STATE OF OHIO, PLAINTIFF-APPELLEE, v. NED L. COOK, DEFENDANT-APPELLANT.
CASE NO. 1-11-66
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
November 18, 2013
[Cite as State v. Cook, 2013-Ohio-5081.]
Appeal from Allen County Common Pleas Court Trial Court No. CR20110032 Judgment Affirmed in Part, Reversed in Part and Cause Remanded
Peter Galyardt for Appellant
Jana E. Emerick for Appellee
{¶1} Defendant-appellant Ned L. Cook (“Cook”) brings this appeal from the judgment of the Court of Common Pleas of Allen County finding him guilty of eleven counts and sentencing him to a total prison term of 60 years to life. For the reasons set forth below, the judgment is affirmed in part and reversed in part.
{¶2} On March 17, 2011, the Allen County Grand Jury indicted Cook on eleven different charges. Doc. 3. Counts one through eight and count 10 alleged that Cook had raped children under the age of ten in violation of
{¶3} The State presented the testimony of six witnesses during its case-in-chief. The first witness was the victim, B.C. B.C. testified that she was seven years of age. Tr. 213. In response to the State’s question, B.C. indicated that Cook used to live with her. Tr. 215. B.C. testified that she took a bath in the mornings before she went to school. Tr. 215. B.C. testified that after her bath, she would go into her mother’s room with Cook. Tr. 216. Once she was in the room, B.C. would lie on the bed without her clothes. Tr. 217. Cook was the only person in the room with her. Tr. 217. B.C. testified that Cook was on the bed with her.
{¶4} The second witness presented by the State was Glenn D. (“Glenn”). Glenn testified that he is related to B.C. and knew both her and Cook. Tr. 228-29. Glenn testified that one weekend in January 2011, B.C. spent the night at his home. Tr. 229. While watching a movie with a “bedroom scene”, B.C. told Glenn that Cook gets on top of her like the characters in the movie. Tr. 230-31. Glenn testified that B.C. stated that Cook “touches his bad spot to my bad spot.” Tr. 231. Shortly after that they took B.C. back to her mother. Tr. 232.
{¶5} The next witness was the mother of B.C. and C.F., Jodi F. (“Jodi”). Jodi testified that B.C. was born in 2004, and C.F. was born in 2008. Tr. 239. Neither B.C. nor C.F. were married. Tr. 240. Jodi testified that she had dated Cook “off and on for a good 6-6 ½” years. Tr. 240. They began living together, along with B.C. and C.F. in February of 2010. Tr. 241. In September of 2010, Jodi began working first shift, so worked from 6:00 a.m. until 6:00 p.m. Tr. 243. Cook watched the children while she worked. Tr. 244. Cook was responsible for getting B.C. ready for school during that time. Tr. 244.
{¶7} Once the police had the report, an investigation was conducted by children’s services. Tr. 249. A caseworker, Seth Bowersock (“Bowersock”) conducted an interview with C.F. Tr. 249. Bowersock subsequently had Jodi come back to the interview room where Bowersock had C.F. repeat what he had earlier stated to Bowersock to insure that he understood the young child correctly.
{¶8} On cross-examination, Jodi testified that she did not immediately call the police because she wanted to find more evidence. Tr. 258. At the time of the report, Jodi and Cook were no longer dating, though they did still live together. Tr. 259. Jodi indicated that the relationship ended because of Cook’s talking to other women on the internet and to his wife.1 Tr. 260. Jodi testified that Cook was involved with two or three other women. Tr. 260. She admitted that his talking to the other women upset her, but she still allowed him to live in the home. Tr. 260. Jodi testified that she had not seen any abnormal marks on B.C. when giving her a bath. Tr. 263.
{¶9} Bowersock was the fourth witness presented by the State. Bowersock testified that he was employed as an investigator for the Allen County Children Service’s Board. Tr. 273. Bowersock indicated that part of his job requires him to investigate all allegations of child abuse. Tr. 273-74. When he receives a report, he is required to speak with all caregivers in the home, see all children in the home, and to speak with the children if possible. Tr. 274-75. This requirement includes all children in the home, not just those who have allegedly been abused. Tr. 275. In January of 2011, he began working with this family after receiving a
{¶10} Bowersock took C.F. back into the interview room and began to discuss the difference between the truth and a lie. Tr. 278-79. Bowersock testified that C.F. did not do well and did not seem to understand the difference. Tr. 279. Bowersock then asked C.F. to tell him with whom C.F. lives. Tr. 280. C.F. responded “that his daddy was in jail.” Tr. 280. When Bowersock asked C.F. to tell him about that, to which C.F. told him that “daddy put his pee-pee on his sister’s pee-pee.” Tr. 280. C.F. admitted that he had not seen this. Tr. 280. C.F. then volunteered “that his daddy put his pee-pee in his mouth and it tasted sour.” Tr. 280. Bowersock then asked C.F. to tell him more and C.F. indicated that it happened one time while he was in the bathtub. Tr. 280. Using an anatomical drawing, C.F. identified the penis as the “pee-pee.” Tr. 281-82. After speaking to C.F. alone, Bowersock asked Jodi to come back to the interview room and had C.F. repeat what he had said. Tr. 283. Jodi confirmed that he had heard C.F. correctly. Tr. 283.
{¶11} On cross-examination, Bowersock indicated that the interview with C.F. was not recorded in any way. Tr. 284. Bowersock again indicated that C.F.
{¶12} The next witness for the State was Deana Lauck (“Lauck”). Lauck testified that she was employed at the time of trial as a patrol officer with the Lima Police Department. Tr. 304-5. Before March of 2011, Lauck was assigned to the Juvenile Investigative Services Bureau. Tr. 305. Lauck testified that she has received training in interviewing child victims. Tr. 306. She testified that with children, an officer must be very careful not to lead the witness. Tr. 306-7. Lauck testified that she interviewed B.C. on January 18, 2011. Tr. 307. During the interview, Lauck used an anatomical drawing to help learn how B.C. identified various body parts. Tr. 308-9. B.C. identified her vagina as “bad spot” or “kitty cat.” Tr. 310. On January 24, Lauck conducted an interview with Cook. Tr. 311. The interview was conducted concerning the allegations made by B.C. Tr. 312. A recording was made of the interview and Lauck identified the DVD as the recording. Tr. 312. The video was then played for the jury. Tr. 313, Ex. 3.
{¶13} The video indicated that Cook was read his Miranda rights and agreed to waive them. Ex. 3. Cook then signed a written waiver during the interview. Ex. 6. While speaking with Lauck, Cook claimed that every time Jodi wanted him to leave the home, Jodi would tell him that B.C. was claiming he had touched her inappropriately. Ex. 3. Cook admitted that he watched the children
{¶14} After the video of the first interview was shown, the State continued the questioning of Lauck. Lauck testified that at the conclusion of the first interview with Cook, he was arrested. Tr. 320. A second interview was conducted on February 28, 2011. Tr. 323. The second interview was done because of the allegation regarding C.F. Tr. 321. Although Lauck informed Cook of his rights and Cook waived his rights, he did not sign the written waiver. Tr.
{¶15} During the second interview, Lauck informed Cook of his Miranda rights and Cook agreed to speak with her. Ex. 4. For the majority of the interview, Cook repeatedly denied that he had ever put his penis into C.F.’s mouth. Ex. 4. As the interview progressed, Cook admitted that he had thought about committing the act. Ex. 4. Cook later admitted that he permitted C.F. to touch Cook’s penis. Ex. 4. Eventually, Cook admitted that C.F. had pulled his penis down and may have touched it to his lips. Ex. 4. This testimony eventually changed to an admission that C.F. had put his mouth around the tip of the penis. Ex. 4.
{¶16} The final witness for the State was Detective Steve Stechschulte (“Stechschulte”). Stechschulte testified that he was a detective with the Lima Police Department. Tr. 328. On March 1, 2011, Stechschulte conducted the third interview with Cook. Tr. 329. Stechschulte identified the third DVD as a copy of the interview. Tr. 330, Ex. 5. Stechshulte also testified that Cook had waived his rights during the interview and had signed a written waiver. Tr. 330, Ex. 8. Stechschulte admitted that although there were references to “some tearing and DNA”, he did not have that evidence and he had no prior knowledge of the case before the interview. Tr. 330. He explained that in situations where there may be
{¶17} Before the video was played, Stechshulte testified that he wanted to interview Cook again to address inconsistencies between B.C.’s statements and Cook’s statements. Tr. 333. The third DVD was then played for the jury. Tr. 334, Ex. 5. In the third interview, Cook was questioned again concerning the allegations made by C.F. Ex. 5. Cook did not admit to anything new. Ex. 5.
{¶18} The jury returned verdicts of guilty on all counts including the specifications of the age. Doc. 111-121. The trial court immediately entered sentence. Doc. 124. On counts one through eight and count ten, the trial court sentenced Cook to serve fifteen years to life in prison. Id. On counts nine and eleven, Cook was sentenced to five years in prison. Id. The trial court ordered that counts one, two, and three be served concurrently to each other. Id. Counts four, five, six, and seven were ordered to be served concurrently to each other. Id. Counts eight and nine were ordered to be served concurrently to each other. Id. Counts ten and eleven were also ordered to be served concurrently to each other. Id. Each block of sentences was ordered to be served consecutively for a total sentence of sixty years to life in prison. Id. Cook filed his notice of appeal from
First Assignment of Error
The trial court erred when it admitted hearsay testimonial statements during [Cook’s] trial, in violation of his sixth amendment right to confrontation.
Second Assignment of Error
[Cook] was deprived of his right to due process when his trial attorney provided ineffective assistance of counsel.
Third Assignment of Error
The trial court erred and violated [Cook’s] rights to due process and a fair trial when, in the absence of sufficient evidence and against the manifest weight of the evidence, it convicted him of multiple counts of rape and one count of gross sexual imposition against his girlfriend’s daughter, and rape and gross sexual imposition against her son.
Fourth Assignment of Error
The trial court erred by imposing court costs without notifying [Cook] that failure to pay those costs may result in the court’s ordering him to perform community service.
{¶19} In the first assignment of error, Cook alleges that the trial court erred by admitting hearsay testimony. “‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Evid.R. 801(C). “If, however, the statement is explicitly offered without reference to its truth, then under Evid.R.
{¶20} Cook makes two arguments within this assignment of error. The first is that the trial court erred by allowing a DVD of his interrogation because it contained the repeating of victim’s statements by the officers while questioning Cook, which violated his right to confront the witness. Initially, this court notes that prior to trial Cook filed a motion to prohibit the State from introducing hearsay evidence. Doc. 51. This motion did not concern the DVDs. During the trial, Cook objected to Bowersock testifying to the statements made by C.F. Tr. 264-65. The trial court overruled the objection based upon Evid. Rule 807 and permitted Bowersock’s testimony. Tr. 271. During the testimony of Lauck, Cook also objected. However, this objection came when Lauck was testifying to how she used the anatomical drawing to aid in her interview with B.C. Tr. 309. The only discussion on the record concerning the use of the DVDs was that the DVDs were edited to omit any mention of prior bad acts and that all three interviews
{¶21} A review of the first interview indicates that on multiple instances, the investigators stated what B.C. and C.F. had told them. However, the investigators indicated that they did not know if these statements were true and were asking Cook for his version of what happened. The statements were merely incidental to the interview and were not offered to prove the truth of the matter asserted. Since the statements were not offered to prove the truth of the matter asserted, but rather to provide context for Cook’s confession, they are not hearsay statements by definition.
{¶22} The second argument raised by Cook was that the trial court erred by allowing the hearsay statement of C.F. through the testimony of Bowersock. As discussed above, Bowersock was interviewing C.F. as part of his investigation into the allegations of abuse against B.C. The statement made by C.F. is reviewed pursuant to Evidence Rule 807.
(A) An out-of-court statement made by a child who is under twelve years of age at the time of trial or hearing describing any sexual act performed by, with, or on the child or describing any
act of physical violence directed against the child is not excluded as hearsay under Evid.R. 802 if all of the following apply: (1) The court finds that the totality of the circumstances surrounding the making of the statement provides particularized guarantees of trustworthiness that make the statement at least as reliable as statements admitted pursuant to Evid.R. 803 and 804. The circumstances must establish that the child was particularly likely to be telling the truth when the statement was made and that the test of cross-examination would add little to the reliability of the statement. In making its determination of the reliability of the statement, the court shall consider all of the circumstances surrounding the making of the statement, including but not limited to spontaneity, the internal consistency of the statement, the mental state of the child, the child‘s motive or lack of motive to fabricate, the child‘s use of terminology unexpected of a child of similar age, the means by which the statement was elicited, and the lapse of time between the act and the statement. In making this determination, the court shall not consider whether there is independent proof of the sexual act or act of physical violence.
(2) The child‘s testimony is not reasonably obtainable by the proponent of the statement.
(3) There is independent proof of the sexual act or act of physical violence.
(4) At least ten days before the trial or hearing, a proponent of the statement has notified all other parties in writing of the content of the statement, the time and place at which the statement was made, the identity of the witness who is to testify about the statement, and the circumstances surrounding the statement that are claimed to indicate its trustworthiness.
(B) The child‘s testimony is “not reasonably obtainable by the proponent of the statement” under division (A)(2) of this rule only if one or more of the following apply:
(1) The child refuses to testify concerning the subject matter of the statement or claims a lack of memory of the subject matter of the statement after a person trusted by the child, in the presence of the court, urges the child to both describe the acts described by the statement and to testify. (2) The court finds all of the following:
(a) The child is absent from the trial or hearing;
(b) The proponent of the statement has been unable to procure the child‘s attendance or testimony by process or other reasonable means despite a good faith effort to do so;
(c) It is probable that the proponent would be unable to procure the child‘s testimony or attendance if the trial or hearing were delayed for a reasonable time.
(3) The court finds both of the following:
(a) The child is unable to testify at the trial or hearing because of death or then existing physical or mental illness or infirmity;
(b) The illness or infirmity would not improve sufficiently to permit the child to testify if the trial or hearing were delayed for a reasonable time.
The proponent of the statement has not established that the child‘s testimony or attendance is not reasonably obtainable if the child‘s refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of the statement for the purpose of preventing the child from attending or testifying.
(C) The court shall make the findings required by this rule on the basis of a hearing conducted outside the presence of the jury and shall make findings of fact, on the record, as to the bases for its ruling.
The Court has considered and did consider the following:
1. Spontaneity – in this instance the dec – declaration made by [C.F.] came when asked who lived in his house. No one had mentioned [Cook]. [C.F.] said “My daddy’s in jail.” “Daddy put his pee-pee on my mouth and it’s sour.”
2. Internal consistency of the statements – in this instance the statement made by the child was consistent with each other and did not any – any time contradict each other.
3. The mental state of the child – the child was 3 years of age.
4. The child’s motive or lack of motive to fabricate – there does not appear to be any reason for the child to make the statements, other than it was true. Defendant was his mom’s boyfriend and was in jail at the time of the disclosure.
5. The child’s use of terminology unexpected of a child of similar age – again, the child did not use the word “penis” instead [C.F.] said “Daddy put his pee-pee in my mouth and it’s sour.” 6. The means by which the statement was elicited – the statement made by [C.F.] was spontaneous during the course of an interview when he was asked who he lives with.
7. The lapse of time between the act and the statement – the statement was over a month after the last sexual assault by the defendant, according to the defendant’s interview with law enforcement, which the court previously reviewed.
8. The court finds that the child’s testimony is not reasonably obtainable by the State. In this instance the child is 3 years of age. The defense has stipulated that the child is not competent to testify. It is further unlikely the child would become competent to testify in a reasonable amount of time. The court further finds that the child based upon his age and mental infirmity, would be unable to testify at trial because of the same and that the infirmity of the child would not improve sufficiently to permit the child to testify if the trial or hearing was delayed for a reasonable period of time.
9. The child (sic) further finds that there is independent proof of the sexual act by the interview in which he was allowed – which he – Defendant admitted during the interview that he allowed C.F. to hold his penis on three (3) separate occasions and placed his penis in [C.F.’s] mouth.
10. The Court also finds the State has filed its motion more than ten (10) days prior to trial.
The court therefore finds that pursuant to Evidence Rule 807 and all constitutional guarantees that [Bowersock] is allowed to testify regarding the child-victim’s statement.
{¶24} Cook also argues that the use of the hearsay statements is prejudicial because if the testimony had been excluded, the evidence would have been insufficient to corroborate Cook’s confession.
The corpus delicti of an offense consists of the act and the criminal agency of the act. [State v. Edwards, 49 Ohio St.2d 31, 36, 358 N.E.2d 1051 (1976)]. Before a confession of a crime may be admitted at trial, the state must introduce evidence independent of the confession to establish the corpus delicti of the offense. See State v. Maranda (1916), 94 Ohio St. 364, 114 N.E. 1038, paragraphs one and two of the syllabus; see, also, State v. Van Hook (1988), 39 Ohio St.3d 256, 261, 530 N.E.2d 883.
The corpus delicti rule is designed to protect “persons who confess to crimes that they not only did not commit themselves, but which were never committed by anyone.” State v. Nobles (1995), 106 Ohio App.3d 246, 261–62, 665 N.E.2d 1137. Accordingly, “this rule does not require evidence, other than the confession, showing that the accused committed the crime but, rather, requires some evidence that a crime was, in fact, committed.” State v. Hopfer (1996), 112 Ohio App.3d 521, 561, 679 N.E.2d 321. “The evidence presented need not be so strong that it is capable of persuading a factfinder on some element of the crime beyond a reasonable doubt.” Nobles, 106 Ohio App.3d at 262, 665 N.E.2d 1137. Nor must the evidence be “even enough to make it a prima facie case.” Maranda, 94 Ohio St. 364, 114 N.E. 1038, at paragraph two of the syllabus. Rather, “[i]t is sufficient if there is some evidence outside of the confession that tends to prove some material element of the crime charged.” Id. The corpus delicti rule does not require evidence related to all elements of the crime. Van Hook, 39 Ohio St.3d at 262, 530 N.E.2d 883. Furthermore, the evidence need not be direct but, rather, may be circumstantial. State v. Nicely (1988), 39 Ohio St.3d 147, 152, 529 N.E.2d 1236. Although the rule remains applicable, the Supreme Court has indicated that it need not be applied “with a dogmatic vengeance.” Edwards, 49 Ohio St.2d at 36, 3 O.O.3d 18, 358 N.E.2d 1051.
State v. Gabriel, 170 Ohio App.3d 393, 2007-Ohio-794, ¶57-58, 867 N.E.2d 474 (2d Dist.) (reversed on other grounds). The corpus delecti rule requires the State to present some independent evidence of the criminal act and criminal agency, but that burden is minimal. State v. Van Hook, 39 Ohio St.3d 256, 530 N.E.2d 883 (1988) and State v. Brown, 3d Dist. Union No. 14-08-11, 2008-Ohio-4649, ¶34. See also, State v. Edinger, 10th Dist. Franklin No. 05AP-31, 2006-Ohio-1527; State v. Davis, 11th Dist. Ashtabula No. 89-A-1458, 1990 WL 59208 (May 4, 1990) and State v. Newberry, 2d Dist. Montgomery No. CA10353, 1987 WL 29572 (Dec. 18, 1987).
{¶25} In Edinger, supra, the 10th District Court of Appeals addressed an issue similar to ours. The defendant was convicted of one count of rape and one count of gross sexual imposition with the victim being a two to three year old girl. Id. At the time of the offenses, the child resided with the defendant and was not married to him. Id. The child made comments to her father which caused him to call the police and take her to the hospital. Id. The appellate court found that this testimony was sufficient to meet the State’s burden of establishing the corpus delecti. Id. at ¶32.
{¶26} In this case, there was no physical evidence of any sort to corroborate the confession of Cook. However, there was testimony by B.C. that Cook had touched her while she lay on the bed without clothing. Tr. 219-23. There was the testimony of Glenn that B.C. told him that Cook touched his bad spot to her bad spot. Tr. 231. Glenn also testified that B.C.’s statements caused him to tell her aunt who called Jodi. Tr. 231-32. Jodi also testified that B.C. repeatedly told her that Cook had “messed” with her. Tr. 245-47. Jodi testified that Cook resided with B.C. and that he would have been home alone when the acts allegedly occurred. Tr. 241, 244. Jodi further testified that B.C. was seven years of age and was not married to Cook. Tr. 239-40. When questioning B.C., Jodi was able to
{¶27} As to C.F. there was again, no physical evidence to corroborate the confession of Cook. There was the testimony of Bowersock that C.F. told him that Cook had put Cook’s penis into C.F.’s mouth. Tr. 280. Jodi testified that C.F. repeated the statement to her when she went back after the initial interview between Bowersock and C.F. Tr. 250. Jodi also testified that Cook resided with them, C.F. was three years of age, and that C.F. was not married. Tr. 239-41. This testimony was sufficient to satisfy the requirements of corpus delecti as to the offenses against C.F. Having found that there was no error in the admission of the evidence and that there was sufficient corroborating evidence to allow the admission of the confessions, the first assignment of error is overruled.
{¶28} In the second assignment of error, Cook claims that he was denied effective assistance of counsel.
In evaluating whether a petitioner has been denied effective assistance of counsel, this court has held that the test is “whether the accused, under all the circumstances, * * * had a fair trial and substantial justice was done.” State v. Hester (1976), 45 Ohio St.2d 71, 74 O.O.2d 156, 341 N.E.2d 304, paragraph four of the syllabus. When making that determination, a two-step process is usually employed. “First, there must be a determination as to whether there has been a substantial violation of any of defense counsel‘s essential duties to his client. Next, and analytically separate from the question of whether the defendant‘s Sixth Amendment rights were violated, there must be a determination as to whether the defense was prejudiced by counsel‘s ineffectiveness.” State v. Lytle (1976), 48 Ohio St.2d 391, 396–397, 2 O.O.3d 495, 498, 358 N.E.2d 623, 627, vacated on other grounds (1978), 438 U.S. 910, 98 S.Ct. 3135, 57 L.Ed.2d 1154.
On the issue of counsel‘s ineffectiveness, the petitioner has the burden of proof, since in Ohio a properly licensed attorney is presumably competent. See Vaughn v. Maxwell (1965), 2 Ohio St.2d 299, 31 O.O.2d 567, 209 N.E.2d 164; **915 State v. Jackson, 64 Ohio St.2d at 110–111, 18 O.O.3d at 351, 413 N.E.2d at 822.
State v. Calhoun, 86 Ohio St.3d 279, 289, 1999-Ohio-102, 714 N.E.2d 905.
{¶29} Here, Cook claims that his trial counsel was ineffective for failing to object to the hearsay statements in the DVDs. As discussed above, the use of B.C.’s and C.F.’s statements during the police interviews were not used to prove the truth of the matter asserted. A review of the DVDs shows that the officers told Cook that this is what the children were saying, but that it may or may not be true. The officers indicated that they wanted to hear Cook’s version of what happened. The statements were used to elicit a response from Cook, not to prove that the abuse had happened. The verification of the abuse came from Cook’s confessions, not from the police repeating the statements made by the children. Since the
{¶30} Cook claims in the third assignment of error that the verdict is against the sufficiency of the evidence and is against the manifest weight of the evidence. A claim of sufficiency of the evidence raises a due process question concerning whether the evidence is legally sufficient to support the verdict as a matter of law. State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, ¶219, 954 N.E.2d 596 (citing State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541). “On review of the sufficiency of the evidence to support a criminal conviction, ‘the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶34, 840 N.E.2d 1032 (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).
{¶31} Cook was charged with nine counts of rape in violation of
“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 or any instrument, apparatus, or other object into the vaginal or anal opening of another. Penetration, however slight, is sufficient to complete vaginal or anal intercourse.
{¶32} B.C. testified that at the time of trial, she was seven years of age. Tr. 213. Jodi testified that B.C. was not married. Tr. 240. Cook’s confessed that on eight separate occasions he had engaged in sexual conduct with B.C. and that some part of his body, whether it be a finger or a tongue, slightly penetrated the vaginal opening. Ex. 3.
{¶33} Jodi testified that at the time of trial, C.F. was three years of age. Tr. 239. She also testified that C.F. was not married. Tr. 240. Bowersock testified that C.F. had told him that Cook had placed his penis in C.F.’s mouth. Cook admitted during the police interview that C.F. may have put the tip of Cook’s penis into C.F.’s mouth and that he may have left it there for a few seconds. Ex. 4. Viewing this evidence in a light most favorable to the prosecution, there was sufficient evidence to support the eight rape convictions concerning B.C. and the one rape conviction concerning C.F. The evidence was also sufficient to support
{¶34} In addition to the counts for rape, Cook was also indicted on two counts of gross sexual imposition in violation of
“Sexual contact” means any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing or gratifying either person.
{¶35} Cook also claims that the verdict is against the manifest weight of the evidence. “A reviewing court may find a verdict to be against the manifest weight
A reviewing court considering a manifest-weight claim “review [s] the entire record, weighs the evidence and all reasonable inferences, [and] considers the credibility of witnesses.” State v. Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 485 N.E.2d 717. The question for the reviewing court is “whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against conviction.” Id. See Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541.
Id. at ¶77. Although the appellate court acts as a thirteenth juror, it still must give due deference to the findings made by the jury.
The fact-finder, being the jury, occupies a superior position in determining credibility. The fact-finder can hear and see as well as observe the body language, evaluate voice inflections, observe hand gestures, perceive the interplay between the witness and the examiner, and watch the witness’ reaction to exhibits and the like. Determining credibility from a sterile transcript is a Herculean endeavor. A reviewing court must, therefore, accord due deference to the credibility determinations made by the fact finder.
State v. Risch, 3d Dist. Wyandot No. 16-10-14, 2011-Ohio-3633, ¶5 (quoting State v. Thompson (1998), 127 Ohio App.3d 511, 529, 713 N.E.2d 456).
{¶36} A review of the evidence in this case shows that Cook confessed to all of the charged offenses. This confession was played for the jury. The State presented additional witnesses that confirmed the statements made in the
{¶37} The fourth and final assignment of error alleges that the trial court erred by failing to notify Cook that the failure to pay court costs could result in him being required to perform community service. Cook requests that as a result of that failure by the trial court, this court should eliminate the requirement that Cook be required to perform community service if he fails to pay court costs. Appellant’s Brief, 12. The State concedes that the trial court failed to properly notify Cook concerning the possibility of community control. Appellee’s Brief, 20. However, the State argues that the proper remedy is to remand the matter for the limited purpose of correcting the error in the sentencing on court costs. Id. at 23.
{¶38} The imposition of court costs is governed by
(A)(1) In all criminal cases, including violation of ordinances, the judge or magistrate shall include in the sentence the costs of prosecution, including any costs under [R.C. 2947.231], and render a judgment against the defendant for such costs. At the time the judge or magistrate imposes sentence, the judge or magistrate shall notify the defendant of both of the following:
(a) If the defendant fails to pay that judgment or fails to timely make payments towards that judgment under a payment schedule approved by the court, the court may order the defendant to perform community service in an amount of not more than forty hours per month until the judgment is paid or until the court is satisfied that the defendant is in compliance with the approved payment schedule.
(b) If the court orders the defendant to perform the community service, the defendant will receive credit upon the judgment at the specified hourly credit rate per hour of community service performed and each hour of community service performed will reduce the judgment by that amount.
Judgment Affirmed in Part, Reversed in Part and Cause Remanded
SHAW, J., concurs.
ROGERS, J., concurs in Judgment Only.
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