STATE OF OHIO v. ANTONIO R. CAMPBELL
Nos. 100246 and 100247
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
May 22, 2014
2014-Ohio-2181
Rocco, J., S. Gallagher, P.J., and McCormack, J.
JOURNAL ENTRY AND OPINION; RELEASED AND JOURNALIZED: May 22, 2014
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-12-563277 and CR-12-562779
Robert L Tobik Public Defender By: Cullen Sweeney Assistant Cuyahoga County Public Defender 310 Lakeside Avenue Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor By: Jesse W. Canonico Brian Hoffman Assistant County Prosecutors 1200 Ontario Street Cleveland, Ohio 44113
{1} In this consolidated appeal, defendant-appellant Antonio Campbell appeals from his conviction and sentence stemming from two cases that were tried together. Finding no merit to any of Campbell‘s assignments of error, we affirm the trial court‘s final judgment.
{2} On May 23, 2012, Campbell was indicted in Cuyahoga C.P. No. CR-12-562779, and charged with aggravated burglary,1 two counts of gross sexual imposition,2 two counts of kidnapping,3 felonious assault,4 and rape.5 All of the charges were based on a single incident occurring on March 30, 2012, at the Loganberry Apartment Complex involving victim, A.D. (“the A.D. case“).
{3} On June 25, 2012, Campbell was indicted in Cuyahoga C.P. No. CR-12-563277, and charged with two counts of aggravated burglary,6 two counts of
{4} The state filed a motion requesting that the trial court join the A.D. and M.W. cases. Campbell filed a motion for relief from prejudicial joinder. The trial court granted the state‘s motion and denied Campbell‘s motion. Thereafter, Campbell waived his right to a jury trial and elected to proceed with a bench trial.
{5} Following the bench trial, the trial court found Campbell guilty on all counts and specifications in the A.D. case, except that it reserved judgment on the issue of whether the sexually violent predator specification would apply. In the M.W. case, the trial court found Campbell guilty on both counts of aggravated burglary, both counts of
{6} The trial court conducted a separate bench trial on the sexually violent predator specifications. Following that trial, the court found Campbell guilty of all four sexually violent predator specifications that applied to one count of kidnapping and one count of rape in the A.D. case, and to one count of kidnapping and one count of rape in the M.W. case.
{7} After determining that some of the charges in the case were subject to merger, Campbell was sentenced to consecutive sentences as follows: (1) 12 years to life for the rape in the M.W. case; (2) 5 years for the aggravated burglary in the M.W. case; and (3) 12 years to life for the rape in the A.D. case.
{8} Campbell now appeals, setting forth ten assignments of error for our review:
- The trial court violated Campbell‘s due process rights when it improperly joined two separate and distinct rape cases and when it improperly considered the evidence of each case as other acts evidence in the other case.
- The trial court committed reversible error and violated Campbell‘s constitutional right to a fair trial by allowing the prosecutor to admit prejudicial hearsay testimony.
The trial court committed reversible error and violated Campbell‘s right to a fair trial when it improperly permitted a police officer to bolster the credibility of the alleged victim‘s testimony. - Campbell was denied his right to a fair trial as the result of prosecutorial misconduct.
- Campbell‘s convictions involving M.W. are against the manifest weight of the evidence.
- Campbell‘s convictions involving A.D. are against the manifest weight of the evidence.
- Campbell‘s aggravated burglary convictions are not supported by legally sufficient evidence.
- Campbell was denied effective assistance of counsel at his initial trial.
- The trial court committed reversible error by allowing the prosecutor to introduce prejudicial hearsay testimony at the trial on the sexually violent predator specification.
- Campbell was denied effective assistance of counsel at his trial on the sexually violent predator specification.
We address the assignments of error out of order where practical. For the reasons that follow, we overrule all assignments of error.
{9} In his first assignment of error, Campbell argues that the trial court erred in joining the A.D. case and the M.W. case. A trial court “may order two or more cases be tried together ‘if the offenses * * * could have been joined in a single indictment * * *.‘” State v. Harris, 8th Dist. Cuyahoga Nos. 98183 and 98184, 2013-Ohio-484, ¶ 8, quoting
{10} Although the law generally favors the joinder of offenses that are of the “same or similar character,”
{11} Applying the foregoing to the instant case, we conclude that Campbell has not demonstrated that he was prejudiced by the joinder. Campbell waived his right to a jury trial, and his case was tried to the bench:
The Ohio Supreme Court has repeatedly recognized that when a judge hears evidence in a bench trial, the trial court must be presumed to have “‘considered only the relevant, material, and competent evidence in arriving at its judgment unless it affirmatively appears to the contrary.‘” State v. Post, 32 Ohio St.3d 380, 384, 513 N.E.2d 754 (1987), quoting State v. M.W., 15 Ohio St.2d 146, 239 N.E.2d 65, paragraph two of the syllabus (1968).
{12} Campbell argues that he was prejudiced because the only reason that he waived his constitutional right to a jury trial was because the trial court had granted the state‘s motion for joinder and denied his motion for severance. Assuming that this would form the basis for a viable claim of prejudice, the record does not support Campbell‘s contention. Campbell concedes that there is no discussion on the record regarding the reason why Campbell decided to waive his right to a jury trial. The first assignment of error is overruled.
{13} In his second assignment of error, Campbell argues that the trial court erred in allowing the prosecutor to introduce prejudicial hearsay. Campbell‘s counsel did not object to any of the evidence raised in this assignment of error, so our review is limited to plain error. State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 52. Under
{14} “The main premise behind the hearsay rule is that the adverse party is not afforded the opportunity to cross-examine the declarant.” State v. Primeau, 8th Dist. Cuyahoga No. 97901, 2012-Ohio-5172, ¶ 69. For this reason, we have found hearsay errors to be harmless where the defense had the opportunity to cross-examine the declarant. Id. See also State v. Thompson, 8th Dist. Cuyahoga No. 99846, 2014-Ohio-1056, ¶ 31.
{15} In this case, all of the alleged hearsay that Campbell objects to involves statements made by A.D. and M.W. Both A.D. and M.W. testified at trial and were subject to cross-examination. Accordingly, assuming Campbell is correct that inadmissible hearsay was entered into evidence, Campbell cannot demonstrate that there was plain error.
{16} Furthermore, when the trial court is the trier of fact, we presume that the judge disregards improper hearsay evidence unless there is affirmative evidence in the record to the contrary. State v. Crawford, 8th Dist. Cuyahoga No. 98605, 2013-Ohio-1659, ¶ 61. Campbell has not pointed to any statements made by the trial court that would lead us to conclude that the trial court considered inadmissible hearsay evidence in reaching its decision. For the aforementioned reasons, we overrule the second assignment of error.
{17} In his third assignment of error, Campbell argues that the trial court erred by improperly permitting a police sergeant to bolster the credibility of A.D.‘s testimony. Sgt. Denise DeBiase of the Richmond Heights Police Department spoke with A.D. following the rape. Sgt. DeBiase testified for the prosecution at trial and testified that A.D. “was very honest” in telling her that A.D. and Campbell had smoked marijuana prior
{18} Campbell asserts that his counsel never objected to this testimony, but the record reveals that defense counsel did, in fact, raise an objection. Tr. 249. The prosecutor then said, “Never mind, I withdraw it.” Id. The trial court did not rule on the objection, but we presume that the trial court followed the rules of evidence. We, therefore, conclude that, in its role as factfinder, the trial court did not consider DeBiase‘s testimony that A.D. was “was very honest.” See State v. Corbin, 8th Dist. Cuyahoga No. 82266, 2004-Ohio-2847, ¶ 10-19. Accordingly, we overrule the third assignment of error.
{19} In his fourth assignment of error, Campbell argues that he was denied his right to a fair trial due to prosecutorial misconduct. When reviewing a claim of prosecutorial misconduct, this court‘s task is to determine whether the comments and questions by the prosecution were improper and, if so, whether they prejudiced the appellant‘s substantial rights. State v. Treesh, 90 Ohio St.3d 460, 480, 739 N.E.2d 749 (2001). A conviction will not be reversed based on prosecutorial misconduct unless the misconduct can be said to have deprived the appellant of a fair trial based on the entire record. Lott, 51 Ohio St.3d at 166. “The touchstone of analysis ‘is the fairness of the trial, not the culpability of the prosecutor.‘” State v. Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548, 819 N.E.2d 1047, ¶ 92, quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). Because Campbell‘s counsel did not raise any objections at trial based on prosecutorial misconduct, we review Campbell‘s arguments under the plain-error standard of review. See Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, at ¶ 52.
{20} Campbell argues that the prosecutor made a number of improper statements during closing arguments. But because this was a bench trial, we presume that the trial court was able to separate the wheat from the chaff. If the prosecutor made improper comments during closing arguments, we presume that the trial court did not consider those comments in reaching its verdict, unless the defendant marshals affirmative evidence to the contrary. See State v. Nelson, 8th Dist. Cuyahoga No. 81286, 2003-Ohio-559, ¶ 21-24. Campbell has not effectively rebutted that presumption. Moreover, assuming that improper comments were made, Campbell cannot demonstrate that the outcome of the trial would have been different but for these comments. Finding no plain error, we overrule the fourth assignment of error.
{21} In Campbell‘s eighth assignment of error, he argues that he received ineffective assistance of counsel at his initial trial. A criminal defendant has the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To demonstrate ineffective assistance of counsel, a defendant must satisfy both parts of a two-prong test. Id. at 687. The first prong requires that the defendant show that his trial counsel‘s performance was so deficient that
{22} Under the second prong, the defendant must establish that counsel‘s “deficient performance prejudiced the defense.” Id. We determine prejudice by analyzing whether “there is a reasonable probability that but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Id. at 694. “Reasonable probability” is defined as probability sufficient to undermine confidence in the outcome. Id. The failure to prove either prong of the Strickland test is fatal to a claim of ineffective assistance. Id. at 697.
{23} Campbell argues that his counsel was ineffective at his initial trial because he repeatedly failed to object to inadmissible and prejudicial evidence as well as improper prosecutorial arguments. The evidence and prosecutorial arguments that Campbell alludes to are the same ones that Campbell raises in his second, third, and fourth assignments of error.
{24} With regard to the bolstering, defense counsel did object, so Campbell cannot show that counsel was deficient. And a review of the record does not convince us that counsel‘s performance affected the outcome of the trial, especially in light of the fact that the case was tried to the bench.
{25} Campbell argues that his counsel failed to object to corroborative hearsay. But the declarants were the two victims, both of whom testified, in detail, as to how Campbell had raped them. The trial court could have found the victims’ testimony
{26} In his tenth assignment of error, Campbell argues that he received ineffective assistance of counsel at his trial on the sexually violent predator specification. Applying the Strickland standard, we conclude that Campbell cannot demonstrate that he was prejudiced by any of his counsel‘s alleged deficiencies.12
{27} Before the trial on the sexually violent predator specification commenced, the trial court indicated that it was unclear on whether it could find that the specification applied based on the underlying convictions alone. The state pointed out to the trial
{28} Campbell argues that his counsel was deficient because he was not up-to-date on current law. In support of this argument, Campbell points out that his counsel argued that the underlying convictions should not be considered in determining whether the specification should be applied. But even if Campbell‘s counsel misstated the law, we fail to see how Campbell was prejudiced by this error. Counsel‘s mistaken view of the law resulted in counsel making an argument that, if true, would have favored Campbell. And even if counsel had known the law under Boynton, counsel could not have changed the fact that Campbell had been convicted for rape in the two underlying cases and that the trial court could find that Campbell was a sexually violent predator based on those convictions.
{29} Campbell also argues that his counsel was ineffective in failing to object to hearsay testimony. The state put on two witnesses, both detectives. The first detective testified about the facts underlying Campbell‘s earlier conviction for sexual battery, and Campbell argues that his counsel should have objected to portions of this testimony on the basis that it was inadmissible hearsay. The second detective testified about Campbell‘s subsequent conviction for failing to register as a sex offender following his release from prison on the sexual battery conviction. The state also entered into evidence
{30} We conclude that the result of the proceeding would not be different even if counsel had raised hearsay objections. The trial court could easily determine that the sexually violent predator specification applied in light of the two journal entries that were admitted into evidence along with the two rape convictions in the A.D. case and the M.W. case. And, further, we presume that the trial court, as the trier of fact, disregarded any inadmissible hearsay evidence. See Crawford, 8th Dist. Cuyahoga No. 98605, 2013-Ohio-1659 at ¶ 61. The tenth assignment of error is overruled.
{31} We also overrule the ninth assignment of error. Campbell argues here that the trial court erred in allowing the prosecutor to introduce prejudicial hearsay testimony at the trial on the sexually violent predator specification. This is the same hearsay testimony that Campbell raises in the tenth assignment of error. Because trial counsel did not object to the testimony, our review is limited to plain error. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, at ¶ 52.
{32} As discussed earlier, the state presented ample other evidence to demonstrate that the sexually violent predator specification could apply to Campbell. The alleged hearsay testimony pertained to a conviction that was also proven through the admission of a journal entry. Furthermore, we presume that the trial court disregarded any inadmissable hearsay evidence. Accordingly, Campbell cannot demonstrate that the
{33} In his seventh assignment of error, Campbell argues that his convictions for aggravated burglary were not supported by legally sufficient evidence. We disagree. When reviewing the record on a sufficiency challenge, “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. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{34} In the A.D. case, Campbell was convicted on one count of aggravated burglary. In the M.W. case, Campbell was convicted on two counts of aggravated burglary; one count was in conjunction with the date of the rape incident and the other was in conjunction with the date of the assault incident. All of the aggravated burglary charges were pursued under
{35} We have consistently read the Ohio Supreme Court‘s decision in State v. Steffen, 31 Ohio St.3d 111, 115, 509 N.E.2d 383 (1987), as standing for the proposition
{36} The state‘s evidence demonstrated that, on all three occasions, Campbell committed a violent crime against the victim while inside the victim‘s residence. In the A.D. case, the victim testified that Campbell choked and raped A.D. in her apartment. In the M.W. case, the victim testified that Campbell raped her in her apartment. The victim testified that on a separate occasion, Campbell repeatedly punched her while in her apartment. Regardless of how he initially gained entry, any permission given to Campbell to enter the apartments was revoked once he committed the violent acts against the victims.13 See Mitchell at ¶ 15.
{37} Campbell‘s position on appeal is that the case law in our district reads Steffen too broadly, and that we should, therefore, reconsider our interpretation of Steffen.
{38} In his fifth assignment of error, Campbell argues that the convictions stemming from the M.W. case are against the manifest weight of the evidence. In evaluating whether a conviction is against the manifest weight of the evidence, this court sits as the 13th juror. We are tasked with reviewing the entire record, weighing the evidence and all reasonable inferences, considering the witnesses’ credibility, and determining whether the jury clearly lost its way such that there was a manifest miscarriage of justice. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). We should grant a new trial only in the exceptional case where the evidence weighs heavily against the conviction. Id.
{39} Although we consider the credibility of witnesses in a challenge to the manifest weight of the evidence, we do so with the caveat that the trier of fact is in the best position to determine a witness’ credibility through its observation of his or her demeanor, gestures, and voice inflections. State v. Williams, 8th Dist. Cuyahoga No. 98210, 2013-Ohio-573, ¶ 31, citing State v. Clark, 8th Dist. Cuyahoga No. 94050, 2010-Ohio-4354, ¶ 17.
{40} Campbell argues that his convictions in the M.W. case are against the manifest weight of the evidence because M.W. was not a credible witness. Campbell
{41} We first note that violent crimes often make “little sense” and a guilty verdict is not against the manifest weight of the evidence simply because the defendant‘s violent conduct is irrational or because there is no evidence that the victim “provoked” the defendant. If anything here makes “little sense,” it is Campbell‘s argument that he can avoid a guilty verdict for raping a transgender person simply by asserting that he is heterosexual.14 And we see no connection between M.W.‘s credibility as a witness and the fact that Campbell had not expressed a sexual interest in M.W. prior to the rape.
{42} Furthermore, Campbell‘s convictions are not against the manifest weight of the evidence due to a lack of physical evidence. M.W. testified that she did not seek medical attention following the rape. The evidence for the rape in this case was based on the victim‘s testimony. “Hospital admissions do not, per se, have any relationship to credibility.” In re D.B., 8th Dist. Cuyahoga No. 84831, 2005-Ohio-1864, ¶ 14. The
{43} We also overrule Campbell‘s sixth assignment of error, which is based on his assertion that the convictions stemming from the A.D. case are against the manifest weight of the evidence. Campbell asserts that A.D. was not a credible witness and that her claim that she was raped is unsupported by the medical records. Campbell argues that the record supports his contention that A.D. and Campbell engaged in consensual sex.
{44} First, Campbell points out that there was no evidence of injuries or trauma to A.D.‘s genitalia. But “a physical injury is not a condition precedent to a conviction for rape; not all rape victims exhibit signs of physical injury.” State v. Leonard, 8th Dist. Cuyahoga No. 98626, 2013-Ohio-1446, ¶ 46. Furthermore, the state presented evidence of other physical injuries that corroborated A.D.‘s testimony that the sexual contact was not consensual. A.D. testified that just before the rape, Campbell choked her almost to the point of unconsciousness. Trial testimony established that A.D. went to two different hospitals following the rape. A.D. first went to Richmond Medical Center and reported that she had been choked and raped, and she was admitted into the emergency room. Because there was no nurse trained to perform a sexual assault examination, A.D. was told to go to Hillcrest Hospital. A.D. was later examined by a sexual assault nurse at Hillcrest.
{46} Campbell counters that there was also testimony that petechiae is not always caused by strangulation. He further notes that A.D. had red marks on her face at the time of trial that was almost a year after the alleged rape. A.D. testified that she had red bumps on her face at trial because she was under stress. According to Campbell, the red marks that the nurses found on A.D.‘s face were these same stress-related marks and not petechiae. Campbell asserts that A.D. was under extreme stress at the time that she engaged in consensual sex with Campbell, because she was having financial and relationship difficulties.
{47} But based on the record, the factfinder could determine that the red marks on A.D.‘s face at trial were different from the petechiae reported by the nurses. The testimony established that petechiae is generally flat and is beneath the skin‘s surface, whereas acne is textured and appears on the skin‘s surface. Two trained, medical professionals independently identified petechiae around A.D.‘s eyes and behind her ears at the time that A.D. reported that she was raped. In contrast, the red marks on A.D.‘s face at trial were described as “pimples.”
{49} Campbell also attacks A.D.‘s credibility because she was addicted to drugs, she owed Campbell money, and she had no financial means to pay off a drug debt she owed to Campbell. Campbell claims that A.D. engaged in consensual sex with Campbell in order to pay off her debt. “On issues of credibility, where there is no evidence [that] the [factfinder] lost its way in its assessment and resolving conflicts in evidence, we defer to the [factfinder].” State v. Ortiz, 8th Dist. Cuyahoga No. 89952, 2008-Ohio-4120, ¶ 25. The trial court was apprised of A.D.‘s drug addiction and her financial situation. As the trier of fact, the trial court was in the best position to observe A.D. and to assess her credibility. A.D. was not inherently incapable of rendering credible testimony merely
It is ordered that appellee recover from appellant the costs taxed herein.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution. Defendant‘s convictions affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
KENNETH A. ROCCO, JUDGE
SEAN C. GALLAGHER, P.J., and TIM McCORMACK, J. CONCUR