STATE OF OHIO v. ANDRE D. BOYNTON
No. 106301
Court of Appeals of Ohio, Eighth Appellate District, County of Cuyahoga
November 1, 2018
2018-Ohio-4429
Keough, J.; McCormack, P.J.; Laster Mays, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-16-603301-B
No. 106301
JUDGMENT:
AFFIRMED
William Joseph Edwards
511 South High Street
Columbus, Ohio 43215
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
By: Holly Welsh
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:
I. Background
{¶2} In 2016, Boynton and his longtime girlfriend, Anika George, were charged in a 150-count indictment for trafficking in persons in violation of
The charges arose out of numerous sex crimes against juveniles. Boynton was in prison when the offenses occurred; he was charged and convicted of conspiracy to commit trafficking in persons and as an accomplice on the remaining counts.
{¶4} The next time, George picked up M.D., J.W., and J.L. and took them to her apartment, where she had oral and vaginal sex with them. A week later, George again picked up the three boys, took them to her apartment, and again had oral and vaginal sex with them. Before she dropped the boys off, George stopped at GameStop and bought the boys a video game. On the next occasion, George arranged to pick up M.D. and J.L., brought them back to her apartment, and had oral and vaginal sex with them. She again stopped at GameStop and bought the boys a video game before she dropped them off.
{¶6} Boynton called George repeatedly from prison in 2013 and 2014, and the calls were recorded on the prison’s Global Tel Link system. Many of the recorded telephone conversations between Boynton and George were admitted into evidence and played for the jury. In some of the conversations, Boynton encouraged George to find a job as a home health care worker to disabled children so she could perform sex acts on them. In other calls, Boynton instructed George, who was working at a nursing home, to “stretch” the male patients’ penises, measure their penises, and then “jack.” He also instructed her to perform oral sex on the male patients, and to “suck on the tits” and “finger” the female patients. He further instructed her to film and photograph these sexual assaults.
{¶8} Additionally, Boynton instructed George to babysit his special-needs niece while his sister was out of town, and while babysitting her, perform oral sex on her and force the child victims to have sex with her. A.B. can be heard in some of the telephone conversations crying that she is in pain and saying she wants the boys to stop. Boynton can be heard telling George which boy should next have sex with A.B., and George can be heard telling A.B. to stop crying and “stop being a baby.” On a number of the calls, George described to Boynton exactly what she had done to each child or elderly patient in the nursing home where she worked. Upon hearing these reports, Boynton would laugh or admit that he “got hard” from listening to the account.
{¶10} On cross-examination of Boynton, the state played many of the calls between him and George. Boynton identified his voice in the calls, and agreed that he instructed George in the calls to pick up eight, nine, or ten-year-old boys, suck on their penises, and take pictures. He further agreed that he instructed George to hold their penises, measure them, and take pictures. He agreed further that in one call, he told George he wanted to see how A.B. would “react” to J.B. He also agreed that in another conversation with George, he asked her to put A.B. on the phone so he could ask her if she “sucked it.” Boynton also agreed that he talked to George about her patients at the nursing home where she worked, and agreed that he “might have” talked to her about going into their rooms and “stretching it” and then recording it.
{¶12} Jason Howell, a computer forensic examiner with the Internet Crimes Against Children Task Force, testified that he examined the devices taken from George’s apartment. He found nude photographs of elderly residents of the nursing home where George worked, as well as pornography depicting A.B., M.D., J.L., J.W., and J.B., and videos depicting some of the rapes of the children. In the videos, George is visibly raping the boys and directing the rape of A.B. The photographs and videos were shown to the jury.
{¶13} The state voluntarily dismissed 32 counts of the indictment before the jury received the case. The jury subsequently returned a verdict finding Boynton not guilty of the drug possession charge, but guilty of the remaining 117 counts of the indictment. The court found Boynton to be a sexually violent predator and sentenced him to life in prison. This appeal followed.
A. Self-representation
{¶14} The record reflects that Boynton was arraigned on March 15, 2016, and the court assigned an attorney from the public defender’s office to represent him. On July 17, 2016, the trial court granted the public defender’s request to withdraw from the case because of conflicts with Boynton. The court appointed another attorney and set trial for January 23, 2017. At a hearing on February 3, 2017, a third attorney for Boynton informed the court that he had been retained by Boynton in December 2016, and trial was reset to April 3, 2017.
{¶15} On April 3, 2017, the trial court heard argument on motions to dismiss for lack of speedy trial filed by counsel for Boynton and codefendant George. During argument, Boynton interrupted his lawyer and asked if he could speak. The trial judge advised Boynton that he could speak through his attorney. The court then addressed Boynton’s pro se motion to disqualify his retained counsel. The court denied the motion, finding that the motion had been filed on March 20, despite Boynton’s knowledge that trial was set for April 3, and further, that there was no reason to disqualify Boynton’s highly qualified counsel. Boynton then told the judge that he was firing his lawyer “on the record,” and that he had filed a civil suit and a complaint with the state bar association against his lawyer. Boynton’s counsel responded that he had not received notice of either a complaint or a lawsuit against him, and that Boynton’s assertion in court was the first time counsel had been advised of the complaint and lawsuit. Counsel moved to withdraw, stating that he could not represent Boynton if he had indeed filed a complaint against him.
{¶17} Boynton’s counsel then advised the court that Boynton wished to enter a plea. The court informed Boynton that his only choice was to plead to the indictment because no plea offers had been made. At that point, Boynton began speaking on his own behalf. Boynton repeatedly told the court that the charges had to be “bonded,” and that he would “plead to the facts but not the crimes.” The court asked several times if Boynton wished to plead to the indictment but Boynton refused to answer and stated that “if there is no bond there is no charges and there is no claim.” Eventually, the trial court advised Boynton that if he would not answer its question regarding whether he wanted to plead to the indictment, the case would immediately proceed to trial.
{¶18} Boynton then argued that the court did not have subject matter jurisdiction over the case. The court advised Boynton that he had counsel and it would not tolerate hybrid representation, and that the court indeed had subject matter jurisdiction over the matter. The court advised Boynton that the case would proceed to trial that day and that he was to cooperate with his lawyer. Boynton then told the court that “he is not my lawyer and he doesn’t speak for me. I don’t give a shit. F--- that.” The judge then adjourned the hearing.
{¶20} The next day, new counsel was appointed for Boynton and trial was reset for July 17, 2017. On July 14, 2017, the court held a pending motions hearing. At the start of the hearing, the trial judge addressed Boynton. The judge reviewed what had happened at the April 3 hearing, including exchanges between Boynton and his lawyer, Boynton’s attempt to overturn the table, and his use of profanities. The judge advised him that she wanted him to be present during his trial but “that if any of this conduct happens again, I am going to remove you from the courtroom and we’re going to proceed with the trial. I will give you a closed caption screen in the holding cell and that’s where you will have to stay during the entire trial.” Boynton apologized to the court for his prior conduct.
{¶22} Trial commenced on July 24, 2017. The trial judge repeated the warning she gave on July 14 about removing Boynton from the courtroom if there were any disruptions. The court then proceeded with a competency hearing of A.B. When Boynton’s attorney stated that the defense agreed with the court’s ruling that A.B. was incompetent to testify, Boynton said that he objected. The judge advised him that he could not speak, and that his attorney was representing him. The judge warned Boynton again that if he insisted on speaking, “you’re going to be sitting in a holding cell.”
{¶24} Boynton then told the judge that he wanted to represent himself because appointed counsel had not done several things he had asked him to do. The trial judge denied Boynton’s motion, finding that (1) trial had commenced, (2) when given the opportunity prior to trial to represent himself Boynton told the court he did not want to do so, and (3) Boynton had a “proclivity” to substitute counsel.
In his first assignment of error
{¶25} In his first assignment of error, Boynton contends that the trial court committed reversible error when it denied his request to represent himself.
{¶26} The Sixth Amendment of the United States Constitution guarantees a criminal defendant the right to self-representation. State v. Gibson, 45 Ohio St.2d 366, 345 N.E.2d 399 (1976), paragraph one of the syllabus, citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).
{¶28} Self-representation may be properly denied, however, when it is requested in close proximity to trial or under circumstances suggesting that the request is made for purposes of delay or manipulation. State v. Armstrong, 8th Dist. Cuyahoga No. 103088, 2016-Ohio-2627, ¶ 9, citing State v. Vrabel, 99 Ohio St.3d 184, 2003-Ohio-3193, 790 N.E.2d 303, ¶ 50.
{¶29} In this case, Boynton’s request, made after trial had commenced, was obviously not timely. See Cassano, 96 Ohio St.3d at ¶ 40 (defendant’s request made three days before trial not timely); State v. Buchanan, 2017-Ohio-1361, 88 N.E.3d 686 ¶ 18 (8th Dist.) (defendant’s day of trial request not timely); State v. Lozada, 8th Dist. Cuyahoga No. 94902, 2011-Ohio-823, ¶ 37 (day of trial request untimely, particularly given the history of delays in the case); State v. Smith, 8th Dist. Cuyahoga No. 64715, 1994 Ohio App. LEXIS 595, *12 (Feb. 17, 1994) (day of trial request not timely). Thus, the trial court properly denied Boynton’s request on this basis alone.
{¶31} The first assignment of error is overruled.
B. Removal of Defendant from the Courtroom
{¶32} After the trial court denied his request for self-representation, Boynton continued arguing with the judge. The judge twice reiterated her warning that Boynton would be removed from the courtroom if he continued to disrupt the proceedings. Boynton continued arguing with the judge, who then ordered him removed from the courtroom.
{¶33} In his second assignment of error, Boynton asserts that he was improperly removed from the courtroom without warning and without any opportunity to return, in violation of his due process right to be present at every stage of the proceeding.
{¶34} The Confrontation Clause of the Sixth Amendment of the United States Constitution guarantees a defendant’s right to be present in the courtroom at every stage of the trial. Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). See also Ohio Constitution, Article I, Section 10 and Crim.R. 43.
{¶36} Boynton’s argument that he was removed without warning and an opportunity to return is specious. Even a cursory review of the record demonstrates that the trial judge repeatedly warned Boynton throughout the proceedings, both before and during trial, that he would be removed from the courtroom if he continued his disruptive behavior. Boynton chose not to heed the warnings and continued to interrupt the trial court so the proceedings could not continue. The trial court had sufficient cause to remove Boynton from the courtroom. Moreover, despite Boynton’s argument, he was given an opportunity to adjust his behavior and return to the courtroom after he was initially removed but chose upon his return to continue to disrupt the proceedings at trial.
{¶37} The second assignment of error has no merit and is overruled.
C. Ineffective Assistance of Counsel
{¶38} In his third assignment of error, Boynton asserts that his counsel was ineffective for not objecting when the trial court improperly removed him from the courtroom.
{¶39} To establish constitutionally ineffective assistance of counsel, a defendant must demonstrate (1) deficient performance by counsel, i.e., that counsel’s performance fell below an objective standard of reasonable representation; and (2) prejudice, i.e., a reasonable probability that but for counsel’s errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Short, 129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 113. When performing a Strickland analysis, courts “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689.
{¶40} We find no ineffective assistance of counsel. Counsel had no basis upon which to object to Boynton’s removal from the courtroom because, as discussed above, Boynton was properly removed after he ignored repeated warnings by the trial judge that he would be removed if he continued disrupting the court proceedings.
{¶41} The third assignment of error is overruled.
D. Sufficiency of the Evidence
{¶42} In his fourth assignment of error, Boynton contends there was insufficient evidence to support his convictions because he was in prison when the offenses occurred and had no direct contact with the victims.
{¶43} The test for sufficiency requires a determination of whether the prosecution met its burden of production at trial. State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 12. 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. State v. Thompkins, 78 Ohio St.3d 386, 678 N.E.2d 541 (1997).
{¶44} Boynton was convicted of conspiracy to commit trafficking in persons and as an accomplice on the remaining counts.
{¶45}
R.C. 2923.01, regarding conspiracy, states that:
(A) No person, with purpose * * * to promote or facilitate the commission of * * * trafficking in persons * * * shall do either of the following:
(1) With another person or persons, plan or aid in planning the commission of [the specified offense];
(2) Agree with another person or persons that one or more of them will engage in conduct that facilitates the commission of [the specified offense].
{¶46}
R.C. 2923.03, the complicity statute, provides that:
(A) No person, acting with the kind of culpability required for the commission of an offense, shall do any of the following:
(1) Solicit or procure another to commit the offense;
(2) Aid or abet another in committing the offense;
(3) Conspire with another to commit the offense in violation of Section 2923.01 of the Revised Code;
(4) Cause an innocent or irresponsible person to commit the offense.
{¶48} Boynton also instructed George to photograph or film the sexual assaults, and specifically told her what pictures to take, such as “take pictures of the penis up and down.” The photographs and videos were introduced at trial and shown to the jury. Boynton also instructed George to sexually assault the mentally incapacitated residents at the nursing home where she worked. The calls contain recordings of a number of these sexual assaults.
{¶49} Boynton also instructed George to “report” each assault to him. In the telephone conversations, George would describe what she did to each child or elderly patient, and Boynton would laugh or admit that he “got hard” listening to George’s account.
{¶50} The recorded telephone conversations make clear that Boynton solicited George to commit the crimes and helped plan the offenses. He developed a scheme with George regarding how to get the young children in her car, and when the children were with her, he told her exactly what sexual assaults to perform on them. He also encouraged George to get a job in a nursing home, and then told her what sexual assaults to perform on the elderly patients in her care.
{¶51} Any rational trier of fact could have concluded from this evidence that Boynton, acting with the intent to commit the offenses, conspired with George and facilitated the commission of the offenses. Boynton’s convictions are supported by sufficient evidence, and the fourth assignment of error is overruled
{¶52} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant’s convictions having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure
KATHLEEN ANN KEOUGH, JUDGE
TIM McCORMACK, P.J., and
ANITA LASTER MAYS, J., CONCUR