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State v. R.I.H.

Court of Appeals of Ohio, Tenth District

June 4, 2019

State of Ohio, Plaintiff-Appellee,
v.
[R.I.H.], Defendant-Appellant.

          APPEAL from the Franklin County No. 17CR-1548 Court of Common Pleas

         On brief:

          Ron O'Brien, Prosecuting Attorney, and Michael P. Walton, for appellee.

          The Law Office of Thomas F. Hayes, LLC, and Thomas F. Hayes, for appellant.

         Argued:

          Michael P. Walton.

          Thomas F Hayes.

          DECISION

          DORRIAN, J.

         {¶ 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.

         I. 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 N.A.

         {¶ 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[1] 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 she lied.

         {¶ 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 the interviewer.

         {¶ 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 or not.

         {¶ 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 ...


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