[Cite as State v. Brown, 2013-Ohio-1982.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 98540



                                      STATE OF OHIO
                                                   PLAINTIFF-APPELLEE

                                             vs.

                                 CHARLES E. BROWN
                                                   DEFENDANT-APPELLANT




                               JUDGMENT:
                   AFFIRMED IN PART, REVERSED IN PART
                         AND VACATED IN PART


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-552452

         BEFORE: E.A. Gallagher, J., Keough, P.J., and E.T. Gallagher, J.

         RELEASED AND JOURNALIZED:                 May 16, 2013
ATTORNEY FOR APPELLANT

Edward M. Heindel
450 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Kevin R. Filiatraut
James Hofelich
Assistant County Prosecutors
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:

       {¶1} Defendant-appellant, Charles Brown, appeals from his conviction in the

Cuyahoga County Court of Common Pleas for criminal trespass, attempted rape,

kidnapping with sexual motivation and two counts of theft. We affirm, in part, and

reverse, in part.

       {¶2} On July 13, 2011, at approximately 12:30 p.m., Robert Williams, a

custodial technician employed at Trinity Towers apartment complex in Bedford Heights,

Ohio, was returning from his lunch break when he encountered Brown and a woman

named K.W. in a stairwell inside one of the Trinity Towers apartment buildings. In

passing, Williams overheard Brown asking K.W. for her phone number.       Surveillance

video showed Williams exiting the stairwell followed shortly thereafter by Brown and

K.W. The video showed Brown and K.W. walking briefly in the hallway with Brown’s

arms around her before she uncoupled from Brown and exited the hallway via the same

door through which Robert Williams had exited. The video showed Brown exiting

through a different door.

       {¶3} Williams testified that while walking towards his office building to resume

work, he heard K.W. behind him mumbling, “like help, help or something.”            He

dismissed K.W.’s mumbling because she was known to him from his time working at

Trinity Towers and she had a reputation for having some type of mental condition where
he would see her “talking to the wall or talking to the garbage dumpster * * *.”

          {¶4} Dontae McKissic also testified that he was familiar with K.W. from living

at Trinity Towers, that he knew her to act strangely and had previously observed her

walking in the parking lot and talking to herself. On July 13, 2011, McKissic saw

K.W., Brown and two other males in the parking lot. McKissic observed K.W. entering

her own first floor apartment from a patio entrance and overheard Brown, who was on

K.W.’s patio, state to his two companions, “lets go up in here.” McKissic entered the

apartment building to take an elevator to his own unit but, motivated by his belief that

K.W. and Brown did not know one another and concerned for her safety, he instead went

to the hallway outside her apartment and heard a voice saying “help me.”

          {¶5} McKissic entered K.W.’s unlocked apartment unit and saw Brown and

K.W. in a back bedroom. K.W. was lying on a bed and Brown was attempting to

remove her pants, which were at her knees.      Brown stood over her with his own pants

down. McKissic again heard K.W. ask for help. McKissic testified that Brown looked

over his shoulder, saw him and moved to close the bedroom door.             At this point,

McKissic exited the apartment to identify the unit’s number and call the Bedford Heights

police.     While on the phone with police, he reentered the apartment to find that Brown

had left.    McKissic gave a description of Brown to police and Brown was apprehended,

with a purse, outside the apartment building. The contents of the purse indicated that it

belonged to K.W.
       {¶6} K.W. was transported by police to Hillcrest Hospital but refused consent

for a sexual assault examination and provided incoherent answers to questioning.

K.W.’s pants had been removed and she was clothed in a comforter.         Police examined

both the comforter and a sheet found in K.W.’s apartment but did not find evidence of

Brown’s DNA.

       {¶7} Brown was indicted on July 21, 2011, charged with aggravated burglary,

two counts of attempted rape, two counts of kidnapping with sexual motivation and two

counts of robbery in violation of R.C. 2911.02.

       {¶8} The case proceeded to a jury trial on the above counts and the jury returned

a verdict of not guilty on the aggravated burglary charge but guilty of the lesser-included

offense of criminal trespass in violation of R.C. 2911.21(A)(1), guilty of attempted rape

in violation of R.C. 2923.02 and R.C. 2907.02(A)(2), not guilty of attempted rape in

violation of R.C. 2923.02 and R.C. 2907.02(A)(1), guilty of kidnapping in violation of

R.C. 2905.01(A)(4) with sexual motivation pursuant to R.C. 2941.147(A), not guilty of

kidnapping in violation of R.C. 2905.01(A)(2) and not guilty of the two counts of robbery

but guilty of two lesser-included charges of theft in violation of R.C. 2913.02(A)(1).

       {¶9} Brown waived his right to a jury trial on the notice of prior conviction and

repeat violent offender specifications attached to the aggravated burglary, attempted rape,

kidnapping, and robbery charges, and to the sexually violent predator specifications

attached to the rape and kidnapping charges.      The trial court found Brown guilty of all
the specifications.   After a hearing, the court found him to be a sexually violent

predator.

       {¶10}    Brown was sentenced to a jail term of 30 days on the criminal trespass

charge and 180 days for each charge of theft.   The trial court found Brown’s convictions

for attempted rape and kidnapping to be allied offenses and merged the convictions at

sentencing.    The state elected to proceed with sentencing under the kidnapping charge

and the trial court imposed a prison term of 12 years to life on that count.    The trial

court ordered all the sentences on all counts to be served concurrently.

       {¶11}    Brown appeals asserting three assignments of error.

                                  Assignment of Error I

       The convictions for attempted rape, kidnapping and the sexually violent
       predator specification were against the manifest weight of the evidence,
       and were not supported by sufficient evidence.

                                  Assignment of Error II

       The trial court erred when it sentenced Brown to 12 years to life as that
       sentence was contrary to law.

                                 Assignment of Error III

       The trial court erred when it permitted Detective Sorace to offer his lay
       opinion as to the [sic] whether the encounter between K.W. and Brown was
       consensual.


       {¶12} For Brown’s first assignment of error, this court has said, in evaluating a

sufficiency of the evidence argument, courts are to assess not whether the state’s
evidence is to be believed but whether, if believed, the evidence against a defendant

would support a conviction. 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. State v. Thompkins, 78

Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541. The weight and credibility of the

evidence are left to the trier of fact. State v. Jackson, 8th Dist. No. 86542,

2006-Ohio-1938, ¶ 23.

       {¶13}      A manifest weight challenge, on the other hand, questions whether the

prosecution met its burden of persuasion.          State v. Byrd, 8th Dist. No. 98037,

2012-Ohio-5728, ¶ 27.       When considering a manifest weight challenge, a reviewing

court reviews the entire record, weighs the evidence and all reasonable inferences

therefrom, considers the credibility of the witnesses and determines whether the finder of

fact clearly lost its way. State v. Jackson, 8th Dist. No. 86542, 2006-Ohio-1938, ¶ 29. A

reviewing court may reverse the judgment of conviction if it appears that 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. Id.

       {¶14} Brown argues that the state presented insufficient evidence to sustain his

convictions for attempted rape, kidnapping and the sexually violent predator

specifications.
       {¶15}    Brown was convicted of attempted rape in violation of R.C. 2923.02 and

R.C. 2907.02(A)(2). R.C. 2907.02(A)(2) states: “No person shall engage in sexual

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

force or threat of force.”

       {¶16}    The attempt statute, R.C. 2923.02(A) provides:

       No person, purposely or knowingly, and when purpose or knowledge is
       sufficient culpability for the commission of an offense, shall engage in
       conduct that, if successful, would constitute or result in the offense.

       {¶17}    Sexual conduct is defined in R.C. 2907.01(A) as:

       vaginal intercourse between a male and female; anal intercourse, fellatio,
       and cunnilingus between persons regardless of sex; and, without privilege
       to do so, the insertion, however slight, of any part of the body or any
       instrument, apparatus, or other object into the vaginal or anal opening of
       another. Penetration, however slight, is sufficient to complete vaginal or
       anal intercourse.

       {¶18}    The Ohio Supreme Court has held that a criminal attempt is an act or

omission constituting a substantial step toward committing a crime. State v. Woods, 48

Ohio St.2d 127, 357 N.E.2d 1059 (1976), overruled in part on other grounds,       State v.

Downs, 51 Ohio St.2d 47, 53, 364 N.E.2d 1140 (1977). The act “must be strongly

corroborative of the actor’s criminal purpose” in order to constitute a substantial step

toward the act, but need not be the last proximate act prior to the commission of the

offense.   Id., at paragraph one of the syllabus. This standard directs attention to overt

acts of the defendant that   “convincingly demonstrate” the defendant’s firm purpose to

commit the offense. Id. at 132. (Citations omitted.)
          While removing the victim’s clothing can amount to a “substantial step”
          toward the commission of rape, a defendant cannot be convicted of
          attempted rape solely on evidence that he removed the victim’s clothing.
          There must be evidence indicating purpose to commit rape instead of some
          other sex offense, such as gross sexual imposition, R.C. 2907.05, which
          requires only sexual contact.1

State v. Davis, 76 Ohio St.3d 107, 114, 1996-Ohio-414, 666 N.E.2d 1099.

          {¶19}   In State v. Heinish, 50 Ohio St.3d 231, 553 N.E.2d 1026 (1990), the Ohio

Supreme Court found evidence of a victim’s pants being pulled down and her blouse

opened, without more, to be insufficient to convict a defendant of attempted rape.         In

State v. Powell, 49 Ohio St.3d 255, 552 N.E.2d 191 (1990), the court found a defendant’s

order for the victim to undress was strongly corroborative of his intent to rape her

because he confessed he was going to have sex with her.         In State v. Lucas, 5th Dist.

No. 2005AP090063, 2006-Ohio-1675, the Fifth District Court of Appeals upheld a

conviction for attempted rape where the victim was knocked to the floor and the

defendant, pulling on the victim’s pants, stated, “the pants are coming off.” Id. at ¶ 23.

The defendant had his own pants down around his ankles at the time, was not wearing

underwear and at one point was laying on top of the victim.         Id. at ¶ 24.   The Fifth

District held that, “[the] act of lying on the victim with his genitals exposed to her vaginal

area while attempting to pull off her pants was a ‘substantial step’ to rape.” Id. at ¶ 27.

          {¶20}   This court vacated a defendant’s conviction for attempted rape in State v.



       Rape requires sexual conduct while gross sexual imposition, on the other
      1


hand, requires only sexual contact, defined as “any touching of an erogenous zone of
Jones, 8th Dist. No. 82978, 2004-Ohio-512, where the defendant ordered the victim to

remove her clothes at knife-point before fleeing when the victim called 911.         We held

that the record contained no evidence that the defendant attempted to engage in sexual

conduct with the victim or that he expressed an intent to do so.   Id. at ¶ 24.    We stated,

“[t]here were no ‘sexual advances’ toward [the victim] and no evidence that [the

defendant] performed an ‘overt act,’ such as unzipping his pants or removing his clothes,

that would indicate his intent to rape her.” Id. at ¶ 24.

         {¶21}   Unlike the situation presented in Jones, we find the present record

contains evidence that, viewed in a light most favorable to the prosecution, demonstrates

an intent on the part of Brown to rape the victim. Dontae McKissic observed Brown

standing over the victim, with his own pants down, attempting to remove the victim’s

pants.    Although McKissic could not state whether or not Brown was wearing

underwear at the time, the fact that Brown removed his own pants is indicative of his

intent to engage in sexual conduct with the victim and is inconsistent with an intent to

engage in mere sexual contact.     After Brown was discovered by McKissic and fled the

apartment, the victim was discovered unclothed from the waist down.               Under these

facts, we find that the state presented evidence indicating purpose to commit rape instead

of some other sex offense.




another * * *.” R.C. 2907.01(B).
       {¶22}   Brown’s conviction of kidnapping in violation of R.C. 2905.01(A)(4) is

similarly supported by sufficient evidence. R.C. 2905.01(A)(4) provides:

       (A) No person, by force, threat, or deception, * * * shall remove another
       from the place where the other person is found or restrain the liberty of the
       other person, for any of the following purposes:

       ***

       (4) To engage in sexual activity, as defined in section 2907.01 of the
       Revised Code, with the victim against the victim’s will * * *.

       {¶23}   R.C. 2907.01(C) defines sexual activity as “sexual conduct or sexual

contact, or both.”

       {¶24}   Brown argues that the state failed to prove that he engaged in any type of

sexual activity with the victim. Brown’s argument is misguided because the kidnapping

under R.C. 2905.01(A)(4) is complete when a person removes another or restrains the

other’s liberty for the purpose of engaging in sexual activity. State v. Fischer, 8th Dist.

No. 75222, 1999 Ohio App. LEXIS 5568 (Nov. 24, 1999). R.C. 2905.01(A)(4) requires

only that the restraint or removal occur for the purpose of nonconsensual sexual activity,

not that sexual activity actually take place. Id., citing State v. Powell, 49 Ohio St.3d

255, 552 N.E.2d 191 (1990).        As addressed above, the state presented sufficient

evidence of Brown’s purpose to engage in sexual activity with the victim when McKissic

testified that he observed Brown standing over the victim pulling her pants off.

       {¶25}   Although not raised in Brown’s arguments, we further note that the state

also offered sufficient proof to support his conviction of the sexual motivation
specification (R.C. 2941.147(A)) attached to the kidnapping charge. R.C. 2941.147(B)

adopts the definition of “sexual motivation” found in R.C. 2971.01(J): “a purpose to

gratify the sexual needs or desires of the offender.”       The testimony of McKissic

demonstrated such a purpose on the part of Brown.

       {¶26}   Finally, Brown argues that the evidence was insufficient for the trial court

to find him guilty of the sexually violent predator specifications pursuant to R.C.

2941.148 attached to the rape and kidnapping charges.      R.C. 2971.01(H)(1) defines a

“sexually violent predator” as “a person who, on or after January 1, 1997, commits a

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

violent offenses.” Brown’s convictions for attempted rape and kidnapping with a sexual

motivation qualify as sexually violent offenses pursuant to R.C. 2971.01.

       {¶27}   R.C. 2971.01(H)(2) provides a list of factors that may be considered as

evidence tending to indicate that there is a likelihood that the person will engage in the

future in one or more sexually violent offenses.   Brown argues that the trial court erred

in finding him to be a sexually violent predator because none of the R.C. 2971.01(H)(2)

factors are applicable to him.   We disagree.

       {¶28}   The following R.C. 2971.01(H)(2) factors are relevant to the present

analysis:

       (a) The person has been convicted two or more times, in separate criminal
       actions, of a sexually oriented offense or a child-victim oriented offense.
       For purposes of this division, convictions that result from or are connected
       with the same act or result from offenses committed at the same time are
       one conviction, and a conviction set aside pursuant to law is not a
       conviction.

       ***

       (f) Any other relevant evidence.

       {¶29}   Brown stipulated that he had been convicted of rape in violation of R.C.

2907.02(B) in Cuyahoga C.P. No. CR-374402. The state offered evidence that the

conviction stemmed from an incident that occurred on March 21, 1999.       The trial court

was free to consider this conviction in conjunction with his convictions in the present

case under R.C. 2971.01(H)(2)(a).         See, e.g., State v. Bruce, 8th Dist. No. 90897,

2009-Ohio-1067, ¶ 39; State v. Petkovic, 8th Dist. No. 97548, 2012-Ohio-4050, ¶ 49.

The state additionally offered evidence that in connection with Brown’s prior conviction

of rape he was adjudicated a sexual predator.         The state offered evidence that in

connection with his sex offender registration, Brown was subsequently convicted of a

manner of registering offense in violation of R.C. 2950.04 in 2007 and an attempted

failure to register offense in violation of R.C. 2923.02 and 2950.06 in 2010. Viewing

the evidence in a light most favorable to the prosecution, we conclude that any rational

trier of fact could have found, beyond a reasonable doubt, that appellant was a sexually

violent predator.

       {¶30}   Although not raised in Brown’s sufficiency arguments, we note that the

record is devoid of sufficient evidence to support two separate theft convictions. Brown

was convicted of two counts of theft in violation of R.C. 2913.02(A)(1), which provides:
       (A) No person, with purpose to deprive the owner of property or services,
       shall knowingly obtain or exert control over either the property or services
       in any of the following ways:

       (1) Without the consent of the owner or person
                                  authorized to give
                                  consent * * *.


       {¶31}   The state presented sufficient evidence to support only one conviction of

theft relating to Brown’s theft of K.W.’s purse. During closing arguments, the state

made reference to a cap recovered from Brown’s person at the time of his arrest.

However, there was no evidence presented indicating that this cap belonged to K.W.      In

fact, in the security camera footage introduced by the state where Robert Williams

identified Brown interacting with K.W. in a hallway prior to the incident in K.W.’s

apartment unit, Brown is seen wearing a black cap.            It is well established that

“[c]riminal convictions cannot rest upon mere speculation; the state must establish the

guilt of the accused by proof beyond a reasonable doubt.” State v. Haynes, 25 Ohio

St.2d 264, 270, 267 N.E.2d 787 (1971).         We find that the state failed to present

sufficient evidence to sustain Brown’s conviction to the second count of theft.

       {¶32}   With respect to Brown’s manifest weight argument, in light of the entire

record, we cannot say that the finder of fact clearly lost its way in finding him guilty of

attempted rape, kidnapping and the sexually violent predator specification. Although

this case presents an unusual factual situation where the victim did not testify as to the
non-consensual nature of the interactions, the circumstantial evidence, particularly the

testimony of Dontae McKissic, established Brown’s guilt of the above charges.

        {¶33}   Brown’s first assignment of error is sustained in part and overruled in

part.

        {¶34}    Regarding Brown’s second assignment of error, a review of felony

sentencing involves a two-step analysis: (1) whether the trial court complied with all

applicable rules and statutes to determine if the sentence was clearly and convincingly

contrary to law; and (2) whether the trial court abused its decision by imposing the

sentence. State v. Kalish, 120 Ohio St.3d 23, 2008- Ohio-4912, 896 N.E.2d 124, ¶ 4.

In the present instance Brown does not argue that the trial court abused its discretion in

sentencing him to 12 years to life for his conviction of kidnapping in violation of R.C.

2905.01(A)(4) with a sexual motivation specification pursuant to R.C. 2941.147(A) and a

sexually violent predator specification pursuant to R.C. 2941.148. Brown argues solely

that the trial court’s sentence for this offense was contrary to law.   We disagree.

        {¶35} R.C. 2971.03(A) directs the trial court to sentence a defendant convicted of

a first-degree felony, designated kidnapping offense committed on or after January 1,

2008, where the victim of the offense is not less than 13 years of age and the defendant

also is convicted of both a sexual motivation specification and a sexually violent predator

specification as follows:
           [the court] shall impose an indefinite term consisting of a minimum term
           fixed by the court that is not less than ten years and a maximum term of life
           imprisonment.”2

R.C. 2971.03(A)(3)(b)(ii).

           {¶36}   Brown’s sentence of 12 years to life is within the indefinite range

provided by the statute.      The trial court is not required to impose a term of          ten years,

specifically, as the minimum term in a sentence pursuant to R.C. 2971.03(A)(3)(b)(ii).

Twelve years to life, while not the minimum sentence the trial court could have imposed,

falls within the statutory range and thus is not contrary to law. See, e.g., State v. Austin,

1st Dist. No. C-110804, 2012-Ohio-4232, ¶ 26 (Upholding a sentence of 15 years to life

for rape with a sexually violent predator specification pursuant to identical indefinite

term language in R.C. 2971.03(A)(3)(d)(ii)); State v. Fisher, 8th Dist. No. 97685,

2012-Ohio-2394, ¶ 3 (noting that ten years to life is the minimum sentence that the court

could impose under identical indefinite term language in R.C. 2971.03(A)(3)(d)(ii).)

           {¶37}   Brown’s second assignment of error is overruled.

           {¶38} Regarding Brown’s third assignment of error, at trial, the state asked

Bedford Heights Detective Raymond Sorace if, during the course of his investigation, he

had uncovered any evidence indicating that the encounter between K.W. and Brown was

consensual. The trial court allowed the witness to answer over Brown’s objection and


         Brown argues that he should have been sentenced pursuant to R.C. 2905.01(C)(3). That
       2


provision is inapplicable to the present case because it pertains only to instances where the victim of
the offense is less than 13 years of age.
the detective answered, “no.”     Brown argues that the trial court improperly allowed the

detective to offer his lay opinion as to whether the encounter was consensual.

       {¶39}    “A trial court has broad discretion in admitting evidence. Absent an abuse

of that discretion and a showing of material prejudice, a trial court’s ruling on the

admissibility of evidence will be upheld.” Fackelman v. Micronix, 8th Dist. No. 98320,

2012-Ohio-5513, ¶ 17, citing State v. Martin, 19 Ohio St.3d 122, 129, 483 N.E.2d 1157

(1985).

       {¶40} Contrary to Brown’s assertions, the subject testimony did not involve an

opinion; Detective Sorace merely stated that he did not discover evidence of consent

during his investigation. He did not offer an opinion as to whether or not the encounter

was consensual.     The testimony at trial was clear that Dontae McKissic was the sole

witness to the encounter between Brown and K.W. Detective Sorace did not witness

any of the interactions between Brown and K.W. and contrary to Brown’s argument, the

state did not attempt to elicit his lay opinion as to the consensual nature of the encounter.

 Brown has demonstrated no prejudice from the above question and we cannot say that

the trial court abused its discretion in overruling his objection.

       {¶41}    Brown’s third assignment of error is overruled.

       {¶42}    The judgment of the trial court is affirmed in part and reversed in part.
      {¶43}    Brown’s conviction for theft in violation of R.C. 2913.02(A)(1) and the

sentence imposed thereon in connection with count seven is vacated.                Brown’s

remaining convictions are affirmed.

      It is ordered that appellant and appellee split the 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

lower 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.




EILEEN A. GALLAGHER, JUDGE

KATHLEEN ANN KEOUGH, P.J., and
EILEEN T. GALLAGHER, J., CONCUR
