STATE OF OHIO v. BRANDON FRAZIER
No. 107680
COURT OF APPEALS OF OHIO, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
July 3, 2019
[Cite as State v. Frazier, 2019-Ohio-2739.]
LARRY A. JONES, SR., J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-17-621629-A
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: July 3, 2019
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Debora Brewer and Katherine Mullin, Assistant Prosecuting Attorneys, for appellee.
Mark A. Stanton, Cuyahoga County Public Defender, and Frank Cavallo, Assistant Public Defender, for appellant.
LARRY A. JONES, SR., J.:
{¶ 1} Defendant-appellant Brandon Frazier appeals his convictions for rape, attempted rape, kidnapping, and unlawful sexual conduct with a minor. Finding no merit to the appeal, we affirm.
{¶ 3} A.F. testified that in July 2014, she was 13 years old and visiting her father, with whom she did not live, when Frazier, her uncle, stopped over. Frazier asked A.F. if she wanted to go to the store with him. According to A.F., the following then occurred. A.F. got into Frazier‘s car, despite her mother and stepmother‘s admonitions to stay away from Frazier because he was “bad.” Frazier began driving but did not stop at any of the several stores they passed. Instead, he pulled down a side street and into the driveway of a blue house. He told A.F. that it was a coworker‘s house and he needed to pick up something. Frazier had a key to the house and let A.F. inside, where she went to look for a television remote. She was in the master bedroom and on the bed, looking under the bed for the remote, when Frazier came in and shut the door. He pulled A.F.‘s pants down and told her to lay back on the bed. Frazier then performed oral sex on A.F. She tried to “push” up and down to get him to stop. Frazier stood up and pulled A.F. to a standing position. He then took off A.F.‘s shirt, forcibly tried to kiss her, and forced her to perform oral sex on him after pushing her to her knees.
{¶ 5} In the summer of 2017, A.F. and her mother were at a church meeting when A.F. texted her mother, who was sitting a few pews away, and disclosed the assault via two lengthy text message exchanges. In the text message exchanges, copies of which were submitted into evidence, A.F. made her mother promise she would not tell anyone about the assault. A.F.‘s mother testified she was able to convince her daughter to report the assault to the police.
{¶ 6} During trial, the state dismissed one count of rape. The jury convicted Frazier of all remaining counts. The trial court found Frazier to be a repeat violent offender and sentenced him to a total of ten years in prison. Further facts will be discussed under the assignments of error.
{¶ 7} Frazier filed a timely notice of appeal and raises the following assignments of error for our review:
- There was insufficient evidence produced at trial to support a finding of guilt on all counts.
- Appellant‘s convictions were against the manifest weight of the evidence.
- The trial court committed plain error when it instructed that a lesser demonstration of force was required when the relationship between victim and defendant was one of child and adult or authority figure.
- Appellant was denied the effective assistance of counsel where trial counsel acquiesced in a jury instruction providing for an incorrect, lesser requirement of force where the relationship between the victim and defendant was one of child and adult or authority
figure.
Frazier‘s Convictions Were Supported by Sufficient Evidence
{¶ 8} In the first assignment of error, Frazier contends that there was insufficient evidence to support his convictions.
{¶ 9}
Rape and Attempted Rape
{¶ 10} Frazier claims that there was insufficient evidence that he raped and attempted to rape A.F.
{¶ 11} In Ohio, “sexual conduct” is defined as 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.
{¶ 12}
{¶ 13} Frazier contends that there was insufficient evidence that he committed rape via forced oral intercourse and digital penetration. According to Frazier, the state did not present evidence that Frazier used force or sufficient evidence that A.F. was an unwilling participant. After a careful review of the record
{¶ 14} A.F. testified that Frazier first digitally penetrated her with his index finger. When A.F. said “no” because it hurt, “he took it out and stopped.” A.F. further testified that Frazier laid her back on the bed, took off her pants, and started “biting” and “licking” her vagina. According to A.F. she tried to “push” herself up or down, hoping that he would stop, but he did not stop. Frazier then attempted to kiss A.F., but she turned her head. He tried to push A.F. to her knees by putting his hand on top of her head but, A.F. testified, she resisted:
* * * he tried to push me down, my head, he put his hand on top of my head to try to push me down to lower me, and it didn‘t work because I‘m sufficiently tall and I wouldn‘t go down, but I was really stiff. And at that point he got me to where I was on my knees and my mouth did get on his [penis].
{¶ 15} A.F. testified that she initially told Frazier “no,” but stopped repeating it because she thought her telling him “no” did not mean anything to him since he kept assaulting her. She also explained that she did not fight Frazier off because he was bigger than she.
{¶ 16} A.F. testified that she never told her father about the assault because she was afraid he would not believe her over Frazier. She also did not disclose the assault to her mother until 2017 because she wanted to spend time with her father and was worried that her mother would not allow A.F. to go to her father‘s house if her mother knew about the assault.
Kidnapping
{¶ 18} Frazier next contends that the state presented insufficient evidence of kidnapping, again claiming that any sexual conduct was consensual. We disagree.
{¶ 19} Frazier was convicted of kidnapping, in violation of
{¶ 20} A.F. testified that Frazier asked her if she wanted to go to the store with him. She got into his car with the expectation that he was taking her to the store. But, A.F. testified, Frazier did not stop at any stores, even though A.F. asked
Unlawful Sexual Conduct with a Minor
{¶ 21} Frazier next contends that the state did not present sufficient evidence to convict him of unlawful sexual conduct with a minor.
{¶ 22}
{¶ 23} Frazier claims that he did not know A.F. was under 16 years of age when he engaged in a sexual relationship with her, nor was he reckless in that regard. Under
{¶ 24} A person acts recklessly when, with heedless indifference to the consequences, he perversely disregards a known risk that his conduct is likely to
{¶ 25} The legislature intentionally based the definition of “recklessness” on the likelihood, rather than the probability, of a certain result. See id. at staff notes. “Something is ‘probable’ when there is more reason for expectation or belief than not, whereas something is ‘likely’ when there is merely good reason for expectation or belief.” Id.; see also State v. Becker, 8th Dist. Cuyahoga No. 100524, 2014-Ohio-4565.
{¶ 26} We find that the state presented sufficient evidence that Frazier either knew A.F. was under the age of 16 or was reckless in that regard. Frazier is A.F.‘s paternal uncle; it is reasonable to assume that Frazier knew, or was reckless in not knowing, A.F.‘s age.
{¶ 27} Finding that the state presented sufficient evidence to convict Frazier of rape, attempted rape, kidnapping, and unlawful sexual conduct with a minor, the first assignment of error is hereby overruled.
Frazier‘s Convictions were not Against the Manifest Weight of the Evidence
{¶ 28} In the second assignment of error, Frazier claims that his convictions were against the manifest weight of the evidence.
{¶ 29} In contrast to sufficiency, “weight of the evidence involves the inclination of the greater amount of credible evidence.” Thompkins, 78 Ohio St.3d
{¶ 30} We are mindful that the weight to be given the evidence and the credibility of the witnesses are matters primarily for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. The trier of fact has the authority to “believe or disbelieve any witness or accept part of what a witness says and reject the rest.” State v Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964).
{¶ 31} Frazier contends that his convictions are against the manifest weight of the evidence because A.F. could not specify the date and location of the assault. The indictment in this case listed the date of the assault as between July 2 and August 31, 2014. During her testimony, A.F. said the assault occurred in July 2014.
{¶ 32} The date of the offense is not an element of the crime charged:
Where such crimes constitute sexual offenses against children, indictments need not state with specificity the dates of alleged abuse, so long as the prosecution establishes that the offense was committed within the time frame alleged. This is partly due to the fact that the specific date and time of the offense are not elements of the crimes charged.
State v. Bruce, 8th Dist. Cuyahoga No. 92016, 2009-Ohio-6214, ¶ 112.
{¶ 33} In addition, even though A.F. did not know the name of the street where the assault occurred, she testified that it occurred in Cleveland, Cuyahoga County, Ohio.
{¶ 34} Frazier also claims that the verdict was against the manifest weight of the evidence because there was no evidence corroborating A.F.‘s story. But the absence of corroborative evidence does not render a rape conviction against the manifest weight of the evidence. See State v. Hruby, 8th Dist. Cuyahoga No. 81303, 2003-Ohio-746, ¶ 12. Given the fact that A.F. did not tell anyone about the assault for three years, the lack of forensic or physical evidence is to be expected.
{¶ 35} The evidence shows that A.F. was consistent with her disclosures to her mother and police. Frazier points out one inconsistency in A.F.‘s testimony, where A.F. told her mother via text message that she did not tell Frazier “no” as he was assaulting her, but testified that she did, in fact, tell Frazier “no.” The state addressed this inconsistency during A.F.‘s testimony. A.F. explained:
Prosecutor: In those text messages [to your mother] you said you didn‘t say no, but you did say no, you just testified to that. Can you kind of explain that?
A.F.: I said no, but it didn‘t mean anything obviously. And I told her that I said no — I didn‘t say no because he wouldn‘t care.
{¶ 37} The jury was in the best position to judge witness credibility, including whether to believe A.F.‘s testimony, and weigh all evidence. We do not find that this is the rare case where the convictions are against the manifest weight of the evidence.
{¶ 38} The second assignment of error is overruled.
The Trial Court did not Commit Plain Error
{¶ 39} In the third assignment of error, Frazier contends that the trial court committed plain error in instructing the jury on the use of force.
{¶ 40} The court instructed the jury as follows:
The force of a parent or other authority figure.
When the relationship between the victim and the Defendant is one of a child, and in this case an uncle, the element of force need not be openly displayed or physically brutal. It can be subtle, slight, and psychological or emotionally powerful. Evidence of an express threat of harm or evidence of significant physical restraint is not required. If you find beyond a reasonable doubt that under the circumstances in evidence the victim‘s will was overcome by fear or duress or intimidation, the element of force has been proved.
{¶ 41} Frazier did not object to the jury instruction; therefore, he has waived all but plain error:
On appeal, a party may not assign as error the giving or the failure to give any instructions unless the party objects before the jury retires to
consider its verdict, stating specifically the matter objected to and the grounds of the objection. Crim. R. 30(A) . If a defendant fails to object to the court‘s giving of an instruction or failure to give an instruction, he or she forfeits all but plain error on appeal.
State v. Kudla, 9th Dist. Summit No. 27652, 2016-Ohio-5215, ¶ 17.
{¶ 42} In this case, we find that the instruction was not in error. Frazier was charged with one count of rape relating to forced fellatio. As we previously found, A.F.‘s testimony that Frazier pushed her head down with his hands until she got on her knees was sufficient to show force.
{¶ 43} With regard to the other rape and attempted rape convictions, the instruction was also not in error. We recognize that this court has rejected a per se rule that “force” under
{¶ 44} Frazier is A.F.‘s uncle. He was 36 at the time of the assault. A.F. had just turned 13 years old. A.F. testified that she did what Frazier told her to do because he was bigger than her. Thus, A.F. was forced to submit to the authority of her 36 year old uncle. In addition, Frazier told A.F. to keep the assault a secret, which she did for three years. See Eskridge, 38 Ohio St.3d at 59, 526 N.E.2d 304, citing Fowler, 27 Ohio App.3d 149, 500 N.E. 2d 390 (in both cases, the court
{¶ 45} In light of the above, the third assignment of error is overruled.
Frazier Received Effective Assistance of Trial Counsel
{¶ 46} In the fourth assignment of error, Frazier claims that he received ineffective assistance of counsel because counsel failed to object to the court‘s jury instruction on force.
{¶ 47} The standard of review for ineffective assistance of counsel requires a two-part test as set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “The defendant must show that counsel‘s representation fell below an objective standard of reasonableness.” Id. at 687-688. The defendant must also prove that “there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.
{¶ 49} The fourth assignment of error is overruled.
{¶ 50} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
LARRY A. JONES, SR., JUDGE
SEAN C. GALLAGHER, P.J., and
EILEEN A. GALLAGHER, J., CONCUR