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State v. [T.E.H.]

Court of Appeals of Ohio, Tenth District

June 6, 2017

State of Ohio, Plaintiff-Appellee,
v.
[T.E.H.], Defendant-Appellant.

         APPEALS from the Franklin County Court of Common Pleas C.P.C. Nos. 15CR-2461, 15CR-2462, 15CR-4300.

         On brief:

          Ron O'Brien, Prosecuting Attorney, and Barbara A. Farnbacher, for appellee.

         Argued:

          Barbara A. Farnbacher.

         On brief:

          Todd W. Barstow, for appellant.

         Argued:

          Todd W. Barstow.

          DECISION

          SADLER, J.

         {¶ 1} Defendant-appellant, T.E.H., appeals from three judgment entries of the Franklin County Court of Common Pleas finding appellant guilty of multiple counts of rape with sexually violent predator specifications, gross sexual imposition with sexually violent predator specifications, unlawful sexual conduct with a minor, importuning, and disseminating matter harmful to a minor. For the following reasons, we affirm the judgments of the trial court.

         I. FACTS AND PROCEDURAL HISTORY

         {¶ 2} This case involves the appeal of appellant's convictions in three cases involving separate child victims. In case No. 15CR-2461 (16AP-384), appellant was indicted on ten counts of rape with sexually violent predator specifications for his alleged sexual conduct with R.H., who was 11 years old at the time of the conduct. In case No. 15CR-2462 (16AP-385), appellant was indicted on three counts of rape with sexually violent predator specifications, three counts of gross sexual imposition with sexually violent predator specifications, and three counts of importuning, all involving A.Y., who was 9 or 10 years old at the time of the incidents. In case No. 15CR-4300 (16AP-386), arising from appellant's alleged actions with 13-year-old C.S., appellant was indicted on six counts of rape with sexually violent predator specifications, six counts of unlawful sexual conduct with a minor, and three counts of disseminating matter harmful to juveniles.

         {¶ 3} The trial court granted the motion of plaintiff-appellee, State of Ohio, to join the three cases for trial. The jury trial commenced March 22, 2016, and appellee commenced its case-in-chief.

         {¶ 4} C.S. testified that his birthdate is January 27, 1988. In 2011, when he was 13 years old, he lived with his grandmother, who was his guardian, and his sister, who was a year or so older than him. His father lived in Florida and his mom passed away in either 2010 or 2011. He was bullied in school. Kids picked on him for living with his grandmother, and because she did not have much money, he wore the same clothes to school several times a week.

         {¶ 5} C.S. was introduced to appellant by his sister in 2011. At that time, C.S. did not have many friends, and he had never had a male figure in his life. He went over to appellant's house several times "from March to September at least" and estimated that he saw appellant over one hundred times. (Tr. at 604.) Appellant treated him like a little brother, like "part of the family." (Tr. at 606.) Appellant bought C.S. several things, such as a cell phone and clothing, took C.S. shopping at the mall and a concert in Cleveland, and bought him a season pass to Kings Island. Appellant paid C.S.'s phone bill.

         {¶ 6} According to C.S., in exchange for what appellant bought him, appellant wanted sexual favors. The first time this happened, appellant had bought him a lot of clothes at the mall and, shortly thereafter, told C.S. that he wanted C.S. to let him do sexual acts as a way of paying him back. C.S. was confused and did not really know what he meant. At appellant's house, appellant asked him to pull down his pants, which appellant did, and appellant began sucking his penis until C.S. ejaculated. Appellant told him it was alright and nothing was wrong with doing it and that it felt good and was natural.

         {¶ 7} C.S. testified that this happened frequently over a six-month period of time, where nearly every weekend there would be some kind of sexual favor. Appellant also asked C.S. to have anal sex with him and helped C.S. put a condom on. C.S. did not want to have sex with appellant but thought if he did not do it appellant would get mad and take his stuff away. Appellant also asked C.S. to touch appellant's penis and go up and down, which C.S. did. C.S. testified that "[a]bout three times" appellant had pornography playing on his TV or iPad while C.S. was present in the room. (Tr. at 610.)

         {¶ 8} Appellant would often drive C.S. to the home of appellant's cousin, S.H., where A.Y. lived. C.S. did not really hang out with A.Y. and described A.Y. as mentally challenged, "never was always there in his head." (Tr. at 623.) The sexual favors occurred in S.H.'s home as well as appellant's bedroom.

         {¶ 9} According to C.S., appellant kept a spreadsheet-type of list on his computer keeping track of what appellant bought for C.S., what C.S. owed him, and "chores, " meaning sexual favors, that C.S. performed to pay off his debt. (Tr. at 620.) Appellant would sometimes get mad at C.S. when he would not come over and would say he would take away stuff from him, like the phone.

         {¶ 10} C.S. testified that the last time a sexual act occurred, appellant drove C.S. to a bridge and performed oral sex on C.S. After the bridge incident, C.S. reported what was happening to school personnel and spoke to a detective. At the time, C.S. stated he was scared and confused about everything and just wanted it to be over with and did not want to be around appellant anymore. Because of what appellant did, C.S. was confused about sex and did not know what was right and wrong. C.S.'s grandmother could not really drive and had problems getting C.S. to places the detective wanted him to go, so the case "kind of just got dropped." (Tr. at 634.) C.S. was okay with that because he just wanted to forget it ever happened to him. C.S. has been in counseling since he was 14 years old and now understands that it was not his own fault and that he was "being used" and "t[a]ken advantage of by appellant. (Tr. at 608.)

         {¶ 11} Mary Zimmerman, a social worker contracted to provide mental health support for the school district where C.S. attended middle school, testified that C.S. disclosed sexual abuse to her in September 2011. Zimmerman had known C.S. from working with him since his sixth grade school year and was listed on his "individual education plan" for emotional disturbance. (Tr. at 528.) In the beginning of his eighth grade year, C.S., who was upset and pacing, disclosed that appellant had touched his private parts and had C.S. touch appellant's private parts. C.S. stated that appellant would keep track of how much money C.S. owed him for things appellant bought C.S. and would reduce that amount after a sex act. As a mandated reporter, Zimmerman contacted Franklin County Children Services and also called the police and C.S.'s grandmother.

         {¶ 12} Jennifer (Westgate) Sherfield, MSW, LISW-S, a social worker employed as a forensic interviewer and mental health advocate at the Center for Family Safety and Healing at Nationwide Children's Hospital, testified to conducting an interview with C.S. (as well as R.H., as discussed later in this opinion). Sherfield explained that "[g]rooming and conditioning" are terms used to describe how perpetrators introduce children to the patterns of sexual abuse by, for example, befriending and giving a child things in exchange for sexual acts and introducing sexual acts incrementally. (Tr. at 458.)

         {¶ 13} During the interview, C.S. told Sherfield that he met appellant because his sister was dating appellant's nephew, that he was being bullied at school, and that kids were calling him gay. C.S. reported that during the summer 2011, appellant would give him stuff and would want sexual favors in return. C.S. described sexual favors as meaning oral sex where appellant would give C.S. a "blow job." (Tr. at 478.) Appellant would treat the sex act as money; appellant would keep track on a list on a computer the "chores" equating to sex acts and a money amount and would let C.S. know what he "owed" for the things appellant bought him. (Tr. at 478.) C.S. reported that for the sexual favors, appellant gave him clothes, a generic iPad, and an iPod Nano, took C.S. to a concert in Cleveland, and gave C.S. a cell phone and put C.S. on his family plan.

         {¶ 14} Sherfield testified that C.S. said the first incident occurred after appellant took C.S. to a mall, bought him shoes, clothes, and "perfume." (Tr. 479.) When they returned to appellant's house, appellant told C.S. that C.S. owed him money for the things that he bought. When C.S. told appellant he did not have any money, appellant told C.S. that he would have to give him sexual favors. C.S. then told Sherfield that appellant "put his mouth on [my] private part and sucked my dick." (Tr. at 480.) C.S. reported that this happened more than once-pretty much every weekend that he hung out with appellant. He hung out with appellant nearly every weekend of the summer. C.S. reported that appellant "wanted [him] to sperm in [appellant's] mouth" because appellant told him he likes the taste. (Tr. 485.) C.S. additionally reported to Sherfield that he sucked appellant's penis once or twice, that "[appellant] made me have sex with his butt" three times, and that appellant had a medical issue where he "can't get hard." (Tr. at 482.) C.S. said that appellant had gay porn on his iPad and that sometimes appellant would turn on pornography when they were having oral sex. C.S. denied that anyone had taken his picture without clothes on or sent him pictures of themselves without clothes.

         {¶ 15} In the interview, C.S. told Sherfield that he did not say anything back to appellant when appellant told him to do sexual acts "because he was scared and thought [appellant] would hurt him." (Tr. at 483.) C.S. denied that appellant or anyone else threatened to hurt him. C.S. reported that appellant was always cautious when he did things and smart about it to not get caught, for example, not talking over the phone about the sexual favors.

         {¶ 16} Sherfield testified that C.S. told her the last incident of sexual conduct occurred when appellant gave C.S. a blow job in a car under a bridge. C.S. expressed to Sherfield that after the incident he had a bad nightmare that appellant was going to kill him, and C.S. then told his grandmother about what had happened and she told him he was not allowed to talk to appellant anymore.

         {¶ 17} Detective Kevin Foos testified that in 2011 he served as a detective in the Franklin County juvenile division and that he was the primary investigator of C.S.'s allegation of sexual abuse against appellant in 2011. Foos spoke with the school counselors and appellant, observed C.S.'s interview at Children's Hospital, and spoke separately to C.S. Foos testified that C.S.'s description to him was consistent with his interview at Children's Hospital and with what he told school counselors. According to Foos, C.S. stated that appellant, whose date of birth is April 16, 1968, performed oral sex on C.S. around 30 times and that appellant gave him an iPad and Nano but lost them, and gave him a phone that C.S. gave away. Foos obtained a search warrant for appellant's computer and seized the computer. Before receiving the results of the computer analysis, Foos closed the case due to a lack of corroboration and transferred out of the juvenile unit in September or October 2012.

         {¶ 18} R.H. testified that his birthdate is September 17, 2002. When he was around 11 years old, R.H. would attend church with his deceased father's former partner, who introduced him to appellant. R.H. became very good friends with appellant's cousin or nephew, G.C., [1] who he thought was about his age.

         {¶ 19} From the end of the school year in 2014 through the whole summer and sometime after his 12th birthday, R.H. would go over to appellant's house to spend the night. R.H. thought appellant was a fun, cool guy; appellant bought R.H. season passes to and took him to amusement parks, bought him shirts, underwear, and expensive athletic shoes that his mom could not afford, and took him to a shopping mall and clothing stores. G.C. would go with them on the various outings. R.H. also testified that appellant gave him an iPhone and a tablet and that appellant broke the tablet when appellant got mad at R.H.

         {¶ 20} When R.H. would spend the night, R.H. would sleep on one of three beds, including appellant's bed with appellant. G.C. would sleep in the room as well in one of the smaller beds. R.H. testified that during this time, appellant was "sucking my penis." (Tr. at 345.) During the first incident, around the time school let out in June 2014, appellant and R.H. were laying on appellant's bed. G.C. left the room to take a shower, and appellant told R.H. to take off all his clothes. R.H. did so, not knowing really what to do. Appellant began sucking on R.H.'s penis, R.H. told him to stop, and appellant did so. R.H. did not know the exact number of times appellant performed oral sex on him; he testified that it occurred "around the whole summer"-"from June to September"-almost every time he went over to appellant's house, a period which lasted sometime after his birthday. (Tr. at 353-54.) R.H. would tell him to stop almost every time, but appellant would not stop, which made R.H. angry. R.H. denied that appellant touched other parts of his body.

         {¶ 21} R.H. testified that he disclosed what happened to his father's former partner, who told R.H. to tell his mom. Sometime around his 12th birthday, R.H. told his mother "that [appellant] raped me." (Tr. at 343.) According to R.H., appellant told R.H. that he had a list of other kids who he had touched. R.H. denied knowing A.Y. or C.S.

         {¶ 22} On cross-examination, R.H. agreed to remembering an incident in which his father's former partner played a pornographic DVD of men engaged in sexual activity about the time R.H. was interviewed by Children's Hospital regarding appellant. R.H. denied that his father's former partner ever had touched him or asked him to do anything of a sexual nature.

         {¶ 23} Sherfield, the Nationwide Children's Hospital social worker, testified to conducting a forensic interview with R.H. According to Sherfield, R.H. reported that appellant gave him oral sex "around 15 to 16 times" in exchange for things such as season passes to amusement parks, clothes, and an iPad. (Tr. at 457.) R.H. reported that sperm went in appellant's stomach. During the interview, R.H. told Sherfield that appellant became angry and smashed the iPad after R.H. said he could not be doing this anymore and that appellant told him to "take it to the grave." (Tr. at 461.) R.H. denied to Sherfield that appellant touched him anywhere else on his body or that R.H. touched appellant. R.H. reported seeing a list above appellant's bed entitled " 'People I Touched' with dudes' names." (Tr. at 462.)

         {¶ 24} The sexual assault nurse examiner at Nationwide Children's Hospital, Gail Horner, testified to conducting the physical examination for R.H. on November 25, 2014, and that the examination of R.H. was normal and did not reveal physical findings of trauma or sexually transmitted diseases. Horner testified that, in her experience, she would not expect any physical findings based on R.H.'s reported histories. She noted that the majority of children they see for sexual abuse show no physical findings during the exam and testified that a man putting his mouth around a boy's penis is typically not going to leave any physical findings, and touching with the hands would be even less likely than a mouth to leave any physical findings.

         {¶ 25} Detective Brian Sheline, an officer with the Columbus Division of Police assigned to investigate child sexual abuse allegations, testified to receiving information and a referral from Children Services in November 2014 about abuse concerns involving R.H. Sheline obtained a search warrant for appellant's home, and in early December 2014, went to appellant's home to attempt to speak with appellant. Appellant allowed Sheline into his bedroom, which included one adult size bed and two child size beds. Sheline produced the warrant and searched and photographed the bedroom, finding, among other items, a notebook with a list of names entitled "People That I've Touched, " "coming of age" books for young boys, and pornographic DVDs. (Tr. at 142, 144.)

         {¶ 26} In speaking with appellant, Sheline learned of the previous 2011 investigation of appellant by the Franklin County Sheriffs Office involving allegations made by C.S. Sheline contacted an investigator in the sheriffs office regarding that prior investigation and interviewed C.S. Detective Joe Schluer, an officer with the Franklin County Sheriffs Office assigned to handle juvenile sex crimes, testified he was contacted by Sheline, and Schuler submitted the computer recovered in the C.S. investigation for analysis.

         {¶ 27} Sheline obtained a warrant for appellant's arrest. Officer Charles Distelhorst of the Columbus Division of Police testified to executing the warrant at appellant's home sometime after 11:00 p.m. on May 11, 2015. According to Distelhorst, after appellant's roommate let them in the house, Distelhorst and several other officers proceeded upstairs to appellant's bedroom. As they went up the stairs, Distelhorst noticed a camera on top of appellant's bedroom door pointing down the stairs. Distelhorst knocked and opened the unlocked door. Appellant was lying on a bed under the covers, and a child of about ten years in age, A.Y., was lying on the same bed under the covers. Appellant had underwear and a t-shirt on, and A.Y. wore underwear only. A third young man in pajamas was in the room on a small bed. Appellant complied with Distelhorst's orders, and appellant was placed under arrest. A.Y. was taken to Nationwide Children's Hospital, and the officers called Sheline to meet A.Y. at the hospital.

         {¶ 28} At the hospital, Emily Combs, MS, LISW, LCSW, a forensic interviewer, interviewed A.Y. at approximately 2:00 a.m. and, shortly thereafter, wrote a report based on that interview. Her first impression of AY. was that he was possibly developmentally delayed. Combs testified that A.Y.'s medical history included a diagnosis of posttraumatic stress disorder after witnessing his mom commit suicide and was being treated with ...


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