State v. Parker , 2015 Ohio 4101 ( 2015 )

[Cite as State v. Parker, 2015-Ohio-4101.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 13 MA 161
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
WILLIE PARKER )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Mahoning County,
Ohio
Case No. 2012 CR 723
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Paul J. Gains
Mahoning County Prosecutor
Atty. Ralph M. Rivera
Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant: Atty. Rhys B. Cartwright-Jones
42 N. Phelps St.
Youngstown, Ohio 44503-1130
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Carol Ann Robb
Dated: September 30, 2015
[Cite as State v. Parker, 2015-Ohio-4101.]
WAITE, J.
{¶1} Appellant Willie Parker appeals a Mahoning County Common Pleas
Court conviction following jury trial on two counts of rape and twenty counts of gross
sexual imposition (“GSI”). The indictment charged Appellant with twenty counts of
rape and twenty counts of GSI for alleged acts that occurred over the course of two
years. Appellant argues that the indictment failed to present sufficient details as to
which facts correlated with which charge. Additionally, Appellant contends that the
lengthy timespan of the alleged acts was not properly narrowed. Appellant was
provided with a bill of particulars which supplemented the indictment and provided
sufficient details of the allegations. As we held in State v. Billman, 7th Dist. Nos. 12
MO 3, 12 MO 5, 2013-Ohio-5774, an otherwise sufficient indictment is not made
insufficient when exact dates of incidents alleged to occur over an extended period of
time are not provided, so long as specific dates and times do not constitute elements
of the offense.
{¶2} Appellant also argues that the indictment charged him with an “absurd”
number of counts. However, Billman, supra, also holds that no inherent defect exists
when a defendant is charged with numerous counts of the same offense over a
defined period of time. Finally, Appellant challenges his conviction both as against
the sufficiency of the evidence and its manifest weight. Although the parties’
witnesses presented somewhat conflicting stories, even the defense witnesses
appeared to corroborate the victim’s accusations. As the record is devoid of any
evidence that the jury clearly lost its way in a manner creating a manifest injustice,
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we will not disturb its verdict. Accordingly, Appellant’s arguments are without merit
and the judgment of the trial court is affirmed.
Factual and Procedural History
{¶3} The victim in this matter is Appellant’s goddaughter as well as his
daughter’s former best friend. While the victim was in seventh and eighth grade,
Appellant would pick up his daughter, the victim and another girl from school and
drive them to his house. In the late evening, he would drive the victim and her friend
home, first dropping the friend off so that he and the victim remained alone in the car.
{¶4} While driving the victim home, he would pull his car off to the side of the
road and perform various sexual acts on her. Specifically, she accused him of
kissing her, touching her breasts, and inserting his finger into her vagina. The victim
alleged that these acts occurred on more than twenty occasions from September 1,
1999 until September 28, 2001. The victim stated that the abuse ended when she
and Appellant’s daughter had a falling out and she no longer visited Appellant’s
home.
{¶5} The victim never spoke of the incident until she was 21 years old. At
that time, she began suffering from non-epileptic seizures and was treated at the
Cleveland Clinic. During one visit to the clinic, the victim began crying and told her
mother that Appellant had hurt her, but she then had a seizure and stopped talking.
She never provided her mother with details, but began to see a therapist. While at
the therapist’s office, the victim noticed a flyer advertising a group for sexual assault
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victims. When she inquired about the group, the therapist asked her if she had been
sexually abused, and the victim answered in the affirmative.
{¶6} The therapist referred the victim to the group. Shortly thereafter, the
victim learned that the statute of limitations had not run. She filed a police report
accusing Appellant of sexual abuse. After interviewing the victim and Appellant, the
state charged Appellant with twenty counts of rape, a felony of the first degree, and
twenty counts of GSI, a felony of the fourth degree. Following jury trial, Appellant
was convicted on two counts of rape and twenty counts of GSI. He was sentenced to
ten years per rape count, to be served concurrently, and eighteen months per gross
sexual imposition charge, also to be served concurrently. The sentences for rape
and GSI were ordered to run consecutively, for an aggregate total of eleven and a
half years of incarceration. Appellant filed a timely appeal.
First Assignment of Error
The trial Court erred in allowing the case to proceed based on an
indictment that assured convictions in violation of the double jeopardy
clauses of the U.S. and Ohio Constitutions.
{¶7} As only about half of the states have grand jury proceedings, the “Fifth
Amendment right to a grand jury does not apply to state prosecutions.” Billman,
supra, at ¶20, citing State v. Fulton, 57 Ohio St.2d 120, 122, 566 N.E.2d 1195 (1981);
Miller and Wright, Criminal Procedures: Prosecution and Adjudication, 207-213 (3rd
Ed. Aspen Ed. Wolters Kluwer 2007.) Thus, our discussion will be limited to
applicable Ohio law.
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{¶8} In Ohio, a person accused of a felony is “entitled to an indictment
setting forth the ‘nature and cause of the accusation’ pursuant to Section 10, Article I
of the Ohio Constitution.” State v. Sellards, 17 Ohio St.3d 169, 170, 478 N.E.2d 781(1985).
{¶9} An indictment [or information] is sufficient “if it can be understood
therefrom”:
(A) That it is entitled in a court having authority to receive it, though the
name of the court is not stated;
(B) If it is an indictment, that it was found by a grand jury of the county
in which the court was held; * * *
(C) That the defendant is named, * * *
(D) That an offense was committed at some place within the
jurisdiction of the court, * * *
(E) That the offense was committed at some time prior to the time of
finding of the indictment * * *.
State v. Billman, 7th Dist. Nos. 12 MO 3, 12 MO 5, 2013-Ohio-5774, ¶21.
{¶10} Several Ohio statutes also address indictments. Crim.R. 7 requires an
indictment to contain the identifying number of the charged statutory violation. R.C.
2941.08 lists ten types of defects that will not affect an indictment’s validity. These
include: “omitting to state the time at which the offense was committed, in a case in
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which time is not of the essence of the offense,” “stating the time imperfectly,” and
“other defects or imperfections which do not tend to prejudice the substantial rights of
the defendant upon the merits. R.C. 2941.08(B), (C) and (K). Pursuant to R.C.
2941.03 - .06, a single indictment may be used to charge multiple offenses.
{¶11} Failure to timely object to the sufficiency of the information in the
indictment limits appellate review to a plain error analysis. State v. Horner, 126 Ohio
St.3d 466, 473, 2010-Ohio-3830, paragraph three of the syllabus; State v. Frazier, 73
Ohio St.3d 323, 332, 652 N.E.2d 1000 (1995); State v. Skatzes, 104 Ohio St.3d 195,
2004-Ohio-6391, 819 N.E.2d 215. It is well established that, “notice of plain error ‘is
to be taken with the utmost caution, under exceptional circumstances and only to
prevent a manifest miscarriage of justice.’ ” Billman at ¶25.
{¶12} A three-part test is employed to determine whether plain error exists.
Id. at ¶25, citing State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).
First, there must be an error, i.e. a deviation from a legal rule. Second,
the error must be plain. To be “plain” within the meaning of Crim.R.
52(B), an error must be an “obvious” defect in the trial proceedings.
Third, the error must have affected “substantial rights.” We have
interpreted this aspect of the rule to mean that the trial court's error
must have affected the outcome of the trial.
Billman at ¶25.
{¶13} Appellant claims that his indictment was so vague it invited convictions
that would violate the double jeopardy clause. Appellant asserts that the indictment
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failed to specify the acts associated with each count. He also argues that the acts
were vaguely stated to have occurred during a lengthy period, September 1, 1999 to
September 28, 2001, which is insufficient to place him on notice of the charges
against him. Appellant argues that the “absurd number of counts” charged against
him was the result of prosecutorial misconduct. He asserts that the state lacked
sufficient evidence to support twenty convictions. Essentially, Appellant argues that
the state led the jury to decide the case under a theory of “where there is smoke
there must be fire.”
{¶14} In response, the state compares and contrasts the facts of this case to
several other Ohio cases. The state highlights the similarities between the instant
case and Billman, supra, and asserts that in Billman, we stated that an indictment is
not defective merely because it charges a defendant with multiple charges of the
same offense. The state distinguished the present case from the Sixth Circuit’s
decision in Valentine v. Konteh, 395 F.3d 626 (6th Cir.2005), with which we
specifically disagreed in Billman. Accordingly, the state urges that Appellant’s
indictment conformed to Ohio law and adequately placed him on notice of the
charges he faced. Regardless, Appellant has not met his burden of showing that
some prejudice was suffered as a result of his allegedly vague indictment. The state
also asserts that the record does not support Appellant’s allegation of prosecutorial
misconduct.
{¶15} When evaluating the sufficiency of an indictment, it is necessary to
determine whether it meets the requirements of R.C. 2941.03. This indictment
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specified the name of the trial court, the Mahoning County Common Pleas Court.
Thus, R.C. 2941.03(A) is met. Second, the indictment revealed that the Grand Jury
was comprised of residents of Mahoning County, the county where the court was
held, in accordance with R.C. 2941.03(B). Third, as required under R.C. 2941.03(C),
Appellant’s name is listed as the defendant. Fourth, the indictment stated that the
incidents occurred within Mahoning County, pursuant to R.C. 2941.03(D). Fifth, in
accordance with R.C. 2941.03(E), the date of each offense (between September 1,
1999 and September 29, 2001) precedes the date of the indictment (July 12, 2012).
As all of the requirements of R.C. 2941.03 are met, the indictment is not facially
defective.
{¶16} As to Appellant’s specific arguments, we have addressed almost
identical issues in two previous cases. In Billman, the appellant was charged with
two counts of GSI and two counts of rape against one minor child, and two counts of
attempted rape and six counts of GSI against a second minor child. The indictment
alleged that the incidents involving the first victim occurred between January 1, 2011
and October 28, 2011. The incidents involving the second victim allegedly occurred
between January 1, 2006 and October 28, 2011. After trial, the appellant was
convicted on two counts of rape and ten counts of GSI. He was acquitted on one
count of GSI and the remaining attempted rape charges were not submitted to the
jury. The appellant appealed and presented arguments similar to those made by
Appellant in the instant case. He argued that the range of times in which the
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incidents occurred was vague, the indictment was duplicative, and that the indictment
contained insufficient facts to specify which events comprised the charges.
{¶17} On review, we affirmed Billman’s conviction. Just as in the instant
case, the appellant was limited to a plain error review. After finding that the
indictment was facially sufficient, we addressed the appellant’s arguments. We held
that an indictment and bill of particulars “need not provide specific dates and time
where date and time is not an element of the offense charged.” Id. at ¶28. In so
doing, we noted that child victims often have difficulty providing exact dates,
particularly when the incidents occurred repeatedly over a lengthy period of time.
{¶18} While both of Billman’s victims testified that the conduct occurred
numerous times and provided the details of each event and what specific conduct
occurred, we emphasized that there is no inherent defect in an indictment that
charges a defendant with multiple counts of the same offense if the conduct was
repeated over a defined period of time. Further, we noted that the state provided a
bill of particulars that specified which acts were performed on the victims. Lastly, we
addressed the Sixth Circuit’s ruling in Valentine, supra. As noted by the state, we
observed that Valentine does not rely on Ohio law and “the decision has been
distinguished in every subsequent Sixth Circuit decision that cites it on this issue.”
Billman, supra, at ¶34.
{¶19} We also addressed the sufficiency of an indictment in State v. Stefka,
7th Dist. No. 10 MO 7, 2012-Ohio-3004, 973 N.E.2d 786. In that case, the appellant
was charged with thirty-nine counts involving sexual acts committed against three
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minor victims. He was charged with twenty-six counts of rape (four with a
specification) and thirteen counts of GSI. He requested and received a bill of
particulars which described the type of conduct that supported each charge. On
appeal, he presented arguments similar to those presented by Appellant in the
instant case.
{¶20} In Stefka, we reiterated that specific times and dates need not be
provided when they are not an element of the charged offense. Further, we stated
that “cases involving sexual abuse of children often cannot be charged with a high
level of specificity with regard to the time of the abuse.” Id. at ¶50. In Stefka, the
indictment and bill of particulars differentiated the counts by detailing the type of
conduct, how it started, and how long it lasted. We specifically acknowledged that
the state chose to only bring twenty-six charges against the appellant, when the
evidence supported several more counts because the appellant committed different
acts against all three victims each weekend for three months.
{¶21} Turning to the instant matter, we first address Appellant’s concerns
regarding the timeline provided within the indictment. As stated above, it is well-
established in Ohio that an exact time or date is not required when these are not an
element of the charged offense. Clearly, time and date are not elements of either
charged offense, rape and GSI. As previously noted, there is usually great difficulty
in obtaining exact dates when the victim was a minor at the time of the abuse. We
acknowledge the difficulty in determining an exact time or date of any individual
incident when the abuse occurred over a long period of time. Even though the victim
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is now an adult, she was a minor at the time of the abuse and the record reflects that
the abuse occurred every school day during the victim’s seventh and eighth grade
years, from September 1, 1999 until September 28, 2001. Thus, in accordance with
our decisions in Billman and Stefka, the range of dates, here, does not create a
defect in the indictment.
{¶22} Next, we consider the alleged vagueness of the acts associated with
each count. The indictment contained a total of forty counts. Each count included a
range of dates the incidents occurred and addressed each element of the
corresponding offenses. Absent from the indictment is information about the specific
conduct involved in the incidents. However, the state filed a bill of particulars which
provided this information. As to counts one through twenty (the rape counts), the
state specified:
On or about or between September 1, 1999 and September 28, 2001,
at multiple locations in and around Youngstown, Mahoning County,
Ohio, [Appellant] did engage in sexual conduct with [the victim], and
purposely compelled her to submit by force or threat of force, by
inserting his fingers into her vagina on multiple occasions, and she was
only in the 7th and 8th grades, he was her godfather and would pick her
up from school.
(7/18/13 Bill of Particulars.)
{¶23} As to counts twenty-one through forty, the bill of particulars stated:
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On or about or between September 1, 1999 and September 28, 2001,
at multiple locations in and around Youngstown, Mahoning County,
Ohio, [Appellant] did have sexual contact with [the victim], not his
spouse and purposely compelled her to submit by force or threat of
force, by inserting putting [sic] his mouth on her breasts on multiple
occasions, and she was only in the 7th and 8th grades, he was her
godfather and would pick her up from school.
(7/18/13 Bill of Particulars.)
{¶24} As the indictment and the bill of particulars comply with the law outlined
in Billman and Stefka, this indictment sufficiently described which acts led to which
counts. The fact that Appellant committed the same conduct repeatedly over a long
period of time does not burden the state with the duty to spell out every detail of
every incident.
{¶25} Appellant’s final two arguments will be addressed together. He claims
that the indictment vaguely states that the conduct occurred twenty times. He also
argues that the forty counts led the jury to decide the case under a theory that “where
there is smoke there must be fire.” We first note, as we did in Stefka, that the
testimony in this case indicates that the state could have charged Appellant with
more than forty counts. If the victim’s testimony is believed, the abuse occurred
every school day for two years. Theoretically, conduct committed every school day
for two years could support over a hundred counts. Thus, this record does not
support Appellant’s claim that he was overcharged.
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{¶26} Accordingly, the record demonstrates that the indictment and the bill of
particulars provided Appellant with sufficient detail to place him on notice of the
charges against him. We cannot find plain error in regard to the indictment. As such,
Appellant’s first assignment of error is without merit and is overruled.
Second Assignment of Error
The trial Court erred in entering convictions against the defendant
absent sufficient evidence and/or in contribution of the manifest weight
of the evidence.
{¶27} Appellant has challenged his conviction as to both the sufficiency of the
evidence and its manifest weight. A sufficiency of the evidence review questions
whether, “after viewing the evidence in a light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime proven
beyond a reasonable doubt.” State v. Smith, 7th Dist. Nos. 02 CA 227, 02 CA 231,
2004-Ohio-4285, ¶10, citing State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541(1997); State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668 (1997). Thus, sufficiency is
a test of adequacy. Thompkins at 386. Whether the evidence is legally sufficient to
sustain a conviction is a question of law. State v. Sloane, 7th Dist. No. 06 MA 144,
2009-Ohio-1175, ¶54, citing State v. Robinson, 162 Ohio St. 486, 124 N.E.2d 148(1955).
{¶28} Even if a conviction is supported by sufficient evidence, a reviewing
court may find the conviction is against the manifest weight of the evidence.
Thompkins at 387. When a reviewing court determines whether a conviction is
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against the manifest weight of the evidence, a broader test is used. State v. Greiner,
7th Dist. No. 05 BE 27, 2007-Ohio-1390, ¶7. Under the manifest weight test, “[t]he
court, reviewing the entire record, weighs the evidence and all reasonable inferences,
considers the credibility of witnesses and determines whether in resolving conflicts in
the evidence, 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.” Id. at ¶8, citing
Thompkins, supra, at 387; State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717(1st Dist.1983).
{¶29} Appellant was convicted on two counts of rape in violation of R.C.
2907.02(A)(2) which states that: “[n]o person shall engage in sexual conduct with
another when the offender purposely compels the other person to submit by force or
threat of force.” Appellant was additionally convicted on twenty counts of GSI in
violation of R.C. 2907.05(A)(1) which provides that:
No person shall have sexual contact with another, not the spouse of the
offender; cause another, not the spouse of the offender, to have sexual
contact with the offender; or cause two or more other persons to have
sexual contact when any of the following applies:
(1) The offender purposely compels the other person, or one of the
other persons, to submit by force or threat of force.
{¶30} Appellant urges that the victim’s statements were too vague to support
his convictions. Appellant particularly takes issue with the victim’s unsupported
allegation that the incidents occurred more than twenty times. Further, Appellant
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asserts that both of the state’s witnesses testified that the victim had never discussed
twenty incidents of rape or gross sexual imposition with anyone prior to filing charges.
In fact, Appellant notes that the testimony shows the victim had denied such conduct
even occurred to two separate people.
{¶31} The state argues that the victim gave very specific testimony regarding:
the place where the incidents occurred (in Appellant’s car), the events leading up to
the incidents (while driving her home from school he would pull the car over and
perform the acts), the conduct (he would fondle her breasts, kiss her, and insert his
fingers into her vagina), the length of time (five to fifteen minutes), and the frequency
of the incidents (every time he drove her home). Further, the state highlights the
testimony of Jamal and Michale Hoey who both testified that, while she refused to
discuss the extent of the abuse, the victim had told them abuse had occurred. As the
jury was in the best position to judge the witnesses’ credibility, the state contends that
the manifest weight of the evidence supports Appellant’s convictions.
{¶32} The first witness presented by the state was the victim’s mother. She
testified that the victim began to experience seizures around her twenty-first birthday
and was taken to the Cleveland Clinic on at least one occasion. At some point during
a visit to the clinic, the victim began crying hysterically and stated, “Willie hurt me,”
but then went into a seizure before she could provide specific details. (Tr., p. 369.)
The mother explained that the victim later entered counseling and eventually
reported the incident to the police.
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{¶33} The victim testified next. She explained how the abuse began, what
conduct it entailed, and how it ended. She began by explaining that Appellant would
pick his daughter, herself, and another girl up at school and drive them to his house.
Appellant would take her and the other friend home late in the evening, dropping the
other girl off first so that only the two of them remained in the car. While driving her
home, Appellant would pull over on the side of the road towards the end of a street
where there were no houses. She testified that once the car was stopped, he would
touch her breasts underneath her bra with both hands, kiss her, and insert his fingers
into her vagina. She stated that this occurred every time he took her home, which
was five days a week, and would last for five to fifteen minutes. She testified that he
repeated the conduct on at least twenty occasions.
{¶34} She also testified to a specific incident when a police car pulled behind
them and Appellant stopped what he was doing and acted as though he was
checking his car. When he pulled away the police car did not follow. She testified
that the incidents stopped all together after she and his daughter had a falling out
and she no longer went to the house. She explained that she never told anyone
about the abuse because she was afraid.
{¶35} The victim testified that she first spoke of the incident shortly after she
began experiencing non-epileptic seizures when she was twenty-one years old. She
stated that while receiving treatment for the seizures at the Cleveland Clinic she
finally told her mother about the incidents but did not provide details. Shortly
thereafter, she entered a treatment group for victims of sexual offenses and filed a
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police report a few months later. Around the time she filed the report, she testified
that she told Michale and Jamal Hoey about the abuse for the first time, but she did
not give them specific details. Sometime after confiding in the Hoeys, she argued
with them and no longer considered them friends.
{¶36} Amanda Canteras, the victim’s therapist, testified that the victim
inquired about a poster on the wall which advertised a group for sexual assault
victims. Canteras asked the victim if she had been sexually abused and the victim
responded in the affirmative. The victim confided that she was abused from ages
thirteen to fourteen. She further testified that the victim alleged that the man abused
her while giving her a ride home.
{¶37} Detective David Lomax testified that the victim told him she had been
sexually abused inside a car. She provided street names where the abuse took
place. When asked if the victim described specific acts, Det. Lomax stated that the
victim specified that he kissed her, fondled her, and touched her vagina with his
fingers. He stated that the victim told him that the abuse occurred more than twenty
times. He testified that Appellant was brought in for an interview and told Det. Lomax
“I don’t remember it happening that way.” (Tr., p. 565.) However, Appellant did not
offer a further explanation.
{¶38} Jamal Hoey testified next. He stated that the victim told him and his
sister, Michale, that she had been molested by a family friend when she was
younger. The victim told him that she was touched in an inappropriate way and felt
“nasty” about it. (Tr., p. 684.) He explained that when describing the abuse, she
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motioned a “swipe” across her chest. (Tr., p. 684.) He asked her if the man
penetrated her and she said no. He clarified that he only asked if the man had sex
with her, not whether he penetrated her with his fingers. He admitted that he did not
remember her response when he asked if the man had fondled her.
{¶39} Michale Hoey testified that the victim told her that she was sexually
abused when she was younger and she never told anyone about it before. The
victim told her that the man had brushed up against her breasts and it made her feel
“nasty and dirty.” (Tr., p. 710.) Unlike her brother, Michale stated that she
specifically asked whether the man used his fingers to penetrate her or fondled her,
and the victim denied such conduct. However, she also testified that the victim told
her that the man had kissed her and taken her virginity.
{¶40} Appellant argues that the victim vaguely stated that the act occurred
twenty times, which is insufficient to prove her allegations. This argument appears
irrelevant, as the jury found him guilty of only two counts of rape. In addition, it is
noted that the victim testified the acts all occurred every school day for approximately
two years. As to the twenty counts of GSI, the jury’s verdict on the rape counts
clearly demonstrates that the jury gave careful consideration to any vagueness in the
victim’s allegations.
{¶41} Appellant next argues that the only evidence that weighs in favor of a
conviction is the victim’s testimony. This argument is clearly contradicted by the
record. In addition to the victim’s testimony, several witnesses provided testimony in
support of a conviction, including the victim’s mother, the victim’s therapist, and Det.
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Lomax. Further, although the Hoeys testified on behalf of the defense, they both
acknowledged that the victim had previously told them of the abuse. Although they
testified that the victim denied certain conduct occurred and failed to provide specific
details, their testimony tends to support the jury’s finding that at least some instances
of abuse occurred.
{¶42} The victim herself gave very specific details when she testified as to the
acts. She provided a time range of September 1, 1999 to September 28, 2001.
While this is a lengthy range, she has maintained from the beginning that the conduct
occurred every school day during her seventh and eighth grade years, thus the range
is in accordance with her claims. She provided a specific location where the conduct
took place, as she not only testified that the acts occurred in Appellant’s car when
parked on the side of the road, but specifically described this area as near the end of
specifically named streets where no houses had been built. She provided that the
incidents occurred at night, and she testified that each incident lasted approximately
five to fifteen minutes. She also testified that during one incident, a police car pulled
behind them and Appellant pulled back onto the road and drove away.
{¶43} The victim also discussed Appellant’s specific actions. She testified
that he would place both hands under her shirt and bra and touch her breasts. He
would kiss her and insert his fingers into her vagina. Lastly, she testified that
Appellant was her godfather, which appears to have been introduced to show his
authority over her.
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{¶44} The victim’s basic allegations were confirmed through the testimony of
Amanda Canteras, Det. Lomax, and Jamal and Michale Hoey. Each testified that
she told them that she had been repeatedly sexually abused as a youngster by a
family friend when he took her home in his car. Although she did not discuss specific
details with each person, the witnesses’ testimony tends to confirm her basic
allegations. Accordingly, we find that the state presented sufficient evidence to
support the convictions.
{¶45} We next turn to Appellant’s manifest weight argument. Importantly,
every witness who testified, with the exception of Appellant’s daughter, stated that
the victim told them that she had been abused. As this case did not involve
eyewitness or physical evidence, the victim’s credibility and the witnesses’
corroboration of her allegations had impact. The victim was able to provide specific
details about the allegations both in her police interview and at trial. Her story
remained unchanged, which is significant in light of her highly specific details.
Further, her story to others, while it may not have included specific detail, did involve
an accusation against a family friend (Appellant is her godfather), an older man
(Appellant is unquestionably older than the victim), and a car (the abuse occurred
while he drove her home). We also note that because the jury found Appellant guilty
of only two out of twenty rape counts, this suggests that the jury carefully considered
her testimony and did not fall victim to Appellant’s smoke and fire theory.
{¶46} Further, key witnesses for the defense, Jamal and Michael Hoey,
contradicted themselves and each other at times. First, Jamal testified that the victim
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denied penetration, but he admittedly believes that penetration means sexual
intercourse and not digital or oral penetration. He acknowledged that he did not
specifically ask the victim if the abuser had digitally penetrated or fondled her.
Michale then testified that she specifically asked the victim about digital penetration
and fondling and the victim denied such conduct. However, Michale then testified
that the victim told her that the man had kissed her and took her virginity. Jamal also
testified that at least some sexual contact may have occurred as he acknowledged
the victim made a swiping motion across her chest when describing the abuse.
While Jamal may have interpreted this motion as mere contact with her chest, it
would be reasonable for a jury to interpret the motion as indicating sexual contact
with her breasts. Finally, it is clear from the record that the Hoeys dislike the victim
and it was their personal belief that she was a liar.
{¶47} As the jury was in the best position to judge the witnesses’ credibility
and we find nothing in the record to suggest that the jury’s verdict created a manifest
miscarriage of justice, Appellant’s second assignment of error is without merit and is
overruled.
Conclusion
{¶48} As an indictment that charges multiple counts of the same conduct is
not inherently defective and the indictment at issue conformed to Ohio law, the
indictment was sufficient to give Appellant notice of the charges against him. The
victim’s statements to police and her testimony support the number of counts
charged against Appellant. Finally, the victim and several other witnesses presented
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sufficient credible evidence of the abuse and Appellant’s witnesses tended to
corroborate the victim’s story. This record demonstrates that the jury gave careful
consideration to the credibility of each witness. Accordingly, Appellant’s assignments
of error are without merit and the judgment of the trial court is affirmed in full.
Donofrio, P.J., concurs.
Robb, J., concurs.