State v. Solomon , 2021 Ohio 940 ( 2021 )

[Cite as State v. Solomon, 2021-Ohio-940.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109535
v. :
DEMITRUS SOLOMON, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 25, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-631697-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Ronni Ducoff and Chadwick Cleveland,
Assistant Prosecuting Attorneys, for appellee.
Allison S. Breneman, for appellant.
FRANK D. CELEBREZZE, JR., J.:
Defendant-appellant Demitrus Solomon brings this appeal challenging
his convictions and the trial court’s sentence for rape and gross sexual imposition.
Appellant argues that his convictions were not supported by sufficient evidence and
are against the manifest weight of the evidence, the trial court erred in denying
defense counsel’s motion for a mistrial, and that the trial court abused its discretion
in imposing a sentence that is contrary to law. After a thorough review of the record
and law, this court affirms.
I. Factual and Procedural History
The instant matter arose from several sexual-related incidents that
occurred between the victim, D.S. (hereinafter “victim”), and appellant. The victim
is appellant’s daughter.
The incidents occurred between November 2017 and May 2018. During
the first incident, appellant asked the victim to help her apply lotion to her feet.
Appellant grabbed the victim’s foot and put one of her toes into his mouth. This
incident occurred in the dining room of a house on Scovill Avenue in Cleveland,
Ohio.
According to the victim, subsequent incidents occurred when she and
her younger brother, D.S.J., were visiting appellant at a motel. During these
subsequent incidents, the victim alleged that appellant (1) touched and sucked the
victim’s breast, (2) forced his penis into the victim’s mouth, (3) forced his penis into
the victim’s vagina, and (4) forced his penis into the victim’s anus. These incidents
will be addressed in further detail below.
Appellant’s girlfriend at the time of the toe incident, Marshay
Shackelford (“Marshay”), walked into the dining room of her home and saw the
victim’s toe in appellant’s mouth. Marshay eventually discussed her observation
with the victim’s mother, Latisha Griffith (“Latisha”), and Latisha’s boyfriend,
Antonio Poole. Latisha spoke with the victim and asked if anything was going on
with appellant. The victim initially denied that anything had occurred with
appellant, but later opened up to her mother and confirmed that appellant touched
her and had sex with her.
Latisha took the victim to University Hospitals, Rainbow Babies and
Children’s Hospital, on May 27, 2018. Latisha and the victim also spoke with
Detective Richard Jackson, with the Cleveland Police Department’s Sex Crimes
Unit, and Cierra Lewis, a social worker with Cuyahoga County’s Department of
Children and Family Services’ Sexual Abuse Unit.
On September 25, 2018, appellant was charged in a six-count
indictment with (1) rape, in violation of R.C. 2907.02(A)(1)(b) (anal penetration);
(2) rape, in violation of R.C. 2907.02(A)(1)(b) (vaginal penetration); (3) rape, in
violation of R.C. 2907.02(A)(1)(b) (fellatio); (4) kidnapping, in violation of R.C.
2905.01(A)(4), with a furthermore clause alleging that the victim was under the age
of 18 and a sexual motivation specification; (5) gross sexual imposition, in violation
of R.C. 2907.05(A)(4) (sucking breasts); and (6) gross sexual imposition, in
violation of R.C. 2907.05(A)(4) (sucking toes).
Counts 1, 2, and 3 contained a furthermore clause alleging that
appellant purposely compelled the victim who was less than 13 years old to submit
by force or threat of force. Counts 1, 2, 3, and 4 contained notice of prior conviction
and repeat violent offender specifications. Counts 1-5 were committed between
January 1, 2018, and May 11, 2018. Count 6 was committed on or about November 1,
2017, to November 30, 2017. Appellant pled not guilty to the indictment during his
March 5, 2019 arraignment.
A jury trial commenced on February 4, 2020. The following witnesses
testified on behalf of the state at trial: (1) Latisha, (2) the victim, (3) the victim’s
younger brother D.S.J., (4) Doctor Regina Yaskey, (5) Marshay (6) social worker
Cierra Lewis (7) appellant’s grandmother Beverly Holder, (8) Antonio Poole, and (9)
Detective Richard Jackson. The testimony of the state’s witnesses will be set forth
in further detail below in the analysis of appellant’s assignments of error.
At the close of the state’s case in chief, defense counsel moved for a
Crim.R. 29 judgment of acquittal on all charges. Specifically, regarding the gross
sexual imposition offense charged in Count 6, defense counsel argued that “toes” are
not included in the list of erogenous zones under R.C. 2907.01(B), defining sexual
contact. Defense counsel further argued that the state did not present any evidence
that the purported sucking of the toes was done for sexual gratification.
The state opposed defense counsel’s Crim.R. 29 motion, arguing that
the list of erogenous zones set forth in R.C. 2907.01(B) is nonexhaustive, and that it
was up to the jury to determine whether the victim’s toes constituted an erogenous
zone that appellant touched for the purpose of sexual arousal or gratification. The
trial court denied defense counsel’s Crim.R. 29 motion.
The defense did not call any witnesses at trial. After the parties
discussed the jury instructions, defense counsel renewed the Crim.R. 29 motion.
The trial court denied the renewed motion.
Trial concluded on February 10, 2020. On February 14, 2020, the jury
returned its verdict. The jury found appellant guilty of rape on Counts 2 and 3, but
not guilty on the furthermore clauses alleging that appellant compelled the victim to
submit by force or threat of force. The jury found appellant guilty of gross sexual
imposition on Count 6. The jury found appellant not guilty of rape on Count 1,
kidnapping on Count 4, and gross sexual imposition on Count 5.
The trial court proceeded immediately to sentencing. The trial court
sentenced appellant to a prison term of 23 years to life: indefinite prison terms with
a minimum term of ten years and a maximum term of life imprisonment on Counts
2 and 3, and three years on Count 6. The trial court ordered the counts to run
consecutively to one another. The trial court ordered appellant to pay a fine in the
amount of $750. The trial court classified appellant as a Tier III sex offender/child
victim offender on Counts 2 and 3, and a Tier II sex offender/child victim offender
on Count 6. The trial court reviewed appellant’s reporting requirements.
On February 21, 2020, appellant filed the instant appeal challenging
the trial court’s judgment.
The trial court’s February 20, 2020 sentencing entry did not specify
the minimum prison term for the indefinite sentences imposed on Counts 2 and 3.
The trial court issued a nunc pro tunc sentencing entry on April 3, 2020, correcting
this clerical error. In the nunc pro tunc sentencing entry, the trial court clarified that
appellant was sentenced to a prison term of “23 years minimum to life”: a sentence
of life with a minimum of ten years on Count 2; a sentence of life with a minimum
of ten years on Count 3; and three years on Count 6. The trial court ordered
appellant to serve the counts consecutively.
In this appeal, appellant assigns four errors for review:
I. The jury found, against the manifest weight of the evidence, that the
appellant committed the acts charged in the indictment.
II. The evidence was not legally sufficient to sustain a guilty verdict.
III. The court failed to declare a mistrial after a witness attacked the
defendant in front of the jury.
IV. The trial court abused [its] discretion by imposing a prison
sentence contrary to R.C. 2929.14 and the purposes and principles of
the felony sentencing guidelines and erred by imposing consecutive
sentences.
For ease of discussion, we will address appellant’s assignments of
error out of order.
II. Law and Analysis
A. Sufficiency
In his second assignment of error, appellant argues that his
convictions were not supported by sufficient evidence.
Crim.R. 29 mandates that the trial court issue a judgment of acquittal
where the prosecution’s evidence is insufficient to sustain a conviction for the
offense. Crim.R. 29(A) and sufficiency of the evidence require the same analysis.
State v. Taylor, 8th Dist. Cuyahoga No. 100315, 2014-Ohio-3134. “An appellate
court’s function when reviewing the sufficiency of the evidence to support a criminal
conviction is to examine the evidence admitted at trial to determine whether such
evidence, if believed, would convince the average mind of the defendant’s guilt
beyond a reasonable doubt.” State v. Driggins, 8th Dist. Cuyahoga No. 98073,
2012-Ohio-5287, ¶ 101, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678
N.E.2d 541 (1997).
The relevant inquiry is whether, after viewing the evidence in a light
most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime proven beyond a reasonable doubt. State v. Vickers,
8th Dist. Cuyahoga No. 97365, 2013-Ohio-1337, citing State v. Jenks, 61 Ohio St.3d
259, 574 N.E.2d 492 (1991).
In the instant matter, appellant references the arguments raised in his
first assignment of error challenging the manifest weight of the evidence.
“Sufficiency” and “manifest weight” challenges present two distinct legal concepts.
Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 23. See
Cleveland v. Hall, 8th Dist. Cuyahoga No. 101820, 2015-Ohio-2698, ¶ 14, citing
App.R. 16(A)(7) (overruling appellant’s assignment of error relating to a sufficiency
challenge pursuant to App.R. 16(A)(7) because the appellant did not make a specific
argument regarding why the convictions were not supported by sufficient evidence,
and only addressed the issues relating to the manifest weight challenge).
In support of his sufficiency challenge, appellant argues that “[t]he
only evidence that the [s]tate provides to show that [he] raped [the victim] was the
testimony of the [victim] and an observation by his ex-girlfriend [Marshay] of an
innocent interaction into whether [the victim] was maintaining her hygiene.”
Appellant’s brief at 11. Appellant contends that the testimony of the victim and
Marshay is not enough to support his convictions “considering the lack of any other
evidence.” Id.Appellant’s “innocent interaction” argument pertains to the manifest
weight of the evidence, not the sufficiency of the evidence. Appellant’s argument
regarding the lack of any other corroborating evidence is also misplaced. The issue
before this court is whether the testimony of the victim and Marshay, if believed,
sufficiently established that appellant committed the offenses of rape and gross
sexual imposition.
As noted above, appellant was convicted on Counts 2 and 3 of rape, in
violation of R.C. 2907.02(A)(1)(b). Count 2 alleged vaginal penetration, and Count
3 alleged fellatio. R.C. 2907.02(A)(1)(b) provides, “[n]o person shall engage in
sexual conduct with another * * * when [t]he other person is less than thirteen years
of age, whether or not the offender knows the age of the other person.”
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.
Regarding the victim’s age, she testified that she was 14-years-old at
the time of trial in February 2020. At the time of the incidents between November
2017 and May 2018, the victim would have been under the age of 13.1
Regarding the rape offense charged in Count 3, the victim testified
that she and her younger brother were visiting appellant at the motel. She was
sitting on the side of the bed in the motel room watching television. Appellant stood
in front of her. She did not recall whether appellant said anything to her. Appellant
took his pants and his underwear off. He told the victim to open her mouth. She
said she would not. He told her to open her mouth again. She did not comply.
Appellant took his thumb and used it to push the victim’s mouth open.
This caused her mouth to open. He held his thumb in this position and put his penis
in her mouth. Appellant grabbed the victim’s head and pushed her head close to his
penis. Appellant did not say anything to her when his penis was in her mouth.
Appellant began moving back and forth. She did not recall how the incident ended.
The victim’s brother was in the shower when appellant forced his
penis into her mouth. Appellant told her brother to stay in the bathroom. When
appellant was done, he told the brother he could come out of the bathroom. The
victim explained that this was not the first “unusual” thing that appellant did to her
at the motel.
1 The victim identified her date of birth at trial, and the record reflects that the state
sufficiently established the victim’s age at the time of the offenses. (Tr. 458.) Appellant
does not dispute this aspect of his convictions.
Regarding the rape offense charged in Count 2, the victim testified that
her brother was in the bathroom of the motel room, and appellant instructed him to
stay in the bathroom “[un]til I tell you to come out.” (Tr. 496.) She turned the
shower water on for her brother and went back and laid in the bed to watch
television. Appellant walked over and was standing next to the bed. Appellant took
off the victim’s pants and underwear. Appellant took his clothes off completely and
got into the bed and laid beside the victim.
The victim was laying on her back. Appellant got on top of her. She
did not feel like she could get away from him. Appellant’s hands were on both sides
of her near her waist. Appellant “pulled open” the victim’s legs. She tried to hold
her legs together but she was unable to stop appellant from spreading them. After
her legs were pulled apart, appellant “put [his penis] inside [the victim’s] vagina.”
(Tr. 504.)
The victim testified that appellant’s penis felt hard when it was inside
her and it hurt her. Appellant’s body was moving back and forth when his penis was
inside her. Appellant was not saying anything to her. Appellant eventually got off
of her and she put her clothes back on. The victim recalled feeling or seeing a white
and gooey substance on her stomach when appellant was done.
The next day, appellant drove the victim and her brother to Latisha’s
house. The victim did not tell anybody what happened at the motel.
After reviewing the record, we find that the testimony of the victim, if
believed, satisfied all the elements of rape in violation of R.C. 2907.02(A)(1)(b), and
sufficiently established that appellant committed the offenses of rape on Counts 2
and 3. Accordingly, appellant’s rape convictions were supported by sufficient
evidence.
As noted above, appellant does not specifically address his gross
sexual imposition conviction in challenging the sufficiency of the evidence. “The
appellant bears the burden of demonstrating error on appeal by reference to the
record of the proceedings below.” Davis v. Wesolowski, 2020-Ohio-677, 146 N.E.3d
633, ¶ 29 (8th Dist.), citing Stancik v. Hersch, 8th Dist. Cuyahoga No. 97501, 2012-
Ohio-1955, see App.R. 16(A)(7). Although it is not this court’s duty to construct an
argument on appellant’s behalf, we find that appellant’s conviction on Count 6 for
gross sexual imposition was supported by sufficient evidence.
Appellant was also convicted of gross sexual imposition, in violation
of R.C. 2907.05(A)(4), which provides, “[n]o person shall have sexual contact with
another * * * when * * * [t]he other person * * * is less than thirteen years of age,
whether or not the offender knows the age of that person.” R.C. 2907.01(B) defines
“sexual contact” as “any touching of an erogenous zone of another, including
without limitation the thigh, genitals, buttock, pubic region, or, if the person is a
female, a breast, for the purpose of sexually arousing or gratifying either person.”
(Emphasis added.) Count 6 alleged that appellant sucked on the victim’s toes.
The victim testified that she went into the dining room of Marshay’s
house to put lotion on her feet because they were dry. Appellant was also in the
dining room. He was sitting at the table facing the victim. Marshay was in the
basement and the other children were upstairs. She had put lotion on in the dining
room before. Appellant asked the victim to help her put the lotion on. She agreed.
Appellant rubbed lotion into his hands and put the lotion on the victim’s feet. When
he was done applying lotion to the victim’s feet, he put one of the victim’s toes in his
mouth. He did not say anything when this occurred.
Marshay came into the dining room and saw the victim’s toe in
appellant’s mouth. Appellant took her foot out of his mouth. The victim did not say
anything to Marshay. The victim went upstairs and got ready for school. She heard
Marshay and appellant talking before they left for school. Marshay was upset. She
did not tell anybody at school what happened with appellant. The victim was
supposed to go back to Marshay’s house after school. Marshay called her cell phone
and changed plans. The victim and her brother went back to Latisha’s house after
school, not Marshay’s house. They never returned to Marshay’s house after this
incident.
Marshay testified that she was in an off and on relationship with
appellant between 2013 and 2017. Their relationship ended in 2017. They broke up
because she saw “inappropriate behavior between [appellant] and [the victim].”
(Tr. 686.)
Before encountering appellant and the victim in the dining room,
Marshay was in the basement. She crept upstairs because she “felt like something
was goin[g] on.” (Tr. 689.) She crept around the corner and saw the following:
[Appellant] and [the victim] was both sitting in the chair. Her foot and
— her leg, he had her foot, and her toes was in his mouth. I seen it and
kind of stepped back, and I had to kinda catch my breath and gather
myself, and then I kinda — I walked back out.
And so when I walked back out, I kind of directed my questions toward
[the victim]. I asked her, you know, what is going on, baby? Are you
okay? What’s going on? She was just kinda like, you know, ain’t
nothing going on. Come on, let’s go.
When she said that, the situation kinda got a little hostile. [Appellant]
was like — he started calling me names and saying what was I saying?
I said, what was going on? Her foot was in your mouth. He said, I was
checking her toes and making sure something. This is my daughter.
What are you sayin’?
(Tr. 687-688.)
When she saw the victim’s toe in appellant’s mouth, Marshay pulled
back and caught her breath because she “wanted to proceed with caution.” Marshay
explained, “I didn’t want — I did not want to make the wrong decision. I did not
want to — I was just kinda thrown off from the whole situation, and I didn’t expect
to see what I seen when I hit the corner. And I just didn’t know how to react. So I
wanted to make sure that I did not do the wrong thing.” (Tr. 690.)
Appellant did not return to her house after this incident. Their
relationship ended.
Marshay tried to tell Latisha and Poole about what she witnessed in
the dining room. Marshay went to Latisha’s house and attempted to speak with
Latisha about “what I had witnessed and what I thought was goin[g] on between
[appellant] and [the victim].” (Tr. 694.) After she went to Latisha’s house, Marshay
spoke with Latisha on the phone and relayed her concerns to Latisha about what she
had seen.
Appellant claimed that he had been checking the victim’s toes.
Marshay confirmed, however, that she did not consider what she observed in the
dining room as having anything to do with appellant checking or giving hygiene
instructions to the victim.
The testimony of the victim and Marshay, if believed, sufficiently
established that appellant committed the offense of gross sexual imposition on
Count 6.
Although R.C. 2907.01(B) does not specifically identify feet or toes as
erogenous zones, the list set forth therein is non-exhaustive.
Since R.C. 2907.01(B) contains the phrase, “including without
limitation,” it is reasonable to conclude “that the legislature intended
that body parts that are not traditionally viewed as erogenous zones,
may, in some instances, be considered erogenous zones.” State v.
Miesse, 2d Dist. Clark No. 99-CA-74, 2000 Ohio App. LEXIS 3719(Aug. 18, 2000).
Indeed, Ohio courts have typically found that the list of erogenous
zones in R.C. 2907.01 is a non-exhaustive list. See State v. Stair, 12th
Dist. Warren No. CA2001-03-017, 2002 Ohio [App. LEXIS 87 (Jan. 14,
2002)] (finding that victim’s hips constituted an erogenous zone);
Miesse, supra (holding that the defendant’s kissing, touching, and
blowing of the victim’s stomach was sexual contact); State v. Young,
4th Dist. Athens No. 96CA1780, 1997 Ohio App. LEXIS 3882 (Aug. 15,
1997) (holding that touching a victim’s buttock through her clothing
constituted sexual contact); State v. Watkins, 10th Dist. Franklin No.
92AP-1546, 1993 Ohio App. LEXIS 2412 (May 4, 1993) (finding that the
rubbing of the back of the victim’s leg was sexual contact).
State v. Peddicord, 3d Dist. Henry No. 7-12-24, 2013-Ohio-3398, ¶ 15-16. “Sexual
contact, an element of gross sexual imposition, means any nonconsensual physical
touching, even through clothing, of the body of another.” (Emphasis added.) State
v. Jones, 8th Dist. Cuyahoga No. 87411, 2006-Ohio-5249, ¶ 15, citing State v. Ackley,
120 Ohio Misc.2d 60, 2002-Ohio-6002, 778 N.E.2d 676.
The state was not required to present direct evidence proving the
element of sexual arousal or gratification. State v. Kalka, 8th Dist. Cuyahoga No.
106339, 2018-Ohio-5030, ¶ 31. Rather, the jury “may infer that a defendant was
motivated by a desire for sexual arousal or gratification from the totality of the
circumstances.” State v. Edwards, 8th Dist. Cuyahoga No. 81351, 2003-Ohio-998,
¶ 22, citing State v. Oddi, 5th Dist. Delaware No. 02CAA01005, 2002-Ohio-5926.
[O]ne with a fetish for navels or feet could be in violation of [R.C.
2907.05(A)] for touching the navel or feet of another, not his or her
spouse, for the purpose of sexual arousal or gratification. Although the
body parts, namely navel or feet, are not specifically listed in the “sexual
contact” definition [under R.C. 2907.01(B)], if the state is able to prove
beyond a reasonable doubt that, in the mind of the offender, or in the
mind of the victim, or in the mind of a reasonable person, those body
parts are sensitive to sexual stimulation, or are apt to cause sexual
arousal or gratification in either the offender or the victim, and if it was
the purpose of the offender in the touching to obtain sexual arousal or
gratification for himself or the victim, then the state has carried its
burden of proof.
Ackley at ¶ 15.
Whether the touching or contact was performed for the purpose of
sexual arousal or gratification is a question of fact to be inferred from
the type, nature, and circumstances of the contact. [State v. Meredith,
12th Dist. Warren No. CA2004-06-062, 2005-Ohio-2664, ¶ 13], citing
[In re Anderson, 116 Ohio.App.3d 441, 443, 688 N.E.2d 545 (12th
Dist.1996)], and State v. Mundy, 99 Ohio App.3d 275, 289, 650 N.E.2d
502 [(2d Dist.1994)]. In determining the defendant’s purpose, the trier
of fact may infer what the defendant’s motivation was in making
physical contact with the victim. Meredith, citing Mundy and [State v.
Cobb, 81 Ohio App.3d 179, 185, 610 N.E.2d 1009 (9th Dist.1991)]. “If
the trier of fact determines that the defendant was motivated by desires
of sexual arousal or gratification, and that the contact occurred, then
the trier of fact may conclude that the object of the defendant’s
motivation was achieved.” Cobb [at 185].
In re A.L., 12th Dist. Butler No. CA2005-12-520, 2006-Ohio-4329, ¶ 20.
In the instant matter, the jury could have reasonably inferred, from
the type, nature, and circumstances of the contact between appellant’s mouth and
the victim’s toe, that the contact was performed for the purpose of sexual arousal or
gratification. Appellant put the victim’s toe in his mouth when they were alone in
the dining room. No one else was around. Marshay was in the basement, and the
other children were upstairs. Appellant offered to apply the lotion for the victim,
and she agreed. Appellant exceeded the scope of the victim’s consent by putting her
toe into his mouth. The victim confirmed that appellant did not merely “kiss” her
toe, he actually inserted her toe into his mouth. Finally, the victim testified that
appellant took her toe out of his mouth when Marshay came into the dining room
and saw what was happening.
Marshay, with whom appellant had been romantically involved
between 2013 and 2017, was thrown off when she saw the victim’s toe in appellant’s
mouth. So much so that she had to catch her breath and collect herself. Marshay’s
observation led her to believe that something “was goin’ on between [appellant] and
[the victim].” (Tr. 694.) Marshay was so concerned by her observation and belief
that she made arrangements for the victim and her brother to go to Latisha’s house
after school, rather than returning to Marshay’s house, and Marshay relayed her
concerns that something “was goin’ on between [appellant] and [the victim]” to
Latisha and Poole.
Furthermore, the jury could have reasonably inferred that appellant
performed the contact for the purpose of sexual arousal or gratification from his
escalation from sexual contact to sexual conduct. The victim testified that appellant
put her toe in his mouth while he was living with Marshay. The victim never
returned to Marshay’s house after this initial incident, but she continued to see
appellant at the motel. Subsequent incidents occurred at the motel during which
appellant escalated from sexual contact to sexual conduct, forcing his penis into the
victim’s mouth and vagina.
Viewing the testimony of the victim and Marshay in a light most
favorable to the state, we find that a rational trier of fact could have reasonably
inferred that appellant put the victim’s toe in his mouth for the purpose of sexual
arousal or gratification. Based on the foregoing analysis, appellant’s gross sexual
imposition conviction was supported by sufficient evidence.
For all of the foregoing reasons, appellant’s second assignment of
error is overruled. Appellant’s rape and gross sexual imposition convictions were
supported by sufficient evidence.
B. Manifest Weight
In his first assignment of error, appellant argues that his convictions
are against the manifest weight 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, ¶ 12. A reviewing court “‘weighs the evidence and all reasonable inferences,
considers the credibility of witnesses and determines whether in resolving conflicts
in the evidence, the jury clearly lost its way and created such a manifest miscarriage
of justice that the conviction must be reversed and a new trial ordered.’” Thompkins,
78 Ohio St.3d at 387, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio App.3d 172,
175, 485 N.E.2d 717 (1st Dist.1983). A conviction should be reversed as against the
manifest weight of the evidence only in the most “exceptional case in which the
evidence weighs heavily against the conviction.” Id.In support of his manifest weight challenge, appellant appears to
argue that his convictions were against the manifest weight of the evidence because
they were based on the victim’s testimony alone without any corroboration or
supporting physical evidence. Appellant appears to challenge the credibility of “the
only witness” Marshay and her testimony on the basis that she “was already on the
outs with [appellant.]” Appellant’s brief at 10.
Regarding appellant’s argument that Marshay was not credible,
Marshay testified that her relationship with appellant was “[o]n and off since 2013.”
The relationship ended in 2017. Marshay testified that the relationship ended
because she saw “inappropriate behavior between [appellant] and [the victim].”
(Tr. 686.)
Marshay acknowledged that her and appellant were already on the
rocks before she witnessed the incident in the dining room. She had already been
living downstairs in the basement for approximately one month. They did not have
plans to officially split up, however. Nor were they trying to reconcile with one
another. They were just “seein[g] what was goin[g] on” and she was giving appellant
some space. (Tr. 705.)
Accordingly, the jury had sufficient information about the
relationship between Marshay and appellant to assess the credibility of Marshay.
The jury also had sufficient information to assess the credibility of all the witnesses.
See State v. Davis, 8th Dist. Cuyahoga No. 107925, 2019-Ohio-4672, ¶ 66; State v.
Sumlin, 8th Dist. Cuyahoga No. 108000, 2020-Ohio-1600, ¶ 58.
Appellant appears to argue that the victim’s testimony was not
credible because “[m]any additional facts came out during trial that the victim failed
to provide in her initial statement.” Appellant’s brief at 10. Defense counsel
emphasized and thoroughly explored these discrepancies between the victim’s
initial statement to Detective Jackson and her trial testimony on cross-examination.
In fact, a 29-minute video of the victim’s initial interview was played for the jury at
trial.
After reviewing the record, we acknowledge that there were, in fact,
some minor inconsistencies between the victim’s initial statement to police and trial
testimony. For instance, the victim asserted in her initial statement that she
showered at the motel before her brother; the victim testified at trial, however, that
her brother would take the first shower at the motel. The victim testified that her
brother was in the shower every time that appellant assaulted her in the motel room;
in her initial statement, however, the victim stated that her brother was either in the
shower or asleep when she was assaulted. The victim testified that appellant had
taken his pants off when he forced his penis into her mouth; in her initial statement,
however, the victim stated that appellant’s clothes were on when he put his penis in
her mouth. During the initial interview, the victim stated that the incidents began
in January 2018; she could not, however, remember the date of the first or the last
incident. The victim testified at trial that she had an idea of when the incidents
happened, the months in which they happened, and how old she was and what grade
she was in at the time. Although she did not know the dates on which the incidents
occurred, the victim was able to determine when the incidents occurred in relation
to holidays, including Christmas, Easter, and Martin Luther King, Jr., Day.
Although there were minor inconsistencies between the victim’s
initial statement to police and her trial testimony, the victim’s account of the
incidents were largely consistent in all material respects.
[A] defendant is not entitled to reversal on manifest weight grounds
merely because certain aspects of a witness’ testimony are inconsistent
or contradictory. See, e.g., [State v. Nitsche, 2016-Ohio-3170, 66
N.E.3d 135, ¶ 45 (8th Dist.)]; see also State v. Wade, 8th Dist. Cuyahoga
No. 90029, 2008-Ohio-4574, ¶ 38 (“‘A conviction is not against the
manifest weight of the evidence solely because the [factfinder] heard
inconsistent testimony.’”), quoting State v. Asberry, 10th Dist.
Franklin No. 04AP-1113, 2005-Ohio-4547, ¶ 11; State v. Mann, 10th
Dist. Franklin No. 10AP-1131, 2011-Ohio-5286, ¶ 37 (“‘While [a
factfinder] may take note of the inconsistencies and resolve or discount
them accordingly, * * * such inconsistencies do not render defendant’s
conviction against the manifest weight or sufficiency of the evidence.’”),
quoting State v. Nivens, 10th Dist. Franklin No. 95APA09-1236, 1996
Ohio App. LEXIS 2245, 7 (May 28, 1996).
State v. Flores-Santiago, 8th Dist. Cuyahoga No. 108458, 2020-Ohio-1274, ¶ 40.
In the instant matter, although there were some minor
inconsistencies between the victim’s initial statements to police and trial testimony,
the record reflects that the victim’s statements and testimony were consistent in
many material respects. The victim’s testimony is credible and consistent that
appellant committed the rape offenses charged in Counts 2 and 3, and the gross
sexual imposition offense charged in Count 6.
Additionally, we find that the aforementioned inconsistencies
regarding the order in which the children showered at the motel, whether the
brother was in the bathroom or asleep when appellant assaulted the victim, and
whether appellant’s pants were off or on when he forced his penis into the victim’s
mouth should not control the outcome of this case. “Minor inconsistencies in
witness testimony will not render a conviction so against the manifest weight of the
evidence as to cause a miscarriage of justice.” State v. McNamara, 8th Dist.
Cuyahoga No. 104168, 2016-Ohio-8050, ¶ 38. The weight of the evidence supports
appellant’s convictions, and the jury did not lose its way and create a manifest
miscarriage of justice.
While we acknowledge the inconsistencies in the testimony of the
victim and her statements to police, a thorough review of the record reveals that the
victim provided consistent and generally credible testimony as to the critical
questions in this case — appellant’s sexual contact and Marshay’s house, and
appellant’s sexual conduct at the motel. See State v. Johnson, 8th Dist. Cuyahoga
No. 107929, 2019-Ohio-5335, ¶ 12. The victim testified in detail about appellant’s
sexual abuse. The abuse the victim suffered at the hands of appellant was
undoubtedly traumatic. It is not reasonable to expect the victim to remember every
single detail about appellant’s actions and the circumstances under which they
occurred, particularly because there were multiple incidents that occurred over a
period of time. The record reflects that the victim testified consistently about the
important aspects of appellant’s conduct.
Finally, appellant contends that the investigation into the victim’s
allegations was “flawed and inadequate[.]” Appellant’s brief at 10. Defense counsel
thoroughly explored and confronted Detective Jackson with the purported
deficiencies in his investigation on cross-examination.
Detective Jackson testified about the investigation he conducted after
the matter was reported on May 27, 2018. Detective Jackson testified that he
interviewed the victim and her brother. He stated that he also spoke with or reached
out to Latisha, appellant’s grandmother, appellant’s mother, and Marshay.
Detective Jackson reviewed the victim’s medical records from University Hospitals.
Detective Jackson also reviewed the text messages between Latisha
and appellant that Latisha provided to him. In the text messages, Latisha told
appellant she was going to take the victim to the hospital. Appellant replied, “[when]
they tell [you the victim is] cool, don’t call my phone” and “[d]on’t try to put me [i]n
jail[.]” Appellant also replied, “[l]isten[,] just keep them away I’m moving out of
town[.]” Latisha responded to appellant, “[y]ou sick [as f**k].” Appellant replied,
“[m]an all I ever did was make [the victim] smell herself cause she come out smelling
like boo boo[.]” Latisha testified about these text messages at trial. The final text
message sent by appellant pertained to the incident that occurred in the dining room
of Marshay’s house. (Tr. 425.)
Detective Jackson acknowledged that he did not conduct a phone
dump2 of Latisha’s cell phone. He did not look at text messages on Latisha’s phone
from the day before or the day after she texted appellant; he explained there was no
need to do a phone dump of Latisha’s phone because of the text messages on her
phone from appellant
Detective Jackson went to the motel where the incidents involving
appellant took place. He attempted to get photographs of the motel rooms involved.
The motel’s staff was unable to identify the exact rooms appellant and the children
occupied because the victim could not recall the exact dates on which the incidents
took place. Detective Jackson did not take pictures of the various rooms and room
2 A phone dump is a process of retrieving data and information, such as call logs,
from a phone. See State v. Mathis, 8th Dist. Cuyahoga No. 107986, 2019-Ohio-4887,
¶ 27; State v. Clark, 2018-Ohio-521, 106 N.E.3d 256, ¶ 28 (6th Dist.).
configurations from the motel to show to the victim. He explained that these
photographs would not accurately show the crime scene because the configurations
of each room could be entirely different.
He did not come across anything during the course of his investigation
that suggested there was any bad blood between the parties that testified in this case,
which included the victim, Latisha, and Marshay, that led him to believe that it was
necessary to look at additional text messages or conduct a phone dump. (Tr. 782.)
Detective Jackson confirmed again that none of the parties showed any bad blood
towards each other. Finally, Detective Jackson testified that he did not come across
anything during the course of his investigation that led him to suspect that anyone
was trying to do harm to appellant by bringing false allegations against him.
Accordingly, the jury had sufficient information about Detective
Jackson’s investigation to assess his credibility and the credibility of his testimony.
The state’s theory of the case at trial was that appellant put the victim’s
toe in his mouth for the purpose of sexual arousal or gratification, and that appellant
raped the victim in the motel. On the other hand, the defense’s theory of the case
was that the incident involving the victim’s foot was an innocent interaction between
appellant and the victim, during which appellant was inquiring about the victim’s
hygiene and smelling her foot. The defense’s theory was that Marshay made up a
false claim because her and appellant were “already on the outs[.]” Appellant’s brief
at 10. Regarding the sexual conduct at the motel, the defense’s theory was that the
sexual conduct did not occur because if it had, the victim’s younger brother would
have noticed.
“‘[A] conviction is not against the manifest weight of the evidence
simply because the [finder of fact] rejected the defendant’s version of the facts and
believed the testimony presented by the [prosecution].’” State v. Jallah, 8th Dist.
Cuyahoga No. 101773, 2015-Ohio-1950, ¶ 71, quoting State v. Hall, 4th Dist. Ross
No. 13CA3391, 2014-Ohio-2959, ¶ 2. The jury, as the finder of fact, did not lose its
way in resolving the conflicting theories based on the evidence presented at trial.
After reviewing the record, we find appellant’s convictions are not
against the manifest weight of the evidence. We do not find in resolving conflicts in
the evidence that the jury, as the trier of fact, clearly lost its way in finding appellant
guilty of rape and gross sexual imposition. Furthermore, this is not the exceptional
case in which the evidence weighs heavily against appellant’s convictions.
For all of the foregoing reasons, appellant’s first assignment of error
is overruled. Appellant’s convictions are not against the manifest weight of the
evidence.
C. Motion for Mistrial
In his third assignment of error, appellant argues that the trial court
erred in failing to declare a mistrial after appellant was “attacked” by a witness in
front of the jury. Appellant’s argument pertains to the testimony of Poole.
Poole lives with his two children, his girlfriend Latisha, and her two
children. Appellant is the father of Latisha’s children. As he testified, Poole stared
at appellant and directed offensive language towards him. (Tr. 738.)
Following his testimony, and as he stepped down from the witness
stand, Poole attempted to physically attack appellant at the defense table and in
front of the jury. As he was escorted out of the courtroom, Poole shouted additional
obscenities. (Tr. 751.)
The trial court ordered the jury to exit the courtroom. After Poole and
the jury were out of the courtroom, defense counsel moved for a mistrial, arguing:
Your Honor, based upon the outburst in the court not caused by the
Judge, not caused by the prosecutor, not caused by the Defendant, or
Defense counsel, we still had an outburst where the witness attempted
to attack the Defendant in front of the jury, and it took about five
deputies to restrain the gentleman, and there was a fight.
I’m going to move for a mistrial because it has a highly inflammatory
and prejudicial effect upon their ability to consider this case on the
merits, so I will move for a mistrial.
(Tr. 751-752.)
The state argued that because the trial court and the state were not
responsible for the outburst, a mistrial was not necessary and a curative instruction
would “suffice to serve as a counterbalance to what happened in court.” (Tr. 752.)
In support of the motion for a mistrial, defense counsel argued, “we’re
entitled to a fresh jury, and not have the taint of that violence against the Defendant
in front of the jury.” (Tr. 752.)
The trial court denied defense counsel’s motion for a mistrial:
The Court makes the following finding with reference to your motion.
The Court finds that the actions that occurred not as a result of any
action by any of the agents of the State of Ohio, nor by any of the
members of the Bar Association, for which we are all officers.
The Court doesn’t feel any of those individuals engaged in any conduct
that caused this to arise. That this was an honest spur reaction that was
generated by a Defendant’s witness, and that none of the officers of the
Court had anything to do with it.
It was the — Fortunately, the Cuyahoga County Sheriff’s Department
was here to suppress the attack and it was suppressed.
The unfortunate thing is that it did occur in front of the jury. However,
they also had the opportunity to hear his testimony, and to witness his
anger, and his state of mind. I believe a curative instruction will satisfy
a fair and just trial.
And, therefore, the motion will be denied.
(Tr. 752-753.)
In this appeal, appellant argues that the incident that occurred in
front of the jury was “highly traumatic.” He further speculates that it is “highly
probable that many of the jurors never have experienced an act of violence in person
and were negatively affected. Upon experiencing this traumatic event, it would be
highly unlikely that the average juror would be capable of continuing in their duty
to provide a fair trial to Mr. Solomon.” Appellant’s brief at 13.
The trial court should declare a mistrial “only when the ends of justice
so require and a fair trial is no longer possible.” State v. Franklin, 62 Ohio St.3d
118, 127, 580 N.E.2d 1 (1991), citing Illinois v. Somerville, 410 U.S. 458, 462-463,
93 S.Ct. 1066, 35 L.Ed.2d 425 (1973). A trial court enjoys broad discretion in ruling
on a motion for a mistrial. State v. Iacona, 93 Ohio St.3d 83, 100, 752 N.E.2d 937(2001). This court will not reverse a trial court’s ruling on a motion for a mistrial
absent an abuse of that discretion. State v. Benson, 8th Dist. Cuyahoga No. 87655,
2007-Ohio-830, ¶ 136.
In support of his argument that the trial court erred by not declaring
a mistrial following Poole’s outburst, appellant directs this court to State v. Scott,
101 Ohio St.3d 31, 2004-Ohio-10, 800 N.E.2d 1133, State v. White, 85 Ohio St.3d
433, 440, 709 N.E.2d 140 (1999), and State v. Morales, 32 Ohio St.3d 252, 513
N.E.2d 267 (1987).
In Scott, involving a capital murder trial, defense counsel moved for a
mistrial on the basis that the victim’s family members crying during trial “enhanced
jury sympathy for [the victim] and his family, thereby depriving [the defendant] of
a fair trial.” Id. at ¶ 43. On one of the occasions in which defense counsel moved for
a mistrial, defense counsel asserted that a victim’s mother and some of the jurors
had been crying during the testimony of a state’s witness. Id. at ¶ 46.
The Ohio Supreme Court set forth the following test regarding
emotional outbursts during trial:
a trial court must determine, as a question of fact, whether an
emotional outburst [during trial] deprived the defendant of a fair trial
by improperly influencing the jury. State v. Benge[, 75 Ohio St.3d 136,
144, 661 N.E.2d 1019 (1996)]; [Morales at 255]; State v. Bradley[, 3
Ohio St.2d 38, 209 N.E.2d 215 (1965)], syllabus. “In the absence of
clear, affirmative evidence to the contrary, the trial court’s
determination will not be disturbed.” Morales [at 255].
Scott at ¶ 44. “Only the trial judge can authoritatively determine whether the jury
was disturbed, alarmed, shocked, or moved by the demonstration.” Morales at 255
After reviewing the record, we find no basis upon which to conclude
that the trial court’s ruling denying defense counsel’s motion was unreasonable,
arbitrary, or unconscionable. In this case, unlike Scott, Poole’s violent outburst and
attempt to attack appellant is unlikely to elicit any sympathy for the victim or Poole,
much less the same sympathy elicited by a victim’s mother and family members
crying. In fact, the argument can be made that the incident benefitted appellant
rather than prejudiced him.
Poole’s outburst and attempt to attack appellant was more likely to
have a negative impact on the jury’s perception of Poole and his testimony than on
the jury’s perception of appellant. Poole’s outburst may have even elicited sympathy
for appellant, as Poole was the perpetrator of the attempted attack, and appellant
was the victim.
Furthermore, there is no indication that the jury was improperly
influenced by Poole’s outburst, or that the jury’s verdict was the product of passion
or prejudice that resulted therefrom. As noted above, the jury did not find appellant
guilty on all counts and specifications charged in the indictment. It is evident that
the jury was capable of following the trial court’s instructions and considering the
evidence as it pertained to each individual count.
Unlike Scott, 101 Ohio St.3d 31, 2004-Ohio-10, 800 N.E.2d 1133,
where a victim’s mother and members of the jury were purportedly crying during
the testimony of a state’s witness, there is no evidence in this case that the incident
had any effect on the jury, or any evidence indicating that any of the jurors displayed
any emotions during or after Poole’s outburst. Although appellant speculates that
the incident negatively impacted the jurors, he fails to identify anything in the record
in support of his claim (i.e. jurors that were crying, jurors that were reluctant to
continue serving on the jury after the outburst, jurors that asked to be removed from
the jury after the incident out of fear, jurors that had health- or medical-related
issues as a result of the incident). See State v. Trimble, 122 Ohio St.3d 297, 2009-
Ohio-2961, 911 N.E.2d 242, ¶ 126 (holding that the trial court did not abuse its
discretion in denying defense counsel’s motion for a mistrial because “[n]othing in
the record shows that the outburst had any effect on the jury” and “the trial court’s
admonitions focused the jury on the evidence and away from the outburst.”).
Finally, in Scott, the trial court “cautioned jurors to focus on the
evidence and to disregard extrinsic matters in their decision making.” Id. at ¶ 48.
Similarly, in this case, the trial court provided the following curative instruction to
the jury following the incident:
Ladies and gentlemen of the jury, the Court would, first of all, like to
issue an apology to you both professionally and personally for the
display that occurred in the courtroom.
That isn’t the way we like to conduct ourselves. We consider ourselves
as holding a formal proceeding where dignity and respect is shown
throughout the course of the proceedings.
However, sometimes emotional things occur. They occur in people’s
personal lives as well as their professional lives. We ask that you
understand that, and certainly ask that you do not take that into
consideration for your finding of what the facts of this case to be.
We ask, ladies and gentlemen of the jury, that you base your findings
solely on the facts as you find them to be in this case, and the law that
will be applied to you by the Judge.
I would also like to indicate for the record, the statute does require
every time that you leave the courtroom that I give you what’s called an
admonition. And because of the emergency situation that I did not
want you to be here in the event of something further occurring, I just
asked you to leave. So I want to apologize for that as well.
While it is unusual, like I said, it doesn’t happen like that all the time.
And it certainly cannot have any impact on what you find the facts of
this case to be.
Now, because our schedule has been interrupted, we are going to recess
for the evening.
(Emphasis added.) (Tr. 754-755.)
This court has explained that “[c]urative instructions have been
recognized as an effective means of remedying errors or irregularities that occur
during trial.” State v. Williams, 8th Dist. Cuyahoga No. 94242, 2010-Ohio-5484,
¶ 21, citing State v. Ghaster, 8th Dist. Cuyahoga No. 91576, 2009-Ohio-2134, citing
State v. Zuern, 32 Ohio St.3d 56, 61, 512 N.E.2d 585 (1987). Furthermore, a jury is
presumed to follow instructions provided by the trial court, including curative
instructions. Id., citing State v. Henderson, 39 Ohio St.3d 24, 33, 528 N.E.2d 1237(1988).
For all of the foregoing reasons, we find that appellant has failed to
provide clear and affirmative evidence demonstrating that Poole’s outburst
improperly influenced the jury, materially affected the merits of the case, or
deprived appellant of a fair trial. See State v. Williams, 8th Dist. Cuyahoga No.
106266, 2018-Ohio-3368, ¶ 41. Therefore, we find no basis upon which to conclude
that the trial court’s judgment denying defense counsel’s motion for a mistrial, and
determination that a curative instruction to the jury was more appropriate than
granting a mistrial, was arbitrary, unreasonable, or unconscionable.
Appellant’s third assignment of error is overruled.
D. Consecutive Sentences
In his fourth assignment of error, appellant argues that the trial court
abused its discretion and erred in imposing consecutive sentences.
As an initial matter, we note that this court does not review felony
sentencing for an abuse of discretion. Rather, we review felony sentences under the
standard set forth in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516,
2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1, 16.
R.C. 2953.08(G)(2) provides that when reviewing felony sentences, a
reviewing court may overturn the imposition of consecutive sentences where the
court “clearly and convincingly” finds that (1) “the record does not support the
sentencing court's findings under R.C. 2929.14(C)(4),” or (2) “the sentence is
otherwise contrary to law.”
R.C. 2929.14(C)(4) provides that in order to impose consecutive
sentences, the trial court must find that consecutive sentences are (1) necessary to
protect the public from future crime or to punish the offender, (2) that such
sentences would not be disproportionate to the seriousness of the conduct and to
the danger the offender poses to the public, and (3) that one of the following applies:
(a) The offender committed one or more of the multiple offenses while
the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the
Revised Code, or was under postrelease control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one
or more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the
courses of conduct adequately reflects the seriousness of the offender’s
conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
Conformity with R.C. 2929.14(C)(4) requires the trial court to make
the statutory findings at the sentencing hearing, which means that “‘the [trial] court
must note that it engaged in the analysis’ and that it ‘has considered the statutory
criteria and specifie[d] which of the given bases warrants its decision.’” State v.
Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 26, quoting State v.
Edmonson, 86 Ohio St.3d 324, 326, 715 N.E.2d 131 (1999). To this end, a reviewing
court must be able to ascertain from the record evidence to support the trial court’s
findings. Bonnell at ¶ 29. “A trial court is not, however, required to state its reasons
to support its findings, nor is it required to [recite verbatim] the statutory language,
‘provided that the necessary findings can be found in the record and are
incorporated in the sentencing entry.’” State v. Sheline, 8th Dist. Cuyahoga No.
106649, 2019-Ohio-528, ¶ 176, quoting Bonnell at ¶ 37.
In the instant matter, appellant does not further develop his
argument that the trial court erred in imposing consecutive sentences and that
consecutive sentences were contrary to R.C. 2929.14 and “the felony sentencing
guidelines[.]” For instance, appellant does not argue that the trial court failed to
make the requisite findings under R.C. 2929.14(C)(4) or that the record clearly and
convincingly does not support the trial court’s findings. Nevertheless, after
reviewing the record, we find that the trial court did not err in imposing consecutive
sentences.
The record reflects that the trial court made the requisite findings
pursuant to R.C. 2929.14(C)(4) in imposing consecutive sentences. In making the
first finding under R.C. 2929.14(C)(4), the trial court stated, “[t]he Court finds
consecutive sentences are necessary to protect the public from future crime. The
Court finds that consecutive sentences are necessary to punish the offender.”
(Tr. 945-946.) The trial court made a thorough and detailed proportionality finding:
The Court finds that consecutive sentences are not disproportionate to
the seriousness of the offender’s conduct.
When the Court makes that finding, the Court does find that Mr.
Solomon used his parental relationship with [the victim] to weaponize
his penis and use it against her, and he continued to weaponize his
penis on a regular basis, and he never, ever, ever relented. He
continued to weaponize his penis and use it against [the victim].
The Court further finds that consecutive sentences are not
disproportionate to the danger the offender poses to the public.
When I arrived at that conclusion, the Court does take into
consideration the relationship that existed between he [the victim].
The harm that was caused, that he reduced her to nothing, and made
her think she was unimportant. And that he never, ever, ever showed
any kindness to her once he weaponized his penis and used it against
her.
(Tr. 946.)
Regarding the third finding, the trial court determined that R.C.
2929.14(C)(4)(c) applied:
The Court further finds the offender’s history of criminal conduct
demonstrates that consecutive sentences are necessary to protect the
public from future crime by the offender.
The Court does find that he has a prior history in front of Judge Robert
McClelland in Case No. CR 12-567455 where he was convicted of
robbery.
The Court further finds that he has a prior in front of Judge Robert
McClelland in Case CR 12-563540 where he pled guilty to trafficking in
drugs.
Further, in front of Judge Robert McClelland, Case No. CR 12-562666,
he entered a plea of guilty to drug possession.
Additionally, in front of Judge Robert McClelland, in Case No. CR 12-
561866-B, he entered a plea of guilty to a trafficking offense.
Lastly, in front of Judge Bridget M. McCafferty, in Case No. CR 9-
521197 he entered a plea of carrying a concealed weapon.
The Court further finds that his conduct over the course of this trial
where he had people contact the witnesses in this case, and his conduct,
once the verdict was read, where he openly yelled out in court about he
was innocent indicates that he has no remorse for his conduct.
And, therefore, the Court believes that consecutive sentences are
necessary and justified.
(Tr. 945-948.)
Accordingly, the record reflects that the trial court made the requisite
findings during the sentencing hearing under R.C. 2929.14(C)(4) in imposing
consecutive sentences. The trial court incorporated the consecutive sentence
findings into its sentencing journal entry, as required by Bonnell. The trial court’s
April 3, 2020 sentencing entry provides, in relevant part,
Consecutive sentence is necessary to protect the public from future
crimes and is necessary to punish he offender. Consecutive sentences
are not disproportionate to the seriousness of the offender’s conduct
and are not disproportionate to the danger the offender poses to the
public. Offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
For all of the foregoing reasons, we find that the trial court made the
requisite findings during the sentencing hearing under R.C. 2929.14(C)(4) in
imposing consecutive sentences, and incorporated the findings into its sentencing
journal entry.
After reviewing the record, we cannot say that the record clearly and
convincingly does not support the trial court’s findings under R.C. 2929.14(C)(4).
Appellant expressed no remorse whatsoever, either during trial or at sentencing, for
his conduct or the devastating impact it had on the victim. Appellant failed to accept
any responsibility for his actions. Rather, appellant asserted that he was innocent,
that “no evidence or nothing” had been found, and that the jury’s verdict was “crazy.”
(Tr. 937.)
The victim’s mother, Latisha Griffith, addressed the trial court.
Griffith described the impact appellant’s actions had on the victim’s life, and how
appellant took something from the victim that she will never get back. Appellant’s
actions also “tore [their] family apart, our lives, our sanity.” (Tr. 939.) The victim
will be dealing with the impact of appellant’s actions for the rest of her life.
For all of the foregoing reasons, we find that the record before this
court clearly and convincingly supports the trial court’s R.C. 2929.14(C)(4) findings.
Because the trial court made the requisite findings during the sentencing hearing
under R.C. 2929.14(C)(4), incorporated the findings into its sentencing journal
entry, and the findings are clearly and convincingly supported by the record, the trial
court did not err in imposing consecutive sentences.
Finally, appellant also appears to argue that the trial court’s
imposition of consecutive sentences was contrary to “the felony sentencing
guidelines,” R.C. 2929.11 and 2929.12. Appellant’s brief at 14. Appellant argues that
the trial court “abused its discretion in failing to properly weigh the seriousness and
recidivism factors set forth in R.C. 2929.12, as well as failing to properly consider
the purposes and principles of the felony sentencing guidelines before imposing a
23 year to life sentence.” Appellant’s brief at 16.
A sentence is contrary to law if the sentence falls outside the statutory
range for the particular degree of offense or the trial court failed to consider the
purposes and principles of felony sentencing set forth in R.C. 2929.11, and the
seriousness and recidivism factors set forth in R.C. 2929.12. State v. Hinton, 8th
Dist. Cuyahoga No. 102710, 2015-Ohio-4907, ¶ 10, citing State v. Smith, 8th Dist.
Cuyahoga No. 100206, 2014-Ohio-1520, ¶ 13. Unlike R.C. 2929.14(C)(4), governing
consecutive sentences, R.C. 2929.11 and 2929.12 are not fact-finding statutes. State
v. Wenmoth, 8th Dist. Cuyahoga No. 103520, 2016-Ohio-5135, ¶ 16.
Although the trial court must consider the principles and purposes of
sentencing, as well as any mitigating factors, the court is not required to use
particular language nor make specific findings on the record regarding its
consideration of those factors. State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669,
951 N.E.2d 381, ¶ 31; State v. Jones, 8th Dist. Cuyahoga No. 99759, 2014-Ohio-29,
¶ 13. In fact, unless the defendant affirmatively shows otherwise, it is presumed that
the trial court considered the relevant sentencing factors under R.C. 2929.11 and
2929.12. State v. Keith, 8th Dist. Cuyahoga Nos. 103413 and 103414, 2016-Ohio-
5234, ¶ 11. This court has held that a trial court’s statement in its sentencing journal
entry that it considered the required statutory factors, without more, is sufficient to
fulfill its obligations under R.C. 2929.11 and 2929.12. State v. Paulino, 8th Dist.
Cuyahoga No. 104198, 2017-Ohio-15, ¶ 37.
In the instant matter, the trial court’s sentence on appellant’s gross
sexual imposition conviction was within the permissible statutory range under R.C.
2929.14(A)(3)(a) for third-degree felonies. The sentences imposed by the trial court
on appellant’s rape convictions complied with the statutory provisions set forth in
R.C. 2971.03(B)(1)(a), which requires the trial court to impose an indefinite prison
term consisting of a minimum term of ten years and a maximum term of life
imprisonment. The trial court’s sentencing journal entry provides, in relevant part,
“[t]he court considered all required factors of the law. The court finds that prison is
consistent with the purpose of R.C. 2929.11.”
Aside from this statement in its sentencing entry, the record reflects
that the trial court did, in fact, consider R.C. 2929.11 and 2929.12 in imposing its
sentence. The trial court considered the applicable seriousness and recidivism
factors indicating that (1) appellant’s conduct was more seriousness than conduct
normally constituting the offenses and (2) appellant is likely to commit future
crimes. In imposing appellant’s sentence, the trial court emphasized that
“[appellant’s] conduct over the course of this trial where he had people contact the
witnesses in this case, and his conduct, once the verdict was read, where he openly
yelled out in court about he was innocent indicates that he has no remorse for his
conduct.” (Tr. 947-948.) The trial court also emphasized the harm that appellant’s
conduct caused the victim and how appellant exploited his father-daughter
relationship with the victim in committing the offenses.
Appellant has failed to affirmatively demonstrate that the trial court
failed to consider R.C. 2929.11 and 2929.12 in crafting its sentence. Appellant’s
sentence is not contrary to law merely because he disagrees with the way in which
the trial court weighed the R.C. 2929.11 and 2929.12 factors and applied these
factors in crafting an appropriate sentence. See State v. Nelson, 8th Dist. Cuyahoga
No. 106858, 2019-Ohio-530, ¶ 25, citing State v. Mock, 8th Dist. Cuyahoga No.
105060, 2017-Ohio-8866, ¶ 21.
For all of the foregoing reasons, appellant’s fourth assignment of
error is overruled. The trial court did not err in imposing consecutive sentences, and
the trial court’s sentence is not contrary to law.
III. Conclusion
After thoroughly reviewing the record, we affirm the trial court’s
judgment. Appellant’s rape and gross sexual imposition convictions were supported
by sufficient evidence and are not against the manifest weight of the evidence. The
trial court did not abuse its discretion in denying defense counsel’s motion for a
mistrial. The trial court did not err in imposing consecutive sentences, and the trial
court’s sentence is not contrary to law.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
convictions having been affirmed, any bail pending 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.
FRANK D. CELEBREZZE, JR., JUDGE
ANITA LASTER MAYS, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR