexual motivation and
sexually violent predator specification.
{¶19} At sentencing, because some of the charges were allied offenses, the state
elected to proceed on counts five, seven, and nine. The trial court imposed an 11 year
sentence on count five, kidnapping with sexual motivation and sexually violent predator
specification, 10-years-to-life on count seven, kidnapping with sexual motivation and
sexually violent predator specification, and 36 months on count nine, intimidation of a
crime victim or witness. The trial court ordered that Taylor serve the sentences
consecutively.
Sufficiency of Evidence
{¶20} In the first assigned error, Taylor argues that his motion for acquittal should
have been granted because the state failed to present sufficient evidence of the elements
necessary to support the convictions.
{¶21} Crim.R. 29 mandates that the trial court issue a judgment of acquittal where
the prosecution’s evidence is insufficient to sustain a conviction for the offense. Crim.R.
29(A) and sufficiency of evidence review require the same analysis. Cleveland v. Pate,
8th Dist. Cuyahoga No. 99321, 2013-Ohio-5571, citing State v. Mitchell, 8th Dist.
Cuyahoga No. 95095, 2011-Ohio-1241.
{¶22} A challenge to the sufficiency of the evidence supporting a conviction
requires the court to determine whether the prosecution has met its burden of production
at trial. State v. Givan, 8th Dist. Cuyahoga No. 94609, 2011-Ohio-100, citing State v.
Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541. On review for
sufficiency, courts are to assess not whether the prosecution’s evidence is to be believed,
but whether, if believed, the evidence against a defendant would support a conviction.
Id.{¶23} 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. Vickers, 8th Dist.
Cuyahoga No. 97365, 2013-Ohio-1337, citing State v. Jenks, 61 Ohio St.3d 259, 574
N.E.2d 492 (1991), paragraph two of the syllabus.
{¶24} In the instant case, the jury found Taylor guilty of one count each of rape,
gross sexual imposition, intimidation of a victim or witness, and two counts of
kidnapping. Because some counts were allied offenses of similar import, the state
elected that Taylor be sentenced on the two kidnapping charges and intimidation of victim
or witness.
{¶25} The kidnapping offense of which Taylor was found guilty is defined in R.C.
2905.01(A)(4) as follows: “No person, by force, threat, or deception, * * * shall remove
another from the place where the other person is found or restrain the liberty of the other
person * * * [t]o engage in sexual activity, as defined in R.C. 2907.01 * * * with the
victim against the victim’s will[.]”
{¶26} R.C. 2907.01 defines sexual activity as sexual conduct or sexual contact.
These are further defined respectively as “vaginal intercourse between a male and female;
anal intercourse, fellatio, and cunnilingus * * *; and * * * 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 * * *” and “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.”
{¶27} At trial, E.W. testified that approximately two weeks prior to the incident
that eventually triggered the underlying case, Taylor, who had offered her a ride home,
drove instead to the city of Shaker Heights. E.W. testified that Taylor pulled into a
driveway, began touching E.W., against her will, in her private area, exposed his penis,
and inserted his finger into her vagina. E.W.’s testimony, if believed, satisfies the
elements of kidnapping as outlined above.
{¶28} Nonetheless, Taylor argues that the jury finding him not guilty of the rape in
that instance, but guilty of the kidnapping, is inconsistent. The verdicts in this case
might appear at first glance to be inconsistent because appellant was acquitted of rape, but
was found guilty of kidnapping with a sexual motivation.
{¶29} However, “in criminal cases, consistency between verdicts on several counts
of an indictment is unnecessary where the defendant is convicted on one or some counts,
and acquitted on others, and the conviction will generally be upheld, irrespective of its
rational incompatibility with the acquittal.” State v. Sailor, 8th Dist. Cuyahoga No. 83552,
2004-Ohio-5207, ¶ 88, citing State v. Woodson, 24 Ohio App.3d 143, 493 N.E.2d 1018(10th Dist.1985).
{¶30} The kidnapping statute “punishes certain removal or restraint done with a
certain purpose and the eventual success or failure of the goal is irrelevant.” Thus, a
finding of not guilty on the rape charge “is not in any sense a finding that there was no
intent or purpose to commit those crimes at the time of the abduction.” State v. Smith,
9th Dist. Summit Nos. 23464 and 23468, 2007-Ohio-5524, ¶ 41, quoting State v.
Matthieu, 3d Dist. Mercer Nos. 10-02-04 and 10-02-05, 2003-Ohio-3430, ¶ 17.
{¶31} Taylor also asserts that there was insufficient evidence to support the guilty
verdicts for rape, kidnapping, and gross sexual imposition for the alleged incident on
October 10, 2012 against E.W.
{¶32} E.W. testified that after Taylor entered the house, he began touching her
neck and buttocks amidst her protestations. Taylor proceeded to kiss E.W.’s neck while
attempting to pull down her shorts. E.W. stated that Taylor overpowered her, they fell to
the ground, and he inserted his finger and then his penis into her vagina. E.W. said she
unsuccessfully tried to push him off and her pleas for him to stop went unheeded.
{¶33} After viewing the evidence in a light most favorable to the prosecution, the
above evidence, if believed, would support the conclusion that Taylor committed the
actions alleged. As such, any rational trier of fact would have found the essential elements
of the charges that led to his convictions proven beyond a reasonable doubt.
Consequently, the trial court did not err when it denied Taylor’s motion for acquittal.
Accordingly, we overrule the first assigned error.
Manifest Weight of the Evidence
{¶34} In the second assigned error, Taylor argues his convictions are against the
manifest weight of the evidence.
{¶35} In State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264,
the Ohio Supreme Court addressed the standard of review for a criminal manifest weight
challenge, as follows:
The criminal manifest-weight-of-the-evidence standard was explained in
State v. Thompkins (1997), 78 Ohio St.3d 380, 1997 Ohio 52, 678 N.E.2d
541. In Thompkins, the court distinguished between sufficiency of the
evidence and manifest weight of the evidence, finding that these concepts
differ both qualitatively and quantitatively. Id. at 386, 678 N.E.2d 541.
The court held that sufficiency of the evidence is a test of adequacy as to
whether the evidence is legally sufficient to support a verdict as a matter of
law, but weight of the evidence addresses the evidence’s effect of inducing
belief. Id. at 386-387, 678 N.E.2d 541. In other words, a reviewing court
asks whose evidence is more persuasive — the state’s or the defendant’s?
We went on to hold that although there may be sufficient evidence to
support a judgment, it could nevertheless be against the manifest weight of
the evidence. Id. at 387, 678 N.E.2d 541. “When a court of appeals
reverses a judgment of a trial court on the basis that the verdict is against
the weight of the evidence, the appellate court sits as a ‘thirteenth juror’ and
disagrees with the factfinder’s resolution of the conflicting testimony.” Id.
at 387, 678 N.E.2d 541, citing Tibbs v. Florida (1982), 457 U.S. 31, 42, 102
S.Ct. 2211, 72 L.Ed.2d 652.
Id. at ¶ 25.
{¶36} An appellate court may not merely substitute its view for that of the
factfinder, but must find that ‘“in resolving conflicts in the evidence, the factfinder clearly
lost its way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.’” State v. Walker, 8th Dist. Cuyahoga No. 99239,
2013-Ohio-3522, quoting Thompkins at 387. Accordingly, reversal on manifest weight
grounds is reserved for “the exceptional case that the evidence weighs heavily against the
conviction.” Id.{¶37} Based on our resolution of the first assigned error where we found that
Taylor’s convictions were supported by sufficient evidence, we conclude that this is not
the exceptional case where the evidence weighs heavily against the convictions. Much to
the contrary, Taylor’s convictions are not against the manifest weight of the evidence.
{¶38} Nonetheless, Taylor argues he was convicted solely on inconsistent
testimony. Specifically, Taylor claims the lack of blood at the crime scene, the lack of
injuries on E.W., and the lack of his DNA on or inside E.W., supports his argument that
his convictions were against the manifest weight of the evidence.
{¶39} As an initial matter, there is no requirement, statutory or otherwise, that a
victim’s testimony be corroborated as a condition precedent to a rape conviction. State v.
Sklenar, 71 Ohio App.3d 444, 447, 594 N.E.2d 88 (9th Dist.1991), citing State v. Gingell,
7 Ohio App.3d 364, 365, 455 N.E.2d 1066 (1st Dist.1982); State v. Love, 49 Ohio App.3d
88, 91, 550 N.E.2d 951 (1st Dist.1988). “Sexual conduct” does not require proof of
trauma. State v. Barnes, 1st Dist. Hamilton Nos. C-790595, C-790622, and C-790636,
1980 Ohio App. LEXIS 10250, 19 (Oct. 22, 1980). In other words, a physical injury is
not a condition precedent to a conviction for rape; not all rape victims exhibit signs of
physical injury. State v. Flowers, 10th Dist. Franklin No. 99AP-530, 2000 Ohio App.
LEXIS 1933 (May 4, 2000), citing State v. Van Buskirk, 8th Dist. Cuyahoga No. 57800,
1994 Ohio App. LEXIS 4409 (Sept. 29, 1994).
{¶40} Although we review credibility when considering the manifest weight of the
evidence, we are cognizant that determinations regarding the credibility of witnesses and
the weight of the testimony are primarily for the trier of fact. The trier of fact is best able
“to view the witnesses and observe their demeanor, gestures, and voice inflections, and
use these observations in weighing the credibility of the proffered testimony.” State v.
Kurtz, 8th Dist. Cuyahoga No. 99103, 2013-Ohio-2999, ¶ 26, quoting Wilson, 113 Ohio
St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24.
{¶41} After independently reviewing the entire record and weighing the
aforementioned evidence and all reasonable inferences, including the credibility of the
witnesses, 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.
Accordingly, we overrule the second assigned error.
Victim Impact Representative
{¶42} In the third assigned error, Taylor argues he was denied a fair trial when the
trial court permitted a representative of the Victim Impact Unit to stand with E.W. while
she testified. In the instant case, the trial court asked E.W. whether she need the
representative to stand nearby and E.W. indicated she needed the assistance.
{¶43} Evid.R. 611 empowers a trial court with broad discretion in controlling the
mode and order of interrogating witnesses and presenting evidence “so as to (1) make the
interrogation and presentation effective for the ascertainment of the truth, (2) avoid
needless consumption of time, and (3) protect witnesses from harassment or undue
embarrassment.” Thus, a procedure implemented by a trial court to elicit testimony from
a witness will not be disturbed on appeal absent a showing that the court abused its
discretion. State v. Johnson, 38 Ohio App.3d 152, 154, 528 N.E.2d 567 (5th Dist.1986).
{¶44} A review of the record reveals that the trial court’s decision to ask E.W.
whether she wanted the representative from the Victim Impact Unit to stand nearby, after
E.W. began crying during cross-examination, neither diminished Taylor’s constitutional
right to confront his accuser nor prejudiced his right to a fair trial.
{¶45} Many courts have permitted a variety of methods to facilitate the
presentation of the testimony of the child-victim witness in cases of sexual assault or
abuse. In Johnson, supra, the court held that it was neither a constitutional violation nor
an abuse of the trial court’s discretion to allow an eight-year-old victim to sit on the lap of
a relative during the presentation of the victim’s testimony. One court permitted a
five-year-old victim to sit on his father’s lap while testifying. State v. Barnhart, 12th Dist.
Clermont No. CA91-08-066, 1992 Ohio App. LEXIS 3770 (July 20, 1992). That court
also permitted an adult to sit beside a 13-year-old victim during the presentation of her
testimony. State v. Walton, 12th Dist. Clermont No. CA91-03-022, 1991 Ohio App.
LEXIS 5277 (Nov. 4, 1991). Under this case law, Taylor’s contention that his rights
were violated fails.
{¶46} The victim was a minor testifying about being raped by her cousin and
conceivably testifying in a courtroom where other family members are present, some of
whom were possibly aligned against the minor. Accordingly, the court’s action was
consistent with other cases involving a minor’s testimony. Consequently, we find no
prejudice to Taylor and overrule his third assigned error.
Denial of Motion for Mistrial
{¶47} In the fourth assigned error, Taylor argues the trial court erred by failing to
grant a mistrial because the curative jury instruction was inadequate.
{¶48} The decision whether to grant or deny a motion for mistrial lies within the
sound discretion of the trial court and will not be reversed absent a showing of an abuse
of discretion. State v. Willis, 8th Dist. Cuyahoga No. 99735, 2014-Ohio-114, ¶ 36, citing
State v. Garner, 74 Ohio St.3d 49, 59, 656 N.E.2d 623 (1995). An “abuse of discretion”
implies that the court’s attitude is unreasonable, arbitrary or unconscionable. Blakemore
v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶49} A mistrial should not be ordered in a criminal case “merely because some
error or irregularity has intervened, unless the substantial rights of the accused or the
prosecution are adversely affected.” State v. Reynolds, 49 Ohio App.3d 27, 33, 550
N.E.2d 490 (2d Dist.1988). Rather, the granting of a mistrial is necessary only when “a
fair trial is no longer possible.” State v. Franklin, 62 Ohio St.3d 118, 127, 580 N.E.2d 1(1991).
{¶50} In the instant case, the record reveals that in its opening statement, the state
declared that Taylor “took his cousin’s virginity” and during its direct examination of
E.W., the state asked questions about E.W.’s virginity. On cross-examination, defense
counsel asked questions about E.W.’s virginity. Following defense counsel’s questions,
the trial court instructed the jury that this line of questioning was improper.
{¶51} Thereafter, defense counsel indicated that it was the state who had opened
the door to elicit testimony regarding E.W.’s virginity, but the trial court’s statement
during his cross-examination gave the jury the impression that defense counsel might
have done something wrong. Therefore, defense counsel moved for a mistrial. The trial
court denied the motion and indicated that it would issue a curative instruction to the jury.
The trial court issue the following pertinent instructions:
Ladies and gentlemen of the jury, before we proceed, earlier in the trial
there was some discussion with reference to [E.W.] * * * and some of those
questions were made with reference to whether or not she had prior —
engaged in prior sexual activity.
The court then stopped this line of questioning, indicating to counsel that
the court thought that line of questioning was improper and cited the rule
that said that.
The court will inform you now that any questioning with reference to that
was improper, whether or not it was done by the government or the defense.
Tr. 464.
{¶52} Curative instructions have been recognized as an effective means of
remedying errors or irregularities that occur during trial. State v. Williams, 8th Dist.
Cuyahoga No. 94242, 2010-Ohio-5484, citing State v. Ghaster, 8th Dist. Cuyahoga No.
91576, 2009-Ohio-2134. A jury is presumed to follow the instructions, including
curative instructions, given it by a trial judge. Id., citing State v. Henderson, 39 Ohio
St.3d 24, 33, 528 N.E.2d 1237 (1988).
{¶53} Under these circumstances, and in light of the evidence presented in support
of Taylor’s convictions, we cannot find that the line of questions and the resulting
discussion, without more, materially prejudiced Taylor or interfered with his right to a fair
trial. We find, therefore, that the trial court did not abuse its discretion in failing to order a
mistrial following this remark. Accordingly, we overrule the fourth assigned error.
Consecutive Sentences
{¶54} In the fifth assigned error, Taylor argues the trial court’s imposition of
consecutive sentences was contrary to law and amounted to cruel and unusual
punishment.
{¶55} We review consecutive sentences using the standard set forth in R.C.
2953.08. State v. Nia, 8th Dist. Cuyahoga No. 99387, 2014-Ohio-2527, ¶ 15. That
statute provides two grounds for an appellate court to overturn the imposition of
consecutive sentences: (1) the sentence is “otherwise contrary to law”; or (2) the appellate
court, upon its review, clearly and convincingly finds that the record does not support the
sentencing court's findings under R.C. 2929.14(C)(4). Id. at ¶ 16; R.C. 2953.08(G)(2).
{¶56} R.C. 2929.14(C)(4) requires a trial court to make three distinct findings
when imposing consecutive sentences. The trial court must first find the sentence is
“necessary to protect the public from future crime or to punish the offender.” Next, the
trial court must find that consecutive sentences are “not disproportionate to the
seriousness of the offender’s conduct and to the danger the offender poses to the public.”
Finally, the trial court must find the existence of one of the three statutory factors set forth
in R.C. 2929.14(C)(4)(a)-(c). The failure to make these findings is contrary to law. Id. at ¶
19.
{¶57} In this case, a review of the record demonstrates that the trial court made the
statutorily mandated findings as outlined above. Upon imposing consecutive sentences,
the trial court stated :
This court does find that consecutive sentences are necessary to protect the
public from future crimes. The court further finds that based upon
defendant’s attitude when he testified, the way he presented himself during
his testimony, the lack of remorse that he showed, the lack of respect that he
obviously has for women, this court finds that consecutive sentences are
necessary to punish the offender. The court further finds that consecutive
sentences are not disproportionate to the danger the offender poses to the
public. And the court further finds that the offender’s history of criminal
conduct demonstrates that consecutive sentences are necessary to protect
the public from future crimes by the offender.
Tr. 888-889.
{¶58} Here, the trial court found that the sentence was “necessary to protect the
public from future crime or to punish the offender.” It also found that consecutive
sentences were “not disproportionate to the seriousness of Taylor’s conduct and to the
danger the offender poses to the public.”
{¶59} Finally, the trial court further found that this was one of the worst offenses
of its kind, because the Taylor and E.W. were related, that E.W. has been hindered in her
involvement with society, and Taylor threatened E.W. if she told anyone. Thus, the trial
court made all the findings required by R.C. 2929.14(C)(4) before imposing consecutive
sentences.
{¶60} To the extent that Taylor is arguing that the trial court did not consider
proportionality and consistency as required by R.C. 2929.11(B) in imposing consecutive
sentences, we find no merit.
{¶61} R.C. 2929.11(A) provides that a felony sentence shall be reasonably
calculated to achieve two “overriding purposes” of felony sentencing: (1) “to protect the
public from future crime by the offender and others,” and (2) “to punish the offender
using the minimum sanctions that the court determines accomplish those purposes * * *.”
In order to achieve these purposes, the sentence imposed for a felony must be
“commensurate with and not demeaning to the seriousness of the offender’s conduct and
its impact upon the victim, and consistent with sentences imposed for similar crimes
committed by similar offenders.” R.C. 2929.11(B). A court that imposes a sentence for
a felony has the discretion to determine the most effective way to comply with the
purposes and principles of sentencing outlined in the statute. R.C. 2929.12(A). In
exercising that discretion, however, the trial court must consider the seriousness,
recidivism, and other mitigating factors set forth in R.C. 2929.12. Id.
{¶62} While we note that the trial court must consider the principles and purposes
of sentencing as well as the mitigating factors as outlined above, the court is not required
to use particular language or make specific findings of its consideration of those factors.
State v. Jones, 8th Dist. Cuyahoga No. 99759, 2014-Ohio-29, ¶ 13, citing State v.
Carman, 8th Dist. Cuyahoga No. 99463, 2013-Ohio-4910, ¶ 14. In fact, R.C. 2929.11 and
2929.12 are not fact-finding statutes, and consideration of the appropriate factors can be
presumed unless the defendant affirmatively shows to the contrary. Id., citing State v.
Stevens, 1st Dist. Hamilton No. C-130278, 2013-Ohio-5218, ¶ 12. Nevertheless, as
previously noted, the record reflects that the court considered Taylor’s criminal record
and addressed the seriousness of Taylor’s actions. We are therefore not persuaded by
Taylor’s argument in this regard.
{¶63} In light of the foregoing findings and the record before us, we cannot clearly
and convincingly find that the trial court’s imposition of consecutive sentences is contrary
to law. Accordingly, we overrule the fifth assigned error.
Sexually Violent Predator Specification
{¶64} In the sixth assigned error, Taylor argues the trial court erred when it
instructed the jury, over his objection, that they could find him to be a sexually violent
predator. Specifically, Taylor contends that the indictment improperly charged him with
sexually violent predator specifications when he had no prior conviction for a sexually
violent offense.
{¶65} Taylor relies on State v. Smith, 104 Ohio St.3d 106, 2004-Ohio-6238, 818
N.E.2d 283, in support of his position. In Smith, the court held that a “conviction of a
sexually violent offense cannot support the specification that the offender is a sexually
violent predator as defined in R.C. 2971.01(H)(1) if the conduct leading to the conviction
and the sexually violent predator specification are charged in the same indictment.” Id. at
syllabus. However, Taylor’s reliance on Smith is misplaced.
{¶66} Prior to April 29, 2005, R.C. 2971[.01](H)(1), defined a sexually violent
predator as “a person who has been convicted of or pleaded guilty to committing, on or
after January 1, 1997, a sexually violent offense and is likely to engage in the future in
one or more sexually violent offenses.” State v. Wagers, 12th Dist. Preble No.
CA2009-06-018, 2010 Ohio 2311, ¶ 28. The current version of the statute provides:
“Sexually violent predator means a person who, on or after January 1, 1997, commits a
sexually violent offense and is likely to engage in the future in one or more sexually
violent offenses.” R.C. 2971.01(H)(1).
{¶67} We have previously interpreted the General Assembly’s purpose in revising
R.C. 2971.01(H)(1) to allow for the inclusion of a sexually violent predator specification
in the indictment of one being charged for the first time with a sexually violent offense.
State v. Green, 8th Dist. Cuyahoga No. 96966, 2012-Ohio-1941, ¶ 25. See also State v.
Stansell, 8th Dist. Cuyahoga No. 100604, 2014-Ohio-1633.
{¶68} Given the revisions to the statute and the General Assembly’s explicit
purposes in enacting them, the present law allows for the inclusion of a sexually violent
predator specification in the indictment of one being charged for the first time with a
sexually violent offense. Consequently, the trial court did not err when it instructed the
jury that it could find Taylor guilty of the sexually violent predator specification.
Accordingly, we overrule the sixth assigned error.
Court Costs
{¶69} In the seventh assigned error, Taylor argues that the trial court erred when it
did not impose costs at the sentencing hearing, but ordered him to pay court costs in the
journal entry. In support of his argument, appellant cites to the Ohio Supreme Court’s
decision in State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278.
{¶70} In Joseph, the court held that it is reversible error under Crim.R. 43(A) for
the trial court to impose costs in its sentencing entry when it did not impose those costs in
open court at the sentencing hearing. Id. at ¶ 22. The court reasoned that the defendant
was denied the opportunity to claim indigency and to seek a waiver of the payment of
court costs before the trial court because the trial court did not mention costs at the
sentencing hearing. Id. The remedy in such a situation is a limited remand to the trial
court for the defendant to seek a waiver of court costs. Id. at ¶ 23; State v. Mays, 2d Dist.
Montgomery No. 24168, 2012-Ohio-838, ¶ 17.
{¶71} In its brief to this court, the state maintains that the trial court in fact
imposed costs in open court. Our review of the record reveals that the trial court
mentioned costs twice during Taylor’s sentencing hearing. In relevant part, the trial
court stated:
On the kidnapping, * * *. The sentence of the Court is [$]250 in costs, 11
years at the Lorain Correctional Institution. * * *. On Count 9, intimidation
of a witness, the sentence of the court is [$]250 in costs, * * *.
Tr. at 888.
However, in its journal entry, the trial court stated in pertinent part as follows:
The court hereby enters judgment against the defendant in an amount equal
to the costs of this prosecution.
Journal Entry, July 29, 2013.
{¶72} During oral argument, this court queried whether the state would concede.
The state was reluctant, but admitted that it had failed to present evidence relevant to the
cost of prosecution. Consequently, because of the discrepancy in the trial court’s
pronouncement at the sentencing hearing with that in the journal entry, we sustain the
assigned error, vacate the cost contemplated by the journal entry, and remand this matter
to the trial court to allow Taylor to move the court for a waiver of court costs pronounced
at the sentencing hearing.
{¶73} Judgment affirmed in part, reversed in part, and the cause remanded to allow
appellant to seek a waiver of court costs and to correct the July 29, 2013 journal entry.
It is ordered that appellant and appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment
into execution. The defendant’s conviction having been affirmed, any bail pending
appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, JUDGE
LARRY A. JONES, SR., P.J., CONCURS (WITH ATTACHED SEPARATE
OPINION);
EILEEN T. GALLAGHER, J., CONCURS AND CONCURS WITH ATTACHED
OPINION
LARRY A. JONES, SR., P.J., CONCURRING:
{¶74} I concur with the majority’s holding in this case but write separately to
address the third assignment of error and my concern with the trial court’s decision to sua
sponte offer to have a representative from the Victim Impact Unit stand next to E.W.
during her testimony. Taylor argues on appeal that the trial court’s actions could have
elicited unfair sympathy from the jury towards E.W. and deprived him of a fair trial.
{¶75} The transcript reflects that shortly into E.W.’s direct examination, the
prosecutor asked her, “Are you okay?” E.W. responded, “Yeah. Yes.” The court
questioned, “Ms. [E.W.], do you want the lady from victim impact to come stay with
you?” E.W. replied, “Yeah.” Defense counsel objected. The trial court called a
sidebar and defense counsel argued that allowing the victim representative to stand next
to E.W. would “corroborate” and “give credence to” E.W.’s “story.” The trial court
disagreed, reasoning that the victim representative was not going to testify; thus, she was
going to support E.W., not “support” E.W.’s “story.”
{¶76} The cases the majority cites involve much younger children; E.W. was 17
years old when she testified. Moreover, it is interesting to note that in State v. Walton,
12th Dist. Clermont No. CA91-03-022, 1991 Ohio App. LEXIS 5277 (Nov. 4, 1991), it
was only after the court recessed and convened with counsel in chambers, that the court
allowed an adult to sit next to the 13-year-old victim during her testimony. Id. at *5.
Here, the court held a brief sidebar before summarily overruling defense counsel’s
objections.
{¶77} Although Evid.R. 611 empowers the trial court with broad discretion to
conduct its courtroom in its own fashion, a better course of action would have been for
the trial court to have taken a recess so that E.W. could have composed herself and
received support from the victim representative outside the presence of the jury.
{¶78} Instead, the trial court’s decision to offer to have the victim representative
come stand next to E.W. during her testimony gave the appearance that the victim
representative was improperly vouching for her credibility.
{¶79} However, pursuant to Crim.R. 52(A), I would find the error harmless
because there was overwhelming evidence to support the guilty verdicts. See State v.
Webb, 70 Ohio St.3d 325, 335, 638 N.E.2d 1023 (1994) (holding that a nonconstitutional
error is harmless when there is substantial other evidence to support the guilty verdict.)
Therefore, I would not reverse based on the trial court’s decision to allow the victim
representative, over defense counsel’s objection, to stand next to the victim while she
testified.