State v. Ferguson

2018 Ohio 987, 108 N.E.3d 1161
Ohio Court of Appeals·Decided March 16, 2018·No. NO. 27325·Published·Cited by 6 cases

Opinions

FROELICH, J.

{¶ 1} Timothy Ferguson was found guilty by a jury in the Montgomery County Court of Common Pleas of one count of rape and one count of kidnapping. At sentencing, the offenses were merged, and Ferguson was sentenced to seven years of incarceration. Ferguson appeals from his conviction, raising three assignments of error, which relate to whether he should have been evaluated for his competency and sanity and whether he was denied the effective assistance of counsel. The State cross-appeals, challenging the merger of the offenses at sentencing. For the following reasons, the judgment of the trial court will be affirmed.

Facts and Procedural History

{¶ 2} On October 17, 2015, Ferguson met T.D. at the Regional Transit Authority hub in downtown Dayton. At the time, both were homeless. Ferguson told T.D. that he was planning to get a motel room and asked T.D. if she wanted to get some food and watch television. T.D. agreed. They picked up a pizza and went to a motel in Harrison Township, where they watched television for a few hours. T.D. also injected cocaine during this time, and Ferguson drank an alcoholic beverage or beverages.

{¶ 3} According to the State's evidence, T.D. became nervous about being at the motel with Ferguson when he began making sexual comments and references to other people being in the room. She asked to use Ferguson's phone and went into the bathroom, where she called her mother, shared her concerns about the situation, and asked for a ride; she asked her mother not to call the police because she (T.D.) had an outstanding warrant for her arrest.

{¶ 4} Ferguson came into the bathroom, took the phone, grabbed T.D.'s arm, and threw her onto the bed. Ferguson pulled off T.D.'s pants and underwear and, while he was on top of her, he told her to take off her shirt and bra. When she resisted, he hit her on the head and told her to stop listening to the other people in the room, because they did not know what they were talking about. T.D. was screaming and told Ferguson to stop, and he hit her on the head a second time, causing her to "see stars"; he also forced her legs apart and put his mouth on her vagina. Ferguson pulled the pillow out from under T.D.'s head and told her that he would "smother [her] to death" if she did not stop screaming.

{¶ 5} After he threatened to kill her, T.D. stopped fighting. Ferguson accused her and "the other people in the room" of *1164putting "something on him" to make him lose his erection. He forced T.D. to masturbate him with her hand "for quite a while." He then "flipped [her] over on the bed," held his hand to the back of her neck to keep her face and arms on the bed, and vaginally raped her.

{¶ 6} T.D. denied that she had ever agreed to have sex with Ferguson and stated that there had never been anyone else in the motel room with them.

{¶ 7} When the rape ended, Ferguson went into the bathroom and T.D. fled from the room, naked, screaming, and without any of her belongings. She obtained help and clothing from a motel employee, who testified that T.D. was shaking, crying, and hysterical. T.D. called her mother again, and the mother told her that the police were already on their way.

{¶ 8} While they waited for the sheriff's deputies to arrive, T.D., the hotel employee, and another motel resident saw Ferguson walking away from the motel with a black backpack. After deputies arrived, T.D. was taken to a hospital, and the deputies searched the vicinity of the motel for a man matching Ferguson's description. They saw Ferguson a few hours later less than two miles from the motel; Ferguson fled as soon as he saw the deputy, but his backpack was recovered. Ferguson had provided his name and identification when he rented the motel room. Ferguson was arrested in La Mesa, California, more than six months later.

{¶ 9} T.D. and a motel employee testified that there were sheets and a comforter on the bed when Ferguson and T.D. entered. This bedding was not in the room when the sheriff's deputies arrived.

{¶ 10} On July 18, 2016, Ferguson was indicted on one count of rape by force or threat of force, two counts of gross sexual imposition by force, and one count of kidnapping. The rape and kidnapping were felonies of the first degree, and the gross sexual impositions were felonies of the fourth degree. Ferguson stood mute at his arraignment, and a plea of not guilty was entered on his behalf. He did not request a mental health evaluation of any kind before trial, and he did not amend his plea to not guilty by reason of insanity. The matter was tried to a jury on October 12-14, 2016. Ferguson was found guilty of rape and kidnapping, but not guilty of both counts of gross sexual imposition.

{¶ 11} The trial court ordered a presentence investigation (PSI), and Ferguson was sentenced on November 2, 2016. The trial court found that the kidnapping merged with the rape as an allied offense of similar import. The State objected to the merger, but requested that Ferguson be sentenced on the rape. The trial court imposed a seven-year mandatory sentence for the rape and designated Ferguson as a Tier III sex offender.

{¶ 12} Ferguson appeals, raising three assignments of error. The State cross-appeals, raising one assignment of error.

Ineffective Assistance of Counsel Regarding the Need for Mental Evaluation

{¶ 13} In his first assignment of error, Ferguson argues that he was denied the effective assistance of counsel because his attorney did not request a mistrial or a new trial when "[it] was made overwhelmingly apparent during the trial that [Ferguson] was hearing voices and imagining that other people were in the hotel room with him and [T.D.]" during the alleged rape. In his second and third assignments of error, Ferguson asserts that the trial court abused its discretion or committed plain error in failing to order an evaluation of his competency on its own initiative.

{¶ 14} The State responds that, although there was some evidence that Ferguson suffered from a mental illness, there was no evidence that counsel had failed to consider this issue, that Ferguson was denied *1165the effective assistance of counsel, or that Ferguson had a condition that would satisfy the legal definition of incompetency or insanity. Because the evidence related to these assignments is the same, we will address these arguments together.

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State v. Ferguson, 2018 Ohio 987, 108 N.E.3d 1161 (Ohio Ct. App. 2018).

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