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State v. Dicks

Court of Appeals of Ohio, Fifth District

June 20, 2013

STATE OF OHIO Plaintiff-Appellee
v.
DAVID T. DICKS Defendant-Appellant

Criminal Appeal from the Court of Common Pleas, Case No. CR2011-0112

For Plaintiff-Appellee RONALD L. WELCH ASSISTANT PROSECUTOR.

For Defendant-Appellant FREDERICK A. SEALOVER.

JUDGES: Hon. W. Scott Gwin, P. J. Hon. Sheila G. Farmer, J. Hon. John W. Wise, J.

OPINION

Wise, J.

{¶1} Defendant-Appellant David T. Dicks appeals his conviction on two counts of gross sexual imposition entered by the Muskingum County Court of Common Pleas following a jury trial.

{¶2} Plaintiff-Appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶3} On May 11, 2011, Appellant was indicted on 20 counts of gross sexual imposition, violations of R.C. §2907.05(A)(4), all involving the same victim.

{¶4} Each of the 20 Counts alleged that between the dates of March 24, 2003, and March 24, 2004, and, "in the County of Muskingum, Ohio, David T. Dicks did have sexual contact with another, to-wit, T.K. dob 02/12/1995, not the spouse of the said David T. Dicks, the said T.K. dob 02/12/1995, being less than thirteen (13) years of age, whether or not the said David T. Dicks knew the age of the said T.K. dob 2/12/1995 ..., " in violation of R.C. §2907.05(A)(4).

{¶5} On September 27, 2011, the case proceeded to trial by jury.

{¶6} At trial, the victim, T.K., testified that she lived with Appellant and his wife, Yvette, who is T.K.'s maternal aunt, for one year, from approximately March 24, 2003, to March 24, 2004, while both of her parents were incarcerated. T.K. said that, "[Appellant] would have me massage his back and everything." (2011 T. at 156). She claimed that he would have her rub, "down his stomach and his privates." Id. at 157. T.K. admitted that Appellant did not touch her and she said that he did not have her do, "anything other than massage him." Id. at 158. T.K. recounted that Appellant repeated this conduct, "twenty times or so." Id. at 166.

{¶7} At the close of the State's case, defense counsel made a motion for acquittal, noting that the State's evidence tended to show that Appellant had not had sexual contact with T.K., as charged, but rather, that he had caused T.K. to have sexual contact with himself.

{¶8} The State responded by making a motion to amend the indictment, "to include the full language of R.C. §2907.05, Gross Sexual Imposition, which includes the language of "cause another, not the spouse of the offense, to have sexual contact with the offender." Id. at 213. The State argued that the defense had been provided with discovery containing a copy of T.K.'s statement describing her allegations and that Appellant had therefore not been prejudiced in any way. Defense counsel conceded this point (2011 T. at 216).

{¶9} The State further offered that the indictment did not contain the entire text of the Gross Sexual Imposition statute due to a "scrivener's error". Id. at 213. Pursuant to Crim. R. 7(D), the trial court granted the State's motion to amend the indictment to include additional language which comported to the evidence adduced at trial, and denied Appellant's motion for acquittal,

{¶10} Appellant also made a motion to dismiss the jury.

{¶11} By Judgment Entry filed October 4, 2011, that request was granted and the jury was ordered dismissed without prejudice with a new trial to be scheduled.

{¶12} Appellant appealed the trial court's decision to this Court, which dismissed said appeal, finding that no final appealable order existed under R.C. §2505.02 because Appellant was awaiting a new trial and had yet to be found guilty and/or sentenced.

{¶13} On July 3, 2012, Appellant filed a Motion for Reconsideration of Motion for Acquittal and a Motion in Limine and/or to Suppress seeking an order, "prohibiting the introduction into evidence at Trial, by the State of Ohio, of testimony by Roni Kuhn, Susan Deckard, Trevor Deckard, Kelly McKee, Blake Newsom, and any other witnesses which contains inadmissible hearsay evidence, as well as the testimony of Scott A. Yockey which would be unfairly prejudicial and would violate the Defendant's Constitutionally guaranteed presumption of innocence."

{¶14} Scott Yockey is a convicted sex offender and a prisoner at the Noble Correctional Institution, who was housed with Appellant at the Muskingum County Jail in 2011, while Appellant was held in lieu of bail in this matter. Yockey came forward after Appellant's mistrial stating that Appellant had confessed to him that he perpetrated the offenses with which he was charged.

{¶15} By Journal Entry dated July 5, 2012, the trial court ordered the State to respond to Mr. Dicks' motions within 10 days. The State failed to make timely responses, but did file responses on July 27, 2012.

{¶16} On September 27, 2011, a second jury trial commenced in this matter. Prior to the State's opening statement, the trial court ...


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