[Cite as State v. Gordon,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 28191

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE BRUCE L. GORDON COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 2015 03 0656

DECISION AND JOURNAL ENTRY

Dated: July 12, 2017

CARR, Judge.

{¶1} Defendant-Appellant Bruce L. Gordon appeals from the judgment of the Summit

County Court of Common Pleas. This Court affirms in part, reverses in part, and remands the

matter for proceedings consistent with this opinion.

I.

{¶2} In March 2015, Gordon was indicted on two counts of rape in violation of R.C.

2907.02(A)(1)(b). The indictment included factual allegations that Gordon purposely compelled

the victims to submit by force or threat of force. Additionally, Gordon was charged with three

counts of gross sexual imposition in violation of R.C. 2907.05(A)(4). The allegations involved

Gordon’s three stepdaughters, K.A. (born in 2006), R.A. (born in 2007), and S.A. (born in 2009).

The matter proceeded to a jury trial, at which the jury found Gordon guilty of the charged

offenses. With respect to the rape counts, the jury specifically found that both victims, K.A. and

R.A., were under the age of ten at the time of the offense and that they were compelled to submit 2

by force or threat of force. The trial court sentenced Gordon to an aggregate term of fifty-five

years to life in prison.

{¶3} Gordon has appealed, raising seven assignments of error for our review, which

will be discussed out of sequence to facilitate our analysis.

II.

ASSIGNMENT OF ERROR II

THE TRIAL COURT COMMITTED REVERSIBLE [ERROR] WHEN IT FOUND MR. GORDON GUILTY OF RAPE AND GROSS SEXUAL IMPOSITION BECAUSE THE EVIDENCE WAS INSUFFICIENT TO SUPPORT SUCH FINDINGS.

ASSIGNMENT OF ERROR III

MR. GORDON’S CONVICTIONS FOR RAPE AND GROSS SEXUAL IMPOSITION ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶4} Gordon argues in his second assignment of error that his convictions are based on

insufficient evidence. He asserts in his third assignment of error that his convictions are against

the manifest weight of the evidence. He bases both arguments on that fact that “there was no

physical evidence linking [] Gordon to the crimes, the children did not personally identify []

Gordon as the perpetrator during the trial, or were coached to say it was [] Gordon by others; and

that the children had been previously exposed to sexualized behavior by their mother.”

{¶5} Gordon was convicted of two counts of violating R.C. 2907.02(A)(1)(b) and three

counts of violating R.C. 2907.05(A)(4). R.C. 2907.02(A)(1)(b) states that “[n]o person shall

engage in sexual conduct with another who is not the spouse of the offender * * * when * * *

[t]he other person is less than thirteen years of age, whether or not the offender knows the age of

the other person.” Sexual conduct 3

means vaginal intercourse between a male and female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal opening of another. Penetration, however slight, is sufficient to complete vaginal or anal intercourse.

R.C. 2907.01(A).

{¶6} R.C. 2907.05(A)(4) provides, in relevant part, that “[n]o person shall have sexual

contact with another, not the spouse of the offender * * * when * * * “[t]he other person * * * is

less than thirteen years of age, whether or not the offender knows the age of that person.” Sexual

contact “means any touching of an erogenous zone of another, including without limitation the

thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of

sexually arousing or gratifying either person.” R.C. 2907.01(B).

Sufficiency

{¶7} A review of the sufficiency of the evidence and the manifest weight of the

evidence adduced at trial are separate and legally distinct determinations. State v. Gulley, 9th

Dist. Summit No. 19600,

, *1 (Mar. 15, 2000). When reviewing the sufficiency

of the evidence, this Court must review the evidence in a light most favorable to the prosecution

to determine whether the evidence before the trial court was sufficient to sustain a conviction.

State v. Jenks,

(1991).

An appellate court’s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a 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.

at paragraph two of the syllabus. 4

{¶1} K.A.’s, R.A.’s and S.A.’s father died in 2010. Ultimately, the girls’ mother

(“Mother”) began dating Gordon, whom she knew from high school. The two began living

together and then married. Following the death of their father, K.A. and R.A. began going to

counseling to address some issues the girls developed. Mother also attended counseling. S.A.,

who was significantly younger, did not begin counseling until the fall of 2012. With counseling,

the concerns were improving until late 2014 or early 2015, when Mother noted some problems

with the girls. R.A. who was 8 at the time, began wetting the bed, and she had never done so in

the past. She also seemed more depressed. All three girls also began exhibiting sexual

behaviors, such as rubbing their genitals on the corners of furniture and masturbating. To

address these issues, Mother increased the counseling sessions to once a week, along with some

group therapy sessions. However, at this point Mother did not suspect the girls were sexually

abused; the counselor noted that sometimes the behaviors could be perfectly normal. Mother

testified that the family had been under financial stress during this time and that she was

expecting another child, a son. She averred that they had filed for bankruptcy and were planning

to give up the house. They expected to move out by the end of February. The girls knew about

it and were not happy. K.A. had also recently had surgery to correct a bladder issue.

{¶2} Mother did testify that, about a week prior to the girls coming forward with

allegations of sexual abuse, around 2:30 a.m., she had gone to the bathroom and noticed Gordon

coming upstairs from the basement followed by K.A., who was only in her bra and underwear.

When Mother asked Gordon about it, he said that K.A. wanted to spend some time with him and

that they were playing Legos. Mother was surprised by this because it was a school night.

{¶3} Mother also acknowledged that at some point, during the summer, K.A. had been

exposed to pornography. She indicated that the incident had occurred when she was babysitting 5

other children at their home. The children were upstairs and K.A. was with them. When Mother

went upstairs to check on them they all got quiet. When K.A. and Mother went home, she

overheard K.A. asking R.A. if R.A. knew how to spell sex. When Mother questioned the girls,

K.A. told her that one of the children Mother babysat had showed her “some bad videos” and

told her a little bit about what was on the videos. Mother never saw the videos. Mother told the

counselor about it and the counselor discussed it with K.A.

{¶4} On February 8, 2015, the family was supposed to go to a party at Mother’s

parents’ house. However, K.A. was not feeling well. Gordon agreed to stay home with K.A. so

that Mother, R.A., and S.A. could go to the party. When Mother got home around 8 p.m., she

noticed that Gordon was in K.A.’s bed with her watching a movie. They were both clothed.

Nonetheless, Mother thought that was odd because Gordon had never done that before.

{¶5} The next morning, K.A. told her sisters that Gordon had licked her private spot.

R.A. reported this to Mother who proceeded to talk to each girl individually about whether

Gordon had abused them. R.A. and S.A. reported that Gordon had also touched them. Mother

was shocked by what she was told. When Gordon came home, she confronted him. He was very

calm, which, according to Mother was unusual, as he typically became very angry when

confronted with any type of allegations. Gordon told Mother that he would never do anything to

hurt the girls. Mother then had the girls repeat the allegations. At this point, Gordon stated that

if he did it, it was an accident.

{¶6} Mother then took the girls to her counselor and went to a couple stores. When she

came home, the girls’ counselor returned her phone call and told her that the counselor had to

report the incident and that Children Services would call her. Children Services called shortly

thereafter and told Mother she could not stay at the house with Gordon. Mother first took the 6

girls to her sister’s house but later took them to her parents’ house. Children Services called the

police and Mother spoke with police the next day. Police told Mother to make an appointment

with the Children at Risk Evaluation (“CARE”) Center. Mother did so, and an appointment was

made for approximately two weeks later.

{¶7} The girls were interviewed and medically examined at the CARE center. The

videos of the interviews were admitted as exhibits and portions were played during trial. The

interviewer testified that she was trained to interview children and that she asks open-ended,

non-leading questions in her interviews. She stated that her role is to conduct a diagnostic

interview so that the children can receive any medical care they might need. She averred that the

girls did not display any indicators that they had been coached.

{¶8} During the interview, K.A. reported multiple instances of sexual abuse. With

respect to the incident that started the investigation, K.A. indicated that while she and Gordon

were in her bedroom, Gordon told her to take off her clothes, which she did, and he pulled down

her underwear. He told her to lie down on her back with her legs in the air and said he was going

to check her for rashes. Gordon then licked her vagina and told her that what happened was no

one else’s business. Additionally, K.A. discussed multiple incidents of Gordon putting his finger

up her vagina while they were watching TV and also incidents of him putting his finger in her

sisters’ vaginas. He also rubbed her vagina. K.A. also discussed an incident when she and

Gordon were in the basement and Gordon asked her to touch his private spot, which she stated

was his penis. K.A. said no and went to her room. She also described Gordon having his penis

exposed and moving his hand up and down.

{¶9} During her interview, R.A. indicated that Gordon touched her private spot a

couple times with his hand and that he rubbed her private spot. R.A. stated that she told him to 7

please stop and he would, but then after a couple days he would touch her again. She described

her private spot as where pee comes out. R.A. stated that it would happen when Mother was

gone and while they would watch TV in Mother’s and Gordon’s room. She told the interviewer

that she also saw Gordon’s private spot a couple times.

{¶10} S.A., in her interview, stated that Gordon put his hand in her private spot and

tickled it while she was in her parents’ room while they were watching TV during a commercial.

She indicated it would happen when Mother was at the store or her sisters were not in the room

and that it happened twice. S.A. told the interviewer that Gordon would be naked that she would

see his private spot sticking up under the blanket. S.A. described her private spot as where she

pees and poops.

{¶11} The girls were also examined by Donna Abbott, a nurse practitioner. Ms. Abbott

testified that she did not utilize a rape kit because over 72 hours had passed since the last incident

of abuse. Thus, no DNA was collected. Ms. Abbott testified that she did not observe anything

abnormal during the physical exam, which she indicated was not uncommon in light of what the

girls reported had happened. She made an assessment of child sexual abuse with respect to all

three girls.

{¶12} After the CARE Center examinations, Detective Scott Rubes spoke with Mother

and instructed Mother on initiating a one-party consent phone call with Gordon in an attempt to

get Gordon to admit to the abuse. The phone call was played for the jury and admitted into

evidence. Mother told Gordon that she loved him and that she wanted to be able to stay with

him, but that she needed to know what happened, that Gordon was sorry, that it would not

happen again, and that he would get help. She testified that she lied to him in order to get

information from Gordon. During the phone call, Gordon stated that he may have accidentally 8

touched the girls while tickling them. He denied licking K.A. and surmised that, if she felt

anything wet, it was probably his finger when he was examining her because she said she had a

rash that hurt. He also indicated that he was sorry and prayed for forgiveness. Later in the call,

he stated that what happened with R.A. and S.A. was an accident but indicated that K.A. asked

him to do it, although not blatantly. He testified that K.A. was curious about something she saw

in a movie, it was over her underwear, and that she really liked it. He told Mother that he

stopped, that he felt really bad, and would never do it again.

{¶13} Detective Rubes also interviewed Gordon, and a portion of that interview was

played for the jury. During the interview, Gordon appeared very tearful and expressed that he

was sorry. He agreed that he regretted touching the girls. He remembered feeling guilty and

indicated that it was just K.A. but he did not remember a lot. He remembered stopping and

saying he was sorry. He denied licking K.A.’s vagina and stated he was only looking to see if it

was inflamed following her surgery as she was complaining that she was in pain.

{¶14} Detective Rubes testified that he also obtained a warrant to search Gordon’s

phone for child pornography. He did so because he was concerned there may have been

evidence on the phones based upon comments Gordon made to his mother over phone calls that

were made while he was in Summit County Jail. No evidence, however, was obtained from the

phone. Detective Guy Sheffield was part of the computer forensics unit with the Akron Police

Department. Detective Sheffield was charged with recovering the stored data on the phone.

When Detective Sheffield received the phone, it was in working condition, however, it was pass

code protected. In the process of trying to recover the data, Detective Sheffield damaged the

phone and nothing could be obtained from it. Detective Sheffield sent the phone to the cyber

crimes unit at the Ohio Bureau of Criminal Investigation (“BCI”) to see if the data could be 9

recovered. BCI was unsuccessful in its recovery efforts and no information was obtained from

the phone.

{¶15} All three girls testified at trial. K.A. recounted multiple instances of abuse. She

stated that, one time, while she and Gordon were in the basement, he asked her to touch his

private part and she said no. She then stated that he “started to like put his finger up” and she

told him to stop and he kept doing it. When asked to describe what she meant, she stated that he

was “picking on [her] private part[]” with his finger. She also testified that there was a time in

her room while they were watching a movie when he told her to pull down her pants down in

order to check for infection and he licked her “private spot[.]” She also averred that there was an

instance when the three girls were roughhousing and Gordon told them to settle down. The girls

laid on him and K.A. stated that “he just st[u]ck his finger right up us.” K.A. identified Gordon

at trial.

{¶16} R.A. testified that, more than once, Gordon touched her “down in [her] private

spot[]” when she and Gordon were in her parents’ room on their bed. She would sometimes tell

him to stop but he would not. She indicated that he “would always pull down [her] clothes and

pull down his clothes.” R.A. stated that she uses her private spot to go to the bathroom. R.A.

also identified Gordon at trial.

{¶17} S.A. testified that, more than once, while she and Gordon were in her parents’

room watching TV, Gordon “touched [her] private spot” with his fingers under her underwear.

S.A. averred that Gordon was naked when this happened. She stated that she did not see his

private spot because it was under a blanket. S.A. was not asked to identify Gordon at trial.

{¶18} The girls’ counselors also testified about their sessions and the summaries of

those records were admitted into evidence. Jennifer Knobloch, who counseled K.A. and S.A. 10

testified that, in April 2015, K.A. reported that, over the course of the last year, Gordon abused

her 20 to 30 times but only licked her once. At other sessions, K.A. told her counselor about

times that Gordon had touched her vagina. K.A. began having difficulty concentrating at school

and her grades dropped. Ms. Knobloch testified that such could be normal for a child

experiencing trauma. K.A. additionally reported that Gordon abused her sisters.

{¶19} Ms. Knobloch testified that during their sessions, S.A. also disclosed instances of

abuse. S.A. reported that, while she and Gordon were watching TV, there were two occasions

that he tickled her vagina under her underwear. She indicated that Gordon was naked on these

occasions. S.A. later described Gordon putting his hand in her pants and up her vagina. She

stated that he was naked and his private area was standing up under the blanket. She reported

that Gordon moved his hand around on his private area.

{¶20} Ms. Knobloch indicated that both girls began displaying boundary issues; Mother

had observed the girls inappropriately touching each other and the girls began exhibiting

sexualized play. S.A., who was five at the time, also had been caught masturbating and sticking

tissues up her vagina to make her sisters laugh. Ms. Knobloch explained that boundary issues

and prepubescent masturbation are common in children that have been sexually abused. Both

girls also expressed fears of Gordon, including what he would do during the time he was out on

bail.

{¶21} On cross-examination, Ms. Knobloch acknowledged that there were other

significant life changes happening in the girls’ lives. Mother moved in with her boyfriend in the

fall of 2015, whom she had only known for a short time. Additionally, K.A. witnessed a

domestic altercation between Mother’s boyfriend’s daughter and Mother that resulted in K.A.’s 11

baby brother being hit with a cell phone. However, Ms. Knobloch opined that those incidents

would not have caused the sexualized behaviors that were reported.

{¶22} Sarah Cool, R.A.’s counselor, testified about their sessions. Initially, after the

disclosure of abuse, R.A. was reluctant to discuss the incidents during counseling. Ms. Cool

testified that in April 2015, Mother had reported to Ms. Cool that R.A. seemed depressed, had

been withdrawing, was urinating in her pants, and had been sucking her thumb. Ms. Cool told

Mother that those symptoms were typical symptoms after sexual abuse. In October 2015, R.A.

reported that Gordon “put his vagina in [her] vagina.” She stated that this happened a couple of

times when Mother was at the store and her sisters were in their room. R.A. had wanted to watch

TV with Gordon and he put her on her lap and “did that.” She told Gordon to stop once but he

did not say anything or stop. Additionally, R.A. recalled that one time, Gordon “sprayed pee in

[her] mouth and said it’s what babies eat[.]” She described the pee as being white in color.

R.A. also reported that the abuse started “a long time ago.” Like her sisters, R.A. also expressed

fear about Gordon being out on bail.

{¶23} Both counselors acknowledged that they accept what children tell them at face

value and that it is not their role to evaluate whether the children are being truthful.

{¶24} Gordon testified in his defense. He denied engaging in any sexual conduct with

K.A. or R.A. and denied having any sexual contact with any of the three girls. He described his

relationship with the girls as very solid. He stated that K.A. often complained of pain following

her bladder surgery, and that after she raised the issue with him a couple times, he decided to

“look and see if there [were] any issues with it.” He explained that when he would play with the

girls, often he would chase them around, they would jump on the bed, and then he would jump

on the bed and tickle them. Gordon surmised that the girls may have seen him naked the times 12

when he came home around 3 or 4 in the morning and changed in his bedroom with the door

open. He stated that his bedroom was directly across from R.A.’s and S.A.’s room.

{¶25} With respect to February 9, 2015, Gordon indicated that he was “confused and

distraught” after Mother accused him of abusing the girls. He indicated that, when Mother asked

the girls to repeat the allegations, the girls did not really know what to say and did not really

convey anything. As to the one-party consent phone call, Gordon testified that he told Mother

what she wanted to hear and so he admitted to assaulting the girls. He indicated that he would

have said or done anything to keep his family together. He testified that he lied to both Mother

and to Detective Rubes in the interview in hopes that he could ultimately go home to his family.

Gordon opined that Mother may have coached the girls. He speculated that her motive could

have been related to their strained financial situation and/or because she might have wanted to

get Gordon out of the picture so that her new son could carry on her deceased husband’s family

name. Otherwise, he could think of no good reason why the girls would make up the

accusations.

{¶26} After reviewing the evidence in a light most favorable to the prosecution, we

conclude sufficient evidence was presented whereby a jury could conclude that Gordon engaged

in sexual conduct with K.A. and R.A. and that he had sexual contact with all three girls. See

R.C. 2907.02(A)(1)(b) and 2907.05(A)(4); see also State v. Pistawka, 9th Dist. Summit No.

27828,

(discussing that a trier of fact can infer that defendant’s purpose of

engaging in behavior was for sexual arousal or gratification based upon the type, nature, and

circumstances of the contact, and the personality of the defendant). There was evidence that

Gordon licked K.A.’s vagina, put his finger in it, and rubbed it. R.A.’s counselor testified that

R.A. told her that Gordon “put his vagina in [her] vagina” and “sprayed pee in [her] mouth and 13

said it’s what babies eat[.]” Additionally, R.A. testified that Gordon touched her private spot.

S.A. testified that Gordon “touched [her] private spot” with his fingers under her underwear.

{¶27} On appeal, Gordon has argued that his convictions must be reversed because

“there was no physical evidence linking [] Gordon to the crimes, the children did not personally

identify [] Gordon as the perpetrator during the trial, or were coached to say it was [] Gordon by

others; and that the children had been previously exposed to sexualized behavior by their

mother.” While Gordon’s arguments would seem more appropriately raised in the context of the

weight of the evidence, we will briefly address them here.

{¶28} Gordon has pointed to no case law requiring that the victims identify the

defendant in court in order for there to be sufficient evidence to support convictions for rape and

gross sexual imposition. Nonetheless, both K.A. and R.A. did identify Gordon in court as their

abuser. Further, the record is clear that the allegations of abuse all relate to conduct by Gordon.

{¶29} Gordon has also presented no case law establishing that physical evidence is

necessary to uphold convictions for rape and gross sexual imposition. See State v. Pemberton,

9th Dist. Lorain No. 05-CA-008660,

(noting that while physical evidence

would have strengthened the reliability of the victim’s statements, such was not required); State

v. Adams, 9th Dist. Lorain No. 05CA008685,

; State v. West, 10th Dist.

Franklin No. 06AP-11,

.

{¶30} Finally, Gordon argues that there was evidence that the girls were previously

exposed to pornography, and thus, the girls could have had knowledge of the sexual behaviors

discussed in their allegations outside of having actually experienced them. Thus, essentially, it

appears that Gordon argues that a reasonable fact finder could conclude that the girls lied

notwithstanding their knowledge of adult sexual behaviors. However, such an argument would 14

relate to the credibility of the girls’ testimony, which is not an appropriate consideration in a

sufficiency discussion. See State v. Taylor, 9th Dist. Summit No. 27273,

.

The evidence discussed above, if believed, was sufficient to support a finding of guilt on the

charged offenses.

{¶31} Gordon’s second assignment of error is overruled.

Manifest Weight

{¶32} A conviction that is supported by sufficient evidence may still be found to be

against the manifest weight of the evidence. State v. Thompkins,

(1997);

Eastley v. Volkman,

,

.

In determining whether a criminal conviction is against the manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of 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 conviction must be reversed and a new trial ordered.

State v. Otten,

(9th Dist. 1986). “When a court of appeals reverses a

judgment of a trial court on the basis that the verdict is against the weight of the evidence, the

appellate court sits as a ‘thirteenth juror’ and disagrees with the fact[-]finder’s resolution of the

conflicting testimony.”

, quoting Tibbs v. Florida,

(1982). An

appellate court should exercise the power to reverse a judgment as against the manifest weight of

the evidence only in exceptional cases.

.

{¶33} We cannot say that S.A.’s failure to identify Gordon in court when she was not

asked to do so and the lack of physical evidence in light of the accusations support the

conclusion that Gordon’s convictions are against the manifest weight of the evidence. Gordon

focuses much of his argument on what he believes were faults and problems with the

investigative process. He notes that Mother did not immediately contact the police and instead 15

contacted a counselor. In addition, he points out that, even though Children Services and the

police were aware of the allegations within the 72-hour window during which potential DNA

evidence could have been collected, the girls were not medically examined until approximately

two weeks later. However, the absence of physical evidence does not negate the evidence

indicative of abuse, including the testimony of the girls, the video interviews of the girls, the

testimony of their counselors, and Gordon’s own admissions which were played for the jury.

While Gordon also notes some uncertainties in the girls’ testimony, the CARE Center

interviewer stated that young children often cannot recall exact timeframes or how often

something has happened in light of their brain development. The interviewer averred that it does

not concern her when children say that they do not know or do not remember details because

sexual abuse disclosures are difficult for children to talk about.

{¶34} Moreover, Gordon alleges that there was testimony that the girls practiced what to

say and such further evidenced that they were coached. However, upon clarification from the

prosecutor, it appears that the girls were not instructed what precisely to say, and instead were

told the most important thing to do was to tell the truth. Finally, Gordon again points to the fact

that K.A. was exposed to pornography and discussed it with her sisters as a basis to question the

veracity of the girls’ testimony. While it is possible that the exposure could have provided the

girls with knowledge of adult sexual behavior, we remain mindful that it is unclear what

precisely K.A. was exposed to, and what exactly she shared with her sisters. Further, K.A. and

her sisters could have seen pornographic images and nonetheless been sexually assaulted by

Gordon. Ultimately, the jury had to decide whether it found the girls to be credible. The jury

heard that the girls had a good relationship with Gordon and that they loved him. While the

family was under financial stress, there was no evidence that Mother had a strong compelling 16

reason to encourage the girls to fabricate the allegations. Instead, the jury heard Gordon

essentially admit to inappropriate conduct in the phone call and interview and then testify that he

had lied during the call and interview. We remain mindful that the jury had an opportunity to

view the witnesses and “was in the best position to assess the credibility of the evidence

presented by the parties at trial.” State v. Klingel, 9th Dist. Lorain No. 15CA010876, 2017-

Ohio-1183, ¶ 22. “[T]his Court will not overturn the [] verdict[s] on a manifest weight of the

evidence challenge simply because the jury chose to believe certain witnesses’ testimony.”

(Internal quotations and citations omitted.) State v. Binford, 9th Dist. Summit No. 27950, 2016-

Ohio-7678, ¶ 10. After a thorough and independent review of the entire record, we cannot say

that a manifest miscarriage of justice occurred when the jury found Gordon guilty of the charged

offenses.

{¶35} Gordon’s third assignment of error is overruled.

ASSIGNMENT OF ERROR I

THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ALLOWING THE STATE TO INTRODUCE INTO EVIDENCE A PRIVATE RECORDED PHONE CALL BETWEEN A HUSBAND AND A WIFE IN VIOLATION OF THE SPOUSAL IMMUNITY STATUTE.

{¶36} Gordon argues in his first assignment of error that the trial court committed

reversible error in allowing the State to play the one-party consent phone call between Mother

and Gordon in violation of the spousal privilege statute. The State introduced the call into

evidence through Mother’s testimony. On appeal, Gordon has not challenged Mother’s

testimony about the phone call, only the introduction of the phone call itself.

{¶37} We begin by noting that Gordon has only raised issues of spousal privilege, not

spousal competency. See State v. Wilson, 3d Dist. Putnam No. 15-05-20,

(discussing the difference). R.C. 2945.42 governs the availability and extent of the spousal 17

privilege in criminal cases. See id. at ¶ 11. “The R.C. 2945.42 privilege belongs to the

nontestifying spouse.” State v. Perez,

,

. R.C.

2945.42 provides in relevant part that:

Husband or wife shall not testify concerning a communication made by one to the other, or act done by either in the presence of the other, during coverture, unless the communication was made or act done in the known presence or hearing of a third person competent to be a witness, or in case of personal injury by either the husband or wife to the other, or rape or the former offense of felonious sexual penetration in a case in which the offense can be committed against a spouse, or bigamy, or failure to provide for, or neglect or cruelty of either to their children under eighteen years of age or their physically or mentally handicapped child under twenty-one years of age, violation of a protection order or consent agreement, or neglect or abandonment of a spouse under a provision of those sections. The presence or whereabouts of the husband or wife is not an act under this section. The rule is the same if the marital relation has ceased to exist.

The purpose of the statute is “to promote marital peace[.]” (Emphasis omitted.) State v.

Mowery,

(1982). “The general thrust of judicial policy is to construe

statutory privileges narrowly: [T]hey impede the search for truth and contravene the principle

that the public has a right to everyone’s evidence.” (Internal quotations and citations omitted.)

State v. Nowlin, 5th Dist. Muskingum No. CT2012-0015,

.

{¶38} Gordon’s counsel filed a motion in limine to exclude the phone call and objected

to its presentation to the jury at trial. The trial court denied the motion concluding that the

parties were not living in coverture, that the communication was not confidential, and that the

communication fell within the exception concerning neglect or cruelty to the children.

{¶39} We note that the Ohio Supreme Court has concluded that the admission of spousal

communications, such as recorded jailhouse phone calls between the spouses, introduced by

means other than the other spouse’s testimony, does not violate R.C. 2942.42. See

. Accordingly, there is an argument that the introduction of the phone call itself in this case

would not amount to testimony as contemplated by Perez. See id. at ¶ 110-122. However, 18

because the phone call was introduced via Mother’s testimony, it is arguable that its admission

could nonetheless violate R.C. 2945.42. See id. at ¶ 122 (holding that, “[b]ecause the jailhouse

conversations were not introduced by way of [Wife’s] testimony, * * * their admission did not

violate R.C. 2945.42[]”) (Emphasis added.).

{¶40} Even assuming that the spousal privilege was otherwise applicable, we note that

other courts have previously concluded that acts of sexual assault against children under the age

of 18 can fall within the neglect or cruelty exception. See State v. Chaney, 3d Dist. Seneca No.

13-07-30,

; Wilson at ¶11-13; State v. Munguia, 6th Dist. Lucas No. L-88-

144,

, *4 (Oct. 6, 1989); State v. Berezoski, 2d Dist. Montgomery No. 9568,

, *37 (Dec. 17, 1986). While not expressly addressing the issue of whether

sexual assaults amounted to neglect or cruelty, this Court implicitly agreed that it did in State v.

Paxton, 9th Dist. Lorain No. 91CA005011,

, *1 (Aug. 14, 1991). Therein, we

concluded that, in a case involving the rape of the defendant’s step-child, the language “neglect

or cruelty of either to their children under eighteen years of age” included step-children, and

affirmed the trial court’s decision allowing the testimony of the wife.

{¶41} Further, even if this Court were to conclude that the evidence was privileged and

inadmissible, Gordon has failed to demonstrate that the error was not harmless. See Crim.R.

52(A). In addition to the admissions made during the phone call with his wife, Gordon made

similar admissions during his interview with police. The admissibility of that interview has not

been challenged on appeal.

{¶42} Given all of the foregoing, we conclude no reversible error occurred and overrule

Gordon’s first assignment of error. 19

ASSIGNMENT OF ERROR IV

THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR WHEN IT SENTENCED MR. GORDON WITHOUT PROPERLY GIVING HIM ALL THE REQUIRED NOTIFICATIONS AS REQUIRED BY R.C. 2929.19(B)(4) AND CONCERNING POST-RELEASE CONTROL.

{¶43} Gordon argues in his fourth assignment of error that the trial court erred when it

failed to provide the required post-release control notifications at the sentencing hearing.

Specifically, Gordon asserts that the trial court did not inform him of the mandatory nature of

post-release control and failed to include the consequences of violating post-release control

outlined in R.C. 2929.141(A)(1). While Gordon also discusses community control notification

issues in the body of his argument, Gordon was not subject to community control and those

arguments will be disregarded.

{¶44} This Court has held that

[I]n order to comply with separation-of-powers concerns and to fulfill the requirements of the post[-]release-control-sentencing statutes, * * * a trial court must provide statutorily compliant notification to a defendant regarding post[- ]release control at the time of sentencing. This includes notifying the defendant of the details of the post[-]release control and the consequences of violating post[- ]release control. The trial court must also incorporate into the sentencing entry the post[-]release-control notice to reflect the notification that was given at the sentencing hearing[,] which includes incorporating the consequences of violating post-release control.

(Internal quotations omitted.) State v. Adams, 9th Dist. Lorain No. 14CA010709, 2016-Ohio-

336, ¶ 6. “[W]hen a trial court fails to properly impose post-release control, that portion of its

sentence is void and only the offending portion of the sentence is subject to review and

correction.” (Internal quotations and citations omitted.) State v. West, 9th Dist. Summit No.

28051,

.

{¶45} At the sentencing hearing, the trial court told Gordon that, “if you were to ever get

out of prison, when you are released, you will be on five years of post-release control.” Gordon 20

argues that this notification is non-compliant because it does not use the word mandatory. It is

true that Gordon would be subject to five years of mandatory post-release control if he were

released from prison. See R.C. 2967.28(B)(1). However, we conclude that the trial court’s use

of the word “will” informed Gordon of the mandatory nature of his term of post-release control.

See State v. Grimes, Slip Opinion No.

(“The court at a sentencing hearing

must notify the offender that he or she ‘will’ or ‘may’ ‘be supervised under section 2967.28 of

the Revised Code after the offender leaves prison if the offender is being sentenced for’ a felony.

R.C. 2929.19(B)(2)(c) and (d).”); State v. Bloomer,

,

(“Despite any differences between R.C. 2929.191 and our holdings in Jordan, Hernandez, and

Cruzado, at their core, each fundamentally requires a court imposing mandatory post[-]release

control to include in the sentencing entry a statement that an offender convicted of a first-or

second-degree felony offense will be subject to post[-]release control after leaving prison.”)

(Emphasis sic.); see also State v. Martin, 9th Dist. Summit No. 24534,

, ¶ 5

(noting that use of the word “may” in the sentencing does not “clearly indicate that Martin will

be subject to a mandatory term of post-release control of three years[]”); State v. Rucker, 1st

Dist. Hamilton No. C-150434,

(“The trial court’s statement to Rucker that

‘you’ll be on a period of supervision’ was sufficient to notify Rucker of the mandatory nature of

his post[-]release control.”).

{¶46} With respect to whether the trial court was required to notify Gordon at the

sentencing hearing of the consequences of violating post-release control outlined in R.C.

2929.141(A)(1), we note that districts are split on the issue and it is currently being reviewed by

the Supreme Court of Ohio. See State ex rel. Cornwall v. Sutula,

, 2016- 21

Ohio-7652, ¶ 10 (acknowledging the split); State v. Brown,

, 2016-Ohio-

8438.

{¶47} The Supreme Court summarized the issue as follows: “Whether the post-release

control notification of R.C. 2929.19(B)(2)(e) must include notification of the penalty provisions

in R.C. 2929.141(A)(1)-(2), specifically, whether a trial court must inform an offender at the

time of sentencing that the commission of a felony during a period of post-release control

permits a trial court to impose a new prison term for the violation to be served consecutively

with any prison term for the new felony.” Brown. It is important to note that R.C.

2929.19(B)(2)(e) contains a notification requirement, whereas R.C. 2929.141(A) contains no

such requirement.

{¶48} Recently, in Grimes, in analyzing what the trial court is required to include in a

sentencing entry with respect to post-release control, the Supreme Court also discussed the post-

release control notifications required at the sentencing hearing. See Grimes, Slip Opinion No.

. Notably, the discussion did not include R.C. 2929.141(A).

{¶49} This Court has not precisely addressed the issue, although we have spoken on the

topic in other contexts. In State v. McDowell, 9th Dist. Summit No. 26697,

, the

defendant asked this Court to conclude that, in order for him to be sentenced to an additional 12

months for violating post-release control, the jury had to find that he was in fact on post-release

control. See id. at ¶ 12. In discussing the issue, we stated:

When an offender commits a felony during a period on post-release control, R.C. 2929.141(A)(1) permits a trial court to terminate post-release control and impose a new prison term for the violation of post-release control to be served consecutively with any prison term imposed for the new felony. R.C. 2929.141(A)(1). A trial court must inform an offender at the time of sentencing that this consequence may follow from a violation of post-release control. R.C. 2929.19(B)[(2)](e). 22

Id. at ¶ 13.

{¶50} To the extent this Court stated that R.C. 2929.19(B) required a notification

concerning the consequences in R.C. 2929.141(A)(1), the language was dicta and not essential to

our holding. Further, in light of the language in Grimes, Slip Opinion No.

, we are not inclined to expand the reach of McDowell. Subsequently, in State v. Mundy, 9th

Dist. Medina No. 15CA0001-M,

, a case involving a motion to vacate a

void sentence following a direct appeal, this Court concluded that, because R.C. 2929.141(A)(1)

does not include a mandatory notification requirement, “the trial court’s failure to discuss R.C.

2929.141 at the 2010 sentencing hearing [did] not render Mundy’s sentence void.”

In so

doing, this Court relied on opinions from the Eighth, Twelfth, and Seventh Districts. See

In

light of the absence of a notification requirement in R.C. 2929.141(A), we continue to hold that a

trial court’s failure to give an advisement at the sentencing hearing pertaining to the penalties

contained in R.C. 2929.141(A) does not render the sentence void, and we additionally conclude

that it is not reversible error. While “the better practice would be to include notification of the

potential implications of R.C. 2929.141 when notifying defendants of the other potential

implications of post[-]release control[]” under the current state of the law, we cannot say that

doing so is required. State v. Mullins, 12th Dist. Butler No. CA2007-01-028,

.

{¶51} Gordon’s fourth assignment of error is overruled.

ASSIGNMENT OF ERROR V

THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR WHEN IT SENTENCED DEFENDANT TO CONSECUTIVE TERMS WITHOUT STRICTLY COMPLYING WITH R.C. 2929.14(C). 23

{¶52} Gordon argues in his fifth assignment of error that the trial court erred when it

sentenced him to consecutive prison terms without complying with R.C. 2929.14(C). This Court

agrees.

{¶53} “The Supreme Court of Ohio in State v. Bonnell held that, ‘[i]n order to impose

consecutive terms of imprisonment, a trial court is required to make the findings mandated by

R.C. 2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing

entry, but it has no obligation to state reasons to support its findings.’” State v. Redmyer, 9th

Dist. Medina No. 15CA0012-M,

, quoting Bonnell,

,

, at syllabus.

{¶54} R.C. 2929.14(C)(4) states:

If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses to the public, and if the court also finds any of the following:

(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post- release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender’s conduct.

(c) The offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.

{¶55} Here, while the trial court included the required findings in the sentencing entry, it

failed to make those findings at the sentencing hearing. “When a trial court imposes consecutive

sentences without making the R.C. 2929.14(C)(4) findings at the sentencing hearing, the remedy 24

is to remand the matter for resentencing.” State v. Williams, 9th Dist. Medina No. 14CA0072-M,

, ¶ 9. Accordingly, Gordon’s fifth assignment of error is sustained and the

matter is remanded for resentencing.

ASSIGNMENT OF ERROR VI

THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN SENTENCING MR. GORDON FOR GROSS SEXUAL IMPOSITION AS A FELONY OF THE THIRD DEGREE INSTEAD OF A FELONY OF THE FOURTH DEGREE, BECAUSE THE JURY VERDICT FORM DID NOT INCLUDE THE DEGREE OF THE OFFENSE, NOR ANY AGGRAVATING ELEMENTS.

ASSIGNMENT OF ERROR VII

MR. GORDON WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL WHEN HIS TRIAL COUNSEL FAILED TO ARGUE THAT THE TRIAL COURT SHOULD HAVE SENTENCED MR. GORDON FOR GROSS SEXUAL IMPOSITION AS A FOURTH DEGREE FELONY.

{¶56} Gordon argues in his sixth assignment of error that the trial court committed plain

error in sentencing him for gross sexual imposition as a felony of the third degree instead of a

felony of the fourth degree when the verdict form did not include the degree of the offense or any

aggravating factors. Gordon argues in his seventh assignment of error that he was denied the

effective assistance of counsel when trial counsel failed to argue that Gordon should have been

sentenced for gross sexual imposition as a fourth degree felony.

{¶57} Pursuant to Crim.R. 52(B), “[p]lain errors or defects affecting substantial rights

may be noticed although they were not brought to the attention of the court.” “To constitute

plain error, the error must be obvious and have a substantial adverse impact on both the integrity

of, and the public’s confidence in, the judicial proceedings.” Klingel,

. “A

reviewing court must take notice of plain error only with the utmost caution, and only then to

prevent a manifest miscarriage of justice.”

“This Court may not reverse the judgment of the 25

trial court on the basis of plain error, unless appellant has established that the outcome of trial

clearly would have been different but for the alleged error.”

{¶58} Gordon’s argument is based upon State v. Pelfrey,

, 2007-

Ohio-256 and R.C. 2945.75(A)(2) . “In [Pelfrey], the Supreme Court of Ohio determined that

‘[p]ursuant to the clear language of R.C. 2945.75, a verdict form signed by a jury must include

either the degree of the offense of which the defendant is convicted or a statement that an

aggravating element has been found to justify convicting a defendant of a greater degree of a

criminal offense.’” State v. Hasenyager, 9th Dist. Summit No. 27756,

,

quoting Pelfrey at syllabus. “‘Otherwise, a guilty verdict constitutes a finding of guilty of the

least degree of the offense charged.’” Hasenyager at ¶ 24, quoting R.C. 2945.75(A)(2). “Pelfrey

applies when ‘the presence of one or more additional elements makes an offense one of more

serious degree.’” State v. Edwards, 9th Dist. Lorain No. 12CA010274,

,

quoting R.C. 2945.75(A).

{¶59} Gordon argues that, because the verdict forms in the instant matter did not state

the degree of the offense or include any aggravating elements, he should have been sentenced to

fourth degree felony gross sexual imposition, as that is the least degree of gross sexual

imposition.

{¶60} Gordon was found guilty of violating three counts of R.C. 2907.05(A)(4). A

violation of R.C. 2907.05(A)(4) is a felony of the third degree. R.C. 2907.05(C)(2). This Court

has previously concluded that “[t]here are no additional elements that will enhance this offense

to a higher degree. R.C. 2907.05 does contain other subsections, but each has their own separate

elements. * * * Failure to prove any of the[] elements would have resulted in an acquittal, not a

conviction of a lesser degree of gross sexual imposition.” Hasenyager at ¶ 27, quoting Edwards 26

at ¶ 35. Thus, Pelfrey and R.C. 2945.75(A)(2) are inapplicable to convictions for violations of

R.C. 2907.05(A)(4). Hasenyager at ¶ 27; Edwards at ¶ 36.

{¶61} Therefore, based upon Gordon’s arguments, he has not demonstrated any error, let

alone plain error. See Hasenyager at ¶ 27.

{¶62} Gordon’s sixth assignment of error is overruled.

{¶63} With respect to Gordon’s claim of ineffective assistance of counsel, as we

concluded above that the trial court did not err in sentencing Gordon to a third degree felony,

trial counsel likewise was not ineffective in failing to object to the trial court’s sentence on that

basis. See State v. Daniels, 9th Dist. Summit No. 26406,

.

{¶64} Gordon’s seventh assignment of error is overruled.

III.

{¶65} Gordon’s first through fourth, sixth, and seventh assignments of error are

overruled. Gordon’s fifth assignment of error is sustained and the matter is remanded for

proceedings consistent with this opinion.

Judgment affirmed in part, reversed in part, and cause remanded.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the 27

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed equally to both parties.

DONNA J. CARR FOR THE COURT

SCHAFER, P. J. TEODOSIO, J. CONCUR.

APPEARANCES:

NEIL P. AGARWAL, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.