The opinion
[Cite as State v. Winston, 2025-Ohio-1727.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 113318
v. :
ROBERT WINSTON, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: APPLICATION DENIED
RELEASED AND JOURNALIZED: May 12, 2025
Cuyahoga County Court of Common Pleas
Case No. CR-22-673461-A
Application for Reopening
Motion No. 579752
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Kristen Hatcher, Assistant Prosecuting
Attorney, for appellee.
Robert Winston, pro se.
LISA B. FORBES, P.J.:
Robert Winston has filed a timely App.R. 26(B) application for
reopening. Winston is attempting to reopen the appellate judgment, rendered in
State v. Winston, 2024-Ohio-4583 (8th Dist.), which affirmed his conviction and
sentence of incarceration for the offenses of two counts of rape of a victim under the
age of ten (R.C. 2907.02(A)(1)(b)), one count of gross sexual imposition
(R.C. 2907.05(A)(4)), one count of kidnapping (R.C. 2905.01(A)(4)), one count of
importuning (R.C. 2907.07(A)), and one count of attempted gross sexual imposition
(R.C. 2923.02 and 2907.05(A)(4)). For the reasons set forth below, we decline to
reopen Winston’s appeal.
I. Standard of Review Applicable to App.R. 26(B)
A. Application for Reopening
App.R. 26(B) provides a means of asserting claims of ineffective
assistance of appellate counsel. App.R. 26(B) provides for a two-stage process where
an appellant must first make a threshold showing that appellate counsel was
ineffective on appeal. State v. Leyh, 2022-Ohio-292, ¶ 18-19. The ineffectiveness of
appellate counsel is judged using the same standard that applies to claims of
ineffective assistance of trial counsel announced in Strickland v. Washington, 466
U.S. 668 (1984). Under this standard, “an applicant must show that (1) appellate
counsel’s performance was objectively unreasonable, . . . and (2) there is ‘a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.’” Leyh at ¶ 18, quoting Strickland at 687. If
the applicant makes these showings, then the application shall be granted and the
appeal reopened. Id. at ¶ 21, citing App.R. 26(B)(5). “The burden is on the applicant
to demonstrate a ‘genuine issue’ as to whether there is a ‘colorable claim’ of
ineffective assistance of appellate counsel.” Id. at ¶ 21, quoting State v. Spivey, 84
Ohio St.3d 24, 25 (1998).
Moreover, even if Winston establishes that an error by his appellate
counsel was professionally unreasonable, he must establish that he was prejudiced;
but for the unreasonable error there exists a reasonable probability that the results
of his appeal would have been different. Reasonable probability, regarding an
application for reopening, is defined as a probability sufficient to undermine
confidence in the outcome of the appeal. State v. May, 2012-Ohio-5504 (8th Dist.).
II. First Proposed Assignment of Error — Rape by Digital Penetration
Unsupported by Sufficient Evidence
Winston, through his initial proposed assignment of error, argues
that his appellate counsel was ineffective for failing to argue that his convictions for
rape, based upon digital penetration, were unsupported by sufficient evidence.
Specifically, Winston argues that “to support a conviction for rape in the form of
digital penetration [under R.C. 2907.02(A)(1)(b)], it must be found beyond a
reasonable doubt that the defendant penetrated the victim’s vagina; a mere parting
of the labia is not sufficient.”
On the outset, the law of the Eighth District Court of Appeals does not
support Winston’s argument that proof of actual penetration of the vagina is
required to support the offense of rape.
This court, as well as other appellate districts, has consistently held that
evidence of slight penetration, entering the vulva or labia, is sufficient
to support a rape conviction. State v. Bouyer, 8th Dist. Cuyahoga
No. 112045, 2023-Ohio-4793; State v. Blankenship, 8th Dist.
Cuyahoga No. 77900, 2001 Ohio App. LEXIS 5520 (Dec. 13, 2001);
State v. Nivens, 10th Dist. Franklin No. 95 APA09-1236, 1996 Ohio
App. LEXIS 2245 (May 28, 1996); State v. Carpenter, 60 Ohio App.3d
104, 105, 573 N.E.2d 1206 (5th Dist.1989).
State v. Baldwin, 2024-Ohio-6177, ¶ 7 (8th Dist.).
Moreover, Wilson’s appellate counsel did argue manifest weight of
the evidence in his direct appeal and this court affirmed his convictions. Winston,
2024-Ohio-4583, at ¶ 38-49. While sufficiency and manifest weight of the evidence
involve different concepts of law, manifest weight subsumes sufficiency. State v.
Murphy, 2012-Ohio-1186 (8th Dist.). That is, a finding that a conviction is
supported by the manifest weight of the evidence necessarily includes a finding that
the conviction was supported by sufficient evidence. Id. A finding that a conviction
is supported by the manifest weight of the evidence will dispose of the issue of
sufficiency. State v. Bell, 2019-Ohio-340 (8th Dist.); State v. Jackson, 2015-Ohio-
1946 (8th Dist.). See also State v. Miller, 2025-Ohio-197 (2d Dist.); State v.
Wilborn, 2024-Ohio-5003 (8th Dist.); State v. Poole, 2019-Ohio-3366 (8th Dist.);
In re G.H., 2015-Ohio-5339 (11th Dist.).
As discussed in this court’s opinion addressing Winston’s manifest-
weight assignment of error on direct appeal, evidence presented at trial
demonstrated that Winston, with either his fingers or tongue, digitally penetrated
the victim’s vulva or labia, however, slight. Sufficient evidence was adduced at trial
to support Winston’s convictions for the offenses of rape of a victim under the age
of ten. See Bouyer; State v. Falkenstein, 2004-Ohio-2561 (8th Dist.).
Accordingly, no prejudice befell Winston by appellate counsel’s
failure to raise the issue of sufficiency of the evidence on appeal. Murphy. We find
this argument on ineffective assistance of appellate counsel unpersuasive.
III. Second Proposed Assignment of Error — Trial Court’s Finding of
Sexually Violent Predator Unsupported by Sufficient Evidence
In his second proposed assignment of error in support of the
application for reopening, Winston argues that insufficient evidence was adduced at
trial to support the trial court’s finding that he is a sexually violent predator.
According to Winston, appellate counsel’s failure to raise this issue amounted to
ineffective assistance of counsel.
R.C. 2971.01(H)(1) defines a sexually violent predator as a “person
who, on or after January 1, 1997, commits a sexually violent offense and is likely to
engage in the future in one or more sexually violent offenses.” R.C. 2971.01(H)(2)
sets forth the factors that a trial court may consider when determining whether a
defendant is a sexually violent predator.
(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; . . . .
(b) The person has a documented history from childhood, into the
juvenile developmental 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.
The record reveals that the trial court was presented with testimony
and exhibits specifically on the issue of whether Winston qualified as a sexually
violent predator. The evidence included: (1) documentation from Winston’s youth,
including records from the Division of Children and Family Services, that Winston
exhibited sexually deviant behavior; (2) a letter, signed by Winston, in which he
admitted to the sexual abuse of his niece and nephew; (3) evidence that established
a pattern of abusing the victim that included numerous sexual abuses; and (4)
evidence that Winston had a history of abusing young children. Sufficient evidence
was adduced at trial to support the trial court’s finding that Winston is a sexually
violent predator. State v. Belle, 2019-Ohio-787 (8th Dist.); State v. A.M., 2018-
Ohio-4209 (8th Dist.); State v. Campbell, 2018-Ohio-1639 (8th Dist.).
Under these circumstances, we find that Winston has failed to
establish that he was prejudiced when appellate counsel did not challenge the
sufficiency of evidence as set forth in his second proposed assignment of error.
IV. Third and Fourth Proposed Assignments of Error — Imposition of
Life in Prison Without the Possibility of Parole
Winston, through his third and fourth proposed assignments of error,
argues that appellate counsel failed to argue that the sentence imposed by the trial
court, life in prison without the possibility of parole with regard to the offenses of
rape with sexually-violent-predator specifications, constituted error that requires
resentencing. R.C. 2971.03(A)(2), which deals with the sentence to be imposed
upon a defendant convicted of a sexually-violent-predator specification, provides:
Except as provided in division (A)(5) of this section, if the offense for
which the sentence is being imposed is murder; or if the offense is rape
committed in violation of division (A)(1)(b) of section 2907.02 of the
Revised Code when the offender purposely compelled the victim to
submit by force or threat of force, when the victim was less than ten
years of age, when the offender previously has been convicted of or
pleaded guilty to either rape committed in violation of that division or
a violation of an existing or former law of this state, another state, or
the United States that is substantially similar to division (A)(1)(b) of
section 2907.02 of the Revised Code, or when the offender during or
immediately after the commission of the rape caused serious physical
harm to the victim; or if the offense is an offense other than aggravated
murder or murder for which a term of life imprisonment may be
imposed, it shall impose upon the offender a term of life imprisonment
without parole.
(Emphasis added.)
Winston was convicted of rape of a child under the age of ten with a
sexually-violent-predator specification. Pursuant to R.C. 2907.02(A)(1)(b) and
2971.03(A)(2), the trial court was required to impose a term of life imprisonment
without the possibility of parole. State v. Roberts, 2013-Ohio-1089 (6th Dist.)
(sentence of life in prison under R.C. 2971.03(A)(2) was not clearly contrary to law).
Accordingly, appellate counsel was not required to argue that the sentence of life
imprisonment without the possibility of parole constituted error on the part of the
trial court. Moreover, Winston was not prejudiced by the conduct of appellate
counsel when he did not challenge the mandatory sentence.
Application for reopening is denied.
___________________________
LISA B. FORBES, PRESIDING JUDGE
MICHAEL JOHN RYAN, J., and
DEENA R. CALABRESE, J., CONCUR