STATE OF OHIO, Plаintiff-Appellee, vs. BRIAN POWERS, Defendant-Appellant.
Case No. 19CA3868
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY
[Cite as State v. Powers, 2020-Ohio-7042.]
APPEARANCES:
Matthew F. Loesch, Portsmouth, Ohio, for Appellant.
Shane Tieman, Scioto County Prosecutor, and Jay S. Willis, Assistant Scioto County Prosecutor, Portsmouth, Ohio, for Appellee.
Smith, P.J.
{¶1} This is an appeal from a Scioto County Court of Common Pleas judgment entry convicting Appellant, Brian Powers, of three counts of rape, two counts of kidnapping, endangering children, intimidation of a victim, and illegal use of a minor in nudity-oriented material. On appeal, Appellant asserts eight assignments of error: (1) the trial court committed reversible error when it denied his motion for separate trials, (2) the trial court abused its discretion when it found the alleged child victim competent to testify as a witness, (3) Appellant’s counsel was ineffective, (4) Appellant’s
{¶2} After reviewing the record and the applicаble law, we overrule all of Appellant’s assignments of error, except we find that there was insufficient evidence to support Appellant’s convictions for intimidating a victim and endangering children. Therefore, we affirm in part and vacate in part the trial court’s judgment entry of conviction.
I. PROCEDURAL HISTORY
{¶3} On February 28, 2018, the State charged Appellant with three counts of rape in violation of
{¶4} On September 25, 2018, the trial court held an in camera hearing to determine if A.C. was competent to testify because she was four years old at the time of the assault. The judge invited the parties to submit questions, but neither party did. The judge began by asking A.C. some preliminary questions, such as the date of her birthday, and if she had any brothers and sisters. The judge then asked A.C. whether she understood what telling the truth meant. She answered affirmatively. The judge then asked A.C. several questions in an attempt to ascertain whether she understood the concept of telling the truth. It appears that A.C. answered truthfully to the judge’s questions, and further stated that she understood she should not lie, but should “tell the truth.”
{¶5} On that same day, the court also addressed the State’s motion for A.C. to testify via closed circuit video pursuant to
{¶7} The case went to trial in January 2019. The following facts were gleaned from the trial court’s record. Brian Carver (hereinafter Brian) and Hanna Giles are the biological parents of A.C., the minor victim in this cаse. Michelle Carver is A.C.’s stepmother. Sheri Trout is A.C.’s maternal grandmother and Appellant, Brian Powers aka “Pappy Brian,” (hereinafter Pappy Brian or Appellant) is her boyfriend. Because Hanna became incarcerated, Brian had sole custody of A.C., but Sheri had visitation rights.
{¶8} Upon A.C. returning from a visit with Sheri on July 20, 2017, Brian and Michelle noticed that she was covered with what appeared to be some sort of insect bites. Consequently, they decided to take A.C. to an urgent care facility in Portsmouth. Brian testified that while in the exam
{¶9} Michelle testified that while they were at the urgent care facility, she asked Brian who Peter was but he did not know. Michelle testified that Brian asked A.C. who Peter was and A.C. responded that Sheri and Appellant had a fight and she (A.C.) had to go to Peter’s house. Michelle testified that Brian then asked A.C. where Peter lived. She did not know, but did say that Peter had hurt her and touched her between her legs. Michelle testified that she told the doctor at the urgent care facility that she thought A.C. had been molested and the doctor recommended taking A.C. to SOMC in Portsmouth.
{¶10} Once they arrived at SOMC, the staff reported the assault to the Portsmouth Police Department, which dispatched Officer Irvin to the hospital to make a report. Officer Irvin’s report indicated that he interviewed Brian. Brian’s statement, as reflected in Officer Irvin’s report, indicated that after returning from a visit with her grandmother (Sheri) and Appellant (Sheri’s boyfriend), A.C. had bug bites on her legs, so he took her
{¶11} Officer Irvin then interviewed A.C. A.C.’s statements, as reflected in Officer Irvin’s report, indicated that she told Officer Irvin that “Peter put his thumb in her ‘cha cha.’ ” She also described numerous details pertaining to Peter, such as he played with his cats and dogs, built a fire, etc.
{¶12} The SOMC Emergency Department Emergency Record notes state: “Stepmother reports that the child told her that a man named Peter put his thumb in her ‘private area.’ Incident occurred in Sciotoville.” The staff at SOMC told Brian and Michelle to take A.C. to Adena Health System in Chillicothe (“Adena”) because it was better equipped to handle the assault.
{¶13} Brian and Michelle then took A.C. to Adena where Dr. Zoran Naumovski and Sexual Assault Nurse Examiner Ashley King examined A.C. Nurse King testified that when she told A.C. she was going to have to examine A.C.’s private parts, A.C. began to cry. Nurse King utilized a sexual assault kit during the exam to collect evidence from A.C. that included taking photos of A.C.’s injuries and swabbing her external body parts for DNA, including the anal and perianal area, which is between the anus and vagina. Nurse King described A.C.’s vaginal area as having
{¶14} Dr. Naumovski, also from Adena, testified that he examined A.C. “from head to toe,” and she was normal except for her genital area. He testified that A.C. was combative, tearful, and would not cooperate during the genital exam. He testified that her genital area was red and swollen indicating irritation, which could be “mechanical” or “trauma.” He further testified that when he examined A.C. approximately two weeks later her genital area had healed.
{¶15} Both Brian and Michelle testified that while at Adena, A.C. disclosed to them that it was not Peter, but Pappy Brian (Appellant) who touched her genital area. Nurse King testified that A.C. mentioned to her that “Peter” was the perpetrator. The medical records from Adena also indicate that Peter was the assailant.
{¶17} Cynthia Justice was a therapist for Mahajan Therapeutics who treated A.C. Ms. Justice saw A.C. weekly. After six months of treatment, she diagnosed A.C. with post-traumatic stress syndrome (“PTSD”). Ms. Justice explained that PTSD is “an illness that happens after someone has either been exposed to a trauma or exposed to a traumatic event where they feel that they’ve been threatened, life’s been threatened, or someone else has been threatened.” Justice testified that A.C. exhibited the following symptoms of PTSD: “irritable behavior, anger outbursts, sleep disturbances, nightmares, some avoidance of situations.” Ms. Justice, reading from her
{¶18} Rachel Gray, a caseworker for Children’s Services, was assigned to A.C.’s case. Her job was to investigate to make sure children are safe. Based on the report of abuse, Ms. Gray first called Brian to understand the situation, and then checked with Adena to ensure all proper medical steps were taken. After confirming there was no emergency situation because A.C. was safe from the perpetrator, she made two unannounced visits to Brian and Michelle’s house, with the first visit on August 24, 2017. Ms. Grey testified that during her visit she asked why A.C. was so sad, and she said that A.C. apologized for fibbing: she said there was no Peter, it was “Papaw Brian.”
{¶19} A.C. testified at trial via two-way closed-circuit video. After some preliminary questions to ensure A.C. understood the different female body parts, their locations, and the difference between being honest and
{¶20} Detective Crapyou, a detective with the Portsmouth Police Department, headed the investigation of the sexual assault of A.C. Detective Crapyou testified that as he was reading Officer Irvin’s report of the sexual assault of A.C. on July 24, 2017, he received a call from Michelle who told him that the perpetrator of the sexual assault was not Peter, but Brian Powers, Sheri Trout’s boyfriend. Consequently, Detective Crapyou went to see Sheri at her home on July 28, 2017. When he told Sheri of the allegations, she said “[Appellant] wouldn’t have done this.” On July 29, 2017, Appellant was arrested on a separate domestic violence charge and put in jail.
{¶21} After returning from vacation on August 28, 2017, Detective Crapyou received a call from Sheri stating that she needed to talk to him at once. When he arrived at her home, Sheri informed him that while she was watching movies on Appellant’s PS3 she noticed images of nude young females, as well as a Google search history indicating searches that pertained
{¶22} Dylan Waggy, a Computer Forensic Specialist for BCI, accessed the PS3’s hard drive, and cloned it, i.e. he made a duplicate of what was on the hard drive. Mr. Waggy testified that a duplicate is preserved while the original material is removed from the PS3 and preserved on a computer so none of it can be lost. Mr. Waggy then ran the duplicated content though the PS3 and found 9 photos that he “screenshotted.” The photos were identified as originating from the following websites: “Young Porn Safe Off, Teen Fuck Hardcore, Free Hardcore Teen, Free Teen Russian, X Videos Porn at Ultra Young Sex, and Triple X Infant Young Sex” among others. Mr. Waggy determined that all these photos were placed on the hard drive at approximately 10:00 p.m. on July 28, 2017.
{¶23} Timothy Augsback, a Forensic Scientist at BCI, analyzes evidence for the presence of DNA and then compares that DNA to known samples to see if they have a common source. Augsback created a DNA
{¶24} The jury convicted Appellant on all counts. The court issued an entry that (1) merged counts 1 (rape), 3 (rape), 5 (kidnapping), and 6 (kidnapping) with count 4 (rape) and sentenced Appellant to a life sentence without the possibility of parole on count 4; (2) sentenced Appellant to 12 months in prison on count 2 for illegal use of minor in nudity-oriented material; (3) sentenced Appellant to 36 months in prison on count 7 for endangering children; and (4) sentenced Appellant to 36 months in prison on count 8 for intimidating a victim. All these sentences are to be served consecutively for an aggregate sentence of life, plus seven years. It is from this judgment that Appellant appeals, asserting eight assignments of error.
ASSIGNMENTS OF ERROR
- “THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED APPELLANT’S MOTIONS FOR SEPARATE TRIALS.
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FOUND THE ALLEGED CHILD VICTIM COMPETENT TO TESTIFY AS A WITNESS. - APPELLANT’S TRIAL COUNSEL WAS INEFFECTIVE IN HIS REPRESENTATION OF THE APPELLANT.
- APPELLANT’S CONFRONTATION CLAUSE RIGHTS WERE VIOLATED WHEN THE ALLEGED CHILD VICTIM WAS PERMITTED TO TESTIFY VIA CLOSED CIRCUIT CAMERA.
- APPELLANT’S CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDECE.
- IMPROPER HEARSAY EVIDENCE WAS PRESENTED AT APPELLANT’S TRIAL.
- THE STATE OF OHIO MADE IMPROPER COMMENTS DURING CLOSING ARGUMENTS WHICH SHOULD HAVE RESULTED IN A MISTRIAL.
- CUMULATIVE ERRORS OCCURRED DURING THE APPELLANT’S TRIAL WHICH WARRANT REVERSAL OF HIS CONVICTIONS.”
First Assignment of Error
{¶25} Appellant’s first assignment of error asserts that the trial court committed reversible error when it denied his motion to sever count two, illegal use of a minor in nudity-oriented material, from the remaining charges (rape, kidnapping, endangering children, and intimidating a witness, victim, or attorney) for purposes of trial. Appellant argues that trying the illegal use of a minor in nudity-oriented material count with the other counts would prejudice his defense against the remaining charges of rape,
{¶26} In response, the State argues that Ohio law favors joinder of offenses that arе of the same or similar character citing State v. Hariston, 4th Dist. Scioto No. 06CA3081, 2007-Ohio-3880. The State argues that the offense of illegal use of nudity-oriented material involving a minor is similar in character to sex offenses committed against A.C. because both involve child victims and criminal sexual behavior.
{¶27} The State also “submits that the evidence was admissible as ‘other acts evidence.’ ” However, as the State recognizes, other acts evidence cannot be used to show that the defendant acted in conformity with his character, but may be admitted to show a defendant’s scheme, plan, or system in doing an act. Although not made clear in its brief, the State appears to imply that Appellant’s possession of nudity-oriented materials was evidence of a plan to commit the rape offenses against A.C.
{¶28} “ ‘We review the trial court‘s decision on a motion to sever under an abuse of discretion standard.’ ” State v. Evans, 4th Dist. Jackson No. 10CA1, 2012-Ohio-1562, ¶ 35, quoting State v. Heflin, 6th Dist. Lucas No. L-10-1268, 2011-Ohio-4134, ¶ 12, citing State v. Lott, 51 Ohio St.3d 160, 163, 555 N.E.2d 293 (1990). “An abuse of discretion connotes more than a mere error of judgment; it implies that the court‘s attitude is arbitrary, unreasonable, or unconscionable.” Id., citing State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
{¶29} However, if a motion “for severance of counts due to prejudicial misjoinder” is not “renewed at the close of the state‘s case or at the conclusion of all the evidence,” it is waived, and will be governed by a plain-error analysis. State v. Miller, 105 Ohio App.3d 679, 691, 664 N.E.2d 1309 (4th Dist. 1995), citing State v. Strobel, 51 Ohio St.3d 31, 554 N.E.2d 916 (1988), paragraph two of the syllabus, State v. Owens, 51 Ohio App.2d 132, 366 N.E.2d 1367 (1975), paragraph two of the syllabus, State v. Cisternino, 8th Dist. Cuyahoga No. 66387, 1994 WL 590523 (Oct. 27, 1994). “
{¶30} While Appellant filed a motion to sever count two in the trial court, which was denied, he did not renew his motion at the close of the State’s case or at the close of all the evidence. Therefore, we review this assignment of error under a plain error analysis.
2. Severance
{¶31}
{¶32} “The law favors joining multiple criminal offenses in a single trial.” State v. Franklin, 62 Ohio St.3d 118, 122, 580 N.E.2d 1 (1991), citing
{¶33} However,
{¶34} The State has two methods it may use to negate any claims of prejudice caused by joinder: (1) it may argue that it could have introduced evidence of the separate count under the “other acts” portion of
{¶35} In Appellant’s one-page brief filed in thе trial court, he alleged that “trying the two charges together would prejudice him in the eyes of the jury by portraying him in an unfavorable light.” And in his appellate brief, Appellant alleges that the child pornography has no relevancy to the sexual assault allegations regarding A.C. He also alleges that the evidence supporting the child pornography was “speculative and weak.”
{¶37} In his appeal, Appellant submits there is no relevancy between the illegal use of a minor in nudity-oriented material and the sexual assault charges (rape, kidnapping). However, nowhere does he argue how trying all the charges together will result in prejudice. We also find that the cases Appellant cites (Slaven - court erred in joining sexual assault of two different children because evidence in one case would not be admissible in the other, and Clements - error for court to join unrelated charges of burglary and robbery in the same trial) are not particularly persuasive to the particular facts of this case. Accordingly, we find that Appellant has failed his burden of “affirmatively showing that his rights were prejudiced” in the trial court or on appeal, so there is no plain error.
{¶38} Even assuming arguendo that trying count two with the remaining charges did result in prejudice, because there is evidence “amply sufficient to sustain each verdict, whether or not the indictments were tried together,” Appellant’s claim of prejudice from trying the sexual assault
{¶39} We also find that the evidence in this case supporting both the illegal use of nudity-oriented material and the sexual assault charges against A.C. is “simple and direct” and therefore trying them together was not reversible error. See State v. Craig, 11th Dist. Lake No. 2016-L-113, 2017-Ohio-8939, ¶ 29-31. In Craig, the defendant was charged with numerous criminal counts, including rape of his daughter and pandering obscenity involving a minor for possessing “749 photographs/videos of child pornography, with many of pictures featuring girls appearing to be the same age [as the victim].” Id. at ¶ 10.
{¶40} The defendant in Craig appealed the trial court’s denial of his motion to sever the pandering obscenity involving a minor charge from the rape charge, alleging it denied him a fair trial. Id. at ¶ 22. While the court found that the images from the pandering charge were not admissible in regard to the rape charge under
{¶42} For all the aforementioned reasons, under these facts, we find no plain error because the trial court‘s refusal to sever count two did not affect Appellant‘s substantial rights so as to create a manifest miscarriage of justice. Therefore, we overrule Appellant‘s first assignment or error.
Second Assignment of Error
{¶43} In his second assignment of error, Appellant alleges that the trial court abused its discretion when it found that A.C. was competent to testify.
{¶45} In response, the State argues that counsel has no right to participate in a child competency hearing citing State v. Wilson, 156 Ohio St. 525, 529, 103 N.E.2d 552. The State also argues that the trial judge properly used open-ended questions when testing A.C.‘s competence.
1. Participation of Counsel in a Competency Hearing
{¶46} In McMillan, the defendant was charged with gross sexual imposition involving an eight-year-old victim. The court held an in camera hearing to determine the competency of the victim with only the victim, the judge, and a court reporter present. The court found the victim competent to testify and ultimately Appellant was convicted.
{¶47} On appeal, Appellant argued that the trial court violatеd the defendant‘s confrontation rights by excluding defendant‘s counsel from the competency hearing. The court of appeals overruled Appellant‘s argument because it found that the Confrontation Clause guarantees only an
{¶48} While we afford “due consideration and respect to decisions in other appellate districts, we are not bound to follow them.” See Phillips v. Phillips, 5th Dist. Stark No. 2014CA00090, 2014-Ohio-5439, 25 N.E.3d 371, ¶ 32. We are not persuaded by the Ninth District‘s decision in McMillan because it fails to cite any statute or source of authority in concluding that it is improper to exclude counsel from a competency hearing. Moreover, in State v. Wilson, 156 Ohio St. 525, 529, 103 N.E.2d 552, precedent we must follow, the court stated: “[w]hen the child is presented in court and the fact is revealed that the age of ten has not been reached, it is the duty of the trial judge to immediately examine the child, without the participation or interference of counsel, to determine the child‘s competency to testify.” (Emphasis added.). Therefore, we reject Appellant‘s argument that the trial court erred in not having counsel present at the in cаmera competency hearing.
2. Competency Determination of A Child Under the Age of 10
{¶49} Determining the competency of a juvenile is “within the sound discretion of the trial judge.” State v. Frazier, 61 Ohio St.3d 247, 251, 574 N.E.2d 483 (1991). An “abuse of discretion” requires more than an error of judgment; it implies the court‘s attitude is unreasonable, arbitrary or unconscionable. State v. Merryman, 4th Dist. Athens No. 12CA28, 2013-Ohio-4810, ¶ 1.
b. Determining Competency
{¶50} “When a witness is under the age of ten, the trial judge has a duty to conduct a voir dire examination to determine the child‘s competency to testify.” State v. Rickard, 3rd Dist. Mercer No. 10-91-5, 1992 WL 239325, *2 (Sept. 25, 1992), citing Frazier, 61 Ohio St.3d at 250-51, 574 N.E.2d 483 (1991). In determining whether a child under ten is competent to testify, the trial court must take into consideration (1) the child‘s ability to receive accurate impressions of fact or to observe acts about which he or she will testify, (2) the child‘s ability to recollect those impressions or observations, (3) the child‘s ability to communicate what was observed, (4) the child‘s understanding of truth and falsity, and (5) the child‘s appreciation of his or her responsibility to be truthful. Frazier, 61 Ohio St.3d at 251, 574
{¶51} The trial court tested A.C.‘s ability to accurately perceive, recollect, and communicate impressions of fact. For example, A.C. properly answered that the sun is out during the day and the moon is out at night. She also stated that she had an older sister named Bree. She named several television shows that she watched.
{¶52} The court alsо tested A.C.‘s ability to tell the truth. The judge asked A.C. if she knew what it meant to tell a lie. She answered yes. The court tested A.C.‘s ability to understand the truth by asking her whether the court saying it was dark outside was the truth or a lie. She answered a lie. The judge also asked A.C. if a file that he was holding was red. She answered no. A.C. also stated that she understood she should not lie, but should “tell the truth.”
{¶53} In sum, based on our review of these responses and the competency transcript as a whole, we find that the judge considered the five factors from Frazier. Consequently, we find that the court was not unreasonable, arbitrary, or unconscionable in finding that A.C. was competent to testify. Therefore, we overrule Appellant‘s second assignment of error.
{¶54} In his third assignment of error, Appellant argues that his counsel was ineffective. “To establish constitutionally ineffective assistance of counsel, a defendant must show (1) that his counsel‘s performance was deficient and (2) that the deficient performance prejudiced the defense and deprived him of a fair trial.” State v. Lamb, 4th Dist. Scioto No. 17CA3796, 2018-Ohio-1405, 110 N.E.3d 564, ¶ 11, citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001), State v. Goff, 82 Ohio St.3d 123, 139, 694 N.E.2d 916 (1998). ” ‘In order to show deficient performance, the defendant must prove that counsel‘s performance fell below an objective level of reasonable representation. To show prejudice, the defendant must show a reasonable probability that, but for counsel‘s error, the result of the proceeding would have been different.’ ” Id., quoting State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 95.
{¶55} Appellant first argues his counsel was ineffective because he failed to participate in the competency hearing. As we recognized in addressing Appellant‘s second assignment of error, counsel has no right to
{¶56} Appellant also argues that his counsel was ineffective because he did not renew his motion to sever count two at the close of the evidence in this case. Had Appellant renewed his motion to sever at the close of the evidence, our standard in reviewing Appellant‘s first assignment of error would have been abuse of discretion, as opposed to plain error. State v. Evans, 4th Dist. Jackson No. 10CA1, 2012-Ohio-1562, ¶ 35. But, even under an abuse of discretion standard of review, we find that the outcome of Appellant‘s motion to sever would not have changed because the trial court did not abuse its discretion in denying Appellant‘s motion to sever. The trial court‘s denial was not an abuse of discretion because Appеllant did not sustain his burden of proving that a failure to sever would result in prejudice to him, and even assuming arguendo the trial court‘s denial of Appellant‘s motion to sever would result in prejudice, any such prejudice was negated because there was evidence “amply sufficient to sustain each verdict,” and the evidence supporting the charges was direct and simple. In other words, but for counsel‘s error, the result of the proceeding would not have been different, and absent such prejudice, Appellant‘s claim for ineffective assistance of counsel fails. Accordingly, we reject Appellant‘s third
Fourth Assignment of Error
{¶57} In his fourth assignment of error, Appellant argues that his confrontation rights were violated when the trial court permitted A.C. to testify via closed-circuit camera. Appellant alleges a Confrontation Clause violation. However, we have already rejected a Confrontation Clause challenge to permitting a minor victim of a sex offense to testify via closed-circuit video under
{¶58} In the body of his brief, it appears that Appellant‘s actual argument is that the trial court did not make the necessary findings under
{¶59} The State argues that evidence adduced at the
1. Standard of Review
{¶61} The standard of review in determining whether a trial court has made sufficient findings under
2. R.C. 2945.481
{¶62} Under
- (1) The persistent refusal of the child victim to testify despite judicial requests to do so;
- (2) The inability of the child victim to communicate about the alleged violation or offense because of extreme fear, failure of memory, or another similar reason;
- (3) The substantial likelihood that the child victim will suffer serious emotional trauma from so testifying.
{¶63} At the
{¶65} After the hearing, the trial judge issued an entry permitting A.C. to testify via closed circuit video, finding that
{¶66} We hold that in concluding that A.C. could testify via closed circuit video, the trial court made the appropriate findings in that if A.C. was
Fifth Assignment of Error
{¶67} In his fifth assignment of error, Appellant asserts that his convictions for Rape, Illegal Use of a Minor in Nudity-Oriented Material, Kidnapping, Endangering Children, and Intimidation of a Victim are not supported by sufficient evidence and are against the manifest weight of the evidence.
1. The Law
a. Sufficiency of the Evidence
{¶68} “When reviewing the sufficiency of the evidence supporting a criminal conviction, an appellate court‘s role is to examine the evidence admitted at trial to determine whether the evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt.” State v. Simms, 165 Ohio App.3d 83, 86, 844 N.E.2d 1212 (4th Dist. 2005), ¶ 9, citing State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. The question is “whether, after
b. Manifest Weight of the Evidence
{¶69} In a manifest-weight-of-the-evidence review, the court examines “the entire record, weighs the evidence and all reasonable inferences, considers the credibility of 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. Simms, 165 Ohio App.3d 83, 844 N.E.2d 1212, ¶ 17 (4th Dist. 2005), citing State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541. However, “[i]n making this review, the appellate court must be mindful that the original trier of fact was in the best position to judge the credibility of witnesses and the weight to be given the evidence.” Simms at ¶ 18, citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. ” ‘A reviewing court will not reverse a conviction where there is substantial evidence upon which the court could reasonably conclude that all the elements of an offense have been proven
2. Criminal Convictions
a. Rape
{¶70}
(A)(1) No person shall engage in sexual conduct with another who is not the spouse of the offender or who is the spouse of the offender but is living separate and apart from the offender, when any of the following applies:
* * *
(b) The other person is less than thirteen years of age, whether or not the offender knows the age of the other person. (Emphasis added.)
“Sexual conduct” means vaginal intercourse between a male and female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apрaratus, or other object into the vaginal or anal opening of another.
Penetration, however slight, is sufficient to complete vaginal or anal intercourse. (Emphasis added.)
{¶71} Appellant questions A.C.‘s credibility and argues that even if she can be believed, her testimony can only prove sexual contact, as opposed to sexual conduct, which is required for rape because her testimony did not allege penetration.
{¶72} The State argues that the physical evidence of injury to A.C.‘s genital area, including her hymen, as well as the testimonial evidence identifying Appellant as the assailant, was sufficient to support Appellant‘s conviction and to show that his conviction is not against the manifest weight of the evidence.
{¶73} Under a sufficiency review, with regard to whether penetration occurred, there is at least some evidence that Appellant‘s thumb penetrated A.C.‘s vagina and there is a significant amount of evidence that A.C. suffered physical injuries to her genital area, including “abrasions, redness, and swelling in her vaginal area, and her hymen was “beefy red in appearance and swollen,” which was “not normal.” Further, there was male DNA recovered from A.C.‘s genital area. Finally, A.C. identified Appellant as the perpetrator. Viewing the evidence in a light most favorable to the prosecution, we find that any rationаl trier of fact could have found the
{¶74} With regard to the manifest weight of the evidence review, there is testimonial evidence that Appellant merely “touched” A.C. over clothing in her genital area, but there is also evidence that Appellant put his thumb “in” A.C.‘s vagina. A.C. initially identified the perpetrator as a man named Peter, but later identified Appellant as the perpetrator. However, the physical injuries suffered by A.C. are undisputed and support more than an innocent touching of A.C.‘s vagina. After carefully considering this critical evidence, as well as the remainder of the record, weighing the evidence and all reasonable inferences, considering the credibility of witnesses, and resolving those conflicts in the evidence, we conclude that the jury did not clearly lose its way so as to create a manifest miscarriage of justice that Appellant‘s conviction must be reversed and a new trial ordered.
{¶75} Accordingly, we reject Appellant‘s argument that his rape conviction is not supported by sufficient evidence, or is against the manifest weight of the evidence.
b. Illegal Use of a Minor in Nudity-Oriented Material
{¶76} Appellant was convicted of illegal use of a minor in nudity-oriented material under
{¶77} Appellant argues the State failed to prove that the images found on his PS3 were minors, and therefore his conviction is not supported by sufficient evidence and is against the manifest weight of the evidence. In response, the State argues that the age of the persons in the images found was a question of fact for the jury to determine.
{¶78} Although
{¶79} The jury was apparently able to view the images from Appellant‘s PS3. Further, the evidence shows that some of the images are titled “Teen Panty Pics,” and the websites visited include “Teen Fuck Hardcore,” “Free Hardcore Teen,” “Free Teen Russiаn,” “X Videos Porn at Ultra Young Sex,” etc. We find that there was sufficient evidence to support
{¶80} Furthermore, after weighing the evidence and considering all reasonable inferences, we find that there is substantial evidence upon which the court could reasonably conclude that the persons in the images are minors. Therefore, we also find that Appellant‘s convictions for illegal use of a minor in nudity-oriented material was not against the manifest weight of the evidence.
{¶81} Accordingly, we reject Appellant‘s argument that his conviction for illegal use of a minor in nudity-oriented material is not supported by sufficient evidence, or is against the weight of the evidence.
c. Kidnapping
{¶82} The State charged Appellant with kidnapping under
No person, by force, threat, or deception, or, in the case of a victim under the age of thirteen or mentally incompetent, by any means, shall remove another from the place where the other person is found or restrain the liberty of the other person, for any of the following purposes: * * * (4) To engage in sexual activity, as
defined in section 2907.01 of the Revised Code, with the victim against the victim‘s will * * *.
{¶83} Appellant argues that there is no evidence that A.C.‘s liberty was restrained. In response, the State argues that the apparent bruising, and that the “touching” by Appellant, is evidence that A.C. was restrained during the rape.
{¶84} Initially, we note that we have already held that Appellant‘s rape convictions were not against the manifest weight of the evidence, and “by definition, inherent in every act of rape is a kidnapping offense.” State v. Stewart, 4th Dist. Ross No. 44331, 1982 WL 5952, at *5. Moreover, we agree with the State that the bruising could be considered evidence of restraint that occurred during the rape.
{¶85} Therefore, we find that there is sufficient evidence to support Appellant‘s kidnapping conviction, and in reviewing the entire record, we do not find that the jury lost its way so as to create a manifest injustice justifying a reversal of his kidnapping conviction. Accordingly, we reject Appellant‘s arguments that his kidnapping convictions are not supported by sufficient evidence or are against the weight of the evidence.
d. Endangering Children
{¶87} Appellant argues that there is no evidence he was in loco parentis to A.C., and therefore he could not be charged with endangering children. Appellant argues that as merely Sheri Trout‘s live-in boyfriend, he was not in loco parentis to A.C.
{¶88} In response, the State argues that there is evidence that Sheri Trout had a visitation order and Appellant lived in the same house when A.C. would come to visit. The State argues that A.C. suffered trauma as the result of inaction by Sheri and the action of Appellant.
{¶89}
{¶90} Appellant was not married to Sheri. He was merely her live-in boyfriend, which does not, in and of itself, create an in loco parentis relationship with A.C. And the State points us to no evidence in the record indicating that Appellant was “charged, factitiously with parental rights, duties, and responsibilities” regarding A.C.
{¶91} Accordingly, we find that even viewing the evidence in a light most favorable to the prosecution, no rational trier of fact could have found that Appellant was in loco parentis, and therefore absent evidence of that required element, a jury could not convict Appellant of endangering children. Therefore, we sustain Appellant‘s argumеnt that there was insufficient evidence supporting his conviction for endangering children.
e. Intimidation of a Victim
{¶92} Appellant was convicted of intimidating a witness under
{¶94} In response, the State argues that there is evidence of intimidation in that Appellant had hit A.C. in the past. The State argues that the impact of Appellant‘s abuse, as well as telling A.C. to lie, is evident.
{¶95} In State v. Muniz, 8th Dist. Cuyahoga No. 93528, 2010-Ohio-3720, the Eighth District Court of Appeals found that “where a defendant is charged with intimidation of a ‘victim of crime,’ an essential element of the charge is that the underlying crime occurred and thus created a victim.” Muniz at ¶ 20. As such, the court reasonеd that Muniz was “entitled to notice of the predicate crime in the indictment” because “[t]he charge of intimidation of a crime victim presupposes an earlier crime has been committed.” Id. at ¶ 19-20 (also explaining that these types of cases are “analogous to cases in which a defendant is charged with a crime that has its foundation on unindicted predicate acts“). Finding that “the record [was] unclear as to the nature of the predicate offense[,]” the Muniz court ultimately held that “[t]he
{¶96} Nine years later, the Eighth District Court of Appeals revisited this issue in an en banc decision involving the crime of intimidation of a witness, as opposed to intimidation of a victim. State v. Sanders, 2019-Ohio-2566, -- N.E.3d --. The court reversed course somewhat, holding that “the fact that an underlying criminal or delinquent act occurred is not an essential element of the crime of intimidation of a witness.” Id. at ¶ 5. In reaching its decision, the court reviewed its prior holding in Muniz, noting that in Muniz it was not clear from the record that an underlying criminal act had occurred or the nature of the criminal act. Id. at ¶ 17. The Sanders court qualified its decision with respect to its prior holding in Muniz, stating as follows:
Nothing in this en banc opinion shall be construed to undermine the holding of Muniz, with respect to notice requirements. We maintain that a defendant is entitled to adequate notice of the crimes against which they must defend themself.
A charge of intimidation does not require a conviction on the underlying offense. Had that been the legislature‘s intent, it could easily have used the words “criminal conviction” or “delinquent adjudication” rather than “criminal or delinquent act.” Instead, the state need only prove that the intimidation victim had knowledge about a fact or facts concerning the underlying criminal or delinquent act, and that the defendant knowingly and by force or threat of harm intimidated the victim because of the victim‘s knowledge of facts concerning the matter.
{¶98} In support of its reasoning, the court stated as follows:
While a defendant must be apprised of the nature of the underlying criminal or delinquent act, that act is not a separate element of the offense that must be proven beyond a reasonable doubt. In holding that the occurrence of the underlying act is an essential element
of intimidation, this court imposed an unworkable burden on the state. In making a case for intimidation, a prosecutor is not required to establish beyond a reasonable doubt that the predicate act occurred. Such a requirement, particularly in cases where the underlying offense may have been committed by someone other than the defendant in the intimidation case, would require a trial within a trial that we do not believe was intended or contemplated by the legislature in enacting R.C. 2921.04 .
{¶99} Here, there was no evidence in the record and nothing in the indictment indicating a crime had occurred at the time Appellant allegedly intimidated the victim. More specifically, there is no evidence indicating at times Appellant may have “hit” the child in the “past” or that any criminal act related to the current case had occurred yet. Furthermore, telling A.C. to lie does not constitute intimidation of a victim of a crime.
{¶100} Therefore, even after viewing the evidence in a light most favorable to the prosecution, we find that any rational trier of fact could not have found that there was evidence of a “threat of harm” to influence or intimidate A.C. pertaining to the charges against Appellant. Accordingly,
{¶101} We overrule Appellant‘s fifth assignment of error, except to the extent that we find that his convictions for endangering children and intimidating a victim are not supported by sufficient evidence. Therefore, those two convictions are vacated.
Sixth Assignment of Error
{¶102} In his sixth assignment of error, Appellant asserts the trial court impermissibly permitted hearsay testimony from Detective Crapyou:
Prosecutor: “What happened on the 24th?”
Detective Crapyou: “Before I could get through the entire [police] report [regarding A.C.‘s assault] I had a phone call. It was from a person who identified herself as Michelle, who is Brian Carver‘s wife, or told me at the time she was his wife, and stated the person mentioned in the report is not the person. It was the - - perpetrator was actually [Appellant].”
Defense counsel objected on hearsay grounds, but the trial court overruled his objection. Appellant argues that permitting the hearsay testimony violated his right to confront witnesses.
1. Standard of Review
{¶104} A ” ‘trial court has broad discretion to determine whether a declaratiоn should be admissible as a hearsay exception.’ ” State v. Hiles, 4th Dist. Ross No. 08CA3080, 2009-Ohio-6602, ¶ 6, quoting State v. Dever, 64 Ohio St.3d 401, 410, 1992-Ohio-41, 596 N.E.2d 436 (1992). An “[a]buse of discretion is more than an error of law or judgment; rather, it implies that the court‘s attitude is unreasonable, arbitrary or unconscionable.” Id. at ¶ 7, citing State v. Herring, 94 Ohio St.3d 246, 255, 2002-Ohio-796, 762 N.E.2d 940.
2. Hearsay/Confrontation Clause
{¶105} “Hearsay is defined as ‘a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.’ ” State v. Betts, 4th Dist. Pickaway No. 02CA26, 2004-Ohio-818, ¶ 32, quoting
{¶106} “A law enforcement officer can testify about a declarant‘s out-of-court statement for the nonhearsay purpose of explaining the next investigative step.” State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 186, citing State v. Thomas, 61 Ohio St.2d 223, 232, 400 N.E.2d 401 (1980), State v. McIntosh, 4th Dist. Gallia No. 17CA14, 2018-Ohio-5343, ¶ 29. Testimony offered to explain police conduct is admissible as nonhearsay only if it satisfies three criteria: (1) “the conduct to be explained [is] relevant, equivocal, and contemporaneous with the statements,” (2) the probative value of the statements is not substantially outweighed by the danger of unfair prejudice, and (3) ”the statements cannot connect the accused with the crime charged.” (Emphasis added.) McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 186, State v. Ricks, 136 Ohio St.3d 356, 2013-Ohio-3712, 995 N.E.2d 1181, McIntosh at ¶ 29.
{¶107} Detective Crapyou‘s testimony was that Michelle informed him that the accused‘s name in the police report was incorrect, and it was in fact Appellant who rаped A.C. The statement clearly connected Appellant with the crimes charged against him. Therefore, we find that his testimony
{¶108} With regard to Appellant‘s alleged Confrontation Clause violation, the Sixth Amendment “requires only that the defendant have an opportunity to cross-examine the adverse witness.” State v. Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, 12 N.E.3d 1112, ¶ 181. Because Appellant had the opportunity to cross examine all these witnesses who discussed the identity of the assailant and, in particular, during cross-examination of Michelle, confirmed that A.C. initially identified “Peter” as the assailant but subsequently identified Appellant as the assailant, Appellant‘s Confrontation Clause argument lacks merit.
Seventh Assignment of Error
{¶110} In his seventh assignment of error, Appellant alleges the State of Ohio made improper comments during closing arguments which should have resulted in a mistrial. Appellant cites the following passage from the State‘s rebuttal closing argument:
Did they put any evidence up there saying she was not injured? None. Not touching an erogenous zone, nothing like that. She was injured. Secondly, she said that it was Pappaw - - Pappy Brian or whatever. What evidence has been put in dispute that that was the normal course of events in disclosure of the injury – in disclosure of trauma PTSD? What evidence did they put forward?
{¶111} Defendant objected, which the court sustained, and then it gave the following instruction: “Members of the jury, I‘m - - I‘m just going to give you what‘s sort of called a curative instruction here. The Defendants have no burden to provide any evidence or to prove any evidence, and the burden is entirely on the State of Ohio to prove this case.”
{¶113} In response, the State argues that the verdicts in this case were not against the manifest weight of the evidence. The State further argues that in considering the totality of circumstances and the comments in the context of the trial, Appellant has failed to show beyond a reasonable doubt that, absent the prosecutor‘s conduct, the jury would not have found Appellant guilty.
1. Standard of Review
{¶114} “The grant or denial of a motion for mistrial rests within the sound discretion of the trial court.” State v. Murphy, 4th Dist. Scioto No. 9CA3311, 2010-Ohio-5031, ¶ 83, citing State v. Sage, 31 Ohio St.3d 173, 182, 510 N.E.2d 343 (1987). “An abuse of discretion involves more than an error of judgment; it connotes an attitude on the part of the court that is unreasonable, unconscionable, or arbitrary.” Id. at ¶ 55, citing Franklin Cty. Sheriff‘s Dept. v. State Emp. Relations Bd., 63 Ohio St.3d 498, 506, 589 N.E.2d 24 (1992).
{¶115} “During closing arguments, the prosecution is given wide latitude to convincingly advance its strongest arguments and positions.” Wellston v. Horsley, 4th Dist. Jackson No. 05CA18, 2006-Ohio-4386, 2006 WL 2457392, citing State v. Phillips, 74 Ohio St.3d 72, 90, 656 N.E.2d 643 (1995). A prosecutor may not comment on a defendant‘s failure to testify. Wellston v. Horsley, 4th Dist. Jackson No. 05CA18, 2006-Ohio-4386, ¶ 24, citing Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), State v. Fears, 86 Ohio St.3d 329, 336, 715 N.E.2d 136 (1999). But “it is long-standing precedent that the state may comment upon a defendant‘s failure to offer evidence in support of its case.” State v. Collins, 89 Ohio St.3d 524, 527, 2000-Ohio-231, 733 N.E.2d 1118, citing State v. D‘Ambrosio, 67 Ohio St.3d 185, 193, 616 N.E.2d 909 (1993), State v. Williams, 23 Ohio St.3d 16, 20, 490 N.E.2d 906 (1986), State v. Petro, 148 Ohio St. 473, 498, 76 N.E.2d 355 (1948), State v. Champion, 109 Ohio St. 281, 289-290, 142 N.E. 141 (1924). “Such comments do not imply that the burden of proof has shifted to the dеfense, nor do they necessarily constitute a penalty on the defendant‘s exercise of his Fifth Amendment right to remain silent. Id., citing State v. Thompson, 33 Ohio St.3d 1, 4, 514 N.E.2d 407 (1987).
{¶117} Despite appellant‘s challenge to the prosecutor‘s comments, he nevertheless acknowledged they were “somewhat ambiguous in nature.” The prosecutor‘s comments do not expressly raise appellant‘s failure to testify, but instead address his failure to present evidence to challenge the State‘s evidence, which may not come under the purview of Collins, because Collins permits the State to discuss the “defendant‘s failure to offer evidence in support of its case.” Collins at 527. (Emphasis added).
{¶118} The prosecutor‘s comment that Appellant‘s failure to present evidence to challenge‘s the State‘s case could have been interpreted by the jury to mean that Appellant had a burden to rebut the State‘s evidence. However, to the extent that the prosecutor‘s comments were interpreted in
{¶119} Accordingly, we find that even if the prosecutor‘s comments were improper, in light of the court‘s instructions, it is beyond doubt that even absent the prosecutor‘s comments, the jury would have still found Appellant guilty. The trial court did not abuse its discretion in denying Appellant‘s motion for a mistrial. Therefore, we overrule Appellant‘s seventh assignment of error.
{¶120} In his eighth assignment of error, Appellant alleges that cumulative errors justify reversal of his convictions.
{¶121} “Under 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. Hammond, 2019-Ohio-4253, ¶ 10, quoting State v. Garner, 74 Ohio St.3d 49, 64, 656 N.E.2d 623 (1995). However, “[e]rrors cannot become prejudicial by sheer weight of numbers.” State v. Hill, 75 Ohio St.3d 195, 212, 661 N.E.2d 1068 (1996).
{¶122} We found that there was insufficient evidence to support Appellant‘s convictions for endangering children and intimidating a victim, and ordered these convictions vacated. However, vacating those convictions in no way diminishes or undermines the evidence supporting Appellant‘s other convictions, and the mere existence of two errors does not “become prejudicial by sheer numbers.” Accordingly, we overrule Appellant‘s eighth assignment of error.
{¶123} We overrule all of Appellant‘s assignments of error, except that we find that his convictions for endangering children and intimidation of a victim were not supported by sufficient evidence. Therefore, we affirm the trial court‘s judgment entry of conviction with the exception of Appellant‘s convictions for endangering children and intimidation of a victim, which we vacate.
JUDGMENT AFFIRMED IN PART AND VACATED IN PART.
It is ordered that the JUDGMENT BE AFFIRMED IN PART AND VACATED IN PART. Costs shall be divided equally between the parties.
The Court finds there were reasonable grounds for this apрeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Abele, J. and Hess, J. concur in Judgment and Opinion.
For the Court,
______________________________
Jason P. Smith
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.