State v. Shadoan

[Pages:26][Cite as State v. Shadoan, 2004-Ohio-1756.]

IN THE COURT OF APPEALS FOURTH APPELLATE DISTRICT

ADAMS COUNTY, OHIO

STATE OF OHIO,

:

Plaintiff-Appellee,

: CASE NO. 03CA764

-v-

:

ROY W. SHADOAN

: DECISION AND JUDGMENT ENTRY

Defendant-Appellant.

:

COUNSEL FOR APPELLANT:1

APPEARANCES

Pamela C. Childers, P.O. Box 327, Londonderry, Ohio 45647

COUNSEL FOR APPELLEE:

David Kelley, 110 West Main Street, West Union, Ohio 45693

CRIMINAL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED: 3-31-04

ABELE, J.

{?1} This is an appeal from an Adams County Common Pleas

Court judgment of conviction and sentence. The jury found Roy W.

Shadoan, defendant below and appellant herein, guilty of two

counts of rape, in violation of R.C. 2907.02(A)(2), and one count

of gross sexual imposition, in violation of R.C. 2907.05(A)(1).

{?2} Appellant raises four assignments of error for review:

{?3} FIRST ASSIGNMENT OF ERROR:

"THE COURT ERRED IN DENYING THE DEFENDANT'S MOTION FOR ACQUITTAL BASED ON THE STATE'S FAILURE TO SHOW FORCE; AND

1Different counsel represented appellant during the trial court proceedings.

ADAMS, 03CA764

2

THE JURY VERDICTS ARE NOT SUPPORTED BY SUFFICIENT EVIDENCE OF FORCE."

{?4} SECOND ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO EXAMINE THE GRAND JURY TESTIMONY TO DETERMINE INCONSISTENCIES IN THE VICTIM'S STATEMENT."

{?5} THIRD ASSIGNMENT OF ERROR:

"THE JURY VERDICTS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."

{?6} FOURTH ASSIGNMENT OF ERROR:

"THE TRIAL COURT FAILED TO COMPLY WITH THE FOURTEENTH AND SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND PROVISIONS OF ARTICLE 1, SECTION 10 OF THE OHIO CONSTITUTION WHEN IT FAILED TO PROVIDE DEFENDANT-APPELLANT WITH EFFECTIVE ASSISTANCE OF COUNSEL."

{?7} In October of 2001, the victim, her half-sister, and

her half-brother moved in with appellant, his wife, and

appellant's mother. Appellant is not the victim's biological

father, but he formerly lived with the victim's mother and

fathered the victim's half-sister. Appellant has known the

victim since she was born and lived with her and the victim's

mother until the victim was five or six years old.

{?8} On September 18, 2002, the thirteen year old victim called 911 from her friend's home. The victim stated: "I'm making a, a complaint because my dad, he molested me." On December 31, 2002, the Adams County Grand Jury returned an indictment charging appellant with two counts of rape, in violation of R.C. 2907.02(A)(2), and one count of gross sexual imposition, in violation of R.C. 2907.05(A)(1).

{?9} Beginning on March 24, 2003, and continuing on March

25, 2003, the court held a jury trial. The victim testified that

three separate incidents of sexual activity occurred between her

ADAMS, 03CA764

3

and the appellant. The victim stated that one incident occurred

while she was sleeping. She awoke upon realizing that appellant

was licking her vagina. The victim testified that appellant's

actions made her feel "very uncomfortable" and "scared." Once

she realized what was happening, she asked appellant to stop.

Another incident occurred when the appellant showed the

victim his penis, told her to "give it a kiss," and then told her

to "suck it." She complied because she was scared and "did not

know what to do." The victim stated that appellant then inserted

his penis in her mouth and put his hands on her head, moving her

head in an up-and-down direction. Appellant subsequently

ejaculated in the victim's mouth.

{?10} The victim explained that the third incident occurred

while she watched cartoons. Appellant told the victim to get on

her hands and knees. She complied because she "did not know what

to do." She stated that she was "scared and uncomfortable."

Appellant then positioned himself behind her and pulled down her

pants and underwear. The victim stated that she felt pressure in

her "butthole" and that appellant's hands were on her hips. She

stated that appellant rubbed his fingers by her vagina. She

testified that she felt wetness on her "butt cheeks" and "in

[her] vagina." The victim stated that she wanted to move but

appellant told her not to move. When appellant finished, he

retrieved a rag and wiped the victim.

{?11} Appellant denied that he licked the victim's vagina or

that he anally raped her. He admitted, however, that he

ADAMS, 03CA764

4

ejaculated in the victim's mouth, but claims he did so because he

thought that the person performing fellatio upon him was his

wife. Appellant explained that he had been sleeping with his

shirt covering his eyes when he felt someone performing fellatio.

He assumed that it was his wife, but after he ejaculated and sat

up, he realized that it was the victim.

{?12} Appellant also presented evidence tending to show that

the victim had a motivation to lie and to make up the

allegations. He claimed that she did not like living with him

and that she wanted to move to the State of Washington to live

with other relatives.

{?13} On March 25, 2003, the jury found appellant guilty of

all three offenses. Appellant filed a timely notice of appeal.

I

{?14} In his first assignment of error, appellant argues that

the record does not contain sufficient evidence to show that he

used force. He asserts that force is not shown simply because

the victim was thirteen years of age.

{?15} Appellee contends that appellant, by failing to renew

his Crim.R. 29 motion for judgment of acquittal at the close of

all of the evidence, waived the right to challenge the

sufficiency of the evidence. Appellee alternatively argues that

sufficient evidence supports appellant's convictions and that it

produced sufficient evidence to support a finding that appellant

used force. Appellee asserts that appellant exercised a position

of authority over the victim and that the victim was afraid of

ADAMS, 03CA764

5

the consequences if she disobeyed him.

{?16} We initially address appellee's claim that appellant,

by failing to renew his Crim.R. 29 motion for judgment of

acquittal at the close of all of the evidence, waived his right

to challenge the sufficiency of the evidence. In State v. Coe,

153 Ohio App.3d 44, 2003-Ohio-2732, 790 N.E.2d 1222, we recognized that past decisions of this court2 and other appellate courts3 held that a defendant who fails to properly move for a

judgment of acquittal waives, absent plain error, the right to

challenge on appeal the sufficiency of the evidence. We further

observed, however, that "two apparently little-recognized" Ohio

Supreme Court decisions indicate otherwise. In State v. Jones

(2001), 91 Ohio St.3d 335, 346, 744 N.E.2d 1163, and State v.

Carter (1992) 64 Ohio St.3d 218, 223, 594 N.E.2d 595, the Ohio

Supreme Court stated that a failure to timely file a Crim.R.

29(A) motion during a jury trial does not waive an argument on

appeal concerning the sufficiency of the evidence. In both Jones

2 State v. O'Connell, Washington App. No. 01CA24, 2003-Ohio550; State v. Dillon, Athens App. No. 01CA54, 2002-Ohio-4990; State v. Jordan (Dec. 13, 2001), Scioto App. No. 00CA2748.

3 See, e.g., State v. Dokes, Summit App. No. 21179, 2003Ohio-728; State v. Varner, Summit App. No. 21056, 2003-Ohio- 719; State v. Blackburn, Trumbull App. No. 2001-T-0052, 2003-Ohio-605; State v. McDermott, Stark App. No. 2002CA00110, 2002-Ohio-6982; State v. Hibbler, Clark App. No. 2001CA43, 2002-Ohio-4464; State v. Madden, Franklin App. No. 01AP-1470; State v. Harris, Belmont App. No. 00BA26, 2002-Ohio-2411; State v. Duffield, Portage App. No. 2000-P-0112, 2002-Ohio-1958; State v. Dixon (Feb. 8, 2002), Montgomery App. No. 18582; State v. McAlphine (Jan. 24, 2002), Cuyahoga App. No. 79216; State v. Ferguson (Mar. 16, 2001), Fulton App. No. F-00-018; State v. Calvin (July 24, 2000), Marion App. No. 9-2000-07.

ADAMS, 03CA764

6

and Carter, the Ohio Supreme Court stated that the defendant's

"not guilty" plea preserves his right to object to the alleged

insufficiency of the evidence. Id. We additionally stated in

Coe that because "a conviction based on legally insufficient

evidence constitutes a denial of due process," State v. Thompkins

(1997), 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541, a conviction

based upon insufficient evidence would almost always amount to

plain error. See State v. Hermann, Erie App. No. E-01-039, 2002-

Ohio-7307, ?24; State v. Casto, Washington App. No. 01CA25, 2002-

Ohio-6255; State v. Arrowood (Sept. 27, 1993), Pike App. No.

93CA505, at 6. Thus, we disagree with appellee that appellant

waived any error associated with the sufficiency of the evidence.

Accordingly, we may address appellant's first assignment of

error.

{?17} When an appellate court reviews the sufficiency of the

evidence, the inquiry focuses primarily upon the adequacy of the

evidence; that is, whether the evidence, if believed, reasonably

could support a finding of guilt beyond a reasonable doubt. See

State v. Thompkins (1997), 78 Ohio St.3d 380, 386, 678 N.E.2d 541

(stating that "sufficiency is a test of adequacy"); State v.

Jenks (1991), 61 Ohio St.3d 259, 273, 574 N.E.2d 492. The

standard of review is whether, after viewing the probative

evidence and inferences reasonably drawn therefrom in the light

most favorable to the prosecution, any rational trier of fact

could have found all the essential elements of the offense beyond

a reasonable doubt. See State v. Issa (2001), 93 Ohio St.3d 49,

ADAMS, 03CA764

7

66, 752 N.E.2d 904 (citing Jackson v. Virginia [1979], 443 U.S.

307, 99 S.Ct. 2781, 61 L.Ed.2d 560; Jenks, 61 Ohio St.3d at 273).

Furthermore, a reviewing court is not to assess "whether the

state's evidence is to be believed, but whether, if believed, the

evidence against a defendant would support a conviction."

Thompkins, 78 Ohio St.3d at 390 (Cook, J., concurring).

Reviewing courts will not overturn convictions on sufficiency-of-

evidence claims unless reasonable minds could not reach the

conclusion reached by the trier of fact. See State v. Tibbetts

(2001), 92 Ohio St.3d 146, 749 N.E.2d 226; State v. Treesh

(2001), 90 Ohio St.3d 460, 739 N.E.2d 749.

{?18} Employing the above standard, we believe that in the

case sub judice the prosecution presented sufficient evidence

from which a jury could conclude, beyond a reasonable doubt, that

the appellant committed rape. R.C. 2907.02(A)(2) sets forth the

offense of rape as follows: "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." Appellant's

argument focuses on whether sufficient evidence exists to show

that he compelled the victim to submit by force or threat of

force. Appellant claims that the prosecution introduced no

evidence regarding the victim's size or his size and strength or

regarding any psychological pressure appellant may have used on

the victim. We therefore limit our review accordingly.

{?19} R.C. 2901.01(A) defines force as "any violence,

compulsion, or constraint physically exerted by any means upon or

ADAMS, 03CA764

8

against a person or thing." To prove the element of force in a

rape case involving a minor child when the offender stands in

loco parentis, the force need not be physical or brutal. See

State v. Goff (2003), 154 Ohio App.3d 59, 69, 796 N.E.2d 50.

Instead, the parent's position of authority and power, in

relation to the minor's vulnerability, creates a unique situation

of dominance and control in which explicit threats and displays

of force are not necessary. See id. (citing State v. Eskridge

[1988], 38 Ohio St.3d 56, 59, 526 N.E.2d 304) see, also, State v.

Riffle (1996), 110 Ohio App.3d 554, 561, 674 N.E.2d 1214. As the

Eskridge court explained:

{?20} "The force and violence necessary to commit the crime of rape depends upon the age, size and strength of the parties and their relation to each other. With the filial obligation of obedience to a parent, the same degree of force and violence may not be required upon a person of tender years, as would be required were the parties more nearly equal in age, size and strength."

{?21} Id. at paragraph one of the syllabus. Thus, when the

rape involves a child and that child's parent, or person who

stands in loco parentis, subtle and psychological forms of

coercion sufficiently show force. See, e.g., Eskridge, 38 Ohio

St.3d at 58-59. "As long as it can be shown that the rape

victim's will was overcome by fear or duress, the forcible

element of rape can be established." Id.

{?22} In the case at bar, sufficient evidence exists that

appellant used force or the threat of force to compel the

thirteen year old victim. The victim stated that she felt

uncomfortable and scared during each incident. She stated that

 ................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download