[Cite as State v. Hodkinson,
2022-Ohio-3931.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Earle E. Wise, Jr., P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Craig R. Baldwin, J.
-vsCase No. 2022 AP 01 0001
MICHAEL A. HODKINSON
Defendant-Appellant OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Tuscarawas County
Court of Common Pleas, Case No. 2021
CR 07 0207
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 2, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RYAN STYER J. REID YODER
Prosecuting Attorney BENJAMIN R. SORBER
Tuscarawas County, Ohio DiCaudo, Pitchford & Yoder, LLC
209 South Main Street – Third Floor
KRISTINE W. BEARD Akron, Ohio 44308
Assistant Prosecuting Attorney
125 E. High Avenue
New Philadelphia, Ohio 44663
Tuscarawas County, Case No. 2022 AP 01 0001 2
Hoffman, J.
{¶1} Defendant-appellant Michael A. Hodkinson appeals his convictions and
sentence entered by the Tuscarawas County Court of Common Pleas on eight counts of
rape and eight counts of gross sexual imposition, following a jury trial. Plaintiff-appellee
is the state of Ohio.
STATEMENT OF THE CASE AND FACTS
{¶2} On July 2, 2021, the Tuscarawas County Grand Jury indicted Appellant on
seven counts of rape, in violation of R.C. 2907.02(A)(1)(b), felonies of the first degree;
one count of rape, in violation of R.C. 2907.02(A)(2), a felony of the first degree; seven
counts of gross sexual imposition, in violation of R.C. 2907.05(A)(4), felonies of the third
degree; one count of gross sexual imposition, in violation of R.C. 2907.05(A)(1), a felony
of the fourth degree. Each of the counts except for the fourth-degree felony gross sexual
imposition carried a sexually violent predator specification. The charges arose from
allegations of sexual abuse committed by Appellant against his live-in girlfriend’s daughter
(“the Victim”) when she was between the ages of 6 and 13 years old.
{¶3} Appellant appeared before the trial court for arraignment on July 22, 2021,
and entered a plea of not guilty to the Indictment. Appellant was released on bond with
GPS monitoring. The trial court scheduled the matter for jury trial on November 30, 2021.
{¶4} The following evidence was adduced at trial.
{¶5} Detective Jeff Moore of the Tuscarawas County Sheriff’s Office testified he
observed the forensic interview of the Victim, which was conducted at a child advocacy
center on June 4, 2021. Based upon information the Victim relayed during her interview,
Detective Moore proceeded to the Hampton Inn in New Philadelphia, Ohio. Hotel records
confirmed Appellant had rented a room, which was registered to his address, on August
Tuscarawas County, Case No. 2022 AP 01 0001 3
21, at 4:28 p.m. In order to rent the room, Appellant was required to provide a photo ID
and a credit card. During the forensic interview, the Victim disclosed Appellant had driven
her to the hotel in a silver convertible. Detective Moore was able to verify Appellant owned
a silver Pontiac convertible.
{¶6} On June 30, 2021, Detective Moore conducted an interview of Appellant at
the Tuscarawas County Sheriff’s Office. A video recording of the interview was played
for the jury. Based upon Detective Moore’s investigation, Appellant was placed under
arrest.
{¶7} Detective Moore monitored Appellant’s phone calls while he was being held
in jail. The jailhouse calls were video recorded. During a phone call with his daughter,
Ashley Hodkinson, on July 8, 2021, Appellant placed a note in front of the video camera.
The note read: “Tell your mom it’s okay. That you know when we met at the Hampton
Inn two years ago beside Arby’s.” Trial Transcript at 115. Thereafter, Appellant covered
the video camera with his hand. Detective Moore explained Appellant was trying to let
Ashley know the call was being recorded and she needed to be careful about what she
said. During a second call, Appellant told Ashley he was at the Hampton Inn with her
mother, his ex-wife, Denise Hodkinson, and they were engaged in a sexual relationship.
Detective Moore spoke with Denise Hodkinson, who indicated she and Appellant had not
been together in 21 years.
{¶8} Skyler Smolak, a caseworker and forensic interviewer with Tuscarawas
County Job and Family Services (“TCJFS”), testified he was assigned to the case in June,
2021, after TCJFS received an anonymous report of suspected abuse involving the
Victim. The intake sheet reflected the referral was made to TCJFS by an unrelated
Tuscarawas County, Case No. 2022 AP 01 0001 4
female. After he was unable to reach Trisha Jones aka Trisha McGill, the Victim’s mother,
by phone, Smolak proceeded to the address on the intake sheet to initiate his
investigation. Appellant answered the door and told Smolak Jones was at work at
WalMart and had taken the Victim with her that day. Smolak advised Appellant TCJFS
had received allegations of sexual abuse involving him and explained either he or Jones
and the Victim would have to leave the residence.
{¶9} Smolak spoke with Jones a few days later, informed her of the allegations
against Appellant, and scheduled a forensic interview of the Victim. Judy Couts, the
Victim’s grandmother, brought the Victim to the child advocacy center for the forensic
interview on June 8, 2021.
{¶10} The Victim was well-dressed and her hair was groomed. She was calm and
made good eye contact with Smolak. When discussing things she liked, the Victim was
happy and animated. Smolak described her demeanor as “overall joy, joyous.” Tr. at
138. Smolak recalled the Victim’s demeanor immediately changed when she began to
explain why she was there that day. The Victim started to cry, “seemed very upset,
nervous to talk about what she was going to tell me.” Id. at 139. The Victim disclosed an
incident at a hotel. Following the interview, Smolak advised the grandmother the Victim
should not have any contact with Appellant. Smolak referred the Victim to counseling
and for a medical examination.
{¶11} On cross-examination, Smolak testified the Victim indicated the abuse
started when she was six years old. The Victim was 12 or 13 years old at the time of the
interview. The Victim told Smolak the last incident of abuse occurred in February, 2021.
On re-direct examination, Smolak stated the Victim used age appropriate language. He
Tuscarawas County, Case No. 2022 AP 01 0001 5
added she had knowledge of sexual experiences which was not typical for a child of her
age.
{¶12} M.M., the Victim’s older brother, testified Appellant gave the Victim basically
“anything she wanted for the most part,” including a horse. Tr., Vol. II at 160. M.M.
thought it was unusual as Appellant did not give his daughter anything she wanted. M.M.,
who was 20 years old at the time of trial, recalled he was 15 years old when the Victim
disclosed Appellant’s abuse. M.M. did not report the disclosure because he did not think
the Victim was serious. When M.M. learned the Victim was making disclosures to her
friends, he approached her again. M.M. “didn’t want to tell anybody because [he] was
afraid that [he] was going to put [his] mom and [the Victim] in a bad situation,” specifically,
losing a place to live. Id. at 164.v M.M. tried to be around the house to make sure the
Victim was safe.
{¶13} Sometime in late 2020, M.M. received Snapchat photos from the Victim,
showing her crying. M.M. spoke with the Victim then told Jones Appellant was forcing the
Victim to have sex with him. M.M. described Jones as “furious.” On cross-examination,
M.M. acknowledged Jones and the Victim continued to live with Appellant after the
disclosure.
{¶14} Trisha Jones testified she and her children moved into Appellant’s home
around May, 2010. Appellant’s daughter, Daphne, was also living in the home on
opposite weeks through the shared parenting plan between Appellant and Brenda Hall,
her mother. Initially, Jones’ relationship with Appellant went well. However, Appellant
and Jones’ three sons were not getting along and Jones and her four children moved in
with her mother. A year later, Jones and the children returned to Appellant’s home. Jones
Tuscarawas County, Case No. 2022 AP 01 0001 6
described the relationship between Appellant and the Victim as close, recalling the Victim
called him “dad.”
{¶15} Jones stated she had foot surgery in late July, 2020, and was on leave from
work for 12 weeks. One day when she was home, Appellant took the Victim to pick up
food. Jones recalled Appellant and the Victim were gone for over an hour and when they
returned, the food was cold. Jones was unaware of Appellant’s abuse of the Victim until
M.M. told her. When Jones asked the Victim about the allegations, the Victim “just blurted
out balling, which made me cry.” Id. at 196.
{¶16} Jones indicated she stayed with Appellant because she could not afford a
place of her own. Jones never confronted Appellant. In order to keep the Victim safe
until she could find a different place to live, Jones would take the Victim to work with her
or make alternative arrangements. Jones and the Victim left Appellant’s home after she
was instructed to do so by TCJFS. Jones was also instructed to arrange an interview for
the Victim at the child advocacy center.
{¶17} On cross-examination, Jones stated she and her children moved out of
Appellant’s home three times during the course of her relationship with Appellant. She
and her children moved out in 2012, but moved back in with Appellant in 2013. Jones
and her children moved out again in 2016. Jones, M.M. and the Victim returned to
Appellant’s home in 2017. Appellant kicked M.M. out of the house in April, 2021. Jones
and the Victim left for the last time following TCJFS involvement.
{¶18} Karie Milburn, an employee at the Hampton Inn in New Philadelphia,
identified State’s Exhibit 1 as the check-out folio from a reservation at the hotel. Milburn
stated the Hampton Inn requires an individual to present an ID and a credit card in order
Tuscarawas County, Case No. 2022 AP 01 0001 7
to rent a room. The name on State’s Exhibit 1 was that of Appellant. The check-in date
was August 21, 2020, and the departure date was August 22, 2020.
{¶19} The Victim testified Appellant and Jones started dating when she was
approximately two years old. The Victim explained her father was not involved in her life
and Appellant was the only father figure she had. She stated, “He made me feel like a
daughter because at the time I didn’t have a dad, so he was like a father figure, took care
of me. Bought me gifts for birthdays and Christmas. … He treated me how he would
treat his other daughters. … He would take me riding on is [sic] four wheeler. He got
me animals.” Id. at 212. The Victim added Appellant actually treated her better than his
daughter, Daphne, who lived in the home, and if she asked for something, Appellant
usually said yes. Appellant rarely told her “No.”
{¶20} The Victim recalled Appellant started abusing her when she was six or
seven years old, touching her breasts and her vagina. The Victim added, “He would touch
me where I should never be touched.” Id. at 220. She explained, “I thought it was what
fathers and daughters did.” Id. at 221. She recounted Appellant removing her clothing,
laying her on the bed, and touching her breasts and vagina. Appellant would remove his
pants and underwear and touch her vagina with his penis. The Victim explained Appellant
would keep his penis in her vagina “[u]ntil he was ready … [t]o spray liquid on me.” Id.
at 225. The Victim described the liquid as white with a “[d]isgusting odor.” Id. Appellant
would sometimes place his finger in her vagina. Appellant’s abuse continued until the
Victim was 13 years old. Appellant told the Victim not to tell anyone because, according
to Appellant, “they wouldn’t understand.” Id. at 229. The Victim felt like she could not tell
anyone what Appellant was doing to her.
Tuscarawas County, Case No. 2022 AP 01 0001 8
{¶21} The last incident of abuse occurred in February, 2021. The Victim
attempted to get away from Appellant, but Appellant grabbed her and pushed her into the
bedroom. After the incident, the Victim sent a Snapchat photo of herself crying to M.M.
M.M. immediately contacted the Victim and she disclosed the abuse. M.M. told Jones.
{¶22} The Victim detailed an incident which occurred when her friend, N.W., was
visiting. The Victim and N.W. were in the Victim’s bedroom with the door closed.
Appellant walked in and remarked N.W. was pretty and he wanted to touch her. N.W.
refused Appellant’s advances. Appellant then began to grope the Victim. When asked
how she was feeling at the time, the Victim stated, “Normal at the time.” Id. at 233. N.W.
observed what happened and encouraged the Victim to tell someone. The Victim was
unable to disclose Appellant’s abuse to anyone because she “just didn’t have a voice.”
Id. N.W. helped the Victim recognize Appellant’s behavior was not normal and was not
appropriate. However, the Victim asked N.W. not to tell anyone because she was scared.
{¶23} On re-direct examination, the Victim was asked about an incident which
occurred at a hotel. The Victim recalled Appellant returned home “a little drunk.”
Appellant told the Victim they were going to get something to eat. Jones was recovering
from surgery at the time. Appellant proceeded to a hotel, telling the Victim she could
swim for a little bit. The Victim waited in the car while Appellant went into the hotel to pay
for the room. The pool was closed due to the pandemic. Appellant took the Victim to the
room where he proceeded to touch her breasts and vagina. The Victim noted Jones was
concerned when they finally arrived home because they had been gone so long.
{¶24} N.W. testified she has known the Victim since the two were in elementary
school. N.W. detailed an incident involving Appellant which occurred while she and the
Tuscarawas County, Case No. 2022 AP 01 0001 9
Victim were “hanging out” in the Victim’s room. She recalled Appellant entered the room
and pushed the Victim onto her bed. Appellant removed the Victim’s pants. N.W.
observed Appellant touch the Victim’s vagina. Appellant then asked N.W. if he could
touch her. N.W. explained Appellant wanted to touch “[m]y private area.” Id. at 251.
Feeling scared, N.W. ran out of the room and looked for Jones. N.W. was unable to
locate Jones and returned to the Victim’s room. The Victim pulled her pants back on and
Appellant left the room. N.W. and the Victim did not discuss the incident for the rest of
the day.
{¶25} Two days later, N.W. approached the Victim and spoke about what
occurred. N.W. asked the Victim if she could tell someone or if N.W. could tell someone.
The Victim said, “No.” N.W. told the Victim what Appellant did was wrong. N.W. indicated
the Victim thought it was just something which normally happens. The Victim asked N.W.
not to tell anyone. Sometime thereafter, N.W. and the Victim were at a sleepover with
two other girls when the Victim disclosed Appellant’s abuse. The Victim also told the
other girls not to tell anyone. On cross-examination, N.W. noted the incident in the
Victim’s room occurred in February, 2019, and the Victim’s disclosure at the sleepover
occurred in October, 2019. N.W. explained she never told anyone because the Victim
had asked her not to do so.
{¶26} After the state rested, Appellant made an oral Crim. R. 29 motion for
acquittal, which the trial court denied. Counsel for Appellant moved the trial court to allow
the introduction of Defendant’s Exhibit A, the video recordings of the forensic interviews
of the Victim and N.W. conducted at the child advocacy center, for impeachment
purposes. Defense counsel informed the trial court he had reviewed the taped
Tuscarawas County, Case No. 2022 AP 01 0001 10
interviewed, but had not anticipated the inconsistencies in the testimony of the Victim and
N.W. Defense counsel advised the trial court he intended to call the Victim and N.W. to
question them regarding the inconsistencies. Defendant’s Exhibit A was played for the
jury. Appellant also presented the testimony of his three daughters and ex-wife.
Appellant did not testify on his own behalf.
{¶27} After hearing all the evidence and deliberating, the jury found Appellant
guilty of all counts in the Indictment. The trial court conducted a sentencing hearing on
December 9, 2021. The trial court sentenced Appellant to life without the possibility of
parole.
{¶28} It is from these convictions and sentence Appellant appeals, raising the
following assignments of error:
I. APPELLANT WAS DEPRIVED OF THE EFFECTIVE
ASSISTANCE OF COUNSEL WHERE TRIAL COUNSEL FAILED TO
ADEQUATELY PREPARE FOR TRIAL AND FAILED TO ADEQUATELY
CROSS EXAMINE WITNESSES IN VIOLATION OF THE SIXTH AND
FOURTEENTH AMENDMENTS.
II. APPELLANT’S CONVICTION FOR RAPE WAS NOT
SUPPORTED BY SUFFICIENT EVIDENCE.
I
{¶29} In his first assignment of error, Appellant raises an ineffective assistance of
counsel claim. Appellant asserts trial counsel was ineffective for failing to impeach the
Tuscarawas County, Case No. 2022 AP 01 0001 11
Victim through her prior inconsistent statements and for failing to object to testimony
relative to Appellant not allowing the Victim to keep a dog he had given to her.
{¶30} A properly licensed attorney is presumed competent. State v. Hamblin, 37
Ohio St.3d 153,
524 N.E.2d 476 (1988). In order to prevail on a claim of ineffective
assistance of counsel, an appellant must show counsel's performance fell below an
objective standard of reasonable representation and, but for counsel's error, the result of
the proceedings would have been different. Strickland v. Washington,
466 U.S. 668,
104
S.Ct. 2052,
80 L.Ed.2d 674(1984); State v. Bradley,
42 Ohio St.3d 136,
538 N.E.2d 373
(1989). In other words, an appellant must show counsel's conduct so undermined the
proper functioning of the adversarial process the proceedings cannot be relied upon as
having produced a just result.
Id. In determining whether counsel's representation fell
below an objective standard of reasonableness, judicial scrutiny of counsel's performance
must be highly deferential.
Bradley at 142, 538 N.E.2d 373. Because of the difficulties
inherent in determining whether effective assistance of counsel was rendered in any
given case, a strong presumption exists counsel's conduct fell within the wide range of
reasonable professional assistance.
Id.
{¶31} In order to warrant a reversal, an appellant must additionally show he was
prejudiced by counsel's ineffectiveness. “Prejudice from defective representation
sufficient to justify reversal of a conviction exists only where the result of the trial was
unreliable or the proceeding fundamentally unfair because of the performance of trial
counsel.” State v. Carter, 72 Ohio St.3d 545, 558,
651 N.E.2d 965 (1995), citing Lockhart
v. Fretwell,
506 U.S. 364, 370,
113 S.Ct. 838,
122 L.Ed.2d 180 (1993). The United States
Supreme Court and the Ohio Supreme Court have held a reviewing court “need not
Tuscarawas County, Case No. 2022 AP 01 0001 12
determine whether counsel's performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged deficiencies.”
Bradley at 143,
quoting
Strickland at 697.
{¶32} Assuming, arguendo, trial counsel was ineffective for failing to impeach the
Victim’s testimony with prior inconsistent statements and for failing to object to testimony
relative to the Victim’s pet dog, we find Appellant failed to establish, “but for counsel's
error, the result of the proceedings would have been different.” Strickland, supra. There
is nothing in the record to remotely suggest had counsel attempted to impeach the Victim
with her prior inconsistent statements the jury would have been swayed to acquit
Appellant of the rape charges. Trial counsel pointed out the inconsistencies during
closing arguments.
{¶33} We turn to Appellant’s argument trial counsel was ineffective for failing to
object to the testimony relative to Appellant’s refusal to allow the Victim to keep the dog
he had given her. “The failure to object to error, alone, is not enough to sustain a claim
of ineffective assistance of counsel.” State v. Fears, 86 Ohio St.3d 329, 347,
715 N.E.2d
136 (1999), quoting State v. Holloway,
38 Ohio St.3d 239, 244,
527 N.E.2d 831(1988) A
defendant must also show he was materially prejudiced by the failure to object.
Holloway,
supra at 244. Appellant is unable to make such a demonstration.
{¶34} Further, we are not persuaded the trial court would have sustained
counsel’s objection to the testimony. Because Appellant would not likely have prevailed
on such an objection, his trial counsel was not ineffective for failing to object. A claim of
ineffective assistance of counsel cannot serve as an end-around to a failure to object.
See, Strickland, supra at 689-90.
Tuscarawas County, Case No. 2022 AP 01 0001 13
{¶35} Appellant’s first assignment of error is overruled.
II
{¶36} In his second assignment of error, Appellant argues his convictions for rape
were not supported by sufficient evidence. Specifically, Appellant contends the state
failed to present any evidence of penetration.
{¶37} An appellate court's function when reviewing the sufficiency of the evidence
is to determine 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. State v. Jenks, 61 Ohio St. 3d 259,
574 N.E.2d 492,
paragraph two of the syllabus (1991).
{¶38} Appellant was convicted of seven counts of rape, in violation of R.C.
2907.02(A)(1), and one count of rape, in violation of R.C. 2907.02(A)(2).
{¶39} R.C. 2907.02(A) provides, in relevant part:
(A)(1) No person shall engage in sexual conduct with another who is
not the spouse of the offender or who is the spouse of the offender but is
living separate and apart from the offender, when any of the following
applies:
…
(b) The other person is less than thirteen years of age, whether or
not the offender knows the age of the other person.
…
Tuscarawas County, Case No. 2022 AP 01 0001 14
(2) No person shall engage in sexual conduct with another when the
offender purposely compels the other person to submit by force or threat of
force.
{¶40} R.C. 2907.01(A) defines “sexual conduct” as “vaginal intercourse between
a male and female; anal intercourse, fellatio, and 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.”
{¶41} The Victim testified as follows:
Q. [Prosecutor] He would have you in the bed. All right. So now
you’re in bed with [Appellant], you’ve got clothes on, you don’t have clothes
on, right. What happens next.
A. [Victim] He would touch me.
Q. Where would he touch you?
A. Vagina, boobs.
Q. Okay. You know those grownup [sic] words now, right?
A. Yes.
Q. Okay. What would he touch you with?
A. His hands on there.
Q. And how would his hands touch you?
A. Just in a weird way.
Tuscarawas County, Case No. 2022 AP 01 0001 15
Q. Okay. How is it weird?
A. He would like, I don’t know how to put it in words.
Q. How did it feel?
A. Weird, uncomfortable.
Q. Uncomfortable. What was uncomfortable about it?
A. I just don’t like being touched.
Q. But you thought that’s what daddies and daughters do, right?
A. Yes.
Q. But you still didn’t like it? Would [Appellant] say anything to you?
A. Sometimes.
Q. What would he say?
A. Usually he would say make love.
Q. He would tell you were going to make love?
A. Yes.
Q. What does that mean?
A. Sex.
Q. Okay. Does touching you with your, with his hands on you vagina,
is that sex?
A. No, but it’s still part of it.
Q. So which, is that the beginning part of it?
A. Yes.
Q. So what happens after that?
A. He would usually have his pants and underwear off.
Tuscarawas County, Case No. 2022 AP 01 0001 16
…
Q. And once he took off the bottom half of his clothing, then what
happened?
A. Usually he would touch me with his penis.
Q. Where would he touch you with his penis?
A. In my vagina.
Q. And when that happened, how did that feel?
A. Uncomfortable.
…
Q. So after his penis felt uncomfortable in your body, them what
happened?
A. He would rub it on me sometimes.
Q. Where would he rub it on you?
A. My vagina.
…
Q. Was there ever anything different than him putting his penis in
your body?
A. Can you –
Q. Did anything else ever go into your body?
A. No, sometimes he would try to put is [sic] finger.
…
Q. And when his penis was floppy and he was holding on it and trying
to insert it, could you feel that?
Tuscarawas County, Case No. 2022 AP 01 0001 17
A. Sometimes.
…
Q. But those times that he held it and put it down there, it would be
the, would it go into your vaginal area, into, into that part of your body? Did
you feel it between there?
A. Not all the way up, but yes.
Q. When you say not all the way up, what do you mean?
A. Like, like, it was like, I don’t know how to say this, it was like past
the lips.
Q. And were there times when he put it all the way up?
A. Not that I know of, no.
Q. Okay.
A. I never felt it.
Q. Okay. So just inside enough to be uncomfortable. And then he
would finish outside. …
{¶42} Tr., Vol. II at 223-226, 228-229.
{¶43} On cross-examination, counsel for Appellant asked the Victim, “So he
inserted his penis inside your vagina. Correct?” Id. at 244. The Victim responded, “Yes.”
Id.
{¶44} We find the Victim’s testimony, as set forth, supra, was sufficient to prove
penetration of the vagina for purposes of satisfying the element of sexual conduct as
defined in R.C. 2907.01(A), and to support Appellant’s rape convictions.
Tuscarawas County, Case No. 2022 AP 01 0001 18
{¶45} Appellant’s second assignment of error is overruled.
{¶46} The judgment of the Tuscarawas County Court of Common Pleas is
affirmed.
By: Hoffman, J.
Wise, Earle, P.J. and
Baldwin, J. concur
