[Cite as State v. McAlpine,
2024-Ohio-2455.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
Nos. 113242 and 113751
v. :
KEITH T. MCALPINE, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 27, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-22-670524-A and CR-22-667794-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Nora C. Bryan, Assistant Prosecuting
Attorney, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and
Rick Ferrara, Assistant Public Defender, for appellant.
MARY J. BOYLE, J.:
In this consolidated appeal, defendant-appellant, Keith T. McAlpine
(“McAlpine”), appeals his convictions for multiple counts of rape, kidnapping,
having weapons while under disability, and child endangering. McAlpine argues
that (1) he was not competent to stand trial; (2) the court failed to make findings of
guilt regarding the furthermore clause — “force or threat of force”; (3) there was
insufficient evidence of “force or threat of force”; and (4) his convictions are against
the manifest weight of the evidence. This matter involves the delayed disclosures of
two unrelated children under the age of 13. For the reasons set forth below, we
affirm McAlpine’s convictions.
I. Facts and Procedural History
In February 2022, McAlpine was charged in a five-count indictment
alleging two counts of rape with furthermore clauses alleging that the offender
purposely compelled the victim to submit by force or threat of force; one count of
kidnapping with a sexual motivation specification; one count of public indecency;
and one count of having weapons while under disability.1 The rape and the
kidnapping counts contained sexually violent predator specifications. The named
victim, H.H., was alleged to have been six years old at the time of the offenses.
Three months later, in May 2022, McAlpine was charged in a nine-
count indictment alleging six counts of rape with furthermore clauses alleging that
the offender purposely compelled the victim to submit by force or threat of force;
two counts of kidnapping with sexual motivation specifications; and one count of
endangering children.2 The rape and kidnapping counts contained sexually violent
1 State v. McAlpine, Cuyahoga C.P. No. CR-22-667794-A (February 15, 2022).
2 State v. McAlpine, Cuyahoga C.P. No. CR-22-670524-A (May 13, 2022).
predator specifications. The named victim, D.Y., was alleged to have been between
the ages of nine and ten when the offenses occurred. The cases were consolidated
for trial.
In July 2022, McAlpine was deemed incompetent to stand trial but
restorable. Dr. Michael Arnoff (“Dr. Arnoff”), Chief of Psychology with the Court
Psychiatric Clinic, opined that “[McAlpine] presents with a substantial probability
of being restored to competence within the time period permitted by statute.” (Tr.
29.) McAlpine was ordered to outpatient competency restoration.
Three months later, in October 2022, an independent doctor opined
that McAlpine was restored and competent to stand trial. McAlpine moved for a
second evaluation by Dr. Arnoff, which was granted. Dr. Arnoff again opined that
McAlpine was not competent to stand trial but restorable; the court agreed, but this
time McAlpine was sent to inpatient restoration at Northcoast Behavioral
Healthcare (“Northcoast”).
McAlpine entered Northcoast in February 2023 and was assigned a
psychiatrist as his treatment provider. After several months, the treating
psychiatrist referred McAlpine for an independent evaluation because McAlpine
was doing well and demonstrated that he was restored to competency. An
independent forensic consultant, Dr. Megan Testa (“Dr. Testa”), was assigned to
assess McAlpine’s competency and she found that McAlpine was competent.
In May 2023, pursuant to statute, a competency hearing was held and
Dr. Testa testified that she is board certified in adult and forensic psychiatry, and
that prior to being a consultant, she worked at Northcoast where she would treat
and evaluate individuals for competency restoration. She testified that she reviewed
McAlpine’s chart, the court’s journal entry from the January 2023 hearing, Dr.
Arnoff’s report from December 2022, and the police reports. She stated that a
summary of the previous two evaluations was incorporated in Dr. Arnoff’s
December report. She then interviewed McAlpine for 90 minutes and wrote a report
detailing her impressions and opinions.
Dr. Testa testified that she conducted a standard competency
evaluation that included McAlpine’s background, educational history, work history,
psychiatric history, drug and alcohol history, and legal history. She testified that
[w]e ask individuals questions about their charges, the level of
seriousness, the potential punishments they’re facing, the roles of
courtroom personnel, and plea bargaining, we want to make sure they
understand that, the basic pleas, the affirmative defense NGRI. Those
are the —those are the, I guess, informational or educational parts that
we want to make sure everyone understands. That’s part of the
competency evaluation.
We also ask questions to assess their ability to assist in their defense.
So, can they give some examples of plea bargains, can they talk
rationally about their case, can they give us their version of the events
that led to their arrest from their perspective, do they have views about
legal strategy? So those are some questions to assess their ability to
assist in their defense.
(Tr. 91.) Regarding McAlpine in particular, Dr. Testa testified that it was her
“opinion with a reasonable degree of medical certainty that at the time of the
evaluation Mr. McAlpine could understand the nature and objective of the
proceedings that he faced, and . . . that at that time he had the capacity to assist in
his defense.” (Tr. 94.) She further testified that she could not, with the information
available to her, confirm McAlpine’s diagnosis of unspecified intellectual disability.
Dr. Testa stated, “That diagnosis does not disqualify someone from being competent
to stand trial. . . . Plenty of people with that disorder would be found competent.”
(Tr. 96.) She went on to say that whether McAlpine did or did not have that
diagnosis, “it does not interfere with his ability to demonstrate the adjudicative
capacity.” (Tr. 99.) The court found that McAlpine was competent to stand trial.
In August 2023, McAlpine waived a jury and a bench trial ensued.
The State called nine witnesses. The following is a summary of the evidence
presented.
H.H.’s mother testified that she knew McAlpine through her
boyfriend who shared an apartment with McAlpine. She stated that they all spent
considerable time together and she trusted McAlpine. She testified that on July 18,
2020, while her boyfriend was incarcerated, McAlpine offered to take H.H. roller
skating along with his niece. She stated that McAlpine returned her daughter about
an hour later, claiming that they could not go skating because his niece had an
allergic reaction to a bee sting. He also stated that H.H. was sad, so he bought her a
doll. H.H. was six years old at the time.
H.H. was nine years old at the time of her testimony. She testified
that McAlpine used to live with her stepfather and one time offered to take her roller
skating with his niece. When McAlpine picked her up, the niece was not with him.
She fell asleep on the drive and woke up at McAlpine’s house. He said his niece got
stung by a bee and could not go skating. H.H. testified that McAlpine took her
upstairs to play a video game but told her not to tell anyone because the game was
for a “preteen.” (Tr. 395.) She did not know what “preteen” meant but he promised
her a popular doll if she played the game with him. She testified that they were in
McAlpine’s room but it did not have a bed, just a couch.
H.H. testified that McAlpine told her to pull her pants down and she
was confused because “at first I thought he meant for me to just pull like my pants
up to my knee, because I knew I wasn’t supposed to pull my pants down in front of
anybody, but he told me what he meant and I pulled my pants down.” (Tr. 398.) He
told her to lie on her stomach, and he put a sock around her eyes. He told her it
would feel like a pinch. McAlpine then inserted his finger into her anus, and it hurt.
She testified that she went to the bathroom and saw red when she pooped but she
“was little so she didn’t really know why.” (Tr. 402.) She testified she went back to
the room because she wanted the doll and McAlpine did the same thing again and,
this time, she cried and asked to go home. McAlpine called her mom, gave her the
doll, and took her home. She did not tell her mom because McAlpine told not to tell
because it was a game for “preteens.” (Tr. 407.)
H.H. eventually told her grandparents what happened with McAlpine
in December 2021, after watching a television show about sexual assaults. Her
grandparents then told her mother who reported the incident to the police.
D.Y.’s mother testified that McAlpine was dating her cousin when the
incidents happened during the school years of 2016 through 2018. She testified that
her daughter was in 5th and 6th grade at that time and would sleep at her cousin’s
house during the week. D.Y.’s mother explained that she worked as a bartender and
her cousin had a son who went to the same school as D.Y., so her cousin took them
to and from school. She testified that she noticed D.Y. acting out but did not know
why. D.Y. was nine and ten during that timeframe.
D.Y.’s mother testified that in September 2021, she went through her
daughter’s cell phone and discovered text messages about the incidents and
questioned D.Y. about it. She testified that she took D.Y. to the hospital and the
police were contacted.
At the time of D.Y.’s testimony, she was 16 years old. D.Y. testified
that McAlpine was a family friend who drove her to and from school during 5th and
6th grade. She testified that the first incident happened at the end of her 5th grade
year. She testified that on the drive home from school, McAlpine told her she had
to participate in a “challenge” game where she would have to answer a trivia
question correctly or perform a challenge. (Tr. 228.) When she lost the “challenge,”
he told her to go to the back trunk area of the SUV, blindfolded her with a white t-
shirt, pulled her pants down, and inserted a spoon into her vagina. (Tr. 230.)
Thereafter, McAlpine took D.Y. to his home on multiple occasions,
where he blindfolded her with a white t-shirt and inserted his finger into her vagina
and anus, and then ultimately had vaginal and oral sex with her. McAlpine would
then drive her home. D.Y. testified that the one time she told him no, he claimed
she stole $20 from him and she got in trouble. She told McAlpine she hated him,
and he told her he loved her. D.Y. testified that she was too afraid to tell anyone.
D.Y. testified that she does not know H.H.
A sexual assault nurse examiner from University Hospitals Rainbow
Babies and Children’s testified regarding D.Y.’s exam. She read D.Y.’s statement
describing the events. She testified that it was normal not to have any physical
injuries after a sexual assault, which was the case in this instance.
McAlpine was found guilty of nine counts of rape, three counts
kidnapping with the sexual motivation specifications, one count of having weapons
while under disability, and one count of endangering children but not guilty of the
furthermore clause —causing serious physical harm. In addition, he was found not
guilty of public indecency and the sexually violent predator specifications. The
court sentenced McAlpine to 25 years to life in prison.
McAlpine now appeals raising the following four assignments of
error for review:
Assignment of Error I: The trial court abused its discretion in
finding appellant competent to stand trial, at the same time denying
appellant his constitutional right to due process, by way of a
competency determination of restorability for a condition that was
unrestorable.
Assignment of Error II: The trial court violated appellant’s rights
under the Sixth Amendment to the United States Constitution and
Ohio law by imposing a term of 25 [years] to life on appellant as to both
cases without a furthermore specification to support that sentence.
Assignment of Error III: Insufficient evidence supported a finding
of force or threat of force as to H.H.
Assignment of Error IV: The manifest weight of the evidence did
not support a conviction.
II. Law and Analysis
A. McAlpine Was Competent to Stand Trial
Under McAlpine’s first assignment of error, he argues that it was an
abuse of discretion to find him competent to stand trial when he suffers from severe
developmental disabilities, which makes him unrestorable. We find McAlpine’s
argument unpersuasive.
We review a trial court’s determination of competency under the
abuse of discretion standard. State v. Shine, 2018-Ohio-2491, ¶ 19 (7th Dist.), citing
State v. Vrabel,
2003-Ohio-3193, ¶ 33; State v. Peters,
2023-Ohio-2028, ¶ 18 (11th
Dist.). A trial court’s finding that a defendant is competent to stand trial will not be
disturbed when there is some reliable and credible evidence supporting that finding.
State v. Neyland,
2014-Ohio-1914, ¶ 32-33, citing State v. Were,
2008-Ohio-2762,
¶ 46;
Vrabel at ¶ 33; State v. Lawson,
2021-Ohio-3566, ¶ 48 (“[a] defendant is
rebuttably presumed to be competent to stand trial”).
A defendant is presumed to be competent unless it is demonstrated
by a preponderance of the evidence that due to the defendant’s present mental
condition, he is incapable of understanding the nature and objective of the
proceedings against him or of assisting in his defense. R.C. 2945.37(G). A defendant
is competent to stand trial when he has “‘sufficient present ability to consult with his
lawyer with a reasonable degree of rational understanding’” and “‘a rational as well
as factual understanding of the proceedings against him.’” State v. Montgomery,
2016-Ohio-5487, ¶ 56, quoting Dusky v. United States,
362 U.S. 402 (1960).
McAlpine argues he was not competent to stand trial because he
suffers from a severe developmental disability and is unrestorable because he has an
IQ of 56. However, this court has found that a trial court may not find a defendant
incompetent to stand trial solely because he suffers from a mental illness or
intellectual disability. State v. McMillan, 2017-Ohio-8872, ¶ 28-29 (8th Dist.),
citing State v. Calabrese,
2017-Ohio-7316, ¶ 16 (8th Dist.). The test for competency
focuses entirely on the defendant’s ability to understand the meaning of the
proceedings against him and his ability to assist in his own defense regardless of the
defendant’s IQ. R.C. 2945.37(G);
Neyland at ¶ 32.
A review of the record indicates that there was reliable, credible
evidence supporting the court’s determination that McAlpine was competent to
stand trial. Dr. Testa testified that
Mr. McAlpine did very well during the interview. He was cooperative,
he was conversational, he related well. He could name his charges. He
could list his charges and talk about some of the specifications that
were on his charges. He understood their severity. He understood the
punishments that he could face. He understood the process of plea
bargaining, he could rationally describe that and give examples. He
had an understanding of various plea options that would be available
to him, and the outcomes of those various plea strategies. He could talk
rationally about the benefits of one strategy over the other. He could
discuss the NGRI defense and how that works. And he expressed a
degree of trust for his lawyer, and rationally discussed his version of the
events that occurred.
...
In regard to assisting in his defense, what we would ask, and what I
asked Mr. McAlpine, was strategy. Does he have an idea about what
strategy would be in his best interest? Does he have a degree of trust
for his lawyer? He had expressed good answers to those questions. He
did express a desire to work with his lawyer in his best interest,
willingness to accept advice, willingness to ask questions if there were
things he didn’t understand.
So all of his answers to those questions demonstrated an ability to assist
in his defense. He was also, while at the hospital, very goal oriented,
able to voice his needs, able to advocate for himself when he had needs
within the hospital. Those things also translate to an ability to work for
his best interest and work with others in for his best interest.
(Tr. 92-93.)
Further, when questioned about McAlpine’s IQ of 56, Dr. Testa
explained that IQ alone is not sufficient to diagnose intellectual disability. It
requires that a person demonstrate a level of adaptive functioning deficits. She
testified that while at Northcoast, “[McAlpine] was functioning well in the unit, his
adaptive functioning was good, he was able to help — he’s a caretaker for his mom,
he was able to call and [coordinate] various appointments and [get] a support
system in line. So, he demonstrated good adaptive functioning.” (Tr. 96-97.) Dr.
Testa further testified, that regardless of the diagnosis, her opinion with reasonable
medical certainty was that McAlpine “could assist in his defense at the time that I
met with him, and he had an understanding of his charges and the nature of them,
[and] the nature of the proceedings that he faced.” (Tr. 97.)
We further note that McAlpine was living independently, drove a car,
and was previously involved in the criminal justice system — accepting a plea
agreement in two cases, and opting for a bench trial in a third. His competency was
never challenged in any of those cases. Thus, after reviewing the entire record, we
find that there is reliable and credible evidence to support the trial court’s finding of
competency; therefore, we cannot say the trial court abused its discretion.
Accordingly, McAlpine’s first assignment of error is overruled.
B. The Judge’s Guilty Verdict Included the Furthermore Clause
Under McAlpine’s second assignment of error, he argues that the trial
court failed to make the furthermore finding regarding “force or threat of force” in
the rape counts; therefore, he could not be sentenced to 25 years to life in prison.
McAlpine relies on State v. Bowers, 2020-Ohio-5167, and Alleyne v. United States,
570 U.S. 99 (2013), for his argument. The State argues that a general verdict of
guilty is sufficient to encompass the furthermore clause in a bench trial. We find
that a general verdict is sufficient.
McAlpine’s reliance on Bowers and Alleyne is misplaced. In Bowers,
the defendant was found guilty, by a jury, of rape of a child under 13 along with the
furthermore specification that the child was under the age of 10. No other
specification was included in the indictment or submitted to the jury. Id. at ¶ 2.
Nevertheless, the trial court sentenced the defendant to 25 years to life under
R.C. 2971.03(B)(1)(c), which requires the furthermore finding that the victim was
compelled to submit by force or threat of force. On appeal, the Ohio Supreme Court,
held that because the finding of force or threat of force increased the minimum
sentence from 15 to 25 years in prison, the Sixth Amendment required that the
furthermore finding of force or threat of force be made by the jury. Id. at ¶ 23. The
court relied on the reasoning in Alleyne, where the United States Supreme Court
held that “facts that increase the mandatory minimum sentence are elements and
must be submitted to the jury and found beyond a reasonable doubt.” Id. at 108.
Although we agree that facts that increase the mandatory minimum sentence, like
the furthermore clause at issue in McAlpine’s case, are elements that must be proved
beyond a reasonable doubt, we do not agree that a separate finding of guilt must be
made in a bench trial.
Indeed, Ohio courts have held that Crim.R. 23(C) only requires the
court in a bench trial to make a general finding regarding its verdict. State v. Travis,
2022-Ohio-1233, ¶ 20 (8th Dist.), citing Cleveland Hts. v. Watson, 2005-Ohio-
3595, ¶ 15 (8th Dist.).3 Further, in a bench trial, the court is presumed to know and
apply the law correctly unless the record affirmatively demonstrates otherwise.
State v. Kilbane,
2019-Ohio-863, ¶ 15 (8th Dist.), citing State v. Shropshire, 2016-
Ohio-7224, ¶ 37 (8th Dist.).
Here, McAlpine waived a jury and elected to have a bench trial.
McAlpine was charged with nine counts of rape in violation of R.C. 2907.02(A)(1)(b)
with the furthermore clause alleging that the offender purposely compelled the
victims to submit by force or threat of force. After the trial, the court announced its
verdict in open court, as well as through its journal entry, finding McAlpine guilty of
each count of rape, which included the furthermore clause notably without
3 See, e.g., State v. Dear, 2014-Ohio-5104, ¶ 12 (10th Dist.) (in a bench trial, there
is no requirement to make a finding of serious provocation to find defendant guilty of the
inferior offense of aggravated assault); State v. Ham,
2009-Ohio-3822, ¶ 37 (3d Dist.) (no
requirement of findings of fact when tried to the bench); State v. Baker,
2004-Ohio-2061,
¶ 16 (3d Dist.) (in a bench trial, only a general verdict is required to find defendant guilty
of trafficking in crack cocaine in violation of R.C. 2925.03(A)(2), a felony of the first
degree); State v. Lantz,
2002-Ohio-3838, ¶ 31 (5th Dist.) (no requirement that trial court
make specific findings as to the elements of an offense).
qualification. Yet when finding McAlpine guilty of child endangering, the court
specifically found McAlpine not guilty of the furthermore clause that stated the
offender caused serious physical harm. This qualification further supports the
conclusion that the trial court intended to find McAlpine guilty of the furthermore
clause included in the rape counts. Because there is no requirement under
Crim.R. 23(C) that the court make a separate finding of guilt for the furthermore
clause, we find that the general verdict of guilty to the nine counts of rape included
the furthermore clause.
Having found McAlpine guilty of the furthermore clause in the rape
counts, the trial court had the discretion to sentence McAlpine to life without parole
under R.C. 2907.02(B). If the court declined to do that, the court was required to
sentence McAlpine to “a minimum term of twenty-five years and a maximum of life
imprisonment” under R.C. 2971.03(B)(1)(c). Therefore, McAlpine’s sentence of 25
years to life was proper.
Accordingly, McAlpine’s second assignment of error is overruled.
C. There Was Sufficient Evidence of Force or Threat of Force
In McAlpine’s third assignment of error, he argues that there was
insufficient evidence of “force or threat of force” as it pertains to the crimes against
H.H. We disagree.
The test for sufficiency requires a determination of whether the
prosecution met its burden of production at trial. State v. Bowden, 2009-Ohio-
3598, ¶ 12 (8th Dist.). An appellate court’s function when reviewing sufficiency 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. Leonard, 2004-Ohio-6235,
¶ 77, quoting State v. Jenks,
61 Ohio St.3d 259 (1991), paragraph two of the syllabus.
With a sufficiency inquiry, an appellate court does not review whether
the state’s evidence is to be believed but whether, if believed, the evidence admitted
at trial supported the conviction. State v. Starks, 2009-Ohio-3375, ¶ 25 (8th Dist.),
citing State v. Thompkins,
1997-Ohio-52. A sufficiency of the evidence argument is
not a factual determination, but a question of law.
Thompkins at 386.
In State v. Jones, 2021-Ohio-3311, the Ohio Supreme Court
cautioned:
But it is worth remembering what is not part of the court’s role when
conducting a sufficiency review. It falls to the trier of fact to “‘resolve
conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts.’” [State v.
McFarland, 162 Ohio St.3d 36,
2020-Ohio-3343,
164 N.E.3d 316,
¶ 24], quoting Jackson v. Virginia,
443 U.S. 307, 319,
99 S.Ct. 2781,
61
L.Ed.2d 560 (1979). Thus, an appellate court’s role is limited. It does
not ask whether the evidence should be believed or assess the
evidence’s “credibility or effect in inducing belief.” State v. Richardson,
150 Ohio St.3d 554,
2016-Ohio-8448,
84 N.E.3d 993, ¶ 13, citing
Thompkins, 78 Ohio St.3d at 386,
678 N.E.2d 541. Instead, it asks
whether the evidence against a defendant, if believed, supports the
conviction. Thompkins at 390 (Cook, J., concurring).
Id. at ¶ 16.
R.C. 2901.01(A)(1) defines “force” as any “violence, compulsion, or
constraint physically exerted by any means upon or against a person or thing.”
However, in cases involving sexual contact or conduct between a minor child and a
parent or parental authority figure, the Supreme Court of Ohio has held that force
can be subtle and psychological and thus be proven without a showing of physical
force. State v. George, 2024-Ohio-471, ¶ 33 (8th Dist.).
In State v. Eskridge, 38 Ohio St.3d 56 (1988), the Ohio Supreme
Court held that “[t]he force and violence necessary to commit the crime of rape
depends upon the age, size and strength of the parties and the relation to each
other.”
Id. at paragraph one of the syllabus. The court explained that “[f]orce need
not be overt and physically brutal but can be subtle and psychological. As long as it
can be shown that the rape victim’s will was overcome by fear or duress, the forcible
element of rape can be established.”
Id. at 58-59, citing State v. Martin,
77 Ohio
App. 553, (9th Dist. 1946); State v. Wolfenberger,
106 Ohio App. 322 (12th Dist.
1958).
In State v. Dye, 82 Ohio St.3d 323 (1998), the court held that a person
in a position of authority over a child under 13 may be convicted of rape of the child
with force without evidence of express threat of harm or evidence of significant
physical restraint.
Id. at 329. See also e.g., State v. Riffle,
110 Ohio App.3d 554, 561,
(9th Dist. 1996) (applied Eskridge to a defendant who was not the natural parent of
the child victim but held a position of authority over the young child by way of his
live-in relationship with the child’s mother).
Here, McAlpine who was nearly 35 years old at the time, was
entrusted with authority and control over H.H. to take her roller skating. Instead,
he drove her several miles to his home where she was alone with him. McAlpine
lured her into playing a game with him by promising her a doll. He told her not to
tell anyone. He blindfolded her. She was six years old at the time. We find when
viewing the evidence in a light most favorable to the State, any rational trier of fact
could have found the element of “force or threat of force.”
Accordingly, McAlpine’s third assignment of error is overruled.
D. McAlpine’s Convictions Are Not Against the Manifest Weight of the
Evidence
Under McAlpine’s fourth assignment of error, he argues that his
convictions are against the manifest weight of the evidence because the court relied
solely on the two alleged victims’ testimony, which was not corroborated by physical
evidence. We find McAlpine’s argument unpersuasive.
While the test for sufficiency requires a determination of
whether the prosecution has met its burden of production at trial, a manifest
weight challenge questions whether the prosecution has met its burden of
persuasion. Bowden, supra, citing Thompkins, 1997-Ohio-52. “When
considering a manifest weight claim, a reviewing court must examine the
entire record, weigh the evidence, and consider the credibility of witnesses.”
Id., citing State v. Thomas,
70 Ohio St.2d 79, 80 (1982). “The court may
reverse the judgment of conviction if it appears that the factfinder “‘clearly
lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed, and a new trial ordered.”’” Id. quoting
Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, (1st
Dist. 1983). A judgment should be reversed as against the manifest weight of
the evidence “‘only in the exceptional case in which the evidence weighs
heavily against the conviction.’” Thompkins at 387, quoting Martin.
As this court has previously stated:
The criminal manifest weight-of-the-evidence standard 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, 678 N.E.2d 541 (1997). Under the manifest weight-of-the-evidence standard, a reviewing court must ask the following question:
whose evidence is more persuasive — the state’s or the defendant’s?
Wilson at id. Although there may be legally sufficient evidence to
support a judgment, it may nevertheless be against the manifest weight
of the evidence. Thompkins at 387; State v. Johnson, 88 Ohio St.3d 95,
2000-Ohio-276,
723 N.E.2d 1054 (2000).
When a court of appeals reverses a judgment of a trial court on the basis
that the verdict is against the manifest weight of the evidence, the
appellate court sits as a “thirteenth juror” and disagrees with the fact
finder’s resolution of the conflicting testimony. Wilson at id., quoting
Thompkins at id.
State v. Williams,
2020-Ohio-269, ¶ 86-87 (8th Dist.).
McAlpine complains that the trial court relied solely on the testimony
of two children and argues that it created a manifest injustice. However, this court
has held that “[t]he testimony of one witness, if believed by the factfinder, is
enough.” State v. Jenkins, 2023-Ohio-3622, ¶ 39 (8th Dist.), quoting In re C.A.,
2015-Ohio-4768, ¶ 51 (8th Dist.). Furthermore, “‘[a] lack of physical evidence,
standing alone, does not render a defendant’s conviction against the manifest weight
of the evidence.’” State v. Williams,
2024-Ohio-838, ¶ 49 (8th Dist.), quoting State
v. Robertson,
2018-Ohio-2934, ¶ 32 (8th Dist.).4
Here, H.H. testified that McAlpine was supposed to take her roller
skating with his niece, but instead took her to his house. She identified State’s
exhibit No. 67 as a photograph of the house where McAlpine lived and described the
layout of the house and the room where the assault happened. H.H. testified that
McAlpine promised her a doll in exchange for her keeping quiet about playing a
“preteen” game with him. He blindfolded her. She described the two sexual assaults
in detail; they hurt, and she cried. Her mother testified that H.H. came home and
had a doll and that she complained that she saw blood when she went to the
bathroom. H.H. was six years old at the time of the assaults.
D.Y. testified that McAlpine would pick her up from school and
instead of taking her straight home, he would take her to a dead-end street where he
would make her play a “challenge” game. He would then make her move to the back
of the SUV where he would blindfold her and sexually assaulted her. She described
the sexual assaults in detail. This happened repeatedly over the course of nearly two
years. D.Y. was nine and ten years old at the time of the assaults.
4 State v. Flores-Santiago, 2020-Ohio-1274, ¶ 37 (8th Dist.), citing State v.
Rusnak,
2016-Ohio-7820, ¶ 30 (7th Dist.) (fact that no physical evidence from the crime
scene was presented at trial did not render verdict against the manifest weight of the
evidence); State v. Thomas,
2018-Ohio-4345, ¶ 25 (2d Dist.) (fact that defendant’s
conviction was based solely on victim’s testimony and not any physical evidence did not
render his conviction against the manifest weight of the evidence).
After reviewing the entire record, weighing all the evidence, and
considering the credibility of witnesses, we cannot say that the trial court clearly lost
its way. Therefore, we find that McAlpine’s convictions are not against the manifest
weight of the evidence.
Accordingly, McAlpine’s fourth assignment of error is overruled.
III. Conclusion
We find that the trial court did not abuse its discretion when it found
McAlpine was competent to stand trial. In addition, a general finding of guilt in a
bench trial is all that is required under Crim.R. 23(C) and that finding encompasses
the furthermore clause. Further, we find that there was sufficient evidence of “force
or threat of force” as it pertains to H.H. Finally, McAlpine’s convictions are not
against the manifest weight of the evidence.
Accordingly, the judgment is 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 appellant’s
conviction having been affirmed, any bail pending 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.
________________________
MARY J. BOYLE, JUDGE
MARY EILEEN KILBANE, P.J., and
ANITA LASTER MAYS, J., CONCUR
