State v. Washington , 2022 Ohio 625 ( 2022 )

[Cite as State v. Washington, 2022-Ohio-625.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. Patricia A. Delaney, J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
:
-vs- :
: Case No. 2020 CA 0066
CHEKIAH WASHINGTON :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Richland County
Court of Common Pleas, Case No. 2020-
CR-0043
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 3, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GARY BISHOP DAVID N. PATTERSON
PROSECUTIG ATTORNEY P.O. Box 1423
BY: AMANDA WEBBR Willoughby, OH 44096
38 South Park Street, 2nd Fl.
Mansfield, OH 44902
Richland County, Case No. 2020 CA 0066 2
Gwin, P.J.
{¶1} Defendant-appellant Chekiah E. Washington, Jr. [“Washington”] appeals
his convictions and sentences after a jury trial in the Richland County Court of Common
Pleas.
Facts and Procedural History
{¶2} On January 13, 2020 the Richland County Grand Jury returned an
Indictment charging Washington as follows,
1. Rape [K.R.] Mar 17, 2015
2. Attempted Rape [K.R.] Mar 17, 2015
3. Kidnapping [K.R.] Mar 17, 2015
4. Attempted Rape [B.B.] July 26, 2018
5. Abduction [B.B.] July 26, 2018
6. Abduction [B.B.] July 26, 2019
7. Rape [M.H.] Sept 6, 2019
8. Kidnapping [M.H.] Sept. 6, 2019
9. Abduction [M.H.] Sept. 6, 2019
10. Assault [M.H.] Sept. 6, 2019
11. Public Indecency [M.B.] Sept. 8, 2019
12. Public Indecency [K.H.] Nov. 11, 2019
13. Rape [K.H.] Nov. 11, 2019
14. Rape [D.B.] Dec. 7, 2019
15. Attempted Rape [D.B.] Dec. 7, 2019
16. Kidnapping [D.B.] Dec. 7, 2019
Richland County, Case No. 2020 CA 0066 3
17. Abduction [D.B.] Dec. 7, 2019
18. Assault [D.B.] Dec. 7, 2019
March 17, 2015 – K.R.
{¶3} Washington knew K.R. from high school. The pair had sex at her home
prior to March 17, 2015. 2T. at 300.1 On March 17, 2015 K.R. went to Washington’s home
to hang out. Washington testified that K.R. had told him before she came over that she
did not want to have sex. 8T. at 1491. Upon arrival at his home, K.R. and Washington
went to his bedroom to watch a movie. Washington admitted that he pulled K.R.’s hair
back and began licking her neck. 8T. at 1491.
{¶4} K.R. testified that Washington pushed her down on the bed, took off her
pants, while she was telling him "no" and ''to like get his hands off [her]." 2T. at 277-278.
She further testified that Washington forcefully inserted his penis into her vagina. 2T. at
281-282. K.R. repeatedly told Washington to stop. 2T. at 278. K.R. began freaking out
and got down on the floor to find her clothes and her wallet. As she did, Washington went
to her and tried to shove his penis and his "balls" in her mouth. 2T. at 280. She refused
to open her mouth. Id. Washington testified that K.R. told him that she felt like she was
being raped. 8T. at 1495.
{¶5} K.R. reported this rape to the police and had a Sexual Assault Nurse
Examination [“SANE”].
1For clarity, the jury trial transcript will be referred to as, “__T.__,” signifying the volume and the page
number.
Richland County, Case No. 2020 CA 0066 4
{¶6} The case was originally submitted to the Richland County Prosecutor's
Office, but the Prosecutor's Office originally declined to prosecute on or about April
27, 2015. 2T.at 433-34.
July 26, 2018 – B.B.
{¶7} B.B. testified that she was friends with Washington in 2018 through her
roommate’s boyfriend. 3T. at 529. At some point, B.B. and Washington became
"friends with benefits,” friends engaging in a sexual relationship but not
boyfriend/girlfriend. 3T. at 532.
{¶8} On July 26, 2018, Washington and B.B. were in the midst of a consensual
sexual encounter when B.B.’s period begun. 3T. at 535. Washington became angry
that B.B. "got blood on him." Id. She wanted to stop; and, he wanted to continue. B.B.
told Washington “no” multiple times. Id. Washington asked B.B. to perform oral sex on
him, which she declined. 3T. at 540; 8T. at 1500. B.B. went into the bathroom to clean
up.
{¶9} Upon her return from the bathroom, B.B. testified that Washington said
she "was going to suck his dick." 3T. at 541. He pulled her down to the bottom of the
bed and, holding her by the hair, rubbed his penis on her face and cheek and lips,
trying to stick it in her mouth. Id. at 542. B.B. testified, "at one point it had slipped
between my lips, but I was clenching my jaw so that he couldn't get it in my mouth
and it would rub across my teeth." 3T. at 542. B.B. testified that she was hitting
Washington’s chest, trying to get him off of her.
{¶10} At one point Washington climbed off and got up to run away but he
grabbed her by the ponytail and pulled her back. 3T. at 543. B.B. was finally able to
Richland County, Case No. 2020 CA 0066 5
get out the door; however, Washington followed her down the hall, pinning her against
the wall by her neck, and chocking her. 3T. at 552.
{¶11} Washington testified that he stopped when she asked him to stop. 8T.
at 1500. Although he was disappointed that B.B. declined, he did not force B.B. to
perform oral sex on him. Id. Washington testified he called B.B., “[a] fat and nasty
ass bitch.” 8T. at 1500. Washington testified that B.B. became enraged after he
called her names. 8T. at 1501. Washington testified that B.B. charged him and
collided with him in the hallway. 8T. at 1501.
{¶12} B.B. reported this rape to the police and had a Sexual Assault Nurse
Examination [“SANE”]. B.B. admitted to having consensual sex with Washington
sometime after July 26, 2018. 3T. at 600-602.
September 6, 2019 – M.H.
{¶13} M.H. testified that she met Washington through Facebook. 6T. at 1159.
On September 6, 2019, Washington asked M.H. to be his girlfriend. They had been
"hanging out" for two weeks and the two had consensual sex within the two weeks prior
to September 6, 2019. Id. at 1165.
{¶14} On September 6, 2019 Washington and M.H. made plans to go to Motel 6.
The pair went grocery shopping, to dinner then to the motel. 6T. at 1159; 1163; 8T. at
1511. M.H.’s friend M.S. accompanied them to the movies. 6T. at 1165. Prior to the movie,
M.H. smoked “wax” a concentrated form of THC. 6T. at 1225; 8T. at 1513. M.H. admitted
that she had taken Xanax that day. 6T. at 1172. She further admitted that she did not
have a prescription for the drug. Id.
Richland County, Case No. 2020 CA 0066 6
{¶15} During the movie, Washington and M.H. engaged in consensual sex. 6T.
at 1165; 8T. at 1514. M.S. accompanied the pair back to the motel and hung out with the
pair for a while.
{¶16} Once M.S. left, Washington started touching M.H. and, when she said she
did not want to have sex at that time, he told her he was not going to take "no" for an
answer. 6T. at 1170. M.H. laughed because she thought Washington was joking.
Id. He pulled down her pants and "proceeded to get on, like go inside [her], like
sex.” 6T. at 1170. Eventually, M.H. was able to kick Washington off of her. She
pulled up her pants, grabbed her purse, ran out of the room, and locked herself in
the truck. 6 T. at 1170-71. She was naked from the waist up. Id. at 1177. She called
M.S. who came back to the motel. M.H. followed M.S. back to M.S.'s home, spoke to her
for a short time, and then drove to her own home. 6T. at 1270. A different friend took M.H.
to the hospital in Mansfield where a SANE examination was done.
{¶17} Washington testified that all the sex with M.H. was consensual. 8T. at 1518-
1520. Washington claimed that M.H. had an anxiety attack while they were engaged in
sex. Id. at 1520-22. Washington testified that M.H. ran out of the room to the truck. 8T. at
1522. When Washington went to her to ask if she was alright, M.H. told Washington that
he had hit her and raped her. 8T. at 1523. Washington denied that he had done either.
Id.
September 8, 2019 – M.B., Housekeeper, Motel 6
{¶18} M.B. was a housekeeper at the Motel 6 on September 8, 2019. She testified
that she was cleaning her first room of the day, working in the bathroom. When she came
out of the bathroom, a “guy” was standing in front of her. 6T. at 1123. The guy unzipped
Richland County, Case No. 2020 CA 0066 7
his fly, pulled out his penis and asked her if she wanted company. Id. M.B. was unable to
pick the person out of a photo lineup. Id. at 1126-1127. M.B. had described the perpetrator
as having shoulder length dreadlocks. Id. at 1129. M.B. did not identify Washington in
court as the man who had flashed her on September 8, 2019.
{¶19} At trial, Washington admitted exposing himself to the maid on September
8, 2019. 8T. at 1553.
November 11, 2019 – K.H.
{¶20} K.H. testified that she met Washington through her friend that was dating
him. In the morning of November 11, 2019, K.H. was awaken to Washington rubbing
his penis in her face. 5T. at 920. She got up off the mattress and ran to the bathroom,
disgusted. Id. Washington followed her into the shower, got undressed and
attempted to shower with K.H. 5T. at 920; 8T. at 1538. K.H. did not want Washington
in the shower so she got out. Id. As K.H. was attempting to get dressed, Washington,
grabbed the pants from K.H.’s hands and pushed her onto the bed. 5T. at 921.
Washington forced his penis inside K.H.’s vagina. Id. K.H. repeatedly told Washington
“no.” Id. at 922. Washington proceeded to masturbate and ejaculate on K.H. 5T. at
922; 8T. at 1538-1539.
{¶21} The next day, K.H. reported the incident to the police. She then went to
the hospital for a SANE kit on November 12, 2019.
December 7, 2019 – D.B.
{¶22} D.B. had an off-again, on-again relationship with Washington from
October, 2017 through 2019. 3T. at 624-625. D.B. testified that her relationship with
Washington was turbulent involving mental, physical and sexual abuse. 3T. at 631.
Richland County, Case No. 2020 CA 0066 8
In April 2019, D.B. filed a police report concerning Washington’s abuse. Id. at 371.
D.B. subsequently dropped the charges. Id. at 672.
{¶23} On December 7, 2019, Washington invited D.B. to his home to smoke
marijuana and drink. 3T. at 632. The couple had broken up before this time. Id. The
couple engaged in consensual, vaginal sex before sleeping, with some of their
clothes off. Id. at 638-39. D.B. put her pants, but not her underwear, back on and
went to sleep. 3T. at 639. After D.B. went to sleep, Washington kept trying to pull
her pants down; D.B. told him to stop. Id. at 639. She repeated herself but he
was fighting her and pinning her down and trying to make her have sex with him.
Id. at 639- 640. D.B. testified that Washington put a pillow over her face for “about
ten minutes” trying to smother her. 3T. at 640. After a struggle, Washington finally
pulled D.B.’s pants off. Id. at 644. “[Washington] was trying to have sex with D.B.
vaginally ("[H]e was trying to shove inside me, and I was fighting him off") and
orally ("[H]e had his other hand on his penis trying to put it in my mouth.") 3T. at
649- 650. Washington eventually forced his penis in her mouth and in her vagina.
3T. at 654. She told him "no “many times, more times than she could count.” Id.
at 655.
{¶24} D.B. reported the incident to the police and had a SANE examination.
{¶25} Washington testified that as D.B. was falling asleep, he slid her pants
off and had sex with her. 8T. at 1546. He testified that D.B. was okay with that, and
never told him “no.” Id. at 1546-1547. Washington testified that the couple had sex
again about an hour or two later. 8T. at 1547-1548. Washington testified that D.B.
never said no, he never hit her and he never choked her. Id. Washington testified that
Richland County, Case No. 2020 CA 0066 9
D.B. became angry because he told her she could not smoke cigarettes in the house.
Id. at 1548-1549. He claimed D.B. told him that, “all I got to do is go get a rape kit,
and you will be going to jail.” 8T. at 1549. D.B. began throwing things off the dresser
so he asked his sister to escort her out of the house. Id. at 1550-1551.
Jury verdict and sentencing
{¶26} On October 7, 2020, the Jury returned Verdicts on all eighteen counts
finding Washington "Guilty" on all counts. On October 14, 2020, the sentencing
hearing was conducted by the trial court. On October 15, 2020, the trial court issued
the Judgment Entry of Sentence. The trial court sentenced Washington to: (1) eleven
years of imprisonment on Counts 1, 3, 7, 8, 13, 14, and 16; (2) eight year terms of
imprisonment on Counts 2, 4, and 15; and, (3) three years of imprisonment on Count
5. Washington was further sentenced to ''jail" for Counts 10, 11, 12 and 18. The trial
court ordered that Count 6 merged with Count 5, Count 9 merged with Count 8, and
Count 17 merged with Count 16.
{¶27} The trial court ordered that Counts 1, 4, 7, 13, and 14 are to be served
consecutively with the other felony convictions/counts. The trial court ordered that
Washington's minimum sentence shall be an aggregate minimum term of 52 years to
a maximum term of 57 1/2 years, with five years of mandatory Post Release Control
("PRC").
Assignments of Error
{¶28} Washington raises five Assignments of Error,
Richland County, Case No. 2020 CA 0066 10
{¶29} “I. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE
APPELLANT BY DENYING HIS MOTION FOR SEVERANCE TO BIFURCATE THE
COUNTS AND ALLEGED SIX VICTIMS.
{¶30} “II. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE
APPELLANT BY REQUIRING AND/OR PERMITTING PROSPECTIVE JURORS
DURING VOIR DIRE TO WEAR MASKS.
{¶31} “III. THE APPELLANT'S CONVICTIONS ON EACH AND ALL COUNTS
WERE BASED UPON INSUFFICIENT EVIDENCE AND WERE OTHERWISE
AGAINST THE SUFFICIENT AND/OR MANIFEST WEIGHT OF THE EVIDENCE
AND NOT BEYOND A REASONABLE DOUBT, CONTRARY TO OHIO LAW AND
THE OHIO CONSTITUTION AND UNITED STATES CONSTITUTION.
{¶32} “IV. THE APPELLANT WAS DENIED DUE PROCESS BY A
SENTENCE CONTRARY TO OHIO LAW AND THE OHIO CONSTITUTION AND
UNITED STATES CONSTITUTION INCLUDING MAXIMUM PRISON TERMS AND
AN ORDER THAT CERTAIN COUNTS BE SERVED CONSECUTIVELY.
{¶33} “V. THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF
COUNSEL CONTRARY TO OHIO LAW AND THE OHIO CONSTITUTION AND
UNITED STATES CONSTITUTION DUE TO HIS INEFFECTIVE ASSISTANCE OF
TRIAL COUNSEL.”
I.
{¶34} In his First Assignment of Error, Washington contends the trial court
abused its discretion in denying his request for relief from prejudicial joinder.
Richland County, Case No. 2020 CA 0066 11
Washington argues that the trial court should have granted separate trials for each of
the alleged six victims in the Indictment against him.
Standard of Appellate Review
{¶35} An appellate court normally reviews a trial court’s decision on joinder for
an abuse of discretion. State v. Spaulding, 151 Ohio St.3d 378, 2016-Ohio-8126, 89
N.E.3d 554, ¶ 63; State v. Valentine, 5th Dist. Fairfield No. 18 CA 27, 2019-Ohio-
2243, ¶ 51. An abuse of discretion exists where the reasons given by the court for
its action are clearly untenable, legally incorrect, or amount to a denial of justice, or
where the judgment reaches an end or purpose not justified by reason and the
evidence. Tennant v. Gallick, 9th Dist. Summit No. 26827, 2014-Ohio-477, ¶35; In re
Guardianship of S.H., 9th Dist. Medina No. 13CA0066-M, 2013-Ohio-4380, ¶ 9; State
v. Firouzmandi, 5th Dist. Licking No. 2006-CA-41, 2006-Ohio-5823, ¶54.
Issue for Appellate Review: Whether the trial judge abused his discretion in
denying Washington’s motion to sever the counts of the indictment for separate trials.
{¶36} On August 13, 2020, Washington filed a Motion for Severance. On
September 11, 2020, the Court denied the Motion for Severance. Although
Washington filed a pretrial motion for severance, he did not renew it at the close of
the state’s case or at the conclusion of all the evidence. 7T. at 1459-1463; 8T. at
1616. Some Ohio courts have held a failure to renew the motion to sever constitutes
a waiver. State v. Miller, 105 Ohio App.3d 679, 691, 664 N.E.2d 1309 (4th Dist.
1995), citations omitted; State v. Valentine, 3rd Dist. Marion No. 9-10-50, 2011-Ohio-
3524, ¶82. However, this Court has preferred to address the claim on the merits.
State v. Musgrave, 5th Dist. Stark No. 97-CA-0135, 1998 WL 818067(Oct. 26, 1998);
Richland County, Case No. 2020 CA 0066 12
State v. Miller, 5th Dist. Stark No. 2003CA00273, 2004-Ohio-3716, 2004 WL
1564157, ¶ 15, fn. 1. See also, State v. Sapp, 105 Ohio St.3d 104, 2004-Ohio-7008,
822 N.E.2d 1739, ¶68.
The trial court did not abuse its discretion in denying Washington’s motion to sever
{¶37} Under Crim.R. 8(A), two or more offenses may be charged together if the
offenses “are of the same or similar character, * * * or are based on two or more acts or
transactions connected together or constituting parts of a common scheme or plan, or are
part of a course of criminal conduct.” In fact, “[t]he law favors joining multiple offenses in
a single trial under Crim.R. 8(A) if the offenses charged ‘are of the same or similar
character.’” State v. Lott, 51 Ohio St.3d 160, 163, 555 N.E.2d 293 (1990), quoting State
v. Torres, 66 Ohio St.2d 340, 343, 421 N.E.2d 1288 (1981). “Joinder is liberally permitted
to conserve judicial resources, reduce the chance of incongruous results in successive
trials, and diminish inconvenience to the witnesses.” State v. Schaim, 65 Ohio St.3d 51,
58, 600 N.E.2d 661 (1992).
{¶38} Nonetheless, if it appears that a criminal defendant would be prejudiced by
such joinder, then the trial court is required to order separate trials. Crim.R. 14. “It is the
defendant, however, who bears the burden of demonstrating prejudice and that the trial
court abused its discretion in denying severance.” State v. Saade, 8th Dist. Cuyahoga
Nos. 80705 and Cuyahoga Nos. 80706, 2002-Ohio-5564, ¶ 12, citing State v. Coley, 93
Ohio St.3d 253, 754 N.E.2d 1129 (2001), and State v. LaMar, 95 Ohio St.3d 181, 2002-
Ohio-2128, 767 N.E.2d 166.
{¶39} In State v. Franklin, the Ohio Supreme Court noted,
Richland County, Case No. 2020 CA 0066 13
The prosecutor may counter the claim of prejudice in two ways.
State v. Lott, 51 Ohio St.3d at 163, 555 N.E.2d at 298. The first is the “other
acts” test, where the state can argue that it could have introduced evidence
of one offense in the trial of the other, severed offense under the “other acts”
portion of Evid.R. 404(B). Id.; see, also, Bradley v. United States
(C.A.D.C.1969), 433 F.2d 1113, 1118-1119. The second is the “joinder”
test, where the state is merely required to show that evidence of each of the
crimes joined at trial is simple and direct. State v. Lott, supra; State v.
Roberts (1980), 62 Ohio St.2d 170, 175, 16 O.O.3d 201, 204, 405 N.E.2d
247, 251; State v. Torres, 66 Ohio St.2d at 343-344, 20 O.O.3d at 315, 421
N.E.2d at 1291. If the state can meet the joinder test, it need not meet the
stricter “other acts” test. Thus, an accused is not prejudiced by joinder when
simple and direct evidence exists, regardless of the admissibility of
evidence of other crimes under Evid.R. 404(B). State v. Lott, supra; State
v. Roberts, supra; State v. Torres, supra.
62 Ohio St.3d 118, 122, 580 N.E.2d 1(1991).
{¶40} Evidence is “simple and direct” if (1) the jury is capable of readily separating
the proof required for each offense, (2) the evidence is unlikely to confuse jurors, (3) the
evidence is straightforward, and (4) there is little danger that the jury would “improperly
consider testimony on one offense as corroborative of the other.” State v. Wright, 4th Dist.
Jackson No. 16CA3, 2017-Ohio-8702, ¶ 52, citing State v. Freeland, 4th Dist. Ross No.
12CA3352, 2015-Ohio-3410.
Richland County, Case No. 2020 CA 0066 14
{¶41} Courts have held that evidence of multiple offenses is “simple and direct”
where, for example, the offenses involved different victims, different incidents or factual
scenarios, and different witnesses. See State v. Dantzler, 10th Dist. Franklin Nos. 14AP-
907 and Franklin Nos. 14AP-908, 2015-Ohio-3641, ¶ 23 (“The evidence relating to each
incident was simple and direct: the incidents occurred separately, involved different
victims, and different eyewitnesses independently identified defendant as the shooter at
each incident. As such, there was no concern that the jury would confuse the evidence,
and defendant cannot establish that he was prejudiced by the joinder.”); State v. Lewis,
6th Dist. Lucas Nos. L-09-1224 and Lucas Nos. L-09-1225, 2010-Ohio-4202, ¶ 33 (“Ohio
appellate courts routinely find no prejudicial joinder where the evidence is presented in
an orderly fashion as to the separate offenses or victims without significant overlap or
conflation of proof.”).
{¶42} If either the “other acts” test or the “simple and direct” test is met, a
defendant cannot establish prejudice from the joinder. State v. Valentine, 5th Dist.
Fairfield No. 18 CA 27, 2019-Ohio-2243, ¶50.
{¶43} While the state argues that the cases could be tried together under either
test, there is no reason for us to look to the more stringent “other acts” test because the
evidence here was simple and straightforward. Each victim testified in detail as to the
sexual abuse which occurred. Corroboration in the form of disclosure to other individuals
was also presented and each of the women had SANE examinations done after the
incidents occurred. The incidents were promptly reported to the police.
Richland County, Case No. 2020 CA 0066 15
{¶44} As discussed in our disposition of Washington’s Third Assignment of Error
infra, sufficient evidence was produced to support each count of the Indictment without
reference to any other count.
{¶45} There was no complicated methodology to Washington’s crimes.
Washington admitted having sexual relations with each women; however, he claimed that
each one had consented to the sexual relations. A trier of fact is considered “capable of
segregating the proof on multiple charges when the evidence as to each of the charges
is uncomplicated.” State v. Lunder, 8th Dist. Cuyahoga No. 101223, 2014-Ohio-5341, ¶
33, citing Torres, 66 Ohio St.2d 340, 421 N.E.2d 1288. There is nothing in the record
before us to suggest that the jury confused the evidence as to the various counts or was
improperly “influenced by the cumulative effect of the joinder.” State v. Banks, 2015-Ohio-
5413, 56 N.E.3d 289, ¶ 64 (8th Dist.) at ¶ 66.
{¶46} Moreover, we presume that the jury followed the court’s instructions. State
v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, 23 N.E.3d 1096, ¶ 192, citing State
v. Loza, 71 Ohio St.3d 61, 641 N.E.2d 1082 (1994). The trial court in this case instructed
the jury as follows:
Each of the offenses charged in these cases constitute a separate
and distinct matter. You must consider each charge and the evidence
applicable to each charge separately and you must state your findings as
to each charge uninfluenced by your verdict as to the other charge[s]. The
defendant may be found guilty or not guilty of any one or more of the crimes
charged.
Richland County, Case No. 2020 CA 0066 16
8T. at 1651. Washington has not attempted to argue that he would have defended any
case differently if the charges had not been joined.
{¶47} Because Washington has not demonstrated that his rights were prejudiced
through the court’s failure to sever these charges, we overrule Washington’s First
Assignment of Error.
II.
{¶48} Prior to the start of trial, defense counsel made an oral motion in limine
and/or objection as to any person whose credibility the defense had to judge being
permitted to wear a mask during questioning. 1T. at 8 – 16. Specifically, the defense
objected to the wearing of masks by prospective jurors during voir dire questioning. Id.The defense stated that, without being able to view a person's face, as indicated by the
trial court relevant to trial witnesses, it would be very difficult to judge their credibility and
impartiality. Id. The Court denied the motion. At that point, the Court informed counsel,
The Court* * * is doing this due to Responsible RestartOhio [.] * * *
[W]hen we bring those jurors up individually to the bench or outside of the
presence of the remainder of the jurors, we can have them remove their
masks at that time and * **you should be able to*** gauge any prejudice [.]
1T. at 10. Prospective jurors when they were in the gallery, en masse, were to be masked
but when they were brought to the bench and asked question related to bias, were not.
{¶49} In his Second Assignment of Error, Washington contends this was error as
facial expressions tell much about credibility and therefore implicate the Sixth Amendment
right to a trial by fair and impartial jurors. [Appellant’s brief at 24-25].
Richland County, Case No. 2020 CA 0066 17
Standard of Appellate Review
{¶50} Pursuant to Crim.R. 52(A), “any error, defect, irregularity, or variance which
does not affect substantial rights shall be disregarded.” See also State v. McKnight, 107
Ohio St.3d 101, 2005–Ohio–6046, 837 N.E.2d 315, ¶ 88; State v. Aeschliman, 5th Dist.
Stark No. 2013CA00192, 2014-Ohio-4462, ¶90. To find an error harmless, an appellate
court must be able to declare a belief that the error was harmless beyond a reasonable
doubt. State v. Lytle, 48 Ohio St.2d 391, 403, 358 N.E.2d 623 (1976).
{¶51} Whether the defendant’s substantial rights were affected depends on
whether the error was prejudicial, i.e., whether it affected the outcome of the trial. State
v. Jones, 160 Ohio St.3d 314, 2020-Ohio-3051, 156 N.E.3d 872, ¶18 citing State v.
Fisher, 99 Ohio St.3d 127, 2003-Ohio-2761, 789 N.E.2d 222, ¶ 7
Issue for Appellate Review: Whether the trial court’s order that jurors wear
face masks during voir dire prejudicially affected Washington’s substantial rights.
{¶52} Washington cites no authority that seeing the bottom of the jurors’ faces is
constitutionally required. Courts have consistently held to the contrary. United States v.
Ayala-Vieyra, 6th Cir. No. 21-1177, 2022 WL 190756 (Jan. 21, 2022) at n.1 (collecting
cases).There is absolutely nothing in the record suggesting that the jury’s verdict may
have been different if Washington could have seen jurors’ full facial expressions during
voir dire or trial. We are therefore convinced that the trial court’s alleged error, to the
extent it was an error at all, was harmless beyond a reasonable doubt. United States v.
Smith, 6th Cir. No. 21-5432, 2021 WL 5567267 (Nov. 29, 2021).
{¶53} Washington’s Second Assignment of Error is overruled.
Richland County, Case No. 2020 CA 0066 18
III.
{¶54} In his Third Assignment of Error, Washington argues that there is insufficient
evidence to support his conviction for rape, attempted rape, kidnapping, abduction and
assault2. [Appellant’s brief at 25-26]. Further, Washington contends that these
convictions are against the manifest weight of the evidence.
Standard of Appellate Review– Sufficiency of the Evidence.
{¶55} The Sixth Amendment provides: “In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial, by an impartial jury....” This right, in
conjunction with the Due Process Clause, requires that each of the material elements of
a crime be proved to a jury beyond a reasonable doubt. Alleyne v. United States, 570
U.S. __, 133 S.Ct. 2151, 2156, 186 L.Ed.2d 314 (2013); Hurst v. Florida, 136 S.Ct. 616,
621, 193 L.Ed.2d 504 (2016). The test for the sufficiency of the evidence involves a
question of law for resolution by the appellate court. State v. Walker, 150 Ohio St.3d 409,
2016-Ohio-8295, 82 N.E.3d 1124, ¶30. “This naturally entails a review of the elements
of the charged offense and a review of the state's evidence.” State v. Richardson, 150
Ohio St.3d 554, 2016-Ohio-8448, 84 N.E.3d 993, ¶13.
{¶56} When reviewing the sufficiency of the evidence, an appellate court does not
ask whether the evidence should be believed. State v. Jenks, 61 Ohio St.3d 259, 574
N.E.2d 492 (1991), paragraph two of the syllabus, superseded by State constitutional
amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n.4,
684 N.E.2d 668 (1997; Walker, at ¶30. “The relevant inquiry is whether, after viewing the
2 Washington is not challenging Count 11 the Public Indecency count involving M.B., a charge that
he admitted he committed during his testimony. Nor does Washington challenge Count 12, the Public
Indecency count involving K.H. See, Appellant’s brief at 26-27; App. R. 12(A) (2),
Richland County, Case No. 2020 CA 0066 19
evidence in the 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.” Jenks at
paragraph two of the syllabus. State v. Poutney, 153 Ohio St.3d 474, 2018-Ohio-22, 97
N.E.3d 478, ¶19. Thus, “on review for evidentiary sufficiency we do not second-guess
the jury's credibility determinations; rather, we ask whether, ‘if believed, [the evidence]
would convince the average mind of the defendant's guilt beyond a reasonable doubt.’”
State v. Murphy, 91 Ohio St.3d 516, 543, 747 N.E.2d 765 (2001), quoting Jenks at
paragraph two of the syllabus; Walker at ¶31. We will not “disturb a verdict on appeal on
sufficiency grounds unless ‘reasonable minds could not reach the conclusion reached by
the trier-of-fact.’” State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48,
¶ 94, quoting State v. Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997); State v.
Montgomery, 148 Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180, ¶74.
Issue for Appellate Review: Whether, after viewing the evidence in the light most
favorable to the prosecution, the evidence, if believed, would convince the average mind
that Washington was guilty beyond a reasonable doubt of rape, attempted rape,
kidnapping, and abduction as set forth in the Indictment.
Rape [Counts 1, 7, 13, and 14]
{¶57} R.C. 2907.02, Rape provides in relevant part,
(2) No person shall engage in sexual conduct with another when the
offender purposely compels the other person to submit by force or threat of
force.
{¶58} Sexual conduct is defined in R.C. 2907.01(A) as, “vaginal intercourse
between a male and female; anal intercourse, fellatio, and cunnilingus between persons
Richland County, Case No. 2020 CA 0066 20
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 cavity of
another. Penetration, however slight, is sufficient to complete vaginal or anal intercourse.”
{¶59} R.C. 2901.22(A) provides, “A person acts purposely when it is the person’s
specific intention to cause a certain result, or, when the gist of the offense is a prohibition
against conduct of a certain nature, regardless of what the offender intends to accomplish
thereby, it is the offender’s specific intention to engage in conduct of that nature.” The
intent with which an act is committed may be inferred from the act itself and the
surrounding circumstances, including acts and statements of a defendant. State v.
Garner, 74 Ohio St.3d 49, 60, 1995-Ohio-168, 656 N.E.2d 623, 634(1995); State v.
Wallen, 21 Ohio App.2d 27, 34, 254 N.E.2d 716, 722(1969).
{¶60} “Force” means any violence, compulsion, or constraint physically exerted
by any means upon or against a person or thing. R.C. 2901.01(A).
{¶61} Concerning Count 1 of the Indictment, K.R. testified that Washington
forcefully inserted his penis into her vagina. 2T. at 281-282. K.R. repeatedly told
Washington to stop. 2T. at 278.
{¶62} Concerning Count 7 of the Indictment, M.H. testified when she said she
did not want to have sex at that time, Washington told her he was not going to take
"no" for an answer. 6T. at 1170. Washington pulled down her pants and
"proceeded to get on, like go inside [her], like sex.” 6T. at 1170. Eventually, M.H.
was able to kick Washington off of her. She pulled up her pants, grabbed her purse,
ran out of the room, and locked herself in the truck. 6T. at 1170-71. She was naked
Richland County, Case No. 2020 CA 0066 21
from the waist up. Id. at 1177. When Washington went to her to ask if she was alright,
M.H. told Washington that he had hit her and raped her. 8T. at 1523.
{¶63} Concerning Count 13, K.H. testified Washington forced his penis inside
K.H.’s vagina. Id. K.H. repeatedly told Washington “no.” Id. at 922.
{¶64} Concerning Count 14, D.B. testified. Washington forced his penis in
her mouth and in her vagina. 3T. at 654.
{¶65} Viewing the evidence in a light most favorable to the prosecution, we
conclude that a reasonable person could have found beyond a reasonable doubt that
Washington engaged in sexual conduct with K.R., M.H., K.H. and D.B. by purposely
compelling each one to submit by force or threat of force.
{¶66} We hold, therefore, that the state met its burden of production regarding the
elements of rape, accordingly, there was sufficient evidence to support Washington’s
convictions for rape.
Attempted Rape [Counts 2, 4, and 15]
{¶67} To find the Washington guilty of attempted rape in violation of R.C.
2907.02(A) (2) as alleged in Count 2, Count 4, and Count 15 of the indictment the trier of
fact would have to find that Washington attempted to engage in sexual conduct by
purposely compelling K.R., B.B., and D.B. to submit by force or threat of force.
{¶68} R.C. 2923.02(A) provides a definition of attempt: “[n]o person, purposely or
knowingly, and when purpose or knowledge is sufficient culpability for the commission of
an offense, shall engage in conduct that, if successful, would constitute or result in the
offense.”
Richland County, Case No. 2020 CA 0066 22
{¶69} The Ohio Supreme Court has held that a criminal attempt occurs when the
offender commits an act constituting a substantial step towards the commission of an
offense. State v. Woods, 48 Ohio St.2d 127, 357 N.E.2d 1059(1976), paragraph one of
the syllabus, overruled in part by State v. Downs, 51 Ohio St.2d 47, 364 N.E.2d
1140(1977). In defining substantial step, the Woods Court indicated that the act need not
be the last proximate act prior to the commission of the offense. Woods at 131–32, 357
N.E.2d 1059. However, the act “must be strongly corroborative of the actor’s criminal
purpose.” Id. at paragraph one of the syllabus. This test “properly directs attention to overt
acts of the defendant which convincingly demonstrate a firm purpose to commit a crime,
while allowing police intervention, based upon observation of such incriminating conduct,
in order to prevent the crime when the criminal intent becomes apparent.” Woods, supra
at 132, 357 N.E.2d at 1063. In other words, a substantive crime would have been
committed had it not been interrupted. Precisely what conduct will be held to be a
substantial step must be determined by evaluating the facts and circumstances of each
particular case. State v. Group, 98 Ohio St.3d 248, 262, 2002-Ohio-7247, 781 N.E.2d
980, 996(2002), ¶100.
{¶70} The intent with which an act is committed may be inferred from the act itself
and the surrounding circumstances, including acts and statements of a defendant. State
v. Garner, 74 Ohio St.3d 49, 60, 1995-Ohio-168, 656 N.E.2d 623, 634(1995); State v.
Wallen, 21 Ohio App.2d 27, 34, 254 N.E.2d 716, 722(1969).
{¶71} Concerning Count 2 of the Indictment, K.R. testified that during the course
of the attack Washington went to her and tried to shove his penis and his "balls" in her
mouth. 2T. at 280. She refused to open her mouth. Id.Richland County, Case No. 2020 CA 0066 23
{¶72} Concerning Count 4 of the Indictment, B.B. testified Washington pulled her
down to the bottom of the bed and, holding her by the hair, rubbed his penis on her
face and cheek and lips, trying to stick it in her mouth. 3T. at 542. B.B. testified, "at
one point it had slipped between my lips, but I was clenching my jaw so that he
couldn't get it in my mouth and it would rub across my teeth." 3T. at 542. B.B. testified
that she was hitting Washington’s chest, trying to get him off of her.
{¶73} Concerning Count 15 of the Indictment, D.B. testified after a struggle,
Washington finally pulled D.B.’s pants off. Id. at 644. "[Washington] was trying to
shove inside me, and I was fighting him off" and [Washington] had his other hand
on his penis trying to put it in my mouth.") 3T. at 649- 650.
{¶74} Viewing the evidence in a light most favorable to the prosecution, we
conclude that a reasonable person could have found beyond a reasonable doubt that
Washington attempted to engage in sexual conduct with K.R., B.B. K.H. , and D.B. by
purposely compelling each one to submit by force or threat of force.
{¶75} We hold, therefore, that the state met its burden of production regarding the
elements of attempted rape, accordingly, there was sufficient evidence to support
Washington’s convictions for attempted rape.
Kidnapping [Counts 3, 8 and 16].
{¶76} R.C. 2905. 01(A)(4) defines kidnapping:
(A) No person, by force, threat, or deception, or, in the case of a
victim under the age of thirteen or mentally incompetent, by any means,
shall remove another from the place where the other person is found or
restrain the liberty of the other person, for any of the following purposes:
Richland County, Case No. 2020 CA 0066 24
***
(4) To engage in sexual activity, as defined in section 2907.01 of the
Revised Code, with the victim against the victim's will....
{¶77} In the case at bar, there was no asportation or secreting of the victims. K.R.,
M.H. and D.B. each voluntarily went with Washington. Each engaged in consensual sex
with Washington. However, when each women refused to engage in further sexual activity
with Washington their situations changed.
{¶78} K.R. testified with respect to Count 3 of the Indictment that as she attempted
to flee the room, Washington forcibly restrained her while attempting to force her to
perform oral sex upon him.
{¶79} M.H. testified with respect to Count 8 of the Indictment she was able to
kick Washington off of her. She pulled up her pants, grabbed her purse, ran out of
the room, and locked herself in the truck.
{¶80} D.B. testified with respect to Count 16 of the Indictment that Washington
was fighting her and pinning her down and trying to make her have sex with him. At
one point, he put a pillow over her face trying to smother her.
{¶81} Viewing the evidence in a light most favorable to the prosecution, we
conclude that a reasonable person could have found beyond a reasonable doubt that
Washington by force, threat, or deception restrained the liberty of the K.R., M.H., and D.B.
to engage in sexual activity against each one’s will.
{¶82} We hold, therefore, that the state met its burden of production regarding the
elements of kidnapping, accordingly, there was sufficient evidence to support
Washington’s convictions for kidnapping.
Richland County, Case No. 2020 CA 0066 25
Abduction [Counts, 5, 6, 9, and 17]
{¶83} The trial court merged Count 5 abduction of B.B with Count 6 abduction of
B.B.; Count 8 kidnapping of M.H. with Count 9 abduction of M.H.; and, Count 16
kidnapping of D.B. with Count 17 abduction of D.B. Washington was not sentenced on
the merged counts. 9T. at 1794-1795.
{¶84} R.C. 2905.02 Abduction states in relevant part,
(A) No person, without privilege to do so, shall knowingly do any of
the following:
(1) By force or threat, remove another from the place where the other
person is found;
(2) By force or threat, restrain the liberty of another person under
circumstances that create a risk of physical harm to the victim or place the
other person in fear;
{¶85} With respect to Count 5, B.B. testified that at one point Washington
climbed off and she got up to run but he grabbed her by the ponytail and pulled her
back. 3T. at 543. B.B. was finally able to get out the door; however, Washington
followed her down the hall, pinning her against the wall by her neck chocking her. 3T.
at 552.
{¶86} Viewing the evidence in a light most favorable to the prosecution, we
conclude that a reasonable person could have found beyond a reasonable doubt that
Washington by force or threat, restrained the liberty of the B.B. under circumstances that
create a risk of physical harm to her. We hold, therefore, that the state met its burden of
Richland County, Case No. 2020 CA 0066 26
production regarding the elements of abduction as set forth in the Indictment, accordingly,
there was sufficient evidence to support Washington’s convictions.
Assault [Count 10 and Count 18]
{¶87} R.C. 2903.13 provides that,” No person shall knowingly cause or attempt to
cause physical harm to another or to another’s unborn.”
{¶88} R.C. 2901.01(A)(3) provides, ““Physical harm to persons” means any injury,
illness, or other physiological impairment, regardless of its gravity or duration.”
{¶89} With respect to Count 10, Jennifer Coffindaffer, a certified Sexual Assault
Nurse Examiner testified that M.H. had a black eye, two bite marks on her back, bruising
and redness on her arms, and fingerprint bruising to her legs. 4T. at 824.
{¶90} With respect to Count 18, D.B. had bruising in the middle and the bottom
of her neck, and a scrape on her neck, which she showed to police officers. 3T. at 554;
557.
{¶91} Viewing the evidence in a light most favorable to the prosecution, we
conclude that a reasonable person could have found beyond a reasonable doubt that
Washington caused physical harm to M.H. and D.B. We hold, therefore, that the state
met its burden of production regarding the elements of assault as set forth in Count 10
and Count 18 of the Indictment, accordingly, there was sufficient evidence to support
Washington’s conviction.
Standard of Appellate Review – Manifest Weight.
{¶92} As to the weight of the evidence, the issue is whether the jury created a
manifest miscarriage of justice in resolving conflicting evidence, even though the
evidence of guilt was legally sufficient. State v. Thompkins, 78 Ohio St.3d 380, 386–387,
Richland County, Case No. 2020 CA 0066 27
678 N.E.2d 541 (1997), superseded by constitutional amendment on other grounds as
stated by State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668, 1997–Ohio–355; State v.
Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001).
“[I]n determining whether the judgment below is manifestly against
the weight of the evidence, every reasonable intendment and every
reasonable presumption must be made in favor of the judgment and the
finding of facts.
***
“If the evidence is susceptible of more than one construction, the
reviewing court is bound to give it that interpretation which is consistent with
the verdict and judgment, most favorable to sustaining the verdict and
judgment.”
Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.
3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).
{¶93} The reviewing court must bear in mind, however, that credibility generally is
an issue for the trier of fact to resolve. State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d
904 (2001); State v. Murphy, 4th Dist. Ross No. 07CA2953, 2008–Ohio–1744, ¶ 31.
Because the trier of fact sees and hears the witnesses and is particularly competent to
decide whether, and to what extent, to credit the testimony of particular witnesses, the
appellate court must afford substantial deference to its determinations of credibility.
Barberton v. Jenney, 126 Ohio St.3d 5, 2010–Ohio–2420, 929 N.E.2d 1047, ¶ 20. In
other words, “[w]hen there exist two fairly reasonable views of the evidence or two
conflicting versions of events, neither of which is unbelievable, it is not our province to
Richland County, Case No. 2020 CA 0066 28
choose which one we believe.” State v. Dyke, 7th Dist. Mahoning No. 99 CA 149, 2002–
Ohio–1152, at ¶ 13, citing State v. Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d 125(7th
Dist. 1999). Thus, an appellate court will leave the issues of weight and credibility of the
evidence to the fact finder, as long as a rational basis exists in the record for its decision.
State v. Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012–Ohio–1282, ¶ 24.
{¶94} Once the reviewing court finishes its examination, an appellate court may
not merely substitute its view for that of the jury, but must find that “‘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. Thompkins, supra, 78 Ohio St.3d at 387,
quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist.
1983). Accordingly, reversal on manifest weight grounds is reserved for “the exceptional
case in which the evidence weighs heavily against the conviction.” Id.Issue for Appellate Review: Whether the jury clearly lost their way and created
such a manifest miscarriage of justice that the convictions must be reversed and a new
trial ordered.
{¶95} The jury as the trier of fact was free to accept or reject any and all of the
evidence offered by the parties and assess the witness’s credibility. “While the trier of
fact may take note of the inconsistencies and resolve or discount them accordingly * * *
such inconsistencies do not render defendant’s conviction against the manifest weight or
sufficiency of the evidence.” State v. Craig, 10th Dist. Franklin No. 99AP–739, 1999 WL
29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09–1236, 1996
WL 284714 (May 28, 1996). Indeed, the trier of fact need not believe all of a witness’
testimony, but may accept only portions of it as true. State v. Raver, 10th Dist. Franklin
Richland County, Case No. 2020 CA 0066 29
No. 02AP–604, 2003–Ohio–958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197
N.E.2d 548 (1964); State v. Burke, 10th Dist. Franklin No. 02AP–1238, 2003–Ohio–2889,
citing State v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992). Although
the evidence may have been circumstantial, we note that circumstantial evidence has the
same probative value as direct evidence. State v. Jenks, 61 Ohio St.3d 259, 272, 574
N.E.2d 492 (1991), paragraph one of the syllabus, superseded by State constitutional
amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n.4,
684 N.E.2d 668 (1997).
{¶96} In the case at bar, the jury heard the witnesses, saw Washington’s video
statements to the police, heard Washington’s testimony and viewed the evidence. The
jury saw K.R., B.B., M.H., K.H., and D.B. testify and be subjected to cross-examination.
Thus, a rational basis exists in the record for the jury’s decision.
{¶97} We find that this is not an “‘exceptional case in which the evidence weighs
heavily against the conviction.’” State v. Thompkins, 78 Ohio St.3d 380, 386–387, 678
N.E.2d 541 (1997), quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. Based upon
the foregoing and the entire record in this matter we find Washington’s convictions are
not against the sufficiency or the manifest weight of the evidence. To the contrary, the
jury appears to have fairly and impartially decided the matters before them. The jury
heard the witnesses, evaluated the evidence, and was convinced of Washington’s guilt.
The jury neither lost their way nor created a miscarriage of justice in convicting
Washington of the charges.
Richland County, Case No. 2020 CA 0066 30
{¶98} Finally, upon careful consideration of the record in its entirety, we find that
there is substantial evidence presented which if believed, proves all the elements of the
crimes for which Washington was convicted.
{¶99} Washington’s Third Assignment of Error is overruled.
IV.
{¶100} In his Fourth Assignment of Error, Washington argues that the imposition of
maximum consecutive sentences is contrary to law and not supported by the record.
Further, he argues that his sentence violates the Eighth Amendment because it
constitutes cruel and unusual punishment. [Appellant’s brief at 31].
Standard of Appellate Review.
{¶101} We review felony sentences using the standard of review set forth in R.C.
2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002, 59 N.E.3d 1231, ¶ 22;
State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶ 31.
{¶102} In State v. Gwynne, a plurality of the Supreme Court of Ohio held that an
appellate court may only review individual felony sentences under R.C. 2929.11 and R.C.
2929.12, while R.C. 2953.08(G)(2) is the exclusive means of appellate review of
consecutive felony sentences. 158 Ohio St.3d 279, 2019-Ohio-4761, 141 N.E.3d 169,
¶16-18.
{¶103} R.C. 2953.08(G)(2) provides we may either increase, reduce, modify, or
vacate a sentence and remand for resentencing where we clearly and convincingly find
that either the record does not support the sentencing court’s findings under R.C.
2929.13(B) or (D), 2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is
Richland County, Case No. 2020 CA 0066 31
otherwise contrary to law. See, also, State v. Bonnell, 140 Ohio St.3d 209, 2014–Ohio–
3177, 16 N.E.2d 659, ¶ 28; State v. Gwynne, ¶16.
{¶104} Clear and convincing evidence is that evidence “which will provide in the
mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118(1954), paragraph three of the
syllabus. See also, In re Adoption of Holcomb, 18 Ohio St.3d 361 (1985). “Where the
degree of proof required to sustain an issue must be clear and convincing, a reviewing
court will examine the record to determine whether the trier of facts had sufficient
evidence before it to satisfy the requisite degree of proof.” Cross, 161 Ohio St. at 477
120 N.E.2d 118.
Issue for appellate review: Whether the record does not support the sentencing
court’s findings under R.C. 2929.13(B) or (D), 2929.14(B)(2)(e) or (C)(4), or 2929.20(I),
or the sentence is otherwise contrary to law.
R.C. 2929.13(B).
{¶105} R.C. 2929.13(B) applies to one convicted of a fourth or fifth degree felony.
Washington was not convicted of either a fourth or fifth degree felony.
R.C. 2929.13(C)
{¶106} R.C. 2929.13(C) applies to one convicted of a third-degree felony.
Washington was convicted of Abduction, a felony of the third degree in violation of R.C.
2905.02(A)(2).
{¶107} R.C. 2919.13(C) provides,
(C) Except as provided in division (D), (E), (F), or (G) of this section,
in determining whether to impose a prison term as a sanction for a felony of
Richland County, Case No. 2020 CA 0066 32
the third degree or a felony drug offense that is a violation of a provision of
Chapter 2925. of the Revised Code and that is specified as being subject
to this division for purposes of sentencing, the sentencing court shall comply
with the purposes and principles of sentencing under section 2929.11 of the
Revised Code and with section 2929.12 of the Revised Code.
{¶108} Thus, the legislature has provided no presumption either in favor of or
against imprisonment upon conviction of a third-degree felony.
R.C. 2929.13(D).
{¶109} R.C. 2929.13(D) (1) applies to one convicted of a felony of the first or
second degree, for a felony drug offense that is a violation of any provision of Chapter
2925., 3719., or 4729. of the Revised Code for which a presumption in favor of a prison
term is specified as being applicable, and for a violation of division (A)(4) or (B) of section
2907.05 of the Revised Code for which a presumption in favor of a prison term is specified
as being applicable.
{¶110} R.C. 2929.13(D)(1) provides that when sentencing for a first or second-
degree felony “it is presumed that a prison sentence is necessary in order to comply with
the purposes and principles of sentencing.” Nonetheless, R.C. 2929.13(D)(2) provides
that “[n]otwithstanding the presumption * * * the sentencing court may impose a
community control sanction,” (emphasis added), but only if the sentencing court finds that
a community control sanction would (1) adequately punish the offender and protect the
public from future crime, and (2) not demean the seriousness of the offense because the
statutory less serious sentencing factors outweigh the more serious factors.
Richland County, Case No. 2020 CA 0066 33
{¶111} Thus, in order to impose a community control sanction in the instant case,
the trial court would have been required to find that such a sanction would adequately
punish Washington, that Washington was less likely to re-offend, and that such a sanction
would not demean the seriousness of the offense because Washington’s conduct was
less serious than conduct normally constituting the offense. State v. Morin, 5th Dist.
Fairfield No. 2008–CA–10, 2008–Ohio–6707, 2008 WL 5265857, ¶ 27.
{¶112} The trial court noted that Washington victimized six women. 9T. at 1788.
The court noted the seriousness of the offenses involving the traumatizing of the six
women involved. Id. at 1789. Washington knew all of the victims except the motel
housekeeper. Id. at 1789-1790. Further Washington was out on bond, pre-trial
supervision when twelve of the counts occurred. Id. at 1790.
{¶113} In the case at bar, the trial court weighed and considered R.C. 2929.13(D)
in Washington’s case. We find Washington failed in his burden to overcome the
presumption of imprisonment.
R.C. 2929.14 (B)(2)(e).
{¶114} R.C. 2929.14(B)(2)(e) concerns additional prison sentences that a trial
court can impose upon a defendant under specified circumstances. Washington was not
given an additional prison sentence.
R.C. 2929.14 (C)(4) Consecutive Sentences.
{¶115} In Ohio, there is a statutory presumption in favor of concurrent sentences
for most felony offenses. R.C. 2929.41(A). “In order to impose consecutive terms of
imprisonment, a trial court is required to make the findings mandated by R.C.
2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing
Richland County, Case No. 2020 CA 0066 34
entry[.]” State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, ¶37. Otherwise, the
imposition of consecutive sentences is contrary to law. See Id. The trial court is not
required “to give a talismanic incantation of the words of the statute, provided that the
necessary findings can be found in the record and are incorporated into the sentencing
entry.” Id. (Emphasis added).
{¶116} R.C. 2929.14(C)(4) provides,
If multiple prison terms are imposed on an offender for convictions of
multiple offenses, the court may require the offender to serve the prison
terms consecutively if the court finds that the consecutive service is
necessary to protect the public from future crime or to punish the offender
and that consecutive sentences are not disproportionate to the seriousness
of the offender’s conduct and to the danger the offender poses to the public,
and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised
Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or more of
the multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender’s conduct.
Richland County, Case No. 2020 CA 0066 35
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime
by the offender.
{¶117} R.C. 2929.14(C)(4) requires the trial court to undertake a three-part
analysis. State v. Alexander, 1st Dist. Hamilton Nos. C–110828 and C–110829, 2012-
Ohio-3349, 2012 WL 3055158, ¶ 15. Thus, in order for a trial court to impose consecutive
sentences the court must find that (1) consecutive sentences are necessary to protect the
public from future crime or to punish the offender. The court must also find that (2)
consecutive sentences are not disproportionate to the offender’s conduct and to the
danger the offender poses to the public. Finally, (3) the court must make at least one of
three additional findings, which include that (a) the offender committed one or more of the
offenses while awaiting trial or sentencing, while under a sanction imposed under R.C.
2929.16, 2929.17, or 2929.18, or while under post release control for a prior offense; (b)
at least two of the multiple offenses were committed as part of one or more courses of
conduct, and the harm caused by two or more of the offenses was so great or unusual
that no single prison term for any of the offenses committed as part of any of the courses
of conduct would adequately reflect the seriousness of the offender’s conduct; or (c) the
offender’s criminal history demonstrates that consecutive sentences are necessary to
protect the public from future crime by the offender. See, State v. White, 5th Dist. Perry
No. 12-CA-00018, 2013-Ohio-2058, ¶36.
{¶118} In this case, the record does support a conclusion that the trial court made
all of the findings required by R.C. 2929.14(C)(4) at the time it imposed consecutive
sentences.
Richland County, Case No. 2020 CA 0066 36
R.C. 2929.14(C)(4): [T]he court may require the offender to serve the prison
terms consecutively if the court finds that the consecutive service is necessary to
protect the public from future crime or to punish the offender and that consecutive
sentences are not disproportionate to the seriousness of the offender’s conduct
and to the danger the offender poses to the public.
{¶119} In the case at bar, the trial court made this finding on the record and in its
sentencing entry. 9T. at 1796.
R.C. 2929.14(C)(4)(a): The offender committed one or more of the multiple
offenses while the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to Section 2929.16, 2929.17, or 2929.18 of the Revised Code, or
was under post-release control for a prior offense.
{¶120} In the case at bar, the trial court found that Washington was out on bond,
pre-trial supervision when twelve of the counts occurred. 9T. at 1790.
R.C. 2929.14(C)(4)(b): At least two of the multiple offenses were committed
as part of one or more courses of conduct, and the harm caused by two or more of
the multiple offenses so committed was so great or unusual that no single prison
term for any of the offenses committed as part of any of the courses of conduct
adequately reflects the seriousness of the offender’s conduct.
{¶121} In the case at bar, the trial court made this finding on the record and in its
sentencing entry. 9T. at 178-1789; 1796.
R.C. 2929.14(C)(4)(c): The offender’s history of criminal conduct
demonstrates that consecutive sentences are necessary to protect the public from
future crime by the offender.
Richland County, Case No. 2020 CA 0066 37
{¶122} The trial court noted that Washington prior criminal record consisted of
misdemeanors. 9T. at 1790.
Whether the trial court’s decision to impose consecutive sentences in Smith’s
case is supported by the record.
{¶123} According to the Ohio Supreme Court, “the record must contain a basis
upon which a reviewing court can determine that the trial court made the findings required
by R.C. 2929.14(C)(4) before it imposed consecutive sentences.” Bonnell, ¶28
(emphasis added). “[A]s long as the reviewing court can discern that the trial court
engaged in the correct analysis and can determine that the record contains evidence to
support the findings, consecutive sentences should be upheld.” Id. at ¶29 (emphasis
added). In addition, a plurality of the Ohio Supreme Court in Gwynne held that appellate
courts may not review consecutive sentences for compliance with R.C. 2929.11 and R.C.
2929.12. See, Gwynne, 2019-Ohio- 4761, ¶18.
{¶124} In the case at bar as we have noted the record contains evidence to support
the trial courts findings imposing consecutive sentences.
R.C. 2929.11 and R.C. 2929.12 and Maximum Sentences.
{¶125} A trial court’s imposition of a maximum prison term for a felony conviction is
not contrary to law as long as the sentence is within the statutory range for the offense,
and the court considers both the purposes and principles of felony sentencing set forth in
R.C. 2929.11 and the seriousness and recidivism factors set forth R.C. 2929.12. State v.
Keith, 8th Dist. Cuyahoga Nos. 103413 and 103414, 2016–Ohio–5234, ¶ 10, 16.
{¶126} In State v. Jones, the Ohio Supreme Court found,
Richland County, Case No. 2020 CA 0066 38
Nothing in R.C. 2953.08(G)(2) permits an appellate court to
independently weigh the evidence in the record and substitute its judgment
for that of the trial court concerning the sentence that best reflects
compliance with R.C. 2929.11 and 2929.12. In particular, R.C.
2953.08(G)(2) does not permit an appellate court to conduct a freestanding
inquiry like the independent sentence evaluation this court must conduct
under R.C. 2929.05(A) when reviewing a death penalty-sentence. See
State v. Hundley, –––Ohio St.3d –––, 2020-Ohio-3775, –– N.E.3d ––, ¶ 128
(recognizing that R.C. 2929.05(A) requires de novo review of findings and
other issues within its scope). We therefore conclude that the merits panel’s
ultimate judgments were erroneous.
163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 42.
{¶127} Upon review, we find that the trial court's sentencing on the charges
complies with applicable rules and sentencing statutes. The sentence was within the
statutory sentencing range. We also find that the record in the case at bar supports the
trial court’s findings under R.C. 2929.14(C)(4). Furthermore, the record reflects that the
trial court considered the purposes and principles of sentencing and the seriousness and
recidivism factors as required in Sections 2929.11 and 2929.12 of the Ohio Revised
Code. While Washington may disagree with the weight given to these factors by the trial
judge, Washington’s sentence was within the applicable statutory range and therefore,
we have no basis for concluding that it is contrary to law.
Richland County, Case No. 2020 CA 0066 39
Cruel and Unusual Punishment
{¶128} Nor do we find that the sentences in this case violate the prohibition against
cruel and unusual punishment.
{¶129} The Eighth Amendment to the United States Constitution prohibits
excessive sanctions by the government. It provides as follows: “Excessive bail shall not
be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
See, also, Section 9, Article I of the Ohio Constitution.
{¶130} It is well-established that sentences do not violate these constitutional
provisions against cruel and unusual punishment unless the sentences are so grossly
disproportionate to the offenses as to shock the sense of justice in the community. See
State v. Chaffin, 30 Ohio St.2d 13, 282 N.E.2d 46 (1972). As a general rule, a sentence
that falls within the terms of a valid statute cannot amount to a cruel and unusual
punishment. State v. Stevens, 5th Dist. Stark No. 2017CA00024, 2017-Ohio-8692, ¶ 10,
quoting McDougle v. Maxwell, 1 Ohio St.2d 68, 69, 203 N.E.2d 334 (1964).
{¶131} Proportionality analysis under the Eighth Amendment should be guided by
objective criteria, including (i) the gravity of the offense and the harshness of the penalty;
(ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the
sentences imposed for commission of the same crime in other jurisdictions. State v.
Morin, 5th Dist. Fairfield No. 2008–CA–10, 2008–Ohio–6707, ¶ 69, citing Solem v. Helm,
463 U.S. 277, 290–292, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). However, in State v.
Hairston, 118 Ohio St.3d 289, 2008–Ohio–2338, ¶ 20, the Ohio Supreme Court held that
“[w]here none of the individual sentences imposed on an offender are grossly
disproportionate to their respective offenses, an aggregate prison term resulting from
Richland County, Case No. 2020 CA 0066 40
consecutive imposition of those sentences does not constitute cruel and unusual
punishment.” Thus, Eighth Amendment proportionality review does not apply to
consecutive sentences. State v. Williams, 1st Dist. Hamilton No. C-160336, 2017-Ohio-
8898, 101 N.E.3d 547, ¶ 31, citing Hairston at ¶ 20. (Emphasis added).
{¶132} “As a general rule, a sentence that falls within the terms of a valid statute
cannot amount to a cruel and unusual punishment.” McDougle v. Maxwell, 1 Ohio St.2d
68, 69, 203 N.E.2d 334 (1964). “[P]unishments which are prohibited by the Eighth
Amendment are limited to torture or other barbarous punishments, degrading
punishments unknown at common law, and punishments which are so disproportionate
to the offense as to shock the moral sense of the community.” Id.{¶133} Washington has not contrasted his individual sentences or his aggregate
prison term with any Ohio, out-of-state, or federal cases.
{¶134} Given that the trial court is not obligated to refer to every factor listed in R.C.
2929.12 as part of its sentencing analysis, “the defendant has the burden to affirmatively
show that the court did not consider the applicable sentencing criteria or that the sentence
imposed is ‘strikingly inconsistent’ with the applicable sentencing factors.” State v. Hull,
11th Dist. Lake No. 2016-L-035, 2017-Ohio- 157, ¶8. Washington has failed in this
burden. Washington has failed to clearly and convincingly show that the trial court failed
to consider the principles of felony sentencing, or that the aggregate sentence is
otherwise contrary to law. Washington has further failed in his burden to show the
sentences imposed on him are grossly disproportionate to their respective offenses so as
to shock the moral sense of the community.
{¶135} Washington’s Fourth Assignment of Error is overruled.
Richland County, Case No. 2020 CA 0066 41
V.
{¶136} In his Fifth Assignment of Error Washington maintains he received
ineffective assistance of trial counsel.
Standard of Appellate Review.
{¶137} To prevail on a Sixth Amendment claim alleging ineffective assistance of
counsel, a defendant must show that his counsel’s performance was deficient and that
his counsel’s deficient performance prejudiced him. Strickland v. Washington, 466 U.S.
668, 694 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To show deficiency, a defendant must
show that “counsel’s representation fell below an objective standard of reasonableness.”
Id., at 688, 104 S.Ct. 2052. And to establish prejudice, a defendant must show “that there
is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id., at 694, 104 S.Ct. 2052. Andtus v. Texas,
590 U.S. __, 140 S.Ct. 1875, 1881 (June 15, 2020).
Issue for Appellate Review: Whether there is a reasonable probability that, but
for counsel’s failures the result of the proceeding would have been different.
{¶138} Washington’s sole argument in support of this assignment is, “The Appellant
will not rehash the evidence of ineffective assistance of counsel provided in the other
Assignments of Error and the Appellant expressly incorporates those facts and arguments
herein.” [Appellant’s brief at 33]. He gives no specifics. Nor does he cite to the portions
of the record that support his claim that counsel’s ineffectiveness prejudiced
Washington’s substantial rights.
{¶139} Because Washington fails to properly reference portions of the record
supporting his claim that trial counsel was ineffective, Washington cannot demonstrate
Richland County, Case No. 2020 CA 0066 42
the claimed error. See Daniels v. Santic, 11th Dist. Geauga No. 2004-G-2570, 2005-
Ohio-1101, ¶ 13-15. See, also, App.R. 12(A)(2) and 16(A)(7); Graham v. City of Findlay
Police Dept. 3rd Dist. Hancock No. 5–01–32, 2002–Ohio–1215 (stating, "[t]his court is not
obliged to search the record for some evidence of claimed error. * * * Rather, an appellant
must tell the appellate court specifically where the trial court's alleged errors may be
located in the transcript"); State ex rel. Physicians Commt. for Responsible Medicine v.
Ohio State Univ. Bd. of Trustees, 108 Ohio St.3d 288, 2006-Ohio-903, ¶ 13; State ex rel.
Petro v. Gold, 166 Ohio App.3d 371, 2006-Ohio-943(10th Dist.), ¶ 94, appeal not allowed,
110 Ohio St.3d 1439, 2006-Ohio-3862, reconsideration denied, 111 Ohio St.3d 1418,
2006-Ohio-5083; Porter v. Keefe, 6th Dist. Erie No. E-02-018, 2003-Ohio-7267, ¶109-
113.
{¶140} The only articulable claim Washington asserts is that he wanted to call an
additional witness and present additional evidence.
{¶141} Washington’s claim with respect to both witnesses and evidence rests on
mere speculation, and “[s]uch speculation is insufficient to establish ineffective
assistance.” State v. Short, 129 Ohio St.3d 360, 2011–Ohio–3641, 952 N.E.2d 1121, ¶
119, citing State v. Perez, 124 Ohio St.3d 122, 2009–Ohio–6179, 920 N.E.2d 104, ¶ 217;
State v. Were, 118 Ohio St.3d 448, 2008–Ohio–2762, 890 N.E.2d 263, ¶ 219; State v.
Elmore, 111 Ohio St.3d 515, 2006–Ohio–6207, 857 N.E.2d 547, ¶ 121.
{¶142} The substance of the testimony and the evidence is not found in the record.
We are unwilling to speculate the outcome of the trial would have been different but for
failing to call additional witnesses or present additional evidence when neither claim is
supported by facts, and therefore find appellant did not receive ineffective assistance of
Richland County, Case No. 2020 CA 0066 43
counsel. See, State v. Ducker, 5th Dist. Stark No. 2012CA00193, 2013–Ohio–3658; State
v. Poulton, 5th Dist. Muskingum No. CT2013–0030, 2014–Ohio–1198, appeal not
allowed, 2014–Ohio–2487, 139 Ohio St.3d 1420, 10 N.E.3d 739.
{¶143} Additionally, we note Washington’s trial counsel did call additional
witnesses. One indicated ahead of time that she would defy her subpoena. 8T. at 1617-
1619. Washington's sister told the trial court she would be there by one o’clock in the
afternoon on the last day of trial but she chose not to appear. Id. at 1619. There were
additional witnesses for whom the trial court prolonged the morning session in order for
them to appear but they did not. Id. at 1618.
{¶144} In the alternative, because we have found no errors, as previously noted in
our disposition of Washington’s First, Second, Third and Fourth Assignments of Error, we
find Washington was not prejudiced by defense counsel’s representation of him. The
result of the trial was not unreliable nor were the proceedings fundamentally unfair
because of the performance of defense counsel.
{¶145} Washington’ Fifth Assignment of Error is overruled.
Richland County, Case No. 2020 CA 0066 44
{¶146} The judgment of the Richland County Court of Common Pleas is affirmed.
By Gwin, P.J.,
Delaney, J., and
Baldwin, J. concur