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State v. Bendolph

Court of Appeals of Ohio, Second District, Montgomery

May 4, 2018

STATE OF OHIO Plaintiff-Appellee
NEEDOM BENDOLPH Defendant-Appellant

          Criminal Appeal from Common Pleas Court Trial Court Case No. 2016-CR-4043

          MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Attorney for Plaintiff-Appellee

          ANDREW C. SCHLUETER, Atty. Reg. No. 0086701, Attorney for Defendant-Appellant


          FROELICH, J.

         {¶ 1} Needom Bendolph was found guilty by a jury of two counts of rape by force and one count of felonious assault; he was sentenced to an aggregate prison term of 11 years, was designated as a Tier III sex offender, and was ordered to pay restitution. Bendolph appeals from his conviction, arguing that his trial counsel was ineffective in presenting the testimony of an expert witness without fully investigating what the content of her testimony would be and appreciating its impact on his defense.

         {¶ 2} For the following reasons, the judgment of the trial court will be affirmed.

         Facts and Procedural History

         {¶ 3} On January 16, 2017, Bendolph was indicted on two counts of rape (by force) and one count of felonious assault (serious harm). The complainant was Bendolph's girlfriend, L.G. Bendolph filed a motion to suppress evidence, which was overruled. He did not waive his right to a speedy trial. He was tried by a jury on March 20 and 21, 2017, and was found guilty of all of the offenses. The court sentenced him as described above.

         The State's Case

         {¶ 4} The State's evidence at trial was as follows:

         {¶ 5} On December 28, 2016, L.G. and Bendolph were out in the evening with some friends; L.G. was the designated driver, and she was driving someone else's car for most of the evening. Her own car was at Bendolph's mother's apartment, where the couple sometimes stayed. Later in the evening, she and Bendolph were dropped off at the apartment, got into her car, and went out a while longer. When they returned to the apartment, L.G. was driving, and Bendolph was in the passenger seat; L.G. was planning to drop Bendolph off and go to her sister's for the night.

         {¶ 6} According to L.G., when she pulled into the driveway alongside Bendolph's mother's apartment, Bendolph suddenly grabbed her car keys and began hitting her with his fists. She "call[ed] his name and he wasn't responding to [her], " and she "was begging him to stop." In the struggle, their positions became reversed, such that Bendolph was on the driver's side of the car, standing outside the door, and L.G. was half in and half out of the driver's door, lying back on the passenger seat.

         {¶ 7} Bendolph pulled L.G.'s legs toward the driver's side door and partially ripped her pants and underwear. L.G. testified that he then put his hand inside her vagina, removed it, smelled and licked his hand, and said, "[B]***h, I know you been f***ing."[1] He then performed cunnilingus on L.G., spit "all over" her, "then took out his penis and shoved it in [her]." L.G. testified that she was telling him to stop, kicking, and fighting the entire time. Bendolph was choking her, calling her names, and threatening to kill her.

         {¶ 8} After a few minutes, L.G. managed to lean her body up against the car's horn in an effort to draw attention. Several neighbors came outside. When Bendolph noticed that people were outside, he "drug" L.G. out of the car, closing her coat because "her pants and things was all exposed, " and led her to the door of his mother's apartment by the back of her neck. After Bendolph banged on the door and window for a few minutes, his mother let them into her apartment, which was on the second floor.

         {¶ 9} According to L.G., Bendolph led her up the stairs, whispering in her ear threats to kill her and telling her to be quiet, "but he was talking normal to his mother about spending the night. Bendolph led L.G. into a back bedroom, where she sat in a chair while Bendolph went to talk with his mother in another room. Bendolph's mother also came into the bedroom and talked with L.G. "for a minute." Bendolph then closed the bedroom door, pulled L.G.'s hair, and threw her onto the bed. He "started performing oral sex on [her] again at this time, " "tore [her] underwear off completely, " put his penis in L.G.'s mouth while threatening to kill her if she bit him, and then put his penis in her vagina again. Bendolph did not ejaculate.

         {¶ 10} L.G. testified that she and Bendolph "were interrupted" by a knock at the front door. Bendolph's mother answered the door, and Bendolph's brother, Floyd, entered the apartment. Bendolph briefly left the bedroom and talked with Floyd, who then followed him back into the bedroom. After greeting L.G., Floyd began to question her about what was wrong. Floyd learned that Bendolph had hit L.G., and an altercation between the two men ensued. L.G. saw an opportunity to get away and headed for the apartment door, although Bendolph still had her car keys and purse.

         {¶ 11} Bendolph pulled L.G. back into the apartment by her hair; she sat down "on the couch, in the living room, still exposed." The two men then went down the stairs and outside the apartment building. Bendolph returned, "screaming and yelling, " threatening to kill Floyd and to "get a gun." L.G. tried to calm Bendolph down, but Bendolph said, "b***h, you're the reason, " and slapped her so hard that she "fell off the couch" and "[saw] stars." When she was on the ground, Bendolph "started stomping and kicking [her] and sitting on [her]." Bendolph's mother attempted to intervene on L.G.'s behalf, telling Bendolph "don't put your hands on that girl."

         {¶ 12} Bendolph again left the apartment. L.G. got back on the couch and asked Bendolph's mother to call the police. Bendolph's mother agreed and said that she was calling the police and an ambulance. However, before any help arrived, L.G. heard her car start outside the apartment. She tried to run out to the car, but fell down the steps. When she got outside, the "car [was] taking off, " but she grabbed the handle and got in. She explained that her "entire life was in that car. Everything [she] had worked for, everything [she] owned. All of my music, microphones - he had my money, he had my purse. My entire life was pulling out of that driveway and my instinct was to protect it, so I got in the car."

         {¶ 13} In the car, Bendolph was still "ranting" about killing his brother; L.G. tried to "appease" him and calm him down. Bendolph was driving erratically. They stopped at a night club they had visited earlier in the evening with their friends. Bendolph ordered L.G. out of the car, but she was crying and said that she could not get out because she "ha[d] no clothes on" and was "exposed." Bendolph threatened to beat her with a club (the type that keeps a steering wheel locked) that was under the seat of the car.

         {¶ 14} L.G. agreed to get out and "started easing over from the passenger seat to the driver's seat"; she was attempting to pull the keys out of the car ignition. Bendolph, who had not been wearing a shirt, apparently stepped out of the car and put the club between his legs while he put on a shirt. At that point, L.G. "put that car in reverse and got the hell out of there, " knocking Bendolph to the ground in the process. She drove to a nearby gas station, where a patron and a gas station employee called the police. L.G. testified that she was bleeding and "completely exposed, " so she waited in her car for the police to arrive.

         {¶ 15} The police took L.G. to the hospital, where a sexual assault kit was completed. L.G. testified that she had "quite a few knots" on the back of her head, four fractures of the "orbital floor of her left eye, and a lot of cuts and bruises. She testified that the doctors were hoping the bones around her eye would heal without surgery, but that the healing was going slowly and was "a little more complicated" because she was a diabetic. She testified at trial that she still suffered blurred vision, bad headaches, and had trouble with her vision for nighttime driving.

         {¶ 16} L.G. was cross-examined at length about various details of her testimony, but the cross-examination did not suggest the nature of ...

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