Trial Court No. CR0201102680.
Julia R. Bates, Lucas County Prosecuting Attorney, and Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.
Nicole I. Khoury, for appellant.
DECISION AND JUDGMENT
(¶1} Billie Noles appeals from a judgment of conviction and sentence following a jury verdict finding him guilty on four counts of rape in violation of R.C. 2907.02(A)(1) (b) and (B). For the following reasons, we affirm the judgment of the Lucas County Court of Common Pleas.
(¶2} When G.B. was in the third grade she watched a sexual abuse video at school. After the video, G.B. approached her school counselor and reported that she had been sexually abused when she was a small child. The school counselor notified the proper authorities. The Toledo Police Department assigned the case to Detective Shelli Kilburn. Detective Kilburn interviewed G.B., G.B's mother, and G.B.'s grandmother. She also interviewed appellant, Billie Noles.
(¶3} In September 2011, the Lucas County Grand Jury indicted appellant on four counts of rape in violation of R.C. 2907.02(A)(1)(b) and (B). When the matter was called for arraignment, appellant was referred to Court Diagnostic & Treatment Center for competency and criminal responsibility evaluations pursuant to R.C. 2945.374(G)(3) and 2945.374(G)(4), respectively.
(¶4} On November 8, 2011, appellant filed a written plea of not guilty by reason of insanity to each count of the indictment.
(¶5} On November 22, 2011, a clinical psychologist from Court Diagnostic & Treatment Center, Charlene A. Cassel, Ph.D., authored a report setting forth the results of appellant's Kaufman Brief Intelligence Test-Second Edition. According to the doctor, appellant "obtained a Full Scale IQ composite of 50. His verbal knowledge was 60 and his nonverbal was 54." The doctor indicated that appellant's scores would "classify him in the Moderate Mental Retardation range." Dr. Cassel opined, to a reasonable degree of medical certainty, that "with modifications, Mr. Noles is able to understand the nature and objective of the proceedings against him and assist in his defense."
(¶6} The matter was recalled for arraignment on November 30, 2011. Appellant moved and was granted a second opinion relating to competency and criminal responsibility. Again, appellant was referred to Court Diagnostic & Treatment Center for evaluation.
(¶7} On February 1, 2012, the trial court received and admitted into evidence a report authored by Thomas G. Sherman, M.D. The trial court found appellant competent to stand trial.
(¶8} Appellant's trial counsel filed a motion to suppress arguing that the statements made by appellant to Detective Kilburn were obtained in violation of the rights guaranteed by the Fourth, Fifth, and Fourteenth Amendments to United States Constitution, and Article I, Sections 10 and 16 of the Ohio Constitution. Trial counsel argued that the statements were made while appellant was in custody of the Toledo Police Department without having been advised of his Miranda rights.
(¶9} A hearing was held on the motion to suppress. Detective Kilburn testified on behalf of the state. According to Kilburn, at the time appellant was identified as a suspect, he was staying at the Knights Inn in Rossford, Ohio. Detective Kilburn called appellant and invited him to the station for an interview. Noles informed the detective he had no means of transportation. Detective Kilburne offered to have a patrol car and its uniformed crew transport him to and from the station for the interview. Appellant accepted the detective's offer.
(¶10} A video recording of the 48 minute interview was admitted into evidence. The video indicates that upon arrival in the interview room, Detective Kilburne informed appellant he was there on his "own free will." She further stated, "[i]f you don't want to talk to me, you don't have to. It's in your best interest for you to talk to me here today, but at any time that if you want to get up and leave you have that right to do so. * * * If you don't want to be here you don't have to be here." Appellant indicated he understood and that he had nothing to hide.
(¶11} The detective informed appellant that he was a suspect in an investigation because the then nine-year-old victim had accused appellant of having sexual contact with her when she was four or five years old. Initially, appellant denied any sexual contact with the girl. Nineteen minutes into the interview, Detective Kilburn suggested that G.B. might have "come on" to appellant; that G.B. might have initiated the sexual contact. The detective indicated that she was not suggesting that appellant forced G.B. to do anything. Rather, Detective Kilburn reminded appellant that G.B. claimed it happened and that he needed to "think about how this happened, because we know it wasn't forced." Twenty-three minutes into the interview, appellant admitted being alone in the bathroom with G.B. He also admitted that he remembered his pants being down. The detective again suggested G.B. initiated the contact. Twenty-four minutes into the interview appellant stated, "I was on no medications at the time * * * my mind races, so I don't know if I did it to her or she did it to me. I believe now that it has come to my attention that it happened, I was on no medications at the time * * * I never really forced her that I know of on me like that." When asked if he remembered G.B. putting her mouth on his penis, appellant replied "I believe so." He claimed it happened once, that it lasted less than a minute, and that he did not ejaculate.
(¶12} Twenty-six minutes into the interview, appellant asked if he needed to get a lawyer. He indicated that he dropped out of school in the eleventh grade and that his reading level was at the third or fourth grade level. Without answering appellant's question, Detective Kilburn noted there is a difference between a forced sexual act and a sexual act that is not forced.
(¶13} Twenty-nine minutes into the interview appellant claimed that G.B. approached him and put her mouth on his penis "maybe once." He denied the allegation that it happened every time she was at his house. Appellant also denied the allegation that he gave G.B. ice cream after the alleged sexual acts occurred. Appellant insisted he would not give a child ice cream as a "reward for something like that."
(¶14} Thirty-five minutes into the interview appellant was asked if there was anything else about that day that would help the detective with her investigation, appellant replied "I noticed that she would hump her baby dolls a lot." Near the end of the interview, Detective Kilburn allowed appellant to ask her questions. Appellant asked several questions such as, "What happens next?" And, "If they interview me again, will they come and get me?" Appellant asked, "What happens if it comes back that it was my fault?" Appellant also asked whether he would have to register as a sex offender or serve a jail sentence.
(¶15} After the interview, appellant was driven back to the Knights Inn in the patrol car by the uniformed officers.
(¶16} At the conclusion of the hearing on the motion to suppress, trial counsel referred to a report authored by Dr. Cassel. He argued that a suspect with an IQ of 50 would not have known that he was not in custody at the time he made his statements to the detective and asked that the Court Diagnostic & Treatment Center's report be used as evidence to support his argument. Trial counsel argued:
Your Honor, the report is part of the record, and I think the Court can take judicial notice of a person - placing a person in Mr. Nole's [sic] place with an IQ of 50 whether they - how they would perceive the situation. If not I would ask to continue the hearing where I could bring Dr. Cassel in.
The state objected both to trial counsel's request to take judicial notice and to the proposition that Dr. Cassel could testify to Noles' perception at the time of the interview. The trial court denied the request to take judicial notice, but allowed appellant a continuance so that trial counsel could research whether Dr. Cassel could render an opinion as to the issue identified. At no time thereafter, did trial counsel request to put Dr. Cassel on the stand in support of his motion to suppress.
(¶17} On September 24, 2012, the trial court orally denied appellant's motion to suppress and a jury trial commenced. At trial, G.B. testified that when she was four years old and still living with her mother, she and her brothers would be dropped off at Billy and Sue's house almost every week. At first, she and her brothers would play games and watch movies. At some point, however, Billy began taking her into the bathroom while her brothers played in the front room. Once in the bathroom, Billy would pull his pants to his knees and put her mouth on his ...