State v. Thomas ( 2012 )

[Cite as State v. Thomas, 2012-Ohio-4139.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 26244
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
DARAN E. THOMAS COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 11 08 2151
DECISION AND JOURNAL ENTRY
Dated: September 12, 2012
WHITMORE, Presiding Judge.
{¶1} Defendant-Appellant, Daran Thomas, Jr., appeals from his conviction in the
Summit County Court of Common Pleas. This Court affirms.
I
{¶2} Thomas communicated with Tiesha Bewley on Facebook for several weeks
before the two agreed to meet. Thomas, who lived with his father, gave Bewley directions to his
street and met her outside when she arrived in her car. Thomas took Bewley inside where he
engaged in oral sex and vaginal intercourse with her. Bewley later drove home and contacted
her close friend. Bewley told her friend that Thomas had raped her, and the two went to St.
Thomas Hospital. Thomas soon learned that Bewley had accused him of rape and repeatedly
called her cell phone and sent her text messages for the next several days. Thomas also sent
Bewley the following message on Facebook: “stupid b***h RIP an best believe i meant it ima
find u.” (Sic.)
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{¶3} When the police interviewed Thomas, he initially stated that he never touched
Bewley because she was intoxicated. Thomas later admitted, however, that he had engaged in
both oral sex and vaginal intercourse with Bewley. He also admitted that he held her arms down
during the encounter. A grand jury indicted Thomas on one count of rape in violation of R.C.
2907.02(A)(2). The matter proceeded to a jury trial, at the conclusion of which the jury found
Thomas guilty. The court sentenced him to eight years in prison.
{¶4} Thomas now appeals from his conviction and raises two assignments of error for
our review. For ease of analysis, we reorder the assignments of error.
II
Assignment of Error Number Two
THE GREATER WEIGHT OF THE EVIDENCE PRESENTED AT TRIAL
DEMONSTRATED THAT APPELLANT DID NOT COMMIT THE OFFENSE,
THUS APPELLANT’S CONVICTION FOR RAPE WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
{¶5} In his second assignment of error, Thomas argues that his conviction is against the
manifest weight of the evidence. Specifically, he argues that the jury lost its way by choosing to
believe the State’s version of the events. We disagree.
{¶6} In determining whether a conviction is against the manifest weight of the
evidence an appellate court:
must review 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). A weight of the evidence challenge
indicates that a greater amount of credible evidence supports one side of the issue than supports
the other. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). Further, when reversing a
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conviction on the basis that the conviction was against the manifest weight of the evidence, the
appellate court sits as the “thirteenth juror” and disagrees with the factfinder’s resolution of the
conflicting testimony. Id. Therefore, this Court’s “discretionary power to grant a new trial
should be exercised only in the exceptional case in which the evidence weighs heavily against
the conviction.” State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). See also Otten, 33
Ohio App.3d at 340.
{¶7} Bewley testified that she began communicating with Thomas online in June 2011
and only knew him as “Tizz” because that was his online moniker. Bewley agreed to meet
Thomas on July 15, 2011, after she finished babysitting her godson. Bewley drove to Thomas’
house, and the two sat down in the living room. According to Bewley, Thomas began to tell her
that he loved her and wanted to marry her. Thomas then started kissing Bewley’s neck and
touching her body with his hands. Bewley stopped Thomas and told him that she did not want to
have sex. After a brief period, however, Thomas started touching Bewley again and tried to push
her down on the couch. Bewley repeatedly told Thomas “no” and that she did not want to
engage in sexual activity, but Thomas continued his advances, told Bewley “not to fight it,” and
threatened to hit her if she did not stop struggling. Thomas held Bewley’s arms back and
removed her shorts. He then performed oral sex on her while she tried to push him away.
Subsequently, Thomas stopped, climbed on top of Bewley, held her arms down, and engaged in
vaginal intercourse with her. Bewley testified that she was crying during the encounter, but
Thomas would not stop. Before she drove home, Bewley testified, Thomas apologized to her
and told her that he knew she did not feel the same way about him as he did about her.
{¶8} Bewley went to St. Thomas Hospital with a friend within a few hours of leaving
Thomas’ house. Yvonne Demyan, a registered nurse, performed Bewley’s exam and testified
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that Bewley did not appear to be intoxicated. The swabs that Nurse Demyan collected from
Bewley’s rape exam kit were later forwarded to the Bureau of Criminal Identification and
Investigation (“BCI”) for forensic analysis. Christine Hammett, a BCI forensic scientist,
identified semen on the samples from Bewley’s vaginal and anal swabs as well as amylase, a
component of saliva, on a swab of Bewley’s neck. Lynda Eveleth, another BCI forensic
scientist, conducted a DNA analysis on the swabs and compared her findings to a swab the
police obtained from Thomas. Eveleth testified that, because sperm cells were present on the
swabs taken from Bewley, she also was able to test those cells in her analysis. Eveleth
concluded that the other DNA profile she discovered on Bewley’s swabs was consistent with
Thomas’.
{¶9} Detective Robert Richardson testified that he went to St. Thomas Hospital to
conduct Bewley’s initial interview. He described Bewley as very withdrawn and soft-spoken
during the interview. Although Bewley only knew Thomas by the name “Tizz,” she was later
able to provide Detective Richardson with Thomas’ cell phone number because he repeatedly
had called Bewley and had sent her text messages after he learned that she had accused him of
rape. Detective Richardson compiled a photo array containing Thomas’ picture and another
detective presented the array to Bewley. Bewley positively identified Thomas in the array.
{¶10} Detective Richardson spoke to Thomas at the police station on the day of his
arrest. One of the officers who arrested Thomas wrote in his incident report that Thomas had
stated that “the victim was drunk and that he didn’t do anything.” The other arresting officer,
Officer Christopher Schnee, testified that Thomas stated: “I knew this was going to happen.
That is why I didn’t mess with that girl, she was so drunk.” When Thomas first spoke with
Detective Richardson, he also denied having had vaginal intercourse with Bewley. Later in the
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interview, however, Thomas admitted that he had sex with Bewley, he heard her say she did not
want to have sex, and he held down her arms to have sex with her. Similarly, Thomas initially
denied having performed oral sex on Bewley, but later admitted that he did so.
{¶11} Thomas testified that he and Bewley communicated for several months via
Facebook before she drove to his house on the night of July 15, 2011. Thomas denied that he
ever told the police he had not touched Bewley because she was intoxicated. According to
Thomas, Bewley immediately removed his penis from his shorts when she entered his house and
began fondling him. The two sat down on the couch where Thomas kissed Bewley’s neck and
she continued to fondle him. Thomas described Bewley’s behavior throughout the encounter as
“misleading.” Thomas stated that Bewley was “trying to play like she was not easy,” pushing
him away but then later allowing him to touch her. Thomas denied ever holding down Bewley’s
arms. According to Thomas, he only told Detective Richardson that he had held down Bewley’s
arms to avoid being repeatedly asked the same question. Although Thomas admitted that he
initially lied to the police, he insisted that he later told the truth when he stated that the sex he
had with Bewley was consensual. Yet, Thomas admitted on cross-examination that it was
possible Bewley had told him “no” when he had sex with her.
{¶12} Thomas also presented the testimony of his father, Daran Thomas, Sr., and his
father’s girlfriend, Alesia Code. Both testified that they shared a home with Thomas, they were
upstairs on the night of July 15, 2011, and they never heard any commotion or cries for help.
Bewley admitted, however, that she never screamed or yelled for help when Thomas forcibly
engaged in sexual activity with her. Bewley only testified that she told Thomas “no” and asked
him to stop. Moreover, while Thomas testified that both his father and Code came downstairs
during Bewley’s visit, neither Thomas, Sr. nor Code testified that they witnessed Thomas and
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Bewley engaging in any sexual activity. Thomas, Sr. testified that he came downstairs
immediately when Bewley arrived to see who had come to the house. Notably, Thomas, Sr. did
not testify that he saw Bewley fondling his son’s penis, as Thomas claimed that Bewley did as
soon as she entered the house.
{¶13} Based on our review of the record, we cannot conclude that the jury lost its way
by finding Thomas guilty of rape. A jury is free to believe or reject the testimony of each
witness, and issues of credibility are primarily reserved for the trier of fact. State v. Frazier, 9th
Dist. No. 25654, 2012-Ohio-790, ¶ 56. Further, “[a] verdict is not against the manifest weight of
the evidence because the jury chose to believe the State’s witnesses rather than the defense
witnesses.” State v. Andrews, 9th Dist. No. 25114, 2010-Ohio-6126, ¶ 28. The jury simply
chose to believe Bewley’s testimony that Thomas forcibly engaged in sexual activity with her.
Having reviewed the record, this is not the exceptional case where the jury clearly lost its way.
Otten, 33 Ohio App.3d at 340. Thomas’ rape conviction is not against the manifest weight of the
evidence. His second assignment of error is overruled.
Assignment of Error Number One
THE LIMITING INSTRUCTION GIVEN BY THE TRIAL COURT
REGARDING IMPROPER TESTIMONY WAS INSUFFICIENT TO CURE
THE PREJUDICIAL EFFECT OF SAID TESTIMONY; THEREFORE, THE
TRIAL COURT’S FAILURE TO DECLARE A MISTRIAL SUA SPONTE
CONSTITUTED PLAIN ERROR.
{¶14} In his first assignment of error, Thomas argues that the trial court committed plain
error when it failed to order a mistrial. We disagree.
{¶15} “Mistrials need be declared only when the ends of justice so require and a fair
trial is no longer possible.” State v. Franklin, 62 Ohio St.3d 118, 127 (1991). “The essential
inquiry on a motion for mistrial is whether the substantial rights of the accused are adversely
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affected.” State v. Wooden, 9th Dist. No. 21138, 2003-Ohio-1917, ¶ 33, quoting Wadsworth v.
Damberger, 9th Dist. No. 3024-M, 2000 WL 1226620, *2 (Aug. 30, 2000). If a defendant fails
to move for a mistrial once he discovers the grounds that would form the basis for his motion,
then he forfeits all but a claim of plain error. State v. Wood, 9th Dist. No. 06CA0044-M, 2007-
Ohio-2673, ¶ 21-23.
Under Crim.R. 52(B), [p]lain errors or defects affecting substantial rights may be
noticed although they were not brought to the attention of the court. By its very
terms, the rule places three limitations on a reviewing court’s decision to correct
an error despite the absence of a timely objection at trial. First, there must be an
error, i.e., a deviation from a legal rule. Second, the error must be plain. To be
plain within the meaning of Crim.R. 52(B), an error must be an obvious defect in
the trial proceedings. Third, the error must have affected substantial rights. We
have interpreted this aspect of the rule to mean that the trial court’s error must
have affected the outcome of the trial.
(Internal citations and quotations omitted.) State v. Barnes, 94 Ohio St.3d 21, 27 (2002). The
burden is on the party asserting plain error to prove that “the outcome ‘would have been different
absent the error.’” State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, ¶ 17, quoting State v.
Hill, 92 Ohio St.3d 191, 203 (2001).
{¶16} Thomas argues that the trial court should have sua sponte ordered a mistrial after
one of the State’s witnesses commented on the victim’s credibility. Specifically, the following
exchange took place during the State’s redirect examination of Nurse Demyan:
[PROSECUTOR:] * * * And as a health care provider, * * * your training and
your experience has been as a nurse for a decent amount of time, is your role in
carrying out your health care duties to question the truthfulness of what a patient
is telling you?
[NURSE DEMYAN:] No, ma’am. I am not supposed to ask whether they are
telling the truth or not. I take what they are telling me as the truth. They
wouldn’t be there if they weren’t telling the truth.
Defense counsel immediately objected to the foregoing statement, and the trial court sustained
the objection. The court also instructed the jury “to disregard the last statement.” Thomas never
8
requested a mistrial, but argues on appeal that a mistrial was warranted because the court’s
instruction was insufficient to cure Nurse Demyan’s improper statement.
{¶17} We do not agree that the trial court committed plain error by not ordering a
mistrial. Initially, we note that the prosecutor’s redirect examination of Nurse Demyan was the
result of the approach defense counsel employed on cross-examination. Defense counsel asked
Nurse Demyan all of the following questions:
[DEFENSE COUNSEL:] So the fact that they put rape on [a rape kit] doesn’t
mean a rape occurred, right?
***
[DEFENSE COUNSEL:] * * * [L]et’s say somebody was lying about being
sexually assaulted and they came in and told you that they were sexually
assaulted, would you still do the exam?
***
[DEFENSE COUNSEL:] * * * So if somebody came in and lied to you about
rape, you would do the same paperwork that you would do on a real rape; is that
correct?
***
[DEFENSE COUNSEL:] * * * If it was a false claim of rape, you would still put
somebody down as the perpetrator in your forms, right?
***
[DEFENSE COUNSEL:] Well, let me ask you, if you detected that somebody
might be lying to you in one of these exams, what would you do?
***
[DEFENSE COUNSEL:] * * * [Y]ou wouldn’t question anybody in that room,
would you, about whether they were sexually assaulted, that is not your job. Is
that what you are telling us?
Some of the responses Nurse Demyan gave to defense counsel’s cross-examination parallel the
response Thomas claims warranted a mistrial. For example, Nurse Demyan gave the following
responses to various questions on cross examination: “[m]y job is to take the sexual assault as
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[the victim] sees it”; “as far as I know [victims] are not lying to me”; and “[people who come to
the DOVE unit] have to be sexually assaulted for me to do a sexual assault exam.” Thomas fails
to explain how Nurse Demyan’s response to the State’s redirect examination meaningfully
differed from the responses his counsel elicited on cross-examination or why the invited-error
doctrine should not apply in this instance. See State v. Hairston, 9th Dist. No. 05CA008768,
2006-Ohio-4925, ¶ 50, quoting Lester v. Leuck, 142 Ohio St. 91 (1943), syllabus (“Invited error
prohibits a party from ‘tak[ing] advantage of an error which he himself invited or induced the
trial court to make.’”)
{¶18} In any event, Thomas has not shown that the outcome of the trial would have been
different even absent Nurse Demyan’s statement on redirect examination. See Payne, 114 Ohio
St.3d 502, 2007-Ohio-4642, at ¶ 17, quoting Hill, 92 Ohio St.3d at 203. The trial court
instructed the jury to disregard the improper statement and also later instructed the jury that
jurors “are the sole judges of the facts, the credibility of the witnesses[,] and the weight of the
evidence.” As this Court has repeatedly held, “[t]here is a presumption that the jury follows the
instructions given by the judge.” State v. Mohamed, 9th Dist. No. 11CA0050-M, 2012-Ohio-
3636, ¶ 27. Further, Bewley testified at trial, so the jurors were able to assess her credibility for
themselves. Bewley testified that Thomas forced her to engage in sexual activity, consistent with
her statements to the police. Meanwhile, Thomas admittedly lied to the police. Thomas has not
shown that the jury would not have convicted him even absent Nurse Demyan’s statement. As
such, he has not shown that the trial court committed plain error by failing to order a mistrial.
Thomas’ first assignment of error is overruled.
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III
{¶19} Thomas’ assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
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 Summit, 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.
BETH WHITMORE
FOR THE COURT
CARR, J.
BELFANCE, J.
CONCUR.
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APPEARANCES:
THOMAS M. DICAUDO, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.