Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Winston

Court of Appeals of Ohio, Tenth District

June 28, 2018

State of Ohio, Plaintiff-Appellee,
v.
Levone Winston, Defendant-Appellant.

          APPEAL from the Franklin County Court of Common Pleas C.P.C. No. 14CR-2163

         On brief:

          Ron O'Brien, Prosecuting Attorney, and Valerie B. Swanson, for appellee.

          Brian J. Rigg, for appellant.

          DECISION

          HORTON, J.

         {¶ 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.

         I. 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 gunshots.

         {¶ 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 them.

         {¶ 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 appellant's trial.

         {¶ 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 Mandujano.

         {¶ 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 prison.

         II. ASSIGNMENTS OF ERROR

         {¶ 16} Appellant appeals, assigning the following errors:

[I.] THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT-APPELLANT'S CRIMINAL RULE 29 MOTION FOR ACQUITTAL.
[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 INCIDENT.
[IV.] THE TRIAL COURT ERRED WHEN IT ALLOWED LYNN RESSLER, THE SANE NURSE, TO TESTIFY AS AN EXPERT OVER THE ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.