         [Cite as State v. Austin, 2012-Ohio-4232.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                        :   APPEAL NO. C-110804
                                                          TRIAL NO. B-1100995
        Plaintiff-Appellee,                           :

  vs.                                                 :      O P I N I O N.

TERRY AUSTIN,                                         :

    Defendant-Appellant.                              :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: September 19, 2012


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Christine Y. Jones, for Defendant-Appellant.




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



J. H OWARD S UNDERMANN , Presiding Judge.

         {¶1}    Defendant-appellant Terry Austin appeals his convictions for possession

of cocaine and two counts of rape with repeat violent offender (“RVO”) and sexually

violent predator (“SVP”) specifications. In five assignments of error, he argues that his

rape convictions and the SVP specifications are against the weight and the sufficiency of

the evidence; the trial court erred by denying his motions for a judgment of acquittal; the

trial court imposed a sentence that was contrary to law; and the trial court prejudiced his

defense by refusing to permit his sister’s testimony at trial. Finding none of his

arguments meritorious, we affirm his convictions.

                                    I. Trial Court Proceedings

         {¶2}    Austin was arrested and charged with one count of aggravated burglary,

two counts of rape, and one count of possession of cocaine. The aggravated-burglary

and rape charges included a RVO specification. Each rape charge also included a SVP

specification. Austin elected to have the RVO and the SVP specifications tried to the

court.

         {¶3}    At a jury trial on the underlying charges, the state presented evidence

that during the early morning hours of February 12, 2011, C.H. had been sleeping in her

bed, when she was awakened by the sound of her apartment door opening. She saw

Austin, whom she knew from the neighborhood, standing inside her apartment holding

a puppy. Austin knew C.H. had her own dog as he had previously played with it in her

apartment.      C.H. asked Austin to leave several times. He offered her $10, a cellular

phone, and a $50 piece of crack cocaine. When C.H. again asked Austin to leave, Austin

became angry, telling her that if she didn’t give him what he wanted, he was going to

bash her brains in. C.H. thought he was joking at first, and was just insinuating that he

wanted sex. So she continued to tell him to leave.



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          {¶4}    Austin eventually picked up a baseball bat that was in the apartment.

He held it up to C.H.’s dog and threatened to kill it. When C.H. stood up and attempted

to take the bat from Austin, he punched her in the mouth, causing C.H. to fall against

her television set. C.H. then started looking for her phone, but Austin had already taken

it. Austin held the bat up over C.H. and told her to remove her clothes. C.H., who feared

for her life, submitted to vaginal intercourse with Austin. C.H. testified that Austin

penetrated her vagina for twenty-five minutes before ejaculating. Austin then forced

C.H. into the bathroom and used a washcloth to clean himself. He also made C.H. clean

herself with a different washcloth. Austin then demanded anal intercourse. When C.H.

refused, Austin, still holding the baseball bat at his side, forced C.H. to have vaginal

intercourse with him again. Austin eventually fell asleep and C.H. was able to get her

phone from his pocket. She put on some clothes and went into the hallway to call the

police.

          {¶5}   When Cincinnati Police Officers Dan Hoderlein and John Homan

arrived at 6:30 a.m., they found Austin asleep on C.H.’s bed with his pants down around

his ankles. Austin first told police that he did not have sex with C.H., but he later

admitted to having sex with her. He denied raping her. Officer Hoderlein searched

Austin and found a crack cocaine rock, $10, and a cellular phone. Detective Jeff

Smallwood photographed the apartment and collected evidence, which included the two

washcloths, a beer can, bed sheets, and a baseball bat.

          {¶6}   Detective Jim Wigginton, who was assigned to the Personal Crimes Unit

of the Cincinnati Police Department, and Officer Charlene Morton interviewed both

C.H. and Austin. They interviewed C.H. first. C.H. was then transported to University

Hospital. Michelle Wilcox, a sexual assault nurse examiner at University Hospital,

examined C.H. and prepared a report. Wilcox noted that C.H. had a swollen and bruised



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lower lip that appeared to be recently injured. She used a rape kit and followed the

protocol to collect evidence. She took various swabs and pictures. She testified that the

examination took roughly four hours.

          {¶7}   In the meantime, Detective Wigginton and Officer Morton were

interviewing Austin.    They recorded the interview, which was played for the jury.

Detective Wigginton testified that he also took swabs from Austin’s penis. Although he

submitted the rape kit to the lab and later submitted the washcloths, Detective

Wigginton forgot about the penile swabs until testifying at trial. The penile swabs were

still in the police property room. They were immediately submitted to the lab for

analysis at Austin’s request.

          {¶8}   Kelly Ashton-Hand, a DNA analyst and serologist with the Hamilton

County Coroner’s lab, analyzed the washcloths, the rape kit, and the penile swabs. She

prepared reports summarizing her findings. From the vaginal swabs in the rape kit,

Ashton-Hand was able to obtain a DNA profile that matched C.H. She also identified

the presence of semen, but there was not enough to obtain a DNA profile. A swab taken

from the front of C.H.’s neck was identified as saliva, and the DNA profile matched

Austin.     The washcloths were also analyzed and the DNA profiles obtained were

mixtures from which Austin could not be excluded as a contributor. Ashton-Hand later

analyzed the penile swabs and found the presence of DNA that matched C.H.’s profile.

          {¶9}   Austin presented testimony from C.H.’s neighbor, Hoodia Collins.

Collins had lived in the same apartment with C.H. for eight and a half years. Collins

testified that C.H. often “hung out” with Austin, and that on the day of the alleged rape

C.H. had stated that she was going to call Austin and ask him to bring her some beer and

cigarettes. C.H., who was moving from her apartment, had also asked Collins for money

to help with her moving expenses. Collins further testified that she, not C.H., had let the



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police into the apartment building, that she had walked into C.H.’s apartment, and that

C.H. had told her “that guy [Austin] did not have nothing but $50.” To rebut Collins’s

testimony, the state presented C.H.’s 911 call.

       {¶10}    The jury acquitted Austin of aggravated burglary, but convicted him of

the two counts of rape and possession of cocaine. At a subsequent trial on the SVP and

the RVO specifications, the state introduced a certified copy of Austin’s 1989 conviction

for rape.   The trial court found Austin guilty of the SVP and the RVO specifications.

After concluding that Austin did not meet the statutory criteria for the RVO sentencing

enhancement, it imposed only the sentencing enhancement for the SVP specification.

Pursuant to R.C. 2971.03(A)(3)(d)(ii), the trial court sentenced Austin to 15 years to life

for each rape offense. It sentenced Austin to six months for the possession of cocaine

offense. The trial court ordered that all the sentences be served concurrently. The trial

court also explained Austin’s duty to register as a Tier III sex offender.

                            II. Sufficiency and Weight of the Evidence

       {¶11}    In his first, second, and third assignments of error, Austin argues that

his rape convictions and the SVP specifications were based on insufficient evidence and

were against the manifest weight of the evidence, and that the trial court erred by

denying his Crim.R. 29 motions for judgments of acquittal.

       {¶12}    When reviewing a trial court’s denial of a Crim.R. 29 motion, this court

must determine “if the evidence is such that reasonable minds can reach different

conclusions as to whether each material element of a crime has been proved beyond

a reasonable doubt.” See State v. Bridgeman, 55 Ohio St.2d 261, 381 N.E.2d 184 (1978),

syllabus. To reverse a conviction for insufficient evidence, we must be persuaded, 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.



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See State v. Waddy, 63 Ohio St.3d 424, 430, 588 N.E.2d 819 (1992).          To reverse a

conviction on the manifest weight of the evidence, we must weigh the evidence and all

reasonable inferences, consider the credibility of the witnesses, and conclude that in

resolving conflicts in the evidence, the trier of fact clearly lost its way and created a

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

N.E.2d 541 (1997).

                                       A. Rape Offenses

       {¶13}    Austin first argues that the state presented insufficient evidence for the

jury to find him guilty of the two counts of rape. R.C. 2907.02(A)(2) 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.”

       {¶14}    C.H. testified that she was asleep and awoke to discover Austin in her

apartment. When C.H. asked Austin to leave and indicated that she was not interested

in having sex with him, Austin threatened her and her dog with a baseball bat. When

C.H. attempted to take the bat from him, Austin punched C.H. in the mouth. He then

held the bat over her head while she undressed. Austin put his penis into her vagina on

two separate occasions. The DNA mixture found on the washcloths revealed a profile

from which Austin could not be excluded, and the DNA found on C.H.’s neck matched

Austin’s profile. C.H.’s DNA was also found on swabs taken from Austin’s penis. When

the police arrived at C.H.’s apartment, they found Austin passed out in C.H.’s bed with

his pants down around his ankles. Because this evidence was sufficient to establish each

element of rape, the trial court properly denied Austin’s Crim.R. 29 motions.        This

evidence, moreover, was sufficient for the jury to find Austin guilty of the two rape

offenses.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶15}    While Austin denied raping C.H. and presented testimony from C.H.’s

neighbor, Hoodia Collins, that C.H. had discussed inviting Austin to her apartment that

day to bring her cigarettes and to ask him for money, and that C.H. had told her that she

had taken $50 from Austin after the alleged rape, the credibility of these witnesses’

testimony was for the jury to determine.         After reviewing the record, we cannot

conclude that the jury lost its way and created such a manifest miscarriage of justice that

we must reverse Austin’s convictions for rape and order a new trial.

                      B. Sexually Violent Predator Specifications

       {¶16}    Austin next challenges the sufficiency of the evidence adduced for the

SVP specifications.   He argues that the trial court improperly relied on his 1989 rape

conviction to support the specifications. His argument is premised upon the Ohio

Supreme Court’s decision in State v. Smith, 104 Ohio St.3d 106, 2004-Ohio-6238, 818

N.E.2d 283.

       {¶17}    In Smith, the Supreme Court was concerned with interpreting a former

version of R.C. 2971.01(H)(1), which defined a SVP as “a person who has been convicted

of or pleaded guilty to committing, on or after January 1, 1997, a sexually violent

offense and is likely to engage in the future in one or more sexually violent offenses.”

(Emphasis added.) The Supreme Court held that a “[c]onviction of a sexually violent

offense cannot support the specification that the offender is a sexually violent predator

as defined in R.C. 2971.01(H)(1) if the conduct leading to the conviction and the * * *

specification are charged in the same indictment.”        Id. at syllabus.   Rather, “R.C.

2971.01(H)(1) requires that only a conviction that existed prior to the indictment of the

underlying offense can be used to support the specification.” Id. at ¶ 1.

       {¶18}    In response to Smith, the legislature amended R.C. 2971.01(H)(1) to its

current version, which defines a SVP as a “person who, on or after January 1, 1997,



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                      OHIO FIRST DISTRICT COURT OF APPEALS



commits a sexually violent offense and is likely to engage in the future in one or more

sexually violent offenses.” (Emphasis added.) Thus, the statute now provides that a

sexually violent offense in the current indictment can be the basis for the SVP

specification. See State v. Green, 8th Dist. No. 96966, 2012-Ohio-1941, ¶ 23-25; State

v. Mitchell, 8th Dist. No. 9487, 2010-Ohio-5775, ¶ 21-30; State v. Boynton, 8th Dist. No.

93784, 2010-Ohio-4670, ¶ 2-6; State v. Wagers, 12th Dist. No. CA2009-06-018, 2010-

Ohio-2311, ¶ 27-32; State v. Hardges, 9th Dist. No. 24175, 2008-Ohio-5567, ¶ 50.

       {¶19}    Austin argues that his 1989 rape conviction cannot be used as the

predicate offense for the SVP specification, because the offense was committed before

1997. But the record reflects that the trial court used Austin’s commissions of rape in the

current indictment to satisfy the first part of R.C. 2971.01(H)(1). Because the current

version of R.C. 2971.01(H)(1) permits the trial court to rely on Austin’s commission of

those offenses to satisfy the first part of the statutory definition of a SVP, we find

Austin’s argument meritless.

       {¶20}    With respect to the second part of the definition—Austin’s likelihood of

engaging in sexually violent offenses in the future—R.C. 2971.01(H)(2) provides that

       “[f]or purposes of division (H)(1) of this section, any of the following

       factors may be considered as evidence tending to indicate that there is a

       likelihood that the person will engage in the future in one or more

       sexually violent offenses:

               (a) The person has been convicted two or more times, in separate

       criminal actions, of a sexually oriented offense or a child-victim oriented

       offense. For purposes of this division, convictions that result from or are

       connected with the same act or result from an offense committed at the




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       same time are one conviction, and a conviction set aside pursuant to the

       law is not a conviction.

               (b) The person has a documented history from childhood, into the

       juvenile development years, that exhibits sexually deviant behavior.

               (c) Available information or evidence suggests that the person

       chronically commits offenses with a sexual motivation.

               (d) The person has committed one or more offenses in which the

       person has tortured or engaged in ritualistic acts with one or more

       victims.

               (e) The person has committed one or more offenses in which one

       or more victims were physically harmed to the degree that the particular

       victim’s life was in jeopardy.

               (f) Any other relevant evidence.

       {¶21}      In making its finding that Austin was likely to engage in sexually violent

offenses in the future, the trial court relied upon the facts of the current offense. The

trial court further stated that Austin had served 18 years in prison for the 1989 rape; that

Austin was on parole for the 1989 rape conviction; and that he was staying at a sexual

offender halfway house as required by the department of corrections when he

committed the current rape offenses. On this record, sufficient evidence supported the

trial court’s finding that Austin is likely to engage in the future in one or more sexually

violent offenses, and that, he is, therefore, a SVP. Furthermore, we cannot conclude that

the trial court’s findings were against the manifest weight of the evidence.

       {¶22}      Having concluded that the trial court properly denied Austin’s Crim.R.

29 motions, and that his rape convictions and the SVP specifications were supported by




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sufficient evidence and were not against the manifest weight of the evidence, we overrule

his first, second, and third assignments of error.

                                        III. Prison Sentence

       {¶23}    In his fourth assignment of error, Austin argues that his 15-year-to-

life prison sentence was erroneous and excessive.

       {¶24}    When reviewing felony sentences, we engage in a two part analysis.

We first determine whether the sentences are contrary to law.              See State v.

Alexander, 1st Dist. Nos. C-110828 and C-110829, 2012-Ohio-3349, ¶ 9. If the

sentences are not contrary to law, “we must review them to determine whether the

trial court abused its discretion in selecting sentences within the range permitted by

statute.” Id.

       {¶25}    Austin argues that his aggregate sentence is contrary to law because

he should not have been found guilty of the SVP specifications. Thus, he argues that

the maximum prison sentence the trial court could have imposed for each rape

offense was ten years. But we have concluded in our disposition of Austin’s first

assignment of error that sufficient evidence supports the trial court’s findings on the

SVP specifications.

       {¶26}    Because Austin was found guilty of two counts of rape under R.C.

2907.02(A)(2), each with a SVP specification, the trial court was required to “impose

an indefinite prison term consisting of a minimum term fixed by the court that is not

less than ten years and a maximum term of life imprisonment” on each count. See

R.C. 2971.01(A)(3)(d)(iii). Austin’s sentence of 15 years to life for each of the rape

offenses, while not the minimum sentence the court could impose, fell within the

statutory range, and, thus, was not contrary to law.




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         {¶27}    Nor can we conclude that the trial court abused its discretion in

imposing the sentences based upon the brutal nature of the rape offenses, Austin’s

criminal record, and the fact Austin had committed the rape offenses while he was

still living in a halfway house after having been released from a significant prison

term for a 1989 rape conviction.      We, therefore, overrule his fourth assignment of

error.

                 IV. Trial Court’s Exclusion of Testimony From Austin’s Sister

         {¶28}    In his fifth assignment of error, Austin argues the trial court abused

its discretion when it prohibited his sister from testifying at trial. He argues that the

trial court should have remedied the matter with a brief continuance instead of

excluding her testimony.

         {¶29}    Broad discretion is afforded to the trial court in regulating discovery

and in determining the appropriate sanctions for violations. In exercising their

discretion, trial courts must inquire into the circumstances surrounding the violation

and impose the least severe sanction. See City of Lakewood v. Papadelis, 32 Ohio

St.3d 1, 511 N.E.2d 1138 (1987), paragraph two of the syllabus.

         {¶30}    At the close of the state’s case, defense counsel sought to present

Austin’s sister as a witness in his defense. Counsel explained to the trial court that he

was unaware that his client’s sister would testify that she received a call from C.H. on

the night of the offense inviting her over to party and that C.H. had also called to

invite Austin over to party. The state objected, arguing there was not enough time for

it to subpoena the witness’s phone records.

         {¶31}    Crim.R. 16(A) provides that “[a]ll duties and remedies are subject to a

standard of due diligence, apply to the defense and prosecution equally, and are

intended to be reciprocal.” Here, the trial court inquired into the circumstances of



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the defense’s late notice, asking how with due diligence it was not discovered until

the first day of trial that the defendant’s sister was friends with C.H. and had had a

telephone conversation with her on the night of the offense.     The trial court found

that allowing the witness to testify would be prejudicial to the state because it would

not be able to cross-examine the witness with phone records due to such late notice.

       {¶32}   We cannot conclude the trial court abused its discretion by failing to

grant Austin’s counsel a “brief continuance” to remedy the situation when the trial

court had already continued the trial in progress for two days because Austin had

wanted the penile swabs analyzed. We, therefore, overrule his fifth assignment of

error and affirm the judgment of the trial court.
                                                                  Judgment affirmed.

CUNNINGHAM and DINKELACKER, JJ., concur.


Please note:
       The court has recorded its own entry this date.




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