[Cite as State v. Gilliam, 2012-Ohio-5034.]



                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO



STATE OF OHIO,                                :        APPEAL NO. C-110587
                                                       TRIAL NO. B-1100323
          Plaintiff-Appellee,                 :

        vs.                                   :

KENYA GILLIAM,                                :            O P I N I O N.

          Defendant-Appellant.                :




Criminal Appeal From: Hamilton County Common Pleas Court

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
                           Remanded

Date of Judgment Entry on Appeal: October 31, 2012




Joseph T. Deters, Hamilton County Prosecuting Attorney, and James Michael
Keeling, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Scott A. Rubenstein, for Defendant-Appellant.




Please note: This case has been removed from the accelerated calendar.
                    OHIO FIRST DISTRICT COURT OF APPEALS


FISCHER, Judge.


       {¶1}   Defendant-appellant Kenya Gilliam was convicted after a bench trial of

six counts of rape of a person less than 13 years of age under R.C. 2907.02(A)(1)(b),

for having sexual contact over a period of six years with her girlfriend’s son. The trial

court imposed consecutive sentences, and imposed life without the possibility of

parole on two of the offenses. Gilliam now appeals from her convictions.

       {¶2}   In 2005, Gilliam and her girlfriend, T.B., began living together with

T.B.’s children in an apartment on Lockhurst Lane, later moving to an apartment on

Quebec Avenue in January 2007. The couple eventually ended their relationship in

August 2008, and Gilliam moved out of the apartment.            Even though Gilliam’s

relationship with T.B. had ended, she continued to babysit T.B.’s children on

occasion from June 2009 until January 2010, while T.B. attended classes.

       {¶3}   In 2011, T.B.’s then-12-year-old son, S.E., was adjudicated delinquent

by the Hamilton County Juvenile Court for committing a sexual act, and was placed

in Hillcrest Training School for treatment. A treatment administrator at Hillcrest,

Joe Youngblood, asked S.E. about S.E.’s sexual history as part of his treatment, at

which time S.E. disclosed to Youngblood that he had had oral sex and intercourse

with Gilliam, which had begun in 2005 when S.E. had been just seven years old.

       {¶4}   After Youngblood reported the allegations to county officials,

Cincinnati police officers interviewed Gilliam. At first Gilliam repeatedly denied any

contact with S.E., but she eventually confessed to having had oral sex and intercourse

with S.E.—although she denied that it had occurred as many times as that alleged by

S.E. Gilliam was indicted for six counts of rape of a person less than 13 years of age

under R.C. 2907.02(A)(1)(b). The matter proceeded to a bench trial.

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                    OHIO FIRST DISTRICT COURT OF APPEALS



       {¶5}   After hearing the testimony of the prosecution’s witnesses—T.B., S.E.,

Youngblood, and the police officer who had interviewed Gilliam—as well as the

testimony of Gilliam and Gilliam’s close friend for the defense, the trial court found

Gilliam guilty of all six counts of rape. The trial court sentenced Gilliam to life with

the possibility of parole on Counts 1 and 2; life without the possibility of parole on

Counts 3 and 4; and ten years to life without parole on Counts 5 and 6. The trial

court imposed the sentences consecutively. This appeal ensued.

                     Motion to Suppress Gilliam’s Confession

       {¶6}   We address Gilliam’s second assignment of error first, in which she

argues that the trial court erred in denying her motion to suppress the statement she

made to police officers, confessing to oral sex and intercourse with S.E. Appellate

review of a ruling on a motion to suppress a confession presents a mixed question of

law and fact. State v. Gray, 1st Dist. No. C-081257, 2009-Ohio-5844, ¶ 19, citing

State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. This

court will accept a trial court’s findings of fact as true if they are supported by

competent, credible evidence; however, we apply a de novo standard of review in

determining whether the facts satisfy the applicable legal standard. Gray at ¶ 19,

citing State v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982) and Burnside at ¶ 8.

       {¶7}   In order for a defendant’s pretrial statement made during a custodial

interrogation to be admitted in evidence, the prosecution has the burden of showing

that the defendant voluntarily waived his or her Miranda rights. State v. Edwards,

49 Ohio St.2d 31, 38, 358 N.E.2d 1051 (1976), citing Miranda v. Arizona, 384 U.S.

436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).




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       {¶8}   The same test is applied in determining whether a Miranda waiver is

voluntary as is applied in determining whether a pretrial confession is voluntary:

whether such action was voluntary under the totality of the circumstances. State v.

Treesh, 90 Ohio St.3d 460, 472, 739 N.E.2d 749 (2001).            A totality of the

circumstances includes “ ‘the age, mentality, and prior criminal experience of the

accused; the length, intensity, and frequency of interrogation; the existence of

physical deprivation or mistreatment; and the existence of threat or inducement.’ ”

State v. Mason, 82 Ohio St.3d 144, 154, 694 N.E.2d 932 (1998), quoting State v.

Edwards, 49 Ohio St.2d 31, 358 N.E.2d 1051 (1976), paragraph two of the syllabus.

The totality-of-the-circumstances test only applies in determining whether a

confession is voluntary if the court first determines that the interrogators used

inherently coercive tactics in obtaining the confession. Treesh at 472. Examples of

inherently coercive tactics include threats, physical abuse, or deprivation of food,

medical treatment, or sleep. Id.

       {¶9}   Gilliam argues that the police officers’ interview tactics amounted to

mental abuse.    She argues she was “badgered” by the police officers, that they

exposed painful memories of her own sexual abuse, and that she was denied a break

to smoke a cigarette.     She also argues that she was emotionally vulnerable,

uneducated, and had never been interviewed by police officers before. Gilliam’s

argument, however, is belied by reviewing her recorded interview. Although the

officers were persistent in questioning Gilliam, they did not coerce her into

confessing.   The record shows that Gilliam comprehended the gravity of the

situation, shown by her repeated reluctance to tell the officers that she had had

sexual contact with S.E., and the record does not indicate that the officers took

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                     OHIO FIRST DISTRICT COURT OF APPEALS



advantage of Gilliam’s education level or inexperience with the criminal justice

system. The officers allowed Gilliam to take a smoke break toward the end of the

interview, they did not deprive her of any necessities, and although Gilliam’s

memories of her own sexual abuse were discussed, she initiated the discussion of

that topic. Therefore, because the officers did not use inherently coercive tactics in

obtaining Gilliam’s confession, the trial court did not err in denying Gilliam’s motion

to suppress.

       {¶10} We overrule Gilliam’s second assignment of error.

                    Reference to Victim’s Polygraph Examination

       {¶11} In her first assignment of error, Gilliam alleges that the trial court

erred in basing its verdict on inadmissible evidence. In particular, Gilliam argues

that the trial court impermissibly questioned Youngblood regarding a polygraph

examination given to S.E., as well as polygraph examinations of other juveniles at

Hillcrest.     During the redirect examination of Youngblood by the prosecutor,

Youngblood indicated that all of the juveniles are given a polygraph examination as

part of the sexual-treatment program at Hillcrest, which is then used to help identify

any other potential victims.

       {¶12} The trial court then engaged Youngblood as follows:

       Q. You’ve had like over or around a hundred cases. Have you ever had

       a kid say, ‘so-and-so molested me,’ and have them take a polygraph

       and they’re lying?

       A. Me personally? I have not had that happen.

The prosecutor then resumed redirect and asked Youngblood whether he had given

S.E. a polygraph as well, to which Youngblood responded affirmatively.

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                    OHIO FIRST DISTRICT COURT OF APPEALS



       {¶13} The Ohio Supreme Court has determined that the results of a

polygraph examination can only be admitted at trial if the parties stipulate in writing

to its admissibility, and if the trial court, in its discretion, is satisfied that the

polygraph examiner is qualified and that the test was conducted properly. State v.

Souel, 53 Ohio St.2d 123, 132, 372 N.E.2d 1318 (1978); State v. Knight, 140 Ohio

App.3d 797, 807; 749 N.E.2d 761 (1st Dist.2000). Not only are polygraph results

inadmissible absent satisfying certain conditions, but the refusal or offer to undergo

a polygraph test is also inadmissible. State v. Hegel, 9 Ohio App.2d 12, 222 N.E.2d

666 (2d Dist.1964); State v. Dillon, 5th Dist. No. 2008-CA-37, 2009-Ohio-3134, ¶

110.

       {¶14} In State v. Harris, 1st Dist. No. C-830927, 1984 Ohio App. LEXIS

11030 (Oct. 3, 1984), the mother of a child victim testified at the defendant’s jury

trial that her daughter had gone to the police station to take a polygraph examination

and that charges then had been brought against the defendant. Id. at *3. Even

though the trial court sustained defense counsel’s objection and issued a curative

instruction to the jury, the trial court refused to grant a mistrial. This court reversed

the defendant’s rape conviction, determining that the case turned solely on witness

credibility and that “[t]he clear implication of [the mother’s testimony was] that the

results of the polygraph test indicated that [the victim] was telling the truth about

the crimes with which appellant was charged.” Id. at *7.

       {¶15} The testimony elicited from Youngblood by the trial court and

prosecutor regarding the polygraph examinations was inadmissible under Souel and

its progeny, and the trial court erred in admitting the testimony. See Souel, 53 Ohio

St.2d at 132, 372 N.E.2d 1318. The reasonable inference drawn from Youngblood’s

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                    OHIO FIRST DISTRICT COURT OF APPEALS



testimony regarding the polygraph examinations at Hillcrest, including S.E.’s, was

that S.E. had taken a polygraph examination regarding his sexual history, including

the encounters with Gilliam, and that S.E. had responded truthfully. This is precisely

the type of inference that we deemed impermissible in Harris.

        {¶16} Although the trial court erred in admitting Youngblood’s testimony,

Gilliam did not object to the admission of this testimony at trial, and, therefore, we

review the record for plain error. State v. Jordan, 1st Dist. No. C-110833, 2012-

Ohio-3793, ¶ 13; Crim.R. 52(B). Plain error occurs when, but for the allegedly

inadmissible evidence, the outcome of the trial would have been different. Jordan at

¶ 13, citing State v. Lukacs, 188 Ohio App.3d 597, 2010-Ohio-2364, 936 N.E.2d 506,

¶ 34 (1st Dist.).

        {¶17} Unlike Harris, Gilliam’s trial did not turn solely on the credibility of

the victim, S.E. A police officer testified that Gilliam had confessed to having had

oral sex and intercourse with S.E., and that confession had been recorded. Gilliam

had even given a detailed account in her statement to officers regarding oral sex with

then-seven-year-old S.E., which had aligned closely with S.E.’s account. Gilliam

testified at trial that she had been pressured into giving her statement, but her

testimony is contradicted by her recorded confession. Moreover, S.E. testified with

specificity as to the circumstances surrounding the rapes. Therefore, we cannot say

that, but for Youngblood’s inadmissible testimony regarding the polygraph, the

outcome of the trial would have been different.

        {¶18} We overrule Gilliam’s first assignment of error.

                      Sufficiency and Weight of the Evidence



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶19} We address Gilliam’s third and fourth assignments of error together.

In her third assignment of error, she argues that her convictions were against the

manifest weight of the evidence. In her fourth assignment of error, she argues that

her convictions were not supported by sufficient evidence. To reverse a conviction

for insufficient evidence, we must determine, after viewing the evidence in the light

most favorable to the state, that no rational trier of fact could have found the

essential elements of the crime proven beyond a reasonable doubt. State v. Waddy,

63 Ohio St.3d 424, 430, 588 N.E.2d 819 (1992). By contrast, to reverse a conviction

on manifest-weight grounds, this court must weigh the evidence and the credibility

of the witnesses to determine if the trier of fact clearly lost its way and created a

manifest miscarriage of justice. State v. Thompkins, 78 Ohio St.3d 380, 387, 678

N.E.2d 541 (1997).

       {¶20} The prosecutor stated in opening statement that Counts 2 and 3 of the

indictment “could be repetitive charges” depending on the testimony of S.E., but that

the state indicted Gilliam in that manner “to cover the law on rape at the time it

changed.” Count 3 of the indictment alleged that Gilliam had raped S.E. during a

time period from January 2, 2007, to January 13, 2007, approximately. At the close

of the presentation of evidence to the trial court, the prosecutor stated in closing

argument that Count 3 was the “duplicative count[,]” but that he believed “[t]he

other counts * * * [were] prove[n] beyond a reasonable doubt * * *.” The trial court

nevertheless found Gilliam guilty on Count 3 and sentenced her to life in prison

without the possibility of parole on that count. Our review of the record confirms the

prosecutor’s statement, and, therefore, the evidence was insufficient to support

Gilliam’s conviction on Count 3.        Because Gilliam’s conviction based upon

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                   OHIO FIRST DISTRICT COURT OF APPEALS



insufficient evidence amounts to plain error, we vacate her conviction on Count 3.

See State v. Sims, 169 Ohio App.3d 579, 2006-Ohio-6285, 863 N.E.2d 1110, ¶ 22; see

Crim.R. 52(B).

       {¶21} As to the remaining counts, after viewing the evidence in the light most

favorable to the prosecution, we determine that a rational trier of fact could have

found all the essential elements of rape proven beyond a reasonable doubt. Further,

we cannot determine that the trial court clearly lost its way and created a manifest

miscarriage of justice in finding Gilliam guilty.    Therefore, we sustain Gilliam’s

fourth assignment of error as to Count 3 only.

                                       Sentencing

       {¶22} In Gilliam’s fifth assignment of error, she argues that the trial court

erred in imposing a sentence that was not supported by the record. In reviewing

sentences imposed by a trial court, we must determine first whether the sentences

were contrary to law. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896

N.E.2d 124, ¶ 14. If the sentences were not contrary to law, we must then review the

sentences to determine whether the trial court abused its discretion. Id. at ¶ 17.

Gilliam specifically argues that the trial court erred in sentencing her to consecutive

life terms by failing to consider mitigating circumstances under R.C. 2929.12(C)(4),

such as her abusive past and her lack of a criminal background.

       {¶23} As to Counts 5 and 6, the trial court sentenced Gilliam on each of those

counts to ten years to life in prison without parole. At the time that Gilliam had

committed the rapes in Counts 5 and 6, S.E. had been at least ten years old, and,

therefore, a sentence of life without parole was not permitted. See R.C. 2907.02(B).

Instead, the trial court was required to sentence Gilliam to an indefinite prison term

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                    OHIO FIRST DISTRICT COURT OF APPEALS



consisting of a minimum term of ten years and a maximum term of life in prison.

See R.C. 2971.03(B)(1)(a). Therefore, because Gilliam’s sentences in Counts 5 and 6

were outside the statutory range, those sentences were clearly and convincingly

contrary to law and must be vacated. See State v. Andrew, 1st Dist. No. C-110141,

2012-Ohio-1731, ¶ 8-10.

       {¶24} As to the sentences imposed on Counts 1, 2, and 4, including the

imposition of consecutive sentences, we cannot determine that the sentences were an

abuse of discretion in light of the seriousness of Gilliam’s crimes and the age and

vulnerability of the victim. See Kalish at ¶ 17. We sustain Gilliam’s fifth assignment

of error to the extent that we vacate the sentences imposed on Counts 5 and 6, and

given our disposition of Gilliam’s fourth assignment of error, we also vacate the

sentence imposed on Count 3.

                                         Conclusion

       {¶25} In conclusion, we vacate the conviction and sentence imposed by the

trial court on Count 3 and discharge Gilliam from further prosecution on that count.

We also vacate the sentences imposed by the trial court on Counts 5 and 6, and

remand this cause for resentencing on those counts. We affirm the remainder of the

trial court’s judgment.

                                Affirmed in part, reversed in part, and cause remanded.

HENDON, P.J., and CUNNINGHAM, J., concur.


Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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