State v. Barnes , 2023 Ohio 353 ( 2023 )

[Cite as State v. Barnes, 2023-Ohio-353.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY
STATE OF OHIO, CASE NO. 2022-T-0061
Plaintiff-Appellee,
Criminal Appeal from the
- vs - Court of Common Pleas
JOSHUA KENNETH BARNES,
Trial Court No. 2021 CR 00735
Defendant-Appellant.
OPINION
Decided: February 6, 2023
Judgment: Affirmed
Dennis Watkins, Trumbull County Prosecutor, and Ryan J. Sanders, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481 (For Plaintiff-Appellee).
Catherine R. Meehan, Patituce & Associates, LLC, 16855 Foltz Industrial Parkway,
Strongsville, OH 44149 (For Defendant-Appellant).
MATT LYNCH, J.
{¶1} Defendant-appellant, Joshua Kenneth Barnes, appeals his convictions for
Rape and other crimes in the Trumbull County Court of Common Pleas. For the following
reasons, we affirm the convictions.
{¶2} On September 23, 2021, the Trumbull County Grand Jury indicted Barnes
on the following charges: Rape (Counts 1-5), felonies of the first degree in violation of
R.C. 2907.02(A)(1)(b) and (B) and R.C. 2971.03(B)(1)(c); Unlawful Sexual Conduct with
a Minor (Counts 6-7), felonies of the third degree in violation of R.C. 2907.04(A) and
(B)(3); Interference with Custody (Count 8), a misdemeanor of the first degree in violation
of R.C. 2919.23(A)(1) and (D)(1) and (2); and Furnishing Beer or Intoxicating Liquor to
Underage Person (Counts 9-10), a misdemeanor in violation of R.C. 4301.69(A) and R.C.
4301.99(I).
{¶3} The charges were tried to a jury between April 25 and 28, 2022. At trial, the
following relevant testimony was presented:
{¶4} P.P. testified that her date of birth is May 10, 2008, and that she was age
thirteen at the time of trial. Currently she resides at a juvenile detention center because
she is “very known for running away.” P.P. moved to Ohio in December 2018 and lived
on Hartzell Avenue in Niles with her father (Raul or Rudy Posadas), her aunt (Maricella
Posadas), her cousin (Barnes), and his two children.
{¶5} On New Year’s Eve, Barnes was babysitting P.P. While they were watching
a movie, Barnes asked her to “cuddle and sit with him.” She complied because “he was
babysitting with me and I was afraid to not listen to him because I was gonna get in
trouble.” Barnes began to touch her and asked if it was okay. P.P. said yes, “just being
ten and scared of not listening and thinking I was gonna get in trouble.” Barnes eventually
penetrated her digitally and stopped, according to P.P., because he knew she was
uncomfortable.1
{¶6} The next day, P.P.’s father was still absent from the home. Barnes and P.P.
were again watching television toward evening time when he performed cunnilingus on
1. These events are the basis for Count 1 Rape.
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her.2 Barnes stopped but continued to be physical with her, touching her and kissing her
when people were not around.
{¶7} In May 2019, shortly after her eleventh birthday, Barnes had intercourse
with P.P. in the attic of the house. P.P. testified that “it hurt” but that she was afraid to
say anything. Before moving to Ohio, P.P. was being raised by her grandparents who
were very strict with her about respecting her elders. Sexual encounters with Barnes
were frequent thereafter.
{¶8} Barnes eventually moved into an apartment nearby on Bentley Avenue with
his girlfriend (Maddy). In December 2020, Barnes asked P.P. to spend the night. P.P.
asked her father’s permission: “I was afraid that if I didn’t listen to him, something bad
was either going to happen to me, like, physically being hurt or just something * * * bad
was going to happen.” Later, when “everything came out,” Barnes threatened that he
would make her life a living hell if she told anybody. Her father allowed her to spend the
night because he trusted Barnes.
{¶9} Barnes decided to go “exploring,” i.e., visit abandoned buildings, that
evening with P.P. and a friend (Jake). Barnes bought beer and allowed P.P. to drink
some of it. They spent the evening in an abandoned factory in Warren. After dropping
Jake off, Barnes drove around for maybe an hour in the Warren area before stopping
behind a church where he and P.P. engaged in fellatio, cunnilingus, and vaginal
intercourse.3
2. These events are the basis for Count 2 Rape.
3. These events are the basis for Counts 3-5 Rape and 9 Furnishing Beer or Intoxicating Liquor to
Underage Person.
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{¶10} P.P.’s aunt (Maricella) eventually moved to Lordstown. After an incident
involving P.P. running away, she was sent to live with her aunt for a few months.
Sometime after P.P.’s thirteenth birthday (May 2021), there was a party at the Lordstown
house. Barnes was there and he gave P.P. beer to drink. After she had gone to bed,
Barnes came to her room and told her to meet him outside. He told her to climb out the
bathroom window because there were surveillance cameras in the house. P.P. debated
whether she should go, “but, again, I was scared of saying ‘no’ and what if he came back.”
Barnes was drunk and “could be capable of anything.”
{¶11} Once outside, Barnes led P.P. through the garage into the basement where
they engaged in fellatio. P.P. returned to her room through the bathroom window. As
she was climbing inside, she knocked over a stand of toilet paper which worried her
because Barnes told her “that if anybody found out * * * [it] could be very bad for him.”4
{¶12} While P.P. was staying at her aunt’s house, her aunt bought her a journal
to write down her feelings. She described the incident with Barnes in the journal in an
entry dated May 30, 2021. She admitted some of the details in the journal were not true,
such as she removed his clothing whereas Barnes actually removed his own clothes.
{¶13} On Father’s Day, P.P. was with her father when he received a call from her
aunt. Shortly after that Barnes arrived and spoke to her alone. He told her she cannot
write things like what she wrote in her journal and that she would have come up with a
lie. P.P. told her father that the journal was a fantasy about wanting to sleep with her
cousin. After that, P.P. returned to her father’s house.
4. These events are the basis for Counts 6 Unlawful Sexual Conduct with a Minor and 10 Furnishing Beer
of Intoxicating Liquor to Underage Person.
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{¶14} In August 2021, P.P. and her father had an argument and she walked over
to Barnes’ house. Barnes told her that her father was looking for her and she should hide
in the backseat of his car. Barnes then left with his girlfriend. P.P. saw her father arrive
at the house, knock on the door, and then leave. P.P. spent the night at Barnes’ house
and returned home the next day.5
{¶15} P.P. described an incident where she and Barnes were almost caught. He
had taken her late at night to Waddell Park in Niles. They were interrupted by the
approach of a police car. Barnes told her to hide in the woods and he would tell the officer
that he was at the park for a run after working a late shift.
{¶16} Sometime later “towards fall,” Barnes texted P.P. that she should come over
to his house. Once there, he had her engage in fellatio.6 They were interrupted by his
girlfriend. P.P. left and eventually returned home. Later that evening, she admitted to
her father that Barnes had been raping her.
{¶17} Zachary Zigmont, a police officer with the City of Niles, testified that, at
about 4:30 a.m. on August 17, 2021, he encountered Barnes in Waddell Park. Barnes
was out of his vehicle and claimed that he was at the park running after getting off of a
midnight shift.
{¶18} Raul Posadas testified that, prior to her moving to Ohio, P.P. was in the
custody of her grandparents who lived in Texas. He confirmed that Barnes would babysit
P.P. and that P.P. was expected to listen to him. After its discovery, Barnes presented
5. These events are the basis for Count 8 Interference with Custody.
6. These events are the basis for Count 7 Unlawful Sexual Conduct with a Minor.
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him with P.P.’s journal describing the fellatio, and P.P. explained that she was writing
about another Barnes who lived in Texas.
{¶19} On the night that P.P. revealed that she and Barnes had been having sex,
Raul contacted Barnes and had P.P. confront him with the accusation. The manner in
which Barnes responded to and denied the accusation convinced Raul that P.P. was
telling the truth. He decided he wanted Barnes’ confession before going to the authorities.
The following day, Raul repeatedly texted Barnes that they needed to talk. When Barnes
responded, Raul recorded the conversation which was played for the jury. During the
conversation, Barnes admitted to sleeping with P.P. Raul deleted the texts he sent to
Barnes before surrendering his phone to the police, although they were later recovered.
{¶20} Wesley Washington, a police officer for the City of Niles, testified that, on
August 23, 2021, he took the initial police report from Raul of the allegations against
Barnes. He attempted to interview Barnes’ girlfriend but she asserted her right against
self-incrimination.
{¶21} Rasheeda Kalam, a pediatric social worker at the Akron Children’s Hospital
in Boardman, testified that she interviewed P.P. in the emergency room on August 23,
2021. P.P. reported being the victim of sexual assault and rape. She reported recent
sexual activity taking place on August 20. P.P. volunteered that the perpetrator provided
alcohol, vapes, and marijuana as a “reward.”
{¶22} Monique Malmer, a nurse practitioner in the Child Advocacy Center at the
Akron Children’s Hospital in Boardman, observed the medical diagnostic interview of P.P.
by Melanie Deluca and, afterwards, conducted a physical examination on August 31,
2021. P.P. reported that during the initial time that penetration of the vagina occurred
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there was pain that would continue into the following day. The physical examination did
not reveal evidence of physical injury or sexually transmitted disease.
{¶23} Elva Wyandt, an aunt of both P.P. and Barnes, testified that she and her
family were visiting with Maricella on Memorial Day weekend in 2021. They had dogs
with them that are prone to barking. Elva has known P.P. from a young age and noted
that she has difficulty telling the truth.
{¶24} Maricella Posadas testified that she leased the house on Hartzell Avenue
where she, Barnes, Raul and P.P. used to live. P.P. would use her iPad and conduct
searches for sexual subjects. Eventually Maricella moved in with her boyfriend in
Lordstown. On Memorial Day weekend in 2021, she slept in the living room with their
dogs. P.P.’s bedroom in the Lordstown residence had its own window that was larger
than the one in the bathroom.
{¶25} Joshua Barnes, age thirty at the time of trial, testified and denied ever
babysitting P.P. He denied the events associated with the “exploring” episode in
December 2020. He denied the events associated with Memorial Day 2021. He admitted
the encounter with Officer Zigmont in Waddell Park, but claimed he was there to go
running and that P.P. was not present. He admitted that P.P. spent the night at his
apartment on Bentley Avenue while she and her father were fighting. He denied hiding
her in his car or otherwise trying to interfere with her father’s custody.
{¶26} Barnes testified that he did not invite P.P. to his apartment on August 20,
2021. He was taking a nap that day and awoke to find P.P. on him. His clothes had been
removed and his girlfriend saw him before he could get P.P. to leave. When he spoke
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with Raul, he admitted to having sex with P.P. because he thought Raul would not report
it to the police if he confessed privately.
{¶27} Following the conclusion of testimony, the jury found Barnes guilty of all
counts of the Indictment.
{¶28} On May 24, 2022, a sentencing hearing was held and, on June 8, 2022, the
trial court issued its Entry on Sentence. The court sentenced Barnes as follows: for each
count of Rape (Counts 1 to 5), life in prison with the possibility of parole after twenty-five
years; for each count of Unlawful Sexual Conduct with a Minor (Counts 6 and 7), thirty-
six months in prison; for Interference with Custody (Count 8), one hundred and eighty
days in jail; and for each count of Furnishing Beer or Intoxicating Liquor to Underage
Person (Counts 9 and 10), thirty days in jail. The sentences were ordered to be served
concurrently for an aggregate sentence of life with the possibility of parole after twenty-
five years.7
{¶29} On June 21, 2022, Barnes filed a Notice of Appeal. On appeal, he raises
the following assignments of error:
[1.] The State failed to present sufficient evidence to prove appellant
compelled P.P. to su[b]mit to sexual conduct by force or threat of
force to warrant the imposition of a sentence of 25 years to life.
[2.] Appellant’s conviction was against the manifest weight of the
evidence.
7. On August 16, 2022, the trial court issued a Nunc Pro Tunc Entry on Sentence correcting the date of
Barnes’ birth.
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[3.] The trial court erred when it denied Appellant’s R. 29 motion for
acquittal as to counts three, four, and five of the Indictment.
[4.] The trial court erred in overruling Appellant’s objection to hearsay
statements thereby depriving Appellant of his right to a fair trial.
[5.] The admission of Monique Malmer’s opinion regarding the
veracity of P.P. was improper.
{¶30} The assignments of error will be addressed out of order. The last two
assignments challenging the admission of evidence will be addressed first.
{¶31} “[A] trial court is vested with broad discretion in determining the admissibility
of evidence in any particular case, so long as such discretion is exercised in line with the
rules of procedure and evidence.” Rigby v. Lake Cty., 58 Ohio St.3d 269, 271, 569 N.E.2d
1056 (1991). A trial court “does not have the discretion to admit evidence that is clearly
not permitted by law * * * such as whether testimony constitutes hearsay.” State v. Davis,
11th Dist. Lake No. 2019-L-170, 2021-Ohio-237, ¶ 133. In such cases, the lower court’s
evidentiary ruling is reviewed de novo. Id.{¶32} In the fifth assignment of error, Barnes argues that the trial court improperly
allowed Monique Malmer to testify that the results of P.P.’s medical examination “were
consistent with her disclosure of sexual abuse,” and, thus, “the jury heard testimony from
an expert which suggested that P.P. was truthful in her disclosure.” Brief of appellant at
27. According to Barnes, this testimony violates the rule that “[a]n expert may not testify
as to the expert’s opinion of the veracity of the statements of a child declarant.” State v.
Boston, 46 Ohio St.3d 108, 545 N.E.2d 1220 (1989), syllabus.
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{¶33} Barnes mischaracterizes Malmer’s testimony as opinion testimony as to
whether P.P. was being truthful. Rather, her testimony was that the absence of physical
injury is not inconsistent with the reported sexual abuse. Such testimony is simply not
probative of whether the reported sexual abuse actually occurred. At best, it forestalls
the possible inference by the trier of fact that an absence of physical injury would mean
that P.P. is lying. The argument advanced by Barnes has been addressed by the Ohio
Supreme Court:
The argument * * * fails to distinguish between expert testimony that
a child witness is telling the truth and evidence which bolsters a
child’s credibility insofar as it supports the prosecution’s efforts to
prove that a child has been abused. Boston’s syllabus excludes
expert testimony offering an opinion as to the truth of a child’s
statements (e.g., the child does or does not appear to be fantasizing
or to have been programmed, or is or is not truthful in accusing a
particular person). It does not proscribe testimony which is additional
support for the truth of the facts testified to by the child, or which
assists the fact finder in assessing the child’s veracity.
State v. Stowers, 81 Ohio St.3d 260, 262-263, 690 N.E.2d 881 (1998).
{¶34} The fifth assignment of error is without merit.
{¶35} In the fourth assignment of error, Barnes argues that the trial court erred in
admitting, over the objection of defense counsel, the hearsay testimony of Rasheeda
Kalam that P.P. reported Barnes giving her alcohol, vapes, and marijuana as a reward.
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{¶36} Ohio Evidence Rule 803 provides that statements made for purposes of
medical diagnosis or treatment “are not excluded by the hearsay rule, even though the
declarant is available as a witness.” The exception is applied to the following: “Statements
made for purposes of medical diagnosis or treatment and describing medical history, or
past or present symptoms, pain, or sensations, or the inception or general character of
the cause or external source thereof insofar as reasonably pertinent to diagnosis or
treatment.” Evid.R. 803(4). The Staff Notes further provide: “The exception is limited to
those statements made by the patient which are reasonably pertinent to an accurate
diagnosis and should not be a conduit through which matters of no medical significance
would be admitted.”
{¶37} In applying Evidence Rule 803(4) to a child’s statements, the Ohio Supreme
Court has stated that the issue is “whether [the] statements were made for purposes of
diagnosis and treatment rather than for some other purpose.” State v. Muttart, 116 Ohio
St.3d 5, 2007-Ohio-5267, 875 N.E.2d 944, ¶ 47. “The trial court’s considerations of the
purpose of the child’s statements will depend on the facts of the particular case.” Id. at ¶
49. “[A]fter considering the circumstances surrounding a child victim’s statements,” the
court “retains the discretion to admit the testimony.” Id. at ¶ 48. “[T]he fact that
information gathered for medical purposes is subsequently used by the state does not
change the fact that the statements were made for medical diagnosis and treatment.”
State v. Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742, 933 N.E.2d 775, ¶ 43.
{¶38} In the present case, P.P. underwent the “SCAN” (suspected child abuse or
neglect) procedure in the emergency room of the Akron Children’s Hospital in Boardman.
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After speaking with Kalam, P.P. was examined by a doctor. Kalam described the
procedure thusly:
[W]hen the child arrives, they’re triaged and the nurse takes their
blood pressure, their weight, and makes sure there’s no immediate
medical concerns. And then they’re taken to a room. A social worker
is contacted. And then we interview the parents and the patient
separately. And we get the history of the presenting situation. * * *
We’re working alongside the doctor throughout the process. * * *
After I talk to the parent, I’ll talk to the doctor, give them the
information that the parent has given me and then I’ll talk to the
patient. And then I’ll go back and talk to the doctor again. And then
I’ll make the referrals. Along with the outside referrals, like Children
Services and the police, we also contact the Child Advocacy Center.
And depending on if it’s physical or sexual abuse, they kind of lead
us and the doctor on what additional medical exams, if needed, to
give the child.
{¶39} We find no abuse of discretion in the admission of the hearsay regarding
Barnes supplying P.P. with alcohol, vapes, and marijuana. Statements regarding the use
of alcohol, nicotine, and/or recreational drugs by a thirteen-year-old child are certainly
relevant to proscribing care and treatment for that child. Contrary to Barnes’ position,
such information reasonably includes the source of the substances and/or the manner in
which the child obtained them. Nor does anything in the circumstances surrounding
Kalam’s interview of P.P. suggest a purpose other than medical diagnosis when the
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statements were made. While P.P.’s disclosure to Kalam may have been prejudicial to
Barnes, it did not violate the hearsay rules. State v. Smith, 12th Dist. Clermont No.
CA2019-10-075, 2020-Ohio-4008, ¶ 46 (statements made to social workers that, inter
alia, Smith “supplied [the victim] with alcohol, * * * were all answers to questions designed
to determine the extent of the abuse * * * and were made for the purpose of forming a
medical diagnosis”); State v. Caldwell, 2013-Ohio-5017, 1 N.E.3d 858, ¶ 35 (8th Dist.)
(statements made to “Dr. Mark Feingold about domestic violence, neglect, and alcohol
problems in the victim’s home * * * risk factors correlat[ing] with abusive injuries to children
* * * were made for purposes of medical diagnosis and treatment”).
{¶40} The fourth assignment of error is without merit.
{¶41} The first three assignments of error challenge the sufficiency and manifest
weight of the evidence.
{¶42} Criminal Rule 29(A) provides that “[t]he court * * * shall order the entry of a
judgment of acquittal of one or more offenses charged * * * if the evidence is insufficient
to sustain a conviction of such offense or offenses.” In reviewing the sufficiency of the
evidence, “[t]he 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.” State v. Jenks, 61 Ohio St.3d
259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶43} Whereas “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 State v. Thompkins, 78 Ohio
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St.3d 380, 386-387, 678 N.E.2d 541 (1997). “[A] reviewing court asks whose evidence
is more persuasive—the state’s or the defendant’s?” Id. An appellate court must
consider all the evidence in the record, the reasonable inferences, the credibility of the
witnesses, and 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.” (Citation omitted.) Thompkins at 387. “Since there must
be sufficient evidence to take a case to the jury, it follows that ‘a finding that a conviction
is supported by the weight of the evidence necessarily must include a finding of
sufficiency.’” (Citation omitted.) State v. Heald, 11th Dist. Lake Nos. 2021-L-111 and
2021-L-112, 2022-Ohio-2282, ¶ 19.
{¶44} In the first assignment of error, Barnes challenges the five counts of Rape
(Counts 1 to 5) and a single count of Furnishing Beer or Intoxicating Liquor to Underage
Person (Count 9) on the grounds of sufficiency.
{¶45} With respect to the Rape counts, Barnes maintains that there was
insufficient evidence that he compelled P.P. to submit by force or threat of force to impose
a prison term of twenty-five years to life.
{¶46} When an offender is convicted of Rape and “[t]he other person is less than
thirteen years of age,” “the court shall impose * * *[i]f the offender purposely compels the
victim to submit by force or threat of force * * * a minimum term of twenty-five years and
a maximum of life imprisonment.” R.C. 2907.02(A)(1)(b) and R.C. 2971.03(B)(1)(c).
“‘Force’ means any violence, compulsion, or constraint physically exerted by any means
upon or against a person of thing.” R.C. 2901.01(A)(1). “The force and violence
necessary in rape is naturally a relative term, depending upon the age, size and strength
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of the parties and their relation to each other * * *.” (Citation omitted.) State v. Eskridge,
38 Ohio St.3d 56, 58, 526 N.E.2d 304 (1988).
{¶47} The Ohio Supreme Court has held that “[a] person in position of authority
over a child under thirteen may be convicted of rape of that child with force pursuant to
R.C. 2907.02(A)(1)(b) * * * without evidence of express threat of harm or evidence of
significant physical restraint.” State v. Dye, 82 Ohio St.3d 323, 695 N.E.2d 763 (1998),
syllabus.
We recognize that it is nearly impossible to imagine the rape of a
child without force involved. Clearly, a child cannot be found to have
consented to rape. However, in order to prove the element of force
necessary to sentence the defendant to life imprisonment, the statute
requires that some amount of force must be proven beyond that force
inherent in the crime itself. Yet “‘[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.’” Eskridge,
38 Ohio St.3d at 58-59, 526 N.E.2d at 306, citing State v. Fowler
(1985), 27 Ohio App.3d 149, 154, 27 OBR 182, 187, 500 N.E.2d 390,
395.
Id. at 327-328.
{¶48} We find that sufficient evidence existed that Barnes compelled P.P. to
submit by force or threat of force to sustain the Rape convictions. Common to all the
counts is the fact that Barnes held a position of authority over P.P. – her father trusted
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Barnes and she was expected to obey him – and that there is a seventeen-year difference
in age between them. When the abuse began in January 2019, P.P. was ten years old
and Barnes was twenty-seven years old. P.P. testified repeatedly that she believed she
had to be compliant or else she would get in trouble or something bad would happen to
her.
{¶49} It is worth noting that P.P. had been living in Ohio for less than a month
when the abuse started. She did not have a firm relationship with her father and no prior
experience with her cousin Barnes. It is also worth noting that P.P. claimed that she was
molested in Texas although the matter was not pursued. When P.P.’s father confronted
Barnes about her allegations, he reproached him with, “after everything you knew that kid
went through down in Texas, man, you knew she was abused down there.” When asked
why she did not refuse to go with Barnes, P.P. explained: “If you’re a ten-year-old girl who
has been raised on always, you know, respecting your elders and not knowing whether
people are going to believe you or if you’re going to get hurt physically and, you know,
you’re already mentally exhausted from lying, it’s kind of hard * * *.”
{¶50} With respect to the first two counts of Rape, on New Year’s Eve and New
Year’s Day, we note P.P.’s testimony that she believed he stopped because she was
uncomfortable (“I wasn’t saying anything”) and he did not want her “to freak out on him.”
While this testimony is of dubious value as to what Barnes was actually thinking, it does
demonstrate P.P.’s own state of mind during the incidents. Notably, these two incidents
were followed by several months of grooming activity until the sexual conduct escalated
in May. Particular to the latter three counts of Rape, in December 2020, we note that
Barnes had been driving P.P. around all night and that they had been drinking. When
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Barnes asked her into the back seat, P.P. testified: “him being in charge of me and stuff
and me not wanting to say ‘no,’ I – I went in the back seat with him.” Again, the foregoing
demonstrates the minimal elements of force necessary to support the convictions.
Compare State v. Lawson, 11th Dist. Lake No. 2021-L-133, 2022-Ohio-3972, ¶ 40 (the
victim testified “she never tried to stop Appellant’s conduct” because “she was afraid he
would do something to her because he was bigger”) and 41 (the victim “testified that her
mother told her Appellant was in charge and to ‘obey’ him when she was in his care”);
State v. Skeins, 11th Dist. Trumbull No. 2017-T-0018, 2018-Ohio-134, ¶ 46 (“A.K.’s
statements that Skeins ‘made’ her squeeze his penis and ‘made’ her go upstairs and then
he put his penis in her mouth satisfy this minimal force requirement especially in light of
her young age at the time and the fact that Skeins was acting as caregiver”).
{¶51} Barnes also argues under this assignment of error that there was insufficient
evidence to convict him of Furnishing Beer or Intoxicating Liquor to Underage Person as
charged in Count 9 (December 2020), i.e., that he did “buy beer or intoxicating liquor for
an underage person” or that he did “furnish it to an underage person.” R.C. 4301.69(A).
“P.P. did not testify that Appellant bought the beer for her or that he furnished it to her,”
but, rather, that P.P. was thirsty and so proceeded to “get a beer.” Brief of appellant at
17.
{¶52} Whether Barnes purchased the beer to share with P.P. or not is irrelevant.
It was his beer and he allowed her to drink it. The evidence is that Barnes purchased
beer and that he, his friend, and P.P. drank it while driving around. This court has
construed “furnish” to mean “supply” and “provide.” State v. Skaggs, 97 Ohio App.3d 15,
19, 646 N.E.2d 190 (11th Dist.1994). That fairly describes Barnes’ conduct in allowing
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P.P. to get one of his beers. Compare State v. Harris, 6th Dist. Lucas No. L-85-057, 1986
WL 5941, *6 (“[t]he girls drank the beer in appellant’s presence and with her full
knowledge”).
{¶53} The first assignment of error is without merit.
{¶54} In the third assignment of error, Barnes argues that there was insufficient
evidence of venue to sustain the convictions related to the December 2020 exploring
episode, i.e., Rape (Counts 3 to 5) and Furnishing Beer or Intoxicating Liquor to Underage
Person (Count 9).
{¶55} “Under Article I, Section 10 and R.C. 2901.12, evidence of proper venue
must be presented in order to sustain a conviction for an offense.” State v. Hampton, 134
Ohio St.3d 447, 2012Jo-Ohio-5688, 983 N.E.2d 324, ¶ 20. “Although it is not a material
element of the offense charged, venue is a fact which must be proved in criminal
prosecutions unless it is waived by the defendant.” State v. Headley, 6 Ohio St.3d 475,
477, 453 N.E.2d 716 (1983). “Therefore, a ‘conviction may not be had’ if the state fails to
prove beyond a reasonable doubt that the defendant committed the alleged offense or an
element of the offense in the charging county.” (Citation omitted.) State v. Foreman, 166
Ohio St.3d 204, 2021-Ohio-3409, 184 N.E.3d 70, ¶ 13.
{¶56} On the night in question, J.J. testified as follows regarding the time between
dropping Barnes’ friend off and the sexual incidents behind a church: “At this point, I had
no idea where we were because we drove around for, like, maybe an hour [after dropping
the friend off]. I had no idea what city or what county we were in, but we were pretty
close. That’s all I knew.” Barnes maintains that this testimony is insufficient to prove that
the conduct occurred in Trumbull County.
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{¶57} We find no deficiency in the State’s evidence with respect to venue. Ohio’s
venue statute provides: “When the offense or any element of the offense was committed
in [a] * * * motor vehicle, * * * and it cannot reasonably be determined in which jurisdiction
the offense was committed, the offender may be tried in any jurisdiction through which
the * * * motor vehicle * * * passed.” R.C. 2901.12(B). Here, the Rapes occurred in the
backseat of Barnes’ vehicle, which unquestionably passed through Trumbull County
inasmuch as Barnes’ residence was located in Trumbull County. The statute additionally
provides: “When an offender, as part of a course of criminal conduct, commits offenses
in different jurisdictions, the offender may be tried for all of those offenses in any
jurisdiction in which one of those offenses or any element of one of those offenses
occurred.” R.C. 2901.12(H). Evidence that “[t]he offenses were committed as part of the
same * * * chain of events” constitutes “prima-facie evidence of a course of criminal
conduct.” R.C. 2901.12(H)(3). Here, P.P. testified that Barnes purchased the beer that
he furnished her with in Niles. Thus, one of the offenses in the chain of events culminating
in the Rapes occurred in Trumbull County thereby establishing venue for all the offenses.
See State v. Keeton, 5th Dist. Richland No. 03 CA 43, 2004-Ohio-3676, ¶ 45-61
(discussing venue pursuant to R.C. 2901.12(B) and (H)(3)).
{¶58} The third assignment of error is without merit.
{¶59} In the second assignment of error, Barnes argues that his convictions are
against the manifest weight of the evidence, primarily on the grounds that “P.P.’s
testimony in this case is questionable as her veracity is doubtful at best.” Brief of appellant
at 17. He notes the considerable evidence that P.P. is not always truthful. As she
confided in her journal, “I still lie and I can never tell the truth.” That she would lie and
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otherwise be disobedient was also confirmed by the testimony of her father and aunts.
Barnes maintains this undermines P.P.’s claims that she felt compelled to submit to him
out of a respect for authority.
{¶60} Barnes also points out that there were discrepancies between the testimony
given by the State’s witnesses. For example, P.P.’s testimony regarding the incident with
the journal differed from her father’s (she testified that she explained the journal entry as
fantasy and he testified that she claimed it was about a boy in Texas). Barnes asserts
that portions of P.P.’s testimony are inherently incredible, such as her sneaking out the
bathroom window without waking the house guests or dogs or that she would sneak out
the bathroom window when her bedroom had its own window. Finally, Barnes complains
of the lack of substantive police investigation to corroborate P.P.’s allegations and lack of
corroborating physical evidence.
{¶61} Although Barnes raises valid points for consideration, his arguments do not
compel the conclusion that his convictions constitute a manifest miscarriage of justice
such that a new trial must be ordered. None of the points raised by Barnes necessarily
demonstrate that P.P. was fabricating the allegations against him. Moreover, there is
corroborating evidence to support those allegations. The journal entry is evidence of
sexual conduct between P.P. and Barnes. After the journal’s discovery, Barnes continued
to interact with P.P. even without her father’s knowledge. P.P.’s account of the incident
in Waddell Park is no more unlikely than Barnes’ account, i.e., it is just as probable that
she was present as it is that he would have told her about running in the park one morning.
Barnes admitted that his girlfriend discovered them engaged in sexual activity. His
explanation that P.P. entered his home and initiated the activity without his awareness is
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dubious. Lastly, Barnes admitted that he was having sexual intercourse with P.P.
Assuming, arguendo, that Barnes only made the admission in an attempt to dissuade
P.P.’s father from revealing the allegations to the family and/or authorities, it is a
remarkably damning admission nonetheless.
{¶62} When considering the evidence in the record on balance, the present case
is one in which deference to the trier of fact’s resolution of conflicts in the evidence is
merited. State v. Wymer, 11th Dist. Trumbull No. 2021-T-0014, 2022-Ohio-4795, ¶ 47
(“[w]hile an appellate court engages in a limited weighing of the evidence considering
challenges based on the manifest weight of the evidence, the court nevertheless shows
some deference to the trier of fact’s determinations regarding the import and credibility of
the evidence”) (cases cited).
{¶63} The second assignment of error is without merit.
{¶64} For the foregoing reasons, Barnes’ convictions are affirmed. Costs to be
taxed against the appellant.
JOHN J. EKLUND, P.J,
MARY JANE TRAPP, J.,
concur.
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