[Cite as State v. Allgood,

.]

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

STATE OF OHIO C.A. No. 17CA011224

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE NATHANIEL D. ALLGOOD COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO Appellant CASE No. 17CR095640

DECISION AND JOURNAL ENTRY

Dated: March 4, 2019

CALLAHAN, Judge.

{¶1} Appellant, Nathaniel Allgood, appeals his convictions in the Lorain County

Court of Common Pleas. This Court affirms.

I.

{¶2} On January 12, 2017, A.S. returned home from work and found Mr.

Allgood, his girlfriend’s father, intoxicated and lying on the couch. A.S. decided to take

a nap in an upstairs room, leaving his girlfriend D.H., their infant son, Mr. Allgood, and

the couple’s toddler son A.K.S. downstairs. Shortly thereafter, A.S. became concerned

and decided to look around the house for Mr. Allgood and A.K.S. He found Mr. Allgood

in a bathroom with A.K.S. Mr. Allgood held his genitals in one hand and his other hand

rested on the toddler’s neck. A.K.S.’s pull-up diaper had been completely removed. A.S.

removed A.K.S. from the room, called for D.H., and physically attacked Mr. Allgood. {¶3} D.H. called the police to report a suspected sexual assault. Mr. Allgood

was arrested and charged with two counts of attempted rape in violation of R.C.

2907.02(A)(1)(b) and R.C. 2907.02(A)(2), respectively. Each rape charge was

accompanied by a penalty enhancement specifying that the victim was under ten years of

age, as provided by R.C. 2907.02(B). Mr. Allgood was also charged with two counts of

gross sexual imposition in violation of R.C. 2907.05(A)(4) and R.C. 2907.05(B),

respectively. Before the scheduled trial date, the State dismissed one count of gross

sexual imposition, and the trial court allowed the State to amend the other count to

attempted gross sexual imposition. The trial court also granted Mr. Allgood’s motion in

limine to exclude references to his criminal record.

{¶4} During the jury trial of this case, A.S. testified that he was surprised to find

Mr. Allgood at his home on the date in question. During cross-examination, defense

counsel asked A.S. whether he was angry because Mr. Allgood disapproved of his

relationship with D.H. A.S. denied it, then volunteered that he did not like having Mr.

Allgood around because “he got sexual assaults towards his own daughter.” Defense

counsel moved for a mistrial; the trial court denied the motion and offered a curative

instruction instead. Defense counsel moved for a mistrial again, however, based on the

substance of the curative instruction. The trial court also denied that motion and

provided a second curative instruction.

{¶5} The jury found Mr. Allgood not guilty of attempted gross sexual

imposition, but guilty of both charges of attempted rape. The trial court merged those convictions for purposes of sentencing and sentenced Mr. Allgood to ten years to life in

prison. Mr. Allgood filed this appeal.

II.

ASSIGNMENT OF ERROR NO. 1

THE STATE OF OHIO FAILED TO INTRODUCE SUFFICIENT EVIDENCE TO PROVE BEYOND A REASONABLE DOUBT THAT APPELLANT COMMITTED ATTEMPTED RAPE.

{¶6} Mr. Allgood’s first assignment of error is that his conviction for attempted

rape is not supported by sufficient evidence because the State did not introduce evidence

that his behavior constituted a substantial step toward engaging in sexual conduct with

A.K.S.

{¶7} “Whether a conviction is supported by sufficient evidence is a question of

law that this Court reviews de novo.” State v. Williams, 9th Dist. Summit No. 24731,

2009–Ohio–6955, ¶ 18, citing State v. Thompkins,

(1997). The

relevant inquiry is whether the prosecution has met its burden of production by

presenting sufficient evidence to sustain a conviction.

(Cook, J.,

concurring). In reviewing the evidence, we do not evaluate credibility, and we make all

reasonable inferences in favor of the State. State v. Jenks,

(1991).

The State’s evidence is sufficient if it allows the trier of fact to reasonably conclude that

the essential elements of the crime were proven beyond a reasonable doubt.

{¶8} R.C. 2907.02(A)(1)(b) provides that “No 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.” R.C. 2907.02(A)(2) provides that “No person shall engage in sexual

conduct with another when the offender purposely compels the other person to submit by

force or threat of force.” Each form of committing the offense of rape requires “sexual

conduct,” which is defined as “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.” R.C.

2907.01(A).

{¶9} An “attempt” is “conduct that, if successful, would constitute or result in

the offense.” R.C. 2923.02(A). Such conduct must “‘constitut[e] a substantial step in a

course of conduct planned to culminate in [the] commission of the crime.’” (Alterations

added.) State v. Group,

,

, quoting State v.

Woods,

(1976), paragraph one of the syllabus. In order for conduct to

rise to the level of a substantial step, it must be “‘strongly corroborative of the actor’s

criminal purpose.’”

, quoting Woods at paragraph one of the syllabus.

{¶10} When a defendant is charged with attempted rape, the defendant’s conduct

must demonstrate the purpose to commit rape: it must be a substantial step toward

engaging in sexual conduct, not merely sexual contact. State v. Davis,

(1996). “Attempted rape requires that the actor * * * commit some act that

‘“convincingly demonstrate[s]”’ the intent “to engage in sexual conduct, as defined by

statute.”

quoting State v. Heinish,

(1990), quoting Woods,

. The removal of a victim’s clothing standing alone, for example, is insufficient evidence of attempted rape.

. See also

.

Additional evidence that demonstrates that the defendant intended to commit rape—as

opposed to another sexual offense—is also required.

. See also State v.

Brown, 8th Dist. Cuyahoga No. 98540,

(sufficient evidence of the

intention to commit rape existed when the defendant was found standing over the victim,

attempting to remove her pants, with his own pants partially removed); State v. Lucas,

5th Dist. Tuscarawas No. 2005AP090063,

(sufficient evidence

of attempted rape existed when the defendant voiced his desire to have sex with the

victim and attempted to remove the victim’s pants during a struggle). Compare State v.

Jones, 8th Dist. Cuyahoga No. 82978,

, ¶ 20-22 (evidence indicating that

the defendant grabbed the victim by the back of the neck, held a knife to her throat, and

ordered her to remove her clothing was not sufficient to demonstrate attempt to commit

rape).

{¶11} “The act required need not constitute the last possible event short of

completing the crime,” however. State v. Hartsook, 9th Dist. Summit No. 14769,

, *2 (Mar. 6, 1991), citing State v. Farmer,

, 216 (1951) and

State v. Brooks,

(1989). In addition, for purposes of R.C.

2907.02(A)(1)(b), the defendant’s conduct should be considered in light of the tender age

of the victim. See, e.g., State v. Powell,

(1990) (concluding that

“ordering this seven-year-old child to take off her clothes strongly corroborates [the

defendant’s] criminal purpose to engage in sexual conduct with her.”). {¶12} In this case, there is sufficient evidence that, when viewed in the light most

favorable to the State, demonstrates that Mr. Allgood’s actions constituted a substantial

step toward engaging in sexual conduct with A.K.S. The child’s father, A.S., testified

that after he went upstairs to lie down, he heard Mr. Allgood say, “Give me a real hug,

give me a real hug” three or four times. A.S. recalled that something about the situation

made him uncomfortable, so he got up and walked around the house looking for Mr.

Allgood and A.K.S. A.S. noted that the house was quiet at the time. He testified that

after searching most of the house and looking outside, he walked toward a small

bathroom. Once there, he found Mr. Allgood and A.K.S. behind the door, visible through

the crack between the door and the doorframe. A.S. emphasized that had they been using

the toilet, they would have been visible from the doorway itself.

{¶13} A.S. testified that when he found Mr. Allgood and A.K.S., A.K.S.’s pull-up

diaper had been completely removed, and Mr. Allgood held his own penis in one of his

hands. He recalled that Mr. Allgood’s other hand was on A.K.S.’s neck and shoulders

with Mr. Allgood’s fingers wrapped behind the two-year-old boy’s neck. A.S. estimated

A.K.S.’s height at the time of the incident relative to his own height of five feet, nine

inches as about the level of the bottom of a pocket on his jeans. At trial, A.S. and the

counsel for the State demonstrated the relative positions in which A.S. found Mr. Allgood

and A.K.S. in the bathroom, although a description of this demonstration has not been

preserved as part of the record. A.S. also testified that after his physical altercation with

Mr. Allgood that followed, he asked, “why did [you] do it[?]” and Mr. Allgood “said he

didn’t know.” Although Mr. Allgood reacted to A.S.’s appearance by insisting that he was helping A.K.S. to toilet train, A.S. testified that A.K.S. was capable of using his

training toilet independently at the time, that his training toilet was undisturbed in the

location where it was stored, and that it was apparent that the bathroom toilet had not

recently been used.

{¶14} “Sexual conduct,” as used in R.C. 2907.02(A), includes fellatio. R.C.

2907.01(A). One could reasonably infer from A.S.’s testimony and the accompanying

demonstration that he found Mr. Allgood, who held his penis in his hand, at a distance

less than arms’ length from A.K.S., and that Mr. Allgood’s hand rested behind the child’s

neck and shoulder. From this testimony, the trier of fact could reasonably conclude

beyond a reasonable doubt that Mr. Allgood’s conduct constituted a substantial step

toward engaging in sexual conduct with A.K.S. and, therefore, attempted rape.

{¶15} Mr. Allgood’s first assignment of error is overruled.

ASSIGNMENT OF ERROR NO. 2

THE CONVICTION FOR ATTEMPTED RAPE WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶16} In his second assignment of error, Mr. Allgood argues that his conviction

for attempted rape is against the manifest weight of the evidence. This Court does not

agree.

{¶17} When considering whether a conviction is against the manifest weight of

the evidence, this 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). A reversal on this basis is

reserved for the exceptional case in which the evidence weighs heavily against the

conviction.

citing State v. Martin,

(1st Dist. 1983).

{¶18} Mr. Allgood’s first argument is that his conviction is against the manifest

weight of the evidence because the testimony against him consisted exclusively of

circumstantial evidence gleaned from the testimony of A.K.S.’s father, who was

motivated by bias against Mr. Allgood. In support of this argument, Mr. Allgood has

pointed to A.S.’s acknowledgment that Mr. Allgood was not supposed to be in the house

that he shared with A.K.S.’s mother, and he maintains that “[A.S.] wanted to get Allgood

out of the picture and was willing to exaggerate and lie about what happened with his son

to have Allgood convicted of the crime.”

{¶19} A jury, however, can take issues related to potential bias into account and

determine how much weight to give testimony as a result. See State v. Culp, 9th Dist.

Summit No. 26188,

. In this case, A.S. acknowledged during direct

examination that Mr. Allgood was not supposed to be in the residence, and he described

his heightened emotional state after he found Mr. Allgood with A.K.S. as “crazy,” noting

that he “almost lost it.” He also explained that his reaction was motivated by personal

experience:

Because I been [sic] through the same thing myself. You know, my – my – my biological mom had babies by my granddad. That’s how we all ended up in foster care and stuff like that. From people like him. And I wasn’t going through it no more. During his cross-examination, A.S. affirmed that he did not like having Mr. Allgood

around, and defense counsel’s line of questioning also suggested that Mr. Allgood did not

approve of A.S.’s relationship with his daughter.

{¶20} This Court must “consider[] the credibility of witnesses” as part of our

manifest weight review. Thompkins,

, quoting Martin,

. Nonetheless, this Court is mindful of the well-established principle that a

trier of fact enjoys the best position to assess the credibility of witnesses. State v. Rivera,

9th Dist. Lorain No. 18CA011263,

, quoting State v. Johnson, 9th

Dist. Summit No. 25161,

, ¶ 15. The jury heard all of the testimony in

this case, including testimony demonstrating A.S.’s potential bias, and determined the

weight that it would afford to that testimony. See Culp at ¶ 25. This Court cannot

conclude that the weight of the evidence weighs against Mr. Allgood’s conviction on that

basis.

{¶21} Mr. Allgood has also argued that his explanation for the events should be

afforded more weight because the evidence against him was merely circumstantial. In

this respect, this Court notes that “[c]ircumstantial evidence and direct evidence

inherently possess the same probative value[.]” Jenks,

, at paragraph

one of the syllabus. Mr. Allgood’s explanation was that he was “teaching [A.K.S.] how

to potty train.” Both A.S. and D.H., however, testified that A.K.S. already knew how to

use the training toilet independently. A.S. described the process that A.K.S. followed

when he needed to urinate in detail and noted that the training toilet that A.K.S. used was

undisturbed from its customary location when he found Mr. Allgood in the bathroom with A.K.S. A.S. noted that the bathroom toilet had not been recently used and testified

that had either of them been using the toilet when he approached the bathroom, he would

have seen it. D.H. confirmed that when she entered the bathroom, she also noted that the

toilet was not running as though it had been flushed recently and that there was no urine

in the toilet.

{¶22} Given the evidence in this case, this Court cannot conclude that this is the

exceptional case in which the evidence weighs heavily against the conviction. Mr.

Allgood’s second assignment of error is overruled.

ASSIGNMENT OF ERROR NO. 3

THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED THE APPELLANT’S RIGHT TO DUE PROCESS AND A FAIR TRIAL BY FAILING TO GRANT HIS MOTION FOR A MISTRIAL.

{¶23} In his third assignment of error, Mr. Allgood argues that the trial court

abused its discretion by denying his motion for a mistrial after A.S. testified to matters

excluded by the trial court in limine. This Court does not agree.

{¶24} A mistrial must be declared “only when the ends of justice so require and a

fair trial is no longer possible.” State v. Franklin,

(1991), citing

Illinois v. Somerville,

(1973) and Arizona v. Washington,

(1978). Because “the trial judge is in the best position to determine

whether the situation in [the] courtroom warrants the declaration of a mistrial[,]” the

decision is one committed to the discretion of the trial court. State v. Glover,

(1988). This Court reviews the denial of a motion for mistrial for an abuse

of discretion. State v. Halsell, 9th Dist. Summit No. 24464,

, ¶ 6, citing State v. Patel, 9th Dist. Summit No. 24024,

. “In analyzing whether

a defendant was deprived of a fair trial, an appellate court must determine whether,

absent the improper remarks, the jury would have found the appellant guilty beyond a

reasonable doubt.” Columbus v. Aleshire,

,

, ¶ 42

(10th Dist.), citing State v. Maurer,

(1984).

{¶25} When a defendant moves for a mistrial after testimony related to “other

crimes, wrongs, or acts” under Evid.R. 404(B), a trial court does not abuse its discretion

by denying the motion if the reference to other acts was brief and isolated, the remarks

were followed by a curative instruction, and the likelihood of prejudice is low. See State

v. Trimble,

,

, citing State v. Garner,

(1995) and State v. Treesh,

(2001). In such

cases, this Court presumes that the jury follows the trial court’s instructions. See State v.

Loza,

(1994), citing State v. Henderson,

(1988).

{¶26} In this case, the reference to impermissible evidence under Evid.R. 404(B)

was brief, and counsel for Mr. Allgood objected immediately:

Q: So you started off by saying you came home, and you’re pissed that my client, the grandfather of [A.K.S.], is at your house; right?

A: Um-hum.

Q: Is that because my client doesn’t think you’re good for his daughter? A: No. Just because he always at the house drunk, and he got sexual assaults towards his own daughter; so that’s why I don’t like him around.1

After a lengthy discussion with counsel at sidebar, the trial court sustained the objection,

instructed the jury to disregard the statement made by A.S, and took the further step of

informing the jury that the statement made by A.S. “may, in fact, not be accurate or

truthful.” To the extent that Mr. Allgood alleges error in connection with the substance

of the curative statements, this Court notes no abuse of discretion on the part of the trial

court. The trial court’s ruling on the motions for a mistrial and the lengthy curative

instructions demonstrate that the trial court wrestled with the potential impact of A.S.’s

statement, balancing it with the “‘ends of public justice.’”

. See also

. The trial court’s statements bear no indication of an abuse of discretion.

See generally Nakoff v. Fairview Gen. Hosp.,

(1996) (noting that

an abuse of discretion is demonstrated by a “result [that] must be so palpably and grossly

violative of fact or logic that it evidences not the exercise of will but the perversity of

will, not the exercise of judgment but the defiance of judgment, not the exercise of reason

but instead passion or bias.”).

{¶27} This was also not a situation in which the defendant was deprived of the

possibility of a fair trial. “In determining whether a defendant was deprived of a fair trial,

a court must determine whether, absent the error or irregularity, ‘the jury would have

1 Although the circumstances that precipitated A.S.’s statement are not entirely clear from the record, it appears that A.S. had demonstrated that he was inclined to make statements harmful to Mr. Allgood during a previous court appearance, thus leading to the motion in limine. Nonetheless, it also appears that both the State and defense counsel were caught off guard by A.S.’s actual statement during trial. found the appellant guilty beyond a reasonable doubt.’” State v. Edwards, 9th Dist.

Summit No. 28164,

, quoting Aleshire,

,

, at ¶ 42. In this case, then, the question is whether the jury would have

found Mr. Allgood guilty of attempted rape had A.S.’s statement not been made. See

State v. Knight, 9th Dist. Wayne No. 15AP0019,

. Given the

evidence against him, as noted in this Court’s discussion of Mr. Allgood’s first and

second assignments of error, this Court cannot attribute Mr. Allgood’s conviction to

A.S.’s statement. See

{¶28} The trial court, therefore, did not abuse its discretion by denying Mr.

Allgood’s motion for a mistrial. His third assignment of error is overruled.

III.

{¶29} Mr. Allgood’s assignments of error are overruled. The judgment of the

Lorain County Court of Common Pleas is affirmed.

Judgment affirmed.

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 Lorain, 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 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.

LYNNE S. CALLAHAN FOR THE COURT

TEODOSIO, J. CONCURS.

SCHAFER, P. J. CONCURRING IN JUDGMENT ONLY.

{¶30} I must begrudgingly concur in judgment only as our appellate review is

constrained to the assignments of error as presented.

APPEARANCES:

DANIEL G. WIGHTMAN, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and BRIAN P. MURPHY, Assistant Prosecuting Attorney, for Appellee.