State v. Szorady , 2011 Ohio 1800 ( 2011 )

[Cite as State v. Szorady, 2011-Ohio-1800.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95045
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JOHN F. SZORADY
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-526119
BEFORE: Keough, J., Blackmon, P.J., and Jones, J.
RELEASED AND JOURNALIZED: April 14, 2011
ATTORNEY FOR APPELLANT
Craig M. Jaquith
Office of Ohio Public Defender
Assistant State Public Defender
250 East Broad St., Ste. 1400
Columbus, OH 43215
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
Gregory Mussman
Jesse W. Canonico
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
KATHLEEN ANN KEOUGH, J.:
{¶ 1} Defendant-appellant, John F. Szorady, appeals from the trial
court’s judgment finding him guilty of rape, sexual battery, pandering
sexually-oriented matter involving a minor, intimidation, and possession of a
criminal tool, and sentencing him to 74 years incarceration. For the reasons
that follow, we affirm.
I. Procedural History
{¶ 2} In March 2009, a Cuyahoga County grand jury indicted Szorady
in a 108-count indictment in Case No. CR-522235.
{¶ 3} In July 2009, a new indictment was issued in Case No.
CR-526119 concerning the same conduct. The new indictment included 62
counts: 29 counts of rape, 29 counts of sexual battery, one count of
pandering sexually-oriented material involving a minor, one count of
intimidating a witness, one count of possession of criminal tools, and one
count of corrupting another with drugs. The rape and sexual battery counts
carried repeat violent offender and sexually violent predator specifications.
The State subsequently dismissed the first indictment and proceeded on the
second indictment.
{¶ 4} Szorady’s court-appointed counsel withdrew in May 2009 and the
court appointed new counsel for Szorady; one month later, counsel asked to
withdraw due to conflicts with Szorady. The trial court again appointed new
counsel for Szorady; after two months that lawyer moved to withdraw
because Szorady had written letters that contained allegations impugning the
lawyer’s integrity. The court granted counsel’s motion to withdraw and
appointed another lawyer for Szorady. Shortly before trial, Szorady wrote to
the judge asking to waive his right to counsel. After a hearing, Szorady
withdrew his request and the matter proceeded to a jury trial.
{¶ 5} The trial court dismissed several counts at trial pursuant to
Crim.R. 29. The jury found Szorady guilty of the remaining counts, but the
trial court declared a mistrial prior to sentencing upon learning that the jury
had mistakenly considered an improper exhibit during deliberations.
{¶ 6} After trial, counsel for Szorady moved to withdraw because
Szorady had filed a grievance against him. In addition, Szorady filed a
motion to waive his right to counsel and represent himself at the rescheduled
trial. In his motion, Szorady acknowledged that the court had appointed
four lawyers for him, but asserted that all four lawyers were, for various
reasons, deficient and that “the only way a valid and meaningful defense will
be prepared and presented in his behalf is if he does it himself.”
{¶ 7} After a hearing, the trial court granted Szorady’s motion.
Subsequently, upon being advised that the Ohio Supreme Court had denied
Szorady’s affidavit of disqualification against the judge, the trial court again
set the matter for trial. Szorady waived his right to a jury trial and the case
was heard by the judge. Szorady represented himself during trial, with the
lawyer who represented him at the first trial serving as advisory counsel.
{¶ 8} At the close of the State’s evidence, the trial judge dismissed four
counts of rape (counts 1, 2, 25, and 26), four counts of sexual battery (counts
30, 31, 52, and 53), one count of corrupting another with drugs (count 62), and
all of the sexually violent predator specifications. The court subsequently
found Szorady not guilty of counts 3, 8, 9, 12, 13, and 16 (rape), and counts
32, 33, 36, 37, 46, and 47 (sexual battery), and guilty of the remaining counts
of rape, sexual battery, pandering, intimidation, and possession of a criminal
tool, as well as the repeat violent offender specifications attached to the rape
and sexual battery convictions. The trial court merged the sexual battery
counts with the corresponding rape counts and sentenced Szorady to a total of
74 years incarceration; it also declared him to be a Tier III sex offender. This
appeal followed.
II. The Victim’s Trial Testimony
{¶ 9} E.S.,1 the victim, testified that during the relevant time period
she lived with her mother, grandmother, and brother in Cleveland. E.S.’s
mother had a romantic relationship with Szorady and in 2004, after he was
released from prison, Szorady moved in with her. E.S. was then 13 years
old. E.S. testified that from the time he moved in, Szorady was responsible
for “all of the parenting duties” regarding E.S. and her brother, including
disciplining them, setting house rules, and determining privileges. E.S.’s
mother worked the night shift Sundays through Thursdays at a local factory
and was gone between 10:00 p.m. and 8:00 a.m. those days.
1
We refer to the victim by her initials in accord with this court’s policy of protecting the
identities of child victims of crime.
{¶ 10} E.S. testified that she was afraid of Szorady because when he
became angry, he was “violent, belligerent, [and] intimidating.” He would
slap her and her brother, and once grabbed her by her throat. Another time
he dragged E.S. out of school by her hair. E.S. testified that Szorady called
her names like “bitch, slut, whore, things like that.” Szorady also physically
abused E.S.’s mother, including slapping her, hitting her with a cabinet door,
and biting her nose. E.S. testified that Szorady and her mother used drugs at
home, including heroin, crack cocaine, ecstasy, and marijuana.
{¶ 11} According to E.S., Szorady first raped her on a camping trip in
August 2004, when she was 13 years old. Szorady gave her alcohol until she
was drunk and passed out in his van. In the morning, she noticed blood in
her underwear and Szorady told her that she did “crazy things” when she was
drunk.
{¶ 12} Later that summer, Szorady forced E.S. to ingest heroin until she
was incapacitated, and then penetrated her vagina with his finger. He then
forced her to perform oral sex on him, and then had intercourse with her.
{¶ 13} E.S. testified that Szorady raped her “almost every day” from
August 2004 to January 2009, when she finally told her then-boyfriend what
had been happening. She said that Szorady would typically rape her while
her mother was at work. Around his birthday in November, Szorady would
expect “special nights” of sexual activity from E.S. as a gift to him.
{¶ 14} E.S. testified that her mother typically took a week off work
around Christmas, thereby limiting Szorady’s access to E.S. Szorady would
tell E.S. that he expected special sexual favors from her before her mother’s
vacation and would rape her for longer periods of time and in a rougher
fashion on those nights. In addition, Szorady demanded that E.S. wear
special outfits on those occasions and would rape her anally. E.S. testified
she was afraid that if she refused his advances, Szorady would become violent
with her, her brother, or her grandmother. She testified further that she
became pregnant by Szorady in March 2008, and had an abortion.
{¶ 15} Szorady moved to his own apartment in January 2009. Szorady
and E.S.’s mother twice arranged for E.S. to stay at Szorady’s home so he
could bring her to school in the morning. E.S. testified that on both
occasions, Szorady forced her to perform oral sex on him and engage in
intercourse. On one of the occasions, he showed her a video file on his
computer that depicted him and E.S. having sex.
{¶ 16} After Szorady moved out, E.S. tried to distance herself from him
in order to avoid his advances. But Szorady would call her, text her, and
leave voice mail messages expressing his displeasure that she was avoiding
him. He threatened to give photographs of him and E.S. having sex to her
school, her grandmother, and her boyfriend.
{¶ 17} One evening in February 2009, Szorady became unhappy after
learning that E.S. was at her boyfriend’s house and began texting and calling
her incessantly. When E.S.’s boyfriend told her that Szorady was acting
more like a jealous boyfriend than a stepfather, E.S. broke down and told him
that Szorady had been raping her for years. The boyfriend contacted a
school counselor, who called the police.
{¶ 18} The police subsequently searched Szorady’s home, where they
found computer files that showed Szorady raping E.S. In addition, they
found numerous text messages to E.S. on Szorady’s cell phone. In one, he
told her what type of sex he expected that night; in another, he thanked her
for the sex; and in others, he threatened to release the videos to various
persons if she refused to have sex with him.
III. Waiver of Counsel
{¶ 19} In his first assignment of error, Szorady argues that the trial
court committed reversible error because it accepted his waiver of counsel
without ascertaining that it was knowingly, intelliently, and voluntarily
made.
{¶ 20} “The Sixth Amendment, as made applicable to the states by the
Fourteenth Amendment, guarantees that a defendant in a state criminal trial
has an independent constitutional right of self-representation and that he
may proceed to defend himself without counsel when he voluntarily, and
knowingly and intelligently elects to do so.” State v. Gibson (1976), 45 Ohio
St.2d 366, 345 N.E.2d 399, paragraph one of the syllabus, citing Faretta v.
California 91975), 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562.
{¶ 21} However, “courts are to indulge in every reasonable presumption
against the waiver of a fundamental constitutional right, including the right
to be represented by counsel.” State v. Dyer (1996), 117 Ohio App. 3d 92, 95,
689 N.E.2d 1034. “In order to establish an effective waiver of right to
counsel, the trial court must make sufficient inquiry to determine whether
defendant fully understands and intelligently relinquishes that right.”
Gibson, paragraph two of the syllabus. “‘To be valid, such waiver must be
made with an apprehension of the charges, the statutory offenses included
within them, the range of allowable punishments thereunder, possible
defenses to the charges and circumstances in mitigation thereof, and all other
facts essential to a broad understanding of the matter.’” Gibson at 406,
quoting Von Moltke v. Gillies (1948), 332 U.S. 708, 723, 68 S. Ct. 316, 92
L.Ed 309.
{¶ 22} The record demonstrates that the trial judge reviewed the
charges and all possible penalities with Szorady. The trial court also
informed Szorady that his former lawyer would act as advisory counsel for
him during trial and discussed the limitations of advisory counsel’s role. The
trial court also advised Szorady of how the trial would be handled and his
appeal rights. Szorady stated that he understood the charges and possible
penalties, the role of advisory counsel, and that he would be bound to the
rules of evidence, but still wished to represent himself. In light of the
foregoing, we find that Szorady knowingly, voluntarily, and intelligently
waived his right to counsel.
{¶ 23} Szorady asserts that the trial court’s colloquy was deficient
because the judge made no effort to determine that his waiver was truly
voluntary, rather than forced by legitimate concerns regarding his appointed
counsel. But the record is clear that Szorady did not, in fact, have
legitimate concerns about his appointed counsel. He found fault with all four
lawyers the court had appointed for him, forcing three of his lawyers to ask to
withdraw, and, as evidenced by his affidavit of prejudice, was also unhappy
with the trial judge. The trial judge was well aware that Szorady’s concerns
about defense counsel were not valid and, hence, there was no reason to
inquire about the legitimacy of Szorady’s concerns. Appellant’s first
assignment of error is therefore overruled.
III. The Rape Shield Statute
{¶ 24} During trial, E.S. testified that she became pregnant in March
2009 by Szorady and subsequently had an abortion. The trial court barred
Szorady from questioning E.S. regarding whether she had sex with other
individuals in the time frame that would have been consistent with the
aborted pregancy. In his second assignment of error, Szorady contends that
the trial court’s ruling was in error and that he should have been allowed to
cross-examine E.S. regarding her sexual activity with persons other than
him.
{¶ 25} R.C. 2907.02(D), commonly known as the rape shield statute,
provides that evidence of the victim’s prior sexual activity with a person other
than the defendant is inadmissible “unless it involves evidence of the origin of
semen, pregnancy, or disease, * * * and only to the extent that the court finds
that the evidence is material to a fact at issue in the case and that its
inflammatory or prejudicial nature does not outweigh its probative value.”
{¶ 26} In determining whether prior acts should be admitted, the court
must balance the interests of the victim, which the statue is designed to
protect, and the defendant’s right to confront and cross-examine the State’s
witnesses. State v. Williams (1986), 21 Ohio St. 3d 33, 35, 487 N.E.2d 560.
If the evidence in question is merely being used to impeach the victim’s
credibility, it is not of probative value as to the alleged rape itself and should
not be admitted. Id.
{¶ 27} Here, it is apparent that Szorady wanted to question E.S. about
other sexual partners merely in an attempt to impeach her credibility: he
argues that if she were untruthful that he was the father of the baby, her
other testimony about him was also likely not true.
{¶ 28} Evidence of sexual activity offered merely to impeach the
credibility of the witness is not material to a fact at issue in the case and
must be excluded. State v. Ferguson (1983), 5 Ohio St. 3d 160, 164, 450
N.E.2d 265; State v. Gardner (1979), 59 Ohio St. 2d 14, 18-19, 391 N.E.2d 337.
Accordingly, the trial court did not err in excluding evidence of E.S.’s prior
sexual history.
{¶ 29} Appellant’s second assignment of error is overruled.
V. Rape Convictions
{¶ 30} In his third assignment of error, Szorady contends that the
evidence was insufficient to support his convictions for rape.
{¶ 31} The test for sufficiency requires a determination of whether the
prosecution met its burden of production at trial. State v. Bowden, Cuyahoga
App. No. 92266, 2009-Ohio-3598, ¶12. Courts are to assess not whether the
State’s evidence is to be believed, but whether, if believed, the evidence
against a defendant would support a conviction. State v. Thompkins, 78
Ohio St. 3d 380, 386, 678 N.E.2d 541, 1997-Ohio-52. The relevant inquiry is
whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements
of the crime proven beyond a reasonable doubt. State v. Jenks (1991), 61
Ohio St. 3d 259, 574 N.E.2d 942, paragraph two of the syllabus.
{¶ 32} Szorady was convicted of rape in violation of R.C. 2907.02(A)(2),
which provides that “[n]o person shall engage in sexual conduct with another
when the offender purposely compels the other person to submit by force or
threat of force.” He contends that the evidence was insufficient to support
his rape convictions because the State failed to prove the element of force.
{¶ 33} Force means “any violence, compulsion, or constraint physically
exerted by any means upon or against a person or thing.” R.C.
2901.01(A)(1). Force or the threat of force “can be inferred from the
circumstances surrounding sexual conduct.” State v. Schaim (1992), 65 Ohio
St.3d 51, 600 N.E.2d 661, paragraph one of the syllabus. To make a finding
of force under R.C. 2907.02, “some amount of force must be proven beyond
that force inherent in the crime itself.” State v. Dye (1998), 82 Ohio St. 3d
323, 327, 695 N.E.2d 763.
{¶ 34} In the case of a child victim, a person in a position of authority
over the victim can be convicted of rape with the force specification without
evidence of express threat of harm or evidence of significant physical
restraint. Id. at syllabus. Thus, this court has recognized that “‘if the
alleged victim is a minor child, evidence of subtle and/or psychological force
may be sufficient to support conviction of an accused who is an authority
figure to that child, even in the absence of any express threat of harm or
significant physical restraint.’” State v. Milam, Cuyahoga App. No. 86268,
2006-Ohio-4742, ¶12, quoting State v. Musgrave, (Nov. 25, 1998), Summit
App. No. 18260. “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 and duress, the forcible element of rape can be
established.” State v. Fowler (1985), 27 Ohio App. 3d 149, 154, 500 N.E.2d
390.
{¶ 35} Szorady was a person in authority over E.S.; she testified that she
considered him to be her stepdad and called him “Dad.” Hence, because E.S.
was a minor when the events occurred, the question is whether Szorady
overcame her will by fear or duress. Szorady argues that E.S. testified that
she did not try to resist his advances because she did not want to be judged
negatively by her family. He contends that a person who was engaged in
consensual sex would have testified similarly and, hence, there was
insufficient evidence of force to support the rape convictions.
{¶ 36} But E.S. specifically testified that she was afraid that Szorady
would get violent if she refused his advances. She also testified that Szorady
had physically assaulted her, her brother, and her mother when he got angry
at them. This testimony was sufficient to establish the force element of rape
and, therefore, Szorady’s argument is without merit.
{¶ 37} Szorady next argues that even if his rape convictions were
supported by sufficient evidence, they were against the manifest weight of the
evidence. He contends that the trial court’s finding of force was unreasonable
in light of the “conflicting” and “ambiguous” evidence regarding whether E.S.
failed to resist his advances because she wanted to avoid embarrassment if
her actions with him were revealed, or whether her will was overcome by fear
or duress.
{¶ 38} A challenge to the manifest weight of the evidence attacks the
credibility of the evidence presented. Thompkins at 387. In determining
whether a conviction is against the manifest weight of the evidence, a
reviewing court reviews “the entire record, weighs the evidence and all
reasonable inferences, considers the credibility of witnesses and determines
whether in resolving conflicts in the evidence, the jury clearly lost its way and
created such a manifest mniscarriage of justice that the conviction must be
reversed and a new trial ordered.” Id., citing State v. Martin (1983), 20 Ohio
App.3d 172, 175, 485 N.E.2d 717. Reversing a conviction as being against
the manifest weight of the evidence and ordering a new trial is reserved for
only those “exceptional cases in which the evidence weighs heavily against
the conviction.” Id.
{¶ 39} This is not that exceptional case. The evidence was neither
conflicting nor ambiguous; it was clear that E.S. was afraid of Szorady and
feared that he would become violent if she refused his advances. Although
she admitted that she did not want to be embarrassed by a revelation of what
had happened, she also testified that she submitted to Szorady’s advances
because she was fearful of what he would do to her, her brother, and
grandmother if she resisted him. E.S.’s brother and mother likewise testified
that Szorady would become violent when he was angry. Our review of the
record demonstrates that E.S.’s will to resist was overcome by her fear of
Szorady; hence, the rape convictions are not against the manifest weight of
the evidence.
{¶ 40} Appellant’s third assignment of error is therefore overruled.
V. Consecutive Sentences and Findings of Fact
{¶ 41} In his fourth assignment of error, Szorady contends that the trial
court erred in imposing consecutive sentences without making the findings
required by R.C. 2929.14(E)(4). He argues that State v. Foster, 109 Ohio
St.3d 1, 845 N.E.2d 470, 2006-Ohio-856, which severed the judicial
fact-finding requirement from Ohio’s sentencing statutes, is no longer valid in
light of Oregon v. Ice (2009), 555 U.S. 160, 129 S. Ct. 711, 172 L. Ed. 2d 517.
{¶ 42} The Ohio Supreme court rejected this argument in State v.
Hodge, 128 Ohio St. 3d 1, 941 N.E.2d 768, 2010-Ohio-6320, wherein it
determined that Ice does not revive the severed sentencing statutes and that
“[t]rial court judges are not obligated to engage in judicial fact-finding prior to
imposing consecutive sentences unless the General Assembly enacts new
legislation requiring that findings be made.” There is no current statutory
requirement that trial judges make findings in support of consecutive
sentences; hence, Szorady has shown no error.
{¶ 43} Appellant’s fourth assignment of error is overruled.
Affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated.
Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
PATRICIA A. BLACKMON, P.J., and
LARRY A. JONES, J., CONCUR