State v. Lowd

[Cite as State v. Lowd, 2010-Ohio-193.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
STATE OF OHIO, CASE NO. 5-09-16
PLAINTIFF-APPELLEE,
v.
FRANK S. LOWD, JR., OPINION
DEFENDANT-APPELLANT.
Appeal from Hancock County Common Pleas Court
Trial Court No. 2008-CR-83
Judgment Affirmed
Date of Decision: January 25, 2010
APPEARANCES:
Robert Searfoss, III for Appellant
Mark C. Miller for Appellee
Case No. 5-09-16
WILLAMOWSKI, P.J.
{¶1} Defendant-appellant Frank S. Lowd, Jr. (“Lowd”) brings this appeal
from the judgment of the Court of Common Pleas of Hancock County. For the
reasons set forth below, the judgment is affirmed.
{¶2} On April 1, 2008, Lowd was indicted on two counts of rape, in
violation of R.C. 2907.02(A)(1)(b), and three counts of gross sexual imposition, in
violation of R.C. 2907.05(A)(4). Lowd entered pleas of not guilty to all counts on
April 9, 2008. From March 30 to April 1, 2009, a jury trial was held. The jury
returned verdicts of guilty to all counts on April 1, 2009. A sentencing hearing
was held on April 14, 2009. The trial court entered judgment sentencing Lowd to
ten years in prison on each of the first two counts, to be served consecutively, to
five years in prison for the third count, to be served consecutive to the rape
charges, and to five years each for the fourth and fifth counts, to be served
concurrent to each other, but consecutive to the other counts. The total sentence
imposed was 30 years in prison. Lowd appeals from this judgment and raises the
following assignments of error.
First Assignment of Error
The trial court erred as a matter of law entering judgment of
conviction on Count 1 for rape and Count 3 for gross sexual
imposition because they are all allied offenses of similar import,
not committed separately or each with a separate animus.
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Second Assignment of Error
The trial court erred as a matter of law entering judgment of
conviction on both Count 4 and Count 5 each for gross sexual
imposition because they are allied offenses of similar import, not
committed separately or each with a separate animus.
Third Assignment of Error
The trial court erred in entering judgments of conviction on
Counts 2, 4, and 5 because those judgments are not supported
by sufficient evidence.
Fourth Assignment of Error
The judgments of conviction for Counts 2, 4 and 5 are against
the manifest weight of the evidence.
{¶3} In the first and second assignments of error, Lowd alleges that
convictions for counts one and three and convictions for counts four and five are
not permitted because they are allied offenses of similar import, not committed
separately, and not committed with a separate animus.
(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the
indictment or information may contain counts for all such
offenses, but the defendant may be convicted of only one.
(B) Where the defendant’s conduct constitutes two or more
offenses of dissimilar import, or where his conduct results in
two or more offenses of the same or similar kinds committed
separately or with a separate animus as to each, the indictment
or information may contain counts for all such offenses, and the
defendant may be convicted of all of them.
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R.C. 2941.25. The Ohio Supreme Court has long held that R.C. 2941.25 requires
a two-step analysis. State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886
N.E.2d 181; State v. Blankenship (1988), 38 Ohio St.3d 116, 526 N.E.2d 870;
State v. Logan (1979) 60 Ohio St.2d 127, 397 N.E.2d 1345.
In the first step, the elements of the two crimes are compared.
If the elements of the offenses correspond to such a degree that
the commission of one crime will result in the commission of the
other, the crimes are allied offenses of similar import and the
court must then proceed to the second step. In the second step,
the defendant’s conduct is reviewed to determine whether the
defendant can be convicted of both offenses. If the court finds
either that the crimes were committed separately or that there
was a separate animus for each crime, the defendant may be
convicted of both offenses.
Blankenship, supra at 117. The Ohio Supreme Court has also held that the
elements of the offenses are to be compared in the abstract. State v. Rance
(1999), 85 Ohio St.3d 632, 710 N.E.2d 699. However, the Court clarified the
requirements of Rance in Cabrales.
R.C. 2941.25 essentially codified the judicial merger doctrine.
“The basic thrust of [R.C. 2941.25(A)] is to prevent ‘shotgun’
convictions. For example, a thief theoretically is guilty not only
of theft but of receiving stolen goods, insofar as he receives,
retains, or disposes of the property he steals. Under this section,
he may be charged with both offenses but he may be convicted
of only one, and the prosecution sooner or later must elect as to
which offense it wishes to pursue.” * * * If Rance imposed a
strict textual comparison, even theft and receiving stolen
property would not be allied offenses of similar import, because
their elements do not exactly coincide.
Were we to apply Rance as requiring a strict textual comparison
as urged by the state, we would be compelled to reverse the
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appellate court’s holding that possession and trafficking under
R.C. 2925.03(A)(2) of the same controlled substance are allied
offenses of similar import, because the elements of these offenses
do not coincide exactly, even though common sense and logic tell
us that in order to prepare a controlled substance for shipping,
ship it, transport it, deliver it, prepare it for distribution, or
distribute it, one must necessarily also possess it. * * *
Even after Rance, this court has recognized that certain offenses
are allied offenses of similar import even though their elements
do not align exactly. * * * In these cases, we did not overrule or
modify Rance, but we did not apply a strict textual comparison
in determining whether the offenses were allied under R.C.
2941.25(A). For example, the elements of theft and the elements
of receiving stolen property differ, and therefore under a strict
textual comparison test they could not be allied offenses of
similar import under R.C. 2941.25(A). However, comparing
these two offenses in [State v. Yarbrough, 104 Ohio St.3d 1, 2004-
Ohio-6087, 817 N.E.2d 845], we found that they were allied,
stating that “when the elements of each crime are aligned, the
offenses’” correspond to such a degree that the commission of
one crime”’ resulted ‘”in the commission of the other,”’” the
offenses are allied. * * *
Thus, we have already implicitly recognized that Rance does not
require a strict textual comparison under R.C. 2941.25(A).
Instead, if, in comparing the elements of the offenses in the
abstract, the offenses are so similar that the commission of one
offense will necessarily result in commission of the other, then
the offenses are allied offenses of similar import.
It is clear that interpreting Rance to require a strict textual
comparison under R.C. 2941.25(A) conflicts with legislative
intent and causes inconsistent and absurd results. Accordingly,
we clarify that in determining whether offenses are allied
offenses of similar import under R.C. 2941.25(A), Rance
requires courts to compare the elements of offenses in the
abstract, i.e., without considering the evidence in the case, but
does not require an exact alignment of elements.
Cabrales, supra at ¶23-27 (citations ommitted).
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{¶4} In the first assignment of error, Lowd claims that the first and third
counts of the indictment are allied offenses of similar import. The first step in
determining this is to examine the statutory requirements in the abstract. The first
count charged Lowd with rape in violation of R.C. 2907.02(A)(1)(b).
No person shall engage in sexual conduct with another who is
not the spouse of the offender * * * when any of the following
applies
***
(b) The other person is less than thirteen years of age,
whether or not the offender knows the age of the other person.
R.C. 2907.02(A)(1)(b). The third count charges Lowd with gross sexual
imposition in violation of R.C. 2907.05(A)(4).
No person shall have sexual contact with another, not the spouse
of the offender * * * when any of the following applies:
***
(4) The other person, or one of the other persons, is less than
thirteen years of age, whether or not the offender knows the age
of that person.
R.C. 2907.05(A)(4). The definition of sexual conduct includes vaginal
intercourse between a male and female, anal intercourse, fellatio and cunnilingus.
R.C. 2907.01(A). Sexual contact is defined as “any touching of an erogenous
zone of another, including without limitation the thigh, genitals, buttock, pubic
region, or if the person is a female, a breast for the purpose of sexually arousing
or gratifying either person.” R.C. 2907.01(B). A review of the elements indicates
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that it is impossible to engage in sexual conduct without also engaging in sexual
contact. Thus, gross sexual imposition is an allied offense of rape. See State v.
Sparks (Nov. 4, 1991), 12th Dist. No. CA91-02-004. However, this does not mean
that Lowd cannot be convicted on both counts.
{¶5} The second step in the analysis is to determine whether there was a
separate animus for the offenses or if they were committed at separate times.
According to the testimony presented to the trial court, Lowd ordered the victim
to rub his penis. He then ordered the victim to perform fellatio on him. These are
separate acts and one was not incidental to the other. Additionally, the testimony
was that these incidents occurred on more than one occasion. Thus, pursuant to
R.C. 2941.25(B), Lowd could be charged and convicted of both offenses. The
first assignment of error is overruled.
{¶6} In the second assignment of error, Lowd argues that the fourth and
fifth counts of the indictment are also allied offenses of similar import. Both
counts charge Lowd with gross sexual imposition in violation of R.C.
2907.05(A)(4). Being the same charge, the elements will obviously be identical.
However, the counts allege that there were two victims and that both were under
the age of 13. At trial, one of the victims, C.C. testified that Lowd told him and
the other victim, S.S., to undress and that Lowd told him to lie on top of S.S. and
attempt to put his penis inside her vaginal cavity. C.C. also testified that Lowd
made S.S. perform fellatio on C.C.. This testimony presented two separate
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incidents with two victims, both under the age of thirteen. Thus, Lowd can be
charged and convicted of both counts of gross sexual imposition. The second
assignment of error is overruled.
{¶7} The third assignment of error alleges that the verdicts are not
supported by sufficient evidence.
Sufficiency of the evidence is a test of adequacy used 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.” * * * A conviction based on insufficient evidence
constitutes a denial of due process, and the defendant may not
be recharged for the offense. * * * In reviewing a claim under
the sufficiency of the evidence standard, an appellate court must
determine “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. Alvarado, 3d Dist. No. 12-07-14, 2008-Ohio-4411, ¶23 (citations omitted).
{¶8} A review of the record in this case indicates the following
testimony. The first witness was Dwight Decker (“Decker”), who previously
worked with Lowd. Tr. 204. Decker testified that Lowd told him that he had
made a young girl perform fellatio on him and that he had made that girl and a
young boy perform sexual acts with each other. Tr. 207-08. Decker testified that
Lowd bragged about teaching the girl to perform fellatio. Tr. 208. Lowd also
identified the kids in such a way that authorities were eventually able to locate
them. Tr. 209-10.
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{¶9} Detective Matthew Tuttle testified that he was the investigating
officer. He spoke with Decker concerning the allegations and then proceeded to
identify the victims. Tr. 233-242. He then interviewed the child witness, C.S.,
and the two victims, S.S. and C.C.. Tr. 242-257. He also interviewed Lowd as
part of his investigation. Tr. 259.
{¶10} The grandmother of one of the victims testified that she had
previously had a relationship with Lowd and that he had been left alone with the
children on multiple occasions. Tr. 311. She testified that Lowd took the
children camping and was alone with them when the incidents occurred. Tr. 318
{¶11} C.S. and S.S.’s mother testified that she permitted Lowd to watch
the children as she thought he was a friend. Tr. 348-49. She testified that she
allowed the children to go camping with Lowd. Tr. 351. She also testified that
during the summer of 2006, after the start of the camping trips, S.S., then a 10
year old girl, began wetting the bed. Tr. 353. S.S. stopped wetting the bed after
she no longer had contact with Lowd. Tr. 354.
{¶12} C.S. testified that he and S.S. went camping with Lowd a few times.
Tr. 385. On one of the trips, he testified that he saw S.S. rubbing Lowd’s penis at
Lowd’s instruction. Tr. 386. He also saw Lowd make S.S. perform fellatio. Id.This occurred more than once. Id. C.S. also testified that he heard Lowd tell S.S.
and C.C. to disrobe. Tr. 389. Lowd then told C.C. to lie on top of S.S. and
attempt to engage in vaginal intercourse with S.S. Id. C.S. testified that the
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children complied because Lowd threatened to get them in trouble if they did not.
Id.{¶13} C.C. testified that he only went camping with Lowd on one
occasion. Tr. 409. On that trip, no other adult besides Lowd was present. Tr.
400. At the time of the trip, he was 12 years old. Id. S.S. was younger than him.
Tr. 399. C.C. testified that Lowd told him and S.S. to go into the tent and get
undressed. Tr. 400. C.S. was not in the tent. Id. Lowd went into the tent as well
and made S.S. perform fellatio on Lowd. Id. Lowd then told S.S. to perform
fellatio on C.C. Tr. 401. After that, Lowd instructed S.S. to lie on the ground and
C.C. to lie on top of her. Id. C.C. testified that at that time, his penis was
touching S.S.’s vagina. Id. C.C. then testified that Lowd heard a noise and told
them to get dressed. Id. C.S. walked into the tent while they were getting
dressed. Id. C.C. testified that Lowd threatened to tell C.C.’s father something
that would make him mad enough to paddle him in order to make him comply
with Lowd’s instructions. Id.{¶14} Finally, Kay Schamp testified for the State. She testified that she
was C.C.’s counselor. Tr. 479. She also testified that C.C. had told her he was
sexually abused by Lowd. Tr. 481, 484.
{¶15} Following the State’s case in chief, Lowd presented the testimony
of three witnesses, Barry Cramer, Lance Lowd, and Rebecca Linda Lowd. These
witnesses all testified that they had no reason to believe that Lowd would do this
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and that family members of the victims had reason to be biased against Lowd.
Lowd testified on his own behalf as well. He testified that he had been involved
in sexual relationships with both the mother and grandmother of S.S. and C.S..
Tr. 588, 590. He also testified that Decker “had it in for him” because they had a
disagreement at work. Tr. 597. Decker allegedly would frequently try to cause
trouble for him at work. Tr. 601-02. Lowd admitted to taking the children
camping, but denied any sexual contact with them or having C.C. and S.S. engage
in sexual conduct. Tr. 613.
{¶16} Viewing the evidence in a light most favorable to the state, there is
evidence that Lowd made S.S. perform fellatio on him on two different occasions
– one time witnessed by C.S. and one time witnessed by C.C. when C.S. was not
in the tent. Thus, the two rape charges are supported by sufficient evidence.
There is also evidence per the testimony of C.S. that Lowd made S.S. rub his
penis, thus supporting the conviction on the third count. Finally, C.C. testified as
to the sexual contact between himself and S.S. that occurred at the direction of
Lowd. This testimony was bolstered by the testimony of C.S. that he heard Lowd
directing C.C. and S.S.. Thus, there is sufficient evidence to support the
convictions on the fourth and fifth counts of gross sexual imposition. The third
assignment of error is overruled.
{¶17} Lowd alleges in the fourth assignment of error that his convictions
are against the manifest weight of the evidence. Unlike sufficiency of the
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evidence, the question of manifest weight of the evidence does not view the
evidence in a light most favorable to the prosecution.
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 will be entitled to
their verdict, if, on weighing the evidence in their minds, they
shall find the greater amount of credible evidence sustains the
issue which is to be established before them. Weight is not a
question of mathematics, but depends on its effect in inducing
belief.”
State v. Thompkins (1997), 78 Ohio St.3d 380, 387, 678 N.E.2d 514 (citing Black’s
Law Dictionary (6 Ed.1990) 1594). A new trial should be granted only in the
exceptional case in which the evidence weighs heavily against conviction. Id.Although the appellate court acts as a thirteenth juror, it still must give due
deference to the findings made by the jury.
The fact-finder, being the jury, occupies a superior position in
determining credibility. The fact-finder can hear and see as
well as observe the body language, evaluate voice inflections,
observe hand gestures, perceive the interplay between the
witness and the examiner, and watch the witness’ reaction to
exhibits and the like. Determining credibility from a sterile
transcript is a Herculean endeavor. A reviewing court must,
therefore, accord due deference to the credibility determinations
made by the fact-finder.
State v. Thompson (1998), 127 Ohio App.3d 511, 529, 713 N.E.2d 456.
{¶18} A review of the record in this case indicates that the defense
presented by Lowd was one of complete denial. Thus, the jury had to determine
who was more credible: C.S. and C.C. or Lowd. No one else who testified had
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direct knowledge of what happened on the camping trips. In support of C.S. and
C.C., the State also presented the testimony of Decker as to what Lowd allegedly
admitted to him. This court must give deference to the findings of the jury. Given
the testimony as discussed above, this court does not find that the weight of the
evidence weighs heavily against conviction or that the jury lost its way. Thus, the
verdicts are not against the manifest weight of the evidence. The fourth assignment
of error is overruled.
{¶19} Having found no error prejudicial to the defendant, the judgment of
the Court of Common Pleas of Hancock County is affirmed.
Judgment Affirmed
ROGERS and PRESTON, J.J., concur.
/jnc
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