State v. RodriquezState v. Rodriquez
JUDGMENT: AFFIRMED AS MODIFIED, AND REMANDED
Kevin M. Cafferkey
2000 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
Richard J. Bombik
Lisa M. Stickan
Assistant Prosecuting Attorney
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
N.B. This entry is an announcement of the court‘s decision. See
{¶ 1} Appellant, Farley Rodriquez (“Rodriquez“), appeals his convictions for two counts of rape, each with one- and three-year firearm specifications. Rodriquez argues that his convictions are against the manifest weight of the evidence, that he was convicted under a defective indictment, and that the trial court abused its discretion by failing to merge the one- and three-year firearm specifications because they were part of a single criminal transaction. After reviewing the facts and the pertinent law, we affirm Rodriquez‘s rape convictions, vacate the sentence for one firearm specification, and remand for correction of the journal entry.
Facts and Procedural History
{¶ 2} On April 11, 1999, at approximately 11:30 p.m., V.M.,1 then age 17, had just gotten off work from the Taco Bell located near West Boulevard and Lorain Avenue, in Cleveland, Ohio. She was standing at a payphone in her work uniform on the corner of West 47th Street and Lorain Avenue, engaged in a three-way telephone conversation with her sister and another friend, when Rodriquez approached her from behind, pressed a gun in her back, and ordered her into his car. Rodriquez drove V.M. to the area of West
{¶ 3} V.M. then ran through the neighborhood surrounding West 28th Street and Detroit Avenue and into the Flats until she flagged down a Cleveland police car and told them of her rape and abduction. The Cleveland police transported her to Lutheran Hospital for treatment, where V.M. was examined, counseled, and interviewed by hospital staff and Cleveland police. Samples of DNA were taken as part of the rape kit that was administered to her at that time.
{¶ 4} Although the Cleveland police interviewed V.M. at the hospital and investigated the incident, they were unable to apprehend Rodriquez until the Bureau of Criminal Identification (“BCI“) matched a sample of Rodriquez‘s DNA taken during the investigation of a separate incident with a sample of his DNA taken from V.M. at Lutheran Hospital on the night of the rape.
{¶ 6} On June 18, 2008, Rodriquez validly executed a jury waiver and proceeded to a bench trial. At that time, Rodriquez‘s trial counsel moved the court to dismiss the indictment as defective for failing to state a mens rea requirement on the authority of State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917 (Colon I).
{¶ 7} On July 29, 2008, after the issues were fully briefed, the court denied Rodriquez‘s motion to dismiss with respect to the two rape counts, but dismissed the kidnapping charge against Rodriquez because it found the indictment defective for failing to state a mens rea requirement as to that count.
{¶ 8} On August 1, 2008, the court found Rodriquez guilty of two counts of rape, together with the sexually violent predator specifications, and the one- and three-year firearm specifications in each count.
{¶ 9} At the sentencing hearing on September 18, 2008, the State dismissed the sexually violent predator specifications before the court
{¶ 10} On October 14, 2008, this appeal followed, asserting three assignments of error for our review.
{¶ 11} Rodriquez‘s first assignment of error states:
“Where rape and firearm convictions are based solely on the unreliable statements of an accuser, the State has failed to prove guilt by the manifest weight of the evidence.”
{¶ 12} In Ohio, sufficiency of the evidence arguments present questions of law, while claims based upon the manifest weight of the evidence present questions of fact. State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541. In Thompkins, the Supreme Court illuminated its test for manifest weight of the evidence as follows:
“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.” Id., quoting Black‘s Law Dictionary (6th Ed. 1990) 1594. (Emphasis in original.)
{¶ 13} This court, reviewing the entire record, essentially sits as a “thirteenth juror,” weighing the evidence and all reasonable inferences. See State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720-721. In so doing, we consider the credibility of witnesses and determine 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.” Id. 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. Id. In this matter, we cannot say that the court, as the factfinder, clearly lost its way and created a manifest miscarriage of justice in convicting Rodriquez of the instant offenses.
{¶ 14} Rodriquez argues essentially that his version of events is more believable than the victim‘s version of events. Rodriquez admits that he had sexual intercourse with the victim that night, but argues that V.M. was a prostitute who was unhappy with the fee that Rodriquez paid her. He argues that there were inconsistencies among the hospital records, the police records, and the testimony at trial with respect to whether a gun was present or used in committing the crimes. We find these inconsistencies, to the extent they
{¶ 15} While there is no physical evidence that a gun was actually used to commit these crimes, V.M. testified as follows:
“[H]e walked up to me behind my back, he had something what he said was a gun in my back, and said I needed to get off the phone. * * * I‘m trying to get their attention, and he said, hang up the phone now. And that‘s when I hung up the phone.” (Tr. 43-44.)
{¶ 16} In addition, the Cleveland Police Department‘s field report from the night of the rape, admitted as State‘s Exhibit 10, indicates that Rodriquez used a “blue steel automatic” weapon in committing the crime.
{¶ 17} We note further, that although this incident took place in 1999, V.M. was still able to give strong and consistent testimony in 2008 regarding the events of that night, and she positively identified Rodriquez as her assailant independent of the DNA match.
{¶ 18} V.M. testified that she was employed at Taco Bell. She related the events surrounding the rape and abduction, which included a phone call, Rodriquez threatening her with the gun, and the subsequent acts that occurred in the area of the Lakeview Terrace Estates.
{¶ 20} Finally, Cleveland Police Detective Christine Cottom (“Detective Cottom“) testified that she interviewed V.M. first in 1999, and then again in 2007, after BCI notified the Cleveland police of the DNA match. Detective Cottom further testified that she was present when V.M. positively identified Rodriquez as her attacker, independent of the DNA analysis.
{¶ 21} In light of this evidence, these arguments do not support Rodriquez‘s assertion that his convictions are against the manifest weight of the evidence, simply because his version of events is more believable. We are not at all persuaded that the evidence in this matter weighs heavily against conviction. Rodriquez‘s first assignment of error is overruled.
{¶ 22} Rodriquez‘s second assignment of error states:
“By proceeding to judgment on a defective indictment, the trial court violated appellant‘s constitutional rights to due process and presentment.”
{¶ 24} In Colon I, the Supreme Court held, inter alia, that when an indictment fails to charge a mens rea element of a crime, the error is structural error. Id. at ¶24. In that case, the indictment did not meet constitutional requirements, as it did not include all the essential elements of the offense charged against the defendant. Thus, the defendant was not properly informed of the charge so that he could put forth his defense. Id. at ¶28.
{¶ 25} Rodriquez argues that because the elements of rape in
{¶ 26} Rodriquez was charged under
{¶ 27} It is apparent from the face of the statute that the requisite mens rea for rape in Ohio is “purposely.” That it does not appear until the second sentence of the statute does not mean that the elements of the crime, or even the first element alone, do not require a mental state. We therefore reject Rodriquez‘s argument.
“Section
2907.02(A)(2) provides that, ‘[n]o person shall engage in sexual conduct with another when the offender purposely compels the other person to submit by force or threat of force.’ * * * This Court does not agree with Mr. Ralston‘s argument that the mens rea of recklessness applied to the actus reus for either count. * * * The statutory language indicates that ‘purposely’ applies to both the conduct and the result. State v. Solether, 6th Dist. No. WD-07-053, 2008-Ohio-4738, at ¶90 (quotingR.C. 2907.02(A)(2) ). Thus, ‘a defendant is guilty of rape [or gross sexual imposition if] he purposely compels the victim to submit’ to the sexual activity described by the statute. Id. Mr. Ralston‘s second assignment of error is overruled.” Id. at ¶17. (Brackets in original.)
{¶ 29} Rodriquez argues that Ralston and its progeny were wrongly decided and that we need not engage in either a structural error or plain error analysis under Colon I. However, Rodriquez fails to suggest an alternative means by which the court should analyze this case. Yet, because we have already decided that the statute itself contains the requisite mens rea for commission of the crime of rape, engaging in either analysis is inapposite to our determination of this case.
{¶ 30} Because Colon I is inapplicable, we need not engage in a structural error analysis. Moreover, because
{¶ 31} Rodriquez‘s third assignment of error states:
“The trial court abused its discretion by failing to merge firearm specifications on offenses that were part of a single transaction.”
{¶ 32} Rodriquez argues that the one- and three-year firearm specifications underlying the two counts of rape in this case are but a single transaction or event, and that the individual firearms specifications for each crime should be merged for sentencing purposes. Rodriquez argues that the trial court‘s failure to merge the firearm specifications for sentencing purposes is contrary to law and constitutes an abuse of discretion. We agree.
{¶ 33} In support of this argument, Rodriquez cites State v. Santana, Cuyahoga App. No. 87170, 2006-Ohio-3843, ¶15, which relied on
{¶ 34} The State relies on State v. Wills, 69 Ohio St.3d 690, 691, 1994-Ohio-417, 635 N.E.2d 370, for the proposition that there can be no merger for purposes of sentencing where a separate animus exists with intervening factors, however slight and close in time. We agree with the analysis presented in Wills, where the armed robberies of two victims were not part of a series of continuous acts and, thus, each robbery was a separate “transaction” within the meaning of the firearm specification statute and supported a separate mandatory sentence on each firearm specification. Id. at 691. However, where, as here, the evidence reveals one single animus throughout a single course of conduct with no intervening events, a “separate animus” finding is inapplicable.
{¶ 35} As the Wills court stated, a single “transaction” is a “series of continuous acts bound together by time, space, and purpose, and directed toward a single objective for purposes of firearm specification statute imposing mandatory sentence for each ‘transaction’ performed with assistance of firearm.” Id. at syllabus. While
{¶ 36} From the facts presented, we find that the use of the firearm to commit these crimes is related by time and space to a series of continuous acts, and directed toward a single criminal objective. This criminal conduct was therefore part of a single transaction for sentencing purposes related to the firearm specification. In such cases where “the underlying felonies were clearly committed * * * as part of the same transaction * * * the trial court, pursuant to
“[Where] the record indicates that the offenses were a series of continuous acts with a single objective and were also part of a single criminal adventure, with a logical relationship to one another, which were bound together by time, space, and purpose[,] [t]he trial court err[s] in imposing two separate and consecutive sentences for the firearm specifications * * *.” Id. at ¶41.
{¶ 37} We find that the two counts of rape were committed as a part of the same criminal transaction for purposes of
{¶ 38} Rodriquez‘s rape convictions are affirmed. The sentence for one firearm specification is vacated, and the matter is remanded for correction of the journal entry to reflect one term of incarceration on the accompanying firearm specification.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated.
A certified copy of this entry shall constitute the mandate pursuant to
MARY EILEEN KILBANE, JUDGE
COLLEEN CONWAY COONEY, A.J., and LARRY A. JONES, J., CONCUR