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State v. Biven

Court of Appeals of Ohio, Fifth District, Licking

June 24, 2019

STATE OF OHIO Plaintiff-Appellee
v.
JAMES BIVEN Defendant-Appellant

          Criminal Appeal from the Court of Common Pleas, Case No. 2017 CR 00801

          For Plaintiff-Appellee WILLIAM C. HAYES PROSECUTING ATTORNEY PAULA M. SAWYERS ASSISTANT PROSECUTOR

          For Defendant-Appellant STEPHEN E. PALMER YAVITCH & PALMER CO., LPA

          JUDGES: Hon. W. Scott Gwin, P. J. Hon. John W. Wise, J. Hon. Patricia A. Delaney, J.

          OPINION

          WISE, J.

         {¶1} Defendant-Appellant James Biven appeals his conviction and sentence entered in the Licking County Common Pleas Court on two counts of sexual imposition following a jury trial.

         {¶2} Plaintiff-Appellee is the State of Ohio.

         STATEMENT OF THE CASE AND FACTS

         {¶3} This case stemmed from an incident on or about September 8, 2017, between Appellant James Biven and his former daughter-in-law, the victim in this case. That evening, Appellant entered the victim's bedroom and engaged in sexual activity with the victim.

         {¶4} As a result, on September 21, 2017, Appellant James Biven was indicted on one count of Rape, in violation of R.C. §2907.02(A)(1)(c), a felony of the first degree, and one count of Sexual Battery, in violation of R.C. §2907.03(A)(3), a felony of the third degree.

         {¶5} On August 21, 2018, the case proceeded to a trial by jury.

         {¶6} At trial, the victim testified that she had known the Appellant since 2002, and that he was her former father-in-law. (T. at 127). She and her family lived in a home in Johnstown that she rented from Appellant. (T. at 128-129). She also worked with Appellant. Id. The home she lived in was within walking distance of Appellant's home. (T. at 129). On the night in question, the victim awoke to someone touching her breasts over her clothing. (T. at 145-146). She testified that the person then began rubbing his hand on her vagina under her pants and then began performing oral sex on her. (T. at 146). She stated that she believed at that time that it was her boyfriend, Mike Compton, because she had been expecting him to come back later that evening. (T. at 146-147, 151, 176, 187). She stated at that time she tapped the person on the shoulder to come up and kiss her and that Appellant froze, and then she saw his bald head as he left her bedroom. (T. at 147). At that point she realized it was Appellant. (T. at 148). She stated that she did not consent to sexual activity with Appellant, and that it made her feel disgusted and gross. (T. at 149, 151, 153, 157).

         {¶7} The victim told her brother Bobby what had happened with Appellant. (T. at 199). Bobby testified that he then went and confronted Appellant, pushing him and telling him that he had better stay away from his sister. Id. Bobby recalled that when he went back to his sister's house, her boyfriend Mike showed up and that he told him what had happened. (T. at 200). Bobby stated that Mike became angry and then they both went back up to Appellant's house. Id. Bobby says he then saw Mike run into Appellant's barn followed by Appellant chasing Mike outside swinging a fire poker at him. Id. Bobby stated that he could not clearly recall what happened next other than rocks were thrown and dirt rake was swung around by someone. (T. at 201). He stated that Appellant then stated he was going inside to get a gun, and he and Mike then both ran back to the victim's house. Id. Bobby stated that Mike left and then the police arrived. Id. Bobby stated that he did not call 9-1-1 but that he believed Mike made the call. Id.

         {¶8} Deputy Andrew Clary with the Licking County Sheriff's Department testified that he was dispatched to the scene on a rape and/or sex crime call, and that upon arrival he spoke with the victim. (T. at 213, 220-221). Deputy Clary then contacted the Detective Bureau. Id. Deputy Clary also testified that he photographed evidence in the victim's bedroom and collected and marked said evidence, including the victim's shorts and panties. (T. at 214-215). Deputy Clary also took pictures of text messages that the victim had received on her phone. (T. at 215-216, 228). Deputy Clary stated that when Detective Wallace arrived on the scene, he turned the investigation over to her. (T. at 217).

         {¶9} Det. Wallace testified that she arrived on the scene at approximately 4:00 a.m. on September 9, 2017, and interviewed the victim. (T. at 274-275). She stated that she also took possession of the evidence collected by Deputy Clary. (T. at 277). Det. Wallace stated that she had the victim accompany her to the Detective Bureau where they attempted to place a controlled phone call and controlled text messages to Appellant. (T. at 279). She recalled that while the victim did not receive a reply while she was at the sheriffs office, she did receive a reply later and that those were forwarded to her. (T. at 279-280).

         {¶10} Lieutenant Brock Harmon testified that he was contacted to assist in the investigation of Appellant. (T. at 239). Lt. Harmon testified that he conducted an interview of Appellant on September 10, 2017, at the Licking County Sheriffs Office. (T. at 240).

         {¶11} Appellant's interview to police was played for the jury. (T. at 241). In the interview, Appellant admitted that he put his hand on the victim's leg and that he didn't remember how far his finger penetrated her vagina. He admitted it wasn't the victim's fault, and that she probably thought he was somebody else. He then stated that he moved her panties over to the side and performed oral sex on her. Appellant stated that she then said "Mike" and he left. He stated that he was ashamed of what he did.

         {¶12} Upon Appellant's request, the trial court instructed the jury on two lesser included offenses of Sexual Imposition as set forth in R.C. §2907.06.

         {¶13} On August 22, 2018, the jury returned verdicts of not guilty on the charges of Rape and Sexual Battery but found Appellant guilty on the two lesser included offenses of Sexual Imposition.

         {¶14} The trial court sentenced Appellant to sixty (60) days on each count of Sexual Imposition to be served consecutively for an aggregate sentence of 120 days. The trial court also ordered Appellant to register as a Tier I sex offender pursuant to R.C. 2950, et seq.

         {¶15} Appellant now appeals, assigning the following errors for review:

         ASSIGNMENTS OF ERROR

         {¶16} "I. THE TRIAL COURT ERRED AND DEPRIVED APPELLANT OF HIS RIGHT TO PRESENT A COMPLETE DEFENSE BY EXCLUDING KEY EXCULPATORY EVIDENCE ON THE BASIS OF IMPROPER EVIDENTIARY RULINGS, THEREBY VIOLATING APPELLANT'S RIGHT TO DUE PROCESS OF LAW UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND COMPARABLE PROVISIONS OF THE OHIO CONSTITUTION.

         {¶17} "II. THE TRIAL COURT ERRED BY IMPOSING CONSECUTIVE SENTENCES ON TWO OFFENSES THAT SHOULD HAVE MERGED, THEREBY VIOLATING THE JEOPARDY CLAUSE AND APPELLANT'S RIGHT TO DUE PROCESS OF LAW UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND COMPARABLE PROVISIONS OF THE OHIO CONSTITUTION.

         {¶18} "III. THE CONVICTIONS DEPRIVED APPELLANT OF DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND COMPARABLE PROVISIONS OF THE OHIO CONSTITUTION, AS THE STATE FAILED TO OFFER SUFFICIENT EVIDENCE TO PROVE EACH AND EVERY ELEMENT OF THE CHARGES BEYOND A ...


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