Court of Appeals of Ohio, Eleventh District, Portage
Criminal Appeal from the Portage County Court of Common
Pleas, Case No. 2017 CR 00417.
Affirmed in part, reversed in part, and remanded.
V. Vigluicci, Portage County Prosecutor, and Theresa M.
Scahill, (For Plaintiff-Appellee).
M. Heindel, (For Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
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,
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.
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
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
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.
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.
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.
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
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.
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
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").
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.
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.
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
"[1.] The convictions were against the manifest weight
of the evidence.
" There was insufficient evidence against Doak."
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.).
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.
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. We shall therefore proceed to analyze
appellant's sole conviction of rape to determine whether
the state met its burdens.
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.
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
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 ...