from Allen County Common Pleas Court Trial Court No. CR 2015
Vender for Appellant
L. Kohlrieser for Appellee
Defendant-appellant Brooks D. Howton ("Howton")
appeals the judgment of the Allen County Court of Common
Pleas, alleging (1) that the trial court erred in finding
that the offenses of rape and kidnapping in this case were
not allied offenses subject to merger, (2) that the trial
court erred in allowing the State to call rebuttal witnesses
who were not disclosed before trial, and (3) that he received
ineffective assistance of counsel at trial. For the reasons
set forth below, the judgment of the lower court is affirmed.
and Procedural History
On August 7, 2015, AD woke up at 7:28 a.m. to the sound of
Howton knocking on her bedroom window. Doc. 144 at 200.
Though AD lived with her mother, Darcie Simpson
("Simpson"), AD was alone in her house on this
morning because Simpson was away at work. Id. At
this time, AD and Howton were dating and had a sexual
relationship. Id. at 199. Howton occasionally stayed
overnight at Simpson's house in AD's room, but he did
not live there. Id. at 203. From outside the window,
Howton asked AD to let him inside the house, and she promptly
unlocked her door and let him in the house. Id.
Once he was inside, AD began to walk towards her bedroom
because she wanted to go back to sleep. Id. at 272.
She did not invite Howton to come with her into the bedroom.
Id. As she was walking, Howton began questioning her
about why she did not answer her phone when he had called her
earlier. Id. at 273. He then questioned her about
whether she was communicating with other men and wanted to
check her phone. Id. at 274. AD did not allow him to
go through her phone, left the room, entered the kitchen, and
began doing dishes. Id. at 278. Howton followed AD
into the kitchen and "kept bumping into [her]" from
behind before he "bear hugged [her]." Id.
at 279. At this point, AD pushed him away from her, told him
to "leave [her] alone, " and walked back into the
living room. Id. at 283-284, 287. Howton then
followed AD into the living room and sat on AD's lap.
Id. at 287. At this point, Howton grabbed AD by her
wrists, pulled her up from where she was sitting, and began
pushing her through the house towards the bedroom.
Id. . at 289.
Once they reached the bedroom, Howton pushed AD onto the bed,
began to undress her, and took off all of her clothing.
Id. at 206. While he was holding her down on the
bed, he grabbed a vibrator that was in the bedroom and
forcibly thrust it into AD's vaginal cavity, pushing so
hard that AD "jumped." Id. at 208-209.
After this, Howton asked AD to perform fellatio on him.
Id. at 209-210. When AD refused, he accused her of
engaging in such activity with other men. Id. at
210. AD then struck him with her fist in an attempt to get
him off of her. Id. at 211. In response, Howton put
his arm around AD's neck and began to choke her.
Id. AD struggled against Howton until she passed
out. Id. at 212. When she regained consciousness,
Howton then picked AD up by her neck, lifted her up, and
choked her again until she lost consciousness a second time.
Id. at 213. When AD regained consciousness this
time, she was on the floor beside the bed; her nose was
bleeding; and she was out of breath. Id. She begged
Howton to let her get her inhaler from her purse, but he did
not allow her to do so and began slapping her. Id.
at 213-214. AD's nose continued to bleed, and she reached
for a tee shirt to wipe the blood from her face. Id.
At this point, Howton said, "I'm going to leave
'cause I know you're going to call the police on
me." Id. at 302. As he was leaving, however, he
noticed that some blood had gotten on his shoes. Id.
at 302-303. Howton then ordered AD to start the washing
machine to remove traces of the blood from the bedding and
his shoes. Id. at 215-216, 306. After the washing
machine had been started, Howton began apologizing to AD and
asked her to come into the living room with him. Id.
at 308. Once they were in the living room, AD sat down on the
floor and said, "I don't want you touching me. * * *
I want to be by myself. I don't want to do anything with
you." Id. at 310. Howton then spread out a
comforter on the floor of the living room and told AD to lay
down with him on the comforter. Id. . at 218, 310.
When AD refused, Howton began undressing AD, put his arm
around her, and pulled her to the floor. Id. at 219.
During his testimony, Howton estimated that the time period
between their struggle in the bedroom and this interaction in
the living room could have been up to an hour. Doc. 145 at
597. During this process, AD was crying, and Howton told her
to stop sobbing. Doc. 144 at 218-219. Howton then performed
oral sex on her and then engaged in phallic penetration of
her vaginal cavity. Id. at 219-220, 313.
About ten minutes later, Howton fell asleep. Id. at
315. AD then sat up, which awakened Howton. He said,
"[N]o, lay back down; lay back down." Id.
at 315. AD said, in response, "I got to pee."
Id. AD then went into the restroom, locked the door,
and climbed out of the bathroom window. Id. at 316.
She then went to a neighbor's house and called for help.
Id. at 328. When the police arrived, AD told them
that Howton was in her house. Id. at 332. The police
knocked on the front door of AD's house, which was
locked, and requested entry, but no one answered. Doc. 143 at
151. In between 11:00 and 11:30 that morning, Simpson, who
was at work, was contacted by her sister over the phone and
told what had happened to AD. Id. at 186. Simpson
drove home and gave the police a key to the house.
Id. at 189. The police were then able to gain entry
into the house, found Howton in AD's bedroom, and
arrested him without incident. Id. at 155-156. Doc.
144 at 335.
On September 17, 2015, Howton was charged with one count of
aggravated burglary in violation of R.C. 2911.11(A)(1),
2911.11(B); one count of kidnapping in violation of R.C.
2905.01(A)(4), 2905.01(C)(1); one count of felonious assault
in violation of R.C. 2903.11(A)(1), 2903.11(D)(1)(a); two
counts of rape in violation of R.C. 2907.02(A)(2),
2907.02(B); and one count of tampering with evidence in
violation of R.C. 2921.12(A)(1), 2921.12(B). Doc. 3. The
sixth count, which charged Howton with tampering with
evidence, was later dismissed on the motion of the
prosecution. Doc. 143 at 1.
The trial occurred in between April 26, 2016, and May 3,
2016. During trial, Howton chose to testify as part of the
Defense's case-in-chief. Doc. 145 at 559. In his
testimony, Howton claimed that the sexual encounters between
him and AD were consensual. Id. at 576-577. He
alleged that, during one of these encounters in the bedroom,
AD indicated to him that she wanted him to stop. Id.
at 583. He claimed that he, in response, stopped and,
admitting that he was "lightweight intoxicated, "
began to taunt her mildly. Id. at 583-584. He then
testified that AD hit him in the face but admitted that he
choked her as retaliation before pushing her onto the bed and
smacking her several times. Id. at 588.
In reference to this altercation, the following exchange took
place between Howton's defense counsel and Howton at
Q. Okay. Did everything stop as far as any sort of her trying
to come at you or anything? Did that all stop?
A. After her nose started bleeding she sat on the bed. The
bed had a couple of blood drops on it, which is her bed,
closer to the south most part of the house.
A. Okay. She sat on the bed. She cried a little bit. I talked
to her to let her know that I was tired of her putting her
hands on me and stuff. She stayed in there for a little bit.
Like I said, I told her I was about to leave because I felt
like she made me, she forced this on herself.
A. I felt like she made me get out of my character
and, you know, put my hands on her after she put her hands on
added.) Id. at 593-594. Howton testified on direct
examination that he apologized to AD. He described this
conversation at trial, saying,
A. But I was also explaining to her that over and over and
over we had had this type of situation.
A. Which ultimately I'm the one always getting hit.
I'm always getting-I'm the one always getting
smacked. I'm the one always getting punched. I mean-so
this-it wasn't-I don't think it was avoidable, but I
started letting her know, like, you know, 'I'm sorry
for doing that, but I told you that you needed to stop.'
Q. Now, why do you think-why do you think it should have been
avoidable? Do you mean on your part?
A. Yea, it should have been avoidable on my part because,
like my family said, man, you know, I complained about this
the whole time. I should have done left.
Q. Should you have had more self-control even though you were
A. Yea, I should have had more self-control because I'm a
man and, you know, I don't feel like it's right
for a man to hit a woman. But-
Q. Is that why you were apologizing?
A. Yes, sir.
(Emphasis added.) Id. at 596-597. Howton then
alleged that they had consensual "make-up sex" in
the living room after his apology. Id. at 598.
Howton's defense counsel then began questioning Howton
about the subsequent police investigation.
Q. Okay. Well, when you were talking to Detective Neidemire,
again, you were asking about ...