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State v. White

Court of Appeals of Ohio, Tenth District

March 7, 2017

State of Ohio, Plaintiff-Appellee,
Dennis White, Defendant-Appellant.

         APPEAL from the Franklin County Court of Common Pleas. C.P.C. No. 14CR-2017

          On brief: Ron O'Brien, Prosecuting Attorney, and Barbara A. Farnbacher, for appellee. Argued: Barbara A. Farnbacher.

          On brief: Giorgianni Law LLC, and Paul Giorgianni, for appellant. Argued: Paul Giorgianni.


          BROWN, J.

         {¶ 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 the time.

         {¶ 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 phone booth.

         {¶ 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 raped her.

         {¶ 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 prostitute activity.

         {¶ 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 at 126.)

         {¶ 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 victims.

         {¶ 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 214.)

         {¶ 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 beer.

         {¶ 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 ...

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