State v. StewartState v. Stewart
APPEARANCES:
Karyn Justice, Esq., The Law Office of Karyn Justice, LLC, Portsmouth, Ohio, for appellant.
Brigham M. Anderson, Lawrence County Prosecuting Attorney, and Andrea M. Kratzenberg, Lawrence County Assistant Prosecuting Attorney, Ironton, Ohio, for appellee.
Hess, J.
{¶1} James D. Stewart appeals from a judgment of the Lawrence County Common Pleas Court convicting him, following a jury trial, of three counts of rape. Stewart presents four assignments of error asserting that (1) his “convictions are not supported by the manifest weight of sufficient evidence,” (2) the trial court erred when it imposed financial sanctions against him, (3) trial counsel was ineffective for failing to request a waiver of court costs, and (4) his sentence is contrary to law. For the reasons which follow, we overrule the assignments of errоr and affirm the trial court‘s judgment.
{¶2} In March 2022, Stewart was indicted on three counts of rape of E.S.1 in violation of
A. E.S.‘s Testimony
{¶3} E.S. testified that Stewart is her biological father and that he had custody of her until June 2020. In May 2020, when E.S. was 13 years old, she lived with Stewart, her siblings, and Stewart‘s girlfriends, Letitia Cisqavay (Letitia Gerrad at the time of trial) and Faith Long (Gerrad‘s niece). One day that month, E.S. “got aggravated” while she was with Stewart and Long. Stewart told E.S. that she “should start masturbating because it would help with” her “frustration and attitude.” E.S. testified that at some point, Long showed her pornography at Stewart‘s request.
{¶4} E.S. also testified about three incidents in which Stewart engaged in sexual conduct with her that month. The first incident happened one night when E.S. was sitting on the couch watching a movie with Stewart and Long. Stewart told E.S. to “slide off” her overalls. After E.S. “put them back on,” Stewart asked her to perform oral sex on Long. E.S. and Long performed oral sex on each other. E.S. testified that Stewart then performed “vaginal sex on Faith, over my head, and then also did the same thing to me.” E.S. testified that Stewart‘s penis entered her vagina. E.S. testified that she did not want to have sex with Stewart and that she was forced to do so. E.S. testified that he had been an abusive parent and that she was scared of him. She also testified that Stewart choked
{¶5} The second incidеnt happened the same night as the first incident, after E.S. went to bed. E.S. and her sister were asleep in E.S.‘s bed. Stewart came into the bedroom, got E.S. up, bent her over the bed, and penetrated her vagina with his penis.
{¶6} The third incident happened the next day or the day after that when E.S. was alone with Stewart on the couch. Stewart slid her leg over his lap, had her sit on him, and then “vaginally penetrated again.” Stewart also inserted his penis into E.S.‘s mouth and had her perform oral sex on him.
{¶7} In June 2020, E.S. reported the incidents to T.P. E.S. testified that T.P. dated Stewart for a few years and that E.S. maintained a relationship with T.P. after they split up. T.P. contacted law enforcement and got E.S.‘s siblings under the pretense of taking them on a boat ride. None of the children ever went back to Stewart‘s home. They went to live with T.P., who later adopted E.S.
{¶8} On cross-examination, E.S. admitted that in June or July 2020, she was interviewed at a hospital and said the incidents with Stewart happened “April-ish.” E.S. testified that she “did not have a full time frame of it because we were out of school.” E.S. admitted she did not mention the pornography during the interview. With respect to the first incident, E.S. admitted she told the interviewer that she was playing a game before the incident, that she refused to perform oral sex on Long, and that Long tried to perform oral sex on her but could not because Stewart was over top of Long. E.S. admitted she told the interviewer the second incident happened the morning after the first incident while the other kids were outside. She testified that after the interview, shе realized that was
{¶9} E.S. admitted that she did not like Stewart‘s military style of discipline or the fact that he prohibited her from dating, which she did anyway. E.S. admitted that she had said T.P. was the only one who had ever been there for her and that she called T.P. “mom” even when she lived with Stewart. However, E.S. denied making up the incidents with Stewart so she could live with T.P. E.S. testified, “I was fine with where I was at until everything went down.”
B. Long‘s Testimony
{¶10} Long testified that she met Stewart through Garred. Stewart and Garred lived together, but their relationship “seemed more on the open side of things.” From around March or April 2020 until May or June 2020, Long lived with them, E.S., and other children. Long began to have a sexual relationship with Stewart without Garred‘s knowledge. Long did not recall being present for a conversation between Stewart and E.S. about masturbation. She recalled Stewart mentioning that E.S. “was questioning what masturbation was,” and E.S. asking her about masturbation. Long testified that probably in late April 2020, she showed E.S. pоrnography. Then that night, when Long
{¶11} At some point, Long told her doctor about the incident, and law enforcement became involved. Long pleaded guilty to raping E.S. She faced a maximum sentence of 11 to 16.5 years. She received a recommended sentence of three to four and a half years in prison, and the state agreed to not oppose releasе after she served two years. Long testified that she must register as a sex offender for life.
{¶12} Long admitted that she does not like Stewart and that in May 2022, she told investigators she would not make a statement unless it was going to get Stewart into trouble. When defense counsel asked if Long told investigators that Stewart had never been violent or abusive with her, Long testified, “If I said that, that wasn‘t true. I‘m saying it now.” Counsel then asked, “So, you gave false information to the investigators?” Long testified, “At that point, more than likely, I was just too nervous.” Long maintained that her testimony was true.
C. Garred‘s Testimony
{¶13} Garred testified that she had known Stewart for four or five years. They are friends but previously dated and lived together. Garred testified that she is familiar with Stewart‘s penis and that it is straight and “pretty large” when erect. She testified that Stewart‘s penis is “probably, at least, a good seven/eight inches uhm, and it‘s very thick.
D. Verdict and Sentencing
{¶14} The jury found Stewart guilty as charged. At the sentencing hearing, E.S. gave a victim impact statement and told the court Stewart deserved the maximum sentence. The state asked the court to impose maximum consecutive sentences. Defensе counsel told the court that Stewart had “served his country,” had “virtually no prior record,” “maintains his innocence, which is his right to do,” and planned to appeal. Counsel asked the court “for leniency” and “the minimum sentence on each count.” The trial court gave Stewart an opportunity to speak, and he declined to say anything.
{¶15} The trial court sentenced Stewart to 11 to 16.5 years in prison on each count and ordered that the sentences run consecutively, for an aggregate sentence of 33 to 38.5 years in prison. The court ordered Stewart to pay a $20,000 fine on each count, for a total of $60,000 in fines. The court also assessed court costs against him and designated him a Tier III sex offender.
***
{¶16} Defense counsel then asked thе court “to set aside the fines and costs that were imposed based upon Mr. Stewart‘s indigency.” Counsel stated, “This was a court appointed case. He‘s been indigent from the beginning. He has filed [sic] out his
II. ASSIGNMENTS OF ERROR
{¶17} Stewart presents four assignments of error:
- Mr. Stewart‘s convictions are not supported by the manifest weight of sufficient evidence.
- The court erred when it imposed financial sanctions against Mr. Stewart.
- Mr. Stewart received ineffective assistance of counsel for failing to request a waiver of court costs.
- Mr. Stewart‘s sentence is contrary to law.
III. FIRST ASSIGNMENT OF ERROR
{¶18} In the first assignment of error, Stewart contends that his convictions “are not supported by the manifest weight of sufficient evidence.” Stewart maintains that the state failed to provide credible evidence sufficient to establish his guilt beyond a reasonable doubt. He asserts there are inconsistences between E.S.‘s interview statements and testimony regarding when the incidents occurred, whether E.S. had oral sex with Long, and the circumstances under which the second incident occurred. Stewart claims there are inconsistencies between E.S. and Long‘s testimony regarding when events occurred, the masturbation discussions, whether E.S. drank before the first incident, and where E.S. was when the first incident began. In addition, Stewart claims there are inconsistencies between E.S. and Garred‘s testimony about the appearance of his penis.
A. Standard of Review
{¶20} In reviewing the sufficiency of the evidence for a conviction, “[t]he 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. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, superseded by constitutional amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102, 684 N.E.2d 668 (1997), fn. 4, and following Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “A sufficiency assignment of error challenges the legal adequacy of the state‘s prima facie case, not its rational persuasiveness.” State v. Anderson, 4th Dist. Highland No. 18CA14, 2019-Ohio-395, ¶ 13. “That limited review does not intrude on the jury‘s role ‘to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from
{¶21} In determining whether a conviction is against the manifest weight of the evidence, an appellate court
must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that reversal of the conviction is necessary. In order to satisfy this test, the state must introduce substantial evidence on all the elements of an offense, so that the jury can find guilt beyond a reasonable doubt.
Although a court of appeals may detеrmine that a judgment of a trial court is sustained by sufficient evidence, that court may nevertheless conclude that the judgment is against the weight of the evidence. However, we are reminded that generally, it is the role of the jury to determine the weight and credibility of evidence. ” ‘A jury, sitting as the trier of fact, is free to believe all, part or none of the testimony of any witness who appears before it.’ ” State v. Reyes-Rosales, 4th Dist. Adams No. 15CA1010, 2016-Ohio-3338, ¶ 17, quoting State v. West, 4th Dist. Scioto No. 12CA3507, 2014-Ohio-1941, ¶ 23. We defer to the trier of fact on these evidentiary weight and credibility issues because it is in the best position to gauge the witnesses’ demeanor, gestures, and voice inflections, and to use these observations to weigh their credibility.
(Citations omitted.) Anderson at ¶ 14-15. ” ‘Ultimately, a reviewing court should find a trial court‘s decision is against the manifest weight of the evidence only in the exceрtional case where the evidence weighs heavily against the decision.’ ” State v. Allen, 4th Dist. Ross No. 21CA3736, 2022-Ohio-1180, ¶ 27, quoting State v. Gillian, 4th Dist. Gallia No. 16CA11, 2018-Ohio-4983, ¶ 28, citing State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 330.
B. Elements of the Offenses
{¶22}
{¶23} “A defendant purposely compels another to submit to sexual conduct by force or threat of force if the defendant uses physical force against that person, or creates the belief that physical force will be used if the victim does not submit.” State v. Schaim, 65 Ohio St.3d 51, 600 N.E.2d 661 (1992), paragraph one of the syllabus. ” ‘[S]ome amount of force must be proven beyond that force inherent in the crime itself.’ ” State v. Torres, 2023-Ohio-1406, 213 N.E.3d 287, ¶ 47 (4th Dist.), quoting State v. Zimpfer, 2d Dist. Montgomery No. 26062, 2014-Ohio-4401, ¶ 46, quoting State v. Dye, 82 Ohio St.3d 323, 327, 695 N.E.2d 763 (1998). However, ” ‘any amount of physical force or threat of physical force, however slight, is sufficient to support * * * a rape conviction under
When the relationship between the victim and the defendant is one of child and parent or child and caretaker, the element of force need not be openly displayed or physically brutal. It can be subtle or slight and psychological or emotionally powerful. Evidence of an express threat of harm or evidence of significant physical restraint is not required. If you find beyond a reasonable doubt that under the circumstances in evidence the victim‘s will was overcome by fear or duress, or intimidation, the element of force has been proved.
The court also instructed the jury that a threat “includes a direct and indirect threat.”
C. Analysis
{¶25} The state introduced evidence from which any rational trier of fact could have found the essential elements of rape proven beyond a reasonable doubt, and in resolving conflicts in the evidence, the jury did not clearly lose its way or create such a manifest miscarriage of justice that reversal of the rape convictions is necessary. E.S. testified that when she was 13 yeаrs old, Stewart, her biological father, engaged in sexual conduct with her on three occasions while she was in his custody. E.S. testified that during the first incident, Stewart had vaginal sex with her. E.S. felt like she had to have sex with him because he had been an abusive parent, she feared him, and he choked Long during the incident, which scared her. E.S. testified that the second incident happened the same night as the first incident. She was asleep, and Stewart got her up, bent her over the bed, and inserted his penis into her vagina. E.S. testified that the third incident happened the next day or the day after that and that Stewart slid her leg over his lap, had her sit on him, “vaginally penetrated again,” and inserted his penis into her mouth.
{¶27} There are some inconsistencies between E.S.‘s interview statements and trial testimony and between her trial testimony and the testimony of Long and Garred. However, E.S. and Long agreed on key points related to the first incident, such as that Stewart instigated oral sex between E.S. and Long before putting his penis into E.S.‘s vagina. And again, the jury ” ‘sitting as the trier of fact, is free to believe all, part or none of the testimony of any witness who appears before it.’ ” Anderson, 4th Dist. Highland No. 18CA14, 2019-Ohio-395, at ¶ 15, quoting Reyes-Rosales, 4th Dist. Adams No. 15CA1010, 2016-Ohio-3338, at ¶ 17, quoting West, 4th Dist. Scioto No. 12CA3507, 2014-Ohio-1941, at ¶ 23. The jury was aware of the inconsistencies and potential biases of the witnesses. It is evident from the verdict that the jury credited E.S.‘s version of events, and her testimony is not so incredible as to be unworthy of the jury‘s acceptance of it.
IV. SECOND ASSIGNMENT OF ERROR
{¶29} In the second assignment of error, Stewart contends that the trial cоurt erred when it imposed financial sanctions against him. Stewart asserts that
{¶30}
The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court‘s standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court‘s findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
“Clear and convincing evidence is that measure or degree of proof which is more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. A sentence is “otherwise contrary to law” when it is ” ‘in violation of statute or legal regulations at a given time.’ ” State v. Bryant, 168 Ohio St.3d 250, 2022-Ohio-1878, 198 N.E.3d 68, ¶ 22, quoting State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 34, quoting Black‘s Law Dictionary 328 (6th Ed. 1990).
{¶31}
{¶32} “In general, a sentencing court‘s imposition of a financial sanction under
{¶33} We do not clearly and convincingly find that the imposition of fines is contrary to law. “A trial court‘s statement in a judgment entry that it considered the offender‘s present and future ability to pay a fine is evidence that the trial court considered
{¶34} Although the court did not have to make any specific findings, the sentencing entry states that the court “finds that the defendant is able to pay a fine.” Even though Stewart disagrees and asserts the information in the recоrd shows he lacks the present or future ability to pay, “nothing in
B. Court Costs
{¶35} “[C]ourt costs are not financial sanctions.” State v. Dawson, 2017-Ohio-965, 86 N.E.3d 672, ¶ 42 (8th Dist.). Therefore,
{¶36} “By statute, the imposition of court costs on all convicted defendants is mandatory.” State v. Taylor, 161 Ohio St.3d 319, 2020-Ohio-3514, 163 N.E.3d 486, ¶ 6.
{¶37} Stewart maintains that his trial counsel did not move the trial court to waive court costs but suggests the trial court committed plain error by not waiving them sua sponte. However, trial counsel did move the trial court to waive court costs at the sentencing hearing. Counsel asked the court “to set aside the fines and costs that were imposed,” asserting Stewart did not have the present or future ability to pay them given his indigency and the length of his sentence. The trial court took the matter under advisement and then implicitly denied the motion when it issued the sentencing entry. “We review a trial court‘s decision regarding a motion to waive, suspend, or modify the payment of costs under an abuse of discretion standard.” State v. Smith, 2023-Ohio-1235, 212 N.E.3d 1112, ¶ 9 (4th Dist.), citing State v. Bolin, 4th Dist. Athens No. 21CA14, 2022-Ohio-3375, ¶ 6. ” ‘To find an abuse of discretion, an appellate court must determine the trial court‘s decision is unreasonable, arbitrary, or unconscionable.’ ” Id., quoting Bolin at ¶ 6.
in the abstract, there are many other criteria that can equally justify a decision to waive, suspend, or modify the imposition of costs in a particular case. A court might, for instance, look to whether the costs are unfairly excessive given the degree of wrongdoing. Or a court might look to whether the costs impose a hardship on third parties. Or maybe a court would conclude that
R.C. 5120.133 , which prevents a prison from disbursing an inmate‘s funds that, by statute, are “exempt from execution, garnishment, attachment, or sale,” adequately addresses a defendant‘s present inability to pay. In such a case, a court might choose to keep the costs order in place in the event the defendant can pay later.
Id. at ¶ 12. Taylor also explained the absence of explicit criteria in
It is a basic principle of our legal system that a trial court‘s decision must not be arbitrary and cannot be based on considerations wholly unrelated to the decision it is tasked with making. A trial court could not, for instance, deny a motion to waive costs based on the flip of a coin or the color of a defendant‘s hair or because it is Tuesday. Neither could a court adopt a standing order to reject all such motions, as that would be opting out of any sort of rational assessment altogether.
Id. at ¶ 16.
{¶39} In addition, this court has recognized thаt while “an explanation for a trial court‘s decision regarding a motion to waive payment of court costs may facilitate a more meaningful appellate review,”
{¶40} Stewart has not shown that the trial court abused its discretion by not waiving court costs on the ground that he lacks the present or future ability to pay them. The trial court made no finding regarding his ability to pay court costs. But again, “a trial court is not required to consider the defendant‘s ability to pay in assessing a motion to waive * * * court costs under
C. Summary
{¶41} For the foregoing reasons, we conclude the trial court did not err when it imposed the fines and court costs, and we overrule the second assignment of error.
V. THIRD ASSIGNMENT OF ERROR
{¶42} In the third assignment of error, Stewart contends that he received ineffective assistance of counsel because his trial counsel did not request a waiver of court costs. However, as we explained above, Stewart‘s trial counsel did move the trial court to waive court costs at the sentencing hearing. Therefore, the third assignment of error is based on an incorrect factual premise, and we overrule it.
{¶43} In the fourth assignment of error, Stewart contends that his sentence is contrary to law. He maintains that even though “trial courts have discretion to impose a prison sentence within the statutory range, they must still consider
A. Pertinent Statutes
{¶44} As previously noted,
The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand
the matter to the sentencing court for resentencing. The appellate court‘s standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court‘s findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶45}
(A) A court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing. The overriding purposes of felony sentencing are to protect the public from future crime by the offender and others, to punish the offender, and to promote the effective rehabilitation of the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources. To achieve those purposes, the sentencing court shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both.
(B) A sentence imposed for a felony shall be reasonably сalculated to achieve the three overriding purposes of felony sentencing set forth in division (A) of this section, commensurate with and not demeaning to the seriousness of the offender‘s conduct and its impact upon the victim, and consistent with sentences imposed for similar crimes committed by similar offenders.
***
{¶46}
Unless otherwise required by section 2929.13 or 2929.14 of the Revised Code, a court that imposes a sentence under this chapter upon an offender for a felony has discretion to determine the most effective way to comply with the purposes and principles of sentencing set forth in section 2929.11 of the Revised Code. In exercising that discretion, the court shall consider the factors set forth in divisions (B) and (C) of this section relating to the seriousness of the conduct, the factors provided in divisions (D) and (E) of this section relating to the likelihood of the offender‘s recidivism, and the
factors set forth in division (F) of this section pertaining to the offender‘s service in the armed forces of the United States and, in addition, may consider any other factors that are relevant to achieving those purposes and principles of sentencing.
{¶47} “Because both
B. Analysis
{¶48} We do not clearly and convincingly find that Stewart‘s sentence is contrary to law because the trial court violated
{¶49} Moreover, Stewart‘s suggestion that his sentence is contrary to law because it is not supported by the record under
VII. CONCLUSION
{¶51} Having overruled the assignments of error, we affirm the trial court‘s judgment.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT IS AFFIRMED and that appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Lawrence County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed 60 days upon the bail previously posted. The purpose of a continued stay is to allow appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the 60-day period, or the failure of the appellant to file a notice of appeal with the Supreme Court of Ohio in the 45-day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of 60 days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Abele, J. & Wilkin, J.: Concur in Judgment and Opinion.
For the Court
BY: _________________________
Michael D. Hess, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.