[Cite as State v. Scruggs, 2019-Ohio-3043.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 107860 v. :
GREGORY SCRUGGS, JR., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: July 25, 2019
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-628628-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Christine M. Vacha, Assistant Prosecuting Attorney, for appellee.
Edward M. Heindel, for appellant.
MARY EILEEN KILBANE, A.J.:
Defendant-appellant, Gregory Scruggs, Jr. (“Scruggs”), appeals his
convictions for rape and sexual battery. For the reasons set forth below, we affirm. In January 2018, Scruggs was charged with four counts of rape, three
counts of kidnapping, and one count attempted rape.1 The charges arose from
separate incidents, involving three victims, and each was alleged to have occurred,
approximately a year apart, between June 2015 and July 2017.
In September 2018, the trial court granted Scruggs’s motion to sever
the counts pertaining to each victim. In the same month, a jury trial commenced
on one count each of rape and kidnapping pertaining to victim T.M.
At trial, 25-year-old T.M. testified that on July 23, 2017, she spent
time with her best friend, Jamica, and her cousin, Van. They drove around, drank
alcohol, and smoked marijuana. T.M. stated they bought a fifth of Hennessy and
started drinking around noon. The three shared the alcohol as they drove around.
T.M. testified that around 6:00 p.m., they stopped to visit her sister
T.M.II. While visiting her sister, T.M. exchanged text messages with a man named
Maurice Bryant (“Bryant”), whom she had met several weeks earlier. Bryant
indicated he would pick her up from her sister’s house, so they could spend time
together.
Bryant arrived at T.M.II’s house around 7:00 p.m. Bryant was
accompanied by another man, who was later identified as Scruggs. T.M. and Jamica
entered Bryant’s car and the four began driving around. Bryant and Scruggs were
drinking alcohol and offered the women a drink, but they declined. T.M. testified
1 Each rape count and the attempted rape count contained a sexually violent predator specification. The kidnapping counts contained both sexual motivation and sexually violent predator specifications. she declined because she was already drunk, had been drinking dark liquor all day
and Bryant and Scruggs were drinking light liquor.
T.M. testified that after driving around for a while, and after Bryant
made stops at several houses, they went to Scruggs’s house. Once there, the four
sat around watching television. At some point, T.M. left with Bryant to go to the
liquor store. When they returned to Scruggs’s house, they continued to watch
television. T.M. testified that while they were watching television, she fell asleep on
the couch next to Bryant and Jamica, who were already asleep.
T.M. testified that at some point during the middle of the night, she
awoke because she felt as if she was falling off the couch. T.M. stated the living room
was dark, the television had been turned off, her shorts and underwear were pulled
down, and she felt someone inserting his penis into her vagina. T.M. stated she
pushed him off, pulled up her shorts, and went back to sleep because she still felt
drunk. T.M. testified that she was awakened a second time when someone inserted
his penis into her vagina. T.M. stated she again pushed him off her and pulled up
her shorts. T.M. stated that as she was trying to become fully awake, she observed
Bryant coming through the front door. T.M. told Bryant she was ready to leave and
he took her home.
T.M. testified that she called T.M.II early the next morning and
described what occurred and later went to the hospital where a rape kit was
completed and where she indicated Bryant was the perpetrator. When T.M.
reported the incidents to the police, she also indicated Bryant was the assailant. T.M. testified that she subsequently sent Bryant a text stating, “[i]f
you wanted to have sex then you could have just asked me. And then I told him to
lose my number, and he said he already did.” T.M. testified that at the time she sent
the text, she thought it was Bryant who had sexually assaulted her so she was
surprised when the rape-kit results indicated it was Scruggs who had committed the
sexual assault.
T.M.’s older sister, T.M.II, testified that on July 23, 2017, T.M. and
Jamica visited with her for a few hours. T.M.II stated her sister was drunk when she
arrived, but that she continued drinking. T.M.II testified that Jamica was also drunk
and fell asleep on the couch. T.M.II stated that someone in a dark-colored vehicle
picked up her sister and Jamica. T.M.II testified that because she did not know the
individual who picked up T.M., she communicated with her sister via text
throughout the rest of the evening. T.M.II stated that the following morning, her
sister contacted her and informed her of the sexual assault.
Scruggs testified on his own behalf. Scruggs testified he and Bryant
picked up T.M. and her friend between 6:30 and 7:00 p.m. on July 23, 2017.
Scruggs stated that he and Bryant were drinking, offered the women a drink, but
T.M. refused and informed them she would not drink light liquor because she had
been drinking dark liquor. Scruggs stated they drove around for about an hour and
then went to the house where he lived with his grandmother.
Scruggs testified that while at his grandmother’s house, they sat
around watching a show called “Power,” while T.M.’s friend slept on the couch. Scruggs stated T.M. left with Bryant and they returned about 45 minutes later.
Scruggs stated that a short time later, Bryant left again.
Scruggs testified that after Bryant left, he and T.M. began talking and
flirting with each other. Scruggs stated that he and T.M. went into a room adjacent
to the living room where they had consensual sex. Scruggs stated that T.M. asked if
he had any money and he told her that he did. Scruggs stated they had sex in two
different rooms. Scruggs testified that after they had sex, T.M. asked him not to tell
Bryant and he told her he would not. After Bryant returned, he and Scruggs dropped
T.M. and Jamica home.
The jury found Scruggs guilty of rape, but not guilty of kidnapping.
Thereafter, Scruggs pled guilty to two counts of sexual battery relating to victims
D.A. and E.W. The trial court sentenced Scruggs to five years in prison for rape and
to two years each for the sexual battery charges. The trial court ordered concurrent
sentences for a total prison term of five years.
Scruggs now appeals, assigning the following four errors for review:
Assignment of Error One
The conviction for rape was against the manifest weight of the evidence.
Assignment of Error Two
The conviction for rape was not supported by sufficient evidence.
Assignment of Error Three
Scruggs was denied his right to the effective assistance of counsel, when counsel failed to subpoena and call witnesses to testify on Scruggs’ behalf. Assignment of Error Four
The trial court erred when it did not have a full plea colloquy with Scruggs pausing to further explain the important rights he was waiving by pleading guilty to sexual battery.
Sufficiency of the Evidence
For ease of discussion, we will begin with the second assignment of
error, wherein Scruggs argues that his conviction for rape was not supported by
sufficient evidence.
Sufficiency is a test of adequacy. Whether the evidence is legally
sufficient to sustain a verdict is a question of law. State v. Williams, 8th Dist.
Cuyahoga No. 106563, 2018-Ohio-4612, citing State v. Thompkins, 78 Ohio St.3d
380, 386, 1997-Ohio-52, 678 N.E.2d 541. When reviewing the sufficiency of the
evidence to support a criminal conviction, an appellate court examines the evidence
admitted at trial to determine whether such evidence, if believed, would convince
the average mind of the defendant’s guilt beyond a reasonable doubt. Id. 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., citing State v. Jenks, 61 Ohio St.3d
259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
The jury found Scruggs guilty of rape in violation of R.C.
2907.02(A)(1)(c). This statute provides in pertinent part that “[n]o person shall
engage in sexual conduct with another” when “the other person’s ability to resist or
consent is substantially impaired because of a mental or physical condition,” and “the offender knows or has reasonable cause to believe that the other person’s ability
to resist or consent is substantially impaired because of a mental or physical
condition.”
Scruggs does not deny that sexual conduct occurred. Rather, he
argues that the state failed to offer sufficient evidence either that T.M. was
substantially impaired or that he knew, or had reasonable cause to believe, that she
was substantially impaired and not able to consent. As a result, we need only
address the element of substantial impairment.
In State v. McCall, 8th Dist. Cuyahoga No. 104479, 2017-Ohio-296,
we stated:
As for the element of substantial impairment, this court has repeatedly held that “sleep constitutes a mental or physical condition that substantially impairs a person from resisting or consenting to sexual conduct.” State v. Jones, 8th Dist. Cuyahoga No. 98151, 2012-Ohio- 5737, ¶ 30, citing State v. Clark, 8th Dist. Cuyahoga No. 90148, 2008- Ohio-3358, ¶ 21.
Id. at ¶ 7.
In the instant case, T.M. testified that she was twice awakened when
someone, whom she thought was Bryant, but actually was Scruggs, had inserted his
penis into her vagina. T.M. read the last text message she sent to Bryant, which
stated: “That’s crazy as f**k. If you wanted to f**k, you could’ve told me. You ain’t
have to do it while I was asleep but it’s cool.” The above excerpt reveals that T.M. was substantially impaired by
sleep at the time of the incidents such that she was unable to resist or consent to
Scruggs’s sexual conduct.
In addition, T.M. testified that she had been drinking for several
hours prior to being picked up by Bryant and was already drunk. T.M.II testified
that T.M. was drunk when she arrived at her house, but continued to drink. T.M.II
also testified that T.M.’s friend and drinking companion, Jamica, was so inebriated
that she slept most of time she was at T.M.II’s house. The testimony also established
that Jamica was asleep most of the time spent at Scruggs’s house.
The consumption of a large amount of alcohol over the course of just
a few hours is sufficient evidence to find that the victim was substantially impaired.
State v. Patterson, 8th Dist. Cuyahoga No. 104266, 2017-Ohio-1444, citing State v.
Kuck, 2016-Ohio-8512, 79 N.E.3d 1164, ¶ 95 (2d Dist.).
Based on the foregoing, and the physical evidence linked to Scruggs,
we conclude there was sufficient evidence presented which, if believed, would
convince the average trier of fact that Scruggs was guilty beyond a reasonable doubt
of rape.
Accordingly, the second assignment of error is overruled.
Manifest Weight of Evidence
In the first assignment of error, Scruggs argues his rape conviction is
against the manifest weight of the evidence. A manifest weight challenge questions whether the prosecution met
its burden of persuasion. State v. Tate, 8th Dist. Cuyahoga No. 97804, 2014-Ohio-
5269, rev’d on other grounds, 140 Ohio St.3d 442, 2014-Ohio-3667, 19 N.E.3d 888,
citing State v. Byrd, 8th Dist. Cuyahoga No. 98037, 2012-Ohio-5728, ¶ 27. When
considering a manifest weight challenge, a reviewing court reviews the entire record,
weighs the evidence and all reasonable inferences therefrom, considers the
credibility of the witnesses and determines whether the finder of fact clearly lost its
way. Id., citing State v. Jackson, 8th Dist. Cuyahoga No. 86542, 2006-Ohio-1938,
¶ 29. A reviewing court may reverse the judgment of conviction if it appears that 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. Id.
We note that in considering a manifest weight challenge, the trier of
fact is in the best position to take into account inconsistencies, along with the
witnesses’s manner, demeanor, gestures, and voice inflections, in determining
whether the proffered testimony is credible. State v. Frost, 8th Dist. Cuyahoga No.
106964, 2019-Ohio-93, ¶ 28, citing State v. Becker, 8th Dist. Cuyahoga No. 100524,
2014-Ohio-4565, ¶ 37, citing State v. Kurtz, 8th Dist. Cuyahoga No. 99103, 2013-
Ohio-2999, ¶ 26. Therefore, we afford great deference to the factfinder’s
determination of witness credibility. State v. High, 8th Dist. Cuyahoga No. 106198,
2018-Ohio-2236, citing State v. Ball, 8th Dist. Cuyahoga No. 99990, 2014-Ohio-
1060. As previously discussed, Scruggs does not dispute that he engaged in
sexual conduct with T.M.; rather, he argues that the jury’s conclusion that it was
without T.M.’s consent is against the manifest weight of the evidence.
Notwithstanding Scruggs’s arguments, based on the specific facts and
circumstances of this case, we conclude that the jury’s conclusion that the sexual
conduct was not consensual is not against the manifest weight of the evidence.
Ultimately, this case turned on whether the jury believed T.M.’s or Scruggs’s version
of events. The jury was in the best position to view T.M. and Scruggs, to observe
their demeanor, gestures, voice inflections, and then conclude who was more
credible.
As a result, the jury was free to accept or reject any or all of the parties’
testimony, but decided to accept T.M’s testimony that she did not and was not able
to consent to sexual conduct with Scruggs because she was asleep and drunk. In
light of the foregoing, when considering T.M.’s credibility and resolving conflicts in
the evidence, we do not find that the jury clearly lost its way in convicting Scruggs.
Accordingly, the first assignment of error is overruled.
Ineffective Assistance of Counsel
In the third assignment of error, Scruggs argues he was denied the
effective assistance of counsel because of counsel’s failure to subpoena and call
various witnesses to testify on his behalf.
For a defendant to establish a claim for ineffective assistance of
counsel, he or she must demonstrate that trial counsel’s performance was deficient and that the deficient performance prejudiced his or her defense. Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.
Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). To establish prejudice, the
defendant must demonstrate there is a “reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland at 694.
In evaluating a claim of ineffective assistance of counsel, a court must
give great deference to counsel’s performance. Id. at 689. “A reviewing court will
strongly presume that counsel rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.” State v.
Pawlak, 8th Dist. Cuyahoga No. 99555, 2014-Ohio-2175, ¶ 69. Thus, “[t]rial strategy
or tactical decisions cannot form the basis for a claim of ineffective counsel.” State
v. Logan, 8th Dist. Cuyahoga No. 106868, 2018-Ohio-5350, citing State v. Foster,
8th Dist. Cuyahoga No. 93391, 2010-Ohio-3186, ¶ 23, citing State v. Clayton, 62
Ohio St.2d 45, 402 N.E.2d 1189 (1980).
Scruggs argues defense counsel was ineffective for failing to call
Bryant as a witness, who could have testified that T.M. was coherent, was able to
carry on a full conversation, and most importantly was able to consent to sexual
intercourse. Scruggs also argues that defense counsel was ineffective for failing to
call Jamica as a witness, who could have testified whether T.M. was looking for a
sexual relationship when she contacted Bryant and could also testify whether T.M.
was in a position to consent. Generally, an attorney’s determination of which witnesses to call falls
within the realm of trial strategy and will not be second-guessed on appeal. State v.
White, 8th Dist. Cuyahoga No. 101576, 2017-Ohio-7169, citing State v. Treesh, 90
Ohio St.3d 460, 490, 2001-Ohio-4, 739 N.E.2d 749; State v. Vargas, 8th Dist.
Cuyahoga No. 97376, 2012-Ohio-2767, ¶ 14. Thus, the mere failure to call witnesses
does not render counsel’s assistance ineffective absent a showing of prejudice.
Here, defense counsel’s decision not to call Bryant and Jamica as
witnesses falls within the realm of trial strategy. We also find there is no showing of
prejudice by defense counsel’s decision. Scruggs’s own testimony established that
Bryant was not present when the sexual conduct occurred. Further, by Scruggs’s
own testimony, Jamica was asleep when the sexual conduct occurred.
As a result, Scruggs was not prejudiced and therefore, his claim of
ineffective assistance of counsel is unpersuasive.
Accordingly, the third assignment of error is overruled.
Guilty Plea
In the fourth assignment of error, Scruggs argues the trial court erred
when it failed to have a full plea colloquy on the sexual battery charges. We find no
merit to this assertion.
Crim.R. 11(C)(2)(a) provides in pertinent part that “the court shall not
accept a plea of guilty or no contest without first addressing the defendant
personally and * * * [d]etermining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty
involved[.]”
The requirements of Crim.R. 11(C)(2)(a) are nonconstitutional, and
thus, this court reviews “to ensure substantial compliance” with this rule. State v.
Maddox, 8th Dist. Cuyahoga Nos. 106505 and 106506, 2018-Ohio-3056, citing
State v. Esner, 8th Dist. Cuyahoga No. 90740, 2008-Ohio-6654. “Under this
standard, a slight deviation from the text of the rule is permissible; so long as the
totality of the circumstances indicates that ‘the defendant subjectively understands
the implications of his plea and the rights he is waiving.’” State v. Clark, 119 Ohio
St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 31, quoting State v. Nero, 56 Ohio
St.3d 106, 564 N.E.2d 474 (1990).
Scruggs does not contend that the trial court failed to engage in a
proper Crim.R. 11 colloquy. Instead, Scruggs claims the trial court should have been
more detailed.
In the instant case, prior to accepting Scruggs’s pleas, the trial court
asked if he was threatened or coerced and his response was no; asked if he was
promised anything to enter the pleas and his response was no; asked if he
understood the allegations and his response was yes; and when asked if he
understood a plea of guilt is a complete admission, his response was yes.
In addition, the trial court carefully reviewed the offense to which
Scruggs would be pleading guilty, identifying the potential sentence he could
receive. Scruggs confirmed that he understood. The trial court specifically asked if Scruggs understood that the pleas could not be accepted if he did not understand
that he would be waiving important constitutional rights. The trial court then
proceeded to review all the constitutional rights that Scruggs would be waiving by
entering the pleas. In each instance, Scruggs indicated he understood.
Following a thorough review of the record, we find that, under the
totality of the circumstances, Scruggs subjectively understood the consequences and
implications of his guilty pleas. As a result, his guilty pleas were knowingly,
intelligently, and voluntarily made and the trial court did not err in accepting his
guilty pleas.
Accordingly, the fourth assignment of error is overruled.
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
conviction having been affirmed, any bail pending 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.
______________________________________ MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE
FRANK D. CELEBREZZE, JR., J., and EILEEN A. GALLAGHER, J., CONCUR