[Cite as In re K.S., 2014-Ohio-188.]
COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
IN THE MATTER OF: JUDGES: Hon. William B. Hoffman, P.J. K.S. Hon. Sheila G. Farmer, J. Hon. Patricia A. Delaney, J.
Case No. 13-CA-21
OPINION
CHARACTER OF PROCEEDING: Appeal from the Fairfield County Court of Common Pleas, Juvenile Division, Case No. DL20120317
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: January 13, 2014
APPEARANCES:
For Appellee For Appellant
GREGG MARX SCOTT P. WOOD Proseucting Attorney Dagger, Johnston, Miller, Ogilive & Hampson By: ZOE A. LAMBERSON 144 East Main St. Assistant Prosecuting Attorney P.O. Box 667 Fairfield County, Ohio Lancaster, OH 43130 239 W. Main St., Ste. 101 Lancaster, OH 43130 Fairfield County, Case No. 13-CA-21 2
Hoffman, P.J.
{¶1} Appellant K.S. appeals his adjudication as a juvenile delinquent on
February 6, 2013 via Judgment Entry entered by the Fairfield County Court of Common
Pleas, Juvenile Division, adjudicating him delinquent by committing rape. Appellee is
the state of Ohio.
STATEMENT OF THE FACTS AND PROCEDURAL HISTORY
{¶2} The following facts are adduced from a bench trial before the juvenile
court. At the time of these events, Appellant was age 17 and a high-school junior; H.T.,
the alleged victim, was 16 and a high-school sophomore. Both attended the same
school. H.T. testified she saw Appellant around school and “liked” him; the two began
texting each other but had little or no contact at school. The two communicated through
texts and social media.
{¶3} The adjudicatory hearing consisted of the testimony of H.T., Officer Daniel
Thomas, and Detective Eric Duemmel of the Lancaster Police Department.
The Testimony of H.T.
{¶4} On April 1, 2012, H.T. was with her mother at her mother’s workplace
when Appellant stopped by in his truck, a Ford Ranger pickup. H.T. and Appellant
talked for a while in the parking lot and Appellant said he needed to get gas. The two
drove to a gas station and then stopped in a mall parking lot near a closed store. H.T.
testified no one was around.
{¶5} Appellant said he was bored and asked H.T. what they should do while
they were sitting in the truck. He “scooted” closer and the two kissed several times.
Appellant placed his hand near H.T.’s crotch area and she said she was on her period Fairfield County, Case No. 13-CA-21 3
even though she wasn’t. He said it was “O.K.” Appellant then took her hand and put it
on his penis; she pulled away; he did it again and she left it there.
{¶6} Appellant was wearing pajama bottoms. H.T. denied unbuttoning
Appellant’s pants. Appellant took “it” out of his pants, grabbed her neck, pushed her
face near his penis, and “it struck [her] in the forehead.” H.T. stated she knew what
Appellant wanted, and she did proceed to engage in oral sex, which did not go on for
very long. She said he then pushed her by her shoulders to lie down. Appellant got out
of the truck. H.T. sat up but Appellant told her to lie back down. Her head now lay over
the seat; Appellant stood in front of her, inside the open truck door, and told her to put
her mouth on his penis. He “finished” in her mouth, she spit in the parking lot, and he
got back into the truck.
{¶7} H.T. stated she did not want to have oral sex with Appellant but felt she
had “no choice.” She said if he hadn’t put his hand on the back of her head, she would
not have performed oral sex. She did not try to get out of the truck because she was
afraid he would try to run her over. She stated, “Um, I mean, I didn’t really know what
was going on, so I just kind of went with everything.”
{¶8} H.T. said there was no discussion of the oral sex. She did not say “stop”
or “no” when Appellant placed his hand on her head. He did not make any threats. She
found it to be “clear” what he wanted.
{¶9} After the incident, Appellant got back into the truck and took H.T. back to
her mother’s office. H.T. denied she asked him how soon he would text her. She
hugged him and he left. She didn’t tell her mother or anyone else what happened for
several days. Fairfield County, Case No. 13-CA-21 4
{¶10} H.T. told her friend M.S. about the incident several days later. M.S. told
her Appellant had raped her older sister. H.T. was also aware of another female who
had a problem with Appellant.
{¶11} H.T.’s father reported the incident to law enforcement on April 7, 2012.
She was upset with her dad for going to the police.
{¶12} H.T. testified she received a text from Appellant around 3:00 a.m. on the
night of the incident, which upset her because she felt he had “used” her. He told her
never to talk to him again, to delete his phone number, and he didn’t like her. H.T. said
this made her upset; she was mad at Appellant and she is still mad at him.
{¶13} On cross examination, H.T. was asked, you claimed you didn’t have a
choice and yet you never said no; how would Appellant have known you didn’t want to
have oral sex with him? She replied, “Because I said I was on my period.”
The Testimony of Officer Thomas
{¶14} H.T.’s father reported the incident to Officer Daniel Thomas of the
Lancaster Police Department on April 7, 2012 as a sexual assault. Thomas did not
speak with H.T.; his role was limited to taking a report, forwarding it to the detective
bureau, and placing the sweatshirt H.T. had been wearing into evidence.
The Testimony of Det. Duemmel
{¶15} Detective Eric Duemmel of the Lancaster Police Department conducts the
majority of the department’s child sexual assault investigations. He testified he is
trained in interview and interrogation techniques, including “kinesic interviewing
techniques,” which involve reading a suspect’s body language and eye movements to
look for indicators of deception. Fairfield County, Case No. 13-CA-21 5
{¶16} Duemmel testified he did not personally interview H.T.; instead, he
arranged for her to be interviewed by the Child Advocacy Center (“CAC”) and watched
her interview on camera in real time from several rooms away. Regarding H.T.’s
interview, Appellee asked, “Based on your kinesic training, did you see any signs of
deception?” Appellant objected and the trial court overruled the objection. Duemmel
stated he saw no signs of deception during H.T.’s interview but he did not interview her
personally, which he stated is “standard practice” once a victim has been interviewed by
the children’s services agency.
{¶17} Duemmel also conducted a recorded interview with Appellant. The tape of
this interview was played during Duemmel’s testimony and is therefore preserved in the
record.
Appellant’s Recorded Statement to Police
{¶18} On April 1, 2012, Appellant had called off work and was home sick,
sleeping late. Thus, he was wearing pajama pants when he stopped at H.T.’s mom’s
office to see H.T. She came out to talk to him in the parking lot and when he said he
needed to get gas, she said she would come along. The pair got gas and then stopped
in a parking lot at the mall.
{¶19} Duemmel asked how the conversation proceeded from small talk to sex.
Appellant said this was the first time the two had ever met outside of school. They had
talked about sex in their text messages, discussing “hooking up” and their respective
sexual histories in previous relationships.
{¶20} The pair was discussing “going all the way” and at what point they had
done so in previous relationships. They started kissing. Appellant stated he was Fairfield County, Case No. 13-CA-21 6
wearing pajama pants with one button; he admitted he placed H.T’s hand on his penis.
He said he unbuttoned his pants and H.T. started giving him a “hand job” for several
minutes. When it became apparent it “wasn’t going anywhere,” he asked her if she
wanted to give him a “blow job.” Despite her initial reluctance, she eventually agreed.
{¶21} Appellant stated the oral sex began while he was sitting in the driver’s
seat; he put up the center console and H.T. laid across the seat with her head near the
steering wheel. Duemmel asked Appellant where his hands were, and Appellant
answered on the window and holding back the center console. Appellant stated they
changed position because he “didn’t want to get ‘it’ on [himself], ” so he exited the truck
and came around to the passenger side. He stood outside the truck with the door open.
H.T. sat up and laid back down facing the other way, with her head toward him, and
resumed oral sex. Appellant stated she was on her stomach with her head out the
passenger-side door. Appellant stated he “finished,” H.T. wiped her mouth off, and sat
up. He then got back in the driver’s side of the truck.
{¶22} Duemmel asked Appellant several times during the interview whether he
ever placed his hand or hands on the back of H.T.’s head and Appellant said no.
Appellant said H.T. never said “no” or indicated she was unwilling to engage in oral sex.
He denied pressuring her to have intercourse. They had specifically discussed
“boundaries” and talked about the fact they had both “gone all the way” too soon with
other people and it hadn’t worked out.
{¶23} Duemmel asked Appellant why H.T. would claim Appellant forced her and
he responded she was mad because he stopped texting her several days later. Fairfield County, Case No. 13-CA-21 7
{¶24} H.T. told Appellant she needed to get back, and they returned to her
mom’s office. He said she “made him” get out of the truck and give her a hug, and told
him to text her when he got home. He did text her upon arriving home and she said
“great.”
{¶25} Appellant said the pair texted on and off for a few more days, before he
became aware she was “spreading their business” around school, after which Appellant
stopped speaking to H.T.
{¶26} Appellant described his truck as a 2002 Ford Ranger pickup truck with a
bench seat and a center console.
{¶27} Thereupon the tape of the interview of Appellant concluded.
Appellant is Charged with Delinquency by Rape
{¶28} Appellant was charged by juvenile complaint with one count of
delinquency by means of rape pursuant to R.C. 2907.02(A)(2) and R.C. 2152.02(F), a
felony of the first degree. Appellant denied the charge and the case proceeded to
bench trial on February 1 and February 6, 2013 before the judge of the Fairfield County
Court of Common Pleas, Juvenile Division.
{¶29} At the conclusion of the trial, the court made the following finding on the
record:
{¶30} “All right. Well, I’m ready to give the Court’s decision. Um, the interesting
part about this case and the evidence in my opinion is that, you know, basically ninety
percent of both sides, the facts were the same. Uh, the, it really boiled down to whether
or not there was force and threat of force, uh, on the part of [Appellant] and the Court
finds that, uh, the testimony of [H.T.] was believable and the statement by [Appellant] Fairfield County, Case No. 13-CA-21 8
was not and therefore, the Court does make a finding of delinquency based on the
count of rape, a first degree felony as it would apply to an adult and, um, we will
proceed from there.”
{¶31} The trial court thereupon found Appellant to be a Tier III sex offender, and
imposed an indefinite term of commitment until age 21, suspended upon a number of
conditions including, among others, his successful completion of intensive probation
and a sex offender evaluation.
{¶32} Appellant now appeals the trial court’s Entry of February 6, 2013
adjudicating him delinquent by means of rape.
{¶33} Appellant raises two assignments of error:
{¶34} “I. THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE TRIAL
COURT’S FINDING OF DELINQUENCY BASED ON RAPE.”
{¶35} “II. THE TRIAL COURT MADE AN EVIDENTIARY RULING DURING
TRIAL THAT WAS UNDULY PREJUDICIAL TO APPELLANT.”
I.
{¶36} In the first assignment of error, Appellant asserts his adjudication on one
count of rape, in violation of R.C. 2907.02(A)(2) is not supported by the sufficiency of
the evidence. We disagree.
{¶37} When reviewing the sufficiency of the evidence in a juvenile case, we
apply the same standard of review applicable to criminal convictions. In re Watson, 47
Ohio St.3d 86, 91, 548 N.E.2d 210 (1989). The standard of review for a challenge to
the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio St.3d 259, 574
N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio Supreme Court Fairfield County, Case No. 13-CA-21 9
held, “An appellate court’s function when reviewing the sufficiency of the evidence to
support a criminal conviction is to examine the evidence admitted at trial to determine
whether such evidence, if believed, would convince the average mind of the defendant’s
guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the
evidence in a light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime proven beyond a reasonable doubt.”
{¶38} In reviewing the legal sufficiency of the evidence to support a verdict by
the trier of fact, it is the mind of the trier of fact, rather than the reviewing court, that
must be convinced. State v. Thomas, 70 Ohio St.2d 79, 434 N.E.2d 1356 (1982). In
applying this standard of review, the question of credibility of conflicting testimony and
the weight to be accorded certain evidence are matters left primarily to the trier of fact.
State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967).
{¶39} A reviewing court should not disturb the decision below unless it finds that
reasonable minds could not reach the conclusion reached by the trier of fact. Jenks,
supra, 61 Ohio St.3d at 273.
{¶40} Appellant was found delinquent by rape pursuant to R.C. 2907.02(A)(2),
which reads, “No person shall engage in sexual conduct with another when the offender
purposely compels the other person to submit by force or threat of force. “
{¶41} “Force” means any violence, compulsion, or constraint physically exerted
by any means upon or against a person or thing. R.C. 2901.01(A)(1). Force or the
threat of force “can be inferred from the circumstances surrounding sexual conduct.”
State v. Schaim, 65 Ohio St.3d 51, 600 N.E.2d 661(1992), at paragraph one of the
syllabus. In order to make a finding of force under R.C. 2907.02, “some amount of force Fairfield County, Case No. 13-CA-21 10
must be proven beyond that force inherent in the crime itself.” State v. Dye, 82 Ohio
St.3d 323, 327, 695 N.E.2d 763 (1998). The Ohio Supreme Court has explained the
force necessary to commit rape depends upon the respective age, size, and strength of
the parties and their relation to each other. State v. Eskridge, 38 Ohio St.3d 56, 58, 526
N.E.2d 304 (1988). “Thus, the context of the rape will also affect our inferences
regarding the additional element of force or threats of force.” State v. Kaufman, 187
Ohio App.3d 50, 71, 2010-Ohio-1536, 931 N.E.2d 143 (7th Dist.)
{¶42} Upon review of the evidence presented at the adjudicatory hearing, we
find, when viewed in a light most favorable to the prosecution, a rational trier of fact
could have found the essential elements of the crime proven beyond a reasonable
doubt. The testimony presented at the hearing by H.T. alleges Appellant took his penis
out of his pants, placed his hand on the back of H.T.’s head and pushed her head near
his penis. H.T. testified she did not want to engage in oral sex with Appellant, but felt
she had no choice. H.T. testified Appellant used “enough force” to push her head down
towards his penis. She further testified she felt she had no choice but to engage in the
act of oral sex.
{¶43} Appellant’s first assigned error is overruled.
II.
{¶44} In the second assignment of error, Appellant contends the trial court
admitted prejudicial evidence in allowing Detective Duemmel to testify as to the “kinesic
interview technique,” and his resulting opinions as to the credibility and truthfulness of
H.T. and Appellant. We agree. Fairfield County, Case No. 13-CA-21 11
{¶45} At the adjudication hearing on February 1, 2013, Detective Duemmel
testified as to his training in “kinesic interviewing,” and his perception as to H.T.’s CAC
interview, which he watched in real time via video:
{¶46} “Q. Okay. Um, and you said something about, was it kinesic?
{¶47} “A. Kinesic interviewing, yes.
{¶48} “Q. Can you explain what kind of training that is?
{¶49} “A. Yes, um, kinesic interviewing deals specifically with reading body
language, um, eye movements, um, the way the body moves when people are, are
speaking and signs that they give, uh, when, that indicate that they might be deceptive.
{¶50} “Q. And how is that useful in your work?
{¶51} “A. Um, when we’re interviewing suspects, it’s a good way just to get an
overall gist of their story and how it flows and what signs they’re giving off while they’re
telling that story.
{¶52} “Q. Do you use, um, do you use those techniques in all the interviews you
conduct?
{¶53} “A. Yes, I do.
{¶54} “* * *
{¶55} “Q. And did you do that for H.T. in this case?
{¶56} “A. Yes, I did.
{¶57} “Q. (Inaudible) are you familiar with a person by the name of H.T.?
{¶58} “A. Yes, ma’am, I am.
{¶59} “Q. And were you involved with an investigation of a sexual assault
alleged by H.T.? Fairfield County, Case No. 13-CA-21 12
{¶60} “A. Yes, I am.
{¶61} “Q. Did you, uh, do you observe the CAC videos when you are involved
with that case?
{¶62} “A. Yep. Uh, yes, I do.
{¶63} “Q. Okay. Is that like in real time, are you watching them, how do you
observe them?
{¶64} “A. Whenever possible, I watch them in real time. It’s, uh, there’s a
separate room, it’s two rooms away from the interview room, and there’s a video feed
that allows me to watch it on a TV. It’s mounted on the wall.
{¶65} “Q. Okay, Um, now, when you watch those, um, do you (pause) you talked
about using that kinesic training in, um, like when investigating, when speaking with
suspects. Do you ever apply that training to watching witness interviews and things like
that?
{¶66} “A. Yes, I do.
{¶67} “Q. Okay. And, um, did you watch H.T.’s CAC interview?
{¶68} “A. Yes, I did.
{¶69} “Q. Did you watch it in real time?
{¶70} “A. Yes, I did.
{¶71} “Q. Okay. And did you see any, based on your experience with kinesic
training, did you see any indications of deception during her interview?1
{¶72} “* * *
1 Appellant’s counsel objected to the testimony of Detective Duemmel regarding his kinesic interviewing techniques and application thereof based upon lack of scientific foundation and the witness’ ability to determine whether an individual was truthful. The trial court overruled the objection. Fairfield County, Case No. 13-CA-21 13
{¶73} “Q. Let me back track actually. What are some signs of deception that
you commonly see or you’re trained to look for?
{¶74} “A. Um, some of the signs are when someone is talking, they’ll self-groom.
Um, so they’ll play with their hair; they’ll try to wipe stuff off their clothes. Another is
they obviously, they won’t make eye contact. Um, through the kinesic interviewing,
we’re also taught to, um, when applicable which really wouldn’t have been in a viewed
interview where you’re watching a TV, but you can see eye direction. Um, the way
people answer questions on a baseline and then you use that baseline as you ask
different questions, you can watch their eye movement and you can see how their eyes
move and that tells you, can indicate to you which part of the brain, um, that they’re
using to formulate their answer. Um, some things like covering their mouth when
they’re talking. Um, I mean, those are just a few of the, the most common, um, signs
that we look for.
{¶75} “Q. Okay. Um, and then going back now to the original question,
when watching H.T.’s CAC interview, did you observe any of these indicators of
deception?
{¶76} “A. No. I did not.”
{¶77} Tr. at 106; 108-109;110-111. (Emphasis added.)
{¶78} Detective Duemmel then testified as to his interview with Appellant, and
his application of his kinesic interview training during the interview:
{¶79} “Q. Um, (pause) after H.T. was interviewed at the CAC, um, what steps
did you take after that?
{¶80} “A. I ended up making contact with K.S. to speak with him. Fairfield County, Case No. 13-CA-21 14
{¶81} “Q. And is that K.S.?
{¶82} “A. Yes, it is.
{¶83} “Q. Okay. And why did you make contact with K.S.?
{¶84} “A. Because she indicated, um, that he was the one that was involved in
this case.
{¶85} “* * *
{¶86} “Q. Um, okay, well I want to go back, obviously, to a little bit about this.
(Inaudible)
{¶87} “A. Kinesic interviewing?
{¶88} “Q. Kinesic, right. Um, and is this more of the contact that you were
referring to when you said you utilized that investigative tool?
{¶89} “A. Yes.
{¶90} “Q. Okay. And did you use that in this interview?
{¶91} “A. Um, I didn’t use that exact technique, to do the eyes, but I did do the
body language reading.
{¶92} “Q. Okay. And, um, can you go through what you, what you visualized as
far as that goes?
{¶93} “A. Um, yeah, he didn’t have, I mean, he didn’t do a lot of tells, um, in
using your kinesic interviewing. Um, he stayed pretty open, um, and facing me, so like I
told him in the video, you know, I thought, um, most of this stuff was truthful. Um, the
big tell that I got from him was, um, the extra long pauses when it came to the point of
exact interest. The way he was able to tell the story very thoroughly up to the point of
what we were specifically talking about and then he’d have an extra long pause where Fairfield County, Case No. 13-CA-21 15
he would just wait, wait, what seemed like, as you were watching, just seems like an
abnormal amount of time in order to answer the question.
{¶94} “Q. Okay. And again, what did you indicate that that’s indicative of?
{¶95} “A. Uh, deception.
{¶96} “* * *
{¶97} “Q. Um, okay, now K.S. said, um, he said that he asked her to give her, to
give him a blow job and that she finally agreed, is that right?
{¶98} “A. I believe that’s the gist of what he said, yes.
{¶99} “Q. Okay. Um, and then when he said that, he said that’s a detail that
would make it sound like I forced her, when he was talking about putting her hand on
his head? Or his hand on her head? Um, do you recall if that was a time when you
noticed an indicator of deception?
{¶100} “A. Um, I did not.
{¶101} “Q. Okay. Um, (pause) um, and he also indicated that he texted for three
to four days after the incident, um, do you know that if that’s true or not? Did you ever
follow up on that?
{¶102} “A. I don’t think I followed up on that.
{¶103} “Q. Okay. Um…
{¶104} (Pause)
{¶105} “Q. But he and, um, he did acknowledge that he placed her hand on his
penis, correct?
{¶106} “A. Yes. Fairfield County, Case No. 13-CA-21 16
{¶107} “Q. Um, is it common for people to allege oral sex as a form of rape
(inaudible)?
{¶108} “A. Not in my experience.
{¶109} “Q. Okay.
{¶110} (Pause)
{¶111} (Inaudible)
{¶112} “Q. Okay. Um, just one last thing, I’m just, for a little clarification.
When you said that you noticed the deceptive indicators, um, about the main
points of interest, can you specify what those points are that you’re talking
about?
{¶113} “A. Yes, it was specifically about how the oral sex started. You
know, initially when we first asked, um, how it started, there was a really long
pause to give an answer. He couldn’t remember how the oral sex started, um,
which that would be an indication of deception because most people would be
able to recall specifically how something like that started. Um, as we progress,
every time we kind to get to how sex started or where her hands and stuff were,
again, there’s a long pause that would be a deception. Along with this, you pointed
out some of the, um, seems minor, but the inconsistencies in (inaudible) was he getting
off work or was he going to town to get medication because he was sick. Uh, some
other, you know, some other things like that that popped up during the course of
the interview that indicated that if it had been a truthful story, um, those points
would have stayed consistent throughout the whole story from the beginning all
the way up to that last time we talked. Fairfield County, Case No. 13-CA-21 17
{¶114} “Q. And did you notice, um, when, um, viewing H.T.’s CAC, did you
notice any inconsistencies in her story?
{¶115} “A. No, hers seemed very, pretty consistent throughout the whole,
uh, interview.”
{¶116} Tr. at 112; 229-230; 238-240. (Emphasis added.)
{¶117} On cross-examination, Detective Duemmel testified:
{¶118} “Q. Thank you. Now, this technique that you’ve testified about, and I’m
sorry, I didn’t catch it, is it kinesic?
{¶119} “A. Kinesic interviewing.
{¶120} “Q. Can you spell that for me?
{¶121} “A. K-I-N-E-S-I-C.
{¶122} “Q. I-C?
{¶123} “A. I-C.
{¶124} “Q. I-C? Okay.
{¶125} “A. Kinesic.
{¶126} “Q. All right. And is there some scientific foundation to this methodology?
{¶127} “A. I believe there is.
{¶128} “Q. And do you have that with you?
{¶129} “A. I do not.
{¶130} “Q. Okay. Can you give us the person who conducted this scientific
testing behind it? One person?
{¶131} “A. I’m sure I could from notes, but I can’t off the top of my head. Fairfield County, Case No. 13-CA-21 18
{¶132} “Q. Okay. Um, and before we watched that lengthy, uh, interview, you
said the things that you look for were self-grooming, eye move, eye movement and
cover, covering the mouth while talking, is that correct?
{¶133} “A. That’s some of them, yes, sir.
{¶134} “Q. Those were the three things that you mentioned before we watched
the interview.
{¶135} “A. Yeah.
{¶136} “Q. And when I was watching that interview, um, did you ever see K.S.
self-grooming when he was talking to you?
{¶137} “A. No.
{¶138} “Q. Did you ever see him, uh, with, with, uh, unusual eye contact?
{¶139} “A. Um he did have some pointes where he would look instead of looking
at me, he would look down when he was talking to me, like he didn’t want to look me
directly in the eye.
{¶140} “Q. But from where I was watching, he pretty much looked you right in the
face the entire interview, didn’t he?
{¶141} “A. For the most part, yes, sir.
{¶142} “Q. Okay. And did he ever cover his mouth while he was talking?
{¶143} “A. No.
{¶144} “Q. So the three things that you said you look for, you, you, you didn’t see
those in K.S.’s interview?
{¶145} “A. I believe when I testified earlier, I said those are some of the items that
we look for that were most common. And no, I did not see those in K.S.’s interview. Fairfield County, Case No. 13-CA-21 19
{¶146} “Q. You did not see those. Thank you.
{¶147} “A. Yes, sir.
{¶148} “Q. But the one thing that you did mention, the one thing that led you to
believe he was being deceptive were these long pauses before his responses?
{¶149} “A. That’s correct.
{¶150} “Q. Is everyone who gives a long pause before a response lying?
{¶151} “A. No, not always.
{¶152} “Q. No? Okay. So that’s not a conclusive way to tell if someone is lying,
is it?
{¶153} “A. Correct.
{¶154} “Q. So someone could give a long pause just because they’re trying to
remember events that occurred days, weeks or months prior, correct?
{¶155} “A. Could be true.
{¶156} “Q. And that’s the only indicator that you picked up on that he was
deceptive?
{¶157} “A. Along with…
{¶158} “Q. The long pause?
{¶159} “A. Along with the inconsistencies, um, in some of the details about how
he got there and how the sex, the oral sex got started.
{¶160} “Q. Well, when you say inconsistencies, you’re talking about inconsistent
with her statement.
{¶161} “A. No, with his.
{¶162} “* * * Fairfield County, Case No. 13-CA-21 20
{¶163} “Q. You were trying to get him to confess. Correct?
{¶164} “A. I was trying to get him to tell me the truth about what happened.
{¶165} “Q. No, no, you were trying to get him to say something, to tell you
something that was consistent with what she told you, correct?
{¶166} “A. I was trying to get him to tell me the truth about what happened.
{¶167} “Q. Right.
{¶168} “A. And if that was consistent with her, then…
{¶169} “Q. But that was your baseline. If, if, if he said anything that was
inconsistent than what she told you, you told him that’s not right?
{¶170} “A. Correct.
{¶171} “Q. Okay. So you used her story as the baseline truth?
{¶172} “A. Correct.
{¶173} “Q. You made an assumption that what she was telling was the
truth?
{¶174} “A. Correct.
{¶175} “Q. And if he told you anything different, you did not accept that as the
truth? Correct?
{¶176} “A. I pressed him on it. I think I accepted some of his other, um…
{¶177} “Q. So this was not a, this was not a neutral interview?
{¶178} “A. No.
{¶179} “Q. You wanted him to tell you certain things?
{¶180} “A. Yes. Fairfield County, Case No. 13-CA-21 21
{¶181} “Q. And if you [sic] didn’t tell you certain things, you were going to press
him on it?
{¶182} “A. Correct.”
{¶183} Tr. at 244-247; 250-251. (Emphasis added.)
{¶184} Pursuant to Evid.R. 402 and Evid.R. 702, expert testimony is admissible
whenever it is relevant and can assist the trier of fact. State v. Williams (1983), 4 Ohio
St.3d 53, 58, 4 OBR 144, 148, 446 N.E.2d 444, 447–448. Even relevant evidence,
however, must be excluded if its probative value is outweighed by danger of unfair
prejudice, confusion of issues, and it is misleading the jury. Evid.R. 403. Novel expert
testimony to assist the trier of fact must also be based upon principles that have been
accepted by the scientific community. State v. Koss (1990), 49 Ohio St.3d 213, 551
N.E.2d 970. (Battered woman syndrome has gained substantial acceptance to warrant
admissibility.) If the subject matter of an expert's opinion is not accepted scientific
evidence, an expert opinion is not helpful, for it is based upon an unreliable premise.
State v. McMillan (1990), 69 Ohio App.3d 36.
{¶185} Upon review of the record, we find the trial court erred in allowing the
testimony of Detective Duemmel as to his kinesic interview training and application
thereof. The “science” of kinesic interviewing was not established by the State to be
based upon principles widely accepted in the scientific community. Furthermore, the
testimony of Detective Duemmel as to H.T.’s credibility and lack of any indicators of
deception as compared to his perception of Appellant as demonstrating indicators of
deception and his opinion as to Appellant being untruthful compared to H.T.’s testimony
was prejudicial. The testimony of Detective Duemmel should have been excluded. Fairfield County, Case No. 13-CA-21 22
{¶186} Whereas here, the case involves a victim and a defendant with similar
versions of most underlying events and force versus consent is the disputed issue, we
find the trial court erred in allowing the testimony of the only investigating and
interviewing officer as to a non-scientific method of determining credibility and
truthfulness. In this case, the trier of fact determined Appellant was not believable and
H.T. was believable. We find the improperly admitted testimony prejudicial to Appellant.
{¶187} Appellant’s second assignment of error is sustained.
{¶188} Appellant’s adjudication in the Fairfield County Court of Common Pleas,
Juvenile Division, is reversed, and the matter remanded to the trial court for further
proceedings in accordance with the law and this opinion.
By: Hoffman, P.J.
Delaney, J., concurs in part and dissents in part
Farmer, J., dissents Fairfield County, Case No. 13-CA-21 23
Farmer, J., dissents
{¶189} I respectfully dissent from the majority's view in Assignment of Error II.
Detective Duemmel specifically testified he did not observe any indication of deception
by H.T. during her interview as opposed to testifying about her truthfulness. T. at 111.
In addition, further on in direct and also on cross-examination, Detective Duemmel
testified he did not observe any indication of deception by appellant during his interview
except at hesitating when describing the oral sex performed on him. T. at 246. In fact,
defense counsel took advantage of Detective Duemmel's experience and used the lack
of indicators to establish appellant's truthfulness during his police interview.
{¶190} I would find any error to be harmless in that the minimal impact of the
testimony did not unduly prejudice appellant. Fairfield County, Case No. 13-CA-21 24
{¶191} I respectfully dissent from the majority opinion in regards to the disposition
of Appellant’s first assignment of error. Upon review of the record, I am unable to
conclude appellee presented sufficient evidence of force or threat of force as required
pursuant to R.C. 2907.02(A)(2). I note the following testimony upon direct
examination:2
* * * *. Um, he did take it out of his pants and grabbed my neck and
pushed it near his penis and it hit me in the forehead. And I, I
guess I kind of knew what he wanted me to do at that point. Um, I
did give him a blow job and um, it didn’t go on for very long. * * * *.
* * * *. Um, when he was walking back around [the truck], I sat
back up and when he opened the door, he told me to lay back
down and I did and, um, my head was laying over the seat and the
door was open and he was standing like in front of me. And he told
me to put my mouth on his penis and he finished in my mouth and I
spit it out on the parking lot ground and then he got back in the
truck.
{¶192} Further, the following conversation took place on direct examination:3
Q. Now, just to recap, you said you kissed a few times, correct?
A. Yes.
Q. Did you want to do that?
2 T. 14. 3 T. 15-17. Fairfield County, Case No. 13-CA-21 25
A. Um, yeah.
Q. And did you, you did give him oral sex?
A. Um, hum.
A. No.
Q. Why did you?
A. Because I felt like I had no choice.
Q. If [appellant] had not put his hand on your head, as you testified
before, would you have performed oral sex on him?
(Pause)
Q. [], at any point, did you try to get out of the car and leave?
Q. Why not?
A. Honestly, if I felt like, or I felt like if I got out of the truck, um, he
would run me over.
Q. You felt like he would run you over?
Q. What were, what were you feeling like during this encounter?
A. I was scared.
Q. Scared? What were you scared of? Fairfield County, Case No. 13-CA-21 26
A. Um, I mean, I really didn’t know what was going on, so I just
kind of went with everything.
Q. Did you perform oral sex because you wanted to?
{¶193} Later, upon cross examination:4
* * * *.
Q. How did, how did his penis, uh, get out?
A. He took it out.
Q. And you saw he was doing that?
Q. Okay. And did you want that to happen?
Q. You didn’t want his penis to come out?
Q. Okay. So what did you say?
A. I didn’t say anything.
Q. Okay. You didn’t say don’t do that?
Q. You didn’t say stop?
4 T. 39-54. Fairfield County, Case No. 13-CA-21 27
Q. So although he’s getting his penis out during this make-
out session and you don’t want that to happen, you didn’t
say stop?
Q. After his penis was out, where was your hand?
Q. It was on his penis, wasn’t it?
Q. Okay. And what was your hand doing on his penis?
A. Nothing.
Q. It was just holding it?
A. Yep.
Q. It wasn’t, you know what a hand job is?
Q. Were you giving him a hand job?
Q. Are you sure about that?
Q. But your hand was on his penis doing nothing?
Q. You were not giving him a hand job?
A. No. Fairfield County, Case No. 13-CA-21 28
Q. And then there was a discussion about, um, a blow job,
wasn’t there?
A. I don’t recall that.
Q. You don’t recall that?
Q. Um, you don’t recall him asking you to give you (sic) a
blow job?
Q. Or for you to give him a blow job, I’m sorry?
Q. Now, it’s your testimony that he, he took his hand and,
around your neck?
Q. And forced you down?
Q. Um, how much force was used?
A. Enough to push me down.
Q. Did he squeeze your neck?
Q. Did he grab, you have long hair, was it under your hair,
was it on top of your hair?
A. I don’t know.
Q. Was your hair down like it is today? Fairfield County, Case No. 13-CA-21 29
Q. So was it, was it on your hair or was it under your hair on
your neck?
Q. Did he pull your hair?
Q. When he reached and grabbed your neck, uh, was it his
right hand or his left hand?
A. His right hand.
Q. His right hand. Uh, he just used one hand?
Q. Uh, did you, when he, I, I assume you saw him reaching
for your neck, is that correct?
Q. And at the time he was reaching for your, you saw him
reaching for your neck, your hand was still on his penis?
Q. And you had not moved it?
Q. You had the opportunity to move it, but you didn’t?
Q. So as you saw him reaching with his hand for the back of
your neck, did you say anything to him? Fairfield County, Case No. 13-CA-21 30
Q. You didn’t say what are you doing?
Q. And then he, he, you said that he takes the back of your
neck and he starts to push it towards his lap, towards his
penis?
Q. Okay. At that point, it became clear to you what, at least
what he wanted?
Q. And what did you say?
A. I don’t think I said anything.
Q. You didn’t say anything. You didn’t say stop?
Q. You didn’t say I don’t want to?
Q. You didn’t say anything. Uh, did you attempt to, uh,
remove your head, uh, your neck from his hand to try to get
away from him?
A. No. Fairfield County, Case No. 13-CA-21 31
Q. You didn’t try to get away? Not at all?
Q. So as he was moving your head towards his penis, you
said that when you got close to his penis, your, his penis hit
your forehead?
Q. And at that point, did you say anything?
Q. Now, at this point, your, your face is near his penis,
correct?
Q. You know what he wants?
Q. You haven’t said no, right?
Q. You haven’t told him you didn’t want to, right?
Q. Did he ever, did he at that point threaten you?
Q. He never threatened you, did he?
Q. So how did your mouth get on his penis?
(Pause) Fairfield County, Case No. 13-CA-21 32
A. I put it there.
Q. You put it there.
Q. So you, at that point, as you testified, gave him a blow
job?
Q. Okay. And just so we’re clear, that is, uh, that’s oral
sex?
[H.T. describes appellant exiting the truck after a few
minutes of oral sex and coming around to her side.]
Q. * * * *. Okay. So he gets, he opens the passenger door
and you’re seated in the passenger seat, correct?
Q. How did you get to that point?
A. He told me to lay back down.
Q. He told you to lay back down?
Q. So he didn’t, he didn’t push you down, he didn’t pull you
down, he didn’t force you down?
Q. He just said lay back down the way you were? Fairfield County, Case No. 13-CA-21 33
Q. And you have the option to say no? Correct?
Q. You had the option not to do it?
Q. But you didn’t?
Q. So you laid back down and if I understand your
testimony, you leaned your head , head back that way?
Q. He inserted his penis in your mouth?
Q. How did he get your mouth open?
A. He told me to put my mouth on it.
Q. Okay. So he didn’t slap you?
Q. He didn’t threaten you?
Q. He said “Put your mouth on it” and you did?
A. Yeah.
Q. Did you say no?
A. No. Fairfield County, Case No. 13-CA-21 34
Q. Did you say, “I don’t want to?”
Q. You didn’t?
Q. He finished in your mouth, is that correct?
Q. And then, um, you said that you, you spit it on the
parking lot?
Q. And did you tell the officer that? When you, ultimately
you spoke to law enforcement, correct?
A. My dad did.
Q. Okay. You never spoke to law enforcement?
A. Not me directly.
{¶194} I do not take the decision lightly in reversing the decision of the trial court.
This matter implicates a first-degree felony with significant consequences for all
involved. I am also mindful that we are not in the best position to judge the credibility of
the witnesses. However, in reviewing the sufficiency of the evidence in the light most
favorable to appellee, I conclude a rational trier of fact would not be convinced of
appellant’s guilt beyond a reasonable doubt. Appellee presented insufficient evidence
of force. Without more, such evidence does not warrant a delinquency adjudication for Fairfield County, Case No. 13-CA-21 35
rape. In re L.R.F., 8th Dist. Cuyahoga No. 97905, 2012-Ohio-4284, 977 N.E.2d 138, ¶
26.
{¶195} I have compared the evidence in this case to the evidence in other cases
of rape involving allegations of forced oral sex. I do not find the allegation of appellant’s
hand on the back of H.T.’s neck to be insufficient per se, but from the context of the
entire incident, a reasonable person find the element of force to be lacking. This case is
distinguishable from those in which evidence exists of a hand on the head plus other
indications of force: an inherently coercive relationship between parties of disparate size
and age [In re N.K., 8th Dist. Cuyahoga No. 82332, 2003-Ohio-7059 (10-year-old
offender threatened five-year-old victim that he would tell her friends not to play with her
and pushed her head down to gain compliance)]; a family relationship which established
the victim’s will was overcome by fear [State v. Toth, 9th Dist. Lorain No. 05CA0008632,
2006-Ohio-2173 (victim observed mother in physically abusive relationship with offender
who was also her father)]; overt verbal and physical resistance by the victim plus overt
force applied by the offender [State v. Martinez, 12th Dist. Clinton No. CA2005-08-013,
2006-Ohio-2718 (offender cornered victim, held his head down, and attempted to force
victim to perform oral sex as victim tried to pull away)]; [State v. Wallace, 8th Dist.
Cuyahoga No. 86794, 2006-Ohio-2735 (offender touched victim’s vagina and breasts
and pushed her head down forcibly, forcing his penis into her mouth despite her crying
and resisting)]; [State v. Ball, 4th Dist. Hocking No. 07CA2, 2008-Ohio-337, appeal not
allowed, 118 Ohio St.3d 1463, 2008-Ohio-2823, 888 N.E.2d 1114 (victim protested as
offender attempted to force her head near his penis, stating she didn’t want to do this)]. Fairfield County, Case No. 13-CA-21 36
{¶196} As another appellate court stated in a case with a similar outcome, “[w]e
are aware that the facts of this case are sensitive, and we do not condone [appellant’s]
behavior. However, we are bound to follow the law objective and apply it justly.” State
v. Theodus, 8th Dist. Cuyahoga No. 97290, 2012-Ohio-2064, ¶ 48. I find appellee failed
to present sufficient evidence to sustain appellant’s conviction for rape. Therefore, I
would sustain Appellant’s first assignment of error.
{¶197} I further concur with the disposition of Appellant’s second assignment for
the reasons stated by Judge Hoffman.