[Cite as State v. Deck,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

WARREN COUNTY

STATE OF OHIO, :

Appellee, : CASE NO. CA2020-10-066

: OPINION - vs - 9/13/2021 :

JAMES N. DECK, :

Appellant. :

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

David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, 520 Justice Drive, Lebanon, Ohio 45036, for appellee

Timothy J. McKenna, 125 East Court Street, Suite 950, Cincinnati, Ohio, 45202, for appellant

HENDRICKSON, J.

{¶ 1} Appellant, James Deck, appeals a decision of the Warren County Court of

Common Pleas finding him guilty of rape and sentencing him to life without parole in prison.

{¶ 2} A grand jury indicted Deck for one count of rape of a child under the age of

13 in violation of R.C.2907.02(A)(1)(b). The indictment further stated that the victim was

under the age of 10 at the time of the offense and that Deck purposely compelled the victim

to submit by force or threat of force. Deck waived his right to a jury trial and the case Warren CA2020-10-066

proceeded to a bench trial.

{¶ 3} At trial, the victim testified that he lived with Deck when he was 8 or 9 years

old. The victim described an incident in which Deck instructed him to go into the bedroom

and anally raped him. The victim did not tell anyone about the rape until several years later.

In his defense, Deck testified that the incident never happened and, through testimony and

cross-examination, advanced a theory that the victim made up the incident to create a bond

with a new friend.

{¶ 4} The trial court found Deck guilty as charged. At sentencing, the court

indicated that by statute, it had no other sentencing option and sentenced Deck to life in

prison without parole. Deck now appeals his conviction and sentence, raising four

assignments of error for our review. His first and second assignments of error challenge

the sufficiency and manifest weight of the evidence and will be discussed together.1

{¶ 5} THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT-

APPELLANT AS THERE WAS INSUFFICIENT EVIDENCE TO CONVICT.

{¶ 6} THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT-

APPELLANT BECAUSE THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF

THE EVIDENCE.

{¶ 7} Whether the evidence presented at trial is legally sufficient to sustain a verdict

is a question of law. State v. Thompkins,

, 1997-Ohio 52 (1997);

State v. Grinstead,

,

, ¶ 10, (12th Dist.). When

reviewing the sufficiency of the evidence underlying a criminal conviction, an appellate court

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

1. We note that appellant's brief presents the first and second assignments of error and numbers them as such, argues them together, then presents third and fourth assignments of error which the brief numbers as second and third assignments of error. As there are four enumerated assignments of error in the brief, we have designated them as such in this opinion.

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convince the average mind of the defendant's guilt beyond a reasonable doubt. State v.

Paul, 12th Dist. Fayette No. CA2011-10-026,

, ¶ 9. Therefore, "[t]he

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." State v. Jenks,

(1991), paragraph

two of the syllabus.

{¶ 8} A manifest weight of the evidence challenge, on the other hand, examines the

"inclination of the greater amount of credible evidence, offered at a trial, to support one side

of the issue rather than the other." State v. Barnett, 12th Dist. Butler No. CA2011-09-177,

, ¶ 14. To determine whether a conviction is against the manifest weight

of the evidence, the reviewing court must look at the entire record, weigh the evidence and

all reasonable inferences, consider the credibility of the witnesses, and determine whether

in resolving the 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. Graham, 12th Dist. Warren No. CA2008-07-095,

, ¶ 66.

"While appellate review includes the responsibility to consider the credibility of witnesses

and weight given to the evidence, 'these issues are primarily matters for the trier of fact to

decide.'" State v. Barnes, 12th Dist. Brown No. CA2010-06-009,

, ¶ 81,

quoting State v. Walker, 12th Dist. Butler No. CA2006-04-085,

.

{¶ 9} An appellate court, therefore, will overturn a conviction due to the manifest

weight of the evidence only in extraordinary circumstances when the evidence presented

at trial weighs heavily in favor of acquittal.

citing Thompkins,

.

Furthermore, although the legal concepts of sufficiency of the evidence and weight of the

evidence are both quantitatively and qualitatively different, "[a] determination that a

conviction is supported by the manifest weight of the evidence will also be dispositive of the

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issue of sufficiency." State v. Jones, 12th Dist. Butler No. CA2012-03-049,

.

{¶ 10} As discussed above, Deck was charged with rape in violation of R.C.

2907.02(A)(1)(b). This section provides "No person shall engage in sexual conduct with

another * * * when * * * the other person is less than thirteen years of age, whether or not

the offender knows the age of the other person." The indictment also stated that Deck

"purposely compelled the victim to submit by force or threat of force" and that the victim

was less than 10 years old at the time of the offense.

{¶ 11} At trial, the victim testified that in 2015 when he was 8 or 9 years old, he, his

mother, and his two sisters lived with Deck. The victim testified that his mother spent most

of the time sleeping in her bed and Deck was responsible for disciplining the children.

According to the victim, Deck acted like he was the children's dad and Deck would punish

the victim when he did something wrong. As punishment, Deck would hit the victim with a

belt, a studded belt or a wooden cane. The victim testified that one night, Deck told him to

go to his room and he followed the command because he was afraid of Deck and what

Deck would do if he didn't listen.

{¶ 12} Deck followed the victim into the room and told him to take off his clothes.

Deck then either told the victim to get on the floor on his hands and knees or pushed him

into that position. The victim testified that Deck then got on his knees, grabbed the victim's

lower hips, put his penis into the victim's "butt" and went back and forth with his hips. The

victim stated that it hurt, and he cried and told Deck to stop, but Deck shrugged it off. The

victim stated the incident lasted ten minutes at most and then Deck got up, put on his clothes

and told the victim not to tell anyone. The victim testified that he had a burning sensation

in his "butt" and it hurt, and he went to sleep crying. He indicated that he didn't tell anyone

because he was scared and his mother always took Deck's side.

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{¶ 13} About three weeks later, the victim was hospitalized because of aggressive

behavior, wetting the bed and alleged incidents of smearing feces on the wall. A children's

services caseworker testified that during the hospitalization, bruising on the victim's body

was noted and the children's services agency became involved. After an investigation,

abuse and neglect was substantiated. All the children were removed from the home and

the victim's paternal grandmother was granted custody. The case was eventually closed in

2017. The mother later regained custody of the children and the family moved to another

state.

{¶ 14} After the move, the victim was talking to a neighbor, who indicated that she

had been separated from her mother, and the victim indicated that he had been separated

from his mother for a while as well. The two discussed how they had both been abused

and how they coped with the abuse and separation from their mothers. The neighbor asked

the victim if he had ever been sexually abused and the victim responded that he had. The

victim's sister overheard the discussion and told the children's mother. The incident was

then reported to the police and Deck was arrested and charged with rape.

{¶ 15} In his defense, Deck testified that the incident never happened and that he

was blindsided by the allegations. He described several issues with the victim's story,

including the fact that the children and their mother had to have been in the small apartment

at the time and noises could be heard throughout because of echoes. On cross-

examination, Deck's attorney questioned the victim about why he did not tell anyone, even

after he felt safe. The defense also presented testimony from the children's services worker

and verified that although the victim described physical abuse, he did not report any sexual

abuse during the hospitalization or children's services investigation.

{¶ 16} Deck now argues that the evidence to support his conviction for rape was

insufficient and against the manifest weight of the evidence for several reasons. First, he

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argues that there was no showing of force or a threat of force.

{¶ 17} The element of "force" is defined in R.C. 2901.01(A) as "any violence,

compulsion, or constraint physically exerted by any means upon or against a person or

thing." However, the definition of "force" changes when the victim is a child, to account for

the fact that adults can compel children to submit to sexual conduct by means of

psychological coercion or use of authority over the child. State v. Grant, 12th Dist. Brown

Nos. CA2014-03-005, and CA2014-03-006,

, ¶ 20-23; State v. Eskridge,

(1988); State v. Dye,

,

(1998). "The force

and violence necessary to commit the crime of rape depends upon the age, size and

strength of the parties and their relation to each other." Eskridge at paragraph one of the

syllabus.

{¶ 18} When a child is a victim of a rape offense, the "force" requirement "need not

be overt and physically brutal, but can be subtle and psychological." Id. at 58-59; State v.

Grant, 12th Dist. Brown Nos. CA2014-03-005, CA2014-03-006,

, ¶ 20-23;

State v. Rankin, 12th Dist. Clinton No. CA2004-06-015,

. "A child's

will can be overcome by fear and duress when an important figure of authority tells the child

to do something, and commands the child not to tell anyone about it." Grant at ¶ 23. "When

the state proves that the child's will was overcome by fear or duress, the forcible element

of rape is established."

{¶ 19} In this case, the victim testified that Deck was responsible for disciplining him,

acted like he was the victim's father and would punish him when he did something wrong.

The victim described the type of physical punishment inflicted by Deck and stated that on

the night of the rape, he followed Deck's commands because he was afraid of Deck and

what Deck would do if he didn't listen. This evidence establishes the force element.

{¶ 20} In these assignments of error, Deck also presents several factual arguments,

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including an argument that the victim's story lacked specificity regarding the time of the

offense and was not corroborated in any way. He also argues the allegation came out after

five years, and only when talking to a girl, and the situation "snowballed" and then the victim

couldn't retract it. He further argues there were no statements to professionals or family,

no physical evidence, it is impossible that no one heard the offense taking place, and the

victim gave inconsistent descriptions.

{¶ 21} However, inconsistencies in the evidence alone do not mean that a decision

is against the manifest weight of the evidence. State v. McMullen, Butler App. No. CA2005-

09-414,

. When there is a conflict in the testimony of witnesses, it is

for the trier of fact to determine the weight and credibility to be given to such evidence.

State v. Marcum, 12th Dist. Butler No. CA2017-05-057,

, citing State

v. DeHass,

(1967), paragraph one of the syllabus. It is within the province

of the trier of fact to consider any inconsistencies in the testimony and resolve them

accordingly, believing all, part, or none of each witness's testimony." State v. Robinson,

12th Dist. Butler No. CA2018-08-163,

; State v. Lark, 12th Dist.

Fayette No. CA2018-03-004,

.

{¶ 22} The trial court heard all the testimony, including all of the inconsistencies and

issues Deck now raises. As the trier of fact, the court resolved these inconsistencies and

found Deck was guilty of rape. After reviewing the record and the issues involved in this

assignment of error, we find the court's determination was not against the manifest weight

of the evidence, and was therefore supported by sufficient evidence. Deck's first and

second assignments of error are overruled.

{¶ 23} THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL

COUNSEL AS GUARANTEED BY SECTION 10, ARTICLE 1 OF THE OHIO

CONSTITUTION AND THE SIXTH AND FOURTEENTH AMENDMENTS.

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{¶ 24} In his third assignment of error, Deck contends that trial counsel was

ineffective for failing to engage an independent expert to establish the lack of reliability in

late-disclosed sexual abuse.

{¶ 25} To prevail on an ineffective assistance of counsel claim, an appellant must

establish that (1) his trial counsel's performance was deficient and (2) he was prejudiced by

the deficient performance. Strickland v. Washington,

,

(1984). Trial counsel's performance will not be deemed deficient unless it "fell below

an objective standard of reasonableness."

. To show prejudice, the appellant

must prove there exists "a reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different."

. An appellant's

failure to satisfy one prong of the Strickland test negates a court's need to consider the

other. State v. Madrigal,

,

(2000).

{¶ 26} It is well established that the failure to call an expert and instead rely on cross-

examination does not constitute ineffective assistance of counsel. State v. Hunter,

,

; State v. Fuell, 12th Dist. Clermont No. CA2020-02-

008,

.

{¶ 27} Deck argues that an expert was necessary to establish that the victim's

disclosure several years after the event was unreliable. He argues a defense expert "could

have discredited the state's theory that 'victims of sexual abuse don't tell until they tell'" and

"could have cast doubt on the veracity, or at least the reliability" of the delayed allegations.

{¶ 28} However, Deck's argument that a defense expert was necessary to impeach

the victim's testimony is purely speculative. He fails to identify the expert witness who

should have been called or what the expert would have said. State v. Hunter,

,

. Moreover, this court has no way of knowing exactly how

an expert would testify given the facts of this case or whether an expert would have

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presented favorable testimony for Deck. Without this knowledge, there is no way to

determine if the expert testimony would be helpful to Deck's defense. In addition, there is

also the possibility that the testimony, or cross-examination of an expert on delayed

disclosure of sexual abuse, could have been damaging to Deck's defense.

Accordingly, we find trial counsel was not ineffective for failing to call an expert

witness on the unreliability of delayed disclosure of sexual abuse. Deck's third assignment

of error is overruled.

{¶ 29} THE TRIAL COURT INCORRECTLY APPLIED THE RAPE SENTENCING

SCHEME.

{¶ 30} In his final assignment of error, Deck argues that the trial court erred in

sentencing him to life in prison without the possibility of parole. He contends that the trial

court used the wrong statutory provision in sentencing him, determining that it did not have

discretion in the sentence imposed.

{¶ 31} An appellate court reviews an imposed sentence under the standard of review

set forth in R.C. 2953.08(G)(2), which governs all felony sentences. State v. Marcum,

,

; State v. Crawford, 12th Dist. Clermont No. CA2012-

12-088,

. Pursuant to that statute, an appellate court does not review

the sentencing court's decision for an abuse of discretion.

. Rather, R.C.

2953.08(G)(2) compels an appellate court to modify or vacate a sentence only if the

appellate court finds by clear and convincing evidence that "the record does not support the

trial court's findings under relevant statutes or that the sentence is otherwise contrary to

law." Id. at ¶ 1. A sentence is not clearly and convincingly contrary to law where the trial

court "considers the principles and purposes of R.C. 2929.11, as well as the factors listed

in R.C. 2929.12, properly imposes postrelease control, and sentences the defendant within

the permissible statutory range." State v. Ahlers, 12th Dist. Butler No. CA2015-06-100,

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; State v. Julious, 12th Dist. Butler No. CA2015-12-224, 2016-Ohio-

4822, ¶ 8. Thus, this court may "increase, reduce, or otherwise modify a sentence only

when it clearly and convincingly finds that the sentence is (1) contrary to law or (2)

unsupported by the record." State v. Brandenburg,

,

, citing

.

{¶ 32} At sentencing, the trial court stated, "Mr. Deck, by statute, the Court has no

discretion in your sentence in this case." (Emphasis added.) The court's sentencing entry

states that the sentence is pursuant to R.C. 2971.03(A)(2) which mandates a sentence of

life without parole when, in addition to other requirements, the victim is under the age of ten

and force was used.

{¶ 33} R.C. 2971.03(A)(2) addresses sentencing pursuant to a sexually violent

predator ("SVP") specification. Deck argues this section does not apply because the court

did not specifically determine that the victim was under the age of 10 and because the court

did not specifically find he was a sexually violent predator.

{¶ 34} After the bench trial, the court stated:

Based on the evidence that's been presented, the Court finds that the state has proven beyond a reasonable doubt that [Deck] did engage in sexual conduct with [the victim], who was not his spouse, and that [the victim] was less than 13 years of age at the time of the offense. The court further finds that [Deck] purposely compelled [the victim] to submit by force or threat of force. Therefore, as to count 1, the Court finds the defendant guilty as he stands charged in the indictment.

{¶ 35} Although the determination that the victim was under the age of ten was not

stated specifically on the record, as discussed above, the court found Deck guilty of rape

"as charged in the indictment." The indictment specifically stated that the victim was under

the age of 10. Although stating the finding specifically on the record after trial would have

been preferable, this was a bench trial and the court and parties were all aware of the

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charges in the indictment. See State v. Eafford,

,

(jury

verdict form stating defendant was guilty "as charged in the indictment" was sufficient to

establish aggravating element).

{¶ 36} Moreover, in the judgment entry of conviction, the court specifically stated a

finding that the victim was under the age of ten. Given that this was a bench trial, the

judgment entry was the functional equivalent of a jury form. See State v. Sims, 8th Dist.

Cuyahoga No. 89261,

; see also State v. Sims, 1st Dist. Hamilton Nos. C-

150252, and C-150253,

(safeguards necessary for a jury trial not

necessary in a bench trial where court is aware of charge in the indictment). Therefore,

there was a sufficient determination that the victim was under the age of 10 based on the

court's statement that it found Deck guilty "as charged in the indictment" and the specific

finding in the judgment entry.

{¶ 37} However, although the court's determination that the victim was under the age

of ten was sufficient, the SVP statute is inapplicable in this case. First, R.C. 2971.03(A) by

its terms only applies to an offender who was convicted of a sexually violent predator

specification included in the indictment. State v. Bowers, Hamilton No. C-150024, 2016-

Ohio-904, ¶ 41. No SVP specification was included in the indictment in this case. In

addition, the SVP statute requires not only a determination that the offender has been

convicted of a sexually violent offense, but also a determination that the defendant "is likely

to engage in the future in one or more sexually violent offenses." R.C. 2971.01(H)(1). The

trial court did not make this determination. Factors for making this determination are found

in R.C. 2971.01(H)(2), none of which appear to apply in this case.2

2 The factors include multiple sexually oriented offenses, sexually deviant behavior, chronic offenses with sexual motivation, torture/ritualistic acts in offense, or physical harm to the degree the victim's life was in jeopardy.

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{¶ 38} R.C. 2907.02(B) discusses sentencing for a conviction of rape. It provides

that a defendant convicted of rape of a child under the age of 13 in violation of R.C.

2907.02(A)(1)(b) shall be sentenced pursuant to the standards in R.C. 2971.03. In addition,

this section provides a discretionary option for sentencing a defendant to life without parole

under certain circumstances, such as when the victim is under the age of ten years old.

This option is clearly discretionary, as the statute states "the court may impose" life without

parole.

{¶ 39} If a court does not choose the discretionary option of life without parole

pursuant to R.C. 2907.02(B), and the SVP section does not apply, R.C. 2971.03(B)(1)

provides three sentencing options for a conviction of rape of a child under the age of 13.

State v. Bowers,

,

, ¶ 4-5; State v. Johnson, 8th Dist.

Cuyahoga No. 109127,

. Without additional findings, the sentence

is ten years to life. R.C. 2971.03(B)(1)(a). If the victim was under the age of ten, the

sentence is 15 years to life. R.C. 2971.03(B)(1)(b). If force was used in the rape offense,

if the offender has a previous conviction or if there was serious physical harm, the sentence

is 25 years to life. R.C. 2971.03(B)(1)(c).

{¶ 40} Therefore, the trial court erred in sentencing Deck pursuant to a Revised Code

section that did not apply and that mandated a term of life without parole. Although life

without parole is a sentencing option pursuant to R.C. 2907.02(B), this section is

discretionary and the court erred when it stated that by statute, it had no choice other than

to sentence Deck to life in prison without parole.

{¶ 41} Sentencing errors based on mistaken beliefs by a trial court that it was

required or could not consider specific sentences have regularly been reversed. See e.g.

State v. Sutton,

(although consecutive sentence authorized, court

mistakenly believed they were required and did not consider the issue); State v. Damron,

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,

(even though sentence fell within statutory range, case

was remanded because trial court applied erroneous legal reasoning that removed a

sentencing option from consideration); State v. Sawyer, 11th Dist. Portage No, 2011-P-

0003,

, (erroneous imposition of mandatory prison term was plain error);

State v. Rivera, 10th Dist. Franklin No. 10AP-945,

(case reversed where

trial court erroneously believed it could not impose consecutive sentences); State v. Allen,

Franklin Nos. 11AP-640, 11AP-641, and 11AP-642,

(reversal because trial

court mistakenly believed consecutive sentences required, even though state argued plain

error and that resulting sentence was authorized by law); State v. Bowers,

(court mistakenly applied sexually violent predator specification).

{¶ 42} Therefore, we find the court erred when it sentenced Deck to life without

parole pursuant to R.C. 2971.03(A) and sustain Deck's fourth assignment of error. The

sentence is hereby vacated and the case is remanded to the trial court for the sole purpose

of resentencing. In all other respects, the trial court's judgment is affirmed.

{¶ 43} Judgment affirmed in part, reversed in part and remanded.

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

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