STATE OF OHIO v. OSWALD SIBRIAN
Appellate Case No. 27041
IN THE COURT OF APPEALS OF OHIO, SECOND APPELLATE DISTRICT, MONTGOMERY COUNTY
Rendered on the 28th day of April, 2017.
[Cite as State v. Sibrian, 2017-Ohio-2613.]
WELBAUM, J.
Trial Court Case No. 2015-CR-2076
(Criminal Appeal from Common Pleas Court)
O P I N I O N
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422, Attorney for Plaintiff-Appellee
MARK WIECZOREK, Atty. Reg. No. 0082916, 212 West 8th Street, #300, Cincinnati, Ohio 45202, Attorney for Defendant-Appellant
{¶ 2} In support of his appeal, Sibrian contends that the trial court erred in allowing a State’s witness to testify about sexual abuse disclosures when the witness was neither qualified nor tendered as an expert. In addition, Sibrian contends that the trial court erred in admitting expert testimony when the expert failed to state the basis for her opinion.
{¶ 3} Sibrian further contends that the trial court erred in admitting laboratory reports in violation of
{¶ 4} We conclude that the trial court should not have admitted the laboratory report, as
{¶ 5} We further conclude that two Rape convictions (Counts II and III), and the Gross Sexual Imposition conviction (Count IV) were against the manifest weight of the evidence. The remaining Rape conviction (Count I) was not against the manifest weight of the evidence. Finally, we conclude that no cumulative error occurred requiring a new trial. Accordingly, the judgment of the trial court will be reversed in part and affirmed in part. The convictions and sentences for Counts II, III and IV will be vacated and
I. Facts and Course of Proceedings
{¶ 6} In July 2015, Oswald Sibrian was indicted on three counts of Rape of a person under the age of 13 and two counts of Gross Sexual Imposition of a person under the age of 13. The time frame of the offenses alleged in the indictment was between late May 2012, through late May 2014, during which time the alleged victim, Mary Doe,1 would have been from 11 to 13 years old.2
{¶ 7} The charges arose from conduct that allegedly occurred during the time that Sibrian and his wife, Angela, babysat for Mary and her older brother, Steven Doe, who was born in 1997. When Steven was a baby, Mary’s father, John Doe, hired Angela to watch him. At the time, John’s family lived in the Dayton area, and Angela and Sibrian lived in Springboro, Ohio, with Angela’s family.
{¶ 8} Sibrian was born in April 1981, and married Angie in March 2000. After being released from the military in July 2001, Sibrian became involved in helping with the children’s care almost from the time of Mary’s birth. Mary testified that she saw Angie and Sibrian from three to five days per week. The Sibrians were like second parents, and Mary and Sibrian were very close. From time to time, the Sibrians stayed overnight
(A)(1) No person shall engage in sexual conduct with another who is not the spouse of the offender or who is the spouse of the offender but is living separate and apart from the offender, when any of the following applies:
* * *
(b) The other person is less than thirteen years of age, whether or not the offender knows the age of the other person.
{¶ 67} R.C. 2907.01(A) defines “sexual conduct” as “vaginal intercourse between a male and female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal opening of another. Penetration, however slight, is sufficient to complete vaginal or anal intercourse.”
{¶ 68} Count IV of the indictment charged that Sibrian, between late May 2012 and through late May 2014, had sexual contact with a person under the age of 13, in violation of R.C. 2907.05(A)(4).7 This statute (Gross Sexual Imposition) provides, in pertinent part, that:
(A) No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more other persons to have sexual contact when any of the following applies:
* * *
(4) The other person, or one of the other persons, is less than thirteen years of age, whether or not the offender knows the age of that person.
{¶ 69} “Sexual contact” is defined as “any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing or gratifying either person.” R.C. 2907.01(B).
{¶ 70} The indictment listed dates for the alleged rapes and the gross sexual imposition as between late May 2012, through late May 2014.8 Mary’s birthdate was in late May 2001, so she would have been between 11 and 13 years of age at the listed times (turning 13 in late May 2014).9 During her testimony, Mary referred to a chart showing her age and date of school year. For example, during the 2015-2016 school year, Mary was in 9th grade. She would have turned 13 in late May 2014, when she was still in 7th grade.
{¶ 71} Mary’s direct testimony indicated that sexual abuse began when she was in first or second grade, with the first anal rape occurring in 2011, when her room was still painted pink. This was not within the dates listed in the indictment.
{¶ 73} During her testimony, Mary testified that these were not the only times anything sexual happened between her and Sibrian – that there were “a lot of times it happened.” Excerpted Transcript of Proceedings (Jury Trial, Verdict, and Sentencing), p. 52. However, she did not testify about any other specific incidents.
{¶ 74} We have said that “[o]rdinarily, the date of the offense is not an essential element of the offense.” State v. Bolling, 2d Dist. Montgomery No. 20225, 2005-Ohio-2509, ¶ 36, citing State v. Sellards, 17 Ohio St.3d 169, 478 N.E.2d 781 (1985). We further stated in Bolling that “[c]onsequently, an allowance for inexactitude in the date and time of the offense is permissible, and must be made especially in cases involving the sexual abuse of young children where there are several instances of abuse spread out over an extended time period.” Id., citing State v. Barnecut, 44 Ohio App.3d 149, 542 N.E.2d 353 (5th Dist. 1988), and State v. Mundy, 99 Ohio App.3d 275, 650 N.E.2d 502 (2d Dist. 1994). See also State v. Walton, 2d Dist. Montgomery No. 21643, 2007-Ohio-3169, ¶ 10 (noting that “in cases of child sexual abuse, young victims often are unable to remember exact dates and times when the offenses occurred, especially when the crimes
{¶ 75} In Bolling, we observed that:
C.D. was eight years old when the abuse began and twelve or thirteen when it finally stopped. She could not remember exact dates when the abuse occurred because it had happened too often. Thus, the State was not able to provide more specific dates when the offenses occurred. Defendant does not argue that the imprecision regarding the dates of the offenses prejudiced his defense. Although Defendant filed a notice of alibi consisting of time periods when he worked at different jobs or was out of town, he did not deny that he was alone at times with C.D. during the relevant time periods alleged. Instead, Defendant claimed that the sexual abuse never happened and that C.D. fabricated those allegations to stop Defendant from marrying her mother.
The evidence presented by the State, particularly the testimony by C.D. and her mother, established that Defendant, C.D. and her mother all lived together at Covey Rum apartments from August 1995 to January 1997. Defendant‘s alleged sexual abuse of C.D. started after her mother went to work in October 1995 and occurred on a regular basis. According to C.D., Defendant inserted his fingers into her vagina every couple days, or once every week or once every month, depending on how frequently Defendant was alone with C.D. This evidence, if believed, and when construed in a light most favorable to the State, is legally sufficient to prove that Defendant raped C.D. at lease [sic] once between September 3, 1996
{¶ 76} Although this discussion in Bolling involved sufficiency of the evidence, we also found that the convictions were not against the manifest weight of the evidence. Id. at ¶ 43-49.
{¶ 77} “A weight of the evidence argument challenges the believability of the evidence and asks which of the competing inferences suggested by the evidence is more believable or persuasive.” (Citation omitted.) State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 12. We have often stressed that “[b]ecause the factfinder, be it the jury or * * * the trial judge, has the opportunity to see and hear the witnesses, the cautious exercise of the discretionary power of a court of appeals to find that a judgment is against the manifest weight of the evidence requires that substantial deference be extended to the factfinder‘s determinations of credibility. The decision whether, and to what extent, to credit the testimony of particular witnesses is within the peculiar competence of the factfinder, who has seen and heard the witness.” State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684, *4 (Aug. 22, 1997). See also, e.g., Wilson at ¶ 15; Artz, 2015-Ohio-5291, 54 N.E.3d 784, at ¶ 19.
{¶ 78} In Lawson, we further stressed that “[c]ontrastingly, the decision as to which of several competing inferences, suggested by the evidence in the record, should be preferred, is a matter in which an appellate judge is at least equally qualified, by reason and experience, to venture an opinion. Therefore, although this distinction is not set forth in Thompkins, supra, [78 Ohio St.3d 380, 678 N.E.2d 541,] we conclude that a decision by a factfinder as to which testimony to credit, and to what extent, is a decision that is
{¶ 79} We have reviewed the entirety of the record and find that the convictions are against the manifest weight of the evidence, with the exception of the conviction on Count I. Before discussing this point, we note that even though only excerpts of the record were transcribed and submitted to our court, the State conceded at oral argument that the testimony of all witnesses has been included. As a result, the record is complete for purposes of our discussion.
{¶ 80} As was indicated in our discussion of the Third Assignment of Error, this was largely a case about which party the jury would believe. However, there was evidence, like the green pipe and the vibrator box that came from Hustler, which corroborated Mary’s testimony. Sibrian attempted to develop a theory that Mary had fabricated the events in question because she did not get along with her parents, who favored her brother, and also because Sibrian had told Mary’s mother about Mary’s use of marijuana. The evidence on this issue was not particularly well-developed. In addition, Sibrian’s testimony was not very detailed or persuasive. Therefore, the assignment of error is without merit insofar as the first Rape count (Count I) is concerned.
{¶ 81} However, with respect to Counts II and III, the State failed to provide evidence that would allow a jury to conclude that these alleged Rapes occurred prior to the time that Mary turned 13. Although we have allowed certain leeway in proving dates when the abuse occurs repeatedly and over long periods of time with small children, Mary was fourteen years old (nearly fifteen) when she testified, and she was testifying about events that occurred fairly recently. The State chose to charge Sibrian with having raped
{¶ 82} The first alleged rape that occurred within the dates alleged in the indictment (Count I), occurred, according to Mary, in the basement guest bedroom, either “between 6th and 7th grade,” or in “6th or 7th grade * * *.” Excerpted Transcript of Proceedings (Jury Trial, Verdict, and Sentencing), pp. 41 and 46. See also State’s Brief, p. 13. Assuming that this incident occurred “between 6th and 7th grade,” that would have been in the summer of 2013, when Mary was 12. If the incident occurred in 6th grade, that would have been the school year of 2012-2013, when Mary was 11 or 12. If the incident occurred in 7th grade, that would have been the school year of 2013-2014, during which Mary turned 13 in May. Although the time frame was not definite, there was evidence upon which the jury could reasonably have concluded, of the competing inferences, that the alleged rape occurred prior to the time that Mary turned 13, particularly if the jury believed Mary’s initial testimony. Accordingly, the conviction for Count I was not against the manifest weight of the evidence based on a lack of time frame of the alleged offense.
{¶ 83} The second alleged rape (Count II) was one that occurred in the “man cave.” In this regard, Mary’s testimony was that it occurred at some point after the rape that occurred in the guest bedroom. Excerpted Transcript of Proceedings (Jury Trial, Verdict, and Sentencing), p. 46. In this regard, Mary stated that “I know it was more recent than the 6th or 7th grade incident.” Id. At that point, the following exchange occurred:
Q. Okay. So it was definitely after 2012.
A. Yes.
{¶ 84} The fact that the incident occurred at some point “after 2012,” does not provide a jury with a reasonable basis to conclude that the incident occurred before Mary’s 13th birthday, which was in late May 2014.10 In the first place, Mary’s initial testimony indicated that the rape in the guest bedroom (Count I) occurred between 6th and 7th grade, which would have been in 2013. Based on her later testimony, this rape could also could have occurred during 2012, 2013, or 2014, when she was in 6th or 7th grade. Because Mary stated that the alleged rape in Count II was “more recent” than that rape, it could well have occurred after Mary turned 13.
{¶ 85} Mary gave no further indication of the time frame of the second rape, other than her response of “yes” to the prosecutor’s statement that it was definitely after 2012. However, Mary did not consult with a counselor until May 2015, and her last contact with Sibrian occurred in July 2015. “After 2012” leaves a very large time frame during which Mary was in contact with Sibrian and was over 13 years of age (late May 2014 to at least May 2015). As a result, the jury was left to guess about the time frame, and its conclusion that the rape occurred when Mary was under 13 is against the manifest weight of the evidence.
{¶ 86} The alleged rape in Count III occurred in Mary’s parents’ bedroom, when Sibrian used a white vibrator on Mary. Excerpted Transcript of Proceedings (Jury Trial, Verdict, and Sentencing), pp. 50-51. See also State’s Brief, p. 14. Concerning a time frame for this event, Mary stated that on direct examination that it was “more recent also.” Transcript at p. 50. No potential time-frame was provided at that point. Id. at pp. 50-51.
Q. Okay. Which room were you in when he first used the vibrator on you?
A. Which one?
Q. The white one.
A. The white one I was talking about earlier?
Q. Yes, ma’am.
A. My parents’ room.
Q. Parents’ room.
And what year do you think that was?
A. After – after sixth grade, so seventh or eighth grade.
Q. So, according to the State’s chart, sometime between 2013 and 2015?
A. Yes.
Excerpted Transcript of Proceedings (Jury Trial, Verdict, and Sentencing), p. 61.
{¶ 88} Again, since Mary turned 13 in late May 2014, a date that may have been either before or after she turned 13 (2013 to 2015) did not prove the elements listed in the indictment, i.e., the evidence did not allow a fact-finder to do anything other than guess as to when the incident occurred or whether it occurred within the dates listed in the indictment. This does not mean such an incident did not happen at some point. However, the State chose to charge Sibrian with violations that occurred prior to the time that Mary turned 13, and the State chose which dates to list in the indictment. Consequently, this conviction was also against the manifest weight of the evidence.
{¶ 90} Based on the preceding discussion, the Fourth Assignment of Error is sustained in part. The conviction for Gross Sexual Imposition (Count IV) and two Rape convictions (Counts II and III) are against the manifest weight of the evidence, and will be reversed and vacated. This assignment of error is overruled as to the Rape conviction for Count I, which will be affirmed.
V. Cumulative Errors
{¶ 91} Sibrian’s Fifth Assignment of Error states that:
The Cumulative Errors of the Trial Deprived Appellant of a Fair Trial.
{¶ 92} Under this assignment of error, Sibrian argues that due to the multitude of errors in the trial, he was denied a fair trial. The Supreme Court of Ohio has said that under the cumulative error doctrine, “a conviction will be reversed when the cumulative
{¶ 93} Although we have reversed three convictions based on manifest weight grounds, the only other error that occurred was harmless, and there is no basis upon which to believe that Sibrian was deprived of a fair trial. Accordingly, the Fifth Assignment of Error is overruled.
VI. Conclusion
{¶ 94} Sibrian’s First, Second, Third, and Fifth Assignments of Error are overruled, and his Fourth Assignment of Error is overruled in part and sustained in part. The judgment of the trial court, therefore, is reversed in part and affirmed in part. The convictions and sentences for Counts II, III and IV are reversed and vacated, and the conviction and sentence for Count I are affirmed. This matter is remanded for further proceedings consistent with this opinion.
. . . . . . . . . . . . .
FROELICH, J., concurs.
HALL, P.J., concurring:
{¶ 95} I agree that three of the four convictions are against the manifest weight of the evidence, not because there is any question about whether they were committed, but only because there is a question about whether they were committed within the time frame specified in the indictment.
{¶ 97} The appellant has not provided us with an entire transcript. Although, as the lead opinion recognizes, we apparently have all the testimony, we do not have voir dire, opening statements, closing arguments, or instructions from the court. It could be difficult to connect each of the described events with a count in the indictment except the State
Count one was for an incident in the basement guest bedroom, Count two occurred in the “man room,” Count three occurred in the victim’s parent’s bedroom. Count Four occurred in the shower in the victim’s parent’s bedroom. Each of these is a distinct act committed with a separate animus.
(State’s Memorandum on Merger and Sentencing, filed in the trial court on February 2, 2016, at unnumbered pg. 3).
{¶ 98} After lining up the evidence of the events with the four undismissed counts of the indictment, I join in the conclusion that only count one, the basement guest room incident, is not against the manifest weight of the evidence. Again, it is not that the other incidents didn’t happen; it is just that the State did not introduce weight of evidence to demonstrate they happened after late May 2012 and before late May 2014.13
{¶ 99} I note also that the State did not charge alternative offenses that could apply to the defendant’s criminal actions even if they occurred after the victim reached the age of 13, i.e., rape under 2907.02(A)(1) (a) or (c) or 2907.02(A)(2), or a myriad of other sex offenses that could have been applicable. Accordingly, the jury did not have the ability to find the defendant guilty of some other offense for his actions.
. . . . . . . . . . . . .
Mathias H. Heck, Jr.
Andrew T. French
Mark Wieczorek
Hon. Dennis J. Adkins