State v. Washington , 2023 Ohio 1667 ( 2023 )

[Cite as State v. Washington, 2023-Ohio-1667.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 111544
v. :
PHILLIP WASHINGTON, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED AND REMANDED
RELEASED AND JOURNALIZED: May 18, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-20-650787-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Glen Ramdhan, Assistant Prosecuting
Attorney, for appellee.
Robert A. Dixon, for appellant.
EILEEN A. GALLAGHER, J.:
Defendant-appellant Phillip Washington (“Washington”) was
sentenced to life in prison without the possibility of parole after a jury found him
guilty of multiple counts of rape and gross sexual imposition involving a young child.
Washington contends that his rape convictions were not supported by sufficient
evidence and were against the manifest weight of the evidence. He further contends
that (1) he was denied due process and a right to a fair trial based on references to
the complainant as “the victim” at trial, (2) the trial court failed to properly instruct
the jury regarding the use of force for purpose of the rape charges, (3) he was denied
the effective assistance of counsel and (4) his life sentence without the possibility of
parole constitutes cruel and unusual punishment in violation of the Eighth
Amendment to the United States Constitution and Article I, Sections 9, 10 and 16 of
the Ohio Constitution. For the reasons that follow, we affirm the trial court.
Procedural History and Factual Background
On May 26, 2020, a Cuyahoga County Grand Jury indicted
Washington on 12 counts as follows:
● One count of rape of a child under 13 who was not the spouse of
the offender in violation of R.C. 2907.02(A)(1)(b), a first-degree
felony — “1st incident” anal penetration on or about January 1,
2018 to January 5, 2019 — with a furthermore clause, i.e., that
the defendant “purposely compelled the victim, who was under
ten years of age at the time of the commission of the offense * * *
to submit by force or threat of force” (Count 1)
● One count of gross sexual imposition of a child under 13 who was
not the spouse of the offender in violation of R.C. 2907.05(A)(4),
a third-degree felony — “1st time; touched butt and thighs” on or
about January 1, 2018 to January 5, 2019 (Count 2)
● One count of rape of a child under 13 who was not the spouse of
the offender in violation of R.C. 2907.02(A)(1)(b), a first-degree
felony — “2nd described incident” anal penetration on or about
January 1, 2018 to January 5, 2019 — with a furthermore clause,
i.e., that the defendant “purposely compelled the victim, who was
under ten years of age at the time of the commission of the
offense * * * to submit by force or threat of force” (Count 3)
● One count of rape of a child under 13 who was not the spouse of
the offender in violation of R.C. 2907.02(A)(1)(b), a first-degree
felony — anal penetration on or about January 5, 2019 to
March 21, 2019 — with a furthermore clause, i.e., that the
defendant “purposely compelled the victim, who was under ten
years of age at the time of the commission of the offense * * * to
submit by force or threat of force” (Count 4)
● One count of gross sexual imposition of a child under 13 who was
not the spouse of the offender in violation of R.C. 2907.05(A)(4),
a third-degree felony — “touched chest” on or about January 5,
2019 to March 21, 2019 (Count 5)
● One count of rape of a child under 13 in violation of R.C.
2907.02(A)(1)(b), a first-degree felony — vaginal penetration on
or about March 22, 2019 to May 2, 2020 — with a furthermore
clause, i.e., that the defendant “purposely compelled the victim,
who was under ten years of age at the time of the commission of
the offense * * * to submit by force or threat of force” (Count 6)
● One count of rape of a child under 13 in violation of R.C.
2907.02(A)(1)(b), a first-degree felony — anal penetration on or
about March 22, 2019 to March 21, 2020 — with a furthermore
clause, i.e., that the defendant “purposely compelled the victim,
who was under ten years of age at the time of the commission of
the offense * * * to submit by force or threat of force” (Count 7;
later renumbered as Count 6)
● One count of rape of a child under 13 in violation of R.C.
2907.02(A)(1)(b), a first-degree felony — vaginal penetration on
or about March 22, 2019 to March 21, 2020 — with a
furthermore clause, i.e., that the defendant “purposely
compelled the victim, who was under ten years of age at the time
of the commission of the offense * * * to submit by force or threat
of force” (Count 8)
● One count of gross sexual imposition of a child under 13 in
violation of R.C. 2907.05(A)(4), a third-degree felony —
“touched butt, vagina, chest” on or about March 22, 2019 to
March 21, 2020 (Count 9; later amended to reference vagina
only and renumbered as Count 7)
● One count of gross sexual imposition of a child under 13 in
violation of R.C. 2907.05(A)(4), a third-degree felony —
“touched chest” on or about March 22, 2020 (Count 10; later
renumbered as Count 8)
● One count of rape of a child under 13 in violation of R.C.
2907.02(A)(1)(b), an unspecified felony — cunnilingus on or
about March 22, 2020 — with a furthermore clause, i.e., that the
defendant “purposely compelled the victim, who was under
thirteen years of age but ten years of age or older at the time of
the commission of the offense * * * to submit by force or threat
of force” (Count 11; later renumbered as Count 9)
● One count of rape of a child under 13 in violation of R.C.
2907.02(A)(1)(b), an unspecified felony — anal penetration on
or about March 22, 2020 to May 2, 2020 with a furthermore
clause, i.e., that the defendant “purposely compelled the victim,
who was under thirteen years of age but ten years of age or older
at the time of the commission of the offense * * * to submit by
force or threat of force” (Count 12; later renumbered as Count
10)1
The rape counts also included notice-of-prior-conviction and repeat-violent-
offender specifications based on Washington’s prior conviction for burglary in 2014.
The charges in this matter relate to the alleged assault of M.F., the
daughter of Washington’s then-girlfriend. At the time of the alleged offenses, M.F.
was between eight and ten years old. Washington pled not guilty to all charges.
The case proceeded to trial on March 23, 2022. Washington waived
his right to a jury trial on the notice-of-prior-conviction and repeat-violent-offender
specifications; the remaining issues were tried to a jury.
1 Prior to trial, the state
moved, pursuant to Crim.R. 7(D), to amend the indictment
to correct a couple of clerical errors in the dates set forth in Counts 3 and 4 as originally
indicted. The trial court granted the motion. The dates set forth above reflect those
amendments.
At trial, the state presented testimony from nine witnesses, including
M.F., M.F.’s mother (“Mother”) and M.F.’s father (“Father”). Washington testified
in his defense. At the time of trial, M.F. was 12 years old. A summary of the relevant
evidence follows.
Kelley Lott, a forensic nurse and sexual assault nurse examiner
(“SANE”) at Hillcrest Hospital, examined M.F. when Father brought M.F. to the
hospital’s emergency department on May 3, 2020. She identified and authenticated
emergency department records relating to her sexual assault examination of and
related discussions with, M.F. Lott testified that M.F., who was then ten years old,
arrived in the emergency department at 12:24 a.m. and was discharged at 5:00 a.m.
Lott stated that she spoke with Father briefly to determine what brought them to the
emergency department. She then spoke with M.F., alone, in the SANE examination
room, eliciting a history of what had happened “for treatment and assessment
purposes,” to identify areas in which an injury may have occurred and to identify
where there may be DNA or other evidence to collect.
Lott testified that she recorded M.F.’s answers to her questions, in
writing, as they spoke, explaining that it is “very important” to accurately document
what a patient says “in real time, as the patient is providing the information.” As
documented in the emergency department records, Lott’s conversation with M.F.
included the following exchange, which Lott read to the jury:
[Lott]: What made you come to the hospital?
[M.F.]: They went to the grocery store, and then they came back
and saw me crying. I said nothing.
His girlfriend, [C.S.], asked me, Let’s go talk about what’s wrong,
and she asked me, Do he be touching you?
And I said, Yes.
And then she said, Do he be touching you on your butt and your
private part?
And I said, Yes.
[Lott]: Can you tell me more about that?
[M.F.]: Okay. * * * [Patient covers face.] Like he be touching me
on my butt and my private part and my chest and stuff, and he
put his private part in my butt.
[Lott]: Where the poop comes out?
[M.F.]: Yeah.
[Lott]: Does he ever put his private part in your front?
Patient shakes head indicating yes.
[Lott]: When was the last time he put his private part in you?
[M.F.]: Friday. The Friday I came over to my grandma’s house.
[Lott]: Where were you when this happened?
[M.F.]: At home. * * * [On] the couch watching TV.
[Lott]: Was your mom home?
[M.F.]: Yes.
[Lott]: Where was she?
[M.F.]: She was asleep in the basement.
[Lott]: How long has this been going on?
[M.F.]: Like two to three months, I think.[2]
[Lott]: Does your mom’s boyfriend put anything on
his penis or private part?
[M.F.]: No, he put it on mine.
[Lott]: Like, does he cover it with anything?
[M.F.]: No.
[Lott]: Does anything come out of his penis?
Patient shakes head yes.
[Lott]: Can you tell me about that?
[M.F.]: I don’t know what that is.
[Lott]: What does it look like?
[M.F.]: It’s like — like white stuff.
[Lott]: Does it ever go on your body?
[M.F.]: Shakes head yes.
[Lott]: Where on your body?
[M.F.]: Like on my butt and stuff.
[Lott]: Does anything hurt right now?
[M.F.]: No.
2 Lott testified that, with respect to M.F.’s reference to “two to three months,” she
could not say whether M.F. was referring to (1) the length of time M.F. had been abused
or (2) the length of time Mother had been sleeping in the basement. Lott explained that
children are “very literal” and that M.F. “may have been referring to the previous topic
[Lott] had just discussed with her” with her response. Mother later testified that, in May
2020, she had been sleeping in the basement for two to three months.
[Lott]: Does anything ever hurt after he hurts you?
[M.F.]: Like my private part and my butt.
Lott testified that, after explaining to M.F. what would occur, she
conducted a sexual assault examination of M.F. and swabbed areas of her body that
may have been licked, kissed, bitten or had skin-to-skin contact with her assailant,
including M.F.’s mouth, back, buttocks, butt cheeks, breasts, fingernails, inner
thighs and external genitalia. She then placed these swabs in the sexual assault
evidence collection kit.
Lott stated that, during evidence collection, M.F. further disclosed
that her assailant had put his penis in her mouth and had licked her chest and
“private area.” Lott testified that the alleged assailant was Mother’s boyfriend,
Washington. Lott indicated that she had noted, in the section of the medical records
identifying “type of contact,” M.F.’s disclosure of: (1) vaginal and anal “penetration”
by assailant’s penis, (2) anal and vaginal “contact” with assailant’s penis, (3) contact
between assailant’s mouth and patient’s genitals, (4) contact between patient’s
mouth and assailant’s genitals, (5) touching of “chest, specifically[,] left breast” and
(6) ejaculation (based on M.F.’s description of “the white stuff coming out of his
private part”). Lott stated that medical records reflected no disclosure of lubrication
or condom use. Lott indicated that the underwear M.F. had worn to the exam was
collected and included in the sexual assault examination collection kit.
Lott testified that she saw no visible injuries, such as bruising or
vaginal or anal tearing, during her examination of M.F. but explained that in sexual
assault cases, it is “uncommon” to see injuries to a patient’s vagina or rectum
(“unless there is * * * a level of violence being perpetrated”) because “those body
parts are made to stretch and tolerate penile insertion, or insertion of objects.” Lott
testified that, when her examination was complete, she secured M.F.’s sexual assault
evidence collection kit and released it to Officer Moore with the Maple Heights
Police Department.
M.F.’s mother testified that she had seven children (four boys and
three girls), including M.F. She stated that Washington was the father of one of her
children (a boy who was then nine) and that she had begun a relationship with
Washington approximately ten years earlier. Mother stated that Washington had
lived with her and her children for several years. She testified that they had lived in
a home on Clearaire Avenue in Cleveland for approximately three years until
January 2019. They then moved to a home on Alice Avenue in Cleveland. In June
or July 2019, the family moved to a home on Turney Road in Maple Heights. Mother
stated that the girls all slept in the one room, the boys all slept in another room and
Washington slept with Mother in Mother’s room.
Mother testified that on May 3, 2020, officers from the Maple Heights
Police Department came to her home and requested permission to search the home
in connection with a report that M.F. had been “sexually molested.” Mother stated
that she was “shocked” and consented to the search. Mother testified that officers
searched M.F.’s room and took “[t]he clothes she was wearing.” She indicated that
they also used a blue light to examine M.F.’s bed and the couch on which M.F.
sometimes slept, looking for bodily fluids. Mother stated that Washington was
present when the officers arrived, that the officers spoke with Washington and
requested a DNA sample and that Washington complied with their request.
Mother testified that although Washington was not M.F.’s biological
father, he was a “father figure” or “stepdad” to M.F. and her other children, i.e.,
“taking care of the kids, like feeding them, taking them places * * * like what * * * a
dad is supposed to do.” Mother stated that Washington had authority over M.F. as
an adult and a father figure in the home, but that Mother was responsible for
discipline. She indicated that if M.F. violated Washington’s rules while Mother was
absent, he would tell Mother about it, and Mother would “handle it.”
Mother testified that M.F. referred to Washington as “dad” or “Big
Phil.” She described Washington as having been a “good father” to all her children,
that she had never observed any conduct that she was believed was inappropriate
between Washington and M.F. (or any of her other children) and that M.F. had
never told her that anything inappropriate had happened between her and
Washington. Mother acknowledged that she had previously told the police and the
Cuyahoga County Division of Children and Family Services (“CCDCFS”) that
Washington was never left alone with the children long enough that anything
inappropriate could have happened. Mother also acknowledged, however, that if
something inappropriate had been going on while she was sleeping, she would not
have known about it. Mother testified that in May 2020, she was sleeping in the
basement and had been doing so for “[l]ike two to three months.”
Mother testified that she had previously told CCDCFS that she
believed Father was “coaching” and “brainwash[ing]” M.F. so that he could get
custody of her. Mother indicated that had believed this, in part, because other
people had told her that M.F. was using words to describe being sexually assaulted
by Washington that Mother did not believe were in M.F.’s vocabulary. Mother
acknowledged, however, that she did not, in fact, know what M.F. had said during
any of her interviews because Mother was not present during those interviews; she
was just “going off” what others had told her.
Mother stated that M.F. had seen her biological father infrequently,
i.e., “[p]robably like a good five times,” before the summer of 2019 because Mother
and Father “didn’t get along very well.” She indicated that M.F. began seeing Father
more regularly, e.g., every weekend or every other weekend, after Mother and the
children moved to Maple Heights. After M.F.’s allegations of sexual abuse were
reported to the police, M.F. lived with Father.
Mother testified that she had not wanted to believe the allegations
against Washington were true because, at the time, she loved him. She stated that
the allegations were “a shocker, like it caught me off guard.” She indicated, however,
“if they have proof that it’s true, it’s true.”
In May 2020, Kashiff Moore was a patrol officer for the Maple
Heights Police Department. He testified that on May 3, 2020, he responded to a
report of sexual assault of a minor at an address on Turney Road in Maple Heights.
Upon arrival, he and two other officers met with Mother and Washington and
Mother signed a written consent form authorizing the officers to search the house.
Moore testified that while using a black light to search for bodily
fluids, the officers found a plastic bag in the closet of M.F.’s bedroom containing blue
girl’s underwear, blue jeans and a t-shirt that appeared to have bodily fluids on them.
The officers collected the clothing, placed the clothing into paper bags, sealed and
labeled the bags and entered them into evidence. Moore stated that no bodily fluids
were found on the couch in the living room or on the bed, bedding or sleeping mat
in M.F.’s bedroom.
Moore identified the clothing taken by the officers, including State
exhibit No. 12, marked as “panties worn during the incident,” and copies of
photographs of the clothing and M.F.’s room and closet, which were also marked as
exhibits.
Moore testified that a DNA buccal swab was voluntarily collected
from Washington. He stated that his partner spoke with Washington and that
Washington denied that he had sexually abused M.F.
Moore testified that, later that day, he collected M.F.’s sexual assault
evidence collection kit from Hillcrest Hospital and brought it to the Maple Heights
police station where it was entered into evidence and placed in an evidence storage
locker.
At the time of trial, M.F. was 12 years old and in the 5th grade. She
then lived with Father, her father’s girlfriend, C.S., and her four-year-old half-
brother. M.F. identified Washington in court as her mother’s boyfriend, whom she
called “Big Phil.” She testified that she had lived with Washington most of her life,
that he was “kind of like a stepdad” to her and that he would do “stepdad things” for
her and her siblings, e.g., cook dinner, take her to the store and buy things for her.
She stated that Washington would be in charge when Mother was not home and that
she would get in trouble with Mother if she did not follow his rules.
M.F. testified that one day in May 2020, while she was at her paternal
grandmother’s house, she began crying and became “really upset” while Father and
C.S. were out grocery shopping. She stated that she was “feeling sad” because she
did not want to go back to Mother’s house, where she lived with Mother, her siblings
and Washington. When Father and C.S. returned, they noticed that M.F. was upset,
and Father asked her what was wrong. M.F. did not tell Father why she was upset
but, later, when she was alone with C.S., disclosed to C.S. that Washington had been
“like touching on me and stuff.” M.F. indicated that C.S. had initiated the
conversation and had specifically asked M.F. (1) whether someone had been
touching her and (2) whether that person was Washington.
M.F. testified that she then spoke with a Cleveland police officer,
Maple Heights police officers, a nurse at the hospital and “another lady” (later
identified as CCDCFS worker Tabitha Mazza) about what Washington had done to
her. M.F. stated that, in each instance, no one told her what to say and that she used
“[m]y words” and not “other people’s words” to describe what had occurred. M.F.
indicated that when she was questioned by police, Father and C.S. were in the room
with her and “kind of [gave] some answers too.”
M.F. stated that she told the nurse at the hospital about “the last time”
Washington assaulted her. She testified that while she was on the living room couch
watching television, Washington “like touched me and stuff.” Upon further
questioning, she explained:
Q. * * * What do you mean touched you and stuff? * * * Did he touch
your private parts?
A. Yes.
Q. What private parts did he touch?
A. My butt.
Q. And did he touch any other private parts?
A. Yeah.
Q. What private parts did he touch?
A. My private.
Q. And did he use his hand, or did he use something else?
A. Something else. And his hand.
***
Q. Okay. So he touched your butt with his hand, and he touched your
private part with his hand?
A. He — he didn’t touch my private part with his hand, but he did touch
my butt with his hand.
***
Q. Did he use his hands to touch any other parts of your body, if you
remember?
A. I don’t remember.
Q. Okay. Now, did his private part touch you anywhere?
A. Yes.
Q. And where did his private part touch you?
A. My butt.
Q. Okay. And I’m sorry we have to ask you, [M.F.], okay? Are you
talking about the outside of your butt or somewhere else?
A. Um — somewhere else.
Q. What’s that somewhere else?
A. In.
Q. Did you say in your butt?
A. Yes.
***
Q. And this happened on the couch, where he put his private part in
your butt; is that right?
A. Yes.
Q. And when he was doing that, was he touching you anywhere else?
A. Yes.
Q. Where else was he touching you?
A. My private part.
Q. And did he do anything else to you that you remember that you
didn’t like?
A. He licked my private part.
***
Q. Did he also — do you know if anything came out of his private part?
A. I don’t know.
Q. Okay. Do you know if he put anything on his private part?
A. Yeah.
Q. What did he put on his private part?
A. Like some grease or something.
Q. Okay. And this last time, right, I asked a question if anything had
came out of his private part. You’re not sure if it did or not?
A. I think so.
Q. Okay. Had you ever seen anything come out of his private part
before?
A. Yeah.
Q. And what did it look like?
A. It was like white.
M.F. testified that while this was happening, she was feeling sad and
started crying. She stated that Washington stopped because she was crying and that
he was mad she was crying. She testified that after Washington stopped, she went
into the bathroom and cleaned up and then put the clothes she had been wearing in
her bedroom closet.
M.F. testified that, after speaking with the nurse at the hospital, she
told another woman more about what Washington had done to her. M.F. identified
a copy of a photograph (State exhibit No. 10) in which she was talking to the woman
and proceeded to describe what she told the woman (i.e., Mazza).
M.F. testified that she told Mazza that when she lived on Clearaire
Avenue, she had been in her bedroom at night sleeping with her younger sisters
when Washington “put his private part in my butt.” M.F. stated that, when he did
this, it made her feel “weird.” She indicated that Washington did not touch her
anywhere else at that time.
M.F. stated that Washington did “the same thing” a second time when
she was living on Clearaire Avenue, i.e., that she was in her bedroom at night
sleeping with her sisters when Washington “put his private part in my butt.” In both
instances, M.F. saw “white stuff” come out of “his private.” In neither of these
instances did Washington tell M.F. anything.
M.F. testified that she also told Mazza about incidents that occurred
when she lived on Alice Avenue and Turney Road. M.F. stated that when she lived
on Alice Avenue, Washington “put his private part in my butt and touched my chest.”
M.F. indicated that Washington put “grease” on his private part and that she saw
“the same” “white stuff” come out of “his private.” M.F. testified that she told the
police that, when these incidents occurred, the “white stuff” got “all over the couch,”
on the bed and on her.
After they moved to Turney Road, M.F. stated that she was in her
room with her sisters at night when Washington “put his private part in my butt and
touched my private part and my butt.” According to M.F., the final incident was the
incident she had previously described to Lott, i.e., where Washington “put his
private part in my butt and licked my private part” while she was on the couch in the
living room in their house on Turney Road. M.F. testified that during these
incidents, Washington was “very” quiet and was not loud enough to wake Mother or
her sisters.
When asked whether Washington had ever “put his private part in
your private part,” M.F. replied that he had but that she did not remember when or
where that occurred other than “probably like Turney, maybe.” When asked
whether Washington ever made her touch his private part, M.F. responded that he
had made her “suck his private part.”
M.F. testified that, at some point, perhaps “at the Turney house,”
Washington told M.F. not to tell anyone about the incidents. She stated that she did
not believe Washington told her what would happen if she told anyone. M.F.
acknowledged that Mother had previously asked her “if anything was going on” or
“if anybody was doing anything to you,” but stated that she never told Mother what
Washington was doing to her because she was afraid Mother would tell Washington
what M.F. had said.
Father testified that, in May 2020, he was “just starting to see [M.F.]
again” and was trying to build a relationship with her. He stated that, at this time,
he would see M.F. “[n]ot that often,” [f]or the weekend, possibly,” and that when
M.F. visited, his mother, his other kids and sometimes C.S. “would be around.”
Father stated that, in addition to M.F., he had three other children ages 16, 12 and
4. He stated that he had been in a relationship with C.S. for six or seven years.
Father said that M.F. would be dropped off at his mother’s house for
visitation because he and Mother “didn’t have no dealings,” i.e., “[w]e didn’t want to
be around each other,” and there were “some issues” between Mother and C.S.
because Mother did not want M.F. to think that C.S. was her “new mom.”
Father testified that M.F. was dropped off for visitation on Friday,
May 1, 2020. On the afternoon of May 2, 2020, when he and C.S. were returning to
his mother’s house after grocery shopping, Father saw M.F. “balled up in a corner,
crying.” Father stated that he asked M.F. what was wrong, but that M.F. would not
talk to Father. He indicated that C.S. took M.F., who was still crying, to the car to
speak with her privately. After C.S. told Father what M.F. had disclosed to her, they
went first to a Cleveland police station and later to the Maple Heights police station,
where they made police reports.
Father testified that, at the Cleveland police station, a police officer
“pulled [M.F.] into a separate room and interviewed her” and that, at the Maple
Heights police station, the three of them met with a police officer together and then
wrote out a statement. Father stated that neither he nor C.S. told M.F. what to say.
Father and C.S. next took M.F. to the hospital, where he told a nurse
what he knew. Father explained that, at that point, “I didn’t know too much. I knew
something wasn’t right, something, you know, the main objective. I didn’t know
exactly the details, and everything, but I knew it was something. I told her [M.F.]
was assaulted * * * [s]exually.” Father stated that he was not in the room when the
nurse examined M.F. and that, when M.F. later spoke with a social worker, the social
worker “pulled [M.F.] to the side” when talking to her. Father denied telling M.F.
what to say and testified that M.F. never disclosed to Father the details of what had
occurred.
Father stated that M.F. had been living with him since May 2, 2020
but that she maintains a relationship with Mother and speaks with her regularly,
“[p]ossibly every day.” He indicated that, at the time of trial, M.F. was participating
in weekly counseling sessions through the Rape Crisis Center. Father testified that
M.F. does not talk about what happened at home but that he had begun to notice
positive changes in M.F., e.g., isolating less, talking more and not “sad all the time.”
C.S. testified that she has two children, ages nine and four, that she
met Father seven or eight years ago, and they had been together for approximately
six years. C.S. stated that she first met M.F. in 2016 and that she “look[ed] at [M.F.]
like my own daughter.”
C.S. testified that, in early May 2020, after she and Father went
grocery shopping, she observed M.F. “down and sad in a corner,” which was unusual
for M.F. She stated that she asked M.F. what was wrong and M.F. would not
respond, so she took M.F. to the car to talk to her privately. C.S. testified that M.F.
was crying; “[s]he was like so sad”; “[y]ou could tell, look in her face that something
was bothering her.”
C.S. testified that she asked M.F., “what was wrong,” “was somebody
hurting you down there, which is — the private part area” and whether it was
Washington. C.S. explained that she had “been through the same thing,” i.e., “[m]y
mom’s boyfriend messed with me when I was younger, and I — I knew it was
probably that.”
C.S. testified that she told Father what M.F. had disclosed to her, and
they went to the police — first to a Cleveland police station, then to the Maple
Heights police station — to make a police report. They then went to the hospital.
David Ross (“Ross”), a forensic scientist in the forensic DNA section
of the Ohio Bureau of Criminal Investigation (“BCI” or “the lab”), was established as
an expert in DNA and forensic biology. He testified regarding testing that was done
on evidence collected in the case, which included both serology testing (i.e., testing
for bodily fluids) and DNA extraction and testing. Ross indicated that the lab
received the following evidence for testing: M.F.’s rape kit (State exhibit No. 9), girl’s
white underwear, blue girl’s underwear worn during the incident (State exhibit No.
12), a white t-shirt worn during the incident (State exhibit No. 13), blue jeans worn
during the incident (State exhibit No. 14) and two buccal swabs containing a DNA
standard for Washington (State exhibit No. 11). Ross also identified copies of reports
he had generated on June 9, 2020 and on January 4, 2021 (State exhibit Nos. 6 and
7) and discussed the forensic testing he conducted on the evidence as set forth in his
reports.
Ross’ testimony focused largely on the results of testing conducted on
the blue underwear. Ross testified that he first viewed the blue underwear under an
alternate light source, “basically a black light,” to identify and mark areas “stained”
by bodily fluids. A color-change test then was performed to test for the presence of
acid phosphatase, an enzyme or a protein found in high concentrations in semen.
Areas of color change guided where samples were selected for further testing for
sperm cells and DNA analysis.
Ross testified that a cutting or swabbing was taken from a stained
area of the underwear, placed into a tube with water and “basically beat up” in an
attempt to extract cellular material from the sample. A small amount of fluid was
then removed from the tube, placed on a slide and examined under a microscope.
Ross testified that although a prostate specific antigen test performed on the sample
was “presumptive positive for seminal fluid,” when the sample was examined under
the microscope, no sperm cells were identified. Ross indicated that this did “not
necessarily” mean no sperm cells were present on the underwear. He explained
semen is “not homogenous,” i.e., it has a liquid component and a cellular component
and is “not evenly mixed,” and the results simply indicated that there were no sperm
cells in the small sample taken.
With respect to the DNA analysis conducted on the blue underwear,
Ross testified that where, as here, semen may be present in a sample, they use an
extraction method to attempt to separate sperm cells from other potential sources
of DNA, e.g., epithelial (skin) cells. Chemicals are placed into a tube with the sample
and “will sort of break open, burst open all the weaker, softer cells, and all of that
DNA is left floating in that solution.” Those chemicals, however, “don’t break open
the sperm cells since they’re harder and they’re tougher, [s]o all the sperm cells are
left intact and separate[] from all that DNA.” The tube is spun “really fast,” so that
“all of that DNA stays suspended in that fluid, and if there’s any sperm cells in that
sample, presumably they’re at the bottom of the tube in a little pellet.” The “fluid
with all the other DNA” is extracted from the tube, “leaving only that pellet of sperm
cells.” Harsher chemicals are then added to break open the presumed sperm cells.
What remains is (1) a “sperm fraction,” consisting of DNA that is “presumed” to be
from sperm cells, and (2) the “nonsperm fraction, or epithelial fraction,” consisting
of DNA from “soft cells,” i.e., skin cells, vaginal secretion cells, white blood cells,
“anything that has a soft cell membrane.” On cross-examination, Ross
acknowledged that it could be “considered misleading” or “confusing” to use the
term “sperm fraction” because it was not, in fact, confirmed that any sperm was in
that fraction, i.e., “no sperm cells were identified on the sample where the sperm cell
DNA would be.”
Ross testified that a swab of stained areas in the interior crotch and
rear panel of the blue underwear revealed a DNA mixture of two individuals, M.F.
and an unknown contributor. When compared with Washington’s DNA from the
buccal swab, the DNA profile from the unknown contributor was determined to be
“consistent” with Washington and “rarer than one in one trillion unrelated
individuals,” i.e., in a population of over a trillion people, that DNA profile would be
expected one time. Ross further testified that the DNA profile that was consistent
with Washington was in the “sperm fraction.”
Ross testified that a swab taken from the remainder of the interior of
the blue underwear (“everywhere that there isn’t [a] visibly stained area”) resulted
in a “mixture of more than two individuals” with two major DNA contributors. One
of the major DNA contributors was consistent with M.F. The other was consistent
with Washington and, once again, was “rarer than one in one trillion unrelated
individuals” and was in the “sperm fraction.” Ross could not make any conclusions
as to who or how many people contributed to the other “low level” DNA found in
this sample but indicated that it was “not uncommon” to have “low level DNA
profiles like that on any kind of clothing sample” because “[c]lothing is handled quite
a bit more” and “there is a lot of potential transfer of very low level DNA skins cells,
skin oil, anything like that.”
Ross testified that M.F. was the only major DNA contributor who
could be identified in a sample taken from the exterior stained area of the blue
underwear; Washington was “excluded as the major contributor” and no
conclusions could be drawn as to the other “low levels” of DNA present. A swab
from the remainder of the exterior of the blue underwear (“wherever there was no
visible staining”) included DNA consistent with Washington with a rarity of “1 in 60
million unrelated individuals,” DNA consistent with M.F. and other “low level” DNA
as to which no conclusions could be drawn.
On cross-examination, Ross acknowledged that he could not say,
based on the testing he had performed, that Washington’s sperm was found on
M.F.’s blue underwear, only that Washington’s DNA was found on the underwear.
Russ further acknowledged that he could not determine how Washington’s DNA got
on her underwear.
With respect to the samples collected in the sexual assault evidence
collection kit, Ross testified that as to the hymen and perianal samples, the samples
tested positive for acid phosphatase activity (i.e., indicating the possible presence of
semen), but no DNA profile foreign to M.F. was found. He indicated that oral
samples and samples taken from the external genitalia were likewise positive for
acid phosphatase activity, but no DNA analysis was conducted of those samples or
of the pubic hair combings or fingernail samples that had been collected. Ross
testified that the skin swabs and the jeans and white underwear police collected
tested negative for acid phosphatase activity and that no testing was conducted on
the t-shirt police collected.
Ross stated that his conclusions, as set forth in his reports, were based
on his education, training and experience and were made to a reasonable degree of
scientific certainty.
Mazza, a child protective service worker in CCDCFS’s sex abuse unit,
conducted a forensic interview of M.F. at the agency’s child advocacy center on
May 26, 2020. She described the interview as “non-leading narrative questioning
for survivors of abuse or neglect with developmentally appropriate questions for the
child.”
Mazza testified that, during the interview, M.F. disclosed that she had
been sexually assaulted by Washington on multiple occasions as follows:
● When she was living on Clearaire Avenue in Cleveland,
Washington came into M.F.’s bedroom while she was in bed with
her sisters and “touched her on her private[,] chest and bottom
area” and “put his private inside of her butt.” She saw “white
stuff” “coming from his private.”
● When she was living on Clearaire Avenue in Cleveland, “the same
thing happened” a second time, i.e., Washington came into
M.F.’s bedroom and “put his private in her butt.” She described
it as “feeling hard.”
● At “another house,” at “a location that she didn’t know,”
Washington came into the room and “touched [M.F.] on her
chest and rubbed her on her butt and also put his private in her
butt.”
● While living in Maple Heights, Washington came into the room,
“rubbed her” and “put his private part in her butt and her private
part.” During this time she “felt something on her” “like grease”
that was from “a clear container.”
● M.F. was on the couch in the living room. Washington “came in,
told her to take her pants off and put his private in her butt.” He
“used the grease stuff.” “When he was done,” he “went on his
phone, and then he left.” M.F. “cleaned herself up” in the
bathroom. (According to Mazza, this was the “last incident” that
M.F. had first disclosed to C.S.)
Mazza testified that, following the interview, CCDCFS referred M.F.
for a medical examination and for counseling services at the Cleveland Rape Crisis
Center. She stated that Mother had agreed to allow M.F. to live with Father. Mazza
indicated that six other children were living in Mother’s home at that time and that,
after interviewing and assessing the children, there was no indication Washington
had sexually abused or had otherwise done anything inappropriate to any of the
other children.
Richard Tusing, who was then a detective in the Cleveland Police
Department’s sex crimes and child abuse unit, was assigned to investigate M.F.’s
allegations against Washington. He testified that he “linked up” with Mazza and
contemporaneously observed the interview Mazza conducted of M.F. (over a
monitor in a separate room so M.F. did not know he was observing the interview).
Tusing stated that he generally conducts joint interviews with social workers so that
a child is interviewed only once to avoid the “risk of retraumatizing” the child. After
the interview, Tusing obtained the police reports relating to M.F.’s allegations and
reached out to the Maple Heights detective assigned to the case to determine the
status of its investigation. Tusing thereafter “took the lead” on the case, issued a
warrant for Washington, interviewed Washington, watched a recorded interview of
M.F. conducted by Cleveland police and initiated charges. Although he was aware
that Maple Heights police had also conducted an interview of M.F. prior to his
involvement in the case, he did not watch the recording of the interview Maple
Heights police conducted.
In addition to witness testimony, the state introduced the consent-to-
search signed by Mother, copies of photographs 0f M.F.’s bedroom, bedroom closet,
the clothing collected by police and Mazza’s interview of M.F., reports of the testing
conducted by Ross, M.F.’s medical records from the SANE examination, the sexual
assault evidence collection kit, the buccal swabs containing Washington’s DNA
sample and M.F.’s blue underwear, t-shirt and blue jeans — all of which was
admitted into evidence without objection.
At the conclusion of the state’s case, Washington moved for acquittal
on all counts pursuant to Crim.R. 29 based on the lack of specificity regarding the
sexual crimes and the timeframes during which they allegedly occurred. The trial
court granted the motion as to Counts 6 and 8, concluding that there was insufficient
evidence of vaginal penetration. The trial court also granted the state leave to amend
Count 9 to refer only to the touching of M.F.’s vagina and to delete references to
touching her butt and chest.
Washington then testified in his defense. Washington testified that
he and Mother had a nine-year-old son together and that they had been together “off
and on” for nine or ten “good” years. He stated that he had known M.F. since she
was approximately one year old.
Washington testified that he began living with Mother and her
children in 2011 at a home on East 105th Street and Barrett Avenue in Cleveland and
that they moved to Clearaire Avenue in 2015. Washington indicated that he was
incarcerated for a parole violation between June 2018 and December 5, 2018 and
that when he got out of prison, he stayed at a shelter, lived with his sisters and then
lived with a roommate. Washington stated that he was not in contact with Mother
during this time period because Mother had rekindled her relationship with Father
and that Washington, therefore, never lived, visited or stayed over at the Clearaire
Avenue residence after his release from prison.
Washington testified that in February 2019, when Mother and her
children lived at the Alice Avenue residence, he started talking to her again and
“stayed a couple nights” there. He indicated that he began spending more time with
the family beginning in May 2019, staying with them “off and on.” In the summer
of 2019, Washington moved Mother and her children to Maple Heights.
Washington testified that, at that time, his relationship with both Mother and M.F.
was “excellent” and that, to his knowledge, M.F. liked and loved him. Washington
stated that he never disciplined M.F.; Mother disciplined her.
Washington testified that he was a “father figure” and acted like a
“dad” to all of Mother’s children, “taking them to school, fixing them something to
eat, doing [their] laundry, * * * taking them to the park, going out to eat * * * just
doing things with them as a family.” Washington stated that M.F. never called him
“dad” because “[s]he knew who her dad was.”
Washington testified that when the police showed up to investigate
allegations that he had sexually assaulted M.F., he was “surprised.” He explained:
I was just overwhelmed, you know. Just I don’t know what to expect.
It was just very — I was like ashamed. I just felt bad. I just felt bad. I
felt like, you know, felt bad, man. * * * Because I knew, you know — just
knew what it was about, you know. I just knew that this was some type
of — it was just a situation where I probably didn’t want to actually deal
with. It was just I couldn’t deal with it, you know. It was very upsetting.
It was very upsetting, you know. * * * I was in bed, you know. I wasn’t
expecting that, you know. I never — that never happened to me in my
life. I wasn’t expecting that.
When asked whether he knew whether police “were going to find [his]
DNA in [M.F.’s] underwear,” Washington replied, “[M]y DNA is everywhere” and
“is on all the clothing” because “I do laundry and wash clothing, all that.” When
asked whether he knew whether police “were going to find a stain of [his] DNA in
[M.F.’s] underwear,” Washington replied, “I guess.” He explained that when the
police showed up in the middle of the night, he knew “it was going to be some
bulls***,” “I just knew it was something going on. It was something that was out of
the ordinary.”
Washington testified that, at the request of police, he gave a
statement, provided a DNA sample and allowed the police to search his home, take
pictures and talk to the other children. Washington denied ever touching or doing
anything inappropriate to M.F. or any of Mother’s other children and stated that he
loved Mother and all her children. Washington testified that when he learned that
M.F. had alleged he raped her, he “didn’t know what to think.” “It was just crazy. It
was just crazy. I didn’t know how to react to that.”
At the conclusion of Washington’s testimony, he renewed his motion
for acquittal. The trial court denied the motion.
Before the case was submitted to the jury, the trial court renumbered
the counts, i.e., Count 7 became Count 6, Count 9 became Count 7, Count 10 became
Count 8, Count 11 became Count 9 and Count 12 became Count 10.
The jury found Washington guilty on all of these counts, i.e., anal rape
in violation of R.C. 2907.02(A)(1)(b) in Counts 1, 3, 4, renumbered Count 6,
renumbered Count 9 and renumbered Count 103 and gross sexual imposition in
violation of R.C. 2907.05(A)(4) in Counts 2, 5, renumbered Count 7 and renumbered
Count 8 of the indictment.4 The trial court found Washington guilty of the notice-
of-prior-conviction and repeat-violent-offender specifications as charged in Counts
1, 3, 4, renumbered Count 6, renumbered Count 9 and renumbered Count 10.
The trial court sentenced Washington to life in prison without the
possibility of parole on Counts 1, 3, 4, renumbered Count 6, renumbered Count 9
and renumbered Count 10 (the rape counts).5 The trial court imposed five-year
3As charged in the indictment, Counts 11 and 12 (renumbered as Counts 9 and 10)
involved rape of a child “who was under thirteen years of age but ten years of age or older
at the time of the commission of the offense.” However, the jury verdict form for
renumbered Count 9, which lists an incident date of “on or about March 22, 2020,”
included a “further finding” by the jury that “at the time of the offense[,] the victim,
[M.F.], was less than 10 years of age, to wit: DOB 1/19/2010.” The jury verdict form for
renumbered Count 10, which lists an incident date range of “on or about March 22, 2020
to May 2, 2020,” similarly included a “further finding” by the jury that “at the time of the
offense[,] the victim, [M.F.], was less than 10 years of age, to wit: DOB 1/19/2010.” No
objection was raised below to the verdict forms, to the jury’s verdicts or findings or to the
sentences imposed based on those verdicts and findings. Because the issue has not been
raised on appeal, we do not further address it here.
4 In its April 27, 2022 sentencing journal entry, the trial court states, “The jury
returns a verdict of not guilty of gross sexual imposition [R.C.] 2907.05(A)(4) F3 as
charged in Count(s) 2 of the indictment,” but, nevertheless, sentenced Washington on
that count. The parties assert in their appellate briefs that the jury acquitted Washington
on that count. However, the trial transcript and the signed verdict forms reveal that the
jury found Washington guilty on that count.
5Although the trial court imposed prison sentences on all counts in its April 27,
2022 sentencing journal entry, the trial court did not impose prison sentences on
renumbered Count 6, renumbered Count 9 or renumbered Court 10 at the sentencing
hearing. At the sentencing hearing, the trial court stated:
prison sentences on Counts 2, 5, renumbered Count 7 and renumbered Count 8 (the
gross sexual imposition counts). It ordered that the sentences on all counts be
served consecutively and designated Washington as a Tier II and Tier III sex
offender/child offender.
Washington appealed, raising the following six assignments of error
for review:
Assignment of Error I:
The trial court erred in entering convictions for rape with allegation of
force which were not supported by sufficient evidence, in violation of
defendant’s right to due process of law, as protected by the Fourteenth
Amendment to the United States Constitution.
Assignment of Error II:
The appellant’s right to due process of law and a fair trial was violated
by repeated references to the complainant as the “victim” by the court,
the prosecutor and witnesses, all in violation of the rights guaranteed
by the Sixth and Fourteenth Amendments.
Assignment of Error III:
The verdicts finding the appellant guilty of rape were against the
manifest weight of the evidence.
Assignment of Error IV:
The trial court erred in failing to properly charge the jury relative to the
elements of force required under Ohio law and the failure to do so is
plain error.
Well, Count 1 of course is life without parole. Count 2 is 5 years, 1 to 5
years. * * * Count 3 is also life without parole as is Count 4, and I think that’s
it.
Gross sexual imposition, the Court would sentence the Defendant to
the maximum of five years on those cases. The Court would run those
consecutive if something happens to the other counts on appeal.
No objection was raised to Washington’s sentences below. Once again, because the issue
has not been raised on appeal, we do not further address it here.
Assignment of Error V:
The appellant was deprived of his right to effective assistance of counsel
as guaranteed by the Sixth Amendment to the United States
Constitution.
Assignment of Error VI:
A sentence of life without the possibility of parole constitutes cruel and
unusual punishment in violation of Art. I, Sections 9, 10 and 16 of the
Ohio Constitution and the Eighth and Fourteenth Amendments to the
U.S. Constitution.
For ease of discussion, we review Washington’s assignments of error
out of order and together where appropriate.
Law and Analysis
Jury Instructions Regarding “Force”
In his fourth assignment of error, Washington contends that the trial
court failed to properly instruct the jury “relative to the elements of force” on each
of his rape counts.6
6 In his appellate briefs, Washington asserts that the jury’s finding of force
“triggered” his “life sentence.” Appellant’s Br. at 15, 26, 29; Reply Br. at 2-3. However,
the jury’s verdicts on each of the rape counts of which Washington was convicted included
a finding (which Washington has not challenged on appeal), that the victim was under the
age of 10 at the time of the commission of the offense. If there had been no finding of
force, for each rape offense, the trial court would have had the option of sentencing
Washington to 15 years to life in prison under R.C. 2971.03(B)(1)(b) or to life without
parole under R.C. 2907.02(B) for the rape of a victim under the age of 10. See also State
v. Bowers, 163 Ohio St.3d 28, 2020-Ohio-5167, 167 N.E.3d 947, ¶ 3, 5, 23; State v.
Johnson, 8th Dist. Cuyahoga No. 109127, 2020-Ohio-2947, ¶ 8-14; State v. White, 1st
Dist. Hamilton No. C-190589, 2021-Ohio-1644, ¶ 104. Based on the jury’s further finding
of force, for each rape offense, the trial court had the option of sentencing Washington to
25 years to life in prison under R.C. 2971.03(B)(1)(c) or to life without parole under R.C.
2907.02(B). Bowers at ¶ 16-17, 19-21. Given that the trial court sentenced Washington
to life without parole and had the authority to do so under R.C. 2907.02(B) even in the
absence of a finding of force, Washington’s “force” arguments in his first, third and fourth
assignments of error would appear to be moot. However, even if we were to consider
Washington’s “force” arguments, for the reasons set forth below, they are meritless.
Crim.R. 30(A) states, in relevant part: “On appeal, a party may not
assign as error the giving or the failure to give any instructions unless the party
objects before the jury retires to consider its verdict, stating specifically the matter
objected to and the grounds of the objection.” Under Crim.R. 52(B), however,
“[p]lain errors or defects affecting substantial rights may be noticed although they
were not brought to the attention of the court.” Washington did not object to the
trial court’s jury instructions below. Accordingly, he has forfeited all but plain error.
Plain error is an obvious error or defect in the trial court proceedings
that affects a substantial right. State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-
2459, 38 N.E.3d 860, ¶ 22. Plain error requires a showing that there was an error,
that the error was plain or obvious, that but for the error the outcome of the
proceeding would have been otherwise and that reversal is necessary to correct a
manifest miscarriage of justice. State v. Buttery, 162 Ohio St.3d 10, 2020-Ohio-
2998, 164 N.E.3d 294, ¶ 7, citing State v. Quarterman, 140 Ohio St.3d 464, 2014-
Ohio-4034, 19 N.E.3d 900, ¶ 16. The party asserting plain error “bears the burden
of proof to demonstrate plain error on the record.” Rogers at ¶ 22, citing
Quarterman at ¶ 16.
In considering a claim of plain error based on defective jury
instructions, “an appellate court must review the [jury] instructions as a whole and
the entire record to determine whether a manifest miscarriage of justice has
occurred as a result of the error in the instructions.” State v. Wamsley, 117 Ohio
St.3d 388, 2008-Ohio-1195, 884 N.E.2d 45, ¶ 17. An improper or erroneous jury
instruction does not constitute plain error unless, but for the error, the outcome of
the trial would clearly have been different. State v. Davis, 8th Dist. Cuyahoga No.
109890, 2021-Ohio-2311, ¶ 30, citing State v. Cooperrider, 4 Ohio St.3d 226, 227-
228, 448 N.E.2d 452 (1983). We find no such error here.
In this case, each rape count included a furthermore clause alleging
that “the defendant purposefully compelled the victim * * * to submit by force or
threat of force.” With respect to the “force” element, the trial court instructed the
jury, in relevant part, as follows:
If your verdict is guilty, you will separately decide beyond a
reasonable doubt whether the Defendant purposely compelled [M.F.]
to submit by force or threat of force. * * *
Force means any violence, compulsion or constraint physically
exerted by any means upon or against a person or things.
When the relationship between the victim and the Defendant is
one of child and pseudo step-father and/or mother’s boyfriend, the
element of force need not be openly displayed or physically brutal. It
can be subtle, slight, psychologic, emotionally powerful. Evidence of
an express threat of harm or evidence of significant physical restraint
is not required. If you find beyond a reasonable doubt that under the
circumstances in evidence the victim’s will was overcome by fear or
duress or intimidation, the element of force has been proved.
Threat includes a direct and indirect threat.
Tr. 702, 704-705.
Washington contends that the trial court’s jury instructions regarding
the issue of “force” were “incomplete,” that the trial court “[e]ssentially” instructed
the jury that “to satisfy the element of force they need only find there was a parent-
child relationship” and that, pursuant to the Ohio Supreme Court’s decision in State
v. Dye, 82 Ohio St.3d 323, 695 N.E.2d 763 (1988), “more was required,” i.e., the trial
court needed to instruct the jury that “in addition to the parent-child relationship[,]
it must be shown that that relationship cause[d] the victim’s will to be overcome by
fear or duress,” “not just” that fear, duress or intimidation “may be inferred once the
[parental or pseudo-parental] relationship is established.” We disagree.
In support of his argument, Washington cites — not to the trial court’s
jury instructions, but to the state’s closing argument — and asserts that “[t]he
prosecutor’s legally incorrect definition led the jury to believe that they had only to
find the relationship.” Again, Washington did not object to the statements by the
assistant prosecuting attorney at trial.
The trial court repeatedly instructed the jury that it is “[t]he trial
judge” who “instructs the jury as to the law governing the case” and that it is “the
function of the jury to decide the facts, apply the law received from the trial judge to
those facts, and then determine the guilt or non-guilt of the accused.” Tr. 115-116;
see also tr. 126-127 (“You may not apply Judge Judy’s law, CSI, Law & Order or any
other source of law other than this Court. You must apply the law as the Court states
it to be.”); Tr. 128 (“[T]his case must be decided solely from the evidence presented
in this Court and the law, as the Judge states the law to be.”); Tr. 687-688 (“You
decide the disputed facts and the Court provides the instructions of law. These
instructions are to be taken, or read, as a whole. It is your sworn duty to accept these
instructions and apply the law as it is given to you * * * apart from any notion or
opinion of any kind * * * which you may have as to what the law is or what the law
ought to be in the particular case.”); Tr. n718 (“The rules of law which are explained
to you in these instructions are binding upon the individual conscience and
judgment of each member of the jury.”). We presume that the jury followed the trial
court’s instructions. See, e.g., State v. Mammone, 139 Ohio St.3d 467, 2014-Ohio-
1942, 13 N.E.3d 1051, ¶ 147; State v. Wilson, 8th Dist. Cuyahoga No. 111814, 2023-
Ohio-1046, ¶ 19, citing State v. Ahmed, 103 Ohio St.3d 27, 2004-Ohio-4190, 813
N.E.2d 637, ¶ 147; State v. Jackson, 8th Dist. Cuyahoga No. 111602, 2023-Ohio-455,
¶ 45. Accordingly, even if the assistant prosecuting attorney had misstated the law,
Washington has not shown that it impacted the jury’s verdicts here.
In Dye, 82 Ohio St.3d 323, 695 N.E.2d 763, the Ohio Supreme Court,
applying its decision in State v. Eskridge, 38 Ohio St.3d 56, 526 N.E.2d 304 (1988),
held that “a person in a position of authority over a child under thirteen may be
convicted of rape of that child with force pursuant to R.C. 2907.02(A)(1)(b) and (B)
without evidence of express threat of harm or evidence of significant physical
restraint.” Dye at 323, 329.
In Eskridge, the Ohio Supreme Court had considered “whether there
was substantial evidence presented at trial to prove that force or the threat of force
was used in the commission of the rape” where a 28-year-old father had raped his
four-year-old daughter but there were “no explicit threats or displays of force.”
Eskridge at 57, 59. In upholding the defendant’s conviction, the court stated:
“The force and violence necessary in rape is naturally a relative term,
depending upon the age, size and strength of the parties and their
relation to each other * * *. With the filial obligation of obedience to
the parent, the same degree of force and violence would not be required
upon a person of such tender years, as would be required were the
parties more nearly equal in age, size and strength.” State v. Labu, 102
Ohio St. 26, 38-39, 130 N.E. 161 (1921). * * *
We also recognize the coercion inherent in parental authority when a
father sexually abuses his child. “* * * Force need not be overt and
physically brutal, but can be subtle and psychological. As long as it can
be shown that the rape victim’s will was overcome by fear or duress, the
forcible element of rape can be established. * * * In the within case, we
are confronted with a child being told to do something by an important
figure of authority, and commanded not to tell anyone about it. In such
a case, we find nothing unreasonable about a finding that the child’s
will was overcome. Consequently, the forcible element of rape was
properly established.” State v. Fowler, 27 Ohio App.3d 149, 154, 500
N.E. 2d 390 (8th Dist.).
***
The youth and vulnerability of children, coupled with the power
inherent in a parent’s position of authority, creates a unique situation
of dominance and control in which explicit threats and displays of force
are not necessary to effect the abuser’s purpose.
Eskridge at 58-59.
In Dye, the Ohio Supreme Court extended its holding in Eskridge to
a person who was not the parent of the young child victim but who stood in a position
of authority over the victim. In Dye, a 9-year-old victim had been sexually assaulted
by a 44-year-old friend of the victim’s mother, who had known the defendant for
many years and with whom the child had maintained a close relationship, visiting
and staying at the defendant’s residence approximately once a week. Dye at 328.
The court found that there was sufficient evidence of “force” based on the age and
size disparity between the victim and the offender and the psychological force
arising out of the defendant’s position of authority over the young victim and the
defendant’s statements to the victim that he should keep the abuse secret. Id. at
328-329. The court explained:
“State v. Eskridge is based solely on the recognition of the amount of
control that parents have over their children, particularly young
children.” [State v. Schaim, 65 Ohio St.3d 51, 55, 600 N.E.2d 661(1992)]. We concluded that “because of the child’s dependence on his
or her parents, a child of tender years has no real power to resist his or
her parent’s command, and every command contains an implicit threat
of punishment for failure to obey.” Id.We recognize that it is nearly impossible to imagine the rape of a child
without force involved. * * * Yet ‘“force need not be overt and physically
brutal, but can be subtle and psychological. As long as it can be shown
that the rape victim’s will was overcome by fear or duress, the forcible
element of rape can be established.’” Eskridge, 38 Ohio St.3d at 58-59,
526 N.E.2d at 306, [quoting Fowler at 154]. * * *
In the present case, * * * [t]he defendant was a five-foot, nine-inch, one-
hundred-thirty-five-pound man, while David was an approximately
seventy-seven-pound child. * * * In the present case, nine-year-old
David was forced to submit to the authority of a forty-four-year-old
man who was not his parent, but who stood in a position of authority
over him. David’s mother had known the defendant for seven years and
David had maintained a close relationship with the defendant over that
time, visiting and staying at the defendant’s residence approximately
once a week. David considered the defendant to be his friend until
these events occurred. Clearly, the defendant was an important figure
of authority in David’s life. In addition, * * * the defendant told David
to keep the sexual abuse a secret.
Most important, when David’s mother dropped David off at the
defendant’s residence or when the defendant picked David up and took
him to his home, David’s mother told him to mind the defendant, and
not to aggravate him, or she would come and pick him up or the
defendant would bring him home. * * * When parents tell their children
that the caregiver is in charge and that the children should mind the
caregiver, that caregiver occupies the same position of authority as the
parent traditionally would.
Dye at 327-329.
The trial court’s jury instructions on “force” explain, consistent with
Ohio law, that when a parental relationship or “pseudo-parental relationship” exists
between an alleged victim and offender, “force” need not be direct, overt and
physical and may instead be exhibited through a “subtle, slight, psychologic,
emotional[] power[].” The jury instructions also make it clear that a finding of force
is warranted only where the jury finds, beyond a reasonable doubt, that “the victim’s
will was overcome by fear or duress or intimidation”: “If you find beyond a
reasonable doubt that under the circumstances in evidence the victim’s will was
overcome by fear or duress or intimidation, the element of force has been proved.”
Washington did not offer below, and does not identify here, any
additional or different “complete” jury instructions he contends the trial court
should have given in this case. This court has previously reviewed instructions
similar to the “force” instructions given to the jury in this case and has found that
the instructions “comport[] with the definition of ‘force’ applied in * * * Dye.” See,
e.g., State v. Milam, 8th Dist. Cuyahoga No. 86268, 2006-Ohio-4742, ¶ 33-34; see
also State v. Musgrave, 9th Dist. Summit No. 18260, 1998 Ohio App. LEXIS 5557,
7-9 (Nov. 25, 1998).
We find no error, plain or otherwise, in the trial court’s “force”
instructions. Washington’s fourth assignment of error is overruled.
Sufficiency of the Evidence
In his first assignment of error, Washington argues that his rape
convictions should be reversed because there was insufficient evidence of
“penetration” to support his convictions for anal rape (Counts 1, 3, 4, renumbered
Count 6 and renumbered Count 10). He also contends that there was insufficient
evidence of “force” to support the jury’s findings that Washington compelled M.F.
to submit by force or threat of force on all the rape charges (Counts 1, 3, 4,
renumbered Count 6, renumbered Count 9 and renumbered Count 10).
A challenge to the sufficiency of the evidence supporting a conviction
requires a determination of whether the state has met its burden of production at
trial. State v. Messenger, Slip Opinion No. 2022-Ohio-4562, ¶ 26;
State v. Pierce, 8th Dist. Cuyahoga No. 111605, 2023-Ohio-528, ¶ 16. Whether the
evidence is legally sufficient to support a verdict is a question of law. State v.
Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).
An appellate court’s function when reviewing the sufficiency of
evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, would convince a reasonable
juror of the defendant’s guilt beyond a reasonable doubt. Id.; see also State v.
Bankston, 10th Dist. Franklin No. 08AP-668, 2009-Ohio-754, ¶ 4 (noting that “in a
sufficiency of the evidence review, an appellate court does not engage in a
determination of witness credibility; rather, it essentially assumes the state’s
witnesses testified truthfully and determines if that testimony satisfies each element
of the crime”). The appellate court must determine ‘“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. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting
State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the
syllabus.
Washington was convicted of rape in violation of R.C.
2907.02(A)(1)(b). That provision states, in relevant part: “No 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.” In addition, the jury found, as to each count of
rape, that Washington “purposely compelled” M.F. “to submit by force or threat of
force.”
R.C. 2907.01(A) defines “sexual conduct” as “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.” Id.Evidence of Anal Penetration
Washington argues that to support his convictions for anal rape, i.e.,
to prove the element of “penetration, however slight,” the state needed to prove
beyond a reasonable doubt that Washington inserted his penis into M.F.’s anal
cavity, i.e., “into the anus” not just on or into her “buttocks.” He contends that there
was insufficient evidence of anal penetration to support his convictions for anal rape
because (1) none of the witnesses specifically used the word “penetrated” or
“penetration” in describing what Washington had done to M.F., (2) M.F.’s testimony
and her statements to Lott and Mazza that Washington had put his penis “in” her
butt did not establish “penetration” and (3) there was “no objective medical evidence
to support the element of penetration for any of the counts charging anal rape.” We
disagree.
In support of his arguments, Washington cites State v. Wells, 91 Ohio
St.3d 32, 740 N.E.2d 1097 (2001), State v. Remy, 2d Dist. Clark No. 2017-CA-6,
2018-Ohio-2856, and In re D.C., 2018-Ohio-163, 104 N.E.3d 121 (8th Dist.)
In Wells, the Ohio Supreme Court analyzed the meaning of
penetration of the “anal cavity,” as used in former R.C. 2907.01(A), when “read
together” with “anal intercourse.”7 Id. at 34. The court held that, as the “everyday
7 Prior to August 3, 2006, R.C. 2907.01(A) defined sexual conduct as including the
insertion, however slight, of any body part or object into the “vaginal or anal cavity of
another.” In 2005 H.B. No. 95, the General Assembly replaced the word “cavity” with the
word “opening.” State v. Patterson, 5th Dist. Tuscarawas No. 2020 AP 12 0025, 2021 Ohio
App. LEXIS 2361, 8 (July 12, 2021); State v. D.H., 10th Dist. Franklin No. 16AP-501, 2018-
Ohio-559, ¶ 30. Although Washington’s argument focuses on anal “cavity” as used in the
prior version of the statute rather than anal “opening” as used in the version of the statute
in effect when Washington allegedly committed the offenses at issue, no argument has been
made that the difference in verbiage is material here. Accordingly, we need not determine
whether penetration of the anal “cavity” is different from penetration of the anal “opening.”
See State v. Leonard, 8th Dist. Cuyahoga No. 98626, 2013-Ohio-1446, ¶ 34-39 (declining
to address claim that “the term ‘opening’ implies a lesser form of penetration that includes
the surface of buttocks only” than the term “cavity” where claim was not supported by any
citations to authority and victim testified that defendant “stuck his penis in me” and “stuck
[his penis] in my behind, sir. My anus,” concluding that the evidence was “sufficient to show
the element of sexual conduct under either term”). But cf. Patterson at 9 (observing, as it
relates to the vagina, that “the term vaginal cavity would appear to require further
penetration into the vaginal canal than the term vaginal opening”) (emphasis sic); D.H. at
¶ 47 (observing that “as the court only provided the jury with the vaginal cavity definition
without further explanation, the court arguably made the state’s proof more difficult, as the
meaning of ‘cavity’ is ‘a natural hollow place within the body,’” “penetration into the
anal cavity occurs when some part of the body or any other item is inserted into the
anus” and evidence that the defendant had “made contact only with the victim’s
buttocks” was not sufficient to prove anal rape. (Emphasis deleted.) Id. at 34-35,
quoting Webster’s New World Dictionary 224 (3d Ed.1991).
Washington also cites to portions of the Second District’s decision in
Remy, which “clarif[ed] what evidence is legally sufficient to establish * * * anal
penetration,” as follows:
“Rape, both vaginal and anal, requires intercourse involving
penetration of a particular bodily cavity. A ‘cavity’ is a hollow space
within a mass. Webster’s Third International Dictionary. Intercourse
occurs with penetration of the cavity, ‘however slight’ that penetration
may be. R.C. 2907.01(A). Evidence of penetration differs for these
purposes, however, because there is a significant anatomical difference
between those particular bodily cavities.
Anal rape requires penetration of the anal cavity. The anus is the
sphincteral muscle in the structure at the base of the alimentary canal
called the rectum, which lies below the buttocks. The anal cavity is a
hollow that lies within the anus. Penetration of the anal cavity requires
entry through the anus. The ‘however slight’ standard in R.C.
2907.01(A) permits a finding that anal intercourse has occurred when
there is evidence of some forceful spreading of the anus by the object
concerned. A spreading of only the buttocks, which forms no part of
the anal cavity, is therefore insufficient for anal rape. [Wells at 34.]”
Remy at ¶ 27, quoting State v. Grant, 2d Dist. Montgomery No. 19824, 2003-Ohio-
7240, ¶ 27-28.
term vaginal cavity appears to require further penetration into the vaginal canal than the
term vaginal opening”).
In Remy, however, the court held that evidence of a child’s statements
that the defendant had used his private “to touch her private in the back where she
poops” and “hurt her butt with her [sic] private parts” was sufficient to establish that
defendant penetrated her anus with his penis for purposes of anal rape convictions
and that evidence of a child’s statements that the defendant had touched her “in”
her “private parts,” which she identified as both her vaginal and anal areas, was
sufficient to establish that that defendant had digitally penetrated the child’s vagina
and anus for purpose of vaginal and anal rape convictions. Remy at ¶ 29-45.
In In re D.C., this court held that the juvenile court erred by
adjudicating an alleged juvenile offender, D.C., delinquent for rape where it was
alleged that D.C. made the victim insert his own finger into his own anus. Id. at ¶ 2,
5, 8-9. When asked what D.C. did to the victim’s finger, the victim (who was 8 at the
time of the offense and 12 at the time of trial) testified: “He drove my hand with his
own hand. * * * At my rear. He drove my hand to my rear, and then — * * * [h]eld
my hand and he held it up to my bottom, and then —[i]nto my bottom.” Id. at ¶ 5.
No further testimony was cited in the opinion. Although recognizing that the victim
testified D.C. drove his hand “into” his “bottom,” the court held that, “without
additional context, we cannot conclude the word ‘bottom’ meant anal opening as
opposed to merely between the cheeks of the victim’s buttocks.” Id. at ¶ 8.
The court explained:
Child victims tend to have a limited understanding of human
physiology. This fact and the tendency of parents to have their children
use euphemisms for intimate parts of the body make it difficult to know
exactly what children mean when they give testimony about certain
sexual conduct. The inherent imprecision of euphemisms for intimate
body parts becomes an issue for purposes of anal rape. “If the evidence
shows that the defendant made contact only with the victim’s buttocks,
there is not sufficient evidence to prove the defendant guilty of the
crime of anal rape.” State v. Wells, 91 Ohio St.3d 32, 740 N.E.2d 1097(2001).
In cases finding sufficient proof of anal penetration, victims have
given testimony showing actual penetration. See, e.g., State v.
Landers, 2d Dist. Greene No. 2015-CA-74, 2017-Ohio-1194, ¶ 79
(victim testified that “penis went ‘in’ her ‘butt’ and went into her
‘butthole,’ but not all the way”); State v. Phillips, 6th Dist. Lucas No. L-
09-1149, 2010-Ohio-2577, ¶ 58 (victim testified she felt what she
believed was fingers “in my bottom” and answered affirmatively when
asked if “fingers in her bottom meant your butt where you go to poop
out of?”); State v. Molen, 2d Dist. Montgomery No. 21941, 2008-Ohio-
6237, ¶ 31 (victim testified that defendant shoved something “up his
butt” and that what had been put in his butt was “tickling [his]
stomach”). That kind of evidence is not present in this case.
The victim’s testimony did not establish what he meant by his
bottom.” Nor does the testimony indicate that penetration of the anal
opening occurred. We acknowledge that the victim testified that D.C.
drove his hand “into” his bottom, but without additional context, we
cannot conclude that the word “bottom” meant anal opening as
opposed to merely between the cheeks of the victim’s buttocks.
We are aware that it can be difficult to elicit from a child victim
the kind of specificity needed to prove the penetration required to
establish an anal rape. But as this testimony stands, the essential
element of anal penetration was not proven, despite the state’s
contention otherwise. We have no choice but to conclude that the
state’s evidence was insufficient to establish penetration of the anal
opening.
In re D.C. at ¶ 6-9.
This is not a case in which the evidence supported a finding that the
defendant “made contact only” with “the victim’s buttocks” or “bottom.” In In re
M.P., 8th Dist. Cuyahoga No. 111608, 2023-Ohio-925, this court distinguished In re
D.C. and held that there was sufficient evidence of anal penetration to support a rape
conviction where the child victim stated that “poop comes out of his bottom,” that
the defendant placed his private “inside” the child’s bottom and “in his butt” and
that when the defendant did this, it hurt. Id at ¶ 39, 42. M.F.’s statements in this
case are more akin to those of the child victims in Remy and In re M.P. than those
of the child victim in In re D.C.
In this case, M.F. used the word “butt” rather than “bottom.”
Further, it could be discerned from M.F.’s statements and testimony that she
understood and appreciated the difference between “on” and “outside” and “in” and
“inside.” ‘“In’ is defined as ‘within’ and ‘inside of.”’ State v. Garcia, 8th Dist.
Cuyahoga No. 107027, 2022-Ohio-3426, ¶ 45, quoting Webster’s Dictionary (1999).
When describing what Washington had done to her, M.F. repeatedly distinguished
between instances in which Washington had “touched” her “butt” or the “outside”
of her “butt” (or other areas) with his hand or his “private part” and instances in
which Washington had placed his private part “in” or “inside” her “butt.” When
describing the final incident, i.e., the May 2020 incident on the couch at the Turney
Road residence, M.F. testified that Washington had “touched” her butt with his
hands and that he also “touched” and “licked” her private part. With respect to the
issue of anal penetration, M.F. further testified:
Q. Okay. Now, did his private part touch you anywhere?
A. Yes.
Q. And where did his private part touch you?
A. My butt.
Q. Okay. And I’m sorry we have to ask you, [M.F.], okay? Are you
talking about the outside of your butt or somewhere else?
A. Um — somewhere else.
Q. What’s that somewhere else?
A. In.
Q. Did you say in your butt?
A. Yes.
Lott testified that, during her SANE examination, M.F. told her that
Washington “be touching me on my butt and my private part and my chest and stuff”
and that “he put his private part in my butt,” “[w]here the poop comes out.” M.F.
further stated that Washington had put grease on his private part and that “white
stuff” came out of his private part during the May 2020 incident.
As detailed above, M.F. offered similar descriptions of Washington’s
conduct during the four prior incidents. M.F. stated that twice, when she lived on
Clearaire Avenue, Washington entered her bedroom at night and, while she was
sleeping with her sisters, Washington “put his private part in my butt,” which made
her feel “weird.” M.F. testified that when they lived on Alice Avenue, Washington
once “put his private part in my butt and touched my chest.” M.F. stated that, after
the family moved to Turney Road, she was in her room with her sisters at night when
Washington “put his private part in my butt and touched my private part and my
butt.” M.F. testified that during these incidents, Washington would put “grease” on
his private part and that “white stuff” came out of his private part. Lott testified that
M.F. told her that her butt would “hurt” after Washington finished. Mazza offered
similar testimony regarding the five incidents M.F. had disclosed to her in which
Washington had “put his private in [M.F.’s] butt.”
When viewed in the light most favorable to the state, this evidence
was sufficient to establish penetration for purposes of the anal rape counts against
Washington. Based on M.F.’s descriptions of what had occurred, a rational jury
could find beyond a reasonable doubt that Washington had not merely put his penis
on the outside of M.F.’s buttocks or between the cheeks of M.F.’s buttocks but had
penetrated her “anal opening.” See, e.g., In re M.P., 2023-Ohio-925, at ¶ 39, 42;
Garcia, 2022-Ohio-3426, at ¶ 37-48 (child victim’s testimony that defendant “stuck
two fingers in me * * * [i]n my lower area” when her underwear was off was sufficient
to support rape conviction); State v. Phillips, 6th Dist. Lucas No. L-09-1149, 2010-
Ohio-2577, ¶ 57-58 (there was sufficient evidence to support anal rape conviction
where child victim testified she felt what she believed was fingers “in my bottom,”
which she identified as her “butt where you go to poop out of”) (emphasis deleted).
A victim’s testimony regarding penetration “need not be corroborated by the
medical evidence.” State v. Scott, 8th Dist. Cuyahoga No. 110744, 2022-Ohio-2768,
¶ 38, citing State v. Nivens, 10th Dist. Franklin No. 95APA09-1236, 1996 Ohio App.
LEXIS 2245, 6 (May 28, 1996).
Evidence of Force
Washington also contends that there was insufficient evidence to
establish the element of force as to each of the rape charges of which he was
convicted. He argues that his rape convictions should be overturned because (1) the
state improperly told the jury during closing argument that “they could satisfy the
element of force simply by finding the parent-child relationship,” (2) the trial court
failed to instruct the jury that ‘“fear, duress or intimidation’ must be proven to be
the result of the relationship, not just that it may be inferred once the relationship is
established” and (3) “even if properly charged,” there was insufficient evidence of
force.
We have already rejected Washington’s arguments relating to the
jury instructions and the state’s closing argument above. Accordingly, we now turn
to Washington’s argument that “even if properly charged,” there was insufficient
evidence of force. We likewise find this argument to be unavailing.
The type and amount of force necessary to compel a victim to submit
“by force or threat of force” depends upon the age, size, strength and relationship
between the victim and the offender. See, e.g., Eskridge, 38 Ohio St.3d 56, 526
N.E.2d 304, at paragraph one of the syllabus; State v. Thomas, 8th Dist. Cuyahoga
No. 107870, 2019-Ohio-3767, ¶ 21, citing State v. Labus, 102 Ohio St. 26, 38-39, 130
N.E. 161 (1921). There is no dispute that a parent-like relationship existed between
Washington and M.F. in this case. M.F. testified that she had lived with Washington
most of her life, that he was “kind of like a stepdad” to her and that he would do
“stepdad things” for her and her siblings, e.g., cook dinner, take her to the store and
buy things for her. Mother testified that Washington was a “father figure” or
“stepdad” to M.F. and her other children, i.e., “taking care of the kids, like feeding
them, taking them places * * * like what * * * a dad is supposed to do.” Washington
admitted that he was a “father figure” and acted like a “dad” to all of Mother’s
children, “taking them to school, fixing them something to eat, doing [their] laundry,
* * * taking them to the park, going out to eat * * * just doing things with them as a
family.”
There was also substantial evidence that Washington was an
authority figure, with the ability to exercise control and influence over M.F. M.F.
testified that Washington would be in charge when Mother was not home and that
she would get in trouble if she did not follow his rules. Mother testified that
Washington had authority over M.F. as an adult and a father figure in the home. She
stated that if M.F. violated Washington’s rules while Mother was absent,
Washington would tell Mother about it and Mother would discipline her.
M.F. was between eight and ten years old when Washington raped
her. M.F. testified that Washington had raped her multiple times at night after she
had gone to sleep while M.F.’s younger sisters were sleeping in the same room. She
stated that Washington was “very” quiet when he assaulted her so that he did not
wake Mother or her sisters. M.F. told Mazza that, during the final incident,
Washington came into the living room while she was watching television and told
her to take her pants off. M.F. testified that she was “sad” and “crying” as
Washington raped her on the couch while Mother was sleeping in the basement.
M.F. testified that she never told Mother what Washington had done
to her because she did not feel “safe” doing so. M.F. stated that Washington told her
not to tell anyone and that she was afraid that if she told Mother what Washington
had done, Mother would tell Washington what she had said.
As indicated above, where, as here, an alleged offender assumes a
parent-like role and is in a position of authority over his young child victim, “force”
“need not be openly displayed or physically brutal” but can be “subtle and
psychological.” See, e.g., Dye, 82 Ohio St.3d at 327-329, 695 N.E.2d 763; Eskridge,
38 Ohio St.3d at 57-59, 526 N.E.2d 304; Scott, 2022-Ohio-2768, at ¶ 41. When
viewed in the light most favorable to the state, the evidence presented at trial was
sufficient to establish “force,” i.e., that M.F.’s will had been overcome by fear, duress
or intimidation, for purposes of the rape counts against Washington. Contrary to
Washington’s assertion, the state was not required to “ask [M.F.] whether she felt
that her will was overcome by virtue of [her] relationship” with Washington to prove
“force.” It is well established that the elements of an offense may be proven by
circumstantial evidence as well as by direct evidence. See, e.g., Scott at ¶ 42-43;
State v. Bradshaw, 3d Dist. Logan No. 8-22-09, 2023-Ohio-1244, ¶ 52.
The evidence presented at trial was sufficient to establish the
penetration and force elements of each of the rape counts of which Washington was
convicted. Accordingly, we overrule Washington’s first assignment of error.
Manifest Weight of the Evidence
In his third assignment of error, Washington challenges his rape
convictions on manifest-weight grounds.
In contrast to a challenge based on sufficiency of the evidence, a
manifest-weight challenge questions whether the state met its burden of persuasion.
State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 13. ‘“[W]eight
of the evidence involves the inclination of the greater amount of credible evidence.’”
State v. Harris, 8th Dist. Cuyahoga No. 109060, 2021-Ohio-856, ¶ 32, quoting
Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541. On a manifest-weight challenge,
the reviewing court asks “whose evidence is more persuasive — the state’s or the
defendant’s?” State v. Williams, 8th Dist. Cuyahoga No. 108275, 2020-Ohio-269,
¶ 86, citing State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264,
¶ 25.
When considering an appellant’s claim that a conviction is against
the manifest weight of the evidence, the appellate court functions as a “thirteenth
juror” and may disagree “with the factfinder’s resolution of * * * conflicting
testimony.” Thompkins at 387, citing Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct.
2211, 72 L.Ed.2d 652 (1982). The appellate court examines the entire record, weighs
the evidence and all reasonable inferences that may be drawn therefrom, considers
the witnesses’ credibility and determines 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.’”
Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d
717 (1st Dist.1983). Reversal on manifest-weight grounds is reserved for the
‘“exceptional case in which the evidence weighs heavily against the conviction.’”
Thompkins at 387, quoting Martin at 175.
In support of his manifest-weight challenge, Washington simply
“incorporates by reference the argument[s]” raised in his first assignment of error
challenging the sufficiency of the evidence and asserts (without further explanation,
argument or citation to the record) that M.F.’s “extremely vague” testimony on the
issue of penetration and the remaining evidence (or the “lack thereof”) “causes [the
jury’s] verdicts to be against the manifest weight of the evidence.”
An appellant’s brief must include “[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). An appellate court is not obliged to construct or develop arguments to
support a defendant's assignment of error and ‘“will not “guess at undeveloped
claims on appeal.’”’ State v. Jacinto, 2020-Ohio-3722, 155 N.E.3d 1056, ¶ 56 (8th
Dist.), quoting State v. Piatt, 2020-Ohio-1177, 153 N.E.3d 573, ¶ 39 (9th Dist.),
quoting McPherson v. Goodyear Tire & Rubber Co., 9th Dist. Summit No. 21499,
2003-Ohio-7190, ¶ 31; see also State v. Collins, 8th Dist. Cuyahoga No. 89668,
2008-Ohio-2363, ¶ 91 (‘“[I]t is not the duty of this Court to develop an argument in
support of an assignment of error if one exists.’”), quoting State v. Franklin, 9th
Dist. Summit No. 22771, 2006-Ohio-4569, ¶ 19; see also Bradshaw, 2023-Ohio-
1244, at ¶ 68 (noting that an appellate court need not construct and then resolve, a
manifest-weight argument on behalf of the defendant where defendant’s manifest-
weight challenge “simply duplicates claims he made when challenging the
sufficiency of the evidence supporting the same claims”), citing State v. Laws, 3d
Dist. Allen No. 1-20-10, 2021-Ohio-166, ¶ 32.
Even if Washington’s “incorpor[ation] by reference” of arguments
from other sections of his appellate brief were sufficient to comply with his
obligation to argue each assignment of error “separately in the brief,” as required
under App.R. 12(A)(2) and 16(A)(7), we would find his arguments to be meritless.
A conviction may rest solely on the testimony of a single witness,
including the alleged victim, if it is believed, and there is no requirement that a
witness’ testimony be corroborated to be believed. See, e.g., State v. Nicholson, 8th
Dist. Cuyahoga No. 110595, 2022-Ohio-2037, ¶ 180; State v. Flores-Santiago, 8th
Dist. Cuyahoga No. 108458, 2020-Ohio-1274, ¶ 38; State v. Black, 2019-Ohio-4977,
149 N.E.3d 1132, ¶ 43 (8th Dist.). As detailed above, the state presented ample,
credible evidence upon which a reasonable jury could have found, beyond a
reasonable doubt, that Washington raped M.F. as charged.
Here, the jury heard directly from M.F. regarding five incidents in
which Washington “put his private part in [her] butt,” one incident in which he
“licked [her] private part,” other instances of sexual contact with Washington and
where M.F. was living when each of these incidents occurred. Mother testified
regarding the time frames during which the family lived at each of these residences.
The jury also heard detailed testimony from Mazza and Lott regarding what M.F.
had told them about each of the incidents. Throughout the investigation of M.F.’s
allegations of sexual abuse — including interviews with Lott, Mazza and the police
— M.F.’s retelling of what Washington had done to her remained consistent. M.F.
related the same facts to the jury during her testimony at trial.
The serology testing and DNA analysis conducted by Ross further
supported the state’s case against Washington. Ross testified that DNA found on
the underwear M.F. allegedly wore at the time of the May 2020 incident was
consistent with Washington’s DNA and was found in the “sperm fraction” — the area
likely containing sperm cells. Although Washington claimed that his DNA was on
M.F.’s underwear because he did the family’s laundry, a reasonable jury could have
concluded otherwise.
Washington’s general complaints regarding the “vagueness” of
M.F.’s testimony do not compel a finding that his convictions were against the
manifest weight of the evidence. See, e.g., State v. McCall, 8th Dist. Cuyahoga No.
104479, 2017-Ohio-296, ¶ 12-16 (rejecting defendant’s claims that his convictions
for rape by digital and vaginal penetration were against the manifest weight of the
evidence “due to the victim’s uncorroborated, vague, and inconsistent testimony”);
State v. Laseur, 12th Dist. Warren Nos. CA2002-10-117 and CA2002-11-121, 2003-
Ohio-3874, ¶ 16-19 (affirming defendant’s convictions for attempted rape and gross
sexual imposition and overruling manifest-weight challenge based on defendant’s
claim that the “only evidence” supporting his convictions was “the girls’ vague,
uncorroborated testimony”). Likewise, Washington’s convictions were not against
the manifest weight of the evidence merely because the jury believed the testimony
and statements of M.F. over the testimony of Washington where, as here, the jury
could reasonably make that choice. See, e.g., Scott, 2022-Ohio-2768, at ¶ 40 (a
conviction is not against the manifest weight of the evidence merely because the jury
chose to believe the prosecution’s witnesses); State v. Fry, 9th Dist. Medina No.
16CA0057-M, 2017-Ohio-9077, ¶ 13 (“We will not overturn a conviction as being
against the manifest weight of the evidence simply because the trier of fact chose to
believe the State’s version of events over another version.”); State v. Chatman, 10th
Dist. Franklin No. 08AP-803, 2009-Ohio-2504, ¶ 34 (“[A] conviction is not against
the manifest weight of the evidence simply because the trier of fact chose to believe
the prosecution’s witnesses and to not believe appellant.”). Washington has not
shown that M.F.’s testimony and statements were so inherently incredible or
unreliable as to preclude a reasonable fact finder from believing them. As the trier
of fact, the jury was free to believe all, some or none of the testimony of each of the
witnesses appearing before it. State v. Jones, 8th Dist. Cuyahoga No. 108371, 2020-
Ohio-3367, ¶ 85; State v. Sheline, 8th Dist. Cuyahoga No. 106649, 2019-Ohio-528,
¶ 100.
Weighing the strength and credibility of the evidence presented and
the reasonable inferences to be drawn therefrom, we cannot say that the jury clearly
lost its way and created a manifest miscarriage of justice such that Washington’s
convictions must be reversed. This is not the ‘“exceptional case’” in which the
evidence weighs heavily against Washington’s convictions. Thompkins, 78 Ohio
St.3d at 387, 678 N.E.2d 541, quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d
717. Accordingly, we overrule Washington’s third assignment of error.
Referring to M.F. as the “Victim”
In his second assignment of error, Washington argues that he was
deprived of his presumption of innocence and denied his right to a fair trial because,
“[t]hroughout the trial,” the state, witnesses and the trial judge referred to M.F. as
“the victim.” Washington contends that referring to M.F. as “the victim” rather than
“the alleged victim” “lent undue credence to her testimony” and “created a[n]
affirmance by the Court and counsel that [M.F.] was indeed a victim,” “improperly
signal[ling] to the jury that the claimed events had in fact taken place.”
Once again, because Washington failed to object to this below, he
has forfeited all but plain error. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38
N.E.3d 860 at ¶ 3, 21-22.
As the Eleventh District observed in State v. Aboytes, 11th Dist. Lake
No. 2020-L-001, 2020-Ohio-6806:
The term “victim” means “[a] person harmed by a crime, tort, or
other wrong.” VICTIM, Black’s Law Dictionary (11th Ed.2019).
Depending on context, a party’s use of the term “victim” at trial may
imply that the charged offenses occurred, which reduces the state’s
burden of proof. Therefore, it is more appropriate for the parties to use
the phrase “alleged victim” at trial to reflect the defendant’s
presumption of innocence.
Aboytes at ¶ 180. However, use of the term “victim” is not necessarily “the same as
expressing an opinion that a defendant is guilty of a crime.” State v. Palmer, 7th
Dist. Mahoning No. 19 MA 0108, 2021-Ohio-4639, ¶ 83.
In this case, Washington challenges the following uses of “victim” by
the trial judge, the assistant prosecuting attorney and a witness prior to or during
the trial:
● While reading the counts of the indictment to the jury at the outset
of the voir dire process, the trial judge stated: “Counsel, I don’t have
the name of the victim. Tell me it, please, again.” Tr. 120.
● During voir dire, the assistant prosecuting attorney asked potential
jurors:
Q. Is there anybody — I think we’re going to put this question out
for everyone, who has been a victim of something like this, or had
a close friend or family member who is a victim of something like
this, rape, or sexual assault? Tr. 155.
● During the state’s opening statement, the assistant prosecuting
attorney stated: “The victim’s name in this case is [M.F.].” Tr. 292.
● A police officer, who in describing labeling on evidence bags and the
sexual assault evidence collection kit, testified:
Q. Now, does that bag have any other identifying factors on it as far
as suspect name or victim's name, Officer?
A. It has a victim name of [M.F.], a suspect name of Phillip
Washington.
***
Q. And then what other identifying factors are on that SANE kit?
A. On here it has [M.F.], her birth date. It shows who it was secured
by, released by, which is me. It has our report number,
description of evidence, a SANE kit from Hillcrest Hospital for
[M.F.], the offense, which is a sex offense, the victim, [M.F.] and
the suspect, Phillip Washington. Tr. 397-399.
In support of his contention that he was deprived of his
presumption of innocence and denied a fair trial, Washington cites State v.
Almedom, 10th Dist. Franklin No. 15 AP-852, 2016-Ohio-1553, and State v.
Vetetom, 8 S.W.3d 805 (Tex.App.2000).
In Vetetom, the defendant argued that the trial court had
improperly commented on the weight of the evidence by referring to the sexual
assault complainant as the “victim” instead of the “alleged victim” in a jury
instruction regarding sufficiency of proof that “singled out her testimony.” Id. at
816. The court observed that referring to the complainant “as the victim instead of
the alleged victim lends credence to her testimony that the assaults occurred and
that she was, indeed, a victim.” Id. The court, however, did not consider whether
the usage was prejudicial because it had already found other reversible error. Id. at
817.
In Almedom, the Tenth District vacated the defendant’s convictions
for rape and gross sexual imposition involving three girls under the age of 13.
Almedom at ¶ 1-4, 25. The court found that the defendant was denied “the
opportunity for a fair trial” in part, because his trial counsel failed to object to the
trial judge’s repeated references to the complaining witnesses as “victims,” which
the court found was “in essence, * * * telling the members of the jury that the girls
were truthful when they claimed that sexual abuse occurred, as opposed to telling
the jury Almedom was truthful in his denial, or refusing to comment on the
credibility of any potential witnesses.” Id. at ¶ 2-4, 10-12. The court found that the
defendant had been prejudiced by the inappropriate references because “[t]he trial
court judge * * * is viewed as the ultimate authority figure in the courtroom” and
that “the conduct of defense counsel linked with the prejudicial comments of the
trial judge when added to those of the assistant prosecuting attorney during jury
selection undermined the proper function of the adversarial process” was such that
the court could not “be sure a just result was produced.” Id. at ¶ 10-12.
In Almedom, most of the offending references were made by the
trial judge, not the prosecutor or witnesses. Almedom at ¶ 2-4, 10-12. In Almedom,
the trial judge had “consistently” referred to the girls as victims. Id. at ¶ 2. Further,
the Tenth District found that defense counsel had performed deficiently by not only
failing to object to the trial court’s “consistent” references to the children as
“victims,” but also by failing to ask for a mistrial or a limiting instruction after one
of the three girls was not called to testify and the charge involving her was dismissed
on the state’s motion, by failing to file any pretrial motions other than a motion for
a bill of particulars, by failing to file a motion to determine the competency of the
children who were expected to testify (one of whom was six years old at the time of
trial) and by repeatedly failing to object to questions on direct examination and to
“huge” portions of the state’s evidence, including extrajudicial interviews of the girls.
Id. at ¶ 2-8. It was the combination of these factors, i.e., “the conduct of the trial
judge * * * linked with the deficient conduct of defense counsel,” that led the court
to conclude that the defendant was denied “the opportunity of a fair trial * * * in
which his defense could be fairly considered.” Id. at ¶ 10-12. As a result, the court
vacated the defendant’s convictions and remanded the case for further proceedings.
Id. at ¶ 10-13, 25. This case is very different. See, e.g., Aboytes, 2020-Ohio-6806,
at ¶ 184-196; Palmer, 2021-Ohio-4639, at ¶ 85-90; State v. Nichols, 10th Dist.
Franklin Nos. 19AP-113 and 19AP-116, 2020-Ohio-4362, ¶ 39.
In this case, there are no comparable claims of deficient
performance by defense counsel. This is not a case in which the trial judge “singled
out” “the victim’s” testimony in its jury instructions or “consistently” referred to the
complainant as the “victim.” Washington complains of a single use of the term
“victim” by the trial judge at the beginning of voir dire. When the trial judge began
reading the indictment to potential jurors at the outset of the voir dire process, she
asked counsel for the name of “the victim” so that she could reference M.F. by name,
instead of as “Jane Doe,” when reading the indictment to the potential jurors, “in
case [the potential jurors] would know her or her family.” Moments earlier the trial
judge had instructed the jurors to “pay attention” as she read the indictment “so that
if you have any knowledge of the incident, or any of the parties mentioned in the
indictment, you may bring that to our attention.” Considering the trial court’s
usage of “victim” in context, it is clear that the trial judge was using the term “victim”
to refer to the identity of the complainant, not to express a view that crimes had
occurred or that Washington was guilty of those crimes.
Immediately after reading the charges in the indictment to the jury,
the trial judge explained that an indictment is “made solely for the Defendant’s
information and protection” and that its purpose is “to furnish the Defendant with
a written statement of the accusation or charge made against him so that he may be
able and advised of the nature of the charge and be able to prepare a defense thereto”
and that “[i]t may not be considered for any other purpose.” Tr. 124-125, 688. The
trial judge stated that Washington had pled not guilty to the charges against him and
further instructed the jury:
It therefore follows that the mere fact that an indictment was
returned against the Defendant creates no presumption of guilt, nor
does it give rise to any inference of his guilt.
On the contrary, under our law, he is clothed with the legal
presumption of innocence, and this presumption of innocence remains
with him throughout the trial until overcome by evidence which
convinces the jury beyond a reasonable doubt of his guilt.
Tr. 125-126; see also tr. 688-690.
The trial judge also specifically instructed the jury:
Any impression that you might gleam as to how you think I
would decide this case, from anything that I say or do in this case, you
must disregard it and erase it from your minds and be guided wholly
and solely from the evidence that you will hear in this courtroom.
I do not make decisions on your duties, so don’t think that I do.
Tr. 284. We must presume that the jury followed these instructions. See, e.g.,
Wilson, 2023-Ohio-1046, at ¶ 19, citing Ahmed, 103 Ohio St.3d 27, 2004-Ohio-
4190, 813 N.E.2d 637, at ¶ 147.
The other usages of the term “victim” regarding which Washington
complains are two statements made by the assistant prosecuting attorney and
references to the term “victim” on evidence labels to which Officer Moore testified.
The assistant prosecuting attorney’s isolated references to M.F. as
the “victim” — once during voir dire questioning of potential jurors and once during
the state’s opening statement — were not such that they would “lend undue
credence” to her testimony that a crime had occurred.
“While a trial judge must remain detached and neutral in any matter
before the court, a prosecutor is not constrained by any such obligation of
neutrality.” Aboytes, 2020-Ohio-6806, at ¶ 189. The jury is aware that prosecutors
are advocates and that “prosecutors and witnesses have biases.” Jackson, 2023-
Ohio-455, at ¶ 25-26 (observing that courts have held that “a prosecutor’s or a
witness’s use of the term ‘victim’ to refer to a complaining witness does not rise to
the level of plain error”), citing State v. Butts, 8th Dist. Cuyahoga No. 108381, 2020-
Ohio-1498, ¶ 41, and State v. Madden, 2017-Ohio-8894, 100 N.E.3d 1203, ¶ 26-34
(10th Dist.).
As it relates to law enforcement officers recounting their role in an
investigation, the term “victim” has often found to be ‘“a term of art synonymous
with “complaining witness.’”” Madden at ¶ 32, quoting Jackson v. State, 600 A.2d
21, 24-25 (Del.1991). With respect to the evidence labels referenced during Moore’s
testimony, it is clear from the context that the term “victim” was used on the labels
to refer to the identity of the complainant, not to express a view that a particular
crime had occurred or, if so, that Washington was guilty of that crime. Moore
testified that, in addition to a marking identifying M.F. as the victim, the labels
included a report number, markings to identify the persons who had handled the
evidence and a description of the evidence and offense. He indicated that
Washington was identified on the evidence labels as a “suspect.”
The trial judge repeatedly instructed the jury that Washington was
presumed innocent, that it was the state’s obligation “to prove every material
element that constitutes the crime or offense with which a defendant is charged by
evidence which convinces the jury beyond a reasonable doubt” and that it was the
jury’s role — and no one else’s role — to “decide the facts” and determine the guilt or
innocence of the defendant “after carefully consider[ing] and compar[ing] all the
evidence.” Tr. 125-126, 129-130, 284, 689-691, 694. The trial judge also specifically
instructed the jurors that opening statements “are not evidence,” that “the attorneys
are not witnesses” and that “since it is your duty to decide this case solely on
evidence that you hear or see in the courtroom, you must not consider as evidence
any statement of any attorney made throughout these proceedings.” Tr. 284, 291,
648, 695. Once again, we presume that the jury followed these instructions.
Following a thorough review of the record, we find no indication
that the adversarial process was undermined or that Washington was otherwise
prejudiced as a result of the limited usages of the term “victim” below. See Aboytes,
2020-Ohio-6806, at ¶ 184-196; Palmer, 2021-Ohio-4639, at ¶ 85-90; Butts, 2020-
Ohio-1498, at ¶ 41.
As detailed above, substantial, competent, credible evidence
supported Washington’s convictions. Washington cannot demonstrate that the
outcome at trial would have been different but for these limited usages of the term
“victim.” Washington’s second assignment of error is overruled.
Ineffective Assistance of Counsel
In his fifth assignment of error, Washington contends that he was
denied the effective assistance of counsel based on his trial counsel’s (1) failure to
object to or request an addition to the trial court’s jury instructions regarding the
use of force (“as set forth in Assignment of Error IV”) and (2) failure to object to the
trial judge’s, the assistant prosecuting attorney’s and Officer Moore’s references to
M.F. as “the victim” (“as set forth in Assignment of Error II”).
A criminal defendant has the right to effective assistance of counsel.
Strickland v. Washington, 466 U.S. 668, 685-686, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984). As a general matter, to establish ineffective assistance of counsel, a
defendant must demonstrate: (1) deficient performance by counsel, i.e., that
counsel’s performance fell below an objective standard of reasonable
representation, and (2) that counsel’s errors prejudiced the defendant, i.e., a
reasonable probability that but for counsel’s errors, the outcome of the proceeding
would have been different. Id. at 687-688, 694; State v. Bradley, 42 Ohio St.3d 136,
538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. “Reasonable
probability” is “probability sufficient to undermine confidence in the outcome.”
Strickland at 694.
In Ohio, a properly licensed attorney is presumed to be competent.
Black, 2019-Ohio-4977, 149 N.E.3d 1132, at ¶ 35, citing State v. Smith, 17 Ohio St.3d
98, 100, 477 N.E.2d 1128 (1985). Because there are “countless ways to provide
effective assistance in any given case,” on a claim of ineffective assistance of counsel,
the court must give great deference to counsel’s performance and “indulge a strong
presumption” that counsel’s performance “falls within the wide range of reasonable
professional assistance.” Strickland at 689; see also State v. Powell, 2019-Ohio-
4345, 134 N.E.3d 1270, ¶ 69 (8th Dist.) (‘“A reviewing court will strongly presume
that counsel rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment.’”), quoting State v. Pawlak, 8th Dist.
Cuyahoga No. 99555, 2014-Ohio-2175, ¶ 69.
As stated above, we have found no error in the trial court’s jury
instructions regarding force. Accordingly, defense counsel’s failure to object to
those instructions or to offer additional “force” instructions is of no effect. Trial
counsel cannot be deemed deficient or ineffective for failing to perform a futile act.
See, e.g., State v. May, 2015-Ohio-4275, 49 N.E.3d 736, ¶ 35 (8th Dist.), citing State
v. Witherspoon, 8th Dist. Cuyahoga No. 94475, 2011-Ohio-704, ¶ 33 (“[T]he failure
to do a futile act cannot be the basis for claims of ineffective assistance of counsel
and is not prejudicial.”).
Whether to object to evidence presented or to statements made in
the presence of the jury is often regarded as a strategic or tactical decision. See, e.g.,
State v. Frierson, 2018-Ohio-391, 105 N.E.3d 583, ¶ 25 (8th Dist.). Strategic or
tactical decisions ordinarily do not constitute ineffective assistance of counsel. See,
e.g., State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 101,
111; Black at ¶ 35. As such, the failure to make an objection is generally not, in and
of itself, sufficient to sustain a claim of ineffective assistance of counsel. Conway at
¶ 103; Frierson at ¶ 25; Black at ¶ 35; see also State v. C.D.S., 10th Dist. Franklin
No. 20AP-355, 2021-Ohio-4492, ¶ 109 (observing that “[i]t is * * * conceivable that
defense counsel did not want to bring further attention to the issue as part of the
trial strategy by insinuating appellant did not trust the jury’s ability to identify the
word ‘victim’ as a reference to a complaining witness”).
Even if defense counsel were deficient for failing to object to the
usages of “victim” below, Washington has not shown that he was prejudiced by such
failures, i.e., that there is a reasonable probability that, but for, his trial counsel’s
failure to make those objections, the result of the proceeding would have been
different.
Accordingly, we overrule Washington’s fifth assignment of error.
Cruel and Unusual Punishment
In his sixth and final assignment of error, Washington challenges
the constitutionality of his life sentence without the possibility of parole. Although
Washington did not challenge the constitutionality of his sentence below, he now
contends that “[a] sentence with no meaningful parole eligibility date” is “cruel and
unusual,” is “incompatible with human dignity,” offends “society’s standards of
decency” and, therefore, violates Article I, Sections 9, 10 and 16 of the Ohio
Constitution and the Eighth and Fourteenth Amendments to the United States
Constitution.
The Eighth Amendment to the United States Constitution, which
applies to the states through the Fourteenth Amendment, provides: “Excessive bail
shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.” Article I, Section 9 of the Ohio Constitution similarly
provides: “Excessive bail shall not be required; nor excessive fines imposed; nor
cruel and unusual punishments inflicted.” While Article I, Section 9 of the Ohio
Constitution is similar to the Eighth Amendment to the United States Constitution,
“it also provides independent protection.” State v. Morris, Slip Opinion No. 2022-
Ohio-4609, ¶ 7, citing State v. Blankenship, 145 Ohio St.3d 221, 2015-Ohio-4624,
48 N.E.3d 516, ¶ 31.
Washington does not identify the provisions of Article I, Section 10
or Section 16 of the Ohio Constitution that he contends his sentence violates.
Although Washington asserts that the Ohio Constitution “offers more protection
than the federal constitution,” he does not develop this argument, i.e., he does not
support his argument with citations to legal authority and does not explain how, why
or on what basis the imposition of a life sentence without the possibility of parole for
the rape of a young child would violate the Ohio Constitution where it would not
violate the United States Constitution. Accordingly, we need not address those
contentions here. App.R. 12(A)(2); App.R. 16(A)(7).
“A key component of the Constitution’s prohibition against cruel
and unusual punishment is the ‘precept of justice that punishment for crime should
be graduated and proportioned to [the] offense.”’ State v. Moore, 149 Ohio St.3d
557, 2016-Ohio-8288, 76 N.E.3d 1127, ¶ 31, quoting Weems v. United States, 217
U.S. 349, 367, 30 S.Ct. 544, 54 L.Ed. 793 (1910). To constitute cruel and unusual
punishment, ‘“the penalty must be so greatly disproportionate to the offense as to
shock the sense of justice of the community.”’ State v. Anderson, 151 Ohio St.3d 212,
2017-Ohio-5656, 87 N.E.3d 1203, ¶ 27, quoting McDougle v. Maxwell, 1 Ohio St.2d
68, 70, 203 N.E.2d 334 (1964). Generally, if a sentence falls within the terms of a
valid statute, it cannot constitute cruel and unusual punishment. See State v.
Johnson, 8th Dist. Cuyahoga No. 80436, 2002-Ohio-7057, ¶ 119, citing McDougle
v. Maxwell, 1 Ohio St.2d 68, 69, 203 N.E.2d 334 (1964), and State v. Juliano, 24
Ohio St.2d 117, 120, 265 N.E.2d 290 (1970).
Washington cites no state or federal case law holding that a sentence
of life without the possibility of parole imposed on an adult following his or her
conviction for rape of a young child constitutes cruel and unusual punishment in
violation of the Eighth Amendment. Rather, his argument focuses on general
notions of “respect” for “the dignity of all persons,” a few law review articles and a
2022 decision from the Supreme Court of Canada, R. v. Bissonnette, 2022 SCC 23.
In Bissonnette, the Supreme Court of Canada held that a provision
of Canada’s Criminal Code that authorized the imposition of consecutive periods of
parole ineligibility in cases involving multiple murders was unconstitutional under
section 12 of the Canadian Charter of Rights and Freedoms (the “Charter”), which
guarantees the right not to be subjected to cruel and unusual treatment or
punishment. Id. at ¶ 4-5. Under Canadian law, an adult convicted of first-degree
murder receives an automatic life sentence with no possibility of parole for 25 years.
Section 745.51 authorized the trial court, in cases involving multiple murders, to
impose consecutive periods of parole ineligibility for each murder in 25-year
increments. Id. at ¶ 3, 7. In Bissonnette, the offender, who had murdered six people
(and had seriously injured several others) in an attack on a mosque, pled guilty to
multiple charges including six counts of first-degree murder. Id. at ¶ 10-12. The
crown had asked the trial court to apply section 745.51 and impose a life sentence
with no possibility of parole for 150 years. Id. at ¶ 12.
The Supreme Court of Canada stated that the purpose of section 12
“is to protect human dignity and ensure respect for the inherent worth of each
individual.” Id. at ¶ 5. The court explained: “To ensure respect for the inherent
dignity of every individual, [section] 12 of the Charter requires that Parliament leave
a door open for rehabilitation, even in cases where this objective is of secondary
importance. In practical terms, this means that every inmate must have a realistic
possibility of applying for parole.” Id. at ¶ 9; see also id. at ¶ 85. Because section
745.51 “authorize[d] the imposition of sentences of imprisonment without a realistic
possibility of parole before death” and in effect “depriv[ed] offenders in advance” of
any possibility of reformation and reintegration into society, the court found that
the provision imposed a “degrading punishment” that was “incompatible with
human dignity” and “cruel and unusual by nature” and was, therefore,
unconstitutional under section 12 of the Charter. Id. at ¶ 84-85, 87, 139-140.8
That decision is not applicable here.
Rape of a young child is a serious offense that should result in a
serious punishment. Ohio appellate courts have held that a sentence of life without
parole for the rape of a child under the age of ten does not violate the Eighth
Amendment’s prohibition against cruel and unusual punishment. See, e.g., State v.
Kidd, 1st Dist. Hamilton No. C-200356, 2021 Ohio App. LEXIS 3803, 24-25
(Oct. 29, 2021); State v. Glaze, 6th Dist. Lucas No. L-17-1269, 2019-Ohio-53, ¶ 23-
26, 30 (sentence of life without parole for the rape of a child under the age of ten
“was not disproportionate to the conduct involved, did not violate his substantive
due process rights, and did not constitute cruel and unusual punishment”); State v.
Driscoll, 2d Dist. Clark No. 2008 CA 93, 2009-Ohio-6134, ¶ 29 (“[Defendant’s]
sentence of life without parole for raping [a] four year old * * * in violation of R.C.
8 In reaching this conclusion, the court considered, among other things, the history
of section 745.51, “how the treatment of people convicted of murder in Canada has
changed over time,” the operation of the parole system in Canada, the sentencing
objectives in Canadian criminal law, “international and comparative law perspectives”
and the “fundamental values of Canadian society” “enshrined” in the Charter. Bissonnette
at ¶ 2, 27-108.
The court noted that “[i]n the United States, * * * imprisonment for life without
the possibility of parole is considered constitutional * * * except in the case of juvenile
offenders * * *, including those convicted of murder * * *. However, the American
approach differs from the one that exists under Canadian law, since that country applies
the death penalty and has a narrower interpretation of the concept of cruel and unusual
punishment. (Kindler [v. Canada (Minister of Justice), [1991] 2 S.C.R. 779, 812]).” Id.
at ¶ 107.
2907.02(A)(1)(b), does not constitute cruel and unusual punishment, because it is
‘not disproportionate or shocking to the moral sense of the community, in view of
the heinous nature of the crime.’”), quoting State v. McConnell, 2d Dist.
Montgomery No. 19993, 2004-Ohio-4263, ¶ 142.
Here, Washington was found guilty of multiple counts of rape of M.F.
when she was less than ten years old. A sentence of life without parole is within the
statutory range for rape of a child under the age of ten in Ohio. Washington has not
shown that such a sentence is disproportionate to the conduct involved, is shocking
to the moral sense of the community or otherwise constitutes cruel and unusual
punishment under the United States or Ohio Constitutions.
Washington’s sixth assignment of error is overruled.
Judgment affirmed. Case remanded for the trial court to issue a
nunc pro tunc, modifying its April 27, 2022 sentencing journal entry to reflect that
the jury returned a verdict of guilty of gross sexual imposition in violation of R.C.
2907.05(A)(4) on Count 2.
It is ordered that appellee recover from appellant the 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
Cuyahoga County Court of Common Pleas 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.
EILEEN A. GALLAGHER, JUDGE
ANITA LASTER MAYS, A.J., and
EILEEN T. GALLAGHER, J., CONCUR