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State of Ohio v. David A. Kelley

September 30, 2011



The opinion of the court was delivered by: Carr, Presiding Judge.

Cite as State v. Kelley,



{¶1} The appellant, David Kelley, Sr., appeals the judgment of the Summit County Court of Common Pleas. This Court affirms.


{¶2} On August 28, 2008, the Summit County Grand Jury indicted Kelley on one count of rape in violation of R.C. 2907.02(A)(2)/(A)(1)(c), a felony of the first degree; one count of aggravated burglary in violation of R.C. 2911.11(A)(1), a felony of the first degree; and one count of possession of marijuana in violation of R.C. 2925.11(A)(C)(3), a minor misdemeanor. All charges stemmed from an incident which occurred on August 7, 2008. The substantive facts are discussed below. Kelley pleaded not guilty to the charges and the matter proceeded to trial. On January 9, 2009, a jury found Kelley guilty of rape and aggravated robbery. The charge of possession of marijuana was dismissed on the motion of the State. The trial court issued its sentencing entry on February 18, 2009. Kelley was sentenced to a total of fourteen years imprisonment. Kelley was also classified as a Tier III sex offender.

{¶3} On March 11, 2009, Kelley filed a notice of appeal. On appeal, Kelley raises three assignments of error.




{¶4} In his first assignment of error, Kelley argues that his rape conviction was not supported by sufficient evidence. This Court disagrees.

{¶5} In support of his argument, Kelley argues that "the evidence fails to establish that [he] engaged in sexual conduct with D.M. by compelling her to submit by force or threat of force, or that [he] engaged in sexual conduct with D.M. when her ability to consent was substantially impaired because of a mental or physical condition." Kelley distinguishes this case from circumstances confronted by the Eighth District in State v. Clark, 8th Dist. No. 90148, 2008-Ohio-3358 and State v. Younger, 8th Dist. No. 86235, 2006-Ohio-296, where the respective victims were asleep when the sexual conduct began. Kelley notes that, "[i]n fact, it was her thoughts and concerns about her surroundings, and what she had heard before the sexual conduct began, that caused her to turn around and realize that the person engaging in sexual conduct with her was not her boyfriend." Thus, according to Kelley, the State did not prove beyond a reasonable doubt that D.M. was compelled to submit to force or the threat of force. Kelley further argues that because his conviction for aggravated robbery was predicated upon the offense of rape, that conviction must be overturned as well.

{¶6} Kelley was convicted of rape under R.C. 2907.02(A)(2)/(A)(1)(c), which states:

"(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:

"(c) The other person's ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age, 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 or because of advanced age.

"(2) No person shall engage in sexual conduct with another when the offender purposefully compels the other person to submit by force or threat of force."

{¶7} The law pertaining to a challenge to the sufficiency of the evidence is well settled:

"An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The 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. Galloway (Jan. 31, 2001), 9th Dist. No. 19752.

The test for sufficiency requires a determination of whether the State has met its burden of production at trial. State v. Walker (Dec. 12, 2001), 9th Dist. No. 20559; see, also, State v. Thompkins (1997), 78 Ohio St.3d 380, 390.

{¶8} Ohio courts have held that "[a]s 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. Pordash, 9th Dist. No. 04CA008480, 2004-Ohio-6081, at ¶12, quoting State v. Eskridge (1988), 38 Ohio St.3d 56, 59, citing State v. Martin (1946), 77 Ohio App. 553. This Court has further recognized that "[t]he relationship of the parties is a relevant fact when examining whether the element of force has been proven." Pordash at ¶12, citing Eskridge, 38 Ohio St.3d at 58.

{¶9} The State presented evidence at trial to demonstrate that while Eric Massey was engaging in sexual relations with a woman who had accompanied Kelley to Akron, Kelley entered Massey's house and raped Massey's girlfriend, D.M. More than twelve witnesses testified on behalf of the State in this matter. In addition, the State presented a significant amount of evidence in the form of exhibits. Kelley's wallet and identification were found at the crime scene. Also found at the crime scene was a condom containing the DNA of Kelley, D.M., and Massey.

{¶10} In addition to the physical evidence found at the house, the testimony of two witnesses was crucial to demonstrating that Kelley used force or the threat of force to engage in sexual relations with D.M. Massey, a cousin of the defendant and the boyfriend of the alleged victim, D.M., testified as follows. Massey lives at the house located at 1047 Frederick Blvd., in Akron, Ohio. Massey indicated that D.M. was staying with him temporarily while she was relocating to a different permanent residence. Massey had not seen Kelley, who lives in the Chicago area, since the funeral of Massey's mother in May 2008. Massey and D.M. returned to his residence on the night of August 7, 2008, after they had been out drinking. When he arrived home, Massey received a phone call from Kelley between 10:00 and 10:15 p.m. Kelley, who is employed as a truck driver, informed Massey that he was making a delivery in Akron and that he would be in town for the night. Kelley further indicated that he was on the east side of the city and that he was not familiar with his surroundings. Massey testified that he told D.M. that his cousin was lost and he was going to meet him.

{¶11} Massey met Kelley between 10:30 and 10:45 p.m. at the Popeye's Restaurant on East Arlington Street in Akron. Massey's cousin "Creesh," as well as one of her friends, was also with the Kelley. Massey approached the group and started talking with them. Massey had brought a beer with him and he testified that he drank the beer in the parking lot. When asked if he was intoxicated at the time, Massey answered, "I had a buzz on[.]" A woman named Crystal Washington had also accompanied Kelley to Akron. Massey and Washington had engaged in sexual relations on prior occasions. Massey testified that he was not aware that Washington had made the trip when he first arrived. Massey and Kelley eventually moved their trucks across the street to a dock where they could be parked. Massey testified that he got into Kelley's truck because he had never been inside and he wanted to check it out. Massey testified that he was surprised to find Washington in the truck and he learned that "they [had brought] her down to surprise me." While Massey was admiring Kelley's truck, Kelley asked Massey to borrow Massey's truck so he could go get something to eat. Massey indicated that he allowed Kelley to "use [his] truck to go down the street." Massey testified that his house keys were on the same key ring as his car keys. Massey proceeded to have sexual relations with Washington in the truck. Massey testified that he recalled being in the truck with Washington for 45 minutes to an hour but it could have been longer because, at one point, he fell asleep. Massey further testified that Washington woke him up and told him Kelley had called to inform Massey that Creesh would pick him up to take him home. On the way home, Creesh stopped at a McDonald's where Massey saw Kelley. When Massey asked Kelley why he did not return the truck, Kelley indicated that the truck was in his driveway because he did not have enough gas to return it. Kelley returned the keys to Massey. When Massey eventually arrived home, he found the police at his house. Massey testified that he thought Kelley was "going to go right down the street to a store, a restaurant, get something to eat, and come right back." When asked why he had such an impression, Massey testified, "Because that was discussed before I gave him the keys." Massey did not know that Kelley would go to his house. Massey further testified he and Kelley had not set up "a swap" and that he did not have an agreement with Kelley that he could have sex with D.M.

{¶12} D.M., the alleged victim in this case, testified as follows. D.M. was staying with Massey on August 7, 2008, because she had just sold her home and her new permanent residence was not going to be ready until August 9, 2008. D.M testified that she and Massey had "just really started dating in June" but they had known each since junior high school. On the night of August 7, 2008, D.M. and Massey returned to the house just as it got dark. D.M. testified that she heated up some greens that she had prepared for dinner on a previous night and she and Massey ate together. While they were eating, Massey received a phone call. D.M. testified as follows:

"[H]e said that it was his cousin, Creesh needed - ran out of gas. It didn't seem like he was talking to her. It was like, 'Well, where she at? Okay. Well, I'll be there in a second,' kind of thing.

"And then he said his cousin Creesh had ran out of gas, and he had to go and give her some gas."

D.M. testified that Massey then left the house shortly after 10:00 p.m. D.M. testified that she was under the impression he was going to help his cousin. After Massey left, D.M. finished her food, turned on a movie, and then fell asleep thereafter. D.M. testified that when she fell asleep, Massey was still gone. D.M. further testified that, while she was staying with Massey, she was sleeping on an electric air mattress in one of three second-floor bedrooms. D.M. testified that the two other bedrooms were not used because Massey's mother had passed away in one and the other had a lot of things in it.

{¶13} Later that night, D.M. awoke when the bedroom door opened. D.M. testified that she assumed it was Massey. D.M did not sit up when the door opened. D.M. testified, "I didn't want to be, like, anxious. I don't know. I was still kind of groggy." D.M.'s back was to the door. D.M. testified that she heard someone come in but she did not turn over. At that time,

D.M. did not speak to the individual that entered the room. D.M. heard the individual take his clothes off and then she heard some "paper rattling[.]" When asked what the paper sounded like,

D.M. testified that, "It sounded like a condom, maybe[.]" D.M. testified she thought it might be a condom because "at first I heard it and then I could just tell movement being made." D.M. clarified that she drew that conclusion based on "the way his body [was] shifting and he's getting into the bed at the same time, it's kind of like a fluid motion." D.M. further testified that the condom "kind of alarmed [her]" because Massey had not used a condom on the prior occasions when they had had sex. D.M. further testified that the last time she and Massey had had sex was that morning.

{¶14} D.M. did not turn over or sit up when the individual crawled into bed with her.

D.M. described the incident as follows:

"[W]hen he got in, he just got right close to my body. I had on underwear. And I was -- he just pulled my underwear down, and ...

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