Court of Appeals of Ohio, Eighth District, Cuyahoga
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.
Stanton, Cuyahoga County Public Defender, and Frank Cavallo,
Assistant Public Defender, for appellant
JOURNAL ENTRY AND OPINION
A. JONES, SR, JUDGE
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
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
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.
Convictions Were Supported by Sufficient Evidence
8} In the first assignment of error, Frazier
contends that there was insufficient evidence to support his
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).
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
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 ...