State v. ClayState v. Clay
Rendered on the 23rd day of October, 2009.
Anthony E. Kendell, Atty. Reg. No.0067242, Asst. Pros. Attorney, 201 W. Main Street, Troy, OH 45373
Attorney for Plaintiff-Appellee
Steven I. Dankof, Sr., Atty. Reg. No. 0010428; Thomas J. Intili, Atty. Reg. No. 0036843, 40 West Main Street, 1500 Kettering Tower, Dayton, OH 45423
Attorneys for Defendant-Appellant
GRADY, J.:
{¶ 1} Defendant, James Clay, appeals from his conviction, following a jury trial, of the offense of sexual battery,
{¶ 3} In the fall of 2006 until February of 2007, J.D. assisted Defendant in coaching the school’s football team. On Wednesday nights, after football practice, J.D. would accompany Defendant to his home, where they ate dinner and participated in bible study. Following that, J.D. slept overnight at Defendant’s home and returned with him to the school the next day.
{¶ 4} J.D. testified at Defendant’s trial that on multiple occasions when she spent the night with Defendant they engaged in consensual sexual conduct. That conduct included attempted vaginal intercourse, fellatio, cunnilingus, and Defendant’s digital penetration of J.D.’s vagina. J.D. also testified that Defendant made a recording of several provocative love songs that he gave to J.D., one of which he called “their song.” J.D. also testified concerning a telephone call she made to Defendant that police recorded, in which J.D. asked Defendant about videotapes he had made of J.D. masturbating. Defendant replied that the tapes “were gone.”
{¶ 6} The jury returned a guilty verdict on the single indicted charge of sexual battery,
{¶ 7} The trial court sentenced Defendant to a five year prison term, the maximum available for a third degree felony
FIRST ASSIGNMENT OF ERROR
{¶ 8} “THE TRIAL COURT ERRED BY DENYING APPELLANT’S MOTION TO SET ASIDE THE VERDICT AND DISMISS THE INDICTMENT.”
{¶ 9} Following the jury’s guilty verdict, Defendant moved to set aside the verdict and dismiss the indictment charging him with sexual battery in violation of
{¶ 10} Defendant’s motion was an objection based on an alleged defect in the indictment. Such motions must be made prior to trial.
{¶ 11} Proof of a culpable mental state otherwise required by
{¶ 12}
{¶ 13} The conduct proscribed by
{¶ 14} The second element is that the other person is not the spouse of the offender, when the offender is a teacher, administrator, or coach at a school in which the other person is enrolled or attends, and the offender is not enrolled in and does not attend that school. Those are specific factual circumstances which do not present an issue regarding the actor’s intent when engaged in sexual conduct with the other person. Again, the actor’s culpability is not in issue.
{¶ 16} The first assignment of error is overruled.
SECOND ASSIGNMENT OF ERROR
{¶ 17} “THE TRIAL COURT ERRED BY DENYING APPELLANT’S MOTION FOR A MISTRIAL.”
{¶ 18} Defendant moved for a mistrial following voir dire, relying on Batson v. Kentucky (1986), 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69. Defendant argued that he had been denied his rights to equal protection and due process of law because the method of selecting jury venires from the list of registered voters used in his case systematically excludes African-Americans from jury service, resulting in their under-representation in the venire from which the jurors were selected. Defendant is African-American.
{¶ 19} The trial court conducted a hearing on Defendant’s motion. The deputy jury commissioner testified that potential jurors are selected from voter registration lists and that their race is unknown when potential jurors are selected and called.
{¶ 20} Batson involved a claim of purposeful racial discrimination in the use of peremptory challenges to strike individuals from petit jury service. We addressed Defendant’s particular claim in State v. Humphrey, Clark App. No. 02CA0025, 2003-Ohio-2825, at ¶ 42, in which we wrote:
{¶ 21} “The Sixth and Fourteenth Amendments to the United States Constitution guarantee a criminal defendant the right to have a jury chosen from a fair cross section of the community. Duren v. Missouri (1979), 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579; State v. Puente (1982), 69 Ohio St.2d 136, 431 N.E.2d 987. In order to ensure this constitutional guarantee, the jury must be selected without the systematic or intentional exclusion of any cognizable group. State v. Buell (1985), 29 Ohio App.3d 215, 217, 504 N.E.2d 1161. In order to establish a violation of the fair cross section requirement, Defendant must demonstrate three things: (1) that the group alleged to be excluded is a distinctive group in the community, (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community, and (3) the
{¶ 22} Defendant points to census figures demonstrating that the proportion of the population of Miami County who are African-Americans is approximately two percent. On that basis, a jury venire comprised of forty-four persons, as Defendant’s was, may or may not include any persons who are African-Americans. The Ohio Supreme Court has approved the use of lists of registered voters to draw jury venires. State v. Johnson (1972), 31 Ohio St.2d 106. Defendant failed to demonstrate that the alleged under-representation of African-Americans in the venire called for the trial of his case was due to systematic exclusion of such persons.
{¶ 23} The second assignment of error is overruled.
THIRD ASSIGNMENT OF ERROR
{¶ 24} “THE TRIAL COURT ERRED BY DENYING APPELLANT’S MOTION TO EXCLUDE FROM THE TRIAL A RECORDED TELEPHONE CONVERSATION BETWEEN APPELLANT AND THE ALLEGED VICTIM.”
{¶ 25} J.D. testified about four occasions when Defendant directed her to masturbate, adding that he videotaped her on two of those occasions. She further testified that, one of those two times, Defendant then put down his video camera and inserted his fingers into her vagina, after which he attempted sexual intercourse with her.
{¶ 27} The trial court admitted the recorded telephone conversation between J.D. and Defendant concerning videotapes in evidence, over Defendant’s objection. Defendant argues that the trial court erred in doing so, for two reasons. First, because the evidence of their conversation tends to prove uncharged criminal conduct, pandering obscenity involving a minor,
{¶ 28} Notwithstanding the fact that evidence of a matter collateral to the criminal conduct charged may also demonstrate commission of another crime or conforming conduct, evidence of a defendant’s other acts which tend to show his scheme, plan, or system in committing the crimes with which he is charged is admissible when his alleged scheme, plan, or system is a matter material to issues of his guilt or innocence of the crime charged.
{¶ 29} J.D.’s conduct in engaging in masturbation that Defendant directed her to perform and then videotaped forms part of the immediate background of the sexual conduct between them on that occasion that J.D. described. It would be difficult to prove the criminal conduct that occurred on that occasion without also introducing evidence of the acts that preceded it, including the masturbation that Defendant videotaped, because proof of one incidentally involves the other and explains its circumstances. The trial court did not abuse its discretion when it admitted State’s Exhibit 6, the recording of the telephone conversation between Defendant and J.D., in evidence.
{¶ 30} The third assignment of error is overruled.
FOURTH ASSIGNMENT OF ERROR
{¶ 31} “THE TRIAL COURT ERRED BY DENYING APPELLANT’S MOTION
{¶ 32} The State offered the testimony of four witnesses, William Davis, who is Defendant’s father-in-law, Jeffrey Case, Ronnie Fancher, and Roland Fancher. Each testified concerning their observation of Defendant’s frequent interactions with J.D. Defendant objected that the testimony was “other act” evidence that does not fit the exceptions in
{¶ 33}
{¶ 34} Jeffrey Case, Ronnie Fancher, and Roland Fancher testified concerning the close associations between J.D. and Defendant they observed, and to several admonitions made to Defendant that those associations were inappropriate. William Davis testified that, on one occasion, while he lived at Defendant’s home, he discovered J.D. lying on a sofa in a position between Defendant’s legs at about 1:00 a.m.
{¶ 35} Even if these episodes are probative of Defendant’s bad character or a trait of his character that is bad, we find
{¶ 36} The fourth assignment of error is overruled.
FIFTH ASSIGNMENT OF ERROR
{¶ 37} “THE TRIAL COURT ERRED BY ADMITTING EXPERT TESTIMONY INTO EVIDENCE REGARDING APPELLANT’S ‘GROOMING’ OF THE ALLEGED VICTIM FOR FUTURE ACTS OF SEXUAL BATTERY.”
{¶ 38} The lead investigator in the case, Deputy Mark Slater, testified that perpetrators of sexual offenses often “groom” their victims, who are typically younger and lacking in self-esteem, by showering them with praise and attention to make them more vulnerable to sexual activity. When asked whether, based on his education, training, and experience, and his position as lead investigator, Deputy Slater “recognize(d) anything that you termed grooming in this case,” he replied in the affirmative, explaining:
{¶ 39} “A Again, in my experience and training, eighteen years in law enforcement, I felt in my opinion this was a textbook case of grooming. Here was a young lady who in the months prior to her meeting with Mr. Clay had went through a painful divorce with her parents.
{¶ 40} “As you heard her indicate to you that there had been
{¶ 41} “And although albeit reluctantly, the Defendant agreed to mentor her, using religious scriptures and symbols as a basis to maker her feel better, to let her know it was all right, to let her know that she could trust him, and as you heard her indicate in her testimony that she needed to expose herself fully to him to be vulnerable to him to allow her to become a better person.
{¶ 42} “Q Textbook example?
{¶ 43} “A It was a textbook example from beginning to end. Low self-esteem, mental anguish, mental problems, building up self-esteem, showering with compliments, both physical and religious, and it culminated in a sexual relationship.” (T. 275-276).
{¶ 44} Defendant argues that Deputy Slater’s testimony constitutes the form of opinion evidence “profiling” him as a sexual offender that we rejected in State v. Smith (1992), 84 Ohio App.3d 647, because it is mere proof of propensity prohibited by
{¶ 45} The fifth assignment of error is overruled.
SIXTH ASSIGNMENT OF ERROR
{¶ 46} “THE TRIAL COURT ERRED BY DENYING DEFENDANT’S MOTION FOR ACQUITTAL PURSUANT TO CRIM.R. 29.”
{¶ 47} In State v. Baker, Montgomery App. No. 22136, 2008-Ohio-3000, at ¶26-28, we stated:
{¶ 48} “When considering a
{¶ 49} “A
{¶ 50} “‘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.’”
{¶ 51} To prove that Defendant was guilty of sexual battery in violation of
{¶ 52} Sexual conduct is defined in
{¶ 53} “‘Sexual Conduct’ means vaginal intercourse between a male and female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body
{¶ 54} Defendant claims that the evidence presented at trial was insufficient to sustain his conviction for various reasons. For example, J.D.’s testimony regarding the incidents of sexual battery was uncorroborated, and J.D.’s testimony was inconsistent because, at trial, she testified to nine incidents, while she mentioned only four incidents to her youth pastor. Further, at no time between September 2006 and February 2007 did J.D.’s mother observe any conduct on the part of either J.D. or Defendant that suggested to her that they were having a sexual relationship. Also, despite J.D.’s testimony that one of the incidents occurred in a motel near Troy, Ohio, that Defendant had checked into, police were unable to confirm that during the relevant time period Defendant checked into any motel near Troy, Ohio.
{¶ 55} Defendant also points out that despite J.D.’s testimony about numerous phone calls, voice mails and text messages between her cell phone and Defendant’s cell phone, police did not act to obtain or review those phone records. J.D. testified that Defendant made her a compact disc on his computer containing love songs with sexually provocative lyrics. The C.D.’s file log, however, indicates that the song
{¶ 56} J.D. testified at trial that she has never been married, that between September 2006 and February 2007, she was a fifteen year old sophomore at Troy Christian School, and that Defendant was a coach at Troy Christian School. According to J.D., between September 2006 and the end of January 2007, she participated on nine separate occasions in consensual acts of sexual conduct with Defendant that included attempted vaginal intercourse, fellatio, cunnilingus, and the insertion of Defendant’s fingers into J.D.’s vagina. Most of these incidents occurred at Defendant’s home, following their bible study sessions.
{¶ 57} J.D. testified that Defendant had made a C.D. of several provocative love songs on his computer and gave it to her. One of the songs Defendant called “their song.” J.D. also testified about a phone call she made to Defendant that police tape recorded, wherein J.D. asked Defendant about videotapes he made of her masturbating. Defendant said those tapes “were gone.” The evidence presented by the State included
{¶ 58} Viewing the totality of the evidence in a light most favorable to the State, as we must, we find that a rational trier of facts could find beyond a reasonable doubt all of the essential elements of sexual battery in violation of
{¶ 59} Defendant’s sixth assignment of error is overruled. The judgment of the trial court will be affirmed.
DONOVAN, P.J. And BROGAN, J. concur.
Copies mailed to:
Anthony E. Kendell, Esq.
Steven K. Dankof, Sr., Esq.
Thomas J. Intili, Esq.
Hon. Jeffrey M. Welbaum