State v. Gordon
2017 Ohio 5796
Ohio Ct. App.2017Background
- Defendant Bruce L. Gordon, stepfather to three minor girls (born 2006, 2007, 2009), was indicted on two counts of rape (R.C. 2907.02(A)(1)(b)) and three counts of gross sexual imposition (R.C. 2907.05(A)(4)); jury convicted on all counts.
- Allegations included forcible sexual conduct against two girls under age ten and repeated sexual contact with all three; CARE Center interviews, counselor testimony, and in-custody statements/one-party phone call were admitted at trial.
- No physical/forensic evidence (phone data unrecoverable; no rape kit collected due to delay); defendant gave statements admitting inappropriate touching in a jail phone call and police interview but later recanted at trial.
- Defense argued insufficient evidence, coaching by mother, prior exposure of children to sexualized material, and investigative delays undermining credibility; defendant also raised spousal-privilege objection to admission of the recorded phone call.
- Trial court sentenced defendant to an aggregate term of 55 years to life; on appeal the Ninth District affirmed convictions but remanded for resentencing on consecutive-term procedural defect.
Issues
| Issue | State's Argument | Gordon's Argument | Held |
|---|---|---|---|
| Sufficiency and manifest weight of evidence for rape and GSI | Victim interviews, trial testimony, counselors’ opinions, and defendant’s statements suffice to prove elements beyond a reasonable doubt | Lack of physical evidence, alleged coaching, and children’s prior exposure to sexualized material render testimony unreliable | Convictions supported by sufficient evidence and not against manifest weight; assignments overruled |
| Admissibility of recorded one-party jail/phone call (spousal privilege) | Phone call admissible (not confidential/coverture ended; exception for neglect/cruelty to children); even if error, harmless because similar police interview admitted | Admission violated spousal-communication privilege (R.C. 2945.42) and should be excluded | No reversible error; admission upheld (alternate holdings: Perez discussed but admission via spouse’s testimony not fatal; privilege exception for cruelty applies) |
| Post-release control advisement at sentencing | Court’s statement that defendant "will" be on five years post-release control satisfied mandatory-notice requirement; not required to recite R.C. 2929.141(A)(1) penalties | Trial court failed to state the word "mandatory" and omitted R.C. 2929.141(A)(1) consequences, rendering post-release control advisement defective | Advisement adequate ("will" conveys mandatory nature); failure to recite R.C. 2929.141 penalties not reversible error under existing Ohio precedent; assignment overruled |
| Imposition of consecutive sentences and sentencing entry requirements | Court complied in entry with R.C. 2929.14(C) findings | Trial court did not make required statutory consecutive-sentence findings at the sentencing hearing | Reversed in part: consecutive sentences vacated and case remanded for resentencing because Bonnell requires findings be made at the hearing and incorporated in the entry |
Key Cases Cited
- State v. Jenks, 61 Ohio St.3d 259 (discusses sufficiency standard for criminal convictions)
- State v. Thompkins, 78 Ohio St.3d 380 (framework for manifest-weight review)
- State v. Bonnell, 140 Ohio St.3d 209 (requiring R.C. 2929.14(C) findings at sentencing hearing for consecutive terms)
- State v. Pelfrey, 112 Ohio St.3d 422 (verdict form must indicate offense degree or aggravating element when degree depends on additional elements)
- State v. Perez, 124 Ohio St.3d 122 (admission of recorded spousal communications analyzed; distinguishes communications introduced other than by spouse’s testimony)