State v. Chisholm
2012 Ohio 3932
Ohio Ct. App.2012Background
- Chisholm was indicted for sexual conduct offenses including sexual battery, rape, and gross sexual imposition; jurors acquitted sexual battery and rape but found him guilty of attempted rape and gross sexual imposition, with concurrent sentences of six and five years.
- Appellant challenges the convictions and the trial court’s handling of merger, evidentiary, and instructional issues on appeal.
- Victim C.J. was twelve at the time of the alleged offenses; the incidents occurred in February 2010 at her mother’s apartment with Chisholm present.
- DNA and physical evidence (semen, amylase) linked Chisholm to the sexual offenses; C.J. testified about three separate intrusions, including an attempted rape with penetration on the third intrusion.
- The appellate court sustains the merger issue, and overrules the other challenged rulings, then remands for merger determination and potential election of sentences.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Merger of attempted rape and GSI | Chisholm argues failure to merge. | State contends merger not decided on record. | First assignment sustained; remanded for merger determination. |
| Grand-jury adequacy of cunnilingus testimony | Cunnilingus evidence not presented to grand jury. | Indictment covered sexual conduct; no prejudice shown. | Second assignment overruled. |
| Jury instruction on attempted rape and abandonment | Instruction flawed; abandonment defense not properly addressed. | Instruction acceptable; abandonment not preserved. | Third assignment overruled. |
| Weight of the evidence for attempted rape | Weight of the evidence supports conviction. | Evidence insufficient/contrary credibility. | Fourth assignment overruled. |
Key Cases Cited
- State v. Otten, 33 Ohio App.3d 339 (9th Dist.1986) (credibility and weight review rests with trier of fact)
- State v. Shue, 97 Ohio App.3d 459 (9th Dist.1994) (credibility determinations are for the trier of fact)
- Ostendorf-Morris Co. v. Slyman, 6 Ohio App.3d 46 (8th Dist.1982) (weighing evidence and witness credibility rests with jury)
- Crull v. Maple Park Body Shop, 36 Ohio App.3d 153 (12th Dist.1987) (credibility and conflicting testimony resolve in favor of jury)
- State v. Johnson, 128 Ohio St.3d 153 (2010) (allied offenses; conduct and same conduct test for merger)