STATE OF OHIO, Plaintiff-Appellee, - vs - DAVID WILLIAM NEAL, Defendant-Appellant.
CASE NO. CA2016-06-033
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO CLERMONT COUNTY
4/24/2017
[Cite as State v. Neal, 2017-Ohio-1493.]
CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2015CR00439
Louis Rubenstein, John D. Hill, Jr., 125 East Court Street, Suite 1000, Cincinnati, Ohio 45202, for defendant-appellant
O P I N I O N
RINGLAND, J.
{¶ 1} Defendant-appellant, David Neal, appeals his conviction in the Clermont County Court of Common Pleas for gross sexual imposition and sexual imposition. For the reasons detailed below, we affirm.
{¶ 2} The charges stem from allegations made by K.C., who alleged that appellant had rubbed her vagina under her shorts and on top of her underwear with his hand. A few
{¶ 3} On August 6, 2015, appellant was indicted for one count of gross sexual imposition in violation of
{¶ 4} Appellant pled not guilty to the charges and a jury trial was held in April 2016. At the conclusion of trial, appellant was found guilty. The trial court merged the convictions and proceeded with sentencing on the gross sexual imposition charge and imposed an 18-month prison sentence. Appellant now appeals, raising five assignments of error for review.
{¶ 5} Assignment of Error No. 1:
{¶ 6} DEFENDANT‘S CONVICTIONS WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE.
{¶ 7} Assignment of Error No. 2:
{¶ 8} THE JUDGMENT OF THE TRIAL COURT WAS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 9} In his first and second assignments of error, appellant argues that his convictions are not supported by sufficient evidence and are against the manifest weight of the evidence. We will address both arguments together.
{¶ 10} The concepts of sufficiency of the evidence and weight of the evidence are legally distinct. State v. Wright, 12th Dist. Butler No. CA2012-08-152, 2014-Ohio-985, ¶ 10. Nonetheless, as this court has observed, a finding that a conviction is supported by the manifest weight of the evidence is also dispositive of the issue of sufficiency. State v. Jones, 12th Dist. Butler No. CA2012-03-049, 2013-Ohio-150, ¶ 19. “Because sufficiency is required to take a case to the jury, a finding that a conviction is supported by the weight of the evidence must necessarily include a finding of sufficiency.” State v. Hart, 12th Dist. Brown No. CA2011-03-008, 2012-Ohio-1896, ¶ 43.
{¶ 11} A manifest weight challenge scrutinizes the proclivity of the greater amount of credible evidence, offered at a trial, to support one side of the issue over another. State v. Barnett, 12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, ¶ 14. In assessing whether a conviction is against the manifest weight of the evidence, a reviewing court examines the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses, and determines 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. State v. Morgan, 12th Dist. Butler Nos. CA2013-08-146 and CA2013-08-147, 2014-Ohio-2472, ¶ 34.
{¶ 12} Gross sexual imposition is defined in
(A) 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:
(1) The offender purposely compels the other person, or one of the other persons, to submit by force or threat of force.
{¶ 13} In addition, sexual imposition is defined in
(A) 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:
* * *
(4) The other person, or one of the other persons, is thirteen years of age or older but less than sixteen years of age, whether or not the offender knows the age of such person, and the offender is at least eighteen years of age and four or more years older than such other person.
{¶ 14} Based on our review, we find appellant‘s convictions are both supported by
{¶ 15} K.C.‘s testimony was further corroborated by the existence of a controlled telephone call between herself and appellant.
K.C.: Okay. Well um - - well, do you remember what happened Saturday?
Appellant: When?
K.C.: Saturday night when we were watching the movie?
Appellant: Yeah.
K.C.: Well, can you like not do that again? It really made me uncomfortable.
Appellant: Yeah. Yeah. Yeah.
K.C.: Okay. Promise?
Appellant: Yeah
{¶ 17} This court has specifically recognized that “force” “need not be overt and physically brutal, but can be subtle and psychological.” State v. Rankin, 12th Dist. Clinton No. CA2004-06-015, 2005-Ohio-6165, ¶ 47. A child‘s will can be overcome by fear and duress when an important figure of authority tells the child to do something, and commands the child not to tell anyone about it. State v. Dehner, 12th Dist. Clermont No. CA2012-12-090, 2013-Ohio-3576, ¶ 19. When the state proves that the child‘s will was overcome by fear or duress, the element of force is established. Id.
{¶ 18} We find that appellant‘s argument with respect to the “force” requirement is without merit. K.C. testified that appellant touched her vagina for five to ten minutes, placing her in fear because of their relationship. K.C. explained that she was afraid to speak while appellant was touching her because he might have tried to go further. K.C. also testified that after appellant stopped touching her he told her not to report what he had done. There was also evidence that appellant exercised authority over K.C. and would discipline her. In short, we find appellant‘s conviction for gross sexual imposition was both supported by sufficient evidence and was not against the manifest weight of the evidence.
{¶ 19} Next, appellant argues that the state did not present any corroborating evidence to support his conviction for sexual imposition under
{¶ 20} In the present case, in addition to the K.C.‘s testimony, the state presented evidence that K.C. had told her friend about the abuse, who in turn informed K.C.‘s mother. In addition, the state presented evidence from a controlled phone call between K.C. and appellant where, in referencing the incident the prior Saturday night, K.C. told appellant that his actions had made her uncomfortable and asked him never to do that again, to which appellant responded “Yeah. Yeah. Yeah.” Accordingly, we find
{¶ 21} In conclusion, we find the state presented sufficient evidence to sustain appellant‘s convictions and the jury‘s verdict was not against the manifest weight of the evidence. Acting as trier of fact, the jury was in the best position to resolve factual questions and evaluate witness credibility. Accordingly, we find appellant‘s first and second assignments of error are without merit and hereby overruled.
{¶ 22} Assignment of Error No. 3:
{¶ 23} THE PROSECUTING ATTORNEY COMMITTED MISCONDUCT BY PRESENTING IMPROPER ARGTUMENT [sic] TO THE JURY DURING CLOSING ARGUMENT.
{¶ 24} In his third assignment of error, appellant alleges the state committed prosecutorial misconduct. We do not find any merit to appellant‘s argument.
{¶ 25} The state is entitled to a certain degree of latitude in making its concluding
{¶ 26} Appellant never objected to any of these issues during trial and thus he has waived all except plain error. State v. Cotton, 12th Dist. Butler No. CA2003-06-159, 2004-Ohio-4409, ¶ 19. Under a plain error analysis, a reviewing court will not reverse a conviction based on a trial court‘s instruction “unless, but for the error, the outcome of the trial clearly would have been otherwise.” State v. Dougherty, 12th Dist. Preble No. CA2013-12-014, 2014-Ohio-4760, ¶ 54.
{¶ 27} Appellant first raises error with the state‘s reference to “unrefuted” evidence. During the state‘s initial closing, the prosecutor twice mentioned that the K.C.‘s testimony was “unrefuted.” We note that appellant is correct that the testimony was not “unrefuted,” as he vigorously denied the allegations during an interview with detectives. While we agree that a prosecutor must avoid misstating evidence at trial, we fail to find that the prosecutor‘s statements were “gross misstatements” as appellant suggests. Nor do we find that such statements constituted “improper vouching.” Moreover, appellant‘s trial counsel directly addressed the “unrefuted” remarks in his own closing argument:
So the State‘s elusion [sic] - - eluding [sic] to the fact that [K.C.‘s] testimony, which we heard here Tuesday for a brief period of time, and then we saw again on the Mayerson Center interview,
which was taken shortly thereafter, is unrefuted. While this is not evidence, closing arguments, it‘s our opportunity to argue the evidence. And I - - I - - that is simply not true. You heard the statement from [appellant]. “I did not do it. She‘s a troubled young girl. I didn‘t do it.” Repeated denials even when pressed by Investigator Haught. “I‘m taking clothing. We‘re going to do DNA. Are we going to find her DNA on her underwear? If it‘s there and you touched her, we will.” “No.” It‘s refuted. It did not happen. He denied it, denied it, denied it.
{¶ 28} We cannot conclude that the statement made by the prosecutor that the evidence was “unrefuted” amounted to prosecutorial misconduct. As noted above, appellant‘s trial counsel took full opportunity to expound on the state‘s argument and present his own counterarguments. There is simply nothing to suggest that the outcome of the trial would have been different had this “unrefuted” statement not been made. Nor can we conclude that the “unrefuted” comment relates to appellant‘s failure to testify. The state is permitted, during closing, to comment on the failure of the defense to present evidence in support of its case. State v. Myers, 12th Dist. Fayette No. CA2005-12-035, 2007-Ohio-915, ¶ 25. In sum, we find no error in the state‘s comment, and therefore no plain error.
{¶ 29} Next, appellant argues that the prosecutor improperly vouched for the credibility by stating that appellant‘s trial counsel had “engaged in victim blaming” and by inviting the jury to sympathize with K.C.. The relevant portion of the state‘s argument includes:
When [K.C.] testified here two days ago, ask yourself. Did she sound like a normal teenage girl? * * * Today, you‘re going to be asked to determine [K.C.‘s] truthfulness.
Remind yourself, she never wavered in her account of what happened. She never said, he touched me in the bedroom, he touched me in the kitchen, he touched me in the car when we were alone. She never said his fingers went inside my vagina. Sure, some of the details are in a different order, so what. That doesn‘t matter. Remember, when we talked in voir dire about forgetting some of the details of important events and remembering facts differently?
This happened some time ago. It happened about 10 months ago, and this is a 14-year-old girl. The significant facts of that horrific evening never changed. It happened on the couch. He massaged my feet. He rubbed up my legs. He went under my shorts. He rubbed my private over my underwear. It lasted 5 to 10 minutes. Asked if it felt good. Asked to twerk. Told her not to tell anybody, because he would get in trouble. [Appellant‘s trial counsel] engaged in victim blaming. She made all of this up. She made all of this up because – let‘s see. * * * She was bored. And she wanted to wear short-shorts, * * *. She didn‘t make this up. It took courage. It took courage for her to stand up here in front of 14 people she doesn‘t know and talk about a sexual encounter with [appellant].
Ask yourself, what did she gain from this? The answer should be, absolutely nothing. What did she lose? She told her herself. * * * It wasn‘t her choice. It was his choice. He made the despicable choice to touch [K.C.] inappropriately on that night. [Appellant‘s trial counsel] wants you to believe that reasonable doubt is an impossible high standard that the state can‘t meet. Reasonable doubt is not an impossibly high standard. Reasonable doubt is based on reason and common sense. Reasonable doubt is right here. You all know what it is.
And if you still have a doubt about what happened that evening * * * I want you to watch the Mayerson video again. Watch it closely. Watch her description of how he rubbed her privates. It specifically at 14:20, her description is very graphic. After you watch that again, you won‘t have any doubt that this happened. And as I said when we first met, your vote counts here.
Make your vote count today, and find the Defendant guilty. Find him guilty of breaching the trust that [K.C.] placed in him. Find him guilty of making her no longer feel safe, and find him guilty of gross sexual imposition and sexual imposition. Thank you.
{¶ 30} We initially note, contrary to appellant‘s suggestion, that referring to K.C. as the victim was not improper and did not amount to improper vouching as there was evidence that K.C., in fact, was the victim. The prosecutor‘s statement regarding K.C. is merely a recitation of the position that the state took throughout the case. Simply, referring to the “victim,” as opposed to the “alleged victim,” or something similar, does not amount to prosecutorial misconduct or unfairly prejudice appellant.
{¶ 32} In conclusion, we have reviewed the entirety of the record and do not find any instances of prosecutorial misconduct during the closing arguments. The state‘s position was a direct response to counter appellant‘s claims that K.C. had fabricated the allegations for personal reasons. Moreover, even if we had found certain remarks improper, they do not rise to the level of plain error since the outcome of the trial would not have clearly been different absent the allegedly improper remarks. State v. Jester, 12th Dist. Butler No. CA2010-10-264, 2012-Ohio-544, ¶ 43. Accordingly, appellant‘s third assignment of error is overruled.
{¶ 33} Assignment of Error No. 4:
{¶ 34} DEFENDANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
{¶ 35} In his fourth assignment of error, appellant argues that his trial counsel was ineffective for failing to object during closing arguments, again referencing the same alleged instances of prosecutorial misconduct that he contests in his third assignment of error. We disagree.
{¶ 37} As addressed above, the statements made during closing argument were not prosecutorial misconduct and his trial counsel was not deficient. Moreover, appellant fails to show any prejudice. The issues were properly presented to the jury and largely rested on the credibility of K.C., whose credibility was corroborated by other evidence, including the controlled phone call, which highly suggested that appellant knew exactly what conduct had occurred that night with a corresponding promise that it would not occur in the future. Appellant has not shown that the outcome of the trial would have been different had his trial counsel made such objections. Accordingly, appellant‘s fourth assignment of error is overruled.
{¶ 38} Assignment of Error No. 5:
{¶ 39} THE TRIAL COURT ABUSED ITS DISCRETION IN ADMITTING THE VIDEO OF THE FORENSIC INTERVIEW OF [K.C.]
{¶ 40} In his fifth assignment of error, appellant argues that the trial court erred by permitting the state to introduce the forensic interview between K.C. and a social worker. Appellant contends that the statements made during the interview do not fall under the “medical treatment” exception to hearsay under
{¶ 41}
{¶ 42} The record indicates that the interview between K.C. and the social worker was done for purposes of diagnosis or treatment and thus satisfies the medical treatment exception under
{¶ 43} Assignment of Error No. 6:
{¶ 44} THE CUMULATIVE EFFECT OF THE PRECEDING ERRORS DENIED
{¶ 45} In his sixth assignment of error, appellant argues that he received an unfair trial based on the number of alleged errors during the course of the proceeding and therefore he is entitled to a new trial. We find appellant‘s argument to be meritless.
{¶ 46} According to the cumulative error doctrine, “a conviction will be reversed where the cumulative effect of errors in a trial deprives a defendant of the constitutional right to a fair trial even though each of numerous instances of trial court error does not individually constitute cause for reversal.” State v. McClurkin, 12th Dist. Butler No. CA2007-03-071, 2010-Ohio-1938, ¶ 105. However, because we have found that no errors occurred during appellant‘s trial, we find that appellant was not deprived of a fair trial, and the cumulative error doctrine is inapplicable. Appellant‘s sixth assignment of error is overruled.
{¶ 47} Judgment affirmed.
HENDRICKSON, P.J., and PIPER, J., concur.