[Cite as State v. McDaniel, 2020-Ohio-489.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 108282 v. :
ARTHUR MCDANIEL, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: February 13, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-633120-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Kelly N. Mason, Assistant Prosecuting Attorney, for appellee.
Thomas Rein, for appellant.
KATHLEEN ANN KEOUGH, J.:
Defendant-appellant, Arthur McDaniel, appeals from his convictions
for rape, sexual battery, gross sexual imposition, and kidnapping. He contends that
(1) his convictions were not supported by sufficient evidence and were against the
manifest weight of the evidence, (2) the trial court committed reversible error because it failed to inquire of him whether he wanted to testify, (3) he was denied
his right to effective assistance of counsel, and (4) the trial court failed to make the
requisite statutory findings to impose consecutive sentences. Finding no merit to
the appeal, we affirm.
I. Background
McDaniel was indicted in a 28-count indictment that charged him
with rape, attempted rape, sexual battery, attempted sexual battery, gross sexual
imposition, kidnapping, and disseminating matter harmful to juveniles, all relating
to incidents involving his stepdaughters, L.B. and M.B. McDaniel pleaded not guilty,
and the matter proceeded to trial. After the presentation of the state’s case, the court
granted McDaniel’s Crim.R. 29 motion for acquittal in part and dismissed Count 15,
disseminating matter harmful to juveniles.
The jury found McDaniel guilty of five counts of rape, three counts of
sexual battery, one count of gross sexual imposition, and one count of kidnapping
involving L.B.; the jury found that L.B. was under the age of 13 at the time of two of
the sexual batteries, and that McDaniel committed the kidnapping with a sexual
motivation. The jury further found on one of the rape counts that L.B. was under
age 13 but older than 10, and that McDaniel purposely compelled her to submit by
force or threat of force.
The jury found McDaniel guilty of three counts of rape, four counts of
gross sexual imposition, and one count of kidnapping involving M.B. After a hearing on the sexually violent predator specification attendant to several counts; the jury
found that McDaniel is not a sexually violent predator.
At sentencing, the trial court sentenced McDaniel to an aggregate
concurrent prison sentence of a minimum term of 25 years and a maximum term of
life imprisonment on all counts except Count 18. The court ordered that Count 18
(a prison term of 10 years for the rape of M.B.) be served consecutive to the total
aggregate term, thus making McDaniel eligible for parole no earlier than 35 years
after he begins serving his sentences. This appeal followed.
II. Trial Testimony and Evidence
L.B., who was 23 years old at the time of trial, testified that her mother
and biological father divorced when she was in the fourth grade. She said that she,
her mother D.M., her sister M.B., and her brother M. moved to an apartment in
Richmond Heights, and McDaniel began living with them when she was in the sixth
grade. She said that her mother worked a full-time job from 7 a.m. to 3 p.m. and a
part-time job from 5 p.m. to 9 p.m., and that McDaniel, who was unemployed,
stayed at home to care for her and her siblings.
L.B. testified that the first incident of abuse happened when she was
12 years old. She said that she and McDaniel were sitting on the couch in the living
room when he put his hand inside her jeans, touched her genitals, and penetrated
her vagina with his fingers. L.B. said that similar incidents began happening “pretty
much any chance he got,” but she did not tell anyone because she was scared. She testified that McDaniel told her “he felt a special connection” to her and “that it was
something we should keep between ourselves.”
L.B. testified that the family moved to a house in Cleveland Heights
the summer before she began seventh grade, and that McDaniel continued to
penetrate her vagina with his fingers “almost every day.” She said the incidents
occurred mostly in McDaniel’s bedroom and sometimes in her room, and that M.B.
and M. would be in their rooms or watching TV when the incidents occurred.
L.B. testified that when she was 13 years old, the family moved to a
three-bedroom apartment in Mayfield Heights. L.B. said that her mother was still
working two jobs, and McDaniel was still unemployed, and the abuse escalated to
vaginal intercourse and oral sex. L.B. testified that the first time McDaniel
performed oral sex on her, she was in his bedroom and McDaniel removed her
clothes and pushed her on the bed. L.B. said that she told McDaniel she did not
want him to perform oral sex on her but he “was resistant in a way, to a point where
it was like I can’t move.” She said she gave in because she did not know if McDaniel
would hurt her if she resisted further. L.B. said that after the first incident of oral
sex, McDaniel began performing oral sex on her “almost every day.” She said that
McDaniel also forced her to perform oral sex on him.
L.B. testified that McDaniel told her that he was using the sexual
activity with her to “groom” her to be a “better sexual partner to boys” because boys
would not “like a girl who’s a prude or doesn’t have experience.” She said she was
14 years old the first time McDaniel had vaginal intercourse with her, and after that incident, McDaniel continued to sexually assault her vaginally “almost every day.”
She did not tell anyone about the abuse, however, because McDaniel told her that it
would “ruin” their family if she told anyone, and her mother “would be very upset.”
L.B. said that the last sexual abuse occurred when she was 16 years
old. She said she “got fed up,” told McDaniel she was “not doing this anymore,” and
ran out of the bedroom and locked herself in a bathroom. She said that McDaniel
did not approach her again until she was 18 years old, when she again rebuffed him.
L.B. testified that she suspected that McDaniel was also abusing M.B.
She said that she and M.B. shared a bedroom, with L.B. in the top bunk. She said
that McDaniel would tell their mother he was going to tell her and M.B. a bedtime
story, and would then come in their room and sexually assault them while he was
talking. L.B. and M.B. never spoke with each other about the incidents, however.
L.B. testified that she moved out of the house when she was 18 years
old, and began mental health counseling in 2016 because she was feeling suicidal.
She said she did not tell anyone other than her therapist about the abuse until 2018,
when she finally decided to confront McDaniel after a particularly upsetting therapy
session. She said she texted McDaniel, who refused to acknowledge responsibility.
L.B. said that several days later, she told her mother, D.M., and M.B. what McDaniel
had done, and within two weeks of that conversation, she reported the abuse to law
enforcement.
M.B., who was 22 years old at the time of trial, testified that McDaniel
also sexually abused her when she was a child. She recalled that the abuse started after the family moved to Richmond Heights, when she was in the second grade.
She said that McDaniel would inappropriately touch her buttocks and lower back
while he hugged her. She said she asked him to stop and tried to get away but could
not.
M.B. did not recall any specific instances of abuse while the family
lived in Cleveland Heights. She said the family moved to an apartment in Mayfield
Heights when she was eleven years old and in the sixth grade. She recalled an
incident in that apartment where McDaniel called her into the living room and told
her it was time that she learn “about touch and courage and how to have passion
when you start getting with boys.” She said that one or two days later, McDaniel
called her into his bedroom, lay next to her on the bed, and touched her genitals over
her clothes. M.B. said the touching escalated to touching her under her clothes, and
then progressed to McDaniel performing oral sex on her and forcing her to perform
oral sex on him. M.B. said McDaniel would also penetrate her vagina with his
fingers, and twice attempted to perform vaginal intercourse with her. M.B. testified
that the abuse occurred “almost every day after school” when her mother was not
home. She said that she told McDaniel multiple times to stop and tried to resist, but
he would “keep going.”
M.B. testified that the family moved to a house in Mayfield Heights
when she was 16 or 17, where the abuse continued but not as frequently as before.
After graduating from high school, M.B. left home to attend Kent State University.
She said she started therapy while attending Kent State and finally told her therapist about the abuse after she was diagnosed with depression and PTSD. She said she
never told anyone about the abuse while it was happening because McDaniel told
her their family would “fall apart” if she told anyone and her mother would be very
hurt.
M.B. testified that she had a “vague idea” that McDaniel was also
abusing L.B., but she and L.B. never talked about it. She said she once walked by
the dining room and saw L.B. sitting on McDaniel’s lap, straddling him, as they held
each other. She recalled another incident where she woke up to McDaniel standing
in her and L.B.’s bedroom; McDaniel’s hands “were up in L.B.’s bed” and M.B. heard
“small tiny noises.” She testified that when she jumped out of her bed, McDaniel
hurriedly pulled his hands back, told M.B. he did not know that she was awake, and
left the room. M.B. testified that the first time she and L.B. talked about the abuse
was when they met with their mother several days after L.B. confronted McDaniel
by text.
Both L.B. and M.B. testified that they considered McDaniel, who
married their mother in 2010, to be their stepfather while they were growing up.
They also both testified that they no longer have any relationship whatsoever with
their mother because she refused to believe their allegations about McDaniel.
G.J., McDaniel’s 25-year-old biological daughter, testified that she
spoke with McDaniel in March 2018 about L.B. and M.B.’s allegations. She said that
McDaniel told her “there were temptations.” G.J. testified that when she started
crying during the conversation, McDaniel told her, “I’m sorry.” A.R. ─ L.B., M.B., and M.’s stepsister ─ testified that she texted her
mother, D.M., after learning about the abuse allegations, and McDaniel texted her
back. A.R. testified that state’s exhibit Number 2 was an accurate photograph of the
screen shot of the text from McDaniel. The text stated:
[A.] please help to stop this, don’t be a part of this in the wrong way. Your mother could have a stroke or a heart attack from all of this. She has been told the truth and we just want to let this family heal and stop all of this hate. I am very very truly sorry! My wife and I love each other so much and she has forgiven me. But we hurt I hurt and suffer badly! We have church counseling, we have professional counseling, please help us stop all of this please, please, please [A.] I beg of you please! If you ever loved your mother and I, or if you ever loved your mother please stand by what she wants to see happen. She needs you to help[] I need you to help! I am so sorry OMG! I am sorry! I love this family, we pray every day.
Love, Mac
A.R. testified that she knew the text came from McDaniel because she
recognized his cell phone number and “Mac” was his nickname. She said that
despite McDaniel’s text, she went to the police station with L.B. to support her when
she reported the abuse allegations to law enforcement.
During her testimony, D.M. identified her and McDaniel’s voices on
several jail recordings of telephone calls between her and McDaniel. D.M. agreed
that in one call (state’s exhibit No. 4), McDaniel told her to “tell them I’m sorry.” In
another call (state’s exhibit No. 6), McDaniel told D.M., “God bless L.B. and M.B.
and M. and everybody so they can have mercy in their heart for me and forgive me.” III. Law and Analysis
A. Sufficiency and Manifest Weight of the Evidence
In his first assignment of error, McDaniel contends that the trial court
erred in denying his Crim.R. 29(A) motion for acquittal because there is insufficient
evidence to support his convictions. In his second assignment of error, he contends
that his convictions are against the manifest weight of the evidence.
The test for sufficiency requires a determination of whether the
prosecution met its burden of production at trial. State v. Bowden, 8th Dist.
Cuyahoga No. 92266, 209-Ohio-3598, ¶ 12. The relevant inquiry is whether, after
viewing the evidence in a 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. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541
(1997).
A manifest weight challenge, on the other hand, questions whether
the state met its burden of persuasion. State v. Hill, 8th Dist. Cuyahoga No. 98366,
2013-Ohio-578, ¶ 32. To determine whether a conviction is against the manifest
weight of the evidence, the reviewing court must look at the entire record, weigh the
evidence and all reasonable inferences, consider the credibility of the witnesses, and
determine whether in resolving conflicts in the evidence, the trier of fact clearly lost
its way and created such a manifest miscarriage of justice that the conviction must
be reversed and a new trial ordered. Thompkins at 388. McDaniel was convicted of rape in violation of R.C. 2907.02(A)(1)(b),
which provides that “[n]o person shall engage in sexual conduct with another who
is not the spouse of the offender when the other person is less than thirteen years of
age,” and R.C. 2907.02(A)(2), which provides that “[n]o person shall engage in
sexual conduct with another when the offender purposely compels the other person
to submit by force or threat of force.”1
He was also convicted of sexual battery in violation of R.C.
2907.03(A)(5), which provides that “[n]o person shall engage in sexual conduct with
another, not the spouse of the offender, when the offender is the other person’s * *
* stepparent.”
McDaniel was also convicted of gross sexual imposition in violation
of R.C. 2907.05(A)(1) and (4), which provide that “[n]o person shall have sexual
contact with another, not the spouse of the offender; cause another, not the spouse
of the offender, to have sexual contact with the offender * * * when (1) the offender
purposely compels the other person * * * to submit by force or threat of force or (4)
the other person * * * is less than thirteen years of age * * *.”2
1 “Sexual conduct” contemplates vaginal or anal intercourse, oral sex, or without privilege to do so, the insertion of any part of the body or other object into the vaginal or anal opening of another. See R.C. 2907.01(A). 2 “Sexual contact” means “any touching of an erogenous zone of another, including without limitation, the thigh, genitals, buttock, [or] pubic region * * * for the purpose of sexually arousing or gratifying either person.” R.C. 2907.01(B). He was also convicted of kidnapping in violation of R.C.
2905.01(A)(4), which provides that “[n]o person, by force, threat, or deception, or
in the case of a victim under the age of thirteen, shall remove another from the place
where the other person is found or restrain the liberty of the other person, to engage
in sexual activity with the victim against the victim’s will.”3
McDaniel contends that his convictions for rape, sexual battery, and
gross sexual imposition were against the manifest weight of the evidence and not
supported by sufficient evidence because “there simply is not the requisite evidence
that [he] committed these sexual acts” and “there is no physical evidence of this
happening.” With respect to the kidnapping convictions, McDaniel contends that
there is no evidence that he removed L.B. and M.B. from where they were or
restrained their liberty.
Viewing the evidence in a light most favorable to the prosecution, we
find L.B. and M.B.’s testimony sufficient to establish the elements of rape, sexual
battery, gross sexual imposition, and kidnapping. L.B. testified that McDaniel had
forced vaginal intercourse with her, and both women testified that McDaniel
penetrated them vaginally with his fingers, performed oral sex on them, and forced
them to perform oral sex on him, all over their objection. L.B. and M.B.’s testimony
was sufficient to fall within the ambit of sexual conduct and sexual contact
contemplated by R.C. 2907.01(A) and (B), and was sufficient to establish that
3 “Sexual activity” means sexual conduct, sexual contact, or both. R.C. 2907.01(C). McDaniel purposely compelled them by force or threat of force to engage in such
conduct, in some instances while they were less than 13 years old.
Furthermore, despite McDaniel’s argument that there is no physical
evidence to support his convictions, “Ohio courts have consistently held that a
victim’s testimony, if believed, is sufficient to support a rape conviction. There is no
requirement that a rape victim’s testimony be corroborated as a condition precedent
to conviction.” State v. Patterson, 8th Dist. Cuyahoga No. 104266, 2017-Ohio-1444,
¶ 23, citing State v. Williams, 8th Dist. Cuyahoga No. 92714, 2010-Ohio-70, ¶ 32.
With respect to McDaniel’s argument that there was no evidence that
he ever restrained L.B. or M.B.’s liberty sufficient to sustain his convictions for
kidnapping, L.B. testified that she gave in to McDaniel’s demand for oral sex after
McDaniel pushed her down on the bed such that she could not move and was
worried he might hurt her if she resisted further. M.B. testified that she tried to
resist McDaniel during the many incidents of abuse but he would “keep going.”
Further, this court has specifically held in relation to kidnapping that
“a child’s liberty may be restrained through the inherent social/psychological
pressures that accompany” an adult-child familial relationship.” State v. Zimmer,
8th Dist. Cuyahoga No. 104946, 2017-Ohio-4440, ¶ 15. Both L.B. and M.B. testified
that they considered McDaniel to be their stepfather and that he told them to keep
the abuse secret because it would ruin their family and upset their mother if they
told anyone. Accordingly, the evidence demonstrates that McDaniel restrained L.B.
and M.B.’s liberty by psychological pressure inherent in his position as their stepfather. Furthermore, this court has found that the elements of rape and
kidnapping have ‘“such a singularity of purpose and conduct that kidnapping may
be said to be implicit within every forcible rape.”’ Williams at ¶ 33, quoting State v.
Mitchell, 6 Ohio St.3d 416, 418, 453 N.E.2d 593 (1983).
Accordingly, we find that McDaniel’s convictions are supported by
sufficient evidence. We also find that they are not against the manifest weight of the
evidence. Although we review credibility when considering the manifest weight of
the evidence, we are cognizant that the weight to be given the evidence and the
credibility of the witnesses are primarily matters for the trier of fact to decide. State
v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). The trier of fact has the
authority to “believe or disbelieve any witness or accept part of what a witness says
and reject the rest.” State v. Antill, 176 Ohio St.61, 67, 197 N.E.2d 548 (1964). Thus,
an appellate court will overturn a criminal conviction due to the manifest weight of
the evidence only in extraordinary circumstances where the evidence presented at
trial weighs heavily against the conviction. Thompkins at 388.
This is not that exceptional case. Indeed, despite defense counsel’s
argument to the jury that the events described by L.B. and M.B. simply “didn’t
happen” and that McDaniel “didn’t do it,” McDaniel’s own words established that
he sexually abused his stepdaughters. In his text to A.R., sent to D.M. after A.R.
learned of the abuse allegations, McDaniel advised A.R. that he had told D.M. “the
truth” and that he was “very very truly sorry” for what had happened. In his
conversation with G.J. about the abuse allegations, McDaniel admitted “there were temptations” and told her he was sorry for what had happened. In his telephone
conversations with D.M. while he was in jail, McDaniel instructed D.M. to tell L.B.,
M.B., and M. that he was “sorry” and further, asked God to “bless L.B., M.B., and M.
and everybody so they can have mercy in their heart for me and forgive me.” The
only reasonable conclusion from McDaniel’s admissions that he was sorry and his
pleas for mercy and forgiveness from his victims is that he did indeed commit the
crimes he was accused of.
We are not persuaded by McDaniel’s argument that “it defies
common sense” to believe that the abuse happened because L.B. and M.B. never told
anyone about the abuse, even though it continued for years. Theresa Kaufmann, a
crisis intervention specialist at mental health agency Frontline Services, testified
that she met with L.B. after she called Frontline’s crisis hotline. She said that L.B.
reported being sexually abused by McDaniel from the ages of 12 to 16. Kaufmann
testified further that it is “quite common” for sexual abuse victims, especially child
sexual abuse victims, to not report the abuse because the abusers manipulate them
and “tell all kind of things” so they will not disclose. Kaufmann testified that she has
had 60-year-old clients who report sexual abuse for the first time to her. Thus, L.B.
and M.B.’s failure to report the abuse until they were adults does not demonstrate
that the abuse did not happen.
The jury did not lose its way in convicting McDaniel of rape, sexual
battery, gross sexual imposition, and kidnapping, nor is this the exceptional case where the evidence weighs heavily against the convictions. The first and second
assignments of error are overruled.
B. Inquiry by the Court Regarding McDaniel’s Right to Testify
In his third assignment of error, McDaniel asserts that he was denied
his due process rights because the trial court did not inform him of his right to testify
in his defense and inquire of him whether he wished to exercise that right.
McDaniel’s argument is without merit.
“A trial judge is not required to conduct an inquiry with the defendant
about the decision whether to testify.” State v. Bey, 85 Ohio St.3d 487, 497, 709
N.E.2d 484 (1999); State v. Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, 926 N.E.2d
1239. Accordingly, having determined there is no duty to make such an inquiry, the
trial court’s failure to advise McDaniel of his right to testify cannot be error. The
third assignment of error is overruled.
C. Ineffective Assistance of Counsel
At sentencing, McDaniel advised the judge that the court had not
“hear[d] the truth” because he “never got a chance to take the stand,” and that
defense counsel did not present photographs and videos at trial that would have
allegedly proved his innocence. Citing these statements, in his fourth assignment of
error, McDaniel contends that his counsel was ineffective because his counsel failed
to “affirmatively assert on the record” that McDaniel did not wish to testify, and
failed to “affirmatively mount a defense.” To establish ineffective assistance of counsel, a defendant must
demonstrate that counsel’s performance fell below an objective standard of
reasonable representation and that he was prejudiced by that performance. State v.
Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 205, citing
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Prejudice is established when the defendant demonstrates “a reasonable probability
that but for counsel’s unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland at 694. In evaluating a claim of ineffective
assistance of counsel, a court must be mindful that there are countless ways for an
attorney to provide effective assistance in a given case and it must give great
deference to counsel’s performance. Id. at 689.
We find no ineffective assistance of counsel. First, defense counsel
was not ineffective for not affirmatively stating on the record that McDaniel did not
want to testify. Other than McDaniel’s self-serving statement at sentencing that the
court had not heard the truth because he did not take the stand, there is nothing in
the record indicating that McDaniel wanted to testify. When defense counsel
informed the court that the defense had no witnesses to present, McDaniel made no
objection whatsoever to counsel’s statement. Thus, we cannot conclude that counsel
was ineffective for not affirmatively stating to the court that McDaniel had waived
his right to testify. Furthermore, despite McDaniel’s contention otherwise, the record
reflects that his counsel “affirmatively mounted a defense.” Counsel gave opening
and closing arguments that asserted McDaniel’s innocence, and he vigorously cross-
examined the state’s witnesses during trial. Although McDaniel asserted at
sentencing that defense counsel failed to present photographs and videos that would
have allegedly proven his innocence, the record reflects that no photographs or
videos were ever produced by McDaniel during discovery and, therefore, they would
not have been admissible at trial. Accordingly, counsel’s performance did not fall
below an objective standard of reasonable representation.
Furthermore, McDaniel fails to demonstrate that he was prejudiced
by counsel’s allegedly defective performance and that but for counsel’s defective
performance, the result of the trial would have been otherwise. This is undoubtedly
because the evidence against him, which included statements he made to his wife in
which he apparently admitted his guilt, was overwhelming. McDaniel’s counsel was
not ineffective, and the fourth assignment of error is overruled.
D. Consecutive Sentences
McDaniel’s fifth assignment of error asserts that the trial court did
not make the requisite statutory findings to impose consecutive sentences.
Consecutive sentences may be imposed only if the trial court makes
the required findings pursuant to R.C. 2929.14(C)(4). State v. Bonnell, 140 Ohio
St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 20-22. The court must both make the statutory findings under R.C. 2929.14(C)(4) at the sentencing hearing and
incorporate those findings into its sentencing entry. Id. at the syllabus.
Despite raising the trial court’s failure to make the requisite statutory
findings as an assignment of error, McDaniel concedes in his appellate brief that the
trial court both made the required findings for the imposition of consecutive
sentences at the sentencing hearing and incorporated those findings into its journal
entry of sentencing. Our review of the record demonstrates likewise. Accordingly,
the fifth assignment of error is overruled.
Affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
convictions having been affirmed, any bail pending appeal is terminated. Case
remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
ANITA LASTER MAYS, P.J., and FRANK D. CELEBREZZE, JR., J., CONCUR