[Cite as State v. Michael , 2011-Ohio-2691.]


                                        COURT OF APPEALS
                                   TUSCARAWAS COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                        Hon. Julie A. Edwards, J.
                                                  Hon. Patricia A. Delaney, J.
-vs-
                                                  Case No. 10AP090034
LEVI J. MICHAEL

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Tuscarwas County Court of
                                               Common Pleas, Case No. 2009CR080216


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                        June 2, 2011


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


RYAN STYER                                     JEREMY J. MASTERS
Tuscarawas County Prosecutor                   Office of the Public Defender
AMANDA K. MILLER                               Assistant State Public Defender
Assistant County Prosecutor                    250 East Broad Street, Suite 1400
for Tuscarawas County                          Columbus, Ohio 43215
125 East High Avenue
New Philadelphia, Ohio 44663
Tuscarawas County, Case No. 10AP090034                                                    2

Hoffman, P.J.


       {¶1}   Defendant-appellant Levi J. Michael appeals his conviction and sentence

entered by the Tuscarawas County Court of Common Pleas, on six counts of rape,

following a jury trial. Plaintiff-appellee is the State of Ohio.

                            STATEMENT OF THE CASE AND FACTS

       {¶2}   On October 29, 2009, the Tuscarawas County Grand Jury indicted

Appellant on six counts of rape, all in violation of R.C. 2907.02(A)(1)(b), two counts for

each of his three minor children, C.M., S.M., and L.M. Counts One and Two alleged

Appellant engaged in sexual conduct with C.M. when the boy was under the age of ten,

and under the age of thirteen, respectively. Counts Three and Four alleged Appellant

engaged in sexual conduct with S.M. while she was under the age of ten, and under the

age of thirteen, respectively. Counts Five and Six alleged Appellant engaged in sexual

conduct with L.M. while she was under the age of thirteen. Appellant appeared for

arraignment and entered a plea of not guilty to the Indictment. The State filed a Bill of

Particulars which mirrored the Indictment. Appellant filed a Motion for More Specific Bill

of Particulars, asserting the Indictment and Bill of Particulars were inadequate in light of

the Sixth Circuit’s decision in Valentine v. Konteh (C.A. 6 2005) 395 F3d. 626. Although

the State opposed the motion, it filed an Amended Bill of Particulars.

       {¶3}   The matter proceeded to jury trial on August 10, 2010. Kari Abel, an

investigator with the Tuscarawas County Department of Job and Family Services,

testified the agency received a complaint on August 10, 2009, that one of Appellant’s

children had been sexually abused by a family member. In response, Abel scheduled

interviews with Appellant’s children and other family members.         Abel and Detective
Tuscarawas County, Case No. 10AP090034                                                 3


Kathy Bickford of the Tuscarawas County Sheriff’s Department conducted individual

interviews with the children on August 11, 2009. Based upon information obtained

during the interviews, Abel and Bickford made a referral for S.M. at Akron Children’s

Hospital.     Thereafter, on August 17, 2009, the Tuscarawas County Juvenile Court

granted temporary custody of the children to the agency. The children were placed in

foster care, and had not seen either Appellant or their mother since that time. Although

TCDJFS had a history with the Michael family, none of the children had disclosed any

incidents of sexual abuse prior to August, 2009.

       {¶4}     Detective Kathy Bickford testified she has specialized training in

investigating crimes against children. The day after interviewing the children with Abel

Bickford arrested Appellant. Bickford interviewed Appellant after he was booked into

jail. Appellant initially denied all allegations, but on August 13, 2009, he requested to

speak with Bickford. During the second interview, Appellant made several confessions,

including an admission to raping his two daughters.            Appellant summarized his

confession in a sworn written statement executed at the conclusion of the second

interview. During a subsequent search of Appellant’s home, Bickford found several

bottles of intimate lubricators and a bottle of EZ anal desensitizing spray gel.

       {¶5}     Cathy Beckwith-Laube, a licensed social worker employed by the C.A.R.E.

Center at Akron Children’s Hospital, testified she interviewed S.M. prior to her medical

examination at the C.A.R.E. Center in September, 2009. An audio/video recording of

Laube’s interview of S.M. was played in open court in its entirety. Laube also testified

she interviewed C.M. on October 14, 2009.            The audio/video recordings of those

interviews were also played for the jury in its entirety.
Tuscarawas County, Case No. 10AP090034                                                   4


       {¶6}   Donna Abbott, a certified nurse practitioner with the C.A.R.E. Center of

Akron Children’s Hospital, testified she performed the medical examination and

evaluation of C.M. after he had been interviewed by Laube. Abbott testified C.M.’s

medical examination was normal, which was not surprising based upon physiological

reasons. Abbott explained C.M. had been separated from Appellant for over one month

at the time of his medical examination and Appellant had used lubrication during the

acts of penetration, both significant factors which resulted in the normal medical

examination findings.

       {¶7}   Daryl Steiner, D.O., the medical director at the C.A.R.E. Center, testified

he performed the medical examination of S.M. in September, 2009, following the girl’s

interview with Laube. Dr. Steiner indicated S.M.’s medical examination was normal,

and explained such results were not surprising because the girl had progressed through

nearly the entire pubertal maturation process. Because S.M. was almost completely

mature in her secondary sexual characteristics, the fact there were no signs of residual

tissue injuries was not surprising to Dr. Steiner.

       {¶8}   All three children testified, recounting the sexual abuse Appellant inflicted

upon them.

       {¶9}   After hearing all the evidence and deliberating, the jury found Appellant

guilty of all six counts of the indictment and made affirmative findings on all special

findings. The trial court sentenced Appellant to a term of imprisonment of life without

the possibility of parole on Counts One and Three, twenty-five years to life on Counts

Two and Four, and ten years to life for Counts Five and Six. The trial court ordered the

sentences on the counts relating to each child be served concurrently (i.e., Counts One
Tuscarawas County, Case No. 10AP090034                                               5


and Two which relate to C.M. are to be served concurrently to each other), but

consecutively to the sentences imposed for the counts involving the individual children

(i.e. sentence on counts involving S.M. served consecutive to sentence on counts

involving C.M.).

      {¶10} It is from this conviction and sentence Appellant appeals, raising the

following assignments of error:

      {¶11} “I. THE TRIAL COURT ERRED BY CONVICTING LEVI MICHAEL BASED

UPON MULTIPLE COUNTS OF A SINGLE OFFENSE, DENYING HIM DUE PROCESS

OF LAW AND VIOLATING THE DOUBLE JEOPARDY CLAUSE.                          FIFTH AND

FOURTEENTH AMENDMENTS, UNITED STATES CONSTITUTION; SECTION 10,

ARTICLE I, OHIO CONSTITUTION.

      {¶12} “II. THE TRIAL COURT VIOLATED LEVI MICHAEL’S RIGHTS TO DUE

PROCESS AND A FAIR TRIAL WHEN, IN THE ABSENCE OF SUFFICIENT

EVIDENCE, THE TRIAL COURT CONVICTED MR. MICHAEL OF RAPE. FIFTH AND

FOURTEENTH AMENDMENTS, UNITED STATES CONSTITUTION; SECTION 16,

ARTICLE I, OHIO CONSTITUTION.

      {¶13} “III. THE TRIAL COURT VIOLATED LEVI MICHAEL’S RIGHTS TO DUE

PROCESS AND A FAIR TRIAL WHEN IT ENTERED A JUDGMENT OF CONVICTION

FOR RAPE, WHICH WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

FIFTH AND FOURTEENTH AMENDMENTS, UNITED STATES CONSTITUTION;

SECTION 16, ARTICLE I, OHIO CONSTITUTION.”
Tuscarawas County, Case No. 10AP090034                                                    6


                                                 I

       {¶14} In his first assignment of error, Appellant argues he was denied his due

process rights because the trial court convicted him of two counts of rape which were

differentiated only by the broad time periods involved.            Specifically, Appellant

challenges the lack of specificity in which Counts One and Two of the Indictment were

charged.

       {¶15} “No principle of procedural due process is more clearly established than

that notice of the specific charge, and a chance to be heard in a trial of the issues raised

by that charge, if desired, are among the constitutional rights of every accused in a

criminal proceeding in all courts, state or federal.” Cole v. Arkansas (1948), 333 U.S.

196, 201.

       {¶16} Appellant relies upon Valentine v. Konteh (C.A.6, 2005), 395 F.3d 626,

and State v. Hemphill, Cuyahoga App. No. 85431, 2005-Ohio-3726, which followed

Valentine, in support of his position his constitutional due process rights were violated

when the trial court convicted him of two counts of rape involving C.M. In Valentine, the

United States Court of Appeals for the Sixth Circuit granted habeas corpus relief,

concluding the petitioner’s convictions violated his due process rights because the

prosecution failed to make any factual distinctions among the counts, permitting the

petitioner to be “prosecuted and convicted for a generic pattern of abuse rather than for

forty separate abusive incidents.” Id. at 634.

       {¶17} In Valentine, the petitioner was convicted of 40 counts of sexual abuse: 20

counts each of rape and felonious sexual penetration. The counts of each crime were

identically worded in the indictment. The 8-year-old victim described “typical” abusive
Tuscarawas County, Case No. 10AP090034                                                   7


behavior by the defendant and then testified the “typical” abuse occurred twenty or

fifteen times. Other than the victim's estimate, the State failed to present any evidence

as to the number of incidents. Id. at 633. The Sixth Circuit found the petitioner’s

constitutional rights were violated because there were no distinctions made at any time

before or during trial to differentiate one incident of sexual abuse from another in order

to match each charge with a specific incident. The Valentine Court focused on the fact

there were no factual bases for forty separate incidents contained in the indictment, the

bill of particulars, or in the testimony at trial. Id. at 633. This prevented the jury from

considering each count because they were not connected to distinguishable incidents.

Id. at 633-634.

       {¶18} We find Valentine to be factually distinguishable. In the instant action,

Appellant was charged with two counts of rape involving C.M. The State tailored each

offense to fit a particular time period. Count One, while charged as a continuing course

of conduct, encompassed the period of time from when Appellant’s abuse of C.M.

began until just prior to the child’s tenth birthday. Count Two, which was also charged

as a continuing course of conduct, encompassed the time period from when C.M. was

ten years of age until the abuse was disclosed and Appellant was arrested. As will be

discussed infra, the testimony at trial supported convictions under both time periods.

       {¶19} We find Counts One and Two of the Indictment were charged with

sufficient specificity to put Appellant on notice of the charges against him.

       {¶20} Based upon the foregoing, Appellant’s first assignment of error is

overruled.
Tuscarawas County, Case No. 10AP090034                                                  8


                                              II, III

       {¶21} In his second and third assignments of error, Appellant maintains his

convictions on Counts One, Two, and Three were based upon insufficient evidence and

were against the manifest weight of the evidence.

       {¶22} Our standard of reviewing a claim a verdict was not supported by sufficient

evidence is to examine the evidence presented at trial to determine whether the

evidence, if believed, would convince the average mind of the accused's guilt beyond a

reasonable doubt. The relevant inquiry is whether, after viewing the evidence in the 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 492, superseded by State constitutional

amendment on other grounds as stated in State v. Smith (1997), 80 Ohio St.3d 89, 684

N.E.2d 668.

       {¶23} The Supreme Court has explained the distinction between claims of

sufficiency of the evidence and manifest weight. Sufficiency of the evidence is a

question for the trial court to determine whether the State has met its burden to produce

evidence on each element of the crime charged, sufficient for the matter to be submitted

to the jury.

       {¶24} Manifest weight of the evidence claims concern the amount of evidence

offered in support of one side of the case, and is a jury question. We must determine

whether the jury, in interpreting the facts, so lost its way that its verdict results in a

manifest miscarriage of justice, State v. Thompkins (1997), 78 Ohio St.3d 387, 678

N.E.2d 541, 1997-Ohio-52, superseded by constitutional amendment on other grounds
Tuscarawas County, Case No. 10AP090034                                                    9

as stated by State v. Smith, 80 Ohio St.3d 89, 1997-Ohio-355, 684 N.E.2d 668. On

review for manifest weight, a reviewing court is “to examine the entire record, weigh the

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

determine whether in resolving conflicts in the evidence, the trier of fact clearly lost its

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

reversed. The discretionary power to grant a new hearing should be exercised only in

the exceptional case in which the evidence weighs heavily against the judgment.” State

v. Thompkins, supra, 78 Ohio St.3d at 387, citing State v. Martin (1983), 20 Ohio

App.3d 172, 175. Because the trier of fact is in a better position to observe the

witnesses' demeanor and weigh their credibility, the weight of the evidence and the

credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10

Ohio St.2d 230, 227 N.E.2d 212, syllabus 1.

       {¶25} We first address Appellant’s sufficiency of the evidence challenge. Counts

One and Two involve Appellant’s son, C.M. Count Three involves Appellant’s middle

child, S.M. As discussed, supra, Count One charged rape as a continuing course of

conduct when C.M. was under the age of ten, and Count Two charged rape as a

continuing course of conduct when C.M. was over the age of ten, but under the age of

thirteen. Count Three charged rape as a continuing course of conduct when S.M. was

under the age of ten. Appellant submits the State failed to satisfy the age element

relative to each count. Appellant explains C.M. neither testified regarding a separate,

distinct incident of sexual conduct which occurred before the age of ten nor a separate,

distinct incident of sexual conduct which occurred after the age of ten, but before the

age of thirteen, and S.M., likewise, did not testify regarding a separate, distinct incident
Tuscarawas County, Case No. 10AP090034                                                 10


of sexual conduct which occurred before the age of ten. Appellant concludes without

such testimony there was insufficient evidence to sustain his convictions on Counts

One, Two, and Three. We disagree.

      {¶26} First, the specific age of a rape victim is not an element of the offense, but

rather a special finding which is for sentence enhancement purposes only. Thus,

Appellant cannot utilize any alleged failure by the State to present evidence of the

victims’ ages as support for his argument his underlying convictions for rape are based

upon insufficient evidence.

      {¶27} Furthermore, we find the State presented sufficient evidence Appellant

raped C.M. when the child was under the age of ten, and also when the boy was over

the age of ten, but under the age of thirteen. C.M. testified Appellant began abusing him

when he was five years old. At the time of trial, C.M. was eleven years old, his birthday

being January 8, 1999. C.M. recalled the last time Appellant abused him was just prior

to C.M. being placed in foster care in August, 2009, some nine months after he turned

ten years old. Cathy Beckwith-Laube, the social worker at the C.A.R.E. Center, testified

she interviewed C.M. An audio/video recording of the interview was played for the jury.

We have reviewed the recording and find this evidence alone is sufficient to support

Appellant’s convictions on Counts One and Two.

      {¶28} We also find the State presented sufficient evidence Appellant raped S.M.

when the girl was under the age of ten. S.M. testified Appellant began abusing her when

she was between six and eight years old. At the time of trial, S.M. was thirteen years

old, her birthday being July 5, 1997. Laube also testified she interviewed S.M. An

audio/video recording of the interview was played for the jury. We have reviewed the
Tuscarawas County, Case No. 10AP090034                                                11


recording and find this evidence alone is sufficient to support Appellant’s conviction on

Count Three.

      {¶29} We now turn to Appellant’s assertion his convictions on Counts One, Two,

and Three were against the manifest weight of the evidence. Appellant contends the

testimony of C.M. and S.M. was “vague, uncertain, inconsistent, and incomplete”, and

by relying on such, the jury clearly lost its way. Again, Appellant focuses his argument

on the evidence presented at trial as to the ages of the victims. For the reasons we

found the convictions were based upon sufficient evidence, we, likewise, find the

convictions were not against the manifest weight of the evidence.

      {¶30} Appellant’s second and third assignments of error are overruled.

      {¶31} The judgment of the Tuscarawas County Court of Common Pleas is

affirmed.

By: Hoffman, P.J.

Edwards, J. and

Delaney, J. concur

                                            s/ William B. Hoffman _________________
                                            HON. WILLIAM B. HOFFMAN


                                            s/ Julie A. Edwards___________________
                                            HON. JULIE A. EDWARDS


                                            s/ Patricia A. Delaney _________________
                                            HON. PATRICIA A. DELANEY
Tuscarawas County, Case No. 10AP090034                                         12


         IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


STATE OF OHIO                            :
                                         :
       Plaintiff-Appellee                :
                                         :
-vs-                                     :        JUDGMENT ENTRY
                                         :
LEVI J. MICHAEL                          :
                                         :
       Defendant-Appellant               :        Case No. 10AP090034


       For the reasons stated in our accompanying Opinion, the judgment of the

Tuscarawas County Court of Common Pleas is affirmed. Costs to Appellant.




                                         s/ William B. Hoffman _________________
                                         HON. WILLIAM B. HOFFMAN


                                         s/ Julie A. Edwards___________________
                                         HON. JULIE A. EDWARDS


                                         s/ Patricia A. Delaney _________________
                                         HON. PATRICIA A. DELANEY
