State v. Shivers

• Citation: 2018 Ohio 5174
• Decision Date: 20 December 2018
• Docket Number: No. 106601,106601
• Parties: STATE OF OHIO PLAINTIFF-APPELLEE v. DORJAN M. SHIVERS DEFENDANT-APPELLANT
• Court: United States Court of Appeals (Ohio)

2018 Ohio 5174

STATE OF OHIO PLAINTIFF-APPELLEE v. DORJAN M. SHIVERS DEFENDANT-APPELLANT

No. 106601

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

December 20, 2018

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-14-584116-A

BEFORE: McCormack, J., Kilbane, P.J., and Stewart, J.

ATTORNEYS FOR APPELLANT

Myron P. Watson

1144 Rockefeller Bldg.

614 West Superior Ave.

Cleveland, OH 44113

Anthony D. Jordan

614 W. Superior Ave., Suite 1144

Cleveland, OH 44113

ATTORNEYS FOR APPELLEE

Michael C. O'Malley

Cuyahoga County Prosecutor

By: Jeffrey Schnatter

Christine M. Vacha

Assistant County Prosecutors

Justice Center, 9th Floor

1200 Ontario Street

Cleveland, OH 44113

TIM McCORMACK, J.:

{¶1} Defendant-appellant Dorjan M. Shivers appeals from his convictions for rape and kidnapping following two jury trials. For the reasons that follow, we affirm the convictions.

I. Procedural History

{¶2} On April 16, 2014, Shivers was charged in a multiple-count indictment pertaining to acts allegedly committed against two victims, A.T. and A.C., on two separate occasions. The first three counts stem from acts committed against A.T. on May 18, 2013, and they include: Count 1 — rape in violation of R.C. 2907.02(A)(2), with a sexually violent predator specification; Count 2 — rape in violation of R.C. 2907.02(A)(1)(c), with a sexually violentpredator specification; Count 3 — kidnapping in violation of R.C. 2905.01(A)(4), with a sexually violent predator specification and a sexual motivation specification.

{¶3} The remaining four counts pertain to acts committed against A.C. on January 11, 2013, and they include: Count 4 — rape in violation of 2907.02(A)(2) (digital penetration), with a sexually violent predator specification; Count 5 — rape in violation of 2907.02(A)(2) (vaginal intercourse), with a sexually violent predator specification; Count 6 — gross sexual imposition in violation of 2907.05(A)(1), with a sexually violent predator specification; and Count 7 — kidnapping in violation of 2905.01(A)(4), with a sexually violent predator specification and a sexual motivation specification.

{¶4} Shivers filed a motion to sever the counts in the indictment as they pertained to each alleged victim. The court denied his motion, and the matter proceeded to trial. On March 29, 2017, the jury returned the following verdict: not guilty of Count 1 (rape), Count 3 (kidnapping), Count 6 (gross sexual imposition), and guilty of Count 2 (rape). The jury was hung on Counts 4, 5, and 7, all of which pertain to acts allegedly committed against A.C. The court then declared a mistrial on Counts 4, 5, and 7 and scheduled a new trial on those remaining counts. The state agreed to dismiss the sexually violent predator specification on Count 2.

{¶5} On October 2, 2017, Shivers waived his right to a jury trial on the sexually violent predator specifications (on Counts 4, 5, and 7) and the sexual motivation specification (on Count 7). On October 12, 2017, the jury found Shivers guilty of all remaining counts: rape (Counts 4 and 5) and kidnapping (Count 7). The court found Shivers not guilty of the sexually violent predator specifications and guilty of the sexual motivation specification. At sentencing, the court merged the kidnapping conviction in Count 7 with the rape conviction in Count 4. Thecourt then imposed a prison sentence of five years each on Counts 2, 4, and 5, to be served concurrently.

II. Assignments of Error

{¶6} Shivers now appeals his convictions, raising six assignments of error. For judicial clarity and ease of discussion, we address the following errors out of order where appropriate:

I. The prosecutor engaged in prosecutorial misconduct by impermissibly commenting that the appellant's time to say "no" had passed, which was an improper comment on his right not to testify, and was irrelevant to any factual issues in the case.

II. The trial court erred when it denied the [appellant's] motion for mistrial when the state of Ohio failed to timely provide a written statement of A.C., which was a discovery violation, and denied [the appellant] due process of law.

III. The trial court erred when it failed to grant [the appellant's] motion for separate trials, and this failure denied him a fair trial, thus violating his right of due process.

IV. The trial court erred when it denied the appellant's motion for judgment of acquittal for rape (substantial impairment) when the state's evidence was insufficient as a matter of law.

V. The trial court erred when it accepted the verdicts of the jury although one of the jurors did not affirm her verdict and there was no unequivocal assent to the verdict.

VI. The trial court erred when it admitted over the defense's objections to the admission of the former testimony of A.C. in the first trial, in violation of Evid.R. 804, without a showing of unavailability.

III. Evidence at Trial

{¶7} The state presented the following witnesses: (1) alleged victim, A.C.; (2) Mayfield Heights Police Corporal Joseph Leskovec; (3) Mayfield Heights police detective Sergeant Donald Oberdoester; (4) alleged victim, A.T.; (6) Euclid police officer David Maslyk;(7) A.T.'s mother, E.T. ("Mother"); (8) A.T.'s friend, Tyler Hawkins; and (9) A.T.'s friend, Keeada Johnson. The defense presented one witness: A.C.'s former boyfriend, Gerald Reid.

A.C.

{¶8} From October 2012 to January 2013, A.C. worked as a server at Pizza Hut in Cleveland. A.C. testified that during the time she worked at Pizza Hut, she became friends with the defendant, Dorjan Shivers, who was a supervisor at Pizza Hut. A.C. stated that she and Shivers were not romantically involved. During this time, A.C. was dating Gerald Reid, who was in the military and stationed in New Jersey.

{¶9} On January 1, 2013, Pizza Hut terminated A.C., but she and Shivers remained in touch through text messaging and "casual conversation." At some point in January, Shivers and A.C. decided to "kickback" and "hang out with other people and just relax." A.C. described a "kickback" as "a lot of people coming over, or several people coming over, food, maybe watching [television], very relaxed environment." She stated that it was Shivers's idea to go to his apartment in Mayfield Heights.

{¶10} Shivers picked A.C. up the evening of January 11 and drove to his apartment. When they arrived, there was only one other person in Shivers's apartment, Shivers's cousin. Shivers poured A.C. a blue alcoholic beverage, introduced A.C. to his cousin, and then led A.C. to his bedroom. A.C. testified that she was "kind of shocked" that there was no one else in the apartment.

{¶11} Once in the bedroom, they both sat on the edge of the bed, with her feet hanging off to the side, and there was some space between the two of them. A.C. testified that after approximately 15 minutes of watching television and conversing, Shivers began touching her breast and attempted to hug her. She told him to stop, and she pushed his arm away from herbody. A.C. stated that he stopped briefly and then began to "play wrestle," explaining that Shivers was hugging her and trying to get her to lie back on the bed. A.C. told Shivers, "No, no, stop, get up," and she sat up. After briefly stopping, once again, Shivers "bear hug[ged]" A.C. and wrestled her so that her back was on the bed. At this point, A.C. told Shivers that she had a boyfriend and she told him to stop. A.C. testified that she was "very firm" in telling Shivers to stop multiple times and she "definitely did communicate * * * to him that [she] did not want to have any kind of sexual activity with him."

{¶12} After A.C. told Shivers about her boyfriend, Shivers briefly stopped his advances, and then for the third time, Shivers pulled her down to the bed. A.C. stated that she resisted, but because he was stronger than A.C., he continued to pull her down. She began to "scoot" away from him, toward the wall, telling him "no." At this point, Shivers got on top of A.C. and put his hands in her pants and then in her underwear. She continued to say "no" and tried to remove his hand while scooting toward the wall. A.C. stated that rather than stopping, Shivers continued his behavior "more forcefully." She explained that he fondled her vaginal area and then penetrated her with his finger. A.C. testified that as Shivers became more aggressive, she became "a little scared" and "shock[ed]." She stated that she began to resist less because she "started to go a little numb,""emotionally * * * withdraw[n]."

{¶13} A.C. then testified as follows:

He started unbuttoning his pants and he tried to pull my pants off and I pulled my pants back on, and then he tried to take them off again.

* * *

I kept repeating "I can't do this."

* * *After I pulled my pants back up, he pull[ed] my pants back down again, this time with my underwear, and he pull[ed] his pants off as well, and I'm still a little shocked at this point about what's going on and [I'm] scared.

* * *

He inserted the tip of his penis into my vagina, and then he paused for a few seconds and he reach[ed] over to the small little desk and he grab[bed] a condom and he put[] it on and he continues to have sex with me. * * * He put his penis inside of [my vagina] and repeatedly put it inside of me.

{¶14} When Shivers finished, he went into the bathroom. A.C. looked for her cell phone. Finding it on the floor, she crouched down and called her boyfriend. A.C. stated that she was crying when she told her boyfriend "everything." When she heard the bathroom door open, she hung up the phone. Shivers then drove A.C. home.

{¶15} When A.C. arrived home, she called her boyfriend again to explain what happened. She testified that she was crying and she was "a little hysterical." She took a shower before she went to bed. The next day, A.C. telephoned a friend, Renee, and told her what happened. A.C. testified that Renee offered to drive her to the police station, and A.C. accepted her offer. Two days...