State v. York

[Cite as State v. York, 2022-Ohio-1626.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 14-21-14
v.
CHARLES CALVIN YORK, OPINION
DEFENDANT-APPELLANT.
Appeal from Union County Common Pleas Court
Trial Court No. 2019-CR-0023
Judgment Affirmed in Part, Reversed in Part and Cause Remanded
Date of Decision: May 16, 2022
APPEARANCES:
Samuel H. Shamansky for Appellant
Raymond Kelly Hamilton for Appellee
Case No. 14-21-14
MILLER, J.
{¶1} Defendant-appellant, Charles York, appeals the May 12, 2021 judgment
of sentence of the Union County Court of Common Pleas. For the reasons that follow,
we affirm in part and reverse in part.
I. Background
{¶2} This case arises from York’s alleged sexual abuse of two of his step-
nieces, M.J. and B.J., between 2010 and 2018. Sexual abuse perpetrated by York
against a third step-niece, K.A., also has a bearing on this case.
{¶3} On February 15, 2019, the Union County Grand Jury indicted York on
six counts: Count One of rape in violation of R.C. 2907.02(A)(1)(b), a first-degree
felony, with a sexually violent predator specification pursuant to R.C. 2941.148(A);
Count Two of gross sexual imposition in violation of R.C. 2907.05(A)(4), a third-
degree felony; Count Three of rape in violation of R.C. 2907.02(A)(1)(c), a first-
degree felony, with a sexually violent predator specification pursuant to R.C.
2941.148(A); and Counts Four through Six of gross sexual imposition in violation of
R.C. 2907.05(A)(5), fourth-degree felonies. Counts One through Four were based on
acts allegedly perpetrated by York against M.J. Count Five related to acts allegedly
perpetrated by York against K.A., and Count Six related to acts allegedly perpetrated
by York against B.J. On February 20, 2019, York appeared for arraignment and
pleaded not guilty to the counts and specifications of the indictment.
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{¶4} On December 10, 2019, York filed a motion to sever the counts of the
indictment. York asked that Counts One through Four be tried separately from the
remaining counts of the indictment. He additionally requested that Counts Five and
Six be tried separately from each other. On January 14, 2020, the trial court denied
York’s motion to sever.
{¶5} On March 22, 2021, the State moved to dismiss Count Five of the
indictment on grounds that Count Five “was satisfied and resolved in Marysville
Municipal Court case number 2016CRB590 by the court’s finding that [York] was
guilty of sexual imposition [against K.A.] in violation of R.C. 2907.06(A)(4), which
resulted in [York] being required to register as a ‘Tier 1 Sex Offender.’” The trial
court granted the State’s motion and dismissed Count Five without prejudice. The
case then proceeded to a jury trial on the remaining counts and specifications of the
indictment.
{¶6} At trial, M.J., who was 20 years old at the time of her testimony, testified
that she used to live in a trailer with her sisters, B.J. and K.A., her brother, D.J., her
mother, Sheri York (“Sheri”), and her stepfather, Jeff York (“Jeff”). Jeff’s brother,
the appellant York, also lived in the trailer for a period of time. M.J. testified that
York sexually assaulted her a number of times while he was residing with the family.
She testified that York “put his penis into [her] vagina” and touched her “private
parts” including her “breast[s], buttocks, * * * thighs, or that place between [her] legs”
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when she was under the age of 13. (Mar. 23, 2021 Tr., Vol. II, at 10). M.J. stated
that York also assaulted her in a similar fashion when she was over the age of 13.
(Mar. 23, 2021 Tr., Vol. II, at 10). M.J. testified that, on each occasion, York
assaulted her inside of the family’s trailer. (Mar. 23, 2021 Tr., Vol. II, at 10).
{¶7} M.J. went on to describe in detail instances of York’s abuse. M.J.
testified that, when she was younger, she used to sleep on the couch because she did
not have a bed at the time. She stated that York would come into the living room
“saying he wanted to watch television” and sit on the same couch she was sleeping
on. (Mar. 23, 2021 Tr., Vol. II, at 14). M.J. testified that she “would wake up to
[York] rubbing [her] thigh and * * * over a period of time, [she] would start sleeping
on just one cushion of the couch and he would make an excuse to sit in the middle of
the couch.” (Mar. 23, 2021 Tr., Vol. II, at 14). According to M.J., she eventually
“started sleeping on the floor in [her] room to get away” from York. (Mar. 23, 2021
Tr., Vol. II, at 14).
{¶8} M.J. also testified about alarming or uncomfortable comments York
made to her. She testified that she enjoyed wearing dresses when she was younger,
but that York told her that she “looked really nice in dresses” and that “if [she] wasn’t
his niece, * * * he would try to get with her.” (Mar. 23, 2021 Tr., Vol. II, at 14). She
said that York would call her “sexy,” “whore,” or “worthless.” (Mar. 23, 2021 Tr.,
Vol. II, at 15). M.J. stated that York also threatened to “go after” K.A. if she told
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anyone about the abuse. (Mar. 23, 2021 Tr., Vol. II, at 14). Further, M.J. testified
that York said she would “probably end up dead” if she told anyone. (Mar. 23, 2021
Tr., Vol. II, at 26).
{¶9} In addition to M.J.’s testimony, the State presented a video recording of
statements M.J. made during a March 30, 2018 forensic interview at the Child
Advocacy Center (“CAC”) in Columbus. (State’s Ex. 3). During the interview, M.J.
described incidents of sexual abuse perpetrated by York. M.J. first described an
incident very similar to the one she testified to at trial:
One day I woke up. Not fully, but I woke up, and [York] was sitting at
the edge of the couch, rubbing my legs. So from then on I decided to
curl up a little more so I only took up two cushions instead of three, and
he just kept moving over and rubbing my legs every single time I woke
up, until the point that I ended up being able to sleep on one of the
cushions. And he tried any excuses to sit in the middle of the couch.
She stated that York rubbed her knee and thigh and that he said that he was trying to
comfort her or help her sleep. M.J. said that she asked York to stop but that he did
not listen.
{¶10} M.J. also described two additional incidents—one when she was
approximately 12 years old and one when she was approximately 15 years old. M.J.
stated that, during the first of these incidents, she went to bed and woke up to York
kissing her on her cheek. She stated that York got on top of her, pulled down his
boxer shorts, and said, “It will be okay.” M.J. said that she felt like she “couldn’t
move any muscles.” M.J. stated that she did not see York’s penis, but that she
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believed that his penis penetrated her vagina because his hands were positioned next
to her head like he was “lifting himself up a little” and his hips were aligned with her
hips. She then said that she felt his penis enter her vagina and that she now knows it
was his penis because she has since had consensual sexual intercourse. M.J. stated
that she felt pain in her vagina, that her vagina bled after the incident, and that it later
hurt to urinate.
{¶11} As to the later incident, M.J. stated that around Christmastime, she
decided to cook a turkey for the family. After preparing the turkey, she laid down on
the couch to rest. M.J. said that she thought she could lie down because York was
absent from the trailer. According to M.J., she was lying on the couch sleeping when
she woke up to York “pulling up his shorts and getting off of [her].” M.J. said that
by York’s “shorts” she meant his boxer shorts. She stated that York was “laying on
top of [her]” and that she woke up because “it was hard to breathe because he was
putting all his weight on [her].” M.J. said that her underwear was pulled down around
her ankles and that she “felt sore down there,” meaning her vagina. She emphasized
that when she awoke, she felt “a lot of pain” in the area of her vagina. M.J. stated that
she was only able to view York’s buttocks “because he turned away from [her].”
{¶12} B.J., who was 24 years old at the time of her testimony, also testified at
trial. B.J. stated that when she was 15 or 16 years old, she and York were in the
family’s trailer watching television on the couch when York put “his hand on [her]
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knee and start[ed] moving it up a little bit” toward her vagina. (Mar. 23, 2021 Tr.,
Vol. II, at 111, 113-114). She stated that she “slapped his hand and told him no.”
(Mar. 23, 2021 Tr., Vol. II, at 111). B.J. testified that York stopped after she slapped
his hand a couple of times and that she then ran to tell Sheri and Jeff about what had
happened. (Mar. 23, 2021 Tr., Vol. II, at 114).
{¶13} B.J. testified that the very first time York touched her inappropriately
she was staying at the home of one of York’s friends along with York and her siblings.
B.J. stated that York “turned over towards [her] in the bed and put his hand up on
[the] higher side of [her] thigh” and moved toward her vagina. (Mar. 23, 2021 Tr.,
Vol. II, at 112, 117). She testified that she told York “no, stop it” and “rolled away
from him up against the wall.” (Mar. 23, 2021 Tr., Vol. II, at 112). According to
B.J., she also slapped his hand “real hard” and told him that what he was doing was
not right. (Mar. 23, 2021 Tr., Vol. II, at 117). B.J. stated that she was 13 or 14 years
old at the time of this incident. (Mar. 23, 2021 Tr., Vol. II, at 116).
{¶14} B.J. described a third incident with York as follows:
[W]e were at [the trailer]. * * * I went to the bedroom to go get my
bedding and all that to go to sleep in the parents’ room and, as I went
back there, [York] came to the bedroom and stood in front of the door
and I went to go to the bed and he came in and trapped me on the bed.
He sat down, grabbed me, put me on his lap and started rubbing my
butt. And then I was fighting him and I ran away and was bawling into
my parents’ room.
(Mar. 23, 2021 Tr., Vol. II, at 112).
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{¶15} Finally, B.J. described an incident where she was playing a card game
in the living room with York. B.J. testified that she was wearing a shorter skirt and
had her legs crossed. She stated that York put his hand between her thighs and began
moving his hand toward her vagina. (Mar. 23, 2021 Tr., Vol. II, at 118). B.J. testified
that, like the other incidents, she slapped York’s hand away and then ran to tell Sheri
and Jeff what had happened. (Mar. 23, 2021 Tr., Vol. II, at 118). Like M.J., B.J.
testified to a number of inappropriate sexual comments made by York, including that
he had been “single for so long” and that he did not “get the affection that he needs.”
(Mar. 23, 2021 Tr., Vol. II, at 119).
{¶16} Although Count Five of the indictment had been dismissed, the State
also called K.A. to testify regarding her experience with York. K.A., who was 18
years old at the time of trial, testified that on September 22, 2016, when she was 14,
she was with York in the family’s trailer. K.A. and York were watching television,
and K.A. stated that she was wearing “booty shorts”—“really, really short” shorts that
“can show the bottom of your butt.” (Mar. 23, 2021 Tr., Vol. I, at 60-61). K.A. said
she felt uncomfortable because she “could feel [York’s] eyes on her.” (Mar. 23, 2021
Tr., Vol. I, at 59). She said York suggested that she change into a dress because she
“look[ed] good in dresses just as well as [her] sister does.” (Mar. 23, 2021 Tr., Vol.
I, at 59). K.A. testified that she did not want to put on the dress because it was too
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revealing. She said she became so uncomfortable that she went into Sheri’s bedroom
to lie in the bed. (Mar. 23, 2021 Tr., Vol. I, at 59-60).
{¶17} According to K.A., she was lying in bed when York “threw the blanket
off of [her]” and began grabbing her buttocks, kissing her on the cheek and neck, and
rubbing his hands over her thighs. (Mar. 23, 2021 Tr., Vol. I, at 53). K.A. testified
that she pushed York and kicked him in the groin to get him off of her. (Mar. 23,
2021 Tr., Vol. I, at 54, 67). K.A. stated that she was able to get away from York and
that she ran to her maternal grandfather’s house, where she called her cousin. (Mar.
23, 2021 Tr., Vol. I, at 54). Her cousin then came over and called the police. (Mar.
23, 2021 Tr., Vol. I, at 54). In addition, K.A. confirmed that York was known to
make numerous inappropriate comments, including “unsettling” comments about
how pretty M.J. looked in dresses. (Mar. 23, 2021 Tr., Vol. I, at 74-75).
{¶18} Following K.A.’s testimony, the State introduced a copy of a video
recording of York’s interview with police after he was arrested on September 22,
2016. During the interview, York admitted that he took the blanket off of K.A.,
grabbed her buttocks, and kissed her on her neck and thigh. (State’s Ex. 15). He
seemingly acknowledged that K.A. had struggled to get away from him, and he said
he ultimately let K.A. go when he “realized [he] was in the wrong.” (State’s Ex. 15).
York explained that he “just wasn’t thinking straight,” and he claimed that he was
“seduced” by K.A. He stated that K.A., as well as M.J. and B.J., had been “play[ing]
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games” with him by “taunting and teasing” him and “sitting there in their shorts with
their legs up so you can see shit.” (State’s Ex. 15). When asked whether “this [went]
on a lot,” York responded that he had “been lonely for 10 years.” (State’s Ex. 15).
York also told the interviewing officer that he had tried to “teach them and tell them”
to cross their legs and wear less revealing clothing. (State’s Ex. 15). York further
said that he had in the past commented that M.J. looked “nice” and “pretty today” in
her dresses. (State’s Ex. 15).
{¶19} The State then presented a certified copy of York’s sentencing entry in
Marysville Municipal Court case number 2016CRB590. (State’s Ex. 16). The
sentencing entry reflected that York had pleaded no contest to one count of third-
degree misdemeanor sexual imposition. (State’s Ex. 16). Furthermore, the entry
reflected that York was designated as a Tier I Sex Offender and ordered to have no
contact with K.A. (State’s Ex. 16).
{¶20} York’s defense centered primarily on discrediting M.J.’s and B.J.’s
testimonies while simultaneously attempting to demonstrate that it was M.J. and
B.J.’s maternal grandfather who actually abused them. Sheri and Jeff both testified
that M.J. and B.J. had a history of misbehavior and dishonesty. Jeff testified that he
was skeptical about M.J.’s and B.J.’s claims because their stories kept changing and
because they were not behaving as though they had been assaulted in the manner they
described. (Mar. 24, 2021 Tr., Vol. I, at 46, 78-80, 87-88). Jeff also testified that B.J.
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had previously falsely accused someone of sexual abuse. (Mar. 24, 2021 Tr., Vol. I,
at 88). Sheri in turn testified that B.J.’s account of the abuse perpetrated by York kept
changing, much like her earlier, allegedly false accusation. (Mar. 24, 2021 Tr., Vol.
I, at 108-109, 135). Sheri stated that M.J.’s story had likewise changed over time.
(Mar. 24, 2021 Tr., Vol. I, at 135). She testified that M.J. and B.J. both had a history
of “not being truthful.” (Mar. 24, 2021 Tr., Vol. I, at 128, 130). Sheri stated that she
does not believe that York “sexually touched” M.J. or B.J. (Mar. 24, 2021 Tr., Vol.
I, at 134). Similarly, M.J. and B.J.’s brother, D.J., testified that he did not believe
M.J.’s and B.J.’s allegations, partly because they had a reputation in the family for
being liars. (Mar. 25, 2021 Tr. at 41-42). He also claimed that M.J. and B.J. always
tried to “manipulate” him into doing things for him by “spreading their legs open and
trying to say that [he was] going to do this or [they were] going to tell dad that [he]
did this.” (Mar. 25, 2021 Tr. at 42).
{¶21} With respect to his claim that the actual abuser was M.J. and B.J.’s
maternal grandfather, York offered the testimony of Courtney Simpson. Simpson
testified that she briefly worked with M.J. at a McDonald’s restaurant. Simpson stated
that during one shift, she encountered M.J. in the crew room, where M.J. disclosed
that “her mom forced her to take and lie on [York] and say that [York] molested her
and sexually messed with her.” (Mar. 25, 2021 Tr. at 8). She testified that M.J. then
said that York “didn’t do it and it was her grandfather that did it.” (Mar. 25, 2021 Tr.
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at 8). In addition to Simpson, Jeff testified that M.J. and B.J. had previously alleged
to him and to others that their grandfather abused them and that he believed these
claims because Sheri had disclosed to him that she had been abused by her father.
(Mar. 24, 2021 Tr., Vol. I, at 80-82, 87-89). Sheri stated that she had been abused by
her father, and she further testified that she was under the impression that M.J. had
actually told York that she was being abused by her grandfather. (Mar. 24, 2021 Tr.,
Vol. I, at 125-26, 131).
{¶22} For their part, M.J. and B.J. repeatedly denied that they had been abused
by their grandfather. They insisted that it was York who abused them. Furthermore,
M.J. and B.J. testified that it was Sheri and Jeff, not them, who were being untruthful.
Finally, M.J. flatly rejected Simpson’s story and urged that Simpson was lying.
{¶23} On March 25, 2021, the jury found York guilty of Counts One through
Four and Count Six. York waived his right to a jury for determination of the sexually
violent predator specifications associated with Counts One and Three. The trial court
later held a hearing on the specifications, after which the trial court concluded that “it
could not find beyond a reasonable doubt that [York] was likely to commit future
sexually violent crimes.”
{¶24} The case then proceeded to sentencing. At the May 12, 2021 sentencing
hearing, the trial court sentenced York to 10 years to life in prison for Count One, 36
months in prison for Count Two, 8 years in prison for Count Three, 15 months in
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prison for Count Four, and 15 months in prison for Count Six. The trial court ordered
that the sentences be served consecutively for an aggregate sentence of 23.5 years to
life in prison. Furthermore, York was classified as a Tier III sex offender. The trial
court filed its judgment entry of sentence on May 12, 2021.
II. Assignments of Error
{¶25} On June 11, 2021, York timely filed a notice of appeal. He raises the
following six assignments of error for our review:
1. Appellant’s convictions for Gross Sexual Imposition as to
Counts Four and Six are void as a matter of law for lack of subject
matter jurisdiction.
2. Appellant was convicted in the absence of evidence sufficient
to support findings of guilty as to Counts Three, Four and Six, in
violation of his right to due process as guaranteed by the Fifth and
Fourteenth Amendments to the United States Constitution and
comparable provisions of the Ohio Constitution.
3. Appellant’s convictions were against the manifest weight of
the evidence in violation of his right to due process as guaranteed
by the Fifth and Fourteenth Amendments to the United States
Constitution and comparable provisions of the Ohio Constitution.
4. The trial court erred by allowing a joint trial of all offenses set
forth in the Indictment despite a significant risk of confusing the
jury in violation of his rights as guaranteed by the Fifth and Sixth
Amendments to the United States Constitution and comparable
provisions of the Ohio Constitution.
5. The trial court erred by allowing the State to elicit “other acts”
evidence that was not admissible for any permissible purpose under
Evid.R. 404(B) and which was affirmatively utilized by the State to
prove Appellant’s action in conformity therewith.
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6. Trial counsel’s failure to seek dismissal of Counts Four and
Six and repeated failure to object to irrelevant, inadmissible, and
highly prejudicial testimony constituted ineffective assistance of
counsel and violated Appellant’s rights as guaranteed by the Sixth
Amendment to the United States Constitution and comparable
provisions of the Ohio Constitution.
For ease of discussion, we elect to address the assignments of error out of the order
they were presented.
III. Discussion
A. Fourth Assignment of Error: Did the trial court commit plain error by
allowing all of the counts to be tried in a single trial?
{¶26} In his fourth assignment of error, York argues that the trial court
committed plain error by allowing Counts One through Four of the indictment, which
related to the offenses allegedly committed by York against M.J., to be tried alongside
Count Six of the indictment, which related to the offense allegedly committed by York
against B.J. York notes that “each of the alleged offenses involved one of two sisters
who alleged that [he] engaged in similar sexually inappropriate behavior in the same
residence during a similar period of time.” York argues that he was prejudiced by the
joinder of these offenses for trial because the jury was permitted to “compare these
numerous and substantial similarities and form inferences based on [his] perceived
propensity, rather than separate and independent proof.”
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i. Standard of Review
{¶27} “Joinder is liberally 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). However, even where
joinder is otherwise proper under Crim.R. 8(A), “[i]f it appears that a defendant or the
state is prejudiced by a joinder of offenses or of defendants in an indictment, * * * the
court shall order an election or separate trial of counts, grant a severance of
defendants, or provide such other relief as justice requires.” Crim.R. 14.
{¶28} “Generally, we review a trial court’s decision on a motion to sever under
Crim.R. 14 for an abuse of discretion.” State v. Lester, 3d Dist. Union Nos. 14-18-21
and 14-18-22, 2020-Ohio-2988, ¶ 31. However, in this case, because York did not
renew his Crim.R. 14 motion for severance at the close of the State’s case or at the
close of all evidence, our review is limited to whether the trial court committed plain
error. Id. at ¶ 32.
{¶29} To reverse a criminal conviction on the basis of plain error, the trial
court must have deviated from a legal rule, the error must have been an obvious defect
in the proceeding, and the error must have affected a substantial right. State v. Barnes,
94 Ohio St.3d 21, 27 (2002). Under the plain-error standard, the appellant must
demonstrate that the outcome of his trial would clearly have been different but for the
trial court’s errors. State v. Waddell, 75 Ohio St.3d 163, 166 (1996), citing State v.
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Moreland, 50 Ohio St.3d 58 (1990). We recognize plain error “‘with the utmost
caution, under exceptional circumstances and only to prevent a manifest miscarriage
of justice.’” State v. Landrum, 53 Ohio St.3d 107, 111 (1990), quoting State v. Long,
53 Ohio St.2d 91 (1978), paragraph three of the syllabus.
ii. The trial court did not commit plain error by conducting a single trial.
{¶30} York does not dispute that Counts One, Two, Three, Four, and Six
satisfy the requirements for joinder under Crim.R. 8(A). Instead, York maintains that
regardless of whether the initial joinder of the offenses was permissible, the combined
trial of the offenses was unduly prejudicial.
{¶31} To obtain severance pursuant to Crim.R. 14, the accused bears “the
burden of affirmatively showing that his rights were prejudiced; he must furnish the
trial court with sufficient information so that it can weigh the considerations favoring
joinder against the defendant’s right to a fair trial[.]” State v. Torres, 66 Ohio St.2d
340 (1981), syllabus. However, the State can refute a defendant’s claim of prejudicial
joinder by demonstrating either of the following: (1) that the evidence to be
introduced relative to one offense would be admissible in the trial on the other,
severed offense, pursuant to Evid.R. 404(B) (the “other-acts” test); or (2) that,
regardless of the admissibility of such evidence, the evidence relating to each charge
is simple and direct (the “joinder test”). State v. Powell, 8th Dist. Cuyahoga No.
107276, 2019-Ohio-4345, ¶ 74. Importantly, the two tests are disjunctive—the
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satisfaction of one negates an accused’s claim of prejudice without consideration of
the other. State v. Truss, 10th Dist. Franklin No. 18AP-147, 2019-Ohio-3579, ¶ 17.
Thus, “[i]f the state can meet the joinder test, it need not meet the stricter ‘other acts’
test.” State v. Johnson, 88 Ohio St.3d 95, 109 (2000).
{¶32} Generally, “[e]vidence meets the simple-and-direct standard [of the
joinder test] if it is straightforward and uncomplicated enough that the jury can
segregate the proof required for each offense.” State v. Parham, 10th Dist. Franklin
No. 16AP-826, 2019-Ohio-358, ¶ 27, citing State v. Clinton, 153 Ohio St.3d 422,
2017-Ohio-9423, ¶ 52. “Ohio appellate courts routinely find no prejudicial joinder
where the evidence is presented in an orderly fashion as to the separate offenses or
victims without significant overlap or conflation of proof.” State v. Lewis, 6th Dist.
Lucas Nos. L-09-1224 and L-09-1225, 2010-Ohio-4202, ¶ 33.
{¶33} Here, M.J. and B.J. are sisters who were allegedly assaulted by York at
the same location during roughly the same time period. Thus, insofar as the State
sought to provide background information and contextualize York’s alleged abuse,
there was necessarily some evidentiary overlap. Nevertheless, M.J. was the only
witness to the abuse allegedly perpetrated against her by York. Likewise, B.J. was
the only witness to the crime allegedly perpetrated against her. When M.J. testified
about what York had allegedly done to her and the State introduced M.J.’s other
statements, specifically the CAC video recording, there was no risk that the jury
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would misunderstand M.J.’s account and conclude that she was describing anything
other than the acts York perpetrated against her. The same is true of B.J.’s testimony.
Therefore, the evidence was sufficiently straightforward and uncomplicated that the
jury could readily segregate the proof required for each offense. Indeed, in sexual-
assault cases with allegations similar to those in this case, courts have determined that
the evidence of each case was separate and distinct. See State v. Addison, 12th Dist.
Clermont Nos. CA2019-07-058 and CA2019-07-059, 2020-Ohio-3500, ¶ 53; State v.
Woodruff, 1st Dist. Hamilton Nos. C-140256 and C-140257, 2015-Ohio-2422, ¶ 15.
{¶34} Furthermore, there is no indication in the record that York would have
pursued a different defense against the charges had they been tried separately. See
State v. Ashcraft, 12th Dist. Butler No. CA2008-12-305, 2009-Ohio-5281, ¶ 25. At
trial, York defended against the charges by suggesting that M.J. and B.J. had either
misidentified their assailant or outright fabricated their allegations of abuse.
However, there is nothing in the record suggesting that York was forced to pursue
this defense because the charges against him were tried together or that some other
defense was made unavailable to him by reason of the joint trial.
{¶35} Finally, after the close of evidence, the trial court instructed the jury as
follows: “The charges set forth in each count in the indictment constitute a separate
and distinct matter. You will consider each count and the evidence applicable to each
count separately, and you must state your findings as to each count uninfluenced by
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your verdict as to any other count.” “Courts have held that any prejudice that results
from the joinder of offenses is minimized when a trial court cautions a jury before
deliberations to consider each count, and the evidence applicable to each count
separately, and to state its findings as to each count uninfluenced by its verdict on any
other counts.” State v. Freeland, 4th Dist. Ross No. 12CA3352, 2015-Ohio-3410, ¶
16. For all of these reasons, we conclude that the trial court did not commit plain
error by allowing these charges to be tried together.
{¶36} York’s fourth assignment of error is overruled.
B. Fifth Assignment of Error: Did the trial court err by allowing the State to
introduce inadmissible “other-acts” evidence in violation of Evid.R. 404(B)?
{¶37} In his fifth assignment of error, York argues that the trial court erred by
allowing the State to introduce certain “other-acts” evidence at trial. York focuses on
three items of supposedly inadmissible other-acts evidence: (1) evidence “concerning
his sexual offenses against K.A.”; (2) testimony regarding “alleged drug use and drug
sales”; and (3) testimony about “a purported suicide attempt.”
i. Applicable Law & Standard of Review
{¶38} “Evid.R. 404(B) categorically prohibits evidence of a defendant’s other
acts when its only value is to show that the defendant has the character or propensity
to commit a crime.” State v. Smith, 162 Ohio St.3d 353, 2020-Ohio-4441, ¶ 36.
“[E]vidence which tends to show that the accused has committed other crimes or acts
independent of the crime for which he stands trial is not admissible to prove a
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defendant’s character or that the defendant acted in conformity therewith.” State v.
Hawthorne, 7th Dist. Columbiana No. 04 CO 56, 2005-Ohio-6779, ¶ 24. “However,
under Evid.R. 404(B), ‘the admission of “other acts” extrinsic to the charged offense’
is permissible in certain circumstances.” State v. Bortree, 3d Dist. Logan No. 8-20-
67, 2021-Ohio-2873, ¶ 44, quoting Lester, 2020-Ohio-2988, at ¶ 43.
{¶39} When determining whether other-acts evidence is admissible, courts
engage in a three-step analysis. See State v. Williams, 134 Ohio St.3d 521, 2012-
Ohio-5695, ¶ 19-24. First, the court “consider[s] whether the other acts evidence is
relevant to making any fact that is of consequence to the determination of the action
more or less probable than it would be without the evidence.” Id. at ¶ 20, citing
Evid.R. 401. “The threshold question is whether the evidence is relevant.” Smith at
¶ 37. However,
the problem with other-acts evidence is rarely that it is irrelevant; often,
it is too relevant. In the Evid.R. 404(B) context, the relevance
examination asks whether the proffered evidence is relevant to the
particular purpose for which it is offered, as well as whether it is
relevant to an issue that is actually in dispute.
(Citations omitted.) Id.; see State v. Hartman, 161 Ohio St.3d 214, 2020-Ohio-4440,
¶ 26 (“[T]he inquiry is not whether the other-acts evidence is relevant to the ultimate
determination of guilt. Rather, the court must evaluate whether the evidence is
relevant to the particular purpose for which it is offered.”) (Emphasis sic.). “Thus,
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courts should begin by evaluating whether the evidence is relevant to a non-character-
based issue that is material to the case.” Smith at ¶ 38.
{¶40} In the second step, the court “consider[s] whether evidence of the other
crimes, wrongs, or acts is presented to prove the character of the accused in order to
show activity in conformity therewith or whether the other acts evidence is presented
for a legitimate purpose, such as those stated in Evid.R. 404(B).” Williams at ¶ 20.
Under Evid.R. 404(B), other-acts evidence may be admissible to establish “proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.” Evid.R. 404(B)’s list of permissible uses for other-acts evidence
is nonexhaustive. Hartman at ¶ 26. The key to the admissibility of other-acts
evidence under Evid.R. 404(B) is that “the evidence must prove something other than
the defendant’s disposition to commit certain acts.” Id. at ¶ 22.
{¶41} In the third and final step, the court “consider[s] whether the probative
value of the other acts evidence is substantially outweighed by the danger of unfair
prejudice.” Williams at ¶ 20, citing Evid.R. 403. “As the importance of the factual
dispute for which the evidence is offered to the resolution of the case increases, the
probative value of the evidence also increases and the risk of unfair prejudice
decreases.” (Emphasis sic.) Hartman at ¶ 31.
{¶42} The first two steps of the foregoing analysis “present questions of law
and are subject to a de novo standard of review on appeal.” Bortree, 2021-Ohio-2873,
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at ¶ 46. However, the “third step ‘constitutes a judgment call which we review for
abuse of discretion.’” Id. at ¶ 48, quoting State v. McDaniel, 1st Dist. Hamilton No.
C-190476, 2021-Ohio-724, ¶ 17. An abuse of discretion is more than a mere error in
judgment; it suggests that a decision is unreasonable, arbitrary, or unconscionable.
State v. Adams, 62 Ohio St.2d 151, 157-158 (1980).
{¶43} Finally, we note that York did not object to the admission of all of the
other-acts evidence that is the subject of this assignment of error. With respect to the
evidence to which York did not object, we are limited to plain-error review. State v.
Wendel, 3d Dist. Union No. 14-16-08, 2016-Ohio-7915, ¶ 23.
ii. The trial court did not err by allowing the State to introduce other-acts
evidence.
{¶44} York contends that three different categories of impermissible other-acts
evidence were improperly admitted as evidence at his trial. We address each category
in turn.
a. The evidence regarding York’s offense against K.A. was properly admitted to
rebut York’s claims of innocent intent.
{¶45} Evidence of York’s prior offense against K.A. was introduced at trial
primarily through three channels: (1) K.A.’s testimony, (2) the video recording of
York’s interrogation, and (3) the certified copy of York’s sentencing entry in
Marysville Municipal Court case number 2016CRB590. In its pre-trial notice of
intent to use Evid.R. 404(B) evidence, the State indicated that this evidence would be
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relevant to demonstrating “absence of mistake or accident,” as well as the “signature
marks of [York’s] motive, opportunity, identity, intent and plan” and his “modus
operandi.” Similarly, in its appellate brief, the State maintains that the trial court did
not err by admitting this evidence because it “create[d] probative evidentiary value
related to the specific provisions of Evidence Rule 404(B) associated with * * *
opportunity, identity, intent and plan.” The State also asserts that this evidence
“provided probative signature marks of [York’s] motive—sexual gratification.”
While we have our doubts whether the evidence of York’s prior offense against K.A.
was admissible for all of these purposes, the State identified at least one permissible
purpose for this evidence.
{¶46} As mentioned above, York’s defense was premised mainly on
discrediting M.J. and B.J. and shifting blame for their abuse onto their maternal
grandfather. However, in at least one instance, York attempted to inject the possibility
of an innocent explanation for some of his alleged conduct. While cross-examining
B.J., York’s trial counsel inquired whether B.J. was incorrectly recalling one of the
incidents with York and whether she had in fact told Jeff that York “just pulled the
covers off of [her].” (Mar. 23, 2021 Tr., Vol. I, at 141). B.J. responded that “no, [she]
did not tell Jeff anything about telling that [York] didn’t do it.” (Mar. 23, 2021 Tr.,
Vol. I, at 141).
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{¶47} York’s trial counsel resumed this line of inquiry while cross-examining
Jeff:
[York’s Counsel]: Okay, there was a specific instance with [B.J.]
where she came, I believe --
[Jeff]: Into my room.
[York’s Counsel]: -- into your bedroom when Sheri was there, also.
Correct?
[Jeff]: Yes.
[York’s Counsel]: And she indicated that something had happened.
Correct?
[Jeff]: Yeah, that [York] pulled the covers off of her and
touched her leg when he ripped them back asking
where his cigarettes was at [sic].
[York’s Counsel]: Did she say anything else had happened?
[Jeff]: No, she said that it made her feel uncomfortable
that he was in the room and that’s why I got mad
because he was in the room and I didn’t think it
was right of him being in the room while she was
asleep. * * *
[York’s Counsel]: So, you did believe that he may have pulled the
covers off?
[Jeff]: Yeah.
[York’s Counsel]: And in the process, actually, touched her leg at
some point?
[Jeff]: Yep.
[York’s Counsel]: In a sexual manner?
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[Jeff]: No, just trying to get the covers off from what she
told me because I was starting to get pissed and
when I start getting mad, she’s like he didn’t do
nothing [sic]. He just scared me. I was like, well,
you need to disclose this before you get me up out
of bed out of a dead sleep.
(Mar. 24, 2021 Tr., Vol. I, at 76-78). Sheri similarly testified on cross-examination
that B.J. “just said that [York] pulled the blanket off of her” and that he “touched her
leg or something when he pulled the cover off of her.” (Mar. 24, 2021 Tr., Vol. I, at
127-128).
{¶48} Finally, during closing statements, York’s trial counsel specifically
emphasized this alternative version of this incident between B.J. and York:
I’m going to talk to you next about [B.J.]. The testimony that you heard
about [B.J.] is that she indicated that there were three separate events
that occurred with [York]. She also testified that she didn’t tell anybody
until the final event. I believe she was fifteen or sixteen. And the
testimony there was that she ran to her mother and stepfather’s
bedroom. But you also heard testimony that the reason why [York] had
chased her was that she had stolen some cigarettes. She had them in the
bed. And what [B.J.] indicated was, and Sheri and Jeff both
corroborated, was that the actual acts were that [York] had pulled the
covers off trying to get the cigarettes from [B.J.]. That’s when she took
off. And [B.J.] said, he may have touched me on the leg. She never
said he did anything sexual in nature at that point. * * * There is no
evidence whatsoever that any of [the incidents] happened, except on the
last event where it’s been set forth that * * * York was in her room,
pulled off the covers. You heard the explanation. He was trying to get
his cigarettes back, which she had stolen. And then when she ran to her
room, she made the utterance that he had pulled the covers off. And she
admitted that, well, maybe he touched my leg. Nothing of any sexual
nature at that point. You heard both Sheri and Jeff testify that they
didn’t believe that [York] had done anything of a sexual nature to [B.J.].
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(Mar. 25, 2021 Tr. at 100-101).
{¶49} Through cross-examination and his argumentation during closing
statements, York placed his intent at issue. That is, York effectively conceded that
he might have touched B.J.’s leg during one of the several incidents B.J. described
during her testimony, but he claimed that such touching was, at most, incidental to his
pulling off the covers. Thus, a material issue at trial was whether York had in fact
touched B.J. during this particular incident, and if so, whether the touching was done
for the purpose of sexual gratification as required to prove gross sexual imposition.
{¶50} To be probative of intent, rather than the defendant’s propensity to
commit similar crimes, the other-acts evidence “must be sufficiently similar to the
crime charged.” Smith, 162 Ohio St.3d 353, 2020-Ohio-4441, at ¶ 45. “[T]he
question is whether, ‘under the circumstances, the detailed facts of the charged
[offense] and [the other acts] strongly suggest that an innocent explanation is
implausible.’” (Emphasis sic.) Hartman, 161 Ohio St.3d 214, 2020-Ohio-4440, at ¶
58, quoting Leonard, The New Wigmore: Evidence of Other Misconduct and Similar
Events, Section 7.5.2 (2d Ed.2019). “[T]he other-acts evidence ‘must be so related to
the crime charged in time or circumstances that evidence of the other acts is
significantly useful in showing the defendant’s intent in connection with the crime
charged.’” Id., quoting 1 Wharton’s Criminal Evidence, Section 4:31 (15th Ed.2019).
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{¶51} Here, the State’s evidence of York’s prior offense against K.A. satisfies
the first two steps of the other-acts evidence analysis because (1) York’s intent in
touching B.J. was both in dispute and material to the outcome of the case; (2) the
other-acts evidence was relevant to determining whether York’s intent was malicious
or whether it was benign; and (3) the evidence was presented for a legitimate purpose
under Evid.R. 404(B), rather than to prove York’s character and propensity to commit
sexual crimes. The incident described by K.A. in her testimony—the details of which
were confirmed by York’s own statements during his interview with police and by his
subsequent no-contest plea—bears a substantial resemblance to one of the incidents
described by B.J. during her testimony. In both incidents, York cornered one of his
step-nieces in a bedroom in the family trailer. The girls were similarly aged at the
time of each incident. Furthermore, K.A. and B.J. were both attacked by York while
they were in bed, York touched both of them on their buttocks, and in both instances,
K.A. and B.J. had to fight to escape from York. The incident with K.A. was even
similar to York’s own version of the encounter with B.J. insofar as they both involved
York tearing a blanket away from one of his step-nieces. In sum, the detailed facts of
York’s attacks on both K.A. and B.J., including his relationship to K.A. and B.J., their
ages, the location and environment in which the abuse occurred, and the manner of
the abuse, were sufficiently similar to suggest that an innocent explanation is
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implausible. See Smith at ¶ 49. The State’s evidence of York’s prior offense against
K.A. makes it more likely that York touched B.J.’s body with sexual intent.
{¶52} With respect to step three, it does not appear from the record that the
trial court explicitly stated its findings regarding its application of Evid.R. 403(A)’s
balancing test. However, the Supreme Court of Ohio has stated that “Evid.R. 403(A)
establishes a standard but does not require a trial court to explicitly state in its
judgment entry that the probative value of the ‘other acts’ evidence outweighs its
prejudicial impact.” State v. Bey, 85 Ohio St.3d 487, 489 (1999). “Absent a
demonstration in the record that the trial court did not do so, it is presumed that a trial
court has followed and applied Evid.R. 403 in the admission or exclusion of
evidence.” State v. McCown, 10th Dist. Franklin No. 06AP-153, 2006-Ohio-6040, ¶
21. Because there is no indication in the record that the trial court did not follow and
apply Evid.R. 403, we presume that it did.
{¶53} Presuming that the trial court found that the probative value of the
State’s evidence of York’s prior offense against K.A. was not substantially
outweighed by the danger of unfair prejudice, we conclude that the trial court did not
abuse its discretion. To resolve this case, it was critically important to determine what
York intended when he touched B.J. The probative value of the other-acts evidence
being fairly high in this case, the risk of unfair prejudice decreased by a proportional
amount. See Hartman, 161 Ohio St.3d 214, 2020-Ohio-4440, at ¶ 31. Furthermore,
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the danger of undue prejudice was mitigated at least somewhat by the trial court’s
admonishments to the jury throughout trial that it could not consider the State’s other-
acts evidence as proof of York’s character or propensity to commit crimes. See
Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, at ¶ 24; Wendel, 2016-Ohio-7915, at
¶ 24, 27-28. Although the trial court’s final instruction to the jury, in which it listed
all of the enumerated purposes in Evid.R. 404(B) for which other-acts evidence can
be considered, may have been of limited value to the jury, we cannot say that it
amplified the risk of unfair prejudice. See Hartman at ¶ 68-72; Smith, 162 Ohio St.3d
353, 2020-Ohio-4441, at ¶ 51. Accordingly, we conclude that the trial court did not
err by allowing the State to introduce the evidence of York’s prior offense against
K.A.
b. The trial court did not commit plain error by allowing the State to elicit
testimony about York’s alleged drug use, drug sales, and suicide attempt.
{¶54} York also argues that the trial court erred by allowing the State to
introduce testimony about his alleged drug use, drug sales, and suicide attempt. York
did not object to this testimony at trial, so we review for plain error.
{¶55} At trial, a number of the State’s witnesses testified about drug use in the
family trailer. B.J. testified that York, Sheri, and Jeff used drugs, including crack
cocaine, marijuana, and prescription drugs, together in the trailer. (Mar. 23, 2021 Tr.,
Vol. I, at 130). She testified that York was the one who procured most of the drugs
for Sheri, that Sheri was dependent on York for her drugs, and that Sheri had little
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history with drugs before meeting York and Jeff. (Mar. 23, 2021 Tr., Vol. I, at 145-
147). M.J. similarly stated that there was drug use inside of the trailer and that York
would obtain crack cocaine. (Mar. 23, 2021 Tr., Vol. II, at 29). M.J. testified that
York had significant influence over Sheri, in part because “[h]e was the one selling
her drugs.” (Mar. 23, 2021 Tr., Vol. II, at 51). K.A. also testified that York obtained
drugs for Sheri and Jeff. (Mar. 23, 2021 Tr., Vol. I, at 95). For their part, Sheri and
Jeff admitted that they, as well as York, had used drugs. Sheri conceded that, for a
period of time, York obtained crack cocaine for her. (Mar. 24, 2021 Tr., Vol. I, at
117-118).
{¶56} In this case, proof of York’s alleged involvement in selling and using
drugs was essential to understand the circumstances surrounding York’s alleged
abuse. For example, the drug abuse in the home provided the jury with a full
understanding of how the crimes could be perpetrated against the girls and explained
why the abuse went on for as long as it did. It was the State’s position that the years-
long abuse of M.J. and B.J. was possible because York was supplying Sheri and Jeff
with drugs. That is, the State asserted that Sheri and Jeff knowingly turned a blind
eye to York’s abuse because intervening would have risked disrupting access to their
supply of drugs. According to the State, York exploited this situation to his advantage
to continue assaulting M.J. and B.J.
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{¶57} Evid.R. 404(B) “does not bar evidence which is intrinsic to the crime
being tried.” State v. Ash, 7th Dist. Monroe No. 16 MO 0002, 2018-Ohio-1139, ¶ 60.
“So-called ‘other acts’ are admissible if ‘they are so blended or connected with the
one on trial as that proof of one incidentally involves the other; or explains the
circumstances thereof; or tends logically to prove any element of the crime charged.’”
Id., quoting State v. Roe, 41 Ohio St.3d 18, 23-24 (1989). “Consequently, a court can
admit evidence of other acts which form the immediate background of and which are
inextricably related to an act which forms the foundation of the charged offense.” Id.{¶58} Here, evidence of York’s potential involvement in selling and using
drugs in the family trailer was “inextricably related” to the charged offenses in that
this evidence explained the circumstances of M.J.’s and B.J.’s abuse. Consequently,
it was not error, let alone plain error, for the trial court to allow the State to introduce
this evidence.
{¶59} Finally, with respect to the various allusions to York’s purported suicide
attempt, we do not find that the trial court plainly erred by allowing this testimony.
York’s supposed suicide attempt was referenced briefly only a handful of times
throughout trial. Even assuming that it was error for the trial court to allow testimony
on this topic, York has failed to demonstrate how the outcome of his trial would have
been different had these scattered references been placed beyond the jury’s
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consideration. In light of the significant testimony and other evidence against York,
we cannot conclude that York was prejudiced.
{¶60} York’s fifth assignment of error is overruled.
C. Second Assignment of Error: Are York’s convictions on Counts Three, Four,
and Six supported by sufficient evidence?
{¶61} In his second assignment of error, York argues that insufficient evidence
supports his convictions on Count Three (rape of M.J. in violation of R.C.
2907.02(A)(1)(c)), Count Four (gross sexual imposition against M.J. in violation of
R.C. 2907.05(A)(5)), and Count Six (gross sexual imposition against B.J. in violation
of R.C. 2907.05(A)(5)). Specifically, York maintains that the State failed to prove
that M.J. and B.J. were substantially impaired by a mental or physical condition or
advanced age at the time he allegedly assaulted them.
i. Standard of Review
{¶62} “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at trial
to determine whether such evidence, if believed, would convince the average mind of
the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259(1991), paragraph two of the syllabus, superseded by state constitutional amendment
on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997). Consequently, “[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
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crime proven beyond a reasonable doubt.” Id. “In deciding if the evidence was
sufficient, we neither resolve evidentiary conflicts nor assess the credibility of
witnesses, as both are functions reserved for the trier of fact.” State v. Jones, 1st Dist.
Hamilton Nos. C-120570 and C-120571, 2013-Ohio-4775, ¶ 33.
ii. York’s Offenses
{¶63} York was convicted of violating R.C. 2907.02, which defines the
offense of rape, and R.C. 2907.05, which defines the offense of gross sexual
imposition. As relevant to Count Three of the indictment, R.C. 2907.02 provides:
(A)(1) No person shall engage in sexual conduct with another who is
not the spouse of the offender or who is the spouse of the offender but
is living separate and apart from the offender, when any of the following
applies:
***
(c) The other person’s ability to resist or consent is substantially
impaired because of a mental or physical condition or because of
advanced age, and the offender knows or has reasonable cause to
believe that the other person’s ability to resist or consent is substantially
impaired because of a mental or physical condition or because of
advanced age.
R.C. 2907.02(A)(1)(c).
{¶64} R.C. 2907.05 relates to Counts Four and Six and provides, in relevant
part, as follows:
(A) No person shall have sexual contact with another, not the spouse
of the offender; cause another, not the spouse of the offender, to have
sexual contact with the offender; or cause two or more other persons to
have sexual contact when any of the following applies:
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***
(5) The ability of the other person to resist or consent or the ability of
one of the other persons to resist or consent is substantially impaired
because of a mental or physical condition or because of advanced age,
and the offender knows or has reasonable cause to believe that the
ability to resist or consent of the other person or of one of the other
persons is substantially impaired because of a mental or physical
condition or because of advanced age.
R.C. 2907.05(A)(5).
{¶65} R.C. 2907.02(A)(1)(c) and 2907.05(A)(5) each require a showing that,
at the time of the offense, the victim’s ability to resist or consent was substantially
impaired because of a mental or physical condition or because of advanced age. “The
phrase ‘substantially impaired’ is not defined by the Ohio Revised Code.” State v.
Jones, 12th Dist. Warren No. CA2021-04-038, 2021-Ohio-4117, ¶ 48. “[T]he
Supreme Court of Ohio has found that ‘substantial impairment’ can be established
‘by demonstrating a present reduction, diminution or decrease in the victim’s ability,
either to appraise the nature of his conduct or to control his conduct.’” In re T.N., 3d
Dist. Marion No. 9-15-36, 2016-Ohio-5774, ¶ 56, quoting State v. Zeh, 31 Ohio St.3d
99, 103-104 (1987). “[A] determination of substantial impairment is made ‘on a case-
by-case basis, providing great deference to the fact finder.’” Id., quoting State v.
Brown, 3d Dist. Marion No. 9-09-15, 2009-Ohio-5428, ¶ 22.
{¶66} As is clear from their language, R.C. 2907.02(A)(1)(c) and
2907.05(A)(5) require more than a bare showing that the victim’s ability to resist or
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consent was substantially impaired. Rather, these statutes require proof that the
substantial impairment was caused by a “mental or physical condition” or “advanced
age.” See State v. Horn, 159 Ohio St.3d 539, 2020-Ohio-960, ¶ 11. “The General
Assembly * * * has not defined ‘mental or physical condition.’” Id. at ¶ 10. However,
while the Supreme Court of Ohio similarly has not prescribed an exact definition for
the phrase, it has defined “condition” as meaning “‘[a] state resulting from a physical
or mental illness’” or “‘a usually defective state of health’ or a prerequisite or
restricting factor.” Id. at ¶ 10, 12, quoting Shorter Oxford English Dictionary 483
(6th Ed.2007) and Merriam-Webster’s Collegiate Dictionary 259 (11th Ed.2020).
And although the phrase “advanced age” is not defined in R.C. 2907.02 or 2907.05,
given the context, it should be given its ordinary meaning—“elderliness,” “agedness,”
or “old age.” See The American Heritage Dictionary 81 (2d Ed.1982) (defining
“advanced” as “very old”); Of advanced age/years, https://www.merriam-
webster.com/dictionary/of%20advanced%20age%2Fyears (accessed Mar. 28, 2022)
(defining the idiom “of advanced age” as “having lived for many years: old”).
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iii. The Indictment & the State’s Theory of the Case
{¶67} York’s sufficiency-of-the-evidence argument concerns only his
convictions for Counts Three, Four, and Six. Therefore, we need only consider the
indictment and the State’s theory of the case as they relate to these three crimes.1
{¶68} Counts Four and Six of the indictment charged York with gross sexual
imposition in violation of R.C. 2907.05(A)(5). However, contrary to the wording of
the statute, Counts Four and Six did not allege that M.J.’s and B.J.’s abilities to resist
or consent were substantially impaired because of “a mental or physical condition or
because of advanced age,” of which York was aware. Instead, the State alleged the
ability of the girls to resist or consent was substantially impaired because of
something the State labeled as “age of youth.”
{¶69} “Age of youth” is not contained in R.C. 2907.05(A)(5) as an element of
gross sexual imposition, nor is it defined by statute. Further, the State’s “age of
youth” theory was not precisely explained by the State at trial. However, we find
some clarification in the State’s closing statements. In its closing, the State argued:
There’s going to be the concept of substantial impairment. Substantial
impairment, as you’re going to go back and deliberate, will involve the
difference in size between a six foot two, 215 pound man versus [M.J.]
who is about five foot one, 135 pounds. Substantial impairment in this
case also includes something very unique. Now, [York’s counsel] said
this family was dysfunctional. It’s that dysfunction, the dynamic. A
dynamic is something that is a force. A force that causes change or
1
York’s convictions for Count One (rape of M.J. in violation of R.C. 2907.02(A)(1)(b)) and Count Two
(gross sexual imposition against M.J. in violation of R.C. 2907.05(A)(4)) will be addressed in our discussion
of York’s third assignment of error, below.
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causes something to progress as it is already on-going. The family
dynamic experience [in the trailer] contributed to the opportunity, to the
plan, to the motive, to the intent. The absence of mistake that [York]
undertook so that he then could take advantage of [M.J.], [B.J.], and
[K.A.]. The ability to resist became an issue.2
(Mar. 25, 2021 Tr. at 78). Later in its closing statements, the State said that York
“used his physical size and dominance along with the family dynamic in order to
execute his self-gratification.” (Mar. 25, 2021 Tr. at 83). Furthermore, the State’s
closing statements contained numerous instances where the State connected
substantial impairment to “the dynamics that have gone on in this family,” Sheri’s
“own personal prurient interest towards drugs,” and the “family dynamic that created
a force that established a way of interacting between each other.” (Mar. 25, 2021 Tr.
at 87, 92). At one point, the State asserted that it was “the family dynamic that created
substantial impairment.” (Mar. 25, 2021 Tr. at 93).
{¶70} On appeal, the State has elaborated on its “age of youth” theory. In its
appellate brief, the State explains that “the substantial impairment, which was both
mental and physical, was the status of the victims as dependents—minor children—
who by age of youth could not consent to [York’s] sexual attacks nor could they resist,
because even when B.J. ran to her parents * * *, the adults did nothing to protect the
dependent children.” (Emphasis sic.). The State refers to the “age of youth dynamic”
as consisting of “the age of youth and the force that established the way of interacting
2
This theory is more akin to a claim the offenses were committed by the use of force.
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between B.J., K.A., and M.J. and their adult providers” as well as “the threats [York]
and his family made.” The State notes that other things, like “the neglectful parenting
by [Sheri], * * * [York’s] provision of rent money and drugs to [Sheri], and [York’s]
observed and perceived ‘influence’ upon [Sheri],” also contributed to the “age of
youth dynamic.” Finally, the State discusses “age of youth” as follows:
[T]he prosecution presented evidence of a family “dynamic,” a term
more specific to describe the age of youth and the force that established
the way of interaction between B.J., K.A. and M.J. vis-à-vis their adult
providers which resulted in substantial impairment both mentally and
physically. The prosecution focused upon the mala prohibita of the age
and relationship dynamic that captured and contained B.J. and M.J. into
a position of hopeless, helpless resignation of their plight, for which, a
determination of substantial impairment was argued and made “on a
case-by-case basis, providing great deference to the fact-finder.”
{¶71} In contrast to Counts Four and Six of the indictment, Count Three of the
indictment did not contain the “age of youth” language. Instead, Count Three of the
indictment closely tracked the language of R.C. 2907.02(A)(1)(c) by alleging that
M.J.’s ability “to resist or consent was substantially impaired because of a mental or
physical condition or because of advanced age.”
iv. Insufficient evidence supports York’s convictions on Counts Four and Six,
but York’s conviction on Count Three is supported by sufficient evidence.
{¶72} With respect to Counts Four and Six of the indictment, the State bound
itself to its “age of youth” theory by using that specific language to charge those
offenses. Thus, in considering whether York’s convictions on Counts Four and Six
are supported by sufficient evidence, we limit our analysis to deciding whether the
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State’s “age of youth” theory supports those convictions. However, while the State
attempted at trial to apply its “age of youth” theory to Count Three as well as to Counts
Four and Six, the broader language of Count Three of the indictment allowed for proof
of substantial impairment by means other than “age of youth.” Accordingly, in
determining whether York’s conviction on Count Three is supported by sufficient
evidence, we will consider whether the evidence supports that M.J. was substantially
impaired by something other than “age of youth.”
a. York’s convictions on Counts Four and Six are not supported by sufficient
evidence because “age of youth,” as formulated by the State, does not constitute
a mental or physical condition capable of causing substantial impairment.
{¶73} The State’s “age of youth” theory is not a model of clarity. The State
evidently regards “age of youth” as a kind of mental or physical condition defined by
a complex of factors—including rampant drug use in the York family trailer, threats
of violence, parental neglect, and Sheri and Jeff’s knowing indifference to York’s
alleged abuse—that produced, or were symptomatic of, severe dysfunction in the
familial relationship. It is apparently the State’s contention that this dysfunction,
when combined with M.J.’s and B.J.’s youthful ages and York’s superior size and
strength, exerted such influence on M.J. and B.J. as to render them powerless against
York. This, in brief, is what the State seems to mean by “age of youth.”
{¶74} However, in light of the Supreme Court of Ohio’s recent decision in
State v. Horn, “age of youth,” at least as the State conceives of it, cannot support
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convictions for gross sexual imposition in violation of R.C. 2907.05(A)(5) as charged
in Counts Four and Six.3 In Horn, the defendant was convicted of raping his
stepdaughter and step-niece. On appeal to the Sixth District Court of Appeals, the
defendant argued that two of his rape convictions should be reversed because there
was insufficient evidence that the victims “were substantially impaired by a physical
or mental condition pursuant to R.C. 2907.02(A)(1)(c).” State v. Horn, 6th Dist.
Wood No. WD-16-053, 2018-Ohio-779, ¶ 52. The State countered by arguing that
“the disparity of power in the familial relationship caused the substantial impairment.”
Id. at ¶ 53.
{¶75} With respect to the defendant’s conviction for raping his stepdaughter,
the Sixth District noted that the defendant’s stepdaughter had “repeatedly testified
how she felt helpless to stop the rape * * *.” Id. at ¶ 59. The stepdaughter’s testimony
included statements such as, “‘I felt if I didn’t do [what he commanded], he was going
to do it anyways,’” “‘If I would disobey him, he would definitely start yelling [and
I’d be afraid he would hurt me or my mother],’” and “‘[I]f I told my mom she would
have ended up asking him about it, he would have denied it, and she wouldn’t believe
me.’” Id. This testimony indicated that the stepdaughter “was afraid of [the
defendant’s] temper and was resigned to the helplessness of a child who expected no
3
We note that Horn was decided by the Supreme Court over a year after the State obtained its indictment
against York but a year before the case went to trial. In spite of the pronouncement in Horn, it does not
appear the State modified its theory of the case in any fashion. Further, neither party relied on Horn in the
trial court or in their arguments on appeal.
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adult would believe her about what her step-father did to her.” Id. Regarding the
defendant’s conviction for raping his step-niece, the Sixth District highlighted the
step-niece’s testimony that “[s]he felt she had no choice but to obey [the defendant]
‘because he was family.’” Id. at ¶ 61. The Sixth District ultimately affirmed the
defendant’s convictions, concluding that the State had presented sufficient evidence
from which the jury could conclude that the ability of the stepdaughter and step-niece
to resist or consent was “substantially impaired because of a mental or physical
condition of which appellant knew or should have known.” Id. at ¶ 60, 62.
{¶76} The defendant then appealed the Sixth District’s decision to the
Supreme Court of Ohio. In its decision, the Supreme Court noted that the counts of
rape had been affirmed on the basis that the defendant’s “familial relationship” with
his stepdaughter and step-niece had resulted in substantial impairment. 159 Ohio
St.3d 539, 2020-Ohio-960, at ¶ 4. The court observed that “a familial relationship
may be considered to prove rape by force,” and it emphasized previous decisions
holding that “in a situation involving a parent-child relationship and a rape allegation,
‘[f]orce need not be overt and physically brutal, but can be subtle and psychological.’”
Id. at ¶ 8, quoting State v. Eskridge, 38 Ohio St.3d 56, 58 (1988). However, the issue
was whether a familial relationship is a “mental or physical condition,” not whether
the facts supported a theory of rape by force, and the court “conclude[d], without
prescribing exact definitions for either ‘familial relationship’ or ‘mental or physical
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condition,’ that a familial relationship is not a mental or physical condition” within
the meaning of R.C. 2907.02(A)(1)(c). Id. at ¶ 8, 12. Therefore, the court reversed
the Sixth District’s judgment “to the extent that the judgment was based on [the
defendant’s] familial relationship with [his stepdaughter and step-niece].”4 Id. at ¶
13.
{¶77} In this case, the State’s “age of youth” theory is much like, if not the
same as, the “familial relationship” theory rejected by the Supreme Court of Ohio in
Horn. Indeed, the State at times plainly argued that it was the “family dynamic” that
caused M.J.’s and B.J.’s substantial impairment. Like the “familial relationship” in
Horn, “age of youth” is not something that affected M.J. and B.J. independently—
that is, something suffered by the victims without reference to their home life. See
id. at ¶ 10. Instead, “age of youth” existed only by reference to the dysfunctional
family dynamic and to M.J.’s and B.J.’s relationships with York, Sheri, Jeff, and other
family members within the context of that dynamic. See id. As it was clear to the
court in Horn that a “familial relationship” is not a “mental or physical condition,” it
is equally clear to us that “age of youth” as used by the State in this case is not a
“mental or physical condition.” See id. at ¶ 11. Therefore, under the particular facts
of this case, the State cannot prove beyond a reasonable doubt that York violated R.C.
4
The defendant’s rape conviction relating to his stepdaughter was reversed in its entirety, but because the
Sixth District had found an alternative basis to support the rape conviction relating to the defendant’s step-
niece, the case was remanded for the Sixth District to consider whether the alternative basis was sufficient to
support the conviction. Horn at ¶ 13.
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2907.05(A)(5) based on its theory that “age of youth” was the condition that caused
M.J.’s and B.J.’s substantial impairment. Id. at ¶ 12. Accordingly, we conclude that
insufficient evidence supports York’s convictions on Counts Four and Six. While the
evidence of the physical and psychological forces brought to bear on M.J. and B.J.
might have supported a prosecution for gross sexual imposition by force, the State
opted not to indict York under that theory. See id. at ¶ 8.
b. York’s conviction on Count Three is supported by sufficient evidence because
the State presented evidence supporting a finding that M.J. was sleeping when
York engaged in sexual conduct with her.
{¶78} As explained above, in determining whether sufficient evidence
supports York’s conviction on Count Three, we may consider whether the State
presented evidence that M.J. was substantially impaired by something other than “age
of youth.” After review, we find that the State did present such evidence.
{¶79} In M.J.’s video-recorded forensic interview at the CAC, which was
admitted as evidence in York’s trial, M.J. described an incident that happened when
she was approximately 15 years old. During that incident, she was sleeping on the
couch in the family trailer when she awoke to York laying on top of her. Shortly after
she awoke, York got off of her. M.J. then observed York pull up his boxer shorts.
M.J.’s underwear was pulled down around her ankles, and she felt pain in her vagina.
{¶80} Construing this evidence in a light most favorable to the prosecution, we
conclude that York’s conviction on Count Three is supported by sufficient evidence.
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From M.J.’s statements, it is clear that she was asleep when the incident began. “[T]he
courts of appeals have ‘concluded that sleeping is a “physical condition” that
substantially impairs a victim’s ability to resist for purposes of rape in violation of
R.C. 2907.02(A)(1)(c).’” State v. Stevens, 3d Dist. Allen No. 1-14-58, 2016-Ohio-
446, ¶ 13, quoting State v. Wine, 3d Dist. Auglaize No. 2-12-01, 2012-Ohio-2837, ¶
50. Moreover, a jury can reasonably conclude that the defendant knew the victim was
substantially impaired if evidence is presented that the victim was sleeping. See State
v. Anderson, 6th Dist. Wood No. WD-04-035, 2005-Ohio-534, ¶ 41. Thus, on this
evidence, a reasonable jury could conclude both that M.J.’s ability to resist was
substantially impaired by a physical condition at the time of this incident and that
York knew that M.J.’s ability to resist was substantially impaired.
{¶81} Furthermore, M.J.’s statements support a reasonable inference that York
engaged in sexual conduct, specifically vaginal intercourse, with M.J. during this
incident. During the interview, M.J. did not explicitly say that York had penetrated
her vagina. Nonetheless, from the circumstances described by M.J.—York laying on
top of M.J., York putting his boxer shorts back on after getting off of M.J., M.J.’s
underwear being around her ankles, and M.J.’s experience of vaginal pain—it can be
rationally inferred that York inserted his penis into M.J.’s vagina during this incident.
See State v. Gawron, 7th Dist. Belmont No. 20 BE 0009, 2021-Ohio-3634, ¶ 81
(concluding that where a video showed the defendant pushing the victim’s head
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toward the defendant’s lap, fellatio could be inferred from the movements depicted in
the video even though the video did not specifically show sexual conduct). Finally,
it is undisputed that M.J. is not, and was not, York’s spouse. Accordingly, we
conclude that sufficient evidence supports York’s conviction for rape in violation of
R.C. 2907.02(A)(1)(c) as charged in Count Three of the indictment.
{¶82} York’s second assignment of error is sustained in part and overruled in
part.
D. Third Assignment of Error: Are York’s convictions on Counts One, Two,
and Three against the manifest weight of the evidence?
{¶83} In his third assignment of error, York argues that his convictions are
against the manifest weight of the evidence.
i. Standard for Manifest-Weight-of-the-Evidence Review
{¶84} In determining whether a conviction is against the manifest weight of
the evidence, a reviewing court must examine the entire record, “‘weigh[] the
evidence and all reasonable inferences, consider[] the credibility of 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), quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A
reviewing court must, however, allow the trier of fact appropriate discretion on
matters relating to the weight of the evidence and the credibility of the witnesses.
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State v. DeHass, 10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight
standard, “[o]nly in exceptional cases, where the evidence ‘weighs heavily against the
conviction,’ should an appellate court overturn the trial court’s judgment.” State v.
Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v. Hunter,
131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.
ii. York’s convictions on Counts One, Two, and Three are not against the
manifest weight of the evidence.
{¶85} In addition to the convictions discussed under York’s second
assignment of error, York was convicted of one count of rape in violation of R.C.
2907.02(A)(1)(b) (Count One) and one count of gross sexual imposition in violation
of R.C. 2907.05(A)(4) (Count Two). R.C. 2907.02(A)(1)(b) and 2907.05(A)(4)
prohibit engaging in sexual conduct or sexual contact, respectively, with another who
is not the spouse of the offender when the other person is less than thirteen years of
age, whether or not the offender knows the age of the other person. Given our
resolution of York’s second assignment of error, the question before us is limited to
whether York’s convictions on Counts One and Two, as well as York’s conviction
for rape in violation of R.C. 2907.02(A)(1)(c) as charged in Count Three, are against
the weight of the evidence.
{¶86} Each of these convictions relates to abuse allegedly perpetrated by York
against M.J. In arguing that these convictions are against the manifest weight of the
evidence, York simply maintains that M.J. was not a credible witness. He specifically
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notes testimony from Sheri and Jeff that M.J. had a history of being dishonest, that
her story changed over time, that he was rarely alone with M.J., and that he was not
even residing in the home during the time frame of some of the alleged abuse. York
contends that in light of these credibility issues and the “absence of any objective or
forensic evidence,” the “evidence weighed strongly in favor of acquittal.”
{¶87} “When there is a conflict in the testimony of witnesses, it is for the trier
of fact to determine the weight and credibility to be given to such evidence.” State v.
Robinson, 12th Dist. Butler No. CA2018-08-163, 2019-Ohio-3144, ¶ 29. The jury
may “take note of any inconsistencies in the testimony and resolve them accordingly,
believing all, part, or none of each witness’s testimony.” State v. Lark, 12th Dist.
Fayette No. CA2018-03-004, 2018-Ohio-4940, ¶ 29. Ultimately, “‘a conviction is
not against the manifest weight of the evidence because the trier of fact believed the
state’s version of events over the defendant's version.’” State v. Smith, 3d Dist.
Marion No. 9-20-50, 2021-Ohio-3404, ¶ 26, quoting State v. Ferrell, 10th Dist.
Franklin No. 19AP-816, 2020-Ohio-6879, ¶ 59.
{¶88} In this case, York’s trial counsel thoroughly attacked M.J.’s credibility,
as well as the credibility of many of the State’s other witnesses. Through cross-
examination of Sheri and Jeff, as well as through the testimony of D.J. and Simpson,
the jury was provided with many potential bases upon which to discount M.J.’s
allegations and accept York’s claim that, if the abuse occurred at all, it was perpetrated
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by M.J.’s maternal grandfather. The fact that the jury chose to believe M.J. despite
York’s attempts to discredit her does not render York’s convictions against the
manifest weight of the evidence.
{¶89} York’s third assignment of error is overruled.
E. Sixth Assignment of Error: Did York receive ineffective assistance of
counsel?
{¶90} In his sixth assignment of error, York argues that he received ineffective
assistance of counsel. In support of his argument, York points to no fewer than 11
examples of his trial counsel’s supposed ineffectiveness.
i. Ineffective-Assistance-of-Counsel Standard
{¶91} “In criminal proceedings, a defendant has the right to effective
assistance of counsel under both the United States and Ohio Constitutions.” State v.
Evick, 12th Dist. Clinton No. CA2019-05-010, 2020-Ohio-3072, ¶ 45. A defendant
asserting a claim of ineffective assistance of counsel must establish: (1) counsel’s
performance was deficient or unreasonable under the circumstances; and (2) the
deficient performance prejudiced the defendant. State v. Kole, 92 Ohio St.3d 303,
306 (2001), citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052(1984). In order to show counsel’s conduct was deficient or unreasonable, the
defendant must overcome the presumption that counsel provided competent
representation and must show that counsel’s actions were not trial strategies prompted
by reasonable professional judgment. Strickland at 689. Counsel is entitled to a
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strong presumption that all decisions fall within the wide range of reasonable
professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675 (1998). Tactical or
strategic trial decisions, even if unsuccessful, do not generally constitute ineffective
assistance of counsel. State v. Frazier, 61 Ohio St.3d 247, 255 (1991). Rather, the
errors complained of must amount to a substantial violation of counsel’s essential
duties to his client. See State v. Bradley, 42 Ohio St.3d 136, 141-142 (1989).
{¶92} Prejudice results when “‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.’” Bradley at 142, quoting Strickland at 694. “‘A reasonable probability is
a probability sufficient to undermine confidence in the outcome.’” Id., quoting
Strickland at 694.
ii. York failed to establish that he received ineffective assistance of counsel.
{¶93} Initially, we note that many of York’s ineffective-assistance-of-counsel
arguments have been mooted or effectively determined through our resolution of his
other assignments of error. For example, York argues that his indictment was
defective with respect to Counts Four and Six and that his trial counsel was ineffective
for failing to move to dismiss those counts. However, having concluded that the State
did not present sufficient evidence to support York’s convictions on Counts Four and
Six, we need not consider his trial counsel’s effectiveness in this regard. Similarly,
York maintains that his trial counsel was ineffective for failing to object to testimony
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about his alleged drug use, drug sales, and suicide attempt, but by concluding that the
trial court did not commit plain error by allowing the State to elicit testimony on these
topics, we have preempted these arguments.
{¶94} Furthermore, to the extent that viable claims of ineffective assistance of
counsel might remain, we can quickly dispose of them. After listing various instances
of his trial counsel’s purportedly deficient performance in his appellate brief, York
states that, but for this deficient performance, he “would not have been unfairly
prejudiced by the jury’s exposure to irrelevant, inadmissible, and highly prejudicial”
evidence. He then declares that “[i]t is unquestionable that the outcome of [his] trial
would have been different but for trial counsel’s deficient performance.” To sustain
a claim of ineffective assistance of counsel, the defendant is required to affirmatively
establish prejudice. State v. Hill, 4th Dist. Athens No. 16CA3, 2018-Ohio-67, ¶ 43.
Bare claims of prejudice or “[c]onclusory statements that the outcome would have
been different, without more, are not enough to carry a defendant’s burden on the
issue of prejudice.” State v. Williams, 1st Dist. Hamilton No. C-180588, 2020-Ohio-
1368, ¶ 22. As York has done little more than baldly assert prejudice, he has failed
to carry his burden on this issue. Accordingly, we conclude that York has not
demonstrated that he received ineffective assistance of counsel.
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{¶95} York’s sixth assignment of error is overruled.
F. First Assignment of Error: Were Counts Four and Six of the indictment
fatally defective?
{¶96} In his first assignment of error, York argues that Counts Four and Six of
the indictment are void because the indictment failed to include all essential elements
of the crimes charged. However, through our previous conclusion that York’s
convictions on Counts Four and Six are not supported by sufficient evidence, York’s
first assignment of error has been rendered moot, and we will not address it. App.R.
12(A)(1)(c); see State v. Gideon, 165 Ohio St.3d 156, 2020-Ohio-6961, ¶ 26 (“[A]n
assignment of error is moot when an appellant presents issues that are no longer live
as a result of some other decision rendered by the appellate court.”).
IV. Conclusion
{¶97} For the foregoing reasons, we find the first assignment of error to be
moot and find no error prejudicial to York with respect to his third, fourth, fifth, and
sixth assignments of error. However, having found error prejudicial to York with
respect to his second assignment of error, that assignment of error is sustained in part
(as it relates to Counts Four and Six) and overruled in part (as it relates to Count
Three). Consequently, we reverse the judgment of the Union County Court of
Common Pleas with respect to York’s convictions on Counts Four and Six and
remand for further
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proceedings consistent with this opinion. In all other respects, we affirm.
Judgment Affirmed in Part,
Reversed in Part, and
Cause Remanded
ZIMMERMAN, P.J. and SHAW, J., concur.
/jlr
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