State v. Tillman

• Decision Date: 07 May 1997
• Docket Number: No. 96CA006427,96CA006427
• Citation: 695 N.E.2d 792,119 Ohio App.3d 449
• Parties: The STATE of Ohio, Appellee, v. TILLMAN, Appellant.
• Court: Ohio Court of Appeals

Page 449

119 Ohio App.3d 449

695 N.E.2d 792

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

No. 96CA006427.

Court of Appeals of Ohio Ninth District, Lorain County.

Decided May 7, 1997.

Robert Corts, Assistant Prosecuting Attorney, Elyria, for appellee.

Cynthia M. Adams, Elyria, for appellant.

REECE, Judge.

Appellant, Kevin Tillman, appeals his conviction of rape in violation of R.C. 2907.02(A)(1)(b). We affirm.

I

On February 14, 1989, the Lorain County Grand Jury indicted Kevin Tillman for the rape of his niece Arnica. At trial, Arnica testified that on her seventh birthday, April 29, 1984, Tillman, under the guise of "playing house," anally sodomized her. On April 3, 1989, Tillman was convicted and sentenced to a period of incarceration of ten to twenty-five years. On April 7, 1989, Tillman moved to vacate the judgment and conviction against him, for arrest of judgment, and for a new trial, arguing that he was only seventeen at the time of the rape and thus had been improperly tried as an adult. This court affirmed Tillman's conviction, holding that Tillman waived the juvenile court's jurisdiction by failing to raise the issue of his age prior to conviction, thereby voluntarily subjecting himself to the jurisdiction of the general division of the court of common pleas. State v. Tillman (1990), 66 Ohio App.3d 464, 585 N.E.2d 550.

Finding our decision in Tillman in conflict with a First District opinion, the Supreme Court addressed the issue in State v. Wilson (1995), 73 Ohio St.3d 40, 652 N.E.2d 196. In Wilson, the Supreme Court held that the juvenile court's subject matter jurisdiction cannot be waived, and, "absent a proper bindover procedure pursuant to R.C. 2151.26, the juvenile court has the exclusive subject matter jurisdiction over any case concerning a child who is alleged to be a delinquent." ¹ 73 Ohio St.3d at 44, 652 N.E.2d at 199. Therefore Wilson, who was seventeen at the time he committed the offense in question, was improperly tried in the general division of the court of common pleas. "Because the general division of the court of common pleas lacked subject matter jurisdiction to convict Wilson, the judgment of conviction against him was void ab initio." Id.

Thereafter, Tillman moved for postconviction relief, arguing that pursuant to Wilson, his rape conviction was a nullity. The trial court granted Tillman's motion and vacated his conviction on October 26, 1995. On that same date, a complaint was filed against Tillman in the Juvenile Division of the Lorain County Court of Common Pleas, alleging that Tillman was a delinquent child by virtue of the April 29, 1984 rape of his niece Arnica. Tillman was bound over to the General Division of the Lorain County Court of Common Pleas. A jury again convicted Tillman of rape. The court sentenced Tillman to a period of incarceration of ten to twenty-five years, with credit for the time served prior to vacation of his original conviction. This appeal followed.

II

Tillman presents eight assignments of error. We have carefully reviewed each of Tillman's arguments and find all lacking in merit. We will address each assignment of error in the order offered.

A

"I. Appellant was denied equal protection under the law and a fair trial by the state's peremptory challenge of two African-American jurors on the prospective panel.

"II. Appellant was denied effective assistance of counsel as guaranteed by Article I, Section 2 of the Ohio Constitution when counsel failed to object in a timely manner to the prosecutor's peremptory challenges on African-American jurors."

Tillman claims that the state excused two African-American jurors based solely on race. He also claims that trial counsel failed to object to the state's racially discriminatory use of its peremptory challenges in a timely fashion, thus rendering trial counsel's assistance ineffective. Tillman asks us to review the actions of the trial court in overruling his objection to the peremptory challenges against the two African-American jurors who were excused, while failing to provide this court with a transcript of the voir dire proceedings.

An appellant has the responsibility of providing the reviewing court with a record of the facts, testimony, and evidentiary matters that are necessary to support the appellant's assignments of error. Volodkevich v. Volodkevich (1989), 48 Ohio App.3d 313, 314, 549 N.E.2d 1237, 1238-1239. In the absence of a complete record, an appellate court must presume regularity in the trial court's proceedings. State v. Roberts (1991), 66 Ohio App.3d 654, 657, 585 N.E.2d 934, 936-937. Upon objection, the trial court stated the following:

"I made some notes during the inquiries, and I found that both those prospective jurors, Kathy Haynes and Rose Card, had had previous experience with a criminal justice system, and they were inquired up [sic] pretty diligently as to that participation. And when they were excused, I could see the responses by the prospective jurors had nothing to do with race, but whether they might have been contaminated with some emotion or feelings concerning what had happened to members of their family that had been involved in the criminal justice system. So I don't see any excuse here or any challenge here based on race. I see it based on prior knowledge or experience in the family way of the criminal justice system as a cause for excuse."

Under the United States Supreme Court's holding in Batson v. Kentucky (1986), 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, in order to raise a prima facie case of purposeful racial discrimination in jury selection based on the use of peremptory challenges, Tillman must show (1) that he belongs to a cognizable racial group, (2) that the prosecution excluded members of his race, and (3) that those facts and other circumstances raise an inference that the prosecutor used peremptory challenges to purposefully exclude members of Tillman's race. State v. Cook (1992), 65 Ohio St.3d 516, 519, 605 N.E.2d 70, 77. "The prosecutor's statements and actions during voir dire may refute this inference." Id. Only if the trial court determines, in its discretion, that such an inference has arisen does the burden then shift to the prosecution to articulate a race-neutral reason for excluding the prospective juror or jurors. Id. Thus, the mere fact that Tillman and the excluded jurors were of the same race does not, as Tillman asserts, constitute a prima facie showing of discrimination requiring the prosecution to state race-neutral reasons for exclusion.

From the transcript before us it appears that the trial court determined, based on the voir dire proceedings, that Tillman had failed to raise an inference of discrimination. Without a complete transcript of the voir dire proceedings so as to review them as a whole, we cannot hold that the court below abused its discretion in concluding that the prosecutor's questions, and the prospective jurors' answers thereto, refuted any inference of racially motivated exclusion of jurors. Because the trial court properly overruled Tillman's Batson objection, trial counsel's failure to raise a timely Batson objection did not prejudice the defense and thus did not rise to the level of ineffective assistance of counsel. Strickland v. Washington (1984), 466 U.S. 668, 693, 104 S.Ct. 2052, 2067-2068, 80 L.Ed.2d 674, 697; State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph three of the syllabus.

Accordingly, Tillman's first and second assignments of error are overruled.

B

"III. The trial court erred as a matter of law by not instructing the jury on the lesser included offense of gross sexual imposition as provided for by Ohio Revised Code Section 2945.74 and Criminal Rule 31(C)."

R.C. 2945.74 provides:

"The jury may find the defendant not guilty of the offense charged, but guilty of an attempt to commit it if such attempt is an offense at law. When the indictment or information charges an offense, including different degrees, or if other offenses are included within the offense charged, the jury may find the defendant not guilty of the degree charged but guilty of an inferior degree thereof or lesser included offense." See, also, Crim.R. 31(C).

Gross sexual imposition is a lesser included offense of rape. State v. Johnson (1988), 36 Ohio St.3d 224, 522 N.E.2d 1082, paragraph one of the syllabus. However, "[a] charge on a lesser included offense is required only where the evidence presented at trial would reasonably support both an acquittal on the crime charged and a conviction upon the lesser included offense." State v. Braxton (1995), 102 Ohio App.3d 28, 43, 656 N.E.2d 970, 980, citing State v. Thomas (1988), 40 Ohio St.3d 213, 533 N.E.2d 286.

Tillman contends that Arnica's testimony during his 1989 rape trial contained evidence that rather than penetration, there was only the "touching of an erogenous zone of another." R.C. 2907.01(B). Specifically, Tillman claims that when asked during the 1989 trial, Arnica testified that she did not feel any pain, she did not feel anal penetration, and she only "felt his pressure on me * * * [o]n my back." Therefore, Tillman argues, he presented evidence of touching rather than penetration. The jury was erroneously denied the opportunity to find that Tillman did not commit an act of penetration and thus rape, but instead improperly touched Arnica and thus committed an act of gross sexual imposition. See R.C. 2907.05(A)(4).

At trial in the present case, Tillman presented Arnica with what he claims was her inconsistent 1989 testimony regarding penetration. During cross-examination, Arnica maintained that in 1989 she testified that penetration occurred. After hearing argument outside the presence of the jury on Tillman's request for an instruction on gross sexual imposition, the court recessed to consider the matter and, it appears from the transcript, review Arnica's 1989 testimony. In denying Tillman's request for the...