2005 Ohio 2793 | Ohio Ct. App. | 2005
{¶ 2} Appellant, 19 years old, lived in Goshen Township with her two children, and her boyfriend, Bradley Chewning, 23 years old, and his parents. C.P., 12 years old, lived with her parents in the same neighborhood. C.P. had been friends with appellant for some time, and in April 2003, their friendship grew as C.P. was experiencing some conflict at home. In early April, appellant introduced C.P. to Chewning. Appellant told C.P. that Chewning "liked her enough to have sex." One evening between April 4 and 6, 2003, the three went bowling together and C.P. spent the night at appellant's home. Chewning and appellant showed C.P. a pornographic video purportedly to provide sexual education. After viewing the tape for some time, appellant asked C.P. to allow Chewning to kiss her, which he did.
{¶ 3} On April 9, 2003, appellant and Chewning left for Texas. Before leaving, Chewning kissed C.P. on the lips. While in Texas, appellant and Chewning phoned C.P. almost daily. During one conversation, appellant asked C.P. if she wanted to "hook up with [Chewning]." Chewning and appellant returned from Texas on May 2, 2003. Chewning's relationship with C.P. became more physical, and involved holding hands and kissing. Later that month, appellant, Chewning and C.P. played a game of "horse" with the understanding that C.P. would have sex with Chewning if she lost the game. C.P. lost twice. After the game, in appellant's presence, Chewning admonished C.P. that appellant would videotape the sexual encounter if C.P. did not stop biting her nails. On May 16 or 17, 2003, C.P. stayed overnight at appellant's home. After appellant fell asleep, Chewning digitally penetrated C.P.'s vagina and fondled her breasts. C.P. pushed him away, but Chewning later pulled down her shorts and underwear and performed oral sex on C.P. Appellant was present in the home while these events occurred.
{¶ 4} On May 23, 2003, C.P. was at appellant's home to celebrate Chewning's birthday. While appellant talked on the phone in the living room, Chewning, in the same room, repeatedly exposed his genitals to C.P. and at one point forced his penis into her mouth.
{¶ 5} On May 30, 2003, appellant, Chewning, and C.P. went to a hotel together, "to get it over with," meaning that C.P. would have sex with Chewning. On the way, they stopped at a convenience store and purchased condoms and snacks. C.P. was told to hide in the car while Chewning checked into the hotel. Chewning and C.P. entered the room together while appellant remained outside. Upon entering the room, C.P. showered and redressed, and then joined Chewning on the bed. He began kissing her. Appellant went to the hotel room door three times, telling C.P. to hurry up. C.P. eventually told Chewning that she did not want to have sex and the encounter ended a short time later.
{¶ 6} In June 2003, C.P.'s mother heard rumors about the relationship. C.P. at first denied the allegation that she and Chewning had been sexually involved, but later related the abovedescribed events to her mother. C.P.'s mother contacted children services and local police. A search warrant was executed at appellant's residence and pornographic videotapes were recovered. Upon examination, one of the videotapes was discovered to depict scenes described by C.P. She also retraced the route that she, appellant, and Chewning took on the way to the hotel, and police discovered documentary evidence confirming the sequence of events.
{¶ 7} On July 30, 2003, appellant and Chewning were indicted on three counts of rape in violation of R.C.
{¶ 8} Assignment of Error No. 1:
{¶ 9} "The trial court erred to the prejudice of defendant-appellant in failing to order that she receive the benefit of a separate trial and separate counsel to defend her."
{¶ 10} In this assignment of error, appellant first alleges that she was "unfairly prejudiced by having the same lawyer representing both her and Bradley Chewning." Although she raised no objection to the joint representation at trial, appellant contends that the trial court should have appointed separate counsel to represent her.1
{¶ 11} "In order to establish a violation of [the]
{¶ 12} A review of the record in the present case reveals no evidence of an actual conflict of interest. Appellant's and Chewning's defenses did not result in one assigning blame to the other; rather, their common defense attacked the credibility of C.P., the prosecution's witness. In this instance, appellant has failed to demonstrate an actual conflict arising from the joint representation. See Manross at 182; State v. Ballinger (Nov. 6, 1995), Butler App. Nos. CA95-02-021 and CA95-02-030.
{¶ 13} Appellant also alleges that she was denied the effective assistance of counsel, because her trial counsel's performance was deficient. To establish a claim of ineffective assistance of counsel, a defendant must first demonstrate that trial counsel's performance was deficient, namely, that counsel's representation fell below the objective standard of reasonable competence under the circumstances. Second, the defendant must show that, as a result of this deficiency, she was prejudiced at trial. Strickland v. Washington (1984),
{¶ 14} In her appellate brief, appellant first argues that trial counsel was ineffective for failing to exercise peremptory challenges to excuse jurors. At oral argument appellant's counsel conceded that the record demonstrates that trial counsel in fact exercised peremptory challenges. We consequently find this argument to be without merit.
{¶ 15} Appellant also argues that counsel was ineffective for failing to challenge certain jurors who had been victims of sexually-oriented offenses, or who were close to someone who had been the victim of such an offense. However, counsel is not ineffective for failing to challenge prospective jurors, where, as in the present case, review of the record demonstrates that each of the jurors informed the trial court that each could be fair and impartial. Lakewood v. Town (1995),
{¶ 16} Appellant next argues that her trial counsel was ineffective for failing to request a change of venue or in the alternative, for failing to object to the course-of-conduct instruction given to the jury, with regard to the charge of contributing to the unruliness of a minor. This charge arose out of the events which occurred on May 20, 2003. Appellant argues that the request for a change of venue should have been made because the events occurred primarily at the Tri-County Inn, located in Butler County. Contrary to appellant's assertion, the record supports the course-ofconduct instruction, and reveals that Clermont County provided a proper venue.
{¶ 17} R.C.
{¶ 18} Lastly, appellant argues that her trial counsel was ineffective because counsel, following C.P.'s direct examination, did not ask to review C.P.'s written and recorded statements for inconsistencies as permitted by Crim.R. 16(B)(1)(g). This court has not been provided with a record of any such statements and consequently, is unable to review appellant's contention that these records would have provided exculpatory evidence. Since the record does not affirmatively support appellant's contention, this court must presume the regularity of the proceeding and the competency of counsel's trial strategy. See State v. Chewning, Clermont App. Nos. CA2004-01-002, CA2004-01-003,
{¶ 19} Appellant has not shown that she was prejudiced by the dual representation, or that trial counsel's representation fell below an objective standard of reasonableness. Accordingly, appellant's first assignment of error is overruled.
{¶ 20} Supplemental Assignment of Error No. 1:
{¶ 21} "The trial court erred in excluding the defendant-appellant during the exercise of her peremtory challenges, in violation of her rights to confrontation and due process."
{¶ 22} Following voir dire, the trial judge, prosecuting attorney, and defense counsel went into the judge's chambers, while appellant remained in the courtroom. The judge and attorneys returned to the courtroom a short while later, and the judge stated "[t]he court has in chambers with counsel had counsel exercise peremptory challenges." Appellant's counsel did not state an objection on the record to this proceeding. In her first supplemental assignment of error, appellant argues that she was denied her right to be present at a critical stage of the trial (the impaneling of the jury) as required by Crim.R. 43(A).
{¶ 23} This rule provides:
{¶ 24} "The defendant shall be present at the arraignment and every stage of the trial, including the impaneling of the jury, the return of the verdict, and the imposition of sentence, except as otherwise provided by these rules. In all prosecutions, the defendant's voluntary absence after the trial has been commenced in [her] presence shall not prevent continuing the trial to and including the verdict."
{¶ 25} A defendant's absence does not necessarily result in prejudicial or constitutional error. "[T]he presence of the defendant [in a prosecution for felony] is a condition of due process to the extent that a fair and just hearing would be thwarted by [her] absence, and to that extent only." Snyder v. Massachusetts (1934),
{¶ 26} Appellant argues that we should review this assignment of error under a "structural error analysis." Structural errors are a limited class of constitutional defects, "that defy harmless-error analysis and are cause for automatic reversal" without a showing that a substantial right has been affected. State v. Perry,
{¶ 27} We have previously held that the failure to comply strictly with Crim.R. 43(A) is not a structural error, and reiterate that holding in the present case. See Chewning at ¶ 15, citing State v. Vinzant, Montgomery App. No. 18546, 2001-Ohio-7005. Statutory or rule violations, even serious ones, will not sustain a structural-error analysis. See, e.g., Perry at syllabus (trial court's failure to maintain written jury instructions with "papers of the case" as part of the record for use on appeal, in violation of R.C.
{¶ 28} Moreover, appellant's absence from the exercise of the peremptory challenges does not constitute the type of error that structural error guards against: the error does not "permeate `[t]he entire conduct of the trial from beginning to end' so that the criminal trial cannot `reliably serve its function as a vehicle for determination of guilt or innocence.'" Perry at ¶ 25 (citations omitted).
{¶ 29} Consequently, because the alleged error was not objected to at trial, we will conduct a "plain error" review. See Crim.R. 52(B) ("[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court"). Plain error does not exist unless it can be said that, but for the error, the outcome of the trial clearly would have been otherwise. State v. Long (1978),
{¶ 30} In the present case, appellant's absence when peremptory challenges were made did not thwart a fair and just hearing. See Snyder,
{¶ 31} Assignment of Error No. 2:
{¶ 32} "The trial court erred to the prejudice of appellant in failing to grant defense counsel's criminal rule 29(a) motion for acquittal."
{¶ 33} In her second assignment of error, appellant specifically argues that her Crim.R. 29(A) motion for acquittal with regard to the three counts of rape and one count of gross sexual imposition should have been granted. She does not argue that the motion should have been granted with regard to the remaining charges.
{¶ 34} When reviewing the trial court's denial of a motion for acquittal under Crim.R. 29, this court applies the same test as it would in reviewing a challenge based upon the sufficiency of the evidence to support a conviction. State v. Thompson (1998),
{¶ 35} Appellant was charged with three counts of rape, in violation of R.C.
{¶ 36} To establish that an accused aided or abetted the commission of a crime, the state must present evidence that the accused incited, assisted, or encouraged the criminal act. See State v. Sims (1983),
{¶ 37} Upon thoroughly reviewing the record, we find that the state presented sufficient evidence that appellant aided and abetted Chewning in the three counts of rape and the one count of gross sexual imposition. The state presented evidence that appellant introduced C.P. to Chewning, telling C.P. that Chewning wanted to have sex with her. Appellant encouraged C.P. to kiss Chewning and participated in the game of horse, designed to encourage C.P. to have sex with Chewning. Appellant was present when the pornographic videotape was shown to C.P. Appellant accompanied C.P. and Chewning to a convenience store where condoms were bought, and went with them to the hotel where Chewning and C.P. were to have sex. Appellant was with C.P. and Chewning in the trailer before, during and after the rapes and the gross sexual imposition occurred.
{¶ 38} Review of the evidence demonstrates that a rational trier of fact could have found that appellant incited, assisted, or encouraged the charged criminal acts. Appellant's second assignment of error is overruled.
{¶ 39} Supplemental Assignment of Error No. 2:
{¶ 40} "The judgments of conviction are contrary to law and to the due process clause of the
{¶ 41} Although broadly stated, appellant's second supplemental assignment of error argues only that her conviction for complicity to commit rape in violation of R.C.
{¶ 42} Unlike R.C.
{¶ 43} We agree with appellant that, because the indictment charging her with complicity to commit rape under R.C.
{¶ 44} Appellant's first, second, and first supplemental assignments of error are overruled, and appellant's convictions on counts one through seven are affirmed. Appellant's second supplemental assignment of error is sustained, and her judgment of guilty and sentence for complicity to commit rape in violation of R.C. 2923.-03(A)(3) as charged in count eight, are vacated.
{¶ 45} Judgment affirmed in part, and reversed and vacated in part.
Powell, P.J., and Young, J., concur.