2009 Ohio 1707 | Ohio Ct. App. | 2009
{¶ 2} In his second assignment of error, W.B. contends that the trial court erred in admitting those portions of his confession where he admitted to committing multiple sexual acts, including digital penetration, with the victim. He contends that the State failed to produce independent evidence of the corpus delicti of the crimes because it failed to show that he committed more than one sexual act or that penetration occurred. However, the State clearly satisfied the minimal foundational requirement of the corpus delicti rule, i.e., it providedsome evidence outside W.B.'s confession that tends to establishsome material elements of the allegations of rape. The victim testified that when she was 5 years old, her brother, W.B., touched her "privates" with his finger and that it "hurt." This statement implies penetration. The evidence also showed that S.H.'s paternal grandmother noticed that the victim's vaginal area was red, another indication that sexual conduct may have occurred.
{¶ 3} But the State's success in providing independent evidence of the existence of more than one instance of sexual misconduct is not so clear. The victim, who was only six years old at the trial, testified, "He's not touched me one, only time[.]" in response to the question, "Did he touch you more than one time?" This answer is subject to different interpretations. It could mean, "No, he only touched me once." Or, it could also reasonably be construed to say, "No, he didn't touch me only once." Because of the de minimis nature of the rule and we are dealing with a six-year-old child who was clearly intimidated due to the circumstances, we conclude her response tends to establish the existence of multiple sex acts. We do so in light of the Supreme Court of Ohio's admonishment against applying the rule with "dogmatic vengeance." Based on this corroborating evidence, we conclude the trial court's finding that the State satisfied the *3 corpus delicti rule is supported by some competent credible evidence. Thus, the court properly admitted W.B.'s entire confession.
{¶ 4} In his third assignment of error, W.B. contends that his convictions are based on insufficient evidence because the State failed to prove the corpus delicti of the crimes and failed to produce affirmative evidence that the victim was not his spouse. However, because the State satisfied the corpus delicti rule, W.B.'s entire confession was properly admitted as substantive evidence against him. W.B. admitted that he engaged in sexual activity with his 5-year-old sister on several different occasions and that the activity progressed over time. He admitted that he touched her vaginal area with his hand and penis and also gave details about another incident involving digital penetration. Moreover, the State presented strong circumstantial evidence that the victim was not his spouse; the victim identified W.B. as her brother and testified that he sexually assaulted her when she was 5 years old. Viewing this evidence in a light most favorable to the prosecution, we believe that the court could have found beyond a reasonable doubt all of the essential elements of the offenses charged.
{¶ 5} In his fourth assignment of error, W.B. contends that his convictions are against the manifest weight of the evidence because his confession was unreliable. W.B. argues that he recanted, claiming that that he has a "learning disability" and that he was intimidated. However, the court heard testimony from several witnesses, including W.B., concerning the circumstances surrounding his confession. There is no evidence that he was threatened, mistreated, or induced to confess. And although W.B. testified that he did not understand what was happening, the trial court was in the best position to judge his credibility. Because the court could properly believe the State's evidence and *4 reasonably discount his recantation, we cannot say that it clearly lost its way in finding him guilty.
{¶ 6} In his fifth assignment of error, W.B. argues that the court improperly admitted other acts evidence when it permitted his mother to testify about incidents involving his inappropriate touching of girls at school. However, the trial court found that despite W.B.'s counsel failure to object, the testimony was inadmissible and stated that it would not consider it for any purpose. And the defense elicited the same evidence from another witness during cross-examination. Because W.B. fails to demonstrate any error, plain or otherwise, his argument lacks merit.
{¶ 7} In his sixth assignment of error, W.B. contends that the trial court erred when it sentenced him to separate terms of commitment for his convictions for rape and gross sexual imposition because the crimes were allied offenses of similar import that should have merged. He bases this contention on the argument that the State failed to prove the corpus delicti of more than one crime. However, the evidence presented at trial showed that W.B. engaged in sexual activity with the victim on several different occasions. Because the evidence demonstrates that W.B. committed the offense of rape, i.e., digital penetration, and then on a different occasion committed the offense of gross sexual imposition, i.e., he touched her vagina with his penis, his convictions are not based on the "same conduct" and thus do not merge.
{¶ 9} S.H., who was six years old at the time of trial, identified W.B. as her brother and testified that "he touched me down here" with his finger and that it "hurt." She stated that the area "down there" was called "the privates." She also indicated through gesture that he touched her private parts with his finger. She testified that she was five years old at the time and that it happened in a bedroom at her mother's house. When asked if he touched her more than one time, she responded: "He's not touched me one, only time." And when asked if his finger touched her on the inside or outside, she said "outside."
{¶ 10} Sara Smallwood, a caseworker with the Clinton County Children Services ("CCCS"), testified that in February 2008, CCCS received a report concerning allegations that 15-year-old W.B. was sexually abusing his 5-year-old sister, S.H. After interviewing S.H. and other family members, Smallwood contacted Detective Kirk. Smallwood testified that she and Detective Kirk interviewed W.B. in a conference room at the Justice Center after obtaining permission from his mother. She testified that Detective Kirk advised W.B. that he was not under arrest and was free to go at any time. She also testified that W.B. indicated that he understood and referenced the television show "COPS." She stated that during the interview, which lasted less than an hour, W.B. never requested to speak to his mother, who was waiting in the hallway.
{¶ 11} According to Smallwood, W.B. admitted that he had touched S.H. in a sexually inappropriate manner. She testified that he described one incident where he *6 "jacked off in between her legs and then sent her out of the room so he would finish up." He described another incident where he "fingered" her and demonstrated with his hand how he moved his finger; he later explained that his finger went inside of her up to his first knuckle. On one occasion his brother walked in and "caught him." Smallwood testified that W.B. indicated that one incident occurred while the family was living on Taylorville Road and another occurred while they were living in an apartment in Rainsboro. She stated W.B. indicated that the last time he had touched S.H. was in December 2007. On cross-examination she indicated W.B. had admitted to getting in trouble at school for improperly touching a female student.
{¶ 12} S.H.'s paternal grandmother and caregiver, testified that in January 2008, after S.H. had returned from a four-day visit at her mother's house, she was giving S.H. a bath and noticed that her vaginal area was red. After asking her what happened, the grandmother called and spoke to S.H.'s and W.B.'s mother and then told S.H. that she was not allowed to go back to her mother's house. She testified that S.H.'s father took S.H. to the doctor the next day for a previously scheduled appointment, but admitted that nobody mentioned the vaginal redness to the doctor. She testified that later that week her attorney advised her to contact children services, which she did.
{¶ 13} During her testimony, W.B.'s mother referenced prior incidents involving W.B. and girls at school. Counsel for W.B. failed to object. On cross-examination, the mother testified that she took her son to the Justice Center the day he was interviewed. She testified that Smallwood and Detective Kirk first interviewed her and then asked her for permission to talk to W.B. She testified that she asked them whether she needed to *7 get an attorney either for herself or W.B. and that she thought Smallwood responded that she did not need one.
{¶ 14} Detective Denny Kirk with the Highland County Sheriff's Office testified that he became involved in the investigation in February 2008 after receiving information from Smallwood, who later made arrangements for the family to come in for an interview. Detective Kirk testified that he interviewed W.B. at the Sheriff's Office in a conference room off the lobby area. He stated that prior to the interview, he spoke with W.B.'s mother and explained that he wanted to speak to W.B. about some allegations against him involving S.H. He testified that she agreed and that at no point did she ask for an attorney. He stated that his interview with W.B. began at 12:17 p.m. and ended at 1:13 p.m. He testified that he explained the purpose of the interview to W.B. and advised him that his mother was in the lobby, he was not in custody, he could leave the room at any time, and he did not have to answer any of his questions. According to Detective Kirk, W.B. indicated that he understood and stated that he watched "COPS" and knew things he said could be used against him, at which point Detective Kirk agreed. Detective Kirk testified that at no point during the interview did W.B. ask for his mother or an attorney. He also testified that he was dressed in plain clothes and that he never displayed his gun or handcuffs.
{¶ 15} Detective Kirk testified that after initially denying any wrongdoing, W.B. later admitted that he had engaged in sexual activity with S.H. on several occasions and that the activity had progressed over time. Detective Kirk testified that W.B. indicated that "things started" when they lived in their Rainsboro home and continued at different places, including their homes near Rockey Fork Lake and on Taylorville Road. According to *8 Detective Kirk, W.B. stated that the activity initially started with him picking her up and touching her between her legs on top of the clothing; the activity then progressed to W.B. actually touching S.H. with his hand and later placing his penis between her legs on her bare vagina. According to Detective Kirk, W.B. indicated that his penis got "stiffy" and that he laid it between her legs on the outside of her vagina. W.B. described one incident where he became excited enough that he was going to ejaculate, so he asked her to leave and went to the bathroom and "finished up." Detective Kirk further testified that W.B. indicated that he also inserted his finger into her vagina; W.B. demonstrated with his hand that he had inserted his finger into S.H. up to his first knuckle. He testified that W.B. indicated that the last time he touched her was in December 2007.
{¶ 16} W.B. testified on his own behalf and denied ever touching S.H. in a sexually inappropriate manner. He testified that prior to his interview, Detective Kirk and Smallwood never explained to him the purpose of the interview and that at some point he became "scared" and was "just agreeing" with them because he was "not sure what was going on." He testified that he did not ask for his mother because did not want to "make things worse." He testified that he was in the 9th grade, but that he had previously failed two grades and that he was in special education classes; he stated that he has difficulty learning and understanding things. On cross-examination, W.B. admitted that he demonstrated to Detective Kirk and Smallwood with his hand how he inserted his finger into S.H.'s vagina. He also admitted that he gave specific details about the sexual activity, but claimed that he was "making it up" to get out of the "ordeal" quicker. He testified that Detective Kirk never showed him his gun, pushed him around, yelled at him, displayed handcuffs, or threatened him in any way. He also stated that he never told *9 Detective Kirk or Smallwood that he had any learning disability or that he did not understand.
{¶ 17} The court overruled W.B.'s motion to suppress from the bench and found W.B. delinquent of both counts. At the dispositional hearing, the court ordered that he be committed to the Ohio Department of Youth Services for a minimum term of two years on the rape count and a minimum term of six months on the gross sexual imposition count, to run consecutively. W.B. now appeals.
FIRST ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN NOT SUPPRESSING THE JUVENILE-APPELLANT'S CONFESSION (8/14/08 Tr. 64-95 and 111-17).
SECOND ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED WHEN ADMITTING THAT PORTION OF THE JUVENILE-APPELLANT'S CONFESSION TO PENETRATION AND MULTIPLE ACTS IN THE ABSENCE OF THE CORPUS DELICTI CONCERNING PENETRATION AND MULTIPLE ACTS OF ALLIED OFFENSES OF SIMILAR IMPORT (Id.).
THIRD ASSIGNMENT OF ERROR
THE ADJUDICATION OF DELINQUENCY IS BASED UPON INSUFFICIENT EVIDENCE (Id. pp. 13-14, passim).
FOURTH ASSIGNMENT OF ERROR
THE ADJUDICATION OF DELINQUENCY IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE (Id. passim).
FIFTH ASSIGNMENT OF ERROR
*10IMPROPER OTHER-ACTS EVIDENCE WAS INTRODUCED TO THE PREJUDICE OF THE JUVENILE-APPELLANT (Id. pp. 57-58).
SIXTH ASSIGNMENT OF ERROR
THE JUVENILE-APPELLANT WAS TWICE PLACED IN JEOPARDY AND OTHERWISE IMPROPERLY SENTENCED BY THE IMPOSITION OF CONSECUTIVE TERMS OF COMMITMENT TO THE DEPARTMENT OF YOUTH SERVICES FOR ALLIED OFFENSES OF SIMILAR IMPORT INVOLVING NEITHER SEPARATE INCIDENTS NOR SEPARATE AREAS OF THE VICTIM'S BODY (Id. passim; 8/18/08 Tr. Passim; Final Judgment Entry).
{¶ 22} The question of whether an individual is "in custody" is a mixed question of law and fact entitled to independent review. SeeThompson v. Keohane (1995),
{¶ 23} In the past we have incorporated a non-exhaustive list of factors courts should use to answer this question. In State v.Boyd, Adams App. No. 02CA744, 2003-Ohio-903, at ¶ 9, we included some factors that are prone to result in a subjective analysis, i.e. the age, mentality and prior criminal experience of the accused. See, also,In re Sturm, Washington App. No. 05CA35,
{¶ 24} The reviewing court must examine all of the circumstances surrounding the interrogation, but "the ultimate inquiry is simply whether there [was] a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." *13 California v. Beheler (1983),
{¶ 25} The trial court overruled W.B.'s oral motion to suppress, finding:
As to the, uh, oral motion to suppress, by Counsel for the juvenile, the Court will overrule and deny the same. It's very clear, the evidence is very compelling that, uh, [W.B.] was not in the custody of law enforcement when he was questioned at the Justice Center. His mother voluntarily brought him there. Uh, Detective Kirk made it very clear, uh, which [W.B.], co-operated, [sic] there were no threats, no promises, uh, and it was a total, voluntary, uh, situation by [W.B.] to be at the Justice Center, again, to be brought in by his mother. And as Detective Kirk stated, he was free to leave at any time and did not have to answer any questions. So, Miranda does not apply in that scenario and, um, we, I find that the statements made, [W.B.], by you, the end of February, of this year, I believe testimony was, somewhere around February 29th, um was voluntary and will not be suppressed. So, that motion, by your attorney on your behalf is overruled and denied.
{¶ 26} After viewing the totality of the circumstances, we agree with the trial court that a reasonable juvenile in W.B.'s position would have understood that he was not in custody at the time of the interview. First, W.B.'s mother, not the police, brought him to the Justice Center. And she did so at the request of a caseworker, not a detective. Prior to the interview, Detective Kirk advised W.B. that he was not in custody, he was not under arrest, and he was free to go at any time. While W.B. claims that he has difficulty learning and understanding, he never told Detective Kirk or Smallwood that he did not understand and never requested to speak to this mother, who was just outside the room. Despite his claims that he has a "learning disability," there is nothing in the record that indicates that a *14 reasonable person in his situation would lack the intelligence or maturity to understand when Detective Kirk advised him that he was free to leave at any time.
{¶ 27} The interview was of relatively short duration, lasting less than an hour, and the evidence indicates it was not intense. It occurred in a conference room off the lobby area, Detective Kirk was dressed in plain clothes, and made no overt showing of authority beyond asking questions. Additionally, there is no evidence that W.B. suffered from any physical deprivation or mistreatment during the questioning, nor was he threatened or induced to confess. Thus, we conclude W.B.'s freedom of movement was not restrained to the degree associated with a formal arrest.
{¶ 28} Based on our review of the record, we conclude that W.B.'s statements to Detective Kirk were not the product of custodial interrogation. Because W.B. was not in custody, Detective Kirk was not required to advise him of his Miranda warnings. In reaching this conclusion, we reject W.B.'s contention that State v. Buchholz (1984),
{¶ 30} He also argues that rape and gross sexual imposition are allied offenses of similar import. Because he raises this argument as a separate assignment of error, we will address it later.
{¶ 32} In this context the corpus delicti rule is a foundational requirement for the admissibility of the confession. See State v.Van Hook (1988),
{¶ 34} "The quantum or weight of such outside or extraneous evidence is not of itself to be equal to proof beyond a reasonable doubt, nor even enough to make it a prima facie case. It is sufficient if there issome evidence outside of the confession that tends to provesome material element of the crime charged." Maranda at paragraph two of the syllabus. (Emphasis sic); see, also, Edwards, supra. That evidence may be direct or circumstantial. Maranda at 371; State v. Nicely (1988),
{¶ 35} In Edwards, supra, the Supreme Court of Ohio noted the historical origins of the corpus delicti rule were designed to protect an accused from being convicted of a crime that never occurred. The court stated that, in light of the "vast number of procedural safeguards protecting the due-process rights of criminal defendants, the corpusdelicti rule is supported by few practical or social-policy considerations." (Emphasis sic.) Id. at 35-36. Accordingly, there is "little reason to apply the rule with a dogmatic vengeance." Id.; see, also, State v. Ferris (Jan. 29, 2001), Lawrence App. No. 00CA12,
{¶ 36} In State v. Ledford (Jan. 24, 2000), Clinton App. No. CA99-05-014,
{¶ 37} We recently considered Ledford when addressing a similar argument in Hofer, supra. There, the defendant argued that his trial counsel was deficient for failing to object to the admission of his confession on the basis that the state had failed to produce any substantive evidence of the corpus delicti of the crime where he was charged with performing cunnilingus on a two-year-old girl. In concluding that the state presented some evidence outside of the confession that tended to prove some material elements of rape, we stated:
Here, as in Ledford, the victim's Mother's testimony contains some evidence of the elements of Hofer's crime. As she entered the apartment, she saw Hofer covered only with a blanket. He appeared to have an erection. She saw her naked two-year-old daughter on top of Hofer with her legs down towards Hofer's stomach and her vagina up on Hofer's face. Based on what the mother saw, she testified that she talked to her family, which led to a call to police and a medical examination of the child by a qualified SANE nurse.
Hofer at ¶ 39.
{¶ 38} In the present case, unlike in Ledford and Hofer, the victim actually testified concerning the rape allegations. S.H. testified that when she was 5 years old, her brother, W.B. touched her "down here" with his finger and that it "hurt." She stated that *19 the area "down there" was called "the privates." She also indicated through gesture that he touched her genitals with his finger. She stated that it happened in a bedroom at her mother's house. Moreover, the paternal grandmother testified that while giving S.H. a bath following a visit at her mother's house, she noticed that S.H.'s vaginal area was red. After asking S.H. what happened, the grandmother called and spoke to the children's mother, who testified that the grandmother called her and accused her son of touching S.H. Following this conversation with the mother, the grandmother told S.H. that she was not allowed to go back to her mother's house. Later that week, the grandmother met with her attorney, who advised her to contact children services, which she did. After interviewing S.H., Smallwood contacted Detective Kirk to schedule an interview with W.B. Looking at the totality of this evidence and considering the inferences that may logically be drawn from it, the trial court could properly conclude that W.B. inserted his finger into S.H.'s genitals. This inference is some evidence that tends to establish the penetration element of rape.
{¶ 39} However, W.B.'s contention that the State failed to establish multiple acts, i.e., the gross sexual imposition allegations, is not so easily discounted. He contends S.H. testified that he touched her only once. Our review of the testimony leads us to a different conclusion because S.H.'s testimony is ambiguous at best. On direct examination, the prosecutor asked S.H., "Did he touch you more than one time?" S.H. responded, "He's not touched me one, only time." The trial court was dealing with a six-year-old witness who was intimidated by the proceeding and the presence of her brother, the accused, her mother and virtual strangers. Thus, it is difficult to say with any certainty whether her response meant, "No, he only touched me one time." Or, alternatively, "No, *20 he did not touch me only one time." While we would not expect most adults to speak in convoluted terms using a double negative to answer a simple "yes" or "no" question, the same cannot be said of the six-year-old victim in this situation. Because we were not there to glean the true meaning of her response from her tone, demeanor, body language, etc., we follow the Supreme Court's admonition inEdwards against applying the rule with "dogmatic vengeance." In other words, we leave it to the trial court to decide which of the two interpretations was more appropriate in light of the fact that a rational argument could be made for adopting either one. Because S.H.'s testimony could reasonably be construed by the trial court to indicate there was more than one incident of sexual contact, some evidence supports the finding that the minimal foundational requirement of independent corroboration was satisfied.
{¶ 40} The trial court correctly concluded the State met the foundational requirements of the corpus delicti rule, and W.B.'s entire confession was properly admitted.1 We overrule W.B.'s second assignment of error.
{¶ 42} 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 *21
whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. See, e.g., State v.Jenks (1991),
{¶ 43} The court found W.B. delinquent on one count of rape under R.C.
{¶ 44} The court also found him delinquent on one count of gross sexual imposition under R.C.
{¶ 45} We have already concluded that the State presented sufficient independent evidence to satisfy the foundational requirement of the corpus delicti rule. And because his entire confession was properly admitted, W.B.'s statements to Smallwood and Detective Kirkwood could be used as substantive evidence against him. Based on the victim's testimony, W.B.'s confession, and all of the other circumstantial evidence, we conclude that the State presented sufficient evidence upon which the court could have reasonably found the essential elements of these offenses of rape and gross sexual imposition.
{¶ 46} S.H. described an incident that occurred with W.B. at their mother's house when she was 5 years old. She testified that he touched her "privates" "down here" with his finger and that it "hurt." She stated that "down there" was her private parts. The evidence also shows that after Ms. Hines observed S.H.'s red vaginal area, S.H. made certain comments to her which prompted her to call and confront W.B.'s mother and ultimately contact children services. Then, based on statements S.H. made during her interview, Smallwood referred the matter to Detective Kirk, who interviewed W.B.
{¶ 47} Furthermore, W.B. admitted that he had engaged in sexual activity with his sister on several different occasions and that the activity had progressed over time. He indicated that "things started" when they lived in their Rainsboro home and continued at different places, including their homes near Rockey Fork Lake and on Taylorville Road. He admitted that he started by touching her between her legs on top of the clothing and *23 later progressed to touching her bare vagina with his hand and later his penis. He described one incident where his penis got "stiffy" and that he laid it between her legs on the outside of her vagina. He also stated that he "jacked off" between her legs and then sent her out of the room so he could "finish up." He described another incident where he "fingered" her and demonstrated with his hand how he inserted his finger into her vagina up to his knuckle. He stated that the "last time" he touched her was in December 2007.
{¶ 48} Thus, the State presented evidence that W.B. engaged in sexual activity with his 5-year-old sister on several different occasions. From the evidence presented, the court could reasonable conclude that W.B. committed the offense of rape when he engaged in sexual conduct, i.e. digital penetration, with his 5-year-old sister. The court could also have reasonably concluded that W.B. committed a separate offense of gross sexual imposition when, on a different occasion, he touched her vaginal area with his penis. And, while W.B. claims that there was no direct testimony that S.H. was not his spouse, the State presented strong circumstantial evidence to prove this element. The victim identified W.B. as her brother and testified the sexual activity occurred when she was only 5 years old; W.B. admitted that he was 15 years old when he sexually assaulted her. Viewing this evidence in a light most favorable to the State, the trial court could have reasonable found all of the essential elements to the crimes. Accordingly, we overrule W.B.'s third assignment of error.
{¶ 50} In determining whether a criminal conviction is against the manifest weight of the evidence, an appellate court must review 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. State v. Thompkins,
{¶ 51} Even in acting as a thirteenth juror we must still remember that the weight to be given evidence, and the credibility to be afforded testimony, are issues to be determined by the trier of fact. State v.Dye (1998),
{¶ 52} W.B.'s convictions are not against the manifest weight of the evidence. Based upon the facts we previously discussed, the State presented substantial direct and circumstantial evidence proving the essential elements of both the offenses of which W.B. was found delinquent. While W.B. argues that he recanted, claiming that he has a "learning disability" and that he was "scared," the court heard testimony from several witnesses concerning the circumstances surrounding his confession, including testimony from W.B. As we have already determined, there is no evidence to show that he was threatened, mistreated, or induced to confess. And the record fails to support W.B.'s assertion that he lacked the intelligence to understand what was happening. Moreover, determinations of credibility and weight of the testimony remain within the province of the trier of fact as long as they have some basis in reason and fact. See, State v. DeHass (1967),
{¶ 53} Given the victim's testimony, W.B.'s confession, and all of the circumstantial evidence presented in this case, any rational fact finder could have found, beyond a reasonable doubt, all of the essential elements of both the crimes charged. Accordingly, we overrule W.B.'s fourth assignment of error.
{¶ 55} Our standard of review is the well-recognized rule that the admission of evidence is within the sound discretion of the trial court.State v. Sage (1987),
{¶ 56} Evid. R. 404(B) controls the use of other acts evidence and states:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
{¶ 57} The admissibility of other acts evidence is carefully limited because of the substantial danger that the jury will convict the defendant solely because it assumes that the defendant has a propensity to commit criminal acts, or deserves punishment regardless of whether he or she committed the crime charged in the indictment. State v.Schaim (1992),
{¶ 58} In response to the State's questioning, W.B.'s mother testified:
Q. Okay. One last question. Um, have you had concerns with [W.B.] and other girls at school?
A. Not really, uh, as in what he's being blamed for, no.
Q. Okay. What do you mean by that? *27
A. Uh, such as the rape and stuff like that. The other sexual conduct, or whatever it is.
Q. Right. So, but, something else?
A. Uh, he's went and done a couple of touchings (spelled assaid), as in, you know, the butt and stuff like that, but he's got in trouble and he knows not to do it.
{¶ 59} W.B.'s trial counsel failed to object to this testimony at trial, waiving all but plain error. See State v. Loza (1994),
{¶ 60} First, defense counsel elicited testimony concerning the same conduct from Smallwood during cross-examination. Counsel asked for Smallwood's "recollection of the entire conversation" involving W.B.'s confession. In response, Smallwood recounted W.B.'s admission that he had gotten in trouble at school "for touching a girl." She provided a few additional details and at that point, the cat was out of the bag.
{¶ 61} More importantly, in a bench trial, a court is presumed to have considered only the relevant, material, and competent evidence.State v. Bays (1999),
I also want to state that there was some evidence submitted of [W.B.], maybe, possibly, having inappropriate contact or acts with other children at school. Totally inadmissible for this case. That should never have come out, although it wasn't objected to. Can't prove other acts. Can't prove there was a violation here of this case, by other acts, of similar nature, unless certain criteria was met, and that was not. So, I want to make the record VERY clear that those other acts and evidence are NOT being considered by this Court for ANY purpose, whatsoever. (Emphasis sic).*28
{¶ 62} Based on the foregoing, we reject W.B.'s argument that the court improperly considered other-acts evidence to his detriment.
{¶ 64} R.C.
(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all offenses, but the defendant may be convicted of only one.
{¶ 65} W.B. bases his contention on the argument that the State failed to prove the corpus delicti of more than one crime and argues that the evidence shows that the sole incident involved only one area of the victim's body. As previously discussed, however, the State presented evidence that showed that W.B. engaged in sexual activity with the victim on more than one occasion. The evidence proved that W.B. touched her vaginal area with his penis and then on a different occasion digitally penetrated her vagina. Because his convictions for rape and gross sexual imposition arise from conduct that occurred on different occasions, they were not for the "same conduct" and thus do not merge.
JUDGMENT AFFIRMED. *29
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Highland County Common Pleas Court, Juvenile Division, to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Kline, P.J. Abele, J.: Concur in Judgment and Opinion.