State v. KenneyState v. Kenney
Rendered on October 22, 2009
Ron O‘Brien, Prosecuting Attorney, and Barbara A. Farnbacher, for appellee.
Todd W. Barstow, for appellant.
APPEAL from the Franklin County Court of Common Pleas.
FRENCH, P.J.
{¶1} Defendant-appellant, Christopher M. Kenney (“appellant“), appeals the judgment оf the Franklin County Court of Common Pleas, which convicted him of eight counts of rape, two counts of gross sexual imposition, and two counts of disseminating matter harmful to juveniles. For the following reasons, we affirm.
{¶3} C.C. testified on behalf of plaintiff-appellee, the state of Ohio. C.C. was nervous and apprehensive about discussing the sex abuse, but she eventually testified as follows. Appellant sexually touched her with his hands. One area appellant touched was her breasts. Appellant‘s mouth never touched her body. Appellant had anal and vaginal intercourse with her, and she experienced pain from the vaginal intercourse. She had to touch appellant‘s “private part.” (Tr. 139.) Appellant made her perform fellatio. Appellant showed her pornographic mоvies. She did not remember if the sex abuse happened when she was four years old, but she said the sex abuse happened when she was five and six years old. The sex abuse happened almost every night. Appellant told her to keep the sex abuse а secret.
{¶4} Kerri Marshall is a social worker at the Center for Child and Family Advocacy (“Advocacy Center“). Marshall interviewed C.C. before her medical examination at the Advocacy Center. C.C.‘s statements at the Advocacy Center tracked
{¶5} After the prosecution rested its case, appellant raised a
{¶6} During closing argument, defense counsel noted that, at the Advocacy Center, C.C. said that appellant performed cunnilingus, but at trial C.C. denied this sexual activity. Defense counsel аlso said that, when he questioned C.C., he “treated her as if she was my own daughter.” (Tr. 662.) The jury found appellant guilty of all charges pertaining to when C.C. was five and six years old, but not guilty of the charges pertaining to when she was four years old. The trial court sentenced appellant and
{¶7} Appellant appeals, raising the following assignments of error:
I. APPELLANT‘S TRIAL COUNSEL WAS INEFFECTIVE, THEREBY DENYING HIM HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTIONS.
II. APPLICATION OF THE PROVISIONS OF SENATE BILL 10 TO THOSE CONVICTED OF OFFENSES COMMITTED BEFORE ITS JANUARY 1, 2008 EFFECTIVE DATE, BUT SENTENCED AFTER THAT DATE, VIOLATES THE BAN ON EX POST FACTO LAWMAKING BY THE STATES SET FORTH IN ARTICLE I, SECTION 10 OF THE UNITED STATES CONSTITUTION.
III. THE APPLICATION OF S.B. 10 TO PERSONS WHO COMMITTED THEIR OFFENSE PRIOR [TO] THE ENACTMENT OF S.B. 10 VIOLATES THE RETROACTIVITY CLAUSE OF THE OHIO CONSTITUTION, ARTICLE II, SECTION 28.
IV. THE APPLICATION OF S.B. 10 VIOLATES THE UNITED STATES CONSTITUTION‘S PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENTS.
V. THE TRIAL COURT ERRED AND DEPRIVED APPELLANT OF DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE ONE SECTION TEN OF THE OHIO CONSTITUTION BY FINDING HIM GUILTY OF RAPE, GROSS SEXUAL IMPOSITION AND DISSEMINATING MATTER HARMFUL TO JUVENILES AS THOSE VERDICTS WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE AND WERE ALSO AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶9} The United States Supreme Court established a two-pronged test for ineffective assistance of counsel. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052. First, the defendant must show that counsel‘s performance was outside the range of prоfessionally competent assistance and, therefore, deficient. Id. at 687, 104 S.Ct. at 2064. Second, the defendant must show that counsel‘s deficient performance prejudiced the defense and deprived the defendant of a fair trial. Id. A defendant establishes рrejudice if “there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcomе.” Id. at 694, 104 S.Ct. at 2068.
{¶10} Appellant argues that defense counsel was ineffective for not cross-examining C.C. over prior inconsistent statements she made during her Advocacy Center interview. Appellant notes that (1) at the Advocacy Center, C.C. said that the sex abuse oсcurred when she was four years old, but C.C. said at trial that she did not remember if the sex abuse happened at that age, and (2) at the Advocacy Center, C.C. said that appellant performed cunnilingus, but C.C. denied this activity at trial. The scope of cross-examinаtion falls within the ambit of trial strategy. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶101. Reasoned trial strategy existed for defense counsel not to take a confrontational stance against C.C. while she was on the stand because she was a sympathetic witness as the young victim of sex abuse. Defense
{¶11} Appellant‘s second, third, and fourth assignments of error concern his Tier III sex offender classification. The trial court made this classification pursuant to the Adam Walsh Act, implemented under S.B. 10. Appellant argues that retroactive application of this law violates the Ex Post Facto Clause of the United States Constitution and the Ohio Constitution‘s ban on retroactive laws. Appellant also argues that the classification violates constitutional protections against cruel and unusual punishment. Appellant did not raise these issues in the trial court. A constitutional issue not raised at trial “need not be heard for the first time on appeal.” State v. Awan (1986), 22 Ohio St.3d 120, syllabus. Accord State v. Franklin, 182 Ohio App.3d 410,
{¶12} In his fifth assignment of error, appellant argues that his convictions are based on insufficient evidence and against the manifest weight of the evidence. We disagree.
{¶13} Sufficiency of the evidence is a legal standard that tests whether the evidence introduced at trial is legally sufficient to support a verdict. State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52. We examine the evidence in the light most favorable to the state and conclude whether any rational trier of fact could have found that the state proved beyond a reasonable doubt the essential elements of the crime. State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus; State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, ¶78. We will not disturb the verdict unless we determine that reasonable minds could not arrive at the conclusion reached by the trier of fact. Jenks at 273. In determining whether a conviction is based on sufficient evidence, we do not assess whether the evidence is to be believed, but whether, if believed, the evidence against a defendаnt would support a conviction. See
{¶14} In determining whether a verdict is against the manifest weight of the evidence, we sit as a ” ‘thirteenth juror.’ ” Thompkins at 387. Thus, we review the entire record, weigh the evidence and all reasonable inferences, and consider the credibility of witnesses. Id. Additionally, we determine “whether in resolving conflicts in the evidence, 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., quoting State v. Martin (1983), 20 Ohio App.3d 172, 175. We reverse a conviction on manifest weight grounds for only the most ” ‘exceptional case in which the evidence weighs heavily against the conviction.’ ” Thompkins at 387, quoting Martin at 175. Moreоver, ” ‘it is inappropriate for a reviewing court to interfere with factual findings of the trier of fact * * * unless the reviewing court finds that a reasonable juror could not find the testimony of the witness to be credible.’ ” State v. Brown, 10th Dist. No. 02AP-11, 2002-Ohio-5345, ¶10, quoting State v. Long (Feb. 6, 1997), 10th Dist. No. 96APA04-511.
{¶15} Appellant challenges his convictions by raising credibility issues against C.C. This credibility challenge is not relevant to appellant‘s sufficiency of the evidence claim. See Yarbrough at ¶79. Appellant raises no other arguments to support his sufficiency of the evidence claim, and we find that the prosecution‘s еvidence, in particular C.C.‘s testimony and Advocacy Center interview, support appellant‘s
{¶16} Appellant‘s challenge to C.C.‘s credibility is relevant to his manifest weight of the evidence claim. See Thompkins at 387. Appellant reiterates that, at the Advocacy Center, C.C. said that the sex abuse occurred when she was four, but C.C. said at trial that she did not remember if the sex abuse happened at that age. This inсonsistency is irrelevant because the jury acquitted appellant on those charges pertaining to when C.C. was four years old. Appellant reiterates that, at the Advocacy Center, C.C. said that appellant performed cunnilingus, but C.C. denied this activity at trial. We conclude that the jury did not lose its way when it convicted appellant of rape by cunnilingus when C.C. was five and six years old. At the Advocacy Center, C.C. made explicit statements concerning two acts of cunnilingus, statements that provide compelling support for the convictions.
{¶17} Lastly, to the extent that appellant argues that C.C.‘s inconsistent statements rendered all of his convictions against the manifest weight of the evidence, we disagree. At trial and at the Advocacy Center, C.C. described the pornography that appellant showed her. At the Advocacy Center, C.C. bolstered her sex abuse claims when she identified on an anatomical drawing the areas of her body that appellant molested. Also supporting C.C.‘s allegations is her revelаtion that she bled and experienced pain from the sex abuse. In addition, appellant telling C.C. to keep the sex abuse a secret indicates furtive conduct reflective of a consciousness of guilt. See State v. Saleh, 10th Dist. No. 07AP-431, 2009-Ohio-1542, ¶86. By convicting appellant,
{¶18} In summary, we overrule appellant‘s five assignments of error. Therefore, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
KLATT and McGRATH, JJ., concur.