State v. Kimbrough , 2021 Ohio 2225 ( 2021 )

[Cite as State v. Kimbrough, 2021-Ohio-2225.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
STATE OF OHIO C.A. No. 19CA011574
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
EDDIE KIMBROUGH COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. 19CR100402
DECISION AND JOURNAL ENTRY
Dated: June 30, 2021
SUTTON, Judge.
{¶1} Defendant-Appellant, Eddie Kimbrough, appeals his conviction of one count of
rape from the Lorain County Court of Common Pleas. For the following reasons, we affirm the
judgment of the trial court.
I.
Events of August 3, 2018
{¶2} In the early morning hours, T.S. was awakened by a knock on her bedroom window,
followed by a knock at her front door. She went to her front door, looked out the peephole, and
saw her friend, Mr. Kimbrough. She let Mr. Kimbrough inside of her apartment. Mr. Kimbrough
appeared to be agitated and angry. T.S. told Mr. Kimbrough that he needed to leave because she
had to work in the morning. When he did not leave, T.S. went into her bedroom to get a cigarette.
Mr. Kimbrough followed T.S. into her bedroom. While in the bedroom, a physical altercation
occurred between T.S. and Mr. Kimbrough leaving T.S. with a bruised, swollen, and bloodied
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face, marks on her neck, and bruises on her chest. According to T.S., after this physical altercation,
Mr. Kimbrough then told her if she did not have sexual intercourse with him, he would kill her.
Unable to fend him off, and in fear for her life, T.S. complied.
{¶3} After the sexual intercourse, T.S. sat in a chair in her bedroom while Mr.
Kimbrough laid in the bed. Once Mr. Kimbrough fell asleep, T.S. texted two friends that she had
been raped and asked them to call 911. When she received no response to her text messages, T.S.
went into the living room and called 911 to report she had been raped and that her assailant was
still in her apartment. The police responded within minutes and arrested Mr. Kimbrough.
{¶4} T.S. was transferred to the hospital, where a rape kit was completed. The police
officers also took photos of her injuries which revealed significant bruising on her upper torso.
Police later matched a DNA sample from Mr. Kimbrough to the sample taken from T.S.’s rape kit.
The Trial
{¶5} A grand jury indicted Mr. Kimbrough on one count of rape and one count of
kidnapping. The matter proceeded to trial. On the second day of trial, during a recess in the
proceedings that occurred after the close of the prosecution’s case, defense counsel was
approached by a man, J.P., in the hallway. J.P. asked defense counsel why no one was bringing
up certain information about the victim. J.P. then proceeded to show what defense counsel claimed
were sexually explicit text messages and pictures allegedly from the victim. The messages
allegedly included offers of sex for money made by the victim. Defense counsel approached the
judge in chambers with the prosecutor to discuss the alleged information that J.P. was offering.
The record indicates the trial court extended the recess by an additional ten minutes to provide
defense counsel with additional time to get copies of the alleged messages and images from J.P.’s
phone.
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{¶6} After the recess, the parties reconvened in the courtroom and went back on the
record. Defense counsel stated he was unable to provide the judge or the prosecutor with copies
of the alleged messages or pictures because J.P. was still trying to figure out how to get them off
his phone. Defense counsel argued for the admission of the evidence on the basis that the evidence
related to the victim’s credibility, because the victim previously testified she was having issues
with intimacy as a result of the rape by Mr. Kimbrough. The State argued against the admission
of anything from J.P.’s phone, or allowing J.P. to be called as a witness, on the grounds that the
State did not have the opportunity to authenticate the messages. The State indicated it would need
to perform a full extraction of J.P.’s phone to verify the authenticity of any messages or pictures.
The trial court ruled against allowing defense counsel to call J.P. as a witness or allowing the
pictures and messages into evidence. Defense counsel then asked for another recess to explore the
possibility of finding legal authority for the court. The trial court denied defense counsel’s request
for another recess.
{¶7} The defense proceeded with its case. Defense counsel called one witness, Mr.
Kimbrough, who testified in his own defense. Mr. Kimbrough admitted to getting into a physical
altercation with the victim that evening but denied raping her. He stated that after he fought with
T.S., they reconciled and had consensual sex. A jury returned a verdict of not guilty on one count
of kidnapping and guilty on one count of rape. Mr. Kimbrough was sentenced to eight years
imprisonment.
{¶8} Mr. Kimbrough now appeals from the trial court’s judgment and raises three
assignments of error for our review.
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II.
ASSIGNMENT OF ERROR I
THE COURT ERRED WHEN IT FAILED TO DECLARE A MISTRIAL,
CONTINUE THE TRIAL, OR PERMIT DEFENSE COUNSEL TO
QUESTION ON THE NEWLY DISCOVERED EVIDENCE AFTER A
WITNESS CAME FORWARD WITH SURPRISE TESTIMONY MID-
TRIAL.
{¶9} In his first assignment of error, Mr. Kimbrough argues the trial court erred in
handling the surprise witness that came forward with alleged new evidence after the close of the
State’s case. For the following reasons, we disagree.
{¶10} To make his argument, Mr. Kimbrough relies on Crim.R. 16, which governs
discovery in a criminal case. The rule aims “‘to prevent surprise and the secreting of evidence
favorable to one party.’” State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, ¶ 19, quoting
Lakewood v. Papadelis, 32 Ohio St.3d 1, 3 (1987). Mr. Kimbrough argues that the trial court
should have treated the surprise witness and the alleged new evidence as a discovery violation
under Crim.R. 16(L)(1).1 While Mr. Kimbrough cites to the rule relating to discovery violations,
he does not develop an argument that the State committed a discovery violation. Mr. Kimbrough
does not allege, nor does the record reflect, the State withheld the identity of J.P. or the information
on J.P.’s phone.
{¶11} Mr. Kimbrough’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE VERDICT IN THIS CASE IS AGAINST THE SUFFICIENCY OF THE
EVIDENCE AND SHOULD BE REVERSED BECAUSE IT VIOLATES
THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION, AND ARTICLE I, SECTION 10 OF
THE CONSTITUTION OF THE STATE OF OHIO.
1
Mr. Kimbrough cited and argued under Crim.R.16(E)(3), which is identical to Crim.R.
16(L)(1). See Darmond at ¶ 33.
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{¶12} In his second assignment of error, Mr. Kimbrough argues his conviction was not
supported by sufficient evidence because the State failed to prove Mr. Kimbrough used force or a
threat of force when he had sexual intercourse with T.S. Mr. Kimbrough concedes he had a
physical altercation with the victim, but contends he then had consensual sex with her. For the
reasons stated below, we are not persuaded by his argument.
Sufficiency of the Evidence
{¶13} Whether a conviction is supported by sufficient evidence is a question of law, which
this court reviews de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). “A challenge to
the sufficiency of the evidence concerns the State’s burden of production * * *” and is, “[i]n
essence, * * * a test of adequacy.” In re R.H., 9th Dist. Summit No. 28319, 2017-Ohio-7852, ¶
25; Thompkins at 386. In carrying out this review, the court’s function “is to examine the evidence
admitted at trial to determine whether such evidence, if believed, would convince the average mind
of the defendant’s guilt beyond a reasonable doubt.” State v. McFarland, 162 Ohio St.3d 36, 2020-
Ohio-3343, ¶ 24, quoting State v. Jenks, 61 Ohio St.3d 259 (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.{¶14} R.C. 2907.02 (A)(2) provides 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.” Moreover, “[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.” (Internal citation omitted.) State v.
Eskridge, 38 Ohio St.3d 56, 58-59 (1988).
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{¶15} Here, T.S.’s testimony, if believed, is sufficient to permit the jury to reasonably
infer that Mr. Kimbrough raped her. T.S. testified that Mr. Kimbrough used both physical and
psychological force in raping her. Describing the rape, T.S. testified Mr. Kimbrough slapped and
punched her in the face. T.S. further testified Mr. Kimbrough threw her on the bed and, as she
fought back, she rolled off the bed onto the floor. While on the floor, T.S. testified Mr. Kimbrough
pulled her up by her hair and threw her back on the bed. The State also provided pictures of T.S.
taken at the hospital showing the extent of her physical injuries, including significant swelling and
bruising to her face.
{¶16} In addition to evidence of physical force, T. S. also presented evidence that Mr.
Kimbrough used psychological force to rape her. T.S. testified Mr. Kimbrough threatened that if
she did not have sex with him, he would kill her. This constitutes force by fear or duress, which
can establish the element of force. See Eskridge, 38 Ohio St.3d at 58-59. T.S. also testified that
when Mr. Kimbrough was unable to penetrate her, he repeated the threat, stating he would kill her
if he was not able to penetrate her. T.S. testified, at that point, she got a lubricant because she was
afraid for her life.
{¶17} Viewing this evidence in a light most favorable to the prosecution, a rational trier
of fact could find all of the essential elements of rape, including the element of force, beyond a
reasonable doubt. T.S.’s testimony is legally sufficient to establish the element of force necessary
to sustain a conviction for rape. As such, Mr. Kimbrough’s conviction is supported by legally
sufficient evidence. Mr. Kimbrough’s second assignment of error is overruled.
ASSIGNMENT OF ERROR III
THE CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE
14TH AMENDMENT TO THE U.S. CONSTITUTION AND OF THE OHIO
CONSTITUTION.
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{¶18} In his third assignment of error, Mr. Kimbrough argues that his conviction was
against the manifest weight of the evidence. For the following reasons, we disagree.
{¶19} When considering a challenge to the manifest weight of the evidence, this Court is
required to consider the entire record, “weigh the evidence and all reasonable inferences, consider
the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier
of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction
must be reversed and a new trial ordered.” State v. Otten, 33 Ohio App.3d 339, 340 (9th
Dist.1986). “When a court of appeals reverses a judgment of a trial court on the basis that the
verdict is against the weight of the evidence, the appellate court sits as a ‘thirteenth juror’ and
disagrees with the factfinder’s resolution of the conflicting testimony.” Thompkins, 78 Ohio St.3d
at 387. “A reversal on this basis is reserved for the exceptional case in which the evidence weighs
heavily against the conviction.” State v. Croghan, 9th Dist. Summit No. 29290, 2019-Ohio-3970,
¶ 26.
{¶20} Here, there is no evidence the trier of fact “clearly lost its way” or that a “manifest
miscarriage of justice” has occurred. At trial, the defense conceded Mr. Kimbrough had a physical
altercation with T.S. and also that Mr. Kimbrough had sexual intercourse with T.S. The only
question was whether the sexual intercourse was consensual.
{¶21} Mr. Kimbrough testified the sexual intercourse was consensual. He further testified
that after the physical altercation, he got ice for T.S. to put on her face and then went to sleep in
T.S.’s bed. According to Mr. Kimbrough, T.S. then got in bed with him and they had consensual
sex. In his brief, Mr. Kimbrough argues his testimony should be given greater weight than that of
the victim’s testimony because, when asked, he was truthful about his illegal drug use. Mr.
Kimbrough admitted to consuming alcohol on the night in question and admitted to having a crack
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cocaine addiction. However, Mr. Kimbrough’s argument fails to recognize that the very things he
believes should have given his testimony greater credibility could have caused the jury to give his
testimony less credibility.
{¶22} T.S. testified that after Mr. Kimbrough beat her, he threatened to kill her if she did
not have sex with him. After having sexual intercourse, T.S. remained seated in a chair in the
bedroom. When T.S. believed Mr. Kimbrough was asleep, she got her phone from Mr. Kimbrough
and texted two of her friends that she was raped and asked them to call 911. The prosecution
presented the jury with copies of the time-stamped text messages T.S. had sent to her friends.
Pictures taken of T.S. at the hospital showed her swollen, bruised, and cut face. Sergeant Tabitha
Angelo, a detective with the Lorain Police Department, testified that T.S. was “obviously [] in
crisis” at the hospital and that T.S.’s injuries were consistent with her account of what happened
that evening. The sexual assault nurse examiner captured T.S.’s account of the events in her report
made at the hospital after the attack. The testimony that T.S. gave at trial remained consistent with
the sexual assault nurse examiner’s report.
{¶23} Upon our review of the entire record, weighing the evidence and all reasonable
inferences, and considering the credibility of witnesses, we determine that the jury, in resolving
any conflicts in the evidence, did not clearly lose its way and create a manifest miscarriage of
justice requiring reversal of Mr. Kimbrough’s conviction and a new trial. This is also not the
exceptional case in which the evidence weighs heavily against conviction.
{¶24} Mr. Kimbrough’s third assignment of error is overruled.
III.
{¶25} Based upon the foregoing, Mr. Kimbrough’s three assignments of error are
overruled, and the judgment of the Lorain County Court of Common Pleas is affirmed.
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Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
BETTY SUTTON
FOR THE COURT
HENSAL, P. J.
TEODOSIO, J.
CONCUR.
APPEARANCES:
GIOVANNA V. BREMKE, Attorney at Law, for Appellant.
J. D. TOMLINSON, Prosecuting Attorney, and LINDSEY C. POPROCKI, Assistant Prosecuting
Attorney, for Appellee.