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State v. Tell

Court of Appeals of Ohio, Eleventh District, Portage

May 14, 2018

STATE OF OHIO, Plaintiff-Appellee,
v.
WILLIAM TELL, III, Defendant-Appellant.

          Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2016 CR 00646.

          Victor V. Vigluicci, Portage County Prosecutor, and Kristina Reilly, Assistant Prosecutor (For Plaintiff-Appellee).

          Neil P. Agarwal, (For Defendant-Appellant).

          OPINION

          DIANE V. GRENDELL, J.

         {¶1} Defendant-appellant, William Tell, III, appeals his conviction and sentence for Rape, following a jury trial in the Portage County Court of Common Pleas. The issues before this court are whether victim impact evidence is admissible in a trial for Rape where the determinative issue is whether the sexual intercourse between the defendant and the victim was consensual or coerced; whether a conviction for Rape is against the manifest weight of the evidence where the victim's credibility is the primary evidence of guilt and her testimony contains some statements which are equivocal; and whether a trial court commits reversible error by not notifying a defendant at sentencing that he is not to ingest drugs and must submit to random drug testing. For the following reasons, we affirm Tell's conviction and sentence.

         {¶2} On September 9, 2016, the Portage County Grand Jury indicted Tell on a single count of Rape, a felony of the first degree in violation of R.C. 2907.02(A)(2).

         {¶3} On September 23, 2016, Tell was arraigned and entered a plea of not guilty.

         {¶4} On April 19, 2017, Tell's case was tried before a jury. The following testimony was given:

         {¶5} Zachary Weiner testified that, in March 2016, he was living in an apartment at 927 South Water Street in Kent, Ohio, and that L.T. was a roommate. On the evening of March 4, he was spending the night in Cleveland Heights.

         {¶6} At about four in the morning (March 5), Weiner received a call from a very emotional and upset L.T. who claimed she had been raped. Weiner contacted the Kent Police Department and drove back to Kent, which took about 40 to 45 minutes. He met L.T. at the apartment where police were conducting an investigation. He then drove her to a hospital in Akron to be examined.

         {¶7} Weiner testified that L.T. was "devastated" by the incident and never returned to live at the apartment.

         {¶8} Officer Dominic Poe of the Kent Police Department, on the night in question, responded to a reported rape at the Water Street apartment. He met L.T., who he described as crying and upset with makeup smeared on her face. She provided a description of the suspect and narrated the events of the evening. Officer Poe took pictures of L.T. and the apartment.

         {¶9} Maurina Wagner, on March 5, 2016, was working as a Sexual Assault Nurse Examiner (SANE) at Akron General Hospital and conducted an examination of L.T. Wagner noted swelling, discoloration, and "tenderness with palpation" to her neck and a "linear abrasion on the left side of her labia majora and tenderness when it was palpated and swabbed." Wagner explained that such an abrasion may be caused by a lack of lubrication even during consensual intercourse and L.T. reported having consensual intercourse on March 3.

         {¶10} Detective Karen Travis of the Kent Police Department was assigned to investigate L.T.'s case. Tell was identified as the suspect in the course of the investigation. Tell admitted engaging in intercourse with L.T. on the evening in question but maintained that it was consensual.

         {¶11} Detective Travis testified as follows regarding L.T.'s phone records. At 2:08 a.m., she received a call from Tell. At 2:55 a.m., she called a friend, Colton McQuen, who did not answer. At 2:56 a.m., she received another call from Tell. Between 4:00 and 4:31 a.m., L.T. called McQuen three more times. Again, McQuen did not answer. At 4:37 a.m., she called Weiner.

         {¶12} Beginning at 2:51 a.m., L.T. and McQuen texted each other. L.T.'s final text to McQuen, sent at an undetermined time, stated: "Can u for real call me I was just raped."

         {¶13} L.T., a student at Kent State University, testified that, on the evening of March 4, 2016, she had been drinking with friends in downtown Kent. Early the next morning, she began the ten-minute walk to her apartment. As she was walking, she was joined by Tell, whom she had not met previously. As they walked they made small talk ...


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