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State v. Dewees

Court of Appeals of Ohio, Eleventh District, Trumbull

April 30, 2018

STATE OF OHIO, Plaintiff-Appellee,
DONALD WILLIAM DEWEES, Defendant-Appellant.

          Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2015 CR 00610. Judgment: Affirmed.

          Dennis Watkins, Trumbull County Prosecutor, Gabriel M. Wildman and Ashleigh Musick, Assistant Prosecutors, (For Plaintiff-Appellee).

          Michael A. Partlow, (For Defendant-Appellant).


          DIANE V. GRENDELL, J.

         {¶1} Defendant-appellant, Donald W. DeWees, appeals his convictions and sentences following a jury trial in the Trumbull County Court of Common Pleas for Attempted Rape and Kidnapping. The issues before this court are whether charges for Kidnapping and Attempted Rape merge where the victim has been moved to a secretive confinement before the attempt is made to avoid detection and whether the victim's alcoholism renders her testimony unbelievable where it is inherently more probable than the defendant's version. For the following reasons, we affirm the decision of the court below.

         {¶2} On September 12, 2016, the Trumbull County Grand Jury indicted DeWees for Attempted Rape (Count 1), a felony of the second degree in violation of R.C. 2923.02(A) and 2907.02(A)(2) and (B), and Kidnapping (Count 2), a felony of the first degree in violation of R.C. 2905.01(A)(4) and (C)(1).

         {¶3} On September 15, 2016, DeWees was arraigned and entered pleas of not guilty.

         {¶4} On February 27 and 28, 2017, the case was tried before a jury at which the following testimony was given:

         {¶5} A.G.L. testified that she dated DeWees for about three and a half years until November 2015, and that they remained friends thereafter.

         {¶6} On August 5, 2016, A.G.L. made plans to spend the day fishing with a new boyfriend, Daniel Pigg, at a canoe livery located within walking distance of her home on East Jay Street in Newton Falls. A.G.L. arrived at the livery at about 4:00 p.m. Aware of her plans for the day, DeWees arrived next at the livery with a cooler of beer which they began drinking. Pigg arrived within a half-hour and the three engaged in casual conversation.

         {¶7} DeWees began asking questions about A.G.L. and Pigg's relationship and then insulting A.G.L. A.G.L. described the situation as awkward and she wanted to leave.

         {¶8} At about 6:00 p.m., A.G.L. left the livery having made arrangements via text-messaging to meet Pigg later to go camping. She went home to pack some camping gear in a book bag and walked back to a paved trail (the Newton Falls Trail) leading to the campsite.

         {¶9} As she emerged from a tunnel passing underneath railroad track, DeWees confronted her, calling her a "cheat" and a "liar" among other things, and they began to argue. DeWees grabbed A.G.L. by the hair and neck and dragged her up an incline about five or six feet from the trail. DeWees pushed A.G.L. to the ground on her back and said that he wanted to have his way with her before Pigg did. DeWees sat on her and started to tear her clothes off. A.G.L. resisted and DeWees punched her several times in the face. DeWees took off her clothes (a tank top, boxers, and "boy shorts") only leaving her bra on. DeWees then stood up and A.G.L. kicked him hard in the groin. DeWees went to the ground coughing.

         {¶10} A.G.L. was able to run back to the paved trail where she grabbed a towel from her bookbag to cover herself. A.G.L. continued running back to her home on Jay Street with DeWees following her on a bicycle. At the house, she met Norman Reese, who also resides at that address, and called 911. A recording of the 911 call was played for the jury on which A.G.L. told the dispatcher that DeWees "hit me several times in the head and tried to rape me." A.G.L. had a laceration on the side of her head, a bruised lip, and a swollen face. There were other visible marks and injuries on her neck and back.

         {¶11} On cross-examination, A.G.L. admitted she was an alcoholic and had drunk about eight beers during the course of the day on August 5. The defense also impeached A.G.L. with letters she had written indicating that, contrary to her testimony on direct, she was still involved with DeWees in December of 2015.

         {¶12} Daniel Pigg testified that he arrived at the canoe livery on August 5, 2016, around 5:00 p.m. after leaving work for the day. He drank about three beers before DeWees became upset and began verbally abusing A.G.L. A.G.L. said she did not have to take this and left. Pigg also left on the pretext that he was going to buy more beer. Instead, he went home to get camping gear and meet A.G.L. later that evening.

         {¶13} Pigg reached the campsite at approximately 9:00 p.m. After waiting about forty-five minutes for A.G.L. to arrive, he called her but she did not answer. He called her a second time and she answered while running back to her home. She was crying and emotional and told him that DeWees had just beat her up and tried to rape her. Pigg could hear DeWees in the background yelling that he did not do anything.

         {¶14} Norman J. Reese testified that, in August 2016, he was living on East Jay Street with A.G.L., who was helping him take care of himself following a stroke. At about 10:00 p.m. that evening, A.G.L. came banging on the door (it was locked), crying and dirty. A.G.L. was screaming at someone on a bicycle and he was hollering back. When asked, A.G.L. said that DeWees had beat her up and tried to rape her.

         {¶15} Adam C. Gilger of the Newton Falls Police Department was dispatched to A.G.L's home on August 5, 2016. Gilger took a verbal statement from A.G.L. but deferred taking a written statement until the next day since she appeared intoxicated. That evening, Gilger searched the trail by the tunnel for A.G.L's clothes but did not find anything.

         {¶16} Sergeant Steven Storm of the Newton Falls Police Department executed the warrant for DeWees' arrest on August 9, 2016. After being taken into custody, DeWees stated that he, A.G.L., and Pigg had been drinking at the canoe livery. A.G.L. and Pigg left and did not return. DeWees said he eventually left also on his bicycle and came upon A.G.L. and Pigg having sex by the railroad tunnel. ...

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