from the Franklin County Court of Common Pleas. C.P.C. No.
brief: Ron O'Brien, Prosecuting Attorney, and Barbara A.
Farnbacher, for appellee. Argued: Barbara A. Farnbacher.
brief: Giorgianni Law LLC, and Paul Giorgianni, for
appellant. Argued: Paul Giorgianni.
1} This is an appeal by defendant-appellant, Dennis
White, from a judgment of conviction and sentence entered by
the Franklin County Court of Common Pleas following a bench
trial in which the trial court found him guilty of two counts
of kidnapping and four counts of rape.
2} On April 17, 2014, appellant was indicted on two
counts of kidnapping, in violation of R.C. 2905.01, and four
counts of rape, in violation of R.C. 2907.02. The complaint
alleged acts arising on or about October 5 and November 13,
1995, involving two victims, V.G. and T.L.
3} The matter was tried to the bench beginning April
21, 2015. The first witness for the state was V.G. In 1995,
V.G. worked in Columbus performing housekeeping services.
V.G. and her three children resided with V.G.'s father at
4} In October 1995, V.G. was walking in the area of
"18th and Monroe off of Main Street, " after taking
a bus to that location to look for her teenage daughter.
Unable to locate her daughter, V.G. decided to leave. As she
was leaving the area, V.G. encountered a male who "asked
where was I going. He offered me a ride home." (Tr. Vol.
I at 31.) V.G. got into the vehicle, and the man inquired if
she drank beer. V.G. responded that she did and the man drove
to a store to purchase beer. V.G. drinks "Old
English" beer. (Tr. Vol. I at 35.) At trial, V.G.
identified plaintiff-appellee, the State of Ohio's
exhibit No. 28 as two 40 ounce cans of "Old English
800." (Tr. Vol. I at 37.)
5} The man then drove to the residence of V.G.'s
father. V.G. and the man drank beer on the porch; around
midnight, V.G. and the man left her father's residence to
get some money. The man drove to East Livingston Avenue. He
then "got very violent" and said: "Bitch, quit
playing games with me. You know what I want and all this type
stuff like that." (Tr. Vol. I at 40.) V.G. spoke
"smart back" at the man, and he reacted
"[r]eal violent" by stopping the vehicle suddenly.
V.G. "felt afraid because [she] didn't know where
[she] was, " and she "had nothing to protect
[her]." (Tr. Vol. I at 41.)
6} The man drove to the back of a school yard and
stopped the vehicle, opening the passenger side door. V.G.
testified that he "forced himself on me inside the car,
pulling my clothes and my shorts off to the side."
According to V.G., he was "sexually picking my clothes
off and entering me, my leg off, you know, forcing yourself
inside someone. You're laying there trying to look and
think something to get away and you can't." (Tr.
Vol. I at 53.)
7} The man "went into the trunk of the car. He
had a belt." He began pulling V.G. from the vehicle,
"[t]rying to tear [her] clothes." He then dragged
her toward a tree. V.G. testified that he "[p]ut a belt
around my neck and just trying to make me suck his [penis].
And I remember biting it and taking off running and
screaming. And I guess [I] must have * * * made him nervous *
* * because I remember him running back, getting in the
car." (Tr. Vol. I at 42.) V.G. wrote down the license
plate number of the vehicle on her leg. (Tr. Vol. I at 49.)
After the man left the area, V.G. called the police from a
8} At trial, V.G. identified photographs taken of
her at a hospital following the incident; she stated that the
pictures identified bruising to areas of her neck, arm,
knees, and back. V.G. spoke with a police detective at the
hospital, and the detective showed her a photographic array.
V.G. permitted hospital personnel to conduct testing with a
rape kit "[b]ecause I was raped and assaulted and I
didn't want * * * diseases." (Tr. Vol. I at 56.)
V.G. testified she did not have consensual sex with the man.
9} Subsequent to the incident, V.G. thought she saw
her assailant drive past her father's house and make a
threatening gesture with his hand. V.G. informed detectives
that she "didn't want to be involved any more"
because she did not want anyone to "come back and harm
my father." (Tr. Vol. I at 61.) V.G. also informed
police that she did not want to testify in court. At trial,
V.G. identified appellant as the individual who assaulted and
10} On cross-examination, V.G. acknowledged she was
using crack cocaine in 1995, and she recalled smoking crack
cocaine with appellant on the evening at issue. V.G. stated
that around that time period she also worked at a
"bootleg, " an establishment where "they sell
illegal drinks-beer, liquor." (Tr. Vol. I at 87.) V.G.
became acquainted with prostitutes through her work at the
"bootleg." V.G. denied that she had ever engaged in
11} In 1995, Columbus Police Officer Kevin Jackson
was assigned to the third shift on the east side of Columbus.
On November 14, 1995, Officer Jackson was dispatched to
Brookway Road following a report of a rape assault. The
officer met a female, later identified as T.L., who stated
that the incident occurred at approximately 4:00 a.m. The
alleged victim described her assailant as "a male black
who had [a] dark complexion, a thin mustache, was balding to
no hair, between the age of 22 to 23 years." T.L.
provided a description of the man's vehicle as a
"dark maroon or burgundy * * * newer model Chrysler New
Yorker." (Tr. Vol. I at 112.) Officer Jackson forwarded
that information to a detective.
12} In 1995, T.L. resided on Brookway Road near
Livingston Avenue. T.L. worked at United Dairy Farmers,
located at the corner of Livingston Avenue and Barnett Road,
within approximately a three-block radius of her residence.
T.L. did not have a vehicle at the time, and she walked to
work. On November 13, 1995, T.L. walked from her townhome on
Brookway Road toward Livingston Avenue. As she approached a
traffic light near Livingston Avenue and Barnett Road, a
vehicle pulled up beside her and the driver asked if she
needed a ride; the driver was a black male, with a dark
complexion. The man "asked me how far was I headed. And
I told him just going down the street to United Dairy
Farmers. And he said, I'm going in that location
also." T.L. testified: "I had been drinking that
night and I did get into the car with him." (Tr. Vol. I
13} The driver "went past Livingston, turned up
Barnett [and] went behind United Dairy Farmers." At that
point, T.L. thought she "was in big trouble." (Tr.
Vol. I at 127.) The man pulled a knife on T.L., pointing it
toward her as he drove behind United Dairy Farmers. He
stopped the vehicle, "stepped up over the seat over top
of [her] and he told [her], bitch, gets your clothes
off." (Tr. Vol. I at 128.) T.L. took her clothes off
"[b]ecause he had a knife on me." (Tr. Vol. I at
129.) He first pushed T.L.'s head down between his legs,
forcing his penis in her mouth. The man then got on top of
her. He held the knife to her throat and penetrated her
vagina "with his penis." T.L. testified that she
"was crying and * * * begging him not to do it and he
wouldn't stop. He wouldn't stop until he was
finished." (Tr. Vol. I at 130.) The man then "got
off of me, set back in the seat of the car, he proceeded to
start the car up and tell me, bitch, that wasn't going to
be all. The next time he was going to fuck me in my ass and
then kill me." (Tr. Vol. I at 131.) The man "told
me that * * * wasn't going to be the last time,
bitch." (Tr. Vol. I at 118-19.)
14} He started the vehicle and began to drive away.
T.L. was in "fear of [her] life, " and as the
vehicle approached a stop sign she "jumped out of the
car as it was moving. * * * He sped off." (Tr. Vol. I at
119.) T.L. contacted police, and told an officer she was
"assaulted" and that her "life was
threatened." (Tr. Vol. I at 120.) T.L. was taken to a
hospital for treatment, and a rape kit was administered.
15} T.L. testified that none of the activity was
consensual. At trial, she identified state's exhibit Nos.
17 and 18 as photographs depicting the location where the
incident took place. T.L. stated that she fully cooperated
with police during the investigation. On cross-examination,
T.L. acknowledged she was intoxicated on the date of the
incident, and that she was less than a block from United
Dairy Farmers when appellant stopped his vehicle.
16} On November 14, 1995, Columbus Police Detective
Kenneth Lawson responded to a sexual assault dispatch in
which the individual reporting the assault had been taken to
a hospital for a forensic examination. Detective Lawson
interviewed T.L. that evening at the hospital, and collected
several items of clothing and a rape kit containing slides
and a swab; the detective submitted those items to the police
department's property room.
17} A police investigator subsequently provided
information to Detective Lawson, advising him to "look
at Dennis White." The investigator informed Detective
Lawson that the same parking lot "had been used in a
prior sexual assault that he was investigating." The
investigator showed Detective Lawson "a photo of a
license plate that was written on that victim's
thigh" in the prior case; the investigator "[s]aid
that through his investigation he learned that Dennis [White]
was the brother of the person who had that car." (Tr.
Vol. I at 168.)
18} Detective Lawson prepared a photographic array
which included appellant's picture. He showed the array
to T.L., who stated that the individual in position number
five had a similar skin tone as her assailant, and that the
individual in position number six had similar eyes. She did
not unequivocally identify any of the individuals in the
array as her assailant. Detective Lawson testified that the
investigation ended at that point because T.L. "was not
interested in pursuing the case and so we classified it as *
* * exceptionally cleared." According to the detective,
"[t]he lab results came back saying that there was
evidence with which we could work, which is why I prepared a
search warrant in anticipation of needing blood; but we
deferred to [T.L.'s] interest at that time, and she did
not want to pursue the case." (Tr. Vol. I at 183.) T.L.
told the detective: "I'm not comfortable pursuing a
case if I can't say positively who it was." (Tr.
Vol. I at 202.)
19} Columbus Police Detective Timothy Hedrick, a
member of the department's sexual assault unit, testified
that he had reviewed old case files pertaining to V.G. and
T.L. At trial, Detective Hedrick identified a number of
exhibits from those cases, including property submitted to
the Ohio Bureau of Criminal Investigation ("BCI")
lab for analysis. The department "had a CODIS [Combined
DNA Index System] hit come back from the lab identifying the
suspect." (Tr. Vol. II at 249.) Detective Hedrick
subsequently contacted V.G. and T.L., and both individuals
indicated they were willing to cooperate. After obtaining the
"CODIS match * * * from BCI, " a warrant was issued
and appellant was arrested. (Tr. Vol. II at 251.) Detective
Hedrick obtained DNA swabs from appellant at that time and
submitted those samples to the BCI lab. According to
Detective Hedrick, "[t]he main reason for reopening a
case is due to the advancement of the science [and] what the
lab can do with the specific property items." (Tr. Vol.
II at 246-47.) The detective testified that the basis for
charging appellant "was basically the DNA results."
(Tr. Vol. II at 275.)
20} Police detectives, including Detective Hedrick,
interviewed appellant, and the state played a recording of
that interview at trial. During the interview, appellant told
detectives he did not "even know those women." (Tr.
Vol. II at 263.) He also denied giving rides to two women in
1995 in the geographical areas indicated by the alleged
21} Hallie Garofalo, a forensic scientist with the
DNA unit of BCI, testified that she analyzed DNA collected
from V.G. and appellant and prepared a DNA report, dated May
5, 2014, summarizing those test results. Based on the
evidence collected, Garofalo opined that appellant
"cannot be excluded as the source of the DNA in the
sperm fraction of the vaginal slides." (Tr. Vol. I at
22} Garofalo also analyzed DNA collected from T.L.
and appellant. Garofalo testified that "[differential
extraction of the vaginal slides * * * resulted in a mixture
consistent with contributions from [T.L.] and Dennis
White." Garofalo opined that appellant "cannot be
excluded as a contributor to the DNA from the vaginal
slide." (Tr. Vol. I at 219.)
23} At trial, appellant testified on his own behalf,
and he acknowledged a 1998 burglary conviction for which he
received a seven-year sentence. Appellant stated he was
addicted to crack in 1995, and that he engaged in sexual
activities with prostitutes at that time.
24} Appellant gave the following testimony with
respect to his encounter with V.G. on October 5, 1995:
I met [V.G.] as I was driving down the street. It was kind of
late at night and she was walking down the street and she
flagged me over. I pulled over and we talked. And I asked her
does she have a stem. A stem is a crack pipe. And she said
yes. So I told her I had some crack, you know, you want to
get high with me. So she said yes. She got in the car. And in
the process of us talking we decided that if I smoke some
crack with her she would perform oral sex on me and I will be
able to have sex with her.
(Tr. Vol. II at 302.)
25} Appellant, who was driving a 1990 Pontiac,
stated that he stopped the vehicle because "she was a
prostitute. I knew she was a prostitute and I knew she
probably knew where I could go get some crack."
Appellant believed the woman was a prostitute by "the
way she was acting." (Tr. Vol. II at 304.) According to
appellant, after V.G. got inside the vehicle "we just
like drive and pull over, smoke, drive, pull over, smoke,
pull over, smoke * * * as I recall over towards Scottwood and
Barnett." (Tr. Vol. II at 308-09.)
26} Appellant stated he was "rubbing her leg.
She's rubbing on my leg." Appellant told the woman:
"You know, I want some head. Can you give me some head?
Yeah, sure. How much are you going to smoke with me? We going
to smoke all of this." (Tr. Vol. II at 309.) Appellant
testified: "We just had sex and she gave me some
head." Appellant stated they were together "about
four hours." (Tr. Vol. II at 310.) He denied driving to
the home of V.G.'s father; he also denied observing two
bottles of Old English 800, or that he saw V.G. drinking
27} Appellant testified that "it got to the
point where I got tired of driving and pulling over, hitting,
driving, pulling over, hitting. I got tired so I knew a place
we could go where it wouldn't be no problem, we just sit
there." (Tr. Vol. II at 311-12.) He then drove to a
location on Scottwood Road and turned off the engine.
Appellant denied forcing V.G. to have sex, and stated she
willingly engaged in oral sex. He also denied using his belt
to choke her during the incident. According to appellant, the
encounter ended when they had a disagreement over her ...