State of Ohio v. Jeffrey Clyde
Court of Appeals No. E-14-006
Trial Court No. 2011-CR-334
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY
Decided: May 15, 2015
[Cite as State v. Clyde, 2015-Ohio-1859.]
SINGER, J.
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Kevin J. Baxter, Erie County Prosecuting Attorney, and Mary Ann Barylski, Assistant Prosecuting Attorney, for appellee.
Karin L. Coble, for appellant.
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SINGER, J.
{¶ 1} Appellant, Jeffrey Clyde, appeals from his convictions in the Erie County Common Pleas Court. For the reasons that follow, we affirm, in part, and reverse, in part, the judgment of the trial court.
- The convictions for compelling prostitution are not supported by sufficient evidence and are against the manifest weight of the evidence.
- The convictions for attempted pandering obscenity are not supported by sufficient evidence and are against the manifest weight оf the evidence.
- Plain error occurred when the trial court tried two indictments together absent an order to do so, and absent a state‘s motion to do so.
- Trial counsel committed prejudicial ineffective assistance through multiple failures.
- The convictions with respect to the victim K.T. were not supported by sufficient evidence and are against the manifest weight of the evidence
- The trial court erred in imposing consecutive sentences without the proper findings.
{¶ 3} On August 15, 2011, appellant was indicted on 13 counts of sexual offenses, all of which involved the samе alleged victim, appellant‘s daughter, K.T. Counts 1, 2 and 3 charged appellant with gross sexual imposition, Count 4, 10, 11 and 12 charged appellant with rape, Counts 5, 7, 8 and 13 charged appellant with sexual battery, Count 6 charged appellant with corrupting with drugs, and Count 9 charged appellant with disseminating matter harmful to juveniles. Appellant pled not guilty to these charges.
{¶ 5} Following a bench trial on August 26, 2013, the trial court found appellant not guilty of Counts 1, 2, 3, 4, 10, 11 and 12 and guilty of Counts 5, 6, 7, 8, 9, 13, 14, 15, 16 and 17.
{¶ 6} Following the trial, appellant‘s trial counsel passed away. The trial court therefore appointed new counsel to represent appellant at sentencing.
{¶ 7} On December 10, 2013, the sentencing hearing was held. Appellant was classified as a Tier II and Tier III sexual offender, and was sentenced to 4 years in prison on Count 5, 17 months on Count 6, 4 years on Count 7, 4 years on Count 8, 11 months on Count 9, 4 years on Count 13, 2 years on Count 14, 2 years on Count 15, 2 years on Count 16 and 2 years on Count 17. The judge ordered the sentences imposed on Counts 5, 7, 8, 13, 14 and 15 to run consecutively and the sentences imposed on Counts 6, 9, 16 and 17 to run concurrently with each other and concurrently with Counts 5, 7, 8, 13, 14 and 15, for a total period of 20 years in prison. Appellant appealed.
{¶ 8} Appellant‘s first and second assignments of error will be addressed together. Appellant contends the convictions for compelling prostitution and attempted pandering obscenity are not supported by sufficient evidence and are against the manifest weight of the evidence.
{¶ 10} The standard of review for manifest weight is the same in a criminal case as in a civil case, and an appellate court‘s function is to determine whether the greater amount of credible evidence supports the verdict. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 12; State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). “A manifеst weight of the evidence challenge contests the believability of the evidence presented.” (Citation omitted.) State v. Wynder, 11th Dist. Ashtabula No. 2001-A-0063, 2003-Ohio-5978, ¶ 23. When determining whether a conviction is against the manifest weigh, the appellate court must review the record,
{¶ 11} Here, appellant was charged with compelling prostitution, Counts 14 and 15, and attempted pandering obscenity, Counts 16 and 17, against two different victims, B.M. and D.B. By way of background, B.M. was the 14 year-old daughter of appellant‘s girlfriend, Kristina M., and D.B. was B.M.‘s 16 year-old boyfriend. B.M., Kristina M. and D.B. were all living for a time with appellant at appellant‘s house.
{¶ 12} B.M. testified at trial her relationship with appellant “wasn‘t all that great” once she moved into the house and appellant “made comments all the time about my ass, comments all the time about how he‘s the last person that gets out of the truck so he can just see my ass.”
{¶ 13} As to Count 14, B.M. testified she was sitting around the kitchen table with her mother, D.B. and appellant when appellant “pops up with the question, [B.M.] I‘ll
{¶ 14} With respect to Counts 15, 16 and 17, B.M. testified she was in her bedroom with D.B. when appellant came in the room and said, “[h]ey guys, do you want to make a porno for me? Said I‘ll give you $200 if you make it for me and I‘ll give you an additional $300 if you let me join in.” B.M. testified appellant was not joking and she took him seriously. B.M. said she felt bad and it “[k]ind of made me feel I was like trash.” D.B. testified “we were sitting in [B.M.‘s bedroom] and Jeff walks in and asks us $200 to make a porno, $300 to join in * * *.” D.B. stated he did not think appellant was joking as no one was laughing. D.B. testified he thought B.M. took appellant seriously. D.B. also believed appellant was drinking. Kristina M. testified appellant initiated the conversation about making a porno movie when they were sitting around the table downstairs and appellant was drinking. Kristina M. further testified appellant “would make rude comments” to B.M. like “[h]ow sexy she looked in her shorts.”
{¶ 15} Appellant argues the state did not elicit any testimony from B.M. as to what “strip” meant, nor did the state elicit any testimony from B.M. or D.B. as to what “make a porno” meant. Appellant asserts B.M. did not testify that she understood “strip” or “make a porno” to mean sexual activity of any kind, nor did D.B. testify that he
{¶ 16} Appellant was charged with compelling prostitution under
(A) No person shall knowingly do any of the following:
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(3)(a) Pay or agree to pay a minor, either directly or through the minor‘s agent, so that the minor will engage in sexual activity, whether or not the offender knows the age of the minor * * *.
{¶ 17}
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 or any instrument, apparatus, or other object into the vaginal or anal opening of another.
{¶ 18} Here, as to Count 14, appellant offered B.M. $50 if she would strip for him. There is nothing in the record to explain the meaning of “strip.” However, the dictionary
{¶ 19} Moreover, the definition of “sexual activity” in
{¶ 20} With respect to Count 15, the record shows appellant offered D.B. $200 to “make a porno” with B.M. or $300 if appellant could join in. There is nothing in the record to explain the meaning of “make a porno.” The term “porno” is generally defined as “[p]ornography * * * [a] pornographic film or video.” American Heritage Dictionary of the English Language (5th Ed.), available at http://www.thefreedictionary.com/porno (accessed Apr. 21, 2015). “Pornography” and “pornographic” share the same definition which is “[s]exually explicit writing, images, video, or other material whose primary purpose is to cause sexual arousal.” Id. at http://www.thefreedictionary.com /pornography (accessed Apr. 21, 2015).
{¶ 21} Here, in reviewing the evidence and considering the testimony of D.B. and B.M., appellant‘s offer to pay money to the minors to “make a porno,” and pay more money if appellant could join in, suggests a sexual purpose. That appellant intended sexual activity, as defined in
{¶ 22} Appellant was also charged with attempted pandering obscenity under
(A) No person, with knowledge of the character of the material or performance involved, shall do any of the following:
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(3) Create, direct, or produce an obscene performance that has a minor as one of its participants * * *.
{¶ 23}
No person, purposely or knowingly, and when purpose or knowledge is sufficient culpability for the commission of an offense, shall engage in conduct that, if successful, would constitute or result in the offense.
{¶ 24} “Criminal attempt” is an act or omission which constitutes a substantial step in a course of conduct planned to culminate in the party‘s commission of the crime. State v. Woods, 48 Ohio St.2d 127, 357 N.E.2d 1059 (1976), paragraph one of the syllabus, death penalty vacated, 438 U.S. 910, 98 S.Ct. 3133 (1978), overruled on other grounds by State v. Downs, 51 Ohio St.2d 47, 364 N.E.2d 1140 (1977). A substantial step consists of conduct which is “strongly corroborative of the actor‘s criminal purpose.”
{¶ 25} Appellant submits, with respect to criminal attempt, there is no evidеnce which indicates preparation or that with the words he spoke he had formulated a criminal intention to commit pandering. We agree. A review of the record shows there is insufficient evidence that appellant undertook a “substantial step towards” creating an obscene performance with minors as participants. The only evidence in support of the attempted pandering counts was appellant‘s verbal offer to pay B.M. and D.B. money to “make a porno.” No evidence was presented that appellant actuаlly had the money that he offered the minors, that anyone disrobed or that a time or place was arranged. Nor is there evidence of any further discussion or offer of money to “make a porno” after appellant‘s initial offer was refused by B.M. and D.B. Because there was insufficient evidence presented to prove beyond a reasonable doubt that appellant attempted to pander obscenity involving B.M. or D.B., we must reverse and vacate appellant‘s convictions as to Counts 16 and 17.
{¶ 26} In light of the foregoing, appellant‘s first assignment of error is well-taken as to Count 14 and not well-taken as to Count 15, and appellant‘s second assignment of error is well-taken as to Counts 16 and 17.
{¶ 28} Counts 5, 7, 8, and 13, involve sexual battery, which
{¶ 29} Count 6, charged corrupting with drugs, defined by
[a] person, with knowledge of its character or contеnt, * * * recklessly * * * [d]irectly sell[ing], deliver[ing], furnish[ing], disseminat[ing], provid[ing], exhibit[ing], rent[ing], or present[ing] to a juvenile * * * any material or performance that is obscene or harmful to juveniles[.]
{¶ 31} “Obscene performance” is defined in
contains a series of displays or descriptions of sexual activity, masturbation, sexual excitement, nudity, bestiality, extreme or bizarre violence, cruelty, or brutality, or human bodily functions of elimination, the cumulative effect of which is a dominant tendency to appeal to prurient or scatological interest, when the appeal to such an interest is primarily for its own sake or for commercial еxploitation, rather than primarily for a genuine scientific, educational, sociological, moral, or artistic purpose.
{¶ 32} At trial, K.T. testified appellant showed her and Morrow a video on his computer of two women who were naked and involved in sex acts.
{¶ 33} We find, based upon the evidence offered at trial as set forth above, sufficient evidence was offered to prove, beyond a reasonable doubt, that appellant committed Counts 5, 6, 7, 8, 9 and 13 of the indictment. In addition, upon our review of
{¶ 34} In the third assignment of error, appellant asserts plain error occurred when the trial court tried the two indictments together without a motion by the state or an order pursuant to Crim.R. 13. Appellant argues the two indictments alleged dissimilar offenses which occurred at different times with different victims and the evidence of the offenses from the second indictment would not have been admissible in a trial on the first indictment and vice versa. He further asserts the evidence is not simple and distinct because it is highly inflammatory.
{¶ 35} The state maintains since the grand jury issued a superseding indictment which added counts to the original indictment, Crim.R. 8 does not provide that the court order the case be tried together, and the state was not required to move to try all of the counts together.
{¶ 36} Crim.R. 8(A) provides that multiple offenses may be charged in the same indictment if the offenses are “of the same or similar character,” or “based on the same act or transaction or * * * two or more acts or transactions connected together or constituting parts of a common scheme or plan,” or “part of a course of criminal conduct.” Similarly, indictments may be tried together if the offenses could have been joined in a single indictment. Crim.R. 13. The joinder of charges is the rule rather than the exception, and it is favored by the law. State v. Whipple, 2012-Ohio-2938, 972 N.E.2d 1141, ¶ 14 (1st Dist.). A party who claims joinder of offenses is improper has the
{¶ 37} Here, the record shows appellant did not object to the joinder of the indictments for trial nor did appellant move the trial court to sever the counts for trial. A party‘s failure to object at trial waives all but review but plain error. State v. Foust, 105 Ohio St.3d 137, 2004-Ohio-7006, 823 N.E.2d 836, ¶ 139. “Plain error does not exist unless it can be said that but for the error, the outcome of the trial would clearly have been otherwise.” State v. Wogenstahl, 75 Ohio St.3d 344, 357, 662 N.E.2d 311 (1996). The record indicates appellant was initially charged with thirteen counts of sexual offenses against one minor victim, and was then charged with four additional sexual offenses against two different minor victims. The counts arose out of appellant‘s alleged sexual relationship with his minor daughter or appellant‘s inappropriate sexual comments to his girlfriend‘s minor daughter and her minor boyfriend. The offenses all allegedly occurred at appellant‘s home where the minors lived, at different times, with appellant. All counts of the two indictments were filed under one case number and were tried together to the bench.
{¶ 39} In his fourth assignment of error, appellant asserts his trial counsel committed ineffective assistance through multiple failures, including not filing a motion to sever the indictments and not objecting to prejudicial evidence and hearsay testimony.
{¶ 40} Two objective factors must be proven to establish ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “First, the defendant must show that counsel‘s performance was deficient.” Id. “Second, the defendant must show that the deficient performance prejudiced the defense.” Id. Counsel‘s errors must have been serious enough to disrupt the protections afforded through the Sixth Amendment and the defendant‘s right to a fair trial. Id. An attorney‘s trial strategy does not usually provide for a claim of ineffective assistance of
{¶ 41} Here, appellant contends his trial counsel was ineffective for failing to object to the joint trial of two indictments, for failing to object to prejudicial, “other acts” evidence, for eliciting evidence contrary to appellant‘s interest, for failing to object to numerous hearsay statements made by various witnesses and for failing to object to testimony concеrning polygraphs.
{¶ 42} As to the failure to object to “joint trials,” given our ruling under the third assignment of error that no evidence was presented that appellant was prejudiced by one trial to the bench on all counts in the indictments, we cannot find counsel‘s failure to object to “joint trials” affected the outcome of appellant‘s trial or amounted to ineffective assistance of counsel.
{¶ 43} Next, as to counsel‘s failure to object to prejudicial, “other acts” evidence, appellant refers to testimony regarding his bad conduct or dishonorablе discharge from the navy for a “computer criminal history” that showed indecent acts or liberties with a child, as well as a question asked of another witness as to the witness‘s awareness of the cultivation of marijuana in appellant‘s closet.
{¶ 45} Appellant cites other instances of alleged ineffective assistance of counsel in failing to object to hearsay statements and testimony concerning polygrаphs. However, with respect to each instance, appellant fails to show the deficiency in counsel‘s performance or that such conduct affected the outcome of the trial. Applying Strickland to the record herein and the examples cited by appellant, we are unable to find that counsel‘s representation fell below a standard of reasonableness or that, but for the perceived errors of counsel, appellant would not have been convicted. Accordingly, we find that appellant‘s fourth assignment of error not well-tаken.
{¶ 46} In his sixth assignment of error, appellant contends the trial court failed to make all of the findings required under
{¶ 47} The standard of appellate review of felony sentences is set forth in
{¶ 48} Here, appellant submits, at the least, the trial court failed to find one of the factors of
{¶ 49} The state counters the trial court did make the required findings under
{¶ 50} Consecutive sentences may be imposed at the court‘s discretion. Before imposing consecutive sentences, the trial court must find that consecutive sentences are “necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public,” and that one of the circumstances listed at
{¶ 51} Here, a review of the record, including the transcript of the sentencing hearing, shows the trial court found “consecutive sentences are necessary in proportion to the seriousness of the [appellant‘s] conduct and the danger of future crimes the [appellant] poses to the public.” This satisfies the first and second statutory requirements under
{¶ 52} The judgment of the Erie County Court of Common Pleas is affirmed, in part, and reversed, in part. Appellant‘s convictions on Counts 14, 16 аnd 17 are vacated, and this case is remanded for resentencing in accordance with
Judgment affirmed, in part, and reversed, in part.
State v. Clyde
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. _______________________________ JUDGE
Arlene Singer, J. _______________________________ JUDGE
James D. Jensen, J. CONCUR. _______________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.