Court of Appeals of Ohio, Fourth District, Athens
Timothy Young, Ohio State Public Defender, and Craig M.
Jaquith, Assistant Ohio State Public Defender, Columbus,
Ohio, for Appellant.
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
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.
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.
AND PROCEDURAL HISTORY
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.
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.
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.
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).
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.
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.
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]."
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.
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.
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.
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.
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.
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
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
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
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.
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.
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.
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.
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.
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.
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 ...