Case Information
*1
[Cite as
State v. Hill
,
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. Sheila G. Farmer, P.J.
: Hon. W. Scott Gwin, J.
Plaintiff-Appellee : Hon. John W. Wise, J.
:
-vs- :
: Case No. 2015CA00077 VINCENT THEODORE HILL :
:
Defendant-Appellant : O P I N I O N CHARACTER OF PROCEEDING: Criminal appeal from the Stark County
Court of Common Pleas, Case No. 2014CR2026(A) JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 1, 2016 APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant JOHN D. FERRERO KRISTINE BEARD Stark County Prosecutor 4450 Belden Village Street N.W.
BY RONALD MARK CALDWELL Suite 703
110 Central Plaza South, Ste. 510 Canton, OH 44718 Canton, OH 44702-1413
[Cite as
State v. Hill
,
Gwin, J. Appellant Vincent Hill (“Hill”) appeals his convictions and sentences after a
jury trial in the Stark County Court of Common Pleas on one count of rape in violation of R.C. 2907.02(A)(2) and one count of sexual battery in violation of R.C. 2907.03(A)(5).
Facts and Procedural History On February 12, 2014, E.C., the 20-year-old daughter of Tracella Lou Hill (hereinafter "Tracella"), reported her tires being slashed to the Canton Police Department. After making this report, she then told the police that she had something else to report — that her stepfather, Hill had been raping her since the age of sixteen. As a result, a Canton police officer was dispatched to E.C.’s residence in order to interview the young woman and take a written statement. In this statement, E.C. told the police that Hill had been raping her during a two-year period, during the time she was 16-18 years old, and that her mother had once walked in on them during one of these rapes, and had merely told her daughter to leave the room without reporting the abuse to authorities. At trial E.C. testified Hill would come into her bedroom in their cramped
apartment, put his hand over her mouth, and order her to be quiet,
A. He would creep into my room at night. I was asleep. He would be very intoxicated; the smell of whiskey is strong, strong on his breath. He, he would move his hand up my shirt. When I woke up to realize what he was doing, I asked him, What are you doing. [sic.]
* * *
I became very scared and asked him what he was doing. He covered my mouth and he told me if I said a word that he would hurt me.
Q. Okay. Did you believe that he would hurt you?
A. Yes, I did 1T.at 23-24. E.C. further testified that she believed her stepfather's threats because she had witnessed him being verbally and physically abusive towards her mother on multiple occasions, and she thus "truly believed that he would take [her] life if [she] said anything." E.C. also noted that there were multiple firearms in the cramped residence. 1T.at 26-27. The residence was a one-bedroom apartment that housed six people. Hill and Tracella shared the sole bedroom, while E.C. and her sister slept in the living room- dining room area, which was separated by stacked dressers and a curtain. Hill would come into E.C.'s "bedroom" by walking directly behind the foot of her little sister's bed and opening the curtain that partitioned their "rooms." He would then lay down on E.C.’s queen-size bed and begin threatening and raping her. E.C. testified that she would try to fight her stepfather off by pushing him, scratching him, and pulling his hair.
At trial, E.C. testified that the sexual conduct was vaginal intercourse, Q. Okay. [E.C.], when you say rape, specifically what kind of sexual activity are you talking -bout?
A. He would cover my mouth and told me if I screamed that it would be the end of me and he threatened my whole family if I said anything. Q. Okay.
A. He forcefully took advantage of me that - - Q. Okay.
A. - - all those times.
Q. Are you talking about vaginal intercourse?
A. Yes.
Q. Okay. Erin, were you ever concerned that you would get pregnant?
A. No.
Q. And why is that?
A. To my knowledge he would always pull out. I would feel it on my sheets.
1T. at 30-31. During cross-examination, Hill asked about a rape that occurred in
November of 2013, inquiring whether she had a shirt on then and whether "there was vaginal intercourse on that time." E.C. replied that there had been. 1T.at 59. All of these rapes over the years took place in E.C.'s "bedroom," but one. On
one occasion, Hill came and got his stepdaughter, leading her to her parents' bedroom and bed. As Hill started to undress E.C. and start to rape her, Tracella walked in on them with a flashlight. Tracella asked what was going on, and Hill froze. Being so heavily intoxicated, however, he just rolled off E.C. Tracella then told her daughter to leave, so E.C. went to the bathroom and got into the bathtub, where she sat and cried until her mother came and got her. Tracella, who had already been convicted of child endangering by the time
of trial, testified that she had had suspicions about Hill and E.C., but did not witness anything personally. [1] Tracella did admit that she had walked in on Hill and E.C. once when she had went to her bedroom with a flashlight, but only saw the two under the covers. Tracella then retreated and left the room, only to see her daughter shortly after run from the room in tears. According to Tracella, she attempted to find out what was wrong, but both her daughter and her husband would not talk to her. Finally, Tracella testified that she had been under a lot of pressure to testify, and that this pressure was from associates of Hill. 1T.at 79-84; 106.
{¶8} After turning 19 years old, E.C. made a determined effort to leave the apartment. She had her suitcase packed and was ready to head out the door when Hill confronted her,
I had my bags packed beside me ready to leave. I told my mother and Vince I couldn't be there no more. I was working. I was of legal age. I had a safe place to go. I was ready to go. Vince became extremely angry and went to the bedroom and retrieved a 9-millimeter handgun that was shot at my feet and said if I walked out that door that both me and my fiancée would both be dead.
1T.at 70. Tracella was present in the kitchen during this incident and witnessed this
shooting, but did not call the police on her husband 1T.at 70. After the disclosure to police, C.C., E.C.'s stepsister and Hill's biological
daughter, talked with Tracella what was going on with E.C. During this conversation, Tracella admitted that she had walked in while Hill was in bed with E.C. 1T. at 112-113. With this information, Canton Detective Jerry Fuelling investigated E.C.'s allegations. As part of this investigation, he conducted a recorded interview of E.C. In addition, he also had E.C. make a phone call to her mother that was recorded. No physical evidence was seized for testing purposes. 1T. at 116.
{¶12} Hill testified in his defense at trial. He denied having any sex with E.C. 1T.at 132, 135. He surmised that the allegations arose because he disagreed with her choice of boyfriend. 1T.at 132- 133; 137. In addition, Hill testified that E.C. would often crawl into bed with him if she were sick or scared. 1T.at 134.
{¶13} The jury found Hill guilty on all counts of the indictment. The trial court sentenced Hill to serve 10 years on the rape conviction and 12 months on the sexual battery conviction. The trial court merged the sentences giving Hill an aggregate term of 10 years.
Assignments of Error
{¶14} Hill raises five assignments of error,
{¶15} “I. APPELLANT'S CONVICTIONS FOR RAPE AND SEXUAL BATTERY ARE AGAINST THE SUFFICIENCY OF THE EVIDENCE.
{¶16} “II. THE PROSECUTOR COMMITTED PLAIN ERROR IN THE CLOSING ARGUMENT BY ARGUING FACTS NOT IN EVIDENCE. “III. DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT
TO STATE'S CLOSING ARGUMENT WHICH STATED FACTS NOT IN EVIDENCE. “IV. THE JURY'S VERDICT FOR RAPE AND SEXUALLY BATTERY AND THE TRIAL COURT'S FINDING THAT APPELLANT IS A TIER III SEX OFFENDER ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. “V. THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A
MAXIMUM SENTENCE FOR RAPE.”
I. & IV. {¶20} Hill’s first and fourth assignments of error raise common and interrelated issues; therefore, we will address the arguments together. In his first assignment of error, Hill contends his convictions are against the
manifest weight of the evidence produced by the state at trial. In his fourth assignment of error, Hill challenges the sufficiency of the evidence. Our review of the constitutional sufficiency of evidence to support a criminal
conviction is governed by Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979), which requires a court of appeals to determine whether “after viewing
the evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” Id.; see also
McDaniel v. Brown ,
that the verdict is against the weight of the evidence, the appellate court sits as a
“’thirteenth juror’” and disagrees with the fact finder’s resolution of the conflicting
testimony. Id. at 387,
“[I]n determining whether the judgment below is manifestly against the weight of the evidence, every reasonable intendment and every reasonable presumption must be made in favor of the judgment and the finding of facts.
* * *
“If the evidence is susceptible of more than one construction, the reviewing court is bound to give it that interpretation which is consistent with the verdict and judgment, most favorable to sustaining the verdict and judgment.”
Seasons Coal Co., Inc. v. Cleveland ,
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. Penetration however slight is sufficient to complete vaginal or anal intercourse." R.C. 2907.01. In order to sustain a conviction on rape charges predicated on either vaginal
or anal intercourse, the state is required to establish beyond a reasonable doubt that the
accused and the victim actually engaged in vaginal or anal intercourse. Under R.C.
2907.01(A) the state must establish vaginal or anal intercourse by establishing the
slightest degree of penetration. State v. Ferguson ,
is commonly used, has a clear meaning, to-wit, “the act of having sex: vaginal/anal intercourse.” [2] The victim was a twenty-year old female at the time of trial who clearly understands the meaning of “vaginal intercourse” as involving penetration. See State v. Bell , 12th Dist. No. CA99–07–122, 2001 WL 432737, * 8 (Apr. 30, 2001) (“vaginal intercourse” occurs “when the penis is inserted into the vagina”). Further, in the case at bar, E.C. testified that Hill “would always pull out.” Viewing the evidence in a light most favorable to the prosecution, we
conclude that a reasonable person could have found beyond a reasonable doubt that Hill committed the crimes of rape and sexual battery. We hold, therefore, that the state met its burden of production regarding each element of the crime of rape and sexual battery and, accordingly, there was sufficient evidence to support Hill’s convictions. As an appellate court, we are not fact finders; we neither weigh the evidence
nor judge the credibility of witnesses. Our role is to determine whether there is relevant,
competent and credible evidence, upon which the fact finder could base his or her
judgment. Cross Truck v. Jeffries , 5th Dist. Stark No. CA–5758,
appellee provided the more believable evidence, but must not completely substitute its
judgment for that of the original trier of fact ‘unless it is patently apparent that the fact
finder lost its way.’” State v. Pallai , 7th Dist. Mahoning No. 07 MA 198,
are issues for the trier of fact. State v. DeHass ,
evidence offered by the parties and assess the witness’s credibility. "While the jury may
take note of the inconsistencies and resolve or discount them accordingly * * * such
inconsistencies do not render defendant's conviction against the manifest weight or
sufficiency of the evidence." State v. Craig , 10th Dist. Franklin No. 99AP-739, 1999 WL
29752 (Mar 23, 2000) citing State v. Nivens , 10th Dist. Franklin No. 95APA09-1236, 1996
WL 284714 (May 28, 1996). Indeed, the jury need not believe all of a witness' testimony,
but may accept only portions of it as true. State v. Raver , 10th Dist. Franklin No. 02AP-
604,
heavily against the conviction.’” Thompkins , 78 Ohio St.3d at 387, 678 N.E.2d 541,
quoting Martin ,
{¶35} Based upon the foregoing and the entire record in this matter, we find Hill's convictions are not against the sufficiency or the manifest weight of the evidence. To the contrary, the jury appears to have fairly and impartially decided the matters before them. The jury as a trier of fact can reach different conclusions concerning the credibility of the testimony of the state’s witnesses and Hill. This court will not disturb the trier of facts finding so long as competent evidence was present to support it. State v. Walker , 55 Ohio St.2d 208, 378 N.E.2d 1049 (1978). The jury heard the witnesses, evaluated the evidence, and was convinced of Hill's guilt.
{¶36} Finally, upon careful consideration of the record in its entirety, we find that there is substantial evidence presented which if believed, proves all the elements of the crimes of rape and sexual battery beyond a reasonable doubt. Hill’s first and fourth assignments of error are overruled.
II.
Hill's second assignment of error alleges prosecutorial misconduct in the
closing arguments portion of the trial. Hill specifically argues that the prosecutor
commented on matters for which there was no evidence, i.e., vaginal intercourse.
Hill concedes that he did not object to the comments that he now assigns
as error. In criminal cases where an objection is not raised at the trial court level, “plain
error” is governed by Crim. R. 52(B), which states, "Plain errors or defects affecting
substantial rights may be noticed although they were not brought to the attention of the
court." An alleged error "does not constitute a plain error ... unless, but for the error, the
outcome of the trial clearly would have been otherwise." State v. Long ,
only where the appellant demonstrates that (1) there is an error; (2) the error is clear or
obvious, rather than subject to reasonable dispute; (3) the error affected the appellant’s
substantial rights, which in the ordinary case means it affected the outcome of the district
court proceedings; and (4) the error seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” United States v. Marcus ,
State v. Liberatore ,
prosecutor's comment that Hill had engaged in vaginal intercourse with his daughter by putting his penis inside her vagina. Hill contends that because no evidence of penetration was presented the comments are a material misrepresentation of an essential element that must be proven beyond a reasonable doubt and therefore rise to the level of plain error. As we discussed in our disposition of Hill’s first and fourth assignments of
error supra, the victim’s testimony that Hill engaged in “vaginal intercourse” and would “always pull out” were sufficient in this case to prove “penetration.” The prosecutor's comments, therefore, were a fair statement of the evidence presented at trial, and did not constitute misconduct that denied Hill a fair trial. Hill has therefore failed to meet his burden of demonstrating prosecutorial misconduct. Hill’s second assignment of error is overruled.
III. {¶46} In his third assignment of error, Hill alleges ineffective assistance of counsel. He specifically argues that his trial counsel was ineffective for failing to object to the prosecutor's closing argument for commenting on matters for which there was no evidence, i.e., the lack of any evidence as to vaginal intercourse.
{¶47}
A claim of ineffective assistance of counsel requires a two-prong analysis.
The first inquiry is whether counsel's performance fell below an objective standard of
reasonable representation involving a substantial violation of any of defense counsel's
essential duties to appellant. The second prong is whether the appellant was prejudiced
by counsel's ineffectiveness. Lockhart v. Fretwell , 506 U.S. 364, 113 S.Ct. 838, 122
L.Ed.2d 180(1993); Strickland v. Washington ,
meaning his errors are “so serious” that he no longer functions as “counsel,” and
prejudicial, meaning his errors deprive the defendant of a fair trial. Maryland v. Kulbicki,
of Hill's conduct with his stepdaughter was vaginal intercourse. Therefore, trial counsel was not ineffective for failing to object to the prosecutor's comments regarding vaginal intercourse, and the assignment of error is without merit. Hill’s third assignment of error is overruled.
V. In his fifth assignment of error, Hill challenges the trial court's imposition of the maximum sentence for his rape conviction. He argues that the record did not support the imposition of the maximum sentence for his rape conviction in this case, and that the trial court did not consider the purposes and principles of sentencing or any mitigating factors in imposing the maximum sentence. The trial court sentenced Hill to serve 10 years on the rape conviction and
12 months on the sexual battery conviction. The trial court merged the sentences giving
Hill an aggregate term of 10 years.
The two-step approach set forth in State v. Kalish ,
Ohio-4912, 896 N.E.2d 124 no longer applies to appellate review of felony sentences.
State v. Tammerine , 6th Dist. Lucas No. L–13–1081, 2014–Ohio–425, ¶10; State v.
Wellington , 7th Dist. Mahoning No. 14 MA 115,
R.C. 2953.08. Howell, 5th Dist. Stark No. 2015CA00004,
{¶56} R.C. 2929.12 lists general factors that must be considered by the trial court in determining the sentence to be imposed for a felony, and gives detailed criteria which do not control the court’s discretion but which must be considered for or against severity or leniency in a particular case. The trial court retains discretion to determine the most effective way to comply with the purpose and principles of sentencing as set forth in R.C. 2929.11. R.C. 2929.12. Under R.C. 2929.11(A), the “overriding purposes” of felony sentencing are
to protect the public from future crime by the offender and others and to punish the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources. To achieve these purposes, the sentencing court shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both. R.C. 2929.11(A). Among the various factors that the trial court must consider and balance
under R.C. 2929.12 are: (1) serious physical, psychological, or economic harm to the victim as a result of the offense; (2) whether the offender has a history of criminal convictions; (3) whether the offender has not responded favorably to sanctions previously imposed by criminal convictions; and (4) whether the offender shows genuine remorse for the offense. R.C. 2929.12. R.C. 2929.11 and 2929.12 require consideration of the purposes of felony
sentencing, as well as the factors of seriousness and recidivism. See State v. Mathis, 109
Ohio St.3d 54,
[Sections] 2929.11 and 2929.12 [of the Ohio Revised Code], it is presumed that the trial
court gave proper consideration to those statutes.” (Alterations sic.) State v. Steidl, 9th
Dist. Medina No. 10CA0025–M, 2011–Ohio–2320, ¶ 13, quoting State v. Kalish, 120 Ohio
St.3d 23,
that he considered the purposes of felony sentencing, as well as the factors of
seriousness and recidivism. In his assignment of error, Hill makes no other claim and
points to no mitigating evidence in the record to support his contention that the trial court
abused its discretion in sentencing him. An abuse of discretion means more than an error
of judgment; it implies that the court's attitude is unreasonable, arbitrary or
unconscionable. State v. Adams,
a two-year period. We find the sentencing court did not abuse its discretion in sentencing Hill to the maximum sentence. Hill’s fifth assignment of error is overruled. For the foregoing reasons, the judgment of the Richland County Court of
Common Pleas, Richland County, Ohio is affirmed.
By Gwin, J.,
Farmer, P.J., and
Wise, J., concur
Notes
[1] See, State v. Hill, 5th Dist. Stark No. 2015CA00074.
[2] Cambridge Dictionaries Online, http//dictionary.cambridge.org/dictionary/english (accessed Jan. 19, 2016).