[Cite as State v. Sylvester, 2016-Ohio-5710.]


                  Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 103841



                                        STATE OF OHIO
                                                         PLAINTIFF-APPELLEE

                                                   vs.

                                   TRAVIS SYLVESTER
                                                         DEFENDANT-APPELLANT




                                                JUDGMENT:
                                                 AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                    Case No. CR-14-588482-A

        BEFORE: Stewart, P.J., Boyle, J., and Blackmon, J.

        RELEASED AND JOURNALIZED: September 8, 2016
ATTORNEY FOR APPELLANT

P. Andrew Baker
11510 Buckeye Road
Cleveland, OH 44104


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

John Patrick Colan
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
MELODY J. STEWART, P.J.:

       {¶1} A jury found defendant-appellant Travis Sylvester guilty of counts of rape,

gross sexual imposition, and kidnapping — offenses committed against two of his

girlfriend’s children with whom he lived and who were less than ten years of age at the

time of the crimes. The 11 assignments of error raised in this appeal broadly challenge

the evidence supporting his guilt, trial errors committed by the court and counsel, and

sentencing. We find no error and affirm.

                                    I. Evidentiary Issues

       {¶2} Issues raising the sufficiency of the evidence are potentially dispositive — if

found to have merit, they would result in acquittal — so we first address Sylvester’s

assignments of error that challenge the sufficiency of the evidence.          In his ninth

assignment of error, Sylvester argues that the convictions for gross sexual imposition

committed against each victim were not based on legally sufficient evidence; in his third

assignment of error, he argues that the court had insufficient evidence to find him guilty

of a sexual motivation specification; in his seventh assignment of error, he argues that the

state failed to offer evidence of venue.
       {¶3} “Sufficiency review essentially addresses whether ‘the government’s case

was so lacking that it should not have even been submitted to the jury.’” Musacchio v.

United States, 577 U.S.___, 136 S.Ct. 709, 715, 193 L.Ed.2d 639 (2016), quoting Burks v.

United States, 437 U.S. 1, 16, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) (emphasis deleted).

The Due Process Clause of the United States Constitution requires criminal convictions to

be based on legally sufficient evidence. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979). The evidence is considered “legally sufficient” if, after

viewing the evidence most favorably to the state, “any rational trier of fact could have

found the essential elements of the crime proven beyond a reasonable doubt.” State v.

Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. This is

a quantitative standard of evidence that looks only at whether any rational trier of fact

could find that the evidence existed; in other words, did the state offer any evidence going

to each essential element of the offense. State v. Thompkins, 78 Ohio St.3d 380, 386,

678 N.E.2d 541 (1997). If so, the evidence is legally sufficient for purposes of the Due

Process Clause. The sufficiency of the evidence standard requires great deference to the

trier of fact. A reviewing court “faced with a record of historical facts that supports

conflicting inferences must presume — even if it does not affirmatively appear in the

record — that the trier of fact resolved any such conflicts in favor of the prosecution, and

must defer to that resolution.” Cavazos v. Smith, 565 U.S. 1, 132 S.Ct. 2, 181 L.Ed.2d

311 (2011), quoting Jackson at 326.
       {¶4} In his ninth assignment of error, Sylvester complains that the state failed to

offer evidence sufficient to prove the offense of gross sexual imposition as charged in

Counts 5 and 12 of the indictment. With respect to Count 5, he maintains that the

victim’s testimony that he “humped” her did not establish the elements of gross sexual

imposition.

       {¶5} Count 5 of the indictment charged Sylvester with gross sexual imposition

under R.C. 2907.05(A)(4): no person shall have sexual contact with another when the

other person is less than 13 years of age. “Sexual contact” is defined in R.C. 2907.01(B)

as “any touching of an erogenous zone of another, including without limitation the thigh,

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

sexually arousing or gratifying either person.”

       {¶6} Victim J.D. testified that on the first occasion when Sylvester assaulted her,

he “he humped me and put his penis in my mouth.” When asked what she meant by

“humped,” she testified, “Like he — he will take off his pants. He will pull my pants all

the way down, and he will start humping me” to the point where she felt “[s]omething

going inside my body.”     J.D. went on to testify that Sylvester again “humped” her in a

hotel room and again on August 18, 2014, the day after she reported his acts to her

mother.
       {¶7} The circumstances described by J.D. could cause a rational trier of fact to

conclude that Sylvester’s actions were directed towards J.D.’s erogenous zone for his own

sexual gratification. J.D.’s testimony showed that the word “hump” was used as a term

for simulated sexual intercourse or copulation. She testified that Sylvester ground his

penis against her buttocks. Sylvester himself admitted in a police interview that he

masturbated and ejaculated onto J.D.’s back. This was sufficient evidence to establish

the elements of gross sexual imposition.

       {¶8} Sylvester next argues that the state failed to offer sufficient evidence of gross

sexual imposition with respect to Count 12 and victim J.B. He maintains that J.B.

testified to conduct that might have established rape, but he was acquitted of the rape

charge against that victim and no lesser included offense instruction on gross sexual

imposition was given to the jury.

       {¶9} Like Count 5, Count 12 charged gross sexual imposition under R.C.

2907.05(A)(4). J.B. testified that Sylvester put his penis “in my mouth and my bottom.”

Even if the jury did find Sylvester not guilty of rape based on J.B.’s testimony, a rational

trier of fact could find testimony showing that Sylvester put his penis in J.B.’s “bottom”

established that he touched her erogenous zone for purposes of sexual gratification.

       {¶10} Sylvester elected to try certain sexually violent predator specifications to the

court and was found guilty on all. In his third assignment of error, he complains that

there was insufficient evidence that he was likely to commit sex crimes in the future.
      {¶11} If an offender is charged with a violent sex offense, the indictment may

contain a specification that the offender is a sexually violent predator.     See R.C.

2941.148(A). Under R.C. 2971.01(H), a “sexually violent predator” means a person who

“commits a sexually violent offense and is likely to engage in the future in one or more

sexually violent offenses.” The offenses of rape under R.C. 2907.02 and gross sexual

imposition under R.C. 2907.05(A)(4) are considered “violent sex offenses.” See R.C.

2971.01(L)(1).

      {¶12} Having been duly convicted of rape and gross sexual imposition, the only

question before the court on the sexual violent predator specification was whether

Sylvester was likely to engage in the future in one or more sexually violent offenses.

The court can find guidance on that question from the non-exclusive list of factors set

forth in R.C. 2971.01(H)(2).
       {¶13} Sylvester argues that none of the R.C. 2971.01(H)(2) factors are present and

that the court essentially found him guilty of the specification solely based on the

underlying charges.     While it is true that none of the express factors of R.C.

2971.01(H)(2) are applicable, the state pointed to statements Sylvester made during his

police interview that would fall within the “any other relevant evidence” catchall

provision of R.C. 2971.01(H)(2)(f). Significantly, Sylvester admitted that he was unable

to control his sexual impulses when around “women.” He testified that at the time he

committed the offenses, he was in a relationship with the victims’ mother and was

“dating” three or four other women. While infidelity is not an indication that an offender

will engage in future sexually violent offenses, Sylvester appeared to concede that he had

an uncontrollable sexual impulse. He gave in to that impulse over a lengthy period of

time in which he raped and masturbated on two children under the age of ten. That was

compelling evidence to support a finding that Sylvester was likely to engage in one or

more sexually oriented offenses in the future.

       {¶14} Sylvester’s seventh assignment of error is that the state failed to prove venue

for Counts 2 and 5. J.D. testified that the events relating to those counts occurred in a

hotel room when she and her family “were out of town to see my uncle.” Sylvester

argues that the state failed to prove the location of the “out of town” hotel, so it did not

establish venue for those counts beyond a reasonable doubt.

       {¶15} In State v. Jackson, 141 Ohio St.3d 171, 2014-Ohio-3707, 23 N.E.3d 1023,

the Ohio Supreme Court stated:
       Venue is not a material element of any offense charged. State v. Smith, 87
       Ohio St.3d 424, 435, 2000 Ohio 450, 721 N.E.2d 93 (2000), citing State v.
       Headley, 6 Ohio St.3d 475, 477, 6 Ohio B. 526, 453 N.E.2d 716 (1983).
       The elements of the offense charged and the venue of the matter are
       separate and distinct. State v. Draggo, 65 Ohio St.2d 88, 90, 418 N.E.2d
       1343 (1981). Nevertheless, venue is a fact that must be proved beyond a
       reasonable doubt unless it is waived by the defendant. Headley at 477.

Id. at ¶ 143.

       {¶16} Sylvester did not object to venue at trial, so he forfeited all but plain error.

Id. at ¶ 142. No plain error is shown. As the state notes, R.C. 2901.12(H) states that

when an offender, as part of a course of criminal conduct, commits offenses in different

jurisdictions, “the offender may be tried for all of those offenses in any jurisdiction in

which one of those offenses or any element of one of those offenses occurred.”

       {¶17} The evidence showed that despite there being only three separately charged

instances of sexual assault, the two victims collectively testified that Sylvester assaulted

them many times.      This established a criminal course of conduct. In addition, the

offenses involved the same victims and were committed as part of Sylvester’s relationship

to the victims. There is no question that some of the assaults occurred in Cuyahoga

County, so the possibility that some of the assaults may have occurred in a different

location does not defeat venue. See State v. Fowler, 27 Ohio App.3d 149, 154, 500

N.E.2d 390 (8th Dist.1985).
       {¶18} Sylvester’s eighth assignment of error is that the jury’s guilty verdicts were

against the manifest weight of the evidence. He argues that the physical evidence against

him was “far from overwhelming” and that his inability to remain monogamous during

his relationship with the victims’ mother allowed the mother to persuade the victims to

make false accusations against him.

       {¶19} The manifest weight of the evidence standard of review requires us to

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, 33 Ohio App.3d

339, 340, 515 N.E.2d 1009 (9th Dist.1986). The use of the word “manifest” means that

the trier-of-fact’s decision must be plainly or obviously contrary to all of the evidence.

This is a difficult burden for an appellant to overcome because the resolution of factual

issues resides with the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212

(1967), paragraph one of the syllabus. The trier of fact has the authority to “believe or

disbelieve any witness or accept part of what a witness says and reject the rest.” State v.

Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964).
       {¶20} Although the state did not offer a lot of physical evidence, what it did offer

was compelling: the underwear that J.D. was wearing when she told her mother that she

had just been sexually assaulted by Sylvester contained his DNA on the back panel.

Sylvester argues that it was likely that his DNA found its way onto J.D.’s underwear

because the underwear was in the same laundry basket as his soiled clothing. The jury

rejected that theory, no doubt because the location of his DNA was consistent with J.D.’s

testimony that Sylvester put his penis in her bottom. And consistent with the DNA

evidence, examinations of both girls showed that they had recent or “fresh” anal tearing

consistent with an external source of injury.

       {¶21} In addition to the DNA evidence, Sylvester admitted that he told both a

police detective and the victims’ mother that he “jerked off” on J.D.’s back. What is

more, he admitted in his police interview that he would “always” get an erection from any

woman he saw and that he was “out of control” when he became aroused. He told the

police that he had a great life but threw it all away for a “nut.” The shocking nature of

Sylvester’s offenses were entirely consistent with these admitted sexual impulses.

       {¶22} The jury did not lose it way by finding Sylvester guilty.

                                      II. Trial Errors

       {¶23} We have grouped the following arguments under the heading of trial errors:

that defense counsel was ineffective; that the court erred by allowing the state to amend

the indictment; that jury instructions on kidnapping were defective; and that the court

erred by allowing a substitute judge to accept the jury’s verdict.
        {¶24} The fifth assignment of error complains that the court erred by allowing the

state to amend the sexually violent predator specifications to change the ages of the

children from “under thirteen years of age but ten years of age or older at the time of the

commission of the offense” to conform to trial evidence showing that both victims were

less than ten years of age. Sylvester argues that this changed the punishment for the

offense because the sexually violent predator specification required the court to impose a

penalty of life in prison without parole.

        {¶25} The age range specified in the indictment was indisputably a clerical error.

This was so not only because the indictment also contained the dates of birth for both

victims, but because both victims gave testimony confirming that their dates of birth were

correctly stated in the indictment. Defense counsel had no objection to the amendment.

Crim.R. 7(D) allows the court to amend an indictment with respect to any variance with

the evidence, provided no change is made in the name or identity of the crime charged.

The court’s decision to allow an amendment to the specifications simply corrected the

error in the indictment. State v. Baer, 7th Dist. Harrison No. 07 HA 8, 2009-Ohio-3248,

¶ 23.
       {¶26} The fourth assignment of error is that defense counsel was ineffective for

agreeing to the amendment of the indictment. We summarily overrule this assignment of

error because defense counsel did not violate any essential duty by not objecting to the

amendment. In discussions relating to his rejection of plea offers made by the state,

Sylvester was told several times that he faced a life sentence without the possibility of

parole. See tr. 19, 21, 53, 63. With all parties understanding that the indictment charged

offenses against victims who were less than ten years of age, counsel did nothing more

than concede a clear, clerical error.

       {¶27} The tenth and eleventh assignments of error relate to the jury instructions on

kidnapping.

       {¶28} Counts 8 and 15 charged Sylvester with kidnapping under R.C.

2905.01(A)(4). That section states that no person shall by force, threat, or deception

purposely remove or restrain the liberty of another for purpose of engaging in sexual

activity with the person against the person’s will. Both counts contained furthermore

clauses stating that the victim of each offense was under 18 years of age. The verdict

forms submitted to the jury required it to find as a matter of fact whether each victim was

less than 18 years of age.
       {¶29} Sylvester argues that the jury’s finding that both victims were less than 18

years of age was irrelevant to a finding that the victims were less than ten years of age at

the time he is alleged to have committed his offenses. Why this should matter is not

clear. The jury’s finding that the victims were under the age of 18 at the time of

Sylvester’s offenses did not preclude the court’s independent verdict on the sexually

violent predator specification that the victims were in fact less than ten years of age at the

time of the offenses. And for purposes of the sexually violent predator specification, the

court’s determination that the victims were under the age of ten was all that mattered

given that Sylvester agreed to waive a trial by jury on those specifications and have the

judge hear them. It was entirely consistent for the jury to find that the victims were less

than 18 years of age and for the court to make a second finding that the victims were also

less than ten years of age. In any event, the jury verdict forms for the rape counts listed

the date of birth for both victims and the jury returned verdicts affirming those dates of

birth. No plain error is shown on the record.

       {¶30} In addition, we disabuse Sylvester of the idea that the sexually violent

predator specification somehow changed the degree of the felony for the kidnapping

counts. Those counts were charged as first-degree felonies and remained so regardless

of the specifications — a first-degree felony is the highest degree of felony, so the

specifications charged in this case could not change that fact. A guilty finding on the

specifications only enhanced the penalty; it did not change the degree of the offense.

State v. Hamm, 8th Dist. Cuyahoga No. 103230, 2016-Ohio-2938, ¶ 7.
         {¶31} When the jury returned to deliver its verdict, the judge presiding over the

trial was unavailable, so a different judge accepted the jury’s verdict. Sylvester did not

object to this procedure, so he forfeited the claim for appellate review.          State v.

Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 15.

         {¶32} Sylvester now argues in his first assignment of error that it was plain error

for the substitute judge to take the jury’s verdict in the absence of a record to show that

the judge had been properly selected by the administrative judge of the court of common

pleas.    Sylvester has done nothing to show that he suffered any prejudice — the

substitute judge did nothing more than receive the jury’s verdict and set the matter for

sentencing before the assigned judge. Sylvester’s arguments rely on speculation as to

what might have happened had the jury posed any questions to a substitute judge whose

unfamiliarity with the case would leave the substitute judge unprepared to answer those

questions. The jury asked no questions of the substitute judge, so Sylvester’s arguments

are moot. In any event, speculation does not show plain error. State v. Frazier, 115

Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, ¶ 108.

                                    III. Sentencing Issues

         {¶33} The last category of error claimed by Sylvester relates to sentencing: the

second assignment of error complains that the court erred by refusing to find some of the

offenses were allied and should merge for sentencing; the sixth assignment of error

complains that the court erred by ordering consecutive service of some of his sentences.
       {¶34} A defendant cannot be convicted of more than one allied offense of similar

import. R.C. 2941.25(A). We determine whether offenses are allied offenses of similar

import within the meaning of R.C. 2941.25 by evaluating three separate factors: “the

conduct, the animus, and the import.” State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995,

34 N.E.3d 892, paragraph one of the syllabus.

       [A] defendant whose conduct supports multiple offenses may be convicted
       of all the offenses if any one of the following is true: (1) the conduct
       constitutes offenses of dissimilar import, (2) the conduct shows that the
       offenses were committed separately, or (3) the conduct shows that the
       offenses were committed with separate animus.

Id. at paragraph three of the syllabus.

       {¶35} In his second assignment of error, Sylvester complains that the court should

have merged Counts 1 (rape) and 8 (kidnapping) for sentencing. J.D. testified that the

events giving rise to these counts arose when Sylvester “forced me to go in my mom’s

room, and I didn’t want to, so he dragged me to my mom’s room.” She explained that

Sylvester forced her to the room as follows: “Like he pushed me by my back. And a

couple of times I had fell and then he pushed me to my mom’s room.” J.D.’s testimony

showed that the force Sylvester applied to drag her into her mother’s room was different

from the rape itself, which consisted of his undressing her and putting his penis in her

mouth.    Under the second prong of the Ruff analysis, the kidnapping was committed

separately from the rape.
      {¶36} Sylvester also argues that Count 1 (rape) and Count 4 (gross sexual

imposition) should have merged for sentencing. The evidence showed that the rape

consisted of Sylvester putting his penis in J.D.’s mouth; the gross sexual imposition

consisted of him rubbing his penis between her buttocks. We agree that these were

separately committed offenses that do not merge.

      {¶37} Finally, Sylvester argues that Count 12 (gross sexual imposition) and Count

15 (kidnapping) committed against J.B. should merge. J.B. testified that Sylvester “told

me to come here, so I can go in the room.” She complied and agreed that his sexual

assaults “happened in the room.” The state argues that Sylvester forced her into the

room by intimidation — the evidence showed that Sylvester not only lived with the

children, but disciplined them for disobedience.      J.B. testified that Sylvester had

“whopped” her before and that she capitulated to his order to go into the bedroom,

stating, “I don’t know what he would do to me if I didn’t go so — I was scared.”

Although Sylvester’s demand to J.B. did not involve the kind of overt force that J.D.

experienced, J.B. was under compulsion to comply given Sylvester’s position of authority

over her and the corporal punishment she might receive if she did not obey. That

compulsion was enough to establish her kidnapping as conduct committed separately

from the gross sexual imposition.

      {¶38} The sixth assignment of error is that the court’s sentencing entry imposed

consecutive sentences but that it never advised Sylvester during sentencing exactly which

counts would be served consecutively.
       {¶39} The court imposed the following sentences: Count 1, life without parole;

Count 4, five years to life; Count 5, five years to life; Count 8, 15 years to life; Count 12,

five years to life; and Count 15, 15 years to life. The court made the requisite findings

for imposing consecutive sentences under R.C. 2929.14(C)(4), but did not indicate what

sentences were to be served consecutively. In the sentencing entry, the court ordered that

Counts 1, 4, 5, and 8 be served concurrently; that Counts 12 and 15 be served

concurrently; but that Counts 1, 4, 5, and 8 be served consecutively to Counts 12 and 15.

       {¶40} Sylvester did not object to his sentences at trial. By failing to object to the

imposition of his consecutive sentences, he forfeited this issue, absent plain error. State

v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 152, citing State v.

Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 377.

       {¶41} “Appellate courts have discretion to correct ‘[p]lain errors or defects

affecting substantial rights[.]’” In re A.G., Slip Opinion No. 2016-Ohio-3306, ¶ 19,

quoting Crim.R. 52(B). In so exercising that discretion, we do so “with the utmost

caution, under exceptional circumstances and only to prevent a manifest miscarriage of

justice.” State v. Long, 53 Ohio St.2d 91, 93, 372 N.E.2d 804 (1978), paragraph two of

the syllabus.
       {¶42} Sylvester cites no precedent to support his claim of error and, in fact,

precedent contrary to his position exists. See State v. Evans, 4th Dist. Scioto No. 1675,

1988 Ohio App. LEXIS 1315, at *5 (Apr. 5, 1988). Even if we assume without deciding

that the court’s failure to specifically state at sentencing which counts were to be served

consecutively was error, Sylvester did not suffer any prejudice from the error.         He

received a mandatory sentence of life in prison without the possibility of parole — any

consecutive sentences were subsumed under the sentence of life without the possibility of

parole. He will serve no additional time, so a remand would be pointless. There is no

manifest miscarriage of justice to cause us to find plain error and reverse.

       {¶43} Judgment affirmed.

       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



______________________________________________
MELODY J. STEWART, PRESIDING JUDGE

MARY J. BOYLE, J., and
PATRICIA ANN BLACKMON, J., CONCUR
