State v. CalhounState v. Calhoun
Dated: February 22, 2011
WHITMORE, Judge.
{¶1} Defendant-Appellant, Dennis Calhoun, Jr., appeals from his convictions in the Lorain County Court of Common Pleas. This Court affirms.
I
{¶2} Calhoun resided with his cousin, Erika Blackburn, and his uncle, James Blackburn, at various points during July and August 2008. Several times, Calhoun stayed at either Erika’s or James’ houses at the same time as Erika’s daughter, A.R. Erika asked Calhoun to babysit A.R. and A.R.’s sibling while Erika worked at night, three times a week. After approximately a month, however, Erika and Calhoun fought. Calhoun stopped babysitting the children and left Erika’s house. On August 22, 2008, A.R. told Erika that Calhoun had made her play a game, during which “[h]e made [her] suck on his private.” A.R. indicated that Calhoun had made her “suck on his private” several times, including at her own home and at James’ home
{¶3} On September 24, 2008, a grand jury indicted Calhoun on the following counts: (1) two counts of rape, in violation of
{¶4} Calhoun now appeals from his convictions and raises five assignments of error for our review.
II
Assignment of Error Number One
“THE COURT COMMITTED ERROR WHEN IT DETERMINED THAT THE CHILD WITNESS WAS COMPETENT TO TESTIFY.”
{¶5} In his first assignment of error, Calhoun argues that the trial court erred when it found that A.R. was competent to testify. We disagree.
{¶6}
“In determining whether a child under ten is competent to testify, the trial court must take into consideration (1) the child’s ability to receive accurate impressions of fact or to observe acts about which he or she will testify, (2) the child’s ability to recollect those impressions or observations, (3) the child’s ability to communicate what was observed, (4) the child’s understanding of truth and falsity and (5) the child’s appreciation of his or her responsibility to be truthful.” State v. Frazier (1991), 61 Ohio St.3d 247, paragraph one of the syllabus.
{¶7} A.R. was seven years old at the time of trial. The trial court questioned A.R. before allowing her to testify and gave both attorneys the opportunity to question her as well. The court asked A.R. numerous questions about the difference between the truth and a lie. A.R. stated that the truth is “when you say what really happened” and “when you do not tell a lie[.]” She also was able to identify a true statement and a false statement based on hypotheticals posed by the trial court. A.R. was able to recall an occasion on which she had lied to her mother and explained that she knew it was wrong to do so. A.R. promised that she would tell the truth in court. Based on A.R.’s responses, the trial court determined that she was competent to testify.
{¶8} We cannot conclude that the trial court erred by determining, in its sound discretion, that A.R. was competent to testify. The court’s line of questioning elicited responses from A.R. that showed her ability to understand and tell the truth, accurately receive information, and communicate observations. See Frazier, 61 Ohio St.3d at paragraph one of the syllabus. Calhoun has not cited this Court to any authority or any portion of A.R.’s competency evaluation that might cause us to question the trial court’s competency determination. See
“APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.”
{¶9} In his second assignment of error, Calhoun argues that he received ineffective assistance of counsel. We disagree.
{¶10} To prove an ineffective assistance claim, Calhoun must show two things: (1) that counsel’s performance was deficient to the extent that “counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment” and (2) that “the deficient performance prejudiced the defense.” Strickland v. Washington (1984), 466 U.S. 668, 687. To demonstrate prejudice, Calhoun must prove that “there exists a reasonable probability that, were it not for counsel’s errors, the result of the trial would have been different.” State v. Bradley (1989), 42 Ohio St.3d 136, paragraph three of the syllabus. “An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Strickland, 466 U.S. at 691. Furthermore, this Court need not address both Strickland prongs if an appellant fails to prove either one. State v. Ray, 9th Dist. No. 22459, 2005-Ohio-4941, at ¶10.
{¶11} First, Calhoun argues that his counsel was ineffective for failing to introduce medical documentation so as to prove that he had a sexually transmitted disease (“STD“) at the time the alleged offenses occurred. Calhoun theorizes that “[p]roof that [he] had an STD and [A.R. was] STD free would tend to show that the molestation did not occur.” We do not agree, however, that any additional evidence about an STD would have changed the result in Calhoun’s trial. See Bradley, 42 Ohio St.3d at paragraph three of the syllabus. Erika Blackburn, A.R.’s mother, testified at trial that she had A.R. tested for STDs because she believed that Calhoun might have one. Calhoun’s mother, Terry Blackburn, also testified that Calhoun had tested
{¶12} Calhoun also argues that his counsel was ineffective for the following reasons: (1) failing to ask any questions during A.R.’s competency hearing; (2) failing to object when the prosecutor asked his character witness, Mark Smith, whether he was aware that Calhoun had previously set fire to a building or committed domestic violence; (3) commenting during closing argument that the State had “done a tremendous job” and that Erika Blackburn’s testimony was “good“; and (4) failing to object to Calhoun’s tier classification on the basis that his crimes occurred before the enactment of the Adam Walsh Act. Calhoun has not presented this Court with any analysis, case law, or citations in support of his argument that the foregoing items constituted ineffective assistance of counsel. As such, we briefly address his claims.
{¶13} This Court has already determined that the trial court did not err by finding A.R. competent to testify. Absent any argument to the contrary, we find no merit in Calhoun’s bald assertion that his counsel was ineffective because he failed to ask any questions during the competency hearing. Similarly, we decline to fault defense counsel for complimenting the prosecutor and stating that he thought Erika Blackburn’s testimony was “good.” Counsel’s actual statement with regard to Erika was: “Erika’s testimony also was good, but, again, I think there’s (sic) inconsistencies.” The statement was hardly a ringing endorsement of her testimony. More importantly, however, this case was tried to the bench and there is no evidence that the trial
{¶14} Similarly, no ineffective assistance claim lies for defense counsel’s failure to object to either the question the State posed to Smith or Calhoun’s tier classification. Smith testified as a character witness for Calhoun. Specifically, he offered his opinion of Calhoun and testified that this type of crime was “not in Dennis’s character.” On cross-examination, the prosecutor asked Smith whether it was in Calhoun’s character “to set fire to an occupied building” or “commit domestic violence.” Smith admitted that Calhoun had set fire to a building, but indicated that he did not know about any domestic violence charges.
{¶15} Calhoun has failed to demonstrate that his trial counsel was ineffective. Consequently, Calhoun’s second assignment of error is overruled.
“DEFENDANT WAS NOT PROPERLY NOTIFIED OF HIS REGISTRATION DUTIES AS A TIER III SEX OFFENDER.”
{¶16} In his third assignment of error, Calhoun argues that the trial court failed to properly notify him of his registration duties under the Adam Walsh Act. Specifically, he argues that the trial court was required to tell him how to comply with his offender registration duties in the event that he: (1) qualifies for parole at some point during his life sentence; and (2) becomes homeless. We disagree.
{¶17}
“[S]hall be provided notice in accordance with this section of the offender’s *** duties imposed under sections
2950.04 ,2950.041 ,2950.05 , and2950.06 of the Revised Code and of the offender’s duties to similarly register, provide notice of a change, and verify addresses in another state if the offender resides, is temporarily domiciled, attends a school or institution of higher education, or is employed in a state other than this state.”
{¶18} Here, the trial court informed Calhoun that upon his release from prison, he was statutorily obligated to register with the sheriff of the county in which he established a residency. The court also informed him of his duties to register in any county where he intended to work or attend school, to register in other states if he left Ohio, to periodically verify his initial registration, and to notify the sheriff of any changes in residency, employment, or educational institution. See
{¶19} Calhoun has not pointed this Court to any law in support of his argument that the oral and written notifications he received were not sufficient to apprise him of his duties to register. See
Assignment of Error Number Four
“THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT APPELLANT’S CONVICTIONS OF TWO COUNTS OF RAPE AND TWO COUNTS OF GROSS SEXUAL IMPOSITION[.]”
{¶20} In his fourth assignment of error, Calhoun argues that his convictions are based on insufficient evidence. We disagree.
{¶21} 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, 274. Furthermore:
“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, 386.
“In essence, sufficiency is a test of adequacy.” Thompkins, 78 Ohio St.3d at 386.
{¶22}
{¶23}
“No person shall have sexual contact with another, not the spouse of the offender; [or] cause another, not the spouse of the offender, to have sexual contact with the offender *** when *** [t]he other person, or one of the other persons, is less than thirteen years of age, whether or not the offender knows the age of that person.”
The phrase “sexual contact” means “any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region *** for the purpose of sexually arousing or gratifying either person.”
{¶24} Calhoun argues that his convictions are based on insufficient evidence because he was convicted solely on the basis of A.R.’s testimony. A.R., who was six years old at the time of these events, testified that on several occasions Calhoun made her touch his “privates” and perform fellatio on him. This Court has recognized that in sexual assault cases a victim’s testimony may be enough to support a conviction, even absent corroborating evidence. State v. Melendez, 9th Dist. No. 08CA009477, 2009-Ohio-4425, at ¶15, quoting State v. Willard, 9th Dist. No. 05CA0096-M, 2006-Ohio-5071, at ¶11. A.R.’s testimony here supported the State’s assertion that Calhoun engaged in both sexual conduct and sexual contact with her when she was less than thirteen years of age. See
{¶25} Calhoun’s specific argument on appeal is that “[d]ue to the lack of evidence regarding L.R.’s alleged abuse, and the weight of the evidence regarding A.R.’s claims of abuse, it is requested that the trial court’s order of conviction be reversed.” Calhoun’s argument also refers to the evidence not being sufficient to support the offenses relating to “each child.” This Court is perplexed by Calhoun’s argument as it relates to L.R. and discusses the offenses relating
Assignment of Error Number Five
“APPELLANT’S CONVICTION FOR TWO COUNTS OF RAPE AND TWO COUNTS OF GROSS SEXUAL IMPOSITION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION OF ARTICLE IV, SECTION 3, OF THE OHIO CONSTITUTION.”
{¶26} In his fifth assignment of error, Calhoun argues that his convictions are against the manifest weight of the evidence. We disagree.
{¶27} 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, 340.
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, 78 Ohio St.3d at 387. Further, when reversing a conviction on the basis that the conviction was against the manifest weight of the
{¶28} Calhoun’s entire manifest weight argument reads as follows: “It is submitted that Calhoun’s conviction was against the manifest weight of the evidence, and in support the arguments in Section IV are resubmitted.” Even if this Court were to construe the viable portion of Calhoun’s sufficiency argument as his manifest weight argument, we find no merit in it. Calhoun argued that his convictions should be reversed because A.R. waited to report any abuse and there was no sign of physical injury. These items do not warrant a reversal. Denise Miller, the registered nurse who examined A.R. at the Nord Center, testified that delayed reporting is a common phenomenon among abuse victims. A.R. herself testified that she told her mother about the abuse when she did because Calhoun had moved out of the house at that point. Further, neither
III
{¶29} Calhoun’s assignments of error are overruled. The judgment of the Lorain County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellant.
BETH WHITMORE
FOR THE COURT
BELFANCE, P. J.
MOORE, J.
CONCUR
APPEARANCES:
ERIN A. DOWNS, Attorney at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and AMY IOANNIDIS BARNES, Assistant Prosecuting Attorney, for Appellee.