State v. Rose

[Cite as State v. Rose, 2021-Ohio-2371.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
OTTAWA COUNTY
State of Ohio Court of Appeals No. OT-20-018
Appellee Trial Court No. 18 CR 096
v.
Richard Rose, Jr. DECISION AND JUDGMENT
Appellant Decided: July 9, 2021
*****
James J. VanEerten, Ottawa County Prosecuting Attorney, and
Barbara Galle Rivas, Assistant Prosecuting Attorney, for appellee.
W. Alex Smith, for appellant.
*****
DUHART, J.
{¶ 1} Appellant, Richard Rose, Jr., appeals from judgment entered by the Ottawa
County Court of Common Pleas on August 13, 2020, sentencing him to five consecutive
terms of life imprisonment. For the reasons that follow, we affirm the judgment of the
trial court.
{¶ 2} Appellant sets forth the following assignment of error:
I. The defendant was convicted based on insufficient evidence.
Statement of the Case and Facts
{¶ 3} The victim in this case was born on June 10, 1998. In 2002, when she was
approximately 4 years old, her mother died of an overdose. As a consequence, she came
to live with her aunt and her uncle, appellant Richard Rose, Jr. From 2002 until the fall
of 2005, the victim, her aunt, and appellant lived at 111 Springcrest Dr., Danbury
Township, Ottawa County, Ohio. Also living in the home were the aunt’s two sons, who
are, respectively, 8 and 10 years older than the victim. Sometime late in 2005, the family
moved to Cartersville, Georgia. According to school records, the victim was enrolled in
the Danbury school district beginning in the fall of 2004 through the end of the school
year in the spring of 2005.
{¶ 4} At trial, the victim testified that during the period of October 1, 2004,
through September 30, 2005, when she was just six to seven years old, appellant sexually
assaulted her while at the Danbury Township home. According to the victim, assaults
that took place during this period included acts of fellatio, cunnilingus, and digital
penetration, and they occurred in areas of the home, including appellant’s bedroom and
the victim’s bedroom, and in a shed located on the home’s property.
{¶ 5} At trial, the victim described three specific encounters during which she was
sexually abused by appellant. In the first, the victim entered appellant’s bedroom after
appellant had invited her in. Upon climbing into bed with him, she noticed that he was
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naked under the blanket. She asked him what his penis was, and he indicated that she
was supposed to kiss it to express her love. She was also made to lick it. After a period
of time, appellant climaxed. Thereafter, appellant said it was his turn, and he put the
victim back on the bed and performed cunnilingus on her. The encounter occurred
during the fall or winter months in late 2004 through early 2005, and it lasted
approximately 30 minutes. Appellant told the victim that what happened during that time
was to be their secret.
{¶ 6} The second encounter took place in the victim’s bedroom in Danbury
Township, less than a week after the first. The victim recalled that it was bedtime and
that appellant had come into her room to read her a story. She was again forced to
perform fellatio on him, although this time he did not climax. Appellant then performed
cunnilingus on the victim. This encounter lasted approximately 15-20 minutes.
{¶ 7} The third encounter took place in the shed behind the Danbury Township
home, during the spring of 2005. The victim testified that she had gone outside to find
appellant and when she discovered him in the shed, he told her a tale about how he had
gotten different chemicals that burned off his body hair. After telling her this tale, he
made her turn around and he attempted to put his penis inside of her. (The victim
testified that he was unsuccessful, as he suffered from erectile dysfunction.) He then
digitally penetrated her, with his finger. The entire incident lasted approximately 15
minutes and scared the victim due to the fact that it had hurt her.
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{¶ 8} The victim testified that the sexual abuse by appellant occurred frequently,
nearly every other day. She stated that she continued to be sexually abused by appellant
until she reached the age of 11, but that the abuse did eventually become less frequent
when the family reached Georgia and appellant became a truck driver, who was no longer
at home as much.
{¶ 9} The victim did not disclose the abuse to anyone until she was in the fourth
grade, when she told a friend. After telling her friend, she was confronted by her aunt, in
the presence of appellant. At that time, she denied that any abuse had taken place, but
later that night she told her aunt that the abuse had, in fact occurred. At her aunt’s
request the victim wrote out a statement about the sexual abuse that was committed by
appellant.
{¶ 10} The victim’s aunt did not make appellant immediately leave the home, and
instead gave him several months to vacate. She testified that she did not contact the
police, in order to avoid putting the victim through “the process.” Appellant finally left
the family’s Georgia home in April of 2010. In November of 2010, the victim and her
aunt moved from Georgia to Elyria, Ohio.
{¶ 11} In 2011, the victim began to experience mental health issues and she began
cutting herself. These issues persisted until 2013, when the victim ran away from the
home she shared with her aunt. She was then taken to the Nord Center, in Lorain, Ohio,
for a mental health evaluation. During this evaluation, the victim again disclosed the
sexual abuse by appellant. As a result, the Lorain County Children’s Services opened an
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investigation. At this point, the Danbury Township police were contacted and Det. Sgt.
Mark Meisler was assigned to the case.
{¶ 12} Det. Sgt. Meisler reviewed Lorain County Children’s Services interviews
of the victim, and he conducted his own interviews of the victim’s aunt and appellant.
During his interview with appellant, appellant denied sexually assaulting the victim, but
he did make certain admissions about the victim pulling on his shorts and about the
victim perhaps having seen a pornographic tape while she was with him in the cab of his
truck. Det. Sgt. Meisler indicated that the case had not been prosecuted by the previous
prosecutor due to insufficient evidence. The case languished from 2013 through late
2017, when there finally came a break in the case. The break in the case came in the
form of text messages between the victim and appellant, in which the victim described
the abuse and pain that appellant had put her through over the years, and in which
appellant, in response, repeatedly apologized. The victim also supplied police with a
video showing appellant apologizing to her for “molesting” her and then attempting to
give reasons for his behavior.
{¶ 13} On April 5, 2018, appellant was indicted by the Ottawa County grand jury.
He was charged with 50 counts of rape of a child in violation of R.C.
2907.02(A)(1)(b)(B). On August 16, 2018, the trial court granted the state’s motion to
dismiss count numbers six through 50, inclusive. A bill of particulars was provided to
appellant on August 7, 2018. Count one alleges rape by fellatio occurring in appellant’s
bedroom. Count two alleges rape by cunnilingus occurring in appellant’s bedroom.
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Count three alleges rape by cunnilingus occurring in the home, not in the victim’s
bedroom. Count four alleges rape by fellatio occurring in the home, not in the victim’s
bedroom. And count five alleges rape by digital penetration in the home.
{¶ 14} A jury trial on counts one through five commenced on August 11, 2020.
On August 12, the jury returned a verdict of guilty on all five counts. On August 13,
2020, the trial court sentenced appellant on each count to life imprisonment with a
possibility of parole after 10 years. The trial court ordered that each prison term be
served consecutively, for a total aggregate sentence of life imprisonment with the
possibility of parole after 50 years. On August 27, 2020, appellant timely filed his notice
of appeal.
Law and Argument
{¶ 15} Appellant argues in this case that there was insufficient evidence to
establish the elements of rape and, further, insufficient evidence to establish venue. An
appellate court reviewing a challenge to the sufficiency of the evidence must view the
evidence in a light most favorable to the prosecution, and must determine whether “any
rational trier of fact could have found the essential elements of the crime proven beyond a
reasonable doubt.” State v. Haynes, 2020-Ohio-1049, 152 N.E.3d 1217, ¶ 25 (6th Dist.),
quoting State v. Smith, 80 Ohio St.3d 89, 113, 684 N.E.2d 668 (1997). In making this
determination, the appellate court will not weigh the evidence or assess the credibility of
the witnesses. Id., citing State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d
6.
263, ¶ 132. Whether sufficient evidence exists to support a conviction is a question of
law. Id., citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).
{¶ 16} R.C. 2907.02 relevantly provides:
(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.
***
(B) Whoever violates this section is guilty of rape, a felony of the
first degree. * * * [I]f the victim under division (A)(1)(b) of this section is
less than ten years of age, in lieu of sentencing the offender to a prison term
or term of life imprisonment pursuant to section 2971.03 of the Revised
Code, except as otherwise provided in this division, the court may impose
upon the offender a term of life without parole.
“Sexual conduct” is defined in R.C. 2907.01(A) as follows:
“Sexual conduct” means 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
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slight, of any part of the body or any instrument, apparatus, or other object
into the vaginal or anal opening of another. Penetration, however slight, is
sufficient to complete vaginal or anal intercourse.
{¶ 17} In Ohio, “the testimony of one witness, if believed by the jury, is sufficient
to support a conviction.” State v. Dunn, 5th Dist. Stark No. 2008-CA-00137, 2009-Ohio-
1688, ¶ 133. This court has held that the evidence of a single witness in a rape case is
sufficient to support a finding of guilt. State v. Armstrong, 6th Dist. Lucas No. L-87-338,
1988 WL 84376 (Aug. 12, 1988).
{¶ 18} Regarding venue, the Ninth District Court of Appeals in State v. Williams,
9th Dist. No. 14CA010641, 2015-Ohio-3932, 42 N.E.3d 347, ¶ 9, recognized:
Venue is proper in any county where the offense, or any element of
the offense, was committed. R.C. 2901.12(A). While venue is not a
material element of an offense, the State must prove venue beyond a
reasonable doubt unless it is waived by the defendant. State v. Headley, 6
Ohio St.3d 475, 477, 453 N.E.2d 716 (1983), citing State v. Draggo, 65
Ohio St.2d 88, 90, 418 N.E.2d 1343 (1981). ‘Express evidence
establishing venue is not necessary as long as the facts and circumstances
of the case show beyond a reasonable doubt that the crime was committed
in the county and state named in the indictment.’ State v. Simpson, 9th Dist.
Summit No. 21475, 2004-Ohio-602, 2004 WL 243451, ¶ 72, citing State v.
8.
Dickerson, 77 Ohio St. 34, 82 N.E. 969 (1907), paragraph one of the
syllabus; Headley at 477, 453 N.E.2d 716.
{¶ 19} We begin with the evidence adduced at trial in support of establishing
venue in this case. The applicable time period for all five charges of the indictment is the
same: October 1, 2004 through September 30, 2005. The state presented abundant
evidence that appellant lived in and committed five separate and distinct rapes while in
Ottawa County. First and foremost, was testimony by the victim. She testified that she
was raped by appellant, in his bedroom, while she was residing with him in Danbury
Township, Ottawa County, Ohio, during the fall or winter months in late 2004 through
early 2005. She further testified that during the same time frame, just days after the
previous encounter, appellant again raped her, but this time in her bedroom. Finally, she
testified that in the spring of 2005, appellant raped her in the shed behind the house
located in Danbury Township, Ottawa County, Ohio.
{¶ 20} In addition to testimony by the victim, the state introduced a substantial
amount of corroborating evidence as to venue, including property records showing that
the home in question was owned by appellant from 2001 until November 15, 2005, and
authenticated school records for the victim, which indicate that she was enrolled in
Danbury schools until the fall of 2005. In addition, testimony by the victim’s aunt
established that she lived with the victim and appellant in Danbury Township from 2002
through the fall of 2005. We find that the foregoing constitutes ample evidence to
establish venue in this case.
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{¶ 21} Next, we examine appellant’s claim that there was insufficient evidence to
establish the elements of rape. Specifically, appellant claims that there was insufficient
evidence to establish the element of “sexual conduct” as to each of the five counts.
Regarding the first two counts, the victim testified that appellant raped her by way of
fellatio, in his bedroom, in the winter of 2004. She described in detail about how
appellant invited her to stay up past her bedtime and invited her into his bed, and that
when she asked him what his penis was, he told her to that she was supposed to lick it to
express her love. She testified that she did kiss it and lick it and that she thought it was
gross to be kissing something she just licked. She explained that she asked him to watch
her, and that he eventually climaxed. The victim testified that after the fellatio was
concluded, appellant told her it was her turn, and he performed cunnilingus on her. In
addition, the victim stated that she remembered certain details, including that her feet
were cold, and that appellant’s bed was a water bed.
{¶ 22} With respect to counts three and four, the victim testified that just days
after the first two rapes, appellant came into her bedroom to read her a bedtime story, and
then made her perform fellatio on him, after which he performed cunnilingus on her. She
further testified that the abuse lasted approximately 15 to 20 minutes, and that, on this
occasion, appellant did not climax.
{¶ 23} Regarding count five, the victim testified that during the spring of 2005,
while she was at the Danbury Township home, she went outside to look for appellant in
the shed. She explained that when she found him, he told her a story about having gotten
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different chemicals to burn off his body hair, and that he then attempted to rape her with
his penis. She further stated that while his attempt to rape her with his penis was
unsuccessful, because he suffered from erectile dysfunction, he did digitally penetrate her
with his finger and that when he did so it hurt. She testified that the incident lasted for
about 15 minutes, after which she went in and got cleaned up. She said that she did not
tell anyone about the incident, because she was scared.
{¶ 24} The foregoing was direct testimony from an eyewitness and victim
regarding each of the five counts. In addition to the basic facts, the victim recalled a
substantial number of specific details related to those counts. There was also substantial
amount of corroborating evidence, including appellant’s confession. In the video,
appellant can be seen and heard telling the victim that he is sorry that he molested her,
that he never meant to hurt her, that he does not really know why he did it, and that he
has never done it to anyone else. In the text messages, appellant responds to the victim’s
accusations of rape by saying that he is “so so sorry” and that he never meant to hurt her.
{¶ 25} Appellant argues that “[o]nce the Court permitted the victim’s testimony,
letters, and journal entries describing years of events, the trial was turned into a
referendum on years of conduct rather than a trial of specific acts[;] [a]s a result, the jury
lost their way and convicted Mr. Rose based on an alleged lifetime of misdeeds rather
than specific instances of Rape.” In response to this argument, the state notes that the
journal entries and letters to which appellant refers were introduced without objection by
the defense at trial, and, further, that two of those journal entries and letters were offered
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as defense exhibits. A review of the record reveals that the state took great pains to
ensure that the jury knew the specific conduct by the defendant that related to each of the
five charges. During the state’s opening, the state explained in detail each charge, each
element of those charges, and the facts that were alleged to have constituted each of the
five offenses. The state reviewed the same material in closing. It is clear from the record
that there was sufficient evidence to support a conviction on each and every one of the
five charges.
{¶ 26} Viewing the evidence in a light most favorable to the state, we find that
there was sufficient evidence to find appellant guilty of all five counts. Accordingly,
appellant’s assignment of error is found not well-taken, and we affirm the judgment of
the trial court. 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.
Thomas J. Osowik, J. _______________________________
JUDGE
Christine E. Mayle, J.
_______________________________
Myron C. Duhart, J. JUDGE
CONCUR.
_______________________________
JUDGE
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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.supremecourt.ohio.gov/ROD/docs/.
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