State v. Barnes

• Decision Date: 10 January 2014
• Docket Number: Trial Court Case No. 2011-CR-2923,Appellate Case No. 25517
• Court: Ohio Court of Appeals
• Parties: STATE OF OHIO Plaintiff-Appellee v. MICHAEL A. BARNES, JR. Defendant-Appellant

2014 Ohio 47

STATE OF OHIO Plaintiff-Appellee v. MICHAEL A. BARNES, JR. Defendant-Appellant

Appellate Case No. 25517

Trial Court Case No. 2011-CR-2923

COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

Rendered: January 10, 2014

(Criminal Appeal from

Common Pleas Court)

OPINION

MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422

Attorney for Plaintiff-Appellee

CANDI S. RAMBO, Atty. Reg. No. 0076627, 15 West Fourth Street, Suite 100, Dayton, Ohio 45402

Attorney for Defendant-Appellant

WELBAUM, J.

{¶ 1} Defendant-Appellant, Michael A. Barnes, Jr., appeals from his conviction on one count of Gross Sexual Imposition in violation of R.C. 2907.05(A)(4). Barnes raises five assignments of error arguing that: (1) there is insufficient evidence to support his conviction; (2) his conviction is against the manifest weight of the evidence; (3) the trial court gave an incorrect jury instruction on the weight of direct and circumstantial evidence; (4) the State engaged in prosecutorial misconduct during its closing argument; and (5) he was denied effective assistance of counsel.

{¶ 2} We conclude that the victim's trial testimony is sufficient evidence to support Barnes's conviction, and that the conviction is not against the manifest weight of the evidence. We further conclude that the trial court's jury instruction on the weight of direct and circumstantial evidence is a correct statement of law and not prejudicially erroneous. While we conclude that the State made improper comments during its closing argument, Barnes did not object to the comments, and we do not find that they amount to reversible plain error. Finally, we conclude that Barnes was not denied effective assistance of trial counsel, because he failed to demonstrate that he was prejudiced by his counsel's errors. Accordingly, the decision of the trial court will be affirmed.

I. Facts and Course of Proceedings

{¶ 3} On November 16, 2011, Michael A. Barnes, Jr. was indicted on one count of Gross Sexual Imposition in violation of R.C. 2907.05(A)(4), a felony of the third degree. Barnes pled not guilty to the indicted charge, and a jury trial was held on October 30, and 31, 2012. Thefollowing information was elicited at trial.

{¶ 4} In March 2010, Barnes was living with his aunt, D., at her residence in the city of New Lebanon, Montgomery County, Ohio. On March 8, 2010, Barnes interacted with D.'s 11-year-old neighbor, H.S., who lived nearby.

{¶ 5} H.S. testified that on March 8, 2010, she and two other children from the neighborhood went to D.'s house and asked Barnes if he wanted to play outside. Barnes accepted the invitation, and they played outside all day in D.'s backyard. When the other two children went home, H.S. had dinner at D.'s house. After dinner, Barnes asked H.S. if she wanted to watch a movie. H.S. and Barnes then watched a movie together on a couch in D.'s living room. D. and her daughter, L., were upstairs while H.S. and Barnes were watching the movie. L.'s three-year-old daughter, M.L., was sitting on a recliner in the living room.

{¶ 6} During the movie, Barnes and H.S. were sitting on opposite sides of the couch. H.S. eventually decided to lie down, and when she did, Barnes asked her "if [she] would tell." Trans. (Oct. 30, 2012), p. 108, ln. 11. H.S. was scared, so she answered, "no." Id. at 108, ln. 11-12. Barnes then began touching H.S.'s vagina over her sweat pants with his hand, and asked her "if it tickled." Id. at 109, ln. 24-23. H.S. replied, "no." Id. at 110, ln. 1-2. Barnes also rubbed his hand across H.S.'s stomach over her clothes, and tried to remove her sweat pants by putting his fingertips at the waist. When he tried to remove her pants, H.S. pushed Barnes's hand away, moved to the other end of the couch, and told him that she had to go home and take her dogs outside. H.S. then left D.'s house, went home, and told her parents what had happened.

{¶ 7} H.S.'s mother, V., testified that she and H.S.'s father are divorced and that H.S. resides mainly with her father at his residence, which is located near D.'s residence. V. statedthat on the evening of March 8, 2010, she went to the father's residence to drop off H.S.'s younger sister from gymnastics class. When she arrived, H.S. ran out to her crying, shaking, and very scared. H.S. told her that Barnes had tried to put his hand in her pants. She also said that D. was upstairs when it happened, and that M.L. was sleeping. The trial court allowed the hearsay testimony on the record under the excited utterance hearsay exception in Evid.R.803(2).

{¶ 8} D.'s daughter, L., testified that she and her three-year-old daughter, M.L., were visiting D.'s home on March 8, 2010. On the evening of her visit, L. saw both Barnes and H.S. upstairs in her mother's computer room. She recalled that Barnes was sitting down at a computer when H.S. came in and tried to sit on his lap. L. saw Barnes push H.S. off his lap, which caused her to fall to the floor with a "big thunk." Id. at 153, ln. 6. According to L., H.S. got up, ran downstairs, and left D.'s house. On cross-examination, H.S. testified that she did not remember going into D.'s computer room, sitting on Barnes, or being pushed off his lap.

{¶ 9} L. testified that she never saw Barnes watching a movie with H.S., but she did remember them talking about watching a movie. L. also stated that it would have been possible for H.S. and Barnes to have watched a movie either before or after the computer room incident.

{¶ 10} D. testified that on March 8, 2010, she had been doing yard work at her house all day. She recalled seeing H.S. playing in her yard with Barnes and some other children, but she did not see H.S. inside her house that evening. In addition, D. testified that she did not prepare dinner that evening or eat dinner with H.S. While washing dishes, D. heard a "thunk" on the second floor, and then heard someone run downstairs, but she did not see who it was. D. then went upstairs and found Barnes and L. sitting in her computer room. She claimed that this is where Barnes remained until the police came to her house. D. never saw Barnes watching amovie with H.S.

{¶ 11} Officer James Chambers, a patrolman with the Village of New Lebanon, was on duty the evening of March 8, 2010, and he responded to the sexual assault complaint involving H.S. Chambers testified that he discussed the incident with H.S.'s parents and collected the sweat pants worn by H.S. After obtaining a warrant, Chambers also collected a DNA sample from Barnes in order to compare Barnes's DNA with any potential DNA on H.S.'s sweat pants. According to Chambers, the sweat pants and Barnes's DNA sample were delivered to the Miami Valley Regional Crime Lab for testing.

{¶ 12} The State did not enter any DNA evidence at trial. The State's case was based solely on the testimony of H.S., V., and Officer Chambers. Barnes moved for a Crim.R. 29 acquittal on grounds that there was insufficient evidence to convict him of Gross Sexual Imposition. The trial court disagreed, and overruled the motion.

{¶ 13} Barnes also objected to the trial court's jury instruction on direct and circumstantial evidence. The trial court overruled the objection given that the jury instruction was a standard Ohio Jury Instruction. After deliberation, the jury found Barnes guilty of Gross Sexual Imposition in violation of R.C. 2907.05(A)(4). Barnes is now appealing from his conviction.

II. Did the Trial Court Err in Overruling Appellant'sCrim.R. 29 Motion for Acquittal?

{¶ 14} Barnes's First Assignment of Error is as follows:

THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S RULE

29 MOTION.

{¶ 15} Under this assignment of error, Barnes contends that the trial court should have granted his Crim.R. 29 motion for acquittal, because the State presented insufficient evidence to convict him of Gross Sexual Imposition under R.C. 2907.05(A)(4). Specifically, Barnes contends that the State failed to introduce any evidence that he engaged in sexual contact for "the purpose of sexually arousing or gratifying either person." R.C. 2907.01(B).

{¶ 16} Crim.R. 29(A) states that "[t]he court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. * * *."

{¶ 17} "A sufficiency-of-the-evidence argument challenges whether the State has presented adequate evidence on each element of the offense to sustain the verdict as a matter of law." State v. Groom, 2d Dist. Montgomery No. 25094, 2013-Ohio-3377, ¶ 36, citing State v. Hawn, 138 Ohio App.3d 449, 471, 741 N.E.2d 594 (2d Dist.2000). " 'An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. 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.

{¶ 18} In determining whether Barnes's conviction is supported by sufficient evidence,we must first look to the elements of Gross Sexual Imposition as set forth in R.C. 2907.05(A)(4). The statute states as follows:

(A) No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more

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