State v. CiboroState v. Ciboro
Lawrence A. Gold, for appellant.
OSOWIK, J.
Introduction
{¶ 1} In this consolidated appeal, appellant, Timothy Ciboro, appeals the judgment of the Lucas County Court of Common Pleas, sentencing him to life in prison without parole after a jury found him guilty of five counts of rape, three counts of endangering
Facts and Procedural History
{¶ 2} On May 24, 2016, appellant was indicted in case No. CR0201601971 on one count of endangering children in violation of
{¶ 3} Early in the criminal proceedings, appellant repeatedly expressed his desire to represent himself. The trial court ultimately granted appellant‘s motion but appointed “standby counsel” to provide assistance. The cases against appellant and Esten
{¶ 4} Esten Ciboro appealed his conviction, which this court decided on September 14, 2018 in State v. Ciboro, 6th Dist. Lucas Nos. L-17-1038, L-17-1039, 2018-Ohio-3705 (hereinafter ”State v. Esten Ciboro“). Because the cases were tried together, involving a common victim and the same or similar evidence and witnesses, we refer to the summary of the trial, as set forth in our recent decision. We refer to Timothy Ciboro, the appellant in this case, as “appellant” and to Esten Ciboro as “Esten.”
At trial, the state called several witnesses. As its first witness, the state called Karen Loudermill. Loudermill originally discovered S.H. during the course of her employment at Holland Building Services. According to Loudermill, she was taking trash out at the Port Authority building in Toledo on May 18, 2016, when she observed S.H. eating a Honey Bun. Loudermill stated that S.H. “was very frail, clothes was dirty, hair matted to her head.” Given S.H.‘s condition, Loudermill inquired as to whether she had run away from home. S.H. informed Loudermill that she had indeed run away from home. When asked why she decided to run away, S.H. explained that her father, [appellant], punishes her for wetting the bed by shackling her to the basement stairs, making her use the bathroom in a bucket, and forcing her to eat raw noodles and tuna off of the basement floor. Based upon S.H.‘s representations, Loudermill called 911
Officer Michael Garcia of the Toledo Police Department was the officer dispatched to S.H.‘s location following Loudermill‘s 911 call. Garcia was also the state‘s second witness at trial. Garcia generally corroborated Loudermill‘s testimony concerning S.H.‘s condition and the fact that she had been shackled in her basement by [appellant].
For its third witness, the state called Officer Paul Davis of the Toledo Police Department. Davis was working on the evening of May 18, 2016, and was charged with monitoring [Esten] and [appellant] while they awaited booking into the Lucas County jail. In order to safely place [Esten] and [appellant] into their holding cells, Davis had to first check their pockets. During the search, Davis retrieved a set of keys, including a handcuff key, from [Esten‘s] right zip cargo shorts pocket.
As its fourth witness, the state called Detective Terry Cousino of the Toledo Police Department Scientific Investigations Unit. On the evening of May 18, 2016, Cousino was tasked with executing a search warrant at [appellant‘s] residence. At trial, Cousino authenticated several photographs depicting the condition of the residence, including the basement where S.H. was shackled. Referencing the photographs, Cousino testified that the door
In the basement, Cousino observed a support post to which leg cuffs, chains, and two Olympic barbell weight plates were attached. Adjacent to the support post, Cousino found a five-gallon bucket turned upside down with a pillow lying on top and two water bottles with S.H.‘s name lying next to the bucket on the floor. Another five-gallon bucket filled halfway with ammonia was observed in close proximity to the support post. On the main floor, Cousino searched the office and found more sets of handcuffs in a dresser drawer. In the living room, Cousino discovered a set of dumbbells on the floor, which were linked together using handcuffs.
For its fifth witness, the state called S.H. According to her testimony, S.H. moved into [appellant‘s] home with her mother, who left the home when S.H. was seven years old. During the relevant time period, S.H. resided with [appellant], her sister, Ti.C., and her brother, T.Ci. [Esten], S.H.‘s stepbrother, occasionally stayed at the house when he was not staying at his mother‘s house. After S.H.‘s mother left the home, S.H. attempted to run away because she was being fed dried oats and missed her mother‘s family. Once S.H. was returned to the home, she was locked in the downstairs bathroom as a punishment for running away. According to
S.H. testified that she had bed wetting issues that prompted [appellant] to lock her in the bathroom and, eventually, in the basement. S.H. would be placed in the bathroom with the door locked whenever [appellant] and the rest of the family went out of the house. Occasionally, S.H. would be permitted to sleep in the bathroom on the main floor. On such occasions, S.H. would sleep in the bathtub without blankets or a pillow. If she urinated while sleeping in the bathtub, S.H. would be forced to take a “really cold shower,” and then stand in front of the air conditioner.
As punishment for her bed wetting, S.H. was forced to sleep in the basement without any clothes and with shackles around her feet. When asked how long she was kept in the basement, S.H. stated: “One time I was down there for, like, a year.” While in the basement, S.H. was fed raw canned vegetables, bread, dried Ramen noodles, crackers, and tuna. S.H. was also forced to urinate in a five-gallon bucket alongside the support post to which she was shackled. The bucket was partially filled with ammonia. S.H. indicated that being in the basement scared her because there were mice and spiders in the basement.
S.H. went on to testify that [Esten] “started touching [her] inappropriately” sometime after she began to be locked in the bathroom.
At the conclusion of S.H.‘s testimony, the state called its sixth witness, Hallie Dreyer. Dreyer is a forensic scientist at the Ohio Bureau of Criminal Investigation. In that capacity, Dreyer conducted a DNA analysis on, inter alia, the handcuffs that were retrieved from [appellant‘s] residence. The results of the analysis revealed that S.H. was a major contributor of DNA and [appellant] was a minor contributor of DNA on the handcuffs.
As its seventh witness, the state called Ti.C. At the time of trial, Ti.C. was seven years old. During her testimony, Ti.C. revealed that she disliked residing in [appellant‘s] home because the punishments she received were unfair and [appellant] “would have sex with [her].” Speaking about punishment, Ti.C. stated that S.H. was punished by being locked up with chains and handcuffs and placed in the basement. She went
For its eighth witness, the state called David Connell, a clinical and forensic psychologist who was retained by the state to review the state‘s evidence in this case and interview S.H. During his review, Connell performed an educational test with S.H., which revealed that S.H. had a developmental disorder. Ultimately, Connell deemed S.H. to be intellectually deficient and diagnosed her with posttraumatic stress disorder. According to Connell, the treatment of S.H.‘s condition would require intensive long-term individual therapy and, potentially, medications to address mental and emotional issues that may arise as S.H. develops.
As its ninth witness, the state called Lori Hinde. Hinde attends the Maumee United Methodist Church, where she organizes a 5K race that is held each year in honor of her father-in-law. In October 2015, [Esten] participated in the race alongside [appellant], Ti.C., and T.Ci. The family finished the race and attended an award potluck that was held inside the church at the conclusion of the race. Hinde testified that she “loaded up”
For its tenth witness, the state called Kristie Gibbs. In her spare time, Gibbs enjoys running at a Toledo Metropark near her home. During her runs, Gibbs occasionally encountered [Esten] and the rest of the family, including S.H. Gibbs testified that she observed S.H. with the family in the summer of 2015, but she noticed that S.H. was absent from the runs by the spring of 2016.
As its eleventh witness, the state called Gayline Diller. Diller became familiar with [Esten] and the family during the course of her three year employment with Costco. Diller testified that the family were “regulars” at Costco, meaning they would frequent the store on a daily basis to eat the food samples that were offered. Diller only ever observed [Esten], [appellant], Ti.C., and T.Ci. together at Costco. S.H. was not present with the rest of the family.
For its twelfth witness, the state called Sergeant Roy Kennedy of the Toledo Police Department. Kennedy was involved in the execution of the search warrant at [appellant‘s] residence. Sometime subsequent to the search, the residence was burglarized. Following the burglary, police were alerted to the fact that property bearing the family‘s name, including two
As its thirteenth and final witness, the state called an expert in the treatment and diagnosis of child abuse, Dr. Randall Schlievert. Schlievert initially interviewed S.H. and conducted a physical examination on May 23, 2016. During the interview, S.H. informed Schlievert that she ran away from home because [appellant] had shackled her in the basement for extended periods of time. S.H. made no mention of sexual abuse during the interview. Schlievert testified concerning the findings of his physical examination of S.H., indicating that he found swelling in S.H.‘s feet as well as semi-circular scarring and skin thickening on the sides and back of the right ankle that was consistent with the shape of a handcuff.
Schlievert conducted a second interview and examination of S.H. on September 15, 2016, following the reports of sexual abuse. During the second interview, S.H. detailed sexual abuse by both [Esten] and [appellant]. She told [Schlievert] that the first sexual abuse occurred from [Esten],
Despite S.H.‘s allegations of sexual abuse, her physical examination was normal. Schlievert explained that a normal examination was not inconsistent with S.H.‘s disclosure of sexual abuse. Indeed, Schlievert testified that a normal examination occurs 95 to 98 percent of the time in cases involving delayed disclosure of sexual abuse.
Based upon his interviews and examinations of S.H., as well as his review of the relevant medical records, Schlievert concluded, to a reasonable degree of medical certainty, that S.H. had been neglected and abused, both physically and psychologically. Moreover, Schlievert interviewed and examined Ti.C., who essentially corroborated S.H.‘s reports of sexual abuse.
After the trial court denied the
Following T.Ci.‘s testimony, [Esten] and [appellant] rested. They proceeded to renew their
{¶ 5} Following deliberations, the jury found appellant guilty as to all counts set forth in the indictments. The trial court ordered the following prison terms: in case No. CR0201601971: eight years as to Count 1 (endangering children); eight years as to Count 2 (endangering children); 11 years as to Count 3 (kidnapping); 11 years as to Count 4 (kidnapping); in case No. CR0201602317: 36 months (endangering children);
{¶ 6} Appellant was appointed appellate counsel and appealed the judgments. He asserts four assignments of error for our review.
Assignments of Error
I. Appellant, appearing pro se, received ineffective assistance of counsel in violation of his rights under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Ohio Constitution.
II. The trial court committed error to the prejudice to Appellant by imposing costs of prosecution without consideration of Appellant‘s present or future ability to pay.
III. The trial court erred in denying Appellant‘s Criminal Rule 29 motion.
IV. The jury‘s verdict was against the manifest weight of the evidence presented at trial.
Law and Analysis
{¶ 7} Appellant claims that, in representing himself at trial, he violated his own right to receive effective assistance of counsel, in violation of his federal and state
{¶ 8} A defendant‘s right to counsel during critical stages of the prosecution is guaranteed by the
{¶ 9} The United States Supreme Court and the Supreme Court of Ohio have recognized a criminal defendant‘s right to defend himself at trial without counsel when
{¶ 10} For the waiver to be valid, a trial court “must” explain to the defendant the following: “[1] the nature of the charges, [2] the statutory offenses included within them, [3] the range of allowable punishments thereunder, [4] possible defenses to the charges and circumstances in mitigation thereof, and [5] all other facts essential to a broad understanding of the whole matter.” Gibson at 377, quoting Von Moltke v. Gillies, 332 U.S. 708, 723, 68 S.Ct. 316, 92 L.Ed. 309 (1948). Additionally, a trial court “should” explain that the defendant “will be required to follow the same rules of procedure and evidence which normally govern the conduct of a trial.” State v. Furr, 1st Hamilton Dist. No. C-170046, 2018-Ohio-2205, ¶ 9, quoting State v. Doane, 69 Ohio App.3d 638, 646-647, 591 N.E.2d 737, ¶ 12 (11th Dist.1990). The assertion of the right to self-representation must be clear and unequivocal. State v. Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, 12 N.E.3d 1112, ¶ 72. Whether a defendant knowingly, intelligently, and voluntarily waived the right to counsel is an issue that we review de novo. State v. Griffin, 10th Dist. Franklin No 10AP-902, 2011-Ohio-4250.
{¶ 11} In this case, the trial court appointed appellant counsel before his first arraignment. Early in the proceedings, appellant expressed his desire to represent himself. Initially, the court declined appellant‘s request but did agree to replace his counsel, about whom appellant expressed misgivings. At subsequent hearings, appellant renewed his request to represent himself, and a full hearing was conducted on the matter on September 22, 2016. After the court had thoroughly complied with
{¶ 12} At a pretrial hearing on December 12, 2017, and again after the trial began, the court confirmed with appellant whether he still wished to represent himself. Appellant insisted that he did, despite admonitions by the court of the “dangers” of proceeding without counsel. The court told appellant that he could retract his decision at any point during the trial, and that the court would reappoint counsel to represent him. In the interim, appellant‘s standby counsel remained available throughout the trial.
{¶ 13} The record demonstrates that the trial judge, on multiple occasions, extensively questioned appellant as to whether he understood the seriousness and the consequences of proceeding without counsel. It advised him that, by virtue of a lawyer‘s training, a lawyer would be better equipped to present a defense to the jury. It also advised him of the serious nature of the charges he faced and the penalties for each of those charges. Each time, appellant expressed his desire to represent himself, and he signed written waivers to that effect. Moreover, appellant had counsel to assist and consult with him at every stage of the proceeding. We find that the trial court complied with
Costs of Confinement and Appointed Counsel
{¶ 15} In his second assignment of error, appellant argues that the court erred in ordering appellant to pay the costs of his confinement and the costs of his appointed counsel.
{¶ 16} In each sentencing entry, the court held that appellant was “found to have, or reasonably may be expected to have, the means to pay all or part of the applicable costs of supervision, confinement, assigned counsel, and prosecution as authorized by law. Defendant ordered to reimburse the State of Ohio and Lucas County for such costs.” Appellant argues that the record “provides no indication as to whether the trial court considered [his] ability to pay” the costs of confinement and appointed counsel.1 Moreover, appellant disputes his ability to pay given that he was ordered to serve
{¶ 17} Prior to imposing the costs at issue, the trial court must first find that the defendant has, or will have, the ability to pay. For example,
{¶ 18} In each sentencing entry, the trial court specifically found that appellant had, or reasonably was expected to have, the means to pay all or part of the costs of confinement and assigned counsel. We find that the record supports the court‘s
{¶ 19} Likewise, with regard to the costs of confinement,
Legal Sufficiency of the Evidence
{¶ 20} In his third assignment of error, appellant claims that the trial court erred when it denied his motion for an acquittal at the conclusion of the state‘s case. A motion for acquittal under
{¶ 21} Appellant challenges the sufficiency of the evidence only as it relates to case No. CR0201602809. In that case, appellant was convicted of five counts of rape, in
{¶ 22} Appellant claims that the state failed to provide sufficient evidence that he raped S.H. and Ti.C. In support, he cites a “lack of physical or forensic evidence” to establish the rapes. Specifically, appellant complains that (1) Dr. David Connell “did not address the issue of sexual abuse and did not interview [Ti.C.];” (2) Hallie Dryer, from BCI, did not test for DNA for the purpose of determining sexual abuse of either S.H. or [Ti.C.]; and (3) Dr. Schlievert‘s sexual abuse diagnosis lacks credibility because S.H. “delayed” reporting the abuse until her second appointment with him, Ti.C. made only “guarded statements” about the abuse, and because both victims underwent “normal physical exams.”
{¶ 23} In this assignment of error, appellant is essentially challenging the credibility of the expert witnesses. We do not weigh credibility on a claim of legal insufficiency. State v. Wampler, 6th Dist. Lucas No. L-15-1025, 2016-Ohio-4756, ¶ 57.
{¶ 24} The record reflects ample evidence from which a rational trier of fact could have found the essential elements of multiple rapes committed by appellant, against S.H.
Manifest Weight of the Evidence
{¶ 25} In his fourth and final assignment of error, appellant argues that his convictions were against the manifest weight of the evidence.
{¶ 26} “When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a ‘thirteenth juror’ and disagrees with the fact finder‘s resolution of the conflicting testimony.” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, quoting Thompkins, 78 Ohio St.3d at 387. In determining whether a conviction is against the manifest weight of the evidence, the 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 any conflicts in the evidence, the jury clearly lost its way and thereby created such a manifest miscarriage of justice that the conviction must be reversed and a new trial must be ordered. Thompkins at 387, citing State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 27} A conviction should be reversed on manifest weight grounds only in the most “‘exceptional case in which the evidence weighs heavily against the conviction.‘” Thompkins at 387, quoting Martin at 175. Moreover, “‘it is inappropriate for a reviewing court to interfere with factual findings of the trier of fact * * * unless the reviewing court finds that a reasonable juror could not find the testimony of the witness to be credible.‘”
{¶ 28} Here, appellant argues that the victims’ testimony was not credible because S.H. “delayed” reporting the abuse to Dr. Schlievert until their second meeting and because Ti.C. was “guarded” during her appointment with him, i.e., the same arguments advanced in support of his third assignment of error. “A conviction is not against the manifest weight of the evidence merely because the jury believed the prosecution testimony.” State v. Dean, 6th Dist. Lucas No. L-16-1301, 2018-Ohio-1740, ¶ 44, quoting State v. Houston, 10th Dist. Franklin No. 04AP-875, 2005-Ohio-4249, ¶ 38 (reversed and remanded in part on other grounds).
{¶ 29} Appellant also cites a lack of any physical or forensic evidence to support the victims’ claims of sexual abuse. First, “corroboration of victim testimony in rape cases is not required.” State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-1379, 858 N.E.2d 1144, ¶ 53. Second, we extend special deference to the fact finder‘s credibility determinations, given that it is the fact finder who has the benefit of seeing the witnesses testify, observing their facial expressions and body language, hearing their voice inflections, and discerning qualities such as hesitancy, equivocation, and candor. State v. Fell, 6th Dist. Lucas No. L-10-1162, 2012-Ohio-616, ¶ 14. The jury was free to choose which witnesses to credit and how to interpret the evidence before it. None of the arguments advanced by appellant undermine the jury‘s ultimate conclusion that the state proved all of the elements of its case against appellant beyond a reasonable doubt.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J.
Thomas J. Osowik, J.
Christine E. Mayle, P.J. CONCUR.