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State v. Harris

Court of Appeals of Ohio, Eighth District, Cuyahoga

February 15, 2018


         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-592778-A

          ATTORNEY FOR APPELLANT Joseph V. Pagano.

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

          BEFORE: Jones, J., Keough, P.J., and Celebrezze, J.


          LARRY A. JONES, SR., J.

         {¶1} Defendant-appellant, Walter Harris ("Harris"), appeals his convictions on multiple counts related to the sexual assault of H.S. We affirm.

         I. Procedural History and Facts

         {¶2} In 2015, Harris was charged with 28 counts as follows: nine counts of rape, eight counts of kidnapping, six counts of sexual battery, four counts of gross sexual imposition, and one count of attempted rape. The counts were accompanied by various repeat violent offender and sexual motivation specifications. The date of Harris's offenses ranged from March 1, 2012 to June 2014, and the victim was his girlfriend's minor daughter.

         {¶3} The matter proceeded to trial in April 2016, but the jury was unable to reach a verdict. The case proceeded to a second jury trial in May 2016 on 27 counts because the state dismissed one count of rape prior to the second trial. The repeat violent offender and sexual motivation specifications were tried to the court.

         {¶4} The following pertinent evidence was presented at trial.

         {¶5} Harris dated H.S.'s mother. H.S. did not have a stable home life. At first, H.S. and her brother, "E.S., " lived out of state with their mother. Because Harris lived in Cleveland, H.S. would visit with her mother and brother on the weekends. H.S. subsequently lived with her grandmother, her mother in a homeless shelter, and finally with Harris and E.S.

         {¶6} Harris eventually became the legal guardian of H.S. and E.S. H.S. testified that she thought of Harris as her "father." From 2005 through 2012, H.S. lived with Harris, E.S., and Joanna Wilcox ("Wilcox"), who was dating Harris. Harris and Wilcox's relationship ended in September 2012 and Wilcox moved out. H.S. and Wilcox remained friends.

         {¶7} When H.S. was in the eighth grade, she discovered she was attracted to girls. Harris found out and was mad. H.S. testified that Harris first assaulted her when she was in the eighth grade and after Harris found out she was gay. One night, Harris called H.S. downstairs. According to H.S., there was a pornographic movie playing on the television, depicting two females. Harris grabbed H.S.'s arm, threw her down onto his bed, and touched her. H.S. testified that although she did not want Harris to be touching her in that way, she was frightened and did not feel that she was able to get away.

         {¶8} H.S. testified that the next instance occurred toward the beginning of her ninth grade school year. E.S. was at school and H.S. was on the couch. Harris approached her with his pants off and touched her. Again, H.S. was frightened but did not feel like she could leave.

         {¶9} H.S. testified that after Wilcox moved out, Harris was "lonely and wanted H.S. and E.S. to sleep in his bedroom. The siblings slept on couch cushions on the bedroom floor. During one of these nights, H.S. remembered she was at a friend's house for the evening. She returned home, fell asleep on the couch cushions, and woke up in Harris's bed without pants. Harris touched her.

         {¶10} H.S. testified that eventually Harris's assaults escalated to sexual intercourse. H.S. testified that one such occurrence took place when she was in the tenth grade, before Harris moved them from their house on East 64th Street to a house on Homer Avenue. H.S. remembered she had been sleeping on the couch because she was sick. During the night, she got up to get a drink of water; when she returned, Harris was sitting on the couch waiting for her. Harris told H.S. to come to his bedroom, where he had sex with her.

         {¶11} The sexual abuse continued after they moved to the new house. H.S. testified to another instance that occurred shortly after the move, sometime between the Thanksgiving and Christmas holidays. Harris called H.S. into his bedroom and told her that they needed to "mess around." H.S. testified that Harris grabbed her, took off her pants, turned her around, and made her have sex with him.

         {¶12} According to H.S., the last time Harris assaulted her was toward the end of 2014. She testified that Harris continuously and repeatedly raped and sexually assaulted her until the end of 2014 and would never wear a condom. Instead, Harris bought H.S. the "morning after pill." The state entered into evidence a receipt from Discount Drug Mart, dated September 12, 2014, that detailed the purchase of emergency contraceptive. The state also entered into evidence video surveillance from September 12, 2014, at the same Discount Drug Mart, that showed Harris making a purchase in the pharmacy.

         {¶13} Veronique White, a Discount Drug Mart pharmacy technician, testified that Harris was a regular customer at the pharmacy. White stated that she personally sold Harris the emergency contraceptive on two or three occasions, and that he told her that he was buying the pills for his daughter.

         {¶14} According to H.S., Harris gave her these contraceptive pills "too many times to count"; in fact, at one point Harris told H.S. that she needed to go on birth control because he was "tired" of buying her the expensive pills. H.S. told Harris that she did not want to go on birth control because she wanted to date only girls and wanted him to stop.

         {¶15} H.S. testified she was scared to tell anyone about Harris. At one point, she asked E.S. what he would do if she told him that someone was hurting her. Both H.S. and E.S. testified that E.S. got angry and told H.S. that he would "kill" anyone who hurt her. Because of this response, H.S. decided not to tell her brother about Harris.

         {¶16} H.S. finally told her girlfriend, C.R., about Harris. H.S. called C.R. after one instance of abuse. C.R. heard H.S. crying on the phone and H.S. confided in C.R. about what Harris had been doing to her. H.S. asked C.R. to keep the abuse a secret, but C.R.'s mother found out and C.R. and her mother reported the abuse to the police.

         {¶17} Cleveland Police Detective Alan Strickler was assigned to the case. H.S. told the detective that the allegations were false and to throw the case out. H.S. testified that she was scared that if she divulged the abuse, E.S. would be placed in foster care.

         {¶18} H.S. then confided in Harris's former girlfriend, Wilcox. Wilcox testified that H.S. texted her on October 15, 2014, and asked if she would make H.S. tell if someone was hurting her. Wilcox met with H.S. the next day. H.S. told Wilcox that Harris was forcing her to have sex with him. Wilcox told H.S. that she needed to tell someone right away but H.S. said she did not want to go to the police because she was afraid of Harris. According to Wilcox, H.S. thought people would believe Harris over her and feared for her brother's future.

         {¶19} Towards the end of December 2014, Harris and H.S. got into an argument over H.S.'s music. H.S. left the house and went to stay with her girlfriend, C.R., without telling Harris where she was going. H.S. called Wilcox and told her that she was finally ready to go to the police and file a report. Wilcox took H.S. to the police station.

         {¶20} Detective Cindy Bazilius ("Detective Bazilius") interviewed H.S. Detective Bazilius testified that H.S. indicated that the abuse had been going on for several years. According to Detective Bazilius, when she interviews a child victim that has been subjected to frequent abuse, she will try to get the child to focus on a few detailed incidents, rather than trying to remember every single incident. During her interview, H.S. was able to relate specific incidents of abuse to specific years in school and other major life events, rather than specific dates.

         {¶21} The police secured a search warrant for Harris's house. Detective Bazilius testified that she conducted the search with the knowledge that it was important to look for old towels and clothing in the home and particularly in Harris's bedroom, because H.S. had stated that Harris would often use towels and clothing to clean up after they had sex. Forensic testing conducted on a blue towel taken from the top of Harris's bedroom dresser contained seminal material with a DNA profile that matched Harris's. The police also took Harris's bedding into evidence and forensic testing confirmed that the bedding contained DNA from both Harris and H.S.

         {¶22} Cuyahoga County Department of Children and Family Services social worker Hope Gula ("Gula") interviewed H.S. Gula testified that in her experience as a social worker in the sex abuse unit, child sex abuse victims often delay disclosure of their abuse. Gula noted that it is common for children to be mistaken about the time elements of the abuse, especially when the abuse occurred frequently over a long period of time. Gula testified that while interviewing H.S., H.S. disclosed to her certain behaviors that Harris possessed that are typically known as "grooming behaviors" in which the level of sexual activity he subjected H.S. to was slowly increased. Gula explained that these activities were consistent with her experience with other victims of sexual abuse.

         {¶23} The jury found Harris guilty on all counts and the sexual motivation specifications. The court convicted Harris of the repeat violent offender specifications, acquitted him of the sexually violent offender specifications, and sentenced him to a total of 11 years in prison.

         {¶24} Harris now appeals, raising the following six assignments of error for our review:

I. The trial court erred by denying appellant's motion to suppress evidence in violation of his fourth and fourteenth amendment rights to the United States Constitution and Article I, Section 14 of the Ohio Constitution.
II. Appellant's constitutional rights were violated because social worker Gula was permitted to give expert testimony in violation of Evid.R. 702 and testimony that ...

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