from the Franklin County Court of Common Pleas (C.P.C. No.
O'Brien, Prosecuting Attorney, and Laura R. Swisher, for
Timothy Young, Ohio Public Defender, and Eric M. Hedrick, for
1} Defendant-appellant, Kyle L. Jones, appeals from
an amended judgment entry of the Franklin County Court of
Common Pleas sentencing him to 14 years imprisonment pursuant
to jury verdicts of guilty on two counts of rape and one
count of kidnapping, and from a judgment entry denying his
motion for a new trial. For the reasons that follow, we
Facts and Procedural History
2} Appellant was indicted on six counts of rape, in
violation of R.C. 2907.02, alleging that on or about
September 1, 2014, he engaged in sexual conduct with the
victim, B.D., and purposely compelled her to submit by force
or threat of force. Each of the six counts asserted a
different type of sexual conduct: vaginal intercourse, anal
intercourse, digital vaginal penetration, digital anal
penetration, cunnilingus, and fellatio. Appellant was also
indicted on one count of kidnapping, in violation of R.C.
2905.01, alleging that by force, threat, or deception
appellant removed B.D. from the place where she was found or
restrained her liberty for the purpose of engaging in sexual
activity with her against her will.
3} The charges were tried before a jury in the
Franklin County Court of Common Pleas. At trial, B.D.
testified that she had been acquainted with appellant
approximately ten years and they had become friends. She
stated that she contacted appellant a few days prior to
September 1, 2014 because someone had tried to break into her
house and she thought appellant might be able to help her get
a gun. She stated she went with appellant to several
different locations but appellant did not obtain a gun for
her. B.D. testified that she then went back to the home of a
friend where she was staying. She subsequently received a
text message from appellant in the early morning hours of
September 1, 2014, instructing her to come over. B.D. stated
she picked appellant up in her car and that he again took her
to several different locations. They ultimately arrived at
the apartment of a man B.D. did not previously know, who was
referred to as "Red." B.D. testified that she,
appellant, and Red went to the basement of Red's
apartment together, and then appellant and Red went back
upstairs. B.D. testified that she was in the basement alone
for a time. When B.D. was in the basement, she asked to go to
the bathroom and discovered that the basement door was locked
from the outside. She was not allowed to go to the bathroom.
B.D. testified that appellant returned to the basement and
was snorting lines of something B.D. presumed was cocaine.
B.D. stated that she got up to leave, but appellant blocked
the stairway and threatened to hit her in the head with a
vase. B.D. stated appellant then tried to laugh off the
comment. B.D. testified that by this point she had been in
the basement for a couple of hours.
4} B.D. told appellant that her phone was dead. In
response, she was provided with a charger and began to charge
her phone. While waiting, appellant encouraged B.D. to snort
some of the substance he had. B.D. complied and began
vomiting violently. Appellant then brought B.D. some water.
B.D. testified that after she drank the water she began to
feel like she could not move. She asked appellant what he had
given her and appellant responded that he had given her a
"Molly." (Tr. Vol. I at 57.) He then stated that it
was like Ecstasy and contained Percocet and cocaine. Once
B.D. felt that she could move and her phone was charged, she
again tried to leave. B.D. testified that when she reached
for her phone, appellant knocked it out of her hand and
punched her twice on the side of the head. B.D. testified
that she was knocked unconscious by the blows. When she
awoke, B.D. was partially on a cot, with her clothes removed.
She was bleeding from a cut above her eye. B.D. testified
that appellant was behind her, attempting to penetrate her
anus with his penis. B.D. testified that she did not know if
appellant had placed his penis in her mouth or vagina, but
that she felt burning and pain in her vagina.
5} B.D. screamed for help and Red opened the
basement door and asked if everything was okay. When B.D.
responded no, Red came into the basement and asked what was
going on. Red tried to help B.D. get cleaned up, taking her
to the bathroom and attempting to stop the bleeding from the
cut above her eye. Red then made B.D. and appellant leave.
B.D. testified that she let appellant get in her car and
drove away, but then made him get out of the car a few blocks
later. She stated appellant apologized but he did not
specifically state why he was apologizing. B.D. testified
that she drove to her daughter's home in Logan, Ohio, and
then went to the hospital where police were called. On
cross-examination, B.D. admitted that the written statement
she made at the hospital did not refer to the basement door
6} James Gwynn, Jr., testified that he was known as
"Red, " and that on the morning of September 1,
2014, appellant and a woman he had never met before arrived
at his apartment. Gwynn stated that appellant asked if they
could come in and relax for a while; Gwynn agreed, and
allowed appellant and the woman to go down to the basement.
Gwynn testified that he went upstairs to his room while
appellant and the woman went to the basement. He later heard
something and went to the basement door to ask if everything
was okay. The woman responded that it was not and told Gwynn
to come into the basement. Gwynn testified that when he went
to the basement the woman was fully dressed and bleeding from
a cut on her face. Gwynn took the woman to the bathroom to
clean up. He stated that appellant was begging and pleading
for the woman's forgiveness. Gwynn testified that the
basement door was not locked and did not have a lock on it.
He stated that there were drops of blood in the basement, but
that he did not see any vomit. Gwynn testified that appellant
and the woman were in the basement for no more than three
hours. Gwynn stated that appellant asked the woman to give
him a ride home; she agreed and they left together.
7} The sexual assault nurse examiner who examined
B.D. at the hospital testified that B.D. had an abrasion
above her right eye and dried blood on her face, chest, and
shirt. The nurse examiner further testified B.D. stated that
appellant penetrated her vagina with his fingers and penis
and her anus with his fingers and penis. B.D. also reported
to the nurse that she had oral contact with appellant's
genitals and that appellant made oral contact with her
genitals. She indicated that her examination identified
redness around B.D.'s anus and discharge in her vagina.
The nurse examiner further testified that B.D.'s
toxicology screen later came back positive for cocaine and
Benzodiazepine. A forensic scientist from the Ohio Bureau of
Criminal Investigation testified that seminal fluid was
identified on the vaginal and anal samples taken from B.D. by
the sexual assault nurse examiner. Another forensic scientist
from the Ohio Bureau of Criminal Investigation testified that
she performed DNA testing on the vaginal and anal samples.
The anal sample did not provide enough DNA to perform a
comparison; however, on the vaginal sample there was a
complete DNA profile consistent with a sample taken from
8} Detective David Bobbitt of the Columbus Division
of Police sexual assault unit testified he was the lead
detective on the investigation of the rape of B.D. Detective
Bobbitt testified that he interviewed B.D. approximately four
days after the rape occurred. He observed that B.D. had a
fresh abrasion over her eye that was healing. B.D. told
Detective Bobbitt that she knew her assailant by the street
name "Bird, " but subsequently learned that his
name was Kyle Jones. Based on that information and B.D.'s
physical description of her assailant, Detective Bobbitt
prepared a photo lineup that included appellant's
photograph. Detective Jason Sprague of the Columbus Division
of Police sexual assault unit administered the photo lineup
and testified that B.D. identified a photograph of appellant
as the man who raped and assaulted her. Detective Bobbitt
testified that B.D. gave a comprehensive interview describing
the incident. On cross-examination, Detective Bobbitt
testified he did not recall B.D. telling him that she was
locked in the basement or that she lost consciousness during
the encounter. Detective Bobbitt further testified that he
and Detective Sprague went to the address B.D. provided,
where they interviewed the occupant, Gwynn, took photographs,
and collected evidence.
9} Detective Bobbitt testified that he interviewed
appellant following his arrest and a redacted video of that
interview was played for the jury. During the interview,
appellant initially denied knowing B.D., but later clarified
that he did not know her by name. Appellant stated he had
known B.D. for quite a while and that she had purchased crack
cocaine from him. Appellant claimed that he met up with B.D.
on September 1, 2014 at the Fountain Park Apartments, and
they then went to the apartment of an acquaintance at
Riverdale Square. Appellant asserted he did not know the name
of the acquaintance, but that he was an African-American man
with red hair. Appellant claimed that he and B.D. went to the
basement of the apartment together, where B.D. smoked crack.
He stated that B.D. wanted more crack but said she did not
have any money and offered to have sex with him. Appellant
said that they had sex and then B.D. smoked more crack.
Appellant asserted that B.D. then asked for more crack but he
did not have any. They then left the apartment together and
B.D. gave him a ride. Appellant claimed that the red-haired
man never came down to the basement. When asked about the
sexual activity, appellant asserted that he and B.D. engaged
in simulated sex, but did not remove their clothes and that
there was no penetration. He stated that B.D. then performed
oral sex on him. During the interview with Detective Bobbitt,
appellant adamantly denied punching B.D. in the face.
10} Plaintiff-appellee, State of Ohio, then
presented its evidence and witnesses. Thereafter,
appellant's trial counsel sought to call Amanda Barber as
a witness. However, Barber did not appear to testify at
trial. When questioned by the trial court, appellant's
trial counsel asserted that he had sent a subpoena to Barber
by mail and that she had acknowledged receipt of the subpoena
during a telephone call. Outside the presence of the jury,
appellant's trial counsel explained Barber's likely
THE COURT: What would her testimony be, to the best of your
[Appellant's Trial Counsel]: I was looking at her
interview summary. I am not talking about the earlier
incident where she states that [B.D.] came to try to sell her
pills and called them Percocets for crack, but obviously that
didn't work. And then on the day this occurred, she said
she had seen her about 2:00 p.m. She saw [Barber] pulling in
front of the apartments [sic] -- or she was pulling in front
of the apartments. She saw [B.D.] in the parking lot.
She was waiting for $40 worth of crack. She was saying she
had a cut above her eye and was telling her that she was
robbed, and they took her purse and cellphone at the Fountain
Park Apartments. She saw the scratch on the eye, and
that's about it.
THE COURT: So her testimony would be that [B.D.] told her
that she was ...