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State v. Triona

Court of Appeals of Ohio, Fifth District, Licking

May 22, 2017

STATE OF OHIO Plaintiff-Appellee
v.
ANTHONY B. TRIONA Defendant-Appellant

         Appeal from the Licking County Court of Common Pleas, Case No. 2015CR804

          For Plaintiff-Appellee PAULA SAWYERS Chief Assistant Prosecuting Attorney.

          For Defendant-Appellant ROBERT C. BANNERMAN.

          JUDGES: Hon. Patricia A. Delaney, P.J. Hon. William B. Hoffman, J. Hon. Earle E. Wise, Jr., J.

          OPINION

          HOFFMAN, J.

         {¶1} Defendant-appellant Anthony B. Triona appeals his conviction and sentence entered by the Licking County Court of Common Pleas. Plaintiff-appellee is the state of Ohio.

         STATEMENT OF THE FACTS AND CASE

         {¶2} Two victims are involved in this case, A.I. and J.K. On January 5, 2015, Appellant contacted A.I. through Facebook, and asked her to come to his residence. Appellant and A.I. had a previous relationship, but had not been in contact for some time prior to January 5, 2015. A.I. arrived at Appellant's residence sometime after midnight on January 6, 2015, and they went to Appellant's bedroom.

         {¶3} The parties talked for a while. When A.I. attempted to leave the room, she maintains Appellant pushed her backwards onto the bed. Appellant then held her arms above her head, removed her leggings and proceeded to engage in vaginal intercourse with A.I. A.I. claims she repeatedly told Appellant to stop, and tried to get up, but Appellant held her down. Tr. at 134. Appellant bit A.I's breast during the encounter. Tr. at 139. A.I. cried, making small noises and struggled during the encounter. Tr. at 135-136. Appellant placed a pillow on A.I.'s face, and held her wrist down. Id. Appellant told A.I. he would not stop "until he was done." Tr. at 138. Immediately after the incident, A.I. left the residence.

         {¶4} In a controlled phone call by law enforcement the next day, Appellant stated he had never done such a thing before, hoped they could remain friends, and believed his "power and control" just took over the situation. Appellant admitted to engaging in "pretend rape" with other girlfriends, and believing Appellant would enjoy it. Tr. at 379.

         {¶5} At trial, Appellant admitted to engaging in rough sex with A.I., as he thought she would "enjoy it." Tr. at 359. He told her before the encounter he was "better at sex" and "had learned some new things." He did not tell her specifically what he would do to her. Tr. at 358. He maintains A.I. never told him to stop, did not struggle and consented to the encounter despite having a boyfriend.

         {¶6} J.K. dated Appellant during the summer months of 2012. J.K. attended bonfires at Appellant's mother's house. During a bonfire, Appellant asked J.K to look at something in the barn with him, and locked the door. J.K. maintains she told Appellant she would not have sex with him that night as his parents were sleeping inside the residence. Tr. at 289. Appellant then pushed J.K. downward onto the cement floor, placing one arm on her upper back to hold her down while he pulled down the leggings she was wearing.[1] Tr. at 290. J.K. maintains she struggled to get up, and told Appellant "no" and to "stop." Tr. at 291-292. Appellant attempted anal penetration; subsequently, engaging in vaginal intercourse with J.K. J.K. repeatedly told Appellant to stop and shouted at him. Appellant's mother pounded on the man door to the barn, and Appellant stopped.

         {¶7} Appellant testified at trial he had a sexual relationship with J.K. at the time, and they had sexual intercourse in the barn on several occasions. However, Appellant denied recollection of the specific encounter with J.K.

         {¶8} Appellant admits to engaging in rape role play, or pretend rape as a sexual activity.

         {¶9} On April 21, 2016, the Licking County Grand Jury indicted Appellant on two counts of rape (Counts One and Three), in violation of R.C. 2907.02(A)(2), felonies of the first degree; and one count of resisting arrest (Count Two)[2], in violation of R.C. 2921.33(A), a misdemeanor of the second degree.[3]

         {¶10} On June 24, 2016, the trial court conducted a rape shield hearing, wherein the parties stipulated to Appellant having a prior relationship with the alleged victims. The parties agreed they would not inquire as to specific instances of any prior relationships, particularly any acts of sexual activity predating the offenses charged.

         {¶11} On June 27, 2016, Appellant filed a request for relief from prejudicial joinder. Appellant moved the trial court for relief from joinder of the three counts relating to two different victims in a single indictment. Appellant argued joinder in a single indictment would prejudice his opportunity to have a fair trial, citing Criminal Rule 14 governing relief from joinder in a single indictment. Specifically, Appellant moved the trial court to sever Count Three, pertaining to J.K., from Counts One and Two, pertaining to A.I., from the indictment "for the purposes of any further proceedings herein."[4] The State filed a memorandum contra Appellant's motion to sever on June 29, 2016. The trial court overruled the motion on the record prior to trial.[5]

         {¶12} Following a jury trial, Appellant was convicted on all counts. The trial court conducted a sentencing hearing, and imposed sentence via August 22, 2016 Judgment Entry.

         {¶13} Appellant appeals, ...


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