State v. Kirk

[Cite as State v. Kirk, 2019-Ohio-4890.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 108136
v. :
LACEY KIRK, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: November 27, 2019
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-15-598476-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Kerry A. Sowul, Assistant Prosecuting
Attorney, for appellee.
Edward M. Heindel, for appellant.
SEAN C. GALLAGHER, P.J.:
Lacey Kirk appeals his convictions for corruption of a minor,
stemming from an incident occurring in 2000, and for rape and kidnapping, which
took place in 2004. The trial court sentenced Kirk to an aggregate term of
imprisonment of 27 years and 6 months, which included consecutive service of the
underlying sentences and the sentences imposed on two attendant firearm
specifications. For the following reasons, we affirm.
2000 Incident
The victim was 13 years old during the events leading to the
corruption of a minor conviction. According to the victim’s stepfather, the victim
looked like an average 13-year-old child at the time of the crime and, thus, appeared
her age. Kirk, then approximately 30 years old, picked up the victim across the street
from a middle school, while the victim was on her way to have breakfast with a friend
before school began. Kirk took the victim to a hotel room where he proceeded to
have sexual intercourse with her while he was in possession of a knife and a firearm.
The victim was in the hotel room for two days. When she left the hotel room, the
police were immediately notified and the DNA evidence implicating Kirk was
preserved. The jury acquitted Kirk of the rape and kidnapping charges stemming
from the 2000 incident, but found Kirk guilty of corruption of a minor under R.C.
2907.04(A), which provides that no person, who is at least 18 years old, shall engage
in sexual conduct with another person that is between 13 and 16 years old if the
offender knows the victim’s age, or is reckless in that regard.
2004 Incident
The second victim, then an 18-year-old university student, was
walking to a store one day near her house to get medication for a migraine. The
victim was approached by Kirk and offered a ride to get breakfast. The victim got
into Kirk’s car believing that Kirk was taking her to a restaurant, but he drove to a
nearby park instead of a restaurant. Kirk proceeded to rape the victim at gunpoint.
After the rape, Kirk offered the victim money. The victim described that act as an
attempted bribe. After the victim was released, she immediately reported the crime.
The DNA evidence implicating Kirk was preserved. The jury found Kirk guilty of
rape and kidnapping, including attendant firearm specifications.
Evid.R. 404(B) Evidence
During the joint trial, the state also introduced evidence, over Kirk’s
objection, of a third rape for which Kirk was convicted in 2006. See generally State
v. Kirk, 8th Dist. Cuyahoga No. 86895, 2006-Ohio-3691. In that case, Kirk picked
up a 16-year-old victim on her way to school. The victim was induced into the car
by one of her friends, who was dropped off along the way. Kirk drove the victim to
her house for a change of clothes and claimed he would take her to the mall. Instead,
Kirk drove the victim elsewhere and raped her in the back seat of the car at gunpoint.
The victim fled when Kirk became distracted by a noise. Kirk was on parole from
this conviction at the time he was arrested in connection with the 2000 and 2004
crimes, and was then serving a 120-day term of imprisonment for a parole violation,
which would have expired sometime in December 2015.
Before the trial commenced, Kirk filed a motion to dismiss based on
preindictment delay. The trial court initially granted the motion with respect to the
2004 incident. The state filed its interlocutory appeal as a matter of right claiming
the trial court applied the incorrect standard. State v. Kirk, 8th Dist. Cuyahoga No.
104866, 2016-Ohio-8296, ¶ 1. Kirk conceded the error, and the case was remanded
for the purposes of conducting a hearing under the appropriate standard of review.
The renewed motion was ultimately denied.
In the first assignment of error, Kirk claims the trial court erred in
denying his renewed motion to dismiss. According to Kirk, with respect to the 2000
incident, “there was a lack of physical evidence and/or pictures that were no longer
available” and with respect to the 2004 incident, “there was missing evidence that
was connected with the case, including the possibility of phone records that
otherwise could have generated, video-taped information that could have been
drawn, that could have actually challenged or contradicted [the victim’s] rendition
of the story.” (Emphasis added.) Kirk has not specifically identified any evidence
that he is unable to obtain or which pictures would have aided the defense. His sole
contention is that there could be evidence that is no longer available in light of the
age of the case.
Under the burden-shifting framework for analyzing a due-process
claim based on preindictment delay, a defendant is required to present evidence of
actual prejudice before the burden shifts to the state to produce evidence of a
justifiable reason for the delay. State v. Jones, 148 Ohio St. 3d 167, 2016-Ohio-5105,
69 N.E.3d 688 ¶ 13, citing State v. Whiting, 84 Ohio St. 3d 215, 217, 1998-Ohio-575,
702 N.E.2d 1199. The determination of actual prejudice turns on a case-by-case
review of the particular facts and circumstances. Id., citing State v. Walls, 96 Ohio
St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829, ¶ 52, and United States v. Marion, 404
U.S. 307, 325, 92 S. Ct. 455, 30 L. Ed. 2d 468. “Actual prejudice exists when missing
evidence or unavailable testimony, identified by the defendant and relevant to the
defense, would minimize or eliminate the impact of the state’s evidence and bolster
the defense.” Id., citing State v. Luck, 15 Ohio St. 3d 150, 157-158, 472 N.E.2d 1097
(1984).
Kirk has not demonstrated prejudice. His claims of the possibility of
lost evidence that could have aided his defense are vague and, at best, speculative.
He has not presented any argument that identifies any evidence that was available
before the prolonged delay caused its unavailability. In order to demonstrate actual
prejudice, at the least the defendant must identify the missing evidence or
unavailable testimony. He cannot rely on vague assertions of the possibility of being
able to obtain evidence if the case was prosecuted in a timelier manner. See Jones.
The limited arguments presented in this appeal cannot form the basis of a
conclusion that the trial court erred in denying the motion to dismiss. App.R.
16(A)(7). The first assignment of error is overruled.
In the second assignment of error, Kirk claims the trial court erred by
denying a motion for separate trials of the 2000 and 2004 crimes. According to
Kirk, the evidence of the two rape claims from 2000 and 2004 was not simple and
direct.
Crim.R. 8(A) provides that “two or more offenses may be charged in
the same indictment” if the offenses “are of the same or similar character, or are
based on the same act or transaction, or are based on two or more acts or
transactions connected together or constituting parts of a common scheme or plan,
or are part of a course of criminal conduct.” Joinder is generally permitted to
“conserve judicial resources, reduce the chance of incongruous results in successive
trials, and diminish inconvenience to the witnesses.” State v. Schaim, 65 Ohio St. 3d
51, 58, 1992-Ohio-31, 600 N.E.2d 661, citing State v. Torres, 66 Ohio St. 2d 340, 343,
421 N.E.2d 1288 (1981). If offenses are properly joined under Crim.R. 8(A), the
charges may be severed under Crim.R. 14 if the joinder will prejudice the moving
party’s rights. Id. In order to demonstrate prejudice, a defendant must affirmatively
show that the evidence of the other crimes would not be admissible in the other trial
if the counts were severed, and if the evidence would not be separately admitted,
that the evidence of each crime is not simple and direct. Schaim at ¶ 42.
Kirk’s sole claim with respect to the joinder issue is that the “jury was
presented with three separate rape allegations, including the 404(B) evidence [and
the jury] could not be expected to rationally judge each case separately without
making improper inferences about Kirk’s character.”
The jury, to the contrary, acquitted Kirk of the rape and kidnapping
charges stemming from the 2000 incident and solely convicted Kirk for corruption
of a minor based on the undisputed evidence that Kirk, who was then approximately
30 years old, had sexual relations with a 13-year-old victim who appeared to be of
that age. The actual results of the trial demonstrate that Kirk was not prejudiced by
the joinder. The best outcome Kirk could have achieved with respect to the 2000
incident was a conviction for the corruption of a minor in light of the fact that the
DNA evidence demonstrated that he had sexual intercourse with the victim, who
was described as an average looking 13-year-old child at the time of the crime. The
jury’s verdict demonstrates its capability of separating the evidence from the
different events. The second assignment of error is overruled.
This conclusion also resolves the fourth assignment of error, in which
Kirk argues that the allegedly improper admission of his conviction for rape as
admitted under Evid.R. 404(B) prejudiced Kirk’s right to a fair trial because the jury
could not be expected to separate all three events and acquit Kirk of any of the
charges.
In determining whether to grant a new trial as a result of the
erroneous admission of evidence under Evid.R. 404(B), appellate courts consider
both the impact of the offending evidence on the verdict and the strength of the
remaining evidence after the tainted evidence is removed from the record. State v.
Tate, 8th Dist. Cuyahoga No. 102474, 2015-Ohio-4496, ¶ 23. “‘[A]n improper
evidentiary admission under Evid.R. 404(B) may be deemed harmless error on
review when, after the tainted evidence is removed, the remaining evidence is
overwhelming.’” Id., quoting State v. Morris, 141 Ohio St. 3d 399, 2014-Ohio-5052,
24 N.E.3d 1153, ¶ 32. In this case, not only was the jury demonstrably capable of
limiting its use of the evidence, as demonstrated by the acquittal it returned on the
rape and kidnapping charges stemming from the 2000 incident, but the evidence
presented in favor of the 2004 crimes was overwhelming. Id., quoting Morris at
¶ 33.
In this case, there is no dispute that Kirk had sexual contact with the
victim during the 2004 incident; the only question was one of consent based on
Kirk’s argument that the sexual intercourse was a sex-for-hire situation. On this
point, the victim testified that she was raped at gunpoint after Kirk lured her into
his vehicle under false pretenses. The victim discussed being offered money after
the crime occurred, but framed that offer as a bribe on Kirk’s part to buy her silence.
Further, the victim reported the rape immediately upon being released and the DNA
evidence implicating Kirk was preserved. Kirk did not offer any evidence to
contradict the victim’s trial testimony, nor did he establish any credible basis to
discredit that testimony. Regardless of whether the evidence of the rape conviction
was properly admitted under Evid.R. 404(B), the jury demonstrated its ability to
segregate the evidence as it related to the other crimes, and the evidence in favor of
the conviction based on the 2004 crime was overwhelming. As a result, even if we
considered and recognized error with respect to the Evid.R. 404(B) issue for the sake
of discussion, any such error would be harmless. The fourth assignment of error is
overruled.
In the third assignment of error, Kirk claims his statutory right to a
speedy trial was violated because he was arrested on September 9, 2015, and trial
commenced on October 15, 2018 — 1,132 days from arrest to trial.
Under R.C. 2945.71(C)(2), the state must bring a defendant to trial on
felony charges within 270 days of his arrest. State v. Geraci, 8th Dist. Cuyahoga
Nos. 101946 and 101947, 2015-Ohio-2699, ¶ 19. Each day a defendant is held in jail
in lieu of bail counts as three days for purposes of calculating speedy trial time. Id.
“The running of the speedy-trial clock may be temporarily stopped, that is, tolled,
only for reasons listed in R.C. 2945.72. Upon review of a speedy-trial issue, a court
is required to count the days of delay chargeable to either side and determine
whether the case was tried within applicable time limits.” State v. Sanchez, 110 Ohio
St.3d 274, 2006-Ohio-4478, 853 N.E.2d 283, ¶ 8. Continuances at the defendant’s
request, and any reasonable period to allow the state an opportunity to respond and
the court an opportunity to rule on any defense motion, toll the statutory time. Id.
at ¶ 26-27.
There are two important considerations that cannot be overlooked.
The setting of a trial date at the defendant’s request does not, in and of itself, toll the
speedy-trial clock. State v. Michailides, 2018-Ohio-2399, 114 N.E.3d 382, ¶ 31-35
(8th Dist.). Further, there are no “hard-line” rules that dictate the resolution of
speedy-trial calculations. Any announcement of so-called “hard-line” rules “merely
serve as guideposts for a court’s analysis.” State v. Martin, 156 Ohio St. 3d 503,
2019-Ohio-2010, 129 N.E.3d 437, ¶ 25. “When the facts and circumstances of the
case show that the underlying source of the delay was attributable to the defendant,”
those delays must be so attributed. Id., citing State v. Bauer, 61 Ohio St. 2d 83, 84,
399 N.E.2d 555 (1980).
In the initial briefing, neither party expounded on the discussion nor
provided any indication whether Kirk was being held in conjunction with another
matter during the pendency of the underlying case. Accordingly, and in the light of
the constitutional implications of the arguments advanced, this court sought
supplemental briefing to permit the parties to clarify their respective positions in
advance of the oral argument.
In that briefing, Kirk claims to have been held in jail solely for the
underlying case for the purpose of the “triple-count” provision of R.C. 2945.71(D),
which provides that each day an offender is held in jail in lieu of bail on the pending
charge counts as three days for the 270-day, statutory limit. In response, the state
attempted to supplement the record with an unauthenticated correspondence from
Kirk’s parole officer, in which it is indicated that Kirk violated parole in May 2017
and an inactive hold was placed for the violation. The state’s motion is denied.
However, that fact was already in the appellate record and the state need not have
resorted to attempting to supplement the record. In the hearing that was conducted
on the record in October 2018, the trial court was notified of the parole holder that
related back to the May 2017 parole violation. As a result, the triple-count provision
does not apply to Kirk after May 2017. State v. Burks, 8th Dist. Cuyahoga No.
106639, 2018-Ohio-4777, ¶ 27, citing State v. Glover, 8th Dist. Cuyahoga No. 89059,
2007-Ohio-5727, ¶ 3, and State v. Brown, 64 Ohio St. 3d 476, 479, 1992-Ohio-96,
597 N.E.2d 97.
Out of the 1,132 calendar days that transpired between his arrest and
trial, Kirk contends that only 431 days tolled during that time. At the other end of
the spectrum, the state contends that all but 11 days tolled. Neither party is correct.
Kirk ignored the continuances of the pretrials and trial dates that were at his request
and that are considered tolling events. See generally Martin, 156 Ohio St. 3d 503,
2019-Ohio-2010, 129 N.E.3d 437. The state, on the other hand, improperly tolled
the time periods from when a trial date was set at the defendant’s request and failed
to account for several time periods in which nothing in the record demonstrated a
tolling event. See generally Michailides, 2018-Ohio-2399, 114 N.E.3d 382 (8th
Dist.). “[B]ecause we are dealing with a fundamental right of the accused,” we will
briefly address the parties’ respective positions with full recognition that the
offender’s “interest in a speedy trial is specifically affirmed in the Constitution.”
Barker v. Wingo, 407 U.S. 514, 537, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). As such,
we cannot superficially overrule or sustain based on the arguments provided. We
must address the record as it exists.
Kirk was arrested on September 9, 2015, and filed a motion for
discovery on September 15 (6 days). Thereafter, based on several continuances at
his request, time tolled through the state’s interlocutory appeal that also tolled the
statutory time. R.C. 2945.72(H) and (I). Following the expiration of the parties’
appellate rights, nothing tolled the time between February 5, 2017, and Kirk’s
motion to continue the trial date filed on March 7, 2017 (90 days, triple counted).
Akron v. Downey, 24 Ohio App. 3d 225, 226, 495 N.E.2d 28 (9th Dist.1984) (speedy-
trial time tolls during the period for which an appeal may be filed with the Ohio
Supreme Court following an appellate decision). A pretrial was continued at the
defendant’s request until April 10, 2017, but that pretrial was not conducted until
April 13, 2017. There is no indication in the record as to the reason for the pretrial
not occurring, and accordingly those days are attributed to the state (6 days, triple
counted). State v. Johnson, 8th Dist. Cuyahoga No. 106532, 2019-Ohio-3178, ¶ 16.
After that time, Kirk was not in custody solely on the underlying charges; he was also
held on a parole-violation holder.
Between July 10 and July 19, 2017, October 17 and October 25, 2017,
and June 6 and June 11, 2018, the same thing occurred — a pretrial was set but not
conducted until sometime later (22 days in total within those dates). Id. On July 24,
2017, the trial was set at defendant’s request for August 14, 2017, which was the day
that Kirk renewed his motion to dismiss (21 days). Michailides. Time was tolled
until the trial court ruled on that motion on October 17, 2017. Another pretrial was
continued at Kirk’s request until November 2, 2017, and trial was set for December
5, 2017 (33 days). The trial date was converted into a pretrial, and time tolled for
Kirk’s continuance requests until January 22, 2018, when a new trial date was set.
On February 23, Kirk filed a motion that we will assume at the very least tolled the
time for 10 days for the state’s response and a brief period for the trial court to render
a decision. Sanchez, 110 Ohio St. 3d 274, 2006-Ohio-4478, 853 N.E.2d 283, at ¶ 8.
Nothing tolled the time otherwise until April 18, 2018, when Kirk sought to continue
a pretrial conference (75 days in total). Following the series of continuances at the
defendant’s request, the speedy-trial time ran again between July 17, 2018, when a
trial date was set, and July 23 when Kirk filed several motions in advance of the trial
date that required the state’s response and a reasonable period for the court’s ruling
(6 days). The August 21 trial date, at which time the July 23 motions ostensibly
could have been ruled upon, was continued at the defendant’s request until October
15, tolling the remaining time.
Accordingly, only 259 (6+90+6+22+21+33+75+6) of the 270
statutory speedy-trial days accumulated between September 2015 and October 2018
in light of the tolling events. Kirk’s statutory rights were not violated, and the third
assignment of error is overruled.
In the fifth assignment of error, Kirk claims the trial court erred when
it denied him the right to represent himself at trial. During a pretrial hearing
conducted on the record, Kirk asked to discharge his court-appointed attorney and,
in the alternative to seeking self-representation, asked for a continuance to allow
himself time to retain counsel of his choosing. After a lengthy dialogue, the trial
court permitted Kirk’s then-assigned counsel to withdraw and the court appointed
the public defender’s office to represent Kirk. Kirk never renewed his motion to
assert his right to self-representation.
A defendant’s “right to self-representation is rooted in the Sixth
Amendment to the United States Constitution, which provides the following: ‘[i]n
all criminal prosecutions, the accused shall * * * have the Assistance of Counsel for
his defense.’” State v. Obermiller, 147 Ohio St. 3d 175, 2016-Ohio-1594, 63 N.E.3d
93, ¶ 25. “The Ohio Constitution provides that ‘[i]n any trial, in any court, the party
accused shall be allowed to appear and defend in person and with counsel.’” Id.,
quoting Article I, Section 10, Ohio Constitution. A defendant ‘“may proceed to
defend himself without counsel when he voluntarily and knowingly and intelligently
elects to do so.’” Id. at ¶ 28, quoting State v. Gibson, 45 Ohio St. 2d 366, 345 N.E.2d
399 (1976), paragraph one of the syllabus. A trial court’s denial of the right to self-
representation is reversible error when the defendant properly invokes the
constitutional right. Id.
In order to be “proper,” however, the defendant must “unequivocally
and explicitly invoke” his right. Id. at ¶ 29. Courts must “indulge in every reasonable
presumption against waiver” of the right to counsel. Id., quoting Brewer v.
Williams, 430 U.S. 387, 404, 97 S. Ct. 1232, 51 L. Ed. 2d 424 (1977). And further, even
if an unequivocal and explicit request for self-representation is made, a defendant
may later abandon that request by acquiescing to counsel’s legal representation. Id.
at ¶ 31, citing State v. Cassano, 96 Ohio St. 3d 94, 2002-Ohio-3751, 772 N.E.2d 81, ¶
42, and McKaskle v. Wiggins, 465 U.S. 168, 182, 104 S. Ct. 944, 79 L. Ed. 2d 122
(1984).
In this case, Kirk’s initial request was equivocal, and the trial court
did not err by appointing another attorney in the attempt to provide Kirk with the
constitutionally mandated representation. Although Kirk initially sought to
discharge his court-appointed attorney and to proceed pro se, he did so based on his
intent to retain counsel of his choosing. This is not an express invocation of the right
to self-representation. Absent an express invocation, the constitutional right to self-
representation is waived. Id. Further, even if Kirk’s initial request was unequivocal,
Kirk acquiesced to the representation provided by the public defender throughout
the remainder of the trial proceedings. Nothing from this record indicates that Kirk
pursued an intention to represent himself beyond the abandoned request that came
before his second appointed attorney was granted leave to withdraw and the public
defender’s office was appointed to represent Kirk. See Cassano at ¶ 42. Kirk,
therefore, waived any right to self-representation in accepting the advice and
assistance of the subsequent attorney appointed to represent him. Id. The fifth
assignment of error is overruled.
In the sixth and seventh assignments of error, Kirk claims that his
convictions are against the weight of the evidence. Although Kirk framed the
seventh assigned error in terms of sufficiency of the evidence, the sole argument
advanced is expressly premised on the weight-of-the-evidence standard of review.
As he claimed in the appellate briefing, “[f]or the reasons set forth in the previous
assignment of error [(dealing with the weight of the evidence)] Kirk also claims that
the convictions were not supported by sufficient evidence.”
A claim that a jury verdict is against the weight of the evidence
involves a separate and distinct test that is much broader than the test for
sufficiency. State v. Drummond, 111 Ohio St. 3d 14, 2006-Ohio-5084, 854 N.E.2d
1038, ¶ 193. Kirk has not presented separate arguments in support of the claim that
the conviction is based on insufficient evidence. As a result, we will solely address
Kirk’s arguments under the weight-of-the-evidence standard as presented. App.R.
16(A)(7); Cassano, 8th Dist. Cuyahoga No. 97228, 2012-Ohio-4047, at ¶ 2.
When reviewing a claim challenging the manifest weight of the
evidence, the court, reviewing the entire record, must weigh the evidence and all
reasonable inferences, consider the credibility of the witnesses, and determine
whether, in resolving conflicts in the evidence, the trier of fact 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. Thompkins, 78 Ohio St. 3d 380, 387, 1997-
Ohio-52, 678 N.E.2d 541. In undergoing this review, appellate courts must “ask
whose evidence is more persuasive — the state’s or the defendant’s?” Id. This means
that
“The [reviewing] court * * * weighs the evidence and all reasonable
inferences, considers the credibility of witnesses and determines
whether in resolving conflicts in the evidence, the [finder of fact] clearly
lost its way and created such a manifest miscarriage of justice that the
[judgment] must be reversed and a new trial ordered.”
(Ellipsis and alterations sic.) Eastley v. Volkman, 132 Ohio St. 3d 328, 2012-Ohio-
2179, 972 N.E.2d 517, ¶ 20, quoting Tewarson v. Simon, 141 Ohio App. 3d 103, 115,
750 N.E.2d 176 (9th Dist.2001). Appellate courts sit as the thirteenth juror with the
ability to disagree with the factfinder’s resolution of the conflicting testimony.
Thompkins at 387, citing Tibbs v. Florida, 457 U.S. 31, 42, 102 S. Ct. 2211, 72 L. Ed. 2d
652 (1982). The appellate court does not defer to the trier of fact. See id.
Nevertheless, “[t]he discretionary power to grant a new trial should be exercised
only in the exceptional case in which the evidence weighs heavily against the
conviction.” State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1983).
Kirk was convicted of corruption of a minor pursuant to R.C.
2907.04(A), which 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 such other person is thirteen years of age or older but less
than sixteen years of age, or the offender is reckless in that regard.” He claims that
the state failed to present credible evidence that he knew that the victim was 13 years
old or older but less than 16 years old, or that he was reckless in that regard.
At trial, the state presented evidence that the victim was an average
looking 13-year-old child whom Kirk picked up across from a middle school as the
victim was walking to school. Kirk argues that there is no evidence that the victim
told Kirk her age, but this misses the point. The victim does not need to disclose her
age in order to put the offender on notice of her tender years. From the evidence
presented, the jury reasonably concluded that Kirk was at least reckless with respect
to the victim’s age in light of the fact that he picked her up near a middle school as
the victim was walking to school and the undisputed evidence demonstrates that the
victim appeared her age at the time of the crime. There is nothing inherently
unreliable regarding the testimony demonstrating Kirk’s knowledge of the victim’s
age.
With respect to the rape and kidnapping convictions based on the
2004 incident, Kirk claims there was no evidence of force with respect to the rape
and the state failed to establish kidnapping because the victim voluntarily entered
the car. Neither argument has merit.
The force element of rape was satisfied with the victim’s credible
testimony that Kirk threatened her with a brandished firearm. In addition, the fact
that the victim voluntarily entered Kirk’s car is irrelevant. In order to demonstrate
that a kidnapping occurred, the state must present evidence of force, threat, or
deception. Kirk does not contest and has not presented any basis to undermine the
victim’s credibility with respect to her testimony establishing that she entered the
car under the belief that Kirk would take her to a restaurant to get breakfast before
Kirk drove the victim to the secluded area against the victim’s wishes. This
demonstrates kidnapping by deception. See, e.g., State v. Frazier, 8th Dist.
Cuyahoga No. 107680, 2019-Ohio-2739, ¶ 20 (conviction for kidnapping by
deception affirmed based on evidence that the victim voluntarily entered the car
under the belief of being taken to the store). This is not the exceptional case
warranting appellate intervention. The sixth and seventh assignment of errors are
overruled.
In the eighth assignment of error, Kirk claims that his rape and
kidnapping convictions are imposed on allied offenses of similar import. Kirk did
not preserve this error for appeal by lodging a timely objection, and therefore, he
must demonstrate plain error. State v. Rogers, 143 Ohio St. 3d 385, 2015-Ohio-
2459, 38 N.E.3d 860, ¶ 22. This limits our appellate review. The plain error doctrine
is not to be invoked except in the “utmost caution, under exceptional circumstances
and only to prevent a manifest miscarriage of justice.” (Emphasis sic.) Id. at ¶ 23.
This is not that exceptional case. Kirk’s sole argument is that the
kidnapping relating to the 2004 incident did not occur until he brandished the
firearm immediately before raping the victim, and therefore, according to Kirk, the
two crimes were committed simultaneously. This ignores the “deception” aspect of
the kidnapping charge that is based on the credible fact that Kirk deceived the victim
into getting into the vehicle with the false pretense of going to get breakfast together.
See, e.g., State v. Keeler, 8th Dist. Cuyahoga No. 101748, 2015-Ohio-1831, ¶ 49-50.
Instead of taking the victim to a restaurant, Kirk abducted the victim and took her
to a secluded park in order to commit the rape. The kidnapping in this case goes
well beyond Kirk’s brandishing the firearm immediately before committing the
crime. Id. Accordingly, Kirk has not demonstrated plain error and the eighth
assignment of error is overruled.
In the ninth assignment of error, Kirk claims the trial court erred by
imposing maximum sentences on the underlying offenses to be consecutively
served. The sole argument presented, however, is limited to the claim that both
victims were physically unharmed by the attacks and that the attacks were not the
worst forms of the offense.
There are two aspects to Kirk’s arguments. The first challenges the
individual maximum sentences on each count. The second aspect deals with the
trial court’s decision to impose the individual sentences to be consecutively served
under R.C. 2929.14(C)(4). Those arguments must be separately considered.
The maximum sentences were imposed on each count, and therefore
under R.C. 2953.08(A), we have jurisdiction to review the sentences in this case. In
support of appellate review of his sentence, Kirk cites R.C. 2953.08(G)(2) and State
v. Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 23. Marcum
authorizes a felony sentencing review of sentences that is not expressly provided
under R.C. 2953.08(G). Marcum at ¶ 23. That statutory section sets forth the
boundaries of appellate review over felony sentences and establishes a deferential
standard of review of the findings necessary to impose certain sentences. As the
Ohio Supreme Court noted, however, “some sentences do not require the findings
that R.C. 2953.08(G) specifically addresses.” Id. Nevertheless, according to
Marcum, “it is fully consistent for appellate courts to review those sentences that are
imposed solely after consideration of the factors in R.C. 2929.11 and 2929.12 under
a standard that is equally deferential to the sentencing court.” Id. Marcum provides
the only avenue for appellate review of Kirk’s sentence because the trial court is not
required to make findings in favor of imposing the individual prison terms on each
count, and thus under R.C. 2953.08(G)(2) as written, there is no basis to reverse a
maximum sentence.1
1 R.C. 2953.08 (G)(2) provides:
The court hearing an appeal under division (A), (B), or (C) of this section
shall review the record, including the findings underlying the sentence or
modification given by the sentencing court.
The appellate court may increase, reduce, or otherwise modify a sentence
that is appealed under this section or may vacate the sentence and remand
the matter to the sentencing court for resentencing. The appellate court’s
standard for review is not whether the sentencing court abused its
discretion. The appellate court may take any action authorized by this
division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court’s findings under
division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of
section 2929.14, or division (I) of section 2929.20 of the Revised Code,
whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
“When sentencing a defendant, the court must consider the purpose
and principles of felony sentencing set forth in R.C. 2929.11 and the serious and
recidivism factors in R.C. 2929.12.” State v. White, 8th Dist. Cuyahoga No. 106580,
2018-Ohio-3414, ¶ 7, citing State v. Hodges, 8th Dist. Cuyahoga No. 99511, 2013-
Ohio-5025, ¶ 7. Consideration of the factors is presumed unless proven otherwise
by the defendant. Id. at ¶ 9, citing State v. Seith, 8th Dist. Cuyahoga No. 104510,
2016-Ohio-8302, ¶ 12, and State v. Keith, 8th Dist. Cuyahoga Nos. 103413 and
103414, 2016-Ohio-5234. Thus, it is the trial court that possesses discretion to
sentence offenders and appellate courts must defer to the trial court’s sentencing
decision. State v. Roberts, 2017-Ohio-9014, 101 N.E.3d 1067, ¶ 20 (8th Dist.),
quoting State v. Rahab, 150 Ohio St. 3d 152, 2017-Ohio-1401, 80 N.E.3d 431, ¶ 10;
State v. Hairston, 118 Ohio St. 3d 289, 2008-Ohio-2338, 888 N.E.2d 1073, ¶ 16;
Marcum. As a result, and even under R.C. 2953.08(G) as interpreted through
Marcum, we can reverse an individual felony sentence imposed solely after
consideration of R.C. 2929.11 and 2929.12 only if we clearly and convincingly find
that the record does not support the sentence. Marcum at ¶ 23.
In this case, as it pertains to the individual sentences, the trial court
considered all that was required by law. The sole argument advanced is that the
crimes are not the “worst form of the offense” because the victims were left
physically unharmed. The very fact that Kirk has not addressed the emotional
impact of his conduct speaks volumes. Regardless, and in consideration of the
limited arguments presented, Kirk has not demonstrated that the record does not
clearly and convincingly support the individual maximum sentences. The trial court
considered the Crim.R. 11 and 12 factors and sentencing considerations that
necessarily included Kirk’s criminal history and the emotional impact on the
victims. We cannot conclude that the record clearly and convincingly does not
support the individual, maximum sentences.
With respect to the consecutive service issue, Kirk has not
demonstrated, let alone argued, that the R.C. 2929.14(C)(4) findings were not made
or that the findings were not clearly and convincingly supported by the record. The
only reference to “consecutive sentences” within the assigned error appears in the
heading section. He has not set forth a separate argument in support of reversing
the imposition of the consecutive sentences. Accordingly, there is no argument for
consideration. App.R. 16(A)(7). The ninth assignment of error is overruled.2
Kirk’s convictions are 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 out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
convictions having been affirmed, any bail pending appeal is terminated. Case
remanded to the trial court for execution of sentence.
2 In the tenth assignment of error, Kirk claims that his convictions should be
reversed based on cumulative error. We have not found multiple errors, and therefore, we
need not consider the final assignment of error.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
_____
SEAN C. GALLAGHER, PRESIDING JUDGE
FRANK D. CELEBREZZE, JR., J., and
MICHELLE J. SHEEHAN, J., CONCUR