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State v. Workman

Court of Appeals of Ohio, Twelfth District, Clermont

November 20, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
MICHAEL S. WORKMAN, Defendant-Appellant. Count Charge Date of Offense Sex Act Triggering Memory

         CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2016 CR 0102

          D. Vincent Faris, Clermont County Prosecuting Attorney, for plaintiff-appellee

          W. Stephen Haynes, Clermont County Public Defender, Robert F. Benintendi, for defendant-appellant

          OPINION

          RINGLAND, J.

         {¶ 1} Defendant-appellant, Michael Workman, appeals his conviction and sentence in the Clermont County Court of Common Pleas for multiple sexual offenses. For the reasons detailed below, we affirm in part, reverse in part, and remand this matter to the trial court for further proceedings.

         {¶ 2} This is a consolidated case involving two victims of Workman's sexual abuse. The first case involved allegations of sexual abuse committed against R.C., a 13-year-old friend of Workman's stepson. Following the disclosure of this incident, another victim, E.Z., came forward with allegations that Workman had repeatedly sexually abused him for nearly a decade.

         {¶ 3} Workman was indicted on February 11, 2016 for two counts of rape in violation of R.C. 2907.02 and two counts of gross sexual imposition in violation of R.C. 2907.05 for the sexual abuse committed against R.C. Thereafter, on March 24, 2016, Workman was indicted for the sexual abuse committed against E.Z. The indictment listed 17 counts. Counts 1-6 were for rapes occurring in Hamilton County between 1999 and 2000.[1] Counts 7-8 were for drug offenses between May 1, 2007 and September 1, 2007 where Workman had allegedly provided E.Z. with drugs to sedate him. Counts 9-10 were rape charges during the same May 1, 2007 to September 1, 2007 time frame alleging that Workman used drugs to sedate E.Z. in order to facilitate sexual abuse. Counts 11-17 were for rapes occurring in Clermont County between 2006 and 2008.

         {¶ 4} The trial court granted the state's motion to consolidate the two cases and the matter was tried to a jury.

         R.C.

         {¶ 5} R.C. testified that on November 15, 2015, he was in Workman's bedroom playing video games with Workman's stepson. Workman was also in the bedroom playing a computer video game. R.C. stated that at some point he became tired and fell asleep on Workman's bed.

         {¶ 6} When he awoke, R.C. stated that Workman was performing oral sex on him. Though he fell asleep fully clothed, R.C. testified that his pants and underwear had been pulled down and Workman's mouth was on his penis. R.C. stated that Workman stopped performing oral sex on him when he awoke and began moving. R.C. explained that Workman let go of him and shifted to make it look like he was playing his video game. R.C. then left the room.

         {¶ 7} R.C.'s family testified that R.C. returned home distraught. R.C.'s grandmother testified that R.C. came home, sat in a rocking chair, acted very nervous, and pulled his sweatshirt over his head while sobbing. R.C. did not initially disclose what had occurred, but when asked whether someone had hurt him, he responded "it's worse than that." R.C. continued to cry, but would not disclose the abuse. R.C. stated only that it was "disgusting."

         {¶ 8} The family was eventually able to persuade R.C. to disclose the abuse to his aunt. After the disclosure, R.C. was taken to the hospital where a rape kit examination was performed and R.C. was interviewed by social workers at Cincinnati Children's Hospital. DNA analysis revealed the presence of amylase, an enzyme found in saliva, on R.C.'s underwear. Further analysis revealed that Workman could not be excluded as a source for the DNA and that only one in nearly 50, 000 people would match the DNA found in R.C.'s underwear. Additionally, the swab taken from R.C.'s penis revealed the presence of amylase and Workman could not be excluded as a source. Only one in 90, 000 individuals would match the DNA found on R.C.'s penis.

         E.Z.

         {¶ 9} Following the evidence of abuse pertaining to R.C, the state shifted its case to the abuse committed against E.Z.

         {¶ 10} The state presented evidence that Workman had a familial relationship with the victim's family. Workman lived with the victim at three separate residences: (1) a residence in Hamilton County, Ohio between 1999-2000, (2) a residence in Florida between 2000-2006, and (3) a residence in Clermont County from 2006 onward.[2]

         {¶ 11} E.Z. testified about the first instance of sexual abuse occurring in Hamilton County and several incidents that occurred prior to the family moving to Florida. The sexual abuse continued throughout the time they resided in Florida and when they returned to Ohio in 2006. At trial, E.Z. recounted various incidents of sexual abuse occurring in Clermont County, including incidents in which Workman used controlled substances in the commission of the abuse. The sexual activity stopped in 2008 when E.Z. forcefully ended the abuse and threatened to report him.

         Verdict

         {¶ 12} Prior to deliberation, the trial court granted a Crim.R. 29 motion for Counts 7 and 8 of the indictment in E.Z.'s case for corrupting another with drugs. Following deliberations, the jury found Workman guilty of all four Counts against R.C. and the remaining 15 Counts against E.Z. The trial court merged all four Counts involving R.C. and ordered Workman to serve an 11-year prison term for that Count of rape. The 15 rape Counts involving E.Z. were not merged and the trial court ordered ten years for each conviction. All sentences were ordered consecutively for a total stated prison term of 161 years. Workman now appeals the decision of the trial court, raising five assignments of error for review. For ease of discussion, Workman's assignments of error will be addressed out of order.

         {¶ 13} Assignment of Error No. 1:

         {¶ 14} THE TRIAL COURT ERRED IN DENYING APPELLANT'S RULE 29 MOTION AS THE EVIDENCE PRESENTED WAS INSUFFICIENT TO CONCLUDE THAT GUILT HAD BEEN PROVEN BEYOND A REASONABLE DOUBT.

          {¶ 15} Assignment of Error No. 2:

         {¶ 16} THE TRIAL COURT ERRED IN ENTERING A FINDING OF GUILTY BECAUSE SUCH VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

         {¶ 17} Workman's first and second assignments of error relate to Counts 3, 6, 10, 13, 15, and 16. Each Count was for rape against E.Z. Workman argues that his convictions are not supported by sufficient evidence and are against the manifest weight of the evidence. We will address each argument below.

         {¶ 18} Rape is defined in R.C. 2907.02, which provides:

(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:
(a) For the purpose of preventing resistance, the offender substantially impairs the other person's judgment or control by administering any drug, intoxicant, or controlled substance to the other person surreptitiously or by force, threat of force, or deception.
(b) The other person is less than thirteen years of age, whether or not the offender knows the age of the other person.
(c) The other person's ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age, and the offender knows or has reasonable cause to believe that the other person's ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age.
(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.

         {¶ 19} Crim.R. 29(A) provides that "[t]he court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal * * * if the evidence is insufficient to sustain a conviction of such offense or offenses." An appellate court reviews the denial of a Crim.R. 29(A) motion pursuant to the same standard as that used to review a sufficiency-of-the-evidence claim. State v. Mota, 12th Dist. Warren No. CA2007-06-082, 2008-Ohio-4163, ¶ 5.

         {¶ 20} When reviewing the sufficiency of the evidence underlying a criminal conviction, an appellate court examines the evidence in order to determine whether such evidence, if believed, would support a conviction. State v. Boles, 12th Dist. Brown No. CA2012-06-012, 2013-Ohio-5202, ¶ 34. 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. Watson, 12th Dist. Warren No. CA2014-08-110, 2015-Ohio-2321, ¶ 22. In other words, the test for sufficiency requires a determination as to whether the state has met its burden of production at trial. State v. Wilson, 12th Dist. Warren No. CA2006-01-007, 2007-Ohio-2298, ¶ 34.

         {¶ 21} A manifest weight challenge concerns the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. State v. Vunda, 12th Dist. Butler Nos. CA2012-07-130 and CA2013-07-113, 2014-Ohio-3449, ¶ 34. In assessing whether a conviction is against the manifest weight of the evidence, a reviewing court examines the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses, and determines whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. State v. Sess, 12th Dist. Butler No. CA2015-06-117, 2016-Ohio-5560, ¶ 13.

         {¶ 22} Although the concepts of sufficiency of the evidence and weight of the evidence are legally distinct, as this court has observed, a finding that a conviction is supported by the manifest weight of the evidence is also dispositive of the issue of sufficiency. State v. Jones, 12th Dist. Butler No. CA2012-03-049, 2013-Ohio-150, ¶ 19. "Because sufficiency is required to take a case to the jury, a finding that a conviction is supported by the weight of the evidence must necessarily include a finding of sufficiency." State v. Hart, 12th Dist. Brown No. CA2011-03-008, 2012-Ohio-1896, ¶ 43.

         {¶ 23} As previously noted, E.Z. testified about the sexual abuse he suffered at the hands of Workman. E.Z. testified that the sexual abuse began when Workman performed oral sex on him when he was six or seven years old in his bedroom at the Hamilton County residence. E.Z. described the sexual abuse as occurring frequently.

         {¶ 24} After a while, but while E.Z. was still six or seven years old, Workman began performing anal sex on E.Z. The typical instance of sexual abuse was explained by E.Z.:

Q. How - how many times, you know, when you're 6 or 7 years old, how often did - did that type of conduct take place?
A. It was mostly every time after he finished anything orally on me.
Q. So would he do something oral on you first?
A. Yes.
Q. Did he say anything to you after that type of conduct?
A. After the - after the unwarranted anal sex?
Q. I guess he would perform oral sex ...

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