State v. Abi-Sarkis

• Citation: 535 N.E.2d 745,41 Ohio App.3d 333
• Decision Date: 14 March 1988
• Docket Number: ABI-SARKI,A,54073,Nos. 52405,s. 52405
• Parties: The STATE of Ohio, Appellee, v.ppellant.
• Court: United States Court of Appeals (Ohio)

Page 333

41 Ohio App.3d 333

535 N.E.2d 745

The STATE of Ohio, Appellee, v. ABI-SARKIS, Appellant.

Nos. 52405, 54073.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

March 14, 1988.

Syllabus by the Court

1. The offenses of rape (R.C. 2907.02) and gross sexual imposition (R.C. 2907.05) should be merged pursuant to R.C. 2941.25(A) when fondling of the victim is incidental to the act of fellatio and there are no separate animuses to said conduct.

2. A reviewing court may conclude that a verdict is sustained by sufficient evidence as a matter of law, but may set aside such a verdict when the interest of justice weighs against that verdict.

3. When reviewing questions concerning evidentiary weight, an appellate court sits as a "thirteenth juror" and makes its own independent review of the evidence and inferences derived therefrom, and assesses and weighs the credibility of each witness's testimony.

4. While the discretionary power to reverse a judgment as against the manifest weight of the evidence and to grant a new trial should be exercised with caution, an appellate court should reverse when the evidence weighs heavily against conviction.

5. Where a potential prosecution witness is not named by the state on a witness list pursuant to Crim.R. 16(B)(1)(e), a trial court does not err in permitting such witness to appear as a rebuttal witness, when the defendant objects to such witness's appearance, but fails to request a continuance, recess, or an opportunity to voir dire the witness, and the cross-examination of the witness is vigorous and complete.

6. Where a defendant has been tried for rape and gross sexual imposition, a motion for new trial on the grounds of newly discovered evidence pursuant to Crim.R. 33(A)(6) may be based upon depositions given in a civil action where the civil action is filed after the criminal trial and concerns the same conduct as did the criminal trial, the newly discovered evidence goes to the issues of impeachment and contradiction of evidence previously presented, and the key issues in the criminal case concern consent, force, opportunity and motive.

John T. Corrigan, Pros. Atty., for appellee.

Terrance P. Gravens and William J. Coyne, Cleveland, for appellant.

MATIA, Judge.

Defendant-appellant, Elias Abi-Sarkis, appeals from his convictions for the offenses of rape and gross sexual imposition and the denial of his motions for new trial.

On March 4, 1986, the appellant, a Catholic priest and the pastor of St. Maron's Church, Cleveland, Ohio, was indicted by the Grand Jury of Cuyahoga County for one count of rape in violation of R.C. 2907.02 and one count of gross sexual imposition in violation of R.C. 2907.05. The appellant was arraigned on March 7, 1986, at which time he entered a plea of not guilty to the indictment.

Trial was commenced on July 1, 1986 before the court after the appellant knowingly and intelligently waived his right to a trial by a jury. The evidence adduced at trial essentially involved the testimony of the alleged victim, Rose Sokolowski, pitted against the testimony of the appellant with regard to whether the sexual activities, which occurred on August 29, 1985, involved consenting parties or were the result of the appellant forcing or threatening the victim by force to submit to involuntary sexual conduct.

The State's Case

Prior to the date in question, August 29, 1985, Rose Sokolowski telephoned the appellant to arrange a meeting to discuss her husband's two applications for marriage annulments which were pending in the Catholic Church and other personal problems pertaining to her parents. Appellant made arrangements to discuss these matters with her during her lunch hour two days later. Upon their arrival at the rectory, they proceeded to the upstairs study. Thereafter she asked for something to drink and appellant gave her a glass of wine. Rose Sokolowski claims that the appellant then pulled her across his lap and started to kiss her and fondle her. While holding her wrists appellant stood up and with his other hand unbuckled and unzipped his pants and dropped his pants and shorts. Appellant turned her around so that she was kneeling in front of him with his hand on her head and told her to perform fellatio, which she did. During the course of this incident she asked appellant about his vows. After the incident, they left the rectory, and the appellant then drove her back to her place of employment. Further, she testified that neither before, during, nor after the incident was there any hue and cry.

The Defense

The appellant testified that on August 27, 1985, the alleged victim telephoned the rectory and left a message with the parish secretary. Pursuant to said message, the appellant contacted the alleged victim by telephone whereupon she expressed a need for counseling. An appointment was scheduled for August 29, 1985. The appellant picked up the alleged victim at her place of employment. Upon arriving at the parish rectory the parties proceeded upstairs to an informal living room where the alleged victim's personal problems were discussed. The alleged victim became thirsty and requested a glass of wine; the appellant poured two glasses of wine and, before returning to the alleged victim, telephoned the parish secretary and informed her that "I'm upstairs if you need me for anything." The appellant returned and the alleged victim said: "I bet my husband or one of his men are watching me. Can we go to the study room?" Upon entering the study room, the parties sat on the loveseat and started hugging and kissing. She fondled his penis through his pants, and he fondled her breasts through her clothing. The alleged victim, with the assistance of the appellant, partially pushed the appellant's pants and elastic briefs down and proceeded to perform fellatio upon the appellant. The appellant testified that he never threatened her in any manner, never struck her, and never grabbed or forced her to perform the act of fellatio. His hands were behind his back when the act of fellatio was performed. His pants and elastic briefs were only pushed down far enough to expose his genitalia. He returned her to her place of employment; while returning, she expressed a desire for the appellant to dine at her home and meet her children. Appellant, as did the alleged victim, also testified that there was no evidence of hue and cry.

After a three-day trial, the trial court found the appellant guilty of the offenses of rape and gross sexual imposition on July 3, 1986. On July 23, 1986, the appellant filed his first motion for new trial and on July 29, 1986, the appellant filed a motion for merger of allied offenses pursuant to R.C. 2941.25. Said motions for new trial and merger of allied offenses were overruled by the trial court on August 1, 1986.

On July 30, 1986, the trial court, after receiving benefit of a presentence report, sentenced the appellant to imprisonment at the Chillicothe Correctional Institute for a term of five years to twenty-five years with regard to the offense of rape and a term of imprisonment for a definite term of one year, concurrent with the sentence for rape, with regard to the offense of gross sexual imposition. The appellant immediately appealed the convictions and sentences of the trial court on July 30, 1986.

On November 10, 1986, the appellant filed a motion for leave to file a second motion for new trial and on January 23, 1987, the trial court granted the appellant leave to file a second motion for new trial. The trial court, however, ruled that it was without jurisdiction to entertain the second motion for new trial on the basis that the appellant had perfected his appeal on July 30, 1986.

The appellant, by motion, requested this court to remand the appellant's appeal to the trial court for the sole purpose of permitting the trial court to entertain the motion for new trial. Said motion for remand was granted and the appellant's appeal was remanded for the sole purpose of a hearing. Upon hearing, the trial court again overruled the appellant's second motion for new trial and on June 29, 1987, the appellant filed an appeal from said overruled motion. The appellant's second appeal, with regard to the second motion for new trial, was consolidated with the present appeal for purposes of record, briefing, hearing, and disposition on August 10, 1987.

I

The appellant's first assignment of error is that:

"The trial court erred in overruling the defendant's motion to merge the conviction of rape (R.C. 2907.02) with the conviction of gross sexual imposition (R.C. 2907.05) pursuant to R.C. 2941.25."

The appellant, in his initial assignment of error, argues that the trial court erred in overruling his motion to merge the conviction of rape and gross sexual imposition pursuant to R.C. 2941.25(A).

R.C. 2941.25, which deals with two or more offenses of similar import, states in part 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." (Emphasis added.)

This court, in State v. Davis (Sept. 24, 1981), Cuyahoga App. No. 42610, unreported, at 6-7 , with regard to the application of R.C. 2941.25(A) to the offenses of rape and gross sexual imposition, stated that:

"The issue is whether the acts of gross sexual imposition, rape, and attempted rape were allied offenses of similar import arising from the same conduct. Where a defendant commits multiple, independent acts of forcible sexual activity upon a victim, R.C. 2941.25(B) permits multiple convictions. State v. Shores (Cuya.Cty.Ct.App., June 7, 1979), Unrep. Case No. 38850 (three acts of vaginal intercourse over three hour period support three rape convictions). However, where the defendant's several acts constitute one uninterrupted assaultive episode without a separate...