Ohio Appellate Reports
Unpublished
STATE v. BEVINS, Unpublished Decision (12-29-2006)
2006-Ohio-6974 STATE OF OHIO, Plaintiff-Appellee, v. ANDREW
BEVINS, Defendant-Appellant. No. C-050754. Court of
Appeals of Ohio, First District, Hamilton County. Date of
Judgment Entry on Appeal: December 29, 2006.
[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] Criminal Appeal from Hamilton County Court
of Common Pleas. Judgment Appealed from is Sentence Vacated
and Cause Remanded. Trial No. B-0009175.
Joseph T. Deters, Hamilton County Prosecuting Attorney, and
Judith Anton Lapp, Assistant Prosecuting Attorney, for
Appellee.
Roger W. Kirk, for Appellant.
DECISION.
SYLVIA SIEVE HENDON, Judge.
{1} Following a jury trial, defendant-appellant
Andrew Bevins was convicted of aggravated burglary and
rape. The trial court sentenced him to consecutive ten-year
prison terms. Bevins now appeals.
{2} Bevins argues that (1) the prosecutor engaged
in misconduct; (2) the trial court erred by denying his
request to represent himself; (3) the prosecutor and the
court violated his rights under Brady v. Maryland[fn1]; (4)
his convictions were against the weight of the evidence and
were not supported by sufficient evidence; and (5) his
sentences were unconstitutional. In a sixth assignment of
error, Bevins’ appellate counsel submits for our review
several issues that Bevins has requested “without counsel
due to difference of opinion on the merit of same.”
The State’s Case
{3} After midnight on November 8, 2000, Nina
Gipson and her eight-year-old daughter were asleep in
Gipson’s bed when Gipson was awakened by the creaking of
the stairs outside her bedroom door. Gipson jumped out of
bed and saw a “shadow peeping around the corner.” So Gipson
grabbed a glass from a dresser and lunged at the person who
had come up the steps.
{4} Gipson struck the intruder in the forehead,
above his left eye, with the glass. The man turned Gipson
around and held her in a headlock and choked her. As Gipson
was screaming and struggling, her daughter tried to fight
the man.
{5} The man continued to choke Gipson and to
“fling [her] around.” Her daughter was yelling, “[G]et off
my momma.” The man told Gipson to stop struggling and to
have her daughter go into the bedroom, or he would kill
Gipson. Gipson testified that her daughter “finally went to
the bedroom. Well, after I told her, I said, babe, you have
to listen and go and do what the man says or he going to
kill mommy.”
{6} Gipson repeatedly tried to turn on the lights,
but the intruder kept turning the light switch off. Gipson
grabbed a can of disinfectant spray and tried to spray the
man in the face, but the man said, “[H]oney, you going to
have to do better than that.”
{7} The struggle carried Gipson and her assailant
into her daughter’s bedroom and into a closet where some
clothing was hanging. When Gipson’s daughter jumped on the
man, he threw the little girl against a bedpost, where she
hit her back before falling to the floor. Gipson then bit
the man on the forearm.
{8} The man pulled Gipson back into the hallway,
just outside her open bedroom door and in view of her
daughter, who was sitting on Gipson’s bed. As he choked
Gipson, the man digitally penetrated her vagina. The man
then pushed Gipson into her daughter’s room and began to
unbuckle his belt. Gipson bumped the man, and he slipped.
{9} Gipson ran out of the apartment, screaming.
She ran to the home of Francine Jackson, a neighbor, and
called the police.
{10} Gipson described her attacker as an
African-American man who wore a white T-shirt, blue “work
pants,” and dark blue flip-flops with white writing and
designs on them. She testified that she could not see the
man’s face because he had been holding her from behind.
{11} Gipson testified that “Ms. Bevins” and her
children had moved into the adjoining apartment a few weeks
before the attack. She had seen Andrew Bevins, but had
never spoken to him or allowed him to enter her apartment.
In contrast to later testimony by Bevins’ son, Gipson said
that Bevins had never carried laundry for her.
{12} Erica Renee Moore, another neighbor,
testified that when she had heard Gipson’s screams, she
looked out her window. Within a few minutes, she saw Bevins
walking swiftly to his car: “If he would have walked any
faster, he would have been running.” Moore said that Bevins
was wearing a “workman’s uniform” consisting of a light blue
shirt and dark blue pants, and blue Adidas flip-flops “with
white” on them. Moore saw Bevins drive off in a gray truck.
{13} At about 8:30 that morning, Moore saw Bevins
return to his estranged wife’s apartment, which adjoined
Gipson’s apartment. Moore noticed that Bevins was wearing
the same clothing and shoes that she had seen earlier, but
this time Bevins was also wearing a skull cap that covered
his forehead.
{l4} Ann Renee Steele, a sexual-assault nurse
examiner at University Hospital, testified that she had
examined a distraught and tearful Gipson shortly after the
attack. Steele described Gipson’s injuries, which included
abrasions on her face and neck, bruises on her arms, and
cuts on her lip and under a toe. Gipson also had vaginal
abrasions and redness that were consistent with forced
digital penetration. Steele saw what appeared to be blood
stains on Gipson’s T-shirt, so she submitted the T-shirt to
the coroner’s laboratory for testing.
{l5} Detective Steven Ventre testified that he had
met Gipson at her apartment a week or so after the attack.
In Gipson’s daughter’s bedroom closet, Ventre found a
child’s dress and pants that had what appeared to be blood
on them. Ventre submitted the items to the coroner’s
laboratory.
{16} Testing of Gipson’s T-shirt and of the
child’s dress and pants revealed human blood stains.
Deoxyribonucleic Acid (“DNA”) testing of the T-shirt and of
the pants revealed Bevins’ blood on both items. No DNA
testing was conducted on the dress.
The Defense Case
{17} Bevins presented the testimony of a Bevins
family friend named Francine Jackson, who stated that, on
the night of the attack, Gipson had called the police from
her home, and that Gipson had pointed out a white van that
she had seen driving away from the scene.
{18} Annette Bevins testified that she had been
married to Bevins for 25 years, but that they were
separated. She and their two children lived in the
apartment next to Gipson’s. She testified that on the
evening of November 7, 2000, she, Bevins, and her
sister-in-law had driven in Bevins’ light gray pickup truck
to her daughter’s home in North Carolina. They had arrived
there the following morning.
{19} Bevins’ son testified that on November 8,
2000, which he remembered “plain as day, because [his]
niece was born that day,” he saw his father carry some bags
or a bundle of clothes into Gipson’s apartment. His father
had a “busted up knuckle” from an incident that had
occurred earlier that day. When his father came out of
Gipson’s apartment, his father’s knuckle was bleeding.
{20} Bevins’ daughter, Patricia Slaughter,
testified that she was living in North Carolina and that
her family had visited her on November 8, 2000.
{21} Bevins also called Cincinnati Police Officer
Phillip Black to identify three photographs that he had
taken of Bevins on November 15, 2000. Black said that he
took the photographs because he had observed a scar over
Bevins’ left eye and some scars on his hand.
{22} Black also identified three photographs of
another man, one of which showed that man standing by the
side of a white van. The man had been stopped by a patrol
officer the night of the attack as a result of the
descriptions that had been broadcast about the attack.
Black testified that the van driver had been eliminated as
a suspect when Bevins’ blood was identified on Gipson’s
clothing.
{23} William Hillard, a crime-scene investigator
for the Cincinnati Police Division, testified that he had
investigated the crime scene at Gipson’s apartment on
November 8, 2000. Hillard said that a fingerprint on the
disinfectant spray can was not Bevins’ fingerprint. He did
not test the print to see if it was Gipson’s.
{24} Hillard identified nine photographs of the
scene that the prosecutor had submitted into evidence. He
testified that 48 photographs, from two rolls of film, were
taken of the scene, and that “more than likely [he] took
the pictures.” He said that he did not know where the
photographs were, and that he probably would have turned
the photographs over to the case investigator.
Prosecutorial Misconduct
{25} In his first assignment of error, Bevins
argues that prosecutorial misconduct during closing
argument deprived him of a fair trial. He contends that the
prosecutor improperly vouched for the credibility of the
state’s witnesses and denigrated defense counsel. Bevins
failed to object in either instance, so he has waived all
but plain error.[fn2]
{26} The test for prosecutorial misconduct in
closing argument is “`whether the remarks were improper
and, if so, whether they prejudicially affected substantial
rights of the defendant.'”[fn3] “[T]he touchstone of due
process analysis in cases of alleged prosecutorial
misconduct is the fairness of the trial, not the
culpability of the prosecutor.”[fn4] We must review the
challenged comments not in isolation, but in the context of
the entire closing argument.[fn5]
A. Vouching for a Witness’s Credibility
{27} In closing argument, neither the prosecutor
nor defense counsel is permitted to express his or her
personal belief as to the credibility of a witness.[fn6]
But both sides are free to comment on what the evidence has
shown and on the reasonable inferences that might be drawn
from the evidence.[fn7]
{28} The Ohio Supreme Court has established that
counsel “may state his or her opinion if it is based on the
evidence presented at trial.”[fn8] Consequently, this
district, in two opinions authored by Judge Painter, has
held that counsel may comment on the truthfulness and
credibility of a witness so long as it is based on the
witness’s testimony.[fn9] For example, counsel may
summarize a witness’s testimony and point out apparent
discrepancies or inconsistencies.[fn10] But counsel may not
vouch for a witness’s credibility because, “[i]n order to
vouch for the witness, [counsel] must imply knowledge of
facts outside the record or place [counsel’s] personal
credibility in issue.”[fn11]
{29} In closing argument, a prosecutor does not
improperly vouch for a witness’s credibility by arguing,
based upon the evidence, that a witness was “a reliable
witness to the simple events she witnessed, that she lacked
any motive to lie, [or] that her testimony was not
contradictory.”[fn12] A prosecutor may argue facts in
evidence to support a witness’s credibility and may respond
to defense attacks on the witness’s credibility and mental
abilities.[fn13]
{30} In closing argument in this case, defense
counsel remarked on the testimony of Bevins’ alibi
witnesses: “[The] [p]rosecutor might tell you [the family
members] have an interest in the case. Well, sure they do.
It’s their father. Does that mean they’re going to come in
here and lie? They’re going to fabricate this story about a
trip to North Carolina just to get their father off? * * *
I say not. I say they were believable.”
{31} Defense counsel went on to argue, “That’s
alibi. He was somewhere else at the time this incident
happened. That’s evidence. Consider it. Is it believable?
Certainly is. And you can believe it.”
{32} In rebuttal, the prosecutor asked the jury to
consider whether the testimony of the alibi witnesses was
reasonable or believable, and whether it made sense. The
prosecutor stated, “Now you determine, are these witnesses
biased, do they have an interest in the case, do they have
a stake in the outcome, are they family friends, are they
family members, you decide.
{33} “* * * Now, the Judge will tell you, you
determine who you’re going to believe. And you need to use
reason and common sense when you determine the credibility
of the witnesses. You consider whether the witness was
reasonable or believable. Did his or her testimony make
sense, was it believable.
{34} “Now, let’s look at the victim. She was four
months pregnant at the time. She had no reason to lie about
what happened to her. If she wanted to lie, she could have
named Mr. Bevins from the get-go.
{35} “But she didn’t, because she didn’t see who
did this to her. She told the truth. She didn’t know who
did this to her, she could only give a description, a hair
description, and she said the person who did this was
wearing some type of blue work pants and flip-flops.
{36} “What about Erica Moore, the neighbor? She
had no reason to lie. She wasn’t a friend of the defendant,
she wasn’t a friend of the victim. She was a neighbor. * *
* Now why would Erica lie? She has no interest or stake in
the case, she [ha]s no relationship to the victim or
defendant. Was her testimony reasonable? Was it believable?
Yes, it was.
{37} “What about [nurse] Ann Steele? She had no
interest or stake in the case. She was an unbiased witness.
* * * Was her testimony reasonable, was it believable? Yes.
{38} “Was [serologist] Joan Burke’s testimony
reasonable? Was it believable? Yes. She didn’t have an
interest in this case. She didn’t have a stake in the
outcome of this case.”
{39} The prosecutor properly asked jurors to
consider the reasonableness of the witnesses’ testimony and
whether the witnesses had a bias or an interest in the
outcome. These are some of the same factors that Ohio trial
courts routinely instruct juries to consider in determining
witness credibility,[fn14] and they were cited in direct
response to defense counsel’s argument. None of these
remarks by the prosecutor was improper.
B. Denigration of Defense Counsel
{40} Bevins also argues that the prosecutor
improperly denigrated defense counsel by stating, “Now, I
know the defense here is trying to divert your attention or
cloud the issue, but the main issue here is who did this,
did the defendant do this, that’s the main issue.”
{41} A prosecutor may not make unfair or
derogatory personal references to defense counsel.[fn15]
But in our review of closing arguments, we may not take a
prosecutor’s isolated comments out of context and give them
their most damaging meaning.[fn16]
{42} In State v. Smith, the Ohio Supreme Court
rejected an argument that similar comments by a prosecutor
had improperly denigrated defense counsel.[fn17] In Smith,
the prosecutor had argued, “`You may know now why Mr.
Bruner [defense counsel] says what he says is not evidence’;
`He is doing what I cautioned you about. He is trying to
direct your attention to somewhere else to what the
evidence might be, what it could be, what he says that it
is, when it is not what happened from the stand.'” The
court held that the prosecutor’s comments, while “somewhat
theatrical,” did not improperly denigrate defense
counsel.[fn18]
{43} In this case, the prosecutor made no
derogatory personal reference to defense counsel. On the
contrary, like the prosecutor in Smith, the prosecutor in
this case simply pointed out that defense counsel was
trying to direct the jury’s attention elsewhere.
Consequently, we conclude that the prosecutor’s isolated
remarks about defense counsel’s argument were not improper.
We overrule Bevins’ first assignment of error.
Self-Representation
{44} In his second assignment of error, Bevins
argues that the trial court erred by denying his request
for self-representation. We considered and rejected this
argument in Bevins’ appeal in the case numbered C-050481,
decided on October 20, 2006.[fn19] In that case, we
sustained Bevins’ conviction of assault on a corrections
officer.
{45} The trial court held a hearing at which it
simultaneously addressed Bevins’ motions for
self-representation filed in this case and in the assault
case. Accordingly, we overrule this assignment of error on
the authority of our earlier decision.[fn20]
Brady Violation
{46} In his third assignment of error, Bevins
argues that the state’s failure to provide exculpatory
evidence, and the trial court’s denial of his motion for a
new trial on Brady v. Maryland[fn21] grounds, violated his
rights to due process. Bevins argues that the state’s
failure to produce for testing the child’s dress that had
been recovered from Gipson’s apartment, and the state’s
introduction into evidence of only nine of 48 photographs
of the scene, denied him of a fair trial. We find no merit
in either assertion.
{47} A Brady violation occurs when the state fails
to disclose evidence materially favorable to the
accused.[fn22] Evidence suppressed by the state is material
within the meaning of Brady only if there exists a
reasonable probability that the result of the trial would
have been different had the evidence been disclosed to the
defense.[fn23] “The mere possibility that an item of
undisclosed information might have helped the defense, or
might have affected the outcome of the trial, does not
establish `materiality’ in the constitutional sense.”[fn24]
{48} A due-process violation does not result from
the state’s failure to preserve evidence “of which no more
could be said than that it could have been subjected to
tests, the results of which might have exonerated the
defendant.”[fn25] The failure to preserve potentially
useful evidence does not violate due process “unless a
criminal defendant can show bad faith on the part of the
police.”[fn26]
A. The Child’s Dress
{49} Before the trial in this case, Bevins filed a
motion to dismiss based in part on the state’s disclosure
that the child’s dress, which the coroner’s laboratory had
determined to be stained with human blood, was lost. The
state had disclosed the existence of the dress and the
results of the tests conducted on the dress well in advance
of the first of Bevins’ four trials on these charges. The
record reveals no attempt by Bevins to have the dress
re-tested for human blood or tested for DNA at any point in
the four years between the state’s disclosure of the
evidence in discovery and Bevins’ motion to dismiss filed
before his latest trial.
{50} Moreover, Bevins did not allege that the
state had acted in bad faith in the loss of the dress. In
asking the trial court to dismiss the charges, he argued
only that testing of the dress “might show someone else’s
blood.” Because Bevins failed to demonstrate bad faith by
the state in its loss of the dress, and because he failed
to demonstrate that the dress was material in a
constitutional sense, we conclude that the trial court did
not err in denying Bevins’ motion to dismiss.
B. Photographs
{51} Before he was sentenced, Bevins filed a
motion for a new trial, alleging that the state had
introduced into evidence only nine of a possible 48
photographs taken by police. In support of his motion,
Bevins argued that the “unintroduced” photographs might have
shown clothing items in Gipson’s apartment to be in places
other than where police testified the items were found.
{52} Months before Bevins’ first trial, the state
had revealed in discovery the existence of photographs and
had made them available for inspection. At one point, the
prosecutor made available to defense counsel the entire
police file.
{53} We will not second-guess a prosecutor’s trial
strategy in introducing into evidence some, but not all,
photographs related to an offense. The prosecutor’s
decision may have been based on the quality of the
photographs, their cumulative nature, or other
considerations. In any event, we are not in a position to
infer misconduct from the prosecutor’s decision to present
only a portion of the photographs.
{54} Because Bevins has failed to demonstrate that
the photographs not introduced by the prosecutor at trial
were favorable to him or that they would have changed the
result of the trial, we hold that the trial court did not
err by denying his motion for new trial. Consequently, we
overrule Bevins’ third assignment of error.
Weight and Sufficiency of the Evidence
{55} In a challenge to the sufficiency of the
evidence, the question is whether after viewing the
evidence in the light most favorable to the prosecution,
any rational trier of fact could have found all the
essential elements of the crime beyond a reasonable
doubt.[fn27] In reviewing a challenge to the weight of the
evidence, we sit as a “thirteenth juror.”[fn28] We must
review the entire record, weigh the evidence, consider the
credibility of the witnesses, and determine whether the
trier of fact clearly lost its way and created a manifest
miscarriage of justice.[fn29]
{56} To find Bevins guilty of aggravated burglary,
in violation of R.C. 2911.11(A)(1), the jury had to find
that Bevins, by force, stealth, or deception, had
trespassed in an occupied structure, with purpose to commit
in the structure any criminal offense, and that Bevins had
inflicted physical harm on Nina Gipson. To find Bevins
guilty of rape, in violation of R.C. 2907.02(A)(2), the
jury had to find that Bevins had engaged in sexual conduct
with Gipson and had purposely compelled her to submit by
force or threat of force.
{57} We hold that a rational juror, viewing the
evidence in a light most favorable to the state, could have
found that the state had proved beyond a reasonable doubt
that Bevins had committed the offenses of aggravated
burglary and rape. Therefore, the evidence presented was
legally sufficient to sustain Bevins’ convictions.
{58} Although the Bevins family provided an
explanation for his blood being found in Gipson’s
apartment, as well as a spurious alibi, the weight to be
given the evidence and the credibility of the witnesses
were primarily for the jury to determine.[fn30] Moreover,
our review of the record does not persuade us that the jury
clearly lost its way and created a manifest miscarriage of
justice in finding Bevins guilty of the offenses.
Accordingly, we overrule the assignment of error.
Sentencing
{59} In his fifth assignment of error, Bevins
argues that the trial court erred by sentencing him to
maximum, consecutive prison terms. Specifically, Bevins
argues that the imposition of such sentences violated his
Sixth Amendment right to a jury trial as set forth by the
United States Supreme Court in Blakely v. Washington.[fn31]
This assignment of error is well taken in light of the Ohio
Supreme Court’s decision in State v. Foster.[fn32]
{60} Foster dictates that because the sentences
were based on unconstitutional statutory provisions, we
must sustain the assignment of error, vacate the sentence
for each offense, and remand the case for
resentencing.[fn33]
Remaining “Assignment of Error”
{61} Bevins’ appellate counsel casts as a sixth
assignment of error “certain issues for the [c]ourt to
review without counsel due to difference of opinion on the
merit of same.” We find no merit in any of Bevins’
assertions.
A. Speedy Trial
{62} First, Bevins argues that the trial court
violated his right to a speedy trial under R.C. 2945.71.
This argument has no merit. The Ohio Supreme Court has
specifically held that R.C. 2945.71, Ohio’s speedy-trial
statute, “does not apply to criminal convictions that have
been overturned on appeal.”[fn34] Nor does the statute apply
to a retrial following a mistrial declaration because of a
hung jury.[fn35] Instead, the time limit for bringing a
person to trial whose conviction has been overturned on
appeal, or whose retrial has resulted from a mistrial, is
governed by the Sixth Amendment to the United States
Constitution and Section 10, Article I of the Ohio
Constitution.[fn36]
{63} In this case, any delays between retrials
were occasioned by Bevins’ repeated requests for
continuances and for new counsel, his failure to cooperate
with counsel, newly assigned counsels’ need to prepare,
Bevins’ multiple psychological evaluations, and his motions
for experts and investigators. Consequently, we hold that
Bevins was not denied the right to a speedy trial.[fn37]
B. Ineffective Assistance of Counsel
{64} Bevins argues that trial counsel was
ineffective because he failed to object to the prosecutor’s
leading questions and failed to introduce photographs of
injuries to the victim’s genitalia. At trial, counsel
expressed his concern that the jury could be “repulsed” by
the graphic photographs, which may have resulted in
prejudice to Bevins.
{65} “Reversal of a conviction for ineffective
assistance requires that the defendant show, first, that
counsel’s performance was deficient and, second, that the
deficient performance prejudiced the defense so as to
deprive the defendant of a fair trial.”[fn38] Failure to
object to leading questions does not constitute ineffective
assistance of counsel.[fn39] As to the photographs, we will
not second-guess counsel’s trial strategy.[fn40] In light
of the nurse’s testimony that she had observed a scratch
and bruising about the victim’s vagina, and the hospital
record containing a diagram of the injuries, counsel’s
strategy was certainly reasonable. Consequently, Bevins has
not demonstrated that counsel’s performance was deficient.
C. Admission of State’s Exhibits
{66} Bevins maintains that the admission into
evidence of the state’s exhibits was in error. The state
introduced nine photographs that depicted numerous injuries
to Gipson’s face, neck, ankle, arms, and foot, and a
photograph of her bloodied T-shirt. Both Gipson and Steele
had testified to the authenticity and accurate depictions of
the photographs. And the photographs had significant
probative value and were not cumulative in their
presentation.
{67} The state introduced Gipson’s T-shirt and her
daughter’s pants, which Gipson and Burke had identified.
The state introduced a report from the coroner’s office
that was prepared and authenticated by Burke, and Gipson’s
hospital record, which was authenticated by Steele. Bevins
raised no objection to the admission of photographs of
Gipson’s apartment or to the admission of a 911 recording.
Consequently, we find no abuse of discretion by the trial
court in the admission of any of the trial exhibits.[fn41]
D. Competency
{68} Bevins argues that the trial court
erroneously admitted the competency-evaluation report of
William S. Walters, Ph.D. Having failed at trial to object
to the report’s admission into evidence, Bevins has waived
all but plain error. Bevins contends that the court should
not have admitted Dr. Walters’ report finding Bevins
competent to stand trial because Dr. Walters had not
evaluated him. We find no error in the court’s admission of
Dr. Walters’ report or in the court’s determination that
Bevins was competent to stand trial.
{69} The trial court held a competency hearing at
which three psychologists testified. Nancy
Schmidtgoessling, Ph.D., had attempted to interview Bevins
on four different dates, but Bevins had refused to be
evaluated. As a result, Dr. Schmidtgoessling did not render
an opinion on Bevins’ competency.
{70} Dr. Walters and Robert Tureen, Ph.D.,
testified that they had met with Bevins on separate
occasions, and that each time Bevins had refused to respond
to their questions. According to Dr. Tureen, Bevins’ silent
behavior was controlled and purposeful. Both Drs. Walters
and Tureen observed Bevins, reviewed his prior
psychological evaluations, and spoke with corrections
officers about him. Both opined that Bevins was competent
to stand trial.
{71} Corrections officers testified that they had
had frequent contact with Bevins in the jail. They had seen
Bevins laughing, talking, and playing cards with other
inmates. Several days a week, Bevins was escorted by
officers to the law library, where he used a computer to do
work for himself and for other inmates.
{72} Though he had been given numerous
opportunities, Bevins continually refused to cooperate with
the psychologists in their evaluations. Bevins failed to
produce any evidence to rebut the presumption that he was
competent.[fn42] Because there was reliable, credible
evidence supporting the trial court’s conclusion that
Bevins understood the nature and objective of the
proceedings against him, we will not disturb the finding
that Bevins was competent to stand trial.[fn43]
E. Sexual-Predator Determination
{73} For an offender to be designated a sexual
predator under R.C. 2950.09, the state must prove by clear
and convincing evidence that the offender has been
convicted of a sexually oriented offense, and that the
offender is likely to engage in the future in one or more
sexually oriented offenses.[fn44] In making the
determination whether an offender is likely to engage in
future sexually oriented offenses, the trial court is to
consider all relevant factors, including those enumerated
in R.C. 2950.09(B)(3).[fn45]
{74} Here, the state presented overwhelming
evidence that Bevins is a sexual predator. Bevins broke
into a home in the middle of the night to attack a pregnant
stranger. Even when Gipson hit him in the head with a
glass, and her eight-year-old daughter tried to intervene,
Bevins was undeterred in his quest to rape Gipson. As
Bevins struggled violently with Gipson, he repeatedly
threatened to kill Gipson and her daughter. It is difficult
to imagine the type of person who could cause a mother to
say to her child, “[B]abe, you have to listen and go and do
what the man says or he going to kill mommy.”
{75} In a further display of cruelty, Bevins threw
the child against a bedpost and injured her back. Still
undeterred, Bevins continued his attack upon Gipson and
even raped her in front of her little girl. Even after
Bevins had digitally penetrated Gipson, he tried to force
her into another room, unbuckling his belt as he went.
Surely, there was ample support for the determination that
Bevins demonstrated a great likelihood that he would commit
a sexual offense in the future.
{76} Bevins had an extensive criminal history that
included multiple convictions for breaking and entering,
theft, assault, and escape. In 1993, Bevins was paroled
after serving about three years of a five-year prison
sentence. After violating his parole, he was ordered back
to prison. Bevins had also been sentenced to an eight-year
prison term for escape, and to a one-year prison term for
assaulting a corrections officer.
{77} In making its determination, the trial court
further considered the report of Sherry Baker, Ph.D, which
stated that Bevins had a “moderate-high” risk of
re-offending according to a test used to measure an
offender’s likelihood of re-offending. The court also
considered testimony by Gipson at the classification
hearing, as well as a presentence-investigation report and
a victim-impact statement. Following our review of the
record, we have no difficulty concluding that the trial
court’s adjudication was based upon ample evidence. In
fact, it would have been difficult to find a defendant who
presented a combination of factors better suited to the
sexual-predator designation.
{78} We agree with appellate counsel’s conclusion
that Bevins’ pro se arguments have no merit. Accordingly,
we overrule the sixth assignment of error.
Conclusion
{79} In conclusion, we sustain Bevins’ fifth
assignment of error and overrule the remaining assignments
of error. We vacate the sentence and remand the cause for
resentencing. In all other respects, the judgment of the
trial court is affirmed.
Judgment accordingly.
WINKLER, J., concurs.
PAINTER, P.J., concurs in judgment only.
RALPH WINKLER, retired, from the First Appellate District,
sitting by assignment.
Please Note:
The court has recorded its own entry on the date of the
release of this decision.