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State v. Byall

Court of Appeals of Ohio, Ninth District, Wayne

August 5, 2019

STATE OF OHIO Appellee
v.
JARED BYALL Appellant

          APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF WAYNE, OHIO CASE No. 2017 CRC-I 000222.

          MATTHEW J. MALONE, Attorney at Law, for Appellant.

          DANIEL R. LUTZ, Prosecuting Attorney, and ANDREA D. UHLER, Assistant Prosecuting Attorney, for Appellee.

          DECISION AND JOURNAL ENTRY

          DONNA J. CARR JUDGE.

         {¶1} Appellant, Jared Byall, appeals the judgment of the Wayne County Court of Common Pleas. This Court affirms.

         I.

         {¶2} In 2017, the Wayne County Grand Jury indicted Byall on a long list of offenses including multiple counts of rape, sexual battery, unlawful sexual conduct with a minor, and gross sexual imposition. The alleged victims were Byall's biological daughter, S.B., and his girlfriend's daughter, K.H. Byall pleaded not guilty to the charges at arraignment.

         {¶3} The matter proceeded to a jury trial where Byall was found guilty of two counts of rape in violation of R.C. 2907.02(A)(1)(b) and two counts of rape in violation of R.C. 2907.02(A)(2). The jury also found Byall guilty of four counts of sexual battery, three counts of unlawful sexual conduct with a minor, and six counts of gross sexual imposition. The jury found Byall not guilty of two counts of sexual battery and two counts of unlawful sexual conduct with a minor.

         {¶4} The trial court imposed a sentence of 25 years to life for rape under count one of the indictment. With respect to the counts of rape contained in the third and fourth counts of the indictment, the trial court imposed a prison sentence of 11 years for each offense. The trial court imposed a five-year prison sentence for sexual battery under count eight of the indictment, as well as prison terms of 18 months on each of the two counts of gross sexual imposition contained in counts twenty and twenty-one of the indictment. The trial court ordered that the sentences for counts one, three, and four were to be served consecutively. The sentences for counts eight, twenty, and twenty-one were to be served concurrently. The trial court determined that the remaining counts were allied offenses. Byall was classified as a Tier III sex offender.

         {¶5} On appeal, Byall raises three assignments of error.

         II.

         ASSIGNMENT OF ERROR I

         APPELLANT'S CONVICTION FOR COUNT ONE, RAPE, R.C. 2907.02(A)(1)(b), WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

         {¶6} In his first assignment of error, Byall contends that his conviction for rape as contained in the first count of the indictment was against the weight of the evidence. This Court disagrees.

         {¶7} When a defendant argues that his conviction was contrary to the weight of the evidence, this Court must review all of the evidence before the trial court:

In determining whether a criminal conviction is against the manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). "When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a 'thirteenth juror' and disagrees with the fact[-]finder's resolution of the conflicting testimony." State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982). An appellate court should exercise the power to reverse a judgment as against the manifest weight of the evidence only in exceptional cases. Otten at 340.

         {¶8} Byall was convicted of rape in violation of R.C. 2907.02(A)(1)(b). Count one of the indictment further specified that Byall purposely compelled the victim to submit by force or threat of force. R.C. 2907.02(A)(1)(b) states, "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 * * * [t]he other person is less than thirteen years of age, whether or not the offender knows the age of the other person." This Court has recognized that the trial court shall impose a prison sentence of 25 years to life if an offender is convicted of violating R.C. 2907.02(A)(1)(b) and, in so doing, compels the victim to submit by force or the threat of force. State v. Bulls, 9th Dist. Summit No. 27029, 2015-Ohio-276, ¶ 27, citing R.C. 2907.02(B) and R.C. 2971.03(B)(1)(c).

         {¶9} "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. Penetration, however slight, is sufficient to complete vaginal or anal intercourse." R.C. 2907.01(A).

         {¶10} On appeal, Byall contends that he "did not compel SB. to submit at all but, if he did, it was not by force or the threat of force." Byall points to S.B.'s testimony at trial in support of his position that "even if this sexual assault occurred, S.B. obviously did not feel she was compelled to submit[.]" Though Byall acknowledges that K.H. testified that he used force against S.B., Byall asserts that K.H.'s testimony was not credible.

         {¶11} Byall lived with his girlfriend, L.H., in a trailer in Orville, Ohio. Byall and L.H. had one daughter together, S.B., who lived with them. L.H.'s daughter from a prior relationship, K.H., as well as Byall's three sons from a prior relationship also lived in the trailer.

         {¶12} At trial, K.H. testified regarding multiple incidents where she was sexually assaulted by Byall. One incident occurred inside the bathroom of the trailer when K.H. was 14 years old. Though K.H. tried to resist, Byall pushed her down on the toilet, pulled down her pants, and inserted his penis in her vagina. S.B., who was ten years old, walked into the bathroom as the incident was unfolding. K.H. explained that when S.B. tried to run away, Byall stated "oh no, no, come here" and then proceeded to "move[] her onto the toilet." S.B. testified that after Byall seated her on the toilet, he directed her to "relax and just lean back." Byall proceeded to engage in vaginal intercourse with S.B. S.B. testified that Byall was on his knees during the incident and that he only stopped when she started "kicking up and crying." Byall told S.B. not to tell her mother what happened. Both S.B. and K.H. testified that K.H. remained in the bathroom and was seated on the edge of the bathtub when Byall assaulted S.B. Byall's hands remained on S.B.'s stomach throughout the incident. During her testimony, K.H. ...


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