STATE OF OHIO v. DEMETRIUS RICHMOND
No. 96155
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
December 15, 2011
[Cite as State v. Richmond, 2011-Ohio-6450.]
BEFORE: Sweeney, J., Kilbane, A.J., and Cooney, J.
JOURNAL ENTRY AND OPINION; Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-540291
RELEASED AND JOURNALIZED: December 15, 2011
ATTORNEY FOR APPELLANT
Paul Mancino, Jr., Esq.
75 Public Square, Suite 1016
Cleveland, Ohio 44113-2098
ATTORNEYS FOR APPELLEE
William D. Mason, Esq.
Cuyahoga County Prosecutor
By: Mahmoud Awadallah, Esq.
William Leland, Esq.
Assistant Prosecuting Attorneys
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
{¶ 1} Defendant-appellant Demetrius Richmond (“defendant“) appeals his convictions and consecutive sentences for rape, kidnapping, felonious assault, domestic violence, and child endangering. After reviewing the facts of the case and pertinent law, we affirm in part and remand for a limited sentencing hearing to address the issues of merger of allied offenses and court costs.
{¶ 2} On July 30, 2010, defendant was charged with 11 counts relating to abuse of his girlfriend‘s son, including domestic violence, five counts of felony child endаngering, three counts of misdemeanor child endangering, felonious assault, rape, and kidnapping. The indictment included sexually violent predator and repeat violent offender specifications. The case proceeded to a jury trial where the following evidence was presented:
{¶ 4} For example, in late August 2005, when C.F. was 11 years old, defendant threw C.F. out of bed, whipped him with a belt, and ordered him to take a shower. While C.F. was in the shower, defendant grabbed C.F.‘s hand and threw him into the air. C.F. landed on the sink and fell to the ground. As a result of this incident, C.F. sustained a fracture in his upper arm near his shoulder.
{¶ 5} Later that day, C.F. complained to the babysitter that his shoulder hurt. The babysitter removed C.F.‘s shirt and noticed that one shoulder appeared to be higher than the other, and the injured shoulder was swollen and hot. C.F. told the babysitter that defendant had knocked him down in the shower and caused the injury. The babysitter called mother and informed her of the injury, however, mother did not take C.F. to the hospital until three days later when her sister, W.C. (“aunt“), threatened mоther that she would call the police if mother did not take C.F. to the hospital. Subsequent x-rays confirmed that C.F.‘s arm was fractured.
{¶ 6} When aunt took C.F. to a follow-up visit with the doctor, C.F. disclosed that defendant had been abusing him. Mother and the children briefly moved in with aunt, but soon moved back in with defendant.
{¶ 8} After the rape, mother and defendant sent C.F. to the store. C.F. testified that he “was thinking about, should I go somewhere. * * * I wanted to kill myself. * * * I got my bike and rode off.” Asked where he was going, C.F. testified, “Far, far away from [defendant]. Far, far away from my home.” C.F. rode from his home on West 33rd Street and Lorain Avenue to Bay Village where he knocked on the door of a random house. When the homeowner opened the door, he found C.F. crying. C.F. stated that he had run away because he was being abused and he was afraid to go home. The police arrived and took C.F. to meet his mother, siblings, and social workers at a safe place.
{¶ 9} When the police arrived at the West 33rd Street house, they observed a man standing outside, who immediately fled. The Cuyahoga County Department of Child and Family Services (“CCDCFS“) and the Cleveland police sex crimes unit investigated C.F.‘s allegations of physical and sexual abuse. Mother told the authorities that she was afraid of defendant, and she and her children moved into a battered women‘s shelter, where they stayed for 11 months. CCDCFS‘s investigation determined that the abuse allegations were substantiated.
{¶ 11} By 2009, all of the children had been removed from mother‘s custody. The children‘s maternal grandmother called the police because they were afraid of defendant, who was still mother‘s boyfriend. The case was reopened, and Detective Georgia Hussein of the Cleveland police sex crimes unit interviewed C.F., who was living at the Berea Children‘s Home. C.F.‘s initial reaction was relief that “somebody finally believes me.” Det. Hussein also interviеwed the other siblings and mother, who refused to disclose defendant‘s location. Det. Hussein arrested her for obstructing justice, and she later agreed to cooperate in the investigation to avoid an indictment.
{¶ 12} On November 15, 2010, the jury found defendant guilty on all counts. The court found defendant guilty on the notice of prior conviction, repeat violent offender, and sexual motivation specifications, but not guilty on the sexually violent predator specification. The court sentenced defendant to an aggregate term of 28 years in prison.
{¶ 13} Defendant appeals and raises 14 assignments of error for our review. In his first assignment of error, defendant argues as follows:
{¶ 15} Specifically, defendant argues that the sexually violent predator specification should have been tried to the jury.
{¶ 16} Pursuant to
{¶ 17} Thus, bifurcation of a sexually violent predator specification is permissible at a defendant‘s election to have the court, instead of a jury, decide the issue. Additionally, specific statutory provisions prevail over general statutory provisions. Trumbull Cty. Bd. Of Health v. Snyder (1996), 74 Ohio St.3d 357, 658 N.E.2d 783. The Ohio Supreme Court has also held that
{¶ 18} In the instant case, the court found defendant not guilty of the sexually violent predator specification, therefore, defendant suffered no prejudice, and his first assignment of error is overruled.
{¶ 19} In his second assignment of error, defendant argues the following:
{¶ 20} “II. Defendant was denied due process of law when the court refused to examine the grand jury proceеdings.”
{¶ 21} Defendant alleges that because two prior indictments against him were dismissed the same day he proceeded to trial, disclosure of the grand jury transcript would have revealed that the process was manipulated and the prosecutors committed misconduct.
{¶ 22} Although there is a general rule of grand jury secrecy, the Ohio Supreme Court recently identified a limited exeption in State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 41:
{¶ 23} “[A]n accused is not entitled to review the transcript of grand jury proceedings ‘unless the ends of justice require it and there is a showing by the defense that a particularized need for disclosure exists which outweighs the need for secrecy.’ A рarticularized need is established ‘when the circumstances reveal a probability that the failure to provide the grand jury testimony will deny the
{¶ 24} In the instant case, defendant fails to establish a particularized need for the grand jury transcripts. “The fact that the grand jury indicted [a defendant] on elevated charges is not in and of itself a sufficient showing of particularized need.” State v. Benge (1996), 75 Ohio St.3d 136, 145, 661 N.E.2d 1019. Additionally, Ohio courts have “determined that a particularized need cannot be established on the basis of speculative pretrial allegations of potentially inconsistent testimony.” State v. Perkins, 191 Ohio App.3d 263, 2010-Ohio-5161, 945 N.E.2d 1083, ¶ 49 (citing State v. Godfrey, 181 Ohio App.3d 75, 2009-Ohio-547, 907 N.E.2d 1230).
{¶ 25} Accordingly, defendant‘s second assignment of error is overruled.
{¶ 26} Defendant‘s third assignment of error states the following:
{¶ 27} “III. Defendant was denied a fair trial and due process of law when a social worker was allowed to testify as to the truth of the allegations based upon interviews.”
{¶ 28} Specifically, defendant argues that the court improperly allowed a social worker to testify that C.F.‘s allegations were “substantiated,” because this testimony amounted to an opinion as to the truthfulness of C.F.‘s allegations.
{¶ 29} In State v. Boston (1989), 46 Ohio St.3d 108, 545 N.E.2d 1220, the Ohio Supreme Court held that in child sexual abuse сases, an expert may not give his opinion as to the child‘s veracity. However, this court has found that Boston
{¶ 30} In the case at hand, C.F. testified and was subject to cross-examination.
{¶ 31} Moreover, CCDCFS social worker Michael Bockmiller did not offer an opinion about C.F.‘s credibility. He testified that he is qualified to render a dispоsition of a case, as “substantiated, unsubstantiated, or indicated,” and that these terms are not legal findings but agency determinations used to denote whether counseling, police investigation, or medical treatment is necessary. Bockmiller explained that a “substantiated” finding merely indicates that there is corroborative evidence of abuse or neglect. Bockmiller never offered an opinion on C.F.‘s credibility or whether the alleged abuse occurred. He merely described CCDCFS procedure when investigating allegations of abuse.
{¶ 32} Therefore, the third assignment of error is overruled.
{¶ 33} In his fourth assignment of error, defendant argues as follows:
{¶ 34} “IV. Defendant was denied his right of confrontation and cross-examination when witnesses were allowed to testify as to information given by other persons.”
{¶ 36} Thus, as a threshold matter, courts must determine whether statements are testimonial before subjecting them to Crawford standards. Id. at 51-52. Testimonial statements are, among other things, “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” (Internal citations omitted.) Id. “In determining whether a statement is testimonial for Confrontation Clause purposes, courts should focus on the expectation of the declarant at the time of making the statement; the intent of a questioner is relevant only if it could affect a reasonable declarant‘s expectations.” State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834, paragraph two of syllabus.
{¶ 37} Defendant argues that the following statements violate Crawford: mother‘s testimony about what C.F. and a social worker stated to her; aunt‘s testimony about what babysitter stated to her; and Bay Village Police Detective Kevin Krolkosky‘s testimony about what C.F. stated to him.
{¶ 39} As Crawford and the Confrontation Clause have no bearing on the instant case, defendant‘s fourth assignment of error is overruled.
{¶ 40} In defendant‘s fifth assignment of error, he argues the following:
{¶ 41} “V. Defendant was denied a fair trial when the court allowed evidence of other bad acts and failed to give any limiting or curative instruction.”
{¶ 42} Specifically, defendant argues that mother‘s testimony that he routinely punched C.F. in the chest as a form of punishment, that he “was messing with one or two of [her] kids,” and that she and defendant “used a lot of drugs * * * together,” was unfairly prejudicial and in violation of
{¶ 43} The decision to admit or exclude relevant evidence is within the sound discretion of the trial court. State v. Bey (1999), 85 Ohio St.3d 487, 490, 709 N.E.2d 484. Pursuant to
{¶ 44} The “other acts” testimony at issue in the instant case does not squarely fall into one of the еnumerated exceptions listed in
{¶ 45} Assuming the testimony was improper, upon review, we find any error harmless given the overwhelming evidence of defendant‘s guilt, which was corroborated by numerous witnesses. See State v. Williams (1988), 38 Ohio St.3d 346, 351, 528 N.E.2d 910 (holding that “[a]lthough the state clearly overstepped the bounds of proper judicial inquiry in cross-examining appellant, we are unable to agree that the error was materially prejudicial to appellant. After a thorough review of the reсord, we do not doubt that the remaining, properly introduced evidence overwhelmingly establishes appellant‘s guilt“).
{¶ 46} Accordingly, defendant‘s fifth assignment of error is overruled.
{¶ 47} In his sixth assignment of error, defendant argues the following:
{¶ 49}
{¶ 50} However, because defendant has already served his sentence on these charges, this assignment of error is moot. On January 24, 2011, the court sentenced Richmond to six months on both counts to be served concurrent to his aggregate 28-year prison sentence. The Ohio Supreme Court has held that “[w]here a defendant, convicted of a criminal offense, has * * * completed the sentence for that offense, an appeal is moot when no evidence is offered from which an inference could be drawn that dеfendant would suffer some collateral disability or loss of civil rights from the judgment or conviction.” State v. Wilson (1975), 41 Ohio St.2d 236, 325 N.E.2d 236, syllabus.
{¶ 51} Furthermore, in State v. Payne, Summit App. No. 21178, 2003-Ohio-1140, the court found that the defendant would not suffer any collateral disability or loss of civil rights where the six-month misdemeanor assault sentence ran concurrently with a longer felony sentence, and the misdemeanor sentence had been fully served.
{¶ 53} In defendant‘s seventh assignment of error, he argues that:
{¶ 54} “VII. Defendant was denied due process of law when the court [failed] to give an accomplice instruction conсerning the testimony of [mother].”
{¶ 55} Specifically, defendant argues that the court should have given the jury a cautionary instruction concerning mothers’ testimony against him because mother was an accomplice to the offenses. However, because defendant failed to request this instruction, we review the issue for plain error.
{¶ 56} Generally, accomplice testimony is admissible when accompanied by the cautionary jury instruction found in
{¶ 57} “If an alleged accomplice of the defendant testifies against the defendant in a case in which the defendant is charged with complicity in the commission of * * * an offense, the court, when it charges the jury, shall state substantially the following:
{¶ 58} ‘The testimony of an accomplice does not become inadmissible because of his complicity, moral turpitude, or self-interest, but the admitted or claimed complicity of a witness may affect his credibility and make his testimony subject to grave suspicion, and require that it be weighed with great caution.
{¶ 59} ‘It is for you, as jurors, in the light of all the facts presented to you from the witness stand, to evaluate such testimony and to determine its quality and worth or its lack of quality and worth.‘”
{¶ 61} In the case at hand, although the jury was not given the accomplice instruction, they were aware that mother was an accomplice testifying for the state against defendant in exchange for immunity. Moreover, several other witnesses including C.F., his sister, aunt, and babysitter corroborated mother‘s testimony that defendant broke C.F.‘s arm and abused him. Additionally, the court instructed the jury that it was to determine the credibility of the witnesses and the weight of the testimony, taking into consideration “the interest or bias the witness has in the оutcome of the verdict.”
{¶ 62} Therefore, the failure to give the required accomplice instruction was harmless and defendant‘s seventh assignment of error is overruled.
{¶ 63} In defendant‘s eighth and ninth assignments of error, he argues as follows:
{¶ 64} “VIII. Defendant was denied due process of law when the court ruled on defendant‘s motion for judgment of acquittal.”
{¶ 65} “IX. Defendant‘s convictions are against the manifest weight of the evidence.”
{¶ 67} To warrant reversal of a verdict under a manifest weight of the evidence claim, this court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether, in resolving conflicts in evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the judgment must be reversed and a new trial ordered. Id.
{¶ 68} Defendant argues that his convictions are “based upon lies, contradictions, fabrications and totally inconsistent statements on the same subject matter by the same witness.” Specifically, defendant alleges that two of the witnesses admitted during their testimony that they were “serial liars.” Mother testified that she initially lied to the authorities about this case by denying knowledge of defendant‘s whereabouts and his abuse of C.F. Mother testified that she lied to protect defendant when her mind was clouded from using drugs.
{¶ 69} Upon review, we summarily overrule defendant‘s eighth assignment of error, because defendant‘s argument is based solely on witness credibility, which is not a factor that affects whether a conviction is supported by sufficient evidence. See
{¶ 70} We turn to defendant‘s argument that his convictions are against the manifest weight of the evidence because mother‘s and C.F.‘s testimony was not credible. In State v. DeHass (1967), 10 Ohio St.2d 230, 231, 227 N.E.2d 212, the Ohio Supreme Court held that “the weight to be given the evidence and the credibility of the witnesses are рrimarily for the trier of the facts.” A jury is free to believe all, part, or none of any witness‘s testimony. State v. Antill (1964), 176 Ohio St. 61, 67, 197 N.E.2d 548. Additionally, the Ohio Supreme Court has noted, “where the decision in a case turns upon credibility of testimony, and where there exists competent and credible evidence supporting the findings and conclusions of the trial court, deference to such findings and conclusions must be given by the reviewing court.” Myers v. Garson (1993), 66 Ohio St.3d 610, 614, 614 N.E.2d 742.
{¶ 71} In the instant case, mother and C.F. testified consistently that defendant repeatedly abused C.F. This was corroborated by C.F.‘s younger sister, who witnessed the incident when defendant threw C.F. out of the shower. Additionally, evidence of C.F.‘s injuries was supported by аunt‘s testimony,
{¶ 72} Accordingly, we find that defendant‘s convictions were not against the manifest weight of the evidence, and his ninth assignment of error is overruled.
{¶ 73} In his tenth and eleventh assignments of error, defendant contends the following:
{¶ 74} “X. Defendant was denied his rights under the Sixth Amendment when he was sentenced [to] a maximum consecutive sentence based upon judicial factfinding.”
{¶ 75} “XI. Defendant was denied due process of law when the court imposed a consecutive, maximum ten (10) year sentence for a repeat violent offender when the court failed to make the statutory findings.”
{¶ 76} In the instant case, the court sentenced defendant to the maximum ten years in prison for the rape conviction, the maximum eight years for felonious assault, and the maximum ten years for the repeat violent offender specification, to run consecutive to one another for an aggregate sentence of 28 years in prison. The sentence for defendant‘s remaining counts was to run concurrently.
{¶ 77} The Ohio Supreme Court set forth the standard for reviewing felony sentencing in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. See, also, State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. Kalish, in a plurality decision, holds that appellate courts must apply a two-step aрproach when analyzing alleged error in a trial court‘s sentencing.
{¶ 78} In the instant case, defendant does not argue that his sentence is contrary to law, and upon review, wе find that it is within the statutory range and does not violate the first prong of Kalish. Furthermore, we find that the court acted within its discretion when sentencing defendant to 28 years in prison.
{¶ 79} The sentencing transcript shows that the trial court considered the facts of the case, the seriousness of the offenses, defendant‘s lengthy criminal record, and lack of remorse. It also shows that the “court has considered the seriousness and recidivism factors and purposes and principles of Senate Bill 2. Prison is very expensive in this state, and in some cases, it‘s well worth it. This is one of those cases * * * You are a sadistic bully who preys on weak, defenseless individuals. You picked on a defenseless, little boy and used him as your punching bag for years.”
{¶ 80} The trial court properly considered the factors in
{¶ 81} Accordingly, the tenth and eleventh assignments of error are overruled.
{¶ 82} In his twelfth assignment of error, defendant argues that:
{¶ 83} “XII. Defendant was subjected to unconstitutional multiple punishments when the court failed to merge various counts of the indictment.”
{¶ 84} Specifically, defendant argues that the court failed to merge his felonious assault, domestic violence, and child endangering convictions for purposes of sentencing. He further argues that his rape and kidnapping convictions should have merged for sentencing; however, a cursory review of the record shows that the court merged these two convictions, and this argument is without merit.
{¶ 85} Defendant failed to object to the court‘s imposition of multiple sentences and has therefore waived all but plain error. Under
{¶ 87} “In determining whether offenses are allied offenses of similar import under
{¶ 88} “‘If the multiple offenses can be committed by the same conduct, then the court must determine whether the offenses were committed by the same conduct, i.e., ‘a single act, committed with a single state of mind.’
{¶ 89} “If the answer to both questions is yes, then the offenses are allied offenses of similar import and will be merged.”
{¶ 90} Felonious assault is defined in
{¶ 91} In analyzing these three offenses under Johnson, we find that they can be committed by the same conduct. Defendant was indicted for one count of felonious assault, one count of domestic violence, and five counts of endangering children for conduct that occured between August 22 and 25, 2005. Evidence presented at trial shows that defendant whipped C.F. with a belt, then threw C.F. out of the shower and injured his shoulder between these dates. We conclude that the whipping is “a single act, committed with a single state of mind,” and the shoulder injury is a second act conducted with a separate animus. Thus, defendant‘s convictions for four counts of endangering children regarding the whipping should have merged for sentencing, and one count each of felonious assault, domestic violence, and endangering children regarding the shoulder injury should have merged for sentencing. Sеe State v. Sutphin, Cuyahoga App. No. 96015, 2011-Ohio-5157; State v. Craycraft, 193 Ohio App.3d 594, 2011-Ohio-413, 953 N.E.2d 337.
{¶ 92} Defendant‘s twelfth assignment of error is sustained, and this matter is remanded to the trial court for further proceedings concerning allied offenses. Pursuant to State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 24, the state may elect which of the offenses to pursue on resentencing.
{¶ 93} In defendant‘s thirteenth assignment of error, he argues as follows:
{¶ 95}
{¶ 96} In the instant case, the state concedes that the trial court failed to impose court costs during defendant‘s sentencing. Accordingly, defendant‘s thirteenth assignment of error is sustained and this matter is remanded to the trial court for the limited purpose of allowing defendant to move for waiver of court costs.
{¶ 97} In his fourteenth and final assignment of error, defendant argues the following:
{¶ 98} “XIV. Defendant was denied effective assistance of counsel.”
{¶ 99} Specifically, defendant argues that his trial counsel was ineffective for failing to request merger of allied offenses at sentencing, failing to move for dismissal for violation of speedy trial, and failing to dismiss counts barred by the statute of limitations.
{¶ 101} Upon review we find that defendant has failed to show that his counsel‘s alleged omissions had a prejudicial effect on the outcome of trial. First, the failure to request merger of allied offenses is rendered moot by the disposition of defendant‘s twelfth assignment of error. Second, defendant fails to show that he was denied the right to a speedy trial, arguing summarily that he was “in jail for over one (1) year * * *.” Third, we overruled defendant‘s assignment of error concerning the statutе of limitations for misdemeanor offenses.
{¶ 102} Accordingly, defendant‘s final assignment of error is overruled.
{¶ 103} Judgment affirmed in part, reversed in part and remanded for a limited sentencing hearing to address the issues of merger of allied offenses and court costs.
{¶ 105} The court finds there were reasonable grounds for this appeal.
{¶ 106} It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
{¶ 107} A certified copy of this entry shall constitute the mandate pursuant to
JAMES J. SWEENEY, JUDGE
MARY EILEEN KILBANE, A.J., CONCURS;
COLLEEN CONWAY COONEY, J., CONCURS IN JUDGMENT ONLY