State v. Sitzes

2023 Ohio 3915

• Court: Ohio Court of Appeals
• Decided: October 27, 2023
• Docket: 2023-CA-7
• Status: Published

Opinion

[Cite as State v. Sitzes, 2023-Ohio-3915.]

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

STATE OF OHIO : : Appellee : C.A. No. 2023-CA-7 : v. : Trial Court Case No. 22-CR-0437 : BOBBY GENE SITZES II : (Criminal Appeal from Common Pleas : Court) Appellant : :

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OPINION

Rendered on October 27, 2023

ALANA VAN GUNDY, Attorney for Appellant

ROBERT C. LOGSDON, Attorney for Appellee

.............

TUCKER, J.

{¶ 1} Defendant-appellant Bobby Gene Sitzes II appeals from his convictions for

rape. For the following reasons, we affirm.

I. Factual and Procedural History

{¶ 2} On March 27, 2022, Z.C. disclosed to a relative that Sitzes, who was her -2-

stepfather, had sexually abused her for a number of years. On March 30, 2022, her half-

brother, T.I., also disclosed that he had been sexually abused by Sitzes.

{¶ 3} Following an investigation, Sitzes was indicted on 32 counts of rape and one

count of gross sexual imposition. Specifically, he was indicted in counts one through five

for rape in violation of R.C. 2907.02(A)(1)(b) (under 13 years old) regarding Z.C. He was

indicted in counts six through 20 for rape of Z.C. in violation of R.C. 2907.02(A)(2) (force

or threat of force). In count 21, Sitzes was indicted for one count of gross sexual

imposition in violation of R.C. 2907.05(A)(4) regarding T.I.1 He was indicted on counts

22 through 32 for rape of T.I. in violation of R.C. 2907.02(A)(1)(b). Counts 22 through

26 carried specifications that the victim was under 10 years old. Finally, in Count 33, he

was indicted of one count of rape in violation of R.C. 2907.02(A)(2) in connection with T.I.

{¶ 4} A jury trial was originally scheduled for June 2022, but the trial court granted

a motion for a continuance filed by Sitzes, and the trial was rescheduled for October 18,

2022. On October 13, 2022, Sitzes filed a pro se handwritten document with the court

in which he asked the court to dismiss his trial counsel and appoint an attorney who

specialized only in criminal cases and who “does not carry a caseload.” A hearing on

the motion for new counsel was conducted October 17, 2022. Following the hearing, the

trial court denied the motion.

{¶ 5} A jury trial was conducted over the course of three days. Z.C. was a month

shy of her sixteenth birthday at the time of the trial. She testified that Sitzes first abused

her when she was 12 years old. At the time, her family resided at a home on East Cecil

1 The indictment incorrectly cited the gross sexual imposition statute as R.C. 2907.07(A)(4). However, as noted below, the State dismissed this charge. -3-

Street. She testified she was putting her baby sister to bed when Sitzes grabbed her

and penetrated her vaginally with his penis. Z.C. testified that she remembered

repeatedly thinking “I’m just 12” during the encounter. The last encounter occurred

approximately one week before Z.C. disclosed the abuse. That time, Z.C. had taken a

shower and was picking up clothing to put on when she noticed Sitzes in the room.

Sitzes then inserted his penis into her vagina, then her mouth, and finally he inserted his

fingers into her vagina. Z.C. also recounted encounters with Sitzes that occurred in his

hobby room on both a futon and a chair. She testified that sexual encounters also

occurred on the living room couch, the floor, and in the home’s stairwell. According to

Z.C., Sitzes also engaged in sexual activity with her at various times in the kitchen by the

sink, the dishwasher, and in the corner. She testified that she was almost 13 when he

first began to use a vibrator to penetrate her vagina. She also testified that he would

penetrate her mouth and vagina with his penis and fingers when the two were in her

bedroom. She testified the abuse in the bedroom occurred frequently. Z.C. testified

that Sitzes would occasionally use a condom when he engaged in intercourse with her.

Afterward, he would dispose of the used condoms in empty Tim Hortons coffee cups or

soda cans. Z.C. also testified that Sitzes sent her several communications via Facebook

which were sexually suggestive. The images contained in the communications, obtained

through a search warrant, were introduced into evidence as State’s Exhibit 17.

{¶ 6} T.I. was 14 years old when he testified at trial. He testified that Sitzes began

abusing him when the family still lived in a home on Woodward Avenue 2; the first sexual

2 The family lived on Woodward Avenue until August 2015, when they moved to the home on East Cecil Street. -4-

encounter occurred in the living room when Sitzes placed his penis in T.I.’s mouth. T.I.

testified that the abuse continued in that home and included oral and anal sex. He

testified that Sitzes would place T.I.’s penis in Sitzes’s anus. According to T.I., Sitzes

would “jump on it.” T.I. testified that the abuse continued after the family moved to East

Cecil Street and occurred in his bedroom and in Sitzes’s bedroom. T.I. testified that

Sitzes would always “whisper” or “mumble” during the encounters, and that he sounded

like he was mad at T.I. According to T.I., Sitzes later began to hit him after the sexual

conduct was completed. T.I. also testified that Sitzes would hit him if he tried to refuse

Sitzes’s advances. T.I. testified that the last encounter with Sitzes occurred a few days

prior to Z.C.’s disclosure. At that time, T.I. avoided Sitzes’s advances by hitting Sitzes’s

penis and running downstairs to his mother.

{¶ 7} The State introduced recorded audio of three phone calls made by Sitzes

while he was in jail awaiting trial. The State also introduced a video recording of Sitzes’s

police interview. The content of these recordings will be discussed during our analysis

of Sitzes’s assignments of error.

{¶ 8} At the end of the State’s case, the prosecution dismissed counts 19, 21 and

24. The jury convicted Sitzes of the remaining 30 charges. Following a sentencing

hearing, Sitzes was sentenced to an aggregate term of life in prison without the possibility

of parole. He was also designated a Tier 3 Sex Offender.

{¶ 9} Sitzes appeals.

II. Ineffective Assistance of Counsel -5-

{¶ 10} Sitzes first assignment of error states:

COUNSEL WAS INEFFECTIVE FOR FAILING TO FILE A MOTION TO

SUPPRESS AND FAILING TO REQUEST A COMPETENCY

EVALUATION.

{¶ 11} Sitzes asserts his convictions should be reversed because he was denied

the effective assistance of counsel at trial.

{¶ 12} This court reviews alleged instances of ineffective assistance of trial counsel

under the two-prong analysis set forth in Strickland v. Washington, 466 U.S. 668, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984), which was adopted by the Supreme Court of Ohio in

State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). As stated in those cases,

an ineffective assistance claim requires the defendant to show that his trial counsel

rendered deficient performance which resulted in prejudice. Strickland at paragraph two

of the syllabus; Bradley at paragraph two of the syllabus. The failure to make a showing

of either deficient performance or prejudice defeats a claim of ineffective assistance of

counsel. Strickland at 697.

{¶ 13} To establish deficient performance, Sitzes must show that his trial counsel's

performance fell below an objective standard of reasonable representation. Id. at 688. In

evaluating counsel's performance, a reviewing court “must indulge in a strong

presumption that counsel's conduct falls within the wide range of reasonable professional

assistance.” Id. at 689. “The adequacy of counsel's performance must be viewed in light

of all of the circumstances surrounding the trial court proceedings.” State v. Jackson, 2d

Dist. Champaign No. 2004-CA-24, 2005-Ohio-6143, ¶ 29, citing Strickland. -6-

{¶ 14} To establish prejudice, Sitzes must show there is “a reasonable probability

that, but for counsel's errors, the proceeding's result would have been different.” (Citations

omitted.) State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 204. “A

reasonable probability is a probability sufficient to undermine confidence in the outcome.”

Bradley at 142, quoting Strickland at 694.

{¶ 15} Sitzes first asserts that his trial counsel provided ineffective assistance by

failing to file a motion to suppress admissions made during his interview with Detective

Miller.

{¶ 16} A suspect’s right to the warnings set forth Miranda v. Arizona, 384 U.S. 436,

86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), stems from the “Fifth Amendment's prohibition

against compelled self-incrimination.” State v. Strozier, 172 Ohio App.3d 780, 2007-

Ohio-4575, 876 N.E.2d 1304, ¶ 16 (2d Dist.), citing Moran v. Burbine, 475 U.S. 412, 420,

106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). A suspect may waive his Miranda rights if the

waiver is made voluntarily, knowingly, and intelligently. State v. Dailey, 53 Ohio St.3d

88, 91, 559 N.E.2d 459 (1990), citing Miranda at 444. A waiver is valid when it is “the

product of a free and deliberate choice rather than intimidation, coercion, or deception”

and when the suspect possesses “a full awareness of both the nature of the right[s] being

abandoned and the consequences of the decision to abandon [them].” Moran at 421;

State v. Marejka, 2d Dist. Montgomery No. 27662, 2018-Ohio-2570, ¶ 14.

{¶ 17} The question of whether a waiver is knowing, intelligent and voluntary is

determined upon the totality of the facts and circumstances surrounding the interrogation.

State v. Dotson, 2d Dist. Clark No. 1997-CA-71, 1997 WL 822694, *7 (Nov. 21, 1997), -7-

citing Moran. In considering the totality of the facts and circumstances, we look at “the

age, mentality, and prior criminal experience of the accused; the length, intensity, and

frequency of interrogation; the existence of physical deprivation or mistreatment; and the

existence of threat or inducement.” Id. “A written waiver, made after advisement of

Miranda warnings but before questioning begins, is strong evidence the accused

voluntarily waived those rights. State v. Penix, 2d Dist. Clark No. 1835, 1986 WL 9094,

*16 (Aug. 18, 1986).

{¶ 18} There is no question that Sitzes was properly advised of his Miranda rights

and that he acknowledged he understood those rights. Indeed, when Miller first

mentioned reading Sitzes his Miranda rights, Sitzes responded, “Miranda rights, as in I’m

being arrested?” Miller then indicated that he was informing Sitzes of his rights because

he was not free to leave. Miller spoke plainly and at a normal pace when explaining

Sitzes’s rights. Sitzes indicated he knew how to read and write and that he understood

the rights as explained by Miller. Sitzes indicated he was willing to waive his rights, at

which time he signed the waiver form.

{¶ 19} The recording of the interview does not contain any hint of coercion or

intimidation. The interview lasted less than two hours, including breaks. Sitzes was

seated at a table, was not handcuffed, and was provided water and offered food. Indeed,

Sitzes makes no claim that he was physically deprived, mistreated, threatened, or that

Miller otherwise induced him to waive his rights.

{¶ 20} However, Sitzes claims that at the time of the interview, he was under the

influence of drugs and suffering from “mania” for which he had not taken his medication. -8-

Thus, he contends he was not competent to waive his rights. Sitzes contends that the

record shows Miller was aware of his drug use and mental illness at the time of the

interview, and that Miller even made multiple statements that Sitzes’s behavior during the

interview was consistent with the behavior of a person under the influence of drugs. He

further claims his mental illness and drug use were apparent because he would often

pause and just stare at Miller during the interview.

{¶ 21} Evidence of intoxication and/or mental illness is not dispositive of whether

a suspect has made a valid waiver, but rather is part of the consideration of the totality of

circumstances. See State v. Monticue, 2d Dist. Miami No. 2006-CA-33, 2007-Ohio-

4615, ¶ 12, citing State v. Stewart, 75 Ohio App.3d 141, 147, 598 N.E.2d 1275 (11th

Dist.1991) (intoxication will not render a defendant's waiver of his Miranda rights invalid

unless his ability to reason is sufficiently impaired); State v. Hill, 64 Ohio St.3d 313, 318,

595 N.E.2d 884 (1992) (a suspect’s diminished mental aptitude “did not undercut the

voluntariness of his statements or his waiver of his Miranda rights”).

{¶ 22} We cannot find any evidence in this record to support Sitzes’s claims that

he was intoxicated or suffering from mental illness. The recorded interview does not

contain any hint that Sitzes was confused, suffering from any mental defect, or under the

influence of any substance. He was able to quickly, and without any hesitation, provide

his personal information at the beginning of the encounter. He did not slur his words,

and his eyes, which were clearly observable, were not red. Sitzes was congenial and

engaged appropriately with Miller. From the outset of the interview, Sitzes was insightful

enough to lay the foundation for a possible defense by asserting that Z.C. was a troubled -9-

child due to having been bullied at school and being abandoned by her biological father,

suggesting that her accusations against him were the result of those problems.

{¶ 23} Further, despite Sitzes’s assertions, Miller did not, at any point during the

interview, indicate that Sitzes appeared intoxicated or impaired. Nor does the record

support Sitzes’s claim that Miller was aware of his alleged intoxication or mental illness.

Additionally, we note that the pauses to which Sitzes refers did not occur until well into

the interview after Miller informed him of the specificity of the allegations made by Z.C.

and the fact that T.I. had also made very specific allegations against him. It appears

these pauses occurred at points when Sitzes’s responses could incriminate him. At

these junctures, Sitzes was careful to redirect his statements to his claim that Z.C. was a

troubled child who had simply been acting out when she made the allegations.

{¶ 24} Trial counsel's failure to file a motion to suppress does not necessarily

constitute ineffective assistance of counsel. State v. Madrigal, 87 Ohio St.3d 378, 389,

721 N.E.2d 52 (2000). The Sixth Amendment right to effective assistance of counsel

does not require trial counsel to file a meritless motion to suppress evidence where none

of the defendant's constitutional rights were violated. State v. Lester, 126 Ohio App.3d

1, 6, 709 N.E.2d 853 (12th Dist.1998); State v. Robinson, 108 Ohio App.3d 428, 433, 670

N.E.2d 1077 (3d Dist.1996). “It is only considered ineffective assistance of counsel when

the record demonstrates the motion to suppress would have been successful if made.”

State v. Black, 2d Dist. Montgomery No. 26986, 2016-Ohio-7901, ¶ 26, citing State v.

Resendiz, 12th Dist. Preble No. CA2009-04-012, 2009-Ohio-6177, ¶ 29, citing State v.

Brown, 12th Dist. Warren No. CA2002-03-026, 2002-Ohio-5455, ¶ 11. -10-

{¶ 25} Nothing in this record, including the video recording, suggests that Sitzes

lacked an understanding of his Miranda rights or the capacity to waive them. Nor does

the record suggest that his Miranda waiver was anything other than a free and deliberate

choice made without intimidation, coercion, or deception. Thus, we conclude a motion

to suppress the admissions made during the interview would have been futile, and that

trial counsel, therefore, was not ineffective for failing to file a motion to suppress.

{¶ 26} Sitzes also claims counsel was ineffective for failing to file a motion for a

competency evaluation. However, on this record, Sitzes cannot establish he was

prejudiced by his attorney's failure to obtain such an evaluation. As stated, the interview

did not support a claim of incompetency and there is no other evidence in the record to

support his claim of incompetency. Upon this record, there is no basis to conclude that

trial counsel was ineffective for not requesting that appellant undergo a competency

{¶ 27} Because we find no support in the record for Sitzes’s claim that he was

denied the effective assistance of counsel, the first assignment of error is overruled.

III. Decision Not to Provide Sitzes New Counsel

{¶ 28} The second assignment of error asserted by Sitzes states:

THE COURT ERRED BY NOT PROVIDING MR. SITZES WITH A NEW,

AND EFFECTIVE, ATTORNEY.

{¶ 29} Sitzes contends the trial court should have appointed new counsel to

represent him. His argument is mostly based upon the allegations of ineffectiveness set -11-

forth in the first assignment of error. However, he also states that there was a breakdown

in communication between his attorney and him.

{¶ 30} The Sixth Amendment of the United States Constitution and Section 10,

Article I of the Ohio Constitution provide criminal defendants with the right to counsel.

State v. Milligan, 40 Ohio St.3d 341, 533 N.E.2d 724 (1988), paragraph one of the

syllabus. A criminal defendant does not, however, have the right to counsel with whom

he or she has a rapport or with whom he or she can develop a meaningful relationship.

State v. Henness, 79 Ohio St.3d 53, 65, 679 N.E.2d 686 (1997). “Under the federal and

state constitutions, the defendant is simply entitled to the effective assistance of legal

counsel.” State v. Hudson, 8th Dist. Cuyahoga No. 98967, 2013-Ohio-1992, ¶ 7.

{¶ 31} As stated above, trial counsel was not deficient for failing to pursue either a

motion to suppress or a competency evaluation. Thus, to the extent Sitzes’s argument

in support of this assignment of error relies upon these claims, we find it without merit.

{¶ 32} Regarding the claim that there was a lack of communication between Sitzes

and trial counsel, Sitzes’s hand-written motion indicates that he believed communication

had broken down between counsel and him because counsel misled him and because

counsel did not want to call character witnesses on behalf of Sitzes.

{¶ 33} “To discharge a court-appointed attorney, the defendant must show a

breakdown in the attorney-client relationship of such magnitude as to jeopardize the

defendant's right to effective assistance of counsel.” State v. Coleman, 37 Ohio St.3d

286, 525 N.E.2d 792 (1988), paragraph four of the syllabus.

{¶ 34} The record does not support Sitzes’s allegation that counsel misled him in -12-

any way. Further, the mere fact that counsel did not agree with Sitzes’s desire to call a

character witness did not render his representation ineffective. Counsel had a trial

strategy and presented a theory of the case that included establishing a motive for the

children to fabricate their allegations. Counsel further consistently faulted the State for

failing to present any physical evidence, including DNA evidence, to support its case.

Counsel also presented the testimony of Sitzes’s mother and cousin.

{¶ 35} Based upon the foregoing, we cannot conclude the trial court erred by failing

to dismiss trial counsel and appoint new counsel. Accordingly, the second assignment

of error is overruled.

IV. Manifest Weight of the Evidence

{¶ 36} Sitzes’s third assignment of error states:

APPELLANT’S CONVICTION IS AGAINST THE MANIFEST WEIGHT OF

THE EVIDENCE.

{¶ 37} Sitzes asserts that his convictions were not supported by the manifest

weight of the evidence. In support, he argues that the State did not present any medical

testimony, physical evidence, or DNA evidence to support its case. He also asserts that,

because one of the children (not named in the brief or the record) had previously made

accusations of sexual assault, his/her testimony was not credible. Additionally, Sitzes

notes that, during cross-examination, T.I. agreed that his allegations against Sitzes

bolstered Z.C.’s allegations.

{¶ 38} When an appellate court reviews whether a conviction is against the -13-

manifest weight of the evidence, “[t]he court, reviewing the entire record, weighs the

evidence and all reasonable inferences, considers the credibility of the witnesses and

determines whether in resolving conflicts in the evidence, the jury clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed and

a new trial ordered.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997),

quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). A

case should not be reversed as being against the manifest weight of the evidence except

“in the exceptional case in which the evidence weighs heavily against the conviction.”

(Emphasis added.) Id.

{¶ 39} Further, “[b]ecause the factfinder * * * has the opportunity to see and hear

the witnesses, the cautious exercise of the discretionary power of a court of appeals to

find that a judgment is against the manifest weight of the evidence requires that a

substantial deference be extended to the factfinder's determinations of credibility. The

decision whether, and to what extent, to credit the testimony of particular witnesses is

within the peculiar competence of the factfinder, who has seen and heard the witnesses.”

State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684, *5 (Aug. 22, 1997).

Thus, this court will not substitute its judgment for that of the trier of fact on the issue of

witness credibility unless it is patently apparent that the trier of fact lost its way. State v.

Bradley, 2d Dist. Champaign No. 1997-CA-03, 1997 WL 691510, *4 (Oct. 24, 1997), citing

Thompkins and Martin.

{¶ 40} We first note that the issue of whether either child had made prior

allegations of sexual abuse is not part of the appellate record. Thus, it cannot be a factor -14-

in whether the convictions were against the manifest weight of the evidence. We also

note that the State was not required to present any medical, physical, or DNA evidence

to corroborate the testimony provided by the children. See State v. Johnson, 112 Ohio

St.3d 210, 2006-Ohio-6404, 858 N.E.2d 1144, ¶ 53 (corroboration of victim testimony in

rape cases is not required.). Thus, we find no merit in the claim that the absence of such

evidence rendered the convictions against the manifest weight of the evidence.

{¶ 41} Next, Sitzes questions T.I.’s credibility because he did not make his

allegations until he became aware that Z.C. had accused Sitzes of sexually assaulting

her. In support, he claims that T.I. “agreed with the statement [by defense counsel] that

[his] disclosure would add credence to [Z.C.’s] disclosure, thus, calling into question the

motive of both Children.” According to the record, defense counsel asked T.I. whether

he “[felt] like [he] could help if [he] made similar accusations?” T.I. responded, “If I made

similar accusations, I feel like we would be heard because two, two people actually raised

up.” Tr. p. 223. Sitzes appears to argue that by making this statement, T.I. essentially

admitted he fabricated allegations against Sitzes solely to bolster his sister’s claims.

Indeed, defense counsel made this suggestion during closing argument.

{¶ 42} The jury could have accepted Sitzes’s argument regarding T.I.’s

statements. However, in reviewing T.I.’s entire testimony, he indicated that he was

frightened of Sitzes. T.I. further testified that Sitzes would frequently get angry with him

and then hit him and make him stand in a corner for hours. He testified he had been

“dealing [with] it for around seven years of [his] life” and had been “afraid to say anything.”

Tr. p. 204. T.I. also testified that he did not immediately reveal his abuse after Z.C. made -15-

her disclosures because his mother was an “emotional wreck” over those allegations, and

he did not want to further upset her. However, he testified that he ultimately disclosed

the abuse because he thought eventually the authorities would discover it during their

investigation. As the trier of fact, the jury was in the best position to determine T.I.’s

credibility and, based upon the entirety of his testimony, we cannot find that the jury lost

its way in finding T.I. credible.

{¶ 43} Both children testified regarding multiple sexual encounters with Sitzes.

They were specific as to the home in which the incidents of abuse had occurred and the

specific locations within the home. Moreover, during his first recorded jail phone

conversation with his mother, Sitzes admitted he had had one sexual encounter with Z.C.,

but he stated that she had initiated the contact. He further insisted several times that he

had not forced or threatened Z.C. During a second recorded call with his mother, Sitzes

blamed the children, stating that “they came to me” and that they had “put [him] in a weird

position over and over again.” In a subsequent conversation with his wife, Sitzes

continued to blame Z.C. for initiating inappropriate contact with him. He also stated that

he had known the conduct was “not okay” but that Z.C. had continually “pushed” him and

he felt trapped.

{¶ 44} During the police interview, Sitzes made admissions regarding one sexual

encounter with each child. The first occurred when Miller stated to Sitzes that Z.C. had

indicated that Sitzes disposed of the condoms he used in empty Tim Hortons coffee cups;

Miller then stated that the police had found a cup in the trash and that it was going to be

sent for DNA testing. At that point, Sitzes stated, “there was one time about a year ago, -16-

I woke up with [Z.C.’s] mouth on my sh*t.” Sitzes stated he pushed himself away from

Z.C., who then said she just wanted “to have fun.”

{¶ 45} Later in the interview, after Miller informed Sitzes that T.I. had discussed

oral sex with the authorities, Sitzes stated, “it happened once with [T.I.] too.” Sitzes

claimed the incident had occurred about seven months prior to the interview. As

explained by Sitzes, he was asleep in his bedroom when he was awakened by T.I.

touching him. Sitzes claimed that T.I. had performed oral sex on him and that it lasted

approximately 30 minutes. Sitzes stated that when the encounter was over, T.I. “got up

and walked out of my room.” Sitzes denied initiating either encounter.

{¶ 46} From our review of the record, we cannot conclude the jury lost its way in

finding Sitzes guilty of the 30 counts of rape, as there was competent, credible evidence

provided by both children which was strongly corroborated by Sitzes admissions.

{¶ 47} The third assignment of error is overruled.

V. Conclusion

{¶ 48} All of Sitzes’s assignments of error being overruled, the judgment of the trial

court is affirmed.

WELBAUM, P.J. and LEWIS, J., concur.