The opinion
[Cite as State v. Haynik, 2023-Ohio-717.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 111769
v. :
LARRY HAYNIK, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 9, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-20-648064-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Adrienne E. Linnick and Chauncey Keller,
Assistant Prosecuting Attorneys, for appellee.
Patituce & Associates, LLC and Catherine Meehan, for
appellant.
MICHELLE J. SHEEHAN, J.:
Defendant-appellant Larry Haynik was found guilty of rape after a
bench trial. On appeal, he challenges the sufficiency of the evidence presented by
the state to prove his guilt and also argues his conviction is against the manifest
weight of the evidence. In addition, he claims the state improperly introduced
expert testimony from a police officer who investigated the rape case. After a careful
review of the record and applicable law, we find no merit to Haynik’s claims and
affirm the trial court’s judgment.
Haynik and the victim, A.S., had a tumultuous, off-and-on
relationship. On October 28, 2019, A.S. and a friend spent time together drinking
and working on an art project at A.S.’s new apartment, which she recently moved
into after leaving the residence she and Haynik shared. During the evening, Haynik
repeatedly called and texted A.S. and A.S. eventually gave him her new address.
When Haynik appeared at her apartment later that night, A.S.’s friend let him in
with A.S.’s permission. While her friend was asleep in the living room, A.S. and
Haynik were talking in her bedroom. The conversation turned into an argument,
and as A.S. testified at trial, Haynik raped her and then damaged property in her
apartment before leaving. The next morning, A.S. went to her ex-husband’s home
and told him about the incident and they went to the hospital for a rape kit to be
collected. A.S. also filed a police report. Haynik claimed in a statement to the police
that they engaged in consensual sex twice that evening.
Haynik was subsequently indicted for one count of rape in violation
of R.C. 2907.02(A)(2), a felony of the first degree. He waived his right to a jury trial,
and the rape case was tried to the bench.
Trial Testimony
A.S.’s friend Rhonda M., A.S. herself, her former husband Lonnie S.,
the SANE nurse who examined her at the hospital, and two police officers from the
Westlake Police Department testified for the state.
a. A.S.’s Friend
A.S.’s friend, Rhonda, testified that on the night of the incident, A.S.
invited her to celebrate her breakup from her relationship with Haynik, a new
beginning for her life, and her new apartment in Westlake. Rhonda brought art
supplies and alcohol to the apartment, and they planned to work on an art project
together while consuming alcohol. Later in the evening, they went to a
neighborhood bar and consumed additional alcohol. Throughout the evening, A.S.
received phone calls and text messages from Haynik. She recalled that when they
were back at A.S.’s apartment, she heard a knock at the door and A.S. told her to let
the individual at the door in. She did not know who it was, and after letting him in,
she quickly went to sleep on the floor in the living room.
Rhonda woke up early in the morning because she was sore from
sleeping on the floor and was anxious to go home to sleep on her own bed. She
remembered A.S. helped carry her belongings to her car, but not much else. She did
not remember seeing anyone else in the apartment. Later in the day, she and A.S.
talked over the phone and she found out about the incident. She testified that “I felt
bad, because I was there and I didn’t help her.” She subsequently was interviewed
by the police and provided a statement, stating that she did not hear or see anything
during the night.
b. A.S.
A.S. testified at length about her tumultuous, “on-again, off-again”
relationship with Haynik over the course of two years. She met Haynik in 2017 at
her niece’s wedding. The relationship began as a “one-night stand,” and within a
few months, he moved into her apartment. She stated that “[w]hen things were good
with Larry Haynik, they were amazing. When they weren’t, when he wasn’t happy,
nobody was happy.” She described him as “controlling” and their relationship as
“violent” and filled with drugs and alcohol.
Haynik would call her obsessively — sometimes five, ten, or 20 times
a day — to check on her or to berate her for not doing what he wanted her to do.
When he got upset, he would become abusive, such as pouring alcohol over her head,
spitting on her, and calling her a slut, whore, or bitch. A.S. recounted an incident in
2018 where he became angry because she wanted to go to an event at Edgewater
Park by herself. He threw a fit and, while she was gone, bleached every piece of her
clothing. He also used a knife to carve a word, either “whore” or “slut,” into her
dining room table. She reported the incident to the police. She recalled another
incident where Haynik screamed at her and spit in her face when she told him she
was going to stay with a friend who is gay.
A.S. asked Haynik to move out but he refused, so she moved out and
stayed with her ex-husband. During this time, Haynik would call her ten, 20, or 30
times daily, playing love songs in the background. She eventually gave in and moved
back in with him. She left again, however, and this time she had to call the police
for assistance because Haynik would not let her collect her belongings. A week after
she left, he resumed calling her and playing love songs over the telephone and
promised her that their relationship would get better. After several weeks, she
moved back in with him again.
Over the following four months, she felt like she was walking on
eggshells whenever Haynik did not get his way. They fought physically one day at
the end of summer of 2019. She was cleaning her vehicle and did not answer a phone
call from him. When he came home, she called him “a little bitch” and he hit her.
She hit him back but, as she testified, “the man’s got a hundred pounds on me, so
[she] was on the ground being hit.” Two weeks later, she left him again. She waited
until he went to work and, with a neighbor’s help, packed up as much of her
belongings as possible and went to stay with her ex-husband.
A.S. subsequently moved into an apartment in Westlake. She and
Haynik continued to argue about their relationship by phone calls and text
messages. Several weeks before the incident at issue, she took care of his dog when
he was out of town. When he returned, they had dinner together and engaged in
consensual sex.
On the night of the incident, she was spending time with her friend
Rhonda in her new apartment, doing an art project and drinking. Around nine or
ten p.m., A.S. and Rhonda went to a bar next to her apartment. During the entire
evening, Haynik was constantly calling and sending text messages to her. She
ignored most of them. While at the bar, however, she texted him the address of her
new apartment; as she testified, he kept asking where she was and she thought that
he wanted to know out of concern for her safety because she had been drinking. On
cross-examination, she admitted that Haynik would show up if he knew where she
was, because “that’s just what he does.”
A.S. and Rhonda stayed at the bar until it closed at one a.m. Back at
her apartment, she opened another alcoholic beverage to drink. She admitted she
had consumed more than ten alcoholic beverages by this time. There was a knock
at the door. Rhonda opened the door, and Haynik was there. A.S. gave Rhonda
permission to let Haynik in. Afterward, Rhonda laid on the floor and quickly fell
asleep. A.S. and Haynik then went to her bedroom to talk about their relationship.
He wanted her to come back to live with him. She told him she was with someone
else now, and he must stop pursuing her. As she testified:
And then I’m standing in front of him and he kind of reaches out his
arm and says, “I’m gonna to make love to my woman.” And I have a
onesie on, pajama set onesie, and it rips. And I say, “No, no, you’re
not.” And then he has sex with me. * * * I mean that he put me on my
back and he had sex with me, penetrated. I don’t yell “Help.” I don’t
say “No.” I don’t stop it. I let it run its course, because I just want him
to leave, and I think he’s gonna leave after this.
On cross-examination, A.S. added that after Haynik said he wanted
to “make love to his woman,” she said “no” and pulled way and that was when the
zipper broke.1
After the sexual act, Haynik did not leave immediately. He continued
to talk to A.S., and when he got angry with her again, he put burn holes in the carpet
with his cigarettes and stabbed her air mattress with a knife. He also held her down
1 Regarding whether A.S. said “no,” on cross-examination, the defense questioned
A.S. on her medical records, in which the SANE nurse wrote that A.S. told her she did not
say “no.” The transcript reflects the following testimony by A.S.:
DEFENSE ATTORNEY: Can you read [the medical records] and tell me if
that refreshes your memory?
A.S.: “Patient in for complaint of sexual assault by ex-boyfriend last night.
* * * Patient states she went to her ex-best friend’s house and to his bedroom
where they had sex. She just laid there. Patient states she did not say no,
but “that I just laid there.” * * *
DEFENSE ATTORNEY: That would be incorrect, right?”
A.S.: That is — that’s not correct. I mean, that is correct, but that’s not correct. I
didn’t say anything as I laid there, no. I didn’t.
Pointing to this testimony, Haynik argues that A.S. admitted she did not say “no” before
the sexual act and “just laid there.” Our review, however, reflects that this testimony is
consistent with A.S.’s testimony on direct examination that after she said “no” to Haynik’s
sexual advance, he ripped her pajama and put her on the air mattress, and she did not
continue to verbally or physically resist him. We note, however, that her statement to the
SANE nurse regarding where the incident occurred was inconsistent with her testimony,
but the inconsistency was not further explored by the defense.
with his forearm on the front of her body and “put sucker bites all across [her] neck
to show [her] boyfriend that [she’s] taken.”
Haynik also started to call her a whore and a slut, and she raised her
voice, telling him, “You better get out, you get out, you leave.” After he left, Rhonda
woke up and immediately wanted to go home to sleep on her own bed. After Rhonda
left, A.S. thought to herself, “What just happened?” She kept thinking, “I know I
said no.” She testified she did not tell Rhonda what happened because she was still
in shock; Rhonda left quickly after she awoke, and A.S. did not have time to think
about what to tell her.
After Rhonda left, A.S. went to her ex-husband’s house and told him
what happened. He first dropped off their son at school around 8:30 a.m. and then
took her to the hospital for the collection of a rape kit. She was interviewed by the
police while at the hospital.
During her direct examination, the state introduced several exhibits
consisting of text messages between A.S. and Haynik on that evening. At 11:27 p.m.,
A.S. texted Haynik the address of her new apartment. At 6:19 a.m., she texted him:
“Don’t ever come near me again. I’m filing harassment charges on you today, then
I’m going to file a restraining order. I will never come back to you.” He texted her
at 7:28 a.m.: “Just keep fucking your son’s friend.” At 8:57 a.m., she texted him:
“I’m going to the emergency room. You raped me. I said no.” He responded
immediately: “We made love.” At 8:59 a.m., he texted: “We did it two times” and
then at 10:22 a.m.: “Why would you say such an untrue statement? If you told me
no, we wouldn’t have done it two times. You really are sick and a narcissist.” At
10:23 a.m., he texted: “Just go and keep fucking your son’s friend.” At 12:33 a.m.,
he texted: “Why would you make such a horrible false accusation? All because I
ruined some carpet and I was at your place because you told me to come? We made
love two times. I pulled out and you started kissing it. Get real. The materialistic
things I damaged can be easily replaced. * * *.”
In addition to the text messages, during A.S.’s direct examination, the
state also introduced A.S.’s pajamas as an exhibit. It was a onesie pajama with a zip-
up from the neck to the feet. A.S. testified that Haynik ripped the front zipper of the
pajamas.
On cross-examination, A.S. denied she wanted Haynik to come to her
apartment even though she provided her new address to him in a text message. She
testified that she did it because she felt he needed to know where she was out of
concerns for her safety. When pressed further, however, A.S. admitted that she
knew he would show up at her residence once he knew where she was, but she
vehemently denied she wanted to have sex with him, and she said no when he asked
for it.
c. A.S.’s Ex-Husband
A.S.’s ex-husband Lonnie testified that he was married to A.S. for over
18 years and they have three children together. His wife remained his best friend
even after their divorce, and they would communicate with each other a few times
each week. At the time of the incident, the divorce was not yet finalized.
Lonnie provided a statement to the police regarding the instant
incident. A.S. came to his residence around 7:30 a.m. on October 29, 2022. He
noticed that she pulled her legs up on the chair and cradled herself while rocking
back and forth, which, to him, indicated that something was seriously wrong. She
brushed her hair to show him the hickeys on both sides of her neck. She was very
distraught but tried hard not to cry in front of their youngest son, who was getting
ready to go to school. She briefly told him what happened and, after they took their
son to school, gave him more details about what occurred. He was in shock. They
went back to her apartment to pick up the pajamas and then went to the hospital for
a rape kit.
d. SANE Nurse and Police Officers
The SANE nurse attending to A.S. at the hospital testified that she
performed an examination of A.S. at the hospital after the police made a report of
the incident. She did not observe tears or rips in A.S.’s genitalia but observed hickeys
on her neck.
Officer Paul Hartranft of the Westlake Police Department testified
that he responded to a call from the SANE nurse regarding a rape. He interviewed
A.S. and then received from the SANE nurse the rape kit and the pajamas as
evidence for the case.
Sergeant Nathan Fox, a 15-year veteran with the Westlake Police
Department, testified that he was trained and certified for sexual assault cases and
he had worked on over 60 such cases. He took photographs of A.S.’s bedroom and
collected a comforter for evidence. Later, he was assigned to the case after the prior
detective on the case retired. He had reviewed all the documents and evidence in
the case. He testified that both the DNA buccal swabs from A.S.’s boyfriend and
Haynik were submitted for testing and the DNA located in the rape kit was from the
latter. He also testified that his review of Haynik’s phone records corroborated A.S.’s
testimony regarding his excessive calls to her. His review showed that on one
occasion, Haynik made more than 50 calls to her within two hours.
Sergeant Fox testified that he reviewed A.S.’s medical records
regarding the incident and there were no injuries to A.S.’s genitalia noted in the
records. He testified, however, that “[i]njuries don’t really indicate much other than
sometimes excessive force,” adding that “I’ve had many sexual assault cases where
there’s actually no injuries, and many where there’s devastating injuries.”
Regarding A.S.’s pajamas, Sergeant Fox testified that “significant
tearing and breakage of the zipper was noted in the photographs (of the pajamas),”
consistent with A.S.’s allegation that the pajamas were forcibly removed. The
prosecutor held up the pajamas for Sergeant Fox to show where the tearing was in
the pajamas.
Haynik did not testify, but he provided a statement to the police,
which the defense asked Sergeant Fox to read on cross-examination. In the
statement, Haynik provided a vastly different account of the event. According to his
statement, A.S. moved out of his residence a month before the incident, but they
were working on their relationship. In the month of October 2019, “[they] slept
together three more times, including October 28, 2019.” That evening, he went to
A.S.’s residence at 11:45 p.m. after she texted him her new address. After being let
in the apartment by Rhonda, he went to her bedroom and she began kissing him and
engaged in oral sex with him, and then they had consensual intercourse, with her on
top. They then argued about her new boyfriend, and she promised him not to see
him again. They started making love again, and while engaged in oral sex with him,
his mother called. According to Haynik, A.S. said “Hi Mom” to her. Haynik also
stated that A.S. liked “rough sex”; she was moaning and laughing while he gave her
hickeys, and she never screamed or said “no.” After the sexual conduct, he got mad
again because she refused to move back in with him. He poked a hole in the air
mattress. They argued but made up before he left. She walked him to the door and
hugged him good-bye, which was witnessed by Rhonda.
Haynik stated that he left A.S.’s apartment “feeling love and had hope
for [their] future.” He woke up in the morning to see nasty messages from her, but
it was after he texted “keeping sleeping with your son’s friend” that she accused him
of rape. He denied raping A.S., stating that “[e]verything was totally consented and
loving. She enjoyed it and ‘orgasmed’ twice.”
The defense questioned Sergeant Fox concerning the lack of
investigation regarding Haynik’s claim that his mother called him when he and A.S.
engaged in sexual conduct. Sergeant Fox acknowledged that the prosecutor
interviewed Haynik’s mother several days before the trial and his mother indicated
she talked to A.S. as Haynik alleged. Sergeant Fox, however, testified that nothing
in that interview was relevant to whether a rape occurred or not.
The defense did not call any witnesses to testify and moved for
acquittal pursuant to Crim.R. 29, which the trial court denied. The trial court found
Haynik guilty of rape in violation of R.C. 2907.02(A)(2).
At sentencing, A.S. made a victim impact statement. Haynik and
several family members also addressed the court, all vehemently proclaiming his
innocence. The court stated that, in finding Haynik guilty, it found A.S. credible and
believed her version of the event. Haynik was sentenced to an indefinite sentence of
five to seven-and-a-half years for his offense under the Reagan Tokes Law.
On appeal, Haynik raises the following assignments of error:
I. The state failed to present sufficient evidence to prove each and every
element of the offense beyond a reasonable doubt.
II. Appellant’s conviction was against the manifest weight of the
evidence.
III. The State of Ohio improperly introduced expert testimony from
Sergeant Fox to the prejudice of appellant and deprived him of his right
to a fair trial.
IV. The trial court erred in imposing an indefinite term as the Reagan
Tokes Law violated appellant’s constitutional right to due process
under the Fourteenth Amendment to the United States Constitution
and Article I Section 10 of the Ohio Constitution.
Sufficiency and Manifest Weight of the Evidence
When reviewing a challenge to the sufficiency of the evidence, we
review the evidence admitted at trial and determine whether such evidence, if
believed, would convince the average mind of the defendant’s guilt beyond a
reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),
paragraph two of the syllabus. “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.”
Id. A reviewing court is not to assess “whether the state’s evidence is to be believed,
but whether, if believed, the evidence against a defendant would support a
conviction.” State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997).
Haynik was convicted of forcible rape as defined in R.C. 2907.02(A)(2), which states
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.”
The issue presented in this appeal is whether the state proved that
Haynik compelled A.S. to submit to sexual conduct by force or threat of force.
“Force” is statutorily defined as “any violence, compulsion, or constraint physically
exerted by any means upon or against a person or thing.” R.C. 2901.01(A)(1).
We first note that “[t]he force element of R.C. 2907.02(A)(2) is the
extrinsic force used to compel the victim’s submission to sexual conduct; it is not the
sexual conduct itself.” State v. Hartman, 8th Dist. Cuyahoga No. 105159, 2018-
Ohio-2641, ¶ 29 (Stewart, J., concurring in part and dissenting in part). See also
State v. Griffith, 10th Dist. Franklin No. 05AP-1042, 2006-Ohio-6983, ¶ 17 (to prove
the force element of a sexual offense, the state must establish force beyond that force
inherent in the crime itself). Force, however, “can be inferred from the
circumstances surrounding sexual conduct * * *.” State v. Schaim, 65 Ohio St.3d 51,
55, 600 N.E.2d 661 (1992). The “force” element of R.C. 2907.02(A)(2) is
demonstrated through the evidence that the force was sufficient to overcome the
victim’s will. State v. Rucker, 2020-Ohio-2715, 154 N.E.3d 350, ¶ 17 (8th Dist.),
citing State v. Wine, 3d Dist. Auglaize No. 2-12-01, 2012-Ohio-2837, ¶ 50, citing
State v. Eskridge, 38 Ohio St.3d 56, 59, 526 N.E.2d 304 (1988).
Here, A.S. testified that Haynik said, “I am going to make love to my
woman” and she said, “no, no you’re not.” He ripped the front zipper of her pajama
while she pulled away. He then put her on her back on the mattress and penetrated
her. This testimony was sufficient evidence to prove that Haynik purposely
compelled A.S. to submit to sexual conduct by force.
Haynik argues that there was insufficient evidence for forcible rape
because A.S. admitted that she did not yell “help,” or say “no” or “stop it” during the
sexual conduct. While A.S. did not continue to protest after the initial “no” or
attempted to fight off Haynik, such testimony from a victim is not required for proof
of rape under R.C. 2907.02(A)(2). “A victim need not prove physical resistance to
the offender in prosecutions under this section.” R.C. 2907.02(C). This court has
also noted that, under Ohio law, there is no requirement that a victim resist in order
to prove the use of force. State v. Poole, 8th Dist. Cuyahoga No. 107829, 2019-Ohio-
3366, ¶ 33, citing State v. Malone, 3d Dist. Marion No. 9-06-43, 2007-Ohio-5484,
¶ 23 (“[W]e are aware of no requirement that the victim verbally resist.”), and State
v. Shannon, 11th Dist. Lake Nos. 2002-L-007 and 2002-L-008, 2004-Ohio-1669, ¶
94 (“[A] victim is not required to prove physical resistance in a rape prosecution.”).
See also Ohio v. Redmond, 8th Dist. Cuyahoga No. 111138, 2022-Ohio-3734, ¶ 25
(no requirement that the victim resist for the defendant’s act to be forceful).
Viewing the evidence presented at trial in a light most favorable to the
prosecution, therefore, we find that any rational trier of fact could have found the
elements of rape defined in R.C. 2907.02(A)(21) proven beyond a reasonable doubt,
specifically, that Haynik compelled A.S. to engage in vaginal intercourse by force
sufficient to overcome her will. The first assignment of error lacks merit.
Manifest Weight of the Evidence
While “sufficiency of the evidence is a test of adequacy as to whether
the evidence is legally sufficient to support a verdict as a matter of law, * * * weight
of the evidence addresses the evidence’s effect of inducing belief.” State v. Wilson,
113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing Thompkins, 78
Ohio St.3d at 386-387, 678 N.E.2d 541. The test for sufficiency requires a
determination of whether the state has met its burden of production at trial; a
manifest weight challenge questions whether the state has met its burden of
persuasion. Thompkins. Unlike a claim that the evidence is insufficient to support
a conviction, which raises a question of law, manifest-weight challenges raise factual
issues. “Under the manifest weight-of-the-evidence standard, a reviewing court asks
the following question: whose evidence is more persuasive — the state’s or the
defendant’s?” State v. Williams, 8th Dist. Cuyahoga No. 108275, 2020-Ohio-269,
¶ 86. When a defendant argues his or her conviction is against the manifest weight
of the evidence, the court,
“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 be reversed and a new trial ordered. The discretionary
power to grant a new trial should be exercised only in the exceptional
case in which the evidence weighs heavily against the conviction.”
Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d
717 (1st Dist.1983).
Haynik points to A.S.’s testimony that she provided him with her
address on the night of the incident knowing he would show up and that she
instructed her friend to let him in when he appeared at her apartment. He argues
that these circumstances, coupled with the parties’ relationship — which began with
a one-night stand and included a consensual sexual act just weeks before the
incident — indicate the sexual act on the night of the incident was consensual,
especially in light of the fact that A.S. did not immediately call 911 to report the
incident and did not accuse him of rape immediately in their text messages
exchanged later that morning. As proof of consensual sex, he also points to his text
message in response to her allegation of rape, where he stated “we made love” and
“why would you say such an untrue statement? If you told me no, we wouldn’t have
done it two times.”
A.S. testified at length regarding the incident and was subject to
rigorous cross-examination by the defense. Her testimony indicates that she said
“no” when Haynik said “I’m gonna to make love to my woman.” He ripped the zipper
of her onesie pajama, put her on the mattress, and engaged in vaginal intercourse
with her. After the sexual assault, he put multiple hickeys on her neck against her
will and also put burn holes in the carpet and stabbed the air mattress. The ripped
pajamas, which corroborates A.S.’s testimony, was admitted as evidence at trial.
While Haynik points out certain inconsistencies in A.S.’s testimony
such as her statement to the SANE nurse that the incident occurred in her “ex-best
friend’s” house, we note that, in a bench trial, “the court may take note of any
inconsistencies and resolve them accordingly, ‘believ[ing] all, part, or none of a
witness’s testimony.’” State v. McCall, 8th Dist. Cuyahoga No. 104479, 2017-Ohio-
296, ¶ 14, quoting State v. Raver, 10th Dist. Franklin No. 02AP-604, 2003-Ohio-
958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964).
After reviewing the entire record, weighing the evidence and all
reasonable inferences, and considering the witnesses’ credibility, we are unable to
conclude that the trial court, in resolving conflicts in the evidence, clearly lost its way
and created such a manifest miscarriage of justice that a new trial should be ordered.
Our review does not indicate that this is an exceptional case where the evidence
weighs heavily against the conviction. The second assignment of error is without
merit.
Allegation of Improper Expert Testimony
Under the third assignment of error, Haynik argues the trial court
improperly permitted Sergeant Fox to testify as an expert in violation of
Evid.R. 702(A). The trial transcript reflects that, after Sergeant Fox testified that his
review of the medical records did not show injuries to A.S.’s genitalia, the state
elicited the following testimony:
PROSECUTOR: Okay. In your experience in dealing with sexual
assault cases, injuries to genitalia, what, if anything, do you draw from
that in your investigation, injuries or lack therefore?
SERGEANT FOX: In sexual assault cases [it’s] not really atypical for
injuries or lack thereof. I’ve had many sexual assault cases where
there’s actually no injuries, and many where there’s devastating
injuries. So injuries don’t really indicate much other than sometimes
excessive force.
Haynik argues Sergeant Fox’s testimony should not be permitted
under Evid.R. 702, which governs expert testimony, because Sergeant Fox was not
qualified as an expert. We note that Haynik did not object to the testimony he now
challenges on appeal. As such, we review the issue for plain error. As we explain in
the following, Sergeant Fox’s testimony was permissible under Evid.R. 701 as
opinion testimony by a lay witness and, therefore, there was no error in the
admission of his testimony, plain or otherwise.
Evid.R. 701 states:
[I]f the witness is not testifying as an expert, the witness’ testimony in
the form of opinions or inferences is limited to those opinions or
inferences which are (1) rationally based on the perception of the
witness and (2) helpful to a clear understanding of the witness’
testimony or the determination of a fact in issue.
“Under Evid.R. 701, courts have permitted lay witnesses to express
their opinions in areas in which it would ordinarily be expected that an expert must
be qualified under Evid.R. 702.” State v. Primeau, 8th Dist. Cuyahoga No. 97901,
2012-Ohio-5172, ¶ 74. As the Supreme Court of Ohio explained, the propriety of
opinion testimony by a lay witness is based on a layperson’s personal knowledge and
experience, rather than on specialized knowledge contemplated in Evid.R. 702.
State v. McKee, 91 Ohio St.3d 292, 297, 744 N.E.2d 737 (2001).
This court has always recognized that a state’s witness not presented
as an expert can properly testify under Evid.R. 701 when “(1) the testimony is based
on the witness’s training or experience, (2) the testimony relates to the witness’s
personal observations with the investigation, and (3) the testimony is helpful to
determine a fact at issue.” State v. Calhoun, 8th Dist. Cuyahoga No. 105442, 2017-
Ohio-8488, ¶ 34, citing State v. Wilkinson, 8th Dist. Cuyahoga No. 100859, 2014-
Ohio-5791, ¶ 52-53; Primeau at ¶ 75; and State v. Cooper, 8th Dist. Cuyahoga
No. 86437, 2006-Ohio-817, ¶ 18.
Pursuant to Evid.R. 701, “if testimony is based on an officer’s training
and experience, related to the officer’s personal observations during an
investigation, and helpful to determine facts in issue, the testimony is properly
admitted as lay testimony under Evid.R. 701.” State v. Ladson, 8th Dist. Cuyahoga
No. 111211, 2022-Ohio-3670, ¶ 45, quoting State v. Harris, 8th Dist. Cuyahoga No.
108624, 2020-Ohio-4461, citing State v. Maust, 8th Dist. Cuyahoga No. 103182,
2016-Ohio-3171, ¶ 18.
Here, Sergeant Fox, a police officer with the Westlake Police
Department for 15 years, first testified regarding the training and certifications he
had received, which included advanced sexual assault training, and that he had
handled over 60 sexual assault cases. He testified that he became the lead detective
in this case when the prior lead detective retired and that he has fully reviewed the
matter. Where a law enforcement officer “testified as a lay witness to opinions based
on his experience as a police officer, his previous investigations, and his perception
of evidence at issue,” the first prong of Evid.R. 701 is satisfied. Harris at ¶ 51, citing
State v. Walker-Curry, 8th Dist. Cuyahoga No. 106228, 2019-Ohio-147, ¶ 12, citing
State v. Grajales, 5th Dist. Delaware No. 17CAC030020, 2018-Ohio-1124, ¶ 64.
Moreover, Sergeant Fox’s testimony based on his knowledge and experience in
sexual assault cases was helpful to determine a fact at issue regarding whether sexual
assault victims always sustain injuries to their genitalia.
“Evid.R. 701 affords the trial court considerable discretion in
controlling the opinion testimony of lay witnesses.” Harris at ¶ 54, quoting Grajales
at ¶ 60. Accordingly, even if the error were properly objected to and preserved for
our review, we would find that the trial court did not abuse its discretion in
admitting Sergeant Fox’s testimony under Evid.R. 701. There was no error, plain or
otherwise. The third assignment of error is overruled.
Reagan Tokes Law
Under the fourth assignment of error, Haynik claims the trial court
erred in imposing an indefinite sentence under the Reagan Tokes Law because the
law violates the separation-of-powers doctrine and his right to due process. In State
v. Delvallie, 2022-Ohio-470, 185 N.E.3d 538 (8th Dist.) (en banc), this court
addressed arguments similar to those raised by Haynik in this appeal and found the
Reagan Tokes Law constitutional. The fourth assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated. Case
remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
MICHELLE J. SHEEHAN, JUDGE
FRANK DANIEL CELEBREZZE, III, P.J., and
MICHAEL JOHN RYAN, J., CONCUR