State v. Jordan
| Decision Date | 02 February 2017 |
| Docket Number | No. 103890.,103890. |
| Citation | 2017 Ohio 381,83 N.E.3d 364 |
| Parties | STATE of Ohio, Plaintiff–Appellee v. Charles V. JORDAN, Defendant–Appellant |
| Court | Ohio Court of Appeals |
Edward M. Heindel, 400 Terminal Tower, 50 Public Square, Cleveland, Ohio 44113, FOR APPELLANT.
Michael C. O'Malley, Cuyahoga County Prosecutor, By: Andrew F. Rogalski, Assistant County Prosecutor, Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, FOR APPELLEE.
BEFORE: Laster Mays, J., Keough, A.J., and McCormack, J.
JOURNAL ENTRY AND OPINION
{¶ 1} Defendant-appellant Charles V. Jordan ("Jordan") appeals his convictions and sentence and asks this court to reverse the decision of the jury. We affirm.
{¶ 2} Jordan was found guilty of rape, a first-degree felony, in violation of R.C. 2907.02(A)(2) ; sexual battery, a third-degree felony, in violation of R.C. 2907.03(A)(5) ; kidnapping, a first-degree felony, in violation of R.C. 2905.01(A)(4) ; and kidnapping, a first-degree felony, in violation of R.C. 2905.01(A)(2). In addition, Jordan was found guilty of repeat violent offender specification, notice of prior conviction, and sexual motivation specifications on the kidnapping charges.
{¶ 3} During sentencing, the trial court merged the rape count with the sexual battery count and also merged both kidnapping counts with each other. The trial court then imposed a prison sentence of nine years on each count to be served concurrently and determined that Jordan was a Tier III sex offender. Jordan was advised by the trial court that he would be placed on postrelease control for a mandatory period of five years. As a result, Jordan has filed this timely appeal assigning three errors for our review:
{¶ 4} Jordan was convicted of rape, sexual battery, and two counts of kidnapping against his girlfriend's daughter, C.D. C.D. testified at trial that Jordan began sexually abusing her when she was ten years old. Jordan and C.D.'s mother, J.M., were dating, and Jordan lived with J.M., C.D., and her siblings since C.D. was two years old. C.D. testified that Jordan was like a father to her even though Jordan and J.M. were not married.
{¶ 5} When C.D. turned ten years old, Jordan started touching her on her vagina and buttocks. C.D. testified that Jordan would rub his fingers between her vagina and would grab her butt. Jordan would take C.D. to his room when J.M. was at work and would perform sexual acts on her. Jordan began penetrating C.D. anally with his penis when she was 12 years old causing her to bleed from her rectum. When C.D. told Jordan about the bleeding, Jordan advised C.D. to put a hot rag on it so it would heal. Once C.D. turned 14 years old, Jordan started vaginally penetrating C.D. against her will. When C.D. would refuse or complain, Jordan would punish her by making her clean the entire house by herself.
{¶ 6} C.D. described the first time that Jordan vaginally penetrated her and testified that Jordan laid C.D. on her back, opened her legs, and put his penis into her vagina. He then turned C.D. over onto her stomach and anally penetrated her. Jordan would make C.D. shower each time after he had sex with her so C.D.'s mother would not know what took place. Jordan also informed C.D. that if she ever told anyone about the sexual contact, Jordan would make sure that C.D. and her mother would get into trouble. Jordan would always wait until C.D.'s mother was at work and her siblings were out of the house when he had sexual contact with C.D.{¶ 7} During a period of time, J.M., C.D., and C.D.'s siblings moved out of Jordan's home. During this time, Jordan would pick C.D. up from her home and take her back to his home telling J.M. that he needed C.D. to do chores. Jordan would then make C.D. perform oral sex on him. Shortly thereafter, J.M., C.D., and her siblings moved back in with Jordan, and the abuse continued. C.D. decided to record Jordan admitting to the abuse. On the recording, Jordan asks C.D. if she thought it was wrong that he had sex with her. Jordan tells C.D. to forget about it and move on. Once Jordan and C.D.'s mother broke off their relationship, C.D. told her mother about the abuse. C.D.'s mother called the police the next day.
{¶ 8} After an investigation, Jordan was charged with 35 counts of rape, sexual battery, kidnapping, and intimidation of a crime or witness. The rape and kidnapping charges contained specifications for a notice of prior conviction. The kidnapping charges contained a sexual motivation specification. Jordan expressed that he wished to waive the right to have those specifications heard by the jury, and instead asked that the court hear the evidence pursuant to those specifications.
{¶ 9} Jordan was found guilty of four of the 35 counts, including rape, sexual battery, and kidnapping. He was sentenced to nine years imprisonment.
{¶ 10} When an appellate court reviews a claim of insufficient evidence:
"[T]he 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." State v. Leonard , 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, quoting State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. The weight to be given the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. Tenace , 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386.
State v. Pridgett , 8th Dist. Cuyahoga No. 101823, 2016-Ohio-687, 2016 WL 762671, ¶ 14.
{¶ 11} In the second prong of Jordan's first assignment of error, he argues that the convictions on Counts 1 through 4 for rape, sexual battery, and kidnapping were not supported by sufficient evidence.
The test for sufficiency requires a determination of whether the prosecution met its burden of production at trial. State v. Bowden , 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598 [2009 WL 2186608], ¶ 12. 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. State v. Thompkins , 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541.
{¶ 12} Jordan was convicted of rape, in violation of R.C. 2907.02(A)(2) ; sexual battery, in violation of R.C. 2907.03(A)(5) ; and kidnapping, in violation of R.C. 2905.01(A)(2) and (4). The statutes read as follows:
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.
No person shall engage in sexual conduct with another, not the spouse of the offender, when any of the following apply: The offender is the other person's natural or adoptive parent, or a stepparent, or guardian, custodian, or person in loco parentis of the other person.
No person, by force, threat, or deception, or, in the case of a victim under the age of thirteen or mentally incompetent, by any means, shall remove another from the place where the other person is found or restrain the liberty of the other person, for any of the following purposes: To facilitate the commission of any felony or flight thereafter.
No person, by force, threat, or deception, or, in the case of a victim under the age of thirteen or mentally incompetent, by any means, shall remove another from the place where the other person is found or restrain the liberty of the other person, for any of the following purposes: To engage in sexual activity, as defined in section 2907.01 of the Revised Code, with the victim against the victim's will.
{¶ 13} C.D. testified that Jordan was like a father to her. C.D.'s mother testified that Jordan "took up the father role immediately upon starting their relationship." (Tr. 622.) C.D. lived with Jordan from the time she was two-years old until she was 16 years old, with the exception of a small period of time of six months. C.D. testified that Jordan financially provided for her and her siblings and acted as a father to them. For the purpose of R.C. 2907.03(A)(5), Jordan argues that he was not in loco parentis of C.D. We disagree.
"The term ‘in loco parentis' means ‘charged, factitiously, with a parent's rights, duties, and responsibilities.’ " A person who stands in loco parentis to a child has assumed similar duties to that of a guardian or custodian, only not through legal proceedings. In order to meet the definition of in loco parentis, a person must not only assume a dominant parental role, but must also be relied upon by the child for support. Furthermore, "[t]he key factors of an in loco parentis relationship have been delineated as ‘the intentional assumption of obligations incidental to the parental relationship, especially support and maintenance.’ "
(Citations omitted.) In re J.B. , 8th Dist. Cuyahoga No. 103521, 2016-Ohio-5513, 2016 WL 4497100, ¶ 48, quoting State v. Burgett , 3d Dist. Marion No. 9-09-14, 2009-Ohio-5278, 2009 WL 3165587, ¶ 23.
{¶ 14} C.D. testified that Jordan began sexually touching her when she was ten years old and started penetrating her anally when she turned 12, and vaginally...
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