[Cite as State v. Neal, 2016-Ohio-64.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HOCKING COUNTY
STATE OF OHIO, : Case No. 15CA1
Plaintiff-Appellee, :
v. : DECISION AND JUDGMENT ENTRY TERRY E. NEAL, :
Defendant-Appellant. : RELEASED: 1/6/2016
APPEARANCES:
Ryan Shepler, Kernen & Shepler, LLC, Logan, Ohio, for appellant.
Laina R. Fetherolf, Hocking County Prosecuting Attorney, and William L. Archer, Jr., Hocking County Assistant Prosecuting Attorney, Logan, Ohio, for appellee. Harsha, J. {¶1} After a jury convicted Terry E. Neal of four counts of unlawful sexual
conduct with a minor, the court sentenced him to an aggregate 16-year prison sentence.
Now Neal asserts that his conviction on Count V of the indictment is not supported by
the evidence. We agree. Because the state did not present sufficient evidence that the
offense occurred within the time frame alleged in Count V, i.e. “on or about the 10th day
of June, 2013,” we reverse that conviction for unlawful sexual conduct with a minor.
Because we sustain Neal’s first assignment of error, his alternative argument that his
trial counsel was ineffective for failing to timely move for judgment of acquittal on this
count is moot.
{¶2} Next Neal contends that the failure of the state to provide a more specific
date to Count XIV of the indictment violated his right to due process. Although that
count alleged that Neal committed the offense of unlawful sexual conduct with a minor Hocking App. No. 15CA1 2
“sometime between the 22nd day of November, 2012 and the 25th day of December,
2012,” the victim and a witness specified at trial that the offense occurred on
Thanksgiving night, November 22, 2012. The lack of specificity in the indictment did not
result in a due process violation because Neal denied any sexual conduct whatsoever
with the victim, did not raise an alibi defense, and the evidence established the date of
the offense within the time period alleged. We reject Neal’s second assignment of error.
{¶3} Neal also claims that the admission of evidence about the invocation of his
right to counsel violated his Fifth Amendment rights, and his trial counsel’s failure to
object to that evidence constituted ineffective assistance. Neal did not establish plain
error under the Fifth Amendment even though it appears that the state’s comments and
argument were improper. Neal cannot establish a reasonable probability that the
outcome of the trial would have been different in light of the overwhelming evidence,
including the testimony of the child victim, corroborating witnesses, and the child’s DNA
found on the underwear that Neal was wearing during two of the offenses upon which
he was convicted. Likewise, trial counsel’s failure to object did not amount to ineffective
assistance due to lack of prejudice. We reject his third assignment of error.
{¶4} Next Neal argues that his four convictions for unlawful sexual conduct with
a minor were against the manifest weight of the evidence. Our disposition of his first
assignment of error renders Neal’s manifest-weight argument moot for Count V.
However, on his remaining three convictions the state introduced the testimony of the
victim, witnesses, and DNA evidence that Neal engaged in oral, anal, and vaginal sex
with the minor victim in separate incidents. Based on this evidence the jury properly
found the essential elements of the crimes proven beyond a reasonable doubt. Because Hocking App. No. 15CA1 3
the jury did not clearly lose its way or create a manifest miscarriage of justice, we reject
Neal’s fourth assignment of error.
{¶5} Next Neal asserts that the trial court erred by failing to merge Counts IX
and X of the indictment, which referred to two crimes occurring on the same date.
However, the offenses were committed separately and with separate animus—the first
offense was anal intercourse that was interrupted when the victim’s brother walked in.
And the second offense was vaginal intercourse that happened after the passage of a
significant amount of time and the occurrence of unrelated conduct. Therefore, the trial
court properly convicted and sentenced Neal for both offenses. We reject Neal’s fifth
assignment of error.
{¶6} Next Neal contends that the trial court erred in sentencing him to
consecutive terms of incarceration for his convictions. Because the trial court made the
requisite findings mandated by R.C. 2929.14(C)(4) at its sentencing hearing,
incorporated its findings into its sentencing entry, and the record supports those
findings, we reject Neal’s sixth assignment of error.
{¶7} Finally, Neal claims that the trial court’s order permitting the sheriff to use
all necessary restraints was unjustified and violated his right to due process. Because
the record contains no evidence that the restraints were visible to the jurors, caused
Neal any physical discomfort, or interfered with Neal’s ability to testify or communicate
with his trial counsel, we reject Neal’s seventh assignment of error.
{¶8} We sustain Neal’s first assignment of error, reverse his conviction for
unlawful sexual conduct with a minor as charged in Count V of the indictment, and
remand the cause to the trial court to discharge him on that count. We overrule Neal’s Hocking App. No. 15CA1 4
remaining assignments of error and affirm the remainder of his convictions and
sentence.
I. FACTS
{¶9} The Hocking County Grand Jury returned an indictment charging Terry E.
Neal with five counts of sexual battery, five counts of unlawful sexual conduct with a
minor, and five counts of gross sexual imposition. Counts I, II, and III charged Neal with
sexual battery, unlawful sexual conduct with a minor, and gross sexual imposition for an
incident involving Neal and H.G., a minor, “sometime between the 1st day of January,
2013 and the 1st day of April, 2013.” Counts IV, V, and VI charged Neal with sexual
battery, unlawful sexual conduct with a minor, and gross sexual imposition for an
incident involving Neal and H.G., a minor, “on or about the 10th day of June, 2013.”
Counts VII, VIII, IX, X, XI, and XII charged Neal with two counts each of sexual battery,
gross sexual imposition, and unlawful sexual conduct with a minor for incidents
involving Neal and H.G., a minor, “on or about the 13th day of June, 2013.” Counts XIII,
XIV, and XV charged Neal with sexual battery, unlawful sexual conduct with a minor,
and gross sexual imposition “sometime between the 22nd day of November, 2012 and
the 25th day of December 2012.” At his arraignment Neal entered a plea of not guilty to
the charges. Neal’s trial counsel requested a bill of particulars setting forth more
specifically the nature of the offenses charged, but the state did not respond.
{¶10} Prior to trial Neal filed a motion to permit him to appear in civilian clothing
and without restraints at all proceedings. The trial court granted the motion in part but
denied it in part. The trial court permitted Neal to appear at all future hearings, including
trial, in non-jail clothing. However, the trial court permitted the sheriff to use all Hocking App. No. 15CA1 5
necessary restraints, with the sheriff required “to ensure, as much as possible, that the
jury does not see [Neal] in restraints.”
{¶11} When the case proceeded to a jury trial the evidence established that H.G.
was born in September 1999. After living with relatives because her mom had
substance-abuse problems and experienced financial difficulties, H.G. moved back with
her mother in an apartment on West Second Street in Logan. H.G., her mother, her
brother A.G., and her mother’s boyfriend, Neal, lived at the apartment. According to
H.G., she initially had a crush on Neal and flirted with him. Neal reciprocated by telling
her she was beautiful and providing her with cigarettes, alcohol, and marijuana although
she was only 12 at the time.
{¶12} Sometime between February and April 2012, H.G. came home from
school and Neal told her to come into the bedroom he shared with her mother. He then
told her to pull down her shorts and bend over and when she did, he inserted his penis
in her vagina. Neal then stopped because he thought he heard someone calling down
the hallway. When they returned to the living room, Neal sat beside H.G. and advised
her that if she told anyone what had happened, he would kill her and then her family.
This frightened H.G. because Neal often got drunk and had physical altercations with
her family, including frequently beating up her mother. According to one of H.G.’s
brothers, G.G., Neal hit their mother about every other day.
{¶13} The next incident occurred on Thanksgiving, November 22, 2012 at the
West Second Street apartment in Logan after her mom went outside, her brother left,
and her friend Chelsie went to the kitchen to get something to eat. H.G. was sitting on
the couch when Neal stood up and told her to perform oral sex on him. She complied, Hocking App. No. 15CA1 6
but Neal stopped when her mother returned. Chelsie corroborated H.G.’s account,
testifying that from the kitchen she witnessed H.G. performing oral sex on Neal in the
living room on Thanksgiving 2012.
{¶14} According to H.G. the next occurrence happened after they had been
evicted from the West Second Street apartment and had moved to a Zanesville Avenue
apartment in Logan. She did not recall the date, but she thought it occurred in 2013 and
that it was snowing in the beginning that day. On this date her mother had passed out
drunk in the dining room and Neal’s brother had left the living room to get himself
something to eat, leaving Neal alone with H.G. in the living room. Neal told H.G. to pull
down her pants and when she did, he stuck his penis in her vagina. When Neal’s
brother returned, he asked Neal to let him “get some,” but Neal told him to wait his turn.
Neal stopped when H.G.’s mother started coughing and woke up in the dining room.
{¶15} The final two occurrences happened on June 13, 2013 in the Zanesville
Avenue apartment. At that time, H.G., her mother, her brothers G.G. and A.G., an
unrelated female, and Neal lived there. Neal and H.G. were in the front room when
H.G.’s mother passed out on the couch and the others left for their rooms. Neal came
over to the love seat where H.G. was sitting and told her to pull down her shorts and
bend over. After she did so, Neal stuck his penis in her anus until G.G. walked out of
his bedroom and asked them if they wanted pizza. H.G. testified that the intercourse
hurt. G.G. confirmed that when he came out of the bedroom and into the front room
that night, both Neal and H.G. jumped up from the love seat and he knew something
was going on between them, but wasn’t certain exactly what. A Christy’s Pizza Hocking App. No. 15CA1 7
manager confirmed that the store delivered pizza on the evening of June 13, 2013 to
the Zanesville Avenue residence.
{¶16} After they ate the pizza G.G. and his girlfriend returned to their room and
A.G. returned to his bedroom. Neal told H.G. to bend over again and he stuck his penis
in her vagina. H.G. identified the white shorts she was wearing as well as the blue
boxer shorts that Neal was wearing on that date.
{¶17} H.G. testified that the police investigated a report of sexual activity
between her and Neal in February 2013, but at that time H.G. denied any sexual
conduct with Neal because she was scared and wanted to protect herself. A couple
days after the June 13 incidents, however, the police arrested Neal for assaulting H.G.’s
mother, resulting in a domestic-violence charge that he ultimately pleaded guilty to. A
few days later, on June 18, 2013, H.G. and her mother reported the sexual incidents
involving Neal and H.G. to the police. The Ohio Bureau of Criminal Investigation (“BCI”)
tested the white shorts and blue boxer shorts that H.G. identified as the shorts she wore
and the boxer shorts Neal wore when he had anal and vaginal intercourse with her on
June 13, 2013. BCI found H.G.’s DNA on both her shorts and on Neal’s boxer shorts.
{¶18} At the conclusion of the state’s case-in-chief, the state moved to amend
Counts I, II, and III of the indictment to conform to the evidence that the incident
occurred between February 1, 2012 and April 1, 2012 instead of the specified period
between January 1, 2013 and April 1, 2013. Neal’s trial counsel requested that the
motion be denied and that these charges be dismissed for lack of proof that the
offenses occurred during the charged time period. The trial court took the matter under
advisement, and the defense proceeded with its case. Hocking App. No. 15CA1 8
{¶19} Neal was the only witness who testified for the defense. He claimed that
he never had any sexual conduct with H.G. He also denied that the blue boxer shorts
were his. He claimed that he was wearing a different pair of blue underwear on June
13, 2013 when the last sexual incidents with H.G. were alleged to have occurred. He
further testified that H.G., her brother G.G., and her friend Chelsie were all lying. Neal
conceded that he ended up pleading guilty to domestic-violence charges involving
H.G.’s mom and brother.
{¶20} At the conclusion of the evidence the trial court granted Neal’s motion to
dismiss Counts I, II, and III. Those counts involved the incident that the indictment had
charged as having occurred between January 1, 2013 and April 1, 2013, but the
evidence established occurred between February 1, 2012 and April 1, 2012. The jury
returned verdicts finding Neal guilty of the four remaining counts charging him with
unlawful sexual conduct with a minor—Counts V, IX, X, and XIV—and found him not
guilty of the remaining counts.
{¶21} At sentencing Neal filed a motion to set aside his conviction on Count V
because there was no evidence presented at trial that he committed the offense of
unlawful sexual conduct with a minor on the charged date of June 10, 2013. The trial
court denied the motion because it was untimely. The court sentenced Neal to prison
terms of four years for each of his four convictions and ordered that they be served
consecutively to each other. This appeal followed.
II. ASSIGNMENTS OF ERROR
{¶22} Neal assigns the following errors for our review:
1. The conviction on Count V of the indictment is not supported by the evidence presented at trial. Hocking App. No. 15CA1 9
a. The evidence presented at trial is insufficient to prove each element of the offense beyond a reasonable doubt.
b. Trial counsel’s failure to timely move for a judgment of acquittal pursuant to Crim.R. 29 on Count V of the indictment constitutes ineffective assistance of counsel, which prejudiced the defendant.
2. The failure of the State to provide a more specific date to [C]ount XIV of the indictment violates the defendant’s right to due process.
3. The admission of evidence relating to defendant’s invocation of his right to counsel prejudiced the jury, and failure to object to that evidence constitutes ineffective assistance of counsel.
4. The convictions on Count V, Count IX, Count X, and Count XIV are against the manifest weight of the evidence.
5. The trial court erred in failing to merge for sentencing Count IX and Count X of the indictment.
6. The trial court erred in sentencing the defendant to consecutive terms of incarceration for the convictions.
7. The trial court’s order permitting the Sheriff to use all necessary restraints was not justified by the record, and violated Mr. Neal’s right to due process.
III. LAW AND ANALYSIS
A. Count V: Sufficiency of the Evidence
{¶23} In his first assignment of error Neal asserts that his conviction on Count V
of the indictment is not supported by sufficient evidence.1 “When a court reviews a
record for sufficiency, ‘[t]he 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. Maxwell,
1Although the trial court denied the motion as untimely, the state does not raise this issue in its appellate brief. Therefore, we do not consider that basis for denying the motion. Hocking App. No. 15CA1 10
139 Ohio St.3d 12, 2014–Ohio–1019, 9 N.E.3d 930, ¶ 146, quoting State v. Jenks, 61
Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus; Jackson v.
Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The court does not
determine credibility or weigh the evidence, but simply decides whether the evidence, if
believed, satisfied the requirements of a prima facie case. See, e.g., State v. Wray, 4th
Dist. Gallia No. 00CA08, 2001 WL 243488, *1 (Jan. 2, 2001); see also State v. Kirkland,
140 Ohio St.3d 73, 2014–Ohio–1966, 15 N.E.3d 818, ¶ 132.
{¶24} “An indictment charging sexual offenses against children ‘need not state
with specificity the dates of alleged abuse, so long as the prosecution establishes that
the offense was committed within the time frame alleged.’ ” (Emphasis added.) State v.
Czech, 8th Dist. Cuyahoga No. 100900, 2015-Ohio-1536, ¶ 14, quoting State v Yaacov,
8th Dist. Cuyahoga No. 86674, 2006-Ohio-5321, ¶ 17. Ohio courts have repeatedly
recognized that the time and date of an offense is ordinarily not required in an
indictment, but the state must still establish that the offense charged occurred within a
reasonable time in relation to the dates fixed in the indictment. State v. McIntire, 6th
Dist. Huron No. H-13-018, 2015-Ohio-1057, ¶ 42, citing State v. Dodson, 12th Dist.
Butler No. CA2010-08-191, 2011-Ohio-6222, ¶ 40. We agree. See State v. Green, 4th
Dist. Ross No. 04CA2760, 2004-Ohio-5089, ¶ 16 (“the prosecution was not required to
prove the exact date of the offense because the date is not an element of the offense.
However, the prosecution is required to prove beyond a reasonable doubt that the
incident occurred within the time frame specified in the indictment”).
{¶25} Count V of the indictment charged Neal with unlawful sexual conduct with
a minor “on or about the 10th day of June, 2013.” But the state failed to prove beyond a Hocking App. No. 15CA1 11
reasonable doubt that the offense occurred within a reasonable proximity to that time
period. Instead, H.G. testified that she thought that this incident occurred sometime in
2013 before the final two incidents, which occurred on June 13, 2013, and that she
thought it was snowing in the beginning of the day. At best, the evidence indicated that
the incident might have occurred during early 2013, when snow was likely, and not
around June, when it was unlikely. The state did not seek to amend this charge to
conform to the evidence introduced at trial. Therefore, the state failed to establish by
sufficient evidence that the charged offense occurred within the alleged period. In light
of this holding, we need not address Neal’s alternative argument that his trial counsel
was ineffective for failing to timely move for judgment of acquittal on this charge
because it is rendered moot by our disposition of his initial contention. We sustain
Neal’s first assignment of error.
B. Due Process: Count XIV
{¶26} In his second assignment of error Neal contends that the failure of the
state to provide a more specific date for Count XIV of the indictment violated his right to
due process. This count alleged that Neal committed the offense of unlawful sexual
conduct with a minor “sometime between the 22nd day of November, 2012 and the 25th
day of December, 2012.” However, H.G. and her friend Chelsie unequivocally testified
that this incident occurred on the evening of November 22, 2012. Neal claims that had
the state timely responded to his request for a bill of particulars or supplemented its
discovery limiting the alleged date and time to November 22, 2012, “he may have been
able to supply an alibi.” Hocking App. No. 15CA1 12
{¶27} As noted previously an indictment charging a sexual offense against
children need not specify the date of the alleged abuse as long as the state establishes
that the offense was committed within the time frame alleged. Czech, 2015-Ohio-1536,
at ¶ 14; McIntire, 2015-Ohio-1057, at ¶ 42. An allowance for reasonableness and
inexactitude must be made for such cases because many child victims are unable to
remember exact dates and times, particularly where the crimes involve a repeated
course of conduct over an extended period of time and the accused and the victim are
related or reside in the same household, which facilitates the extended period of abuse.
See State v. Adams, 2014-Ohio-5854, 26 N.E.3d 1283, ¶ 51 (7th Dist.), citing Yaacov,
2006-Ohio-5321, at ¶ 17.
{¶28} However, the state initially charged that the incident in Count XIV occurred
over a period between November 22 and December 25, 2012 because as H.G.
conceded, she had initially told the police that this was the applicable period. At trial the
state established that the crime occurred during the alleged period—on November 22,
2012. Furthermore, nothing in the record indicates that the failure to provide Neal with a
more specific date before trial prejudiced his defense. He never filed a notice of his
intention to rely on an alibi and he did not claim that he was somewhere else when this
crime occurred. Instead, he claimed that he never engaged in any sexual conduct at
any time with H.G. and that she and the other witnesses were lying. Courts have
repeatedly affirmed convictions under similar circumstances, finding that there is no due
process violation because the defendant denied any sexual contact whatsoever with the
victim and thus the lack of specificity in the indictment as to dates or places of alleged Hocking App. No. 15CA1 13
abuse did not result in prejudice to the accused’s defense. Czech at ¶ 21, citing
Yaacov.
{¶29} That being said, we acknowledge that providing an alibi for a specific date
is much easier than providing one for a range of dates and warn the state that it has a
duty to update and provide as specific a date and time of the offense as its investigation
permits. Moreover, nothing in our decision should be taken as approving “trial by
ambush.” Nonetheless, we cannot find error in a direct appeal based upon mere
speculation that Neal might have been able to provide an alibi. That is not to say that a
postconviction relief effort would be futile on these grounds.
{¶30} The date of the offense is not an essential element of Count XIV; the state
established that the offense occurred within the time period alleged; and based on his
defense strategy nothing in this record indicates the failure to allege a more specific
date prejudiced Neal’s ability to defend himself. Therefore, he suffered no violation of
his right to due process. We overrule Neal’s second assignment of error.
C. Evidence of Defendant’s Invocation of Right to Counsel
{¶31} In his third assignment of error Neal claims that the admission of evidence
relating to the invocation of his right to counsel prejudiced the jury and that his trial
counsel’s failure to object to this evidence constituted ineffective assistance of counsel.
{¶32} The Fifth Amendment to the United States Constitution, which is
applicable to the states through the Fourteenth Amendment, provides that no person
“shall be compelled in any criminal case to be a witness against himself.” State v.
Leach, 102 Ohio St.3d 135, 2004–Ohio–2147, 807 N.E.2d 335, ¶ 11. “The Fifth
Amendment guarantees a criminal defendant's right against self-incrimination, which Hocking App. No. 15CA1 14
includes the right to silence during police interrogation. * * * Additionally, a defendant
can invoke his rights ‘at any time prior to or during questioning[.]’ ” State v. Harper, 4th
Dist. Vinton No. 11CA684, 2012–Ohio–4527, ¶ 14, quoting Miranda v. Arizona, 384
U.S. 436, 474, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). “[W]hen a person is subject to
custodial interrogation, he or she must be informed of certain rights, including his or her
rights to remain silent and to an attorney.” State v. Bennett, 9th Dist. Lorain No.
12CA010286, 2014–Ohio–160, ¶ 62, citing Miranda. “ ‘A suspect's right to an attorney
during questioning * * * is derivative of his [or her] right to remain silent.’ ” Leach at ¶
13, quoting Wainwright v. Greenfield, 474 U.S. 284, 298–299, 106 S.Ct. 634, 88
L.Ed.2d 623 (Rehnquist, J., concurring).
{¶33} “Once a person invokes his or her Fifth Amendment right to remain silent,
the State cannot use the person's silence [either in pre-arrest or post-arrest
circumstances] as substantive evidence of guilt in its case-in-chief.” Bennett at ¶ 63,
citing Wainwright, 474 U.S. at 295 (post-arrest, post-Miranda silence is inadmissible as
substantive evidence of guilt in the state's case-in-chief), and Leach at syllabus (“Use of
a defendant's pre-arrest silence as substantive evidence of guilt violates the Fifth
Amendment privilege against self-incrimination”); see also State v. Perkins, 3d Dist.
Hancock No. 5–13–01, 2014–Ohio–752, ¶ 49, citing Doyle v. Ohio, 426 U.S. 610, 618,
96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), and Leach at ¶ 18 (“Evidence submitted by the
State regarding a defendant's exercise of his right to remain silent during an
interrogation violates the Due Process Clause of both the state and federal
constitutions”). To allow the “[u]se of * * * silence in the state's case-in-chief would force Hocking App. No. 15CA1 15
defendants either to permit the jury to infer guilt from their silence or surrender their right
not to testify and take the stand to explain their prior silence.” Leach at ¶ 31.
{¶34} Neal challenges two instances of alleged improprieties during his jury
trial. In the first instance he contests the following exchange during the direct
examination of Lieutenant Gregg Cluley of the Logan Police Department in the state’s
case-in-chief :
Q. You had a chance to talk to Mr. Neal. What did he say to you when you interviewed him -- Terry Neal?
A. After reading Terry Neal his Miranda warnings, he disclosed that he did not want to say anything at that time and that was the end of the interview.
{¶35} The second instance he contests is the following prosecutor’s statement in
closing argument:
Last point folks I’d like you to think about. Lieutenant Cluley went to him and asked to talk to him, for him to give his version of what happened. What his response? I don’t want to talk to you, I want a lawyer. Never denied it. That was his opportunity. He never denied it. He had a chance to be able to tell Lieutenant Cluley his version and he chose not to do so.
{¶36} We generally use a de novo standard of review to assess errors based
upon violations of constitutional law. See State v. Bryant, 4th Dist. No. 14CA3434,
2014-Ohio-5535, ¶ 12. However, Neal’s trial counsel did not object at trial to the
foregoing testimony of Lt. Cluley or the closing argument of the prosecutor so our
review is limited to whether this testimony and argument constituted plain error under
the Fifth Amendment. See, e.g., State v. Lang, 129 Ohio St.3d 512, 2011–Ohio–4215,
954 N.E.2d 596, ¶ 123 (failure to object to testimony at trial forfeits all but plain error on
appeal). Appellate courts take notice of plain error “with the utmost caution, under Hocking App. No. 15CA1 16
exceptional circumstances and only to prevent a manifest miscarriage of justice.” State
v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus;
State v. Bethel, 4th Dist. Jackson No. 13CA11, 2014–Ohio–3861, ¶ 7. To prevail, Neal
“must show that an error occurred, that the error was plain, and that but for the error,
the outcome of the trial clearly would have been otherwise.” State v. Mammone, 139
Ohio St.3d 467, 2014–Ohio–1942, 13 N.E.3d 1051, ¶ 69. The defendant bears the
burden of proof on the issue. See State v. Cooper, 170 Ohio App.3d. 418, 2007–Ohio–
1156, 867 N.E.2d 493, 9131 (4th Dist.) (“The defendant carries the burden to establish
the existence of plain error, unlike the situation in a claim of harmless error, where the
burden lies with the state”).
{¶37} In attempting to discern exactly what is being argued in this assignment of
error we ordered the parties to submit supplemental briefs on the state’s ability to
present evidence and comment on a criminal defendant’s right to remain silent. Upon
review of these supplemental briefs and the initial briefs, we conclude that Neal did not
establish plain error regarding Lt. Cluley’s testimony and the state’s closing argument.
{¶38} Neal’s third assignment of error is specifically limited to contesting the
“admission of evidence relating to defendant’s invocation of his right to counsel.” Lt.
Cluley’s testimony did not mention Neal’s invocation of his right to counsel. Although
this testimony did note Neal’s invocation of his right to remain silent and the right to
counsel is derivative of that right, one can invoke the right to remain silent without
invoking the right to counsel. Neal’s assigned error does not challenge evidence
relating to his broader right to remain silent. Nor does his assigned error contest the
state’s closing argument—it contests only the admission of evidence relating to his Hocking App. No. 15CA1 17
invocation of his right to counsel, not the prosecutor’s closing argument. Although the
state’s closing argument did reference the invocation of his right to counsel, it did not
constitute evidence. See State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971
N.E.2d 865, ¶ 164 (arguments of counsel are not evidence). Because Neal’s
arguments do not address in his assignment of error, we need not address them in the
context of plain error. “ Appellate courts review assignments of error—we sustain or
overrule assignments of error and not mere arguments. ” State v. Lamb, 4th Dist.
Highland No. 14CA3, 2014-Ohio-2960, ¶ 13, quoting State v. Harlow, 4th Dist.
Washington No. 13CA29, 2014-Ohio-864, ¶ 10; see also State v. Delawder, 4th Dist.
Lawrence No. 14CA12, 2015-Ohio-1857, ¶ 29.
{¶39} Even though it appears that the evidence concerning the invocation of the
right silence and the prosecutor’s argument amounted to error, it does not rise to the
plain-error level. Our reluctance to find plain error is based upon the fact there was
overwhelming evidence to establish Neal’s guilt of the crimes. Bryant, 2014-Ohio-5535,
at ¶ 24. In other words, Neal cannot show that but for the contested testimony and
prosecutor’s argument about his silence, the outcome of the trial would have been
different. H.G. provided credible, detailed evidence concerning the offenses committed
by Neal in Counts IX, X, and XIV; her friend Chelsie, her brother G.G., and the pizza
manager corroborated pertinent aspects of her testimony; and DNA evidence
established that her DNA was identified as being on Neal’s boxer shorts. Thus, we
cannot say there is a reasonable probability that the outcome of the trial would have
been different absent the contested evidence and argument. Therefore, Neal does not
meet his burden of proving plain error under the Fifth Amendment. Hocking App. No. 15CA1 18
{¶40} Neal’s alternative claim that his trial counsel’s failure to object to the
contested evidence and argument constituted ineffective assistance of counsel likewise
fails because he has not established prejudice, i.e., a reasonable probability that, but for
his trial counsel’s errors, the result of the proceeding would have been different. See
State v. Short, 129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 113;
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
This is because of the overwhelming evidence establishing Neal’s guilt of the crimes.
{¶41} Nonetheless, we do not endorse the state’s reference in its case-in-chief
to Neal’s invocation of his right to remain silent. The state contends that counsel’s
opening statement that he anticipated Neal would testify and deny that he committed
the charged offenses opened the door to this evidence. Not so. That is, “[a] prosecutor
may * * * reference a defendant's choice to remain silent if it is a fair reply to the
defense's theory of the case or legal argument—such as the defense's assertion that
the defendant was not given the opportunity to speak on his or her own behalf.”
(Emphasis sic.) United States v. Six, 600 F.Appx. 346, 353 (6th Cir.2015), citing Hall v.
Vasbinder, 563 F.3d 222, 233 (6th Cir.2009). Using a criminal defendant’s silence as
substantive evidence of guilt in its case-in-chief is not a fair reply to a general denial in
which there is no contention that the defendant was not given the opportunity to speak.
{¶42} Nevertheless, based on the specific facts before us, including the specific
argument made by Neal on appeal and the overwhelming evidence of Neal’s guilt of the
crimes, we overrule Neal’s third assignment of error.
D. Manifest Weight of the Evidence Hocking App. No. 15CA1 19
{¶43} In his fourth assignment of error Neal argues that his four convictions for
unlawful sexual conduct with a minor were against the manifest weight of the evidence.
In determining whether a criminal conviction is against the manifest weight of the
evidence, an appellate court must review 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 trier of fact clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be reversed. State v.
Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997); State v. Hunter, 131 Ohio
St.3d 67, 2011–Ohio–6254, 960 N.E.2d 955, ¶ 119; State v. Wade, 4th Dist. Ross No.
14CA3435, 2015-Ohio-997, ¶ 29.
{¶44} For his conviction on Count V, which we reversed for insufficient evidence
in our disposition of his first assignment of error, Neal’s manifest-weight argument is
moot and we need not address it. See State v. Scott, 4th Dist. Scioto No. 02CA2841,
2002-Ohio-7083, ¶ 14(“We do not address Scott's argument that his conviction is
against the manifest weight of the evidence as it is moot due to our finding that his
conviction is supported by insufficient evidence”); App.R. 12(A)(1)(c).
{¶45} For his remaining three convictions the state introduced evidence that
Neal engaged in oral, anal, and vaginal sex with H.G. in separate incidents within the
times alleged in the indictment. R.C. 2907.04(A) provides that “[n]o person who is
eighteen years of age or older shall engage in sexual conduct with another, who is not
the spouse of the offender, when the offender knows the other person is thirteen years
of age or older but less than sixteen years of age, or the offender is reckless in that Hocking App. No. 15CA1 20
regard.” “Whoever violates R.C. 2907.04(A) is guilty of unlawful sexual conduct with a
minor.” R.C. 2907.04(B).
{¶46} Neal does not dispute that he is over 18 years old, that he knew that H.G.
was 13 years old at the time of the offenses, and that H.G. was not his spouse. Instead,
he claims he did not have sexual conduct with H.G. “Sexual conduct” is defined to
include “vaginal intercourse between a male and female; anal intercourse, fellatio, and
cunnilingus between persons regardless of sex.” R.C. 2907.01(A). For the Count XIV
incident, H.G. testified that on Thanksgiving evening 2012 Neal asked her to perform
oral sex on him and her friend Chelsie testified that she witnessed it. For the Count IX
incident, H.G. testified that on June 13, 2013, Neal engaged in anal intercourse with
her, her brother G.G. corroborated that he came into the room and witnessed Neal and
H.G. jump up from the love seat when he told them he was going to order pizza. For
the Count X incident, H.G. testified that later that evening after they consumed pizza,
Neal had vaginal intercourse with her. H.G. identified the blue boxer shorts that Neal
wore during the Count IX and X incidents and DNA testing of them confirmed H.G.’s
DNA on them.
{¶47} Neal challenges the credibility of this evidence. Nevertheless, “[a] jury,
sitting as the trier of fact, is free to believe all, part or none of the testimony of any
witness who appears before it.” State v. West, 4th Dist. Scioto No. 12CA3507, 2014–
Ohio–1941, ¶ 23. “We defer to the trier of fact on these evidentiary weight and
credibility issues because it is in the best position to gauge the witnesses' demeanor,
gestures, and voice inflections, and to use these observations to weigh their credibility.”
State v. Dillard, 4th Dist. Meigs No. 13CA9, 2014-Ohio-4974, ¶ 28. Hocking App. No. 15CA1 21
{¶48} Based on the evidence establishing that Neal had unlawful sexual conduct
with H.G. during the charged periods for Counts IX, X, and XIV, the jury properly found
the essential elements of the crimes proved beyond a reasonable doubt; it did not
clearly lose its way or create a manifest miscarriage of justice. We overrule Neal’s
fourth assignment of error.
E. Allied Offenses of Similar Import
{¶49} In his fifth assignment of error Neal argues that the trial court erred in
failing to merge Counts IX and X—the two offenses of unlawful sexual conduct with a
minor that occurred on June 13, 2013—because they were allied offenses of similar
import. Neal did not raise this issue during the proceedings below so he forfeited all but
plain error.
{¶50} The Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution provides that no person shall “be subject for the same offence to be twice
put in jeopardy of life or limb,” and this protection applies to Ohio citizens through the
Fourteenth Amendment and is additionally guaranteed by Article I, Section 10 of the
Ohio Constitution. This constitutional protection prohibits multiple punishments for the
same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d
656 (1969), overruled on other grounds, Alabama v. Smith, 490 U.S. 794, 109 S.Ct.
2201, 104 L.Ed.2d 865 (1989).
{¶51} The General Assembly enacted R.C. 2941.25 to specify when multiple
punishments can be imposed:
(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one. Hocking App. No. 15CA1 22
(B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.
{¶52} Appellate courts apply a de novo standard of review in an appeal
challenging a trial court’s determination of whether offenses constitute allied offenses of
similar import that must be merged under R.C. 2941.25. State v. Williams, 134 Ohio
St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28; State v. Cole, 4th Dist. Athens No.
12CA49, 2014-Ohio-2967, ¶ 7. Merger is a sentencing question, and the defendant
bears the burden of establishing his entitlement to the protection of R.C. 2941.25.
State v. Washington, 137 Ohio St.3d 427, 2013-Ohio-4982, 999 N.E.2d 661, ¶ 18.
{¶53} The Supreme Court of Ohio recently clarified the applicable analysis in
determining when two offenses merge under R.C. 2941.25 in State v. Ruff, 143 Ohio
St.3d 114, 2015-Ohio-995, 34 N.E.3d 892. “In determining whether offenses are allied
offenses of similar import within the meaning of R.C. 2941.25, courts must evaluate
three separate factors—the conduct, the animus, and the import.” Id. at paragraph one
of the syllabus. “Under R.C. 2941.25(B), a defendant whose conduct supports multiple
offenses may be convicted of all the offenses if any one of the following is true: (1) the
conduct constitutes offenses of dissimilar import, (2) the conduct shows that the
offenses were committed separately, or (3) the conduct shows that the offenses were
committed with separate animus.” Id. at paragraph three of the syllabus.
{¶54} The offenses of unlawful sexual conduct with a minor that Neal committed
on June 13, 2013 were committed separately and with separate animus. The crimes
concerned different sexual conduct—the first incident involved anal intercourse and the Hocking App. No. 15CA1 23
second incident involved vaginal intercourse—separated by a substantial period of time.
In fact the act of anal intercourse was interrupted when G.G. walked into the room and
asked if Neal and H.G. wanted pizza. Subsequently, someone ordered the pizza,
Christy’s Pizza delivered the order, and they ate it. Only after G.G. and his girlfriend
returned to their room and A.G. went to his room, did the act of vaginal intercourse
occur. Clearly these two acts cannot be described as one continuous course of conduct
given their discrete ending and beginning, which occurred over a considerable passage
of time and unrelated conduct. See, e.g., State v. Carpenter, 6th Dist. Erie No. E-00-
033, 2002-Ohio-2266, ¶ 78 (crimes were not allied offenses of similar import when they
involved different sexual activities). Neal’s animus for the first offense was to have anal
intercourse with H.G. and his animus for the second offense was to have vaginal
intercourse with her. Moreover, the two incidents were so separated in time and
intervening acts that they amount to separate conduct. The trial court did not err in
failing to merge these offenses because they were not allied offenses of similar import.
We overrule Neal’s fifth assignment of error.
F. Consecutive Sentences
{¶55} In his sixth assignment of error Neal asserts that the trial court erred in
imposing consecutive sentences for his crimes. When reviewing felony sentences we
apply the standard of review set forth in R.C. 2953.08(G)(2). See State v. Brewer,
2014–Ohio–1903, 11 N.E.3d 317, ¶ 33 (4th Dist.) (“we join the growing number of
appellate districts that have abandoned the Kalish plurality's second-step abuse-of-
discretion standard of review; when the General Assembly reenacted R.C.
2953.08(G)(2), it expressly stated that ‘[t]he appellate court's standard of review is not Hocking App. No. 15CA1 24
whether the sentencing court abused its discretion’ ”). R.C. 2953.08(G)(2) specifies that
an appellate court may increase, reduce, modify, or vacate and remand a challenged
felony sentence if the court clearly and convincingly finds that “the record does not
support the sentencing court's findings” under the specified statutory provisions or “the
sentence is otherwise contrary to law.”
{¶56} Under the tripartite procedure set forth in R.C. 2929.14(C)(4), prior to
imposing consecutive sentences the trial court had to find that: (1) consecutive
sentences are necessary to protect the public from future crime or to punish the
offender, (2) consecutive sentences are not disproportionate to the seriousness of the
offender's conduct and to the danger the offender poses to the public, and (3) as
applicable here, at least two of the multiple offenses were committed as part of one or
more courses of conduct, and the harm caused by two or more multiple offenses was so
great or unusual that no single prison term for any of the offenses committed adequately
reflects the seriousness of the offender's conduct. See State v. Baker, 4th Dist. Athens
No. 13CA18, 2014–Ohio–1967, ¶ 36. The trial court “is required to make the findings
mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate its findings
into the sentencing entry, but it has no obligation to state reasons to support its
findings.” State v. Bonnell, 140 Ohio St.3d 209, 2014–Ohio–3177, 16 N.E.2d 659,
syllabus. The trial court here complied with R.C. 2929.14(C)(4) by making the requisite
findings at the sentencing hearing, and incorporating them in its original and amended
sentencing entries.
{¶57} Furthermore, notwithstanding Neal’s claims to the contrary, the record
supports the trial court’s findings. Neal plied the impressionable 13-year-old daughter of Hocking App. No. 15CA1 25
his girlfriend with cigarettes, alcohol, and marijuana so he could engage in unlawful
sexual conduct with her and threatened her with violence to her and to her family if she
did not comply. The evidence further established that Neal had six prior felony
convictions and additional misdemeanor convictions, including offenses of violence like
domestic violence and assault. Because the record supports the trial court’s imposition
of consecutive sentences, we overrule Neal’s sixth assignment of error.
G. Use of Restraints
{¶58} In his seventh assignment of error Neal contends that the trial court erred
in permitting the sheriff to use all necessary restraints. Prior to trial, Neal filed a motion
to permit him to appear in civilian clothing and without restraints at all proceedings. In
the motion, Neal requested an evidentiary hearing if the court was not inclined to grant it
on the record as it existed at that time. The focus of his motion was his concern that
any restraints would be visible to the jurors. He also suggested that restraints would
inhibit his ability to communicate with his lawyer and cause him fear and anxiety that
would affect his demeanor. The trial court granted the motion in part by allowing Neal to
appear in civilian clothing. The trial court nevertheless permitted the sheriff to use “all
necessary restraints,” with the caveat that the sheriff “ensure, as much as possible, that
the jury does not see the defendant in restraints.”
{¶59} Absent unusual circumstances, no one should be tried while restrained
because the use of visible restraints tends to erode the presumption of innocence that
the justice system attaches to every defendant. State v. Neyland, 139 Ohio St.3d 353,
2014-Ohio-1914, 12 N.E.3d 1112, ¶ 82, citing Illinois v. Allen, 397 U.S. 337, 344, 90
S.Ct. 1057, 25 L.Ed.2d 353 (1970), and State v. Franklin, 97 Ohio St.3d 1, 2002-Ohio- Hocking App. No. 15CA1 26
5304, 776 N.E.2d 26, ¶ 79. However, the use of restraints, including electronic stun
belts, is left to the trial court’s sound discretion because the court is in the best position
to consider the accused’s actions inside and outside the courtroom. Neyland at ¶ 82;
State v. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29, ¶ 104. Although
the trial court should normally conduct a hearing prior to ordering a defendant to wear
restraints, this is not an absolute rule where the facts and circumstances disclose a
compelling need for these security measures. Franklin at ¶ 82.
{¶60} Neal does not disclose what type of restraints were used on him at trial,
and whether they were visible to the jury. He also does not claim on appeal that
restraints impeded him from communicating with his attorney, affected his testimony, or
impaired his demeanor during trial. The record does not show any negative impact on
Neal from the trial court’s order. The state claims that he wore a non-visible stun belt
underneath his clothing. Assuming that the state is correct, Neal’s history of violence—
including domestic violence—and numerous criminal convictions supported the trial
court’s order.
{¶61} The trial court did not abuse its broad discretion in ordering that the sheriff
be permitted to use all necessary restraints, with a caveat that the restraints should not
be visible to the jury. See State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d
31, ¶ 343 (rejecting claim that trial counsel was ineffective for failing to request a
hearing on the necessity of the defendant wearing shackles during trial where the
record did not indicate that he was wearing visible restraints at trial); State v. Were, 118
Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, ¶ 104 (defendant was not prejudiced
by trial court order that he wear a stun belt during jury trial where he did not claim that Hocking App. No. 15CA1 27
the device caused him physical discomfort or interfered with his ability to communicate
with counsel); State v. Chester, 10th Dist. Franklin No. 08AP-1, 2008-Ohio-6679, ¶ 14
(any error in ordering defendant to be shackled during trial was harmless because,
among other reasons, defendant did not claim that he was unable to effectively
communicate with his attorney with regard to his legal representation). We overrule
Neal’s seventh assignment of error.
IV. CONCLUSION
{¶62} Having sustained Neal’s first assignment of error, we reverse his
conviction for unlawful sexual conduct with a minor as charged in Count V of the
indictment because it was not supported by sufficient evidence and remand the cause
to the trial court to discharge him on that count. Having overruled Neal’s remaining
assignments of error, we affirm his remaining convictions and sentence.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND CAUSE REMANDED. Hocking App. No. 15CA1 28
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED IN PART AND REVERSED IN PART and that the CAUSE IS REMANDED. Appellant and Appellee shall split the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Hocking County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Hoover, P.J. & Abele, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________ William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.