STATE OF OHIO, PLAINTIFF-APPELLEE, v. WILLIAM H. PURDY, DEFENDANT-APPELLANT.
CASE NO. 1-12-56
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
September 23, 2013
2013-Ohio-4105
Appeal from Allen County Common Pleas Court, Trial Court No. CR2012 0249. Judgment Affirmed and Sentence Vacated in Part.
Michael J. Short for Appellant
Terri L. Kohlrieser for Appellee
{¶1} Defendant-appellant, William H. Purdy, appeals the Allen County Court of Common Pleas’ judgment entry of conviction. For the reasons that follow, we affirm the judgment of conviction; however, we remand for resentencing pursuant to
{¶2} On July 12, 2012, the Allen County Grand Jury indicted Purdy on Counts One through Six of rape, violations of
{¶3} On July 23, 2012, Purdy enterеd pleas of not guilty at arraignment. (See Doc. No. 3).
{¶4} On October 12, 2012, Purdy filed a written waiver of his right to a jury trial. (Doc. No. 38).
{¶5} On October 22, 2012, the matter proceeded to a bench trial. (Doc. No. 45). Prior to the presentation of its case-in-chief, the State moved to dismiss Counts Seven and Eight of the indictment, which was granted. (Id.). Thereafter,
{¶6} On November 2, 2012, the trial court filed its judgment entry of conviction. (Doc. No. 48).
{¶7} On November 14, 2012, the trial court sentenced Purdy to mandatory life imprisonment with parole eligibility after ten years on each of Counts One through Six. (Doc. No. 51); (Nov. 14, 2012 Tr. at 11-13). The trial court ordered that the terms imposed in Counts One and Two run concurrently to each other; the terms imposed in Counts Three and Four run concurrently to each other; and, the terms imposed in Counts Five and Six run concurrently to each other. (Id.); (Id.). However, the trial court further ordered that the term imposed on Counts One and Two run consecutive to the term imposed on Counts Three and Four; and, the terms imposed in Counts Five and Six run consecutive to the terms imposed in Counts One, Two, Three, and Four for an aggregate sentence of three terms of life imprisonment with parole eligibility after 30 years. (Id.); (Id.).
{¶8} On November 19, 2012, the trial court filed its judgment entry of sentence. (Doc. No. 51).
{¶9} On December 4, 2012, Purdy filed a notice of appeal. (Doc. No. 55). Purdy raises two assignments of error, which we elect to address together.
The conviction was against the manifest weight of the evidence.
Assignment of Error No. II
There was insufficient evidence to sustain the conviction.
{¶10} In his first assignment of error, Purdy argues that his conviction is against the manifest weight of the evidence because the witnesses against him were not credible. In particular, Purdy argues that the victim made the allegations against him after she admitted to making up similar allegations against her stepfather as a way to garner sympathy and get out of trouble for violating curfew. Purdy argues that the testimony of his codefendant, Trisha Steele, is also not credible because she did not disclose Purdy‘s involvement until she was being investigated herself for sexual conduct with the victim, and Steele was given a significantly reduced sentence for her cooperation.
{¶11} In his sеcond assignment of error, Purdy argues that, absent the non-credible testimony of the victim and his codefendant, his convictions were not supported by sufficient evidence.2
{¶12} In determining whether a conviction is against the manifest weight of the evidence, a reviewing court must examine the entire record, “‘[weigh] the evidence and all reasonable inferences, consider the credibility of witnesses and
{¶13} “An appellate court‘s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus, superseded by state constitutional amendment on other grounds in State v. Smith, 80 Ohio St.3d 89 (1997). Accordingly, “[t][he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” Id.
{¶14} The State presented the testimony of five witnessеs at trial. Renee Owen testified that the victim, A.P., was her biological daughter, and Purdy, a.k.a. “Billy,” was A.P.‘s biological father. (Oct. 22, 2012 Tr. at 19-21). Owen testified that A.P. was born in August 1998, and A.P. was fourteen years old. (Id. at 20).
{¶15} On cross-examination, Owen testified that A.P. does get into trouble, including violating curfew and riding in a car with another fourteen-year-old. (Id. at 27). Owen testified that she grounded A.P. for two weeks for sneaking out of the house. (Id. at 30). Owen testified that the allegations against Purdy were initiated after A.P. told someone at school that Owen‘s current husband, A.P.‘s stepfather, touched A.P. (Id. at 28-29). Owen testified that she initially believed A.P. even though she did not want to believe her, but now Owen does not believe
{¶16} On re-direct examination, Owen testified that she remembered that A.P. visited Purdy when he lived on Vine Street more than once overnight. (Id. at 37). She also testified that A.P. spent every other weekend and some weeknights with Purdy when he lived on Roberts for a few-month period. (Id. at 38).
{¶18} A.P. testified that she became sexually involved with Purdy when he was living on Vine. (Id. at 47). A.P. testified that Purdy taught her how to finger herself by using his hands or her hands. (Id. at 48). A.P. testified that Purdy would put his fingers into her vagina, and he would take her fingers and place them into her vagina. (Id. at 48-49). A.P. could not recall how many times this occurred, but she recalled that it occurred more than twice, and they were in the upstairs bedroom on Vine. (Id. at 49). A.P. testified that Purdy continued to do sexual things with her when he moved to Roberts. (Id. at 50-51). A.P. testified that Purdy would lick her vagina, which occurred more than once. (Id. at 51).
{¶19} A.P. аlso testified that Purdy called his girlfriend, Trish, into the room and told Trish to “go down on [her],” so Trish licked her vagina. (Id. at 53-54). A.P. testified that she could not recall how many times Trish licked her vagina but it was more than once. (Id. at 54-55). A.P. could not recall what Purdy was doing when Trish was performing oral sex on her, but A.P. testified that Purdy was present. (Id. at 55). She also testified that, at some point, Trish stopped participating in these sexual incidents, and A.P. recalled that Trish and Purdy discussed it. (Id.). A.P. testified that she heard Trish tell Purdy that what they were doing was wrong, and it should not be going on. (Id. at 56). A.P. testified that, after Trish told Purdy it was wrong, Trish stopped performing oral sex on her, but Purdy continued to lick her vagina. (Id. at 56-57).
{¶20} A.P. testified that she recalled a time when her mother would no longer allow her to visit Purdy, and she had only reconnected with Purdy in the last few years through Facebook. (Id. at 57). A.P. testified that her mother allowed Purdy to come visit her at their house, but her mother would not allow her to visit Purdy. (Id. at 58). A.P. testified that she did go visit Purdy once or twice
{¶21} A.P. testified that, earlier in the year, she reported to children services and Investigator Tiffany Najmulski of the Lima Police Department that her stepfather came into her room and tried to touch her. (Id. at 60). A.P. testified that the previous weekend she had been arrested for violating curfew and was in big trouble, and shortly after that incident, she first told a school nurse about her stepfather, Thomas Owen, touching her. (Id. at 60-61). A.P. testified that, after she made the allegation to the school nurse, children services began investigating, and she told the investigator that her stepfather came into her room, asked her if she wanted her radio back, gave her a pill, came back a few minutes later, and tried to remove the blanket and touch her. (Id. at 62). A.P. testified that her stepfather did come in the room, return her radio, and give her a sleeping pill, but he never tried to touch her. (Id. at 62-63). A.P. testified that she made up the allegations against her stepfather to garner sympathy and escape punishment for her curfew violation. (Id. at 63).
{¶22} A.P. testified that she also made allegations against Purdy after the investigator asked her if anyone else had ever touched her. (Id. at 63-64). A.P. testified that, a few days later, she told the investigator that she made up the story about her stepfather touching her, but that her biological father did actually touch
{¶23} On cross-examination, A.P. testified that in April (2012), she reported to a school official that her stepfather removed a blanket while she was sleeping and tried to touch her upper thigh. (Id. at 69). A.P. testified that she provided details about the alleged incident with her stepfather, including that he sat on a beanbag chair by her bed, the description of the sleeping pill he gave her, and what clothes she was wearing at the time. (Id. at 69-70). A.P. also testified that she told investigators that her stepfather tried to pull off the covers, and she pretended to be partially asleep and pull them back over herself, and he placed his hand on her right thigh towards her butt. (Id. at 71). A.P. testified that she admitted that she made the story up after she violated curfew and was arrested. (Id. at 72). A.P. testified that, after violating curfew, her mother initially grounded her for the entire summer. (Id. at 73). A.P. admitted that she told investigators that she believed that her stepfather had touched her before, and showed investigators a bruise on her inner thigh where she alleged her stepfather must
{¶24} A.P. also testified that she originally told law enforcement that Purdy made her touch his penis, until just recently when she stated that that did not happen. (Id. at 78-79). A.P. testified that her very first visit with Purdy on Vine Street occurred close to spring time, because it was warm and she recalled seeing flowers on the trees. (Id. at 79-80). A.P. testified that she learned about dildos and sex toys, as well as the saying “going down on you,” from childrеn at school, but the first time she saw sex toys was in Purdy‘s room. (Id. at 81-82). When questioned about how she knew her father had a sex toy, A.P. testified that it looked like a penis, and when asked how may penises she had seen before at the age of five, A.P. testified just Purdy‘s penis. (Id. at 82-83). A.P. testified that she was currently grounded for violating curfew again after she was caught riding in a vehicle with another fourteen-year-old. (Id. at 88). A.P. testified that she could not remember what Purdy said to Trish when Trish told him that what they were doing was wrong. (Id. at 90). A.P. testified that she could not remember
{¶25} On re-direct, A.P. testified that some of the things she alleged about her stepfather were true, like the fact that he came into her bedroom, asked her about the radio, and gave her a sleeping pill. (Id. at 94). A.P. testified that Trish put her mouth on A.P.‘s vagina more than once; Purdy placed his mouth on her vagina more than once; and Purdy placed his fingers into her vagina more than once. (Id. at 95-96). A.P. testified that she is not lying about Trish or Purdy, and Trish never asked her to lie about Purdy. (Id. at 96-97). On re-cross, A.P. admitted that she lied before about her stepfather to avoid getting into trouble for a curfew violation, and she violated curfew again. (Id. at 98-99).
{¶26} Trisha Steele, who A.P. called “Trish,” testified that she was indicted on multiple counts of rape with specifications that the victim was under the age of ten. (Id. at 101-102). Steele testified that she agreed to plead guilty to one count of rape in exchange for her truthful testimony in the trial against Purdy. (Id. at 102-103). Steele testifiеd that she has not yet been sentenced, and she faces a possible of three to ten years with no guaranteed sentence as part of the plea deal. (Id. at 104). Steele testified that she dated and lived with Purdy—first they lived on Vine Street, along with her son, Raven, Purdy‘s sister, her boyfriend, and Purdy‘s father. (Id. at 105-106). Steele testified that she later lived with Purdy on
{¶27} Steele testified that she first noticed something odd when Purdy was tucking A.P. into bed and she walked in and noticed Purdy jump back from the bed very fast and A.P. was laying there not knowing what to say or do. (Id. at 109). Steele testified that eventually there was a time when A.P. was laying on the bed with her legs spread apart, and Purdy “went down on her, [a]nd then he had me go down on her.” (Id. at 111). When asked to testify what “go down on her” meant, Steele testified “[h]is tongue touched her clit,” and Purdy was licking A.P.‘s clit. (Id.). Steele testified that Purdy “told me to go -- to lick her clit with my tongue,” so she did. (Id.). Steele testified that when she did that, A.P. “grabbed me by my ears and pulled me down closer to her.” (Id. at 112). Steele testified that Purdy was sitting right beside her at that time. (Id.). Steele testified that Purdy had her lick A.P.‘s vagina another time, except this time Purdy, who was undressed from the waist down, had A.P., who was also undressed from the waist down, grind on his private area. (Id. at 113-114). Stеele further testified that Purdy had her demonstrate to A.P. how to give a blowjob, so A.P. would
{¶28} Steele testified that she never told anyone what Purdy was doing to A.P. because she was afraid that she would get into trouble, too. (Id. at 117). Steele testified that she did not leave Purdy after the incidents occurred, but she did eventually leave Purdy after he was arrested on a different matter. (Id. at 118). Steele testified that she saw A.P. a couple years ago at Square Fair, and they talked about how she was doing in school, but they never discussed the previous sexual incidents. (Id. at 119). Steele testified that she spoke with investigator Najmulski about the sexual incidents, though she did not immediately tell Najmulski the truth. (Id. at 119-120). According to Steele, Najmulski came to her house and asked her to come down to the police station to discuss the sexual abuse case involving A.P., so she agreed to go with Najmulski. (Id. at 121). Steele testified
{¶29} On cross-examination, Steele testified that, when she agreed to go to the police station, she knew that law enforcement was investigating both Purdy and her, but Steele was unaware of A.P.‘s allegations against her stepfather. (Id. at 126). Steele admitted that she told law enforcement about Purdy‘s involvement, in part, to get a lighter sentence, but Steele denied that she was seeking any revenge toward Purdy. (Id. at 128). Steele testified that she wanted the truth to come out before the investigation, but she was scared since she also participated. (Id. at 129). Steele identified defendant‘s exhibit A as a copy of her plea agreement, and she testified that she was originally facing life sentences, but it was reduced to a possible maximum of ten years. (Id. at 129-131). Steele was unaware that A.P. never testified that she placed her mouth on Purdy‘s penis, but Steele attributed that to the fact that A.P. was young and afraid. (Id. at 132-134). Steele testified that, when she told Purdy that she was not engaging in the sexual conduct with A.P., the two had a twenty-minute argument yelling back and forth. (Id. at 135-136). Steele testified that A.P. spent several nights with them in the house on Vine Street prior to Christmas of 2003. (Id. at 138-139). She testified
{¶30} Wendy Daugherty testified that she was Purdy‘s supervising officer employed with the Ohio Adult Parole Authority (“APA“), and Purdy was under supervision beginning on July 3, 2003, though she was not assigned Purdy until August 2004. (Id. at 146-147). Daugherty testified that, when Purdy came under her supervision, Purdy was living at 119 East Vine Street, Lima, Allen County, Ohio. (Id. at 149). Daugherty testified that, prior to coming under APA‘s supеrvision, Purdy would not have been able to regularly visit A.P. without supervision. (Id.). Daugherty testified that Purdy informed her that he moved to 512 South Roberts Street, Lima, Allen County, Ohio on January 28, 2005. (Id. at 150). Daugherty testified that Purdy left this residence on October 19, 2005 after she had received an allegation concerning Purdy and A.P. on an unrelated incident. (Id. at 151, 154). Daugherty testified that Purdy was given an
{¶31} Tiffany Najmulski testified that she is currently working for The Bureau of Criminal Investigation, but she was previously assigned to juvenile investigations for the Lima Police Department. (Id. at 166-167). Najmulski testified that, during her investigation into A.P.‘s report concerning her stepfather, she or children‘s services asked A.P. whether anyone else had touched her inappropriately, and A.P. indicated Trisha and Purdy. (Id. at 172-173). Najmulski testified that A.P. did recant the story about her stepfather abusing her, which is why Najmulski investigated the allegations about Purdy and Trisha further. (Id. аt 175-176). After Najmulski was able to locate Trisha through children‘s services,
{¶32} On cross-examination, Najmulski testified that no physical evidence was discovered to substantiate A.P. or Trisha‘s claims. (Id. at 186-187). With regard to the timeframe of the sexual abuse, Najmulski testified that A.P. believed
{¶33} Thereafter, the State rested, and the defense made a
{¶34} Purdy was convicted of six counts of rape in violation of
{¶36} Purdy argues that his convictions are against the manifest weight of the evidence because the victim and his co-defendant were not credible. We must disagree. To begin, credibility and weight of the evidence is primarily the role of the trier-of-fact—in this case, the trial court. State v. Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, ¶ 106, citing DeHass at paragraph one of the syllabus. After weighing the evidence and evaluating the crеdibility of these witnesses, with appropriate deference to the trial court‘s credibility determination, we cannot conclude that the trial court, as the trier of fact, clearly lost its way and created a manifest injustice here.
{¶37} Although A.P. admittedly made false allegations that her stepfather sexually abused her, A.P. confessed to making these false allegations a few days
{¶38} With respect to Trisha‘s credibility, Trisha testified that she did not come forward prior to A.P. making the allegations against her and Purdy, because she was afraid of the consequences from Purdy, who was previously physically abusive, and the criminal consequences for her involvement. The trial court
{¶39} Trisha‘s testimony confirmed certain critical details of A.P.‘s testimony—critical details that investigators kept from the two witnesses during the interview process. Trisha confirmed that the sexual abuse occurred in Purdy‘s bedroom. Trisha confirmed that A.P. placed her hand on Trisha‘s head (near her ears) while Trisha was performing oral sex on A.P. Trisha also confirmed that she had a heated, verbal confrontation with Purdy concerning her continued participation in the sexual abuse, which was consistent with A.P.‘s testimony that she overhead Trisha tell Purdy she did not want to continue the sexual abuse. A search of Purdy‘s home also revealed multiple sex toys in the home, which was consistent with A.P.‘s testimony that she saw these items in Purdy‘s bedroom.
{¶41} Based upon the foregoing, we are not persuaded that the trial court, by convicting Purdy of rape, clearly lost its way creating a manifest injustice.
{¶42} In a total of one paragraph, Purdy argues that his conviction was not supported by sufficient evidence because A.P. and Trisha were not credible witnesses. However, in concluding that Purdy‘s conviction was not against the manifest weight of the evidence above, we concluded that the record supports the trial court‘s determination that A.P and Trisha were credible witnesses. Their testimony provides evidence of all the elements of the offenses. Therefore, we must reject Purdy‘s sufficiency argument.
{¶43} Purdy‘s first and second assignments of error are, therefore, overruled.
{¶44} Although Purdy‘s assignments of error lack merit, we must remand this matter for an
[t]he Court would further note that these are felonies of the first degree but there is a life imprisonment so this would not – P.R.C.
eligibility after he was released but he – it‘s still under parole so that we do not advise the defendant of his eligibility under post release control. (Nov. 14, 2012 Tr. at 14).
Since Purdy was convicted of a felony sex offense,
{¶45} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of conviction. Nevertheless, since the trial court failed to properly impose the mandatory, five-year term of PRC under
SHAW, J., concurs.
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ROGERS, J. concurring separately.
{¶46} I concur with the result reached by the majority in this case. However, I write separately because I disagree with the order in which the majority addresses the issues of manifest weight and sufficienсy of the evidence. I also believe the majority has improperly applied a test of credibility to the issue of sufficiency of the evidence.
{¶47} It is my opinion that, when an appellant raises both the issue of sufficiency of the evidence and manifest weight of the evidence, a reviewing court should analyze assignments of error in that respective order. Initially, I emphasize that, logically, a reviewing court will never reach the issues of weight of the evidence or credibility of witnesses without first finding that evidence was presented on each element of the offense which, if believed, would support a conviction. Further, I believe this is the logical order of analysis for the following reasons.
{¶48} First, this sequence of analysis follows the оrder of the stages in a criminal trial. At the close of the State‘s presentation of evidence in a jury trial,
{¶49} Next, the Supreme Court of Ohio has repeatedly distinguished sufficiency and manifest weight arguments, holding that “[a] claim that a jury verdict is against the manifest weight of the evidence involves a separate and distinct test that is much broader [than the test for sufficiency].” State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, ¶ 193. Logically, judicial economy requires that this Court first conduct the narrower analysis, as this may dispose of the entire case, rather than undertaking the broader analysis first.
{¶51} Finally, under the Ohio Constitution, a reviewing court‘s decision to reverse a conviction as being against the manifest weight of the evidence must be unanimous by the three judges hearing the cause.
{¶52} “An appellate court‘s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus, superseded on other grounds as stated in State v. Smith, 80 Ohio St.3d 89 (1997). Notably, this standard does not require a test of credibility to be applied by the court, but only requires that the court determine that some evidence was presented as to each element of the offense. This is the only test the State must satisfy as to sufficiency. The language “if believed” does not require the court to believe the evidence presented.
{¶53} The test of credibility is applied by the trier-of-fact when deciding which testimony to believe and/or not believe. This is the test for the manifest weight of the evidence. Based on the differenсes between sufficiency and manifest weight analyses, the Supreme Court has handed down the following comparison of the two standards:
The legal concepts of sufficiency of the evidence and weight of the evidence are both quantitatively and qualitatively different.
With respect to sufficiency of the evidence, ” ‘sufficiency’ is a term of art meaning that legal standard which is applied to determine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law.” Black‘s Law Dictionary 1433 (6th Ed.1990). See also
Crim.R. 29(A) (motion for judgment of acquittal can be granted by the trial court if the evidence is insufficient to sustain a conviction). In essence, sufficiency is a test of adequaсy. Whether the evidence is legally sufficient to sustain a verdict is a question of law. State v. Robinson, 162 Ohio St. 486 (1955). In addition, a conviction based on legally insufficient evidence constitutes a denial of due process. Tibbs, 457 U.S. at 45, 102 S.Ct. 2211, citing Jackson v. Virginia, 443 U.S. 307 (1979).
Although a court of appeals may determine that a judgment of a trial court is sustained by sufficient evidence, that court may nevertheless conclude that the judgment is against the weight of the evidence. Robinson at 487. Weight of the evidence concerns “the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief.” (Emphasis added.) Black‘s, supra, at 1594.
Thompkins, 78 Ohio St.3d 380, 386-387.
{¶54} It seems clear to me then, that the issue of credibility only arises when considering manifest weight, and plays no role in a determination of sufficiency. Yet the majority has turned this process on its head by stating that because the testimony has been determined to be credible, it then follows that the evidence was sufficient. Ante at ¶ 42.
{¶55} Consequently, I disagree with the analysis by which the majority reached its conclusion, and the standard applied, however, I nevertheless concur with the result.
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