STATE OF OHIO, PLAINTIFF-APPELLEE, v. JOSHUA MCCOY, DEFENDANT-APPELLANT.
CASE NO. 9-18-23
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY
September 21, 2020
2020-Ohio-4511
Appeal from Marion County Common Pleas Court Trial Court No. 17-CR-0532 Judgment Affirmed
APPEARANCES:
Todd A. Workman for Appellant
Nathan R. Heiser for Appellee
{1} Defendant-appellant, Joshua McCoy (“McCoy“), appeals the July 16, 2018 judgment of sentence of the Marion County Court of Common Pleas. For the reasons that follow, we affirm.
{2} This case arises from a December 15, 2017 incident in which McCoy struck and allegedly sexually assaulted his five-year-old niece, J.G. On December 27, 2017, the Marion County Grand Jury indicted McCoy on Count One of rape in violation of
{3} On April 19, 2018, the Marion County Grand Jury issued a superseding indictment which included five counts: Count One of rape in violation of
{4} The case proceeded to a jury trial on April 24-26, 2018. (Doc. No. 113). At the close of the State‘s case, McCoy made a motion for acquittal under
{5} A sentencing hearing was held on July 10, 2018. (Id.). Pursuant to the agreement of the parties, the trial court found that Counts One, Two, and Three merged for the purpose of sentencing. (July 10, 2018 Tr. at 12-13); (Doc. No. 113). The trial court further found that Counts Four and Five merged for the purpose of sentencing. (July 10, 2018 Tr. at 13); (Doc. No. 113). Accordingly, the State elected to sentence McCoy on Counts One and Five. (Doc. No. 113). The trial court sentenced McCoy to a sentence of life imprisonment without parole on Count One
{6} On July 18, 2018, McCoy filed his notice of appeal. (Doc. No. 114). He raises four assignments of error for our review. We consider his assignments of error in the order presented and, for ease of discussion, we will address McCoy‘s first two assignments of error together.
Assignment of Error No. I
The trial court/jury erred to the prejudice of the Defendant/Appellant in entering guilty verdicts to the one count of Rape, the one count of Abduction, and the one count of Felonious Assault as the evidence was insufficient to support the convictions.
Assignment of Error No. II
The trial court/jury erred to the prejudice of the Defendant/Appellant in entering a guilty verdict to the one count of Rape, the one count of Abduction, and the one count of Felonious Assault as they are not supported by the manifest weight of the evidence.
{8} Manifest “weight of the evidence and sufficiency of the evidence are clearly different legal concepts.” State v. Thompkins, 78 Ohio St.3d 380, 389 (1997). Accordingly, we address each legal concept individually.
{9} “An appellate court‘s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus, superseded by state constitutional amendment on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997). Accordingly, “[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” Id. “In deciding if the evidence was sufficient, we neither resolve evidentiary conflicts nor assess the credibility of witnesses, as both are functions reserved for the trier of fact.” State v. Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-4775, ¶ 33, citing State v. Williams, 197 Ohio App.3d 505, 2011-Ohio-6267, ¶ 25 (1st Dist.).
{10} On the other hand, in determining whether a conviction is against the manifest weight of the evidence, a reviewing court must examine the entire record, “‘weigh[ ] the evidence and all reasonable inferences, consider[ ] the credibility of witnesses and 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.‘” Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A reviewing court must, however, allow the trier of fact appropriate discretion on matters relating to the weight of the evidence and the credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight standard “[o]nly in exceptional cases, where the evidence ‘weighs heavily against the conviction,’ should an appellate court overturn the trial court‘s judgment.” State v. Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.
{11} “Circumstantial evidence and direct evidence inherently possess the same probative value and therefore should be subjected to the same standard of proof.” Jenks, 61 Ohio St.3d at paragraph one of the syllabus. “A conviction can
{12} As an initial matter, although McCoy challenges the sufficiency and weight of the evidence supporting the jury‘s findings of guilt as to the abduction count under Count Three of the indictment, we need not address those arguments. See State v. Miller, 3d Dist. Logan No. 8-19-02, 2019-Ohio-4121, ¶ 11. “‘When counts in an indictment are allied offenses, and there is sufficient evidence to support the offense on which the state elects to have the defendant sentenced, the appellate court need not consider the sufficiency [or weight] of the evidence on the count that is subject to merger because any error would be harmless’ beyond a reasonable doubt.” Id., quoting State v. Ramos, 8th Dist. Cuyahoga No. 103596, 2016-Ohio-7685, ¶ 14, citing State v. Powell, 49 Ohio St.3d 255, 263 (1990),
(A)(1) No person shall engage in sexual conduct with another person who is not the spouse of the offender * * *, when any of the following applies:
* * *
(b) The other person is less than thirteen years of age, whether or not the offender knows the age of the other person.
{14} The jury also found that two specifications applied to McCoy‘s rape conviction. The first specification alleged that the victim was less than ten years of
{15} The offense of felonious assault is codified in
(a) Any mental illness or condition of such gravity as would normally require hospitalization or prolonged psychiatric treatment;
(b) Any physical harm that carries a substantial risk of death;
(c) Any physical harm that involves some permanent incapacity, whether partial or total, or that involves some temporary, substantial incapacity;
(d) Any physical harm that involves some permanent disfigurement or that involves some temporary, serious disfigurement;
(e) Any physical harm that involves acute pain of such duration as to result in substantial suffering or that involves any degree of prolonged or intractable pain.
{16} At trial, the State first offered the testimony of Jeremy Gilbert (“Gilbert“), McCoy‘s brother and J.G.‘s father. (Apr. 24-26, 2018 Tr. at 152-154). Gilbert testified that his daughter, J.G., was born in 2012 and was five years old at the time of the trial and at the time of the relevant events. (Id. at 153).
{17} Gilbert also testified to a series of events that occurred on December 14-15, 2017. (Id. at 154). Gilbert stated that he, J.G., and McCoy had moved into a house at 626 Park Street in Marion, Ohio several days prior to December 14, 2017. (Id. at 154-156). According to Gilbert, he and McCoy spent the evening of
{18} On cross-examination, Gilbert admitted that when he left the house to drive to his sister‘s house in Lima, both he and McCoy were “pretty intoxicated.” (Id. at 165-167). Gilbert stated that when he left the house, J.G. was in bed and McCoy was still awake. (Id. at 167).
{19} Next, Ryan Strange (“Strange“), McCoy‘s cousin, testified that he received a telephone call from McCoy at 7:28 a.m. on December 15, 2017 asking him to drive McCoy to a court appointment in Lima that morning. (Apr. 24-26,
{20} Strange arrived at 626 Park Street and observed J.G. sleeping on the couch. (Id. at 174-175). Strange immediately noticed that J.G. had two black eyes. (Id. at 175). Strange identified State‘s Exhibit 20 as a photograph of J.G. with two black eyes. (Id. at 175-176). (See State‘s Ex. 20). Strange stated that although J.G. is depicted with two black eyes in State‘s Exhibit 20, she actually looks “a lot better” in the photograph than she did when he observed her on the morning of December 15, 2017. (Apr. 24-26, 2018 Tr. at 176). (See State‘s Ex. 20). Specifically, in the photograph, her eyes are depicted with some redness around them, but when he observed J.G., her eyes were “very dark” and black. (Apr. 24-26, 2018 Tr. at 176). (See State‘s Ex. 20). Strange further stated that J.G. would not speak to him. (Apr. 24-26, 2018 Tr. at 175).
{21} Strange testified that right before he, McCoy, and J.G. entered Strange‘s car to begin the drive to Lima, Strange observed McCoy hug J.G. and tell her, “I‘m sorry that I couldn‘t get the bad man. I never wanted the bad man to hurt
{22} Strange stated that after they dropped off McCoy at the courthouse in Lima, Strange and J.G. waited in his car in a parking lot nearby. (Id. at 183). Strange stated that he was not aware that people were looking for J.G. until several law enforcement officers approached his vehicle searching for J.G. (Id. at 183, 185).
{23} The State‘s next witness was Lieutenant Chad Lauck (“Lieutenant Lauck“), a patrol supervisor with the Allen County Sheriff‘s Department. (Apr. 24-26, 2018 Tr. at 191-192). Lieutenant Lauck testified that on December 15, 2017, he received a message from a woman who was concerned about her child‘s whereabouts and well-being after learning that the child‘s father, Gilbert, had been arrested by the agency overnight. (Id. at 192-194). After contacting several of Gilbert‘s family members, Lieutenant Lauck spoke to Gilbert‘s sister, who notified him that McCoy was en route to the Allen County Municipal Court for a court appearance and that J.G. and another man were in the car with him. (Id. at 194-195). Gilbert‘s sister stated that the little girl appeared to be injured. (Id.).
{24} Lieutenant Lauck testified that he was concerned about the girl‘s safety, so he went to the municipal court to speak to McCoy. (Id. at 195). Lieutenant Lauck located McCoy and inquired into the whereabouts of the girl. (Id. at 196-197). According to Lieutenant Lauck, McCoy initially told him that the girl
{25} At that time, Lieutenant Lauck and several other law enforcement officers located Strange and J.G. in a vehicle nearby the courthouse. (Id. at 198-199). Lieutenant Lauck testified that he observed J.G. in the back seat of the vehicle and was concerned because her face appeared swollen and she had discoloration around her eyes. (Id. at 199-200). Lieutenant Lauck testified that the girl depicted in State‘s Exhibit 20 was the girl that he observed in the back seat of the car. (Id. at 200). (See State‘s Ex. 20). Lieutenant Lauck testified that one of the law enforcement officers at the scene carried the girl into the Lima Police Department. (Apr. 24-26, 2018 Tr. at 200-201). When they arrived in the building, one of the officers called for an ambulance. (Id.).
{26} On cross-examination, Lieutenant Lauck stated that when he observed the girl in the car, it was “quite apparent there was something wrong.” (Id. at 203). However, according to Lieutenant Lauck, she was not talking. (Id. at 204).
{27} Next, the State offered the testimony of Investigator Deana Lauck (“Investigator Lauck“), an investigator with the Lima Police Department. (Id. at 206-207). Investigator Lauck testified that she was on duty on December 15, 2017, when she observed several law enforcement officers bringing J.G. down the
{28} After observing J.G.‘s condition, Investigator Lauck attempted to talk to J.G. and noted that the child “seemed to be very dazed.” (Id. at 209). Investigator Lauck testified that J.G. did not appear interested in acknowledging the male law enforcement officers, but J.G would acknowledge her by nodding or shaking her head in response to questions. (Id. at 209-210). Investigator Lauck testified that J.G. seemed “like she was in shock.” (Id. at 211). Shortly thereafter, medical personnel arrived and J.G. “shut down.” (Id.). However, J.G. continued to acknowledge Investigator Lauck, so she accompanied J.G. to the hospital and stayed with her the entire time that she was there. (Id. at 211-213).
{29} Lieutenant Ed Brown (“Lieutenant Brown“), an officer with the Marion County Sheriff‘s Office, testified that on the evening of December 15, 2017 he was dispatched to 626 Park Street to take photographs and collect evidence. (Id. at 244-245, 247).
{32} The State next offered the testimony of Rhonda Norris (“Norris“), a SANE at St. Rita‘s Medical Center (“St. Rita‘s“). (Id. at 280-281). The State moved the trial court to recognize Norris as an expert in sexual assault nursing examination, and the trial court granted the State‘s motion without objection. (Id. at 284).
{33} Norris testified that on December 15, 2017, she was called to St. Rita‘s to assess a young girl who had been found in the back seat of a car and had sustained some injuries. (Id. at 284-285). When Norris arrived at the hospital, she came into contact with J.G. and immediately observed that the young girl had “significant injuries to the face.” (Id. at 285-286). Norris testified that she tried to talk to J.G. and build a rapport. (Id. at 293). However, J.G. was “very quiet” and reluctant to talk to Norris. (Id. at 289, 293). Accordingly, J.G. would not disclose to Norris what had happened to her or how she sustained the injuries. (Id. at 293).
{34} Norris stated that she performed a sexual assault examination on J.G. (Id. at 290, 293). Norris identified State‘s Exhibit 13 as a printout of J.G.‘s medical records from her visit to St. Rita‘s on December 15, 2017. (Id. at 287-288). (See State‘s Ex. 13). Norris further identified State‘s Exhibit 13-A as the documentation
{35} Norris also identified State‘s Exhibit 14 an electronic copy of the photographs that she took during her sexual assault examination of J.G. on December 15, 2017. (Apr. 24-26, 2018 Tr. at 294-295). (See State‘s Ex. 14). Norris described the injuries she observed on J.G.‘s body during the sexual assault examination and identified the injuries on the photographs contained in State‘s Exhibit 14. (Apr. 24-26, 2018 Tr. at 298-307). (See State‘s Ex. 14).
{36} Norris testified that she observed heavy bruising around J.G.‘s eyes and neck. (Apr. 24-26, 2018 Tr. at 298, 305). (See State‘s Ex. 14). Norris stated that the bruising around J.G.‘s eyes appeared to be the result of blunt force trauma. (Apr. 24-26, 2018 Tr. at 305). (See State‘s Ex. 14). Specifically, the bruising on both sides of the face indicated to Norris that J.G. may have been hit on the nose. (Apr. 24-26, 2018 Tr. at 307). (See State‘s Ex. 14). Additionally, J.G. had dried blood on both sides of her nose, indicating a bloody nose. (Apr. 24-26, 2018 Tr. at 306). (See State‘s Ex. 14). Norris also described J.G.‘s face as being swollen. (Apr. 24-26, 2018 Tr. at 306). (See State‘s Ex. 14).
{37} Additionally, Norris observed petechiae on J.G.‘s upper chest, neck, conjunctiva, and the skin immediately surrounding her eyes. (Apr. 24-26, 2018 Tr. at 303-304). (See State‘s Ex. 14). Norris stated that petechiae are small dots that
{38} Norris testified that she performed a genital examination on J.G. and observed no injuries to J.G.‘s genitals. (Id. at 314). However, Norris stated that in her experience performing sexual assault examinations, it is not common for victims of sexual assault, particularly children, to have injuries to their genitals. (Id. at 314-315). Norris also observed J.G.‘s hymen, which is a transparent piece of tissue
{39} As part of her examination, Norris completed a sexual assault evidence collection kit. (Id. at 307). Norris identified State‘s Exhibit 2 as the sexual assault evidence collection kit relating to her December 15, 2017 examination of J.G. (Id. at 308-309). (See State‘s Ex. 2). Included in State‘s Exhibit 2 were a copy of State‘s Exhibit 13-A, vaginal smears, a DNA swab of J.G., and perianal, oral, and fingernail swabs that Norris took during her examination of J.G. (Apr. 24-26, 2018 Tr. at 308-311); (State‘s Ex. 2). Norris noted that J.G. was not wearing underwear when she arrived at the hospital. (Apr. 24-26, 2018 Tr. at 312). Accordingly, Norris was unable to collect J.G.‘s underwear, which is something that is typically done during a sexual assault examination. (Id.). However, Norris collected the pants that J.G.
{¶40} On cross-examination, Norris confirmed that during her examination she used several instruments that allow her to more easily observe injuries to the genitals and the presence of bodily fluids, such as semen, pre-ejaculate, and blood. (Id. at 321-324). Norris reviewed State‘s Exhibit 13-A and confirmed that she documented “[n]o acute injuries” with respect to J.G.‘s genital region, including swelling, tearing, abrasions, or bruising. (Id. at 333-334). (See State‘s Ex. 13-A). Norris testified that although tearing, bruising, and swelling of the vaginal tissue can be possible evidence of sexual assault, she clarified that it is “not usual” to observe such evidence during sexual assault examinations. (Apr. 24-26, 2018 Tr. at 324-325). Norris also confirmed that she did not observe any possible dried blood, possible dried semen or seminal fluid, or foreign pubic hairs during her examination of J.G. (Id. at 334). (See State‘s Ex. 13-A).
{¶41} Although petechiae can be caused by strangulation, Norris confirmed that there are other causes of petechiae, such as an “infectious” or “noninfectious condition” and physical trauma. (Apr. 24-26, 2018 Tr. at 334-335). Norris stated that it is possible for excessive coughing to cause petechiae, but clarified that the
{¶42} On redirect examination, Norris testified that, hypothetically, if a grown male just slightly inserted his penis into a five-year-old girl‘s vagina, she would not expect to observe injury to the young girl‘s genitals. (Id. at 335-336). Norris also testified that if a victim of sexual assault “cleaned up” the genital area, Norris would not expect to find bodily fluids in the victim‘s vagina during the sexual assault examination. (Id. at 336).
{¶43} Next, the State offered the testimony of Brittany Mulinix (“Mulinix“), a forensic scientist in the biology unit of the Ohio Bureau of Criminal Investigation (“BCI“). (Id. at 339). The State moved the trial court to recognize Mulinix as an expert witness, and the trial court granted the State‘s motion without objection. (Id. at 340-341).
{¶44} Mulinix identified State‘s Exhibit 17 as the report she wrote relating to her investigation of the possible evidence submitted by the Lima Police Department relating to the present case. (Id. at 345-346). (See State‘s Ex. 17). Mulinix testified that she performed semen testing on the perivaginal, perianal, and oral samples that Norris collected from J.G. during the sexual assault examination. (Apr. 24-26, 2018 Tr. at 348, 352-353). (See State‘s Ex. 17). However, she did not
{¶45} Mulinix stated that although underwear were not submitted as part of the sexual assault examination collection kit, she was able to examine State‘s Exhibit 4, the pants that Norris collected during her examination of J.G. (Id. at 350-351). (See State‘s Exs. 4, 17). Mulinix testified that she collected samples and performed testing for blood and semen on both sides of the pants. (Apr. 24-26, 2018 Tr. at 351). (See State‘s Ex. 17). Mulinix attested that she did not identify any semen on the inside or the outside of the pants. (Apr. 24-26, 2018 Tr. at 351). (See State‘s Ex. 17). However, she did positively identify presumptive blood on the inside layer of the pants. (Apr. 24-26, 2018 Tr. at 352). (See State‘s Ex. 17).
{¶46} The State‘s next witness was Logan Schepeler (“Schepeler“), a forensic scientist in the DNA testing unit at BCI. (Apr. 24-26, 2018 Tr. at 358). The State moved the trial court to recognize Schepeler as an expert witness in forensic DNA analysis, and the trial court granted the State‘s motion without objection. (Id. at 360-361).
{¶49} According to Schepeler, hypothetically, if a young child was wearing a pair of pants and that person was carried by two different people, it is possible that any individual who carried the child or touched the child‘s clothing could leave DNA on the child‘s clothing or skin. (Apr. 24-26, 2018 Tr. at 366). Schepeler also agreed that, hypothetically, if a person is lying on an item such as a blanket, the blanket could transfer DNA onto that person. (Id. at 366-367). Schepeler testified that if, following a sexual assault, a victim is cleaned with fluid or water, it is possible that the cleaning would affect the presence of any foreign DNA present on that individual. (Id. at 370).
{¶50} On cross-examination, Schepeler clarified that State‘s Exhibit 18, which sets forth the conclusions from the Y-STR testing, lists McCoy as “inconclusive” “[d]ue to the number of contributors.” (Id. at 370-371). (See State‘s Ex. 18). Accordingly, Schepeler could not state whether McCoy contributed to the male DNA mixture found on J.G.‘s pants. (Apr. 24-26, 2018 Tr. at 371).
{¶51} The State‘s final witness was Detective Steven J. Stechschulte, Jr. (“Detective Stechschulte“), a detective with the Lima Police Department. (Id. at 381-382). On December 15, 2017, Detective Stechschulte was walking to the Lima Police Department when he noticed several law enforcement officers in the city building parking lot engaged in conversation with the occupant of a vehicle. (Id. at 383). Detective Stechschulte identified the vehicle occupant as Strange. (Id. at 384). A short time later, Detective Stechschulte encountered Lieutenant Lauck, who requested Detective Stechschulte‘s assistance in an investigation involving a girl who had been found in a vehicle in the city building parking lot. (Id. at 384-385).
{¶52} Shortly thereafter, Detective Stechschulte met J.G. and tried to engage in conversation with her. (Id. at 385-386). He described J.G. as very “withdrawn” and stated that she “appeared skittish” or “traumatized.” (Id. at 386). Detective Stechschulte also immediately noticed that J.G. had “severely blackened eyes,” a swollen mouth and face, and blood on her clothes and the inside of her nostrils. (Id. at 387). Emergency medical services arrived shortly thereafter to transport J.G. to the hospital. (Id.).
{¶53} Detective Stechschulte spent several hours conducting interviews of individuals involved with J.G. and her family. (Id. at 388). That evening, Detective
{¶54} State‘s Exhibit 15 depicts Detective Stechschulte and McCoy in an interview room at the Lima Police Department. (Apr. 24-26, 2018 Tr. at 392-393); (State‘s Ex. 15). Initially, McCoy told Detective Stechschulte a story about waking up the previous night to J.G. screaming in a room upstairs. (State‘s Ex. 15). McCoy told Detective Stechschulte that when he ran upstairs to investigate, he observed an intruder standing over J.G. and hitting her. (Id.). McCoy stated that he fought off the intruder and chased him out of the house. (Id.). McCoy confirmed that Gilbert was in Lima visiting their sister and was not home during the attack. (Id.). McCoy told Detective Stechschulte that he calmed down J.G., who had thrown up, and cleaned blood and vomit off the girl. (Id.). Then, he called Gilbert and told him that J.G. had been attacked by an intruder. (Id.).
{¶55} Thereafter, State‘s Exhibit 15 depicts Detective Stechschulte detailing logical inconsistencies with McCoy‘s story of an intruder, such as that an intruder would have to walk past McCoy, who was supposedly sleeping on a chair next to the door, to reach J.G. in her bedroom upstairs. (Id.). Additionally, Detective
{¶56} Shortly thereafter, McCoy stated, “The story‘s a lie. There‘s no excuse, but I just know that I was really, really * * * drunk. * * * I remember hitting her.” (Id.). McCoy initially denied sexually assaulting J.G. (Id.). Eventually, however, McCoy stated, “I am sick. I do have a [sexual] disease, and I do need help.” (Id.). Thereafter, although McCoy claimed that he was under the influence of alcohol and could not remember the details, McCoy admitted that he tried to sexually assault J.G. (Id.).
{¶57} McCoy stated, “I don‘t think I molested her, but I did try.” (Id.). When Detective Stechschulte asked McCoy, “How far do you think you got?,” McCoy responded, “I don‘t remember penetrating her.” (Id.). McCoy denied performing or attempting to perform oral sex on J.G., but he stated that he did not remember whether he tried to have J.G. perform oral sex on him. (Id.). McCoy claimed that the alcohol that he consumed earlier in the evening made him “spacey” and it was difficult to remember the details. (Id.).
{¶58} Later in the interview, Detective Stechschulte asked McCoy whether they were “going to find some penetration on [J.G.].” (Id.). McCoy responded, “I don‘t know for sure. I don‘t remember. I remember trying. I do remember trying.”
{¶59} When Detective Stechschulte asked McCoy if J.G.‘s saliva would be found on his penis, McCoy responded that he “didn‘t know.” (Id.). Later, Detective Stechschulte asked McCoy again, “You think at best, you got [your penis] in [J.G.‘s vagina] a little bit?” (Id.). McCoy responded, “Yeah.” (Id.). Shortly thereafter, McCoy stated again that he remembered that he was “trying” to penetrate J.G. and she fought him. (Id.).
{¶60} McCoy stated that during the assault, J.G. started scratching him, which angered McCoy and caused him to begin hitting her. (Id.). McCoy admitted that J.G.‘s nose bled as a result of his strikes to her face. (Id.). McCoy stated that after the assault he felt remorse and he told J.G. that a “bad guy” hurt her so that she would believe that another person injured her. (Id.). McCoy denied that he put his hands around J.G.‘s neck and strangled her, but he admitted that he pushed her down and tried to hold her down. (Id.). McCoy admitted that he “might have” put his hand over J.G.‘s mouth to muffle her screams during the attack. (Id.). He also
{¶61} After the State played State‘s Exhibit 15 for the jury, Detective Stechschulte stated that when he questioned McCoy about whether he performed oral sex on J.G., he gave a “hard denial.” (Apr. 24-26, 2018 Tr. at 403-404). Accordingly, Detective Stechschulte was “pretty convinced” that McCoy was being honest about that denial. (Id. at 403-404). However, Detective Stechschulte testified that when he asked McCoy about other forms of penetration, such as penetration of J.G.‘s vagina with his penis, McCoy would say “probably” and “possibly” because he did not want to talk about those acts in depth. (Id. at 404). Detective Stechschulte stated that the actions that McCoy was giving “soft admissions” to regarding being on top of J.G. and attempting to penetrate her began to match up with the physical evidence, such as the defensive injuries to McCoy‘s face and arms. (Id. at 404-405).
{¶62} Detective Stechschulte identified State‘s Exhibits 27, 28, 29, and 31 as photographs taken of McCoy at the Lima Police Department on December 15, 2017. (Id. at 397-398). (See State‘s Exs. 27, 28, 29, 31). State‘s Exhibits 27 and 28 depict scratches above McCoy‘s right and left eyes, respectively. (State‘s Exs. 27, 28); (Apr. 24-26, 2018 Tr. at 398-399). State‘s Exhibit 29 depicts a scratch to McCoy‘s upper lip. (State‘s Ex. 29); (Apr. 24-26, 2018 Tr. at 399-400). State‘s
{¶63} Detective Stechschulte testified that he interviewed McCoy again on December 18, 2017 because he believed that McCoy was not telling him the full story and he hoped that if he interviewed McCoy again, McCoy would be more forthcoming. (Apr. 24-26, 2018 Tr. at 406-407). Specifically, in the first interview, McCoy claimed that he had blacked out due to his alcohol consumption and did not regain consciousness until he was hitting J.G. (Id. at 407). However, Detective Stechschulte testified that upon reviewing McCoy‘s phone, he learned that McCoy sent out several fairly coherent text messages during the time period that he claimed to be unconscious. (Id. at 407-408). Detective Stechschulte testified that based on Detective Stechschulte‘s training in alcohol detection, apprehension, and prosecution, McCoy‘s claims of blacking out for hours until he regained consciousness did not make sense. (Id. at 408). Accordingly, Detective Stechschulte testified that he believed that McCoy remembered more details of the assault than he admitted during the first interview. (Id.).
{¶64} Detective Stechschulte identified State‘s Exhibit 16 as a redacted recording of a second interview that he conducted with McCoy at the Lima Police Department on December 18, 2017. (Id. at 406). (See State‘s Ex. 16). Thereafter, State‘s Exhibit 16 was played for the jury. (Apr. 24-26, 2018 Tr. at 407). (See
{¶65} Detective Stechschulte told McCoy that his story of not being conscious for a prolonged period of time was not consistent with an examination of McCoy‘s phone, which indicated that McCoy was sending coherent text messages at various times during the night. (Id.). McCoy provided several additional details to Detective Stechschulte, such as the fact that the sexual assault occurred upstairs in J.G.‘s bedroom. (Id.). McCoy again stated that he realized what he was doing was wrong when he regained consciousness as he was hitting J.G. (Id.). McCoy stated that after the assault they went downstairs and J.G. threw up. (Id.). McCoy told Detective Stechschulte that he cleaned vomit and blood off of J.G. (Id.).
{¶66} Later in the interview, Detective Stechschulte stated, “You probably put it in [J.G.‘s vagina] a little bit, right?” (Id.). In response, McCoy nodded. (Id.). However, soon thereafter, McCoy again stated that it was not until he was hitting J.G. that he regained consciousness and realized what was happening. (Id.). However, McCoy stated that when he was hitting her he realized that he was “trying
{¶67} Detective Stechschulte acknowledged that some of the evidence that was collected in the course of his investigation was not sent to BCI for analysis and testing. (Apr. 24-26, 2018 Tr. at 411). According to Detective Stechschulte, due to the large volume of agencies submitting potential evidence to BCI, the agency has a policy to only test a limited number of items in each case. (Id. at 411-412). With respect to the underwear Lieutenant Brown collected at 626 Park Street on December 15, 2017, Detective Stechschulte stated that the underwear was not sent for analysis because J.G. did not put them back on following the assault. (Id. at 412).
{¶68} On cross-examination, Detective Stechschulte acknowledged that he told McCoy during his interviews that if he did sexually assault J.G., “science” would be able to prove it. (Id. at 420-421). Detective Stechschulte testified that making the comment that “science” would be able to prove a crime is an interview technique he uses to help elicit the truth from a suspect. (Id. at 430).
{¶69} At the conclusion of the State‘s evidence, the State moved to admit its exhibits and rested. (Id. at 435-444). State‘s Exhibits 15 and 16 were admitted over
{¶70} Thereafter, McCoy made a
{¶71} First, we will address McCoy‘s argument that his rape conviction is not supported by sufficient evidence. Specifically, McCoy argues that the State did not offer sufficient evidence to support a finding that penetration occurred. (Appellant‘s Brief at 12). Because McCoy only challenges the sufficiency of the State‘s evidence showing that he penetrated J.G.‘s vagina, we focus solely on whether the State presented sufficient evidence to prove this element.
{¶72} With respect to the issue of penetration, we find that a reasonable jury could have found that McCoy penetrated J.G.‘s vagina with his penis. As previously outlined, the insertion need only be slight to be considered vaginal penetration. “The vagina is the hollow passage leading from the uterus of the female body outward to the exterior genitalia, or vulva, which is comprised of lip-like folds of skin called the labia majora. The term “vaginal cavity” refers to that entire anatomical process and any part of it.” State v. Meador, 12th Dist. Warren No. CA2008-03-042, 2009-Ohio-6548, ¶ 11, quoting State v. Grant, 2d Dist. Montgomery No. 19824, 2003-Ohio-7240, ¶ 29. “Penetration of the vaginal cavity requires introduction of an object from without, which necessarily implies some forceful spreading of the labia majora. The penetration need only be “slight“.”
{¶73} The record reflects that, during his interviews with Detective Stechschulte, McCoy repeatedly and freely admitted that he was attempting to
{¶74} Nevertheless, McCoy argues that the State failed to prevent evidence of penetration because the victim did not testify at the trial, Norris observed no injury to J.G.‘s hymen, and the evidence did not establish that McCoy‘s semen or DNA was found on J.G.‘s body. We are not persuaded.
{¶75} First, a rape victim is not required to testify to the issue of penetration if the State can provide sufficient evidence of penetration through other evidence or testimony. See State v. Edinger, 10th Dist. Franklin No. 05AP-31, 2006-Ohio-1527, ¶ 41 (finding the defendant‘s statements to the police regarding penetration were sufficient to uphold a conviction for rape). As detailed above, the State presented
{¶76} McCoy‘s argument that the State failed to present sufficient evidence to demonstrate penetration because his semen or DNA was not found in the samples collected from J.G.‘s body and clothing also fails. We first note that the State was not required to prove that McCoy ejaculated during the commission of the rape. See State v. Bush, 4th Dist. Ross No. 09CA3112, 2009-Ohio-6697, ¶ 45 (“[T]he crime of rape does not require the State to prove that the defendant achieved a sexual climax.“). In fact, according to the State‘s theory of the case, McCoy only inserted his penis slightly into J.G.‘s vagina. The State did not allege that McCoy achieved a sexual climax during the assault. Accordingly, the absence of sperm in the samples tested is not inconsistent with the State‘s theory of the case. Likewise, because the State presented other evidence from which the jury could reasonably infer that vaginal penetration occurred, the absence of McCoy‘s bodily fluid or genetic material on J.G.‘s body is not fatal to the State‘s case. See State v. Gaines, 5th Dist. Stark No. 2005CA00099, 2005-Ohio-5794, ¶ 44-45 (holding that the State met its burden of production for each element of the crime of rape even with a “lack of DNA evidence” and “less than perfect police investigation“).
{¶78} Having determined that McCoy‘s rape conviction was supported by sufficient evidence, we next address McCoy‘s argument that his felonious assault conviction is not supported by sufficient evidence. With respect to his felonious assault conviction, McCoy argues that the State did not offer sufficient evidence to support a finding that J.G. suffered serious physical harm. (Appellant‘s Brief at 13-14). McCoy contends that the State only presented evidence that J.G. suffered minor bruising and petechiae and, therefore, failed to present sufficient evidence that J.G. suffered serious physical harm. Because McCoy only challenges the sufficiency of the State‘s evidence with respect to the requirement that he caused “serious physical harm” to J.G., our analysis will be limited to the State‘s evidence supporting that element.
{¶79} The record reflects that the responding officers observed the injuries to J.G.‘s face and called an ambulance that transported J.G. to the hospital, where medical professionals assessed her. Norris testified that J.G. presented with “significant injuries to the face.” J.G.‘s injuries included “heavy bruising around both of her eyes” and swelling on her face. Norris stated that the bruising around J.G.‘s eyes indicated to her that J.G. may have been hit on her nose. Additionally,
{¶80} J.G. also presented with petechiae around her eyes and neck. Norris testified that she observed petechiae on J.G.‘s upper chest, neck, conjunctiva, and the skin immediately surrounding her eyes. Norris‘s observations were also depicted in a series of photographs taken during the examination. Norris testified that the ruptured blood vessels she observed in J.G.‘s eyes are “actually quite large for being petechiae” and that in her experience performing sexual assault examinations, the petechiae she observed on J.G.‘s body were “significant.” Although, as McCoy indicates, Norris conceded on cross-examination that petechiae can be caused by non-violent means, such as “very, very harsh crying” or “really harsh” coughing, Norris testified that J.G.‘s injuries indicated to her that J.G.‘s airway was restricted at some time. Moreover, Norris testified that the petechiae observed on J.G.‘s neck are significant because it “very well could” be the result of someone putting his or her hands on J.G.‘s neck. Moreover, during his interview with the police, McCoy admitted that he held J.G. down during the assault and that he “might have” put his hand over her mouth to muffle her screams.
{¶82} Having found that sufficient evidence supports McCoy‘s rape and felonious assault convictions, we now turn to McCoy‘s argument that his rape and felonious assault convictions are against the manifest weight of the evidence. In support of his argument that his rape and felonious assault convictions are against
{¶83} Even so, after weighing the evidence and evaluating the credibility of the witnesses, with appropriate deference to the trier of fact‘s credibility determinations, we conclude that the jury did not clearly lose its way and create such a manifest miscarriage of justice that McCoy‘s rape and felonious assault convictions must be reversed.
{¶84} Accordingly, McCoy‘s first and second assignments of error are overruled.
Assignment of Error No. III
The Appellant‘s right to the effective assistance of Counsel guaranteed under Section 10, Article I of the Ohio Constitution, and Sixth and Fourteenth Amendments to the United States Constitution was not [sic] violated by Trial Counsel based upon the record before this Court.
{¶86} “In criminal proceedings, a defendant has the right to effective assistance of counsel under both the United States and Ohio Constitutions.” State v. Evick, 12th Dist. Clinton No. CA2019-05-010, 2020-Ohio-3072, ¶ 45. A defendant asserting a claim of ineffective assistance of counsel must establish: (1) the counsel‘s performance was deficient or unreasonable under the circumstances; and (2) the deficient performance prejudiced the defendant. State v. Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984). In order to show counsel‘s conduct was deficient or unreasonable, the
{¶87} Prejudice results when “there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Bradley at 142, quoting Strickland at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id., quoting Strickland at 694. If the petitioner cannot prove one of the elements, it is “unnecessary for a court to consider the other prong of the test.” State v. Walker, 3d Dist. Seneca No. 13-15-42, 2016-Ohio-3499, ¶ 20.
{¶88} Notwithstanding McCoy‘s assertions that his counsel was ineffective, McCoy‘s argument presented under his third assignment of error is completely
{¶89} Accordingly, McCoy‘s third assignment of error is overruled.
Appellant‘s maximum sentence of life imprisonment without the possibility of parole for the conviction of Rape and eight years of imprisonment to be served consecutively thereto for the conviction of Felonious Assault was not supported by the requisite statutory findings found in
{¶90} In his fourth assignment of error, McCoy argues that the trial court erred by sentencing him to a term of life imprisonment without parole for Count One and eight years’ imprisonment for Count Five.
{¶91} Under
{¶92} “Trial courts have full discretion to impose any sentence within the statutory range.” State v. Smith, 3d Dist. Seneca No. 13-15-17, 2015-Ohio-4225, ¶ 9, quoting State v. Noble, 3d Dist. Logan No. 8-14-06, 2014-Ohio-5485, ¶ 9, citing State v. Saldana, 3d Dist. Putnam No. 12-12-09, 2013-Ohio-1122, ¶ 20. Rape of a child less than ten years of age carries a maximum penalty of life imprisonment
{¶93} Here, McCoy was sentenced to life imprisonment without parole on Count One and eight years’ imprisonment as to Count Five.2 Accordingly, the trial court‘s sentence is within the statutory range. “‘[A] sentence imposed within the statutory range is “presumptively valid” if the [trial] court considered applicable sentencing factors.‘” State v. Nienberg, 3d Dist. Putnam Nos. 12-16-15 and 12-16-16, 2017-Ohio-2920, ¶ 10, quoting State v. Maggette, 3d Dist. Seneca No. 13-16-06, 2016-Ohio-5554, ¶ 31, quoting State v. Collier, 8th Dist. Cuyahoga No. 95572, 2011-Ohio-2791, ¶ 15.
{¶94}
{¶95} From the record, it is clear that the trial court sentenced Jackson after considering the overriding purposes of felony sentencing set forth in
{¶96} Moreover, the record supports the trial court‘s sentence. The record indicates that the victim was five-years-old, and thus, her young age exacerbated her injuries. See
{¶97} Nevertheless, McCoy contends that several mitigating factors applied here and that the trial court erred by failing to identify and specifically assign weight to those mitigating factors. However, as previously discussed, the trial court explicitly stated that it had considered the relevant statutory factors and had, therefore, fulfilled its obligation under the sentencing statute. See Maggette, 2016-Ohio-5554, at ¶ 32; Dayton, 2016-Ohio-7178, at ¶ 21. To the extent that McCoy is arguing that the trial court did not assign the appropriate weight to the applicable mitigating and aggravating factors, we likewise do not find his argument persuasive. Ultimately, the trial court had broad discretion to determine the relative weight to assign the
{¶98} In conclusion, the trial court properly considered the purposes and principles of felony sentencing and applied the relevant
{¶99} Accordingly, McCoy‘s fourth assignment of error is overruled.
{¶100} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW, P.J. and WILLAMOWSKI, J., concur.
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