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State v. Ellis

December 4, 2008

STATE OF OHIO PLAINTIFF-APPELLEE
v.
WILLIAM ELLIS DEFENDANT-APPELLANT



Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-495646, JUDGMENT: AFFIRMED.

The opinion of the court was delivered by: Mary Eileen Kilbane, J.

JOURNAL ENTRY AND OPINION

BEFORE: Kilbane, J., Calabrese, P.J., and Blackmon, J.

{¶1} Defendant-appellant, William Ellis (Ellis), appeals his conviction for gross sexual imposition, felonious assault, and kidnapping. After reviewing the parties' arguments and pertinent case law, we affirm.

{¶2} On June 18, 2007, a Cuyahoga County Grand Jury indicted Ellis with the following: one count of rape, two counts of gross sexual imposition, two counts of felonious assault, and two counts of kidnapping with sexual motivation specifications attached.

{¶3} The facts giving rise to the instant case occurred between Ellis and A.T.*fn1 on July 2, 2006. As a preliminary matter, however, the following facts were established at trial. Ellis and A.T. met for the first time through Ellis' cousin, Tonae Martin (Martin) on June 29, 2006. That evening, they went to a bar together. A.T. had recently moved in with Martin, who lived at 2440 East 35th Street, Cleveland, Ohio.

{¶4} After the bar closed, the three returned to Martin's home. Martin went to sleep but was awakened by a loud noise. Martin opened the door to her son's room and found Ellis and A.T. on her son's bed watching television, Ellis was lying down and A.T. was sitting up. The bed had broken. Ellis was wearing a shirt and was otherwise under the covers, and A.T. was wearing a bra and underwear.

{¶5} Thereafter, on July 2, 2006, at approximately 11:00 a.m., Ellis, knowing that Martin would not be home, went back to Martin's to collect his audio compact discs (CDs). A.T. was home cleaning the second floor bathroom at the time. A.T. gave Ellis his CDs, but Ellis did not leave.

{¶6} Ellis offered A.T. marijuana, which she declined. A.T. went downstairs, and Ellis followed. Ellis told A.T. that she looked good and that he wanted a kiss before he left. A.T. told Ellis that she did not want to kiss him and that she did not like him. Ellis tightly grabbed the drawstrings of A.T.'s pants and backed her into a corner. A.T. cut herself free of the drawstrings with a knife and attempted to get away. Ellis told her to take her clothes off and pulled A.T. towards him. Ellis forced her to sit on his lap and grabbed her by the throat, choking her. A.T. scratched and bit him in resistance. Ellis threatened her by saying "Do you know what I can do to you?" (Tr. 579.)

{¶7} Ellis moved A.T. to a nearby couch, fondled her breasts, and touched her vagina. Ellis then put his penis in her vagina. A.T. tried to escape through a glass door, but Ellis pulled her back. A.T. eventually escaped and called Martin. Ellis left the house. Martin and Martin's mother returned to the home and took A.T. to the hospital.

{¶8} On October 23, 2007, the case proceeded to a jury trial. During trial, Ellis motioned for acquittal pursuant to Crim.R. 29. The trial court granted the motion in part, dismissed one count of felonious assault, and reduced the other count of felonious assault to the lesser included offense of assault under R.C. 2903.13.

{¶9} On October 29, 2007, the jury returned the following verdict: not guilty of rape; guilty of both counts of gross sexual imposition; guilty of assault; and lastly, guilty of both counts of kidnapping with sexual motivation specifications.

{¶10} On November 26, 2007, the trial court conducted a House Bill 180 hearing and classified Ellis as a sexually oriented offender. Also on November 26, 2007, the trial court sentenced Ellis to five years of imprisonment as follows: eighteen months for each count of gross sexual imposition, to be served consecutively; five years for each count of kidnapping, merged for purposes of sentencing and to be served concurrent to the eighteen month sentence; and lastly, a six-month suspended sentence for assault.

{¶11} Ellis appeals, asserting six assignments of error for our review.

ASSIGNMENT OF ERROR NUMBER ONE

"Appellant was denied his right to effective assistance of counsel guaranteed by Article I, Section 10 of the Ohio Constitution and the Sixth and Fourteenth Amendment to the United States Constitution when trial counsel failed to request a psychological assessment of Appellant prior to the Commencement of trial."

{¶12} Ellis argues that he was denied effective assistance of counsel because counsel failed to request a psychological assessment prior to commencement of trial.

{¶13} To establish a claim for ineffective assistance of counsel, Ellis must satisfy the two-prong test set forth by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668. First, Ellis must prove that trial counsel's performance was deficient, namely, that counsel's errors were so serious that counsel was not functioning as counsel guaranteed by the Sixth Amendment; and second, that the deficient performance prejudiced the defense, depriving defendant of a fair trial.

{¶14} "With regard to the required showing of prejudice, the proper standard requires the defendant to show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at paragraph 2(b) of syllabus.

{¶15} In the case sub judice, Ellis did not request a psychological assessment until after the close of trial. Neither is there any evidence in the record that Ellis may have required a psychological assessment prior to trial. Ellis was present at trial without any indicia of incompetency. Further, although represented by counsel, Ellis acted pro se and filed certain motions on his own behalf, evidence of Ellis' active involvement in the case. As the Sixth Appellate District held in a similar matter:

"After a review of the record and allowing for proper deference to trial counsel, we conclude that evidence is lacking to support a claim that trial counsel was deficient in failing to assert that appellant was incompetent to stand trial. Appellant's demeanor *** at trial and active involvement in both the adjudicatory and dispositional phases of the case demonstrate a lack of indicia of incompetency sufficient to require trial counsel to object to ...


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