STATE OF OHIO v. EVERETTE E. HOWARD
Appellate Case No. 26360
IN THE COURT OF APPEALS OF OHIO, SECOND APPELLATE DISTRICT, MONTGOMERY COUNTY
Rendered on the 25th day of September, 2015.
[Cite as State v. Howard, 2015-Ohio-3917.]
Attorneys for Plaintiff-Appellee
WILLIAM O. CASS, JR., Atty. Reg. No. 0034517, 135 West Dorothy Lane, Suite 209, Kettering, Ohio 45429
Attorney for Defendant-Appellant
. . . . . . . . . . . . .
FAIN, J.
{¶ 1} Defendant-appellant Everette Howard appeals from his conviction and
{¶ 2} We conclude there is evidence in the record that, if believed, establishes the elements of each crime charged. We further conclude that the convictions are not against the manifest weight of the evidence. Accordingly, the judgment of the trial court is Affirmed.
I. The Offenses
{¶ 3} The victim, K.R., was born in December 2000 to Mother and Father. The parents divorced on June 23, 2010. Father has a sister, L.R. Howard and L.R. have been in a relationship during all times relevant hereto. The partiеs stipulated that L.R. leased an apartment on “Walnut Street”1 in Riverside from August 1, 2008, to August 3, 2009. This residence was a single-story, one-bedroom apartment. The parties further stipulated that from August 1, 2009 to September 2, 2010, L.R. leased a two-story, two-bedroom apartment on “Elm Street” in Riverside. The record contains a stipulation that L.R. leased a house on “Maple Street” in Huber Heights from August 19, 2010 until August 31, 2011. Finally, the parties stipulated that L.R. leased an apartment on “Oak Street” in Riverside from September 2, 2011 to June 3, 2013. Howard lived with L.R. at each of these residences.
{¶ 4} K.R. had a close relationship with L.R. and Howard, and would spend time,
{¶ 5} The first time that Howard touched K.R. was at the “Elm Street” apartment during the summer. K.R. had spent the night at the apartment. When she awoke, her aunt had left to go to work, and K.R. was alone in the bed with Howard, who was looking at her. After Howard said “good morning,” he pulled K.R. on top of him, grabbed her by the hips, and forced her to “pump” him while he rubbed his penis against her vagina. Tr. p. 320. K.R. was clothed, and Howard was wearing boxer style underwear. Howard had his laptop computer in the bed at the time. He told K.R. to look away as he typed in a web address. Howard then showed K.R. a pornographic video. K.R. then got up and went to the bathroom. Afterward, Howard asked her if she was okay, and made her promise not to tell anyone what had occurred. Another incident occurred in the same residence on the same day. Howard again pulled K.R. on top of him and rubbed his penis against her vaginal area. Both were again wearing clothes.
{¶ 6} Howard next assaulted K.R. after he and L.R. moved to the house on “Maple Street.” Howard was in the home office sitting in a chair, drawing a picture for his anniversary with L.R. K.R. was watching him draw when Howard instructed her to get a blanket. When K.R. returned with the blanket, Howard placed it over her head, and pulled her onto his lap. He then pressed his penis against her buttocks, and moved her around on top of him.
{¶ 7} The next assault occurred in the same residence in the bedroom shared by Howard and L.R. Howard and K.R. were on the bed, clothed, when Howard pulled her on top of him. He then got off of the bed, stood beside it, and pulled K.R. to the edge of
{¶ 8} The next assault occurred in the apartment on “Oak Street,” when K.R. was in the residence playing a video game. At that time, Howard was lying on the couch. He pulled K.R. onto his lap and pressed his penis against her vaginal arеa. Both were clothed. Howard also, on another occasion, pulled his pants down to expose his penis. He then grabbed K.R.’s hands and forced her to rub his penis.
{¶ 9} Eventually, K.R. revealed the abuse to her good friend. A few months later, in November 2011, she informed her mother of the abuse, at which time Mother called the father, and asked him to come over. The matter was discussed, and the parents decided to contact the police. K.R. indicated that she did not disclose every dеtail of the abuse at that time. She did not discuss the abuse with her parents after that date.
{¶ 10} After the police were contacted, K.R. was examined at Children’s Hospital in Dayton, and was interviewed at CARE House. Her father eventually took her to a therapist. The record shows that K.R. revealed more details during the CARE House interview, as well as to the therapist. K.R. testified before a Grand Jury. Of relevance to that testimony, she denied having Howard’s penis in her mouth; instead describing it as close to hеr mouth.
{¶ 11} Howard was indicted on September 18, 2013 on an “A” indictment for three counts of Gross Sexual Imposition (under thirteen), in violation of
{¶ 12} Howard waived his right to a jury. Following a bench trial, he was convicted on all counts except Kidnapping. He was sentenced to a total term of eight years in prison. Howard appeals.
III. Howard’s Convictions Are Not Against the Manifest Weight of the Evidence
{¶ 13} Howard’s First Assignment of Error states:
THE APPELLANT’S CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 14} Howard contends that his convictions should be overturned because the testimony of K.R. is not credible.
{¶ 15} When conducting a manifest weight analysis, an appellate court “review[s] the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the
{¶ 16} Howard first contends that the convictiоns should be overturned because K.R. was the only one to testify that he touched her inappropriately, and because there were no witnesses who corroborated her testimony. We note that there is no requirement for corroborating testimony in cases involving either Rape or Gross Sexual Imposition. State v. Kepiro, 10th Dist. Franklin No. 06AP-1302, 2007-Ohio-4593, ¶ 22. Thus, this argument lacks merit.
{¶ 17} Howard also contends that K.R. had a motive for fabricating the allegations. Specifically, he refers to the fact that K.R. did not like the man her mother had started dating in June 2011. K.R. аdmitted that she did not like the boyfriend, and was not happy that he took up her mother’s time and attention. There is also evidence that just prior to the disclosure of the assaults, K.R. began to act out, by putting rocks on the front walkway with the intention of causing the boyfriend to trip and fall. She also placed rocks in his car, and spit on his car. Finally, when the boyfriend’s daughter was visiting, K.R. shut her in a bathroom with the light turned off. Howard claims that all this demonstrates that K.R. was acting “out against the boyfriend in ways that were clеarly designed to get her mother’s attention and did.” He notes that after the disclosure, the mother began to devote more time and attention to K.R.. Thus, he claims that this ulterior motive undermines K.R.’s credibility.
{¶ 18} The credibility of witnesses and the weight to be given to their testimony are primarily matters for the trier of fact to resolve. State v. DeHass, 10 Ohio St.2d 230, 231, 227 N.E.2d 212 (1967). The trial court, as finder of fact, heard the testimony of all of the
{¶ 19} We conclude that the trial court, as trier of fact, could have found that K.R. did make up the allegations in order to get her mother’s attention. It is also plausible that K.R.’s allegations against Howard were unrelated to the appearance of the boyfriend. The actions taken by K.R., such as putting rocks in the car and driveway, can be viewed as a reaction to the boyfriend that was separate from, and unrelated to, the allegations of abuse against Howard. The childish pranks might be seen as more consistent with how an eleven-year old girl might react to the boyfriend. Furthermore, the record demonstrates that K.R.’s mom met the boyfriend in June 2011. K.R. told her friend about the assaults “very early in the summer,” when the friend was “just out of school” for the summer. Tr. p. 27. The trial court could have reasonably found it unlikely that K.R. would fabricate allegations of abuse at the same time that her mom met the boyfriend. In any event, we do not conclude that the trial court lost its way in failing to credit this defense theory; it was acting within its capacity as the trier of fact in rejecting the claim of fabrication.
{¶ 20} Howard also contends that portions of K.R.’s testimony were contradicted by other witnesses. First, Howard notes that he, K.R.’s father, as well as her aunt, L.R., testified that K.R. was never left alone with Howard. He also nоtes that both he and L.R.
{¶ 21} There was conflicting testimony about the bathroom door. But there is evidence that, even if the door would not latch, it would close. Indeed, thе father’s testimony, while confusing, indicates that the door would close with difficulty, but would not latch. However, he indicated that when the door was re-opened, the latch would click out. Thus, we conclude that despite the fact that L.R. and Howard testified that the bathroom door would not close, there was other testimonial evidence, that of K.R. and her father, upon which the trial court could find that K.R. could have heard a noise when the bathroom door was opened, consistent with her testimony.
{¶ 22} With regard to whether K.R. slept in the bed with Howard and L.R., and whether she was ever left alone with Howard, there was conflicting evidence on these points. K.R. told people that she slept in the bed with her head and pillow at the foot end of the bed in between L.R. and Howard. Her father admitted that he had been made
{¶ 23} With regard to the remaining allegations, specifically the description of Howard’s penis, the issue of wireless internet, and what type of underwear Howard wears, there is a conflict between K.R.’s testimony and that of L.R. and Howard. The trial court observed the witnesses, and was in the best position to assess the credibility of their testimony. The trial court found K.R.’s testimony more credible. We conclude that the trial court did not lose its way in so finding.
{¶ 24} We next turn to Howard’s claim that K.R.’s testimony is not credible because she gave very little detail about the incidents, and was not able to give any specific dates. We disagree. K.R. was able to describe the details of the assaults. With the exception of two instances, she testified as to the room the offenses occurred in. She testified as to what furniture Howard was on at the times of the assaults. And she was able to tell which assault occurred in which hоme, thereby giving a specific time-frame for each crime. We do not find that her testimony in this regard was inherently incredible, or that the trial court erred in accepting her testimony.
{¶ 25} Next Howard claims that the evidence shows that K.R. was not credible, because her father testified that she did not act in the manner she should if she had been assaulted, and because he testified that she had given different people differing stories about the assaults. Howard also claims that K.R.’s school grades belie her claims of assault because they did not begin to fall until right around the time she made the
{¶ 26} During trial, the father testified that after the assaults, K.R.’s demeanor was “not good,” or “indifferent.” He testified that based upon his experience as the victim of child sexual abuse, he did not think she exhibited the proper reaction, for a child, to the abuse. He further testified that he did not believe that K.R. was assaulted, because she did not discuss it with him when it was occurring, and because she always appeared to be happy to go over to visit L.R. and Howard.
{¶ 27} The State introduced expert testimony from Dr. Brenda Miceli, that a child who has been a victim of sexual abuse may exhibit a wide range of behaviors, including showing no behavioral difficulties. Miceli also testified that not all children attempt to keep their distance from the abuser, because they are afraid that people will become suspicious and force the child to discuss the problem. She also testified that sometimes a child will cope with the abuse and hope that the abuser stops, rather than taking the risk of losing a positive relationship, such as the one K.R. had with her aunt.
{¶ 28} With regard to the grades, the record indicates that K.R. was a good student who made honor roll in school. However, in fifth grade, her grades began to drop. She testified that after she made the disclosures about the abuse she was not able to pay attention in class.
{¶ 29} We are not persuaded that the trial court erred by discrediting the father‘s claim that K.R. was not abused because she did not act the way he thought she should. Nor does the timing of her bad grades convince us otherwise, given K.R.’s explanation.
{¶ 30} The father also testified that he thought K.R. had been inconsistent in her
{¶ 31} The trial court reviewed the testimony before the Grand Jury, and found that the only inconsistency was K.R.’s testimony regarding oral sex. At trial, she testified that she actually had Howard’s penis in her mouth for a short time, and that she went to the bathroom to brush her teeth right afterward. The fact that Howard’s penis was actually in her mouth was not disclosed until trial.
{¶ 32} There is evidence in this record from Miceli that if believed, indicates that some children of sexual assault initially disclose only minimal information regarding the abuse, but that they provide more details as time progresses. This appears to be consistent with K.R.’s disclosures. We find no other inconsistencies in K.R.’s claims in the record before us.
{¶ 33} It is presumed that the trial court took this inconsistency into consideration. And the record shows that trial counsel made a strategic decision not to pursue the matter by recalling K.R. to the stand once the Grand Jury testimony hаd been reviewed. Furthermore, we note that Count II of the B-indictment charged Howard with Attempted Rape related to his attempt to force her to perform oral sex upon him. He was convicted of Attempted Rape, not of Rape. Therefore, while we agree that this constituted a significant discrepancy, the trial court was not required to credit K.R.’s testimony in this regard to have found Howard guilty of Attempted Rape.
IV. Howard’s Convictions Are Supported by Sufficient Evidence
{¶ 35} Howard’s Second Assignment of Error is as follows:
THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE APPELLANT’S CONVICTIONS.
{¶ 36} Howard contends that the State did not present evidence sufficient to sustain his convictions. In support, he argues that K.R. did not give sufficient testimony to support the second claim of Gross Sexual Imposition. He further argues that the prosecutor asked leading questions regarding the laptop computer as well as the oral sex incident.
{¶ 37} “ ‘[S]ufficiency’ is a term of art meaning that legal standard which is applied to determine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law.” State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). The proper test to apply to such an inquiry is the one set forth in paragraph two of the syllabus of State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), wherein the Ohio Supreme Court stated that “[a]n appellate court‘s function when reviewing the sufficiency of the evidence to support a criminal convictiоn is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt.
{¶ 38} We turn first to the claim that K.R. did not provide sufficient testimony to support the second claim of Gross Sexual Imposition. Gross Sexual Imposition is proscribed by
{¶ 39} K.R. testified that the second incident occurred at the same house as the first incident, which was identified as the “Elm Street” residence. She also testified that it was during a summer day, before her parents were divorced. The evidence shows that the parties stipulated that L.R. lived in that apartment from August 1, 2009 until September 2, 2010. The evidence also shows that K.R.’s parents were divorced June 23, 2010, which narrows the time frame to less than one year. She also testified that they were both clothed when he touched her in her vaginal area with his penis. We conclude that this testimony is sufficient to establish the offense of Gross Sexual Imposition.
{¶ 40} Indeed, we have examined the record with regard to all the charges of Gross Sexual Imposition, and find that K.R. adequately described the actions taken by
{¶ 41} We also find sufficient evidence to support the convictions for Attempted Rape, which is proscribed by
{¶ 42} The testimony of K.R. established that Howard tried to insert his penis into
{¶ 43} Howard next complains that none of the offenses would have been established except for the fact that the prosecutor continually asked leading questions of K.R. “Evid.R. 611(C) provides leading questions cannot be used on direct examination of a witness ‘except as may be necessary to develop his testimony.’ The exception ‘ * * * is quite broad and places the limits upon the use of leading questions on direсt examination within the sound judicial discretion of the trial court.’ ” State v. Wilson, 2d Dist. Montgomery No. 19618, 2003-Ohio-6229, ¶ 37, quoting State v. Rector, 7th Dist. Carroll No. 01AP758, 2002–Ohio–7442, ¶ 28. The trial court “is in a much better position than we are to gauge when leading questions are necessary to develop a witness‘s testimony.” Id., quoting Rector at ¶ 30. “Court‘s [sic] have continued to emphasize the latitude given the trial court in such matters, especially in cases involving children who are the alleged victims of sexual offenses.” Id.
{¶ 44} K.R. was aged nine to eleven when the incidents occurred, and was thirteen years old at the time of the trial. We have reviewed the record, and note that while Howard contends that the prosecutor asked K.R. a leading question about the laptop computer, he failed to make an objection thereto. Furthermore, the prosecutor merely asked K.R. whether she remembered anything about a computer. The question led K.R. to note that Howard had her look at pornographic videos on his laptop. This was not an offense with which the State charged Howard. We find nо prejudicial error.
{¶ 46} We conclude that the trial court was aware of the semantics used in testimony, and that it took the semantics into consideration in its deliberations. K.R. testified that she knows what oral sex is, and that Howard forced her to perform oral sex upon him. In any event, Howard was not convicted of Rape with regard to this incident.
{¶ 47} We have reviewed the entire transcript of K.R.’s testimony, and note that while the State did ask leading questions, the trial court sustained objections thereto when defense counsel raised objections. We conclude that the trial court, as the trier of fact, was able to discern when leading questions were improper, and that proper discretion was exercised with regard thereto.
{¶ 48} Howard’s Second Assignment of Error is overruled.
V. Conclusion
{¶ 49} Both of Howard’s assignments of error having been overruled, the judgment of the trial court is Affirmed.
DONOVAN and WELBAUM, JJ., concur.
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Mathias H. Heck
Tiffany C. Allen
William O. Cass, Jr.
Hon. Dennis J. Adkins