Court of Appeals of Ohio, Twelfth District, Clermont
CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
Vincent Faris, Clermont County Prosecuting Attorney, Nicholas
A. Horton, 76 South Riverside Drive, 2nd Floor, Batavia, OH
45103, for plaintiff-appellee
Flanagan Lieberman Hoffman & Swaim, Richard Hempfling, 15
West Fourth Street, Suite 100, Dayton, Ohio 45402, for
1} Defendant-appellant, Michael J. Hines, Jr.,
appeals his rape conviction in the Clermont County Court of
2} On June 30, 2016, the Clermont County Grand Jury
returned a three-count indictment charging Hines with
first-degree felony rape in violation of R.C.
2907.02(A)(1)(c), first-degree felony rape in violation of
R.C. 2907.02(A)(2), and third-degree felony sexual battery in
violation of R.C. 2907.03(A)(2). On March 27, 2017, the state
dismissed the sexual battery charge. The case proceeded to a
three-day jury trial beginning on March 28, 2017.
3} The complainant, K.B., testified that on the
evening of March 11, 2016, she went to a bowling alley with
her boyfriend, Brian, her friend Rachel, Rachel's
boyfriend Eric, and her friend JD. K.B. stated the group
bowled for a couple of hours. The group consumed alcoholic
beverages inside the bowling alley and would periodically
make trips to Rachel's car where the group finished a
bottle of vodka. After bowling, the group went to a Clermont
County bar, where Hines met up with the group. K.B. knew
Hines through her friends Eric and Rachel, who managed the
restaurant where Hines was employed as a cook. K.B. stated
she was friendly with Hines and gave him a hug when he
arrived. While at the bar, K.B. talked to Hines, but was not
flirtatious. Around 1:00 a.m., the group left the bar and
went to Rachel's apartment, which was about a mile away
from the bar.
4} An argument ensued between K.B. and Brian,
prompting Brian to take a taxi home. K.B. stayed at
Rachel's apartment. Shortly after arriving at the
apartment, Rachel and Eric went to bed in Rachel's
bedroom and JD fell asleep on the living room couch. K.B. and
Hines stepped outside to smoke a cigarette. While outside,
Hines consoled K.B. about her argument with Brian and told
her she was beautiful. Hines leaned in to kiss K.B. K.B. told
him to stop and pushed him away. K.B. then went to bed in
Rachel's children's bedroom. Shortly after, Hines
entered the children's room, claimed he could not sleep
in the living room due to JD's snoring, and asked if he
could sleep in the children's bedroom. K.B. agreed so
long as Hines slept on the floor. Hines agreed and went to
sleep on the floor, while K.B. slept in the bed.
5} At approximately 4:00 a.m., K.B. awoke to a sharp
pain inside her vagina. K.B. noticed her dress had been
pulled up and her tights had been pulled down below her
buttocks. K.B. realized Hines was now laying behind her with
his fingers inside her vagina. K.B. asked Hines what he was
doing and told him to get off. Hines continued and K.B. again
told him to stop and pushed him away. K.B. again asked Hines
what he was doing. Hines stated, "[K.B.], I fucked up,
I'm sorry." Hines returned to sleep on the floor.
Although in a state of shock, K.B. eventually fell back
6} The next morning, K.B. placed the clothing she
wore the night before into a plastic grocery bag. She then
went to her college class where she sent text messages to
Rachel about what had transpired between her and Hines.
Rachel then contacted Hines via text message. As pertinent to
the issues raised in this appeal, the following text message
exchange occurred between Rachel and Hines:
Hines: I'm sorry I fucked up I said what the fuck to my
self this morning I was fucked up I won't come around No
more I apologize to you and [K.B.] lost good friends.
Rachel: Why would u think its ok to finger [K.B.] while she
is sleeping after she told u over and over that she isnt into
u like that?
Rachel: And in my kids bed? I mean seriously?
Hines: I wasn't thinking honestly I was drunk and I
fucked up I wouldn't ever do anything like this I feel
like a piece of shit I apologize for disrespecting u * * *
7} Later that day, Rachel accompanied K.B. to the
police station to file a report of the incident with Hines.
K.B. provided the police with the grocery bag containing her
clothes. Officer Keith Puckett of the Union Township Police
Department submitted the clothing to the Ohio Bureau of
Criminal Investigation ("BCI") for DNA testing. The
testing revealed Y-STR DNA on the inside of K.B.'s tights
and that Hines could not be excluded as a source. The BCI
examiner testified she would have to test 38 people before
she expected to find another match.
8} Next, K.B. went to the hospital where she was
examined by a registered nurse employed by SANE of Butler
County. The nurse testified that the examination yielded no
DNA other than K.B.'s and K.B.'s vagina showed no
signs of tearing. The nurse explained that finding no injury
from a sexual assault is not uncommon because the vaginal
area is elastic and can stretch. The nurse stated that K.B.
did not immediately disclose digital penetration, which she
noted on an intake form. However, once K.B. felt more
comfortable she disclosed Hines inserted his fingers in her
9} A few days later, at the request of the police,
K.B. conducted a recorded controlled phone call with Hines,
which the state played during trial. The controlled phone
call contained, in relevant part, the following discussion
between K.B. and Hines:
* * *
K.B.: * * * Well, [Hines], I really want to just put this all
behind me, but I really * * * I need you to tell me what
happened Friday night.
Hines: I * * * was pretty drunk.
K.B.: Okay, but what * * * did you do?
Hines: * * * I don't know. I * * * tried to get with you.
K.B.: Okay. But what do you mean by that? Like, what did you
Hines: I was fucking with you while you were sleeping.
KB.: * * * what do you mean by you were fucking with me while
I was sleeping?
Hines: I * * * mean I don't know what you want me to tell
K.B.: Well, I'm pretty sure I woke up to you fingering me
while I was sleeping; is that right?
K.B.: * * * But, [Hines], why would take advantage of me like
Hines: I - I'm sorry. I -
K.B.: You tried to kiss me * * * at the start of the night,
and I pushed you away and told you no, so why would you try
to do something especially while I'm sleeping?
Hines: I understand. * * * I fucked up. I mean * * * I
don't know why I did it. I really apologize though. Like,
that's not me. You know what I mean? Like, I wouldn't
want to do that to you. Because, like, ...