State v. HornState v. Horn
Case Information
*1
[Cite as
State v. Horn
,
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY
State of Ohio Court of Appeals No. WD-16-053
Appellee Trial Court No. 2015CR0474 v.
Michael C. Horn DECISION AND JUDGMENT Appellant Decided: March 2, 2018 * * * * *
Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Assistant Prosecuting Attorney, for appellee.
Neil S. McElroy, for appellant.
* * * * *
OSOWIK, J.
This is an appeal from a judgment of the Wood County Court of Common Pleas which, following a jury trial, found appellant guilty of six counts of rape with sexually violent predator specifications. For the reasons set forth below, this court affirms the judgment of the trial court. *2 Appellant, Michael C. Horn, was the 40 year old step-father and step-uncle
to the two victims, S.M. and J.M., respectively, who were 13 to 14 years old at the times
of the rapes. S.M. and J.M. are first cousins. On November 10, 2015, the Wood County
prosecutor filed six bills of information against appellant: (Count 1) rape of S.M., in
violation of
pursuant to
which appellant filеd his appeal on October 17, 2016. Appellant sets forth five assignments of error:
I. The admission of other-acts testimony violated Mr. Horn’s right to a fair trial, as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution, and Section 16, Article I of the Ohio Constitution.
II. Application of the rape-shield law resulted in a deprivation of Mr. Horn’s constitutional rights to confront and cross-examine witnesses, his right to present a defense, and his right to a fair trial and due process of law, in violation of the U.S. Constitution’s Fifth, Sixth, and Fourteenth Amendments and Article I, Sections 10 and 16 of the Ohio Constitution. III. Mr. Horn’s conviction under the Sexually Violent Predator specification is against the manifest weight of the evidence.
IV. Thе trial court abused its discretion when it permitted a
counselor to testify regarding Asperger’s syndrome in violation of
V. Mr. Horn’s convictions for violations of R.C. Sec.
2907.02(A)(1)(c) are not supported by legally sufficient evidence.
Appellant’s first, second and fourth assignments of error question the
admissibility of evidence by the trial court and will be addressed together. We review a
trial court’s decision to admit or exclude evidence for abuse of discretion.
State v.
Richardson
, 6th Dist. Lucas No. L-07-1214,
appellee must prove beyond a reasonable doubt that appellant violated
No person shall engage in sexual conduct with another who is not the spouse of the offender * * * when * * * (c) The other person’s ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age, and the offender knows or has reasonable cause to believe that the other person’s ability to resist or consent is substаntially impaired because of a mental or physical condition or because of advanced age.
{¶ 9}
In order for the jury to find appellant guilty of rape in Counts 2, 4 and 6,
appellee must prove beyond a reasonable doubt that: “No person shall engage in sexual
conduct with another when the offender purposely compels the other person to submit by
force or threat of force.”
offender.
contained all of the relevant definitions associated with the elements of these crimes.
Admissibility – “Other Acts” Evidence The focus of appellant’s first assignment of error are Counts 1 through 4
for the rapes of S.M. Appellant argues
because uncharged sex crimes against the same victim by the same defendant are not
subject to exclusion under
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, prepаration, plan, knowledge, identity, or absence of
mistake or accident. In criminal cases, the proponent of evidence to be
offered under this rule shall provide reasonable notice in advance of trial, or
during trial if the court excuses pretrial notice on good cause shown, of the
general nature of any such evidence it intends to introduce at trial.
Evidence of other acts may be used to show appellant is the actual
individual who committed those offenses to establish a behavioral fingerprint to identify
*7
him as the perpetrator through the characteristics of the acts rather than through his
character traits.
Richardson
, 6th Dist. Lucas No. L-07-1214,
shows the first two rape convictions (Counts 1 and 2) involved digital penetration of S.M.’s vagina and stimulating her clitoris while she was asleep, when she was a ninth grader. The third and fourth rape convictions (Counts 3 and 4), also when S.M. was a ninth grader, involved digital penetration of her vagina and stimulating her clitoris followed by the insertion and use of sex toys in her vagina and anus while awake. In each instance S.M. was alone with the appellant at the home they shared and in a situation where she felt helpless and could not stop the rape. After each rape S.M. felt *8 ashamed and isolated from her family, friends and teachers because “no one believed” her, and no one stopped appellant, even when she did tell adults. S.M. came to fear appellant. S.M.’s mother testified she observed appellant yell at S.M., and on one occasion it was “beyond normal dad behavior.”
{¶ 18} The record also shows testimony regarding the following other acts evidence was discussed by S.M. and corroborated by one or more other witnesses. At trial S.M. testified to three separate events while an eighth grader: 1) appellant ordered her to drop her pants and panties and spanked her bare bottom and demanded she count the spanks and thank him for them; 2) appellant offered to shave her pubic hair; and 3) appellant gave her a birds-and-bees talk that involved appellant using his personal copy of the “Kama Sutra,” which she described as “the Indian book on sex positions” with graphic pictures. At trial S.M. testified to two separate events while a ninth grader: 1)
appellant ordered her to drop her pants and panties and he examined her vagina and
clitoris with his tongue and fingers to make sure she’s “not ripped up” and then examined
her anus with his finger covered in Vaseline; and 2) while appellant wore boxer shorts
and had a partial erection, he grabbed her hand to put it over his penis to demonstrate “he
was too big for me and that if he would have raped me, it would have tore me up.”
Grooming is the process by which appellant took deliberate actions to
expose S.M. to sexual material and to sexual behaviors to prepare S.M. for sexual
activity.
State v. Williams
,
Relevant evidence is generally admissible, while irrelevant evidence is inadmissible.
which states:
Exclusion mandatory. Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury.
Admissibility – “Rape Shield” Evidence Appеllant next argues Ohio’s rape-shield law must yield to his Sixth
Amendment right to confront the witnesses against him. The focus of appellant’s second assignment of error are, again, Counts 1 through 4 for the rapes of S.M. Appellant argues he should have been able to introduce evidence of S.M.’s sexual activity with her teenage boyfriend to show that she had a reason to fabricate the allegations against appellant. Appellant argues S.M’s reason to fabricate was in response to her mother and appellant forbidding S.M. from seeing her boyfriend. S.M.’s parents were divorced and shared custody of her. Appellant argues S.M. wanted to move in full-time with her biological father for his “relаxed” parenting standards. *11 In response appellee argues the trial court did not abuse its discretion
because the purpose and spirit of the rape shield law is intended for precisely the facts in this case. Ohio’s rape shield law states in part as follows:
Evidence of specific instances of the victim’s sexual activity, opinion evidence of the victim’s sexual activity, and reputation evidence of the victim’s sexual activity shall not be admitted under this section unless it involves evidence of the origin of semen, pregnancy, or disease, or the victim’s past sexual activity with the offender, and only to the extent that the court finds that the evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value.
specific instances of S.M.’s sexual activity, opinion evidence of S.M.’s sexual activity, or
reputation evidence of S.M.’s sexual activity for any allowable reason. Appellant did not
seek to introduce evidence of the origin of semen, pregnancy, or disease, or S.M.’s past
sexual activity with appellant, which are the limited allowances by statute. Appellant
sought to attack S.M.’s credibility by providing a reason to fabricate the allegations
against appellant. “Evidence of sexual activity offered merely to impeach the credibility
of the witness is not material to a fact at issue in the case and must be excluded.”
State v.
*12
Ector
, 6th Dist. Lucas No. L-07-1169,
about her motives to fabricate her rape claims against appellant, including references to
S.M.’s boyfriend, and S.M. answered each question. Perhaps S.M.’s answers did not
support appellant’s defense theory, but the application of the rape shield law did not
deprive appellant of material evidence to a fact at issue nor deny testimony that was more
probative than prejudicial.
State v. Coffey
, 6th Dist. Lucas No. L-12-1047, 2013-Ohio-
3555, ¶ 24. We find the fact that appellant confronted S.M. through appropriate,
meaningful cross-examination confirmed there was no violation of the Confrontation
Clause.
State v. Craig
,
meaningful cross-exаmination of S.M. and her biological parents regarding the alleged motive of “relaxed” parenting standards. S.M. testified that in contrast to her step-father *13 “my dad, he gives me – at some point he gives me a chance to express my opinion, tell him yes or no, and he’ll actually listen to me.” S.M.’s dad testified S.M. “was pretty honest with me because I always kind of had a really good relationship with that.” S.M.’s mom testified she can think of nothing that would motivate both S.M. and J.M. to fabricate the rape allegations against appellant. We find the trial court did not act unreasonably, arbitrarily or
unconscionably and did not abuse its discretion regarding the inadmissibility of evidence under the rape shield law. Appellant’s second assignment of error is not well-taken.
Admissibility – “Asperger’s Syndrome” Evidence Appellant next argues the trial court abused its discretion by admitting
irrelevant testimony from J.M.’s school counselor about Asperger’s syndrome “for no purpose other than to unfairly prejudice the defendant and mislead the jury.” Appellant argues “there was no other evidence that the victim of counts 5 and 6 [J.M.] was suffering any substantial impairment because of a mental or physical condition.” As a result, appellant argues he did not receive a fair trial. In response appellee argues the trial court did not abuse its discretion
because the school counselor’s testimony was from her personal experience with her own
foster children diagnosed with Asperger’s syndrome, which was relevant evidence under
the victim’s ability, either to appraise the nature of his conduct or to control his conduct.”
State v. Zeh
,
“counselor to identify the telltale signs of sexual abuse or physical abuse” in addition to “extensive training” due to being a therapeutic foster parent to special needs children for 20 years. Sоme of her special needs foster children had Asperger’s syndrome, which she described as a disorder where the person is socially awkward and does not know how to evaluate a social situation. The school counselor did not provide an opinion about J.M. and Asperger’s syndrome. The school counselor testified a teacher referred J.M. to her because the teacher was concerned with J.M.’s grades dropping, poor hygiene, and her transformation into a withdrawn and untalkative girl. J.M. eventually told the school counselor about appellant forcing her to perform fellatio and “family members that were angry that didn’t want her to tell.” The school сounselor testified after J.M.’s disclosure she did not see improvement in her grades, hygiene or stress “because this was an ongoing situation * * * there wasn’t a resolution for her to have an end to it.” We find the trial court did not act unreasonably, arbitrarily or unconscionably and did not abuse its discretion regarding the admissibility of J.M.’s school counselor testimony. Appellant’s fourth assignment of error is not well-taken.
Manifest Weight
{¶ 39} In support of his third assignment of error, appellant argues appellee failed to meet its burden of proving beyond a reasonable doubt that appellant is a sexually violent predator. Appellant argues the expert testimony was inconclusive for determining recidivism with any certainty and at best was “very low.” In response appellee argues appellant argues there was no miscarriage of
justice by the trial court, and the trial court’s determination of the weight and credibility of the evidence must be accorded due deference. “A challenge to the weight of the evidence questions whether the greater
amount of credible evidence was admitted to support the judgment than not.”
Flowers v.
Siefer
, 6th Dist. Lucas No. L-16-1002,
weight should be given to the testimony of any witness, including experts.
Kokitka v.
*17
Ford Motor Co.
,
January 1, 1997, commits a sexually violent offense and is likely to engage in the future
in one or more sexually violent offenses.”
2907.02(A)(2) are by definition “sexually violent offenses.” Appellant’s offenses
occurred after January 1, 1997. The remaining issue for the trier of fact was the
*18
determination if appellant “is likely to engage in the future in one or more sexually
violent offenses.” That determination must be proven by appellee beyond a reasonable
doubt.
State v. Williams
,
relevant, material, and competent evidence” in arriving at its sexually violent predator
judgments unless it affirmatively appears to the contrary.
State v. Arnold
, 147 Ohio St.3d
138,
six factors to the trier of fact it “may” consider “as evidence tending to indicate that there
is a likelihood that a person will engage in the future in one or more sexually violent
offenses.”
court’s subsequent journal entry, each confirm the trial court considered all of the
*19
evidence and also specifically considered the
{¶ 49} The trial court ultimately reached its verdict and stated in the judgment entry journalized September 8, 2016:
Specifically, the Court finds the facts of the current offenses – that Defendant committed multiple sexually violent offenses over a period of sixteen months, with two juvenile victims around the age of fourteen, both with a familial relationship to the Defendant – demonstrate Defendant is likely to engage in the future one or more sexually violent offenses. We reviewed the entire record in this case and do not find the trial court
lost its way or created a manifest miscarriage of justice in determining appellant’s guilt beyond a reasonable doubt for each sexually violent predator specification. We will not disturb the trial court’s findings. Appellant’s fourth assignment of error is not well-taken.
Sufficiency of Evidence In support of his fifth assignment of error, appellant argues appellee failed
to produce legally sufficient evidence to support the convictions. Appellant argues there
*20
was insufficient evidence that S.M. (in Counts 1 and 3) and J.M. (in Count 5) were
substantially impaired by a physical or mental condition pursuant to
evidence regarding substantial impairments of the victims and known by appellant: “In one instance, the victim was asleep during the rape. In another rape, the victim was low functioning. In another rape, the disparity of power in the familial relationship caused the substantial impairment.” No expert testimony was required. Appellee argues the jury was the trier of fact and rationally determined, after viewing the evidence in a light most favorable to the prosecution, the essential elements of the crimes were proven beyond a reasonable doubt. Our role in reviewing a сhallenge to the sufficiency of the evidence is
whether, after reviewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crimes beyond a
reasonable doubt.
State v. Beasley
,
asleep, her body relaxed, following appellant’s massaging of her upper body around bed time, and when she awoke appellant’s fingers were inside her vagina.
Q: When you were asleep, were you able to resist or consent with what Mike was doing to you?
A: No.
Q: Again, that was why?
* * *
A: Because I was asleep at that point.
Contrary to appellant’s assertions, this court has addressed the issue of
sleep as a “substantial impairment.” “A jury can reasonably conclude that the defendant
knew the victim was substantially impaired and unable to object to the defendant’s
conduct if there was evidence that the victim was in a state of deep sleep or drunkenness.
*22
State v. Anderson
, 6th Dist. Wood No. WD-04-035,
determination as to S.M.’s ability to resist or consent and being substantially impaired
because of a mental or physical condition of which appellant knew or should have
known. Using the test of sufficiency, we find any rational trier of fact could have found
evidence supporting the four essential elements of the violation of
testified how she felt helpless to stop the rape by her step-father. While Count 3 was occurring, S.M. was afraid of appellant’s temper and was resigned to the helplessness of a child who expected no adult would believe her about what her step-father did to her. S.M.’s testimony included statements such as, “I felt if I didn’t do [what he commanded], he was going to do it anyways,” and “[my step-father] gets these very stern looks on is face every time that you challenge him. When he has that look, it does not go well. * * * If I would disobey him, he would definitely start yelling [and I’d be afraid he would hurt me or my mother].” S.M. further testified, “I figured nobody would end up believing me. And if I told my mom she would have ended up asking him about it, he would have denied it, and she wouldn’t believe me.” Upon further questioning, S.M. explained how she coped.
Q: What was going through your head as all of this was happening [the Count 3 and 4 rapes]?
A: I tried to block everything that was going on out of my head. Q: How did you manage that?
A: I ended up just staring off to the side.
Q: Did you find something to look at?
A: I ended up looking at my mother’s jewelry box.
The record includes evidence from which the jury can reach its own
determination as to S.M.’s ability to resist or consent being substantially impaired
because of a mental or physical condition of which appellant knew or should have
known. Using thе test of sufficiency, we find any rational trier of fact could have found
evidence supporting the four essential elements of the violation of
“Uncle Mike” also gave her a birds-and-bees talk when she was either 13 or 14 years old and showed her a video using his computer with “people doing anal sex.” J.M. was uncomfortable having appellant give her that talk rather than her mother. Then soon after J.M. turned 14 years old, she was at appellant’s house to spend the night, which was a frequent, necessary occurrence due to transportation arrangements for her to get to school. That night she was not yet asleep, and appellant came to her room. He told her to come with him to another bedroom where they were alone. He removed his boxer *24 shorts and guided her mouth to his penis for fellatio. She felt she had no choice but to obey appellant “because he was family.” Many witnesses described J.M. as “low functioning.” J.M. testified she was scared and tried to cope with the situation by “shutting down.”
Q: What was going through your head when that happened? A: At that time my brain was starting to shut down as I was getting scared and creeped out. * * * I was really scared, and I really didn’t know what to do. The record includes evidence from which the jury can reach its оwn
determination as to J.M.’s ability to resist or consent being substantially impaired because
of a mental or physical condition of which appellant knew or should have known. Using
the test of sufficiency, we find any rational trier of fact could have found evidence
supporting the four essential elements of the violation of
this matter and the judgment of the trial court to be lawful. The judgment of the Wood
County Court of Common Pleas is affirmed. Appellant is ordered to pay costs of this
appeal pursuant to
Judgment affirmed.
*25
WD-16-053
State of v. Horn
A certified copy of this entry shall constitute the mandate pursuant to
See also
6th Dist.Loc.
Mark L. Pietrykowski, J. _______________________________ JUDGE Arlene Singer, J.
_______________________________ Thomas J. Osowik, J. JUDGE CONCUR.
_______________________________ JUDGE