Stаte of Ohio, Plaintiff-Appellee, v. Terrance Morris, Defendant-Appellant.
No. 18AP-208 (C.P.C. No. 16CR-2290) and No. 18AP-209 (C.P.C. No. 16CR-6205)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
December 27, 2018
[Cite as State v. Morris, 2018-Ohio-5252.]
(REGULAR CALENDAR)
Rendered on December 27, 2018
On brief: Ron O‘Brien, Prosecuting Attorney, and Valerie B. Swanson, for appellee.
On brief: Sydow Leis LLC, and Anastasia L. Sydow, for appellant.
APPEALS from the Franklin County Court of Common Pleas
LUPER SCHUSTER, J.
{¶ 1} Defendant-appellant, Terrance Morris, appeals from two judgment entries of the Franklin County Court of Common Pleas finding him guilty pursuant to guilty verdicts of two counts of rape, six counts of unlawful conduct with a minor, and four counts of importuning. For the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} By indictment filed April 26, 2016, plaintiff-appellee, State of Ohio, charged Morris, under Franklin C.P. No. 16CR-2290, with four counts of importuning in violation of
{¶ 3} Subsequently, by indictment filed November 4, 2016, the state charged Morris, under Franklin C.P. No. 16CR-6205, with two counts of rape in violation of
{¶ 4} On February 22, 2017, the state filed a motion to join Morris’ two indictments into a single action for trial. Morris opposed the state‘s motion for joinder. The trial court сonducted a hearing on the state‘s motion on March 15, 2017. Following the hearing, the trial court issued an entry granting the state‘s motion for joinder. The trial court reasoned that because “evidence of one offense would be admissible at a separate trial as other acts evidence” under
{¶ 5} The matter then proceeded to a joint jury trial on both indictments beginning January 29, 2018. A.P., who was 17 years old at the time of trial, testified that she used to dance on a dance team through the Barnett Recreation Center. The head coach of the dance team was LaTausha Woods, and Morris was an assistant coach. A.P. testified she first met Morris at dance tryouts in August 2015 when she was 14 years old. A.P. turned 15 years old on August 29, 2015, and she testified that Morris told her he was 28 years old.
{¶ 6} Pursuant to her testimony, A.P. told Morris she thought he was cute and had a crush on him, and Morris obtained A.P.‘s phone number from another girl on the dance team. A.P. said she and Morris would text every day and that their relationship turned “serious.” (No. 18AP-208, Tr. Vol. I at 33.) A.P. told Morris how old she was and Morris told her that he “was okay with it.” (Tr. Vol. I at 33.) After they made their relationship “official,” A.P. said Morris told her not to tell anyone that he was her boyfriend because they could get in trouble, including A.P. getting kicked off the dance team.
{¶ 7} A.P. testified that she would spend time with Morris at her house, at restaurants, and at a park. However, A.P. said her mother did not know she was spending time with Morris because her mom was at work when A.P. was with Morris. Eventually,
{¶ 8} A.P. testified that she had sex with Morris “a lot” but that she stopped once her mom found out about their relationship. (Tr. Vol. I at 40.) A.P. said her mom saw text messages and pictures on her phone that she and Morris had been sending to each other and confronted A.P. about them. At first, A.P. said she lied to her mom about having a relationship with Morris because she was “scared.” (Tr. Vol. I at 44.)
{¶ 9} Eventually, however, A.P. said her mom had hеr go to Nationwide Children‘s Hospital (“Children‘s Hospital“) to be examined. While at Children‘s Hospital, A.P. met with a detective who had her call Morris in a controlled phone call. During the phone call, which the state played the recording of in court, Morris admitted to having sex with A.P. but said no one would be able to prove it because he didn‘t ejaculate inside of her.
{¶ 10} Kerri Wilkinson, a forensic interviewer at Children‘s Hospital, testified she interviewed A.P. on January 15, 2016. Wilkinson testified A.P. told her that Morris, her dance instructor, had asked to be her boyfriend but told her not to tell anyone. A.P. told Wilkinson during the interview that she had intercourse with Morris more than once, that they did not use protection, and that Morris would not ejaculate inside of her when they had sex. Additionally, A.P. disclosed to Wilkinson that she engaged in oral sex with Morris and other sexual contact including Morris touching her breasts and her genitals. Wilkinson further testified that A.P. told her about various sexual acts Morris would ask A.P. to perform on him.
{¶ 11} Megan Letson, a physician at Children‘s Hospital, testified she examined A.P. on January 15, 2016. Dr. Letson testified A.P. had no physical injuries. Dr. Letson said A.P.‘s physical exam was consistent with the history A.P. had provided.
{¶ 12} J.H., whо was 16 years old at the time of trial, testified that she met Morris when she was 12 or 13 years old because he was the assistant coach of her dance team. J.H. said she obtained Morris’ phone number on a messenger app and sent him a text message to ask about how she could be a better captain for the dance team. Thereafter, J.H. said she
{¶ 13} J.H. said she told three people about being Morris’ girlfriend and that Morris “got mad” and told her she needed to keep quiet because he could “get in serious trouble.” (Tr. Vol. I at 79-80.) J.H. then told the three people that she was joking about being Morris’ girlfriend, but she said she and Morris would continue to text as though they were in a relationship. J.H. testified she knew it was wrong to communicate with Morris in this way, but she felt like she could not stop because “being the captain of [the dance] team meant so much” to her. (Tr. Vol. I at 79.)
{¶ 14} J.H. also said she would often spеnd the night at Woods’ house, the head coach of the dance team, the night before competitions along with other members of the dance team. J.H. said Morris would be present at these sleepovers and would “mess with [her]” and “act[ ] like he was playing.” (Tr. Vol. I at 83.)
{¶ 15} During one sleepover on “the day going into New Year‘s,” J.H. testified that Morris raped her. (Tr. Vol. I at 83.) Specifically, J.H. testified she was lying on the couch when Morris climbed over her. J.H. testified she tried to get away from him and tried to “fight him” but that Morris pulled her back and anally raped her. (Tr. Vol. I at 85.) J.H. said it was painful but said she did not scream because Morris had his hand covering her mouth. At one point, J.H. said Morris partially removed himself and tried to reposition himself, but J.H. was able to push Morris off of herself and run to the bathroom. J.H. testified she locked herself in the bathroom, she was bleeding, and she waited in the bathroom long enough until she felt she was strong enough to “mentally fight him back” if Morris came after her again. (Tr. Vol. I at 86.)
{¶ 16} The next morning, J.H. testified she came downstairs and was “walking really weird” because her body “was hurting.” (Tr. Vol. I at 87.) J.H. said Morris told her that if she does “some stretches, that pain will go away.” (Tr. Vol. I at 87-88.) J.H. testified thаt Morris’ comment left her feeling very angry. However, J.H. testified she did not tell her parents about being raped because she did not know what they were going to do and was not even sure they would believe her.
{¶ 17} J.H. further testified that Morris raped her a second time during another sleepover at Woods’ house early in the spring. At this sleepover, J.H. said there were a lot of people there and Morris moved all of J.H.‘s belongings into a corner. After falling asleep in that corner, J.H. said Morris woke her up and “the same thing happened again.” (Tr. Vol. I at 90.)
{¶ 18} J.H. testified when Morris wоke her up, she thought to herself about whether she should just “let this happen” or whether she could “fight back,” but she said it was “too late.” (Tr. Vol. I at 90-91.) J.H. testified Morris anally raped her again, and the experience was once again painful but she did not scream. After it was over, J.H. said she just sat in the corner because she could not sleep. The next morning, J.H. decided she would not attend any more sleepovers at Woods’ house.
{¶ 19} Between these two encounters, J.H. said Morris continued to contact her and would act like nothing wrong had happened. She testified thаt if she did not do what Morris wanted or tried to cut off contact with him, Morris would threaten that he would take away her captain position.
{¶ 20} Eventually, J.H. said another member of the dance team suspected something was going on between J.H. and Morris, so there was a meeting at Woods’ house that included J.H., her parents, Morris, Woods, and a few other people. J.H. testified that before the meeting, Morris called her and told her she needed to go to the meeting and say she had a crush on Morris and that she did not mean for it to go this far but that she was sorry. J.H. said Morris told her that if she said what he wanted her to say, it would keep them both from getting in trouble. J.H. testified she said everything Morris told her to say during the meeting, and she said she lied at the meeting because she did not think anyone was going to believe her. After the meeting, J.H. said her mom took her off the dance team.
{¶ 21} J.H. testified she ultimately decided to tell the truth because “it was eating [her] up so much.” (Tr. Vol. I at 97.) She said she was so distraught that her hair was falling out and she was having suicidal thoughts. When she finally came forward with what happened to her, J.H. went to the Children‘s Advocacy Center at Children‘s Hospital for an exаmination in May 2016.
{¶ 22} B.H., J.H.‘s mother, testified that J.H. used to regularly go to Woods’ house before competitions, but she did not know that Morris would also be staying at the house
{¶ 23} Wilkinson, the forensic interviewer at Children‘s Hospital, testified she also interviewed J.H. on May 10, 2016 when J.H. was 15 years old. Wilkinson testified that J.H. told her the situation with Morris began one year earlier and that Morris was her dance instructor. J.H. disclosed to Wilkinson that Morris had twice performed anal sex on her while at Woods’ house and that it hurt both times. J.H. also told Wilkinson that Morris had told J.H. not to tell anyone about their relationship, told her to lie for him, and told her they could both get in trоuble if anyone found out about their relationship.
{¶ 24} Farah Brink, a physician with Children‘s Hospital, testified that she examined J.H. Dr. Brink testified that J.H. reported some past suicidal ideation. J.H.‘s physical anogenital exam was normal, but Dr. Brink testified this was consistent with a history of anal penetration. Additionally, Dr. Brink testified she sees delayed disclosure of sexual assault frequently, especially with children.
{¶ 25} The parties stipulated that Morris’ date of birth was April 29, 1987. After the state rested its presentation of evidence, Morris made a
{¶ 26} Morris presented four witness in his defense. A.N., the mother of Z.W., testified that she attended the meeting concerning J.H. and Morris and that she thought J.H. apologized during the meeting for lying about her relationship with Morris. Z.W., who was on the same dance team and was friends with A.P. and J.H., testified she did not believe A.P. had sexual intercourse with Morris, and she did not want to see Morris get in trouble. Revieta Lampley testified she was also at the meeting, and she recalled J.H. saying she had a crush on Morris.
{¶ 27} Finally, Woods testified that she coached both A.P. and J.H. but the two girls were never оn the team at the same time. Woods said she had never seen any inappropriate behavior from Morris. After the meeting, Woods said she suspended J.H. from being the captain of the dance team. Woods testified she distanced herself from Morris in case the allegations were true, but she said she was still unsure what the truth was.
{¶ 28} After calling those four witnesses, the defense rested and Morris renewed his
{¶ 29} During the jury‘s deliberations, the trial court learned that the jury had been given a CD that contained recordings that were not presented as evidence. The trial court contacted counsel and stated it was going to bring the jurors in to have the jurors explain “what they had an opportunity to listen to.” (Tr. Vol. IV at 473.) After questioning the jurors and hearing arguments from counsel, the trial court denied Morris’ motion for a mistrial. Additionally, the trial court provided a curative instruction to the jury.
{¶ 30} Following deliberations, the jury returned guilty verdicts on all counts. Following a March 7, 2018 sentencing hearing, the trial court sentenced Morris to an aggregate prison term of 16 and one-half years. The trial court journalized Morris’ convictions and sentence in two judgment entries dated March 19, 2018, one for each of the underlying indictments. Morris timely appeals from both judgment entries. This court sua sponte consolidated the cases for purposes of appeal.
II. Assignments of Error
{¶ 31} Morris assigns the following errors for our review:
- [1.] The trial court erred when it granted the state‘s motion for joinder.
- [2.] The trial court erred in denying defendant‘s motion for a mistrial after evidence not admitted at trial went back to the jury room and was viewed by jurors during deliberations.
- [3.] The verdicts were against the manifest weight of the evidence.
- [4.] The trial court erred when it overruled appellant‘s motion for acquittal pursuant to
Criminal Rule 29 .
{¶ 32} In his first assignment of error, Morris argues the trial court erred when it granted the state‘s motion for joinder.
{¶ 33} Generally, the law favors the joinder of multiple offenses into a single trial. State v. McBride, 10th Dist. No. 10AP-585, 2011-Ohio-1490, ¶ 9, citing State v. Brinkley, 105 Ohio St.3d 231, 2005-Ohio-1507, ¶ 28. Under
{¶ 34} Ordinarily, an appellate court reviews a trial court‘s decision on joinder for an abuse of discretion. State v. Berry, 10th Dist. No. 16AP-659, 2017-Ohio-1529, ¶ 54. Here, Morris opposed the state‘s motion for joinder prior to trial. However, Morris did not renew his opposition to the joinder of his indictments either at the close of the prosecution‘s case, at the conclusion of all evidence at trial, or otherwise move for severance under
{¶ 35} For an error to be a “plain error” under
{¶ 36} While
{¶ 37} As this court has previously noted, “[t]he state can negate the defendant‘s claims of prejudice in two ways.” Cameron at ¶ 35, citing Brinkley at ¶ 30. “First, if evidence of one offense could have been introduced under
{¶ 38} Morris’ argument that the state impermissibly used the evidence of the other offenses to show propensity ignores the trial court‘s conclusion following the hearing on the state‘s motion for joinder that the testimony of each victim would be admissible under
{¶ 39} Moreover, the trial court additionally concluded that the evidence of the offenses under each indictment was simple and direct. “[W]hen simple and direct evidence exists, an accused is not prejudiced by joinder regardless of the nonadmissibility of evidence of these crimes as ‘other acts’ under
{¶ 40} Here, the state‘s evidence related to the two indictments was not confusing or difficult to follow. The state presented a limited number of witnesses who presented straightforward testimony. Additionally, the trial court instructed the jury regarding the admissibility and purpose of the testimony of each victim as it related to the other victim‘s allegations. See Hillman at ¶ 40 (concluding that “because the evidence was simple and direct, the possibility of jury confusion was extremely remote such that any claim of prejudice arising from joinder would be negated“), citing State v. Wilson, 10th Dist. No. 10AP-251, 2011-Ohio-430, ¶ 25 (“[a] jury is presumed to follow the instructions of the court“).
{¶ 41} For these reasons, we conclude Morris has failed to demonstrate plain error from the trial court‘s joinder of the two indictments for trial. Accordingly, we overrule Morris’ first assignment of error.
IV. Second Assignment of Error – Motion for Mistrial
{¶ 42} In his second assignment of error, Morris argues the trial court erred when it denied his motion for a mistrial. More specifically, Morris asserts it was an abuse of discretion for the trial court not to declare a mistrial when the jury revealed during deliberations that it had erroneously received a CD containing audio recordings that were not presentеd as evidence during the trial.
{¶ 43} An appellate court reviewing a trial court‘s decision on a motion for mistrial defers to the judgment of the trial court, as it is in the best position to determine whether circumstances warrant a mistrial. State v. Glover, 35 Ohio St.3d 18, 19 (1988). Thus, we review a trial court‘s decision for an abuse of discretion. Columbus v. Aleshire, 187 Ohio App.3d 660, 2010-Ohio-2773, ¶ 42 (10th Dist.), citing State v. Sage, 31 Ohio St.3d 173, 182 (1987). An abuse of discretion connotes a decision that is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶ 44} ” ‘A mistrial should not be ordered in a criminal case merely because some error or irregularity has intervened, unless the substantial rights of the accused or the prоsecution are adversely affected.’ ” State v. Walburg, 10th Dist. No. 10AP-1087, 2011-Ohio-4762, ¶ 52, quoting State v. Reynolds, 49 Ohio App.3d 27, 33 (2d Dist.1988). Instead, a trial court should only declare a mistrial when “the ends of justice so require and a fair trial is no longer possible.” State v. Franklin, 62 Ohio St.3d 118, 127 (1991). In determining whether a defendant was deprived of a fair trial, we must determine whether, absent the error or irregularity, “the jury would have found the appellant guilty beyond a reasonable doubt.” Aleshire at ¶ 42, citing State v. Maurer, 15 Ohio St.3d 239, 267 (1984). To determine whether the alleged misconduct resulted in prejudice, we must consider (1) the nature of the error, (2) whether an objection was made, (3) whether the trial court provided corrective instructions, аnd (4) the strength of the evidence against the defendant. Aleshire at ¶ 42, citing State v. Tyler, 10th Dist. No. 05AP-989, 2006-Ohio-6896, ¶ 20.
{¶ 45} This court has held that an item not admitted into evidence but taken into deliberations does not require a reversal if the item “could not have been prejudicial.” State v. Smith, 10th Dist. No. 13AP-973, 2015-Ohio-735, ¶ 29, citing State v. Graven, 52 Ohio St.2d 112, 114 (1977). During deliberations, the jury submitted a question to the trial court inquiring whether it was meant to listen to the entire contents of an audio CD or whether they were to listen only to certain portions of the CD reflecting those exhibits actually admitted into evidence. The CD contained three files, only one of which had been admitted into evidence. The other two filеs were recordings of police interviews with witnesses not called at trial.
{¶ 46} The trial court questioned the jury about what they heard on the CD. The jury foreperson told the court that the only thing of substance they heard was a detective say “I was going to conduct an interview. I know it‘s not going to be comfortable.” (Tr. Vol. IV at 475.) The rest of the time it was just dead air or background noise. According to the foreperson, the jury stopped listening at that point. After denying Morris’ motion for mistrial, the trial court instructed the jury that it should only consider the evidence
{¶ 47} Thus, the trial court did not abuse its discretion in denying Morris’ motion for a mistrial. Accordingly, we overrule Morris’ second assignment of error.
V. Third Assignment of Error – Manifest Weight of the Evidence
{¶ 48} In his third assignment of error, Morris argues his convictions are against the manifest weight of the evidence.
{¶ 49} When presented with a manifest weight argument, an appellate court engages in a limited weighing of the evidence to determine whether sufficient competent, credible evidence supports the jury‘s verdict. State v. Salinas, 10th Dist. No. 09AP-1201, 2010-Ohio-4738, ¶ 32, citing State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). “When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a ‘thirteenth juror’ and disagrees with the factfinder‘s resolution of the conflicting testimony.” Thompkins at 387, quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982). Determinations of credibility and weight of the testimony are primarily for the trier of fact. State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus. Thus, the jury may take note of the inconsistencies and resolve them accordingly, “believ[ing] all, part, or none of a witness‘s testimony.” State v. Raver, 10th Dist. No. 02AP-604, 2003-Ohio-958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67 (1964).
{¶ 50} An appellate court considering a manifest weight challenge “may not merely substitute its view for that of the trier of fact, but must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine
{¶ 51} The entirety of Morris’ manifest weight of the evidence argument is that the victims’ testimony lacked credibility. Morris asserts that because the testimony of J.H. and A.P. contained inconsistencies, the jury clearly lost its way in believing J.H. and A.P. However, the presence of conflicting evidence does not render a verdict against the manifest weight of the evidence. State v. Lindsey, 10th Dist. No. 14AP-751, 2015-Ohio-2169, ¶ 43, citing Raver at ¶ 21. Additionally, a conviction is not agаinst the manifest weight of the evidence merely because the trier of fact believed the state‘s version of events over the defendant‘s version. Lindsey at ¶ 43, citing State v. Gale, 10th Dist. No. 05AP-708, 2006-Ohio-1523, ¶ 19. Despite Morris’ assertion that J.H. and A.P. presented internally inconsistent testimony, we note that both J.H. and A.P. testified in great detail and Wilkinson, the forensic interviewer at Children‘s Hospital, corroborated J.H.‘s and A.P.‘s version of events. Additionally, in the controlled call between A.P. and Morris, Morris admits to a sexual relationship with A.P., undermining his argument that there was little evidence establishing he ever had sexual contact with either of the victims. Thus, in light оf the evidence discussed above, as well as the record in its entirety, we do not find the jury clearly lost its way in concluding Morris committed the offenses of rape, unlawful sexual conduct with a minor, and importuning.
{¶ 52} For these reasons, we conclude the manifest weight of the evidence supports Morris’ convictions. Accordingly, we overrule Morris’ third assignment of error.
VI. Fourth Assignment of Error – Crim.R. 29 Motion for Acquittal
{¶ 53} In his fourth and final assignment of error, Morris argues the trial court erred in denying his
{¶ 54}
{¶ 55} Rather than challenge the evidence related to any particular element of the charged offenses, Morris argues that there was insufficient evidence to sustain his convictions because the state failed to present corroborating evidence to support the testimony of A.P. and J.H. However, a victim‘s testimony, standing alone, constitutes sufficient evidence to support charges of sexual conduct. State v. W.J., 10th Dist. No. 14AP-457, 2015-Ohio-2353, ¶ 35, citing State v. Timmons, 10th Dist. No. 13AP-1038, 2014-Ohio-3520, ¶ 23, citing State v. Henderson, 10th Dist. No. 10AP-1029, 2011-Ohio-4761, ¶ 17. Moreover, corroborating evidence is not required to prove the rape offenses. W.J. at ¶ 35, citing Timmons at ¶ 23, citing State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, ¶ 53 (noting “[c]orroboration of victim testimony in rape cases is not required“).
{¶ 56} Moreover, to the extent Morris argues his convictions of importuning are against the manifest weight of the evidence because the state never introduced alleged text messages between A.P. and Morris purporting to show solicitation, we note that Wilkinson testified that A.P. told her about the various times Morris asked her to engage in different sexual acts with him. Thus, contrary to Morris’ assertion, the state did present evidence that Morris solicited sexual contact from A.P. Accordingly, the state presented sufficient evidence of the offenses of rape, unlawful sexual conduct with a minor, and importuning, and the trial court did not err in overruling Morris’
{¶ 57} Based on the foregoing reasons, the trial court did not err in granting the state‘s motion for joinder or in denying Morris’ motion for a mistrial. Additionally, Morris’ convictions are not against the manifest weight of the evidence, and the trial court did not err in denying Morris’
Judgments affirmed.
SADLER and DORRIAN, JJ., concur.