State v. Love

550 N.E.2d 951, 49 Ohio App. 3d 88, 1988 Ohio App. LEXIS 2260
CourtOhio Court of Appeals
DecidedJune 8, 1988
DocketC-870426
StatusPublished
Cited by22 cases

This text of 550 N.E.2d 951 (State v. Love) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Love, 550 N.E.2d 951, 49 Ohio App. 3d 88, 1988 Ohio App. LEXIS 2260 (Ohio Ct. App. 1988).

Opinion

Per Curiam.

Defendant-appellant James L. Love was charged in a three-count indictment with rape of a person under the age of thirteen by force or threat of force, gross sexual imposition and attempted rape. The charges were tried to a jury. At the close of the state’s case, the trial court granted defendant’s Crim. R. 29 motion for acquittal on the charge of gross sexual imposition. The remaining charges were submitted to the jury, which found defendant not guilty of attempted rape but guilty of rape. From the judgment on that verdict and the sentence, defendant has taken the instant appeal, in which he advances three assignments of error.

In the spring of 1986, the victim, who was then twelve years old, became acquainted with defendant when her mother and defendant began dating. The victim and her mother spent an increasing amount of time with defendant at his apartment, and the victim frequently stayed with defendant while her mother was at work. The victim testified at trial that, in mid-June 1986, defendant compelled her to submit to vaginal intercourse and that defendant’s sexual assaults thereafter continued on a weekly basis throughout the summer. The charges against defendant arose out of two specific instances in this continuing course of conduct.

Defendant was charged with rape in connection with an alleged act of vaginal intercourse on August 26, 1986. At trial, the victim recounted that, on that date, her mother received a long-distance telephone call. The victim took the call at her home and then proceeded to a neighboring tavern to summon her mother. At defendant’s suggestion, the victim accompanied defendant from the tavern to his apartment. The victim retired on the floor of the living room and later awoke to find defendant upon her.

The charges of gross sexual imposition and attempted rape arose in' connection with circumstances sug *89 gestive of attempted sexual conduct on September 7, 1986. On that date, the victim was left with defendant at his apartment while her mother went to work. The victim’s mother returned to the apartment within five minutes of her departure, heard the victim scream, and knocked on the door. After some delay, defendant admitted the victim’s mother to the apartment, where she found the victim, half-clad, with a necktie tied to her arm. She observed a second necktie tied to the frame of an open sofa bed in the living room. The victim’s mother instructed her to dress and wait in the car. A physical altercation ensued between defendant and the victim’s mother which culminated in defendant’s departure from the apartment at knifepoint. The victim’s mother then summoned the police.

When the police arrived at defendant’s apartment, the victim and her mother were present, invited the officers inside and related to them what had occurred. From the vicinity of the open sofa bed, the officers retrieved a packet of spermicide suppositories and two neckties, one tied to the bed frame and one entangled in the sheets. The victim’s mother then directed the officers to the bathroom closet, where they recovered a variety of items, including a small quantity of marijuana and an array of sexual devices. From a bookshelf in the living room, the officers recovered a knife.

Approximately one month later, the victim was examined by a physician. The physician found evidence “consistent with repeated blunt * * * penetrating trauma to the genital area,” and ordered a pregnancy test. The test results were positive and showed that the victim was within the first trimester of pregnancy. The pregnancy was thereafter terminated by an abortion.

Defendant, in his first assignment of error, contends that the trial court erred in overruling his motion to suppress all evidence seized in the war-rantless, nonconsensual search of his apartment. We find no merit to this contention.

Prior to trial, defendant formally moved for suppression of the items seized from his apartment on September 7. Following a hearing, the trial court granted the motion in part, suppressing the items recovered from the bathroom closet, but denied the motion with respect to the suppositories and neckties recovered from the area of the sofa bed and the knife recovered from the living-room bookcase.

We note initially that the evidence that the court declined to suppress, i.e., the suppositories, the neckties and the knife, were relevant only to the charges of attempted rape and gross sexual imposition of which defendant was ultimately acquitted. Thus, it may be said that there was no prejudice to defendant when the court admitted those items. •

Assuming that some prejudice arose from that admission because the defendant was convicted of rape, we find that neither the initial entry of the officers into defendant’s apartment nor their subsequent seizure of items in plain view offends Fourth Amendment principles. The officers proceeded to defendant’s apartment in response to a radio report of a rape. When they arrived, the victim and her mother were in the apartment. Under the circumstances, the officers’ entry into the single room of defendant’s efficiency apartment was permissible upon a reasonable belief that the victim might be in need of immediate aid. See Thompson v. Louisiana (1984), 469 U.S. 17; Mincey v. Arizona (1978), 437 U.S. 385. Once they were lawfully inside the apartment, the officers were justified in seizing evidence of the *90 crime in plain view. See Thompson, supra, at 22; State v. Hale (Dec. 15, 1982), Hamilton App. No. C-810856, unreported. We, therefore, discern no error in the trial court’s refusal to suppress the suppositories, the neckties or the knife and, accordingly, we overrule defendant’s first assignment of error.

In his second assignment of error, defendant challenges the denial of his motion for mistrial, made following the closing arguments of counsel and based on allegedly improper and prejudicial remarks by the prosecutor in his summation on defendant’s failure to testify or to present evidence in his own defense. The challenge is untenable.

In the initial portion of his closing argument, the prosecutor stated:

“Only 4 witnesses testified * * *. You didn’t hear from [the victim’s] uncle, for some reason the defense didn’t call him. The boys in the neighborhood weren’t called. Where are they if they are involved in this? They weren’t here. No reason to call them, State has to prove the case, I will concede that, defense doesn’t have to call those witnesses but they could have if there was something there, if it was more than just smoke to get you to start thinking over here whether the facts are here.”

The trial court overruled defense counsel’s objection to the remarks, noting that the prosecutor had qualified the statement, but then reminded the jury that the state bears the burden of proving the defendant’s guilt and that the defense is under no obligation to prove otherwise.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Truesdell
2024 Ohio 5376 (Ohio Court of Appeals, 2024)
State v. Wright
2024 Ohio 851 (Ohio Court of Appeals, 2024)
State v. Stuart
2020 Ohio 3239 (Ohio Court of Appeals, 2020)
State v. Taylor
2014 Ohio 3134 (Ohio Court of Appeals, 2014)
State v. Leonard
2013 Ohio 1446 (Ohio Court of Appeals, 2013)
State v. Whitt
2011 Ohio 3022 (Ohio Court of Appeals, 2011)
State v. Kepiro, 06ap-1302 (9-6-2007)
2007 Ohio 4593 (Ohio Court of Appeals, 2007)
State v. Adams, Unpublished Decision (8-24-2005)
2005 Ohio 4360 (Ohio Court of Appeals, 2005)
State v. Tanner, Unpublished Decision (3-9-2005)
2005 Ohio 998 (Ohio Court of Appeals, 2005)
State v. Byrd, Unpublished Decision (12-30-2004)
2004 Ohio 7127 (Ohio Court of Appeals, 2004)
State v. Reinhardt, Unpublished Decision (12-2-2004)
2004 Ohio 6443 (Ohio Court of Appeals, 2004)
State v. Alexander, Unpublished Decision (10-18-2004)
2004 Ohio 5525 (Ohio Court of Appeals, 2004)
State v. Senu-Oke, Unpublished Decision (10-9-2003)
2003 Ohio 68 (Ohio Court of Appeals, 2003)
State v. Jones
683 N.E.2d 87 (Ohio Court of Appeals, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
550 N.E.2d 951, 49 Ohio App. 3d 88, 1988 Ohio App. LEXIS 2260, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-love-ohioctapp-1988.