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State v. McNeal

Court of Appeals of Ohio, Second District, Montgomery

July 19, 2019

STATE OF OHIO Plaintiff-Appellee
TRACY K. MCNEAL Defendant-Appellant

          Criminal Appeal from Common Pleas Court Case No. 2014-CR-3409

          MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Montgomery County Prosecutor's Office, Attorney for Plaintiff-Appellee

          CRAIG M. JAQUITH, Attorney for Defendant-Appellant


          FROELICH, J.

          {¶ 1} Tracy K. McNeal appeals from his conviction of rape of a substantially impaired victim, with a repeat violent offender specification, for which he was sentenced to 11 years for the rape offense plus nine years for the attached specification, for an aggregate prison term of 20 years. The judgment of the trial court will be affirmed.

         Factual and Procedural Background

         {¶ 2} In October 2014, a Montgomery County grand jury indicted McNeal for two counts of rape (substantially impaired victim) in violation of R.C. 2907.02(A)(1)(c), a first-degree felony, with a repeat violent offender specification attached to the second count. The two counts related to offenses against different victims, one in 2009 and one in 2014, and were severed for purposes of trial.

         {¶ 3} McNeal's first trial on Count Two ended in a mistrial. In October 2016, the case proceeded to a second jury trial on that count. During that trial, the Count Two complainant, then-23-year-old C.R., testified that when she was about 16, McNeal and his wife, Leesa, lived for about a year across the street from C.R., her mother, her sister ("Sister), and Sister's husband ("Brother-in-Law"). The families became friends, and C.R. stayed in touch with Leesa after both families moved.

         {¶ 4} In September 2014, C.R. permitted McNeal, Leesa, and their four children[1] to move temporarily into C.R.'s two-bedroom, one-bathroom apartment with C.R. and her three-year-old son. C.R. and her son shared one bedroom while the McNeals all stayed in the other bedroom. Sister and Brother-in-Law lived in the apartment next door with their three children.

         {¶ 5} According to C.R., on September 29, 2014, C.R., Sister, Brother-in-Law, McNeal, and Leesa decided to drink together. They went to a liquor store where C.R. bought herself "a little bottle of Ciroc" and the others "all went in on a half-gallon of vodka." (Transcript ("Tr."), p. 233.) The five began drinking in C.R.'s living room at about 7:00 to 7:30 p.m., while C.R.'s son was asleep in the bedroom he and C.R. shared and three of the McNeals' children were asleep in the other bedroom.[2] C.R. "drank the whole bottle" she had purchased "plus quite a bit" of the other bottle, as McNeal was encouraging C.R. and Leesa to drink shots. (Id., p. 244.) C.R. "probably" smoked marijuana that night as well (id., p. 239), and was taking Klonopin for anxiety. (Id., pp. 274-275.)

         {¶ 6} C.R. said she consumed more alcohol than she normally would. After maybe an hour and a half of drinking, she "just got drunk so quick" and "ran to the bathroom and started throwing up." After that, she "[v]aguely" recalled "bits and pieces" from the rest of the evening. (Id., p. 232.) C.R. remembered Sister and Leesa changing C.R.'s clothes, carrying her to her bedroom, and placing her on her bed on her stomach with a trash can near her head. C.R.'s son was asleep on the other side of the bed.

         {¶ 7} Asked what happened next, C.R. testified:

         I was knocked out. I was really, really drunk. Really, really drunk. I don't remember too much. I was so drunk that I couldn't even help myself. I couldn't - I didn't know what I was doing. * * * I was that drunk. (Tr., p. 249.)

         {¶ 8} At some later point, however, C.R. felt herself "being yanked on to the bottom of the bed," roughly and by her feet. (Id., p. 250.) She testified that she first thought it was her boyfriend, who had a key to the apartment. Her testimony continued:

* * *
I was so drunk I really couldn't - I was just laying [sic] there like I couldn't stop anything. I couldn't say yes. I couldn't say no.
* * *
And then, I remember getting flipped over and then, I rem - I don't really remember too much after that. I know I was in and out, in and out, in and out like I was unconscious for a second for say [sic]. And then, it - I would just keep going in and out like I couldn't stay[ ] * * * [i]n my right mind.
I remember when I was flipped over, which would have made me be on my back at that time * * * I remember getting yanked closer but like I said I - it was in and out. So I don't really remember. When I came to I seen [sic] my sister.
And I said, [Sister], was somebody just in here? And she said, yeah. I said who? She said [McNeal]. I said, [Sister], he just f* * *ing raped me.

(Tr., pp. 250-251.)

         {¶ 9} Despite her inability to recall details of the incident, C.R. said that she knew she had been raped because "being a woman, when I have intercourse, I get like wet and sticky down there * * * And that's what I was feeling. * * * And I knew that I didn't do anything." (Id., p. 252.) Sister suggested that they go to Sister's apartment to call the police; C.R. asked Sister to carry C.R.'s son. C.R. stated that on the way there, she "was in a lot of pain in [her] vaginal area"; she described it as "stabbing pain." (Id., pp. 254, 255.)

         {¶ 10} After the police and medics arrived, C.R. went to the hospital for a sexual assault examination. C.R. described her pain to the examining nurse. She also consented to a police search of her apartment. Asked on cross-examination if she remembered being penetrated, C.R. responded, "I can't answer that 'cause I don't know. I was in and out." (Id., p. 276.)

         {¶ 11} Sister offered similar testimony. Sister said her family knew McNeal and Leesa as former neighbors, and when McNeal and Leesa wanted to return to Ohio, C.R. permitted them to temporarily move into her apartment with their four children. Using photographs, Sister described C.R.'s apartment as it appeared on September 29, 2014. That evening, Sister and her children went over to C.R.'s apartment, where C.R., Leesa, McNeal, and Brother-in-Law (Sister's husband) already had been drinking vodka. Sister left to put her children to bed in her own apartment, then returned to C.R.'s and began drinking with the group. After Sister drank a few shots, C.R. "started to get sick"; "at this point she's in the bathroom puking and urinating on herself." (Tr., p. 495.) Sister and Leesa "cleaned [C.R.] up, change[d] her clothes and put her in bed" on her side, with a trashcan next to the bed. (Id., pp. 495-496.) Sister went back to the living room with the group, but continued to check on C.R. about every 15 minutes.

         {¶ 12} After an hour and a half or so, Sister went to her own apartment to eat a sandwich and go bed. As she was finishing the sandwich, Brother-in-Law came home "really drunk" and "started an argument." (Id., p. 501.) After 10 or 15 minutes, Sister left to find McNeal, to ask him "to try to calm [Brother-in-Law] down."

         {¶ 13} When Sister entered C.R.'s apartment, no one was in the living room. Calling McNeal's name, Sister headed back to the darkened hallway toward the bedrooms. She flipped on a light and again called McNeal's name. "And next thing I know [McNeal]'s standing in [C.R.'s] bedroom doorway, not dressed around his waist, he's got clothes around his ankles and kind of shocked me." (Id., p. 502.) According to Sister, McNeal was naked from the waist down, and she saw "part of his penis." Sister continued:

[McNeal] was out of breath, red, and his face was red, and he was real sweaty. And he looked at me and said, "My bad, me and Leesa are in here doing some freaky shit."
[The bedroom door] was being pulled shut like he was trying to hide what was in there. * * * I couldn't see anything inside the room, but I could see * * * that it was dark.

(Id., p. 503.)

         {¶ 14} Sister testified that she hurried away and returned to her own apartment. Once there, however, she realized that McNeal had not been standing in the doorway of the bedroom where he, Leesa, and their children were staying, but instead had been standing in the doorway of C.R.'s bedroom. Sister was attempting to convince her intoxicated husband (Brother-in-Law) to return to C.R.'s apartment with her when McNeal walked into Sister's apartment and asked what she wanted. Sister asked McNeal to calm Brother-in-Law down, then left to go back to C.R.'s apartment. She testified:

I walked straight back to [C.R.]'s bedroom, and I whispered for Leesa[;] I said, "Leesa are you in here?" And I hear, "(Sister's name)," and I could tell it was [C.R.] and not Leesa, and I flipped on the light and she's sitting and her face is red. She's got tears coming down her cheeks, and she asked me who was just in [the] bedroom. And I told her [McNeal] was. And panic sets in, she like starts gasping for - not gasping for air, panting, she's out of breath. She's complaining her chest hurt, and told me, "That motherf* * *er was in here f* * *ing me while I was asleep."

(Id., pp. 505-506.)

         {¶ 15} Sister then took C.R. and C.R.'s son back to Sister's apartment, where C.R. called another friend to tell her that C.R. had been raped. That friend called the police.

         {¶ 16} Officer Anthony Sawmiller of the Dayton Police Department was dispatched to Sister's apartment in response to a reported assault. Officer Sawmiller testified that he found C.R. there, "somewhat hysterical and crying."[3] She appeared to be intoxicated. C.R. reported that she had been raped by McNeal. Sister also was there, and did not seem intoxicated, but was upset.

         {¶ 17} After medics arrived, Officer Sawmiller proceeded to C.R.'s apartment, where McNeal and Leesa were seated in the living room. McNeal "seemed a little nervous," but claimed that "nothing" had happened. McNeal indicated that a number of people had been drinking and smoking marijuana in the apartment when C.R. became sick and vomited. McNeal also reported that C.R. and Sister had gotten into an argument about Brother-in-Law doing something that Sister considered "inappropriate." McNeal said that he had "tried to have sex with his wife" that night, but gave different accounts as to which bedroom was his. According to Officer Sawmiller, Leesa tried to interject while McNeal was talking, but McNeal "continually interrupted her." After three or four interruptions, Leesa left the apartment. Based on the interviews conducted at the scene, police officers placed McNeal under arrest.

         {¶ 18} About an hour and a half after arriving at the scene, Officer Sawmiller went to the hospital, where he found C.R. seeming "calmer and less intoxicated. C.R. complained of pain in her vaginal area.

         {¶ 19} Bobbie Jo Rosell, the nurse who conducted C.R.'s sexual assault exam, testified that upon arriving at the hospital on the morning of September 30, 2014, C.R. was "alert," "oriented," and "able to give * * * a narrative in regards to what had happened that night." (Id., p. 313.) Rosell said C.R. told her that C.R. "had some issues remembering" the event. (Id., p. 315.) C.R. reported waking up and hearing Sister's voice. C.R. then realized that her right breast "was hanging out from underneath her shirt and * * * she did not have anything on from her waist down." (Id., pp. 315-316.) C.R. reported she "felt like she was wet down in her vaginal area and she was having a lot of pain and discomfort"; C.R. said she "just didn't feel right or she fe[lt] weird." (Id., p. 316.) However, C.R. could not recall having been penetrated by a penis or fingers. (Id., p. 316.)

         {¶ 20} Rosell collected swabs from various places on C.R.'s body, including her rectal area. Rosell said that she did so because, if a woman has a sexual encounter while lying on her back, "there's possibly trace DNA that flowed from her vaginal opening down to the rectal area." (Id., pp. 327-328.) Rosell testified that C.R.'s complaints of pain "were consistent with a sexual encounter" (id, p. 329); "you don't have pain at the posterior fourchette[4] unless something is trying to enter that area." (Id., pp. 331-332.)

         {¶ 21} Crime Scene Investigator ("CSI") John Malott of the Dayton Police Department testified about gathering evidence at C.R.'s apartment. With McNeal's consent, he first collected a DNA swab from McNeal's cheek. Malott also collected the bedding from C.R.'s bed and the sexual assault kit performed on C.R. from the hospital. Further, CSI Malott identified photographs he took inside C.R.'s apartment on the morning of September 30, 2014.

         {¶ 22} Forensic scientist Mary Cicco of the Miami Valley Regional Crime Laboratory testified as an expert in serology and DNA. Cicco testified that she performed DNA testing on the swabs taken from McNeal's cheek and from C.R.'s body. The rectal swabs obtained from C.R. tested positive for semen, but contained no sperm cells. Through further testing, Cicco determined that "very little male DNA" was present, allowing her to develop "a minimal DNA profile" consisting of three of 15 possible markers. Those three markers matched McNeal's DNA profile. Cicco testified that one in 2, 947 Caucasian males would match those three markers.

         {¶ 23} For further comparison, Cicco also performed a different test for male-specific DNA, known as Y-STR testing, on the semen sample. According to Cicco, although she could not say that McNeal specifically was the source of that sample, the Y-STR testing showed that the semen came from a member of McNeal's biological family. Out of 16 different markers used for such testing, Cicco found six, all of which matched McNeal. Cicco testified that one in 382 Caucasian males would match the six markers found on the second test. She stated her opinion as follows:

It is my opinion that the male DNA profile that I obtained from the rectal swabs matches back to Tracy McNeal with the statistics that are provided in the report that he cannot be excluded based on these statistics of finding a random individual that could possibly be that contributor as well.

(Tr., p. 449.)

         {¶ 24} On cross-examination, Cicco acknowledged that the testing she performed did not conclusively establish that McNeal was the contributor of the semen found on C.R.'s rectal swab.

         {¶ 25} The defense called Brother-in-Law, who testified that he did not witness McNeal do anything inappropriate to C.R. on the night of September 29, 2014. On cross-examination, however, Brother-in-Law acknowledged that he had been quite drunk and remembered little from that night. He also indicated that he remembered Sister coming home and telling him that she had seen McNeal come out of C.R.'s bedroom "with his pants down." (Tr., p. 611.) In addition, in an attempt to highlight perceived inconsistencies in C.R.'s statements about the incident, including as to the quantity of alcohol that she consumed on the night in question, defense counsel called a detective involved in investigating C.R.'s allegations.

         {¶ 26} Defense counsel called James Quinn to testify, but when the trial court sustained two objections by the State during Quinn's direct examination, Quinn was excused without the jury's hearing Quinn's testimony about C.R.'s relationship with Leesa. On the record, but outside the jury's presence, McNeal waived his right to testify. Thereafter, also without the jury present, the defense proffered Quinn's testimony that had been excluded by the trial court.

         {¶ 27} The jury found McNeal guilty of rape of a substantially impaired victim. The trial court subsequently found McNeal guilty of the repeat violent offender specification, and sentenced him to 11 years for the rape offense plus nine years for the attached specification, for total of 20 years in prison.

         {¶ 28} This court dismissed McNeal's first appeal from that judgment, finding that the termination entry was not a final appealable order because it failed to address the disposition of Count One. (Decision & Final Judgment Entry, State v. McNeal, 2d Dist. Montgomery No. 27371, May 21, 2018.) The trial court ...

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