from the Stark County Court of Common Pleas, Case No.
Plaintiff-Appellee JOHN D. FERRERO Prosecuting Attorney Stark
County, Ohio, KRISTINE W. BEARD Assistant Prosecuting
Attorney Appellate Section
Defendant-Appellant AARON KOVALCHIK
William B. Hoffman, P.J Hon. John W. Wise, J. Hon. Patricia
A. Delaney, J. Judges
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.
OF THE FACTS AND CASE
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
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.
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.
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.
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
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.
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
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.
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.
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
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
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.
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.
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
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
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]