Hamilton County Court of Common Pleas TRIAL NO. B-1103023.
Joseph T. Deters, Hamilton County Prosecuting Attorney, and James Michael Keeling, Assistant Prosecuting Attorney, for Plaintiff-Appellee.
Michele L. Berry, for Defendant-Appellant.
Hendon, Presiding Judge.
(¶1} Following a jury trial, defendant-appellant Nathaniel Webster was found guilty of four counts of unlawful sexual conduct with a minor for conduct occurring in September, October, November, and December of 2009. He was sentenced to twelve years' incarceration, fined $40, 000 and ordered to pay his victim $3400 in restitution. For the following reasons, we reverse Webster's conviction on the December 2009 charge, but affirm the trial court's judgment in all other respects.
(¶2} Webster, a former National Football League ("NFL") player, was indicted based on allegations that he had had a sexual relationship with Jordyn Jackson in 2009 when Jackson was just 15 years old and Webster was 31 years old. In pertinent part, the indictment alleged that Webster had had vaginal intercourse with Jackson once in September 2009, once in October 2009, once in November 2009, and once in December 2009, and that he knew that Jackson was 15 years old at the time or that he had been reckless in that regard. The state's bill of particulars stated that, during each of the months listed, Webster had engaged in vaginal intercourse with Jackson at Webster's home or in Webster's car while the car was parked in parking lots near Webster's home.
(¶3} Webster was also charged with gross sexual imposition and sexual battery. Prior to trial, Webster moved to sever his gross-sexual-imposition charge from the remaining counts on the basis that the "rape shield" law applied only to that count but to none of the others. Webster argued that, absent severance, he would be unable to introduce evidence pertinent to his defense. The trial court denied the motion and all the charges were tried together.
The State's Case at Trial
(¶4} In 2009, Jackson and Webster lived in the same neighborhood only a few houses away from each other. Jackson was a 15-year-old high school sophomore. She lived with her parents and siblings. Webster was married and had several children. According to Jackson, she began babysitting for Webster's family in 2009, and a sexual relationship soon ensued. Webster admitted to police that he had had a sexual relationship with Jackson. The main issue at trial was the timing of the alleged sexual activity, and whether it occurred when Jackson was only 15 years old. Webster's mens rea as to Jackson's age was also an issue.
The September 2009 Charge
(¶5} In regard to the charge that Webster and Jackson had engaged in sexual intercourse in September 2009, Jackson testified that during that month while she and a friend, Chloe Kelly, were getting ready to go to a high school football game, Webster texted Jackson on her cellular telephone asking to see her. Jackson told Webster that she was at Kelly's house. Webster picked her up there and drove Jackson to his house where, according to Jackson, they engaged in sexual intercourse in his bedroom while Webster's wife was out. Kelly corroborated details of Jackson's testimony regarding the texting and Jackson leaving her house unexpectedly. Kelly also testified that Jackson had told her in the fall of 2009 that Jackson had been having a sexual relationship with Webster.
(¶6} In further support of the September 2009 charge, the state introduced cellular telephone records showing that there were 256 telephone calls and text messages between Jackson's and Webster's telephones that month.
The October 2009 Charge
(¶7} Michelle Jackson, Jackson's mother, testified that she was having a difficult time contacting her daughter on October 30, 2009. Michelle remembered the date clearly because it was the day before her premature newborn baby was coming home from the hospital. Since Michelle could not find Jackson, she decided to drive around the neighborhood to look for her. Michelle discovered Jackson and Webster together in Webster's car as Webster was driving into the subdivision where they lived. At trial, Jackson testified that she had not had sexual intercourse with Webster on the evening that her mother had caught her, but that she had had sexual intercourse with Webster a number of times that month in Webster's house. Jackson also testified that Webster had told her that he loved her on October 28, 2009. Jackson had marked the date on her calendar. The calendar was admitted into evidence.
(¶8} Hue Jackson, Jackson's father, testified that he telephoned Webster about this incident, asking if anything inappropriate was occurring between Webster and Jackson. During this call, Hue told Webster that Jackson was only 15 years old. Hue explained to the jury that he was sure of the date that he had called Webster because he had been the head coach of the Oakland Raiders at the time, and he remembered that his team was playing the Denver Broncos that Sunday. He was also sure of the timing because his newborn daughter was soon to come home from the hospital.
(¶9} As further evidence that there was a relationship between Webster and Jackson, the state submitted evidence that Webster and Jackson had had 84 cellular telephone contacts that month.
The November 2009 Charge
(¶10} After Jackson had been caught with Webster in his car, she had been "grounded." But, according to Jackson, she continued to see Webster two to three times a week during November 2009. Jackson testified that she would tell her mother that she was going jogging in the neighborhood and instead would meet Webster at a predetermined location. Jackson stated that she and Webster had sexual intercourse in his car on these occasions while the car was parked in an apartment building parking lot or in the parking lot of a nearby retirement center. Jackson also testified that, in November 2009, she had a heart with Webster's initial tattooed on her body.
(¶11} Michelle Jackson testified that, in November 2009, she would frequently watch her daughter leave to go jogging in the neighborhood, and at the same time would notice a car leaving Webster's driveway. Michelle was sure that these events occurred in November 2009 because she would watch Jackson from a second floor window as she fed her newborn baby. According to Michelle, her daughter would be gone 30 to 40 minutes at a time on these occasions, and when she returned she did not look as if she had been running.
(¶12} In further support of the November 2009 charge, the state introduced into evidence telephone records showing 125 telephone contacts between Jackson's cellular telephone number and Webster's cellular telephone number during that month.
The December 2009 Charge
(¶13} In regard to the December 2009 charge, the state introduced records showing 117 telephone contacts between Webster's telephone number and Jackson's telephone number that month. The state did not present evidence of sexual contact between Jackson and Webster during this month, and Jackson testified that she thought that Webster had left town in December 2009.
Evidence in Support of all Charges
(¶14} In support of all of the charges, the state played a series of taped conversations between Jackson and Webster that Jackson had secretly recorded at the direction of investigating police officers. In them, Webster references his and Jackson's sexual relationship but is vague as to its timing. In one of the calls, Webster joked with Jackson about how young she was. That call was made in 2011.
(¶15} Finally, the state produced a taped confession in which Webster admitted to detective Brian Pitchford that he and Jackson had had a sexual relationship. Webster stated that he didn't know exactly when the relationship began, but that he remembered Hue Jackson confronting him about being alone with his daughter in Webster's car. Webster implied that he had been sexually involved with Jackson at the time that Hue had called. He also admitted that the relationship may have started in 2009. And he confessed that he and Jackson would text each other to arrange their sexual encounters. Webster further confessed that he didn't know how old Jackson was at the time that he had started a sexual relationship with her. He thought that she may have been "15, 14, 16."
(¶16} At trial, Webster attempted to discredit the state's version of events as it related to the timing of their relationship and also attempted to establish that Jackson appeared to be older than she was.
(¶17} During the cross-examination of the state's witnesses, the defense drew out inconsistencies in some of the testimony, and highlighted Jackson's inability to remember specific dates. The defense also elicited testimony from Jackson suggesting that Pitchford may have coached her as to the timing of her relationship with Webster. And the defense thoroughly questioned Pitchford concerning Webster's confession. Counsel focused on Pitchford's numerous leading questions concerning the dates at issue, pointing out that Webster could not remember specific dates until Pitchford suggested the dates to him.
(¶18} Several witnesses for the defense were called. Webster's brothers-in-law, nicknamed "Redman" and "Bud, " were living with Webster in 2009. They testified that they and each of their girlfriends had had almost exclusive use of Webster's cellular telephone during the months in question. Other witnesses for the defense corroborated this testimony, stating that it was difficult to reach Webster on his cellular telephone because he did not answer it. According to Redman and Bud, Jackson sold marijuana to them on a regular basis and the telephone calls and texts between Jackson's cellular telephone and Webster's cellular telephone often concerned a marijuana sale.
(¶19} Witnesses for the defense also testified that Jackson appeared to be older than 15 years old, claiming that Jackson had been driving in the fall of 2009 and that she had been admitted to a night club after showing identification.
(¶20} Webster's wife, Jennifer, testified that Webster was out of town many times throughout the four-month span at issue. Jennifer believed that Webster had been having an affair in June 2010 based on how Webster had been acting at the time and also based on certain health issues that Jennifer developed in August 2010 that had required a trip to the gynecologist.
The Specificity and Sufficiency of the State's Case
(¶21} In his first and second assignments of error, Webster claims that the state failed to distinguish specific instances of sexual conduct in its indictment and bill of particulars, and during trial. This lack of specificity, according to Webster, hampered his ability to present a defense in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. Webster further claims that the state's lack of specificity during trial necessarily resulted in a failure of proof and that his convictions are therefore not supported by sufficient evidence.
(¶22} Webster cites Valentine v. Konteh, 395 F.3d 626 (6th Cir.2005), and State v. Hemphill, 8th Dist. Cuyahoga No. 85431, 2005-Ohio-3726, in support of his argument that the state's case lacked the requisite level of specificity to sustain his convictions. Both cases are distinguishable from the present one.
Valentine and Hemphill
(¶23} Defendant Michael Valentine was accused of sexually abusing his stepdaughter. The state charged him with 20 counts of child rape and 20 counts of felonious sexual penetration of a minor. The state alleged that all of the counts occurred over the same ten-month period. Each rape count in the indictment contained identical language from the Ohio Revised Code, as did each sexual penetration count. The state's bill of particulars alleged that each crime had occurred in the family home. The Sixth Circuit Court of Appeals determined that the fatal flaw in the state's case against Valentine was that, in its indictment and in its evidence presented at trial, "the prosecution did not attempt to lay out the factual bases of forty separate incidents that took place." Valentine at 633. The only evidence presented concerning the number of sexual encounters between Valentine and his victim came from the victim herself, who described what a typical abusive encounter consisted of and then estimated the number of time the behavior had occurred. Id. at 632-633. The court determined that "[g]iven the way that Valentine was indicted and tried, it would have been incredibly difficult for the jury to consider each count on its own." Id. at 633. As a result, Valentine was tried and convicted in an "all or nothing" fashion. Id. at 634.
(¶24} In Hemphill, the defendant had been indicted for 99 sexually oriented offenses. The indictment essentially alleged three types of sexual crimes occurring over varying timeframes. Hemphill was convicted of 22 counts each of rape and gross sexual imposition with sexually violent predator specifications, 7 counts each of rape and gross sexual imposition without specifications, and 29 counts of kidnapping with sexual motivation specifications. Relying on Valentine, the Eight Appellate District held that the state had failed to adequately differentiate these counts and, with three exceptions, failed to subject each count to individual proof. The court found that for the vast majority of the charges, Hemphill had, like Valentine, been convicted based on a generic description of sexual acts combined with a numerical estimate of how many times the act had occurred. Hemphill at ¶ 88-92.
(¶25} In the present case, the state's indictment and bill of particulars sufficiently differentiated among the counts charged. The state, as is permissible, used the same language in each of its counts of sexual conduct with a minor. But it distinguished the charges by narrowing the time frame of each. And Webster was given notice in the bill of particulars that the state was alleging that vaginal intercourse between Webster and Jackson took place in Webster's home and in his car while his car was parked in parking lots close to his home. Alleging one count a month of sexual conduct with a minor and describing the sexual act and the place where it occurred is a far cry from the indictments in Hemphill and Valenti ...