Stаte of Ohio, Plaintiff-Appellee, v. Mathias D. Petty, Defendant-Appellant.
No. 15AP-950
IN THE COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT
March 23, 2017
2017-Ohio-1062
BROWN, J.
(C.P.C. No. 14CR-3744), (REGULAR CALENDAR)
Rendered on March 23, 2017
On brief: Ron O‘Brien, Prosecuting Attorney, and Seth L. Gilbert, for appellee. Argued: Seth L. Gilbert.
On brief: The Hemminger Law Firm, LLC, and Chad K. Hemminger, for appellant. Argued: Chad K. Hemminger.
APPEAL from the Franklin County Court of Common Pleas
BROWN, J.
{¶ 1} Defendant-appellant, Mathias D. Petty, appeals from a judgment of conviction and sentence entered by the Franklin County Court of Common Pleas following a jury trial in which the jury returned verdicts finding him guilty of rape and importuning.
{¶ 2} On July 16, 2014, appellant was indicted on one count of rape, in violation of
{¶ 3} The jury trial began June 2, 2015. At trial, C.A., the alleged victim, testified she began using the Badoo app on June 10, 2014. According to C.A., people use the app “to meet people.” (Tr. Vol. II at 174.) A user is supposed to be 18 or older, requiring the user to click a button indicating, “Yes, I‘m 18.” (Tr. Vol. II at 175.)
{¶ 5} On July 5, 2014, C.A. and her mother went to the residence of C.A.‘s aunt, located “[d]own the street,” approximately ten minutes walking distance from their home. (Tr. Vol. II at 180.) Other family members and friends were at the residence.
{¶ 6} C.A. and Thai were sending each other messages that evening. Later that evening, C.A. went outside “[b]ecause that person texted me saying, Oh, I want to come over, and I said okay.” (Tr. Vol. II at 183.) In response to the nature of the messages, C.A. testified “[h]e was asking me the address. He was asking me if I was going to do it then. I needed to do it, and if I wasn‘t, then he doesn‘t have to come.” She defined “it” as he wanted her to “[p]erform oral sex.” (Tr. Vol. II at 184.)
{¶ 7} At trial, C.A. identified appellant as Thai. Thai arrived at the address that evening and C.A. described the events, as follows:
I sat there for a minute, and I was just texting. And he said, You look pretty occupied, and I said okay. * * * Then he said, If you‘re not going to do it, I can just leave. * * * I said okay, and I stopped texting. * * * He asked me if he wanted to if I was going to pull it out or if he was.
(Tr. Vol. II at 191.)
{¶ 8} C.A. testified thаt appellant was talking about “[h]is penis.” He unzipped his pants. “He took it out, and I got down on my knees, and I started sucking - I started giving oral sex.” (Tr. Vol. II at 192.) C.A. put appellant‘s penis in her mouth. Appellant “was moving my head” with his hand. (Tr. Vol. II at 193.) C.A. was on the porch with him for “[t]en, fifteen minutes.” (Tr. Vol. II at 198.)
{¶ 9} C.A. testified that her mother came outside and “started yelling.” Her mother “was cussing a lot.” (Tr. Vol. II at 193.) C.A. stood up and her mother “asked what was what did I just do, and I said, [n]othing. I wouldn‘t tell her the truth. And then she started getting louder, and then that‘s when everybody in the kitchen came outside.” (Tr. Vol. II at 194.) When C.A. refused to talk to her mother, C.A. testified her mother “yelled, and she hit me.” (Tr. Vol. II at 195.)
{¶ 11} Initially, C.A. told the responding officer that nothing had occurred. C.A. testified: “I wouldn‘t tell him the truth, but I don‘t remember what I said.” She did not tell the truth because she did not want to deal with the consequences. (Tr. Vol. II аt 202.) Later, at the hospital, C.A. told a detective what happened. C.A. picked appellant‘s photograph from an array and identified the individual as the person who appeared on the porch that evening.
{¶ 12} C.A. had never met appellant before that evening. When asked why she went along with appellant‘s wishes, C.A. stated she was scared. On cross-examination, C.A. stated that after appellant arrived, she texted with him for about five minutes before he came up to the porch.
{¶ 13} Columbus Police Officer David Schulz testified that on July 5, 2014, at approximately 11:30 p.m., he received a dispatch regarding a reported sexual assault of a minor. Officer Schulz met with the mother, L.A., who was “frustrated, upset, and just distraught all around.” (Tr. Vol. II at 79.) The incident had taken place down the street, approximately less than a quarter of a mile. After speaking with L.A., Officer Schulz then drove to C.A.‘s aunt‘s house, where he spoke with C.A. C.A. initially denied anything wrong had occurred.
{¶ 14} After speaking with C.A., Officer Schulz then spoke a second time with L.A. and L.A. gave the officer her daughter‘s phone. The officer was ablе to view some messages and learned that the daughter had used a message service through an app identified as “Badoo.” (Tr. Vol. II at 83.)
{¶ 15} Defense counsel objected to the officer testifying regarding the content of the text messages and the trial court overruled the objection. Officer Schulz testified that the messages were “trying to establish a basic contact and, specifically for that day, trying to set up a meeting day or meeting time and place between [C.A.] and the other individual.” (Tr. Vol. II at 86.) After viewing the messages, Officer Schulz then spoke again with C.A., and she told him what happened on the porch.
{¶ 17} On cross-examination, Officer Schulz testified that L.A. indicated that her daughter became acquainted with appellant through the Badoo app. The officer did not keep the phone as evidence. The officer acknowledged therе was a difference in the story from the version L.A. provided and the initial version C.A. provided. C.A. gave a different statement the second time Officer Schulz spoke with her.
{¶ 18} During Officer Schulz‘s direct examination, defense counsel objected to the testimony regarding the text messages based on hearsay. The transcript indicates that most of defense counsel‘s explanation regarding the objection is inaudible. After Officer Schulz testified, appellant again objected and the trial court overruled the objection.
{¶ 19} L.A. also testified. C.A. was 12 years of age in July 2014. L.A.‘s sister, T.S., who is C.A‘s aunt, lived down the street. On July 5, 2014, L.A. and C.A. went to T.S.‘s residence to socialize. Most of the individuals were at the dining room table playing cards, and C.A. went outside to sit on the front porch.
{¶ 20} Later, L.A. went to the front door to check on C.A. L.A. testified that when she looked out the front door, “I saw my daughter kneeled down on her knees. There was a comforter under her knees, and I saw a person standing in front of her holding something in his hand.” (Tr. Vol. III at 275.) She stated the person was a man and “[h]e had long, dirty, scraggly hair.” (Tr. Vol. III at 276.) At trial, L.A. identified appellant as the individual shе observed on the porch that evening. L.A. testified she observed “my daughter performing oral sex on him.” (Tr. Vol. III at 277.) She saw his penis, and observed appellant zip up his pants.
{¶ 21} L.A. testified that she opened the door and yelled at appellant. As she walked outside, appellant backed up against the banister and zipped up his pants. L.A. positioned herself near the stairs in order to prevent him from leaving. L.A. struck C.A. and pushed appellant against the house; she tried to obtain whatever was in his hand, whether a cell phone or wallet because she wanted to know his name. As she reached for it, he snatched it away and pushed her; appellant vaulted over the banister and ran to a car parked across the street.
{¶ 23} On cross-examination, L.A. testified that when she looked out the door appellant “was facing me.” (Tr. Vol. III at 307.) When asked whether she told police that appellant‘s back was to the door, L.A. stated: “His back was to the door once we came - once I came out and was on the porch.” (Tr. Vol. III at 308.) According to L.A., “[h]is back was not to me when I came out outside.” (Tr. Vol. III at 309.) L.A. stated she “did see the details of his face * * * his penis, and [C.A.] performing oral sex.” (Tr. Vol. III at 310-11.)
{¶ 24} Lauren Moore is a master‘s level social worker at Children‘s and is a formally trained forensic interviewer. Her department deals with alleged sexual and physical abuse of children in the emergency department as well as medical trauma. On July 6, 2014, Moore met and interviewed C.A. at the hospital. C.A. told Moore that she put his “thing” in her mouth, later clarified as his penis, and C.A. started “sucking on sucking it.” (Tr. Vol. III, 365, 369.)
{¶ 25} Lindsay Eckles Hoffman, a sexual assault nurse examiner with Children‘s, identified State‘s exhibit C as the hospital medical records for C.A. Hoffman testified that C.A. told her: “So she said that so just on here, it‘s oral contact, and patient‘s mouth to assailant‘s genitals.” (Tr. Vol. IV at 406.) Hoffman performed a mouth swab of C.A. for any potential DNA evidence. C.A. denied any history of ejaculation.
{¶ 26} Hallie Garofalo is a forensic scientist in the DNA unit of the Ohio Bureau of Criminal Identification and Investigation (“BCI“). BCI performed DNA testing on the rape kit collected in the instant case. Garofalo testified that no DNA foreign to C.A. was detected on the swabs. Garofalo testified that the results were not surprising “given that there was not ejaculation.” (Tr. Vol. IV at 477.)
{¶ 27} The first witness for the defense was Steven Petty, appellant‘s father. Appellant was living at his father‘s residence at the time of the alleged incident. On July 5, 2014, Steven and his fiancée were visiting friends, and Steven returned home at
{¶ 28} Robert Britt is a private investigator with Britt Investigative Services. Britt testified that he attempted to “interview both the alleged victim and her mother and to drive the distances between the two residences that were involved and take some photographs.” (Tr. Vol. V at 701-02.) He was unable to make contact with either of those individuals. He took photographs of the scene and drove the distance from T.S.‘s residence to Steven‘s residence. Britt testified that it took him approximately 17 minutes to travel that distance.
{¶ 29} Appellant testified on his own behalf. He started using the Badoo app which requires “at least one picture, a username, and an age.” Appellant “was looking for somebody to talk to. I was looking for a girl. I was on there for dating. I was on there for hooking up.” (Tr. Vol. V at 719.) Appellant “messaged back and forth on the Badoo” app with C.A. (Tr. Vol. V at 726.) According to appellant, C.A.‘s Badoo profile indicated she was 23 years of age.
{¶ 30} At first, the conversations were “[j]ust being flirty [a]nd it did lead to sexual conversations a lot.” Appellant denied knowing that C.A. was 12 years of age, especially based on their conversations. At one point, C.A. “said, Do you want to hook up? And I just responded with, What do you mean?” (Tr. Vol. V at 732.) According to appellant, C.A. responded: “Are you trying to fuck or not? And I responded with, like, I don‘t really just jump into sex, but, like, I‘m down to explore other things. I‘m down to do other things. And I meant, like, sexually, but not intercourse.” (Tr. Vol. V at 733.)
{¶ 31} On July 5, 2014, C.A. “got a hold of me when she was done with her commitments and was, like, Yeah, you know, you can come over. And she gave me her address.” (Tr. Vol. V at 747.) Appellant left his father‘s house at approximately 11:30 p.m. Appellant testified: “I believe I had said, Are we going to do what we‘ve been talking about all week? And by that, I was referring to watching Orange is the New Black and cuddling up. And, yeah, I do believe that we would have had some form of - - you know, some form of physicality during that.” (Tr. Vol. V at 750.)
{¶ 32} Upon arriving, appellant texted C.A. again asking “[d]o you want to come out to the car? Because I was smoking. I didn‘t want to just walk up to the porch with a cigarette. Some people don‘t like that, you know.” (Tr. Vol. V at 754.)
{¶ 34} Appellant then gave the following account of events:
As I was saying, she was glued to her phone, and then she laughed and put her phone down. She kind of got, like, cute and flirty with me, and she was like, Do you want me to do it? And I was like, you know - - and she slid down from the chair onto the ground and was right - - I‘m, like, right over right beside her. She could reach out and touch me. You know what I mean?
* * *
She said those words and then did that, and I said, like, You‘re not even going to invite me inside?
[S]he had grabbed onto the - - I believe it was my right pocket, like yeah, my right pocket, like, with her hand, just inside the front of my pocket. You know, and I wear kind of baggie clothes, so it‘s a baggie and she‘s, like, got her hand in my pocket, so I know what she‘s saying.
And I say, You‘re not going to invite me inside? And she said, What‘s wrong with right here? We‘re alone. And I kind of, like I gave, like, this laugh * * *.
(Tr. Vol. V at 762-63.)
{¶ 35} Appellant further testified:
[S]he‘s holding on to the my jeans right here and my pocket right here and is, like, I guess, this way, pulling on them, like, down, and I‘m holding up my belt. And I remember this because I had just got a nice belt, and I‘m holding on to my belt. And I say, You are crazy. Beсause I had just said she says, What‘s wrong with out here? We‘re alone. I‘m like, You are crazy.
And literally, right when that happens, right when we‘re in that position, an older woman, that I now know as [L.A.], comes out of the house and is like, What the fuck are you doing?
You know, and she looks at me, and I‘m like, Is there some kind of a problem? I said, If there is, I don‘t want any trouble. If there‘s an issue, I can just leave.
She punches - - I can‘t say she punched. I can say that she hit [C.A.]. I don‘t know if it was open fist, closed fist, I have no idea, but she hit [C.A.] when [C.A.] responded to her.
Because after I said what I said, [C.A.] said, Mom, we‘re not doing anything. And, you know, I didn‘t - - her mom, Shut up.
And, you know, she grabbed me in my torso. I was closer to the banister after she had, like when she had come out and got to talking to us and everything, I‘m closer to the rail. I said banister, but the rail.
And she grabs me by my torso and pulls me to the, like, the wall, right next to the chair. And when she does that, I‘m like at this point I‘m not comfortable, you know. I think that she - - I don‘t know if she‘s drunk. I don‘t know if she -- I don‘t know what‘s going on.
And so when she does that, I just I get out of the way of her and I get over that banister or rail right like that. It‘s a little bit of a drop. And I just go to my car. I‘m, like, obviously this is a situаtion I don‘t want to be in.
(Tr. Vol. V at 764-65.)
{¶ 36} When asked about C.A.‘s appearance on the porch, appellant testified:
I didn‘t see a difference in age appropriateness. I mean, she had something blocking her, so I couldn‘t and she was sitting down, so I couldn‘t see, like, her height or anything like that. But, no, I didn‘t see anything that shocked me, I didn‘t see - - I mean, she looked her age to me. She looked the age that she told me.
(Tr. Vol. V at 767.)
{¶ 37} When questioned whether he asked C.A. to perform oral sex that evening, appellant stated: “No, I didn‘t. We had talked about it over the phone. I don‘t know if I could say that it happened that day.” (Tr. Vol. V at 768.) Appellant denied that his penis was ever exposed. He stated that C.A. “was lying” about performing oral sex on him. (Tr. Vol. V at 777.) He denied that L.A. said anything about C.A.‘s age while he was on the porch. According to appellant, “I just thought I left the scene of a mom putting her hands
{¶ 38} Appellant acknowledged that “when I was 16 years old I was convicted of a robbery. I was charged by the court and bound over as an adult and tried as an adult. I pled guilty to that and received a four-year sentence in prison for robbery.” (Tr. Vol. V, 780.)
{¶ 39} On cross-examination, appellant testified he is 24 years of age and that he was previously convicted of robbery with a weapon. He acknowledged that Badoo was an app used primarily for individuals to meet and engage in sexual activity. He denied knowing that C.A. was not 23 years of age when he arrived at her aunt‘s house. Appellant believed that Officer Schulz was “mistaken” about messages he observed on C.A.‘s phone indicating that appellant was asking C.A. whether she was going to perform oral sex. (Tr. Vol. V at 795.) When asked what messages he sent to C.A., appellant testified: “I probably couldn‘t recall anything exactly, but I definitely was talking about how I would love to, you know, get head from her and that I would love to touch her, I would love to be inside her, things like that.” (Tr. Vol. V at 797.) He acknowledged talking tо C.A. about oral sex “that day.” When asked whether he solicited C.A. for oral sex, appellant responded: “I would say yes.” (Tr. Vol. V at 799.)
{¶ 40} The jury found appellant guilty of Count 1 of the indictment, rape, in violation of
{¶ 41} On appeal, appellant sets forth the following four assignments of error for this court‘s review:
[I.] The trial court erred in overruling Defendant-Appellant‘s objection and allowing the Plaintiff-Appellee‘s witnesses to testify about the hearsay contents of the written messages.
[II.] The trial court erred in denying Defendant-Appellant‘s motion for a judgment of acquittal as to the repeat violent offender specification on count one of the indictment due to the Plaintiff-Appellee‘s failure to present sufficient evidence to satisfy the requirements of the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
[III.] Defendant-Appellant‘s convictions for all counts of the indictment were against the manifest weight of the evidence.
[IV.] Defendant-Appellant‘s aggregated prison sentence is clearly and convincingly contrary to law and/or the product of an abuse of discretion by the trial court.
{¶ 42} By his first assignment of error, appellant contends the trial court erred in overruling his objection and allowing Officer Schulz to testify regarding the contents of written messages he observed on C.A.‘s phone. Appellant argues that the testimony should have been excluded on hearsay grounds and under the “best evidence rule.”
{¶ 43} During Officer Schulz‘s testimony, defense counsel objected on hearsay grounds. After Officer Schulz testified, defense counsel stated the following on the record:
Yes, I wanted to speak concerning these the text messages or Badoo messages that were allegedly relayed between my client and the alleged victim.
One of the issues I have is, A, I do believe that it‘s hearsay; and, two, I do believe that they shouldn‘t be admissible, because it can‘t even be identified that those messages are even from my client.
I believe if you look it up, it‘s called, like, totem pole hearsay, where if you have an email message from somebody and you haven‘t verified that that email message is from them, we just think that, you know, there‘s a message, and we think that it might be him, but we have no clue whether that message was actually from him. That was just a guess.
And there‘s been no cell phone records or anything provided to suggest that those messages were from my client. And so I don‘t think that that should be admissible for that, and in the future. I don‘t think it should be admissible for future purposes.
(Tr. Vol. II at 155-56.)
I think, first of all, I believe, if I understand the defense, it‘s that they had these communications and he showed up. So, first of all, to somehow suggest that it‘s not him is contrary to what the presented defense is going to be.
In addition, what he‘s arguing goes to weight, not admissibility. That is for the jury to determine. The victim will be testifying about her communications and what she received. And, in fact, the communications and their conversations are one of the charges. So that is weight, not admissibility.
(Tr. Vol. II at 157.)
{¶ 45} Defense counsel responded:
I think the identifying issue, the issue that I‘m talking about, is a foundation. There‘s no foundation laid that the messages between them whether later my client reveals that or not, whether he testifies or not, it was never identified that that was even his message.
It was, like, there was a message, and that was him, and he was saying we‘re meeting to have some oral sex.
There was no foundation. I mean, that‘s just that‘s total hearsay. We don‘t know whose statements they are. And it‘s - - I believe the correct terminology is totem pole hearsay.
And there‘s specific case law regarding emails, text messages, and verification of those to make sure that it is actually the person that is purported to be speaking. Because if it‘s going to come in under hearsay, it‘s going to come in under an admission; and if it‘s going to be an admission, you have to verify that it‘s my client making those statements.
(Tr. Vol. II at 158.)
{¶ 46} The trial court responded and ruled as follows:
All right. I understand your argument, but I don‘t think the proper remedy for that is exclusion. I think it‘s good subject for cross-examination. And so any argument that the account wasn‘t linked to the Defendant and he just haрpened upon the porch on the same night that the messages indicate, let‘s meet this night, this time, what have you I haven‘t read the
messages, as you both know. It‘s a proper subject for cross-examination.
(Tr. Vol. II at 159.)
{¶ 47} On appeal, appellant argues the trial court should have excluded evidence concerning the text messages on multiple grounds, including that (1) the content of the messages constituted hearsay within hearsay and should have been excluded under
{¶ 48} As noted, appellant objected during Officer Schulz‘s testimony, but parts of the transcript are marked as inaudible with respect to the supporting argument. The nature of the objection is hearsay based on an argument that the messages only showed one-half of the conversation between C.A. and appellant. Initially, we note these messages are not hearsay.
{¶ 49} It was not until after Officer Schulz finished testifying that defense counsel articulated a lack-of-foundation objection. Such an objection, however, “must be ‘contemporaneous’ to the alleged error.” State v. Copley, 10th Dist. No. 04AP-511, 2005-Ohio-896, ¶ 32, citing State v. Murphy, 91 Ohio St.3d 516, 532 (2001). Moreover, an objection on one ground does not preserve for appeal other grounds. State v. Vu, 10th Dist. No. 09AP-606, 2010-Ohio-4019, ¶ 30, citing State v. Gulertekin, 10th Dist. No. 97APA12-1607 (Dec. 3, 1998). Thus, appellant did not preserve an objection based on lack of foundation.
{¶ 50} On appeal, appellant appears to argue that his untimely lack-of-foundation objection includes an objection based on the best evidence rule. Appellant, however, made no objection based on the best evidence rule. Having failed to object on this ground, appellant waived all but plаin error.
{¶ 51} Under
{¶ 52} Appellant appears to argue that the outcome of the trial would have been different because absent Officer Schulz‘s testimony regarding the messages, appellant would not have testified at trial. Appellant has failed to demonstrate plain error, as the testimony regarding the messages was admissible as a party-opponent admission. Further, appellant admitted he met C.A. through the Badoo app and that they exchanged messages. Appellant‘s trial counsel noted in opening statement that appellant sent the messages and arranged to meet C.A. C.A. also testified regаrding the messages.
{¶ 53} Appellant argues that Officer Schulz did not have personal knowledge of the name of the application the two used for text messages, that he did not confirm the owner of the phone, and that he was told by a third party that appellant was a party to the text messages.
{¶ 54} Finally, appellant argues that the trial court should have excluded the testimony regarding the messages under the “best evidence rule.”
{¶ 56} By his second assignment of error, appellant contends the еvidence was insufficient to establish the repeat violent offender specification attached to the rape count. Appellant argues there was a lack of sufficient probative evidence involving the use of force and, therefore, there was insufficient evidence to support the guilty verdict on the repeat violent offender specification.
{¶ 57} When a defendant challenges the sufficiency of the evidence, an appellate court ” ‘construes the evidence in favor of the prosecution and determines whether such evidence permits any rational trier of fact to find the essential elements of the offense beyond a reasonable doubt.’ ” State v. Watkins, 10th Dist. No. 16AP-142, 2016-Ohio-8272, ¶ 31, quoting State v. Hill, 10th Dist. No. 07AP-889, 2008-Ohio-4257, ¶ 41. When an appellate court conducts such a review, it ” ‘does not engage in a determination of witness credibility, rather it essentially assumes the state‘s witnesses testified truthfully and determines if that testimony satisfies each element of the crime.’ ” Id., quoting Hill at ¶ 41.
{¶ 58} According to
(1) The person is being sentencеd for committing or for complicity in committing any of the following:
(a) Aggravated murder, murder, any felony of the first or second degree that is an offense of violence, or an attempt to commit any of these offenses if the attempt is a felony of the first or second degree;
(b) An offense under an existing or former law of this state, another state, or the United States that is or was substantially equivalent to an offense described in division (CC)(1)(a) of this section.
(2) The person previously was convicted of or pleaded guilty to an offense described in division (CC)(1)(a) or (b) of this section.
{¶ 59} We note that the parties stipulated to appellant‘s prior conviction of aggravated robbery. Appellant argues the evidence failed to demonstrate that the rape was an offense of violence. The term “offense of violence” is defined in
{¶ 60} By his third assignment of error, appellant contends that his convictions were against the manifest weight of the evidence. Under Ohio law, “[t]he weight of the evidence concerns the inclination of the greater amount of credible evidence offered to support one side of the issue rather than the other.” State v. Boone, 10th Dist. No. 14AP-87, 2015-Ohio-2648, ¶ 49, citing State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), superseded by constitutional amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89 (1997). In considering a manifest weight challenge, “an appellate court may not merely substitute its view for that of the trier of fact.” Id. The appellate 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 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.” Id. Revеrsing a conviction as against the manifest weight of the evidence “must be exercised with caution,” and such a reversal “is granted only in the most ‘exceptional case in which the evidence weighs heavily against the conviction.’ ” State v. Brown, 8th Dist. No. 98881, 2013-Ohio-2690, ¶ 27, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).
{¶ 61}
{¶ 62} Appellant argues that since there was conflicting testimony throughout the trial, the convictions for rape and importuning were against the manifest weight of the evidence. Appellant contends that the two different versions C.A. presented of the events, first denying anything improper occurred and then changing her story after L.A. hit her and influencеd her story, impugn her credibility. Appellant also argues that L.A. presented conflicting testimony regarding whether or not appellant was facing her as she looked through the front door and stepped onto the porch. Further, appellant contends that the lack of DNA evidence and the failure of officers to obtain C.A.‘s cell phone with the Badoo messages contribute to the fact that the evidence does not support the convictions. According to appellant, his testimony was consistent with C.A.‘s original version of events.
{¶ 63} While there was conflicting testimony presented at trial, “an accused is not entitled to a reversal on manifest weight grounds merely because inconsistent evidence was presented at trial.” State v. Rankin, 10th Dist. No. 10AP-1118, 2011-Ohio-5131, ¶ 29. The trier of fact, in this case, the jury, may take into consideration conflicting testimony from a witness in determining credibility and the persuasiveness of the account by either discounting or resolving the discrepancies. State v. Taylor, 10th Dist. No. 14AP-254, 2015-Ohio-2490, ¶ 34, citing Midstate Educators Credit Union, Inc. v. Werner, 175 Ohio App.3d 288, 2008-Ohio-641 (10th Dist.). “The finder of fact at trial is in the best position to weigh the credibility of testimony by assessing the demeanor of the witnesses and the manner in which they testify, their connection or relationship with the parties, and their interest, if any, in the outcome. The finder of fact can accept all, part or none of the testimony offered by a witness, whether it is expert opinion or eyewitness fact, and whether it is merely evidential or tends to prove the ultimate fact.” State v. Mullins, 10th Dist. No. 16AP-236, 2016-Ohio-8347, ¶ 39.
{¶ 64} On review, there was sufficient, competent, credible evidence provided at trial to permit reasonable minds to find appellant guilty of both offenses. Appellant admitted that he solicited C.A. for oral sex. As to the rape charge, C.A. testified that in July 2014, she was 12 years of age. According to C.A., appellant unzipped his pants, “[h]e took it out, and I got down on my knees, and I started sucking I started giving oral sex.”
{¶ 65} Appellant also contends that his conviction for the rеpeat violent offender specification is against the manifest weight of the evidence. Similar to his sufficiency argument, previously addressed under the second assignment of error, appellant contends there was a lack of sufficient probative evidence involving the use of force.
{¶ 66} Sufficiency of the evidence and manifest weight of the evidence are distinct concepts; they are “quantitatively and qualitatively different.” Thompkins at 386. “When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the manifest weight of the evidence, the appellate court sits as a ‘thirteenth juror’ and disagrees with the factfinder‘s resolution of the conflicting testimony.” Id. at 387, quoting Tibbs v. Florida, 457 U.S. 31, 32 (1982). In order for an appellate court to reverse the judgment of a trial court on manifest weight grounds, the appellate court must unanimously disagree with the jury‘s resolution of the conflicting evidence. Id.
{¶ 67} In the second assignment of error, we determined that plaintiff-appellee, the State of Ohio, was not required to demonstrate violence as an element of rape in order to classify rape as an offense of violence for purposes of the repeat violent offender specification. “Offense of violence” is defined in
{¶ 68} Based on this court‘s review of the record, we find that the jury could have reasonably believed the state‘s version of events. Furthermore, appellant admitted that he talked about oral sex with C.A. and that he solicited C.A. to perform oral sex on him. The state presented sufficient, competent, credible evidence to permit reasonable minds to find appellant guilty beyond a reasonable doubt of rape, importuning, and the repeat violent offender specification. We find the jury did not lose its way and create a manifest miscarriage of justice. Thus, the vеrdicts are not against the manifest weight of the evidence. Appellant‘s third assignment of error is overruled.
{¶ 70} The trial court imposed a sentence of ten years to life on the rape count. A conviction, pursuant to
{¶ 71}
{¶ 72} Appellant also contends the trial court erred in not merging the rape and importuning counts pursuant to
{¶ 74} The Supreme Court of Ohio clarified the determination of whether offenses are allied offenses of similar import within the meaning of
{¶ 75} Further, “offenses are not allied offenses of similar import if they are not alike in their significance and their resulting harm.” Id. at ¶ 21. The Ruff court held that “two or more offenses of dissimilar import exist within the meaning of
{¶ 76} In the present case, the trial court determined that the offenses of rape and importuning constituted offenses of dissimilar import, were committed separately, and were committed with a separate animus. The trial court noted that the importuning offense was entirely completed before the rape occurred.
{¶ 77} The two offenses in this case are based on separate conduct.
{¶ 78}
{¶ 79} Moreover, these two offenses involve separate harms and, therefore, are not allied offenses. The harm created from importuning is the asking, influencing or pressuring someone less than 13 years of age to engage in sexual conduct. This results in harm even if no sexual conduct occurs.
{¶ 80} Appellant argues that importuning requires in-person solicitation because
{¶ 81}
A. Then he said, If you‘re not going to do it, I can just leave.
Q. And then what did you say?
A. I said okay, and I stopped texting.
Q. And then what?
A. He asked me if he wanted to if I was going to pull it out or if he was.
Q. Now, when he said are you going to do “it,” are we still talking about the giving him head?
A. Yes, ma‘am.
Q. And when you say who‘s going to pull “it” out, what‘s he talking about?
* * *
A. His penis.
(Tr. Vol. II at 191-92.)
{¶ 82} Given this testimоny, the record contains evidence that appellant committed the crime of importuning by in-person solicitation after he arrived on the porch. Further, the record supports the trial court‘s finding that the importuning offense was completed before the rape occurred. Accordingly, the trial court did not err in refusing to merge the importuning and rape counts.
{¶ 83} Finally, appellant argues the trial court erred in imposing consecutive sentences by failing to consider the statutory factor of proportionality.
{¶ 84} As noted under the facts, the trial court sentenced appellant to an indefinite term of 10 years to life imprisonment for rape, an additional consecutive 3 years for the
{¶ 85}
If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public, and if the court also finds any of the following:
(a) The offender committed one or more multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to
section 2929.16 ,2929.17 , or2929.18 of the Revised Code , or was under post-release control for a prior offense.(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender‘s conduct.
(c) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶ 86} Thus, pursuant to
{¶ 87} In determining compliance with
{¶ 88} In this case, the trial court stated during the sentencing hearing:
The Court notes that the offender was on bail before trial or sentencing in Case No. 1733 when the offense in 3744 occurred.
The Court further notes that the Defendant was prior - - had a prior adjudication of delinquency and a history of criminal convictions, noting the F1 agg robb out of 2009.
The Court notes the Defendant failed to respond favorably in the past to a sanction imposed for criminal convictions, and that the injury to the victim in both cases, the robbery excuse me, the burglary and in the rape case, those victims suffered serious physical, psychological, and/or economic harm as a result of these offenses.
The Court finally notеs, as far as seriousness factors, finally, that the injury to the victim was worsened by the physical or mental condition or the age of the victim, noting the victim in 3744 was 12 years old at the time of the offense.
* * *
Finally, the Court will order the terms of incarceration ordered in 14CR-1733 and 14CR-3744 to run consecutive, noting the great harm, physical, psychological, and economic, suffered by the victims in both cases; that the Defendant has
an extensive criminal history; and that he was out on bond in 1733 when the rape and 3744 occurred.
(Dec. 8, 2015 Tr. at 27-29.)
{¶ 89} The trial court‘s sentencing entry provides, as follows:
Counts One and Two shall be served consecutively to each other. Said sentence shall be served consecutively to Case No. 14CR-1733.
Pursuant to
R.C. 2929.14 , the Court finds that the shortest prison terms would demean the seriousness of Defendant‘s conduct, and not adequately protect the public from future crime by the offender, noting Defendant‘s criminal history. The Court finds Defendant is the worst form of offender, who poses the greatest risk of recidivism, noting the offenses committed in 14cr3744 occurred while Defendant was out on bond in 14cr733.Further, Consecutive sentences arе necessary to protect the public from future crime by Defendant. Consecutive sentences are not disproportionate to the seriousness of Defendant‘s conduct and to the danger Defendant poses to the public. The Court further finds that the psychological harm caused to Defendant‘s victims by the multiple offenses in 14cr1733 and 14cr3744 was so great or unusual that no single prison term for any of the offenses committed as part of a single course of conduct adequately reflects the seriousness of Defendant‘s conduct, and that Defendant‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime.
(Sept. 22, 2015 Jgmt. Entry at 2-3.)
{¶ 90} Appellant argues that the trial court did not make a finding that consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public. After thoroughly reviewing the record of the sentencing hearing, we cannot discern whether the trial court made the required proportionality finding. In reaching this conclusion, we are mindful that the trial court need not engage in a talismanic recitation of the statutory language. Bonnell at ¶ 37. However, where a reviewing court cannot discern from the record whether or not the trial court engaged in the correct analysis, the trial court‘s imposition of consecutive sentences cannot be upheld. Id. at ¶ 29.
We can discern from the trial court‘s statement that Bonnell had “shown very little respect for society and the rules of society” that it found a need to protect the public from future crime or to punish Bonnell. We also can conclude that the court found that Bonnell‘s “atrocious” record related to a history of criminal conduct that demonstrated the need for consecutive sentences to protect the public from future crime. But it never addressed the **proportionality** of consecutive sentences to the seriousness of Bonnell‘s conduct and the danger he posed to the public, which in this case involved an aggregate sentence of eight years and five months in prison fоr taking $117 in change from vending machines.
(Emphasis added.)
{¶ 92} The court concluded that the trial court‘s “description of Bonnell‘s criminal record as atrocious and its notation of his lack of respect for society do not permit us to conclude that the trial court had made the mandated statutory findings in accordance with
{¶ 93} Similar to Bonnell, the trial court in the instant case found that appellant was on bail in another case when he committed the offenses in this case, that he had a prior conviction for aggravated robbery, that he failed to respond favorably in the past to a sanction imposed for criminal convictions, and that the injury to the victims in the burglary and rape cases were serious physical, psychological, and/or economic harm which was increased by the victim‘s young age in the rape case. These comments relate to the findings required by
{¶ 94} Having determined that the trial court failed to make the requisite findings under
{¶ 95} Based on the foregoing, appellant‘s first, second, and third assignments of error are overruled, and his fourth assignment of error is sustained in part and overruled in part. The judgment of the Franklin County Court of Common Pleas is affirmed in part and reversed in part, and this cause is remanded to that court for resentencing.
Judgment affirmed in part and reversed in part; cause remanded.
KLATT and SADLER, JJ., concur.