IN THE SUPREME COURT OF OHIO STATE OF OHIO : CASE NO. 08-1864 vs. Plaintiff-Appellee On Appeal from the Fayette County Court of Appeals, 12"' Appellate District EDWARD WELTON JR. Defendant-Appellant Court of Appeals Case No. CA2006-07-028 MEMORANDUM IN OPPOSITION TO JURISDICTION OF APPELLANT, EDWARD WELTON JR. DAVID B. BENDER (#0037249) Fayette County Prosecuting Attorney and KR3STINA M. ROOKER (#0073784) Assistant Prosecuting Attorney 110 East Court Street Washington C.H., Ohio 43160 (740) 335-0888 telephone (740) 333-3539 facsimile COUNSEL FOR APPELLEE EDWARD WELTON JR. (526-713) Lebanon Correctional Institution P.O. Box 56 3791 State Route 63 Lebanon, Ohio 45036 APPELLANT, PRO SE ^ S Q QV 2 (]20 u8 CLERK OF COURT SUPREME COURT OF OHIO
I. TABLE OF CONTENTS 1. TABLE OF CONTENTS............................................ I II. EXPLANATION AS TO WHY THIS CASE IS NOT OF PUBLIC OR GREAT GENERAL INTEREST AND DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL QUESTION..................................... 1 III. STATEMENT OF THE CASE AND FACTS A. Procedural Posture... 2 B. Statement of Facts... 2 IV. ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW PROPOSITION OF LAW NO. I....................................... 5 APPELLANT COUNSEL NEGLECTED TO PROPERLY ARGUE THE CONSTITUTIONALITY OF THE APPELLANT'S CONFESSION, WHICH WAS OBTAINED IN VIOLATION OF HIS RIGHT TO REMAIN SILENT UNDER MIRANDA Y. ARIZONA, 384 U.S. 436, 86 S.CT 1602,16 L.ED 2D 694 (1966). PROPOSITION OF LAW NO. II...................................... 7 APPELLANT COUNSEL WAS INADEQUATE FOR FAILING TO ARGUE THAT THE TRIAL COURT SHOULD HAVE GRANTED APPELLANT'S RULE 29 MOTION FOR JUDGMENT OF ACQUITTAL. THE STATE FAILED TO PROVE THAT APPELLANT COMMITTED THE CRIMES CHARGED BEYOND A REASONABLE DOUBT. V. CONCLUSION...... 11 VI. CERTIFICATE OF SERVICE....................................... 11
II. EXPLANATION AS TO WHY THIS CASE IS NOT OF PUBLIC OR GREAT GENERAL INTEREST AND DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL QUESTION. This case is not of public or great general interest and does not involve a substantial constitutional question as the issues brought forward by Appellant have been settled by this Court in prior decisions and Appellant has not established that he received ineffective assistance of appellate counsel. Additionally, neither of the Propositions of Law set forth by Appellant contain issues which are in conflict among the lower courts in the State. In his first Proposition of Law, Appellant alleges that his prior counsel was ineffective for failing to "properly" argue the constitutionality of Appellant's confession. This issue was brought up by Appellant's prior counsel in his appeal to the Twelfth District Court of Appeals and it was brought up by Appellant in his previous Memorandum in Support of Jurisdiction filed with this Court. Appellant cannot succeed on a claim of ineffective assistance of counsel because he does not like the way prior counsel argued an issue especially when he later argued the issue exactly the same way in his Memorandum in support of Jurisdiction that he filed with this Court. Furthermore, Appellant was properly advised of his Miranda rights prior to his confession and waived such rights. Thus, there is no issue with the constitutionality of Appellant's statement and its admission at his trial. In his second Proposition of Law, Appellant alleges that his prior counsel was ineffective for failing to argue that the trial court erred in overruling his Criminal Rule 29 Motion for Acquittal. Prior counsel for Appellant set fourth four assignments of error in the brief that was filed with the Twelfth District Court of Appeals and there is absolutely no reason to believe that Appellant would have been successful on appeal with such issue. Appellant has not met his 1
burden of showing counsel failed in any essential duty owed to him or that he was prejudiced in any way. III. STATEMENT OF THE CASE AND FACTS A. PROCEDURAL POSTURE The Fayette County Grand Jury returned an indictment against Appellant on March 27, 2006. This indictment charged Appellant with three counts of Rape in violation of R.C. 2907.02(A)(1)(b), all felonies of the first degree. Each count of the indictment also contained a specification stating that the victim was under the age of ten at the time of the offenses. This matter proceeded to jury trial on June 28, 2006. The jury returned verdicts of not guilty on counts one and two and returned a guilty verdict on count three. The jury also found that the victim was under the age of ten at the time of the offense for which they returned a guilty verdict. A sex offender classification hearing was held immediately prior to sentencing on July 5, 2006 and Appellant was found to be a Sexual Predator and an Aggravated Sexually Oriented Offender. The trial court then went on to impose a mandatory life sentence for the single count of Rape that Appellant was convicted of. B. STATEMENT OF FACTS In December of 2005 Tammy Welch observed her daughter, Ashlie Welch, inserting objects into her little sister's "private parts". T. at 124. Ms. Welch questioned her daughter Ashlie concerning where she would have learned such behavior and Ashlie disclosed to her that Appellant had "touched her". T. at 125. Ms. Welch testified that Ashlie was upset and crying during this disclosure and that Ashlie was not able to verbalize what had happened but that Ashlie wrote it on a piece of paper. Id. 2
Ashlie Welch spent the night with her grandma, Tammy Welch O'Dell, on the same day that she made the disclosure to her mom that Appellant had "touched her". T. at 138. Ms. O'Dell testified that Ashlie seemed okay when she first came over but that later she became upset when Ms. O'Dell told her that she could tell her about anything. T. at 140. Ashlie then told her grandma that Appellant had touched her "in the place where she pees from" and that Appellant had "stuck it in her". Id. Ashlie also said that this happened three times. Id. Ashlie Welch testified in open court concerning what Appellant had done to her. Ashlie described three separate incidents when Appellant inserted his private part into her private part. T. at 168-180. Ashlie described where the incidents occurred, what she was wearing at the time, and what Appellant was wearing at the time. Id. Ashlie described Apellant's private part as looking like a finger but being bigger than a finger and pointed on her body where her private part was. T. at 171, Laura Butt, an investigator for Ross County Children Services, then testified. Her agency received a report on December 27, 2005 and she subsequently set up an interview with Ashlie Welch. T. at 220. Ms. Butt interviewed Ashlie Welch on January 4, 2006 concerning possible sexual abuse and this interview was video taped. T. at 220-221. Ms. Butt testified that the following are characteristics of young sexual abuse victims: touching themselves, touching other children, bed wetting, thumb sucking, and overall behavioral changes. T. at 222. Ms. Butt contacted Sgt. Lowe at the Washington Police Department as a result of the interview she conducted with Ashlie Welch. T. at 223. On cross examination, Ms. Butt was questioned concerning the content of Ashlie's disclosure to her and she stated that Ashlie told her Appellant took her clothes off, put her on the bed, and put his "private part" in her "private part". T. at 225. 3
Ashlie also told Ms. Butt that this took place on three different occasions. T. at 226. The three occasions that Ashlie told Ms. Butt about were in the sunnner when Ashlie was six years old, in the summer when Ashlie was seven years old, and on her most recent birthday. T. at 226-227. Dr. Luckidoo who examined Ashlie Welch as part of her monthly clinic at the Ross County Child Protection Center testified concerning the physical examination she performed. Dr. Luckidoo's examination of Ashlie Welch took place in January 2006. T. at 231. During her examination Dr. Luckidoo saw a "v" shaped area at the entrance of Ashlie's vagina which Dr. Luckidoo felt was evidence of a healing injury or a potential congenital anomaly. Id. Dr. Luckidoo testified that this could be consistent with Ashlie being the victim of sexual abuse. T. at 232. Immediately prior to the examination, Ashlie told Dr. Luckidoo that she was there because Appellant put his "private" in hers. Id. Appellant was interviewed by Cindy Irwin at BCI & I in London, Ohio on March 15, 2006. Ms. Irwin testified that Appellant initially denied the allegations concerning Ashlie Welch, then he claimed he did not remember, then he said that he thought it was his wife because of the way Ashlie was touching him. T. at 237-238. Appellant then admitted to putting his bare penis in Ashlie's bare vagina "just a little way" because he was well endowed and it would not go in any further. Id. This interview was observed by Sgt. Lowe of the Washington Police Department via closed circuit television. T. at 238. After making this admission to Ms. Irwin Appellant requested to talk to Sgt. Lowe. Sgt. Lowe testified concerning his interview with Appellant in February of 2006 and Appellant's second interview that took place at BCI & I on March 15, 2006. During an interview in February 2006 which took place at the Washington Court House Police Department Appellant 4
was informed of the allegations and made no admissions. T. at 248-250. Sgt. Lowe testified that when he interviewed Appellant in February Appellant claiined that he did not remember Ashlie being at his house on her birthday and said he did not know why someone would say these things about him. Id. Sgt. Lowe described Appellant as being somewhat slouched, almost crying once, becoming quiet several times, and inappropriately laughing during the February interview. Id. Sgt. Lowe subsequently set up an interview for Appellant at BCI & I which took place on March 15, 2006. Sgt. Lowe stated that he observed Cindy Irwin's interview with Appellant through closed circuit television. T. at 250. Sgt. Lowe's testimony concerning Ms. Irwin's interview with Appellant matched the testimony of Ms. Irwin. T. at 252-260. Sgt. Lowe talked to Appellant following his admission to Ms. Irwin. Sgt. Lowe asked Appellant if he put his bare penis in Ashlie Welch's bare vagina and Appellant replied "yes". T. at 253. IV. ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW Proposition of Law No. I: APPELLANT COUNSEL NEGLECTED TO PROPERLY ARGUE THE CONSTITUTIONALITY OF THE APPELLANT'S CONFESSION, WHICH WAS OBTAINED IN VIOLATION OF HIS RIGHT TO REMAIN SILENT UNDER MIRANDA Y. ARIZONA, 384 U.S. 436, 86 S.CT 1602,16 L.ED 2D 694 (1966). Counsel for Appellant did raise the issue of whether Appellant's confession was obtained in violation of the law and whether the confession should have been admitted into evidence at Appellant's trial. This issue was raised and argued both at the Twelfth District Court of Appeals and with this Court. Appellant cannot establish that he received ineffective assistance of counsel merely because he does not like the way his attorney argued a certain issue. 5
The test, set forth by this Court, for determining whether a defendant was provided effective assistance of counsel is "whether the accused, under all the circumstances...had a fair trial and substantial justice was done." See State v. Hester, 45 Ohio St. 2d 71 (1976). There is a two step test appellate courts are to use in evaluating allegations of ineffective assistance of counsel. "First, it must be determined whether there has been a substantial violation of an essential duty owed by the defense counsel to the defendant. If such violation is found, there must next be a determination as to whether the defendant was prejudiced by such a violation." See State v. Cooperrider, 4 Ohio St. 3d 226 (1983). No such violation or prejudice can be established in this case. The trial court was not in error by permitting Sgt. Lowe and Cindy Irwin to testify at Appellant's trial concerning Appellant's confession. Because there was no objection at Appellant's trial to the testimony of Sgt. Lowe or to the testimony of Cindy Irwin the proper standard for review on this issue is plain error. As the Twelfth District Court of Appeals held in State v. Lamb, " an alleged error does not constitute plain error unless, but for the error the outcome of the trial clearly would have been otherwise." See State v. Lamb, 2003 Ohio App. LEXIS 3482. Furthermore, "notice of plain error must be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." See Id. Additionally, a trial court is given discretion in determining whether to admit evidence and but for an abuse of that discretion a trial courts decision concerning admission of evidence should not be reversed. In order for an appellate court to reverse the decision of a trial court in admitting evidence, "the trial court's abuse of discretion must have materially prejudiced the defendant." See State v. Adams, 62 Ohio St. 2d 151 at 157 (1980). 6
Appellant argues that Sgt. Lowe and Cindy Irwin should not have been permitted to testify concerning Appellant's confession because it was unjust and a violation of Appellant's state and federal due process rights. However, Appellant provides absolutely no support for such an assertion. When Appellant was interviewed at BCI & I on March 15, 2006 he was given his Miranda rights and waived such rights. There is no allegation that there was a violation of Appellant's rights or that his confession was not voluntary. Apparently because some courts in other states require the recording of interrogations Appellant feels that standard should be applied in this case even though there is no such requirement in Ohio. Not only did the trial court not commit plain error by permitting Sgt. Lowe and Cindy Irwin to testify concerning Appellant's confession it did not commit any error at all. Appellant has shown no miscarriage ofjustice because the trial court did not violate any Ohio laws or rules of evidence by permitting the testimony concerning Appellant's confession. Furthermore, because this issue was previously brought up and fully argued on appeal by Appellant's counsel there is no violation on the part of Appellant's counsel of any duty owed to Appellant. Proposition of Law No. II: APPELLANT COUNSEL WAS INADEQUATE FOR FAILING TO ARGUE THAT THE TRIAL COURT SHOULD HAVE GRANTED APPELLANT'S RULE 29 MOTION FOR JUDGMENT OF ACQUITTAL. THE STATE FAILED TO PROVE THAT APPELLANT COMMITTED THE CRIMES CHARGED BEYOND A REASONABLE DOUBT. Prior counsel for Appellant was not inadequate for failing to argue that the trial court should have granted Appellant's Rule 29 Motion for Judgment of Acquittal. As discussed in Proposition of Law No. I, in order to succeed on a claim of ineffective assistance of counsel Appellant must show both that counsel violated an essential duty owed to Appellant and that 7
Appellant was prejudiced by such violation. The test, as set forth by this Court, for determining whether a defendant was provided effective assistance of counsel is "whether the accused, under all the circumstances...had a fair trial and substantial justice was done." See State v. Hester, 45 Ohio St. 2d 71 (1976). There is a two step test appellate courts are to use in evaluating allegations of ineffective assistance of counsel. "First, it must be determined whether there has been a substantial violation of an essential duty owed by the defense counsel to the defendant. If such violation is found, there must next be a determination as to whether the defendant was prejudiced by such a violation." See State v. Cooperrider, 4 Ohio St. 3d 226 (1983). No such violation or prejudice can be established in this case. Even if this issue had been presented on appeal, Appellant would not have been successful because the State presented sufficient evidence at the Defendant's trial to support the guilty verdict that was returned by the jury and the trial court was therefore not in error by overruling the Defendant's Criminal Rule 29 motion for acquittal. Pursuant to Criminal Rule 29, "the court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of ajudgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses." See Crim. R. 29. This Court held in State v. Krull that when reviewing a trial court's denial of a motion for acquittal under Criminal Rule 29 a reviewing court is to apply "the same test as it would in reviewing a challenge based upon the sufficiency of the evidence to support a conviction." See State v. Krull, 154 Ohio App. 3d 219 (2003) citing State v. Thompson, 127 Ohio App. 3d 511 (1998). The relevant inquiry in a sufficiency of the evidence review is whether "after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the 8
essential elements of the crime could have been proven beyond a reasonable doubt." See Id citing State v. Jenks, 61 Ohio St. 3d 259 (1991). It is the duty of an appellate court reviewing a case to determine whether sufficient evidence was presented at trial to support a criminal conviction "to examine the evidence admitted at trial to deternvne whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt." See State v. Jenks, 61 Ohio St.3d 259 (1991). As applied to this case and specifically to this issue, there was sufficient evidence presented at the Defendant's trial to support the guilty verdict returned by the jury for a single count of Rape. The jury heard the testimony of the victim's mother, Tammy Welch,; the victims grandmother, Tammy Welch O'Dell,; the victim, Ashlie Welch,; Laura Butt, an investigator from Ross County Children Services,; Dr. Luckidoo; Cindy Irwin; and Sgt. Rusty Lowe. Ms. Welch testified that she observed her daughter inserting objects into her little sisters "private parts". After observing this, Ms. Welch questioned her daughter concerning where she would have learned such behavior and Ashlie Welch disclosed to her that Appellant had touched her. The victims grandmother, Ms. O'Dell, testified that Ashlie told her that Appellant had "touched her" in the place where she pees from and that Appellant had "stuck it in her". Ashlie Welch also testified in open court conceming what Appellant had done to her. Ashlie described three separate occasions when Appellant inserted his private part into her private part. Ashlie also described where the incidents occurred, what she was wearing, and what Appellant had been wearing. Laura Butt, an investigator with Ross County Children Services, testified concerning her interview with Ashlie Welch. Ms. Butt explained numerous characteristics of young victims of 9
sexual abuse and what Ashlie had disclosed to her. Ashlie's disclosure to Ms. Butt was consistent with her testimony. Dr. Luckidoo, who examined Ashlie Welch as part of her clinic at the Ross County Child Protection Center, testified conceming her examination. During the examination, Dr. Luckidoo observed a "v" shaped area at the entrance of Ashlie's vagina which she felt could be consistent with sexual abuse. Appellant was interviewed by Cindy Irwin at BCI & I in London, Ohio. Mr. Irwin testified that Appellant initially denied all allegations concerning sexual abuse against Ashlie Welch, then Appellant claimed he could not remember, then Appellant said that he thought it was his wife because of the way that i Ashlie was touching him. Appellant then admitted to Ms: Irwin that he put his penis in Ashlie Welch's vagina "just a little way" because he is well endowed and it would not go in any further. Following this admission, Appellant requested to talk to Sgt. Lowe. Sgt. Lowe asked Appellant if he put his bare penis in Ashlie Welch's bare vagina and Appellant replied "yes". When looking at all of the evidence produced by the State at Appellant's trial it is apparent that there was sufficient evidence to support the guilty verdict retumed by the jury. Furthermore, when looking at all the testimony and evidence presented at Appellant's trial in a light most favorable to the State, any rational trier of fact could have found the essential elements of Rape and found that the victim was under the age of ten at the time of the offense. Therefore, there was sufficient evidence produced at Appellant's trial to support the guilty verdict returned by the jury and counsel for Appellant was not ineffective for not arguing this issue on appeal. 10
V. CONCLUSION For the reasons outlined above, this case is not of public or great general interest and does not involve a substantial constitutional question. Therefore, this Court does not have jurisdiction over this matter and this appeal should be denied. Respectfully submitted, KRISTINA M. ROOKER (#0073784) Assistant Prosecuting Attorney Fayette County, Ohio 110 E. Court Street Washington C.H., Ohio 43160 (740) 335-0888 phone (740) 333-3539 facsimile VI. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Memorandum in Opposition of Jurisdiction was served upon Edward Welton Jr. (526-713), Appellant pro se, at Lebanon Correctional Institution, P.O. Box 56, 3791 State Route 63, Lebanon, Ohio 45036 by ordinary U.S. Mail service on this 16'' day of October, 2008. KRISTINA M. ROOKER (#0073784) Assistant Prosecuting Attorney Fayette County, Ohio 11