[Cite as State v. Parks, 2019-Ohio-867.]



                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                   JOURNAL ENTRY AND OPINION
                                           No. 106977



                                           STATE OF OHIO

                                                       PLAINTIFF-APPELLEE

                                                vs.

                                            TROY PARKS

                                                       DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED



                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                     Case No. CR-17-621460-A

        BEFORE: Laster Mays, J., Boyle, P.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED:                     March 14, 2019
                                                -i-
ATTORNEY FOR APPELLANT

Michael P. Maloney
24441 Detroit Road, Suite 200
Westlake, OH 44145


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

By: Fallon Radigan
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113




ANITA LASTER MAYS, J.:

       {¶1} Defendant-appellant Troy Parks (“Parks”) appeals his convictions and asks this

court to reverse. After review of the record, we affirm.

       {¶2} Parks was found guilty of two counts of rape, felonies of the first degree, in violation

of R.C. 2907.02(A)(1)(B); three counts of gross sexual imposition, felonies of the third degree, in

violation of R.C. 2907.05(A)(5); one count of kidnapping, a first-degree felony, in violation of

R.C. 2905.01(A)(4); and two counts of endangering children, felonies of the second and third

degrees, in violation of R.C. 2919.22. The rape, kidnapping, and endangering children counts

all contained a notice of prior conviction and a repeat violent offender specification. After a

bench trial, Parks was found guilty and sentenced to life in prison.

I.     Facts

       {¶3} The victim, A.D., is the 12-year-old stepdaughter of Parks. In September 2017,
Parks asked A.D. to come into the bedroom that he and A.D.’s mom, S.D., shared. A.D.

testified that S.D. was asleep on one side of the bed. (Tr. 58.)   A.D. stated that S.D. and Parks

had been drinking alcohol. (Tr. 75.) A.D. testified that while S.D. was asleep in the bed,

Parks and A.D. got into the same bed. Parks then asked A.D. to take off her clothes. (Tr. 57.)

 Parks began to fondle and lick her breasts. (Tr. 60.) A.D. testified that Parks touched her

vagina with his fingers, licked her vagina, and then penetrated her vagina with his fingers. (Tr.

61.)   Parks told A.D. to hold his penis. Id. Parks started rubbing A.D.’s vagina with his

penis. Id. A.D. stated that the sexual activity stopped after S.D. woke up to find Parks on top

of her.    S.D. and Parks began fighting and S.D. stabbed Parks numerous times.      Parks fled the

home and S.D. called the police.

          {¶4} Sergeant Jarod Schlacht (“Sgt. Schlacht”), from the Cleveland Police Department,

was the first officer to respond to S.D.’s call.    Sgt. Schlacht testified that upon arrival, Parks

told Sgt. Schlacht that he was injured. (Tr. 410.) Sgt. Schlacht rendered first aid to Parks and

called for an ambulance.

          {¶5} After Parks arrived at the hospital, Detective Christina Cottom (“Det. Cottom”)

interviewed him.      Det. Cottom presented Parks with a typed-out Miranda warnings that he

signed.     Det. Cottom recorded the interview on a voice recorder.      At the trial, Det. Cottom

testified as to what was contained on the recording.

          State: So on that recording you did explain to the defendant the waiver of his
                            rights, and you do have two X’s on this waiver, is that fair to
                            say?

          Det. Cottom:       Yes.

          State: And where did he sign that waiver?

          Det. Cottom:       He signed on the upper-most one waiving his rights.
State: So that’s why you continued with your statement, is that fair to say?

Det. Cottom:       That’s correct. When I was sitting with him — well, he was in
                   bed and I was sitting. I went you can either sign here
                   (indicating) if you want to talk to me; and if you don’t want to
                   talk to me, you can sign there (indicating). I wanted him to
                   know what line was for what.

State: Okay. And he did, in fact, sign that he wanted to speak with you?

Det. Cottom:       Yes.

***

State: What did the defendant say about the force?

Det. Cottom:       That it wasn’t rape, because there was no force.

State: How old is the victim?

Det. Cottom:       Twelve.

State: Okay. And what did the defendant say about digital penetration?

Det. Cottom:       He didn’t deny it, and then he went on to say that [victim]
                   stuck her own fingers in her vagina.

State: And what did the defendant say about touching [victim’s] breasts?

Det. Cottom:       That he touched her breasts.

State: And he fondled them, correct?

Det. Cottom:       That he fondled them.

State: And what did he say about his penis? What did he do with his penis with
                 [victim]?

Det. Cottom:       That he rubbed it outside [victim’s] vagina.

State: And what did he say with regards to — I’m sorry, strike that.            He
                admitted to doing these things, correct?

Det. Cottom:       Yes, he did.
(Tr. 493-496.)

        {¶6} During cross-examination, Det. Cottom was questioned regarding Parks asking for a

lawyer before he signed the Miranda warning waiver. The state objected and defense asked the

question again. The trial court sustained the objection stating “[t]hat’s not relevant to cross

right now. This isn’t a suppression hearing.”        (Tr. 508.)   Defense counsel questioned the

relevancy of his questioning regarding Parks’s request, and the trial court responded by stating,

“It is not a suppression hearing.   Whether he said he wanted a lawyer — there was no motion to

suppress filed in this case.” Id.

        {¶7} At the end of the bench trial, the trial court found Parks guilty of all charges and

sentenced him to life in prison. He filed this appeal and assigned two errors for our review:

        I.       The trial court erred in denying appellant’s Crim.R. 29 motion for
                 acquittal when there was insufficient evidence to prove the elements of
                 rape; and

        II.      The trial court erred by not suppressing appellant’s statement where it was
                 taken without sufficient Miranda warnings.

II.     Motion for Acquittal

        {¶8} In Parks’s first assignment of error, he contends that there was insufficient evidence

to prove the elements of rape, and thus, the trial court erred in denying his Crim.R. 29 motion for

acquittal.

        A motion for acquittal under Crim.R. 29(A) tests the sufficiency of the evidence.
        State v. Capp, 8th Dist. Cuyahoga No. 102919, 2016-Ohio-295 ¶ 19. A trial
        court must issue a judgment of acquittal where the state’s evidence is insufficient
        to sustain a conviction for an offense. Id. An appellate court is charged with
        reviewing a trial court’s denial of a motion for acquittal by employing the same
        standard it applies when reviewing a sufficiency of the evidence claim. Id.

        When performing a sufficiency inquiry, we do not assess whether the state’s
        evidence is to be believed but whether, if believed, the evidence admitted at trial
       supported the conviction. Id. at ¶ 20. We determine 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. Id.

State v. Alexander, 8th Dist. Cuyahoga No. 104281, 2017-Ohio-1445, ¶ 33-34.

       {¶9} Parks was found guilty of first-degree rape in violation of R.C. 2907.02(A)(1)(b),

which states,

       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: The other person is less
       than thirteen years of age, whether or not the offender knows the age of the other
       person.

       {¶10} In addition,

       “[s]exual conduct” means 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).

       {¶11} Park argues that the evidence was insufficient to find him guilty of rape because

there was no physical evidence of penetration. He contends that the nurse who examined the

victim found no abrasions, bruises, fissures, or similar genital injuries. However, after being

asked about not seeing genital injuries, the nurse testified that, “The tissue — the female tissue

has estrogen on board. The tissue is made to stretch. Being touched or penetrated with a small

object in a girl who has not had her period, but is of age to have started her period and has

reached puberty, you are not going to see an injury.” (Tr. 235.) However, “a physical injury is

not a condition precedent to a conviction for rape; not all rape victims exhibit signs of physical

injury.” State v. Leonard, 8th Dist. Cuyahoga No. 98626, 2013-Ohio-1446, ¶ 46.
       {¶12} The victim testified that Parks digitally penetrated her.   The victim’s testimony

was as follows:

       State: Okay. And when did he get naked?

       Victim:       After we were in the bed.

       State: Okay. And were you under the covers or over the covers?

       Victim:       Over.

       State: Okay. And you took your pants off?

       Victim:       Yes.

       State: And you took your underwear off?

       Victim:       Yes.

       State: Did you take your shirt off?

       Victim:       No.

       State: So did you have your bra on?

       Victim:       Yes.

       State: Okay. You sleep with your bra on?

       Victim:       Yes.

       State: Okay. And did you take your clothes off before he started to touch you or
                    after?

       Victim:       Before.

       State: Okay. So where did he first touch you?

       Victim:       My chest.

       State: Okay. And that’s when you said he was licking your chest?

       Victim:       Yes.
       State: Okay. And when did he start to move down your body?

       Victim:        Shortly after.

       State: Okay. And then that’s when you said he rubbed your vagina?

       Victim:        Yes.

       State: And you said he penetrated you?

       Victim:        Yes.

       State: And he penetrated you with what?

       Victim:        His finger.

(Tr. 106.)

       {¶13} We find that the victim’s testimony that Parks penetrated her with his fingers, “if

believed, is sufficient to support each element of rape.” (Citations omitted.) State v. Dean,

2018-Ohio-1740, 112 N.E.3d 32, ¶ 35 (6th Dist.).

       See, e.g., State v Jackson, 2015-Ohio-5490, 63 N.E.3d 410, ¶ 44 (2d
       Dist.)(victim’s statement that defendant twice “‘fingered her vagina on the inside’
       * * * met elements of engaging in sexual conduct”); State v. White, 3d Dist.
       Seneca No. 13-16-21, 2017-Ohio-1488, ¶ 36 (victim’s testimony that defendant
       “put his fingers down in [her] vagina” was sufficient evidence of sexual conduct);
       State v. Wright, 6th Dist. Lucas No. L-12-1327, 2013-Ohio-5910, ¶ 13 (victim’s
       statement that defendant touched her skin “and then he put his fingers up there”
       appeared “to mean insertion” for purposes of sexual conduct) (Emphasis sic.);
       State v. Smith, 10th Dist. Franklin No. 03AP-1157, 2004-Ohio-4786, ¶ 19
       (testimony of digital penetration sufficient where victim “testified that defendant
       put his finger in her ‘pee-pee’”).

State v. Remy, 2d Dist. Clark No. 2017-CA-7, 2018-Ohio-2857, ¶ 155.

       {¶14} Additionally, the SANE nurse testified that because of the victim’s age and the

penetration was done with a small object, injuries would not be seen. A victim’s testimony

concerning penetration need not be corroborated by the medical evidence. See State v. Nivens,

10th Dist. Franklin No. 95APA09-1236, 1996 Ohio App. LEXIS 2245 at 6 (May 28, 1996) (even
without corroborating medical evidence, a victim’s testimony that the perpetrator placed his

penis in her vagina constitutes penetration).     For these reasons, we find that the element of

penetration is supported by legally sufficient evidence.

        {¶15} Parks’s first assignment of error is overruled.

III.    Suppression of Evidence

        {¶16} In Parks’s second assignment of error, he argues that the trial court erred by not

suppressing his statements to Det. Cottom, because it was taken without sufficient Miranda

warnings. More specifically, Parks states that he invoked his right to counsel while at the

hospital but Det. Cottom continued talking with him.         Parks allege that all questions from Det.

Cottom should have ceased and therefore the trial court should have suppressed those statements.

        {¶17} During cross-examination, defense counsel asked Det. Cottom “[a]nd didn’t we

hear on the video, ma’am, Troy Parks, before he signed this waiver ask for his lawyer?         Didn’t

we hear that?” Det. Cottom responded “yes.” (Tr. 507.) A review of the recording reveals that

Parks stated that he wanted to talk to a lawyer to get the time line of the events correct.    At that

point, Det. Cottom ceased interviewing Parks, and began informing Parks of his rights. Parks

then informed Det. Cottom that he has mood swings, is bipolar and could not read or write very

well.   Det. Cottom proceeded to read and explain Parks’s rights to him.       Det. Cottom informed

Parks that he did not have to talk to her or answer any of her questions. Parks asked Det.

Cottom if he could stop the interview at any time.     She informed him that he could.

        {¶18} Parks told Det. Cottom that he felt comfortable answering her questions, but he

wanted to talk to a lawyer later to figure everything out.     She asked him repeatedly if he wanted

to talk to her or if he did not want to talk to her.   Parks decided that he wanted to talk to Det.

Cottom and signed the Miranda warning waiver.           Since the Det. Cottom had given complete
Miranda warnings and obtained a written waiver before asking Parks any questions about the

rape, Det. Cottom fully complied with the constitutional requirements. State v. Hale, 119 Ohio

St.3d 118, 2008-Ohio-3426, 68 N.E.3d 327, ¶ 34.

       {¶19} The trial court listened to the recording and made the determination that the

waiver was valid. It stated, “[t]he fact of the matter is there was no motion to suppress filed in

this case. Even if there was, having heard that interview, I didn’t hear anything that I would

interpret as some type of trickery or coercion. I think he voluntarily waived his right to talk.   I’m

going to overrule the objection.” (Tr. 527.) In order for a defendant’s waiver of Miranda

rights to be valid, the waiver must be knowingly, intelligently, and voluntarily made.       Miranda

v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), supra, at 444. Absent a

showing that the waiver was voluntary, the waiver is invalid and the defendant’s statements

should be suppressed.       Miranda, supra. State v. Kent, 8th Dist. Cuyahoga No. 90795,

2009-Ohio-3889, ¶ 26.

       {¶20} The record also reveals that Parks’s trial counsel did not file a motion to suppress

Parks’s alleged illegally obtained statements to the detectives.     “By failing to file a motion to

suppress illegally obtained evidence, a defendant waives any objection to its admission. State v.

Campbell, 69 Ohio St.3d 38, 44, 630 N.E.2d 339 (1994).” State v. Osie, 140 Ohio St.3d 131,

2014-Ohio-2966, 16 N.E.3d 588, ¶ 136.

       {¶21} The trial court stated,

       Let the record reflect also that you are very respected defense counsel and
       experienced. I have no doubt that if you thought that you had a substantive
       suppression motion, you would have asked for that on your client’s behalf. I
       don’t want anyone — if somebody should ever claim ineffective assistance of
       counsel, I don’t want this part of the record to be used as that. I’m quite certain
       that had you felt that you had a substantive argument in that respect, you would
       have advanced it before trial.
(Tr. 527-528.)

       {¶22} For these reasons, we find that the trial court did not err by not suppressing Parks’s

statements to Det. Cottom during the bench trial.

       {¶23} Parks’s second assignment of error is overruled.

       {¶24} Judgment is affirmed.

       It is ordered that the 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.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.



__________________________________________
ANITA LASTER MAYS, JUDGE

MARY J. BOYLE, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
