[Cite as State v. Brunner, 2014-Ohio-5519.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : Hon. Patricia A. Delaney, J. -vs- : : KENNETH RAYMOND BRUNNER : Case No. 2014CA00019 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2013CR0338
JUDGMENT: Affirmed
DATE OF JUDGMENT: December 15, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO WAYNE E. GRAHAM, JR. Prosecuting Attorney 4450 Belden Village Street, NW By: RONALD MARK CALDWELL Suite 703 110 Central Plaza South, Suite 510 Canton, OH 44718 Canton, OH 44702-1413 Stark County, Case No. 2014CA00019 2
Farmer, J.
{¶1} On March 5, 2013, the Stark County Grand Jury indicted appellant,
Kenneth Raymond Brunner, on one count of rape in violation of R.C. 2907.02(A)(2).
Said charge arose from an incident involving a friend of his, Shyla Harper.
{¶2} A jury trial commenced on January 14, 2014. The jury found appellant
guilty as charged. By judgment entry filed January 30, 2014, the trial court sentenced
appellant to six years in prison.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶4} "APPELLANT'S CONVICTION WAS AGAINST THE MANIFEST WEIGHT
AND SUFFICIENCY OF THE EVIDENCE."
II
{¶5} "OTHER ERRORS WERE COMMITTED AT TRIAL NOT RAISED
HEREIN BUT APPARENT ON THE RECORD."
{¶6} Appellant claim his conviction was against the sufficiency and manifest
weight of the evidence as there was inconsistent testimony and a lack of credible
eyewitness testimony and physical evidence. We disagree.
{¶7} On review for sufficiency, a reviewing court is to examine the evidence at
trial to determine whether such evidence, if believed, would support a conviction. State
v. Jenks, 61 Ohio St.3d 259 (1991). "The relevant inquiry is whether, after viewing the
evidence in a light most favorable to the prosecution, any rational trier of fact could have Stark County, Case No. 2014CA00019 3
found the essential elements of the crime proven beyond a reasonable doubt." Jenks at
paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307 (1979). On
review for manifest weight, a reviewing court is to examine 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 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. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). See
also, State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52. The granting of a new trial
"should be exercised only in the exceptional case in which the evidence weighs heavily
against the conviction." Martin at 175.
{¶8} We note the weight to be given to the evidence and the credibility of the
witnesses are issues for the trier of fact. State v. Jamison, 49 Ohio St.3d 182 (1990).
The trier of fact "has the best opportunity to view the demeanor, attitude, and credibility
of each witness, something that does not translate well on the written page." Davis v.
Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-260.
{¶9} Appellant was convicted of one count of rape in violation of R.C.
2907.02(A)(2) which states: "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."
{¶10} As defined in R.C. 2907.01(A), "sexual conduct" means:
[V]aginal intercourse between a male and female; anal intercourse,
fellatio, and cunnilingus between persons regardless of sex; and, without Stark County, Case No. 2014CA00019 4
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.
{¶11} Ms. Harper claimed appellant forced her at knifepoint to perform fellatio on
him. Vol. 1 T. at 210-214. Appellant denied any sexual conduct other than hugging Ms.
Harper. Vol. 2 T. at 123. The evidence presented to the jury was the usual "he said,
she said" description of the incident.
{¶12} Both appellant and Ms. Harper agree as to the events leading up to the
incident. Appellant and Ms. Harper were friends. Vol. 1 T. at 201; Vol. 2 T. at 121. Ms.
Harper called appellant to see if he wanted to "hang out" at "First Friday." Vol. 1 T. at
203; Vol. 2 T. at 122. After they met up, they decided to go to the cemetery behind the
McKinley Monument because it was nice out and the cemetery was "nice" and "quiet."
Vol. 1 T. at 202-203; Vol. 2 T. at 124-125. Ms. Harper testified appellant then forced her
to perform fellatio on him, describing his actions as follows (Vol. 1 T. at 209-210 and
211-212, respectively):
And sitting there I am really focused on my phone my feet in the
creek just relaxing. He gets up behind me. He sits down. I'm thinking
he's going to try to comfort me. I am like this is a little too close for
comfort. So I am getting ready to tell him like, you know, back up just a
little. And I feel a knife on my neck, I feel something sharp on my neck. I Stark County, Case No. 2014CA00019 5
automatically grab for it. And he has got it pressed up against my neck.
I'm like this isn't funny. This is not cool. You need to move this away from
my neck. He just put more pressure on it. He tells me it is not a joke.
***
He pulled out his penis and he demanded that I give him oral. I
asked him if he had any STD's. I asked him if there was anything else I
could do, if I could just use my hands. I wound up giving him oral. I
remember crying a lot.
I remember trying to just get it over with as quickly as possible. I
knew that I couldn't get away from him. I knew that he was stronger than
me.
{¶13} Appellant denied threatening or forcing Ms. Harper to engage in oral sex.
Vol. 2 T. at 127. Appellant claimed because his girlfriend was Christian and Ms.
Harper's boyfriend lived out-of-state, they had a mutual sexual agreement between
friends "where she would give me oral and I would give her oral in return." Vol. 2 T. at
123. The incident sub judice was "the third time that we had actually done oral to each
other." Id.
{¶14} The record does disclose some inconsistencies as to the actual time of
Ms. Harper's texts to her boyfriend vis-à-vis the event and the final "911" call to police.
Vol. 2 T. at 20-24.
{¶15} Ms. Harper's neighbor and the responding officer testified to Ms. Harper's
high emotional state, upset, crying, and yelling she had been raped. Vol. 1 T. at 192- Stark County, Case No. 2014CA00019 6
193; Vol. 2 T. at 54-55. Neither the neighbor nor the responding officer or the
investigating detective observed any marks on Ms. Harper. Vol. 1 T. at 196-197; Vol. 2
T. at 59, 62, 64, 107.
{¶16} Ms. Harper testified she had cut marks on her neck and had taken
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[Cite as State v. Brunner, 2014-Ohio-5519.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : Hon. Patricia A. Delaney, J. -vs- : : KENNETH RAYMOND BRUNNER : Case No. 2014CA00019 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2013CR0338
JUDGMENT: Affirmed
DATE OF JUDGMENT: December 15, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO WAYNE E. GRAHAM, JR. Prosecuting Attorney 4450 Belden Village Street, NW By: RONALD MARK CALDWELL Suite 703 110 Central Plaza South, Suite 510 Canton, OH 44718 Canton, OH 44702-1413 Stark County, Case No. 2014CA00019 2
Farmer, J.
{¶1} On March 5, 2013, the Stark County Grand Jury indicted appellant,
Kenneth Raymond Brunner, on one count of rape in violation of R.C. 2907.02(A)(2).
Said charge arose from an incident involving a friend of his, Shyla Harper.
{¶2} A jury trial commenced on January 14, 2014. The jury found appellant
guilty as charged. By judgment entry filed January 30, 2014, the trial court sentenced
appellant to six years in prison.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶4} "APPELLANT'S CONVICTION WAS AGAINST THE MANIFEST WEIGHT
AND SUFFICIENCY OF THE EVIDENCE."
II
{¶5} "OTHER ERRORS WERE COMMITTED AT TRIAL NOT RAISED
HEREIN BUT APPARENT ON THE RECORD."
{¶6} Appellant claim his conviction was against the sufficiency and manifest
weight of the evidence as there was inconsistent testimony and a lack of credible
eyewitness testimony and physical evidence. We disagree.
{¶7} On review for sufficiency, a reviewing court is to examine the evidence at
trial to determine whether such evidence, if believed, would support a conviction. State
v. Jenks, 61 Ohio St.3d 259 (1991). "The relevant inquiry is whether, after viewing the
evidence in a light most favorable to the prosecution, any rational trier of fact could have Stark County, Case No. 2014CA00019 3
found the essential elements of the crime proven beyond a reasonable doubt." Jenks at
paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307 (1979). On
review for manifest weight, a reviewing court is to examine 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 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. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). See
also, State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52. The granting of a new trial
"should be exercised only in the exceptional case in which the evidence weighs heavily
against the conviction." Martin at 175.
{¶8} We note the weight to be given to the evidence and the credibility of the
witnesses are issues for the trier of fact. State v. Jamison, 49 Ohio St.3d 182 (1990).
The trier of fact "has the best opportunity to view the demeanor, attitude, and credibility
of each witness, something that does not translate well on the written page." Davis v.
Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-260.
{¶9} Appellant was convicted of one count of rape in violation of R.C.
2907.02(A)(2) which states: "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."
{¶10} As defined in R.C. 2907.01(A), "sexual conduct" means:
[V]aginal intercourse between a male and female; anal intercourse,
fellatio, and cunnilingus between persons regardless of sex; and, without Stark County, Case No. 2014CA00019 4
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.
{¶11} Ms. Harper claimed appellant forced her at knifepoint to perform fellatio on
him. Vol. 1 T. at 210-214. Appellant denied any sexual conduct other than hugging Ms.
Harper. Vol. 2 T. at 123. The evidence presented to the jury was the usual "he said,
she said" description of the incident.
{¶12} Both appellant and Ms. Harper agree as to the events leading up to the
incident. Appellant and Ms. Harper were friends. Vol. 1 T. at 201; Vol. 2 T. at 121. Ms.
Harper called appellant to see if he wanted to "hang out" at "First Friday." Vol. 1 T. at
203; Vol. 2 T. at 122. After they met up, they decided to go to the cemetery behind the
McKinley Monument because it was nice out and the cemetery was "nice" and "quiet."
Vol. 1 T. at 202-203; Vol. 2 T. at 124-125. Ms. Harper testified appellant then forced her
to perform fellatio on him, describing his actions as follows (Vol. 1 T. at 209-210 and
211-212, respectively):
And sitting there I am really focused on my phone my feet in the
creek just relaxing. He gets up behind me. He sits down. I'm thinking
he's going to try to comfort me. I am like this is a little too close for
comfort. So I am getting ready to tell him like, you know, back up just a
little. And I feel a knife on my neck, I feel something sharp on my neck. I Stark County, Case No. 2014CA00019 5
automatically grab for it. And he has got it pressed up against my neck.
I'm like this isn't funny. This is not cool. You need to move this away from
my neck. He just put more pressure on it. He tells me it is not a joke.
***
He pulled out his penis and he demanded that I give him oral. I
asked him if he had any STD's. I asked him if there was anything else I
could do, if I could just use my hands. I wound up giving him oral. I
remember crying a lot.
I remember trying to just get it over with as quickly as possible. I
knew that I couldn't get away from him. I knew that he was stronger than
me.
{¶13} Appellant denied threatening or forcing Ms. Harper to engage in oral sex.
Vol. 2 T. at 127. Appellant claimed because his girlfriend was Christian and Ms.
Harper's boyfriend lived out-of-state, they had a mutual sexual agreement between
friends "where she would give me oral and I would give her oral in return." Vol. 2 T. at
123. The incident sub judice was "the third time that we had actually done oral to each
other." Id.
{¶14} The record does disclose some inconsistencies as to the actual time of
Ms. Harper's texts to her boyfriend vis-à-vis the event and the final "911" call to police.
Vol. 2 T. at 20-24.
{¶15} Ms. Harper's neighbor and the responding officer testified to Ms. Harper's
high emotional state, upset, crying, and yelling she had been raped. Vol. 1 T. at 192- Stark County, Case No. 2014CA00019 6
193; Vol. 2 T. at 54-55. Neither the neighbor nor the responding officer or the
investigating detective observed any marks on Ms. Harper. Vol. 1 T. at 196-197; Vol. 2
T. at 59, 62, 64, 107.
{¶16} Ms. Harper testified she had cut marks on her neck and had taken
photographs of herself when she was at the hospital. Vol. 1 T. at 219; Vol. 2 T at 9;
State's Exhibits 6A and B. The S.A.N.E. nurse at Aultman Hospital documented some
scratches on Ms. Harper's neck, upper right arm, and right hand, but did not take any
photographs. Vol. 1 T at 179; Vol. 2 T. at 9.
{¶17} As is generally the case, a rape is a question of "Whom do you trust?" We
find there was sufficient corroborating evidence to substantiate Ms. Harper's version.
{¶18} Upon review, we find sufficient evidence, if believed, to support the
conviction, and find no manifest miscarriage of justice.
{¶19} Assignment of Error I is denied.
{¶20} Appellant claims a review of the record will reveal other errors, citing
Anders v. California, 386 U.S. 738 (1966). We disagree.
{¶21} From our review, we find defense counsel was effective. He adequately
cross-examined Ms. Harper as to the timing of the event vis-à-vis her texts to her
boyfriend and her "911" call, her telephone call to appellant later in the evening, and her
"cutting" problem. Vol. 2 T. at 20-27, 31. He cross-examined the responding officer (via
his police supplement) and the investigating detective on the lack of marks on Ms.
Harper and the lack of any police photographs of her. Vol. 2 T. at 64-65, 107-108;
Defendant's Exhibit B. Also, defense counsel made a motion for acquittal pursuant to Stark County, Case No. 2014CA00019 7
Crim.R. 29. Vol. 2 T. at 120, 149. Further, most of the objections made by the state
were resolved in appellant's favor.
{¶22} Upon review, we fail to find any evidence of procedural errors, and do not
find any deficiencies in defense counsel's representation.
{¶23} Assignment of Error II is denied.
{¶24} The judgment of the Court of Common Pleas of Stark County, Ohio is
hereby affirmed.
By Farmer, J.
Hoffman, P.J. and
Delaney, J. concur.
SGF/sg 1114