Court of Appeals of Ohio, Second District, Montgomery
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
SWIFT, Atty. Reg. No. 0065745, Attorney for
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
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
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 ...