State v. Alfrey

2023 Ohio 2004

• Court: Ohio Court of Appeals
• Decided: June 16, 2023
• Docket: 2022-CA-51
• Status: Published

Opinion

[Cite as State v. Alfrey, 2023-Ohio-2004.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

STATE OF OHIO : : Appellee : C.A. No. 2022-CA-51 : v. : Trial Court Case No. 21-CR-0731 : VICTOR ALFREY : (Criminal Appeal from Common Pleas : Court) Appellant : :

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OPINION

Rendered on June 16, 2023

ANDREW P. PICKERING, Attorney for Appellee

SAMANTHA L. BERKHOFER, Attorney for Appellant

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EPLEY, J.

{¶ 1} Defendant-Appellant Victor Alfrey (now deceased) appeals from his

convictions in the Clark County Court of Common Pleas after a jury found him guilty of

eight counts of rape (Counts 1-4, 7-10) and one count each of gross sexual imposition

(GSI) (Count 11), abduction (Count 12), and endangering children (Count 13). He was

sentenced to an aggregate prison term of 40 years to life. For the reasons that follow, the -2-

judgment of the trial court will be affirmed as to all convictions except abduction; the

conviction on the abduction count will be vacated.

I. Facts and Procedural History

{¶ 2} In June 2019, the victim, a girl who was then 11 or 12 years old began to live

with Alfrey in Springfield at the Ronez Manor apartment complex. All seemed well for

about a year, until Mother’s Day – May 10, 2020 – when Alfrey began sexually abusing

the girl (“the victim”).

{¶ 3} Over the course of about 15 months, in three different locations, Alfrey forced

the victim to engage in sexual conduct and sexual contact with him on numerous

occasions. Finally, on the evening of August 29, 2021, after being beaten by Alfrey, the

victim worked up the courage to tell her aunt what had transpired over the past year. She

was taken to Springfield Regional Medical Center, where she spoke with officers, and

then to Dayton Children’s Hospital, where she was further evaluated. Staff at Dayton

Children’s Hospital photographed her injuries, did a sexual assault examination, and

listened as the girl volunteered what had happened.

{¶ 4} When asked why she was at the hospital, the victim told Ronda Norris, a

forensic nurse at Dayton Children’s Hospital, that she was there “[b]ecause I told them

that [Alfrey] had been doing sexual stuff to me since Mother’s Day 2020.” Trial Tr. at 154.

The victim recounted that she had most recently been assaulted on August 28, 2021,

when Alfrey put his penis in her vagina and anus and made her suck on his penis. Trial

Tr. at 155-157. She explained to Norris that in May she had missed her period and Alfrey

“told me I was pregnant and started punching me in the stomach real hard and I started -3-

bleeding clots.” Trial Tr. at 159.

{¶ 5} Norris also took photographs of the victim, who revealed that, only a few days

before, she had been beaten by Alfrey; without prompting, she explained that marks on

her neck were from where Alfrey had “choked” her, that injuries inside her mouth were

from being punched by him, and that a bruise on her left breast was a hickey. Norris noted

in her examination log that “[p]atient then looks at this nurse and says, ‘I kind of feel bad

for telling on [him], but I couldn’t do this anymore.’ ” Trial Tr. at 164; State’s Exhibit 64.

“The patient says ‘it went on for a year without me saying anything. I couldn’t do it

anymore.’ ” Trial Tr. at 164; State’s Exhibit 64.

{¶ 6} In the early morning hours of August 30, 2021, Springfield police detective

Kevin Miller was dispatched to Dayton Children’s Hospital to investigate the reported

sexual abuse. He interviewed Norris and the victim’s aunt and watched a forensic

interview with the victim. Based on what he learned, Detective Miller was able to secure

a warrant to search Alfrey’s home with a focus on the victim’s bedroom. Officers used an

alternative light source (blue light) with special glasses to see if any clothes in the room

had bodily fluids on them. A sock, which was described in the victim’s forensic interview,

was collected.

{¶ 7} Eventually, Alfrey was arrested on other charges. This, however, gave

Detective Miller the opportunity to interview him about the victim’s allegations. After

initially denying that he had had any inappropriate contact with the victim, Alfrey spoke

forthrightly when Detective Miller mentioned the sock. “When I brought up the sock, I

stated that we had found the sock consistent with what [the victim] had described; and at -4-

that point in time, I noticed the body language change, and shortly thereafter he began *

* * crying.” Trial Tr. at 311; State’s Exhibit 71 at 1:03. By the time the interview was

completed, Alfrey had fundamentally admitted the allegations, although he blamed the

victim, claiming that “she started everything.” State’s Exhibit 71 at 1:18.30.

{¶ 8} Based on what Detective Miller had learned, Alfrey was charged with:

COUNT 1 RAPE (child under 13) R.C. 2907.02(A)(1)(b)

COUNT 2 RAPE (child under 13) R.C. 2907.02(A)(1)(b)

COUNT 3 RAPE (child under 13) R.C. 2907.02(A)(1)(b)

COUNT 4 RAPE (child under 13) R.C. 2907.02(A)(1)(b)

COUNT 5 FELONIOUS ASSAULT R.C. 2903.119(A)(1)

COUNT 6 ENDANGERING CHILDREN R.C. 2919.22(A)

COUNT 7 RAPE R.C. 2907.02(A)(2)

COUNT 8 RAPE R.C. 2907.02(A)(2)

COUNT 9 RAPE R.C. 2907.02(A)(2)

COUNT 10 RAPE R.C. 2907.02(A)(2)

COUNT 11 GSI R.C. 2907.05(A)(1)

COUNT 12 ABDUCTION R.C. 2907.02(A)(2)

COUNT 13 ENDANGERING CHILDREN R.C. 2919.22(B)(3)

{¶ 9} On June 1, 2022, the case proceeded to trial. The jury heard from Norris,

Detective Miller, the victim’s aunt, Dr. Jonathon Thackeray, Officer Taylor, and the victim,

who testified as a court’s witness. After approximately two and a half hours of deliberation, -5-

the jury returned guilty verdicts on Counts 1-4 and 7-13. Alfrey was found not guilty on

the felonious assault and endangering children charges in Counts 5 and 6. On July 13,

2022, after ordering a presentence investigation, the trial court imposed an aggregate

sentence of 40 years to life in prison.

{¶ 10} At an unknown date in the spring of 2023 (after Alfrey had filed his brief but

before the State’s brief was due), Alfrey died while in prison and, on March 23, 2023, the

State filed a notice suggesting his death and a motion to substitute appellate counsel as

the party/representative in the appeal pursuant to App.R. 29(A). We sustained the State’s

motion, and Alfrey’s appellate counsel has been substituted as the party/representative

in this appeal.

II. Manifest Weight of the Evidence

{¶ 11} In his lone assignment of error, Alfrey alleges that his convictions were

against the manifest weight of the evidence.

{¶ 12} When an appellate court reviews whether a conviction is against the

manifest weight of the evidence, “[t]he court, reviewing the entire record, weighs the

evidence and all reasonable inferences, considers the credibility of the witnesses and

determines whether in resolving conflicts in the evidence, the jury 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. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997),

quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). A case

should not be reversed as being against the manifest weight of the evidence except “ ‘in

the exceptional case in which the evidence weighs heavily against the -6-

conviction.’ ” (Emphasis added.) Id.

{¶ 13} “When engaged in this limited reweighing, the appellate court may not

merely substitute its view for that of the trier of fact[.]” State v. Thompson, 10th Dist.

Franklin No. 16AP-812, 2017-Ohio-8375, ¶ 25. “It is well-established that when conflicting

evidence is presented at trial, a conviction is not against the manifest weight of the

evidence simply because the trier of fact believed the prosecution testimony.” In re M.J.C.,

12th Dist. Butler No. CA2014-05-124, 2015-Ohio-820, ¶ 35.

{¶ 14} At trial, the jury heard from multiple witnesses who all testified that the victim

had told them that from May 2020 until August 2021, she had been sexually abused by

Alfrey. The jury first heard from Norris, a forensic nurse at Dayton Children’s Hospital,

who was designated an expert in the field of pediatric physical and sexual abuse. Norris

told the jury that on August 30, 2021, she came in contact with the victim, who presented

with multiple visible injuries. Norris recounted that she asked the victim why she was at

the hospital, to which the victim replied, “because I told them that [Alfrey] had been doing

sexual stuff to me since Mother’s Day 2020.” Trial Tr. at 154. The victim told Norris that

there had been vaginal and anal penetration by Alfrey’s penis and that she had performed

oral sex on him as well. Trial Tr. at 155-157. She further stated that the last time she had

been assaulted was August 28, 2021.

{¶ 15} Norris also testified that the victim, without prompting, began to tell Norris

how she received her injuries. The victim reported that a few days earlier, she had been

choked, punched, and stomped on by Alfrey when she threatened to tell. She also had a

bruise or contusion on her left breast that she claimed was a hickey. As part of her duties -7-

as a forensic nurse, Norris noted and photographed the injuries to the victim’s face, neck,

inside of mouth, and breast. She then walked the jury through the photos, which were

presented as State’s exhibits.

{¶ 16} Exhibits 19-22 focused on the victim’s right eye. The photos showed

petechiae – busted blood vessels – which can result from being punched, but often from

being choked. Norris explained to the jury that it was from “non-fatal strangulation.”

Exhibits 24-27 show other examples of petechiae: on the roof of the victim’s mouth and

on her right temple. Norris then showed the jury Exhibits 32-36, pictures depicting bruising

and petechiae on the side of the neck. Exhibits 39-43 all showed linear curvature

petechiae on the front of the neck. According to Norris, all these injuries support the claim

that the victim was choked or strangled by Alfrey.

{¶ 17} More injuries to the victim were depicted by Exhibits 44-49. These pictures

showed open wounds inside her mouth – on her top and bottom lips – which likely resulted

from being punched in the mouth. Exhibits 53-59 showed linear bruising on the victim’s

right arm, more evidence that Alfrey had beat her. Finally, Norris showed the jury pictures

of a contusion/bruising on the victim’s left breast (Exhibits 50-52). According to the nurse,

this was a suction wound, supporting the allegation that it was a hickey caused by Alfrey.

{¶ 18} Norris also testified that she performed sexual assault tests but could find

no physical evidence or injuries. That result, though, according to the nurse, was not

unexpected or uncommon for several reasons. First, the victim was on her period and

was actively bleeding, which would have washed away any potential bodily fluids left

behind by Alfrey. Second, Norris explained that it was not uncommon not to see any -8-

injuries due to “the way the body is made; it’s made to stretch, and I forgot my scrunchie.

A lot of times I will show with a scrunchie because of the way it stretches and everything.

It stretches and then kind of just goes back.” Trial Tr. at 160. She further stated that

injuries are usually only found in “the more violent cases, your real violent, violent cases.”

Trial Tr. at 161.

{¶ 19} Dr. Jonathon Thackeray, a pediatrician at Dayton Children's Hospital who

worked on the victim’s case, also testified. He went through all the same photos that

Norris did and came to the same conclusions: the bruising on the victim’s neck was

consistent with being choked (Trial Tr. at 186-187), injuries on her lips would be consistent

with being punched (Trial Tr. at 187-188), and the bruise on her breast “could be

consistent with suction hematoma, or a hickey.” Trial Tr. at 190. Dr. Thackeray further

noted that injuries to the roof of the victim’s mouth could have been caused by oral-genital

contact. Trial Tr. at 185.

{¶ 20} In addition to medical professionals, the jury also heard from law

enforcement at trial. Officer Taylor testified that he was dispatched to Springfield Regional

Medical Center in the early morning hours of August 30, 2021 on report that a 13-year-

old had been sexually assaulted. During their conversation, the victim told Office Taylor

that the abuse began on Mother’s Day 2020 while living at the Ronez apartments. The

victim revealed that Alfrey “came into her room, pulled down her pants, got on top of her,

and rubbed his genitals across her vaginal area.” Trial Tr. at 206. She described various

forms of sexual contact and stated that she had not wanted to engage in the behavior,

but Alfrey would beat her if she refused. The victim told Officer Taylor that Alfrey had told -9-

her that she had no choice and that she would just have to “suffer through it.” Trial Tr. at

210.

{¶ 21} The victim recalled other dates of abuse as well. On June 30, 2021, while

living in the Sunset Apartments with Alfrey’s girlfriend, Stormie, Alfrey took the victim to

the bedroom to perform sexual acts, but this time, Stormie walked into the room while

they were kissing. According to the victim, this was also where Alfrey, believing that she

was pregnant, punched her stomach until she bled.

{¶ 22} The victim told Officer Taylor that after Stormie walked in on them, they

were kicked out of her house, causing them to move again, this time to a house on West

Grand Avenue in Springfield. At the new location, the same conduct continued. On the

evening of August 28, 2021, Alfrey forced the victim to have intercourse. According to the

victim, this was the last straw, and she informed Alfrey that she was done. She told Officer

Taylor that, enraged, Alfrey threw her off the bed, beat her, stomped on her face with his

work boots on, choked her, and threatened to kill her if she told.

{¶ 23} The next night, the victim ran away to her Aunt Michelle’s house. Michelle

testified that the victim informed her that Alfrey had been engaging in sexual contact with

her for a long period of time. Michelle also told the jury that her niece informed her that

when Alfrey was ready to ejaculate, he would do so into a sock so she would not get

pregnant. Trial Tr. at 228.

{¶ 24} The State closed its case-in-chief with the testimony of Detective Kevin

Miller. He had interviewed Alfrey, and the video of their conversation was played for the

jury. The video started with Alfrey denying everything, but after Detective Miller brought -10-

up the sock, Alfrey’s demeanor changed; he began crying and acknowledged that the

things the victim alleged had in fact happened. And while Alfrey admitted to having sex

with the victim on at least two occasions (State’s Exhibit 71 at 1:18.15 and 1:20.00) – at

the Ronez apartment and at the house on West Grand – he maintained that she was to

blame for coming onto him and that “she started everything.” He alleged that the initial

incident at Ronez began when the victim started touching his leg, and the August incident,

he claims, commenced when she brought him back to the bedroom to have sex. When

asked if he forced the victim to suck his penis, Alfrey responded: “I didn’t force her to do

nothin’ she didn’t wanna do.” State’s Exhibit 71 at 1:21.35.

{¶ 25} The victim also testified, but as a court’s witness. Over the course of her

testimony, she recanted all of the accusations she had made against Alfrey, stating that

everything she had said was a lie. “I told this lie because I didn’t want to live with [Alfrey’s

girlfriend] Stormie because she always made me get up with her kids and cook and clean,

and I felt like that wasn’t my job. So, I went to school and asked my friend what to do to

not be able to go back there, and she told me. So, I did it, and now it got me in this big

ass mess.” Trial Tr. at 265. The victim went on to tell the jury that she simply made up the

specific details and claimed that her injuries were from wrestling around with her cousins.

{¶ 26} Notwithstanding the evidence against him and his own admissions of guilt,

Alfrey argues on appeal, as he did below, that he is not guilty (or in this case, his

convictions were against the manifest weight of the evidence) because the victim

recanted at trial, claiming everything she had previously told everyone was a lie. While

the jury heard her (new) side of the story, that does not mean the verdicts were against -11-

the manifest weight of the evidence. The trier of fact is in the best position to consider

inconsistencies, along with the witnesses’ manner and demeanor, and determine whether

the witnesses’ testimony is credible. State v. Petty, 10th Dist. Franklin Nos. 11AP-716,

11AP-766, 2012-Ohio-2989, ¶ 38, citing State v. Williams, 10th Dist. Franklin No. 02AP-

35, 2002-Ohio-4503, ¶ 58. “To that end, the fact finder is free to believe all, part or none

of the testimony of each witness appearing before it.” Id., citing State v. Raver, 10th Dist.

Franklin No. 02AP-604, 2003-Ohio-958, ¶ 21. In this case, it is clear that the jury did not

find the victim’s recantation to be credible, especially in light of the fact that she had

consistently told everyone the same detailed account of abuse, her injuries matched her

accusations, and Alfrey was on tape admitting that he had had sex with her.

{¶ 27} We conclude that Alfrey’s convictions for rape in Counts 1-4 and 7-10, GSI

in Count 11, and child endangering in Count 13 were not against the manifest weight of

the evidence. As to those convictions, the assignment of error is overruled. His

conviction for abduction in Count 12, however, was against the manifest weight of the

evidence.

{¶ 28} At trial, the State, presented no evidence that Alfrey had abducted the

victim. To be guilty of abduction under R.C. 2905.02(A)(2), a person must knowingly, by

force or threat, restrain the liberty of another under circumstances that create a risk of

physical harm or place the victim in fear. In its brief, the State argues that this was

demonstrated when Alfrey beat up the victim when she threatened to report the abuse,

but we see that incident as an assault or, as charged in Count 13, endangering children,

not a restraint on the victim’s liberty. By following the State’s logic, virtually any serious -12-

assault in which the victim suffers injuries could then be charged as abduction. Further,

in this case, there was no evidence the victim’s liberty was restrained. She did not state

that she tried to leave and was prevented from doing so. Her statement was that she said

she was going to tell, Alfrey got mad, and he assaulted her. Because there was no

evidence to support the conclusion that the victim’s liberty was restrained, Alfrey’s

conviction for abduction was based on insufficient evidence and was, therefore,

necessarily against the manifest weight of the evidence. See State v. Spears, 2008-Ohio-

5181, 899 N.E.2d 188, ¶ 24 (2d Dist.). As to Count 12, the assignment of error is

sustained.

III. Conclusion

{¶ 29} Having found that Alfrey’s conviction for abduction in Count 12 was against

the manifest weight of the evidence, the judgment of the trial court will be vacated as to

that count. We note that under normal circumstances, we would remand Count 12 for a

new trial, but in this unique case, because Alfrey is deceased, it is appropriate to simply

vacate that conviction. His convictions for rape in Counts 1-4 and 7-10, GSI in Count 11,

and child endangering in Count 13 were not against the manifest weight of the evidence,

and the judgment of the trial court will be affirmed as to those convictions.

WELBAUM, P.J., and TUCKER, J., concur.