CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2011 CR 01015
D. Vincent Faris, Clermont County Prosecuting Attorney, Judith A. Brant, for plaintiff-appellee
R. Daniel Hannon, Clermont County Public Defender, Robert F. Benintendi, for defendant-appellant
(¶ 1} Defendant-appellant, Richard Dehner, appeals his convictions and sentence in the Clermont County Court of Common Pleas for multiple counts of rape and gross sexual imposition.
(¶ 2} When K.S. was five years old, she and her father, Mark, moved into her paternal grandmother's home because Mark was unable to financially support K.S. and himself. Mark had custody of K.S. and K.S.'s mother did not have a relationship with her daughter or Mark. K.S.'s grandmother married Dehner, and Dehner became K.S.'s step-grandfather.
(¶ 3} When K.S. was approximately seven years old, she, Mark, K.S.'s grandmother, and Dehner moved into a house together. From the time that Dehner came to live with the family, he became the disciplinarian for K.S., often times leading to altercations with Mark over who should be disciplining K.S. When K.S. would want to visit friends or spend time away from the home, she would have to seek permission from Dehner. Dehner would also help provide K.S. with what she wanted or needed, such as paying fees for extracurricular activities or providing spending money.
(¶ 4} Dehner began inappropriately touching K.S. when she was approximately eight years old. At first, Dehner would touch K.S.'s buttock when she would give him a hug before bedtime. Dehner also played movies with sexual scenes when K.S. was in the room. K.S. stated that Dehner asked her to watch a pornographic video with her, but that the VCR destroyed the tape before they watched the movie together. When K.S. entered junior high, at approximately 10 or 11 years old, the touching and inappropriate behavior escalated.
(¶ 5} On Wednesday nights, K.S.'s grandmother and Mark would go to bingo, leaving Dehner and K.S. alone in the house together. During this time, Dehner would come to where K.S. was sitting on the couch watching television, and begin to rub her legs and back. Dehner would then move his hand beneath K.S.'s shorts and rub her buttocks. Dehner would also touch K.S. on her breasts. This type of touching occurred for approximately two years on a weekly basis.
(¶ 6} When K.S. entered high school, the touching escalated. On one occasion, K.S. was home from school and Dehner came home early from work. K.S. was watching television, and Dehner sat next to her on the floor. He began rubbing her arms, and moved closer to her. He then left, and came back with a jar of Vaseline. Dehner removed K.S.'s pants and "pried" her legs open. Dehner then inserted his middle finger into the Vaseline and then inserted it into K.S.'s vagina. K.S. tried to push Dehner away, but Dehner was six feet tall and weighed 250 pounds compared to K.S. who was 5'2" and weighed 115 pounds. Dehner continued to digitally penetrate K.S. on a monthly basis, and also performed cunnilingus on her. Dehner told K.S. that he was preparing her for future boyfriends and that she had too much estrogen that needed to be released from her body through orgasm.
(¶ 7} During K.S.'s sophomore year, the touching and abuse escalated further. One afternoon after school, Dehner forced K.S. onto the floor and tried to have intercourse with her, but he was unable to maintain an erection so that only the tip of his penis came in contact with K.S.'s vagina. Dehner would then try to initiate intercourse with K.S. at least twice a week. Also during this time, Dehner forced K.S. to perform oral sex on him, and he also inserted his fingers into K.S.'s anus.
(¶ 8} During K.S.'s junior year, the touching and abuse continued. Dehner began keeping a "tab" of monies he spent on K.S. for things that she needed or wanted, and Dehner would make her "repay" the tab through sexual acts. Dehner forced K.S. to perform oral sex acts on him, and also performed "exams" on K.S. when she would complain of physical ailments such as menstrual cramping. On one occasion, Dehner performed an "exam" to determine whether K.S. had a yeast infection. On another occasion when K.S. complained of cramping, Dehner forced her onto the bathroom sink, pried her legs open and used his fingers to determine if "anything looked out of place or wrong in his eyes."
(¶ 9} Also during K.S.'s junior year, she befriended a classmate. K.S. began spending time with the classmate and formed a bond with the classmate's mother. K.S. shared with the classmate's mother that Dehner was molesting her, and the classmate's mother shared that she too had been molested as a child. The classmate became jealous of the bond shared between her mother and K.S., and wrote K.S. a note stating that she should get over the abuse and face reality. K.S., who read the note before English class, broke down in tears. K.S.'s English teacher came over to K.S. and spoke to her in the hallway. K.S. then recalled the years of molestation and stated that she was ready to report the sexual abuse. K.S.'s English teacher and other school administrators helped K.S. report the sexual abuse, and K.S. gave a statement to a child services agency, as well as the police, and K.S.'s father was informed.
(¶ 10} K.S. left Dehner's home and made up a story that she was staying with a friend. During that time, K.S. continued to tell police and child services workers about the history of abuse. At one point, Detective John Pavia had K.S. make a "controlled call" whereby K.S. called Dehner and told him that she had recorded all of the sexual abuse in a journal. During the call, K.S. brought up specific instances of sexual abuse and then told Dehner that she had written about those instances in the journal. Instead of denying the abuse, Dehner told K.S. that she was wrong for having written about their relations and that those instances were supposed to have been kept between them privately.
(¶ 11} Dehner was arrested and charged with one count of gross sexual imposition and seven counts of rape. Dehner pled not guilty to the charges, and the matter proceeded to a jury trial that had two days of voire dire and five days of testimony. The jury found Dehner guilty of gross sexual imposition and six of the seven counts of rape, and the trial court sentenced him to 45 years in prison and a $20, 000 fine. Dehner was also designated a Tier III sexual offender. Dehner now appeals his convictions and sentence, raising four assignments of error. For ease of discussion we will address Dehner's second and third assignments of error together, as they are interrelated.
(¶ 12} Assignment of Error No. 1:
(¶ 13} THE TRIAL COURT ERRED IN ENTERING A FINDING OF GUILTY ON THE JURY'S VERDICT BECAUSE SUCH VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
(¶ 14} Dehner argues in his first assignment of error that his convictions were not supported by the manifest weight of the evidence.
(¶ 15} A manifest weight challenge examines the inclination of the greater amount of credible evidence, offered at a trial, to support one side of the issue rather than the other. State v. Wilson, 12th Dist. Warren No. CA2006-01-007, 2007-Ohio-2298.
In determining whether a conviction is against the manifest weight of the evidence, the court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses and determines whether in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.
State v. Cummings, 12th Dist. Butler No. CA2006-09-224, 2007-Ohio-4970, ¶ 12.
(¶ 16} While appellate review includes the responsibility to consider the credibility of witnesses and weight given to the evidence, "these issues are primarily matters for the trier of fact to decide since the trier of fact is in the best position to judge the credibility of the witnesses and the weight to be given the evidence." State v. Walker, 12th Dist. Butler No. CA2006-04-085, 2007-Ohio-911, ¶ 26. Therefore, an appellate court will overturn a conviction due to the manifest weight of the evidence only in extraordinary circumstances to correct a manifest miscarriage of justice, and only when the evidence presented at trial weighs heavily in favor of acquittal. State v. Thompkins, 78 Ohio St.3d 380, 386, (1997).
(¶ 17} Dehner was convicted of one count of gross sexual imposition in violation of R.C. 2907.05(A)(4), which states,
no person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more other persons to have sexual contact when any of the following applies:
the other person, or one of the other persons, is less than thirteen years of age, whether or not the offender knows the age of that person.
(¶ 18} The state provided evidence that when K.S. was approximately ten or 11 years old, Dehner had sexual contact with her. K.S. testified that on Wednesday nights, K.S.'s grandmother and Mark would go to bingo, leaving her and Dehner alone in the house together. During this time, Dehner would rub K.S.'s legs and back. Dehner would then move his hand beneath K.S.'s shorts and rub her buttocks, and would also touch K.S. on her breasts. This sexual contact happened on a weekly basis when K.S. was less than 13 years old.
(¶ 19} Dehner was also convicted of six counts of rape in violation of R.C. 2907.02(A)(2), which states, "no person shall engage in sexual conduct with another when the offender purposely compels the other person to submit by force or threat of force." The "force" requirement "need not be overt and physically brutal, but can be subtle and psychological." State v. Rankin, 12th Dist. Clinton No. CA2004-06-015, 2005-Ohio-6165, ¶ 47. "The force and violence necessary in rape is naturally a relative term, depending upon the age, size and strength of the parties and their relation to each other." State v. Eskridge, 38 Ohio St.3d 56, 58 (1988). A child's will can be overcome by fear and duress when an important figure of authority tells the child to do something, and commands the child not to tell anyone about it. Id. So "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." Id. at 59.
(¶ 20} The state presented evidence that Dehner compelled K.S. by force or threat of force to engage in sexual conduct with him. K.S. testified that Dehner was an authority figure to her ever since he moved into the home she shared with her father and grandmother. Dehner was the one who gave permission for K.S. to socialize, and K.S. testified that Dehner was very controlling over her life. K.S. testified that she did not tell anyone of the sexual conduct because she was afraid that Dehner would force her and her father from the home and that they would be homeless. K.S. also testified that she was forced to have the sexual conduct, such as digital penetration, cunnilingus, and fellatio, with Dehner because he would get very angry with her when she would fight him, and that he threatened to take away her phone, car, or spending money. More than the ...