2006 Ohio 3449 | Ohio Ct. App. | 2006
{¶ 2} The events giving rise to appellant's charges began on January 27, 2005, when Debra Rouse ("Rouse"), the victim, received a telephone call from Danny Lowe ("Lowe"), a friend that lived in her trailer park. Lowe indicated that some friends were at his trailer and that they needed a fourth person to play cards. Appellant was one of the persons at Lowe's trailer. Appellant and Rouse knew each other through Lowe, as they had met a few weeks prior to this incident. Appellant had been to Rouse's trailer before, and the two had been intimate on a prior occasion.
{¶ 3} Rouse went to Lowe's to play cards, and she testified that she drank a beer and a half while she was there. Rouse began feeling uncomfortable around appellant and decided to leave. Despite insisting that she could walk home herself, appellant accompanied her. According to Rouse, when they got to her door, she told appellant that he could go back to Lowe's, but appellant remained. When Rouse unlocked the door, appellant pulled the door open, pushed Rouse through the hallway, and began jerking her clothes off. Rouse testified that she was crying and telling appellant, "no don't." (Tr., at 85.) Rouse described that appellant held a knife to her and told her that he wanted "some" and would kill her if he did not get "some." (Id.) After throwing Rouse to the ground, appellant put his knee in her stomach and hit her repeatedly in her mouth, eye and face. Appellant began having vaginal intercourse, but was having a difficult time. Therefore, he grabbed Rouse by her hair and drug her down the hall to her bedroom, and went into the bathroom to get some lotion. While appellant went into the bathroom, Rouse dialed 911, but hung up when appellant came out of the bathroom.
{¶ 4} Rouse testified that appellant again forcefully engaged in vaginal intercourse, this time successfully. A 911 operator called back during this time and appellant picked up the telephone and then quickly hung up without saying anything. Shortly thereafter, Rouse heard the police knock on the door. Appellant held his hands over Rouse's mouth so that she was unable to say anything. Appellant finally got up and Rouse ran to the door and opened it, naked and appearing badly beaten.
{¶ 5} According to the police officers, from the Columbus Police Department, that were at the scene, they arrived at Rouse's residence after being dispatched there on a report of a 911 hang-up call. The radio room had called the number back, and instructed the officers that someone answered the telephone, and then hung up without saying anything. When the officers arrived, they knocked on the door, but no one answered. As the officers began to walk away from the front door to look around the residence, they heard a muffled cry for help. At that point, the officers began knocking and yelling that they were the police. There was still no response, so the officers called for help from the fire department so that they could pry open the door. Officer Waugh began walking around the residence, when he heard a second cry for help and another male voice, which prompted him to call for additional police units. Officer Waugh saw appellant through a window, and although he could not see below appellant's waist, Officer Waugh observed appellant walking through the trailer without a shirt.
{¶ 6} The officers' testimony established that when Rouse finally opened the door, she was naked and appeared frightened. Rouse's lips and eyes were swollen, one eye was completely shut, and there was sweat and dried blood on her face. The officers entered the residence and found appellant hurriedly trying to pull up his pants. Appellant was arrested and Rouse was transported to the hospital.
{¶ 7} At the hospital, Theresa Colbert ("Colbert"), a nurse employed at Grant Hospital, examined Rouse and noted a total of 18 injuries to Rouse, appearing on her face, head and neck area, as well as her abdomen, knee, shin, and elbow. At the scene, police recovered boxer shorts and a partially opened knife in the living room. Police also recovered two lotion bottles, one on top of the refrigerator, and one on the nightstand in Rouse's bedroom. The fingerprints on the bottle found on the nightstand matched that of appellant, and the DNA in the saliva on Rouse's neck matched appellant's.
{¶ 8} Appellant was indicted on February 7, 2005, and charged with one count of aggravated burglary, in violation of R.C.
First Assignment of Error:
The trial court erred in finding Jack J. Thacker to be a violent sexual predator.
Second Assignment of Error:
The trial court erred in giving consecutive sentences to Jack J. Thacker.
Third Assignment of Error:
The convictions were against the manifest weight of the evidence.
Fourth Assignment of Error:
Jack J. Thacker was not provided effective assistance of counsel as required by the
{¶ 9} In his first assignment of error, appellant contends the trial court erred in finding him to be a violent sexual predator. According to R.C.
{¶ 10} In his second assignment of error, appellant argues that the trial court erred in giving consecutive sentences in violation of jury principles afforded by the
{¶ 11} In his third assignment of error, appellant contends that his convictions are against the manifest weight of the evidence. Appellant does not challenge the sufficiency of the evidence or assert that the state failed to produce evidence as to any element of the offenses of which he was convicted. Appellant's argument contests the credibility of Rouse's testimony because Rouse could not recall the amount of time that elapsed while she was with appellant. Because of her difficulty in recalling what time she left Lowe's trailer and because there was testimony about Rouse being highly intoxicated at the time, appellant argues that the evidence does not support the charges of which he was convicted. Appellant also directs us to the fact that Rouse admitted that she and appellant had a previous sexual encounter, and that on this occasion on January 28, 2005, there was no bodily fluids or DNA that indicated that Rouse had been penetrated in any way.
{¶ 12} In determining whether a verdict is against the manifest weight of the evidence, the appellate court acts as a "thirteenth juror" and, after "reviewing the entire record, 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." State v.Tompkins (1997),
{¶ 13} A defendant is not entitled to a reversal on manifest weight grounds merely because inconsistent evidence was presented at trial. State v. Raver, Franklin App. No. 02AP-604, 2003-Ohio-958, at ¶ 21. The determination of weight and credibility of the evidence is for the trier of fact. State v.DeHass (1967),
{¶ 14} Rouse testified that she left Lowe's trailer with appellant at around midnight. However, the call to 911 did not occur until after 8:30 am. Thus, appellant argues that because the events described by Rouse could not have taken place over an eight-hour period, Rouse's testimony is not credible. Appellant also directs us to the portion of Lowe's testimony in which he stated that Rouse was highly intoxicated when she left his trailer.
{¶ 15} Appellant concedes that given Rouse's injuries, something happened on January 28, 2005, but argues there is no other evidence, other than Rouse's testimony, to support the charges of which he was convicted. Since, according to appellant, Rouse's testimony is completely not credible, he argues that his convictions are against the manifest weight of the evidence. The victim provided the only account of what happened with appellant. Appellant focuses on Rouse's inability to recall the time when she got to Lowe's trailer and the time she left. While Rouse testified that she thought it may have been around midnight when she left Lowe's trailer, she repeatedly asserted, both on direct, and cross-examination, that she did not know what time it was when she left. Rouse testified that she normally does not look at the clock, nor does she wear a watch, and that she did not take note of the time when she left Lowe's. Rouse did, however, state that she left Lowe's when the card game broke up. When asked what broke up the card game, Rouse replied that she started "getting all shaky" from appellant and that the other guys had gotten up and gone to lie down. (Tr., at 83.)
{¶ 16} Lowe, the only witness called by the defense, testified that Rouse arrived at his trailer after one in the morning. Lowe described that appellant was teaching Rouse how to play a card game called "Tonk," when at about "5:30 to quarter to six," Lowe decided to go to bed. (Tr., at 217.) Lowe testified that Rouse left at that time.
{¶ 17} While there is an inconsistency with respect to the time that Rouse left Lowe's trailer, Rouse and Lowe are consistent in that Rouse left when Lowe decided to go to bed, which according to Lowe was approximately 5:30 to 5:45 in the morning. Inconsistencies in the testimony do not render a verdict against the manifest weight of the evidence, but are for the jury to resolve or discount accordingly. DeHass, supra. Further, the fact that Rouse was unable to recall what time it was when she left Lowe's trailer does not render all of her testimony incredulous. While an issue regarding her credibility was raised, the jury was properly instructed to weigh and evaluate the credibility of the witnesses. After deliberating, the jury resolved the issue in appellee's favor.
{¶ 18} We reach this same conclusion with respect to appellant's contention regarding Rouse's alleged intoxication. Rouse testified that she consumed a beer and a half, while Lowe testified that Rouse was "drunk" and "stumbling" beginning around 4:30 in the morning. (Tr., at 218.) As this court has consistently held, the weight to be given to inconsistencies in any witnesses' testimony is a determination within the province of the trier of fact. The jury was free to believe, or disbelieve, any part of the witnesses' testimony, and a conviction is not against the manifest weight of the evidence merely because the jury believed the prosecution's testimony. SeeState v. Smith, Franklin App. No. 04AP-726, 2005-Ohio-1765. After reviewing the record, we find there was sufficient, competent, credible evidence to support appellant's convictions. We decline to substitute our judgment for that of the jury regarding the credibility of the witnesses or the weight to be given to their testimony.
{¶ 19} Accordingly, appellant's third assignment of error is overruled.
{¶ 20} In his fourth assignment of error, appellant argues that he was denied effective assistance of counsel as required by the
{¶ 21} "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result."Strickland v. Washington (1984),
{¶ 22} According to Strickland:
A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the
Id. at 687.
{¶ 23} Appellant argues that his trial counsel was ineffective because appellant did not testify at trial, and that although he professed his innocence to the court throughout the trial, he did not get the opportunity to do so in front of the jury. Appellee contends that appellant's arguments are pure speculation since there is nothing in the record to suggest how appellant would have testified.
{¶ 24} "Under Ohio law, a licensed attorney is presumed competent, and `effective assistance of counsel does not equate with a winning defense strategy,' nor do debatable trial tactics necessarily constitute a violation of defense counsel's duties."State v. Reeves, Franklin App. No. 05AP-158,
{¶ 25} As with many cases involving allegations of rape, it often comes down to the testimony of the victim. "When one is dealing with the credibility of a single witness upon whom the state relies to prove its case in a criminal matter, it is a legitimate trial tactic for a defendant to determine not to call witnesses." State v. Sandy (1982),
{¶ 26} Upon review of the record, we find that appellant has provided only speculative arguments regarding what his testimony may have been, as well as the mere possibility that the outcome of the trial would have been otherwise had he testified at trial. Such is not enough to overcome the strong presumption that defense counsel's failure to call him to testify was anything but sound trial strategy. Consequently, appellant has not established that his counsel's actions constituted ineffective assistance of trial counsel. Accordingly, appellant's fourth assignment of error is overruled.
{¶ 27} For the foregoing reasons, appellant's second, third, and fourth assignments of error are overruled, his first assignment of error is sustained, we reverse the trial court's judgment relating to the court's determination that appellant is a sexually violent predator, and we remand this matter to that court for a sexual predator determination.
Judgment affirmed in part; reversed in part; and causedremanded.
Klatt, P.J., and Brown, J., concur.
