State v. Nagel

935 N.E.2d 482, 188 Ohio App. 3d 348
CourtOhio Court of Appeals
DecidedJune 30, 2010
DocketNo. WM-09-018
StatusPublished

This text of 935 N.E.2d 482 (State v. Nagel) 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. Nagel, 935 N.E.2d 482, 188 Ohio App. 3d 348 (Ohio Ct. App. 2010).

Opinion

Pietrykowski, Judge.

{¶ 1} Defendant-appellant, Martin Todd Nagel, appeals the judgment of the, October 26, 2009 Williams County Court of Common Pleas, which, following a jury trial convicting him of rape and multiple counts of sexual battery, sentenced appellant to life imprisonment. For the reasons that follow, we affirm the trial court’s judgment.

{¶ 2} On January 29, 2009, appellant was indicted on multiple counts of rape, gross sexual imposition, and sexual battery. The charges were alleged to have occurred from 2001 to 2008 and involved appellant’s live-in girlfriend’s daughter, “A.W.,1” who was 11 years old when the alleged incidents began. In 2008, the victim gave birth to appellant’s child. On February 4, 2009, appellant entered a not-guilty plea to all the counts in the indictment.

{¶ 3} On June 2, 2009, appellant filed a motion in limine to exclude all evidence relating to the DNA sample provided by appellant. Appellant argued that because the DNA results were not relevant to Counts I through VIII, reference [352]*352to the test results would be prejudicial. Alternatively, appellant filed a motion to separate the trial on Counts I through VIII from Counts IX and X. On June 29, 2009, the trial court denied both motions.

{¶ 4} On June 30, 2009, appellant filed a motion in limine to exclude all evidence relating to appellant’s April 1, 2009 polygraph examination. Appellant argued that although the polygraph was stipulated to, his former counsel improperly agreed to “multifaceted, confusing and misleading questions.” The state opposed the motion, asserting the clear language of the stipulation and arguing that the questions were not confusing and were reviewed and agreed upon prior to testing. The Polygraph Agreement and Stipulation provided:

{¶ 5} “5. The above-named polygraph examiner shall be permitted if called as a witness by the State of Ohio or by the defendant to testify at any criminal trial * * * as an ‘expert’ regarding all aspects of the test administered, and such testimony shall be offered and received as evidence in the trial without objections of any kind by any party to this Agreement except as to the weight of evidence it is to be given * * *.”

{¶ 6} The polygraph test questions provided:

{¶ 7} “1. While living in the trailer on County Road E, did you permit or allow [A.W.] to fondle your penis with her hand?
{¶ 8} “2. While living in the trailer on County Road E, did you put your penis in [A.W.]’s mouth or vagina?
{¶ 9} “3. While living in the house on County Road 9, did you knowingly or intentionally have sex with [A.W.]?
{¶ 10} “4. While living in the house on County Road A, did you knowingly or intentionally have sex with [A.W.]?”

{¶ 11} On July 22, 2009, the court denied the motion.

{¶ 12} On September 25, 2009, four days before the commencement of the trial, appellant filed a motion requesting funds for a private investigator, a motion to exclude references to the accuser as “victim,” and a motion for emergency funds for fees and to hire expert witnesses. Appellant also filed motions to appear at trial in civilian clothing and without restraints. Further, appellant filed a motion requesting a hearing pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993), 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469, arguing that the methodology used in the polygraph examination was unreliable and led to “misleading and unreliable results.”

{¶ 13} The trial court denied appellant’s motions for funds for a private investigator, to refrain from referring to the accuser as “victim,” and for funds to hire an expert witness. The court granted appellant’s motions to appear in [353]*353civilian clothing and without restraints. The Daubert hearing was held, out of the hearing of the jury, on the second day of trial prior to polygraph examiner Larry Silcox’s testimony.

{¶ 14} On September 29, 2009, the trial commenced. A summary of the evidence presented is as follows. Williams County Sheriffs Deputy Monica Herman testified that on October 22, 2008, she received a call from the Edgerton Police Department about an alleged rape/molestation case that reportedly occurred outside the Edgerton city limits. Deputy Herman stated that three females had delivered a letter that the victim, A.W., had written to her ex-boyfriend explaining that she had been molested from the age of 11. Herman briefly spoke with A.W.; A.W. was “edgy” and just wanted to get her son and leave the area for the night. Deputy Herman went to A.W.’s mother’s and appellant’s house to pick up the child; according to Herman, appellant stated, “[T]hanks for ruining my place to live” and that he was “tired of being accused.” Herman acknowledged that when she spoke with A.W., she could remember only three specific instances of abuse.

{¶ 15} Williams County Sheriffs Deputy Shaun Fulk testified that he spoke with appellant about the allegations. Appellant denied having a sexual relationship with A.W.

{¶ 16} Polygraph examiner Larry Silcox testified that he had conducted appellant’s April 1, 2009 polygraph examination. Silcox explained that the pretest interview includes a careful review of the test questions. Silcox stated that appellant was asked four questions relating to various locations and sexual activities allegedly involving the victim. According to Silcox, appellant’s answers were deceptive as to three of the four questions. After reviewing the test results, appellant continued to deny engaging in sexual contact with A.W.

{¶ 17} During cross-examination, Silcox was extensively questioned about the form of the questions. Specifically, Silcox was asked about the compound nature of the questions and the fact that a polygraph examination requires a “yes” or “no” answer, not a narrative answer. Silcox was also questioned about an article from the American Polygraph Association that criticized the use of compound questions during a polygraph examination. However, Silcox stressed that he reviewed the questions “in detail” with appellant prior to the testing to make certain that he understood them.

{¶ 18} The parties entered into a stipulation regarding the chain of custody— i.e., the collection, storage, and delivery, of the evidence obtained for DNA analysis. Julie Cox, a forensic scientist at the Ohio Bureau of Criminal Identification and Investigation, testified that she performed DNA tests on saliva swabs taken from appellant, appellant’s son, A.W., and A.W.’s child. Cox stated that her findings were that appellant could not be excluded as the father of A.W.’s [354]*354child. Statistically, the probability that appellant is the child’s father is 99.9999 per cent.

{¶ 19} A.W. testified that appellant moved in with her mother, sister, and brother when she was six months old. When A.W. was four years old, appellant’s son moved in with them. A.W. explained that she called appellant “Dad” and that he was in charge of the rulemaking and discipline of the children in the household. A.W. testified regarding the dates and locations of the incidents. Typically, she could remember dates only in relation to where they lived at the time. A.W.

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Bluebook (online)
935 N.E.2d 482, 188 Ohio App. 3d 348, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-nagel-ohioctapp-2010.