State v. Jamison

[Cite as State v. Jamison, 2014-Ohio-3275.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-12-1274
Appellee Trial Court No. CR0201101607
v.
Ricky Jamison DECISION AND JUDGMENT
Appellant Decided: July 25, 2014
* * * * *`
Julia R. Bates, Lucas County Prosecuting Attorney, and
Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.
Tim A. Dugan, for appellant.
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OSOWIK, J.
{¶ 1} This is an appeal from a judgment of the Lucas County Court of Common
Pleas, which found appellant guilty of three counts of rape, in violation of R.C.
2907.02(A)(2) and (B), all felonies of the first degree, and one count of kidnapping a
minor under the age of 13 or a mentally incompetent individual, in violation of R.C.
2905.01(A)(4) and (C), also a felony of the first degree. Following jury trial, appellant
was convicted on all counts and sentenced to ten-year terms of incarceration for each of
the four counts, to be served consecutively. For the reasons set forth below, this court
affirms the judgment of the trial court.
{¶ 2} Appellant, Ricky Jamison, sets forth the following four assignments of
error:
I. The Trial Court erred by allowing Appellee to use leading
questions on direct examination of the victim at trial.
II. The Trial Court erred by allowing duplicative and inflammatory
photographs to be admitted as evidence.
III. Appellee failed to provide legally sufficient evidence at trial to
sustain a conviction on three counts of rape.
IV. Appellant’s convictions fell against the manifest weight of
evidence.
{¶ 3} The following undisputed facts are relevant to this appeal. This case arises
from the kidnapping and vicious rape over the course of many hours of a girl who was
playing outside of her home in a Toledo neighborhood. At approximately 5:00 p.m. on
March 3, 2011, the victim’s mother arrived home from work. The victim was eager to go
outside and play. The victim is significantly developmentally delayed. She was 14 years
of age at the time of the incident and possessed the cognitive functioning of a child
approximately one-half her chronological age.
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{¶ 4} On March 3, 2011, the victim asked her mother if she could go outside and
walk the neighbor’s dog. The victim’s mother gave her permission to do so. The
victim’s mother realized that when her daughter said she wanted to “walk the dog,” the
victim meant she wanted to retrieve the neighbor’s dog, bring it home, and play with the
dog in her yard. Due to her circumstances, the victim was not allowed to walk around the
block by herself. Notably, the victim required occupational therapy, physical therapy,
speech therapy, and special needs classes. She was exempt from the standardized testing
required by Ohio schools.
{¶ 5} It is illuminating to note that the victim’s studies were centered on
rudimentary tasks such as speaking in complete sentences, following basic directions, and
asking for a sight menu at McDonald’s so that she could order for herself.
{¶ 6} Although the victim’s cognitive limitations prevented her from
understanding and participating in the things that other children her same chronological
age typically do, she always enjoyed activities such as pushing a stroller with her dolls
inside, playing school, and playing dress-up.
{¶ 7} At 6:30 p.m., the victim’s mother became concerned as her daughter had
not returned inside the home. She began to look for her daughter throughout the
neighborhood at neighbors’ homes and at a senior citizen facility that is in close
proximity to the victim’s house. The victim enjoyed visiting with the senior citizens at
the senior citizen residential facility. After failing to locate her daughter after several
hours of frantic searching, her mother called the police.
3.
{¶ 8} At approximately 4:30 p.m. the day after the victim disappeared, a Maumee
High School student discovered the disheveled and disoriented victim near the Andover
Apartment complex located along the border of Maumee and Toledo. The victim had
visible marks on her neck. The victim was distraught and stated that “he hurt me,” “I told
him no, mommy, and he grabbed me by the neck and put me in the car.”
{¶ 9} Given the victim’s condition, she was taken to Toledo Hospital. She was
treated by a Sexual Assault Nurse Examiner (“SANE nurse”). The SANE nurse “could
tell right away” that the victim was not a typical 14 year old because she was “very
childlike in her mannerisms, in her speech, the way she talked.” The SANE nurse took
the victim’s medical history and performed a complete “head to toe assessment.” The
SANE nurse determined that a sexual assault examination was required.
{¶ 10} Accordingly, the SANE nurse took oral swabs, fingernail swabs, vaginal
swabs, anal swabs, and combed the victim’s pubic hair. Additionally, a blue light, which
luminesced on bodily fluids, was utilized. It revealed bodily fluids on the left side of the
victim’s chin, upper right arm, buttocks, and mons pubis. Thus, all of these areas were
also swabbed. Lastly, the SANE nurse collected the victim’s clothing, including her
underwear, which was inside out and stained with dried blood and drainage.
{¶ 11} Significantly, during the examination, the victim voluntarily disclosed to
the SANE nurse portions of what had occurred to her after she went missing. The victim
stated, “he grabbed my key around my neck” and “he put his boy privates in my mouth.”
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Additionally, as the SANE nurse assessed the victim’s vulva, the victim stated that he
“put his boy privates in there.”
{¶ 12} The victim further shared with the SANE nurse that she kept crying during
her ordeal and told her attacker repeatedly that she wanted to go home. She stated “I kept
crying and telling him I wanted to go home; I didn’t sleep or eat anything; he wouldn’t let
me go home; he took my pants off and he pushed me down.”
{¶ 13} The physical examination revealed that the victim had lacerations in the
area of her hymen, redness and tenderness at the clitoral hood, abrasions to her labia
minora, and redness, abrasions and tenderness on the posterior fourchette. Notably, the
victim continued to bleed throughout the examination. At trial, the treating SANE nurse
authenticated and discussed twelve photographs that were taken of the victim’s injuries
during her examination.
{¶ 14} In addition to the SANE nurse, treating physician Dr. Schlievert testified
for the prosecution as an expert witness in pediatric abuse and neglect. Schlievert
testified in relevant part that the victim, “definitely was developmentally delayed,” and
was, “significantly much younger in her demeanor, behavior, expressions, and language
and speech.” He noted that the victim required reassurances similar to children who are
four or five years old that she would not need shots during the doctor’s office visit.
Schlievert also testified that the victim stated to him that, “he put his—she didn’t want to
say it at first but then she said pee pee in her front butt.” The victim further disclosed to
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Schlievert that “he made me suck it.” Based upon his assessment of what was done to the
victim, Schlievert recommended H.I.V. testing.
{¶ 15} In conjunction with testimony from medical providers, the prosecution also
called an expert in forensic biology and forensic DNA typing employed by the Ohio
Bureau of Criminal Identification and Investigation (“BCI”). The BCI witness testified
that the semen that was detected on the vaginal and anal swabs in the rape kit, and
amylase (an enzyme present in high concentrations of saliva) was detected on the neck
and buttocks swabs. A comparison of the vaginal and anal swabs to a reference sample
from the victim showed the presence of the victim’s DNA, as well as an unknown male.
The unknown male’s profile was entered into the national database, which triggered the
investigation of appellant’s role in the kidnapping and rape of the victim.
{¶ 16} Given these developments in the case, DNA was obtained from appellant.
It was submitted to BCI for testing. Appellant’s DNA was a match to the perpetrator’s
DNA.
{¶ 17} The BCI witness testified in pertinent part, “Based on the national
database provided by the Federal Bureau of Investigation, the expected frequency of
occurrence of the DNA profile from the sperm fraction of the vaginal swabs * * * is 1 in
121,200,000,000,000,000 unrelated individuals.”
{¶ 18} Consistently, the anal swab also resulted in two DNA profiles, one
matching the victim and one matching appellant. The BCI witness testified, “Based on
the national database provided by the Federal Bureau of Investigation, the expected
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frequency of occurrence of the DNA profile from the sperm fraction of the anal swabs
* * * is 1 in 8,203,000,000,000,000,000 unrelated individuals.”
{¶ 19} At trial, the victim testified that when she was walking her baby doll in a
stroller, a bald stranger got out of a car, grabbed her by the neck, choked her, and forced
her into the car.
{¶ 20} A detective with the Toledo Police department testified that the victim was
discovered near the Andover Apartment complex, which is in close proximity to
appellant’s apartment. The detective testified that after appellant was identified by BCI
as the source of the semen from the swabs taken from the victim, a search warrant was
executed upon appellant’s apartment.
{¶ 21} During the search of appellant’s apartment, a pillow on the couch that
matched one depicted in a photograph found on the victim’s mobile phone was
recovered. The couch, chairs, table, and thermostat on the wall were in the same exact
locations as reflected in the victim’s mobile phone photos. All of this further supported
the already substantial evidence collected that appellant was the perpetrator of these
crimes.
{¶ 22} After the search of appellant’s apartment was concluded, appellant was
taken into police custody. During the investigative interview of appellant, appellant was
shown photographs of the victim and was asked why his DNA would have been
recovered from the victim’s person. Appellant unconvincingly conveyed that he
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sometimes picked up women and had sex with them but might not recall the women
afterwards.
{¶ 23} Ultimately, appellant conceded to the investigating officers that he was
riding around in his friend’s car when they saw the victim walking alone in the area
where the victim resided. Appellant stated that they had innocently asked the girl
“what’s up,” and in response, she jumped into their car, he drove her to his apartment,
and she said she wanted to make love. Appellant stated that he told her she looked kind
of young, but said that she replied that she was 18 years old. Appellant stated that they
attempted intercourse, but she was “real tight” and he could not penetrate her. Upon
attempting penetration again, she was still “too tight.” He volunteered that due to her
tightness he “came quick.”
{¶ 24} Appellant unconvincingly proclaimed at trial that the prosecution had been
“all lies” and had been “fabricated.” With respect to the incriminating photos, separate
and apart from the multiple DNA matches, appellant hypothesized that the police had
somehow staged the photos inside his apartment with the victim on his couch to set him
up.
{¶ 25} The jury was not convinced. The trial concluded and the jury found
appellant guilty of all counts. This appeal ensued.
{¶ 26} In the first assignment of error, appellant contends that the trial court erred
by abusing its discretion in allowing appellee to ask leading questions of the victim on
direct examination. We are not persuaded. The record shows that the trial court properly
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permitted leading questions on direct examination pursuant to Evid.R. 611(c). The
victim is significantly developmentally delayed, which necessitated questions for her to
be posed in a more leading fashion than would be necessary for a witness not having her
cognitive limitations.
{¶ 27} Evid.R. 611(c) permits the use of leading questions “as may be necessary to
develop the witness’ testimony.” Evid.R. 611(c) is broad and leaves the limits of the use
of leading questions on direct examination within the sound discretion of the trial court.
State v. Lewis, 4 Ohio App.3d 275, 278, 448 N.E.2d 487 (3d Dist.1982).
{¶ 28} The record reflects that multiple medical professionals familiar with the
victim and the victim’s mother all testified that the victim functioned at a far lower level
than fully functioning individuals her same age. Thus, the intellectual capability of the
victim properly formed a justification in warranting the disputed leading questions to her
on direct examination. See State v. Jones, 2d Dist. Montgomery No. 17903, 2000 WL
1006557 (July 21, 2000) (court upheld the use of leading questions when the victim was
14 years old at the time of trial but functioned at the mental level of a 7-year-old child).
{¶ 29} The record reflects that appellant’s claim that there was no testimony of
anyone qualified to judge the mental capabilities of developmentally delayed children is
without merit. On the contrary, two treating medical expert witnesses testified to the
victim’s delayed developmental state. The content of victim’s own testimony
corroborated the expert witnesses’ assessment of her limitations.
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{¶ 30} Ohio caselaw consistently reflects that courts permit leading questions in
cases such as this one, particularly in cases involving sexual offenses against minors.
State v. Rector, 7th Dist. No. 01 AP 758, 2002-Ohio-7442, ¶ 30. See State v. Miller, 44
Ohio App.3d 42, 541 N.E.2d 105 (6th Dist.1988); State v. Madden, 15 Ohio App.3d 130,
472 N.E.2d 1126 (12th Dist.1984); State v. Matheny, 5th Dist. Tuscarawas No.
2001AP070069, 2002 WL 386163 (Mar. 6, 2002); State v. Mader, 8th Dist. Cuyahoga
No. 78200, 2001 WL 1002365 (Aug. 30, 2001); State v. Pegram, 7th Dist. Mahoning No.
95 C.A. 80, 1998 WL 30141 (Jan. 22, 1998); State v. Hutton, 7th Dist. Belmont No. 93-
B-2, 1995 WL 516962 (Aug. 30, 1995).
{¶ 31} We cannot find the trial court’s decision to permit leading questions of the
victim under the facts and circumstances of this case to be unreasonable, arbitrary or
unconscionable. Wherefore, we find appellant’s first assignment of error not well-taken.
{¶ 32} In the second assignment of error, appellant contends that the trial court
erred in admitting certain photos of the victim’s physical injuries at trial. Pursuant to
Evid.R. 403 and 611(A), the admission of photographs lies within the sound discretion of
the trial court. State v. Williams, 74 Ohio St.3d 569, 574, 660 N.E.2d 724 (1996).
{¶ 33} Photographs depicting the nature and severity of injuries are probative of
the offender’s intent. Id. at 575. Several of the disputed photographs are close-ups of
other photographs. Close-ups were necessary to enable the viewer to be able to see the
injuries to the hymen, posterior fourchette and source of the bleeding in the vulva area.
The injuries that were visible only in the close-ups included swelling, redness and acute
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bruising. A different view or close-up of an injury may be introduced, which cannot be
seen in other photographs, to depict a different aspect of the victim’s injuries. See State
v. Tibbetts, 92 Ohio St.3d 146, 157, 749 N.E.2d 226 (2001).
{¶ 34} The record reflects the disputed photos were necessary to accurately reflect
the nature and extent of the victim’s injuries which could not be fully seen or appreciated
in the other photos presented. As such, they were permissible. Wherefore, we find
appellant’s second assignment of error not well-taken.
{¶ 35} In the third assignment of error, appellant contends that appellee failed to
provide legally sufficient evidence to sustain a conviction on three counts of rape.
Crim.R. 29(A) requires a trial court to order an acquittal “if the evidence is insufficient to
sustain a conviction of such offense or offenses.” However, if the record demonstrates
that reasonable minds may reach differing conclusions as to the proof of the material
elements of a crime, a trial court may not grant a Crim.R. 29(A) motion for acquittal.
State v. Bridgeman, 55 Ohio St.2d 261, 263, 381 N.E.2d 184 (1978).
{¶ 36} The record unequivocally reflects that appellant’s convictions of three
counts of rape and one count of kidnapping were based upon far more than sufficient
evidence. The record encompasses ample evidence of appellant’s guilt, including
multiple DNA matches and extensive expert testimony, all of which was corroborated by
the testimony of the investigating officers and the victim. Appellant’s claims suggesting
that the victim was somehow the instigator and a willing participant in these events are
unsupported, unilateral, and absolutely belie the record of evidence.
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{¶ 37} The record in this case demonstrates that a developmentally delayed girl
was walking near her home when appellant forced her into a car, transported her to his
apartment, and brutally raped her. The record contains overwhelming evidence of her
severe injuries and a multitude of DNA matches to appellant, verifying his infliction of
those injuries.
{¶ 38} Wherefore, we find appellant’s third assignment of error not well-taken.
{¶ 39} In the fourth assignment of error, appellant states the convictions fell
against the manifest weight of evidence. A manifest weight challenge questions whether
the state has met its burden of persuasion. State v. Thompkins, 78 Ohio St.3d 380, 387,
678 N.E.2d 541 (1997). In making this determination, the appellate court sits as a
“thirteenth juror” and, after “reviewing the entire record, weighs the evidence and all
reasonable inferences, considers the credibility of witnesses and determines 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.” Id. at 386. “The 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, 485 N.E.2d 717 (1st Dist.1983).
{¶ 40} We have carefully reviewed the record in its entirety. Our review of the
record reveals no evidence that the fact-finder lost its way or created a manifest
miscarriage of justice. On the contrary, the record reflects ample objective evidence of
appellant’s guilt ranging from multiple DNA matches to appellant of the semen and
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saliva recovered from the victim, photographic evidence of the severe physical injuries
inflicted upon her during the rape, police testimony, expert medical witness testimony,
and victim testimony, all consistently demonstrating appellant’s guilt of kidnapping and
rape.
{¶ 41} Wherefore, we find appellant’s fourth assignment of error not well-taken.
{¶ 42} Based upon the foregoing, we find that substantial justice has been done in
this matter. The judgment of the Lucas County Court of Common Pleas is hereby
affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Stephen A. Yarbrough, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.
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