from the Franklin County Court of Common Pleas C.P.C. No.
O'Brien, Prosecuting Attorney, and Valerie B. Swanson,
J. Rigg, for appellant.
1} Defendant-appellant, Levone Winston, appeals from
a judgment of the Franklin County Court of Common Pleas
finding him guilty of three counts of rape with firearm
specifications, two counts of attempted rape with firearm
specifications, and kidnapping with a firearm specification.
For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
2} The Franklin County Grand Jury indicted appellant
on 11 criminal charges in April 2014. Counts 1 and 2 of the
indictment charged appellant with kidnapping. Counts 3 and 8
of the indictment charged appellant with aggravated robbery.
Counts 4, 5, 6, 7, and 11 of the indictment charged appellant
with five separate counts of rape. In Counts 9 and 10 of the
indictment, appellant was charged with two separate counts of
attempted rape. A three-year firearm specification
accompanied each of the 11 counts. A jury trial was held from
July 25, through 29, 2016.
3} During the trial, the victims, A.B. and her
boyfriend T.F., testified that on October 22, 2012, at
approximately 11:00 p.m., they were walking to their car when
two men ran up to them and ordered them to "give me what
you have." (Tr. at 78.) One man ran up to A.B., who was
near the passenger door, and the other ran up to T.F., who
was on the driver's side. Both offenders had firearms.
The man near A.B. pushed her to the ground and searched her
to see if she had anything of value. The man who approached
T.F. hit him in the face with a gun and asked him if he had
any money. T.F. said that the offenders threatened to kill
him. They told him not to look at them, and they took his
shoes off. He then saw that one of the offenders "was
taking off [A.B.'s] shirt or grabbing her, you know, kind
of grabbing by her shirt and I just kind of heard her like
resisting." (Tr. at 191.) Shortly thereafter, the man
left T.F. and came over to A.B., where he and the other
offender proceeded to take off her clothes. T.F. used that
opportunity to run away. A.B. heard one offender yell at the
other to shoot T.F. as he ran away, but no shots were fired.
T.F. ran to an apartment complex and started banging on doors
trying to get someone to help. Eventually, a resident let him
in, and the police were called.
4} After T.F. fled, A.B. was drug by her hair to a
grassy area, and the rest of her clothes were removed. The
first offender made A.B. get on her knees and perform
fellatio. The second offender also had her perform fellatio
on him. She was then switched back to performing fellatio on
the first offender. Next, the offenders took A.B. over to a
stairwell at the apartment building across the street. A.B.
was completely naked when she was taken by the hair with a
gun on top of her head over to that stairwell. When A.B. got
over there, the two offenders made her perform fellatio on
each of them again.
5} After performing fellatio, the offenders made
A.B. stand against the wall. They had her spit on their
penises and they took turns trying to put their penises
inside of her vagina, but were unsuccessful. One of the
offenders then took their gun and was rubbing it around
A.B.'s vaginal and rectal area. When the offenders were
unable to penetrate A.B.'s vagina, they switched back to
making her perform fellatio where, again, each offender took
a turn. After A.B. performed the fellatio this final time,
one of the offenders urinated on her leg.
6} After A.B. was urinated on, one of the offenders
became nervous and urged the other offender to leave, then
fled himself. At this time, the remaining offender grabbed
A.B. by her hair and took her out to the grassy area in the
middle of the apartment complex. He ordered her to turn
around. A.B. then heard two gunshots. She thought she was
going to die, however, the shots went somewhere else. While
waiting for the police to arrive, T.F. also heard the
7} After the shots were fired, A.B. heard sirens
coming from a distance. The offender that was still with her
ran away. A.B. retrieved her shorts, shoes, and bra, put them
on, and then ran to her apartment. She left her underwear and
shirt lying on the ground where the offenders had removed
8} A.B. testified that neither man wore a condom.
She did not know if either of them ejaculated. A.B. never saw
the offenders' faces. Every time she looked up, they
pushed her head down. She believed that they were black males
between the age of 20 and 30, they were wearing dark clothes,
and that one was taller than the other. It also was pitch
black outside when this happened. A.B. did see the firearms
that the offenders were carrying. One firearm was all black,
and the other firearm was a silver handgun. T.F. was also not
able to get a good look at either one of the offenders. He
described them as two African-American males, one kind of
tall, and the other one shorter with a medium build. A.B. and
T.F. denied knowing appellant.
9} Columbus Police Detective Ricky Crum responded to
the scene on the report of a rape in progress. While Crum was
en route to the scene, it was aired that shots had been
fired. After the police arrived, A.B. was taken to Riverside
Methodist Hospital where a sexual assault exam was performed.
10} The state presented seven other witnesses at
trial including four detectives, the sexual assault nurse
examiner ("SANE") Lynn Ressler, who examined A.B.
and took the swabs or samples of potential DNA evidence, and
the individuals who performed the forensic testing. Columbus
Police Detective David Bobbitt with the sexual-assault unit
investigated this case and developed appellant as a suspect.
Detective Lawrence Gauthney gave Bobbitt the name of Juan
Mandujano, and relayed that he was a known associate of
appellant. Bobbitt ultimately charged appellant and Mandujano
out of this incident. Mandujano was deceased at the time of
11} The forensic scientist who analyzed the DNA
samples in the case, Hallie Garofalo, from the Ohio Bureau of
Criminal Investigation ("BCI") testified that
appellant's DNA was included in the mixture with
A.B.'s DNA in the cutting from the crotch of her shorts.
The proportion of the population that could not be excluded
as possible contributors was 1 in every 888, 900, 000
unrelated individuals. In Garofalo's experience, the
quantity of DNA obtained from this sample was not indicative
of "casual transfer or a touch DNA sample." (Tr. at
530.) The amount of DNA that was detected was
"consistent with a potential body fluid that could have
been left behind." (Tr. at 532.) In Garofalo's
expert opinion, the DNA obtained from this sample also was
not from urine. The shorts were tested and "[were]
presumptive negative for urine." (Tr. at 544.) Garofalo
explained that pre-ejaculate can test presumptively positive
for semen but it does not contain sperm cells.
12} The stairwell was also swabbed and appellant was
"included as a potential minor contributor to that
mixture." (Tr. at 539.) Garofalo testified that the DNA
profile from a swabbing of the stairwell contained a mixture
of DNA. The major profile was from an unknown male. The minor
profile was consistent with contributions from appellant.
A.B.'s vaginal swabs contained DNA consistent with Juan
13} Appellant testified on his own behalf. He
admitted to selling drugs at the time of the alleged incident
and, contrary to T.F.'s testimony, claimed that he knew
T.F. because T.F. would buy heroin from him. He denied
knowing A.B. He also testified that he had been in the
stairwell where the incident is alleged to have taken place
because he hung out with people in that area and that
everybody just used the bathroom "right there."
(Tr. at 700.) Appellant repeatedly denied his involvement
with the allegations in this case. He claimed that on the day
in question there had been a dispute over drugs between T.F.
and Mandujano, and that he was being framed.
14} Appellant also testified at trial that he was
close friends with Mandujano. During a jail call with his
fiancée, appellant denied knowing A.B. and T.F. After
initially denying it, appellant also admitted telling his
fiancée to write down the names of the victims,
"find them" and "take their asses out."
(Tr. at 738-39.)
15} On August 1, 2016, the jury returned a verdict
finding appellant guilty of Count 1 (kidnapping), Counts 4
and 5 (rape), Counts 9 and 10 (attempted rape), and Count 11
(rape) of the indictment. Further, the jury found appellant
guilty of the firearm specification for each of the guilty
verdicts. The jury found appellant not guilty of Counts 2, 3,
6, 7, and 8 of the indictment. On August 24, 2016,
the court sentenced appellant to a total of 40 years in
ASSIGNMENTS OF ERROR
16} Appellant appeals, assigning the following
[I.] THE TRIAL COURT ERRED WHEN IT DENIED
DEFENDANT-APPELLANT'S CRIMINAL RULE 29 MOTION FOR
[II.] THE VERDICTS OF GUILTY TO KIDNAPPING, THREE COUNTS OF
RAPE, AND TWO COUNTS OF ATTEMPTED RAPE ARE AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
[III.] THE TRIAL COURT ERRED WHEN IT ALLOWED THE ALLEGED
VICTIM TO TESTIFY AS TO HER FEELINGS SURROUNDING THE
[IV.] THE TRIAL COURT ERRED WHEN IT ALLOWED LYNN RESSLER, THE
SANE NURSE, TO TESTIFY AS AN EXPERT OVER THE ...