State of Ohio v. PRESTON
| Decision Date | 31 March 2011 |
| Docket Number | No. 10CA4,10CA4 |
| Citation | 2011 Ohio 1645 |
| Court | Ohio Court of Appeals |
| Parties | STATE OF OHIO, Plaintiff-Appellee, v. RANDALL A. PRESTON, SR., Defendant-Appellant. |
OPINION TEXT STARTS HERE
DECISION AND JUDGMENT ENTRY
APPEARANCES:
COUNSEL FOR APPELLANT: Timothy Young, Ohio Public Defender, and E. Kelly Mihocik, Assistant Ohio Public Defender
COUNSEL FOR APPELLEE: Jonathan D. Blanton, Jackson County Prosecuting Attorney.
{¶ 1} This is an appeal from a Jackson County Common Pleas Court judgment of conviction and sentence. The jury found Randall A. Preston, Sr., defendant below and appellant herein, guilty of three counts of sexual battery in violation of R.C. 2907.03.
{¶ 2} Appellant assigns the following errors for review:
{¶ 3} On the evening of August 23, 2007, Adam Kennedy heard his sister (S.K.) scream from a downstairs bathroom. S.K. later confided to Kennedy, her brother, that appellant walked in on her while she was in the shower but, more important, had forced her into sexual relations with him over a number of years.1 Adam and S.K. thereafter contacted the authorities.
{¶ 4} The Jackson County Grand Jury returned an indictment that charged appellant with (1) one count of rape in violation of R.C. 2907.02; and (2) six counts of sexual battery in violation of R.C. 2907.03. Appellant pled not guilty to all charges.
{¶ 5} At trial, S.K. and Adam related their testimony to the jury. At the conclusion of the prosecution's case, however, the appellee withdrew counts one, two and three of the indictment. The defense also moved the court for a Crim.R. 29 judgment of acquittal on the remaining counts, but the trial court granted the motion only with respect to count five.
{¶ 6} The defense case largely challenged S.K.'s credibility. Justina Preston, appellant's wife, testified that her daughter lied "quite a bit" and would steal money from her. Appellant also testified and denied any sexual contact with his stepdaughter. Appellant also hinted that he and Adam Kennedy had problems. This animosity surfaced during the prosecution's case-in-chief when S.K. revealed that her brother and appellant "never got along." Indeed, at trial Kennedy referred to his mother as "Mrs. Preston."
{¶ 7} After hearing the evidence, the jury returned guilty verdicts on counts four, sixand seven. The trial court sentenced appellant to serve five years on each count, with the sentences to be served consecutively, for a total of fifteen years in prison. The court, however, did not dispose of the four remaining counts. On June 25, 2010, the trial court issued an entry that disposed of counts one, two, three and five of the original indictment. This appeal followed.
{¶ 8} In his first assignment of error, appellant asserts that he received ineffective assistance from his trial counsel. In particular, appellant argues that his trial counsel should have moved to dismiss the case for a violation of his statutory speedy trial rights.2
{¶ 9} A criminal defendant has a constitutional right to counsel, and this includes the right to the effective assistance from counsel. McMann v. Richardson (1970), 397 U.S. 759, 770, 90 S.Ct. 1441, 25 L.Ed.2d 763; State v. Lytle (Mar. 10, 1997), Ross App. No. 96CA2182. To establish ineffective assistance of counsel, a defendant must show that (1) his counsel's performance was deficient, and (2) such deficient performance prejudiced the defense and deprived him of a fair trial. See e.g. Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674; also see State v. Perez, 124 Ohio St.3d 122, 920 N.E.2d 104, 2009-Ohio-6179, at }}200. Both prongs of the "Strickland test" need not be analyzed, however, if a claim can be resolved under one prong. State v. Madrigal (2000), 87 Ohio St.3d 378, 389, 721 N.E.2d 52. To establish the existence of prejudice element, a defendant must show that a reasonable probability exists that, but for counsel's alleged error, the result of the trial would havebeen different. State v. White (1998), 82 Ohio St.3d 16, 23, 693 N.E.2d 772; State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, at paragraph three of the syllabus.
{¶ 10} R.C. 2945.71 states that a person against whom a felony charge is pending shall be brought to trial within two hundred seventy days after arrest. Id. at (C)(2). If an accused is in jail in lieu of bail solely on the pending charge, the statute mandates that each day count as three days. Id. at (E). If an accused is not brought to trial within the statutory time limit, he must be discharged. R.C. 2945.73(B). However, the time limits of R.C. 2945.71 can be extended for any of the reasons set out in R.C. 2945.72.
{¶ 11} In the case sub judice, appellant was indicted on December 9, 2008. He appears to have remained free on his own recognizance thereby negating any application of the triple-count mechanism. Eighty-five (85) days elapsed to March 4, 2009, when appellant filed a motion to dismiss and thereby tolled the speedy trial time.3 Speedy trial time started again on May 11, 2009 when the trial court overruled appellant's motion. Another seventy-four (74) days elapsed before appellant filed another motion to dismiss. On August 3, 2009, appellant withdrew that motion, and his trial commenced on October 10, 2009, eighty-seven (87) later.By our calculation, two hundred forty-six (246) days elapsed for speedy trial purposes and this is within the R.C. 2945.71(C)(2) time frame.4
{¶ 12} Thus, because appellant cannot establish prejudice, his claim of ineffective assistance of counsel is without merit and we hereby overrule appellant's first assignment of error.
{¶ 13} In his second assignment of error, appellant asserts that insufficient evidence supports his conviction on counts one and two of the indictment.5 In particular, appellant argues that no evidence was adduced to show that a sexual battery occurred within the time frames set forth in those counts.
{¶ 14} When appellate courts review claims regarding the sufficiency of the evidence, they must look to adequacy of the evidence and whether that evidence, if believed, supports a finding of guilt beyond a reasonable doubt. State v. Thompkins (1997), 78 Ohio St.3d 380, 386, 678 N.E.2d 541; State v. Jenks (1991), 61 Ohio St.3d 259, 273, 574 N.E.2d 492. In other words, after viewing all of the evidence, and each inference reasonably drawn therefrom, in a light most favorable to the prosecution, would any rational trier of fact have found all essential elements of the offense beyond a reasonable doubt? State v. Were, 118 Ohio St.3d 448, 890N.E.2d 263, 2008-Ohio- 2762, at ¶ 132; State v. Hancock, 108 Ohio St.3d 57, 840 N.E.2d 1032, 2006-Ohio-160, at ¶34.
{¶ 15} Sexual battery occurs when someone engages in sexual conduct with a stepchild. See R.C. 2907.03(A)(5).6 Although S.K. testified to a number of instances of sexual conduct with appellant, we recognize that her testimony was somewhat imprecise as to the exact time and place when the offenses occurred. Nevertheless, we believe the evidence was sufficient to send those counts to the jury.
{¶ 16} Count five alleges that one instance occurred in 2003 or 2004, in a bedroom at the residence, and the prosecution's Bill of Particulars alleged that S.K. was fourteen years old at the time the offense occurred. S.K. testified that one incident occurred when she was a middle school student and appellant signed her out of school, ostensibly for a dental appointment, took her home and "raped" her in his and her mother's bedroom. S.K. also testified at trial that she was a senior in high school and nearly eighteen years old. Counting back, the incident she described from middle school falls within the Count five time frame and, thus, sufficient evidence existed to send this count to the jury.
{¶ 17} The battery alleged in count four allegedly occurred in "2005 and/or 2006" and, according to the prosecution's Bill of Particulars, took place in an outbuilding on the residence premises. At trial, S.K. testified that her step-father had sex with her in an outbuilding "several times." Admittedly, the victim's testimony is less than specific on direct examination as to the timing of these incidents, describing them as happening before August 2007. However, as theprosecution points out, S.K. testified that she gave a statement to an interviewer that described ...
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