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
...