STATE OF OHIO -vs- CHARLES TERRELL ANTHONY

Canton, Ohio - Criminal defense attorney represented Charles Terrell Anthony with two counts of rape and two counts of gross sexual imposition charges.

The following evidence is adduced from the record of appellant's jury trial.

Appellee's evidence

{¶3} Jane and Mary Doe are sisters; at the time of trial, Jane Doe was age 16

and Mary Doe was age 19. The sisters presently live with their mother ("Mother”) and

younger siblings in Stark County, but when they were younger the family moved around

a lot. For a time when the girls were in elementary school, they lived with their greatgrandmother ("Great-Grandmother”) in the Bexley Townhomes in Plain Township, Ohio.

Mother lived elsewhere during this time, but the girls remained in Plain Township so they

could attend Plain schools.

{¶4} Appellant is the son of Great-Grandmother and the uncle of Mother. He is

therefore the great uncle of Jane and Mary. While the girls lived with Great-Grandmother,

appellant visited regularly.

{¶5} The townhome Great-Grandmother lived in had a full basement consisting

of a main area, laundry room, and half-bathroom.

{¶6} In the spring of 2019, Jane Doe disclosed to a friend that appellant sexually

abused her when she was a child and living with Great-Grandmother. The friend advised

Jane to seek therapy to deal with her feelings surrounding the disclosure. Jane began to

see a therapist and told the therapist about the sexual abuse. The therapist, a mandatory [Cite as State v. Anthony, 2021-Ohio-1755.]

reporter of child abuse, called the Children's Network hotline in Stark County and reported

Jane's allegations.

{¶7} A joint investigation was initiated between a social worker from Children's

Services, Deputy Von Spiegel of the Stark County Sheriff's Department, and a pediatric

nurse practitioner from the Stark County CARE Center.

{¶8} Jane Doe disclosed that when she was in kindergarten or first grade, and

less than 10 years old, she came home from school and needed to use the bathroom.

She ran downstairs to use the basement bathroom, and when she attempted to exit the

room, appellant stopped her and said she wasn't allowed to leave until she touched his

penis. Appellant was clothed but his pants were down. Appellant made Jane touch his

penis with her hands and placed his penis in her mouth.

{¶9} This was the only incident of sexual abuse Jane recalled, although she

remembers that appellant was always "touchy” and made her uncomfortable. She

disclosed the abuse to her therapist because she was angry at herself that she couldn't

do anything to stop it, and eventually understood she was a child and not at fault.

{¶10} Jane's disclosure to the therapist resulted in Children's Services visiting

Mother and advising her of the allegations. During the ensuing investigation, Mother and

Deputy Von Spiegel asked Mary Doe if anything occurred with appellant. Mary Doe

testified that she felt she could disclose now, too, because her younger sister did so first,

and her sister was not alone.

{¶11} Mary disclosed that when she was around eight years old and in

approximately fourth grade, she recalled appellant making Mary and Jane watch him in

the basement while he masturbated to climax. Once, appellant pulled down Mary's pants [Cite as State v. Anthony, 2021-Ohio-1755.]

and put his mouth on her vagina. Finally, Mary recalled an incident which occurred in the

living room, when appellant told her he had candy in his pocket. Mary reached into his

pocket and there was no candy; appellant had a hole in his pocket and made her touch

his penis.

{¶12} Mary was over the age of 18 when she disclosed the abuse so the

Children's Services portion of the investigation did not include her; the forensic interview

and medical examination were utilized for Jane because she was a minor. Both sisters

disclosed the abuse to the investigating social worker, and Jane disclosed the abuse to

the nurse practitioner who examined her.

{¶13} Deputy Von Spiegel investigated the allegations and contacted appellant to

ask for his side of the story. Appellant avoided Von Spiegel and left voice messages for

the deputy claiming the deputy couldn't call back because appellant didn't know his own

cell phone number.

Defense case

{¶14} Appellant called one defense witness, his sister ("Sister”). Sister testified

that Great Grandmother is now 90 years old and is not in a position to testify. Sister

testified that Great Grandmother lived in the Bexley Townhomes between 2008 and 2011,

and during that time Mother and the sisters lived in Georgia because the extended family

visited them there. Sister never saw any conduct between appellant and the children that

she found to be alarming.

Secret indictment, trial, conviction, and sentencing

{¶15} Appellant was charged by secret indictment with two counts of rape

pursuant to R.C. 2907.02(A)(1)(b)(B), both felonies of the first degree [Counts I and II], [Cite as State v. Anthony, 2021-Ohio-1755.]

and two counts of gross sexual imposition pursuant to R.C. 2907.05(A)(4)(C)(2), both

felonies of the third degree [Counts III and IV]. Counts I and III related to Jane Doe;

Counts II and IV related to Mary Doe. Appellant entered pleas of not guilty and the matter

proceeded to trial by jury. Appellant was found guilty as charged upon counts II, III, and

IV, and the jury further found that the victims were under the age of 13. Appellant was

found not guilty upon Count I.

{¶16} The trial court sentenced appellant to an aggregate prison term of 20 years

to life.

{¶17} Appellant now appeals from the judgment entry of his convictions and

sentence.

{¶18} Appellant raises three assignments of error:

ASSIGNMENTS OF ERROR

{¶19} I. APPELLANT'S CONVICTIONS WERE AGAINST THE MANIFEST

WEIGHT AND SUFFICIENCY OF THE EVIDENCE.”

{¶20} "II. THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO

SUSTAIN A CONVICTION AGAINST THE APPELLANT FOR THE OFFENSE OF RAPE,

A VIOLATION OF [R.C.] 2907.02.”

{¶21} "III. THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF

COUNSEL IN VIOLATION OF HIS RIGHTS UNDER THE 6TH AND 14TH

AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION

10 OF THE OHIO CONSTITUTION.” [Cite as State v. Anthony, 2021-Ohio-1755.]

ANALYSIS

I., II.

{¶22} Appellant's first and second assignments of error are related and will be

considered together. Appellant argues his conviction upon one count of rape of Mary

Doe is not supported by sufficient evidence and is against the manifest weight of the

evidence.1 We disagree.

{¶23} The legal concepts of sufficiency of the evidence and weight of the evidence

are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380,

1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review

for a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio

St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio

Supreme Court held, "An appellate court's function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at trial to

determine whether such evidence, if believed, would convince the average mind of the

defendant's guilt beyond a reasonable doubt. 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.”

{¶24} In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the "thirteenth juror,” and after "reviewing the

entire record, weighs the evidence and all reasonable inferences, considers the credibility

of witnesses and determines 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

1 Appellant was found not guilty upon Count I, rape of Jane Doe. Appellant does not challenge

his convictions upon Counts III and IV, G.S.I. against Jane and Mary Doe. [Cite as State v. Anthony, 2021-Ohio-1755.]

be overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387.

Reversing a conviction as being against the manifest weight of the evidence and ordering

a new trial should be reserved for only the "exceptional case in which the evidence weighs

heavily against the conviction.” Id.

{¶25} Appellant was found guilty upon one count of rape of Mary Doe pursuant to

R.C. 2907.02(A)(1)(b)(B), a felony of the first degree. The jury further made a special

finding that Mary Doe was under the age of 13 at the time of the offense. R.C.

2907.02(A)(1)(b) states, "No person shall engage in sexual conduct with another * * *

when any of the following applies: [t]he other person is less than thirteen years of age,

whether or not the offender knows the age of the other person.” R.C. 2907.01(A) defines

"sexual conduct” in pertinent part as * * * 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.”

{¶26} As acknowledged by appellant in his brief, Mary Doe testified appellant

placed his mouth "on” her vagina. Brief, 6-11. Specifically, appellant argues the evidence

appellant placed his mouth "on” the victim's vagina is insufficient to establish the element

of sexual conduct. Appellant implies there must be some insertion or penetration to

accomplish rape by means of cunnilingus. We note, however, that intercourse by means

of penetration, cunnilingus, and intercourse each constitute "sexual conduct” in the

disjunctive. In other words, "cunnilingus” does not include elements of insertion or

penetration. [Cite as State v. Anthony, 2021-Ohio-1755.]

{¶27} We thus find the act described by the victim sufficiently describes an act of

forcible cunnilingus. State v. Nian, 5th Dist. Delaware No. 15CAA070052, 2016-Ohio5146, ¶ 29 [victim testified appellant held her thighs and "placed his mouth on her

vagina”], citing State v. Dippel, 10th Dist. Franklin No. 03AP–448, 2004–Ohio–4649

[psychological and physical force applied when adult "engaged in cunnilingus” with child

victim]. It is well-established that the weight of the evidence and the credibility of the

witnesses are determined by the trier of fact. State v. Yarbrough, 95 Ohio St.3d 227, 231,

2002-Ohio-2126, 767 N.E.2d 216. We are mindful, moreover, that "[c]orroboration of

victim testimony in rape cases is not required.” State v. Meeks, 5th Dist. No.

2014CA00017, 2015-Ohio-1527, 34 N.E.3d 382, ¶ 81, appeal not allowed, 143 Ohio St.3d

1543, 2015-Ohio-4633, 40 N.E.3d 1180, citing State v. Cuthbert, 5th Dist. Delaware No.

11CAA070065, 2012-Ohio-4472, 2012 WL 4474720, ¶ 28 and State v. Johnson, 112 Ohio

St.3d 210–217, 2006-Ohio-6404, 858 N.E.2d 1144, at ¶ 53. Appellant's conviction upon

one count of rape is supported by sufficient evidence, i.e. the testimony of Mary Doe that

appellant placed his mouth "on” her vagina.

{¶28} We find that this is not an "'exceptional case in which the evidence weighs

heavily against the conviction.'” Thompkins, 78 Ohio St.3d at 387, quoting Martin, 20 Ohio

App.3d at 175. The jury neither lost its way nor created a miscarriage of justice in

convicting appellant upon one count of rape, and appellee presented evidence of his guilt

beyond a reasonable doubt. Appellant's first and second assignments of error are

overruled. [Cite as State v. Anthony, 2021-Ohio-1755.]

III.

{¶29} In his third assignment of error, appellant argues he received ineffective

assistance of defense trial counsel. We disagree.

{¶30} To succeed on a claim of ineffectiveness, a defendant must satisfy a twoprong test. Initially, a defendant must show that trial counsel acted incompetently. See,

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing such claims,

"a court must indulge a strong presumption that counsel's conduct falls within the wide

range of reasonable professional assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the challenged action 'might be considered

sound trial strategy.'” Id. at 689, citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158

(1955).

{¶31} "There are countless ways to provide effective assistance in any given case.

Even the best criminal defense attorneys would not defend a particular client in the same

way.” Strickland, 466 U.S. at 689. The question is whether counsel acted "outside the

wide range of professionally competent assistance.” Id. at 690.

{¶32} Even if a defendant shows that counsel was incompetent, the defendant

must then satisfy the second prong of the Strickland test. Under this "actual prejudice”

prong, the defendant must show that "there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694.

{¶33} Appellant alleges he received ineffective assistance of defense trial counsel

in several instances, and we will examine each in turn. [Cite as State v. Anthony, 2021-Ohio-1755.]

{¶34} The first three instances of alleged ineffective assistance are similar, and

appellant alleges defense trial counsel failed to object to inadmissible hearsay testimony.

Mother testified she learned of the sexual abuse allegations when Jane Doe disclosed to

a counselor; a social worker testified that Jane Doe described the sexual abuse to her in

two interviews; and Deputy Von Spiegel testified Jane Doe told him she thought

something happened to her sister. Appellant argues the cited testimony was

inadmissible, objectionable hearsay offered for the truth of the matter asserted. We

disagree. In the context of each witness' testimony, the fact that Jane Doe disclosed the

abuse to each witness explains why the witness took certain actions afterward, such as

the next steps in the investigation.

{¶35} A statement is not hearsay when offered for a purpose other than to prove

the truth of the matter asserted. State v. Moore, 5th Dist. Coshocton No. 14CA0028, 2016-

Ohio-828, ¶¶ 74, citing State v. Davis, 62 Ohio St.3d 326, 343, 581 N.E.2d 1362 (1991).

Testimony about the disclosures by Jane Doe to the other witnesses was necessary to

explain why those witnesses took certain actions. The statements are akin to a police

officer's testimony explaining the steps taken in an investigation. Moore, supra, 2016-

Ohio-828 at ¶ 75, citing State v. Tanner, 5th Dist. Muskingum No. CT2003–0005, 2003–

Ohio–6866, ¶ 12 [officer's testimony regarding what he was told by a witness was not

offered to prove the truth of the matter asserted and explained the steps taken in the

officer's investigation, especially when the witness herself testified and her testimony was

the same]; State v. Bound, 5th Dist. Guernsey No. 03 CA 21, 2004–Ohio–6530, ¶ 34

[information officer discovered as a result of his conversation with witness was merely

part of his criminal investigation and not hearsay]. [Cite as State v. Anthony, 2021-Ohio-1755.]

{¶36} We therefore conclude that defense trial counsel did not err in failing to

object to the cited non-hearsay testimony.

{¶37} Next, appellant argues defense trial counsel should have objected to the

social worker's testimony that the sexual abuse was "substantiated.” Appellee asked the

social worker whether she is required to close each case with a disposition, and the social

worker responded in the affirmative. When asked the disposition of this case, the social

worker said "substantiated” and explained the disposition was premised upon multiple

similar disclosures to professionals, the medical diagnosis of the nurse practitioner, and

the corroboration of each sister that the other was abused. Appellant argues defense trial

counsel should have objected to the cited testimony as inadmissible hearsay, but we

again find the testimony is not hearsay. Hearsay is a statement, other than one made by

the declarant while testifying at the trial or hearing, offered into evidence to prove the truth

of the matter asserted. Evid.R. 801(C). In this instance, the evidence is the social

worker's conclusion reached in her own investigation.

{¶38} The admission of unfavorable evidence at trial does not establish ineffective

assistance of counsel. All evidence is prejudicial to the opposing party in the sense that

all evidence is unfavorable to the party against whom it is introduced. State v. Kilbarger,

5th Dist. Fairfield No. 13-CA-64, 2014-Ohio-4949, ¶ 39. Defense trial counsel may have

sought not to draw further attention to the unfavorable outcome of the Children's Services

investigation, and upon cross-examination focused upon deficiencies in the investigation.

We recognize tactical decisions, such as whether and when to object, ordinarily do not

give rise to a claim for ineffective assistance. State v. Miner, 2020-Ohio-5600, 164 N.E.3d

512, ¶ 24 (5th Dist.), citing State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, 858 [Cite as State v. Anthony, 2021-Ohio-1755.]

N.E.2d 1144, ¶ 139–140. Thus, "[t]he failure to object to error, alone, is not enough to

sustain a claim of ineffective assistance of counsel.” State v. Holloway, 38 Ohio St.3d

239, 244, 527 N.E.2d 831 (1988).

{¶39} Appellant next argues counsel was ineffective in failing to object to Von

Spiegel's testimony that he called appellant several times and left business cards for him,

asserting this was improper commentary on appellant's right to remain silent. The Ohio

Supreme Court has held "that use of a defendant's pre-arrest silence as substantive

evidence of guilt violates the Fifth Amendment privilege against self-incrimination.” State

v. Shaffer, 5th Dist. Richland No. 2003-CA-0108, 2004-Ohio-3717, ¶ 19, citing State v.

Leach, 102 Ohio St.3d 135, 807 N.E.2d 335, 2004–Ohio–2147 (2004). We find there was

no such motive involved in eliciting the cited testimony. Defense trial counsel argued the

investigation of the sisters' allegations was insufficient because no one got appellant's

side of the story or attempted to speak to other family members. Defense trial counsel

built upon the cited testimony by Von Spiegel to show that he should have made a

stronger effort to speak to appellant, and elicited from Von Spiegel upon crossexamination that it was not uncommon for an alleged perpetrator not to speak to him and

appellant was entitled not to do so. T. 147-148.

{¶40} Finally, appellant cites Mary Doe's testimony that appellant made Mary and

Jane watch while he masturbated, arguing this was irrelevant evidence of unindicted bad

acts which trial counsel should have objected to. We find that even if counsel erred in

failing to object to the testimony, there is no reasonable probability that, but for the failure

to object, appellant would have been acquitted. Strickland, 466 U.S. at 694.

{¶41} Appellant's third assignment of error is overruled.

Appellant’s three assignments of error are overruled and the judgment of the Stark County Court of Common Pleas is affirmed.