State v. Artripe

[Cite as State v. Artripe, 2014-Ohio-4658.]
COURT OF APPEALS
KNOX COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Plaintiff - Appellee : Hon. John W. Wise, J.
: Hon. Craig R. Baldwin, J.
:
-vs- :
:
ROGER E. ARTRIPE : Case No. 14CA8
:
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Knox County Court
of Common Pleas, Case No.
13CR05-0083
JUDGMENT: Affirmed in part, Reversed in part,
and Remanded
DATE OF JUDGMENT: October 17, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CHARLES T. MCCONVILLE STEPHEN T. WOLFE
Knox County Prosecutor 1350 W. 5th Ave., Suite 119
Columbus, OH 43212
By: JOSEPH D. SAKS
Knox County Assistant Prosecutor
117 East High Street, Suite 234
Mount Vernon, OH 43050
Knox County, Case No. 14CA8 2
Baldwin, J.
{¶1} Appellant Roger E. Artripe appeals a judgment of the Knox County
Common Pleas Court convicting him of rape (R.C. 2907.02(A)(1)(b)) and gross sexual
imposition (R.C. 2907.05(A)(4)) and sentencing him to a term of life imprisonment with a
possibility of parole after fifteen years. Appellee is the State of Ohio.
STATEMENT OF FACTS AND CASE
{¶2} Appellant’s daughter Ashley contacted law enforcement on February 24,
2013, to report that her four-year-old stepdaughter, A.S., had informed her of improper
sexual conduct by appellant. Detective Tom Bumpus recommended that Ashley take
A.S. to the Center for Family Safety and Healing (hereinafter “Center”) at Nationwide
Children’s Hospital in Columbus for an examination.
{¶3} Det. Bumpus interviewed appellant, who admitted to babysitting A.S. on
Tuesdays. Appellant acknowledged putting cream or ointment on A.S., and while he
denied touching A.S., he told the detective that he suffered from memory lapses, and
might have touched A.S. during a “blackout session.”
{¶4} Kerri Wilkinson, a licensed social worker and forensic interviewer,
interviewed A.S. at the Center. The interview was videotaped. A.S. was asked to
identify body parts on anatomically correct drawings of a naked boy and girl. A.S.
identified the vaginal area as a “booger,” and the penis as a “booger.” A.S. told
Wilkinson that Papaw Roger puts his booger inside of her booger, and it hurts. She
also told Wilkinson that Papaw Roger’s booger goes inside of her butt, and it hurts.
A.S. told Wilkinson that slobber and pee come out of Papaw Roger’s booger when he
goes potty, and that his slobber is white.
Knox County, Case No. 14CA8 3
{¶5} After the interview, pediatric nurse practitioner Gail Hornor conducted a
physical examination of A.S. Hornor watched A.S.’s interview through closed circuit
television, and also discussed the interview with Wilkinson to determine the appropriate
medical examinations and testing. A.S. tested negative for sexually transmitted
diseases, and her anogenital examination was normal.
{¶6} On March 5, 2013, appellant’s daughter Amanda made an audio recording
of a confrontation she and her mother had with appellant concerning the allegations.
Appellant stated that he touched A.S., that he does not know why, and that he is getting
help.
{¶7} Appellant was indicted by the Knox County Grand Jury on one count of
rape and one count of gross sexual imposition. The case proceeded to jury trial.
{¶8} At trial, A.S. was found incompetent to testify, but the videotape of
Wilkinson’s interview with A.S. was admitted into evidence over appellant’s objection.
Appellant testified at trial that he sometimes babysat A.S. He testified that she had
soiled her pants, and he put her in the bathtub. When she got out of the tub, he noticed
that “her bottom was ate up,” either with diaper rash or bed bug bites. He put Desitin
ointment on her bottom. He testified that the guilt he felt was for putting diaper ointment
on an older child like A.S., rather than letting a female family member do it. He testified
that for the last ten years he had been unable to obtain an erection or ejaculate. His
wife also testified that for the last ten years, appellant was unable to perform sexually.
{¶9} Appellant was convicted of both charges. The trial court found that the
convictions merged, and sentenced appellant for rape. Because the victim was under
Knox County, Case No. 14CA8 4
the age of ten, the court sentenced appellant to a term of imprisonment of life with
possibility of parole in fifteen years. Appellant assigns four errors on appeal:
{¶10} “I. THE COURT ERRED WHEN IT PERMITTED THE INTRODUCTION
OF EVIDENCE THAT WAS IMPERMISSIBLE AS BOTH HEARSAY AND IN
VIOLATON OF APPELLANT’S RIGHT TO CONFRONT WITNESSES AGAINST HIM.
{¶11} “II. THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO
SUPPORT THE CONVICTIONS.
{¶12} “III. THE JURY’S VERDICTS WERE AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
{¶13} “IV. THE APPELLANT WAS PREJUDICED BY INEFFECTIVE
ASSISTANCE OF COUNSEL.”
I.
{¶14} In his first assignment of error, appellant argues that the court erred in
admitting into evidence the videotape of A.S.’s interview at the Center, as the video was
impermissible hearsay and violated his Sixth Amendment right to confront witnesses
against him.
{¶15} In State v. Arnold, 126 Ohio St. 3d 290, 933 N.E.2d 775, 2010-Ohio-2742,
the Ohio Supreme Court considered identical arguments concerning admission of a
videotape of a child victim interview conducted at the Center by a social worker/forensic
interviewer. As in the instant case, the victim was unavailable to testify.
{¶16} The Supreme Court noted that the objective of a child-advocacy center is
neither exclusively medical diagnoses and treatment, nor solely forensic investigation.
Id. at ¶29. Child advocacy centers are unique in that multidisciplinary teams cooperate
Knox County, Case No. 14CA8 5
so the child will not have to tell the story multiple times. Id. at ¶33. Thus, the interview
serves a dual purpose of gathering forensic information to investigate and potentially
prosecute a defendant for the offense, and eliciting information necessary for medical
diagnosis and treatment of the victim. Id.
{¶17} The Arnold court found that some of the statements the victim made in the
interview served primarily a forensic or investigative purpose and were therefore
testimonial in nature, including statements that the defendant shut and locked the
bedroom door before raping her, descriptions of where her mother and brother were
when she was in the bedroom with the defendant, descriptions of the defendant’s boxer
shorts and of him removing them, what the defendant’s “pee-pee” looked like, and her
statement that the defendant removed her underwear. Id. at ¶34. Because the
interviewer acted as an agent of the police in obtaining these statements, the court
proceeded to an analysis of whether the primary purpose of the interrogation was to
meet an ongoing police emergency. The court concluded that the primary purpose of
the interview was not to meet an ongoing emergency, but rather to further the state’s
forensic investigation, and the statements were thus inadmissible without a prior
opportunity for cross-examination pursuant to the Confrontation Clause. Id. at ¶36,
citing Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177
(2004).
{¶18} However, other statements made to the interviewer were necessary for
medical treatment, including that Arnold touched the victim’s “pee-pee,” that his “pee-
pee” went inside her “pee-pee,” that Arnold’s “pee-pee” touched her butt, and that
Arnold’s hand and mouth touched her “pee-pee.” Id. at ¶38. The court concluded that
Knox County, Case No. 14CA8 6
these statements were nontestimonial and there was no basis in the law for concluding
that the interviewer’s dual capacity rendered these statements inadmissible. Id. at ¶41.
Rather, the trial courts through in limine procedure should redact or exclude the portions
of any statement that have become testimonial in nature. Id. The Arnold court
remanded the case to the court of appeals to consider whether the admission of the
victim’s forensic statements were harmless pursuant to State v. Conway, 108 Ohio St.
3d 214, 842 N.E.2d 996, 2006-Ohio-791. Id. at ¶44.
{¶19} The victim in the instant case made statements to Wilkinson that were for
medical diagnosis or treatment, and thus were non-testimonial and admissible pursuant
to Arnold. Having identified male and female genitalia as “boogers,” the victim told
Wilkinson that Papaw Roger touched her booger, that his booger goes inside of her
booger, that his booger goes inside her butt, that it hurts, and that white slobber comes
out of his booger.
{¶20} However, other statements made by A.S. relating to appellant’s conduct
were testimonial in nature and therefore inadmissible pursuant to Arnold: Papaw Roger
is the only one who hurts her butt, her description of what appellant’s booger looks like,
she is in the bedroom when he touches her booger, he doesn’t say anything to her and
she doesn’t tell him that it hurts, appellant told her it was a secret, he puts her pants and
underwear on the floor, Mamaw is at work, when Papaw Roger goes potty pee and
white slobber come out of his booger, and when he’s done putting his booger in her
booger appellant puts her pants back on and makes her toast and waffles. As in Arnold,
the primary purpose of this portion of the interview was not to meet an ongoing
Knox County, Case No. 14CA8 7
emergency, but rather to further the state’s forensic investigation and possibly pursue
criminal charges against appellant.
{¶21} Because the trial court did not redact the testimonial portions of the video,
we must determine whether admission of these statements were harmless pursuant to
the standard set forth in Conway, supra. Whether a Sixth Amendment error is
harmless beyond a reasonable doubt is not simply an inquiry into the sufficiency of the
remaining evidence. Id. at ¶78. Rather, the question is whether there is a reasonable
possibility that the evidence complained of might have contributed to the conviction. Id.
{¶22} Appellant was convicted of both rape and gross sexual imposition.
However, the court merged the offenses and only sentenced appellant on the rape
conviction. Rape is defined by R.C. 2907.02(A):
(A)(1) No person shall engage in sexual conduct with
another who is not the spouse of the offender or who is the spouse
of the offender but is living separate and apart from the offender,
when any of the following applies:
(b) The other person is less than thirteen years of age,
whether or not the offender knows the age of the other person.
{¶23} Sexual conduct is defined by R.C. 2907.01(A) as “vaginal intercourse
between a male and female; anal intercourse, fellatio, and cunnilingus between persons
regardless of sex; and, without privilege to do so, the insertion, however slight, of any
part of the body or any instrument, apparatus, or other object into the vaginal or anal
opening of another.”
Knox County, Case No. 14CA8 8
{¶24} While there was evidence that appellant made statements which could be
interpreted as an admission to touching A.S. in a sexual manner, the only evidence of
sexual conduct as defined by R.C. 2907.01(A) came from the statements made by A.S.
during the interview. While these statements were made for purposes of medical
diagnosis and treatment and were therefore non-testimonial in nature, other details of
the victim’s encounters with appellant were testimonial in nature. These details, such
as appellant telling her it was a secret, what his penis looked like and what comes out of
it when appellant goes potty, appellant removing her underwear and pants and putting
them on the floor, appellant taking her into the bedroom, Mamaw being at work when
this happens, and appellant putting her pants back on and making her toast and waffles
lend credibility to the non-testimonial statements of the victim, who was previously found
incompetent to testify after stating that she did not know what it means to tell a lie or
what a lie is. Tr. 131. The medical examination did not corroborate A.S.’s statements
concerning penetration, nor did any other evidence in the case. Therefore, we find
there is a reasonable probability that the testimonial statements included in the video
might have contributed to appellant’s rape conviction, and the error in admitting the
videotape in its entirety is not harmless as defined in Conway, supra. The trial court
erred in failing to redact the portions of the tape that were testimonial in nature as to the
rape conviction.
{¶25} However, as to the conviction of gross sexual imposition, we find that
there is not a reasonable probability that admission of the entire videotape contributed
to the conviction. Appellant was convicted of violating R.C. 2907.05(A)(4), which
prohibits sexual contact with a person under the age of thirteen. Sexual contact is
Knox County, Case No. 14CA8 9
defined by R.C. 2907.01(B) as “any touching of an erogenous zone of another, including
without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female,
a breast, for the purpose of sexually arousing or gratifying either person.” Appellant
admitted to touching A.S.’s buttock. While he testified that he was simply putting diaper
ointment on A.S., during the audio recording appellant’s daughter made of a
confrontation with appellant, he stated that he touched A.S., that he does not know why,
and that he is getting help. He also told police that he might have touched A.S. during a
“blackout session.” Although appellant argues that his testimony and that of his wife
demonstrates he has not been able to have an erection or ejaculate for the last ten
years, appellant’s ability to physically perform sexually is not solely determinative of
whether he touched A.S. for the purpose of sexually arousing or gratifying himself. The
majority of the evidence concerning the charge of gross sexual imposition came from
other testimony in the case, and not from the testimonial statements on the videotape.
Therefore, we find admission of the entire videotape is harmless as to the conviction of
gross sexual imposition.
{¶26} The first assignment of error is sustained as to the conviction of rape, and
overruled as to the conviction of gross sexual imposition.
II., III.
{¶27} In his second assignment of error, appellant argues that the judgment is
not supported by sufficient evidence. In his third assignment of error, appellant argues
that the judgment is against the manifest weight of the evidence. As to the conviction of
rape, these assignments of error are rendered moot based on our disposition of
Knox County, Case No. 14CA8 10
appellant’s first assignment of error. Therefore, we address appellant’s arguments only
as to the conviction of gross sexual imposition.
{¶28} In determining whether a verdict is against the manifest weight of the
evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire
record, weighs the evidence and all reasonable inferences, considers the credibility of
witnesses, and determines whether in resolving conflicts in 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.’” State v. Thompkins, 78 Ohio St. 3d 380, 387,
1997-Ohio-52, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485
N.E.2d 717 (1983).
{¶29} An appellate court’s function when reviewing the sufficiency of the
evidence is to determine whether, after viewing the evidence in a light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the
crime proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St. 3d 259, 574
N.E.2d 492, paragraph two of the syllabus (1991).
{¶30} Appellant was convicted of violating R.C. 2907.05(A)(4), which prohibits
sexual contact with a person under the age of thirteen. Sexual contact is defined by
R.C. 2907.01(B) as “any touching of an erogenous zone of another, including without
limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast,
for the purpose of sexually arousing or gratifying either person.” Appellant admitted to
touching A.S.’s buttock. While he testified that he was simply putting diaper ointment on
A.S., during the audio recording appellant’s daughter made of a confrontation with
appellant, he stated that he touched A.S., that he does not know why, and that he is
Knox County, Case No. 14CA8 11
getting help. He also told police that he might have touched A.S. during a “blackout
session.” Although appellant argues that his testimony and that of his wife
demonstrates he has not been able to have an erection or ejaculate for the last ten
years, appellant’s ability to physically perform sexually is not solely determinative of
whether he touched A.S. for the purpose of sexually arousing or gratifying himself.
{¶31} From appellant’s admission that he touched A.S. and his admission that
he was seeking help because he did not know why he touched A.S., the jury could have
concluded that appellant touched A.S. for the purpose of sexual gratification or arousal.
Further, the jury did not lose its way in concluding that appellant touched A.S. for the
purpose of sexual gratification or arousal from the evidence presented in the case. The
judgment is not against the manifest weight or sufficiency of the evidence.
{¶32} The second and third assignments of error are overruled.
IV.
{¶33} In his fourth assignment of error, appellant argues that his trial counsel
was ineffective for failing to make a Crim. R. 29 motion for a directed verdict of acquittal
based on insufficient evidence. Again, we consider this assignment only as to the
conviction for gross sexual imposition, as it is rendered moot as to the rape conviction
based on our disposition of the first assignment of error.
{¶34} A properly licensed attorney is presumed competent. State v. Hamblin, 37
Ohio St. 3d 153, 524 N.E.2d 476 (1988). Therefore, in order to prevail on a claim of
ineffective assistance of counsel, appellant must show counsel's performance fell below
an objective standard of reasonable representation and but for counsel’s error, the
result of the proceedings would have been different. Strickland v. Washington, 466
Knox County, Case No. 14CA8 12
U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674(1984); State v. Bradley, 42 Ohio St. 3d 136,
538 N.E.2d 373 (1989). In other words, appellant must show that counsel’s conduct so
undermined the proper functioning of the adversarial process that the trial cannot be
relied upon as having produced a just result. Id.
{¶35} Because we have found in appellant’s second assignment of error that the
evidence was sufficient to support a judgment of conviction of gross sexual imposition,
appellant has not demonstrated that the result of the proceeding would have been
different had counsel moved for a directed verdict of acquittal.
{¶36} The fourth assignment of error is overruled.
{¶37} The judgment of the Knox County Common Pleas Court is affirmed as to
the conviction of gross sexual imposition, and reversed as to the conviction of rape.
This case is remanded to that court for further proceedings according to law, consistent
with this opinion. Costs are split evenly between the parties.
By: Baldwin, J.
Hoffman, P.J. and
Wise, J. concur.