In re A.K.

2012 Ohio 1767

Opinion

[Cite as In re A.K., 2012-Ohio-1767.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 97188

IN RE: A.K. A Minor Child

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. DL-11101610

BEFORE: Celebrezze, J., Stewart, P.J., and S. Gallagher, J.

RELEASED AND JOURNALIZED: April 19, 2012 ATTORNEYS FOR APPELLANT

Robert L. Tobik Cuyahoga County Public Defender BY: Erika B. Cunliffe Assistant Public Defender 310 Lakeside Avenue Suite 200 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE STATE OF OHIO

William D. Mason Cuyahoga County Prosecutor BY: Amey L. Tucker Gittel Chaiko Richard Hanrahan Assistant Prosecuting Attorneys 9300 Quincy Avenue 4th Floor Cleveland, Ohio 44106 FRANK D. CELEBREZZE, JR., J.:

{¶1} Appellant, A.K., a minor, appeals from his delinquency adjudication and

subsequent disposition in the Cuyahoga County Court of Common Pleas, Juvenile

Division. After careful review of the record and relevant case law, we affirm.

{¶2} On January 31, 2011, appellant was charged in the juvenile court with rape, in

violation of R.C. 2907.01(A)(1)(b); and kidnapping, in violation of R.C. 2905.01(A)(4),

with a sexual motivation specification under R.C. 2941.147. Appellant, who had just

turned 13 years old, denied the charges, and the trial court placed him on home

monitoring pending adjudication and disposition.

{¶3} Appellant’s bench trial commenced on May 9, 2011. At the adjudication

proceeding, five-year-old victim, E.C., testified that the incident occurred at her

grandmother Donna’s house on January 29, 2011. E.C. visited there often and enjoyed

spending time with her uncles, Kenny, age 26, and Kris, age 14, who lived in the house

with Donna. Appellant regularly spent time at Donna’s house, playing with her son, Kris

{¶4} On the evening of the incident, both appellant and E.C. were visiting at

Donna’s house. E.C. had gone to Donna’s house with her mother in the afternoon and

was permitted to spend the night when her mother decided to return home. Appellant

arrived at the house at approximately 9:00 p.m. When he arrived, he went upstairs to find Kris and E.C. in Kris’s bedroom playing a video game. Thereafter, appellant, Kris,

and E.C. watched a movie in Kris’s bedroom.

{¶5} E.C. testified that when the movie ended, she went downstairs to sleep on the

couch. At some point, she was awakened by appellant, who asked her to come back

upstairs. Appellant guided her through Kris’s bedroom and into a secondary room

attached to Kris’s bedroom. Once inside, appellant closed the door and told E.C. to

remove her pants and underwear. E.C. testified that appellant pulled his pants down to

his knees, laid on top of her, and “placed his ding-ding into her privacy.” E.C. testified

that she told appellant that he was hurting her, and he stopped and pulled his pants up.

{¶6} At that time, E.C. heard Kenny ask Kris where E.C. was, and Kris responded,

“in the backroom with [appellant].” E.C. testified that Kenny walked into the room,

turned on the light, and immediately ordered E.C. to go to her grandmother’s bedroom

and explain what she and appellant had been doing.

{¶7} Kenny testified that he was alone in his bedroom watching television when he

noticed that it had became quiet in the house. Kenny stated that he left his bedroom to

check on the younger children. He walked past Kris’s room and noticed that Kris was

alone, playing a video game. Kenny testified that he asked Kris where E.C. and

appellant were; however, Kris, who is autistic, did not respond. Kenny proceeded to

look for E.C. downstairs. When Kenny was unable to find E.C., he returned to Kris’s

room and went into Kris’s secondary room, where he found E.C. and appellant sitting

side-by-side on the floor. Kenny testified that appellant was fully clothed, sitting cross legged, while E.C. was on her knees next to him, naked from the waist down. Kenny

testified that E.C. looked shocked and that appellant stated, “What the fuck * * * I didn’t

do nothing.” Kenny testified that he immediately instructed E.C. to go downstairs to tell

her grandmother, Donna, what had happened.

{¶8} Donna testified that she was in her downstairs bedroom watching television

when she heard a commotion upstairs, followed by someone yelling, “What are you

doing?” or “What’s going on?” Donna stated that she started to get out of bed when

Kenny came in her room with E.C. Donna testified that when she asked E.C., “did

[appellant] touch you?” initially E.C. “didn’t say nothing.” However, when Donna asked

her again, E.C. responded by nodding her head “yes.”

{¶9} Melissa, E.C.’s mother, testified that she learned of the incident from

Donna, who called in the middle of the night to say that E.C. was found alone with

appellant in Kris’s secondary room with her pants and underwear off. Melissa stated that

E.C. was initially reluctant to state what occurred, but eventually told Melissa that

appellant touched her with his “pee pee.” Subsequently, Melissa took E.C. to

MetroHealth Medical Center for evaluation of her daughter’s potential injuries.

{¶10} Dr. Susan Brown served as the physician at MetroHealth who conducted the

sexual assault examination of E.C. and collected the evidence that was later submitted to

the Ohio Bureau of Criminal Identification and Investigation (“BCI”) for scientific

testing. Dr. Brown testified that E.C. stated that she was at her grandmother’s house

going to bed when appellant took off her pajama bottoms and underwear and put “his thing” in her vagina. Dr. Brown testified that upon completing a physical examination of

E.C., she noticed mild irritation of E.C.’s genital area. She explained that irritation

would mean redness, irritated, or inflamed tissue.

{¶11} Lindsey Nelsen-Rausch, a BCI forensic scientist, testified that she tested

clothing submitted in E.C.’s rape kit for sources of DNA. Nelsen-Rausch found that the

underwear submitted in the rape kit tested positive for amylase, “which is a protein found

in large quantities in saliva and smaller quantities of other bodily fluids.” The amylase

sample was forwarded to BCI forensic scientist, David Niemeyer, for further DNA

testing. The amylase was found to be a DNA mixture consistent with contributions from

E.C. and appellant. Niemeyer testified that “the proportion of the population that cannot

be excluded as possible contributors to the mixture of DNA profiles on the swab is 1 in

2,506 unrelated individuals.”

{¶12} Appellant testified on his own behalf, denying the allegations brought

against him. He acknowledged that he and E.C. watched a movie in Kris’s room. He

testified that when the movie was over, Kris starting playing his video game and E.C.

asked if she could play it. When Kris said no, E.C. asked appellant if she could use his

portable video game device. Appellant testified that he said yes, but she would have to

plug it in because the battery was dead. After a few minutes, E.C. disappeared into

Kris’s secondary room. Moments later, E.C. asked appellant to come into the room and

he did. Appellant testified that he did not realize E.C. had her pants off because the

lights were off in the secondary room. He testified that Kenny suddenly walked into the room, turned on the light, and started screaming at them. Kenny then ordered E.C.

downstairs. Appellant remained with Kris Appellant testified that he heard Donna ask

E.C. if she had been touched, and she said no. He stated, “[E.C.] only said yes when

[Donna] got on the phone with [Melissa].”

{¶13} At the conclusion of appellant’s trial, the trial court found that the state had

met its burden with respect to the rape and kidnapping charges and the sexual motivation

specification and found appellant to be delinquent. At the dispositional hearing on July

14, 2011, appellant was committed to the Ohio Department of Youth Services for a period

of 12 months. However, the trial court ordered the commitment “stayed” and placed

appellant on probation with special orders to complete sex offender treatment and to

appear for periodic review hearings before the court. The trial court also ordered that

appellant have no contact with E.C.

{¶14} Appellant now brings this appeal, raising two assignments of error for

review.

Law and Analysis

I. Manifest Weight of the Evidence

{¶15} In his first assignment of error, appellant argues that the delinquency

findings on the rape and kidnapping counts are contrary to the weight of the evidence.

{¶16} The manifest weight of the evidence standard of review requires us to

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, 515 N.E.2d 1009 (9th Dist.1986), paragraph one of the syllabus. The discretionary

power to grant a new trial should be exercised only in exceptional cases where the

evidence weighs heavily against the conviction. State v. Thompkins, 78 Ohio St.3d 380,

678 N.E.2d 541 (1997).

{¶17} We are mindful that the weight to be given the evidence and the credibility

of the witnesses are matters primarily for the trier of fact. State v. DeHass, 10 Ohio

St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. The trier of fact has

the authority to “believe or disbelieve any witness or accept part of what a witness says

and reject the rest.” State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964). “The

choice between credible witnesses and their conflicting testimony rests solely with the

finder of fact and an appellate court may not substitute its own judgment for that of the

finder of fact.” State v. Awan, 22 Ohio St.3d 120, 123, 489 N.E.2d 277 (1986).

{¶18} In the instant matter, appellant was adjudicated delinquent on charges of

rape, in violation of R.C. 2907.01(A)(1)(b), and kidnapping, in violation of R.C.

2905.01(A)(4), including a sexual motivation specification under R.C. 2941.147. In

order to secure a delinquency adjudication for rape, the prosecution was required to prove

that appellant “engaged in sexual conduct with [the victim] who * * * is less than thirteen

years of age, whether or not [appellant] knows the age of [the victim].”1 Moreover, in

R.C. 2907.01(A) defines “sexual conduct” as “vaginal intercourse between a male and 1 order to secure a delinquency adjudication for kidnapping with a sexual motivation

specification, the prosecution was required to prove that appellant “removed [E.C.],” who

was less than 13 years of age at the time, “from the place where [she] was found * * * to

engage in sexual activity * * * with [E.C.] against [her] will” with a “purpose to gratify

the sexual needs or desires of [appellant].”

{¶19} Appellant contends that “the weight the trial court accorded E.C.’s

testimony was excessive.” However, on review of the record, we are unable to conclude

that this is the exceptional case in which the evidence weighs heavily against the

delinquency adjudication. At all times relevant to this case, E.C.’s allegations against

appellant were consistent. E.C. testified that appellant came downstairs to the couch

where she was sleeping and told her to go into an upstairs room. E.C. testified that, once

inside the room, appellant shut the door, ordered her to take her pants and panties off, and

penetrated her “privacy” with his “ding-ding.” Moreover, E.C. testified that she told

appellant “no” and that appellant would not allow her to exit the room when she asked if

she could go back downstairs.

{¶20} The trial court, as trier of fact, was in the best position to assess the

credibility of the witnesses and was free to believe E.C.’s testimony despite appellant’s

allegations to the contrary. The trial court heard all of the testimony at issue, including

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.” the conflicting testimony of E.C. and appellant, and made a determination that E.C. was

more credible. The trial court elaborated, “[E.C. was] one of the better witnesses that

I’ve had whether or not they’re 5 or 25 or 50 years old. * * * I found her testimony to

be forthright, honest and uncoerced.”

{¶21} Deferring to the trial court’s assessment of the credibility of the witnesses,

as we must, we cannot say that the trier of fact lost its way and performed a miscarriage

of justice in finding appellant delinquent of rape and kidnapping.

{¶22} Appellant’s first assignment of error is overruled.

II. Ineffective Assistance of Counsel

{¶23} In his second assignment of error, appellant argues that he received

ineffective assistance of counsel based on his attorney’s failure to mount a meaningful

challenge to the five-year-old accuser’s allegations where the evidence indicated that

those allegations where tainted by outside influences.

{¶24} “The benchmark for judging any claim of ineffectiveness must be whether

counsel’s conduct so undermined the proper functioning of the adversarial process that

the trial cannot be relied on as having produced a just result.” Strickland v. Washington,

466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to succeed on a

claim of ineffective assistance of counsel, appellant must satisfy a two-prong test. First,

he must demonstrate that his trial counsel’s performance was deficient. Id. at 687. If he

can show deficient performance, he must next demonstrate that he was prejudiced by the

deficient performance. Id. To show prejudice, appellant must establish there is a reasonable probability that, but for his counsel’s unprofessional errors, the result of the

trial would have been different. A reasonable probability is one sufficient to erode

confidence in the outcome. Id. at 694.

{¶25} Appellant bases his claim of ineffective assistance of counsel on his trial

counsel’s failure to file a motion to suppress E.C.’s testimony. He contends that E.C.’s

testimony was unreliable and was tainted based on the improper influence of authority

figures.

{¶26} Failure to file a motion to suppress may constitute ineffective assistance of

counsel if there is a “solid possibility” that the trial court would have suppressed the

evidence. State v. Pimental, 8th Dist. No. 84034, 2005-Ohio-384. As discussed under

the first assignment of error, appellant has failed to establish that E.C.’s testimony was

unreliable. E.C.’s testimony was clear and concise, and we have no basis to conclude

that her testimony was tainted or that she was coerced by her family to provide false

testimony. Thus, filing a motion to suppress would have been futile. State v.

Thompson, 8th Dist. No. 96929, 2012-Ohio-921. As such, defense counsel was not

ineffective for failing to file such a motion.

{¶27} Furthermore, appellant’s counsel did not provide deficient representation by

failing to call an expert in the area of child memory and psychology. Ordinarily, the use

of trial tactics does not constitute a denial of effective assistance of counsel. State v.

Briscoe, 8th Dist. No. 77832, 2000 WL 1738361 (Nov. 22, 2000). Because calling witnesses is within the realm of trial tactics, defense counsel did not have a duty to call an

expert witness.

{¶28} As stated by this court in State v. Goza, 8th Dist. No. 89032,

2007-Ohio-6837, E.C. “was a very reliable witness, whose story remained unchanged

throughout the whole ordeal. It was not unreasonable for trial counsel to determine that

an expert was not needed.” Therefore, the claim of ineffective assistance of counsel

based on failure to call expert witnesses fails.

{¶29} Appellant’s second assignment of error is overruled.

{¶30} Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment into

execution. The finding of delinquency having been affirmed, any bail or stay of execution

pending appeal is terminated. Case remanded to the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

FRANK D. CELEBREZZE, JR., JUDGE

MELODY J. STEWART, P.J., and SEAN C. GALLAGHER, J., CONCUR