STATE OF OHIO, PLAINTIFF-APPELLEE vs. KINYATAE WILLIAMS, DEFENDANT-APPELLANT
No. 105590
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
March 8, 2018
[Cite as State v. Williams, 2018-Ohio-845.]
BEFORE: E.A. Gallagher, A.J., E.T. Gallagher, J., and Boyle, J.
JOURNAL ENTRY AND OPINION; Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-16-609718-A
RELEASED AND JOURNALIZED: March 8, 2018
Myriam Miranda
P.O. Box 40222
Bay Village, Ohio 44140
ATTORNEYS FOR APPELLEE
Michael C. O‘Malley
Cuyahoga County Prosecutor
BY: Andrew F. Rogalski
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, A.J.:
{¶1} Defendant-appellant Kinyatae Williams appeals his convictions for rape, kidnapping and gross sexual imposition in the Cuyahoga County Court of Common Pleas. We affirm and remand for the issuance of a nunc pro tunc entry.
Facts and Procedural History
{¶2} Williams was charged with four counts of rape, two counts of kidnapping and two counts of gross sexual imposition. The case proceeded to a bench trial on February 17, 2017. Prior to trial the state dismissed two counts of rape, one count of kidnapping and one count of gross sexual imposition prior to trial.1 At trial, the following facts were adduced.
{¶3} C.B. and her seven-year old daughter, A.J., lived in Garfield Heights from August 2014 until July 2015. A.J.‘s date of birth is December 30, 2009. C.B. met Williams at a gas
{¶4} A.J. testified that during one of the mornings that Williams was staying at the home she accidently woke Williams up when she intended to rouse her mother. A.J. testified Williams pulled his pants down in the kitchen of the home and put her on a shelf. According to A.J., Williams turned her around, put his hands in her pants and touched her “behind.” He then put her down, pulled his pants down and put his private part in her mouth causing her to choke. A.J. described Williams’ “private part” as “long and yucky” and identified it on a diagram by circling the groin. A.J. testified that the incident ended when she heard her mother waking up. C.B. testified that she did not see any inappropriate sexual interaction between Williams and A.J. but that she did witness an odd exchange between the two when she saw A.J. with her hand over her mouth. When she asked what was wrong, Williams told her it was “nothing.”
{¶5} C.B. testified that she had no further in-person contact with Williams after March 2015, and that A.J. told her about the incident in August or September 2015 after A.J. saw a picture of Williams on C.B.‘s phone. C.B. did not report the incident to authorities. C.B. testified that she began noticing changes in A.J.‘s behavior around the same time. A.J. began throwing tantrums, digging into her skin, pulling out pieces of her hair, screaming and kicking. A.J.‘s kindergarten teacher referred her to Emma Bogard, a social worker with Bellefaire JCB. Bogard spoke to C.B. and later asked A.J. what had happened. A.J. told Bogard that Williams had put “the thing that he pees with” in her mouth. She then diagnosed A.J. with post-traumatic stress disorder.
{¶7} At the conclusion of the state‘s case, Williams’ attorney moved to dismiss all counts pursuant to
{¶8} The trial court found the rape and kidnapping counts to be allied offenses and merged those counts for sentencing. The state elected to proceed to sentencing on the rape count. The trial court imposed a sentence of life without parole pursuant to
Law and Analysis
I. Motion to Exclude A.J.‘s Testimony
{¶10}
“(1) the child‘s ability to receive accurate impressions of fact or to observe acts about which he or she will testify, (2) the child‘s ability to recollect those impressions or observations, (3) the child‘s ability to communicate what was observed, (4) the child‘s understanding of truth and falsity and (5) the child‘s appreciation of his or her responsibility to be truthful.”
Id., quoting State v. Frazier, 61 Ohio St.3d 247, 251, 574 N.E.2d 483 (1991).
{¶11} The determination of a child‘s competence to testify is within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion. Maxwell at ¶ 100.
{¶12} In this instance, Williams challenges only the fifth element: A.J.‘s appreciation of her responsibility to be truthful. The record reflects that during a competency hearing prior to trial A.J. demonstrated that she understood the difference between telling the truth and lying. A.J. understood that telling the truth is a good thing and lying is a bad thing. She understood that her job in court was to tell the truth and she explained that if she lied at school she would get in trouble. In State v. Marcinick, 8th Dist. Cuyahoga No. 89736, 2008-Ohio-3553, this court found a child‘s appreciation for his responsibility to tell the truth had been sufficiently demonstrated under nearly identical testimony. Id. at ¶ 40. We find no abuse of discretion here.
II. Speedy Trial
{¶14} In his second assignment of error, Williams argues that the trial court erred in denying his motion to dismiss the indictment against him due to a constitutional speedy trial violation. Williams does not raise statutory speedy trial rights under
{¶15} Our review of a challenge to a constitutional speedy trial violation often raises a mixed question of law and fact. State v. Barnes, 8th Dist. Cuyahoga No. 90847, 2008-Ohio-5472, ¶ 19. We apply a de novo review to the legal issues, but afford great deference to any factual findings made by the trial court. Id.
{¶16} Whether a defendant‘s constitutional right to a speedy trial has been violated is determined by applying the balancing test set forth by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 530-533, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The factors to be considered include: (1) the length of the delay; (2) the reason for the delay; (3) the defendant‘s assertion of his speedy trial right; and (4) prejudice to the defendant. State v. Castro, 2014-Ohio-2398, 13 N.E.3d 720, ¶ 22 (8th Dist.), citing Barker at 530. A defendant must meet the “threshold requirement” of a “presumptively prejudicial” delay in order to trigger a Barker analysis. State v. Shepherd, 8th Dist. Cuyahoga No. 97962, 2012-Ohio-5415, ¶ 31, citing State v. Duncan, 8th Dist. Cuyahoga No. 97208, 2012-Ohio-3683, ¶ 8. “Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.” Duncan at ¶ 7, quoting Barker at 530-531. Courts have generally held that “a delay
{¶17} Here, Williams’ 258 days awaiting trial fail to meet the threshold showing of a presumptively prejudicial delay. Williams’ argument that we should “triple count” his days awaiting trial by incorporating portions of Ohio‘s statutory speedy trial provisions into our analysis is without merit because this court has previously held that the statutory time requirements of
{¶18} Williams’ second assignment of error is overruled.
III. Sentencing
{¶19} In his third assignment of error, Williams argues that the trial court erred in sentencing him to life without parole pursuant to
{¶20} The record reflects that the parties appeared for the announcement of the verdict on March 6, 2017. In regards to the first count the trial court stated:
Count 1, rape, the felony of the first degree, guilty. Repeat violent offender specification was shown by the journal entry provided by the State and the notice of prior conviction.
And for clarity sake, he was found guilty in Count 1 of all specifications other than the sexually violent predator specification which had to be tried and all the furthermore and all the allegations within the indictment.
{¶22} Williams did not object to the court‘s clarification so we review for plain error. Plain errors are obvious defects in trial proceedings that affect “substantial rights,” and “although they were not brought to the attention of the court,” they may be raised on appeal.
{¶23} We find no plain error in this instance. The trial court clarified that its guilty finding included the relevant furthermore clauses before proceeding to the sexually violent predator hearing. Williams has offered no argument to establish how the clarification affected his substantial rights. Williams does correctly note that the trial court‘s final journal entry failed to incorporate the disposition of the furthermore clauses. However, any error pertaining to the omissions can be remedied by a nunc pro tunc entry upon remand. See, e.g., State v. Ferrell, 8th Dist. Cuyahoga No. 92573, 2010-Ohio-1201, ¶ 77.
{¶24} Williams’ third assignment of error is overruled.
IV. Sufficiency
{¶26} A
{¶27} A challenge to the sufficiency of the evidence supporting a conviction requires a determination of whether the state met its burden of production. State v. Hunter, 8th Dist. Cuyahoga No. 86048, 2006-Ohio-20, ¶ 41. When reviewing sufficiency of the evidence, an appellate court must determine “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. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. In a sufficiency inquiry, an appellate court does not assess whether the state‘s evidence is to be believed but whether, if believed, the evidence admitted at trial supported the conviction. State v. Starks, 8th Dist. Cuyahoga No. 91682, 2009-Ohio-3375, ¶ 25; Jenks at paragraph two of the syllabus.
{¶28} Williams argues that the state failed to present sufficient evidence to support his convictions for rape, kidnapping and two counts of GSI.
{¶29} Williams was convicted of rape in violation of
{¶30} We need not address appellant‘s guilty finding as to kidnapping because that offense merged with his rape offense. See State v. Franks, 8th Dist. Cuyahoga No. 103682, 2016-Ohio-5241, ¶ 18 (explaining that any sufficiency error as to merged counts would be harmless error); State v. Ramos, 8th Dist. Cuyahoga No. 103596, 2016-Ohio-7685, ¶ 14 (holding that when counts in an indictment are allied offenses, and there is sufficient evidence to support the offense on which the state elects to have the defendant sentenced, the appellate court need not consider the sufficiency of the evidence on the count that is subject to merger because any error would be harmless).
{¶31} As to Williams’ gross sexual imposition convictions, his sole argument is that the state failed to present sufficient evidence of a second instance of sexual contact to support two counts of gross sexual imposition in violation of
{¶32} We find no merit to Williams’ sufficiency challenge.
{¶33} Williams’ fourth assignment of error is overruled.
V. Sexually Violent Predator Specifications
{¶34} In his fifth assignment of error, Williams argues that the trial court erred in relying in part on his 2009 conviction for rape of a minor less than thirteen years of age in violation of
- The person has been convicted two or more times, in separate criminal actions, of a sexually oriented offense or a child-victim oriented offense. For purposes of this division, convictions that result from or are connected with the same act or result from offenses committed at the same time are one conviction, and a conviction set aside pursuant to law is not a conviction.
- The person has a documented history from childhood, into the juvenile developmental years, that exhibits sexually deviant behavior.
- Available information or evidence suggests that the person chronically commits offenses with a sexual motivation.
- The person has committed one or more offenses in which the person has tortured or engaged in ritualistic acts with one or more victims.
- The person has committed one or more offenses in which one or more victims were physically harmed to the degree that the particular victim‘s life was in jeopardy.
- Any other relevant evidence.
{¶36} Williams fails to cite any authority that bars a trial court from considering a prior felony rape conviction committed by a minor as a relevant factor in the
{¶37} The record reflects that the present offense was Williams’ second rape of a child under the age of 13. We find no merit to Williams’ argument that the trial court improperly considered information that the statute deemed relevant.
{¶38} Williams’ fifth assignment of error is overruled.
VI. Costs
{¶39} In his sixth assignment of error, Williams argues that the trial court erred by ordering him to pay court costs in its sentencing journal entry that it did not impose at the sentencing hearing. The Ohio Supreme Court recently clarified in State v. Beasley, Slip Opinion No. 2018-Ohio-493, that a remand for correction is unnecessary under such circumstances because, pursuant to
{¶40} Williams’ sixth assignment of error is overruled.
{¶41} The judgment of the trial court is affirmed.
{¶42} Case remanded to allow for the trial court to issue a nunc pro tunc entry incorporating the disposition of the furthermore clauses consistent with State v. Ferrell, 8th Dist. Cuyahoga No. 92573, 2010-Ohio-1201, ¶ 77.
It is ordered that appellant recover from appellee the costs herein taxed.
The court finds that 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.
EILEEN A. GALLAGHER, ADMINISTRATIVE JUDGE
EILEEN T. GALLAGHER, J., and MARY J. BOYLE, J., CONCUR