In re M.P.
No. 93152
IN RE: M.P. A Minor Child
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. DL 08 127647
RELEASED: May 20, 2010
Timothy Young
State Public Defender
BY: Amanda J. Powell
Assistant State Public Defender
250 East Broad Street
Suite 1400
Columbus, Ohio 43215
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Catana Deskins
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
N.B. This entry is an announcement of the court’s decision. See App.R. 22(B) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(C) unless a motion for reconsideration with supporting brief per App.R. 26(A), or a motion for consideration en banc with supporting brief per Loc.App.R. 25.1(B)(2), is filed within ten days of the announcement of the court’s decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court’s announcement of decision by the clerk per App.R. 22(C). See, also, S.Ct. Prac.R. 2.2(A)(1).
{¶ 1} Defendant-appellant, M.P.,1 appeals his adjudication of delinquent. Finding no merit to the appeal, we affirm.
{¶ 2} In 2008, M.P. was charged with one count of rape against five-year-old R.R. After a competency hearing, the trial court found R.R. incompetent to testify. The matter proceeded to trial at which the following evidence was adduced.
{¶ 3} R.R.’s cousin, Shaquille Roberson (“Roberson”), was babysitting R.R. while R.R.’s mother, Luvennia McCoy (“McCoy”), was at work. Around 9 p.m., Roberson went downstairs and saw R.R. in the living room with M.P. R.R. was bent over on the couch with her pants down and her buttocks in the air. M.P. was standing over her with his hand on her waist and his penis exposed. M.P. quickly sat down on the couch and pulled his shirt down over his exposed penis. Roberson testified she grabbed R.R., and the little girl told her that M.P. had put his finger “in there.” M.P. told Roberson that the situation “was not how it looked like.”
{¶ 4} Roberson called McCoy on her cell phone, and McCoy returned home. McCoy testified that M.P. denied touching R.R. and further stated he told her that “he didn’t care what he had done. He don’t care about nothing.” She also testified that when she asked her daughter why she did not yell, R.R. told her that M.P. told her not to.
{¶ 5} McCoy took R.R. to the hospital. The nurse who performed the medical examination testified that R.R. had a freshly bruised hymen. The nurse testified that a hymen would not bruise on its own and it would have to experience some sort of blunt force trauma that would burst the small capillaries under the skin. The investigating social worker testified that R.R. told her that M.P. touched her “down there.”
{¶ 6} M.P. testified that he went into the dark living room with R.R. to watch television and was trying to find the remote to turn on the television. He said that the television “blinked” and he turned around and saw R.R. on the couch with her pants down. He asked her what she was doing, and she said she had to use the bathroom. He testified he turned slightly and that is when Roberson entered the room.
{¶ 7} The trial court adjudicated M.P. delinquent of attempted rape and, at disposition, committed him to the Ohio Department of Youth Services for a minimum of one year, maximum to his twenty-first birthday.
{¶ 8} M.P. appeals, raising the following assignments of error for our review:
“I. The juvenile court committed plain error and abused its discretion when [it] found [M.P.] delinquent of attempted rape in violation of the Fifth and Fourteenth Amendments to the United States Constitution; and Juvenile Rule 22(B) and Juvenile Rule 29(E) and (F).
“II. The trial court violated [M.P.’s] right to due process under the Fifth and Fourteenth Amendments to the United States Constitution, Article I, Section 16 of the Ohio Constitution, and Juv.R. 29 (E)(4) when it adjudicated him delinquent of attempted rape absent proof of every element of the charge against him by sufficient, competent, and credible evidence.
“III. [M.P.’s] adjudication and commitment must be reversed and remanded for a new trial because his adjudication is against the manifest weight of the evidence.
“IV. [M.P.] was denied his constitutional right to effective assistance of counsel.
“V. The cumulative effect of errors resulted in the denial of [M.P.’s] right to a fair trial guaranteed by the Fourteenth Amendment to the United States Constitution.”
{¶ 9} In the first assignment of error, M.P. claims that the trial court erred when it amended the complaint from rape to attempted rape and further claims that the court improperly shifted the burden of proof to him.
{¶ 10} Juv.R. 22(B), states:
{¶ 11} “Any pleading may be amended at any time prior to the adjudicatory hearing. After the commencement of the adjudicatory hearing, a pleading may be amended * * * if the interests of justice require, upon order of the court. A complaint charging an act of delinquency may not be amended unless agreed by the parties, if the proposed amendment would change the name or identity of the specific violation of law so that it would be considered a change of the crime charged if committed by an adult.”
{¶ 12} In the comment following Juv.R. 22(B), the Supreme Court Rules Advisory Committee has explained: “The revision to Juv.R. 22(B) prohibits the
{¶ 13} While attempted rape is not a lesser included offense of rape, we do find that the court had authority to amend the charge to the offense of attempted rape. Although many Ohio courts, including this one, have assumed without stating as much that attempted rape is a lesser included offense of rape, we find it important to distinguish between lesser included offenses, inferior degree offenses, and attempt offenses.
{¶ 14} In State v. Deem, 40 Ohio St.3d 205, 533 N.E.2d 294, the Ohio Supreme Court noted three types of lesser offenses on which, when supported by the evidence, a jury must be charged and on which it may reach a verdict: (1) attempts to commit the crime charged, if such an attempt is an offense at law; (2) inferior degrees of the indicted offense; and (3) lesser included offenses of the indicted offense. Id. at 208. “Each of these groups of offenses is conceptually separate and distinct * * * .” Id.
{¶ 15} In State v. Aponte, Cuyahoga App. No. 89727, 2008-Ohio-1264, we stated that “an attempt is conceptually different from a lesser included offense; it is more closely related to an offense of inferior degree.”
{¶ 17} M.P. further asserts that the trial court improperly shifted the burden to him so that he had to prove the “affirmative defense of attempt.” To support his proposition, M.P. quotes a portion of the transcript where the court stated that “2923.02(D) expressly makes attempt an affirmative defense. The defendant bears the burden of proving an affirmative offense by a preponderance of the evidence.” (Emphasis added.)
{¶ 19} Either way, it is clear from the context of the court’s statements that the court was explaining that M.P. presented no evidence under R.C. 2923.02(D) that he had abandoned his plan to rape R.R. Thus, we do not find that the trial court shifted the burden of proof of M.P.’s guilt to him.
{¶ 20} Therefore, the first assignment of error is overruled.
{¶ 21} In the second and third assignments of error, M.P. argues that there was insufficient evidence to support his adjudication and his adjudication was against the manifest weight of the evidence.
{¶ 22} When reviewing sufficiency and manifest weight challenges in a juvenile’s appeal from an adjudication of delinquency, “this Court applies the same standard of review as that applied in an adult criminal context.” In re J.F., Summit App. No. 24490, 2009-Ohio-1867, at ¶12. In order to determine whether the evidence before the trial court was sufficient to sustain a conviction, this court must review the evidence in a light most favorable to the prosecution. State v. Jenks, (1991), 61 Ohio St.3d 259, 574 N.E.2d 492. Furthermore:
{¶ 23} “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. The 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 crime proven beyond a reasonable doubt.” Id. at paragraph two of the syllabus; see, also, State v. Thompkins, (1997), 78 Ohio St.3d 380, 678 N.E.2d 541.
{¶ 24} “In essence, sufficiency is a test of adequacy.” Thompkins at 386.
{¶ 25} M.P. was adjudicated delinquent of attempted rape, in violation of
{¶ 27} We next consider whether M.P.’s adjudication of delinquency is against the manifest weight of the evidence. In determining whether a conviction is against the manifest weight of the evidence, an appellate court:
“[M]ust 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 and a new trial ordered.”
State v. Otten, (1986), 33 Ohio App.3d 339, 515 N.E.2d 1009.
{¶ 28} A weight of the evidence challenge indicates that a greater amount of credible evidence supports one side of the issue than supports the other. Thompkins at 387. Further, when reversing a conviction on the basis that the conviction was against the manifest weight of the evidence, the appellate court sits as the “thirteenth juror” and disagrees with the factfinder’s resolution of the conflicting testimony. Id. Therefore, this court’s “discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence
{¶ 29} M.P. argues that Roberson’s testimony was inconsistent and unbelievable. The trial court, as trier of fact in this case, was in the best position to judge witness credibility, and we will not usurp the role of the court in this case. In fact, the trial court in this case stated it was finding M.P. delinquent of attempted rape instead of rape because the court determined that the nurse who testified was probably testifying about a different victim, not R.R.
{¶ 30} We do not find that the conviction was against the manifest weight of the evidence.
{¶ 31} Therefore, the second and third assignments of error are overruled.
{¶ 32} In the fourth assignment of error, M.P. argues that he was denied effective assistance of counsel because trial counsel failed to object to the court’s adjudication of delinquency for attempted rape without properly amending the complaint and for failing to object to the court’s “improper burden shifting.”
{¶ 33} We review a claim of ineffective assistance of counsel under the two-part test set forth in Strickland v. Washington, (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Under Strickland, a reviewing court will not deem counsel’s performance ineffective unless a defendant can show his lawyer’s performance fell below an objective standard of reasonable representation and that prejudice arose from the lawyer’s deficient performance. State v. Bradley, (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph one of the syllabus. To show prejudice, a defendant must prove that, but for his lawyer’s errors, a reasonable probability exists that the result of the proceedings would have been different. Id. at paragraph two of the syllabus.
{¶ 34} Since we have found no error with the court’s amendment of the complaint and that the court did not shift the burden of proof to the juvenile defendant, we also find no ineffective assistance of counsel.
{¶ 35} The fourth assignment of error is overruled.
{¶ 36} In the fifth assignment of error, M.P. argues that cumulative errors deprived him of a fair trial. In State v. Garner, (1995), 74 Ohio St.3d 49, 656 N.E.2d 623, the court held that pursuant to the cumulative error doctrine “a conviction will be reversed where the cumulative effect of errors in a trial deprives a defendant of the constitutional right to a fair trial even though each of numerous instances of trial court error does not individually constitute cause for reversal.”
{¶ 37} M.P. cites the alleged errors already discussed and found to be without merit in the previous assignments of error. Therefore, the cumulative error doctrine does not apply and the fifth assignment of error is overruled.
{¶ 38} Accordingly, judgment is affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
LARRY A. JONES, JUDGE
COLLEEN CONWAY COONEY, J., CONCURS; SEAN C. GALLAGHER, A.J., CONCURS IN JUDGMENT ONLY