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State v. Montgomery

Court of Appeals of Ohio, Fifth District, Stark

December 9, 2019

STATE OF OHIO Plaintiff-Appellee
v.
THEODIS MONTGOMERY Defendant-Appellant

          Appeal from the Stark County Court of Common Pleas, Case No. 2018CR1205

         JUDGMENT: Affirmed

          For Plaintiff-Appellee JOHN D. FERRERO Prosecuting Attorney Stark County, Ohio, KRISTINE W. BEARD Assistant Prosecuting Attorney Appellate Section

          For Defendant-Appellant AARON KOVALCHIK

          Hon. William B. Hoffman, P.J Hon. John W. Wise, J. Hon. Patricia A. Delaney, J. Judges

          OPINION

          Hoffman, P.J.

         {¶1} Appellant Theodis Montgomery appeals the judgment entered by the Stark County Common Pleas Court convicting him of kidnapping (R.C. 2905.01(A)(5) and/or (B)(2)) and rape (R.C. 2907.02(A)(2)) and sentencing him to ten years incarceration. Appellee is the state of Ohio.

         STATEMENT OF THE FACTS AND CASE

         {¶2} A.B. has known Appellant about ten years, as her father is married to A.B.'s sister. A.B. was engaged to Michael Strychalski, who was in prison. While Michael was in prison, A.B. and Appellant would hang out to smoke weed and watch Netflix. However, A.B. eventually realized Appellant was interested in a romantic relationship with her. She did not share his feelings and wanted to remain friends. Appellant gave A.B. money and weed and gave her rides to work in an attempt to win her affection. While she accepted his gifts, she maintained she did not want a romantic relationship with Appellant.

         {¶3} In December of 2017, A.B.'s car broke down. Appellant volunteered to repair her car, and told her to leave the car behind Heggy's Ice Cream in Canton. While he was repairing the car, A.B. learned Appellant had created a fake Facebook page in Strychalski's name, inferring on the page she had engaged in a sexual relationship with Appellant. She confronted Appellant in anger, and Appellant left without finishing the car repairs. A.B. broke off contact with Appellant after this incident.

         {¶4} On March 15, 2018, A.B. was working at Ameridial. Her father called her around 11:00 p.m., asking her to bring him marijuana. Her father and his family were flying to Florida the next morning for vacation. She went to her father's house and smoked weed with him until around 1:00 a.m. Because of the late hour, A.B. decided to spend the night. She made a bed on the floor and went to sleep.

         {¶5} A.B. woke up around 4:00 a.m. when her father told her they were getting ready to leave for the airport. Appellant, who was living at the house, stayed behind. Around 7:00 or 8:00 a.m., she awakened again when she received a call from Strychalski. She fell asleep while on the phone. She was later awakened by Appellant who yelled, "What the F are you here for, why are you here?" Tr. 365. When A.B. tried to get up, Appellant punched her in the face.

         {¶6} Appellant grabbed A.B. by the hands and sat her down on the couch. When A.B. asked to use the bathroom, Appellant walked her to the bathroom and blocked the doorway. A.B. wiped her bloody nose, with a tissue, and threw it in the bathroom trash can. Appellant forced her to the basement, threw a package of zip ties on a table, and asked her to pick her punishment.

         {¶7} Appellant forced A.B. to clean out the dog's kennel. He then grabbed her by the loop in the back of her pants and took her back upstairs to the bathroom. He ordered her to get in the shower. She initially refused, then took her clothes off and got in the shower. Appellant got in the shower with her, and forced her to engage in vaginal intercourse. A.B. was crying, but gave up on fighting Appellant.

         {¶8} Appellant carried A.B. to the couch, where he got on top of her and forcibly engaged in vaginal intercourse with her a second time. She asked Appellant to stop, and he stopped. Appellant gave her a towel and apologized. He cooked some food which he tried to share with her, and washed her clothes.

         {¶9} Appellant agreed to let A.B. go. He walked her to her car. She called her sister and drove to her sister's house. She also called her boyfriend in jail, and the call was recorded. A.B. was crying and upset in the phone call. Her sister urged her to call the police.

         {¶10} A.B. called 911. The dispatcher advised her to go to the hospital. At Mercy Medical Center she was given a sexual assault examination and interviewed by police. A.B. had a broken blood vessel in her eye, pain across her nose, a cut on her lip, and a painful tooth. Photographs of her injuries were taken at the hospital. A.B. was upset and crying while talking to the nurse and to police at the hospital.

         {¶11} Detective Joseph Mongold from the Canton Police Department received verbal consent over the telephone from A.B.'s father to search portions of his house. Det. Mongold recovered a bloody tissue from the bathroom trash can. DNA testing revealed DNA from the semen collected from A.B.'s vaginal swabs was consistent with Appellant's DNA by 1 in one trillion.

         {¶12} Appellant was indicted by the Stark County Grand Jury with one count of kidnapping and one count of rape. Both counts included repeat violent offender specifications. The case proceeded to jury trial in the Stark County Common Pleas Court.

         {¶13} Prior to commencement of trial, the State moved to permit the victim, A.B., to be designated the State's representative and sit at counsel table throughout the trial. The court granted the State's motion.

         {¶14} Appellant's position at trial was he engaged in consensual sex with A.B. Appellant did not testify at trial, but presented the testimony of several family members and a friend, who testified Appellant and A.B. had been involved in a sexual relationship, and she did not appear to have physical injuries following the claimed assault.

         {¶15} The jury found Appellant guilty of kidnapping and rape, but acquitted Appellant on the sexual motivation specification accompanying the kidnapping charge. The court found Appellant guilty of the repeat violent offender specification. The court sentenced Appellant to ten years incarceration on each count, to be served concurrently, for an aggregate term of ten years.

         {¶16} It is from the December 21, 2018 judgment of conviction and sentence Appellant prosecutes his appeal, assigning as error:

I. APPELLANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATE CONSTITUTION WHEN THE TRIAL COURT ALLOWED THE ALLEGED VICTIM TO REMAIN IN THE COURTROOM AS THE STATE'S DESIGNATED REPRESENTATIVE.
II. APPELLANTS CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
III. APPELLANT WAS DENIED HIS RIGHTS TO DUE PROCESS AND OF ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE, I, SECTIONS 10 AND 16 OF THE OHIO CONSITUTION [SIC] ...

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