[Cite as State v. Hill, 2016-Ohio-472.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Sheila G. Farmer, P.J.
Plaintiff-Appellee : Hon. W. Scott Gwin, J.
: Hon. John W. Wise, J.
-vs- :
:
TRACELLA HILL : Case No. 2015CA00074
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2014CR2026B
JUDGMENT: Affirmed
DATE OF JUDGMENT: February 9, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO GEORGE URBAN
Prosecuting Attorney 116 Cleveland Avenue, North
By: RONALD MARK CALDWELL Canton, OH 44702
110 Central Plaza South - Suite 510
Canton, OH 44702-1413
Stark County, Case No. 2015CA00074 2
Farmer, P.J.
{¶1} On December 19, 2014, the Stark County Grand Jury indicted appellant,
Tracella Hall, on one count of endangering children in violation of R.C. 2919.22(A). Said
charge arose from appellant remaining silent even though she was aware that her
husband, Vincent Hill, was sexually abusing her daughter, E.C., prior to her eighteenth
birthday. Mr. Hill was E.C.'s stepfather.
{¶2} A jury trial commenced on March 30, 2015. The jury found appellant guilty
as charged. By judgment entry filed April 13, 2015, the trial court sentenced appellant to
one hundred eighty days in jail.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶4} "APPELLANT'S RIGHT TO DUE PROCESS WAS VIOLATED BY THE
INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL."
II
{¶5} "APPELLANT'S CONVICTIONS WERE AGAINST THE MANIFEST
WEIGHT AND SUFFICIENCY OF THE EVIDENCE."
I
{¶6} Appellant claims she was denied the effective assistance of trial counsel
because her trial counsel opened the door to inflammatory and prejudicial testimony
related to Mr. Hill, the offender and appellant's husband, and acquiesced to E.C.'s
account of the sexual abuse. We disagree.
Stark County, Case No. 2015CA00074 3
{¶7} The standard this issue must be measured against is set out in State v.
Bradley, 42 Ohio St.3d 136 (1989), paragraphs two and three of the syllabus. Appellant
must establish the following:
2. Counsel's performance will not be deemed ineffective unless and
until counsel's performance is proved to have fallen below an objective
standard of reasonable representation and, in addition, prejudice arises
from counsel's performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2
O.O.3d 495, 358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674, followed.)
3. To show that a defendant has been prejudiced by counsel's
deficient performance, the defendant must prove that there exists a
reasonable probability that, were it not for counsel's errors, the result of the
trial would have been different.
{¶8} This court must accord deference to defense counsel's strategic choices
made during trial and "requires us to eliminate the distorting effect of hindsight." State v.
Post, 32 Ohio St.3d 380, 388 (1987).
{¶9} The central theme of defense counsel's trial strategy was that E.C. was over
eighteen years of age when appellant discovered that her husband was sexually abusing
her daughter; therefore, E.C. was not a minor and appellant could not have committed
the crime of endangering children. T. at 127-128, 210-211, 213-214. Defense counsel
also cast doubt on E.C.'s ability to recall dates. T. at 210, 213-214.
Stark County, Case No. 2015CA00074 4
{¶10} On direct examination, E.C. testified her stepfather sexually abused her
during the ages of sixteen to nineteen. T. at 131. She stated appellant witnessed one of
the sexual assaults by entering the bedroom with a flashlight. T. at 137-138. She was
not entirely sure how old she was when this incident happened, but testified "I do believe
I was very close to my 18th birthday." T. at 138. She agreed she was seventeen when
it happened. Id.
{¶11} On cross-examination, defense counsel questioned E.C.'s credibility
because she did not move out of the home until she was nineteen, and there was
innuendo that E.C. could have left after her eighteenth birthday. T. at 163-165. Defense
counsel pointed out that E.C. had trouble with dates and E.C. agreed (T. at 173):
Q. You said you had trouble with dates?
A. Yes.
Q. Okay. And that's why you're saying you don't remember which
day you actually left the house and which months you actually left the
house, and all this good stuff, right?
A. Yes.
{¶12} On redirect, the state asked E.C. why she did not move out at eighteen. T.
at 174. She stated "I was not permitted to leave.***They didn't want me to move." Id.
Following a sidebar, the trial court permitted the complained of testimony about Mr. Hill
threatening E.C. when she packed her bags to leave the home when she was nineteen
(T. at 175-178):
Stark County, Case No. 2015CA00074 5
Q. [E.] was there a time that you attempted to leave?
A. Yes.
Q. And were you prevented from leaving?
A. Yes.
Q. Okay. When was that?
A. I can't recall specifically.
Q. Okay. Do you recall if you were 18 or 19?
A. I was 19 years of age.
Q. Okay. And can you tell us about that?
A. I had my bags packed at my feet, ready to go. I was standing in
my kitchen. And my stepfather, Vince, was at the door screaming at me. I
told him I wanted to leave, I couldn't live there no more, I couldn't take his
abuse, and I had all rights to go. That's when he proceeded to grab a .9
millimeter handgun from his bedroom and shoot it at my feet and told me if
I would leave that both me and my fiancé, Charles, would both be dead.
Q. And was your mom present when that happened?
A. Yes, she was.
Q. And she was in the same room with you?
A. Yes, she was.
{¶13} We find this testimony only established the atmosphere of fear due to the
offender living in the home that kept E.C. from reporting the sexual abuse earlier. If
Stark County, Case No. 2015CA00074 6
anything, Mr. Hill's violent nature added sympathy to appellant's plight in her decision not
to report what she had observed.
{¶14} Appellant also argues defense counsel indirectly bolstered E.C.'s credibility
by accepting her account of the sexual abuse. The issue was what did appellant know
and when did she know it. Defense counsel questioned E.C. on what was actually
occurring in the bedroom when appellant walked in with the flashlight. T. at 167-168.
During closing argument, defense counsel argued (T. at 212):
And we've had a lot of testimony - - let's go back to the night that [E.]
says this happened, that everyone says that dad was raping her when mom
walked in. If you recall the testimony, again, allegedly he was drunk, he
took her clothes off, pushed her down on the bed, according to her, then
mom walked in, shined the flashlight, dad fell on the bed drunk. That's
hardly catching them in the act of rape if, in fact, that's what happened.
Do we even know really what happened because this is the one time
in all this time, she's saying that this happened in mom and dad's bedroom,
all the other times she talks about it happened in her room. But this one
time happens in mom and dad's bedroom. Did it really? Beyond a
reasonable doubt?
{¶15} Although defense counsel chose not to attack E.C.'s sexual abuse
allegations against her stepfather, defense counsel questioned her credibility on the issue
central to the case sub judice.
Stark County, Case No. 2015CA00074 7
{¶16} Upon review, we find no undue prejudice resulting to appellant that would
have affected the outcome of the trial.
{¶17} Assignment of Error I is denied.
II
{¶18} Appellant claims her conviction was against the sufficiency and manifest
weight of the evidence as the evidence failed to prove that E.C. was under eighteen years
of age at the time of the offense. We disagree.
{¶19} On review for sufficiency, a reviewing court is to examine the evidence at
trial to determine whether such evidence, if believed, would support a conviction. State
v. Jenks, 61 Ohio St.3d 259 (1991). "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." Jenks at
paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307 (1979). 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 witnesses and
determine "whether in resolving conflicts in the evidence, the jury clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed and
a new trial ordered." State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). See also,
State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52. The granting of a new trial "should
be exercised only in the exceptional case in which the evidence weighs heavily against
the conviction." Martin at 175. We note the weight to be given to the evidence and the
credibility of the witnesses are issues for the trier of fact. State v. Jamison, 49 Ohio St.3d
182 (1990). The trier of fact "has the best opportunity to view the demeanor, attitude, and
Stark County, Case No. 2015CA00074 8
credibility of each witness, something that does not translate well on the written page."
Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-260.
{¶20} Appellant was convicted of endangering children in violation of R.C.
2919.22(A) which states the following in pertinent part:
No person, who is the parent, guardian, custodian, person having
custody or control, or person in loco parentis of a child under eighteen years
of age or a mentally or physically handicapped child under twenty-one years
of age, shall create a substantial risk to the health or safety of the child, by
violating a duty of care, protection, or support.
{¶21} E.C. testified her stepfather sexually abused her from the time she was
sixteen to nineteen years of age. T. at 131. E.C. testified appellant witnessed one of the
sexual assaults (T. at 137-138):
Q. [E.], at any point when these things were happening to you, did
anybody see what was going on?
A. Yes. My mother was a witness - -
Q. Okay.
A. - - to one of the assaults, with a flashlight.
Q. Okay. And do you remember anything about that night?
A. Yes, I do. Vince was very intoxicated. The smell of whiskey and
beer was overpowering on his breath. He took me into his bedroom by the
Stark County, Case No. 2015CA00074 9
hand and forced me to the bed and ripped - - ripped off my clothes. A few
moments later, my mother entered the doorway with a flashlight and shined
it on the both of us.
Q. Okay.
A. She asked him what he was doing. He was so incanherent - -
incoherent, he just rolled over and flopped onto the bed. My mother asked
me to leave. I sat in my bathtub and I cried.
Q. How old were you when that happened?
A. I do - - I'm not entirely sure, but I do believe I was very close to my
18th birthday.
Q. Okay. So you were 17 when that happened?
A. Yes.
{¶22} The next morning, appellant, E.C., and Mr. Hill had a discussion about the
incident, "[w]e were supposed to deal with it right then and there." T. at 139. Appellant
"wanted to discuss this as a family matter." Id. Appellant made Mr. Hill promise he would
never do it again and although he promised, "[h]e did not hold to that promise." Id. It
happened again, before E.C. turned eighteen. T. at 153. When questioned as to whether
she asked appellant to call the police, E.C. explained: "She told me it wasn't necessary,
she would deal with it. She would do whatever she could to protect me." T. at 139-140.
E.C. wanted to leave the home, but appellant would not permit her to leave. T. at 140.
On cross-examination, defense counsel questioned E.C. as to why she did not leave the
Stark County, Case No. 2015CA00074 10
home after her eighteenth birthday, and pointed out that E.C. had trouble with dates. T.
at 163-165, 173.
{¶23} Crystal Cricks, E.C.'s stepsister and Mr. Hill's daughter, testified appellant
told her "she had walked into my father raping [E.]." T. at 188. Appellant told her she did
not call the police because "it was a family problem and it would be held inside the
household and they would deal with it as a family." Id.
{¶24} When questioned by the police, appellant denied any knowledge of her
husband sexually abusing her daughter or walking in and witnessing anything. T. at 193.
{¶25} The jury had the opportunity to observe the demeanor and to test the
credibility of E.C. on the issue of her age at the time appellant observed the sexual abuse
of E.C. by Mr. Hill. E.C. testified she was seventeen at the time and additional incidents
of sexual abuse occurred before she turned eighteen. T. at 138, 153.
{¶26} Upon review, we find the jury was presented with substantial credible
evidence regarding appellant's observation of her husband's sexual abuse of her
daughter prior to her eighteenth birthday, supporting a finding of guilty on the endangering
children charge. We do not find any manifest miscarriage of justice.
{¶27} Assignment of Error II is denied.
Stark County, Case No. 2015CA00074 11
{¶28} The judgment of the Court of Common Pleas of Stark County, Ohio is
hereby affirmed.
By Farmer, P.J.
Gwin, J. and
Wise, J. concur.
SGF/sg 115