State v. AllenState v. Allen
Viсtoria Bader, Assistant State Public Defender, Office of the Ohio Public Defender, Columbus, Ohio, for appellant.
Jeffrey C. Marks, Ross County Prosecuting Attorney, and Pamela C. Wells, Ross County Assistant Prosecuting Attorney, Chillicothe, Ohio, for appellee.
Hess, J.
{1} Brian M. Allen appeals from a judgment of the Ross County Court of Common Pleas convicting him of two counts of gross sexual imposition. In his first assignment of error, Allen contends that the trial court committed plain error when it admitted irrelevant and prejudicial photographs. However, the court could conclude the photographs have a tendency to make it more probable thаt Allen caused the victim to have sexual contact with him and that their probative value was not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Because the court did not abuse its discretion, let alone commit plain error, in determining that the photographs were relevant and admissible under
{3} In his third assignment of error, Allen contends that trial counsel provided ineffective assistance by failing to object to photographs. However, Allen failed in his burden to show that trial counsel‘s performance was both deficient and prejudicial. Accordingly, we overrule the third assignment of error and affirm the trial court‘s judgment.
I. FACTS AND PROCEDURAL HISTORY
{4} The Ross County grand jury indicted Allen on two counts of gross sexual imposition in violation of
{5} C.L. (“Mother“) testified that she is the mother of L.L. (d.o.b. 8/2/12) and G.A. When L.L. was two years old, Mother met and moved in with Allen, who was Mother‘s boyfriend for four years and is the father of G.A. They lived in a two-bedroom, one-bathroom home on Vigo Road in Ross County. Mother and the children shared a
{6} Mother testified about State‘s Exhibits 1-17. Exhibit 1 is a photograph of part of L.L.‘s bedroom at Aunt‘s house. Exhibit 2 is a photograph of part of L.L.‘s bed. Exhibit 3 is a photograph of another part of the bed and drawings on a wall behind it. Exhibits 4 through 7 are photographs which depict closer views of the drawings on the wall, which Mother described as including a cat with a penis near its tail, a cat with a penis in its mouth, a penis, and a boy with a penis. Exhibit 8 is a photograph of a book, which Mother testified was L.L.‘s library book and found in a toybox. Exhibits 9 through 17 are photographs of nine pages in the book in which someone added what Mother describеd as penises to images in the book. Mother testified that she found the drawings on the
{7} Mother‘s cousin and Aunt‘s daughter, N.H. (“Cousin“), testified that in September 2018, L.L. made concerning disclosures to her. Cousin did not know what to do, so she called a number related to sexually assaulted children and was advised to go to the sheriff‘s office. Then, Cousin contacted Mother and Aunt. They went to the Perry County Sheriff‘s Office but were told to go to the Ross County Sheriff‘s Office.
{8} Aunt testified that in August 2018, Mother, L.L., and G.A. moved in with her. L.L. told Cousin “stuff that was not good about things that happened to her down there on Vigo Road,” and they called a sexual abuse hotline. They were told to go to the sheriff‘s office to file a report. On September 11, 2018, they went to the Perry County Sheriff‘s Office but were advised to go to the Ross County Sheriff‘s Office. They did so and met with Deputy Zachary McGoye. Subsequently, Aunt saw drawings of penises in L.L.‘s bedroom and told Detective Tony Wheaton about them. Aunt initially testified that she saw the drawings about three or four months after Mother and the children moved in with her but later testified that she was “not real sure about” when she saw them.
{9} Deputy McGoye of the Ross County Sheriff‘s Office testified that on September 11, 2018, he interviewed Mother and Aunt about sexual assault allegations. Mother claimed to have witnessed alleged events about a year prior. Deputy McGoye forwarded the information he gathered to his supervisor.
{10} Detective Wheaton of the Ross County Sheriff‘s Office testified that on October 4, 2018, he was assigned to the case. On January 24, 2019, he interviewed Allen for 30 to 40 minutes in Allen‘s kitchen. Allen denied any sexual involvement with
{11} On August 15, 2019, Allen voluntarily came to the sheriff‘s office again for a third interview which took place in a “relatively small room” with windows looking outside. Detective Wheaton did not record the first part of the interview because the recording equipment in the room was not operational. Allen initially “continued with his denial.” Then he recalled a time when he inadvertently touched L.L.‘s vagina while bathing her. Detective Wheaton reminded Allen that he previously denied giving L.L. baths. Allen “changed his statement” and recalled a time when he touched L.L.‘s vagina in their bedroom sometime when she was three or four years old and prior to April 1, 2017. Allen said that they were watching television, that he was extremely intoxicated, and that for an unknown reason, he began to touch L.L.‘s exposed vagina. He was not sure whether he removed L.L.‘s clothing to expose her vagina or placed his hand inside her clothing. However, “he could clearly remember that he was rubbing the outside of her vagina.” Allen admitted that at some point, he grabbed L.L.‘s hand and placed it on his exposed penis. At first, Allen “was describing a manner that is consistent with masterbation [sic]” but “quickly changed that and stated that she was just touching and holding on to it. For an undetermined amount of time.” Detective Wheaton left the interview room with the door open for a few minutes and retrieved a recording device from his office. He recorded the rest of the interview with Allen‘s permission.
{13} Detective Wheaton testified that later in the day after the third interview, Allen called him and begged him to drop thе investigation. Allen said that he had “learned his lesson” and that “he would never touch another drop of alcohol” or “be around a young child to put himself in that situation again.” A day or two later, Allen again called and begged Detective Wheaton to drop the investigation. In December 2019, Detective Wheaton learned about the drawings in L.L.‘s bedroom and book.
{14} Julie Oates, a licensed professional clinical counselor, testified that on January 9, 2020, she was the executive director of the Child Protection Center of Ross County and interviewed L.L. L.L. “was hesitant to come back to the interview” and asked “safety quеstions” such as whether they could lock the doors and “keep people outside.” During the interview, she was quiet, chewed her fingernails, kept her head down, made
{15} Allen testified that he voluntarily agreed to talk to Detective Wheaton three times. Allen claimed the first interview occurred in Detective Wheaton‘s vehicle but admitted Detective Wheaton did not threaten or hit him during it. Allen left the second interview because he felt ill due to his anti-anxiety medication. He admitted Detective Wheaton did not force him to stay and that he had no problem leaving. Allen testified that he initiated the third interview because he wanted to “get some things straight” after receiving threats from L.L.‘s family. The third interview lasted about 45 minutes. Allen admitted thаt before it began, Detective Wheaton asked whether he was under the influence of alcohol or drugs, and he said, “No.” But the interview room was small, and Allen felt “anxious and claustrophobic.” So “throughout the time” he was talking to Detective Wheaton, he took about eight capsules of anti-anxiety medication—more than the recommended dose. Allen later testified that he took the capsules outside of Detective Wheaton‘s presence. The medication decreased his anxiety but made him “extremely drowsy” and feel unlike himself. Allen told Detective Wheaton that he was not feeling well and made multiple requests to end the interview, but Detective Wheaton would not let him leave.
{17} The jury found Allen guilty as charged. The trial court sentenced him to 48 months in prison on each count and ordered that he serve the sentences concurrent with one another.
II. ASSIGNMENTS OF ERROR
{18} Allen assigns three errors for our review:
- The trial court committed plain error when it allowed the admission of irrelevant and prejudicial photographs.
- Mr. Allen‘s convictions were against the manifest weight of the evidence.
- Brian Allen was denied the effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the U.S. Constitution; and Article I, Section 10, Ohio Constitution.
{19} In the first assignment of error, Allen contends that the trial court committed plain error when it admitted the photographs because they are irrelevant and prejudicial. Allen asserts that the drawings in the photographs were irrelevant because they “were found approximately twо to three years after the alleged offenses took place,” and “[t]here was no testimony connecting these drawings to the charges against Mr. Allen, no statements from L.L., and no medical opinion or expert testimony.” He asserts that even if the drawings were relevant, their probative value was substantially outweighed by the danger of unfair prejudice and confusing the jury. According to Allen, the state sought admission of the photographs “for the sole purpose of inflaming the passions of the jury and asking them to find an unfounded causal connection between the allegations against [him] and the unrelated rudimentary drаwings found in a seven-year-old‘s bedroom.” He maintains that the photographs prejudiced him because “there is no overwhelming independent evidence of guilt” and the “highly inflammatory exhibits served to confuse the jury and assuredly resulted in the jury‘s finding of guilt.”
{20}
{21} “The admission or exclusion of evidence generally rests within a trial court‘s sound discretion.” State v. McCoy, 4th Dist. Pickaway No. 19CA1, 2020-Ohio-1083, ¶ 20. “Thus, absent an abuse of discretion, an appellate court will not disturb a trial court‘s ruling regarding the admissibility of evidence.” Id. An abuse of discretion is “an unreasonable, arbitrary, or unconscionable use of discretion, or * * * a view or action that no conscientious judge could honestly have taken.” State v. Brady, 119 Ohio St.3d 375, 2008-Ohio-4493, 894 N.E.2d 671, ¶ 23.
{22} ” ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”
{24}
{25} The trial court could conclude that the photographs were relevant and that their probative value was not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. One can infer that L.L. made the drawings based on their location—on the walls of her bedroom and inside her library book. The
IV. MANIFEST WEIGHT OF THE EVIDENCE
{26} In the second assignment of error, Allen contends that his convictions are against the manifest weight of the evidence. He suggests that the jury should have believed his testimony instead of his admissions. He emphasizes his prior denials of wrongdoing and the delay in recording the third interview. Allen alsо emphasizes his testimony that during the third interview, he felt drowsy and unlike himself due to anti-anxiety medication, that Detective Wheaton prevented him from leaving multiple times, and that he told Detective Wheaton what he wanted to hear to escape the pressure of the
{27} In determining whether a 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 we must reverse the conviction.
(Citations omitted.) State v. Thacker, 4th Dist. Lawrence No. 19CA18, 2021-Ohio-2726, ¶ 21-22. “To satisfy its burden of proof, the state must present enough substantial credible evidence to allow the trier of fact to conclude that the state had proven all the essential elements of the offense beyond a reasonable doubt. However, it is the role of the jury to determine the weight and credibility of evidеnce. ‘A jury, sitting as the trier of fact, is free to believe all, part or none of the testimony of any witness who appears before it.’ ” State v. Reyes-Rosales, 4th Dist. Adams No. 15CA1010, 2016-Ohio-3338, ¶ 17, quoting State v. West, 4th Dist. Scioto No. 12CA3507, 2014-Ohio-1941, ¶ 23. We defer to the trier of fact on these evidentiary weight and credibility issues because it is in the best position to gauge the witnesses’ demeanor, gestures, and voice inflections, and to use these observations to weigh their credibility.
{28}
{29} The jury was free to reject Allen‘s testimony and believe his admissions that during the time period alleged, he touched L.L.‘s vagina and caused her to touch his penis. Although Allen initially denied any wrongdoing, during the recorded part of the third interview, he admitted to lying because he was afraid of losing “everything.” The claim that Detective Wheaton pressured Allen into confessing during the third interview is undercut by several facts. During earlier interviews when Allen denied wrongdoing, Detective Wheaton did not pressure Allen or prevent him from terminating thе interviews.
{30} The jury had no obligation to believe that Allen took an excessive amount of medication during the third interview due to anxiety and claustroрhobia or was so affected by medication that he made a false confession. Allen initiated the third interview and voluntarily went to it. Although it occurred in a small room, there were windows looking outside, and there is no evidence Allen told Detective Wheaton that he felt claustrophobic or asked to move to a more spacious location. In addition, Allen‘s testimony that he took about eight capsules of anti-anxiety medication throughout the time he was talking to Detective Wheaton is inconsistent with Allen‘s later testimony that he did not take the medication in Detective Wheaton‘s presence.
{31} Thе jury was also free to believe L.L.‘s statements. When L.L. described her interactions with Allen, she used language one might expect from a young child. The jury did not have to reject her statements merely because she was young, said she did not know the answer to some questions, and exhibited discomfort during the interview. The jury could have reasonably concluded she felt uncomfortable about recounting traumatic events to a stranger. Moreover, Allen‘s admissions were consistent with some of L.L.‘s statements. Allen and L.L. agreed that he touched her vagina and that he caused
{32} With respect to Mother, even if her testimony about Allen‘s conduct was so incredible as to be unworthy of the jury‘s acceptance of it, the convictions would not be against the manifest weight of the evidence. As we explained above, the jury was free to believe Allen‘s admissions and L.L.‘s statements. The jury also could reasonably infer that Allen acted for the purpose of sexually arousing or gratifying himself.
{33} Having reviewed the entire record, we cannot say that this is an exceptional case where the evidence weighs heavily against the сonvictions, that the jury lost its way, or that a manifest miscarriage of justice has occurred. Because the convictions are not against the manifest weight of the evidence, we overrule the second assignment of error.
V. INEFFECTIVE ASSISTANCE OF COUNSEL
{34} In the third assignment of error, Allen contends that trial counsel provided ineffective assistance. Allen asserts counsel should have objected to the photographs under
{35} Tо prevail on an ineffective assistance claim, a defendant must show: “(1) deficient performance by counsel, i.e., performance falling below an objective standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability that, but for counsel‘s errors, the proceeding‘s result would have been different.” State v. Short, 129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 113, citing Strickland v. Washington, 466 U.S. 668, 687-688, 694 (1984). Failure
{36} Trial counsel was not ineffective for failing to object to the photographs under
{37} Trial counsel was also not ineffective for failing to object to the photographs on the ground that they were cumulative.
{38} Allen has not shown that trial counsel‘s failure to object to the photographs on any ground he advances on appeal was both deficient performance and prejudicial. Because Allen failed in his burden to establish trial counsel‘s ineffectiveness, we overrule the third assignment of error.
VI. CONCLUSION
{39} Having overruled the assignments of error, we affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT IS AFFIRMED and that appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the ROSS COUNTY COURT OF COMMON PLEAS to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed 60 days upon the bail previously posted. The purpose of a continued stay is to allow appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that cоurt. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the 60-day period, or the failure of the appellant to file a notice of appeal with the Supreme Court of Ohio in the 45-day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of 60 days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Abele, J. & Wilkin, J.: Concur in Judgment and Opinion.
For the Court
BY: _________________________
Michael D. Hess, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.