State v. Carver

[Cite as State v. Carver, 2020-Ohio-4984.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HIGHLAND COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 19CA17
:
vs. :
:
JAMES E. CARVER, : DECISION AND JUDGMENT
: ENTRY
Defendant-Appellant. :
_____________________________________________________________
APPEARANCES:
Bryan Scott Hicks, Lebanon, Ohio, for Appellant.
Anneka P. Collins, Highland County Prosecutor, Hillsboro, Ohio, for
Appellee.
_____________________________________________________________
Smith, P.J.:
{¶1} James E. Carver appeals the judgment entry of the Highland
County Common Pleas Court, dated August 9, 2019. After a jury trial,
Carver was convicted of several counts, including the murder and rape of
Heather Camp. On appeal, Carver challenges the sufficiency of the evidence
of his convictions. He also asserts that the trial court erred by allowing his
interview with a detective to be played in its entirety, in violation of the
corpus delicti rule. However, upon review of the record, we find no merit to
Highland App. No. 19CA17 2
Carver’s arguments. Accordingly, we overrule both assignments of error
and affirm the judgment of the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
{¶2} On April 2, 2019, James E. Carver, “Appellant,” was indicted as
follows:
Count 1: Murder, R.C. 2903.02(A), an unclassified felony;
Count 2: Specification that Offender Displayed, Brandished,
Indicated Possession of, or Used a Firearm, R.C.
2941.145;1
Count 3: Rape, R.C. 2907.02, a felony of the first degree;
Count 4: Having Weapons while Under Disability, R.C.
2923.13(A)(2), a felony of the third degree;
Count 5: Domestic Violence, R.C. 2919.25 (A), a felony of
the third degree; and,
Count 6: Tampering with Evidence, R.C. 2921.12(A)(1), a
felony of the third degree.
{¶3} The indictment arose from activities and conduct which occurred
in Highland County on or about Sunday, February 17 through Tuesday,
February 19, 2019. Appellant and Heather Camp, the victim, had an
intermittent romantic relationship. On the evening of Sunday, February 17,
2019, they were traveling together in a black Chevy Trailblazer when
1
The trial court later ordered the counts be renumbered for purposes of trial. Count 2 was submitted to the
jury as a specification finding under Count 1, rather than as an independent count.
Highland App. No. 19CA17 3
Heather was shot in the chest at close range. The evidence demonstrates that
Heather was bleeding internally immediately and supports the conclusion
that her last 48 hours of life were lived in agony.
{¶4} During an interview with Detective Vincent Antinore of the
Highland County Sheriff’s Office, Appellant told the detective that after the
shooting, Heather and he went back to his camper and had sex. According to
Appellant, Heather only complained of her back hurting slightly. According
to Appellant, Heather did not want to go to the hospital for treatment
because she had outstanding warrants.
{¶5} Appellant also advised the detective that on the next evening,
Monday, February 18th, he became concerned about Heather’s condition so
he took her to the home of his friends, Bobby and Kalie Kinnison. The
Kinnisons lived in Greenfield. Appellant said that he and Heather slept at
the Kinnisons’ that evening and did not engage in sex. However, about 3:00
a.m. on Tuesday, February 19, 2019, Heather indicated she had to use the
bathroom. When Appellant attempted to assist her to the bathroom, she
urinated on herself.
{¶6} The record demonstrates that around 5:00 a.m. on the 19th,
Bobby Kinnison took Heather to the Greenfield Adena Medical Center
emergency room (ER). Kinnison told hospital personnel that he found
Highland App. No. 19CA17 4
Heather in the street. Immediate attempts to resuscitate Heather were
unsuccessful.
{¶7} Later that week, Appellant was located at an apartment in
Dayton, Ohio and taken into custody. As indicated above, Appellant gave
an interview. During the interview, Appellant related to the detective
several versions describing the circumstances of Heather’s shooting and the
circumstances which transpired the following two days. Appellant advised
that the weapon used was a .22 Ruger pistol and eventually advised where
the weapon could be located. Appellant consistently maintained that
Heather’s shooting was not purposeful but occurred as the result of a
struggle with the gun.
{¶8} Appellant proceeded to a jury trial in August 2019. The State of
Ohio called various lay and expert witnesses, including medical and law
enforcement witnesses. The State also called Ray Dunihue, who supplied
the gun to Appellant, and the Kinnisons. The testimony presented at trial is
summarized as follows.
{¶9} Dr. Jill Eippert, emergency physician at Greenfield Adena
Medical Center, testified Heather Camp was brought to the ER at 5:15 a.m.
on February 19, 2019. Dr. Eippert first encountered Heather in the
Highland App. No. 19CA17 5
resuscitation room where a Lucas device2 had been applied to Heather’s
chest. At this point, Dr. Eippert was not aware Heather had been shot.
Resuscitation was not successful so Heather was intubated. During
intubation, Dr. Eippert noticed Heather’s jaw was stiff. On cross-
examination she testified that rigor mortis had set in.
{¶10} When Dr. Eippert intubated Heather is when she first noticed
Heather’s head and facial injuries. Dr. Eippert described “deep dark bruises
around both eyes.” Her eyelids were “swollen shut.” Dr. Eippert told the
registrar to call the police because it looked like physical harm was
potentially the reason for the death. Dr. Eippert was also concerned about
internal injuries, so she ordered an ultrasound to look at Heather’s abdomen
and heart. The test revealed blood in the abdomen.
{¶11} Dr. James McKown, Highland County coroner’s investigator,
arrived at the ER at 6:45 a.m. After speaking with Dr. Eippert, Dr. McKown
viewed Heather Camp lying on a gurney and immediately noticed extensive
physical damage to Heather’s face and upper torso, indicative of a
suspicious death. Dr. McKown took various photographs of Heather’s
injuries and tattoos. He was the first person to identify Heather’s gunshot
wound. Dr. McKown specifically testified Heather Camp had extensive
2
According to https://www.lucas-cpr.com/whylucas, this device provides safer chest compressions and
there is no need to switch CPR providers every two minutes.
Highland App. No. 19CA17 6
bruising around the eyes on both sides; an extensive bruise on the forehead;
a bruise on the chin and right side of the head; and bruises of differing ages
on the upper arms and torso. Dr. McKown determined Heather would need
to be sent to the Montgomery County Medical Examiner for an autopsy.
Heather Camp was a “Jane Doe” at this point.
{¶12} Montgomery County assistant deputy coroner, Dr. Bryan Casto,
testified that Heather Camp’s head, hair, and face were beaten and bloody.
He performed the autopsy and prepared a report on February 19, 2019. Dr.
Casto identified photographs of Heather’s external injuries. Based upon a
reasonable degree of medical certainty, Dr. Casto opined Heather’s cause of
death was a gunshot wound to the torso. She was shot at close range, an
inch or less away. Dr. Casto’s testimony will be discussed further below.
{¶13} Dr. Jeff Beery, Highland County Coroner, testified he prepared
the death certificate and determined the manner of death was homicide. Dr.
Beery opined that Heather’s face showed evidence of a severe beating. Dr.
Beery opined death occurred at 3:00 a.m. on the 19th with a range of three
hours either way. He also testified it was common for a person’s bladder to
release at the moment they pass. To a reasonable degree of medical
certainty, Dr. Beery opined Heather’s cause of death was a near-range
gunshot wound to the torso.
Highland App. No. 19CA17 7
{¶14} Robert Buzzard, an FBI agent, testified that on February
21, 2019 at 6:45 p.m., he and other FBI task force members located
Appellant at a residence on East Third Street in Dayton. He was taken
into custody.
{¶15} Mary Camp, Heather’s mother, testified she had daily contact
with Heather. Heather and Appellant lived together at times. Prior to
Heather’s death, Mary was trying to get Heather to turn herself in because
she had outstanding warrants.3
{¶16} On February 18th, Mary became concerned about Heather’s
whereabouts because she had not heard from Heather. Mary texted
Appellant to attempt to get in touch with Heather. On Monday, February
18th, Appellant assured Mary through text that Heather was fine. Mary’s
text conversations with Heather and with Appellant were admitted as
exhibits.
{¶17} Tyler Lawrence testified that on Sunday, February 17th, 2019,
Heather and he went to Wal-Mart in Hillsboro and then to Wilmington.
While they were on their way to Wilmington, they saw Appellant in a
Trailblazer following them. They drove faster to avoid him. However, later,
around 4:00 p.m. or 5:00 p.m., Lawrence drove Heather to meet Appellant
3
According to the Clinton County, Ohio Clerk of Courts online records, Heather had failed to appear in
Clinton County on December 14, 2018, for hearings in several open criminal cases.
Highland App. No. 19CA17 8
for dinner at El Dorado in Wilmington. On February 19, 2019, Lawrence
took officers to Appellant’s camper.
{¶18} Roy Dunihue testified that Appellant texted him on Sunday,
February 17, 2019, and asked to borrow a gun. Dunihue provided Appellant
with a .22 pistol he had previously obtained from a friend in Fayette County.
At about dark Appellant arrived in front of Dunihue’s house. Dunihue took
the gun out to Appellant’s vehicle. The gun was in a holster, loaded, with
the safety on when he gave it to Appellant. Heather Camp was sitting in the
front seat with Appellant. Dunihue identified State’s Exhibit 1, a Ruger .22
Mark 1, as the gun he gave Appellant.
{¶19} Dunihue further testified that Appellant texted a couple of days
later and indicated he had placed the gun in Dunihue’s truck. Dunihue then
took the gun to his friend’s house and put it in a barn. The gun was not
returned with the holster. Dunihue assisted Highland County Sheriff’s
officers with retrieving the gun on February 22, 2019.
{¶20} Bobby and Kalie Kinnison lived in Greenfield with their
children. They recalled many of the same facts in their testimony. On
Sunday, February 17, 2019, they had both been “up” for days, having used
drugs. Appellant stopped by their home on the 17th for the purpose of drug
Highland App. No. 19CA17 9
trafficking. Bobby Kinnison testified that Appellant messaged him on the
18th and said somebody had been shot and to open the garage.
{¶21} Upon their arrival around 8:00 or 8:30 p.m., Heather Camp was
with Appellant. She was swollen and bruised and looked like she had been
beaten. Appellant told them another man shot Heather, trying to shoot
Appellant. Appellant and Bobby carried Heather upstairs from the garage to
the living room and placed her on a futon. Upon observing Heather’s
conditions, both Kalie and Bobby told Appellant repeatedly that she needed
to go to the hospital. Appellant told them Heather had outstanding warrants
and didn’t want to go to jail. Appellant acted “indifferent, agitated.”
{¶22} Kalie observed Heather’s injuries: “Her face had been badly
bruised; her eyes were swollen shut; she had swelling around her rib-cage
and very labored breathing.” Heather showed Kalie a bullet wound in the
center of her chest. She repeatedly said her left shoulder hurt and was
having a lot of pain in her left side. Kalie helped Heather into a sitting
position and examined her back. There was no exit wound.
{¶23} Kalie testified Heather was “still slightly lucid, uh, she could
still move around a little bit, uh, she could move her arms; but other than
that, she needed…at that point she needed help.” Kalie testified as she was
assisting Heather, Appellant was standing over Kalie’s shoulder.
Highland App. No. 19CA17 10
{¶24} The Kinnisons both testified that Kalie contacted her own
mother, Mandy Knisley, to look at Heather. They recalled that Appellant
and Bobby helped Heather downstairs to the garage for the purpose of taking
her to the hospital. However, moments later, they brought Heather upstairs
again. Kalie moved the futon from the living room to a bedroom. Bobby
and Appellant carried Heather to the bedroom.
{¶25} Bobby testified that while in the garage he overheard a
conversation between Appellant and Heather. She wanted to go to the
hospital. Appellant said: “Straighten up, bitch,” and he slapped her face.
At this point Bobby suggested bringing Heather back upstairs because he
wasn’t sure what was going to happen to her.
{¶26} Appellant and Heather stayed in one bedroom together. Kalie
locked herself and her children in another bedroom. Bobby Kinnison sat up
all night in the living room. Around 5:00 a.m. Bobby took Heather to the
hospital and told them he found Heather down the street. He did not tell
them she had been shot. He did not know Heather was already dead, but
when he carried her, he noticed she felt limp.
{¶27} The next morning, Kalie drove Appellant’s Trailblazer to take
her daughter to school. Kalie found a .22 shell casing on the passenger side
floor-board. The Kinnisons testified they put the shell casing in a cell phone
Highland App. No. 19CA17 11
box with other bullets in a kitchen cabinet. Appellant left around 9:00 or
10:00 a.m. He returned later in the day with a girl, C.G. Appellant seemed
nervous and “on edge.” C.G. told Bobby to put seat covers on the
trailblazer.
{¶28} Both Kinnisons acknowledged they were not initially truthful
with law enforcement officers because of their fear of Appellant. Kalie was
terrified something would happen to her family. She described Appellant as
“menacing” and testified Appellant had ties with people he called “The
Brotherhood.” Bobby testified he was scared of getting into trouble and
scared of Appellant. Since that time, both have completed drug
rehabilitation and Bobby is employed.
{¶29} On cross-examination, Kalie admitted that Heather did say
twice that she didn’t want to go to the hospital because she had warrants and
would go to jail. On cross-examination, Bobby admitted he was getting
drugs from Appellant and re-selling them out of his home. He admitted that
when he first talked to the police he didn’t tell them Appellant slapped
Heather.
{¶30} Mandy Jo Knisley, Kalie’s mother, acknowledged her felony
record and testified she was currently undergoing drug rehabilitation. When
Mandy arrived at the Kinnisons’ home, Heather was lying on a futon.
Highland App. No. 19CA17 12
Mandy described Heather: “She was just very beaten. She was just really
tiny. Her eyes were swollen; her lips were black; and she was laying there
by herself.” Mandy took Heather’s hand. Heather was spitting blood clots
out of her mouth. Appellant explained that someone shot a bullet that
grazed Heather. Mandy examined Heather, saw the bullet hole, and said
“This doesn’t look like a graze.”
{¶31} Mandy testified she tried to comfort Heather. Heather’s eyes
were shut. Appellant was pacing. Mandy asked Heather if she wanted help,
if she wanted to go to the hospital. Heather indicated “that she did; that she
didn’t want to die.” Appellant then said: “No. She’s not going to the
hospital.” Appellant told Mandy this was because Heather had a warrant,
“he loved her, and he didn’t want her to go to the hospital.” Mandy testified
she told Appellant several times that he needed to take Heather to the
hospital. As she left, Appellant was putting Heather in the passenger seat of
the car.
{¶32} Haydee Lara, a forensic DNA analysist with the Ohio Bureau
of Criminal Investigation (BCI) prepared a DNA report, Exhibit 16. Ms.
Lara’s opinions were given within a reasonable degree of medical certainty.
Lara testified she tested nipple swabs taken from Heather Camp’s breasts.
She also tested oral swabs taken from Appellant. The nipple swabs
Highland App. No. 19CA17 13
contained a DNA mixture consistent with Heather Camp and Appellant. She
testified that Exhibit 21, a pair of boots with blood stains, also contained a
DNA mixture of Heather and Appellant inside the left boot.
{¶33} Andrew McClelland, a forensic firearm examiner with BCI,
identified State’s Exhibit 1 and State’s Exhibit 24. Exhibit 1 was a Ruger
model .22 caliber long rifle semiautomatic pistol. Exhibit 24 was
McClelland’s report on a test of the gun. McClelland testified to a
reasonable degree of scientific certainty that the firearm was in good
working order.
{¶34} McClelland testified about the gun’s safety mechanism. He
explained that if placed into the safe position the firearm will not fire when
the trigger is pulled. In order to fire the safety must be disengaged.
McClelland testified a person would have to first take the safety off and then
pull the trigger to make it fire.
{¶35} Lieutenant Brian McNeil of the Greenfield Police Department
searched the Kinnisons’ residence in Greenfield. He testified the residence
was approximately one city block from the Greenfield ER. Lieutenant
McNeil identified photographs taken at the Kinnison residence: a futon
where Heather Camp was placed; a box inside a kitchen cupboard containing
.22 caliber cartridges; the box itself; the cartridges; a spent shell casing
Highland App. No. 19CA17 14
removed from the box. He also identified photographs of a trash bag on the
front porch and black boots recovered from the trash bag at the Kinnisons’
residence. He placed the items into evidence. Lieutenant McNeil also
assisted in executing a search warrant of Appellant’s black Chevy
Trailblazer.
{¶36} Detective Randy Sanders of the Highland County Sheriff’s
Office located Mary Camp and advised her of Heather’s death. He also
interviewed Heather’s sister, Brandy Camp, and Tyler Lawrence. Lawrence
then took them to Appellant’s camper in Highland County and to the
Kinnisons’ residence in Greenfield. The Kinnisons were initially
interviewed separately. Detective Sanders testified that after Bobby
understood the gravity of the situation, he “broke down” and started crying
and asked to go inside where Kalie was and “get the story straight.”
{¶37} Detective Sanders assisted Detective Antinore in preparing a
search warrant for the camper and assisted in serving the warrant and
searching the camper. He identified photographs of the camper and items
found inside it. The officers found male and female clothing. The camper’s
wall had “James and Heather” written on it. Officers found three bags of
clothing, one containing a pink bra with blood on it and a gray shirt with a
hole and with blood on it. In the bag which contained the bra and shirt,
Highland App. No. 19CA17 15
officers also found three identification cards, one an Ohio Women and
Children’s Program (WIC) card, issued to Heather Camp. Photographs of
the bed showed blood stains on the sheets.
{¶38} On February 21st, officers contacted BCI for assistance in
locating Appellant. Eventually, a license plate reader hit on Appellant’s
vehicle at East Third Street in Dayton.4 Detective Sanders contacted Agent
Buzzard. Buzzard located the Trailblazer in a parking lot on East Third
Street. Appellant was taken into custody.
{¶39} Detective Sanders assisted in searching the East Third Street
apartment and discovered trash bags. One of the trash bags contained boots.
The officers also located a pair of pants with blood stains on them which
came out of a purple Adidas bag.5 They also found Appellant’s wallet.
{¶40} Detective Sanders and other officers went to Roy Dunihue’s
residence in Highland County. Dunihue ultimately took them to a barn in
Fayette County where a .22 Ruger semiautomatic pistol in a plastic bag was
retrieved from a dryer. Detective Sanders identified photographs of the
ammunition and State’s Exhibit 1, the Ruger .22 pistol.
4
A license plate reader attached to a police cruiser logs license plates as the cruiser passes them, recording
the time and location the plate was read.
5
In his interview with Detective Antinore, Appellant explained he had put items in the trash bags to
“downsize.” He also acknowledged ownership of the Adidas bag.
Highland App. No. 19CA17 16
{¶41} Detective Vincent Antinore attended the autopsy. He testified
it was difficult to identify Heather Camp at first because of the “bruising and
apparent beating she had taken.” He assisted in locating Heather’s family
and interviewed Tyler Lawrence, who identified Bobby Kinnison and
directed them to Appellant’s camper. Detective Antinore also assisted with
execution of the search warrant on the camper on February 20th. Over the
next 2 days, he and Detective Sanders focused on apprehending Appellant.
{¶42} Detective Antinore testified about his interview with Appellant.
Detective Antinore testified he had received specialized training in
interviewing suspects. He had been trained to befriend a suspect; “get on the
same level” as the suspect; suggest an “alternate” explanation for the
circumstances of the crime; and establish a bond with the suspect. Detective
Antinore identified State’s Exhibit 122, a disk copy of the actual interview
which he conducted with Appellant.
{¶43} At this point, defense counsel objected, based upon the corpus
delicti rule, to playing any parts of the interview where Appellant referenced
having sex with Heather Camp. After some discussion, the trial recessed for
lunch. After returning from lunch, the court stated:
Counsel, I want to go back and revisit the issue of the tape.
***Because I’m concerned about the corpus delecti rule here.
***The objection was that there has not been independent
evidence of the crime of rape established; therefore, the corpus
Highland App. No. 19CA17 17
delecti rule would prevent the admission of the statements of
the defendant that he engaged in sexual conduct with the
victim. Does that accurately state your objection, right?
{¶44} Defense counsel agreed. After further lengthy discussion, the
trial court overruled the objection. The interview between Detective
Antinore and Appellant was played for the jury.
{¶45} At the conclusion, Detective Antinore testified that he was able
to confirm that Appellant and Heather went to Frisch’s and Burger King on
Monday, February 18th. Surveillance video from Frisch’s demonstrated
Appellant was driving the black Trailblazer. He also testified that in driving
from Frisch’s to Burger King, one would drive past the Highland District
Hospital emergency room.
{¶46} Detective Antinore also testified he assisted with the search
warrant executed on the Trailblazer on February 24th. He identified
photographs of the vehicle as it appeared on February 24th. He also
obtained a search warrant for Appellant’s phone in order to view text
messages and Facebook messages. He identified photographs of text
conversations of Appellant. In one exhibit, Appellant asked an unidentified
person to stop by his camper and remove Heather’s belongings.
{¶47} Detective Antinore thereafter testified to Appellant’s criminal
history of domestic violence convictions. He also testified he swabbed
Highland App. No. 19CA17 18
Appellant’s mouth for DNA. He identified the blue jeans that Appellant was
wearing when Heather was shot. Appellant testified that the jeans were
removed from the Adidas bag. He also identified the pink bra and gray shirt
with blood stains. On cross-examination, Detective Antinore acknowledged
that in the interview, Appellant never explicitly stated “I pulled the trigger
and I meant to shoot her.”
{¶48} After Detective Antinore’s testimony concluded, the State
offered its exhibits and rested. Defense counsel made a Crim.R. 29 motion
for acquittal. Specifically, defense counsel argued as to the murder charge,
that the State had presented no evidence that Appellant purposely caused
Heather Camp’s death. As to the rape charge, counsel argued that the State
had to prove that Appellant knew or should have known that Heather Camp
was unable to consent or to physically resist. He argued that no evidence
had been produced as to that element. The trial court overruled the motion.
{¶49} The jury returned guilty verdicts on murder, rape, assault, and
tampering.6 Appellant was sentenced to a total of 33 years to life in prison.
This timely appeal followed. Where pertinent, we set forth additional facts
below.
6
The jury did not convict Appellant of domestic violence. Instead, he was convicted of the lesser included
offense of assault.
Highland App. No. 19CA17 19
ASSIGNMENTS OF ERROR
“I. THE COURT ERRED IN ALLOWING THE INTERVIEW
TO BE PLAYED WITHOUT REDACTING THE
DISCUSSION ON SEX.
II. THE STATE FAILED TO PROVE BEYOND A
REASONABLE DOUBT THAT IT WAS MURDER
INSTEAD OF RECKLESS HOMICIDE OR THAT IT WAS
RAPE.”
ASSIGNMENT OF ERROR ONE - CORPUS DELICTI RULE
{¶50} Under the first assignment of error Appellant asserts the
trial court erred in allowing the State to play for the jury the portion of
Appellant’s interview in which he discusses alleged consensual sex with
Heather Camp prior to her death. Appellant made a timely objection on this
ground at trial. Appellant’s argument raises the issue of the proper
application of the corpus delicti rule in this case.
STANDARD OF REVIEW
{¶51} We review a trial court's decision as to whether the State
established the corpus delicti of a crime under a manifest weight of the
evidence standard. See State v. Whiting, 4th Dist. Ross, No. 18CA3672,
2019-Ohio-5471, at ¶ 36. See In re W.B. II, 4th Dist. No. 08CA18-2009-
Ohio 1707, ¶ 31 and 32. Thus, we will uphold the trial court's decision as
long as the record contains some competent and credible evidence
independent of the defendant's confession to establish that a crime occurred.
Highland App. No. 19CA17 20
See e.g., State v. Maranda, 94 Ohio St. 364, 114 N.E. 1038, paragraphs one
and two of the syllabus (1916); W.B. at ¶ 32.
LEGAL ANALYSIS
1. Corpus Delicti Rule.
{¶52} “ ‘The corpus delicti of a crime is essentially the fact of the
crime itself.’ ” Whiting, supra, quoting State v. Young, 4th Dist. Washington
No. 12CA14, 2013-Ohio-3418, at ¶ 27, quoting State v. Hofer, 4th Dist.
Adams No. 07CA835, 2008-Ohio-242, ¶ 36; see also State v. Haynes, 130
Ohio App.3d 31, 34, 719 N.E.2d 576 (1998). The corpus delicti of a crime
“is comprised of ‘(1) the act [and] (2) the criminal agency of the act.’ ”
Young, supra, quoting State v. Maranda, supra, at paragraph one of the
syllabus; see also State v. Edwards, 49 Ohio St.2d 31, 34, 358 N.E.2d 1051(1976), vacated on other grounds, 438 U.S. 911, 98 S.Ct. 3147 (1978); State
v. Van Hook, 39 Ohio St.3d 256, 261, 530 N.E.2d 883 (1988). See also In re
W.B., II, supra, at ¶ 33-34; State v. Puckett, 2010-Ohio-6597, 947 N.E.2d
730, ¶ 16 (4th Dist.).
{¶53} The Supreme Court of Ohio noted in Maranda, “[i]t has long
been established as a general rule in Ohio that there must be some evidence
outside of a confession, tending to establish the corpus delicti, before such
confession is admissible.” Maranda at paragraph two of the syllabus; see
Highland App. No. 19CA17 21
also Young at ¶ 27. Thus, a court may not admit an extrajudicial confession
unless the State has produced independent evidence of the corpus delicti of a
crime. Maranda at paragraph two of the syllabus; Hofer at ¶ 36; Young at ¶
27.
{¶54} Our own court, in Whiting, observed:
The quantum or weight of such outside or extraneous evidence
is not of itself to be equal to proof beyond a reasonable doubt,
nor even enough to make it a prima facie case. It is sufficient if
there is some evidence outside of the confession that tends to
prove some material element of the crime charged. (Emphasis
added).
Id. at ¶ 39, quoting Maranda at paragraph two of the syllabus; see also State
v. Edwards, supra, at ¶ 34; State v. Young, supra, at ¶ 27. Further, the
outside or extraneous evidence may be direct or circumstantial. Whiting at
¶ 40; Young at ¶ 27, citing Maranda at 371; see also State v. Nicely, 39 Ohio
St.3d 147, 154-155, 529 N.E.2d 1236 (1988) and State v. Clark, 106 Ohio
App.3d 426, 431, 666 N.E.2d 308 (1995).
{¶55} In this case, the State was allowed by the trial court to play an
unredacted version of Appellant’s interview with Detective Antinore for the
jury. In that interview, Appellant states several times that he had sex with
Heather Camp at his camper after she was shot. The trial court allowed the
entire interview to be played on the basis that the State had some evidence
on one of the elements of rape. The State had argued that the coroner’s
Highland App. No. 19CA17 22
testimony showed that Heather would have been in pain. The State
persuaded the trial court that the coroner’s testimony was enough to meet the
element of “inability to consent due to substantial impairment. “
{¶56} Appellant argues this is simply not enough to rise to a level of
substantial impairment. Appellant points out women often have consensual
sex while in pain or not physically well. Appellant further points out the
evidence that: (1) Heather Camp was shot sometime Sunday evening and
the consensual sex occurred that same evening; (2) both Appellant and
Heather appeared at Frisch’s the following evening; (3) Heather was still
capable of communicating and walking when she arrived at the Kinnisons’
on Monday evening. Appellant emphasizes that although the standard of
“some evidence * * * that tends to prove a material element of the crime
charged” is lower than reasonable doubt, the evidence provided must be
more than “anything goes.” For the reasons which follow, we disagree with
Appellant.
{¶57} As set forth above in Maranda and most recently in Whiting,
the corpus delicti rule is clear that “some evidence [direct or circumstantial]”
is sufficient. In this case, Appellant was convicted of rape, pursuant to R.C.
2907.02(A)(1)(c) which 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
Highland App. No. 19CA17 23
the offender but is living separate and apart from the offender,
when any of the following applies:
***
(c) The other person's ability to resist or consent is substantially
impaired because of a mental or physical condition * * * and
the offender knows or has reasonable cause to believe that the
other person's ability to resist or consent is substantially
impaired because of a mental or physical condition * * *.
{¶58} In response to the defense objection, the prosecutor focused on
the “substantial impairment” element as set forth above. The prosecutor
argued:
So my question then: A material element of rape. But, it
doesn’t have to be only a material element of the sexual assault
part of it; there are other elements to that crime. * * * [Her
physical condition is such that…and we have that testimony. *
* * That she was in bad shape that night; that she would have
been bleeding out immediately; that she would have been in
serious pain; that Gabapentin wouldn’t even have dulled the
pain, wouldn’t have done anything for her. We have that
testimony. So, we have that element.
{¶59} Defense counsel disagreed, indicating that the testimony
regarding Heather Camp’s weakened state and impairment was in reference
to the following day. Defense counsel also pointed out there was no
evidence of cognitive impairment. The prosecutor directed the court and
counsel to the Puckett and Maranda cases. After consideration, the trial
court overruled the objection.
{¶60} We believe the trial court properly analyzed the testimony and
Highland App. No. 19CA17 24
the corpus delicti rule in this case. Haydee Lara, the forensic expert,
testified that she tested the oral swabs taken from Appellant. She also
examined the nipple swabs taken from Heather Camp’s body and
determined the DNA mixture from the nipple swabs to be consistent with
both Heather and Appellant. We agree with the trial court’s conclusion that
there was evidence of sexual contact and possible sexual conduct. We also
agree with the trial court’s conclusion that Dr. Casto, the deputy coroner
who provided expert testimony, provided some evidence that Appellant
knew or had reasonable cause to believe that Heather Camp’s ability to resist
or consent was substantially impaired because of her physical condition.
{¶61} Dr. Casto identified State’s Exhibit 6, the autopsy report
of Heather Camp. He also identified various photographs of
Heather’s body which demonstrated her external injuries: blackened
“raccoon eyes”; a forehead abrasion; a contusion on her nasal bridge;
extensive bruising on her scalp; a large bruise on the right breast area;
scattered bruising of varying colors on her extremities; a bruise on her
buttock. Dr. Casto testified when he removed the medical equipment
on Heather’s chest, he discovered the gunshot wound.
{¶62} Dr. Casto’s autopsy report also documented Heather’s internal
injuries. He testified the bullet grazed her aorta and went through her liver,
Highland App. No. 19CA17 25
esophagus and diaphragm, lodging in her spine. Dr. Casto found blood in
the chest cavity and her belly, testifying that she had over 2 liters of internal
blood loss. Dr. Casto testified, given her size, she had lost a lethal amount
of blood, almost half of her blood, internally. The immediate cause of death
was the blood loss. Based on a reasonable degree of medical certainty, Dr.
Casto opined that she was shot at close range.
{¶63} Dr. Casto opined that Heather was shot with a small caliber
weapon and the bullet just grazed her aorta and lodged in her spine instead
of having an entrance and exit. This explained why she lived a few days
instead of just a few minutes. Dr. Casto described Heather’s physical
condition after suffering the injury, qualifying that he could not be specific:
Would she have pain with this injury? Certainly. Okay, uh,
very early on in the process. Uh, eventually as the bleeding
becomes more brisk and more life threatening, she’ll have other
symptoms, now when that happened, I do not know, right? Uh,
but you would expect a loss or drop in your blood pressure;
your color may change; you may feel cold; you may feel dizzy,
nauseous; you know, lots of things are going to decline as the
blood loss into the chest and abdomen becomes worse and
worse.
{¶64} On cross examination, Dr. Casto testified:
[K]eep in mind, everything else is bleeding, the liver, the
esophagus, the diaphragm, all those are bleeding from point
Highland App. No. 19CA17 26
zero. I mean they began bleeding immediately, there was a
wind path through them…7
{¶65} He also testified regarding the toxicology report. It detected
Gabapentin, amphetamine and methamphetamine. He testified Gabapentin
is supposed to dull nerve pain but he did not know if it would dull “this kind
of pain” or not.
{¶66} Did Dr. Casto’s testimony provide some evidence of substantial
impairment because of her physical condition? Our research has not yielded
any cases with similar fact patterns involving persons substantially impaired
due to physical injury. Many cases have discussed the definition of
“substantial impairment” in the context of cases involving victims who were
mentally disabled or under the influence of intoxicating substances. At least
one of these cases has provided some guidance.
{¶67} State v. Foster, 8th Dist. Cuyahoga No. 108340, 2020-Ohio-
1379, involved allegations of rape of a substantially impaired victim who
went back to Foster’s hotel room after a night of drinking with other
persons, but not with Foster. Foster and the alleged victim met in a cab.
Foster acknowledged having consensual sex with the accuser. He was
convicted of “substantial impairment rape,” R.C. 2907/02(A)(1)(c). On
7
On redirect, he clarified that as soon as the bullet struck the liver and the esophagus, it started
bleeding heavily from those two spots.
Highland App. No. 19CA17 27
appeal the issue was whether Foster knew or had cause to believe victim was
substantially impaired. Foster’s conviction was overturned. In its decision
the appellate court noted there was no testimony that Foster was aware of the
victim’s consumption of a large quantity of alcohol, and none of the State’s
witnesses who interacted with the victim prior to the sexual incident testified
that she showed specific signs or indications of substantial impairment such
that Foster would have or should have known that her ability to consent to
sexual conduct was substantially impaired.
{¶68} The Foster court observed that the term “substantially
impaired” is not statutorily defined and therefore, the term must be given the
meaning “ ‘generally understood in common usage.’ ” Id. at 42, quoting
State v. Zeh, 31 Ohio St.3d 99, 103, 509 N.E.2d 414 (1987). The State can
show substantial impairment by offering evidence “demonstrating a present
reduction, diminution or decrease in the victim's ability, either to appraise
the nature of [her] conduct or to control [her] conduct.” Foster, supra,
quoting, Zeh, at 103-104, 509 N.E.2d 414. Moreover, “substantial
impairment does not have to be proven by expert medical testimony; rather,
it can be shown to exist by the testimony of people who have interacted with
the victim.” Foster, supra, at 45, quoting State v. Brady, 8th Dist. Cuyahoga
Highland App. No. 19CA17 28
No. 87854, 2007-Ohio-1453, at ¶ 78; see also State v. Jones, 8th Dist.
Cuyahoga No. 101311, 2015-Ohio-1818, ¶ 43.
{¶69} Foster further observed:
A person's conduct becomes criminal only when engaging in
sexual conduct with an intoxicated victim when that person
knows or has reasonable cause to believe that the victim's
ability to resist or consent is substantially impaired because of
her intoxication. State v. Noernberg, 8th Dist. Cuyahoga No.
97126, 2012-Ohio-2062, ¶ 11; State v. Rivera, 8th Dist.
Cuyahoga No. 97091, 2012-Ohio-2060, ¶ 22; and State v.
Martin, 12th Dist. Brown No. CA99-09-026, 2000 WL
1145465 (Aug. 12, 2000). “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).
Foster, at ¶47.
Whether an offender knew or had reasonable cause to believe
the victim was impaired may be reasonably inferred from a
combination of the victim's demeanor and others' interactions
with the victim. Jones, 8th Dist. Cuyahoga No. 101311, 2015-
Ohio-1818, at ¶ 43, citing State v. Novak, 11th Dist. Lake No.
2003-L-077, 2005-Ohio-563, ¶ 25. Evidence that should have
alerted an offender to whether a victim was substantially
impaired may include evidence that the victim was stumbling,
falling, slurring speech, passing out, or vomiting. King at ¶ 20;
State v. Hatten, 186 Ohio App.3d 286, 2010-Ohio-499, 927
N.E.2d 632, ¶ 50 (2d Dist.).
Foster, at 48. Foster also referenced State v. Keller, 8th Dist. Cuyahoga No.
106196, 2018-Ohio-4107 (where defendant was present during entire
evening when the victim consumed alcohol and smoked marijuana and
Highland App. No. 19CA17 29
drove her to their friend’s house knowing she could not drive her vehicle due
to her intoxication), and State v. Freeman, 8th Dist. Cuyahoga No. 95511,
2011-Ohio-2663 (defendant sent into motion a scenario where a 15-year-old
victim ended up in the defendant’s van where he supplied potent drugs to
her.)
{¶70} Based upon our review of the pertinent law and the facts of this
case, we find Dr. Casto’s testimony provided some evidence of Heather
Camp’s substantial impairment based upon her physical condition. Dr.
Casto testified she would have been in physical pain “very early on in the
process.” He testified her liver, esophagus, and diaphragm were “bleeding
immediately.”
{¶71} In addition, Appellant’s interview provides additional evidence
of her physical condition after the shooting. In Foster, the court noted that
evidence of substantial impairment is not required to be from expert
witnesses but may be from persons who have interacted with a victim.
While in Foster the defendant didn’t know the alleged victim was drunk and
saw no signs of mental or physical impairment, here Appellant did interact
with Heather Camp after the shooting. Again, a person has knowledge of
circumstances when he is aware that such circumstances probably exist.
R.C. 2901.22(B).
Highland App. No. 19CA17 30
{¶72} Appellant knew or had reasonable cause to believe she was
physically impaired. In the portions of the interview which were not
objected to, Appellant told Detective Antinore that when they went back to
the camper, she walked with his assistance and told him her back hurt.
According to Appellant, Heather asked him to “try to get her some pain
pills.” Appellant stated in the interview, “You can tell she’s not 100%.”
{¶73} The Foster court also noted the State can show substantial
impairment by offering evidence demonstrating “a present reduction * * *
in the victim’s ability, either to appraise the nature of [her] conduct or to
control [her] conduct.” By the time Heather Camp, with a close-range
gunshot wound to the chest, reached Appellant’s camper in rural Highland
County, the evidence suggests a reduction in her ability to control her
conduct. With immediate internal bleeding, her need for assistance with
walking, back pain, and request for pain medication, it is unlikely that
Heather could have controlled her “physical conduct.” It is unlikely that she
could have escaped Appellant’s Trailblazer or escaped his camper and
gotten away from him under the circumstances of her substantially impaired
physical condition.
{¶74} While the trial court and parties focused on Heather’s
substantially impaired physical condition, arguably, Appellant knew or had
Highland App. No. 19CA17 31
reasonable cause to believe that Heather’s ability to consent was
substantially impaired because of her mental condition. We are mindful that
all medical witnesses and experts testified that Heather’s face, head, and
scalp were badly bruised and beaten, so much so that her eyes were swollen
shut. In fact, the evidence demonstrates that she appeared to be badly beaten
about the head when she arrived at the Kinnisons’. Dr. Casto’s testimony
noted “early cerebral edema,” which according to him meant swelling of the
brain. In his interview, Appellant said immediately after Heather was shot,
she said “Motherfucker, you shot me.” At that point of the interview,
Appellant told Detective Antinore, “She’s not fine. Like in shock.” All this
testimony suggests that Heather’s mental condition was also impaired.
{¶75} For the foregoing reasons, we find the trial court did not err in
its analysis of the corpus delicti rule. We find there was some evidence that
Heather Camp’s physical condition was substantially impaired. This was
some evidence of a material element of the crime of rape. Therefore, the
trial court did not err by overruling Appellant’s objection to playing portions
of the interview with Detective Antinore in which Appellant discussed
consensual sex. As such, we find no merit to Appellant’s argument that the
trial court erred in allowing the full interview to be played and without
Highland App. No. 19CA17 32
redacting the portions referring to consensual sex. Accordingly, the first
assignment of error is overruled.
ASSIGNMENT OF ERROR TWO -
SUFFICIENCY OF THE EVIDENCE
STANDARD OF REVIEW
{¶76} “ ‘A claim of insufficient evidence invokes a due process
concern and raises the question of whether the evidence is legally sufficient
to support the verdict as a matter of law.’ ” Whiting, supra, at ¶ 36, quoting
State v. Blanton, 2018-Ohio-1278, 110 N.E.3d 1, ¶ 12 (4th Dist.), citing
State v. Wickersham, 4th Dist. Meigs No. 13CA10, 2015-Ohio-2756, ¶ 22;
State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). “When
reviewing the sufficiency of the evidence, our inquiry focuses primarily
upon the adequacy of the evidence; that is, whether the evidence, if believed,
reasonably could support a finding of guilt beyond a reasonable doubt.”
Blanton at ¶ 12, citing Thompkins at syllabus. “The standard of review is
whether, after viewing the probative evidence and inferences reasonably
drawn therefrom in the light most favorable to the prosecution, any rational
trier of fact could have found all the essential elements of the offense beyond
a reasonable doubt.” Blanton at ¶ 12; citing Jackson v. Virginia, 443 U.S.
307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Jenks, 61 Ohio
St.3d 259, 273, 574 N.E.2d 492 (1991). “Furthermore, a reviewing court is
Highland App. No. 19CA17 33
not to assess ‘whether the state's evidence is to be believed, but whether, if
believed, the evidence against a defendant would support a conviction.’ ”
Blanton at ¶ 12, quoting Thompkins, supra, at 390.
{¶77} This test raises a question of law and does not allow us
to weigh the evidence. See Whiting, at ¶ 37; State v. Martin, 20 Ohio
App.3d 172, 174, 485 N.E.2d 717 (1983). Rather, the test “gives full play to
the responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from
basic facts to ultimate facts.” Jackson at 319. We reserve the issues of the
weight given to the evidence and the credibility of witnesses for the trier of
fact. See State v. Thomas, 70 Ohio St.2d 79, 79–80, 434 N.E.2d 1356(1982); State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212, paragraph one
of the syllabus (1986).
LEGAL ANALYSIS
{¶78} For ease of analysis, we begin with Appellant’s challenge of
his murder conviction. He asserts that the evidence was insufficient to
support proof of murder beyond a reasonable doubt and instead supports a
conviction for reckless homicide. For the reasons which follow, we
disagree.
1. Murder
Highland App. No. 19CA17 34
{¶79} Appellant was convicted of murder, R.C. 2903.02(A), which
states: “No person shall purposely cause the death of another * * *.” A
person acts purposely when it is the person's specific intention to cause a
certain result, or, when the gist of the offense is a prohibition against
conduct of a certain nature, regardless of what the offender intends to
accomplish thereby, it is the offender's specific intention to engage in
conduct of that nature. R.C. 2901.22 (A). Appellant concedes responsibility
for causing Heather Camp’s death; however, he argues the State had
insufficient evidence that Appellant intended for her to be shot. Appellant
urges us to conclude that the physical evidence, as well as his interview,
supports a finding of reckless homicide instead of murder.
{¶80} Appellant admits that it was reckless to get the gun out of the
holster; reckless to point the gun at anyone; reckless to either turn the safety
off or be in such a position that the safety could come off; and reckless to
hold the gun in a way that the trigger could be pulled. However, Appellant
argues the evidence shows he was the person who told them where the gun
could be recovered. He also argues that the very serious crime of reckless
homicide motivated his evasive actions. Additionally, he asserts that taking
her out in public and asking for help are not congruent with having
intentionally harmed her. In fact, Appellant argues his behavior is consistent
Highland App. No. 19CA17 35
with someone who actually cared about Heather Camp and also realized he
was in serious trouble.
{¶81} We are not persuaded. We have reviewed Appellant’s video-
recorded interview with Detective Antinore which the jury saw at trial.
First of all, it is a mischaracterization to indicate that Appellant was
completely forthcoming with the circumstances surrounding the gun. While
he eventually told officers that he obtained the gun from Roy Dunihue, he
first told officers that the gun was stolen from his house and actually in
Heather’s bag. Then, three times he told officers that the gun was thrown
out of the car onto the side of the road after the shooting. Not until the very
end does Appellant inform the officers that he returned it to Dunihue’s truck.
{¶82} We are likewise not convinced that Appellant taking Heather
through the Frisch’s drive-thru and later to the Kinnisons’ house is indicative
of his concern for her. In the interview, Appellant admits that it is dark and
Heather didn’t eat anything. There’s no evidence he asked anyone at
Frisch’s to help Heather. Additionally, the evidence demonstrated he also
drove her to Burger King, bypassing a hospital facility where he could have
sought help between the two restaurants.
{¶83} In the interview Appellant relates going back to his camper
after the shooting. When he decided they should leave the camper,
Highland App. No. 19CA17 36
Appellant told officers that he pulled his car up to the back of the camper
and had Heather come out that way so his neighbors Amy and Todd would
not see her. We cannot agree that these actions demonstrated concern for
Heather. Rather, these actions tend to demonstrate Appellant’s concern for
himself and concealing his crime.
{¶84} Further, Appellant’s statements to the officers that he insisted
Heather go to the hospital but she didn’t want to because she had warrants
are easily construed as self-serving. These statements are obviously contrary
to the testimonies of Mandy Jo Knisley, Bobby Kinnison, and Kalie
Kinnison, who each testified that Heather stated at least once that she wanted
to live. In particular, it appears that Mandy Jo Knisley was so insistent that
Heather be taken for treatment that Appellant concocted the scene in which
he and Bobby take Heather downstairs to the garage as if they were taking
her to the hospital, but then bring her back upstairs after Mandy leaves.
Importantly, Bobby Kinnison also testified that in the garage, Appellant
slapped Heather’s face, already obviously beaten, and told her to,
“Straighten up, bitch.” Ostensibly, Appellant was admonishing Heather to
“straighten up,” and not indicate to anyone again that she wanted to live.
{¶85} As one can see, the evidence in this case demonstrates the
volatile nature of Appellant and Heather Camp’s relationship. There is
Highland App. No. 19CA17 37
evidence of physical abuse and substance abuse. The evidence also suggests
that jealousy was a possible motive for shooting Heather.
{¶86} The evidence indicates that Appellant had dinner plans with
Heather Camp on Sunday, February 17, 2019. Roy Dunihue testified that
sometime on that date, Appellant texted him and asked to borrow a gun.
After drinking with Heather and arguing, Appellant went to Dunihue’s place
with Heather in the vehicle to pick up the gun. Dunihue testified he gave
Appellant the gun in a holster with the safety on. According to one version
provided by Appellant, Heather was shot shortly after he received the gun
from Dunihue, while they were still sitting in Dunihue’s driveway.
{¶87} During Appellant’s emotional interview, he mentioned Mike
Scholler several times. In the first few moments of the interview, he stated
that, “She was driving the Trailblazer. [They] got into it over Mike Scholler.
I grabbed the gun and it went off.” He also indicates that Mike Scholler is in
Hamilton, Ohio. Appellant repeatedly explains they argued over Mike
Scholler, but at times indicates Heather grabbed the gun. He even tells
Detective Antinore that Heather said she’d “set Mike up for him.”
{¶88} Towards the end of the interview, Appellant seems to describe
the overall toxic nature of his relationship with Heather. He states: “She’s
on the run…I’m selling dope. We’ve got no one to lean on but each other.
Highland App. No. 19CA17 38
We always fuck it up.” Facts tending to suggest Appellant’s jealousy with
regard to Heather are scattered throughout his interview.
{¶89} Earlier in the interview, Appellant stated there was “only one
person I had a problem with her seeing - Tyler.” Appellant stated that when
he picked [Heather] up, he “didn’t want to hear about the past.” Appellant
told Detective Antinore he took her to her sister’s house to pick up her
“stuff.” While Heather is inside and Appellant is outside waiting for her, her
“ex-boyfriend pulls up” and “come in.” “She’s inside 20-30 minutes.”
Appellant got mad and left. He texts her and she replies, “Why are you
being an asshole?”
{¶90} At the end of the interview, Appellant relates that they were
arguing and he told her to “get off him.” He pointed the gun at her and she
kicked him. Appellant stated, “I didn’t want to argue with her.” Then he
provides information that he has not previously provided in the first part of
the interview. Appellant told Detective Antinore: “I was mad, I put money
up for bail. I wanted to get a hotel room. She said she was busy. Always
something stupid between us.”
{¶91} While during the interview Appellant maintained that he didn’t
intend to shoot Heather and that he only pointed the gun to scare her, we
believe the jury could reasonably infer that Appellant shot Heather out of
Highland App. No. 19CA17 39
jealousy. The evidence provided in the interview indicates that Heather had
ongoing relationships with “Tyler,”8 an “ex-boyfriend,” and Mike Scholler,
which caused Appellant to be upset. They argued at dinner and Mike
Scholler came up. According to Appellant, Heather told him she saw Mike
Scholler at Wal-Mart earlier. Appellant may not have actually planned for
days or weeks to shoot Heather Camp, but he did make arrangements to
obtain a gun on a day he argued with her. Appellant pointed a gun at her
with the safety off – a gun that was given to him holstered with the safety
on, according to Dunihue’s testimony. A jury could certainly reasonably
infer that Appellant purposely pulled the trigger with the intention of killing
her.
{¶92} Our conclusion that Appellant’s actions were purposeful is
bolstered by evidence of jail phone calls made while Appellant awaited trial.
Detective Antinore testified Appellant made approximately 7000 calls from
the Highland County jail. Detective Antinore regularly reviews the phone
calls made from the jail. He reviewed a call log which demonstrated that on
March 30, 2019, Appellant made a phone call during which he told the other
speaker that he “knew the safety was off the gun.”
8
We do not know whether or not Tyler refers to Heather’s friend Tyler Lawrence, who drove them around
earlier in the day. Tyler Lawrence testified that Appellant followed them earlier in the day between
Wilmington and Highland County.
Highland App. No. 19CA17 40
{¶93} Additionally, Roy Dunihue testified he handed Appellant the
gun in a holster with the safety on. Andrew McClelland, the BCI expert
who tested the gun testified that in order to fire the firearm, the safety must
be disengaged. In his interview with Detective Antinore, Appellant
explained at least twice that the shooting occurred as soon as he brought the
gun into the vehicle. We think it may then be reasonably inferred that
Appellant purposely removed the gun from the holster and removed the
safety mechanism with the intention of firing the gun.
{¶94} Detective Antinore’s testimony regarding jail phone calls also
belies Appellant’s self-serving statements in his interview and on appeal that
he was trying to help her. In a June 6, 2019 jail phone call, Appellant
discussed Heather’s outstanding warrants. Detective Antinore testified:
“James tells the other individual that he’s talking to, that when he met with
Heather Camp at El Dorado’s Restaurant in Wilmington, her intention was
to turn herself in on the warrants that she had.” This directly undermines
Appellant’s interview statements in which he stated that it was Heather who
did not want to seek medical treatment for fear of being taken to jail.
{¶95} Detective Antinore further testified, “[Appellant] observed a
plastic bag with loose leaf tobacco that she intended to take into the jail with
her when she turned herself in.” Detective Antinore further identified a
Highland App. No. 19CA17 41
State’s exhibit tote bag taken from Appellant’s camper with the bloody bra
and shirt. Inside the tote bag was also a clear plastic bag containing loose
leaf tobacco, as described in the phone call.
{¶96} “ ‘When a court reviews the record for sufficiency, “[t]he
relevant inquiry is 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. Bennington, 4th Dist. Adams No. 18CA1078, 2019-Ohio-4386, at ¶ 11,
quoting State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d
930, ¶ 146, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492(1991), paragraph two of the syllabus; following Jackson v. Virginia, 443
U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “The court must defer to
the trier of fact on questions of credibility and the weight assigned to the
evidence.” State v. Dillard, 4th Dist. Meigs No. 13CA9, 2014-Ohio-4974,
2014 WL 5800342, ¶ 22, citing State v. Kirkland, 140 Ohio St.3d 73, 2014-
Ohio-1966, 15 N.E.3d 818, ¶ 132; State v. Lodwick, 2018-Ohio-3710, 118
N.E.3d 948, ¶ 9 (4th Dist.). In this case, the trial court gave standard Ohio
jury instructions on reasonable doubt, credibility of witnesses, direct
evidence, circumstantial evidence, and inferences to be made. Specifically,
the trial court instructed:
Highland App. No. 19CA17 42
To infer, or to make an inference, is to reach a reasonable
conclusion, or deduction of facts, which you may, but are not
required to make, from other facts which you have found to
have been established by direct evidence. Whether an inference
is made rests entirely with you.
{¶97} In this case, we defer to the jury who heard the testimony of the
witnesses and also viewed Appellant’s video interview. We find there was
sufficient evidence from which a rational person could find evidence of
Appellant’s intent to shoot Heather Camp beyond a reasonable doubt. Thus,
we find no merit to this argument contained within the second assignment of
error.
2. Rape
{¶98} Appellant argues that the State failed to prove beyond a
reasonable doubt that Appellant committed rape. The elements of rape, R.C.
2907.02(A)(1)(c), are set forth fully above at paragraph #57. Appellant
challenges the sufficiency of the evidence on the element of “substantial
impairment,” asserting that the jury did not have sufficient evidence to
conclude that Heather Camp was substantially impaired and therefore unable
to give consent to sexual conduct. In our analysis of the first assignment of
error, we considered whether there was some evidence tending to prove the
material element of substantial impairment in order to properly admit
Appellant’s confession to having had consensual sex with Heather Camp.
Highland App. No. 19CA17 43
{¶99} The corpus delicti rule is an evidentiary ruling, State v. Ashe,
2nd Dist. Montgomery No. 26528, 2016-Ohio-136, at ¶ 9, and is satisfied by
“a rather low” evidentiary standard. State v. Blevins, 2nd Dist. Montgomery
No. 24006, 2011-Ohio-381, at ¶ 27, citing State v. Barker, Montgomery
App. No. 23691, 2010-Ohio-5744, ¶ 10. However, here a different standard
is required. Here we must determine whether the evidence, if believed,
reasonably could support a finding of guilt beyond a reasonable doubt.
{¶100} In arguing for a rape conviction, the State pointed out that
Appellant shot Heather Camp in the center of the chest and, according to
Appellant, returned to his camper in Highland County later and had sex with
her. The State pointed to the nipple swabs which indicated Appellant’s
DNA on both nipples. In closing, the State also pointed to Dr. Casto’s
testimony. The State argued:
Her mental state was such that this man had shot her in the
chest. * * * At that point you can draw the inference, rely on the
circumstantial evidence, that [Heather] was in no physical or
mental state to consent or resist the defendant having sexual
intercourse with her. And the Defendant knew or should have
known that the condition existed, because he caused the
condition. In order to prove that the defendant had reasonable
cause to believe that Heather’s ability to resist or consent was
substantially impaired because of a physical or mental
condition, you must compare him to an ordinary person.
Would an ordinary person who had just shot Heather in the
chest believe that Heather’s ability to resist or consent was
substantially impaired?
Highland App. No. 19CA17 44
{¶101} As indicated above, we have not found other rape cases
containing fact patterns in which the “substantial impairment” element was
based upon a physical impairment. In analyzing Appellant’s conviction
pursuant to R.C. 2907.02(A)(1)(c), we find other cases’ discussion of other
pertinent factors to be instructive. In State v. Bender, 3rd Dist. Union No 14-
19-22, 2020-Ohio-722, Bender was convicted of rape pursuant to R.C.
2907.02(A)(2): “No person shall engage in sexual conduct with another
when the offender purposely compels the other person to submit by force or
threat of force.” The 3rd District court discussed the legal definition of “fear
or duress.” On appeal, Bender argued there was insufficient evidence to
prove that Bender compelled his victim to engage in sexual conduct by force
or threat of force. The appellate court noted:
(“ ‘[T]he key inquiry for determining whether the State
presented sufficient evidence on the element of force is whether
the “victim's will was overcome by fear or duress.” ’ ”), State v.
Stevens, 2016-Ohio-446, 58 N.E.3d 584 (3rd Dist.) at 20,
quoting State v. Wine, 3d Dist. Auglaize No. 2-12-01, 2012-
Ohio-2837, ¶ 40, quoting In re Forbess, 3d Dist. Auglaize No.
2-09-20, 2010-Ohio-2826, ¶ 40, citing State v. Heft, 3d Dist.
Logan No. 8-09-08, 2009-Ohio-5908, ¶ 88, citing State v.
Eskridge, 38 Ohio St.3d 56, 58-59 (1988). “[I]f the defendant
created the belief that physical force will be used in the absence
of submission, then threat of force can be inferred”—that is, a
“threat of force includes both explicit and implicit threats”
because “[n]othing in the rape statute requires the threat of
force to be direct or express.” State v. Rupp at ¶ 33.
Highland App. No. 19CA17 45
{¶102} See also State v. Schaim, 65 Ohio St. 3d 51, 1992-Ohio-31,
600 N.E.2d 661, at paragraph one of the syllabus (“The ‘force or threat of
force’ element ‘can be inferred from the circumstances surrounding sexual
conduct.’ ”). “In order for a defendant to overcome his victim's will by fear
or duress, the defendant would have had to engage in sufficient behavior
toward the victim. This behavior is objective and its effect is viewed in light
of the totality of facts and circumstances existing at the time of the alleged
rape.” Rupp at ¶ 41. See also Stevens at ¶ 21 (“ ‘[T]he amount of force
[necessary to prove forcible rape under R.C. 2907.02(A)(2)] must be
examined in light of the circumstances.’ ”), quoting State v. Runyons, 3d
Dist. Union No. 14-91-30, 1992 WL 136196, *2 (June 9, 1992). Bender,
supra, at ¶ 30. In Bender’s case, the appellate court found that based on the
totality of the circumstances, a rational trier of fact could infer that his
victim’s state of fear or duress during a prolonged period of torture was such
that she was compelled to submit to the sexual conduct to end the torture.
See also Thomas, 6th Dist. Lucas No. L-17-1266, 2019-Ohio-1916, at ¶ 27.
{¶103} In State v. Salti, 8th Dist. Cuyahoga No. 106834, 2019-Ohio-
149, the defendant appealed multiple convictions of rape and kidnapping of
multiple young female victims he met online or through a third person.
Highland App. No. 19CA17 46
Salti’s convictions were also brought pursuant to R.C. 2907.02(A)(2). The
appellate court observed:
“The force and violence necessary to commit the crime of rape
depends upon the age, size and strength of the parties and their
relation to each other.” State v. Eskridge, 38 Ohio St.3d 56, 58,
526 N.E.2d 304 (1988). “Force need not be overt and
physically brutal, but can be subtle and psychological. As long
as it can be shown that the rape victim's will was overcome by
fear or duress, the forcible element of rape can be established.”
State v. Fowler, 27 Ohio App.3d 149, 154, 500 N.E.2d 390 (8th
Dist.1985).
Salti, supra, at ¶92.
{¶104} In Salti’s case, the appellate court found that “the constant
threat of violence caused [the victims] to “agree” to perform oral sex on a
stranger behind a Walgreens store. Then, during the encounter, [the victims]
recognized the stranger as Salti, and Salti threatened them by brandishing a
firearm and a knife. Id. at 120. The appellate court found, therefore, there
was sufficient evidence that Salti engaged in sexual conduct with [the
victim] against her will and that he used the threat of force to compel her
submission. Therefore, there was sufficient evidence to support the rape
convictions.
{¶105} Recognizing that Bender and Salti were not convicted under
the same subsection of the rape statute, we agree with the State’s argument
that a reasonable person could make the inference that after Heather Camp
Highland App. No. 19CA17 47
was shot in the chest after struggling with Appellant, that she was
substantially physically impaired so as to be unable to give consent to sex.
As discussed above relative to Foster, Appellant did in fact know that
Heather was physically injured since he set in motion the events that caused
her to be shot in the chest at close range. He did observe specific signs of
impairment and in his interview told Detective Antinore that “she was not
100%”, and at his camper she asked for pain pills. It may be inferred that
given her physical injuries and substantial physical impairment, Heather
knew she would not be able to resist sex with Appellant. As in Bender, it
may be inferred that Heather may have feared further physical violence if
she did not consent to sex. Appellant admitted hitting her in the forehead
and the side as they drove prior to the shooting. Heather needed assistance
walking into the camper. Given her physical injuries, it is reasonable to
infer that Heather knew resistance was or would have been futile.
{¶106} The Salti court discussed that force may be subtle and
psychological, and that the size and strength of the parties is relevant. The
Salti court concluded that the “constant threat” to the victims caused them to
“agree” to sex. Heather Camp had been hit and shot in the chest at close
range. Mandy Knisley described Heather’s stature as “tiny.” It may be hard
to imagine what more could have happened to her, but it is reasonable to
Highland App. No. 19CA17 48
infer that Heather, in her substantially impaired physical state, may have
agreed to consensual sex to avoid further violence.
{¶107} For the foregoing reasons we find no merit to Appellant’s
argument that there was insufficient evidence that Heather Camp was
substantially impaired so as to be unable to give consent to sex. We find any
rational trier of fact could have found the evidence of substantial impairment
beyond a reasonable doubt. Accordingly, we hereby overrule the second
assignment of error.
{¶108} Having found no merit to either of Appellant’s assignments of
error, the judgment of the trial court is affirmed.
JUDGMENT AFFIRMED.
Highland App. No. 19CA17 49
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Highland County Common Pleas Court to carry this judgment into
execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Abele, J. and Hess, J. concur in Judgment and Opinion.
For the Court,
__________________________________
Jason P. Smith
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
Highland App. No. 19CA17 50