{¶ 2} In 2003 appellant lived in Goshen Township with his parents, his girlfriend, Toni Armas, and her two children. C.P., 12 years old, lived with her parents in the same neighborhood. C.P. had been friends with Armas for some time, and in April 2003, their friendship grew as C.P. was experiencing some conflict at home. Early that month, Armas introduced appellant and C.P. Armas told C.P. that appellant "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. Armas and appellant showed C.P. a pornographic video purportedly to provide some sexual education. After the tape was viewed for a time appellant kissed C.P. on the cheek.
{¶ 3} On April 9, 2003, appellant and Armas left for Texas. Before leaving he kissed C.P. on the lips. While in Texas, he phoned C.P. almost daily. Appellant and Armas returned from Texas on May 2, 2003. Appellant's relationship with C.P. deepened, and involved holding hands and kissing. Later that month, appellant and C.P. played a game of "horse" with the understanding that C.P. would have sex with appellant if she lost the game. C.P. lost twice. On May 16 or 17, 2003, C.P. stayed overnight at appellant's home. After Armas fell asleep, appellant digitally penetrated C.P.'s vagina and fondled her breasts. C.P. pushed him away, but appellant later pulled down her shorts and underwear and performed oral sex on C.P.
{¶ 4} On May 23, 2003, C.P. was at appellant's home to celebrate his birthday. Appellant repeatedly exposed his genitals to her and at one point forced his penis into her mouth.
{¶ 5} On May 30, 2003, appellant, Armas, and C.P. went to a hotel together, "to get it over with," meaning that C.P. would have sex with appellant. On the way, they stopped at a convenience store and purchased condoms and snacks. C.P. was told to hide in appellant's car while appellant checked into the hotel. Appellant and C.P. entered the room together while Armas remained outside. C.P. showered and redressed, and joined appellant on the bed. Appellant began kissing her. C.P. told him 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 C.P.'s relationship with appellant. C.P. at first denied the allegation that she and appellant had been sexually involved, but later related the above-described 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 Armas took on the way to the hotel, and police discovered documentary evidence confirming the sequence of events.
{¶ 7} On July 30, 2003, appellant was indicted on three counts of rape in violation of R.C.
{¶ 8} Assignment of Error No. 1:
{¶ 9} "The trial court erred in excluding the defendant-appellant during the exercise of peremptory challenges, in violation of his rights to confrontation and due process."
{¶ 10} 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 his first assignment of error, appellant argues that he was denied his right to be present at a critical stage of the trial (the impaneling of the jury) as required by Crim.R. 43(A).
{¶ 11} This rule provides:
{¶ 12} "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 his presence shall not prevent continuing the trial to and including the verdict."
{¶ 13} A defendant's absence, however, 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 his absence, and to that extent only." Snyder v.Massachusetts (1934),
{¶ 14} 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,
{¶ 15} In the present case, the failure to comply strictly with Crim.R. 43(A) is not a structural error. See, e.g., Statev. Vinzant, Montgomery App. No. 18546,
{¶ 16} 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).
{¶ 17} 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),
{¶ 18} In the present case, appellant's absence when peremptory challenges were made did not thwart a fair and just hearing. See Snyder,
{¶ 19} Assignment of Error No. 2:
{¶ 20} "Appellant was denied the effective assistance of counsel when trial counsel failed to object to appellant's absence at a critical stage of his trial, failed to exercise peremptory challenges to excuse certain jurors, failed to ask the victim about prior false accusations, failed to request the victim's statements under Crim.R. 16, and failed to properly prepare appellant's defense."
{¶ 21} To establish a claim of ineffective assistance of counsel, appellant must show that his trial attorney's performance was deficient and prejudicial. Strickland v.Washington (1984),
{¶ 22} Appellant first contends that his trial counsel was ineffective for failing to object to his absence when peremptory jury challenges were made. In our resolution of appellant's first assignment of error, we found that appellant's absence during this portion of the proceedings constituted harmless error. Consequently, he cannot demonstrate that he suffered any prejudice from his counsel's failure to object his absence.
{¶ 23} Second, appellant contends that his trial counsel was ineffective for failing to make peremptory challenges. This contention is unsupported by the record. This court has not been provided with a record of the peremptory challenges which were exercised in chambers. Consequently, this court is unable to review appellant's contention that his trial counsel failed to make peremptory challenges. Since the record does not affirmatively support appellant's contention, this court must presume regularity. See State v. Hill, Fairfield App. No. 98CA67,
{¶ 24} Appellant argues thirdly that his trial counsel was ineffective for not questioning the victim about prior false or recanted allegations of rape. Review of the record reveals that appellant's attorney had no knowledge of such allegations. At a sidebar conference, counsel indicated to the trial judge that C.P. had confided in appellant that she had been raped before. However, counsel stated: "I don't know whether it was falsely [sic] or not." It is evident that counsel had no knowledge that C.P. had made and recanted allegations of rape in the past. Consequently, he was not ineffective for not pursuing this line of questioning.
{¶ 25} Fourth, appellant argues that 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). Appellant concedes that any such statements were not preserved for appellate review, and that he has consequently waived this issue. We agree that, absent this evidence, we are compelled to presume the regularity of the proceeding and the competency of counsel's trial strategy. See Hill.
{¶ 26} Finally, appellant argues that his trial counsel was ineffective because counsel did not effectively present his alibi defense. Specifically, appellant argues that his counsel should have subpoenaed records from his employer which would have placed appellant in Texas through May 16, 2003. Likewise, he argues that trial counsel should have subpoenaed cash register receipts and store surveillance tapes to establish his alibi for May 30, 2003.
{¶ 27} Failure to subpoena evidence does not amount to a substantial violation of an essential duty to a client absent a showing that the evidence would have assisted the defense. SeeMiddletown v. Allen (1989),
{¶ 28} Assignment of Error No. 3:
{¶ 29} "The judgments of conviction are contrary to law and to the due process clause of the
{¶ 30} Assignment of Error No. 4:
{¶ 31} "The judgments of conviction are contrary to the manifest weight of the evidence."
{¶ 32} Because appellant has combined his argument related to the sufficiency and manifest weight of the evidence, we will likewise consider the assignments of error together.
{¶ 33} The relevant inquiry when addressing a sufficiency of evidence claim 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. Jenks (1991),
{¶ 34} While the test for sufficiency requires a determination of whether the state has met its burden of production at trial, "a manifest weight challenge questions whether the state has met its burden of persuasion." Id. at 390. When a defendant maintains that his conviction is against the manifest weight of the evidence, "an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the 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),
{¶ 35} "[A] finding that a conviction is supported by the weight of the evidence must necessarily include a finding of sufficiency. Thus, a determination that [a] conviction is supported by the weight of the evidence will also be dispositive of the issue of sufficiency." State v. Hinojosa, Butler App. NO. CA2003-05-104,
{¶ 36} Appellant first contends that his convictions for attempted rape are not supported by sufficient evidence and are contrary to the manifest weight of the evidence. Specifically, appellant argues that C.P.'s testimony was not credible, and alleges that her testimony was in part, coached.
{¶ 37} Attempted rape requires that the actor (1) intend to compel submission to sexual conduct by force or threat, and (2) commit some act that "`convincingly demonstrate[s]'" such intent. See State v. Heinish (1990),
{¶ 38} Although a reviewing court looks at the record anew when considering whether a verdict at trial is against the manifest weight of evidence, the trier of fact, not the appellate court, is in the best position to evaluate testimony and determine the credibility of witnesses. State v. DeHass (1967),
{¶ 39} This court has thoroughly reviewed the record, and with regard to the counts charging attempted rape, we cannot say that the jury clearly lost its way and committed a miscarriage of justice. Consequently, we find the convictions are supported by the weight of the evidence. This conclusion encompasses a finding that sufficient evidence was presented to support each element of the offense. See Hinojosa; see, also, State v. Johns,
Clermont App. No. CA2003-07-055,
{¶ 40} Appellant next contends that his conviction for contributing to the unruliness of a minor is unsupported by the evidence. He argues that the state failed to present evidence, beyond a reasonable doubt, that C.P. was "unruly."
{¶ 41} An unruly child is defined, in part, as "[a]ny child who behaves in a manner as to injure or endanger his or her health or morals[.]" R.C.
{¶ 42} Lastly, appellant submits his conviction on a charge of conspiracy to commit rape is contrary to law as such is not a crime defined by the Ohio Revised Code. The state concedes that R.C.
{¶ 43} Appellant's third and fourth assignments of error are sustained with regard to his conviction for conspiracy to commit rape, as charged in the October 29, 2003 indictment, and his conviction and sentence on this count is vacated. The third and fourth assignments of error are overruled in all other respects.
{¶ 44} Assignment of Error No. 5:
{¶ 45} "The trial court erred when it imposed consecutive sentences without following the sentencing guidelines."
{¶ 46} Pursuant to R.C.
{¶ 47} "(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 * * * [R.C.] 2929.16, [R.C.] 2929.17, or [R.C.] 2929.18 * * *, or was under post-release control for a prior offense.
{¶ 48} "(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 * * * was so great or unusual that no single prison term for any of the offenses * * * adequately reflects the seriousness of the offender's conduct.
{¶ 49} "(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender."
{¶ 50} When imposing consecutive sentences, the trial court must make the statutorily enumerated findings and give reasons supporting those findings at the sentencing hearing. State v.Comer,
{¶ 51} While appellant argues that the trial court failed to make the required findings, review of the record reveals otherwise. At the sentencing hearing, the trial court made findings that "consecutive sentences I believe are required in this case to protect the community from future crimes of this individual," and that "consecutive sentences are not disproportionate to the seriousness of his conduct and the danger he does pose to the public." Finally, the trial court found that "[t]wo or more of these offenses were committed as a course of conduct which caused harm such that no single term of incarceration will in the Court's view adequately reflect the seriousness of the conduct." Because the trial court made the findings required to impose consecutive sentences we overrule the assignment of error.
{¶ 52} Assignment of Error No. 6:
{¶ 53} "The trial court erred when it classified appellant as a sexual predator."
{¶ 54} In his final assignment of error, appellant argues that the trial court's decision classifying him a sexual predator was made in error, as the record does not contain evidence indicating that he is likely to commit another sexually oriented offense.
{¶ 55} A sexual predator classification must be supported by clear and convincing evidence. R.C.
{¶ 56} A sexual predator is statutorily defined as a person "who has been convicted of or pleaded guilty to committing a sexually oriented offense and is likely to engage in the future in one or more sexually oriented offenses." R.C.
{¶ 57} R.C.
{¶ 58} In the present case, the trial court considered the evidence that weighed in favor of finding some of the statutory factors listed in R.C.
{¶ 59} Judgment affirmed in part, and appellant's conviction and sentence for complicity to commit rape as charged in the October 29, 2003 indictment, is vacated.
Young, P.J., and Powell, J., concur.