State v. Butler

2024 Ohio 5879

• Court: Ohio Court of Appeals
• Decided: December 12, 2024
• Docket: 24 CAA 07 0044
• Status: Published

Opinion

[Cite as State v. Butler, 2024-Ohio-5879.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. Patricia A. Delaney, P.J. : Hon. W. Scott Gwin, J. Plaintiff-Appellee : Hon. John W. Wise, J. : -vs- : : Case No. 24 CAA 07 0044 KYLE BUTLER : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Delaware Court of Common Pleas, Case No. 20-CRI-07 0424

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: December 12, 2024

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

MELISSA A. SCHIFFEL CHRISTOPHER BAZELEY Prosecuting Attorney 9200 Montgomery Road, Ste. 8A BY KATHERYN L. MUNGER Cincinnati, OH 45242 Assistant Prosecutor 145 North Union Street Delaware, OH 43015 Delaware County, Case No. 24 CAA 07 0044 2

Gwin, J.

{¶1} Defendant-appellant Kyle J. Butler [“Butler”] was convicted after a jury trial

in the Delaware County Court of Common Pleas of one count of Rape of a fifteen-year-

old minor by purposefully compelling the minor to engage in sexual conduct by force or

threat of force. On appeal, Butler contends that the state failed to prove beyond a

reasonable doubt that he compelled the minor to engage in sexual conduct by force or

threat of force; therefore, Butler maintains his conviction is against the sufficiency and the

manifest weight of the evidence.

{¶2} The record contains no compelling evidence weighing against Butler’s

conviction. We find the greater amount of credible evidence produced during trial proves

beyond a reasonable doubt that Butler purposefully compelled the minor victim by force

or threat of force to engage in sexual conduct; therefore, we affirm his conviction and

sentence.

Facts and Procedural History

{¶3} On August 8, 2020, the Delaware County Grand Jury returned an indictment

charging Butler with one count of Rape, purposefully compelling by force or threat of force,

a felony of the first degree in violation of R.C. 2907.02(A)(2).

{¶4} The judge granted a motion for competency evaluation on December 14,

2020. Butler was found to be not presently competent to stand trial, but could be restored

to competence. Butler was ordered to undergo treatment at Twin Valley Behavioral

HealthCare. Judgment Entry Regarding Defendant's Present Mental State, May 21, 2021.

The State filed a Motion to Retain Jurisdiction on October 28, 2022 when the maximum

time for treatment to restore competency expired. The motion was granted following a Delaware County, Case No. 24 CAA 07 0044 3

hearing. Judgment Entry Retaining Jurisdiction Pursuant to R.C. 2945.39, November 1,

2022. The issue of Butler's competence was raised again pursuant to R.C.

2945.401(J)(2)(a) and a second evaluation was conducted. Butler was found to have

been restored to competency. Judgment Entry Finding Defendant Competent, January

17, 2024.

{¶5} The state filed a Motion in Limine regarding Evid.R. 403(A) on March 20,

2024. Butler’s appointed attorney filed to withdraw on April 16, 2024 citing a breakdown

of communication and Butler's desire to have him removed from the case. New counsel

was appointed on April 24, 2024. The case was scheduled for jury trial on July 9, 2024.

Butler filed a motion to exclude the testimony of the forensic interviewer.

{¶6} A jury trial commenced on July 9, 2024.

Fifteen-year-old M.L. reports she has been sexually abused

{¶7} On July 3, 2020, the Delaware County Sheriff’s Office was notified that a

fifteen-year old girl (M.L.) was at Nationwide Children's Hospital reporting an alleged sex

offense. M.L. disclosed to her parents that she was sexually assaulted the previous day

by Butler, who is her brother-in-law.

{¶8} M.L. was interviewed at the Children’s Advocacy Center (CAC) by social

worker and medical forensic interviewer Hunter H. Joseph, LSW. 2T. at 333-334. M.L.

reported that oral-genital contact had occurred on top of her skin and on top of her

clothing. 2T. at 367. After the interview concluded, M.L. underwent a medical examination

by P-SANE Kaylyn Sturgell. M.L was interviewed a second time by the Delaware County

Sheriff’s detectives one month later. 2T. at 293-294. The second interview was conducted

to clarify what M.L had reported about the position of Butler’s hands and other details. Id. Delaware County, Case No. 24 CAA 07 0044 4

{¶9} M.L. testified at trial that on July 2, 2020, she was in the basement of her

home playing with Butler’s son, her nephew. 1T. at 215; State’s Exhibit A24. M.L was

sitting with her back against the wall and, her legs outstretched in front of her, when Butler

came downstairs. Id. at 218 - 219. Butler laid on his stomach and put his head in between

M.L.’s legs. Id. at 219 - 220. Butler unbuttoned and unzipped M.L.’s shorts, and pulled

them down to her knees. Id. at 220. M.L.’s underwear was still in place. Id. at 221. Butler

pulled M.L.’s underwear aside to expose her vagina. Id. Butler then began licking her

vagina on top of M.L.’s skin. Id. M.L. did not say anything because she was scared. Id. at

222. M.L. testified that Butler’s hands were on her legs and M.L. believed that she could

not leave the room. Id. at 222.

{¶10} M.L. testified that she changed her underwear after the incident and the

underwear were subsequently washed. 1T. at 224-225. The underwear collected at the

hospital was the pair M.L. had changed into after the attack. Id. at 237.

{¶11} After the conclusion of the evidence, the jury returned a verdict of Guilty on

the sole charge. Judgment Entry on Verdict, July 12, 2024.

{¶12} The judge held a Sentencing Hearing on July 15, 2024. The judge

sentenced Butler to an indefinite prison term of eight to twelve years. Judgment Entry of

Prison Sentence, July 15, 2024.

Assignment of Error

{¶13} “I. BUTLER'S CONVICTION FOR RAPE IS NOT SUPPORTED BY EITHER

THE LEGALLY SUFFICIENT EVIDENCE OR THE WEIGHT OF THE EVIDENCE

PRESENTED AT TRIAL.”

Standard of Appellate Review – Sufficiency of the Evidence Delaware County, Case No. 24 CAA 07 0044 5

{¶14} The Sixth Amendment provides, “In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public trial, by an impartial jury....” This right, in

conjunction with the Due Process Clause, requires that each of the material elements of

a crime be proved to a jury beyond a reasonable doubt. Alleyne v. United States, 570

U.S. 99, 133 S.Ct. 2151, 2156, 186 L.Ed.2d 314 (2013); Hurst v. Florida, 577 U.S. 92,

136 S.Ct. 616, 621, 193 L.Ed.2d 504 (2016). The test for the sufficiency of the evidence

involves a question of law for resolution by the appellate court. State v. Walker, 150 Ohio

St.3d 409, 2016-Ohio-8295, 82 N.E.3d 1124, ¶30; State v. Jordan, Slip Op. No. 2023-

Ohio-3800, ¶13. “This naturally entails a review of the elements of the charged offense

and a review of the state's evidence.” State v. Richardson, 150 Ohio St.3d 554, 2016-

Ohio-8448, 84 N.E.3d 993, ¶13.

{¶15} When reviewing the sufficiency of the evidence, an appellate court does not

ask whether the evidence should be believed. State v. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492 (1991), paragraph two of the syllabus, superseded by State constitutional

amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n.4,

684 N.E.2d 668 (1997); Walker, 150 Ohio St.3d at ¶30. “The relevant inquiry is whether,

after viewing the evidence in the light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime proven beyond a reasonable

doubt.” Jenks at paragraph two of the syllabus. State v. Poutney, 153 Ohio St.3d 474,

2018-Ohio-22, 97 N.E.3d 478, ¶19. Thus, “on review for evidentiary sufficiency we do not

second-guess the jury's credibility determinations; rather, we ask whether, ‘if believed,

[the evidence] would convince the average mind of the defendant's guilt beyond a

reasonable doubt.’” State v. Murphy, 91 Ohio St.3d 516, 543, 747 N.E.2d 765 (2001), Delaware County, Case No. 24 CAA 07 0044 6

quoting Jenks at paragraph two of the syllabus; Walker 150 Ohio St.3d at ¶31. We will

not “disturb a verdict on appeal on sufficiency grounds unless ‘reasonable minds could

not reach the conclusion reached by the trier-of-fact.’” State v. Ketterer, 111 Ohio St.3d

70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 94, quoting State v. Dennis, 79 Ohio St.3d 421,

430, 683 N.E.2d 1096 (1997); State v. Montgomery, 148 Ohio St.3d 347, 2016-Ohio-

5487, 71 N.E.3d 180, ¶74.

Issue for Appellate Review: Whether, after viewing the evidence in the light

most favorable to the prosecution, the evidence, if believed, would convince the

average mind that Butler was guilty beyond a reasonable doubt of Rape

{¶16} Butler was convicted of force / threat of force rape in violation of R.C.

2907.02(A)(2). R.C. 2097.02 provides,

(A)(2) 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.

{¶17} “Sexual conduct” means 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).

{¶18} “Force” is defined as “any violence, compulsion, or constraint physically

exerted by any means upon or against a person or thing.” R.C. 2901.01(A)(1). Delaware County, Case No. 24 CAA 07 0044 7

{¶19} Butler claim’s the evidence does not show that he purposely compelled M.L.

to submit by force or threat of force.

{¶20} R.C. 2907.02(A)(2) requires the victim's submission to sexual conduct to be

obtained by force or threat of force. State v. Biggs, 2022-Ohio-2481 (5th Dist.), ¶16. In

State v. Eskridge, 38 Ohio St.3d 56, 58-59 (1988), the Supreme Court of Ohio found the

amount of force required to meet this requirement varies depending on the age of the

victim and the relationship between the victim and the defendant. Id. at ¶ 58. However,

some amount of force must be proven beyond the force inherent in the crime itself. State

v. Dye, 82 Ohio St.3d 323, 327(1998).

{¶21} In the case at bar, M.L. testified that Butler unbuttoned and unzipped her

shorts, then he pulled them down to her knees. She further testified that because Butler’s

hand was on her leg, she felt that she could not escape. Butler used his hands to move

her underwear to the side to expose her vagina. Butler points to no evidence in the record

that M.L. consented to his acts.

{¶22} The circumstances surrounding the attack in this case are not unlike the

rape of a sleeping victim, i.e. one who does not willingly submit or resist. In can be inferred

that Butler moved M.L.’s legs, physically unbuttoned and unzipped M.L.’s shorts. Butler

used his hands to pulled the shorts down to M.L.’s knees. Butler used his hands to move

M.L.’s underwear to the side. M.L. was fifteen years old at the time, and Butler’s sister-in-

law. We find the facts sufficient to demonstrate Butler used force against his minor victim

in order to compel her submission. State v. Lauderdale, 2024-Ohio-481, ¶35 (2nd Dist.);

State v. Stevens, 2016-Ohio-446, ¶27-28 (3rd Dist.); State v. Burton, 2007-Ohio-1660,

¶42 (4th Dist.); State v. Green, 2002-Ohio-3949, ¶61 (5th Dist.); State v. Artis, 2021-Ohio- Delaware County, Case No. 24 CAA 07 0044 8

2965, ¶95 (6th Dist.); State v. Walker, 2011-Ohio-6645, ¶20 (8th Dist.); State v. H.H., 2011-

Ohio-6660, ¶12 (10th Dist.).

{¶23} Viewing this evidence in a light most favorable to the prosecution, we

conclude that a reasonable person could have found beyond a reasonable doubt that

Butler did commit the crime of rape by force or threat of force. We hold, therefore, that

the state met its burden of production regarding each element of the crime of Rape for

which Butler was indicted and, accordingly, there was sufficient evidence to submit the

charge to the jury and to support Butler’s conviction.

Standard of Appellate Review –Manifest Weight of the Evidence

{¶24} The term “‘manifest weight of the evidence’. . . relates to persuasion.”

Eastley v. Volkman, 2012-Ohio-2179, ¶19. It “concerns ‘the inclination of the greater

amount of credible evidence, offered in a trial, to support one side of the issue rather than

the other.’” (Emphasis deleted.) State v. Thompkins, 78 Ohio St.3d 380, 387(1997),

superseded by constitutional amendment on other grounds as stated by State v. Smith,

80 Ohio St.3d 89, 102 at n.4 (1997); State v. Martin, 2022-Ohio-4175, ¶ 26.

{¶25} As to the weight of the evidence, the issue is whether the jury created a

manifest miscarriage of justice in resolving conflicting evidence, even though the

evidence of guilt was legally sufficient. State v. Thompkins, 78 Ohio St.3d at 386–387;

State v. Issa, 93 Ohio St.3d 49, 67 (2001).

{¶26} Weight of the evidence addresses the evidence's effect of inducing belief.

Thompkins, at 386-387; State v. Williams, 2003-Ohio-4396, ¶83. 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 Delaware County, Case No. 24 CAA 07 0044 9

finder’s resolution of the conflicting testimony. State v. Jordan, 2023-Ohio-3800;

Thompkins at 387, citing Tibbs v. Florida, 457 U.S. 31, 42(1982) (quotation marks

omitted); State v. Wilson, 2007-Ohio-2202, ¶25, citing Thompkins.

{¶27} Traditionally courts have found that in weighing the evidence, the court of

appeals “must always be mindful of the presumption in favor of the finder of fact.” Eastley

v. Volkman, 2012-Ohio-2179, ¶ 21. “The underlying rationale of giving deference to the

findings of the trial court rests with the knowledge that the [trier of fact] is best able to view

the witnesses and observe their demeanor, gestures and voice inflections, and use these

observations in weighing the credibility of the proffered testimony.” Seasons Coal Co.,

Inc. v. Cleveland, 10 Ohio St.3d 77, 80 (1984). However, as the Eight District Court of

Appeals has recently noted, “Eastley [v. Volkman, 2012-Ohio-2179], arguably implied that

the presumption in favor of the verdict, from the now-defunct civil manifest-weight review,

still exists in manifest-weight challenges. That presumption in favor of the factfinder,

however, was the underlying basis for distinguishing the weight-of-the-evidence review

as between civil and criminal cases and is derived from C.E. Morris Co. v. Foley Constr.

Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978), which was effectively overruled by

Eastley at paragraph two of the syllabus.” State v. Reillo, 2024-Ohio-3307, ¶20. The Court

also observed, if an appellate court defers to the “factfinder’s credibility determinations in

reviewing the weight of the evidence…then there would be no difference between that

and the sufficiency analysis, in effect merging the separate concepts of sufficiency and

weight, as was once the standard for civil cases.” Reillo, ¶ 23 (citations omitted). In reality,

“[i]If appellate panels defer to the trier of fact’s credibility determinations, which resulted Delaware County, Case No. 24 CAA 07 0044 10

in the finding of guilt or there would not be an appeal, there would be no reason to

advance a manifest-weight challenge.” Id.

{¶28} A manifest-weight challenge should be sustained “‘only in the exceptional

case in which the evidence weighs heavily against the conviction.’” Thompkins, 78 Ohio

St.3d at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, (1st Dist. 1983); Nicholson

at ¶71.

{¶29} Further, to reverse a jury verdict as being against the manifest weight of the

evidence, a unanimous concurrence of all three judges on the court of appeals panel

reviewing the case is required pursuant to Article IV, Section 3(B)(3) of the Ohio

Constitution. Bryan-Wollman v. Domonko, 2007-Ohio-4918, ¶ 2-4, citing Thompkins at

paragraph four of the syllabus.

Issue for Appellate Review: Whether the jury clearly lost their way and created

such a manifest miscarriage of justice that the convictions must be reversed and a new

trial ordered

{¶30} Upon review of the entire record, weighing the evidence and all reasonable

inferences as a thirteenth juror, including considering the credibility of witnesses, we

cannot reach the conclusion that the jury lost their way and created a manifest miscarriage

of justice. Although the State’s case rested almost entirely upon the credibility of M.L.,

we note that corroboration of a victim’s testimony in rape cases is not required. State

v. Johnson, 2006-Ohio-6404, ¶ 53. M.L testified and was subjected to cross-

examination at trial. She was able to describe with specificity what Butler did with his

hands and his mouth. Any inconsistencies in her accounts of what had transpired

were minor. On appeal, Butler does not challenge that he performed cunnilingus on Delaware County, Case No. 24 CAA 07 0044 11

an unsuspecting fifteen-year-old minor family member, he simply challenges that he

used force to accomplish his purpose. We find no evidence in the record that

suggests M.L. is mistaken, or otherwise should not be believed.

{¶31} Therefore, considering the evidence, the credibility of the witnesses, and

the record in its entirety, we find the jury clearly did not lose its way concluding that

Butler was guilty. We find that the jury did not disregard or overlooked compelling

evidence that weighed against conviction.

{¶32} Butler’s sole Assignment of Error is overruled.

{¶33} The judgment of the Delaware County Court of Common Pleas is

affirmed.

By Gwin, J.,

Delaney, P.J., and

Wise, J., concur