State v. Parke , 2023 Ohio 1144 ( 2023 )

[Cite as State v. Parke, 2023-Ohio-1144.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 111868
v. :
RICARDO PARKE, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 6, 2023
Criminal Appeal from the Cuyahoga County Common Pleas Court
Case No. CR-20-654987-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Lisa J. Turoso, Assistant Prosecuting
Attorney, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and
Robert McCaleb, Assistant Public Defender, for appellant.
ANITA LASTER MAYS, A.J.:
Defendant-appellant Ricardo Parke (“Parke”) appeals his convictions
and asks this court to reverse and vacate. We affirm his convictions.
I. Procedural History
After a jury trial, Parke was found guilty of one count of rape, a first-
degree felony, in violation of R.C. 2907.02(A)(2); one count of kidnapping, a first-
degree felony, in violation of R.C. 2905.01(A)(4); one count of domestic violence, in
violation of R.C. 2919.25(A), first-degree misdemeanor; one count of disrupting
public services, a fourth-degree felony, in violation of R.C. 2909.04(A)(3); and
aggravated menacing, a first-degree misdemeanor, in violation of R.C. 2903.21(A).
The trial court determined that all of the offenses were allied offenses
of similar import and merged them. Parke was sentenced to six to nine years’
imprisonment, pursuant to the Reagan Tokes Law. Parke’s trial counsel noted his
objection to the imposition of Reagan Tokes as unconstitutional to preserve the issue
for appeal.
II. Facts
On December 4, 2020, K.K., Parke’s ex-girlfriend and mother of his
daughter, scheduled a ride from Uber to take her from her job to her daughter’s
babysitter’s home. On the way, Parke called K.K., and they agreed that K.K. would
reroute her Uber to Parke’s home to pick up K.K.’s packages that were delivered to
Parke’s home. Parke agreed to take K.K. to pick up their daughter from the
babysitter’s home.
When K.K. arrived at Parke’s home, she called Parke and asked him
to come outside and bring the packages with him. K.K. testified that Parke told her
to come into the home because he was not dressed and ready to leave. K.K. walked
into the home and sat in Parke’s dining room. K.K. stated that Parke was sitting on
the couch, and they both were on their phone. Parke walked over to K.K. and began
kissing her and requested that K.K. go upstairs with him. K.K. told Parke that she
did not want to have sex. Parke left and went upstairs, and K.K. went to the living
room to look through the mail and open her packages.
K.K. testified that Parke came back downstairs, and when she turned
around, Parke attacked her. K.K. stated that she started fighting him off, tried to get
to the front door, but Parke slung her across the room. Parke was hitting K.K. in the
head and choking her for about a minute or two. During the tussle, K.K.’s phone fell
out of her pocket, and Parke grabbed the phone, ordering K.K. to go upstairs. K.K.
went upstairs, and Parke followed her. Parke told K.K. to sit on the bed and ordered
her to unlock her phone. K.K. unlocked her phone.
Once the phone was unlocked, Parke opened the Instagram app and
began looking through K.K.’s messages. Parke discovered that K.K. was following a
male friend and told her to call the male friend to tell him that K.K. would not talk
with him anymore. Parke handed the phone to K.K. and K.K. dialed 911. Parke
snatched the phone out of K.K.’s hand and hung up the phone. According to K.K.,
the police called back and left a voicemail. After taking the phone from K.K., Parke
sent a message to K.K.’s male friend. The friend called K.K.’s phone, and Parke
spoke with the friend.
As Parke continued his conversation, K.K. ran down the stairs and out
of the house through the side door. When she got to the driveway, Parke caught up
with her and started pulling her into the house. K.K. began screaming and Parke
covered her mouth. Once Parke pulled K.K. into the home, he told her to “get
upstairs before I hurt you.” (Tr. 358.) K.K. testified that once they were back
upstairs, Parke pulled a gun out of a red container and told her “if the police come,
I’m gonna hurt you.” (Tr. 359.) Parke set the gun on the dresser along with K.K.’s
phone.
Parke took K.K.’s socks and pants off and started kissing and rubbing
on her. He requested sexual favors. K.K. complied. Then Parke had sexual
intercourse with K.K. (Tr. 362.) Parke ejaculated on the bed. After K.K. went to the
bathroom, and came back to the bedroom to get dressed, Parke and K.K. went
downstairs, and K.K. retrieved her purse. Parke told K.K. to leave the purse, and
K.K. put it on the stairs. They went outside and got into the car. Parke drove K.K.
to the babysitter’s home.
Parke and K.K. arrived at babysitter Delores King’s (“King”) home
and both walked to the house. King testified that she observed Parke pulling,
dragging, and hitting K.K. in her chest. K.K. walked upstairs to the door and opened
the door. Once inside the home, King testified that she locked the door behind K.K.
because Parke was trying to get into the home.
K.K. asked King for her phone and called 911. The police arrived at
the babysitter’s home, and K.K. told them what happened. The police asked K.K. if
she needed to go to the hospital, and she stated yes. The ambulance came to the
home and transported K.K. to the hospital. At the hospital, K.K. was given a rape
kit, and the detective took pictures of K.K.’s injuries to her face, neck, arms, and legs.
Parke was indicted in a five-count indictment for rape, kidnapping,
domestic violence, disrupting public services, and aggravated menacing. One- and
three-year firearm specifications were attached to the rape and kidnapping counts.
Parke was found guilty of the five counts, but not guilty of all firearm specifications.
Parke was sentenced to six to nine years’ imprisonment and filed this timely appeal,
assigning three errors for our review:
I. Parke’s convictions were against the manifest weight of the
evidence;
II. Parke’s conviction on Count 4, alleging disruption of public
services, in violation of R.C. 2909.04(A)(3), was obtained upon
insufficient evidence; and
III. The sentence of the trial court imposing an indefinite term of
incarceration pursuant to the Reagan Tokes Act is
unconstitutional.
III. Manifest Weight of the Evidence
A. Standard of Review
“The manifest-weight-of-the-evidence standard concerns ‘the
inclination of the greater amount of credible evidence, offered in a trial, to support
one side of the issue rather than the other.’” State v. Walker, 8th Dist. Cuyahoga
No. 111656, 2023-Ohio-810, ¶ 17, citing Eastley v. Volkman, 132 Ohio St.3d 328,
2012-Ohio-2179, 972 N.E.2d 517, ¶ 12, quoting State v. Thompkins, 78 Ohio St.3d
380, 387, 678 N.E.2d 541 (1997). A reviewing court
“weighs the evidence and all reasonable inferences, considers the
credibility of witnesses and determines whether in resolving conflicts
in the evidence, the [factfinder] clearly lost its way and created such a
manifest miscarriage of justice that the [judgment] must be reversed
and a new trial ordered.”
Id., citing Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175,
485 N.E.2d 717 (1st Dist.1983). “In weighing the evidence, the court of appeals
must always be mindful of the presumption in favor of the trier of fact.” Id., citing
Eastley at ¶ 21.
B. Law and Analysis
In Parke’s first assignment of error, he argues that his convictions
were against the manifest weight of the evidence. Parke alleges that K.K.’s testimony
was inconsistent, specifically that K.K. did not tell the police dispatch she had been
sexually assaulted during the 911 call. Parke also states that K.K.’s description of the
sexual assault changed and that her description of the firearm Parke brandished also
changed. Parke further argues that King’s testimony was inconsistent with K.K.’s
testimony, because K.K. never testified that Parke pulled, dragged, or hit her in the
chest while in King’s driveway.
“[A] defendant is not entitled to reversal on manifest weight grounds
merely because certain aspects of a witness’ testimony are inconsistent or
contradictory.” State v. Flores-Santiago, 8th Dist. Cuyahoga No. 108458, 2020-
Ohio-1274, ¶ 40. See, e.g., State v. Nitsche, 2016-Ohio-3170, 66 N.E.3d 135, ¶ 45
(8th Dist.); see also State v. Wade, 8th Dist. Cuyahoga No. 90029, 2008-Ohio-4574,
¶ 38 (“A conviction is not against the manifest weight of the evidence solely because
the [factfinder] heard inconsistent testimony.”), State v. Mann, 10th Dist. Franklin
No. 10AP-1131, 2011-Ohio-5286, ¶ 37 (“‘While [a factfinder] may take note of the
inconsistencies and resolve or discount them accordingly, * * * such inconsistencies
do not render defendant’s conviction against the manifest weight or sufficiency of
the evidence.’”).
“It is well settled, however, that the credibility of witnesses is a matter
for the trier of fact to determine.” State v. Miller, 5th Dist. Licking No. 2019-CA-
00022, 2019-Ohio-5024, ¶ 21. “Challenges to the sufficiency of the evidence based
upon instances of inconsistent testimony, memory defects, and the like are witness
credibility issues which are properly resolved by the trier of fact.” State v. Nichols,
5th Dist. Richland No. 12-CA-102, 2013-Ohio-3898, ¶ 13.
Although we consider the credibility of witnesses in a manifest weight
challenge, we are mindful that the determination regarding witness
credibility rests primarily with the trier of fact because the trier of fact
is in the best position to view the witnesses and observe their
demeanor, gestures, and voice inflections — observations that are
critical to determining a witness’s credibility.
State v. Jackson, 8th Dist. Cuyahoga No. 100125, 2014-Ohio-3583, ¶ 37, citing
State v. Clark, 8th Dist. Cuyahoga No. 94050, 2010-Ohio-4354, ¶ 17.
The trier of fact is free to accept or reject any or all the testimony of
any witness. Id., citing State v. Smith, 8th Dist. Cuyahoga No. 93593, 2010-Ohio-
4006, ¶ 16.
K.K.’s failure to disclose that she was raped to the police dispatcher
does not demonstrate that her testimony was inconsistent. K.K. testified that she
did not tell the dispatcher about the rape because “it was a touchy thing to say over
the phone.” (Tr. 381.) Instead, K.K. decided to wait until the police arrived. Also
K.K.’s description of the rape when she was in the hospital did not differ from her
initial testimony to the police. However, K.K. did not tell the detective that Parke
asked her for oral sex. When cross-examined about this alleged discrepancy, K.K.
stated, “Cause oral sex is a part of sex. I mean, I wasn’t being detailed about the sex.
But, I mean, that’s sex; right? I mean, I didn’t — It was sex.” (Tr. 392.)
Parke also argues that K.K.’s testimony about the firearm was
inconsistent. However, K.K. explained her confusion and stated, “I thought that he
[the police] was asking like where did he [Parke] buy it from, or get the gun from.”
I didn’t know that he was asking where in the room did he get it from. You just asked
me where did he get it from.” (Tr. 396.) This does not demonstrate that K.K.’s
testimony was inconsistent or contradictory, but rather she did not understand the
officer’s question.
Next, Parke contends that King’s testimony should be completely
dismissed because she testified that she observed Parke physically assaulting K.K.
in King’s driveway, and K.K. did not mention this in her testimony. Again, this does
not demonstrate that the testimonies were inconsistent or contradictory. K.K. did
not state that the physical assault did not happen. This testimony regarding Parke’s
assault on K.K. at King’s home is based on King’s recollection.
At the end of the trial, the jury found Parke guilty of all counts, but
not guilty of the firearm specifications. The jury’s verdict demonstrates that it
considered all the evidence, weighed the testimony of all the witnesses, and
discounted or accepted testimony where the jury determined was appropriate.
Accordingly, based on the record before us, we cannot say that this is the exceptional
case where the jury clearly lost its way in finding Parke guilty.
Therefore, Parke’s first assignment of error is overruled.
IV. Sufficiency of the Evidence
A. Standard of Review
“‘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.’” State v. Bradley, 8th
Dist. Cuyahoga No. 108983, 2020-Ohio-3460, ¶ 6, quoting State v. Driggins, 8th
Dist. Cuyahoga No. 98073, 2012-Ohio-5287, ¶ 101, citing Thompkins, 78 Ohio St.3d
at 386, 678 N.E.2d 541 (1997).
“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 ¶ 7, citing
State v. Vickers, 8th Dist. Cuyahoga No. 97365, 2013-Ohio-1337, citing State v.
Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991).
B. Law and Analysis
In Parke’s second assignment of error, he contends there was
insufficient evidence to convict him of disruption of public services in violation of
R.C. 2909.04(A)(3) because he did not purposely keep K.K. from calling 911. Parke
argues that he did not know that K.K. called 911 when he hung up the phone and
took it from her.
R.C. 2909.04(A)(3) states:
No person, purposely by any means or knowingly by damaging or
tampering with any property, shall do any of the following:
Substantially impair the ability of law enforcement officers,
firefighters, rescue personnel, emergency medical services personnel,
or emergency facility personnel to respond to an emergency or to
protect and preserve any person or property from serious physical
harm.
“‘[T]he deciding factor in these cases is whether the defendant’s
conduct caused the victim to be unable to use that telephone.’” State v. Tajblik, 6th
Dist. Wood No. WD-14-064, 2016-Ohio-977, ¶ 13, quoting State v. Hill, 7th Dist.
Mahoning No. 09MO3, 2010-Ohio-4871, ¶ 25. In State v. Galindo, 5th Dist. Stark
No. 2011CA00258, 2012-Ohio-3626, ¶17, the court held that “[t]he statute is aimed
at conduct which prevents a victim from using public services to seek emergency
assistance.” Id.K.K. testified that Parke discovered that she was following a male
friend and told her to call the male friend to tell him that K.K. would not talk with
him anymore. Parke handed the phone to K.K., and K.K. dialed 911. Parke snatched
the phone out of K.K.’s hand and hung up the phone. According to K.K., the police
called back and left a voicemail. K.K. also testified that after Parke dragged her back
into the home, once they were back upstairs, Parke pulled a gun out of a red
container and told her “if the police come, I’m gonna hurt you.” (Tr. 359.) By taking
K.K.’s phone, it demonstrates that Parke purposely prevented K.K. from using her
cell phone.
Therefore, Parke’s second assignment of error is overruled.
V. Reagan Tokes Law
In Parke’s third assignment of error, he argues that the trial court’s
imposing an indefinite term pursuant to Reagan Tokes Law is unconstitutional
because it violates his Sixth Amendment right to a trial by jury.
Parke’s assignment of error is overruled pursuant to this court’s en
banc decision in State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 536 (8th Dist.).
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
______________________________________
ANITA LASTER MAYS, ADMINISTRATIVE JUDGE
KATHLEEN ANN KEOUGH, J., and
EMANUELLA D. GROVES, J., CONCUR
N.B. Administrative Judge Anita Laster Mays is constrained to apply Delvallie’s
en banc decision. For a full explanation of her analysis, see State v. Delvallie,
2022-Ohio-470, 185 N.E.3d 536 (8th Dist.) (Laster Mays, J., concurring in part and
dissenting in part).
Judge Emanuella D. Groves concurred with the opinions of Judge Lisa B. Forbes
(dissenting) and Administrative Judge Anita Laster Mays (concurring in part and
dissenting in part) in Delvallie and would have found the Reagan Tokes Law
unconstitutional.