M ORE L AW
LEXAPEDIA
Salus Populi Suprema Lex Esto

Information
About MoreLaw
Contact MoreLaw

Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.

Help support the publication of case reports on MoreLaw

Date: 03-24-2019

Case Style:

STATE OF OHIO - vs - HOWARD D. SHANNON

Case Number: 2017-L-092

Judge: COLLEEN MARY O’TOOLE

Court: COURT OF APPEALS ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO

Plaintiff's Attorney: Charles E. Coulson, Lake County Prosecutor, Karen A. Sheppert, Assistant Prosecutor, and Jacqueline O’Donnell, Assistant Prosecuting Attorney

Defendant's Attorney: Edward Heindel

Description:





On May 23, 2016, appellant was indicted by the Lake County Grand Jury
on 16 counts: counts one through 12 involve Victim No. 1 (A.F.) – counts one and two,
rape, felonies of the first degree, in violation of R.C. 2907.02(A)(2); counts three through
10, rape, felonies of the first degree, in violation of R.C. 2907.02(A)(1)(b); count 11,
gross sexual imposition, a felony of the third degree, in violation of R.C. 2907.05(A)(4);
and count 12, corrupting another with drugs, a felony of the fourth degree, in violation of
R.C. 2925.02(A)(4)(a); counts 13 through 15 involve Victim No. 2 (D.S.) – count 13,
gross sexual imposition, a felony of the fourth degree, in violation of R.C. 2907.05(A)(1);
count 14, gross sexual imposition, a felony of the third degree, in violation of R.C.
2907.05(A)(4); and count 15, attempted rape, a felony of the second degree, in violation
of R.C. 2923.02 and 2907.02(A)(2); and count 16 involves Victim No. 3 (D.S.I.) - gross
sexual imposition, a felony of the third degree, in violation of R.C. 2907.05(A)(4).1
Appellant pleaded not guilty to all charges at his arraignment.
{¶3} Motion practice ensued, including: appellant’s July 15, 2016 motion for
severance; appellant’s August 2, 2016 motion to suppress; appellant’s August 30, 2016
motion to continue the suppression hearing; appellant’s December 23, 2016 90-day
speedy trial waiver; and appellant’s February 28, 2017 motion to continue the trial.
{¶4} A suppression hearing was held on September 23, 2016. Officer Douglas
Covert with the Madison Village Police Department (“MVPD”) testified for appellee, the
state of Ohio. On April 28, 2016, A.F. reported a sexual assault by appellant, her step
father. A.F. was 14 years old at the time of the incident. She claimed that the sexual 1. A.F. is referred to as “L.F.” in appellant’s brief.
3
assault occurred two days earlier on April 26, 2016. She alleged vaginal intercourse in
appellant’s bedroom. A.F. reported that appellant ejaculated inside her and that she
was menstruating at the time. The police directed A.F. to get examined by a SANE
nurse.
{¶5} Officer Covert contacted the Lake County prosecutor’s office to obtain a
search warrant for appellant’s residence, 34 West Main Street Up, Madison Village,
Lake County, Ohio. The warrant was obtained on April 28, 2016, the same day the
incident was reported. The warrant called for all bedding, towels, or clothing found in
proximity to A.F.’s bedroom, appellant’s bedroom, and any drugs or illegal narcotics
found in the residence.
{¶6} Officer Covert went to Hillcrest Hospital to interview appellant’s wife,
Corinna Shannon, and her daughter, A.F., while the search was simultaneously taking
place at the residence. At the hospital, A.F. described the clothing that she was
wearing to the searching officers during a phone conversation. As a result, the police
collected a pair of gray sweat pants, a pair of leggings, two pair of underwear, some
sanitary pads, and a smoking pipe. Cuttings for the bed sheet, underwear, and a
sanitary pad all tested positive for appellant’s semen.
{¶7} Following the hearing, the trial court denied appellant’s motion to
suppress.
{¶8} The trial court also heard arguments on appellant’s motion for severance
in which he requested separate trials for the three victims. On March 3, 2017, the court
overruled the motion. The court found that the charges in the indictment were properly
joined under Crim.R. 8 and that the evidence of each of the acts that would constitute
4
the commission of the offenses is simple and distinct and, therefore, severance is not
required.
{¶9} A jury trial commenced on June 19, 2017.
{¶10} The state presented 56 exhibits and testimony from 18 witnesses: (1)
Officer Douglas Covert, with MVPD; (2) Assistant Chief Troy McIntosh, with MVPD; (3)
Christi LaPrairie, a registered nurse with Hillcrest Hospital; (4) Karen Zavarella, Ph.D., a
DNA analyst with Lake County Crime Laboratory (“LCCL”); (5) Elizabeth Gunsalus, a
social worker experienced in child sexual abuse; (6) Dr. Martha Wright, a licensed
medical doctor; (7) Lauren McAliley, a retired pediatric nurse practitioner in child
advocacy and protection; (8) Kimberly Gilson, a forensic analyst with LCCL; (9) Douglas
Rohde, supervisor of chemistry and toxicology with LCCL; (10) Patrolman Ronald Hess,
with Madison Township Police Department (“MTPD”); (11) Corinna Shannon,
appellant’s wife and A.F.’s mother; (12) A.F., Victim No. 1; (13) Stephen LaBonne,
Ph.D., a forensic analyst with LCCL; (14) Officer Ian Mussell, with MVPD and with City
of Cleveland Division of Police; (15) D.S., Victim No. 2; (16) D.S.I. Victim No. 3; (17)
Sergeant Robert Izzo, with Lake County Sheriff’s Office; and (18) Detective Timothy
John Doyle, with MTPD.
{¶11} Regarding A.F., d.o.b. March 23, 2002, it was revealed that appellant had
been sexually abusing her over the years beginning when she was about four or five
years old. The abuse progressed from touching and partial penetration with appellant’s
penis to fellatio and full vaginal and anal intercourse. The abuse occurred in various
places over a span of a decade, mainly in the residences where the family lived. A.F.
5
made several disclosures over the years. A.F. recanted one disclosure at the age of ten
after appellant had threatened her.
{¶12} When A.F. was four or five years old, the family lived in a gray house in
Geneva. Appellant asked A.F. to play a “game.” Appellant instructed A.F. to take off
her clothes and get on the bed. He proceeded to touch her all over. A.F. told her
mother, who had nothing to say and brushed it off as probably a “dream.”
{¶13} When the family lived in a blue house, A.F. shared a bedroom with D.S.,
appellant’s biological daughter by another mother. Appellant inserted his penis a “little
bit” while A.F. laid on her back on D.S.’s bed. Appellant instructed A.F. to count to ten,
then push him off. This happened often and increased with time.
{¶14} When A.F. was around six years old, appellant gave her a cigarette to
smoke in exchange for vaginal intercourse. A.F. recalled experiencing pain afterward
and remembered her vaginal area burned when she urinated.
{¶15} When A.F. was around seven and eight years old, appellant demanded
A.F. play the “ABC” game with him before she could go outside to play. The ABC game
consisted of A.F. lying on her back and engaging in intercourse with appellant, A.F.
giving appellant a blow job, or A.F. getting on her stomach or side and engaging in
intercourse with appellant. A.F. also recalled appellant taking her to vacant apartments
where he would lay her on the floor and engage in vaginal intercourse. A.F.
remembered wiping blood from her vagina after sex and the burning sensation when
she urinated.
{¶16} When A.F. was ten years old, her mother discovered that she was
conversing with an older man online regarding sexually-explicit material. Corinna talked
6
with her daughter about respecting her virginity. A.F. disclosed that she had not been a
virgin since she was around five years old, when appellant began having sex with her.
Corinna immediately took her daughter to the hospital. Dr. Wright performed a physical
examination on A.F. and found a “notch” on her vaginal opening. A.F.’s vaginal tissues
were inflamed, red, and irritated. Although the notch was concerning and suspicious, it
was not conclusive of sexual abuse. Corinna brought A.F. to the Care Clinic for a
follow-up examination but the appointment was canceled and reset for three months
later. At the follow-up, Corinna demanded that she be present during the appointment.
A.F.’s physical findings were normal at that time.
{¶17} Lake County Job and Family Services became involved due to A.F.’s
allegations regarding sexual abuse by appellant. A.F. and her siblings were removed
from their home for a time period and lived at their grandmother’s house. Appellant told
A.F. that if she did not tell her mother and grandmother that the sexual abuse did not
happen, he would make her life “hell.” When the case was scheduled for adjudication in
juvenile court, A.F. recanted.
{¶18} During the investigation, A.F. made drawings in which she drew bumps on
a picture of appellant’s penis. She described the bumps as flesh-colored. During an
interview with appellant, an officer observed flesh-colored bumps near the base of
appellant’s penis. The 2013 rape kit at that time was negative for seminal fluids.
However, the kit was later resubmitted due to advancements in Y-STR testing. The
results proved that the DNA from the vaginal swab and swab from A.F.’s panties was
consistent with appellant’s Y-STR within a probability of 1 in 6,700 unrelated males.
Forensic analyst Dr. LaBonne opined that “the evidence strongly, strongly supports the
7
hypothesis that [the DNA] came either from the same male or from another male related
in the direct male line[.]” (Jury Trial T.p. 1197).
{¶19} When A.F. was around ten, 11, and 12 years old and living in Madison,
appellant requested she perform oral sex on him. It happened more times than she
could remember and occurred in different rooms throughout the house. Fellatio was
requested of A.F. less often than vaginal intercourse and more often than anal
intercourse. A specific incident was also revealed when appellant had vaginal
intercourse with A.F. in her room and he ejaculated in a towel.
{¶20} When A.F. was around 13 years old, she recalled how appellant would
penetrate her fully with his penis. During one incident, appellant was on the floor, she
was on top of him, there was blood, and she was hospitalized. A.F. recalled another
incident when her sister walked in on A.F. and appellant having sex and they hid behind
the living room loveseat. A.F. later told her sister that she and appellant were “catching
a jumping spider.”
{¶21} A week prior to the April 26, 2016 incident, while A.F.’s mother and sisters
were at church, A.F. asked appellant for a cigarette. Appellant had intercourse with A.F.
while he bent her over the loveseat in the living room and in the bathroom while A.F.
was kneeling on all fours. Anal intercourse was more painful than vaginal intercourse
for A.F.
{¶22} On April 26, 2016, A.F. was home from school because she had cramps.
A.F. asked appellant for a cigarette and he requested sex. She refused him several
times explaining that she was on her period. However, appellant insisted. Appellant
had vaginal intercourse with A.F. on his bed. A.F. was wearing zebra print underwear.
8
Appellant ejaculated inside of her. After intercourse, A.F. went to the bathroom,
wrapped up her sanitary pad, and put it in the garbage, which ended up in the
receptacle behind the apartment building.
{¶23} Later that evening, A.F. disclosed to her mother, as she had previously,
that appellant had been sexually abusing her since the age of four or five. The following
day, Corinna notified the police. Corinna left the residence with the three girls, A.F.,
D.S., and D.S.I. After making a statement to the police, A.F. was taken to Hillcrest
Hospital where a rape kit was collected. Corinna indicated she was struck by A.F.’s
description of appellant during ejaculation, with him moving around like he was having a
seizure.
{¶24} During her medical examination, A.F. identified appellant as the
perpetrator. A.F. described the sexual abuse beginning when she was around four or
five years old. A.F. explained the abuse began with appellant rubbing his hand against
her genitalia, followed by oral contact and penal insertion. She described some
penetration with bleeding and pain. Full penetration took place when A.F. was around
12.
{¶25} On April 28, 2016, MVPD obtained a search warrant authorizing them to
seize, among other things, A.F.’s clothing, bed sheets, and items from the trash. LCCL
members assisted MVPD by collecting evidence from the family residence. DNA
analyst Dr. Zavarella obtained a pair of girl’s zebra print black and white underwear from
the laundry basket in the family’s only bathroom. Dr. Zavarella also obtained a sanitary
pad which was wrapped around itself and sealed in plastic in a trash receptacle outside
of the family’s apartment. Both the underwear and sanitary pad tested positive for
9
sperm and seminal fluid. Further DNA testing revealed appellant’s and A.F.’s DNA on
the crotch area of the underwear and on the sanitary pad. Cuttings from the bed sheet
also tested positive for A.F. and appellant’s DNA and appellant’s sperm. Other clothing
collected, including gray sweatpants and leggings, contained no evidence of seminal
fluids. And none of appellant’s DNA or seminal fluid was detected from A.F.’s rape kit.
However, Dr. Zavarella indicated that finding was not unexpected as A.F.’s vaginal
cavity, during menstruation, was in a state of flushing away cells.
{¶26} Shortly after execution of the search warrant, appellant was arrested.
Later that evening, MVPD was searching for A.F., who had threatened suicide because
her mother had chosen appellant over her. MVPD located and took A.F. to the hospital
over Corinna’s objections. A.F. disclosed abuse in the past and how her mother was
unsupportive.
{¶27} Regarding D.S., she recalled that when she was four years old, appellant
climbed on top of her and touched her vaginal area. D.S. recalled another occasion
when she was about 12 years old and that appellant touched her vagina while she was
lying in bed.
{¶28} Regarding D.S.I. she recalled that when she was around 11 years old,
appellant gave her beer. D.S.I. got drunk and vomited. Appellant told D.S.I. that she
had to prove herself before she could do whatever she wanted. Appellant required that
D.S.I. sit still while he touched her vagina with his hands. After that incident, D.S.I.
indicated that appellant had no more rules for her.
{¶29} At the close of the state’s case, defense counsel moved for an acquittal
pursuant to Crim.R. 29, which was overruled by the trial court.
10
{¶30} Appellant presented 10 exhibits and testimony from two witnesses: (1)
Sandra Chadwick, Corinna Shannon’s mother; and (2) Corinna Shannon.
{¶31} Corinna testified that she had purchased a pregnancy test for A.F. but not
because A.F. indicated to her that she was having sex with appellant. Corinna’s
mother, Sandra, testified that A.F. never disclosed to her any allegations of sexual
abuse by appellant. Sandra also opined that A.F. does not have a reputation for
truthfulness.
{¶32} At the conclusion of all the evidence, appellant renewed his Crim.R. 29
motion, which was overruled by the trial court.
{¶33} The state dismissed two counts, counts four and 15, and the indictment
was renumbered. The jury found appellant not guilty of one count, formerly count 12.
The jury found appellant guilty of the remaining 13 counts.
{¶34} On July 18, 2017, the trial court sentenced appellant to a minimum prison
term of 76 years and a maximum of life imprisonment. Appellant filed a timely appeal
and asserts the following six assignments of error:
{¶35} “[1.] The trial court erred when it denied Shannon’s motion to suppress
gray sweat pants, a pair of leggings, and black and white underwear that were seized at
his residence.
{¶36} “[2.] The trial court erred when it did not grant Shannon’s motion for
severance of the counts involving the three different alleged victims.
{¶37} “[3.] Shannon was denied his constitutional and statutory rights to a
speedy trial.
{¶38} “[4.] The convictions were against the manifest weight of the evidence.
11
{¶39} “[5.] There was insufficient evidence against Shannon.
{¶40} “[6.] Shannon was denied his right to the effective assistance of counsel in
violation of the Sixth Amendment and Article I, Section 10 of the Ohio Constitution.”
{¶41} In his first assignment of error, appellant argues the trial court erred in
denying his motion to suppress gray sweat pants, a pair of leggings, and black and
white underwear that were seized at his residence. Appellant maintains the foregoing
items were outside of the particular description in the search warrant and based upon
the telephone conversation. He claims the police should have obtained a second
search warrant before they removed these items.
{¶42} “Appellate review of a trial court’s ruling on a motion to suppress presents
a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio
5372, ¶8. ‘An appellate court reviewing a motion to suppress is bound to accept the
trial court’s findings of fact where they are supported by competent, credible evidence.’
State v. Warner, 11th Dist. Portage No. 2013-P-0056, 2014-Ohio-1874, ¶20. Accepting
the facts as true, the reviewing court independently determines, as a matter of law and
without deference to the trial court’s determination, whether its conclusion was
consistent with the applicable legal standard. Id.” State v. Nasca, 11th Dist. Ashtabula
No. 2016-A-0026, 2016-Ohio-8223, ¶16.
{¶43} The Fourth Amendment provides that “no Warrants shall issue, but upon
probable cause, supported by oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.” “The manifest purpose of this
particularity requirement was to prevent general searches. * * * [T]he requirement
ensures that the search will be carefully tailored to its justifications, and will not take on
12
the character of the wide-ranging exploratory searches the Framers intended to
prohibit.” Maryland v. Garrison, 480 U.S. 79 (1987). By requiring a particular
description of the items to be seized, the Fourth Amendment “prevents the seizure of
one thing under a warrant describing another. As to what is to be taken, nothing is left
to the discretion of the officer executing the warrant.” Marron v. United States, 275 U.S.
192, 196 (1927).
{¶44} Crim.R. 41(C) does not require that the items to be seized be described
with particularity. That rule provides: “the affidavit shall name or describe the person to
be searched or particularly describe the place to be searched, name or describe the
property to be searched for and seized * * *.” Thus, a general description in the affidavit
of the items to be seized would satisfy the rule.
{¶45} In this case, the affidavit attached to the request for the search warrant
informed the judge that A.F. had made a disclosure in 2012 that her step-father,
appellant, had been having sex with her since she was five years old; that subsequent
medical examinations and DNA testing on A.F.’s vaginal swabs demonstrated that A.F.
had a notch in her vaginal area and the Y-STR profile obtained from A.F.’s vaginal
swabs was consistent with appellant’s cheek swab standard; appellant had furnished
drugs to A.F. which caused her to pass out, and when she awoke, she believed she had
been sexually assaulted by appellant; on April 28, 2016, A.F., along with her mother,
Corinna, went to MVPD where A.F. made statements regarding sexual activity of a
continuous nature with appellant; and A.F. revealed that the most recent incident
occurred on April 26, 2016 when appellant ejaculated inside her vaginal cavity.
13
{¶46} Based on the foregoing, the judge found probable cause to issue a search
warrant on April 28, 2016, authorizing the search of, among other things, A.F.’s clothing
from the Shannon residence, which includes A.F.’s gray sweat pants and a pair of her
leggings (found in her sibling’s bedroom), and A.F.’s black and white zebra print
underwear (found in the family’s shared bathroom). In addition, the record establishes
that A.F. and her mother, both residents of the Shannon home, gave consent for the
removal of A.F.’s clothing, including the items in which appellant takes issue. See State
v. Hatcher, 11th Dist. Ashtabula No. 2002-A-0100, 2004-Ohio-2451, ¶15.
{¶47} Thus, because there was probable cause to believe that evidence of
appellant’s DNA in the form of semen or sperm may appear on A.F.’s clothing, the
search warrant authorized the seizure of A.F.’s clothing, and the police had consent to
remove the items, we find the trial court committed no error.
{¶48} Appellant’s first assignment of error is without merit.
{¶49} In his second assignment of error, appellant contends the trial court erred
in denying his motion to sever the counts of his indictment into three separate trials
based on the three separate victims.
{¶50} This court generally reviews a trial court’s decision to grant or deny
separate trials under an abuse of discretion standard. State v. Brunelle-Apley, 11th
Dist. Lake No. 2008-L-014, 2008-Ohio-6412, ¶108. The term “abuse of discretion” is
one of art, connoting judgment exercised by a court which neither comports with reason,
nor the record. State v. Ferranto, 112 Ohio St. 667, 676-678 (1925). An abuse of
discretion may be found when the trial court “applies the wrong legal standard,
14
misapplies the correct legal standard, or relies on clearly erroneous findings of fact.”
Thomas v. Cleveland, 176 Ohio App.3d 401, 2008-Ohio-1720, ¶15 (8th Dist.)
{¶51} However, in this case, appellant failed to renew his motion for relief from
prejudicial joinder at the conclusion of the state’s case or at the conclusion of the
evidence. Therefore, in such circumstances, it is the position of this court, as well as
other districts, that appellant has waived all but plain error. State v. Jackson, 11th Dist.
Lake No. 2017-L-140, 2018-Ohio-3241, ¶22; State v. Appenzeller, 11th Dist. Lake No.
2006-L-258, 2008-Ohio-7005, ¶75; State v. Howard, 3d Dist.Marion No. 9-10-50, 2011
Ohio-3524, ¶82, citing State v. Miller, 105 Ohio App.3d 679 (4th Dist.1995); State v.
Lott, 51 Ohio St.3d 160 (1990); State v. Clark, 2d Dist. No. 1078 (May 21, 1980); State
v. Ruffin, 6th Dist. No. L-93-347 (Oct. 28, 1994), citing State v. Owens, 51 Ohio App.2d
132 (9th Dist.1975); State v. DiCarlo, 7th Dist. No. 02 CA 228, 2004-Ohio-5118, citing
State v. Boyd, 8th Dist. Nos. 82921, 82922, 82923, 2004-Ohio-368; ¶18, State v.
Williams, 10th Dist. Nos. 02AP-730, 02AP-731, 2003-Ohio-5204; but see State v. Miller,
5th Dist. No.2003CA00273, 2004-Ohio-3716, fn.1 (addressing the case on the merits
rather than applying waiver). “Plain error exists only where the results of the trial would
have been different without the error.” Id. at ¶76.
{¶52} Crim.R. 8(A), Joinder of Offenses, states in part: “Two or more offenses
may be charged in the same indictment, information or complaint in a separate count for
each offense if the offenses charged, whether felonies or misdemeanors or both, are of
the same or similar character * * *.”
{¶53} The law favors joinder of multiple offenses and such joinder is liberally
permitted if the offenses are of the same or similar character. Brunelle-Apley, supra, at
15
¶104-105. “‘When a defendant claims that joinder is improper, he must affirmatively
show that his rights have been prejudiced.’” Id. at ¶107, quoting Crim.R. 14; State v.
Quinones, 11th Dist. Lake No. 2003-L-015, 2005-Ohio-6576, ¶38; State v. Roberts, 62
Ohio St.2d 170, 175 (1980).
{¶54} In the case sub judice, appellant fails to affirmatively demonstrate that his
rights were prejudiced as the result of the trial would not have been different without the
alleged error. There were three victims in this case. While they were all related, the
sexual conduct involving A.F. was greatly different from that involving her sisters, D.S.
and D.S.I. As established, A.F.’s victimization was ongoing over a long period of time
and involved fellatio, vaginal intercourse, and anal intercourse. The victimization of D.S.
and D.S.I. on the other hand, was much more limited and only involved touching. The
evidence presented by the state was simple and distinct and allowed the jury to
segregate the proof for each charge. See State v. Campbell, 11th Dist. Lake No. 2004
L-126, 2005-Ohio-6147, *5 (holding that because the facts of each alleged crime were
separate and easy to understand, the crimes involved different victims, different facts,
and occurred at different times, the evidence was simple and distinct and the trial court
did not err in denying the appellant’s motion to sever).
{¶55} Based on the facts presented, the trial court did not commit plain error in
denying appellant’s motion to sever.
{¶56} Appellant’s second assignment of error is without merit.
{¶57} In his third assignment of error, appellant alleges he was denied his
constitutional and statutory rights to a speedy trial.
16
{¶58} In his sixth assignment of error, appellant contends he was denied his
right to the effective assistance of counsel.
{¶59} For ease of discussion, because appellant claims that his speedy trial
rights were violated and his counsel was ineffective for failing to file a motion to dismiss
based on a statutory and constitutional speedy trial violation, we will address his third
and sixth assignments of error in a consolidated fashion.
{¶60} “The Sixth Amendment to the United States Constitution and Article I,
Section 10 of Ohio’s Constitution guarantee a criminal defendant the right to a speedy
trial. That right is implemented in Ohio by statutes imposing specific time limits. See
State v. Pachay, 64 Ohio St.2d 218, 221 (1980). R.C. 2945.71(C)(2) and (E) require the
state to bring a felony defendant to trial within 270 days of arrest or within 90 days if the
accused is held in jail in lieu of bail solely on the pending charge. This time may be
tolled under certain circumstances, as outlined in R.C. 2945.72.” State v. Jack, 11th
Dist. Geauga No. 2016-G-0057, 2016-Ohio-8424, ¶16.
{¶61} “The accused bears the burden of putting forth prima facie evidence that
his statutory speedy trial rights have been violated.” State v. Lynch, 11th Dist.
Ashtabula No. 2013-A-0039, 2014-Ohio-1775, ¶14, citing State v. Butcher, 27 Ohio
St.3d 28, 30-31 (1986).
{¶62} “The Sixth and Fourteenth Amendments to the United States Constitution
guarantee that criminal defendants must be afforded the right to the assistance of
counsel before they can be validly convicted and punished by imprisonment. State v.
Victor, 11th Dist. Geauga Nos. 2014-G-3220 and 2014-G-3241, 2015-Ohio-5520, ¶18,
quoting Village of Highland Hills v. Nicholson, 8th Dist. Cuyahoga No. 100577, 2014
17
Ohio-4671, ¶11, citing Powell v. Alabama, 287 U.S. 45 (1932); Gideon v. Wainwright,
372 U.S. 335 (1963). Implicit in the right to counsel is the right to competent counsel.
‘An attorney has a duty to zealously represent a criminal defendant.’ State v. Henry,
11th Dist. Lake No. 2007-L-142, 2009-Ohio-1138, at ¶59.
{¶63} “‘“In order to prevail on an ineffective assistance of counsel claim, a
petitioner must satisfy the two-prong test set forth in Strickland v. Washington (1984),
466 U.S. 668 (* * *) (* * *). (* * *) Thus, appellant must show that counsel’s performance
was deficient and ‘must also show prejudice resulting from the deficient performance.’”’
(Citations omitted.) State v. Kirschenmann, 11th Dist. Portage Nos. 2014-P-0031 and
2014-P-0032, 2015-Ohio-3544, ¶16. See Henry, supra, at ¶50-59; State v. Peoples,
11th Dist. Lake No. 2005-L-158, 2010-Ohio-2523, ¶17–30.” State v. Smith, 11th Dist.
Trumbull No. 2015-T-0079, 2016-Ohio-7153, ¶17-18.
{¶64} In the instant matter, because appellant never raised a speedy trial issue
before the trial court, the record, therefore, is insufficient to show trial counsel was
deficient by failing to file a motion to dismiss. Lynch, supra, at ¶15. In any event, we
note that appellant was arrested on May 11, 2016 and the trial commenced on June 19,
2017 but his speedy trial rights were not violated as there were major tolling events that
occurred between those dates: July 15, 2016 motion for severance; August 2, 2016
motion to suppress; August 30, 2016 motion to continue suppression hearing;
December 23, 2016 waiver of time (90 days); February 28, 2017 motion to continue
trial; March 2, 2017 suppression denied; and March 3, 2017 severance denied.
{¶65} Consequently, although appellant failed to raise a speedy trial issue
before the trial court, appellant’s case was tried within the 90 days allotted as a result of
18
the major tolling events. Appellant has not articulated any prejudice. Since appellant’s
constitutional and statutory speedy trial rights were not violated, his counsel cannot
have been ineffective.
{¶66} Appellant’s third and sixth assignments of error are without merit.
{¶67} In his fourth assignment of error, appellant maintains his convictions were
against the manifest weight of the evidence.
{¶68} In his fifth assignment of error, appellant argues there was insufficient
evidence against him.
{¶69} Because appellant’s fourth and fifth assignments of error are interrelated,
we will address them together.
{¶70} With regard to sufficiency, in State v. Bridgeman, 55 Ohio St.2d 261
(1978), the Supreme Court of Ohio established the test for determining whether a
Crim.R. 29 motion for acquittal is properly denied. The Court stated that “[p]ursuant to
Crim.R. 29(A), a court shall not order an entry of judgment of acquittal if the evidence is
such that reasonable minds can reach different conclusions as to whether each material
element of a crime has been proved beyond a reasonable doubt.” Id. at syllabus.
“Thus, when an appellant makes a Crim.R. 29 motion, he or she is challenging the
sufficiency of the evidence introduced by the state.” State v. Patrick, 11th Dist. Trumbull
Nos. 2003-T-0166 and 2003-T-0167, 2004-Ohio-6688, ¶18.
{¶71} As this court stated in State v. Schlee, 11th Dist. Lake No. 93-L-082, 1994
WL 738452, *4-5 (Dec. 23, 1994):
19
{¶72} “‘Sufficiency’ challenges whether the prosecution has presented evidence
on each element of the offense to allow the matter to go to the jury, while ‘manifest
weight’ contests the believability of the evidence presented.
{¶73} “‘“The test (for sufficiency of the evidence) is whether after viewing the
probative evidence and the inference[s] drawn therefrom in the light most favorable to
the prosecution, any rational trier of fact could have found all of the elements of the
offense beyond a reasonable doubt. The claim of insufficient evidence invokes an
inquiry about due process. It raises a question of law, the resolution of which does not
allow the court to weigh the evidence.”
{¶74} “In other words, the standard to be applied on a question concerning
sufficiency is: when viewing the evidence ‘in a light most favorable to the prosecution,’
‘(a) reviewing court (should) not reverse a [guilty] verdict where there is substantial
evidence upon which the jury could reasonably conclude that all of the elements of an
offense have been proven beyond a reasonable doubt.’” * * *
{¶75} “On the other hand, ‘manifest weight’ requires a review of the weight of the
evidence presented, not whether the state has offered sufficient evidence on each
element of the offense.
{¶76} “‘In determining whether the verdict was against the manifest weight of the
evidence, “(* * *) the court reviewing the entire record, weighs the evidence and all
reasonable inferences, considers the credibility of witnesses and determines whether in
resolving conflicts in the evidence, the jury clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be reversed and a new trial
ordered. (* * *)’” (Citations omitted.) * * *” (Emphasis sic.) (Citations omitted.)
20
{¶77} Regarding sufficiency, “a reviewing court must look to the evidence
presented * * * to assess whether the state offered evidence on each statutory element
of the offense, so that a rational trier of fact may infer that the offense was committed
beyond a reasonable doubt.” State v. March, 11th Dist. Lake No. 98-L-065, 1999 WL
535675, *3 (July 16, 1999). The evidence is to be viewed in a light most favorable to
the prosecution when conducting this inquiry. State v. Jenks, 61 Ohio St.3d 259,
paragraph two of the syllabus (1991), superseded by state constitutional amendment on
other grounds as stated in State v. Smith, 80 Ohio St.3d 89 (1997). Further, the verdict
will not be disturbed on appeal unless the reviewing court finds that reasonable minds
could not have arrived at the conclusion reached by the trier of fact. State v. Dennis, 79
Ohio St.3d 421, 430 (1997).
{¶78} Regarding manifest weight, a judgment of a trial court should be reversed
“‘only in the exceptional case in which the evidence weighs heavily against the
conviction.’” State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). The trier of fact is in
the best position to assess the credibility of witnesses. State v. DeHass, 10 Ohio St.2d
230, paragraph one of the syllabus (1967).
{¶79} “[C]ircumstantial evidence and direct evidence inherently possess the
same probative value.” State v. Fasline, 11th Dist. Trumbull No. 2014-T-0004, 2015
Ohio-715, ¶39, citing State v. Biros, 78 Ohio St.3d 426, 447 (1997), citing Jenks, supra,
paragraph one of the syllabus.
{¶80} “A finding that a judgment is not against the manifest weight of the
evidence necessarily means the judgment is supported by sufficient evidence.”
Patterson v. Godale, 11th Dist. Lake Nos. 2014-L-034 and 2014-L-042, 2014-Ohio
21
5615, ¶23, citing State v. Arcaro, 11th Dist. Ashtabula No. 2012-A-0028, 2013-Ohio
1842, ¶32 (“‘Since there must be sufficient evidence to take a case to the jury, it follows
that “a finding that a conviction is supported by the weight of the evidence necessarily
must include a finding of sufficiency.”’” (Emphasis sic.) (Citations omitted.))
{¶81} For the reasons addressed below, we determine the judgment is not
against the manifest weight of the evidence and, thus, further conclude it is supported
by sufficient evidence.
{¶82} Appellant was convicted of nine counts of rape involving A.F. and takes
issue with the guilty findings for “Rape,” in violation of R.C. 2907.02(A)(1)(b) and (2),
which provide:
{¶83} “(A)(1) No person shall engage in sexual conduct with another who is not
the spouse of the offender or who is the spouse of the offender but is living separate
and apart from the offender, when any of the following applies:
{¶84} “* * *
{¶85} “(b) The other person is less than thirteen years of age, whether or not the
offender knows the age of the other person.
{¶86} “* * *
{¶87} “(2) No person shall engage in sexual conduct with another when the
offender purposely compels the other person to submit by force or threat of force.”
{¶88} Regarding R.C. 2907.02(A)(1)(b), the evidence reveals that appellant
began sexually abusing A.F. from the time she was about four or five years old. This
abuse took place over a span of a decade. A.F.’s ages throughout the abuse were
22
proved with testimony of her school grades and supported by school photographs and
photographs of the residences where she was living during specified dates.
{¶89} Regarding R.C. 2907.02(A)(2), “‘Sexual conduct’ means 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.” R.C. 2907.01(A).
{¶90} “A victim need not prove physical resistance[.]” R.C. 2907.02(C).
{¶91} Appellant, A.F.’s step-father and resident of the same household, was her
father figure and had parental authority over her, thus, force need not be physical or
overt. See State v. Eskridge, 38 Ohio St.3d 56, 58-59 (1988) (“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. * * * Sexual activity between a parent and a minor child is not
comparable to sexual activity between two adults with a history of consensual
intercourse. 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.”)
{¶92} As addressed, the rapes of A.F. were supported by physical evidence and
corroborated by witness testimony.
23
{¶93} Appellant was also convicted of gross sexual imposition regarding A.F.,
D.S., and D.S.I. and takes issue with the guilty findings for “Gross sexual imposition,” in
violation of R.C. 2907.05(A)(1) and (4), which state:
{¶94} “(A) No person shall have sexual contact with another, not the spouse of
the offender; cause another, not the spouse of the offender, to have sexual contact with
the offender; or cause two or more other persons to have sexual contact when any of
the following applies:
{¶95} “(1) The offender purposely compels the other person, or one of the other
persons, to submit by force or threat of force.
{¶96} “* * *
{¶97} “(4) The other person, or one of the other persons, is less than thirteen
years of age, whether or not the offender knows the age of that person.”
{¶98} “‘Sexual contact’ means 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.” R.C.
2907.01(B).
{¶99} Venue was established in this case by the victims’ birthdates, grades in
school, and their home addresses, which were verified by the testimony of Detective
Doyle with MTPD. The jury heard the testimony of and observed the demeanor of all
three victims, A.F., D.S., and D.S.I. referencing the sexual contact by appellant. As
stated, the jury heard in detail the sexual abuse that A.F. endured over the span of a
decade, involving sexual contact and sexual conduct by appellant. D.S. recalled
appellant touching her vaginal area when she was four and 12 years old. D.S.I. also
24
recalled appellant touching her vagina when she was around 11 years old. See State v.
Breland, 11th Dist. Ashtabula No. 2003-A-0066, 2004-Ohio-7238, ¶24 (“‘It is sufficient to
present circumstantial evidence from which the finder of fact can infer the purpose of
the act was for sexual gratification; no direct evidence of the accused’s mental state is
required.’”)
{¶100} Pursuant to Schlee, supra, there is sufficient evidence upon which the
jury could reasonably conclude beyond a reasonable doubt that the elements of rape
and gross sexual imposition were proven. Thus, the trial court did not err in overruling
appellant’s Crim.R. 29 motion.
{¶101} In addition, the jury chose to believe the state’s witnesses. DeHass,
supra, at paragraph one of the syllabus. Based on the evidence presented, we cannot
say that the jury clearly lost its way in finding appellant guilty of rape and gross sexual
imposition. Schlee, supra, at *4-5; Thompkins, supra, at 387.
{¶102} Appellant’s fourth and fifth assignments of error are without merit.

Outcome: For the foregoing reasons, appellant’s assignments of error are not well
taken. The judgment of the Lake County Court of Common Pleas is affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments:



 
 
Home | Add Attorney | Add Expert | Add Court Reporter | Sign In
Find-A-Lawyer By City | Find-A-Lawyer By State and City | Articles | Recent Lawyer Listings
Verdict Corrections | Link Errors | Advertising | Editor | Privacy Statement
© 1996-2019 MoreLaw, Inc. - All rights reserved.