STATE OF OHIO, Plaintiff-Appellee, v. JERRY BIRT, Defendant-Appellant.
CASE NO. CA2012-02-031
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
4/8/2013
[Cite as State v. Birt, 2013-Ohio-1379.]
S. POWELL, J.
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2011-03-0417
Brian A. Smith, 503 West Park Avenue, Barberton, Ohio 44203, for defendant-appellant
S. POWELL, J.
{1} Defendant-appellant, Jerry Birt, appeals his convictions and sentences in the Butler County Court of Common Pleas for five counts of rape, one count of attempted rape, one count of intimidation of a witness, and one count of reckless operation. For the reasons set forth below, we affirm each conviction and sentence for rape, attempted rape, and reckless operation, however, the conviction and sentence for intimidation of a witness is reversed and vacated.
{3} T.G. later confirmed what Morningstar had seen to her stepmother, Carrie Gehlauf. The police were eventually dispatched to the Birt home in Middletown, Ohio. During the interview with the officers, T.G. indicated that this was not the first time this type of abuse had occurred. At trial, T.G. explained that from 2005 until March 6, 2011, Birt forced her to perform fellatio and would engage in both anal and vaginal intercourse with her. She stated that this occurred on a weekly basis and usually occurred when Gehlauf was working. While the officers were conducting their investigation, Birt was heard squealing his tires while driving around the block. Morningstar ran to the officers claiming that Birt was attempting to hit him with his car. When Birt stopped and exited the vehicle, Officer Kristie Hughes of the Middletown Police Department, ordered him to the ground. Officer Hughes noticed a strong odor of alcohol coming from Birt. Birt was subsequently arrested.
{4} On March 7, 2011, Gehlauf took T.G. to Cincinnati Children‘s Hospital where she was evaluated by Dr. Stephen Warrick and a rape kit was collected by Elizabeth Stenger, R.N. The rape kit was later analyzed by Steven M. Wiechman, a forensic scientist with the Miami Valley Regional Crime Lab.
{5} Based on these events, Birt was indicted on five counts of rape, in violation of
{6} Prior to trial, Birt filed a motion, requesting the trial court to “remedy the duplicitous nature of the indictment *** by severing the multiple criminal acts into separate counts.” The trial court held a hearing on the motion. After considering the arguments by both the state and Birt, the trial court denied Birt‘s motion. Birt also orally renewed this motion prior to the start of trial. At this time, Birt‘s counsel indicated that he believed there was not only a duplicitous indictment but also duplicitous charging. The trial court again denied the motion.
{7} After a three-day trial, a jury found Birt guilty of each count of rape, attempted rape, intimidation of a witness, and reckless operation. The jury, however, found him not guilty as to the OVI charge. The jury also made a finding that T.G. was under the age of ten as to Count 1. The court sentenced Birt to an aggregate term of 43 years to life in prison, which included: 10 years to life in prison as to Counts 1, 3, 5, and 6, all to be served consecutively, 36 months as to Count 7 to be served consecutive to Counts 1, 3, 5, and 6, 8 years as to Count 2 to be served concurrent with Count 1, and 10 years to life in prison as to Count 4 to be served concurrent with Count 1. As to Count 9, the court imposed a $100 fine. From these convictions and sentences, Birt timely appeals, asserting six assignments of error.
{9} THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN DENYING THE APPELLANT‘S MOTION TO REMEDY THE DUPLICITOUS INDICTMENT AND CHARGES AGAINST HIM.
{10} In his first assignment of error, Birt argues that there was both a duplicitous indictment and duplicitous charging such that several of his constitutional rights were violated. He asserts that the indictment against him was duplicitous in that it charged him with committing “multiple, separate alleged sexual acts under a single count.”1 Birt also contends that duplicitous charging occurred at trial as the state presented evidence of “multiple alleged acts of sexual conduct, spanning approximately six to seven years, two counties, and three separate residences” to prove single counts.
{11} This court faced these same arguments in State v. Blankenburg, 197 Ohio App.3d 201, 2012-Ohio-1289 (12th Dist.), appeal not accepted, 132 Ohio St.3d 1514, 2012-Ohio-4021. There, the appellant argued that he faced both a duplicitous indictment as “[m]ultiple acts of sexual misconduct were conflated into single counts” and duplicitous charging as the state “introduced evidence of multiple acts of sexual misconduct to prove single counts.” Blankenburg at ¶ 7. We disagreed and found that the indictment was not duplicitous and that the manner in which the evidence was presented at trial did not prejudice the appellant. Id. at ¶ 33.
{12} In the present case, Birt was indicted and evidence was presented at trial much in the same manner as in Blankenburg. For the reasons delineated in Blankenburg, we find that the indictment and the manner in which the evidence was presented in this case was not in error. See Blankenburg at ¶ 7-33. In reviewing the indictment and the record at trial, we
{13} Birt‘s first assignment of error is overruled.
{14} Assignment of Error No. 2:
{15} THE APPELLANT‘S CONVICTION FOR INTIMIDATION OF A WITNESS WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE.
{16} In his second assignment of error, Birt asserts that his conviction for intimidation of a witness must be reversed as there was insufficient evidence to support the conviction. The state concedes, and we agree.
{17} When reviewing the sufficiency of the evidence to support a criminal conviction, an appellate court examines the evidence to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt. State v. Paul, 12th Dist. No. CA2011-10-026, 2012-Ohio-3205, ¶ 9. “The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational
{18} Birt was charged with the intimidation of a witness in violation of
No person, knowingly and by force or by unlawful threat of harm to any person or property, shall attempt to influence, intimidate, or hinder the victim of a crime in the filing or prosecution of criminal charges or an attorney or witness involved in a criminal action or proceeding in the discharge of the duties of the attorney or witness.
{19} Birt asserts that there was insufficient evidence to prove the essential element of a witness “involved in a criminal action or proceeding.” The Supreme Court recently explained that
{20} In the present case, Morningstar testified that on March 6, 2011, the same day that he observed Birt engaging in fellatio with T.G., Birt attempted to strike Morningstar with
{21} Based on this record, there was insufficient evidence to support Birt‘s conviction for intimidation of a witness as there was no evidence that Birt intimidated or threatened a “witness involved in a criminal action or proceeding.” Morningstar was a witness to a crime; however, Birt‘s threats occurred prior to any proceeding in a court of justice. Although the police had begun their investigation at the time of the second threat, a police investigation does not constitute a proceeding in court of justice. Rather, the criminal proceeding was initiated later when the state filed charges against Birt. Therefore, there simply was no pending criminal proceeding at the time the threats were made. Accordingly, no rational trier of fact could have found the essential elements of
{22} Birt‘s second assignment of error is therefore sustained, his conviction for intimidation of a witness is reversed and vacated. Birt is discharged as it relates to the intimidation of a witness charge.
{23} Assignment of Error No. 3:
{24} THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT OVERRULED THE APPELLANT‘S MOTION FOR ACQUITTAL UNDER RULE 29 FOR FAILURE TO ESTABLISH EITHER VENUE PER
{25} In this assignment of error, Birt argues that the trial court erred when it denied his
{26} When reviewing the trial court‘s denial of a motion for acquittal under
{27} Venue is not a material element of the offense, yet it is a fact that must be proved beyond a reasonable doubt, unless it is waived by the defendant. Smith at ¶ 26, citing State v. Headley, 61 Ohio St.3d 475, 477 (1983). Pursuant to
{28} As to Counts 1 and 2, Birt argues that the state failed to prove that venue was
{29} A review of the record reveals that the facts and circumstances in evidence are sufficient to demonstrate that venue properly lay in both Butler and Montgomery Counties. The victim in this case, T.G., testified that from about the time she was 8 or 9 years old, her father sexually abused her on a weekly basis. This abuse included performing fellatio on him, and vaginal and anal intercourse. Specifically, as to Count 1, T.G. testified that the first time the abuse occurred she and Birt were living in an apartment in Germantown, Ohio. T.G. was unable to give the address of this apartment. T.G.‘s stepmother, Gehlauf, corroborated T.G.‘s testimony and confirmed that for about two months in 2005, T.G. and Birt lived in an apartment in Germantown, Ohio. Although she too could not recall the address, she testified that the apartment was located in Montgomery County, Ohio. As to Count 2, T.G. testified that while living in a house in Germantown, Birt attempted to rape her one night, but “he didn‘t do anything because he heard Carrie walking up to go to the bathroom.” Gehlauf then provided the address to the house and further testified that it was located in Montgomery County. As to the remaining counts, the testimony indicates that each incident occurred at a home in Middletown, Butler County, Ohio.
{30} Based on the record, there was sufficient evidence to establish that Birt committed rape and attempted rape in both Butler County and Montgomery County. Furthermore, the record indicates that the rapes and attempted rape were committed as a “course of criminal conduct” as the offenses each involved the same victim, namely T.G., and were committed in the same relationship, father-daughter. See
{31} Birt also argues within his third assignment of error, that the trial court erred in denying his
{32} “A precise time and date of an alleged offense are not ordinarily essential elements.” State v. Blankenburg, 197 Ohio App.3d 201, 2012-Ohio-1289, ¶ 43 (12th Dist.), citing State v. Sellards, 17 Ohio St.3d 169, 171 (1985). In sexual abuse cases involving children, it may be impossible to provide a specific date. “The problem is compounded where the accused and the victim are related or reside in the same household, situations which often facilitate an extended period of abuse. An allowance for reasonableness and inexactitude must be made for such cases.” State v. Barnes, 12th Dist. No. CA2010-06-009, 2011-Ohio-5226, ¶ 12, quoting State v. Elkins, 5th Dist. No. 2010-CA-104, 2011-Ohio-3611, ¶ 26. However, there are some exceptions where dates and times are essential and the failure to provide specific dates and times may prejudice the accused. One such exception is where the accused asserts an alibi. State v. Wagers, 12th Dist. No. CA2009-06-018, 2010-Ohio-2311, ¶ 19. Likewise, where the age of the victim is an element of the crime charged and the victim bordered on the age required to make the conduct criminal, a specific date becomes essential and the failure to provide one is more likely to prejudice the accused. State v. Barnes, 12th Dist. No. CA2010-06-009, 2011-Ohio-5226, ¶ 15. In the case at bar, we are confronted with neither situation.
{33} Birt did not assert an alibi in this case but rather defended against the allegations by suggesting that T.G. was lying. Additionally, the record is clear that each of
{34} Based on the foregoing, we find the trial court did not err in denying Birt‘s
{35} Assignment of Error No. 4:
{36} THE APPELLANT‘S CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{37} In his fourth assignment of error, Birt argues that his convictions for rape, attempted rape, and intimidation of a witness were against the manifest weight of the evidence.3 In resolving Birt‘s second assignment of error, we determined that his conviction for intimidation of a witness must be reversed. Accordingly, any argument as to the weight of the evidence supporting this conviction is rendered moot.
{38} A manifest weight challenge concerns the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other.
{39} Birt was convicted of five counts of rape (Counts 1, 3-6), in violation of
{40} Birt was convicted of five counts of rape by engaging in sexual conduct with T.G. while she was under the age of 13. Count 1 included the additional allegation that the rape occurred when T.G. was less than ten years old. Each rape count corresponded to a specific time period, namely: 2005 through 2006 (Count 1), March 2008 through December 2008 (Count 3), 2009 (Count 4), 2010 (Count 5), and March 6, 2011 (Count 6).
{41} As to Count 1, T.G. testified that the first time Birt raped her, the two were living at a Germantown apartment. She explained: “[m]y dad woke me up, and I had a long shirt on and just my panties, and my dad pulled down my underwear, and then he pulled down his pants, and grabbed my sides, and he stuck in on me. *** I was crying and screaming, and I was bleeding.” She further testified that this event occurred when she was in the third grade, and about eight or nine years old. Gehlauf confirmed that T.G. and Birt lived in the Germantown apartment in 2005.
{42} As to Count 6, T.G. testified that on March 6, 2011, when she was 12 years old, her father told her to go to his bedroom. “[M]y dad came in there in the bedroom, and he told me to pull my pants down, so when I pulled my pants down, my dad pulled down his pants, and he stuck it in my vagina, and he kept doing it.” T.G. indicated that at some point, Birt stopped to see if their houseguest, Morningstar, was still in the shower. When Birt returned to the bedroom, T.G. testified that Birt once again pulled his pants down to his knees and told her to “suck his penis.” T.G. testified that Morningstar pushed opened the door to the bedroom and saw what she was doing. T.G. explained that Birt pulled up his pants once Morningstar entered the room, however, this did not end the abuse. Once Morningstar left, T.G. testified that Birt started all over again. Birt pulled down his pants and her pants and inserted his penis in T.G.‘s vagina, mouth, and anus. Morningstar provided testimony
{43} Morningstar testified that he went over to Birt‘s residence on that day because he had gotten into a fight with his “old lady.” At some point in the early afternoon, Morningstar took a shower. Morningstar testified that after the shower, he went back to Birt‘s bedroom to ask for a cigarette. He explained that the door was cracked open about an inch and a half, so “I swung the door open, and all I could get out of my mouth is, ‘Can I get a – ’ and Jerry had jumped, turned around with his penis sticking out of his pants, and his daughter wiping her mouth off.”
{44} As to the remaining rape convictions, Counts 3, 4, and 5, after detailing the events of March 6, 2011, T.G. testified that this type abuse occurred “almost every week.” She explained that it occurred almost every time Gehlauf was working. T.G. further testified that the abuse occurred at the house in Middletown and included, “suck[ing] his penis, and he‘ll stick his penis in my vagina and my butt.” She specified that these events occurred in 2008 when she was 10 years old, in 2009 when she was 11, and when she was 12 years old in 2010.
{45} Birt was also convicted of attempted rape under Count 2 for attempting to engage in sexual conduct with T.G. in 2005 through 2008, while she was under the age of 13. T.G. testified that one night at the Germantown house:
[Birt] came in my room, and he pulled my pants and panties off, and then he pulled his shorts down, and he got on top of me, but he didn‘t do anything because he heard Carrie walking up to go to the bathroom, so my dad hurried up and pulled his shorts, and he ran around the corner and pretended that he came out of the bathroom.
{46} T.G.‘s testimony was supported by the testimony of Gehlauf who stated that, while living in the house in Germantown, she thought she saw Birt leaving T.G.‘s bedroom in the middle of the night. Gehlauf testified that she checked on T.G. and found her in her room
{47} From the above testimony the jury could have found each essential element of rape and attempted rape. Birt, however, argues that T.G and Morningstar‘s testimony was not credible and the testimony regarding the events of March 6, 2011 were inconsistent. Birt asserts that T.G. was not credible because she had previously alleged that he molested her but later recanted explaining that she made the allegations so her mother could get custody of her. He also argues that Morningstar was not credible because he had a motive to provide favorable testimony for the state. At trial, the court admitted as an exhibit, a letter Morningstar wrote to the prosecutor asking if he could get some “help” on his felony theft case because he was testifying against Birt. Birt contends that the jury‘s decision to overlook these issues of credibility demonstrates “a clear and manifest miscarriage of justice.” However, the credibility of the witnesses and weight to be given to their testimony are ultimately matters for the trier of fact to resolve. State v. Amburgey, 12th Dist. No. CA2005-01-007, 2006-Ohio-1000, ¶ 6, citing State v. DeHass, 10 Ohio St.2d 230, 231 (1967). The jury heard about T.G.‘s prior unfounded allegations of abuse against Birt and her tendency to be untruthful. The jury was free to believe all, part of, or none of T.G.‘s testimony. See State v. Widmer, 12th Dist. No. CA2011-03-027, 2012-Ohio-4342, ¶ 107. Similarly, the jury heard testimony regarding Morningstar‘s possible motivation to lie and even received a copy of the letter. Again, the jury was free to believe all, part of, or none of Morningstar‘s testimony. The jury‘s decision to find T.G. and Morningstar credible, even in light of the above evidence, does not render the verdict against the manifest weight of the evidence.
{48} Birt also contends that his convictions were against the manifest weight because there was no “physical evidence connecting [him] to the alleged acts of abuse.”
{49} After a review of the record, we cannot say the trier of fact clearly lost its way and created a miscarriage of justice by convicting Birt of five counts of rape and one count of attempted rape. The jury weighed the evidence, resolved the inconsistencies in the testimony, considered the totality of the evidence and found Birt guilty. Thus, Birt‘s conviction is not against the manifest weight of the evidence. Birt‘s fourth assignment of error is overruled.
{50} Assignment of Error No. 5:
{51} THE TRIAL COURT‘S DECISION TO ADMIT TESTIMONY THAT APPELLANT WAS USING CRACK COCAINE ON MARCH 6, 2011 WAS AN ABUSE OF DISCRETION.
{52} In his fifth assignment of error, Birt argues that the reference to his use of crack cocaine during Morningstar‘s testimony should have been excluded pursuant to
{53} A trial court has broad discretion in the admission and exclusion of evidence. State v. Martin, 12th Dist. No. CA2007-01-022, 2007-Ohio-7073, ¶ 9, citing State v. Finnerty, 45 Ohio St.3d 104, 109 (1989). Consequently, we will not reverse the trial court‘s decision to admit or exclude evidence absent an abuse of discretion. State v. Renfro, 12th Dist. No. CA2011-07-142, 2012-Ohio-2848, ¶ 29. An abuse of discretion implies that the court‘s decision was unreasonable, arbitrary, or unconscionable, and not merely an error of law or judgment. State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶ 130.
{54} All relevant evidence is admissible, unless otherwise excluded by law.
{56} Birt‘s fifth assignment of error is overruled.
{57} Assignment of Error No. 6:
{58} THE TRIAL COURT‘S SENTENCE OF APPELLANT WAS AN ABUSE OF DISCRETION.
{59} In his sixth and final assignment of error, Birt challenges the trial court‘s
{60} Appellate courts apply a two-step procedure when reviewing felony sentences. First, courts must examine the sentencing court‘s compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶ 26. If this first prong is satisfied, then the sentencing court‘s decision is reviewed for an abuse of discretion. Id. at ¶ 26.
{61} In applying the first prong under Kalish, a sentence is not clearly and convincingly contrary to law where the trial court considers the purposes and principles of sentencing under
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender‘s conduct.
(c) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
Smith at ¶ 21;
{63} As to the first prong, Birt challenges the trial court‘s consideration of the factors in
{64} Birt also contends that the trial court relied on elements “outside the statutory framework” to impose his sentence. Specifically, Birt argues that the court based his
{65} Birt does not set forth any additional arguments as to how his sentence was an abuse of discretion. Accordingly, after a review of the record, we find no abuse of discretion.
{66} Birt‘s sentences as to Counts 1, 3, 5, and 6 and the decision to run each count consecutive to one another is affirmed. However, Birt‘s sentence as to Count 7 is vacated. Birt‘s sixth and final assignment of error is sustained in part and overruled in part.
{67} The trial court‘s judgment is reversed in part to the extent that Birt‘s conviction for intimidation of a witness is reversed and vacated and Birt is discharged as to Count 7. In all other respects, the judgment of the trial court is affirmed.
M. POWELL, J., concurs.
RINGLAND, P.J., concurs separately.
RINGLAND, P.J., concurring separately.
{69} I concur in the majority‘s analysis and resolution of Birt‘s second, third, fourth, fifth, and sixth assignments of error. I also concur, albeit in judgment only, with the majority‘s decision regarding Birt‘s first assignment of error. I write separately to reiterate the problems of allowing “course of conduct” prosecutions for sex offenses as stated in my concurring opinion in State v. Blankenburg, 197 Ohio App.3d 201, 2012-Ohio-1289 (12th Dist.), appeal not accepted, 132 Ohio St.3d 1514, 2012-Ohio-4021. Once again, I urge our Supreme Court to provide the courts of this state with the necessary guidance.
{70} The General Assembly has expressly provided for numerous continuing-course-of-conduct crimes. E.g.,
{71} The use of “continuing course of conduct” in the indictment in this case, however, was meaningful and proper only as to venue.