author: TUCKER, J.

text:
    STATE of Ohio, Plaintiff-Appellee v. David G. MATTOX, Defendant-Appellant
    No. 27518
    Court of Appeals of Ohio, Second District, Montgomery County.
    Rendered on March 16, 2018
    MATHIAS H. HECK, JR., by ALICE B. PETERS, Atty. Reg. No. 0093945, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422, Attorney for Plaintiff-Appellee
    THOMAS M. KOLLIN, Atty. Reg. No. 0066964, 3725 Pentagon Boulevard, Suite 270, Beavercreek, Ohio 45431, Attorney for Defendant-Appellant
   TUCKER, J.

{¶ 1} Defendant-appellant, David G. Mattox, appeals from his convictions on a series of charges under R.C. 2905.01(A)(4), 2907.02(A)(1)(b), 2907.05(A)(4) and 2907.323(A)(1). Mattox argues that his convictions should be vacated because the trial court erred by refusing to suppress statements he made during interviews at the Miami Township Police Department; by overruling his motion for acquittal under Crim.R. 29 ; and by disregarding the manifest weight of the evidence in finding him guilty. Having reviewed the briefs and the record, we find that the trial court correctly deemed Mattox's statements to be admissible; that the court properly overruled his motion for acquittal; and that the convictions were justified by the evidence. Therefore, we affirm.

I. Facts and Procedural History

{¶ 2} In 2013, a detective with the Miami Township Police Department asked Mattox to be interviewed in response to an allegation that he had sexually abused a minor. Mattox complied with the request, and on September 18, 2013, he participated in a roughly 30 to 40 minute interview with the detective at the department's offices. Tr. of Proceedings 9:3-9:18 and 23:2-23:5. The investigation came to a close without the filing of any charges because of a lack of evidence. Id. at 12:11-12:21.

{¶ 3} Prompted by new allegations, the department reopened the investigation in 2014, and the detective requested that Mattox return for another interview. Id. Mattox arrived at the department's offices for his second interview on December 8, 2014. Id. The reopened investigation resulted in charges, and on July 16, 2015, officers arrested Mattox. Id. at 15:10-15:21. Later that day, after Mattox executed a written waiver of his Miranda rights, the detective interviewed him for the third time. Id. at 16:22-18:20.

{¶ 4} A Montgomery County grand jury issued an indictment against Mattox on July 24, 2015 ("Indictment A"), charging him with seven counts of gross sexual imposition against a person less than 13 years of age, in violation of R.C. 2907.05(A)(4) ; two counts of gross sexual imposition through the use of force or the threat of force, in violation of R.C. 2907.05(A)(1) ; two counts of kidnapping, in violation of R.C. 2905.01(A)(4) ; 13 counts of rape of a person less than 13 years of age, in violation of R.C. 2907.02(A)(1)(b) ; and one count of rape through the use of force or the threat of force, in violation of R.C. 2907.02(A)(2). On July 31, 2015, the grand jury issued a second indictment ("Indictment B"), charging Mattox with 10 counts of illegal use of a minor in nudity-oriented materials or performances, in violation of R.C. 2907.323(A)(1). Mattox pleaded not guilty to both of the indictments.

{¶ 5} On August 19, 2015, Mattox moved to suppress the statements he made during his three interviews at the Miami Township Police Department. In his motion, Mattox argued that the statements should be suppressed because he did not waive his Miranda rights; because officers "questioned [him] multiple times without advising him" of his rights; and because he "did not fully understand all of the rights that were allegedly read to him." Def.'s Mot. to Suppress 3, Aug. 19, 2015. Following a hearing on October 2, 2015, the trial court overruled the motion. Decision & Entry Overruling Def.'s Mot. to Suppress 2-3, Oct. 14, 2015.

{¶ 6} Mattox executed a jury waiver on July 11, 2016, and his case proceeded to a bench trial beginning on January 31, 2017. At the conclusion of the trial on February 8, 2017, the court found Mattox guilty on seven counts of rape of a person less than 13 years of age under R.C. 2907.02(A)(1)(b) (Counts 1-4, 7-8 and 22 of Indictment A); two counts of kidnapping under R.C. 2905.01(A)(4) (Counts 9-10 of Indictment A); two counts of gross sexual imposition against a person less than 13 years of age under R.C. 2907.05(A)(4) (Counts 11-12 of Indictment A); and nine counts of illegal use of a minor in nudity-oriented materials or performances under R.C. 2907.323(A)(1) (Counts 2-10 of Indictment B). Tr. of Proceedings 913:3-918:17. The court filed a termination entry on March 27, 2017, and Mattox filed his notice of appeal to this court on March 30, 2017.

II. Analysis

{¶ 7} For his first assignment of error, Mattox contends that:

THE TRIAL COURT ERRED IN OVERRULING APPELLANT's MOTION TO SUPPRESS.

{¶ 8} Mattox argues that the trial court should have suppressed the statements he made during his interviews at the Miami Township Police Department in 2013 and 2014 because the detective who conducted the interviews failed to advise him of his Miranda rights. Appellant's Br. 5-7. With respect to his 2015 interview, Mattox concedes that he executed a written Miranda waiver but argues that the waiver was invalid because the detective failed to explain all of the charges against him and ignored what might have been a request to speak with an attorney. Id. at 7.

{¶ 9} Appellate "review of a motion to suppress presents a mixed question of law and fact." State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. As the trier of fact, a trial court "is in the best position to weigh * * * evidence * * * and evaluate [the credibility of] witness[es]," so an "appellate court must accept the trial court's findings of fact if they are supported by competent, credible evidence." Id. , citing State v. Fanning , 1 Ohio St.3d 19, 437 N.E.2d 583 (1982) ; State v. Graves , 12th Dist. Clermont No. CA2015-03-022, 2015-Ohio-3936, 2015 WL 5671910, ¶ 9, citing State v. Cruz , 12th Dist. Preble No. CA2013-10-008, 2014-Ohio-4280, 2014 WL 4802860, ¶ 12. Accepting the trial court's findings of fact as true, "the appellate court must then independently determine, without deference to the [trial court's legal] conclusion[s]," whether the "facts satisfy the applicable * * * standard." Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8, citing Fanning , 1 Ohio St.3d 19, 437 N.E.2d 583, and State v. McNamara , 124 Ohio App.3d 706, 707 N.E.2d 539 (4th Dist.1997).

{¶ 10} Regarding Mattox's interviews in 2013 and 2014, the trial court determined that Miranda warnings were not required because Mattox was not in police custody in either instance. Decision & Entry Overruling Def.'s Mot. to Suppress 2-3. The "procedural safeguards prescribed by Miranda apply only when [a] person [is] subjected to [a] 'custodial interrogation.' " State v. Thomas , 2d Dist. Montgomery No. 20643, 2005-Ohio-3064, 2005 WL 1414441, ¶ 27, citing Miranda v. Arizona , 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In this context, an interrogation would be "custodial" if the person were formally arrested or if the person's freedom of movement were restrained to the degree normally associated with a formal arrest. Id. , citing California v. Beheler , 463 U.S. 1121, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983).

{¶ 11} For purposes of determining whether an interview is custodial, the "subjective views" of the interviewer and the person being interviewed "are immaterial"; instead, the determination should focus on the essentially objective question of whether "a reasonable person in the [same] position" would feel "at liberty to terminate the interview and leave." State v. Ferguson , 2017-Ohio-7930, 98 N.E.3d 987, ¶ 70 (2d Dist.), citing Stansbury v. California , 511 U.S. 318, 323, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994), and State v. Hatten , 186 Ohio App.3d 286, 2010-Ohio-499, 927 N.E.2d 632, ¶ 50 (2d Dist.) ; State v. Magnone , 2016-Ohio-7100, 72 N.E.3d 212, ¶ 22 (2d Dist.), citing State v. Hoffner , 102 Ohio St.3d 358, 2004-Ohio-3430, 811 N.E.2d 48, ¶ 27, and State v. Earnest , 2d Dist. Montgomery No. 26646, 2015-Ohio-3913, 2015 WL 5642917, ¶ 22 ; State v. Chenoweth , 2d Dist. Miami No. 2010 CA 14, 2011-Ohio-1276, 2011 WL 944437, ¶ 8, citing Beheler , 463 U.S. at 1125, 103 S.Ct. 3517. Among others, the factors a court should consider in applying this standard are: the location of the interview; the duration of the interview; whether the interviewee is physically restrained; whether the interviewee is threatened or tricked; and whether the interviewee is released at the end of the interview. See Howes v. Fields , 565 U.S. 499, 509, 132 S.Ct. 1181, 182 L.Ed.2d 17 (2012) ; see also , e.g. , Magnone , 2016-Ohio-7100, 72 N.E.3d 212, ¶ 23.

{¶ 12} Here, the trial court determined that a reasonable person in Mattox's position would have felt free to leave the interviews in 2013 and 2014. See Decision & Entry Overruling Def.'s Mot. to Suppress 2-3. Mattox maintains, to the contrary, that he was effectively in custody during both of the interviews, given that: (1) he "came to the police station at the request of a detective," rather than "show[ing] up * * * on his own accord"; (2) when he arrived, the detective escorted him from the lobby to the interview-room; (3) the detective at least partially obstructed his path out of the room; and (4) the detective informed him that he was a suspect. Appellant's Br. 6-7. As well, Mattox notes that the detective kept the door to the room closed during his interview in 2013. Id.

{¶ 13} We concur with the trial court's determination. Notwithstanding that the detective informed Mattox that he was a suspect and asked him to come to the Miami Township Police Department for the 2013 and 2014 interviews, Mattox "voluntarily appeared" there in response to the detective's request, and he "was permitted to leave on both occasions." Decision & Entry Overruling Def.'s Mot. to Suppress 2; Tr. of Proceedings 9:3-13:25 and 15:7-15:9. Although the detective escorted Mattox from the lobby to the interview-room, a reasonable person would not necessarily expect to have unlimited freedom of movement in a secure facility such as a police station, and before each of the interviews, the detective informed Mattox that he had no obligation to answer any questions, that he was not under arrest, and that he was free to leave. See id. On neither occasion, for that matter, was Mattox handcuffed, "threatened, physically intimidated, overpowered, tricked, or coerced." Decision & Entry Overruling Def.'s Mot. to Suppress 2; Tr. of Proceedings 9:3-13:25 and 20:13-26:19. We note, as well, that the interview in 2013 lasted for 30 to 40 minutes, which would not seem to be unreasonable. Tr. of Proceedings 23:2-23:7; compare with Oregon v. Mathiason , 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977).

{¶ 14} Certain aspects of the interviews, however, could be characterized as daunting or unnerving, particularly because Mattox knew that he had been accused of serious crimes. See Tr. of Proceedings 23:2-23:15. For instance, Mattox would not have been able to exit the interview-room unless the detective moved out of his way, and during the 2013 interview, the detective kept the door closed. Id. at 21:16-23:1 and 24:1-26:19. Yet, "[a]ny interview of [a person] suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the [person] to be charged with a crime." Mathiason , 429 U.S. at 495, 97 S.Ct. 711. In other words, because a person participating in an interview with a police officer will-almost unavoidably-experience some degree of subjective discomfiture, an otherwise non-custodial interview should not be deemed custodial solely because the situation itself causes the person to feel anxious. See id. ; State v. Ferguson , 2017-Ohio-7930, 98 N.E.3d 987, ¶ 70 (2d Dist.).

{¶ 15} Mattox might have felt nervous within the confines of the interview room in 2013 and 2014. Even so, he had not been arrested, was duly advised that he did not have to participate in the interviews, was not handcuffed or physically restrained, and was allowed to leave freely on both occasions. Accordingly, we find that in circumstances equivalent to Mattox's interviews in 2013 and 2014, a reasonable person would have felt free "to terminate the interview[s] and leave." Ferguson , 2017-Ohio-7930, 98 N.E.3d 987, ¶ 70.

{¶ 16} Regarding his post-arrest interview in 2015, Mattox acknowledges that he signed a written Miranda waiver. Appellant's Br. 2-3. He argues nevertheless that he did not validly waive his Miranda rights because the detective did not explain all of the charges against him and "continued to question [him] after he said something about an attorney." Id. at 8.

{¶ 17} A "suspect may effectively waive [his Miranda ] rights * * * only 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 v. Arizona , 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Thus, a court "may properly" recognize the validity of a person's waiver of Miranda rights only if it finds that: (1) "the relinquishment of the right[s] [was] voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception"; and (2) the person had "a full awareness of * * * the nature of the right[s] being abandoned and the consequences of the decision to abandon [them]." Moran v. Burbine , 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986) ; see also Dailey , 53 Ohio St.3d at 91, 559 N.E.2d 459. If the court "determine[s] that a [person]'s decision not to rely on his rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the State's intention to use his statements to secure a conviction, [then] the analysis is complete[,] and the waiver is valid as a matter of law." Id. at 422-423, 106 S.Ct. 1135.

{¶ 18} Mattox's waiver fulfills the requirements set forth by the U.S. Supreme Court in its Moran decision. With respect to Mattox's complaint that the detective did not list or explain every charge against him, a Miranda waiver is "not vitiated as a result of the failure of [a] police officer * * * to explain the nature of the charges against [a] person being interrogated[ ]." State v. Daniels , 2d Dist. Montgomery No. 18650, 2001 WL 630558, *1 (June 8, 2001), citing Colorado v. Spring , 479 U.S. 564, 107 S.Ct. 851, 93 L.Ed.2d 954 (1987). On the other hand, the fact that the detective would continue to question Mattox after he "said something about an attorney" raises a concern, but merely speaking the word "attorney" is not equivalent to a request for representation. See Appellant's Br. 13; Tr. of Proceedings 43:24-44:7. Furthermore, Mattox conspicuously makes no claim that he actually attempted to invoke his right counsel, and when asked whether Mattox had "use[d] the word 'lawyer' or 'attorney' " during the interview, the detective testified that Mattox "didn't request one," though he might have "said something about an attorney." (Emphasis added.) Tr. of Proceedings 43:24-44:7. The trial court credited the detective's testimony, and we find no basis in the record to contradict this assessment.

{¶ 19} We hold that Mattox's interviews in 2013 and 2014 were non-custodial and that he validly waived his Miranda rights in advance of his post-arrest interview in 2015. Therefore, the trial court properly denied his motion to suppress. Mattox's first assignment of error is overruled.

{¶ 20} Mattox's second and third assignments of error implicate related standards of review, so we address them together. For his second assignment of error, Mattox contends that:

THE TRIAL COURT ERRED IN OVERRULING APPELLANT's MOTIONS FOR ACQUITTAL BECAUSE THERE WAS INSUFFICIENT EVIDENCE FOR A REASONABLE FACT FINDER TO FIND THAT THE APPELLANT WAS GUILTY BEYOND A REASONABLE DOUBT.

{¶ 21} And for his third assignment of error, Mattox contends that:

THE TRIAL COURT ERRED IN FINDING THE APPELLANT GUILTY BECAUSE THE CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶ 22} Mattox argues that the trial court should have sustained his motion for acquittal under Crim.R. 29(A) because the State did not produce sufficient evidence to support a conviction on any of the charges against him. Appellant's Br. 9. In the alternative, he argues that his "convictions were against the manifest weight of the evidence," pointing out a series of purported conflicts in the testimony. Id. at 9-10.

{¶ 23} An appellate court reviews a trial court's ruling on a motion under Crim.R. 29 by the same standard applicable to a claim based on the sufficiency of the evidence. State v. Scott , 2018-Ohio-198, 104 N.E.3d 143, ¶ 37 (2d Dist.), citing State v. Bailey , 2d Dist. Montgomery No. 27177, 2017-Ohio-2679, 2017 WL 1788690, ¶ 17. Sufficiency of the evidence "is the legal standard applied to determine whether * * * the evidence [in a given case] is [adequate] as a matter of law to support the jury['s] verdict." State v. Smith , 80 Ohio St.3d 89, 113, 684 N.E.2d 668 (1997), citing State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). On review of a challenge to a conviction based upon the sufficiency of the evidence, 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. , quoting State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

{¶ 24} In a challenge based on the weight of the evidence, an appellate court must review the record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether in resolving conflicts in the evidence, the jury clearly lost its way and created a manifest miscarriage of justice warranting reversal and a new trial. Thompkins , 78 Ohio St.3d at 387, 678 N.E.2d 541, citing State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983) ; State v. Hill , 2d Dist. Montgomery No. 25172, 2013-Ohio-717, 2013 WL 784643, ¶ 8. A trial court's "judgment should be reversed as being against the manifest weight of the evidence 'only in the exceptional case in which the evidence weighs heavily against the conviction.' " Hill , 2013-Ohio-717, 2013 WL 784643, ¶ 8, quoting Martin , 20 Ohio App.3d at 175, 485 N.E.2d 717. Because "a finding that a conviction is supported by the manifest weight of the evidence necessarily includes a finding of sufficiency," a determination that a conviction is supported by the manifest weight of the evidence is also dispositive of the issue of sufficiency. (Citation omitted.) State v. McCrary , 10th Dist. Franklin No. 10AP-881, 2011-Ohio-3161, 2011 WL 2536451, ¶ 11 ; State v. Miller , 2d Dist. Montgomery No. 25504, 2013-Ohio-5621, 2013 WL 6795604, ¶ 48, citing McCrary , 2011-Ohio-3161, 2011 WL 2536451, ¶ 11.

{¶ 25} Regarding Mattox's argument that his convictions were against the manifest weight of the evidence, he presents a list of five examples to illustrate that "the testimony on which the convictions are based [is] conflicting[ ] [and] unclear." Appellant's Br. 10. He claims, first, that one of the victims, M.M., gave contradictory testimony about creating a Facebook profile-specifically, that M.M. testified that she created the profile "when she was seven years old, before [the occurrence of any sexual abuse], then almost immediately contradict[ed] herself [by] [testifying] that she made the [profile] when [the sexual abuse] began." Id. Mattox, however, is mistaken. M.M.'s testimony is consistent in this respect. See Tr. of Proceedings 200:24-202:16 and 255:5-256:24.

{¶ 26} Second, Mattox observes that M.M. testified inconsistently about an incident involving both of them and B.T., another victim. On direct examination, M.M. testified that in the moments leading up to the incident, she did not know what was about to happen, but on cross-examination, she testified that she did know. Id. at 212:1-213:2 and 299:1-300:5.

{¶ 27} Although this testimony is inconsistent, the inconsistency relates only to a single incident and only to a fact of marginal significance. Taken as a whole, M.M.'s testimony is internally consistent, and B.T.'s testimony corroborates M.M.'s description of the sexual activity that occurred during the foregoing incident. Id. at 212:1-213:2, 299:1-306:4, 461:16-462:25, 467:9-469:12.

{¶ 28} Third, Mattox suggests that M.M. contradicted herself when she testified about one occasion when she ran away from home. See id. at 342:24-343:11. According to Mattox, the testimony is self-contradictory because M.M. "says that she ran away because of [him] and [because] she didn't feel safe," yet "later she admits that she felt safe with her parents." Appellant's Br. 10. Mattox mischaracterizes the testimony. M.M. actually testified that she felt safe from him with her parents but ran away because she could not bring herself to disclose to them, and she explained that she subsequently disclosed during a hospital visit because she felt safe disclosing in that environment. See Tr. of Proceedings 344:7-344:23.

{¶ 29} Fourth, Mattox notes that M.M. admitted at one point during her testimony that she had not responded accurately in answer to a previous question. Specifically, when asked on direct examination whether she had ever been touched inappropriately before the earliest incident with Mattox, M.M. answered in the negative, though on cross-examination, she acknowledged a prior incident involving another person. Id. at 360:17-361:14 and 369:23-371:18.

{¶ 30} Considering the circumstances, M.M.'s reluctance to acknowledge the prior incident is not necessarily a reflection on her reliability as a witness, and her willingness to admit that she answered a question inaccurately tends to bolster, rather than undermine, the overall credibility of her testimony. Furthermore, given that the prior incident involved a person other than Mattox, it had no bearing on the accuracy of M.M.'s allegations against Mattox himself. M.M., for that matter, might have misinterpreted the question. See id. at 370:23-371:18.

{¶ 31} Fifth, Mattox maintains that the testimony of M.M. and the testimony of another victim, A.M., should be deemed unreliable on the basis of "inherent differences" in their respective accounts of an incident involving both of them and Mattox himself. Appellant's Br. 10. Mattox supports this assertion with citations to A.M.'s testimony and to his defense counsel's closing statement, but not to M.M.'s testimony, which appears to explain his inaccurate characterization of M.M.'s account of the incident. See id.

{¶ 32} In his brief, Mattox claims "M.M. testified that A.M. was in the living room [of Mattox's residence] listening to music" immediately before the incident, which occurred in Mattox's bedroom, whereas "A.M. testified that he had just gotten out of the shower." See id. M.M., however, testified that after the incident-not in the moments beforehand-she "just sat [on the] couch" in Mattox's living room "listening to music"; she did not refer to A.M. "listening to music" at any point in her testimony. See Tr. of Proceedings 217:12-217:22, 319:6-322:6 and 335:8-336:12.

{¶ 33} Mattox is nevertheless correct that A.M. and M.M. gave slightly different accounts. Describing the time leading up to the incident, A.M. testified that after stepping out of the shower, he went into Mattox's bedroom because "that's where [he] usually [got] dressed," and M.M. entered the room while he "was putting on [his] clothes." Id. at 394:18-395:12. M.M., on the other hand, testified that Mattox "had asked [her] and [A.M.] to go" into his bedroom. Id. at 217:12-217:22, 321:16-321:21. Yet, apart from this comparatively trivial difference, A.M.'s testimony closely agrees with that of M.M. in nearly every other respect. Compare id. at 319:21-329:19, with id. at 395:11-397:6 and 404:5-409:11.

{¶ 34} Viewed as a whole, the record includes ample evidence that Mattox "engage[d] in sexual conduct" with B.T. and M.M. in violation of R.C. 2907.02(A)(1)(b) ; that Mattox "restrained the liberty" of A.M. and M.M. for the purpose of forcing them to "engage in sexual activity" in violation of R.C. 2905.01(A)(4) ; that Mattox had "sexual contact" with B.T. in violation of R.C. 2907.05(A)(4) ; and that Mattox asked M.M. to take naked photographs of herself and B.T. in violation of R.C. 2907.323(A)(1). See , e.g. , Tr. of Proceedings 212:1-213:2, 217:1-222:5, 231:8-233:25, 298:9-306:4, 315:2-317:18, 405:11-415:25, 461:16-462:25, 467:9-469:12, 470:18-478:8, 485:14-488:13, 545:25-554:6, 584:7-591:20, 726:23-729:1 and 732:9-735:24. Having reviewed the testimony of the three victims and the other evidence presented at Mattox's trial, we cannot conclude that the trial court clearly lost its way when it found Mattox guilty on Counts 1-4, 7-12 and 22 of Indictment A, and Counts 2-10 of Indictment B.

{¶ 35} Our finding that the guilty verdicts were thus not against the manifest weight of the evidence obviates the need for a separate analysis of the sufficiency of the evidence for purposes of Crim.R. 29(A). (Citation omitted.) State v. McCrary , 10th Dist. Franklin No. 10AP-881, 2011-Ohio-3161, 2011 WL 2536451, ¶ 11 ; State v. Miller , 2d Dist. Montgomery No. 25504, 2013-Ohio-5621, 2013 WL 6795604, ¶ 48, citing McCrary , 2011-Ohio-3161, 2011 WL 2536451, ¶ 11. Mattox's second and third assignments of error are overruled.

III. Conclusion

{¶ 36} The trial court properly overruled Mattox's motion to suppress because his interviews at the Miami Township Police Department in 2013 and 2014 were non-custodial, and he validly waived his Miranda rights in advance of his interview in 2015. Additionally, the trial court properly overruled Mattox's motion for acquittal, and the evidence supported the court's verdicts of guilty on Counts 1-4, 7-12 and 22 of Indictment A, and Counts 2-10 of Indictment B. Therefore, Mattox's assignments of error are overruled, and the judgment of the trial court is affirmed.

WELBAUM, P.J. and DONOVAN, J., concur.

      The State filed an amended version of Indictment A on August 12, 2015.

      It found Mattox not guilty on the remaining counts of Indictment A, other than Count 25. The State dismissed Count 25 of Indictment A and Count 1 of Indictment B. See Tr. of Proceedings 84:3-84:12 and 921:2-921:17.

      The trial court did not expressly find as a matter of fact that the detective failed to deliver Miranda warnings before commencing the interviews in 2013 and 2014, and the State never expressly admits as much in its brief. See generally Decision & Entry Overruling Def.'s Mot. to Suppress, Oct. 14, 2015; Appellee's Br. 16-20.

      The record is silent on the duration of the 2014 interview. In any event, Mattox offers no argument that the duration of any of his three interviews created, or contributed to, a coercive atmosphere. Appellant's Br. 5-7.

      In his motion to suppress, Mattox did not claim that he requested counsel, meaning that he has arguably forfeited the issue on appeal. (Citation omitted.) See State v. Quarterman , 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 15 ; City of Xenia v. Wallace , 37 Ohio St.3d 216, 218-219, 524 N.E.2d 889 (1988).

      Mattox made only one motion for acquittal.


source: Caselaw Access Project

author: OSOWIK, J.

license: Public Domain

text:
    STATE of Ohio, Appellee v. Richard C. MICK, Appellant
    Nos. E-16-073
    Court of Appeals of Ohio, Sixth District, Erie County.
    Decided: March 16, 2018
    Kevin J. Baxter, Erie County Prosecuting Attorney, and Aaron T. Lindsey and Pamela A. Gross, Assistant Prosecuting Attorneys, for appellee.
    Russell S. Bensing, Cleveland, for appellant.
    DECISION AND JUDGMENT
   OSOWIK, J.

Introduction

{¶ 1} This is an appeal from an Erie County Court of Common Pleas' judgment of conviction and sentence. A jury found Richard Mick, defendant below and appellant herein, guilty of two counts of gross sexual imposition and two counts of rape. The trial court sentenced Mick to serve a mandatory life sentence in prison.

{¶ 2} On appeal, Mick asserts several errors, including that he was denied effective assistance of trial counsel when his counsel refused to participate in any phase of his trial. Because we find that Mick was denied his constitutional right to effective representation, and because Mick did not waive that right, we reverse his conviction and remand for a new trial.

Facts and Procedural History

{¶ 3} On May 14, 2014, the Erie County Grand Jury indicted Mick of two counts of gross sexual imposition, in violation of R.C. 2907.05(A)(4), a third degree felony and two counts of rape, in violation of R.C. 2907.02(A)(1)(b), a first degree felony. The victim identified in Counts 1 and 2 was "L.S."; the victim identified in Counts 3 and 4 was "E.M." Both victims were less than 13 years of age at the time of the alleged crimes. Mick had served as the reverend of the Lighthouse Baptist Church in Sandusky, Ohio, and both victims had attended church there.

{¶ 4} Initially, Mick acted pro se, but within six weeks of his indictment, he was represented by the Erie County Public Defender's Office. Through counsel, Mick filed a motion to hire Terrence Campbell, Ph.D., an expert witness, at state expense. The trial court granted the motion.

{¶ 5} Eighteen months after his indictment, Mick fired his state-appointed attorney and hired, at his own expense, attorney K. Ronald Bailey. Bailey filed a notice of substitution of counsel on October 28, 2015. Over the course of the next year, Attorney Bailey filed a number of motions, including two motions to dismiss the case, two motions in limine, a motion to recuse the trial judge, and five motions to continue the trial date. Two of the motions to continue were granted; three were denied, including one filed the day before the October 4, 2016 trial.

{¶ 6} Mick also filed a motion to substitute Dr. Campbell, who had since died, at state expense. By order dated May 13, 2016, the trial court denied the motion for the reason that Mick "was not indigent for purposes of securing funds from the government to retain a substitute expert." Mick sought reconsideration of the order, which the trial court denied on May 27, 2016. Mick filed a second motion for reconsideration, which the trial court denied on the morning of trial, October 4, 2016.

{¶ 7} On the morning of trial, as voir dire was set to begin, Mick's attorney announced that he "cannot and will not be able nor willing to proceed today." He cited five reasons: (1) his own failure to secure his private investigator to testify at trial; (2) his client's poor health; (3) inadequate time (five days) to review the jury questionnaires, (4) his own mental and physical fatigue due to "travelling approximately 4,000 miles in four days" before trial; and (5) the trial court's denial of additional funding for an expert witness. Mick's attorney suggested that the trial court declare a mistrial, based on his own refusal to participate in the proceedings.

{¶ 8} Jury selection continued throughout the day on October 4, 2016. Despite being instructed to participate or risk being held in contempt, Attorney, K. Ronald Bailey refused to question any potential jurors or exercise any peremptory challenges. When jury selection was complete, Attorney Kenneth Bailey filed a notice of appearance in the case, with Mick's approval. Kenneth Bailey is K. Ronald Bailey's son.

{¶ 9} Also on October 4, 2016, Mick, acting through counsel, appealed the trial court's denial of the second motion for reconsideration (regarding his motion to substitute his expert witness). The next day, we dismissed the appeal, finding that the trial court's judgment entry was not a final appealable order under R.C. 2505.02. State v. Mick, 6th Dist. Erie No. E-16-062 (Oct. 5, 2016).

{¶ 10} Trial resumed on October 5, 2016. Again, the trial court instructed Attorney K. Ronald Bailey to participate or face contempt of court, and again he refused. The following is a synopsis of all six witnesses who testified at trial. When presented with the opportunity to cross examine each witness, K. Ronald Bailey asserted a variation of the following: "I cannot be effective and I'm not participating." Kenneth Bailey did not speak.

{¶ 11} L.S., who was 22 at the time of trial, testified first. L.S. attended Reverend Mick's church as a boy. L.S. testified that on three or four occasions, between 2003 and 2005, when he was between the ages of eight and ten years old, Mick led him into a church bathroom, ostensibly so that Mick could "check [him] for rashes." As a young boy, L.S. had a weak bladder and would occasionally wet himself. On those three of four occasions, Mick put his hands down L.S.'s pants and rubbed L.S.'s buttocks and scrotum. Each incident lasted about four or five minutes. L.S. did not believe that Mick had a legitimate purpose to examine him because L.S. "never once had a rash and it doesn't take that long to check for a rash." Years later, in 2012, when he was 18, L.S.'s mother "randomly" asked him "if anything at all had happened to him" at church. At first, L.S. denied that Mick had ever touched him inappropriately because he was embarrassed and didn't think she would believe him. After consulting with a reverend from another church, Rev. Jerald Fenske, L.S. reported Mick's abuse to her. Fenske also testified that the two discussed whether L.S. should report the abuse to his mother.

{¶ 12} The other victim, E.M., attended Mick's church as a young girl. E.M. described three separate incidents. The first occurred in the fall of 1999 when she was five years old. E.M. testified that Mick took her to a church office and put his fingers inside her vagina. During a second incident, when she was five or six years old, Mick "put his penis in [her] mouth very forcibly" for what "felt like an eternity," causing her to feel as though she was going to "choke." A third incident occurred sometime between 2000-2002, when she between the ages of six and eight. E.M. testified that she walked outside of the church at night toward a nearby overpass, when Mick "came out and pinned me on my back by my wrists and tried to penetrate me, but couldn't." She explained that the tip of Mick's penis penetrated her vagina which "felt like [she] was being ripped apart and the world stopped spinning." In 2012, E.M. told her then-boyfriend, now husband, what had occurred and then told her parents and the police.

{¶ 13} The state called two additional witnesses pursuant to Evid.R. 404(B). The first was Mick's daughter, R.O. R.O. described two incidents of vaginal rape by her father, the first when she was 13 and the other when she was 14 or 15. E.S., a boy, also testified. E.S. had attended Mick's church as a youngster. Between 2006 and 2010, when E.S. was between the ages of five and nine, he described how Mick would take him into his office, lock the door, and with his (Mick's) hands, grope E.S.'s chest, back, thighs, groin, and buttocks.

{¶ 14} Sandusky Police Detective Ken Nixon testified that there was no physical evidence linking Mick to the crimes because "all these alleg[ed incidents] happened behind closed doors * * * ten, 15 years ago, so there's nothing to collect. There's no evidence to collect."

{¶ 15} The jury found Mick guilty of all four counts set forth in the indictment. It also found, with regard to the first two counts, that L.S. was less than 13 years of age at the time of the offenses, and with regard to counts three and four, that E.M. was less than ten years of age at the time of the offenses. With respect to E.M., the jury found that Mick compelled her to submit by force, or threat of force. The trial court imposed a five year sentence as to Counts 1 and 2, to be served concurrently, and a life sentence as to Counts 3 and 4, to be served concurrently, but consecutively to Counts 1 and 2. Through appointed appellate counsel, Mick appealed and raises the following assignments of error.

Assignment of Error No.1: The Defendant was denied his right to the effective assistance of counsel, in violation of his rights as protected by the Sixth and Fourteenth Amendments to the United States Constitution, and Article I, Section 10 of the Ohio Constitution.
Assignment of Error No. 2: The trial court erred and abused its discretion in failing to sua sponte declare a mistrial, or grant the Defendant's Motion for Mistrial.
Assignment of Error No. 3: The trial court erred and abused its discretion in denying Defendant's Motion for Expert Witness Fees.
Assignment of Error No. 4: The trial court erred and abused its discretion in admitting evidence of prior acts of Defendant under Evid.R. 404(B).

{¶ 16} In his first assignment of error, Mick asserts that he was denied his constitutional right to counsel by virtue of his attorneys' refusal to participate during trial.

{¶ 17} "The Sixth Amendment, applicable to the States by the terms of the Fourteenth Amendment, provides that the accused shall have the assistance of counsel in all criminal prosecutions. The right to counsel is the right to effective assistance of counsel." (Emphasis added.) Missouri v. Frye , 566 U.S. 134, 132 S.Ct. 1399, 1404, 182 L.Ed.2d 379 (2012) ; see also Article I, Section 10 of the Ohio Constitution. To prevail on a claim of ineffective assistance of counsel, a criminal defendant must establish (1) deficient performance by counsel, i.e., performance falling below an objective standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. State v. Short , 129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 113 ; Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

{¶ 18} When challenging counsel's trial strategy through an ineffective assistance claim on appeal, "the appellant must overcome the 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance * * *' " State v. Lawson, 64 Ohio St.3d 336, 341, 595 N.E.2d 902 (1992), quoting Strickland at 689, 104 S.Ct. 2052. "Debatable trial tactics generally do not constitute a deprivation of effective counsel." State v. Phillips , 74 Ohio St.3d 72, 85, 656 N.E.2d 643 (1995).

{¶ 19} In this case, the state argues that the decision by Mick's attorneys not to participate at trial was a deliberate attempt to cause the court to declare a mistrial. Indeed, the transcript leaves no room for doubt that this was indeed their motive. Moreover, counsel actively defended Mick prior to, and even during the trial, albeit outside the presence of the jury. Thus, while we agree with the state, even deliberate trial tactics may constitute ineffective assistance of counsel if they fall "outside the wide range of professionally competent assistance." Strickland at 689, 104 S.Ct. 2052. A trial strategy consisting of a refusal to participate has been found to be objectively unreasonable. Martin v. Rose , 744 F.2d 1245, 1250 (6th Cir.1984), citing Strickland.

{¶ 20} The state also argues that Mick cannot show that he was prejudiced by his counsel's strategy, due to the "insurmountable amount of evidence that pointed to the fact that Mr. Mick had indeed committed the offenses of which he was ultimately convicted." We decline to characterize the evidence in this case, except to note that the only direct evidence against Mick was the testimony of the alleged victims, who were testifying years after the abuse allegedly occurred. Counsel's failure to test the prosecution's case left the jury with "no option but to convict." Martin at 1250.

{¶ 21} In most cases, a defendant's failure to satisfy either part of the test set forth in Strickland (deficient performance plus prejudice) is fatal to an ineffective assistance claim. Strickland at 697, 104 S.Ct. 2052 ; State v. Bradley , 42 Ohio St.3d 136, 143, 538 N.E.2d 373 (1989). United States v. Cronic , 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), presents an exception to that rule, however. In Cronic, decided the same day as Strickland, the United States Supreme Court "recognized that some circumstances are so likely to prejudice the defendant that no showing of prejudice is necessary." See State v. Sanders , 92 Ohio St.3d 245, 277, 750 N.E.2d 90 (2001). These circumstances include (1) the complete denial of counsel at a critical stage of the trial; (2) the complete failure of counsel to subject the prosecution's case to meaningful adversarial testing; (3) counsel's active representation of conflicting interests; and (4) where defense counsel was appointed only a few minutes before trial commenced. Sanders at 277, 750 N.E.2d 90, citing Cronic at 659-661, 104 S.Ct. 2039. A defendant who claims that his counsel failed to subject the prosecution's case to meaningful adversarial testing must establish that the failure is complete. Bell v. Cone , 535 U.S. 685, 696-697, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) ("When we spoke in Cronic of the possibility of presuming prejudice based on an attorney's failure to test the prosecutor's case, we indicated that the attorney's failure must be complete. We said 'if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing.' ") (Emphasis in original).

{¶ 22} The facts of Martin v. Rose , 744 F.2d 1245 are remarkably similar to the case before us. In Martin, the defendant was convicted of several sex offenses against his stepdaughters. His conviction was upheld in the state court, and he filed a writ of habeas corpus in federal court, claiming, among other arguments, that he was denied effective assistance of counsel. The record demonstrated that, in the nearly two years that preceded the trial, the defendant's attorney was actively involved in representing his client. As here, however, when the court denied the defendant's last minute motion for a continuance, a motion to dismiss, and a motion to certify an interlocutory appeal, the attorney announced that he would not participate in the trial. The attorney then "stood mute" for the entire length of trial. The defendant was found guilty and sentenced to life in prison. The Sixth Circuit found,

The failure of [the defendant's] attorney to participate in the trial made the adversary process unreliable. Because his attorney refused to participate in any aspect of the trial, [the defendant] was unable to subject the government's case against him to "the crucible of meaningful adversarial testing"-the essence of the right to effective assistance of counsel. Cronic at 2045. The attorney's total lack of participation deprived [the defendant] of effective assistance of counsel at trial as thoroughly as if he had been absent. This was constitutional error even without any showing of prejudice. Martin at 1250-1251, quoting Cronic at 2045.

{¶ 23} We agree with Mick that the cumulative effect of his counsel's decision not to conduct voir dire, to make an opening statement or closing argument, to cross examine any of the state's witnesses, to call any witnesses or offer any evidence on behalf of Mick, or to proffer jury instructions amounts to a complete failure to test the prosecution's case. Therefore, the narrow exception set forth in Cronic applies. Counsel's abandonment of their client throughout the most critical phase of the government's case against Mick deprived him of his constitutionally protected right to counsel. Mick need not show that he was prejudiced by his counsel's representation.

{¶ 24} Moreover, although Mick could have waived his constitutional right to counsel, the record shows that he did not. A criminal defendant has a constitutional right to waive counsel and to represent himself. Faretta v. California , 422 U.S. 806, 819, 95 S.Ct. 2525, 45 L.Ed. 2d 562 (1975). In order to ensure that a waiver of counsel is made knowingly, intelligently and voluntarily, the trial court must make sufficient inquiry to determine whether a defendant fully understands and intelligently relinquishes that right. State v. Johnson , 112 Ohio St.3d 210, 2006-Ohio-6404, 858 N.E.2d 1144.

To discharge this duty properly in light of the strong presumption against waiver of the constitutional right to counsel, a judge must investigate as long and as thoroughly as the circumstances of the case before him demand. The fact that an accused may tell him that he is informed of his right to counsel and desires to waive this right does not automatically end the judge's responsibility. To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A judge can make certain that an accused's professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered. (Citations omitted.) State v. Albert , 2d Dist. Montgomery No. 23148, 2010-Ohio-110, 2010 WL 169480, ¶ 12, quoting Von Moltke v. Gillies, 332 U.S. 708, 723-724, 68 S.Ct. 316, 92 L.Ed. 309 (1948).

{¶ 25} Though the record discloses no discord between Mick and his counsel over their decision to abandon him during trial, there is no evidence of waiver. In fact, the trial court expressed its reluctance to question Mick directly on the subject, for fear of violating his attorney-client privilege and/or risking another motion to recuse. As explained above, however, the court could, and should, have questioned Mick to ascertain whether he understood the implications and consequences of his attorneys' strategy to cause a mistrial. Any concern that counsel might seek to have the judge recuse himself must be secondary to Mick's constitutional right to counsel. We find that Mick did not waive that right.

{¶ 26} Mick's first assignment of error is well-taken. In light of this court's decision with regard to the first assignment of error, we find that the remaining assignments of error are moot, and we decline to address them. App.R. 12. The judgment of conviction and sentence of the Erie County Court of Common Pleas is reversed, and the matter is remanded for new trial. Appellee is ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgment reversed.

Mark L. Pietrykowski, J.

Arlene Singer, J.

CONCUR.

      A contempt proceeding was held following the trial. The court found that K. Ronald Bailey had "impeded, embarrassed and obstructed [the] Court in the performance of its function" and imposed sanctions of 30 days in jail, a $250 fine and court costs. We upheld the imposition of sanctions on December 8, 2017. State v. Mick, 6th Dist. Erie No. E-16-074, 2017-Ohio-8922, 2017 WL 6209671.


author: FROELICH, J.

text:
    U.S. BANK NATIONAL ASSOCIATION, Plaintiff-Appellee v. Hadassah L. CONRAD, et al., Defendant-Appellee
    Nos. 27716 & 27717
    Court of Appeals of Ohio, Second District, Montgomery County.
    Rendered March 16, 2018
    BRIAN E. CHAPMAN, Atty. Reg. No. 0039826, 3962 Red Bank Road, Cincinnati, Ohio 45227, Attorney for Plaintiff-Appellee
    GREGORY T. ACKERMAN, 556 Shadowlawn Avenue, Dayton, Ohio 45419, Appellant, Pro Se
   FROELICH, J.

{¶ 1} Gregory T. Ackerman appeals from the trial court's denial of his motion to stay the sheriff's sale of the foreclosed property at issue and the trial court's judgment confirming the sale of the foreclosed property and ordering distribution of the proceeds. For the following reasons, the trial court's judgments will be affirmed.

I. Facts and Procedural History

{¶ 2} In April 2009, Hadassah Conrad borrowed $109,825 from First Mortgage Banc Corp for the purchase of a residence located at 557 Shadowlawn Avenue in Dayton. Conrad executed a note for the loan, which was secured by a mortgage on the property. First Mortgage transferred the loan to U.S. Bank National Association by an allonge and an assignment of mortgage.

{¶ 3} On March 10, 2017, U.S. Bank filed a foreclosure complaint in rem against Conrad, alleging that she had defaulted on the note and mortgage and that $102,005.67, plus interest, remained due and owing on the note. In addition to Conrad, the complaint named JPMorgan Chase Bank, the Montgomery County Treasurer, and the unknown spouse of Hadassah Conrad as defendants due to their possible interest in the property. U.S. Bank sought a finding that Conrad had defaulted on the loan, foreclosure of the equity of redemption and any dower rights, and the sale of the property. The complaint indicated that Conrad's indebtedness had been discharged in bankruptcy and, consequently, U.S. Bank was not seeking a deficiency judgment.

{¶ 4} The Montgomery County Treasurer filed an answer to the complaint. No other defendant filed an answer. On May 10, 2017, U.S. Bank moved for a default judgment against Conrad, Conrad's unknown spouse, and JPMorgan Chase Bank.

{¶ 5} On May 25, 2017, the trial court entered a judgment in rem, finding that the Montgomery County Treasurer was entitled to unpaid taxes, assessments, interest, and penalties on the property, that $102,005.67 plus interest was due and owing to U.S. Bank, that the indebtedness had been discharged in bankruptcy, and that the mortgage was a valid first mortgage lien on the property. The trial ordered that the equity of redemption and any dower rights of all defendants be foreclosed and the property sold.

{¶ 6} An order of sale was filed on May 26, 2017, and a sheriff's sale was scheduled for August 11, 2017. Notice of the sheriff's sale was published in the Dayton Daily News.

{¶ 7} On August 10, 2017, the day before the scheduled sale, Ackerman filed a combined "Notice and Filing of Claim of Interest in Land" and "Motion for Stay of Sheriff Sale." In his notice and motion, Ackerman stated that he resides at 556 Shadowlawn Avenue, which is across the street from the foreclosed property, and that he had a "claim of interest, objective use, and enjoyment of the property at 557 Shadowlawn Ave. Dayton, Ohio 45419 for the past 29 years (1997)." Pursuant to R.C. 5301.51 and 5301.52, Ackerman asked the trial court for a 31-day extension of time (until September 11, 2017) to file a "recording affidavit relating to title" with the county recorder. Ackerman also asked the trial court to stay the sheriff's sale "while the county (Montgomery County) record is being satisfied."

{¶ 8} On August 11, 2017, the trial court overruled Ackerson's motion for a stay of the sheriff's sale. The court's decision stated in its entirety:

This matter comes before the Court on Third Party Greg T. Ackerman's August 10, 2017 Motion for Stay of Sheriff Sale. The Motion comes on the eve of the Sheriff Sale, which was ordered by the Court on May 26, 2017 and set by Notice on July 12, 2017. It does not describe Ackerman's interest in the property other than to note that he has "a claim of interest, objective use, and enjoyment" of the property for the past 29 years.
Not only is the Motion untimely, but it fails to set out any true claim of interest in the property. The Motion is OVERRULED.

{¶ 9} The property was sold at the sheriff's sale to USREEB Dayton, LLC, for $70,000. On August 31, 2017, the trial court entered a judgment confirming the sale of the property and specifying the distribution of the proceeds of the sale.

{¶ 10} Ackerman filed two notices of appeal. In Case No. 27716, Ackerman appealed the judgment entry confirming the sale and ordering distribution of the proceeds. In Case No. 27717, Ackerman appealed the denial of his motion to stay the sheriff's sale. We consolidated the appeals and ordered Ackerman to file a combined brief for both cases.

II. Trial Court's Denial of Ackerman's Motion

{¶ 11} Ackerman states one assignment of error:

The trial court err[ed] to realize the generally meritorious text of the Appellant's motion, filed on August 10, 2017. Specifically, an err [sic] "mistake" in the direct relation of the Appellant to the property at issue with the text words in his announcement to a "meaningful notice and filing of claim of interest" in land at 557 Shadowlawn Ave., Dayton, Ohio 45419.

(Emphasis in original.)

{¶ 12} Ackerman's appellate brief is somewhat confusing. However, he appears to argue that the trial court erred in failing to recognize his claim of interest in the foreclosed property, in failing to stay the sheriff's sale, and in ultimately confirming the sale of the property. Although not specifically stated, it appears that Ackerman's aim may have been to intervene in the litigation so that he could assert his interest in the property.

{¶ 13} Before addressing Ackerman's specific issues, we begin with a review of the course of foreclosure proceedings.

{¶ 14} "A foreclosure action is a two-step process, the first part of which ends with the judgment and decree of foreclosure, which is a final appealable order. The second part of the process involves the sale of the property, culminating in a confirmation of sale and dispersal of the proceeds. An order confirming the sale of the property is also a final appealable order." (Citations omitted.) Fifth Third Bank v. Dayton Lodge LLC. , 2d Dist. Montgomery No. 24843, 2012-Ohio-3387, 2012 WL 3061268, ¶ 18. See Countrywide Home Loans Servicing, L.P. v. Nichpor , 136 Ohio St.3d 55, 2013-Ohio-2083, 990 N.E.2d 565, ¶ 6.

{¶ 15} A suit for foreclosure of the mortgage "constitutes a proceeding for the legal determination of the existence of a mortgage lien, the ascertainment of its extent, and the subjection to sale of the property pledged for its satisfaction, and no more." Wells Fargo Bank, N.A. v. Young , 2d Dist. Darke No. 2009 CA 12, 2011-Ohio-122, 2011 WL 245788, ¶ 28, quoting Carr v. Home Owners Loan Corp. , 148 Ohio St. 533, 540, 76 N.E.2d 389 (1947). The final judgment in a foreclosure proceeding "will determine the rights of all the parties in the premises sought to be foreclosed upon." Marion Production Credit Assn. v. Cochran , 40 Ohio St.3d 265, 270, 533 N.E.2d 325 (1988). Upon the entry of a judgment of foreclosure, the trial court must order the property to be sold. See R.C. 2323.07.

{¶ 16} R.C. Chapter 2329 governs execution against property. "The primary purpose and goal of a foreclosure sale is to protect the interests of the mortgagor-debtor while, at the same time, ensuring that the secured creditors receive payment for unpaid debts." Young at ¶ 30, citing Ohio Sav. Bank v. Ambrose , 56 Ohio St.3d 53, 56, 563 N.E.2d 1388 (1990) and Huntington Natl. Bank v. Burch , 157 Ohio App.3d 71, 2004-Ohio-2046, 809 N.E.2d 55, ¶ 36 (2d Dist.). Prior to confirming the sale of the property, the trial court must determine that the sale of property was made, in all respects, in conformity with R.C. 2329.01 to R.C. 2329.61. R.C. 2329.31 ; Burch at ¶ 15 ; see CitiMortgage, Inc. v. Roznowski , 139 Ohio St.3d 299, 2014-Ohio-1984, 11 N.E.3d 1140, ¶ 40 ("The confirmation process is an ancillary one in which the issues present are limited to whether the sale proceedings conformed to law."). The court may stay confirmation of the sale "to permit a property owner time to redeem the property or for any other reason that it determines is appropriate." R.C. 2329.31(A).

{¶ 17} Generally, a trial court's decision to confirm or refuse a judicial sale will not be reversed by a reviewing court absent an abuse of discretion. Sutton Funding LLC. v. Herres , 2d Dist. Montgomery No. 26530, 2015-Ohio-3609, 2015 WL 5175178, ¶ 17. An abuse of discretion implies that the court's attitude was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶ 18} Ackerman's motion to stay and notice of "claim of interest in land," filed one day before the scheduled sheriff's sale, stated that Ackerman resides across the street from 557 Shadowlawn Avenue and that he has had a "claim of interest, objective use, and enjoyment of the property at 557 Shadowlawn Ave. * * * for the past 29 years (1997)." Ackerman did not explain his interest in the property or provide any documentation to substantiate his claim. In addition, when Ackerman filed his notice and motion, the trial court had already entered a final judgment and decree of foreclosure regarding the rights of the parties to the foreclosure action; Ackerman did not ask the trial court to vacate that judgment, nor did his notice and motion expressly seek to intervene in the action. Without additional information and given the timing of Ackerman's notice and motion, the trial court acted reasonably when it proceeded with the sheriff's sale and later confirmed the sale.

{¶ 19} In his appellate brief, Ackerman enumerates various ways that he used and enjoyed the property located at 557 Shadowlawn Avenue. The list included, for example, using the house and garage for storage of his personal property and business's property, using the house for daily activities (laundry, eating, showering, sleeping, etc.), maintaining the property, and holding family parties. However, in reviewing the trial court's judgment, we are limited to the record before the trial court. Kahler v. Eytcheson , 2d Dist. Montgomery No. 23523, 2012-Ohio-208, 2012 WL 175416, ¶ 23. None of the specific information about how Ackerman used the property or why he believed he had an interest in 557 Shadowlawn was provided to the trial court. Accordingly, we cannot consider the additional information in Ackerman's brief in our appellate review.

{¶ 20} Finally, even if we were to construe Ackerman's notice and motion as a motion to intervene, the trial court did not abuse its discretion in failing to permit Ackerman to intervene in the foreclosure litigation. Civ.R. 24(A) provides:

Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of this state confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction that is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

Civ.R. 24(C) requires a person desiring to intervene to serve a motion to intervene upon the parties, to state the grounds for intervention, and to accompany the motion with a pleading setting forth the claim or defense for which intervention is sought.

{¶ 21} Ackerman's notice and motion was filed on August 10, 2017, after the trial court entered its judgment and decree of foreclosure. "Intervention after final judgment has been entered is unusual and ordinarily will not be granted." State ex rel. First New Shiloh Baptist Church v. Meagher , 82 Ohio St.3d 501, 503-504, 696 N.E.2d 1058 (1998) ; Yemma v. Reed , 2017-Ohio-1015, 86 N.E.3d 980, ¶ 27-28 (7th Dist.) (motion to intervene following the entering of a judgment and decree of foreclosure was a post-judgment motion to intervene). Ackerman did not ask the court to vacate the judgment of foreclosure in order to pursue his claim. Moreover, Ackerman's notice was not accompanied by a pleading setting forth his claim and/or defense in the action, as required by Civ.R. 24(C). Accordingly, even if we were to construe Ackerman's notice and motion as a motion to intervene, we find no error in the trial court's decision to deny the motion.

{¶ 22} Ackerman's assignment of error is overruled.

III. Conclusion

{¶ 23} The trial court's judgments will be affirmed.

WELBAUM, P.J. and HALL, J., concur.

      It is unclear whether Ackerman intended to assert that his claim of interest began 29 years before or in 1997 (20 years before the filing of his notice and motion).


author: FROELICH, J. WELBAUM, P.J., concurring:

text:
    STATE of Ohio, Plaintiff-Appellee/Cross-Appellant v. Timothy FERGUSON, Defendant-Appellant/Cross-Appellee
    NO. 27325
    Court of Appeals of Ohio, Second District, Montgomery County.
    Rendered on March 16, 2018
    ALICE B. PETERS, Atty. Reg. No. 0093945, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422, Attorney for Plaintiff-Appellee/Cross-Appellant
    ADAM J. ARNOLD, Atty. Reg. No. 0088791, 120 W. Second Street, Suite 1502, Dayton, Ohio 45402, Attorney for Defendant-Appellant/Cross-Appellee
   FROELICH, J.

{¶ 1} Timothy Ferguson was found guilty by a jury in the Montgomery County Court of Common Pleas of one count of rape and one count of kidnapping. At sentencing, the offenses were merged, and Ferguson was sentenced to seven years of incarceration. Ferguson appeals from his conviction, raising three assignments of error, which relate to whether he should have been evaluated for his competency and sanity and whether he was denied the effective assistance of counsel. The State cross-appeals, challenging the merger of the offenses at sentencing. For the following reasons, the judgment of the trial court will be affirmed.

Facts and Procedural History

{¶ 2} On October 17, 2015, Ferguson met T.D. at the Regional Transit Authority hub in downtown Dayton. At the time, both were homeless. Ferguson told T.D. that he was planning to get a motel room and asked T.D. if she wanted to get some food and watch television. T.D. agreed. They picked up a pizza and went to a motel in Harrison Township, where they watched television for a few hours. T.D. also injected cocaine during this time, and Ferguson drank an alcoholic beverage or beverages.

{¶ 3} According to the State's evidence, T.D. became nervous about being at the motel with Ferguson when he began making sexual comments and references to other people being in the room. She asked to use Ferguson's phone and went into the bathroom, where she called her mother, shared her concerns about the situation, and asked for a ride; she asked her mother not to call the police because she (T.D.) had an outstanding warrant for her arrest.

{¶ 4} Ferguson came into the bathroom, took the phone, grabbed T.D.'s arm, and threw her onto the bed. Ferguson pulled off T.D.'s pants and underwear and, while he was on top of her, he told her to take off her shirt and bra. When she resisted, he hit her on the head and told her to stop listening to the other people in the room, because they did not know what they were talking about. T.D. was screaming and told Ferguson to stop, and he hit her on the head a second time, causing her to "see stars"; he also forced her legs apart and put his mouth on her vagina. Ferguson pulled the pillow out from under T.D.'s head and told her that he would "smother [her] to death" if she did not stop screaming.

{¶ 5} After he threatened to kill her, T.D. stopped fighting. Ferguson accused her and "the other people in the room" of putting "something on him" to make him lose his erection. He forced T.D. to masturbate him with her hand "for quite a while." He then "flipped [her] over on the bed," held his hand to the back of her neck to keep her face and arms on the bed, and vaginally raped her.

{¶ 6} T.D. denied that she had ever agreed to have sex with Ferguson and stated that there had never been anyone else in the motel room with them.

{¶ 7} When the rape ended, Ferguson went into the bathroom and T.D. fled from the room, naked, screaming, and without any of her belongings. She obtained help and clothing from a motel employee, who testified that T.D. was shaking, crying, and hysterical. T.D. called her mother again, and the mother told her that the police were already on their way.

{¶ 8} While they waited for the sheriff's deputies to arrive, T.D., the hotel employee, and another motel resident saw Ferguson walking away from the motel with a black backpack. After deputies arrived, T.D. was taken to a hospital, and the deputies searched the vicinity of the motel for a man matching Ferguson's description. They saw Ferguson a few hours later less than two miles from the motel; Ferguson fled as soon as he saw the deputy, but his backpack was recovered. Ferguson had provided his name and identification when he rented the motel room. Ferguson was arrested in La Mesa, California, more than six months later.

{¶ 9} T.D. and a motel employee testified that there were sheets and a comforter on the bed when Ferguson and T.D. entered. This bedding was not in the room when the sheriff's deputies arrived.

{¶ 10} On July 18, 2016, Ferguson was indicted on one count of rape by force or threat of force, two counts of gross sexual imposition by force, and one count of kidnapping. The rape and kidnapping were felonies of the first degree, and the gross sexual impositions were felonies of the fourth degree. Ferguson stood mute at his arraignment, and a plea of not guilty was entered on his behalf. He did not request a mental health evaluation of any kind before trial, and he did not amend his plea to not guilty by reason of insanity. The matter was tried to a jury on October 12-14, 2016. Ferguson was found guilty of rape and kidnapping, but not guilty of both counts of gross sexual imposition.

{¶ 11} The trial court ordered a presentence investigation (PSI), and Ferguson was sentenced on November 2, 2016. The trial court found that the kidnapping merged with the rape as an allied offense of similar import. The State objected to the merger, but requested that Ferguson be sentenced on the rape. The trial court imposed a seven-year mandatory sentence for the rape and designated Ferguson as a Tier III sex offender.

{¶ 12} Ferguson appeals, raising three assignments of error. The State cross-appeals, raising one assignment of error.

Ineffective Assistance of Counsel Regarding the Need for Mental Evaluation

{¶ 13} In his first assignment of error, Ferguson argues that he was denied the effective assistance of counsel because his attorney did not request a mistrial or a new trial when "[it] was made overwhelmingly apparent during the trial that [Ferguson] was hearing voices and imagining that other people were in the hotel room with him and [T.D.]" during the alleged rape. In his second and third assignments of error, Ferguson asserts that the trial court abused its discretion or committed plain error in failing to order an evaluation of his competency on its own initiative.

{¶ 14} The State responds that, although there was some evidence that Ferguson suffered from a mental illness, there was no evidence that counsel had failed to consider this issue, that Ferguson was denied the effective assistance of counsel, or that Ferguson had a condition that would satisfy the legal definition of incompetency or insanity. Because the evidence related to these assignments is the same, we will address these arguments together.

{¶ 15} We review alleged instances of ineffective assistance of trial counsel under the two-pronged analysis set forth in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Supreme Court of Ohio in State v. Bradley , 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). Pursuant to those cases, trial counsel is entitled to a strong presumption that his or her conduct falls within the wide range of reasonable assistance. Strickland , 466 U.S. at 688, 104 S.Ct. 2052.

{¶ 16} To establish ineffective assistance of counsel, a defendant must demonstrate both that trial counsel's conduct fell below an objective standard of reasonableness and that the errors were serious enough to create a reasonable probability that, but for the errors, the outcome of the case would have been different. See id. ; Bradley at 142, 538 N.E.2d 373. Hindsight is not permitted to distort the assessment of what was reasonable in light of counsel's perspective at the time, and a debatable decision concerning trial strategy cannot form the basis of a finding of ineffective assistance of counsel. State v. Cook , 65 Ohio St.3d 516, 524-525, 605 N.E.2d 70 (1992), citing Strickland ; State v. Fields , 2017-Ohio-400, 84 N.E.3d 193, ¶ 38 (2d Dist.).

Competency Standard

{¶ 17} A defendant is incompetent to stand trial if he or she "is incapable of understanding the nature and objective of the proceedings against the defendant or of assisting in the defendant's defense * * *." R.C. 2945.37(G). Criminal defendants are rebuttably presumed to be competent to stand trial. Id.

{¶ 18} The test for determining whether a defendant is competent to stand trial is whether he or she has sufficient present ability to consult with his or her lawyer with a reasonable degree of rational understanding and whether the defendant has a rational and factual understanding of the proceedings against him or her. State v. Neyland , 139 Ohio St.3d 353, 2014-Ohio-1914, 12 N.E.3d 1112, ¶ 32, citing State v. Berry, 72 Ohio St.3d 354, 359, 650 N.E.2d 433 (1995) and Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). In determining if incompetence was established, courts should consider the following: "(1) doubts expressed by counsel as to the defendant's competence; (2) evidence of irrational behavior; (3) the defendant's demeanor at trial; and (4) prior medical opinion relating to competence to stand trial." State v. Rubenstein, 40 Ohio App.3d 57, 60-61, 531 N.E.2d 732 (8th Dist. 1987).

{¶ 19} It is well established that a defendant may be emotionally disturbed or even psychotic and still be capable of understanding the charges against him and assisting his counsel; incompetency must not be equated with mere mental illness or emotional instability. State v. Bock, 28 Ohio St.3d 108, 110, 502 N.E.2d 1016 (1986) ; State v. Fahl, 2d Dist. Clark No. 2005-CA-98, 2006-Ohio-1809, 2006 WL 925180, ¶ 8. Accord State v. Smith, 89 Ohio St.3d 323, 329, 731 N.E.2d 645 (2000).

{¶ 20} Because a defendant is presumed to be competent to stand trial, the burden is on the defendant to prove by a preponderance of the evidence that he is not competent. State v. Jordan, 101 Ohio St.3d 216, 2004-Ohio-783, 804 N.E.2d 1, ¶ 28 ; R.C. 2945.37(G). A trial court's finding that a defendant is competent to stand trial will not be disturbed on appeal when there is some reliable and credible evidence supporting that finding. State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, ¶ 46.

Insanity Standard

{¶ 21} A person is not guilty by reason of insanity only if he or she proves that, at the time of the commission of the offense, the person did not know, as a result of a severe mental disease or defect, the wrongfulness of the person's acts. R.C. 2901.01(A)(14). A criminal defendant's sanity is not an element of an offense that the prosecution must prove. State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, ¶ 35. Rather, a plea of not guilty by reason of insanity is an affirmative defense, which must be pled and proved by a preponderance of the evidence. R.C. 2901.05(A) ; State v. Brown, 5 Ohio St.3d 133, 134, 449 N.E.2d 449 (1983).

Evidence in the Record Regarding Ferguson's Mental Health

{¶ 22} At trial, T.D. testified that Ferguson made reference to "other people in the room" three times: once immediately before the sexual assault began and twice during the assault. The first time, Ferguson told T.D. that there were other people in the room and that she "shouldn't listen to them." Then, after he had partially undressed T.D. and ordered her to take the rest of her clothes off, he hit her in the head and told her to stop listening to the other people in the room, "they don't know what they're talking about." Finally, Ferguson accused T.D. and others in the room of "put[ting] something on him" to make him lose his erection.

{¶ 23} There is no evidence in the record that Ferguson acted strangely during trial, was unable to understand the proceedings, or was unable to assist in his defense.

{¶ 24} The PSI contained varied and somewhat contradictory statements about Ferguson's mental health history. The PSI stated that, in April 2009, while on community control, Ferguson was referred to Eastway Behavioral Healthcare Center, but that he "refused to take any type of psychotropic medications, which may have contributed to his delusional thinking." Other than mentioning the symptom of "delusional thinking," the PSI did not state any specific diagnosis at that time. In April 2014, while on post-release control, the parole officer stated that Ferguson was "non-compliant," but did not specifically indicate any mental health concerns.

{¶ 25} In August 2014, Ferguson was placed on community control. During this period of supervision, the probation officer worked with Ferguson on "treatment" and "housing." The probation officer contacted "VOA, but they would not take Mr. Ferguson without mental health treatment being initiated." Ferguson failed to follow through with a referral to Eastway "by refusing treatment after being assessed"; in the next sentence, the PSI states that Ferguson was sent "for outpatient Sex Offender treatment." Before that treatment began, Ferguson committed the offenses that are the subject of this case.

{¶ 26} The Social History section of the PSI, under Physical/Mental Health, states that Ferguson reported that he had "never been diagnosed with a mental health disability" and was not under a doctor's care. The PSI did note that, in 2008, Ferguson pled not guilty by reason of insanity and received a competency evaluation. (The charge in that case was receiving stolen property.) "Results of the evaluation indicate Mr. Ferguson suffered from schizophrenia and often had paranoid and delusional thinking, but he repeatedly refused to take psychotropic medications." He was referred for treatment at Eastway, but failed to comply. However, in August 2014, Ferguson was screened by Samaritan Behavioral Health, Inc.; at that time, he "did not appear to be suffering from a mental disability" and was not referred for additional services.

{¶ 27} Although the references in the record to Ferguson's hearing voices and to past assessments and treatment raise questions about whether he had a mental disorder and, if so, what type, no reasonable inference can be drawn from this evidence that Ferguson lacked the ability to 1) consult with his lawyer, 2) understand the proceedings against him and the underlying facts with a reasonable degree of rational understanding, or 3) understand the wrongfulness of his acts. Although he had pled not guilty by reason of insanity to one offense seven years earlier, he was convicted of that offense (i.e., he was not found not guilty by reason of insanity).

{¶ 28} The record contains evidence from which one might infer that Ferguson has, at some times, exhibited signs of a mental disorder. However, on this record, there is no basis to conclude that any disorder created a reasonable question as to Ferguson's competency or sanity at the time of these offenses, issues on which Ferguson bore the burden of proof. Specifically, there was no evidence that Ferguson did not understand the nature and objective of the proceedings or was unable to help with his defense. There also was no evidence that he did not understand the wrongfulness of his acts at the time of the offense; his flight from the motel and from sheriff's deputies, as well as the circumstantial evidence that Ferguson took and disposed of the sheets from the motel room, support the inference that he did understand the wrongfulness of his acts. Finally, there is no basis to conclude that additional testing related to Ferguson's mental health would have affected the outcome of this case. As such, we cannot conclude that defense counsel acted ineffectively in failing to pursue this issue, or that the court abused its discretion or committed plain error in not ordering mental health evaluations on its own initiative.

{¶ 29} Ferguson's assignments of error are overruled.

Merger

{¶ 30} In its cross-appeal, the State argues that the trial court erred in merging Ferguson's convictions for rape and kidnapping.

{¶ 31} R.C. 2941.25 provides that:

(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.

{¶ 32} In State v. Ruff , 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, the Supreme Court of Ohio clarified the applicable standard when determining whether offenses merge as allied offenses of similar import and provided as follows:

Rather than compare the elements of two offenses to determine whether they are allied offenses of similar import, the analysis must focus on the defendant's conduct to determine whether one or more convictions may result, because an offense may be committed in a variety of ways and the offenses committed may have different import. No bright-line rule can govern every situation.
As a practical matter, when determining whether offenses are allied offenses of similar import within the meaning of R.C. 2941.25, courts must ask three questions when the defendant's conduct supports multiple offenses: (1) Were the offenses dissimilar in import or significance? (2) Were they committed separately? and (3) Were they committed with separate animus or motivation? An affirmative answer to any of the above will permit separate convictions. The conduct, the animus, and the import must all be considered.

Ruff at ¶ 30-31.

{¶ 33} As to the question of import and significance, "two or more offenses of dissimilar import exist within the meaning of R.C. 2941.25(B) when the defendant's conduct constitutes offenses involving separate victims or if the harm that results from each offense is separate and identifiable." Id. at ¶ 23.

{¶ 34} Our review of an allied offenses question is de novo. State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 12.

{¶ 35} The State argues that Ferguson's movement and restraint of T.D. had significance apart from facilitating the rape, that the harm caused by each offense was separate and identifiable, and that there were intervening acts-such as Ferguson's taking the phone from T.D. and throwing her on the bed-which show separate acts or a separate animus.

{¶ 36} We disagree with the State that the kidnapping in this case was committed separately or with a separate animus. T.D. went to the hotel voluntarily and remained there for several hours while she watched television, ate and used drugs; she was not concerned for her safety or held against her will during this initial period. T.D. became afraid only when Ferguson began making sexual comments and talking about others in the room and hearing voices. At this point, she borrowed Ferguson's phone and went to the bathroom to call her mother and ask for a ride. Ferguson then grabbed the phone away from T.D., threw her on the bed, began to undress her, and began various forms of sexual assault. There is no basis to conclude that Ferguson's restraint of T.D. at this point was motivated by something other than the intended sexual assault. Although T.D. was hit in the head as she struggled with Ferguson on the bed, there was no evidence that the injuries to her head or to her arm (from being thrown on the bed) had a separate animus from the rape. The other sex acts which T.D. alleged had occurred between the time she was pinned to the bed and the time of her vaginal rape (cunnilingus and forced masturbation of Ferguson) formed the basis of other charges (of which Ferguson was acquitted), but did not demonstrate that Ferguson's restraint of T.D. was separate and apart from the rape. The trial court did not err in merging the offenses of kidnapping and rape.

{¶ 37} The cases relied on by the State in support of its argument are distinguishable. In State v. Dudley , 2d Dist. Montgomery No. 22931, 2010-Ohio-3240, 2010 WL 2706318, the defendant pushed the victim over a guard rail and fell on her, injuring her ankle, and then dragged her 50 to 60 feet into the woods, where she was raped. When he left, he told the victim that, if she moved even "an inch" before he came back, he would kill her, and she did remain there for some time. We concluded that, under these circumstances, the defendant's restraint of the victim was done with a separate animus and caused separate harm to the victim from the rape. These facts are not analogous to Ferguson's case.

{¶ 38} We are also unpersuaded that cases cited by the State involving numerous types of rape, with "intervening acts" such as loss of an erection, removal of a tampon, and transition from one position or type of rape to another, which resulted in multiple counts of rape or attempted rape, support a conclusion that the rape and kidnapping in this case were not allied offenses. See State v. Jones , 78 Ohio St.3d 12, 676 N.E.2d 80 (1997) ; State v. Burgess , 162 Ohio App.3d 291, 2005-Ohio-3747, 833 N.E.2d 352 (2d Dist.).

{¶ 39} The State's assignment of error on cross-appeal is overruled.

{¶ 40} The judgment of the trial court will be affirmed.

DONOVAN, J., concurs.

WELBAUM, P.J., concurring:

{¶ 41} I concur in both the opinion and judgment of this court, but write separately merely to distinguish State v. Portman , 2d Dist. Clark No. 2013-CA-68, 2014-Ohio-4343, 2014 WL 4823868, a factually similar case involving rape and kidnapping offenses that we held were not allied offenses that merge.

{¶ 42} Like the instant case, in Portman , the victim's interaction with the defendant was initially voluntary. The victim in Portman was an escort who agreed to meet the defendant at the clothing store where he worked. After the victim in Portman arrived at the store and began interacting with the defendant, she, like the victim in this case, became uncomfortable with the defendant's behavior and wanted to leave. After the victim in Portman told the defendant that she wanted to leave, the defendant put a gun to her head, berated her, and then raped her several times. Id. at ¶ 33-37.

{¶ 43} Unlike Portman , the victim in the present case, T.D., never directly told Ferguson that she wanted to leave the motel room before he raped her. Even if we presume that Ferguson overheard T.D. tell her mother over the phone that she wanted to leave, the cases are still distinguishable because, unlike this case, the defendant in Portman prolonged the restraint of the victim after he raped her and, in doing so, subjected her to a separate risk of harm unrelated to the rape offense. Specifically, the defendant in Portman refused to allow the victim to use the restroom on the main floor of the clothing store, and when the victim attempted to leave against the defendant's wishes, the defendant wrestled with the victim on the stairs to prevent her from leaving. During this struggle, the victim was able to get control of the defendant's gun and escaped by shooting him in the face. Id. at ¶ 37.

{¶ 44} We held in Portman that "[a] separate animus for kidnapping exists where (1) 'the restraint is prolonged, the confinement is secretive, or the movement is substantial so as to demonstrate a significance independent of the other offense,' or (2) 'the asportation or restraint of the complainant subjects the complainant to a substantial increase in risk of harm separate and apart from that involved in the underlying crime.' " Portman , 2d Dist. Clark No. 2013-CA-68, 2014-Ohio-4343, 2014 WL 4823868 at ¶ 32, quoting State v. Logan , 60 Ohio St.2d 126, 397 N.E.2d 1345 (1979), syllabus. (Other citation omitted.) "Although focused on the animus aspect of the allied offense analysis, these factors are also reasonable considerations for determining whether the defendant committed kidnapping as separate conduct from other offenses." Id. , citing State v. Lovato , 2d Dist. Montgomery No. 25683, 2014-Ohio-2311, 2014 WL 2475593, ¶ 13. (Other citation omitted.)

{¶ 45} There is no question that the defendant in Portman prolonged the restraint of the victim and also subjected the victim to a separate risk of harm when he wrestled the victim on the stairs while armed. Accordingly, it was appropriate not to merge the defendant's rape and kidnapping offenses in Portman due to there being separate conduct and a separate animus. In this case, however, T.D. fled the motel room after Ferguson raped her; therefore, Ferguson's restraint of T.D. was not prolonged past the rape and T.D. was not subjected to a risk of harm separate and apart from the rape. In turn, the present case and Portman are factually distinguishable, as the kidnapping in this case was incidental to the rape and the offenses were properly merged at sentencing.

      The PSI's Social History section states that the information it contains was copied from the PSI in Case No. 14-CR-2279, because Ferguson refused to answer any questions in the PSI interview in this case.


text:
    IN RE: JANUARY 27, 2017 ORDER RELEASING GRAND JURY MATERIALS
    No. 27435
    Court of Appeals of Ohio, Second District, Montgomery County.
    Rendered March 16, 2018
    MATHIAS H. HECK, JR., by MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422, Attorney for Plaintiff-Appellant
    LAWRENCE J. GREGER, Atty. Reg. No. 0002592, 1100 Liberty Tower, 120 West Second Street, Dayton, Ohio 45402 MITCHELL J. ANDERSON, Atty. Reg. No. 0086950, 2300 Far Hills Avenue, Dayton, Ohio 45419, Attorneys for Defendant-Appellee-C.P.
   TUCKER, J.

{¶ 1} Plaintiff-appellant, the State of Ohio, appeals from the trial court's order of January 27, 2017, granting in part the petition of Defendant-appellee, C.P., for the release of certain grand jury testimony and associated exhibits. The State argues that the trial court erred because C.P. may not use the materials for the purpose indicated in his petition; because C.P. failed to demonstrate a particularized need for the testimony; and because the court did not inspect the materials in camera before releasing them. For the following reasons, we find that the court should have denied C.P.'s petition, and therefore, we reverse.

I. Facts and Procedural History

{¶ 2} A Montgomery County grand jury issued an indictment in May, 2015, charging C.P. with the commission of two fourth-degree felonies pursuant to Ohio law. After a bench trial in August, 2015, the court found C.P. not guilty on both of the charges.

{¶ 3} C.P. thereafter brought suit under 42 U.S.C. 1983 in the U.S. District Court for the Southern District of Ohio against Defendants, J.H., M.H. and B.P., alleging that they conspired to violate his civil rights by instigating the foregoing criminal prosecution without probable cause. On January 4, 2017, C.P. petitioned the trial court "to order the release of all testimony and exhibits [that had been] presented to the grand jury," contending that without these materials, he would be deprived of a fair adjudication in his federal action.

{¶ 4} In its order of January 27, 2017, the trial court granted C.P.'s petition in part; it authorized the release of "the grand jury testimony of [J.H. and M.H.] only [emphasis sic] and any documents or exhibits related thereto." The State timely filed its notice of appeal to this court on February 2, 2017.

II. Analysis

{¶ 5} For its sole assignment of error, the State contends that:

THE TRIAL COURT ABUSED ITS DISCRETION IN ORDERING THE RELEASE OF GRAND JURY TESTIMONY DIRECTLY TO APPELLEE. HE FAILED TO DEMONSTRATE A PARTICULARIZED NEED FOR THE MATERIALS, AND EVEN IF HE ESTABLISHED A LEGITIMATE NEED, THE TRIAL COURT FAILED TO CONDUCT AN IN CAMERA INSPECTION BEFORE RELEASING THE MATERIAL [sic] TO APPELLEE.

{¶ 6} The trial court determined that C.P. demonstrated a particularized need for the release of the grand jury testimony given by J.H. and M.H. because, in his federal action, C.P. could not otherwise meet his burden to prove that his criminal prosecution was not based upon probable cause. According to the State, the court erred in making this determination because C.P. may not use grand jury testimony as evidence in an action for malicious prosecution under 42 U.S.C. 1983 ; because C.P. did not demonstrate a particularized need for the release of the testimony; and because the court failed to review the testimony in camera before ordering its release. For his part, C.P. argues that he may use grand jury testimony as evidence in his federal action; that the trial court correctly found that he had a particularized need for the testimony; and that the trial court was not required to inspect the testimony in camera before granting his petition. We review the trial court's order for abuse of discretion. See State v. Brown , 38 Ohio St.3d 305, 308, 528 N.E.2d 523 (1988) ; State v. Perkins , 191 Ohio App.3d 263, 2010-Ohio-5161, 945 N.E.2d 1083, ¶ 45 (2d Dist.).

{¶ 7} Ohio law regards grand jury proceedings as secret, permitting the disclosure of testimony and other evidence that has been presented to a grand jury only when " 'the ends of justice require it.' " State v. Coley , 93 Ohio St.3d 253, 261, 754 N.E.2d 1129 (2001), quoting State v. Greer , 66 Ohio St.2d 139, 420 N.E.2d 982 (1981), paragraph two of the syllabus. That is, a "court may order disclosure of evidence presented to a grand jury 'only after [it] carefully weighs the need to maintain the secrecy of the grand jury proceedings against [the] petitioner's need for the information and determines that justice can only be done if disclosure is made.' " Wiggins v. Kumpf , 2d Dist. Montgomery No. 26263, 2015-Ohio-201, 2015 WL 302839, ¶ 8, quoting In re Petition for Disclosure of Evidence Presented to Franklin County Grand Juries in 1970 , 63 Ohio St.2d 212, 218, 407 N.E.2d 513 (1980). To evaluate the need for secrecy of grand jury proceedings, a court should refer to the following five "reasons for preserving secrecy":

1. [P]revent[ing] the escape of those whose indictment may be contemplated;
2. [I]nsur[ing] the utmost freedom to the grand jury in its deliberations, and * * * prevent[ing] persons subject to indictment or their friends from importuning the grand jurors;
3. [P]revent[ing] subornation of perjury or tampering with * * * witnesses who may testify before [the] grand jury and later appear at the trial of those indicted by it;
4. [E]ncourag[ing] free and untrammeled disclosures by persons who have information with respect to the commission of crimes; [and]
5. [P]rotect[ing] innocent [persons] who [are] exonerated from disclosure of the fact that [they have] been under investigation, and from the expense of standing trial where there was no probability of guilt.

In re Petition for Disclosure , 63 Ohio St.2d at 219, 407 N.E.2d 513, quoting United States v. Rose , 215 F.2d 617, 628-629 (3d Cir.1954). The petitioner's burden to demonstrate " 'a particularized need for disclosure [that] outweighs the need for secrecy' " is, however, "a threshold requirement." State v. Curran , 166 Ohio App.3d 206, 2006-Ohio-773, 850 N.E.2d 81, ¶ 16 (2d Dist.), quoting State v. Greer , 66 Ohio St.2d 139, 420 N.E.2d 982 (1981), syllabus.

{¶ 8} For purposes of federal law, a "grand jury witness has absolute immunity from any * * * claim [under 42 U.S.C. 1983 ] based on the witness'[s] testimony," and this "rule may not be circumvented by [way of a] claim[ ] that a grand jury witness conspired to present false testimony or by us[e] [of] evidence of [a] witness'[s] testimony to support any other [ 42 U.S.C.] 1983 claim concerning the initiation or maintenance of a prosecution." Rehberg v. Paulk , 566 U.S. 356, 369, 132 S.Ct. 1497, 182 L.Ed.2d 593 (2012). Immunity applies "to all grand-jury witnesses, even law-enforcement officers who have 'conspired to present false testimony.' " (Emphasis in original.) King v. Harwood , 852 F.3d 568, 584 (6th Cir.2017), quoting Rehberg , 566 U.S. at 369, 132 S.Ct. 1497.

{¶ 9} On September 28, 2017, the State filed a notice of supplemental authority regarding C.P.'s federal action. Each of the defendants in that case filed a motion for judgment on the pleadings, and in an order entered on September 27, 2017, the district court adopted a magistrate's report and recommendations for the resolution of the three motions. The district court's order disposes of all of C.P.'s claims, except: (1) a cause of action for malicious prosecution under 42 U.S.C. 1983 against J.H.; and (2) a cause of action against M.H. pursuant to R.C. 4505.02. See Notice of Supplemental Authority, Exs. 1-2, Sept. 28, 2017. Because J.H. has absolute immunity from any liability under 42 U.S.C. 1983 based upon his grand jury testimony, C.P. may not use the testimony as evidence in his case against J.H. Consequently, we hold that the trial court erred by ordering the release of J.H.'s grand jury testimony.

{¶ 10} C.P.'s remaining cause of action against M.H. is grounded in Ohio law, so we evaluate the trial court's order as it relates to M.H.'s grand jury testimony in light of the Ohio Supreme Court's decision in In re Petition for Disclosure of Evidence Presented to Franklin County Grand Juries in 1970 , 63 Ohio St.2d 212, 407 N.E.2d 513 (1980). Evaluated accordingly, we find that C.P. did not meet his threshold burden to establish a particularized need for M.H.'s testimony. In his federal complaint, in his petition, and again in his brief to this court, C.P. describes the factual basis of his allegation that M.H. unlawfully obtained title to a motor vehicle of disputed ownership; the detail provided in these recitations indicates that the transcript of M.H.'s grand jury testimony would provide little or no additional information germane to C.P.'s claim against M.H. under R.C. 4505.02. For all of the foregoing reasons, the State's assignment of error is sustained.

III. Conclusion

{¶ 11} We find that the trial court erred by ordering the release of the grand jury testimony given by J.H. and M.H. The trial court's order of January 27, 2017, is therefore reversed.

WELBAUM, P.J. and FROELICH, J., concur.

      We refer to C.P. and the defendants in his federal action only by their initials pursuant to our order of February 8, 2017.