[Cite as State v. Szorady, 2011-Ohio-1800.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 95045




                                     STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                  JOHN F. SZORADY
                                                       DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED



                               Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                                  Case No. CR-526119

        BEFORE:            Keough, J., Blackmon, P.J., and Jones, J.

        RELEASED AND JOURNALIZED: April 14, 2011
ATTORNEY FOR APPELLANT

Craig M. Jaquith
Office of Ohio Public Defender
Assistant State Public Defender
250 East Broad St., Ste. 1400
Columbus, OH 43215

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
Gregory Mussman
Jesse W. Canonico
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113




KATHLEEN ANN KEOUGH, J.:

      {¶ 1} Defendant-appellant, John F. Szorady, appeals from the trial

court’s judgment finding him guilty of rape, sexual battery, pandering

sexually-oriented matter involving a minor, intimidation, and possession of a

criminal tool, and sentencing him to 74 years incarceration. For the reasons

that follow, we affirm.

I.    Procedural History
      {¶ 2} In March 2009, a Cuyahoga County grand jury indicted Szorady

in a 108-count indictment in Case No. CR-522235.

      {¶ 3} In July 2009, a new indictment was issued in Case No.

CR-526119 concerning the same conduct. The new indictment included 62

counts:   29 counts of rape, 29 counts of sexual battery, one count of

pandering sexually-oriented material involving a minor, one count of

intimidating a witness, one count of possession of criminal tools, and one

count of corrupting another with drugs. The rape and sexual battery counts

carried repeat violent offender and sexually violent predator specifications.

The State subsequently dismissed the first indictment and proceeded on the

second indictment.

      {¶ 4} Szorady’s court-appointed counsel withdrew in May 2009 and the

court appointed new counsel for Szorady; one month later, counsel asked to

withdraw due to conflicts with Szorady. The trial court again appointed new

counsel for Szorady; after two months that lawyer moved to withdraw

because Szorady had written letters that contained allegations impugning the

lawyer’s integrity.   The court granted counsel’s motion to withdraw and

appointed another lawyer for Szorady. Shortly before trial, Szorady wrote to

the judge asking to waive his right to counsel.     After a hearing, Szorady

withdrew his request and the matter proceeded to a jury trial.
         {¶ 5} The trial court dismissed several counts at trial pursuant to

Crim.R. 29. The jury found Szorady guilty of the remaining counts, but the

trial court declared a mistrial prior to sentencing upon learning that the jury

had mistakenly considered an improper exhibit during deliberations.

         {¶ 6} After trial, counsel for Szorady moved to withdraw because

Szorady had filed a grievance against him.          In addition, Szorady filed a

motion to waive his right to counsel and represent himself at the rescheduled

trial.    In his motion, Szorady acknowledged that the court had appointed

four lawyers for him, but asserted that all four lawyers were, for various

reasons, deficient and that “the only way a valid and meaningful defense will

be prepared and presented in his behalf is if he does it himself.”

         {¶ 7} After a hearing, the trial court granted Szorady’s motion.

Subsequently, upon being advised that the Ohio Supreme Court had denied

Szorady’s affidavit of disqualification against the judge, the trial court again

set the matter for trial. Szorady waived his right to a jury trial and the case

was heard by the judge. Szorady represented himself during trial, with the

lawyer who represented him at the first trial serving as advisory counsel.

         {¶ 8} At the close of the State’s evidence, the trial judge dismissed four

counts of rape (counts 1, 2, 25, and 26), four counts of sexual battery (counts

30, 31, 52, and 53), one count of corrupting another with drugs (count 62), and

all of the sexually violent predator specifications. The court subsequently
found Szorady not guilty of counts 3, 8, 9, 12, 13, and 16 (rape), and counts

32, 33, 36, 37, 46, and 47 (sexual battery), and guilty of the remaining counts

of rape, sexual battery, pandering, intimidation, and possession of a criminal

tool, as well as the repeat violent offender specifications attached to the rape

and sexual battery convictions. The trial court merged the sexual battery

counts with the corresponding rape counts and sentenced Szorady to a total of

74 years incarceration; it also declared him to be a Tier III sex offender. This

appeal followed.

II.    The Victim’s Trial Testimony

       {¶ 9} E.S.,1 the victim, testified that during the relevant time period

she lived with her mother, grandmother, and brother in Cleveland.                              E.S.’s

mother had a romantic relationship with Szorady and in 2004, after he was

released from prison, Szorady moved in with her. E.S. was then 13 years

old. E.S. testified that from the time he moved in, Szorady was responsible

for “all of the parenting duties” regarding E.S. and her brother, including

disciplining them, setting house rules, and determining privileges.                            E.S.’s

mother worked the night shift Sundays through Thursdays at a local factory

and was gone between 10:00 p.m. and 8:00 a.m. those days.




       1
         We refer to the victim by her initials in accord with this court’s policy of protecting the
identities of child victims of crime.
      {¶ 10} E.S. testified that she was afraid of Szorady because when he

became angry, he was “violent, belligerent, [and] intimidating.” He would

slap her and her brother, and once grabbed her by her throat. Another time

he dragged E.S. out of school by her hair. E.S. testified that Szorady called

her names like “bitch, slut, whore, things like that.” Szorady also physically

abused E.S.’s mother, including slapping her, hitting her with a cabinet door,

and biting her nose. E.S. testified that Szorady and her mother used drugs at

home, including heroin, crack cocaine, ecstasy, and marijuana.

      {¶ 11} According to E.S., Szorady first raped her on a camping trip in

August 2004, when she was 13 years old. Szorady gave her alcohol until she

was drunk and passed out in his van. In the morning, she noticed blood in

her underwear and Szorady told her that she did “crazy things” when she was

drunk.

      {¶ 12} Later that summer, Szorady forced E.S. to ingest heroin until she

was incapacitated, and then penetrated her vagina with his finger. He then

forced her to perform oral sex on him, and then had intercourse with her.

      {¶ 13} E.S. testified that Szorady raped her “almost every day” from

August 2004 to January 2009, when she finally told her then-boyfriend what

had been happening. She said that Szorady would typically rape her while

her mother was at work. Around his birthday in November, Szorady would

expect “special nights” of sexual activity from E.S. as a gift to him.
      {¶ 14} E.S. testified that her mother typically took a week off work

around Christmas, thereby limiting Szorady’s access to E.S. Szorady would

tell E.S. that he expected special sexual favors from her before her mother’s

vacation and would rape her for longer periods of time and in a rougher

fashion on those nights.   In addition, Szorady demanded that E.S. wear

special outfits on those occasions and would rape her anally. E.S. testified

she was afraid that if she refused his advances, Szorady would become violent

with her, her brother, or her grandmother. She testified further that she

became pregnant by Szorady in March 2008, and had an abortion.

      {¶ 15} Szorady moved to his own apartment in January 2009.     Szorady

and E.S.’s mother twice arranged for E.S. to stay at Szorady’s home so he

could bring her to school in the morning.       E.S. testified that on both

occasions, Szorady forced her to perform oral sex on him and engage in

intercourse.   On one of the occasions, he showed her a video file on his

computer that depicted him and E.S. having sex.

      {¶ 16} After Szorady moved out, E.S. tried to distance herself from him

in order to avoid his advances. But Szorady would call her, text her, and

leave voice mail messages expressing his displeasure that she was avoiding

him. He threatened to give photographs of him and E.S. having sex to her

school, her grandmother, and her boyfriend.
       {¶ 17} One evening in February 2009, Szorady became unhappy after

learning that E.S. was at her boyfriend’s house and began texting and calling

her incessantly.   When E.S.’s boyfriend told her that Szorady was acting

more like a jealous boyfriend than a stepfather, E.S. broke down and told him

that Szorady had been raping her for years.       The boyfriend contacted a

school counselor, who called the police.

       {¶ 18} The police subsequently searched Szorady’s home, where they

found computer files that showed Szorady raping E.S.       In addition, they

found numerous text messages to E.S. on Szorady’s cell phone. In one, he

told her what type of sex he expected that night; in another, he thanked her

for the sex; and in others, he threatened to release the videos to various

persons if she refused to have sex with him.

III.   Waiver of Counsel

       {¶ 19} In his first assignment of error, Szorady argues that the trial

court committed reversible error because it accepted his waiver of counsel

without ascertaining that it was knowingly, intelliently, and voluntarily

made.

       {¶ 20} “The Sixth Amendment, as made applicable to the states by the

Fourteenth Amendment, guarantees that a defendant in a state criminal trial

has an independent constitutional right of self-representation and that he

may proceed to defend himself without counsel when he voluntarily, and
knowingly and intelligently elects to do so.” State v. Gibson (1976), 45 Ohio

St.2d 366, 345 N.E.2d 399, paragraph one of the syllabus, citing Faretta v.

California 91975), 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562.

      {¶ 21} However, “courts are to indulge in every reasonable presumption

against the waiver of a fundamental constitutional right, including the right

to be represented by counsel.” State v. Dyer (1996), 117 Ohio App.3d 92, 95,

689 N.E.2d 1034.     “In order to establish an effective waiver of right to

counsel, the trial court must make sufficient inquiry to determine whether

defendant fully understands and intelligently relinquishes that right.”

Gibson, paragraph two of the syllabus. “‘To be valid, such waiver must be

made with an apprehension of the charges, the statutory offenses included

within them, the range of allowable punishments thereunder, possible

defenses to the charges and circumstances in mitigation thereof, and all other

facts essential to a broad understanding of the matter.’” Gibson at 406,

quoting Von Moltke v. Gillies (1948), 332 U.S. 708, 723, 68 S.Ct. 316, 92

L.Ed 309.

      {¶ 22} The record demonstrates that the trial judge reviewed the

charges and all possible penalities with Szorady.       The trial court also

informed Szorady that his former lawyer would act as advisory counsel for

him during trial and discussed the limitations of advisory counsel’s role. The

trial court also advised Szorady of how the trial would be handled and his
appeal rights. Szorady stated that he understood the charges and possible

penalties, the role of advisory counsel, and that he would be bound to the

rules of evidence, but still wished to represent himself. In light of the

foregoing, we find that Szorady knowingly, voluntarily, and intelligently

waived his right to counsel.

       {¶ 23} Szorady asserts that the trial court’s colloquy was deficient

because the judge made no effort to determine that his waiver was truly

voluntary, rather than forced by legitimate concerns regarding his appointed

counsel.   But the record is clear that Szorady did not, in fact, have

legitimate concerns about his appointed counsel. He found fault with all four

lawyers the court had appointed for him, forcing three of his lawyers to ask to

withdraw, and, as evidenced by his affidavit of prejudice, was also unhappy

with the trial judge. The trial judge was well aware that Szorady’s concerns

about defense counsel were not valid and, hence, there was no reason to

inquire about the legitimacy of Szorady’s concerns.   Appellant’s         first

assignment of error is therefore overruled.

III.   The Rape Shield Statute

       {¶ 24} During trial, E.S. testified that she became pregnant in March

2009 by Szorady and subsequently had an abortion. The trial court barred

Szorady from questioning E.S. regarding whether she had sex with other

individuals in the time frame that would have been consistent with the
aborted pregancy. In his second assignment of error, Szorady contends that

the trial court’s ruling was in error and that he should have been allowed to

cross-examine E.S. regarding her sexual activity with persons other than

him.

       {¶ 25} R.C. 2907.02(D), commonly known as the rape shield statute,

provides that evidence of the victim’s prior sexual activity with a person other

than the defendant is inadmissible “unless it involves evidence of the origin of

semen, pregnancy, or disease, * * * and only to the extent that the court finds

that the evidence is material to a fact at issue in the case and that its

inflammatory or prejudicial nature does not outweigh its probative value.”

       {¶ 26} In determining whether prior acts should be admitted, the court

must balance the interests of the victim, which the statue is designed to

protect, and the defendant’s right to confront and cross-examine the State’s

witnesses. State v. Williams (1986), 21 Ohio St.3d 33, 35, 487 N.E.2d 560.

If the evidence in question is merely being used to impeach the victim’s

credibility, it is not of probative value as to the alleged rape itself and should

not be admitted. Id.

       {¶ 27} Here, it is apparent that Szorady wanted to question E.S. about

other sexual partners merely in an attempt to impeach her credibility: he

argues that if she were untruthful that he was the father of the baby, her

other testimony about him was also likely not true.
      {¶ 28} Evidence of sexual activity offered merely to impeach the

credibility of the witness is not material to a fact at issue in the case and

must be excluded.     State v. Ferguson (1983), 5 Ohio St.3d 160, 164, 450

N.E.2d 265; State v. Gardner (1979), 59 Ohio St.2d 14, 18-19, 391 N.E.2d 337.

 Accordingly, the trial court did not err in excluding evidence of E.S.’s prior

sexual history.

      {¶ 29} Appellant’s second assignment of error is overruled.

V.    Rape Convictions

      {¶ 30} In his third assignment of error, Szorady contends that the

evidence was insufficient to support his convictions for rape.

      {¶ 31} The test for sufficiency requires a determination of whether the

prosecution met its burden of production at trial. State v. Bowden, Cuyahoga

App. No. 92266, 2009-Ohio-3598, ¶12. 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.        State v. Thompkins, 78

Ohio St.3d 380, 386, 678 N.E.2d 541, 1997-Ohio-52. 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. Jenks (1991), 61

Ohio St.3d 259, 574 N.E.2d 942, paragraph two of the syllabus.
      {¶ 32} Szorady was convicted of rape in violation of R.C. 2907.02(A)(2),

which provides that “[n]o person shall engage in sexual conduct with another

when the offender purposely compels the other person to submit by force or

threat of force.” He contends that the evidence was insufficient to support

his rape convictions because the State failed to prove the element of force.

      {¶ 33} Force means “any violence, compulsion, or constraint physically

exerted by any means upon or against a person or thing.”                       R.C.

2901.01(A)(1).    Force or the threat of force “can be inferred from the

circumstances surrounding sexual conduct.” State v. Schaim (1992), 65 Ohio

St.3d 51, 600 N.E.2d 661, paragraph one of the syllabus. To make a finding

of force under R.C. 2907.02, “some amount of force must be proven beyond

that force inherent in the crime itself.” State v. Dye (1998), 82 Ohio St.3d

323, 327, 695 N.E.2d 763.

      {¶ 34} In the case of a child victim, a person in a position of authority

over the victim can be convicted of rape with the force specification without

evidence of express threat of harm or evidence of significant physical

restraint.   Id. at syllabus.   Thus, this court has recognized that “‘if the

alleged victim is a minor child, evidence of subtle and/or psychological force

may be sufficient to support conviction of an accused who is an authority

figure to that child, even in the absence of any express threat of harm or

significant physical restraint.’” State v. Milam, Cuyahoga App. No. 86268,
2006-Ohio-4742, ¶12, quoting State v. Musgrave, (Nov. 25, 1998), Summit

App. No. 18260. “Force need not be overt and physically brutal, but can be

subtle and psychological. As long as it can be shown that the rape victim’s

will was overcome by fear and duress, the forcible element of rape can be

established.” State v. Fowler (1985), 27 Ohio App.3d 149, 154, 500 N.E.2d

390.

       {¶ 35} Szorady was a person in authority over E.S.; she testified that she

considered him to be her stepdad and called him “Dad.” Hence, because E.S.

was a minor when the events occurred, the question is whether Szorady

overcame her will by fear or duress. Szorady argues that E.S. testified that

she did not try to resist his advances because she did not want to be judged

negatively by her family. He contends that a person who was engaged in

consensual sex would have testified similarly and, hence, there was

insufficient evidence of force to support the rape convictions.

       {¶ 36} But E.S. specifically testified that she was afraid that Szorady

would get violent if she refused his advances. She also testified that Szorady

had physically assaulted her, her brother, and her mother when he got angry

at them. This testimony was sufficient to establish the force element of rape

and, therefore, Szorady’s argument is without merit.

       {¶ 37} Szorady next argues that even if his rape convictions were

supported by sufficient evidence, they were against the manifest weight of the
evidence. He contends that the trial court’s finding of force was unreasonable

in light of the “conflicting” and “ambiguous” evidence regarding whether E.S.

failed to resist his advances because she wanted to avoid embarrassment if

her actions with him were revealed, or whether her will was overcome by fear

or duress.

      {¶ 38} A challenge to the manifest weight of the evidence attacks the

credibility of the evidence presented.    Thompkins at 387. In determining

whether a conviction is against the manifest weight of the evidence, a

reviewing court reviews “the entire record, weighs the evidence and all

reasonable inferences, considers the credibility of witnesses and determines

whether in resolving conflicts in the evidence, the jury clearly lost its way and

created such a manifest mniscarriage of justice that the conviction must be

reversed and a new trial ordered.” Id., citing State v. Martin (1983), 20 Ohio

App.3d 172, 175, 485 N.E.2d 717. Reversing a conviction as being against

the manifest weight of the evidence and ordering a new trial is reserved for

only those “exceptional cases in which the evidence weighs heavily against

the conviction.” Id.

      {¶ 39} This is not that exceptional case.     The evidence was neither

conflicting nor ambiguous; it was clear that E.S. was afraid of Szorady and

feared that he would become violent if she refused his advances. Although

she admitted that she did not want to be embarrassed by a revelation of what
had happened, she also testified that she submitted to Szorady’s advances

because she was fearful of what he would do to her, her brother, and

grandmother if she resisted him. E.S.’s brother and mother likewise testified

that Szorady would become violent when he was angry. Our review of the

record demonstrates that E.S.’s will to resist was overcome by her fear of

Szorady; hence, the rape convictions are not against the manifest weight of

the evidence.

      {¶ 40} Appellant’s third assignment of error is therefore overruled.

V.    Consecutive Sentences and Findings of Fact

      {¶ 41} In his fourth assignment of error, Szorady contends that the trial

court erred in imposing consecutive sentences without making the findings

required by R.C. 2929.14(E)(4).     He argues that State v. Foster, 109 Ohio

St.3d 1, 845 N.E.2d 470, 2006-Ohio-856, which severed the judicial

fact-finding requirement from Ohio’s sentencing statutes, is no longer valid in

light of Oregon v. Ice (2009), 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517.

      {¶ 42} The Ohio Supreme court rejected this argument in State v.

Hodge, 128 Ohio St.3d 1, 941 N.E.2d 768, 2010-Ohio-6320, wherein it

determined that Ice does not revive the severed sentencing statutes and that

“[t]rial court judges are not obligated to engage in judicial fact-finding prior to

imposing consecutive sentences unless the General Assembly enacts new

legislation requiring that findings be made.” There is no current statutory
requirement that trial judges make findings in support of consecutive

sentences; hence, Szorady has shown no error.

      {¶ 43} Appellant’s fourth assignment of error is overruled.

      Affirmed.

      It is ordered that appellee recover from 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. The defendant’s

conviction having been affirmed, any bail pending appeal is terminated.

Case remanded to the trial court for execution of sentence.

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

Rule 27 of the Rules of Appellate Procedure.



KATHLEEN ANN KEOUGH, JUDGE

PATRICIA A. BLACKMON, P.J., and
LARRY A. JONES, J., CONCUR
