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State v. D.H.

Court of Appeals of Ohio, Tenth District

February 13, 2018

State of Ohio, Plaintiff-Appellee,
[D.H.], Defendant-Appellant.

         APPEAL from the Franklin County Court of Common Pleas C.P.C. No. 15CR-2912

         On brief:

          Ron O'Brien, Prosecuting Attorney, and Sheryl L. Prichard, for appellee.

          Giorgianni Law LLC, and Paul Giorgianni, for appellant.


          Sheryl L. Prichard.

          Paul Giorgianni.


          BROWN, P.J.

         {¶ 1} Defendant-appellant, D.H., appeals from a judgment of conviction and sentence entered by the Franklin County Court of Common Pleas, pursuant to a jury trial, finding him guilty of two counts of rape, both felonies of the first degree. For the reasons which follow, we affirm in part, reverse in part, and remand for resentencing.

         {¶ 2} On June 15, 2015, appellant was indicted on three counts of rape, all in violation of R.C. 2907.02(A)(1)(b). Under count one, plaintiff-appellee, state of Ohio, alleged from April 8, 2006 to April 7, 2007, appellant engaged in sexual conduct, to wit: digital vaginal penetration, with S.M., who was less than 13 years of age. Count two alleged from April 8, 2006 to April 7, 2012, appellant engaged in sexual conduct, to wit: vaginal intercourse, with S.M.; count three alleged from April 8, 2006 to April 7, 2009, appellant engaged in sexual conduct, to wit: cunnilingus, with S.M.

         {¶ 3} The events giving rise to the indictment began when S.M. was eight years old. Appellant is S.M.'s biological father; he was incarcerated on unrelated charges during S.M.'s early childhood. S.M. lived with her grandparents; her mother was "in and out a lot." (Tr. Vol. II at 66.)

         {¶ 4} A jury trial on the charges commenced on May 2, 2016. S.M. explained that she first met appellant when she "just was turning 8." S.M.'s eighth birthday was April 8, 2006. After they met, S.M. and appellant began to spend time together "on the weekends." Appellant would pick S.M. "up usually on Fridays when [she] got out of school and then [they] would go over to his house." (Tr. Vol. II at 66.)

         {¶ 5} Appellant lived with his girlfriend, L.T. Appellant and L.T. were not married, but S.M. referred to L.T. as her stepmom. Appellant and L.T. had two biological daughters. L.T. noted that S.M. would frequently come over and stay for "the weekend." (Tr. Vol. III at 246.)

         {¶ 6} S.M. testified that her "dad molested [her], " as both his "penis and his mouth" touched her "vagina." (Tr. Vol. II at 69.) S.M. stated that the "[f]irst time" appellant touched her vagina she "was 8." S.M. explained that her "stepmom was there and she left the house. It was just [S.M.] and [appellant]. And [appellant] had [S.M.] come in their bedroom and had [her] lay on the bed, put a pillow over [her] face." (Tr. Vol. II at 70.) S.M. stated appellant pulled her pants down, and she then "felt his penis rubbing up against [her] vagina." (Tr. Vol. II at 73.) The prosecutor asked S.M. if appellant's penis was rubbing "[b]etween the lips of your vagina?" S.M. responded "[y]es." (Tr. Vol. II at 74.) S.M. stated that, after appellant had rubbed his penis against her vagina, "[h]e smacked [her] leg and told [her she] could get up and told [her] that he loved [her] and he would never hurt [her]." (Tr. Vol. II at 75.)

         {¶ 7} S.M. stated appellant touched her vagina with his penis in this manner, "[p]robably almost every time [she] went over" to appellant's home. (Tr. Vol. II at 70.) S.M. noted that sometimes she was "laying on [her] back, and he sometimes had [her] lay on [her] stomach, but [she] always had a pillow or something over [her] face." (Tr. Vol. II at 72.)

          {¶ 8} When S.M. was "about 9" appellant touched her vagina with his mouth. (Tr. Vol. II at 81.) S.M. explained appellant had her "come in the room like he usually did and had [her] take [her] pants off and told [her] to sit on his face." (Tr. Vol. II at 82.) S.M. did not understand what appellant meant, so she "kind of just stood there and he kind of pulled [her] over towards him." (Tr. Vol II at 84.) S.M. "got on the bed and sat on" appellant, his face "was under [her] vagina" and he "started licking" her "vagina." (Tr. Vol. II at 84-85.) Eventually appellant had her "get up, and [she] walked and went back in the living room." (Tr. Vol. II at 85.)

         {¶ 9} On cross-examination, S.M. stated that appellant also "touched [her] with his fingers." (Tr. Vol. II at 110.) On redirect-examination, S.M. explained that once at appellant's home she "was sleeping on the couch, and [she] woke up to [appellant's] hands down [her] pants." (Tr. Vol. II at 166.)

         {¶ 10} S.M. stated her weekend visits with her father continued until she "was about 11, " when her father went back to "prison." (Tr. Vol. II at 67, 96.) S.M. explained that she did not initially tell her mother or grandparents about the abuse because she "really didn't understand what happened and [she] felt embarrassed." (Tr. Vol. II at 76.) S.M. disclosed the abuse to her mother "the day before [her] 16th birthday." (Tr. Vol. II at 89.) S.M. also "told [her] stepmom" and they contacted police. (Tr. Vol. II at 90.)

         {¶ 11} S.M. wrote her father many letters after he went to prison in 2009. S.M. explained after police were involved, she wrote one letter to her father asking him "why he did those things to me." (Tr. Vol. II at 98.) In that letter, admitted as State's Exhibit A-1, S.M. asked appellant to "tell me the truth. Why would you have me come in the room and put a pillow over my head and [touch] me. I just don't understand why you would do [those] thing[s] to me." S.M. stated that she would "love to get a real sorry and why you would do that to me so I can move on with myself." (State's Ex. A-1.)

         {¶ 12} S.M. confirmed she sent State's Exhibit A-1 to appellant, and stated she received a response from him "[p]robably about two weeks" later. (Tr. Vol. II at 102.) S.M. identified State's Exhibit A-2 as the "letter, he wrote me back." (Tr. Vol. II at 103.) State's Exhibit A-2 states, "I love you and I'm not mad about nothing! I wish you didn't feel the way you do! I don't remember a lot of things because I was always drinking! I am sorry if I have ever made you feel any type of way." Appellant states in the letter he will never "drink or smoke again" because "[p]eople do shit they don't remember like crimes, sex, and other drugs, " and tells S.M. that she can "talk to [him] about anything in the world. Some things just don't need to be said around other people, ya know?" (State's Ex. A-2.)

         {¶ 13} Emily Combes, a forensic interviewer at the children's advocacy center at Nationwide Children's Hospital, stated that she interviewed S.M. on June 19, 2014. S.M. informed Combes "that her father had abused her, " and that it "started when she was 8 and it ended when she was 11." (Tr. Vol. II at 212-13.) Combes noted that S.M. told her appellant "had digitally penetrated her when she was 8, * * * that he had rubbed his penis against her vagina when she was 8, and that he had performed oral sex on her when she was 9 or 10 years old." (Tr. Vol. II at 213.)

         {¶ 14} Gail Horner, a pediatric nurse practitioner at the children's advocacy center, examined S.M. on June 19, 2014. Horner explained that, because the abuse occurred several years before the exam, she did not perform any evidence collection. Horner conducted an anogenital examination of S.M., which revealed "a nonacute disruption or a deep notch in her hymen, " consistent "with penetration." (Tr. Vol. III at 317, 318.) However, at the time of the exam, S.M. "was also consensually-sexually active at 16-years-old, " and Horner noted that the "notch in her hymen could have been from consensual sex." (Tr. Vol. III at 314, 318.) Horner testified that S.M. had "disclosed digital genital contact, his finger in her vagina. She described genital-to-genital contact, him rubbing his penis on her vagina, not penetration. She did not describe his penis going inside her vagina. And she also described oral-genital contact, his mouth to her vagina." (Tr. Vol. III at 313-14.)

         {¶ 15} After Horner's testimony, the state rested. Appellant moved for an acquittal on all three counts. The trial court denied the motion.

         {¶ 16} Appellant called the lead detective on the case, Jason Sprague, to testify. Detective Sprague stated that he went to Ross Correctional Facility where appellant was incarcerated and spoke with appellant about S.M.'s allegations. Detective Sprague affirmed that appellant voluntarily agreed to speak with him at the prison.

         {¶ 17} Detective Sprague stated he discussed with L.T. and S.M. the possibility of S.M. writing a letter to appellant confronting him about the abuse. Defense counsel asked Detective Sprague if, when he went to speak with appellant at the prison, he checked with prison administration to see if they recorded when a particular inmate received mail. Detective Sprague admitted that he "did not" ask that question, and that he was "not familiar with [the prison's] mail procedures" or "how much they document or don't document." (Tr. Vol. III at 371.)

         {¶ 18} Appellant testified in his own defense. Appellant explained to the jury he was currently incarcerated for "[aggravated robbery, aggravated burglary and weapons under disability, " and that he had been incarcerated for these crimes since "2009." (Tr. Vol. III at 374, 385.)

         {¶ 19} Appellant explained that, shortly after S.M.'s mother became pregnant with S.M. in 1997, he "ended up going to prison for a case [he] caught." (Tr. Vol. III at 374.) Appellant served "[a]lmost seven years" on those previous charges, and was released in 2004. (Tr. Vol. III at 375.) Upon his release, appellant "went and introduced [himself] to [S.M.] because [he] had never seen her before." (Tr. Vol. III at 375.)

         {¶ 20} "At first [appellant] didn't have a driver's license so [his] friend would take [him] over" to S.M.'s grandparent's home so he could see her. (Tr. Vol. III at 376-77.) Appellant obtained a driver's license in October 2004, and his visits with S.M. became "more frequent." (Tr. Vol. III at 377.) Around 2005, appellant met L.T. Appellant ultimately "moved into a condo" with L.T., and began "trying to do the family thing." (Tr. Vol. III at 382-83.) Appellant noted that he would pick S.M. up for their weekend visits, and they would do things like "watch movies, go swimming, go to the park, go camping on the weekend." (Tr. Vol. III at 383-84.) Appellant explained his visits with S.M. continued "[u]ntil [he] was incarcerated again, " on "2009, April 29." (Tr. Vol. III at 385.)

         {¶ 21} Appellant broke up with L.T. at the end of 2013 when he found out "she was letting [S.M.] stay at the house with her 22-year-old boyfriend." (Tr. Vol. III at 388.) Appellant noted that he was upset when he learned of S.M.'s much older boyfriend. When the detective came to the prison and asked appellant, "[i]s there any reason you can think of that [S.M.] could be making this up?" appellant responded "I can't think of anything, " but then added S.M. might have made the allegations up because he "was threatening her boyfriend." (Tr. Vol. III at 396.)

         {¶ 22} Appellant denied ever receiving State's Exhibit A-1. Appellant admitted he wrote State's Exhibit A-2, but asserted that the letter was not written in response to State's Exhibit A-1, and was just "one of the many letters [he] wrote [his] daughter." (Tr. Vol. III at 390.)

         {¶ 23} Appellant denied all of the allegations in the indictment. Appellant noted from April 2009 to April 2012, a portion of the time span alleged in count two, he was "[i]ncarcerated." (Tr. Vol. III at 392.) Appellant told the jury that S.M. had lied. (See Tr. Vol. III at 399.)

         {¶ 24} On May 6, 2016, the jury returned verdicts of guilty on count two and count three, and a ...

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