STATE OF OHIO, PLAINTIFF-APPELLEE, v. BRIAN HEFT, DEFENDANT-APPELLANT.
CASE NO. 8-09-08
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT LOGAN COUNTY
November 9, 2009
2009-Ohio-5908
Appeal from Logan County Common Pleas Court Trial Court No. CR 07 08 155
O P I N I O N
Judgment Affirmed
APPEARANCES:
Alison Boggs for Appellant
Daniel LaRoche for Appellee
{¶1} Defendant-Appellant, Brian L. Heft, appeals the judgment of the Logan County Court of Common Pleas convicting him of two counts of gross sexual imposition. On appeal, Heft argues that
{¶2} In September 2007, the Logan County Grand Jury indicted Heft on Count One: rape in violation of
{¶3} In December 2007, Heft waived his speedy trial rights. Additionally, Heft filed a motion to continue the jury trial, which had been scheduled for January 8, 2008,1 on the basis that he required additional time to prepare for trial. Thereafter, the trial court vacated the trial date of January 8, 2008, and rescheduled the date to February 21, 2008.
{¶4} In February 2008, Heft filed a motion to vacate the trial date of February 21, 2008, on the basis that he again required additional time to prepare for trial. Additionally, Heft reiterated that he waived his right to have the case tried within the statutory period. Thereafter, the trial court vacated the trial date of February 21, 2008, and rescheduled the date to April 29, 2008.
{¶5} In April 2008, the State moved the trial court for an order pursuant to Crim.R. 7(D) to amend the indictment to include in each charge the culpable mental state.
{¶6} In May 2008, the trial court overruled the State‘s motion to amend the indictment, and dismissed the September 2007 indictment without prejudice.
{¶8} In August 2008, Heft filed a motion to dismiss the indictment on the basis that the State had violated his speedy trial rights, and that the speedy trial waivers he had filed in conjunction with the September 2007 indictment did not apply to the July 2008 indictment.
{¶9} In September 2008, the trial court overruled Heft‘s motion to dismiss, finding that, unlike a speedy trial waiver, periods of delay resulting from motions filed by the defendant in a previous case also apply in a subsequent case based on the same underlying facts and circumstances.
{¶10} In October 2008, Heft filed a motion to vacate the trial date of October 28, 2008, which the trial court granted, assigning the matter for jury trial on February 18, 2009.
{¶11} In February 2009, the case proceeded to jury trial, at which the following testimony was heard.
{¶13} Victoria Early testified that she had been close friends with S.W. for about five years at the time of the trial; that she observed S.W. and Heft interact as stepparent and stepdaughter on many occasions; that she did not believe Heft was as encouraging as a father figure should be; that Heft made negative comments to S.W. about her weight and appearance; that Heft also had a negative attitude regarding S.W.‘s boyfriends; that Heft was rude to S.W.‘s boyfriend and called him names; that S.W.‘s role in the household was uncommon because she often cooked, cleaned, and looked after her younger brother; that she believed S.W. had taken on this role because S.W.‘s mother, Bridget Heft, had health issues; that she observed that Bridget Heft spent most of the day watching television and drinking alcoholic beverages, and that she did not really clean; and, that, from her observations, she believed Heft and Bridget had more of a friendship than a marriage.
{¶15} Detective Scott Sebring of the Bellefontaine Police Department testified that, through his training, he was aware that many child victims of sexual abuse delay disclosure due to fear of not being believed, fear of discipline, fear of
{¶16} S.W. testified that, throughout her childhood, she lived in a household with her stepfather, Heft, her mother, Bridget Heft, her younger brother, Shawn, her older brother, Nick, and intermittently her step-grandmother, Beatrice; that Heft and her mother married when she was two years old, and he was the only father figure she had known; that the family resided on Reservoir Road in Bellefontaine between the dates of January 19, 2001, and June 3, 2004; that the family resided on Highview Drive in Bellefontaine between the dates of June 3, 2004, and July 23, 2007; that Heft was the primary financial provider for the family because her mother did not work, although she received social security
{¶17} S.W. continued that she did not get along well with Heft; that Heft sexually abused her when the family lived at both the Reservoir Road and Highview Drive residences; that, on Christmas Eve in 2001 or 2002, when the family lived on Reservoir Road, Heft had stayed up at night to cook a turkey; that Heft came into her room that night and summoned her to the door; that she went over to the door, and Heft pulled her pants and underwear down; that Heft attempted to kiss her near her vagina; that she pulled her pants and underwear up and went over to her bed to lie down, and Heft left the room; that Heft then came back into her room, pulled her covers off, pulled her pants down, and “started kissing [her] all over [her] body” (Id. at 171); that she attempted to keep her pants up, but Heft continued to try to kiss her lower and lower; that she could not do
{¶18} S.W. continued that many instances of sexual abuse occurred once the family moved to the Highview residence; that, approximately every other day, while she was sleeping in her room, Heft would touch her breasts without her consent; that she tried to keep her arms as tight as she could, but it did not prevent Heft; that the abuse impacted her to the point that she overdosed on prescription Amitriptyline in June 2006; that she took the medication with the goal of killing herself because she “couldn‘t take the abuse” (Id. at 187); that, on one occasion in July 2006 during the week of the Logan County Fair, she came home from tennis practice to get permission to go to the fair; that Heft told her to lie on his bed, and then “scooted” her to the edge of the bed; that Heft removed her pants and underwear, opened her legs, and engaged in vaginal intercourse with her for
{¶19} On cross-examination, S.W. testified that the incident on Christmas Eve at the Reservoir Road residence may have occurred in 2002 and not 2001, if receipts existed demonstrating that the family was not at home, but in Canal Winchester, on Christmas Eve in 2001; that she could not remember if the first instance of penetration occurred when she was sixteen, seventeen, or eighteen; that the second incident occurred in August before school started, but she could not remember the exact date; that her attempted suicide on Father‘s Day in 2006 occurred prior to the incidents of penetration, but after some of the touching incidents; that she lied to the hospital staff and told them she was not trying to kill herself; that it is possible she told the hospital staff that she and her parents were arguing because she was staying out late with her boyfriend, but she did not remember; that, the day she left home, her parents were not having any problems with her; that her parents did not complain to her that she was not completing her forms for college; that her parents did not have a problem with her staying out late; that they did not tell her to “straighten up” or move out; that she never told the police that her mother was mentally disabled, and the police report stating that was a mistake; that, although she helped cook and clean in the household, her mother did most of it; that she never did laundry; that she told her friends she was
{¶20} Thereafter, the State rested and Heft moved for dismissal of the indictment pursuant to Crim.R. 29. The trial court overruled Heft‘s motion. Heft then testified in his defense.
{¶21} Heft testified that he had never been involved with a criminal investigation prior to this proceeding; that his wife and S.W.‘s mother, Bridget Heft, suffered a stoke in 1999; that her stroke resulted in her having physical difficulties with her hand and some speech problems, but she had no mental disabilities; that S.W. never took care of the home and did not cook or clean; that, in fact, the family had issues with S.W. completing her assigned chores; that he and Bridget had a normal marital relationship, evidenced by the fact that Bridget had a son, Shawn, a year after she suffered the stroke; that his relationship with S.W. the first few years of his marriage to Bridget was “great“; that, as S.W. became a teenager, she became more challenging because she was argumentative and wanted to go out a lot; that he and Bridget expected S.W. to help out around
{¶22} On cross-examination, Heft testified that his income constituted the bulk of the household funds; that he did not know why S.W. would make false accusations against him, but speculated it was due to financial concerns, arguing, and the influence of her friends.
{¶23} Bridget Heft testified that she suffered a stroke in 1999; that her condition had improved over the years; that she continued to have physical difficulties with one hand, but had no mental problems; that she never saw Heft act inappropriately toward S.W. or touch her inappropriately; that S.W. never approached her with any accusations against Heft; that she drank four to six alcoholic beverages each evening; that Heft‘s mother and S.W.‘s step-grandmother, Beatrice, lived in the household most of the time; that Beatrice was always in the home unless she took her to a doctors appointment or to a store; that she and Heft had a normal marital relationship; that she did all of the cooking, cleaning, and laundry in the home, and could not imagine S.W. saying that she did it; that, the day S.W. left the home, she had been throwing a ball across the room and telling Shawn to run to get it; that she told S.W. to stop making Shawn run;
{¶24} After the close of testimony, the jury returned verdicts of guilty on Counts Three and Four, finding Heft guilty of two counts of gross sexual imposition. The jury was unable to reach a verdict on Counts One and Two, which were consequently dismissed upon the State‘s motion.
{¶25} In April 2009, the trial court ordered Heft to serve a fifteen-month prison term on Count Three, and a fifteen-month prison term on Count Four, to be served consecutively. Additionally, the trial court classified Heft as a Tier I sexual offender.
{¶26} It is from his conviction and sentence that Heft appeals, presenting the following assignments of error for our review.
Assignment of Error No. I
OHIO REVISED CODE SECTION 2907.05 IS UNCONSTITUTIONAL AS IT IS APPLIED TO APPELLANT AND OTHERS SIMILARLY SITUATED BECAUSE IT IS VAGUE AND OVERBROAD AND CONFLICTS WITH THE REQUIREMENTS OF OHIO REVISED CODE SECTION 2907.06.
THE TRIAL COURT ERRED WHEN IT ORDERED CONSECUTIVE SENTENCES.
Assignment of Error No. III
THE VERDICTS ON THE GROSS SEXUAL IMPOSITION COUNTS WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
Assignment of Error No. IV
APPELLANT WAS PREJUDICED BY THE COURT‘S HOWARD CHARGE TO THE JURY WHEN THE JURY INDICATED IT COULD NOT COME TO A VERDICT.
Assignment of Error No. V
APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL.
Assignment of Error No. VI
THE SECOND INDICTMENT WAS CONSTITUTIONALLY DEFICIENT AS IT WAS INTENTIONALLY VAGUE [SIC] THAT IT EFFECTIVELY DENIED APPELLANT THE ABILITY TO FORM A PROPER DEFENSE, EVEN THOUGH THE STATE PRESENTED EVIDENCE TO A SPECIFIC DATE DURING TRIAL WHICH WAS NEVER DISCLOSED THROUGH THE BILL OF PARTICULARS OR IN ANY SUBSEQUENT PLEADING.
Assignment of Error No. VII
APPELLANT DID NOT RECEIVE A FAIR TRIAL WHEN THE COURT PERMITTED THE INTRODUCTION OF EVIDENCE OF OTHER BAD ACTS, BY ALLOWING THE VICTIM TO TESTIFY IN VAGUE TERMS AS TO WHEN EACH OF THE CRIMES OCCURRED, ATTEMPTING TO
Assignment of Error No. VIII
APPELLANT WAS DEPRIVED AFFECTIVE [SIC] ASSISTANCE OF COUNSEL WHEN COUNSEL [SIC] WHICH DEPRIVED APPELLANT A FAIR TRIAL
{¶27} Due to the nature of Heft‘s assignments of error, we elect to address them in a different order than presented in his brief.
Assignment of Error No. I
{¶28} In his first assignment of error, Heft argues that
{¶29} Initially, we note that Heft failed to challenge the constitutionality of
{¶30} We find that the constitutional issue Heft now argues was apparent at the time of trial, and, therefore, Heft has waived the issue on appeal.
{¶31} Accordingly, we overrule Heft‘s first assignment of error.
Assignment of Error No. II
{¶32} In his second assignment of error, Heft contends that the trial court erred when it ordered him to serve consecutive sentences. Specifically, Heft argues that the trial court erroneously found he lacked remorse on the basis that he
{¶33} An appellate court must conduct a meaningful review of the trial court‘s sentencing decision. State v. Daughenbaugh, 3d Dist. No. 16-07-07, 2007-Ohio-5774, ¶8, citing State v. Carter, 11th Dist. No. 2003-P-0007, 2004-Ohio-1181. A meaningful review allows the appellate court to modify or vacate a felony sentence and remand the matter to the trial court for resentencing if clear and convincing evidence shows the sentence was contrary to law or was not supported by the record. Daughenbaugh, supra, citing Carter, 2004-Ohio-1181, at ¶44;
{¶34} The Supreme Court of Ohio, in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, declared portions of the felony sentencing statutes to be unconstitutional, specifically those portions requiring judicial fact finding before imposition of sentences, pursuant to the United States Supreme Court‘s decisions in Apprendi v. New Jersey (2000), 530 U.S. 466; Blakely v. Washington (2004), 542 U.S. 296; and United States v. Booker (2005), 543 U.S. 220. Specifically, Foster held that “[t]rial courts [now] have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or
{¶35} Furthermore, the Supreme Court of Ohio in State v. Bates, 118 Ohio St.3d 174, 2008-Ohio-1983, ¶18, held that “[t]he severance and excision of former
{¶36} Here, the trial court sentenced Heft to two consecutive fifteen-month prison terms for his gross sexual imposition convictions, fourth degree felonies. Under
{¶37} Accordingly, we overrule Heft‘s second assignment of error.
Assignment of Error No. V
{¶38} In his fifth assignment of error, Heft argues that he was denied his constitutional right to a speedy trial. Specifically, Heft contends that the matter came for trial 6062 days after his arrest, and, although he filed numerous motions
{¶39} “Our standard of review upon an appeal raising a speedy trial issue is to count the expired days as directed by
{¶40} “Both the United States and Ohio Constitutions guarantee a criminal defendant the right to a speedy trial.” State v. Masters, 172 Ohio App.3d 666, 2007-Ohio-4229, ¶9, citing State v. Baker, 78 Ohio St.3d 108, 110, 1997-Ohio-229. In addition, Ohio statutes set forth specific time requirements necessary for compliance with the speedy-trial guarantee. The applicable statutory speedy-trial provision,
{¶41} Additionally,
{¶42} Time extensions are permitted in limited circumstances under
{¶43} The statutory time period begins to run on the date the defendant is arrested; however, the date of arrest is not counted when computing the time period. Masters, 2007-Ohio-4229, at ¶12, citing State v. Stewart (1998), 12th Dist. No. CA98-03-021, 1998 WL 640909. Additionally, the triple-count statute,
{¶44} The Supreme Court of Ohio has specifically addressed speedy trial situations in which an original indictment is dismissed and a second indictment is later filed. In State v. Broughton, the Supreme Court held that, “[f]or purposes of computing how much time has run against the state under
{¶45} Appellate districts interpreting Broughton have subsequently found that a trial court‘s failure to explicitly declare that a defendant is released from bail
{¶46} In the case before us, Heft was arrested on July 24, 2007, and spent two days in jail, before being released on bond awaiting trial. The matter did not come to trial until February 18, 2009, 578 days after his arrest. Thus, at first observation, it appears Heft‘s speedy trial rights were violated.
{¶47} The primary issue Heft and the State dispute as to allocation of days for speedy trial purposes is whether the time period between the dismissal of the first indictment and service of the second indictment is attributable to the State
{¶48} Considering the pertinent events in the case before us, we find the tolling events and days attributable to Heft and the State to be allocated as follows:
| Dates | Events | Days | Days Attributed to Defendant | Days Attributed to State |
|---|---|---|---|---|
| 7-24-07 to 7-26-07 | Arrest of Defendant Defendant released on own recognizance bond | 6 | 0 | 6 (2 days, triple counted) |
| 7-27-07 to 12-16-07 | 143 | 0 | 143 | |
| 12-17-07 to 2-04-08 | Defendant‘s motion to continue trial (rescheduled for 2-21-08) | 50 | 50 | 0 |
| 2-05-08 to 4-28-08 | Defendant‘s motion to continue (rescheduled for 4- | 84 | 84 | 0 |
| 4-28-08 to 5-15-08 | State‘s motion to dismiss pending (granted 4-28-08, but not journalized until 5-15-08) | 17 | 17 | |
| 5-15-08 to 7-07-08 | No charges pending | 53 | 0 | 0 |
| 7-08-08 | Second indictment issued | 1 | 0 | 0 |
| 7-09-08 to 8-17-08 | Defendant served summons on second indictment | 40 | 0 | 40 |
| 8-18-08 to 9-03-08 | Defendant‘s motion to dismiss Court denies Defendant‘s motion to dismiss | 17 | 17 | 0 |
| 9-04-08 to 10-19-08 | 46 | 0 | 46 | |
| 10-20-08 to 2-18-09 | Defendant‘s motion to continue (trial rescheduled for 2-18-09) Jury trial commences | 121 | 121 | |
| TOTAL | 578 | 272 | 252 |
{¶48} As illustrated above, the total number of days allocated to the State is below the 270 day limit, and Heft‘s speedy trial argument fails.
{¶49} Accordingly, we overrule Heft‘s fifth assignment of error.
Assignment of Error No. VI
{¶50} In his sixth assignment of error, Heft contends that the second indictment was constitutionally deficient as it was intentionally vague, and that it effectively denied him the ability to form a proper defense, even though the State presented evidence of a specific date during the trial which was never disclosed through the bill of particulars or any other pleading. Specifically, Heft argues that
{¶49} Initially, we note that Heft failed to object to the indictment prior to trial. As such, he has waived all but plain error. See State v. Rohrbaugh, 178 Ohio App.3d 211, 2008-Ohio-4781, ¶20;
{¶50} A criminal indictment is sufficient only if it “(1) contains the elements of the charged offense, (2) gives the defendant adequate notice of the charges, and (3) protects the defendant against double jeopardy.” Valentine v. Konteh (C.A.6, 2005), 395 F.3d 626, 631. Additionally, courts have found that:
[w]here such crimes constitute sexual offenses against children, indictments need not state with specificity the dates of the 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 offenses are not elements of the crimes charged. Moreover, many child victims are unable to remember exact dates and times, particularly where the crimes involved a repeated course of conduct over an extended period of time. The problem is compounded where the accused and the victim are related or reside in the same household, situations which often facilitate an extended period of abuse.
State v. Yaacov, 8th Dist. No. 86674, 2006-Ohio-5321 (internal citations omitted); see, also, State v. Mundy (1994), 99 Ohio App.3d 275.
{¶51} In Valentine, supra, a defendant was convicted of twenty counts of rape, based on twenty identically worded indictments, and twenty counts of felonious sexual penetration, based on twenty identically worded indictments. The federal appeals court reversed all but one of the rape convictions and all but one of the sexual penetration convictions, finding that the prosecution “did not distinguish the factual bases of these charges in the indictment, in the bill of particulars, or even at trial.” 395 F.3d at 628. Consequently, the federal court found that the defendant “had notice that he was charged with two separate crimes during the period of time specified in the indictment. But he had no way to otherwise identify what he was to defend against in the repetitive counts and no way to determine what charges of a similar nature could be brought against him in the future if he were re-indicted.” 395 F.3d at 628-29. Noting the lessened requirement of specificity in regards to date and time for indictments for sexual offenses against children, the court distinguished Valentine‘s case, stating that:
[t]he problem in this case is not the fact that the prosecution did not provide the defendant with exact times and places. If there had been singular counts of each offense, the lack of particularity would not have presented the same problem. Instead, the problem is that within each set of 20 counts, there are absolutely no distinctions made. [The defendant] was prosecuted for two criminal acts that occurred twenty times each, rather than for forty separate criminal acts. In its charges and in its evidence before the jury, the prosecution did not attempt to lay out the factual bases of forty separate incidents that took place.
{¶52} Here, Heft‘s July 2008 indictment reflects that the grand jury found the following:
COUNT I.
Brian L. Heft, between the dates of July 1, 2006 and August 31, 2006, at the county of Logan aforesaid, purposely engaged in sexual conduct with another when the offender purposely compels the other person to submit by force or threat of force, in violation of
Ohio Revised Code Section 2907.02(A)(2) , Rape, a felony of the first degree.COUNT II.
Brian L. Heft, between the dates of July 1, 2006 and August 31, 2006, at the county of Logan aforesaid, knowingly engaged in sexual conduct with another, not the spouse of the offender when the offender is the other person‘s natural or adoptive parent, or a stepparent, or guardian, custodian, or person in loco parentis of the other person, in violation of
Ohio Revised Code §2907.03(A)(5) , Sexual Battery, a felony of the third degree.COUNT III.
Brian L. Heft, between the dates of January 19, 2001 and June 2, 2004, at the county of Logan aforesaid, purposely had sexual contact with another, not the spouse of the offender; purposely caused another, not the spouse of the offender, to have sexual contact with the offender; or purposely caused two or more other persons to have sexual contact when the offender purposely compels the other person, or one of the other persons,
to submit by force or threat of force, in violation of Ohio Revised Code §2907.05(A)(1) , Gross Sexual Imposition, a felony of the fourth degree.COUNT IV.
Brian L. heft, between the dates of June 3, 2004 and July 21, 2007, at the county of Logan aforesaid, purposely had sexual contact with another, not the spouse of the offender; purposely caused another, not the spouse of the offender, to have sexual contact with the offender; or purposely caused two or more other persons to have sexual contact when the offender purposely compels the other person, or one of the other persons, to submit by force or threat of force, in violation of
Ohio Revised Code R.C. §2907.05(A)(1) , Gross Sexual Imposition, a felony of the fourth degree.
{¶53} We note that Heft filed no request for a bill of particulars as to this second indictment, nor did the State file one. Nevertheless, we find the case before us to be distinguishable from the situation presented in Valentine because the indictment provided Heft with adequate notice of the offenses as well as protection from double jeopardy.
{¶54} Here, while the indictment does not specifically enumerate every instance of sexual contact the victim alleged over the six-year period, it sets forth a single representative count of gross sexual imposition for each household in which the family lived during the six-year period. Additionally, the indictment sets forth one count for the rape instance the victim alleged, and one count for the instance of sexual battery the victim alleged. We find that the indictment sufficiently connected each charge to a specific incident, providing Heft with adequate notice
{¶55} Additionally, we find that the indictment protects Heft against double jeopardy because, unlike the defective indictment at issue in Valentine, Heft‘s indictment differentiated the counts by the type of offense alleged and the time period. As the counts were differentiated, Heft is protected against a subsequent prosecution for the same conduct. See State v. Van Voorhis, 3d Dist. No. 8-07-23, 2008-Ohio-3224, ¶44.
{¶56} Accordingly, we overrule Heft‘s sixth assignment of error.
Assignment of Error No. VII
{¶57} In his seventh assignment of error, Heft argues that he did not receive a fair trial because the trial court permitted the introduction of evidence of other unindicted offenses by permitting the victim to testify in vague terms as to when each of the incidents occurred. Specifically, Heft contends that S.W. was permitted to testify about multiple occasions of alleged abuse for which he was not indicted, which he contends constituted prohibited “bad acts” evidence in violation of
{¶58}
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
{¶60} Regarding the applicability to
{¶61} In Shaw, supra, a defendant was indicted for fifteen counts of rape and ten counts of sexual battery against three different victims. At trial, the State elicited testimony about several specific instances of abuse, in addition to “extensive” testimony from each victim that she was abused multiple times each week for several years. On appeal, the State argued that the testimony about the unindicted offenses was admissible under
{¶62} In Meador, a defendant was charged with three counts of rape against one victim, and with other sexual offenses against the victim‘s cousin. Although the cases were severed for trial, the trial court permitted several witnesses to testify at the victim‘s trial about an unelaborated “incident” with the cousin to put the offenses at issue within a time frame. However, the testimony
{¶63} Here, S.W. stated at trial that Heft sexually abused her on “multiple occasions” (Id. at 167); that, when the family moved into the Highview residence, there were “many” incidents of sexual abuse (Id. at 176); that, during these incidents, Heft would “always come in – well, most of the time it was usually pretty much every other day is what it felt like to [her]” (Id.); that Heft would “just come in while [she] was sleeping and take off [her] covers, and sometimes he would lay [sic] in bed and he would put his arm around [her] and start touching [her] breasts” (Id.). Initially, we note that S.W.‘s testimony about “multiple occasions” of abuse was not necessarily concerning other acts, as Heft was indicted and tried for multiple sexual abuse offenses. Additionally, we do not find that these minimal, vague references reached the extensive and pervasive nature of the testimony at issue in Shaw and Meador.
Assignment of Error No. VIII
{¶65} In his eighth assignment of error, Heft contends that he was deprived of effective assistance of counsel. Specifically, Heft argues that trial counsel was ineffective for failing to call as a witness S.W.‘s step-grandmother, who lived in the Heft household; for failing to admit into evidence documents from the hospital showing S.W.‘s stated reasons for overdosing on pills; for failing to object to hearsay statements made by Victoria Early; for failing to bring to the trial court‘s attention that the jury could be overheard discussing sentencing during deliberations; and, for failing to bring to the trial court‘s attention that Victoria Early‘s mother, Bridget Early, who sat by S.W. during sentencing, was the Logan County Law Librarian, who allegedly worked closely with the trial judge on a daily basis, and could have influenced the judge‘s sentencing decision and his ruling on Heft‘s motions for acquittal. We disagree that trial counsel was ineffective.
{¶66} An ineffective assistance of counsel claim requires proof that trial counsel‘s performance fell below objective standards of reasonable representation and that the defendant was prejudiced as a result. State v. Bradley (1989), 42 Ohio St.3d 136, paragraph two of syllabus. To show that a defendant has been prejudiced by counsel‘s deficient performance, the defendant must prove that there exists a reasonable probability that, but for counsel‘s errors, the outcome at trial would have been different. Id. at paragraph three of syllabus. “Reasonable probability” is a probability sufficient to undermine confidence in the outcome of the trial. State v. Waddy (1992), 63 Ohio St.3d 424, 433, superseded by constitutional amendment on other grounds as recognized by State v. Smith, 80 Ohio St.3d 89, 103, 1997-Ohio-355.
{¶67} Furthermore, the court must look to the totality of the circumstances and not isolated instances of an allegedly deficient performance. State v. Malone (1989), 2d Dist. No. 10564, 1989 WL 150798. “Ineffective assistance does not exist merely because counsel failed ‘to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it.‘” Id., quoting Smith v. Murray (1986), 477 U.S. 527.
{¶68} Heft first argues that trial counsel was ineffective for failing to call as a witness S.W.‘s step-grandmother, who lived in the household. This Court has previously held that “[t]he decision whether to call a witness is ‘within the rubric of trial strategy and will not be second-guessed by a reviewing court.‘” In re Walker, 3d Dist. Nos. 5-05-22 & 5-05-23, 2005 WL 3359125, ¶14, quoting State v. Williams, 99 Ohio St.3d 493, 2003-Ohio-4396. Here, the record provides no
{¶69} Next, Heft argues that trial counsel was ineffective for failing to object to Victoria Early‘s hearsay testimony that S.W. told her and Bridget Early that “she had something that she needed to tell [them] and was just repeating over and over again that she could never go back home” (trial tr., p. 120). However, admission of hearsay evidence may be harmless where the declarant was cross-examined on the same matters and the hearsay evidence was cumulative in nature. See State v. Abdullah, 10th Dist. No. 05AP-1316, 2006-Ohio-5412, ¶38; State v. Tomlinson (1986), 33 Ohio App.3d 278, 281. Here, S.W. testified during direct examination that she told Victoria and Bridget Early that Heft had abused her, and was subject to cross-examination on these statements. Accordingly, admission of these statements was harmless, and we do not find that, but for their admission,
{¶70} Finally, Heft contends that trial counsel was ineffective for failing to admit into evidence S.W.‘s hospital records; for failing to bring to the trial court‘s attention that the jury could be overheard discussing sentencing during deliberations; and, for failing to bring to the trial court‘s attention that Bridget Early was the Logan County Law Librarian and could have influenced the judge.
{¶71} It is well-settled that an appellate court may only consider evidence that was before the trial court in the proceeding being appealed from and was made part of the appellate record. Bank One Lima, N.A. v. Altenburger (1992), 84 Ohio App.3d 250, 256, citing Paulin v. Midland Mut. Life Ins. Co. (1974), 37 Ohio St.2d 109, 112. Thus, an appellate court may not make a decision based upon allegations founded upon facts outside of the record.
{¶72} Accordingly, we overrule Heft‘s eighth assignment of error.
Assignment of Error No. IV
{¶73} In his fourth assignment of error, Heft contends that he was prejudiced by the trial court‘s giving of the Howard charge to the jury after it
{¶74} Jury instructions are within the trial court‘s discretion. State v. Guster (1981), 66 Ohio St.2d 266, 271. Accordingly, a trial court‘s decision whether to give an instruction pursuant to State v. Howard (1989), 42 Ohio St.3d 18, is within its discretion, and this Court will not reverse that decision absent an abuse of discretion. State v. Thomas, 2d Dist. No. 2000-CA-43, 2001-Ohio-1353, citing State v. King, 7th Dist. No. 95 CA 163, 2000 WL 309393. An abuse of discretion connotes that the trial court‘s decision was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
{¶75} In Howard, the Supreme Court of Ohio expressly approved of the following supplemental instruction to be given to juries deadlocked on the question of conviction or acquittal:
The principal mode, provided by our Constitution and laws, for deciding questions of fact in criminal cases, is by jury verdict. In a large proportion of cases, absolute certainty cannot be attained or expected. Although the verdict must reflect the verdict of each individual juror and not mere acquiescence in the conclusion of your fellows, each question submitted to you should be examined with proper regard and deference to the opinions of others. You should consider it desirable that the
case be decided. You are selected in the same manner, and from the same source, as any future jury would be. There is no reason to believe the case will ever be submitted to a jury more capable, impartial, or intelligent than this one. Likewise, there is no reason to believe that more or clearer evidence will be produced by either side. It is your duty to decide the case, if you can conscientiously do so. You should listen to one another‘s arguments with a disposition to be persuaded. Do not hesitate to reexamine your views and change your position if you are convinced it is erroneous. If there is disagreement, all jurors should reexamine their positions, given that a unanimous verdict has not been reached. Jurors for acquittal should consider whether their doubt is reasonable, considering that it is not shared by others, equally honest, who have heard the same evidence, with the same desire to arrive at the truth, and under the same oath. Likewise, jurors for conviction should ask themselves whether they might not reasonably doubt the correctness of a judgment not concurred in by all other jurors.
42 Ohio St.3d at 25-26. We note that virtually the same instruction has been adopted by the Ohio Jury Instructions. See Ohio Jury Instructions (2008), Section CR 429.09(2).
{¶76} In formulating the Howard instruction, the Supreme Court of Ohio was “mindful of several competing factors when giving a supplemental instruction to a divided jury and attempted to accommodate those factors.” State v. Troglin, 3d Dist. No. 14-04-41, 2005-Ohio-6562, ¶46, citing Howard, 42 Ohio St.3d at 23-24. Particularly, the instruction may not isolate jurors holding the minority position and direct them to reconsider their positions. Id., citing Howard, 42 Ohio St.3d at 24. Additionally, the instruction may not coerce the jury by stressing that it must reach a verdict. Id. Moreover, through the instruction, the trial judge must
{¶77} Here, the trial court appropriately delivered the Howard instruction to the jury after it indicated that it could not reach a decision. We find no merit to Heft‘s argument that the Howard instruction is prejudicial and favors conviction over acquittal. The Supreme Court of Ohio and Ohio Jury Instructions have expressly approved of this instruction, finding it to be balanced, neutral, and uncoercive. Heft‘s arguments do not persuade us to the contrary.
{¶78} Accordingly, we overrule Heft‘s fourth assignment of error.
Assignment of Error No. III
{¶79} In his third assignment of error, Heft argues that his convictions for gross sexual imposition were against the manifest weight of the evidence. Specifically, Heft contends that the entire case was based on S.W.‘s unverified statements, and that S.W. was not credible because she lied to hospital staff about her attempted suicide, was inconsistent concerning the time frame during which she revealed the alleged abuse to Victoria and Bridget Early, and was mistaken about which year the Christmas Eve incident took place. Additionally, although not separately set forth, Heft argues that there was insufficient evidence to convict him of gross sexual imposition because the element of force was not demonstrated
{¶80} When an appellate court analyzes a conviction under the manifest weight standard it must review the entire record, weigh all of the evidence and all of the reasonable inferences, consider the credibility of the witnesses, and determine whether, in resolving conflicts in the evidence, the fact finder clearly 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, 1997-Ohio-52, superseded by state constitutional amendment on other grounds as stated in Smith, supra, quoting State v. Martin (1983), 20 Ohio App.3d 172, 175. Only in exceptional cases, where the evidence “weighs heavily against the conviction,” should an appellate court overturn the trial court‘s judgment. Id. Finally, we emphasize that the trial court is in the best position to weigh witness credibility, as it is “best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony.” In re Jane Doe I (1991), 57 Ohio St.3d 135, 138; Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80.
{¶81} Here, Heft is correct in his assertions that S.W.‘s accusations were not corroborated by physical evidence; that her testimony had some
{¶82} We next turn to whether insufficient evidence was presented to convict Heft of Count Three. When an appellate court reviews a record for sufficiency, the relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Monroe, 105 Ohio St.3d 384, 392, 2005-Ohio-2282, citing State v. Jenks (1991), 61 Ohio St.3d 259, superseded by state constitutional amendment on other grounds as stated in Smith, supra. Sufficiency is a test of adequacy, Thompkins, supra, and the question of whether evidence is sufficient to sustain a verdict is one of law. State v. Robinson (1955), 162 Ohio St. 486, superseded by state constitutional amendment on other grounds as stated in Smith, supra.
{¶83} Here, Heft contends that insufficient evidence was presented to demonstrate that he used force to commit gross sexual imposition as alleged in Count Three. Specifically, Heft contends that S.W. only testified that Heft
{¶84} Heft was convicted of gross sexual imposition in violation of
(A) No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more other persons to have sexual contact when any of the following applies:
(1) The offender purposely compels the other person, or one of the other persons, to submit by force or threat of force.
{¶85} The Revised Code defines “force” as “any violence, compulsion, or constraint physically exerted by any means upon or against a person or thing.”
{¶86} Here, Count Three indicted Heft for the incident occurring when the family resided at Reservoir Road from January 2001 until June 2004. On this occasion, S.W. testified that Heft came into her room, pulled her pants and underwear down, and attempted to kiss her near her vagina; that she pulled up her pants and underwear and lied down on her bed; that Heft came back into her room, pulled her covers off, and began kissing her body; that she attempted to keep her pants up, but Heft continued to kiss her and “succeeded in everything that he tried” (trial tr., p. 172); that she did not tell anyone about the incident because Heft threatened that, if anything happened to him, her mother and brother would be
{¶87} We find that, from S.W.‘s testimony, a jury could reasonably conclude that she resisted Heft‘s actions when he kissed her by attempting to keep her pants up, and that he physically and psychologically forced her to submit, particularly given their parent-child relationship and Heft‘s control over her. See Eskridge, supra. Thus, we find that sufficient evidence was heard to demonstrate that Heft used force to commit gross sexual imposition as alleged in Count Three.
{¶88} Accordingly, we overrule Heft‘s third assignment of error.
{¶89} Having found no error prejudicial to the appellant herein, in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
PRESTON, P.J. and WILLAMOWSKI, J., concur.
/jlr