[Cite as State v. Walker, 2011-Ohio-4239.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                         No. 95974




                                        STATE OF OHIO

                                                PLAINTIFF-APPELLEE

                                                   vs.

                                   DARREN L. WALKER

                                                DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-536762

        BEFORE:             Sweeney, P.J., Jones, J., and S. Gallagher, J.
                                     2


       RELEASED AND JOURNALIZED:        August 25, 2011

ATTORNEY FOR APPELLANT

Britta M. Barthol, Esq.
P.O. Box 218
Northfield, Ohio 44067

ATTORNEYS FOR APPELLEE

William D. Mason, Esq.
Cuyahoga County Prosecutor
By: Mark J. Mahoney, Esq.
Asst. County Prosecutor
Eighth Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




JAMES J. SWEENEY, P.J.:

       {¶ 1} Defendant-appellant, Darren Walker, appeals following his

convictions for     two counts of rape, two counts of kidnapping, and gross

sexual imposition. Defendant asserts that his conviction of rape was based

on insufficient evidence and that all of his convictions were against the

manifest weight of the evidence.     Defendant further asserts that he was

denied the effective assistance of counsel and maintains that the court erred
                                       3
by finding that certain convictions were not subject to merger.            For the

reasons that follow, we affirm.

      {¶ 2} At trial, the state presented multiple witnesses whose testimony

is summarized below.

      {¶ 3} In March and April of 2010, defendant was residing with Dorothy

Hardges    (“Hardges”)   and      several    of   her   relatives,   including   her

granddaughter “X.”1 Defendant had been married to Hardges’s niece and,

although they have since divorced, he maintained a close familial relationship

with Hardges. By all accounts, defendant helped Hardges with household

chores and maintenance. He cooked and cleaned and at times helped with the

children who were residing in the home. Hardges had legal custody of X.

Defendant has known all of Hardges’s children for many years and has

known X since she was born. At the time of trial, X was eleven years old.

      {¶ 4} The testimony indicates that X has special education needs.

Hardges said X is in the fifth grade but is functioning at a second grade level

educationally.

      {¶ 5} Hardges is diabetic and requires dialysis three times a week. On

those days, Hardges’s neighbor, Ms. Elliot, helped X get on the bus for school.


      1
        Consistent with this Court’s policy, victims of sexual offenses are not
identified.
                                    4
      {¶ 6} Whenever defendant stayed with Hardges, he would use X’s room

and X would sleep in the living room with Hardges. In March of 2010, X told

Ms. Elliot about an incident involving defendant. Ms. Elliot told her to tell

her grandmother and her mother. X did not immediately do so. In April of

2010, X approached Deasia, her uncle’s fiancée, and made allegations about

defendant, which Deasia then reported to Hardges.

      {¶ 7} Hardges asked defendant if he had been “messing with” X, which

he denied. Hardges testified that she had noticed X was being mean towards

defendant but never asked her why. Deasia told Hardges that she did not

like defendant and the way he acted. Hardges indicated that defendant did

not like when Deasia talked back to Hardges and was disrespectful and that

defendant would speak to Deasia about it.

      {¶ 8} Hardges continued to question X and had other adults question

her in an effort to determine if X was being truthful. Hardges asked her son

Brandon to speak with X. Then Hardges learned that X had previously told

Ms. Elliot the same thing.    Hardges told X’s mother, Carmen, about the

accusation and a family meeting took place to confront defendant before the

police were contacted.   Hardges was present at the meeting along with

Mark, Deasia, their baby, Deasia’s cousin, the cousin’s brother, Brandon and
                                       5
his father David, defendant, Carmen, and X.           2     Carmen immediately

approached defendant and hit him. At that point, another individual named

Marvin arrived followed by Ms. Elliot.       X stood in front of everyone and

repeated her accusations against defendant. Carmen hit defendant again and

others took defendant in the back hallway.            Hardges heard a lot of

commotion and told David to get defendant while she called the police.

      {¶ 9} Defendant continued to deny the allegations but when Hardges

asked, “Was you high? Did you do this?” Defendant responded, “I don’t know

Auntie, if I did. If I did, I don’t recall.” The police arrived after the fighting

had ended and defendant was seated in a chair.            One officer took X into

another room and the other took defendant out of the house. The police read

him his rights and arrested him.

      {¶ 10} X spoke to an officer later and Hardges was interviewed by a

social worker. Hardges took X to the hospital and put her in counseling with

the Rape Crisis Center.

      {¶ 11} Prior to X’s testimony, the court inquired, “Is there any issue as

to [X’s] ability to testify?”   The court asked defense counsel whether he

challenged it or had any voir dire beforehand. Defense counsel responded, “I



      Other testimony indicates that additional people were present at the family
      2

meeting.
                                     6
have not challenged it. I expect from what I have heard through all of the

pretrial proceedings, as well as even testimony in this case, that she has

repeated her story often and that she will be capable of testifying in this

Court. Of course, if circumstances change before our eyes, it’s a different

story.”

      {¶ 12} X testified as follows: She is eleven years old and lives in an

apartment with her grandmother. She is in fifth grade and rides the bus to

school. Ms. Elliot would help her get on       the bus when Hardges was at

dialysis. Defendant would also take care of X sometimes. Defendant would

help Hardges around the house and cooked.

      {¶ 13} X said she was in her room with her cousin when defendant came

in and told her to lay on the bed.         When she laid down on her back,

defendant pulled her pants down to her knees and licked her “private part”

with his tongue. Defendant told her not to tell anyone. Then he “put his

private part in [her] butt.” She elaborated, that “there was a hole by my

private part. He put it in there.” She left with her cousin and did not tell

anyone about the incident that day. This happened in March of 2010. She

remembers the day because prior to the incident someone had beaten her up.

      {¶ 14} X said that later in April, she was in the kitchen drinking juice

when defendant started licking her. He told her to come in her room and he
                                      7
closed the door. They were alone and defendant pulled her shirt up. She was

on the bed and defendant was on top of her and he sucked her breasts. He

told her not to tell anyone. Originally X testified that she went into the living

room and told her grandmother what happened that day. Then she testified

that she told Ms. Elliot first, who told her to tell Hardges and her mother.

She did not tell her grandmother right away. She told Deasia and then she

told Hardges.    It was Deasia’s birthday, April 7th.      She told Deasia he

touched her private part and he was by her butt. X said defendant rubbed

her butt the same day he licked her private part. X testified that there was

one occasion when defendant touched her butt, another when he asked her to

get on the bed, and another occasion when he sucked her breasts.             She

remembers the family meeting when the police came to the house. She spoke

with police about what happened and saw a doctor. X also spoke with a

social worker.

      {¶ 15} During cross-examination, X testified that defendant stayed in

her room while she would sleep on the couch. She has known defendant her

whole life. X said the day she got in a fight, defendant only touched her butt.

 Then she said that sometimes she needs people to help her remember things.

During re-direct X confirmed that she remembered defendant putting his

tongue on her private and that he put his penis inside of her.
                                      8
      {¶ 16} Michael Ryan, a patrol officer with CPD, responded to the

reported rape on April 20, 2010 with his partner.      They arrived at the

apartment and heard yelling. Ryan saw approximately seven to eight people

inside the living room screaming at defendant. The victim, X, was taken to

another room, and Ryan called for backup.        Defendant was handcuffed,

taken to the police car, and read his rights. Ryan asked defendant what

happened and defendant said, “I don’t know anything.             I don’t know

anything. I don’t know what I do when I get high.”

      {¶ 17} Family members were very upset, very angry, threatening

defendant and the police.    Ryan contacted a sergeant and took defendant

downtown and booked him.         Ryan wrote the police report.    He recalled

seeing defendant at Charity Hospital later. He had not noticed any injuries

when he booked defendant but defendant had injuries at the hospital. Ryan

did not record any injuries on his report.

      {¶ 18} Ms. Elliot, Brandon Hardges, Mark Hardges, and Deasia Pridgett

also testified. They confirmed their presence at the family meeting and the

events leading up to it.     They all confirmed that defendant denied the

accusations. Although Ms. Elliot did not notice any change in X’s demeanor,

other family members said they noticed her acting differently towards

defendant.
                                          9
      {¶ 19} Tanya George-Olds is employed by Cuyahoga County Department

of Children and Family Services and assigned to the sex abuse intake

investigation unit as a social worker/investigator.      The agency received a

referral for X on April 20, 2010. She met with the family in May 2010. She

interviewed X about the allegations in July of 2010. George-Olds testified

that X does have cognitive limitations in the area of processing but she was

able to answer and explain what happened to her. The social worker also

interviewed Deasia 3 and Hardges.          She compared the accounts received

during her investigation with the accounts obtained by the detective.

      {¶ 20} A pediatric nurse practitioner from University Hospital also

testified. X is her patient and she examined her on April 30, 2010. State’s

Exhibit 1 is copy of the medical records. X reported that defendant touched

her breasts and her vaginal area approximately one month prior to the

examination. From the examination, the nurse could not determine whether a

sexual assault had occurred.

      {¶ 21} Defendant testified that he married Hardges’s niece when he was

eighteen years old.      They have since divorced but he maintained a close

relationship with Hardges. Defendant stated he has problems with drugs.


      3
          Deasia   did     not   recall    speaking   with   a   social   worker.
                                     10
He said he helped Hardges raise her children.            Defendant described

Hardges’s residence as his second home.       He would do home repairs for

Hardges and help maintain the home.         Defendant testified that he would

sometimes get an attitude with the others because no one else would help

Hardges with the housework and repairs. But, he had a good relationship

with all the adults in the house and was always welcome there. When he

was there, he would be given X’s room to sleep in and X would stay in the

living room. Defendant said that X keeps her clothing and belongings in the

front of the apartment near where Hardges sleeps.

     {¶ 22} Defendant has known X since she was born.       X would give him

an attitude and there was friction between them.        Defendant denied X’s

allegations and said the things she testified to did not happen. Defendant

denied ever touching X improperly.

     {¶ 23} The trial court denied defendant’s motions for acquittal.

     {¶ 24} Prior to rendering its decision, the court noted that it had to

decide the case based on the testimony of the witness and found “a few

aspects of that testimony to be confusing and disturbing.” The court

ultimately determined that X was credible and found defendant guilty.

     {¶ 25} On October 8, 2010, the court imposed sentence as follows: the

court determined that the victim was not released from a safe place
                                    11
unharmed.     Defendant’s convictions for count one was merged with count

two and his conviction on count three was merged with count four; the court

determined that defendant’s conviction under count five was not an allied

offense of similar import and was, therefore, not subject to merger. The state

elected to pursue sentencing on counts two and four. Defendant was advised

of his Tier III sexual offender classification and requirements.    The court

imposed concurrent prison terms of ten years to life on counts two and four to

be served concurrently with a three year prison term on count five.

Defendant was advised of postrelease control and pursued the instant appeal.

      {¶ 26} “Assignment of Error I: The evidence was insufficient as a matter

of law to support a finding beyond a reasonable doubt that Appellant was

guilty of rape.”

      {¶ 27} An appellate court’s function when reviewing the sufficiency of

the evidence to support a criminal conviction is to examine the evidence

admitted at trial to determine whether such evidence, if believed, would

convince the average mind of the defendant’s guilt beyond a reasonable doubt.

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.
                                     12
      {¶ 28} Defendant   challenges his convictions for rape under this

assignment of error. R.C. 2907.02(A)(1)(b) provides:

      {¶ 29} “(A)(1) No person shall engage in sexual conduct with another

who is not the spouse of the offender or who is the spouse of the offender but

is living separate and apart from the offender, when any of the following

applies:

      {¶ 30} “* * *

      {¶ 31} “(b) The other person is less than thirteen years of age, whether

or not the offender knows the age of the other person.”

      {¶ 32} “Sexual conduct” is defined 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.” R.C. 2907.01(A).

      {¶ 33} Defendant maintains that the evidence was insufficient to

establish penetration on any date. However, penetration is not required to

support a conviction of rape involving cunnilingus.       See State v. Bailey

(1992), 78 Ohio App.3d 394, 395, 604 N.E.2d 1366 (“the law requires no

further activity to constitute cunnilingus beyond the placing of one’s mouth
                                     13

on the female’s vagina.”), followed by State v. Dunlap (Jan. 16, 1997),

Cuyahoga App. No. 70427.      X testified that defendant licked her private

part. X further testified that defendant also put his penis in a hole by her

butt that she indicated was in her “private part.” The record reflects that X

pointed to that area on her body during her testimony at the bench trial.

This testimony was sufficient to support two counts of rape.          The first

assignment of error is overruled.

      {¶ 34} “Assignment   of Error II: The Appellant’s convictions for

kidnapping, rape and gross sexual imposition were against the manifest

weight of the evidence.”

      {¶ 35} To warrant reversal of a verdict under a manifest weight of the

evidence claim, this Court must review the entire record, weigh the evidence

and all reasonable inferences, consider the credibility of witnesses, and

determine whether, in resolving conflicts in evidence, the jury clearly lost its

way and created such a manifest miscarriage of justice that the judgment

must be reversed and a new trial ordered. State v. Thompkins, 78 Ohio St.3d

380, 387, 1997-Ohio-52, 678 N.E.2d 541.

      {¶ 36} Reversal of defendant’s convictions is not warranted under this

standard.
                                     14
      {¶ 37} Defendant   primarily   contends   that   X’s   testimony    was

questionable and lacking in credibility and reliability due to her age and

developmental disabilities.   At the time of trial, X was 11 years old and

reportedly functioning at a second grade level. Nothwithstanding, the social

worker testified that X was able to remember and explain what happened to

her. Indeed, X’s testimony was consistent with other witnesses on points of

no dispute such as the fact of her grandmother’s dialysis, that Ms. Elliot

would help her get on the bus, and with whom she resided. Further, while X

may have educational delays, this does not equate to an inability to recollect

or testify truthfully. In addition, the record contains statements made by

defendant where he indicated that he could not remember what he did when

he was high. He said to Hardges, “if I did, I don’t recall.” When the police

asked him what happened, defendant said, “I don’t know anything. I don’t

know anything. I don’t know what I do when I get high.”           Even though

defendant denied the allegations, by making these statements, defendant

acknowledged a possibility that the events could have happened.

      {¶ 38} The record and testimony also reflect that Hardges did not

immediately accept X’s account, but instead made efforts to corroborate it

before contacting the police. Likewise, the social worker interviewed X but
                                      15
did not ask leading questions.     She then consulted with the investigating

officer and compared the statements.

      {¶ 39} This was a bench trial where the defense counsel effectively

established that X had repeated her story many times.               The defense

questioned the veracity of X’s account and suggested that her testimony was

scripted and rehearsed.     X’s testimony, like that of other child victims, is

somewhat confusing. However, she did repeatedly testify that defendant had

licked her private part and put his private part in a hole near her butt. She

recalled him touching her buttocks and also sucking her breasts.               Her

testimony was unclear as to when she reported the incident to others and the

exact dates it had occurred. The trial court noted that X’s testimony was

confusing but ultimately resolved the conflicts in favor of her credibility.

      {¶ 40} Considering the record as a whole, we cannot say that the trial

court clearly lost its way by finding defendant guilty of the charges.

Accordingly, his convictions were not against the manifest weight of the

evidence and this assignment of error is overruled

      {¶ 41} “Appellant was denied his right to effective assistance of counsel

guaranteed by Article I, Section 10 of the Ohio Constitution and the Sixth and

Fourteenth Amendment to the United States Constitution when trial counsel
                                      16
failed to request a competency hearing of the minor witness’s testimony prior

to the commencement of trial.”

      {¶ 42} “To substantiate a claim of ineffective assistance of counsel, a

defendant must demonstrate that (1) the performance of defense counsel was

seriously flawed and deficient, and (2) the result of defendant’s trial or legal

proceeding would have been different had defense counsel provided proper

representation.” Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674; State v. Brooks (1986), 25 Ohio St.3d 144, 495 N.E.2d

407. In State v. Bradley, the Ohio Supreme Court truncated this standard,

holding that reviewing courts need not examine counsel’s performance if the

defendant fails to prove the second prong of prejudicial effect. State v. Bradley

(1989), 42 Ohio St.3d 136, 538 N.E.2d 373. “The object of an ineffectiveness

claim is not to grade counsel's performance.” Id. at 143, 538 N.E.2d 373.

      {¶ 43} Defendant asserts his counsel was ineffective for failing to

request a hearing as to X’s competency to testify in this case. Evid.R. 601(A)

provides:

      {¶ 44} “Every person is competent to be a witness except:

      {¶ 45} “(A) Those of unsound mind, and children under ten years of age,

who appear incapable of receiving just impressions of the facts and

transactions respecting which they are examined, or of relating them truly.”
                                     17
      {¶ 46} The record reflects that the trial judge specifically inquired as to

whether a voir dire was needed of this witness. The defense indicated that

there was no need to conduct a competency hearing based on what was

learned at the pretrial proceedings and X’s testimony.

      {¶ 47} X’s age was not a factor in determining her competency to testify

pursuant to Evid.R. 601 because she was 11 years old.               Accordingly,

defendant focuses on X’s reported developmental delays in alleging that X

was of “unsound mind.”      The only evidence offered on this issue was the

testimony of Hardges and the social worker. Hardges testified that X had an

individualized education plan and that she is in the fifth grade but

functioning at a second grade level in school. The social worker said that X

does have cognitive limitations in the area of processing but she was able to

answer and explain what happened to her.

      {¶ 48} R.C. 1.02(C) states that the term “unsound mind” includes all

forms of mental retardation, however, the testimony in the record does not

clearly call X’s competency into question to the point that the decision not to

pursue a competency hearing constituted ineffective assistance of counsel.

See State v. Miller (1988), 44 Ohio App.3d 42, 44, 541 N.E.2d 105 (mother’s

statement that child was “mildly retarded” is not sufficient to call child’s

competency into question); see, also, State v. Barnett (March 16, 1999),
                                     18

Defiance App. No. 4-98-14.    Similar to the facts at issue in Miller, X became

confused during cross-examination; however we recognize that “this often

happens to [mentally delayed] and non-[mentally delayed] witnesses alike.”

Id. This is especially common when minor victims are involved regardless of

their mental capacity. X was able to recall events and testify about them.

For example, X, like many of the other witnesses, testified that Ms. Elliot

helped her get on the bus when Hardges was scheduled for dialysis. She also

testified consistent with the other evidence that defendant did chores around

the house and helped her grandma. She knew who resided in the home and

was able to testify about incidents that happened to her such as a fight she

had with another girl. She also recalled the family meeting, which had been

described through the testimony of multiple other witnesses.

      {¶ 49} Defendant has not demonstrated that he was prejudiced by

defense counsel’s decision not to pursue a hearing as to X’s competency to

testify.   Defendant has not established a reasonable probability that the

outcome of the trial would have been different had there been a competency

hearing prior to the bench trial. This assignment of error is overruled.

      {¶ 50} “Assignment of Error IV: Appellant’s convictions for rape and

gross sexual imposition are allied offenses of similar import and the

convictions must merge into a single conviction.”
                                     19
      {¶ 51} The Ohio Supreme Court recently established the proper analysis

for determining whether offenses qualify as allied offenses subject to merger

pursuant to R.C. 2941.25. State v. Johnson, 128 Ohio St.3d 153,

2010-Ohio-6314, 942 N.E.2d 1061.

      {¶ 52} “In determining whether offenses are allied offenses of similar

import under R.C. 2941.25(A), the question is whether it is possible to commit

one offense and commit the other with the same conduct, not whether it is

possible to commit one without committing the other. * * * If the offenses

correspond to such a degree that the conduct of the defendant constituting

commission of one offense constitutes commission of the other, then the

offenses are of similar import.

      {¶ 53} “If the multiple offenses can be committed by the same conduct,

then the court must determine whether the offenses were committed by the

same conduct, i.e., ‘a single act, committed with a single state of mind.’

Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, at ¶ 50

(Lanzinger, J., dissenting).

      {¶ 54} “If the answer to both questions is yes, then the offenses are

allied offenses of similar import and will be merged.

      {¶ 55} “Conversely, if the court determines that the commission of one

offense will never result in the commission of the other, or if the offenses are
                                      20
committed separately, or if the defendant has separate animus for each

offense, then, according to R .C. 2941.25(B), the offenses will not merge.” Id.

at ¶ 48–51, 895 N.E.2d 149.

      {¶ 56} Defendant alleges his convictions for rape on or about March 14

to March 15, 2010 and gross sexual imposition were allied offenses pursuant

to R.C. 2941.25.   Defendant alleges they arose out of the same course of

conduct. The state contends the acts were committed on different dates and

were not allied offenses of similar import. X testified that defendant sucked

her breasts and touched her buttocks on a different day than when he

vaginally raped her. Accordingly, the gross sexual imposition conviction was

not subject to merger as an allied offense. See State v. Williams, Cuyahoga

App. No. 94616, 2011-Ohio-925, ¶60. This assignment of error is overruled.

      Judgment affirmed.

      It is ordered that appellee recover of appellant its 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.
                                    21
     A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.




JAMES J. SWEENEY, PRESIDING JUDGE

LARRY A. JONES, J., and
SEAN C. GALLAGHER, J., CONCUR
