[Cite as State v. Hardy, 2024-Ohio-1107.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HENRY COUNTY
STATE OF OHIO, CASE NO. 7-23-10 PLAINTIFF-APPELLEE,
v.
THOMAS J. HARDY, OPINION
DEFENDANT-APPELLANT.
Appeal from Henry County Common Pleas Court Trial Court No. 22 CR 0100
Judgment Affirmed
Date of Decision: March 25, 2024
APPEARANCES:
Austin C. Buchholz for Appellant
Gwen Howe-Gebers for Appellee Case No. 7-23-10
WILLAMOWKSI, P.J.
{¶1} Defendant-appellant Thomas Hardy (“Hardy”) brings this appeal from
the judgment of the Henry County Court of Common Pleas finding him guilty of
one count of rape and sentencing him to prison. Hardy challenges the conviction
claiming that it was not supported by sufficient evidence and was against the
manifest weight of the evidence. For the reasons set forth below, the judgment is
affirmed.
{¶2} On July 27, 2022, the Henry County Grand Jury indicted Hardy on one
count of rape in violation of R.C. 2907.02(A)(2), (B), a felony of the first degree.
A jury trial was held on May 18 and 19, 2023. At trial, the following testimony was
presented.
{¶3} The victim in this case testified that in June of 2021, she had been at a
party with her family members and Hardy. Afterwards, Hardy and the victim’s
sister, who was Hardy’s fiancé at that time, took the victim back to their home. The
victim admitted that on the night of the alleged rape, she had been drinking. The
victim went into a bedroom and began texting with a friend when Hardy entered the
room and started kissing her. The victim testified that she attempted to push Hardy
away, but he did not stop. Hardy then pulled down her shorts and inserted his penis
into her vaginal cavity. Hardy then flipped her onto her stomach and inserted his
penis into her vaginal cavity again. The victim indicated that Hardy ejaculated onto
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her body. Afterwards, Hardy pulled up his shorts and left the room. The victim
then texted her friend that something had happened and changed from pink and
white shorts into blue and white shorts. The victim indicated that although she did
not say anything while the alleged rape was occurring, she was crying. The victim
later went home and put the shorts in a bag.
{¶4} In April of 2022, the victim was babysitting for Hardy and her sister.
Once everyone returned to the house, the victim was sleeping on the couch in the
living room. Hardy came into the living room and attempted to touch her, but the
victim pushed him away. The victim then texted her brother who called the victim’s
parents. The victim’s parents then came to get the victim. The victim admitted that
she did not tell her parents everything that had happened until after the police
arrived. After speaking with the police, the victim turned over the shorts. The
victim identified the shorts as exhibits 1 and 1A during the trial. The victim testified
that she did not wish to engage in sexual conduct with Hardy and the intercourse
was not voluntary. The victim also indicated that when the alleged rape began she
tried to push him away.
{¶5} On cross-examination the victim stated that she did not remember
giving a statement to the doctor at the hospital, just that the doctor performed an
exam. The victim admitted to having two or three drinks and smoking marijuana at
the party before the alleged rape. The victim testified that she was drinking shots
of a clear liquid. Before the victim reached Hardy’s home, she was getting sick
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because of drinking too much. The victim testified that she borrowed the blue and
white shorts from her sister. When Hardy entered the bedroom, the victim was
wearing the pink and white shorts. When questioned about the penetration, the
victim admitted that she had previously stated she did not know if there was
penetration. However, the victim testified that she was sure there was penetration,
but not sure if it was vaginal or anal. The victim also admitted that she did not cry
out when Hardy began assaulting her. The only person the victim told at that time
was a friend. The shorts sat in a corner of the victim’s room for the months between
when the alleged rape occurred and when the victim told her parents.
{¶6} Kaitlyn S. (“Kaitlyn”) testified that she and the victim are “best
friends.” In April of 2022, the victim sent Kaitlyn a text message telling her that
Hardy “was trying to make a move on [the victim] and [the victim] was
uncomfortable and wanted somebody to call her so that he would stop.” Tr. 184.
Kaitlyn was not able to call because it was late. Eventually, the victim called her
brother and her family went to Hardy’s home. Prior to that night, the victim had
told Kaitlyn about the alleged rape the morning after it happened, indicating that
Hardy had raped the victim. Kaitlyn told the victim to keep her clothes as evidence.
The victim had also told another friend of theirs. After the alleged rape, the victim’s
behavior changed and she seemed to stop caring about herself. Once Hardy was
arrested, the victim seemed to be more herself. On cross-examination Kaitlyn
testified that the text messages from the victim were sent on Snapchat and were
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automatically erased. The victim’s original statements about Hardy occurred in the
summer of 2021.
{¶7} Deputy Logan Clevidence (“Clevidence”) of the Henry County
Sheriff’s Department testified he received items of clothing from the victim’s
mother. The clothing was identified as two pairs of shorts – one pink and white and
the other blue and white. Clevidence testified that the shorts were both in the same
bag.
{¶8} Khalia L. (“Khalia”) testified that she was Hardy’s fiancé at the time in
question and was the victim’s sister. On the night in question, Khalia, Hardy, and
the victim were at a party to celebrate her father’s business. When the party ended,
Khalia drove the victim and Hardy back to the house. At her home, the victim went
into the kids bedroom while Khalia and Hardy went into the master bedroom.
Khalia testified that neither pair of shorts that the victim wore belonged to Khalia.
On the night the rape was alleged to have occurred, the victim did not wake her up
and she did not hear anything.
{¶9} In April of 2022, the victim was again at Khalia’s home and was
sleeping on the couch. When Khalia woke up, the victim told her what Hardy had
done. Khalia then took the victim to the garage to wait while Khalia went inside to
speak with Hardy. Hardy denied doing anything. Khalia called 9-1-1. On cross-
examination Khalia testified that on the night of the alleged rape, Hardy went to bed
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at the same time she did. She did not hear anything in the night. The day after the
alleged rape, the victim did not say anything to Khalia.
{¶10} Doctor Randall Scott Schlievert (“Schlievert”) testified that he was a
child abuse pediatrician in Toledo, Ohio. On June 1, 2022, Schlievert examined the
victim. The victim told Schlievert that Hardy had raped her. When asked why she
disclosed the alleged rape at that time after remaining silent for so long, the victim
stated it was because Hardy had tried to kiss her again. The physical examination
of the victim showed nothing abnormal, which was to be expected given the history
provided. On cross-examination, Schlievert testified that the exam results do not
indicate one way or the other that a rape occurred.
{¶11} Deputy Blake Musshel (“Musshel”) of the Henry County Sheriff’s
Department testified that he responded to a call on April 24, 2022, regarding a
possible sexual assault. Upon his arrival, Musshel made contact with the victim and
her mother. The victim was crying and emotional and her mother was hugging her.
Musshel also spoke with Hardy who claimed that the victim’s parents made it up
because they did not like him. Hardy denied the allegations.
{¶12} Andrea B. (“Andrea”) testified that she is the mother of the victim.
Andrea testified that in June 2021, there was a party at her husband’s business that
was attended by Hardy and the victim along with other members of the family,
employees, and customers. Andrea admitted that she knew the victim was drinking
that night. Andrea did not find out for almost a year that something had occurred
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between the victim and Hardy. The night of the alleged rape, the victim called
Andrea asking to be picked up because she did not feel good. Eventually, the victim
indicated that she would be fine until morning when Khalia brought her home. The
morning the victim came home she started bleeding and asked Andrea why it was
happening. Andrea thought it was just the victim starting her period, but the
bleeding stopped after a few hours. Andrea chalked it up to just spotting and did
not give it any more thought.
{¶13} In April of 2022, Andrea’s son called her at around four in the morning
about the victim. Andrea, along with her husband, left immediately to go to the
victim without even bothering to get out of her pajamas. Andrea drove and tried to
get there as fast as possible. Andrea learned that the victim had kept the clothing
the victim wore in June of 2021 in her closet following the alleged rape. When they
returned to their home, Andrea and the victim retrieved the bag of clothing from the
victim’s closet and took the bag to the police. Before June 2021, the victim was
described as spunky and outgoing. After June 2021, the victim became quiet and
withdrawn. The victim’s grades went from being straight As to C’s and lower.
Andrea testified that since June of 2021, the victim had lost substantial weight. On
cross-examination, Andrea admitted that she did not suspect sexual assault when
the victim’s behavior changed. The victim did not tell Andrea because she was
afraid.
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{¶14} Detective Sergeant Arlen Cohrs (“Cohrs”) testified that he is a
certified Master Criminal Investigator and was trained in conducting forensic
interviews with juveniles. According to Cohrs, it is common for victims of sexual
assault to delay disclosure. Cohrs listened to the forensic interview conducted with
the victim and found her demeanor to be quiet and emotional. Cohrs testified that
teens like to communicate with friends on Snapchat because the conversation
disappears and it is not easily retrieved. Cohrs also testified that there had been no
probable cause to obtain a warrant for Hardy’s phone. When Andrea dropped off
the shorts, the evidence was placed in a temporary locker before being taken to the
Ohio Bureau of Criminal Investigation (“BCI”). In addition to the shorts, DNA
samples from Hardy and the victim were submitted for comparison. Cohrs
identified exhibits 6 and 7 as the reports from BCI regarding the shorts. On cross-
examination, Cohrs admitted that he did not put his attempt to speak with Hardy in
his report because he was unable to make contact. Cohrs testified that Hardy
voluntarily gave a DNA sample.
{¶15} Emily Feldenkris (“Feldenkris”) testified that she is a forensic scientist
in the DNA section at BCI. Feldenkris conducted the testing in this case. On the
blue and white shorts, a test for semen was conducted and the result was positive.
However, the sample on those shorts was too small to allow for comparisons. The
pink and white shorts were also positive for semen. That sample indicated a mixture
of the victim’s DNA and a DNA profile consistent with Hardy. “[I]n particular that
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DNA profile was located in the sperm fraction of [the] testing.” Tr. 323. Feldenkris
testified that the “estimated frequency of occurrence of the DNA profile that was
observed in the sperm fraction of that profile was rarer than 1 in 1 trillion unrelated
individuals.” Tr. 329. On cross-examination, Feldenkris admitted that she did not
know with 100% certainty that the DNA came from Hardy’s semen, but it was
“highly likely” given the strength of the profile and the biology results. Although a
microscopic evaluation could be done to verify it was actually semen, BCI skips
that and goes directly to the DNA results which do not change. According to
Feldenkris, the extraction method used was developed to isolate sperm cells, and in
her experience other substances to not behave the same way as sperm cells when
DNA is extracted.
{¶16} After this testimony, the State moved to admit its exhibits and then to
rest. Hardy’s counsel then moved for a Criminal Rule 29 motion for judgment of
acquittal. The State argued that given the testimony of the victim and the DNA
information showing that there was a 1 in 1 trillion chance of the contributor of the
sperm faction being anyone other than Hardy, the State had met its burden of making
a prima facia case. The trial court agreed and overruled Hardy’s motion. Hardy
then presented his case.
{¶17} Julie Heinig (“Heinig”) testified that she works at the DNA Diagnostic
Center in Fairfield, Ohio. Heinig testified that part of her job is to perform case
reviews, primarily for defense attorneys, to make sure the State’s testing was done
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correctly. Heinig was hired to review the processes and opinions rendered by
Feldenkris in this case. According to Heinig, BCI should have tested for sperm cells
specifically rather than just the DNA. Heinig testified that the DNA could have
come from anything, such as sweat and saliva as well as semen and sperm. Without
the separate tests, the only conclusion that can be made is that male DNA was
present, not that it came from sperm. On cross-examination Heinig admitted that
her center did not conduct the tests she alleged BCI should have done. Heinig also
agreed that the findings in Feldenkris’s report were accurate and that the male DNA
with sperm fraction was found in the crotch area of the victim’s shorts.
{¶18} Hardy took the stand in his own defense and testified that in April of
2022, he did not interact with the victim as he was outside with a friend before
entering the house and going to bed. Hardy stated that when he went in the house,
the victim, Khalia, and the children were sleeping in the living room. The next thing
he remembers is being woken up by Khalia telling him that the victim claimed he
had tried to kiss her and that her parents were coming with a gun. Hardy told Khalia
to call the police and she did. The police asked Hardy if he had tried to kiss the
victim and he denied it. Eventually the officers started to ask about the alleged rape
in 2021. Hardy denied that he had raped the victim or that any sexual conduct had
occurred between he and the victim.
{¶19} When questioned about the alleged rape in 2021, Hardy admitted that
he went to the party with Khalia. Hardy admitted that he had been drinking and was
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slightly intoxicated, but denied being drunk. The victim had been drinking and
smoking marijuana at the party. Hardy described her as drunk by the end of the
evening. When Hardy left the party with Khalia, the victim went with them. During
the drive to their home, the victim started vomiting on herself and the car. Then the
car broke down and they had to wait for the tow truck. Soon after, a police car
stopped beside them to see if they needed help and the officer remained until after
the tow truck left and they were ready to leave with a family member. Hardy denied
sexually assaulting the victim in the rear of the vehicle as was claimed by the victim.
{¶20} Once they arrived at the home, Khalia took the victim into the
bathroom to get her cleaned up. Hardy testified that he went outside to help clean
up the vehicle after the victim had been sick in it again. When Hardy went inside,
the victim was already in the children’s bedroom and Hardy went to his room.
Hardy changed into shorts and a t-shirt and then went to bed with Khalia. Hardy
denied going into the other bedroom or any interaction with the victim on that night.
Hardy claimed that the shorts in question here have been in his laundry before and
Khalia would wear the victim’s clothing at times. Hardy testified that in his opinion,
his DNA was found on the victim’s shorts from when he “did them in the laundry”
because he folds the clothes. When asked how his sperm fracture appeared in the
crotch area of the shorts, Hardy indicated that he had no idea.
{¶21} Following Hardy’s testimony, the defense rested its case. Closing
arguments were made and the jury was given its instructions before leaving to
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deliberate. Hardy did not renew his Criminal Rule 29 motion. The jury returned a
verdict of guilty as to the charge of rape. On July 7, 2023, the trial court sentenced
Hardy to an indefinite prison term of 9 to 13½ years. Hardy appeals from this
judgment and raises the following assignments of error.
First Assignment of Error
[Hardy’s] conviction was not supported by sufficient evidence presented at trial.
Second Assignment of Error
[Hardy’s] conviction was against the manifest weight of the evidence presented at trial.
Third Assignment of Error
The trial court erred by failing to grant a judgment of acquittal, pursuant to Crim.R. 29(A) on the rape charge and thereafter entering a judgment of conviction on this offense [that] was not supported by sufficient evidence.
Sufficiency of the Evidence
{¶22} In the first and third assignments of error, Hardy alleges that his
conviction was not supported by sufficient evidence. This Court recognizes that
Hardy failed to renew his Criminal Rule 29 motion at the conclusion of the case and
this would usually, absent plain error, result in a waiver of appeal on the issue. State
v. Brentley, 3d Dist. Allen Nos. 1-22-61 and 1-22-60, 2023-Ohio-2530 (failure to
renew a Crim.R. 29(A) motion at the conclusion of all evidence waives all but plain
error on appeal). However, in this case Hardy also claims in the first assignment of
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error that the conviction is not supported by sufficient evidence. Since the analysis
are identical, we will address the third assignment of error as well.
A sufficiency analysis “‘determine[s] whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law.’” State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997), quoting Black's Law Dictionary 1433 (6th Ed.1990). If the state fails to present sufficient evidence on every element of an offense, then convicting a defendant for that offense violates the defendant's right to due process of law. Id. at 386-387, 678 N.E.2d 541; see also Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
State v. Messenger, 171 Ohio St.3d 227, 2022-Ohio-4562, ¶ 13, 216 N.E.3d 653.
The question of whether the evidence presented at trial is legally sufficient to
support a verdict is a question of law and questions the adequacy of the evidence.
State v. Hulbert, 3d Dist. Van Wert No. 15-19-07, 2021-Ohio-2298, ¶ 5. “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.” State v. Jenks, 61 Ohio St.3d 259,
574 N.E.2d 492 (1991) superseded by constitutional amendment on other grounds.
Accordingly, “[t]he 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.” Id. “In deciding
if the evidence was sufficient, we neither resolve evidentiary conflicts nor assess the
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credibility of witnesses, as both are functions reserved for the trier of fact.” State v.
Jones, 1st Dist. Hamilton No. C-120570, 20130Ohio-4775, ¶ 33.
{¶23} Here, the State was required to prove that Hardy 1) engaged in sexual
conduct with another while 2) purposely compelling the person to submit by force.
R.C. 2907.02(A)(2). “Sexual conduct” includes vaginal intercourse as part of its
definition. R.C. 2907.01(A). “Force” is defined as “any violence, compulsion, or
constraint physically exerted by any means upon or against a person or thing.” R.C.
2901.01. In determining whether force is present, the key inquiry is whether the
victim’s will was overcome by fear or duress. State v. Stevens, 3d Dist. Alen No.
1-14-58, 2016-Ohio-446, ¶ 20, 58 N.E.3d 584.
{¶24} Here, the victim was a 14 year old girl and Hardy was the fiancé of her
older sister. The victim testified that Hardy came into the room and started kissing
her. She attempted to push him away, but he did not stop. The victim testified that
Hardy then pushed down her shorts and put his penis into her vagina. This testimony
is evidence of sexual conduct. The victim also testified that she was crying and
Hardy did not stop. Given the age of the victim, the relationship between the victim
and Hardy, and his failure to stop when she tried to push him away, a reasonable
juror could find that Hardy had engaged in force sufficient to overcome her will by
fear or duress. Viewing the evidence in a light most favorable to the State, it was
sufficient to support a conviction for rape. The first and third assignments of error
are overruled.
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Manifest Weight of the Evidence
{¶25} Hardy claims in his second assignment of error that his conviction was
against the manifest weight of the evidence.
When reviewing a judgment to determine if it is against the manifest weight of the evidence, an appellate court “review[s] the entire record, weighs the evidence and all reasonable inferences, considers the credibility of 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. Mendoza, 137 Ohio App.3d 336, 738 N.E.2d 822 (2000). See, also, State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). A new trial should be granted only in the exceptional case in which the evidence weighs heavily against conviction. Thompkins at 387, 678 N.E.2d 541. Although the appellate court acts as a “thirteenth juror,” due deference to the findings made by the fact-finder must still be given. State v. Moorer, 3d Dist. 13–12–22, 2013-Ohio-650, 2013 WL 684735, ¶ 29.
Hulbert, supra at ¶ 23.
{¶26} Hardy claims that his conviction is against the manifest weight of the
evidence because the testimony of the victim lacks credibility and the evidence
presented by Hardy was more credible. In this case, the only two people who knew
for sure what happened in that room were Hardy and the victim. The victim testified
that Hardy raped her. Hardy denied that he was even in the room. However, this
was not all the evidence. The DNA tests showed an indication that there was sperm
found in the shorts of the victim. The two DNA profiles were identified as
belonging to the victim and Hardy. The results showed that the odds of the male
DNA belonging to someone other than Hardy were 1 in a trillion. Although Hardy
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presented his own expert who testified that BCI should have conducted additional
tests to verify the male DNA came from the sperm cells and not another bodily fluid,
the expert agreed that the preliminary testing indicated that sperm was present and
that further testing identified the male DNA as belonging to Hardy. When
questioned on cross-examination, Hardy claimed his DNA was found because he
folded the laundry. However, he had no answer as to how sperm was found in the
victim’s shorts and only two DNA contributors were found with one being the
victim and the other being him. A review of the record before this Court does not
show that the jury clearly lost its way, that the evidence weighs heavily against
conviction, or that a manifest miscarriage of justice occurred. Thus, the conviction
is not against the manifest weight of the evidence and the second assignment of error
is overruled.
{¶27} Having found no prejudicial errors in the particulars assigned and
argued, the judgment of the Henry County Court of Common Pleas is affirmed.
WALDICK and MILLER, J.J., concur.
/hls
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