State v. Frazier

[Cite as State v. Frazier, 2019-Ohio-2739.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 107680
v. :
BRANDON FRAZIER, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: July 3, 2019
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-17-621629-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Debora Brewer and Katherine Mullin,
Assistant Prosecuting Attorneys, for appellee.
Mark A. Stanton, Cuyahoga County Public Defender, and
Frank Cavallo, Assistant Public Defender, for appellant.
LARRY A. JONES, SR., J.:
Defendant-appellant Brandon Frazier appeals his convictions for
rape, attempted rape, kidnapping, and unlawful sexual conduct with a minor.
Finding no merit to the appeal, we affirm.
In 2017, Frazier was charged with three counts of rape, and one count
each of attempted rape, kidnapping with a sexual motivation specification, and
unlawful sexual conduct with a minor, accompanied by notices of prior conviction
and repeat violent offender specifications. The matter proceeded to a trial by jury;
the notices of prior conviction and repeat violent offender specifications were tried
to the bench.
A.F. testified that in July 2014, she was 13 years old and visiting her
father, with whom she did not live, when Frazier, her uncle, stopped over. Frazier
asked A.F. if she wanted to go to the store with him. According to A.F., the following
then occurred. A.F. got into Frazier’s car, despite her mother and stepmother’s
admonitions to stay away from Frazier because he was “bad.” Frazier began driving
but did not stop at any of the several stores they passed. Instead, he pulled down a
side street and into the driveway of a blue house. He told A.F. that it was a co-
worker’s house and he needed to pick up something. Frazier had a key to the house
and let A.F. inside, where she went to look for a television remote. She was in the
master bedroom and on the bed, looking under the bed for the remote, when Frazier
came in and shut the door. He pulled A.F.’s pants down and told her to lay back on
the bed. Frazier then performed oral sex on A.F. She tried to “push” up and down
to get him to stop. Frazier stood up and pulled A.F. to a standing position. He then
took off A.F.’s shirt, forcibly tried to kiss her, and forced her to perform oral sex on
him after pushing her to her knees.
After the assault, Frazier drove A.F. to another house. On the way
there, he rubbed A.F.’s inner thigh and told her not to tell anyone what happened.
In the summer of 2017, A.F. and her mother were at a church meeting
when A.F. texted her mother, who was sitting a few pews away, and disclosed the
assault via two lengthy text message exchanges. In the text message exchanges,
copies of which were submitted into evidence, A.F. made her mother promise she
would not tell anyone about the assault. A.F.’s mother testified she was able to
convince her daughter to report the assault to the police.
During trial, the state dismissed one count of rape. The jury convicted
Frazier of all remaining counts. The trial court found Frazier to be a repeat violent
offender and sentenced him to a total of ten years in prison. Further facts will be
discussed under the assignments of error.
Frazier filed a timely notice of appeal and raises the following
assignments of error for our review:
I. There was insufficient evidence produced at trial to support a finding
of guilt on all counts.
II: Appellant’s convictions were against the manifest weight of the
evidence.
III: The trial court committed plain error when it instructed that a
lesser demonstration of force was required when the relationship
between victim and defendant was one of child and adult or authority
figure.
IV: Appellant was denied the effective assistance of counsel where
trial counsel acquiesced in a jury instruction providing for an
incorrect, lesser requirement of force where the relationship between
the victim and defendant was one of child and adult or authority
figure.
Frazier’s Convictions Were Supported by Sufficient Evidence
In the first assignment of error, Frazier contends that there was
insufficient evidence to support his convictions.
Crim.R. 29(A) provides for an acquittal “if the evidence is insufficient
to sustain a conviction of such offense or offenses.” A sufficiency challenge
essentially argues that the evidence presented was inadequate to support the jury
verdict as a matter of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d
541 (1997). “’The relevant question is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”’ State v. Getsy, 84 Ohio
St.3d 180, 193, 702 N.E.2d 866 (1998), quoting Jackson v. Virginia, 443 U.S. 307,
99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “[A] conviction based on legally insufficient
evidence constitutes a denial of due process.” Thompkins at id., citing Tibbs v.
Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed. 652 (1982). When reviewing a
sufficiency of the evidence claim, we review the evidence in a light most favorable to
the prosecution. State v. Hill, 75 Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996).
Rape and Attempted Rape
Frazier claims that there was insufficient evidence that he raped and
attempted to rape A.F. R.C. 2907.02(A)(2) provides that “[n]o person shall engage
in sexual conduct with another who is not the spouse of the offender * * * when
offender purposely compels the other person to submit by force or threat of force.”
R.C. 2923.02 provides: “No person, purposely or knowingly, and when purpose or
knowledge is sufficient culpability for the commission of an offense, shall engage in
conduct that, if successful, would constitute or result in the offense.”
In Ohio, “sexual conduct” is defined as vaginal intercourse between a
male and female; anal intercourse, fellatio, and cunnilingus between persons
regardless of sex; and, without privilege to do so, the insertion, however slight, of
any part of the body or any instrument, apparatus, or other object into the vaginal
or anal opening of another. R.C. 2907.01(A).
R.C. 2901.01(A)(1) defines “force” as “any violence, compulsion, or
constraint physically exerted by any means upon or against a person or thing.” The
Ohio Supreme Court has held that neither an express threat of harm nor evidence of
significant physical restraint need be proven to establish the element of force in a
rape case involving a minor child when the offender stands in a position of authority.
State v. Dye, 82 Ohio St.3d 323, 695 N.E.2d 763 (1998), paragraph one of the
syllabus; State v. Thomas, 8th Dist. Cuyahoga No. 101797, 2015-Ohio-3226, ¶ 52.
Further, R.C. 2907.02(C) provides: “A victim need not prove physical resistance to
the offender in prosecutions under [R.C. 2907.02].”
Frazier contends that there was insufficient evidence that he
committed rape via forced oral intercourse and digital penetration. According to
Frazier, the state did not present evidence that Frazier used force or sufficient
evidence that A.F. was an unwilling participant. After a careful review of the record
and considering the evidence in a light most favorable to the state, we find that the
state provided sufficient evidence of rape and attempted rape.
A.F. testified that Frazier first digitally penetrated her with his index
finger. When A.F. said “no” because it hurt, “he took it out and stopped.” A.F.
further testified that Frazier laid her back on the bed, took off her pants, and started
“biting” and “licking” her vagina. According to A.F. she tried to “push” herself up or
down, hoping that he would stop, but he did not stop. Frazier then attempted to kiss
A.F., but she turned her head. He tried to push A.F. to her knees by putting his hand
on top of her head but, A.F. testified, she resisted:
* * * he tried to push me down, my head, he put his hand on top of my
head to try to push me down to lower me, and it didn’t work because
I’m sufficiently tall and I wouldn’t go down, but I was really stiff. And
at that point he got me to where I was on my knees and my mouth did
get on his [penis].
A.F. testified that she initially told Frazier “no,” but stopped repeating
it because she thought her telling him “no” did not mean anything to him since he
kept assaulting her. She also explained that she did not fight Frazier off because he
was bigger than she.
A.F. testified that she never told her father about the assault because
she was afraid he would not believe her over Frazier. She also did not disclose the
assault to her mother until 2017 because she wanted to spend time with her father
and was worried that her mother would not allow A.F. to go to her father’s house if
her mother knew about the assault.
Even though the state did not need to show that A.F. physically
resisted Frazier in order to establish the elements of rape, A.F. testified that she tried
to resist Frazier pushing her down to her knees to perform fellatio. Moreover, we
note that although A.F. did not have a close relationship with her uncle, he was still
an adult relative who was 36 years old at the time of the assault. It is the position of
authority and power, in relationship with the child’s vulnerability, which creates “a
unique situation of dominance and control in which explicit threats and displays of
force are unnecessary.” State v. Eskridge, 38 Ohio St.3d 56, 56, 526 N.E.2d 304(1988), citing State v. Fowler, 27 Ohio App.3d 149, 154, 500 N.E.2d 390 (8th Dist.
1985), citing State v. Etheridge, 319 N.C. 34, 47, 352 S.E.2d 673 (1987). Frazier held
a position of authority over A.F. by virtue of his familial relationship, age, and size.
Kidnapping
Frazier next contends that the state presented insufficient evidence of
kidnapping, again claiming that any sexual conduct was consensual. We disagree.
Frazier was convicted of kidnapping, in violation of R.C. 2905.01,
which states that “[n]o person, by force, threat, or deception * * * by any means,
shall remove another from the place where the other person is found or restrain the
liberty of the other person * * * to engage in sexual activity * * * with the victim
against the victim’s will.”
A.F. testified that Frazier asked her if she wanted to go to the store
with him. She got into his car with the expectation that he was taking her to the
store. But, A.F. testified, Frazier did not stop at any stores, even though A.F. asked
him multiple times if they were going to stop. Frazier eventually pulled down a
street and stopped at a house. Once in the house, A.F. did not feel as though she
could leave the bedroom: “He had to block the door and the window, I felt if I tried
to leave he wouldn’t let me.” A.F. also testified that she told Frazier “no,” and
resisted his pushing her head down with his hand, but he was able to get her to her
knees to perform oral intercourse. Thus, the state provided sufficient evidence
through A.F.’s testimony that Frazier used deception to lure A.F. into his car so that
he could remove her from her father’s house and engage in sexual activity against
her will.
Unlawful Sexual Conduct with a Minor
Frazier next contends that the state did not present sufficient
evidence to convict him of unlawful sexual conduct with a minor.
R.C. 2907.04(A), which prohibits unlawful sexual conduct with a
minor, provides that “[n]o person who is eighteen years of age or older shall engage
in sexual conduct with another, who is not the spouse of the offender, when the
offender knows the other person is thirteen years of age or older but less than sixteen
years of age, or the offender is reckless in that regard.”
Frazier claims that he did not know A.F. was under 16 years of age
when he engaged in a sexual relationship with her, nor was he reckless in that
regard. Under R.C. 2901.22(C):
A person acts recklessly when, with heedless indifference to the
consequences, he perversely disregards a known risk that his conduct is likely to
cause a certain result or is likely to be of a certain nature. A person is reckless with
respect to circumstances when, with heedless indifference to the consequences, he
perversely disregards a known risk that such circumstances are likely to exist.
The legislature intentionally based the definition of “recklessness” on
the likelihood, rather than the probability, of a certain result. See id. at staff notes.
“Something is ‘probable’ when there is more reason for expectation or belief than
not, whereas something is ‘likely’ when there is merely good reason for expectation
or belief.” Id.; see also State v. Becker, 8th Dist. Cuyahoga No. 100524, 2014-Ohio-
4565.
We find that the state presented sufficient evidence that Frazier either
knew A.F. was under the age of 16 or was reckless in that regard. Frazier is A.F.’s
paternal uncle; it is reasonable to assume that Frazier knew, or was reckless in not
knowing, A.F.’s age.
Finding that the state presented sufficient evidence to convict Frazier
of rape, attempted rape, kidnapping, and unlawful sexual conduct with a minor, the
first assignment of error is hereby overruled.
Frazier’s Convictions were not Against the Manifest Weight of the
Evidence
In the second assignment of error, Frazier claims that his convictions
were against the manifest weight of the evidence.
In contrast to sufficiency, “weight of the evidence involves the
inclination of the greater amount of credible evidence.” Thompkins, 78 Ohio St.3d
at 387, 678 N.E.2d 541. While “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, * * *
weight of the evidence addresses the evidence’s effect of inducing belief.” State v.
Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing
Thompkins at 386-387. The reviewing court must consider all the evidence in the
record, the reasonable inferences, and the credibility of the witnesses, to determine
whether, “‘in resolving conflicts in the evidence, the jury clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed
and a new trial ordered.”’ Thompkins at 387, quoting State v. Martin, 20 Ohio
App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
We are mindful that the weight to be given the evidence and the
credibility of the witnesses are matters primarily for the trier of fact. State v.
DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus.
The trier of fact has the authority to “believe or disbelieve any witness or accept part
of what a witness says and reject the rest.” State v Antill, 176 Ohio St. 61, 67, 197
N.E.2d 548 (1964).
Frazier contends that his convictions are against the manifest weight
of the evidence because A.F. could not specify the date and location of the assault.
The indictment in this case listed the date of the assault as between July 2 and
August 31, 2014. During her testimony, A.F. said the assault occurred in July 2014.
The date of the offense is not an element of the crime charged:
Where such crimes constitute sexual offenses against children,
indictments need not state with specificity the dates of alleged abuse,
so long as the prosecution establishes that the offense was committed
within the time frame alleged. This is partly due to the fact that the
specific date and time of the offense are not elements of the crimes
charged.
State v. Bruce, 8th Dist. Cuyahoga No. 92016, 2009-Ohio-6214, ¶ 112.
In addition, even though A.F. did not know the name of the street
where the assault occurred, she testified that it occurred in Cleveland, Cuyahoga
County, Ohio.
Frazier also claims that the verdict was against the manifest weight of
the evidence because there was no evidence corroborating A.F.’s story. But the
absence of corroborative evidence does not render a rape conviction against the
manifest weight of the evidence. See State v. Hruby, 8th Dist. Cuyahoga No. 81303,
2003-Ohio-746, ¶ 12. Given the fact that A.F. did not tell anyone about the assault
for three years, the lack of forensic or physical evidence is to be expected.
The evidence shows that A.F. was consistent with her disclosures to
her mother and police. Frazier points out one inconsistency in A.F.’s testimony,
where A.F. told her mother via text message that she did not tell Frazier “no” as he
was assaulting her, but testified that she did, in fact, tell Frazier “no.” The state
addressed this inconsistency during A.F.’s testimony. A.F. explained:
Prosecutor: In those text messages [to your mother] you said you
didn’t say no, but you did say no, you just testified to that. Can you
kind of explain that?
A.F.: I said no, but it didn’t mean anything obviously. And I told her
that I said no ─ I didn’t say no because he wouldn’t care.
Frazier further contends that A.F. lied about “abusing” ibuprofen.
But A.F. testified that she told her mother that she was taking ibuprofen as a way to
explain her behavior so she did not have to tell her mother that her behavior was a
result of the assault and keeping the assault a secret.
The jury was in the best position to judge witness credibility,
including whether to believe A.F.’s testimony, and weigh all evidence. We do not
find that this is the rare case where the convictions are against the manifest weight
of the evidence.
The second assignment of error is overruled.
The Trial Court did not Commit Plain Error
In the third assignment of error, Frazier contends that the trial court
committed plain error in instructing the jury on the use of force.
The court instructed the jury as follows:
The force of a parent or other authority figure.
When the relationship between the victim and the Defendant is one of
a child, and in this case an uncle, the element of force need not be
openly displayed or physically brutal. It can be subtle, slight, and
psychological or emotionally powerful. Evidence of an express threat
of harm or evidence of significant physical restraint is not required. If
you find beyond a reasonable doubt that under the circumstances in
evidence the victim’s will was overcome by fear or duress or
intimidation, the element of force has been proved.
Frazier did not object to the jury instruction; therefore, he has waived
all but plain error:
On appeal, a party may not assign as error the giving or the failure to
give any instructions unless the party objects before the jury retires to
consider its verdict, stating specifically the matter objected to and the
grounds of the objection. Crim.R. 30(A). If a defendant fails to object
to the court’s giving of an instruction or failure to give an instruction,
he or she forfeits all but plain error on appeal.
State v. Kudla, 9th Dist. Summit No. 27652, 2016-Ohio-5215, ¶ 7.
In this case, we find that the instruction was not in error. Frazier was
charged with one count of rape relating to forced fellatio. As we previously found,
A.F.’s testimony that Frazier pushed her head down with his hands until she got on
her knees was sufficient to show force.
With regard to the other rape and attempted rape convictions, the
instruction was also not in error. We recognize that this court has rejected a per se
rule that “force” under R.C. 2907.02(A)(2) is demonstrated whenever sexual
assaults are committed by an older relative. In re T.W., 2018-Ohio-3275, 112 N.E.3d
527, ¶ 21 (8th Dist.). Instead, “[t]here must be some evidence, for instance, that the
offender has inherent power through his position of authority over the victim, or
that the force used was subtle and psychological stemming from the filial-like
relationship.” Id. at ¶ 21.
Frazier is A.F.’s uncle. He was 36 at the time of the assault. A.F. had
just turned 13 years old. A.F. testified that she did what Frazier told her to do
because he was bigger than her. Thus, A.F. was forced to submit to the authority of
her 36 year old uncle. In addition, Frazier told A.F. to keep the assault a secret,
which she did for three years. See Eskridge, 38 Ohio St.3d at 59, 526 N.E.2d 304,
citing Fowler, 27 Ohio App.3d 149, 500 N.E. 2d 390 (in both cases, the court
considered that the defendant-relative told child victim not to disclose the abuse).
The state established force from the “filial-like relationship” through testimony that
(1) Frazier was A.F.’s uncle; (2) Frazier was 36 years old at the time of the assault,
20 years older than A.F.; (3) A.F. had just turned 13 years old; (4) Frazier told A.F.
that he was going to take her to a store but instead took her to a house where he
assaulted her; (5) A.F. did not feel free to leave; (6) Frazier told A.F. not to tell
anyone about the incident; and (7) A.F. did not disclose the assault for three years.
In light of the above, the third assignment of error is overruled.
Frazier Received Effective Assistance of Trial Counsel
In the fourth assignment of error, Frazier claims that he received
ineffective assistance of counsel because counsel failed to object to the court’s jury
instruction on force.
The standard of review for ineffective assistance of counsel requires a
two-part test as set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984). “The defendant must show that counsel’s representation fell
below an objective standard of reasonableness.” Id. at 687-688. The defendant
must also prove that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. at 694.
Applying this standard to Frazier’s contention that his trial counsel
was ineffective in failing to object to the jury instruction on force, we conclude that
our disposition of the third assignment of error renders this claim moot.
The fourth assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending 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.
LARRY A. JONES, SR., JUDGE
SEAN C. GALLAGHER, P.J., and
EILEEN A. GALLAGHER, J., CONCUR