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State v. Walters

Court of Appeals of Ohio, Ninth District, Summit

March 30, 2018



          GREGORY PRICE, Attorney at Law, for Appellant.

          SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.


          DONNA J. CARR, JUDGE.

         {¶1} Defendant-Appellant Delacey Walters appeals from the judgment of the Summit County Court of Common Pleas. This Court affirms.


         {¶2} Walters was indicted in March 2016 on eight counts of rape and four counts of gross sexual imposition. The allegations involved two eight year-old twin girls, whose mother ("Mother") was dating and living with Walters at the time. For purposes of this appeal, the twins will be referred to as "the older twin" and "the younger twin." In April 2016, a supplemental indictment was filed charging Walters with an additional count of rape and gross sexual imposition. Those allegations involved the girls' younger sister, T.C.L., who was two years old at the time. All three girls tested positive for Chlamydia, as did Walters.

         {¶3} Following a competency hearing, the trial court found the twins competent to testify at trial. The matter proceeded to a jury trial, after which the jury found Walters guilty of all counts. The trial court sentenced Walters to an aggregate sentence of life with parole eligibility after 45 years.

         {¶4} Walters has appealed, raising four assignments of error, which will be addressed out of sequence to facilitate review.




         {¶5} Walters argues in his fourth assignment of error that the guilty verdicts are against the manifest weight of the evidence. He points to inconsistencies in the girls' testimony at trial as compared to what they told various professionals about the abuse and to inconsistencies between what the girls told the different professionals.

In determining whether a criminal conviction is against the manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.

State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). "When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a 'thirteenth juror' and disagrees with the fact[-]finder's resolution of the conflicting testimony." State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982). An appellate court should exercise the power to reverse a judgment as against the manifest weight of the evidence only in exceptional cases. Otten at 340.

         {¶6} Walters was found guilty of nine counts of rape in violation of R.C. 2907.02(A)(1)(b) and five counts of gross sexual imposition in violation of R.C. 2907.05(A)(4). Four counts of rape related to the younger twin, four counts related to the older twin, and one count related to T.C.L. Two counts of gross sexual imposition were associated with each of the twins and one count was associated with T.C.L.

         {¶7} R.C. 2907.02(A)(1)(b) states that "[n]o person shall engage in sexual conduct with another who is not the spouse of the offender * * * when * * * [t]he other person is less than thirteen years of age, whether or not the offender knows the age of the other person." "'Sexual conduct' means vaginal intercourse between a male and female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal opening of another. Penetration, however slight, is sufficient to complete vaginal or anal intercourse." R.C. 2907.01(A). R.C. 2907.05(A)(4) states that "[n]o person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender * * * when * * * [t]he other person, or one of the other persons, is less than thirteen years of age, whether or not the offender knows the age of that person." R.C. 2907.01(B) provides that "'[s]exual contact' means any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing or gratifying either person."

         {¶8} In 2015, the twins and T.C.L. were living with Mother and Walters. During the latter part of the year, Walters would watch the three children when Mother worked. In November 2015, Mother called the twins' father ("Father") to tell him that the girls had indicated that someone was touching them. Father went over to the house and questioned the girls separately but they never gave him a name. Mother testified that the girls denied that Walters touched them and that Walters denied touching them. At this point, Father thought Mother was going to further address the situation.

         {¶9} Sometime in December or January, the girls reported to their aunt ("Aunt') that they were being touched. Aunt testified that the girls told her everything and seemed scared and nervous talking to Aunt and had their heads down the entire time. Aunt reported the allegations to Mother who started crying. Aunt told Mother that she had to go to the police or she would. The twins indicated that when Mother told Walters he denied the allegations and became angry. He broke a glass table and glass went everywhere. When Mother failed to report the abuse, Aunt told Father.

         {¶10} Father called the police and also took the twins to the emergency room at Akron Children's Hospital. Prior to taking the girls, he talked to them about what happened and recorded what they told him. Those recordings were played at trial. On the recordings, one of the girls reported that when Walters woke them up for school, he made them touch his private. He told them to rub his private with his hand and told them to suck his private. She indicated that it happened twice.

         {¶11} At the emergency room, on January 25, 2016, both girls were interviewed by Julia Mothersbaugh, a licensed social worker, and also underwent a medical examination. The younger twin indicated that after her Mother found out about the allegations, she asked the girls whether they wanted him to go to jail. The younger twin reported that she and the older twin slept with Walters when Mother was not home. She told Ms. Mothersbaugh that Walters made them rub his "coochie[, ]" which she indicated was his private part and made them suck it two times. She described that she would be lying down on the bed on her stomach and he would be on his back with his legs opened up. The younger twin also reported that Walters touched her "coochie" with his hand, "outside of [her] privates."

         {¶12} The older twin reported that she did not feel safe at home because of Walters. The older twin told Ms. Mothersbaugh that when her Mother found out about the allegations she asked the older twin why she told and exclaimed that Walters was going to jail. The older twin recounted that Walters touched her "on [her] cupcake with his fingers and his private parts" when Mother was at work. Ms. Mothersbaugh detailed that the older twin referred to her vagina as her "cupcake." The older twin told Ms. Mothersbaugh that the older twin's clothes would be on and he "digged in our pants." The older twin stated that Walters put his fingers in her "cupcake" two times. Walters also told her to "suck it." He then put his private parts in her mouth and "pee came out of it and she tasted it." The older twin also reported that Walters made them touch his "privates" and that Walters did the "same stuff to her twin[.]"

         {¶13} Ms. Mothersbaugh passed the information she gathered along to the director of the Children At Risk Evaluation ("CARE") Center, who recommended the girls undergo a full forensic interview and medical exam at the CARE Center. The information was also shared with the doctor who examined the girls that night. Ms. Mothersbaugh testified that she did not believe the ...

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