State v. CooperState v. Cooper
ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
WILLIAM N. MERRELL, Atty. Reg. No. 0015957, P. O. Box 2901, Springfield, Ohio 45501
Attorney for Defendant-Appellant
O P I N I O N
FROELICH, J.
{¶ 1} Defendant-appellant Donald Cooper appeals his conviction and sentence for rape and gross sexual imposition. For the following reasons, the judgment of the trial court will be Affirmed.
I
{¶ 3} As D.D. walked north on Main Street, approaching Helena Street, she heard a man at the bus stop across the street call out, “Hey girl. Come here.” D.D. looked up and saw the man (later identified as Cooper) walking toward her. D.D. kept walking, but Cooper started walking faster, catching up to her. Cooper grabbed D.D.‘s arm and asked her where she was going, insisting that he wanted to talk to her. The two talked for a couple of minutes, then D.D. told Cooper that she had to get home to her daughter.
{¶ 4} Being only two blocks away from her home, D.D. tried to walk away, but Cooper followed her, continuing to talk. Becoming more concerned, D.D. sent a text message to her mother, asking for help. Cooper suddenly kissed D.D., who pushed him away, and repeated that she needed to get home to her child. Cooper grabbed her arm and told her, “You‘re not going anywhere.” As Cooper dragged D.D. into an alley, she hit the send button on her phone to text her mother again.
{¶ 5} In the alley, Cooper pushed D.D. onto her knees and shoved his penis into her mouth. Cooper then withdrew his penis and forced D.D. to masturbate him. D.D. managed to call her mother, who could hear her begging someone to leave her alone. The call was disconnected, and D.D.‘s mother left the house to look for her daughter. D.D. claimed that Cooper then turned her around and pulled
{¶ 6} The officer arrested Cooper, and D.D. was taken to the hospital. She suffered from cut, swollen, and bruised lips, bruising to both arms, and an abrasion to her cervix. Cooper was indicted on two counts of rape and one count of gross sexual imposition.
{¶ 7} Cooper testified that he had sex with D.D., but he insisted that it was consensual. He said D.D. was a prostitute and that he paid her $20 and shared some crack cocaine with her in exchange for oral sex that morning. Cooper also offered the testimony of Daphne Tillman, a drug addict and prostitute with an extensive criminal history. Tillman claimed that she knew D.D. to be a prostitute. She testified that she saw D.D. and Cooper smoking crack cocaine at the bus stop before walking together down the alley.
{¶ 8} On rebuttal, the State offered the testimony of several police officers who stated that D.D. did not appear to be under the influence of either drugs or alcohol when they spoke to her. A detective in the vice squad was not familiar with either D.D.‘s name or her face, and at the time of this offense there were no police records for D.D. for any crime, including prostitution.
II
Cooper‘s First Assignment of Error:
{¶ 10} “THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT FAILED TO INSTRUCT ON THE LESSER INCLUDED OFFENSE OF SEXUAL BATTERY, A VIOLATION OF R.C. SECTION 2907.03 AND SUCH FAILURE AMOUNTED TO PLAIN ERROR.”
{¶ 11} In his first assignment of error, Cooper maintains that the trial court erred in failing to instruct on sexual battery, a lesser included offense of rape. As Cooper acknowledges, he has waived all but plain error by not objecting or requesting a different instruction in the trial court. See, e.g., State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶74. “‘Plain error exists only where it is clear that the verdict would have been otherwise but for the error.‘” Id., quoting State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, ¶52. We find no plain error in the trial court‘s failure to instruct on sexual battery in this case.
{¶ 12} A trial court‘s determination of whether to instruct a jury on a lesser included offense is a two-step process. State v. Gregory (Aug. 19, 1994), Montgomery App. No. 14187. “The court must first determine whether the offense may be a lesser included offense.” Id. If so, “the court must then determine whether the evidence warrants the giving of the lesser included
{¶ 13} “‘An offense may be a lesser included offense of another only if: (1) the offense is a crime of lesser degree than the other; (2) the offense of greater degree cannot, as statutorily defined, ever be committed without the offense of the lesser degree, as statutorily defined, also being committed, and (3) some element of the greater offense is not required to prove the commission of the lesser offense.‘” Id., quoting State v. Kidder (1987), 32 Ohio St.3d 279.
{¶ 14} Cooper was convicted of rape in violation of
{¶ 15} “The Supreme Court of Ohio has held that sexual battery committed by use of coercion as defined in
{¶ 16} Cooper‘s defense was that D.D. consented to perform oral sex. Had the jury believed this testimony, his defense to the charge of rape was complete. Contrary to Cooper‘s assertion, “[t]he jury could not have found that defendant acted knowingly but not purposely; it had to choose between a complete defense, and therefore acquittal, or the commission of the crime of rape.” Id., at 389. “[W]here a defendant presents a complete defense to the substantive elements of the crime, * * * an instruction on a lesser included offense is improper.” State v. Keenan (1998), 81 Ohio St.3d 133, 139. See, also, State v. Taylor, Montgomery App. No. 21122, 2006-Ohio-2655, ¶35 (“[A] trier of fact will not be allowed to consider a lesser-included offense when the evidence adduced on behalf of the defense is such that, if accepted by the trier of fact, the evidence would constitute a
{¶ 17} Because Cooper claimed that D.D. consented to the sexual conduct, no instruction on the lesser included offense of sexual battery was warranted. Cooper‘s first assignment of error is overruled.
III
Cooper‘s Second Assignment of Error:
{¶ 18} “THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT FAILED TO MERGE THE SENTENCES IMPOSED ON THE TWO REMAINING COUNTS PURSUANT TO R.C. 2941.25 AND SUCH FAILURE AMOUNTED TO PLAIN ERROR.”
{¶ 19} In his second assignment of error, Cooper contends that his gross sexual imposition and rape charges were allied offenses of similar import, which were required to be merged for sentencing pursuant to
{¶ 20} The Ohio Supreme Court has established a two-part test for determining whether multiple offenses are allied offenses of similar import pursuant to
{¶ 21} Cooper was convicted of rape in violation of
{¶ 22} The Ohio Supreme Court has compared the elements of these two offenses in the abstract and concluded that rape and gross sexual imposition are allied offenses of similar import. State v. Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, ¶30, citations omitted. However, the analysis does not end here. While a defendant may not be convicted of rape and gross sexual imposition arising out of the same conduct, there are circumstances under which he may be convicted of both. State v. Hawks, Cuyahoga App. No. 93582, 2010-Ohio-4345, ¶21, citing State v. Foust, 105 Ohio St.3d 137, 2004-Ohio-7006; additional citations omitted. State v. Hay, Union App. No. 14-2000-24, 2000-Ohio-1938, citing State v. Johnson (1988), 36 Ohio St.3d 224, 226; State v. Jones (1996), 114 Ohio App.3d 306, 325. We must next consider whether the crimes were committed with a separate animus.
{¶ 23} In State v. Dudley, Montgomery App. No. 22931, 2010-Ohio-3240, we
{¶ 24} When a defendant gropes his victim‘s breast and buttocks, as well as rapes her, we have held that the acts of groping are not merely incidental to the rape, and a trial court does not err in separately sentencing the defendant for each of the counts of gross sexual imposition based upon those actions, as well as for the rape. State v. Young, Montgomery App. No. 23438, 2010-Ohio-5157, ¶¶109-10, citing State v. Knight, Cuyahoga App. No. 89534, 2008-Ohio-579. See, also, Foust, supra, at ¶45 (gross sexual imposition charges as a result of the defendant‘s touching his victim‘s breasts and vagina were distinct and separate from the act of rape).
{¶ 25} In Hay, supra, a case more factually similar to this case, the Third District Court of Appeals considered whether masturbation was separate and distinct from rape. The Court explained that “[t]he charge of gross sexual imposition was premised upon the alleged masturbation of [the victim‘s] penis. This is separate and distinct from the action, specifically the act of fellatio, which constituted the sexual conduct which lead to the appellant‘s criminal charge for rape. Therefore, the appellant committed two separate offenses, and he may be
{¶ 26} We conclude that Cooper‘s act of forcing D.D. to masturbate him was not merely incidental to the act of rape, but was instead a separate and distinct act, committed with a separate animus. Therefore, the trial court did not err in sentencing D.D. separately for the two offenses.
{¶ 27} Cooper‘s second assignment of error is overruled.
IV
Cooper‘s Third Assignment of Error:
{¶ 28} “APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.”
{¶ 29} In his third assignment of error, Cooper maintains that he was denied the effective assistance of trial counsel because counsel failed to ask for an instruction on sexual battery, as a lesser included offense of rape, and in failing to request that his sentences be merged as allied offenses of similar import. We disagree.
{¶ 30} In order to prevail on a claim of ineffective assistance of counsel, the defendant must show both deficient performance and resulting prejudice. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052. See, also, State v. Bradley (1989), 42 Ohio St.3d 136. Trial counsel is entitled to a strong presumption that his conduct falls within the wide range of effective assistance, and to show deficiency the defendant must demonstrate that counsel‘s representation fell below an objective standard of reasonableness. Id.
{¶ 31} As discussed in response to Cooper‘s first assignment of error, no
{¶ 32} Cooper‘s third assignment of error is overruled.
V
{¶ 33} All three of Cooper‘s assignments of errors having been overruled, the judgment of the trial court is Affirmed.
FAIN, J. and GRADY, J., concur.
Copies mailed to:
Andrew T. French
William N. Merrell
Hon. Dennis J. Langer