State v. Middlebrook

2022 Ohio 2605

• Court: Ohio Court of Appeals
• Decided: July 29, 2022
• Docket: 29257
• Status: Published

Opinion

[Cite as State v. Middlebrook, 2022-Ohio-2605.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 29257 : v. : Trial Court Case No. 2019-CR-1726 : ANTHONY MIDDLEBROOK : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 29th day of July, 2022.

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, P.O. Box 340214, Beavercreek, Ohio 45434 Attorney for Defendant-Appellant

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TUCKER, P.J.

{¶ 1} Anthony Middlebrook appeals from his conviction on one count of raping a

child under 10 years of age, a first-degree felony.

{¶ 2} In his sole assignment of error, Middlebrook contends his conviction was

against the manifest weight of the evidence. He asserts that his wife’s eyewitness

testimony was not credible. He also points out that he denied the incident.

{¶ 3} We conclude that Middlebrook’s conviction was not against the weight of the

evidence. In addition to the testimony of his wife, who saw the incident, the State

presented other compelling evidence, including DNA evidence and Middlebrook’s own

incriminating statements. Accordingly, the trial court’s judgment will be affirmed.

I. Background

{¶ 4} The charge against Middlebrook stemmed from a complaint about his

performing oral sex on his three-year-old daughter. At trial, Middlebrook’s wife testified

that she walked into their house on May 25, 2019, while participating in a neighborhood

cookout and saw him and the child in the master bedroom. The child was propped up on

a pillow with her pants and underwear off and her legs in the air in a “V” position.

Middlebrook was on his stomach with his head between the child’s legs.

{¶ 5} Middlebrook’s wife yelled out the window for a neighbor to call 911 because

he was raping their daughter. One neighbor called 911 while another neighbor, Brooklyn

LeMaster, ran inside to help. LeMaster picked up the child, who was crying and trying to

pull up her shorts. The child told LeMaster that Middlebrook had kissed her “peaches” -3-

and pointed to her private area. The child expressed concern that Middlebrook was going

to be mad and that she was going to get him in trouble. The child later pointed to her

tongue and told a detective that Middlebrook had kissed her stomach and “butt.”

{¶ 6} On the night of the incident, the child underwent a medical examination and

various parts of her body were swabbed. The samples were tested, and Middlebrook’s

DNA was found on swabs taken from the child’s exterior genitalia, perianal area, and

inner thigh. Several days after the incident, forensic interviewer Ashley Back spoke with

the child, who again stated that Middlebrook had kissed her “butt” with his tongue. While

making the statement, the child pointed between her legs near her vagina. The child

reported that she had asked Middlebrook to stop. She described feeling his facial hair

and his tongue. She also stomped her feet during the interview and said Middlebrook

made her “mad, mad, mad.”

{¶ 7} When police arrested Middlebrook, he claimed that he merely had been

changing the child’s diaper or panties. At the police station, detective Elizabeth Alley

attempted an interview but terminated it out of concern that Middlebrook was intoxicated.

Three days later, she did conduct the interview. Middlebrook claimed that he had been

drinking and playing chess at a friend’s house before going home and going to bed. He

professed not to remember having his face between the child’s legs. Eventually, however,

Middlebrook acknowledged that the child had no reason to lie and that what she alleged

was true. He told the detective that the “pieces were coming together” in his mind and

that he actually did what the child claimed. He stated that he was sorry. He also admitted

that his DNA would be on the child’s vagina and that he thought the child’s DNA would -4-

be in his mouth. Although the child’s DNA was not found in Middlebrook’s mouth, the

State presented testimony that saliva likely would wash away foreign DNA from a

person’s mouth. The State also presented testimony about Middlebrook’s being seen

“swishing” water around in his mouth and spitting it out in a jail restroom after his arrest.

{¶ 8} Following the State’s case, Middlebrook testified in his own defense. He

explained that he had been drinking and playing chess at a friend’s house. He then

returned home and fixed something to eat for himself and his daughter. After doing so,

he fell asleep in bed while watching television. He awoke to find the child straddling him

and bouncing up and down without any pants. Middlebrook tried to arise, and the child

fell to his side just as his wife entered the room and saw what was happening.

Middlebrook claimed his wife and two men proceeded to beat him and knock him

unconscious. With regard to his incriminating statements to the detective, Middlebrook

characterized them as a misunderstanding. He also suggested that he was incoherent

due to a head injury caused by his wife and the two men beating him. Middlebrook insisted

that he did not engage in oral sex with his child.

{¶ 9} Based on the evidence presented, a jury found Middlebrook guilty. The trial

court imposed a sentence of 15 years to life in prison and designated him a Tier III sex

offender. This appeal followed.

II. Analysis

{¶ 10} When a conviction is challenged on appeal as being against the weight of

the evidence, an appellate court must review the entire record, weigh the evidence and

all reasonable inferences, consider witness credibility, and determine whether, in -5-

resolving conflicts in the evidence, the trier of fact “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. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). “[T]he

cautious exercise of the discretionary power of a court of appeals to find that a judgment

is against the manifest weight of the evidence requires that substantial deference be

extended to the factfinder’s determinations of credibility. The decision whether, and to

what extent, to credit the testimony of particular witnesses is within the peculiar

competence of the factfinder, who has seen and heard the witness.” State v. Lawson, 2d

Dist. Montgomery No. 16288, 1997 WL 476684, *4 (Aug. 22, 1997). A judgment should

be reversed as being against the manifest weight of the evidence “only in the exceptional

case in which the evidence weighs heavily against the conviction.” State v. Martin, 20

Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

{¶ 11} With the foregoing standards in mind, we conclude that Middlebrook’s

conviction was not against the weight of the evidence. At trial, he denied engaging in oral

sex with his daughter, but his testimony described a seemingly unlikely scenario. Prior to

trial, he gave other varying and inconsistent accounts of what had occurred. At one point,

he effectively admitted to the detective that he had engaged in the charged conduct.

Middlebrook’s incriminating statements to the detective were consistent with the child’s

allegations, the eyewitness testimony of his wife, and the State’s DNA evidence. Having

reviewed the record, we do not find that the jury clearly lost its way in disbelieving

Middlebrook’s trial testimony and finding him guilty. This is not a case in which the

evidence weighs heavily against the conviction. -6-

III. Conclusion

{¶ 12} The assignment of error is overruled, and the judgment of the Montgomery

County Common Pleas Court is affirmed.

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DONOVAN, J. and EPLEY, J., concur.

Copies sent to:

Mathias H. Heck, Jr. Andrew T. French Robert Alan Brenner Hon. Dennis J. Adkins