[Cite as State v. Davidson , 2020-Ohio-3144.]

IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO FAYETTE COUNTY

STATE OF OHIO, Appellee,

- vs -

RICHARD A. DAVIDSON, Appellant. :

:

:

:

:

: CASE NO. CA2019-07-013 O P I N I O N 6/1/2020

CRIMINAL APPEAL FROM FAYETTE CO UNTY COURT OF COMMON PLEAS Case No. CRI20160326

Jess, C. Weade, Fayette County Prosecuting Attorney, 110 East C ourt, Washington Court House, Ohio 43160, for appellee Richard A. Davidson, #A737319, London Correctional Institution, 1580 State Route 56 SW, London, Ohio 43140, pro se

S. POWELL, J. {¶ 1} Appellant, Richard A. Davidson, appeals the decision of the Fay ette County Court of Common Pleas denying his petition for postconviction r elief after he was found guilty of unlawful sexual conduct with a minor and aggravated p ossession of drugs following a bench trial. For the reasons outlined below, we affirm the t rial court's decision. {¶ 2} On February 3, 2017, the Fayette County Grand Jury returned an indictmentFayette CA2019-07-013

- 2 - charging Davidson with one count of unlawful sexual conduct wit h a minor in violation of R.C. 2907.04(A), a third-degree felony, and one count of aggrav ated possession of drugs in violation of R.C. 2925.11(A), a fifth-degree felony. The ma tter was ultimately tried to the bench. At trial, the state presented evidence that Davidson, w ho was at that time 43 years old, had engaged in unlawful sexual conduct with the 13-year-ol d victim, R.S., during the early morning hours of December 1, 2016. The state also presen ted evidence that police then discovered methamphetamine in the car Davidson had driven that morning to meet with R.S. The trial court found Davidson guilty on both counts and sentenced him to serve four years in prison. The trial court also classified Davidson as a Tier II sex offender. {¶ 3} Davidson then appealed. In support of his appeal, Davidson arg ued that the state had failed to produce sufficient evidence to support his conviction. Davidson also argued that he received ineffective assistance of counsel. Thi s court disagreed and affirmed Davidson's conviction in State v. Davidson , 12th Dist. Fayette Nos. CA2017-08- 015 and CA2017-08-016, 2018-Ohio-1779 (" Davidson I "). In so holding, this court stated in regard to Davidson's conviction for unlawful sexual conduct with a minor: In this case, R.S. testified that she had invited Davidson to t he house in the middle of the night and gave him instructions to n ot arouse the suspicions of her grandmother. R.S. testified that Davidson asked her how old she was on numerous occasions and even asked her what her birthday was, which caused her to "pause" so she could do the math in her head. While R.S. told Davidson that she was 19 years old, he did not do anything to learn her true age. In fact, the evidence strongly suggests th at Davidson was extremely skeptical that R.S. had provided him with her correct age. Viewing the evidence in a light most favorable to the prosecution, a reasonable trier of fact could find that Davidson was reckless in determining R.S.'s true age before engaging in sexual conduct with her. Id . at ¶ 21. {¶ 4} Davidson did not timely appeal this court's decision to the Ohi o Supreme Court. However, after the time to request review by the Ohio S upreme Court had passed,Fayette CA2019-07-013

- 3 - Davidson filed a motion for a delayed appeal. The Ohio Supreme Court denied Davidson's motion for a delayed appeal in State v. Davidson , 153 Ohio St.3d 1493, 2018-Ohio-1103. Davidson also filed an application requesting this court reopen his appeal. This court denied Davidson's application to reopen his appeal in State v. Davidson , 12th Dist. Fayette Nos. CA2017-08-015 and CA2017-08-016 (Oct. 5, 2018) (Entry Denying A pplication to Reopen Appeal). The Ohio Supreme Court subsequently declined review o f this court's decision to deny Davidson's motion to reopen his appeal in State v. Davidson , 154 Ohio St.3d 1479, 2019-Ohio-173. {¶ 5} On April 25, 2018, while his direct appeal in Davidson I was still pending, Davidson filed a petition for postconviction relief with the tr ial court. In the months that followed, Davidson also filed an amended petition for postconvi ction relief, a supplemental petition for postconviction relief, as well as a motion for sum mary judgment on his petition for postconviction relief. 1 Then, on October 9, 2019, the trial court denied Davidson's petition for postconviction relief upon finding Davidson had fa iled to set forth any "substantive grounds for relief." The trial court reached this decision without first holding a hearing on the matter. Davidson now appeals the trial court's decision to deny his petition for postconviction relief, raising six assignments of error for review. {¶ 6} Assignment of Error No. 1: {¶ 7} R.C. 2907.04(A) IS VOID FOR VAGUENESS IN RELATION TO THE RECKLESS ELEMENT AND UNCONSTITUTIONAL. {¶ 8} In his first assignment of error, Davidson argues the trial cou rt erred by denying his petition for postconviction relief since the unlawf ul sexual conduct with a minor

1. Davidson also filed a petition for a writ of habeas corpus w ith the United States District Court for the Southern District of Ohio. Finding no merit to any of the argu ments raised by Davidson therein, the district court denied Davidson's petition in Davidson v. Warden, Warren Corr. Inst. , 2019 U.S. Dist. LEXIS 38174 (S.D.Ohio, Mar. 11, 2019).Fayette CA2019-07-013

- 4 - statute, R.C. 2907.04(A), is unconstitutionally void for vaguen ess. However, contrary to Davidson's claim, the Second District Court of Appeals has alre ady rejected this argument in State v. Turner , 156 Ohio App.3d 177, 2004-Ohio-464 (2d Dist.). In so holding , the Second District specifically found R.C. 2907.04(A) is not "void for vagueness. To the contrary, persons of ordinary intelligence could easily tell wh at conduct is prohibited." Id

. at ¶ 19. We agree. {¶ 9} While it may be true that Davidson has consistently argued that he reasonably believed R.S. was 19 years old at the time of the offense, that does not negate the fact that the statutory elements necessary to secure a conviction for unl awful sexual conduct with a minor in violation of R.C. 2907.04(A) are clear. That is to sa y, in order to secure a conviction, the state needed to prove: (1) Davidson engaged in sexual conduct with R.S.; (2) R.S. was not Davidson's spouse when the sexual conduct occu rred; (3) Davidson was 18 years of age or older at the time; (4) R.S. was 13 years of age or older, but under 16 years of age; and (5) Davidson knew R.S.'s age or was reckless in that regard. As this court already determined in Davidson I , the state proved all of these elements beyond a reasonable doubt. Id. , 2018-Ohio-1779 at ¶ 12-22. Therefore, because R.C. 2907.04(A ) is not unconstitutionally void for vagueness, Davidson's first ass ignment of error lacks merit and is overruled. {¶ 10} Assignment of Error No. 2: {¶ 11} THE TRIAL COURT LACKED JURISDICTION OVER THE SUBJECTMATTER IN ORDER TO HOLD APPELLANT CRIMINALLY LIABLE. {¶ 12} In his second assignment of error, Davidson argues the trial co urt erred by denying his petition for postconviction relief since the trial court lacked subject matter jurisdiction to convict him of unlawful sexual conduct with a m inor. Davidson supports this argument by alleging Ohio appellate courts now "consistently ho ld" that the unlawful sexualFayette CA2019-07-013

- 5 - conduct statute, R.C. 2907.04(A), possesses both "mens rea elem ents and strict liability." This, according to Davidson, renders "the mens rea elements" fo und in R.C. 2907.04(A) "non-essential and removed the trial court's jurisdiction over the subject matter," which "also removed the trial court's power and authority to adjudicate the merits of the case and to hold [him] criminally reliable (sic)." Therefore, because "[t] he mens rea elements of a criminal offense are what gives a trial court jurisdiction over the subject-matter in order to hold the defendant criminally liable," Davidson argues the tria l court lacked subject matter jurisdiction to convict him of unlawful sexual conduct with a m inor in violation of R.C. 2907.04(A). We disagree. {¶ 13} Davidson is essentially arguing that his conviction is void for lack of subject matter jurisdiction since his indictment did not allege every e lement of the offense. However, while that may have been the law in the past, see State v. Conley , 12th Dist. Preble No. CA90-11-023, 1991 Ohio App. LEXIS 3343, *3-4 (July 1 5, 1991), citing State v. Cimpritz , 158 Ohio St. 490 (1953), paragraphs three and six of the syll abus; and State v. Wohlever , 27 Ohio App.3d 192 (9th Dist.1985), "a conviction stemming fr om an indictment that omits a material element of the offense sought to be charg ed is no longer considered void for lack of subject matter jurisdiction." State v. Shie , 12th Dist. Butler No. CA2007-02- 038, 2008-Ohio-350, ¶ 57, citing Midling v. Perrini , 14 Ohio St.2d 106, 107 (1968). The conviction is instead considered "voidable on a direct appeal f rom that judgment of conviction." Id

. {¶ 14} Because the alleged defect in Davidson's indictment rendered hi s conviction for unlawful sexual conduct with a minor at worst voidable, not void, Davidson cannot challenge the sufficiency of his indictment now that "all direc t appeals from his conviction have been exhausted." State v. Howe , 2d Dist. Montgomery No. 23423, 2010-Ohio-1621, ¶ 20. Therefore, finding no merit to Davidson's claim alleging the trial court lacked subjectFayette CA2019-07-013

- 6 - matter jurisdiction to convict him of unlawful sexual conduct w ith a minor, Davidson's second assignment of error is overruled. {¶ 15} Assignment of Error No. 3: {¶ 16} INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL. {¶ 17} In his third assignment of error, Davidson argues the trial cou rt erred by denying his petition for postconviction relief because his tria l counsel provided him with ineffective assistance of counsel. Davidson supports this clai m by alleging his trial counsel was ineffective for failing to establish a defense strategy, fo r resting at the close of the state's case without calling any witnesses, for "waiving jury r ights," for "not allowing him to testify at trial," for stipulating to "everything to include al l evidence," for stipulating to his "guilt on all charges," for "not objecting to a single issue th roughout the entire trial proceeding," as well as for "not calling a single witness to te stify, failing to renew [his] Crim.R. 29 motion for acquittal within (14) days of the verdict , not meeting with [him] prior to sentencing phase, and not presenting [a] defense whatsoever[ .]" We disagree. {¶ 18} This court has already rejected these same arguments, or substa ntially similar arguments, when affirming Davidson's conviction on direct appea l in Davidson I

. See Id. , 2018-Ohio-1779 at ¶ 25-33. There is nothing in the record now before this court that would change this court's earlier decision on those matters. There i s also nothing in the record that would necessitate this court to reconsider that decision i n this case. The doctrine of res judicata clearly applies and bars these claims. See, e.g., State v. Harrop , 12th Dist. Fayette No. CA2018-12-028, 2019-Ohio-3230, ¶ 8 (res judicata ap plied where appellant "had previously raised the issue of ineffective assistance of c ounsel in his previous appeals and the matter was ruled upon"). Therefore, for the reasons al ready stated by this court in Davidson I , Davidson's third a ssignment of error lacks merit and is overr uled. {¶ 19} Assignment of Error No. 4:Fayette CA2019-07-013

- 7 - {¶ 20} THE APPELLANT HAS BEEN PREJUDICIALLY DEPRIVED OF HIS ACTUAL INNOCENCE. {¶ 21} In his fourth assignment of error, Davidson argues the trial co urt erred by denying his petition for postconviction relief since he is inno cent of unlawful sexual conduct with a minor. This is because, according to Davidson, he was t he unwitting victim of a fraud perpetrated by R.S., "a teen with the help of her family member s," who tricked him "into believing he was actually meeting with an adult." However, as noted above, this court has already determined that Davidson's conviction was supported by sufficient evidence on direct appeal in Davidson I

. See Id. , 2018-Ohio-1779 at ¶ 12-22. There is again nothing in the record now before this court that would change this court's earlier decision on those matters, nor is there anything in the record that would necessi tate this court to reconsider that decision in this case. This holds true even when reviewin g the "new" documentary evidence Davidson claims contains "absolute proof" that he was "misled by fraudulent means" into "believing R.S. was an adult." Therefore, for the reasons already stated by this court in Davidson I , Davidson's fourth assignmen t of error lacks merit and is over ruled. {¶ 22} Assignment of Error No. 5: {¶ 23} THE TRIAL COURT ERRED WHEN IT SENTENCED APPELLANT TO MORE THAN THE MINIMUM SENTENCE. {¶ 24} In his fifth assignment of error, Davidson argues the trial cou rt erred by denying his petition for postconviction relief because the reco rd does not support the trial court's decision to impose more than the minimum sentence. Thi s claim is also barred by the doctrine of res judicata. See, e.g., State v. Smith , 5th Dist. Fairfield No. 14-CA-18, 2014-Ohio-4657, ¶ 24 (res judicata applied to bar appellant's c laim alleging the trial court erred by imposing "more than the minimum sentence"). However, even when reviewing this claim on the merits, we disagree with Davidson's claim and find there was more thanFayette CA2019-07-013

- 8 - enough evidence to support the trial court's decision to senten cing him to more than the minimum sentence. {¶ 25} We also disagree with Davidson's claim that the trial court's s entencing decision was contrary to law since the trial court failed to co nsider the necessary sentencing statutes, R.C. 2929.11 and 2929.12, prior to issuing its senten cing decision. The record instead indicates the trial court properly considered the statu tory sentencing factors and guidelines found in both statutes before pronouncing its decisi on to sentence Davidson to four years in prison. Therefore, finding no merit to any of th e arguments raised by Davidson herein, Davidson's fifth assignment of error is overruled. {¶ 26} Assignment of Error No. 6: {¶ 27} THE TRIAL COURT ABUSED ITS DISCRETION IN DISMISSING APPELLANT'S PETITION FOR POSTCONVICTION RELIEF WITHOUT A HEARIN G. {¶ 28} In his sixth assignment of error, Davidson argues the trial cou rt erred by denying his petition for postconviction relief without first ho lding a hearing. However, contrary to Davidson's claim, an evidentiary hearing is not aut omatically guaranteed each time a defendant files a petition for postconviction relief. State v. Suarez , 12th Dist. Warren No. CA2014-02-035, 2015-Ohio-64, ¶ 10. Rather, to be entitled to a hearing, Davidson was required to "show that there are substantive grounds for relief that would warrant a hearing based upon the petition, the supporting affidavits, and the fil es and records in the case." State v. Vore , 12th Dist. Warren Nos. CA2012-06-049 and CA2012-10-106, 2013- Ohio1490, ¶ 11. Davidson failed to make that showing. Therefore, because Davidson failed to establish sufficient operative facts to show that there were su bstantive grounds for relief, the trial court did not err by denying Davidson's petition for postconviction relief without first holding a hearing. Accordingly, finding no merit to Davidson's claim raised herein, Davidson's sixth assignment of error is overruled.Fayette CA2019-07-013

- 9 - {¶ 29} Judgment affirmed.

HENDRICKSON, P.J., and M. POWELL, J., concur.