STATE OF OHIO, Plaintiff-Appellee, v. DEMITRUS SOLOMON, Defendant-Appellant.
No. 109535
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
March 25, 2021
2021-Ohio-940
FRANK D. CELEBREZZE, JR., J.
JOURNAL ENTRY AND OPINION; JUDGMENT: AFFIRMED; Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-631697-A
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Ronni Ducoff and Chadwick Cleveland, Assistant Prosecuting Attorneys, for appellee.
Allison S. Breneman, for appellant.
JOURNAL ENTRY AND OPINION
FRANK D. CELEBREZZE, JR., J.:
{¶ 1} Defendant-appellant Demitrus Solomon brings this appeal challenging his convictions and the trial court’s sentence for rape and gross sexual imposition. Appellant argues that his convictions were not supported by sufficient evidence and are against the manifest weight of the evidence, the trial court erred in denying
I. Factual and Procedural History
{¶ 2} The instant matter arose from several sexual-related incidents that occurred between the victim, D.S. (hereinafter “victim”), and appellant. The victim is appellant’s daughter.
{¶ 3} The incidents occurred between November 2017 and May 2018. During the first incident, appellant asked the victim to help her apply lotion to her feet. Appellant grabbed the victim’s foot and put one of her toes into his mouth. This incident occurred in the dining rоom of a house on Scovill Avenue in Cleveland, Ohio.
{¶ 4} According to the victim, subsequent incidents occurred when she and her younger brother, D.S.J., were visiting appellant at a motel. During these subsequent incidents, the victim alleged that appellant (1) touched and sucked the victim’s breast, (2) forced his penis into the victim’s mouth, (3) forced his penis into the victim’s vagina, and (4) forced his penis into the victim’s anus. These incidents will be addressed in further detail below.
{¶ 5} Appellant’s girlfriend at the time of the toe incident, Marshay Shackelford (“Marshay”), walked into the dining room of her home and saw the victim’s toe in appellant’s mouth. Marshay eventually discussed her observation with the victim’s mother, Latisha Griffith (“Latisha”), and Latisha’s boyfriend,
{¶ 6} Latisha took the victim to University Hospitals, Rainbow Babies and Children’s Hospital, on May 27, 2018. Latisha and the victim also spoke with Detective Richard Jackson, with the Cleveland Police Department’s Sex Crimes Unit, and Cierra Lewis, a social worker with Cuyahoga County’s Department of Children and Family Services’ Sexual Abuse Unit.
{¶ 7} On September 25, 2018, appellant was charged in a six-count indictment with (1) rape, in violation of
{¶ 8} Counts 1, 2, and 3 contained a furthermore clause alleging that appellant purposely compelled the victim who was less than 13 years old to submit by force or threat of force. Counts 1, 2, 3, and 4 contained notice of prior conviction and repeat violent offender specifications. Counts 1-5 were committed between January 1, 2018, and May 11, 2018. Count 6 was committed on or about November 1,
{¶ 9} A jury trial commenced on February 4, 2020. The following witnesses testified on behalf of the state at trial: (1) Latisha, (2) the victim, (3) the victim’s younger brother D.S.J., (4) Doctor Regina Yaskey, (5) Marshay (6) social worker Cierra Lewis (7) appellant’s grandmother Beverly Holder, (8) Antonio Poole, and (9) Detective Richard Jackson. The testimony of the state’s witnesses will be set forth in further detail below in the analysis of appellant’s assignments of error.
{¶ 10} At the close of the state’s case in chief, defense counsel moved for a Crim.R. 29 judgment of acquittal on all charges. Specifically, regarding the gross sexual imposition offense charged in Count 6, defense counsel argued that “toes” are not included in the list of erogenous zones under
{¶ 11} The state opposed defense counsel’s Crim.R. 29 motion, arguing that the list of erogenous zones set forth in
{¶ 12} The defense did not call any witnesses at trial. After the parties discussed the jury instructions, defense counsel renewed the Crim.R. 29 motion. The trial court denied the renewed motion.
{¶ 13} Trial concluded on February 10, 2020. On February 14, 2020, the jury returned its verdict. The jury found appellant guilty of rape on Counts 2 and 3, but not guilty on the furthermore clauses alleging that appellant compelled the victim to submit by force or threat of force. The jury found appellant guilty of gross sexual imposition on Count 6. The jury found appellant not guilty of rape on Count 1, kidnapping on Count 4, and gross sexual imposition on Count 5.
{¶ 14} The trial court proceeded immediately to sentencing. The trial court sentenced appellant to a prison term of 23 years to life: indefinite prison terms with a minimum term of ten years and a maximum term of life imprisonment on Counts 2 and 3, and three years on Count 6. The trial court ordered the counts to run consecutively to one another. The trial court ordered appellant to pay a fine in the amount of $750. The trial court classified appellant as a Tier III sex offender/child victim offender on Counts 2 and 3, and a Tier II sex offender/child victim offender on Count 6. The trial court reviewed appellant’s reporting requirements.
{¶ 15} On February 21, 2020, appellant filed the instant appeal challenging the trial court’s judgment.
{¶ 16} The trial court’s February 20, 2020 sentencing entry did not specify the minimum prison term for the indefinite sentences imposed on Counts 2 and 3. The trial court issued a nunc pro tunc sentencing еntry on April 3, 2020, correcting this clerical error. In the nunc pro tunc sentencing entry, the trial court clarified that appellant was sentenced to a prison term of “23 years minimum to life”: a sentence of life with a minimum of ten years on Count 2; a sentence of life with a minimum
{¶ 17} In this appeal, appellant assigns four errors for review:
- I. The jury found, against the manifest weight of the evidence, that the appellant committed the acts charged in the indictment.
- II. The evidence was not legally sufficient to sustain a guilty verdict.
- III. The court failed to declare a mistrial after a witness attacked the defendant in front of the jury.
- IV. The trial court abused [its] discretion by imposing a prison sentence contrary to
R.C. 2929.14 and the purposes and principles of the felony sentencing guidelines and erred by imposing consecutive sentences.
{¶ 18} For ease of discussion, we will address appellant’s assignments of error out of order.
II. Law and Analysis
A. Sufficiency
{¶ 19} In his second assignment of error, appellant argues that his convictions were not supported by sufficient evidence.
{¶ 20} Crim.R. 29 mandates that the trial court issue a judgment of acquittal where the prosecutiоn’s evidence is insufficient to sustain a conviction for the offense. Crim.R. 29(A) and sufficiency of the evidence require the same analysis. State v. Taylor, 8th Dist. Cuyahoga No. 100315, 2014-Ohio-3134. “An appellate court’s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant’s guilt
{¶ 21} The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Vickers, 8th Dist. Cuyahoga No. 97365, 2013-Ohio-1337, citing State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991).
{¶ 22} In the instant matter, appellant references the arguments raised in his first assignment of error challenging the manifest weight of the evidence. “Sufficiency” and “manifest weight” challenges present two distinct legal concepts. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 23. See Cleveland v. Hall, 8th Dist. Cuyahoga No. 101820, 2015-Ohio-2698, ¶ 14, citing App.R. 16(A)(7) (overruling appellant’s assignment of error relating to a sufficiency challenge pursuant to App.R. 16(A)(7) because the appellant did not make a specific argument regarding why the convictions were not supported by sufficient evidence, and only addressed the issues relating to the manifest wеight challenge).
{¶ 23} In support of his sufficiency challenge, appellant argues that “[t]he only evidence that the [s]tate provides to show that [he] raped [the victim] was the testimony of the [victim] and an observation by his ex-girlfriend [Marshay] of an innocent interaction into whether [the victim] was maintaining her hygiene.” Appellant’s brief at 11. Appellant contends that the testimony of the victim and
{¶ 24} Appellant’s “innocent interaction” argument pertains to the manifest weight of the evidence, not the sufficiency of the evidence. Appellant’s argument regarding the lack of any other corroborating evidence is also misplaced. The issue before this court is whether the testimony of the victim and Marshay, if believed, sufficiently established that appellant committed the offenses of rape and gross sexual imposition.
{¶ 25} As noted above, appellant was convicted on Counts 2 and 3 of rape, in violation of
{¶ 26}
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.
{¶ 28} Regarding the rape offense charged in Count 3, the victim testified that she and her younger brother were visiting appellant at the motel. She was sitting on the side of the bed in the motel room watching television. Appellant stood in front of her. She did not recall whether appellant said anything to her. Appellant took his pants and his underwear off. He told the victim to open her mouth. She said she would not. He told her to open her mouth again. She did not comply.
{¶ 29} Appellant took his thumb and used it tо push the victim’s mouth open. This caused her mouth to open. He held his thumb in this position and put his penis in her mouth. Appellant grabbed the victim’s head and pushed her head close to his penis. Appellant did not say anything to her when his penis was in her mouth. Appellant began moving back and forth. She did not recall how the incident ended.
{¶ 30} The victim’s brother was in the shower when appellant forced his penis into her mouth. Appellant told her brother to stay in the bathroom. When appellant was done, he told the brother he could come out of the bathroom. The victim explained that this was not the first “unusual” thing that appellant did to her at the motel.
{¶ 31} Regarding the rape offense charged in Count 2, the victim testified that her brother was in the bathroom of the motel room, and appellant instructed him to stay in the bathroom “[un]til I tell you to come out.” (Tr. 496.) She turned the shower water on for her brother and went back and laid in the bed to watch television. Appellant walked over and was standing next to the bed. Appellant took off the victim’s pants and underwear. Appellant took his clothes off completely and got into the bed and laid beside the victim.
{¶ 32} The victim was laying on her back. Appellant gоt on top of her. She did not feel like she could get away from him. Appellant’s hands were on both sides of her near her waist. Appellant “pulled open” the victim’s legs. She tried to hold her legs together but she was unable to stop appellant from spreading them. After her legs were pulled apart, appellant “put [his penis] inside [the victim’s] vagina.” (Tr. 504.)
{¶ 33} The victim testified that appellant’s penis felt hard when it was inside her and it hurt her. Appellant’s body was moving back and forth when his penis was inside her. Appellant was not saying anything to her. Appellant eventually got off of her and she put her clothes back on. The victim recalled feeling or seeing a white and gooey substance on her stomach when appellant was done.
{¶ 34} The next day, appellant drove the victim and her brother to Latisha’s house. The victim did not tell anybody what happened at the motel.
{¶ 35} After reviewing the record, we find that the testimony of the victim, if believed, satisfied all the elements of rape in violation of
{¶ 36} As nоted above, appellant does not specifically address his gross sexual imposition conviction in challenging the sufficiency of the evidence. “The appellant bears the burden of demonstrating error on appeal by reference to the record of the proceedings below.” Davis v. Wesolowski, 2020-Ohio-677, 146 N.E.3d 633, ¶ 29 (8th Dist.), citing Stancik v. Hersch, 8th Dist. Cuyahoga No. 97501, 2012-Ohio-1955, see App.R. 16(A)(7). Although it is not this court’s duty to construct an argument on appellant’s behalf, we find that appellant’s conviction on Count 6 for gross sexual imposition was supported by sufficient evidence.
{¶ 37} Appellant was also convicted of gross sexual imposition, in violation of
{¶ 38} The victim testified that she went into the dining room of Marshay’s house to put lotion on her feet because they were dry. Appellant was also in the dining room. He was sitting at the table facing the victim. Marshay was in the
{¶ 39} Marshay came into the dining room and saw the victim’s toe in appellant’s mouth. Appellant took her foot out of his mouth. The victim did not say anything to Marshay. The victim went upstairs and got ready for school. She heard Marshay and appellant talking before they left for school. Marshay was upset. She did not tell anybody at school what happened with appellant. The victim was supposed to go back to Marshay’s house after school. Marshay called her cell phone and changed plans. The victim and her brother went back to Latisha’s house after school, not Marshay’s house. They never returned to Marshay’s house after this incident.
{¶ 40} Marshay testified that she was in an off and on rеlationship with appellant between 2013 and 2017. Their relationship ended in 2017. They broke up because she saw “inappropriate behavior between [appellant] and [the victim].” (Tr. 686.)
{¶ 41} Before encountering appellant and the victim in the dining room, Marshay was in the basement. She crept upstairs because she “felt like something was goin[g] on.” (Tr. 689.) She crept around the corner and saw the following:
[Appellant] and [the victim] was both sitting in the chair. Her foot and — her leg, he had her foot, and her toes was in his mouth. I seen it and kind of stepped back, and I had to kinda catch my breath and gather myself, and then I kinda — I walked back out.
And so when I walked back out, I kind of directed my questions toward [the victim]. I asked her, you know, what is going on, baby? Are you okay? What’s going on? She was just kinda like, you know, ain’t nothing going on. Come on, let’s go.
When she said that, the situation kinda got a little hostile. [Appellant] was like — he started calling me names and saying what was I saying? I said, what was going on? Her foot was in your mouth. He said, I was checking her toes and making sure something. This is my daughter. What are you sayin’?
(Tr. 687-688.)
{¶ 42} When she saw the victim’s toe in appellant’s mouth, Marshay pulled back and caught her breath because she “wanted to proceed with сaution.” Marshay explained, “I didn’t want — I did not want to make the wrong decision. I did not want to — I was just kinda thrown off from the whole situation, and I didn’t expect to see what I seen when I hit the corner. And I just didn’t know how to react. So I wanted to make sure that I did not do the wrong thing.” (Tr. 690.)
{¶ 43} Appellant did not return to her house after this incident. Their relationship ended.
{¶ 44} Marshay tried to tell Latisha and Poole about what she witnessed in the dining room. Marshay went to Latisha’s house and attempted to speak with Latisha about “what I had witnessed and what I thought was goin[g] on between [appellant] and [the victim].” (Tr. 694.) After she went to Latisha’s house, Marshay
{¶ 45} Appellant claimed that he had been checking the victim’s toes. Marshay confirmed, however, that she did not consider what she observed in the dining room as having anything to do with appellant checking or giving hygiene instructions to the victim.
{¶ 46} The testimony of the victim and Marshay, if believed, sufficiently established that appellant committed the offense of gross sexual imposition on Count 6.
{¶ 47} Although
Since
R.C. 2907.01(B) contains the phrase, “including without limitation,” it is reasonable to conclude “that the legislature intended that body parts that are not traditionally viewed as erogenous zones, may, in some instances, be considered erogenous zones.” State v. Miesse, 2d Dist. Clark No. 99-CA-74, 2000 Ohio App. LEXIS 3719 (Aug. 18, 2000).Indeed, Ohio courts have typically found that the list of erogenous zones in
R.C. 2907.01 is a non-exhaustive list. See State v. Stair, 12th Dist. Warren No. CA2001-03-017, 2002 Ohio [App. LEXIS 87 (Jan. 14, 2002)] (finding that victim’s hips constituted an erogenous zone); Miesse, supra (holding that the defendant’s kissing, touching, and blowing of the victim’s stomach was sexual contact); State v. Young, 4th Dist. Athens No. 96CA1780, 1997 Ohio App. LEXIS 3882 (Aug. 15, 1997) (holding that touching a victim’s buttock through her clothing constituted sexual contact); State v. Watkins, 10th Dist. Franklin No. 92AP-1546, 1993 Ohio App. LEXIS 2412 (May 4, 1993) (finding that the rubbing of the back of the victim’s leg was sexual contact).
State v. Peddicord, 3d Dist. Henry No. 7-12-24, 2013-Ohio-3398, ¶ 15-16. “Sexual contact, an element of gross sexual imposition, means any nonconsensual physical
{¶ 48} The state was not required to present direct evidence proving the element of sexual arousal or gratification. State v. Kalka, 8th Dist. Cuyahoga No. 106339, 2018-Ohio-5030, ¶ 31. Rather, the jury “may infer that a defendant was motivated by a desire for sexual arousal or gratification from the totality of the circumstances.” State v. Edwards, 8th Dist. Cuyahoga No. 81351, 2003-Ohio-998, ¶ 22, citing State v. Oddi, 5th Dist. Delaware No. 02CAA01005, 2002-Ohio-5926.
[O]ne with a fetish for navels or feet could be in violation of [
R.C. 2907.05(A) ] for touching the navel or feet of another, not his or her spouse, for the purpose of sexual arousal or gratification. Although the body parts, namely navel or feet, are not specifically listed in the “sexual contact” definition [underR.C. 2907.01(B) ], if the state is able to prove beyond a reasonable doubt that, in the mind of the offender, or in the mind of the victim, or in the mind of a reasonable person, those body parts are sensitive to sexual stimulation, or are apt to cause sexual arousal or gratification in either the offender or the victim, and if it was the purpose of the offender in the touching to obtain sexual arousal or gratification for himself or the victim, then the state has carried its burden of proof.
Whether the touching or contact was performed for the purpose of sexual arousal or gratification is a question of fact to be inferred from the type, nature, and circumstances of the contact. [State v. Meredith, 12th Dist. Warren No. CA2004-06-062, 2005-Ohio-2664, ¶ 13], citing [In re Anderson, 116 Ohio.App.3d 441, 443, 688 N.E.2d 545 (12th Dist.1996)], and State v. Mundy, 99 Ohio App.3d 275, 289, 650 N.E.2d 502 [(2d Dist.1994)]. In determining the defendant’s purpose, the trier of fact may infer what the defendant’s motivation was in making physical contact with the victim. Meredith, citing Mundy and [State v. Cobb, 81 Ohio App.3d 179, 185, 610 N.E.2d 1009 (9th Dist.1991)]. “If
the trier of fact determines that the defendant was motivated by desires of sexual arousal or gratification, and that the contact occurred, then the trier of fact may conclude that the object of the defendant’s motivation was achieved.” Cobb [at 185].
In re A.L., 12th Dist. Butler No. CA2005-12-520, 2006-Ohio-4329, ¶ 20.
{¶ 49} In the instant matter, the jury could have reasonably inferred, from the type, nature, and circumstances of the contact between appellant’s mouth and the victim’s toe, that the contact was performed for the purpose of sexual arousal or gratification. Appellant put the victim’s toe in his mouth when they were alone in the dining room. No one else was around. Marshay was in the basement, and the other children were upstairs. Appellant offered to apply the lotion for the victim, and she agreed. Appellant exceeded the scope of the victim’s consent by putting her toe into his mouth. The victim confirmed that appellant did not merely “kiss” her toe, he actually inserted her toe into his mouth. Finally, the victim testified that appellant took her toe out of his mouth when Marshay came into the dining room and saw what was happening.
{¶ 50} Marshay, with whom appellant had been romantically involved between 2013 and 2017, was thrown off when she saw the victim’s toe in appellant’s mouth. So much so that she had to catch her breath and collect hersеlf. Marshay’s observation led her to believe that something “was goin’ on between [appellant] and [the victim].” (Tr. 694.) Marshay was so concerned by her observation and belief that she made arrangements for the victim and her brother to go to Latisha’s house after school, rather than returning to Marshay’s house, and Marshay relayed her
{¶ 51} Furthermore, the jury could have reasonably inferred that appellant performed the contact for the purpose of sexual arousal or gratification from his escalation from sexual contact to sexual conduct. The victim testified that appellant put her toe in his mouth while he was living with Marshay. The victim never returned to Marshay’s house after this initial incident, but she continued to see appellant at the motel. Subsequent incidents occurred at the motel during which appellant escalated from sexual contact to sexual conduct, forcing his penis into the victim’s mouth and vagina.
{¶ 52} Viewing the testimony of the victim and Marshay in a light most favorable to the state, we find that a rational trier of fact could have reasonаbly inferred that appellant put the victim’s toe in his mouth for the purpose of sexual arousal or gratification. Based on the foregoing analysis, appellant’s gross sexual imposition conviction was supported by sufficient evidence.
{¶ 53} For all of the foregoing reasons, appellant’s second assignment of error is overruled. Appellant’s rape and gross sexual imposition convictions were supported by sufficient evidence.
{¶ 54} In his first assignment of error, appellant argues that his convictions are against the manifest weight of the evidence.
{¶ 55} A manifest weight challenge questions whether the state met its burden of persuasion. State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 12. A reviewing court “‘weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines 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.’” Thompkins, 78 Ohio St.3d at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). A conviction should be reversed as against the manifest weight of the evidence only in the most “exceptional case in which the evidence weighs heavily against the conviction.” Id.
{¶ 56} In support of his manifest weight challenge, appellant appears to argue that his convictions were against the manifest weight of the evidence because they were based on the victim’s testimony alone without any corroboration or supporting physical evidence. Appellant appears to challenge the credibility of “the only witness” Marshay and her testimony on the basis that she “was already on the outs with [appellant.]” Appellant’s brief at 10.
{¶ 57} Regarding appellant’s argument that Marshay was not credible, Marshay testified that her relationship with appellant was “[o]n and off since 2013.” The relationship ended in 2017. Marshay testified that the relationship ended
{¶ 58} Marshay acknowledged that her and appellant were already on the rocks before she witnessed the incident in the dining room. She had already been living downstairs in the basement for approximately one month. They did not have plans to officially split up, however. Nor were they trying to reconcile with one another. They were just “seein[g] what was goin[g] on” and she was giving appellant some space. (Tr. 705.)
{¶ 59} Accordingly, the jury had sufficient information about the relationship between Marshay and appellant to assess the credibility of Marshay. The jury also had sufficient information to assess the credibility of all the witnesses. See State v. Davis, 8th Dist. Cuyahoga No. 107925, 2019-Ohio-4672, ¶ 66; State v. Sumlin, 8th Dist. Cuyahoga No. 108000, 2020-Ohio-1600, ¶ 58.
{¶ 60} Appellant appears to argue that the victim’s testimony was not credible because “[m]any additional facts came out during trial that the victim failed to provide in her initial statement.” Appellant’s brief at 10. Defense counsel emphasized and thoroughly explored these discrepancies between the victim’s initial statement to Detective Jackson and her trial testimony on cross-examination. In fact, a 29-minute video of the victim’s initial interview was played for the jury at trial.
{¶ 61} After reviewing the record, we acknowledge that there were, in fact, some minor inconsistencies between the victim’s initial statement to police and trial
{¶ 62} Although there were minor inconsistencies between the victim’s initial statement to police and her trial testimony, the victim’s account of the incidents were largely consistent in all material respects.
[A] defendant is not entitled to reversal on manifest weight grounds merely because certain aspects of a witness’ testimony are inconsistent or contradictory. See, e.g., [State v. Nitsche, 2016-Ohio-3170, 66 N.E.3d 135, ¶ 45 (8th Dist.)]; see also State v. Wade, 8th Dist. Cuyahoga No. 90029, 2008-Ohio-4574, ¶ 38 (“‘A convictiоn is not against the manifest weight of the evidence solely because the [factfinder] heard inconsistent testimony.’”), quoting State v. Asberry, 10th Dist.
State v. Flores-Santiago, 8th Dist. Cuyahoga No. 108458, 2020-Ohio-1274, ¶ 40.
{¶ 63} In the instant matter, although there were some minor inconsistencies between the victim‘s initial statements to police and trial testimony, the record reflects that the victim‘s statements and testimony were consistent in many material respects. The victim‘s testimony is credible and consistent that appellant committed the rape offenses charged in Counts 2 and 3, and the gross sexual imposition offense charged in Count 6.
{¶ 64} Additionally, we find that the aforementioned inconsistencies regarding the order in which the children showered at the motel, whether the brother was in the bathroom or asleep when appellant assaulted the victim, and whether appellant‘s pants were off or on when he forced his penis into the victim‘s mouth should nоt control the outcome of this case. “Minor inconsistencies in witness testimony will not render a conviction so against the manifest weight of the evidence as to cause a miscarriage of justice.” State v. McNamara, 8th Dist. Cuyahoga No. 104168, 2016-Ohio-8050, ¶ 38. The weight of the evidence supports appellant‘s convictions, and the jury did not lose its way and create a manifest miscarriage of justice.
{¶ 66} Finally, appellant contends that the investigation into the victim‘s allegations was “flawed and inadequate[.]” Appellant‘s brief at 10. Defense counsel thoroughly explored and confronted Detective Jackson with the purported deficiencies in his investigation on cross-examination.
{¶ 67} Detective Jackson testified about the investigation he conducted after the matter was reported on May 27, 2018. Detective Jackson testified that he interviewed the victim and her brother. He stated that he also spoke with or reached out to Latisha, appellant‘s grandmother, appellant‘s mother, and Marshay. Detective Jackson reviewed the victim‘s medical records from University Hospitals.
{¶ 69} Detective Jackson acknowledged that he did not conduct a phone dump2 of Latisha‘s cell phone. He did not look at text messages on Latisha‘s phone from the day before or the day after she texted appellant; he explained there was no need to do a phone dump of Latisha‘s phone because of the text messages on her phone from appellant
{¶ 70} Detective Jackson went to the motel where the incidents involving appellant took place. He attempted to get photographs of the motel rooms involved. The motel‘s staff was unable to identify the exact rooms appellant and the children occupied because the viсtim could not recall the exact dates on which the incidents took place. Detective Jackson did not take pictures of the various rooms and room
{¶ 71} He did not come across anything during the course of his investigation that suggested there was any bad blood between the parties that testified in this case, which included the victim, Latisha, and Marshay, that led him to believe that it was necessary to look at additional text messages or conduct a phone dump. (Tr. 782.) Detective Jackson confirmed again that none of the parties showed any bad blood towards each other. Finally, Detective Jackson testified that he did not come across anything during the course of his investigation that led him to suspect that anyone was trying to do harm to appellant by bringing false allegations against him.
{¶ 72} Accordingly, the jury had sufficient information about Detective Jackson‘s investigation to assess his credibility and the credibility of his testimony.
{¶ 73} The state‘s theory of thе case at trial was that appellant put the victim‘s toe in his mouth for the purpose of sexual arousal or gratification, and that appellant raped the victim in the motel. On the other hand, the defense‘s theory of the case was that the incident involving the victim‘s foot was an innocent interaction between appellant and the victim, during which appellant was inquiring about the victim‘s hygiene and smelling her foot. The defense‘s theory was that Marshay made up a false claim because her and appellant were “already on the outs[.]” Appellant‘s brief at 10. Regarding the sexual conduct at the motel, the defense‘s theory was that the
{¶ 74} “‘[A] conviction is not against the manifest weight of the evidence simply because the [finder of fact] rejected the defendant‘s version of the facts and believed the testimony presented by the [prosecution].‘” State v. Jallah, 8th Dist. Cuyahoga No. 101773, 2015-Ohio-1950, ¶ 71, quoting State v. Hall, 4th Dist. Ross No. 13CA3391, 2014-Ohio-2959, ¶ 2. The jury, as the finder of fact, did not lose its way in resolving the conflicting theories based on the evidence presented at trial.
{¶ 75} After reviewing the record, we find аppellant‘s convictions are not against the manifest weight of the evidence. We do not find in resolving conflicts in the evidence that the jury, as the trier of fact, clearly lost its way in finding appellant guilty of rape and gross sexual imposition. Furthermore, this is not the exceptional case in which the evidence weighs heavily against appellant‘s convictions.
{¶ 76} For all of the foregoing reasons, appellant‘s first assignment of error is overruled. Appellant‘s convictions are not against the manifest weight of the evidence.
C. Motion for Mistrial
{¶ 77} In his third assignment of error, appellant argues that the trial court erred in failing to declare a mistrial after appellant was “attacked” by a witness in front of the jury. Appellant‘s argument pertains to the testimony of Poole.
{¶ 79} Following his testimony, and as he stepped down from the witness stand, Poole attempted to physically attack appellant at the defense table and in front of the jury. As he was escorted out of the courtroom, Pоole shouted additional obscenities. (Tr. 751.)
{¶ 80} The trial court ordered the jury to exit the courtroom. After Poole and the jury were out of the courtroom, defense counsel moved for a mistrial, arguing:
Your Honor, based upon the outburst in the court not caused by the Judge, not caused by the prosecutor, not caused by the Defendant, or Defense counsel, we still had an outburst where the witness attempted to attack the Defendant in front of the jury, and it took about five deputies to restrain the gentleman, and there was a fight.
I‘m going to move for a mistrial because it has a highly inflammatory and prejudicial effect upon their ability to consider this case on the merits, so I will move for a mistrial.
(Tr. 751-752.)
{¶ 81} The state argued that because the trial court and the state were not responsible for the outburst, a mistrial was not necessary and a curative instruction would “suffice to serve as a counterbalance to what happened in court.” (Tr. 752.)
{¶ 82} In support of the motion for a mistrial, defense counsel argued, “we‘re entitled to a fresh jury, and not have the taint of that violence against the Defendant in front of the jury.” (Tr. 752.)
{¶ 83} The trial court denied defense counsel‘s motion for a mistrial:
The Court makes thе following finding with reference to your motion. The Court finds that the actions that occurred not as a result of any action by any of the agents of the State of Ohio, nor by any of the members of the Bar Association, for which we are all officers.
The Court doesn‘t feel any of those individuals engaged in any conduct that caused this to arise. That this was an honest spur reaction that was generated by a Defendant‘s witness, and that none of the officers of the Court had anything to do with it.
It was the — Fortunately, the Cuyahoga County Sheriff‘s Department was here to suppress the attack and it was suppressed.
The unfortunate thing is that it did occur in front of the jury. However, they also had the opportunity to hear his testimony, and to witness his anger, and his state of mind. I believe a curative instruction will satisfy a fair and just trial.
And, therefore, the motion will be denied.
(Tr. 752-753.)
{¶ 84} In this appeal, appellant argues that the incident that occurred in front of the jury was “highly traumatic.” He further speculates that it is “highly probable that many of the jurors never have experienced an act of violence in person and were negatively affected. Upon experiencing this traumatic event, it would be highly unlikely that the average juror would be capable of continuing in thеir duty to provide a fair trial to Mr. Solomon.” Appellant‘s brief at 13.
{¶ 85} The trial court should declare a mistrial “only when the ends of justice so require and a fair trial is no longer possible.” State v. Franklin, 62 Ohio St.3d 118, 127, 580 N.E.2d 1 (1991), citing Illinois v. Somerville, 410 U.S. 458, 462-463, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973). A trial court enjoys broad discretion in ruling on a motion for a mistrial. State v. Iacona, 93 Ohio St.3d 83, 100, 752 N.E.2d 937 (2001). This court will not reverse a trial court‘s ruling on a motion for a mistrial absent an abuse of that discretion. State v. Benson, 8th Dist. Cuyahoga No. 87655, 2007-Ohio-830, ¶ 136.
{¶ 86} In support of his argument that the trial court erred by not declaring a mistrial following Poole‘s outburst, appellant directs this court to State v. Scott, 101 Ohio St.3d 31, 2004-Ohio-10, 800 N.E.2d 1133, State v. White, 85 Ohio St.3d 433, 440, 709 N.E.2d 140 (1999), and State v. Morales, 32 Ohio St.3d 252, 513 N.E.2d 267 (1987).
{¶ 87} In Scott, involving a capital murder trial, defense counsel moved for a mistrial on the basis that the victim‘s family members crying during trial “enhanced jury sympathy for [the victim] and his family, thereby depriving [the defendant] of a fair trial.” Id. at ¶ 43. On one of the occasions in which defense counsel moved for a mistrial, defense counsel asserted that a victim‘s mother and some of the jurors had been crying during the testimony of a state‘s witness. Id. at ¶ 46.
{¶ 88} The Ohio Supreme Court set forth the following test regarding emotional outbursts during trial:
a trial court must determine, as a question of fact, whether an emotional outburst [during trial] deprived the defendant of a fair trial by improperly influencing the jury. State v. Benge[, 75 Ohio St.3d 136, 144, 661 N.E.2d 1019 (1996)]; [Morales at 255]; State v. Bradley[, 3 Ohio St.2d 38, 209 N.E.2d 215 (1965)], syllabus. “In the absence of clear, affirmative evidence to the contrary, the trial court‘s determination will not be disturbed.” Morales [at 255].
Scott at ¶ 44. “Only the trial judge can authoritatively determine whether the jury was disturbed, alarmed, shocked, or moved by the demonstration.” Morales at 255
{¶ 90} Poole‘s outburst and attempt to attack appellant was more likely to have a negative impact on the jury‘s perception of Poole and his testimony than on the jury‘s perception of appellant. Poole‘s outburst may have even elicited sympathy for appellant, as Poole was the perpetrator of the attempted attack, and appellant was the victim.
{¶ 91} Furthermore, there is no indication that the jury was improperly influenced by Poole‘s outburst, or that the jury‘s verdict was the product of passion or prejudice that resulted therefrom. As noted above, the jury did not find appellant guilty on all counts and specifications charged in the indictment. It is evident that the jury was capable of following the trial court‘s instructions and considering the evidence as it pertained to each individual count.
{¶ 92} Unlike Scott, 101 Ohio St.3d 31, 2004-Ohio-10, 800 N.E.2d 1133, where a victim‘s mother and members of the jury were purportedly crying during the testimony of a state‘s witness, there is no evidence in this case that the incident had any effect on the jury, or any evidence indicating that any of the jurors displayed
{¶ 93} Finally, in Scott, the trial court “cautioned jurors to focus on the evidence and to disregard extrinsic matters in their decision making.” Id. at ¶ 48. Similarly, in this case, the trial court provided the following curative instruction to the jury following the incident:
Ladies and gentlemen of the jury, the Court would, first of all, like to issue an apology to you both professionally and personally for the display that occurred in the courtroom.
That isn‘t the way we like to conduct ourselves. We consider ourselves as holding a formal proceeding where dignity and respect is shown throughout the course of the proceedings.
However, sometimes emotional things occur. They occur in people‘s personal lives as well as their professional lives. We ask that you understand that, and certainly ask that you do not take that into consideration for your finding of what the facts of this case to be.
We ask, ladies and gentlemen of the jury, that you base your findings solely on the facts as you find them to be in this case, and the law that will be applied to you by the Judge.
I would also like to indicate for the recоrd, the statute does require every time that you leave the courtroom that I give you what‘s called an admonition. And because of the emergency situation that I did not want you to be here in the event of something further occurring, I just asked you to leave. So I want to apologize for that as well. While it is unusual, like I said, it doesn‘t happen like that all the time. And it certainly cannot have any impact on what you find the facts of this case to be.
Now, because our schedule has been interrupted, we are going to recess for the evening.
(Emphasis added.) (Tr. 754-755.)
{¶ 94} This court has explained that “[c]urative instructions have been recognized as an effective means of remedying errors or irregularities that occur during trial.” State v. Williams, 8th Dist. Cuyahoga No. 94242, 2010-Ohio-5484, ¶ 21, citing State v. Ghaster, 8th Dist. Cuyahoga No. 91576, 2009-Ohio-2134, citing State v. Zuern, 32 Ohio St.3d 56, 61, 512 N.E.2d 585 (1987). Furthermore, a jury is presumed to follow instructions provided by the trial court, including curative instructions. Id., citing State v. Henderson, 39 Ohio St.3d 24, 33, 528 N.E.2d 1237 (1988).
{¶ 95} For all of the foregoing reasons, we find that appellant has failed to provide clear and affirmative evidence demonstrating that Poole‘s outburst improperly influenced the jury, materially affected the merits of the case, or deprived appellant of a fair trial. See Statе v. Williams, 8th Dist. Cuyahoga No. 106266, 2018-Ohio-3368, ¶ 41. Therefore, we find no basis upon which to conclude that the trial court‘s judgment denying defense counsel‘s motion for a mistrial, and
{¶ 96} Appellant‘s third assignment of error is overruled.
D. Consecutive Sentences
{¶ 97} In his fourth assignment of error, appellant argues that the trial court abused its discretion and erred in imposing consecutive sentences.
{¶ 98} As an initial matter, we note that this court does not review felony sentencing for an abuse of discretion. Rather, we review felony sentences under the standard set forth in
{¶ 99}
{¶ 100}
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16 ,2929.17 , or2929.18 of the Revised Code, or was under postrelease control for a prior offense.(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender‘s conduct.
(c) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶ 101} Conformity with
{¶ 102} In the instant matter, appellant does not further develop his argument that the trial court erred in imposing consecutive sentences and that consecutive sentences were contrary to
{¶ 103} The record reflects that the trial court made the requisite findings pursuant to
The Court finds that consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct.
When the Court makes that finding, the Court does find that Mr. Solomon used his parental relationship with [the victim] to weaponize his penis and use it against her, and he continued to weaponize his penis on a regular basis, and he never, ever, ever relented. He continued to weaponize his penis and use it against [the victim].
The Court further finds that consecutive sentences are not disproportionate to the danger the offender poses to the public.
When I arrived at that conclusion, the Court does take into consideration the relationship that existed between he [the victim]. The harm that was caused, that he reduced her to nothing, and made her think she was unimportant. And that he never, ever, ever showed any kindness to her once he weaponized his penis and used it against her.
(Tr. 946.)
The Court further finds the offender‘s history of criminal conduct demonstrates that сonsecutive sentences are necessary to protect the public from future crime by the offender.
The Court does find that he has a prior history in front of Judge Robert McClelland in Case No. CR 12-567455 where he was convicted of robbery.
The Court further finds that he has a prior in front of Judge Robert McClelland in Case CR 12-563540 where he pled guilty to trafficking in drugs.
Further, in front of Judge Robert McClelland, Case No. CR 12-562666, he entered a plea of guilty to drug possession.
Additionally, in front of Judge Robert McClelland, in Case No. CR 12-561866-B, he entered a plea of guilty to a trafficking offense.
Lastly, in front of Judge Bridget M. McCafferty, in Case No. CR 9-521197 he entered a plea of carrying a concealed weapon.
The Court further finds that his conduct over the course of this trial where he had people contact the witnesses in this case, and his conduct, once the verdict was read, where he openly yelled out in court about he was innocent indicates that he has no remorse for his conduct.
And, therefore, the Court believes that consecutive sentences are necessary and justified.
(Tr. 945-948.)
{¶ 105} Accordingly, the record reflects that the trial court made the requisite findings during the sentencing hearing under
Consecutive sentence is necessary to protect the public from future crimes and is necessary to punish he offender. Consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and are not disproportionate to the danger the offender poses to the public. Offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶ 106} For all of the foregoing reasons, we find that the trial court made the requisite findings during the sentencing hearing under
{¶ 107} After reviewing the record, we cannot say that the record clearly and convincingly does not support the trial court‘s findings under
{¶ 108} The victim‘s mother, Latisha Griffith, addressed the trial court. Griffith described the impact appellant‘s actions had on the victim‘s life, and how appellant took something from the victim that she will never get back. Appellant‘s actions also “tore [their] family apart, our lives, our sanity.” (Tr. 939.) The victim will be dealing with the impact of appellant‘s actions for the rest of her life.
{¶ 109} For all of the foregoing reasons, we find that the record before this court clearly and convincingly supports the trial court‘s
{¶ 110} Finally, appellant also appears to argue that the trial court‘s imposition of consecutive sentences was contrary to “the felony sentencing guidelines,”
A sentence is contrary to law if the sentence falls outside the statutory range for the particular degree of offense or the trial court failed to consider the purposes and principles of felony sentencing set forth in
Although the trial court must consider the principles and purposes of sentencing, as well as any mitigating factors, the court is not required to use particular language nor make specific findings on the record regarding its
{¶ 113} In the instant matter, the trial court‘s sentence on appellant‘s gross sexual imposition conviction was within the permissible statutory range under
{¶ 114} Aside from this statement in its sentencing entry, the record reflects that the trial court did, in fact, consider
{¶ 115} Appellant has failed to affirmatively demonstrate that the trial court failed to consider
{¶ 116} For all of the foregoing reasons, appellant‘s fourth assignment of error is overruled. The trial court did not err in imposing consecutive sentences, and the trial court‘s sentence is not contrary to law.
III. Conclusion
{¶ 117} After thoroughly reviewing the record, we affirm the trial court‘s judgment. Appellant‘s rape and gross sexual imposition convictions were supрorted by sufficient evidence and are not against the manifest weight of the evidence. The
{¶ 118} Judgment affirmed.
It is ordered that appellee recover from appellant 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 common pleas court to carry this judgment into execution. The defendant‘s convictions having been affirmed, any bail pending is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
FRANK D. CELEBREZZE, JR., JUDGE
ANITA LASTER MAYS, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR