[Cite as State v. Michael , 2011-Ohio-2691.]

COURT OF APPEALS 

TUSCARAWAS COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsLEVI J. MICHAEL 

 Defendant-Appellant 

JUDGES: 

Hon. William B. Hoffman, P.J. 

Hon. Julie A. Edwards, J. 

Hon. Patricia A. Delaney, J. 

Case No. 10AP090034 

O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Tuscarwas County Court of 

Common Pleas, Case No. 2009CR080216 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: June 2, 2011 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

RYAN STYER JEREMY J. MASTERS 

Tuscarawas County Prosecutor Office of the Public Defender 

AMANDA K. MILLER Assistant State Public Defender 

Assistant County Prosecutor 250 East Broad Street, Suite 1400 

for Tuscarawas County Columbus, Ohio 43215 

125 East High Avenue 

New Philadelphia, Ohio 44663 
Tuscarawas County, Case No. 10AP090034 2

Hoffman, P.J. 

{¶1} Defendant-appellant Levi J. Michael appeals his conviction and sentence 

entered by the Tuscarawas County Court of Common Pleas, on six counts of rape, 

following a jury trial. Plaintiff-appellee is the State of Ohio. 

STATEMENT OF THE CASE AND FACTS 

{¶2} On October 29, 2009, the Tuscarawas County Grand Jury indicted 

Appellant on six counts of rape, all in violation of R.C. 2907.02(A)(1)(b), two counts for 

each of his three minor children, C.M., S.M., and L.M. Counts One and Two alleged 

Appellant engaged in sexual conduct with C.M. when the boy was under the age of ten, 

and under the age of thirteen, respectively. Counts Three and Four alleged Appellant 

engaged in sexual conduct with S.M. while she was under the age of ten, and under the 

age of thirteen, respectively. Counts Five and Six alleged Appellant engaged in sexual 

conduct with L.M. while she was under the age of thirteen. Appellant appeared for 

arraignment and entered a plea of not guilty to the Indictment. The State filed a Bill of 

Particulars which mirrored the Indictment. Appellant filed a Motion for More Specific Bill 

of Particulars, asserting the Indictment and Bill of Particulars were inadequate in light of 

the Sixth Circuit’s decision in Valentine v. Konteh (C.A. 6 2005) 395 F3d. 626. Although 

the State opposed the motion, it filed an Amended Bill of Particulars. 

{¶3} The matter proceeded to jury trial on August 10, 2010. Kari Abel, an 

investigator with the Tuscarawas County Department of Job and Family Services, 

testified the agency received a complaint on August 10, 2009, that one of Appellant’s 

children had been sexually abused by a family member. In response, Abel scheduled 

interviews with Appellant’s children and other family members. Abel and Detective 
Tuscarawas County, Case No. 10AP090034 3

Kathy Bickford of the Tuscarawas County Sheriff’s Department conducted individual 

interviews with the children on August 11, 2009. Based upon information obtained 

during the interviews, Abel and Bickford made a referral for S.M. at Akron Children’s 

Hospital. Thereafter, on August 17, 2009, the Tuscarawas County Juvenile Court 

granted temporary custody of the children to the agency. The children were placed in 

foster care, and had not seen either Appellant or their mother since that time. Although 

TCDJFS had a history with the Michael family, none of the children had disclosed any 

incidents of sexual abuse prior to August, 2009. 

{¶4} Detective Kathy Bickford testified she has specialized training in 

investigating crimes against children. The day after interviewing the children with Abel 

Bickford arrested Appellant. Bickford interviewed Appellant after he was booked into 

jail. Appellant initially denied all allegations, but on August 13, 2009, he requested to 

speak with Bickford. During the second interview, Appellant made several confessions, 

including an admission to raping his two daughters. Appellant summarized his 

confession in a sworn written statement executed at the conclusion of the second 

interview. During a subsequent search of Appellant’s home, Bickford found several 

bottles of intimate lubricators and a bottle of EZ anal desensitizing spray gel. 

{¶5} Cathy Beckwith-Laube, a licensed social worker employed by the C.A.R.E. 

Center at Akron Children’s Hospital, testified she interviewed S.M. prior to her medical 

examination at the C.A.R.E. Center in September, 2009. An audio/video recording of 

Laube’s interview of S.M. was played in open court in its entirety. Laube also testified 

she interviewed C.M. on October 14, 2009. The audio/video recordings of those 

interviews were also played for the jury in its entirety. 
Tuscarawas County, Case No. 10AP090034 4

{¶6} Donna Abbott, a certified nurse practitioner with the C.A.R.E. Center of 

Akron Children’s Hospital, testified she performed the medical examination and 

evaluation of C.M. after he had been interviewed by Laube. Abbott testified C.M.’s 

medical examination was normal, which was not surprising based upon physiological 

reasons. Abbott explained C.M. had been separated from Appellant for over one month 

at the time of his medical examination and Appellant had used lubrication during the 

acts of penetration, both significant factors which resulted in the normal medical 

examination findings. 

{¶7} Daryl Steiner, D.O., the medical director at the C.A.R.E. Center, testified 

he performed the medical examination of S.M. in September, 2009, following the girl’s 

interview with Laube. Dr. Steiner indicated S.M.’s medical examination was normal, 

and explained such results were not surprising because the girl had progressed through 

nearly the entire pubertal maturation process. Because S.M. was almost completely 

mature in her secondary sexual characteristics, the fact there were no signs of residual 

tissue injuries was not surprising to Dr. Steiner. 

{¶8} All three children testified, recounting the sexual abuse Appellant inflicted 

upon them. 

{¶9} After hearing all the evidence and deliberating, the jury found Appellant 

guilty of all six counts of the indictment and made affirmative findings on all special 

findings. The trial court sentenced Appellant to a term of imprisonment of life without 

the possibility of parole on Counts One and Three, twenty-five years to life on Counts 

Two and Four, and ten years to life for Counts Five and Six. The trial court ordered the 

sentences on the counts relating to each child be served concurrently (i.e., Counts One 
Tuscarawas County, Case No. 10AP090034 5

and Two which relate to C.M. are to be served concurrently to each other), but 

consecutively to the sentences imposed for the counts involving the individual children 

(i.e. sentence on counts involving S.M. served consecutive to sentence on counts 

involving C.M.). 

{¶10} It is from this conviction and sentence Appellant appeals, raising the 

following assignments of error: 

{¶11} “I. THE TRIAL COURT ERRED BY CONVICTING LEVI MICHAEL BASED 

UPON MULTIPLE COUNTS OF A SINGLE OFFENSE, DENYING HIM DUE PROCESS 

OF LAW AND VIOLATING THE DOUBLE JEOPARDY CLAUSE. FIFTH AND 

FOURTEENTH AMENDMENTS, UNITED STATES CONSTITUTION; SECTION 10, 

ARTICLE I, OHIO CONSTITUTION. 

{¶12} “II. THE TRIAL COURT VIOLATED LEVI MICHAEL’S RIGHTS TO DUE 

PROCESS AND A FAIR TRIAL WHEN, IN THE ABSENCE OF SUFFICIENT 

EVIDENCE, THE TRIAL COURT CONVICTED MR. MICHAEL OF RAPE. FIFTH AND 

FOURTEENTH AMENDMENTS, UNITED STATES CONSTITUTION; SECTION 16, 

ARTICLE I, OHIO CONSTITUTION. 

{¶13} “III. THE TRIAL COURT VIOLATED LEVI MICHAEL’S RIGHTS TO DUE 

PROCESS AND A FAIR TRIAL WHEN IT ENTERED A JUDGMENT OF CONVICTION 

FOR RAPE, WHICH WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. 

FIFTH AND FOURTEENTH AMENDMENTS, UNITED STATES CONSTITUTION; 

SECTION 16, ARTICLE I, OHIO CONSTITUTION.” 
Tuscarawas County, Case No. 10AP090034 6

I 

{¶14} In his first assignment of error, Appellant argues he was denied his due 

process rights because the trial court convicted him of two counts of rape which were 

differentiated only by the broad time periods involved. Specifically, Appellant 

challenges the lack of specificity in which Counts One and Two of the Indictment were 

charged. 

{¶15} “No principle of procedural due process is more clearly established than 

that notice of the specific charge, and a chance to be heard in a trial of the issues raised 

by that charge, if desired, are among the constitutional rights of every accused in a 

criminal proceeding in all courts, state or federal.” Cole v. Arkansas (1948), 333 U.S. 

196, 201. 

{¶16} Appellant relies upon Valentine v. Konteh (C.A.6, 2005), 395 F.3d 626, 

and State v. Hemphill, Cuyahoga App. No. 85431, 2005-Ohio-3726, which followed 

Valentine, in support of his position his constitutional due process rights were violated 

when the trial court convicted him of two counts of rape involving C.M. In Valentine, the 

United States Court of Appeals for the Sixth Circuit granted habeas corpus relief, 

concluding the petitioner’s convictions violated his due process rights because the 

prosecution failed to make any factual distinctions among the counts, permitting the 

petitioner to be “prosecuted and convicted for a generic pattern of abuse rather than for 

forty separate abusive incidents.” Id. at 634. 

{¶17} In Valentine, the petitioner was convicted of 40 counts of sexual abuse: 20 

counts each of rape and felonious sexual penetration. The counts of each crime were 

identically worded in the indictment. The 8-year-old victim described “typical” abusive 
Tuscarawas County, Case No. 10AP090034 7

behavior by the defendant and then testified the “typical” abuse occurred twenty or 

fifteen times. Other than the victim's estimate, the State failed to present any evidence 

as to the number of incidents. Id. at 633. The Sixth Circuit found the petitioner’s 

constitutional rights were violated because there were no distinctions made at any time 

before or during trial to differentiate one incident of sexual abuse from another in order 

to match each charge with a specific incident. The Valentine Court focused on the fact 

there were no factual bases for forty separate incidents contained in the indictment, the 

bill of particulars, or in the testimony at trial. Id. at 633. This prevented the jury from 

considering each count because they were not connected to distinguishable incidents. 

Id. at 633-634. 

{¶18} We find Valentine to be factually distinguishable. In the instant action, 

Appellant was charged with two counts of rape involving C.M. The State tailored each 

offense to fit a particular time period. Count One, while charged as a continuing course 

of conduct, encompassed the period of time from when Appellant’s abuse of C.M. 

began until just prior to the child’s tenth birthday. Count Two, which was also charged 

as a continuing course of conduct, encompassed the time period from when C.M. was 

ten years of age until the abuse was disclosed and Appellant was arrested. As will be 

discussed infra, the testimony at trial supported convictions under both time periods. 

{¶19} We find Counts One and Two of the Indictment were charged with 

sufficient specificity to put Appellant on notice of the charges against him. 

{¶20} Based upon the foregoing, Appellant’s first assignment of error is 

overruled. 
Tuscarawas County, Case No. 10AP090034 8

II, III 

{¶21} In his second and third assignments of error, Appellant maintains his 

convictions on Counts One, Two, and Three were based upon insufficient evidence and 

were against the manifest weight of the evidence. 

{¶22} Our standard of reviewing a claim a verdict was not supported by sufficient 

evidence is to examine the evidence presented at trial to determine whether the 

evidence, if believed, would convince the average mind of the accused's guilt beyond a 

reasonable doubt. The relevant inquiry is whether, after viewing the evidence in the light 

most favorable to the prosecution, any rational trier of fact could have found the 

essential elements of the crime proven beyond a reasonable doubt, State v. Jenks

(1991), 61 Ohio St.3d 259, 574 N.E.2d 492, superseded by State constitutional 

amendment on other grounds as stated in State v. Smith (1997), 80 Ohio St.3d 89, 684 

N.E.2d 668. 

{¶23} The Supreme Court has explained the distinction between claims of 

sufficiency of the evidence and manifest weight. Sufficiency of the evidence is a 

question for the trial court to determine whether the State has met its burden to produce 

evidence on each element of the crime charged, sufficient for the matter to be submitted 

to the jury. 

{¶24} Manifest weight of the evidence claims concern the amount of evidence 

offered in support of one side of the case, and is a jury question. We must determine 

whether the jury, in interpreting the facts, so lost its way that its verdict results in a 

manifest miscarriage of justice, State v. Thompkins (1997), 78 Ohio St.3d 387, 678 

N.E.2d 541, 1997-Ohio-52, superseded by constitutional amendment on other grounds 
Tuscarawas County, Case No. 10AP090034 9

as stated by State v. Smith, 80 Ohio St.3d 89, 1997-Ohio-355, 684 N.E.2d 668. On 

review for manifest weight, a reviewing court is “to examine the entire record, weigh the 

evidence and all reasonable inferences, consider the credibility of the witnesses and 

determine whether in resolving conflicts in the evidence, the trier of fact clearly lost its 

way and created such a manifest miscarriage of justice that the judgment must be 

reversed. The discretionary power to grant a new hearing should be exercised only in 

the exceptional case in which the evidence weighs heavily against the judgment.” State 

v. Thompkins, supra, 78 Ohio St.3d at 387, citing State v. Martin (1983), 20 Ohio 

App.3d 172, 175. Because the trier of fact is in a better position to observe the 

witnesses' demeanor and weigh their credibility, the weight of the evidence and the 

credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 

Ohio St.2d 230, 227 N.E.2d 212, syllabus 1. 

{¶25} We first address Appellant’s sufficiency of the evidence challenge. Counts 

One and Two involve Appellant’s son, C.M. Count Three involves Appellant’s middle 

child, S.M. As discussed, supra, Count One charged rape as a continuing course of 

conduct when C.M. was under the age of ten, and Count Two charged rape as a 

continuing course of conduct when C.M. was over the age of ten, but under the age of 

thirteen. Count Three charged rape as a continuing course of conduct when S.M. was 

under the age of ten. Appellant submits the State failed to satisfy the age element 

relative to each count. Appellant explains C.M. neither testified regarding a separate, 

distinct incident of sexual conduct which occurred before the age of ten nor a separate, 

distinct incident of sexual conduct which occurred after the age of ten, but before the 

age of thirteen, and S.M., likewise, did not testify regarding a separate, distinct incident 
Tuscarawas County, Case No. 10AP090034 10

of sexual conduct which occurred before the age of ten. Appellant concludes without 

such testimony there was insufficient evidence to sustain his convictions on Counts 

One, Two, and Three. We disagree. 

{¶26} First, the specific age of a rape victim is not an element of the offense, but 

rather a special finding which is for sentence enhancement purposes only. Thus, 

Appellant cannot utilize any alleged failure by the State to present evidence of the 

victims’ ages as support for his argument his underlying convictions for rape are based 

upon insufficient evidence. 

{¶27} Furthermore, we find the State presented sufficient evidence Appellant 

raped C.M. when the child was under the age of ten, and also when the boy was over 

the age of ten, but under the age of thirteen. C.M. testified Appellant began abusing him 

when he was five years old. At the time of trial, C.M. was eleven years old, his birthday 

being January 8, 1999. C.M. recalled the last time Appellant abused him was just prior 

to C.M. being placed in foster care in August, 2009, some nine months after he turned 

ten years old. Cathy Beckwith-Laube, the social worker at the C.A.R.E. Center, testified 

she interviewed C.M. An audio/video recording of the interview was played for the jury. 

We have reviewed the recording and find this evidence alone is sufficient to support 

Appellant’s convictions on Counts One and Two. 

{¶28} We also find the State presented sufficient evidence Appellant raped S.M. 

when the girl was under the age of ten. S.M. testified Appellant began abusing her when 

she was between six and eight years old. At the time of trial, S.M. was thirteen years 

old, her birthday being July 5, 1997. Laube also testified she interviewed S.M. An 

audio/video recording of the interview was played for the jury. We have reviewed the 
Tuscarawas County, Case No. 10AP090034 11

recording and find this evidence alone is sufficient to support Appellant’s conviction on 

Count Three. 

{¶29} We now turn to Appellant’s assertion his convictions on Counts One, Two, 

and Three were against the manifest weight of the evidence. Appellant contends the 

testimony of C.M. and S.M. was “vague, uncertain, inconsistent, and incomplete”, and 

by relying on such, the jury clearly lost its way. Again, Appellant focuses his argument 

on the evidence presented at trial as to the ages of the victims. For the reasons we 

found the convictions were based upon sufficient evidence, we, likewise, find the 

convictions were not against the manifest weight of the evidence. 

{¶30} Appellant’s second and third assignments of error are overruled. 

{¶31} The judgment of the Tuscarawas County Court of Common Pleas is 

affirmed. 

By: Hoffman, P.J. 

Edwards, J. and 

Delaney, J. concur 

 s/ William B. Hoffman _________________

 HON. WILLIAM B. HOFFMAN 

 s/ Julie A. Edwards___________________

 HON. JULIE A. EDWARDS 

 s/ Patricia A. Delaney _________________

 HON. PATRICIA A. DELANEY 

 
Tuscarawas County, Case No. 10AP090034 12

IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : 

 : 

 Plaintiff-Appellee : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

LEVI J. MICHAEL : 

 : 

 Defendant-Appellant : Case No. 10AP090034 

 For the reasons stated in our accompanying Opinion, the judgment of the 

Tuscarawas County Court of Common Pleas is affirmed. Costs to Appellant. 

 s/ William B. Hoffman _________________

 HON. WILLIAM B. HOFFMAN 

 s/ Julie A. Edwards___________________

 HON. JULIE A. EDWARDS 

 s/ Patricia A. Delaney _________________

 HON. PATRICIA A. DELANEY