State v. Howard , 2014 Ohio 3373 ( 2014 )

[Cite as State v. Howard, 2014-Ohio-3373.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
STATE OF OHIO C.A. No. 13CA010372
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
JOHN P. HOWARD COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellant CASE No. 11CR082569
DECISION AND JOURNAL ENTRY
Dated: August 4, 2014
WHITMORE, Judge.
{¶1} Appellant, John Howard, appeals from his convictions in the Lorain County Court
of Common Pleas. This Court affirms.
I
{¶2} On March 27, 2011, S.L. reported to her mother that she had just been raped by a
man in their neighborhood. S.L. then told her mother, for the first time, that the same man had
raped her a couple of months prior, sometime in early 2011.
{¶3} According to S.L. she had first met the man, later identified as Howard, when she
and her sister were selling candy bars in the neighborhood for the school orchestra. S.L. testified
that Howard purchased twelve or twenty candy bars and let them keep the candy. Sometime
thereafter, in early 2011, S.L. went to Howard’s house to see if he would like to buy some
jewelry that she had made. According to S.L., when she knocked on his back door, Howard said
his wife might like to purchase some earrings and invited her inside. S.L. testified that, when she
2
went inside, Howard closed the door, locked it, and told her to take her clothes off. S.L. said she
was scared and noticed a black and brown handgun within Howard’s reach. S.L. stated that
Howard then came over to her and started kissing her, lifted her shirt, and put his hand down her
pants. According to S.L., Howard then lifted her bra and sucked on her breasts. He then
unbuttoned his pants, pulled his penis out of the hole in his underwear, and forced her to perform
oral sex. S.L. said that, after a couple of minutes, Howard pushed her to the ground and
vaginally raped her. She stated that about five minutes later, Howard just stopped, got up, and
told her to get out. S.L. testified that she got up, put on her clothes, grabbed her earring kit,
unlocked the door and left. S.L. said that, as she was leaving, Howard told her not to tell anyone
or he would kill her and her family.
{¶4} S.L. testified that the next time she saw Howard was on March 27, 2011.
According to S.L., on that day, she had biked down the street to the elementary school to see if
the tetherball poles were up. As she was making her way back home, Howard approached her
from behind. According to S.L., Howard lifted his shirt, revealing a handgun in his waist, and
told her to come with him or he would shoot her. S.L. testified that they went across the street to
his house where he raped her again. S.L. said Howard again threatened to kill her and her family
if she told anyone. S.L. then biked home and told her mother what had happened.
{¶5} Howard was indicted on four counts of kidnapping, four counts of rape, and two
counts of intimidating a victim. These charges stemmed from the allegations that S.L. was raped
in early 2011 and on March 27, 2011. After a jury trial, Howard was acquitted of the charges
related to the allegation of early 2011. These included: two counts of rape, two counts of
kidnapping with sexual motivation specifications, and one count of intimidating a victim. As to
the charges related to March 27, 2011, the jury found Howard guilty on the two counts of
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kidnapping with attendant specifications, one count of rape with a firearm specification, and one
count of intimidating a victim. The jury acquitted him of the remaining rape charge connected to
March 27, 2011.
{¶6} After merging the second kidnapping count into the first, the court sentenced
Howard to: (1) three years for kidnapping, a violation of R.C. 2905.01(A)(2), a felony of the first
degree; (2) seven years for rape, a violation of R.C. 2907.02(A)(2), a felony of the first degree;
and (3) twelve months for intimidating a victim, a violation of R.C. 2921.04(B), a felony of the
third degree. The court ordered the kidnapping, rape, and firearm specification to all be served
consecutively, for an aggregate prison term of 13 years. Howard now appeals and raises three
assignments of error for our review. To facilitate the analysis, we rearrange his assignments of
error.
II
Assignment of Error Number Two
THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE OF GUILT
AND THEREFORE IT WAS ERROR FOR DEFENDANT TO HAVE BEEN
FOUND GUILTY BEYOND A REASONABLE DOUBT AS TO EVERY
ELEMENT OF RAPE, KIDNAPPING, AND INTIMIDATION OF AN
ATTORNEY, VICTIM OR WITNESS[.]
{¶7} In his second assignment of error, Howard argues that his convictions are not
supported by sufficient evidence. We disagree.
{¶8} “‘[S]ufficiency’ is a term of art meaning that legal standard which is applied to
determine whether the case may go to the jury or whether the evidence is legally sufficient to
support the jury verdict as a matter of law.” State v. Thompkins, 78 Ohio St.3d 380, 386 (1997),
quoting Black’s Law Dictionary 1433 (6th Ed.1990). “In essence, sufficiency is a test of
adequacy.” Thompkins at 386. When reviewing a conviction for sufficiency, evidence must be
4
viewed in a light most favorable to the prosecution. State v. Jenks, 61 Ohio St.3d 259 (1991),
paragraph two of the syllabus. The pertinent question is whether “any rational trier of fact could
have found the essential elements of the crime proven beyond a reasonable doubt.” Id.{¶9} “Whether the evidence is legally sufficient to sustain a verdict is a question of
law.” Thompkins at 386, citing State v. Robinson, 162 Ohio St. 486 (1955). This Court,
therefore, reviews questions of sufficiency de novo. State v. Salupo, 177 Ohio App.3d 354,
2008-Ohio-3721, ¶ 4 (9th Dist.).
{¶10} R.C. 2905.01, in relevant part, states that “[n]o person, by force, threat, or
deception * * * shall remove another from the place where the other person is found or restrain
the liberty of the other person * * * [t]o facilitate the commission of any felony * * * [or] * * *
[t]o engage in sexual activity * * * with the victim against the victim’s will[.]” Any person that
violates this statute is guilty of kidnapping. R.C. 2905.01(C)(1).
{¶11} R.C. 2907.02(A)(2) states 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.” Whoever violates this section is guilty of rape. R.C. 2907.02(B).
{¶12} R.C. 2921.04(B)(1) provides that “[n]o person, knowingly and * * * by unlawful
threat of harm to any person * * * shall attempt to influence, intimidate, or hinder * * * [t]he
victim of a crime * * * in the filing or prosecution of criminal charges * * *[.]” “A person acts
knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a
certain result or will probably be of a certain nature. A person has knowledge of circumstances
when he is aware that such circumstances probably exist.” R.C. 2901.22(B).
{¶13} Howard argues that the evidence is insufficient to support his convictions because
the State did not present any evidence to corroborate S.L.’s allegations. Specifically, Howard
5
argues, there was no witness that testified to her kidnapping, which occurred during daylight
hours, and Howard’s testimony “rebutted S.L.’s testimony.”
{¶14} S.L. testified that on March 27, 2011, at approximately 4:45 p.m., she went across
the street to her friend’s house to play. After a short conversation with her friend, the two
decided that S.L. would ride her bike down the street to the elementary school to see if the
tetherball poles were up while the friend finished some household chores. S.L. testified that she
rode her bike south1 on Prospect Street to the school and saw that the tetherball poles were not
up. She then exited the south-west side of the playground and travelled east on Elm Street
toward Prospect to head back home. S.L. said that, as she was walking her bike approaching the
intersection of Elm and Prospect, she heard something and turned around. According to S.L.,
when she turned around she saw Howard. S.L. testified that he lifted his shirt, revealing a black
and brown gun in his waist band, and told her to come with him or he would shoot her.
{¶15} S.L. testified that she recognized Howard immediately from the prior encounter
and was too afraid to run away because she was worried he would shoot her. Howard then
followed S.L. to his house, at the south-east corner of Elm and Prospect. S.L. said that, when
they reached the back door to his house, Howard opened the door and “kind of pushed [her]
inside.” According to S.L., Howard then closed the door, placed his gun on the kitchen counter,
and drank a can of beer. S.L. stated that Howard offered her beer, but she declined. He then
approached her and started kissing her on the mouth and touching her breasts. S.L. testified that
Howard then kissed her neck, lifted her shirt and bra, and kissed and sucked her breasts. Howard
1
S.L. did not testify to the cardinal direction she travelled and the exhibits admitted do not
contain a compass. For ease of discussion, we assume the maps admitted are oriented with North
at the top of the page and use that orientation throughout our discussion.
6
then put his hand down the back of her pants and squeezed her buttocks. S.L. said she kept
telling Howard that she had to leave, but he kept saying that she was not going anywhere.
{¶16} S.L. testified that Howard then pushed her into the adjoining dining room, where
she saw “bullets and guns and papers.” Howard pushed her down on her knees, pulled down his
pants, and pulled his penis out through the hole in his underwear. S.L. said that he then put his
penis in her mouth. According to S.L., Howard began moving back and forth and grunting while
his penis was in her mouth. S.L. estimated that this lasted two or three minutes. According to
S.L., Howard then pulled his penis out of her mouth, pushed her to the ground, and pulled her
pants down until they were below her knees. Howard pulled his pants down a little lower, got
down on his knee and penetrated her vagina with his penis. S.L. testified that his penis did not
go very far inside of her because she told him she had to leave or her mother would be coming to
look for her. S.L. said Howard then stood up and told her to go, but that she had to come back
the following day at 1:30 to help him clean. S.L. stated that as she was leaving Howard told her
not to tell anyone or he would shoot her and her family. S.L. testified that she rode her bike
home and told her mother that she had been raped.
{¶17} S.L.’s mother called the police and Officer Melissa Lett, of the Oberlin Police
Department, responded. After a lengthy interview, S.L. got into Officer Lett’s patrol car and
directed her to Howard’s house. S.L. later identified Howard in a photo line-up as the man that
had raped her.
{¶18} S.L.’s testimony, if believed, provides sufficient evidence to support a conviction
of rape, kidnapping, and intimidation of a victim. See R.C. 2905.01(A)(2), (4); R.C.
2907.02(A)(2); and R.C. 2921.04(B)(1). A victim’s testimony does not need to be corroborated.
See State v. Melendez, 9th Dist. Lorain No. 08CA009477, 2009-Ohio-4425, ¶ 30. Viewing the
7
evidence in a light most favorable to the State, there is sufficient evidence to support Howard’s
convictions. Howard’s second assignment of error is overruled.
Assignment of Error Number Three
THE VERDICT OF GUILTY AS TO RAPE, KIDNAPPING, AND
INTIMIDATION OF AN ATTORNEY, VICTIM OR WITNESS WAS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE[.]
{¶19} In his third assignment of error, Howard argues that his convictions are against
the manifest weight of the evidence. We disagree.
{¶20} A conviction that is supported by sufficient evidence may still be found to be
against the manifest weight of the evidence. Thompkins, 78 Ohio St.3d at 387. “Weight of the
evidence concerns ‘the inclination of the greater amount of credible evidence, offered in a trial,
to support one side of the issue rather than the other.’” (Emphasis sic.) Id. at 387, quoting
Black’s Law Dictionary 1594 (6th Ed.1990).
In determining whether a criminal 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). “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 fact[-]finder’s resolution of the
conflicting testimony.” Thompkins at 387, quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982). An
appellate court should exercise the power to reverse a judgment as against the manifest weight of
the evidence only in exceptional cases. Otten at 340.
8
{¶21} The State presented eight witnesses: S.L. and her mother, three police officers, a
sexual assault nurse examiner, and two forensic scientists from Ohio’s Bureau of Identification
and Investigation (“BCI”).
Melody Wright
{¶22} Melody Wright, S.L.’s mother, testified that she and her husband have five
children, four of them adopted. S.L. is the youngest. Wright explained that S.L. had been
removed from her biological family when she was 18 months old and spent a brief time living
with a family member. S.L. was then transferred to a foster home, and subsequently adopted by
Wright and her husband when S.L. was four years old. Wright testified to S.L.’s emotional
difficulties, which Wright attributed to S.L.’s difficult start in life. Wright stated that S.L. had
been diagnosed with post-traumatic stress disorder and reactive attachment disorder and was
regularly seeing a therapist. Wright said that most of S.L.’s medical diagnoses were related to
her panic attacks and that she took medication regularly to address her mental health issues.
Wright denied that S.L.’s prescription drugs affected her ability to communicate, understand, or
view reality.
{¶23} Wright testified that on March 27, 2011, S.L. had gone to a friend’s house for a
barbeque and had returned home at approximately 4:30 p.m. Unbeknownst to Wright at the
time, S.L. received permission from her father to go across the street to another friend’s house to
play. Wright said she was in the bathroom when she heard the front door slam and S.L. scream
for her. According to Wright, S.L. was crying and could not catch her breath. S.L. eventually
told Wright that she had been raped. Wright called S.L.’s therapist and asked her what to do.
Wright then called the police. While waiting for the police, S.L. asked Wright if she could brush
9
her teeth, take a shower, and change her clothes. Wright told her that she would have to wait
until she spoke to the police.
{¶24} Wright testified that Officer Melissa Lett arrived at the house shortly after
Wright’s call. Wright stated that Officer Lett interviewed S.L. in the living room. She said S.L.
had calmed down a little bit, but was still crying and in shock. S.L. was sitting in a chair holding
a stuffed animal. Wright said she did not remember much about the interview except that S.L.
was afraid and upset. After the interview, Wright and S.L. got into the back of Officer Lett’s
patrol car and S.L. directed Officer Lett to Howard’s home. Wright then took S.L. to a local
medical center for a rape examination.
Officer Melissa Lett
{¶25} Officer Lett testified that she responded to Wright’s call at approximately 5:45
p.m. According to Officer Lett, S.L. was sitting in a chair hugging a pillow and would
sometimes have her head in the pillow when she was speaking. It took Officer Lett some time to
build a rapport with S.L. before she began telling Officer Lett what had happened. Officer Lett
estimated that she spent three hours with S.L. She described the interview with S.L. as a very
difficult one because S.L. was crying, breathing heavy, withdrawn, and very soft spoken.
{¶26} Officer Lett recapped what S.L. had told her had happened. According to Officer
Lett, S.L. said she had ridden her bike to the local elementary school to see if the tetherball poles
were up. As S.L. was making her way home, Howard stopped her, lifted his shirt, and showed
her a black handgun sticking out of his pants. S.L. told her that Howard’s gun was similar to her
service weapon, a Glock semi-automatic pistol. S.L. told Officer Lett that he placed his hand on
his gun and told her to come with him or he would shoot her. S.L. said that she then followed
Howard to his house, they entered the back door, and Howard closed and locked the door behind
10
them. Officer Lett testified that S.L. then told her that Howard walked over and put his gun
down on the kitchen counter by a stool, drank some beer and offered her some, which she
declined. Officer Lett said S.L. told her that Howard then approached her and started kissing her
on the lips and neck. Howard began lifting S.L.’s shirt and she kept telling him she had to leave,
but he did not listen. Officer Lett stated that S.L. told her that Howard had lifted her shirt and
bra and started touching her breast and “put his mouth” on her.
{¶27} Officer Lett indicated that S.L. told her that Howard then sat back down on the
kitchen stool and pulled his penis out through the hole in his underwear and put it in her mouth.
S.L. could not remember exactly what type of pants Howard was wearing but told Officer Lett
that they were dark, possibly blue, and were similar to Officer Lett’s uniform pants. S.L. told
Officer Lett that Howard had on grey underwear. According to Officer Lett’s report, S.L. then
told her that Howard moved her into the dining room, pulled down her pants and underwear, and
put her on the dining room table where “he put his thing in her thing.” S.L. then told Officer Lett
that Howard told her she was “tight.” Officer Lett stated that S.L. told him that he was hurting
her and that she had to go because her mom would be coming to look for her. Howard then
stopped and let her go, but told her that she needed to return the following day at 1:30 to help
him clean and that if she told anyone he would shoot her or kill her family.
{¶28} Officer Lett acknowledged that she wrote in her report that S.L. told her that the
vaginal rape occurred on the dining room table, but said it was entirely possible that S.L. said the
rape happened near, and not on, the table. Officer Lett testified that S.L. was difficult to
understand at points in the interview because she had her head in a pillow and was very soft
spoken. Additionally, there were long periods of silence during the interview during which S.L.
11
would put her head in her pillow and cry. Officer Lett testified that she only interviewed S.L. the
one time and ended the interview when she felt that she had enough information.
{¶29} S.L. described the inside of Howard’s home to Officer Lett and the vehicles in the
driveway. She told Officer Lett that there were “a lot of guns” in the house and an old pinball
machine. Officer Lett testified that S.L. and Wright got into the back of her cruiser and S.L.
directed Officer Lett to Howard’s house. Officer Lett said S.L. appeared to be “very scared” and
“ducked down” to hide as they passed Howard’s house. Officer Lett then told Wright to take
S.L. to a local medical center for a rape examination.
Nurse Sheri Sycz
{¶30} Sheri Sycz is a sexual assault nurse examiner at the Nord Center. Sycz testified
that she began her examination of S.L. at approximately 10:30 p.m. According to Sycz, the
examination took longer than normal because it was very hard to get S.L. to talk. Sycz described
S.L. as “disheveled,” “anxious,” and “afraid.” Sycz said S.L. told her she was afraid that
Howard would kill her and her family. Sycz tried to reassure her that she was safe and spent
some time building a rapport with S.L. before she eventually opened up about what had
happened. According to Sycz, her report included direct quotes of S.L.’s statements, but that
S.L. did not describe the events in chronological order. Instead, her statements were “kind of
scrambled around,” which, according to Sycz, is normal for a victim.
{¶31} According to Sycz’s report, S.L. told her that she was “walking in the
neighborhood” when Howard came outside and “pulled his shirt up and showed [her] his gun.”
He told her to come inside. When she went inside he locked the door and told her to sit down.
He then kissed her on her neck and told her to get on her knees. S.L. kept telling him she had to
go home, but he ignored her. Howard then told her he wanted to see her breasts and pulled up
12
her shirt and sucked on them. He then pulled her pants and underwear down and put his “thing”
in her. She told him that she had to leave or her mother would come looking for her. He then
said okay and let her go, but told her if she told he would kill her and her family. He also told
her she had to come back the following day at 1:30. Sycz’s report stated that S.L. said he was
“obviously drunk” and that she did not think he wanted to hurt her. S.L. told Sycz that after a
prior incident, Howard had told her that he loved her and that he would marry her, and when she
told him that she was only 13 years old, he said “even better.”
{¶32} Sycz testified that S.L. did not have any obvious physical injuries, but that she has
never seen injuries in a child from rape because children usually do not fight. Sycz did note that
S.L. had redness on the inner part of her vaginal area, which indicated “rigorous friction.”
Sycz’s admitted that redness of the labia minora could be explained by reasons other than sexual
intercourse, such as riding a bike. However, Sycz explained that in those instances you would
expect to also see redness on the outside of the vagina too. S.L. did not have any redness on the
outside of her vagina.
Officer William Flesch
{¶33} Officer William Flesch of the Oberlin Police Department executed an arrest
warrant for Howard on March 29, 2011. Officer Flesch testified that he waited until Howard left
his home and then radioed for uniformed officers to assist. According to Officer Flesch, it was a
routine felony stop in which several officers arrested Howard with their guns drawn. Howard
was taken into custody without incident.
{¶34} Approximately 15 minutes after being arrested, Officer Flesch gave Howard his
Miranda warnings and conducted an interview. In the interview, Howard asked if this was about
the girl that was at his house a couple of days prior. Howard admitted to Officer Flesch that S.L.
13
was at his house on March 27th. He said that he had met her about a year before when she had
cleaned his house, but had not seen her since, until she appeared at his door on March 27th.
Howard told Officer Flesch that S.L. appeared at his door on March 27th and asked if he had any
work for her because she needed money for school. When he said yes, she started kissing him.
Howard told S.L. that they could not do that, but said he did not ask her to leave because he did
not think it was a big deal. He then walked over and sat on the kitchen stool. S.L. then
approached him and kissed him again. Howard said that he again told her no. Howard told
Officer Flesch that there was no sexual contact, and that his mouth did not touch any other part
of her body.
Sergeant Victor Ortiz
{¶35} Sergeant Victor Ortiz with the Oberlin Police Department executed the search
warrant of Howard’s home on March 29, 2011. Sergeant Ortiz described Howard’s home as “a
little messy” with a lot of guns and clothes lying around. Sergeant Ortiz testified that he found a
loaded Makarov semi-automatic handgun on the kitchen counter next to a stool. Sergeant Ortiz
also recovered a BB gun from the dining room, and four handguns from the living room. Also in
the living room was a cabinet with ammunition and an old pinball machine.
{¶36} In addition to the guns, Sergeant Ortiz confiscated the glass top to Howard’s
dining room table because he was told that the rape occurred on the table by either Officer Lett
or Flesch. Sergeant Ortiz also collected a pair of underwear from the dining room and a pair of
pants and underwear from in front of the washer and dryer, located just off of the kitchen.
Forensic Evidence
{¶37} Jennifer LaCava, a forensic scientist in the biology and DNA section of BCI,
testified that she conducted an analysis of S.L.’s rape kit. LaCava testified that no semen was
14
identified in the samples, but that result did not necessarily mean that no contact occurred.
LaCava did identify amylase on the skin swabs from S.L.’s neck and breasts. She explained that
amylase is a component of saliva, but is also found in other bodily fluids, such as mucus.
LaCava testified that it is possible for a person to have amylase on his or her hand by coughing
into it. LaCava said that it is further possible for a person to transfer that amylase from his or her
hand by touch. The amylase test, according to LaCava, is just a screening tool that is used to
identify samples to be forwarded on for DNA testing.
{¶38} LaCava also tested certain articles of clothes that were submitted by BCI. She
tested S.L.’s bra, tank top, and sweater for semen, but no semen was found. LaCava tested
S.L.’s bra and the two pairs of Howard’s underwear for amylase. LaCava stated that amylase
was identified on both sides of S.L.’s bra and on the interior panel of one pair of Howard’s
underwear. LaCava said she then passed those items on for DNA testing.
{¶39} Stacy Violi, a forensic scientist at BCI, conducted the DNA testing. Violi
conducted DNA testing on swabs taken as part of S.L.’s rape kit. Violi tested swabs taken from
S.L.’s underwear, swabs from her breasts, and swabs from her neck. Only S.L.’s DNA was
found on the swabs of her underwear and her breasts. Violi did identify a partial profile on the
swab of S.L.’s neck, but was unable to draw any conclusion from that profile because the amount
of DNA obtained was insufficient for comparison.
{¶40} Violi then tested S.L’s bra and two pairs of Howard’s underwear. As to the bra,
Violi testified that DNA consistent with S.L. and Howard was found on the interior of S.L.’s bra.
DNA consistent with S.L., Howard, and an unknown individual was found on the exterior of the
bra. Violi explained that “[b]ased on the national database provided by the Federal Bureau of
Investigation, the expected frequency of occurrence of the DNA profile not attributed to [S.L.]
15
on the swab from the interior of the bra cups * * * is 1 in 2,795,000,000,000,000,000 unrelated
individuals.” Violi further testified that the population of the Earth is approximately
7,000,000,000.
{¶41} Violi testified that she also found DNA on the two pairs of Howard’s underwear.
One pair contained DNA of Howard and an unknown individual. The other pair, contained DNA
profiles consistent with Howard, S.L., and an unknown individual on the exterior front panel.
Violi explained that “[b]ased on the national database provided by the Federal Bureau of
Investigation, the proportion of the population that cannot be excluded as possible contributors to
the mixture of DNA profiles on the swab from the exterior front panel of John Howard’s
underwear * * * is 1 in 16,720 unrelated individuals.” Violi testified that the reason this statistic
reflects a more common DNA profile is because the DNA found contained a mixture of different
profiles. “When you have a mixture of DNA * * * you have to account for all of the DNA that’s
there and any kind of combination. So it makes the profile more common.”
{¶42} Violi testified that DNA can be transferred by touch, but that the further the
degree of transfer the less likely there is to be a detectable amount of DNA. For example, if
DNA is transferred to another by kissing, then that person put his finger in his mouth, and then
he touches something, it is possible that he would transfer the DNA of the person that kissed
him. However, because it is a third degree transfer, it is not as likely to result in a detectable
amount of DNA as would a direct transfer. Violi did state that it was possible to transfer
amylase (which contains DNA) from a woman’s breast to the interior of her bra and that a source
of DNA that is wet is more likely to transfer by touch than a source that is dry. Violi also
testified that it is extremely unlikely to detect foreign skin cells left in a rape victim’s mouth or
16
vagina with the type of testing that BCI performs. Therefore, unless semen is found, DNA
testing is not performed on samples taken from a victim’s mouth or vagina.
{¶43} LaCava testified that the Oberlin Police Department attempted to submit a large
amount of evidence, some twenty or thirty items, for testing. However, BCI policy is to accept
the “best items first.” According to LaCava, BCI typically accepts five items or less initially, but
will accept later submissions if necessary.
Dr. Pilar Lachhwani
{¶44} The defense presented two witnesses, Dr. Pilar Lachhwani and Howard.
{¶45} Dr. Pilar Lachhwani is a child psychiatrist with Applewood Centers. As part of
Dr. Lachhwani’s duties she does psychiatric evaluations and pharmacological management of
patients. Dr. Lachhwani testified that she reviewed S.L.’s file and met with S.L. for thirty
minutes to manage her prescription drugs. Dr. Lachhwani did not diagnose S.L. with any of the
conditions noted in her file. Dr. Lachhwani did testify to S.L.’s various diagnoses and generally
described each diagnosis. According to Dr. Lachhwani, S.L. was diagnosed with: Bipolar II,
severe with psychotic features; Post-Traumatic Stress Disorder (“PTSD”); Reactive Attachment
Disorder (“RAD”); Oppositional Defiant Disorder (“ODD”); Impulse Control Disorder (“ICD”);
and Atypical Pervasive Development (“APD”).
{¶46} Dr. Lachhwani explained that a Bipolar II disorder, severe with psychotic features
diagnosis, “means that the person ha[s] discrete periods of depression sometimes, sometimes
with hypomanic or manic episodes, and during those times she exhibited at some point
psychoses, which means having visual or auditory hallucinations[.]” A person suffering from
PTSD has symptoms “in which they experience in any thoughts, in any images, in any scene, or
anyplace, recollections of [a] trauma.” RAD “is a disorder in which a child shows since early
17
infancy social difficulties.” Specifically, the child has difficulty developing a sense of
attachment to his or her caregiver. Dr. Lachhwani testified that RAD is frequently seen in foster
children because foster children often have repeated changes in their caregivers. ODD is a
disorder where the person is “at times not compliant with the rules, mainly at home or the
school.” ICD is related to “outbursts, aggressive rages that people may have intermittently with
no apparent triggers, or many times too much to what the reason was for that rage.” APD is a
diagnosis when someone is “a little bit social awkward.” Where a person “lack[s] the judgment
to really read social clues.”
{¶47} Dr. Lachhwani testified that S.L.’s RAD and ICD diagnoses dated back to 2007
and 2008, respectively. These diagnoses, therefore, pre-dated the rape on March 27, 2011. As to
the RAD diagnosis, Wright, S.L.’s adoptive mother, testified that she was aware of this diagnosis
prior to S.L.’s adoption and that it was related to her rough start in life. S.L. was removed from
her biological parents at 18 months and spent a brief time living with other family members
before being transferred to foster care. S.L. was eventually adopted by Wright and her husband
at the age of four. Dr. Lachhwani explained that RAD is diagnosed when a child has difficultly
developing attachment to his or her caregiver and is common in foster children.
{¶48} Wright testified that she was not aware of S.L.’s ICD diagnosis, but that she was
aware of S.L.’s mental issues and that S.L. was involved in intensive therapy. Wright explained
that most of S.L.’s issues were related to her “panic attacks.” According to Wright, S.L. would
“just kind of shut down.” S.L. testified that she was currently attending the Positive Education
Program, a school for children with special needs. S.L. stated that she was enrolled in the school
because of behavioral problems. S.L. explained that she sometimes gets angry and out of
control.
18
{¶49} Dr. Lachhwani testified that S.L. was diagnosed with PTSD and ODD on March
29, 2011, and with bipolar on April 17, 2012. These diagnoses, therefore, post-date the rape on
March 27, 2011. Dr. Lachhwani did testify that a traumatic event, such as rape, could result in
PTSD. Wright testified that she was aware that S.L. had been previously diagnosed with PTSD
when she was younger, and that they had “dealt with that.” As to the bipolar diagnosis, Wright
said she was unaware of the diagnosis but did acknowledge that, in 2012, S.L. had heard voices
telling her to hurt herself and had she had been hospitalized multiple times. Again, this diagnosis
occurred after the rape on March 27, 2011.
John Howard
{¶50} Howard also testified in his defense. Howard said that he met S.L. in April or
May of 2010 when she approached him outside of his house selling candy bars for school.
Howard bought two candy bars for five dollars and told her to keep the candy and sell it to
someone else. According to Howard, S.L. then asked if he had any work she could do for
money. He told her that he would pay her to do some housework, and S.L. told him she would
be back the following day. Howard said S.L. did return the following day, while he was out
doing yard work. He took her inside the house, showed her the kitchen, dining room, foyer, and
living room. He showed her how to work the vacuum and how to dust the furniture. Howard
said he then went back outside to finish the yard work while she cleaned. He came back inside
approximately 30 to 45 minutes later and looked around. He testified that she did a good job so
he thanked her, paid her seven dollars, and she left.
{¶51} Howard said the next time he saw S.L. was on March 27, 2011, when she came to
his door. According to Howard, he was in the process of cleaning out his refrigerator when he
heard a knock at the back door. He turned, saw S.L., and went to let her inside. He asked her
19
how she’d been and she said she was okay but needed twenty-five dollars for school. Howard
said S.L. then grabbed him and kissed him, putting her tongue in his mouth. Howard explained
that he pulled back and said she could not do that. He then walked around the kitchen counter
and sat on a stool. According to Howard, S.L. again talked about needing money for school.
She then put her fingers in her mouth, picked up her sweater, and made a circular motion with
her hand underneath her sweater while walking toward him. Howard testified that S.L. walked
up between his legs, stuck her hand in the waistband of his pants, grabbed his arm with her other
hand and pulled him toward her, and kissed him again. Howard said he jumped up from the
stool and told her that she could not do that. He became upset and started coughing and spitting
up phlegm into his hand because of his emphysema. Howard then went to the bathroom, leaving
S.L. alone in the kitchen.
{¶52} In the bathroom, Howard said he pulled down his pants a bit and pulled his penis
out through the hole in his underwear to urinate. He did not wash his hands before or after using
the restroom. Howard explained that the only way his DNA could have been on S.L.’s bra was
from when she kissed him, put her fingers in her mouth, and then rubbed her breasts. Howard
explained that S.L.’s DNA on his underwear must have been from her transferring DNA into his
mouth by kissing, then him coughing phlegm into his hand, then him touching himself when he
used the restroom.
{¶53} Howard testified that S.L. was still in the kitchen by the stool when he returned.
S.L. offered to return the following day to clean, but Howard said he told her that was not a good
idea and asked her to leave. Howard said S.L. then left, riding her bike. At some point after S.L.
left, Howard noticed twenty dollars was missing from his kitchen counter. According to
Howard, he had sat at the kitchen counter and counted a stack of money earlier that day. He said
20
he had $347 and made out a deposit slip for $327 because he wanted to keep $20. At some point
after S.L. left, Howard recounted the stack of money and only had $327. Howard admitted that
it was possible that one of the tenants from upstairs could have taken the money from the counter
when he was not in the kitchen. The police found $327 on Howard when he was arrested.
{¶54} Howard admitted that he left many details out of his statement to Officer Flesch,
including that S.L. had put her fingers in her mouth and rubbed her breasts, and that he was
missing twenty dollars. Howard said he was confused during the interview because he did not
know what was going on. He did not know what the charges were against him and had been
warned that his statements might be used against him. Howard described himself as a seventy-
year-old man with numerous health problems. He said he has COPD and severe emphysema.
He has had open heart surgery, three back surgeries, and three abdominal surgeries. Despite
these health problems, Howard testified that he is able to move around and, in April or May
2010, was able to perform yard work.
{¶55} Howard testified that he lawfully owns the guns that were found in his home. He
said that he always keeps the Makarov in one of two places in the kitchen. The other guns are
sometimes kept on the coffee table in the living room. He explained that he always keeps his
guns loaded otherwise he saw no sense in owning them. Howard admitted that it was unwise to
leave S.L., a girl he did not know, in his home alone with loaded firearms to clean his house in
2010 and when he went to use the restroom on March 27, 2011.
Conclusion
{¶56} Howard argues that his convictions are against the manifest weight of the
evidence, in essence, because S.L. is not credible. Howard cites to minor differences in S.L.’s
trial testimony with the testimony of various witnesses relaying what S.L. had told them on
21
March 27, 2011. Howard further argues that S.L.’s testimony is not credible because it makes no
sense that S.L. would take the long way home from the playground on March 27, 2011, which
would have taken her by his house; a house in which she was allegedly attacked in months prior.
{¶57} In reaching its verdict, the jury chose to believe S.L., at least in part, over
Howard. “[T]his Court will not overturn the trial court’s verdict on a manifest weight of the
evidence challenge only because the trier of fact chose to believe certain witnesses’ testimony
over the testimony of others.” State v. Manso, 9th Dist. Summit No. 26727, 2014-Ohio-1388, ¶
26, quoting State v. Brown, 9th Dist. Wayne No. 11CA0054, 2013-Ohio-2945, ¶ 42. The jury is
in the best position to “view the witnesses and observe their demeanor, gestures and voice
inflections, and use these observations in weighing the credibility of the proffered testimony.”
State v. Peterson, 9th Dist. Summit No. 25592, 2012-Ohio-250, ¶ 31, quoting State v. Cook, 9th
Dist. Summit No. 21185, 2003-Ohio-727, ¶ 30. “Additionally, in reaching its verdict, the jury is
free to believe all, part, or none of the testimony of each witness.” Prince v. Jordan, 9th Dist.
Lorain No. 04CA008423, 2004-Ohio-7184, ¶ 35.
{¶58} After a review of the record, we cannot conclude that this is the exceptional case
where the jury clearly lost its way and created a manifest miscarriage of justice. See Otten, 33
Ohio App.3d at 340. Howard’s third assignment of error is overruled.
Assignment of Error Number One
THE TRIAL COURT COMMITTED PLAIN AND REVERSIBLE ERROR
WHEN IT FAILED TO FIND RAPE IN VIOLATION OF R.C. 2907.02(A)(2)
AND KIDNAPPING IN VIOLATION OF R.C. 2905.01(A)(2) and 2905.01(A)(4)
ARE ALLIED OFFENSES OF SIMILAR IMPORT AND ARE ONE
CONVICTION FOR PURPOSES OF SENTENCING AND MERGE FOR
PURPOSES OF SENTENCING[.]
22
{¶59} In his first assignment of error, Howard argues that his convictions for rape and
kidnapping are allied offenses of similar import, and therefore, the court committed plain error
by sentencing him on both counts.
{¶60} “R.C. 2941.25 codifies the protections of the Double Jeopardy Clause of the Fifth
Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution,
which prohibits multiple punishments for the same offense.” State v. Underwood, 124 Ohio
St.3d 365, 2010-Ohio-1, ¶ 23. R.C. 2941.25 provides as follows:
(A) Where the same conduct by defendant can be construed to constitute two or
more allied offenses of similar import, the indictment or information may contain
counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant’s conduct constitutes two or more offenses of dissimilar
import, or where his conduct results in two or more offenses of the same or
similar kind committed separately or with a separate animus as to each, the
indictment or information may contain counts for all such offenses, and the
defendant may be convicted of all of them.
Thus, “[t]wo or more offenses may result in multiple convictions if: (1) they are offenses of
dissimilar import; (2) they are separately committed; or (3) the defendant possesses a separate
animus as to each.” State v. Litten, 9th Dist. Summit No. 26812, 2014-Ohio-577, ¶ 51. An
appellate court applies a de novo standard of review when determining whether offenses merge
pursuant to R.C. 2941.25. State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, ¶ 12.
{¶61} A plurality of the Ohio Supreme Court set forth a two-part test to analyze whether
two offenses are allied offenses of similar import. See State v. Johnson, 128 Ohio St.3d 153,
2010-Ohio-6314, ¶ 47-50. First, the court must determine “whether it is possible to commit one
offense and commit the other with the same conduct, not whether it is possible to commit one
without committing the other.” (Emphasis sic.) Id. at ¶ 48. Second, “[i]f the multiple offenses
can be committed by the same conduct, then the court must determine whether the offenses were
23
committed by the same conduct, i.e., ‘a single act, committed with a single state of mind.’” Id. at
¶ 49, quoting State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, ¶ 50 (Lanzinger, J.,
dissenting). If the answer is yes, the offenses will merge. Johnson at ¶ 50.
{¶62} Howard was convicted of: (1) rape, in violation of R.C. 2907.02(A)(2); (2)
kidnapping, in violation of R.C. 2905.01(A)(2), and (3) kidnapping, in violation of R.C.
2905.01(A)(4). The court found that the two kidnapping counts were allied offenses and the
State elected to have Howard sentenced on R.C. 2905.01(A)(2).
{¶63} R.C. 2907.02(A)(2) states 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.” R.C. 2905.01(A)(2), in relevant part, states that “[n]o person, by force, threat, or
deception * * * shall remove another from the place where the other person is found or retrain
the liberty of the other person * * * [t]o facilitate the commission of any felony * * * .”
{¶64} It has been well recognized that kidnapping is implicit in every forcible rape. See
State v. Logan, 60 Ohio St.2d 126, 130 (1979). See also State v. Anderson, 9th Dist. Summit No.
26640, 2014-Ohio-1206, ¶ 7-8. “Therefore, the crucial inquiry in this case is whether [Howard]
committed kidnapping and rape separately or with a separate animus so that the two offenses
would not merge.” Anderson at ¶ 8. In Logan, the Ohio Supreme Court set forth a test to
determine whether kidnapping and rape were committed with a separate animus.
(a) [W]here the restraint is prolonged, the confinement is secretive, or the
movement is substantial so as to demonstrate a significance independent of the
other offense, there exists a separate animus as to each offense sufficient to
support separate convictions;
(b) Where the asportation or restraint of the victim subjects the victim to a
substantial increase in risk of harm separate and apart from that involved in the
underlying crime, there exists a separate animus as to each offense sufficient to
support separate convictions.
24
Logan at syllabus.
{¶65} S.L. testified that she was walking her bike approaching the north-west corner of
Elm and Prospect when she turned around and saw Howard. According to S.L., Howard lifted
his shirt, revealing a handgun tucked into the waist of his pants, and told her to come with him or
he would shoot her. He then walked her to his house at the south-east corner of Elm and
Prospect. S.L. testified that she went with Howard because she believed he would shoot her.
S.L. said he opened the back door and “kind of pushed [her] inside.” He then closed the door,
walked across the kitchen and put his gun on the counter, and began drinking a beer. After
drinking some beer, Howard approached S.L., who was still standing near the door, and began
kissing her. S.L. testified that Howard then moved her into the dining room where he forced her
to perform oral sex and vaginally raped her.
{¶66} Under the circumstances of this case, we conclude that Howard committed
kidnapping and rape separately or with a separate animus. Howard accosted S.L. on the public
street and demanded that she go with him or he would shoot her. Howard took her to the privacy
of his home, where no one else was present. Secret confinement may signify a separate animus.
Logan at 135. See also State v. Lynch, 98 Ohio St.3d 514, 2003-Ohio-2284, ¶ 135 (“restraint
was secretive, as it took place inside [defendant’s] apartment.”). He then proceeded to sit in the
kitchen and drink beer; at this point in time the act of kidnapping was complete. See Anderson,
2014-Ohio-1206, ¶ 14 (kidnapping complete when defendant deceived victim into believing he
would drive her to church and before he drove her to a secluded location and raped her). The
specific facts of this case support a finding that the kidnapping and rape were committed
separately or with a separate animus. See State v. Hudson, 7th Dist. Mahoning No. 11 MA 77,
25
2013-Ohio-5529, ¶ 37 (rape and kidnapping do not merge when the restraint involved is more
than what was necessary for the forced sexual encounter).
{¶67} Howard’s first assignment of error is overruled.
III
{¶68} Howard’s assignments of error are overruled. The judgment of the Lorain 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 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.
BETH WHITMORE
FOR THE COURT
26
CARR, P. J.
MOORE, J.
CONCUR.
APPEARANCES:
MALLORY J. HOLMES, Attorney at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and MARY R. SLANCZKA, Assistant Prosecuting
Attorney, for Appellee.