Case Information
*1
[Cite as
State v. Craig
,
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO
STATE OF OHIO, : O P I N I O N
Plaintiff-Appellee, :
CASE NO. 2016-L-113 - vs - :
JAMES D. CRAIG, :
Defendant-Appellant. : Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2015 CR 000634.
Judgment: Affirmed.
Charles E. Coulson , Lake County Prosecutor, and Karen A. Sheppert , Paul E. Kaplan , and Taylir K. Linden , Assistant Prosecutors, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).
Mandy J. Gwirtz , Mandy Gwirtz, LLC, 20050 Lakeshore Boulevard, Euclid, OH 44123 (For Defendant-Appellant).
THOMAS R. WRIGHT, J. Appellant, James D. Craig, appeals his conviction on eight felony sexual
offenses, including rape and gross sexual imposition. Appellant challenges the sufficiency and manifest weight of the evidence, the trial court’s failure to sever three charges, and two evidentiary rulings. We affirm. Appellant and Jasmine Cleckner married in May 2003. Within a year, they
had a daughter, J.C. Shortly afterward, they moved to a home in Leroy Township, Lake County, Ohio. Over the next five years they had two sons. Through the years, Jasmine obtained a degree and had a full-time job
working with computers. At some point, appellant returned to school to obtain his degree. Since he had more flexibility, he often cared for the children. The Leroy Township home has three stories, three bedrooms and two
bathrooms. Until May 2014, the upstairs bedroom was solely occupied by appellant’s father. J.C. shared a bedroom with her two brothers and appellant and Jasmine shared the third bedroom. Jasmine has two sisters, Lea Mitchell and Adrianna DiDomenico, both
West Virginia residents. In July 2015, Lea visited Jasmine and their father, Carl Cleckner in Leroy. At the conclusion of the visit, J.C. traveled with Lea to West Virginia to spend a few weeks with her maternal grandmother, Jeanette DiDomenico. During the car ride, Lea observed J.C., then eleven, behaving differently than the last time she saw her. Instead of being talkative, J.C. was withdrawn and wore headphones throughout the trip. At the time of this visit, Adrianna DiDomenico, 18 years old, resided with
her mother, Jeanette, and father, William DiDomenico. Sensing issues, Jeanette asked Adrianna to talk with J.C. When Adrianna initially saw J.C., Adrianna sensed that J.C. had recently been crying and was upset. She persuaded J.C. to talk with her on the front porch. J.C. became even more upset and cried uncontrollably. J.C. ultimately told Adrianna that appellant had sexually molested her multiple times during the last eighteen months and described the nature of the acts. *3 After J.C. was calmer, Adrianna had her write the details. Jeanette then
contacted the Child Advocacy Center in Charleston, West Virginia, and arranged for the center’s director, Maureen Runyon, to interview J.C. During the recorded interview, J.C. again gave a detailed description of appellant’s sexual abuse. According to J.C., the behavior began one night when she awoke to
appellant performing cunnilingus on her. Over the following weeks, appellant repeated this act numerous times in multiple locations in their Leroy home. J.C. further asserted that he tried to entice her into willing participation by promising her “benefits.” For example, he would allow her additional time on the internet without parental controls. In time, appellant engaged in additional sexual acts: (1) rubbing his finger or a vibrator on her vaginal area; (2) inserting his finger into her vagina; (3) inserting the vibrator into her vagina; (4) forcing her to masturbate him; and (5) on one occasion, appellant placed his genitals on her lips, with J.C. refusing to open her mouth. J.C. further said that appellant had her “dress up” in her mother’s lingerie and panties, pose provocatively, and that he photographed her using a red digital camera. A few days after the interview, J.C. underwent a physical examination by a
medical doctor. She had no physical signs of sexual abuse. The information gathered was conveyed to the Lake County Sheriff’s
Department and used to obtain a search warrant for the Leroy residence. In executing the warrant following appellant’s arrest, the authorities failed to locate digital photographs of J.C. However, they seized a red digital camera and the described vibrator. The authorities also found two computer disks containing 749 photographs/videos of child pornography, with many of pictures featuring girls *4 appearing to be the same age as J.C., locked in a gun cabinet that Jasmine gifted to appellant. Within three months of appellant’s arrest, he was indicted on eleven
counts including: three counts of rape, a first-degree felony under R.C. 2907.02(A)(1)(b); three counts of gross sexual imposition, a third-degree felony under R.C. 2907.05(A)(4); two counts of importuning, a third-degree felony under R.C. 2907.07(A) & (C)(1); one count of pandering obscenity involving a minor, a second- degree felony under R.C. 2907.321(A)(1); one count of pandering obscenity involving a minor, a fourth-degree felony under R.C. 2907.321(A)(5); and one count of pandering sexually oriented matter involving a minor, a second-degree felony under R.C. 2907.322(A)(1). In writing, J.C. claimed that appellant required her to view internet
pornography on various devices and to draw pornographic images. During its investigation, the sheriff’s department retained J.C.’s Kindle to review her Internet history. To access the Kindle, Jasmine asked J.C. to provide her the password. J.C. did so, but recanted her claim that appellant forced her to view pornographic material and acknowledged that she viewed the material herself out of curiosity. J.C. told her mother that she lied out of embarrassment. She also admitted that she lied about being required to draw pornographic images. While the charges were pending, Jasmine continued to search and
cleanout the Leroy home. In the process, she found a small baggy containing 36 pubic hairs in appellant’s baseball card collection stored in the master bedroom closet and a garbage bag in the garage attic containing multiple pairs of toddler size 3T underwear *5 belonging to J.C., along with a t-shirt belonging to appellant. Jasmine testified that J.C. wore 3T until the fourth grade, and that she normally discarded J.C.’s underwear when she outgrew them.
{¶14} A six-day jury trial went forward in August 2016. In addition to J.C.’s testimony, the state called Adrianna to testify regarding the statements J.C. made to her during J.C.’s initial disclosure. The state also presented considerable evidence as to changes in J.C.’s personality both before and after her disclosure. Appellant rested without presentation of evidence. Appellant was found not guilty of the first of the two importuning counts and two of the three pandering counts, but guilty of the remaining eight counts. The trial court ordered an aggregate prison term of 91.5 years to life:
three terms of twenty-five years to life on the rape counts; three five-year terms on the gross sexual imposition counts; and eighteen months on the pandering count, all time to be served consecutively. The sole importuning count was merged for purposes of sentencing. Appellant asserts five assignments of error: “[1.] The trial court erred when it denied defendant-appellant’s motion for
severance of offenses for trial, in violation of his rights to due process of law under the Fourteenth Amendment of the U.S. Constitution and Sections 10 and 16, Article 1 of the Ohio Constitution. “[2.] The trial court violated the defendant-appellant’s constitutional right to
fair trial and due process as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Sections 5 and 10, Article 1 of the Ohio Constitution *6 when it admitted inadmissible hearsay testimony.
{¶19} “[3.] The defendant-appellant was deprived of his constitutional rights to fair trial and due process when the trial court admitted irrelevant and misleading evidence.
{¶20} “[4.] The trial court erred to the prejudice of the defendant-appellant in denying his motion for acquittal made pursuant to Crim.R. 29(A). “[5.] The trial court erred to the prejudice of the defendant-appellant when
it returned a verdict of guilty against the manifest weight of the evidence.” The first assignment asserts that the trial court’s decision to overrule his motion to sever three counts for separate trial denied him a fair trial on the remaining eight counts. Appellant moved to sever the following charges: count 7, importuning;
count 9, pandering obscenity involving a minor; and count 11, pandering sexually oriented material involving a minor. These counts are primarily based upon appellant’s possession of the two disks of child pornography found in appellant’s gun cabinet. The disks do not contain photographs of J.C., but there are numerous pictures of girls appearing to be close in age. “Pursuant to Crim.R. 8(A), ‘[t]wo or more offenses may be charged in the
same indictment, information or complaint in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character * * *.’ Generally, joinder of offenses is liberally permitted in order to conserve judicial resources, prevent incongruous results in successive trials, or to diminish inconvenience to witness. Thus, the law generally favors joinder of multiple offenses in *7 a single trial. “However, pursuant to Crim.R. 14, it may be necessary to require
separate trials to prevent prejudice. * * * Crim.R. 14 reads, in pertinent part:
“‘If it appears that a defendant or the state is prejudiced by a joinder of
offenses or of defendants in an indictment, information, or complaint, or by such joinder
for trial together of indictments, informations or complaints, the court shall order an
election or separate trial of counts, grant a severance of defendants, or provide such
other relief as justice requires.” (Citations omitted.) State v. Quinones , 11th Dist. Lake
No. 2003-L-015,
show that his rights have been prejudiced.’ Crim.R. 14; Quinones at ¶38; State v.
Roberts (1980),
the rape and gross sexual imposition counts, the child pornography disks are admissible to prove both offenses because they establish that appellant acted in accordance with an underlying plan. The state asserts that the plan consisted of using child pornography to “groom” J.C. into participating in sexual activity. However, although J.C. testified that appellant showed pornography to her on multiple occasions, she did not specifically testify that appellant showed her the child pornography on the two disks. Given that the state failed to establish a nexus, the disks are not admissible to show a plan. Nevertheless, evidence pertaining to each charge is simple and direct. The remaining eight charges against appellant consisted of three rape counts, three gross sexual imposition counts, one importuning count, and one pandering court. As to the first six counts, the state had to prove that appellant engaged in either sexual conduct, rape or sexual contact, gross sexual imposition with J.C., and that she was then under the age of thirteen. R.C. 2907.02(A)(1)(b) & 2907.05(A)(4). On the remaining importuning count, the state had to prove that appellate solicited J.C., a minor, to engage in sexual activity with him. R.C. 2907.07(A). On the remaining “pandering” count, the state had to prove that he created, reproduced, or published obscene material that has a minor as a participant. R.C. 2907.321(A)(5). Given the nature of the basic elements of the eleven counts, the
provocable evidence necessary to prove those counts is simple and direct. The rape and gross sexual imposition counts are based upon separate sexual acts, with or without the disks, while the three counts appellant sought to sever are primarily based on the disks.
{¶31}
The decision to grant or deny a motion to sever lies within the trial court’s
sound discretion. State v. Hupp , 11th Dist. Lake No. 2008-L-052,
{¶32} The second assignment asserts that the trial court erred in allowing Adrianna to testify regarding J.C.’s initial statements to her. Appellant asserts they are inadmissible hearsay, not qualifying as excited utterances. Adrianna testified that J.C. was very upset at the outset of their talk and
was crying so hard that she could not speak. The trial court then allowed Adrianna to testify as to the statements. Hearsay is defined as “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). Hearsay cannot be admitted into evidence unless one of the
recognized exceptions to the general rule applies. State v. Butcher , 170 Ohio App.3d
52,
startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Evid.R. 803(2) “For an alleged excited utterance to be admissible, the following must
exist: (1) an event that was startling enough to produce a nervous excitement in the
declarant; (2) the statement must have been made while under the stress of excitement
*10
caused by the event; (3) the statement must relate to the startling event; and (4) the
declarant must have personally observed the startling event. State v. Taylor , (1993), 66
Ohio St.3d 295, 300-301,
utterance, the court should consider: (a) the lapse of time between the event and the
declaration; (b) the declarant’s mental and physical condition; (c) the nature of the
statement; and (d) the influence of intervening circumstances. State v. Humphries ,
(1992),
as stringently in sexual abuse cases involving young children as it is in cases involving
an adult. State v. Kincaid , 9th Dist. Lorain Nos. 94CA005942 & 94CA005945, 1995 WL
608407, *5 (Oct. 18, 1995). “‘[C]hildren are more likely to remain in a state of nervous
excitement longer than would an adult in cases involving hearsay statements by a child
declarant.’” State v. Wilson , 4th Dist. Scioto No. 13CA3542,
the alleged sexual abuse when she made the statements to Adrianna because she had
not seen him for a number of days. However, this argument is based upon the premise
*11
that only the molestation itself could be the startling event provoking the statements. In
applying the excited utterance exception liberally in child sexual abuse cases, an event
subsequent to the molestation can be the startling event leading to the reflexive
statement. State v. Wampler , 6th Dist. Lucas No. L-15-1025,
the influence of the startling event when she made the at issue statements. As appellant has not shown that the trial court erred in allowing Adrianna to testify about *12 J.C.’s statements, his second assignment lacks merit. Under his next assignment, appellant challenges the admission of: (1) the
garbage bag containing J.C.’s underwear and appellant’s shirt; and (2) the baggy containing the 36 pubic hairs found in the master bedroom closet. He contends alternatively that both items should have been excluded as irrelevant and that, if relevant, the potential for prejudice outweighs their probative value. “The admission or exclusion of evidence lies within the broad discretion of
a trial court, and a reviewing court should not disturb evidentiary decisions save an
abuse of discretion that has created material prejudice. State v. Noling , 98 Ohio St.3d
44,
interest in the growth of her pubic hair during the eighteen months of abuse. Evidence that he was maintaining both a collection of her underwear and a collection of pubic hair corroborates her testimony. To this extent, that no specific count in the indictment was predicated upon either item of evidence does not diminish their relevancy. Evid.R. 401 and 402. Appellant further argues admission was improper because the state failed
to show that he was aware of either collection. However, both were found in an area associated with him. The small baggy of pubic hairs was found hidden in his baseball- card collection, and the garbage bag of underwear also containing one of his old t-shirts was located in a collection of wood chips he maintained in the garage attic. Based upon this, there was a connection supporting admissibility. Appellant also emphasizes that the state could not present any evidence
demonstrating that any of the pubic hair was J.C.’s. But that appellant was maintaining any collection of public hairs constitutes confirmation of her assertion that he had an obsessive interest in such matters. Appellant has likewise failed to establish the probative value was not
substantially outweighed by any unfair prejudice. Therefore, his third assignment is *14 without merit.
{¶50} Appellant’s final two assignments are interrelated. Under his fourth assignment, he submits that his motion for judgment of acquittal should have been granted at the end of the state’s case due to insufficient evidence. Under his fifth assignment, he claims that the verdicts are against the manifest weight of the evidence.
{¶51}
Appellant’s arguments are based solely on global challenges to J.C.’s
credibility; he does not contest the lack of proof on any particular element or crime.
When an appellant raises both sufficiency and manifest weight arguments
in an appeal, the appellate court is only required to review the latter argument because
“‘a determination of whether a conviction is or is not supported by the weight of the
evidence “necessarily rests on the existence of sufficient evidence.”’” State v. DiBiase ,
11th Dist. Lake No. 2011-L-124,
evidence, a reviewing court must consider the weight of the evidence, including the
credibility of the witnesses and all reasonable inferences, to determine whether the trier
of fact ‘“lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered.”’ State v. Thompkins , 78 Ohio
St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v. Martin , 20 Ohio App.3d 172,
175, 485 N.E.2d 717 (1st Dist.1983).” State v. Thompson , 11th Dist. Trumbull No.
2015-T-0087,
and observe their demeanor, gestures, and voice inflections, and use those
observations in weighing the credibility of proffered testimony.’ State v. Long , 127 Ohio
App.3d 328, 335, 713 N.E.2d 1 (4th Dist.1998)(citations omitted). Therefore, in
weighing the evidence submitted at a criminal trial, an appellate court must give
substantial deference to the factfinder’s determination of credibility. State v. Tribble , 2d
Dist. Montgomery No. 24231,
are primarily for the trier of the facts.’ State v. DaHass , 10 Ohio St.2d 230 (1967),
paragraph one of the syllabus. When examining witness credibility, ‘the choice between
credible witnesses and their conflicting testimony rests solely with the finder of fact and
an appellate court may not substitute its own judgment for that of the finder of fact.’
State v. Awan ,
because some aspects are not believable: first, because she testified most of the sexual *16 conduct took place while other people were home; and second because she testified one sexual act occurred while they were sitting in a car in the parking lot of a dentist’s office. Appellant was often the sole adult in care of the children. J.C. testified
that while appellant would sometimes engage in incidents in the bedroom she shared with her two brothers, the majority of the incidents occurred in other rooms in the home, such as the living room or the upstairs hallway, while the boys were elsewhere. As to the “dentist’s office” incident, J.C. stated that the boys were asleep in the back seat and it was already dark outside when he put his hand under her skirt. Moreover, that the boys may have been in the vicinity does not render her incredible. Appellant has failed to establish that the jury lost its way. Appellant’s
convictions are not against the manifest weight of the evidence and his fourth and fifth assignments are without merit. The judgment of the Lake County Court of Common Pleas is affirmed.
CYNTHIA WESTCOTT RICE, P.J., concurs,
COLLEEN MARY O’TOOLE, J., concurs in judgment only.