State v. StevensState v. Stevens
Charles M. Conliff, P.O. Box 18424, 5145 Pleasant Avenue, #18, Fairfield, Ohio 45018-0424, for defendant-appellant
O P I N I O N
HENDRICKSON, J.
{¶1} Defendant-appellant, Craig Lee Stevens, appeals his conviction in the Butler County Court of Common Pleas for three counts of rape. For the reasons outlined below, we affirm in part, reverse in part, and remand for further proceedings.
{¶2} At approximately 2:00 a.m. on the morning of March 29, 2008, and after working the third shift as a cook at a local diner, A.K., who was 19 years old at the time, went
{¶3} Sometime after the girls went to sleep, appellant, who had since returned from a bar, entered his daughter‘s bedroom and asked A.K. if that was her car parked outside. A.K. responded affirmatively. Appellant then informed A.K. that she could spend the night and left the room. When asked if she noticed anything unusual about appellant that morning, A.K. stated that he was “intoxicated” and that she “could smell the alcohol.”
{¶4} Several minutes later, appellant came back into the girls’ bedroom, walked to the side of the bed where A.K. was sleeping and started “rubbing” her. A.K., who was “halfway sleeping,” thought it was “weird,” but started to “doze back off.” However, when appellant continued “touching” her, A.K. became scared and tried to wake up C.S. who was sleeping next to her. Appellant continued to touch A.K. for approximately a minute before he exited the room and began pacing in the hallway. While appellant was gone, A.K. testified that she told C.S. that she was scared.
{¶5} Shortly thereafter, appellant again entered the girls’ bedroom, “tried to crawl into bed,” and began “feeling on” A.K. before he “eventually inserted [his finger]” into her vagina and “anal area.” Appellant then pulled A.K.‘s legs apart before “put[ting] his head in between [her] legs” and his “tongue on [her] vagina.” When asked if she was doing anything to prevent appellant from touching her, A.K. testified that she “sa[id] no,” “crossed her legs,” and “tr[ied] to push him off,” and that she never gave him permission to touch her.
{¶6} After appellant left the room for the final time, A.K. called Tom Mapes, appellant‘s neighbor and husband of Dina Mapes, A.K.‘s boss and close friend, and asked
{¶7} Following a police investigation, appellant was arrested and charged with, among other things, three counts of rape.1 At the conclusion of the two day jury trial, appellant was found guilty and sentenced to seven years in prison, ordered to pay a total of $15,000 in fines, and notified that he was subject to a mandatory five year period of postrelease control. Appellant now appeals, raising four assignments of error.
Assignment of Error No. 1:
{¶9} “APPELLANT‘S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL WERE VIOLATED BY PROSECUTORIAL MISCONDUCT.”
{¶10} In his first assignment of error, although couched in terms of prosecutorial misconduct, appellant argues that “this [c]ourt must reverse his conviction because the trial court should have granted his request for a mistrial.” We disagree.
{¶11} “A trial court should not grant a motion for a mistrial unless it appears that some error or irregularity has been injected into the proceeding that adversely affects the substantial rights of the accused, and as a result, a fair trial is no longer possible.” State v. Thornton, Clermont App. No. CA2008-10-092, 2009-Ohio-3685, ¶11, citing State v. Reynolds (1988), 49 Ohio App.3d 27, 33; State v. Blankenship (1995), 102 Ohio App.3d 534, 549. The trial court‘s decision to grant or deny a mistrial rests within its sound discretion, and this court will not disturb such a determination absent an abuse of discretion. State v. Ahmed, 103 Ohio St.3d 27, 2004-Ohio-4190, ¶92; Thornton at ¶11. An abuse of discretion implies that
{¶12} During a sidebar conference, and while A.K., the alleged victim, was on the witness stand, a victim‘s advocate came into the courtroom, approached the witness, and, according to the record, “pour[ed] witness water” and “exchanged pleasantries.” The victim advocate‘s unusual behavior caught the attention of the trial court judge who stated that he “[didn‘t] think that need[ed] to happen again.” After realizing what had occurred, appellant immediately moved for a mistrial arguing that the victim advocate‘s behavior denied him a fair trial by “bolster[ing A.K.‘s] credibility.”2
{¶13} Upon taking the matter into consideration, the trial court noted that “about half of [the jury had] their back to the courtroom,” and that “most of these jurors are not as trained to know what is usual or unusual * * *.” The court then determined that although it would be “incredibly difficult for anyone paying any attention at all not to have seen” the victim‘s advocate approach the witness stand, the “jurors at that time seemed to be very much involved in their conversation,” and that it was “not certain that they would have placed any significance to the fact that it occurred.”3 In denying appellant‘s motion, the court concluded that even though the victim‘s advocate acted “extremely inappropriate[ly],” it was “very difficult while not impossible to figure out what substantial rights of the defendant have been prejudicially affected.”
{¶15} Because there is no indication that appellant‘s substantial rights were somehow prejudiced, the trial court did not abuse its discretion by denying his motion for a mistrial. Accordingly, appellant‘s first assignment of error is overruled.
Assignment of Error No. 2:
{¶17} “THE TRIAL COURT ABUSED ITS DISCRETION BY PERMITTING THE
{¶18} In his second assignment of error, appellant argues that trial court erred by allowing the state to impeach the credibility of C.S., the state‘s own witness and daughter of appellant, by means of her prior inconsistent statement. Specifically, appellant argues that the state “feigned surprise” for the sole purpose of introducing C.S.‘s prior statement. This argument lacks merit.
{¶19}
{¶20} The state called C.S., appellant‘s daughter, to testify regarding the events on
{¶21} During the sidebar conference, the following exchange occurred:
{¶22} “[THE STATE]: Your Honor, * * * I didn‘t interview her. * * * I had tried to make contact with her previously and was unable * * *. I expected her to testify consistent with her statement that she gave previously as I expect every witness to testify consistent with their statement they gave previously. She did not do that.
{¶23} “* * *
{¶24} “THE COURT: Here is the question: Has [C.S.] told [the prosecutor] or any officer of the state, an agent of the [s]tate that she does not intend to testify consistent with her prior written statement to the police?
{¶25} “[THE STATE]: Never.
{¶26} “[APPELLANT‘S TRIAL COUNSEL]: No.
{¶27} “THE COURT: Never?
{¶28} “[THE STATE]: Never.”
{¶29} The trial court then overruled appellant‘s objection and permitted the state to
{¶30} After reviewing the record, it is clear that C.S. never provided express notice to the state that she would recant her original statement when called to testify.6 As the Fifth District Court of Appeals recently found, a trial court does not abuse its discretion by finding that the state was surprised even though it was aware of the possibility that its witness may change her story where there has been no express notice by the witness that she would wholly deny her prior statement provided to the police. State v. Dickie, Licking App. No. 2009-CA-00029, 2009-Ohio-5443, ¶22, citing State v. Lewis (1991), 75 Ohio App.3d 689, 696. As a result, because C.S. never provided express notice to the state of her intention to recant her original statement, the trial court did not err, let alone abuse its discretion, by allowing the state to impeach C.S.‘s credibility by means of her prior inconsistent statement. Bowling, Butler App. No. CA93-01-006 at 5. Therefore, appellant‘s second assignment of error is overruled.
Assignment of Error No. 3:
{¶32} “THE JURY‘S VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
{¶33} In his third assignment of error, appellant argues that his conviction was against the manifest weight of the evidence “because the [s]tate‘s evidence failed to establish that [his] conduct was without the victim‘s consent.” We disagree.
{¶34} A manifest weight challenge concerns the inclination of the greater amount of
{¶35} Appellant was charged with rape in violation of
{¶37} After reviewing the record, and while there may be a question as to A.K.‘s credibility, “the weight to be given the evidence, and the credibility of witnesses are primarily for the trier of facts.” State v. Pringle, Butler App. Nos. CA2007-08-293, CA2007-09-238, 2008-Ohio-5421, ¶28. It is entirely appropriate for the trier of fact to believe the testimony of some witnesses while disregarding the testimony of others. State v. Lloyd, Warren App. Nos. CA2007-04-052, CA2007-04-053, 2008-Ohio-3383, ¶51. As a result, we defer to the jury‘s decision finding A.K.‘s testimony credible for it was “best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony.” State v. Good, Butler App. No. CA2007-03-082, 2008-Ohio-4502, ¶25, quoting Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80. Therefore, because the evidence presented at trial indicated appellant inserted his fingers into A.K.‘s vagina and anal cavity without her consent, and that he performed cunnilingus on her after forcing her legs apart, we cannot say that it clearly lost its way and created such a manifest miscarriage of justice that appellant‘s conviction must be reversed. Accordingly, appellant‘s third assignment of error is overruled.
Assignment of Error No. 4:
{¶39} “THE TRIAL COURT ERRED IN IMPOSING POSTRELEASE CONTROL.”
{¶40} In his fourth assignment of error, appellant argues that although the trial court properly notified him at the sentencing hearing that he was subject to a mandatory five-year period of postrelease control, the trial court erred by incorrectly indicating he was subject to
{¶41} As noted above, appellant was convicted on three counts of rape in violation of
{¶42} However, in its “Judgment of Conviction Entry,” the trial court incorrectly stated that “post release control is optional in this case up to a maximum of three (3) years[.]” As noted by the Ohio Supreme Court, a court imposing mandatory postrelease control is required “to include in the sentencing entry a statement that [the] offender convicted of a first – or second – degree felony offense will be subject to postrelease control after leaving prison.” (Emphasis sic.) State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, ¶68. As a result, because the trial court‘s sentencing entry does not include a statement indicating appellant was subject to a mandatory five year term of postrelease control upon his release, it does not conform to statutory mandates, and therefore, is void. See id.; see, also, State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085; State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250; State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197; State v. Boswell, 121 Ohio St.3d 575, 2009-Ohio-1577. Accordingly, appellant‘s final assignment of error is sustained, we vacate appellant‘s sentence, and remand this matter to the trial court for resentencing. See, e.g., State v. Allen, Sandusky App. No. S-09-004, 2009-Ohio-3799, ¶32; State v. Wheeler, Summit App. No. 24488, 2009-Ohio-3557, ¶12.
{¶43} Judgment affirmed in part, reversed in part, and remanded.
YOUNG, P.J., and RINGLAND, J., concur.
Notes
“I know [the prosecutor] had nothing to do with this, and would have told [the victim‘s advocate] specifically not to do that. The bottom line is that she did it, and it was inadvertent.”