STATE OF OHIO v. CURTIS R. LUX
C.A. CASE NO. 2010 CA 30
IN THE COURT OF APPEALS FOR MIAMI COUNTY, OHIO
January 13, 2012
2012-Ohio-112
FROELICH, J.
T.C. NO. 09CR521; (Criminal appeal from Common Pleas Court)
JAMES D. BENNETT, Atty. Reg. No. 0022729, Assistant Prosecuting Attorney, 201 West Main Street, Safety Building, Troy, Ohio 45373 Attorney for Plaintiff-Appellee
MARK A. DETERS, Atty. Reg. No. 0085094, 371 West First Street, Dayton, Ohio 45402 Attorney for Defendant-Appellant
OPINION
FROELICH, J.
{1} Curtis R. Lux was convicted of gross sexual imposition after a jury trial in the Miami County Court of Common Pleas. The trial court sentenced him to one year in prison and ordered him to pay court costs. Lux appeals from his conviction and sentence, raising three assignments of error. We will address them in an order that facilitates our analysis.
{3} “APPELLANT‘S CONVICTION IS NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE AND IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
{4} In his second assignment of error, Lux claims that his conviction was based on insufficient evidence and was against the manifest weight of the evidence.
{5} “A sufficiency of the evidence argument disputes whether the State has presented adequate evidence on each element of the offense to allow the case to go to the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). When reviewing whether the State has presented sufficient evidence to support a conviction, the relevant inquiry is whether any rational finder of fact, after viewing the evidence in a light most favorable to the State, could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997), citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d. 560 (1979). A guilty verdict will not be disturbed on appeal unless “reasonable minds could not reach the conclusion reached by the trier-of-fact.” Id.
{6} In contrast to the sufficiency of the evidence standard, “a weight of the evidence argument challenges the believability of the evidence and asks which of the competing inferences suggested by the evidence is more believable or persuasive.” Wilson at ¶ 12. When evaluating whether a conviction is contrary to the manifest weight of the
{7} Because the trier of fact sees and hears the witnesses at trial, we must defer to the factfinder‘s decisions whether, and to what extent, to credit the testimony of particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684 (Aug. 22, 1997). However, we may determine which of several competing inferences suggested by the evidence should be preferred. Id.
{8} The fact that the evidence is subject to different interpretations does not render the conviction against the manifest weight of the evidence. Wilson at ¶ 14. A judgment of conviction should be reversed as being against the manifest weight of the evidence only in exceptional circumstances. Martin, 20 Ohio App.3d at 175.
{9} The State‘s evidence at trial reveals the following facts:
{10} On October 30, 2009, twelve-year-old Brittany spent the evening with her friends, D.B. and J.B., who are sisters. Brittany told her mother that she would spend the night at D.B. and J.B.‘s home, while the sisters told their parents that they planned to spend the night at Brittany‘s house. In fact, the girls planned to meet one of D.B.‘s friends and to stay at that girl‘s house, but D.B.‘s friend failed to meet them at the prearranged location. The girls tried, unsuccessfully, to find another friend to stay with. Brittany ultimately
{11} When Lux answered his door, Brittany told him that they did not have anywhere to stay and she asked him if they could stay at his house. Lux responded that they could sleep in his van, and he unlocked the vehicle for them. Lux later brought the girls some snacks, water, and blankets. J.B. got into the front passenger seat, D.B. took the middle bench seat, and Brittany got into the rear seat of the van. Lux got into the rear seat with Brittany.
{12} According to Brittany‘s testimony at trial, at some point, Lux “got vertically on top of me and *** started kissing my neck.” Lux put his hand under Brittany‘s shirt, unbuttoned and unzipped her blue jeans, and put his hand down her pants. Lux rubbed Brittany‘s “vaginal area.” After Lux pulled his hand away, Brittany rolled over and later fell asleep. J.B. testified that she saw Lux and Brittany tickling each other, and D.B. heard Brittany and Lux “giggling and talking;” neither sister saw any sexual activity between Brittany and Lux.
{13} In the morning, the girls went to the sisters’ house. Brittany told J.B. that she had “made out” with Lux; J.B. told D.B., who told her mother. J.B. and D.B.‘s mother contacted the police.
{14} On November 1, 2009, Brittany was interviewed at her home by Troy Police Officer Joel Misirian. Brittany was hostile to the officer, and she told him that Lux “was just kissing my neck.” Brittany denied that any other sexual activity had occurred.
{15} After leaving Brittany‘s home, Officer Misirian talked with Lux at his
{16} After the interview, Officer Misirian contacted Detective Alex Hillman, who advised the officer to ask Lux if he would be willing to come to the police station for a further interview. Lux agreed, and Misirian drove Lux to the station. Detective Hillman interviewed Lux, and Lux made statements consistent with his conversation with Officer Misirian. A videotape of Hillman‘s interview with Lux was shown to the jury.
{17} The following day, Brittany was interviewed at the police station by Detective Alex Hillman and a victim advocate named Carmen. Brittany reiterated that Lux had kissed her neck, but denied that any other sexual activity had happened. During defense counsel‘s cross-examination of Brittany, a portion of the videotape of this interview was played for the jury. Brittany testified that she subsequently testified for a grand jury, during which she stated that Lux had kissed her and put his hand down her pants.
{18} Lux testified on his own behalf at trial. He stated that the girls had come to his housing looking for a place to spend the night, and he agreed to let them stay in his van. Lux indicated that he sat in the back with Brittany, that she slapped him playfully, and he tickled her to get her to stop. Afterward, they all fell asleep. Lux further testified that he
{19} Based on the evidence, Lux was convicted of gross sexual imposition, in violation of
{20} Upon review of the record, the State presented sufficient evidence to support Lux‘s conviction. According to the State‘s witnesses, Brittany was 12 years old on October 30, 2009. Brittany testified that Lux kissed her on her neck and touched her breasts and pubic area. Officer Misirian and Detective Hillman both testified that Lux confessed to kissing Brittany, touching her breasts, and her vaginal area, and Lux‘s videotaped statements to Detective Hillman at the police station, which were consistent with the officers’ testimony, were played for the jury. Although there was no direct evidence that Lux touched Brittany for the purpose of sexually arousing or gratifying himself or Brittany, Brittany‘s testimony and Lux‘s statements to the officers supported such an inference.
{21} Lux further claims that the jury lost its way and created a manifest injustice when it found him guilty of gross sexual imposition. The credibility of the witnesses and the weight to be given to their testimony were matters for the jury to determine. The jury did not lose its way simply because it chose to believe the State‘s version of the events, which it had a right to do. Although Lux testified at trial that Brittany had kissed him and grabbed his hands and that he did not touch her for the purpose of sexual gratification, the evidence, including Lux‘s interview with Detective Hillman, would allow a reasonable jury to conclude that Lux was a willing participant in the sexual contact and that he received sexual arousal or gratification from their sexual behavior. Reviewing the record as a whole, we cannot say that the evidence weighs heavily against a conviction, that the jury lost its way in choosing to believe the State‘s witnesses, or that a manifest miscarriage of justice occurred. Lux‘s conviction was not against the manifest weight of the evidence.
{22} The second assignment of error is overruled.
II
{23} Lux‘s third assignment of error states:
{24} “APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.”
{25} In his third assignment of error, Lux claims that his trial counsel rendered ineffective assistance when he failed to file a motion to suppress Lux‘s statements to the police.
{26} We review claims of ineffective assistance of counsel under the two prong analysis set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Supreme Court of Ohio in State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). To reverse a conviction based on ineffective assistance of counsel, it must be demonstrated that trial counsel‘s conduct fell below an objective standard of reasonableness and that his errors were serious enough to create a reasonable probability that, but for the errors, the result of the trial would have been different. Strickland, 466 U.S. at 688. Trial counsel is entitled to a strong presumption that his or her conduct falls within the wide range of reasonable assistance. Id.
{27} Lux claims that he should have been informed of his Miranda rights by Officer Misirian before being transported to the police station, because the officer had probable cause to arrest him. Lux further claims that his statements to Detective Hillman should have been suppressed because they were obtained in violation of Miranda. Lux asserts that his counsel acted deficiently when he failed to raise these issues.
{28} In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court held that the State may not use statements stemming from a defendant‘s custodial interrogation unless it demonstrates the use of procedural safeguards to secure the defendant‘s privilege against self-incrimination. Id. at 444. Police are not required to give Miranda warnings to every person that they question, even if the person being questioned is a suspect. State v. Biros, 78 Ohio St.3d 426, 440, 678 N.E.2d 891 (1997). Instead, Miranda warnings are only required for custodial interrogations. Id.
{29} “Custodial interrogation” means questioning initiated by the police after the
{30} Based on the record before us, we find no indication that Lux was in custody when he was questioned by Officer Misirian or by Detective Hillman. Officer Misirian‘s testimony at trial reflects that the officer went to Lux‘s home and that Lux voluntarily agreed to speak with him. They spoke on Lux‘s front porch. Nothing suggests that Lux was restrained in any way or that he was threatened or otherwise coerced by, or under the control of, the officer. Officer Misirian further testified that he had asked Lux if Lux “would be willing to come to the police department for a further interview.” Misirian stated that Lux agreed and Misirian “transported him as a courtesy ride” to the police station. There is no evidence that Lux was in custody when he was transported to the Troy police department.
{31} Lux made incriminating statements to Officer Misirian during their conversation, which may have provided probable cause for Lux‘s arrest, but the existence of probable cause did not convert Lux‘s voluntary conversation with the officer to a custodial interrogation. “The determination whether a custodial interrogation has occurred requires an inquiry into ‘how a reasonable man in the suspect‘s position would have understood his situation.‘” State v. Estepp, 2d Dist. Montgomery No. 16279, 1997 WL 736501 (Nov. 26, 1997), quoting Biros, 78 Ohio St.3d at 440. Neither an officer‘s subjective intent nor the defendant‘s subjective belief is relevant to the determination of whether an individual is in custody for purposes of Miranda. State v. Gaddis, 2d Dist. Montgomery No. 24007, 2011-Ohio-2822, ¶ 18; State v. Severt, 2d Dist. Montgomery No. 24074, 2010-Ohio-5389, ¶ 15.
{32} Upon his arrival at the police station, Lux was interviewed by Detective Hillman. Even assuming that Lux was in custody during that interview, there is no support in the record for Lux‘s assertion that he made statements to Detective Hillman in violation of Miranda. The videotape of Hillman‘s interview with Lux shows that Hillman began the interview by giving Miranda warnings to Lux. Lux indicated that he understood each of his rights and that he was willing to talk with the detective. Lux signed a waiver of rights form.
{33} The fact that Lux had previously made incriminating statements to Officer Misirian prior to Detective Hillman‘s notification of Lux‘s Miranda rights did not render Lux‘s statements inadmissible under Missouri v. Siebert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004). Lux‘s prior statements to Misirian were given voluntarily in a non-custodian context. This case does not involve the “question-first, Mirandize-later” interrogation practice that Siebert aimed to remedy. Accord State v. Sosnoskie, 2d Dist. Montgomery No. 22713, 2009-Ohio-2327, ¶ 62 (concluding that, “[b]ecause the detectives were not obliged to read Sosnoskie his Miranda warnings prior to the first confession, the absence of those warnings do not affect the voluntariness of the second confession, given several days later, after Sosnoskie waived his Miranda rights.“)
{34} Accordingly, we find no basis to conclude that Lux‘s statements to the police
{35} Lux‘s third assignment of error is overruled.
III
{36} Lux‘s first assignment of error states:
{37} “APPELLANT‘S SENTENCE IS VOID.”
{38} In his first assignment of error, Lux claims that his sentence is void for three reasons. First, he asserts that his “sentencing” is void, because the judgment entry indicates that he was classified as a sex offender under
{39} On April 12, 2010, Lux was brought before the trial court for “a 2950 hearing and also for sentencing.” The trial court informed Lux that he was convicted of “a sexually oriented offense by statute. *** [I]t‘s a tier two offense[.]” The court told Lux of his obligations as a Tier II sex offender and stated that a failure to comply with the requirements could result in a separate felony charge. Lux signed a form which acknowledged that he had been informed about his Tier II classification.
{40} The court then proceeding with Lux‘s sentencing. The court heard from defense counsel, the prosecutor, and Lux, and it indicated that it had reviewed the presentence investigation report. The court stated that it considered “the purposes and principles of the sentencing statutes and all the factors of record” and weighed the recidivism
A. Sex Offender Classification
{41} Lux raises that the caption of the judgment entry states, “Entry Determination Hearing Pursuant to
{42} Lux is correct that
B. Court Costs
{43} Next, Lux asserts that he was improperly ordered to pay court costs. He argues that the court failed to consider his present and future ability to pay in accordance with
{44}
{45} Court costs are governed by
{46} Under
{47} A defendant seeking a waiver of the payment of court costs must move for such a waiver at sentencing. State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164; State v. Stutz, 2d Dist. Montgomery No. 24489, 2011-Ohio-5210, ¶ 16. The trial court, however, has no duty to waive court costs, and
{48} Lux did not request a waiver of the payment of court costs at sentencing. Accordingly, he cannot challenge the imposition of court costs on direct appeal.
{49} Moreover, the court‘s imposition of court costs is not erroneous due to the court‘s failure to specify the amount of court costs at sentencing. (The judgment entry imposes costs in the amount of $1,964.34.) The calculation of the amount of court costs is a ministerial act. Threatt at ¶ 21. Thus, we have held that the failure to specify the amount at sentencing does not affect the order‘s finality and the itemized bill may be calculated later. State v. Murillo, 2d Dist. Montgomery No. 21919, 2008-Ohio-201, ¶ 14.
{50} Lux asserts that the trial court‘s imposition of court costs was nevertheless erroneous, because the court did not notify him that any failure to pay court costs could be addressed by an order to perform community service, pursuant to
{51} “*** At the time the judge or magistrate imposes sentence, the judge or magistrate shall notify the defendant of both of the following:
{52} “(a) If the defendant fails to pay that judgment or fails to timely make payments towards that judgment under a payment schedule approved by the court, the court may order the defendant to perform community service in an amount of not more than forty hours per month until the judgment is paid or until the court is satisfied that the defendant is in compliance with the approved payment schedule.
{53} “(b) If the court orders the defendant to perform the community service, the defendant will receive credit upon the judgment at the specified hourly credit rate per hour of community service performed, and each hour of community service performed will reduce the judgment by that amount.”
{54} The trial court did not provide these notifications to Lux at the sentencing hearing, and the failure do to so was contrary to the statute. The Ohio appellate districts are split, however, as to whether we can review the lack of notification on direct appeal. Several appellate districts have held that the issue is not ripe for adjudication until the defendant has failed to pay court costs and the trial court has ordered the defendant to perform community service. E.g., State v. Gates, 11th Dist. Portage No. 2011-P-0001, 2011-Ohio-5711; State v. Barkley, 185 Ohio App.3d 686, 2009-Ohio-5549, 925 N.E.2d 626 (10th Dist.); State v. Kearse, 3d Dist. Shelby No. 17-08-29, 2009-Ohio-4111; State v. Nutter, 12th Dist. Brown No. CA2008-10-009, 2009-Ohio-2964.
{55} On the other hand, other appellate districts have addressed the matter and found the failure to provide the notice required by
{56} The Ohio Supreme Court has accepted review of the lack of notification issue on the Twelfth District‘s certification of a conflict between its holding in State v. Smith, 12th Dist. Warren No. CA2010-06-057, 2011-Ohio-1188, which concluded that the issue was not ripe for review, and the Fourth District‘s holding in Moss, which addressed the issue and found prejudicial error.1 State v. Smith, 129 Ohio St.3d 1426, 2011-Ohio-3740, 951 N.E.2d 89 (S.Ct. No. 2011-0811).
{57} We have not previously addressed whether the trial court‘s failure to provide the required notification under
{58} Nevertheless, the Ohio Supreme Court has emphasized that “no judge has the authority to disregard the law by ignoring a statutorily mandated term.” State v. Jarvis, 4th Dist. Jackson No. 10CA11, 2011-Ohio-6252, ¶ 6, fn.1, citing State ex rel. DeWine v. Burge, 128 Ohio St.3d 236, 2011-Ohio-235, 943 N.E.2d 535, ¶ 19. “A trial court does not have the discretion to exercise its jurisdiction in a manner that ignores mandatory statutory
{59} As stated above, the trial court did not notify Lux that he could be ordered to perform community service if he failed to pay the costs of prosecution imposed under
C. Post-Release Control
{60} Finally, Lux claims that his sentence is void, because the trial court did not properly impose post-release control. Lux states that the trial court incorrectly informed him at the sentencing hearing that periods of post-release control “could be consecutive.” He further asserts that the judgment entry erroneously states that post-release control was optional and that he could be returned to prison for up to nine months if he violated post-release control.
{61} According to
{62} At the sentencing hearing, the trial court informed Lux: “In your case, Mr. Lux, there‘s a mandatory five years post release control. When you get out you will have rules and regulations you‘ll have to follow for a five year period. This is a sex offense and it carries mandatory five years.” Lux‘s judgment entry included a mandatory term of five years post-release control. It stated: “Once Defendant is released from his term of incarceration at the Ohio Department of Rehabilitation and Corrections, he has been notified that he is subject to mandatory Post Release Control for five years ordered by the Adult Parole Authority.”
{63} Lux argues that the trial court imposed an optional period of post-release control. He cites to another portion of the judgment entry that reads: “After prison release, if post-release control is imposed, for violating post release control conditions, the adult parole authority or parole board could impose a more restrictive or longer control sanction, return defendant to prison for up to nine months for each violation, up to a maximum of 50 percent of the stated term.” This provision indicates the penalty that may be imposed if post-release control were violated. Although it includes the phrase “if post-release control is imposed,” the paragraph does not reflect that Lux‘s period of post-release control was optional.
{64}
{65} At sentencing, the trial court told Lux, “If you violate any of those [rules and regulations,] the Adult Parole Authority can send you back to the institution for a period not to exceed one-half the amount of time you would have served in the first place.” As quoted above, the judgment entry further states that “the adult parole authority or the parole board could impose a more restrictive or longer control sanction, return defendant to prison for up to nine months for each violation, up to a maximum of 50 percent of the stated term.”
{66} Lux asserts that the sentencing entry is incorrect, because it states that he could be returned to prison for a period of nine months. We disagree. The judgment entry reflects the language of
{67} Lux further claims that the trial court erroneously told him at sentencing that post-release control could be imposed as a prison term consecutively to any prison term for a
{68} “If you were out and you picked up another felony charge and got convicted of it after you got release on Post release control[,] your new sentencing Judge can take the balance of your Post release control and run it consecutive to your new sentence and order the whole thing to be served in the pen. So here‘s how that happens. If you‘re out and you get picked up[,] let‘s say hypothetically for a felony five theft offense, maximum penalty twelve months, and you would get ten months in the pen and you‘re still on post release control, you‘re in for your first year of post release control, you‘d have four years post release control left, your sentencing Judge could take that four years and run it consecutive to the one and you‘d be doing five years on a theft offense. That‘s how that works.”
{69} Lux asserts that the trial court‘s statement is contrary to
{70} Rather,
{71} “(A) Upon the conviction of or plea of guilty to a felony by a person on post-release control at the time of the commission of the felony, the court may terminate the
{72} “(1) In addition to any prison term for the new felony, impose a prison term for the post-release control violation. The maximum prison term for the violation shall be the greater of twelve months or the period of post-release control for the earlier felony minus any time the person has spent under post-release control for the earlier felony. In all cases, any prison term imposed for the violation shall be reduced by any prison term that is administratively imposed by the parole board as a post-release control sanction. A prison term imposed for the violation shall be served consecutively to any prison term imposed for the new felony. The imposition of a prison term for the post-release control violation shall terminate the period of post-release control for the earlier felony.
{73} “(2) Impose a sanction under sections 2929.15 to 2929.18 of the Revised Code for the violation that shall be served concurrently or consecutively, as specified by the court, with any community control sanctions for the new felony.”
{74} In accordance with
{75} In summary, the trial court correctly classified Lux as a Tier II sex offender and properly ordered him to pay court costs. The court properly informed Lux at the sentencing hearing that he was subject to a mandatory five-year period of post-release
{76} Lux‘s first assignment of error is overruled in part and sustained in part.
IV
{77} The trial court‘s judgment will be affirmed. The trial court may correct any typographical errors in the judgment entry, consistent with this opinion, through a nunc pro tunc entry.
FAIN, J. and DONOVAN, J., concur.
Copies mailed to:
James D. Bennett
Mark A. Deters
Hon. Robert J. Lindeman