State v. MayState v. May
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR RESENTENCING
RELEASED AND JOURNALIZED: December 2, 2010
Thomas A. Rein
940 Leader Building
526 Superior Avenue
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Brent C. Kirvel
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:
{¶ 1} Appellant, Glen May, appeals his convictions for rape of a child under 13, rape, several counts of gross sexual imposition, and disseminating material harmful to a minor. He claims his convictions were unsupported by sufficient evidence and are against the manifest weight of the evidence, that he was denied a fair trial by improper testimony, and that the trial court did not properly inform him of postrelease control. After a thorough review of the record and apposite law, we affirm in part, reverse in part, and remand for resentencing.
{¶ 3} D.L. described the next incident, which took place in the winter of 2007, where appellant attempted to engage in anal sex with her while she was washing dishes. She testified that appellant “tried to stick his private part in me but it didn’t go.” After the incident was over, D.L. went to the bathroom and cleaned blood from her rectum.
{¶ 4} After moving to a new apartment on Central Avenue, D.L. had a sleepover with her close friend, S.B. (age 13), during the winter of 2007-2008. D.L. testified that appellant made her “suck his private part,” then asked her to get S.B. to do the same. D.L. and S.B. both testified that the two went down to the kitchen and that appellant made S.B. place her mouth on his penis. S.B. also testified that appellant put his penis in her vagina. The girls differ as to the location in the house where S.B. performed oral sex and
{¶ 5} In April 2008, D.L.’s behavior and grades in school caused R.W. and appellant to discipline her. During the ensuing argument, D.L. blurtеd out that appellant had been molesting her. D.L. also told her cousin Kayla and her teachers, Ms. Reynolds and Ms. McMillan. D.L.’s teachers reported the allegations to the appropriate authorities, and the Cuyahoga County Department of Children and Family Services (“CCDCFS”) became involved.
{¶ 6} After an investigation by the Cleveland Metropolitan Housing Authority (“CMHA”) police, the Cleveland police, and CCDCFS, appellant was indicted in two criminal cases, which were consolidated for trial. Appellant faced charges of rape involving a child under the age of 13, rape, gross sexual imposition, kidnapping, and disseminating matter harmful to juveniles.2
{¶ 7} Appellant appeals assigning four errors for review.3
Law and Analysis
Sufficiency and Manifest Weight
{¶ 8} In his first and second arguments, appellant claims his convictions are based on insufficient evidenсe and that they are against the manifest weight of the evidence.
{¶ 9} Whether the evidence is legally sufficient to sustain a verdict is a question of law. State v. Robinson (1955), 162 Ohio St. 486, 124 N.E.2d 148. A conviction based on legally insufficient evidence constitutes a denial of due process. Tibbs v. Florida (1982), 457 U.S. 31, 45, 102 S.Ct. 2211, 72 L.Ed.2d 652, citing Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.
{¶ 10} Where there is substantial evidence upon which the trier of fact has based its verdict, a reviewing court abuses its discretion in substituting its judgment for that of the trier of fact as to the weight and sufficiency of thе evidence. State v. Nicely (1988), 39 Ohio St.3d 147, 156, 529 N.E.2d 1236.
{¶ 12} Sufficiency of the evidencе is subjected to a different standard than is manifest weight of the evidence.
{¶ 13} The First District, in State v. Martin (1983), 20 Ohio App.3d 172, 485 N.E.2d 717, has set forth the proper test to be utilized when addressing the issue of manifest weight, stating:
{¶ 14} “The court, reviewing 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 thаt the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.” Id. at paragraph three of the syllabus, citing Tibbs v. Florida, supra.
{¶ 15} In the criminal case brought against appellant involving D.L., he was charged with kidnapping, rape of a child under 13, three counts of gross sexual imposition, and disseminating matter harmful to juveniles. In the case involving S.B., hе was charged with two counts of rape, two counts of gross sexual imposition, and two counts of kidnapping.
{¶ 16}
{¶ 17} D.L. testified that appellant made her place her mouth on his penis and then, using her hair, made her go back and fоrth over it. This constitutes an act of rape and a restraint of liberty sufficient for kidnapping.4 D.L. also testified that she had just turned 12 a short time before the incident. Therefore, all the required elements of appellant’s first rape and kidnapping convictions were supported by evidence before the court.
{¶ 18} Appellant was also convicted of the rape of S.B., in violation of
{¶ 19} The Ninth District has used this determination of force where the victim of sexual abuse was 13 years old and the perpetrator “occupied a position with respect to the child that allowed him to be able to exert force by subtle and psychological means: he was a trusted family friend, he was bigger and older than the child, and was in charge of the child during the visits at defendant’s home.” State v. Musgrave (Dec. 3, 1998), Summit App. No. 18260. This court found this analysis persuasive in applying such a relaxed standard in State v. Milam, Cuyahoga App. No. 86268, 2006-Ohio-4742.
{¶ 20} D.L. and S.B. both testified that they complied with appellant’s demands for sex because they were afraid of what would happen if they refused. S.B. testified she was crying and that D.L. told her “that it was going to happen anyway, so for [S.B.] to do it just to get it over with.” Although the two never testified that apрellant threatened them, he occupied a parental relationship with D.L., and S.B. was in his care and supervision when the sexual acts occurred. S.B. was 13 years old and appellant was much older, larger, and stronger. S.B. testified that appellant removed her jeans and underwear and that she was crying. Sufficient evidence of force
{¶ 21} Appellant was also convicted of several counts of gross sexual imposition under
{¶ 22} “No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more other persons to have sexual contact when any of the following applies:
{¶ 23} “(1) The offender purposely compels the other person, or one of the other persons, to submit by force or threat of force.
{¶ 24} “* * *
{¶ 25} “(4) The other person, or one of the other persons, is less than thirteen years of age, whether or not the offender knows the age of that person.”
{¶ 26} D.L. testified appellant tried to put his penis into her rectum. She also testified that she was 12 years old at the time. D.L. and S.B. both testified that appellant made them touch each other’s breasts and that he touched their breasts. Therefore, a reasonable trier of fact could examine this evidence and conclude that appellant committed gross sexual imposition.
{¶ 28} D.L. testified that appellant made her watch a pornographic movie where the actors were completely naked and engaging in various sex acts.
{¶ 29} Appellant’s convictions for rape, gross sexual imposition, and disseminating matter harmful to juveniles are supported by direct testimony of two victims. Viewing this evidence in a light favorable to the state, each element necessary to sustain the convictions is satisfied.
{¶ 30} Appellant also argues that his convictions are against the manifest weight of the evidence. He argues that the victims’ testimony is contradictory and incredible.
{¶ 31} It is true that, at times, the girls’ testimony differs in some respects, but each girl’s testimony, as elucidated above, was clear that appellant molested her. Appellant’s own actions after being arrested also provide corroboration for their testimony. While in jail awaiting trial, appellant attempted to оbtain a letter from D.L. recanting her earlier
Improper Testimony
{¶ 32} In his third assignment of error, appellant argues that he was denied a fair trial when a social worker made improper comments while testifying. Appellant argues a CCDCFS social worker, Derrick Lockett, inappropriately encroached upon the jury’s role as the arbiter of credibility.
{¶ 33} In his testimony, Lockett described a conversation he had with appellant about the allegations of sexual assault lodged against him. Lockett testified that appellant did not make eye contact during the portion of their conversation dealing with the allegations. The state then asked if Lockett found that disturbing. Lockett answered that he did.
{¶ 34} Appellant relies on State v. Boston (1989), 46 Ohio St.3d 108, 545 N.E.2d 1220, whеre the Ohio Supreme Court held that it was improper for an expert to testify about the veracity of allegations made by a child victim who
{¶ 35} In this case, Lockett did not initially express any opinion about thе veracity of appellant’s statements. The Tenth District has held that “[b]ecause [a social worker’s] testimony did not include any expressions of opinion as to whether [the victim] was telling the truth, her testimony regarding [the victim’s] statements did not violate Boston, and any attempt to exclude the testimony on that basis would not have been successful.” State v. Cashin, Franklin App. No. 09AP-367, 2009-Ohio-6419, ¶20. See, also, State v. Dixon, Richland App. No. 03 CA 75, 2004-Ohio-3940, ¶21 (“[The nurse] was being questioned at the time concerning the girl victim’s demeanor and affect during her examination, such as her poor eye contact. * * * Appellant herein provides no authority that the questioning at issue was the equivalent of an opinion as to veracity, as analyzed in Boston.”).
{¶ 36} “Under
{¶ 37} Lockett was asked about appellant’s demeanor during a conversation regarding the allegations lodged against appellant. This was a fact in issue at trial and one, under
{¶ 38} The trial court did not abuse its discretion in admitting the demeanor testimony. Also, excluding this single improper question regarding Lockett’s reaction would not have changed the outcome of the trial. Therefore, appellant’s third assignment of error is overruled.
Postrelease Control
{¶ 39} In appellant’s final assignment of error, he argues that the trial court did not properly inform him of postrelease control at sentencing.
{¶ 41} Postrelease control is a “‘period of supervisiоn by the adult parol authority after a prisoner’s release from imprisonment * * *.’” Woods v. Telb, 89 Ohio St.3d 504, 509, 2000-Ohio-171, 733 N.E.2d 1103, quoting
{¶ 42} The trial court informed appellant that postrelease control was mandatory for five years. It also informed appellant that should he violate postrelease control, he could receive an additionаl penalty up to 12 and-one-half years, but never informed him what that penalty could consist of. The language used, “further administrative life[,]” is unclear and the court did not specify that additional prison time could be imposed.
{¶ 43} The General Assembly provided courts with a mechanism to correct errors regarding the imposition of postrelease control.
Allied Offenses
{¶ 44} At sentencing, appellant objected to being sentenced for both rape and kidnapping because they were allied offenses. The state conceded and suggested that the court merge the offenses into thе respective rape convictions. The court indicated that it would dismiss the two kidnapping counts in CR-524278 and the one in CR-519564. The court did dismiss Counts 5 and 6 in CR-524278, but it failed to do so in CR-519564. The journal entry memorializing appellant’s sentence in CR-519564 indicates appellant is to serve a ten-year sentence for kidnapping with a sexual motivation specification.
{¶ 45} The Ohio Supreme Court has held that failure to merge allied offenses for sentencing constitutes plain error and must be reversed on appeal. State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶31-32.
{¶ 46}
{¶ 48} Appellant’s convictions are supported by evidеnce in the record. A lack of physical evidence does not require this court to overturn appellant’s convictions as he claims. The testimony of the victims and appellant’s own statements supply the necessary evidence to affirm. Appellant’s trial was not compromised by unfair testimony as he claims. The social worker’s testimony about a lack of eye contact he had with appellant during an interview does not implicate Boston. The testimony was admitted because the witness did not offer any opinion about appellant’s truthfulness, but merely commented on personal observations of appellant’s demeanor. Further questioning by the state about the social worker’s reaction was improperly allowed, but did not amount to reversible error.
{¶ 49} Appellant must be resentenced because the journal entry setting forth his convictions incorrectly lists a kidnapping conviction that the trial court, the appellant, and the state agreed should have merged. Finally, appellant must be properly informed of the terms of postrelease control at resentencing.
Judgment affirmed in part, reversed in part, and remanded for resentencing for proceedings consistent with this opinion.
It is ordered that the parties bear their own costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to
FRANK D. CELEBREZZE, JR., JUDGE
MARY EILEEN KILBANE, P.J., CONCURS WITH MAJORITY AND WITH SEPARATE CONCURRING OPINION;
COLLEEN CONWAY COONEY, J., CONCURS (WITH SEPARATE CONCURRING OPINION)
COLLEEN CONWAY COONEY, J., CONCURRING:
{¶ 50} I concur in the majority opinion but write separately to stress that May’s argument in the third assignment of error is worthy of a cautionary warning to the prosecuting attorney. The prosecutor improperly asked the social worker if he found it “disturbing” that May had almost no eye contact. Although it may have been allowable to ask about May’s demeanor, the witness should never be permitted to state his own judgment about the lack of eye contact. However, I agree that this error is harmless in light of all the evidence presented.
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APPENDIX
I. “The state failed to present sufficient evidence to sustain a conviction.”
II. “Appellant’s convictions are against the manifest weight of the evidence.”
III. “Appellant was denied a fair trial by a social worker’s improper comments while testifying.”
IV. “Appellant’s sentence must be vacated because the trial court did not properly advise him at sentencing of postrelease control.”
Notes
“* * *
“(4) To engage in sexual activity, as defined in