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State v. Osei

Court of Appeals of Ohio, Fourth District, Athens

August 14, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
ROXON KOFI OSEI, Defendant-Appellant.

          Timothy Young, Ohio State Public Defender, and Craig M. Jaquith, Assistant Ohio State Public Defender, Columbus, Ohio, for Appellant.

          Keller J. Blackburn, Athens County Prosecuting Attorney, and Merry M. Saunders, Assistant Athens County Prosecuting Attorney, Athens, Ohio, for Appellee.

          DECISION AND JUDGMENT ENTRY

          Matthew W. McFarland, Judge

         {¶1} This is an appeal from an Athens County Court of Common Pleas judgment entry convicting Appellant, Roxon Kofi Osei, of rape. The trial court imposed an 11-year prison sentence. Appellant asserts the following assignments of error: (1) the trial court erred interpreting R.C. 2907.02(D) to preclude testimony regarding prior sexual activity between Appellant and the victim, C.S.; (2) Appellant received ineffective assistance of counsel, in violation of the Sixth Amendment to the United States Constitution, when his trial counsel failed to object to the presence of several victim advocates during the trial; and (3) Appellant's maximum sentence is clearly and convincingly unsupported by the record.

         {¶2} Regarding Appellant's first assignment of error, we find the trial court did not abuse its discretion in precluding him from introducing evidence of prior sexual activity between him and C.S. With respect to Appellant's second assignment of error, we find his trial counsel was not ineffective for failing to object to the presence of more than one support person at trial. Finally, with respect to Appellant's third assignment of error, we find Appellant's 11-year sentence is not clearly and convincingly contrary to law. Accordingly, we affirm the judgment of the trial court.

         FACTS AND PROCEDURAL HISTORY

         {¶3} In 2017, the State charged Appellant with two counts of rape in violation of R.C. 2907.02(A)(1)(c) [victim is unable to consent to sexual conduct] and R.C. 2907.02(A)(2) [victim is subject to sexual conduct by force or threat of force]. Both are first degree felonies.

         {¶4} On April 19, 2018, Appellant filed a motion to permit the introduction of four instances of alleged past sexual activity between Appellant and C.S. pursuant to R.C. 2907.02(D). Appellant alleged the past activity was consensual, and therefore relevant to whether the alleged rape was, in fact, consensual sexual activity.

         {¶5} The State filed a memorandum contra alleging three of the four instances cited by Appellant did not involve sexual activity, and therefore were not admissible under R.C. 2907.02(D). The State also alleged that the fourth incident of sexual activity between Appellant and C. S. in December of 2016 was not consensual, and consequently was not relevant to the rape charges pending against Appellant.

         {¶6} After an in camera hearing, the trial court issued a judgment entry concluding that three of the four incidents of alleged sexual activity in fact did not involve sexual activity, and consequently were not admissible under R.C. 2907.02(D).

         {¶7} With regard to the fourth incident that occurred in December 2016, the court found (1) that C.S. had consumed alcohol but was not impaired, and (2) the sexual activity between C.S. and Appellant was not consensual. The court recognized the rape charges alleged that on January 10, 2017, C.S.'s "ability to resist or consent was substantially impaired." The court stated that "because the December encounter was not consensual, it has no relevance to Defendant's position that the January sexual activity was consensual." Therefore, the court concluded that although Appellant's "proffer may be material, the inflammatory and prejudicial nature of the material outweighs its probative value." Consequently, the court denied Appellant's motion to introduce specific instances of the victim's past conduct.

         {¶8} The case went to trial. The State's first witness was one of C.S's friends at Ohio University, Sarah Franks, who testified that she, C.S., and Appellant often socialized together. Ms. Franks testified that on January 9, 2017, she, C.S., Appellant, and other friends went to the basement of Stephen's Bar in Athens, Ohio, to celebrate Sarah Franks' and C.S.'s 21st birthdays. Ms. Franks testified that C.S. had "lots of drinks" that night. She testified that she also remembered Appellant drinking as well and that she saw Appellant buy several alcoholic drinks for C.S. that night.

         {¶9} Ms. Franks testified that while Appellant was watching C.S. dance, he told her (Sarah Franks) that "I've got to get [C.S.] tonight." Ms. Franks responded "you know we love you but it's not, she doesn't feel that way about you." She testified that Appellant was in an "intense mood" that night. Ms. Franks testified that she told C.S. that "[Appellant] was just being different" and to "kind of put on her guard a little bit about [Appellant]."

         {¶10} Ms. Franks testified that C.S.'s speech got "sloppy" and she "[s]tumbled throughout the night." She testified that C.S. vomited in the bathroom.

         {¶11} Ms. Franks testified as the party ended, friends helped C.S. up the stairs with a person on either side of her. She testified that she, C.S., and Appellant sat at a booth and at that point, C.S.'s head was on the table of the booth. Ms. Franks testified that Appellant did not appear intoxicated that night.

         {¶12} Ms. Franks testified that she walked home with some other friends and had no more contact with C.S. that night. She testified that she had never seen C.S. that drunk. She testified that at three or four that morning she received a call from C.S. stating that Appellant had raped her.

         {¶13} Another witness for the State, Makayla Benyi, was C.S.'s friend from high school. Ms. Benyi testified that she also attended C.S.'s 21st birthday party at Stephen's Bar. She testified that while getting ready for the party they all drank alcoholic beverages, including C.S. She testified that the party started about 8:00 p.m.

         {¶14} Ms. Benyi's testimony confirmed that C.S. was drinking and that Appellant purchased some of her drinks. Ms. Benyi testified that it "seemed as if [C.S.] always had a drink in her hand throughout the night." She testified that C.S. was "very, very, intoxicated" and "fell multiple times." She testified that she saw C.S. throwing up in the bathroom that night at Stephen's Bar and that eventually she and others effectively carried C.S. upstairs and put her in a booth. She testified that C.S. was slumped over.

         {¶15} Ms. Benyi testified that she, Kathleen Sutton, and Appellant helped C.S. home. Ms. Benyi and others who had come with her were staying the night. Eventually, C.S. was settled in her bed. Ms. Benyi and two other girls left the room to make their sleeping arrangements, but when Ms. Benyi returned to C.S.'s room to retrieve something she had forgotten, she found the door was locked. She testified that she knocked on the door and heard the ruffling of clothes and blankets and a "distinctive belt sound." Ms. Benyi testified that she knocked several more times and Appellant answered. She testified that Kathleen Sutton and Mary Oyster then came to C.S.'s room as well. Ms. Benyi checked on C.S. who just "grunted."

         {¶16} Ms. Benyi told Appellant not to touch C.S. or "I will hurt you." She testified that Appellant "kind of laughed" and said "you must not know what kind of a person I am if you think I would do something like that." Ms. Benyi testified that all three of them left the bedroom and went to the living room, where they discussed the situation.

         {¶17} Ms. Benyi testified that after about five minutes, she returned to C.S.'s room and knocked and again she heard the ruffling and belt noises and then Appellant answered, and he seemed irritated. C.S was still face-down on the bed. Ms. Benyi testified that she did not know what to do and after a couple of minutes she left the room again, but Appellant and C.S. remained. She testified that she was becoming concerned and texted some friends who were still out. She testified that she went back to the room for a third time and knocked. Ms. Benyi testified that she again heard the same noises (ruffling, belt) and it took longer for Appellant to open the door. She testified that she told Appellant that several girls would be sleeping on the floor in C.S.'s room. Ms. Benyi testified that Appellant asked if they could sleep in the hallway, but she said no, and propped open the bedroom door.

         {¶18} Ms. Benyi testified that she went to the living room and met the two girls who had been out and told them everything that had happened. When all three returned to C.S.'s bedroom, the door was closed again. She testified that she did not knock but instead opened the door and saw C.S. and Appellant in bed together covered with blankets. Ms. Benyi testified that she told Appellant to leave, but he protested. She testified that one of the girls had Appellant's phone and said that she would not give it to him until he left. Ms. Benyi testified that Appellant told all three girls to "get the fuck out," and when they did they could hear the ruffling and belt noises. She testified that Appellant then opened the door and exited to retrieve his phone. She testified that she asked C.S. if Appellant touched her and C.S. said "uh/huh." Ms. Benyi testified that she became very upset.

         {¶19} Ms. Benyi further testified that the next morning C.S. told her that she (C.S.) was bleeding. She testified that she asked C.S. if she was having her period. Then she asked C.S. if Appellant had sex with her, and C.S. nodded affirmatively.

         {¶20} C.S testified that she was a student at Ohio University who was going to celebrate her 21st birthday with her best friend Sarah Franks, and her high school friends, Leslie Flynn, Eoin Rude, Makayla Benyi, Kaitlyn Sutton, Mary Oyster and James Laisure at Stephen's Bar on January 9, 2017. C.S. testified that she did not get to eat her dinner before helping to decorate the basement at Stephen's Bar for her party. C.S. testified that Appellant was one of the first persons to arrive. C.S described Appellant as a friend always hanging out as a group. C.S. testified that as other friends arrived, she started drinking. She also remembered that she danced. C.S. testified that friends, including Appellant, were buying her drinks. C.S. testified that she did not remember how she got home.

         {¶21} C.S. testified that the next thing she remembered was Appellant "raping" her that night. C.S. testified that she felt physical pain from the rape as well as shock and confusion. C.S. testified that she did not remember her friends knocking at her bedroom door that night or coming into the room.

         {¶22} C.S. testified that the next morning she noticed her underwear had been taken off. C.S. testified that when she showered her thighs were bruised and her vagina was bleeding. C.S. testified that she told Makayla Benyi that she thought she had been raped. C.S. testified that she went to the hospital and was examined. C.S. reported the rape to the police the next day.[1]

         {¶23} Detective Simpson of the Athens Police Department testified that he interviewed Appellant, who admitted that he had sex with C.S. on January 10, 2017 after her birthday party. Detective Simpson testified that when asked if C.S. was intoxicated, Appellant said that she was "fucked up," and that he had "made a mistake that night." Detective Simpson interpreted Appellant's statement as a confession.

         {¶24} Appellant testified on his own behalf. He testified that he met C.S. his junior year at Ohio University. He, C.S. and three others were friends who would hang out. Appellant testified that prior to C.S.'s birthday he and C.S. made plans to go out to eat at Chipotle and then went back to C.S.'s house. He testified it was then he told C.S. that he loved her. Appellant testified the day after ...


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