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State v. Wuensch

Court of Appeals of Ohio, Eighth District, Cuyahoga

December 28, 2017


         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-604141-A

          Walter H. Edwards, Jr. ATTORNEY FOR APPELLANT

          Michael C. O'Malley Cuyahoga County Prosecutor, Jeffrey Schnatter Assistant County Prosecutor ATTORNEYS FOR APPELLEE

          BEFORE: Jones, J., Keough, A.J., and E.T. Gallagher, J.


          LARRY A. JONES, SR., J.:

         {¶1} Defendant-appellant Anthony Wuensch ("Wuensch") appeals his convictions of rape, gross sexual imposition, kidnapping with a sexual motivation specification, and underage alcohol use. The convictions were rendered after a bench trial. For the reasons that follow, we affirm.

         I. Factual and Procedural Background

         {¶2} The minor victim in this case, A.C., is Wuensch's biological niece. A.C.'s biological parents had substance abuse issues and lost custody of her when she was approximately three-and-a-half years old. After her parents lost custody of A.C., she went to live with foster parents, who adopted her when she was about six- and-a-half years old. Some of A.C.'s biological relatives, including Wuensch, maintained a relationship with A.C. and her adoptive family. Wuensch was married with children, and A.C. frequently visited with him and his family.

         {¶3} The record demonstrates that, during the relevant time period, A.C. had psychological issues. She first began treating with a psychologist, Dr. Michael Esson ("Dr. Esson"), shortly after she was adopted. As A.C. grew older, her issues intensified and included self-harm behaviors and substance abuse. In 2013, she was placed in a treatment facility after a self-cutting incident, and from January 2014 through March 2014 she participated in an intensive outpatient program. The incident giving rise to this case occurred on March 24, 2014; A.C. was 15 years old at the time. In the time frame leading up to the subject incident, A.C.'s adoptive parents were going through a divorce and A.C.'s relationship with her mother was contentious. A.C. had also recently broken up with her boyfriend.

         {¶4} On the day of the incident, A.C. and her mother had an argument. After the argument, her mother drove her to cheerleading practice. A.C. decided that she did not want to stay for the practice, however, and walked to Wuensch's house. Wuensch was home alone, and called A.C.'s mother to let her know that A.C. was there. The mother gave permission for A.C. to spend the night there and brought her a change of clothes. The mother testified that she was not aware that Wuensch was home alone, however, and that if she had known that, she would not have allowed A.C. to stay.

         {¶5} A.C. testified at trial as to the following events that occurred after her arrival at Wuensch's house. The two first talked about marital problems that Wuensch and his wife were having. Later, they went in the basement and they both were smoking cigarettes; Wuensch was drinking beer, and he gave a can to A.C, but she only drank a little of it. A.C. testified that Wuensch was consuming a large quantity of beer. She also testified that that evening was not the first time she had smoked and drank with Wuensch.

         {¶6} According to A.C, the conversation eventually turned to one about sex life, with Wuensch asking her personal questions about hers, telling her that he had not had sex in a while, and asking if she could "hook him up" with one of her friends. The two then talked about A.C.'s recent break-up with her boyfriend, and they decided that they would go "egg" his house; they left Wuensch's house sometime between 11:00 p.m. and midnight.

         {¶7} They first walked to the house of one of A.C.'s good friends. The friend came outside to talk to A.C. and Wuensch. The friend testified at trial, and told the court that Wuensch appeared to be under the influence of alcohol - he was acting "silly and out of control" - and he and A.C. were "goofing off with each other. The friend testified that A.C. and Wuensch told her of their plan to "egg" A.C.'s former boyfriend's house.

         {¶8} According to A.C, when she and Wuensch left her friend's house, they went back to Wuensch's house to get changed and get some eggs. They then left on foot to go to the former boyfriend's house. A.C. testified that while they were walking to the former boyfriend's house, Wuensch again started with conversation that was sexual and personal in nature.

         {¶9} As they neared the former boyfriend's house, Wuensch twisted his ankle, which prompted him to tell A.C. that she "owed" him. A.C. asked him what he meant, and Wuensch told her that she would have to show him her breasts for 30 seconds or give him a full body massage. A.C. testified that she figured Wuensch was being "weird" because he was intoxicated and she just "laughed it off." But Wuensch kept telling her that she "owed" him. The two then vandalized the former boyfriend's house. The boyfriend's father confirmed that his house had been vandalized, but testified that both he and his son were unaware at the time it happened of who was responsible.

         {¶10} When they arrived back at Wuensch's house, they went into the basement, and Wuensch again told A.C. that she would have to either show him her breasts or give him a full body massage. Uncomfortable, A.C. told Wuensch that she was going to go upstairs to bed. As she was walking up the stairs, Wuensch grabbed her arm and told A.C. that she was not leaving until she gave in to his demand. A.C. testified that she showed Wuensch her breasts because she felt that was the only way she could escape him, and indeed he did let her go after she had done so.

         {¶11} A.C. went upstairs into a bedroom, closed and locked the door, and proceeded to get ready for bed. While she was lying in bed, she heard Wuensch trying to get into the room; eventually he did. He got into bed with her and sexually assaulted her. A.C. testified that she was crying and begging him to stop. The assault ended after she kicked him in his groin with her knee and she was able to get away. A.C. testified that she went into the living room to sleep, and Wuensch stayed in the bedroom.

         {¶12} The following day, Wuensch told A.C. not to tell anyone about what had happened and that if she did she would never again be able to see his daughters, with whom she was very close. A.C. testified that although she spent the day at Wuensch's house, she tried to keep her distance from him. Her mother picked her up in the early evening, and although she thought about telling her what had happened, she decided not to out of fear of never seeing Wuensch's daughters again.

         {¶13} A day or two later, A.C. told the friend whom she and Wuensch had visited what happened. A.C. testified that the friend told her that she (the friend) "felt like something like that was going to happen" because Wuensch had been acting "weird" that night. A.C. told her friend not to tell anyone, and the friend testified that she did not tell anyone because she did not believe it was her place to say anything. The friend testified that, after A.C.'s disclosure, her relationship with her changed because A.C.'s behavior began to change.

         {¶14} A.C. testified that she was depressed after the incident. She engaged in self-harm behaviors because she wanted to die, and started using "hard" drugs. She admitted, however, that her behavioral, substance abuse and mental health issues predated the sexual assault.

         {¶15} A.C.'s mother testified that after March 2014, she noticed a drastic change in A.C., and asked Dr. Esson, who was counseling A.C., if he could determine why her behavior had changed so much. The mother testified that she did not believe Dr. Esson was making progress with A.C., however, so she stopped A.C.'s treatment with him and began taking her to see another psychologist, Dr. Kathleen Payne ("Dr. Payne").

         {¶16} Dr. Payne began treating A.C. in June 2014; she diagnosed her with post-traumatic stress disorder. The doctor testified that, in September 2014, A.C. told her that in March 2014, she and her mother had an argument so she went to stay with Wuensch. A.C. told Dr. Payne that Wuensch was drinking and complaining that he and his wife had not been having sex. A.C. further told the doctor that Wuensch had asked her to show him her breasts, but she did not do it. Dr. Payne consulted with colleagues after that disclosure, and ultimately decided that it was not a reportable incident. She did tell A.C.'s parents, however.

         {¶17} Dr. Payne testified that in August 2015, A.C. disclosed to her that Wuensch had raped her. A.C. told the doctor that she had not previously disclosed it because she was ashamed. She also told Dr. Payne that Wuensch told her that no one would believe her. Dr. Payne reported the disclosure the following day to the Cuyahoga County Department of Children and Family Services ("CCDCFS").

         {¶18} Dr. Payne testified that it is not uncommon for such a disclosure, especially by adolescents, to be delayed because it takes time to build trust. She also testified that A.C.'s symptoms and ...

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