State v. Gordon , 2017 Ohio 5796 ( 2017 )

[Cite as State v. Gordon, 2017-Ohio-5796.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 28191
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
BRUCE L. GORDON COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 2015 03 0656
DECISION AND JOURNAL ENTRY
Dated: July 12, 2017
CARR, Judge.
{¶1} Defendant-Appellant Bruce L. Gordon appeals from the judgment of the Summit
County Court of Common Pleas. This Court affirms in part, reverses in part, and remands the
matter for proceedings consistent with this opinion.
I.
{¶2} In March 2015, Gordon was indicted on two counts of rape in violation of R.C.
2907.02(A)(1)(b). The indictment included factual allegations that Gordon purposely compelled
the victims to submit by force or threat of force. Additionally, Gordon was charged with three
counts of gross sexual imposition in violation of R.C. 2907.05(A)(4). The allegations involved
Gordon’s three stepdaughters, K.A. (born in 2006), R.A. (born in 2007), and S.A. (born in 2009).
The matter proceeded to a jury trial, at which the jury found Gordon guilty of the charged
offenses. With respect to the rape counts, the jury specifically found that both victims, K.A. and
R.A., were under the age of ten at the time of the offense and that they were compelled to submit
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by force or threat of force. The trial court sentenced Gordon to an aggregate term of fifty-five
years to life in prison.
{¶3} Gordon has appealed, raising seven assignments of error for our review, which
will be discussed out of sequence to facilitate our analysis.
II.
ASSIGNMENT OF ERROR II
THE TRIAL COURT COMMITTED REVERSIBLE [ERROR] WHEN IT
FOUND MR. GORDON GUILTY OF RAPE AND GROSS SEXUAL
IMPOSITION BECAUSE THE EVIDENCE WAS INSUFFICIENT TO
SUPPORT SUCH FINDINGS.
ASSIGNMENT OF ERROR III
MR. GORDON’S CONVICTIONS FOR RAPE AND GROSS SEXUAL
IMPOSITION ARE AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
{¶4} Gordon argues in his second assignment of error that his convictions are based on
insufficient evidence. He asserts in his third assignment of error that his convictions are against
the manifest weight of the evidence. He bases both arguments on that fact that “there was no
physical evidence linking [] Gordon to the crimes, the children did not personally identify []
Gordon as the perpetrator during the trial, or were coached to say it was [] Gordon by others; and
that the children had been previously exposed to sexualized behavior by their mother.”
{¶5} Gordon was convicted of two counts of violating R.C. 2907.02(A)(1)(b) and three
counts of violating R.C. 2907.05(A)(4). R.C. 2907.02(A)(1)(b) states that “[n]o person shall
engage in sexual conduct with another who is not the spouse of the offender * * * when * * *
[t]he other person is less than thirteen years of age, whether or not the offender knows the age of
the other person.” Sexual conduct
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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).
{¶6} R.C. 2907.05(A)(4) provides, in relevant part, that “[n]o person shall have sexual
contact with another, not the spouse of the offender * * * when * * * “[t]he other person * * * is
less than thirteen years of age, whether or not the offender knows the age of that person.” Sexual
contact “means any touching of an erogenous zone of another, including without limitation the
thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of
sexually arousing or gratifying either person.” R.C. 2907.01(B).
Sufficiency
{¶7} A review of the sufficiency of the evidence and the manifest weight of the
evidence adduced at trial are separate and legally distinct determinations. State v. Gulley, 9th
Dist. Summit No. 19600, 2000 WL 277908, *1 (Mar. 15, 2000). When reviewing the sufficiency
of the evidence, this Court must review the evidence in a light most favorable to the prosecution
to determine whether the evidence before the trial court was sufficient to sustain a conviction.
State v. Jenks, 61 Ohio St.3d 259, 279 (1991).
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.
Id. at paragraph two of the syllabus.
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{¶1} K.A.’s, R.A.’s and S.A.’s father died in 2010. Ultimately, the girls’ mother
(“Mother”) began dating Gordon, whom she knew from high school. The two began living
together and then married. Following the death of their father, K.A. and R.A. began going to
counseling to address some issues the girls developed. Mother also attended counseling. S.A.,
who was significantly younger, did not begin counseling until the fall of 2012. With counseling,
the concerns were improving until late 2014 or early 2015, when Mother noted some problems
with the girls. R.A. who was 8 at the time, began wetting the bed, and she had never done so in
the past. She also seemed more depressed. All three girls also began exhibiting sexual
behaviors, such as rubbing their genitals on the corners of furniture and masturbating. To
address these issues, Mother increased the counseling sessions to once a week, along with some
group therapy sessions. However, at this point Mother did not suspect the girls were sexually
abused; the counselor noted that sometimes the behaviors could be perfectly normal. Mother
testified that the family had been under financial stress during this time and that she was
expecting another child, a son. She averred that they had filed for bankruptcy and were planning
to give up the house. They expected to move out by the end of February. The girls knew about
it and were not happy. K.A. had also recently had surgery to correct a bladder issue.
{¶2} Mother did testify that, about a week prior to the girls coming forward with
allegations of sexual abuse, around 2:30 a.m., she had gone to the bathroom and noticed Gordon
coming upstairs from the basement followed by K.A., who was only in her bra and underwear.
When Mother asked Gordon about it, he said that K.A. wanted to spend some time with him and
that they were playing Legos. Mother was surprised by this because it was a school night.
{¶3} Mother also acknowledged that at some point, during the summer, K.A. had been
exposed to pornography. She indicated that the incident had occurred when she was babysitting
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other children at their home. The children were upstairs and K.A. was with them. When Mother
went upstairs to check on them they all got quiet. When K.A. and Mother went home, she
overheard K.A. asking R.A. if R.A. knew how to spell sex. When Mother questioned the girls,
K.A. told her that one of the children Mother babysat had showed her “some bad videos” and
told her a little bit about what was on the videos. Mother never saw the videos. Mother told the
counselor about it and the counselor discussed it with K.A.
{¶4} On February 8, 2015, the family was supposed to go to a party at Mother’s
parents’ house. However, K.A. was not feeling well. Gordon agreed to stay home with K.A. so
that Mother, R.A., and S.A. could go to the party. When Mother got home around 8 p.m., she
noticed that Gordon was in K.A.’s bed with her watching a movie. They were both clothed.
Nonetheless, Mother thought that was odd because Gordon had never done that before.
{¶5} The next morning, K.A. told her sisters that Gordon had licked her private spot.
R.A. reported this to Mother who proceeded to talk to each girl individually about whether
Gordon had abused them. R.A. and S.A. reported that Gordon had also touched them. Mother
was shocked by what she was told. When Gordon came home, she confronted him. He was very
calm, which, according to Mother was unusual, as he typically became very angry when
confronted with any type of allegations. Gordon told Mother that he would never do anything to
hurt the girls. Mother then had the girls repeat the allegations. At this point, Gordon stated that
if he did it, it was an accident.
{¶6} Mother then took the girls to her counselor and went to a couple stores. When she
came home, the girls’ counselor returned her phone call and told her that the counselor had to
report the incident and that Children Services would call her. Children Services called shortly
thereafter and told Mother she could not stay at the house with Gordon. Mother first took the
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girls to her sister’s house but later took them to her parents’ house. Children Services called the
police and Mother spoke with police the next day. Police told Mother to make an appointment
with the Children at Risk Evaluation (“CARE”) Center. Mother did so, and an appointment was
made for approximately two weeks later.
{¶7} The girls were interviewed and medically examined at the CARE center. The
videos of the interviews were admitted as exhibits and portions were played during trial. The
interviewer testified that she was trained to interview children and that she asks open-ended,
non-leading questions in her interviews. She stated that her role is to conduct a diagnostic
interview so that the children can receive any medical care they might need. She averred that the
girls did not display any indicators that they had been coached.
{¶8} During the interview, K.A. reported multiple instances of sexual abuse. With
respect to the incident that started the investigation, K.A. indicated that while she and Gordon
were in her bedroom, Gordon told her to take off her clothes, which she did, and he pulled down
her underwear. He told her to lie down on her back with her legs in the air and said he was going
to check her for rashes. Gordon then licked her vagina and told her that what happened was no
one else’s business. Additionally, K.A. discussed multiple incidents of Gordon putting his finger
up her vagina while they were watching TV and also incidents of him putting his finger in her
sisters’ vaginas. He also rubbed her vagina. K.A. also discussed an incident when she and
Gordon were in the basement and Gordon asked her to touch his private spot, which she stated
was his penis. K.A. said no and went to her room. She also described Gordon having his penis
exposed and moving his hand up and down.
{¶9} During her interview, R.A. indicated that Gordon touched her private spot a
couple times with his hand and that he rubbed her private spot. R.A. stated that she told him to
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please stop and he would, but then after a couple days he would touch her again. She described
her private spot as where pee comes out. R.A. stated that it would happen when Mother was
gone and while they would watch TV in Mother’s and Gordon’s room. She told the interviewer
that she also saw Gordon’s private spot a couple times.
{¶10} S.A., in her interview, stated that Gordon put his hand in her private spot and
tickled it while she was in her parents’ room while they were watching TV during a commercial.
She indicated it would happen when Mother was at the store or her sisters were not in the room
and that it happened twice. S.A. told the interviewer that Gordon would be naked that she would
see his private spot sticking up under the blanket. S.A. described her private spot as where she
pees and poops.
{¶11} The girls were also examined by Donna Abbott, a nurse practitioner. Ms. Abbott
testified that she did not utilize a rape kit because over 72 hours had passed since the last incident
of abuse. Thus, no DNA was collected. Ms. Abbott testified that she did not observe anything
abnormal during the physical exam, which she indicated was not uncommon in light of what the
girls reported had happened. She made an assessment of child sexual abuse with respect to all
three girls.
{¶12} After the CARE Center examinations, Detective Scott Rubes spoke with Mother
and instructed Mother on initiating a one-party consent phone call with Gordon in an attempt to
get Gordon to admit to the abuse. The phone call was played for the jury and admitted into
evidence. Mother told Gordon that she loved him and that she wanted to be able to stay with
him, but that she needed to know what happened, that Gordon was sorry, that it would not
happen again, and that he would get help. She testified that she lied to him in order to get
information from Gordon. During the phone call, Gordon stated that he may have accidentally
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touched the girls while tickling them. He denied licking K.A. and surmised that, if she felt
anything wet, it was probably his finger when he was examining her because she said she had a
rash that hurt. He also indicated that he was sorry and prayed for forgiveness. Later in the call,
he stated that what happened with R.A. and S.A. was an accident but indicated that K.A. asked
him to do it, although not blatantly. He testified that K.A. was curious about something she saw
in a movie, it was over her underwear, and that she really liked it. He told Mother that he
stopped, that he felt really bad, and would never do it again.
{¶13} Detective Rubes also interviewed Gordon, and a portion of that interview was
played for the jury. During the interview, Gordon appeared very tearful and expressed that he
was sorry. He agreed that he regretted touching the girls. He remembered feeling guilty and
indicated that it was just K.A. but he did not remember a lot. He remembered stopping and
saying he was sorry. He denied licking K.A.’s vagina and stated he was only looking to see if it
was inflamed following her surgery as she was complaining that she was in pain.
{¶14} Detective Rubes testified that he also obtained a warrant to search Gordon’s
phone for child pornography. He did so because he was concerned there may have been
evidence on the phones based upon comments Gordon made to his mother over phone calls that
were made while he was in Summit County Jail. No evidence, however, was obtained from the
phone. Detective Guy Sheffield was part of the computer forensics unit with the Akron Police
Department. Detective Sheffield was charged with recovering the stored data on the phone.
When Detective Sheffield received the phone, it was in working condition, however, it was pass
code protected. In the process of trying to recover the data, Detective Sheffield damaged the
phone and nothing could be obtained from it. Detective Sheffield sent the phone to the cyber
crimes unit at the Ohio Bureau of Criminal Investigation (“BCI”) to see if the data could be
9
recovered. BCI was unsuccessful in its recovery efforts and no information was obtained from
the phone.
{¶15} All three girls testified at trial. K.A. recounted multiple instances of abuse. She
stated that, one time, while she and Gordon were in the basement, he asked her to touch his
private part and she said no. She then stated that he “started to like put his finger up” and she
told him to stop and he kept doing it. When asked to describe what she meant, she stated that he
was “picking on [her] private part[]” with his finger. She also testified that there was a time in
her room while they were watching a movie when he told her to pull down her pants down in
order to check for infection and he licked her “private spot[.]” She also averred that there was an
instance when the three girls were roughhousing and Gordon told them to settle down. The girls
laid on him and K.A. stated that “he just st[u]ck his finger right up us.” K.A. identified Gordon
at trial.
{¶16} R.A. testified that, more than once, Gordon touched her “down in [her] private
spot[]” when she and Gordon were in her parents’ room on their bed. She would sometimes tell
him to stop but he would not. She indicated that he “would always pull down [her] clothes and
pull down his clothes.” R.A. stated that she uses her private spot to go to the bathroom. R.A.
also identified Gordon at trial.
{¶17} S.A. testified that, more than once, while she and Gordon were in her parents’
room watching TV, Gordon “touched [her] private spot” with his fingers under her underwear.
S.A. averred that Gordon was naked when this happened. She stated that she did not see his
private spot because it was under a blanket. S.A. was not asked to identify Gordon at trial.
{¶18} The girls’ counselors also testified about their sessions and the summaries of
those records were admitted into evidence. Jennifer Knobloch, who counseled K.A. and S.A.
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testified that, in April 2015, K.A. reported that, over the course of the last year, Gordon abused
her 20 to 30 times but only licked her once. At other sessions, K.A. told her counselor about
times that Gordon had touched her vagina. K.A. began having difficulty concentrating at school
and her grades dropped. Ms. Knobloch testified that such could be normal for a child
experiencing trauma. K.A. additionally reported that Gordon abused her sisters.
{¶19} Ms. Knobloch testified that during their sessions, S.A. also disclosed instances of
abuse. S.A. reported that, while she and Gordon were watching TV, there were two occasions
that he tickled her vagina under her underwear. She indicated that Gordon was naked on these
occasions. S.A. later described Gordon putting his hand in her pants and up her vagina. She
stated that he was naked and his private area was standing up under the blanket. She reported
that Gordon moved his hand around on his private area.
{¶20} Ms. Knobloch indicated that both girls began displaying boundary issues; Mother
had observed the girls inappropriately touching each other and the girls began exhibiting
sexualized play. S.A., who was five at the time, also had been caught masturbating and sticking
tissues up her vagina to make her sisters laugh. Ms. Knobloch explained that boundary issues
and prepubescent masturbation are common in children that have been sexually abused. Both
girls also expressed fears of Gordon, including what he would do during the time he was out on
bail.
{¶21} On cross-examination, Ms. Knobloch acknowledged that there were other
significant life changes happening in the girls’ lives. Mother moved in with her boyfriend in the
fall of 2015, whom she had only known for a short time. Additionally, K.A. witnessed a
domestic altercation between Mother’s boyfriend’s daughter and Mother that resulted in K.A.’s
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baby brother being hit with a cell phone. However, Ms. Knobloch opined that those incidents
would not have caused the sexualized behaviors that were reported.
{¶22} Sarah Cool, R.A.’s counselor, testified about their sessions. Initially, after the
disclosure of abuse, R.A. was reluctant to discuss the incidents during counseling. Ms. Cool
testified that in April 2015, Mother had reported to Ms. Cool that R.A. seemed depressed, had
been withdrawing, was urinating in her pants, and had been sucking her thumb. Ms. Cool told
Mother that those symptoms were typical symptoms after sexual abuse. In October 2015, R.A.
reported that Gordon “put his vagina in [her] vagina.” She stated that this happened a couple of
times when Mother was at the store and her sisters were in their room. R.A. had wanted to watch
TV with Gordon and he put her on her lap and “did that.” She told Gordon to stop once but he
did not say anything or stop. Additionally, R.A. recalled that one time, Gordon “sprayed pee in
[her] mouth and said it’s what babies eat[.]” She described the pee as being white in color.
R.A. also reported that the abuse started “a long time ago.” Like her sisters, R.A. also expressed
fear about Gordon being out on bail.
{¶23} Both counselors acknowledged that they accept what children tell them at face
value and that it is not their role to evaluate whether the children are being truthful.
{¶24} Gordon testified in his defense. He denied engaging in any sexual conduct with
K.A. or R.A. and denied having any sexual contact with any of the three girls. He described his
relationship with the girls as very solid. He stated that K.A. often complained of pain following
her bladder surgery, and that after she raised the issue with him a couple times, he decided to
“look and see if there [were] any issues with it.” He explained that when he would play with the
girls, often he would chase them around, they would jump on the bed, and then he would jump
on the bed and tickle them. Gordon surmised that the girls may have seen him naked the times
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when he came home around 3 or 4 in the morning and changed in his bedroom with the door
open. He stated that his bedroom was directly across from R.A.’s and S.A.’s room.
{¶25} With respect to February 9, 2015, Gordon indicated that he was “confused and
distraught” after Mother accused him of abusing the girls. He indicated that, when Mother asked
the girls to repeat the allegations, the girls did not really know what to say and did not really
convey anything. As to the one-party consent phone call, Gordon testified that he told Mother
what she wanted to hear and so he admitted to assaulting the girls. He indicated that he would
have said or done anything to keep his family together. He testified that he lied to both Mother
and to Detective Rubes in the interview in hopes that he could ultimately go home to his family.
Gordon opined that Mother may have coached the girls. He speculated that her motive could
have been related to their strained financial situation and/or because she might have wanted to
get Gordon out of the picture so that her new son could carry on her deceased husband’s family
name. Otherwise, he could think of no good reason why the girls would make up the
accusations.
{¶26} After reviewing the evidence in a light most favorable to the prosecution, we
conclude sufficient evidence was presented whereby a jury could conclude that Gordon engaged
in sexual conduct with K.A. and R.A. and that he had sexual contact with all three girls. See
R.C. 2907.02(A)(1)(b) and 2907.05(A)(4); see also State v. Pistawka, 9th Dist. Summit No.
27828, 2016-Ohio-1523, ¶ 16 (discussing that a trier of fact can infer that defendant’s purpose of
engaging in behavior was for sexual arousal or gratification based upon the type, nature, and
circumstances of the contact, and the personality of the defendant). There was evidence that
Gordon licked K.A.’s vagina, put his finger in it, and rubbed it. R.A.’s counselor testified that
R.A. told her that Gordon “put his vagina in [her] vagina” and “sprayed pee in [her] mouth and
13
said it’s what babies eat[.]” Additionally, R.A. testified that Gordon touched her private spot.
S.A. testified that Gordon “touched [her] private spot” with his fingers under her underwear.
{¶27} On appeal, Gordon has argued that his convictions must be reversed because
“there was no physical evidence linking [] Gordon to the crimes, the children did not personally
identify [] Gordon as the perpetrator during the trial, or were coached to say it was [] Gordon by
others; and that the children had been previously exposed to sexualized behavior by their
mother.” While Gordon’s arguments would seem more appropriately raised in the context of the
weight of the evidence, we will briefly address them here.
{¶28} Gordon has pointed to no case law requiring that the victims identify the
defendant in court in order for there to be sufficient evidence to support convictions for rape and
gross sexual imposition. Nonetheless, both K.A. and R.A. did identify Gordon in court as their
abuser. Further, the record is clear that the allegations of abuse all relate to conduct by Gordon.
{¶29} Gordon has also presented no case law establishing that physical evidence is
necessary to uphold convictions for rape and gross sexual imposition. See State v. Pemberton,
9th Dist. Lorain No. 05-CA-008660, 2005-Ohio-4659, ¶ 19 (noting that while physical evidence
would have strengthened the reliability of the victim’s statements, such was not required); State
v. Adams, 9th Dist. Lorain No. 05CA008685, 2005-Ohio-4360, ¶ 13; State v. West, 10th Dist.
Franklin No. 06AP-11, 2006-Ohio-6259, ¶ 16-17.
{¶30} Finally, Gordon argues that there was evidence that the girls were previously
exposed to pornography, and thus, the girls could have had knowledge of the sexual behaviors
discussed in their allegations outside of having actually experienced them. Thus, essentially, it
appears that Gordon argues that a reasonable fact finder could conclude that the girls lied
notwithstanding their knowledge of adult sexual behaviors. However, such an argument would
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relate to the credibility of the girls’ testimony, which is not an appropriate consideration in a
sufficiency discussion. See State v. Taylor, 9th Dist. Summit No. 27273, 2015-Ohio-403, ¶ 9.
The evidence discussed above, if believed, was sufficient to support a finding of guilt on the
charged offenses.
{¶31} Gordon’s second assignment of error is overruled.
Manifest Weight
{¶32} A conviction that is supported by sufficient evidence may still be found to be
against the manifest weight of the evidence. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997);
Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 12.
In determining whether a criminal conviction is against the manifest weight of the
evidence, an appellate court must review the entire record, weigh the evidence
and all reasonable inferences, consider the credibility of witnesses and determine
whether, in resolving conflicts in the evidence, the trier of fact 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). “When a court of appeals reverses a
judgment of a trial court on the basis that the verdict is against the weight of the evidence, the
appellate court sits as a ‘thirteenth juror’ and disagrees with the fact[-]finder’s resolution of the
conflicting testimony.” Thompkins at 387, quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982). An
appellate court should exercise the power to reverse a judgment as against the manifest weight of
the evidence only in exceptional cases. Otten at 340.
{¶33} We cannot say that S.A.’s failure to identify Gordon in court when she was not
asked to do so and the lack of physical evidence in light of the accusations support the
conclusion that Gordon’s convictions are against the manifest weight of the evidence. Gordon
focuses much of his argument on what he believes were faults and problems with the
investigative process. He notes that Mother did not immediately contact the police and instead
15
contacted a counselor. In addition, he points out that, even though Children Services and the
police were aware of the allegations within the 72-hour window during which potential DNA
evidence could have been collected, the girls were not medically examined until approximately
two weeks later. However, the absence of physical evidence does not negate the evidence
indicative of abuse, including the testimony of the girls, the video interviews of the girls, the
testimony of their counselors, and Gordon’s own admissions which were played for the jury.
While Gordon also notes some uncertainties in the girls’ testimony, the CARE Center
interviewer stated that young children often cannot recall exact timeframes or how often
something has happened in light of their brain development. The interviewer averred that it does
not concern her when children say that they do not know or do not remember details because
sexual abuse disclosures are difficult for children to talk about.
{¶34} Moreover, Gordon alleges that there was testimony that the girls practiced what to
say and such further evidenced that they were coached. However, upon clarification from the
prosecutor, it appears that the girls were not instructed what precisely to say, and instead were
told the most important thing to do was to tell the truth. Finally, Gordon again points to the fact
that K.A. was exposed to pornography and discussed it with her sisters as a basis to question the
veracity of the girls’ testimony. While it is possible that the exposure could have provided the
girls with knowledge of adult sexual behavior, we remain mindful that it is unclear what
precisely K.A. was exposed to, and what exactly she shared with her sisters. Further, K.A. and
her sisters could have seen pornographic images and nonetheless been sexually assaulted by
Gordon. Ultimately, the jury had to decide whether it found the girls to be credible. The jury
heard that the girls had a good relationship with Gordon and that they loved him. While the
family was under financial stress, there was no evidence that Mother had a strong compelling
16
reason to encourage the girls to fabricate the allegations. Instead, the jury heard Gordon
essentially admit to inappropriate conduct in the phone call and interview and then testify that he
had lied during the call and interview. We remain mindful that the jury had an opportunity to
view the witnesses and “was in the best position to assess the credibility of the evidence
presented by the parties at trial.” State v. Klingel, 9th Dist. Lorain No. 15CA010876, 2017-
Ohio-1183, ¶ 22. “[T]his Court will not overturn the [] verdict[s] on a manifest weight of the
evidence challenge simply because the jury chose to believe certain witnesses’ testimony.”
(Internal quotations and citations omitted.) State v. Binford, 9th Dist. Summit No. 27950, 2016-
Ohio-7678, ¶ 10. After a thorough and independent review of the entire record, we cannot say
that a manifest miscarriage of justice occurred when the jury found Gordon guilty of the charged
offenses.
{¶35} Gordon’s third assignment of error is overruled.
ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ALLOWING
THE STATE TO INTRODUCE INTO EVIDENCE A PRIVATE RECORDED
PHONE CALL BETWEEN A HUSBAND AND A WIFE IN VIOLATION OF
THE SPOUSAL IMMUNITY STATUTE.
{¶36} Gordon argues in his first assignment of error that the trial court committed
reversible error in allowing the State to play the one-party consent phone call between Mother
and Gordon in violation of the spousal privilege statute. The State introduced the call into
evidence through Mother’s testimony. On appeal, Gordon has not challenged Mother’s
testimony about the phone call, only the introduction of the phone call itself.
{¶37} We begin by noting that Gordon has only raised issues of spousal privilege, not
spousal competency. See State v. Wilson, 3d Dist. Putnam No. 15-05-20, 2006-Ohio-2000, ¶ 10
(discussing the difference). R.C. 2945.42 governs the availability and extent of the spousal
17
privilege in criminal cases. See id. at ¶ 11. “The R.C. 2945.42 privilege belongs to the
nontestifying spouse.” State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, ¶ 112. R.C.
2945.42 provides in relevant part that:
Husband or wife shall not testify concerning a communication made by one to the
other, or act done by either in the presence of the other, during coverture, unless
the communication was made or act done in the known presence or hearing of a
third person competent to be a witness, or in case of personal injury by either the
husband or wife to the other, or rape or the former offense of felonious sexual
penetration in a case in which the offense can be committed against a spouse, or
bigamy, or failure to provide for, or neglect or cruelty of either to their children
under eighteen years of age or their physically or mentally handicapped child
under twenty-one years of age, violation of a protection order or consent
agreement, or neglect or abandonment of a spouse under a provision of those
sections. The presence or whereabouts of the husband or wife is not an act under
this section. The rule is the same if the marital relation has ceased to exist.
The purpose of the statute is “to promote marital peace[.]” (Emphasis omitted.) State v.
Mowery, 1 Ohio St.3d 192, 198 (1982). “The general thrust of judicial policy is to construe
statutory privileges narrowly: [T]hey impede the search for truth and contravene the principle
that the public has a right to everyone’s evidence.” (Internal quotations and citations omitted.)
State v. Nowlin, 5th Dist. Muskingum No. CT2012-0015, 2012-Ohio-4923, ¶ 41.
{¶38} Gordon’s counsel filed a motion in limine to exclude the phone call and objected
to its presentation to the jury at trial. The trial court denied the motion concluding that the
parties were not living in coverture, that the communication was not confidential, and that the
communication fell within the exception concerning neglect or cruelty to the children.
{¶39} We note that the Ohio Supreme Court has concluded that the admission of spousal
communications, such as recorded jailhouse phone calls between the spouses, introduced by
means other than the other spouse’s testimony, does not violate R.C. 2942.42. See Perez at ¶
122. Accordingly, there is an argument that the introduction of the phone call itself in this case
would not amount to testimony as contemplated by Perez. See id. at ¶ 110-122. However,
18
because the phone call was introduced via Mother’s testimony, it is arguable that its admission
could nonetheless violate R.C. 2945.42. See id. at ¶ 122 (holding that, “[b]ecause the jailhouse
conversations were not introduced by way of [Wife’s] testimony, * * * their admission did not
violate R.C. 2945.42[]”) (Emphasis added.).
{¶40} Even assuming that the spousal privilege was otherwise applicable, we note that
other courts have previously concluded that acts of sexual assault against children under the age
of 18 can fall within the neglect or cruelty exception. See State v. Chaney, 3d Dist. Seneca No.
13-07-30, 2008-Ohio-3507, ¶ 30; Wilson at ¶11-13; State v. Munguia, 6th Dist. Lucas No. L-88-
144, 1989 WL 116909, *4 (Oct. 6, 1989); State v. Berezoski, 2d Dist. Montgomery No. 9568,
1986 WL 14770, *37 (Dec. 17, 1986). While not expressly addressing the issue of whether
sexual assaults amounted to neglect or cruelty, this Court implicitly agreed that it did in State v.
Paxton, 9th Dist. Lorain No. 91CA005011, 1991 WL 156562, *1 (Aug. 14, 1991). Therein, we
concluded that, in a case involving the rape of the defendant’s step-child, the language “neglect
or cruelty of either to their children under eighteen years of age” included step-children, and
affirmed the trial court’s decision allowing the testimony of the wife. Id.{¶41} Further, even if this Court were to conclude that the evidence was privileged and
inadmissible, Gordon has failed to demonstrate that the error was not harmless. See Crim.R.
52(A). In addition to the admissions made during the phone call with his wife, Gordon made
similar admissions during his interview with police. The admissibility of that interview has not
been challenged on appeal.
{¶42} Given all of the foregoing, we conclude no reversible error occurred and overrule
Gordon’s first assignment of error.
19
ASSIGNMENT OF ERROR IV
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR
WHEN IT SENTENCED MR. GORDON WITHOUT PROPERLY GIVING
HIM ALL THE REQUIRED NOTIFICATIONS AS REQUIRED BY R.C.
2929.19(B)(4) AND CONCERNING POST-RELEASE CONTROL.
{¶43} Gordon argues in his fourth assignment of error that the trial court erred when it
failed to provide the required post-release control notifications at the sentencing hearing.
Specifically, Gordon asserts that the trial court did not inform him of the mandatory nature of
post-release control and failed to include the consequences of violating post-release control
outlined in R.C. 2929.141(A)(1). While Gordon also discusses community control notification
issues in the body of his argument, Gordon was not subject to community control and those
arguments will be disregarded.
{¶44} This Court has held that
[I]n order to comply with separation-of-powers concerns and to fulfill the
requirements of the post[-]release-control-sentencing statutes, * * * a trial court
must provide statutorily compliant notification to a defendant regarding post[-
]release control at the time of sentencing. This includes notifying the defendant
of the details of the post[-]release control and the consequences of violating post[-
]release control. The trial court must also incorporate into the sentencing entry
the post[-]release-control notice to reflect the notification that was given at the
sentencing hearing[,] which includes incorporating the consequences of violating
post-release control.
(Internal quotations omitted.) State v. Adams, 9th Dist. Lorain No. 14CA010709, 2016-Ohio-
336, ¶ 6. “[W]hen a trial court fails to properly impose post-release control, that portion of its
sentence is void and only the offending portion of the sentence is subject to review and
correction.” (Internal quotations and citations omitted.) State v. West, 9th Dist. Summit No.
28051, 2016-Ohio-5694, ¶ 6.
{¶45} At the sentencing hearing, the trial court told Gordon that, “if you were to ever get
out of prison, when you are released, you will be on five years of post-release control.” Gordon
20
argues that this notification is non-compliant because it does not use the word mandatory. It is
true that Gordon would be subject to five years of mandatory post-release control if he were
released from prison. See R.C. 2967.28(B)(1). However, we conclude that the trial court’s use
of the word “will” informed Gordon of the mandatory nature of his term of post-release control.
See State v. Grimes, Slip Opinion No. 2017-Ohio-2927, ¶ 9 (“The court at a sentencing hearing
must notify the offender that he or she ‘will’ or ‘may’ ‘be supervised under section 2967.28 of
the Revised Code after the offender leaves prison if the offender is being sentenced for’ a felony.
R.C. 2929.19(B)(2)(c) and (d).”); State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, ¶ 68
(“Despite any differences between R.C. 2929.191 and our holdings in Jordan, Hernandez, and
Cruzado, at their core, each fundamentally requires a court imposing mandatory post[-]release
control to include in the sentencing entry a statement that an offender convicted of a first-or
second-degree felony offense will be subject to post[-]release control after leaving prison.”)
(Emphasis sic.); see also State v. Martin, 9th Dist. Summit No. 24534, 2009-Ohio-4338, ¶ 5
(noting that use of the word “may” in the sentencing does not “clearly indicate that Martin will
be subject to a mandatory term of post-release control of three years[]”); State v. Rucker, 1st
Dist. Hamilton No. C-150434, 2016-Ohio-5111, ¶ 7 (“The trial court’s statement to Rucker that
‘you’ll be on a period of supervision’ was sufficient to notify Rucker of the mandatory nature of
his post[-]release control.”).
{¶46} With respect to whether the trial court was required to notify Gordon at the
sentencing hearing of the consequences of violating post-release control outlined in R.C.
2929.141(A)(1), we note that districts are split on the issue and it is currently being reviewed by
the Supreme Court of Ohio. See State ex rel. Cornwall v. Sutula, 148 Ohio St.3d 536, 2016-
21
Ohio-7652, ¶ 10 (acknowledging the split); State v. Brown, 147 Ohio St.3d 1473, 2016-Ohio-
8438.
{¶47} The Supreme Court summarized the issue as follows: “Whether the post-release
control notification of R.C. 2929.19(B)(2)(e) must include notification of the penalty provisions
in R.C. 2929.141(A)(1)-(2), specifically, whether a trial court must inform an offender at the
time of sentencing that the commission of a felony during a period of post-release control
permits a trial court to impose a new prison term for the violation to be served consecutively
with any prison term for the new felony.” Brown. It is important to note that R.C.
2929.19(B)(2)(e) contains a notification requirement, whereas R.C. 2929.141(A) contains no
such requirement.
{¶48} Recently, in Grimes, in analyzing what the trial court is required to include in a
sentencing entry with respect to post-release control, the Supreme Court also discussed the post-
release control notifications required at the sentencing hearing. See Grimes, Slip Opinion No.
2017-Ohio-2927, at ¶ 9. Notably, the discussion did not include R.C. 2929.141(A).
{¶49} This Court has not precisely addressed the issue, although we have spoken on the
topic in other contexts. In State v. McDowell, 9th Dist. Summit No. 26697, 2014-Ohio-3900, the
defendant asked this Court to conclude that, in order for him to be sentenced to an additional 12
months for violating post-release control, the jury had to find that he was in fact on post-release
control. See id. at ¶ 12. In discussing the issue, we stated:
When an offender commits a felony during a period on post-release control, R.C.
2929.141(A)(1) permits a trial court to terminate post-release control and impose
a new prison term for the violation of post-release control to be served
consecutively with any prison term imposed for the new felony. R.C.
2929.141(A)(1). A trial court must inform an offender at the time of sentencing
that this consequence may follow from a violation of post-release control. R.C.
2929.19(B)[(2)](e).
22
Id. at ¶ 13.
{¶50} To the extent this Court stated that R.C. 2929.19(B) required a notification
concerning the consequences in R.C. 2929.141(A)(1), the language was dicta and not essential to
our holding. Further, in light of the language in Grimes, Slip Opinion No. 2017-Ohio-2927, at ¶
9, we are not inclined to expand the reach of McDowell. Subsequently, in State v. Mundy, 9th
Dist. Medina No. 15CA0001-M, 2016-Ohio-4685, ¶ 12, a case involving a motion to vacate a
void sentence following a direct appeal, this Court concluded that, because R.C. 2929.141(A)(1)
does not include a mandatory notification requirement, “the trial court’s failure to discuss R.C.
2929.141 at the 2010 sentencing hearing [did] not render Mundy’s sentence void.” Id. In so
doing, this Court relied on opinions from the Eighth, Twelfth, and Seventh Districts. See id. In
light of the absence of a notification requirement in R.C. 2929.141(A), we continue to hold that a
trial court’s failure to give an advisement at the sentencing hearing pertaining to the penalties
contained in R.C. 2929.141(A) does not render the sentence void, and we additionally conclude
that it is not reversible error. While “the better practice would be to include notification of the
potential implications of R.C. 2929.141 when notifying defendants of the other potential
implications of post[-]release control[]” under the current state of the law, we cannot say that
doing so is required. State v. Mullins, 12th Dist. Butler No. CA2007-01-028, 2008-Ohio-1995, ¶
14.
{¶51} Gordon’s fourth assignment of error is overruled.
ASSIGNMENT OF ERROR V
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR
WHEN IT SENTENCED DEFENDANT TO CONSECUTIVE TERMS
WITHOUT STRICTLY COMPLYING WITH R.C. 2929.14(C).
23
{¶52} Gordon argues in his fifth assignment of error that the trial court erred when it
sentenced him to consecutive prison terms without complying with R.C. 2929.14(C). This Court
agrees.
{¶53} “The Supreme Court of Ohio in State v. Bonnell held that, ‘[i]n 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
entry, but it has no obligation to state reasons to support its findings.’” State v. Redmyer, 9th
Dist. Medina No. 15CA0012-M, 2017-Ohio-572, ¶ 17, quoting Bonnell, 140 Ohio St.3d 209,
2014-Ohio-3177, at syllabus.
{¶54} R.C. 2929.14(C)(4) states:
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.
(c) The offender’s history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by the offender.
{¶55} Here, while the trial court included the required findings in the sentencing entry, it
failed to make those findings at the sentencing hearing. “When a trial court imposes consecutive
sentences without making the R.C. 2929.14(C)(4) findings at the sentencing hearing, the remedy
24
is to remand the matter for resentencing.” State v. Williams, 9th Dist. Medina No. 14CA0072-M,
2015-Ohio-2197, ¶ 9. Accordingly, Gordon’s fifth assignment of error is sustained and the
matter is remanded for resentencing.
ASSIGNMENT OF ERROR VI
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN
SENTENCING MR. GORDON FOR GROSS SEXUAL IMPOSITION AS A
FELONY OF THE THIRD DEGREE INSTEAD OF A FELONY OF THE
FOURTH DEGREE, BECAUSE THE JURY VERDICT FORM DID NOT
INCLUDE THE DEGREE OF THE OFFENSE, NOR ANY AGGRAVATING
ELEMENTS.
ASSIGNMENT OF ERROR VII
MR. GORDON WAS DENIED HIS CONSTITUTIONAL RIGHT TO
EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL WHEN HIS TRIAL
COUNSEL FAILED TO ARGUE THAT THE TRIAL COURT SHOULD HAVE
SENTENCED MR. GORDON FOR GROSS SEXUAL IMPOSITION AS A
FOURTH DEGREE FELONY.
{¶56} Gordon argues in his sixth assignment of error that the trial court committed plain
error in sentencing him for gross sexual imposition as a felony of the third degree instead of a
felony of the fourth degree when the verdict form did not include the degree of the offense or any
aggravating factors. Gordon argues in his seventh assignment of error that he was denied the
effective assistance of counsel when trial counsel failed to argue that Gordon should have been
sentenced for gross sexual imposition as a fourth degree felony.
{¶57} Pursuant to Crim.R. 52(B), “[p]lain errors or defects affecting substantial rights
may be noticed although they were not brought to the attention of the court.” “To constitute
plain error, the error must be obvious and have a substantial adverse impact on both the integrity
of, and the public’s confidence in, the judicial proceedings.” Klingel, 2017-Ohio-1183, ¶ 29. “A
reviewing court must take notice of plain error only with the utmost caution, and only then to
prevent a manifest miscarriage of justice.” Id. “This Court may not reverse the judgment of the
25
trial court on the basis of plain error, unless appellant has established that the outcome of trial
clearly would have been different but for the alleged error.” Id.{¶58} Gordon’s argument is based upon State v. Pelfrey, 112 Ohio St.3d 422, 2007-
Ohio-256 and R.C. 2945.75(A)(2) . “In [Pelfrey], the Supreme Court of Ohio determined that
‘[p]ursuant to the clear language of R.C. 2945.75, a verdict form signed by a jury must include
either the degree of the offense of which the defendant is convicted or a statement that an
aggravating element has been found to justify convicting a defendant of a greater degree of a
criminal offense.’” State v. Hasenyager, 9th Dist. Summit No. 27756, 2016-Ohio-3540, ¶ 24,
quoting Pelfrey at syllabus. “‘Otherwise, a guilty verdict constitutes a finding of guilty of the
least degree of the offense charged.’” Hasenyager at ¶ 24, quoting R.C. 2945.75(A)(2). “Pelfrey
applies when ‘the presence of one or more additional elements makes an offense one of more
serious degree.’” State v. Edwards, 9th Dist. Lorain No. 12CA010274, 2013-Ohio-3068, ¶ 34,
quoting R.C. 2945.75(A).
{¶59} Gordon argues that, because the verdict forms in the instant matter did not state
the degree of the offense or include any aggravating elements, he should have been sentenced to
fourth degree felony gross sexual imposition, as that is the least degree of gross sexual
imposition.
{¶60} Gordon was found guilty of violating three counts of R.C. 2907.05(A)(4). A
violation of R.C. 2907.05(A)(4) is a felony of the third degree. R.C. 2907.05(C)(2). This Court
has previously concluded that “[t]here are no additional elements that will enhance this offense
to a higher degree. R.C. 2907.05 does contain other subsections, but each has their own separate
elements. * * * Failure to prove any of the[] elements would have resulted in an acquittal, not a
conviction of a lesser degree of gross sexual imposition.” Hasenyager at ¶ 27, quoting Edwards
26
at ¶ 35. Thus, Pelfrey and R.C. 2945.75(A)(2) are inapplicable to convictions for violations of
R.C. 2907.05(A)(4). Hasenyager at ¶ 27; Edwards at ¶ 36.
{¶61} Therefore, based upon Gordon’s arguments, he has not demonstrated any error, let
alone plain error. See Hasenyager at ¶ 27.
{¶62} Gordon’s sixth assignment of error is overruled.
{¶63} With respect to Gordon’s claim of ineffective assistance of counsel, as we
concluded above that the trial court did not err in sentencing Gordon to a third degree felony,
trial counsel likewise was not ineffective in failing to object to the trial court’s sentence on that
basis. See State v. Daniels, 9th Dist. Summit No. 26406, 2013-Ohio-358, ¶ 15.
{¶64} Gordon’s seventh assignment of error is overruled.
III.
{¶65} Gordon’s first through fourth, sixth, and seventh assignments of error are
overruled. Gordon’s fifth assignment of error is sustained and the matter is remanded for
proceedings consistent with this opinion.
Judgment affirmed in part,
reversed in part,
and cause remanded.
There were reasonable grounds for this appeal.
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
27
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 equally to both parties.
DONNA J. CARR
FOR THE COURT
SCHAFER, P. J.
TEODOSIO, J.
CONCUR.
APPEARANCES:
NEIL P. AGARWAL, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.