State v. MitchellState v. Mitchell
JUDGMENT: AFFIRMED IN PART; REVERSED AND REMANDED IN PART
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-521326
RELEASED AND JOURNALIZED: November 24, 2010
Thomas A. Rein
Leader Building, Suite 940
526 Superior Avenue
Cleveland, OH 44114
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
Daniel T. Van
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
CHRISTINE T. McMONAGLE, J.:
{¶ 1} Defendant-appellant, Marvin Mitchell, appeals his convictions, rendered after a jury trial, for aggravated burglary, felonious assault, rape, kidnapping, and disrupting public service. We affirm in part and reverse and remand in part.
I
{¶ 2} Mitchell was indicted in March 2009 as follows: Count 1, aggravated burglary; Count 2, felonious assault; Count 3, rape, with a sexually violent predator specification; Count 4, rape, with a sexually violent predator
{¶ 3} Count 6, domestic violence, was nolled prior to trial. The remaining counts were tried to a jury.1 At the conclusion of the state‘s case, the defense made a
II
{¶ 4} The trial testimony demonstrated the following. The victim, J.L., was Mitchell‘s girlfriend. J.L. resided in an apartment with her two young children. She gave Mitchell a key to the apartment because he would often
{¶ 5} On the day of the incident, J.L. had driven one of her children‘s grandmother to Trumbull County. During the trip, she had communicated with Mitchell via her cell phone, but during one of the conversations, her phone “died,” cutting off the conversation.
{¶ 6} J.L. arrived home from the trip around 8:00 p.m. and went to bed. She was awakened by an “angry” Mitchell in the early morning hours. J.L. testified that Mitchell forcibly removed her from her bed and began assaulting her. At one point, she ran into the living room, but Mitchell followed her and continued assaulting her. J.L. told Mitchell that she was going to call the police or her brother; Mitchell ripped the phone connection from the wall. Mitchell stopped assaulting J.L. after he threw a basket and it hit one of J.L.‘s children.
{¶ 7} Following the altercation, J.L.‘s child went back to sleep in the living room, and Mitchell suggested that he and J.L. go to sleep. The two went to J.L.‘s bedroom, and Mitchell asked her to perform oral sex on him; J.L. said “no.” He then asked her if she wanted to have sex and she again said “no.” She testified that Mitchell then raped her digitally and with his penis. Afterward, the two went to sleep.
{¶ 9} A rape kit was administered to J.L. at the hospital. Semen was identified in the vaginal and anal samples. A nurse from the hospital testified that J.L. told her that Mitchell did not digitally penetrate her. Police photos depicted severe bruising on J.L.‘s face and bruising and/or abrasions to her arm, neck, and leg.
III
{¶ 10} In his first assignment of error, Mitchell contends that the evidence was insufficient to support his convictions.4
{¶ 11} The Ohio Supreme Court has recognized that “[i]n determining whether the evidence is legally sufficient to support the jury verdict as a matter of law, ‘[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
A. Aggravated Burglary
{¶ 12}
{¶ 13} In Steffen, the victim allowed the defendant, a door-to-door salesman, to enter her home to demonstrate his product. However, once inside her home, the defendant assaulted, raped, and killed the victim. He was convicted of aggravated murder, aggravated burglary, and rape. In upholding the aggravated burglary conviction, the Ohio Supreme Court noted the following definition of criminal trespass: “‘No person, without privilege to
{¶ 14} In finding that the defendant trespassed, the Court held that “even assuming lawful initial entry, the jury was justified in inferring from the evidence that [the defendant‘s] privilege to remain in [the victim‘s home] terminated the moment he commenced his assault on her. [The defendant] does not deny striking [the victim] repeatedly before killing her. From that undisputed fact, a powerful inference arises that [the defendant] was no longer privileged to remain in [the victim‘s] home, and that he knew his privilege had been terminated.” Id.
{¶ 15} In sum, the Ohio Supreme Court has ruled that a violent crime committed in the residence of one other than the defendant always constitutes aggravated burglary (i.e., the commission of the crime terminates the privilege to remain in the home). While critical of this holding, we are bound to follow it. In accordance with Steffen, therefore, even if Mitchell lawfully gained entry to J.L.‘s apartment, that privilege terminated once he began assaulting her. Thus, there was sufficient evidence to support the aggravated burglary charge.
B. Rape and Kidnapping
{¶ 17} Under the standard set forth above for reviewing sufficiency claims, we find the evidence was sufficient to support the rape conviction. J.L. testified that she was “scared” when she went into her bedroom with Mitchell and she told him “no” to his requests for sex. She further testified that Mitchell “forced himself” on her and she tried to resist, but he raped her. Moreover, the rape occurred after Mitchell had assaulted J.L.5 Semen was identified in the vaginal and anal samples taken from J.L. This evidence was sufficient to support the rape charge.
{¶ 18} In regard to the kidnapping count, Mitchell was charged under
C. Disrupting Public Services
{¶ 19} In regard to disrupting public services,
D. Felonious Assault
{¶ 20} The felonious assault conviction was also supported by sufficient evidence, as admitted by Mitchell, who states in his brief that “[t]here appears to be ample evidence as to counts relating to [felonious assault].” That evidence consisted of J.L.‘s testimony that Mitchell threw her to the floor, punched her, and slapped her. The evidence also consisted of testimony from the treating medical personnel about, and pictures depicting, the injuries sustained by J.L.
E. Sexually Violent Predator Specifications
{¶ 22} Although Mitchell had prior convictions, the convictions in this case were his first for sexually-oriented offenses. An issue arises, then, as to whether the convictions here can be used for a sexually violent predator finding. In State v. Smith, 104 Ohio St.3d 106, 2004-Ohio-6238, 818 N.E.2d 283, the Ohio Supreme Court considered the former version of
{¶ 23} The Court focused on the language “has been convicted of or pleaded guilty to committing,” stating that “[t]hese words clearly indicate that at the
{¶ 24} Thus, in Smith, the Court concluded that the then version of
{¶ 25} The Ninth Appellate District considered the effect of the amendment in State v. Hardges, Summit App. No. 24175, 2008-Ohio-5567. The court stated, “[w]e consider the amended language of
{¶ 26} We agree with the Ninth Appellate District and therefore overrule Mitchell‘s argument that he could not be found to be a sexually violent predator because he was a first-time sex offender. We now consider whether the evidence was sufficient to support the second part of the definition of a sexually violent predator, that is, “a person who * * * is likely to engage in the future in one or more sexually violent offenses.”
{¶ 27} The statute provides that in making that determination, courts may consider, in part, whether: “The person has committed one or more offenses in which the person has tortured or engaged in ritualistic acts with one or more victims[;] [and] [t]he person has committed one or more offenses in which one or more victims were physically harmed to the degree that the particular victim‘s life was in jeopardy.”
{¶ 29} The court found that the assault of J.L. “amounted to torturing her[,]” and that “it put not only her life in danger, but this was a pregnant woman as well[,]” and thus, her unborn baby‘s life was also endangered. On this record, sufficient evidence supported the trial court‘s finding that Mitchell “is likely to engage in the future in one or more sexually violent offenses,” and thus that he is a sexually violent predator.
{¶ 30} In light of the above, the first assignment of error is overruled.
IV
{¶ 31} For his second assigned error, Mitchell contends that his convictions were against the manifest weight of the evidence. He concedes the felonious assault conviction, but states that “there is no substantive or credible evidence of kidnapping, rapes [sic] or aggravated burglary.” We disagree.
{¶ 32} To warrant reversal from a verdict under a manifest weight of the evidence claim, this court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether in resolving conflicts in evidence, the jury clearly lost its way and created
{¶ 33} Although we review credibility when considering the manifest weight of the evidence, the credibility of witnesses is primarily a determination for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212, paragraph one of the syllabus. The trier of fact is best able “to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony.” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶24, citing Seasons Coal Co., Inc. v. Cleveland (1984), 10 Ohio St.3d 77, 80-81, 461 N.E.2d 1273.
{¶ 34} Mitchell bases this assignment of error on his contention that J.L. was not credible. Upon review, we do not find that J.L.‘s testimony was so incredible that the judgment must be reversed and a new trial ordered. Her testimony was corroborated by other evidence — photos depicted her injuries after the assault and semen was identified in the vaginal and anal samples taken from her. Accordingly, we overrule the second assignment of error.
V
{¶ 35} In his third and fourth assignments of error, Mitchell challenges his sentence. He contends in the third assignment that he should not have been sentenced to a “life tail” under
{¶ 36} When reviewing felony sentences, an appellate court must first determine whether the sentencing court complied with all applicable rules and statutes in imposing the sentence to determine whether the sentence is contrary to law. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 986 N.E.2d 124, ¶4. If the sentence is not clearly and convincingly contrary to law, we then review the trial court‘s decision under an abuse-of-discretion standard. Id.
{¶ 37} In regard to the “life tail” sentence, the state concedes error, but for a different reason than that advanced by Mitchell. Specifically, Mitchell contends that “life tail” sentences for rape convictions are only permissible for a defendant who has a prior similar conviction or if the victim was less than ten years of age, and cites
{¶ 38} Upon review,
{¶ 39} “* * *
{¶ 40} “(ii) If the rape is committed prior to January 2, 2007, or the rape is committed on or after January 2, 2007, other than in violation of division (A)(1)(b) of section 2907.02 of the Revised Code, it shall impose an indefinite prison term consisting of a minimum term fixed by the court that is not less than ten years, and a maximum term of life imprisonment.”
{¶ 41} Thus, Mitchell‘s conviction for rape in violation of
{¶ 42} Finally, in response to the fourth assignment of error, wherein Mitchell cites Oregon v. Ice, supra, for the proposition that State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, is no longer applicable to consecutive sentences, this court has declined to depart from Foster until the Ohio Supreme Court orders otherwise.9 Accordingly, the fourth assignment of error is overruled.
It is ordered that appellee recover from appellant 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 common pleas 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 resentencing.
A certified copy of this entry shall constitute the mandate pursuant to
CHRISTINE T. McMONAGLE, JUDGE
SEAN C. GALLAGHER, A.J., and FRANK D. CELEBREZZE, JR., J., CONCUR