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State v. Hayes

Court of Appeals of Ohio, Seventh District, Noble

June 26, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
SCOTT A. HAYES, Defendant-Appellant.

          Criminal Appeal from the Court of Common Pleas of Noble County, Ohio Case No. 218-2007

          Atty. Kelly Riddle, Prosecutor, for Plaintiff-Appellee and

          Atty. Samuel Shamansky, Atty. Donald Regensburger, Atty. Colin Peters, Samuel H. Shamansky Co., L.P.A., for Defendant-Appellant.

          BEFORE: Gene Donofrio, Cheryl L. Waite, David A. D'Apolito, Judges.

          OPINION AND JUDGMENT ENTRY

          Donofrio, J.

         {¶1} Defendant-appellant, Scott Hayes, appeals his conviction following a jury trial in the Noble County Common Pleas Court for one count of sexual battery on the basis that the victim submitted because she was unaware that sexual conduct was being committed in violation of R.C. 2907.03(A)(3), a third-degree felony.

         {¶2} In 2017, appellant and the victim, A.B., were involved in a sexual relationship. A.B. decided to end the relationship in November of 2017. There were no negative feelings between appellant and A.B. and the two continued to communicate regularly.

         {¶3} On February 11, 2018, A.B. contacted appellant about potentially restarting their relationship. Appellant indicated that he wanted the same thing. The two agreed to meet and appellant arrived at A.B.'s home at approximately 1:00 a.m. on February 12, 2018.

         {¶4} According to A.B., when appellant arrived, A.B. suggested that they watch a movie. A.B. told appellant that she was not willing to have sex on this occasion. The two went into A.B.'s room in order to watch the movie. The two laid on A.B.'s bed and A.B. laid her head on appellant's chest while the movie was playing. A.B. told appellant that she might fall asleep and appellant responded that he would leave once the movie was finished. A.B. said she was "too tired to do anything * * *." (Tr. 28).

         {¶5} According to A.B., she eventually fell asleep. She testified that when she woke up, her pants were off and appellant "had inserted his penis inside me * * *." (Tr. 29). A.B. backed away and told appellant she did not want to have sex. Appellant then began to perform oral sex on A.B. A.B. again said no and tried to push appellant away. Appellant then began touching A.B.'s breasts and put his hands around A.B.'s throat. At the end, appellant told A.B. "whatever dream [she] was having had to have been some dream * * *." (Tr. 32). A.B. collected her clothes and went to the bathroom to get dressed. When A.B. left the bathroom, appellant was already dressed and ready to leave.

         {¶6} According to appellant, he and A.B. were talking about their relationships with other people since their relationship ended in November of 2017. The two were also making sexually based jokes. The two were talking throughout the beginning of the movie. Appellant laid back and A.B. put her head on appellant's chest. Appellant stated that he was willing to leave once A.B. told him that she might fall asleep, but A.B. wanted him to stay. When appellant was ready to leave, A.B. grabbed his hand and put it on her breast. Eventually, A.B. and appellant removed A.B.'s pants together.

         {¶7} According to appellant, he then began performing oral sex on A.B. A.B. told him no because his beard tickled her. Appellant then removed his clothes, put on a condom, and the two began having sex. Appellant stopped to perform more oral sex on A.B. before the two began having sex again. At the end, A.B. went into the bathroom and appellant got dressed. Appellant and A.B. looked outside A.B.'s window, commented on how much it had snowed since appellant came over, and appellant left before the snow got worse. As appellant was attempting to leave, he noticed that A.B.'s front door did not shut all the way and the two had a conversation about that. Appellant testified that A.B. did not fall asleep.

         {¶8} Once appellant left, according to A. B., she tried to call her mother and then called her cousin. A.B. then went to the Noble County Sherriff's Office to report what had happened between her and appellant. A.B. arrived at the Noble County Sheriff's Office at approximately 3:30 a.m. on February 12, 2018. A.B. gave a statement to deputies, was sent to the hospital for a rape kit, and the investigation of what happened between A.B. and appellant was assigned to Deputy Stokes.

         {¶9} Deputy Stokes contacted appellant and asked him to come in for an interview. Appellant voluntarily came in and gave a statement. Appellant's statement was recorded. Appellant admitted to Deputy Stokes that he had sex with A.B., but appellant said that the sex was consensual. Deputy Stokes explained that appellant was not arrested at the end of the interview because "the only thing we established is that there was sex, but it was essentially her word against his." (Tr. 76).

         {¶10} Scott Stoney, an officer for the Ohio Department of Mental Health and the Guernsey County Sheriff's Department, contacted Deputy Stokes regarding appellant and A.B. Officer Stoney is a friend of appellant's and has been for approximately 30 years. Officer Stoney spoke to appellant three times regarding the incident with A.B. The first time, appellant told Officer Stoney that he was going to the Noble County Sheriffs Department to give a statement. After he gave a statement, appellant called Officer Stoney back. Appellant told Officer Stoney of the events that occurred between him and A.B. When describing the sexual encounter, Officer Stoney said appellant told him that A.B. fell asleep and appellant "pulled her pants down and stuck it in her * * *." (Tr. 105). Appellant also told Officer Stoney that the Noble County Sheriffs Department wanted him to take a polygraph test. Appellant asked Officer Stoney "how can I beat this polygraph[?]" (Tr. 106). When Officer Stoney said that the only way to beat a polygraph was to tell the truth, appellant responded "I can't do that." (Tr. 106-107).

         {¶11} Officer Stoney spoke to Noble County Sheriff Robert Pickenpaugh directly. The conversation between Sheriff Pickenpaugh and Officer Stoney was recorded and admitted into evidence as Exhibit B (Ex. B). Officer Stoney informed Sheriff Pickenpaugh of the details of the conversations he had with appellant. Officer Stoney then agreed to contact appellant again and record the conversation.

         {¶12} After Officer Stoney's interview with Sheriff Pickenpaugh concluded, Officer Stoney contacted appellant. Officer Stoney recorded this conversation with appellant which was admitted into evidence as Exhibit C (Ex. C). During his testimony, Officer Stoney explained that his previous conversations with appellant about A.B. and appellant's statements in Ex. C were "pretty much the same, but different a little bit." (Tr. 112).

         {¶13} A Noble County Grand Jury indicted appellant on two counts of sexual battery: count one for a violation of R.C. 2907.03(A)(1), a third-degree felony; and count two for a violation of R.C. 2907.03(A)(3), a third-degree felony. R.C. 2907.03(A)(1) defines sexual battery as the offender knowingly coerces a victim to submit to sexual conduct by any means that would prevent resistance by a person of ordinary resolution. R.C. 2907.03(A)(3) defines sexual battery as the offender knows the victim submits to sexual conduct because the victim is unaware that the sexual conduct is being committed.

         {¶14} The matter proceeded to a jury trial. The jury found appellant not guilty on count one and guilty on count two. In a judgment entry dated July 17, 2018, the trial court sentenced appellant to 30 months of incarceration. Appellant timely filed this appeal on August 9, 2018. Appellant now raises four assignments of error.

         {¶15} Appellant's first assignment of error states:

THE INTRODUCTION OF UNFAIRLY PREJUDICIAL HEARSAY STATEMENTS DURING APPELLANTS TRIAL VIOLATED HIS RIGHT TO DUE PROCESS AS GUARANTEED BY THE FOURTH, FIFTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND WAS CONTRARY TO THE OHIO RULES OF EVIDENCE.

         {¶16} Appellant argues that Ex. B, Sheriff Pickenpaugh's recorded conversation with Officer Stoney, was impermissible hearsay which should have been excluded.

         {¶17} The admission of evidence is within the discretion of the trial court and the court's decision will only be reversed upon a showing of abuse of discretion. State ex rel. Sartini v. Yost,96 Ohio St.3d 37, 2002-Ohio-3317, 770 N.E.2d 584. But when no objection to evidence is raised at trial, all but plain error is waived. State v. Lang,129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ΒΆ 108. An alleged error is plain error only if the ...


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