[Cite as State v. Gatlin, 2012-Ohio-3226.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: STATE OF OHIO : Hon. Patricia A. Delaney, P.J. : Hon. W. Scott Gwin, J. Plaintiff-Appellee : Hon. Julie A. Edwards, J. : -vs- : : Case No. 2011-CA-00235 VINCENT D. GATLIN, SR, : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Stark County Court of Common Pleas, Case No. 2011- CR-00824
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 16, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant JOHN FERRERO BY: RENEE WATSON GEORGE URBAN Stark County Prosecutor 116 Cleveland Avenue N.W. 110 Central Plaza South Canton, OH 44702 Canton, OH 44702 [Cite as State v. Gatlin, 2012-Ohio-3226.]
Gwin, J.
{¶1} Appellant Vincent Gatlin [“Gatlin”] appeals from the September 20, 2011
judgment entry of the Stark County Court of Common Pleas convicting him of one count
of felonious assault with a repeat violent offender specification, one count of sexual
battery and sentencing him to an aggregate prison term of 13 years. Appellee is the
State of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} On July 11, 2011, the Stark County Grand Jury returned an indictment
charging Gatlin with one count of felonious assault based on sexual conduct while
carrying HIV pursuant to R.C. 2903.11(B)(3) and one count of sexual battery pursuant
to R.C. 2907.03(A)(5). On August 25, 2011, a superseding indictment was filed which
added a repeat violent offender specification pursuant to R.C. 2941.149, to the charge
of felonious assault.
{¶3} With respect to the repeat violent offender (RVO) specification, Gatlin
understood that the specification would be tried to the court in a separate bifurcated
hearing, and stipulated to authenticity and validity of his prior conviction.(1T. at 7).
{¶4} Also before trial, the court conducted a voir dire of the thirteen-year-old
victim, M.J. concerning a prior false rape allegation. M.J. admitted that she had once
told her sister a story about being knocked off her bike by a strange man and then
raped, but then immediately told her sister she was "just playing." M.J's sister, however,
took M.J. seriously and told her parents. When confronted, M.J. told her parents it was
not true. At the conclusion of the hearing, the court sustained Gatlin's motion to question
M.J. about the prior false allegation during trial. Stark County, Case No. 2011-CA-00235 3
The Assault on M.J.
{¶5} Thirteen year-old M.J. and her brother live with their grandparents, Annie
and Andrew Johnson. M.J. has lived with her grandparents for as long as she can
remember. Her mother is Lashell Patton, who is married to Gatlin. M.J's little sister
Davaya lives with M.J's mother and Gatlin. Johnson's grandparents allow M.J. and her
brother to visit with their mother and Gatlin.
{¶6} One such visit took place the weekend of April 16, 2011. Gatlin and Patton
routinely collected scrap metal from vacant houses to sell. Originally, on that evening
Gatlin had planned to take M.J. and her brother with him to find scrap, but M.J's brother
fell asleep. Around 11:00 p.m. that night, Gatlin told M.J. they needed to talk and that he
was going to take her to her father's house.
{¶7} The two left the house on foot, but instead of going to M.J's father’s house
they found a vacant home and walked through it. On the way out of the house, Gatlin
stepped in a hole and twisted his ankle. They went back home, where Gatlin got a
crutch and put a brace on his ankle. He and M.J. then went out again. This time Gatlin
started walking towards M.J's father's house. As they walked, Gatlin started asking M.J.
inappropriate questions such as what sexual positions she preferred. He then asked
M.J. if it would "be nasty if I did it with you." M.J. agreed that would be "nasty" since
Gatlin is her stepfather. During this conversation, Gatlin changed course, no longer
headed toward M.J.'s father's home.
{¶8} Instead, Gatlin lead M.J. to a vacant home located near the Timken
Company. Gatlin gained access to the house, and then asked M.J. if she was ready to
take a test. M.J. became nervous, said no and made an excuse to go back home. Gatlin Stark County, Case No. 2011-CA-00235 4
told her to calm down, then forced her into the living room and pushed her down onto
the couch.
{¶9} M.J. was wearing her mother's sweat pants, which were big and baggy on
her. Gatlin pulled them off M.J. He then removed her underwear. Gatlin was wearing
pajama pants with a hole torn between the legs. It was not necessary for him to remove
the pants before holding M.J. down with his body weight and engaging in vaginal
intercourse. During the assault, Gatlin called M.J. by her nickname "Sticks," telling her
"Sticks, you do this well."
{¶10} When he was finished, Gatlin stood up. M.J. saw "white stuff' come out of
his penis. Gatlin advised M.J. "don't tell nobody that nothing happened between us,
nothing at all." He then demanded, “swear on your little sister Davaya that you won't
tell.”
{¶11} The two then left the house and walked back to M.J.'s mother's house.
When they arrived home, M.J.'s mother asked M.J. what was wrong. M.J. denied
anything was wrong. She did not tell her mother the next day what had occurred in the
vacant house. When her grandmother picked her up that evening, she still did not
disclose what had happened to her.
{¶12} On April 19, 2011, M.J. told two of her cousins what Gatlin had done to
her. They advised M.J. that if she did not tell her grandmother about the incident, they
would. When she got home from school that afternoon, M.J. told her grandmother. M.J's
grandmother responded by calling the Canton Police Department, and then taking M.J.
to Akron Children's Hospital. Stark County, Case No. 2011-CA-00235 5
The Investigation
{¶13} At the hospital, nurse practitioner Donna Abbott examined M.J. Abbott
works in the CARE Center, a clinic dedicated to the evaluation of children who present
with suspicions or allegations of physical or sexual abuse or neglect. In her 19 years at
Children's Hospital, she has examined over 6000 children.
{¶14} M.J.'s exam was normal. At trial, Abbott explained that physical findings in
instances of sexual abuse are rare. Abbott completed a rape kit during M.J.'s exam,
which was sent to the Canton-Stark County Crime Lab for analysis.
{¶15} Meanwhile, Canton Police Detective Charles Lancaster was assigned to
investigate this matter. By the time he became involved, M.J. had already been to the
hospital. He learned where the assault took place and went there to further investigate.
{¶16} The house was filthy. The couch cushions were without covers and clean.
Given the condition of the rest of the house, it appeared that the covers had recently
been removed from the cushions. Photographs were taken of the scene and a pair of
latex gloves was collected from the floor.
{¶17} On April 25, 2011, Lancaster interviewed Gatlin. Gatlin showed up to the
interview wearing a leg brace and said he injured himself playing basketball. Gatlin
denied having sex with M.J. and told Lancaster, he and M.J. had a very good
relationship. Gatlin consented to an oral swab. Lancaster collected the same and sent it
to the Canton-Stark County Crime Lab.
{¶18} Criminalist and Canton-Stark County Crime Lab employee Kylie Graham
performed the testing on M.J.’s rape kit, Gatlin's swab, and the latex gloves found at the
scene. The gloves yielded no useful forensic evidence. Graham did identify Stark County, Case No. 2011-CA-00235 6
spermatozoa on M.J.'s vaginal swab. From the spermatozoa, she developed a DNA
profile. She did the same with Gatlin's oral swab, and then compared the two profiles.
Graham concluded that Gatlin was the source of the spermatozoa on M.J.’s vaginal
swab.
{¶19} During Graham's testimony, Gatlin objected to Graham's testimony as an
expert pursuant to Crim.R. 16(K). While Gatlin did not object to Graham being declared
an expert, he argued that since the state failed to provide her qualifications at least 21
days before trial, her testimony should be precluded. The court took a recess so Gatlin
could review Graham's qualifications and overruled the objection.
{¶20} Lancaster again interviewed Gatlin about M.J.'s allegation. Gatlin
continued to deny the allegation and told Lancaster that M.J. was a "conniving
teenager." He further advised Lancaster that he would never have sex with M.J.
because he is HIV positive. Gatlin has been under the care of infectious disease
physician Marcantonio Fiorentino for management of his HIV since 2003. Upon cross-
examination, Lancaster testified that he did not attempt to retrieve the underwear M.J.
was wearing the night in question and there was no physical evidence that placed Gatlin
in the house where the crime occurred. Additionally, Lancaster testified there was no
physical evidence that placed M.J. in the home. Crime Scene Unit officer, Jeffery
Weller, testified that he examined the house for bodily fluids and he did not find
evidence of any bodily fluids.
Gatlin’s Case
{¶21} At trial, Lashell Patton, Gatlin’s wife and mother of M. J. testified that she
did not observe anything out of the ordinary when Gatlin and M.J. returned from Stark County, Case No. 2011-CA-00235 7
scrapping the evening in question. Gatlin took the stand in his own defense. He told the
jury he had no idea how his semen got into M.J.’s vagina.
The Verdict and Sentence
{¶22} After hearing all the evidence and deliberating, the jury found Gatlin guilty
as charged. The court then addressed the RVO specification. The state presented a
certified copy of Gatlin's 1994 conviction for robbery, a felony of the second degree.
Based on Gatlin's stipulation and the state's exhibits, the court found Gatlin guilty of the
specification.
{¶23} On September 9, 2011, the trial court conducted a sentencing hearing.
The court found that pursuant to State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-
6314, 942 N.E.2d 1061, sexual battery and felonious assault were allied offenses.
Gatlin was thus sentenced to eight years for felonious assault and a consecutive five
years for the RVO specification. Finally, the court classified Gatlin as a Tier III sex
offender.
ASSIGNMENTS OF ERROR
{¶24} Gatlin raises three assignments of error,
{¶25} “I. APPELLANT'S CONVICTIONS WERE AGAINST THE MANIFEST
WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
{¶26} “II. APPELLANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS
GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION WHEN THE TRIAL COURT ABUSED ITS DISCRETION BY
ALLOWING EXPERT WITNESSES TESTIMONY. Stark County, Case No. 2011-CA-00235 8
{¶27} “III. THE TRIAL COURT ERRED WHEN IT SENTENCED APPELLANT
ON THE REPEAT VIOLENT OFFENDER SPECIFICATION.”
I.
{¶28} Gatlin’s first assignment of error raise issues involving the sufficiency and
manifest weight of the evidence presented below.
{¶29} Our review of the constitutional sufficiency of evidence to support a
criminal conviction is governed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979), which requires a court of appeals to determine 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 beyond a reasonable
doubt.” Id.; see also McDaniel v. Brown, _U.S._, 130 S.Ct. 665, 673, 175 L.Ed.2d
582(2010) (reaffirming this standard); State v. Fry, 125 Ohio St.3d 163, 926 N.E.2d
1239, 2010–Ohio–1017, ¶ 146; State v. Clay, 187 Ohio App.3d 633, 933 N.E.2d 296,
2010–Ohio–2720, ¶ 68.
{¶30} Weight of the evidence addresses the evidence's effect of inducing belief.
State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997), superseded
by constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio
St.3d 89, 684 N.E.2d 668, 1997-Ohio-355. Weight of the evidence 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. It indicates clearly to the jury that the party
having the burden of proof will be entitled to their verdict, if, on weighing the evidence in
their minds, they shall find the greater amount of credible evidence sustains the issue
which is to be established before them. Weight is not a question of mathematics, but Stark County, Case No. 2011-CA-00235 9
depends on its effect in inducing belief.” (Emphasis sic.) Id. at 387, 678 N.E.2d 541,
quoting Black's Law Dictionary (6th Ed. 1990) at 1594.
{¶31} 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 finder’s resolution of the conflicting
testimony. Id. at 387, 678 N.E.2d 541, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102
S.Ct. 2211, 72 L.Ed.2d 652 (1982). However, an appellate court may not merely
substitute its view for that of the jury, but must find that “‘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, supra, 78 Ohio St.3d at 387, quoting State v.
Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist. 1983).
Accordingly, reversal on manifest weight grounds is reserved for “‘the exceptional case
in which the evidence weighs heavily against the conviction.’” Id.
{¶32} In the case at bar, Gatlin was convicted of felonious assault based on
sexual conduct while carrying HIV, sexual battery and a repeat violent offender
specification. In his brief, he contests his sexual battery and felonious assault
convictions.
{¶33} Gatlin was convicted of sexual battery pursuant to R.C. 2907.03 (A)(5). To
prove sexual battery, the state needed to show that Gatlin engaged in sexual conduct
with M.J. and that Gatlin was M.J.’s stepfather. Pursuant to R.C. 2907.01(A), sexual
conduct includes vaginal intercourse between a male and a female.
{¶34} Gatlin was also convicted of felonious assault based on sexual conduct
while carrying HIV pursuant to R.C. 2903.11(B)(3). To convict Gatlin, the state needed Stark County, Case No. 2011-CA-00235 10
to prove that Gatlin knowingly engaged in sexual conduct with 13 year-old M.J. with the
knowledge that he was HIV positive. R.C. 2901.22(B) provides that "a person acts
knowingly, regardless of his purpose when he is aware that his conduct will probably
cause a certain result or will be of a certain nature. A person has knowledge of the
circumstances when he is aware that such circumstances probably exist."
{¶35} Whether a person acts knowingly can only be determined, absent a
defendant's admission, from all the surrounding facts and circumstances, including the
doing of the act itself.” State v. Huff, 145 Ohio App.3d 555, 563, 763 N.E.2d 695(2001).
(Footnote omitted.) Thus, “[t]he test for whether a defendant acted knowingly is a
subjective one, but it is decided on objective criteria.” State v. McDaniel, 2nd Dist.
No.6221, 1998 WL 214604, (citing State v. Elliott, 104 Ohio App.3d 812, 663 N.E.2d
412(1995)).
{¶36} Gatlin does not challenge any one element of either sexual battery or
felonious assault. Instead, Gatlin takes aim at M.J.'s credibility and the investigation.
{¶37} In the case at bar, M.J. testified that Gatlin penetrated her vagina with his
penis. “Corroboration of victim testimony in rape cases is not required.” State v.
Johnson, 112 Ohio St.3d 210, 217, 2006-Ohio-6404 at ¶53, 858 N.E.2d 1144, 1158.
Gatlin’s semen was found on the vaginal swabs taken from M.J. Gatlin admitted that he
was HIV positive and that he was M.J.’s stepfather.
{¶38} Viewing the evidence in a light most favorable to the prosecution, we
conclude that a reasonable person could have found beyond a reasonable doubt that
Gatlin had committed the crime of felonious assault while carrying HIV and sexual
battery. We hold, therefore, that the state met its burden of production regarding each Stark County, Case No. 2011-CA-00235 11
element of the crimes and, accordingly, there was sufficient evidence to support Gatlin's
{¶39} Ultimately, “the reviewing court must determine whether the appellant or
the appellee provided the more believable evidence, but must not completely substitute
its judgment for that of the original trier of fact ‘unless it is patently apparent that the fact
finder lost its way.’” State v. Pallai, 7th Dist. No. 07 MA 198, 2008-Ohio-6635, ¶31,
quoting State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964, ¶ 81.
In other words, “[w]hen there exist two fairly reasonable views of the evidence or two
conflicting versions of events, neither of which is unbelievable, it is not our province to
choose which one we believe.” State v. Dyke, 7th Dist. No. 99 CA 149, 2002-Ohio-1152,
at ¶ 13, citing State v. Gore (1999), 131 Ohio App.3d 197, 201, 722 N.E.2d 125.
{¶40} The weight to be given to the evidence and the credibility of the witnesses
are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d
212(1967), paragraph one of the syllabus; State v. Hunter, 131 Ohio St.3d 67, 2011-
Ohio-6524, 960 N.E.2d 955, ¶118. Accord, Glasser v. United States, 315 U.S. 60, 80,
62 S.Ct. 457, 86 L.Ed. 680 (1942); Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct.
843, 74 L.Ed.2d 646 (1983). The jury was free to accept or reject any and all of the
evidence offered by the parties and assess the witness’s credibility. "While the jury may
take note of the inconsistencies and resolve or discount them accordingly * * * such
inconsistencies do not render defendant's conviction against the manifest weight or
sufficiency of the evidence". State v. Craig, 10th Dist. No. 99AP-739, 1999 WL 29752
(Mar 23, 2000) citing State v. Nivens, 10th Dist. No. 95APA09-1236, 1996 WL 284714
(May 28, 1996). Indeed, the [judge] need not believe all of a witness' testimony, but may Stark County, Case No. 2011-CA-00235 12
accept only portions of it as true. State v. Raver, Franklin App. No. 02AP-604, 2003-
Ohio-958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964); State
v. Burke, 10th Dist. No. 02AP-1238, 2003-Ohio-2889, citing State v. Caldwell (1992), 79
Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992). Although the evidence may have
been circumstantial, we note that circumstantial evidence has the same probative value
as direct evidence. State v. Jenks, supra.
“[I]n determining whether the judgment below is manifestly against
the weight of the evidence, every reasonable intendment and every
reasonable presumption must be made in favor of the judgment and the
finding of facts. * * *
“If the evidence is susceptible of more than one construction, the
reviewing court is bound to give it that interpretation which is consistent
with the verdict and judgment, most favorable to sustaining the verdict and
judgment.”
Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.
3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).
{¶41} In Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E. 2d 118 (1954),
the Supreme Court further cautioned,
The mere number of witnesses, who may support a claim of one or the
other of the parties to an action, is not to be taken as a basis for resolving
disputed facts. The degree of proof required is determined by the
impression which the testimony of the witnesses makes upon the trier of
facts, and the character of the testimony itself. Credibility, intelligence, Stark County, Case No. 2011-CA-00235 13
freedom from bias or prejudice, opportunity to be informed, the disposition
to tell the truth or otherwise, and the probability or improbability of the
statements made, are all tests of testimonial value. Where the evidence is
in conflict, the trier of facts may determine what should be accepted as the
truth and what should be rejected as false. See Rice v. City of Cleveland,
114 Ohio St. 299, 58 N.E.2d 768.
161 Ohio St. at 477-478. (Emphasis added).
{¶42} Although Gatlin cross-examined the witnesses and argued that M.J.
lacked credibility and had made false allegations in the past 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, 552 N.E.2d 180(1990).
{¶43} We find that this is not an “‘exceptional case in which the evidence weighs
heavily against the conviction.’” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d
541, quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. The jury was in the best
position to evaluate this competent, credible evidence, and we will not substitute our
judgment for that of the trier of fact. The jury neither lost their way nor created a
miscarriage of justice in convicting Gatlin of the charges.
{¶44} Gatlin's first assignment of error is overruled.
II.
{¶45} In the instant case, two witnesses were permitted to testify as experts over
the objection of trial counsel. Kylie Graham of the Stark County Crime Lab and Donna
Abbott, nurse practitioner at Akron Children's Hospital. Gatlin argues that the trial court Stark County, Case No. 2011-CA-00235 14
abused its discretion when it permitted the experts’ testimony after the state had failed
to provide their qualifications twenty-one days before trial.
{¶46} Crim.R. 16(K) states the following:
(K) Expert Witnesses; Reports. An expert witness for either side shall
prepare a written report summarizing the expert witness's testimony,
findings, analysis, conclusions, or opinion, and shall include a summary of
the expert's qualifications. The written report and summary of
qualifications shall be subject to disclosure under this rule no later than
twenty-one days prior to trial, which period may be modified by the court
for good cause shown, which does not prejudice any other party. Failure
to disclose the written report to opposing counsel shall preclude the
expert's testimony at trial.
{¶47} Crim.R. 16(K) referring to the twenty-one day rule includes the phrase
“which period may be modified by the court for good cause shown, which does not
prejudice any other party.” New subsection (L)(1) is essentially a codification of the case
law favoring the trial court's discretion in fashioning remedies to satisfy justice:
(L) Regulation of discovery.
(1) The trial court may make orders regulating discovery not inconsistent
with this rule. If at any time during the course of the proceedings it is
brought to the attention of the court that a party has failed to comply with
this rule or with an order issued pursuant to this rule, the court may order
such party to permit the discovery or inspection, grant a continuance, or Stark County, Case No. 2011-CA-00235 15
prohibit the party from introducing in evidence the material not disclosed,
or it may make such other order as it deems just under the circumstances.
{¶48} Like this case, the appellant in State v. Viera, 5th Dist. No. 11
CAA020020, 2011-Ohio-5263 was provided with the report produced by the expert, but
was not provided with the expert's qualifications. In that case, this court found the trial
court maintains discretion to sanction non-disclosure by remedies other than exclusion
of the expert’s testimony.
{¶49} In the case at bar, Gatlin did not allege at trial nor does he contend on
appeal that either of the expert’s were not qualified to render the opinions which they
expressed to the jury. The trial judge gave defense counsel a copy of the expert’s
qualifications before the start of cross-examination. The court then recessed to afford
Gatlin an opportunity to review the qualifications. Gatlin did not indicate that he needed
more time or that his defense was hindered by the failure to disclose the experts’
qualifications at an earlier time.
{¶50} Given the circumstances sub judice, we find the trial court did not err in
permitting the two witnesses to testify.
{¶51} Gatlin’s second assignment of error is overruled.
III.
{¶52} In his third assignment of error, Gatlin maintains that the jury was required
to make a finding as to whether or not serious physical harm was caused or attempted
to be caused to M.J. Gatlin argues that because the jury did not make that finding he
could not be sentenced to additional time on the repeat violent offender specification. Stark County, Case No. 2011-CA-00235 16
{¶53} Penalty enhancement is allowed under R.C. 2929.14(D) once the trial
court determines an offender is a repeat violent offender. State v. Davis, 7th Dist. No.
08 MA 152, 2009-Ohio-5079.
{¶54} Pursuant to R.C. 2929.14(B)(2)(a), in addition to the longest prison term
authorized for the offense, the sentencing court may impose an additional definite
prison term of one, two, three, four, five, six, seven, eight, nine or ten years if all of the
following criteria are met:
(i) The offender is convicted of or pleads guilty to a specification of
the type described in section 2941.149 of the Revised Code that the
offender is a repeat violent offender.
(ii) The offense of which the offender currently is convicted or to
which the offender currently pleads guilty is * * * any felony of the second
degree that is an offense of violence and the trier of fact finds that the
offense involved an attempt to cause or a threat to cause serious physical
harm to a person or resulted in serious physical harm to a person.
(iii) The court imposes the longest prison term for the offense that is
not life imprisonment without parole.
(iv) The court finds that the prison terms imposed * * * are
inadequate to punish the offender and protect the public from future crime,
because the applicable factors under section 2929 .12 of the Revised
Code indicating a greater likelihood of recidivism outweigh the applicable
factors under that section indicating a lesser likelihood of recidivism. Stark County, Case No. 2011-CA-00235 17
(v) The court finds that the prison terms imposed * * are demeaning
to the seriousness of the offense, because one or more of the factors
under section 2929.12 of the Revised Code indicating that the offender's
conduct is more serious than conduct normally constituting the offense are
present, and they outweigh the applicable factors under that section
indicating that the offender's conduct is less serious than conduct normally
constituting the offense.
{¶55} In the case at bar, at the sentencing hearing defense counsel objected
stating,
Thank you, Your Honor. Your Honor, as it relates to the repeat
violent offender specification, we, of course, agree that the Court is
permitted, was permitted, to make the finding that Vincent is a repeat
violent offender. That is specified in the statute that the Court makes that
finding, and we agree that that is permissible.
However, in order for the Court to impose an additional sentence
for that repeat violent offender specification, there is an additional finding
that must be made, and that is under 2929.14(D)(2)(a).[sic.]
And, Your Honor, because Vincent was convicted of a felony three
and a felony two -- and felony two is what permits the Court to find him to
be a repeat violent offender. For a felony two, he cannot be sentenced for
a repeat violent offender specification unless there is a finding that this is
an offense of violence, which we agree felonious assault is. However, the Stark County, Case No. 2011-CA-00235 18
trier of fact must find that the offense involved an attempt to cause or
threat to cause serious physical harm to a person.
Your Honor, under State v. Foster, which we're all familiar with, as
well as the case I provided to the Court this morning, and the State, and
that is State v. Davis, 2009-Ohio-5079, the jury must make that finding as
to whether or not there is serious physical harm caused or attempted to be
caused.
The repeat violent offender specification certainly allows the Court
to sentence the Defendant in excess of the maximum penalty. And in
order for that to be done, the jury has to make that special finding to justify
that.
If this had been a felony one conviction, then there is no need for
that special finding, and we would agree that the Court could have
sentenced Vincent to additional time for the specification. Because he was
convicted of a felony two, and that special finding was not decided by or
submitted to the jury, we would ask the Court not to make any special --
or, rather, not to sentence Vincent to any time on the specification.
4T. at 423-424.
{¶56} As was true in State v. Davis,
The problem here lies in the second factor, subsection (ii), which
factor was added by 2006-H-95, effective August 3, 2006, after Foster.
This mandatory factor provides: Stark County, Case No. 2011-CA-00235 19
(ii) The offense of which the offender currently is convicted or to which the
offender currently pleads guilty is * * * any felony of the second degree
that is an offense of violence and the trier of fact finds that the offense
involved an attempt to cause or a threat to cause serious physical harm to
a person or resulted in serious physical harm to a person.
State v. Davis, supra, 2009-Ohio-5079, ¶32-33. However, in the case at bar, Gatlin was
convicted for having sexual relations with his minor stepdaughter knowing that he was
HIV-positive. This new manner of committing felonious assault was added in 2000.
State v. Gonzalez, 154 Ohio App.3d 9, 2003-Ohio-4421, 796 N.E.2d 12, ¶1 (1st Dist.)
Gatlin’s crime is inherently one of the worst forms of felonious assault because “unlike
many other serious injuries, at this point in time, there is no cure for HIV or AIDS. While
many victims of felonious assault may fully recover from the injuries of a beating, a
stabbing, or a shooting, the victim here most probably will not.” Id. at ¶131. “No doubt
exists that HIV can ultimately cause the death of a person who becomes infected....”
State v. Couturier, 10th Dist. No. 99AP-950, 2000 WL 796703 (June 22, 2000).
{¶57} In the case at bar, the jury found Gatlin engaged in sexual conduct with
his thirteen-year-old step daughter while knowing that he was HIV positive, thereby
finding at a minimum he attempted to cause serious physical harm.
{¶58} Thus, by its finding of guilty the trier of fact necessarily found that the
“offense involved an attempt to cause or a threat to cause serious physical harm to a
person or resulted in serious physical harm to a person.” Appellant’s third assignment of
error is overruled in its entirety. Stark County, Case No. 2011-CA-00235 20
CONCLUSION
{¶59} Gatlin’s first, second and third assignments of error are overruled in their
entirety, and the judgment of the Court of Common Pleas, Stark County, Ohio, is
affirmed.
By Gwin, J.,
Delaney, P.J., and
Edwards, J., concur
_________________________________ HON. W. SCOTT GWIN
_________________________________ HON. PATRICIA A. DELANEY
_________________________________ HON. JULIE A. EDWARDS
WSG:clw 0618 [Cite as State v. Gatlin, 2012-Ohio-3226.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : VINCENT D. GATLIN, SR. : : : Defendant-Appellant : CASE NO. 2011-CA-00235
For the reasons stated in our accompanying Memorandum-Opinion, the judgment
of the Court of Common Pleas, Stark County, Ohio, is affirmed. Costs to appellant.