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State v. Hartings

Court of Appeals of Ohio, Second District, Montgomery

May 25, 2018

STATE OF OHIO Plaintiff-Appellee
v.
BRIAN HARTINGS Defendant-Appellant

          T.C. NO. 2016-CR-2701 (Criminal Appeal from Common Pleas Court)

          HEATHER JANS, Atty. Reg. No 0084470, Assistant Prosecuting Attorney, 310 West Third Street, Attorney for Plaintiff-Appellee

          BEN M. SWIFT, Atty. Reg. No. 0065745, Attorney for Defendant-Appellant

          OPINION

          DONOVAN, J.

         {¶ 1} Defendant-appellant Brian Hartings appeals his conviction and sentence for one count of rape (by force or threat of force), in violation of R.C. 2907.02(A)(2), a felony of the first degree. Hartings filed a timely notice of appeal with this Court on February 21, 2017.

         {¶ 2} The incident which forms the basis for the instant appeal occurred late in the morning on August 28, 2016, when the victim, seventeen year old A.B., and her then-boyfriend, D.B., walked over to a residence located on a street in Dayton, Ohio. The residence in question belonged to D.B.'s aunt, J.B. J.B. lived in the house with the defendant, Hartings, who was her boyfriend. Hartings was forty-two years old at the time the offense occurred. J.B. and Hartings had been in a relationship for approximately twenty years and had five children together. A.B. was friends with the three youngest children of J.B. and Hartings.

         {¶ 3} On the day in question, A.B. and D.B. had an argument while walking over to J.B.'s residence. A.B. testified that upon reaching the house, they encountered Hartings sitting on the front porch smoking a cigarette. At this point, D.B. left to go and meet some friends. After D.B. left, A.B. and Hartings walked to the back porch and smoked cigarettes together. Although A.B. went to the house to visit Hartings' daughters, he told her that they were still asleep and not to wake them. A.B. testified that she did not leave at this point because D.B. would get angry with her because he did not have a cellphone with him allowing her to contact him if she were to leave.

         {¶ 4} A.B. testified that while they were sitting on the back porch, Hartings began rubbing her thighs and telling her that she was sexy. A.B. informed Hartings that he was making her uncomfortable, and he stopped. Shortly thereafter, however, Hartings began rubbing A.B.'s breasts. A.B. again told Hartings that he was making her feel uncomfortable, and she got up and went into the living room of the house. Once inside, A.B. sat down on the sofa and waited for her friends to wake up and come downstairs. Hartings followed A.B. inside the house and sat down beside her on the sofa where he began rubbing her thighs and telling her again that she was sexy. A.B. told Hartings that he was making her uncomfortable, but he did not respond.

         {¶ 5} While she was sitting in the living room, A.B. testified that she placed her cellphone on a coffee table near the sofa. Without her permission, Hartings picked up A.B.'s cellphone and went downstairs to the basement of the house. When A.B. went downstairs to retrieve her cellphone, Hartings grabbed her arm and attempted to kiss her. A.B. testified that she backed away from Hartings and told him that she felt uncomfortable. Hartings responded by "shushing her" and telling her to be quiet. Hartings then tried to kiss A.B. again and pulled her over to a pool table that was located in the basement. Once there, Hartings pushed A.B. down onto the pool table and started taking off her pants. Again, A.B. told Hartings that she was uncomfortable, and she attempted to push him off of her.

         {¶ 6} Undeterred, Hartings pulled off A.B.'s underwear and placed his penis inside her vagina. When the assault first began, A.B. was laying on her back on the pool table. At some point, Hartings turned A.B. over on her stomach and continued the sexual assault. Hartings then turned A.B. onto her back again and ejaculated on her chest. A.B. testified that Hartings did not wear a condom during the assault. When the assault was over, Hartings told A.B. "to be quiet or else she might get some more." A.B. put her clothes back on, retrieved her cellphone, and went back outside to the front porch to wait for D.B. As she left the house, A.B. said goodbye to one of Hartings' daughters who had apparently awoken. A.B. testified that while she waited for D.B. on the front porch, Hartings came outside and smoked a cigarette.

         {¶ 7} After approximately five minutes, D.B. returned, and he and A.B. left Hartings' residence on foot. A.B. and D.B. walked behind a nearby library where she told him what had occurred. D.B. immediately suggested that they walk to a nearby restaurant where his aunt, J.B., worked and tell her what happened. As the two walked to the restaurant, A.B. became aware that she had recorded a portion of the sexual assault on her cellphone. The recording contains only sound and no images of the assault. A.B. testified that she and D.B. listened to the recording before meeting J.B. At trial, the jury heard the audio portion of the phone recording which had been transferred to compact disc. State's Ex. 15-A.

         {¶ 8} A.B. testified that the recording, which lasts approximately three minutes, was made while A.B. and Hartings were in the basement on August 28, 2016. In the recording, A.B. tells Hartings several times that she "can't do this." A.B. can also be heard telling Hartings that she is very uncomfortable and that she "can't do anything" with him. A.B. also tells Hartings "no" several times, and she also asks him to "get off" of her. A.B. testified that she was unaware how the phone started recording because the screen appeared to be blank when she retrieved her phone from the basement.

         {¶ 9} A.B. and D.B. reached the restaurant at approximately 1:00 p.m. and told J.B. what had occurred. J.B. also listened to the recording on A.B.'s cellphone. At approximately 2:00 p.m., J.B. called Hartings and questioned him about the assault. J.B. testified that Hartings feigned ignorance regarding the alleged assault but sounded nervous. J.B. also told Hartings that the police had been called and were on their way to the house. J.B. left work early and went directly home to her residence. J.B. testified that when she arrived, the street had been blocked off by the police, and Hartings had barricaded himself inside the house. Hartings eventually came outside and was arrested and taken into custody. J.B. gave the police consent to search her house.

         {¶ 10} After speaking with J.B. at the restaurant, A.B. went home and told her mother that she had been sexually assaulted by Hartings. A.B.'s mother called the police and took A.B. to Dayton Children's Hospital. A.B. spoke to the police at the hospital and provided them with a written statement.

         {¶ 11} After being arrested, Hartings was transferred to the Safety Building where he was interviewed by Dayton Police Detective Joshua Spears from the Special Victim's Unit. Prior to answering any questions, Hartings was informed of his Miranda rights by Detective Spears, after which Hartings read and signed a pre-interview waiver form. Upon being questioned as to why he had been arrested, Hartings stated that someone accused him of rape, but he did not know who the accuser was. Eventually, Hartings informed Det. Spears that A.B. had accused him of raping her. Initially, Hartings denied that any contact, sexual or otherwise, took place between A.B. and himself. After Det. Spears informed him that there was a video recording of the assault, Hartings admitted that he engaged in sexual conduct with A.B., but stated that it was consensual in nature. Hartings also initially stated that A.B. took off her own pants and underwear, but he later changed his story and stated that he had removed A.B.'s pants and underwear at the same time before having sex with her. Hartings also stated that at no point did A.B. say "no" or tell him to stop.

         {¶ 12} Thereafter, on September 7, 2016, Hartings was indicted for one count of rape (by force or threat of force). At his arraignment on September 13, 2016, Hartings stood mute, and ...


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