[Cite as State v. Trotter, 2012-Ohio-2760.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 97064
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
DAVID C. TROTTER DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-525504
BEFORE: Sweeney, J., Celebrezze, P.J., and Keough, J.
RELEASED AND JOURNALIZED: June 21, 2012 ATTORNEYS FOR APPELLANT
Robert L. Tobik, Esq. Cuyahoga County Public Defender By: Nathaniel McDonald, Esq. Assistant Public Defender 310 Lakeside Avenue, Suite 400 Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason, Esq. Cuyahoga County Prosecutor By: Scott Zarzycki, Esq. Assistant County Prosecutor Eighth Floor, Justice Center 1200 Ontario Street Cleveland, Ohio 44113 JAMES J. SWEENEY, J.:
{¶1} Defendant-appellant David Trotter (“defendant”) appeals his rape and
kidnapping convictions and associated 60-year prison sentence. After reviewing the facts
of the case and pertinent law, we affirm in part, reverse in part, and remand for merger of
allied offenses and a new sentencing hearing.
{¶2} On March 26, 2009, 14-year-old B.B. went to a party with three
high-school-aged boys she knew. The party was at defendant’s house, and he supplied
the teens with alcohol. B.B. and her friends knew about the party because they went to
school with two of defendant’s sons. At some point in the night, B.B. became drunk and
threw up. Defendant cleaned her up and put her in a bedroom downstairs. When he
checked on B.B. after awhile, he saw that she had thrown up again. Defendant cleaned
her up again and put her in an upstairs bedroom.
{¶3} B.B. allegedly woke up to defendant performing oral sex on her. He then
began having vaginal intercourse with her, and she told him to stop. Defendant left the
bedroom after a minute or two, and one of B.B.’s friends drove her home later that
morning.
{¶4} Defendant was charged with four counts of rape and two counts of
kidnapping related to this incident. Defendant was also charged with 11 counts related to
child pornography found on his home computer. In January 2010, a bench trial began,
however, after six days of testimony, the court granted a sua sponte motion to suppress the evidence found on defendant’s computer. The state appealed this ruling, and this court
reversed. State v. Trotter, 8th Dist. No. 94648, 2011-Ohio-418.
{¶5} In February 2011, trial resumed, and on March 22, 2011, the court found
defendant guilty of two counts of forcible rape in violation of R.C. 2907.02(A)(2); two
counts of substantial impairment rape in violation of R.C. 2907.02(A)(1)(c); and two
counts of kidnapping in violation of R.C. 2905.01(A)(4). The court acquitted defendant
of all counts relating to the child pornography.
{¶6} The court sentenced defendant to ten years in prison on each of the six
counts and ran them consecutively, for an aggregate prison sentence of 60 years.
{¶7} Defendant appeals and raises four assignments of error for our review.
{¶8} I. “Mr. Trotter’s convictions are against the manifest weight of the
evidence, in violation of his right to due process of law under the 14th Amendment to the
Constitution of the United States and Article I, Section 14, of the Ohio Constitution.”
{¶9} Specifically, defendant argues that the timeframe of events to which B.B.
testified cannot be accurate given the other witnesses’s testimony.
{¶10} To warrant reversal of a verdict under a manifest weight of the evidence
claim, this 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 evidence, the jury clearly lost its way and created such a manifest miscarriage
of justice that the judgment must be reversed and a new trial ordered. State v.
Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). {¶11} Defendant was convicted of two counts of forcible rape in violation of R.C.
2907.02(A)(2), which states that “[n]o person shall engage in sexual conduct with another
when the offender purposely compels the other person to submit by force or threat of
force”; two counts of substantially impaired rape in violation of R.C. 2907.02(A)(1)(c),
which states that “[n]o person shall engage in sexual conduct with another * * * when * *
* [t]he 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 [this]”; and two counts of kidnapping in violation of R.C. 2905.01(A)(4), which
states that “[n]o person, by force, threat, or deception * * * shall remove another from the
place where the other person is found or restrain the liberty of the other person * * * [t]o
engage in sexual activity * * * with the victim against the victim’s will * * *.”
{¶12} Our review of the record shows that the following testimony was presented
at trial:
{¶13} B.B. testified that on March 26, 2009, she went to a party at defendant’s
house with M.K., C.M., and W.G. B.B. did not know defendant, but she was in the
eighth grade with his son J.T. When B.B. and her friends arrived at defendant’s, J.T. was
not home, however, defendant and defendant’s friend were there. Defendant and M.K.
went to buy alcohol and came back with vodka and orange juice. B.B. drank two to three
screwdrivers between approximately 9:00 and 11:00 p.m. B.B. remembered feeling sick
and eating barbecue chicken and sherbert ice cream, thinking “food would make it feel
better.” However, this did not work, and B.B. recalled vomitting on herself and C.M. on the couch in the living room. She remembered defendant and C.M. taking her to the
bathroom to get cleaned up because she “barely could stand.” The next thing B.B.
recalled after the bathroom was waking up in the upstairs bedroom.
[Defendant] was laying on my knees. I only had a T-shirt on, nothing else. My pants were at the end of the bed. So was my phone. Um — um, he began to, um, have oral sex with me. * * * I kept saying, no, and stop. * * * It didn’t really have a big effect, but he stopped maybe 20, 30 seconds after he started. * * * I didn’t feel good at all. I felt vulnerable, like I couldn’t move. And like, I felt like my body just had stopped, like I couldn’t get up or anything. Like [the] only thing I could do was speak.
{¶14} Asked what happened after defendant stopped performing oral sex on her,
B.B. testified that “he got on top of me, and started having sex with me,” explaining that
defendant put his penis inside her vaginal area. Defendant was on top of B.B., and she
was “[s]creaming, and sort of struggling. And like, I said — like I said before, I couldn’t
move.” B.B. testified that she recalled “[t]elling him to stop, and get off me. And, like,
I barely could scream. Like it felt like I couldn’t scream. But I was trying my hardest.”
After “a minute or so,” defendant got off of B.B., put his pants back on, left the room,
and got on the computer in the hall.
{¶15} B.B. put her clothes on and went downstairs. M.K. was asleep on the
couch and C.M. was on the floor watching television. Later that morning, M.K. took her
home. Later that day, she sent text messages to M.K. and C.M. telling them what
defendant allegedly did to her. The following Monday, B.B. told her mother what
happened. B.B. testified that she waited until Monday because she was scared. B.B.’s mom called the police, who began an investigation, and B.B. was taken to the hospital for
a rape kit.
{¶16} M.K. testified that he, B.B., C.M., and W.G. went to a party at defendant’s
house on March 26, 2009. When they arrived, M.K. asked defendant to buy them
alcohol. M.K. took defendant to the liquor store, and defendant purchased a case of beer
and vodka. Back at defendant’s house, everyone, including B.B., began drinking. B.B.
started “stumbling around, and she started not to feel good.”
{¶17} Sometime between 11:00 p.m. and midnight, M.K. offered B.B. a ride
home, but she refused because she did not want to get in trouble for drinking. M.K.
witnessed defendant offer to call B.B.’s mom and tell her that B.B. was spending the night
at a friend’s. Defendant made this phone call from B.B.’s cell phone.
{¶18} M.K. took W.G. and another boy home, then returned to the party. When
M.K. got back to defendant’s house, B.B. was passed out in an upstairs bedroom.
Defendant and C.M. were downstairs listening to music and smoking marijuana. Around
2:00 a.m., Sean Wood came to defendant’s house with more marijuana.
{¶19} M.K. testified that approximately one hour later, defendant said, “[W]e
can go upstairs, and we can do whatever we want to [B.B.] because she’s passed out, and
she wouldn’t realize anything.” After awhile, defendant turned up the music, and he and
Wood went upstairs. M.K. and C.M. got suspicious and “went to see what was going
on up there.” They saw defendant on the computer in the hall with Wood standing next
to him. B.B. was asleep in one of the bedrooms. M.K. and C.M. came back downstairs. After 15 to 20 minutes, Wood came downstairs, and five minutes later, defendant came
back downstairs. M.K. did not see B.B. again until she came downstairs the next
morning, and he drove her home. He received a text message from B.B. later that day
describing what defendant did to her.
{¶20} R.F. testified that he is a senior in high school and in the same class as
defendant’s son. R.F. was at the party at defendant’s house on March 26, 2009. R.F. left
the party around 11:00 p.m., and at that time, B.B. was intoxicated. R.F. went back to
defendant’s late the next morning, and defendant told R.F. that B.B. was drunk the night
before and had stayed over. Defendant also made a comment about B.B.’s breasts.
Defendant told R.F. that B.B. got sick, so he had to undress her and put her in the upstairs
bedroom.
{¶21} C.M. testified that he, M.K., W.G., and B.B. went to a party at defendant’s
house on March 26, 2009. When they arrived, M.K. took defendant to buy alcohol.
After they began drinking, C.M. overheard defendant talking to B.B.’s mom on the phone
and telling her that B.B. would be spending the night at a friend’s house. B.B. was
drinking vodka and orange juice, and beer, and at one point, B.B. threw up when she was
sitting next to him on the couch. C.M. and defendant took B.B. to the bathroom to clean
her off and change her shirt, then put her into a bedroom. They went to check on her
after about an hour, and she had thrown up in the bed. Defendant cleaned and changed
her again, and put her into another bedroom upstairs. {¶22} Sometime around 2:00 a.m., Wood arrived and Wood, defendant, and
C.M. smoked marijuana. Defendant said to Wood, “there is a drunken 14 year old
upstairs.” Approximately one hour later, defendant turned the music up and went
upstairs. C.M. was curious about what was going on, went upstairs, and saw defendant
on his computer. Defendant came downstairs about ten minutes later. Defendant said
that B.B. tried to unzip his zipper, and she pulled out his penis and gave him oral sex.
{¶23} According to C.M., B.B. came downstairs at about 5:45 a.m. and sat in a
brown chair right above where C.M. was lying on the floor. Defendant left the room
when B.B. entered it. B.B. whispered to C.M. that defendant had touched her.
Defendant came back into the room, and C.M. told B.B. they would talk about it later.
C.M. saw vomit in B.B.’s hair and told her to shower. She did, and he took her home
sometime around 9:30 a.m.
{¶24} Sean Wood testified that he arrived at defendant’s house in the early
morning hours of March 27, 2009, to smoke marijuana. Wood’s recollection of events
was hazy to say the least, and several attempts to refresh his memory with the statement he
allegedly made to the police failed. This issue will be discussed in further detail in
defendant’s second assignment of error, but for now, Wood eventually testified to the
following, either via his memory or via the statement he made to police.
{¶25} He learned from defendant prior to arriving that there was a drunk
14-year-old girl passed out in an upstairs bedroom. When he got to defendant’s, there
were two young men there that he did not know. They sat around drinking and smoking, and eventually he and defendant went upstairs. Wood went on defendant’s computer in
the hallway, and defendant went in the bedroom with the girl. Defendant stayed in the
bedroom for 35 to 45 minutes, and Wood heard “kissing noises” coming from the room.
{¶26} Although Wood did not recall saying this to the police, according to his
statement, Wood told the police that when defendant exited the bedroom, defendant said
he had sex with B.B. After defendant went downstairs, and while Wood was still on the
computer, one of the young men came upstairs to check on B.B. When the blanket was
lifted, Wood could see that she just had a t-shirt on and she was sleeping. Wood testified
that his intention when he went upstairs with defendant was to have sex with the girl.
However, at some point, he changed his mind.
{¶27} Detective David Sheridan of the Parma Police Department testified that he
was assigned this case after B.B. reported being sexually assaulted by defendant at a party
at his house. Det. Sheridan interviewed B.B., defendant, and others who were at the
party. Det. Sheridan went to defendant’s home and collected B.B.’s hoodie sweatshirt,
which was still soiled with vomit from the night of the party.
{¶28} Det. Sheridan testified that defendant admitted to having the party and
supplying the teens with alcohol on the night in question. Defendant’s statement to the
police allegedly corroborated the story about B.B. getting sick twice, being cleaned up
twice, and ending up in the upstairs bedroom. According to defendant, however, when
he and Woods were upstairs using the computer, it was Woods who went into the bedroom
and sexually abused B.B. {¶29} In the instant case, defendant’s argument that his convictions are against
the manifest weight of the evidence is based on his assertion that all the testimony
“demonstrates that [he] was not upstairs at the time the alleged assault [B.B.] described
had to occur.” Our review of the record, however, shows otherwise. M.K., C.M., and
Wood, who were in defendant’s house when the rape was alleged to have occured,
testified that defendant was upstairs when B.B. was passed out, and defendant knew that
she was passed out because she drank too much. According to Wood, defendant was
alone in the room with B.B. for 35 to 45 minutes, and Wood heard kissing noises coming
from the room.
{¶30} Defendant made it known that they could do whatever they wanted to
B.B. He allegedly told Wood that he had sex with her, and he told C.M. that B.B. gave
him oral sex. B.B. told C.M. that defendant touched her immediately after it happened,
and she texted both C.M. and M.K. with the information later that day. This testimony,
coupled with B.B.’s recollection of the events, is enough to show that defendant’s
convictions were not against the manifest weight of the evidence, and his first assignment
of error is overruled.
{¶31} In defendant’s second assignment of error, he argues as follows:
{¶32} II. “The trial court erred when it admitted inadmissible hearsay evidence
in violation of Rules 612 and 802 of the Ohio Rules of Evidence.”
{¶33} Specifically, defendant argues that the rule regarding refreshing a
witness’s recollection using previous statements was violated during Wood’s testimony. According to defendant, the trial court permitted and/or ordered Wood to read portions of
his statement to the police into the record in violation of Evid.R. 612, and this violation
was prejudicial as it went “straight to the heart of the matter — whether [defendant] had
sex with [B.B.].”
{¶34} Under Evid.R. 612, which is a “‘present recollection refreshed’ situation,
the witness looks at the memorandum to refresh his memory of the events, but then
proceeds to testify upon the basis of his present independent knowledge.” State v. Scott,
31 Ohio St.2d 1, 5-6, 285 N.E.2d 344 (1972). “However, a party may not read the
statement aloud, have the witness read it aloud, or otherwise place it before the jury.”
State v. Ballew, 76 Ohio St.3d 244, 254, 667 N.E.2d 369 (1996).
{¶35} Evid.R. 612 is distinguishable from Evid.R. 803(5), which is a
‘past recollection recorded’ situation, [in which] the witness’s present testimony is to the effect that his recollection was complete at the time the memorandum was written and that such recollection was accurately recorded therein.
Scott, at 6. Under Evid.R. 803(5), the witness must have made or adopted the statement
“when the matter was fresh in his memory,” and “the past recollection recorded correctly
reflects the knowledge the witness had at the time it was recorded.” State v. Bailey, 8th
Dist. No. 81498, 2003-Ohio-1834, ¶ 32. If Evid.R. 803(5) is satisfied, the statement
itself may be read into evidence.
{¶36} In the instant case, Wood testified that he looked at the statement he made
to the police about the night in question before he testified and while he was on the
witness stand, but that it did not refresh his memory. For example, asked what defendant said to Wood on the phone on March 26, 2009, Wood replied, “I don’t remember. I read
[the statement], but it doesn’t look familiar.” Wood also testified that he did not
remember what defendant said when defendant came out of the upstairs bedroom where
B.B. was. The state instructed Wood to read his statement to the police, and after doing
so, Wood testified, “I don’t remember him saying that to me, though.”
{¶37} Over defense objections, Wood read portions of his statement into the
record and, after prompts from the court, testified to certain things from memory. The
hearsay statements that Wood improperly read into the record are as follows: First, before
Wood arrived at defendant’s house on the night in question, defendant allegedly told
Wood on the phone that there was a drunk 14-year-old passed out at defendant’s house.
And second, defendant allegedly said that he had sex with B.B. when he walked out of the
upstairs bedroom where B.B. was passed out.
{¶38} Further examination of Wood regarding his statement was improper under
Evid.R. 612, because Wood testified that it did not refresh his memory. Additionally, the
State did not establish that the statement accurately reflected Wood’s knowledge at the
time of the police interview. In this regard, Wood’s testimony regarding his statement
was improper under Evid.R. 803(5).
{¶39} The admissible portions of Wood’s testimony — that which he testified to
from memory — merely corroborated B.B.’s testimony. In this case, B.B.’s testimony,
standing alone, is enough to convict defendant. State v. Blankenship, 8th Dist. No. 77900
(Dec. 13, 2001) (“[t]here is no requirement that a rape victim’s testimony be corroborated as a condition precendent to conviction”). The portions he read from his statement were
inadmissible hearsay, and we must determine whether they were prejudicial or harmless.
“The dispositive question is whether the hearsay testimony of these witnesses constituted
harmless error.” State v. DeMarco, 31 Ohio St.3d 191,196, 509 N.E.2d 1256 (1987).
{¶40} We are reminded that the case at hand was tried to the court and not a jury.
“In a bench trial, there is a presumption that the court considered only relevant, material,
and competent evidence.” State v. Brown, 8th Dist. No. 87947, 2007-Ohio-287, ¶ 15.
Without the hearsay evidence, defendant’s convictions are supported by consistent
testimony from B.B., which is corroborated by M.K., C.M., and Wood. The detective
who investigated the case interviewed these parties, and their statements were consistent.
Furthermore, the court found defendant not guilty of various counts unrelated to this
appeal. Nothing in the record suggests that the court relied on prejudicial evidence to
convict defendant of the offenses at hand, and his second assignment of error is overruled.
{¶41} Defendant’s third assignment of error states the following:
{¶42} III. “The trial court violated the United States and Ohio Constitutions, as
well as R.C. 2941.25(A), when it failed to merge Mr. Trotter’s convictions for rape in
counts one and two with this convictions for rape in counts three and four, and failed to
merge his convictions for kidnapping with his convictions for rape.”
{¶43} Specifically, defendant argues that his convictions should have merged into
two counts for sentencing purposes. The state partially concedes this assignment of error, arguing that defendant’s convictions should have merged into two counts of rape and one
count of kidnapping.
{¶44} The Ohio Supreme Court established the proper analysis for determining
whether offenses qualify as allied offenses subject to merger pursuant to R.C. 2941.25 in
State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, ¶ 48-50.
In determining whether offenses are allied offenses of similar import under R.C. 2941.25(A), the question is whether it is possible to commit one offense and commit the other with the same conduct, not whether it is possible to commit one without committing the other. * * * If the offenses correspond to such a degree that the conduct of the defendant constituting commission of one offense constitutes commission of the other, then the offenses are of similar import.
If the multiple offenses can be committed by the same conduct, then the court must determine whether the offenses were committed by the same conduct, i.e., “a single act, committed with a single state of mind.”
If the answer to both questions is yes, then the offenses are allied offenses of similar import and will be merged. (Citation omitted.)
Id.
{¶45} We first analyze whether defendant’s four rape convictions merge. Oral
and vaginal rape are not allied offenses. State v. Nichols, 66 Ohio St.3d 431, 435, 613
N.E.2d 225 (1993). We now turn to whether forcible and substantially impaired rape are
allied offenses. The elements of forcible rape include “when the offender purposely
compels the other person to submit by force or threat of force.” R.C. 2907.02(A)(2).
The elements of substantially impaired rape include when the victim’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 [this].” {¶46} In analyzing these offenses under Johnson, we find that they can be
committed by the same conduct. In other words, an offender could forcibly rape a
substantially impaired victim. Defendant was convicted of one count of each for oral
rape. We must determine whether, under the facts of this case, they were committed with
a single state of mind. B.B. testified that she woke up to find defendant between her legs
performing oral sex on her, and although she told him to stop, he did not do so until
approximately 30 seconds later. We find this to be one single act, and the convictions
should merge.
{¶47} Defendant was also convicted of one count of vaginal rape. Defendant got
on top of B.B. and had vaginal sex with her. She told him to stop and get off of her, but
she felt as if she could not move. We find this to be a second single act of rape, and the
convictions should merge. See State v. H.H., 10th Dist. No. 10AP-1126,
2011-Ohio-6660, ¶ 16 (defendant’s “convictions for forcible rape and rape of a person
whose ability to resist or consent was substantially impaired due to a mental or physical
condition should have merged for sentencing”).
{¶48} We turn to whether these two acts of rape merge with defendant’s two
kidnapping convictions. The state concedes that one of the kidnapping convictions
merges into the rape convictions because it occurred when defendant held the victim down
while he was raping her, but argues that the other kidnapping occurred when defendant
took B.B. to the upstairs bedroom. However, this is not what the state argued at trial and
this is not supported by the record. {¶49} Defendant was convicted of two counts of kidnapping in violation of R.C.
2905.01(A)(4), which states that
[n]o person, by force, threat, or deception * * * shall remove another from the place where the other person is found or restrain the liberty of the other person * * * [t]o engage in sexual activity * * * with the victim against the victim’s will * * *.
{¶50} In State v. Logan, 60 Ohio St.2d 126, 136, 397 N.E.2d 1345 (1979), the
Ohio Supreme Court held that a kidnapping was not an allied offense, because the
“detention and asportation of the victim was incidental to the crime of rape * * *.” In
State v. Williams, 8th Dist. No. 94616, 2011-Ohio-925, ¶ 61, this court found that
Williams’s kidnapping conviction should have merged with his rape convictions because
“the same conduct supports both convictions.” The reasoning in Williams was based on
the indictment, which contained a sexual motivation specification. “[T]herefore
appellant’s animus for the kidnaping and rape was the same or, stated differently, the rape
and kidnaping were a single act, committed with a single state of mind.” Id.
{¶51} In the instant case, according to B.B.’s testimony, defendant held her down
while orally and vaginally raping her. Under the facts of this case, it is impossible to
separate the restraint of her liberty from the rape as they occurred simultaneously and were
committed with a single state of mind. In following Logan and Williams, we find that
defendant’s kidnapping convictions merge with his rape convictions, such that convictions
for two offenses survive.
{¶52} Accordingly, the court erred by imposing multiple punishments for allied
offenses. Pursuant to State v. Whitfield, 124 Ohio St.3d 319, 325, 2010-Ohio-2, 922 N.E.2d 182, ¶ 25, we “reverse the judgment of conviction and remand for a new
sentencing hearing at which the state must elect which allied offense it will pursue against
the defendant.”
{¶53} In defendant’s fourth and final assignment of error, he argues as follows:
{¶54} IV. “The trial court abused its discretion when it failed to weigh properly
the statutory sentencing factors concerning recidivism.”
{¶55} This assignment of error is made moot by our disposition of defendant’s
third assignment of error. App.R. 12(A)(1)(c).
{¶56} Judgment affirmed in part, reversed in part, and remanded for a new
sentencing hearing.
It is ordered that appellee and appellant split the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s convictions having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for
resentencing.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
JAMES J. SWEENEY, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and KATHLEEN ANN KEOUGH, J., CONCUR