State v. Ross

2020 Ohio 6958

Opinion

[Cite as State v. Ross, 2020-Ohio-6958.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 28603 : v. : Trial Court Case No. 2018-CR-3024 : MARTIN H. ROSS : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 30th day of December, 2020.

MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Reg. No. 0095900, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, P.O. Box 340214, Beavercreek, Ohio 45434 Attorney for Defendant-Appellant

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TUCKER, P.J. -2-

{¶ 1} Defendant-appellant, Martin Ross, appeals from his convictions for one count

of aggravated burglary in violation of R.C. 2911.11(A)(1), one count of kidnapping in

violation of R.C. 2905.01(A)(4), and one count of rape in violation of R.C.

2907.02(A)(1)(b). Raising two assignments of error, Ross argues that the evidence

against him was quantitatively insufficient to support his conviction for rape and

qualitatively inadequate to support any of his convictions. We find that Ross’s arguments

lack merit, and his convictions are therefore affirmed.

I. Facts and Procedural History

{¶ 2} L.W., who was 11 years old at the time, awoke early in the morning of August

2, 2018, to find a man lying on the floor in her bedroom. The man, afterward identified

as Ross, pushed L.W. facedown onto her bed and threatened to “do something” to her if

she did not keep quiet. See Transcript Vol. I, 107:4-107:6.1 Ross then raped L.W. by

penetrating her anus. See id. at 108:4-110:17; see also R.C. 2907.01(A) and

2907.02(A)(1).

{¶ 3} On August 13, 2018, a Montgomery County grand jury indicted Ross as

follows: Count 1, aggravated burglary, a first degree felony pursuant to R.C.

2911.11(A)(1) and (B); Count 2, kidnapping, a first degree felony pursuant to R.C.

2905.01(A)(4) and (C)(1); and Count 3, rape of a person less than 13 years old, a first

1 Ross’s case was tried to the bench on September 30, October 1 and October 2, 2019. The record of the first day and part of the second day is presented in Volume I of the transcript of proceedings before the trial court, which was filed on January 3, 2020, and the record of the balance of the second day is presented in Volume II of the transcript, which was filed with Volume I. The record of the third day of the trial is presented in a separate transcript, without a volume number, which was filed on April 7, 2020; we cite the separate transcript as Volume III, even though it is not paginated as a continuation of Volume I and Volume II. -3-

degree felony pursuant to R.C. 2907.02(A)(1)(b) and (B). The case was tried to the

bench, and on October 8, 2019, the trial court found Ross guilty on all counts.

{¶ 4} Ross appeared for sentencing on November 5, 2019. The trial court merged

Counts 1 and 2 with Count 3, and sentenced Ross to a term of 10 years to life in prison.

On November 7, 2019, the court filed its judgment entry of conviction, and later that day,

Ross timely filed a notice of appeal.

II. Analysis

{¶ 5} Because Ross’s assignments of error are closely related, we address them

together. For his first assignment of error, Ross contends that:

THE CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF

THE EVIDENCE.

And for his second assignment of error, Ross contends that:

THE CONVICTION FOR RAPE IS BASED ON INSUFFICIENT

EVIDENCE.

{¶ 6} Ross argues, first, that the trial court found him guilty contrary to the manifest

weight of the evidence because “[t]here were several inconsistencies in the testimony

that raise reasonable doubt about [his] guilt,” and because the court “lost [its] way [in

interpreting the] DNA evidence.” See Appellant’s Brief 7. Second, Ross argues that the

evidence was insufficient to prove that “anal intercourse took place or that anything was

inserted into [L.W.’s] anal opening.” Appellant’s Brief 10.

{¶ 7} Sufficiency of the evidence “is the legal standard applied to determine

whether * * * the evidence [in a given case] is [adequate] as a matter of law to support

the * * * verdict.” State v. Smith, 80 Ohio St.3d 89, 113, 684 N.E.2d 668 (1997), citing -4-

State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). On review of a

challenge to a conviction based on the sufficiency of the evidence, 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.’ ” Id., quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492

(1991), paragraph two of the syllabus.

{¶ 8} By contrast, in a challenge based on the weight of the evidence, an appellate

court considers not only the quantity of the evidence, but the quality of the evidence, as

well. See State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 12; State

v. Thigpen, 2016-Ohio-1374, 62 N.E.3d 1019, ¶ 6 (8th Dist.). Accordingly, the appellate

court must review the record; weigh the evidence and all reasonable inferences; consider

the credibility of witnesses; and determine whether in resolving conflicts in the evidence,

the factfinder clearly lost its way and created a manifest miscarriage of justice warranting

a new trial. Thompkins at 387, citing State v. Martin, 20 Ohio App.3d 172, 175, 485

N.E.2d 717 (1st Dist.1983); see also State v. Hill, 2d Dist. Montgomery No. 25172, 2013-

Ohio-717, ¶ 8. A trial court’s “judgment should be reversed as being against the manifest

weight of the evidence ‘only in the exceptional case in which the evidence weighs heavily

against the conviction.’ ” Hill at ¶ 8, quoting Martin at 175.

{¶ 9} Although the appellate court “must defer to the factfinder’s decisions whether,

and to what extent, to credit the testimony of particular witnesses,” the court nevertheless

“may determine which of several competing inferences suggested by the evidence should

be preferred.” (Citation omitted.) State v. Cochran, 2d Dist. Montgomery No. 27023,

2017-Ohio-216, ¶ 6. A determination that a conviction is supported by the manifest -5-

weight of the evidence is also dispositive of the issue of the sufficiency of the evidence,

because “a finding that a conviction is supported by the manifest weight of the evidence

necessarily includes a finding of sufficiency.” (Citation omitted.) State v. McCrary, 10th

Dist. Franklin No. 10AP-881, 2011-Ohio-3161, ¶ 11; State v. Miller, 2d Dist. Montgomery

No. 25504, 2013-Ohio-5621, ¶ 48, citing McCrary at ¶ 11.

{¶ 10} In this case, the trial court convicted Ross for aggravated burglary,

kidnapping and rape of a person under 13 years of age. To prove Ross guilty of

aggravated burglary, the State had to present evidence showing that: (1) Ross trespassed

by force, stealth or deception into L.W.’s residence; (2) at least one person, other than an

accomplice of Ross, was in the residence at the time; and (3) Ross inflicted physical harm

on L.W. See R.C. 2911.11(A)(1). To prove Ross guilty of kidnapping, the State had to

present evidence showing that: (1) Ross restrained L.W.’s liberty; (2) Ross’s purpose was

to engage in sexual activity with L.W. against her will; and (3) L.W. was less than 13 years

old at the time. See R.C. 2905.01(A)(4). To prove Ross guilty of rape of a person under

13 years of age, the State had to present evidence showing that: (1) L.W. either was not

Ross’s spouse, or was his spouse but did not reside with him; (2) Ross engaged in sexual

conduct with L.W.; and (3) at the time the sexual conduct occurred, L.W. was less than

13 years old, whether or not Ross knew as much. See R.C. 2907.02(A)(1)(b).

{¶ 11} At trial, L.W.’s mother testified that Ross never had permission to enter her

residence. Transcript Vol. I, 166:5-166:19. Her testimony, along with that of L.W. and

L.W.’s cousin, A.B., established that persons other than Ross or an accomplice of his,

were present in the residence when Ross gained entry without permission. Id. at 106:5-

107:12, 111:15-111:21, 160:15-165:5, 187:8-188:5 and 191:13-193:25. L.W.’s -6-

testimony established that Ross inflicted physical harm on her while he was there. Id. at

107:3-110:25 and 153:11-153:20; see also R.C. 2901.01(A)(3) (defining the term

“physical harm”). This evidence sufficed to show Ross’s guilt with respect to each of the

elements of aggravated burglary.

{¶ 12} L.W. testified that Ross held her down and threatened her to compel her to

stay silent. Transcript Vol. I, 108:19-111:3. Furthermore, L.W.’s testimony established

that Ross engaged in sexual conduct with her against her will, and that at the time, she

was less than 13 years old.2 Id. at 94:7-94:17 and 109:18-110:20. In addition, an expert

witness testified that a DNA sample recovered from L.W.’s underwear “matche[d] back to

Martin Ross.” Transcript Vol. III, 14:5-15:25. This evidence sufficed to show Ross’s

guilt with respect to each of the elements of kidnapping.

{¶ 13} Given that L.W. was less than 13 years old, she could not legally have been

married, meaning that she could not have been Ross’s spouse as a matter of law. R.C.

3101.01-3101.02. The evidence, then, sufficed to show Ross’s guilt with respect to each

of the elements of rape of a person under 13 years of age.

{¶ 14} Ross argues that his convictions should be reversed as being against the

manifest weight of the evidence, basing his argument on several purported internal

inconsistencies in L.W.’s testimony and several purported inconsistencies among the

testimony of L.W., the testimony of A.B., and the testimony of L.W.’s mother. Appellant’s

Brief 7-8. As well, Ross faults the trial court for mischaracterizing or misunderstanding

the testimony offered by an expert witness about the analysis of a DNA sample obtained

2 The term “[s]exual activity” in R.C. 2905.01(A)(4) includes “[s]exual conduct” for purposes of R.C. 2907.02(A)(1)(b). See R.C. 2901.01(A) and (C). -7-

from L.W.’s underwear. Id. at 8.

{¶ 15} According to Ross, L.W. “identified [him] as the man [on the floor] in her

room, but [she] testified that,” after the rape, “the man was already gone by the time she

got up” from her bed. Appellant’s Brief 7. Ross observes further that L.W., whose

bedroom was on the second floor of her residence, “testified that she could not see down

the stairs from her bed,” but “[o]n the other hand,” she testified “that she saw the man go

down the stairs.” Id.; see also Transcript Vol. I, 103:19-104:2. Ross notes, too, that

L.W. “testified that the man stopped and looked at her before he went down the stairs.”

Appellant’s Brief 7.

{¶ 16} Although Ross claims that L.W.’s testimony was internally inconsistent in

these respects, his characterization of the testimony is not entirely accurate. For

instance, the State had the following exchange with L.W. on redirect examination:

THE STATE: Okay. When [the perpetrator] left, were you still in [your]

bed?

L.W.: Yes. Then I got up and went to my mom[’s] room.

***

THE STATE: By the time you got up, had he already left?

L.W.: Yes.

THE STATE: Okay. * * * Did you---from where you [were] sitting on [your]

bed, you [could not] actually see the stairs, right?

THE STATE: That’s---you---

L.W.: No. -8-

THE STATE: ---you can’t see the stairs? Okay. Did you actually see him

go down the stairs?

THE STATE: You did?

THE STATE: How’d you see him[,] since you were on the bed?

L.W.: He ran down---he stopped---well, I was looking the way that the stairs

is---

THE STATE: Okay.

L.W.: ---and he stopped[;] he looked at me[;] and then he ran down the

stairs.

Transcript Vol. I, 152:8-153:6. Thus, L.W.’s identification of Ross was consistent with

her testimony. After Ross left her bedroom, L.W. saw his face when he turned to look

back at her, while she was still lying on her bed.

{¶ 17} L.W.’s description, moreover, included details that were later independently

verified. Specifically, L.W. testified that Ross “had on a cast,” which she described as

“[a] boot for his leg,” and that he was wearing “some gloves,” which she described as

“[p]lastic” and “[g]reen or blue” in color. Transcript Vol. I, 111:22-112:11. Several hours

afterward, when an officer with the Dayton Police Department first made contact with

Ross, the officer observed that Ross was wearing “a medical boot on one of his legs” and

had “green rubber gloves hanging out of one of his pockets.” Id. at 249:11-249:21,

251:7-251:21, 253:23-254:10 and 255:9-256:10. L.W. subsequently identified Ross in a

photospread. Transcript Vol. II, 315:16-319:19 and 332:14-333:22. -9-

{¶ 18} Ross suggests further that L.W. contradicted herself by testifying “that she

could not see down the stairs from her bed” and also “that she saw [him] go down the

stairs.” Appellant’s Brief 7. L.W. explained, however, that as somebody “walk[ed] up

the stairs, you [could] like see, like—like on the eighth stair, you [could] see them.”

Transcript Vol. I, 155:3-155:9. In other words, L.W. could not see the bottom of the

stairwell from her bedroom, but she could see a person near the top of the stairwell.

Conversely, she could have seen Ross walking down the stairs, even though she could

not have seen him once he reached the bottom step.

{¶ 19} Additionally, Ross notes that L.W. “testified that her sister was asleep on

the [same] bed while [he assaulted L.W.], but [her sister] never woke up.” Appellant’s

Brief 7. L.W. did testify as Ross indicates, yet Ross fails to explain what, if any,

significance he attaches to this testimony. Id. Presumably, Ross intends to imply that

L.W.’s sister could not have slept through the assault, but he makes no attempt to

demonstrate that that would have been impossible or even unlikely. Id. at 7-8.

Similarly, Ross notes that L.W. “testified that she did not call for help,” although in making

this observation, Ross fails to acknowledge L.W.’s testimony that she was intimidated into

staying silent. Id.

{¶ 20} Ross also compares one aspect of L.W.’s testimony to that offered by her

mother and A.B. Id. at 8. L.W. testified that after Ross left, she “got up and went to [her]

mom[’s] room.” Transcript Vol. I, 152:4-152:9. Her mother and A.B., by contrast,

testified that once they became aware that something had happened, they went to L.W.’s

room, where L.W. had remained after Ross’s departure. See id. at 176:10-178:5 and

191:25-198:9. On this point, Ross argues correctly that the testimony was inconsistent, -10-

but considered in the context of the record as a whole—which includes consistent,

credible evidence that Ross illegally entered L.W.’s residence, restrained her and then

raped her—the inconsistency among the descriptions of the minutes immediately

afterward could reasonably be characterized simply as mistaken recollections.

{¶ 21} Next, Ross criticizes the trial court’s consideration of the DNA evidence

obtained from L.W.’s underwear. In Ross’s view, the “trial court asked questions [of the

expert witness who testified regarding the DNA evidence] and went from [Ross] ‘cannot

be excluded’ as a possible contributor [to the sample analyzed by the expert] to only [Ross

or Ross]’s identical twin could have left the DNA.” Appellant’s Brief 8. That is, Ross

faults the trial court for purportedly misunderstanding the expert’s testimony. The expert

testified that

[a]t [her] laboratory, [she and her colleagues] are very conservative in [their]

wording. Anytime [they] state that [they] cannot exclude [a specific person

as the source of a given sample], it means that [they] are, in fact, seeing

[that person’s] DNA present [in] that [sample]. Only, to be conservative,

rather than state [that the person’s] DNA is present [in the sample], [they]

state [that they] cannot exclude that [person], which means that [they] are

seeing [the person’s] DNA types present [in] the [sample].

Transcript Vol. III, 23:21-24:5. After listening to the expert’s explanation, the trial court

asked whether she could “say with any certainty that [Ross’s] DNA [was] found on the

underwear,” and the expert responded that although she could state with certainty only

that Ross could not be excluded as a possible source of the DNA she found, the “most

common statistic would be that [the DNA could have been contributed to the sample only -11-

by] roughly one in every 12,000 people.” Id. at 29:21-30:14. The trial court appeared

to understand the expert’s testimony, but regardless, the court did not make any remarks

or ask any questions suggesting that it misconstrued the expert’s testimony to mean that

Ross had been conclusively proven to be the only possible source of the DNA.

{¶ 22} Finally, Ross argues that L.W. “is the only possible source of evidence of

sexual conduct,” in light of the limitations of the DNA analysis and the results of a physical

examination of L.W. completed by a nurse at Dayton Children’s Hospital, who did not

“note anything abnormal.” Transcript Vol. II, 236:13-246:25 and 244:13-245:6. Ross

insists that, as a result, his conviction for rape was not supported by sufficient evidence,

but even assuming for sake of discussion that L.W.’s testimony was the only evidence of

sexual conduct, her testimony, if deemed credible by the trial court, was sufficient of itself

to prove that sexual conduct occurred.

{¶ 23} For all of the foregoing reasons, we hold that Ross’s conviction for rape was

supported by sufficient evidence, and that the trial court did not clearly lose its way and

find Ross guilty of rape contrary to the manifest weight of the evidence. With respect to

the trial court’s verdicts on the charges of aggravated burglary and kidnapping, which

were merged into the charge of rape for purposes of sentencing, “[u]nder Ohio law,

‘[w]hen a trial court dispatches with a count through merger, any error in the verdict [on

the merged count] is rendered harmless beyond a reasonable doubt.’ ” State v.

Montgomery, 10th Dist. Franklin No. 13AP-512, 2014-Ohio-4354, ¶ 39, quoting State v.

Wolff, 7th Dist. Mahoning No. 2007 MA 166, 2009-Ohio-2897, ¶ 70. Consequently, even

if the trial court found Ross guilty of aggravated burglary and kidnapping contrary to the

manifest weight of the evidence, any such error would have been rendered harmless by -12-

the merger of those charges into the charge of rape. Ross’s assignments of error are

overruled.

III. Conclusion

{¶ 24} The trial court received quantitatively sufficient and qualitatively adequate

evidence to support Ross’s convictions. Therefore, Ross’s convictions are affirmed.

HALL, J. and WELBAUM, J., concur.

Copies sent to:

Mathias H. Heck, Jr. Sarah E. Hutnik Robert Alan Brenner Hon. Gregory F. Singer