STATE OF OHIO v. RAYSHAWN MCCOY
No. 107029
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
March 14, 2019
[Cite as State v. McCoy, 2019-Ohio-868.]
Yarbrough, J.,* Boyle, P.J., and Celebrezze, J.
JOURNAL ENTRY AND OPINION; JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
RELEASED AND JOURNALIZED: March 14, 2019
Allison S. Breneman 1200 West 6th Street, Suite 203 Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Michael C. O‘Malley Cuyahoga County Prosecutor
Melissa Riley Assistant County Prosecutor Justice Center, 9th Floor 1200 Ontario Street Cleveland, OH 44113
{1} An altercation that dеfendant-appellant Rayshawn McCoy had with his victim-girlfriend turned into several hours of torture where he prevented her from leaving by strangling her to the point that she lost consciousness. The matter proceeded to trial, and the jury found McCoy guilty of one count of kidnapping. The issues on appeal concern the evidence supporting the conviction, whether the court erred by refusing to sever the trial from charges made by a different victim, preindictment delay, and the sentence.
I. Evidence of Kidnapping
{2} The first and second assignments of error complain about the weight and sufficiency of the evidence supporting the kidnapping count.
{3} We review complaints about the sufficiency of the evidence supporting a conviction by viewing the evidеnce in the light most favorable to the prosecution to determine whether any “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, ¶ 34, quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
{4} The state charged McCoy with kidnapping in violation of
{6} This evidence that the victim tried to get away from McCoy, but that he continued to smother and choke her into submission, was sufficient to prove the restraint element of kidnapping. In addition, a rational trier of fact could find that McCoy terrorized the victim: first, by repeatedly assaulting her and smothering her into unconsсiousness and, second, by humiliating her by denying her access to the bathroom and forcing her to remain in soiled clothing.
{8} “Consistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment.” Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 76 L.Ed. 356 (1932). It is thus within the province of the trier of fact to determine issues of credibility and the weight to be accorded that testimony with respect to each individual count. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. The acts charged on those counts for which the jury returned a verdict of not guilty were different in kind from the acts detailed in the kidnapping count. Because the facts of the kidnapping stand alone, there was no apparent inconsistency in the verdict. We thus have no basis for finding that the jury lost its way by finding McCoy guilty of kidnapping.
II. Motion to Sever
{9} The indictment originally charged McCoy with acts committed against two victims almost two years apart: Jane Doe 1 (the victim in the instant case) and Jane Doe 2. McCoy filed a motion seeking a separate trial for each victim, but the court denied the motion.
{10} Two or more offenses may be charged in the same indictment if the offenses charged are of similar charaсter or are based on the same transaction, or are part of a course of criminal conduct. See
{11} McCoy can show no prejudice from joinder because the jury acquitted him of all counts relating to Jane Doe 2. This showed that the jury was able to differentiate the evidence between the two Jane Does and did not improperly use evidence of guilt with respect to one victim as proof of guilty going to the other victim. See
III. Preindictment Delay
{12} The kidnapping occurred in October 2007. The police investigated, but later dropped the investigation whеn the victim stated that she did not wish to pursue charges against McCoy, with whom she had reconciled. Nevertheless, DNA swabs were taken by medical personnel who administered a rape kit at the time and, some ten years later, the rape kit was testеd and identified McCoy. The victim then agreed to prosecute. McCoy asked the court to dismiss the indictment on grounds of preindictment delay, arguing that he suffered actual prejudice from the delay because “he may have fact witnesses who would have been able to verify that the stories provided were fabricated” and “the cell phone records that would have been available during this period of time would have demonstrated and the text messages would have demonstrated whаt this dispute was about.” The court found no prejudice and denied the motion to dismiss.
{14} McCoy did not show actual prejudicе — he relied on speculation. For example, he did not name any witnesses who would verify his claim that the victim fabricated her accusation; instead, he gave the names of three people who he said witnessed an argument between he and the victim (McCoy was apparently dating another woman) and who “would have been able to testify that they heard the nature of the argument, itself, which would give rise to the motivation for which this charge was lodged.” But having knowledge of why the argument occurred would not have refuted the victim‘s testimony of what happened inside the apartment between McCoy and the victim. Even if McCoy were blameless and the victim started the fight, that fact would not excuse his criminal actions inside the apartment. And MсCoy offered nothing to show that any of the three people were actually present when the criminal acts occurred. This failed to demonstrate “a viable, tangible connection between the missing evidence or the unavailablе witness to the defense of the case.” State v. Walker, 8th Dist. Cuyahoga No. 106414, 2018-Ohio-3669, ¶ 22, citing State v. Richardson, 2016-Ohio-5843, 70 N.E.3d 1175, ¶ 13 (8th Dist.).
IV. Sexual Motivation Specification
{16} In its sentencing entry, the court stated that the jury found McCoy guilty of kidnapping with a sexual motivation specification. In fаct, the jury found McCoy not guilty of the sexual motivation specification. The state concedes that the court erred in this respect. We agree and sustain this assignment of error and remand with instructions for the court to amend its sentencing entry.
V. Sentence
{17} The court sentenced McCoy to ten years in prison which, at the time he committed his crime in October 2007, was the maximum sentence for a felony of the first degree (the current maximum for a felony of the first degree is 11 years). McCoy complains that the court failed to appropriately apply the serious and recidivism factors necessary to impose a sentence of that length and that he should have received a minimum sentence.
{18} A trial judge must do two things before imposing sentencing: first, the judge must еnsure that the sentence falls within the applicable statutory range for a particular degree of felony; second, the judge must consider the purposes of felony sentencing set forth in
{19} What McCoy really argues is that his sentence is too long and that he should have received the statutory minimum sentence. The law is clear, however, that a trial court has full discretion to impose any term of imprisonment within the statutory range, as long as it considers the sentencing purposes in
{20} The remarks made by the court at sentencing showed that it specifically considerеd the violence of the acts charged in the case, McCoy‘s prior history of criminal conduct, his repeated failures to comply with postrelease control (some of which were in cases presided by the trial judge), the seriousness оf the acts committed against the victim, and his lack of remorse. For his part, McCoy offered nothing of any substance in mitigation apart from apologizing to the victim for “any of the abuse or the arguments or the things that we went through that were not
{21} Judgment affirmed in part, reversed in part, and remanded to the trial court for further proceedings consistent with this opinion.
It is оrdered that appellant and appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the trial court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
*STEPHEN A. YARBROUGH, JUDGE
MARY J. BOYLE, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
*(Sitting by Assignment: Judge Stephen A. Yarbrough, retired, of the Sixth District Court of Appeals).