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State of Ohio v. Jimmy Neu

February 8, 2013

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
JIMMY NEU, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: Kline, J.:

Cite as State v. Neu,

DECISION AND JUDGMENT ENTRY

{¶1} Jimmy Neu (hereinafter "Neu") appeals the judgment of the Adams County Court of Common Pleas, which convicted him of two counts of sexual battery. Neu's appellate counsel has advised this court that, after reviewing the record, he cannot find a meritorious claim for appeal. As a result, Neu's appellate counsel has moved to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). After independently reviewing the record, we agree that Neu's appeal is wholly frivolous. Accordingly, we (1) grant counsel's request to withdraw and (2) affirm the judgment of the trial court.

I.

{¶2} Neu was indicted for two counts of rape in violation of R.C.

2907.02(A)(1)(b). Specifically, Neu was accused of (1) "penetrating [his five-year-old daughter] with his penis" and (2) "having [his five-year-old daughter] perform oral sex on him." September 3, 2009 Bill of Particulars. Both counts included specifications for life sentences.

{¶3} Neu agreed to take a polygraph examination, and the trial court approved a polygraph stipulation between Neu and the state. The stipulation provides that, "[i]f Defendant denies * * * that he engaged in sexual conduct with the alleged victim and he is being truthful, charges will be dismissed by the State of Ohio." The stipulation also contains provisions related to the polygraph administrator, the procedures for the examination, and the admissibility of the polygraph evidence. Finally, the stipulation provides that "[a]dmissions or other culpatory statements made by the defendant before, during and after 'testing' shall be admissible and may be testified to during the trial of this case."

{¶4} During the polygraph examination, Neu responded to the following questions:

Question: Did you ever insert your penis inside [your daughter's] vagina?

Answer: No.

Question: Did you ever put your penis inside [your daughter's] mouth?

Answer: No.

Question: Did you ever intentionally commit a sex act with [your daughter]?

Answer: No.

According to the polygraph administrator, "Numerical analysis of the polygraph tests resulted in a conclusion of: 'Deception Indicated' when Jimmy Neu was answering the above listed questions." (Emphasis sic.) Polygraph Examination Report. As a result, the polygraph administrator believed "that Jimmy Neu was not being completely truthful during testing." Id.

{¶5} During the post-test phase of the examination, the polygraph administrator informed Neu of the results of the test. This prompted Neu to say that "the only thing he has done sexually with [his daughter] was rub her vagina with his finger." Id.

{¶6} Shortly after the polygraph examination, Neu requested that his trial counsel withdraw from the case. As a result, the trial court appointed different counsel for Neu.

{¶7} Neu's second trial counsel filed several evidentiary motions, including a motion to suppress the results of the polygraph examination.

{¶8} After plea negotiations, Neu withdrew his evidentiary motions and pled guilty to two counts of sexual battery. The trial court then sentenced Neu to a total combined term of 11 years in prison.

II.

{ΒΆ9} Although Neu has appealed his conviction, Neu's appellate counsel has filed both a motion to ...


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