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State v. Jones

Court of Appeals of Ohio, Tenth District

March 30, 2017

State of Ohio, Plaintiff-Appellee,
Kyle L. Jones, Defendant-Appellant.

         APPEAL from the Franklin County Court of Common Pleas (C.P.C. No. 14CR-4988)

         On brief:

          Ron O'Brien, Prosecuting Attorney, and Laura R. Swisher, for appellee.

          Timothy Young, Ohio Public Defender, and Eric M. Hedrick, for appellant.


          Eric M. Hedrick.

          Laura R. Swisher.


          DORRIAN, J.

         {¶ 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 affirm.

         I. 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 being locked.

         {¶ 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 appellant.

         {¶ 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 testimony:

THE COURT: What would her testimony be, to the best of your knowledge?
[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 ...

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