2004 Ohio 6443 | Ohio Ct. App. | 2004
{¶ 2} On November 4, 2002, defendant was charged with three counts of rape in violation of R.C.
{¶ 3} Defendant's first trial commenced in August 2003 and ended in a mistrial. Defendant was retried in November 2003. The evidence adduced at the second trial is as follows. The victim, N.J.M., born January 14, 1989, lived in a three-bedroom apartment with her mother, Lisa, Lisa's boyfriend (defendant) and her sisters, Amy, Destiny and Leslie. Lisa is the natural mother of all four children; however, defendant fathered only Leslie. Lisa worked from 9:00 a.m. to 9:30 p.m. at a retail clothing establishment. While Lisa worked, defendant stayed home and cared for the children. Defendant kept several pornographic videotapes in the apartment and sometimes watched them with Lisa. Defendant and Lisa shared a bedroom with Leslie; Amy and Destiny shared a bedroom directly across the hallway; and N.J.M. had her own bedroom.
{¶ 4} N.J.M. testified that as she slept in her bedroom just before Christmas 1999, she "woke up to [defendant's] tongue on [her] vagina." (Tr. 16.) She opened and closed her eyes, but said nothing to defendant. When defendant was "done" he left the room. Id. Sometime after the incident, defendant told N.J.M. that if she informed anyone about what had happened, he would "put [her] six feet underground." Id. According to N.J.M., defendant performed the same act on her at least every other night until about a month before he moved out of the apartment in July 2001. She further testified that about half of the time, defendant would watch pornographic videos while he abused her. During the final episode of abuse, she did not close her eyes and pretend to be asleep as she had previously done; rather, she told defendant to get off of her. Defendant told her to "shut up and turn [her] head." (Tr. 19.) N.J.M. complied with defendant's order.
{¶ 5} N.J.M. also testified that once when defendant was alone in the apartment with her and three of her teenaged cousins, defendant played a pornographic videotape in their presence. All three of the teenagers corroborated N.J.M.'s testimony and described the videotape as depicting naked adults "having sex." (Tr. 53, 58, 69.)
{¶ 6} About a week after defendant moved out of the apartment, N.J.M. reported the abuse to Lisa's sister, Kimberly, because she did not want Lisa to resume her relationship with defendant. Kimberly relayed the information to Lisa, who then called the police and took N.J.M. to Children's Hospital for an examination.
{¶ 7} Gail Hornor, a pediatric nurse practitioner at Children's Hospital, conducted a sexual abuse assessment of N.J.M. on July 18, 2001, based upon the history of oral/genital contact provided by Lisa. Ms. Hornor did not interview N.J.M.; however, she conducted a complete physical examination of N.J.M., including a genital examination. Ms. Hornor testified the genital examination was normal; however, she further averred that a normal genital examination would not necessarily negate the history of sexual abuse N.J.M. disclosed to Lisa.
{¶ 8} In December 2001, Franklin County Children Services removed all four children from Lisa's care due to her ongoing alcohol and substance abuse problems. N.J.M. eventually went to live with Lisa's mother, Nona; Nona's sister was awarded temporary custody of Leslie.
{¶ 9} Columbus Police Detective, Melinda Hunt, interviewed N.J.M. on August 8, 2001. Based upon that interview, Detective Hunt sought interviews with several other persons, including defendant; however, defendant's whereabouts were unknown for several months after the allegations surfaced. Defendant returned to Columbus in May 2002 and Detective Hunt interviewed him on June 4, 2002. Defendant denied all the allegations and averred that he was unaware of the pending investigation until he returned to Columbus in May 2002.
{¶ 10} According to Detective Hunt, defendant offered the names of three witnesses, including his girlfriend, Rhonda, who allegedly had personal knowledge that Lisa and Nona coached N.J.M. concerning what to say during her interview with the police. Defendant also asserted that Rhonda possessed a tape recording of the alleged coaching incident. Detective Hunt testified that she interviewed Rhonda, who confirmed she overheard Nona and Lisa coaching N.J.M.; however, the tape recording was never produced for the police. The other two witnesses were never located. Defendant again denied the allegations during a second interview after his arrest in July 2002.
{¶ 11} Defendant's girlfriend, Rhonda, Nona's former daughter-in-law, testified on behalf of defendant. According to Rhonda, in July 2001, she overheard several conversations between Lisa, Nona, and N.J.M. involving the allegations of sexual abuse N.J.M. was planning to levy against defendant. According to Rhonda, Nona initially instructed N.J.M. to allege that defendant had vaginal intercourse with her. However, after realizing that such allegations might easily be refuted by a lack of physical evidence, Nona instructed N.J.M. to allege that defendant performed cunnilingus on her. Rhonda admitted that she did not report the alleged conspiracy to the police.
{¶ 12} Rhonda further testified that she began a live-in relationship with defendant in May 2002 and they had a child together in the summer of 2003. According to Rhonda, N.J.M. visited her home several times after defendant moved in and N.J.M. never seemed afraid of defendant. Rhonda also testified that Nona made several harassing telephone calls to her home in May and June 2002. She further testified that she tape recorded several telephone conversations during which Nona allegedly admitted that she instructed N.J.M. as to the allegations of sexual abuse asserted against defendant. Rhonda maintained that she showed the tapes of the telephone calls to Detective Hunt when defendant was interviewed, but would not permit her to listen to them. At trial, Rhonda averred that the tapes had been misplaced.
{¶ 13} Misty, a friend of Nona and Lisa's, testified that she lived with Lisa and defendant for approximately one and one-half months. In March 2003, Nona asked Misty if defendant had ever "messed with [her]." (Tr. 217.) Despite Misty's denial, Nona asked her if she would be willing to go to court and testify that he had sexually abused her. Misty told Nona she would not so testify.
{¶ 14} At the close of the state's case, the trial court dismissed Count 8 of the indictment. Following deliberations, the jury acquitted defendant on Counts 3 and 6 of the indictment. The jury found defendant guilty on Counts 1, 2, 4, 5 and 7 of the indictment. On the two rape counts, the jury further found that the victim was under the age of 13 and that defendant purposely compelled the victim to submit by force or threat of force.
{¶ 15} By judgment entry filed January 22, 2004, the trial court sentenced defendant to life imprisonment with parole eligibility after ten years on Counts 1 and 2 of the indictment, one year incarceration on Counts 5 and 6 of the indictment, and six months incarceration on Count 7 of the indictment. The court ordered all five sentences to be served concurrently. By separate entry, the trial court adjudicated defendant a sexually oriented offender.
{¶ 16} Defendant timely appeals the trial court's judgment and asserts 12 assignments of error, as follows:
I. The jury verdict in count one is not supported by the quantity of evidence required by law.
II. The jury verdict in count two is not supported by the quantity of evidence required by law.
III. The jury verdict in count four is not supported by the quantity of evidence required by law.
IV. The jury verdict in count five is not supported by the quantity of evidence required by law.
V. The jury verdict in count one is against the manifest weight of the evidence.
VI. The jury verdict in count two is against the manifest weight of the evidence.
VII. The jury verdict in count four is against the manifest weight of the evidence.
VIII. The jury verdict in count five is against the manifest weight of the evidence.
IX. The jury verdict in count seven is not supported by the quantity of evidence required by law.
X. The defendant was predjudiced [sic] by the ineffective assistance of counsel in failing to properly voir dire a juror that should have been removed for cause.
XI. The defendant was predjudiced [sic] by the ineffective assistance of counsel in not putting a witness on the standa [sic] and subjecting him to direct examination.
XII. The defendant was predjudiced [sic] by the ineffective assistance of counsel in that counsel refused to introduce evidence of motive of the victim when clearly such evidence was available to him.
{¶ 17} Before addressing defendant's assignments of error, we note that defendant has failed to include in his brief a statement of the case as required by App.R. 16(A)(5). Counsel is hereby reminded of the duty to fully comply with the rules of appellate procedure in future filings.
{¶ 18} Defendant's first, second, third, fourth and ninth assignments of error challenge his convictions as not supported by sufficient evidence. "Whether the evidence is legally sufficient to sustain a verdict is a question of law." State v.Thompkins (1997),
{¶ 19} We first consider defendant's sufficiency of the evidence arguments as they pertain to his rape convictions. R.C.
{¶ 20} Sufficient evidence was elicited on each element of the rape counts to sustain defendant's convictions. Initially, we reject defendant's contention that there was insufficient evidence to prove that the rapes occurred during the time periods specified in the indictment. The precise date and time a rape occurs is not an essential element of the crime. See R.C.
{¶ 21} The victim in this case was 10, 11 and 12 years old at the time the rapes were committed against her. As such, it was not unreasonable for the jury to believe that she was unable to remember exact dates and times, especially considering that the same conduct occurred over an 18-month period of time. Moreover, N.J.M.'s testimony sufficiently narrowed the time frames to those specified in the indictment. Count 1 of the indictment alleged the sexual conduct occurred between December 1, 1999 and December 31, 1999. N.J.M. testified that the first incident of abuse occurred just before Christmas 1999, which obviously falls within the time specified in the indictment. Count 2 of the indictment alleged the sexual conduct occurred between June 1, 2000 and September 1, 2000. N.J.M. testified that defendant committed the same act upon her at least every other night from the date of the first incident until he moved out in July 2001. This testimony clearly encompasses the time frame set forth in Count 2 of the indictment.
{¶ 22} In addition, defendant has failed to demonstrate how the lack of more specific dates prejudiced his defense. Defendant did not assert an alibi claiming he was elsewhere during part of the time frame specified in the indictment. Rather, the evidence established a prolonged period of sexual abuse of N.J.M. Under these circumstances, the state's failure to supply specific dates did not prejudice defendant's ability to prepare his defense.
{¶ 23} We further reject defendant's contention that the prosecution failed to prove beyond a reasonable doubt that defendant purposely compelled N.J.M to submit by force or threat of force. The plain language of R.C.
{¶ 24} R.C.
{¶ 25} The court emphasized several factors in finding force absent explicit threats or displays of force. The court noted that the victim's father removed the victim's panties and laid her on the bed. Further, the court noted the considerable age and size differences in the victim and her father. The court stated, "[f]orce need not be overt and physically brutal, but can be subtle and psychological. As long as it can be shown that the rape victim's will was overcome by fear or duress, the forcible element of rape can be established." Id. at 58-59, quoting Statev. Fowler (1985),
{¶ 26} In State v. Schaim (1992),
State v. Eskridge is based solely on the recognition of the amount of control that parents have over their children, particularly young children. Every detail of a child's life is controlled by a parent, and a four-year old child knows that disobedience will be punished, whether by corporal punishment or an alternative form of discipline. Because of the child's dependence on his or her parents, a child of tender years has no real power to resist his or her parent's command, and every command contains an implicit threat of punishment for failure to obey. Under these circumstances, a minimal degree of force will satisfy the elements forcible rape.
Id. at 55.
{¶ 27} In State v. Dye (1998),
{¶ 28} Applying Eskridge and Dye to the instant case, this court concludes, viewing the evidence in a light most favorable to the prosecution, that there was sufficient evidence of force to support the jury's finding. Defendant held a position of authority over N.J.M. by virtue of his live-in relationship with her mother, which eventually culminated in the birth of N.J.M.'s half-sister. In addition, defendant was N.J.M.'s sole caretaker while N.J.M.'s mother worked 12-plus hour shifts outside the home. From this evidence, the jury could reasonably infer that defendant, in Lisa's absence, was N.J.M.'s disciplinarian and had the authority to punish her if she disobeyed him. Indeed, when defendant told N.J.M. to "shut up and turn [her] head" when she requested that he stop abusing her, she dutifully obeyed his order. Finally, defendant threatened to kill N.J.M. if she told anyone about the abuse. Given defendant's position of authority, the evidence supported a finding that N.J.M. was compelled by force or threat of force to submit to defendant.
{¶ 29} We also reject defendant's contention that the evidence at trial was necessarily insufficient because there was no physical or eyewitness evidence to corroborate N.J.M.'s version of the events. There is no requirement, statutory or otherwise, that a rape victim's testimony must be corroborated as a condition precedent to conviction. State v. Sklenar (1991),
{¶ 30} Viewing the evidence presented by the state in a light most favorable to the prosecution, a rational trier of fact could have found all of the elements of rape of a child under 13 proven beyond a reasonable doubt, as well as the sentence-enhancing specification that defendant purposely compelled N.J.M. to submit by force or threat of force.
{¶ 31} We next consider defendant's sufficiency of the evidence arguments related to his convictions for sexual battery. R.C.
{¶ 32} The evidence was sufficient on each element of the sexual battery counts to sustain defendant's convictions. The sexual conduct forming the basis of the sexual battery charges is the same as that underlying the rape charges. Thus, for the reasons set forth in our discussion regarding the rape convictions, we reject defendant's contention that the prosecution failed to prove that the sexual conduct underlying the sexual battery charges occurred during the time periods specified in the indictment.
{¶ 33} Defendant next contends that the prosecution failed to prove that defendant was N.J.M.'s natural or adoptive parent, stepparent, guardian, custodian, or person in loco parentis. It is undisputed that defendant was not N.J.M.'s natural or adoptive parent, stepparent, guardian or custodian. The issue thus resolves to whether the state presented sufficient evidence to support a jury finding that defendant was a person "in loco parentis" of N.J.M.
{¶ 34} In State v. Noggle (1993),
{¶ 35} Viewing the evidence presented by the state in a light most favorable to the prosecution, a rational trier of fact could have found all of the elements of sexual battery proven beyond a reasonable doubt, including the element that defendant stood "in loco parentis" of N.J.M.
{¶ 36} Finally, we consider defendant's sufficiency of the evidence arguments as related to his conviction for disseminating material harmful to juveniles. Defendant was convicted of a misdemeanor count of R.C.
{¶ 37} Defendant contends only that the evidence at trial was insufficient to prove that he showed pornographic videotapes to N.J.M. during the time period specified in the indictment. The precise date and time that the harmful material is disseminated to a juvenile is not an essential element of R.C.
{¶ 38} Having determined that the record contains sufficient evidence on each of the elements of the crimes for which defendant was convicted, we overrule defendant's first, second, third, fourth and ninth assignments of error.
{¶ 39} Defendant's fifth, sixth, seventh and eighth assignments of error contend that his convictions for rape and sexual battery are against the manifest weight of the evidence. In essence, defendant contends the jury should not have believed N.J.M.'s testimony and should have believed the testimony tending to support the defense's theory that N.J.M. was ordered by her grandmother to fabricate the allegations against defendant in order to prevent him from seeking custody of Leslie after his relationship with Lisa ended.
{¶ 40} Unlike a challenge to the sufficiency of the evidence, which attacks the adequacy of the evidence presented, a challenge to the manifest weight of the evidence attacks the credibility of the evidence presented. Thompkins, supra, at 386-387. In a manifest weight challenge, the reviewing court sits as a "thirteenth juror and makes an independent review of the record." Id. at 387. In performing this function, "[t]he court, reviewing 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 jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction." State v. Martin (1983),
{¶ 41} Without reservation, N.J.M. identified defendant as the perpetrator of the crimes. N.J.M.'s competency to testify was not challenged. There was no indication that she did not have the intellectual capacity to communicate her observations or recollections. She was cross-examined thoroughly and did not waver in any significant manner from her version of the events. The fact that N.J.M. did not report the abuse until after defendant moved out of the apartment in no way diminishes her credibility. Defendant was N.J.M.'s sole caregiver while her mother was at work and he threatened to kill N.J.M. if she told anyone. From this evidence, the jury could reasonably infer that, given N.J.M.'s young age and dependence on defendant, she was too frightened to report the abuse until she felt she was completely safe from any repercussions by defendant.
{¶ 42} Similarly, the fact that no other testimony corroborated N.J.M.'s testimony did not render N.J.M.'s testimony incredible. As noted previously, the testimony of a person victimized by sexual misconduct need not be corroborated. Further, although Lisa testified that she did not see or hear defendant leave their bedroom during the night and go into N.J.M.'s room, Lisa described herself as a "very heavy sleeper." (Tr. 78.) Thus, the jury could reasonably believe that defendant could have left his bedroom and abused N.J.M. in her bedroom without disturbing Lisa.
{¶ 43} Defendant further contends that N.J.M.'s testimony is not credible because she was unable to specifically articulate the precise dates that the sexual encounters occurred. However, as previously noted, N.J.M. provided sufficient testimony on when the sexual encounters occurred and was able to describe the details of those sexual encounters subject to appellant's convictions. In short, the jury had the opportunity to hear N.J.M.'s testimony and judge her credibility. The jury apparently believed her testimony, and the record does not provide any obvious reason to doubt her credibility. It was well within the province of the jury to believe or disbelieve any or all of her testimony.
{¶ 44} In addition, the jury apparently rejected the defense theory, which was asserted in large measure via the testimony of defense witnesses Rhonda and Misty, that N.J.M.'s allegations resulted from a conspiracy against him orchestrated by N.J.M.'s grandmother. As noted, the jury was free to believe all, none or only part of the testimony of any of the witnesses, including those testifying on behalf of defendant. Such determinations are well within the province of the jury and we discern no miscarriage of justice in the decision to reject the defense theory.
{¶ 45} An appellate court may not substitute its judgment for that of the jury on the issue of witness credibility unless it is manifestly clear the jury lost its way. Martin, supra. Based upon the record before us, we cannot conclude the jury lost its way and created a manifest miscarriage of justice in arriving at its verdicts. To the contrary, the weight of the evidence supports the rape and sexual battery convictions. Accordingly, defendant's fifth, sixth, seventh and eighth assignments of error are overruled.
{¶ 46} Defendant's tenth, eleventh and twelfth assignments of error contend that he was denied a fair trial due to ineffective assistance of counsel. In Strickland v. Washington (1984),
{¶ 47} Defendant initially complains counsel was ineffective in failing to challenge for cause a juror who was allegedly a corrections officer at the penal institution where defendant had previously been incarcerated. Defendant alleges that negative encounters with the corrections officer during the time defendant was incarcerated presumptively biased the juror against him such that he did not receive a fair and impartial trial.
{¶ 48} Significantly, we note that defendant has not provided this court with a transcript of the voir dire proceedings. "The duty to provide a transcript for appellate review falls upon the appellant. This is necessarily so because an appellant bears the burden of showing error by reference to matters in the record. * * * This principle is recognized in App. R. 9(B), which provides, in part, that `* * * the appellant shall in writing order from the reporter a complete transcript or a transcript of such parts of the proceedings not already on file as he deems necessary for inclusion in the records * * *.' When portions of the transcript necessary for resolution of assigned errors are omitted from the record, the reviewing court has nothing to pass upon and thus, as to those assigned of errors, the court has no choice but to presume the validity of the lower court's proceedings, and affirm." Knapp v. Edwards Laboratories (1980),
{¶ 49} Defendant also claims defense counsel was ineffective in failing to call N.J.M.'s grandmother, Nona, as a witness at trial. Defendant suggests that, had Nona been called as a witness, defense counsel could have successfully established that Nona orchestrated the allegations against defendant. However, no evidence exists to suggest how Nona would have testified or how the jury would have viewed her testimony. It is impossible for a court to determine on a direct appeal from a criminal conviction whether counsel was ineffective in his or her representation where the allegations of ineffectiveness are based on facts outside the record. State v. Gibson (1980),
{¶ 50} Further, assuming arguendo that we could properly consider defendant's claim, it is unlikely that defendant could establish ineffective assistance of counsel. "Generally, counsel's decision whether to call a witness falls within the rubric of trial strategy and will not be second-guessed by a reviewing court." State v. Hughbanks,
{¶ 51} Finally, defendant contends that defense counsel was ineffective in failing to introduce evidence regarding a second motivation N.J.M. may have had for asserting the allegations against him. Defendant asserts N.J.M. became upset with defendant after she was exposed to sexually graphic photographs of her mother and defendant and, as a result, may have fabricated the allegations of sexual misconduct with her to keep her mother from resuming her relationship with defendant. As noted previously, this court cannot determine whether counsel was ineffective where the allegation of ineffectiveness is based on facts outside the record. Gibson, supra.
{¶ 52} Having thoroughly reviewed the record, we conclude that defense counsel's strategy, although unsuccessful, was a legitimate approach to defendant's defense. The record demonstrates that defense counsel represented defendant in a competent manner. Accordingly, defendant's tenth, eleventh, and twelfth assignments of error are overruled.
{¶ 53} Having overruled all 12 assignments of error, we hereby affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
Bowman and Bryant, JJ., concur.
