State v. Hairston

• Decision Date: 28 July 1997
• Docket Number: No. 70745,70745
• Citation: 700 N.E.2d 930,121 Ohio App.3d 750
• Parties: The STATE of Ohio, Appellee, v. HAIRSTON, Appellant.
• Court: Ohio Court of Appeals

Page 750

121 Ohio App.3d 750

700 N.E.2d 930

The STATE of Ohio, Appellee, v. HAIRSTON, Appellant.

No. 70745.

Court of Appeals of Ohio Eighth District, Cuyahoga County.

Decided July 28, 1997.

Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, and Michael D. Horn, Assistant Prosecuting Attorney, Cleveland, for appellee.

Michael Troy Watson and Reginald N. Maxton, Cleveland, for appellant.

ROCCO, Judge.

Defendant-appellant Charles C. Hairston appeals from his conviction on two counts of corruption of a minor, R.C. 2907.04, contending that his convictions were both against the manifest weight of the evidence and also improper in that they are not lesser included offenses of the ones for which he was originally indicted, viz., rape and gross sexual imposition. This court has examined the record and finds that only one of appellant's convictions must be reversed, since the crime of corruption of a minor is an offense of inferior degree to the charge of rape; however, it is neither a lesser included offense nor an offense of an inferior degree to the crime of gross sexual imposition.

Appellant's convictions stem from a sixty-count indictment filed against him on December 19, 1995. All of the counts related to appellant's alleged activities with his stepdaughter, Kristal Marie Baker, who turned thirteen on October 31, 1992. The activities were alleged to have begun on July 1, 1992 and continued until February 28, 1995, when Kristal was removed from appellant's influence.

Thus, in counts one through five, appellant was charged with rape in violation of R.C. 2907.02(A)(1)(b) ¹; in counts eleven through twenty-five, appellant was charged with rape in violation of R.C. 2907.02(A)(2). ²

In counts six through ten, appellant was charged with felonious sexual penetration in violation of R.C. 2907.12(A)(1)(b) ³; in counts twenty-six through forty, appellant was charged with felonious sexual penetration in violation of R.C. 2907.12(A)(2). ⁴

Finally, in counts forty-one through forty-five, appellant was charged with gross sexual imposition in violation of R.C. 2907.05(A)(4) ⁵; in counts forty-six through sixty, appellant was charged with gross sexual imposition in violation of R.C. 2907.05(A)(1). ⁶

All sixty counts carried an aggravated felony specification for a 1971 conviction for murder.

Appellant entered a plea of not guilty to the indictment and retained counsel to represent him. After five pretrials, appellant signed a jury waiver; appellant's case was thus tried to the bench. Trial commenced on March 19, 1996.

The state presented the testimony of the victim and six others. Some of the state's witnesses had been investigators of the case in various capacities. The others were presented to establish the occurrence of a particular incident that was alleged to have taken place on the morning of December 16, 1994, when the victim stated that appellant drove her to a motel room at a time when she ordinarily would have attended school.

Upon the completion of the state's case, the trial court overruled appellant's motions for acquittal. Thereafter, appellant presented the testimony of nine witnesses and testified on his own behalf. All of the defense witnesses were presented mainly in order to challenge the credibility of the victim. Trial concluded on March 22, 1996.

On March 26, 1996, the trial court announced its decision. The trial court stated that it found the victim's account of appellant's activities not credible except with respect to the incident of December 16, 1994. Therefore, it found appellant not guilty on all counts but counts twenty and forty-six. On those two counts, however, appellant was found guilty not of the offenses charged, viz., rape and gross sexual imposition, but, rather, over appellant's objection, of corruption of a minor in violation of R.C. 2907.04.

The trial court ordered a presentence investigation and report. During this interim, appellant filed a motion for reconsideration of the trial court's decision, which was overruled. Appellant ultimately was sentenced to concurrent terms of incarceration of two to ten years on each count.

Appellant has filed a timely appeal, presenting two assignments of error for review. Appellant's second assignment of error must first be addressed and is set forth as follows:

"The trial court erred in denying the defendant-appellant's motion for reconsideration and/or in the alternative motion to dismiss the conviction against this defendant-appellant for reasons that the conviction, as identified by the court, is not a lesser included offense of either rape, O.R.C. 2907. or gross sexual imposition, O.R.C. 2907.05, as contained in Counts 20 and 46 of the indictment."

Appellant argues that his convictions for corruption of a minor were improper. He asserts that since the offense of corruption of a minor contains an element not found in R.C. 2907.02, rape, and is an offense of a higher degree than R.C. 2907.05, gross sexual imposition, his convictions must be reversed. Appellant is only partially correct.

In count twenty, appellant was indicted on a charge of violation of R.C. 2907.02(A)(2), which states:

"No person shall engage in sexual conduct with another when the offender purposely compels the other person to submit by force or threat of force." (Emphasis added.)

In count forty-six, appellant was indicted on a charge of violation of R.C. 2907.05(A)(1), which states:

"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; * * * when any of the following applies:

"(1) The offender purposely compels the other person * * * to submit by force or threat of force." (Emphasis added.)

R.C. 2907.05(B) provides that the foregoing offense is a felony of the fourth degree.

At trial, in order to prove the element of force contained in both of the charges against appellant, it was the state's theory that appellant used his position as the victim's stepfather to control her behavior. The trial court indicated, however, that in its view, this was insufficient evidence to prove the element of force beyond a reasonable doubt. But, see, State v. Eskridge (1988), 38 Ohio St.3d 56, 526 N.E.2d 304; State v. Riffle (1996), 110 Ohio App.3d 554, 674 N.E.2d 1214; State v. Fowler (1985), 27 Ohio App.3d 149, 27 OBR 182, 500 N.E.2d 390; State v. Kennedy (June 21, 1990), Cuyahoga App. No. 57147, unreported, 1990 WL 84286.

The trial court further indicated that "the weight of the evidence" convinced it that the December 16, 1994 motel room incident had occurred and, thus, appellant was guilty of some offense against his stepdaughter which took place on that date. It, therefore, apparently utilized Crim.R. 31(C) to convict appellant of two counts of corruption of a minor. ⁷

In doing so, the trial court chose to ignore some established precedent which has indicated that corruption of a minor is not a lesser included offense of the crime of rape. In those cases, the courts held that R.C. 2907.04 contains an element not found in R.C. 2907.02, viz., the defendant's knowledge of the victim's age or his recklessness in that regard. See, e.g., State v. Fletchinger (1977), 51 Ohio App.2d 73, 5 O.O.3d 186, 366 N.E.2d 300; State v. Jakobiak (1989), 65 Ohio App.3d 432, 584 N.E.2d 759; State v. Price (1992), 80 Ohio App.3d 35, 608 N.E.2d 818.

R.C. 2907.04, in effect at the times relevant to this case, stated:

"(A) No person who is eighteen years of age or older shall engage in sexual conduct with another, who is not the spouse of the offender, when the offender knows such other person is thirteen years of age or older but less than sixteen years of age, or the offender is reckless in that regard.

"(B) Whoever violates this section is guilty of corruption of a minor, a felony of the third degree. If the offender is less than four years older than the other person, corruption of a minor is a misdemeanor of the first degree." (Emphasis added.) Sub.H.B. No. 44, 143 Ohio Laws, Part II, 2049, 2053; see, also, Am.Sub.H.B. No. 511, 134 Ohio Laws, Part II, 1866, 1909.

In State v. Deem (1988), 40 Ohio St.3d 205, 533 N.E.2d 294, the Supreme Court held that pursuant to Crim.R. 31(C) a trier-of-fact may reach a different verdict than that charged in the indictment only in three situations: (1) the evidence supports a finding of an attempt to commit the crime charged, if the attempt is an offense at law; (2) the evidence supports a finding that defendant committed an offense which is one of an "inferior degree"; or (3) the evidence supports a finding that defendant committed an offense which is a lesser included offense.

As previously stated, most of the cases which have addressed the issue have held that R.C. 2907.04, corruption of a minor, because it contains an "additional" element, is not a lesser included offense to the crime of rape. However, this analysis proceeded no further; thus, the cases have failed to consider whether it is an offense of an "inferior degree" as defined in Deem and its companion case, State v. Thomas (1988), 40 Ohio St.3d 213, 533 N.E.2d 286. See, e.g., State v. Wong (1994), 95 Ohio App.3d 39, 641 N.E.2d 1137; State v. Peek (1996), 110 Ohio App.3d 165, 673 N.E.2d 938.

"[A]n offense is an 'inferior degree' of the indicted offense where its elements are identical to or contained within the indicted offense, except for one or more additional mitigating elements which will generally be presented in the defendant's case." (Emphasis added in part.) State v. Deem, 40 Ohio St.3d at 209, 533 N.E.2d at 298.

In State v. Thomas, supra, the court further explained that in order to determine whether an offense is a lesser included offense or one of inferior degree to the crime charged:

"Th[e] test is not a word game to be performed by rote by matching the words chosen by the legislature to define criminal offenses. Some offenses, such...