State v. Neal

• Decision Date: 06 January 2016
• Docket Number: No. 15CA1.,15CA1.
• Citation: 57 N.E.3d 272
• Parties: STATE of Ohio, Plaintiff–Appellee, v. Terry E. NEAL, Defendant–Appellant.
• Court: Ohio Court of Appeals

57 N.E.3d 272

STATE of Ohio, Plaintiff–Appellee

v.Terry E. NEAL, Defendant–Appellant.

No. 15CA1.

Court of Appeals of Ohio, Fourth District, Hocking County.

Jan. 6, 2016.

Ryan Shepler, Kernen & Shepler, LLC, Logan, OH, for appellant.

Laina R. Fetherolf, Hocking County Prosecuting Attorney, and William L. Archer, Jr., Hocking County Assistant Prosecuting Attorney, Logan, OH, for appellee.

HARSHA

, J.

{¶ 1} After a jury convicted Terry E. Neal of four counts of unlawful sexual conduct with a minor, the court sentenced him to an aggregate 16–year prison sentence. Now Neal asserts that his conviction on Count V of the indictment is not supported by the evidence. We agree. Because the state did not present sufficient evidence that the offense occurred within the time frame alleged in Count V, i.e. “on or about the 10th day of June, 2013,” we reverse that conviction for unlawful sexual conduct with a minor. Because we sustain Neal's first assignment of error, his alternative argument that his trial counsel was ineffective for failing to timely move for judgment of acquittal on this count is moot.

{¶ 2} Next Neal contends that the failure of the state to provide a more specific date to Count XIV of the indictment violated his right to due process. Although that count alleged that Neal committed the offense of unlawful sexual conduct with a minor “sometime between the 22nd day of November, 2012 and the 25th day of December, 2012,” the victim and a witness specified at trial that the offense occurred on Thanksgiving night, November 22, 2012. The lack of specificity in the indictment did not result in a due process violation because Neal denied any sexual conduct whatsoever with the victim, did not raise an alibi defense, and the evidence established the date of the offense within the time period alleged. We reject Neal's second assignment of error.

{¶ 3} Neal also claims that the admission of evidence about the invocation of his right to counsel violated his Fifth Amendment rights, and his trial counsel's failure to object to that evidence constituted ineffective assistance. Neal did not establish plain error under the Fifth Amendment even though it appears that the state's comments and argument were improper. Neal cannot establish a reasonable probability that the outcome of the trial would have been different in light of the overwhelming evidence, including the testimony of the child victim, corroborating witnesses, and the child's DNA found on the underwear that Neal was wearing during two of the offenses upon which he was convicted. Likewise, trial counsel's failure to object did not amount to ineffective assistance due to lack of prejudice. We reject his third assignment of error.

{¶ 4} Next Neal argues that his four convictions for unlawful sexual conduct with a minor were against the manifest weight of the evidence. Our disposition of his first assignment of error renders Neal's manifest-weight argument moot for Count V. However, on his remaining three convictions the state introduced the testimony of the victim, witnesses, and DNA evidence that Neal engaged in oral, anal, and vaginal sex with the minor victim in separate incidents. Based on this evidence the jury properly found the essential elements of the crimes proven beyond a reasonable doubt. Because the jury did not clearly lose its way or create a manifest miscarriage of justice, we reject Neal's fourth assignment of error.

{¶ 5} Next Neal asserts that the trial court erred by failing to merge Counts IX and X of the indictment, which referred to two crimes occurring on the same date. However, the offenses were committed separately and with separate animus—the first offense was anal intercourse that was interrupted when the victim's brother walked in. And the second offense was vaginal intercourse that happened after the passage of a significant amount of time and the occurrence of unrelated conduct. Therefore, the trial court properly convicted and sentenced Neal for both offenses. We reject Neal's fifth assignment of error.

{¶ 6} Next Neal contends that the trial court erred in sentencing him to consecutive terms of incarceration for his convictions. Because the trial court made the requisite findings mandated by R.C. 2929.14(C)(4)

at its sentencing hearing, incorporated its findings into its sentencing entry, and the record supports those findings, we reject Neal's sixth assignment of error.

{¶ 7} Finally, Neal claims that the trial court's order permitting the sheriff to use all necessary restraints was unjustified and violated his right to due process. Because the record contains no evidence that the restraints were visible to the jurors, caused Neal any physical discomfort, or interfered with Neal's ability to testify or communicate with his trial counsel, we reject Neal's seventh assignment of error.

{¶ 8} We sustain Neal's first assignment of error, reverse his conviction for unlawful sexual conduct with a minor as charged in Count V of the indictment, and remand the cause to the trial court to discharge him on that count. We overrule Neal's remaining assignments of error and affirm the remainder of his convictions and sentence.

I. FACTS

{¶ 9} The Hocking County Grand Jury returned an indictment charging Terry E. Neal with five counts of sexual battery, five counts of unlawful sexual conduct with a minor, and five counts of gross sexual imposition. Counts I, II, and III charged Neal with sexual battery, unlawful sexual conduct with a minor, and gross sexual imposition for an incident involving Neal and H.G., a minor, “sometime between the 1st day of January, 2013 and the 1st day of April, 2013.” Counts IV, V, and VI charged Neal with sexual battery, unlawful sexual conduct with a minor, and gross sexual imposition for an incident involving Neal and H.G., a minor, “on or about the 10th day of June, 2013.” Counts VII, VIII, IX, X, XI, and XII charged Neal with two counts each of sexual battery, gross sexual imposition, and unlawful sexual conduct with a minor for incidents involving Neal and H.G., a minor, “on or about the 13th day of June, 2013.” Counts XIII, XIV, and XV charged Neal with sexual battery, unlawful sexual conduct with a minor, and gross sexual imposition “sometime between the 22nd day of November, 2012 and the 25th day of December 2012.” At his arraignment Neal entered a plea of not guilty to the charges. Neal's trial counsel requested a bill of particulars setting forth more specifically the nature of the offenses charged, but the state did not respond.

{¶ 10} Prior to trial Neal filed a motion to permit him to appear in civilian clothing and without restraints at all proceedings. The trial court granted the motion in part but denied it in part. The trial court permitted Neal to appear at all future hearings, including trial, in non-jail clothing. However, the trial court permitted the sheriff to use all necessary restraints, with the sheriff required “to ensure, as much as possible, that the jury does not see [Neal] in restraints.”

{¶ 11} When the case proceeded to a jury trial the evidence established that H.G. was born in September 1999. After living with relatives because her mom had substance-abuse problems and experienced financial difficulties, H.G. moved back with her mother in an apartment on West Second Street in Logan. H.G., her mother, her brother A.G., and her mother's boyfriend, Neal, lived at the apartment. According to H.G., she initially had a crush on Neal and flirted with him. Neal reciprocated by telling her she was beautiful and providing her with cigarettes, alcohol, and marijuana although she was only 12 at the time.

{¶ 12} Sometime between February and April 2012, H.G. came home from school and Neal told her to come into the bedroom he shared with her mother. He then told her to pull down her shorts and bend over and when she did, he inserted his penis in her vagina. Neal then stopped because he thought he heard someone calling down the hallway. When they returned to the living room, Neal sat beside H.G. and advised her that if she told anyone what had happened, he would kill her and then her family. This frightened H.G. because Neal often got drunk and had physical altercations with her family, including frequently beating up her mother. According to one of H.G.'s brothers, G.G., Neal hit their mother about every other day.

{¶ 13} The next incident occurred on Thanksgiving, November 22, 2012 at the West Second Street apartment in Logan after her mom went outside, her brother left, and her friend Chelsie went to the kitchen to get something to eat. H.G. was sitting on the couch when Neal stood up and told her to perform oral sex on him. She complied, but Neal stopped when her mother returned. Chelsie corroborated H.G.'s account, testifying that from the kitchen she witnessed H.G. performing oral sex on Neal in the living room on Thanksgiving 2012.

{¶ 14} According to H.G. the next occurrence happened after they had been evicted from the West Second Street apartment and had moved to a Zanesville Avenue apartment in Logan. She did not recall the date, but she thought it occurred in 2013 and that it was snowing in the beginning that day. On this date her mother had passed out drunk in the dining room and Neal's brother had left the living room to get himself something to eat, leaving Neal alone with H.G. in the living room. Neal told H.G. to pull down her pants and when she did, he stuck his penis in her vagina. When Neal's brother returned, he asked Neal to let him “get some,” but Neal told him to wait his turn. Neal stopped when H.G.'s mother started coughing and woke up in the dining room.

{¶ 15} The final two occurrences happened on June 13, 2013 in the Zanesville Avenue apartment. At that time, H.G., her mother, her brothers G.G. and A.G., an unrelated female, and Neal lived there. Neal and H.G. were in the front room when H.G.'s mother passed out on the couch and the others left for their rooms. Neal came over to the...