State v. Dinkins, 1-06-50 (4-23-2007)State v. Dinkins, 1-06-50 (4-23-2007)
OPINION
{¶ 1} Dеfendant-Appellant Tommy R. Dinkins (“Dinkins“) appeals from the May 30, 2006 Judgment Entry of Sentencing of the Court of Common Pleas of Allen County, Ohio sentencing him to five years in prison for his conviction of Unlawful Sexual Conduct With a Minor, a felony of the third degree in violation of
{¶ 2} This matter stems from events occurring on April 17, 2004 in Lima, Ohio. On this date, the victim in the present case (“Heather“) had just turned 13 years old and was living with her mother in an apartment on Baxter Street. On this date, Heather and a friend were having a sleepover and Heather‘s mother left the girls alone in the apartment for awhile when she went to pick up some furniture. However, Heather‘s mother instructed the girls that they were not to let anyone into the house while she was gone.
{¶ 3} Sometime between 8:00 and 9:00 p.m. Dinkins knocked on the door and asked for Heather‘s mother. Dinkins claimed that he wanted to call Heather‘s mother, and Heather thought he might have been a friend of her mother‘s, so she went downstairs to a neighbor‘s apartment to use the phone. Heather was able to reach her mother аnd told her that someone named “Tommy” was there to see her.
{¶ 4} Heather went back upstairs and let Dinkins into the apartment. Dinkins sat in the living room while Heather and her friend went into her bedroom and locked the door. At some point, Heather‘s friend left the bedroom to get something to drink. As Heather tried to shut the door behind her friend, Dinkins came into the bedroom, told her to lie on the bed, and told her that anything she didn‘t do, she would regret. Dinkins lifted up Heather‘s skirt, got on top of her, and had sex with her while Heather unsuccessfully said “no” and tried to fight back. Dinkins told Heather not to tell anybody and then got up and left. Heather‘s friend returned to the bedroom and found Heather crying. Heather stated that something bad had happened but the two girls went to bed before Heather‘s mother returned.
{¶ 5} The next day, Heather‘s mother noticed that Heather was acting strange and Heather revealed that “Tommy” had sexually assaulted her. Heather‘s mother subsequently filed a police report concerning the incident.
{¶ 6} On March 17, 2005 the Allen County Grand Jury indicted Dinkins on one count of Unlawful Sexual Conduct With a Minor, a felony of the third degree in violation оf
{¶ 7} This matter proceeded to a jury trial commencing February 21, 2006. On February 22, 2006 the jury returned a verdict finding Dinkins guilty of both charges contained in the indictment.
{¶ 8} On May 30, 2006 the trial court conducted Dinkins’ sentencing hearing. The trial court sentenced Dinkins to five years in prison for his conviction of Count One, Unlawful Sexual Conduct with a Minor in violation of
{¶ 9} Dinkins now appeals, asserting two assignments of error.
ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED ERROR BY FAILING TO INSERT A REQUESTED INSTRUCTION OF THE DEFENDANT AS TO ALTERNATIVE COUNTS IN THE INDICTMENTS PURSUANT TO OHIO JURY INSTRUCTION SECTION 413.30.
{¶ 10} In his first assignment of error, Dinkins contends that the trial court erred in failing to give his requested jury instruction on alternative counts as he was charged with two counts for the same act which act as allied offenses of similar import.
{¶ 11} In general, the rule regarding apрellate review of jury instructions is that a sole instruction must be viewed within context of the whole set rather than isolation. State v. Coe, 3rd Dist. No. 13-97-46, 1998 WL 306555 citing State v. Taylor (1997), 78 Ohio St.3d 15, 29-30, 676 N.E.2d 82; State v. Price (1979), 60 Ohio St.2d 136, 398 N.E.2d 772, paragraph four of the syllabus.
{¶ 12} Our review of the record demonstrates that the defense requested that the court include Ohio Jury Instruction 413.30 concerning alternative counts. (Transcript (“Tr.“) of February 21-22, 2006 jury triаl, p. 195). This jury instruction provides as follows:
413.30 Alternative Counts
1. The offenses charged in count . . . and count. . .of the indictment (information) do not charge two separate offenses, but in effect charge that the defendant(s) committed one or the other of such offenses.
2. GUILTY OF ONE. If you find that the state proved beyond a reasonable doubt all the essential elements of one offense, your
verdict must be guilty as to that offense and not guilty as to the other. 3. NOT GUILTY. If you find that the state failed to prove beyond a reasonable doubt any one of the essential elements of both offenses, yоur verdict must be not guilty as to both offenses.
4. VERDICT. 4 OJI 413.50
{¶ 13} Defense counsel asserted that this instruction would be appropriate because there was only one act at issue; thus the jury should be able to find Dinkins guilty of one offense as opposed to finding him guilty of both counts of the indictment if the instruction was not given. (Tr. p. 195). In overruling Dinkins’ request, the trial court stated that the charges in the indictment were not alternative charges, but separate charges. (Tr. p. 195).
{¶ 14} In the present case, Dinkins was charged with one count of Unlawful Sexual Conduct With a Minor in violation of
(A) No person who is eighteen years of age or older shall engage in sexual conduct with another, who is not the spouse of the offender, when the offender knows that the other person is thirteen years of age or older but less than sixteen years of age, or the offender is reckless in that regard.
(B) Whoever violates this section is guilty of unlawful sexual conduct with a minor.
* * *
(3) Except as otherwise provided in division (B)(4) of this section, if the offender is ten or more years older than the other person, unlawful sexual conduct with a minor is a felony of the third degree.
{¶ 16} In determining whether two separate charges constitute allied offenses of similar import, we must look to Ohio‘s multiple count statute,
(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant‘s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.
{¶ 17} The Supreme Court of Ohio analyzed this statute in State v. Rance (1999), 85 Ohio St.3d 632, 710 N.E.2d 699. In order to convict a criminal defendant on multiple charges, they must either be (1) of dissimilar import, or (2) committed separately or with a separate animus if they are of similar import. State v. Brown 3rd Dist. No. 1-05-11, 2005-Ohio-6177 citing State v. Rance (1999), 85 Ohio St.3d at 636. The test for determining whether two offenses are of similar import is whether the offenses “correspond to such a degree that the commission
{¶ 18} Comparing the elements of Unlawful Sexual Conduct With a Minor and Rape in the abstract, we note that commission of the one offense does not automatically entail commission of the other. Specifically, we note that conviction for Rape requires proof that the defendant engage in sexual conduct with another when the offender purposely compels the other person to submit by force or threat of force.
{¶ 19} Therеfore, each offense that Dinkins was charged requires proof of an element that the other does not, and therefore they cannot be allied offenses of similar import.
{¶ 20} Additionally, we also note that the charge of Unlawful Sexual Conduct With a Minor is not a lesser included оffense of the charge of Rape.
{¶ 21} In State v. Deem (1988), 40 Ohio St.3d 205, 533 N.E.2d 294 at paragraph three of the syllabus, the Supreme Court of Ohio set for the test for determining whether one offense is a lesser included offense of another:
“An offense may be a lesser included offense of another if (i) the offense carries a lesser penalty than the other; (ii) the greater offense cannot, as statutorily defined, ever be committed without the lesser offense, as statutorily defined, also being committed; and (iii) some element of the greater offense is not required to prove the cоmmission of the lesser offense. (State v. Kidder [1987], 32 Ohio St.3d 279, 513 N.E.2d 311, modified).”
{¶ 22} We note that the offense of Rape as charged in this case does not contain age as an element in contrast to the offense of Unlawful Sexual Conduct With a Minor. Therefore, Rape, as statutorily defined in
{¶ 23} As the trial court correctly noted when denying defense counsel‘s request for a jury instruction on alternative counts; the two crimes with which Dinkins was charged are sеparate criminal offenses, not alternatively charged counts of the same crime. Accordingly, we find that the trial court did not err in failing to give a jury instruction on alternative counts. Therefore, Dinkins’ first assignment of error is overruled.
ASSIGNMENT OF ERROR II
{¶ 24} In his second assignment of error, Dinkins contends that the trial сourt improperly overruled his
{¶ 25}
{¶ 26} The defendant may move the court for acquittal “after the evidence on either side is closed.”
{¶ 27} Our review of the record reveals that Dinkins made his
{¶ 28} Count Two of the indictment herein charged Dinkins with one count of rape in violation of
{¶ 29} The Ohio Supreme Court has held that “[f]orce need not be overt and physically brutal, but can be subtle and psychological.” State v. Eskridge (1998), 38 Ohio St.3d 56, 58-59, 26 N.E.2d 204. “As long as it can be shown that the rape victim‘s will was overcome by fear or duress, the forcible element of rape can be established.” Id. A threat of force can be inferred from the circumstances surrounding sexual conduct. State v. Edgington, 4th Dist. No. 05CA2866, 2006-Ohio-3712 citing State v. Schaim (1992), 65 Ohio St.3d 51 at paragraph оne of the syllabus. Furthermore, the amount of force necessary to commit rape is not fixed; it depends on the parties’ age, size, strength, and relation to each other. State v. Riffle (1996), 110 Ohio App.3d 554, 560, 674 N.E.2d 1214 citing State v. Eskridge (1988), 38 Ohio St.3d 56, 526 N.E.2d 204 at paragraph one of the syllabus. Moreover,
{¶ 30} In her trial testimony, Heather testified that when Dinkins came to the doorway of her bedroom she felt it was a threat. Specifically, Heather stated, “[i]t was a threat. It was coming to me as a threat. He told me to lay (sic) down on the bed. If I didn‘t do it, I would regret it.” (Tr. p. 54). Heathеr also testified
{¶ 31} Upon review of the record, we find sufficient evidence to support a finding of the element of force or threat of force as to the charge of rape in the present case. Accordingly, we cаnnot find that the trial court erred in denying Dinkins’
{¶ 32} Based on the foregoing, the May 30, 2006 Judgment Entry of Sentencing of the Allen County Court of Common Pleas sentencing Dinkins to concurrent prison terms of five years for his conviction of Unlawful Sexual Conduct With a Minor and ten years for his conviction of Rape, is affirmed.
Judgment affirmed.
PRESTON and WILLAMOWSKI, JJ., concur.