State v. Victor

[Cite as State v. Victor, 2022-Ohio-4159.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY
STATE OF OHIO, CASE NO. 2021-A-0046
Plaintiff-Appellee,
Criminal Appeal from the
- vs - Court of Common Pleas
PHILLIP JAMES VICTOR,
Trial Court No. 2020 CR 00648
Defendant-Appellant.
OPINION
Decided: November 21, 2022
Judgment: Affirmed
Colleen M. O’Toole, Ashtabula County Prosecutor, and Jessica Fross, Assistant
Prosecutor, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-Appellee).
Edward M. Heindel, 2200 Terminal Tower, 50 Public Square, Cleveland, OH 44113 (For
Defendant-Appellant).
MATT LYNCH, J.
{¶1} Defendant-appellant, Phillip James Victor, appeals from his convictions and
sentence for Rape and Gross Sexual Imposition in the Ashtabula County Court of
Common Pleas. For the following reasons, we affirm the judgment of the lower court.
{¶2} On December 28, 2020, the Ashtabula County Grand Jury issued an
Indictment, charging Victor with one count of Rape, a felony of the first degree, in violation
of R.C. 2907.02(A)(1)(b); and three counts of Gross Sexual Imposition, felonies of the
third degree, in violation of R.C. 2907.05(A)(4).
{¶3} A jury trial was held on November 2 and 3, 2021. The following pertinent
testimony was presented:
{¶4} H.K., who was 17 at the time of her testimony and born in April 2004,
testified that Victor had been her mother’s boyfriend and watched H.K. at his residence
while her mother was at work in 2012 to 2013. At that time, when she was around the
ages of eight and nine, she alleged that Victor sexually abused her. While the two were
laying on Victor’s bed and watching movies, he would pull down her pants and lick her
vaginal area. Victor used both his tongue and fingers to touch that area. During this time,
he did not touch himself or remove his clothes. H.K. testified that this happened “quite
often” and “probably right around” ten times while she was eight to nine years old. She
described it as occurring in the evening before her mother would come to pick her up and
that these incidents took place around October 2012.
{¶5} H.K. testified as to one instance, “probably in 2013” where “it was like what
usually happens” but he then pulled down his pants and had intercourse with her. She
believed it happened sometime a little bit after her ninth birthday. After this occurred, they
did not talk and were silent while watching a movie.
{¶6} After the instances of sexual abuse, H.K. no longer wanted to spend time
with Victor. Her mother and Victor later broke up. H.K. began to experience anxiety and
nightmares as well as difficulty sleeping. She was scared to tell anyone what had
occurred because she did not know what would happen and was afraid she would get in
trouble. Several years later, in the summer of 2020, while with her mother and a friend,
her mother inquired whether she was a virgin. H.K. stated no, and told her mother what
happened with Victor. She then told her dad and the police.
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{¶7} Heather Stearns, H.K.’s mother, testified that she began dating Victor in
2011 and they were in a relationship for about two years. H.K. would stay with Victor on
days when Stearns was working. They ended their relationship in 2013 because they
fought too much. Stearns testified that, around that period of time, H.K. was experiencing
physical health problems that were attributed to anxiety and was placed in counseling.
Stearns provided testimony similar to H.K.’s regarding the circumstances under which the
abuse was disclosed, wherein they were discussing virginity and H.K. stated “your ex took
that from me.” H.K. disclosed the incident to police about a week and a half later when
an officer H.K. was comfortable with was available. Stearns testified that while she was
dating Victor, H.K. was always excited to see him and liked spending time with him.
{¶8} Michelle Flick, a coordinator and forensic interviewer for the Ashtabula Area
Child Advocacy Center, interviewed H.K. in September 2020, during which time H.K.
disclosed sexual abuse by Victor. Flick testified that it was not unusual for children to
disclose abuse several years after the fact.
{¶9} The jury found Victor guilty of one count of Rape and three counts of Gross
Sexual Imposition as charged in the indictment. A sentencing hearing was held on
December 13, 2021. The parties stipulated that one count of Gross Sexual Imposition
merged into the Rape count. The court sentenced Victor to serve 15 years to life for the
Rape conviction and five years for each count of Gross Sexual Imposition, all to be served
consecutively for a total term of 25 years to life in prison.
{¶10} Victor timely appeals and raises the following assignments of error:
{¶11} “[1.] The convictions were not supported by sufficient evidence.
{¶12} “[2.] The convictions for rape and gross sexual imposition were against the
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manifest weight of the evidence.
{¶13} “[3.] The trial court erred when it did not find that the rape and gross sexual
imposition charges are all allied offenses; or that the two gross sexual imposition charges
are allied offenses.
{¶14} “[4.] The findings that were made to impose consecutive sentences were
not supported in the record.”
{¶15} We will address Victor’s first two assignments of error jointly, as they relate
to the weight and sufficiency of the evidence.
{¶16} “‘[S]ufficiency’ 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.” State v. Thompkins, 78 Ohio St.
3d 380, 386, 678 N.E.2d 541 (1997), quoting Black’s Law Dictionary (6 Ed.1990), 1433.
In reviewing the sufficiency of the evidence, “[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. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the
syllabus.
{¶17} Whereas “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. “[A]
reviewing court asks whose evidence is more persuasive—the state’s or the
defendant’s?” Id. An appellate court must consider all the evidence in the record, the
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reasonable inferences, the credibility of the witnesses, and 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.” (Citation
omitted.) Thompkins at 387. “Since there must be sufficient evidence to take a case to
the jury, it follows that ‘a finding that a conviction is supported by the weight of the
evidence necessarily must include a finding of sufficiency.’” (Citation omitted.) State v.
Arcaro, 11th Dist. Ashtabula No. 2012-A-0028, 2013-Ohio-1842, ¶ 32.
{¶18} To convict Victor of Rape, the State was required to prove, beyond a
reasonable doubt, that he did “engage in sexual conduct with another who is not the
spouse of the offender * * *, when * * * [t]he other person is less than thirteen years of
age * * *.” R.C. 2907.02(A)(1)(b). To convict him of Gross Sexual Imposition, the State
was required to prove he had “sexual contact with another, * * * when * * * [t]he other
person * * * is less than thirteen years of age * * *.” R.C. 2907.05(A)(4).
{¶19} In his first assignment of error, Victor raises various arguments supporting
his contention that the elements of the charges for which he was convicted were not
proven beyond a reasonable doubt. First, he argues that the separate convictions for
Gross Sexual Imposition were improper because the victim did not testify as to multiple
distinct instances of sexual contact or identify the dates on which the contact occurred.
{¶20} While H.K. did testify as to the Gross Sexual Imposition in a blanket manner
by giving general testimony about the Victor’s conduct and stating that it occurred on
several occasions, her testimony was clear that this conduct did occur more than once.
Her testimony regarding his actions demonstrated that Victor had sexual contact with her
on multiple occasions, up to ten times, when she was less than thirteen years old.
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Whether the level of detail provided by her testimony satisfied the trier of fact as to the
credibility of her allegations is not an issue of sufficiency. State v. Yarbrough, 95 Ohio
St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 79 (an evaluation of a witness’ credibility,
“is not proper on review for evidentiary sufficiency”).
{¶21} Further, the lack of specificity as to the dates on which this conduct occurred
does not warrant a finding of insufficiency. This court has repeatedly observed, in the
context of motions to dismiss an indictment, that the “precise date and time of an alleged
offense in an indictment are immaterial to the essential elements of an offense; therefore,
the failure to provide an exact date and time will not by itself warrant dismissal of a
charge.” (Citation omitted.) In re N.Z., 11th Dist. Lake Nos. 2010-L-023, et al., 2011-
Ohio-6845, ¶ 53 (“the specific date of sexual conduct is not an element of rape”); Matter
of J.D., 11th Dist. Lake No. 2021-L-126, 2022-Ohio-2334, ¶ 25 (“[o]rdinarily, precise times
and dates are not essential elements of offenses”) (citation omitted). “[I]n cases involving
alleged sexual misconduct with young children, this court and other courts have held that
it is not mandatory for the state to provide precise dates and times because young
children are usually unable to remember such specific information and such incidents
usually take place over an extended span of time.” State v. LaTorres, 11th Dist. Ashtabula
Nos. 2000-A-0060 and 2000-A-0062, 2001 WL 901045, *4 (Aug. 10, 2001). “[I]f the
evidence supports a finding that the defendant was alone with the victim during the
relevant time frame and the defense is that the sexual abuse never occurred,” rather than
an alibi defense, “the inability to identify a specific date does not require reversal of a
conviction.” Id.{¶22} Challenges to the sufficiency of the evidence have been rejected in similar
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circumstances to those present here. In State v. Miller, 5th Dist. Licking No.
2006CA00030, 2006-Ohio-6236, ¶ 23, the court rejected a challenge to the sufficiency of
the evidence for a Rape charge; since time was not an essential element, “it was sufficient
for the State to prove the offense occurred on a date reasonably near the date claimed.”
Also State v. Scott, 2020-Ohio-3230, 155 N.E.3d 56, ¶ 40-46 (12th Dist.) (rejecting the
defendant’s sufficiency challenge since the precise date the Gross Sexual Imposition
occurred was not necessary to prove the elements of the offense nor was his defense
prejudiced by uncertainty on the date it occurred).
{¶23} Here, the indictment set forth a timeframe for each offense, throughout 2012
to 2013. H.K. was consistently alone with Victor on various dates during those
timeframes. While she did not recall the exact dates, her testimony demonstrated the
age she was during the offenses, which is a key issue in this type of case, and the exact
dates were not necessary since Victor did not attempt to mount an alibi defense. LaTorres
at *4.
{¶24} Victor also argues that no testimony was presented regarding arousal or
gratification and no evidence that he reacted in a manner consistent with arousal.
{¶25} To prove the sexual conduct element of Gross Sexual Imposition, it is
necessary to demonstrate that the touching of the victim occurred “for the purpose of
sexually arousing or gratifying either person.” R.C. 2907.01(B).
{¶26} “A sexual purpose can be inferred from the nature of the act itself if a
reasonable person would find that act sexually stimulating to either the offender or the
victim.” (Citation omitted.) State v. Bussle, 11th Dist. Portage No. 2016-P-0026, 2017-
Ohio-4045, ¶ 36. “The relevant inquiry is would an ordinary prudent person or a
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reasonable person sitting as a juror perceive from the defendant’s actions, and all of the
surrounding facts and circumstances, that the defendant’s purpose or specific intention
was arousal or gratification of sexual desire?” (Citation omitted.) (Emphasis sic.) Id.{¶27} Regardless of whether Victor showed outward signs of being sexually
aroused, a reasonable person would conclude that his purpose or intent was arousal or
sexual gratification, either for himself or the victim. He touched the victim, a young child,
who was alone with him while lying in bed, on several occasions, subsequently
culminating this pattern of sexual abuse by committing an act of sexual intercourse with
her. A finding that sexual gratification occurred is not supported by insufficient evidence
in these circumstances. See State v. Breland, 11th Dist. Ashtabula No. 2003-A-0066,
2004-Ohio-7238, ¶ 26 (“reasonable jurors could infer that appellant’s placing of his hand
underneath the victim’s underwear and inside her, as well as feeling her private area, was
sexually stimulating”).
{¶28} As to the Rape, Victor argues that there were no corroborating witnesses,
medical records or evidence other than H.K.’s testimony, observing that the allegations
were made nine years after the incidents and her statements could have been the result
of pressure from loved ones and interview techniques.
{¶29} This court has explained that physical and medical evidence are not
necessary to support a guilty verdict for Rape or Gross Sexual Imposition and that the
“sole testimony of the victim can support a conviction.” State v. Waskelis, 11th Dist.
Portage No. 2011-P-0035, 2012-Ohio-3030, ¶ 46; N.Z., 2011-Ohio-6845, at ¶ 81-85.
H.K.’s testimony established the elements necessary to support the convictions beyond
a reasonable doubt. Issues relating to the credibility of her testimony were for the jury to
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determine. Waskelis at ¶ 44.
{¶30} While Victor argues that there were reasons H.K. may have lied, such as
pressure or use of certain interview techniques, there is nothing in the record to support
a conclusion that she was improperly pressured or coerced to make statements that were
untruthful. Further, while he emphasizes that the disclosure occurred nine years after the
sexual assault, “[d]elayed disclosure of the incidents does not equate to insufficient
evidence as to that charge but rather goes to the credibility of the witnesses and the
manifest weight of the evidence.” State v. Mugrage, 11th Dist. Portage No. 2020-P-0066,
2021-Ohio-4136, ¶ 6.
{¶31} In his second assignment of error, Victor similarly argues the convictions
are against the weight of the evidence due to concerns with H.K.’s testimony, alleging
that they were “fabricated somehow in her mind.” He contends that the allegations are
“suspect” in that they were made only after her mother’s relationship with Victor ended
and were disclosed by “blurting [them] out in front of others.”
{¶32} The issues raised here primarily relate to the credibility of H.K., an issue for
the trier of fact as discussed above. Her testimony was consistent with the disclosures
she made regarding the abuse. The testimony was consistent with the time and
circumstances under which Victor had watched her while her mother was working.
Nothing specific in the record shows her testimony was “fabricated.” Further, as to the
delayed disclosure, which H.K. described arose due to her fear of what might occur if she
disclosed, “it is within the province of the jury to parse out the credible portions of [the
victim’s] testimony, principally as it pertained to her ability to recall certain events and her
delayed disclosure from what is not credible.” State v. Chute, 3d Dist. Union No. 14-22-
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02, 2022-Ohio-2722, ¶ 32.
{¶33} Victor observes that H.K. only disclosed the abuse after her mother’s
relationship with him ended and “clearly, there was animosity there.” However, the abuse
was disclosed several years after the breakup and it is unclear what “animosity” is
referenced. The relationship ended, according to H.K.’s mother, because the two were
fighting a lot but she did not indicate that it ended in a manner that would cause animosity,
particularly on H.K.’s behalf. It is unclear why a relationship ending in 2013 would lead
H.K. to falsely disclose abuse in 2020. The only “animosity” present in the record,
according to H.K.’s testimony, arose due to Victor’s abuse of her, not a breakup that
occurred seven years prior.
{¶34} The first and second assignments of error are without merit.
{¶35} In his third assignment of error, Victor argues that the charges for Rape and
Gross Sexual Imposition should have merged and, alternatively, the Gross Sexual
Imposition charges should have merged with each other. He argues that the Rape and
Gross Sexual Imposition were “simultaneous acts” as H.K. made one specific allegation
about Rape and “some very vague allegations about gross sexual imposition.” He argues
that the Gross Sexual Imposition charges cannot be separated into distinct acts because
each incident described by H.K. “is not particularly detailed” and the dates and
circumstances were vague.
{¶36} R.C. 2941.25 governs the imposition of punishment for multiple offenses:
(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the indictment or
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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 kind 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.
{¶37} “Under R.C. 2941.25(B), a defendant whose conduct supports multiple
offenses may be convicted of all the offenses if any of the following is true: (1) the conduct
constitutes offenses of dissimilar import, (2) the conduct shows that the offenses were
committed separately, or (3) the conduct shows that the offenses were committed with
separate animus.” State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892,
paragraph three of the syllabus.
{¶38} “[G]ross sexual imposition and rape may, depending on the circumstances,
be allied offenses of similar import. For instance, it is well-established that gross sexual
imposition is a lesser included offense of rape. * * * Accordingly, under R.C. 2941.25, a
defendant may generally not be convicted of and sentenced for both gross sexual
imposition and rape when they arise out of the same conduct.” State v. St. John, 11th
Dist. Lake No. 2015-L-133, 2017-Ohio-4043, ¶ 18, citing State v. Hay, 3d Dist. Union No.
14-2000-24, 2000 WL 1852725, *3 (Dec. 19, 2000).
{¶39} As an initial matter, even to the extent that it could be argued that the Rape
offense occurred during an act of Gross Sexual Imposition on a single day (H.K. indicated
that the rape occurred after the acts he “usually” performed) and it may be unclear to what
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extent they included separate acts, the court merged the Rape conviction with one count
of Gross Sexual Imposition, removing such concern.
{¶40} As to the remaining counts of Gross Sexual Imposition, they resulted from
multiple incidents/acts of touching the victim and occurred on separate days, a fact
demonstrated by the separate time periods in the indictment and the corresponding
testimony regarding the Gross Sexual Imposition occurring multiple times. As such, they
would not merge with each other or with the Rape conviction since they were committed
separately. See J.D., 2022-Ohio-2334, at ¶ 49 (where the victim’s testimony indicated
that the defendant conducted sexual acts “every night,” supporting separate instances of
Rape and Gross Sexual Imposition, the offenses did not merge). The fact that the
testimony was not “particularly detailed” does not mean the offenses should merge where
it was demonstrated there were separate occurrences.
{¶41} The third assignment of error is without merit.
{¶42} In his fourth assignment of error, Victor argues that the consecutive
sentencing findings were not supported by the record given his lack of a sexual abuse
related criminal history or statements by the victim indicating she suffered great harm.
{¶43} “The court hearing an appeal [of a felony sentence] shall review the record,
including the findings underlying the sentence or modification given by the sentencing
court.” R.C. 2953.08(G)(2). With respect to consecutive sentences, a reviewing court
may vacate the sentence and remand for resentencing “if it clearly and convincingly finds
* * * [t]hat the record does not support the sentencing court’s findings under division * * *
(C)(4) of section 2929.14.” Id. Under R.C. 2929.14(C)(4), a sentencing court is required
to find that consecutive sentences are “necessary to protect the public from future crime
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or to punish the offender”; “not disproportionate to the seriousness of the offender’s
conduct and to the danger the offender poses to the public”; and that one of the
circumstances described in subdivision (a) to (c) is present. Relevant to the present
matter, subdivisions (b) and (c) require findings that “[a]t least two of the multiple offenses
were committed as part of one or more courses of conduct” which caused harm so great
a single prison term would not reflect the seriousness of the conduct; and “[t]he offender’s
history of criminal conduct demonstrates that consecutive sentences are necessary to
protect the public from future crime by the offender.” To impose consecutive terms, the
court “is required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing
hearing and incorporate its findings into its sentencing entry, but it has no obligation to
state reasons to support its findings.” State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-
3177, 16 N.E.3d 659, ¶ 37.
{¶44} Here, the court made each of the required findings for ordering consecutive
sentences enumerated above, including findings under both subdivisions (b) and (c).
Victor does not dispute that the court made the required findings but argues that they are
not supported by the record. See Id. at ¶ 29 (“as long as the reviewing court can * * *
determine that the record contains evidence to support the findings, consecutive
sentences should be upheld”).
{¶45} Victor argues that the finding regarding “great or unusual” harm is
unsupported because “H.K. did not testify about any long-term effects of Victor’s actions,”
was not physically injured, has not been “so emotionally harmed that she just can’t
continue with life,” and the record did not demonstrate “nightmares, an inability to sleep
or work, or engage in any normal trusting relationships.”
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{¶46} Contrary to Victor’s argument, H.K. specifically testified that she had
difficulty sleeping and nightmares after the time period when the abuse occurred. She
testified regarding anxiety and her mother corroborated that she had physical health
problems attributed to anxiety and sought counseling and medication. The fact that H.K.
is able to “continue with life” does not negate any suffering she experienced. From these
facts, the court could determine that the abuse had a significant impact on her life and did
not err in making this consecutive sentencing finding. This finding alone is sufficient to
support the consecutive sentence, since “the plain language of the statute requires that
only one of these three elements [R.C. 2929.14(C)(4)(a) through (c)] need be found,
which is evident from the statute’s use of the word ‘any.’” State v. Wauer, 11th Dist.
Trumbull No. 2016-T-0043, 2017-Ohio-1337, ¶ 27.
{¶47} Nonetheless, the lower court also made the finding that Victor’s history of
criminal offenses warrants consecutive sentences to protect the public. Victor argues that
his prior offenses were not sex crimes but it is not required that all offenses be of the
same character to find a danger to the public. His multiple felony offenses, including the
present sexual assault of a child over an extended period of time, supported the trial
court’s finding. We also find his argument that the consecutive sentences were an
“overreaction,” supported by his observation that the rape was not “forceful,” to be
unconvincing. Victor was convicted of committing the Rape and Gross Sexual Imposition
of an eight- and nine-year-old victim, resulting in what she described as psychological
harm.
{¶48} The fourth assignment of error is without merit.
{¶49} For the foregoing reasons, Victor’s convictions and sentence for Rape and
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Gross Sexual Imposition in the Ashtabula County Court of Common Pleas are affirmed.
Costs to be taxed against appellant.
MARY JANE TRAPP, J.,
JOHN J. EKLUND, J.,
concur.
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