673 N.E.2d 985 | Ohio Ct. App. | 1996
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *242 Defendant-appellant, William E. Gleason, appeals his convictions of two counts of disseminating matter harmful to juveniles. We affirm in part and reverse in part.
Appellant was indicted in 1991 on four counts of rape and four counts of gross sexual imposition. The offenses were alleged to have been committed during 1984 and/or 1985 and involved two minor children, Phoebe W. and Adam W., who lived with appellant during the period in question. The indictment was later amended to add one count of disseminating matter harmful to juveniles with *243 respect to Phoebe and one count of disseminating matter harmful to juveniles with respect to Adam.
The Summit County Common Pleas Court granted a defense motion to suppress evidence obtained during a warrantless search of appellant's home. Upon the state's appeal of the suppression order, this court reversed the decision of the trial court and remanded the case for further proceedings. State v. Gleason (Nov. 4, 1992), Summit App. No. 15749, unreported, 1992 WL 323906.
Appellant was tried before a jury, which found him guilty of both counts of disseminating matter harmful to juveniles. The jury was unable to reach verdicts on any of the eight counts of rape and gross sexual imposition. Upon motion by the state, the court dismissed those charges.
Following sentencing, appellant filed a timely notice of appeal. He asserts four assignments of error.
In his first assignment of error, appellant claims that the guilty verdicts rendered on the charges of disseminating matter harmful to juveniles are against the manifest weight of the evidence and are inconsistent with the jury's inability to reach verdicts on the rape and sexual imposition charges. Appellant argues that the state tried him on a theory that he had used harmful materials to educate or arouse Phoebe and Adam so that he could engage in sexual activity with them. Appellant theorizes that, because the jury could not reach verdicts on the rape and sexual imposition charges, it could not have found that he disseminated matter harmful to juveniles. As partial support for his argument, appellant cites a transcript of a colloquy between the court, defense counsel, and the jury, which took place after the verdicts were returned. Appellant also maintains that the jury ignored the court's instructions.
The standard for determining whether a conviction is against the manifest weight of the evidence was set forth in State v.Otten (1986),
"In determining whether a criminal conviction is against the manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." *244
This discretionary power should be invoked only in extraordinary circumstances when the evidence presented weighs heavily in favor of the defendant. Id.
In finding the appellant guilty of disseminating matter harmful to juveniles in violation of R.C.
Phoebe was between ten and eleven years old and Adam was between five and six years old at the time of the offenses. Neither child told anyone what had happened until approximately six years later. At that time, Adam reported that he and Phoebe had been made to watch sexually explicit films and that they were instructed to do what they had seen in the film, which included performing oral sex. Phoebe reported that appellant forced her to watch pornographic films depicting teenagers engaging in sexual activity. Following these viewings, appellant would force Phoebe to perform the acts she saw in the films.
The children's mother testified at trial that she and the children lived with appellant from 1981 until September 1985. She described pornographic magazines that appellant kept in his house and stated that appellant showed them to the children many times in her presence and that she would tell him not to do that. She was not aware, however, of any sexual abuse of the children until several years later when Adam first told her what had happened.
Phoebe testified that appellant would call her into his bedroom and tell her to look at magazines depicting people performing oral sex and intercourse. According to Phoebe, appellant used the magazines as a source of instruction prior to forcing her to engage in sexual acts with him. At times, Adam would be present. Phoebe also stated that she was forced, on at least one occasion, to watch a pornographic film. Appellant would obtain Phoebe's compliance by threatening to hurt or kill her, her mother, or Adam, or by threatening to throw them out of his house if she refused. *245
Adam testified that appellant made him look at photographs of people engaging in oral sex and would tell him to do what he saw. Adam also stated that appellant made him look at films of "younger people" engaging in sexual acts.
In light of the evidence before the jury on both counts of disseminating harmful materials to juveniles, the verdicts were not against the manifest weight of the evidence. Moreover, the record does not suggest that the jury failed to follow the instructions given by the court.
The jurors' guilty verdicts on the two counts of disseminating matter harmful to juveniles are not inconsistent with their inability to reach verdicts on the rape and sexual imposition counts. The elements of the crimes are substantially different, and evidence that the jurors may have found favorable to the defense on the rape and sexual imposition counts had no bearing on the dissemination counts. Individual counts in an indictment "are not interdependent and an inconsistency in a verdict does not arise out of inconsistent responses to different counts, but only arises out of inconsistent responses to the same count." State v. Brown (1984),
With respect to appellant's argument that postconviction discussions with the jury about how it arrived at its verdicts should be considered as evidence that the jury lost its way, this argument is without merit. In accordance with Evid.R. 606(B), a jury verdict may not be impeached by the testimony of a juror unless there is evidence aliunde impeaching the verdict.State v. Kehn (1977),
Appellant's first assignment of error is overruled.
The indictment charging appellant with two counts of disseminating matter harmful to juveniles in violation of R.C.
R.C.
The Ex Post Facto Clause of Section 10, Article
The minimum term of imprisonment in Ohio for a felony of the third degree is one year, and the minimum term of imprisonment for a felony of the fourth degree is six months. R.C.
Accordingly, appellant's second assignment of error is sustained.
The indictment charging appellant with two counts of disseminating matter harmful to juveniles stated in the first count, with respect to Phoebe, and in the second count with respect to Adam, that appellant "from on or about 1984 through on or about 1985 * * * did with knowledge of its character or content, recklessly furnish, disseminate, provide, exhibit, or present to * * * a juvenile under the age of Thirteen (13) years old, material or a performance that is obscene and harmful to juveniles, in violation of Section
The verdict form for these counts stated only that the jurors were to determine whether appellant was guilty or not guilty of "DISSEMINATING MATTER HARMFUL TO JUVENILES as charged in the Indictment." The verdict form did not identify the offense as either a felony or misdemeanor nor did it provide for any independent finding by the jury on the issue of whether the material disseminated was "obscene." The court did not read the indictment to the jury but instructed that, in order to find appellant guilty, the jury must find that any material disseminated "was obscene or harmful to a juvenile." (Emphasis added.)
In his third assignment of error, appellant argues that neither the jury instructions nor the verdict form properly instructed the jury that it must find that the material disseminated was harmful and obscene before it could convict appellant of a felony. Instead, the verdict form required only a finding that the material was "harmful," a misdemeanor of the first degree; and the jury instruction required a finding of obscene or harmful. Accordingly, appellant argues, he should have been sentenced only for committing two misdemeanors of the first degree.
R.C.
The guilty verdicts in this case clearly did not state either the degree of the offense or a finding that the material distributed was "obscene." The verdicts stated only that the material disseminated was "harmful." Under a plain reading of R.C.
The state urges this court to follow State v. Woods (1982),
The state also argues that appellant waived the right to raise this issue on appeal because he did not object to the verdict form or the jury instructions prior to jury deliberations. We agree that, ordinarily, failure to object to a jury instruction or verdict form constitutes waiver of any error for appeal. See, e.g., State v. Adams (1980),
We note, moreover, that appellant did raise this issue in the trial court, prior to sentencing, when the court refused to sentence him for convictions of misdemeanors as required by statute.
Appellant's third assignment of error is sustained.
At the close of the state's case, as well as at the close of the evidence, appellant moved for a judgment of acquittal based upon the failure of the state to provide evidence of a community standard on the elements of "harmful" and "obscene" *249 relative to the dissemination charges. In his fourth assignment of error, appellant argues that the trial court erred in overruling those motions.
Crim.R. 29(A) provides that the trial court shall enter a judgment of acquittal with respect to a particular offense "if the evidence is insufficient to sustain a conviction of such offense." In reviewing the sufficiency of the evidence, an appellate court must determine, after examining the evidence, whether the evidence presented by the state, if believed, "would convince the average mind of the defendant's guilt beyond a reasonable doubt." State v. Jenks (1991),
The state is not required to present expert witnesses or other evidence of community standards in order to establish its case so as to withstand a Crim.R. 29(A) motion for acquittal.Urbana ex rel. Newlin v. Downing (1989),
Several items taken from appellant's home were introduced into evidence. Both Phoebe and Adam testified that appellant showed them pornographic magazines and films that depicted fellatio, cunnilingus, and vaginal intercourse performed, at times, by groups and by "younger people." Viewing this information in a light most favorable to the prosecution, there was sufficient evidence from which reasonable minds could have concluded that this material was harmful.
Appellant's fourth assignment of error is overruled.
The decision of the trial court is affirmed in part, reversed in part, and remanded to the trial court for resentencing in accordance with our decision that appellant was convicted of two misdemeanors of the first degree and not two felonies of the third degree.
Judgment affirmed in part,reversed in part,and cause remanded with instructions.
DICKINSON and SLABY, JJ., concur.
"No person, with knowledge of its character or content, shall recklessly do any of the following:
"(1) Sell, deliver, furnish, disseminate, provide, exhibit, rent, or present to a juvenile any material or performance that is obscene or harmful to juveniles;
"* * *
"(3) Allow any juvenile to review or peruse any material or view any live performance that is harmful to juveniles."