STATE OF OHIO v. DONOVIN W. CLARK
C.A. CASE NO. 2013 CA 52
IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO
March 7, 2014
[Cite as State v. Clark, 2014-Ohio-855.]
DONOVAN, J.
T.C. NO. 12CRB5058 (Criminal appeal from Municipal Court)
Rendered on the 7th day of March, 2014.
MARC T. ROSS, Atty. Reg. No. 0070446, City of Springfield Prosecutor‘s Office, 50 E. Columbia Street, 4th Floor, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
JOHN PAUL RION, Atty. Reg. No. 0067020 and NICOLE RUTTER-HIRTH, Atty. Reg. No. 0081004, 130 W. Second Street, Suite 2150, P. O. Box 1262, Dayton, Ohio 45402
Attorneys for Defendant-Appellant
DONOVAN, J.
{1} Defendant-appellant Donovin Clark appeals his conviction and sentence for
{2} During the fall of 2012, Clark began taking classes at Career Technology Center (CTC) located in Clark County, Ohio. The evidence adduced at trial suggested that shortly after starting classes, Clark began making unwanted and repeated physical contact with several female students also enrolled at CTC. Specifically, Clark was accused of touching the girls’ buttocks, breasts, thighs, and stomachs without permission and after repeatedly being told to stop.
{3} On November 19, 2012, a group of female students approached Ms. Amy Schakat, the Director of Student Services and Academics at CTC, in order to discuss Clark‘s continued inappropriate touching. Schakat is one of three “principals” at CTC who oversee student conduct and handle student disciplinary matters. The group of female students, Т.Н., С.М., J.C., K.B., B.E., and E.H., informed her that since the fall term began, Clark had touched each of them inappropriately at various times. Schakat wrote down the girls’ allegations during the brief meeting. The allegations were reported to the school superintendent who advised Schakat to bring Clark in for a discussion.
{4} During the meeting with Schakat on November 26, 2012, Clark denied that he inappropriately touched J.C. Clark further informed Schakat that he did not remember any of the incidents involving C.M., K.B., or B.E. Clark admitted that he grabbed T.H.‘s buttocks during a graphic arts class in the middle of September for which he received a one-day in school suspension. Schakat explained to Clark that the touching and grabbing was inappropriate and pointed out that he had repeatedly been told to stop by the girls he
{5} On November 27, 2012, Schakat contacted the Springfield Police Department regarding the allegations against Clark. Springfield Police Detective Trent King of the Crimes Against Persons Unit, Juvenile Division, was subsequently assigned to oversee the case. On November 30, 2012, Det. King separately interviewed each of the female victims at the CTC. After the interviews, Det. King filed warrants for the arrest of Clark for six counts of sexual imposition. Det. King arrested Clark on December 7, 2012, on the outstanding warrants and transported him to Springfield Police headquarters. Det. King questioned Clark regarding the victims’ allegations. Clark admitted to grabbing T.H.‘s buttocks, stating that he “went too far.” Clark further admitted that he smacked K.B. on the buttocks on two separate occasions, but he said he was only joking. Clark admitted to touching B.E. on her thighs, and that E.H. slapped his hand away when he touched her. During the interview, Clark did not deny that he grabbed C.M.‘s buttocks nor that he tried to bury his face between her breasts. While acknowledging that his conduct was inappropriate, Clark stated that he “meant nothing by it and was just joking around.” Clark additionally stated that although he knew that the girls told him repeatedly to stop the unwanted touching, he explained that he “zones out” and the girls’ pleas to stop simply don‘t “register” with him.
{6} Clark was subsequently charged in six separate criminal complaints, each containing one count of sexual imposition corresponding to the six individual female
{7} It is from this judgment that Clark now appeals.
{8} Clark‘s first assignment of error is as follows:
“THERE WAS INSUFFICIENT EVIDENCE PRESENTED AT TRIAL TO SUPPORT A CONVICTION FOR SEXUAL IMPOSITION.”
{9} In his first assignment, Clark contends that the State adduced insufficient evidence at trial to support his conviction for sexual imposition. Specifically, Clark argues that the evidence was insufficient to establish: 1) that the touching was for the purpose of sexual arousal or gratification in order to constitute “sexual contact” under
{10} When a defendant challenges the sufficiency of the evidence, he is arguing that the State presented inadequate evidence on an element of the offense in order to sustain the verdict as a matter of law. State v. Hawn, 138 Ohio App.3d 449, 471, 741 N.E.2d 594 (2d Dist.2000). “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
{11} Ohio‘s sexual imposition statute,
{12} Initially, we note that evidence was adduced from which the jury could have concluded that Clark had sexual contact with T.H. because there was undisputed evidence that he grabbed her buttocks with both hands. See
{13} In the instant case, sufficient evidence was adduced at trial whereby the jury could find that Clark‘s purpose in grabbing T.H.‘s buttocks was for sexual gratification or arousal. Initially, we note that Clark limited his inappropriate touching to female students. Significantly, when Clark was accused of inappropriately touching his female classmates, it was almost always in an erogenous zone as defined in
{14}
{15} The Supreme Court of Ohio has addressed the corroboration requirement set forth in
{16} In Economo, the only evidence corroborating any element of the offense was that the alleged victim promptly reported the incident to the authorities, appeared to be upset, and did not want to be alone with the alleged perpetrator of the offense. These circumstances were deemed to constitute sufficient corroboration. In the instant case, T.H.
{17} Upon being confronted by Cabaluna about the incident, Clark acknowledged that his behavior was inappropriate and stated that “I know; I get worked up, and I don‘t think about what I am doing.” Moreover, Clark admitted that he grabbed T.H.‘s buttocks when he was later confronted by Schakat about the incident. Clark also admitted to Det. King that he grabbed T.H.‘s buttocks when he was interviewed at the Springfield Police Department. Lastly, we note that corroboration is a question of sufficiency to be determined by the trial court in considering a
{18} Lastly, the evidence adduced by the State was sufficient to establish that Clark knew that his conduct was offensive to T.H., or that he acted recklessly when he touched her inappropriately. A person acts “knowingly” when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. See
{19} At the time of the incident, Clark and T.H. had only known each other for
{20} Clark‘s first assignment of error is overruled.
{21} Clark‘s second assignment of error is as follows:
“THE TRIAL COURT ERRED IN EXCLUDING EVIDENCE BY THE DEFENSE THAT THE DETECTIVE MISSTATED WHAT CONSTITUTES SEXUAL IMPOSTION, PROVIDING THE JURORS WITH CONFLICTING INSTRUCTIONS OF LAW AS TO THE CRIME FOR WHICH APPELLANT WAS CHARGED.”
{22} In his second assignment, Clark argues that the trial court erred when it limited defense counsel from cross-examining Det. King regarding his purported misstatement of the elements of
{23} Initially, we note that counsel failed to object to the admission of the recorded interview conducted by Det. King, wherein he made the alleged misstatement of law. Absent an objection or a request for a limiting instruction, Clark has waived all but plain error. An appellate court has the discretion to notice plain error under
{24} The following exchange occurred during the cross-examination of Det. King:
Defense Counsel: Okay. Now when you interviewed Mr. Clark you kind of explained to him what he was charged with and what the sexual imposition was correct?
Det. King: Yes sir.
Q: And were you truthful when you told him that?
A: Yes sir.
Q: Are you familiar with the statute that you were quoting?
A: Yes I‘m familiar with..... Q: Okay.
A: ....the sexual imposition statutes.
Q: And you said that it‘s illegal to touch the erogenous zone of another, is that what you told Mr. Clark?
A: I, among other things, yes sir.
Q: Okay and I assume you‘re familiar with the law?
A: Yes sir.
Q: Okay. I have before..........
The State: I don‘t know what he‘s showing him.
Defense Counsel: Oh I‘m sorry, the statute. I apologize.
The Court: May I may I look?
Defense Counsel: Could you read for me the statute for sexual imposition according to the Ohio Revised Code?
The State: I‘m going to object. The instruction should come from the Court I would think.
Defense Counsel: The instructions already came from the witness. I need to clarify Your Honor.
The Court: Well if I could have counsel approach.
*** SIDEBAR
The Court: What‘s the purpose of this? Defense Counsel: The purpose Your Honor is he says it‘s just unwanted touching [of] the erogenous zone. It‘s not sexual contact. And I think that‘s a key distinction.
The Court: Uh but it‘s the Court‘s function to advise the jury (inaudible) what what (inaudible).
Defense Counsel: Because he‘s a very credible witness Your Honor and they can assume that he knows and that‘s the reason why.
The Court: You‘re saying that he misquoted the statute.
Defense Counsel: Yes.
The Court: *** why is that relevant?
Defense Counsel: Because Your Honor it‘s relevant because if he didn‘t violate the statute then he shouldn‘t be charged.
The State: Well we‘re a little late for that but (inaudible).
Defense Counsel: Well I attempted to do that in my opening.
The State: Instructions of law come from the Court. They‘re finders of fact whether it meets the of the [sic] law is given to them. They‘re the finders of fact.
The Court: The objection‘s sustained.
*** END OF SIDEBAR
Defense Counsel: Isn‘t it true that sexual contact is required? Is that permittable [sic] Your Honor?
The Court: Well you asked a question so it‘s pending. Det. King: Yes sir.
Defense Counsel: Okay. And what is your definition of sexual contact?
The State: Objection.
Defense Counsel: .....as an officer?
The Court: Sustained. The Court will instruct the jury as to the law that it must apply to the facts as they find them to be when they are deliberating. (Emphasis added).
{25} Upon review, we find that Clark‘s argument that he was prevented from cross-examining Det. King regarding his alleged misstatement of law misconstrues the record. The record establishes that defense counsel was properly prevented from introducing a copy of
{26} Instructions regarding the pertinent law must come from the court. We note that Clark does not argue on appeal that the trial court‘s instructions to the jury regarding the necessary elements of sexual imposition were incorrect. We further note that it is generally accepted that the jury is presumed to follow the instructions of law given to it by the court. State v. Raglin, 83 Ohio St.3d 253, 264, 699 N.E.2d 482, 492 (1998). If defense counsel had simply wanted to emphasize that Det. King had not advised Clark of all of the elements of
{27} Clark‘s second assignment of error is overruled.
{28} Clark‘s third and final assignment of error is as follows:
“APPELLANT‘S SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WAS VIOLATED WHEN COUNSEL FAILED TO FILE A MOTION TO SUPPRESS, WHICH LIKELY WOULD HAVE RESULTED IN SUPPRESSION OF HIS FORCED INCULPATORY STATEMENTS.”
{29} In his third and final assignment, Clark argues that his trial counsel was ineffective for failing to file a motion to suppress the statements he made to Det. King during the recorded interview. Specifically, Clark argues that because he was improperly advised of the elements of sexual imposition by Det. King, his inculpatory statements were induced by misstatements of law and would have been suppressed had his counsel properly filed a motion to suppress.
{30} To reverse a conviction based on ineffective assistance of counsel, an appellant must demonstrate both that trial counsel‘s conduct fell below an objective standard of reasonableness and that the errors were serious enough to create a reasonable probability that, but for the errors, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Trial counsel is
{31} “The failure to file a suppression motion is not per se ineffective assistance of counsel. State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52, 2000-Ohio-448. Rather, trial counsel‘s failure to file a motion to suppress constitutes ineffective assistance of counsel only if the failure to file the motion caused Defendant prejudice; that is, when there is a reasonable probability that, had the motion to suppress been filed, it would have been granted.” (Citations omitted.) State v. Wilson, 2d Dist. Clark No. 08CA0445, 2009-Ohio-2744, ¶ 11. See, also, State v. Nields, 93 Ohio St.3d 6, 34, 752 N.E.2d 859 (2001).
{32} Clark argues that if Det. King had properly informed him of all of the elements of the offense of sexual imposition, he would not have admitted to grabbing T.H.‘s buttocks. Thus, Clark asserts that his inculpatory admission to Det. King could not have then been used to corroborate T.H.‘s testimony regarding the incident. However, Clark ignores the fact that prior to making admissions to Det. King, he had already admitted to Cabaluna and Schakat that he had grabbed T.H.‘s buttocks, an act for which he received a one-day in-school suspension. Clark also acknowledged to Schakat that he did “not hear no or stop” when he is in a “zone.” On the date of the incident involving T.H., Clark told Cabaluna, “I know I get worked up.” Clark never denied touching T.H.‘s buttocks, and his
{33} Additionally, we note that defense counsel‘s failure to file a motion to suppress Clark‘s statements to Det. King may have been a matter of reasonable trial strategy, which does not constitute deficient performance. State v. King, 2d Dist. Montgomery No. 18463, 2002-Ohio-2929. Simply put, filing a motion to suppress is not without risks, and the likelihood of success of such a motion was not a given in this case. State v. Brown, 115 Ohio St.3d 55, 69, 2007-Ohio-4837, 873 N.E.2d 858.
{34} Moreover, even if defense counsel had filed a motion to suppress Clark‘s inculpatory statements and the trial court had granted the motion, we cannot find that the result of the trial would have been any different because the State adduced a substantial amount of evidence establishing Clark‘s guilt with respect to the incident involving T.H. Accordingly, given the substantial amount of additional testimony from Cabaluna and Schakat which corroborated T.H.‘s testimony, aside from Clark‘s statements to Det. King, we cannot say that had defense counsel filed a motion to suppress, there is a reasonable probability that Clark would have been acquitted.
{35} Clark‘s third and final assignment of error is overruled. Judgment affirmed.
FAIN, J. and WELBAUM, J., concur.
Marc T. Ross
Jon Paul Rion
Nicole Rutter-Hirth
Hon. Thomas E. Trempe