STATE OF OHIO v. MARK SCHWARZMAN
No. 100337
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
June 5, 2014
[Cite as State v. Schwarzman, 2014-Ohio-2393.]
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-12-567998
BEFORE: Stewart, J., Celebrezze, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: June 5, 2014
Joseph V. Pagano
P.O. Box 16869
Rocky River, OH 44116
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Brian R. Radigan
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 9th Floor
Cleveland, OH 44113
{1} A jury found defendant-appellant Mark Schwarzman guilty of three counts of rape, one count of attempted rape, and four counts of kidnapping. The victim of the offenses, Schwarzman‘s stepdaughter, claimed that Schwarzman repeatedly raped her over an eight-year period commencing in 1999 when she was just eight years old. In this appeal, Schwarzman raises eight assignments of error that collectively challenge the sufficiency and weight of the evidence; the indictment‘s failure to specify the dates on which the alleged crimes occurred; the court‘s failure to grant a continuance of trial so that trial counsel could complete an investigation; errors regarding the admission of trial testimony; and the imposition of consecutive sentences.
I
{2} The first assignment of error addresses the court‘s refusal to grant a trial continuance. The court scheduled trial for June 24, 2013. On June 18, 2013, Schwarzman filed a motion for a continuance because, as relevant to this appeal, he claimed that an investigator he hired was conducting additional interviews of prospective defense witnesses. When the parties convened for trial, defense counsel told the court that the investigator wished to question family members who resided with Schwarzman and the victim during the time of the alleged sexual abuse. The court denied the motion on grounds that trial had been pending for more than two months and that Schwarzman could subpoena those persons to testify if he wished.
{4} On the facts presented, we find no abuse of discretion. The court noted that trial had been set for more than two months and that the parties had a “final” pretrial on May 8, 2013, yet Schwarzman waited until just less than one week before trial to file his motion. The motion itself was bare bones and stated that “the Defendant has hired an investigator and is conducting additional interviews of prospective witnesses regarding the above-captioned matter” and that he was awaiting the production of records he subpoenaed from the alleged victim‘s school and the department of children and family services. The transcript shows that defense counsel offered no justification for the delay in speaking to family members other than to say that it was Schwarzman, not defense counsel, who retained the investigator. Even so, the investigator said that she became involved with the case on May 19, 2013, so she had a full month in which to question the family members. Those family members were all known to Schwarzman and
II
{5} The second assignment of error challenges the specificity of the indictment. The indictment provided two ranges of dates on which the alleged acts of sexual abuse occurred: January 1, 1999 to December 31, 1999 and January 1, 2001 to December 31, 2001 (there were other dates listed in the indictment, but Schwarzman was found not guilty of those offenses). Schwarzman complains that the open-ended dates on a “series of virtually identical counts” did not contain sufficient distinguishing detail to afford him an opportunity to prepare a meaningful defense, thus allowing him to be prosecuted for a course of conduct rather than separate offenses.
{6} Schwarzman did not raise any objections to the form of the indictment prior to trial as required by
{7} The sufficiency of an indictment is measured by two criteria under the Due Process Clause: first, it must sufficiently apprise a defendant of the criminal conduct for
{8} Schwarzman makes no argument that the indictment failed to contain a statement, couched in the words of the applicable statutes, sufficient to apprise him of the elements of the offenses with which he was charged. Instead, he argues that the indictments did not contain sufficient distinguishing detail with respect to when those offenses occurred. He claims that the indictment charged acts occurring within the time span of one year, and barring a more limited time frame in which his acts allegedly occurred, he was unable to provide evidence in the form of employment records that may have provided an alibi.
{9} An indictment charging sexual offenses against children “need not state with specificity the dates of alleged abuse, so long as the prosecution establishes that the offense was committed within the time frame alleged.” Yaacov, supra, at ¶ 17. See also
{10} Schwarzman‘s citation to the United States Court of Appeals for the Sixth Circuit decision in Valentine v. Konteh, 395 F.3d 626 (6th Cir.2005) does not dictate the resolution of this appeal. Valentine was charged with 20 counts of rape and 20 counts of felonious sexual penetration of a child occurring in the ten-month span between March 1995 and January 1996. He complained that the wide date range specified in the indictment prejudiced his ability to offer alibi defenses. The Sixth Circuit acknowledged that “fairly large time windows in the context of child abuse prosecutions are not in conflict with constitutional notice requirements.” Id. at 632. It thus found that the date range itself was not problematic, but that “the prosecution did not provide the defendant with exact times and places.” Id. The Sixth Circuit found the lack of any dates particularly problematic because the child victim could only “describe[ ] ‘typical’ abusive behavior by Valentine and then testified that the ‘typical’ abuse occurred twenty or fifteen times.” Id. at 633.
III
{12} Schwarzman next argues that the state offered insufficient evidence to show that the offenses occurred within the time frame alleged in the indictment. He maintains that the victim could only give approximate statements as to when the rapes occurred; for example, that they occurred when she was “approximately ten,” or when she was “approximately in the third grade,” and “approximately 2001.” He also argues that the state failed to prove when the rape alleged in Count 9 of the indictment occurred.
A
{13} The Due Process Clause of the Fourteenth Amendment “protects a defendant in a criminal case against conviction ‘except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.‘” Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), quoting In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). The relevant question “is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. This is a highly deferential standard of review because “it is the responsibility of the jury — not the court — to decide what conclusions should be drawn from evidence admitted at trial.” Cavazos v. Smith, 565 U.S. 1, 132 S.Ct. 2, 3, 181 L.Ed.2d 311 (2011).
B
{14} The version of
{15} “Ordinarily, precise times and dates are not essential elements of offenses,” State v. Sellards, 17 Ohio St.3d 169, 171, 478 N.E.2d 781 (1985), but the date of the offense is an essential element of rape under
{16} Although the victim‘s age is an essential element of rape under
C
{17} The victim testified that she was born in February 1991. When she was eight or nine years old, she, her mother, and two sisters moved into Schwarzman‘s house to live with him and his two daughters.
{18} In 2001, the victim recalled a time that she accompanied Schwarzman to his third-shift job at a retail store. When they arrived home, the victim‘s mother was at work and her sister and stepsisters were sleeping. As the victim headed up to her bedroom, Schwarzman pulled her by the arm into his bedroom. He undressed her, put on a condom, had her lay on the bed, and engaged in intercourse with her. When he finished, he fell asleep. The victim said she “stayed still” on the bed, not moving until
{19} The victim recounted another occasion in 2001 when she was in third grade, when Schwarzman told her to come to the basement. He removed her clothes, put on a condom, and began to engage in intercourse with her. He was interrupted, however, by the one of the victim‘s stepsisters. Schwarzman went over to the stepsister (his daughter) and told her not to say anything about what she saw because “daddy will go to jail.”
{20} A rational trier of fact could find that the victim‘s testimony showed that Schwarzman‘s acts of rape occurred when she was less than 13 years of age. This testimony was sufficient evidence of the three counts of rape.
D
{21} The sole count of attempted rape relates to an incident in which a nude Schwarzman took the victim into the dining room of their house and was undoing the drawstring of her pants when her younger sister entered the room. After being discovered, Schwarzman ran into the bathroom. The victim said “[I] pulled my pants up and I tied them in a knot” so that she could tell her sister that Schwarzman was trying to untie her pants because she was unable to do so.
{22} Originally charged as rape in Count 9 of the indictment, the count alleged the date of the offense as January 1, 2001 to December 31, 2001. When asked when this attempted rape occurred, the victim said, “I want to say ‘04.” Likewise, the sister who witnessed the incident testified but was unable to give a year for when it occurred. When
{23} The victim‘s 13th birthday occurred in February 2004, so it was possible that the attempted rape occurred before the victim turned 13 years of age. The sister said that she moved into Schwarzman‘s house in 2001, when she was in the second grade. Even if the sister was in the fifth grade at the time of the attempted rape (and assuming a typical school year running through at least the month of May), it was possible that the victim was not more than 13 years of age at the time of the offense.
{24} When ruling on the legal sufficiency of the evidence, we must view the evidence in a light most favorable to the state. On the evidence presented, a rational trier of fact could find that the testimony of either witness made it possible that the attempted rape occurred before the victim turned 13 years of age, even if outside the dates alleged in the indictment. When a defendant is charged with offenses against children under the age of 13, “[t]he only effect the date and time have on the offense is to show that the victims were under the age of thirteen at the time of the offense.” State v. Hupp, 3d Dist. Allen No. 1-08-21, 2009-Ohio-1912, ¶ 9. That neither the victim nor her sister could remember the exact date of the offense does not render their testimony unpersuasive — any inconsistency goes to the weight of their testimony.
IV
A
{26} The manifest weight of the evidence standard of review requires us to review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine 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. Otten, 33 Ohio App.3d 339, 340, 515 N.E.2d 1009 (9th Dist.1986).
B
{27} Schwarzman correctly notes that the state had no physical evidence to prove that he raped the victim. However, the victim gave testimony that was corroborated in significant respects by other witnesses. For example, the victim testified that Schwarzman used condoms when raping her and that the rapes often occurred in the basement laundry area of their house. The victim‘s mother testified that she was going through a pile of clothes in the basement when she picked up one of Schwarzman‘s jackets. A jacket pocket contained approximately six used condoms, filled with semen and individually-wrapped in tissues. Thinking he was having an affair, the mother confronted Schwarzman. He told her that she was never home: an allegation that
{28} The discovery of the used condoms was significant for two reasons. First, the victim testified that Schwarzman used them when raping her, so the mother‘s discovery of the used condoms in a part of the house where the rapes often occurred substantially bolstered the victim‘s story. Second, the jury could find Schwarzman‘s explanation for the used condoms unconvincing, choosing instead to believe that his attempt to hide them manifested a consciousness of illicit conduct. In fact, Schwarzman‘s boss testified and denied telling him to masturbate while wearing a condom. The boss did, however, recall that Schwarzman told him about his wife wanting a divorce after discovering the used condoms. The boss‘s testimony was consistent with that of the mother, who testified that after finding the used condoms, she told Schwarzman that she wanted a divorce.
{29} Another example in which the victim‘s testimony was corroborated came when she testified that on one occasion when Schwarzman had been raping her on the basement couch, her mother and a friend arrived home unexpectedly. Schwarzman stopped, pulled up his pants, and told the victim to go to the washing machine and pretend to fold clothes. When the mother saw the victim, she asked her “what was going on?”
{30} The victim‘s testimony about being discovered in the dining room by one of her sisters was corroborated by the sister, who clearly recalled the incident. The sister testified that it was early morning and she noticed that the victim was not in the room they shared. She snuck downstairs and saw Schwarzman and the victim in the corner of the dining room, with the victim standing against the wall. When Schwarzman saw the sister, he ran to the bathroom “really fast pulling up his pants.” The victim told her sister that Schwarzman had been trying to help her untie her pants.
{31} The victim‘s siblings also testified that Schwarzman treated the victim as a favorite. He would introduce the victim to his friends as “his number one, this is my girl,” but would refer to her sisters as “his wife‘s children.” The victim‘s mother confirmed Schwarzman‘s favoritism, noting that he would give the other girls money for their birthdays, but that he would dress the victim “from head to toe,” buying all kinds of clothing. He also offered to pay for the victim‘s education when he did not make the
C
{32} Schwarzman challenges the victim‘s version of events by noting that she remained silent about the abuse for eight years and even chose to remain living with him after her mother moved out of the house.
{33} The victim testified that she did not disclose Schwarzman‘s abuse for two reasons: she was afraid of breaking up the family and thought that he was suicidal and would kill himself if she made the truth about him known. The jury could find that explanation convincing. What is more, even if the evidence did not show that Schwarzman groomed the child for sexual molestation, there was testimony from multiple persons in the household that he treated her as his “number one,” showering her with attention and gifts that he did not provide to the other girls in the household. The jury may well have believed that the level of attention that Schwarzman showered on the victim would have excused her, a mere child, from being able to understand why his conduct was wrong.
D
{34} One of the state‘s witnesses, the victim‘s stepsister who witnessed the rape in the basement, gave the police a statement about the incident. The stepsister said in the statement that Schwarzman saw her as he had intercourse with the victim. Schwarzman
{35} The best that can be said for the stepsister‘s testimony is that she made it impossible for the jury to find her credible: she either lied in her sworn police statement or she lied in her trial testimony. Or as the court noted, the stepsister could not be considered reliable. Her testimony helped neither party, so it cannot now be used to challenge the credibility of the state‘s other witnesses.
E
{36} Finally, Schwarzman argues that the victim‘s inability to give specific times and dates of the rapes meant that the state‘s evidence was vague. As we earlier noted, it is not unusual for child sexual molestation victims to be vague on the times and dates of when the abuse occurred. This is particularly so when, as here, the abuse was ongoing for a period of years. The specific instances to which the victim testified were corroborated in large part by other witnesses, so the jury did not lose its way by finding the victim‘s testimony credible.
V
{38} The victim‘s mother testified that she first learned of the victim‘s accusations against Schwarzman when at a police station, after reading a book (described by the parties as a “diary“) that the victim gave her. The state did not question the victim about the diary in her testimony, so Schwarzman objected to its contents as hearsay. The state told the court that it was planning to show the mother “this piece of paper and [ask] her if that is what she read.” The court told the state, “[t]hat is all she can say.” The mother went on to testify that she first became aware of what happened to the victim after reading the diary. When the state asked, “what was your reaction after reading that document,” the court sustained a defense objection and told the state to “move on.” Schwarzman argues that the court erred by allowing the state to ask if the mother first learned of the victim‘s allegations against him after reading the diary, so the diary was
{39} The diary is a written assertion made out of court. However, it was not presented for the truth of the matter asserted and is, therefore, not hearsay. See
VI
{40} The state called the victim‘s stepsister to testify, and during her testimony asked her about the police statement she gave that detailed two instances in which she witnessed Schwarzman raping the victim. The stepsister admitted that she gave the statement, but claimed that it was false and brought about because she visualized the victim‘s allegations to the point where she believed that they actually occurred. The state then sought to impeach the stepsister on grounds that it did not anticipate that she would testify and recant her statement. The court allowed impeachment over objection, but prohibited the state from using the statement as substantive evidence and instructed the jury accordingly. Schwarzman complains that the state failed to show that it was surprised as a predicate for impeachment.
{42} There is no question that the stepsister‘s trial testimony was materially inconsistent with the statement she gave the police: the statement detailed two instances in which the stepsister claimed to have witnessed Schwarzman having intercourse with the victim, but the stepsister testified that she fabricated what she described in the statement. That recantation constituted material damage to the state‘s case.
{43} Schwarzman argues that the state had reason to believe that the stepsister would recant her testimony because the stepsister said that she twice called the detective who took the statement in an attempt to recant it. The stepsister‘s trial testimony showed, however, that she never spoke with the detective: “he never called me back or answered.” It was thus unclear whether the detective even received the stepsister‘s message. With the absence of facts showing otherwise, the court found no basis for concluding that the state knew that the stepsister would recant her testimony. We cannot conclude that the court abused its discretion by finding surprise and allowing the state to impeach the stepsister under
VII
{45} The court did not abuse its discretion by sustaining the objection because the proffered testimony was irrelevant to any fact of consequence at trial. See
{46} To the extent that Schwarzman believed the question was proper as a means of impeaching the victim, the court did not abuse its discretion in disallowing it because the victim did not deny knowing the neighbor‘s son — she testified that the neighbor had
VIII
{47} At sentencing, the court merged the four kidnapping counts into their corresponding rape or attempted rape counts. The court imposed eight-year sentences on each of the three rape counts and the single attempted rape count. It ordered Schwarzman to serve Counts 3 and 5 concurrently and further ordered him to serve Counts 7 and 11 concurrently, but ordered Counts 7 and 11 to be served consecutive to Counts 3 and 5. This resulted in a total prison term of 16 years. Schwarzman‘s assignment of error complains that his sentence is contrary to law because it is disproportionate to his conduct and contrary to the principles and purposes of felony sentencing, but he does not independently argue those points. Instead, he maintains that the record does not support the court‘s findings for imposing consecutive sentences. He also argues that a minimum sentence would have achieved the objectives of punishing him without imposing an unnecessary burden on state or local resources.
{48}
{49} Schwarzman concedes that the court made the required findings necessary to impose consecutive sentences, but argues that those findings were not supported by the record.
{50} Schwarzman does not say which of the three findings the court made pursuant to
{51} For similar reasons, we reject Schwarzman‘s argument that the length of his sentence placed an unnecessary burden on state and local resources in violation of
{52} In any event, although the court did not specifically mention division (A) of
{53} Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas 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.
MELODY J. STEWART, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and SEAN C. GALLAGHER, J., CONCUR
100337
KEY WORDS AND SUMMARY
Rape; indictment; evidence; consecutive sentences; hearsay; relevancy. Sufficient evidence existed to find defendant guilty of multiple counts of rape that were charged as having occurred during a one-year time frame because indictments charging the rape of a child under the age of 13 need not contain specific dates as long as the evidence shows that the rapes occurred before the child turned 13 years of age. The victim in this case gave testimony showing that the rapes occurred before she turned 13 years of age, so there was sufficient evidence presented.