STATE OF OHIO, Plaintiff-Appellee, vs. SHAWN A. WYCUFF, Defendant-Appellant.
Case No. 19CA28
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PICKAWAY COUNTY
2020
2020-Ohio-5320
Smith, P.J.
DECISION AND JUDGMENT ENTRY
APPEARANCES:
Evan Wagner, Evan N. Wagner at Law, LLC, Columbus, Ohio, for Appellant.
Judy C. Wolford, Pickaway County Prosecutor, and Heather MJ Carter, Assistant Pickaway County Prosecutor, Circleville, Ohio, for Appellee.
Smith, P.J.
{¶1} This is an appeal from a Circleville Municipal Court judgment of conviction and entry of sentence. Appellant, Shawn Wycuff, was found guilty by a jury of one count of sexual imposition, a third-degree misdemeanor in violation of
{¶2} With respect to Wycuff’s second assignment of error, because Wycuff’s
FACTS
{¶3} Shawn Wycuff, Appellant herein, was charged with one count of sexual imposition, a third-degree misdemeanor in violation of
{¶4} It appears from the record that the Circleville Director of Law, Gary Kenworthy, was initially handling the prosecution of the matter. His name appears on several praecipes for subpoenas that were issued to various trial witnesses.
{¶5} The case was tried before a jury and no objection was made to the assistant county prosecutor’s participation in the trial. The State presented several trial witnesses, including the victim, the victim’s aunt, the victim’s mother’s boyfriend’s sister (who the victim had resided with for a short time), and Detective Daniel Maher from the Circleville Police Department, who is also a special deputy with the U.S. Marshal Service and task force officer for the Franklin County Internet Crimes Against Children Task Force. The State also introduced several exhibits demonstrating Wycuff had been communicating with the victim in the
{¶10} The jury found Appellant guilty as charged. Defense counsel did not renew the motion for acquittal and the trial court did not expressly rule on the motion before imposing sentence and concluding the proceedings. Wycuff subsequently filed his timely appeal, setting forth two assignments of error for our review.
ASSIGNMENTS OF ERROR
- “THE APPELLANT’S CONVICTION IS VOID AB INITIO BECAUSE THE PROSECUTING ATTORNEY IN THE MATTER SUB JUDICE LACKED STATUTORY AUTHORITY TO TRY THE APPELLANT FOR THE CRIME CHARGED.”
- “THE TRIAL COURT COMMITTED PLAIN ERROR BY DEFERRING JUDGMENT ON THE APPELLANT’S
CRIM.R. 29 MOTION AT THE CLOSE OF THE STATE’S CASE-IN-CHIEF.”
ASSIGNMENT OF ERROR I
{¶11} In his first assignment of error, Wycuff contends that his conviction is void ab initio because the prosecuting attorney lacked statutory authority to try him
{¶12} Wycuff argues that the specific issue to be decided in this case is “whether a county prosecuting attorney may prosecute a misdemeanor charge in municipal court.” Wycuff argues that “a county prosecutor trying a misdemeanor case in municipal court is more akin to a lack of jurisdiction over the particular case at bar because the county prosecutor was want of statutory authority to try the action in the first instance.” Both parties set forth
{¶13} With regard to Wycuff’s jurisdictional analogy, we note that he was charged and convicted of sexual imposition, a third-degree misdemeanor in violation of
{¶14}
Except as provided in divisions (B) and (D) of this section, the village solicitor, city director of law, or similar chief legal officer for each municipal corporation within the territory of a municipal court shall prosecute all cases brought before the municipal court for criminal offenses occurring within the municipal corporation for which that person is the solicitor, director of law, or similar chief legal officer. Except as provided in division (B) of this section, the village solicitor, city director of law, or similar chief legal officer of the municipal corporation in which a municipal court is located shall prosecute all criminal cases brought before the court arising in the unincorporated areas within the territory of the municipal court.
enter into an agreement with any municipal corporation in the county in which the prosecuting attorney serves pursuant to which the prosecuting attorney prosecutes all criminal cases brought before the municipal court that has territorial jurisdiction over that municipal corporation for criminal offenses occurring within the municipal corporation.
Section (D) does not elaborate on what type of agreement would be required in order for a county prosecuting attorney to prosecute criminal offenses brought in the municipal court. Thus, based upon a review of
{¶15} However, this Court previously considered
{¶16} Although Quillen is factually distinguishable from the case sub judice and the legal question presented is not exactly identical, we find the reasoning contained therein is still persuasive. First, the State here represents that all parties agreed to the county prosecutor’s involvement in the case during the final pre-trial hearing and jury trial. Although there is nothing actually in the record to confirm this, there is likewise an absence of any objection by the defense. Thus, it can be inferred that the defense made no objection to the county prosecutor’s participation. Accordingly, we conclude Wycuff waived any error under
{¶17} Second, we are mindful that “[i]t is a well-established rule that ‘an appellate court will not consider any error which counsel for a party complaining of the trial court‘s judgment could have called but did not call to the trial court‘s attention at a time such error could have been avoided or corrected by the trial court.‘” State v. Owens, 2016-Ohio-176, 57 N.E.3d 345, ¶ 50, quoting State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 15, quoting
{¶18} Here, Appellant was convicted of one count of sexual imposition in violation of
(A) No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more other persons to have sexual contact when any of the following applies:
(1) The offender knows that the sexual contact is offensive to the other person, or one of the other persons, or is reckless in that regard.
{¶19} The victim testified that she fell asleep alone in Wycuff’s bed and awoke to him lying in bed behind her with his hand on her inner thigh, close to her vagina. She testified that when she awoke and realized what was happening, she got up and went to the couch in the other room. After the incident occurred, Wycuff began sending Facebook messages to the victim, one of which stated as follows: “U no how bad I wanted to kiss u that night but didn’t wanna fill rejected lime usual.” [sic]. Additional messages sent by Wycuff asked the victim to spend the night with him and to lie to her aunt about where she would be staying. We believe the evidence introduced by the State through the victim’s testimony and the Facebook messages satisfied the elements of the offense charged. As such, we
{¶20} Based on the foregoing, we cannot conclude Wycuff has demonstrated plain error occurred as a result of his prosecution being handled by the county prosecutor rather than the city law director. Accordingly, we find no merit to the arguments raised under his first assignment of error and it is overruled.
ASSIGNMENT OF ERROR II
{¶21} In his second assignment of error, Wycuff contends that the trial court committed plain error by deferring judgment on his
{¶22}
(A) Motion for Judgment of Acquittal. The court on motion of a defendant or on its own motion, after the evidence on either side is
closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. The court may not reserve ruling on a motion for judgment of acquittal made at the close of the state’s case. (B) Reservation of Decision on Motion. If a motion for a judgment of acquittal is made at the close of all the evidence, the court may reserve decision on the motion, submit the case to the jury and decide the motion either before the jury returns a verdict, or after it returns a verdict of guilty, or after it is discharged without having returned a verdict.
Thus, while a motion for acquittal that is made at the close of the State’s case-in-chief must be ruled on immediately, according to the plain language of the statute a trial court may reserve decision on a motion for acquittal made at the close of all of the evidence.
{¶23} Although Wycuff argues on appeal that his motion for acquittal was made at the close of the State’s case-in-chief, the trial transcript reveals otherwise. For instance, the following exchange occurred on the record after the State presented its last witness:
MS. CARTER: Your Honor, the State would move to enter exhibits and thereafter rest.
THE COURT: I currently have those as seven, would that be correct?
MS. CARTER: Yes, Your Honor.
THE COURT: Very good. Ms. Janes, any – any objection on the introduction of those seven?
***
MS. JANES: Okay. That’s fine. [after it was agreed Exhibit 7 would not be entered into evidence.]
***
THE COURT: Ms. - Ms. Janes, at this point would you like to call any witnesses?
MS. JANES: No, Your Honor.
THE COURT: Okay. Very good. That having been done, do we want to proceed to argument or would you like to take a break over lunch?
MS. CARTER: Can we just have a quick recess, Your Honor?
MS. JANES: And –
THE COURT: Okay. We’re gonna take a break at this point for lunch from 11:30 to, say, 12:30.
MS. CARTER: Oh, I didn’t realize –
THE COURT: Come back at 12:30. Will that work?
MS. CARTER: Yes, that’s fine.
MS. JANES: Your Honor, I would also like to make a Rule 29 motion once the jury’s --
THE COURT: Okay. We’ll do that outside – yeah.
***
THE COURT: Back on the record here. The jury is no longer with us. At the close of the State’s case. Defendant indicated a desire to make a motion to Rule 29. Ms. Janes.
Thereafter, counsel for both sides made their arguments regarding the motion. In response, the trial court stated as follow:
THE COURT: Well, the Court – I will say that I understand the argument on Rule 29. It’s – its’s a close call. I tell you what I’m going to do is under 29B, I’m going to reserve a ruling on that motion pending the decision of the jury. I’ll reserve that under B and take a look at it at that point. So for that purposes [sic] right at this moment, I’m going to reserve ruling on that. I have the ability to do that based on the current
{¶24} Despite the fact that the trial court stated on the record that Wycuff indicated a desire to make a motion for acquittal at the close of the State’s case, the trial transcript indicates otherwise. The transcript clearly reveals that the motion was not made until after defense counsel informed the court she did not wish to present any witnesses. Thus, the motion was made at the close of all evidence and the trial court was permitted to reserve ruling on the motion, as expressly stated by the court. Further, once the jury returned a verdict of guilty, defense counsel did not renew the motion and trial court did not expressly rule on the motion. However, pending motions that are not ruled upon by the trial court are deemed denied. State v. Smith, 1st Dist. Hamilton Nos. C-180439, C-180604, 2019-Ohio-5350, ¶ 13, citing State v. Guenther, 9th Dist. Lorain No. 06CA008914, 2007-Ohio-681, ¶ 12 (“We presume by the trial court‘s silence that Appellant‘s motion *** was denied.“). See also Montgomery v. Montgomery, 4th Dist. Scioto Nos. 03CA2923, 03CA2925, 2004-Ohio-6926, ¶ 18 (“* * * we note that it is well-settled law that a motion not expressly ruled on is deemed impliedly overruled.“) (Citations omitted). Thus, we find no error in the trial court’s decision to reserve judgment on the motion for acquittal pursuant to
{¶25} However, our analysis does not end here. Wycuff also raises a challenge to the sufficiency of the evidence within this assignment of error, rather than raising the argument as a separate assignment of error. In Milton Banking Co. v. Dulaney, 4th Dist. Jackson No. 11CA1, 2012-Ohio-1494, fn. 1, this Court noted that an appellant’s brief must contain arguments “with respect to each assignment of error,” in accordance with
{¶26} We have already determined, under a plain error analysis, that Wycuff’s conviction for sexual imposition was supported by sufficient evidence. However, as explained above, plain error review employs a somewhat limited analysis. A claim of insufficient evidence, however, generally invokes a due process concern and raises the question whether the evidence is legally sufficient to support the verdict as a matter of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). Thus, when reviewing the sufficiency of the evidence, an appellate court’s inquiry primarily focuses upon the adequacy of the evidence, or whether the evidence, if believed, could reasonably support a finding of guilt beyond a reasonable doubt. Thompkins, syllabus. The standard of review is whether, after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. E.g., Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus (1991), superseded by constitutional amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668 (1997). Furthermore, a
{¶27} As such, when reviewing a sufficiency of the evidence claim, an appellate court must construe the evidence in a light most favorable to the prosecution. See State v. Hill, 75 Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996); State v. Grant, 67 Ohio St.3d 465, 477, 620 N.E.2d 50 (1993). A reviewing court will not overturn a conviction on a sufficiency of the evidence claim unless reasonable minds could not reach the conclusion that the trier of fact did. State v. Tibbetts, 92 Ohio St.3d 146, 162, 749 N.E.2d 226 (2001); State v. Treesh, 90 Ohio St.3d 460, 484, 739 N.E.2d 749 (2001). Here, after our review of the record, we believe the State presented sufficient evidence to prove the essential elements of the offense of sexual imposition beyond a reasonable doubt.
{¶28} As set forth above, sexual imposition is governed by
(A) No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more other persons to have sexual contact when any of the following applies:
(1) The offender knows that the sexual contact is offensive to the other person, or one of the other persons, or is reckless in that regard.
Furthermore,
{¶29} Additionally, although not specifically argued by Wycuff, we are
the corroborating evidence “need not be independently sufficient to convict the accused.” State v. Economo (1996), 76 Ohio St.3d 56, 1996-Ohio-426, 666 N.E.2d 225, syllabus. Rather, even “[s]light circumstances or evidence which tends to support the victim’s testimony is satisfactory.” Id. at syllabus. Corroborating evidence is not an element of the offense, but an ancillary evidential requirement that the trial court must decide. Id. at 60-62.
State v. Franklin, 4th Dist. Highland Nos. 05CA20, 05CA21, 2006-Ohio-6369, ¶ 23. In Franklin, we determined that the fact that a police report was made by the victim and her mother on the date in question, coupled with defense counsel’s stipulation that the victim was at the location in question on the date in question, sufficiently met the corroboration requirement. Franklin at ¶ 30. See also State v. Laferty, 4th Dist. Vinton No. 97CA517, 1999 WL 249720 (Apr. 21, 1999) (finding sufficient corroboration where other
{¶30} Here, there seems to be no real dispute that the victim was staying at Wycuff’s residence with her mother and her mother’s boyfriend for the weekend when this incident occurred. The victim’s aunt, who has temporary custody of the victim, further verified this fact when she testified at trial. Additionally, subsequent Facebook messages sent by Wycuff to A.M reference that she had been in his room and in his bed, which is where the incident reportedly occurred. Finally, A.M.’s aunt testified that when A.M. returned home after being at Wycuff’s for the weekend, her behavior was unusual in that she came in and went directly upstairs. We find that this evidence constitutes sufficient corroboration that Wycuff committed the crime of sexual imposition.
{¶31} Thus, after viewing the evidence in a light most favorable to the State, we find that any rational trier of fact could have found the essential elements of the crime of sexual imposition proven beyond a reasonable doubt. Therefore, we cannot conclude that the trial court erred in implicitly overruling Wycuff’s
{¶32} Accordingly, having found no merit in either of the assignments of
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Circleville Municipal 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 sixty 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 sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five 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 sixty 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. and Myers, V.J., concur in Judgment and Opinion.
For the Court,
Jason P. Smith
Presiding 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.