State v. Hale , 2012 Ohio 2662 ( 2012 )

[Cite as State v. Hale, 2012-Ohio-2662.]
IN THE COURT OF APPEALS OF CLARK COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 11CA0033
vs. : T.C. CASE NO. 10CR103
DOUG HALE : (Criminal Appeal from
Common Pleas Court)
Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 15th day of June, 2012.
. . . . . . . . .
Andrew Wilson, Pros. Attorney; Lisa M. Fannin, Atty. Reg. No.
0082337, Asst. Pros. Attorney, 50 E. Columbia Street, 4th floor,
P.O. Box 1608, Springfield, Ohio 45501
Attorneys for Plaintiff-Appellee
Antony A. Abboud, Atty. Reg. No. 0078151, 130 W. Second Street,
Suite 1818, Dayton, Ohio 45402
Attorney for Defendant-Appellant
. . . . . . . . .
GRADY, P.J.:
{¶ 1} Defendant, Doug Hale, appeals from his convictions for multiple sex offenses,
which were entered on guilty verdicts returned by a jury. Defendant was sentenced to a
prison term of from fifteen years to life. He filed a notice of appeal, and presents three
assignments of error for review.
2
FIRST ASSIGNMENT OF ERROR
{¶ 2} “THE GUILTY VERDICT(S) AGAINST THE DEFENDANT-APPELLANT
WERE NOT SUPPORTED BY THE SUFFICIENCY OF THE EVIDENCE.”
{¶ 3} We begin by identifying our standard of review with respect to the error
assigned, which is applicable in relation to the presumption of correctness final judgments of
the trial courts are afforded.
{¶ 4} “Sufficiency” of the evidence refers to its logical capacity to demonstrate both
the criminal conduct and the culpable mental state that the alleged criminal liability requires.
The test is whether all or some part of the evidence that was admitted in the trial would, if
believed, convince the average mind beyond a reasonable doubt that the defendant is guilty of
committing the offense charged. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),
paragraph two of the syllabus.
{¶ 5} Defendant was convicted of two counts of Rape, R.C. 2907.02, two counts of
Gross Sexual Imposition, R.C. 2907.05(A)(4), two counts of Sexual Battery, R.C.
2907.03(A)(5), two counts of Corrupting Another With Drugs, R.C. 2925.02(A)(4)(a), and
two counts of Sexual Imposition, R.C. 2907.06(A)(1). The Sexual Battery offenses were
merged with the Rape offenses pursuant to R.C. 2941.25.
{¶ 6} Defendant denied committing the offenses of which he was convicted. On
appeal, he argues that the State’s evidence was therefore legally insufficient to support his
convictions because that evidence consisted of accusations by the victims unsupported by
corroborating evidence. We find these contentions to themselves be insufficient to support
the error Defendant assigns.
3
{¶ 7} A criminal conviction must be supported by evidence which, if believed, is
sufficient on its face to prove every essential element of the offense charged beyond a
reasonable doubt. To overcome the presumption of correctness which the conviction is
afforded, a defendant who argues on appeal that the evidence was insufficient to support his
conviction bears the burden of identifying on which essential element or elements of the
offense or offenses the evidence was insufficient. To accomplish that, the
defendant-appellant’s brief on appeal must set out “[a]n argument containing the contentions
of the appellant with respect to each assignment of error presented for review and the reasons
in support of the contentions, with citations to the authorities, statutes and parts of the record
on which appellant relies.” App.R. 16(A)(7).
{¶ 8} Other than a few desultory references to inconclusive matters in the record,
Defendant’s brief on appeal is wholly lacking in arguing a basis for the error he assigns. We
are then left to surmise why and how the State’s evidence was insufficient, perhaps by
reviewing the seven hundred page evidentiary transcript ourselves to determine whether the
State’s evidence was sufficient. That is not an acceptable alternative to Defendant’s failure to
present a basis on which the presumption of correctness is rebutted. On the argument
presented, the presumption that Defendant’s convictions were supported by sufficient
evidence is not rebutted.
{¶ 9} The first assignment of error is overruled.
SECOND ASSIGNMENT OF ERROR
{¶ 10} “THE VERDICT(S) AGAINST THE DEFENDANT-APPELLANT WAS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
4
{¶ 11} “Weight” of the evidence refers to the inclination of the greater amount of the
credible evidence presented in a trial to prove the issue established by the verdict that was
reached. State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997). The test is
whether that evidence is capable of inducing belief in its truth, and whether those truths
preponderate in favor of the verdict according to the applicable burden of proof. Id.{¶ 12} Defendant makes the same arguments in support of this assignment of error;
that because he denied the charges, the State’s evidence consisting of the uncorroborated
allegations of the victims was unpersuasive. Defendant fails to explain how that evidence
was unpersuasive of its truth or why those truths fail to preponderate in favor of his
convictions.
{¶ 13} With respect to one of the two Sexual Imposition convictions, Defendant
points to the testimony of the victim, A.V., who when asked, “Did he grope or grab your
crotch at all?”, replied, “I can’t remember him doing that; but there might have been a time
that he did it; but I really can’t remember.” (Tr. 376).
{¶ 14} The question and A.V.’s response followed her testimony that Defendant made
highly inappropriate sexual remarks when the two were together in a car. When asked what
else happened, A.V. testified:
A. He would reach over and touch my breasts or if we would – he
would do the same – like if I was to get up like the way the couch was set up,
the couch – there was a coffee table in front of it, and the recliner was right
next to the coffee table; and if I would get up to go toward the kitchen and I
would try to climb over, you know I mean, walk past him, he would slap my
5
butt or something like that; or he would pinch the inside of my leg.
Q. Did he grope or grab at your crotch at all?
A. I can’t remember his doing that; but there might have been a time
that he did it; but I really can’t remember.
Q. When he would do this, when he would grab your boobs or, you
know, smack your butt or pinching the inside of your leg, would he say
anything to you when he would do those things?
A. The same things, just . . .
Q. Same type of stuff that you already talked about?
A. Yeah.
Q. How did you play it off when he would actually touch you?
A. I would just kind of, you know what I mean, push away, laugh it
off, because I didn’t really know how to react to it in the first place. Nobody
had ever done that to me; and like I said, he was – yeah, want to make a big
deal of it and him being like my father, I wanted to keep thinking of him like
that.
Q. And you liked him, right?
A. Yes. I loved him as my dad. I really did.
Q. And at this point, were you scared to do anything else to upset the
family or upset Doug?
A. (Nods head.) Yes. (Tr. 376-377).
6
{¶ 15} A.V.’s lack of recollection with respect to the specific question she was asked
by the prosecutor neither contradicts nor undermines her other testimony. Further, that
testimony was capable of inducing belief in its truth, and those truths preponderate in favor of
Defendant’s conviction for Sexual Imposition because they demonstrate that Defendant had
sexual contact with A.V., knowing that it was offensive to A.V. or being reckless in that
regard. R.C. 2907.06(A)(1). “‘Sexual contact’ means any touching of an erogenous zone of
another, including without limitation the thigh, . . . buttock, . . . or, if the person is a female, a
breast, for the purpose of sexually arousing or gratifying either person.” R.C. 2907.01(B).
{¶ 16} The second assignment of error is overruled.
THIRD ASSIGNMENT OF ERROR
{¶ 17} “THE TRIAL COURT MADE A SENTENCING ERROR BY NOT
MERGING COUNTS ONE AND TWO, TOGETHER WITH COUNTS THREE, FOUR,
FIVE AND SIX.”
{¶ 18} R.C. 2941.25 provides:
{¶ 19} (A) Where the same conduct by defendant can be construed to constitute two
or more allied offenses of similar import, the indictment or information may contain counts
for all such offenses, but the defendant may be convicted of only one.
{¶ 20} (B) Where the defendant’s conduct constitutes two or more offenses of
dissimilar import, or where his conduct results in two or more offenses of the same or similar
kind committed separately or with a separate animus as to each, the indictment or information
may contain counts for all such offenses, and the defendant may be convicted of all of them.
{¶ 21} When determining whether two offenses are allied offenses of similar import
7
subject to merger, the court must ask (1) whether it is possible to commit one offense and
commit the other with the same conduct, and, if the multiple offenses can be committed with
the same conduct, (2) whether the offenses were committed by the same conduct. If the
answer to both questions is yes, the offenses are allied offenses of similar import and will be
merged. State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. When
convictions are merged, the defendant may be sentenced for but one. State v. Whitfield, 124
Ohio St.3d 319, 2010-Ohio–2, 922 N.E.2d 182.
{¶ 22} All of the offenses charged in the indictment were alleged to have occurred
between February 24 and November 26, 2008. Defendant argues that the two Gross Sexual
Imposition offenses charged in counts three and five and the two Sexual Battery offenses
charged in counts four and six must therefore merge pursuant to R.C. 2941.25 because they
were committed with the same animus.
{¶ 23} The object of the sex offenses prohibited by R.C. chapter 2907 is the sexual
gratification of the actor and/or the victim, and in those respects those offenses share the same
animus. Further, it is indisputably possible to commit the same statutory offenses by
engaging in the same conduct. However, the further and more specific issue an allied
offenses claim presents is whether the offenses were committed by the same conduct.
Johnson. The fact that the offenses were committed within the same span of time, or even on
the same date, is not conclusive of that issue.
{¶ 24} A defendant who argues on appeal that the trial court erred by not merging
multiple offenses bears the burden to show not only that the offenses are allied offenses
pursuant to R.C. 2941.25(A), but also that neither of the exceptions to merger of allied
8
offenses in R.C. 2941.25(B) applies. Merger is avoided by R.C. 2941.25(B) when the
offenses were “committed separately” by not engaging in the same conduct to commit them.
{¶ 25} Defendant does not argue that any of the offenses he claims must merge were
committed by engaging in the same conduct. Absent that commonality, and even when they
share the same animus, merger of two or more violations of the same statutory offense is not
mandated by R.C. 2941.25. Johnson.
{¶ 26} The third assignment of error is overruled. The judgment of the trial court
will be affirmed.
FROELICH, J., And HARSHA, J., concur.
(Hon. William H. Harsha, Fourth District Court of Appeals, sitting by assignment of the Chief
Justice of the Supreme Court of Ohio.)
Copies mailed to:
Lisa M. Fannin, Esq.
Antony A. Abboud, Esq.
Hon. Richard J. O’Neill