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State v. Frazier

Court of Appeals of Ohio, Eighth District, Cuyahoga

July 3, 2019

STATE OF OHIO, Plaintiff-Appellee,
BRANDON FRAZIER, Defendant-Appellant.

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-621629-A

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Debora Brewer and Katherine Mullin, Assistant Prosecuting Attorneys, for appellee.

          Mark A Stanton, Cuyahoga County Public Defender, and Frank Cavallo, Assistant Public Defender, for appellant



         {¶ 1} Defendant-appellant Brandon Frazier appeals his convictions for rape, attempted rape, kidnapping, and unlawful sexual conduct with a minor. Finding no merit to the appeal, we affirm.

         {¶ 2} In 2017, Frazier was charged with three counts of rape, and one count each of attempted rape, kidnapping with a sexual motivation specification, and unlawful sexual conduct with a minor, accompanied by notices of prior conviction and repeat violent offender specifications. The matter proceeded to a trial by jury; the notices of prior conviction and repeat violent offender specifications were tried to the bench.

         {¶ 3} A.F. testified that in July 2014, she was 13 years old and visiting her father, with whom she did not live, when Frazier, her uncle, stopped over. Frazier asked A.F. if she wanted to go to the store with him. According to A.F., the following then occurred. A.F. got into Frazier's car, despite her mother and stepmother's admonitions to stay away from Frazier because he was "bad." Frazier began driving but did not stop at any of the several stores they passed. Instead, he pulled down a side street and into the driveway of a blue house. He told AF. that it was a coworker's house and he needed to pick up something. Frazier had a key to the house and let AF. inside, where she went to look for a television remote. She was in the master bedroom and on the bed, looking under the bed for the remote, when Frazier came in and shut the door. He pulled A.F.'s pants down and told her to lay back on the bed. Frazier then performed oral sex on A.F. She tried to "push" up and down to get him to stop. Frazier stood up and pulled A.F. to a standing position. He then took off AF.'s shirt, forcibly tried to kiss her, and forced her to perform oral sex on him after pushing her to her knees.

         {¶ 4} After the assault, Frazier drove A.F. to another house. On the way there, he rubbed A.F.'s inner thigh and told her not to tell anyone what happened.

         {¶ 5} In the summer of 2017, A.F. and her mother were at a church meeting when AF. texted her mother, who was sitting a few pews away, and disclosed the assault via two lengthy text message exchanges. In the text message exchanges, copies of which were submitted into evidence, A.F. made her mother promise she would not tell anyone about the assault. A.F.'s mother testified she was able to convince her daughter to report the assault to the police.

         {¶ 6} During trial, the state dismissed one count of rape. The jury convicted Frazier of all remaining counts. The trial court found Frazier to be a repeat violent offender and sentenced him to a total of ten years in prison. Further facts will be discussed under the assignments of error.

         {¶ 7} Frazier filed a timely notice of appeal and raises the following assignments of error for our review:

I. There was insufficient evidence produced at trial to support a finding of guilt on all counts.
II: Appellant's convictions were against the manifest weight of the evidence.
III: The trial court committed plain error when it instructed that a lesser demonstration of force was required when the relationship between victim and defendant was one of child and adult or authority figure.
IV: Appellant was denied the effective assistance of counsel where trial counsel acquiesced in a jury instruction providing for an incorrect, lesser requirement of force where the relationship between the victim and defendant was one of child and adult or authority figure.

         Frazier's Convictions Were Supported by Sufficient Evidence

         {¶ 8} In the first assignment of error, Frazier contends that there was insufficient evidence to support his convictions.

         {¶ 9} Crim.R. 29(A) provides for an acquittal "if the evidence is insufficient to sustain a conviction of such offense or offenses." A sufficiency challenge essentially argues that the evidence presented was inadequate to support the jury verdict as a matter of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997) . "'The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."' State v. Getsy, 84 Ohio St.3d 180, 193, 702 N.E.2d 866 (1998), quoting Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). "[A] conviction based on legally insufficient evidence constitutes a denial of due process." Thompkins at id., citing Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed. 652 (1982). When reviewing a sufficiency of the evidence claim, we review the evidence in a light most favorable to the prosecution. State v. Hill, 75 Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996).

         Rape and Attempted Rape

         {¶ 10} Frazier claims that there was insufficient evidence that he raped and attempted to rape A.F. R.C. 2907.02(A)(2) provides that "[n]o person shall engage in sexual conduct with another who is not the spouse of the offender * * * when offender purposely compels the other person to submit by force or threat of force." R.C. 2923.02 provides: "No person, purposely or knowingly, and when purpose or knowledge is sufficient culpability for the commission of an offense, shall engage in conduct that, if successful, would constitute or result in the offense."

         {¶ 11} In Ohio, "sexual conduct" is defined 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. R.C. 2907.01(A).

         {¶ 12} R.C. 2901.01(A)(1) defines "force" as "any violence, compulsion, or constraint physically exerted by any means upon or against a person or thing." The Ohio Supreme Court has held that neither an express threat of harm nor evidence of significant physical restraint need be proven to establish the element of force in a rape case involving a minor child when the offender stands in a position of authority. State v. Dye, 82 Ohio St.3d 323, 695 N.E.2d 763 (1998), paragraph one of the syllabus; State v. Thomas, 8th Dist. Cuyahoga No. 101797, 2015-Ohio-3226, ¶ 52. Further, R.C. 2907.02(C) provides: "A victim need not prove physical resistance to the offender in prosecutions under [R.C. 2907.02]."

         {¶ 13} Frazier contends that there was insufficient evidence that he committed rape via forced oral intercourse and digital penetration. According to Frazier, the state did not present evidence that Frazier used force or sufficient evidence that A.F. was an unwilling participant. After a careful review of the record and considering the evidence in a light ...

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