from the Franklin County No. 17CR-1548 Court of Common Pleas
O'Brien, Prosecuting Attorney, and Michael P. Walton, for
Law Office of Thomas F. Hayes, LLC, and Thomas F. Hayes, for
Michael P. Walton.
1} Defendant-appellant, R.I.H., appeals the January
16, 2018 judgment of the Franklin County Court of Common
Pleas finding him guilty, pursuant to jury verdict, and
imposing sentence. For the following reasons, we affirm.
Facts and Procedural History
2} On March 16, 2017, a Franklin County Grand Jury
indicted appellant on six criminal counts: two counts of
attempted rape, in violation of R.C. 2923.02 and 2907.02,
felonies of the first degree; two counts of gross sexual
imposition, in violation of R.C. 2907.05, felonies of the
third degree; and two counts of rape, in violation of R.C.
2907.02, felonies of the first degree. On January 8, 2018,
the matter proceeded to trial.
3} At trial, R.A. (or "mother"), testified
she was currently married to appellant and had 11 children,
including her daughter, N.A. Appellant began living with R.A.
and her children at a house on Refugee Road in Franklin
County, Ohio (the "Refugee Road house") in August
2013. In October 2014, R.A. and appellant married and moved
with R.A.'s children to a house on Yearling Road in
Franklin County, Ohio (the "Yearling Road house").
In June 2016, R.A., appellant, and the children moved to a
house on Morrison Avenue in Franklin County, Ohio (the
"Morrison Avenue house"). R.A. stated that
appellant had a silver van and she acquired a green van after
she met appellant.
4} According to R.A., appellant treated N.A. better
than her other children. Appellant never became angry at N.A.
and excused her misbehavior. When appellant was away from
R.A. and her children, he would write R.A. and N.A. letters,
but would not write to any of the other children. Appellant
called R.A.'s other children hurtful names, broke their
toys, and physically disciplined them, but did not do so to
5} In 2014, N.A.'s brother, X.A., told mother he
was hiding behind a furnace in a laundry room when he saw
appellant touching N.A. on the thigh. X.A. told his mother he
recorded this on a phone but appellant took the phone, broke
it, and threw it.
6} That same year, N.A. told R.A. about a
"situation regarding an attempted kiss that took place
and mainly that she had felt some guilt about that situation
but had not insinuated anything sexual as far as sex with the
touch of the thigh." (Tr. Vol. II at 137.) N.A. told
R.A. she had a crush on appellant. R.A. testified she did not
think there was anything inappropriate happening between
appellant and N.A. at the time.
7} In another incident in 2014, R.A. found appellant
and N.A. lying in bed next to each other. R.A. told appellant
his behavior was inappropriate and that he should not lie
with her in that manner. Appellant stated he did not have any
daughters, cared about N.A. as though she was his daughter,
and claimed nothing inappropriate had happened. N.A.'s
father, her father's sister, and R.A. spoke with N.A. and
told her she should not lie next to a grown man. At that
time, R.A. believed nothing inappropriate had happened
because appellant and R.A. had recently had a child together.
8} In 2016, R.A. received additional information
that caused her to believe appellant had been sexually active
with N.A. In the context of a fight between appellant and
R.A.'s ex-husband, appellant stated that appellant
"had forced [N.A.] to do oral sex and that he was going
to force her to do the same thing again." (Tr. Vol. II
at 140.) On November 29, 2016, R.A. called police and
reported the allegations involving N.A. R.A. ended her
relationship with appellant and appellant moved out of the
Morrison Avenue house. In December 2016, R.A. took N.A. to
Nationwide Children's Hospital, after which appellant did
not return to R.A.'s home.
9} N.A., who was 12 years old at the time of trial,
testified she had no initial relationship with appellant when
she met him, but he eventually married her mother. When N.A.
was about 8 years old, appellant began living at the Refugee
Road house with R.A., N.A., and N.A.'s siblings.
According to N.A., appellant treated her differently from her
siblings, including X.A. Appellant never did anything sexual
with N.A. while R.A. was in the room, but he "would make
little faces or air words." (Tr. Vol. II at 70.)
10} N.A. could not remember the first time sexual
activity other than kissing happened with
appellant, but recalled the occurrence of multiple such
incidents. The first incident occurred at the Refugee Road
house in R.A.'s room. N.A. touched appellant's penis
with her hand and appellant touched the outside of her vagina
with his hand.
11} In another incident, appellant and N.A. were
sleeping together in R.A.'s bed while R.A. was at work.
Appellant instructed N.A. to perform oral sex on him. N.A.
initially refused, but eventually complied after appellant
encouraged her to do it. N.A. performed oral sex on appellant
for approximately three seconds. According to N.A., at least
two similar instances of oral sex occurred with appellant.
12} When N.A. was staying at her grandmother's
house, appellant took N.A. to a store. On the way back from
the store, N.A. stated that appellant did "inappropriate
things" with her, including touching her vagina and
having her touch his penis. (Tr. Vol. II at 77.)
13} When she was living at the Yearling Road house,
appellant came into N.A.'s room while R.A. was asleep.
N.A. told appellant she was angry at him and stated this was
the last time they would ever do anything together. Appellant
let her punch him in the face multiple times and, in return,
she let him place his penis on her vagina.
14} On the way to appellant's mother's house
in a blue or green van, appellant touched the outside of
N.A.'s vagina with his penis. N.A. felt "so
scared" and "kind of forced into it." (Tr.
Vol. II at 79.) However, appellant told N.A. that
"everything was going to be okay and that we were fine
and that he loved me." (Tr. Vol. II at 79.)
15} N.A. also referred to several other instances of
sexual activity with appellant. While appellant and N.A. were
on a walk near the Refugee Road house, appellant brought N.A.
behind a house and placed his tongue and penis on her vagina.
When N.A. was living at the Morrison Avenue house, appellant
put his tongue on N.A.'s vagina. Appellant also touched
N.A.'s butt with his hands while he played a pornographic
video for N.A. and X.A. in mother's room. N.A. testified
she never saw anything come out of appellant's penis when
he committed sexual activity with her.
16} N.A. testified appellant tried to place his
penis inside her vagina multiple times in different houses.
In the first such incident she recalled, she and appellant
were in R.A.'s room at the Refugee Road house while R.A.
was at work. Appellant attempted but was unable to place his
penis inside N.A.'s vagina; N.A. testified that it hurt.
In the last incident of sexual activity with appellant, N.A.
was watching a movie at the Morrison Avenue house when
appellant brought her into the kitchen, pulled her pants
down, bent her over a table, pulled his pants down, and tried
to put his penis in her.
17} N.A. testified she did not like the things
appellant was doing to her so she told X.A. about them. N.A.
and X.A. decided to film appellant's interactions with
N.A. to give to mother as proof. X.A. hid in the basement and
used a phone camera to film N.A. and appellant. X.A. recorded
appellant kissing N.A. and placing his hands on N.A.'s
thighs and waist on a couch in the basement. X.A.
"jumped out and said something like, 'I got
you.'" (Tr. Vol. II at 72.)
18} Appellant stood up quickly and became angry.
X.A. tried to run but appellant grabbed him, took the phone,
broke it in half, and threw it in the backyard. Appellant
told N.A. and X.A. that he "really liked our family and
that he didn't want to break us all apart, so he begged
us not to tell [mother]." (Tr. Vol. II at 73.) Although
X.A. wanted to tell mother what appellant was doing to N.A.,
N.A. asked him not to because she "felt bad because
[appellant] was sad, and seeing him sad made me sad."
(Tr. Vol. II at 73.)
19} N.A. testified she had a crush on appellant and
sometimes wanted to do sexual things with him. When she did
not want to do sexual things with appellant, appellant would
become sad, cry, and become meaner to her. Appellant also
begged N.A. not to tell anyone about his sexual activities
with her, stating that if she did "he would go away for
a really long time, that this could ruin his life." (Tr.
Vol. II at 76.) N.A. once told R.A. that appellant touched
her on the thigh inappropriately, but later recanted, saying
20} After the last instance of sexual activity
between appellant and N.A. at the Morrison Avenue house, X.A.
told mother about appellant's sexual activity with N.A.
Mother asked N.A. whether appellant had sexually abused her.
At first, N.A. denied it happened because she did not want
anyone to know because she felt ashamed of herself. N.A.
stated she was worried about telling R.A. because R.A. was
married to appellant and "[b]ecause I did all of these
things that would break my mom's heart and I didn't
want to do that." (Tr. Vol. II at 75.)
21} In December 2016, after X.A. told mother what
appellant was doing to N.A., mother took N.A. to Nationwide
Children's Hospital to determine if she had any
infections from sexual activity. While there, N.A. was
interviewed. N.A. testified she was not told what to say to
22} On cross-examination, N.A. described another
instance of sexual activity with appellant. N.A. testified
she went to sleep in R.A.'s bed because she had a
nightmare. Appellant was also in the bed and touched her
vagina with his fingers. N.A. did not wake up R.A. or tell
her what happened. N.A. could not remember whether this was
the first time appellant committed sexual activity with her
23} X.A., who was 11 years old at the time of trial,
testified appellant treated N.A. better than anyone else.
Because X.A. and N.A. did not like the way appellant was
treating N.A., X.A. and N.A. decided to use a cell phone to
record appellant's conduct with N.A. X.A. hid in the
basement of the Yearling Road house and recorded appellant
touching N.A. on the thigh. X.A. jumped out and said,"
'Ha ha. I caught you.'" (Tr. Vol. II at 118.)
Appellant became angry, opened the back door to the house,
broke the phone in half, and threw it outside.
24} Lauren Brown, a licensed social worker who was
employed as a forensic interviewer and mental health advocate
in the Child Assessment Center at Nationwide Children's
Hospital, testified she interviewed N.A. on December 2, 2016.
A recording of the interview was played at trial.
25} During the interview, N.A. disclosed that
appellant had engaged in several instances of sexual activity
with her. In the first instance she remembered, N.A. was
living at the Refugee Road house when she woke up from a bad
dream and went to wake up R.A. Appellant, who was in the
middle of the bed next to R.A., woke up and told N.A. to lie
down next to him on the ...