STATE OF OHIO v. DARREN L. WALKER
No. 95974
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
August 25, 2011
[Cite as State v. Walker, 2011-Ohio-4239.]
Sweeney, P.J., Jones, J., and S. Gallagher, J.
JOURNAL ENTRY AND OPINION; Case No. CR-536762
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-536762
ATTORNEY FOR APPELLANT
Britta M. Barthol, Esq. P.O. Box 218 Northfield, Ohio 44067
ATTORNEYS FOR APPELLEE
William D. Mason, Esq. Cuyahoga County Prosecutor By: Mark J. Mahoney, Esq. Asst. County Prosecutor Eighth Floor, Justice Center 1200 Ontario Street Cleveland, Ohio 44113
JAMES J. SWEENEY, P.J.:
{¶ 1} Defendant-appellant, Darren Walker, appeals following his convictions for two counts of rape, two counts of kidnapping, and gross sexual imposition. Defendant asserts that his conviction of rape was based on insufficient evidence and that all of his convictions were against the manifest weight of the evidence. Defendant further asserts that he was denied the effective assistance of counsel and maintains that the court erred
{¶ 2} At trial, the state presented multiple witnesses whose testimony is summarized below.
{¶ 3} In March and April of 2010, defendant was residing with Dorothy Hardges (“Hardges“) and several of her relatives, including her granddaughter “X.”1 Defendant had been married to Hardges‘s niece and, although they have since divorced, he maintained a close familial relationship with Hardges. By all accounts, defendant helped Hardges with household chores and maintenance. He cooked and cleaned and at times helped with the children who were residing in the home. Hardges had legal custody of X. Defendant has known all of Hardges‘s children for many years and has known X since she was born. At the time of trial, X was eleven years old.
{¶ 4} The testimony indicates that X has special education needs. Hardges said X is in the fifth grade but is functioning at a second grade level educationally.
{¶ 5} Hardges is diabetic and requires dialysis three times a week. On those days, Hardges‘s neighbor, Ms. Elliot, helped X get on the bus for school.
{¶ 7} Hardges asked defendant if he had been “messing with” X, which he denied. Hardges testified that she had noticed X was being mean towards defendant but never asked her why. Deasia told Hardges that she did not like defendant and the way he acted. Hardges indicated that defendant did not like when Deasia talked back to Hardges and was disrespectful and that defendant would speak to Deasia about it.
{¶ 8} Hardges continued to question X and had other adults question her in an effort to determine if X was being truthful. Hardges asked her son Brandon to speak with X. Then Hardges learned that X had previously told Ms. Elliot the same thing. Hardges told X‘s mother, Carmen, about the accusation and a family meeting took place to confront defendant before the police were contacted. Hardges was present at the meeting along with Mark, Deasia, their baby, Deasia‘s cousin, the cousin‘s brother, Brandon and
{¶ 9} Defendant continued to deny the allegations but when Hardges asked, “Was you high? Did you do this?” Defendant responded, “I don‘t know Auntie, if I did. If I did, I don‘t recall.” The police arrived after the fighting had ended and defendant was seated in a chair. One officer took X into another room and the other took defendant out of the house. The police read him his rights and arrested him.
{¶ 10} X spoke to an officer later and Hardges was interviewed by a social worker. Hardges took X to the hospital and put her in counseling with the Rape Crisis Center.
{¶ 11} Prior to X‘s testimony, the court inquired, “Is there any issue as to [X‘s] ability to testify?” The court asked defense counsel whether he challenged it or had any voir dire beforehand. Defense counsel responded, “I
{¶ 12} X testified as follows: She is eleven years old and lives in an apartment with her grandmother. She is in fifth grade and rides the bus to school. Ms. Elliot would help her get on the bus when Hardges was at dialysis. Defendant would also take care of X sometimes. Defendant would help Hardges around the house and cooked.
{¶ 13} X said she was in her room with her cousin when defendant came in and told her to lay on the bed. When she laid down on her back, defendant pulled her pants down to her knees and licked her “private part” with his tongue. Defendant told her not to tell anyone. Then he “put his private part in [her] butt.” She elaborated, that “there was a hole by my private part. He put it in there.” She left with her cousin and did not tell anyone about the incident that day. This happened in March of 2010. She remembers the day because prior to the incident someone had beaten her up.
{¶ 14} X said that later in April, she was in the kitchen drinking juice when defendant started licking her. He told her to come in her room and he
{¶ 15} During cross-examination, X testified that defendant stayed in her room while she would sleep on the couch. She has known defendant her whole life. X said the day she got in a fight, defendant only touched her butt. Then she said that sometimes she needs people to help her remember things. During re-direct X confirmed that she remembered defendant putting his tongue on her private and that he put his penis inside of her.
{¶ 17} Family members were very upset, very angry, threatening defendant and the police. Ryan contacted a sergeant and took defendant downtown and booked him. Ryan wrote the police report. He recalled seeing defendant at Charity Hospital later. He had not noticed any injuries when he booked defendant but defendant had injuries at the hospital. Ryan did not record any injuries on his report.
{¶ 18} Ms. Elliot, Brandon Hardges, Mark Hardges, and Deasia Pridgett also testified. They confirmed their presence at the family meeting and the events leading up to it. They all confirmed that defendant denied the accusations. Although Ms. Elliot did not notice any change in X‘s demeanor, other family members said they noticed her acting differently towards defendant.
{¶ 20} A pediatric nurse practitioner from University Hospital also testified. X is her patient and she examined her on April 30, 2010. State‘s Exhibit 1 is copy of the medical records. X reported that defendant touched her breasts and her vaginal area approximately one month prior to the examination. From the examination, the nurse could not determine whether a sexual assault had occurred.
{¶ 21} Defendant testified that he married Hardges‘s niece when he was eighteen years old. They have since divorced but he maintained a close relationship with Hardges. Defendant stated he has problems with drugs.
{¶ 22} Defendant has known X since she was born. X would give him an attitude and there was friction between them. Defendant denied X‘s allegations and said the things she testified to did not happen. Defendant denied ever touching X improperly.
{¶ 23} The trial court denied defendant‘s motions for acquittal.
{¶ 24} Prior to rendering its decision, the court noted that it had to decide the case based on the testimony of the witness and found “a few aspects of that testimony to be confusing and disturbing.” The court ultimately determined that X was credible and found defendant guilty.
{¶ 25} On October 8, 2010, the court imposed sentence as follows: the court determined that the victim was not released from a safe place
{¶ 26} “Assignment of Error I: The evidence was insufficient as a matter of law to support a finding beyond a reasonable doubt that Appellant was guilty of rape.”
{¶ 27} 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 beyond a reasonable doubt. 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. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541.
{¶ 29} “(A)(1) No person shall engage in sexual conduct with another who is not the spouse of the offender or who is the spouse of the offender but is living separate and apart from the offender, when any of the following applies:
{¶ 30} “* * *
{¶ 31} “(b) The other person is less than thirteen years of age, whether or not the offender knows the age of the other person.”
{¶ 32} “Sexual conduct” is defined as “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.”
{¶ 33} Defendant maintains that the evidence was insufficient to establish penetration on any date. However, penetration is not required to support a conviction of rape involving cunnilingus. See State v. Bailey (1992), 78 Ohio App.3d 394, 395, 604 N.E.2d 1366 (“the law requires no further activity to constitute cunnilingus beyond the placing of one‘s mouth
{¶ 34} “Assignment of Error II: The Appellant‘s convictions for kidnapping, rape and gross sexual imposition were against the manifest weight of the evidence.”
{¶ 35} To warrant reversal of a verdict under a manifest weight of the evidence claim, this 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 evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the judgment must be reversed and a new trial ordered. State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541.
{¶ 36} Reversal of defendant‘s convictions is not warranted under this standard.
{¶ 38} The record and testimony also reflect that Hardges did not immediately accept X‘s account, but instead made efforts to corroborate it before contacting the police. Likewise, the social worker interviewed X but
{¶ 39} This was a bench trial where the defense counsel effectively established that X had repeated her story many times. The defense questioned the veracity of X‘s account and suggested that her testimony was scripted and rehearsed. X‘s testimony, like that of other child victims, is somewhat confusing. However, she did repeatedly testify that defendant had licked her private part and put his private part in a hole near her butt. She recalled him touching her buttocks and also sucking her breasts. Her testimony was unclear as to when she reported the incident to others and the exact dates it had occurred. The trial court noted that X‘s testimony was confusing but ultimately resolved the conflicts in favor of her credibility.
{¶ 40} Considering the record as a whole, we cannot say that the trial court clearly lost its way by finding defendant guilty of the charges. Accordingly, his convictions were not against the manifest weight of the evidence and this assignment of error is overruled
{¶ 41} “Appellant was denied his right to effective assistance of counsel guaranteed by Article I, Section 10 of the Ohio Constitution and the Sixth and Fourteenth Amendment to the United States Constitution when trial counsel
{¶ 42} “To substantiate a claim of ineffective assistance of counsel, a defendant must demonstrate that (1) the performance of defense counsel was seriously flawed and deficient, and (2) the result of defendant‘s trial or legal proceeding would have been different had defense counsel provided proper representation.” Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Brooks (1986), 25 Ohio St.3d 144, 495 N.E.2d 407. In State v. Bradley, the Ohio Supreme Court truncated this standard, holding that reviewing courts need not examine counsel‘s performance if the defendant fails to prove the second prong of prejudicial effect. State v. Bradley (1989), 42 Ohio St.3d 136, 143, 538 N.E.2d 373. “The object of an ineffectiveness claim is not to grade counsel‘s performance.” Id. at 143.
{¶ 43} Defendant asserts his counsel was ineffective for failing to request a hearing as to X‘s competency to testify in this case.
{¶ 44} “Every person is competent to be a witness except:
{¶ 45} “(A) Those of unsound mind, and children under ten years of age, who appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly.”
{¶ 47} X‘s age was not a factor in determining her competency to testify pursuant to
{¶ 48}
{¶ 49} Defendant has not demonstrated that he was prejudiced by defense counsel‘s decision not to pursue a hearing as to X‘s competency to testify. Defendant has not established a reasonable probability that the outcome of the trial would have been different had there been a competency hearing prior to the bench trial. This assignment of error is overruled.
{¶ 50} “Assignment of Error IV: Appellant‘s convictions for rape and gross sexual imposition are allied offenses of similar import and the convictions must merge into a single conviction.”
{¶ 52} “In determining whether offenses are allied offenses of similar import under
{¶ 53} “If the multiple offenses can be committed by the same conduct, then the court must determine whether the offenses were committed by the same conduct, i.e., ‘a single act, committed with a single state of mind.’ Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, at ¶ 50 (Lanzinger, J., dissenting).
{¶ 54} “If the answer to both questions is yes, then the offenses are allied offenses of similar import and will be merged.
{¶ 55} “Conversely, if the court determines that the commission of one offense will never result in the commission of the other, or if the offenses are
{¶ 56} Defendant alleges his convictions for rape on or about March 14 to March 15, 2010 and gross sexual imposition were allied offenses pursuant to
Judgment affirmed.
It is ordered that appellee recover of appellant its 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 conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
JAMES J. SWEENEY, PRESIDING JUDGE
LARRY A. JONES, J., and
SEAN C. GALLAGHER, J., CONCUR