In re T.M. , 2017 Ohio 7233 ( 2017 )

[Cite as In re T.M., 2017-Ohio-7233.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
IN RE: T.M. C.A. No. 28491
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE No. DL 15-03-0370
DECISION AND JOURNAL ENTRY
Dated: August 16, 2017
CARR, Judge.
{¶1} Appellant T.M. appeals from the judgment of the Summit County Court of
Common Pleas, Juvenile Division, adjudicating him delinquent and entering a disposition. This
Court affirms.
I.
{¶2} On February 14, 2015, A.E., then 18 years old, was living at her grandmother’s
apartment. A.E.’s cousin had died shortly before the events at issue and a friend of A.E.’s was
staying with A.E. at the apartment to offer support and to help keep A.E. sober, as A.E. was a
heroin addict.
{¶3} A.E., who was anxious to use drugs again, got into an argument with the friend
who was staying with her so that the friend would leave; after which, the friend did leave. At the
time, A.E. also was communicating with T.M., who was then 16 years old, over Facebook. A.E.
had not met T.M. before but they had a lot of mutual friends. T.M. mentioned that he had “some
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Xanax and a bottle and wanted to come over[.]” T.M. also alluded to wanting to engage in sex
with A.E., but she told him that she was not interested and that she was a lesbian. Nonetheless,
T.M. inferred from the conversation that A.E. was willing to have sex with him.
{¶4} T.M. came to the apartment sometime late in the evening or early the next day.
The two “did a couple Xanax and [] took a couple shots.” After A.E. had made something for
T.M. to eat, a friend of T.M.’s, known as “Tom-Tom,” got in contact with T.M. and T.M. asked
if Tom-Tom could come over. Because A.E. had known Tom-Tom for a while, she felt
comfortable having him come over. When he arrived, another man was with him, who was very
drunk. The other man was so intoxicated that he went right to the bathroom, vomited, passed
out, and remained there for much of the night.
{¶5} After a while, A.E. became very tired from the Xanax and alcohol and so she
went into the bedroom and said she was going to sleep. T.M. followed her into the bedroom and
started “rubbing on [her] and touching [her] and trying to get [her] to do things[.]” But she “kept
saying no and kind of push[ed] him away[.]” T.M. then penetrated her vaginally. While T.M.
was still assaulting her, Tom-Tom came in the room and wanted to “get in on [it].” T.M. got
Tom-Tom out of the room, but shortly thereafter, he returned. Tom-Tom engaged in vaginal
intercourse with A.E. while T.M. forced her to perform fellatio on him. Tom-Tom was holding
her hair and T.M. was pushing her head down. A.E. asserted that it felt like her “body was
shutting down” and she “didn’t have any control over anything.”
{¶6} After T.M. and Tom-Tom left the room, A.E. sent her friend a message on her
phone stating that she needed her friend. A.E. was “just scared” and “didn’t know what to do.”
Then, Tom-Tom came in and asked to use her phone. The next thing A.E. remembered was
waking up with the man she didn’t know in bed next to her. Her phone and laptop were gone, as
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were T.M. and Tom-Tom. A.E. went to the nearby diner and asked to use a customer’s phone.
A.E. contacted her cousin, who contacted her mother. An employee of the diner overheard A.E.
crying and talking about being assaulted and so the employee called 911. Officers came to the
diner and A.E. was subsequently examined and a rape kit was collected. The DNA found in the
samples from the vaginal swabs and external genital swabs included profiles consistent with both
T.M.’s and Tom-Tom’s DNA profiles.
{¶7} While T.M. admitted that he took A.E.’s laptop and that Tom-Tom took her
phone, T.M. denied raping A.E. His version of events differed significantly from A.E.’s. T.M.
maintained that all of the sexual conduct was consensual.
{¶8} A police officer filed three complaints against T.M., alleging that he was a
delinquent child by reason of committing acts that were sufficient to establish the elements of
two counts of rape and one count of theft. Subsequently, four additional complaints were filed
which alleged T.M. was delinquent for committing acts that amounted to three counts of rape
(one alleging vaginal intercourse, one alleging anal intercourse, and one alleging oral sex) and
one count of theft. The original three counts were dismissed.
{¶9} The matter proceeded to a hearing before a magistrate, following which the
magistrate adjudicated T.M. delinquent of two counts of rape and one count of theft. The
remaining count of rape (concerning anal intercourse) was dismissed with prejudice. The trial
court entered judgment the same day. T.M. filed objections and supplemental objections to the
magistrate’s decision, along with the transcript of the hearing. The trial court overruled the
objections. Prior to disposition, T.M. filed a motion for a new trial based upon newly discovered
evidence. In that motion, T.M. alleged that Tom-Tom had been acquitted and that, because at
the time of T.M.’s trial, Tom-Tom was being charged in relation to the events of February 15,
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2015, Tom-Tom could not be called to testify at T.M.’s trial. Now, however, Tom-Tom would
be available to provide testimony. The trial court denied the motion for new trial and set the
matter for disposition.
{¶10} Following disposition, T.M. appealed; however, the appeal was dismissed for lack
of a final appealable order. Upon remand, the trial court again entered a disposition and T.M.
appealed from that entry, raising three assignments of error for our review, which will be
addressed out of sequence to facilitate our analysis.
II.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED IN ADJUDICATING THE JUVENILE
DELINQUENT OF TWO COUNTS OF RAPE.
{¶11} T.M. argues in his third assignment of error that the trial court erred in
adjudicating him delinquent of two counts of rape. Specifically, he asserts that there was
insufficient evidence of force.
{¶12} “When considering this issue, this Court applies the same standard of review as
that applied in an adult criminal context.” In re L.M., 9th Dist. Summit No. 25693, 2012-Ohio-
1025, ¶ 7.
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. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.
{¶13} T.M. challenges the trial court’s findings of delinquency based upon acts that
would constitute the crime of rape if committed by an adult. R.C. 2907.02(A)(2) provides that
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“[n]o person shall engage in sexual conduct with another when the offender purposely compels
the other person to submit by force or threat of force.” Sexual conduct “means 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.” R.C.
2907.01(A). Force “means any violence, compulsion, or constraint physically exerted by any
means upon or against a person or thing.” R.C. 2901.01(A)(1).
{¶14} “A defendant purposely compels his victim to submit by force or threat of force
when he ‘uses physical force against the victim, or creates the belief that physical force will be
used if the victim does not submit.’” State v. Gary, 9th Dist. Wayne No. 12CA0014, 2012-Ohio-
5813, ¶ 5, quoting State v. Schaim, 65 Ohio St.3d 51 (1992), paragraph one of the syllabus.
“Force or the threat of force ‘can be inferred from the circumstances surrounding the sexual
conduct.’” Gary at ¶ 5, quoting Schaim at 55.
{¶15} At trial, A.E. testified that, after she went into the bedroom and was lying down,
T.M. came in and began touching and rubbing her and “trying to get [her] to do things with
him[.]” She “kept saying no and kind of pushing him away[.]” She just “kept telling him, ‘No,
I’m not doing it. I’m going to sleep, no.’” She testified that she did not know what to do, “felt
like [she] had no control over anything.” Nonetheless, T.M. proceeded to engage in vaginal
intercourse with her.
{¶16} Later, when Tom-Tom came in, Tom-Tom held A.E.’s hair and T.M. told her to
“suck [his] dick.” A.E. averred that “they were kind of like pushing [her] and pushing [her] head
down and stuff because [she wouldn’t] do it.” A.E. indicated that they told her to get on her
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knees. A.E. testified that she “had no idea what to even do” as she “never really had sex with a
guy[.]” T.M. told her that that was okay, he would teach her. Thereafter, A.E. performed
fellatio on T.M. while Tom-Tom was having vaginal intercourse with her. A.E. indicated that
they also attempted to penetrate her anally. A.E. testified that she did not want to engage in any
sexual conduct with T.M. or Tom-Tom that night.
{¶17} After T.M. and Tom-Tom left the room, A.E. sent her friend a message on her
phone stating that she needed her friend. A.E. was “just scared” and “didn’t know what to do[]”
because she “was in a house full of three guys the only girl.” A.E. believed that T.M. or Tom-
Tom deleted the message to her friend after they took her phone as that message was deleted and
several nude photos were sent out to people from her phone.
{¶18} Additional information was contained in A.E.’s medical records, which were
admitted into evidence, and included the narrative statement that A.E. provided to the nurse that
examined her. In that statement, A.E. relayed that after she told T.M., “no,” he pulled her hair,
removed her pajama pants and underwear, and pulled her on top of him. A.E. told the nurse that
Tom-Tom walked in and that A.E. was afraid of them. A.E. stated that T.M. told her that “she
would let them both []get their nut off before she was done.” According to the narrative, “they
both came at her at the same time, [T.M.] penetrated her vagina [with] his penis * * * and Tom[-
]Tom forced her to ‘suck his dick’ and then they switched spots.” A.E. “‘freaked out’ when they
tried to penetrate her anus so they did not but held her down with their bodies until they were
both done.”
{¶19} While the details of the narrative do not precisely match the details of A.E.’s
testimony, such a discrepancy would go to issues of weight and credibility and not sufficiency.
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{¶20} Given the totality of the evidence admitted, and viewing it in a light most
favorable to the State, we conclude that sufficient evidence was presented whereby a trier of fact
could find beyond a reasonable doubt that T.M. compelled A.E. to submit to sexual conduct,
including vaginal intercourse and fellatio, via force or threat of force. A.E. discussed being
afraid and being outnumbered. A.E. detailed that she told T.M. “no” on multiple occasions and
described pushing him away prior to T.M. engaging in vaginal intercourse with her. Further,
A.E. testified that T.M. and Tom-Tom pushed her head towards T.M.’s genitals so that she
would perform fellatio on him and that they did so because she would not do it. The narrative
contained in the medical records provides additional evidence of force and threat of force, which
included a statement by T.M. that A.E. “would let them both []get their nut off before she was
done[]” and evidence that T.M. and Tom-Tom used their body weight in order to get A.E. to
comply. Accordingly, T.M.’s adjudication of delinquency based upon two counts of rape was
based upon sufficient evidence. See State v. Miller, 9th Dist. Summit No. 27048, 2015-Ohio-
279, ¶ 39 (concluding there was sufficient evidence of force or threat of force when offender
threatened to punch victim, climbed on top of victim and engaged in vaginal intercourse while
she tried to resist him and told him to stop); State v. Ralston, 9th Dist. Lorain No. 08CA009384,
2008-Ohio-6347, ¶ 3, 9 (determining there was sufficient evidence of forcible rape when
defendant grabbed victim’s arms, told her to lie down, and then vaginally raped her despite the
victim telling him to stop and that he was hurting her).
{¶21} T.M.’s third assignment of error is overruled.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN DENYING THE JUVENILE’S MOTION FOR
NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE.
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{¶22} T.M. argues in his first assignment of error that the trial court erred in denying his
motion for a new trial. Specifically, T.M. maintains that he was entitled to a new trial based
upon the fact that Tom-Tom was acquitted and could now testify in T.M.’s trial. Thus, T.M.
argues that Tom-Tom’s testimony “would have tipped the weight of the evidence in the
defense’s favor[.]”
{¶23} A trial court’s decision ruling on a motion for new trial based upon newly
discovered evidence is reviewed for an abuse of discretion. See State v. Tolliver, 9th Dist. Lorain
No. 16CA010986, 2017-Ohio-4214, ¶ 18 (addressing a ruling made under Crim.R. 33); In re
S.S., 9th Dist. Wayne No. 04CA0032, 2004-Ohio-5371, ¶ 11-12 (addressing a ruling in a
permanent custody case made under Civ.R. 59); In re Shad, 1st Dist. Hamilton Nos. C-080965,
C-081174, 2009-Ohio-3611, ¶ 9 (applying an abuse of discretion standard to an appeal involving
a denial of a motion for new trial in a juvenile delinquency case). To warrant the granting of a
motion for a new trial based upon newly discovered evidence, the movant must show that the
evidence:
(1) discloses a strong probability that it will change the result if a new trial is
granted, (2) has been discovered since the trial, (3) is such as could not in the
exercise of due diligence have been discovered before the trial, (4) is material to
the issues, (5) is not merely cumulative to former evidence, and (6) does not
merely impeach or contradict the former evidence.
State v. Petro, 148 Ohio St. 505 (1947), syllabus; see also Tolliver at ¶ 18; In re S.S. at ¶ 11
(applying a nearly identical standard in a permanent custody case based upon a motion for new
trial filed pursuant to Civ.R. 59); In re Shad at ¶ 10 (applying the standard from Petro in an
appeal of the denial of a motion for new trial in a juvenile delinquency case).
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{¶24} Here, we cannot conclude the trial court abused its discretion in denying the
motion.1 First, there was no evidence in the record, aside from T.M.’s counsel’s assertion, that
Tom-Tom was in fact acquitted. Moreover, there was no evidence in the record addressing what
precisely Tom-Tom’s testimony would be. Further, T.M.’s counsel did not explain how this
evidence would meet the standard set forth above. There was no discussion demonstrating that
the evidence would not “merely impeach or contradict the former evidence.” See Petro at
syllabus. Further, absent knowing the content of Tom-Tom’s testimony, we fail to see how T.M.
could demonstrate that the evidence “discloses a strong probability that it [would] change the
result if a new trial [was] granted[.]” Id.{¶25} In light of the foregoing, T.M.’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
POST-TRIAL COUNSEL WAS INEFFECTIVE BECAUSE SHE FAILED TO
INVESTIGATE AND SECURE AN AFFIDAVIT FROM [TOM-TOM] IN
SUPPORT OF THE MOTION FOR NEW TRIAL.
{¶26} T.M. argues in his second assignment of error that his post-trial counsel was
ineffective for failing to secure an affidavit from Tom-Tom in support of the motion for new
trial.
{¶27} “This Court applies the same analysis to claims of ineffective assistance of
counsel for juveniles and adults: whether there was deficiency in the performance of counsel and
that, but for counsel’s errors, there is a reasonable possibility that the outcome of the proceeding
1
The record reflects that a hearing was scheduled on the motion for new trial. It is
unclear from the record whether a hearing took place as the hearing is not referenced in the entry
ruling on the motion. No transcript of the hearing appears in the record. See State v. Ricks, 9th
Dist. Medina No. 09CA0094-M, 2010-Ohio-4659, ¶ 16.
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would have been different.” In re D.R., 9th Dist. Lorain No. 11CA009970, 2011-Ohio-4462, ¶
4; see also In re R.T., 9th Dist. Lorain Nos. 05CA008728, 05CA08742, 2006-Ohio-1311, ¶ 26
(applying Strickland v. Washington, 466 U.S. 668 (1984), in the context of a juvenile
delinquency proceeding).
{¶28} The record in the instant matter does not disclose what testimony Tom-Tom
would have provided had counsel obtained an affidavit. Accordingly, we cannot discern whether
the failure of T.M.’s counsel to secure an affidavit to support the motion for a new trial
prejudiced T.M. as we cannot determine whether Tom-Tom’s testimony would have altered the
outcome of the trial. Instead, T.M.’s assertion on appeal is speculative. This Court has
previously concluded that “‘[s]peculation regarding the prejudicial effects of counsel’s
performance will not establish ineffective assistance of counsel.’” State v. Buzek, 9th Dist.
Medina No. 14CA0011-M, 2015-Ohio-4416, ¶ 7, quoting State v. Zupancic, 9th Dist. Wayne No.
12CA0065, 2013-Ohio-3072, ¶ 4.
{¶29} T.M.’s second assignment of error is overruled.
III.
{¶30} T.M.’s assignments of error are overruled. The judgment of the Summit County
Court of Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
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We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
HENSAL, P. J.
CALLAHAN, J.
CONCUR.
APPEARANCES:
CEDRIC B. COLVIN, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.