Ohio Appellate Reports
Unpublished
STATE v. KELLEY, Unpublished Decision (12-21-2006)
2006-Ohio-6782 State of Ohio, Plaintiff — Appellee,
v. Raymond W. Kelley Defendant — Appellant. No.
06AP-155. Court of Appeals of Ohio, Tenth District.
Rendered on December 21, 2006.
[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] APPEAL from the Franklin County Court of
Common Pleas.
Ron O’Brien, Prosecuting Attorney, and Steven L Taylor, for
appellee.
Yeura R. Venters, Public Defender, and Allen V. Adair, for
appellant.
OPINION
SADLER, J.
{¶ 1} Appellant, Raymond W. Kelley (“appellant”),
filed this appeal seeking reversal of six convictions of
gross sexual imposition and reversal of the trial court’s
determination that he is a sexual predator. For the reasons
that follow, we affirm the judgment of the trial court.
{¶ 2} Appellant married Yolanda Jackson (“Jackson”)
some time in 1993 or 1994. Tr. at 103. Jackson had custody
of her two daughters from a previous marriage, A1 and
A2.[fn1] Their father, Jeff Walker (“Walker”) had
visitation rights with A1 and A2 on weekends and for four
weeks in the summer. Appellant had what was described as a
close relationship with the two — they engaged in
many family activities together, and referred to him as
“Dad.”
{¶ 3} A1 was born on January 10, 1992, and was 13
years old at the time of trial. A1 testified that when she
was eight or nine years old, appellant “started touching me
in places, in my private places.” (Tr. at 21.) She further
stated, “I remember it was just sometimes he would play in
my hair and drop down and start touching me.” (Tr. at 22.)
She described the action as rubbing her behind and vagina,
over her clothes, for around five minutes at a time. (Tr.
at 29, 30.) A1 could not remember the precise details of
exactly when this began occurring, but said it occurred as
often as three times a week until she was ten or eleven
years old. (Tr. at 24.) She also described a time when,
while living on Oak Bend in Canal Winchester, appellant
took down his pants and had her feel his penis. (Tr. at
31.)
{¶ 4} A2 was born on May 9, 1989, and was 16 years
old at the time of trial. She testified that when she was
eight or nine years old, and the family was living in a
house on County Line Road in Westerville, appellant began
molesting her. She said the first time this occurred,
appellant bribed her with candy to sit on his lap. While she
was sitting on his lap, appellant exposed his penis and had
her touch it. When she objected, he told her he wanted her
to know what it looked like, and that she should not touch
it any more. (Tr. at 59.)
{¶ 5} She then testified to a number of times when
she said appellant rubbed her vagina, over her clothes. She
also testified about an incident in which appellant pulled
her into bed, removed both of their clothes, and touched
her behind, vagina, and breasts; another incident in which
appellant rubbed her breast over her clothes; and yet
another incident in which he put his hand under her clothes
and attempted to penetrate her vagina with his finger. (Tr.
at 66-70.)
{¶ 6} Both A1 and A2 testified that they did not
report this abuse to anyone because they were afraid the
family would be broken up if they did. Eventually, A2
reported what had happened to Walker’s girlfriend Kim
during one of the periods when she was visiting Walker.
{¶ 7} Even after the abuse, A1 and A2 remained on
good terms with appellant. Testimony was offered regarding
times when the girls would see appellant at community
events and would be affectionate with him at those times.
(Tr. at 112, 122.) A1 and A2 would also call appellant at
the radio station where he was working, referring to him as
their father when they did. (Tr. at 124, 152.)
{¶ 8} Appellant was initially indicted on 12 counts
of gross sexual imposition in violation of R.C. 2907.05. A1
was the alleged victim on all 12 counts. Counts seven
through twelve alleged the use of force, and alleged that
the offenses occurred between May 19, 1997 and May 19,
2001. Counts one through six alleged that the time period
during which the offenses occurred was between February 1,
2000 and February 1, 2002. Counts one through three alleged
that the victim was between eight and ten years old, while
counts four through six alleged that the victim was between
eight and twelve years old.
{¶ 9} At the conclusion of A1’s testimony, counts
four through six and ten through twelve were amended to
name A2 as the victim. At the conclusion of the state’s
case, counts seven through twelve (the counts alleging use
of force) were dismissed pursuant to Crim.R. 29.
{¶ 10} The jury returned guilty verdicts on the
remaining six counts. The trial court then held a sex
offender classification hearing and adjudicated appellant
as a sexual predator subject to lifetime reporting
requirements. The court then sentenced appellant to three
years of incarceration on each of the first three counts to
be served concurrently with each other, two years of
incarceration on each of counts four through six to be
served concurrently with each other, but consecutive to the
sentence on counts one through three, for a total sentence
of five years.
{¶ 11} Appellant filed this appeal alleging four
assignments of error:
First Assignment of Error: The evidence was legally
insufficient to support appellant’s conviction on counts
one through three. Second Assignment of Error: The court
erroneously overruled appellant’s motion for acquittal
pursuant to Criminal Rule 29. Third Assignment of Error:
Appellant’s convictions were against the manifest weight
of the evidence. Fourth Assignment of Error: The evidence
before the court was legally insufficient to establish
that appellant was a sexual predator, subject to the
lifetime registration and community notification
provisions of Chapter 2950 of the Ohio Revised Code.
{¶ l2} Appellant’s first three assignments of error
are interrelated and will be treated together. As set forth
in State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d
492, when reviewing the sufficiency of the evidence
supporting a criminal conviction, an appellate court must
examine the evidence submitted at trial to determine whether
such evidence, if believed, would convince an average
person 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. Id. at
paragraph two of the syllabus. See also, Jackson v.
Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 61
L.Ed.2d 560.
{¶ 13} This test raises a question of law and does
not allow the court to weigh the evidence. State v. Martin
(1983), 20 Ohio App.3d 172, 485 N.E.2d 717. Rather, the
sufficiency of the evidence test “gives full play to the
responsibility of the trier of fact fairly to resolve
conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate
facts.” Jackson, supra, at 319. Accordingly, the reviewing
court does not substitute its judgment for that of the fact
finder. Jenks, supra, at 279.
{¶ l4} In determining whether a verdict is against
the manifest weight of the evidence, the appellate court
acts as a “thirteenth juror.” Under this standard of
review, the appellate court weighs the evidence in order to
determine whether 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. Thompkins (1997), 78 Ohio St.3d 380, 678 N.E.2d 541.
However, in engaging in this weighing, the appellate court
must bear in mind the fact finder’s superior, first-hand
perspective in judging the demeanor and credibility of
witnesses. See State v. DeHass (1967), 10 Ohio St.2d 230,
227 N.E.2d 212, at paragraph one of the syllabus. The power
to reverse on “manifest weight” grounds should only be used
in exceptional circumstances, when “the evidence weighs
heavily against the conviction.” Thompkins, supra at 387.
When reviewing a trial court’s denial of a motion for
acquittal under Crim.R. 29, appellate courts apply the same
standard as that which applies to claims regarding
sufficiency of the evidence. Id. at 386.
{¶ 15} Appellant’s argument with respect to
sufficiency of the evidence relates only to counts one
through three of the indictment. All of the counts alleged
violations of R.C. 2907.05(A)(4), which provides that:
(A) No person shall have sexual contact with another, not
the spouse of the offender; cause another, not the spouse
of the offender, to have sexual contact with the offender;
or cause two or more other persons to have sexual contact
when any of the following apply:
(4) The other person, or one of the other persons, is
less than thirteen years of age, whether or not the
offender knows the age of that person.
{¶ 16} Appellant does not argue that the State
failed to prove any of the elements of the offense.
Instead, appellant argues that the evidence was
insufficient to establish that the incidents actually took
place. Counts one through three were those counts in which
A1 was the alleged victim. Appellant argues that A1 gave
only general testimony regarding the incidents involving
her, could not relate any of the events to any particular
time or location, and could not state with certainty how
many times the incidents had taken place. Appellant further
argues that inconsistencies between A1’s testimony and
statements she made to investigators on the subjects of
whether appellant ever spanked her or ever removed any of
his clothes with her call her credibility into question.
{¶ 17} Having reviewed the evidence, we cannot say
that a reasonable trier of fact could not have found
appellant guilty of gross sexual imposition against A1
beyond a reasonable doubt. A1 was unable to remember a
number of specific details, such as whether any incidents
occurred while the family lived on County Line Road, the
specific number of times these incidents occurred, or what
time of day the incidents occurred. However, she was able
to specifically identify the family residence at Little
Turtle as a place where some incidents occurred. (Tr. at
24-25.) She was also clear that there were multiple
instances of appellant touching her beginning when she was
almost nine years old and ending when she was almost eleven
years old. A1 testified that these incidents would occur as
often as three times per week for periods of time with
breaks in between. (Tr. at 24.) Any questions about the
consistency and credibility of A1’s testimony were within
the province of the jury to decide.
{¶ 18} For the same reasons, we cannot say the trial
court erred when it failed to grant appellant’s motion for
acquittal as to counts one through three. As for the motion
for acquittal as to counts four through six, which alleged
that A2 was the victim, we cannot say that reasonable minds
could not have concluded that appellant was guilty beyond a
reasonable doubt. A2’s testimony included a greater number
of specific details regarding the incidents, including that
separate incidents occurred while the family lived on
County Line Road, on Wintersong Lane, and on Oak Bend
Boulevard. As with A1’s testimony, any questions about
consistency and credibility were within the province of the
jury to decide.
{¶ l9} In arguing that the convictions were against
the manifest weight of the evidence, appellant argues that
the evidence showed that A1 and A2 were motivated to
fabricate charges against appellant because he disciplined
them too severely, that Walker put them up to making the
charges because he wanted to gain custody in order to avoid
paying child support, and that their continuing affection
for appellant is inconsistent with their claims that
appellant sexually abused them. Both A1 and A2 testified
that appellant and Jackson were stricter with them than
Walker was, but neither expressed any animosity regarding
that fact. Neither of the girls had seen Walker in the
three years preceding trial, which would appear to negate
any claim that the charges were part of an ongoing battle
over custody. Nor can we say that A1 and A2’s continuing
affection for appellant is so inconsistent with their claim
that appellant sexually abused them as to require a finding
that appellant’s convictions were against the manifest
weight of the evidence. Having considered the record in its
entirety, we cannot say that the jury lost its way in
convicting appellant.
{¶ 20} Consequently, appellant’s first, second, and
third assignments of error are overruled.
{¶ 21} In his fourth assignment of error, appellant
argues that the evidence before the court was legally
insufficient to support the court’s adjudication of
appellant as a sexual predator subject to lifetime
reporting and community notification requirements. Sexual
predator proceedings are civil in nature, and as with any
civil proceeding, we are required to presume the findings
of the trier of fact are correct. See State v. McCoffin
(Dec. 21, 2000), Franklin App. No. 00AP-468. R.C.
2950.01(E)(1) defines a sexual predator as a person who
“has been convicted of or pleaded guilty to committing a
sexually oriented offense * * * and is likely to engage in
the future in one or more sexually oriented offenses.” A
finding that a person is a sexual predator must be made
based on clear and convincing evidence. R.C. 2950.09(B)(4).
{¶ 22} R.C. 2950.09(B)(3)(a) through (j) lists ten
factors to be considered when evaluating whether a person
should be found to be a sexual predator:
(a) The offender’s * * * age;
(b) The offender’s * * * prior criminal * * * record
regarding all offenses, including, but not limited to, all
sexual offenses;
(c) The age of the victim of the sexually oriented
offense for which sentence is to be imposed * * *;
(d) Whether the sexually oriented offense for which
sentence is to be imposed * * * involved multiple victims;
(e) Whether the offender * * * used drugs or alcohol to
impair the victim of the sexually oriented offense or to
prevent the victim from resisting;
(f. If the offender * * * previously has been convicted
of or pleaded guilty to * * * a criminal offense, whether
the offender * * * completed any sentence * * * imposed
for the prior offense or act and, if the prior offense or
act was a sex offense or a sexually oriented offense,
whether the offender * * * participated in available
programs for sexual offenders;
(g) Any mental illness or mental disability of the
offender * * *;
(h) The nature of the offender’s * * * sexual conduct,
sexual contact, or interaction in a sexual context with
the victim of the sexually oriented offense and whether
the sexual conduct, sexual contact, or interaction in a
sexual context was part of a demonstrated pattern of
abuse;
(i) Whether the offender * * *, during the commission of
the sexually oriented offense for which sentence is to be
imposed * * * displayed cruelty or made one or more
threats of cruelty;
(j) Any additional behavioral characteristics that
contribute to the offender’s * * * conduct.
{¶ 23} There is no requisite number of these factors
that must apply before a trial court may find an offender
is a sexual predator. State v. McComas, Franklin App. No.
05AP-134, 2006-Ohio-380. The court “may classify an
offender as a sexual predator even if only one or two
statutory factors are present, so long as the totality of
the relevant circumstances provides clear and convincing
evidence that the offender is likely to commit a future
sexually oriented offense.” State v. Hardie (2001), 141
Ohio App.3d 1, 5, 2000-Ohio-2044, 749 N.E.2d 792.
{¶ 24} In this case, the factors the trial court
relied on were the fact that there was two victims, that
both victims were very young when the offenses occurred,
and the offenses were part of a pattern of abuse that
occurred over an extended period of time. Having reviewed
the record, we agree with the trial court that these
factors demonstrate by clear and convincing evidence that
appellant is likely to commit additional sexually oriented
offenses in the future. Consequently, appellant’s fourth
assignment of error is overruled.
{¶ 25} Having overruled appellant’s four assignments
of error, we affirm the judgment of the trial court.
Judgment affirmed.
KLATT, P.J., and TRAVIS, J., concur.
[fn1] We use these designations in recognition of the
privacy interests of the minors.