COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 77462 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION WILLIE TATE : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 26, 2000 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-380,649 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: WILLIAM D. MASON Cuyahoga County Prosecutor RICHARD J. BOMBIK, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: PATRICK S. LAVELLE Attorney at Law Van Sweringen Arcade, Suite 250 123 West Prospect Street Cleveland, Ohio 44115 -2- KENNETH A. ROCCO, J.: Defendant-appellant Willie Tate appeals from his convictions after a jury trial on three counts each of rape and gross sexual imposition. Appellant contends his convictions are not supported by suf- ficient evidence. Appellant also contends the trial court sen- tenced him improperly; he asserts the facts of this case demon- strate his convictions for rape and gross sexual imposition were allied offenses and, further, the trial court failed to adequately state its reasons for imposing consecutive terms of incarceration for each conviction. After an examination of the record, this court determines the evidence supports appellant's convictions. Moreover, no error exists in the trial court's sentencing of appellant. Appellant's convictions and sentences, therefore, are affirmed. Appellant's convictions result from an incident that occurred on Saturday, August 28, 1999. Appellant's wife of seven years, Jessica James Tate, was employed by a small-appliance manufacturing company, which required her attendance beginning at 6:00 a.m. As she prepared to leave that morning, Jessica requested appellant to watch over her twenty-four-year-old daughter. Jessica had four daughters. Her oldest had a house of her own. Jessica's two youngest daughters, both teenagers, had gone there for the weekend. Jessica's twenty-four-year-old daughter -3- however, had been born with Down's syndrome1 and thus remained at home since she required special care. Jessica made certain this daughter was supervised at all times. 2 The victim had attended special classes for the handicapped during her school-age years and was limited in her learning and comprehension. She needed a lot of special help at home. Since appellant had overseen the victim's welfare on previous occasions, Jessica trusted him when he promised he would not leave [the victim] home alone. Thus reassured, Jessica left. Jessica returned home from work at 6:00 p.m. She observed her daughter watching a sports program on TV. Since Jessica was aware it was among the victim's favorite recreational activities, she decided not to disturb her. Later in the evening, Jessica was surprised when she noticed appellant placing his underpants in the washing machine; there appeared to be blood on them. Appellant explained he was bleeding from his penis. Knowing appellant's normal concern for his health, she thought it odd that he did not seem worried about the problem. The next morning, Jessica, appellant and her daughter attended Sunday service at the church at which they were members. Following the approximately three-hour service, they returned home in order 1Stedman's Medical Dictionary (26th Ed., 1995) indicates this condition results from chromosomal abnormalities. It is charac- terized by, inter alia, mental retardation in 99% of cases and retarded growth. 2Quotes indicate testimony given by a witness at appellant's trial. -4- for the victim to nap. Then the three of them proceeded to a restaurant for dinner. Jessica became disturbed during the meal by appellant's manner of staring at her daughter's body in an uncomfortable way and smirking when Jessica questioned him about it. Jessica remem- bered having the same feeling the previous evening since appellant had displayed an unusual fascination with the victim. After the three of them returned home, Jessica stated she needed to go to the store and wanted her daughter to accompany her. The two were on their way in Jessica's vehicle when Jessica asked the victim how her Saturday with appellant had been. Although the victim initially was reluctant to recount the episode, she eventually informed Jessica, in most part by demon- stration, that appellant had come into her room against her wishes, felt her breasts, performed oral sex upon her, placed his penis on her back and then inserted it into her anus, and finally raped her vaginally. The victim convinced Jessica of the truthfulness of the account because the way that she was describing [appellant] was the exact way that he did things with [Jessica] and the sounds that he made. [The victim] even *** made the sounds. She had his exact mannerism. Jessica returned home to confront appellant. Appellant became angry, threatened to beat [the victim's] you know what for lying, and denied he had committed the acts. Jessica stated she believed her daughter. When she informed appellant she was driving the victim to the hospital, appellant decided to accompany them. -5- The tests performed at the hospital were inconclusive; the victim told Jessica appellant had bathed her after the incident. Nevertheless,as a result of the visit, a Cleveland police officer reported to the hospital. After speaking with Jessica and the victim, the officer placed appellant under arrest. Appellant subsequently was indicted on seven counts as follows: three counts of rape, R.C. 2907.02(A)(1)(c); three counts of gross sexual imposition, R.C. 2907.05; and one count of kidnapping, R.C. 2905.01.3 The trial court conducted a voir dire examination of the victim prior to the impanelment of the jury and determined the victim was competent to testify as a witness. Thereafter, the state presented her testimony, Jessica's testimony, and the testimony of two of the police officers who investigated the case. Appellant testified in his own behalf. Although appellant admitted he had confessed to committing the crimes to Jessica and two elders of their church, appellant asserted he had done so only as a ploy to obtain his belongings from the family home. The jury ultimately returned verdicts of guilty on the rape and gross sexual imposition counts against appellant. The jury found appellant not guilty of the kidnapping charge. Following a presentence investigation and report, the trial court sentenced appellant4 to consecutive terms of incarceration of ten years on 3The first six counts contained specifications that the state dismissed after the jury rendered its verdict. 4As a part of the sentencing hearing, the trial court (continued...) -6- each of the rape counts and eighteen months on each of the gross sexual imposition counts. Appellant has filed a timely appeal of his convictions. The first of his four assignments of error states: THE DECISION OF THE JURY IS AGAINST THE MANI- FEST WEIGHT OF THE EVIDENCE BECAUSE THE STATE OF OHIO FAILED TO OFFER EVIDENCE AS TO EACH ELEMENT OF THE OFFENSE UNDER OHIO REVISED CODE SECTION 2907.02(A)(2)(c). Although phrased in terms of manifest weight, appellant actually argues the state failed to present sufficient evidence as to an essential element of the offense of rape as charged in the indictment. Appellant's argument is unpersuasive. When reviewing a claim as to sufficiency of evidence, the relevant inquiry is whether any rational factfinder viewing the evidence in a light most favorable to the state could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573; State v. Jenks (1992), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus. The ver- dict will not be disturbed unless the appel- late court finds that reasonable minds could not reach the conclusion reached by the trier- of-fact. Jenks, 61 Ohio St.3d at 273, 574 N.E.2d at 503. See, also, State v. Bridgeman (1978), 55 Ohio St.3d 261, 9 O.O.3d 401, 381 N.E.2d 184, syllabus. State v. Dennis (1997), 79 Ohio St.3d 421 at 430-431. The first three counts of the indictment against appellant charged him with the crime of rape in pertinent part as follows: 4(...continued) adjudicated appellant pursuant to R.C. 2950.09(B) and determined him to be a sexual predator. Appellant does not challenge this order. -7- *** Defendant() *** unlawfully engaged in sexual conduct with [the victim], not his spouse, and the ability of [the victim] to resist or consent was substantially impaired because of a mental condition and the offender knew or had reasonable cause to believe that the [victim]'s ability to resist or consent was substantially impaired because of a mental condition; ***. Appellant asserts the state presented insufficient evidence that the victim's ability *** to resist or consent was substan- tially impaired because of a mental condition. The Ohio Supreme Court has stated the element of substantial impairment due to a mental condition is established by demonstrat- ing a present reduction, diminution or decrease in the victim's ability, either to appraise the nature of [her] conduct or to control [her] conduct. State v. Zeh (1987), 31 Ohio St.3d 99 at 103-104. The state, however, need not establish this element by expert medical testimony; expert medical testimony is necessary only when the defense requests the witness submit to a court- appointed, independent examination with the results being made available to both sides. Id. at 105. See, also, State v. Kebe (Nov. 12, 1998), Cuyahoga App. No. 73398, unreported. Thus the element may be proved by the testimony of persons who have had some interaction with the victim. In the matter of Sechler (Aug. 29, 1997), Trumbull App. No. 96-T-5575, unreported. It may also be proven by permitting the trier of fact to obtain its own assessment of the victim's ability to either appraise or con- trol her conduct. State v. Ferguson (May 25, 2000), Franklin App. -8- No. 99AP-819, unreported; cf., State v. Joseph (July 24, 1985), Hamilton App. No. C-840751, unreported. In this case, the state utilized both of the foregoing methods. The victim's mother testified the victim required a lot of special help, was limited in her comprehension and cognitive abilities, and couldn't just create things on her own. She further testified the victim saw a small picture when contemplat- ing deep *** situations and required constant supervision. Her testimony also supported a conclusion the victim customarily followed the directions of her care givers without question. The victim's testimony demonstrated she had difficulty forming logical sentences. She gave simple descriptions and answers. Moreover, on cross-examination, the victim's answers elicited by defense counsel demonstrated her compliant nature. Viewing the evidence presented in a light most favorable to the state, therefore, a rational jury could have found the element of substantial impairment beyond a reasonable doubt. In the matter of Sechler, supra; State v. Ferguson, supra. Accordingly, appellant's first assignment of error is overruled. Appellant's second and third assignments of error are addressed together as follows: II. THE TRIAL COURT ERRED BY SENTENCING DEFENDANT TO THREE CONSECUTIVE EIGHTEEN MONTH TERMS OF INCARCERATION FOR CONVIC- TIONS BASED ON GROSS SEXUAL IMPOSITION. III. THE TRIAL COURT ERRED BY SENTENCING DEFENDANT TO AN EIGHTEEN MONTH TERM OF -9- INCARCERATION BASED ON A CONVICTION FOR GROSS SEXUAL IMPOSITION. Appellant essentially argues the trial court improperly imposed separate sentences for each of his convictions for gross sexual imposition and for rape. Appellant contends these crimes were allied offenses of similar import pursuant to R.C. 2941.25(A). This court does not agree. Intimate sexual contacts with a victim that constitute the offense of gross sexual imposition may be treated as separate offenses for purposes of R.C. 2941.25(B) in at least two instances: (1) where the evidence demonstrates either the passage of time or intervening conduct by the defendant between each incident; and (2) where the evidence demonstrates the defendant's touching of two different areas of the victim's body occurred in an interrupted sequence. State v. Kebe, supra, citing State v. Delvalles (Apr. 25, 1991), Cuyahoga App. No. 58659, unreported; State v. Burgos (Dec. 13, 1984), Cuyahoga App. No. 48249, unreported. In this case, the victim indicated by miming that appellant's first action upon entering her room was to squeeze her breasts. She then testified that appellant licked her shoulder. Further- more, during Jessica's direct testimony, Jessica stated she noticed after the incident that the victim's puberty hairs had been shaved; the victim demonstrated to her how appellant had accom- plished this. The victim also testified appellant eventually placed his penis on her back. Clearly, therefore, appellant interrupted the sequence of contact at least twice: once to undress the victim, and once to disrobe himself. -10- Based upon the evidence, the trial court did not err in imposing a separate sentence for each of appellant's convictions for gross sexual imposition. See, e.g., State v. Jones (1997), 78 Ohio St.3d 12. Similarly, although appellant contends the separate convic- tions and sentences for rape and for gross sexual imposition were improper, a review of the Ohio Supreme Court's decision in State v. Rance (1999), 87 Ohio St.3d 632 negates his contention. In Rance, at 638-639, the supreme court stated: [U]nder an R.C. 2941.25(A) analysis the statu- torily defined elements of offenses that are claimed to be of similar import are compared in the abstract. Newark v. Vazirani [(1990), 48 Ohio St.3d 81], and language in other opinions to the contrary, are overruled. Courts should assess, by aligning the elements of each crime in the abstract, whether the statutory elements of the crimes correspond to such a degree that the commission of one crime will result in the commission of the other. [State v.] Jones [(1997)], 78 Ohio St.3d [12] at 14, 676 N.E.2d at 81. And if the elements do so correspond, the defendant may not be convicted of both unless the court finds that the defendant committed the crimes separately or with separate animus. R.C. 241.25(B); Jones, 78 Ohio St.3d at 14, 676 N.E.2d at 81 (a defendant may be convicted of allied offenses of similar import if the defendant's conduct reveals that the crimes were committed separately or with separate animus). (Emphasis in original; underscoring added.) An abstract alignment of the elements of the crimes of rape and gross sexual imposition demonstrates the elements do not correspond since the former requires proof of sexual conduct and the latter requires proof of sexual contact. R.C. 2907.01(A) and -11- (B). Rather, gross sexual imposition is a lesser-included offense of rape. State v. Johnson (1988), 36 Ohio St.3d 224. A review of the evidence in this case, moreover, demonstrates appellant committed these separate acts over a period of time while his wife was at work and interrupted their progression when he undressed the victim, shaved her pubic area, and disrobed. State v. Jones (1997), 78 Ohio St.3d 12. Under these circumstances, the trial court properly sentenced appellant for all six offenses. Appellant's second and third assignments of error therefore, are overruled. Appellant's fourth assignment of error states: THE TRIAL COURT ERRED WHEN IT SENTENCED THE APPELLANT TO CONSECUTIVE TERMS OF INCARCERA- TION. Appellant asserts the trial court failed to make the requisite findings prior to imposing consecutive sentences upon him. The record belies appellant's assertion. The trial court stated in pertinent part the following at appellant's sentencing hearing: *** [The victim] very much trusted you, and you violated that trust. In several sick and demented ways you violated her. You anally raped her, orally raped her, and vaginally raped her. She could barely understand what had occurred. It was difficult for the jury, I'm certain, and for everyone to even sit through the testimony. As [the prosecutor] stated, this was emotionally draining for the victim and her mother, everyone involved. * * * *** It is *** this Court's finding pursuant to Revised Code 2929.14(E)(4) that consecutive terms are necessary to protect the public and consecutive terms are necessary to punish this -12- offender, and also that the terms are not disproportionate to the seriousness of the offender's conduct and the danger this of- fender poses to the public and also the harm in this case caused was so great that no single prison term adequately reflects the seriousness of the offender's conduct. Now, therefore, I'm going to be running all counts consecutive after having made that finding. The trial court thus fully complied with the statutory requirements since it both gave its reasons for imposing consecu- tive sentences and stated each of the necessary findings. State v. Edmonson (1999), 86 Ohio St.3d 324, 326-327; State v. Albert (1997), 124 Ohio App.3d 255; cf., State v. Rose (Aug. 24, 2000) Cuyahoga App. No. 77455, unreported. Since the trial court followed the directives of Edmonson and tracked the clear statutory language of R.C. 2929.14(E)(4) when pronouncing sentence, appellant's fourth assignment of error is overruled. Appellant's convictions and sentences are affirmed. -13- It is ordered that appellee recover of appellant its 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 Cuyahoga County Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal 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. ANN DYKE, A.J. and LEO M. SPELLACY, J. CONCUR JUDGE KENNETH A. ROCCO N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc. App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). .