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State v. Roush

Court of Appeals of Ohio, Tenth District

July 18, 2013

State of Ohio, Plaintiff-Appellee,
Robert B. Roush, Defendant-Appellant.

APPEAL from the Franklin County Court of Common Pleas C.P.C. No. 10CR-08-4518

Ron O'Brien, Prosecuting Attorney, and Steven L. Taylor, for appellee.

Yeura R. Venters, Public Defender, and Timothy E. Pierce, for appellant.



{¶ 1} Defendant-appellant, Robert B. Roush ("defendant"), appeals from a judgment of the Franklin County Court of Common Pleas finding him guilty, pursuant to a jury verdict, of four counts of gross sexual imposition in violation of R.C. 2907.05, one count of disseminating matter harmful to a juvenile in violation of R.C. 2907.31, and five counts of rape in violation of R.C. 2907.02. Because (1) the manifest weight of the evidence supports defendant's convictions, (2) defendant was not deprived of the effective assistance of counsel, (3) a statement from an expert allegedly bolstering the veracity of a child declarant amounted to harmless error, (4) defendant's convictions for gross sexual imposition and rape were not allied offenses of similar import subject to merger, and (5) the trial court failed to make the findings required by R.C. 2929.14(C)(4) before imposing consecutive sentences, we affirm in part and reverse in part, remanding the case for resentencing.

{¶ 2} On August 2, 2010, plaintiff-appellee, State of Ohio ("State"), indicted defendant on four counts of gross sexual imposition, felonies of the third degree, one count of disseminating matter harmful to a juvenile, a felony of the fourth degree, and five counts of rape, felonies of the first degree. The sole victim alleged in the charges was defendant's stepdaughter, K.R. The events giving rise to the indictment occurred between October 2007 and June 2010, when K.R. was between the ages of eight and eleven years old. The abuse came to light in July 2010 when K.R. was diagnosed with genital herpes.

{¶ 3} Defendant had his case tried to a jury. K.R., who was 13- years old at the time of trial, testified before the jury; defendant also testified on his own behalf After four days of trial, the jury found defendant guilty of each crime charged in the indictment. The court proceeded directly to sentencing, imposing a prison term of five years on each gross sexual imposition conviction, twelve months on the disseminating matter harmful to a juvenile conviction, and ten years to life on each rape conviction. The court ordered that defendant serve the gross sexual imposition and rape sentences consecutively to each other, for an aggregate prison term of 70 years to life. The court classified defendant as a Tier III sex offender.


{¶ 4} Defendant appeals, assigning the following errors:

[I.] Counsel for the defense provided ineffective assistance to the Appellant during the trial in violation of the Sixth and Fourteenth Amendments of the United States Constitution and Article I, Section 10 of the Ohio Constitution.
[II.] The Appellant suffered prejudice when Dr. Rodriguez was permitted over objection to offer an opinion which bolstered the veracity of [K.R.'s] statements and as a result the Appellant's right to a fair trial as memorialized in the Sixth and Fourteenth Amendments of the United States Constitution and Article I, Sections 10 and 16 of the Ohio Constitution was impugned.
[III.] The verdict was not supported by the manifest eight of the evidence.
[IV.] The trial court erred in not merging the four gross sexual imposition convictions with the rape convictions in violation of R.C. Section 2941.25(A).
[V.] The trial court erred in imposing consecutive sentences for the gross sexual imposition and rape convictions without making the necessary findings in violation of R.C. 2929.14(C)(4).

{¶ 5} For ease of discussion, we address defendant's third assignment of error first.


{¶ 6} Defendant's third assignment of error asserts that the manifest weight of the evidence presented at trial does not support his convictions.

{¶ 7} When presented with a manifest-weight argument, we engage in a limited weighing of evidence to determine whether sufficient competent, credible evidence permits reasonable minds to find guilt beyond a reasonable doubt. State v. Conley, 10th Dist. No. 93AP387 (Dec. 16, 1993). State v. Thompkins, 78 Ohio St.3d 380, 387 (1997) (noting that "[w]hen a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a 'thirteenth juror' and disagrees with the factfinder's resolution of the conflicting testimony"). In the manifest weight analysis the appellate court considers the credibility of the witnesses and determines whether the jury "clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." Id., quoting State v. Martin, 20 Ohio App.3d 172, 175 (1983). Determinations of credibility and weight of the testimony remain within the province of the trier of fact. State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus. The jury may take note of any inconsistencies and resolve them accordingly, "believ[ing] all, part or none of a witness's testimony." State v. Raver, 10th Dist. No. 02AP-604, 2003-Ohio-958, at ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67 (1964).

{¶ 8} Gross sexual imposition in violation of R.C. 2907.05 prohibits any person from having "sexual contact with another, not the spouse of the offender; [or] caus[ing] another, not the spouse of the offender, to have sexual contact with the offender" when the other person "is less than thirteen years of age." R.C. 2907.05(A)(4). "Sexual contact" means "any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing or gratifying either person." R.C. 2907.01(B). Disseminating matter harmful to a juvenile in violation of R.C. 2907.31(A)(2) provides that "[n]o person, with knowledge of its character or content, shall recklessly * * * exhibit, * * * or present to a juvenile * * * any material or performance that is obscene or harmful to juveniles." Rape in violation of R.C. 2907.02 provides that "[n]o person shall engage in sexual conduct with another who is not the spouse of the offender, " if the "other person is less than thirteen years of age." R.C. 2907.02(A)(1)(b). "Sexual conduct" includes vaginal intercourse, fellatio, cunnilingus, and "the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal * * * opening of another." R.C. 2907.01(A).

{¶ 9} The evidence presented at trial demonstrated that K.R.'s mother, M.R., married defendant in October 2007 when K.R. was eight-ears old. M.R., defendant, and K.R. moved into a house located off of Bixby Road in Columbus, Ohio in January 2008; in June 2008, M.R. gave birth to defendant's son and K.R.'s half-brother.

{¶ 10} K.R. explained that defendant began to sexually abuse her shortly after he married M.R. The abuse occurred predominately between 3:00 p.m., when K.R. would return from school, and 5:00 p.m., when her mother would return from work. K.R. explained that the abuse occurred "[a] whole lot of times, " but stated that it was hard for her to remember because she "tr[ies] to forget." (Tr. 95.)

{¶ 11} K.R. was able to testify to the various sexual acts which occurred between her and defendant. She stated that defendant used his fingers to touch both the "[i]nside and outside" of her vagina, explaining that this happened "[m]ore than one time." (Tr. 95, 97.) She stated that defendant used his hand to touch her breasts "under [her] clothes" and that it happened "[m]ore than one time." (Tr. 100, 101.) K.R. stated that defendant used "his tongue and his mouth" to touch her breasts and that it happened "[m]ore than one time." (Tr. 107.) K.R. testified that defendant made her "move [her] mouth up and down" while his penis was inside her mouth, explaining that this happened "more than one time." (Tr. 110.)

{¶ 12} K.R. told the jury that defendant had used his tongue to touch the inside of her vagina and that it happened "[m]ore than one time." (Tr. 103.) K.R. stated that defendant also put his penis "inside the hole of [her] vagina, " explaining that it felt uncomfortable. (Tr. 105.) She stated that he would put things on his penis before inserting it into her vagina, explaining that "one time he put this gel stuff on and another time he put a condom on." (Tr. 105.) Although K.R. did not know what a condom was when defendant used it, she eventually learned the name for that object. K.R. also stated that defendant put a vibrator inside her vagina, explaining that the thing was "silver and it was like * * * an oval shape, but skinny." (Tr. 108.) She stated that he put the vibrator inside her vagina "[m]ore than one time." (Tr. 108.)

{¶ 13} K.R. testified that defendant also showed her movies while they were alone in her mother's room. She explained that in these movies "[i]t was people touching other people" while their clothes were off, and that the people would be "putting their things inside of each other." (Tr. 112.) K.R. stated that she was eight or nine when defendant first showed her these movies, and stated that he showed her these movies "[m]ore than one time." (Tr. 113.)

{¶ 14} In early July 2010, when K.R. was eleven-and-one-half-years old, K.R. was preparing to leave Ohio to travel to Tennessee for her annual summer visit with her biological father. K.R. complained to M.R. "about her genital areas being itchy, " and M.R. assumed K.R. had a yeast infection. (Tr. 248.) When K.R. arrived in Tennessee, she went swimming, but was only able to stay in the water for a few minutes. She got out of the water and told her father that "her privates were burning." (Tr. 557.) K.R.'s grandmother arranged for K.R. to see Dr. Humberto Rodriguez on July 7, 2010.

{¶ 15} Dr. Rodriguez examined K.R.'s vagina, noting that there were small ulcers around K.R.'s vagina, which appeared "very similar to what we call a herpes lesion." (Tr. 179.) Dr. Rodriguez noted that it was possible for viruses other than the genital herpes virus to cause such lesions, and accordingly drew K.R.'s blood and took swabs of the lesions to determine the cause of the ulcers. Dr. Rodriguez asked K.R. if anyone had touched her inappropriately and K.R. "denied any molestation or anybody touching her in an inappropriate manner." (Tr. 179.) Dr. Rodriguez scheduled another appointment with K.R. in order to perform a thorough examination on K.R. while she was sedated.

{¶ 16} After the appointment with Dr. Rodriguez, K.R. called her mother and told her that defendant had been touching her inappropriately. K.R. explained that initially she only told her mom "[a] little bit" about the abuse because "it took a lot * * * to tell her a little bit." (Tr. 123.) K.R. called her mother back later that night and gave her more details about the abuse. K.R. described "specific names of DVDs, porn DVDs, " and M.R. went and found the specific pornographic DVD K.R. had described. (Tr. 283.) K.R. told M.R. that defendant used some jelly type stuff on her, and M.R. went into her bedroom and found the bottle of K-Y jelly, noting that too much was missing from the bottle to account for the one time M.R. and defendant had used the product.

{¶ 17} M.R. confronted defendant that evening and told him that K.R. said "that he was touching her." (Tr. 251.) Defendant "looked shocked and he said, 'Well, why is she saying my name?' " (Tr. 251.) Defendant told M.R. that K.R. needed "to stop saying [his] name, " and asked M.R. to convince K.R. to say that someone else had touched her. (Tr. 252-55.) M.R. traveled to Tennessee the next day and took K.R. to the local children's hospital to have a rape kit examination performed. M.R. spoke to defendant while she was in Tennessee, and defendant told M.R. that "it was important that [she] intervene" and talk to K.R. before K.R. had a chance "to talk to professionals." (Tr. 257.)

{¶ 18} On July 9, 2010, K.R. returned to see Dr. Rodriguez. K.R.'s father and grandmother informed Dr. Rodriguez that K.R. had confessed to them that defendant had touched her "in the wrong way, touch[ed] external genitalia, tr[ied] to kiss external genitalia, put[] his fingers inside and also, like she said, 'put his thing all of the way in and hurt [her] a lot.' " (Tr. 186-87.) K.R. also told Dr. Rodriguez about some of the abuse, admitting that it had been going on for quite a while, but explaining that she could not remember exactly how many times it had occurred. K.R. explained that she initially told Dr. Rodriguez that no one had molested her because she "was scared" and because it was not something that she wanted to talk about. (Tr. 121.)

{¶ 19} Dr. Rodriguez examined K.R., noting that the ulcers on her vagina were visible to the naked eye. He also noted that the "opening of the vagina was somewhat bigger than normal for an eleven-and-a-half-year-old." (Tr. 197.) Dr. Rodriguez observed that K.R.'s hymen was attenuated and that she had "very discrete abrasions" on the inside of her vagina, both of which were evidence that something had gone into K.R.'s vagina. (Tr. 200.) K.R. denied self-stimulation and had not yet started her period. Dr. Rodriguez explained that, upon finding the herpes-like lesions, the attenuated hymen, and the abrasions, it was apparent that K.R. had been molested, as "[t]here [was] no other way to explain all of those findings." (Tr. 201.)

{¶ 20} When M.R. returned to Ohio, defendant confessed to touching K.R. inappropriately. Defendant told M.R. that, when K.R. was nine, she told defendant that she had watched one of his pornographic movies, and that she had some questions about it. Defendant told M.R. that K.R. "started asking him questions regarding touching and private parts and that she started touching him." (Tr. 263.) Defendant stated that he initially told K.R. to stop, but then he admitted that he started touching her. M.R. reported the details of her conversation with defendant to police the following morning.

{¶ 21} M.R. explained that during the time after K.R.'s allegations but before defendant was arrested, defendant suggested several things they could do to make it appear as though K.R. had falsely accused defendant. Defendant suggested that they say that K.R. was having sex with defendant's nephew, "pay the babysitter to have her say that [K.R.] was running around with older boys, " and that defendant "go out and get a prostitute" in the hopes of catching a sexual transmitted disease "like chlamydia or something" other than herpes, to serve as evidence that defendant had not had sex with K.R. (Tr. 267-69.) Defendant told M.R. that he "was willing to go and get help * * * for his sickness" and that he would "sign over the deed of the house completely * * * if [she] would just make this all go away." (Tr. 269.)

{¶ 22} The swabs from the lesions on K.R.'s vagina revealed that the lesions were genital herpes. A medical technologist tested defendant's blood for antibodies which form after someone has been exposed to genital herpes. Defendant's blood tested positive for those antibodies, revealing that defendant has the genital herpes virus.

{¶ 23} When police searched the residence after defendant's arrest, they found K-Y jelly, a silver vibrator, pornographic DVDs, and a box of condoms in M.R. and defendant's room of the Bixby Road house. K.R. provided the detectives with a detailed description of some of the writing on the pornographic DVDs, and the DVDs they collected matched the description K.R. provided.

{¶ 24} Defendant's mother and sister both testified on behalf of the defense. Defendant's mother explained that K.R. become "very jealous" when defendant married M.R., because "all of a sudden her mother's attention was going towards" defendant. (Tr. 594.) Defendant's sister also testified that as defendant and M.R. became closer, K.R. became more jealous of the time they were spending together. Defendant testified that he did not commit the crimes charged and that he would never touch K.R. inappropriately. He also stated that he had never had a herpes outbreak, and that nothing had ever happened to cause him to think that he had herpes.

{¶ 25} Defendant's arguments in support of his manifest-weight challenge primarily assert that K.R. and M.R. were not credible witnesses. Defendant notes that while M.R. testified that defendant "admitted to her that he had been sexually abusing [K.R.] this was directly refuted by [defendant's] own testimony, " indicating that he did not commit the crimes charged. (Appellant's brief, 22.) Defendant contends that K.R.'s credibility can be challenged because she had a motive to lie about the abuse resulting from her jealousy towards defendant, her assertions regarding the abuse were vague, and because "in the face of questioning by Dr. Rodriguez, [K.R.] initially denied that anyone had been touching her inappropriately." (Appellant's brief, 22.) Dr. Rodriguez ...

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