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State v. Weber

Court of Appeals of Ohio, Second District

July 19, 2013

STATE OF OHIO Plaintiff-Appellee
ROBERT WEBER Defendant-Appellant

Criminal appeal from Common Pleas Court T.C. NO. 11CR3379

R. LYNN NOTHSTINE, Atty. Reg. No. 0061560, Assistant Prosecuting Attorney, Attorney for Plaintiff-Appellee

WILLIAM GALLAGHER, Atty. Reg. No. 0064683, Attorney for Defendant-Appellant



{¶ 1} This matter is before the Court on the Notice of Appeal of Robert Weber, filed November 30, 2012. Weber appeals from his October 31, 2012 Judgment Entry of Conviction on one count of rape (less than 13 years of age), in violation of R.C. 2907.02(A)(1)(b); one count of rape (less than 10 years of age), in violation of R.C. 2907.02(A)(1)(b); and one count of rape (less than 10 years of age), in violation of R.C. 2907.02(A)(1)(b), all felonies of the first degree.

{¶ 2} Weber was initially indicted, on January 30, 2012, on three counts of rape (less than 13 years of age), and one count of gross sexual imposition; he was subsequently indicted, on June 14, 2012, on two additional counts of rape (less than 10 years of age). The matter was tried to a jury, and at the conclusion of the State's evidence, following Weber's motion for an acquittal, the trial court dismissed two rape charges and the gross sexual imposition charge from the initial indictment. Following guilty verdicts on the remaining counts, the trial court sentenced Weber to 10 years to life on the rape charge in the initial indictment; to life imprisonment with the possibility of parole in 10 years on count one in the second indictment; and to 15 years to life on count two of the second indictment, all to be served consecutively, for an aggregate term of 25 years to life. The court also designated Weber a Tier III sex offender.

{¶ 3} The victim herein is Weber's step-daughter, A.H. At trial, A.H. testified that her date of birth is June 10, 1999, and that she is 13 years old. She testified that when she was seven years old and living in Westlake, Ohio, with her mother and Weber, she and Weber got into a "tickle fight, " and "while he was tickling me, he went down to my private area and then moved his hand back up. And I put his hand back because it - - it tickled. And he said I shouldn't do that. And when I asked why he said that he'd tell me another day if I really wanted to know." A.H. stated that her "private area" was her genital region. A .H. stated, "a few days after that, " Weber "brought it up again, " and they discussed "what sex was and what types of sex there were and the dangers there were and the diseases you could get from it." A.H. stated that Weber told her to "keep it a secret and not to tell anybody." She stated that when Weber first spoke to her about sex, he did not touch her. She stated that it was "a continuing discussion."

{¶ 4} According to A.H., when she "was 8, around there, * * * he asked me if I wanted to learn more. * * * And when I said yes, he said that I would have to not tell anybody. So I agreed not to tell anybody again. And after that he started touching me." A.H. stated that one day she "took off my clothes and he showed me the parts that I had, " by means of a mirror, and "he showed me the parts that - - that he had." According to A.H., one "of the times he brought up whether I wanted to touch him or not or, you know, whether I wanted to learn more or try something new." A.H. stated she touched Weber's penis with her hand "after I was 8, " but before she was 10. She stated that she moved her hand back and forth.

{¶ 5} A.H. further testified that she "was around 9 when [Weber] asked me again if I wanted to learn something new. And he said that it had to be confidential again and that I couldn't tell anybody. And I agreed to that. And that's when he started the oral sex part of the stuff that he did." A.H. stated Weber "was touching me in the beginning, but later, I was touching him." A.H. stated that Weber would "lick" her clitoris. She stated that she later "had to suck on his penis." According to A.H., Weber would ejaculate onto his stomach, but "he had me start swallowing it after I was 9. I'd at least turned 10."

{¶ 6} According to A.H., "when I turned 11 he - -he again asked me if I wanted to learn anything else and that it would be confidential and I said yes. And he started having vaginal sex with me." When asked if Weber used a condom, A.H. stated that he "tried to use one the first time, but I said that it hurt so * * * he didn't use one all of the other times that we had vaginal sex * * *." A.H. stated that Weber "would have me get off of him before he ejaculated and then he'd ejaculate onto his stomach or shirt."

{¶ 7} A.H. stated that she had vaginal sex with Weber on the evening of July 13, 2011, on the couch in their game room, while her mother was at the "fitness center." She stated that she lived in Montgomery County at the time. A.H. stated that she disclosed the abuse to her mother on July 14, 2011, after her mother found A.H. and Weber sleeping on the couch in the game room that morning. A.H. stated that she initially "told her that nothing was happening. And * * * she asked me again and I told her all about what had been happening since I was 7. But I wrote it down because I couldn't tell her because it just - - I didn't know how to so I wrote it." A.H. stated that her mother called the police and that she was taken to the hospital.

{¶ 8} When asked, "was there anything that led up to the vaginal sex" on July 13, 2011, A.H. replied, "I don't remember, " and when asked, do "you remember anything about the days prior whether you had vaginal sex or not, " she again replied, "I don't remember."

{¶ 9} The following exchange occurred:

Q. * * * When you were younger, you were talking about the Defendant touching your body in different places. Did he ever touch your chest area?
A. Yes. But that didn't happen until I was around 10.
Q. * * * and what changed with your body at that point?
A. I started to grow there. So he - - he could touch - -
Q. Would he ever leave any marks when he would touch that area?
A. Yes. One point he - - he did leave marks and my mom saw then. And I - - I said that it was nothing. I told her that I'd run into a wall.
Q. * * * When you were doing these things with the Defendant, did you ever enjoy it?
A. After a while, yes.
Q. When you finally told someone about this, did you feel you had betrayed him?
A. Yes. Because I told him that I would keep it as a promise and that I wouldn't tell anybody. And even though he's done these things to me, I still felt that I'd betrayed him by telling somebody.

{¶ 10} Mary Elizabeth Lacher testified that she is employed at Dayton Children's Emergency Room, and the State tendered her as an expert in pediatric emergency room medicine. She stated that she examined A.H. on July 14, 2011, and that as a result she found that A.H.'s "hymen is not intact inferiorly, " and that there was no active bleeding. Lacher stated that the hymen is "a round thin membrane, that is normally, in a non-sexually active person, is intact." Lacher stated that the condition of A.H.'s hymen is consistent with sexual activity.

{¶ 11} A.H.'s mother, M.S., testified that she and Weber were married on September 17, 2007, and that she lived with him for two years prior to their marriage. She stated that after briefly residing in Georgia, they moved to Kettering, Ohio, "the summer that [A.H.] turned six." From Kettering, M.S. stated that her family moved to Westlake, a suburb of Cleveland in Cuyahoga County, where they lived from sometime in 2006 to June, 2008, at which time they moved to Franklin County, where they resided until June, 2009. M.S. testified that from Franklin County, they moved to Miami Township, in Montgomery County, where they resided until July 14, 2011.

{¶ 12} Brenda Miceli testified that she is a licensed psychologist in private practice, and that she has been qualified as an expert in child psychology and child sexual abuse. When the state requested that Miceli "be declared an expert in the dynamics of child sexual abuse, " defense counsel did not object, nor did he object at all in the course of her direct testimony, which was addressed to behaviors that children who have disclosed sexual abuse may or may not exhibit. She discussed "internalizing, " "externalizing" and "sexualized behaviors." Miceli also described the "grooming process" that typically occurs, and that allows an abuser to determine if a child is likely to reveal the abuse. On cross-examination, Miceli stated, "I think I need to be clear here that my job is never to determine whether or not a child is telling the truth." She stated that her role at trial was not to opine on A.H.'s credibility. On redirect examination, Miceli stated that she was not asked to determine whether A.H. was telling the truth about the abuse. When asked why she did not speak to A.H. about the allegations, Miceli replied, "Because my role is not her therapist or to determine whether or not abuse has occurred."

{¶ 13} After Miceli testified, in the absence of the jury, the State moved the court to amend count one of the second indictment as follows: "Instead of the county of Montgomery, * * * it would read in the county of Cuyahoga, as part of continuing course of conduct that ultimately ended in Montgomery County." The State also moved the court to amend count two of the second indictment "to say instead of the county of Montgomery, the county of Franklin, and then the similar language of as part of a continuing course of conduct that * * * resulted in conduct in Montgomery." The State directed the court's attention to State v. Hensley, 2d Dist. Montgomery No. 11410, 1990 WL 31840 (March 19, 1990), reversed, in part, on other grounds, 59 Ohio St.3d 136, 571 N.E.2d 711 (1991) (holding that Hensley was not entitled to a separate trial on one count of an indictment alleging rape of a child in Clark County, unlike the other 14 counts in the indictment which allegedly took place in Montgomery County, and noting that it "is well established that a series of sex offenses against children under thirteen years old does constitute a 'course of criminal conduct' for purposes of R.C. 2901.12(H))"; and State v. Williams, 53 Ohio App.3d 1, 557 N.E.2d 818 (10th Dist. 1988) (citing R.C. 2941.08(F), which sets forth ...

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