State v. Metz
| Decision Date | 03 October 2019 |
| Docket Number | 107246,107261,107259,Nos. 107212,s. 107212 |
| Citation | 2019 Ohio 4054,146 N.E.3d 1190 |
| Parties | STATE of Ohio, Plaintiff-Appellee, v. Anthony METZ, et al., Defendants-Appellants. |
| Court | Ohio Court of Appeals |
JOURNAL ENTRY AND OPINION
{¶ 1} Defendants-appellants Anthony Metz ("Metz"), Richard Tenney ("Tenney"), Jaustin Browning ("Browning"), and Anthony Bergant ("Bergant"), appeal their convictions and sentences for crimes associated with a sexual assault.1 For the reasons that follow, we affirm their convictions, but reverse their consecutive sentences and remand for resentencing.
{¶ 2} The defendants were indicted in July 2017. In Count 1, all four defendants were charged with rape (fellatio) by force or threat of force; in Count 2, Tenney, Browning, and Bergant were charged with rape (vaginal intercourse) by force or threat of force; Count 3 charged all four defendants with kidnapping with a sexual motivation specification; Count 4 related solely to Browning, and charged pandering obscenity; and Count 5 related solely to Browning and Bergant, and charged misdemeanor assault.
{¶ 3} All four defendants waived their right to a jury trial, and the matter proceeded to a bench trial. At the close of the state's case, the defendants made a Crim.R. 29 motion for judgment of acquittal, which was denied. The defense called two witnesses to testify. The defendants renewed their Crim.R. 29 motion at the conclusion of the defense's case; it was again denied.
{¶ 4} After its deliberations, the trial court found all four defendants guilty of the charges as indicted. The trial court sentenced Metz to ten years on the rape conviction and five years on the kidnapping conviction to be served consecutive to each other for an aggregate 15-year term. Tenney was sentenced to ten years on each of his three convictions (two counts of rape and one count of kidnapping), to be served consecutive to each other, for an aggregate 30-year term. The trial court sentenced Browning to ten years on each of the two rape counts, ten years on the kidnapping count, 12 months on the pandering obscenity count, and time served on the misdemeanor assault count; the trial court ordered the counts to run consecutive to each other for an aggregate 31-year term. Bergant was sentenced to ten years on each of the two rape counts, ten years on the kidnapping count, and time served on the misdemeanor assault; the trial court ordered the counts to run consecutive to each other for an aggregate 30-year term. The defendants were labeled Tier III sexual offenders.
{¶ 5} The victim in this case was a 20-year-old female, T.B. The incident giving rise to the charges occurred on April 6, 2017. At that time, T.B. had been dating C.T., a 17-year-old boy.
{¶ 6} In the week leading up to the incident T.B. was staying with her friend, D.W., in a house on Indiana Avenue in Cleveland. C.T. and D.W. are cousins and C.T. lived in the house too; the house belonged to C.T. and D.W.'s grandmother. T.B. had been dating C.T. for about a month before the incident.
{¶ 7} The testimony demonstrated that a number of minors and young adults lived in or "hung around" the Indiana Avenue house. The adults in the home tended to occupy the upstairs portion of the house and the young people tended to occupy the downstairs portion. T.B. explained that she was staying there because she and her mother, with whom she lived, had been arguing and she wanted to get out of her mother's house for a few days.2
{¶ 8} C.T. was friends with the defendants. T.B. testified that she previously knew Browning, and that she met Bergant a couple of weeks before the incident when she was "hanging out" at Browning's apartment and Bergant was there. T.B. stated that she only met Tenney and Metz the day of the incident. T.B. believed that Bergant and Tenney were brothers.
{¶ 9} According to T.B.'s testimony, on April 5, the day before the incident, she and C.T. had been fighting after she confronted him about news she heard that he had been cheating on her. Specifically, she learned that he had been engaging in "multiple-partner sex" with some of his friends. T.B. testified C.T. left the house that night, but she stayed.
{¶ 10} The following day, C.T. returned to the house with the four defendants in Browning's vehicle. T.B. was on the porch, the group came onto the porch and C.T. said to T.B., "f— your goddaughter," in an apparent reference to T.B.'s approximate 9-month-old goddaughter. T.B. testified that in response she hit C.T. in his face; he then put her in a chokehold and almost pushed her down the front porch steps.
{¶ 11} T.B. went into the house to get her cell phone, which she had left on a table. However, the phone was not there and several of the people in the house, including C.T. and Browning, were laughing at her. The group eventually went back outside. T.B. testified that she got into Browning's vehicle, "just joking around to make [C.T.] mad." According to T.B., this would make C.T. mad because he had specifically told her that he did not want her around Browning.
{¶ 12} The defendants followed her into the vehicle. Bergant was in the driver's seat, Browning was the front passenger, and T.B. was in the back middle, in between Tenney and Metz. T.B. testified that Bergant started driving — she did not know they were actually going to leave — and she did not have her cell phone or wallet, which were important to her. She repeatedly asked to go back to the Indiana Avenue house, but Bergant would not.
{¶ 13} As they were driving, Browning told T.B. to perform oral sex on Metz. Metz grabbed T.B.'s head and forcibly attempted to make her perform oral sex on him; he was successful for about a minute, but then T.B. was able to stop him. She specifically testified that his penis had been in her mouth. On cross-examination, T.B. admitted that Metz's penis was limp, not erect.
{¶ 14} Following Metz, Tenney then forced T.B. to perform oral sex on him; he was successful and ejaculated in her mouth. The other three defendants were laughing while this occurred. She held the semen in her mouth until they reached their destination, which was Browning's apartment, and she spit it out when she got out of the vehicle. T.B. testified that Browning was recording the sex acts on his cell phone. Browning told her that if she did not do as she was told he would show the video to other people. T.B. testified that during the course of the incident she told the defendants that she did not want to do the sex acts and asked them to take her back to the Indiana Avenue house.
{¶ 15} T.B. testified that when they arrived at Browning's apartment building they all went into Browning's apartment. T.B. testified that she went into the apartment because she was scared and she knew Browning knew where she lived. She was also not familiar with her surroundings. In the apartment, Tenney, Bergant, and Browning entered Browning's bedroom, she followed them into the bedroom, and Browning pushed T.B. on the bed. She testified that Metz did not go into the bedroom. T.B. testified that Tenney, Bergant, and Browning were "smoking a blunt, and they ashed on me," meaning they put the ashes in her hair.
{¶ 16} T.B. testified that Browning then forced her pants off and told her to engage in oral sex on Tenney; he told her that he would not take her home until she did so. Tenney grabbed her head and made her do it. After that, Tenney vaginally raped T.B. When Tenney was finished, Bergant vaginally raped her. Then T.B. was forced to perform oral sex on Bergant. Browning was recording all of this with his cell phone.
{¶ 17} After those assaults, Tenney, Bergant, and Browning left the bedroom and T.B. put her pants back on and went out into the living room where all four defendants were. T.B. testified that upon entering the living room, she "got pushed over on the couch, and [her] face went into the couch, and they pulled [her] pants down," and one of them raped her, but she did not see who it was.
{¶ 18} T.B. testified that after the couch incident, they took her back into the bedroom, where she got pushed on the bed and Bergant vaginally raped her; he ejaculated inside her. Browning then made the other defendants leave and he forced her to perform oral sex on him and then he vaginally raped her, ejaculating inside of her and into her hair. Browning left when he was finished and brought the other defendants back into the bedroom. As T.B. was putting her pants back on, both Browning and Bergant hit her on the side of her face so hard that she lost her hearing for a couple of weeks. Further, one of the hits caused her eye to be swollen.
{¶ 19} T.B. went to the bathroom to try to clean her face, but the defendants told her to come on, they were leaving. They all got back in Browning's vehicle and T.B. asked Browning to take her to the Indiana Avenue house, but he said he would not. Browning drove T.B. to her mother's house, told her to get out, and that if she ever told anyone about what had happened, he would show the video. T.B. testified that she initially would not get out of the car because she wanted to go to the Indiana Avenue house to retrieve her belongings, but Browning told her he would not take her there so she got out. The events described above occurred between 1:00 p.m. and 3:00 p.m.
{¶ 20} T.B.'s cousin, with whom she has a very close relationship, was outside of her mother's house; he lived there as well. She and the cousin walked to the Indiana Avenue house because T.B. wanted to get her phone and wallet. Additionally, she did not want to see her mother or stepfather; her face was red and swollen and she did not want to tell them about the incident. During the walk, which was approximately 20 minutes, T.B. told her cousin that the defendants hit her on her face.
{¶ 21} Upon arriving at the Indiana Avenue house, T.B. also told one of the adults that the...
To continue reading
Request your trial
-
State v. White
... ... quoting State v. Martin, 20 Ohio App.3d 172, 485 ... N.E.2d 717 (1st Dist.1983). Furthermore, in examining the ... manifest weight of the evidence, "the weight to be given ... the evidence and the credibility of the witnesses ... are primarily for the finder of fact." State v ... Metz, 2019-Ohio-4054, 146 N.E.3d 1190, ¶ 70 (8th ... Dist), citing State v. DeHass, 10 Ohio St.2d 230, ... 227 N.E.2d 212 (1967), paragraph one of the syllabus. The ... trier of fact may "'believe or disbelieve any ... witness or accept part of what a witness says and reject the ... rest."' ... ...
-
State v. Boyd
...the record contains evidence to support the findings, consecutive sentences should be upheld." Id. {¶ 29} Boyd relies on State v. Metz, 2019-Ohio-4054, 146 N.E.3d 1190, ¶ 97 (8th Dist.), for the proposition that the trial court must explain its reasons for imposing consecutive sentences. To......
-
State v. Pittman
... ... 486, 124 N.E.2d 148 (1955) ... {¶ ... 54} To the extent that Pittman raises issues with ... his codefendants' credibility in this assignment of ... error, we note that credibility is not a consideration ... for us under a sufficiency-of-the-evidence review. State ... v. Metz, 2019-Ohio-4054, 146 N.E.3d 1190, ¶ 58 (8th ... Dist.), citing State v. Yarbrough, 95 Ohio St.3d ... 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 79. It bears ... repeating that under a sufficiency review, the question is ... whether the evidence, if believed, is sufficient to support ... the ... ...
-
State v. Macklin
...of the evidence review. State v. Pittman, 22 8th Dist. Cuyahoga No. 110272, 2022-Ohio-300, ¶ 54, citing State v. Metz, 2019-Ohio-4054, 146 N.E.3d 1190, ¶ 58 (8th Dist.), citing State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 79. It bears repeating that under a suffi......