[Cite as State v. Deck , 2021-Ohio-3145.] IN THE COURT OF APPEALS

TWELFTH APPELLATE D ISTRICT OF OHIO

WARREN COUNTY

STATE OF OHIO, Appellee,

- vs -

JAMES N. DECK, Appellant. :

:

:

:

:

: CASE NO. CA2020-10-066

O P I N I O N

9/13/2021

CRIMINAL APPEAL FROM WARREN CO UNTY COURT OF COMMON PLEAS Case No. 20CR36468

David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, 520 Justice Drive, Lebanon, Ohio 45036, for appellee Timothy J. McKenna, 125 East Court Street, Suite 950, Cincinnat i, Ohio, 45202, for appellant

HENDRICKSON, J. {¶ 1} Appellant, James Deck, appeals a decision of the Warren County Court of Common Pleas finding him guilty of rape and sentencing him to l ife without parole in prison. {¶ 2} A grand jury indicted Deck for one count of rape of a child und er the age of 13 in violation of R.C.2907.02(A)(1)(b). The indictment furthe r stated that the victim was under the age of 10 at the time of the offense and that Deck pu rposely compelled the victim to submit by force or threat of force. Deck waived his right t o a jury trial and the caseWarren CA2020-10-066

- 2 - proceeded to a bench trial. {¶ 3} At trial, the victim testified that he lived with Deck when he was 8 or 9 years

old. The victim described an incident in which Deck instructed him to go into the bedroom and anally raped him. The victim did not tell anyone about the rape until several years later. In his defense, Deck testified that the incident never happened and, through testimony and cross-examination, advanced a theory that the victim made up th e incident to create a bond

with a new friend. {¶ 4} The trial court found Deck guilty as charged. At sentencing, t he court indicated that by statute, it had no other sentencing option an d sentenced Deck to life in prison without parole. Deck now appeals his conviction and sen tence, raising four assignments of error for our review. His first and second assi gnments of error challenge the sufficiency and manifest w eight of the evi dence an d will be discussed together. 1 {¶ 5} THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANTAPPELLANT AS THERE WAS INSUFFICIENT EVIDENCE TO CONVICT. {¶ 6} THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANTAPPELLANT BECAUSE THE VERDICT WAS AGAINST THE MANIFEST WEIGHT O F

THE EVIDENCE. {¶ 7} Whether the evidence presented at trial is legally sufficient t o sustain a verdict is a question of law. State v. Thompkins , 78 Ohio St.3d 380, 386, 1997-Ohio 52 (1997);

State v. Grinstead , 194 Ohio App.3d 755, 2011-Ohio-3018, ¶ 10, (12th Dist.). Whe n reviewing the sufficiency of the evidence underlying a criminal conviction, an appellate court

examines the evidence in order to determine whether such eviden ce, if believed, would

1. We note that appellant's brief presents the first and secon d assignments of error and numbers them as such, argues them together, then presents third and fourth assi gnments of error which the brief numbers as second and third assignments of error. As there are four enume rated assignments of error in the brief, we have designated them as such in this opinion.Warren CA2020-10-066

- 3 - convince the average mind of the defendant's guilt beyond a rea sonable doubt. State v.

Paul , 12th Dist. Fayette No. CA2011-10-026, 2012-Ohio-3205, ¶ 9. T herefore, "[t]he relevant inquiry is whether, after viewing the evidence in a li ght most favorable to the prosecution, any rational trier of fact could have found the es sential elements of the crime proven beyond a reasonable doubt." State v. Jenks , 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. {¶ 8} A manifest weight of the evidence challenge, on the other hand, examines the "inclination of the greater amount of credible evidence, offere d at a trial, to support one side

of the issue rather than the other." State v. Barnett , 12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, ¶ 14. To determine whether a conviction is aga inst the manifest weight of the evidence, the reviewing court must look at the entire re cord, weigh the evidence and all reasonable inferences, consider the credibility of the witn esses, and determine whether in resolving the conflicts in the evidence, the trier of fact c learly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial

ordered. State v. Graham , 12th Dist. Warren No. CA2008-07-095, 2009-Ohio-2814, ¶ 66. "While appellate review includes the responsibility to consider the credibility of witnesses and weight given to the evidence, 'these issues are primarily m atters for the trier of fact to

decide.'" State v. Barnes , 12th Dist. Brown No. CA2010-06-009, 2011-Ohio-5226, ¶ 81, quoting State v. Walker , 12th Dist. Butler No. CA2006-04-085, 2007-Ohio-911, ¶ 26. {¶ 9} An appellate court, therefore, will overturn a conviction due t o the manifest weight of the evidence only in extraordinary circumstances when the evidence presented at trial weighs heavily in favor of acquittal. Id. , citing Thompkins , 78 Ohio St.3d at 387. Furthermore, although the legal concepts of sufficiency of the evidence and weight of the evidence are both quantitatively and qualitatively different, " [a] determination that a conviction is supported by the manifest weight of the evidence will also be dispositive of theWarren CA2020-10-066

- 4 - issue of sufficiency." State v. Jones , 12th Dist. Butler No. CA2012-03-049, 2013-Ohio-150, ¶ 19. {¶ 10} As discussed above, Deck was charged with rape in violation of R.C. 2907.02(A)(1)(b). This section provides "No person shall engag e in sexual conduct with another * * * when * * * the other person is less than thirteen years of age, whether or not the offender knows the age of the other person." The indictmen t also stated that Deck "purposely compelled the victim to submit by force or threat of force" and that the victim was less than 10 years old at the time of the offense. {¶ 11} At trial, the victim testified that in 2015 when he was 8 or 9 years old, he, his mother, and his two sisters lived with Deck. The victim testif ied that his mother spent most of the time sleeping in her bed and Deck was responsible for di sciplining the children. According to the victim, Deck acted like he was the children's dad and Deck would punish the victim when he did something wrong. As punishment, Deck wo uld hit the victim with a belt, a studded belt or a wooden cane. The victim testified th at one night, Deck told him to go to his room and he followed the command because he was afrai d of Deck and what

Deck would do if he didn't listen. {¶ 12} Deck followed the victim into the room and told him to take off his clothes. Deck then either told the victim to get on the floor on his han ds and knees or pushed him into that position. The victim testified that Deck then got on his knees, grabbed the victim's lower hips, put his penis into the victim's "butt" and went bac k and forth with his hips. The victim stated that it hurt, and he cried and told Deck to stop, but Deck shrugged it off. The

victim stated the incident lasted ten minutes at most and then Deck got up, put on his clothes and told the victim not to tell anyone. The victim testified t hat he had a burning sensation in his "butt" and it hurt, and he went to sleep crying. He ind icated that he didn't tell anyone because he was scared and his mother always took Deck's side.Warren CA2020-10-066

- 5 - {¶ 13} About three weeks later, the victim was hospitalized because of aggressive behavior, wetting the bed and alleged incidents of smearing fec es on the wall. A children's services caseworker testified that during the hospitalization, bruising on the victim's body was noted and the children's services agency became involved. After an investigation, abuse and neglect was substantiated. All the children were rem oved from the home and the victim's paternal grandmother was granted custody. The cas e was eventually closed in 2017. The mother later regained custody of the children and th e family moved to another

state. {¶ 14} After the move, the victim was talking to a neighbor, who indic ated that she had been separated from her mother, and the victim indicated th at he had been separated

from his mother for a while as well. The two discussed how the y had both been abused and how they coped with the abuse and separation from their mot hers. The neighbor asked the victim if he had ever been sexually abused and the victim r esponded that he had. The

victim's sister overheard the discussion and told the children' s mother. The incident was then reported to the police and Deck was arrested and charged w ith rape. {¶ 15} In his defense, Deck testified that the incident never happened and that he was blindsided by the allegations. He described several issues with the victim's story, including the fact that the children and their mother had to ha ve been in the small apartment at the time and noises could be heard throughout because of ech oes. On crossexamination, Deck's attorney questioned the victim about why he did not tell anyone, even after he felt safe. The defense also presented testimony from the children's services worker and verified that although the victim described physical abuse, he did not report any sexual abuse during the hospitalization or children's services investi gation. {¶ 16} Deck now argues that the evidence to support his conviction for rape was insufficient and against the manifest weight of the evidence fo r several reasons. First, heWarren CA2020-10-066

- 6 - argues that there was no showing of force or a threat of force. {¶ 17} The element of "force" is defined in R.C. 2901.01(A) as "any vi olence, compulsion, or constraint physically exerted by any means upon or against a person or thing." However, the definition of "force" changes when the vi ctim is a child, to account for the fact that adults can compel children to submit to sexual co nduct by means of psychological coercion or use of authority over the child. State v. Grant , 12th Dist. Brown Nos. CA2014-03-005, and CA2014-03-006, 2015-Ohio-723, ¶ 20-23; State v. Eskridge , 38 Ohio St.3d 56 (1988); State v. Dye , 82 Ohio St.3d 323, 1998 Ohio 234 (1998). "The force and violence necessary to commit the crime of rape depends upon the age, size and strength of the parties and their relation to each other." Eskridge at paragraph one of the syllabus. {¶ 18} When a child is a victim of a rape offense, the "force" require ment "need not be overt and physically brutal, but can be subtle and psycholog ical." Id. at 58-59; State v.

Grant , 12th Dist. Brown Nos. CA2014-03-005, CA2014-03-006, 2015-Ohio -723, ¶ 20-23;

State v. Rankin , 12th Dist. Clinton No. CA2004-06-015, 2005-Ohio-6165, ¶ 47. "A child's will can be overcome by fear and duress when an important figur e of authority tells the child to do something, and commands the child not to tell anyone abou t it." Grant at ¶ 23. "When the state proves that the child's will was overcome by fear or duress, the forcible element of rape is established." Id

. {¶ 19} In this case, the victim testified that Deck was responsible fo r disciplining him, acted like he was the victim's father and would punish him when he did something wrong. The victim described the type of physical punishment inflicted by Deck and stated that on the night of the rape, he followed Deck's commands because he w as afraid of Deck and

what Deck would do if he didn't listen. This evidence establis hes the force element. {¶ 20} In these assignments of error, De ck also presents several factu al arguments,Warren CA2020-10-066

- 7 - including an argument that the victim's story lacked specificit y regarding the time of the offense and was not corroborated in any way. He also argues th e allegation came out after five years, and only when talking to a girl, and the situation "snowballed" and then the victim couldn't retract it. He further argues there were no statement s to professionals or family, no physical evidence, it is impossible that no one heard the of fense taking place, and the victim gave inconsistent descriptions. {¶ 21} However, inconsistencies in the evidence alone do not mean that a decision is against the manifest weight of the evidence. State v. McMullen, Butler App. No. CA2005- 09-414, 2006 Ohio 4557, ¶ 31. When there is a conflict in the testimony of witnesses, it is for the trier of fact to determine the weight and credibility t o be given to such evidence.

State v. Marcum , 12th Dist. Butler No. CA2017-05-057, 2018-Ohio-1009, ¶ 31, ci ting State

v. DeHass , 10 Ohio St.2d 230 (1967), paragraph one of the syllabus. It is within the province of the trier of fact to consider any inconsistencies in the tes timony and resolve them accordingly, believing all, part, or none of each witness's tes timony." State v. Robinson , 12th Dist. Butler No. CA2018-08-163, 2019-Ohio-3144, ¶ 29; State v. Lark , 12th Dist. Fayette No. CA2018-03-004, 2018-Ohio-4940, ¶ 29. {¶ 22} The trial court heard all the testimony, including all of the i nconsistencies and issues Deck now raises. As the trier of fact, the court resolv ed these inconsistencies and found Deck was guilty of rape. After reviewing the record and the issues involved in this assignment of error, we find the court's determination was not against the manifest weight of the evidence, and was therefore supported by sufficient evid ence. Deck's first and second assignments of error are overruled. {¶ 23} THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL AS GUARANTEED BY SECTION 10, ARTICLE 1 OF THE OHIO

CONSTITUTION AND THE SIXTH AND FOURTEENTH AMENDMENTS.Warren CA2020-10-066

- 8 - {¶ 24} In his third assignment of error, Deck contends that trial coun sel was ineffective for failing to engage an independent expert to esta blish the lack of reliability in

late-disclosed sexual abuse. {¶ 25} To prevail on an ineffective assistance of counsel claim, an ap pellant must establish that (1) his trial counsel's performance was deficien t and (2) he was prejudiced by the deficient performance. Strickland v. Washington , 466 U.S. 668, 687-688, 104 S.Ct. 2052 (1984). Trial c ounsel's performance will not be deemed de ficient unless it "fell below an objective standard of reasonableness." Id. at 688. To show prejudice, the appellant must prove there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. " Id. at 694. An appellant's failure to satisfy one prong of the Strickland test negates a court's need to consider the

other. State v. Madrigal , 87 Ohio St. 3d 378, 389, 2000-Ohio-448 (2000). {¶ 26} It is well established that the failure to call an expert and i nstead rely on crossexamination does not constitute ineffective assistance of couns el. State v. Hunter , 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 66; State v. Fuell , 12th Dist. Clermont No. CA2020-02- 008, 2021-Ohio-1627, ¶ 53. {¶ 27} Deck argues that an expert was necessary to establish that the victim's disclosure several years after the event was unreliable. He ar gues a defense expert "could have discredited the state's theory that 'victims of sexual abu se don't tell until they tell'" and "could have cast doubt on the veracity, or at least the reliabi lity" of the delayed allegations. {¶ 28} However, Deck's argument that a defense expert was necessary to impeach the victim's testimony is purely speculative. He fails to ident ify the expert witness who should have been called or what the expert would have said. State v. Hunter , 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 66. Moreover, this court has no wa y of knowing exactly how an expert would testify given the facts of this case or whether an expert would haveWarren CA2020-10-066

- 9 - presented favorable testimony for Deck. Without this knowledge , there is no way to determine if the expert testimony would be helpful to Deck's de fense. In addition, there is also the possibility that the testimony, or cross-examination o f an expert on delayed disclosure of sexual abuse, could have been damaging to Deck's defense. Accordingly, we find trial counsel was not ineffective for fai ling to call an expert witness on the unreliability of delayed disclosure of sexual ab use. Deck's third assignment

of error is overruled. {¶ 29} THE TRIAL COURT INCORRECTLY APPLIED THE RAPE SENTENCING

SCHEME. {¶ 30} In his final assignment of error, Deck argues that the trial co urt erred in sentencing him to life in prison without the possibility of par ole. He contends that the trial court used the wrong statutory provision in sentencing him, det ermining that it did not have discretion in the sentence imposed. {¶ 31} An appellate court reviews an imposed sentence under the standa rd of review set forth in R.C. 2953.08(G)(2), w hich governs all felony sente nces. State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1; State v. Crawford , 12th Dist. Clermont No. CA2012- 12-088, 2013-Ohio-3315, ¶ 6. Pursuant to that statute, an appe llate court does not review the sentencing court's decision for an abuse of discretion. Marcum at ¶ 10. Rather, R.C. 2953.08(G)(2) compels an appellate court to modify or vacate a sentence only if the appellate court finds by clear and convincing evidence that "th e record does not support the trial court's findings under relevant statutes or that the sent ence is otherwise contrary to

law." Id. at ¶ 1. A sentence is not clearly and convincingly contrary t o law where the trial court "considers the principles and purposes of R.C. 2929.11, a s well as the factors listed in R.C. 2929.12, properly imposes postrelease control, and sent ences the defendant within the permissible statutory range." State v. Ahlers , 12th Dist. Butler No. CA2015-06-100,Warren CA2020-10-066

- 10 - 2016-Ohio-2890, ¶ 8; State v. Julious , 12th Dist. Butler No. CA2015-12-224, 2016-Ohio4822, ¶ 8. Thus, this court may "increase, reduce, or otherwis e modify a sentence only when it clearly and convincingly finds that the sentence is (1) contrary to law or (2) unsupported by the record." State v. Brandenburg , 146 Ohio St.3d 221, 2016-Ohio-2970, ¶ 1, citing Marcum at ¶ 7. {¶ 32} At sentencing, the trial court stated, "Mr. Deck, by statute , the Court has no discretion in your sentence in this case." (Emphasis added.) The court's sentencing entry states that the sentence is pursuant to R.C. 2971.03(A)(2) whic h mandates a sentence of life without parole when, in addition to other requirements, th e victim is under the age of ten

and force was used. {¶ 33} R.C. 2971.03(A)(2) addresses sentencing pursuant to a sexually violent predator ("SVP") specification. Deck argues this section does not apply because the court did not specifically determine that the victim was under the ag e of 10 and because the court did not specifically find he was a sexually violent predator. {¶ 34} After the bench trial, the court stated: Based on the evidence that's been presented, the Court finds that the state has proven beyond a reasonable doubt that [Deck] did engage in sexual conduct with [the victim], who was not his spouse, and that [the victim] was less than 13 years of age at the time of the offense. The court further finds that [Deck] purposely compelled [the victim] to submit by force or threat o f force. Therefore, as to count 1, the Court finds the defendant guilty as he stands charged in the indictment. {¶ 35} Although the determination that the victim was under the age of ten was not stated specifically on the record, as discussed above, the cour t found Deck guilty of rape "as charged in the indictment." The indictment specifically st ated that the victim was under the age of 10. Although stating the finding specifically on th e record after trial would have been preferable, this was a bench trial and the court and parti es were all aware of theWarren CA2020-10-066

- 11 - charges in the indictment. See State v. Eafford , 132 Ohio St.3d 159, 2012-Ohio-2224 (jury verdict form stating defendant was guilty "as charged in the in dictment" was sufficient to establish aggravating element). {¶ 36} Moreover, in the judgment entry of conviction, the court specif ically stated a finding that the victim was under the age of ten. Given that t his was a bench trial, the judgment entry was the functional equivalent of a jury form. S ee State v. Sims , 8th Dist. Cuyahoga No. 89261, 2007-Ohio-6821; see also State v. Sims , 1st Dist. Hamilton Nos. C150252, and C-150253, 2015-Ohio-4996 (safeguards necessary for a jury trial not necessary in a bench trial where court is aware of charge in th e indictment). Therefore,

there was a sufficient determination that the victim was under the age of 10 based on the court's statement that it found Deck guilty "as charged in the indictment" and the specific finding in the judgment entry. {¶ 37} However, although the court's determination that the victim was under the age of ten was sufficient, the SVP statute is inapplicable in this case. First, R.C. 2971.03(A) by its terms only applies to an offender who was convicted of a se xually violent predator specification included in the indictment. State v. Bowers , Hamilton No. C-150024, 2016- Ohio-904, ¶ 41. No SVP specification was included in the indic tment in this case. In addition, the SVP statute requires not only a determination tha t the offender has been convicted of a sexually violent offense, but also a determinati on that the defendant "is likely to engage in the future in one or more sexually violent offense s." R.C. 2971.01(H)(1). The

trial court did not make this determination. Factors for makin g this determination are found in R.C. 2971.01(H)(2), none of which appear to apply in this ca se. 2

2 The factors include multiple sexually oriented offenses, sexu ally deviant behavior, chronic offenses with sexual motivation, torture/ritualistic acts in offense, or phys ical harm to the degree the victim's life was in jeopardy.Warren CA2020-10-066

- 12 - {¶ 38} R.C. 2907.02(B) discusses sentencing for a conviction of rape. It provides that a defendant convicted of rape of a child under the age of 13 in violation of R.C. 2907.02(A)(1)(b) shall be sentenced pursuant to the standards i n R.C. 2971.03. In addition, this section provides a discretionary option for sentencing a d efendant to life without parole under certain circumstances, such as when the victim is under t he age of ten years old. This option is clearly discretionary, as the statute states "th e court may impose" life without parole. {¶ 39} If a court does not choose the discretionary option of life wit hout parole pursuant to R.C. 2907.02(B), and the SVP section does not apply , R.C. 2971.03(B)(1) provides three sentencing options for a conviction of rape of a child under the age of 13.

State v. Bowers , 163 Ohio St.3d 28, 2020-Ohio-5167, ¶ 4-5; State v. Johnson , 8th Dist. Cuyahoga No. 109127, 2020-Ohio-2947, ¶ 10-12. Without addition al findings, the sentence is ten years to life. R.C. 2971.03(B)(1)(a). If the victim wa s under the age of ten, the sentence is 15 years to life. R.C. 2971.03(B)(1)(b). If force was used in the rape offense, if the offender has a previous conviction or if there was serio us physical harm, the sentence is 25 years to life. R.C. 2971.03(B)(1)(c). {¶ 40} Therefore, the trial court erred in sentencing Deck pursuant to a Revised Code section that did not apply and that mandated a term of life wit hout parole. Although life without parole is a sentencing option pursuant to R.C. 2907.02( B), this section is discretionary and the court erred when it stated that by statut e, it had no choice other than to sentence Deck to life in prison without parole. {¶ 41} Sentencing errors based on mistaken beliefs by a trial court th at it was required or could not consider specific sentences have regularl y been reversed. See e.g.

State v. Sutton , 2008-Ohio-5839 (although consecutive sentence authorized, cou rt mistakenly believed they were required and did not consider the issue); State v. Damron ,Warren CA2020-10-066

- 13 - 129 Ohio St.3d 86, 2011-Ohio-2268 (even though sentence fell wi thin statutory range, case was remanded because trial court applied erroneous legal reason ing that removed a sentencing option from consideration); State v. Sawyer, 11th Dist. Portage No, 2011-P0003, 2012-Ohio-5119, (erroneous imposition of mandatory prison term was plain error);

State v. Rivera , 10th Dist. Franklin No. 10AP-945, 2012-Ohio-1915 (case revers ed where trial court erroneously believed it could not impose consecutiv e sentences); State v. Allen , Franklin Nos. 11AP-640, 11AP-641, and 11AP-642, 2012-Ohio-2986 (reversal because trial court mistakenly believed consecutive sentences required, even though state argued plain error and that resulting sentence was authorized by law); State v. Bowers , 2016-Ohio-904 (court mistakenly applied sexually violent predator specificati on). {¶ 42} Therefore, we find the court erred when it sentenced Deck to li fe without parole pursuant to R.C. 2971.03(A) and sustain Deck's fourth as signment of error. The sentence is hereby vacated and the case is remanded to the tria l court for the sole purpose of resentencing. In all other respects, the trial court's judg ment is affirmed. {¶ 43} Judgment affirmed in part, reversed in part and remanded.

PIPER, P.J., and S. POWELL, J., concur.