Court of Appeals of Ohio, Fifth District, Licking
Criminal Appeal from the Court of Common Pleas, Case No. 2017
Plaintiff-Appellee WILLIAM C. HAYES PROSECUTING ATTORNEY
PAULA M. SAWYERS ASSISTANT PROSECUTOR
Defendant-Appellant STEPHEN E. PALMER YAVITCH & PALMER
JUDGES: Hon. W. Scott Gwin, P. J. Hon. John W. Wise, J. Hon.
Patricia A. Delaney, J.
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.
Plaintiff-Appellee is the State of Ohio.
OF THE CASE AND FACTS
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.
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.
On August 21, 2018, the case proceeded to a trial by jury.
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).
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.
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
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).
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).
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.
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.
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
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.
Appellant now appeals, assigning the following errors for
"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
"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.
"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 ...