STATE OF OHIO v. GEORGE E. JACKSON
Appellate Case No. 26050
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
December 29, 2015
[Cite as State v. Jackson, 2015-Ohio-5490.]
Trial Court Case No. 12-CR-56 (Criminal Appeal from Common Pleas Court)
OPINION
Rendered on the 29th day of December, 2015.
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MATHIAS H. HECK, JR., by KIRSTEN A. BRANDT, Atty. Reg. No. 0070162, Montgomery County Prosecutor‘s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45402 Attorneys for Plaintiff-Appellee
MARSHALL G. LACHMAN, Atty. Reg. No. 0076791, 75 North Pioneer Boulevard, Springboro, Ohio 45066 Attorney for Defendant-Appellant
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FAIN, J.
{¶ 1} Defendant-appellant George E. Jackson appeals from his conviction on two
{¶ 2} The State contends that the convictions are supported by credible and sufficient evidence and that Jackson received effective assistance of counsel. The State further argues that the trial court properly excluded evidence of prior accusations made by the victim, and properly overruled the motion to allow Jackson to withdraw his plea.
{¶ 3} We conclude that the trial court did not err in excluding the victim‘s prior accusations of sexual abuse against a different offender, without holding a hearing, in view of the fact that the defense made no proffer of the falsity of those accusations. We also conclude that the court did not err by not conducting a hearing before overruling the motion to withdraw the plea, since Jackson failed to present a reasonable and legitimate
I. The Alleged Sex Offenses
{¶ 4} C.T. began dating Jackson in December, 2011, after meeting at a roller skating rink. Jackson, C.T. and her daughter, D.S., attended an all-night skating party on New Year‘s Eve, then went to Jackson‘s apartment in Dayton. The victim, D.S., testified that both before and after the skating party, at three differеnt times, Jackson touched her body, kissed her lips and breasts, touched her buttocks, and “fingered” her vagina under her clothes. At the time, D.S. was eleven years old. After D.S. reported these events to her mother, the police were contacted, and D.S. was interviewed at Care House.
{¶ 5} A search warrant was sought in furtherance of investigating Jackson for rape charges, to obtain from Jackson‘s apartment, “cell phones, cameras, video recording equipment, computers and hard drives, Wii Game Systems, any nude, explicit Photographs of minor children or adults, and digital media storage devices, I-pod, portable masseuse table/bed and any and all evidence associated with the sexual assault investigаtion.” The affidavit stated that the facts were based on statements made by the victim and her mother that Jackson had a collection of photographs and other images on three cell phones that depicted different body parts of unidentified women and juvenile girls. As a result of the search of Jackson‘s apartment, the police seized an iPod, three iPhones, an LG cell-phone, four portable hard drives, video recording equipment, four
{¶ 6} In 2009, Jackson lived in a Dayton suburb with his wife. At that time, N.C. wаs six years old and periodically visited their home. The videotape seized from the search warrant of Jackson‘s home depicts Jackson helping N.C. undress, N.C. taking a shower, Jackson applying soap to the boy‘s body, washing the boy‘s penis, and holding the boy up so the camera could capture a clear view of the boy‘s genitals. N.C. was initially interviewed at Care House by a female detective, then later interviewed by a male police detective. N.C. reported to the male detective that Jackson had touched him inappropriately a number of times, giving specific details about numerous instances when Jackson made sexual contact with him.
II. The Course of Proceedings
{¶ 7} Jackson was charged with numerous sex offеnses under three separate indictments, which were referred to in the record as Indictments A, B and C. The charges in Indictment A are in connection with offenses committed against the minor victim D.S. In Indictment A, Jackson was charged with two counts of Rape, felonies of the first degree, in violation of
{¶ 8} The charges in Indictment B are in connection with the offenses committed
{¶ 9} The charges in Indictment C all relate to images found in Jackson‘s cell phones, computers or other electronic devices. Indictment C charged Jackson with three counts of Possession of Criminal Tools, felonies of the fifth degree, in violation of
{¶ 10} Jackson filed a motion to suppress all evidence obtained from Jackson‘s computers, cell phones, other electronic devices and the video recording equipment,
{¶ 11} Subsequent to the court‘s ruling on the motion to suppress, Jackson filed a motion to dismiss the charges in Indictment B supported by the videotape seized pursuant to the search warrant, on the grounds that the court‘s suppression ruling excluded all evidence seized other than the cell phones. The trial court agreed that the affidavit for the search warrant did not support probable cause for the seizure of the videotape, but the trial court, in overruling the motion to dismiss found that the good-faith exception applied, by stating as follows:
And, the Court finds that, again, on this good faith exception, as the court found in the court‘s suppression decision that there is no evidence that Detective Mary Lou Phillips misled the issuing - - the magistrate judge who issued the search warrant. The issuing judge did not wholly abandon his judicial role. And the Court finds that Detective Phillips’ affidavit was not so lacking in indicia of probable cause that the videotape would contain
evidence of the Defendant‘s sexual activity with D.S, as to make the belief in the existence of that probable cause unreasonable. So the good faith exception applies.
Transcript, Motions hearing 1/31/13, pg. 7.
{¶ 12} The trial court also denied the defense motion to suppress the testimony of N.C. Jackson had argued that the pоlice interview of the minor victim N.C. would not have taken place without the unlawful seizure of the electronic equipment, and the officers’ review of the videotape and location of the child depicted in the videotape. The trial court found that Jackson‘s position for the motion relied on facts outside the record, as no testimony was taken at the suppression hearing. The trial court also stated that the “but for” argument, [but for the illegally seized videotape, the child victim, N.C. would not have been discovered] is insufficient as a matter of law, not only because the videotape was legally seized but also because the necessary evidentiary factors to consider the suppression of testimony of a live witness were not presented. Transcript, Motions hearing 1/31/13, pg.10, citing U.S. v. Ceccolini, 435 U.S. 268, 98 Sup. Ct. 1054, 55 L.Ed.2d 268 (1978). State v. Wipf, 397 F. 3d 677 (8th Cir. 2005).
{¶ 13} Prior to trial, Jackson filed a motion in limine, asking the court to allow evidence of a previous incident, reported to the police, when the minor victim D.S. accused another individual of sexual contact, to support Jackson‘s defense of an alternative suspect. The State argued that the rape shield law applied to prevent the disclosure of any evidence of the victim‘s past sexual activity, that the incidents were not sufficiently similar and that its admission would be unduly prejudicial. The trial court adopted the State‘s arguments and overruled the defense motion without conducting a
{¶ 14} Jackson filed a motion to sever the trials on the three indictments. The trial court agreed to conduct separate trials for the charges identified in Indictments A and B, related to two different victims, but found that the charges under Indictments A and C should be tried together, based on an assumption that the victim, D.S, in Indictment A, would testify that she was shown the cell phone images that form the evidentiary basis for the charges in Indictment C. Transcript, Motions hearing 1/31/13, pg. 29. In its analysis of the motion to sever, the trial court agreed with the State‘s position that the cell-phone images are admissible under
{¶ 15} Once it was decided that the cell-phone images would be admissible in the trial on the Indictment A charges, Jackson pled no contest to nineteen of the counts charged in Indictment C. At the plea hearing, the court specifically advised Jackson that his decision to plead did not necessarily mean that the cell-phone images would not be seen by the jury hearing the charges brought against him in Indictment A, because it would still depend on whether the State offers a sufficient foundation for admission. Jackson acknowledged that he understood this admonition. Dkt. #211 at pg. 25.
{¶ 16} After the plea hearing, the State filed a motion in limine asking the court to allow the cell-phone images into evidence at the trial on the Indictment A charges, based on
{¶ 17} After the plea hearing, the State filed a motion to allow the admission of the cell-phone images during the trial on the Indictment B charges. Jackson opposed the motion on the basis that the admission of photos of other children, not the victim in the trial, would be more prejudicial than probative. The trial court agreed with the defense argument and sustained the motion, adopting the reasoning of Jackson‘s memorandum in opposition to the State‘s motion in limine. Dkt #184.
{¶ 18} At the conclusion of the trial on the charges in Indictment A, Jackson moved to dismiss the charges, based on
{¶ 19} After convictions were rendered against Jackson from the separate jury trials for the charges in Indictments A and B, but prior to sentencing, Jackson moved to withdraw his plea to the charges contained in Indictment C. Jackson argued that his plea
{¶ 20} Based on the convictions from all three indictments, Jackson was sentenced to serve a term of imprisonment totaling 23 years to life. From his conviction and sentence, Jackson appeals.
III. The Trial Court Properly Excluded Evidence of the Victim‘s Prior Accusations of Sexual Misconduct
{¶ 21} For his First Assignment of Error, Jackson alleges:
THE TRIAL COURT ERRED IN OVERRULING THE APPELLANT‘S MOTION IN LIMINE TO PERMIT EVIDENCE OF PRIOR FALSE ALLEGATIONS OF SEXUAL ABUSE WITHOUT CONDUCTING AN IN CAMERA HEARING
{¶ 22} Jackson contends that his motion to allow the admission of evidence from the victim regarding her previous accusations of sexual misconduct was improperly overruled without a hearing. A trial court has discretion to determine whether a witness may be asked on cross-examination about specific acts of conduct that are “clearly probative of truthfulness or untruthfulness.”
{¶ 23} Jackson relies on the holding of the Supreme Court of Ohio in State v. Boggs, 63 Ohio St. 3d 418, 588 N.E.2d 813 (1992), which directs trial courts to conduct an in camera hearing to detеrmine the admissibility of a rape victim‘s prior false rape accusations. In Boggs, the Supreme Court of Ohio provides guidance for balancing the objective of the rape shield statute,
IV. Jackson‘s Trial Counsel Was Not Ineffective
{¶ 25} For his Second Assignment of Error, Jackson alleges:
APPELLANT WAS DENIED HIS CONSTITUTIONALLY GUARANTEED RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.
{¶ 26} Jackson contends that defense counsel was ineffective because: (1) he failed to object to the lack of any testimonial evidence at the suppression hearing; (2) in the motion to suppress, he failed to specifically identify the videotape as the evidence he was seeking to suppress; (3) in his motion to dismiss, he failed to provide evidentiary support for allegations that the victim would not have been found for the Indictment B charges, but for the seizure of the videotape; (4) he failed to file a second motion to
{¶ 27} To reverse a judgment based on ineffective assistance, the record must support a finding that defense counsel‘s performance was deficient, and that a reasonable probability exists that, but for counsel‘s omissions, the outcome would have been different. State v. Jones, 1st Dist. Hamilton No. C-130359, 2014-Ohio-3110, ¶ 27, citing Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the syllabus.
{¶ 28} Jackson has not established that he was prejudiced by his counsel‘s deficient performance to the extent that the outcome would have been different. We agree that the trial court properly applied the “good faith” exception to the exclusionary rule to allow the admission of the videotape evidеnce obtained from the search warrant. See, e.g., State v. Perez, 2015-Ohio-1753, 32 N.E. 3d 1010 (2d Dist.). Therefore, we conclude that a different outcome would not have resulted if defense counsel had presented testimony at the suppression hearing, if he had specified the videotape as the evidence to be suppressed, or if he had filed a second motion to suppress.
{¶ 29} Jackson has not established that he was prejudiced by his counsel‘s failure to present evidence in support of the motion to dismiss Indictment B on the basis that but for the wrongfully seized videotape, the police would not have discovered the identity of the victim. Since the videotape was not wrongfully seized, the basis of the motion was
{¶ 30} Jackson has not established that he was prejudiced by his counsel‘s failure to proffer evidence at trial of the victim‘s prior false accusations of sexual misconduct. The record does reflect that a proffer was made, but the proffer included an admission that the accused offender pled no contest to the charges. Jackson has not alleged or supported a claim that any evidence was available to support the falsity of the victim‘s accusations that could have been presented by his counsel. Defense counsel cannot be found to be ineffective by failing to present or proffer evidence that does not exist.
{¶ 31} Jackson‘s Second Assignment of Error is overruled.
V. The Trial Court Did Not Abuse its Discretion in Overruling Jackson‘s Motion to Withdraw his Pleas
{¶ 32} Jackson‘s Third Assignment of Error alleges as follows:
THE TRIAL COURT ERRED IN OVERRULING THE DEFENDANT‘S MOTION TO WITHDRAW NO CONTEST PLEAS.
{¶ 33} Jackson contends that the trial court erred by failing to conduct a hearing before overruling his motion to withdraw his plea. The Supreme Court of Ohio has stated that a trial court should hold a hearing on a motion to withdraw a plea “unless it is clear that denial of the motion is warranted.” State v. Wilson, 2d Dist. Montgomery No. 26354, 2015-Ohio-1584, ¶ 19, citing State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, 820 N.E.2d 355, ¶ 51.
{¶ 34} We recently reviewed the law applicable to the review of rulings on motions
Crim.R. 32.1 provides: “A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct a manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea.” Under the foregoing rule, a pre-sentence motion to vacate a guilty plea “should be freely and liberally granted.” State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992). Nevertheless, even under the pre-sentence standard, the right to withdraw a plea is not absolute and a trial court retains discretion to overrule a pre-sentence plea-withdrawal motion. Id. The pre-sentence standard, however, is far more lenient than the “manifest injustice” standard applicable to post-sentence motions. State v. Fugate, 2d Dist. Montgomery No. 21574, 2007-Ohio-26, ¶ 10.
. . .
But even under the more lenient pre-sentence standard, “a defendant must show a reasonable and legitimate basis for the withdrаwal of the plea.” * * * “A change of heart is not enough,” and a trial court‘s finding regarding a defendant‘s true motivation is entitled to deference. * * * Likewise, a trial court‘s ultimate decision to grant or deny a pre-sentence motion to withdraw a guilty plea is subject to review for an abuse of discretion. Fugate, at ¶ 10.
State v. DeJesus, 2d Dist. Greene No. 2015-CA-4, 2015-Ohio-4111, ¶ 16, citing State v. Simpson, 2d Dist. Montgomery No. 24266, 2011-Ohio-6181, ¶ 7, 10.
{¶ 36} In evaluating whether a trial court has abused its discretion in overruling a motion to withdraw a plea, we have reviewed the following nine factors set forth in State v. Fish, 104 Ohio App. 3d 236, 240, 661 N.E. 2d 788 (1st Dist. 1995):
(1) whether the accused is reрresented by highly competent counsel, (2) whether the accused was given a full
Crim.R. 11 hearing before entering the plea, (3) whether a full hearing was held on the motion, (4) whether the trial court gave full and fair consideration to the motion, (5) whether the motion was made within a reasonable time, (6) whether the motion sets out specific reasons for the withdrawal, (7) whether the accused understood the nature of the charges and possible penalties, (8) whether the accused was perhaps not guilty of or had a complete defense to the charge or charges, and (9) whether the state is prejudiced by withdrawal of the plea.
State v. Massey, 2d Dist. Champaign No. 2015-CA-1, 2015-Ohio-4711, ¶ 11. See also State v. Spurgeon, 2d Dist. Greene No. 2014-CA-12, 2014-Ohio-4849, ¶¶ 15-16; State v. Preston, 2d Dist. Montgomery No. 25393, 2013-Ohio-4404; State v. Berry, 2d Dist. Greene No. 2013-CA-34, 2014-Ohio-132, ¶ 33, quoting State v. Hess, 2d Dist. Montgomery No. 24453, 2012-Ohio-961, ¶ 18. Consideration of the foregoing factors involves a balancing test, and no single factor is dispositive. Preston at ¶ 20.
{¶ 37} The record supports that Jackson was represented by competent counsel and that he was afforded a full hearing before he entered his plea, at which the court took appropriate steps to assure that Jackson understood the nature of the charges and the possible penalties. It is significant that at the plea hearing, the trial court specifically admonished Jackson that his decision to plea did not mean either that the evidence from
{¶ 38} Jackson‘s Third Assignment of Error is overruled.
VI. The Convictions Are Supported by Sufficient Evidence
{¶ 39} For his Fourth Assignment of Error, Jackson alleges as follows:
THE TRIAL COURT ERRED BY OVERRULING APPELLANT‘S MOTION FOR ACQUITTAL SINCE THE STATE FAILED TO SUPPLY SUFFICIENT EVIDENCE AS TO ALL THE ELEMENTS NECESSARY TO
SUPPORT THE CHARGES AGAINST THE DEFENDANT
{¶ 40} Jackson contends that the trial court erred in overruling his
{¶ 41} “Reviewing the denial of a
{¶ 42} At trial, the defense argued that the evidence presented at the first trial on the Indictment A was insufficient because the victim‘s testimony regarding the timing of the sexual misconduct did not match the dates alleged in the Bill of Particulars, which specified that the events happened between December 31, 2011 and January 2, 2012. Dkt. #31. On cross-examination, the victim, D.S., did agree that the first incident with Jackson happened one or two days before the incident on New Year‘s Eve. At trial, Jackson argued that he was prejudiced by this change in the date of the alleged offense, because he might have been able to pursue an alibi defense if he had known that the victim would testify to an earlier date of the offense. It has been held that precise times and dates arе not essential elements of an offense, and therefore the failure to provide dates and times in an indictment is not grounds for its dismissal. State v. Sellards, 17 Ohio St. 3d 169, 478 N.E. 2d 781 (1985). We have held that “an allowance for inexactitude in the date and time of the offense is permissible, and must be made especially in cases involving the sexual abuse of young children where there are several instances of abuse spread out over an extended time period.” State v. Bolling, 2d Dist. Montgomery No. 20225, 2005-Ohio-2509, ¶ 36. Therefore, the fact that the testimony of a young child was not precise as to the time and date of an assault, but within a reasonable range of the dates specified in a Bill of Particulars is sufficient to prove the statutory elements of the sex offense.
{¶ 43} Jackson also argues that the testimony of both victims (in the A & B indictments) was so inconsistent with prior statements given to police during their interviews at Care House, that no rational trier of fact could have found Jackson guilty
{¶ 44} In the first trial on the Indictment A charges, the victim‘s testimony covered all the essential elements of two counts of Rape, as set forth in
{¶ 45} In the second trial on the Indictment B charges, the victim‘s testimony covered all the essential elements of one count of Illegal Use of a Minor in Nudity-oriented Materials, as set forth in
{¶ 46} Based on our review of the record, we conclude that the convictions are supported by sufficient evidence. Jackson‘s Fourth Assignment of Error is overruled.
VI. The Verdicts Are Not Against the Manifest Weight of the Evidence
{¶ 47} For his Fifth Assignment of Error, Jackson alleges as follows:
THE TRIAL COURT‘S VERDICTS SHOULD BE REVERSED AS THEY WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 48} Jackson contends that his convictions are against the manifest weight of the evidence for the same reasons raised in his Fourth Assignment of Error, that inconsistencies in the testimony of the victims rendered their testimony unreliable. Unlike the previous assignment of error, in consideration of this argument, we are required to review the entire record, weigh the evidence and all reasonable inferences, and consider the credibility of the witnesses. State v. Hancock, 108 Ohio St. 3d 57, 2006-Ohio-160, 840 N.E. 2d 1032, ¶ 39.
{¶ 49} In determining whether a verdict is against the manifest weight of the evidence, the appellate court acts as a “thirteenth juror.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). Under this standard of review, the appellate court weighs the evidence in order to determine whether the trier of fact “clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” Id.
{¶ 50} Weighing the credibility of victims who are young children, particularly when a lоng period of time elapses between the incident and the police interview or the trial is a difficult task. We recognize that “the trier of fact is better situated than an appellate court to view witnesses and to observe their demeanor, gestures, voice inflections and to use those observations in weighing credibility.” State v. Lewis, 4th Dist. Scioto No. 01CA2787, 2002 WL 368625 (Feb. 25, 2002). “A trier of fact is free to believe all, part or none of the testimony of each witness.” Id. at *3, citing State v. Long, 127 Ohio App.3d 328, 713 N.E.2d 1 (4th Dist. 1998). Although the testimony of the victims in the present case does contain inconsistencies, we do not find that the jury lost its way in deciding to believe the portions of the victims’ testimony identifying Jackson and describing his conduct that met the elements of the charged offenses.
{¶ 51} Jackson‘s Fifth Assignment of Error is overruled.
VII. Conclusion
{¶ 52} All assignments of error having been overruled, the judgment of the trial court is Affirmed.
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FROELICH, P.J., and HALL, J., concur.
Mathias H. Heck
Kirsten A. Brandt
Marshall G. Lachman
Hon. Dennis J. Langer