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State v. Hines

Court of Appeals of Ohio, Twelfth District, Clermont

May 7, 2018

STATE OF OHIO, Plaintiff-Appellee,
v.
MICHAEL J. HINES, JR., Defendant-Appellant.

          CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS No. 2016CR000392

          D. 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 defendant-appellant

          OPINION

          M. POWELL, JUDGE.

         {¶ 1} Defendant-appellant, Michael J. Hines, Jr., appeals his rape conviction in the Clermont County Court of Common Pleas.

         {¶ 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 asleep.

         {¶ 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[1]:

** *
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 * * * like that

         {¶ 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 vagina.

         {¶ 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 do?
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 you.
K.B.: Well, I'm pretty sure I woke up to you fingering me while I was sleeping; is that right?
Hines: Yeah.
** *
K.B.: * * * But, [Hines], why would take advantage of me like that?
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, ...

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