State v. Ford

          Criminal Appeal from the Cuyahoga County No. CR-17-620606-A Court of Common Pleas Case

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Hannah Smith, Assistant Prosecuting Attorney, for appellee.

          Paul W. Flowers Co., L.PA., and Louis E. Grube, for appellant.

          JOURNAL ENTRY AND OPINION

          FRANK D. CELEBREZZE, JR., J.

         {¶ 1} Defendant-appellant, Jeremiah Ford ("appellant"), brings the instant appeal challenging his convictions for sexual battery. Appellant argues that his convictions are against the manifest weight of the evidence. After a thorough review of the record and law, this court affirms.

         I. Factual and Procedural History

         {¶ 2} The instant appeal arose from an incident that occurred between appellant and the victim, F.C., on July 30, 2017. Appellant and F.C. attended middle school and high school together and were friends at school. They did not stay in touch after high school, and had not been in contact with one another for approximately ten years prior to July 2017.

         {¶ 3} The victim posted a message on Facebook regarding how nice the weather was and asking if any of her friends wanted to hang out. Appellant responded to the victim's post, and they decided to go to a park. The victim's daughter accompanied the victim and appellant to the park.

         {¶ 4} At some point, the victim, her daughter, and appellant left the park, got ice cream, and returned to the park. Later in the evening, they got dinner together. After dinner, they went to a Wal-Mart store to purchase movies to watch. The victim invited appellant to watch the movies at her apartment.

         {¶5} As they were watching a movie, and after the victim's daughter fell asleep, appellant engaged in sexual conduct with the victim. The parties disputed whether or not the sexual conduct was consensual. According to the victim, appellant engaged in sexual acts - digital penetration, oral sex, and vaginal intercourse - against her will. Appellant, on the other hand, asserted that the victim initiated the sexual conduct and that the sexual encounter was consensual.

         {¶ 6} The following day, July 31, 2017, the victim felt "violated" and spoke with a friend about what transpired the prior evening with appellant. The victim's friend, C.F., opined that appellant's conduct constituted rape. Thereafter, the victim filed a police report and was treated at Fairview Hospital where a rape-kit examination was conducted.

         {¶ 7} In Cuyahoga C.P. No. CR-17-620606-A, the Cuyahoga County Grand Jury returned a four-count indictment on August 28, 2017, charging appellant with three counts of rape, with notice of prior conviction and repeat violent offender specifications, and one count of kidnapping, with sexual motivation, notice of prior conviction, and repeat violent offender specifications. Appellant was arraigned on August 31, 2017. He pled not guilty to the indictment.

         {¶ 8} On September 18, 2017, the trial court referred appellant to the court psychiatric clinic for an evaluation pursuant to R.C. 2945.371 for competency to stand trial and sanity at the time of the incident. The court psychiatric clinic determined that appellant was competent to stand trial. The parties stipulated to the court psychiatric clinic's report during a pretrial hearing on October 23, 2017.

         {¶ 9} On June 6, 2018, appellant waived his right to a jury trial and elected to try the case to the bench. A bench trial commenced on June 6, 2018.

         {¶ 10} After the state rested, defense counsel moved for a Crim.R. 29 judgment of acquittal. Regarding the rape offenses charged in Counts 1, 2, and 3 of the indictment, the state requested that the trial court also consider the lesser-included offense of sexual battery, third-degree felony violations of R.C. 2907.03(A)(1). The trial court permitted the state to proceed on Counts 1, 2, and 3 with the offenses of sexual battery. Defense counsel argued that Count 4 should proceed as the lesser-included offense of abduction rather than the kidnapping offense charged in the indictment. The trial court agreed. (Tr. 192-193.)

         {¶ 11} The trial court returned its verdict on June 11, 2018. On Counts 1 and 3, the trial court found appellant guilty of the lesser-included offense of sexual battery. The trial court found appellant not guilty on the underlying notice of prior conviction and repeat violent offender specifications. The trial court found appellant not guilty on Counts 2 and 4.

         {¶ 12} The trial court held a sentencing hearing on July 18, 2018. The trial court sentenced appellant to community control sanctions for a term of two years on each count, under the probation department's "mental health/developmental disabilities unit." The trial court ordered appellant to have no contact with the victim. Finally, the trial court determined that appellant was a Tier III sex offender.

         {¶ 13} On August 14, 2018, appellant filed the instant appeal challenging the trial court's judgment. He assigns one error for review:

         I. The trial court's verdict is against the manifest weight of the evidence.

         II. Law and Analysis

         {¶ 14} In his sole assignment of error, appellant argues that his convictions for sexual battery are against the manifest weight of the evidence.

         {¶ 15} Initially, we note that appellant's sole assignment of error combines and confuses the issues of sufficiency of the evidence and manifest weight of the evidence. See State v. Adhikari, 2017-Ohio-460, 84 N.E.3d 282, ¶ 10 (8th Dist). For instance, appellant argues that the "inconsistencies [in the victim's testimony] make it impossible for a finder of fact to accept her story as true, finding that [appellant] knowingly coerced her to engage in sexual conduct, without any reasonable doubts. R.C. 2907.03(A)(1)." Appellant's brief at 12.

         {¶ 16} "The legal concepts of sufficiency of the evidence and weight of the evidence are both quantitatively and qualitatively different." State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997), paragraph two of the syllabus. "Sufficiency of the evidence is a test of adequacy as to whether the evidence is legally sufficient to support a verdict as a matter of law, but weight of the evidence addresses the evidence's effect of inducing belief." State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing Thompkins at 386-387.

Sufficiency asks whether, when "viewed in a light most favorable to the prosecution," "a rational trier of fact" could find that the state met its burden of production on each element of the offense with the evidence admitted at trial? A manifest weight challenge asks whether, viewed from the perspective of a "thirteenth juror," it is apparent that the jury has clearly "lost its way" due to "misrepresentation or misapplication of the evidence."

(Citations omitted.) State v. Curry, 8th Dist. Cuyahoga No. 105203, 2018-Ohio- 4771, ¶ 21.

         {¶ 17} Appellant does not raise separate assignments of error challenging the sufficiency of the evidence and the manifest weight of the evidence, as required by App.R. 16(A)(7). See Cleveland v. Hall, 8th Dist. Cuyahoga No. 101820, 2015-Ohio-2698, ¶ 14, citing App.R. 16(A)(7) (pursuant to App.R. 16(A)(7), this court overruled an appellant's assignment of error relating to a sufficiency challenge 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).

         {¶ 18} Nevertheless, appellant's sole assignment of error primarily focuses on whether his convictions were against the manifest weight of the evidence. Although sufficiency and manifest weight are different legal concepts, "manifest weight may subsume sufficiency in conducting the analysis; that is, a finding that a conviction is supported by the manifest weight of the evidence necessarily includes a finding of sufficiency." State v. McCrary, 10th Dist. Franklin No. 10AP-881, 2011-Ohio-3161, ¶ 11, citing State v. Braxton, 10th Dist. Franklin No. 04AP-725, 2005-Ohio-2198, ¶ 15. Accordingly, a determination that a conviction is supported by the weight of the evidence is dispositive of, and will subsume the issue of sufficiency. Braxton at id.; State v. Mock, 2018-Ohio-268, 106 N.E.3d 154, ¶ 44 (8th Dist.).

         A. Coercion

         {¶ 19} Appellant argues that "[t]he strong weight of the evidence suggests that [appellant] did not knowingly coerce [the victim] to engage in manual and oral sexual conduct." (Emphasis sic.) Appellant's brief at 10. Appellant does not dispute that he engaged in sexual conduct with the victim. However, appellant argues that he believed the sexual conduct was "entirely consensual." Appellant's reply brief at 1. Appellant explains that "there had been no reason for [him] to believe during sex with [the victim] that he was coercing her to do anything at all." Appellant's reply brief at 5. Finally, appellant contends that "[t]he evidence admitted at trial strongly suggests that [the victim] did not share any sexual reservations with [him] until almost one full day had passed after the sexual conduct occurred." Appellant's brief at 11. After reviewing the record, we find that appellant's arguments are misplaced and unsupported by the record.

         {¶ 20} Appellant was convicted of sexual battery in violation of R.C. 2907.03(A)(1), which prohibits a person from engaging in sexual conduct with another when the offender knowingly coerces the other to submit by any means that would prevent resistance by a person of ordinary resolution. "A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist." R.C. 2901.22(B).

         {¶ 21} The Revised Code does not define "coercion." The commentary to RC. 2907.03, however, provides that sexual conduct by coercion is somewhat broader than sexual conduct by force. State v. Ndoji, 8th Dist. Cuyahoga No. 90181, 2008-Ohio-3551, ¶ 15; State v. Wilkins, 64 Ohio St.2d 382, 386, 415 N.E.2d 303 (1980) ("coercion for purposes of sexual battery is broader than the force required to prove rape and necessarily includes all uses of force. Force is not required to prove coercion.").

         {¶ 22} In State v. Woods, 48 Ohio St.2d 127, 357 N.E.2d 1059 (1976), the Ohio Supreme Court described the term "coercion" as follows:

"Coercion" may include a compulsion brought about by moral force or in some other manner with or without physical force. * * *

These judicial definitions of coercion correspond to the common use of the word. Webster's Third New International Dictionary defines coercion as "the act of coercing: use of physical or moral force to compel to act or assent," and to coerce as "to restrain, control or dominate, nullifying individual will or desire (as by force, power, violence, or intimidation)."

The essential characteristic of coercion which emerges from these definitions is that force, threat of force, strong persuasion or domination by another, necessitous circumstances, or some combination of those, has overcome the mind or volition of the [victim] so that [s]he acted other than [s]he ordinarily would have acted in the absence of those influences.

Id. at 136-137.

         {¶ 23} Additionally, in State v. Brooks, 8th Dist. Cuyahoga No. 96552, 2011- Ohio-6643, this court reiterated the Twelfth District's explanation of the element of coercion:

"Coercion for purposes of sexual battery has been defined as 'to compel by pressure.' See In re Jordan, [9th Dist. Lorain No. 01 CA007804, 2001 Ohio App. LEXIS 4013 (Sept. 12, 2001)]. Webster's Third New International Dictionary (1993) defines 'to coerce' in relevant part as 'to restrain, control, or dominate, nullifying the individual will or desire,' 'to compel to an act of force, threat, or other pressure,' and 'to bring about * * * by force, threat, or other pressure.' Id. at 439. Black's Law Dictionary (5th Ed.1979), in turn states that coercion 'may be actual, direct, or positive, as where physical force is used to compel act[s] against one's will, or implied, legal, or constructive, as an where one party is constrained by subjugation to [an]other to do what his free will would refuse.' Id. . at 234."

Brooks at ¶ 34, quoting In re JA.S., 12th Dist. Warren No. CA2007-04-046, 2007-Ohio-6746, ¶ 19.

         {¶ 24} In Wilkins, 64 Ohio St.2d 382, 415 N.E.2d 303, the Ohio Supreme Court held that sexual battery, as defined in R.C. 2907.03(A)(1), may be a lesser-included offense of rape, as defined in R.C. 2907.02(A)(1). Id. at syllabus. The court explained,

it is possible for a person to compel another to engage in sexual conduct by force or threat of force knowingly but not purposely. A person could subjectively believe that there is consent where there is none, and in using his strength could coerce another to submit by force. In such a case he would not intend to do the prohibited act. However, if he is aware of the circumstances that probably exist and that under such circumstances there probably is no consent he would have knowingly coerced another to engage in sexual conduct by force. Consequently, sexual battery as defined in R. C. 2907.03(A)(1) may be a lesser included offense of rape as defined in R. C. 2907.02(A)(1) where force is present.

Id. at 386-387.

         {¶ 25} In State v. Frigic, 8th Dist. Cuyahoga No. 61509, 1992 Ohio App. LEXIS 6598, 11 (Dec. 31, 1992), this court explained,

sexual battery is properly considered as a lesser offense of rape when the evidence demonstrates either that the defendant knowingly coerced another to engage in sexual conduct by force, or that the defendant misunderstood a refusal to consent. Sexual battery is not properly considered when the state's evidence demonstrates that the victim gave absolutely no indication of valid consent, and the defendant wholly denies that any sexual conduct occurred.

Id. at 14.

         {¶ 26} In the instant matter, appellant does not deny that sexual conduct occurred with the victim. Furthermore, the evidence - the victim's testimony - demonstrates that appellant knowingly coerced the victim to engage in sexual conduct by force. Accordingly, the trial court properly considered the lesser offense of sexual battery.

         {¶ 27} As noted above, the victim testified that appellant digitally penetrated her with his fingers, performed oral sex, and had vaginal intercourse with her against her will. The victim testified that appellant got on top of her, forced his hands down her pants, and forced his fingers into her vagina. When appellant got on top of her and forced his hands down her pants, she said "no," told appellant "stop" and "get off," and tried to pull his hands away approximately five times. (Tr. 35-36.) She explained that she was unable to push him off of her because "he was forcing [his hands down her pants] and he wouldn't stop." (Tr. 36.) The victim testified that she is 5'2" and weighs 125 pounds. (Tr. 34.) She explained that appellant was "much bigger" than her.

         {¶ 28} After forcing his fingers into her vagina, appellant forced his mouth onto her vagina and performed oral sex. She continued to tell appellant "no" and also asserted that she was on her period. She did not want him to perform oral sex. (Tr. 52.)

         {¶ 29} The victim was fearful of appellant based on what he said earlier in the day and also because "how [appellant] was so forceful on [her] when [she] kept telling him to stop and he wouldn't stop. [The victim] was thinking about that." (Tr. 83.)

         {¶ 30} In Frigic, 8th Dist. Cuyahoga No. 61509, 1992 Ohio App. LEXIS 6598, the ...