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State v. Doak

Court of Appeals of Ohio, Eleventh District, Portage

January 13, 2020

STATE OF OHIO, Plaintiff-Appellee,
RICHARD B. DOAK, Defendant-Appellant.

          Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2017 CR 00417.

         Judgment: Affirmed in part, reversed in part, and remanded.

          Victor V. Vigluicci, Portage County Prosecutor, and Theresa M. Scahill, (For Plaintiff-Appellee).

          Edward M. Heindel, (For Defendant-Appellant).



         {¶1} Appellant, Richard B. Doak, appeals from the judgment of the Portage County Court of Common Pleas, after trial by jury, convicting him of rape. We affirm in part, reverse in part, and remand.

         {¶2} On April 19, 2016, S.A. ("mother"), mother of the victim, I.A. (d.o.b. January 24, 2009), left her three children at home with Jason Williams, her live-in boyfriend, while she went to work. The children included I.A., I.A.'s sister, and I.A.'s half-brother. The home is located in Ravenna Township, Portage County, Ohio. While Mr. Williams was doing house work, appellant, mother's uncle, arrived at the residence. When appellant entered the home, Mr. Williams noticed a pronounced odor of alcoholic beverage emanating from him. Appellant asked if he could take I.A. out to his truck. Mr. Williams stated he was uncomfortable with granting the request and declined; appellant made several more requests and when appellant suggested they would only be five or so minutes, Mr. Williams ultimately acceded. After appellant left the home with I.A., Mr. Williams went to the restroom and, upon glancing outside, noticed appellant, I.A., and the truck were gone. He immediately called mother, who called the police. Mr. Williams also contacted I.A.'s maternal grandmother (appellant's sister), Valerie Pantalone, and I.A.'s aunt, Ashley Pantalone.

         {¶3} Portage County Sherriff Deputy Justin Herrera received a call from the Ravenna Police Department regarding an abducted child. He arrived at the Ravenna Police Department and met with the grandmother and aunt, who explained what had occurred and provided the officer with a picture of I.A. Deputy Herrera then drove to the home where he met with Mr. Williams; the officer was also joined by Portage County Sherriff Dep. Matthew Daily. The deputy stated the department was prepared to issue a "BOLO" (Be On the Look Out) to other departments, as well as an Amber alert. While speaking with Mr. Williams, appellant returned to the home with I.A. They had been gone between an hour and a half and two hours.

         {¶4} Appellant was ordered out of the truck and Dep. Herrera approached the passenger side where I.A. was sitting. He noted that she was crying and trembling. The child told the officer that appellant was mean to her and that she repeatedly asked appellant to take her home but he would not. After returning I.A. to her mother and family, Dep. Herrera rejoined Dep. Dailey outside. The deputies engaged appellant and noticed he appeared intoxicated: he had a strong odor of alcohol on his breath, he was swaying, and he had slurred speech. Appellant was asked to perform field sobriety tests, which he declined; he also declined a BAC test. Appellant was ultimately arrested for OVI and additionally charged with child endangering.

         {¶5} The deputies returned to their department where they conferred with Lieutenant Gregory Johnson. Lt. Johnson recommended that, given the circumstances of the report and arrest, Dep. Dailey return to the home and collect the clothing I.A. was wearing while she was with appellant. He subsequently went back and acquired I.A.'s clothing and placed it in an evidence bag.

         {¶6} I.A. was given a bath later that evening. Her Aunt Ashley assisted mother with the bath while the child's grandmother looked on. None of the women noticed any visible injuries on the child. While she was being bathed, however, the child stated appellant "stuck his hand on her hard down there." She would not go into additional details when asked about the comment.

         {¶7} The day after the incident, I.A. had an appointment with her counselor, Jennifer Anders. Ms. Anders had been seeing I.A. since November 2015 due to certain inappropriate behavior which occurred between I.A. and a fellow student. Mother advised Ms. Anders of the incident and reported that appellant had hit I.A. on her thigh. According to Ms. Anders, I.A. confirmed this happened, but did not wish to discuss the matter further. Nothing more was said about the incident for some eight months.

         {¶8} In December 2016, mother was with her two daughters at home when I.A. disclosed that, while visiting her father in Summit County, one of her step brothers made a "love connection" with her. When pressed about what she meant, she indicated the two had "sex." I.A. was subsequently taken to the Children's Advocacy Center ("CAC") in Portage County where she met with Nurse Melinda Andel.

         {¶9} Nurse Andel is a Pediatric Sexual Assault Nurse Examiner and assists families and children who are referred to CAC for concerns of sexual abuse. Nurse Andel stated CAC is a nonprofit, multi-disciplinary organization that coordinates prosecution, law enforcement, child protective services, mental health, medicine, and child advocacy. She stated, upon receiving a referral, she will interview parents or caregivers to obtain a child's medical history and obtain any information the parents possess regarding potential abuse. After speaking with the parents or caregivers, Nurse Andel will conduct a medical examination of the child to determine whether there is any physical evidence of abuse and to ensure the child is not medically compromised. She then conducts an interview with the child, which is recorded. In the course of an interview, Nurse Andel stressed her major concern is to determine whether sexual abuse occurred; and, through the medical information as well as the child's statements, Nurse Andel can properly assess how to diagnose and treat the child and determine what interventions are necessary. In order to accomplish these goals, Nurse Andel stated she builds a rapport with the child, letting him or her know she is a nurse whose goal to ensure the child is healthy and safe.

         {¶10} Upon commencing her interview with I.A., Nurse Andel was able to elicit information regarding a sexual encounter the child had with her step brother. In the course of describing how the encounter occurred, I.A. spontaneously disclosed she had a similar encounter with an adult, who she later identified as appellant. I.A. stated she had "never told a single person," but that appellant had "sex" with her in a men's bathroom at a park. I.A. demonstrated how she was positioned when it happened (laying on her back) and how appellant accomplished the act (on top of her, thrusting with the pelvis). She stated appellant inserted his penis into her vagina and "peed" on her when the incident concluded.

         {¶11} Portage County Department of Job and Family Services ("PCDJFS") was notified of the new allegation and it notified the Portage County Sheriffs Office. CAC sent the Sheriffs Office a narrative of what was disclosed as well as a DVD recording of the interview between I.A. and Nurse Andel. Deputy Marsha Zwick reviewed the information and DVD and ultimately contacted appellant, who agreed to come into the office for an interview. Appellant confirmed he took I.A. to the park on April 19, 2016, but denied any inappropriate conduct. Appellant stated that, while they were at the park, I.A. needed to use the bathroom. He asserted he looked into the men's bathroom to make sure no one was inside, ushered the child in, and stood guard while she used it. At the conclusion of the interview, a sample of appellant's DNA was taken. Dep. Zwick also obtained a sample of I.A.'s DNA and sent each sample along with I.A.'s clothing from the day of the incident to Ohio Bureau of Criminal Investigation ("BCI").

         {¶12} BCI forensic DNA analyst Halle Dreyer analyzed DNA swabs taken from the inside of I.A's underwear and found a mixture of DNA. I.A was the major contributor of the DNA found on the clothing. And, even though there was a relatively significant amount of male DNA (three nanograms), the predominance of I.A.'s DNA served to "mask" the male profile. She further noted, however, that appellant could not be excluded as a male contributor to the DNA found. Ms. Dreyer concluded that the male DNA profile found in the underwear was consistent with appellant and estimated the rarity of the profile is one in 700. She also noted that the presence of three nanograms of male DNA found in the underwear would be inconsistent with a coincidental transfer of DNA onto the clothing.

         {¶13} Appellant was indicted on one count of rape, in violation of R.C. 2907.02(A)(1)(b) and (B), a first-degree felony; and one count of gross sexual imposition, in violation of R.C. 2907.05(A)(4) and (B), a third-degree felony. Appellant pleaded not-guilty. After a competency hearing, I.A. was determined competent to testify. The court additionally held a hearing, pursuant to State v. Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742, to determine whether the video of an interview that had taken place at CAC was admissible and non-violative of the Confrontation Clause. The court determined the statements made by I.A. to Nurse Andel, while hearsay, were made for medical diagnosis and treatment and, furthermore, were nontestimonial. Thus, the court concluded the statements were admissible.

         {¶14} The matter proceeded to a jury trial after which appellant was found guilty of both rape and gross sexual imposition. With respect to the rape count, the jury made the additional finding that the victim was less than 10 years old at the time of the offense. Regarding the gross sexual imposition count, the jury also found the victim was less than 13 years old at the time of the offense. The court referred the matter to the adult probation department for a pre-sentence investigation ("PSI") and report. At the sentencing hearing, the trial court found that the gross sexual imposition count merged with the rape count. The trial court sentenced appellant to life imprisonment without parole eligibility for the rape offense. Notwithstanding the merger, the court also sentenced appellant to five- years imprisonment for the gross sexual imposition count and ordered the terms to be served concurrently. The court also found appellant was a tier III sex offender/child-victim offender and notified him of his registration requirements. He now appeals and assigns four errors for our review. For ease of discussion, appellant's first and second assignments of error will be addressed together. They provide:

         {¶15} "[1.] The convictions were against the manifest weight of the evidence.

         {¶16} "[2] There was insufficient evidence against Doak."

         {¶17} A "sufficiency" argument raises a question of law as to whether the prosecution offered some evidence concerning each element of the charged offense. State v. Windle, 11th Dist. Lake No. 2010-L-0033, 2011-Ohio-4171, ¶25. "[T]he proper inquiry is, after viewing the evidence most favorably to the prosecution, whether the jury could have found the essential elements of the crime proven beyond a reasonable doubt." State v. Troisi, 179 Ohio App.3d 326, 2008-Ohio-6062, ¶9 (11th Dist.).

         {¶18} Alternatively, "a court reviewing the manifest weight observes the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses and determines whether, in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." State v. Velazquez, 11th Dist. Ashtabula No. 2018-A-0027, 2018-Ohio-5068, ¶15 citing State v. Schlee, 11th Dist. Lake No. 93-L-082, 1994 WL 738452, *4-5 (Dec. 23, 1994). "[T]he weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts." State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus.

         {¶19} Appellant argues the state failed to meet its burdens of production and persuasion on both the rape and the gross sexual imposition counts. We must point out the trial court merged these counts. Moreover, during the sentencing hearing, the prosecutor conceded the counts should merge and made a recommendation that the court either sentence appellant to life imprisonment without the possibility of parole or life imprisonment with the possibility of parole in 15 years on the rape count. We shall treat this recommendation as an election and, given this construction, there was no conviction on the gross sexual imposition count.[1] We shall therefore proceed to analyze appellant's sole conviction of rape to determine whether the state met its burdens.

         {¶20} Appellant was convicted of rape, in violation of R.C. 2907.02(A)(1)(b), which provides: "No person shall engage in sexual conduct with another who is not the spouse of the offender or who is the spouse of the offender but is living separate and apart from the offender, when * * * [t]he other person is less than thirteen years of age, whether or not the offender knows the age of the other person." Vaginal intercourse is a form of sexual conduct. R.C. 2907.01(A). "Penetration, however slight, is sufficient to complete vaginal * * * intercourse." Id.

         {¶21} Appellant first contends his conviction was based on insufficient evidence or, alternatively, against the manifest weight of the evidence because there were no scratches or marks on I.A.'s body after the incident. A sexual assault does not automatically require visible physical trauma. Moreover, even though the assault occurred in a public restroom on a concrete floor, photos of the restroom show the floor was constructed of smooth concrete. Physical scratches and the like would not necessarily appear on a smooth surface.

         {¶22} Moreover, Nurse Andel testified that, occasionally, if something has gone inside the vagina, a transection, or tear, is visible. She emphasized, however, such injuries heal quickly and, within a very short time, there would be no visible evidence of an injury. And, with respect to child sexual abuse, an examination would have to occur within 72 hours to reveal physical injuries. She also testified that, under some circumstances, even where there is penetration, a child victim may sustain no injury at all due to the moist and elastic nature of the tissue. Dr. Paul McPherson, a specialist in ...

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