Case Information
*1
[Cite as
State v. Slaughter
,
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case No. 25270 Plaintiff-Appellee :
: Trial Court Case No. 2011-CR-4059 v. :
: LAVATA SLAUGHTER : (Criminal Appeal from
: (Common Pleas Court) Defendant-Appellant :
:
. . . . . . . . . . .
O P I N I O N
Rendered on the 3rd day of May, 2013.
. . . . . . . . . . . MATHIAS H. HECK, JR., by JOSEPH R. HABBYSHAW, Atty. Reg. #0089530, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee J. DAVID TURNER, Atty. Reg. #0017456, Post Office Box 291771, Kettering, Ohio 45429-1771
Attorney for Defendant-Appellant
. . . . . . . . . . . . .
HALL, J. Lavata Slaughter appeals from his conviction and sentence following a bench
trial on one count of sexual battery in violation of R.C. 2907.03(A)(2). Slaughter advances three assignments of error on appeal. The first two
challenge the legal sufficiency and manifest weight of the evidence to support his conviction. The third alleges ineffective assistance of trial counsel.
{¶ 3} The record reflects that Slaughter was convicted of sexual battery for performing oral sex on twenty-one-year-old W.Y., who has a mental impairment and an I.Q. of sixty-two. The incident occurred in Slaughter’s apartment, where W.Y. had gone to get help completing a rental application. At trial, Slaughter admitted the sexual activity. The only issues were (1) whether W.Y. qualified as “substantially impaired” within the meaning of R.C. 2907.03(A)(2) and, if so, (2) whether Slaughter knew of the impairment. Based on the evidence presented, the trial court found that Slaugher had performed oral sex on W.Y. with knowledge that W.Y’s ability either to appraise the nature of his conduct or to control his conduct was substantially impaired. As a result, the trial court found Slaughter guilty, imposed a two-year prison sentence, and designated him a Tier III sex offender. This appeal followed. Slaughter’s first two assignments of error challenge the legal sufficiency and manifest weight of the evidence to support his conviction. Specifically, he contends prosecution witness Robert Hankey, a school psychologist, failed to establish that W.Y. was substantially impaired in his ability either to appraise the nature of his conduct or to control his conduct. Although Hankey gave W.Y. an I.Q. test and an achievement test, Slaughter argues that these tests measured mental and social abilities in the context of a special-education curriculum, not W.Y.’s ability to consent to sexual conduct, appraise the nature of sexual conduct, or control his sexual conduct. Slaughter also notes that Hankey did not administer a third test known as adaptive-behavior test. When a defendant challenges the sufficiency of the evidence, he is arguing that
the State presented inadequate evidence on an element of the offense to sustain the verdict as a
matter of law.
State v. Hawn
,
conviction is challenged on appeal as being against the weight of the evidence, an appellate court
must review the entire record, weigh the evidence and all reasonable inferences, consider witness
credibility, 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. Thompkins
, 78 Ohio St.3d 380, 387,
and abilities in an educational setting. Hankey worked as a psychologist for Huber Heights City Schools, where W.Y. had attended classes prior to graduating in October 2011 at age twenty-one. Hankey testified that he had given W.Y. an I.Q. test and an achievement test in December 2010. (Trial Tr. at 91). W.Y. scored sixty-two on the I.Q. test, placing him above just one-percent of the population. ( Id . at 93). The score indicated “mild mental retardation.” ( Id . at 92-93). The achievement test indicated that W.Y.’s academic skills ranged from the kindergarten to second-grade level, depending on the subject. ( Id . at 94-95). Based on his evaluation of W.Y., Hankey opined that W.Y. might “experience great difficulty in keeping up with his peers in a wide variety of situations that require thinking and reasoning abilities.” ( Id . at 97). He added that a person with an I.Q. of sixty-two is “typically slow at processing” information. ( Id . at 105).
{¶ 9} Hankey was not the only witness who provided relevant testimony. W.Y.’s mother testified that he has cerebral palsy, for which he receives S.S.I., and that he has the mind of “a child.” ( Id . at 54, 57, 60). She explained that he rides a bike for transportation and enjoys roller skating and outings to Chuck E. Cheese. ( Id . at 57-59). In his mother’s opinion, W.Y. never could live on his own. ( Id . at 61). Wayne High School intervention specialist Christine Fansler also testified about
W.Y.’s mental condition. Fansler explained that she had interacted with W.Y. in the context of preparing an individual education plan. The plan addressed reading, math, and “some adaptive behavior issues.” ( Id . at 112). Fansler described “adaptive behavior” as “a measure of [a student’s] coping skills, a measure of their sociability, how social they are, how they interact with people.” ( Id .). According to Fansler, W.Y. has trouble understanding things that are “not concrete.” ( Id . at 113). He misses “subtle, social nuances from others” and sees things in black-and-white terms. ( Id . at 113-114). W.Y.’s own trial testimony provided additional insight into his mental capacity.
W.Y. recalled meeting Slaughter at an RTA hub downtown and exchanging phone numbers. ( Id . at 20). W.Y. wanted to get his own apartment, and Slaughter offered to help him complete an application. ( Id . at 21). W.Y. rode his bicycle to Slaughter’s apartment for that purpose. Slaughter answered W.Y.’s knock on the door wearing only a bikini bottom. ( Id . at 22). Slaughter led W.Y. to a bedroom, where a pornographic video was playing. ( Id. at 23). As W.Y. tried to complete the 6 application, Slaughter began rubbing W.Y’s neck. ( Id . at 25). Slaughter then sat beside W.Y. and asked if he was “all hard.” ( Id . at 26). W.Y. testified that he responded, “No, why would you say that?” ( Id .). Shortly thereafter, Slaughter was interrupted by a knock on the front door. ( Id . at 27). W.Y. remained in the bedroom. He testified that he “didn’t know what was going to go down.” ( Id . at 28). When Slaughter returned, he took W.Y.’s penis out of W.Y.’s pants, placed it in his mouth, and sucked on it. ( Id . at 29). W.Y. responded by trying to get up and telling Slaughter he had to leave. ( Id . at 29-30). W.Y. testified that he did not want to engage in oral sex with Slaughter and did not give Slaughter permission to do so. ( Id . at 29). Finally, the State played a videotape of Slaughter being interviewed by a
detective after his arrest. During the interview, Slaughter described W.Y. as “childlike.” He also responded affirmatively when the detective suggested that he “took advantage” of W.Y. and thought W.Y. was “slow” and “easy.” At trial, Slaughter testified and admitted that W.Y. “does seem like he has a little bit of handicap, some kind of disability as far as understanding some things.” ( Id . at 150). In our view, the State’s evidence was legally sufficient to support Slaughter’s
sexual-battery conviction, and the conviction was not against the weight of the evidence. On
appeal, Slaughter complains that psychologist Hankey’s testimony focused on W.Y.’s I.Q. and
scholastic achievement. Pursuant to
Zeh
, such testimony alone arguably might not be enough to
prove a reduction, diminution or decrease in W.Y.’s ability either to appraise the nature of his
conduct or to control his conduct.
[1]
On the other hand, Hankey’s testimony was not irrelevant. A
trier of fact may consider a victim’s I.Q., mental age, and academic ability when determining
whether a substantial impairment exists under R.C. 2907.03(A)(2).
See
,
e.g.
,
State v. Wade
, 9th
Dist. Medina No. 02CA0076-M,
W.Y.’s mother testified that he has cerebral palsy, has the mind of “a child,” and enjoys roller
skating and trips to Chuck-E-Cheese. In addition, intervention specialist Fansler testified that
W.Y. misses subtle, social nuances. But W.Y.’s own testimony provided perhaps the most
compelling evidence of a substantial impairment in his ability either to appraise the nature of his
conduct or to control his conduct with regard to the sexual activity at issue. By his own
admission, W.Y. accepted an invitation into the apartment of Slaughter—a relatively casual
acquaintance who was wearing only a bikini bottom—and followed him to a bedroom where a
pornographic video was playing. Slaughter proceeded to rub W.Y.’s neck and inquire whether
W.Y. was “all hard.” Despite these not-so-subtle cues, W.Y. appeared perplexed and asked why
Slaughter would say such a thing. At that point, W.Y. still “didn’t know what was going to go
report.” Zeh,
down.” These facts strongly suggest that W.Y. was substantially impaired in his ability either to appraise the nature of his conduct or to control his conduct in the bedroom with Slaughter.
{¶ 15} The State’s evidence also supports a finding that Slaughter knew of W.Y.’s substantial impairment. Slaughter was in the room with W.Y. and was capable of observing W.Y.’s difficulty comprehending what was happening and what Slaughter had in mind. We note too that Slaughter described W.Y. as “childlike” after the incident, agreed that he ”took advantage” of W.Y., and thought W.Y. was “slow” and “easy.” Even at trial, Slaughter acknowledged that W.Y. “does seem like he has a little bit of handicap, some kind of disability as far as understanding some things.”
{¶ 16} Having reviewed the record, we believe a rational trier of fact could have found Slaughter guilty of sexual battery for engaging in sexual conduct with W.Y. while knowing that W.Y.’s ability either to appraise the nature of his conduct or to control his conduct was substantially impaired. The evidence does not weigh heavily against the conviction. Accordingly, the first two assignments of error are overruled. In his third assignment of error, Slaughter alleges ineffective assistance of
counsel based on his attorney’s failure (1) to seek suppression of his oral and written statements to police, (2) to challenge Hankey’s qualifications as an expert, and (3) to request a court-appointed expert to examine W.Y. To prevail on his claim, Slaughter must show that his attorney’s performance was
deficient and that the deficient performance prejudiced him.
Strickland v. Washington
, 466 U.S.
668, 687,
{¶ 19}
Although Slaughter complains about the lack of a suppression motion below, he
does not identify any grounds for suppression or even attempt to show that suppression was
warranted. (Appellant’s Brief at 15). His bare assertion that counsel failed to seek suppression is
insufficient because the failure to file a suppression motion is not per se ineffective assistance.
State v. Madrigal
,
assistance in the lack of an objection. Defense counsel reasonably could have concluded that the State had established Hankey’s qualifications as an expert. At the outset of his testimony, Hankey explained that he had approximately twenty-seven years of experience as a school psychologist and held a bachelor’s degree in education and a master’s degree in school psychology. Although Slaughter also complains that Hankey’s testimony concerned only W.Y.’s capabilities in an educational setting (as opposed to his capacity to understand and consent to sexual behavior), we concluded in our analysis above that Hankey’s testimony was relevant. Finally, we see no ineffective assistance based on defense counsel’s failure to
seek a court-appointed expert to examine W.Y. On the record before us, we have no basis to
conclude that a court-appointed expert would have found W.Y. not substantially impaired within
the meaning of R.C. 2907.03(A)(2). Therefore, Slaughter cannot establish prejudice. Compare
In
re C.C., M.C.
, 9th Dist. Summit No. 25835,
. . . . . . . . . . . . .
FAIN and WELBAUM, JJ., concur.
Copies mailed to:
Mathias H. Heck
Joseph R. Habbyshaw
J. David Turner
Hon. Gregory F. Singer
Notes
[1] As noted above, the Ohio Supreme Court in Zeh opined that “substantial impairment must be established by demonstrating a present reduction, diminution or decrease in the victim’s ability, either to appraise the nature of his conduct or to control his conduct. This is distinguishable from a general deficit in ability to cope, which condition might be inferred from or evidenced by a general intelligence or I.Q.