State v. David Whitfield

• Decision Date: 30 March 1984
• Docket Number: 84-LW-1968,9-283
• Parties: STATE OF OHIO, Plaintiff-Appellee v. DAVID WHITFIELD, Defendant-Appellant. CASE
• Court: Ohio Court of Appeals

STATE OF OHIO, Plaintiff-Appellee v. DAVID WHITFIELD, Defendant-Appellant.

No. 9-283.

84-LW-1968 (11th)

Court of Appeals of Ohio, Eleventh District, Lake County.

March 30, 1984

Criminal Appeal from the Court of Common Pleas Case No. 82 CR 369.

ATTY JOHN E. SHOOP, COUNTY PROSECUTOR, 47 North Park Place, P.O Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).

ATTY R. PAUL LAPLANTE, COUNTY PUBLIC DEFENDER, 270 East Main Street, Painesville, OH 44077 (For Defendant-Appellant).

OPINION

Before HON. ROBERT E. COOK, P.J., HON. ALFRED E. DAHLING, J., HON DONALD R. FORD, J.

COOK P.J.

On May 30, 1982, appellant, David Whitfield, attended a party in Mentor, Ohio. Around midnight, Julie Mason, who was attending the same party, decided to leave the party. While Ms. Mason was waiting for a friend in the front yard, five men, including appellant, circled her, and appellant grabbed her arm and threw her to the ground. Appellant was on top of her in a sitting position between her knees and thighs. While someone laid across her face, her blouse and pants were removed. Her breasts and vagina were fondled and something was inserted into her vagina and her rectum. Upon being released, she saw appellant getting up and pulling up his pants. She put her clothes on and ran to a neighbor's house. The police were called and Ms. Mason was taken to the hospital for medical treatment.

Appellant was indicted on one count of rape, one count of kidnapping, and two counts of gross sexual imposition. After a jury trial, verdicts of guilty were returned as to each of the four counts. Appellant was sentenced on the rape and gross sexual imposition counts.

Appellant has appealed the judgment of the trial court and has filed the following four assignments of error:

"1. The trial court erred in convicting the defendant of two counts of gross sexual imposition in addition to the conviction for rape, in violation of his rights as guaranteed by the Sixth and Fourteenth Amendments.

"2. The trial court erred in failing to instruct the jury on the lesser included offense of sexual battery to the charge of rape and the lesser included offense of abduction to the charge of kidnapping thus denying appellant's right to a fair and impartial trial and denying due process of law.

"3. The trial court erred in overruling the defendant-appellant's motion to suppress identification testimony resulting in a denial of his right to due process as guaranteed by the Fourteenth Amendment.

"4. The trial court erred in refusing to instruct the jury on consent in violation of appellant's constitutional rights as guaranteed by the Sixth and Fourteenth Amendments."

The assigned errors are without merit.

Appellant first contends the court erred in sentencing him on the two counts of gross sexual imposition in addition to the count of rape since they are allied offenses of similar import arising out of the same conduct.

The crimes of gross sexual imposition and rape are allied offenses of similar import since the elements of the two crimes are so similar that the commission of one offense will result in the commission of the other. State v. Earich (1982), 4 Ohio App. 3d 183.

However, in order to obtain the protection of R.C. 2941.25 (A), a defendant must show that the prosecution relied upon the same conduct to support both charges. State v. Donald (1979), 57 Ohio St. 2d 75.

In State v. Logan (1979), 60 Ohio St. 2d 126, the Ohio Supreme Court reiterated the standard set in Donald when it stated at page 129:

"* * * Notwithstanding the fact that a defendant is charged with two or more offenses of the same kind he may be convicted of all of them if he committed them separately, or if he possessed a separate 'animus' as to each."

The court in Logan construed the term "animus" to mean purpose or immediate motive. The animus of a crime must be inferred from surrounding circumstances.

In State v. Barnes (1981), 68 Ohio St. 2d 13, the Ohio Supreme Court held that, where three men first made the victim submit to fellatio and then to vaginal intercourse, each of the defendants had committed two offenses separately with a separate animus as to each.

In the instant cause, the same conduct of appellant did not give rise to the multiple count indictment and conviction. Touching the victim's breasts with his hands and/or mouth, then touching her vaginal area with his hands and/or mouth, and then penetrating her vagina and rectum constituted three separate and distinct offenses violating three different areas of the victim's body. The three counts did not arise from the same conduct of appellant.

The trial court did not err in sentencing on the two counts of gross sexual imposition in addition to the count of rape.

Appellant next contends the lower court erred in not instructing the jury on the lesser included offense of sexual battery to the charge of rape and the lesser included offense of abduction to the charge of kidnapping.

In order to warrant an instruction on a lesser included offense, there must be evidence presented which would support a finding against the state and for the accused on an element of the greater offense which need not be shown to prove the lesser offense. State v. Solomon (1981), 66 Ohio St. 2d 214.

In order for an instruction on sexual battery to have been warranted, there needed to have been evidence presented supporting a finding against the state that appellant did not act "purposely" but rather acted "knowingly" in the commission of the act. There was no evidence presented to support a finding of "knowing coercion"; appellant's defense was based on consent not on any lesser degree of culpability. Since his defense was a complete defense, an instruction on a lesser included offense should be given only if the trier of fact can find for the defendant on some element of the greater offense which is not required to prove the commission of the lesser offense. State v. Wilkens (1980), 64 Ohio St. 2d 382. There was no evidence to support such a finding.

As to appellant's contention the court should have instructed the jury on the lesser included offense of abduction as to the kidnapping charge, again, there was no evidence presented whereby the trier of fa t could have found for appellant on some element of the greater offense which was not required to prove the lesser offense. One element which distinguishes the two offenses is the restraint "to engage in sexual activity" (R.C. 2905.01 (A) (4)). There was no evidence presented to show that the victim was restrained for any reason other than sexual activity.

Appellant next contends the court erred in overruling his motion to suppress Ms. Mason's identification testimony as to appellant.

In Simmons v. United States (1968), 390 U.S. 377, the United States Supreme Court established the "totality of circumstances test" to be used in determining whether a photographic identification procedure violated due process rights of the accused. In Manson v. Brathwaite (1977), 432 U.S. 98, the Supreme Court again addressed the use of photographic identification and stated there must be "a very substantial likelihood of irreparable misidentification in order to merit a reversal."

In the instant cause, Ms. Mason saw appellant several times before she was raped. She also saw him on top of her just prior to being raped and she saw him standing over her after the rape. Although she was unable to identify his photograph in the first photo lineup, that fact alone did not show that there was a "substantial likelihood of misidentification."

Next, appellant contends the court erred in refusing to instruct the jury on "consent".

R.C. 2945.11, pertaining to jury instructions, in pertinent part, provides:

"On charging the jury, the court must state to it all matters of law necessary for the information of the jury in giving its verdict * * *"

In the instant cause, the trial court instructed the jury Michael Slone had been in posession of a knife earlier that evening. Sandy Compton stated that he showed it to her at 6:30 p.m. that day; Robert Vendely stated that he had seen the knife earlier and was actually threatened with the knife on the ride to the Lakeland Inn. This testimony raised the possibility that the appellant had been placed in a life-threatening situation. However, Vendely stated that the appellant took the knife away from Michael Slone at the Lakeland Inn. This testimony was not otherwise contradicted.

In all of the statements made by the appellant after the fight, never did he state that he was threatened with a knife. This includes statements made by the appellant immediately after the fight which were similar to excited utterances; the appellant's informal statements to the Eastlake Police, on the ride to Mentor, and at the Mentor Police Department; and finally, his formal recorded statement to the Mentor Police where explicit details of the fight were revealed. Under this state of the evidence, the evidence was insufficient to raise the question and conclude that the appellant was threatened with a knife. No other evidence was presented to show that the appellant was otherwise in a life-threatening situation; and, a thrashing or beating is insufficient to warrant the use of deadly force. Donald v. State (1901), 12 Ohio C. 124, 142. The evidence was insufficient to raise the question of self-defense and a reasonable mind could not conclude that the appellant had a bona fide belief that he was in danger of death or great bodily harm. Thus, the requested self-defense instruction was properly refused.

The appellant's second assignment of error is without merit.

During closing arguments, counsel for the State twice referred to the appellant's videotaped statement as "testimony". The...