[Cite as State v. Vento, 2018-Ohio-1799.]
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : Hon. Earle E. Wise, Jr., J. -vs- : : RANDY VENTO : Case No. 2017 AP 03 0006 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Appeals, Case No. 2016 CR 06 0167
JUDGMENT: Affirmed
DATE OF JUDGMENT: May 7, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RYAN STYER GEORGE URBAN Prosecuting Attorney 116 Cleveland Aveue NW MICHAEL ERNEST Suite 808 Assistant Prosecuting Attorney Canton, OH 44702 125 East High Avenue New Philadelphia, OH 44663 Tuscarawas County, Case No. 2017 AP 03 0006 2
Wise, Earle, J.
{¶ 1} Defendant-Appellant Randy Vento appeals the February 24, 2017 judgment
of conviction and sentence of the Court of Common Pleas of Tuscarawas County, Ohio.
Plaintiff-Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On June 2, 2016, Vento was seen by residents and law enforcement riding
an orange bicycle, first in Dover, Ohio where he had contact with a Dover City police
officer, and then in Mineral City, Ohio. In Mineral City, a resident found Vento lying on a
picnic table in the city park. Later that afternoon, X.F, an 11 year-old Mineral City resident
was walking home from a friend's house when he encountered Vento in the park near a
wooded path.
{¶ 3} Vento told X.F he was lost and asked for help. X.F refused. Vento stood up
and started toward X.F and X.F ran. Vento caught X.F and dragged him into the woods.
Vento removed his black hoodie and tied it around X.F's head so he could not see,
removed X.F's clothing, and smashed his cell phone. Vento proceeded to rape and
brutally beat X.F.
{¶ 4} Meanwhile, X.F's mother had become concerned when X.F did not answer
his phone and went looking for him with neighbors and other family members. X.F heard
them calling for him, but each time he tried to call out, Vento shoved a stick in X.F's mouth
to silence him. At some point Vento fled and X.F passed out.
{¶ 5} Upon regaining consciousness, X.F crawled out of the woods. He was
discovered by a neighbor naked, severely beaten and bloody, and with Vento's sweatshirt Tuscarawas County, Case No. 2017 AP 03 0006 3
still tied around his neck. Asked who had done this to him, X.F stated a black man wearing
a black hoodie and green pants had grabbed him off the street. A reverse 911 call was
issued to the Mineral City Area asking residents to notify law enforcement if they saw a
man matching the description given by X.F.
{¶ 6} Within minutes of issuing the reverse 911 call, a resident returned the call
and stated a man matching the description had run out of the woods near the village park,
and ran into her car in his haste. When deputies responded to the location, they found
Vento shirtless and wearing green pants. He was taken into custody.
{¶ 7} Tuscarawas sheriff's deputies searched of the area where X.F was found.
Near the trailhead, an orange bicycle was found along with several personal items
including hospital records bearing Vento's name and date of birth. Further into the woods
they discovered a tree that appeared to have blood on it as well as some clothing which
appeared to be bloody.
{¶ 8} X.F was transported by ambulance to Akron Children's hospital with life-
threatening injuries. He underwent multiple surgeries and tests during a 6-day stay. X.F
advised medical personnel that Vento had raped him and therefore a rape kit was also
collected. X.F's injuries included multiple abrasions and contusions to his face and body,
multiple skull fractures, two fractured fingers, and deep lacerations to his face and mouth.
{¶ 9} Later laboratory testing indicated that blood found on Vento's back
belonged to X.F, and X.F's DNA was present in Vento's underwear. Testing on the hoodie
recovered from around X.F’s neck contained DNA from both X.F and Vento. Additionally,
seminal fluid was present on the anal and perianal swabs from X.F's rape kit. Tuscarawas County, Case No. 2017 AP 03 0006 4
{¶ 10} In August 2016, the Tuscarawas County Grand Jury indicted Vento on one
count of kidnapping with a sexual motivation specification, two counts of rape, one count
of attempted murder, one count of felonious assault, and one count of tampering with
evidence.
{¶ 11} The matter proceeded to a five-day jury on February 13, 2017, at the
conclusion of which Vento was found guilty as charged. At a later sentencing hearing,
after merging allied offenses as agreed to by the parties, the trial court sentenced Vento
to an aggregate term of life without the possibility of parole. He was further classified as
a Tier III sex offender.
{¶ 12} Vento then filed this appeal, and the matter is now before this court for
consideration. He raises two assignments of error:
I
{¶ 13}“THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT’S
SUBSTANTIAL RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW BY ADVISING
THE VENIRE OF THE MINIMUM AND MAXIMUM PENALTIES OF EACH OFFENSE IN
THE INDICTMENT PRIOR TO BEGINNING APPELLANT’S TRIAL.”
II
{¶ 14}“APPELLANT WAS DENIED A FAIR TRIAL DUE TO A VIOLATION OF HIS
SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL IN THAT
COUNSEL FAILED TO NOTICE THAT A STATE’S WITNESS HAD NOT BEEN DULY
SWORN IN, FAILED TO MAKE TIMELY OBJECTION THERETO, AND WAIVED
APPELLANT’S RIGHT TO OBJECT.”
I Tuscarawas County, Case No. 2017 AP 03 0006 5
{¶ 15} In his first assignment of error, Vento argues the trial court committed plain
error when during jury selection, when it advised the venire of the possible penalties for
each offense. While we agree that the trial court committed error, we find the outcome
would not have been any different but for the trial court’s comments.
{¶ 16} Vento did not object to the trial court's comments. An error not raised in the
trial court must be plain error for an appellate court to reverse. State v. Long, 53 Ohio
St.2d 91, 372 N.E.2d 804 (1978); Crim.R. 52(B). In order to prevail under a plain error
analysis, Vento bears the burden of demonstrating that the outcome of the trial clearly
would have been different but for the error. Long. Notice of plain error "is to be taken with
the utmost caution, under exceptional circumstances and only to prevent a manifest
miscarriage of justice." Id. at paragraph three of the syllabus.
{¶ 17} Before the attorneys questioned any of the potential jurors, the trial court
discussed with the venire the charges against Vento, the specifications, and the range of
penalties for each offense. T. 40-43. The court then advised the venire at T 44:
Now, ladies and gentlemen, I am telling you what these potential
penalties are not because I'm suggesting that Mr. Vento is guilty of
those crimes, but to give you an appreciation for the significance of
your involvement in this trial and the implication of verdicts of guilty
should the jury impaneled render them. So I don't want you to think
that there's no prison term or that it's discretionary with the judge.
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[Cite as State v. Vento, 2018-Ohio-1799.]
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : Hon. Earle E. Wise, Jr., J. -vs- : : RANDY VENTO : Case No. 2017 AP 03 0006 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Appeals, Case No. 2016 CR 06 0167
JUDGMENT: Affirmed
DATE OF JUDGMENT: May 7, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RYAN STYER GEORGE URBAN Prosecuting Attorney 116 Cleveland Aveue NW MICHAEL ERNEST Suite 808 Assistant Prosecuting Attorney Canton, OH 44702 125 East High Avenue New Philadelphia, OH 44663 Tuscarawas County, Case No. 2017 AP 03 0006 2
Wise, Earle, J.
{¶ 1} Defendant-Appellant Randy Vento appeals the February 24, 2017 judgment
of conviction and sentence of the Court of Common Pleas of Tuscarawas County, Ohio.
Plaintiff-Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On June 2, 2016, Vento was seen by residents and law enforcement riding
an orange bicycle, first in Dover, Ohio where he had contact with a Dover City police
officer, and then in Mineral City, Ohio. In Mineral City, a resident found Vento lying on a
picnic table in the city park. Later that afternoon, X.F, an 11 year-old Mineral City resident
was walking home from a friend's house when he encountered Vento in the park near a
wooded path.
{¶ 3} Vento told X.F he was lost and asked for help. X.F refused. Vento stood up
and started toward X.F and X.F ran. Vento caught X.F and dragged him into the woods.
Vento removed his black hoodie and tied it around X.F's head so he could not see,
removed X.F's clothing, and smashed his cell phone. Vento proceeded to rape and
brutally beat X.F.
{¶ 4} Meanwhile, X.F's mother had become concerned when X.F did not answer
his phone and went looking for him with neighbors and other family members. X.F heard
them calling for him, but each time he tried to call out, Vento shoved a stick in X.F's mouth
to silence him. At some point Vento fled and X.F passed out.
{¶ 5} Upon regaining consciousness, X.F crawled out of the woods. He was
discovered by a neighbor naked, severely beaten and bloody, and with Vento's sweatshirt Tuscarawas County, Case No. 2017 AP 03 0006 3
still tied around his neck. Asked who had done this to him, X.F stated a black man wearing
a black hoodie and green pants had grabbed him off the street. A reverse 911 call was
issued to the Mineral City Area asking residents to notify law enforcement if they saw a
man matching the description given by X.F.
{¶ 6} Within minutes of issuing the reverse 911 call, a resident returned the call
and stated a man matching the description had run out of the woods near the village park,
and ran into her car in his haste. When deputies responded to the location, they found
Vento shirtless and wearing green pants. He was taken into custody.
{¶ 7} Tuscarawas sheriff's deputies searched of the area where X.F was found.
Near the trailhead, an orange bicycle was found along with several personal items
including hospital records bearing Vento's name and date of birth. Further into the woods
they discovered a tree that appeared to have blood on it as well as some clothing which
appeared to be bloody.
{¶ 8} X.F was transported by ambulance to Akron Children's hospital with life-
threatening injuries. He underwent multiple surgeries and tests during a 6-day stay. X.F
advised medical personnel that Vento had raped him and therefore a rape kit was also
collected. X.F's injuries included multiple abrasions and contusions to his face and body,
multiple skull fractures, two fractured fingers, and deep lacerations to his face and mouth.
{¶ 9} Later laboratory testing indicated that blood found on Vento's back
belonged to X.F, and X.F's DNA was present in Vento's underwear. Testing on the hoodie
recovered from around X.F’s neck contained DNA from both X.F and Vento. Additionally,
seminal fluid was present on the anal and perianal swabs from X.F's rape kit. Tuscarawas County, Case No. 2017 AP 03 0006 4
{¶ 10} In August 2016, the Tuscarawas County Grand Jury indicted Vento on one
count of kidnapping with a sexual motivation specification, two counts of rape, one count
of attempted murder, one count of felonious assault, and one count of tampering with
evidence.
{¶ 11} The matter proceeded to a five-day jury on February 13, 2017, at the
conclusion of which Vento was found guilty as charged. At a later sentencing hearing,
after merging allied offenses as agreed to by the parties, the trial court sentenced Vento
to an aggregate term of life without the possibility of parole. He was further classified as
a Tier III sex offender.
{¶ 12} Vento then filed this appeal, and the matter is now before this court for
consideration. He raises two assignments of error:
I
{¶ 13}“THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT’S
SUBSTANTIAL RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW BY ADVISING
THE VENIRE OF THE MINIMUM AND MAXIMUM PENALTIES OF EACH OFFENSE IN
THE INDICTMENT PRIOR TO BEGINNING APPELLANT’S TRIAL.”
II
{¶ 14}“APPELLANT WAS DENIED A FAIR TRIAL DUE TO A VIOLATION OF HIS
SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL IN THAT
COUNSEL FAILED TO NOTICE THAT A STATE’S WITNESS HAD NOT BEEN DULY
SWORN IN, FAILED TO MAKE TIMELY OBJECTION THERETO, AND WAIVED
APPELLANT’S RIGHT TO OBJECT.”
I Tuscarawas County, Case No. 2017 AP 03 0006 5
{¶ 15} In his first assignment of error, Vento argues the trial court committed plain
error when during jury selection, when it advised the venire of the possible penalties for
each offense. While we agree that the trial court committed error, we find the outcome
would not have been any different but for the trial court’s comments.
{¶ 16} Vento did not object to the trial court's comments. An error not raised in the
trial court must be plain error for an appellate court to reverse. State v. Long, 53 Ohio
St.2d 91, 372 N.E.2d 804 (1978); Crim.R. 52(B). In order to prevail under a plain error
analysis, Vento bears the burden of demonstrating that the outcome of the trial clearly
would have been different but for the error. Long. Notice of plain error "is to be taken with
the utmost caution, under exceptional circumstances and only to prevent a manifest
miscarriage of justice." Id. at paragraph three of the syllabus.
{¶ 17} Before the attorneys questioned any of the potential jurors, the trial court
discussed with the venire the charges against Vento, the specifications, and the range of
penalties for each offense. T. 40-43. The court then advised the venire at T 44:
Now, ladies and gentlemen, I am telling you what these potential
penalties are not because I'm suggesting that Mr. Vento is guilty of
those crimes, but to give you an appreciation for the significance of
your involvement in this trial and the implication of verdicts of guilty
should the jury impaneled render them. So I don't want you to think
that there's no prison term or that it's discretionary with the judge.
You need to know what those sentences are so that you can Tuscarawas County, Case No. 2017 AP 03 0006 6
approach this with the level of seriousness and commitment to justice
that I know you will if you're selected.
{¶ 18} The subject of punishment is not a proper jury consideration. R.C 2945.11,
State v. Rigor, 8th Cuyahoga Dist. No. 76201, 2000 WL 1867401, (Dec. 14, 2000) *3.
Nonetheless, we cannot say a manifest injustice occurred here as the evidence in this
matter was exceptionally strong. Vento was seen by residents in the area of the crimes
both before and after his attack on X.F. T. 364-367, 396-397. Forensic evidence, including
the rape kit results, DNA testing on the hoodie Vento tied around X.F's head, Vento's
underwear, and the fact that Vento had X.F's blood on his back inextricably tied Vento to
the crimes. T. 567-568, 610-612, 564-566. Additionally, before the jury retired to
deliberate, the trial court properly instructed the jury pursuant to R.C. 2945.11 that it could
not consider the issue of punishment. T. 715. A jury is presumed to follow the instructions
of the trial court. Pang v. Minch, 53 Ohio St.3d 186, 187, 559 N.E.2d 1313 (1990),
paragraph four of the syllabus.
{¶ 19} We therefore conclude that while it is error to inform a venire of the potential
penalties a defendant may face, in this instance, we find no plain error.
{¶ 20} In his second assignment of error, appellant argues he was denied
effective assistance of counsel. Specifically, appellant argues his counsel failed to object
when the trial court did not administer an oath or affirmation to the child victim before
accepting testimony from the victim. We disagree. Tuscarawas County, Case No. 2017 AP 03 0006 7
{¶ 21} The standard this issue must be measured against is set out in State v.
Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the
syllabus. Appellant must establish the following:
2. Counsel's performance will not be deemed ineffective unless and
until counsel's performance is proved to have fallen below an
objective standard of reasonable representation and, in addition,
prejudice arises from counsel's performance. (State v. Lytle [1976],
48 Ohio St.2d 391, 2 O.O.3d 495, 358 N.E.2d 623; Strickland v.
Washington [1984], 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674,
followed.)
3. To show that a defendant has been prejudiced by counsel's
deficient performance, the defendant must prove that there exists a
reasonable probability that, were it not for counsel's errors, the result
of the trial would have been different.
{¶ 22} Evid.R. 603 provides "* * *[b]efore testifying, every witness shall be
required to declare that the witness will testify truthfully, by oath or affirmation
administered in a form calculated to awaken the witness' conscience and impress the
witness' mind with the duty to do so." The staff notes for Evid.R. 603 indicate the rule
affords flexibility when dealing with a child witness.
{¶ 23} On the day he testified in this matter, X.F was 11 years-old. Before X.F
testified, the trial court inquired of him: Tuscarawas County, Case No. 2017 AP 03 0006 8
***
The Court: And [X.F], I understand you are how old today?
[X.F]: 11 sir.
The Court: You're going to be 12 soon?
[X.F]: Yes, sir.
The Court: All right. And you understand what it means to tell the
truth.
X.F: Yes sir.
The Court: All right. And is it your promise today that you're going to
tell the truth and answer the questions truthfully?
The Court: Thank you.
{¶ 24} There is no particular formula required for administration of an oath. Evid.R.
603, staff notes. We find nothing objectionable in the trial court's administration of the
oath to X.F. Because the oath was not objectionable, we conclude counsel was not
ineffective for failing to object thereto. Tuscarawas County, Case No. 2017 AP 03 0006 9
{¶ 25} The second assignment of error is overruled.
By Wise, Earle, J.
Gwin, J. and
Baldwin, J. concur.
EEW/rw